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Roswell P. Flower Library
THE GIFT OF

ROSWELL P. FLOWER
FOR THE USE OF
THE N. Y. STATE VETERINARY COLLEGE.
1897

 

 
Cornell University Library

SF 955.047 1896

The law of horses, i

AAT
00 870 828 va

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

3 1924 0
OLIPHANT’S

LAW OF HORSES.
Aon

THE

LAW OF HORSES,

INCLUDING THE LAW OF

Innkeepers, Veterinary Surgeons, &r,

HUNTING, RACING, WAGERS & GAMING.

BY

GEORGE HENRY HEWITT OLIPHANT,

OF TRINITY COLLEGE, CAMBRIDGE, B.A., AND INNER TEMPLE, ESQ., BARRISTER-AT-LAW.

   

FIFTH EDITION.
~ LIBRARY,

ae
CLEMENT ELPHINSTONE LLOYD, B.A., Oxo ve

OF THE INNER TEMPLE, ESQ., BARRISTER-AT-LAW.

   
 

   

BY

“Thou that mayst fortune to be of myne opinion and condytion to love
horses, take hede that thou be not beguiled as I have been a hundred times
and more.”—Boke of Husbandry, by Sir A. Fitaherbert, Justice of the Court of

Common Pleas.

LONDON:
SWEET & MAXWELL, Liwirep, 3, CHANCERY LANE,

Law Publishers.

MEREDITH, RAY, & LITTLER, MANCHESTER;
THACKER, SPINK, & CO., CALCUTTA ;
C. F. MAXWELL, MELBOURNE & SYDNEY.

1896.
nN
ten OA ey

4

Wt3

7 fa
i) Db tr Ss

“*Caveat emptor.”—Legy. Max.

“*Kqui donati dentes non inspiciuntur.”—D. Hieron. in Prom. Epist. ad
LEphes.

“* Primus Ericthonius currus et quatuor ausus
Jungere equos.”—Virg. Georg.

«¢Tu qui ceteris cavere didicisti, in Britannia ne ab essedariis decipiaris
caveto.”"—Ctc. Ep. Lib. 7, Ep. 6.

“* Seu quis, Olympiace miratus premia paline,
Pascit equos . ek ew 8
Corpora precipue matrum legat.”—Virg. Georg.

SF
TES
Og <
EGE

BRADBURY, AGNEW, & co. LD., PRINTRRS, LONDON AND TONBRIDGE.
PREFACE

TO THE FIFTH EDITION,

——-

Ow1ne partly to the course of legislation, and
partly to the very considerable increase of case law
in relation to many of the subjects dealt with in
this work, the preparation of the present Edition
has been attended with unusual difficulty. The
codification of the law relating to the sale of goods
by the Sale of Goods Act, 1893, has rendered it
necessary to incorporate a number of the sections
of that Act in the text, and to make frequent
references to many other sections, but, in so doing,
the Editor has taken great pains to preserve as
much of the original text as is consistent with
the provisions of the statute, and this more par-
ticularly where the cases cited as authorities are
decisions upon contracts relating to the sale of
horses as distinguished from the sale of other

goods.

The provisions of a variety of other statutes,
including the Gaming Act, 1892, and the Betting
PREFACE TO THE FIFTH EDITION,

and Loans (Infants) Act of the same year, have
also been incorporated, in so far as they affect the

subject-matter of the work.

Independently of legislation, the decisions upon
the various subjects dealt with have been suffi-
ciently numerous to involve considerable altera-
tions in and additions to the text, but these,
owing to the amount of obsolete or inappropriate
matter which has been eliminated, have been
effected, so far as regards Parts I. and IL,

without any corresponding increase of bulk.

With regard to Part III., dealing with the law
relating to Racing, Gaming, and Wagers, the altera-
tions are of a more extensive nature, the Gaming
Act, 1892, and the numerous decisions upon the
construction of several of the other statutes by
which the law upon these subjects is regulated,
having rendered it necessary to re-write and very
considerably enlarge the greater part of this portion
of the work.

The Appendix has been very considerably cur-
tailed, and is now confined to the more important
and voluminous of the statutes referred to in the
text, and these appear in a somewhat mutilated

condition, owing to the pruning involved by the
PREFACE TO THE FIFTH EDITION. vil

various Statute Law Revision Acts and other
repealing statutes which have been passed since

the publication of the last Edition.

The plan of referring to the more important
decisions in the United States, adopted by the
present Editor in the last Hdition, has been adhered
to. References are given to the Revised Reports as
well as to contemporary reports, both in the Table
of Cases and in the footnotes. The Table of
Statutes has been rendered more complete by
indicating the page upon which each section is
cited; and the Index has been subjected to a

careful revision.

CLEMENT E. LLOYD.

4, Kine’s BencH WALK, TEMPLE :
May, 1896.
PREFACE

TO THE FIRST EDITION.

 

Tue object of the present Treatise is to lay before the
profession and the public, in as short and convenient a
form as possible, the Law of Contracts concerning Horses,
whether it be in buying, selling, hiring, or in any other
manner dealing with them; to ascertain the liabilities in-
curred by parties either on “the road,” through negligent
driving, or in “the field,” by riding over the lands of
another ; also to explain the present state of the law with
regard to Racing, Wagers, and Gaming, in connection
with the recent alterations effected by the Act of Victoria.
The Appendix contains some very late cases, a few im-
portant Statutes, and other information which may be
found useful for general reference. An attempt has been
made, by a judicious division of the subject, and the
introduction of marginal notes, to make the text as acces-

sible as possible.

G. H. H. O.
TEMPLE : May 15th, 1847.
TABLE OF CONTENTS.

 

Sep

PAGE

TABLE OF CASES - : ; . xiii

TABLE OF STATUTES ; xxxviii

INTRODUCTION . ‘ ‘ ; . xii
Parr I.

CONTRACTS CONCERNING HORSES, &c.

 

CHAPTER I.

Buyine, SELLING AND ExcHaNcinc; Tur REQUISITES OF THE
SraTuTs oF Fravps; Drnivery AND PAYMENT, AND THE

Law as To SunpAay Dating z ‘j 2 ‘ 1—32
CHAPTER II.
HorsEDEALERS, REPOSITORIES AND AUCTIONS . : j . 3838—48

CHAPTER III.

Fairs AND Markets Overt; Horse STEALING, AND THE RE-
COVERY OF STOLEN HorsEs . : : : 5 ; 49—61

CHAPTER IV.

Wat DIsEASES oR BAD HABITS CONSTITUTE UNSOUNDNESS OR
VICE . 62—102

CHAPTER V.

WaRRANTY ; SALE AND WARRANTY BY AN AGENT ; AND PATENT
DEFECTs . . ss ; 2 : : : 5 . 103—133
nw

TABLE OF CONTENTS.

CHAPTER VI.
PAGE
Warranty DIsTINGUISHED FROM REPRESENTATION * 134—140
CHAPTER VII.
FrRAvUpULENT CONTRACTS ‘ ‘ Fs ; i . . 141—156
CHAPTER VIII.
BREACH OF WARRANTY . “ : P ‘ ‘ 157— 66
CHAPTER IX.
PLEADING, EVIDENCE AND DAMAGES . . , 167—199
CHAPTER X.
IyNKEEPERS, VETERINARY SURGEONS, FARRIERS, HORSE-BREAKERS,
TRAINERS, &C. . : : : 3 ‘ ; 200—220
CHAPTER XI.
Livery-STABLE KEEPELS, AGISTERS, AND THE HrrinG AND Bor-
RrowinG Horses. ‘ ‘ r ‘ : : . 221—248
CHAPTER XII.
Carryinc Horsks . ‘ ‘ : ‘ i 249—278

Part II.

NEGLIGENCE IN THE USE OF HORSES, &.

 

CHAPTER I.

THE CRIMINAL AND CIVIL LIABILITIES OF PARTIES FOR INJURIES
INFLICTED OR INCURRED IN DRIVING, ALSO THE RULE OF
THE Roap, AND NreciicEentT Drivine By A SERVANT . 279—328
TABLE OF CONTENTS. XI

CHAPTER II.
PAGE

FERocIoUsS AND Vicious ANIMALS . i F 329—340

CHAPTER III.

Tuer LIABILITIES OF PARTIES HUNTING OR TRESPASSING UPON
THE LANDS OF ANOTHER , i F 841—350

Parr III.

RACING, WAGERS, AND GAMING.

 

CHAPTER I.

Tueir History, Risk, AND Progress In Tats Country . 351—370
CHAPTER II.

Racine, STAKEHOLDERS, AND STEWARDS. : , . ,871—397

CHAPTER III.

WAGERS . ‘ ‘i 5 ‘ % 4 . . 898—420

CHAPTER IV.

GAMING . ‘ ‘ 2 : 4 i é ‘ . 421—448

CHAPTER V.

BETTING-HOUSES AND GAMING-HOUSES . ‘i 7 . « 449—481
xi TABLE OF CONTENTS.

APPENDIX OF STATUTES.

——

82 Henry VIII. c. 9 (Unlawful Games) .

2 & 3 Philip & Mary, c. 7 (Sale of Horses)

31 Eliz. c. 12 (Sale of Horses)

2 Geo. II. c. 28 (Unlawful Games) .

12 Geo. II. ce, 28 (Games of Hazard) . 4
13 Geo. II. c. 19 (Sales by Lottery, Games of Hasind)
18 Geo. II. c. 34 (Games of Hazard)

5 & 6 Will. IV. c. 41 (Gaming Securities)

8 & 9 Vict. v. 109 (Gaming Act, 1845)

9 & 10 Vict. c. 48 (Art Unions)

16 & 17 Vict. v. 119 (Betting Houses) .

17 & 18 Vict. c. 38 (Gaming Houses)

87 & 38 Vict. c. 15 (Betting Houses

42 & 48 Vict. v. 18 (Racecourses’ Licensing)

INDEX
TABLE

A.
PAGE
ABBOTT v. Freeman, 35 L. T., N.S.

TOS AAC, Ae sen ccectanusaie asters
Acebal v. Levy, 10 Bing. 378
Adam v. Richards, 2 H. Bla. 573 ;

R. RB. 508...

 

ie 62, 170
Adams v. Glasgow and South W. estern

Rail. Co., 2 Ct. of Sess.

 

 

 

 

Cas., 4th ser., 215......... 300
v, Grave, 1 Cr. & M. 380...... 38
v. oe 24 L. T., N.S.
502. 346
Addison ». “Gandasequi, “t Taunt,
574; 13 R. RB. 689.. severe 120
Ainsley ». Brown, N. P. 1845......... "66, 92
Aldridge v. Great Western Rail. Co. 5
33 L. J., C. P. 161.. saga 266
Alebury v. Walby, 1 Stra. 231 ...... 174
Alexander v. Gibson, 2 Camp. 555 ;
11 RB. B. 797 ...1.4...46, 122,
123, 181
——-  v. Laidley, N. P. 1847... 306,
307
Allday v. Great Western Rail. bh
34 L. J., Q. B. 5.. 261
Allen v. Bennett, 3 Taunt. 169 ;
R. R. 633 . Seheusees o ub
—— v. Denstone, 8 C. “ze P. "760 . 125
v. Hearn, 1T. R. 56; 1 RB. R,
149 os sesnnausiieasonsacandaarse 398, 413
—— v. Pink, 4 M.& W. 140 ...... 14, 180
—— v. Sharpe, 2 Ex. 352 ........... 33
v, Smith, 9 Jets N. 8S. 230,
1284 208

Allport e Nutt, 1G. B. 974; 14

Led 35 °C. Pi 272. asisvies 427, 428, 429, a

437

Anderson v. Hume, 46 J. P. 825...... 470
Andrews v. Belfield, 2 C. B.. N.S.

779 . 164
Angus . “McLachlan, 23 ‘Ch. Dy, 330;
52 L. J., Ch. 587; 48 L. T., N.S.

863 ; 31 W. BR. 641 3 ..207, 211

Anon., 3 Salk. 157...0.... wathterwands 1

 

OF CASES.

PAGE
Anthony v. Halstead, 37 L. T., N. 8.

433. 114, 117, 138
Applebee v. ‘Percy, hy oe ee

647 5 43 L. J., C.P. 365 ; 30 L. T.,

N. 8. 785 ; 22 W. R. 704.
Applegarth ’v. Colley, 10 M. & W.

723; 12L. J., Ex. 34 ...... 359, 365, 445
Arboin v. Anderson, 1Q. B. 498......
Arbon v. Fussell, 3 F. & F. 152......
Archer v. Baynes, 5 Ex. 629 . 17
Armistead v. White, 20 L. J., 'Q. B.

333

524 . 203
Armstrong . “Stokes, L. ‘R. 7 Q. 'B.

598; 41 L. J., Q. B. 253 ; 26 L.T.,

N. 8. SO Dis tasiratenee sc ates a ticsgannicene coe 120
Armsworth v. South Eastern Rail.

Co., 11 Jur. 758.. 828

Ashby v.White, 1 Sm. L. C. ‘Oth ed.

231. wee BAT
Ashcroft ». “Morrin, IM & G6. 450. 16
Ashendon v. London, Brighton and

South Coast Rail. Co., 5 Ex. D.

190; 42 L. T., N.S. 586 . .. 264
Ashworth . Heyworth, Ti, Be. “4

Q. B. 316 ; 38 L. J., M. C. 91; "20

L. T., N. 8. 439. : 50
Atterbury 2. Fairmanner, 8 “Moore,

32. ..71, 182
Attorney- General v. “Hollingworth,

27 L. J., Ex. 102 dopas 448

Attwood 2. Emery, 26 L. a C. P, 73-28
v. Small, 6 C. uF. 232......
Austin v. Manchester, Sheffield and
Lincolnshire Rail. Co., 21 L. J.,
C. P.179; 10 C. B. 454 ...246, 254, 255
Avards v. Dance, 26 J. P. 437 442

 

B
Bach v. Owen, 5 T. R. 409 ...13, 167, 169,
184

Baglehole v. Walters,3 Camp. 156... 151
x1v
PAGE
Bagueley v. Hawley, L. R., 2 C. P.
625; 86 L. J., C. P. 3828 oi. 104
Bailey v. Forrest, 2 C. & K. 181...... 99

 

v. Merrell, 3 Bulst. 95...128, 144, 147
— vt. Sweeting, 9 C.B., N.S. 843;

30 L. J., C. P. 150; 9 W. R. 273... 17
Baird v. Graham, 14 Ct. of Sess. 615 81,

 

 

119
Baker v. Berkley, 3 C. & P. 32 ...... 343
v. Dening, 8 A.& E. 94 ...... 20
v oe 28 L. J., Ex.
130. 175
Baldey ¥. "Parker, "OB. & C. “44;
D. & R. 220 ..... 7
ee ». Bates, 1 Times L. R.

BOS: jsegerares 125
ee ‘Ouster, “] Ventr. 71... 210
Baldwin v. Casella, L.R., 7 Ex. 325;

41 L. J., Ex. 167; 26'L, T., N.S.
707 ; 21 'W.R.16° .... ceseneee 833
Balfe ¢. West, 22 L. J., CP. ‘175.. 118,
389

Bannerman v. White, 10 C. B., N.S.

844 . 140
Barclay 0. Pearson, [1893] 2Ch. ‘154;

62 L. J., Ch. 636 ; 68 L. T., N.S.

TU9 ; 42 W. R. Thee cassverasd BB, 436, 437
Bardell v. Spinks, 2 C. & K. 646... 148
Barker v. Furlong, [1892] 2 Ch.

172 ; 60 L. J., Ch. 368;
64 L.T., N. 8. 411; 39

 

We Bi O21). ciiccnssaveoesier 36

— v. Pott,4H. & N. 759.00... 170
v. Windle, 6 El. & B. 675... 139
Barley v. Walford, 9 Q. B. 197 ...145, 172
Barnard v. How, 1 C. & P. 366 221, 222

Barnes v. Ward, 9 C. B. 392 ......... 294
Barnet v. Ravenshaw, 21 L.T.63... 448

Barrett v. Burden, 63 L. J., M. C.
33.. vincatietes: “ABD

Barrington ’. “Turner, "3 Lev. 28... 343

Barrow v. Armand, $ Q. B. 609...... 192

Barry v. Croskey, 25. H.21 .. 144, 401
Bartholomew v. Freeman, 3 C. P. D.
316; 88L.T.,N.8.

814; 26 W. R. 743 166
— ». Markwick, 33 L. J.,
C. P. 145.........169, 176
Barwick v. English Joint ‘Stock
Bank, L. R., 2 Ex. 259.. aa, LEO
Bassett ». Collis, 2 Camp. "523 5
El, Bate. snimmesarmnccmennenniseens 91

Batchelor v. ee 11 Q. B. D.
474—C. A.. ov 296

Bather v. Day, ‘2H & C., ‘ld; 39

L. J., Ex. 171; 8 L. T., N. 8. 205
205, 207

Batson v. Newman, 1 C. P. D. 573 ;
25 WLR. 85—C. A. wee 373, 378, 404

 

TABLE OF CASES.

PAGE

re Marriott, 5 C. B. 818; 17
L. J., C. P. 215...373, 376, 377, “378, 404,
498, 446
Baxendale v. Great Eastern Rail Co.,
L. R., ees 38 L. J., Q. B.

137 . weeee 258
Baylis ¢. -. Lawrence, UW “Ad. ‘& Ez. 926 66
Bayntine v. Sharp, ‘L Lutw. 90.1... 887

Beach v. Parmeter, 23 Penn. St. 196 308

Beal v. White, 12 A.& E.670 wee 175
—— v. South Devon Rail. Co., 5 H.

& N.875. 246, 263
Beamon v. Ellice, ‘4 C. ‘~ P. ‘586. 322, 325
Beaumont v. Brengeri,5C. B. 301.. 9
Beck v. Dyson, 4 as 198 ; 16

R. RB. 774.0... ..332, 333
Beeston v. Beeston, ‘| Ex, ih, ‘13; 45

L. J., Ex, 230 ; S91, T. ,N.S. 700;

DWE Wy G8. passeeghaiecnciionne 416
Behn v. Burness, 3 B. & 8. 751 ; 32

Ti, J +5 Qh Be 204 cscceeccsvcnteaenes 110, 139
Benbow v. Jones, 14 M. & W. 193 ;

LA DiS, BE 207 srisevvsicsaves davis 387

Benham v. United Guarantee Co., 7
Ex. 753 ....... 134
Benjamin v. Storr, Ts BR. ‘90. P. 400;
43 L. J., C. P. 162; 30 L. T., N.S.
362 ; 22 W. RB. GBL veeceeeceees 294, 295
Bennett v. Brumfit, L. R., 3 C. P. 28:
37 L. J., OC. P. 35; 17
L. T., N. 8. 213
v. Henderson, 2 Stark. 550... 176,

 

 

178
v. Mellor, 5 T. R. 273; 2

R. RB. 593... seecsesees 204
Bentinck vr. Connop, 5 O, BL 693... 374
Bernasconi v. Anderson, M. & M.

TS3: ccastessaianioeminiesnnsanasnany sce 176
Bernina, The, 12 P. D. 58 . 300
Besozzi v. Harris, 1E&F. 92. 329, 338
Best v. Hayes, 32 L. J., Ex. 129 ... 37

v, Osborne, 2 C.& P. 74; RB&

 

M. 296 ....... 2,62, 86, 111, 126
Bevan v. Waters, 3 c ‘KP. 520...218, "219,
227

Bew v. Harton, 3 Q. B. D. 454; 47

L. J., M.C. 121; 39 L. T., N.S.

2333 26 W.. Bi 915) csceccssenee 441
Bexwell v. Christie, Cowp. 396 ...... 44
Beyer v. Adams, 26 L. J., Ch. 841... 417
Bianchi v. Nash, 1] M. & W. 545...... 169
Biddle v. Bond, 6 B. & 8. 225; ‘34

L. J., Q. B. 137. dimen, OE

Bidmead ». Gale, 4 Burr. 2432 iaveess
Bigg v. Whisking, 14 C. B. 195 ......
Bill v. Bament, 9 M. & W. 36.........
Binns v. Pigot, 9 C. & P. 208.........
Bird v. Boulter, 4 B. & Ad. 443 ......
—— v. Sharp, N. P. 1853..........00.

363

 

 
TABLE OF CASES. xV

PAGE
Birnie v. Marshall, 35 L. T., N.S.
373. 346
Bissil v. “New York ‘Central Railroad
Co., 25 New York, 442............008 250
Bize ». Dickason, 1 T. RB, 285 ......... 170
Black v. Baxendale, 1 Hix. 410 ...... 277

Blackman v. Simmons, 8 C.& P.138 338
Blackmore v. Bristol & Exeter Rail.

Co., 27 L. J.,Q. Bo 167 Qh
Blades v. Higgs, 9 Jur. N. 1040 ;
10 C. B., N.S. 718 ; 3015.0. P

347 ; ii HL, 6. 6913 34L. Je,
C. P. DEG” coadsaverancns "348, 347
Blake v. Beech, 1 Bx. D. 320 : 45

L. a M.C.111; 34 L, De,
N. 8. 764.. «cee d69

—— v. Beech, 9 Ex. ‘D. "B35 ; 36
L. T, N. 8. 723—C. A. 470

v Midland Rail. Co., 21 L. a
Q. B. 233.. saseavs
—— »v. Thirst, 2 H. &O. 2

 

 

Blakemore v. Lancashire and York-
shire Rail Co.,1 F. & F. 76......... 276
Blaxton v. Pye, 1 Wils. 309
Blenkinsop v. ee 7 Taunt. 597;

10 R. R. 602 .

Bliss v. Snow, N. P, "1853.

Blower v. Great Western Rail. Co.,

L. R., 7 C. P. 655; 41 L.J., C. Py
268; 27 L. T., N.8. 883 .........0 250
Bloxam v. Sanders, 4 B. & C. 941 ...25, 26

Bloxsome v. Williams, 1 Taunt. 135;
3B. & CU. 232. iesies OL
Blyth v. Bampton, 3 Bing. ATO cones 24

v. Birmingham Waterworks
Co., 2 Jur, N.8. 333 oo... eee. 279
Bolden v. Brogden, 2 M.& R. 113...64, 65,
74,75

Bond v. Evans, 21 Q. B. D. 249 ; 57

L. J., M. C. 105 ; 59 L. T.,
N.S. 411; 36 W. R. 767 442

—— v. Plumb, [1894] 1 Q. B. 169 ;

10 R. 44; 70 L. T., N. 8. 405 ; 42

 

 

 

W. RB. 222; 583 J.P. 168 451
Bone v. Ekless, 5 H. & N. 925 ...379, 380
Boorman v. Brown, 3 Q. B. 11 ....... 172

v. Nash, 9 B. & C. 145 175,
187, 192
Booth v. Mistor, 7.C. & P. 66......... 316
Bordenave v. Gregory, 5 East, 111... 167,
168, 316

Boseley v. Davies, 1 Q. B. D. 84; 45

L.J.,M. C. 27; 33 L. T., N.S.

528; 24 W. B.140 Le 442
Boss v. Litton, 5 C. & P. 407.00... 309
Bostock v. North Staffordshire Rail.

Co., 4 H. & B. 798.. weve £25

Boulton». Coghlan, 1 Bing. N. ‘C. 640 447

 

PAGE

Bowdell v. Parsons, 10 Hast, 359 ... 169
Bower v. Peat, 1 Q. B. D. 321; 45

L.J.,Q. B. 446; 35 L.T.,N.8. 321 297
Bowes v. Fenwick, L. R., 9 C. P. 339 ;
43 L.J.,M.C.107; 30L. T.,

 

 

N.S, 524; 22 W. BR. 804... 455,
459, 460
—— v. Shand, 2 App. Cas. 455;

46L.J., Q. B. 561; 36 L. T., N.S.

857 5 25 W. RB. 730 oes 105
Bowyer v. Cook, 4 0. B. 236 ......... 341
Boydell v. Drummond, 11 Hast, 142

10 BR. R. 450 . seg 1D
Bradley v, Bardsley, lt M. & W. 873 184

v, Lea, 14 Allen, 20 ......... 199

Brady v. Giles, 1 M. & R. 496......... 248
v. Oastler, 3H. & C, 112; "33

L. J., Ex. 300.. < 192

— ». Todd, 9 ©. B., NS. "592;

30 L. De C. P. 223 ; 41. T.,
N.8. 212 ; 9 W. BR. 483 122, 126
Bray v. Tove 1 Gow, 1 ; 21 RR,

786 sees 234, 247
Brickhead . “Archbishop ‘of York,

Hob, 198, 233.. 174
Briddon v. Great Northern ‘Rail. “Co., is

28 L. J., Ex. 51.. 275
Bridge v. Grand J unction Rail, ‘Co.,

3M. & W. 244...289, 292, 300, 310
v. Parsons, 32 L. J., M. 0.95 | 437
Bridger v. Savage, 15 Q. B. D. 363 ;

54. J, Q. B. 464 ; 53 L. TN. 8.

129 ; 33 W. B. 891—C. A, .
Briggs ¢. Baker, N. P. 1845 ..
Bringloe v. Morice, 1 Mod. 210; Hg

Salk. 271.0... 247
Bristol een of) v. ‘Wilmore, 1BL&

C. 521. veee 154, 155
Bristow v. "Halford, N. 'P. 1853 dese 14
British Empire Shipping Co. wv.

Somes, 28 L. J., Q. B. 220 — Ex,

Ch.; 30 L. J., Q. B. 229—H. L...210, 217
Broadwater v. Blot, Holt’s Rep. 547 224
Broadwood v. Granara, 10 Ex. 417 202,

 

 

207
Brock v. eee 1 Esp. 203; 5B.
R. 730... 338
Broennenburgh | v. “Haycock, ‘Holt’s
Rep. 630; 17 R. R. 682 . 76
Brogden v. "Marriott, 3 Bing. N. °C.
88... seve £02, 404
Brooks ¥. "Hassall, ‘49 L. L,, »N.S.569 123

Broomfield v. Smith, 1M. ‘& W. 542) 184
Brotherton v. Wood, 6 Moore, 34 .... 172
Brown v. Arundell, 10 C. B. 54; 16

L. T. 126.. - 388
e Elkington, 3 M. ‘& W. ‘132 78,

88, 98
— v. Giles,1 CO. & P. 118 336, 348
xvi

PAGE

Brown v. Overbury, 25 L. J., Ex.169 375,
376, 384

v. Turner, 13 C. B.,N. 8.485 347
Browne v. Frye, cited 2 Camp. 407 180

 

Browning v. Morris, 2 Cowp. 790... 437
Brownlow v. Metropolitan Board of
Works, 2 F. & F. 604 . 290

Brunsden v. Humphrey, 14 Q. ‘B.D.

141; 53L. J.,Q. B. 476; 51 L. T.,

N. 8. 529 ; 32 W. R. 9440. A... 326
Bryant v. Wardell, 2 Ex. 482......... 248
Bubb v. Yelverton, L. R. 9 Eq. 471 ;

39 L. J., Ch. 428 ; 22 L. T., N.S.

258; 18 W. RB, 612 oe 414
Buchanan v. Parnshaw, 2 T.R.746 40
Buckingham v. Reeve, N. P. 1857... 117,

182, 183
Budd v, Fairmanner, 5 C. & P. 78;
1M. & Se. 74.. get LOM
Buddle vr. Green, 7 he ts Ex. Fe 24
Burgess v. Clements, 4M. & 8. 306 ;

16 RB. BR. 473 . gives. DOT
Burkim v. Bilezikdgi, 53 od P. 760... 285
Burnett v, Allen, 4 Jur.,N. S. 488... 423
Burns v. Poulson, L. R., 8 C. P.563 :

ADs, Jes Co P82” srsicnsagsspasrercen 19
Burrough v. Skinner, 5 Burr. 2639 375

Busbell v, Wheeler, 15 Q,. B, 442... 8, 12
Butler v, Hunter, 7H. & N. 826 ... 294,
297, 298

Butterfield v. Burroughs, 1 Salk. 211 128
v saan: 11 East, 60 ;

10 BR. R. 433 . stisruician'vis 289, 293
Buttermere v. Hayes, 5 M. ‘&W. 456 183,
184

Buxton v. North Eastern Rail. Co.,

L. R., 3 Q. B. 549 ; 37 L.

J., Q. B. 258; 18 L. T.,
N.S.795; 16 W. R.1194 348

—— v. Rust, L. R., 7 Ex. 1; 41

L. J., Ex. 1; 25 L. T., N. 8. 502,

affirmed L. R., 7 Ex.279—Ex. Ch. 17,
19, 21

Byers v Beattie, 2 Ir. R., C. L. 220;
16 W. R. 279.. wee 409

Byrne v. Boadle, 33 Ti vals “Ex. 13... 306
Bywater v. Richardson, lTA&E
508; 3N. & M. 748... 40, 85, 86, 111

Cc.

Caddick v. Skidmore, 27L.J.,Ch.153 = 15
Calder v. Dobell, L. B., 6 C. P. 486 ;

40 L. J., C. P. 224-Ex. Ch. ...... 120
Calye’s case, 8 Coke, 32 b. 200, 204, 205
Caminada v. Hulton, 60 L. J., M. C.

116; 64L. T., N. 8. 572; 29 W.

R. 540 ; 55 J. P. 27° 433, ‘434, 463, 469

 

TABLE OF CASES.

PAGE

Camoys (Lord) v. Scurr, 9 C. & P. 386 246
Campbell v. Fleming, 1 A. & E. 40 153
Canham v, Barry, 24 L. J., C. P, 100 aa
Cannan v. Bryce, 3 B. & Ald. 179;

22 BR. R, 342 .

Card v. Case, 5 C. B. “627. “330, 331, 337
Carew’s Trusts, In re, 26 Beav. 187 45
Carlill v. Carbolic Smoke Ball Co.,

[1892] 2 Q. B. 484; [1893] 1 Q.

B, 256 ; 62 L. J., Q. B. 257; 67

L. T., N. 8. 837; 4) W. B. 210—

Ci Ay sexs ..400, 403, 413
Carr v. Jackson, 7 Ex. 382. wieme el
v. Lancashire and Yorkshire

Rail. Co., 7 Ex. 707 ; 21
L.J., Ex. 26) 251, 254, 255
v, Martinson, 1 E.& B. 456 ;
28 L. J., Q. B. 126; 7 W. R. 293 391
Carter v. Toussaint, 5 B. & Ald. 855;
1D.&R8.515 . ste Ak
v. Wallace, 35 Hun., "189. 112
Cashill v. Wright, 2 Jur., N.S. 1072 203,
206
Castle v. Playford, L. R.,7 Ex. 98... 25
v. Sworder, 30L. J., Ex. 310 8
Caswell v. Coare, 1 Taunt. 566; 10

Bi Re 606) snipensscaecnvoveics 164, 165, 193
Cave v. Coleman, 3M. & R. 2...24, 108, 135
Chadwick v. Burnley, 12W.R.1077 +19
Challand v. Bray, 1 Dowl.,N. 8.783 365
Chalmers, ae pone L. R., 8 Ch. App:

 

 

 

 

 

  

27
— «. Hoaine: 17 L. E, N.S
STL . ane, 135
Chamberlain, ‘Ex ‘parte, g ‘E, 'k B.
644 . 480
Champion v “Plummer, a. ‘'B. ‘& P.,
N. BR. 252; 8 BR. R. 795... lit 21
Chandelor v. Lopus, Cro. Jac. ‘4;
Rol. Abr. 101.. 134, 142

Chandler v. Broughton, 1 On & M.
229 . -.240, 243, 316
Chanter v. Hopkins, 4 M. &W. 399 106,
115, 116, 164, 170, 183

Chaplin v. Hawes, 3 C. '&P. 554... 308
v. poeene, 1 East, 192; 6

R. R. 249... sxe | 1D,
Chapman v, Allen, “Cro. Car. O71 xc
% Gwyther, L. R.,1Q.B

463; 35 LJ. Q. B. 142;
14.1. T. aN 8. BUT scons 11]

—— v.Withers, 20 Q. B. D. 824;

67 L. J., Q. B. 457; 37 W. R. 29 112
Charlewood's case, 1 Leach, 212 .., 936
Charlton v. Hill, 5 C. & P.147 ....., 376
Charman ». South Eastern Rail. Co.,

21 Q. B.D. 524; 67 L. J., Oy B.

597 ; 837 W. R. 8—C. A. . 844

 
TABLE OF CASES,

PAGE
Chase v. Westmore, '5 M. & 8. 189;

17 B. B. 301.. vas vsDBy 217
Cheeseman v. Hart, NP. 1847... 392,
425
Chesterman v, Lamb, 2 A. & E.129 164,
183, 194, 195
Chew v. Jones, 10 L. T. 231 ...... 231, 233,
234

Child v, Hearn, L. B., 9 Ex. 176 ; 43
L. J., Ex. 100; 22 W. R. 864...... 348

Chinery v. Viall, 29 L. J., Ex. 180 189
Chippendale v. Lancashire and
Yorkshire Rail. Co, 21 L. J.,

Q. B. 22 .
Christie v. rises, 2 Camp. 79; ; ‘1
Be R006: siccinusasienicnsnds avons
Clare v. Maynard, 6 A. & B. 523...

  

197, 198
Claridge wv. South Staffordshire
Tramway Co., [1892] 1 Q. B. 422;
61 L. J., Q. B58 DOS sc cestsnageennecsnee
Clark v, Chambers, 3 Q. B. D. 327;
47 L. J., Q. B. 427; 38
L. T., N.S. 454...290, 291, 295,
296

—— v. Glasgow Assurance Co., 1
Macq. H. of L. Cas. 668 191

v. Rochester and Syracuse

 

Canal Co., 14 New York, 570...... 250
Clarke v. Dickson, 27 L. ee _ B.

5 a . 153

%. Ges 6 East, BE. scans 172, 173

v. Hague, 29 Le J.,M.C.105 438

ATT

 

v. Roe, 4 Ir. C. L. R. te aisitais 224
v. Smythies, 2 F.& F. 83... 48

Clay v. Wood, 5 me 42; 8 RK. R.
827. wee 307
Clayards v. ‘Dethick, ‘12 0. 3. 439. . 292,
293

Clayton v. Jennings, 2 W. Bla. 706 361
Cleveland 2. Resets 16 C. BN. S.

399. . 297
Cleverton, : v. . Ufernel, 3 Times L. ‘R.

509 . 333
Clothier | v. “Webster, 31 ‘L. aT “o. ’P.

316. 298
Clough ° ». London and North West-

ern Rail. Co., L. R. 7 Ex. 26; 41

L. J. Ex. 17; 25 L. T, N.S.

708 . , w. 153
Coates 9. ‘Hatton, 3 ‘Stark. ‘61, 425

 

— Stephens, 2M. & Rob. 157 62,
63, 64, 65, 74, 75, 83, 187
Cochrane v. Moore, 25 Q. B. D. 57 ;

59 L. J., Q. B. 377;

63 L. T., N. 8.153;

38 WLR. 588 ices Sa 105
— vRymill, 40 L. T.,N.
7445.27 WOR TIO vccccscssreceee 85

oO.

 

XVll
FAGE

Coggs v. Bernard, Lord Raym. 915;
1Sm, L. C., 9th ed. 201...246, 247, 249,

 

254
Cohen ». Kittell, 22 Q. B. D. 680;
58 L. J., Q. B. 241; 60 L.T., N.S,
932 ; 37 W. R. 400° wasciiodesed 418
Colchester, Mayor of, wv. Brooke, 7
Q. B. 339.. -.291, 310
Coleman v. Riches, 160. B. 104...... 119
Coles v. Trecothick, 9 Vesey, 249 a;
7 BR. R. 167.. 22
Colget v. Norris, 2 Times L. ‘RB. 471
Ce As suseinae . 333
Collen v, Gardner, 21 Beav. 543... 123
Collier v. Chaplin, N. P.1865 ...... 283
Collins’ case, Godb. 346 ......ce0.. 201
v. Rodway, N. P. 1845 ...... 214

Colquitt v. Kirkman, 47 Ga. 555
(1873) .. 221

Coltherd ». ‘Puncheon, 9 ‘D. '& 'R. ‘10 116

Combe v. London & South Western
Rail. Co., 31 L. T., N. 8. 613 10... 254,

272

Commerce, The, 8 Rob, Adm. Cas.
287 .

Connor ». ‘Quick, “cited ‘OW. Bla. 708

307
399,
425
Consolidated Co. v. Curtis, [1892] 1

 

Q. B. 495; 61 L. J., Q. B. 3255 40
W.R. 426 Ledoandoet shes 736
Cook v. Field, 15 Q. Be 475. 414

Coombs v. Bristol and Exeter Rail.

Co., 27 L. J., Ex. 269,
401. 269

vw Dibble, Ls ‘RB, a ‘Ex. 248 ;

35 L. J., Ex. 167; 14 LL. T.,N.S

415. saiagoag AOL
Cooper v. ‘Andrews, HOD. 4. sijevnes 4

—— v. Barton, 3 Camp. 5, u.; 18
RR. 736, De sesesesieevee 200, 24

. Hood, 28 L. J., Ch. 212... | 17
—— ». Neil, 27 W. B. 159 ...407, 409,
411

i

v. yeas 35 L. T., N. 8.
347.. 441
v, Smith, ‘1B ‘East, “103 ; 13
R. B. 397. 21
v. Willomatt, 1 6. 3B. 672. 235
Coppin v. Craig, 7 Taunt. 243 ; 17

 

RB. RB. 508 ....... 47
Corbett v. Packington, 6B. & C.
258 . 224
Cormack v. "Gillis, “cited T ‘East,
480 . 160
Cornfoot. * "Fowke, 6 M. & W. 358 119,
126

Cornman v, East. Counties Rail. Co.,
4H.&N.781 1.0... 304
Cornwell v, Sandars, 3 B. & 8.206 346

b
XV1il

PAGE

Cort v. Ambergate Rail. Co., 20 L. J.,
Q. B. 465 00... eeanedice UD
Cotteril vr. Turley, 8 0. & P.693 ... 289,
310
Cotton v, Thurland, 5 T. R. 408...... 424

 

v. Wocd, 8 C. B., N.S, 568 303,
304, 310
Coupé Co. v. Maddick, [1891] 2 Q. B.

413; 60 L.J., Q. B. 676 oe 233
Couston v. a, L.R.,2 H. L.

(Sc. C.) 250 0... 157
Coventry (Earl of) v. Wiles, 9 L. T,

N. 5. 384.. Bees 37], 372
Cowper vt. Andrews, Hel 40am 28
Cox v. Andrews, 12 Q. B. Dz ‘126

53L. J., M. C. 34; 32 W.
R, 289.. 469
— Burbidge, 13 ©. ‘3. IN. 8. 230;
32L. J., C. P. 89; 11 W. R
435 . seus. 305, 331, 335
U. Walker, cited 6 A. & E. 523 194,
196, 197
Coxon v. Great Western Rail. Co.,

29 L. J., Ex. 165; 5 H. & N.

274. aiey vege) WO,
Coyne v. “Brady, ot. T., N.S8.30... 438
Crabtree xr. Hole, 43 J. P.799 a. 442
Crane v. London Dock Co., 38 L. J.,

Q. B. 224; 10 L. T., N. 8. 372; 12

W.R. 745... sua 49
Croft vy, Allison, 5 B. ‘& Ald. 590 ... 317
Crofton v. Colgan, 10 Ir. CL. R.

133 . seve. 403, 405
Croker v. Walsh, ‘4 Ir. Jur. D298 secs 444
Crosier Tomkingon, 2 Ld. Ken.

439 0... siemuimine, LOT
Cross t. ‘Andrews, “Cro. Eliz. 622 ... 208
—— v. Bartlett, 3 M. & P. 542...... 164
Crouch v. Great Western Rail. Co.,

11 Ex. 742; 26 L. J.,
Ex. 418 .............. 250, 269
v. London & North Western

Rail. Co., 23 L. J., C. P. 73......... 249
Crowder v, Austin, 3 Bing. 368; 11

Moore, 288; 20. & P. 208 ......... 44
Cundy v. Lindsay, 3 App. Cas. 459 ;

47 L. J., Q.B.481; 38 L. T., N.S.

573 . weuddess «249

 

 

Curtis v. Hannay, ‘5. Esp. "33 ; 158
—— vr. Mills, 5 C. & P. 489......... 339
— uv Rickards, 1 M. & Gr. 47... 16,

193

—— v, Thomas, 33 L. T.,N. 8. 664
—V.C, H.. 42

— vw Williamson, L. RB. “10 Q. ‘B.

57; 44 L. J., Q. B. 27; 31 LT,

N. 5. 678.. 121
Cusack v. Robinson, 30 Th, ‘I, 3 0.) 'B.
261 . tay 71

 

TABLE OF CASES.

D,

Da Costa v. Jones, Cowp. 729

Daintree +. Hutchinson, 10 M. & W.
85... wee 395, 396, 425

Dale v. “Humfrey, EL. “BL & El. 1004 Ne)

Dallman v. King, 5 Scott, 382 ...... 164
Dalton v. South Eastern Rail. Co.,
27 L. J, OC. P. 227 2... 325, 328

Danford t. Taylor, 20 L. T., N. 8.
483. 440
Danube and ‘Black ‘Sea “Rail. Co. v
Xenos, 31L.J.,0. P. 284—Ex.Ch. 28
D'Arc v. London & North Western
Rail. Co. L. R., 9 C. P. 325; 30
L. T., N. "s. 763. weaee 261
Davies v. Mann, 10M. ‘kW. 546 292, 310
Davis v. Artingstall, 49 L. J., Ch.
609; 42 L. T., N.S. 507 ;

29 Wie Ri AST sisezcrssneoawas 35
—— v. Garrett, 6 Bing. 716......... 234
— v. Jones, 25L.J3.,C.P. 91... 19
—— v. Oswell, 7 C. & P. 804 ...... 189

v. Stephenson, 24 Q. B. D.

529; 59 L. J., M. C. 73;

62 L. T., N. S. 436; 38

W. R. 429 ......... 448, 452, 463
Davy v. Chamberlayne, 4 Esp. 229 240
Dawes v. Harness, L. R., 10 C. P.

166; 44 L. J., C. P. 194 we. 153
Dawson v. Chamney, 5 Q. B. 165;
13 L. J., Q. B. 33; 7 Jur.

1037.. aivedniassas, 205, 206

—_—i% Collis, 10 C. B. 523 157, 160,

164, 183, 186

— %

. Midland Rail. Co., Ts. Ri;
8 Ex. 8; 42 L. J., Ex. 49; 21

 

W. R.56.. 348
Day v. Bather, 2 2H & C, “U4: "32 L.

J., Ex. 171. site wee 204
Dean », Branthwaite, 5 Esp. "35 238
—— v. Keate, 3 Camp. 4; 13 RR.

735 .. se wgiaan 23D
— Morey, 33 Towa. 120. ae
Deane v. Clayton, 7 Taunt. 489. . 338

De Mattos + Benjamin, 10 R. 108 :

63 L. J., Q. B. 248; 70 L. T., N.

8.5605 42 Wa Ry 284: ssccseceoescans 418
Derry v. Peek, 15 App. Cas. 1

58 L. J., Ch. 864; 61 L. T., N.S

265 ; 88 W. RB. 33 ie 146
De Schwanberg v, Buchanan, 5 C. &

P. 343. wéuixes 138)
Dicas v. Hides, ‘T Stark. 247.
Dickenson v. Follett, 1 M. & Rob.

299. 78, 88
v. Gapp, cited 1M. &

Scott, 78.. r 137
v. Naul, 4B. & Ad. 638 37
Dickson v. Zizinia, 10 C. B. 602...... 114

  

 
TABLE OF CASES.

PAGE
Dickson v, Great Northern Rail. Co.,
18 Q. B. D. 176; 56 L. J., Q. B.
111; 55L. T.,N. 8. 868—C. A. 258, 264
Diggle v, Higgs, 2 Ex. D. 422; 46
L, J., Ex. 721 ; 37 L. T. LN. 8.27;
25 W. R. 7170. A. 373, 377, 380,
382, “408, 414, 424, 425
Dimes v. Petley, 15 ee B. ‘276 ; 19

L. J., Q. B. 449... 310
Dines 2. Wolf, L. Ry ‘OPC. "280;

3 Moore, P. C.C., N.S. 382; 20

L. T., N.S. 251.. 375, 387, 393

Dingle v. Hare, 7 C. B., LN. 8.145 165, 198
Dixon v, Birch, L. R. 8 Ex. 135 ; 42
L. i Ex. 135 ; 28 L. T.,

 

N.S. 36. wae 202

». Yates, 5 B, & Ad. 313... 24
Dobell v. Stevens, 3 B. & C.625 ... 144
Dodwell v. Burford, 1 Mod. 24 ...... 284

Doggett v. Catterns, 19 C. B., N.S.
765 ; 34 L. J., C. P, 159 ; $0 Is: T.,
N.S. 355 ; 13 W. RB. 290—Ex, Ch. 452,
. 453, 454, 457, 468

Donatty v. Crowder, 11 Moore, 479. 222
Doolan v. Midland Rail. Co., 2 App.

Cas. 792; 34 L. T., N.S. OU cle 274
Dorrington’ v Edwards, 2 Rol. 188... 132
Downes v. Johnson, [1895] 2 Q. B.

208 ; 64 L. J., M. C. 238; 72 L.T.,

N.S. 728 ; 43 W. R. 556... soe 465

Drury v. De la casio, 3 B.&C.
232). sevadusecvenresy 30
Dublin, &c., Rail. Co. %. “Slattery, 3
App. Cas. 1155; 36 L. T.,N. 8.

 

365 . 289

Duckworth ». Johnson, 4H & N.
653 a. 328
Duncan ». ‘Cate, 2 M. & W. "O44. nehigee 47
v. Topham, 8 C. B. 225...... 28
Dunlop v. Grote, 2 C. & K. 153... 28

—— v. Higgins, 12 Jur. 295; 1
H. L. ©. 381.. ‘ 16

—— v. Waugh, Peake, N. "P, c.
167 . eves 137, 144

Durrell ». “Evans, 31 ‘L. J, Ex. 337. 14, 23
Dyer v. Cowley, i7 LL, J, Q. B. 360. 13,

 

14, 169

— v. Hargrave, 10 Ves. 507; 8
B. RB. 36 ee 128
v. Pearson, 3 B, & CG. 38. eeccchaceiians 49
Dykes v. Blake, 4 B. N. C. 463 ...... 42

Dyson v. Mason, 22 Q. B. D. 351;
58 L. J., M. C.'55; 60 L. T., N.S.

265 . kes 440
E.
Easton v. Pratchett, 1 C. M. & R.
798; 2C.M.&R. 542... 414

 

xix

PAGE
Eastwood », Bain, 28 L. J., Ex. 74... 177
» Miller, L. R., 9 Q. B.
440 ; 43 L. J.,M.C.139 ; 30 L. T.,

N. 8. 716 ; 23 W. R. 799 457, 458,
460

Eaves v. Dixon, 2 Taunt. 343...... 79, 81
Eden v, Blake, 13 M. & W. 614... 34, 39
—— v. Parkinson, Doug. 732 a...... 114

Edgebury v. Rosindale, 2 Lev. 94...
Edwards v. Brewer, 2 M. & W.375.. 27
v Hodding, 5 Taunt, 815;

15 R. R. 662 . . 46
», Pearson, 6 Times iy ‘RB.

 

Egerton v. Matthews, 6 East, 307; 8

R. RB. 489.. 21
Egleton v. Barclay, ‘11 Times “Tis Be

VIA: sewasievs 412
Eicholz v. Bannister, ‘17 ron Ee Ne 8.

708 ; 34 L. J., C. P. 105 ; 12'L. Th;

 

 

N. 8. 76 ; 13 W.R. acne 104, 105
Elliott v. Pybus, 10 Bing. 512 ....... 175
—— v. Thomas, 3 M. & W.170... 183,
184

». Von Glehn, 18 L, J. es B.

221 . wee 139
Ellis v. Chinnock, 7 C. ‘& P. ‘169 wee 196:
v. Hopper, 4 Jur., N. 8. 1025 ;

28 L. J., Hx. Te 385

—— v, Loftus Tron Co., L. ‘R, ‘10
Cc. P. 10; 44 L. J., C P.
24; 31 Le T., N.S. 483 3 23

 

Wie Ri 246. sc iccsssaswsnesisenas 336

—— v. Mortimer, 4 B. & P. 257 ... 3
v. Sheffield Gas Co., 23 L. J.,

Qs By Ae sccisvriuiassdasssrervingen 296, 297

Elmore v. Kingscote,5 B. & C.583. 16
—— v. Stone, 1 Taunt. 458; 10
Ri Rie 598 ssisacuistseczedsesaaees 9, 10, 11
Elphick v, Barnes, 5 C. P. D. 321;
49 L. J., C. P. 698; 29 W. R. 139;
ALT. B. GEM cevenveones waGoee . Bie LO
Elton v, Brogden, 4 Camp. 281. 65, 74, 84
—— v. Jordan, 1 Stark., N. P. C
127; 18 R. he Te ctcaanenses 65, 74, 84
Elvin v. Chapman, N, P. 1853 ...... 307
Emanuel v. Dane, 3 Camp. 299...... 159
Emerson v. Dickson, N. P.1853... 383, 425
Emery v. Richards, 14 M. & W.729 376
Emmerson v. Heelis, 2 Taunt. 48 ;
TLR, 5 20s ecepate wens ences 22, 34, 42
Eskridge v. Glover, 5 Stew. & Port.
(Amer. ) 264
Essex (Earl of) v. Capel, N. P. 1809 341,
342, 343
Evans v. Botteril, 33 L. J.,M.C.50 347
v. Pratt, 4 Scott, N. R. 378 ;
1D. P., C. N.S. 505 365, 390,
394, 425

 
XxX TABLK. OF CASES.

PAGE
Evans v. Sumner, 35 J. P. 761 ...... 394
Everard v. Hopkins, 2 Bulst. 332 ... 214
Everett v. ee 2 ee 515 ; 11

R. R. 785.. 29
F.

Fadenilke v. Holroyd, N. P. 1846... 445
Fairmaner v. Budd, 7 Bing. 576...... 180
Fairtlough v. Whitmore, [18965]

W.N, 52.. 426
Falmouth Glan] “of) 0. “Penrose, 6B.

& C. 387 169
Farebrother. ”. “Simmonds, 5 'B. ‘x

Ald. 333. . 22, 38
Faulks +, ‘Atkins, 10 Times L. R.

178. 419
Faweett 2 e, York and North. Midland
Railway Co., 16 Q. B. 610; 15
Jur. 173; 20 Ld, Q. B. 222 ...348, 349
Fearon v. Mitchell, L. R., 7 Q. B.
690; 41 L.J.,M. ©. 170: 27 L. T.,

 

N. 8.33. eitcass ’61, 52
Fell v. Knight, ‘8M. & W. 269 ...... 201
Felthouse v. Bindley, 31 L, J., C. P.

204 ...... se
Fenn v. Harrison, 37. R. 760... “126, 186
Fennell v. Ridler, 5 B. & C. 406.0043 30
Feret v. Hill, 23 Ths J.C, P.185 145, 147
Ferguson v. Carrington, 9 B, & C. 59 ;

30. & P. 457.. aie 154, 155

Ferrier +. Peacock, ‘OF. & F717... 148
Fesenmayer v. Adcock, 16 M. & W.

449 00... 444
Fielder v. ‘Starkie, 1 ‘EL ‘Bla. I7; "9

Ri Bs 100 ~sdcreoceenvess - LET, 157, 165
Filburn v. People’s Palace, &c., Co.,

25 Q. B.D. 258; 59 LL. J a B.

 

471; 38 W. BR. 706—C. A. 330
Finley v. Quirk, 9 Minn. 194... ion Se
Firebrass (Sir Bazill) v. Brett, 2

Vern. 70.. 422

Firebrasse (Sir Baril) ”. “Brett, I
Vern. 489 ........ 422
Firth v. Ackroyd, N. P. 1853 294
Fisher v. Bridges, 3 E. & B, 6425 ‘24
L. J.,Q. B, 165—Ex. Ch... 436
—— v. Ronalds, 22 L, J., C. P.62 448
Fitch v. Jones, 5 E. & B. 238; 24

L. J., Q. B. 293.. - 406, 407
Fitzmaurice v, Bayley, | 9 H, of Ls
Cas. 78.. stein RD

Fivaz v. Nicholls, 2. B. 501, “B13... 443
Fletcher v. Bowsher, 2 Stark. 561 ;
20 RB. 735 veven 144
— », Rylands, L. R., 1 Ex.
265; L. R., 3 H. L. 330; 7 LJ.
Ex. 161 ; 19 L. T., N. 8. 220 ...330, 331

 

PACE
Flureau v. Thornhill, 2 W. Bla. 1078 197
Foot v. Baker, 5 M. & G. 339...425, 443,

 

444

Foote v. Butler, 41 J. P. 792 . 462

Ford v, Sykes, N. P. 1853.. 105
Foreman v. Great Western Rail. “Co.,

38 L. T.,N.8. 851 ..... 259, 267
Forget v. Ostigny, [1895 | App. ce

318 411
Forth v. ‘Simpson, 13 ©. B. 680 ; “18

219

  

L, J., Q. B. 266.
Foster ¥. Smith, 18 C. ‘B “LiGiaaves 136, 140
v. Thackeray, 1 1T. B. 57,0, 413
Fowler v. Lock, L. B.,7 C. P. 272 :

41L.J., GP. 99; Yet 8 NB.

476 ; L. R., 9 G. BP; 751, u. ; 43

ans CO. bP. 294,n.; 30L.7., N. 8.

800 ; la Bg 10 C.P. 90; 31 L. T.,

 

N.S. 844 ; 93 W. RB. 416.. .. 323

Fowles v. Great Western Rail. ‘Co.,
22 L. J., Ex.76; 7 Exch. 699 ... 271

France v. Gaudet, L. B., 6 Q. B. 199;
40 Dd.5 Qs By V2 aces. shsceceoaiens aces 189
Francis v. Wyatt, 3 Burr. 1498 ...52, 217,
221, 222

Franklin v. Lamond, 4 ©. B. 637 ;
16 L, ae ©, P22 losses 44

— _ v. South Eastern Bail. Co.,
3H. & N.211.. viccoes 325

Frederick v. Lookup, 4 Burr. 2018... 361

Freeman v. Baker, 2 N. & M, 446.. : 134,
143

Freestone, Ex parte, 25 L. J., M. ©.

121. ssevee 439
French ». ‘Styring, 26 L. a “C. P.181 371
Frend v. Dennett, 27 L. is C.P.314 184
Fuller v. Abrahams, 3 B. & Bing.

116 148
v. Perryman, ‘li Times LR.
350—C. A.. 412, 413
Furley v. Bates, 33 L, a “Ex. 43... 25

 

G.

Gallagher v. Great Western Rail.
Co., Ir, B, 8 C.L.
326 . sereceee 266
v Humphrey, 6 Te T.,
N.5. 684; 10 W. RL 664 20.
Gallaway v. ’Marics, 8. B.D. 275;
51 L.J., M. C.53; 45 L.'T., N.S.
763; 30 W. R. 151 . 455, 460
Ganly v. Ledwidge, 10 Ir. a ‘G4,
33 (Q. B.) .. wee 49)

Gapp v. Giandonati, N N. P. 1857. 233
Gardiner v. Gray, 4 Camp. 145; ‘16

R, BR. 764 ..... on 182
Gardner v, Grace, LE & F. 359 | vex 291
TABLE OF CASES,

PAGE

Garment v. Barrs, 2 Esp. 673......... 84
Gatty v. Field, 9 Q. B. 431; 15 L. J.,

Q. B. 408 woe. ..368, 380, 431

Gaunt v, Smith, N. P. 1856 Saraawes sens 225

Geddes v. Pennington, 5 Dow, 164... 117,
118, 181, 182, 183, 187
Gedge v. Minue, 2 Bulst. 62 aduseeds Soa
Gee v. Lucas, 16 L. T., N. 8. 357... 136
Gelber v. Berkley, Skin, 648 ........ 210
Gelley v. Clerk, Cro. Jac. 188.. 203, 204, 221
George (The) and Richard, L. R.,, 3
‘Adm. 466; 24 L.T., N.S. 717. 824
Gething v. Morgan, Times, eee 3.

1857.. 332
Gibbon ». ‘Standon, 16 TL. T., TN
497. 324

Gibbons» v. ». Pipper, 1 Lord “Raym.
38 . 301

Giblin >. “MeMullen, hs a “2 PLC.
317. 246
Gibson *. Carruthers, & ML ‘&W.346 154
«. Holland, L. E,, 1 CyB. As
35 L. J., C. P2543 14

 

 

 

W.R. 86... 7
v. Pepper, 2 Salk. 687.0004 284
Gilbert 1. Sykes, 16 East, 150; ‘14

R. R. 327.. .. 898
Gilbert's case, 1 Mood. ro C 186. 54
Gilbertson v, Richardson, 5 C. B.

502. - enines caseaerueens, C2
Gill v. Manchester, “Ke. Rail. Co.,

L. B., 8 Q. B. 186 ; 42 L. J., Q. B.

89; 28 L. Teg Neb? | cesssosesess 271
Gilliat x. Gilliat, L. B., 9 ae 60 ;

39 L. J. Ch. 142 cc eee 44
Gilpin v. Clutterbuck, 13 L. T. les 447
Gimson vr. Woodfall, 3 C.& P41. 58
Gladman v. Johnson, 36 L. J., C. P.

153. es 3 sara 000
Godwin «. Francis, “hip R., 5 C. P.

295; 39 Lids C: Ps ees

N.S. 338... nae sists. BT
Goldsmith vr. “Martin, IM.&G.5. 381
Gompertz v. Bartlett, 2 22 L. J., Q. B.

99 . 170

—_ ie. Denton, ‘1 Cr eM. 307 161

Goodman v. Harvey. 4 A. & E. 870 415
v. Kennell, 3 C. & P.167 321
v. Taylor, 5 C. & P. 410... 301

Goodwin v. Cheveley,  H. & N. 631;
28 L. J., Ex. 298; 7 W. R. 681... 336

Goram rv. Sweeting, 2 Wms. Saund.
200. 134

Gordon ¢. Great Western “Rail. Co. 9

8 Q. B.D. 44; 51 L. J.,

Q. B. 58; 45 i T., N. s.
509; 30 W. R. 230...... 268

cv. Rolt, 4 Ex. 365; 18 L. J.,
BEX. 132) caivsiesssedeaitennsae “822

 

 

 

XX1
PAGE
Gordon ”. Silber, 25 Q. B. D. 491 5
59 L. J., Q. B. 507; 68 L. T., N.S
283 ; 39 W. R111 fiteny 2 nes 207
v. Strange, 1 Ex. 477. 29

 

 

Gore v. Gibson, 13 M, & W. 626... 156
Graham », Ewart, 26L. J., Ex. 97 344
vw Musson, 5 Bing. N. C.

603. 23
Grand Trunk Rail. Co. of ‘Canada. v.

Jennings, 13 App. Cas. 800; 58

L. J., P.O.1; 59 L. TN. 8. 679;

BT We TAO acetenspie savsenleatons 328
Granger v. Dacre, 12 M. & W. 431... 175
Grant, Ex parte, 13 Ch. D, 671...... 408
Gray v. Cox, 4 BL & C. 115.0... 115
v. Gutteridge, 3 C.& P. 40... 46
v. Pullen, 32 L. J., Q. B. 169 296,

298
Great Northern Rail. Co. v7. Swaf-

field, L. R., 9 Ex. 132; 48 L. J.,

Ex. 89; 30 L. T., N. 8, 562......... 269
Great Western Rail. Co. v. Glenister,

29 L. T.,

N.S. 422;

22 W. R.

Dosis 267
— v.MeC arthy,

12 App. Cas. 218; 56 L. J., P. C.

33; 56 L. T., N.S. 582; 35 WR.

ADO atte resicscsitsce vic sietiadcanttialese oasicaisatlg 267
Greathead v. Morley, 3 M. & G.139 344
Green v. Bartlett, 8 L. T., N.8.503 48

 

 

 

 

 

v. Baverstock, 14 C. B., N.S.

204; 32 L.J.,C. P.181.. 44

— Goddard, 2 Salk. 640.. . 347
oo Greenbank, 2 Marsh. 485 5

I7 BR. 629 . 7

Greenland x. Chaplin, £ 5 Exch. "343 290
Greenway v. Marshall, N. P. 1845.. 73
Gregory v. Piper, 9 B. & C. 591; 4
Mi NER BOO s csicdeeccamics 243
v. West Midland Rail. Co.,
33 Lady BS2 15D cccscucoe ses 259,265
Greville v. Chapman, 5 Q. B. 745... 394
Grier v. Sampson, 27 Penn. St. 183 308
Grieve v. Milton, N. P. 1850 ......... 293
Griffiths 7. Lee, 1 C. & P. 110......... 268
v, Perry, 28 L. J.,Q. B. 204 29,
193

Grill v. General Iron Serew Colliery

Cor, Li. Roy DCL P.O 12. sccciecaeeanzes 246

Grimerd v. Wiltshire, 10 Times L. R.
BUD a secas . 418
Grizewood ¢. ‘Blane, 116. B. ‘526 . 401,
408

Groucott v. Williams, 32 L. J., Q. B.
237 . 225
Gundry 2 v. . Feltham, 1 ‘TT. RB. 337; i
R. RB. 215.. a B41, 342
XXx1

PAGE
Gunnis v. Echart, 1 H. Bla. 289; 2
R. RB. 769.. we, 89)
Guthing v. Lynn, 2 B. & Ad, 232., ‘24, 173
Gutsole v. Mathers, 1 M. & W. 495 172
Gwilliam v, Twist, [1895] 2 Q. B.
84; 64 L.J., Q. B. 4743 72 L. T.,
N.8. 579; 48 W. RB. 566......... 316, 317

H.

Hadland v. Price, N. P. 1853 .........

Hadley v. Baxendale, 23 L, J., Ex.

179 . wang ..188, 189

—-_ v. Taylor, L. 'R, 1. P. 53 294

Haigh v. Royal Mail Steam Packet

Co., 52 L. J., Q. B. 640;

49 L. T., N. 8. 802; 48

J.P. 230—C. A... cee

— v. Sheffield, Town Council of,

L. B., 10 Q. B. 102; 44L. J., M. C.

17; 31 L. T., N.S. 536 ; 23° W.R.

B47 me ..457, 458, 460

Hale v. Rawson. a7 L, a “GC. P. 191 191
Hales v. London and North Western

324

Rail. Co., 32 L. J., Q. B. 292 ...... 276
Halestrap v. Gregory, [1895]1Q. B.

561; 64 L.J., Q. B.415 ; 72 L.T.,

N.S. 292; 43 W. RB. 507............ 225
Hall v. Condor, 2 C. B., N.S. 40 ... 104
—— v. Johnson, 13 W. R. 411 ...822, 323
— v. Knox, 33 L. J., M. G.1...... 347
—— v. Rogerson, N. P. 1847 ......... 85
Hamlin v. Great Northern Rail. Co.,

1H.&N. 410... 190

Hampden v. Walsh, 1 Q. ‘B.D. 189 ;

45 L. J., Q. B. 238; 33 L. T., N.S.

852 ; 25 W. RB. 607. ..378, 380, 404, 424
Hammack v. White, 11 ¢. B., N.S.

588 . es . 301, 302, 303, 306
Hammond 0. “Bussey, "20 Q. B. D. 79;

57 L. J., Q. B. 58... ..188, 189
Handayside v. Wilson, 30.& P. 630° 307
Handford v. Palmer, 2 B. & Bing.

359 . see 247
Handley ° . M Laine, 10 Bing. 488... 16

Hands v. Burton, 9 East, 349.. 178
Hanson v. Meyer, 6 East, 621; 8
Ri OR, 692) vccssssctscicnsiionn 26
—— v. Roberdeau, Peake, N.P.C.
D638 iveseaceacaotenss axcenesueatacicasziesaet 44, 46
Hanway v. Boultbee, 4 C. & P. 350;
1M. & Rob. 15. oe .. 340
Hardacre v. Stewart, 5 ‘Esp. 103i 35
Hardcastle v. Bielby, [1892] 1 Q. B.
709; 61 L.J., M.C.
101. 298
— vv, South Yorkshire ‘Rail.
Co,, 28 L. J., Ex. 139 . ..294, 295

 

TABLE OF CASES.

PAGE

Hardingham »v, Allen, 5 C. B. 793... 41,
47, 171, 178, 179

Hare v. Osborne, 34 L. T., N.S. 294 440,
Harington v. Hogart,1 B.& Ad.577 47
Harman v. Reeve, 25 L. J., C. P. 257 6
Harper v. Mareks, [ised] 2 Q. B. ia

319.

— Williams, ‘4 Oe B. 219, 232 7

Harris v. Midland Rail. Co., 25 W. R.
63.. 261, 266
—_ wu Mobbs,_ . Ex. 'D. 268 ; "39
L.T.,N. 8.164 ; 27 W.R.
154 .
— * Nickerson, ‘L. R., s Q. ‘B.
286 ; 42 L. J. Q. By 1715
28 L. T., N. ’g. 410 ; 21
We Re 63b: ceseauee: 43
Harrison v. London, Brighton and
South Coast Rail. Co.,
29 L. J., Q. B. 209;

286

31 L. J., Q. B. 113—
Ex. Ch. .........263, 264, 268
— wv. Luke, 14 M.& W. 139 169
Hart v. Baxendale, 16 L. T., N.S
390 . 277
Hartley v. Herriman, ‘TB.& A. 620 332
Harvey v. Archbold, 3 B. & C.626 176
—  ». Hart, [1894] W.N. 72... 417
— vw Young, Yelv. 20.. 147

Hastelow v. Jackson, 8 B. & C. ‘921;
2M. & R. 209 .........379, 380, 381, 424

Hawker v. Hallewell, '3 Sm. & Giff.
194 . wae 445
«. Wood, lw. R 316. “B94, 448
Hawkes v. Smith, Car. & M. 72...... 268
Hawkins v. Cooper, 8C.& P. 473... 299

v. Rutt, Peake, N. P. C.
248 . iseaecue, 2S;

 

Hawse 2. “Crow, "RL & M, 414 155
Hawthorn v. Hammond, 1C.&K.

407 . idea we. 201
Hay, Ex parte, 3 Times L. R. 24... 335
— +. Ayling, 20 L. J., Q. B. 171... 447
Haycraft v. Creasy, 2 East, 92; 6

BeBe 880 secscescece cavee 150
Head v. Diggon, 3 M&R 97... 42
— v. Tattersall, L. R., 7 Ex. 7;

4.1L. J., Ex. 4; 25 it, T., N. 8,

631. ..112, 163

Heffer v. “Martyn, 36 Ti: Je “Ch. 372 45
Hegan v. Highth Avenue Rail. Co.,

15 N. Y, 380. . 309
Heilbut v. Hickson, Te R. “7 C. "P,

438; 41 L.J., C. "p, 228 + 193
Heiman v Hardie, 12 Ct. of ‘Sess,

Cas., 4th ser. 409 . masecnncen S07
Helyer v. Hawke, 5 Esp. 2 seenas 1.135, 186
TABLE OF CASES,

PAGE
Hemming »v. Parry, 6 C. & P. 580... 113
Henretty v. Hart, 13 Ct. of Sess Cas,

4th ser. 9.. 459
Herbert ». Markwell, 46 Ly ‘T, N. 8.

649; 46 J. P. 358.. 4 203
Heugh v. London & North “Western

Rail. Co., L. R., 5 Ex.51; 39L.J.,

Ex. 48 ; 211. T, N.8.676 ...... 269
Hewitt v. Price, 4 M. & G, 355 0... 407

Hibblewhite «. eae. 5 M.& W.

462 . 25
Hickman v. “Haynes, Ts. R, 10 ©. 'P.

598; 44 L.J.,C. P. 358; 32L, T.,

N.S. 873 ; 23 W. R. 871. 19
Hicks ». Newport, &e., Rail. “Co. ‘4

B. & 8. 4038, n. ...... +» 328
Higgins v. Senior, 8M. & W. 845 . 118
Higginson v. Simpson, 2C. P. D. 76 ;

46 L. J.,C. P. 192; 36L. T,N.S.

17; 25 W. R. 303.. seeereones 404
Higgons v. Burton, 26 L, “ly Ex. 342 154
Higgs v. Thrale, N. P. 1850... 67, 113
Hill v. Balls, 2 H. & N. 299; 27

L. J., Ex. 45 . veeee 106, 199
— % Fox, 4H. &N. '359-—Ex. Ch. "402,
445

— »v. Gray, 1 Stark. N. P. C. 484 ;
18 Ru Ry 80 Qvaecweiaeraccases 44,149
— v.South Staffordshire Rail. Co.,

L. R., 18 Eq. 194; 43 L. J., Ch.

566 . rea en he
Hilliard v. ‘Orbell, 'N. 'p. ‘1834... wa 162
Hinchcliffe v. Barwick, 5Ex. D. ‘V7:

49 L. J., Ex. 495; 42 L. T. N.S.

492 . 111
Hinde v. ‘Whitehouse, 7 “East, 568;
8 R. R. 676. 15, 39

Hiort v. Bott, Th “R., “9 ‘Ex. 86; “43
L. J., Ex. 81; 30 L. T., N. 8.25;
22 W. R. 414. ais 35
Hirst v. Molesbury, Ti; R., 6 ‘Q. 'B.
130; 40 L. J.,M. C. 76; 23 L. T.,
N. 8. 55; 19 W. R. 246 ...... 439, 440
Hoare v. Great Western Rail. Co., 37
L, T.,N. 8.186; 25 W. R. 83 ... 267
Hobbs v. London & South Western
Rail. Co., L. R., 10 Q. B. 117; 44
L. J., Q. B. 52; 32 L. T., N.S.
352; 23 W.R. 520 oseieas 188
Hodgman v. O'Neil, 2 Times L. R.
169.. 407

——  v. West Midland Rail. Co., -
83 TiS, Qs Bu DQ83.ceecsscencsicssyceces
Hodson v. "Terrill, 10. & M. 797, 802

269
424,
425
Hoghton’s Henry) case, cited 5
B. & C. 556...
Hole v. fo Rail. ‘Co, 6 i.
& N. 488; 30 L. J., Ex. 81..

238
297

 

XXIli

PAGE

Holleran v. Bagnell, L. R., 4 Ir. 740
—C. P.D.. sles
Holmes ». Bagge, 7 Jur, 1095 ...... 425

 

 

v. Hoskins, 9 Ex. 753 ...... 6,8
v. Mather, L. R.,10 Ex. 261 ;

44 L, J, Ex. 176; 83 iL

T., N. 8. 361. 303

—  »v. Onion, 20. B..N. 8.790 237

—— v,Sixsmith, 7 Ex. 802 155, 382,
383, 425

Holyday v. Morgan, 28 L. J.,Q.B.9 63,
94, 129

Hooper v. Kenshole, 2 Q. B. D. 127;
46 L. J., M. C. 160 ; 36 L. T., N.

 

8.111. 50
Hopkins v. anqueray,, 28 i, ‘a °C.
P. 162 sictee 45, 135, 148
v. Ware, in. BR, 4 Ex, 268;
88 L. J., Ex. uae ee 29

Hore v. Milner, Peake, N. P.C.58,n. 167
Horne v. Midland Rail. Co., L. R.,

8 C. P.131; 42L.J.,C. P. 54 va 189
Hornsby v. Raggett, [1892] 1Q

20; 61L. J., M. ©. 24; low R

lll. seve 458, 462
Horsfall v. “Thomas, TH ee 90... 146
Hotson v. Brown, 9 C. B., N.S. 445 14
Houldsworth v, City of Glasgow

Bank, 5 App. Cas. 317.0... eee 162
Hounsell v. Smyth, 7 C.B., N. 8.731 294,
295

Howard v. Castle, 6 T. R. 634 ; 3 BR.

Ry 296 veecceeces 44
v. Sheward, L. R., "2.0. P.

148; 86 L. J.,C. P. 42 123, 124, 126
Howe v. Palmer, 3 B. & Ald. 324... 9, 10
—— v, Smith, 27 Ch. D. 89; 53

L. J., Ch. 1055; 50 L. T., N.S.

573; 32 W.R. 802 Unihigaiweee AB
Howlett v. Haswell, 4 Camp. ‘118... 171
Hudson v, Baxendale, 2H. &N. B75:

27 L. J., Ex. UB is cess 254, 269

—— ». Lombard, L.R.,1 H. L.
324 . uae 177
v Roberts, 6 Ex. ‘697. Faaneuen 337

 

Hughes v. Macfie, 33 L. J., Ex. 177 291
—_ vw. Quentin, 3 0. & P. 703 ..» 827

 

Humble v. Hunter, 12 Q. B. 310 ... 121
Hume »v, Oldacre, 1 Stark. N. P. C.

351s TB RR. 119 sosesiessvarscaves, “B48
Humphrey v. Dale, 27 L. J., oe B.

390 . soe LO
Hunt v. “Williams, 52 5. P. "821. ues 432
—— v, Wyman, 100 Mass. 198...... 112

Huntley, Marchioness of, v. Bedford
Hotel Co., 56 J. P. 53. even 203
Hurst v. Orbell, 8A, & E. ‘107
Hyams v. Webster, L. B., 2 Q. B.
364; L. B., 4 Q. B, 138—Ex. Ch. 296
Xxiv

PAGE
Hyde v. Davis, N. P. 1849 wc... 85
Hyman v. Nye, 6 Q. B. D. 685; 44
L. T.,N. 8.919; 55 J. P. 554... 231
L

Tllidge v. Goodwin, 5 C. & P. 190... 288
Inchbald v. Western Neilgherry

Coffee Co., 11 L. T., N. 8. 345...... VSL
Ireland v. Johnson, 1 Bing. N. C. 162 172
Irons v. aa 2B. & Ald. 551 ;

1B, BR. 395.. 2
Irvine v. Watson, 5 'Q. 'B. ‘D. ‘102;

49 L. J., QB. 239 ; 41 L.T., NS,

51; 5 Q. B. D. 414-0. A. 121
Irving v. Motley, 7 Bing. BB la ccsact 154
Irwin +. Osborne, 5 Ir. C. L. R. 404 405
Ismay v. Blake, 66 L. T., N.S. 530;

 

56 J.P. 486 wo. «05:
J.

Jackson v, Cummins, 5 M. & W. 350 218,

219, 227

— v.Smithson, 15 M.& W.563 338

Jacobs v. Latour, 2 M. & P. 205...... 218

James v. Morgan, 1 Lev. 111 .......... 191
Janson v. Brown, 1 Camp. 41; 10

RB. BR. 626.. 339

Jardine v. Stonefield ‘Laundry ‘Co,,
14 Rettie, 849 wu... 308, 310
Jeffery v. Pinas 1 Stark. N. PLC,

 

267 . aise 243
Jeffrey 7 v. “St. Pancras. ‘Vestry, 63

L. J., Q. B. 618 . aes 294.
Jeffreys ». Walter, ‘T Wils. 220 425
Jelly v. Clark, Cro. Jac. 189 . .. 208
ples e Slade, 2 Hep B72 25

R. R. 7 Sistas 136, 144

Jenks v. Fs 13 ‘a. "B.D. 505 ;
53 L. J..M.C. 161; 30L.T., NS
808... 429; 496, 458, 472, 474, 475, 478

Jennings v, Bundall, 8D. & B. 335 233

Jessop wv. ie aa 10 Ex. 614; 24

L. J., Ex. 65 . svoiwe LUT
Joel v. ‘Morrison, 6G. & P. 501... 319
Johnson 7. Dodgson, 2 2M. & W. 653 14,

20, 183, 184

— v. Hill, 3 Stark.N.P.C.172 209
—- v. Johnson, 3 B. & P. 162;

Lansley, 12 C.B. 468 .., 416
. Midland Rail. Co., 4 Ex.

BOM essai waciiyanee 264
—— v. Pye,l Sid. ESE shavvheswis 155

—_——

|

 

TABLE OF CASES.

PAGE
Johnson v. Stear, 33 L. J., C. P. 130 189
Joliff rv. Bendell, R. & M. 136.. 83

Jones v. Bright, 3 M. & Pp: 155s 5

Bing. 533...103, 107, 108, 115, 152
v. Carter, 15 L. J., Q. B. 064 381
, Cowley, 4 B. & C. 445 ; 6

D.. & Re 83) wesiaesise eeesens 112
—— v. Dowle, 9 M. & W. 19......--- 183
— wt. Gibbons, 22 L. J., Ex. 348 169
— v. Hart, 2 Salk. WHO gece: 20

—— v, Jackson, 29 L. T., N. 8. 399 203
— v, Just, L. R., oe B. 197; 37

L. J., Q. B ; 18 L. T.,

N.S. 208 ... ans, 132, 193, 194
‘, Corporation of Liverpool,

14Q. B. D. $90; 54 L.J.,

Q. B. 345 ; 33 Ww. R. 551... 238
*, Osborn, 2 Chit. 484 200
—— v. Owen, 24 L. T., N. 8. 587... 337
v. Page, IBL. Ts N. 8.619 231, 232
v. Pearle, 1 Stra. 0 Lanai 209, 210
c. Perry, 2 Esp. 482 . wee 332
v«. Powell, 5 B. & Cc. 650; 8
D.&R, AIG: aacieaanetacaticn 1228

 

 

-, Randall, Cowp. 39... 398
+. Thurloe, 8 Mod. 172... 209, 210
«, Tyler, 1 A. & E. B22 so veeesee 205

Victoria Graving Dock Co.,
2Q.B. D.314; 46 L. J.,
Q. B. 219; 32 Ty T., N. 8.
BAT. ode cnsamicnmie urdentatagnunine 21
Williams, 46 L.J., M. C.
270; 86 L. T.,N.8. 559; 25 W.

uw

—_— vu

R. BOL. we. B46
Jordan v. ‘Norton, of ML. &W. "158 8, 18,
127

Joseph v. Adkins, 2 Stark.N.P.C.76 57

  

Josling t. Irvine, 6H. & N. 512.. 192
Judge v. Cox, 1 Stark. 285 ; 18 B.

R. 769. . 832
Judson v. Etheridge, 1 “Cr, ‘& ™M. 743 227
Justice v. Gosling, 21 L. J., C0. P. 94 283

K
Kain v. Old, 2 B. & C. 627 ......... 2, 20
Kearley v. Thomson, 24 Q. B. D.742 437

Kearney v. London, Brighton and

South Coast Rail. Co., L. R., 5

Q. B. 411; L, Ry 6 QB. 7o—

Ex. Ch. .. 306
Keen v. Henry, [1894] i 0. ‘B. 292,

638 L. J., Q. B. 211; 69 L. T.,

8. 671; 42 W. RB. 214; 58 J. P

262—C. A.. sees B14
Kellett v. Stannard, ‘4h, Jur. ‘50. . 339
Kelner v. Baxter, L. R., 2 C. P. lid;

36 L. J., C. P. 94. 2s . 119
TABLE OF

PAGE
Kemp v. Falk, 7 App. Cas. 573 ...... 27
Kendall v. London & South Western
Rail. Co., L. R., 7 Ex. 373 ;
41L.J., Ex.184; 261. T.,
N. 8. 735 . deeledstesislonde DA,
— v. Marshall, IL ‘0. B D. go0 6-27
Kennedy v. Gad, 3 C.& P.376 382, 425
Kenner v. Hardy, 28 Amer. Rep. 615 133
Kent v. Midland Rail. aa L. B., 10
Q. B.1; 44 L.J., Q B. 18; 381
L. T., N. 8. 430.. 256
Kenworthy v. Scholfield, 2B, 1& 0.945 15,

Kenyon v. Hart, 13 W. R. 406
Keppel v. Albemarle, 1850..... ......
Kibble », pene) 38 L. T., N.S. 204
—C. A 9, 12
Kiddell » v, Burnard, 9M. & W. 670 "62,
63, 65, 74, 83, 92, 100, 186

Kilpin v. Ratley, [1892] d Q. B, 582 ;
66 L. T., N. 8. 797; 40 W. R. 479 2
King tv. Boston, cited 7 East, 481, n. 160,

 

185

v. London Improved Cab Co.,

23 Q. B. D, 281; 58 L.J.,

Q. B. 456; 61 L. T., N.S.

34; 37 W. R. 737; 53 J.P.
788—C. A.. sueiatedteine 314
—— ¥. Price, 2 Chit. ‘416 me 195

 

v. Sears,2 C.M. & R. 53. “172, 178
v. Spurr, 8 Q. B. D. 104......... 314
Kingsford v. Merry, 11 Ex. B77; 26
L. J., Ex. 83 154
Kington v. Kington, ‘11M. & W.233 28
Kirby v. Great Western Rail. Co., 18
L. T., N. 8. 658..
Knight's case, 1 Lewin’s C. ‘C. 168
Knight v. Cambers, 15 C. B. 562;
24L. J., GOTT sivaden: 411

 

 

258
279

— v, Fox, 5 Ex. 725 ............ 297

—— v. Lee, [1893] 1 Q. B. 41;

62 L. J.,Q. B. 28 ; 41 W. B.125... 418
Knox v. Whalley, 1 Esp. 159......... 184
Kornegay v. White, 10 Ala. 255...... 62
Kronheim v. Johnson, 7 Ch. D. 60;

47 L. J., Ch. 132; 37 L. T., N.S.

752 . 21

L.

Lacey v. Umbers,2 C.M.& R.116 392

Laing v. Hain, 2 8. M. & P. 395
(Court of Sess. Sco.) . sere 41, 46

Lake Shore Railroad Co. v. Perkins,
25 Mich. 329 . sacs 250

 

CASES. XXV
PAGE

Lamb v. Palk, 9 C. & P. 629 ........- 318
Lambert v. Harrison, N. P. 1853 ... 286

Lamond v. Davall, 9 Q. B. 1030; 16
L. J., Q. B. 136. ies 27
Lancashire v. Hunt, W “Times L. ‘R.

49—C. A.. taiise stead: “OND
Lane v. Cotton, “it Salk. ‘18. ace 212, 217
Langrish v. Archer, 10 Q. B. D. 44;

52L. J., M.C. 47; 47 L, T., N.S.

548 ; 31 W.R. 183... 439

Laugher v. Pointer, 5 B. & C. 647... . 238,

239
Lay v. Midland Rail. Co., 34 L. T.,
N. 8. 30 3 291
Laythoarp « U. . Bryant, 2 Bing. N.C.
735 wee 14,21
Layton « v Hurry, 8 Q. Bh, ‘811... 212
Leame v. Bray, 3 Hast, 593.. 307

 

Leather Cloth Co, v. Heironimus,

L. R10 Q. B. 140; 44 L. J.,

Q. B. b4 ; 82 L.T.,N. 8.307... 17
Leatt v. Vine, 30 L. J., M. C. 207... 346
Lee v. Bayes, 18 C. B. 599.........
— v, Gold, 44 J. P. 395 wa.
—— »v. Irwin, 4 Ir. Jur. 372 (Ex. Ir.) 219

 

v. Paterson, 8 Taunt. 540 ...... 192
—— v. Riley, 18 C. B., N. 8. 722;
34L. J., C. P. 212; 12 L. T.,N. 8,

388; 13 W.R. 751 ...... . 336

Leeser’s case, Cro. Jac. 497 422

 

Leeson v. Smith, 4 N. & M. 304...... 176

Legg v. Pardoe, 9 C. B., N. 8. 289... 346
Legge v. Tucker, 1 H. & N. 500...... 224
Leigh v. Shore, 1 B. & C. 94 ......... 176
Leroux ». Brown, 16 Jur. 1021 ...... 4

Levy v. Langridge, 4 M. & W. 337... 145
— v. Lord Herbert, 7 Taunt. 318 176
Lewis v. Great Western Rail. Co., 5
H 8 Ns 867 seecvens 261
—— v. Great Western Rail. Co., 3
Q. B. D. 195; 47 L. 3.,
Q. B. 131; 37 L. T., N. s.
744; 26 W. BR. 255—C. A... 258,
261, 266, 267, 268
v. Nicholson, 21 L. Ths Q. B,
316. a 19
% Peake, 7 ‘Taunt, 153 ; "3
Marsh. 43; 17 RB. R. 275. 66,
198
. Pedrick, 29 L. T.,N. 8.178 19
Lickbarrow v. ae 2T.R.63; 1
R. R. 425 ........ saz 27, 237
Liddard v. Kain, 2 ‘Bing. 183 ; 9
Moore, 356 . 115
Liddell v. Lofthouse, 71896] 1 Q. ‘3B.
295; 31 L.J., N.C. 129; 408. J.
DIS ccicaswnbonss meant eatew ten 454, 456
LiJley v. Rankin, 56 L. J., Q. B. 248 ;
55 L.T.,N. 8, 814 .. . 406, 407

 

 

 
XXVi

PAGE

Limpus v, General Omnibus Co., 1
311, 322
20

He B05 626) a isesweses sues
Lindley v. Lacey, 5 N. RB. 61
Line v. Taylor, 3 F. & F. 731
Little v. Hacket, 9 Davis, Supr. Ct.

 

U.S. 360. 360
Liverpool Adelphi Loan Association
v. Fairhurst, 9 Ex, 422.. ese 155

Llandaff and Canton Districts Mar.
ket Co, v. Lyndon, 6 Jur., N. 8.

1344; 30 L. J., M. C. 105 ; 8
W. R. GOB: sieeve w. = 50
Lloyd v. Ogleby, BC. B, "N.S. 667. 307,
308, 310
Load v. Green, 15 M. & W. 216...... 154
Lobb v. Stanley, 5 Q. B. 574, 581... 20
Lockett v. Nicklin, 2 Ex. 93 ......... 20
Loder v. Kekulé, 27 L. J., C. P. 27... 193,
194

London Chartered Bank of Australia
v. Lempriere, L. R., 4 P. C.
BID: witesea songe. T
— General Omnibus “Co. v,
Booth, 63 L. J., Q. B. 244... 314
— and Yorkshire Bank v. Bel-
ton, 15 Q. B. D. 457; 54 L. J.,

Q. B. 568.. 230
Longmate ». ‘Ledger, 6 ‘Jur,, NOS.

BST cores 156
es °. ‘Holliday, ‘6 Ex, “764,

766 . Stein 145, 214
Lovesey 2 v “Stallard, "30 L T., N.S.

792 . 346
Lowe v. London and North Western

Rail. Co., 21 L. J., Q. B. 363 ...... 167
Lowenfeld v. Howat, 19 Ct. of Sess.

Cas., 4th ser. 466 . sapeiteenns ALZ

Lucas v. Bristow, El. ‘BL & EL 907. 19

—— v. Delacour, 1 M.& W. 249;

14 RB. R. 426 . sanesenes del
Luff v. Leaper, 56 J.P. 773 440
Lygo v. Newbolt, 23 L. J., Ex. 108. 237,

288, 290

Lynch vr. Nurdin, 1 Q. B. 33... 288, 290
Lynn v. Bell, 10 Ir. R., C. L. 487 ... 406,
444

 

Lyons v. Martin, 8 A. & HE. 515; 3
NideP. 509 a. insasaieneens 311

M.

Macdonald v. Longbottom, 6 Jur.,
N. 8. 724. 19
Mackay v. Commercial ‘Bank of New
Brunswick, L. R., 5 P. C, 394; 43
Lidsy Be GuSl canrnsiness 3 119

 

TABLE OF CASES.

PAGE

22, 45,

167, 168
Macnee v. Persian Investment Cor-
poration, 44 Ch. D. 306; 59 L. J.,
Ch. 695; 62 L. T., N. 8. 8943 38

Maclean v, Dunn, 4 Bing. 722 ...

W. R. B96 “e 427, 431
Mallan v. Radlof, BNR. B4..0.... 139
Manby v. Scott, 1 Mod, 136...... "26, 425

Manchester and Altrincham Rail.
Co, v. Fullarton, 14 C. B., N. 8.
54; 11 W. R. 754.. 286
Manchester, Sheffield and ‘Lincoln-
shire Rail. Co. 2. Brown, 8 App.
Cas. 703 ; 53 L. J., Q. B. ‘124; 50
L. T., N. 8. 281; 32 W. R. 207... 267
Manchester, Shetfield and Lincoln-
shire Rail. Co. v. ihe, 14 C. B.
21S cicecn 350
Mangan v. “‘Atterton, Tee RB, “L Ex.
239; 35 L, J., Ex. ‘161. sidieaase, 329.
Mann ». Ward, 8 Times L. B. 699... 288,
290, 315
Manning v. Purcell, 24 L. T. 317 .... 383
Manzoni v. Douglas, 6 C. P. D. 145. 283,
302
Marfell v. South Wales Rail. Co., 8
Sg, eee a ey C. P.
315. seve 224, 350
Margetson 2 wv . Wright, 5 M.& P. 606;
1M. & Se. 622... 95, 129, 130, 131, 133
Marner v. Banks, 171. T, N, 8. 147;
16 W. R. 62 ...... 236
Marryatt ». Broderick, 2M. & W.
369 : w.. 375, 376, 385, 394
Marsh ¢. ‘Telf, 3 F&F. 234 0, 34
v. Keating, 1 Bing. N.C.198 59

 

Marshall v. Lynn, 6 M. & W. 118. 19
Marson », Short, 2 ue N.C. 118 ;
2 Scott, 242 ...... 175

Marten v. Gibbon, 33. Te T., N. ‘s.

561 ; 24 W. R. 87—C. A. 409, 411
Martin ». Hewson, 10 Ex. 737 ...... 380
v. North Metropolitan Tram-

ways Co., 3 Times L. R.

600 secexces «. 283
— vv. Smith, 6 Scott, N. R 272. 444
Martindale v. Smith, 1 Q. B. 395.. ‘25, 27
Martineau +. Kitching, L. R.,7 Q. B.

436... 25
Marvin v. Wallace, 2 ‘Jur., ‘N. ‘s. 689 8
Marzetti ». Williams, 1 B. & Ad.

AD 2c nsnanines tus eriabieniearaeeiiersarescas 189
Mash v, Densham, 1 M. & Rob. 442, ee

 

Mason v. Keeling, 12 Mod. 333 330, 333
Masters r. Green, 20 Q. B. D. 807;
59 L. T., N.S. GIG rest ced even
Matson v. "Baird, 3 App. Cas. 1082 ;
39 L. T., N.S. 304; 26 W. R, 835 349
TABLE OF

PAGE
Matthews v, London Street Tram-
ways Co., 58 L. J., Q. B.
12; 60 L. T.,N.8. 47;

52 J.P. 774 ........... 300

». Parker, N. P. 1847 ...... 86

May v. Burdett, 9 Q. B. 101 ......... 338
ee Wardley, 14 C. B., N. 8.

550 . seer. 345, 346
M‘Cance v. London and North Wes-
tern Rail. Co., 7 H. & N. 477; 31
L. J., Ex. 65; a Th, day Ex. 39—

Ex. Ch. . ..265, 266, 277

M‘ Carthy v. ‘Young, 3 iy T., N.S.785 | 244
M‘Connell ». Murphy, L. R., 5 P.C.

203 ; 28 L. T., N.S. 7138 108
M‘Elwaine v. oe 9 Ir. C. L. R.
13.. 380

M'Hole v. ‘Davies, ‘T a. ‘B. D. 59; 45

L. J. M. ©. 30; 33 L. TN. 8.

502 ; 94 W. BR. 343... 52
M‘Kean ». M‘Iver, L. B., 6 Ex. 36;

40 L. J. Ex. 30; 24 L TNS

BBO! cisacinche wee 268
M‘Renzie v. Hancock, Re M. 436. 194
M‘Kinnell ¢. Robinson, 3M. & W.

AB4 ov ucuseernee 416, 426, 443, 444, 474
M‘Kone v. Wood, 5 C. & P.1......... 332
M‘Laughlin v. Pryor, 1 C. & Marsh.

354; 4 Scott, N. R. 655; 4 M. &

G. 48 ene wee. 240, 243, 316
McMahon v. Field, 7 ‘0. B. D. B91 ;

50 L. J., Ex. 552—C, A. 188
M‘Manus v, Cricket, 1 East, ‘106 ; 6

R. R. 518.. eis ait
». Lancashire “and York-

shire Rail. Co.,4 H. & N. 327—

Ex. Ch. sessecssseee 208, 260, 265
McWilliam v. Dawson, 56 J.P. 182. 464
Mearing v. Hellings, 14 M. & W.

712. eee 379, 380
Medawar v. Grand Hotel Co., ee

2 Q. B.11; 60 L. J., Q. B. 209;

 
 

64 L. T., N.S. 851... 200
Mellish v. Motteux, Peake, N. Pp, °C.

L165. wanes sedate LOL
Mellor v. Leather, 17 Jur. 709... 61
Mesnard v. Aldridge, 3 Esp. 271... 40, 42
Metzler v. Gounod, 32 L. T., N. 's.

656 . a 19
Mews v. Carr, 26 Ly ioe Ex. 39 0... 34
Meynell v. Bone, 21 L. Ti 168 scscen 444
Michael v. Alestree, 2 Lev. 172; 1

Vent, 295 ......0c0e. 284, 335, 337
Midland Rail. Co. wv. ‘Daykin, 1 17

C. B. 126.. fs 350
Milan, The, Lush. 388 .0ccusesee 300
Miles v. Sheward, 8 East, 7 173

Miller v. Beale, 27 W. B. 403 (M.B.) 48
—— v, Kimbray, 16 L.T.,N.S.360 333

 

CASEs, XXVil

PAGE

Miller v, Lawton, 15 ©. B.,N. 8. 834 122
Mills v. Armstrong, 13 App. Cas. 1;
57 L.J., P.D.& A. 65; 58 L. T.,
N. 8. 423; 36 W. R. 870; 52 5.P.

212. «+. 800
Milne ». : Marwood, ‘15 ©. B. 778... 145
Milnes v. Cowley, 8 Price, 620 ...... 148
Miner v, Bradley, 22 Pick. mae 459

(Amer.) ....... 2
Mitchell v. Crasweller, 22 L. Te, OP.

100 csssseniceves 318, 319, 320

—— v. Hayne, 2 Sim. & S. 63.. 37
Moffatt v. Bateman, L. R., 3 P. C.
115 ; 22 L. T., N.S. 140; 6 Moore,

PC, C., N. 8 369... Sevan 283
Moggridge v. Jones, 3 Camp. Bi sacse 184
Mollison v. Noltir, 16 Ct. of Sess. Cas,

4th ser, 350 ..... wexees, AT]

 

Mondel v. Steel, 8 M. “& W. "858. sees 185
Monkton v. Pashley, 2 Salk. 639 ... 345
Moorcock, The, 14 P. D. 64; 58
Ld, Bae; 60 L. T., N.S, 654;
37 W. R. 4390, A. sees 106
Moore v. Peachey, 7 Times L, R. 748 417
Moran v. Pitt, 42 L. J., Q. B. 47; 28

L. T., N. 8.'554; 21'W. BR. 554 . 58

Morden v. Porter, 70. B, N. 8.
GA mewisdaucod dugenaynentinsicevanieeseees 346
Morgan v. Ravey, 30 L, J., Ex. 131. 203,
206

Morley v. Attenborough, 3 Exch.
500; 18 L. J., Ex. 148... 103
— 4% Greenhalgh, 32 L. Je
M. C. 93 438
Morris v. Blackman, ‘10 Jur., 'N. 's.
520 .

 

serene 482

v. Nugent, TO& P5672... 340

Morse v. Slue, 1 Ventr. 238.. wee 254
Mortimer v. Bell, L. R., 1 Ch. “10;

35 L. J., Ch. 25.. wee 44

Morton v. ‘Tibbett, 16 0. 'B. “228. event 7

Mosley v. Fossett, 1 Rol. Abr. 3...... 204

Moss v. Sweet, 16 ‘Q. B. 493; 20 L. J.,
Q. B. 167; 16 L. T., 0.58.
BAL ocsesseseeree 164, 169, 184
v. Townsend, 1 Bulst. 207 208, 210
Mounsey v. Ismay, 1 H. & C. 729 ; 32
L. J., Ex. 94... 371
—, 34 L. Ty Ex. 52. 372
Mowatt v. Lord Londesborough, 3

 

— tt.

E. & B. 307.. 190
Mullet v. Mason, i ‘R, 1 C 'P. 559 ;
35 L. J., C. P. 299 199

Mulliner v, Florence, 3 Q. B. ‘D. 484
47 L. J., Q. B. 700; 38 L. TNS.
167. wee 207, 208, 211

Mummery » v. Paul, 40, Byi822) ssecce "145,
171, 177
Murley v. Grove, 46 J. P. 360......... 295
XXVIli

PAGE
seh v. Boese, L. R., 10 Ex. 126;
41L.J., Ex. 40; 33 L. TN. 8.
139 cael stexea, 20
Murray v. Mann, 2 Ex. 538. wise "7, 119,
145, 153, 223
Muschamp +. Lancaster and Preston
Rail. Co., 8 M. & W. 421; 3 H.&
C. 771; 4H. & C. 582—Ex. Ch... 266,

271

Myers v. London and South Western
Rail. Co., L. BR. 5 C. Pehl w....... 276
Mynn «. Joliffe,1 M. & Rob, 326... 46

N,

National Mercantile Bank v. Rymill,
44 L. T., N.S. 767—C, A. 36

Newcomen vt. Lynch, 10 Ir. R., C. ie
248-—Ex. Ch.. .. 388

Newton v. Trigg, 1 Show. 270......... 201

Nicholas v. Badger, 3 T. R. 259,n... 341

Nichols y. Marsland, L. R., 10 Ex.
255; 2 Ex. D. 1; 46 L. J., Ex.
174—_C. Aas 250

Nicholson v. Bower, 28 L. de "Q. 'B.
OT ae

    
  

12
Nitro-Phosphate, ‘kc. Manure Co. 2.

London and St. Katharine Docks

Co., 3 Ch. D. 503; 39 L. T., N.S.

433 . 250
Noad +. “Murrow, ‘40 L. T, 'N.8.100 177
Noble v. Ward, Le Ri; 1 Ex. 117;

L, R., 2 Ex. 185-—Eix, Ch, sseses 19
North v. Jackson, 2 F. & F. 198...... 57
v. Smith, 10 C.B.,N. 8.572 292
Nugent v. Kirwan, 1 Jebb & ae

97 (Q. B. Tr.) ... 229
— ». Smith, 1 C. P. D. 441:
45 L. J., Cc. P. 697; 34 L. T.,
N. §. 827—C. A. casemate One 253

 

0.

Oakley ». Portsmouth, &c. Steam
Packet Co., 11 Exch.
623; 21 L. J., Ex. 101 250
— . Rigby, 3 Scott, 194
O’Connor v. Bradshaw, 5 Ex. 882;
20) Vigil, BK, 26:0 cccseseaiwessatentahe 435
Ogle v. Vane (Earl), L. R., 2 Q. B.
275; L. B., 3 Q. B. 272; 387 L. J.,
Q. B. 771—Ex. Ch... 19, 192
Ohrby v. Ryde Commissioners, 33
L. J., Q. B. 296 . ssieeuee- 298
Okell 0. Smith, 2 Stark. ‘N. P. o 107 160
Oldham v. Ramsden, 44 LJ, 0. Py
309; 32 L. T., N. © 82b cn. 468

 

TABLE OF CASES.

PAGE
Oliver v. North Eastern Rail. Co.,

L. R., 9 Q. B. 409 ; 43 L. J., pe

198 . sears 2293
Ollivant ». ‘Bailey, 5 0, i oe 157
Onley v. Gee, 30 L. J., M. C. 222 ; 4

L. T., N. 8. 338 ; 9 W. BR. 662 ... 470
Onslow v. Eames, 1 Stark. N. P. C.

81; 19 BR. R.680 os. 91, 101
Oppenheim vr. White Lion Hotel Co.,

L. RB, 6C. P.515; 40 L.J., C. P.

93 @ 25:1. TN. 8.98. osneegeensces 208
Orchard v. Rackstraw,9 C. B. 698... 222
Original ei Co. v. Gibb, 5

Ch. D. 713. -.. 310
Ormrod v. Huth, V4 M. ‘KW. ‘651, = 20S,

136, 150, 177, 181, 186
Orr v. Fleming, 2 Macq., H. L. Cas.

14; 1 W. RB. 839 0... 331
Osborn v. Gillett, L. R., 8 “Ex. “88:
44 L. Je Ex, 53., > 99
— Meadows, 12, B, NUS
J0.. sae. 346

— Thompson, ‘9 C.& P. 337 177
Osborne v. Hart. 23 L. T.,N. 8. 851;
TOW... Bis 831. duiscoensaendee vaviemnaned 106
O’Sullivan v. Thomas, [1895] 1 Q. B.
698; 64 L. J., Q. B. 398; 72 L.T.,
N.S, 285 ; 43 W. R. 269.........379, 419
Oughton v. Seppings, 1B. & Ad. 241 171
Ovenden v. Raymond, 34 L. T., N.8.

698 . 481
Overton 2 °. “Freeman, ‘21 L. Jy C. ?.

52.. vax 297,298
Owen's ¢ case, 1 “Mood. 6. ron 905 aeioels 65
Pe

Page v. Morgan, 15 Q. B. D. 228 ; 54
L. J., Q. B. 434; 53 L. T., N.S.
126% 38: W. RB. 793— Cc. A. 12

Paice t. Walker, L. R., 5 Ex. ‘173
39 L. J., Ex. 109 ; 22 L, L, N.S:

547 . 121
Palmer 1 wv Grand Junction Canal Co.,
4M. & W. 749 oe 249
Pee: ie le 91. i N.S.
426
pe r. South Wales ‘Rail. Co., sy
1H. & N. 392 ....... 259
Parfit v. Jepson, 46 L. J. iC. 'P. ‘529 ;
36 L. T., N. 8. 251.. 44
Parker v. Farebrother, 2 Ww. R. 370 35
— 1. Great Western Rail. Co.,
7 Scott, N. R. 835.00... 249
—— ov. Wallis, 5 EB. & B28... 12

 

v. Walsh, 1 Times L. R. 583 335
Parkhurst v. Foster, 1 Salk. 387...... 221
TABLE OF CASES.

PAGE
Parkinson v, Lee, 2 East, 314; 6
R. RB. 429,, 110,117
Parr v. Winteringham, 28 L, de :Q. B.
123 ; 5 Jur., N.S. 787......08 385, 386
Parsons v, Alexander, 1 Jur, N.S.
660.. 408, 425

 

v Gingell, “40. B. 5503 16
L. J., C. P. 227 2.0... 221, 222,
347

—— v.Sexton, 4 C. B. 905; 16
L.J.,C. P. 184. ‘ --183, 185
Parton v. Crofts, 93 I, nm G.P. 189 14

Pasley v. Freeman, 3 1. B. 51; 1

R. R. 634 ...1 1B, 141, 142, 148, 147, 177
Paterson v. Powell, 9 Bing. 320...... 413
Pateshall v. Tranter, 3 A. & E. 108 ;

4N.& M. 649 «2... icapaess, 165

Patten v. Rea, 26 L. J., C. e 235. 321
—— v. Bhymer, 29 L. J., M. C.
189; 3H. &E.1. ..440, 441

Patterson 2. Gandasequi, 15 ‘East, 62;

 

 

13 BR. R. 368 . ‘a wee 120
Paul v. Dod, 2 C. ‘B. "800. spiposekink . 184
v% Hardwick, N. P. 1831.. a «OTE
—_ v. Summerhayes, 4 Q. B. D. 9;
48 L. J., M. C. 33; 39 L. T., N.S.
574; 27 W. R. 215 Sausyaisen 242

Payne ¥. Cave, 3 T. R. 148 ; TR R.
679 . . 8,42

-—. v. Lord Leconfield, BL Ls a
Q. B. 642; 30 W. R. 814 85
—— v. Whale, 7 East, 274.00... 113, 159,
164, 181
Peachey v. Roland, 13 C. B. 182 297
Pear’s case, 1 Leach, 212............... 236

Pearce v. Foster, 17 Q. B. D. 536 ;

 

55 L. J., Q. B. 306—C. A. ww. 421
Peek v. North Staffordshire Rail. Co.

10 H. L, Cas. 473; 32 L. J., Q. B.

241; 8L. T.,N.8. 768; 11 W. RB.

1023 sales ..250, 265, 267
Peer v. Humphrey, 2 A. ‘& E. 495... 58
Pendlebury v. Greenhalgh, 1 Q. B.D.

36; 45 L.J.,Q.B.3; 33 L. T.,

N. 8. 372; 24 W. RB. 98—C. A. ... 298
Percival v. Oldacre, 18 C. Ba N. 58.

338 . . 138
Peto wv. Hague, 5 “Esp. 134 125

Pettitt ». Mitchell, 5 Scott, N.R.721 25,

28

Phillpotts v. Evans, 5 M. & W.475 192
Pickering v. Busk, 15 Hast, 38; 13

R. R. 364.. 37, 114, 126, 152

xv. Dowson, 4 Taunt. 779 ‘114,

163

——  v. Marsh, 43 L. J., M. C.

143; 22 W. RB. 798... 335
Pickford ». Grand Junction Rail. Co., 5

10 M. & W. 399.. asians 249

 

XX1X

PAGE
Pierce v. Corf, L. R., 9 Q. B. 210;
43 L. J., Q. B. 52: 29 L. T., NS,
919; 22 W. RB. 299 . LB, 17, 23, 39
Pike v London General. ‘Omnibus
Co., 8 Times L. R. 164.........000... 300
Pilmore v. Hood, 5 Bing., N. C. 97... 149
Pinder v. Button, 7L. T., N.S. 269 111
Platt v. Bromage, 24 L, Is Ex. 63... 170
Plevins v. Downing, 1 C. P. D. 220 ;
45 L. J., C. P. 695; 35 L. TNS.
263 . « 175
Pluckwell 7. Wilson, 5 6. & Pp. 375 299,
300, 306
Polhill v. Walter, 3 B. & Ad. 114... 145
Poole v, Longuevil, 2 Wms. Saund.
OO wil Gh) aavegentsteaeadeesiee donned 228, 229
Pope v. Whalley, 6 B. & 8. 303; 11
Jur, N. 8.444; 34 L. J, M. C.
76; 11 L. T., N.S. 769
Potter v, Codrington, 9 Times L. R.
54. 417
vw. Faulkner, "31 he oe ,Q. ‘3B.
30.. . 323
Poulton 9. Lattimore, 9B.& ‘C. 265 157,
165, 185
Povey v. Purnell, N. P. 1858 ......... 225
Powell v, Edmunds, 12 East, 6; ll
B.R.816 vue... . 89
— v. Salisbury, 2 Y. wd. 394... 248
Power v. Barham, 4 A, & HE. 473 ... 134,

 

138, 143
—— v. Welles, Cowp. 818 ...... 161, 170
— v. Wells, Doug. 24, n. ......... 159

Powles v. Hider, 25 L. J., Q. B. 331 314
Prebble v. Boyhurst, 1 Swanst. 329 148
Prestwick v. Marshall, 7 Bing. 565 22
Price v. Morgan, 2 M. & W.55...... 127
Prince v. Brunette, 1 Bing. N.C.438 22
Prior v. London and South Western

Rail. Co., 2 Times L. R. 89......... 252
Protheroe v. Matthews, 5 C.& P. 581 339
Pyke, Ex parte, 8 Ch. D. 754; 47

L. J., Bk. 100; 38 L. T., N.S.

923; 26 W. R. 806—C. A. ...... 406, 416
Pym v. Campbell, 6 Ell. & Bl. 370 20
v, Great Northern Rail. Co., 2
B. & 8. 767; 31 L. J. Q. B. 249;
4B. & 8. 396 ; 32 L. J., Q. B. 377
PEA KA Oh... cccsssietnesdvanncige 325, 327, 328

 

Q.

Quarman v. Burnett, 6 M. & W. 499 238,
240

ee vy. Colston, 1 Turn. & Ph.
147. ea e seacverce 416
XXX

R.
PAGE
Radley v. London & North-Western
Rail. Co., 1 App. Cas. 754; 46
L. J., Ex. 573..
Rafiles ¥. Winchelhaus, 33 L. ‘I, Ex,
160 .
Rambert ». “Cohen, ‘4 Esp. 213; "6 Ba
R, 854.
Ramsay v. :' Thompson, 9 ‘Rettie, 140
Ramsden v. Lancashire & Yorkshire
Rail. Co., 53) J. Ps 188 ..cscssscscees
Randall v, Newson, 2 Q. B. D. 102 ;
46L. J., Q. B. 259; 36
L. T., N. 8. 164; 25
W. R. 113—C. A....108, 116,
187

289
184

178
310

287

—— v. Raper, E.B. & H, 84 ; 27
L. J., Q. B. 266 . ..193, 198
Randell v, Tsimen, 25 Ds J, 6. es
307 . seateng Ler
Randleson ». . Murray, 8 A. & E109 214
Raphael v. Bank of Hngtend, 17C.B.
VOL saves
Rawson v. Johnson, “T ‘East, 203 ; 6
R. R, 252,, wages LOY, 176, 184
Rayner v. Mitchell, 3 G. P. D. 359 ;
25 W. R. 633. es
Read v. Anderson, 13 Q. 'B. ‘Dp. 779 ;
3 L. J., Q. B. 532; 51
L T., N. 8. 55; 32 W. R.
950—C. A. veces 370, 411, 418
—— v. Edwards, 17 C. B., N. 8. 245;
11L, T., N. 8. 311 ... 334, 336,
348, 344, 348
—— v, Fairbanks, 22 L. J., C. P.
DUG seis
Readhead ». Midland Rail. Co., si R.,
4Q. B. 379; 36 L. J.,Q. B. 181..

415

320

189

116,

232

Reading v. Menham, 1 M. & Rob.

234.. 240

— (Mayor of) °. Clarke, 4B.
& Ald, 269.

Redgate v. Haynes, 1 “Q: "B. D. “39:
45 L. J., M. C. 66 ; 33 L. TNS.
779. 442

Reed v. Tate, N. P. 1846. 1399, 307

Reeve v. Palmer, 28 L. J., 6. 'P. ‘168 183,

172

 

307

Reeves v. Capper, 5 Bing. N.C.136 26
R. v. Aldridge, 4 Cox, C. C. 148...... 52
— v, Ashton, 22 L. J., M. 0.1 ...425, 441
— », Bailey, 4 Cox, C. C. 390, 397... 141,
423, 425

— v, Banks, R. & RB. 441... 54, 237
— v, Birchall, 4 F. & F, 1087........ 281
— v. Bristol JJ., Banc. 1854........ 429
— v. Brooks, 8 C. & P, 295 wu... 54, 236

 

TABLE OF CASES.

 

   

 

 

 
  

PAGE
R. v. Brown, [1895] 1 Q. B.119; 64
,M.C.1; 72L.T.,N.8.
23 ; ‘43 W.R. 9290. C. B.... 467
— wv. Buckmaster, 20 Q. B. D. 182 ;
57 L. J., at, OL D5 sicvtsain teenie 420
— v. Bullock, Ts .1C.0. B.115;
37 L. i M. a 47. - 56
— v. Carlisle, 53 L. J., a, C. “109 142
— v. Cavendish, 8 Ir. R., C.L. 173—
C,O. Be. cave 280
— 4%. oa R. & R. "7; “1B R. ‘RB. 5
—v. child, C. C. CO. 1858 338
— v. Cook, 1847.. ‘ 279
—v.— 13 Q.B. ‘D377; “S1L.T.,
N.S. 21; 32 W. R. 796 . 449, 466
— v, Cooper, 16 Jur. 750 seceesscsee 55
— v, Crawshaw, 30 L. J., M. C. 58 ;
3 L. T.,N.8.510;9 W.R.68 429
— v. Cridland, 7 E. & B. 853. 346
— 4. Critchlow, 26 ges R. 681. 346
— v. Crump, 1 0. & lee 55
—v. Dale, 7 C. & P ‘3 53
— v. Dixon, 10 Mo d. a. 472
— v. Gardner, N. P. 1851... 419
—v Goldsmith, 12 Cox, C. 0. Bod. 60
— v. Gompertz, 9 Q. B. 824 155
— v. Haigh, 1857. sgacwite JL
— v, Harris, 10 Cox, C. C. 352 432
— v, Harvey, 1 Leach, 467.. 53
— v. Haywood, Russ. & Ry. LE asain 55
— v. Henson, 1 Dears, ans C.C.
24.. 81
— wv. Holmes, 22 L. J. M. C 122 439
— v. Horan, 6 Ir. R., C. L. 293—C.
CLR. v.60
—w Hudson, “Bell, C. C. "263 : "29
L. J., M. ©. 145. sien
—v. Huggins, 2 Ld. Raym. 1583 . . 329,
338
— 4, een JJ., 4 a B. D.
522. a wee 335
— wv. Ivens, 70. & P. 219° wee 201
— v. Janson, 4 Cox, C. C. 8 wee 54
— v, Jeans, 1 C. & K. 589 . - «5B
—v. Jones, 22 L. T., N.S. 217 ; 1
Cox, C. C. BAA seca aie 281
— v, Kayley, 10 L. T., N. 8.339 ... 346
— v. Kendall, 30 L. T., N.S. 345;
12 Cox, C. C. 598—C. C. RB... 54
—v. Kenrick, 5 Q. B. 62.. 141, 142
— v. Kew, 12 Cox, ©. C. 355 . 281
— v, Kilderby, 1 Saund. 312, n n. 3. 213
— v. Lewis, 1] Cox, C. C. 484 1.0... 45
— v, Liston, 5 T. BR. 240......0.0.. 426, 430,
474
— v. Luellin, 12 Mod. 445 ..... 201
— v. Mason, Leach, C. C. 548 ...... 472

— v. Mogg, 4 C. & P. 364
TABLE OF

 

PAGE
R, v. Murray, 5 Cox, C, C. 509 (Ir) 282,
283
— v. O'Connor, 45 L. T., N.S. 512—
C.C.R stunceveseyareee “423
— v, Orbell, 1 Mod. 42. sartaccnince 49
— 4. Parker, 33. L.J.,M.C.185 ... 347
— v. Patch, 1 Leach, ie, Be
— v. Patey, 2 W. Bla. 721 . 55
— v, Peach, 1 Burr. 548 . 424
— v. Pear, 1 Leach, 521 .... . =«654
— v, Pembliton, L. R., 2 C. “C ‘R.
119; 43 L. J., M.C. 91; 30
L. tT, N. 8. 405 : 22 W. R.
553 ; 12 Cox, C. C. 607 ...... 56
—v,. Phillips 2 East, P. C. c. 16, s.
98.. susie. “BD
—v. Pitman, 2C.&P. 423... wee 53
— v. Pratt, 1 Mood. C. C. i 54
—v, —— 2%4L.J.,M.C.118...... 346

— v, Preedy, 17 Cox, C. C. 433...452, 453,
458, 459, 460, 461, 462,

463, 464, 468

— v. Pywell, 1 Stark. N. P.C. 402. 141

— v. Read, 6 Cox, 0. 0. 134 ...... 141, 142
—v. Roach, 1856. wwidsneveas 438
—v. Rogier, LB. &C. 972 ; 2 D.&

R. 481 ...... 421, 422, 449, 472, 473

—v, Rymer, 2 Q. B. D. 136; 46

 

L. J., M. CG. 108; 35 L. T,,
N.S. 744; 25 W. RB. 415...... 201

—v. Saddlers Co., 32 L. J., Q. B.
337. nese 148, 147, 153
—v. Sanders, 9 Q. B. "235 ciavudioke. Te
— v. Sheppard, 9 C. & P. 123...... 53, 141
— v. Silvester, 33 L. J..M.C.79... 30
— v. Smith, 1 Mood. C. C. 473 ...... 224
—»v, 12 Cox, C. ©. 597 ...... 60
— v. Stancliffe, 11 Cox, C. C. 318... 60
— v. Swindall, 2 C, & K. 230......... 280
— v. Timmins, 7 C. & P. 500 ......281, ae

— v. Tivey, 1 ©. & goes ess acneaes oe
— vr. Tuddenham, 9 P.C. 937... 430
— ve. Walker, 1C. & P 32 itivsaranen OSU)
— v. Welch, 45 L. J., M. 0.17 ...... 56
— v. Wheatley, 2 Burr. 1127... 141, 142,
144
— v. Whitney, 1 Mood. C. 0. 3...... 55
— v. Wood, 3 B. & Ad. 657........00 473

—v, Worton, [1895] 1 Q. B. 227;

64 L. J., M.C. 74; 72 L. T., N.S.

29—C, O. R. 452, 464
Reese River Silver | Mining ‘Co. 0.

Smith, L. B.,4 H. L. 64; 39L.J.,

Ch. 842. .ssees. scsavew 248
Reggio v. Steven, tf Times L. R. 326 412
Reuss v. Picksley, L. R., 1 Ex. 342,

—Ex. Ch. .... doe 21
Benne Sala, 4 on Pp. "D. “939 : "48

Lied gS. Ped 02 wiawteneeniiive acces 20

 

 

CASES. XXX1
: PAGE
Richards v. Porter, 6 B. & 0.437... 17
», Symons, 8 Q. B. 90 ...227, 228

Richardson v. Brown, 8 a 338 ;
1 Bing. 344,. 137

— v. Dunn, 30 L. Jk C. P.

44

». North Eastern Rail.

Co., L. R.,7 C. P.75;

41 L. J.,C. P. 60; 26
Lie Te, NaS: 130 sesse 253

v. Sylvester, L. RB. 9 Q.

B. 34; 48 L.3.,Q. Bol oe. wee 149
Ricbmond v, Smith, 8 B.& 0.9 ... 201,
202, 204

Rickard v. pubis. 38 L. T., N. 8.
841—C. A...

Ricketts v. East India Docks and
Birmingham Junction Rail. Co.,
21 L. J., C. P. 201.. 348

Ridgway ». Farndale, [1893] 2Q. Bs

309 ; 61 L. J., M. C.
199 : 67 L. T; N. 8.
318; 41 W. R. 128; 56
J. P. 697. 440

v. Wharton, a7 L. Te: “Ch,
46. 14

Rigby a . Hewitt, 5 Ex. 240; ‘19 L. 7
Ex. 291 ... - 288, 326

Rigg v THatl of Lonsdale, 1H.&N,

923 . 343, 344

Rimell ». " Sampayo, TO&P. 254. 237

Ring v. Roxbrough, 2 C. & J. 418 ;

2 Tyrw. 468 ........ 172, 173

Rishton v. Whatmore, 8 ‘Ch. D. ‘467;

..10, 12

 

47 L. J., Ch. 629; 26 W. R. 827. 15,
39
Roberts v. Great Western Rail. Co.,
4 Jur, N. 8. 1240......... 350
v. Jenkins, 1 Foster (N. ao
116. 62
Robertson ¥. “Howard, '30.P.D. ‘280;
47 L. J., C. P. 480.. a 172

Robinson v. Great Western Rail. ‘Co.,
35 L. J., C. P. 123; H.
&R. 97. 261
v. Rutter, 24 L. I. “Q. 'B.
25

37, 47
rv. South Western Rail. Co.,
19 C. BN. 8S. 51; 34

L. J., O. P. 234 ......... 270

—— ov. Walter, 3 Bulst. 270 ... 210
—  v. —— Pop. 127.. 208
Roddy v. Stanley, 5 Ir. Jur. 10. ie te 432

Roebuck v. Hammerton, Cowp. 737 413
Rogers, a parte, 15 Ch. D. 207 ;

3.1L. T., N. 8. 163; 29 W.
R 29—G. A. 411
v. Ingham, 3 Oh, D. 351...... 170
Rohde v. Thwaites, 6 B. & C. 388... 175

 
XXxX11

PAGE

Rolin v. Steward, 23 L. a C. P.148 189
Rolph v. Crouch, L. R., 3 Ex. 44;

37 L. J., Ex. 8 ..... 198
Rooth v. North Eastern Rail. Co.,
L.B., 2 Ex. 173; 36 L. J.,

Ex. 83. 265
— v. Wilson, 1 B. & ‘Ald. 59; ‘18
R. R. 431. eves, 225
Roots v. Dormer, 4 ‘B. & Ad. 77. gutiios 42
Rosewarne v. Billing, 15 C. B., N.S.
316 ; 33 L. J., C. P. 55... .. 411

Rosse v. Bramstead, 2 Rol. ‘Rep. 438 209
Rourke v. Short, 5 E. & B. 904 ......
Routledge v. Grant, 4 Bing. 653...... 42
Rowley v. London & North Western

Rail. Co., L. R., 8 Ex. 221; 42 L.

J., Ex. 153 ; 29 L. T., N. 8. 180—

Ex. Ch. ... 325, 328
Rushforth 9. ‘Hadfield, 7 East, 229 ;

8 R. RB. 520.. 217

Sadler v. Henlock, 24 L. J., Q.
138. vis 2904, oor 298
—_ South ‘Staffordshire Tram-
ways Co., 23 Q. B. D. 17;
68 L. J., OB. 179% 60 L,
T., N.S. 344; 37 W.R. 204

=O. As

293
— v. Smith, 10B.&8.17 : le R.

ac B. 40; 39 L. J., Q. B. 17; 21

L. T., N. 8. 502; 18 W. R. 148—

Ex. Ch. ian BOL
Salmon v. Ward, 20.« P. 211. 108, 135
Samuel v. Wright, 2 a ZEB 5 vcaercuer 238
Sanders v. Teape, 51 L. T., N. 8. 263 ;

48 J.P. 757 oo... xe BBW

Sanderson v. Bell, 2 C.& M. 304... 218
Sandys v. Florence, 47L.J.,C.P.598 205
Sarch v. Blackburn, M. & M. ae
4C. & P. 297.. . 838
Sarl v. Bourdillon, 26 L. ‘J. CP. 73 16, 21
Saunders v. Plummer, Onl. Bridg.
227. soa 200, 204, 207
U. v. Topp, 4 Exch, “394, 6, 7,8
Saunderson 7. Jackson, 2 B. & AA
238; 5 R. R. 580 . me 21
Savage 2. Madder, 36 L. a ‘EX. 178;
16 L. T., N.S. 600 ; 16 W. RB. 910 382,
417
Saxby v. Wilkin, 1 D. & L. 281...... 173
Scarfe v. Morgan, 2 M. & W. 270 ... 210,
217, 218, 219, 220, 227
Scattergood v. Sylvester, 19 L. J.,
Qu Be Palos tasveasesaes wtturieadeeyasce ODO

 

TABLE OF

 

CASES.

PAGE
Scetchett v. Eltham, Freem. 534 ... 336
Schneider v. Heath, 3 Camp. 506 ;
14 RB. R. 825......... 148, 152
v. Norris, 2 M. & 8. 286 ;
15 BR. R. 250. 21
Scholefield v, Robb, ‘2M. & R. 210 62,
65, 76, 83, 181
Scotland (Bank of) v. Watson, 1
Dow, 45; 14 R. R.11......... 126, 186
Scott v. England, 2 D. & L. 520;
141. J., Q. B. 43.. vee 45
vy. London Dock Co., 13 W.B.
306

 

 

410. ‘ a
Searle 1 v . Laverick, “: Rh, “9 Q 'B.

122; 43 L.J., Q. B. 43; “30L. T,

N. 8.89. waaeahedaats
Semple’s case, ‘| Leach, “$20
Settle v. Garner, Ni BP: 1857 aaraaney
Seymour ¢«. Greenwood, 7 #H. & N.

BOO. sdaqased ad waheae, OLS

223
236
81

 

Sharman x. Brandt, Ale. R, 6 Q. B.
720; 40 L. J.,Q. B. 312; 19 W.
R. 936—Ex. Ch. 22, 38

Sharp v. Powell, L. R., TOP. 253 ;
411. J., C. P95; 261. T, NS
436 . 326

Shaw v. “Caledonian ‘Rail. Co., 17 Ct.
of Sess. Cas., 4th ser. 466...

v. Morley, L. R., 3 Ex. 137;
37 L. J., M. C. 105; 19 L.
T.,N.8.15; 16 W.R. 763 454

Sheldon v. Cox, 3 B. & C. 420

Shelly v. Ford, 5 C. & P. 313 .........

Shelton v. Livius, 2 C. & J. 416...... 89

Shepherd v. Bristol and Exeter Rail.

Co., L. R., 3 Ex. 189;

412

 

37 Li, J., Ex. LS disse 268
—  .v. Kain, 5B. & A. 240 134,
143, 151

Sherbon v. Colebach, 2 Ventr.175... 421
Sherrod v. Longden, 21 Towa, 518... 198
Shrewsbury v. “Blount, 2 M. & G.

475 ; 2 Scott, N. RB. 588 ...... 146, 149,
150
Siegel v. Eisen, 41 Cal. 109.. 309

Sievewright v. Archibald, 20 L, ae
Q. B. 529., so 14

Sigel x. Jebb. 3 Stark. ‘NLP. C2 s. 425
Simkin v. London & North Western
Rail. Co., 21 Q. B. D. 453; 59 L.
J., QB. 197; 53 J.P. 85 wo... 287
Simmonds v Humble, 13 C.B. NS Ss
DOS* agaan, siege 8
Simmons v. Swift, ‘LB. “& Cs ate RS:
Simons 7, Great Western Rail "Ob
18 C. B. 805; 26 L. J., C. P. 25. 259,
266
Simpson ¢. Bloss, 7 Taunt. 246 ...... 442
— +. Potts, N. P. 1847...87, 94, 17¢
TABLE OF CASES.

PAGE
Sims v. Landray, [1894] 2 Ch. 318;
63 L. J., Ch. 535 ; 70 L. T.,
N.S. 530; 42 W. R.621. 38
—— v. Marryat, 17 Q.B.9 ....... 103
—— v. Pay, 58 L. J., M. C. 39; 60
L TN. 8. 602 ; 53 J. P. 420...... 443,
452
Simson v. London General Omnibus
Co., L. B., 8 C. P. 390; 42 L. de
C. P. 112; 28 L. T., N. ’s. 560 ;
W.R. 595 syaisataiat aa, 303
Singleton v. Eastern Counties Rail.
Co., 7 0. B., N. 8. 287. 293
Skrine v. Elmore, 2 Camp. “407 ; “i
Bie F8k> cashes : ..178, 180
Slater v. Swan, 2 Stra. "872... ed
Slatter v. Bailey, 37 J. P. 262
Sleath v. Wilson, 9 C. & P. 608 ...... 319
Slim v. Great Northern Rail. Co., 14
C. B. 647 wee sieacsey QL
Smart v. Allison, N. ?. "1847 Bareeam 85
v. Hyde, 8M. & W. 728 ..... 173
Smeed v. Foord, 28 L. J., Q. B. 178 188,
189

 

 

 

Smethurst v. Mitchell, 28 L.J., Q. B.
241... 120
Smith v. Bailey, [1891] 2 Q B. “403;
60 L. J., Q. B. 779; 65
1. Ty N. 8. 331 ; 40 W.
R. 28—C, A. ............315, 322
— v. Bickmore, 4 Taunt. 474... 425
—— v. Chance, 2 B. & A. oe 21
R. BR. 485.. : ws 196
— v. Cook, 1 Q. B. ‘D. 79; “45
L. J., Q. B. 122; 33 L. T.,
N. 8. 722; 24 W. BR. 206 226,
331
«. Dearlove, 6 C. B. 132 n.... 200,
204, 207, 208
. Ferrand, 7 B. & C.19 ...... 29
", Great Eastern Rail. Co.,
L. R., 2 C. P.4; 36 LJ.,
C. P. 22; 15 L. T., N.S.
246 ; 15 W. BR. 131
— v.Green, 1 C. P. D. 92; 45

7

°

L. J, Cy B28) sidsceaieg LST
ts Hughes, L. R.,6 Q. B. 597;
40 L. J., Q. B. 221; 25

L. T., N. 8. BDV encuscaus 146
—— v. Kay,7 H. of L. Cas. 775... 144
—— v. Lawrence, 2 M.& R.1...... 238
—— v. Littledale, 15 W. R.69 ... 388
— vw. M‘Namara, N. P. 1853...... 285
—— v. Midland Rail. Co.,57 L. T.,

N.S. 813; 52 J. P. 262 253,
304

» Neale, 26 L. J.,C. P. 143... 17
. O’Brien, 11 L. T., N. 8.346 95,
131, 132

S38

I

 

XXX1i1

PAGE
Smith v. Parsons, 8 C. & P.199...... 116
v. Rolt, 9 C. & P. 696...... 176, 178,

 

v. Sparrow, 4 Bing. 88......... 30
Snead v. Watkins, 26 L. J., C. P.
Snow v. Hill, 14 Q. B. D. 588; 54
L. J..M. C. 95; 52 L. T., N.S.
859 ; 83 W. R. 475
Somerset v. Hart, 12 Q. B. D, 360;
53 L.J., M.C.77; 485. P. 327... 442,
465
Southcote’s case, 4 Rep. 83........... 254
Southerne v. Howe, 2 Rol. Rep. 5... 129
Sowerby v. Wadsworth, 3F& F.
734. seseeee 372
Spartali v. Benecke, 10 CB. 212... 184
Specot’s case, 5 Rep. 58a,p.118 ... 421

 

 

 

 

 

Spice vr. Bacon, 2 Q. B. D. 463 ; 46

a ee eee
896 . seecee 202
Springwell v “Allen, ‘Aleyn, ie 144
Squire v. Hunt, 3 Price, BB. aiccissisreties 176
U. Wheeler, 16L. T., N.S. 93 202
Stables v. Eley, 1 C. & P. 614......... 322
Stacey v. Livesay, N. P. 1856......... 225
v, Whitehurst, 13 W. R. 384. 345
Standish v. Ross, 3 Ex. 527.. -.. 170
Stannion v. Davis, Salk. 404 ......... 205

Staunton v. Wood, 16 Q. B. 638 ; "16
L. T. 486 ..... : 28
Stead v. Dawber, 10 Be « E 57. suse. LO)
Stevens v. Lee, 2 C.L. RB. 251......... 47

Steward v. Coesvelt, 1C0.&P.23... 117
Stiles v. Cardiff Steam Navigation
Co., 33 L.J., Q. B. 310; 10L.T.,
N.S. 844; 12 W. R. 1080 ......... 333
Stoddart v. Sagars, [1895] 2 Q. B.
474; 64 L. J., M. C. 234...433, 434, 463,

 

469

Stone v. Marsh, 6 B.& C. 551 ...... 59
Storey v. Ashton, L. R., 4 = B. 476;
38 L. J., Q. B. 223; 17

W. R. 727... 320
v, Robinson, 6 T. R. ‘138; 3R.

R. 137. Aicaeseres Bde

Storr v. Scott, 6 C. ‘cP. 241 sinciscdaas BOS

Strachan ». Universal Stock Ex-
change, [1895] 2 Q.
B, 329; 14 BR. 225;
73 L. T., N. 8. 6; 43
W. RB. 611—C. A. ... 413

—— vv. Universal Stock Ex-
change o- 2),
{1 895 le . B. 697

SHOAL siecnevasce tev 413

Strauss v. County Hotel Co., 12 Q.
B. D. 27; 53 LJ. Q. B. 25; 49
L. T., N. ’g. 601 ; 32 WLR, 170... 200

ce
XXX1V

PAGE
Street v. Blay, 2 B. & Ad. 456 ...110, 157,
161, 162, 163, 183, 184, 185
Strode v. Dyson, 1 Smith, 400 ... 127, 181
Stuart v. Wilkins, Doug. 18 ...... 102, 117
Stucley v. Baily, 31 L. J., Ex. 483... 113
Sunbolf v. Alford, 3 M. & W. 248... 207
Sutton v. Moody, Lord Raym. 250... 343
— v, Temple, 12 M. & W. 52... 115,
227, 237

Suydam v. Grand St. Rail. Co., 41
Barb. 365 ........... geugieace B09
Sweet v. Lee, 3 M. & Gr, ae 52, 460... 20

a

Sweeting v. Turner, L. Q.. B:
310; 41 L. J., eeceD ania.
N.S. 796 ; 20 W. BR. 185.. 46
Swift v. Jewsbury, L. R., 9 "Q. Bs
301; 48 L.J., Q. B. 561 149,
150

». Winterbotham, L. R., 8 Q.
B. 244; 42 L.J., Q. B. 111...119. 149,

 

150
Swinfen v. Lord Chelmsford, 5 H. &
N. 890.. i 177
Swire v. Francis, 3 “App. ‘Cas. 106 ;
ATL. S., PLC. 18 . os « 119
Sykes v. Beadon, 11 Ch. D.170...... a)

 

v. Giles, 5 M. & W. 650 ...... 46, 121
— v. North-Eastern Rail. Co., 44

L.J.,C. P.191; 32 L. T.N. 8S.
199; 23 W. R. 473 isttelsetesesaemecn SLD
Symonds », Carr, 1 Camp. 361.. ‘114, 172
Ts

Taplin v. Florence, 10 C. B. 744...... 38
Tarling v. Baxter, 6 B. & C. 364...... 23,
25, 26, 27

Tarrant v. Webb, 25 L. J., C. P. 261 322,
323

eae v. Ashton, 1 Q. B. D. ee 45
,Q. B. 260; 34 L. T., Ss

af a W. BR. 581. 297
Tatam v. Reeve, [1893] 1G &, 44;

62 L. J., Q. B. 30; 67 L. T., NLS s!

683 ; 4V W. R174 oo 418
Tate v. Gleed, C. B., H. T. 24 ‘Geo, 3 228
Taylor v. Ashton, ll M. & W. 413... 144,

148
v. Bullen, 5 Ex. 779 ......... 151
io Caldwell, 3B. & 8. 826. 112
>, Chester, bi, B. a B. 309 ;

38 L. J., Q. B. 225... 183
— v, Great Northern Rei Co.,

LL, 1 C. P. 3855 35 L.
J., EDU reccsmenes 249, 276

 

TABLE OF CASES.

PAGE

siilovine » 29S

v. Holt, 3H. & 0.452... 190
— vw Smetten, 11 Q. B. D. 207 ;
52 L. J, M. C. 101; 48

429, 431, 432
— Sinith, [1893] 2 Q. B. 65;
a diss a B. 331; 67
i. r NW. 8. 39; 40 W.R.

486.. wen 12,16

— wv Wakefield, Cal, "& BL. 765 7
Tempest v. Fitzgerald, 3 B. & Ad.

Taylor v. te wes 24 W. R, 311
—C.A

 

680 922 Re Rib 26 occas 12
v, Kilner, 2 C. & P. 308 ... 175,
176

Templeman v. Haydon, 19 L. T. 218 239
Thacker v. Hardy, 4 Q. B. D. 685 ;
48 L. J., Q. B. 289; 39 L. T., N.
S$. 595 ; 27 W.R. 158—C. A. 401, 408,
409, 410, 411

Thistlewood v. Cracroft,1 M. & 8.

 

500 . 444
Thom v.  Bigland, 8 Ex. 795 177
Thomas v. Morgan, 2C. M. & R. 496 ;

Ds eRe WO 2 DBL Ssaerts matcnaa dieser os 332, 333

Thompson v. Bertrand, 23 Ark. 730 62
v. Davenport,9 B.& C.78 = 44.

118, 120

—__ v. Lacy, 2 B. & Ald. 286;
22 R. BR. 385 ............ 200
—  . Patterson, N. P. 1846 96.
97

Thornett v, Haines, 15 M. & W. 367 ;
15 L. J., Ex. 230 ....... . dt
Thorogood ». Bryan, 8 C. B.115...... 283,
299

Thorpe v. Colman, 1 C. B. 990; 14
Di is CoP 260 esses sccedee 446

— 2, Thorpe, 1 Ld. oo 665 ;
1 Salk.171 ..... 28

Threfall v. Borwick, L. R, ‘to. Q. ‘B.

210; 44 L. J. 1 QB. 87582 1.1 Ts,

N. 8. 32—Es. Ch... 207
Tillett v. Ward, 10 Q. ‘3. D. ‘VW:

L.J.,Q.B.61; 47 L. TN. S. 846

al We BR, 19? 336
Tolhausen v. Davies, 58 L. oT Q. ‘B.

98—C. A. .... 295

Tollett x. Thomas, Th R. 6Q. B. Bld:

40 L. J., M. C. 209; "4 L. TN.

8. 508 ; 19 W. BR. 890. 439
Tooke v. Hollingsworth, 5T. B 218; i

2 Ra By DU Bicrsierseitennnesicccnnsnestarieg 27

Toomey rv, London, Brighton & 8. C,

Rail. Co., 8 C. B. N.S. 146 00... 304
Torrance v. Bolton, L. R.,8 Ch. 118 ;

42 L. J., Ch. 177 ewes 35
Tourrett v. ae in, 4, Ch, 867;

27 W. RB. 706. 94
TABLE OF CASES,

PAGE
Towers v. Barrett, 1 T. R. 133 159, 163,
170, 183

Trent and Mersey Navigation Co. v.

Wood, 2 Esp. 127; + Doug. 287... 249
Trimble v. Hill, 5 App. Cas. 342;

49 L.J., P. 0.49; 42 L. T., NLS.

108; 28 W. R479... 877, 424
Tucker v. Axbridge Highway Board,

BB ce Od. shushensnwaavaavasegenenneeten 293
Tuff v, Warman, 27 L. J., C. P. 322 289
Turberville v. Stampe, 1 Ld. es

264 . .. 321
Turley v. “Thomas, 80. & P. 103... 308
Turnbull v. Appleton, 45 J. P. 469 439
Turner v. Hockey, 56 L. J., Q. B.

BOL cases 36
Turrell v. Crawley,18 L. Ty 0: 'B. 155 208
Tyers v. Rosedale, &c. Iron Co., L.

R., 8 Ex. 305; Ex. Ch., L. R., 10

Ex. 195; 44 L. J., Ex. 130; 33

Diy Pi, NES. DC yevenccesgctecgrey 192, 193

U.

Odell vy. Atherton, 7H.& N.172... 119
Underwood v. Nicholls, 25 L. J., C.

BeTO seense 29
Universal Stock Exchange: v. “Stevens,

66 L. T., N.S. 612; 40 W. RB. 494 412
Urquhart v. Macphersen, 3 App. Cas.

831 samesiieceasiversirnieesmaeascceyetens 153

Vv.

Valpy v. Oakeley, 16 Q. B. 941...... 192
Varney v. Hickman, 5 C. B. 281 ... 379,
399, 400
Venables v, Smith, 2 Q. B. D. 279;
46 L. J., Q. B. 470; 36 L. T., N.
8.509; 25 W. R. 584 314, 315
Vernon v. Keys, 12 East, 632; 11
RR. 499 1. wes 148,149
Veterinary College v. ‘Green, 57 J.P.
505 . 213
Veterinary Surgeons, “Royal. College
of, v. Robinson, [1892] ] a

5BT 61 L. J., Q. B. 146. 213
Vicars VY Wilcocks, 8 East, 3: 9 ‘BR.
R. 361.. ‘ sic SOT

Villiers 7. “Avey, 3 Times Ti. RB. 812 303

 

XXXV

PAGE
W

Wadhurst v. Damme, Cro. Jac. 44... 339
Waite rv. North-Eastern Railway

Con Bi Be HAY occ castaenesencess 299
Wakeman v, Robinson, 1 Bing. 213 301
Walker v. Holsington, 43 Vt. 608 76, 77
v. Matthews, 8 Q. B. D. 109;

a L, J., 2 B. 243 ; 46

L. T., N.S. 915; 30 W.

BR. 338, scumancencea: OO
— v. Mellor, i Q. ‘B. dis
is | Midland Rail. Co., 55 L.

T, NOS. 489. ‘
Wallace o, Woodgate, 4, C. & P. 975 209,

 

 

Waller v. Midland Great Western
Rail. Co., L. B., 4 Ir. 376 278

—— v. South-Eastern Rail. Co.,

32 L. J., Ex. 205 ............... 3822, 323
Walley v. "Holt, 35 L. T., N. 631 234
Wallingford 7. Mutual a 5

App. | Cas. 685; 50 L. J., Q. B.49;

43 L.7T., N.S. 258; 29 W. R. 81 435
Walmesley v Matthews, 3 Scott, N.

Resi BP sie ceansnnninn sainneuabengews 391, 395
Walpole v. Saunders, 7 D. & R. 130 382,

425
Walter v. Haynes, R. & M. 149 ...... 28
Ward v. General Omnibus Co., 42
Bedi, C... 255°; 28... 7:,
N. 5. $50-—Ex. Ch....... 318
v. Hobbs, + App. Cas. 13; 48
L.J., C. P.281; 40 L.T.,
N.S. 73 ; 27W-. R. 114...52,106,
199
Warlow v. Harrison, 1 EH. & E. 295 ;
29 L. J., Q. B, 1{—Iix. Ch. ...... 34,
42, 152, 153
Warner v. Willington, 25 L. J.,Ch.662 17
Warwicke v. Noakes, Peake, N. P.

98; 3 BR. R. 653.. shitter AO
Washburn v Guddihy, 8 Gray, "80... 76, 77
Waterhouse 7. Skinner, 2 B. & P. £47 176
Watkins v. Major, L. R, 10 C. P. 662;

44 L. J., M.C. 164; 383. L. T.,N.5.

352; OW. BLIGE cesses 346
Watson v. Ambergate, N ottingham

and Boston Rail. Co.,
15 Jur. $48 .0..........266, 777

—— vv, Denton,7C. & P.86...69,193,197
». Earl of Charlmont, 12

 

 

 

Oj Be SOP ncasitescocenerexe. TAD

v. Martin, 13 W. R. 14k ... 438

Watts v. ‘Ainsworth, LH.& C.83... 17
Wayde v. Lady Cart, 2D.&R. 256... 308
Weaver v Bush, OT. Ba 78 cccpescacess B47
Webb v. Bell, 1 Sid. 440 .......0.... B47

—— v. Fairmanner,3 M. & W. 173..176,184
c 2
XXXV1

PACE

Webb v. Fox, 7T. B. 397; 4 BR.
472 scssapsaiavcrinencoun 2B

— v. Great Western Rail. Co.,
26 W. RIL wo. = 267
Weir v. Barnett, 3 Ex. D. 32.......... 119

—— v. Bell, 3 Ex. D. 238; 47 L.J.,
Ex, 704; 38 L. T., N.S.
929; 26 W.R. 746—C. A. 145
Weller v. Deakins, 2C.& P.618 ... 381,
392, 393, 395

Wells v. Abrahams, L.R., 7 Q. B.557;
41 L. J.,Q. B. 306......... 59
—— v. Head, 4 C.& P. 568 .........

—— »v. Hopkins, 15 M. & W. 7...... 184
—— »v. Porter, 3 Scott, 141 ... 407
Welsh v. Lawrence, 2 Chit. 262 289

 

Wentworth v, Outhwaite, 10 M. & W.

452 . , aie 2
Westbrook ». . Griffith, Moor, 876. ‘200, 210
Weston v. Downes, Doug. Bice 159, 164,

170
Whatman v, Pearson, L. R., 3 C. P.

422 , wetwead. “OLD
Wheatley v . Patrick, 2 M. & W.650 248
Wheelton v. Hardisty, 27 L. J., Q. B.

241. . 139, 140
White v. “Beeton, 7 i. © N. “42; 30
L. J., Ex. 373.. ..109, 110

 

U Collier, M.&M. 126.0... 44

Garden, 20 L. J., C. P.166 154
—  v. Grert Western Rail. Co.,

26L. J.,C. P.158 ...... 263

—— v. Spettigue, 13 M. & W. 603 59
Whitehead v. Anderson, 9 M. & W.

518 . 27
Whitehurst ». ‘Fincher, 621, tT. N. 's.

433; 54 J. P. 565. . 459, 465
Whiteley v. Pepper, 2 Q. B. D. 276 ;
46 L. J., Q. B. 436 ; 86L.T., N.S

— 1

588 ; 25 WR. 607 vesccessccnsees 297
Wiggett ». Fox, 25 L. J., Ex. 188 ... 322,
323

Wilkes v. Atkinson, 1 Marsh. 412...167, 176
Wilkins v. Day, 12 Q. B. D.110; 49
L. T., N. 8. 399. st
Wilkinson % Evans, L, R., 1 C. ’P.
407 ; 35 L. J.,C.P.
224; 14 W, R.963 17
v. Godefroy, 9 A. & E.536 375
v. L’Eaugier, 2 Y. & C.

286

DOG Luicneanseunnscormncauacmapeamedeandnn 444
Willan v. Carter, N. P. 1853 «0.2... 70
Williams v. Barton, 3 Bing. 145...... 23

— v. Byrnes, 9 Jur, N. §.

363. esvenasecoad dy 21

— v. Evans, L. R, 1 Q. B.

352; 35 L. ‘akg ae B.
TL. ve 46
— Hide, Palm. 548 245

e

 

TABLE OF CASES.

PAGE

 

Williams v. Hill, Palm. 548 247
— wv Holmes, 22 L. J., Ex.
283 . - ..388, 206
—— v, Jordan, "6 ‘Ch. DD. 517
46 1. J., Ch. 681;
26 W. R. 230 Seal 21
— v. Lake, 29L.J.,Q.B.1...14, 21
— vv. Lloyd, Jones on Bail-
ments, 179 ............ 247
—— v. Mason, 28 L. T., N. 8.
232; 21 W. R. "386 . 150
—_ wv. Millington, 1 4H. Bla.
81; 2R.R.724 ...... 34, 37
— v. Paul, 6 Bing. 653 ...... 31
— vv. Richards, 3 C.& K. 82... 310
v. Trye, 23 L. T. 72.. 407
Williamson v, Allison, 2 East, 446... 144

v, Barton, 7 HL&N. 899 ;
31 L. J., Ex. 170;
10 W. RB. 321......... 44
Willoughby v. Horridge, 22 L. J.,

 

 

C. P. 90. we. 277
Wilson ». Brett, ll M&W. 1B ... 246
v. Cole, 36 L. T., N. 8. 402

— — & Merry, L. ie 1 i
326 . 298

Wiltshire v. Willett, ‘iL C 'B., NOS.
240; 31 L. JM. 6 8;5L 7,
N.S. 355; 10 W. RB. 445° 5 50
Wise v. Great Western Rail. Co., “I
H. & N. 63; 25 L. J., Ex. 258 ...
Wiseman v. Booker, 8 C. P. D. 184;
38 L. T., N. 8. 392; 26 W. R.
634 .
Wood v. “Leadbitter, 2B) Mw & W.
838 . iieheje ODT
— vr. Smith, 40.8 P45... 108, 111
Woodbury tv. Robins, 10 Cush,
(Mass.) 520.. 80
Woodin wv. Burford, 9 Cr & M. 391;
4 Tyrw, 264 ........ ..127, 181, 186
Woodroffe v. Farnham, 2 Vern, 291 421

259

348

Woodward’s case, 2 East, P. C. 653 224
Woodward, Je, 54 L. T., Si 8. 683... 228
Woolf v, Beard, 8 C, & P. 373 0... 288

Woulfe v. Horne, 2Q.. Bi D. 355 3 46
L. J., Q. B. 534; 36 L. .N. 8.
705 ; "95 W. R. 728 esisaniear 44

 

Worth ». ae R., 2 C, P. a 332
Wray v. Ellis, 1 E. x E. 276 ; 28
Tied 5 MO: 45. oscvaremesecincdiencencs, £79
Wren ¢. Pocock, 34 L. Ti, N.8 . 697 335
Wright v. Clarke, 34 J. P. GOT ee soa. 463
v. Dannah, 2 om 203; 11
R. R. 693 . 22, 38
-—— v, Freeman, 46 Ty ae et "P.
276 ; 0 L. Ts N.S.
134., ..37, 105

aoe ORE Johnson, v1 Sid. 440, 4 47. 174
TABLE OF CASES.

PAGE

Wright v. Leonard, 30 L. J., Ch. 365 155
v. London General Omnibus
Co., 2 Q. B. D. 271;

46 L.J., Q. B. 429; 36

L. T., N. S$. 590; 25

Wie Re OB sresticaaietes cece
—— v. Pearson, L. R., 4 Q. B.
582; 38 L.J., Q. B.312;

20 L. T., N. 8. 849; 17

W. R. 1099

Wrightup v. Chamberlain, 7 Scott,

325

334

198

 

XXXViL

Y.
PAGE
York v. Greenhaugh, 2 Lord Raym.
867 ; 1 Salk. 338...203, 221, 222

—— v. Grindstone, 1 Salk, 388...... 204
Youdan v. Crookes, 22 J. P. 287...... 429
Z.

Zuntz v. South-Eastern Rail. Co.,
Hd sO BN, 88 1a, QB,
209; 20 L. T., N.S. 873 . . 256
TABLE OF

 
     
   

 
  

 

STATUTES.

 

   
  
  
  
  

 

 
 

a
PAGE PAGE
12 Rich. 2,¢.6.. 353 2 Geo. 2,6. 28, 8. 9 secssccceeeeee B62, 427
11 Hen. 4,c.4 . 6 Geo. 2, ¢. 35 ....... %
11 Hen. 7, ¢. 13. 7&8 Geo. 2, ¢. 8..
02 Hem &G.7 sscne TS feo. 2, GES ccmpecns ‘ ‘
27 Hen. 8, c. 6, ss. 2. 3 431, 434, 436
Be Hetis By Oy TD cvanaee 4 d,s “se ee
62) 426, $28, 474
Si8i < .. £28, 474
$3 Hen..8,¢.5 i ee 428
Ci Dass SoU ces ckueavesasoteet 428
8. 13 Geo, 2,¢.19....... .362, 363, 427
S. a2 . 362
8. Soo x 362
Ss. s.4 . 362
8. od « 362
8. Sal! xs 362
s. 8), & amuvesaavwespecesanes 362
s. 8.9 .. 62, 425, 428
8.25 TT Ges 24-CiB akaexwnmenersinemranswstey
1 Edw. 6,6. Becceeeee 56,357 | 18 Geo. 2,¢. 34,8. 1........ 268, 426, 428
2&3 Phil. & M.c. B51, BOS s.2.. a 263, 428
e. 357 Bi T asanesmicaiaonandae 263
BHA, DD sisi 357 8:8 oss 263
8 Eliz.c. 8 ... So dl oes 263
31 Elie, 12 css... 25 Geo. 2, ¢. 3lles, 5, 6. 7. 473
43 Eliz. c. 6,8. 2 7 Geo. 3, ¢c. £8 aan S61
21 Jac. 1, v. 28.. 14 Geo. 3, ¢. 48 .. "363, 403, ‘£13, 414
16 Car.2,@7 « DE ALCO:Bs:C al sixisapecéa sértanisesty doneebuwanioay 364
25 Car. 2, c. 6.. 29 Geo. 3, c. 19. 8 .. ~=6«BB.
29 Car. 2,¢. 8,8. 4..... 42 Geo. 3,¢.119 ...... 364, 427, 431, 433
8. Bi. Mien steranie snigigsierouany 428, 429
; s.2 429, 432
Ch Ty Sidivmesoiseracny 29130,.219 8. Bs 429
S, os iia .  B2 s. 4 429
10 & 11 Will. 3, ¢. 17 ee "360, 361 5 430
s. 1. 426,427 | 46 Geo. 3, c. 148 364, 17, 430
Sy wie £27 | £9 Geo. 3,¢. 98. 364
SO wan. E27 ec. 109 361
9) ANTE; C; Bh adssuensmoesecsnene 361, 427 | 59 Geo, 3,¢. 52. 364
Cy LA csicasies 360, 364, 446, 447 1 Geo. f,c.4 .. 283
Ss ) leaidannesnegicscieue 360, 444 3 Geo. 4, ¢. 40... va 429)
ss. 2,5, 6,7, 8.9...... 361 ce. 41... 365, "356, 357
C19 veecceeceeee 359 c. 114 a 864
10 Anne, c. 26 we, B61 4 Geo, 4, c. 60 ...... 427
8 Geowl.e.2 ‘361, 427 s. £1. 430
9:61.15 C: 19) wavanwares yridiecinacern OOM, 427 s. 60. 430

 
TABLE OF STATUTES,

 
   
 

PAGE

5 Geo. 4, c. 83 ... 364, 369, 429, 438, 439

6 Geo. 4, c. 105 wissen . 3864

7 Geo. 4, c. 64, 8. 23 sae 419

7 & 8 Geo. 4, c. 29, s. 25. ie 2

s. 57. aan BD

c. 30, s. 16.. vcs BD

9 Geo, 4, ¢. 14, s. 8. se
Bl ist

ce. 61. 441, 430

11 Geo. 4 & 1 Will. “hk @, BBicsueaceue 266

1 & 2 Will. 4, c. 32, 8. 30 oer 346

8.31 ... 345

8.35... 345

C. BB. savccsia B61

   

2&8 WEL 4,6. TLhiccesecsncccess 872
3 & 4 Will. 4, c. 42, 8, 23... 174, 190, 193
5 &'6 Will. 4, v. 41... 359, 360, 364, 406,

407, 414, 417, 444,

 

 
  
   
 
   
   
  

445, 446

s.1.. 44d, 447

Bi Dicxes . 444

c. 50,8. 56... . 298

BTR ees os 425

8.78) acs 280, 306

c. 59,8. 3... ... 437

SF cay 212

C5, TOyi8i TE) swcieesives 61

6&7 Will. 4, c. 66...... 365, 427, “430, 431
2 & 8 Vict. c. 47, 8. 44 443
s. 47... vee 438

s. 54.. "216, "280, 283, 326

SiO Six kcerea 1283

ec. 71,s. 14.. 467, 468

s. 27. ase 160

s. 40.. . 60

3&4 Vict. c.5 wo... 362, 865
5 & 6 Vict. c. 47 ........ s 367
x5d, 8. 9as en B49

6 & 7 Vict. c. 86 we. 314, 325
7 & 8 Vict. ¢. 3... ¥ 366
COO arscwtiers wee 368

8 & 9 Vict. c.20,8.47 ... .. B49
s. 68 i ‘348, 350

8. 93 eae 267

CED iad idatsunoiactalstitarcasies 368

c.74 . 368, 427, 430

GiB sv anestaadasseavectecne 367

ec. 109..... 366, 373

Sih ihe -355, 366

Be Dh ince as 474

SiO eas 475

s. 4... 476

866: ssccve 476

eT wee . 476

Ba oa es ATT

s.10. 480

s.1ll. 480

S12 as 480

8.18! casaavcitend 425, 481

 

XXX1X

PAGE

8 9 Vict.c.109,s. 14 wc. 481
8. 15.. 363, 367,398, 444

BUT sess 419, 423

8.18 ne B68, 373, 376,

377, 380, 398, 399,

408, 404, 405, 406,

407, 410, 414, 416,

417, 424, 425, 431,

444

9.8 10 Vict: G28 cscecieriaiiassien BOT

368, 427, 431
ba By

    
  
   
   

6) OB vi cisies 324, 327, 328

Sil esas sanveversae 286, 324

Bi Qevess . 824

8) Baas .. 3824

10 & 11 Vict. c.14,8.13 . 50, 51
c. 89,5.28 . . 216

11 & 12 Vict. c. 29, 8. + 345
O43 36.5. 345

12 & 18 Vict. c. 92.... 212
Ss “217, 437

437

iDrsiaas 437

13 & 14 Vict. c. 61.......... vee 224
14 & 15 Vict. ¢. 99,8. 2.... “eg AVE
oe L006 1 , 53

16 & 17 Vict. c. 90....... 367
ce. 119 68, 407, 4142, 449

Beil xwens 368, 407, 443,

450, 451, 462, 463,
464, 465, 466, 469

$.2 ......368, 450, 464
8.3 aciess: 368, 369, 407,
443, 451, 454, 455,
456, 458, 460, 462,
468

ee 369, 458, 454,
467, 468

SB ales 407, 452, 458,
454, 468
1.373, 468
369, 468
we 470
470
470
469
470
470
470
470
fs wa. 369
17 & 18 Vict. G Blicccceeee (248, 255
8.7 ..4...255, 256, 257,

258, 259, 262, 263,

264, 267, 270, 275,

mn

   

SSA FD TA ED ICE SG. SI
2S. At
SCHRWNHO

WHE HHH:

Q77
ie BB i axe denuremennrO OG AEE
s.1.. 477
xl TABLE OF STATUTES.

  
  
 
  
 

PAGE

VG REG: VAC C388) 8.22 wceciese zaatade see's 477
a 477,478

8. ‘ 26, 477,478

8. diay ALD

8. 479

8. 479

8. 479

st 479

= 479

Ss. 479

c. 60, s. 212, 217

RRO orAges esinenon Ses 448

19 & 20 Vict. ¢. G4... 93, 354, 358
CEO Dis ccsctacdeamoncem ates 367

ez: 97,'8 169

20 & 21 Vict. c. 54,8 61
21 & 22 Vict. ¢. 102 368
22 & 23 Vict.c.17,8.1..... 479
23 & 24 Vict. c. 27,8. ¢ 443
c. 28. 407

24 & 25 Vict. c. 95 61
c. 96, 5. 3° 237

s. Bs Se ee

Bis Ll nupmssinanisessina 52

Shit ligaemcmenes! OL

s. BR, 419

s. 100. 59

v. 97,8. 40... 55

s.41.... 55

c. ee 8, - 7 253

25 & 26 Vict. c. 114, 347

 

26 & 27 Viet. c. 41, “201, 202, 208
203

  

27 & 28 Vict. c.95 1.0...

28 & 29 Vict. c. € 331
BB4
315

30 & 31 Vict. c. 3F waned
c. 134, 5. 23 440
SL i S2 Vick © 22 —ncswisnw 438
ec. 119, s. i oa

s. 16

  

32 & 33 Vict.

33 & 34 Vict.
34 & 35 Vict.

35 & 36 Vict. c. 94,8.17... 440, 441, 442,
452

5.9 aaa teh

8.73 ose eee £80, 481

 

 

PAGE
36 & 37 Vict.c. 38... B69, 489
¢. 66.8. 2 subs (6). B81

s. 47. seve 470
BT Victies Wis iacinimescadcce "369, 468, 470,
471

   
 

C2 1G, BTL. saccasnnseasaeseie BB, 367

Ss. wee 367

37 & 38 Vict. c. 46 ..440, 481
c. 6 155

BO. Viet C. LB iwsaeirienusvscne ee
41 & 42 Vict. c. = é OS, 210, 211
42 & 43 Vict. c. 369
370

c. 429

451

451

43 & 44 Vict. ¢. ve O22
c. 344, 345

. B45

44 & 45 Vict. c. 212
212

212

212

s. oe wee 213

45 & 46 Vict. c. 61, ss. 29, 30, ‘90. son 4S
¢c. 156

 

, sub-s, (2)...

46 & 47 Vict. ¢. 61,5. 43... 229

 

47 & 48 Vict. c.
51 & 52 Vict. ¢.

54 & 55 Vict. c.
55 Vict. u 4

fe tthe
55 & 56 Vict. c. 19

 

 

 

56 & 57 Viek « i oe 1
eds sub-s, Con 1
(2) vss 2
(3).. 2
(4)... 2
5 iy 2
‘ 6. ‘TR, 30, 38,
175, 178, 183
sub-s, (1) .. 5
8.5 egy
s.0..
Seal ae
6,10 ,
6. dey.
8.12. ..104, 105
Bl xyes wes 105
s.14 ... 106, 107, 115
56 & 57 Vict.. 71,s.

TABLE OF
PAGE
18, rr. 1,2... 24
nd 3, 164

  

$3.20! Ginwscerseaenes) 20
8. 22, sub-s,(2)... 57
8.28 oes D5, 28
8.39 s+. 26, 27, 29
s. 41 eseneiie» S2IC
8.44... 27
BAD? iccicacacwues QT
s.48, sub-s. (1)... 27

)... 27
s. 49 se 28

a

%

(2)...
. 50, sub-s. (1)... 167
(2)

sub-s. (1)... 167

(3)... 192
51, sub-s. (1)...

 

STATUTES.

xli

PAGE

56 & 57 Vict.c. 71,8. 51, sub-s. (2)... 192

(3)... 192

8LB2 Maicetccencaecos ~ 069
8.63 ............161, 162
sub-s. (1)... 185
(2)... 198

(3)... 193

BA ese eeeeL05, 191
s. 58, sub-s. (1)... 42
(2)... 42
(3)... 42,
44, 45
(4)...44, 45
5

n

82160) sicciorisctnsnes
s, 62, sub-s. (1)...2, 108

57 & 58 Vict. ¢. 57, s. 22...... 81, 199, 275,

335
INTRODUCTION.

sop

Ir has been found most convenient to arrange under three
heads the various subjects treated of in this work.

Ist. Contracts concerning Horses, §e., which, including
the Bargain and Sale of Chattels, comprises the law of
buying, sellmg, and exchanging, the doctrine of un-
soundness and vice, the law of warranty and false repre-
sentation; the privileges and liabilities of innkeepers,
livery-stable keepers, farriers, trainers, &c., and hiring,
borrowing and carrying horses.

2nd. Negligence in the use of Horses, &c., which includes
the criminal and civil liabilities incurred through negligent
driving, or keeping ferocious and vicious animals, and the
liabilities of parties in hunting or trespassing on the lands
of another.

drd. Racing, Wagers, and Gaming, which gives a sketch
of their history, rise and progress in this country, and lays
down the law on these subjects in connection with the
numerous and important alterations made by the ‘‘ Act to
amend the Law concerning Games and Wagers” (a), the
“Act for Legalizing Art Unions” (%), and the recent
“ Act for the Suppression of Betting Houses ”’ (¢).

One great peculiarity attending a portion of this work,
is the difficult question of warranty in connection with
unsoundness. Because at what precise point soundness
ends and unsoundness begins has always been a subject
of dispute both in and out of the veterinary profession.
Therefore, when a horse warranted sound turns out un-

(a) 8 & 9 Vict. ¢. 109. (b) 9 & 10 Vict. c. 48.
(ec) 16 & 17 Vict. c. 119.

Arrangement
of the subject.

Giving a
warranty.
xliv

Warranty
should seldom
be given.

INTRODUCTION.

sound, great difficulties must frequently arise from the
nature of the case. For a warranty is in the nature of
an Insurance, and when a man warrants a horse sound
he insures that of which he can know very little. It is
not like the warranty of manufactured goods, where a
man calculates, from the skill and materials employed, the
exact amount of responsibility he can take upon himself.
When a man warrants a horse he does it at his own risk,
and of course that risk is very much greater, when he does
it upon his own opinion, than when he warrants after the
horse has been pronounced sound by men of veterinary
skill. So that if an action is brought on an alleged breach
of warranty, he is, in the former case, almost entirely in
the hands of the veterinary evidence produced by the pur-
chaser; in the latter case he has men of skill to prove the
exact state of the horse at the time of sale. For instance,
should the purchaser produce veterinary evidence to prove
that the horse has a bone spavin, and that it must have
existed at the time of sale, the vendor in the latter case
would be able to prove by actual examination that no such
spavin did then exist, and would therefore have a very
strong case to go to a jury.

But it appears that soundness is a subject on which,
from the nature of the case, a warranty should very
seldom be given: for there seems no reason why a person
who buys a horse should not act as he would in any other
transaction where there is risk. For instance, a man
buying a house does not merely examine it himself, and
then, because he likes it, buy it with a warranty; but he
takes his surveyor with him, who points out all its defects,
and then he buys it or not according to the opinion he may
form of its value after these have been taken into consi-
deration.

And in all cases where a risk is run and an insurance
effected, there are regular rules laid down by which such
transactions are governed. For where a person insures
his life, he submits to a regular medical investigation,
and no company would act in so unbusinesslike a manner
INTRODUCTION.

as merely to take a person’s own warranty that he is
sound in health and constitution, and so be put to the
proof, in case of his death, that he was not so at the time
he gave the warrauty.

The best rule for a man therefore to follow in selling
a horse is this: Where the horse is of no great value,
to refuse a warranty altogether, and such a horse is best
sold by auction. Where the horse is of great value, if
sound, but that appears doubtful, then to let the pur-
chaser be satisfied by a veterinary examination, and so
take the responsibility upon himself. Where, however,
the seller is confident that the horse is perfectly sound,
and that with a warranty he would fetch a much larger
price than without one, he should have him cxamined
and certified as sound, &c., by one or two veterinary
surgeons of respectability and experience, and then, know-
ing on what ground he goes, he may take the risk of
warranting him sound.

The vexation and difficulty experienced in horse-dealing
arises, In a great measure, from the loose manner in which
such transactions are conducted, and from the thought-
less manner in which people give warranties; and we
generally find that the smaller a man’s knowledge may
be with regard to horses, the more ready he is to war-
rant, little knowing the responsibility he is thus fixing upon
himself.

A dealer, who from the nature of his business must be
constantly buying and selling horses, has an evident
advantage over the persons with whom he deals, who
probably do not buy or sell horses half a dozen times in
a year, and very few of whom can form a reasonable
opinion as to a horse’s value. But the dealer, to say
the least, is a pretty good judge, and, being well ac-
quainted with the routine of his business, may, generally,
go on in as satisfactory and reputable a manner as any
other tradesman, so long as he keeps honest. The fre-
quent rascality in horsedealing transactions arises from
parties n.aking improper use of that superior knowledze

xlv

When to give
a warranty.

The cause of
dithicalty in
horse-dealing.

The cause of
rascality in
horse-dealing.
xlvi INTRODUCTION.

which experience alone can supply. Because purchasing
a horse is a very different affair from buying a manu-
factured article; for, in the latter case, there are certain
trade prices, and a corresponding quality of goods, which
every man expects, and of which any ordinary man
can judge; and, therefore, as each party has in gene-
ral a sufficiently competent knowledge, very few disputes
arise.

Veterinary When a horse is free from hereditary disease, is in the

certificates. —nossession of his natural and constitutional health, and has
as much bodily perfection as is consistent with his natural
formation, a veterinary surgeon may safely certify him
to be sound. But as there is in most horses some shght
alteration in structure, either from disease, accident, or
work, a veterinary surgeon in giving his certificate had
much better describe the actual state of the horse, and
the probable consequences, without mentioning soundness or
unsoundness at all, and so let the purchaser buy him or not
as he may be advised. Because in such a case a straight-
forward statement would be made, and a man in the
veterinary profession would not be called upon in an off-
hand manner to decide questions which are of the greatest
nicety, being full of uncertainty, and upon which no con-
clusive decision can safely be arrived at. For we find the
greater the difficulty, the more likely is a decision (if come
to at all) to be the result of a slight preponderance of one
over each of many conflicting opinions.

Veterinary We find that a man will sometimes warrant a horse in

opinion. consequence of a veterinary opinion given in an off-hand
manner, either without a sufficient examination of the
horse having been made, or sometimes in the face of actual
disease ; for the giving a warranty seems to be considered
quite a trifling matter. Thus, in the case of Hail vy.
Rogerson, triel at the Newcastle Spring Assizes, 1847,
it appeared that a witness, who was a veterinary surgeon,
had taken off the horse’s shoes, and examined his feet,
when he found a slight convexity of sole. The owner then
asked him if he would be justified in warranting the horse
INTRODUCTION.

as it had been warranted to him; the witness asked him if
he was satisfied the horse went sound; he replied, “ Per-
fectly so:” he then said he was justified. On cross-
examination, the witness said, “I pointed out a slight
disease in the sole, but thought he would have been
Justified in warranting him; if I had taken the precaution
to see him go, things might have been different.”” So that
a veterinary surgeon finding that a horse has a disease in
the sole, and without taking the precaution to see him go,
tells the owner he is justified in warranting. Now the use
of the word justified shows that neither of the parties fully
knew the amount of liability incurred by giving a warranty,
and it seems as if they had considered it rather an affair of
conscience or honour than of legal responsibility.

That the veterinary profession feel the greatest difficulty
in dealing with the question of unsoundness when called
upon for a certificate on that point, will appear from part
of an article on “Soundness as opposed to Lameness,” by
Mr. Percival, M.R.C.S., editor of the Veterinarian; he
writes, “‘ Reluctantly as we enter on this difficult and
much debated question, we feel it our duty to make some
observations on the subject, though these observations will
be rather of a general than of a particular nature, and
have especial reference to soundness, regarded as the
converse of, or opposite, state to lameness. No person buys
or sells a horse without feeling some concern as to the
soundness of the animal; the purchaser is apprehensive
lest his new horse should from any cause turn out unser-
viceable or unequal to that, for the performance of which
he has bought him; the vendor is apprehensive, either lest
the animal, in other hands, should not prove that sound
and effective servant he conceived or represented him to be,
or lest some unrepresented or concealed fault or defect he is
aware the animal possesses may now, in his new master’s
hands, be brought to light.”

“Soundness, as opposed to actual or decided lameness
(or as synonymous with good health), is a state too well
understood to need any definition or description; when

xlvi

Difficulties
felt by the
veterinary
profession.
xlviii

Conflicting
certificates as
to soundness.

INTRODUCTION.

we come, however, to draw a line between soundness and
lameness in their distinguished form—to mark the point
at which one ends and the other begins—we meet a diffi-
culty, and this difficulty increases when we find ourselves
called on to include, under our denomination of unsound-
ness, that which is likely or has a tendency to bring forth
lameness. It will be requisite, therefore, for us to say,
not simply that every /ame horse is unsound, but to add
these words, or who has that about him which is likely on
work to render him lame. This will, it is true, open the
door to difference of opinion and equivocation. There
may, as we have seen, spring up two opinions concerning
the presence even of lameness. There will in more cases
be two opinions concerning that which is accounted to
be the precursor of lameness, or may have a tendency at
some period proximate or remote to produce it; all which
differences are best got rid of by reference to the ablest
veterinary advice. There will be less diversity of opinion
among professional men than among others, and the more
skilful and respectable the professional persons are, the
greater will be the probability of a happy unison in their
views of the case” (a).

Mr. Godwin, M.R.C.S., Veterinary Surgeon to the
Queen, makes the following sensible remarks on the
certificates given by veterinary surgeons to the vendors
and purchasers of horses. He says, “It is to be re-
gretted that the members of the veterinary profession
have not been taught to adopt some rules for rendering
the certificates they are required to give upon examining
horses as to soundness, at least somewhat similar in the
construction and expression of their opinions, so as to
render them more intelligible to the persons who have to
pay for them. I am quite aware of the impossibility of
attempting to reduce professional opinions to one common
standard; but I think that our leading practitioners might
meet together, and agree upon some general principles for

(a) The Veterinarian, vol. xviii. p. 366.
INTRODUCTION.

their guidance, that would make their certificates less
liable to the censure and ridicule they both merit and
incur. The occurrence is by no means uncommon for a
buyer to send a horse to be examined by a vetermary
surgeon, and not feeling satisfied with the opinion he
obtains, to send him to another; and then comparing the
certificates of the two, and finding them diametrically
opposite in their statements, he finally trusts himself to the
warranty of the dealer, purchases the horse, and at the end
of six months has had to congratulate himself upon the
possession of a sound animal, and the escape he has had in
avoiding two unsound certificates” (a).

(a) The Veterinarian, vol. xix. p. 88.

xlix
THE LAW OF HORSES.

PART I.
CONTRACTS CONCERNING HORSES, &c.

 

CHAPTER I.

BUYING, SELLING AND EXCHANGING; THE REQUISITES OF
THE STATUTE OF FRAUDS, DELIVERY AND PAYMENT,
AND THE LAW AS TO SUNDAY DEALING.

Bargain, Sale and Exchange.

A BARGAIN or mutual agreement or understanding as to
terms between the parties, is implied in every contract for
a sale or exchange (a).

A sale is a transfer of goods for money, and an exchange
is a transfer of goods for other goods by way of barter, and
in either case the same rules of law are, generally speaking,
prescribed for regulating the transaction (6).

Previously to the Sale of Goods Act, 1893 (56 & 57 Vict.
ce. 71), a contract of sale was termed either an “ executed ”
or “executory” contract according to whether its effect was
to transfer the property or right of possession in its subject-
matter, or merely to agree to do so (c). But by section 1 of
that Act the expressions “sale” and “agreement to sell”
are substituted for those terms. The enactment in question
is as follows :—

(1) “A contract of sale is a contract whereby the seller
transfers or agrees to transfer the property in goods to the
buyer for a money consideration, called the price. There
may be a contract of sale between one part-owner and
another.

(a) See 2 Steph. Com. 120. 430.

(b) 2 Bl. Com. 446, 447 ; Anon., (ce) See 2 Steph. Com. 112.
3 Salk. 157; Chit. Contr. 12th ed.
ae

“ 0. B

Bargain.

Sale and ex-
change.

Sale and
agreement to
sell.
Transfer of
property by
gift.

Entire con-
tract.

Severable
contract.

Verbal
contract.

Written
contract.

Right of
rescission.

CONTRACTS CONCERNING HORSES, ETC.

(2) “A contract of sale may be absolute or conditional.

(3) “Where under a contract of sale the property in the
goods is transferred from the seller to the buyer the contract
is called a sale; but where the transfer of the property in
the goods is to take place at a future time or subject to
some condition thereafter to be fulfilled, the contract is
called an agreement to sell. :

(4) “An agreement to sell becomes a sale when the time
elapses or the conditions are fulfilled subject to which the
property in the goods is to be transferred.” ;

An executed contract of sale was also called “a bargain
and sale,” and by s. 62 of Act of 1893 (the Interpretation
Clause), “sale”? includes a bargain and sale as well as a
sale and delivery.

In order to transfer property by gift, there must either
be a deed or instrument of gift, or there must be an actual
delivery of the thing to the donee. So, where the plaintitt
claimed two colts under a verbal gift made to him by his
father twelve months before his death, which however
remained in his father’s possession until his death, it was
held, that the property in them did not pass to the son (ce).

If a person buy a horse and a pony together for 1002,
the contract is entire, as there is no means of determining
the price of each (d).

But if he should purchase them both together, agreeing
to pay 30/. for the pony, and 70/ for the horse, the con-
tract would be severable; and if the seller’s title to the
pony should fail, the buyer would be obliged to keep and
pay for the horse (d).

‘Where a bargain is made by word of mouth, all that
passes may sometimes be taken together as forming parcel
of the contract, though not always, because matter talked
of at the commencement of a bargain may be excluded by
the language used at its termination (e).

But if the contract be in the end reduced into writing,
nothing which is not found in the writing can be considered
as part of the contract (e).

Where one of the parties has the option of completing

ce) Irons v. Smallpicce, 2 Barv. & (2) See Miner vy. Bradley, 22

Ald. 551; 21 R. R. 395. Seealso Pick. Rep. 459 (Amer.); Johnson v.
Cochrane v. Moore, 25 Q. B.D. 57; = Johnson, 3 B. & P. 162; 6 R. R.
59 L.J.,Q. B.377; 63 L. T., N.S. 736; Story on Sales, 164, 190.
153; 88 W. R. 588—C. A. And ef. (e) Kain v. Old, 2 B. & C. 634,
Kilpin v. Ratley, [1892] 1 Q. B. See also Sale of Goods Act, 1893
582; 66 L. T.N.8.797;40 W. R. 8. 3. ?
479.
BARGAIN, SALE AND EXCHANGE.

a contract or agreement at a particular day, the other
party has a right of rescission at any time before the ratifi-
cation by the first (f). Thus, where A. proposed to ex-
change horses with B. and give him a specific sum as
difference, and B. reserved to himself the privilege of
determining upon it by a certain day, and before that
day arrived, A. gave notice to B. that he would not confirm
the proposed contract, it was held that no action would lie
to recover the difference agreed to be paid by A. (9).

Where an arrangement is made that the person pro-
posing to purchase shall have the right of trial during a
certain time, the other party cannot conclude the negotia-
tion until the time allotted has elapsed. Thus A., having
a horse to sell, agreed to let B. have him for 30 guineas, if
he liked him, and that he should take him a month upon
trial. B. accordingly took him, and kept him about a fort-
night, and then told A. he liked the horse but not the
price. A. desired him, if he did not like the price, to
return the horse, but B. kept him ten days longer, and then
returned him. A., however, refused to receive him, and
brought an action on the contract for 30 guineas. It was
held by the Court of Common Pleas that he could not
maintain such action (2). So where a horse was sold by
A. to B. upon condition that it should be taken away by
the latter and tried by him for eight days, and returned at
the end of that period if he did not think it suitable for his
purposes ; and the horse died on the third day after it was
placed in B.’s stable, without default of either party ; it was
held, by Denman, J., that A. could not maintain an action
for the price, as for goods sold and delivered (7).

Where a horse is bought for any price or consideration
under the value of 10/., and there is not an actual payment
and delivery at the time of sale, and the contract is to be
performed within a year, the bargain may be bound by any
of the following five methods (7); 1st. An agreement to
deliver the horse on a certain day, a day also being agreed
upon for payment of the price; and, in default, the buyer
may have an action for the horse, or the seller for his

(f) Payne v. Cave, 3 T. BR. 148; W. R. 139; 44 J. P. 651. As

1R. R. 679; Story on Sales, 99. to when the property in goods
(9) Eskridge v. Glover, 5 Stew. & delivered on approval, or on ‘‘sale

Port. (Amer.) 264. or return,” or other similar terms,
(h) Ellis v. Mortimer, 1 N. R. passes to the buyer, see further the

257. provisions of s. 18, r. 4 of the Sale
(t) Elphick v. Barnes, 5 C. P. of Goods Act, 1893.

D. 321; 49 L. J., 0. P. 698; 29 (j) Sheppard’s Touch. 225.

B 2

Right of trial.

Buying a
horse under
102.
Where neither
party can be
off.

Striking a
bargain.

Contract not
to be per-
formed within
a year.

Statute of
Frauds, s. 4.

CONTRACTS CONCERNING HORSES, ETC.

money ; 2ndly. The payment of the whole price, and then
if the seller do not deliver the horse, the buyer may sue
him, and recover it; 8rdly. Part payment of the purchase-
money, and then the buyer may sue for and recover the
horse, or the seller may sue for the residue of the price ;
4thly. An earnest (i) may be given, and even the smallest
sum is sufficient, and in such case the remedies are reciprocal ;
5thly. An actual delivery of the horse, and even if there
be none of the purchase-money paid, no earnest given, or
no day set for payment, the seller may at any time sue the
buyer and recover his money.

Where the price is under 10/., and the seller states what
he asks for his horse, and a buyer says he will give it, the
bargain is struck, and neither of them are at liberty to be
off, provided that immediate possession of the horse or the
money be tendered by either side (/).

Anciently, among all the northern nations, shaking of
hands was held necessary to bind a bargain, a custom which
we still retain in many verbal contracts. A sale thus made
was called a hand sale, “ venditio per mutuam manuum com-
plecionem” (m). This method of striking a bargain is very
much practised in the north of England at the present day,
both in horsedealing and other transactions; and whatever
efficacy it may be supposed to have from custom in small
dealings, it certainly does not bind the bargain where the
horse 1s worth 102. or upwards, or where the agreement is
not to be performed within a year.

Where the contract for the sale or exchange of a horse
is not to be performed within a year, the agreement itself
or some memorandum or note of it must be in writing, and
be signed by the party to be charged or his agent, within
the 4th section of the Statute of Frauds (7).

The words of the 4th section of the Statute of Frauds
applicable to a contract of this description are as follows:
“And be it enacted, that no action (0) shall be brought
upon any agreement that is not to be performed within
the space of one year from the making thereof, unless the
agreement upon which such action shall be brought, or
some memorandum or note thereof, shall be in writing,
and signed by the party to be charged therewith, or some
other person thereunto by him lawfully authorized.”

(&) Earnest, post, p. 12. (n) 29 Car. 2, ¢. 3.

(2) Cooper vy. Andrews, Hob. 41 ; (0) Lerous vy. Brown, 16 Jur.
Noy’s Max. c. 42; 2 Bla. Com. 447. 1021.

(m) 2 Bla. Com, 448.
BARGAIN, SALE AND EXCHANGE. 5

The 17th section of the Statute of Frauds was the founda- Buying a
tion of the law governing the transfer of goods and chattels atte
worth 10/. or upwards, and among other things the buying roo
and selling of horses of that value.

That statute was further extended by 9 Geo. 4, c. 14, Sale of Goods
s. 7, commonly called Lord Tenterden’s Act. But those A¢t 1893,
enactments were repealed by section 60 of the Sale of Goods * *
Act, 1893 (56 & 57 Vict. c. 71), and such contracts are
now governed by the provisions of section 4 of that Act,
sub-sections (1) and (2) of which are substantially a repro-
duction of section 17 of the Statute of Frauds and section 7
of Lord Tenterden’s Act respectively.

The words of sub-sections (1) and (2) of the 4th section of
the Sale of Goods Act, 1898, are as follows:

(1) “A contract for the sale of any goods of the value
of 107. or upwards shall not be enforceable by action
unless the buyer shall accept part of the goods so sold,
and actually receive the same, or give something in earnest
to bind the contract, or in part payment, or unless some
note or memorandum in writing of the contract, be made
and signed by the party to be charged or his agent in that
behalf.

(2) “The provisions of this section apply to every such
contract, notwithstanding that the goods may be intended
to be delivered at some future time, or may not at the
time of such contract be actually made, procured, or pro-
vided, or fit or ready for delivery, or some act may be
requisite for the making or completing thereof, or rendering
the same fit for delivery.”

Where an action was brought on a verbal contract, under Contract
which the plaintiff agreed to sell to the defendant a certain oe ane
mare and foal, and at his own expense to keep this and .
another mare and foal which belonged to the defendant
for a certain fixed time, and the defendant agreed to
purchase the first-named mare and foal and to fetch them
away at the end of the term thus fixed, and to pay the
plaintiff the sum of 30/4; it was held, that this contract
was one within section 17 of the Statute of Frauds as
extended by section 7 of Lord Tenterden’s Act, and which
could not therefore be enforced, inasmuch as though it
did not very distinctly appear on the face of the contract
that the plaintiff's mare and foal were worth more than
107., yet that they might and would have been shown by
parol evidence to be so, and that there could be no doubt
of the fact. It was also held, that this contract was not
Requisites of

a sale of goods
of more value
than 102.

In what they
consist.

General rule.

CONTRACTS CONCERNING HORSES, ETC.

less within the statute because something else, which was
merely ancillary to its principal subject-matter, and to
which the 17th'section of the Statute of Frauds did not
apply, was included in it, as the contract was an entire one
and the price was indivisible (p).

Therefore to make the sale of a horse at 107. or upwards
valid under the 4th section of the Sale of Goods Act, 1893,
the buyer must either actually accept and receive it, or give
something in earnest to bind the bargain, or something in
part payment; or the parties to be charged must either
themselves or by their agents make and sign some note or
memorandum in writing of the bargain.

We shall consider—

Ist. The acceptance and receipt.

2nd. The earnest and part payment.

38rd. The note or memorandum in writing.
4th. The signature by the party to be charged.
5th. The signature by an agent.

The Acceptance and Receipt.

To satisfy the statute there must be an acceptance and a
receipt of the goods, and the acceptance must be of the
goods “so sold,” for the enjoyment of something merely
engrafted upon the principal subject-matter of the contract
will not satisfy the statute(p). The acceptance must be
with the intention of taking possession as owner. And the
receipt implies delivery, cither actual or constructive (q).

By s. 4, sub-s. (3), of the Sale of Goods Act, 1893,
“there is an acceptance of goods within the meaning of this
section when the buyer does any act in relation to the goods
which recognises a pre-existing contract of sale whether
there be an acceptance in performance of the contract or
not.”

There is always an acceptance and receipt by the pur-
chaser when the vendor has parted with his lien, because,
as was laid down by Mr. Justice Holroyd, “upon a sale
of specitic goods for a specific price, by parting with the
possession the seller parts with his lien. The statute
contemplates such a parting with the possession, and
therefore, so long as the seller preserves his control over
the goods, so as to retain his lien, he prevents the vendee

i re a vy. Reeve, 25 L. J., oe 394; Holmes v. Hos-
. P. 257. Bins. x. 753.
(q) See per Parke, B., Saunders v. ;
THE ACCEPTANCE AND RECEIPT.

from accepting and receiving them as his own within the
meaning of the statute” (r).

In the case of Saunders v. Topp (s), the learned judges
doubted whether in any case there could be an acceptance
and receipt before actual delivery. But recent cases show
that in the case of specific goods the acceptance may
precede the actual delivery, and need not be contem-
poraneous or subsequent to it (¢). For masmuch as the
vendor may lose his lien on the goods without losing
the personal possession of them, so may a vendee have
accepted and have actually received them within the
meaning of the statute without having the personal pos-
session of them; eg., in a case in which it is agreed
between the vendor and the vendee that the possession
shall thenceforth be kept, not as vendor, but as bailee
for the purchaser, the lien of the vendor is gone, and the
goods are no longer in his possession as unpaid vendor (w).

The vendor may at any time disaffirm a sale of goods
of the value of 10/. or upwards, if only contracted to be
made by parol, before the vendee does anything to bind
the bargain; if, however, the buyer has “taken to” the
goods, before the contract is disaffirmed, it will, as it would
seem, bind the bargain in favour of the buyer as well as
the seller (x).

Where however an article is selected by the buyer, very
slight evidence of its acceptance, when received, would be
suticient to show an acceptance, coupled with a receipt.
As where the defendant verbally agreed to buy some sheep
which he had selected from the plaintiff’s flock, and
directed them to be sent to his field, which was accordingly
done. Two days afterwards he sent his man to remove
them from the field to his farm, which was some miles
distant, and on their arrival he counted them over and
said, ‘It is all right.” It was held that this was evidence
tor the jury of his acceptance of the sheep so as to satisfy
the Statute of Frauds, notwithstanding he afterwards re-
pudiated the purchase, and sent the sheep back to the
plaintiff (vy). And Mr. Baron Alderson remarked on the
case as follows: “The previous selection of the sheep is

(r) Baidey v. Parker,2 B. & C.  Q. B. 261.

44; 8.0.3 D. & R. 220; Cusack v. (u) Cusack v. Robinson, 30 L. J.,
Robinson, 30 L. J., Q. B. 261. Q. B. 261
8) 1 Exch, 394. (x) Taylor v. Wakefield, 6 E. &
8 Morton v. Tibbett, 15 Q. B.  B. 768.

428; Cusack vy. Robinson, 30 L. J., (y) Saunders v. Topp, 4 Ex. 390.

Acceptance
before de-
livery.

When vendor
may disaffirin
sale.

Where an
article is
selected.
Question for
the jury.

Constructive
possession by
vendee.

Seller may
become agent
for buyer.

CONTRACTS CONCERNING HORSES, ETC,

very material, to show the nature of the acceptance when
the sheep were received. The defendant says, ‘It is all
right.’ If he had never seen the sheep, and there had
been no previous acceptance, his saying ‘It is all right’
would have had no effect; but when he had _ previously
examined and selected the sheep, it was for the jury to
say whether he did not mean, ‘These are the sheep which
I selected.’ Suppose, in the case of a remarkable animal,
for instance, a horse with peculiar spots, the vendee had
said, ‘ All right,’ there could be no doubt he would mean
‘ This is the horse I bought.’ ” (s).

It is a question for the jury whether or not there has
been an acceptance and actual receipt (a).

It has been stated above (0) that there may be an ac-
ceptance and receipt by the vendee before the goods are
actually delivered by the vendor. Thus, after the defen-
dant had verbally agreed to purchase of the plaintiff a
horse, but before there had been any actual delivery
plaintiff requested defendant to lend it to him to take
certain journeys. To this the defendant assented, and the
horse remained with plaintiff for a fortnight, when it was
sent to the defendant, who, however, refused to receive it:
the jury found that the bargain for the purchase of the
horse was complete before the proposal to borrow it was
made, and that the defendant, as owner of the horse, gave
plaintiff permission to keep it. It was thereupon held that
there was evidence of an acceptance and receipt of the
horse to satisfy the Statute of Frauds (c). But the construc-
tive possession by the vendee must be clearly such, as that
by it the vendor would lose his lien on the goods (d).

In all cases of this description there may be such a
change of character in the seller as to make him the agent
of the buyer, so that the buyer may treat the possession
of the seller as his own (e) ; and the question for the jury
will be, whether the seller held the subject-matter of the
sale as owner, or merely as keeper for the buyer. Thus,
when A. agreed to purchase of B. a carriage then standing
in B.’s shop, A. at the same time desiring that certain
alterations might be made on it, the alterations having

(2) Saunders v. Topp, 4 Ex. 395. (0) See ante, p. 7.
See also Simmonds vy. Humble, 13 (e) Marvin v. Wallace, 6 B. & B.
6

C. B., N. 8. 258. 726; 2 Jur., N.S. 689.
(a) Bushell vy. Wheeler, 15 Q. B. (@) Holmes v. Hoskins, 9 Ex. 753.
442; Jordan v. Norton, 4 M. & W. (e) Castle v. Sworder, 30 L. J.,

160, Ex. 310.
THE ACCEPTANCE AND RECEIPT.

been made, the carriage was, at A.’s request, placed in the
back shop. <A. called at the shop on a Saturday, and
requested B. to hire a horse and a man for him, and to send
the carriage to his house on the following day, in order that
he might take a drive in it. A. had previously intimated
his intention to take the carriage out a few times, in order
that, as he was going to take it abroad, it might pass the
custom-house as a second-hand carriage. The carriage was
accordingly sent to and used by A. on the Sunday, A.
paying for the hire of the horse and man. A. afterwards
refused to take or pay for the carriage. It was held that
there was a sufficient acceptance and receipt of the carriage
by A. before the Sunday, within the 17th section of the
Statute of Frauds (/).

In some cases great difficulty arises in deciding whether
there has been such an acceptance and receipt as consti-
tutes a constructive delivery under the statute ; and we shall
see by the following cases that some very nice distinctions
have been drawn: Elmore v. Stone (g) is a leading case on
the subject, and, though its authority was doubted by Mr.
Justice Bayley in Howe v. Palmer (i), it will be seen that
it may be distinguished from that and all the following
cases.

In Elmore v. Stone (g) an action was brought for the
price of two horses, and a question arose whether there had
been a delivery of them under the Statute of Frauds. The
plaintiff was a livery-stable keeper and horse dealer. He asked
180 guineas for two horses, which the defendant at first
refused to give, but afterwards sent word that “the horses
were his, but that as he had neither servant nor stable the
plaintiff must keep them at livery for him ;” the plaintiff
assented, and removed them out of the sale stable into
another. The defendant afterwards refused to take them,
and set up for his defence the 17th section of the Statute
of Frauds. It was there held that if a man bargains for
the purchase of goods, and desires the vendor to keep them
in his possession for an especial purpose for the vendee, and
the vendor accepts the order, it isa sufficient delivery of the
goods within the Statute of Frauds, and that it is no objec-
tion to a constructive delivery of goods that it is made by
words parcel of the parol contract of sale ; and Chief Justice

(f) Beaumont. Brengeri,5C.B. Gough, 38 L. T., N. 8. 204—C. A.
301. (h) Howe v. Palmer, 3 B. & Ald.
(g) Elmore v. Stone, 1 Taunt. 458; 324.
10 R. R. 578. See also Middle v.

What has
been held
sufficient as
an acceptance
and receipt.
10

What has
been held
insufiicient.

CONTRACTS CONCERNING HORSES, ETC.

Mansfield said, “A common case is that of a sale of goods
at_ a wharf or a warehouse, where the usual practice is to
deliver the key of a warehouse or a note to the wharfinger,
who in consequence makes a new entry of the goods in the
name of the vendee, although no transfer of the local
situation or actual possession takes place. After the de-
fendant in this case had said that the horses must stand at
livery, and the plaintiff had accepted the order, it made no
difference whether they stood at livery in the vendor’s
stable, or whether they had been taken away, and put in
some other stable. The plaintiff possessed them from that
time, not as owner of the horses, but as any other livery-
stable keeper might have them to keep. Under many
events it might appear hard if the plaintiff should not
continue to have a lien upon the horses which were in his
own possession, so long as the price remained unpaid; but
it was for him to consider that before he made his agree-
ment. After he had assented to keep the horses at livery,
they would, on the decease of the defendant, have become
general assets; and so, if he had become bankrupt, they
would have gone to his assignees. The plaintiff could not
have retained them, though he had not received the price.”

But where a purchaser verbally agreed at a public
market with the agent of the vendor to purchase twelve
bushels of tares (then in the vendor’s possession, consti-
tuting part of a larger quantity in bulk), to remain in the
vendor’s possession till called for, and the agent on his
return home measured the twelve bushels and set them
apart for the purchaser, it was held by the Court of King’s
Bench that this did not amount to an acceptance by the
latter, so as to take the case out of the 17th section of the
Statute of Frauds. And Mr. Justice Bayley said, “In
Elmore v. Stone (i) the buyer directed expense to be in-
curred, and the directing of that expense was considered
evidence of an acceptance on his part. That case goes as
far as any case ought to go, and I think we ought not to
go one step beyond it. There is this distinction between
that case and this, that there an expense was incurred on
account and by the direction of the buyer; here there
is none. But I must say, however, that I doubt the
authority of that decision. ‘This case is clearly within the
statute ”’ (7).

(i) Elmore v. Stone, Taunt. 458; 324. And see Richard v. Moore,

10 R. R. 578. 88 L. T., N. 8. 841—C. A.
(J) Howe v. Palmer, 3 B. & Ald.
THE ACCEPTANCE AND RECEIPT.

However, the case of Elmore v. Stone (k) seems to have
been properly decided, because the plaintiff, being a livery-
stable keeper as well as a horse dealer, the buyer, by order-
ing him to keep the horses at livery, directed expense to be
incurred ; and the plaintiff, by consenting to keep them at
livery, relinquished his possession as owner, and held them
only as livery-stable keeper.

In the case of Carter v. Touissant (1), which was a sale
upon credit, the purchaser had exercised various acts of
ownership over the horse, which were held to be no ac-
ceptance within the statute. It appeared that the horse
was sold by a parol contract for 30/., but no time was fixed
for the payment of the price. The horse was fired in the
purchaser’s presence, and with his approbation, and it was
agreed that the horse should be kept by the vendor for
twenty days without any charge being made for it. At
the expiration of that time the horse was sent to grass by
the direction of the purchaser, and by his desire entered as
the horse of the vendor. Chief Justice Abbott and Jus-
tices Bayley and Holroyd distinguished this case from
Elmore vy. Stone (k), on the ground that there the plaintiff
was both a livery-stable keeper and a horse dealer ; but that
here he was not; and held that there was no acceptance of
the horse by the purchaser within the 17th section of the
Statute of Frauds,

The following case was a ready-money transaction, and
the agreement was that the horse should be taken away
and the money paid on a certain day; on that ground
there was held to have been no acceptance within the
statute, although the purchaser had exercised various acts
of ownership over him. It seems A. entered into a parol
agreement to purchase a horse of B. for ready money, and
to take him away at atime agreed upon. Shortly before
the expiration of that time A. returned and ordered the
horse to be taken out of the stable, when he and _ his
servant mounted, galloped and leaped him; and after they
had so done, his servant cleaned him, and A. himself gave
directions that a roller should be taken off and a fresh one
put on, and that a strap should be put upon his neck,
which was consequently done: A. then requested that he
might remain in B.’s possession a week longer, at the
expiration of which time he promised to fetch him away

(k) Elnore v. Stone, 1 Taunt. (2) Carter v. Touissant,2 B. &
458; 10 R. R. 578. Ald. 855; S. 0.1 D. & R. 515.

ll

Various acts
of ownership .

A ready-
money trans-
action.
12

Criterion for
determining
whether goods
are accepted
or not.

Where a
buyer offers
to resell.

Where goods
are agreed to
be resold.

Two kinds of
earnest,

CONTRACTS CONCERNING HORSES, ETC.

and pay for him; to this B. assented. The horse died
the day before A.’s return, and he refused to pay the price.
Tt was held by the Court of King’s Bench that this was a
ready-money bargain, and, as the purchaser could have no
right to take away the horse till he had paid the price,
that there was no acceptance of the horse within the mean-
ing of the Statute of Frauds (1).

The conduct of the buyer after the receipt of the goods
will often be the criterion for determining whether he has
accepted them (n); as, e.g., where he makes an unreason-
able delay in notifying his rejection (7), or deals with them
in an unreasonable manner (0). And there are cases which
show that, without any act of ownership, the act of ex-
amination of the goods, involving as it does an admis-
sion of the existence of the contract, is evidence to go to the
jury of an acceptance by the buyer (00).

Where a person, who has contracted for the purchase of
a horse or any other goods, offers to resell them as his own,
it is a question for the jury whether or not a delivery to and
acceptance by himself has been proved (p). Where, how-
ever, the defendant offered goods which he had refused to
accept, for resale in the market, stating at the same time
that he had not accepted them, and that he would have to
make other arrangements before he could sell, it was held
that there had been no acceptance (pp).

An agreement for the resale of goods by the vendee is
sufficient evidence of a delivery and acceptance, as against
him, to leave to the jury (q).

The Earnest and Part Payment.

The civil law called the earnest “ Arrha,” and this it
interprets to be “ emptionis-venditionis, contracts argu-
mentum” (r). It recognized two kinds of earnest,—sym-
bolical and pecuniary; the one being a transfer of some-

(m) Tempest v. Fitzgerald, 3B. & 793—C. A. See also Nicholson v.

Ald. 680; 22 R. R. 526. Bower, 28 L. J., Q. B. 97; and
(x) Parker v. Wallis, 5 E.& B. ef. Taylor v. Smith, [1893] 2 Q. B.

28. 65; 61 L.J., Q. B. 881; 67L. T.,
(nn) Bushell v. Wheeler, 15Q.B. N.S. 39; 40 W. R. 486.

442 (p) Blenkinsop v. Clayton,7 Taunt.

(0) Parker vy. Wallis,5 E. & B. 597; 18 R. R. 602.
21. (pp) Rickard vy. Moore, 38 L. T.,
(00) Kibble v. Gough, 388 L. T., N.S. 841—C. A.
N. 8. 204—C. A. ; Page v. Morgan, (2) Chaplin v. Rogers, 1 East, 192;
15 Q. B. D. 228; 54 L. J.,Q. B. 6h. BR. 249.
434; 58L.T.,N. 8.126; 53 W.R. (r) 2 Bla. Com. 447.
THE EARNEST AND PART PAYMENT.

thing by way of pledge or assurance, and the other being a
payment of part of the purchase-money (s). A similar dis-
tinction is made in the Statute of Frauds (¢), and in
section 4 of the Sale of Goods Act, 1893, ante, p. 5. Thus
the buyer must ‘“ give something in earnest to bind the bar-
gain,” or “give something in part payment.”

A symbolical earnest may be anything used by the
parties to bind the bargain. Therefore, a saddle, bridle,
horsewhip or currycomb may be used for the purpose.

A pecuniary earnest consists of a current coi or sum of
money given in part payment, and its efficacy does not
depend upon its value being proportioned to that of the
article contracted for.

Where the earnest, whether symbolical or pecuniary,
is delivered to the vendor, it should be kept by him, and
not be returned to the purchaser. For where the purchaser
of a horse or other goods draws the edge of a shilling over
the hand of the vendor, and returns the money into his own
pocket, which in the north of England is called “ striking
off a bargain,” it is neither an earnest nor a part payment
within the statute (7).

Where an earnest was given on a contract of sale, the
old rule was, that if the buyer repented of his bargain, he
might refuse to fulfil it, upon forfeiting to the seller the
whole earnest money deposited. But if the failure to com-
ply with the contract was on the part of the vendor, he was
bound to make fourfold restitution to the vendee (z).

But under the statute the earnest binds the bargain, and
therefore the property passes in the same way as where
there is a part payment. And under such circumstances an
action for the price may be supported (y). Thus in an ex-
change of horses, when it was agreed that the plaintiff
should pay the defendant four guineas to boot on the 17th
December following, and also that the plaintiff should keep
the colt till the September following, and the defendant “to
make the agreement more firm and binding, paid to the

laintiff one halfpenny in earnest of the bargain,” it was
held that the payment of the halfpenny vested the property
of the colt in the defendant (z).

(s) Code Civile, 1590; Vinnius, (u) Blenkinsopv. Clayton,7 Taunt.
Com. in Inst. 1. 3, tit. 824. See 597; 18 R. R. 602.
also Howe v. Smith, 27 Ch. D. 89, a Bracton, lib. 2, cap. 27, fol. 62.
100, 101; 53 L. J., Ch. 1055; 50 (y) Dyer v. Cowley, 17 L. J.,

L. T., N. 8. 573; 32 W. R. 802. Q. B. 360.
(¢) 29 Car. 2, ¢. 3, s. 17. (2) Bach v. Owen, 5 T. R. 409.

13

Symbolical.

Pecuniary.

Earnest should
be retained by
the vendor.

The old rule.

Effect of
earnest under
s. 4 of the
Sale of Goods
Act, 1893.
14

Effect of part
payment.

Written
agreement.

No particular
form required.

Names of the
contracting
parties.

Terms of the
contract must
be stated.

May be col-
lected from
more than one
document.

CONTRACTS CONCERNING HORSES, ETC.

Where there was a part payment for some animals,
which were deposited with a third party till the full amount
was paid, and two of them died, the loss was held to fall on
the purchaser (a).

The Note or Memorandum in Writing.

If there has been either an agreement in writing, or a
parol agreement which is afterwards reduced into writing, by
the parties, that writing alone must be looked to, to ascer-
tain the terms of the contract (0).

No particular form is necessary to constitute a good note
or memorandum in writing; and a sold note (c) or a bill of
parcels is sometimes sufficient, where it can be proved that
it has been recognized by the other party (¢). However,
there are certain requisites which must be contained within
the instrument, to satisfy the statute.

The note or memorandum in writing must state who are
the contracting parties (e). But it is not necessary that
they should appear actually on the face of the memorandum ;
if, from the memorandum taken in connection with sur-
rounding cireumstances, it clearly appear who they are, this
is sufficient (/).

It must also state the terms upon which the contract is
made, because the word bargain means the terms upon
which the parties contract. As, for instance, in Bristovw v.
Halford (g), the memorandum of agreement on the sale of
a race-horse called Baron Biel, was to the effect that the
defendant should purchase the horse for 300/. paid down,
1007. in three months, 1007. on the horse winning the
Goodwood Cup, and 1,000/. on his winning the St. Leger
Stakes, for which the defendant undertook to enter him.

But though it does not state the terms upon which the
contract is made, it will be sufficient to satisfy the statute,
if it distinctly refers to and recognizes another document,
which does contain them (#). The connection between the

(a) Dyer v. Cowley, 17 L. J.,
Q. B. 360.

(b) Per Lord Abinger, C. B.,
Allen v. Pink, 4 M. & W. 144.

(c) Parton v. Crofts, 33 L. J.,
C. P. 189; Sierewright v. Archi-
bald, 20 L. J., Q. B. 529.

(d) See Johnson v. Dodgson, 2M.
& W. 6538; Durrell vy. Bvans, 31
L. J., Ex. 337.

(e) Williams v. Lake, 29 L. J.,
Q. B. 1; Williams v. Byrnes, 9

Jur., N.S. 363; Champion v. Plum-
mer, LN. R., B. & P. 252; 8R.R.
795 ; Laythroap v. Bryant, 2 Bing.,
N. 8. 244; Williams v. Jordan,
6 Ch. D. 517; 46 L. J., Ch. 681.
de Ff) Chitty on Contracts, 12th ed.

(9) Bristow v. Halford, before
Lord Campbell, C. J., West. C. P.
Feb. 1, 1853.

(A) Ridgway v. Wharton, 27 L. J.,
Ch. 46.
THE NOTE OR MEMORANDUM IN WRITING.

documents must appear on the face of them, for it cannot
be supplied by parol evidence (7), which can only be used
to show, what the writing is which is referred to, and which
is not admissible to supply any defects or omissions in the
written evidence (f).

An ‘agreement, letter, or memorandum made for or
relating to the sale of any goods, wares, or merchandize,” is
exempted from stamp duty (2).

If at an auction the purchaser’s name be signed to a
catalogue, it must be connected with or refer to the condi-
tions of sale, to make the contract valid (m). And it is not
sufficient where they are merely in the room but not actually
attached to the catalogue, or clearly referred to in it; andif
during the sale they get separated, the signatures made
after the separation are unavailable (n).

Where, at a sale of horses, there was a catalogue which
contained the number of the lot, the description of the
mare to be sold, and the conditions; and a sales ledger
containing the same information with regard to lot and
description, together with the name of the purchaser and
the price at which the mare was sold, but having no refer-
ence to the catalogue which contained the conditions of
sale; it was held that the catalogue and conditions of sale
were not sufficiently connected with the sales ledger to
make a memorandum within the statute.

The Court was also of opinion that a letter, which the
purchaser subsequently wrote admitting the purchase, did
not constitute a sufficient memorandum, because it neither
stated a price nor referred to the sales ledger where the
price was stated (0).

The price when agreed upon is a material part of the
bargain, and must be stated in the memorandum. Thus,
where on the 13th June a verbal contract was made for
the sale of a horse, warranted five years old, for 200
guineas, and in order to take the case out of the Statute
of Frauds, the plaintiff gave in evidence the following
letter, written by the defendant on the 18th of June:

(i) Boydell v. Drummond, 11 East,
142; 10R. R. 450; Caddick v. Skid-
more, 27 L.J., Ch. 153; Pierce v.
Corf, L. R., 9 Q. B. 217; 43 L. J.,
Q. B. 52.

(4) Boydell v. Drummond, 11
East, 142; 10 R. R. 450; Fitemau-
rice v. Bayley, 9 H. L. Cas. 78.

() 33 & 34 Vict. c. 97, Sch.
“« Agreement ’’ (3).

(m) Hinde v. Whitehouse, 7 Hast,
568; 8 R. R. 676.

(n) Kenworthy v. Scholfield, 2 B.
& C. 945.

(0) Pierce v. Corf, L. R., 9 Q. B.
210; 43 L. J., Q. B. 52; 29 L. T.
N. 8S. 919. And see Rishton v.
Whatmore, 8 Ch. D. 467; 47 L. J.,
Ch. 629; 26 W. R. 827.

15

The Stamp
Act.

Catalogue at
a sale.

Price when
agreed upon.
16

‘Where no
price is agreed
upon.

Contract by
letter.

CONTRACTS CONCERNING HORSES, ETC.

“Mr. Kingscote begs to inform Mr. Elmore, that if the
horse can be proved to be five years old, on the 13th of
this month, in a perfect satisfactory manner, of course he
shall be most happy to take him; and if not most clearly
proved, Mr. K. will most decidedly not have him.”? Lord
Chief Justice Abbott was of opinion that this was not a
sufficient note or memorandum in writing within the
Statute of Frauds, and nonsuited the plaintiff. The
Court of King’s Bench confirmed the nonsuit, on tbe
ground that the price agreed to be paid constitutes a material
part of the bargain ; because if it were competent to a party
to prove by parol evidence the price intended to be paid, it
would let in much of the mischief which it was the object
of the statute to prevent (p); but it has been held that a
written order for goods, “‘on moderate terms,” is sufli-
cient (q).

If, however, no price is fixed and agreed upon, a note
or memorandum which does not state any will be sufficient,
and the law will infer that a reasonable price was to be
paid (vr); on the principle that if I take up wares from a
tradesman, without any agreement as to price, the law
concludes that I contracted to pay their real value (s).

The omission of the particular mode or time of payment
does not necessarily invalidate the agreement (f).

A person who transacts a proposal by J/etter must be
considered as renewing his offer every moment, until the
time at which the answer is to be sent, and then the con-
tract is completed by the acceptance of the offer. For if
the law were otherwise, no contract could ever be com-
pleted by post (#). And if a letter be given in evidence
with the direction torn off, the jury will do well to presume
pring facie, that it was addressed to the person who pro-
duces it (x).

Where an intending purchaser wrote to the seller saying,
“Tf I hear no more about the horse, I consider the horse
is mine at 50/. 15s.,” and the seller did not answer the
letter, the purchaser would have been bound to his offer, if
the seller had chosen to accept it; but the fact of the seller

(p) Elmore v. Kingscote,5 B. & 488.
C. 583. See also Zaylor v. Smith, (s) 2 Bla. Com. 30.
[1893] 2Q. B. 65; 61 L.J.,Q. B. (t) Sarl v. Bourdillon, 26 L. J.,
331; 67 L. T.,N.8. 39; 40 L. TT. CO. P. 78.

486. (u) Dunlop v. Higgins, 12 Jur.
(q) Asheroft v. Morrin,4 M. & 295. .
G. 450 (x) Curtis v. Rickards, 1 M. & G.

(r) Handley v. M‘Laine,10 Bing. 47, per Tindal, C. J.
THE NOTE OR MEMORANDUM IN WRITING.

not having answered the letter will not bind him, as the
purchaser had no right to put upon him the burden of the
choice of writing a letter of refusal or being bound by the
agreement proposed (y).

If letters taken together contain a sufficient contract,
namely, one that would express all its terms, they would
constitute a memorandum in writing within the statute.
And of course therefore the Court may look at all the
letters which have passed, for the purpose of seeing whether
or not they contain a sufficient contract to take the case out
of the statute (s).

A letter signed by the party to be charged after the
transaction has taken place, which states (or plainly refers
to other documents which state) and admits the terms of
the contract, is a good memorandum under the statute,
even if such letter contain an attempted repudiation by the
writer of his liability under the contract (a).

Where A. sold a particular bay mare to B. through C.
who was acting as agent to B., and OC. wrote to B. stating
that he had bought “the bay mare” for forty guineas, and
followed it up by other letters reiterating the terms of sale,
and requesting payment; whereupon B. wrote to C. allud-
ing to the mare which C. bought for him, and promising
payment; it was held that B.’s letter, though sent to his
own agent, was, coupled with C.’s letters, a sufficient memo-
randum of the sale as against B. (0).

But as mutual assent is necessary to constitute a binding
contract, it is held that where it is sought to establish an
agreement by means of letters, such letters will not amount
to an agreement, unless the answer be ex simplice, without
the introduction of any new term (c). Thus, in the follow-
ing case an action of asswmpsit was brought for the price of
a mare sold and delivered, to which the defendant pleaded
non assumpsit. It appeared that the defendant having seen

(y) Felthouse v. Bindley, 31 L. J.,
C. P. 204.

(2) Archer v. Baynes, 5 Ex. 629 ;
Richards v. Porter, 6 OC. B. 438;
Warner v. Willington, 25 L. J., Ch.
662 ; Smith v. Neale, 26 L. J., C. P.
143; Watts v. Ainsworth, 1 H. &
C. 83; Bailey v. Sweeting, 9 C. B.,
N. 8S. 843; 30 L. J., C. P. 150;
9 W. R.273; Pierce v. Corfe, L. R.,
9Q.B. 214; 43 L. J., Q. B, 62; 29
L. T., N. 8. 919.

(a) Bailey v. Sweeting, 9 C. B.,

U,

N. 8. 843; 30 L. J., C. P. 150;
Wilkinson v. Evans, L. R., 1 C. P.
417; Buaxton v. Rust, L. R., 7 Ex.
1; 41 L. J., Ex. 1; 25 L. T.,N.S.
502, affirmed L. R., 7 Ex. 279;
Leather Cloth Co. v. Heironimus, L.
R., 10 Q. B. 140; 44 L.J., Q. B.
64; 82 L. T., N. 8. 307.

(b) Gibson v. Holland, L. R., 1
C. P.1; 35 L. J., OC. P. 5; 14
W. R. 86.

(c) Cooper v. Hood, 28 L. J., Ch.
212.

Cc

17

Must express
all the terms
of the agree-
ment.

Mutual assent.
18

CONTRACTS CONCERNING HORSES, ETC.

and ridden a mare, wrote to the plaintiff, “I will take the
mare at twenty guineas, of course warranted ; therefore as
she lays out, turn her out my mare.” The plaintiff agreed
to sell her for the twenty guineas. The defendant after-
wards wrote again to him, “My son will be at the ‘ World’s
End’ (a public house) on Monday, when he will take the
mare and pay you; send anybody with a receipt, and the
money shall be paid; only say in the receipt sound, and
quiet in harness.” The plaintiff wrote in reply, “she is
warranted sound, and quiet in double harness; I never put
her in single harness.” The mare was brought to the
“ World’s End” on the Monday, and the defendant’s son
took her away without paying the price, and without any
receipt or warranty. The defendant kept her two days and
then returned her as being unsound. The learned judge
stated to the jury that the question was, whether the defen-
dant had accepted the mare, and directed them to find for
the defendant if they thought he had returned her within a
reasonable time ; and desired them also to say whether the
son had authority to take her without the warranty. The
jury found that the defendant did not accept the mare, and
that the son had not authority to take her away. It was
held by the Court of Exchequer, on motion to enter a
verdict for the plaintiff, that there was no complete contract
in writing between the parties; that therefore the direction
of the learned judge was right. Also that the defendant
was not bound by the act of the son in bringing home the
mare, inasmuch as he had thereby exceeded his authority
as agent, and consequently that the plaintitf was not entitled
to recover (cc). And where the plaintiff sent his horse to a
livery stable for sale, and the defendants bid 75/. for him,
but no final agreement was come to, and the plaintiff left
the horse at the livery stable to see if the defendants would
buy the animal, arranging with the livery-stable keeper
that he was to have no commission on the sale unless 75/.
or more were paid; and the horse proving slightly unsound,
the defendants wrote to the livery-stable keeper offering
70/. for him, and the livery-stable keeper having trans-
mitted their letter to the plaintiff, he (the plaintitf) wrote
to the livery-stable keeper as follows: “As the horse is
with you he shall go at 70/. clear to me. I will pay no
expenses ; you must get what you can of Mr. B. (one of the
defendants) ; I cannot allow anything off the 702.” It was

(ce) Jordan y. Norton, 4 M. & W. 155.
THE NOTE OR MEMORANDUM IN WRITING.

held, that as the plaintiff, by his answer to the defendant's
offer, stipulated that they should bear expenses to which he as
vendor was prima facie liable, he had added a new term to
those proposed, and, in the absence of an acceptance of that
term, there was no complete contract between the parties (¢).

On the other hand, however, two letters may be sutffi-
ciently identical to constitute a contract, although the letter
of proposal may mention a term which is omitted to be
mentioned in the letter of acceptance (e).

The terms of a written contract for the sale of goods,
falling within the operation of the statute, cannot be varied
or altered by parol; and where a contract for the bargain
and sale of goods was made, stating a time for the delivery
of them, it was held by the Court of Exchequer that an
agreement to substitute another day for that purpose must,
in order to be valid, be in writing (f). So, also, where the
day appointed for the delivery of goods was subsequently
discovered to be a Sunday, and it was then by word of
mouth agreed between the parties that the delivery should
be made on the “ Monday or Tuesday” following: it was
held by the Court of Queen’s Bench, that the enlargement
of time having materially varied the contract, and im fact
substituted a new one, an action for nondelivery could not
be maintained (g). But forbearance on the part of the
plaintiff is not a variation of the contract (/).

But though the terms of a written contract cannot be
contradicted, altered or varied by parol evidence, yet such
evidence is admissible to define what the written contract
has left undefined (i); e.g., where it contains no date (A),
or where its terms can only be given precision when ex-
plained by the sense which mercantile usage has put upon
them (/), or where the subject-matter of the contract can
only be ascertained by the admission of a conversation with
reference to it (m). So, too, where goods are ordered by

(d) Lewis y. Pedrick, 29 L. T., Q. B. 272, Ex. Ch.; 37 L.J.,Q. B.
771

N. 8. 178. :
(e) Metzler v. Gounod, 32 L. T., (t) Per Erle, C. J., Lucas v. Bris-
N.S. 656. tow, El. Bl. & El. 918.

(f) Marshall v. Lynn, 6 M. &

W.118: and see Nodle v. Ward,
L. R., 1 Ex. 117; L. R., 2 Ex.
135, Ex. Ch.

(g) Stead vy. Dawber, 10 A. & E.
57; and see Hickman v. Haynes,
L. R., 10 C. P. 598; 44 L.J., C. P.
358; 82 L. T., N. 8. 873; 23 W.
R. 871.

(h) Oglev. Vane (Earl), L. R., 3

(&) Davis v. Jones, 25 L. J., C. P.
91.

(2) Lucas v. Bristow, El. Bl. &
El. 907; Dale vy. Humfrey, El. Bl.
& Hl. 1004.

(m) Macdonald v. Longbottom, 6
Jur., N. 8. 724; Chadwick v. Burn-
ley, 12 W. R. 1077. See also Buax-
ton v. Rust, L. R., 7 Ex. 280, 281—
Ex. Ch., per Willes, J.

c 2

19

Terms cannot
be varied by
parol.

But may be
explained.
20

Matters ante-
cedent to the
writing.

Condition
precedent.

Memorandum
made after
action.

What is
necessary.

As to initials.

CONTRACTS CONCERNING HORSES, ETC.

letter, which does not mention any time for payment, and
such letter amounts to a valid contract within the statute,
parol evidence is admissible to show that the goods were
supplied on credit (7). ;

But a matter antecedent to and dehors the writing may
in some cases be received in evidence, as showing the in-
ducement to the contract ; such as a representation of some
particular quality or incident of the thing sold. But the
buyer is not at liberty to show such a representation, unless
he can also show that the seller by some fraud prevented him
from discovering a fault which he, the seller, knew to
exist (0).

Parol evidence is also admissible of a condition, on which
the written agreement depends, such evidence being as to
facts distinct from, but collateral to, the written agree-
ment (p).

In order to sustain an action, there must be a good con-
tract in existence at the time of action brought. There-
fore, a memorandum in writing of a contract after action
brought does not satisfy the statute (q).

The Signature by the Party to be Charged.

Section 4 of the Sale of Goods Act, 1893, requires that
there should be a note or memorandum of the contract in
writing, signed by the party to be charged; and the cases
have decided that, although the signature be in the begin-
ning or middle of the instrument, it is as binding as if at
the foot of it, the question being always open to the jury,
whether the party not having signed it regularly at the
foot, meant to be bound by it as it then stood, or whether
he left it so unsigned, because he refused to complete it (r).

The Christian name of the signature may be set out at
length or denoted by the initial, or left out’ altogether (s) ;
but it seems that the surname must be written at length,
and that the mere initials will not suffice (t). A mark by
a person unable to write may suffice if sufficiently iden-
tified (w). An unsigned postscript commencing, “I had
quite omitted to tell you and Martin,” on a separate piece

(n) Lockett v. Nicklin, 2 Ex. 93. 8) Lobb vy. Stanley, 5 Q. B.
il din wy Oca, BAG eal, a OD,

(p) Pym v. Campbell, 6 El. & Bl. t) Sweet v. Lee, 3 M. & G.
3105 Lindley ve Lacey, 5 N.R. 51. ast ae eee
36”) Bill v. Bament,9 M. & W. (u) Baker vy. Dening, 8 A. & E.
7 : 94; Bennett vy. Brumfit, L. R., 3
(r) Per Lord Abinger, C. B, 0.2.28; 37 L J) GP. gee Ly
Johnson v. Dodgson, 2 M. & W.659. iL. T., N. 8. 213. ;
THE SIGNATURE BY THE PARTY TO BE CHARGED.

of paper, enclosed in the same envelope with, but not re-
ferred to by, a letter signed with initials, is not sufficient to
satisfy the statute (2).

If a man be in the habit of printing instead of writing
his name, he may be said to sign by his printed as well as
his written name (y). And an invoice with “Bought of
Norris & Co.” printed on it, which was filled up in the
body with the handwriting of Norris, was held to be, for
the purpose of the statute, signed by Norris (s).

The statute requires that the note should be signed by
the party to be charged; accordingly it is no objection that
it is not also signed by the other party, and consequently
that there is no remedy against him (a). But a note in
writing, signed by one party, will be insufficient, unless it
also specifies the name of the other party (0). A signature
by the defendant, however, in the plaintiffs’ order-book on
the fly-leaf, at the beginning of which were written the
plaintiffs’ names, will do (c). And where the defendant
accepted an offer to buy, by telegram, giving signed in-
structions to the telegraph clerk, this was held to be a
sufficient signature (d). If, on the other hand, the note in
writing is signed by the seller only, it will plamly be in-
sufficient to charge the buyer (e).

It is no objection to the signature that it was not made
to satisfy the statute, but in obedience to some other
statute; so long as it is by the party to be charged, and
attests the document which contains the terms of the agree-
ment, it is sufficient (/).

The Signature by an Agent.

The statute requires some note or memorandum in
writing, to be signed by the party to be charged, or his

(«) Kronheim v. Johnson, 7 Ch. D.
60; 47 L. J., Ch. 1382; 37 L. T.,
N. 8. 752.

(y) Saunderson v. Jackson, 2 B. &
P. 238; 5 R. R. 580.

(2) Schneider v. Norris, 2M. &8.
286; 15 R. R. 250. And see Tour.
ret v. Cripps, 48 L. J., Ch. 567; 27
W. R. 706.

(a) Allen v. Bennett, 3 Taunt.
169; 12 R. R. 633; Egerton v.
Matthews, 6 East, 307; 8 R. R.
489 ; Laythroap v. Bryant, 2 Bing.
N. C. 744; Reuss v. Picksley, L. R.,
1 Ex. 342, Ex. Ch.; Buaton v.

Rust, L. R., 7 Ex. 279, Ex. Ch.

(8) Williams v. Lake, 29 L. J.,
Q. B. 1; Williams v. Byrnes, 9
Jur., N. 8. 363; Williams v. Jor-
dan, L. R., 6 Ch. 517; 46 L. J.,
Ch. 681; 26 W. R. 230.

(c) Sarl v. Bourdillon, 26 L. J.,
C. P. 78.

(4) Godwin vy. Francis, L. R., 5
C. P. 295; 39 L. J., C. P. 121; 22
L. T., N. 8. 338.

(0) Champion v. Plummer, 1 B. &
P.,N. RB. 252; 8 R. R. 795; Cooper
y. Smith, 15 East, 103; 13 R. R. 397.

(f) Jones v. Victoria Graving

21

Where a man
prints his
name.

Names of
parties how to
be shown.

Signature for
another pur-
pose.

What is
necessary.
22

Who may be
an agent.

How consti-
tuted.

Need not be
authorized in
writing.

Auctioneer.

Auctioneer’s
clerk.

CONTRACTS CONCERNING HORSES, ETC.

agent thereunto laofully authorized, leaving us to the rules
of common law as to the mode in which the agent is to re-
ceive his authority. Now, in all other cases a subsequent
sanction is considered the same thing in effect as assent at
the time. Omnis ratihabitio retrotrahitur, et mandato equi-
paratur ; and the subsequent sanction of a contract, signed
by an agent, takes it out of the operation of the statute
more satisfactorily than an authority given beforehand.
Where the authority is given beforehand, the party must
trust to his agent; if it be given subsequently to the con-
tract, the party knows that all has been done according to
his wishes ().

An agent must be a third person, and not the other con-
tracting party (/). :

An infant or married woman may be an agent, their acts
in that capacity not being affected by their disabilities of
infancy and coverture respectively (2). ;

An agent may be constituted either by express appoint-
ment or by implication of law arising from the circumstance
in which parties are placed (/). :

The authority of the agent to sell for his principal
may be conferred by word of mouth (/); for it is now
clearly settled that the agent need not be authorized in
writing (#2).

In general an auctioneer may be considered as the agent
and witness of both parties; but a difficulty arises in the
case where the auctioneer sues as one of the contracting
parties. The case of Wright v. Dannah (n), seems to be in
point; namely, that the agent contemplated by the legis-
lature, who is to bind a defendant by his signature, must
be some third person, and not the other contracting party
upon the record (0).

An entry made in the sale book by the auctioneer’s
clerk who attends the sale, and as each lot is knocked down

Dock Co., L. R., 2 Q. B.D. 314; N.C. 438.

46 L. J., Q. B. 219; 32 L. T.,
N. 8. 347.

(g) Per Best, C. J., Maclean v.
Dunn, 4 Bing. 727.

(h) Sharman y. Brandt, L. R., 6
Q. B. 720; 40 L. J., Q. B. 312;
Wright v. Dannah, 2 Camp. 203;
11 R. BR. 693; Farebrother v. Sim-
mons, 5 B. & Ald. 338.

(<) Paley’s Principal and Agent,
2; Prestwick vy. Marshall, 7 Bing.
565; Prince v. Brunette, 1 Bing.

(k) 2 Steph. Com. 117.

(2) Acebal vy. Levy, 10 Bing. 378.

(m) Per Lord Eldon, Coles vy.
Trecothick, 9 Vesey, 249a; 7R. R.
167; Emmerson v. Heelis, 2 Taunt.
48; 11 R. RB. 520.

(x) Wright v. Dannah, 2 Camp.
203; 11 R. R. 693.

(0) Farebrother v. Simmons, 6 B.
& Ald. 335; Sharman v. Brandt,
L. R., 6 Q. B. 720.
THE SIGNATURE BY AN AGENT.

names the purchaser aloud, and on the sign of assent from
him makes a note accordingly in the book, is a memo-
randum in writing by an agent within the statute (p).
The book in which the entry is made must, however, be
sufficiently connected with the conditions of sale (¢).

A memorandum drawn up by the agent of both parties
by the authority of the defendants, in their presence, and
recognized by them at the time, though unsigned by them-
selves, yet with their names inscribed on the document by
him, will bind them and satisfy the statute (r). But a
memorandum written in the buyer’s book, drawn up and
signed by a person who is the agent of the seller only,
although this was done at the request of the buyer, will not
bind him (s).

Delivery and Payment.

The right of property and the right of possession are
distinct from each other; the right of possession may be in
one person, the right of property in another (¢). For by
the law of England, possession is not proof of property (7).
It is, at the same time, presumptive proof of ownership,
and may be acted on as such (z).

When the contract is executed, the possession and the
right are transferred together; where it is evecutory, the
right only vests, and the reciprocal property is not in
possession, but in action; for a contract executed (which
when it relates to an exchange or sale of goods differs in
nothing from an assignment) conveys a chose in possession,
a contract executory conveys only a chose in action (2).

It is clear that by the law of England the sale of a
specific chattel passes the property in it to the vendee with-
out delivery. ven in this case, however, if the contract
show that there is no intention to pass the property until
something be done by the seller, either in order to prepare
the goods for delivery, or for the purpose of ascertaining

(p) Bird v. Boulter, 4 B. & Adol.
443

(q) Pierce v. Corf, L. R., 9 Q. B.
310; and see Repositories and Auc-
tions, post, pp. 38, 39.

(r) Durrell vy. Evans, 31 L. J.,
Ex. 337.

(s) Graham vy. Musson, 5 Bing.
N. C. 603. And see Ifurphy v.
Boese, L. R., 10 Ex. 126; 44 L. J.,
Ex. 40; 32 L. T., N. 8. 122.

(t) Tarling v. Baxter, 6 B. & C.
364; Sale of Goods Act, 1893,
8. 18, Psd,

(uw) See per Best, C. J.,
vy. Barton, 3 Bing. 145.

(e) Webb v. Fox, 7 T. R. 397;
4. R. 472; Fyson v. Chambers, 9
M.& W. 460.

(x) 2 Steph. Com. 112. See also
s. 1, sub-s. (3), of the Sale of Goods
Act, 1893, ante, p. 2.

Williams

23

Clear recog-
uition of
contract by
parties
sufficient.

Rights of
property and
possession.

Executed and
executory
contracts.

Property may
pass without
delivery.
Condition as
to price ascer-
tainable.

Effect where
not ascer-
tainable.

The risk
after sale.

CONTRACTS CONCERNING HORSES, ETC.

the price, the sale is not perfected, and the property does
not pass until that thing is done (y). Ee

Where, in an agreement of sale, a condition as to the
price is annexed, and the fulfilment of it is ascertainable,
such condition would appear to be good; as where the
plaintiff purchased a horse for 557, and the defendant
warranted him sound, and agreed to give back 1/. if the
horse did not bring the plaintiff 4/. or 5/. profit (<). ;

But if such condition is not ascertainable, of course it
cannot be enforced, and then it becomes an immaterial part
of the agreement. ‘Thus, where a horse was sold to the
plaintiff for 100 guineas, “and 10/. more if the horse suited
him,” Lord Tenterden said, “If the buyer had kept the
horse, I do not see how the seller could have maintained
any action to recover the 107. The buyer might have said,
‘the horse does not suit me, but I choose to keep him
nevertheless’ (a). So, also, where the plaintiff agreed to
purchase a horse for 63/., and “if the horse was lucky, he
would give the defendant 5/. more, or the buying of another
horse,” it was held that this part of the agreement was too
vague to be legally enforced, and did not amount in point
of law to a promise. Thus, Lord Tenterden said, “The
remaining part of the consideration, that if the horse
proved lucky the plaintiff should give 5/. more, or the
buying of another horse, is much too loose and vague to be
considered in a Court of law. Who is to say under what
circumstances a horse shall be said to have proved ‘lucky’ ?
The price at which the horse sold would not determine it.
Suppose a year passed before the advanced price was
obtained, it might then still be a question, whether the
bargain had been lucky or not. But admitted that this
could be ascertained, how could the contract to give 57, or
the buying of another horse, be enforced? It is at the
option of the contracting party to do either; and what
could be made of an action for not buying another horse ?
The party sued might say he was ready to buy, but too
much was asked” (0).

The rule of law is, that where there is an immediate
sale, and nothing remains to be done by the vendor as
between him and the vendee, the property in the thing

(y) See per Parke, J., Dixon vy. 472.

Yates, 5 B. & Adol. 340; Buddle v. (a) Cave v. Coleman, 3 M. & R. 3.
Green, 27 L. J., Ex. 33; Sale of (0) Guthing v. Lynn, 2B. & Adol.
Goods Act, 1893, s. 18, rr. 1, 2. 234.

(2) Blyth v. Bampton, 3 Bing.
DELIVERY AND PAYMENT.

sold vests in the vendee, and then all the consequences
resulting from the vesting of the property follow, one of
which 1s, that if it be destroyed, the loss falls upon the
vendee (¢c). Thus, in Noy’s Maxims it is said, “If the
horse die in my stable between the bargain and the
delivery, I may have an action of debt for my money,
because, by the bargain, the property was in the buyer” (d).
By contract, however, the risk may be in the vendee, even
though the vendor may have both the property in and the
possession of the goods (e).

A contract for the sale of goods, to be delivered at a
future day, is not invalidated by the circumstance that, at
the time of the contract, the vendor neither has the goods
in his possession, nor has entered into any contract to buy
them, nor has any reasonable expectation of becoming
possessed of them by the time appointed for delivering
them, otherwise than by purchasing them after making the
contract (f).

Where there is a sale of an ascertained article, and no
provision is made to the contrary, the delivery and payment
are to be contemporaneous acts (9).

Unless a different intention appears from the terms of
the contract, stipulations as to time of payment are not
deemed to be of the essence of a contract of sale. Whether
any other stipulation as to time is of the essence of the
contract or not depends on the terms of the contract ().

Where goods are sold, and nothing is said as to the time
of the delivery, or the time of payment, and everything
the seller has to do with them is complete, the property
vests in the buyer, so as to subject him to the risk of any
accident which may happen to the goods, and the seller
is liable to deliver them, whenever they are demanded,
upon payment of the price, but not before (7).

(c) Per Bayley, J., Zarling v.
Baxter, 6 B. & C. 364; see also
Furley v. Bates, 33 L. J., Ex. 43;
Castle v. Playford, L. R., 7 Ex. 98;
Sale of Goods Act, 1893, s. 20.

(d) Noy’s Maxims, 208.

(e) Martineau v. Kitching, L. R.,
7 Q. B. 436, cited in Chitty on
Contracts, 12th ed. 433.

(f) Hibblewhite v. McMorine, 5
M. & W. 462; Sale of Goods Act,
1893, s. 5.

(9) Pettitt v. Mitchell, 3 Sco. N.
R. 740; Chase v. Westmore, 5 M. &

8.189; 17 R. R. 301; Cowper v.
Andrews, Hob. 41; Noy’s Maxims,
cap. 42; 2 Bla. Com. 447; Year
Book, Easter Term, 5 Edw. 4, fol.
20; Sale of Goods Act, 1893, s. 28.

(h) Sale of Goods Act, 1893,
s. 10; see also Martindale v. Smith,
1 Q. B. 395, per Cur.; Reuter v.
Sala,4 C. P. D. 249, per Cotton,
LJ.

(i) Blozam v. Sanders, 4 B. & C.
941; Sale of Goods Act, 1893,
s. 28.

Goods to be
delivered on a
future day.

Delivery and
payment con-
temporaneous
acts.

Time not the
essence of a
contract.

‘Where
nothing is
said about
the time of
the delivery.
26

Relative posi-
tion of the
parties.

Seller’s lien
for the price.

Lien in case
of an ex-
change.

Conditional
possession.

Buyer’s right
of possession
where goods
are sold on
credit.

How it may
be deteated.

CONTRACTS CONCERNING HORSES, ETC.

A vendor may have a qualified right to retain the goods
unless payment is duly made, and yet the property in
these goods may be in the vendee (/). Thus it is said,
in Noy’s Maxims (k), “If I sell my horse for money, I
may keep him until I am paid, but I cannot have an
action of debt until he is delivered; yet the property of
the horse is, by the bargain, in the bargainee or buyer.
But if he do presently tender me my money, and I do
refuse it, he may take the horse, or have an action of
detainment.” Andif the buyer in such case take away
the horse before the price is paid, the seller may have an
action of Trespass, or an action of Debt for the money, at
his choice (/).

The seller’s right in respect of the price is not a mere
lien which he will forfeit if he parts with the possession,
but grows out of his original ownership and dominion,
because payment or a tender of the price is a condition pre-
cedent on the buyer’s part, for until he makes such pay-
ment or tender he has no right to the possession (v2).

In the case of an exchange of two horses for one, a
delivery of one of the two would not preclude the owner’s
lien on the other till the delivering of the one horse for
which the two were to be exchanged (7).

And whatever conditional or temporary arrangement
be made as to possession, so long as it is consistent with
an intention to retain a special right to detain the goods,
the seller will not forfeit his lien. Thus, if A. purchase a
horse of B., which is not to be delivered until the price
be paid, but B. in the meantime allows A. to take the
horse for a day or a week to drive, the lien of B. is not
determined, but merely suspended during the time for
which he allows A. to take the horse (0).

If goods are sold upon credit, and nothing is agreed
upon as to the time of delivering them, the buyer is
immediately entitled to the possession, and the right of
possession and the right of property vest at once in
him (7).

But his right of possession is not absolute; it is liable

(J) Larling vy. Baxter, 6 B. & C. (x) See Hanson v. Meyer, 6 East,
364. 621; 8 R. R. 572.

(k) Noy’s Maxims, 208. (0) See Story on Sales, 236;

(2) Mlanhy v. Seott,1 Mod. 1387; Reeves v. Capper, 5 Bing. N. C.
1 Dyer, 30 a, pl. 203. 136.

(m) Blocam y. Sanders, 4 B. & C. (p) Bloxam vy. Sanders, 4 B. & C.

948; Sale of Goods Act, 1893, 948.
se OO:
DELIVERY AND PAYMENT,

to be defeated if he becomes bankrupt before he obtains
possession (q).

The sale of a specific chattel on credit, though that
credit may be limited to a definite period, transfers the
property in the goods to the vendee, giving the vendor a
right of action for the price, and a lien upon the goods,
if they remain in his possession, till that price be paid,
but default of payment does not rescind the contract (r).

The seller of goods has not only a lien on them for the
price, whilst they are in his possession, but when the price is
unpaid he may, after he has parted with the possession of
the goods, and whilst they are in transitu, retake them in
the event of the bankruptcy or insolvency of the buyer (s).

Stoppage in ¢ransitu, as 1ts name imports, can only take
place whilst the goods are on their way to the buyer; and
the rule to be collected from the cases is, that they are in
transitu so long as they are in the hands of the carrier as
such (¢), and also so long as they remain in any place of
deposit connected with their transmission (2).

A contract of sale is not generally rescinded by the
mere exercise by an unpaid seller of his right of hen or
retention or stoppage in transitu. But where the seller
expressly reserves a right of re-sale in case the buyer should
make default, and on the buyer making default, re-sells
the goods, the original contract of sale is thereby rescinded,
but without prejudice to any claim the seller may have
for damages (2).

In a contract for the sale of goods, “the goods to be
delivered at the works forthwith, and to be paid for
within fourteen days from the date of the contract,” the
delivery of the goods is a condition precedent to the right
of the seller to claim the payment of the purchase-money.
The use of the word “forthwith” shows that the goods
ought to have been, and that the parties intended that

(q) Ibid. ; Tooke v. Hollingsworth,
5 T. R. 215; 2 R. R. 573; Ex
parte Chalmers, L. R., 8 Ch. App.
289.

(r) See per Cur., Martindale v.
Smith, 1 Q. B. 395; Tarling v.
Baxter,6 B. & C. 362; Ex parte
Chalmers, 8 Ch. App. 289; Sale of
Goods Act, 1893, s. 41.

(8) Lickbarrow v. Mason, 2 T. R.
63; Sale of Goods Act, 1898, ss.
39, 44.

(1) Whitehead vy. Anderson, 9 M.

& W. 518.

(uv) Edwards v. Brewer,2 M. &
W. 375; Kendal v. Marshall, 11
Q. B. D. at p. 365, per Brett, M. R.
See also Sale of Goods Act, 1893,
s. 45.

(v) Sale of Goods Act, 1893,
s. 48, sub-ss. (1), (4); see also
Wentworth v. Outhwate,10 M. &
W. 452; Kemp v. Falk, 7 App. Cas.
at p. 581, per Lord Blackburn; Le-
mond v. Davall, 9 Q. B. 10380; 16
L. J., Q. B. 186.

27

Seller’s lien
during pos-
session.

His right of
stoppage 7
transitu.

When goods
are held to be
an transitu.

Effect of
stoppage in
transitu.

Goods to be
delivered be-
fore payment.
28

‘When time of
delivery is
not fixed to a
day.

Goods to be
paid for be-
fore delivery.

Renunciation
of contract.

Price directed
to be sent by
post.

Post-office
order.

CONTRACTS CONCERNING HORSES, ETC.

they should be, delivered at some time within the fourteen
days (2. S

When there are no special indications of the limit of
time in a contract, that it should be performed “ directly ”
means that it should be performed not “within a reason-
able time” but “speedily,” or at least “as soon as prac-
ticable”” (y) ; and “as soon as possible” means ‘‘ without
unreasonable delay,” regard bemg had to the ability of
the person contracting, and the orders he has already in
hand (z). ;

If there be an express contract between the parties that
the goods shall be paid for before delivery, an action may
be brought for the money before the goods are delivered.
Thus, if A. undertakes to pay 1007. on the Ist of January
for a horse purchased by him, and B. agrees to deliver it
on the Ist of April following, B. may in the meantime
maintain an action against A. for the money, without
delivering or offering to deliver the horse (a).

Where two parties enter into a contract which is to be
performed at a future day, and before the day of perform-
ance arrives one of them gives the other notice that he
does not hold himself bound by it, the other is at liberty
to treat such renunciation as a breach of the contract,
without waiting for the arrival of the day which is fixea
for its performance (0).

If the buyer is directed to send the price by post, or if
it has been the usual practice between the parties to do
so (c), and the letter containing the money properly di-
rected (d) and posted (e) is lost, the debt is extinguished,
and the seller must bear the loss (/).

Where the defendant, in answer to a letter demanding
payment, sent a post-office order, in which the plaintiff was
described by a wrong Christian name, and the plaintiff kept
it, but did not cash it, although he was informed at the post
office he might receive the money at any time by signing it

(2) Staunton v. Wood, 16 L. T., Sale of Goods Act, 1893, s. 49.

Q. B. 486; Sale of Goods Act, (0) Danube, §c., Co. v. Xenos, 31
1893, s. 28. L.J., C. P. 284 (Ex. Ch.).

(y) Duncan v. Topham, 8 C. B. (c) Warwicke v. Noakes, Peake,
225. N. P.98; 3B. R. 653.

(2) Attwood v. Emery, 26 L. J., (@) Walter v. Haynes, R. & M.
C. P. 73. 149.

(a) See Pettitt v. Mitchell, 5 Sco. (e) Hawkins v. Rutt, Peake, N.
N. R. 740; Lhorpe v. Thorpe, 1 P. 248.

Lord Raym. 665; 1 Salk. 171; (f) Kington v. Kington, 11 M. &
Dunlop vy. Grote,2 C. & K. 158; W. 288.
DELIVERY AND PAYMENT.

in the name of the payee, it was held by the Court of
Exchequer that this was no evidence of payment (g).

Where there is a sale of specific chattels, and a bill is
given in payment, though the vendor has then lost his lien
in the strict sense of the word, yet, if afterwards an in-
solvency happens, and the bill is dishonoured, then the
vendor has a right somewhat analogous to that which a
vendor has over goods in ¢ransitu, and if they are still in
his hands, he has a right to withhold the delivery of the
goods (h).

If a creditor employs an agent to receive money from a
debtor, and the agent, instead of so doing, writes off a debt
due from himself to the debtor, his debtor is not thereby
discharged, unless indeed there is a subsequent ratification
by the creditor of the act of his agent (/).

If a creditor is offered cash in payment of his debt, or a
cheque upon a banker from an agent of his debtor, and he
prefers the latter, this does not discharge the debtor if
the cheque be dishonoured; although the agent fails with
a balance of his principal in his hands to a larger amount (A).
The creditor must, however, present the cheque within a
reasonable time (/).

If a creditor prefers a bill of exchange accepted by a
stranger to ready money from his debtor, he must abide
the hazard of the security he takes (m).

By the order of the creditor, a debt may be paid toa
third party, who, if he take payment in any other way
than in money, or if he give the debtor further time,
without the knowledge of the creditor, he does it at his
peril (x).

Sunday Dealing.

By a law of King Athelstan, all “merchandizing on the
Lord’s Day ”’ is prohibited, and it is thus laid down: “ Die
autem Dominico nemo mercaturam facito ; id quod si quis
egerit, et ipsa merce, et 80 preterea solidis mulctator” (0).

And by 29 Car. 2, ¢. 7, 8. 1, which is “ An Act for the
better Observation of the Lord’s Day,” it is enacted, “that

(9) Gordon v. Strange, 1 Ex.477. 515; 11 R. R. 788.

(h) Per Crompton, J., Griffiths v. (2) Hopkins v. Ware, L. B., 4
Perry, 28 L. J., Q. B. 204. See Ex. 268; 38 L. J., Ex. 147.
also Sale of Goods Act, 1893, ». 39, (m) See per Lord Ellenborough,
sub-s. (2). Everett v. Collins, 2 Camp. 516; 11
(i) Underwood v. Nichols, 25 L. RB. R. 785.
J., C. P. 79. (n) Smithy. Ferrand, 7B. & C.19.

(4) Everett v. Collins, 2 Camp. (0) 2 Inst. cap. 31, p. 220.

29

Dishonoured
bill.

Writing off
debt by agent
to agent.

Banker’s
cheque.

Bill of
exchange.

Debt paid to
a third party.

Law of King
Athelstan.

Statute of
Charles 2.
30

Farmers not
within
statute.

Sale by a
horsedealer.

CONTRACTS CONCERNING HORSES, ETC.

no tradesman, artificer, workman, labourer, or other person
whatsoever, shall do or evercise any worldly labour, business
or work of their ordinary callings upon the Lord’s Day or
any part thereof (works of necessity and charity only
excepted), and every person being of the age of fourteen
years or upwards offending in the premises shall for every
such offence forfeit the sum of 5s.; and that no person or
persons whatsoever shall publicly ery, show forth or expose
to sale any wares, merchandizes, fruit, herbs, goods or
chattels whatsoever upon the Lord’s Day or any part
thereof, upon pain that every person so offending shall
forfeit the same goods so cried or showed forth, or exposed
to sale.”

By the 34 & 35 Vict. c. 87 (continued by the Expiring
Laws Continuance Act), s. 1, no prosecution or other pro-
ceeding shall be instituted for the contravention of this Act,
but with the consent in writing of the chief officer of the
police of the police district in which the offence is com-
mitted, or of two justices of the peace, or of the stipendiary
magistrate having jurisdiction in the place where such
offence is committed,

A farmer has been held not to be within section 1 of the
29 Car. 2,c. 7, on the ground that he is not “a tradesman,
artificer, workman, or eyusdem generis with any of these” (p).

A horsedealer cannot maintain an action upon a contract
for the sale and warranty of a horse made by him upon a
Sunday. The law on this subject was laid down by the
Court of King’s Bench in Fennell v. Ridler (q) on a motion
for a new trial, and Mr. Justice Bayley delivered the
following judgment: “This was an action upon the
warranty of a horse. The plaintiffs were horsedealers, and
the horse was bought and the warranty given on a Sunday :
and the only question was, whether, under the 29 Car. 2
c. 7, the purchase was illegal, and the plaintiffs precluded
from maintaining the action. That the purchase of a horse
by a horsedealer 1s an exercise of the business of jis ordinary
calling no one can doubt. The act does not apply to all
persons, but to such only as have some ordinary calling. In
Drury v. De la Fontaine (vr) Lord Mansfield, C. J. (after
the Court had taken time to consider), laid it down, that if
any man in the exercise of his ordinary calling make a con-

(p) R. v. Silvester, 33 L. J., M. (r) Drury v. De la Fontaine, 3 B.
OT inciatl and another v. Ridler, s a 7 bal ee tat Parke, J.,
i ¥ ee her v. Ridler, mith v. Sparrow, 4 Bing. 88.
SUNDAY DEALING.

tract on a Sunday, that contract would be void (and the
case before him was a private contract for the purchase of a
horse), but he showed that that case was not within the
statute, because no one of the parties was in the exercise of
the business of his ordinary calling. His expression, that
the contract would be void, probably meant only that it
would be void so as to prevent a party who was privy to
what made it illegal from suing upon it in a Court of law,
but not so as to defeat a claim upon it by an innocent
party ; and so it was considered by this Court in Bloxsome
v. Williams”? (s).

Where neither parties are horsedealers, a contract beween
them for the sale of a horse is good, though made on Sun-
day; and this was recognized by Mr. Justice Bayley in the
last case, as having been distinctly laid down by Lord
Mansfield in Drury v. De la Fontaine.

Where a bargain for some cattle was made, and the price
agreed on, on a Saturday evening, subject to the defendant’s
approval of the beasts upon inspection next morning; and
accordingly on Sunday the defendant inspected and approved
them, and afterwards kept them for some time and pro-
mised to pay for them; it was held, that although the
original contract was on Sunday, yet as they continued in
the possession of the defendant, who afterwards promised to
pay for them, this subsequent promise was sufficient on a
quantum meruit, or as a ratification of the agreement of the
Saturday (¢).

But a party cannot sue on a breach of warranty if he
take it on a Sunday from a person he knows to be a horse-
dealer. However, where an innocent party brings an action
on the breach of a warranty given to him by a /orsedealer
on a Sunday, it is not competent for the defendant to set
up his own breach of the law as an answer to the action ;
and this was so held in the case of Bloxsome v. Williams (1),
where an action was brought on the warranty of a horse,
and an objection was taken that it had been given on a
Sunday. It appeared that the defendant was a coach
proprietor and horsedealer, and that the plaintiff's son was
travelling on a Sunday in the defendant’s coach, and while
the horses were changing he made a verbal bargain with
the defendant for the horse in question, for the price of
thirty-nine guineas; the latter warranted the horse to be

(s) Bloxsome v. Williams, 1 (t) Williams v. Paul, 6 Bing. 653.
Taunt. 135; &. ¢., 3 B. & C. 282. (uw) See note (s), ante.

31

By an ordinary
person.

Subsequent
ratification of
a contract.

Breach of
warranty
given ona
Sunday.
CONTRACTS CONCERNING HORSES, ETC.

sound, and not more than seven years old. The horse was
delivered to the plaintiff on the following Tuesday, and the
price was then paid; there was nothing in evidence to show
that the plaintiff’s son Anew at the time when he made the
bargain that the defendant exercised the trade of a horse-
dealer, The horse was unsound, and seventeen years old.
It was objected, on the part of the defendant, that the
plaintiff could not recover, on the ground that the bargain
having been made on a Sunday was void within the
29 Car. 2, ¢. 7, s. 2. The learned judge overruled the
objection, and the plaintiff obtained a verdict for the price
of the horse. The Court of King’s Bench discharged a
rule for a new trial, and Mr. Justice Bayley said, “In this
case there was no note in writing of the bargain, and on
the Sunday all rested in parol, and nothing was done to
bind the bargain. The contract, therefore, was not valid
until the horse was delivered to and accepted by the
defendant. The terms on which the sale was afterwards
to take place were only specified on the Sunday, and those
aa were incorporated in the sale made on the subsequent
ay.”
CHAPTER, II.
HORSEDEALERS, REPOSITORIES AND AUCTIONS.
Horsedealer.

A horsedealer, strictly, is a person who by his traffic “ dis-
tributes” horses(a). And by 29 Geo. 3, ¢ 49, 8. 5
(repealed by the Statute Law Revision Act, 1861), he was
clearly defined to be a person who “seeks his living by
buying and selling horses ”’ (a).

It has not however been decided, whether a person who,
for commission, sells by auction or private contract the
horses of others, is a horsedealer within the Assessed Tax
Acts.

The Judges at Serjeants’ Inn held the proprietor of
Aldridge’s Repository to be a horsedealer. When the case
came before the Court of Exchequer, Mr. Baron Parke,
with whom Mr. Baron Alderson agreed, said, ‘I am by no
means prepared to say that the decision of the Judges, as
to the construction of the word ‘horsedealer’ in these
statutes, was wrong; if I were forced to give an opinion, it
might be in accordance with theirs” (3).

The duty which was formerly payable by a horsedealer
has been repealed by the 37 Vict. c. 16, s. 11, which pro-
vides that duties on licences for exercising or carrying on
the trade of Horsedealers shall cease to be payable.

By s. 19, sub-s. (5) of the Customs and Inland Revenue
Act, 1869 (32 & 33 Vict. c. 14), it shall not be necessary
for a licence to be taken out by any horsedealer who shall
have made entry of his premises in accordance with s. 28
of that Act, for any servant employed by him at such
premises in the course of his trade, other than a servant
employed to drive a carriage with any horse let to hire for
any period exceeding twenty-eight days; provided that
such horsedealer shall have complied with all the provisions

contained in the said section.
(a) Allen v. Sharp, 2 Exch. 357. (b) Allen v. Sharp, 2 Ex. 352,
366.

0. D

Definition of
a horse-
dealer.

A seller on
commission.

The gropEiGior
of Aldridge’s.

No duty
payable by
horsedealer.

Exemption
from licence
for servants.
34

Entry of
premises.

An auctioneer.

Extent of
authority

HORSEDEALERS, REPOSITORIES AND AUCTIONS.

By s. 28, “every person who exercises or carries on the
trade of a horsedealer or of a livery stable keeper, or who
lets any horse for hire, or who keeps any horse to be used
for drawing any public stage or hackney carriage, may, if
he shall think ft, deliver to an officer of inland revenue
acting in the parish or place in which his premises are
situated an entry in writing, signed by such person, con-
taining a description of the premises and of the purpose for
which he uses or intends to use them; and every person
who shall have delivered any such entry shall cause to be
legibly painted upon some conspicuous part of the premises so
entered, or upon a board affixed thereto, his christian name
and surname, with the addition of such other words as
shall denote the particular trade or business, or trades or
businesses (if more than one), carried on by him; and such
person shall also allow any officer of inland revenue at any
reasonable time to inspect the entered premises; and if
any person who shall have delivered any such entry as
aforesaid shall neglect to comply with the provisions of this
section, or any of them, he shall forfeit a penalty of twenty
pounds.”

Repositories and Auctions.

An auctioneer is solely the agent of the seller of the
goods, until the sale is effected, and then he becomes also
the agent of the buyer for particular purposes (c). For
when he signs the printed particulars of sale, he signs
them as the agent of the purchaser (d). But as soon as
the auction is over, the auctioneer loses his distinctive
attributes ; and to sales afterwards effected by him, the
rules of ordinary sales alone are applicable (e).

The owner may at any time before the contract is com-
plete, revoke the auctioneer’s authority, but he does so at
his peril; and if the auctioneer has contracted any lability
in consequence of the employment and revocation, the
auctioneer is entitled to be indemnified by the owner; but
if an auctioneer not having authority from the owner to
sell property without reserve, undertakes to do so, he is
liable on his undertaking (/').

(c) Story on Sales, 61; Williams Blake, 13M. & W. 619.
vy. Millington, 1 H. Bla. 81; 2 (e) Alews v. Carr, 26 L. J., Es.
R. R. 724; Emmerson v. Heelts,2 39; Marsh v. Jeif, 3 F. & BF. 234,
Taunt. 38; 11 R. R. 520. (f) Warlow v. Harrison, 1 EB. &
(d) See por Rolfe, B., Eden v. EK. 295; 29L. J., Q. B. 14, Ex. Ch.
REPOSITORIES AND AUCTIONS,

An auctioneer intrusted with goods for sale by public
auction has no implied authority to warrant them ().

If an auctioneer has notice that property intrusted to
him for the purpose of sale does not belong to his principal,
and yet continues to sell, he is personally lable for the
produce of the sale (k) ; and in such case the true owner
of the property is entitled to recover the real value of
the property sold, and not merely what it fetched at the
auction, as that sum could not be assumed to be its real
value (7).

An action lies against an auctioneer employed to conduct
a sale for negligence in his management of it. As where
the seller had to make the purchaser compensation, in conse-
quence of the property having been improperly described
by the auctioneer who had been employed to prepare par-
ticulars, and sell the property (4).

‘Where an auctioneer, by an unauthorized sale, deprives
another of his property permanently or for an imdefinite
time, he is liable to an action for conversion (/). The case
of Cochrane v. Rymiil (m) is an instance of wrongful conver-
sion by an auctioneer. In that case the plaintiff by agree-
ment let some cabs on hire to one Peggs, who took them to
the defendant, who was an auctioneer, and obtained an
advance on them. The defendant by Peggs’ instructions,
and without any notice of the plaintiff's property in the
goods, subsequently sold them by auction, and having re-
couped himself for his advance, commission, and expenses,
handed over the balance to Peggs; and it was held by the
Court of Appeal (affirming the judgment of Lord Coleridge,
C.J.), that the plaintiff was entitled to recover damages
from the defendant for conversion of the goods, and Bram-
well, L.J., in the course of his judgment said, “It is, no
doubt, a very hard case for the defendant who has acted
innocently throughout in the matter; but setting aside
the hardship of the case, the law applicable to it is quite
clear. Here is Peggs, a man who is not the true owner of
these goods, but appearing to act as such, but who has no

9) Payne v. Lord Leconfield, 51 RR. 370; and see Torrance v. Bolton,

L. J., Q. B. 642; 30 W. R. 814. L. B.. $8 Ch. 118; 42 L. J., Ch.
(h) Hardacre v. Stewart, 5 Esp. 177.

103; Davis v. Artingstall, 49 L. J., (2) Hiort v. Bott, L. R., 9 Ex.

Ch. 609; 42 L. T., N.S. 507; 29 86, 89; 43 L. J., Ex. 81; 30 L. T.

W. R. 137. N. 8. 25; 22 W. R. 414.
(i) Davis v. Artingstall, ubi (m) 40 L. T., N. 8S. 744; 27
supra. W. R. 776.

(4) Parker v. Farebrother, 2 W.
D2

35

Not to
warrant.

To sell for
true owner.

Liable to an
action for
negligence.

Or for
conversion.
36

Selling horses
comprised in
bill of sale.

Horse sent to
a repository.

HORSEDEALERS, REPOSITORIES AND AUCTIONS.

power whatever to sell, takes them to the defendant and
gets a loan from him on them. The defendant keeps them
and finally sells them in such a way as to pass the property
in them to the buyers, and if that is not a conversion, then
I think there can be no such thing. Supposing a man were
to come into an auction yard holding a horse by the bridle
and to say, ‘I want to sell my horse: if you will find a
purchaser I will pay commission.’ And the auctioneer says,
‘ Here is a man who wants tosell a horse; will anyone buy
him?’ If he then and there finds him a purchaser and
the seller himself hand over the horse, there could be no
act, on the part of the auctioneer, which could render him
liable to an action for conversion. But, looking at this
case, there is a clear dealing with the property and exer-
cising dominion over the chattel, and a delivery of it by
the defendant to another person to do what he likes with
it.”

But where the plaintiffs were the holders of a bill of sale
including certain horses and harness: and the grantor of
the bill of sale, without the plaintiff's knowledge, took the
horses and harness to the defendant’s repository for sale by
auction and they were entered in the catalogue, the defen-
dant knowing nothing of the bill of sale; but before the
auction the grantor of the bill of sale sold the horses and
harness by private contract in the defendant’s yard, and the
purchase-money was paid to the defendant, who deducted
his commission and paid the balance to the seller, the horses
and harness being delivered to the purchaser; it was held
that the defendant was not guilty of conversion (i). For
the defendant had received the horses and harness from the
grantor of the bill of sale, and had delivered them back to
the person to whom the grantor of the bill of sale had given
a delivery order; he had not claimed to transfer the title,
and he had not purported to sell ; all the dominion he exer-
cised over the chattels was to re-deliver them to the man,
the person from whom he had received them had told him
to re-deliver them (k).

Where a horse is sent to a common repository, for the
sale of horses, an authority to sell is implied, although no
authority was ever given in fact, and the owner will be

(i) National Mercantile Bank v. [1892] 2 Ch. 172; 60 L. J., Ch.
Rymill, 44 L. T., N.S. 767—C. A. 368; 64 L. T. 411; 39 W. RB. 621 ;

(&) Ibid., per Bramwell, L. J. Consolidated Co. v. Curtis, [1892] 1
See also Turner v. Hockey, 56L.J., Q. B.495; 61 L. J.,Q. B. 325 ; 40
Q. B. 301; Barker v. Furlong, W.R. 426.
REPOSITORIES AND AUCTIONS.

bound by a sale to a bond fide purchaser, although made
without his express consent (J).

Where a horse is sold at a repository, the possession is
in the auctioneer, and it is he who makes the contract.
the horse should be stolen he may maintain an indictment,
and he has such a special property as to maintain an action
against the buyer for goods sold and delivered (m), but not
in a case where the right of a third person intervenes, and
is established (x). But where, as in the north of England,
there is a sale by auction of horses and cattle on the owner’s
premises, it is doubtful whether the auctioneer has such an
interest in them as to recover the price (0).

An auctioneer can set up the jus terti, if he defends the
action upon the right and authority of the third person, to
a claim for the proceeds of a sale of goods, which he has
been employed to sell by auction by a person who had
gained possession of them by an illegal distress ().

An auctioneer may interplead where he has sold goods,
and the proceeds of the sale are claimed by a third
party (g); and it seems that he is entitled to do so not-
withstanding that he claims a lien on the proceeds of the
sale for his commission, for in such cases he claims no
interest in the corpus of the property (r). But where the
claims are not co-extensive, an auctioneer has no right to
interplead. In the case of Wright v. Freeman (rr) the
defendant, the proprietor of a horse repository, sold there
by public auction a horse to the plaintiff, warranted quiet
to ride and in harness, but subject to a condition, by which,
if considered by the buyer incapable of working from any
infirmity or disease, it might be returned on the second
day after the sale, and the matter determined by veterinary
surgeons according to the terms provided for in such con-
dition. The horse was returned accordingly by the plain-
tiff, who demanded to have back the money he had paid
for the purchase, and this being refused, he brought an

(2) See Pickering v. Busk, 15
East, 38, 45; 18 R. R. 364.

(m) Williams v. Millington, 1
H. Bla. 85; 2 R. R. 724; Robinson
v. Rutter, 24 L. J., Q. B. 250.

(n) Dickenson vy. Naul, 4 B. & Ad.
638.

(0) Seeper Wilson, J., Williams v.
Millington, 1H. Bla. 86; 2 R.R.724.

(p) Biddle v. Bond, 6 B. & 8.
225; 34 L. J., Q. B. 137.

(q) Best v. Hayes, 32 L. J., Ex.

129.

(r) Ibid., per Martin, B. In
this case the Court of Exchequer
refused to follow the decision in
Chancery in Mitchell v. Hayne (2
Sim. & S. 63), where it was held
that an auctioneer, in such a case,
could not file a bill of interpleader.

(rr) 48 L. J., C. P. 276; 40
L. T., N.S. 184; ibid. 358—C.A.

37

Auctioneer’s

Tf Possession.

An auctioneer
can set up
Jus tertit.

Interpleader
by auctioneer.
38

Goods privi-
leged from
distress.

His right to
remain on the
premises.

Auctioneer or
clerk agent of
both parties.

HORSEDEALERS, REPOSITORIES AND AUCTIONS.

action against the defendant for damages for breach of the
warranty, and the party who had placed the horse at the
repository for sale, claimed of the defendant the proceeds of
the sale, stating that the horse had left the repository
perfectly sound; it was held that the defendant was not
entitled to an interpleader order.

Goods sent to an auctioneer to be sold on premises
occupied by him are privileged from distress for rent (s) ;
although he may sell in a place let to him merely for
the occasion, or by a person without authority, or the
occupation has been acquired by the auctioneer by any act
of trespass (ft).

An auctioneer, who is employed to sell goods by public
auction, has not such an interest as will make the licence
to enter the premises irrevocable. Therefore, where the
owner of the premises revoked his consent to the auc-
tioneer remaining there, it was held that he had no right
to continue there, though he had incurred expenses in
allotting the goods, and though he remained only to
complete the sale by delivering the goods to the pur-
chasers (2).

After a sale is effected, the auctioneer may in general
be considered as the agent and witness of both the parties
to a contract; but a difficulty arises in the case where
the auctioneer sues as one of the contracting parties (),
because the agent, whose signature is to bind the defen-
dant, must not be the other contracting party upon the
record (y). However, an entry made in a sale book by
the auctioneer’s clerk who attends the sale, and as each
lot is knocked down names the purchaser aloud, and on a
sign of assent from him makes a note accordingly in the
book, is a memorandum in writing by an agent within
section 4 of the Sale of Goods Act, 1893; for the clerk is
not identified with the auctioneer (who sues), and in the
business which he performs of entering the names, &e.,
he is impliedly authorized by the persons attending the sale
to be their agent (z).

(s) Adams v. Grave, 1 C. & M. (y) Farebrother v. Simmonds, 5 B.
380; Williams vy. Holmes, 22L.J.. & A. 333. And see Sharman v.
Ex. 283. Brandt, L. R., 6 Q. B. 720; 40

(t) Brown v. Arundell,10 0.B. LL. J.,Q. B. 312; 19 W. R. 936
54; 8. C.16 L. T. 126. Ex. Ch. :

(«) Taplin v. Florence, 10 C. B. (2) Bird v. Boulter, 4 B. & Adol.
744, 443. See alsoSimsv. Landray, [1894]

(x) Wright v. Dannah,2 Camp. 2 Ch. 318; 63 L. J., Ch. 535; 70
203; 11 R. R. 693. L. T., N. 8. 530; 42 W. R. 621.
REPOSITORIES AND AUCTIONS,

But if the purchaser’s name be signed to a catalogue, it
must be connected with or refer to the conditions of sale to
make the contract valid (a): and it is not sufficient if they
are even in the same room, so long as they are not actually
attached to the catalogue, or clearly referred to in it; and
if during the sale they get separated, the signatures made
after separation are unavailing (6).

It is a useful and proper general rule that an auctioneer
by parol explanation at the time of sale shall not be
suffered to vary from the terms of the printed particulars.
This rule is attended with no hardship, because it would be
easy to obviate any difficulty in case the article sold be
different from the description ; Gunnis v. Echart (c), Powell
v. Edmunds (d), and many other cases collected in Mr.
Phillip’s book on evidence, show the principle to be, that a
written instrument signed with the purchaser’s name is the
instrument at which we are to look to see what is the con-
tract between the parties (e).

But when the contract is not in writing, a mistake in
the catalogue may be explained by the auctioneer. Thus
where an auctioneer brought an action to recover the price
of an article under the value of 102, which had been sold
by him, and described in the written catalogue of sale as
being of silver ; it was held that evidence was receivable
to show, that before the article was put up for sale, the
auctioneer without making any alteration in the catalogue,
stated publicly from his box, in the hearing of the defen-
dant that the catalogue was incorrect, and that the article
would only be sold as plated, subsequently to which the
defendant bid for it (/).

By the conditions of sale at repositories and public
auctions a specified short time is usually allowed, within
which the purchaser must give notice of any breach of
warranty ; and if he neglect to do so, he has no remedy
unless such condition has been rendered inoperative by
fraud or artifice. This subject was fully considered by the
Court of King’s Bench in the following case :—A. horse
was bought by private contract at a repository, warranted

(a) Hinde v. Whitehouse,7 East, 629; 26 W. R. 827.
568; 8 R. R. 676. (c) Gunnis v. Echart, 1 H. Bl.
(b) Kenworthy v. Schoifield,2 B. 289; 2 R. R. 769.
& C. 945. See also Pierce v. Corf, (@) Powell v. Edmunds, 12 East, 6;
L. RB. 9 Q. B. 210; 48 L. J., 11 R. RK. 316.
Q. B. 62; 29 L. T., N. 8. 919; 22 (e) Shelton v. Livius, 2C. & J. 416.
W. R. 299; Rishton v. Whatmore, (f) Eden v. Blake, 13 M. & W.
L. R., 8 Ch. D. 467; 47 L.J., Ch. 614.

39

Purchaser’s
name signed
to a catalogue.

Printed
particulars
of a sale.

An incorrect
catalogue.

A limited
warranty.
40

Where it ap-
plies only to
soundness.

HORSEDEALERS, REPOSITORIES AND AUCTIONS.

sound. At the time of sale there was a board fixed on the
wall of the repository having certain rules painted upon
it, one of which was that a warranty of soundness then
given, should remain in full force until noon of the day
following, when the sale should become complete and the
seller’s responsibility terminate, unless a notice and veteri-
nary surgeon’s certificate of unsoundness were given 1n
the meantime. The rules were not particularly referred to
at the time of this sale and warranty. The horse proved
unsound, but no complaint was made till after twelve on
the following day. The unsoundness was of a nature not
likely to be immediately discovered. Some evidence was
given to show that the defendant knew of it, and the horse
was shown at the sale under circumstances favourable for
concealing it. After verdict for the plaintiff, it was held
that there was sufficient proof of the plaintiff having had
notice of the rules at the time of sale to render them
binding on him; also that the rule in question was such as
a seller might reasonably impose, and that the facts did not
show such fraud or artifice in him, as would render the
condition inoperative; and Mr. John Littledale observed,
“The warranty here was as if the vendor had said, ‘after
twenty-four hours I do not warrant ;’ such a stipulation is
not unreasonable” (9).

If a horse sold at a public auction be warranted sound
and six years old, and it be one of the conditions of sale
that it shall be deemed sound unless returned in two days,
this condition applies only to the warranty of soundness.
Therefore, where a horse sold with such warranty was dis-
covered to be twelve years old ten days after sale, and was
then offered to the seller, who refused to take him, it was
held by the Court of King’s Bench that an action might be
maintained by the buyer against the seller, and Lord
Kenyon said, “ The question turns on the meaning of this
condition of sale, and I am of opinion that it must be
confined solely to the circumstance of unsoundness. There
is good sense in making such a condition at public sales,
because, notwithstanding all the care that can be taken,
many accidents may happen to the horse between the time
of sale and the time when the horse may be returned, if no
time were limited. But the circumstance of the age of the
horse is not open to the same difficulty ”’ (”).

(9) Bywater v. Richardson, 1 A. (h) Buchanan vy. Parnshaw, 2 T.
& E. 5608; 3N. & M. 748; Mes- RR. 746.
nard vy. Aldridge, 3 Esp. 271.
REPOSITORIES AND AUCTIONS.

By the tules of some repositories every horse sold, war-
ranted quiet in harness, is, in cases of dispute, to be tried
by an impartial person; and the expense of trial, in case
the horse does not answer his warranty, is to fall on the
seller. The keeper of the repository has a specific lien on
the horse until such expense be paid (7).

Where the auctioneer declares that the conditions of a

41

Trial of a
horse war-
ranted quiet
in harness.

Notice of the

sale by auction are as usual, there is a sufficient notice of ‘ditions of

them to purchasers (k), where they are printed and posted
up in a conspicuous part of the auction-room. Thus, where
an action on the case was brought on the warranty of a
horse, it appeared that the horse was sold by auction at the
defendant’s repository, and warranted sound. ‘The sale
took place on the Wednesday. At the time of the sale, the
auctioneer announced that the conditions of the sale were
as usual. These conditions of sale were proved to be con-
tained in a printed paper pasted up under the auctioneer’s
box, and by one of them all horses purchased there, in case
of any unsoundness being discovered, were required to be
returned before the evening of the second day after the sale.
The horse in question was not returned till the Saturday.
‘When returned by the plaintiff, he was informed that it
was too late, as he ought, pursuant to the conditions of sale,
to have returned him on the evening of Friday. It was
contended that there was no evidence of notice of the con-
ditions of sale sufficient to bind the plaintiff. But Lord
Kenyon (in summing up) said—“ In this case it is proved
that printed particulars of the sale are pasted up in the
public sale room under the auctioneer’s box. In the case
of carriers, who advertise that they will not be liable for
goods lost above the value of 5/., unless entered as such,
the posting up of a bill in the coach office to that effect has
been held to be sufficient. I therefore think the same mode
being adopted here gives the same degree of notice to all
persons who come to this sale, and that it is a sufficient
notice of the conditions under which the horses are sold.”
‘With respect to the main point, when parties enter into
a special agreement, they must adhere to the terms of it.
Here there is a condition that the party purchasing must

(i) Hardingham v. Alien, 5 C.B. was ignorant of the articles and
797. conditions of sale. See Laing v.
(%) By the law of Scotland, a Hain, 28.M. &P. 390. (Court of
purchaser at a public auction can- Sess. Sco.)
not be allowed to plead that he

sale.
42

Notice of
particulars.

Goods put up
in lots.

Where a
bidder may
retract.

Sale “with-
out reserve.”

HORSEDEALERS, REPOSITORIES AND AUCTIONS.

return the horse within two days, which he has not done;
I therefore think the plaintiff must be nonsuited ” (/).

But when property is sold in lots described in particulars
of sale, a vendee is only affected with notice of what con-
cerns the lots which he purchases, and is not to be taken as
having read all the particulars of all the lots (m).

Where goods are put up for sale by auction in lots, each
lot is prima facie deemed to be the subject of a separate con-
tract of sale (x). But the making by the parties of a
written contract or memorandum embodying several sales is
relevant to prove an intention that the whole transaction
shall be one entire contract (0). .

“A sale by auction is complete when the auctioneer
announces its completion by the fall of the hammer, or in
other customary manner. Until such announcement is made
any bidder may retract his bid” (00). The reason for this
is that the auctioneer is the agent of the vendor, and the
assent of both parties is necessary to make the contract
binding, and that is signified on the part of the seller by
knocking down the hammer. Every bidding is nothing more
than an offer on one side, which is not binding on either
side till it is assented to (p).

Where a horse is to be sold ‘‘ without reserve,’ and the
vendor buys it, the highest bond fide bidder is entitled to
recover damages from the auctioneer. In the case of
Warlow v. Harrison (q), the sale was stated to be ‘“ without
reserve,” and one of the printed conditions was, “ any lot
ordered for this sale, and sold by private contract by the
owner or advertiser ‘without reserve,’ and bought by the
owner, to be lable to the usual commission of 5/. per cent.”
There was also the usual condition that the highest bidder
should be the buyer. After a bond fide bid by a third per-
son, the owner advanced on the bidding, and the lot was
knocked down to him. The Court of Qucen’s Bench held
that the owner could not claim the lot as sold to the

(2) Mesnard vy. Aldridge, Esp. 195

271.
(m) Curtis v. Thomas, 38 L. T.,
N.S. 664, V.-C. H.

(x) Sale of Goods <Act, 1893,
s. 58, sub-s. (1). See also Emmer-
son vy. Heelis, 2 Taunt. 38; 11 R.R.
520; Roots v. Dormer, 4 B. & Ad.
77.

(0) Dykes y. Blake, 4 B. N.C.
463; Bigg v. Whisking, 14 C. B.

(00) Sale of Goods Act, 1893,s. 58,
sub-s. (2).

(p) Payne v. Cave, 3 T. R. 148;
1 RK. R. 679; and see Routledge v.
Grant, 4 Bing. 653; Head v. Diggon,
3M. & R. 97.

(gq) 29 L.J.,Q. BL. 14; 1E. &
E. 295—Ex. Ch. See also Sale of
Goods Act, 1893, s. 58, sub-ss. (3),
(4), post, p. 45.
REPOSITORIES AND AUCTIONS.

auctioneer, against whom the action was brought, and that
they were not called upon to say whether there was any or
what remedy on the conditions of sale against the vendor,
who violated the condition that the article should be bond
fide sold “ without reserve,” but they were clear that the
bidder had no remedy against the auctioneer, whose
authority to accept the offer of the bidder had been deter-
mined by the vendor before the hammer had been knocked
down. But in the Exchequer Chamber, to which this case
was carried, three Judges held that the purchaser was
entitled to recover damages, for they thought that the
highest bond fide bidder at an auction may sue the auc-
tioneer as upon a contract that the sale shall be “ without
reserve,” and that the contract is broken upon a bid being
made by or on behalf of the owner, whether it be during
the time when the property is under the hammer, or it be
the last bid on which the property is knocked down. They
did not doubt that the owner at any time before the contract
is legally complete might revoke the auctioneer’s authority.
As to the conditions, they held that the owner could not be
the buyer; and that the auctioneer ought not to have taken
his bid, but to have refused it, stating as his reason that
the sale was “without reserve.” Inclining to differ from
the Queen’s Bench, they rather thought the bid of the
owner was not a revocation of the auctioneer’s authority.
The other two Judges agreed, but founded their judgment
upon the evidence that the auctioneer had not authority to
sell except “ without reserve,” and thought that there ought
to be a count added by way of amendment, stating an
undertaking by the auctioneer that he had authority to sell
‘without reserve,” and a breach of that undertaking.

But where an auctioneer advertised in the London papers
that a sale by auction would take place on a particular day
in a country town, and also circulated catalogues specifying
the articles to be sold; and a person attended the sale in-
tending to buy certain articles specified in the catalogue,
but on the day of sale they were withdrawn by the
auctioneer; it was held that there was no implied contract
by him to indemnify the intended purchaser against the ex-
pense and inconvenience that he had incurred, as the
advertising was a mere declaration of intention to sell (7).

A statement that a horse is the property of the vendor,

(r) Harris v. Nickerson, L. R., 8 Q. B. 286; 42 L. J., Q. B. 171;
28 L. T., N. 8. 410; 21 W. R. 635.

43.

Effect of ad-
vertisement.

Warranty of
ownership.
44

Auctioneer
not disclosing
his principal.

Liability for
non-delivery.

Puffing.

HORSEDEALERS, REPOSITORIES AND AUCTIONS.

made by himself or agent, is a sufficient warranty of the
ownership, and an assertion by an auctioneer that all the
horses in a sale are the bond fide property of the person
whose stud he has advertised as selling, would vitiate the
purchase of a horse belonging to another party, made on the
faith of that representation, such horse having been put
into the sale without notice; because the purchaser would
probably give a much higher price for a horse belonging to
the stud in question, than for one without a character (¢).

Where an auctioneer sells a commodity without saying
on whose behalf he sells it, in such case the purchaser is
entitled to look to him personally for the completion of the
contract (r), and the same rule, according to the general
law of principal and agent, applies to purchasers (s).

An auctioneer is not in the position of an ordinary agent,
but may be personally liable for non-delivery of goods, even
though he sells for a disclosed principal, and although a
condition of sale, by which goods are to be cleared out by
the purchaser within a given time, has not been complied
with, at all events where such condition is not a condition
precedent (f).

When a horse is bid up by a puffer, the seller, in the
absence of any notification that the sale is subject to a right
to bid on his behalf, cannot recover the price, as the sale is
void ; and in such case it isimmaterial whether the sale was
under the usual condition that the highest bidder shall be
the purchaser, or “without reserve,” or subject to a
reserved price.

The rule that a sale by auction is vitiated by the secret
employment of a puffer was fully recognized in a series of
decisions previously to the Sale of Goods Act, 1893 (wu),
and by s. 58, sub-ss. (3), (4) of that Act is now declared
in the following terms :—

(q) Beawell v. Christie, Cowp. (u) See Bexwell v. Christie, Cowp.

397. See also Hill v. Gray, 1 Stark.
N. P. C. 4384; 18 R. R. 802.

(r) Hanson v. Roberdeau, 1 Peake,
163; Franklin v. Lamond, 4 ©. B.
637; 16 L. J., C. P. 221.

(s) As to principal and agent, see
the rule in Zhompson v. Davenport,
9 B. & C. 86. See also Williamson
y. Barton, 7 H. & N.899; 31 L. J.,
Ex. 170; 10 W. R. 321.

(t) Woolfe v. Horne, 2 Q. B. D.
355; 46 L. J.,Q. B. 534; 36 L. T.,
N.S. 705; 25 W. R. 728.

396; Howard v. Castle, 6 T. R.
634; 38 R. R. 296; Crowder v.
Austin, 3 Bing. 368; 11 Moore,
283; White v. Collier, M. & M.
126; Thornett v. Haines, 15 M. &
W. 367; 15 L. J., Ex. 230; Green
v. Baverstock, 14 C. B., N. 8. 204;
82 L. J., C. P. 181; Mortimer v.
Beil, L. R.,1 Ch. 10; 35 L. J., Ch.
25; Gilliat v. Gilliat, L. R., 9 Eq.
60; 39 L. J., Ch. 142; Parfitt v.
Jepson, 46 L. J., C. P. 529; 36
L. T. 251.
REPOSITORIES AND AUCTIONS.

(3) “ Where a sale by auction is not notified to be sub-
ject to a right to bid on behalf of the seller, it shall not be
lawful for the seller to bid himself or to employ any person
to bid at such sale, or for the auctioneer knowingly to take
any bid from the seller or any such person. Any sale con-
ee this rule may be treated as fraudulent by the

uyer.”

(4) “ A sale by auction may be notified to be subject to
a reserved or upset price, and a right to bid may also be
reserved expressly by or on behalf of the seller. When a
right to bid is expressly reserved, but not otherwise, the
seller, or any one person on his behalf, may bid at the
auction.”

The law is so jealous of the rights of bond fide bidders,
that it has been held as doubtful whether a previous private
warranty to a person who became an unsuccessful bidder
would not avoid the sale to a third party; for it was like
puffing, and in a sale by auction all have a right to suppose
that they are bidding upon equal terms ().

An agreement made by two persons not to bid against
each other, but that one of them should bid up to a certain
sum, and that the lot should subsequently be divided
between them, is not illegal, and therefore furnishes no
ground for opening the biddings, or annulling the
sale (y).

A mock auction with sham bidders, for the purpose of
selling goods at prices grossly above their worth, is an
offence at common law, and the persons aiding and abetting
such a proceeding may be indicted for a conspiracy with
intent to detraud (z).

A purchaser at an auction can, before payment, make a
complete bargain and sale of the article which he has
bought to a third party, so as to maintain an action for
goods bargained and sold (a).

Where a party refuses to take goods he has purchased,
they should be resold, and he will be liable to the loss, if
any, upon the resale (6).

Thus, in Scotland, where some horses were sold by
public auction without stipulation as to credit, and the

(x) Hopkins v. Tanqueray, 23 L. (a) Scott v. England, 2 D. & L.
J., C. P. 162. 520. See also Heffer v. Martyn, 36
(y) In re Carew’s Trusts, 26 Beav. L. J., Ch. 372. .
187. (b) See Maclean v. Dunn, 4 Bing.

ae Reg. v. Lewis, 11 Cox, C. C, 729; Story on Sales, 348.

45

Effect of pre-
vious private
warranty.

Agreement
not to bid
against each
other.

Mock
auctions.

Purchaser
may transfer
his bargain.

Where party
refuses to
take goods.

Goods resold
without com-
46

municating
with pur-
chaser.

Auctioneer
proper party
to receive the
price.

Has no
authority to
receive a bill
of exchange.

He is stake-
holder for
both parties.

Effect of this
attribute.

HORSEDEALERS, REPOSITORIES AND AUCTIONS.

purchaser allowed two days to elapse without tendering
the price, it was held that the seller, who had never
parted with the possession, was entitled on the third day
to resell them without any communication with the original
purchaser, and to sue the original purchaser for the differ-
ence in the prices, and for the keep of the horses between
the periods of sale and resale, and the expenses of the
resale (c).

An auctioneer, employed to sell goods for ready money,
is the agent of the vendor to receive the price (d) ; but
where the goods are sold on credit, it depends upon the
extent of his authority, which, in the absence of any proof
of general authority, must depend upon the conditions of
sale; and where the only authority given to the auctioneer
by these conditions is to receive the deposit money, the
vendor reserves to himself or his agent the power to receive
the remainder of the purchase-money (e).

And in any case where he has authority to receive the
purchase-money, he has no authority to receive it by means
of a bill of exchange (/).

Where, by the terms of a sale by auction, a deposit is
to be made with the auctioneer, he becomes the stake-
holder of both parties, and must retain possession of it (9) ;
and if he accepts a less sum than that which is to be paid
by the conditions of sale, he cannot afterwards object that
too little 1s paid (A).

If he parts with the deposit without authority from the
vendee, he may be sued for it. Thus, when the auctioneer
received the deposit, and signed the agreement that he
would complete the sale, and the vendee found the title to
the estate sold defective, it was held that he might bring an
action for money had and received against the auctioneer for
the deposit, though the latter had paid it over to the vendor
without any notice from the purchaser not to do so, and
before the defect of title was ascertained (¢) ; for in strict

L. R.1Q. B. 352; 35 L.J.,Q. B,

(ce) Laing v. Hain, 2 8.M. & P.
111.

396. (Court of Sess. Sco.)

(d) Sykes vy. Giles, 5 M. & W.
650; Williams v. Evans, L. R., 1
Q. B. 352; 385 L. J., Q. B. 111.

(e) Sykes v. Giles, 5 M. & W.
650; DMynn v. Joliffe, 1 M. & Rob.
326. And see cLlexander v. Gibson,
2 Camp. 555; 11 R. R. 797.

(f) Sykes ve Gales, 5 M. & W.
652. And see Williams vy. Evans,

(9) Edwards v. Hodding, 5 Taunt.
815; 16 R. R. 662; Gray v. Gutte-
ridge, 3 C. & P. 40.” And see
Sweeting v. Turner, L. R., 7 Q. B.
310; 41 L.J.,Q. B.58; 35 LT.
N. 8. 796; 20 W. R. 185, :

h) Hanson v. Roberdeau, 1 P
nd. 163. eC

(t) Gray v.Gutteridge,3 C. & P.40.
REPOSITORIES AND AUCTIONS.

law the auctioneer, being a stakeholder, is not entitled to
notice of the contract being rescinded (k).

An auctioneer, being a mere stakeholder, is not liable
‘for interest on the deposit to the vendor (/).

An auctioneer has a lien upon the goods sold by him,
and a right of lien upon the price when paid, for his
commission and charges (m). With this object he may
bring an aetion in his own name for the price of the goods
sold by him. Accordingly, where the defendant pleaded
to a declaration for the price of a horse sold and delivered
by the plaintiff, who was an auctioneer, that the plaintiff
sold the horse as auctioneer, agent and trustee for K., and
that defendant had, paid K. before action brought, this
plea was held on demurrer to be a bad plea (7).

Where a horse is sold at a repository on certain condi-
tions, one of which, for instance, may be, a power to return
the horse within a certain time, if he does not answer his
warranty ; it has been held that the price which the auc-
tioneer has received does not vest in the vendor until the
conditions have been complied with (0).

Where an agent on a sale receives as the price of an
article money obtained by the fraud of his principal, it is
not money received to the use of the principal, but to the
use of the purchaser of the chattel. Thus, a horsedealer
employed an auctioneer to sell a horse for him, and to make
certain representations which amounted to gross fraud.
The horse was sold and paid for, but before the money was
paid over the fraud was discovered and the money returned
to the purchaser. The horsedealer brought an action
against the auctioneer to recover the money so received by
him. But it was held by the Court of Queen’s Bench that
he could not recover, as the principle of Murray v. Mann (p)
applied with the greatest force to this case. And it was
said that it would be a discredit to the law of England
if the innocent agent of the plaintiff's fraud were bound
to pay the money over to him. For if he did so after
notice he would be liable to an action at the suit of the
purchaser (q).

(k) Duncan v. Cafe, 2M.& W. Q. B. 250.

244, (0) Hardingham v. Allen, 5 C. B.
(}) Harington y. Hogart,1 B. & 796.

Ad. 577. (p) Murray v. Mann, 2 Exch.
(m) Coppin y. Craig, 7 Taunt.243; 538.

17 KR. R. 508; Robinson v. Rutter, (q) Stevens v. Legh, 2 C. L. R.

24 L.J., Q. B. 250. 251.

(n) Robinson v. Rutter, 24 L. J.,

47

As to interest.

Auctioneer’s
lien.

When the
price vests in
the vendor.

Price obtained
by principal’s
fraud.
48

Auctioneer’s
commission.

HORSEDEALERS, REPOSITORIES AND AUCTIONS.

Where an auctioneer entrusted with a sale is the causa
causans of the sale, he is entitled to his commission, even
though before the actual sale the vendor withdrew the
property from sale by him (r). Thus, by the terms of an
agreement between the parties, an auctioneer was to be
entitled to a commission, if the estate should be sold by
him. The estate was not actually sold by him, but the
vendor, after the auctioneer had advertised the sale, and
had put up the property for sale by auction, wrote to the
plaintiff, and withdrew the property from sale for the
present. In the meantime, and before the sale was with-
drawn, the vendor and the afterwards purchaser were in
negotiation for the purchase of the property. In an action
by the auctioneer against the vendor for his commission,
it was held by the Court of Common Pleas, that under
these circumstances the auctioneer must be held to be the
causa causans of the sale, and therefore entitled to his
commission (3).

(r) Clark v. Smythies,2 F.& F. (s) Greenv. Bartlett, 83L.T.,N.S.

83. And see Miller v. Beale,27W.R. 603.
403, M. R.
CHAPTER III.

FAIRS AND MARKETS OVERT; HORSE STEALING AND THE
RECOVERY OF STOLEN HORSES.

Fairs and Markets Overt.

Tue general rule of law is, that all sales and contracts of Sales at fairs

anything vendible in fairs or markets overt (that is, open),
shall not only be good between the parties, but also be
binding on all those that have any right of property therein.
And for this purpose, the Mirror informs us, were tolls
established in markets, viz. to testify the making of con-
tracts, for every private contract was discountenanced by
law; insomuch that our Saxon ancestors prohibited the
sale of anything above the value of twenty pence unless
in open market, and directed every bargain and sale to be
contracted in the presence of credible witnesses (a).

The general rule of the law of England is, that a man
who has no authority to sell cannot, by making a sale,
transfer the property to another. And the only exception
to this rule is the case of sales in market overt (+), when
the purchaser’s title is good against all the world (c).

This exception, however, only applies to bond fide sales
commenced and perfected in market overt; that is, where
the goods sold are actually in the market, and where both
the sale and delivery of them take place therein (d).

Market overt in the country is only held on the special
days provided for particular towns by charter or prescription,
but in London every day, except Sunday, is market day (a).

The market place, or spot of ground set apart by custom,

and markets
overt.

The general
rule of law.

When market
overt is held.

Where market

or established under powers conferred by a modern Act of overt is held.

parliament (e), for the sale of particular goods, is also in
the country the only market overt, but in the city

(a) 2 Bla. Com. 449. (2) Crane v. London Dock Co., 33

(4) See per Abbott, C.J., Dyer vy. L.J., Q. B. 224; 10 L. T., N.S.
Pearson, 3 B. & C. 42. 372;

(c) Cundy v. Lindsay, 3 App. (e) Ganly v. Ledwidge, 10 Ir. R.,
Cas. 459; 47 L.J., Q. B. 481; 388 OC. L. 33, Q. B.
L. T., N. 8. 573.

oO. E
What held to
be market
overt without
the city of
London.

Horse ‘‘ an
article’’ with-
in 10 & 11
Vict. cv. 14.

Dwelling-place
or shop.

FAIRS AND MARKETS OVERT, ETC.

of London by the custom of London every shop (except
paenbrokers) i which goods are exposed publicly for sale
is market overt, but for such things only as the owner
professes to trade in (f). So that Smithfield is not a
market overt for clothes, nor Cheapside for horses (/f’).

Without the city of London, market overt is an open,
public, and legally constituted market (y). Therefore a
mere repository for horses is not market overt (/). ;

By the Markets and Fairs Clauses Act (10 & 11 Vict.
c. 14), s. 13, every person, other than a licensed hawker,
is prohibited from selling or exposing for sale within the
prescribed limits, except in his own dwelling-place or shop,
any articles in respect of which tolls are by the special Act
authorised to be taken in the market.

The object of the Act was evidently to protect the interests
of the market; to restrain anyone from setting up within
the limits a rival market; and the substantial meaning of
section 13 is, that whenever it appears that the seller sells in
a shop which is private and permanent he is to be within
the exception, but whenever a man does not sell in his
private shop, but sets up a private market of his own, the
section imposes a penalty ; and whether or not the place of
sale is the seller’s own private dwelling-place or shop is a
question which must be decided upon a consideration of all
the elements of the case (i). The section includes horses
under the word article, when sold by a licensed auctioneer
by auction in the yard belonging to a dwelling-house not
his own, and within the prescribed limits (/).

Where an auctioneer sold sheep, cattle and horses at a
building called the “ Agricultural Hall,” of which he was
proprietor, and which was capable of holding one hundred
head of cattle, and which was, moreover, contiguous to a
yard capable of holding 1,400 sheep, it was held, that
these premises were not the auctioneer’s dwelling-place or
shop, notwithstanding that his dwelling-house was only

(f) 2 Bla. Com. 449.

(#) Moore, 360.

(g) See Com. Dig. Market; per
Jervis, C.J., Lee v. Bayes, 18 C. B.
601.

(h) Lee v. Bayes, 18 C. B. 601.

(i) Pope v. Whalley, 6 B. & 8.
203; 11 Jur., N. 8. 444; 34 L. J,
M. C. 76; 11 L. T., N.S. 769.

(J) Llandaff ana Cunton Districts
Market Co. v. Lyndon, 6 Jur., N. 8.

1344; 30 L. J..M.C.105; 8 W.R.
693. See also Wiltshire v. Willett,
11 C. B, N. 8S. 240; 31 L. J.,
M.C.8; 10 W. R. 445; 5 L. T.,
N. 8. 355; Hooper v. Henshole,
L. R., 2 Q. B. D. 127; 46 L. J.,
M.C.160; 36 L. T., N. 8. 111:
alshworth v. Heyworth, L. R., 4
Q. B. 316; 38 L.J., M,C. 91; 20
L. T., N.S. 439.
FAIRS AND MARKETS OVERT.

separated from the hall by the yard (x). And, “under
that state of facts,” said Cockburn, O. J., “it is impossible
to say that the sale took place in the dwelling-place of the
respondent; for the place is entirely separated from his
dwelling-house; and assuming (contrary to my opinion)
that a distinction was intended by the use of the phrase
‘ dwelling-place,’ instead of ‘ dwelling-house,’ which occurs
in some of the other statutes, and that ‘dwelling-place’
may apply to somewhat larger and more extensive premises
than the term ‘ dwelling-house’ would apply to; yet I do
not think that in any sense of the term can those premises
be said to be the dwelling-place of the respondent, separated
as they are from the place in which he lives. Then, is it
his shop? I am of opinion that it is not. It cannot, in
any proper sense of the term, be called a shop. I agree
that there may be cases in which the term ‘shop,’ in its
popular sense, would not be applicable to the premises in
which things were sold or exposed for sale, and yet, by a
liberal and rational construction of the Act, the premises
might be considered as within the exception of ‘shop.’
Take, for instance, the place of business of a horsedealer
who has stables in which he keeps horses for sale, either as
his own or on commission. Although tolls are payable for
the sale of horses in the market, it would be, perhaps, too
much to say that the horsedealer is not at liberty to sell
horses on his own premises, as not being within the excep-
tion of ‘shop’ in the statute. I think we might say that,
on fair construction, the horsedealer’s premises were ‘a
shop’ within that term as used in section 13. But each case
must depend on its particular circumstances. Although, as
I have said, the premises of a horsedealer might come
within the exception, it is a very different thing when we
have to deal with an extensive area like the present, which
is, in fact, nearly as extensive as the market-place itself.
It is true that the auction itself took place in a building,
but the sheep and other things, the subject of the sale,
were exposed for sale in this large yard and kept there.
To say that this could be a ‘shop’ within the meaning of
this section would be, as it appears to me, quite unreason-
able. I own my individual opinion is rather strong against
an auctioneer’s premises being a ‘shop’ at all within the
meaning of the section, but it is not necessary to determine

(k) Fearon v. Mitchell, L. R.,7Q. B. 690; 41 L. J., M. C. 170; 27
L. T., N. 8. 38.
E 2

51
52

Where a
horse ata
fair is exempt
from distress.
Sale of
diseased
animals in
market.

Stat. 24 & 25
Vict. c. 96.

Description in
an indictment.

FAIRS AND MARKETS OVERT, ETC.

that. Assuming that an auctioneer’s premises might be a
shop for the purpose of selling, so as to come within the
exception, it seems to me impossible to say that these
extensive premises, being in the open air and capable of
holding so many hundred sheep, can in any sense of the
term be brought within the description of a shop ” (/).

A horse which brings goods to market to be sold is, as
well as the goods themselves, exempt from distress, for the
sake of public utility (1).

Where a statute prohibited persons from sending animals
affected with a contagious disease to market, and inflicted
penalties on any person so sending them, the act of sending
them, if known to be so infected, was a public offence, but
did not amount by implication to a representation that they
were sound, and did not of itself raise, as between the
vendor of the animals and the purchaser of them, any right
on the part of the purchaser to claim damages in respect of
an injury he had suffered in consequence of their pur-
chase (7).

Horse Stealing.

By 24 & 25 Vict. c. 96, s. 10, it is enacted, that “ who-
soever shall steal any horse, mare, gelding, colt or filly, or
any bull, cow, ox, heifer or calf, or any ram, ewe, sheep or
lamb, shall be guilty of felony:’’ and by section 11, it is
enacted, that ‘whosoever shall wilfully kill any animal
with intent to steal the carcase, skin or any part of the
animal so killed, shall be guilty of felony ” (0).

In an indictment for horse stealing under 7 & 8 Geo. 4,
c. 29, s. 25, the phraseology of which section has been
followed in this respect by 24 & 25 Vict. c. 96, s. 10, it was
held, that the animal, whether a horse, mare, gelding, colt
or filly, might be described as a “horse,” although the
statute specified the particular species and gender (p); and
the construction thus given to the former statute would pro-
bably make it unnecessary to amend in a like case an in-
dictment under the present statute. Now, upon any similar
objection being taken, not covered, as in this case, by an

(2) Fearon vy. Mitchell, L. R., 7 (x) Ward v. Hobbs, 4 App. Cas.,
Q. B. 294, 295. See also U*Holev. 138; 48 L.J.,C. P. 281; 40 L. T.
Davies, 1 Q. B. D. 59; 465 L. J., N.S. 78; 27 W. R. 114.

M.C. 30; 33 L. T., N. 8. 602; (0) Repealing but substantially re-
24 W. R. 343, enacting 7 & 8 Geo. 4, v. 29, s. 25.

(m) See Francis v. Wyatt, 3 Burr. (p) Rex v. Aldridge, 4 Cox, C. C.

1502, and the authorities there cited. 143.
HORSE STEALING.

express decision, the indictment might be amended under
14 & 15 Viet. c. 100, s. 1.

If a horse in a close is taken with intent to steal him,
but the thief is caught before he get out of the close, the
offence is complete (q). And where the prisoner went into
the stable of an inn, and, pointing to a mare, said to the
ostler, ‘That is my horse, saddle him,” and the ostler did
so, and the prisoner tried to mount the mare in the inn
yard, but failing to do so directed the ostler to lead the
mare out of the yard for him to mount, and the ostler led
her out, but before the prisoner had time to mount her a
person who knew the mare came up and the prisoner was
secured ; it was held, that if the prisoner caused the mare
to be led out of the stable intending to steal her, that was a
sufficient taking to constitute a felony (r).

If the owner of goods gives up the possession of his goods,
at the same time intending to part with the entire property
in them, it is no larceny, although he may be defrauded in
the bargain (s).

‘When the
offence is
complete.

Property
given up.

53

A person selling a horse at a fair should take care how Delivery of a

he delivers his horse to a stranger without receiving pay-
ment for him, because whatever false statements and pre-
tences the stranger may make use ot, if the seller part with
him on a promise being made that he shall be paid for him
at a certain place, and the horse is ridden off without his
receiving the money, he cannot get him back again, neither
can he indict the stranger for tricking him, but his only
remedy is an action for the price, which it might be useless
to bring against so worthless a party. Thus, where a man
was indicted for obtaining a filly by false pretences, it
appeared that the prisoner, pretending to be a gentleman’s
servant, that he lived at Brecon, and that he had bought
twenty horses at Brecon Fair, got possession of a filly there
from a person who had her on sale, saying that if the pro-
secutor would take a horse he delivered to him to the Cross
Keys he would meet him and pay the money. The prisoner
never made his appearance, and the horse left was good for
nothing. It was held, that as the prosecutor parted with
the filly because the prisoner promised to pay him, and not
on account of any of the false pretences charged, the
prisoner was entitled to an acquittal (¢).

(g) 1 Hale, 508. Sheppard, 9 OC. & P. 123. 7
(r) Rea v. Pitman, 2C.&P.423. — (¢) Rea v. Dale, 7 C. & P. 852;
(s) Per Coleridge, J., Reg. v. RB. v. Harvey, 1 Leach, 467.

horse to a
stranger.
54

Delivery on
trial.

Goods taken
without con-
sent.

Appropriation
of a hired
horse.

Larceny
without proof
of sale.

Taking with
an intent to
use.

FAIRS AND MARKETS OVERT, ETC.

Where W. let a horse on hire to C., who fetched the
horse every morning from W.’s stable and returned it after
the day’s work was done, and the prisoner went to C. one
day just as the day’s work was done and fraudulently
obtained the horse by saying, falsely, “I have come for W.’s
horse; he has got a job on and wants it as quickly as
possible ;” and the same evening the prisoner was found
three miles off with the horse by a constable, to whom he
stated it was his father’s horse and that he was sent to sell
it. This was held as against W. to be a larceny, though
as against C. it would have been an obtaining by false
pretences (vw). :

Tf, instead of delivering a horse on the completion of a
bargain, the owner allows the party to ride him by way
of trial, and he rides away in pursuance of an intention to
defraud, the property is unchanged, and the felony is
complete (2).

If the owner does not consent to the goods being taken,
and the person when he bargains for them does not intend
to pay for them, but means to get them into his possession,
and dispose of them for his own benefit without paying for
them, it is a larceny («).

If a horse be hired for the day by a person intending at
the time of hiring to appropriate it, and it is accordingly
taken away and sold, a felony is committed, because the
owner did not intend to relinquish his property in the horse,
but only the temporary possession (y). But where a horse
is hired for a particular purpose the selling him after that
purpose is accomplished will not constitute a new felonious
taking (s).

If goods are delivered to a person on hire, and he takes
them away animo furandi, he 1s guilty of larceny, although
no actual conversion of them by sale or otherwise is
proved. Thus, where A. hired a horse and gig with the
felonious intention of converting them to his own use,
and afterwards offered them for sale, but no sale took
place; it was held nevertheless that he was guilty of
larceny (a).

A taking with the bare intent to use goods, though

(u) Reg. v. Kendall, 30 L. T. 345; Rea v. Patch, Ibid. 238; Rex v.

12 Cox, C. C. 598, C.C. R. Pratt, 1 Mood. C. C. 185.
(w) See Dickinson, Q. 8. 220. (2) Rex v. Banks, R. & R. 441.
(x) Gilbert’s Case, 1 Mood. C. C. (a) Reg. v. Janson, 4 Cox, C. C.
186. 82, overruling Reg. v. Brooks, 8 C.

(y) Rea vy. Pear, 1 Leach, 521; & P. 295.
HORSE STEALING.

unlawfully, will be only a trespass if the jury are satisfied that
such was the original intention. Thus, where two persons
took two horses from a stable, rode them to a place at a
distance, and there left them, proceeding on foot, and the
jury found that they took the horses merely to forward
them on their journey, and not to make any further use of
them, this was held not to be a larceny (6). And if a per-
son stealing other property takes a horse, not with the
intent to steal it, but only to get off more conveniently with
the other property which he has stolen, such taking of the
horse is not a felony (c).

Where a man is found in possession of a thing after a
lapse of six or seven months from the time when it was
lost, and there is no other evidence against him but that
possession, he ought not to be called on to account for it.
Thus, where a mare, which had been lost in December,
was not found in the prisoner’s possession till the June or
July following, it was held that his possession was not
sufficiently recent to put him on his defence (d).

By 24 & 25 Vict. c. 97, s. 40 (e), the malicious killing,
maiming or wounding of any cattle is felony. And the
word “ cattle,’’ which alone is mentioned in the Act, has
been held under former Acts to include horses (7), as well
as oxen, &c., pigs (g), and asses (A).

By section 41 of the same statute, the malicious killing,
maiming or wounding of other animals is made punishable
by imprisonment or fine.

Where a person had poured nitrous acid into a mare’s
ear, and some had run into her eyes and blinded her, and
the injuries produced to the ear were ulcers, not wounds,
though such ulcers would have turned to wounds, a convic-
tion tor maiming was held right (é).

The distinction between maiming (/) and wounding (/)
appears to be that the former implies permanent injury,
while the latter does not necessarily do so.

It is not necessary under this statute to prove that any
instrument has been used; where the roots of a horse’s
tongue were lacerated, and the tongue was protruding from

(b) Rea v. Phillips, 2 East, P. C.
c. 16, 8. 98.

(c) Rex v. Crump, 1C. & P. 688.

(d) Per Maule, J., Reg. v. Cooper,
16 Jur. 750. ;

(e) Repealing but re-enacting 7 & 8
Geo. 4, c. 30, s. 16.

(f) Rex v. Patey, 2 W. Bla. 721.

(g) Rex v. Chapple, R. & R. 77;
15 R. R. 736.

(h) Rex v. Whitney, 1 Mood. C.
C. 3

(i) Owen’s Case, 1 Mood. C.C. 205.
(k) BR. v. Jeans, 1 C. & K. 539.
(2) R.v. Haywood, Russ. & Ryan,

16.

55

Possession six
months after
loss.

Killing or
maiming
horses.

Other animals.

Pouring acid
into a mare’s
ear.

“ Maiming and
wounding.”

Use of instru-
ment need not
be proved.
56

Malice.

Drugging of
Animals Act.

Sale in market
overt.

FAIRS AND MARKETS OVERT, ETC.

his mouth, and there was only evidence to show that the
injury had been done by the prisoner’s hand, it was held
that an offence against the Act had been committed (m).

To support an indictment under these sections, 1t 1s un-
necessary to give evidence of malice against any particular
person (z), yet an evil intent in the prisoner must appear.
Thus, in a case in which the prisoner, a groom, adminis-
tered sulphuric acid to his horses, Parke, J., left it to the
jury to say, whether he had done it with the intent
feloniously to kill them, or under the impression that it
would improve their appearance (there being some evidence
of a practice of that kind among grooms), and that in the
latter case they ought to acquit him (0).

Where, however, the act is cruel and wanton the law
will imply malice. Thus, where a man caused the death of
a mare from internal injuries not intending by his act to
kill, maim, or wound her, and acting recklessly and not
caring whether she was injured or not, though without any
ill-will or spite, either towards the owner of the animal
or the animal herself, and without any motive except the
gratification of his own depraved tastes, he was found
guilty of maliciously killing the mare contrary to the
statute (p).

By 39 & 40 Vict. c. 18 (The Drugging of Animals Act,
1876), the practice of administering poisonous drugs to
horses and other animals by disqualified persons and with-
out the knowledge and consent of the owner of such animals
is made punishable by fine orimprisonment. The Act does
uot extend to the owner of the animal, nor anyone acting
under his authority, nor does it exempt a person from pun-
ishment under any other Act, so that he be not punished
more than once for the same offence.

Recovery of Stolen Horses.

Although as a general rule the purchaser of stolen goods
in market overt acquires a title to them, this is not the case
with regard to stolen horses. For a purchaser gains no
property in a horse which has been stolen, unless. he buys

(mm) R. v. Bullock, 37 L.J.,M.C. 30 L. T., N. S. 405; 22 W. R. 553;

47; L. BR. 10. C. R. 115. 12 Cox, C. C. 607.
(x) R. v. Tivey, 1 C. & K. 704. (0) A. v. Mogg, 4 C. & P. 364.
See also Reg. v. Pembliton, L. R., 2 (p) BR. v. Welch, 45 L. J., M. ©.

C. CG. R. 119; 43L.3.,M.C.91; 17.
RECOVERY OF STOLEN HORSES.

it in a fair or market overt, according to the directions of
the statutes of Philip and Mary (q), and Elizabeth (7).

By the statutes of Philip and Mary, and Elizabeth, it
is enacted, that the horse which is for sale shall be openly
exposed in the time of such fair or market, for one whole
hour together, between ten in the morning and sunset, in
the public place used for such sales, and not in any private
yard or stable; and afterwards brought by both the vendor
and vendee to the bookkeeper of such fair or market; that
toll be paid if any be due, and if not, one penny to the
bookkeeper, who shall enter down the price, colour, and
marks ot the horse, with the names, additions and abode of
the vendee and vendor, the latter being properly attested (s).

The sale of a horse under these statutory regulations
does not take away the property of the owner, if within
six months after the horse is stolen he puts in his claim
before some magistrate where the horse shall be found,
and within forty days more proves it to be his property by
the oath of two witnesses, and tenders to the person in pos-
session such price as he bond fide paid for him in market
overt (¢).

Unless, however, it is proved that the horse was stolen a
magistrate has no authority to restore it; and, therefore,
where a complaint was made to a magistrate by A. the
owner, that his horse had been stolen by B., without actual
proof of its having been stolen, it was held that an officer,
although armed with a warrant against B., was not justified
under the 31 Eliz. c. 12, s. 4, in taking the horse out of the
possession of the bond fide purchaser from B. (vw).

Where horses or other stolen goods are sold out of
market overt, the owner’s property is not altered, and he
may take them wherever he finds them (@).

We have seen that the sale of a stolen horse, even in
market overt, is void if certain statutory regulations have
not been observed, and in such case the owner does not
lose his property, but at any distance of time may seize
or bring an action for his horse, wherever he happens to
find him (x). But, in a case (y) in which no evidence was

(g) 2 & 3 Ph.& M.c. 7, post, oc. 12.
Appendix. Bys. 22, sub-s. (2) of the (t) 81 Eliz. c. 12,8. 4; Kel. 48.
Sale of Goods Act, 1893, nothing in (u) Joseph v. Adkins, 2 Stark. N.
that section shall affect the law relat- PP. C. 76.
ing to the sale of horses. (x) 2 Bla. Com. 449.
(r) 81 Eliz. c. 12, post, Appendix. (y) North v. Jackson, 2 F. & F.
(s) 2 Ph. & M.c. 7, and 31 Eliz. 198.

57

Statutory
regulations.

Recovery when
sold under
these regula-
tions.

Owner must
prove the horse
was stolen.

Sale out of
market overt.

Recovery when
not sold under
these regula-
tions.
58

Proof of com-
pliance with
statute.

Rule that
owner must
first endeavour
to bring the
thief to justice.

To be taken
with modifica-
tions.

FAIRS AND MARKETS OVERT, ETC.

given of a compliance with the statutory regulations, a bond
Jide purchaser of a horse from a person who had bought it
(as the second purchaser knew) at a fair, without any
evidence that he knew that it was obtained dishonestly,
although it had been purchased on credit, and not paid for,
was held entitled to maintain trover against the original
owner for retaking it. :

The onus of showing that the formalities required by the
statute have been observed lies on the buyer. In Moran v.
Pitt (2) the defendant’s mare, which he had turned out in
a public park, was found out of the park and was sold at
public auction by the “pinner”; and after an inter-
mediate sale she was sold in market overt by the plaintiff
and subsequently taken possession of by the defendant.
No proof was given that the formalities required .by the
statute had been complied with; and the Court of Queen’s
Bench, in the absence of such proof, declined to infer that
such formalities had been observed, and held that the
plaintiff could not maintain an action for the mare against
the defendant, the true owner.

It has been held, that where a party has good reason to
believe that his horse has been stolen, he cannot maintain
trover against the person who bought it of the supposed
thief, unless he has done everything in his power to bring
the thief to justice («). But where the owner of the stolen
property had prosecuted the felon to conviction, and before
that time had given notice of the felony to the defendant,
who had purchased bond fide, but not in market overt,
and the defendant after such notice had sold the property
in market overt, it was held that the owner might
recover from the defendant the value of his property in
trover (0).

Though the decisions themselves in the cases of Gimson
v. Woodfall and Peer v. Hunphrey have not been expressly
overruled, yet the general rule upon which they rest can
now ouly be taken with some modifications. It is a true
principle, that where a criminal and consequently an in-
jurious act towards the public has been committed, which
1s also a civil injury to a party, that party shall not be
permitted to seek redress for the civil injury to the pre-
judice of public justice, and to waive the felony (c). But

(2) 42 L. J.,Q. B. 47; 28 L. T., (b) Peer v. Humphrey,2 A. & E.
N.S. 554; 21 W. R. 554. 495.

(a) Ginson y. Woodfall, 20.& P. (c) Although this is the rule, it
41. becomes a different question when
RECOVERY OF STOLEN HORSES.

this rule of public policy applies only to proceedings
between the plaintiff and the felon himself, or at the most
the felon and those with whom he must be sued (d), and
therefore it is not applicable where the action is against a
third party, who is innocent of the felony.

Thus, it was held that an action of trover was maintain-
able to recover the value of goods which had been stolen
from the plaintiff, and which the defendant had inno-
cently purchased, although no steps had been ,taken to
bring the thief to justice (d). Thus, too, in a case where A.
had bond fide purchased a stolen horse at a public auction
(not being a market overt), and had sent it for sale to a re-
pository for horses kept by B., and there it was found by
the owner, who demanded it of B. in the presence of A.,
and B. refused to give it up without the authority of A.; it
was held, in an action of trover against A. and B., that in
this case it was not necessary in the first instance to prose-
cute the felon, and that there was sufficient evidence of a
joint conversion ; inasmuch as, though a servant or agent,
who has received goods from his master or principal, may,
on the demand made by the true owner of the goods, give
a qualified refusal to deliver them up, without being liable
to an action of trover ; yet when a bailee sets up or relies
upon the title of his bailor, in answer to such demand, his
refusal is evidence of a conversion by him (e).

If goods be stolen from any common person, and he
prosecutes the offender to conviction, he will be entitled,
under 24 & 25 Vict. c. 96, s. 100 (f), to an order of
restitution from the Court before whom the trial took
place, and this notwithstanding any intervening sale in
market overt (g).

Or the goods may be recovered in ¢rover from the
purchaser of them in market overt, upon a conversion by
him subsequent to the conviction of the felon, without any
order for restitution having been made. For the effect of
24 & 25 Vict. c. 96, s. 100 (/), is to revest the property in
stolen goods in the original owner upon conviction of the
felon ().

we have to consider how it is tobe vv. Gillett, L. R., 8 Ex. 88; 44. J.,

enforced: per Cockburn, C. J., Wells Ex. 53.

vy. Abrahams, L. R., 7 Q. B. 557; e) Lee v. Bayes, 18 C. B. 599.

41L. J., Q. B. 306. f) Taken from 7 & 8 Geo. 4,
(d) White v. Spettigue, 13 M. &  c. 29, 8. 57.

W. 606; Stone v. Marsh, 6B. & C. (g) 2 Steph. 124.

551; Marsh v. Keating, 1 Bing. N. (A) Scattergood vy. Sylvester, 19

C. 198; per Crowder, J., Lev. L.J.,Q. B. 447.

Bayes, 18 C. B. 602; and see Osborn

59

Where the
action is
against a third

party.

Evidence of
conversion.

Order for
restitution.

Or action of
trover.
60

Order of police
magistrate.

Replevin for
unlawful
taking.

FAIRS AND MARKETS OVERT, ETC.

The doné fide purchaser of stolen beasts sold in market
overt cannot, in answer to a claim for them by the original
owner after the conviction of the thief, counterclaim for the
cost of their keep while the beasts were in his possession,
for they were his own property until, on the conviction, the
property revested in the original owner (2).

This enactment applies to cases of false pretences as
well as felony, and the fact that the prisoner parted with
the goods to a bond fide pawnee will not disentitle the
original owner to the restitution of the goods (j). It also
applies to property received by a person knowing it to
have been stolen or obtained by talse pretences. The
order of restitution is strictly limited to property identified
at the trial as being the subject of the charge ; it does not,
therefore, extend to property in the possession of innocent
third persons, which was not produced and identified at the
trial as being the subject of the indictment (4).

Where stolen cattle were sold in market overt at about
10 o’clock in the morning, and later on in the day resold
likewise in market overt, both purchases being bond fide, it
was held, that, upon the conviction of the thief, the judge
had jurisdiction at the trial to order restitution to the right-
ful owner (J).

And by the 80 & 31 Vict. ¢. 35, s. 9, provision is made
upon conviction of the thief, and restitution of the goods,
for the payment to an innocent purchaser from the thief,
out of any moneys taken from the thief on his appre-
hension, uf the price such purchaser has paid for the
stolen goods.

Under 2 & 3 Vict. ce. 71, the metropolitan police
magistrates have power to order that any goods stolen or
fraudulently obtained be delivered up to the owner (sm).

An action of replevin may be maintained for any un-
lawful taking of goods, as upon a mistaken charge of felony,
and is not confined to the case of goods distrained. Thus,
where there was a dispute between the defendant L. and
the plaintiff as to the ownership of a horse, one H., having
obtained possession of it at the plaintiff’s request, was
charged by L. with stealing it. The defendant C. was a

(
D. 109; 51 L. J., Q. B. 243; 46 597.
Ts

i)
1
T., N. 8.915; 30 W. R. 338. (2) Reg. v. Horan, 6 Ir. R., C. L.
(j) Reg. v. Stancliffe,11 Cox, 0.C. 298, C. C. R.
318. (m) See 2 & 3 Vict. ¢. 71, ss. 27,
(k) Reg. v. Goldsmith, 12 Cox, C. 40.

Walker v. Matthews, 8 Q.B.  C. 594; Reg. v. Smith, 12 Cox, C. C.
RECOVERY OF STOLEN HORSES.

policeman of the borough of Liverpool, appointed under
0 & 6 Will. 4, c. 76, s. 76; and the charge having been
made to him, he apprehended H. and took possession of the
horse. The charge of felony was afterwards dismissed by
the police magistrate, but the defendant C. was ordered to
give up the horse to the defendant L. The plaintiff brought
an action of replevin against the defendants C. and L. for
taking and detaining his, the plaintifi’s, horse, and it was
held that, though unusual in such a case, the action was
maintainable (7).

It was held by Wightman, J., in the case of R. v.
Haigh (0), that a person, who was employed to take a horse
to a particular place, and sold it on the way, was rightly
indicted under the 2nd section of the Fraudulent Trustees
Act of 1857 (20 & 21 Vict. c. 54), which section, though
repealed together with the rest of the Act by 24 & 25 Vict.
c. 95, has been re-enacted and extended by 24 & 25 Vict.
c. 96, s. 76.

(n) Mellor v. Leather, 17 Jur. 709. (0) Liverpool Winter Assize, Dec.
1857.

?

61

Wrongful sale
by agent of
horse entrusted
to him.
Present state
of the law.

Definition of
soundness,

CHAPTER IV.

WHAT DISEASES OR BAD HABITS CONSTITUTE UNSOUNDNESS
OR VICE.

Unsoundness and Vice.

In buying and selling horses, it is of the utmost import-
ance to ascertain what constitutes wnsoundness, and what
habits are to be considered vices. Until comparatively
lately there had been much perplexity on these points; no
correct rule as to unsoundness had been laid down, and a
difference of opinion existed among the Judges whether or
not a temporary disease was, during its existence, a breach
of a warranty of soundness. The law on these subjects has
been in a great measure settled by the Judges of the Court
of Exchequer, where Mr. Baron Parke laid down a rule
with regard to wnsoundness, by which, so far as the nature
of the subject will admit, all future cases will be governed,
it being the result of the deliberate consideration of the
Court (a). The same learned judge also in another case
expressed an opinion as to what constitutes a vice (b), and
keeping this in view, a correct estimate may be formed of
what will be considered a breach of a warranty of “ freedom
from vice.”

It is a difficult matter without the use of negatives to
explain, fully and briefly, the meaning of the word “sound,”
as applied to horses. Chief Justice Best, in the case of
Best v. Osborne (c), held, that “sound” meant perfect. In
Kiddell v. Burnard (ad), My. Baron Parke said, “The word
‘sound’ means what it expresses, namely, that the animal
is sound and free from disease at the time he is warranted.”
And in the same case Mr. Baron Alderson said, “The
word ‘sound’ means sownd; and the only qualification of
which it is susceptible arises from the purpose for which
the warranty is given.”

(a) Kiddell v. Burnard, 9 M. & — son v. Bertrand, 23 Ark. 730.

W. 670; Coates v. Stephens, 2M. & (0) Scholefield y. Robb,2M. & Rob
Rob. 157. These cases have been 210 ,
followed in America in Hornegay v. (c) Best v. Osborne, R. & M. 290.
White, 10 Ala. 255; Roberts.v. Jen- (d) Kiddell y. Burnard, 9 M. &
kins, 1 Foster (N. H.) 116; Thomp- W. 670.
UNSOUNDNESS AND VICE.

‘We may define a horse to be “Sounp” when he is free
From hereditary disease, ts in the possession of his natural and
constitutional health, and has as much bodily perfection as 78
consistent with his natural formation.

The rule as to wnsoundness is, that if, at the time of sale,
the horse has any disease, which either actually does
diminish the natural usefulness of the animal, so as to
make him less capable of work of any description; or
which, in its ordinary progress, will diminish the natural
usefulness of the animal: or if the horse has, either from
disease (whether such disease be congenital or arises sub-
sequently to its birth (¢)), or from accident, undergone any
alteration of structure, that either actually does at the
time or in its ordinary effects will diminish the natural
usefulness of the horse, such a horse is unsound (f). This
very much resembles the definition of wnsoundness given in
an excellent work, on the Construction of the Horse and
the Treatment of his Diseases, by the late Mr. Youatt,
published by the Society for the Diffusion of Useful Know-
ledge, and which will be used as an authority in the de-
scription of those diseases and bad habits to which the horse
is subject. But in that work wnsowndness is referred to
disease only; namely, to that alteration of structure which
is connected with or will produce disease, and lessen the
usefulness of the animal; and any alteration of structure
from accident is not comprehended within the definition
there given. This, however, is an important omission,
because when the Court of Exchequer laid down the rule
as to unsoundness, Mr. Baron Alderson on this point said,
“Tt is, however, right to make to the definition of unsound-
ness the addition my brother Parke has made, namely, that
the disqualification for work may arise either from disease
or accident”? (g).

The term “natural usefulness”? must be borne in mind.
One horse may possess great speed, but is soon knocked
up; another will work all day, but cannot be got beyond
a snail’s pace; one with a heavy forehead is liable to
stumble, and is continually putting to hazard the neck of
his rider; another with an irritable constitution and a
washy make, loses his appetite, and begins to scour if a
little extra work is exacted from him. The term wnsound-

(e) Holyday v. Morgan, 28 L. J., Stephens, 2M. & Rob. 137.

Q. B. 9. (9) Kiddell v. Burnard, 9M. & W.
(f) Per Parke, B., Kiddell v. 671.

Burnard, 9 M. & W. 670; Coates v.

63

A sound horse.

Rule as to un-
soundness.

The term
“ natural
usefulness.”
64

Important
decision as to
unsoundness.

WHAT DISEASES CONSTITUTE UNSOTINDNESS OR VICE.

ness cannot be applied to any of these; it would be opening
far too widely a door to disputation and endless wrangling.
The buyer can discern, or ought to know, whether the form
of the horse is that which will render him likely to suit his
purpose, and he should try him sufficiently to ascertain his
natural strength, endurance and manner of going (7%).

The following is a most important case on wnsoundness in
animals:—An action of assumpsit was brought on the
warranty of three bullocks, and under the direction of
Mr. Justice Erskine at the trial, a verdict was found for
the plaintiff. In refusing a rule for a new trial, Mr. Baron
Parke said, ‘‘ The rule I laid down in Coates v. Stephens (2)
is correctly reported, that is the rule I have always adopted
and acted on in cases of wnsoundness : although, in so doing,
I differ from the contrary doctrine laid down by my brother
Coleridge in Bolden v. Brogden (7) :—

“T think the word ‘sound’ means what it expresses,
namely, that the animal is sownd and free from disease at
the time he is warranted sound. If, indeed, the disease
were not of a nature to impede the natural usefulness of
the animal for the purpose for which he is used, as, for
instance, if a horse had a stight pimple on his skin, it would
not amount to an unsoundness ; but even if such a thing as
a pimple were on some part of the body where it might
have that effect, as, for instance, on a part which would
prevent the putting a saddle or bridle on the animal, it
would be different.”

“An argument has, however, been adduced from the
slightness of the disease and the facility of cure; but if we
once let in considerations of that kind, where are we to
draw the line? A horse may have a cold which may be
cured in aday; or a fever, which may be cured in a week
or a month; and it would be difficult to say where to stop.
Of course, if the disease be slight, the wusoundness is pro-
portionably so, and so also ought to be the damages: and
if they were very inconsiderable, the judge might still
certify under the statute of Elizabeth (4), to deprive the
plaintiff of costs.”

“But on the question of law, I think the direction of
the judge in this case was perfectly correct, and that this
verdict ought not to be disturbed. Were this matter pre-

(4) Lib. U. K. “The Horse,”  ness,’’ ante, p. 63.

361, (j) Bolden v. Brogden, 2 M. &
(i) Coates v. Stephens,2M.& Rob. — Rob. 113.

1387; and see‘ Rule as to Unsound- (k) 43 Eliz. c. 6, s. 2.
UNSOUNDNESS AND VICE,

sented to us now for the first time, we might deem it proper
to grant a rule, but the matter has been, we think, settled
by previous cases: and the opinion which we now express
is the result of deliberate consideration.’’

And Mr. Baron Alderson said, “I am of the same
opinion. The word ‘sound’ means sound, and the only
qualification of which it is susceptible arises from the
purpose for which the warranty is given. If, for instance,
a horse is purchased to be used in a given way, the word

‘sound’ means that the animal is useful for that purpose ;
and ‘unsound’ means that he, at the time, is affected with
something which will have the effect of impeding that use.
If the disease be one easily cured, that will only go in
mitigation of damages. It is, however, right to make to
the definition of wnsoundness the addition my brother
Parke has made, namely, that the disqualification for work
may arise either from disease or accident ; and the doctrine
laid down by him on this subject, both to-day and in the
case of Coates v. Stephens (1), is not new law; it is to be
found recognized by Lord Ellenborough and other judges
in a series of cases” (m).

The rule as to wnsowndness applies to cases of disease
and accident, which from their nature are only tempo-
rary, it not being necessary that the disorder should be
permanent or incurable. And this is laid down as law by
Lord Ellenborough in Elton v. Brogden (n), and Elton
v. Jordan (0); also by Mr. Baron Parke in Coates v.
Stephens (p), and by the Court of Exchequer in Kiddel/
v. Burnard (q), although Mr. Justice Coleridge in Bolden
v. Brogden (r) was of a different opinion.

It will be unnecessary to take into consideration acute
diseases, such as fevers, inflammation, &c., because all
horses are without dispute unsound, during the time they
are affected by them.

A vice is a bad habit, and a bad habit to constitute a
vice must either be shown in the temper of the horse, so as
to make him dangerous, or diminish his natural usefulness ;
or it must be a habit decidedly injurious to his health (s).

eh Coates v. Stephens,2M.& Rob. Rob. 157.
(q) Kiddelly. Burnard,9M.&W.
vio pe Burnard, 9 M. & 70.
(r) Boldenv. Brogden, 2M. & Rob.
i en Brogden, 4 Camp. 281. = 113.
(0) Elton v. Jordan, 1 Stark. N. (s) Scholefield v. Robb, 2 M. &
P. C. 127; 18 R. R. 754, Rob. 210; and see Crib-biting, post.
(») Coates vy. Stephens, 2 M. &

Oo. F

65

Temporary
diseases.

Acute diseases.

Rule as to vice.
66

How unsound-
ness or vice
should be lett
to a jury.

Backing and
gibbing.

WHAT DISEASES CONSTITUTE UNSOUNDNESS OR VICE.

The soundness or unsoundness of a horse is a question
peculiarly fit for the consideration of a jury, and the Court
will not set aside a verdict, on account of there being a
preponderance of evidence the other way (¢); and they
should consider whether the effect said to proceed from the
alleged wnsowndness, is such an effect as in the eye of the
law renders a horse unsound. It is also a question for
them, whether a horse warranted sound was at the time of
delivery rendered unfit for immediate use to an ordinary
person, on account of some disease ().

And in case of vice they should consider, whether the
effect alleged to proceed from a certain habit, is such an
effect as the law holds to be a vice in a horse.

Diseases, Defects or alterations in Structure, and Bad
Habits.

We shall now consider, in alphabetical order, as the most
convenient method, the various diseases, defects or altera-
tions in structure, and bad habits, to which the horse is
liable; and with the assistance of decided cases, and guided
by the rules which have been laid down by the courts an
attempt will be made to fix in each instance, which of these
does, or does not, amount to an ensoundness or a vice. Such
conclusions, however, unless founded on decided cases, are
merely stated as opinions formed by the application of the
rules already mentioned; and from the difficulty there often
is in ascertaining where soundness ends and wnsoundness
begins, people, in doubtful cases, must necessarily be guided
in a great measure by circumstances.

Backing and gibbing are closely allied, and are generally
the result of bad breaking, at the time when the horse is
first put to the collar and refuses to start. When the
habit becomes confirmed, the horse swerves, gibs and backs,
as soon as he thinks he has had enough work, or has been
improperly checked or corrected, or when he begins to feel
the pressure of the collar painful. It is impossible perma-
nently to cure a horse of this bad habit when it has become
fixed (v) ; and as it is both dangerous and diminishes a
horse’s natural usefulness, it is a breach of a warranty of
freedom from vice. In an American case, where these

(t) Lewis v. Peake, 7 Taunt. 153; (wu) See Saddle-galls, post: and
S. C.2 Marsh. 43; 17 R. R. 275; Ainsley v. Brown, there cited.
per Patteson, J., Baylis v. Lawrence, (v) Lib. U. K. ‘The Horse,’”?

11 Ad. & E. 926. 334,
DISEASES, DEFECTS, ETC.

vices were proved to have appeared in a horse on trial,
three or four days after purchase, this was held to be
evidence that they existed at the time of purchase (vw).

Biting when dangerous is a vice.

The crystalline lens is generally the seat of disease in
the eye of a horse; it is so called from its resemblance to
a piece of crystal or transparent glass, and on it all the
important uses of the eye mainly depend. It is of a thick
jelly-like consistence, conver on each side, but there is more
convexity on the inner than on the outer side. It is in-
closed in a delicate transparent bag or capsule, and is placed
between the aqueous and the vitreous humours, and received
within a hollow in the /atter, with which it exactly corre-
sponds. It has, from its density and its double convexity,
the chief concern in conveying the rays of light which pass
into the pupil. The Jens is very apt to be affected from
long or violent inflammation of the conjunctiva, and either
its capsule becomes cloudy, and imperfectly transmits the
light, or the substance of the dens becomes opaque (a).

The confirmed cataract, or the opaque lens of long stand-
ing, will exhibit a pearly appearance, which cannot be mis-
taken, and will frequently be attended with a change of
form, a portion of the /ens being forced forward into the
pupil. Although the disease may not have proceeded so
far as this, yet if there be the slightest cloudiness of the
lens either generally, or in the form of a minute spot in the
centre, and with or without lines radiating from that spot,
the horse is to be condemned; for in ninety-nine cases out
of a hundred the disease will proceed, and cataract, or com-
plete opacity of the lens and absolute blindness will be the
result (x). Cataract is an unsoundness (y).

That inflammation of the eye of the horse, which usually
terminates in blindness of one or both eyes, has the peculiar
character of remitting or disappearing for a time, once or
twice, or thrice, before it fully runs its course. The eye,
after an attack of inflammation, regains so nearly its former
natural brilliancy, that a man well acquainted with horses
will not always recognize the traces of former disease.
After a time, however, the inflammation returns, and the
result is unavoidable (s). :

Blindness is undoubtedly an unsoundness ; but to consti-

(w) Finley v. Quirk, 9 Minn. 194. 1850.
(c) Lib. U. K. ‘‘ The Horse,”’ 94. (2) Lib. U. K. “The Horse,”
(y) Higgs v. Thrale, betore Chief 363.

Baron Pollock, Guildhall, Feb. 18,

F 2

67

Biting.
Blindness.

Cataract.

Remittent in-
flammation.

Opacity of the
68

lens held to be
unsoundness,

Blood and bog
spavin.

Bone-spavin.

WHAT DISEASES CONSTITUTE UNSOUNDNESS OR VICE.

tute a breach of warranty in cases of cloudiness of the eye or
opacity of the lens, after the sale, there must either be proof
of an attack of inflammation before sale, or veterinary sur-
geons must be produced who will distinctly state that,
from the appearance of the eye, there must hare been
inflammation before the time of sale. The following case is
in point :—

A horse was bought by the plaintiff in April, warranted
sound and quict. He was sent on the 18th of June to be
examined by an eminent veterinary surgeon, who detected
an “ opacity of the crystalline lens” mm the near eye, and pro-
nounced it his decided opinion that the defect must have
been of long standing, and that in fact it was chronic; to
produce which state, it must have required a great many
successive attacks of inflammation. It might have been
produced in six months, and it was a sort of thing which
few dealers would have been likely to find out. Another
veterinary surgeon had examined the horse, and did not
see the defect, but could not swear that it did not then
exist. On this evidence a verdict was found for the
plaintiff (a).

Attached to the extremities of most of the tendons, and
between the tendons and other parts, are little bags con-
taining a mucous substance to lubricate the tendons so as
to prevent friction. From violent exertion these little bags
are liable to enlargement, of which wind-galls (4) and
thoroughpins (c) are instances. There is one of these bags
inside the bending of the hock; this sometimes becomes
considerably increased in size, and the enlargement is called
a bog-sparin. When the vein, which passes over this bag,
is distended with accumulated blood, it is called a dlood-
spavin, and is therefore the consequence of bog-spavin, with
which it is very often confounded (@) ; they generally pro-
duce lameness, and constitute unsoundness.

Bone-spavin is an affection of the bones of the hock joint.
When an undue weight and concussion are thrown on the
inner splint bone, they cause an inflammation of the carti-
laginous substance, which unites it to the shank bone; the
consequence of which is, that the cartilage is absorbed and
bone deposited, so that the union between the splint-bone
and shank becomes bony instead of cartilaginous, and the
degree of elastic action between them is destroyed. A

(2) Briggs v. Baker, before Chief (c) Thoroughpin, post.
Justice Tindal, Nov. 29, 1845. (@) Lib. U. K. ‘*The Horse,”
(6) Wind-galls, post. 119. :
DISEASES, DEFECTS, ETC.

splint in the form of a tumour appears in the inside of the
hind-leg, in front of the union of the head of the splint-
bone with the shank, and is called a bone-spavin. It almost
invariably produces lameness, and the enlargement rapidly
spreads with quick and hard work (e), so as to interfere
with the flexion of the hock.

Bone-spavin, whether it produce lameness apparent at the
time of sale or not, is an wnsowndness; and the following
veterinary evidence was given in a case which was tried.

Mr. Nice, a veterinary surgeon, stated for the plaintiff,
that eleven days after sale he had seen the horse, which
then had a confirmed bone-spavin, and that in his opinion it
was not a curable disease. Mr. Sewell, of the Veterinary
College, had examined him about a month after sale, and
said that at that time he had a confirmed bone-spavin,
which could not have occurred subsequent to the ¢ime of sale.

For the defendant, Mr. Child, a veterinary surgeon, was
called, who said that there was a bony deposit in the
interior of the hock, but that it did not intertere with its
flexion. It was what is called a done-spavin, though the
term was very indefinite; that the deposit generally, but
not invariably, increases (f); and in the incipient stages it
requires skill, and is often difficult to determine; that there
might be a deposit to a considerable extent without produc-
ing lameness; that he had known horses rejected for bone-
spavin as unsound, which had not become lame, and had
one himself which was rejected three years ago, and had
not become so. Another witness, a farrier, said, ‘I do not
think bone-spavin is an unsoundness myself, without lame-
ness ; but Lone-spavin is in our profession a known wnsound-
ness, whether it produce lameness or not.” The plaintiff
obtained a verdict (9). :

Many old horses, which have been put to hard service,
especially before they have gained their full strength, have
some of the bones of the back or loins anchylosed, being
united together by bony matter, instead of ligament.
When this exists to any considerable extent, the horse is
not pleasant to ride; he turns with difficulty in his stall ;
he is unwilling to lie down; or when down, to mse again ;
and he has a curious straddling action. Such horses are
said to be broken-backed, or chinked in the chine (h). Where

e) Lib. U. K. ‘The Horse,” 86.

o1h. 365. c (1) Lib. U. K. “The Horse,”
(f) Reported decreases. 165.
(9) Watson v. Denton, 7 C. & P.

69

Held to be an
unsoundness.

Broken-
backed.
70

Broken-down.

Broken-knees.

Broken-wind.

Bronchitis.

Canker.

WHAT DISEASES CONSTITUTE UNSOUNDNESS OR VICE.

this impairs the natural usefulness of the horse, it is such
an alteration of structure as constitutes wnsoundness.

For broken-down, see “Sprain and Thickening of the Back
Sinews ” (2).

Broken-knees do not constitute unsoundness after the
wounds are healed, unless they interfere with the action of
the joint; and a horse may fall from mere accident, or
through the fault of the rider (£).

Broken-wind is the rupture or running together of some of
the air-cells. It is easily distinguished from thick-wind (J);
in thick-wind the breathing is rapid and laborious, but the
inspiration and expiration are equally so, and occupy pre-
cisely the same time. In broken-wind the inspiration is
performed by one effort, the expiration by two, occupying
double the time, which is plainly to be distinguished by
observing the flanks. The reason is that when the lungs
are expanded, the air will run in easily enough, and one
effort of the respiratory muscles is sufficient for the pur-
pose ; but when these cells have run into each other, the
cavity is so irregular, and contains so many corners and
blind pouches, that it is exceedingly difficult to force it out
again, and two efforts can scarcely effect it. This disease
is also accompanied by a dry and husky cough of a peculiar
sound, and is the consequence of thick-wind (i), and of
those alterations of structure consequent on inflammation ().
It is most decidedly an wnsoundness (0).

The division of the windpipe just before it enters the
lungs, and the numerous vessels into which it immediately
afterwards branches out, are called the bronchial tubes, and
the inflammation of the membrane that lines them is called
bronchitis. It is catarrh (p), extending to the entrance of
the lungs, and is characterized by quicker and harder
breathing than catarrh usually presents; and by a peculiar
wheezing, which is relieved by the coughing up of mecus (q).
It is decidedly an wnsoundness.

Canker is a separation of the horn from the sensible part
of the foot, and the sprouting of fungus matter instead of
it, occupying a portion of or even the whole of the sole and
frog. It is the occasional consequence of bruise, puncture,

(?) Sprain and Thickening of the 194.

Back Sinews, post. (0) Willan v. Carter, before Mr.
(4) Lib. U. K. “The Horse,’? Baron Martin, Lancaster Spr. Ass.
361. 1853.
(2) Thickwind, post. p) See Cough, post.
(m) Thickwind, post. q) Lib. U. K. “The Horse,’
(n) Lib. U. K. “The Horse,” 189.
DISEASES, DEFECTS, ETC.

corn (rv), quittor (s), and thrush (f).
difficult to cure (w), and is an wnsoundness.

Capped hocks may be produced by lying on an unevenly-
paved stable, with a scanty supply of litter, or by kick-
ing (x), in neither of which cases would they constitute
unsoundness, though in the latter they would be an indica-
tion of vice; but in the majority of instances they are
either the consequence of sprain in the hock, or are
accompanied by enlargement of it, when they would be an
unsoundness (7).

A horse with a cataract is unsound. See Blindness (z).

The muscles of the breast are occasionally the seat of
a singular and somewhat mysterious disease. The old
farriers called it anticor and chestfounder. The horse has
considerable stiffness in moving, evidently not referable to
the feet. There is a tenderness about the muscles of the
breast, and occasional swelling, and after a while the
muscles of the chest waste considerably (a). It is evidently
an unsoundness, and was formerly supposed to proceed from
rheumatism; but now, according to later opinions (}),
chestfounder is pronounced to be the result of navicular
disease, which, preventing the forelegs from being exercised
to the same extent as before, produces an absorption of the
muscles of the chest. Anticor is distinguished from chest-
Jounder, and declared to be an abscess of the breast of the
brisket.

But where an action was brought on the warranty of a
horse, and the plaintiff obtained a verdict on the ground
that the horse was chestfoundered, the Court of Common
Pleas refused to grant a new trial on the grounds that there
was no known disease to constitute such an wnsowndness, or
that the defendant was taken by surprise, the plaintiff
having before trial refused to inform him of the cause or
nature of the unsoundness (c).

For chinked in the chine, see Broken-backed (d).

It is extremely

(r) Corns, post.

(s) Quittor, post.

(¢) Thrush, post.

(u) Lib, U. K. “The Horse,”
308.

(z) Kicking, post.
(y) Lib. U. K. ‘The Horse,”
361. See, however, App. to Lib.
U. K. “The Horse,” Ed. 1862, 522,
where an opinion is given that it is
not an unsoundness, on the ground

that it is never occasioned by strains,
and is therefore no more than a
blemish.

(2) Blindness, ante, p. 67.

(a) Lib. U. K. ‘‘The Horse,”
171.

(0) Lib. U. K. ‘The Horse,”
Ed. 1862, App. 491.

(c) Atterbury v. Fairmanner, 8
Moore, 32.

(d) Broken-backed, ante, p. 69.

71

Capped hocks.

Cataract.
Chestfounder.

Chinked in the
chine.
72
Clicking.

Cloudiness.

Contraction.

When held to
be unsound-
ness.

WHAT DISEASES CONSTITUTE UNSOUNDNESS OR VICE.

As to clicking, see Overreach (e).

Cloudiness of the eye is an wnsoundness, as it is almost
quite sure to proceed to complete opacity of the lens, cata-
ract and blindness (/).

In contraction the foot loses its healthy circular form ;
it increases in length, and narrows in the quarters, par-
ticularly at the heel; the frog is diminished in width; the
sole becomes more concave; the heels higher, and lameness,
or at least a shortened and feeling action, ensues. It seems
there is nothing in the appearance of the feet which would
enable a person to decide when contraction is, or 1s not,
destructive to the natural usefulness of the animal; but it
is indicated by his manner of going, and his capability for
work. Lameness usually accompanies the beginning of
contraction ; it is the invariable attendant on rapid contrac-
tion, but it does not always exist when the wiring in is slow
or of long standing. Contraction may be caused by neglect
of paring, by suffering the shoes to remain on too long, by
the want of natural moisture on account of the feet beimg
kept too dry, or by the removal of the bars, or by thrushes (4),
which, however, are much oftener the consequence than the
cause of it. The contraction, however, which is connected
with permanent lameness, though increased by the circum-
stances just mentioned, usually derives its origin from a
cause which acts violently and suddenly, namely, an inflam-
mation of the little plates covering the coffin bone, and not
sufficiently intense to be characterized as acute founder (A).
The contracted heel can rarely or never permanently expand,
as neither the lengthened and narrowed coffin bone can
resume its natural shape, nor can the portion of the frog
which has been absorbed be restored (i).

Contraction of the hoof, when produced by inflammation,
or accompanied by disease in the foot, or any alteration in
its natural structure, though it may not cause lameness at
the time of sale, yet, if lameness be afterwards produced by
it, is an wnsoundness. This was held in the following case,
which was tried before Chief Baron Pollock :—It appeared
that the plaintiff, who was a horsedealer, bought a mare at
Lincoln Fair, warranted sound, for 872 On her way up to
town, she gradually became dead lame on her off foreleg.
She was brought by easy stages to London, and examined

(e) Overreach, post. (h) Founder, post.
(f) Blindness, ante, p. 67. (?) Lib. U. K. “The Horse,’’
(g) Thrush, post. 292. :
DISEASES, DEFECTS, ETC.

by various veterinary surgeons, who at once asserted that
her lameness proceeded from a contraction of the hoof of the
off forefoot, which might have existed, and probably did
exist, before sale, though the disease had not developed
itself in lameness, and that at all events there must have
been a strong predisposition to unsoundness. The defen-
dant wrote a letter offermg to take her back; however,
it was miscarried, and the mare was sold by auction for
25/7. An action was brought for the balance, and on this
evidence the jury gave a verdict for the plaintiff (7).

In the angle between the bars and the quarters, the
horn of the sole has sometimes a red appearance, and is
more spongy and soft than at any other part. The horse
flinches when this portion of the horn is pressed upon, and
there is an occasional or permanent lameness. This disease
of the foot is termed corns, bearing this resemblance to the
corn of the human being, that it is produced by pressure
and is a cause of lameness, but differmg from it in that the
horn, answering to the skin of the human foot, is thin and
weak, instead of being thickened and hardened. When it
is neglected, so much inflammation is produced in that part
of the sensible sole that suppuration follows, which is
succeeded by quittor (4), and the matter either undermines
the horny sole or is discharged at the coronet. The cause
is, pressure on the sole at that part, by the irritation of
which a small quantity of blood is extravasated. The horn
is secreted in a less quantity, and is of a more spongy
nature, and the extravasated blood becomes inclosed im it.
The portion of the foot in which they are situated will not
bear the ordinary pressure of the shoe, and any accidental
additional pressure from the growing down of the horn or
the introduction of dirt or gravel will cause serious lame-
ness. They render it necessary to wear a thick and heavy
shoe or a bar shoe to protect the weakened and diseased
part (2).

Corns are hardly ever found on the hind feet; in any
situation they are very seldom radically cured, and mani-
festly constitute unsoundness.

A cough from catarrh or common cold is a complaint
of frequent occurrence, generally subdued without much
ditficulty, but often becoming of serious consequence when

(7) Greenway v. Marshall, Ex. (2) Lib. U. K. “The Horse,”
Sittings, Dec. 9, 1845. 862.
(%) Quittor, post.

Corns.

Cough.

73
74

Held to be
unsoundness
when tem-
porary.

Confirmed by a
later decision.

WHAT DISEASES CONSTITUTE UNSOUNDNESS OR VICE.

neglected. It is accompanied by a little increase of pulse,
a slight discharge from the nose and eyes, a rough coat, and
a diminished appetite. If the inflammation increases the
complaint degenerates into bronchitis (m), catarrhal fever,
thick-wind (), and broken-wind (0).

Although it was laid down differently by Mr. Justice
Coleridge in Bolden v. Brogden (p), it may now be con-
sidered as settled law that a cough at the time of sale,
whether permanent or temporary, is a breach of a warranty
of soundness, and the subsequent recovery of the horse is
no defence to an action on the warranty (q), but may be
proved in reduction of damages (rv). The law on the subject of
temporary diseases was laid down by Lord Ellenborough
many years ago, and with regard to a cough his Lord-
ship said, “I have always held and now hold that a
warranty of soundness is broken if the animal at the time
of sale had any infirmity upon him which rendered him less
fit for present service. It 1s not necessary that the disorder
should be permanent or incurable. While a horse has a
cough I say he is unsound, although that may be either
temporary, or the coug may prove mortal (s). Any in-
firmity which renders a horse less fit for present use and
convenience is wnsoundness’’ (t).

In a later case an action was brought on the warranty of
a horse, which, immediately on being taken home after
sale, was found to have a cough. The cough became worse,
and on the horse being examined by a veterinary surgeon
eighteen days afterwards, he was pronounced unsound from
diseased bronchial tube and chronic inflammation, cough being
an incident of that disease. However, it appeared that at
the time of the trial the cough had been cured. Mr. Baron
Parke, in summing up, said to the jury, “I have always
considered that a man who buys a horse warranted sound,
must be taken as buying for immediate use, and has a
right to expect one capable of that use, and of being im-
mediately put to any fair work the owner chooses.”

“The rule as to unsoundness is, that if at the time of
sale the horse has any disease which either actually docs
diminish the natural usefulness of the animal, so as to make

(m) Bronchitis, ante, p. 70. Rob. 157.
(n) ‘Thickwind, post. (r) Kiddell vy. Burnard, 9 M. &
(0) Broken-wind, ante, p. 70; W. 670.

Lib. U. K. “ The Horse,’’ 188. (s) Elton v. Brogden, 4 Camp.
p) Bolden v. Brogden, 2M. & 281.

Rob. 113. (t) Elton v. Jordan, 1 Stark. N.

+)
(q) Coates v. Stephens, 2M. & P.C. 127; 18 BR. R. 754.
DISEASES, DEFECTS, ETC.

him less capable of work of any description, or which in
its ordinary progress will diminish the natural usefulness of
the animal; or if the horse has, either from disease or
accident, undergone any alteration of structure that either
actually does at the time, or in its ordinary effects will,
diminish the natural usefulness of the horse, such a horse is
unsound.”

“Tf the cough actually existed at the time of the sale as
a disease so as actually to diminish the natural usefulness
of the horse at that time, and to make him then less
capable of immediate work, he was then wnsound; or if
you think the cough, which in fact did afterwards diminish
the usefulness of the horse, existed at all at the time of
sale, you will find for the plaintiff. I am not now deliver-
ing an opinion formed on the moment on a new subject,
but itis the result of a full previous consideration, as I
find I differ from the law as laid down by a learned
Judge” (w). The jury found a verdict for the plaintiff (v).

Crib-biting, beng an unnatural sucking in of the air,
must be to a certain degree injurious to digestion, must dis-
pose to colic, and so interfere with the strength and useful-
ness and health of the horse. Some crib-biters are good
goers, but they probably would have possessed more endur-
ance had they not acquired this habit; and it is a fact well
established, that as soon as a horse begins to become a crid-
biter, he, in more than nine cases out of ten, begins to lose
condition. He is not to the experienced eye the horse he
was before. The wear of the front teeth, and even the frequent
breaking of them, makes a horse old before his time, and
sometimes renders it difficult or almost impossible for him
to graze (2).

Crib-biting which has not yet produced disease or altera-
tion of structure is not an wnsoundness, but is a vice under
a warranty that a horse is “sound and free from vice.”
Thus, where an action was brought on the warranty of a
horse which had been sold for ninety guineas, the question
was, whether erib-biting, which was the vice in question, was
such a species of unsoundness as to sustain the action. The
horse had been warranted sound generally. Some emi-
nent veterinary surgeons were called as witnesses, who
stated that the habit of crib-biting originated in indigestion ;

(wu) Mr. Justice Coleridge in Bol- (w) Lib. U. K. ‘“*The Horse,”
den v. Brogden, 2 M. & Rob. 113. 362. See also App. to U. K., Ed.
») Coates v. Stephens, 2 M. & = 1862, p. 523.
Rob. 157.

75

Crib-biting.

When not an
unsoundness.
76

Held to be a
vice.

WHAT DISEASES CONSTITUTE UNSOUNDNESS OR VICE.

that a horse by this habit wasted the saliva which was
necessary to digest his food, and that the consequence was
a gradual emaciation. They said that they did not con-
sider crib-biting to be an wnsoundness, but that it might lead
to unsoundness; that it was sometimes an indication of in-
cipient disease, and sometimes produced wnsowndness where
it existed in any great degree. Upon this Mr. Justice
Burrough said, “This horse was only proved to be an in-
cipient crib-biter. I am quite clear that it is not included
in a general warranty,” and the plaintiff was accordingly
nonsuited (2).

In a later case a horse was bought warranted “sound
and free from vice,’ and an action was brought against the
vendor on the ground of its being a erib-biter and wind-
sucker (y). Veterinary surgeons were examined who said
that the habit of crib-biting was injurious to horses; that
the air sucked into the stomach of the animal distended it,
and impaired its powers of digestion, occasionally to such
an extent as greatly to diminish the value of the horse, and
render it incapable of work. Some of the witnesses gave it
as their opinion that ertb-biting was an unsoundness ; it was
not however shown that in the present instance the habit
of erib-biting had brought on any disease, or had, as yet,
interfered with the power or usefulness of the horse.

Mr. Baron Parke told the jury, that to constitute un-
soundness there must either be some alteration in the
structure of the animal, whereby it is rendered less able to
perform its work, or else there must be some disease. Here
neither of those facts had been shown. If, however, the
jury thought that at the time of the warranty the horse
had contracted the habit of erib-biting, he thought that was
a vice, and that the plaintiff would be entitled to a verdict
on that head. The habit complained of might not indeed,
like some others (for instance, that ot kicking (zs), show vice
in the temper of the animal, but it was proved to be a
habit decidedly injurious to its health, and tending tu
impair its usefulness, and came, therefore, in his lordship’s
opinion, within the meaning of the term vice, as used on
such occasions as the present («). And in the case of Pau/
v. Hardwick, some of the most eminent veterinary surgeons

(«) Broennenburgh v. Haycock, (y) Windsucker, post.
Holt’s Rep. 680; 17 R. R. 682; and (z) Kicking, post.
see Washburn vy. Cuddihy, 8 Gray, @) Scholefield v. Robb, 2 M. &
430; Walker v. Holsingion, 48 Vt. Rob. 210.
608 (American Cases).
DISEASES, DEFECTS, ETC.

gave evidence that crib-biting was, in their opinion, at all
events, a vice within the meaning of a warranty that a
horse was free from vice, and the plaintiff had a verdict on
that ground (3).

From sudden or over exertion, the ligaments which tie
down the tendons in the neighbourhood of joints may be
extended, and inflammation, swelling and lameness may
ensue, or the sheaths of the tendons in the neighbourhood
of joints, from their extent of motion in these situations,
may be susceptible of injury. A curd is an affection of
this kind. It is an enlargement at the back of the hock,
about three or four inches below the point of the hock.
Any sudden action of the limb of more than usual violence
may produce it, and therefore horses are found to “throw
out curbs” after a hardly-contested race, an extraordinary
leap, a severe gallop over heavy ground, or a sudden check
in the gallop. Young horses are particularly liable to it,
and horses that are cowhocked, or whose hocks and legs
resemble those of the cow, the hocks being turned inward
and the legs forming a considerable angle outwards; for in
hocks so formed the annular ligament must be continually
on the stretch to confine the tendon (c).

A horse with a curb is manifestly wnsound. But as
curbs do not necessarily produce lameness, it is considered
that horses with curbs may be passed as sound on a special
warranty being given, that, should the curb cause lameness
within a reasonable time (which time should be fixed), the
seller should be responsible.

But if a horse throw out a curb immediately after sale,
it is no breach of a warranty of soundness, even if he had
curby hocks at the time of sale. Thus, where an action was
brought on a breach of warranty of soundness, it appeared
that the plaintiff before sale had objected to the horse
because he had curby hocks. However, he bought him on
a general warranty of soundness being given, and about a
fortnight after sale the horse sprung a curb. At the trial
veterinary surgeons were called by the plaintiff, who stated
that the term curby hocks indicated a peculiar form of the
hock, which was considered to render a horse more liable
to throw out a curb, but did not of itself occasion lameness.

(6) Paul v. Hardwick, Sittings at — v. Morley, 33 Iowa, 120; Walker v.
Westminster, H. T. 1831, MS.; Holsington, 43 Vt. 608.
Chitty on Contracts, 12th ed. 509. (c) Lib. U. K. ‘The Horse,”
And see the American casesof Wash- 267. See also App. to U. K., Ed.
burn v. Cuddihy, 8 Gray, 488; Dean 1862, p. 509.

77

Curb.

Curby hocks
not an un-
soundness.
78

Cutting.

Held not to
be an unsound-
ness.

Dropsy of the

skin.

WHAT DISEASES CONSTITUTE UNSOUNDNESS OR VICE.

Lord Abinger, C.B., told the jury, “that a defect in the
form of the horse, which had not occasioned lameness at
the time of the sale, although it might render the animal
more liable to become lame at some future time, was no
breach of the warranty.” And, on a motion for a new
trial, the Court of Exchequer refused a rule, Mr. Baron
Alderson saying, “ Dickenson v. Follett (d) is expressly in
point for the defendant, and the law as laid down by me on
that occasion has not been questioned in any subsequent
case” (é).

Cutting, like speedy cut, arises from badness of structure,
and being neither a disease nor a bad habit, cannot be pro-
nounced a breach of a warranty of soundness and freedom

trom vice; and although it may be a greater detriment to

the horse than some kinds of unsoundness or vice, yet, if
the wounds occasioned by it did not actually exist at the
time of sale, the purchaser has no legal remedy against the
buyer. This is a case to which the legal maxim caveat
emptor particularly applies; the purchaser should examine
the horse, and if there appear any probability of cutting a
special warranty should be taken against it. It is always
a great annoyance, and the effects produced by it are some-
times most serious. Many horses go lame for a consider-
able period after cutting themselves severely ; and others
have dropped from sudden agony and endangered them-
selves and their riders. Cutting renders a horse liable to
serious injury of the legs, and indicates that he is either
weak or has an awkwardness of gait inconsistent with
safety (7).

In the only decided case on the subject, it was held that
mere badness of shape, though rendering the horse incapable
of work, is not wnsoundness. It appeared that at the time
of sale there existed neither lameness nor wound. And
Mr. Justice Alderson said, ‘The horse could not be con-
sidered unsound in luw merely from badness of shape. As
long as he was uninjured he must be considered sound.
Where the injury is produced by the badness of his action,
that injury constitutes the wnsoundness” (9).

There are two kinds of dropsy, which must both be con-
sidered ; namely, dropsy of the skin and dropsy of the heart.
Dropsical swellings often appear between the forelegs and

(a) Dickenson v. Follett, 1 M. & (f) Lib. U. EK. “The Horse,”
Rob. 299; and see Cutting, post. 363, and App., Ed. 1862, p. 523.

(e) Brown vy. Elkington, 8 M. & (9g) Dickenson v. Follett, 1 M. &
W. 132. Rob. 299.
DISEASES, DEFECTS, ETC.

on the chest; they are effusions of fluid underneath the
skin. They accompany various diseases, particularly when
the animal is weakened by them, and sometimes appear
when there is no other disease than the debility, which, in
the spring and fall of the year, accompanies the changing
of the coat (2).

When the pericardium or the heart itself becomes in-
flamed, the secretion of the pericardium is much increased,
and so much fluid accumulates as to obstruct the beating of
the heart. This is called dropsy of the heart (h), and each
of these diseases is an wnsoundness (2).

Simple catarrh will occasionally, and severe affection of
the chest will generally, be accompanied by a swelling of
the glands under the jaw, and this does not subside for a
considerable time after the cold or fever has apparently been
cured. If the enlargement is considerable, and especially
if tender, and the gland at the root of the ear partakes of
it, and the membrane of the nose is redder than it should
be, the commencement or lurking of some insidious disease
is to be feared (&); and a horse under such circumstances
is unsound.

When the hock is enlarged, the structure of this compli-
cated joint is so materially affected, that although the horse
may appear for a considerable time to do ordinary work well,
he will occasionally fail even as to that, and a few days’
hard work will always lame him (/). A decided case of
enlarged hock is an unsoundness, unless it is a mere blemish,
the result of external injuries.

For ewe neck see star-gazer (m).

Where the coronary ligaments by which the horn of the
coronet is secreted, is either divided by a cut or bruise, or
eaten through by caustic, there will be a division of the
horn as it grows down, either in the form of a permanent
sandcrack (n), or of one portion of the horn overlapping
the other. This is not only a very serious defect, and a
frequent cause of lameness, but it 1s exceedingly difficult
to remedy (0); and must be considered wnsoundness.
Sometimes the horn grows down whole, but the ligament is
unable to secrete that which is perfectly healthy, and

(A) Lib. U. K. “The Horse,” 363. See also Lib. U. K., Ed. 1862,
171. App. 523; and see Capped Hocks,
(t) See Eaves v. Dizon, 2 Taunt. ante, p. 71.

343. (m) Star-gazer, post.
(4) Lib. U. K. “The Horse,” (x) Sanderack, post.
363 (o) Lib. U. K. “The Horse,”

() Lib. U. K. “The Horse,” 301.

79

Dropsy of the
heart.

Enlarged
glands.

Enlarged
hock.

Ewe neck.
False quarter.
80

Farcy.

Water farcy.

Founder.

Gibbing.
Glanders.

WHAT DISEASES CONSTITUTE UNSOUNDNESS OR VICE,

therefore there is a narrow strip of horn of a different and
lighter colour.

Farcy, which is a disease of the absorbents of the skin,
is an unsoundness. It is immediately connected with
glanders (py); they will run into each other, or their
symptoms will mingle together; and before either arrives
at its fatal termination, its associate will almost invariably
appear. An animal inoculated with the matter of /farcy
will often be afflicted with glanders, while the matter of
glanders will frequently produce farcy. They are different
types or stages of the same disease. There is, however, a
very material difference in their symptoms and progress;
and this most important of all, that while glanders are
generally incurable, farcy, in its early stage and mild form,
may be successfully treated (q).

Water jfarcy, confounded by name with the common
farcy, is a dropsical (7) affection of the skin, either of the
chest or of the limbs generally (¢), and is also an wnsoundness.

Inflammation of the foot, or acute founder, is generally
caused by suffering a horse to stand in the cold or wet after
being hard ridden or driven, and is called “fever in the
feet.” This fever is not easily subdued; and, if it be sub-
dued, it sometimes leaves after it some fearful consequences.
The loss of the hoof is not an unfrequent one (s). A
horse, therefore, which either has “fever in the feet,” or
has been at all injured by it, is wnsound.

For gibbing, see Backing and Gibbing (#).

The most formidable of all the diseases to which the
horse is subject is glanders. It is described by writers
fifteen hundred years ago; and it was then, and is now,
not only a loathsome, but an incurable, disease. The
most early and unquestionable symptom of glanders, is an
increased discharge from one or both nostrils; different
from the discharge of catarrh, because it is usually lighter
and clearer in its colour, and more glutinous or sticky. It
is not discharged occasionally and in large quantities like
the mucus of catarrh, but it is constantly running from the
nostril (w). It need hardly be said that a glandered horse
has on him the worst sort of wnsoundness.

(py) Glanders, post. (¢) Backing and Gibbing, ante, p.
(q) Lib. U. K. “The Horse,’? 66.
128, 131. (u) Lib. U. K. “The Horse,”

(r) Dropsy, ante, p. 78. 121; and see Farcy, ante. In an
(s) Lib. U. K. “The Horse,” American case (Woodbury v. Robbins,
290. 10 Cush. (Mass.) 520), it was held
DISEASES, DEFECTS, ETC.

81

It is a disease not only infectious to beasts (w), but also Infectious to

to man. Therefore, knowingly to bring a glandered horse
into a public place is held to be an indictable offence (2).

By the Diseases of Animals Act, 1894 (57 & 58 Vict. Diseases of

mankind.

c. 57), 8. 22 (xxxv.), (xxxvi.), the Board of Agriculture may Animals Act,

make such orders as they think fit, subject and according
to the provisions of the Act, for extending, for all or any of
the purposes of the Act, the definition of disease in the
Act, so that the same shall for those purposes, or any of
them, comprise any disease of animals in addition to those
mentioned in the Act, and in like manner for extending
the definition of animals in the Act, so that the same shall
for the purposes of the Act, or any of them, comprise any
kind of four-footed beast, in addition to the animals men-
tioned in the Act. Accordingly, by the Glanders or Farcy
Order, 1894, horses, &c., are to be deemed “ animals,” and
glanders, including farcy, a “ disease.” And it shall not be
lawful to expose a diseased horse in a sale-yard or other public
or private place where horses, &c., are commonly exposed for
sale. Provisions are also made against placing a diseased
horse in a lair, &c., adjacent to a market or fair, and also with
regard to the carriage and pasturing of diseased horses.

Glaucoma is a dimness or obscurity of sight from an
opacity of the vitreous humour. It is difficult to ascertain,
and is only to be discovered by a very attentive examina-
tion of the eye. It prevents a horse from appreciating
objects, and is therefore an unsoundness (y).

Swelled legs, although distinct from grease, are apt to
degenerate into it. It is an inflammation of the skin of
the heel; sometimes of the fore, but oftener of the hind,
foot. The skin of the heel of the horse somewhat differs
from that of any other part. There is a great deal of
motion in the fetlock, and to prevent the skin from ex-
coriation or chapping, it is necessary that. it should be kept
soft and pliable; therefore in the healthy state of the part
the skin of the heel has a peculiar greasy feel. Under in-
flammation, the secretion of this greasy matter 1s stopped,
the heels become red, dry, and scurfy ; and being almost
constantly in motion, cracks soon succeed ; these sometimes

that the moment symptoms of glan- (w) See Baird v. Graham, 14 Court
ders appear in a horse he is unsound; _— of Sess. 615 (Sco.).
and that whether or not the symp- (c) Reg. v. Henson, 1 Dears. &

toms are in fact the seeds of the Pearce, C. C. 24. .
disease is to be proved by the future (y) Settle v. Garner, cor. Martin,
history of the horse. B., Westminster, Feb. 10, 1857.

oO. G

Glaucoma.

Grease.
82

Grogginess.

Grunting.

Gutta serena.

Hereditary
disease.

WHAT DISEASES CONSTITUTE UNSOUNDNESS OR VICE.

extend, and the whole surface of the heel becomes a mass
of soreness, ulceration, and fungus (z). When this disease
renders a horse unfit for immediate work, it must be con-
sidered an wnsoundness.

The peculiar knuckling over of the fetlock-joint and
tottering of the whole of the fore leg, known by the name
of grogginess, and which is so often seen in old and over-
worked horses, is seldom an affection of either the fetlock
or pastern joints simply, although these have their full
share in the mischief that has been produced. It is some-
times difficult to fix on any particular joint; at other times,
it seems 1o be traced to a joint deep in the foot, where
the flexor tendon runs over the navicular bone. It seems
usually to be a want of power in the ligaments of the
joints, generally produced by frequent and severe sprains,
or by ill-judged and cruel exertion, and, in the majority
of cases, admits of no remedy, especially as dissection often
discovers ulceration within the joints and of the membrane
which lines the cartilage, and even of the cartilage itself,
which it was impossible to reach or to remove (a). When it
exists in such a degree as to diminish the natural useful-
ness of the horse, it must be considered an ansoundness.

Grunting is an wnsoundness ; see Roaring (6).

Gutta serena, commonly called glass-eye, 1s a species of
blindness. The pupil is unusually dilated; it is immov-
able, bright and glassy. It is a palsy of the optic nerve,
or its expansion, the retina, and is usually produced by
determination of blood to the head. It may be caused by
improper treatment of the staggers, where the pressure on
the base of the brain has been so great, that the nerve has
been injured and its function destroyed (c). Itis an un-
soundness.

There is scarcely a malady to which the horse is subject
which is not hereditary. Contracted feet, curb, spavin,
roaring, thick-wind, blindness, notoriously descend from the
father and dam to the foal, which from them inherits its
constitution and endurance (d). It would no doubt be a
matter of great difficulty to maintain an action on a breach
of warranty of soundness on the sale of a horse, on the
ground of hereditary disease alone, but it is presumed to be

a Lib. U. K. ‘‘ The Horse,”’ 276. (c) Lib. U. K. “The Horse,”
a) Lib. U. K. “The Horse,” 1 And see Patent Defects, post
252. See also Lib. U. K. App. Ed. Chap V. :
1862, p. 507. (@) Lib. U. K. “The Horse,”?

(o) Roaring, post. 221. :
DISEASES, DEFECTS, ETC.

just possible that if some general decay of the system or
such like, developing itself after sale, could be proved to be
hereditary, the purchaser might have his action; and the
following case appears somewhat in point :—The plaintiff
bought a hundred sheep warranted sound; about two
months after sale fifty of them died of the goggles, which
was stated by farmers and others conversant with sheep to
arise from “breeding in and in from relations;” and that
sheep so disordered will thrive and seem to be in sound
health until they be about two or three years old; that
there were no means of discovering by the appearance or
otherwise when sheep are affected; that it is generally
fatal, and no cure or prevention known for it, and that it
was reputed among farmers an wnsoundness. Chief Justice
Abbott left it to the jury to say, “whether, at the time of
the sale, the sheep had existing in their blood or constitu-
tion the disease of which they afterwards died, or whether
it had arisen from any subsequent cause.’”’ And on this
direction a verdict was found for the plaintiff (¢).

Kicking, either in the stable or in harness, is a bad and
dangerous habit, and therefore a vice. Some horses,
particularly mares, from fidgetiness and irritability, get
a habit of kickmg at the stall; and this taking place
generally at night disturbs the other horses, and produces
swelled hocks or some more serious injury. It shows vice
in the temper of the animal (/'), and it is very seldom that
a confirmed hicker can be cured (g).

A kidney-dropper will appear quite well at starting, but
after travelling a short distance he will come to a dead
standstill, and, if not supported, will drop down on the
spot. A kidney-dropper is worthless and wnsound.

Lameness, whether temporary or permanent, is an wn-
soundness ; because however temporary it may be or how-
ever obscure, it lessens the utility of the horse and renders
him unsound for the time. How far his soundness may be
afterwards affected must depend on the circumstances of
the case (h).

The law as laid down in Coates v. Stephens (i) and
Kiddle v. Burnard (k), with regard to temporary diseases,

(e) Joliff v. Bendell, R. & M.136. 364.

(f) Lib. U. K. ‘The Horse,”’ (i) Coates v. Stephens, 2M. & Rob.

36. 137, overruling Bolden v. Brogden, 2
(9) Scholefield v. Robb, 2 M. & M. & Rob. 113.

Rob. 210.: ? (k) Kiddell vy. Burnard, 8 M. &
(h) Lib. U. K. “The Horse,” W. 670.

3

G 2

83

Kicking.

Kidney-
dropping.

Lameness.

Temporary

lameness an
unsoundness.
84

Laminitis.

WHAT DISEASES CONSTITUTE UNSOUNDNESS OR VICE.

is the same as was formerly held by Lord Ellenborough,
and will be seen in the following cases:—A horse, sold
warranted sound, was proved to have been lame at the
time of sale; this the defendant admitted, but undertook
to prove that the lameness was of a temporary nature, and
that the horse had afterwards recovered, since which he had
been perfectly sound: however, Lord Ellenborough said,
“T have always held and now hold, that a warranty of
soundness is broken if the animal at the time of sale had
any infirmity upon him, which rendered him less fit for
present service. It is not necessary that the disorder should
be permanent or incurable. While a horse has a cough I
say he is wnsound, although that may either be temporary
or may prove mortal. The horse in question having been
lame at the time of sale, when he was warranted to be
sound, his condition subsequently is no defence to the
action” (2). And in another case, on the trial of an action
on the warranty of a horse where the evidence was very
contradictory, but a witness of the defendant’s admitted
that he had bandaged one of the fore legs of the horse, but
not the other, because the one was weaker than the
other, Lord Ellenborough said, “To constitute unsound-
ness, it is not essential that the infirmity should be of a
permanent nature ; it is sufficient if it render the animal
for the time unfit for service: as, for instance, a cough,
which for the present renders it less useful, and may ulti-
mately prove fatal. Any infirmity which renders a horse
less fit for present use and convenience is wnrsoundness ” (m).
In a previous case it was said to have been held that a
warranty that a horse is sound is not false because the
horse labours under a temporary injury from an accident
at the time the defendant warranted it sound. But the
warranty there appears to have been a qualified one, because
when bargaining the plaintiff observed, that the mare went
rather lame on one leg. The defendant replied, that it had
been occasioned by her taking up a nail at the farrier’s,
and, except as to that lameness, she was perfectly sound (7).

Laminitis is an inflammation of the lamine of the feet,
namely, of the connecting medium between the coffin bone
and the interior of the hoof, there being numerous fleshy
plates which support the foot. The coronary ring is con-
tracted, the soles become convex, the horse puts his heels

(1) Elton y. Brogden, 4 Camp. 281. P.C.127; 18 R. R. 754,
(m) Elton vy. Jordan, 1 Stark. N. (») Garment vy. Bars, 2 Esp. 673.
DISEASES, DEFECTS, ETC.

to the ground first and goes short, and lameness ensues.
Laminitis is such an alteration in structure as is without
doubt wnsowndness (0).

Some of the lower bars of the palate occasionally swell,
and rise to a level with and even beyond the edge of the
teeth; they are very sore, and the horse feeds badly on
account of the pain he suffers from the pressure of the food
on the bars (p). This is called dampas, and being easily
cured, and not dangerous, it is only wnsowndness while it
interferes with the horse’s usefulness.

A diseased liver is of course an wnsowndness (q).

All diseases of the lungs constitute wnsowndness. The
various symptoms were discussed in the case of Hyde v.
Davis (q).

At the bend of the knee, as well as in the inside of the
hock, or a little below it, there is sometimes a scurfy erup-
tion, called madlenders in the fore leg and sallenders in the
hind leg. They seldom produce lameness, but if no means
are taken to get rid of them, a discharge proceeds from
them which it is afterwards difficult to stop (rv). They
must be considered wnsoundness.

The mange is a pimpled or lumpy eruption of the skin,
followed by blotches covered with scurf; these change into
scabs, and occasionally extend over the whole carcase; it is
one of the most contagious diseases to which the horse is
exposed (s). A mangy horse is decidedly unsound.

The navicular joint disease 1s unsoundness, as it produces
lameness, which is rarely cured. It proceeds from sudden
concussion, or from rapid and overstrained motion. Horses
which have irregular and undue exercise are most liable to
it, and particularly those whose feet are contracted (¢). An
action was brought for the breach of an alleged warranty ;
the unsoundness in question was what is termed “ navicular
disease,” which was stated to be an inflammation in a joint
on the inside of the hoof, and to be of such a nature that it
might be alleviated by proper treatment, so far as to render
a horse fit for gentle work, and to make him appear sound
tor a short time and on soft ground; but could seldom, if
ever, be permanently cured, so as to qualify him for hard

(0) Hall v. Rogerson, Newcastle
Spring Assizes, 1847, cor. Alderson,
B.; Smart vy. Allison, Guildhall,
Dec. 17th, 1847, cor. Wilde, C.J.

(py) Lib. U. K. “The Horse,”
134.

(q) Hyde v.

Davis, Liverpool

Spring Assizes, March 24th, 1849,
cor. Coleridge, J.

(r) Lib. U. K. ‘* The Horse,”’ 273.

(s) Lib. U. K. “The Horse,”
879 ; and see Scab, post.

(t) Bywater v. Richardson, 1 A. &
E. 508.

85

Lampas.

Liver disease.

Lungs
hepatized.

Mallenders
and sallen-
ders.

Mange.

Navicular
joint disease.
86

Nerved horse.

Held to be
unsound.

Nose, chronic
discharge.

WHAT DISEASES CONSTITUTE UNSOUNDNESS OR VICE.

work (u). The “navicular disease ” is an unsoundness, and
is incurable (2).

A horse on whom the operation of nerving has been per-
formed may be improved, may cease to be lame, may go
well for many years; but there is no certainty of his con-
tinuing to do so, and he is unsound (y).

This was decided in the following case, soon after
neurotomy had been first introduced by veterinary surgeons.
An action was brought on the warranty of a horse which
had been nerved. Several eminent farriers were called, who
stated that the operation of xerving consisted in the division
of a nerve leading from the foot up the leg; that it was
usually performed in order to relieve the horse from the
pain arising from a disease in the foot, the nerve cut being
the vehicle of sensation from the foot; that the disease in
the foot would not be affected by the operation, and would
go on increasing or not, according to its character; that
horses previously lame from the pain of such a disease
would, when nerved, frequently go tree from lameness, and
continue so for years; that the operation had been found
successful in cavalry regiments, and horses so operated on
had been for years employed in active service; but that in
their opinion a horse that had been xerved, whether by
accident or design, was unsound, and could not be safely
trusted for any severe work, and that it was an organic
defect (s).

It appeared that the horse in question had not exhibited
any lameness. But Chief Justice Best told the jury, “that
it was difficult to say that a horse in which there was an
organic defect could be considered sound; that sownd meant
perfect, and a horse deprived of an useful nerve was imper-
fect, and had not that capacity of service which is stipulated
for in a warranty.” And the jury returned a verdict for
the plaintiff (a).

The most frequent disease of the nose is an increased and
thickened discharge from it. It may properly be called a
nasal gleet. There is a continued and often a profuse dis-
charge of the fluid secreted to lubricate the membrane
lining the nose, when every symptom of catarrh and fever
has passed away, and an almost incredible quantity of

(u) Bywater v. Richardson, 1 A. Maule, J.
& E. 508. y) Lib. U. K. “ The}Horse,”’ 364.
(«) Matthews v. Parker, Gloucester 2) Best v. Osborne, R. & M. 290.
Spring Assizes, April 8th, 1847, cor. a) Ibid.
X

DISEASES, DEFECTS, ETC.

thickened mucus, of different colours; green, if the horse is
at grass; or, if he be stabled, white, straw-coloured, brown,
or even bloody, and sometimes evidently mingled with
matter or pus ; and either constantly running, or snorted out
in masses many times in the day, often continuing several
months, and sometimes eventually destroying the horse (4).
Such a disease is without doubt an wnsoundness.

It occasionally happens that a horse will seldom or never
ive down in the stable. He sometimes continues in apparent
good health, and feeds and works well; but generally his
legs swell, or he becomes fatigued sooner than other
horses (c). It is a bad habit, and when decidedly injurious
to his health, and so tending to impair his usefulness, it is
a vice.

Opacity of the cystalline lens of the eye is an unsoundness.
See blindness (d).

The slide cartilages occupy a considerable portion of the
external side and back part of the foot, the expansion of the
upper part of which they are designed to preserve. These
cartilages are subject to inflammation, and the result of
that inflammation is, that the cartilages are absorbed, and
bone is substituted in their stead. This ossification of the
cartilages frequently accompanies ringbone (e) ; but it may
exist without any affection of the pastern joint. It is
oftenest found in horses of heavy draught. It arises not so
much from concussion as from a species of sprain ; for the
pace of such heavy horses is slow. The cause, indeed, is
not well understood, but of the effect the instances are very
numerous, few heavy draught horses arriving at old age
without this change of structure (7). Like ringbone (g), 1t
is an unsoundness (/).

This very disagreeable noise, known by the name of
« clicking,” “ overreach,” &c., arises from the toe of the hind
foot knocking against the shoe of the fore foot (7). It 1s not
altogether free from danger, as a horse may lame himself
by it; or if the fore and hind shoes become locked, he will
be suddenly thrown. As to the effects of a neglected tread
or overreach, see false-quarter (k) and quittor (/). This

(0) Lib. U. K. “The Horse,”’ 310.
(g) Ringbone, post.

121.
(ec) Lib. U. K. “The Horse,”’ (h) See Simpson vy. Potts, Appen-
341. See App. to Lib. U. K. Ed. dix.
1862, p. id (3) Lib. U. K. “The Horse,”
(d) Blindness, ante, p. 67. 341.
(e) Ringbone, post. (&) False-quarter, ante, p. 79.

(f) Lib. U. K. “The Horse,” (2) Quittor, post.

87

Not lying
down.

Opacity of
the lens.

Ossification of
the cartilages.

Overreach.
88

Parotid gland
ulcerated.

Poll-evil.

Pumiced feet.

Quidding.

Quittor.

WHAT DISEASES CONSTITUTE UNSOUNDNESS OR VICE.

defect, like cutting (m), arises from the bad formation of the
horse (7), and is therefore neither an wnsowndness nor a vice ;
but if suspected, a special warranty should be taken
against it. ;

The parotid gland is placed in the hollow which extends
from the root of the ear to the angle of the lower jaw. In
bad strangles, and sometimes in violent cold, it will swell
to a great size and ulcerate; or an obstruction will arise in
some part of the duct, and the accumulating fluid will burst
the vessel, and a fistulous ulcer will be formed, very
difficult to heal. Such a disease is an wnsoundness (7).

The point of juncture between the head and the bone
nearest the skull is called the at/as, and is the seat of a very
serious and troublesome ulcer termed poll-evi/, caused by
the horse rubbing and sometimes striking his poll against
the lower edge of the manger, or hanging back in the stall,
and bruising the part with the halter; or from a violent
blow on the poll, carelessly or wantonly inflicted, or perhaps
by unnecessary tight reining; the consequence is inflamma-
tion, and a swelling appears, hot, tender and painful. The
swelling increases, and matter is formed, which spreads
around and eats into the neighbouring parts(0). This
disease is an wnsoundness,

The sensible and horny little plates of the foot, which
have been elongated and partially separated during the
intensity of an attack of inflammation, will not always
perfectly unite again, or will have lost much of their
elasticity; and the coffin bone, no longer supported by
them, is let down and presses upon the sole, which yields
to this unnatural weight, and becomes convex or rounded,
and thus, coming in contact with the ground, it gets
bruised and injured (p). This is called puniced feet ; 1t is
incurable, and is decidedly an wnsownduess.

A horse will sometimes partly chew his kay, and sutter
it to drop from his mouth. ‘This is called guidding, and
proceeds either from irregular teeth or sore throat, but
ceases when these are remedied (q). It would be a symptom
of unsoundness while the sore throat lasted.

Quittor is an unsoundness. It has been described as

(m) Brown v. Elkington, 8 M. & 158.
W. 132; Dickenson v. Follett, 1 M. (p) Lib. U. K. “The Horse,’
& Rob. 299. 291.
(n) Lib. U. K. “The Horse,” (q) Lib. U. K. “The Horse,”
2 342.

14
(o) Lib. U. K. ‘*The Horse,”’
DISEASES, DEFECTS, ETC.

being the result of neglected or bad tread or overreach (r) ;
but 1t may be the consequence of any wound in any part of
the foot. In the natural process of ulceration matter is
thrown out from the wound; this precedes the actual
healing of the part. The matter which is thrown out in
wounds of the foot is usually pent up there, and increases
in quantity, and thus urges its way in every direction ; it
forces the fleshy little plates of the coffin bone from the
horny ones of the crust, or the horny sole from the fleshy
sole, or even eats deeply into the internal parts of the foot.
These pipes or sinuses run in every direction, and constitute
the essence of quéttor (s).

On the back part of the leg are sometimes excrescences
called by farriers rat-tails, from the appearance they give
the hair. They generally yield to mild treatment (¢), and
as they are unlikely, from their situation, to impede the
natural usefulness of the horse, it is only in a bad case that
they can be considered wnsoundness.

Rearing, which is unprovoked by the bruising and
laceration of the mouth, is an inveterate and dangerous
bad habit (wu), and a vice.

In the case of Couch v. Culbreth (w) it was held, by the
Supreme Court of South Carolina, that in questions of
unsoundness, where the disease is chronic, like rheumatism,
it is not necessary to show that the symptoms existed at
the time of sale, for subsequent incidents and appearances
may show that the disease existed before the sale, although
the symptoms had not then been observed.

Ringbone commences in one of the pasterns, and usually
about the pastern joint ; but it rapidly spreads and involves
not only the pastern bones, but the cartilages of the foot.
The pastern first becomes connected together by bone,
instead of ligament, and thence results what is called an
anchylosed or fixed joint. Its motion is lost, and the disease
proceeds to the cartilages of the foot and to the union
between the lower pastern and the coffin and navicular
bones; the motion of these parts is impeded or lost, and
the whole of this part of the foot becomes one mass of
spongy bone. When the bony tumour is small and on one
side only, there is little or no lameness, yet from the action
of the foot, and the stress upon the part, the disease has a

(r) Overreach, ante, p. 87. 275.

(s) Lib. U. K. ‘The Horse,” (uw) Lib. U. K. ‘The Horse,”
302. 337.
() Lib. U. K. “The Horse,” (x) 11 Rich. Law (5. C.), 9.

89

Rat-tails.

Rearing.

Rheumatism.

Ringbone.
90

Roaring.

Decisions on
the subject.

WHAT DISEASES CONSTITUTE UNSOUNDNESS OR VICE.

great tendency to spread, after there has been the slightest
enlargement either of the pasterns or round the coronet (y).
The law respecting bone-spavin (3) appears on principle to
be exactly applicable to ringbone, the slightest appearance
of which must be considered an wnsowndness, whether it
produce lameness or not.

Roaring is so called from a peculiar sound uttered by a
horse with this disease, when briskly trotted or galloped,
particularly up hill. In moderate exercise it is scarcely or
not at all perceived; but in brisk exercise it may be heard
at the distance of several yards. The most general cause
of roaring is a tough and viscid substance which is thrown
out in the shape of fluid, and adheres to the side of the
larynz and upper part of the windpipe, materially obstruct-
ing the passage, and sometimes running across it in bands.
Some roarers, on dissection, are found to have the shape of
the larynx and windpipe materially deformed, crooked, and
compressed, and others have presented no appearance of
disease. Roaring isno unusual consequence of strangles (a),
and it may proceed from tight reining (). Lord Mansfield
and Lord Ellenborough seemed to think that roaring was
not necessarily wnsoundness ; but required proof, in each
particular case, that it was symptomatic of disease, or
affected the horse so as to render him less serviceable for a
permanency, as, otherwise, it might merely be a bad habit.
There can be no doubt, however, that every roarer is incon-
venienced by it when in rapid action, and it would be
difficult to say, in any case, that it is merely a bad habit
acquired, without some previous inflammation or alteration
of structure. In practice roaring is always very properly
considered an wnsoundness.

The following cases show the opinions expressed in
courts of law with regard to roaring. An action was
brought on a warranty of a horse, which soon after sale
had turned out avoarer. Mr. Field, a veterinary surgeon
of experience, stated that roaring is occasioned by the
circumstance of the neck of the windpipe being too narrow for
accelerated respiration, and that the disorder is frequently
produced by sore throat or other topical inflammation, and
that the disorder is of such a nature as to incommode a
horse very much when pressed to his speed. And Lord

(y) Lib. U. K. “The Horse,” (a) Strangles, post.
254, 365. (6) Lib. U. K. “The Horse,’’
(z) Bone-spavin, ante, p. 68. 160.
DISEASES, DEFECTS, ETC.

Ellenborough said, “ If a horse be affected by any malady
which renders him less serviceable for a permanency, I
have no doubt that it is an wnsowndness. I do not go by
the noise, but by the disorder ” (c).

And in a previous case, where an action had been
brought on the warranty of a horse, which had turned
out a rowrer, Lord Ellenborough said, “It has been held
by very high authority (Sir James Mansfield, C.J.), that
roaring is not necessarily unsowndness, and I entirely concur
in that opinion. If the horse emits a loud noise, which is
offensive to the ear, merely from a bad habit which he has
contracted, or from any cause which does not interfere with
his general health or muscular powers, he is still to be
considered a sound horse. On the other hand, if the
roaring proceeds from any disease or organic infirmity,
which renders him incapable of performing the usual
functions of a horse, then it does constitute wnsoundness.
The plaintiff has not done enough in showing that this
horse was a roarer. To prove a breach of the warranty, he
must go on to show that the rowring was symptomatic of
disease.”” The defendant had a verdict (d).

Rolling is a pleasant and safe amusement for a horse at
grass, but cannot be indulged in the stable without the
chance of his being dangerously entangled with the collar
and being cast. Yet, although the horse is cast, and
bruised, and half-strangled, he will roll again on the fol-
lowing night, and continue so to do as long as he lives (e).
Now this is a bad habit, and a horse may have his health
and usefulness impaired by being often cast, or half-
strangled and lamed; it must render a horse less valuable,
and when inveterate may perhaps be considered a vice.

Some headstrong horses will occasionally endeavour to
bolt with the best rider. Others, with their wonted saga-
city, endeavour thus to dislodge the timid or unskilful.
Some are hard to hold, or bolt only during the excitement
of the chase; others will run away, prompted by a vicious
propensity, alone. There is no cure here; and being a bad
and dangerous habit, it is a vice (f).

When the saddle has been suffered to press long upon
the withers, a tumour will sometimes be formed, hot and
exceedingly tender. In neglected fistulous withers the ulcer

® Onslow vy. Eames, 2 Stark. (e) Lib. U. K. ‘The Horse,”’
N. P. C. 81; 19 R. R. 680. 342, : ;

(d) Bassett v. Collis, 2 Camp. (f) Lib. U. K. ‘The Horse,’
522; 11 R. R. 786. 337.

91

Rolling.

Running
away.

Saddle-galls.
92

Pimple ona
horse’s skin.

Question for
the jury.

Sallenders.
Sanderack.

WHAT DISEASES CONSTITUTE UNSOUNDNESS OR VICE.

may be larger and deeper, and more destructive than in
poll-evil (y). It may burrow beneath the shoulder-blade,
and the matter may appear at the point of the shoulder or
the elbow; or the bones of the withers may become carious.
On other parts of the back, tumours and very troublesome
ulcers may be produced by the same cause. These little
tumours resulting from the pressure of the saddle are called
warbles ; and when they ulcerate, they frequently become
sitfasts (h). If the smallest warble is in such a situation as
to prevent the putting on of a saddle or harness, it is a
breach of a warranty of soundness (t).

On this point Mr. Baron Parke expressed an opinion iu
Kiddell v. Burnard (k), where he said, “ If the disease were
not of a nature to impede the natural usefulness of the
animal for the purpose for which he is used, as, for in-
stance, if a horse had a slight pimple on his skin, it would
not amount to unsoundness ; but even if such a thing as a
pimple were on some part of the body where it might have
that effect, for instance, on a part which would prevent the
putting a saddle or bridle on the animal, it would be
different.”

It is a question for the jury whether the horse in such
case is fit for immediate use. Thus, where an action was
brought for the price of a horse warranted sound, and the
defendant endeavoured to show that he had a tender place
on his neck, which, when touched, made him plunge, it
being situated where the mane is usually grasped by a
person when mounting, and that he was therefore unsafe
and unfit for use while it lasted; Mr. Justice Wightman
summed up and said to the jury, “I take your opinion
whether you are satisfied that the horse when put into the
defendant’s stable was rendered untit for immediate use to
an ordinary person on account of some disease.” The
jury held that, when delivered, he was quite fit for present
use (J).

Sallenders constitute wnsoundness. See Mallenders (i).

Sanderack, as its name imports, is a crack or division of
the hoof downwards, and into which sand and dirt are very
apt to insinuate themselves; or it is so called, as some say,

(7) Poll-evil, ante, p. 88. W. 670.
(k) Lib. U. K. ‘The Horse,” (2) Ainsley v. Brown, before Mr.
169. Justice Wightman, Newcastle Spring
(i) The same principle is applic- Assizes, 1845.
able to Brwised Shoulder. (m) See Mallenders, ante, p. 85.

(k) Kiddell vy. Burnard,9 M. &
DISEASES, DEFECTS, ETC.

because it most frequently occurs in sandy districts, the
heat of the sand applied to the feet giving them a disposi-
tion to crack. It occurs both in the fore and hind feet,
and indicates a brittleness of the crust, which is sometimes
natural, but oftener the consequence of mismanagement or
disease, particularly of false-quarter (n); and where the
horn has grown down whole, but leaves a narrow strip of
horn of a different and lighter colour, this indicates that
there has been a sandcrack, and that a disposition to it may
possibly remain (0). Sunderack is an wnsoundness; but as
in the case of a curb (p), if a horse, without any indica-
tion of having previously had the disease, throw out a
sandcrack immediately after sale, it is no breach of a war-
ranty of soundness.

The seab is a disease which constitutes a breach of war- Scab.
ranty of soundness, and there is a form of declaration in
the Liber Placitandi (q), in a case where, in consequence
of the existence of such disease, an action was brought on a
warranty given at Leeds in 1649,

By the statute 32 Hen. 8, c. 18,8. 9, intituled “The Statute of
Bill for the Breed of Horses,’ no person shall have or He. 8-
put to pasture any horse, gelding, or mare infected with
scab or mange, in any common or common fields, on pain
of forfeiting 10s., which offence shall be inquirable in the
leet, as other common annoyances be, and the forfeiture
shall be to the lord of the leet. This statute was, how-
ever, repealed by the 19 & 20 Vict. c. 64.

Shivering is a disease known among the London dray Shivering.
horses. The horse constantly shivers, and frequently
cannot lie down; he is unable to back, and consequently
can only be used in the team and not in the shafts. This
would no doubt be a breach of a warranty of sowndness.

Shoulder, bruised. See ante, p. 92, n. (i).

Shying is often the result of cowardice, playfulness or Shying.
want of work. Shying on coming out of the stable is a
habit which proceeds from the remembrance of some ill-
usage or hurt, which the animal has received in coming out
of the stable, and can rarely or never be cured (7). When
confirmed, it is a bad and dangerous habit, and therefore
a vice.

Shying sometimes, however, results from defective sight. Shying the

(x) False-quarter, ante, p. 79. (g) Lib. Plac. 30.
(0) Lib. U. K. ‘* The Horse,” (r) Lib. U. K. ‘*The Horse,”
301. 344.

(p) Curb, ante, p. 77.
94

result of

short-sighted-

ness.

Side-bones.

Slipping the
collar.

Spavin.

Speedy-cut.

Splint.

WHAT DISEASES CONSTITUTE UNSOUNDNESS OR VICE.

An unusual convexity in the formation of the cornea of
the eye will produce short-sightedness, and if, as is often
the case, there is thereby induced a habit of shying, such
shying is an wnsoundness, although there is no disease, and
although it is the natural result of a congenital malforma-
tion of the eye (s).

Side-bones is the same disease as ossification of the car-
tilages (¢). A lameness is caused, which is removed by
absolute rest for a length of time, but quick work on a hard
road soon brings it back again. It is an unsoundness,
whether it produces lameness or not (7).

Many horses are very clever at slipping the collar at
night ; they gorge themselves with food, and run the risk
of being kicked and lamed by other horses (v). As this
may be prevented either by carefully and accurately fixing
his collar, or by keeping him in a loose box, it cannot in
practice be considered a vice.

Spavin is an unsoundness. See Blood and Bog-spavin (w),
and Bone-spavin ().

The inside of the leg, immediately under the knee, and
extending to the head of the inner splint-bone, is subject
to injury from what is termed the speedy-cut, which takes
place when a horse with high action, and in the fast trot,
violently strikes this part either with his hoof, or the edge
of his shoe. Sometimes a bony enlargement is the result ;
at others, great heat and tenderness; and the pain from the
blow seems occasionally to be so great, that the horse drops
as if he were shot (y). Speedy-cut, like cutting (z), is the
consequence of defective shape; and therefore, where a
horse is sound at the time of sale, lameness from a speedy-
cut immediately afterwards is no breach of a warranty of
soundness.

A splint, like a bone-spavin (a), is an excrescence or bony
deposit on the leg of a horse, and the danger in both cases
is the probability of their interfering with his action ; the
bone-spavin, by preventing the proper flexion of the joint,
and the splint, by pressing on the sinews of the leg. Lame-
ness is thus produced by each ; by bone-spavin nearly always,

(s) Holiday v. Morgan, 28 L. J., w) Blood and Bog-Spavin, ante,
Q. B. 9. See ante, p. 63, p. 68.

(t) Ossification of the Cartilages, (x) Bone-spavin, ante, p. 68.
ante, p. 87. (y) Lib. U. K. “The Horse,”

(u) Simpson v. Potts, Carlisle 245.
Spring Assizes, 1847, cor. Rolfe, B. (z) Cutting, ante, p. 78.

(v) Lib. U. K. “The Horse,” 344. (a) Bone-Spavin, ante, p. 68.
DISEASES, DEFECTS, ETC.

by a splint sometimes. It entirely depends on the situation
of the bony tumour on the inside of the shank-bone,
whether a splint is to be considered an unsoundness (6). If
it is not in the neighbourhood of any joint, so as to interfere
with its action, and if it does not press upon any ligament
or tendon, it can be no cause of wnsoundness. And although
it is often very unsightly, it does not lessen the capabilities
and value of the animal (c).

In an action on the warranty of a horse “to be sound,
wind and limb a¢ this time,” the breach of which was lame-
ness, produced by a splint, it was given in evidence that a
splint might or might not be the efficient cause of lameness,
according to its position, its size and extent; that the splint
in this instance was in a very bad situation, as it pressed
upon one of the sinews of the leg and was calculated to pro-
duce, when the horse was worked, inflammation of the
sinew and consequent lameness.

Lord Chief Justice Tindal said, “‘ It now appears that some
splints cause lameness and others do not, and that the con-
sequences of a splint cannot be apparent at the time, like
those of the loss of an eye or any other blemish or defect
visible to a common observer. We therefore think that by
the terms of this written warranty, the parties meant that
this was not, at that time, a spliné which would be the
cause of future lameness, and that the jury have found that
it was. We therefore think that the warranty was
broken” (d).

The back sinews are enclosed in a sheath of dense cellular
substance, to confine them in their situation and to defend
them from injury. Between the tendon and the sheath
there is a mucous fluid to prevent friction; but when the
horse has been overworked, or put to sudden and violent
exertion, the tendon presses upon the delicate membrane
lining the sheath, inflammation is produced, and a different
fluid is thrown out, which coagulates, and adhesions are
formed between the tendon and the sheath, and the motion
of the limb is more difficult and painful. At other times,
from violent or long-continued exertion, some of the fibres

(8) See App. to Lib. U. K. Ed.
1862, 524, where Professor, Spooner
gives it as his opinion that situation
has less to do with the lameness
occasioned by splint than the charac-
ter of the splint. He considers that
the test of its being an wnsoundness
or not is, whether there is tenderness

or not on its being pressed.

(c) Lib. U. K. “The Horse,”
365.

(4) Margetson v. Wright, 1 M. &
Se. 622. See also Smith v. O’ Brien,
11 L. T., N.S. 346; and post, pp.
131, 132.

95

Decision on
the subject.

Sprain and
thickening of
the back

sinews.
96

Star-gazer.

Ewe-necked.

Strangles,

String-halt.

Held to be an
unsoundness.

WHAT DISEASES CONSTITUTE UNSOUNDNESS OR VICE.

which tie the tendons down are ruptured. A slight injury
of this nature is called a sprain of the back sinews or tendons,
and when it is more serious the horse is said to have broken
down (e).

A thickening of the back sinews, which indicates a previous
and violent sprain, is an wnsoundness, because an alteration
of structure has taken place, which must impair the natural
usefulness of the horse.

When the muscle, whose office it is to raise the neck and
elevate the head, is too powerful in its action, the top of the
horse’s head is pulled back and the muzzle protruded, the
horse cannot possibly carry his head well; he is what is
technically called a star-gazer, heavy in hand, boring upon
the bit and unsafe.

Inseparable from this is another sad defect, so far as the
beauty of the horse is concerned ; he is ewe-necked, that is,
he has a neck like a ewe, hollowed above, projecting below,
and the neck rises low out of the chest, sometimes lower
even than the points of the shoulders (7). These being
defects in the formation of a horse are neither unsoundness
nor vice.

Strangles are peculiar to young horses, almost all of
which have it once. It is quite different from glanders (g),
though they have sometimes been confounded. In its early
stage it resembles a common cold and is accompanied with
sore throat. It is not dangerous, and is wnsoundness only
during the time the horse is ill with it (A).

String-halt 1s asingular and very unpleasant action of the
hind leg, arising from an irregular communication of nervous
energy to some muscle of the thigh, observable when
the horse first comes out of the stable, and gradually
ceasing on exercise. It is probably so called from its
resemblance to the sort of ‘‘halt” produced by a “ string ”
tied to the leg of a pig, and held in the hand of the person
driving it. It has often been found in those horses that
have a more than common degree of strength and endurance,
and is almost entirely confined to well-bred horses (7).

There has always, until lately, been a difference of
opinion whether string-halt constitutes unsouwndness ; how-
ever, in Thompson v. Patteson it was held to be so, and as

e) Lib. U. K. “The Horse,” (2) Lib. U. K. “The Horse,’
246. 123 ; Story on Contracts, 309.
(f) Lib. U, K. ‘*The Horse,” (i) Lib. U. K. “The Horse,”

155. 365.
(g) Glanders, ante, p. 80.
DISEASES, DEFECTS, ETC.

the case has not been reported, it will now be given at some
length. It was tried before Mr. Justice Cresswell at the
Liverpool Summer Assizes, 1846, and was an action of
assumpsit on the warranty of a horse, the breach of which
was wilremhaunch or string-halt and spavin.

The plaintiff and defendant were both horse-dealers, and
it appeared that the plaintiff met the horse in question
coming to Chester fair, and at that time there was a kick
apparent on one hock. The plaintiff mounted and tried
him, but said he had got a string-halt; this the defendant
denied, saying there was nothing but the previous kick.
The horse was eventually bought for 527, the defendant
warranting him “ sound, except a kick on the hock.” The
horse was string-haited on both legs.

Veterinary surgeons and other witnesses were called on
both sides, who all agreed that there was string-halt, but
differed in their opinion as to the existence of a spavin.

To prove string-halt unsoundness, Mr. Howarth of Man-
chester, a veterinary surgeon, described it to be a spasmodio
affection of the abductor muscle of the hind leg, a nerve
coming through the trunk being affected. He said that a
horse affected by it loses its condition and is not able to do
so much work.

Mr. Ellis, of Liverpool, a veterinary surgeon, stated that
string-halt is a disease of the sciatic nerve, rendering a
horse less fit for work and impeding him in backing, and
that he had practical experience showing it to be a disease.

Mr. Bretherton, of Liverpool, a veterinary surgeon of
twenty-four years’ practice, said that string-halé is caused
by pressure on the sciatic nerve, that it increases by work,
and is unsoundness. He had seen horses become quite
useless from it, but that more aggravated cases were seen in
the country than any submitted to the veterinary college.
He had seen horses in his father’s stables quite useless
from it, but that at first it is only observable when the
horse is turning round.

The defendant called Mr. Gregson, a veterinary surgeon,
who had attended the horse, and did not consider string-
halt wnsoundness. But on being questioned by the Judge
he admitted that it frequently gets worse, and that when
very bad it impedes the action of the horse, making him less
competent for work.

Mr. Taylor, another veterinary surgeon, said that string-
halt does not impair a horse’s condition. He had examined
the horse in question and considered him sound.

0. H

97
98

Thickening of
the back
sinews.

Thick-wind.

Thinness of
sole.

Held not an
unsoundness.

WHAT DISEASES CONSTITUTE UNSOUNDNESS OR VICE.

Upon this his lordship said, “It is a question for the
jury whether string-halt produces those effects which in the
eye of the law renders him wnsound.” And in summing
up shortly afterwards his lordship said to the jury, “ You
have heard the evidence as to string-halt; if you are
satisfied that it is a disease calculated to impair the natural
usefulness of the horse, you must find for the plaintiff, it
being admitted that the horse had it.” The jury found
a verdict for the plaintiff.

For thickening of the back sinews see Sprain and Thicken-
ing of the Back Sinews (A).

Thick-wind consists of short, frequent and laborious
breathings, especially when the horse is in exercise; the
inspirations and expirations often succeeding each other so
rapidly as evidently to express distress, and occasionally
almost to threaten suffocation. Some degree of it fre-
quently exists in round-chested and fat horses, and heavy
draught-horses are almost invariably thick-winded, and so
are almost all horses unused to exercise or violently ex-
ercised on a full stomach. The principal cause, however,
of thick-wind is previous inflammation, and particularly
inflammation of the bronchial passages. Thick-wind is
often the forerunner of broken-wind (/), and when it pro-
ceeds from inflammation it is an wrsoundness (m).

Thinness of sole which does not afford sufficient protection
to the inner or sensible sole, makes a horse liable to
lameness.

In a case tried at Liverpool before Mr. Justice Cress-
well, it appeared that a horse, whose feet were thin-soled,
was sold warranted sound. Some time after sale he went
lame, and an action was brought on the warranty. Wit-
nesses were called for the defendant, who stated that the
mere fact of a horse’s feet being formed in this manner
would not of itself render him wrsound. And Mr. Justice
Cresswell in summing up said, “The plaintiff must, in order
to recover in this action, make out that the horse was
unsound at the time of sale; a defective formation, how-
ever, not producing lameness at the time of sale, is not, in
my opinion, wnsoundness.” His lordship then referred to
the case of Brown v. Elkington (2), where Lord Abinger, C.B.,

(k) Sprain and Thickening of the 193.

Back Sinews, ante, p. 95. (x) Brown vy. Elkington, 8 M. &
(1) Broken-wind, ante, p. 70. W. 182.
(m) Lib. U. K. “The Horse,”
DISEASES, DEFECTS, ETC.

held that curby-hocks (0) not producing lameness at the
time of sale were not a breach of warranty of soundness,
though a curb was afterwards thrown out. And his lord-
ship then said, “This case shows that the mere fact of
the horse in question being ¢hin-soled at the time of sale, is
not sufficient to constitute a breach of the warranty of sound-
ness ; and therefore, unless you are of opinion that that
peculiar formation had produced, at the time of sale, actual
lameness, you will find for the defendant,” which the jury
accordingly did (p).

In the neighbourhood of the joints are several bags,
containing a mucous fluid, for the purpose of lubricating the
parts, and these sometimes become inflamed and enlarged,
as in wind-galls (7). A similar enlargement is found above
the hock, between the flexor of the foot and the extensor
of the hock, on both sides of which it projects in the
form of a round swelling. It is called a thoroughpin, and
is an indication of considerable work, but, unless it be of
great size, it is rarely attended with lameness (q). It
constitutes unsoundness when it causes lameness, or perhaps
when it is so large as to render it likely that lameness will
soon ensue ; however, in such a case it would be very con-
spicuous, and a special warranty against it had better be
taken.

A thrush is the inflammation of the lower surface of the
inner or sensible frog, and the secretion or throwing out
of pus, almost invariably accompanied by a slight degree of
tenderness of the frog itself, or of the heel a little above it,
and if neglected, leading to diminution of the substance
of the frog, and separation of the horn from the parts
beneath, and the production of fungus and canker (7), and
ultimately a diseased state of the foot, destructive of the
present and dangerous to the future usefulness of the
horse (s). A thrush is an unsoundness.

Tripping arises from a heavy forehead, and from the
fore legs being too much under the horse, so that, like
cutting (¢), it is a consequence of malformation; it also
may indicate tenderness of the foot, grogginess (w), or old
lameness (w). As it arises from such causes it cannot be

(o) Curby-hocks, ante, p. 77. (s) Lib. U. K. “The Horse,”
p) Bailey v. Forrest,2 C.& K. 366.

131. (t) Cutting, ante, p. 78.
(g Lib. U. K. “The Horse,” (u) Grogginess, ante, p. 82.

265. (w) Lib. U. K. “ The Horse,”
(r) Canker, ante, p. 70. 344.

H 2

99

Thoroughpin.

Thrush.

Tripping.
100

Vicious to
clean.

Vicious to
shoe.

Wall-eyed.

Warbles.
Warts.

Water-farcy.

Weak-foot.

WHAT DISEASES CONSTITUTE UNSOUNDNESS OR VICE.

called a bad habit, and is, therefore, not a vice, but in some
cases it indicates an alteration of structure.

A great many horses, perfectly quiet in other respects,
are vicious to clean, and this probably is the consequence of
great sensibility in the skin, and of maltreatment at some
time or other; and although it may be gradually overcome
by kindness («), yet, when it exists in such a degree as to
be dangerous, it 1s a vice.

The same may be said of being vicious to shoe as where
a horse is vicious to clean, except that it is much less
common; however, when it is dangerous to shoe such a
horse, he must be considered to have a vice (y).

Horses perfectly white or cream-coloured have the iris
white and the pupil red. When horses of other colours,
and they are usually pied ones, have a white iris and a
black pupil, they are said to be wall-eyed. Vulgar opinion
has decided that a wadl-eyed horse is never subject to
blindness, but this seems altogether erroneous, as there
appears to be no difference of structure which can produce
this exemption (z).

As to warbles see Saddle-galls (a).

Warts are tumours of variable size, arising first from the
cuticle, and afterwards connected with the true skin by
means of the vessels which supply the growth of the
tumours. They are found sometimes on the eyelids, on
various parts of the skin, and on the prepuce (4). Unless,
however, they exist to such an extent as to impede any of
the natural functions, or in such a situation as to prevent a
saddle, bridle, or harness being put on a horse, they are
not unsoundness (c).

For water-farcy see Farcy (d).

Weak-foot often arises from disease, but in many in-
stances from the natural construction of the foot. In the
slanting of the crust from the coronet to the toe, an angle
is formed, amounting probably to not more than forty
instead of forty-five degrees; and after the horse has been
worked for a year or two, the line, instead of being straight,
becomes a little indented or hollow midway between the
coronet and the toe. Horses with these feet can never

(z) Lib. U. K. ‘The Horse,” (2) Saddle-galls, ante, p. 91.

338. (2) Lib. U. K. “The Horse,”
(y) See Lib. U. K.“ The Horse,” 381.

App. Ed. 1862, 521. (c
(z) See Lib. U. K. “The Horse,” 670.

App. Ed. 1862, 93. (2) Farcy, ante, p. 80.

Kiddell v. Burnard,9 M. & W.
DISEASES, DEFECTS, ETC.

stand much work. They will be subject to corns (e), to
bruises, to convexity of the sole, to punctures in nailing, to
breaking away of the crust, to inflammation of the foot,
and to sprain and injury of the pastern, the fetlock, and
the flexor tendon (f). When it is the result of disease, it
is such an alteration of structure as constitutes wnsoundness.

Weaving is a motion of the head, neck and body from
side to side, like the shuttle of a weaver passing through
the web, and hence the name given to this peculiar and
incessant action. It indicates an impatient, irritable
temper, and a dislike to the confinement of the stable; a
horse which is thus incessantly on the fret will seldom
carry flesh, or be safe to ride or drive (g). This being a
bad habit is a vice, when it either injures a horse’s health,
or makes him dangerous.

The wheeser utters a sound not unlike that of an
asthmatic person when a little hurried. This is a kind of
thick-wind (”), caused by the lodgment of some mucous
fluid in the small passages of the lungs, and it frequently
accompanies bronchitis. Wheezing can be heard at all
times, even when the horse is at rest in the stable, and
thus differs from roaring (2), which is confined to the
increased breathing during considerable exertion (k). It
is an wnsoundness (Z).

The whistler utters a shriller sound than the wheezer,
but only when in exercise, and that of some duration, as
a sudden motion will not always produce it. It seems to
be referable to some contraction in the windpipe or larynx.
The sound is a great nuisance to the rider, and the whistler
very speedily becomes distressed (#). This is an unsownd-
ness (72).

Wilremhaunch is the Lancashire name for string-halt (0).

There are few horses perfectly free from wind-galls, but
they do not interfere with the action of the fetlock or cause
lameness, except when they are numerous or large. Like
thoroughpin (p), they do not constitute wnsoundness unless
they cause lameness, or perhaps when they are so large

(e) Corns, ante, p. 73. (2) Onslow v. Eames, 2 Stark. N.
(f) Lib. U. K. “The Horse,’ P.C. 81; 19 R. R. 680.
310. (m) Lib. U. K. ‘‘The Horse,”

(g) Lib. U. K. ‘The Horse,” 196.
345. (x) Onslow v. Eames, 2 Stark. N.
P
(

(h) Thick-wind, ante, p. 98. . C. 81; 19 R. R. 680.
(i) Roaring, ante, p. 90. 0) String-halt, ante, p. 96.
(k) Lib. U. K. “The Horse,” (p) Thoroughpin, ante, p. 99.

196.

101

Weaving.

Wheezing.

Whistling.

Wilrem-
haunch.
Wind-galls.
102

Wind-suck-
ing.

Wolt’s tooth.

Yellows.

WHAT DISEASES CONSTITUTE UNSOUNDNESS OR VICE.

and numerous as to make it likely they will soon cause
it (9).

t an action which was brought on the warranty of a
horse, the breach of which was wind-galls, a verdict was
found for the plaintiff (7). The wind-galls had probably
produced lameness, as there appeared not to have been
any dispute about the wnsoundness, but only about the form
of action.

Wind-sucking bears a close analogy to crib-biting (s) ; it
arises from the same causes, and the same results follow.
The horse stands with his neck bent, his head drawn in-
ward, his lips alternately a little opened and then closed,
and a noise is heard as if he were sucking (¢). It is a vice.

In some few instances the second teeth do not rise
immediately under the temporary or middle teeth, but
somewhat by their side. The tooth is pushed out of its
place to the fore part of the first grinder, and remains for a
considerable time under the name of a wo//’s tooth, causing
swelling and soreness of the gums, and frequently wound-
ing the cheeks. This is easily remedied by drawing the
tooth («), and though an wnsoundness while it lasts, no
dispute would be likely to arise in practice respecting it.

The yellows, otherwise the jaundice, is the introduction
of bile into the general circulation, and which is usually
caused by some obstruction in the ducts or tubes which
convey the bile from the liver to the intestines. It ex-
hibits itself by a yellowness of the eyes and mouth, and
any part of the skin not covered with hair (x). It is, while
it lasts, an wnsoundness.

a6 Lib. U. K. “The Horse,” (w) a U. K. “The Horse,’
6. 140. See, however, Lib. U. K.
(r) Stuart ¥. Wilkins, Doug. 18. App. Ed. 1862, 487.
(s) Crib-biting, ante, p. 75. (x) Lib. U. K. “The Horse,’
(t) Lib. U. K. “The Horse,” 213,
340.
CHAPTER V.

WARRANTY; SALE AND WARRANTY BY AN AGENT; AND
PATENT DEFECTS.

Warranty.

In buying a horse, as well as in making an exchange, the
maxim caveat emptor is the rule of law, and a party who
has got an unsound horse has in neither case any remedy
unless there be evidence either of express warranty or of
fraud. For in the general sale of a horse the seller only
warrants it to be an animal of the description it appears
to be, and nothing more; and if the purchaser makes no
inquiries as to its soundness or qualities, and it turns out to
be unsound or restive or unfit for use, he cannot recover as
against the seller, as it must be assumed that he purchased
the animal at a cheaper rate (a).

According to the Roman law (6), and in France (c) and
Scotland, and partially in America (d), there is always an
implied contract that the vendor has the right to dispose of
the article which he sells.

In England the common law rule was formerly stated to
be that on a sale of specific goods there was no implied
warranty of title, and that, in the absence of fraud, the
seller was not liable for a defect of title unless there was an
express warranty or an equivalent to it by declaration or
conduct (e). It was, however, well settled that in an
executory agreement, the seller impliedly warranted his
title in the goods which he promised to sell (f); and so
wide a construction was put upon the circumstances which
might be held to be equivalent to an express warranty that
Lord Campbell said that the exceptions had well nigh eaten
up the rule (g). This dictum was quoted with approval by

(a) Jones v. Bright, 3 M. & P. also Morley v. Attenborough, 3 Exch.
78 510, per Parke, B.

(s) Domat, book 1, tit. 2, s. 2, (e) Morley v. Attenborough, 3
art. 3. Exch. 500; 18 L. J., Ex. 148.

(ec) Code Civil, chap. 4, s. 1, art. (f) Benj. on Sales, 4th Ed. p, 622;
1603. Morley v. Attenborough, ubi supra.

(d@) 1 John’s Rep. 274 (Amer.) ; (g) Sims v. Marryat, 17 Q. B.

Story on Sales, 4th Ed. 367. See 281.

Warranty
required in
buying a
horse.

Implied
undertaking as
to title, &c.
104

WARRANTY ; SALE AND WARRANTY BY AGENT, ETC.

Erle, C.J., in Eichholz v. Bannister (h), and since the deci-
sion in that case there can be little doubt but that, as Mr.
Benjamin, in his work on “ Sales,” (7) says, the exceptions
had become the rule, and the old rule had dwindled into
the exception. This, at all events, appears to be the prin-
ciple upon which the judgment of the Queen’s Bench Divi-
sion (Lord Coleridge, L.C.J. and Lord Esher, M.R.) was
founded, in the recent case of Edwards v. Pearson (k). In
that case a horse which had been stolen was sold by auction,
a few days after the theft, at a horse repository, to the
defendant, who, almost immediately afterwards, sold it to
the plaintiff, who paid him 15/. for it. Soon afterwards the
owner traced the animal, and the plaintiff gave it up to the
police and then demanded back from the defendant the sum
he had paid for it, and, being refused, brought an action in
the County Court to recover the price. The judge thought
that though the parties had no idea of any warranty of title,
but merely a sale of the horse, there was an implied
warranty by the defendant that he had a right to sell it,
and gave judgment for the defendant accordingly. On
appeal to the Divisional Court this judgment was affirmed,
the Court being of opinion that the plaintiff intended to buy
a horse and not a lawsuit.

But any doubt that may have existed subsequently to the
decision in Lichhols v. Bannister (1), in relation to the
existence of an implied warranty of title on the sale of
specific goods, is entirely removed by s. 12 of the Sale of
Goods Act, 18938, which enacts as follows :—

“Jn a contract of sale, unless the circumstances of the
contract are such as to show a different intention, 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 yoods,
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 imphed warranty that the goods shall be free
from any charge or incumbrance in favour of any

(2) 17 0. B. N.S. 708; 3

8. 4L.J., (2) Ubi supra. See Hall v. Con-
C.P. 105; 12 L. T., N.8. 76;

13 der, 2.C. BN. 8. 40; Bagueley v.
W. BR. 96. Hawley, L. R., 2 CG. Py 625; 36
(i) 4th Ed., p. 634. L. J., C. P. 328.

(x) 6 Times L, R. 220.
WARRANTY.

third party, not declared or known to the buyer
before or at the time when the contract is made.”

As sub-s. (1) of this enactment uses the term “implied
condition ” in contrast with implied warranty in sub-ss. (2),
(3), the buyer may, on a breach thereof, repudiate the con-
tract under s. 11 (1), (a), post, p. 108, and recover the price
paid on the ground of a failure of consideration (under
s. 54), or may treat the breach as a breach of warranty
only under s. 11, sub-s. (1), (a) (m).

A dispute respecting the title of different parties to a
horse may be decided by an interpleader issue. Thus,
a question was tried whether certain race-horses named
Aigis, Ninnyhammer, and War Eagle, were the property of
the plaintiff when they were seized in execution by the
sheriff of Cambridgeshire, at Newmarket, under a /i. fa.,
consequent on a judgment obtained by the defendant against
a gentleman named Carew, and a jury found a verdict for
the plaintiff (x).

But an interpleader order will not be granted where the
respective claims are not co-extensive. Thus, where the
defendant, the proprietor of a horse repository, sold there,
by public auction, a horse to the plaintiff, warranted quiet
to ride and in harness, but subject to a condition by which,
if considered by the buyer incapable of working from any
infirmity or disease, it might be returned on the second
day after the sale, and the matter determined by veterinary
surgeons according to the terms provided for in such con-
dition; and the horse was accordingly returned by the
plaintiff, who demanded to have back the money he had
paid for the purchase, and this being refused he brought
an action against the defendant for breach of warranty ;
and the person who had placed the horse at the repository
for sale claimed of the defendant the proceeds of the sale,
stating that the horse had left the repository perfectly
sound. It was held that the defendant was not entitled to
an interpleader order (0).

Where there isa contract for the sale of goods by deserip-
tion, there is an implied condition that the goods shall
correspond with the description (p).

(m) Kerr & Pearson-Gee on the Q. B. 377.

Sale of Goods Act, 1893, p. 80. See (0) Wright v. Freeman, 48 L. J.,
also Eichholzv. Bannister, ubi supra. C. P. 276; 40 L. T., N.S. 134.

(n) Ford vy. Sykes, before Lord (p) Sale of Goods Act, 1893, s. 13.
Campbell, C.J., Cambridge Spring See also Bowes v. Shand, 2 App. Cas.
Assizes, 1853. See also Cochraneyv. 455; 46 L. J., Q. B. 561; 36L. T.,
Moore, 25 Q. B.D. 57; 59 L. , =N.S. 857; 25 W. R. 730.

105

Mode of
trying a dis-
puted title.

Sale by
description.
106

Implied
conditions as
to quality or
fitness.

WARRANTY ; SALE AND WARRANTY BY AGENT, ETC.

According to Bowen, L.J. (q): “An implied warranty,
or, as it is called, a covenant in law, as distinguished from
an express contract or express warranty, really is, in all
cases, founded upon the presumed intention of the parties
and upon reason. The implication which the law draws
from what must obviously have been the intention of the
parties, the law draws with the object of giving efficacy to
the transaction, and preventing such a failure of considera-
tion as cannot have been within the contemplation of either
side. . . . I believe if one were to take all the cases .
it would be found that in all of them the law is raising an
implication from the presumed intention of the parties .. . In
business transactions, . . . what the law desires to effect
by the implication is to give such business efficacy to the
transaction as must have been intended, at all events, by
both parties, who are business men—not to impose on one
side all the perils of the transaction, or to emancipate one
side from all the chances of failure, but to make each party
promise in law as much, at all events, as it must have been
in the contemplation of both parties that he should be
responsible for in respect of those perils and chances.”

It is a rule of the common law that, with regard to the
sale of ascertained chattels, there is no implied warranty of
quality, unless there are some circumstances beyond the
mere fact of a sale, from which it may be implied (r), The
maxim of the common law, caveat emptor, is the general
rule applicable to sales, so far as quality is concerned, and
except there be deceit, either by a fraudulent concealment
or fraudulent misrepresentation, or the seller has given an
express warranty, or unless a warranty be implied from the
nature and circumstances of the sale, no action for unsound-
ness lies by the buyer against the seller upon the sale of a
horse or other animal (s). And this rule is recognized and
declared by s. 14 of the Sale of Goods Act, 1893, in the
following terms :—

“ Subject to the provisions of this Act and of any statute in
that behalf, there is no implied warranty or condition as to
the quality or fitness for any particular purpose of goods
supplied under a contract of sale, except as follows :—

(q) The Moorcock, 14 P.D. 64; Hart, 23 L. T., N.S. 851; 19
68 L. J.P. 73; 60 L. T.,N. 8. W.R. 331; Ward v. Hobbs, 4 App.

654; 87 W. R. 439. Cas. 13; 48 L. J., 0. P. 281; 40
(r) Chanter v. Hopkins, 4M. & UL. T., N. 8.73; 27 W.R. 114.
W. 399; Hill v. Balls, 2 H. & N. (s) Hill v. Bails, wbi supra. See

304; 27 L.J., Ex. 44; Osborne vy. also Benj. on Sales, 4th Ed., 637.
WARRANTY.

(1) Where the buyer, expressly or by implication, makes
known to the seller the particular purpose for which
the goods are required, so as it show that the buyer
relies on the seller’s skill or judgment, and the
goods are of a description which it is in the course
of the seller’s business to supply (whether he be the
manufacturer or not) there is an implied condition
that the goods shall be reasonably fit for such pur-
pose, provided that in the case of a contract for the
sale of a specified article under its patent or other
trade name, there is no implied condition as to its
fitness for any particular purpose :

(2) Where goods are bought by description from a seller
who deals in goods of that description (whether he
be the manufacturer or not), there is an implied
condition that the goods shall be of merchantable
quality ; provided that if the buyer has examined
the goods, there shall be no implied condition as
regards defects which such examination ought to
have revealed :

(3) An implied warranty or condition as to quality or
fitness for a particular purpose may be annexed by
the usage of trade.

(4) An express warranty or condition does not negative
a warranty or condition implied by this Act unless
inconsistent therewith.”

The reason laid down for requiring a warranty of sound-
ness in buying a horse is, that it is well known they have
secret maladies which cannot be discovered by the usual
trials and inspections, and that a warranty prevents the
purchaser from being damnified by those latent defects
against which no prudence can guard; as it differs from
the case of a manufactured article, where a merchant, by
providing proper materials and workmanship, may prevent
defects (¢). And the late Mr. Youatt said, “ A man should
have a more perfect knowledge of horses than falls to the
lot of most of men, and a perfect knowledge of the vendor
too, who ventures to buy a horse without a warranty”? (7).
But the same, mutatis mutandis, may very justly be said of
a person who ventures to give a warranty on the sale of a
horse.

If a buyer, however, means to protect himself from

(t) 1 Rol. Abr. 90; Jones v. (u) Lib. U. K. ‘*The Horse,’’
Bright, 5 Bing. 644. 368.

107

Reason for
requiring a
warranty.

Buyer should
108

WARRANTY ; SALE AND WARRANTY BY AGENT, ETC.

protect himself hidden defects, he must take a warranty, and he is not

by one.

Definition of
warranty.

No particular
words neces-
sary.

When condi-

protected otherwise, unless he can make out fraud (vr).

By s. 62, sub-s. (1) of the Sale of Goods Act, 1898,
“warranty” as regards England and Ireland, means an
agreement with reference to goods which are the subject of
a contract of sale, but collateral to the main purpose of
such contract, the breach of which gives rise to a claim for
damages, but not to a right to reject the goods and treat
the contract as repudiated.

As regards Scotland a breach of warranty shall be
deemed to be a failure to perform a material part of the con-
tract.

It is much better both for the buyer and seller, when
the latter states whether he professes to warrant or not;
because where nothing has been said on that point, a con-
siderable degree of doubt must frequently rest upon the
case, and then it is only by interpreting the expressions
used at the time of sale that even an opinion can be formed
as to whether a warranty were ever intended. No particu-
lar words are necessary to constitute a warranty; if a man
says, “This horse is sound,” that is a warranty (7); and
it is not necessary that the seller should say, “I warrant;”
it is sufficient if he says that the article is of a particular
quality or is fit for a particular purpose (y). The general
rule laid down by Mr. Justice Bayley is, that whatever the
vendor represents at the time of sale is a warranty (s).
Therefore if a person at the time of sale say, “You may
depend upon it the horse is perfectly quiet and free from
vice,” itis a warranty (a). Words, however, of expecta-
tion and estimate only do not amount to a warranty (0).

A condition i a contract of sale as opposed to a warranty
is not defined in the Sale of Goods Act, but appears by
implication, from ss. 11 and 62 (1), supra, to be an essential
term, a breach of which entitles the buyer to reject the
goods, and treat the contract as repudiated (c).

Section 11 of the Sale of Goods Act is as follows:

“ (1) In England or Ireland—

(a) Where a contract of sale is subject to any condition

(w) Ormrod v. Huth, 14M. & W. 164; 25 W. R. 318—C. A.

661. (2) Wood v. Smith, 4 C. & P. 45.
(v) Per Best, C.J., Salmon v. (a) Cave v. Colman, 3 M. & R. 2.
Ward, 2 C0. & P. 211. (2) A’ Connel v. Murphy, L. R.,

(y) Der Best, C.J., Jonesv. Bright, 5 P.C. 208; 28 L. T., N)S. 713.
3M. & P. 173. See also Randall (c) See Kerr & Pearson-Gee on
vy. Newson, 2 Q. B. D. 102; 46 — the Sale of Goods Act, 1893, p. 68.
L. J., Q. B. 259; 86 L.T., N. 8.
WARRANTY.

to be fulfilled by the seller, the buyer may waive the
condition or may elect to treat the breach of such
condition as a breach of warranty, and not as a
ground for treating the contract as repudiated.

(b) Whether a stipulation in a contract of sale is a con-
dition, the breach of which may give rise to a
right to treat the contract as repudiated, or a war-
ranty, the breach of which may give rise to a claim
for damages but not to a right to reject the goods
and treat the contract as repudiated, depends in each
case on the construction of the contract. A stipula-
tion may be a condition, though called a warranty
in the contract.

(c) Where a contract of sale is not severable, and the
buyer has accepted the goods, or part thereof, or
where the contract is for specific goods, the pro-
perty in which has passed to the buyer, the breach
of any condition to be fulfilled by the seller can only
be treated as a breach of warranty, and not as a
ground for rejecting the goods and treating the con-
tract as repudiated, unless there be a term of the
contract, express or implied, to that effect.

(2) In Scotland, failure by the seller to perform any
material part of a contract of sale is a breach of con-
tract, which entitles the buyer either within a reasonable
time after delivery to reject the goods and treat the con-
tract as repudiated, or to retain the goods and treat the
failure to perform such material part as a breach which
may give rise to a claim for compensation or damages.

(3) Nothing in this section shall affect the case of any
condition or warranty, fulfilment of which is excused by
law by reason of impossibility or otherwise.”

By sub-s. (1) (c) of the above enactment, the buyer
must, in the absence of any special term to the contrary,
treat the breach of a condition only as a breach of warranty
where (1) he has accepted part of the goods under an entire
contract, or (2), there has been a sale of specific goods.

With regard to part acceptance under an entire con-
tract, the principle is that the buyer, “by not repudiating
the contract has affirmed it” (d). “If I bargain for the
purchase of ten horses . . . and the seller delivers only
nine, I may say to him, ‘I will not accept them, my
bargain was for ten.’ But if, instead of so doing, I take

(a) White v. Beeton, 7 H. & N. 42, per Channel, B.

109

tion to be
treated as
warranty.

Acceptance
under entire
contract.
110

Sale of specific
goods.

Goods which
have perished.

Goods perish-
ing before sale,
but after
agreement to
sell.

A sound price
not tanta-
mount to a
warranty.

A general
warranty.

A qualified
warranty.

WARRANTY; SALE AND WARRANTY BY AGENT, ETC.

the nine horses and use them, that which at one time was
a condition precedent by my conduct has become no con-
dition precedent” (¢).

With regard to sales of specific goods, “If a specific
thing has been sold with a warranty of its quality, under
such circumstances that the property passes with the sale,
the vendee having been thus benefited by the partial execu-
tion of the contract, and become the proprietor of the
thing sold, cannot treat the failure of the warranty as a
condition broken (unless there is a special stipulation to
that effect in the contract), but must have recourse to an
action for damages in respect of the breach of warranty” (/).

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 the contract is made, the con-
tract 1s void (9).

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 (A).

Thus where A. agreed to sell a specific horse to B. upon
condition that it should be taken away by B. and tried by
him for eight days, and returned at the expiration of that
period if B. did not think it suitable for his purposes, and
the horse died on the third day after it was placed in B.’s
stable, without fault of either party; it was held by
Denman, J., that A. could not maintain an action for
the price as for goods sold and delivered (i).

There was at one time a general opinion that a sound
price given for a horse was tantamount to a warranty of
soundness ; but Lord Mansfield considered the doctrine to
be so loose and unsatisfactory that he rejected it, and laid
down the following rule: “There must either be an express
warranty of soundness, or fraud in the seller, to maintain an
action ”’ (4).

A general warranty is an unconditional undertaking that
a horse or any other article rea//y is what the warrantor
professes it to be.

A warranty may be either general or qualified. If a

(ce) White v. Beeton, 7 H. & N. (g) Sale of Goods Act, 1893, s. 6.
42, per Bramwell, B. h) Sale of Goods Act, 1893, s. 7.
(f) Per Curiam, Behn v. Burness, i) Biphick v. Barnes, 5 C. P. D.

3B. & 8. at p. 755. See also Street 321; 49 L. J., C. P. 698; 29W.R.
y. Blay,2 B. & Ad. 456, 462. As 139.

to remedy for breach of warranty, see (4) Parkinson y. Lee, 2 East, 323 ;
post, Chap. VIII. 6R. R. 429.
WARRANTY.

person at the time of his selling a horse say, “I never
warrant, but he is sound so far as I know,” it is a qualified
warranty, and an action for breach of warranty may be
maintained upon it by the purchaser, if it can be proved
that the seller knew of the unsoundness (2).

By the conditions of sale at repositories and public
auctions, a specified short time is usually allowed, within
which the purchaser must give notice of any breach of
warranty. If he neglect to do this, he has no remedy,
unless such condition has been rendered inoperative by
fraud or artifice. Andina case where a warranty was to
last till the noon of the following day, when the sale was to
become complete, Mr. Justice Littledale said, “The war-
ranty here was as if the vendor had said, ‘after twenty-four
hours I do not warrant;’ such a stipulation is not un-
reasonable ”’ (m).

In the case of Chapman v. Gwyther (n) the seller of a
horse signed the following warranty :—

“June dth, 1865. Mr. C. bought of Mr. G. G. a bay
horse for ninety pounds. Warranted sound.
902. G. G.
“ Warranted sound for one month.—G. G.”’

The Court of Queen’s Bench held that the latter words
limited the duration of the warranty, and meant that the
warranty was to continue in force for one month only; and
that the complaint of unsoundness must therefore be made
by the purchaser within one month of the sale.

Where a horse was sold by public auction at a repository
warranted to be a good worker, subject to the condition
that “horses warranted good workers, whether sold by
private treaty or public auction, not answering such war-
ranty must be returned before five o’clock of the day after
the sale, shall then be tried by a person to be appointed by
the auctioneer, and the decision of such person shall be
final ;”’ and the horse was not returned within the stipulated
time: it was held, on demurrer, in an action on the war-
ranty, that the buyer’s only remedy was under the condi-
tion, and that he could not maintain the action (9).

(2) Wood v. Smith, 4 C0. & P.45. 74.

See also Pinder v. Button, 7 L. T., (vn) L. B., 1 Q. B. 463; 35 L. J.,
N. 8. 269. Q. B. 142; 14 L. T., N. 8. 477.
(m) Bywater v. Richardson, 1 A. (0) Hincheliffe v. Barwick, 5 Ex.

& E.508; 8. ¢. 3N. & M. 748; D.177; 49 L. J., Ex. 495; 42L. T.,
and see Best v. Osborne,2 C.& P. N.S. 492—C. A.

A limited
warranty.

111
112

Where per-
formance of
condition
impossible.

A special
warranty.

WARRANTY; SALE AND WARRANTY BY AGENT, ETC.

The purchaser, however, may return the horse at any
time within that specified in the conditions of sale, even
though he has notice of the breach of warranty before he
removes the horse, and the horse, through an accident
having happened to it whilst it was in his possession, but
not by his default, becomes depreciated in value ( 7).

But the mere fact of the contract of sale containing a condi-
tion for the return of the horse within a specified short time,
in the event of its not answering the warranty given, will not
deprive the buyer of his remedy for the breach, if the per-
formance has become impossible without any fault on the
part of the seller (q).

Where a horse was sold by auction at a repository
warranted quiet to ride, and one of the conditions of the
contract was to the effect that if the buyer contended that
the horse did not correspond with the warranty it must be
returned on the second day after the sale, and that the non-
return within the time limited should be a bar to any claim
on account of any breach of warranty; and the horse was
removed by the buyer, and while being ridden on the next
day, ran away, fell, and was so injured that it could not
safely be returned on the second day after the sale, but the
buyer gave notice to the seller on that day that the animal
was not according to the warranty, and was unfit to travel ;
it was held that under these circumstances the non-return
of the horse within the period stipulated by the condition
was no bar to an action for breach of warranty; Lord
Coleridge, L.C.J., saying that, “ the condition as to the return
of the horse was subject to the well-known rule that such
agreements imply the continued existence of the subject-
matter of the agreement. The result of the accident was
to disable the animal so completely as to destroy it as a
horse for all purposes of draught or riding” (7).

When there is any suspicious place apparent to the
parties, which they discuss, or if the seller knows of some
defect and does not wish to answer for any unsoundness
which may proceed from it, he should give a warranty
specially excepting his lability for any unsoundness which
may proceed trom the defect in question (s); or expressly

(p) Head _v. Tattersall, L. R. 7 826. See also 8. 7 of the Sale of
Ex.7; 41 L.J., Ex.4; 261L.7T., Goods Act, 1893, ante, p. 110.
N. 8.631. See, in America, Carter (7) Chapman v. Withers, 20 Q. B.
v. Wallace, 35 Hun. 189; Hunt v. D. 824; 57 L.J.,Q. B. 487: 37
Wyman, 100 Mass. 198. W. R. 29. :

(g) Taylor v. Caldwell, 3B. & 8. (s) Jones v. Cowley, 4 B. & C.
WARRANTY.

state what he warrants: as where a mare was warranted
to be “a good hunter, and to have one eye’ (¢). But
where the purchaser requires the vendor to be answerable
for some defect, he should take a special warranty against
the effects which may be likely to proceed from it.

The buyer should always take care to distinguish
between a warranty and a representation (wu) ; however, he
is safe if he take a written warranty, and refuse to believe
any representation the seller will not commit to paper. A
written warranty should comprehend not only soundness,

but freedom from vice, and also quietness and age, if

necessary.

Also any special terms which may have been agreed upon
at the time of sale; for instance, an agreement to take back
the horse, im case he does not suit or 1s unsound, should be
made a part of the written warranty or agreement upon
which the sale is effected (w).

The following form of receipt and warranty will be found,
for general purposes, short and comprehensive :—

“Received of P. J. D. fifty pounds for a grey gelding,
warranted only six years old, sound, free from vice, and

quiet to ride or drive either in single or double harness.
50/. R. F.”

Where the whole matter passes in parol, all that has
passed may sometimes be taken together as forming parcel
of the contract, though not always, because matter talked
of at the commencement of a bargain may be excluded by
the language used at its termination; but if the contract
be in the end reduced to writing, nothing which is not
found in the writing can be considered as a part of the
contract (7).

A warranty may be gathered from letters which have
passed between the parties. But where it is sought to
import a warranty into a contract for sale contained in
letters, which are ambiguous in their terms, it is competent
to the party sought to be charged to give evidence of all
the surrounding facts and circumstances, for the purpose of
showing that a warranty was not contemplated by the
parties (y).

445; S.C. 6D. & R. 533; and (w) Payne v. Whale, 7 East, 274.

Hemming v. Parry, 6 C. & P. 580. (c) Per Abbott, C. J., Hain v.
(t) Higgs v. Thrale, betore Chief Old, 2 B. & C. 627.

Baron Pollock, Feb. 18, 1850. (y) Stucley v. Bailey, 31 L. J.,
(uw) See post, p. 134. Ex. 483.

Oo. I

113

A written
warranty.

A special

agreement.

Form of
warranty.

Effect of a
written
warranty.

Warranty may
be gathered
from letters.
114

The parties
are bound by
it alone.

It cannot be
extended by
implication.

A warranty
is several
though the
contract be
entire.

A warranty
applies to the
time of sale.

Wuarranting a
future event.

WARRANTY; SALE AND WARRANTY BY AGENT, ETC.

The parties are bound by the written warranty alone,
unless some fraud can be shown; and even if there be a
representation it does not avail. If a man brings me a
horse, and makes any representation whatever of his quality
and soundness, and afterwards we agree in writing for the
purchase of the horse, that shortens and corrects the repre-
sentation ; and whatever terms are not contained in the
contract do not bind the seller, and must be struck out of
the case (zs).

Upon a contract for the sale of goods with a particular
express warranty, the Court will not extend such warranty
by implication, as the maxim, expresswm facit cessare tacitum,
applies to such case (a). Thus, if a man sell a horse, and
warrant him to be sound, the vendor knowing at the time
that the purchaser wants him for the purpose of carrying a
lady, and the horse, though sound, proves to be unfit for
that particular purpose, this would be no breach of
warranty (a).

When several horses are sold at an entire price, and a
warranty is given as to all, the contract of sale is entire,
but the warranty is several (0).

A warranty only extends to the state of a particular
commodity at the time of sale, unless the warrantor er-
pressly fixes some future period to which he undertakes to
extend it (c). Thus Blackstone says, “A warranty can
only reach to things in being at the time of the warranty,
and not to things in future; as that a horse is sound at the
time of buying him, not that he will be sound two years
hence (d). And in a case in the Year Book in the reign of
Edward the Fourth, Choke, J., says, “If I sell a horse and
warrant him to travel thirty leagues a day, and he fail
to do it, I am not liable to an action of deceit, for the
warranty is void, because a person only warrants such a
thing as was at the time of warranty, and not a thing
which zs to come” (e).

There is no doubt, however, that a future erent may
be warranted if there be an express undertaking to that
effect (f°); and it makes no difference whether the war-

(2) Per Gibbs, J., Pickering v. (e) Eden vy. Parkinson, Doug
Dawson, 4 Taunt. 785. 732.4, cod
(a) Dickson v. Zizinia, 10 C. B. (d) 3 Bla. Com. 165.
602. See also Anthony v. Halstead, (ce) Year Book, 9 Edw. 4, p. 6.
37 L. T., N.S. 483. (f) Eden vy. Parkinson, Doug.
(d) See Story on Sales, 191; Sy- 732 a, 7

monds Vv. Carr, 1 Camp. 361.
WARRANTY.

ranty be made at the time of sale or before sale, so long as
the sale is made upon the faith of the warranty (g). For
where a seller informed a buyer that one of two horses he
was about to sell him had a cold, but agreed to deliver both
at the end of a fortnight sound and free from blemishes,
and at the expiration of that time both horses were
delivered, but one had a cough and the other a swelled leg,
which was apparent at the ‘time of sale, the seller brought
an action to recover the price, and a verdict was found for
the buyer. The Court of Common Pleas refused to disturb
it or grant a new trial, as the warranty did not apply to
the time of sale but to a future period (A).

On the sale of goods, if the parties agree to the specific
chattels, there is no implied warranty on the part of the
seller that the goods shall be fit for the particular purpose (1)
for which they are required, but only that they must be
merchantable, that is to say, fit for some purpose (A).

If a person sell a commodity for a particular purpose he
must be understood to warrant it reasonably fit and proper
for such purpose (/). If a man sells a horse generally, he
warrants no more than that itis a horse; the buyer puts
no question, and perhaps gets the animal cheaper. But if
he asks for a horse to carry a lady, or a child, or to drive
in a particular carriage, he who knows the qualities of the
animal and sells, undertakes on every principle of honesty
that it is fit for the purpose indicated; but if it should turn
out that the horse was vicious, or had never been in
harness, the buyer would be entitled to recover, on proving
that the horse was unfit for the purpose for which it was
sold, although it might be fit for several other purposes.
The selling upon demand for a horse with particular
qualities, is an affirmation that he possesses those
qualities (m).

And in Chanter v. Hopkins (n), Mr. Baron Parke said,
“Suppose a party offered to sell me a horse of such a
description as would suit my carriage, he could not fix on
me a liability to pay for it, unless it were a horse fit for

(9) Pasley vy. Freeman, 3 T. R.59;
1B. R. 634.

(h) Liddard v. Kain, 9 Moore,
356; S. C., 2 Bing. 183.

(t) Per Parke, B., Sutton v. Tvm-
ple, 12M. & W. 55. Seealso s. 14
of the Sale of Goods Act, 1893, ante,
pp. 106, 107.

(&) Per Best, C. J., Jones v.

Bright, 5 Bing. 644.

(2) Per Abbott, C. J., Gray v.
Cor, 4 BL & C. 115.

(m) Per Best, C. J., Jones v.
Bright, 5 Bing. 544; 8. C.,3M.&
P. 162. See also Jones v. Just,
L. R., 3 Q. B. 197; 37 L.J., Q. B.
89; 18 L. T., N. S. 208.

(n) 4M. & W. 406.

G2

115

Buying for a
particular
purpose.

Must be
reasonably fit
for the pur-
pose.

A carriage-
horse.
116

Latent undis-

coverable
defects.

Quiet in
harness.

WARRANTY ; SALE AND WARRANTY BY AGENT, ETC.

the purpose it was wanted for; but if I describe it as a
particular bay horse, in that case the contract is performed
by his sending that horse” (0).

Nor is there any exception as to latent undiscoverable
defects. In Randall v. Newson (p), the plaintiff ordered
and bought of the defendant, a coach-builder, a pole for
his carriage. The pole broke in use, and the horses
became frightened and were injured. In an action for
the damage, the jury found that the pole was not reason-
ably fit for the carriage, but that the defendant had been
guilty of no negligence. On motion by the defendant for
judgment, the Court (7) ordered judgment to be entered for
the defendant, on the ground that the answers of the jury
amounted to a finding of a latent defect in the wood of the
pole, which no care or skill could discover, and that the
principle of the decision in Readhead v. Midland Rail. Co. (r)
extended to the sale of an article for a specific purpose.
The plaintiff appealed. And the Court of Appeal held
that the limitation as to latent defects, introduced by
Readhead v. Midland Rail. Co. (s), does not apply to the
sale of a chattel, and that the plaintiff was entitled to
recover the value of the pole, and also for damage to the
horses, if the jury on a second trial should be of opinion
that the injury to the horses was the natural consequence
of the defect in the pole.

Proof that a horse is a good drawer only will not satisfy
a warranty that he is “a good drawer and pulls quietly in
harness.” And the Court of King’s Bench held that it
was quite clear these were convertible terms, because no
horse can be said to be a good drawer if he will not pull
quietly in harness, and therefore proof that he is merely a
good puller will not satisfy the warranty; the word good
must mean “good”? in all particulars (¢). And where a
horse was warranted “sound and quiet in all respects,”
Lord Abinger, C.B., held it to include the being quiet in
harness (v). But where the warranty was as follows, viz.,
“Received from A. the sum of 60/. for a black horse rising

(0) Chanter v. Hopkins, 4 M. & © carrier of passengers is to take due
W. 406. See also Chalmers v. care to carry the passengers safely,

Harding, 17 L. T., N. 8. 571. and is not a warranty that the
(yp) 2 Q. B. D. 102; 46 L. J., carriage in which he travels shall be

Q. B. 259; 36 L. T., N.S. 164. in all respects perfect for its purpose.
(g) Blackburn and Lush, JJ. (t) Coltherd v. Puncheon, 2 D. &
(r) L. R., 4 Q. B. 379. M. 10

(s) L. R.,4Q. B. 379. This case (uv) Smith v. Parsons, 8 C. & P.
decided that the contract made bya = 199.
WARRANTY.

five years, quiet to ride and drive, and warranted sound up
to this date, or subject to the examination of a veterinary
surgeon ;” it was held that there was no warranty that the
horse was quiet to ride and drive (2).

But in setting up a breach of such a warranty, it must
be clearly proved that the horse at the time of sale was
unfit for the purpose for which he was bought; and if he
has gone quietly with persons of ordinary skill, there will
be a strong presumption that he answers his warranty. In
the following case it appeared that a horse warranted “a
thoroughbroke horse for a gig,” kicked and broke the
gig, &c. the first time he was driven by the purchaser.
This was, however, two months after sale, but in the mean-
time other persons had driven him, and he had always
answered his warranty. It was decided that this was no
breach, because as the horse had previously behaved as he
had been warranted, his bad conduct must be attributed
and have been owing to the purchaser’s want of skill in
driving (y). And in the case of Buckingham v. Reeve,
Pollock, C.B., said, “A horse put into a new harness and
an unaccustomed carriage once or twice might kick, and yet
be deserving of a warranty of being quiet in harness ” (z).

In all cases of warranty as to the quality of the thing
sold, as, for instance, where a horse is warranted sound or
the like, the warrantor undertakes that it is true at the
time of making it; and the law annexes a tacit contract
that if it be otherwise than warranted, the vendor shall
make compensation to the buyer (a) ; and the seller will be
liable for any latent defect, according to the old law con-
cerning warranties (b), that is, as Lord Mansfield laid down,
for all faults, known or unknown to the seller (¢), inconsis-
tent with the warranty given.

But where a horse is sold with a warranty, any fraud at
the time of sale will avoid the sale, though it is not on
any point included in the warranty (d). A sale, however,
is not avoided by some immaterial representation in the
warranty proving untrue. For Lord Eldon, in delivering
judgment in the case of an appeal to the House of Lords,
held, where a horse was sold under a warranty of sound-

(x) Anthony v. Halstead, 37L.T., v. Starkin, 1 H. Bla. 17; 2 R. R.
N.S. 433. 700

(y) Geddes v. Pennington, 5 Dow, (b) Parkinson v. Lee, 2 Kast, 321;
64. 6R. R. 429. oh
(z) Buckingham v. Reeve,N. P. Ex. (c) Stuart v. Wilkins, Doug. 19.
Dec. 1, 1857. (d) Steward v. Coesvelt, 1 C. & P.

(a) Archbold’s N. P.40; Fielder 23.

117

Unfitness
must be
clearly
proved.

Warrantor’s
liability.

Sale avoided
by fraud.
118

An agent
cannot dele-
gate his
authority.

Nor exceed it.

Agency deter-
mines by
principal’s
death.
Difference
between a
remunerated
and an un-
remunerated
agent.

Agent acting
without
proper autho-
rity.

His personal
responsibility.

WARRANTY ; SALE AND WARRANTY BY AGENT, ETC.

ness, but with a misrepresentation as to the place from
which he was brought, “ that if the warranty was answered,
a misrepresentation as to the place from which the horse
was prucured would not suffice to set aside the sale” (e).

Sale and Warranty by an Agent.

An agent is always incompetent, without special autho-
rity for that purpose, to appoint another person to act in
his stead, the maxim of the law being, delegatus non potest
delegare (7).

An agent employed for a particular purpose has no right
to exceed his authority. Thus a servant or other person
authorized to sell a horse, must receive payment for him
in money; he cannot exchange him for another (9).

An agency determines ipso facto by the death of the
principal, and is also capable of being revoked by him in
his lifetime, with as little ceremony as 1, was created (h).

There is a difference between the principal’s nghts
against a remunerated and against an unremunerated agent.
The former, having once engaged, may be compelled to
proceed to the task which he has undertaken; the latter
cannot, for his promise to do so being induced by no con-
sideration, the rule, ex nudo pacto non oritur actio, applies.
But if he do commence his task, and afterwards be guilty
of misconduct in performing it, he will, though unremu-
nerated, be lable tor the damage so occasioned; since by
entering upon the business, he has prevented the employ-
ment of some better qualified person (¢).

Wherever a party undertakes to do any act as the
agent of another, if he does not possess any authority
from the principal, and the other does not know it, or if
he exceeds the authority delegated to him, he will be
personally responsible to the person with whom he is dealing,
for or on account of the principal (A).

If the agent contracts in such a form as to make him-
self personally responsible, he cannot afterwards, whether
his principal were or were not known at the time of the
contract, relieve himself from that responsibility (/). And

(e) Geddes v. Pennington, 5 Dow, (t) See Smith’s Merc. Law, 112;
163. Balfe v. West, 22 L. J., C. P. 176.

(f) 2 Steph. Com. 120. (&) Story’s Commentaries, 226;

(g) Thompson vy. Davenport,9 B. Harper v. Williams, 4 Q. B. 232.
& C. 78. (1) Higgins v. Senior, 8 M. & W.

(h) 2 Steph. Com. 118. 845.
SALE AND WARRANTY BY AN AGENT.

where a contract is signed by one who professes to be sign-
ing ‘“‘as agent,” but who has no principal existing at the
time, and the contract would be wholly inoperative unless
binding upon the person who signed it, he is personally
liable on it (7).

Where it clearly and expressly appears, that a person
really acting as agent fairly contracts as such agent in the
name of his principal, and professes to make that principal
liable, the agent cannot be sued upon the contract (n).

But he may be sued so as to make him liable in damages,
for the loss sustained by the person with whom he has
entered into the contract (1).

The rule of law is, that, if an agent is guilty of fraud
in transacting his principal’s business, the principal is re-
sponsible (0); but the agent must be acting within the
scope of his authority aud in the course of his employ-
ment ().

Nor is there any difference in its effect between a mis-
representation made by an agent, which is collateral to the
contract, and one which is embodied in the contract, the
fraud of the agent in either case, if committed in the course
of his employment, rendering the contract voidable as
against the principal, without its bemg shown that he was
privy to it (q).

A master sent his servant with a horse to a fair, at such
a distance that the servant was obliged to put the horse
up for the night; and the servant put him up in a stable
belonging to a tenant of his master. The horse was
glandered, and the tenant brought an action against the
master for damages sustained by him in consequence of the
loss of horses and cattle by infection. It was held by the
Court of Session in Scotland, that placing the horse in the
tenant’s stable was an act done by the servant in the proper
execution of his duty, and for which the master was liable,
upon proof merely of the servant’s knowledge of the disease (1’).

(m) Kelner v. Baxter, L. B., 2 (q) Barwick v. English Joint

C. P.174; 36 L.J., C. P. 94.

(n) Lewis v. Nicholson, 21 L. Jo,
Q. B. 316.

(0) See per Parke, B., Murray
v. Mann, 2 Ex. 539; Cornfoot v.
Fowke, 6 M. & W. 358; Mackay v.
Commercial Bank of New Brunswick,
L.R.,5 P. C. 394: 438 L. J., C. P.
31.

(p) Coleman v. Riches, 16 C. B.
104; Udell y. Atherton, 7H.&N.172.

Stock Bank, L. R., 2 Ex. 259, 265 ;
Swift v. Winterbotham, L. R., 8
Q. B. 244, 254; Mackay v. Commer-
cial Bank of New Brunswick, L. B.,
5 P. ©. 394, 411, 412; 43 L. J,
P. C. 31; and see Swire v. Francis,
3 App. Cas. 106; 47 L. J., P. C.
18; Weir v. Barnett, 3 Ex. D. 32.

(r) Baird v. Graham, 14 Court of
Sess. (Sco.) 614.

119

Where he
cannot be
sued on the
contract.

But is liable
in damages.

Principal
answerable for
his fraud.

Misrepresen-
tation col-
lateral to
contract,

Damage
caused by his
negligence.
120

Undisclosed
principal.

WARRANTY; SALE AND WARRANTY BY AGENT, ETC.

If a person sells goods, supposing at the time of the con-
tract that he is dealing with a principal, but afterwards
discovers that the person with whom he has been dealing
is not the principal, but agent for a third person, though he
may in the meantime have debited the agent with it, he
may afterwards recover the amount from the real principal ;
subject, however, to this qualification, that the state of
the account between the principal and the agent is not
altered to the prejudice of the principal (s). So that a
vendor, who has given credit to an agent, believing him to
be the principal, cannot recover against the undisclosed
principal, if the principal has bond fide paid the agent at
i time when the vendor still gave ercdit to the agent and
knew of no one else as a principal (¢). On the other hand,
if at the time of the sale the seller knows that the person
who is nominally dealing with him is not principal but
agent, and also knows who the principal really is, and
notwithstanding all that knowledge chooses to make the
agent his debtor, then, according to the cases of Addison v.
Gandasequi (w) and Paterson v. Gandasequi (x) the seller
cannot afterwards, on the failure of the agent, turn round
and charge the principal, having once made his election at
the time when he had the power of choosing between the
one and the other” (vy). But the mere knowledge at the
time of the contract that there is a principal, if his name
be not disclosed, will not prevent the seller from resorting
to the principal though he had debited the agent (vy). The
seller, however, must make his election within a reasonable
time. Accordingly, when nine months had elapsed after
the discovery of the principal, and no election had been
made by the seller, it was held that he could not recover (z).
The insertion of the agent’s name alone in the contract,
though the principal is disclosed at the time, and the sub-
sequent demand of payment from the agent, does not
necessarily amount to an election to give credit to the
agent, and to him alone, but the principal may be sued (a).
The question whether credit was given to the agent or to
the principal being for the jury, for whose guidance in

(s) Thompson v. Davenport, 9 B. East, 69; 13 R. R. 368.

& C. 86, per Lord Tenterden, C. J. (vy) Thompson \. Davenport, 9 VB.
(t) Armstrong v. Stokes, 1. R., 7 & C. 86.

Q. B. 598; 41 L. J., Q. B. 253 ; 26 (2) Smethurst v. Mitchell, 28 L. J.

L. T., N. 8. 872. Q. B. 241.
(a) «dddison vy. Gandasequi, 4 (a4) Calder v. Dobell, L. R., 6
Taunt. 574; 13 R. R. 689. C. P. 486; 40 L. J., C. P. 904

(x) Paterson vy. Gandasequi, 15 Ex. Ch.
SALE AND WARRANTY BY AN AGENT.

resolving ‘it, evidence of custom and usage will be ad-
missible (0).

Where a person describes himself in a written instru-
ment as the agent of an unnamed principal, it is com-
petent for the party with whom he contracts to show that,
although described as agent, he is in fact the principal (ce).
But there is a distinction between cases where an agent in
effecting a contract for the purchase of goods does not dis-
close the existence of a principal at all, and cases where he
discloses that he has a principal but does not give his
name; and it has been held that in the latter class of cases
the vendor may have recourse to the principal though he
has bond fide paid the agent for the goods, unless there has
been such conduct on the vendor’s part, e.g. delay in apply-
ing to the principal, as might justify the principal in con-
cluding that the vendor was not looking to his credit but to
that of the agent (d).

Although the rule of law is, that where a contract is
made by an agent, the principal may come in and take
the benefit of it, that doctrine cannot be applied where
the agent contracts as principal (e). Thus, Lord Ellen-
borough said, “If one partner makes a contract in his in-
dividual capacity, and the other partners are willing to take
the benefit of it, they must be content to do so, according
to the mode in which the contract was made” (7). Thus,
in assumpsit on a charter-party executed, not by the plaintiff,
but by a third person, who in the contract described himself
as “owner”? of the ship, it was held, that evidence was not
admissible to show that such person contracted merely as
the plaintiffs agent (9).

The rule of law is, that the agent who makes the
contract may bring an action on the contract in re-
spect of his privity, and the principal in respect of his
interest (7).

If the agent is appointed only for a particular purpose,
and is invested with limited powers, or, in other words, is

(0) Curtis v. Williamson, L. R., Affirmed, 5 Q. B. D. 414—C. A.

10 Q. B. 57, 59; 44 L. J., Q. B. (e) Humble v. Hunter, 12 Q. B.
27; 81 L. T., N.S. 678. 315.
(c) Carr v. Jackson, 7 Ex. 382. (f) Lucas v. De la Cour, 1M. &

See also Paice v. Walker, L. R., 5 8. 249; 14 R. R. 426.
Ex. 173; 39 L. J., Ex. 109; 22 (g) Humble v. Hunter, 12 Q. B.
L. T., N. 8. 547. 310.

(@) Trvine § Co. v. Watson § Sons, (h) Sykes v. Giles, 5 M. & W.
5Q. B.D. 102; 49L. J.,Q.B.239; 650.
41 L. T., N. 8. 51; per Bowen, J.

121

Person
described as
agent may be
proved to be
principal.

Principal
cannot be
proved to be
an agent.

Their respec-
tive rights of
action on a
contract.

Warranty by
servant as
special agent.
122 WARRANTY; SALE AND WARRANTY BY AGENT, ETC.

a special agent; then it is the duty of persons dealing
with such agent to ascertain the extent of his authority ;
and the principal will not be bound by any act of the
agent not warranted expressly by or by fair and necessary
implication from, the terms of the authority delegated
to him(i). Therefore the servant of a private owner
entrusted to sell a horse on one particular occasion, not
at a fair or public mart, is not by law authorized to bind
his master by a warranty; and the buyer who takes such
a warranty, takes it at the risk of being able to prove that
the servant had in fact his master’s authority to give it.
But the existence of this authority may be inferred; ¢..,
it was held in an action for the breach of a warranty on
the sale of a horse by the servant of a private owner, that
a letter from the plaintiff’s attorney to the defendant,
referring to the alleged warranty and averring a breach of
it, and an answer from the detendant merely denying the
breach of it, afforded evidence whence the jury were
justified in finding that the servant had authority in fact to
warrant (k).
Warranty by In Brady v. Todd (J), Erle, C.J., in delivering the judgment
speed sen of the Court, said, ‘‘ When the facts raise the question, it
; will be time to decide the liability created by such a
servant as a foreman alleged to be a general agent, or such
a special agent as a person intrusted with the sale of a
horse in a fair or other public mart, where stranger meets
stranger, and the usual course of business is for the person
in possession of the horse, and appearing to be the owner,
to have all the powers of an owner in respect of the sale;
the authority may, under such circumstances as are last
referred to, be implied, though the circumstances of the
present case do not create the same inference.” Previously
to this case it had been held that the servant of a private
owner employed to sell a horse at a fair, and receive the price,
had an implied authority to warrant the horse to be sound,
Lord Ellenborough saying, “If the servant was authorized
to sell the horse and to receive the stipulated price, I think
he was incidentally authorized to give a warranty of sound-
ness. It is now most usual on the sale of horses to require
a warranty ; and the agent who is employed to sell, when

(t) Brady v. Todd, 9 C. B., N.S. (A) Miller vy. Lawton, 15 ©. B.,
592; 30 L.J., C. P. 223; 4.1, N. 8. 834. It should, however, be
N. 8. 212 ; 9 W. R. 483. See noted that in this case the sale took
Alexander v. Gibson, 2 Camp. 555; place ata fair.

11 R. R. 797. () 80 L.J.,C. P. at p. 225.
SALE AND WARRANTY BY AN AGENT.

he warrants the horse, may fairly be presumed to be acting
within the scope of his authority. This is the common and
usual manner in which the business is done, and the agent
must be taken to be vested with powers to transact the
business with which he is entrusted in the common and
usual manner (7).”” In that case no special reference was
made to the fact that the horse was sold at a fair, and if
the foregoing decision was intended to refer to sales by
special agents generally, it must be taken to be overruled
by Brady v. Todd. In a comparatively recent case, how-
ever, the facts contemplated by Erle, O.J.,in Brady v. Todd
as raising an implication of authority to warrant on the
part of a special agent did arise, and it was held that a
servant entrusted by his master with the sale of a horse at
a fair might have an implied authority to warrant (1).

But wherever a general authority is given by a principal
to an agent, this implies and includes a right to do all
subordinate acts incident to and necessary for the execution
of that authority ; then, if notice is not given to the person
with whom the agent deals that the principal has limited
his authority, the principal is bound (0). In accordance
then with this principle of law, a servant employed by a
horsedealer as his general agent to carry ou his business,
has an implied authority to warrant the horses sold by him
for his principal as sound without any special authority for
that purpose.

The case of Howard v. Sheward (p) very clearly illustrates
the rule that the agent or servant of a horsedealer has an
implied authority to bind his principal or master by a
warranty. In that case it appeared that the defendant
was a horsedealer, and that in March, 1866, the plaintiff,
being at a riding-school, asked the proprietor ‘‘if he knew
of a horse that would be likely to suit him,” and that
David Sheward, the brother of the defendant, who happened
to be present, and who was a horsedealer, and occasionally
acted in the sale of horses for the defendant, said he thought
the latter had one. After some conversation the horse in
question was brought to the riding-school, and there ridden
by the plaintiff and approved of by him; and David
Sheward, in answer to questions as to the character and
soundness of the animal, said, ‘‘1’ll guarantee the horse is

(m) Alexander v. Gibson, 2 Camp. (o) Per M. of R., Collen v. Gardner,
565; 11 R. R, 797. 21 Beav. 543.
(x) Brooks v. Hassall, 49 Ly Ts, (p) L. B., 2 C, P. 148; 36 L. J.,

N. 8. 569. C. P. 42.

123

Warranty by
a servant as
general agent.
124

WARRANTY; SALE AND WARRANTY BY AGENT, ETC.

sound.” Ultimately the horse—which had, at the
plaintiff's request, been previously examined by a veteri-
nary surgeon, who gave a certificate that it was sound—
was purchased by the plaintiff for 315/., which sum he
paid to the defendant. The horse, proving to be unsound,
was re-sold by the plaintiff, and this action was brought to
recover the difference in price. On the part of the defen-
dant it was contended that the servant of a horsedealer
(assuming David Sheward to have been the defendant’s
servant for this purpose) has no implied authority to
warrant on his master’s behalf; and evidence was oftered
to show that it was not the custom with horsedealers to
warrant where the horse had been examined by a com-
petent veterinary surgeon and pronounced sound. Erle,
C.J., declined to receive the evidence, and said that he
should rule that David Sheward had authority to warrant ;
and the jury, finding that he had done so, and that the
horse was unsound, returned a verdict for the plaintiff,
damages 127/. 10s., and leave was reserved to the defen-
dant to move to enter a nonsuit or for a new trial. The
rule was refused. And Willes, J., in the course of his
judgment, said, “ David Sheward did not negative the fact
that this was an ordinary transaction as between his brother
and himself. It must be assumed, therefore, that he
negotiated the sale as his brother’s servant or agent. It
was not an isolated instance, though if it had been I do not
conceive that it would have made any difference; but it
appeared that David Sheward had before assisted the
defendant in the sale of horses. Is it, then, part of the
business of a horsedealer to warrant horses which he sells ?
No doubt it is where a sufficient price is given. Upon the
whole I think there was clear evidence of authority to
warrant. It arose out of the general character of the trans-
action, and any person dealing with the agent of a horse-
dealer has a right to assume it.”

It was also decided in Howard v. Sheward (q) that evi-
dence of the alleged usage amongst horsedealers not to
warrant where the horse has been examined by a veterinary
surgeon, was not admissible to rebut the inference of
authority to warrant.

But a horsedealer will not be bound by a warranty given
by his servant on an incidental matter, especially where the
contract is not an ordinary transaction of sale and purchase.

(q) L. R., 2 C. P. 148.
SALE AND WARRANTY BY AN AGENT.

This statement appears to be justified by the judgment of
the Queen’s Bench Division in Baldry v. Bates (1). In
that case the defendant, the keeper of a riding-school,
agreed through his servant to send a horse to the plaintiff
on trial. The servant warranted that the horse could be
safely put into a stable where other horses of the plaintiff’s
were. At the trial the jury found that at the time the
horse was suffering from the mange, and that the defen-
dant’s servant was aware of it. The judge, on further con-
sideration, found, as a fact, that the defendant was a horse-
dealer, and, therefore, liable on the warranty given by his
servant. On appeal to the Divisional Court it was held
(reversing the judgment of Huddleston, B.) that the judge
had no power to find any such fact, and that as it had not
been found by the jury, the defendant would not be bound
by any warranty given by his servant as to the soundness
of any horse offered by him for sale; and, further, that as
the warranty given had not been given on the soundness of
the horse, but on an incidental matter, the servant, even if
the defendant had been a horsedealer, would not have been
clothed with authority to give such a warranty.

What an agent says as a warranty or representation at
the time of sale respecting the thing sold, is evidence
against the principal; but not what he has said at another
time, whether to the purchaser, or to a stranger, unless it is
a statement accompanying an act done in the course of his
agency (s). And Lord Ellenborough said, ‘If the servant
is sent with a horse by his master, and which horse is
offered for sale, and gives the direction respecting his sale,
I think he thereby becomes the accredited agent of his
master, and what he has said at the time of sale, as part of
the transaction of selling, respecting the horse, is evidence ;
but an acknowledgment to that effect, made at another
time is not so: it must be confined to the time of actual
sale, when he was acting for his master. I think, the
master having entrusted the servant to sell, he is entrusted
to do all he can to effectuate the sale; and if he does
exceed his authority in so doing he binds his master” (?).

If the servant of a horsedealer, with express directions
not to warrant do warrant, the master is bound; because
the servant having a general authority to sell, is in a con-
dition to warrant, and the master has not notified to the

(r) 1 Times L. R. 558. 5 Esp. 133; 1 Tayl. Evid. 4th ed.
(s) Per Erskine, J., Allen v.Den- 526.
stone, 8 C. & P. 760; Petov. Hague, (¢) Helyer v. Hawke, 5 Esp. 72.

Warranty by
a servant after
sale,

Warranty by
a servant for-
bid to give
one.
126

Warranty by
a stranger
forbid to give
one.

Master un-
willing to
stand by his
servant's
warranty.

Rule as to a
servant bind-

ing his master.

WARRANTY ; SALE AND WARRANTY BY AGENT, ETC.

world that the general authority is circumscribed (wv). And
if a person keeping /ivery stables, and having a horse to sell,
directs his servant not to warrant him, and the servant
does nevertheless warrant him, the master is liable on the
warranty, because the servant was acting within the
general scope of his authority, and the public cannot be
supposed to be cognizant of any private conversation
between the master and servant (x). And where the owner
of a horse sold by a livery-stable keeper with a warranty
went to the buyer and requested to have the horse back,
stating that he did not authorize the warranty of soundness,
and the buyer refused to give it up, saying, “I know
nothing of you, I bought the horse of Mr. Osborne ;” such
a retusal was held to be no waiver of the warranty (y).

But if the owner of a horse were to send a stranger to
a fair, with express directions not to warrant the horse,
and the latter acted contrary to the orders, the purchaser
could only have recourse to the person who actually sold
the horse, and the owner would not be liable on the war-
ranty, because the servant was not acting within the scope
of his employment (s).

But if the master, under such circumstances, is unwilling
to stand to the warranty given by his servant, he is bound
to take back the horse and return the money if it has
been paid (s). And on this pomt Lord Abinger, C. B.,
said, “ Put the ordinary case of a servant employed to sell
a horse, but expressly forbid to warrant him sound. Is it
contended that the buyer, induced by the warranty to give
ten times the price which he would have given for an un-
sound horse, when he discovers the horse to be unsound,
is not entitled to rescind the contract? This would be to
say, that though the principal is not bound by the false
representation of an agent, yet he is entitled to take advan-
tage of that false representation, for the purpose of obtaining
a contract beneficial to himself, which he could not have
obtained without it” (a).

The general rule, then, in selling a horse by a servant or
agent, appears to be the following:—That the master or

() Per Bayley, J., Pickering v. (y) Best v. Osborne, 2. & P. 74.
Busk, 15 East, 45; 18 R. R. 364; (z) Per Ashurst, J., Einy v. Har-
Brady v. Todd, 9 C. B., N. 8. 604. vison, 3 T. R. 761; and Scotland

(x) Per Ashurst, J., Fenn v. Har- (Bank) v. Watson, 1 Dow, 45; 14
rison, 3 T. R. 760. See also R. R11. .
Howard v. Sheward, LL. R., 2 C. P. (@) Cornfoot v. Fowhe, 6M. & W.
148. 3881.
SALE AND WARRANTY BY AN AGENT.

owner is bound by a warranty given by his servant or agent
at the time of sale, without his consent, and even against
his express directions, if his servant is his general agent to
carry on his business. But the master will not be bound by
the warranty of the servant, unless the authority to give
that warranty can be proved either to have been expressly
or impliedly, ze. by implication of law, granted by the
master.

Although a warranty given by a person entrusted to sell
prima facie binds the principal, the warranty of a person
entrusted merely to deliver the thing sold is not prima facie
binding on the principal, but an express authority must be
shown: and therefore, where a horse had been sold by A.
to B., and A.’s servant, on delivering the horse to B., made
certain statements, and signed a receipt for the price of the
horse, containing a warranty, it was held, in an action on
the warranty that A. was not bound by the statement or
receipt of the servant, as no express authority to give the
warranty was shown (5). And where, on the purchase of
a horse, the vendor had given a warranty of soundness
generally, and the servant who was sent with the receipt to
the agent of the other party inserted at his request, but
without a special or general authority from his master,
“Warranted sound to the regiment,” and the horse was
sound when delivered in London, but was im a violent
Jever, of which he soon afterwards died, when he reached
Tewkesbury, where the regiment was quartered; it was
held, that the master was not bound by this alteration of
the warranty, notwithstanding the money afterwards came
to his hands (c).

If an agent is employed to receive a horse, pay for it,
and take a warranty, he has no authority to receive it
without a warranty (d).

An action in substance for the price of a horse may be
brought by the seller against a pretended agent, as in the
following case. It was stated in the declaration, that in
consideration that the plaintiff would send a pony to the
defendant he would sell and deliver it to A.; the defendant
undertook that he was authorized by A. to purchase it on
his behalf; that the plaintiff sent the pony to the defen-
dant, and was willing to sell it to A., but that the defen-
dant had no authority from A. to purchase it (e).

(b) Woodin v. Burford, 2 Cr. & . (d) Jordan v. Norton, 14M. & W.
M. 391; S. ¢. 4 Tyrw. 264. 155.
(c) Strode v. Dyson, 1 Smith, 400. (e) Price v. Morgan, 2M. & W. 56.

127

Warranty by
a person en-
trusted to
deliver.

Agent em-
ployed to take
a warranty.

Action against
a pretended
agent.
128

Not covered
by a warranty.

In what they
consist.

How far the
loss of an eye
is patent.

WARRANTY; SALE AND WARRANTY BY AGENT, ETC.

Patent Defects.

A general warranty does not cover patent defects, being
such as are obvious to the buyer. As if a horse warranted
perfect be minus an eye or a tail (/), or a house warranted
to be in perfect repair, be without roof or windows (9), or,
“as if one sells purple to another, and saith to him that
this is scarlet, this warrant is to no purpose, for that the
other may perceire this, and this gives no cause of action to
him. To warrant a thing that may be perceived by sight
is not good” (h).

From these examples the proper principle regarding
patent defects may clearly be drawn; they must be such
defects as a man, unless he is perfectly incompetent to con-
duct business, cannot help observing. For where a person
sees, or has the opportunity of seeing, goods before purchase,
caveat emptor is the rule of law; and a man who does
not perceive the loss of an eye or tail in a horse, or the
absence of the roof or windows from a house, or does
not distinguish between purple and scarlet by the light of
day, cannot expect the law to give him any assistance, as
every man making a bargain is expected to have ordinary
perception. Whether a defect is patent or not, or the pur-
chaser has used ordinary care, is a question for the con-
sideration of the jury.

Although the loss of an eye is a breach of a warranty
of soundness (?), it has been laid down, that ‘where one
buys a horse upon warranting him to have both his eyes,
and he have but one eye, he is remediless ; for it is a thing
which lies in his own conusance, and such warranty or
affirmation is not material nor to be regarded” (4). But
this seems to assume that the eye has entirely disappeared,
or has been so obviously damaged, that it mast lie in the
conusance of the buyer; and nothing is said with regard to
a loss of sight, where there is little apparent injury to the
eyes; for a horse may appear to the majority of people
perfect in his eves, and yet have lost the sight of one or
both. Such is the case in gutta serena, vulgarly called
“« glass-eye”’ (1), which is a palsy of the optic nerve or retina,

(f) 2 Bla. Com. 165; and per (i) Butterfield v. Borroughs, 1 Salk,
Hank, J., Year Book, 18 Hen. 4, 211.
p-

q: (%) Year Book, 13 Hen. 4, p. 1;
(g) Dyer v. Hargrave, 10 Vesey, Bayley vy. Merrell, Cro. Eliz. 389.
507; 8 R. R. 36. (?) Gutta serena, ante, p. 82.

(h) Bailey v. Merrell, 3 Bulst. 95.
PATENT DEFECTS.

and being difficult of detection can certainly never be con-
sidered a patent defect.

This pomt seems to have been taken in an old case,
where it is said, “ Low seo vend chivall que ad null Oculus
la null action gist ; auterment lou il ad un counterfeit faux et
Bricur Eys.” ‘“ Where I sell a horse that has no eye,
there no action lies; otherwise where he has a counterfeit,
false and bright eye” (m). Thus it appears that a distine-
tion is here made between a horse having no eye at all, and
having a counterfeit, false or bright one. And probably by
bright eye is meant glass-eye or gutta serena; and the words
“counterfeit”? and “false” may be an attempt of the
reporter to explain an expression which he did not under-
stand. Because, putting a false eye into a horse is very
far in advance of the sharpest practices of the present day,
or of any former period.

Thus, too, in a case in which a convexity in the forma-
tion of the cornea of the eye made a horse short-sighted,
and thence induced in him a habit of shying, Lord Campbell
said that this was not such a defect as the purchaser was
bound to take notice of. “There being an express
warranty, he was not bound to examine so closely as to
ascertain whether the cornea was so formed as to produce
short-sight ; the most prudent man could not be expected to
do that ” (x).

But if a person purchase a horse knowing it to be blind,
he cannot sue the seller on a general warranty of soundness,
although he had warranted the animal to be sound in every
respect (0).

Where the buyer observes some defects, and they are
discussed by both parties before sale, and a warranty is
given ; if an action is afterwards brought for a breach of
the warranty, it is a question for the jury to say whether
the horse is sound in the terms of the warranty, saving
those manifest and visible defects which were known to the
parties. And thenif he is sound with these exceptions,
they must consider whether the effect which might be pro-
duced by any of those defects was contemplated or not,
that is, whether under the circumstances of the case the
seller undertook that they should not impede the natural
usefulness of the horse. This appears in the following

(m) Southerne v. Howe, 2 Rol. Q. B. 9. ;
(0) Margetson v. Wright, 5 M. &

ep. 5.
(n) Holyday v. Morgan, 28L.J., P. 610.
oO. K

R

129

Convexity of
eye.

Where the
buyer knows
the defect.

Where defects
are discussed.
130

WARRANTY ; SALE AND WARRANTY BY AGENT, ETC.

case :—where an action was brought for a breach of war-
ranty on the sale of a racehorse, the terms of which were,
“And the said Mr. Wright (the defendant) doth hereby
warrant the said horse to be sound wind and limb at this
time,” two subjects, namely, crib-biting (p) and a splint (¢)
on the off-fore leg, were discussed by the parties at the time
of the bargain, and after that discussion, the warranty in
question was given. The horse soon became lame and
afterwards broke down. On the case being tried, the jury
returned a verdict for the plaintiff.

Chief Justice Tindal, in making a rule for a new trial
absolute, said, “It is laid down in the older books, that
where defects are apparent at the time of a bargain, they
are not included in a warranty, however general the terms
may be, because they can form no subject of deceit or fraud ;
and formerly the mode of proceeding for a breach of war-
ranty was by an action of deceit grounded on an express
fraud, and the averment in the declaration was warrantizando
vendidit.”

“ Although, however, certain exceptions may be grafted
on a contract of warranty, yet in this case no fraud or deceit
can be attributed to the defendant, as the horse’s defect was
manifest, the splint not only being apparent, but made the
subject of discussion before the bargain was made. If a
person purchase a horse, knowing it to be blind, he could
not sue the seller on a general warranty of soundness,
although he had warranted the animal to be sound in every
respect. The splint was known to both the plaintiff and
the defendant, and the learned Judge left it to the jury to
say whether the horse was fit for ordimary purposes. His
direction would have been less subject to misapprehension,
if he had left it to them in the terms of the warranty to say
whether the horse was, at the time of the bargain, sound
wind and limb, saving those manifest and visible defects
which were known to the parties; the jury might then
have considered whether the effect which might be pro-
duced by the splint was contemplated or not” (7).

When the case was again tried the jury found for the
plaintiff, as they thought the horse unsound at the time
of the contract from the splint, which was in a very bad
situation, pressing upon one of the sinews, and which

(p) Crib-biting, ante, p. 75. (rv) Margetson v. Wright, 5 M. &
(q) Splint, ante, p- 94. P. 610. eo
 

PATENT DEFECTS.

would naturally produce lameness when the horse was put
to work (s).

In a more recent case, in which the defendant sold a
horse to the plaintiff with a general written warranty of
soundness, but at the same time pointed out a splint which
it had, and the horse subsequently became lame from the
splint, it was held that the lameness was a breach of the
warranty. Pollock, O.B., in his judgment, said, “The rule
is asked for on the ground that when you point out a splint
to the purchaser, you except it out of the warranty ; it may
be so, if the horse be blind, or have any other patent defect,
which is to be seen and is clear; but here it may well be
that the defendant warranted that the splint should not
grow into a lameness. A person buying a horse is often no
judge of horses, and may say, ‘I don’t want to see the
defects or blemishes of the horse, as I really know nothing
about them ; I want and must have a written warranty. I
do not see why this warranty should not be taken thus: ‘I
show you this splint, and I warrant the horse perfectly
sound notwithstanding.’ It may have been excepted in the
warranty, but there is no exception at all. I think the
defendant is liable on his warranty. This entirely agrees
with the decision in Margetson v. Wright (s). Some splints
cause lameness and others do not. A splint, therefore, is
not one of those patent defects, against which a warranty is
inoperative.” Bramwell, B., in the same case, in giving
judgment for the plaintiff based his decision upon the
broader ground, that where the warranty is a written one,
it cannot be modified by parol evidence to the effect that
the defect existed at the time, and was therefore excluded
from the warranty (¢).

The conclusion then to be drawn from the cases on
this subject appears to be:—that the patent defects,
which the warranty does not cover, and to which the doc-
trine of caveat emptor applies, must be so manifest and
palpable, as to be necessarily within the knowledge and
apprehension of the purchaser, and also such defects as at
the time of sale either are, or will inevitably produce, an
unsoundness. And as Mr. Baron Bramwell’s opinion, that
parol evidence is inadmissible to modify the written war-
ranty to the extent of proving the existence of patent defects

(s) Margetson v. Wright, 1 M. & (t) Smith v. O’Brien, 11 L. T.,
Sco. 627. N.S. 346.

K 2

131

Conclusion to
be drawn from
the cases.
132

Suspected
defects.

Purchase
without
inspection.

Inspection
prevented by
traud.

WARRANTY; SALE AND WARRANTY BY AGENT, ETC.

at the time of the warranty being given (u), appears to be
well founded, the written warranty must be taken to con-
tain all the terms of the contract, and evidence as to patent
defects will only be receivable in cases where the warranty
is not in writing. ‘

Where the buyer suspects some defect and wishes te
examine and try the horse for it, but the seller objects and
says, “I will warrant him,” he is liable for the defect.
For where an action on the case was brought when a horse
warranted sound had turned out “ shoudder-tied,’ it was
contended that an action would not lic, because the defect
was visible. But Sir Henry Montague, C.J., said, ‘‘ This
was the ground, that the plaintiff wished to have ndden
the horse, but the defendant said ‘I will warrant him
sound.” And Noy, J., said, “That is the distinction,
where the defect is visible”’ (x).

Where there is no opportunity of inspecting the com-
modity, the maxim caveat emptor does not apply ; and the
intention of both parties must be taken to be, that it
shall be saleable in the market under the denomination
mentioned between them (vy). This has been laid down
with regard to horses some centuries ago, for we find in
the Year Book it is said by Thirning, J., “If I buy a horse
of you in a different place from where the horse is,
through the confidence I have in you, and you warrant
him sound in all his parts, when he is blind, I shall
have a good action of deceit against you” (zs). Therefore,
at the present day, if A. in London were to buy a car-
riage horse of B. in Yorkshire, warranted sound, and the
horse on its arrival were found to have some patent
defect, such as the want of an ear or tail, A. would not
be bound to take it, because being maimed, it could not
be said to answer the description of the horse he ordered ;
and by taking a warranty he has done everything in his
power to protect himself (a).

In America, a general warranty was held to extend to
patent defects, where access to the horse was prevented
by the seller by means of a trick, the buyer being un-

(u) Smith v. O’Brien, 11 L. T., 8 Year Book, 13 Hen. 4, p. 1.
N.S. 346. @) See Gardiner y. Gray, 4 Camp.
(x) Dorrington v. Edwards,2 Rol. 145; 16 R. R. 764. See also Jones
88. v. Just, L. R., 3Q. B. 197; 37 L. J.,
(y) Gardiner v. Gray, 4 Camp. Q. B. 89; 18L. T., N.S. 208.
145; 16 R. R, 764.
PATENT DEFECTS, 133

aware of the defect (6). As to the correctness of this
decision there can be no doubt, as it is clear that the

maxim caveat emptor would be inapplicable to such a
case (c).

(b) Kenner v. Harding, 28 Amer. (c) See Margetson v. Wright, 5
Rep. 615. M. & P. 610.
Representa=
tion intended

as a warranty.

Recommenda-
tion of the
seller.

Affirmation as
to value.

Distinction
between a
warranty and
a representa-
tion.

CHAPTER VI.
WARRANTY DISTINGUISHED FROM REPRESENTATION.

Ir is sometimes not very easy to determine whether an
action for breach of warranty should be brought against
the vendor of a chattel, or whether the proper remedy be
by an action for misrepresentation, the rule of law being
that every affirmation at the time of sale of personal
chattels is a warranty, provided it appears to have been so
intended (a).

In many cases, however, even the positive recommenda-
tion of the seller is not, from the nature of the case, to be
regarded as a warranty, but merely as an expression of
his belief or opinion on a matter of which he can have no
certain knowledge, and on which the purchaser is generally
capable of forming an opinion (b); the rule being, com-
mendatio simplex non obligat.

Therefore a simple affirmation or assertion by the ven-
dor, as to the value or quality of his goods, does not
amount to a warranty, unless it be made and received as
such, although the purchaser may have bought the goods
on the faith of such recommendation (8).

The distinction between a warranty and representation is
pointed out in a note to the case of Goram v. Sweeting (c),
and was also laid down by Chief Justice Best, in the fol-
lowing case. An action of asswmpsit was brought on the
warranty of a horse; no direct evidence was given of what
took place when the contract was made, but letters passed
between the plaintiff and defendant, in which the plaintiff
writes, “You well remember that you represented the
horse to me as five years old;” to which the defendant
answers, “The horse is as I represented it.” Chief
Justice Best said, “The question is, whether I and the

(a) Smith’s Leading Cases, 9th ed. 4; Rol. Abr. 101.
188; Power v. Barham, 4 A. & EK. (ec) Goram v. Sweeting, 2 Wms.
473; Shephard v. Kain, 5 B.& Ald. Saund. 200 c.;_and see per Martin,
240; Freeman v. Baker, 2N.& M.  B., Benham v. United Guarantee Co.,
446. 7 Ex. 753.

(6) Chandelor v. Lopus, Cro. Jac.
WARRANTY DISTINGUISHED FROM REPRESENTATION.

jury can collect that a warranty took place; I quite agree
that there is a difference between a warranty and a repre-
sentation, because a representation must be known to be
wrong. The plaintiff in his letter says, ‘You remember
you represented the horse to me as five years old.’ To
which the defendant’s answer is, ‘The horse is as I repre-
sented it.’ Now if the jury find that this occurred at the
time of sale, and without any qualification, then I am of
opinion that it is a warranty. If it occurred before, or if
it was qualified, then it must be taken to bea representation
and not a warranty.’ Huis Lordship then left the question
to the jury, telling them “that if they found that the
defendant at the sale gave an undertaking to the effect
mentioned in the letters, then such undertaking was a
warranty.’ The jury returned a verdict for the
plaintiff (e).

A representation to amount to a warranty must be shown
not only to have been intended to form part of the con-
tract, but also to have been made pending the con-
tract. And therefore where A. sent his horse to Tatter-
sall’s for sale, by auction without warranty, and on the day
before the sale found B. in the stable examining the horse’s
legs, and A. said to him, ‘‘ You have nothing to look for;
I assure you he is perfectly sound in every respect ;”
whereupon B. replied, “If you say so, I am perfectly
satisfied.” Upon the faith of this representation (admitted
to have been made in good faith) B. became the purchaser.
Tt was held that this was no warranty, as this representa-
tion was not intended to form part of the contract of sale,
nor was it made pending the contract. For the sale bemg
by auction, the negotiations between the parties had not
commenced, inasmuch as the contract began only when the
horse was put up for sale, and ended when he was knocked
down to the highest bidder (/).

Where the words “In foal to Warlock” were appended
to the name of a mare in a printed catalogue of horses
to be sold by auction; and other mares in the same cata-
logue were described as having been ‘“‘served” by or
“stinted to” certain horses; it was held that, looking
to the expressions used with respect to other mares
and to the nature of the fact represented, the words must

(e) Salmon v. Ward, 2 C. & P. (f) Hopkins v. Tanqueray, 23 L.
211; and see Cave v. Coleman, 3 M. J., C. P. 162. See also Chalmers v.
& Ry. 3. Harding, 17 L. T., N. 8. 571.

135

Where repre-
sentation
amounts to a
warranty.
136

Question to
be put to the

jury.

Rule as to
warranty and
representa -
tion.

Mere expres-
sion of
opinion.

WARRANTY DISTINGUISHED FROM REPRESENTATION.

be taken as intended by the parties to amount to a
warranty (9). : .

The proper question for the jury in a case in which
the effect of a statement made during the sale is the point
at issue, is whether it is or is not intended to form part of
the contract. In the case of Foster v. Smith (h), an agent
sold a mare to C., and having no express authority from
the owner to warrant her, refused to do so, but at the
time of the sale told C. that “if the mare was not all right
she was not his.” ©. thereupon paid the price, which was
received by the owner. The mare proving unsound, C.
returned her to the agent, and sued the owner in the
County Court for a return of the money. Jervis, C.J., in
delivering the judgment of the Court of Common Pleas,
said that the proper question to leave to the jury in this
case was whether it was part of the contract that the mare
should be returned, if she proved unsound; if so, and she
were returned, there would be a failure of consideration,
and the plaintiff would be entitled to recover back the
price.

The judges in the Exchequer Chamber have laid down a
rule with regard to warranty and representation which
appeared to them to be supported so clearly by the early as
well as the most recent decisions, that they thought it un-
necessary to bring them forward in review. The judgment
was pronounced by Chief Justice Tindal, who said, “The
rule, which is to be derived from all the cases, appears to
us to be, that where upon the sale of goods the purchaser
is satisfied without requiring a warranty (which is a matter
for his own consideration), he cannot recover upon a mere
representation of the quality by the seller, unless he can show
that the representation was bottomed in fraud” (2).

In Jendwine v. Slade (k), where two pictures were sold,
described in a catalogue as one by Claude Loraine (/), and
the other by Teniers (#), and they turned out to be copies,
Lord Kenyon seemed to think that the representation of a
fact of which the seller could have no certain knowledge,
must be taken as a mere expression of opinion, as these were
very old painters, and there was no way of tracing the
pictures.

(g) Gee v. Lucas, 16 L. T., N.S. (hk) Jendwine v. Slade, 1 Esp.
357. 572; 5 R. R. 7d4.

(hk) Foster v. Smith, 18 C. B. 156. (2) Claude Loraine died in 1682.

(t) Ormrod vy. Huth, 14 M. & W. (m) Teniers died in 169+.

664.
WARRANTY DISTINGUISHED FROM REPRESENTATION.

And where a man not knowing the age of a horse, but
having a written pedigree, which he received with him, said
at the time of sale that he sold him according to that pedi-
gree, knowing nothing further than he learnt therefrom, the
mark being out of his mouth when he bought him, it was
held to be no warranty, and that he was not lable to an
action on account of the pedigree turning out false (v).

But a written instrument may consist partly of a war-
ranty and partly of a representation. Thus, where the
following receipt was given on the purchase of a horse,
“ Received of Robert Dickenson 100/. for a bay gelding got
by Cheshire Cheese, and warranted sound,” and an action
was brought on an alleged breach of warranty, on the
ground that he was not bred in the manner above described,
Chief Justice Dallas held that the warranty was confined
to the soundness, and the statement that he was got by
Cheshire Cheese was a mere representation (0). Also, where
a receipt on the sale of a colt contained the following words
after the date, name and sum, “for a grey four years old
colt warranted sound in every respect,” and the colt turned
out to be only three years old, Chief Justice Tindal non-
suited the plaintiff, who had brought an action on that
ground, and said, “I am of opinion that the first part of the
receipt contains a representation and the latter part a war-
ranty. In the case of a representation, to render liable the
party making it, the facts stated must be untrue to his
knowledge ; butin the case of a warranty he is liable whether
they are within his knowledge or not.” The Court of
Common Pleas discharged a rule nisi for setting aside the
nonsuit, and Mr. Justice Alderson said, “ A warranty must
be complied with whether it is material or not, but it is
otherwise as to representation. If the word ‘warranted’
had been the dast word, I should have held that it extended
to the whole” (p). However, in a previous case, where
the plaintiff brought an action to recover the price of a
horse sold under the following warranty, “a black gelding,
about five years old, has been constantly driven in the
plough—warranted,” it was held that the terms of such
warranty applied to the soundness of the horse rather than
to the nature of his employment (¢).

(n) Dunlop v. Waugh, 1 Peake, (p) Budd vy. Fairmanner, 5 C.&
167. 7

(0) Dickenson v. Gapp, H. T. (9) “Richardson y. Brown, 8 Moore,
1821, cited in Budd v. Fairmanner,1 3383; S. C. 1 Bing. 344.
M. & Sc. 78.

137

Selling
according to
pedigree.

Partly a war-
ranty and
partly a repre-
sentation.
138

The jury
must decide
between a
warranty and
a representa-
tion.

Percival v.
Oldacre.

WARRANTY DISTINGUISHED FROM REPRESENTATION,

So, also, in the case of Anthony v. Halstead (r), the
following document, viz.: “Received from A. the sum of
60/. for a black horse, rising five years, quiet to ride and
drive, and warranted sound up to this date, or subject to
the examination of a veterinary surgeon,” was held not to
be a warranty that the horse was quiet to ride and drive.

It is a question for the jury whether the description of
an article in a catalogue, a receipt, or a bill of parcels,
amounts to a warranty, or is merely a matter of description,
or intimation of an opinion, and it should be submitted to
the jury with all the attendant circumstances. Thus, where
a picture has been sold as a Rembrandt, an action was
brought on a bill of exchange of which the picture was the
consideration, and it appeared doubtful on the evidence
whether there had been a warranty or only a representation ;
Chief Justice Tindal, in summing up, said, “ The question
is, whether you think that a warranty was in fact given,
and that it was broken? For, if you do, you must find
your verdict for such sum as you think to be the real value
of the picture; but if there was no express warranty, but
only a representation, then, as there is no evidence that the
plaintiff did not dedieve that the picture was not a Rem-
brandt, he will be entitled to recover the full amount of the
bill,” which the jury found (s). But in a case where
pictures were sold with a bill of parcels, containing the words
“ four pictures, views in Venice, Canaletti,” the jury thought
this a warranty, and refusing a rule for a new trial, Lord.
Denman, C.J., said, “It is for the jury to say, under all
the circumstances, what was the effect of the words, and
whether they implied a warranty of genuineness or conveyed
only a description or an expression of opinion. IT think that
thew finding was right; Canaletti (¢) is not a very old
painter” (w).

So, too, in the case of Percival v. Oldacre (x) the plaintiff
saw a horse at Bank’s, in Gray’s Inn Lane, belonging to
the defendant, which was for sale. He afterwards saw the
defendant, told him that he had seen the horse, and asked
him “ What about the horse ?”” The defendant said that he
was a good harness horse, and that he had been bought to

(r) 87 L. T., N. 8. 483. Slade, died, the former in 1682, the
(s) De Schwanberg v. Buchanan, 5 — latter in 1694.

Cc. & P. 3438, . . (u) Power v. Barham, 4 A. & E.
(t) Canaletti died in 1768, and 478.

Claude Loraine and Teniers (the (x) Percival v. Oldacre, 18 C. B.,
younger), mentioned in Jendwine v. N.S. 338.
WARRANTY DISTINGUISHED FROM REPRESENTATION.

match for Baron Rothschild for 85/., and that he was only
selling him because he would not match. The plaintiff on
this went to Bank’s, and bought the horse eventually for
65/. The horse, on being put in harness, turned out to be
a kicker, and kicked the plaintiff’s trap to pieces. He was
afterwards sent to a stable, and sold for 407., and the action
was brought for the difference. The jury found a verdict
for the plaintiff for the 25/. claimed. In moving for a new
trial it was contended that there was no evidence of war-
ranty, but Erle, C.J., said that Mr. Justice Byles, who
tried the cause, was of opinion that there was evidence to
go to the jury of a warranty, and that the verdict therefore
ought not to be disturbed.

In the case of Behn v. Burness (y) Mr. Justice Williams,
in delivering the judgment of the Exchequer Chamber, gave
the following lucid exposition of the legal characteristics
of representation as distinguished from warranty. He said,
“Properly speaking, a representation is a statement or
assertion made by one party to the other, before or at the
time of the contract, of some matter or circumstance re-
lating to it. Although it is some thing contained in a
written instrument, it is not an integral part of the contract,
and consequently the contract is not broken, although the
representation proves to be untrue nor (with the exception
of the case of policies of insurance, or at all events marine
policies, which stand upon a peculiar and anomalous foot-
ing) is such untruth any cause of action, nor has it any
efficacy whatever, unless the representation was made
fraudulently, either by reason of its being made with a
knowledge of its untruth, or by reason of its being made
dishonestly, or with a reckless ignorance whether it was
true or untrue (z). If this be so, it is difficult to understand
the distinction which is to be found in some of the treatises,
and is in some degree sanctioned by judicial authority (a),
that a representation, if it differs from the truth to an
unreasonable extent, may affect the validity of the contract.
Where, indeed, a representation is so gross as to amount to
sufficient evidence of fraud, it is obvious that the contract
on that ground is voidable. Although representations are
not usually contained in the written instrument of contract,

(y) Behn v. Burness, 32L.J.,Q. Q. B. 221; Wheelton v. Hardisty, 27
B. 204, recognized and approved by L.J., Q. B. 241.
Erle, C.J., Mallan v. Radlof, 5 N. (a) Barker v. Windle, 6 Hl. & Bl.
R. 54. 675, 680.

(2) Elliott v. Von Glehen, 18 L. J.,

Behn v.
Burness.

139
140

WARRANTY DISTINGUISHED FROM REPRESENTATION.

yet they sometimes are, but it is plain that their insertion
therein cannot alter their nature. A question, however,
may arise whether a descriptive statement in a written
statement is a mere representation, or whether it is a sub-
stantive part of the contract. This is a question of con-
struction, which the Court and not the jury must determine.

“But with respect to statements in a contract descriptive
of the subject matter of it, or of some material incident
thereof, the true doctrine established by principle as well as
by authority appears to be, generally speaking, that if such
descriptive statement was intended to be a substantive part
of the contract (J), it is to be regarded as a warranty, that
is to say, a condition on the failure or nonperformance ot
which the other may, if he be so minded, repudiate the
contract in toto, and so be relieved from performing his
part of it (c), provided it has not been partially executed in
his favour. If, indeed, he has received the whole or any
substantial part of the consideration for the promise on his
part, the warranty loses the character of a condition, or,
to speak more properly, perhaps ceases to be available as a
condition, and becomes a warranty in the narrow sense of
the word, namely, a stipulation by way of agreement, for
the breach of which a compensation must be sought in
damages. Accordingly, if a specific thing has been sold
with a warranty of its quality, under such circumstances
the property passes by the sale; the vendee having been
thus benefited by the partial execution of the contract, and
become the proprietor of the thing sold, cannot treat the
tailure of the warranty as a condition broken, unless there
is a special stipulation to that effect in the contract (d), but
must have recourse to an action for damages in respect of
the breach of warranty.

“ But in cases where the thing sold is not specific, and
the property has not passed by the sale, the vendee may
retuse to receive the thing proftered to him in performance
of the contract, on the ground that it does not correspond
with the descriptive statement, or, in other words, that the
condition expressed in the contract has not been performed.
Still, if he receives the thing sold, and has the enjoyment
of it he cannot afterwards treat the descriptive statement as
a condition, but only as an agreement, for the breach of
which he may bring an action to recover damages,”

(b) Foster v. Smith, 18 C. B. 156, (@) Bannerman vy. White, 10 C. B.,
(c) Wheeltonv. Hardisty, 27L.J3.,  N. 8. 844.
Q. B. 241.
CHAPTER VIL.
FRAUDULENT CONTRACTS.

In many cases, where an attempt is made by one man
to overreach another, the law does not interfere ; because
when it is a mere struggle between mind and mind, caution
and wariness, if fairly exercised, may often be held suff-
cient to obviate the effects of cunning and duplicity («).

But where several combine for the purpose of aiding and
assisting each other in outwitting a single individual, there
the parties stand on very different terms, and that which
ordinary prudence might otherwise prevent, becomes often-
times a dangerous and powerful conspiracy, difficult to be
detected, and most disastrous in its consequences (a).

Where there is collusion between two or more to cheat
in the sale of a horse, an indictment for a conspiracy may
be maintained (b), because itis such an offence as affects
the Public, and against which no ordinary care or prudence
can guard (¢).

But no indictment lies for a conspiracy without evidence
either direct or indirect (7) of concert between the parties
to effectuate afraud. Thus in the case of Rex v. Pywell (e),
where a false warranty had been given, Lord Ellenborough
directed an acquittal, because one of two defendants,
though acting in the sale, was not shown to have been
aware that a fraud was practised (/).

So on an indictment against A., B., C., D., E., F., G,
and H., fur conspiracy to cheat M. by selling a glandered
horse as a sound horse, the evidence was that A. having
previously cheated M. by selling him a kicking horse, the
defendants B., C., D., and E., obtained that horse from M.
in exchange tor a glandered horse which he subsequently
sold. A. accompanied by G., afterwards sold M. another

(a) Reg. v. Bailey, 4 Cox,0.C.397. (d) Reg. v. Read, 6 Cox, 0. C.
(b) Pasley v. Freeman, 3 T. R. 184.

58; 1 R. R.634; Reg. v. Sheppard, (e) Rex v. Pywell, 1 Stark. N. P.
9C. & P. 1238. C. 402. ;
(c) Rex v. Wheatly, 2 Burr. (f) See Reg. v. Kenrick, 5 Q. B.

1127. 62.

Where the
law does not
interfere.

Where several
persons com-
bine to cheat.

Conspiracy to
cheat indict-
able.

There must be
evidence of
concert.

What evi-
dence has
been held
insufficient.
142

Conspiring to
obtain money
by false
pretences.

Conspiring to
induce a
creditor to
forego his
claim.

Where only
one person
cheats, an
action lies.

Chandelor v.
Lopus.

FRAUDULENT CONTRACTS.

horse, in which transaction the latter was again defrauded.
Some evidence was given to show that A. was frequently
in company with some of the other defendants, and that he
was aware of a previous sale of the glandered horse by
them, but there was no other evidence to connect him with
its sale to M. It was held by Mr. Justice Cresswell, that
in the absence of any evidence clearly leading to the con-
clusion that A. was a party to that sale, ‘there was no
evidence of a conspiracy to go to the jury against him (9).
Where on the sale of two horses the prosecutor was told
by both the defendants that certain horses had been the
property of a lady deceased, and were then the property of
her sister, that they had never been the property of a
horse-dealer, and were quiet and tractable, all of which
was absolutely false, the defendants were found guilty of
conspiring to obtain money by false pretences, as they knew
that nothing but a full belief of the truth of the above
statements would have induced the prosecutor to make
the purchase, he having repeatedly informed them that he
wanted the horses for his daughter’s use (A).

An indictment les for conspiracy, where persons have
conspired to induce a creditor by false representations to
forego part of his claim. Thus an indictment was held to
be good which alleged that S. sold B. a mare for 392;
that while the price was unpaid, B. and C., conspired by
false and fraudulent representations made to S. that the
mare was unsound, and that B. had sold her for 27/., to
induce 8. to accept 27/., instead of the agreed-on price of
39/., and thereby to defraud S. of 127. (2).

If one man alone sell an unsound horse for a sound
one, it is a mere private imposition, and no indictment can
be maintaimed, because the buyer should be more on his
guard (7). But if it be such an offence, as, if practised by
two, would be the subject of an indictment for a con-
spiracy, the vendor is civilly liable in an action for repara-
tion of damages at the suit of the purchaser, because col-
lusion is not necessary to constitute fraud (/).

Chandelor v. Lopus (2) is a well-known case on the
subject of fraudulent representation. It was an action on
the case against a jeweller for selling a jewel, affirming it

(9) Reg. v. Read, 6 Cox, C. C. (7) Rex v. Wheatly, 2 Burr.
135. 1128.
(h) Reg. v. Kenrick, 5 Q. B. 63. (k) Pasley v. Freeman, 3 T. R.

() BR. v. Carlisle, 23 L. J.,.M.C. 68; 1 R. R. 634.
109. (2) Chandelor v. Lopus, Cro. Jac. 4.
FRAUDULENT CONTRACTS.

to be a Bezoar stone, when really is was not one. All the
Justices and Barons, except Anderson, held “ that the bare
affirmation that it was a Bezoar stone, without warranting
it to be so, was no cause of action; and that, although
the seller fnew it to be no Bezoar stone, it was not
material, because everyone in selling his wares, will affirm
that they are good, or that the horse which he sells is
sound; yet if he does not warrant them to be so, it is no
cause of action, and the warranty ought to be made at the
same time as the sale.”

But the opinion of Anderson is now held to have been a
correct one; for he said, “The deceit in selling it as a
Bezoar, whereas it was not so, is cause of action.” And
the following remarks are made upon this case in Smith’s
Leading Cases (m):—‘‘If the plaintiff in this case were
to declare upon a warranty of the stone, he would at the
present day perhaps succeed, the rule of law being that
every affirmation at the time of sale of personal chattels
is a warranty, provided it appears to have been so in-
tended (7). If not, he would at all events succeed if he
were to sue in fort, laying a scienter, since the fact of
the defendant’s being a jeweller would be almost irresis-
tible evidence that he Anew his representation to be false.
When Chandelor v. Lopus was decided, as the action of
assumpsit was by no means so distinguishable from case,
ordinarily so called, as at present,—so the distinction was
not clearly recognized, which is now however clearly estab-
lished, between an action on a warranty express or implied,
which is founded on the defendant’s promise that the
thing shall be as warranted, and in order to maintain
which it is unnecessary that he should be at all aware of
the fallacious nature of his undertaking, and the action
upon the case for false representation, in order to maintain
which the defendant must be shown to have been actually
and fraudulently cognizant of the falsehood of his repre-
sentation, or to have made the representation fraudulently,
without belief that it was true; actions of the former
description then being usually framed in ‘ort, under the
name of actions for deceit. However, the main doctrine
laid down in Chandelor v. Lopus has never since been dis-
puted, viz., that the plaintiff must either declare upon a

(m) 1 Smith’s Leading Cases, 9th E. 473; Shepherd v. Kain, 5 B. &
ed. 187. Ald. 240; Zreeman v. Baker, 2N.&
(n) See Power v. Barham, 4A.& M. 446.

143

Remarks on
that case.
144

Form of
action.

Foundation of
the action.

In what fraud
consists.

There must
be moral
fraud.

Etiect of
fraud.

How the
uestion of
raud is to be

decided.

FRAUDULENT CONTRACTS.

contract, or, if he declare in ¢ort for a misrepresentation,
must aver a scievter. That such an action is maintainable
when the scienter can be proved, though there be no war-
ranty, is now (notwithstanding the dictum in Chandelor
v. Lopus) well established”’ (0).

Therefore where a person has been cheated or deceived
by fraud or artifice in purchasing a horse, his proper
remedy against the vendor is an action for fraudulent mis-
representation or deceit (p). Because such action lies
where a man does any deceit to the damage of another (¢).

The foundation of this action is fraud and deceit in the
defendant, and damage to the plaintiff. Fraud without
damage or damage without fraud gives no cause of action,
but where these two concw an action lies (7).

Fraud generally consists either in the wusrepresentation
or concealment of a material fact. But what does or does
not amount to fraud depends very much on the facts of
cach particular case, on the relative situation of the parties,
and on their means of information (s).

To support the action there must always be proof of
moral fraud (t) + because where there is no warranty, the
scienter or fraud is the gist of the action. Thus it was held
that an action on the case could not be maintained against
the defendant for selling a horse as his own, when in truth
it belonged to A. B.; because the plaintiff could not prove.
that the defendant Anew it to be the horse of A. B., for it
appeared that the defendant had bought it in Smithfield
market, but had neglected to get it legally tolled (z).

Fraud gives a cause of action, if it leads to any sort of
damage; but it avoids contracts only where it is the ground
of the contract, and where, unless it had been employed,
the contract would never have been made (v).

The facts to constitute fraud must be found by the jury;
but whether certain facts as proved amount to fraud is a
question of law ; and therefore legal fraud may exist, when

(0) Dunlop v. Waugh, Peake, 167 ; (s) Chit. Contr., 12th ed. 694,
Jendwine y. Slade, 2 Esp. 572; 5 (¢) Per Parke, B., Taylor v.
R. R. 754; Dobell v. Stevens,3 B.& Ashton, 11 M..& W. 413; per Lord
C. 625; Fletcher v. Bowsher, 2 Stark, Wensleydale, Smith v. Kay, 7 H. L.

N. P. C. 561; 20 R. R. 735. Cas. 775.
(p) Rex v. Wheatly, 2 Burr. («) Springwell vy, Allen, Aleyn,
1128. 91, cited in Williamson y. Allison,
(q) Com. Dig. tit. Action upon 2 East, 448.
the Case for a Deceit, A. 1. (v) Per Lord Wensleydale, Smith

(r) Per Croke, J., Bailey v. Mer- v. Kay, 7 H. L. Cas. 775; per
rvell, 3 Bulst. 95. See Barry v. Byles, J., Hotson v. Brown, 9 C. B.,
Croskey, 2 J. & H. 21. N.S. 445.
FRAUDULENT CONTRACTS. 145

the jury have found that the intention of the defendant was
not fraudulent (w).

If a person knowingly utters a falsehood with intent to
deprive another party of a benefit and acquire it to him-
self (x), or with intent to induce another party to do an act
which results in his loss, and damage naturally flows to the
other party from this belief, an action lies (y).

But an action cannot be supported for telling a bare
naked he ; and that is defined to be, saying a thing which
is false, knowing or not knowing it to be so, and without
any design to injure, cheat, or deceive another person.
Every deceit comprehends a lie ; but a deceit is more than
a lie, on account of the view with which it is practised, its
being coupled with some dealing, and the injury which it
is calcvlated to occasion and does occasion to another
person (2).

It is not necessary for the person defrauded to give direct
proof that he was influenced by the misrepresentation.

Falsehood
must be
followed by
damage.

A naked lie
no cause of
action.

Presumption
that person
defrauded was

And upon this point Lord Denman, C.J., said: “Ifa inauenced by
fraudulent representation is published, it must be presumed the misrepre-
sentation.

that a party who acts according to such a representation
was influenced by it” (a). But this appears to be rather
an inference for the Court than a question for the jury, for
in the case of Feret v. Hill (b), though the jury found that
the plaintiff had obtained a lease by fraud and misrepresen-
tation, yet the Court entered a verdict for the plaintiff on
the ground that the fraud was collateral, and that it did not
go to the root of the contract.

In considering the question of fraud, the Oourts have
endeavoured on the one hand to repress dishonesty, and on
the other they have required that before relieving a party
from a contract on the ground of fraud, it should be made
to appear that in entering into such contract he exercised a

Due caution
must always
be observed.

(w) See per Platt, B., Murray v.
Mann, 2 Ex. 539; Milne v. Mar-
wood, 15 C. B. 778; Broom’s
Maxims, 4th ed. 758, 759; Polwill
v. Walter, 3B. & Ad. 114. As to
the expression ‘‘legal fraud,” see
Weir v. Bell, 3 Ex. D. 238, 343, per
Bramwell, L.J.: Derry v. Peek,
15 App. Cas. 337, 365, 372, per
Lord Herschell.

() Barley v. Walford, 9 Q. B.
197.
(y) Longmead vy. Holliday, 6 Ex.

0.

766; and see Levy v. Langridge, 4
M. & W. 337.

(z) Per Buller, J., Pasley v. Free-
man,8T, R. 56; 1R. R. 634; and
Mummery v. Paul, 1 C. B. 322.

(a) Watson v. Earl of Charlmont,
12 Q. B. 862.

(6) Feret v. Hill, 23 L. J., CO. P.
185. But see the comments upon
this case in Canham v. Barry, 24
L. J., C. P. 100; and in &. v.
Saddlers Co., per Blackburn, J., 32
L. J., Q. B. 343.

L
146

Not fraud to
suppress what
there is no
duty to

communicate.

Requisites to
an action for
false represen-
tation.

Or on breach
of warranty.

Caveat
emptor.

FRAUDULENT CONTRACTS.

due degree of caution, because vigilantibus non dormientibus
succurrunt jura (c).

Therefore, to constitute fraud there must be an assertion
of something false within the knowledge of the person
asserting it, or the suppression of that which is true, and
which it was his duty to communicate. So if a person pur-
chases an article which is to be manufactured for him, and
the manufacturer delivers it with a patent defect which
may render it worthless, if the purchaser has had an oppor-
tunity of inspecting it, but has neglected to do so, the
manufacturer is not guilty of fraud in not pointing out the
defect (d).

In an action of deceit the plaintiff must prove actual
fraud. Fraud is proved when 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 (¢).

A false statement, made through carelessness and with-
out reasonable ground for believing it to be true, may be
evidence of fraud, but does not amount necessarily to fraud.
Such a statement, 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 (/).

But to support an action ex contractu, for a breach of
warranty, it is not necessary to prove that the representa-
tion was false to the knowledge of the seller. It is
sufficient that it was false in fact. For where a warranty
is given, by which the party undertakes that the article sold
shall, in point of fact, be such as is described, no question
can be raised upon the seienter, upon the fraud or wilful
misrepresentation (9).

If a purchaser, choosing to judge for himself, does not
avail himself of the knowledge or means of knowledge open
to him or to his agent, he cannot be allowed to say he was
deceived by the seller’s representations, the rule being
caveat emptor, and the knowledge of his agent being as
binding on him as his own knowledge (2).

(c) See Chit. Contr. 12th ed. 694; N.S. 265; 38 W. R. 33.

Shrewsbury v. Blount, 2 Scott, N.R. (f) Derry _v. Peek, 15 App. Cas.
588. 837; 58 L. Vins Ch. 864 ; 61 L. T.

(d) Horsfall v. Thomas, 1H.&C. N. 8. 265; 38° W. RB. 33, i
90; Smith v. Hughes, L. R., 6 (9) Attwood vy. Small, 6 0. & F.
Q. B. 597; 40 L. J., Q. B. 221; 256 444, 445; Broom’s Maxims, 4th ed.
L. T., N. S. 329. 756.

(e) Derry v. Peck, 15 App. Cas. (h) Attwood v. Small, 6 CO. & F.
337; 68 L. J., Ch. 864; 61L. T., 232. 2 e
FRAUDULENT CONTRACTS.

Thus then there are cases of two sorts, in which, though
aman is deceived, he can maintain no action. The first
class of cases is, where the affirmation is that the thing
sold has not a defect which is a visible one; there the
imposition and the fraudulent intent are admitted, but
there is no tort. The second kind of cases is where the
affirmation is (what is called in some of the books) a nude
assertion ; such as the party deceived may exercise his own
judgment upon. For where it is a mere matter of opinion,
he ought to make inquiries into the truth of the assertion,
and it becomes his own fault from Jaches if he is
deceived (7).

Assertions of this sort are what is called “dealing talk,”
such as is used more or less by shopkeepers and dealers of
every description. For instance, a horsedealer tells his
customer that a horse worth 402 is “worth a hundred
guineas,” or that a bad, clumsy goer, has “ fine action,” or
1s a “clever little horse.” And a person who allows him-
self to be imposed upon by such assertions has no remedy
against the vendor. Thus it appeared in the following case
that J. S., who had a term for years, affirmed to J. D., that
the term was worth 150/. to be sold, upon which J. D. gave
1507. and afterwards could not get more than 100/. for it,
and then brought his action. It was alleged that this
matter did not prove any fraud, for it was only a naked
assertion that the term was worth so much, and it was the
plaintiff's folly to give credit to such assertion. But if the
defendant had warranted the term to be of such a value to
be sold, and upon that the plaintiff had bought it, it would
then have been otherwise (/).

The Court will not set aside a deed on the ground of
previous or collateral fraud, unless the party is deceived
with regard to the execution of the deed itself, for the
representation must be as to matters material, and not
collateral only, to the contract (x).

If the folly of a contract be extremely gross, the circum-
stance will tend, if there be other facts in corroboration, to
establish a case for relief on the ground of fraud; but mere

(i) 1 Rol. Abr. 101; Yelv. 20; 1 man, 3T.R. 55; 1R. R. 634.
Sid. 146; Cro. Jac. 386; Bailey v. (k) Feret v. Hill, 23 L. J., C. P.
Merrell, 3 Bulst. 95; and per 185; Canham v. Barry, 24 L. J.,
Grose, J., Pasley v. Freeman,3T.R. C.P.100. See, too, per Blackburn,
54, J., R. v. Saddlers Co., 32 L. J.,
(j) Harvey v. Young, Yelv. 20; Q. B. 387, 348.
cited per Grose, J., Pasley v. Free-

2

147

A visible de-
fect and a
nude asser-
tion.

Dealing talk.

Collateral

fraud does
not avoid a
deed.

A foolish
bargain.
148 FRAUDULENT CONTRACTS.

folly and weakness, or want of judgment, will not defeat a
contract, even in equity (i).

But a vendor is unquestionably liable to an action of
deceit, if he fraudulently misrepresents the quality of the
thing sold to be other than it is in some particulars, which
the buyer had not equal means with himself of know-
ing (m); and the mere possession of the means of know-
ledge by the vendee does not necessarily, under all circum-
stances, oust the vendor’s liability for a false and fraudulent
representation (7).

Certain misrepresentations about a horse on sale at a
repository were made by the defendant to the plaintiff,
about four o’clock in the afternoon. On the morning of
the next day the defendant accompanied the plaintiff to
the auction yard, and pointed out the horse, saying, ‘ That
is the horse.’ On his being put up to auction the plaintiff
bought him, and he turned out to be unserviceable. It
was held that the plaintiff was entitled to recover damages
from the defendant, as the jury were satisfied that the
defendant knew of the falseness of the representations, and
that the fact of the sale having been made by an auctioneer
made no difference (0).

Where the purchaser and his friend were the only
bidders at an auction, the rest of the company being deterred
from bidding by the purchaser’s stating to them that he
had a claim against, and had been ill-used by, the late
owner of the article, it was held that such purchaser did
not acquire any property against the vendor under such
sale (p).

It signifies nothing whether a man represents a thing to
be different from what he knows it to be, or whether he
makes a representation which he does not know at the time
to be true or false, if in point of fact it turns out to be
Jalse (q); because there may undoubtedly be a fraudulent
representation, if made dishonestly, of that which the party
does not snow to be untrue, if he does not know it to be
true, or at least has not good grounds for believing it to be
true (r).

Representa-
tion known to
be untrue.

Made before
a sale by
auction.

Made by a
bidder at an
auction.

Representa-
tion not
known to be
true.

(2) Milnes v. Cowley, 8 Price, 620;
Prebble v. Boyhurst, 1 Swanst. 329.

(m) Per Lord Ellenborough, C.J.,

Vernon v. Keys, 12 Kast, 637; 11
R. R. 499.

(n) Ferrier v. Peacock, 2 F. & F.
717.

(0) Bardell v. Spinks, 2 OC. & K.
646.

Butsee Hopkins v. Tanqueray,

23 L. J., C. P. 162, ante, p. 135.

(p) Fuller v. Abrahams, 3 B. &
Bing. 116.

(q) Per Lord Mansfield, C.J.,
Schneider Vv. Heath, 3 Camp. 508;
14 R. R. 825.

(r) Per Parke, B., Taylor y. Ash-
ton, 11 M. & W. 413; and per Lord
Cairns in Reese River Silver Mining
FRAUDULENT CONTRACTS.

But to render a person liable to an action for false and
fraudulent representations, it is not enough to show that
the representations are false. If he acted upon a fair and
reasonably well-grounded belief that they were true, he is
not responsible for them, however unfounded they may
turn out to be (s).

It has been held that even the mere knowledge that the
other party is labouring under a delusion which materially
affects the contract, when the vendor suffers him to be
operated upon by that delusion, makes the contract void (¢).

The seller, however, is undoubtedly liable, where he
makes such misrepresentation as induces the buyer to for-
bear making those inquiries, which for his own security
and advantage he would otherwise have made (1).

Where a representation is made and a fraud practised
through the medium of a third party, and damage has re-
sulted, the vendor is liable to an action; and this was so
held by the Court of Common Pleas upon the following
facts:—It appeared that the defendant, who was about to
sell a public-house, falsely represented to B., who had
agreed to purchase it, that the receipts were worth 1802. a
month; and B., to the knowledge of the defendant, had
communicated the representation to the plaintiff, who in
consequence became the purchaser of it, and afterwards
found that the receipts had not been worth so much (v).

Where a third party makes a fraudulent representation
with regard to an article about to be sold, he is liable to
the purchaser. Thus where the plaintiff was about pur-
chasing a horse from a party who warranted him sound,
and who, for the corroboration of his statement, referred
him to the defendant, who warranted the horse sound in
the wind: Mr. Baron Alderson said, ‘‘the merits are,
whether or not the defendant made a fraudulent representa-
tion. It is proved that he did. He comes here to defend
himself from the charge of having made a fraudulent repre-
sentation on the occasion of the sale.” The jury found a
verdict for the plaintiff (w).

Co. v. Smith, L. R., 4 H. L. 64, 69; (v) Pilmore v. Hood, 5 Bing. N.C.
39 L. J., Ch. 849. 97; see also Swift v. Winterbottom,
(s) Shrewsbury v. Blount,2 Scott, L.R., 8 Q. B. 244, 253; 42 L. J.,
N. R. 588. Q.B.111; Swiftv. Jewsbury, L. R.,

(t) Hill v. Gray, 1 Stark. N.P. 9Q.B. 301; 43 L. J., Q. B. 56—
C. 4384; 18 RK. R. 802. Ex. Ch.; Richardson v. Sylvester,

(w) Per Lord Ellenborough, C.J.. L. B.,9 Q. B.34; 43 L.J.,Q.B.1.
Vernon v. Keys, 12 East, 367; 11 (w) Mash v. Densham, 1M. &
R. R. 499. Rob. 442.

149

A well-
grounded
belief.

Delusion
affecting the
contract.

Representa-
tion to pre-
vent inquiries,

Representa-
tion through a
third party.

Representa-
tion by a
third party.
150

A bond fide
representa-
tion.

Representa-
tion as to
credit.

Sale of goods
‘with all
faults” ex-
cludes latent
defects.

Unless there
be an express
warranty.

FRAUDULENT CONTRACTS.

An action, however, does not lie for a false representation,
whereby a party being induced to purchase the subject-
matter of the representation even from a third party, has
sustained damage, if the representation appear to have been
made bond fide under a reasonable and well-grounded belief
that the same was true, as the rule Caveat emptor applies (2).

A person should be careful how he gives credit to any
statement made by a third party as to the character and
ability of the person with whom he is about to deal; be-
cause under 9 Geo. 4, c. 14,s. 6, “no action lies to charge a
person upon or by reason of any representation or assurance
made or given relating to the character, conduct, ability,
trade, or dealings of any other person, to the intent that
such other person may obtain credit, money or goods
[there]upon, unless such representation, &e. be made in
writing, signed by the party to be charged therewith.”
The signature of an agent will not satisfy this section (y).
And one partner signing in the name of and by the express
authority of his firm will make himself only liable (z).

It is now well settled (a) that if goods are sold expressly
“with all faults,” the seller is not bound to disclose latent
defects, and is therefore not liable to an action in respect of
them, although he was aware of them at the time of sale,
unless there be an express warranty against some particu-
lar defect, or unless some artifice or fraud was practised to
prevent the vendee from discerning such defects; therefore,
in affecting such a sale of a horse, it is best for the seller
to say nothing, and let the purchaser inspect the horse, and
so Judge for himself.

So far as the description goes, there is an express war-
ranty against any particular defect, which is excluded by
that description. Accordingly, where an advertisement
for the sale of a ship described her as a “ copper-fastened
vessel,’ adding that the vessel was to be taken “with all
faults, without any allowance for any defects whatsoever ;””
and it appeared that she was only partially copper-fastened;
it was held that the vendor was liable on the ground that
she was warranted to be copper-fastened, and that, ‘with
all faults” applies to such faults only as a copper-fastened

(2) Shrewsbury v. Blount, 2M.&  Q. B. 301, Ex. Ch., reversing &. C.
G. 475; S. 0.2 Scott, N. R. 688; sub nom. Swift v. Winterbottom,
Haycraft v. Creasy, 2 East, 92; L.R.,8Q. B. 244.

6 R. R. 380; Ormrod vy. Huth, 14 (2) Williams v. Mason, 28 L. T.,
M. & W. 664. N. 8. 232; 21 W. R. 386.
(y) Swift v. Jewsbury, L. R., 9 (a) Chit. Contr. 12th ed. 503.
FRAUDULENT CONTRACTS.

vessel may have (b). But where a vessel which was
described as “ teak-built ”’ was sold, “to be taken with all
faults,” “‘ with any allowance for any defect or error what-
soever,” and it turned out that she was not “teak-built,”
it was held that this was a misdescription of the vessel,
which came within the term “error,” and that the vendor
was not liable as for a breach of warranty (c).

At one time Lord Kenyon held that a seller was bound
to disclose to the buyer all latent defects known to him,
and that buying “ with all faults” without a warranty
must be understood to relate only to those faults which the
buyer could have discovered, or with which the seller was
unacquainted (d).

However, Lord Ellenborough overruled this decision,
and said, “I cannot subscribe to the doctrine of that case,
although I feel the greatest respect for the judge by whom
it was decided. Where an article is sold ‘ with all faults,’
I think it is quite immaterial how many belonged to
it within the knowledge of the seller, unless he used
some artifice to disguise them, and to prevent their being
discovered by the purchaser. The very object of intro-
ducing such stipulations is to put the purchaser on his
guard, and to throw upon him the burden of examining
all faults, both secret and apparent. I may be possessed
of a horse I know to have many faults, and I wish to get
rid of him for whatever sum he will fetch. I desire my
servant to dispose of him, and instead of giving a war-
ranty of soundness, to sell him‘ with all faults.’ Having
thus laboriously freed myself from responsibility, am I
to be liable, if it be afterwards discovered that the horse
was unsound? Why did not the purchaser examine
him in the market, when exposed to sale? By acceding
to buy the horse ‘with all faults, he takes upon himself
the risk of Jatent or secret faults, and calculates accord-
ingly the price which he gives. It would be most in-
convenient and unjust, if men could not, by using the
strongest terms which language affords, obviate disputes
concerning the quality of the goods which they sell. In
a contract such as this, I think there is no fraud, unless
the seller by positive means renders ‘it impossible for the
purchaser to detect latent faults’ ” (e).

(0) Shepherd v. Kain, 5 B. & Ald. (2) Mellish v. Motteux, Peak. Cas.

240. 116.
(c) Taylor v. Bullen, 5 Ex. 779. (e) Baglehole v. Walters, 3 Camp.
156.

151

Or fraud is
used to con-
ceal them.
152

Plugging, &c.

Ward v.
Hobbs,

FRAUDULENT CONTRACTS.

Therefore, the meaning of a horse being sold “ with all
his faults” is, that the purchaser shall make use of his
eyes and understanding to discover what faults there are ;
and the seller is not answerable for them if he does not
make use of any fraud or practice to conceal them (/).

But it would appear from a case cited by Gibbs, J.,
in Pickering y. Dowson (g), that where a horse has been
sold “with all his faults,” and artificial means have been
used to conceal some defect, the vendor would be lable to
the purchaser for such conduct.

For instance, the practice of plugging, §c., or perhaps
the artificially filling up a sandcrack (/) or thrush (7)
(such devices being, without doubt, used to deceive the
purchaser) would each be a sufficient ground for an action
for deceit; because a man may act a le or fraudulent
representation without speaking a word, and the injury
under such circumstances would be damage as the result
of a fraudulent representation coupled with dealing. Thus
when a ship was sold “with all her faults,” but means
had been taken fraudulently to conceal some defects in her
bottom, the vendor was held liable (,).

But where animals are sold “with all faults,” it makes
no difference whether the sale takes place in a public market
or privately, provided that there is no fraudulent represen-
tation, or concealment of defect. The mere exposure for
sale of animals in a public market is not evidence of fraudu-
lent representation. Thus, im Ward v. Hobbs (k) the defen-
dant sent for sale, to a public market, pigs which he knew
to be infected with a contagious disease; they were exposed
for sale subject to conditions that the buyer must take them
with all faults, no warranty would be given and no com-
pensation would be made in respect of any fault. No
verbal representation was made by or on behalf of the
defendant as to the condition of the pigs. The plaintiff,
having bought the pigs, put them with other pigs, which
became infected; some of the pigs bought from the defen-
dant, and also some of those with which they were put,
died of the contagious disease. The plaintiff having sued
to recover damages for the loss which he had sustained;
it was held that, although the defendant might have been

3

sae Pickering v. Dowson, 4 Taunt. coe and Jones v. Bright, 3M. & P.

(g) 4 Taunt. 785. (&) Ward v. Hobbs, 4 App. Cas.
(h) Sanderack, ante, p. 92. 13; 48 L. J.,Q. B. 281; 40 L. T.,
(‘) Thrush, ante, p. 99. N.8.73; 27 W. R. 114.

iC

J) Schneider v. Heath, 3 Camp.
FRAUDULENT CONTRACTS.

guilty of an offence against the Contagious Diseases
(Animals) Act, 1869, he was not liable to the plaintiff, as
his conduct in exposing the pigs for sale in the market did
not amount to a representation that they were free from
the disease. But if the defendant’s statement had been
followed by a declaration that he believed the animals to
be free from disease, he would undoubtedly have been
lable to an action for deceit (1).

Fraud does not make a contract void, but only voidable,
at the election of the party defrauded, who has the option
of acquiescing in it, or of avoiding it(m). But until the
party defrauded disaffirms the contract it remains good (7).

If a party be induced to purchase an article by fraudulent
representations of the seller respecting it, he may treat it
as a good contract, or the moment he chooses to declare it
void, he may recover the price from the seller (0).

If, when it is avoided, nothing has occurred to alter the
position of affairs, the rights and remedies of the parties are
the same as if it had been void from the beginning; but if
any alteration has taken place, their rights and remedies
are subject to the effect of that alteration (y). Thus where
the plaintiff was induced by the fraud of the defendants to
become a shareholder in a company, it was held, that as he
had in the interval between the making of the contract and
the discovery of the fraud, received dividends, and otherwise
dealt with the property, he could not treat the contract as
void, and sue for money had and received ; but, though he
could not rescind the contract, inasmuch as such rescission
would work injustice, yet he might bring an action on the
deceit, and recover his real damages (q).

But if after discovering the fraud he continue to deal
with the article as his own, he cannot recover back the
money from the seller (rv). And the right to repudiate the
contract is not afterwards revived by the discovery of
another incident in the fraud (r).

A sale of goods effected by the fraud of the buyer is not
absolutely void, but the seller may elect to treat it as a

(1) Ward v. Hobbs, 4 App. Cas. at
p. 21, per Lord Cairns, L.C.

(m) Murray v. Mann, 2 Ex. 541;
Urquhart v. Macpherson, 3 App. Cas.
831; Story on Sales, 126.

(n) Dawes v. Harness, L. R., 10

L. J., Ex.17; 25 L. T., N. 8. 708.
(0) Murray v. Mann, 2 Ex. 541.
(p) See Broom’s Maxims, 4th ed.

293; and per Blackburn, J., R. v.

Saddlers Co., 32 L. J., Q. B. 343.
(q) Clarke v. Dickson, 27 L. J.,

©. P. 166; 44 L. J., ©. P. 194; Q. B. 223.
Clough v. London and North Western (r) Campbell. Fleming, 1A. & E.
Rail. Co., L. R., 7 Ex. 26, 34; 41 40.

153

Contract made
voidable by
fraud.

Where fraud
is practised
upon the
buyer.

Except where
it works in-
justice.

Where he
continues to
deal with the
article.

Where fraud
is practised
upon the
seller.
154

Resale by the
buyer to an
innocent
vendee.

Contract with
intent to cheat
the seller.

Preconceived
design of not
paying for

goods.

Question for
the jury.

Resale at a
reduced price.

FRAUDULENT CONTRACTS.

valid transaction (s), or has a right to treat the contract as
a nullity, and recover the value of the goods in an action of
trover (t).

If he does not treat the sale as void before the buyer has
resold the goods to an innocent vendee (s), or pledged them
for a bond fide advance (wu), the property will pass to the
vendee.

But the property will not pass to an innocent vendee,
unless the relation of vendor and vendee existed between
the original owner of the goods, and the person who has
fraudulently obtained them; for, if there be not a sale
between these parties there is no contract, which the owner
can either affirm or disaffirm (x). Thus where A., who had
formerly been B.’s agent, and had been known to the
plaintiff as such, after his agency ceased, obtained goods
from the plaintiff in the name of B., which he handed over
to the defendant, an auctioneer, by whom they were sold:
it was held, that the plaintiff might maintain trover against
the defendant, for there was never any sale to A., or any
contract between him and the plaintiff (y).

All contracts of purchase made with the fraudulent intent
to cheat the seller, and dispose of the goods at a swindling
price, to raise money, are held void (sz).

It would appear that where the buyer purchases goods
with the preconceived design of not paying for them, such
sale does not pass the property therein (a). Thus where
some sheep had been bought under such circumstances,
Chief Justice Abbott held that if the buyer contracted for,
and obtained possession of the sheep in question, with a
preconceived design of not paying for them, that would be
such a fraud as would vitiate the sale and prevent the pro-
perty from passing to him (0).

Whether the buyer has obtained possession of the goods
with such a preconceived design, is a question for the
jury (0).
ne resale of the goods at reduced prices immediately

(s) White v. Garden, 20 L. J., Ex. 342.

Cc. P. 166. (z) Gibson v. Carruthers, 8 M. &
(t) Ferguson v. Carrington, 9 B.&  W. 346.
C. 59; 8. 6.3 0. & P. 457 ; Load v. (a) See Irving v. Motley, 7 Bing.
Green, 15 M. & W. 216, 221. 551; Load v. Green, 15 M. & W.
(u) Kingsford v. Merry, 11 Ex. 221; Ferguson v. Carrington, 9 B. &
577. C. 59.
(«) Kingsford v. Ilerry, 26 L.J., (2) Earl of Bristol v. Wilsmore, 1
Ex. 83. B. & C. 521.

(y) Higgons v. Barton, 26 L. J.,
FRAUDULENT CONTRACTS.

after the buyer has obtained possession of them, is evidence
that such prior transaction is fraudulent (c).

A document which purports to be an agreement, and is
valid upon the face of it, but which is tendered in evidence
to show the transaction with which it is connected to be a
fraud, is admissible in evidence, although unstamped (d).

If a buyer, under terms to pay for goods on delivery,
obtains possession of them by giving a cheque, which is
afterwards dishonoured, he gains no property in the goods,
if, at the time of giving the cheque, he had no reasonable
ground to expect that it would be paid (e).

The contract of an infant, however fair and conducive to
lis interests it may be, is not binding on him, unless it be
for necessaries. By the common law, however, the con-
tracts of an infant, other than for necessaries, were for the
most part only voidable. But now, by the 37 & 38 Vict.
ce. 62, s. 1, all contracts, whether by specialty or by simple
contract, entered into by infants for the repayment of money
lent or to be lent, or for goods supplied or to be supplied
(other than contracts for necessaries), and all accounts
stated with infants, are made absolutely void; provided
always, that the above enactment “shall not invalidate any
contract into which an infant may, by any existing or future
statute, or by the rules of common law or equity, enter,
except such as are now by law voidable.” And it was no
answer at law to a plea of infancy, that the defendant, at
the time of entering into the contract, fraudulently repre-
sented himself to be of full age (7).

A husband is not liable for any fraud of the wife, which
is directly connected with and dependent upon a contract (9).
In a case in which an action had been brought against a
husband and wife for a false and fraudulent representation
by the wife to the plaintiffs, that she was sole and un-
married at the time of her signing a promissory note as
surety to them for a third person, whereby they were in-
duced to advance a sum of money to that person, it was
held that an action would not le. And Pollock, C.B.,
said, “ A feme covert is unquestionably incapable of binding
herself by a contract; it is altogether void, and no action

(c) Ferguson v. Carrington, 9 B.&  C. 621. .
C. 59; 8. 0.30. & P. 467. (f) Johnson v. Pye, 1 Sid. 258.
(d) Holmes v. Seasmith, 7 Ex. (g) Liverpool Adelphi Loan Asso-
802; Reg. v. Gompertz, 9Q. B. 824. ciation v. Fairhurst, 9 Ex. 422;
(¢) Hawse v. Crowe, R. & M.414; Wright v. Leonard, 30 L. J., C. P.
Earl of Bristol y. Wilsmore,1 B. & 366.

155

Unstamped
agreement
admissible to
prove fraud.

Payment by a
cheque which
is dis-
honoured.

Fraud of an
infant.

Of a married
woman.
156

Where a con-
tracting party
is old and

weak-minded.

Drunkenness
of a contract-

ing party.

Goods kept by
a party when
sober.

FRAUDULENT CONTRACTS.

will lie against her husband or herself for the breach of it.
But she is undoubtedly responsible for all torts committed
by her on any person, as for any other personal wrongs.
But when the fraud is directly connected with the
contract with the wife, and is the means of effecting it, and

arcel of the same transaction, the wife cannot be respon-
sible, and the husband be sued for it together with the
wife’? (2). As regards the liability of the wife, however,
this case is no longer the law, as a married woman can now
render herself responsible on her contracts, and therefore
hable on any tort arising out of them (2).

Equity will give relief where there is no reasonable
equality between the contracting parties, e.g.,1n a case in
which the vendor, being an aged, illiterate, weak-minded
man, though not a person absolutely incapable of man-
aging his own affairs, executed a deed of conveyance of his
property for a grossly inadequate consideration ().

Where a party, when he enters into a contract, is in
such a state of drunkenness as not to know what he is
doing, and particularly when it appears that this was
known to the other party, he cannot be compelled to per-
form the contract (J).

If, however, a man buys a horse when so drunk as not
to know what he is doing, but keeps it after he is sober, he
cannot set up his drunkenness as an answer to an action
for the price (17).

(h) See note (g), ante. N.S. 481.

(2) Eversley on Domestic Relations, (2) Gore v. Gibson, 138 M. & W.
p. 297. See also s. 1, sub-s. (2) of 626.
the Married Women’s Property Act, (m) Gore v. Gibson, 13 M. & W.
1882. 626.

(k) Longmate v. Ledger, 6 Jur.,
CHAPTER VIII.

BREACH OF WARRANTY.

Wuere a horse has been sold warranted sound, which it
can be clearly proved was unsound at the time of sale, the
seller is lable to an action on the warranty, without either
the horse being returned or notice given of the unsound-
ness. And in a case where there was a breach of war-
ranty, Lord Loughborough said, “No length of time
elapsed after the sale will alter the nature of a contract
originally false. It is not necessary that the horse should
be returned to the seller, or that notice should be
given ” (a).

Where a horse warranted sound turns out unsound, the
seller is not bound to take it back again; nor can the
buyer, by reason of the unsoundness, resist an action for
the price on the ground of breach of warranty, except
in case of fraud or express agreement authorising the re-
turn, or on a mutual rescission of the contract; but he may
give the breach of warranty in evidence in reduction of
damages (0).

And it would appear that where a contract is executory
only, as where a horse is ordered of a party, and he con-
tracts to supply one fit for a certain purpose, the buyer
may rescind the contract after he has received the horse, if
he does not answer that purpose, provided he has not kept
it longer than was necessary for trial, or exercised the
dominion of an owner over it, as by selling it.

This was decided in Street v. Blay (c), and as it is a
very important and leading case, it will be given together

(a) Fielder vy. Starkie,1 H. Bla.
17; 2B. R. 700; and see Poulton v.
Lattimore, 9 B. & C. 265.

(8) According to the law of Scot-
land, it appears that there would be
an absolute right to return the horse
upon the discovery of the breach of
warranty, without any specific stipu-
lation to that effect: Couston v.
Chapman, L. R., 2 H. L. (8. ©),
250, per Lord Chelmsford. See also

8. 11, sub-s. (2) of the Sale of Goods
Act, 1893, ante, p. 109.

(c) Street v. Blay, 2 B. & Ad,
456; and see Dawson v. Collis, 10
GC. B. 523; and Ollivant v. Bailey,
5 Q. B. 288. The principles upon
which the judgment in Street v. Blay
was grounded appear to be fully
confirmed by the provisions of s. 11,
sub-s. 1 of the Sale of Goods Act,
1893, ante, p. 108.

Buyer neither
bound to
tender the
horse nor
give notice.

Seller not
bound to take
back the
horse.

Unless the
contract was
executory.

Street v. Blay.
158

Judgment of
the Court of
King’s Bench.

Lord Eldon’s
opinion dis-
cussed.

BREACH OF WARRANTY.

with a considerable portion of the judgment delivered by
Lord Tenterden. The facts of the case were these: The
plaintiff, on the 2nd of February, sold a horse to the de-
fendant for 43/7. with a warranty of soundness. The defen-
dant took the horse, and on the same day sold it to one
Bailey for 457. Bailey, on the following day, parted with
it in exchange to one Osborne; and Osborne, in two or
three days afterwards, sold it to the defendant for 30).
No warranty appeared to have been given on any of the
three last sales; the horse was, in fact, unsound at the
time of the first sale, and on the 9th of February the
defendant sent the horse back to the plaintiff’s premises,
requiring the plaintiff to receive him again as he was
then lame; but the plaintiff refused to accept him. The
question for consideration was, whether the defendant,
under these circumstances, had a right to return the horse,
and thereby exonerate himself from the payment of the
whole price ?

After taking time to consider, Lord Tenterden, in de-
liverig the judgment of the Court, said, “It is not neces-
sary to decide whether in any case the purchaser of a
specific chattel, who, having had an opportunity of exercising
his judgment upon it, has bought it with a warranty
that it is of any particular quality or description, and
actually accepted and received it into his possession, can
afterwards, upon discovering that the warranty has not
been complied with, of his own will only, without the con-
currence of the other contracting party, return the chattel
to the vendor and exonerate himself from the payment of
the price, on the ground that he has never received that
article which he stipulated to purchase.”’

“There is indeed authority for that position. Lord
Eldon, in the case of Curtis v. Hannay (d), is reported to
have said, that he took it to be clear law, that if a person
purchases a horse which is warranted sound, and it after-
wards turns out that the horse was unsound at the time of
the warranty, the buyer might, if he pleased, keep the
horse and bring an action on the warranty, in which he
would have a right to recover the difference between the
value of a sound horse and one with such defects as ex-
isted at the time of the warranty; or he might return the
horse and bring an action to recover the full money paid; but
in the latter case the seller had a right to expect that the

(@) Curtis v. Hannay, 3 Esp. 83.
BREACH OF WARRANTY.

horse should be returned in the same state as he was in
when sold, and not by any means diminished in value. And
Lord Eldon proceeds to say, that if it were in a worse state
than it would have been in, if returned immediately after
the discovery, the purchaser would have no defence to an
action for the price of the article.” ‘It is to be implied
(says Lord Tenterden) that he would have a defence in
case it were returned in the same state, and in a reasonable
time after the discovery. This dictum has been adopted
in Mr. Starkie’s excellent work on the Law of Evidence (e),
and it is there said that a vendee may in such a case rescind
the contract altogether by returning the article, and refuse
to pay the price or recover it back if paid.”

“Tt is, however, extremely difficult, indeed impossible,
to reconcile this doctrine with those cases in which it has
been held that where the property in the specific chattel
has passed to the vendee, and the price has been paid, he
has no right, upon the breach of the warranty, to return
the article and revest the property in the vendor, and
recover the price as money paid on a consideration which
has failed, but must sue upon the warranty, unless there
has been a condition in the contract authorizing the return,
or the vendor has received back the chattel and has thereby
consented to rescind the contract, or has been guilty of a
fraud which destroys the contract altogether. In Weston v.
Downes (f), Towers v. Barrett (g), Payne v.° Whale (h),
Power v. Wells (i), and Emanuel v. Dane (j), the same
doctrine was applied to an exchange with a warranty as to a
sale, and the vendee held not to be entitled to sue in ¢rover
for the chattel delivered by way of barter for another
received. If these cases are rightly decided, and we think
they are, and they certainly have been always acted upon,
it is clear that the purchaser cannot by his own act alone,
unless in the excepted cases above mentioned, revest the
property in the seller, and recover the price when paid, on
the ground of the total failure of consideration; and it
seems to follow that he cannot by the same means protect
himself from the payment of the price on the same
ground.” ;

“On the other hand the cases have established, that the

(e) Starkie on Evidence, part iv. (h) Payne v. Whale, 7 Kast, 274.
p. 645. (i) Power v. Wells, Doug. 34, n.
(f) Weston vy. Downes, Doug. 23. (7) Emanuel v. Dane, 3 Camp.
(g) Towers v. Barrett, 1 T. R. 299.
133.

159

Evidence in
mitigation of
damages.
160

Unfitness for
a particular
purpose.

An interme-
diate profit.

Acts of

ownership in-

consistent
with trial.

BREACH OF WARRANTY.

breach of the warranty may be given in evidence in miti-
gation of damages, on the principle, as it should seem, of
avoiding circuity of action (*); and there is no hardship
in such a defence being allowed, as the plaintiff ought to
be prepared to prove a compliance with his warranty,
which is part of the consideration for the specific price
agreed by the defendant to be paid.”

“Tt is to be observed, that although the vendee of a
specific chattel, delivered with a warranty, may not have a
right to return it, the same reason does not apply to cases
of executory contracts, where an article, for instance, is
ordered from a manufacturer, who contracts that it shall
be of a certain quality, or fit for a certain purpose, and the
article sent as such is never completely accepted by the
party ordering it. In this and similar cases the latter may
return it as soon as he discovers the defect, provided he has
done nothing more in the meantime than was necessary to
give it a fair trial” (/).

“The observations above stated are intended to apply
to the purchase of a certain specific chattel, accepted and
received by the vendee, and the property in which is com-
pletely and entirely vested in him.”

“But whatever may be the right of the purchaser to
return such a warranted article in an ordinary case, there
is no authority to show that he may return it where the
purchaser has done more than was consistent with the
purpose of trial, where he has exercised the dominion of
an owner over it, by selling and parting with the property
to another, and where he has derived a pecuniary benefit
from it. These circumstances concur in the present case ;
and even supposing it might have been competent for the
defendant to return this horse, after having accepted it
and taken it into his possession, if he had never parted
with it to another, it appears to us that he cannot do so
after the re-sale at a profit.”

“These are acts of ownership wholly inconsistent with
the purpose of trial, and which are conclusive against the
defendant that the particular chattel was his own; and it
may be added that the parties cannot be placed in the
same situation by the return of it as if the contract had
not been made, for the defendant has derived an inter-
mediate benefit in consequence of the bargain, which he

(k) Cormack v. Gillis, cited 7 East, 532.
480; King v. Boston, 7 East, 481, n. ; (2) Okell v. Smith, 1 Stark. N. P.
and see Dawson v. Collis, 10 C. B. C.107; 18 R. R. 752.
BREACH OF WARRANTY.

would still retain. But he is entitled to reduce the damages,
as he has a right of action against the plaintiff for the
breach of warranty ” (7).

In another case, where the question of return was con-
sidered, the law laid down by the Court of Queen’s Bench
was confirmed by the Court of Exchequer. And Mr. Baron
Bayley said, ‘One party cannot rescind the contract unless
the other party agrees to it. The contract of warranty was
open, and entitled the plaintiff to recover damages for the
breach of it, but did not entitle him to return the horse,
and rescind the contract. In Street v. Blay (m), the law
on this subject was fully considered by the Court of King’s
Bench, and it was there laid down that a purchaser has no
right to return the article, unless there has been a condition
in the original contract authorizing the return, or the
vendor has subsequently consented to rescind the contract,
or unless the case turn out to be one of fraud. According
to Power v. Welles (n), if the contract is still open, you
cannot maintain an action for money had and received ; 1
take the rule to be, that if the contract remains open, so as

to give the party a right to recover damages for a breach of

warranty, he cannot maintain an action of indebitatus
assumpsit on the ground of the failure of consideration.”

And Lord Lyndhurst said, “There was a proposition in
this case to rescind the contract, which the defendant was
at first willing to accede to, but the agreement to rescind
was never completed, therefore the contract remained open.
One party alone could not, by his own act, rescind the con-
tract. The case of Street v. Blay(o) seems to have been
very much considered. That case shows that you cannot
treat a contract as rescinded on the ground of the breach of
warranty, except there was an original agreement that the
party should be at liberty to rescind in such case, or unless
both parties have consented to rescind it. According to
that decision, which is the most recent, your remedy was an
action for damages” (p).

The remedy for breach of warranty is concisely stated by
section 58 of the Sale of Goods Act, 1893, which, in so far
as it deals with such remedy, is in the following terms :—

(1.) “ Where there is a breach of warranty by the seller,
or where the buyer elects, or is compelled, to treat any

(m) Street v. Blay, 2 B. & Ad. 456.

456. (p) Gompertz v. Denton, 1 Cr. &
(x) Power v. Welles, Cowp. 818. M. 207.
(0) Street v. Blay, 2 B. & Ad.

oO. M

161

Confirmed by
a later case.

Remedy for
breach of
warranty.
162

Goods are re-
turnable
where there is
fraud.

Agreement
that a horse
is to be re-
turned if
unsound.

BREACH OF WARRANTY.

breach of a condition on the part of the seller as a breach
of warranty, the buyer is not by reason only of such breach
of warranty entitled to reject the goods ; but he may ;

(a) set up against the seller the breach of warranty in

diminution or extinction of the price; or

(b) maintain an action against the seller for damages for

the breach of warranty.

(4.) The fact that the buyer has set up the breach of
warranty in diminution or extinction of the price does not
prevent him from maintaining an action for the same breach ~
of warranty if he has suffered further damage.

(5.) Nothing in this section shall prejudice or affect the
buyer’s right of rejection in Scotland as declared by this
Act.”

The buyer may elect to treat any breach of a condition on
the part of the seller as a breach of warranty under section 11,
sub-section (1) (a), ante, pp. 108, 109, and be compelled
to do so under section 11, sub-section (1) (c), ante, p. 109.

In an unconditional warranty, the only ground on which
goods are returnable is that of fraud. And Mr. Baron
Parke, referring to the case of Street v. Blay (q), said,
“When a horse is warranted sound, and turns out other-
wise, the purchaser has no right to return him, unless the
warranty was fraudulent; his only remedy is an action on
the warranty ; this has been /ately settled, but the general
impression formerly among the profession, and now
amongst all others, is, that the purchaser is to return the
horse” (7).

But if on the sale of a horse there be an express warranty
by the seller that the horse is sound, free from vice, &c.,
yet if it be accompanied with an undertaking on the part of
the seller to take back the horse and repay the purchase-
money, and on trial he shall be found to have any of the
defects covered by the warranty, the buyer must return him
as soon as he discovers any of those defects, unless he has
been induced to prolong the trial by any subsequent mis-
representation of the seller, because in such case a trial
means a reasonable trial (s).

The right to return a horse sold with a warranty which
proves incorrect, is not taken away by the fact that the
buyer, before removing him, might have found out that the

(q) Street v. Blay, 2B. & Ad. Houldsworth vy. City of Glasgow
456. Bank, 5 App. Cas. 317.

(r) Hilliard y. Orbell, Ex. Sit- (s) Adam v. Richards, 2 H. Bla.
tings, Jan. 11, 1834. See also 573; 3 R. R. 508.
BREACH OF WARRANTY.

warranty was untrue, or by the fact that the horse whilst
it is in the buyer’s possession is injured without his default,
by an accident arising from a defect inherent in the horse (¢).
Thus, in Head v. Tattersall (¢), the plaintiff bought a mare,
warranted to have been hunted with certain packs of
hounds. According to the terms of the sale, the mare,
if objected to, was to be returned within a specified time.
The plaintiff paid for the mare, but before removing her
from the defendant’s establishment he was informed by
some person that the warranty was incorrect. The mare,
whilst she was being taken away by the plaintiff’s groom,
became restive and received serious injury. The plaintiff
returned her within the specified time. The warranty was
in fact untrue. The plaintiff brought an action to recover
the price of the mare, and it was held that nothing that had
happened took away the plaintif’s right to return the mare,
and that he was entitled to succeed.

Where a horse is bought on condition that he is to be
returned if he does not suit, as the contract for sale is not
absolute, the horse may be returned, and an action brought
for the price, if paid, as money had and received to the use of
the plaintiff (uv). But the purchaser must not keep him
longer than is necessary for trial, nor exercise the dominion
of an owner over him, as by selling him (v). Such an
action was brought in the following case, to recover ten
guineas which the plaintiff had paid to the defendant for a
one-horse chaise and harness, on condition that it was to be
returned in case the plaintiff’s wife should not approve of it,
paying 3s. 6d. per diem for the hire of it. This contract
was made by the defendant’s servant, but his master did
not object to it at the time. The plaintiff’s wife not approv-
ing of the chaise, it was sent back at the expiration of three
days, and left on the defendant’s premises, without any
consent on his part to receive it; the hire of 3s. 6d. per
diem was tendered at the same time, which the defendant
refused, as well as to return the money. A verdict was
found for the plaintiff. And a rule to show cause why a
nonsuit should not be entered, on the ground that this
action for money had and received would not lie, was dis-
charged (2).

Where goods are bought on condition that they should

(t) L. R., 7 Ex. 7; 41 L. J., Ex. (v) Street v. Blay, 2 B. & Ad.
4; 25 L. T., N. 8. 6381. 456.

(u) Towers v. Barrett, 1 T. R. (c) Towers v. Barrett, 1 T. R.
133. 138.

M 2

163

Head v. Tat-
tersall.

Or unsuitable.
164

Or unfit for
a particular
purpose.

Verbal offer
after sale to
take back the
horse.

Or the con-
tract becomes
complete.

Where buyer
should tender
the horse,

Sale after
tender.

BREACH OF WARRANTY.

be returned, if unsuitable, they would not be returnable on
a disapproval which is not bond fide, or which is merely
capricious (vy). But in a case in which an order for a
carriage had been given and accepted on the express condi-
tion that the carriage should meet the approval of the
defendant on the score of convenience and taste, it was
held, that he was entitled (acting bond fide, and not from
mere caprice) to return it (s).

Where a horse is bought, warranted fit for a particular
purpose, and he proves unfit for that purpose, it has been
held, that the purchaser may return him and bring an
action for the price, if paid (a).

But where, after a warranty of a horse as sound, the
vendor, in a subsequent conversation, said, that 17 the horse
were unsound (which he denied) he would take it again and
return the money, it was held, that this was no abandonment
of the original contract, which still remained open; and
that though the horse be unsound, the vendee ought to sue
upon the warranty, and could not maintain an action for
money had and received, to recover back the price after a
tender of the horse (0).

If goods delivered on ‘sale or return” be not returned
within a reasonable time, or the return of them be ren-
dered impossible by the act of the buyer, the contract of
sale becomes complete, and an action for goods sold and
delivered may be maintained by the seller (c).

Where a breach of warranty has taken place it is pru-
dent for the buyer, in an ordinary case, to tender the horse
back to the seller immediately on discovering such breach (d) ;
and so entitle himself to be repaid the expenses he has
been put to in keeping him (ec); and if the seller receive
him back there will be a mutual rescission of the original
contract (/').

But where the seller refuses to take back the horse, he
should be sold as soon as possible for the best price that
can be procured (y). And, perhaps, the best course to be

(y) Daliman vy. King, 5 Scott, of Goods Act, 1893.

382. (d@) Selwyn’s N. P., 8th ed.,vol.i.,
(2) Andrews v. Belfield,2 C. B., pp. 657, tit. Deceit, I. 2, cited in
N. 8. 779. Chesterman v. Lamb, 2 A. & E. 129.

(a) Chanter vy. Hopkins, 4 M. & (e) Chesterman v. Lamb, 2 A. &
W. 400; but see Dawson v. Collis, E.129; Cross y. Bartlett, 3 M.& P.

10 C. B. 523. 542.
(b) Payne v. Whale, 7 Bast, 274. (f) Weston v. Downes, Doug. 24.
(c) Moss v. Sweet, 16 Q. B. 493 ; (g) Caswell y. Coare, 1 Taunt.

20 L. J., Q.B.167; 16 L. T.,0.8. 566; 10 R. R. 606.
341. See also s. 18, 1. 4 of the Sale
BREACH OF WARRANTY.

pursued under such circumstances is to sell him by public
auction, for in that way the true market value, which is the
proper measure of damages, can best be discovered (/).

If the buyer does not wish to tender the horse, he
should at any rate give notice of the breach of warranty,
because the not giving notice will be strong presumption
against the buyer that the horse, at the time of sale, had
not the defect complained of, and will make the proof on
his part much more difficult (7). And unless the breach
in such case is clearly established, the jury will naturally
suppose that the horse corresponded with the warranty (h).

The longer the time before notice, or bringing an action
after discovering the breach of warranty, the greater will
be the difficulty in making out a good case to a jury (i).
But where the breach of warranty can be clearly proved,
the length of time before notice does not appear material.
For the Court of King’s Bench, in a case where an unsound
horse was sold with a warranty of soundness, decided that
the buyer might maintain an action on the warranty,
although shortly after the sale he had discovered the un-
soundness, and, without giving notice of that fact to the
seller, had kept and used the horse for nine months as his
own, during which period he had given him physic, and
used other means to cure him ; he had also cut the horse’s
tail. The case had been tried at the Hereford Assizes
before Mr. Justice Parke, who directed a nonsuit. How-
ever, in the ensuing term a rule was obtained to set that
nonsuit aside, and for new trial, the cases of Fielder v.
Starkie (1) and Caswell v. Coare (m) being referred to. In
showing cause, it was contended that Fielder v. Starkie (/)
was overruled, or at least qualified, by subsequent cases ;
but Lord Denman, with the assent of Justices Littledale,
Patteson and Coleridge, said, “ We think that Melder v.
Starkie is not overruled. The rule must be absolute” (x).

The seller, on receiving notice of a breach of warranty,
should have the horse examined by some skilful person,
and so ascertain the exact state of the case. If he find
that the warranty is broken, or that there is doubt, he had
better either take back the horse, or come to what terms

(h) Dingle v. Hare, 7C. B.,N.S8. (1) Fielder v. Starkie, 1 H. Bla.
145. 17; 2R. RB. 700.

(i) Fielder v. Starkie, 1 H. Bla. (m) Caswell v. Coare, 1 Taunt.
17; 2B. R. 700. 566; 10 R. R. 606.

(&) Poulton v. Lattimore, 9 B. & (x) Pateshall v. Tranter, 3 A. &
C. 265.. E. 103; 8. ¢., 4 Nev. & M. 649. ;

165

Notice in-
stead of ten-
der.

Length of
time before
notice.

Seller should
have the
horse ex-
amined.
166 BREACH OF WARRANTY.

he can with the buyer, as horse causes are decided in a
great measure by the strength of veterinary testimony.
But if he find that there is really no breach of warranty,
the evidence of the party who has examined the horse will
place him in a favourable position in case an action should
be brought.

Sale by order In an action for the breach of warranty of a horse, an

ane order may be made under Ord. L. r. 2, for the sale of the
horse, as “goods which for some just and sufficient reason
it may be desirable to have sold at once” (0).

(0) Bartholomew v. Freeman, 3 C. P. D. 316; 38 L. T., N. 8. 814;
26 W. R. 743.
CHAPTER IX.
PLEADING, EVIDENCE AND DAMAGES.
Pleading and Evidence for the Plaintiff.

Wuere you proceed for a breach of an executory con- Executory
tract, you must rest on the contract itself; but when the ®4 executed
contract has been executed, you proceed on the promise send
implied by law (a).

“ Where, under a contract of sale, the property in the Action for
goods has passed to the buyer, and the buyer wrongfully Pree.
neglects or refuses to pay for the goods according to the
terms of the contract, the seller may maintain an action
against him for the price of the goods’? (0).

“ Where, under a contract of sale, the price is payable
on a day certain irrespective of delivery, and the buyer
wrongfully neglects or refuses to pay such price, the seller
may maintain an action for the price, although the property
in the goods has not passed, and the goods have not been
appropriated to the contract” (c).

Where the buyer wrongfully neglects or refuses to accept Action for not
and pay for the horse he has bought, the seller may maintain ®cePtins-
an action against him for damages for non-acceptance (d),even
though the horse may afterwards have been re-sold (e) ; and
the statement of claim will set out facts showing the cow-
sideration and the promise, the breach, and the damage.

Where a certain time or place for delivery has been agreed
upon, it is the duty of the vendor to tender the horse, and
such tender must be proved (/).

Where by the terms of the contract the defendant was
bound to fetch away the horse, the plaintiff should state in
the statement of claim that he has not done so, and aver his
own readiness and willingness to deliver (g).

(a) Per Lord Campbell, Lowe v. 761; 8. C4 Bing. 722; Hore v.
London and North Western Rail. Co., Milner, Peake, N. P. C. 58, n.

21 L. J.,Q. B. 363. (f) Bordenave v. Gregory, 5 East,
(d) Sale of Goods Act, 1893,s.49, 111.

sub-s. (1). (g) Bach v. Owen, 5 T. R. 409;
(c) Ibid., sub-s. (2). Rawson v. Johnson, 1 Kast, 203;
(d) Ibid., s. 50, sub-s. (1). 6 R. R. 252; Wilks v. Atkinson, 1

(e) Maclean v. Dunn, 1 M. & P. Marsh, 412.
168

Resale of the
goods.

Action for
detention of
goods.

Action for not
delivering.

PLEADING, EVIDENCE AND DAMAGES.

Where the purchaser of goods refuses to take them, the
vendor by reselling them does not preclude himself from
recovering damages for breach of contract. And it was
decided by the Court of Common Pleas that “ when a party
refuses to take goods he has purchased, they should be
resold, and that he should be liable for the loss, if any, upon
the resale” (i). nr

An action for the detention of goods may be maintained
by any person who has either an absolute or a special pro-
perty in goods, which are capable of being ascertained,
against another, who is in actual possession of such goods
either by delivery or finding, and refuses to deliver
them (i). ;

As this action proceeds on the ground of property in the
plaintiff at the time of action brought, it cannot be main-
tained, if the defendant took the goods tortiously, for by
the trespass the property of the plaintiff is divested (7).
But if I lend a man a horse, and he afterwards refuses to
restore it, this injury consists in the detaining, and not in
the original taking; and the regular method for me to
recover possession is by action for the detention (/). This
would be the proper form of action for the specific restitu-
tion of a horse, which has been unlawfully detained by a
trainer, vetermary surgeon, livery stable-keeper, or other
person, into whose hands it had lawfully come in the first
instance.

Where the seller wrongfully neglects or refuses to deliver
the horse he has sold to the buyer, the buyer may maintain an
action against the seller for damages for non-delivery (/); and
where a particular time for delivery has been agreed upon, the
statement of claim will set out facts showing the consideration
and promise, the breach and the damage, and aver a readi-
ness and willingness to accept and receive the horse and
pay the price (7). Ifno particular time has been specified,
and the contract be to deliver the horse generally, as where
an action of assumpsit for not delivering was brought against
a party who had sold the plaintiff a mare, and promised, if
she proved unsound, to provide another or return the
money (7), there must be a special request to deliver, which

(4) Maclean v. Dunn, 4 Bing. — sub-s. (1).

722. (m) Bordenave v. Gregory, 5 East,
(‘) Selwyn’s N. P., 12th ed. 660, 111. See Order XIX. r. 14.

662. (x) 3 Wentw. 3; and 2 Chit.
(k) 3 Steph. Com. 524. Pleading, 6th ed. 166.
(2) Sale of Goods Act, 1893, s. 51,
PLEADING AND EVIDENCE FOR THE PLAINTIFF.

will come under a general averment of performance of con-
ditions precedent (0). But if a place is mentioned, and no
time (p), or the defendant has incapacitated himself from
completing the agreement, as by reselling, &c., a request to
deliver is unnecessary (¢).

“Tn any action for breach of contract to deliver specific
or ascertained goods the Court may, if it thinks fit, on the
application of the plaintiff, by its judgment or decree direct
that the contract shall be performed specifically, without
giving the defendant the option of retaining the goods on
payment of damages. The judgment or decree may be
unconditional, or upon such terms and conditions as to
damages, payment of the price, and otherwise, as to the
Court may seem just, and the application by the plaintiff
may be made at any time before judgment or decree” (7).

‘Where the vendor has delivered the horse, and the pur-
chaser neglects or refuses to pay for him; or if a horse or
goods be taken in part payment, and the residue is un-
paid (s); or if the purchaser has the horse on the terms
of sale or return, and keeps him an unreasonable time, the
vendor may maintain an action for goods sold and
delivered (t).

Where a portion only of a larger bulk of goods to be
delivered in pursuance of a written contract by a stated
time has been delivered, and the purchaser then rescinds
the contract, the vendor may maintain an action for goods
sold and delivered, although the time fixed for the payment
of the goods has not elapsed (x).

And where A. agreed to give a horse warranted sound in
exchange for a horse of B. and a sum of money, and the
horses were exchanged; but B. refused to pay the money,
pretending that A.’s horse was unsound ; it was held that
A. might recover for a horse sold and delivered (w).

Where an article, which has been paid for, does not

(0) Bach v. Owen, 5 T. R. 410.

(p) See Jones v. Gibbons, 22 L. J.,
Ex. 348.

(q) Bowdell v. Parsons, 10 East,
309.

(r) Sale of Goods Act, 1893, s. 52.
This enactment reproduces, with
modifications owing to the Judicature
Acts and Orders, s. 2 of 19 & 20 Vict.
c. 97 (the Mercantile Law Amend-
ment Act, 1856), now repealed.

(s) Sheldon v. Cox, 3 B. & C. 420;
Harrison v. Luke, 14 M. & W. 139.

(t) Bayley v. Gouldsmith, Peake,
56; Bianchi v. Nash, 1 M. & W.
545; Dyer v. Cowley, 17 L. J.,
Q. B. 861; Moss v. Sweet, 16 Q. B.
493; 16 L. T., O. 8S. 341.

(«) Bartholomew v. Markwick, 33
L. J., C. P. 145.

(x) Sheldon v. Cor, 3 B. & C.
420; 5 D. & R. 277; Earl of
Fahunouth v. Penrose, 6 B. & C. 387;
and see 2 Chit. Pleading, 6th ed.
167.

169

Specific per-

formance.

Goods sold
and delivered
for payment
of the price.

Action main-
tainable on
rescission of
contract by
one of the
parties.

Horse sold
and delivered.

Money had
and received
170

for repay-
meut of
the price.

Under a mis-
take.

Money had
and received
for repayment
of part of the
price.

Money had
and received

PLEADING, EVIDENCE AND DAMAGES.

answer the description of the thing which when bought it
purported to be (y); or where a horse is bought warranted
sound, &e., and paid for, and on its turning out unsound is
returned to the seller, who receives it, there is a mutual
rescission of the contract, and the buyer may recover the
price paid in an action for money had and received (s). Also,
where a horse has been bought warranted sound, to be re-
turned if wrsound (a) ; or if the contract is, that the horse
is to be returned if unsuitable (b) ; or unfit for a particular
purpose (c); and circumstances arise in any of these cases
which justify the return of the horse, and the horse is ten-
dered, the same form of action lies tor repayment of the price.
A claim for horse meat and stabling may be added if
necessary.

Where money is paid with a knowledge of all the facts,
but under a mistake of the law, it cannot in general be re-
covered back (¢). But money paid under a mistake of
facts, and which the party retaiming it has no claim in con-
science to retain, is recoverable as money paid without con-
sideration (e), even though the plamtift cannot be put in
statu quo (f).

Where a horse is bought and the price paid, but the
buyer, by the terms of the agreement, has the option of
returning the horse within a certain time, allowing a
certain sum for the use of it, the residue of the price may
be recovered by him after the horse has been returned or
tendered in an action for money had and received. Thus,
where a pair of horses were bought for 80/. and paid for,
with liberty to return them within a month, allowing the
seller 10/7. out of the 802, but that if the buyer kept them
beyond the month, he should pay the seller 10/. beyond the
8O/., it was held that upon the horses being returned within
the month, the buyer had a right to recover the 70/. from
the seller, in an action tor money had and received (g).

If a sheriff wrongfully seize and sell the horse of a third
person under an execution, the latter may sue him for

(y) Gompertz v. Bartlett, 22 L. J., (c} Chanter vy. Hopkins, 4 M. &
Q. B. 99. W. 406.
(2) Weston v. Downes, Doug, 24 ; (d) Platt v. Bromage, 24 L. J.,

Dower vy. Wells, Cowp. 818; and Ex. 63; Burker v. Pott, 4 H. & N.
Simpson vy. Potts, betore Rolfe, B., 759; Rogers v. Ingham, L. R., 3
Carlisle Spr. Ass. 1847. Ch. D. 351,
(a) Adam vy. Richards, 2 IL. Bla. (e) Boze v. Dickason, 1 T. R. 285.
573; 3 R. RB. 508. (f Standish v. Ross, 3 Ex. 527.
(6) Lowers vy. Barrett, 1 T. R. (g) Hlurst v. Orbell, 8 A. & E.
138. 107.
PLEADING AND EVIDENCE FOR THE PLAINTIFF,

money had and received; and he will make out a primd facie
case by merely proving his, the plaintiff's, possession of the
horse at the time of seizure. Thus, in the case of Oughton
v. Seppings (h), a sheriff’s officer had wrongfully seized
under a fi. fa. against A.a horse belonging to B. The
horse was sold by the sheriff, and the money paid over to
the officer. B. brought an action against the officer, for
money had and received, to recover the amount. It appeared
that the horse had belonged to the husband of B., but that
after his death she had provided for his keep ; and although
no letters of administration were produced, it was held that
this was sufficient evidence against a wrongdoer to entitle
her to recover in the action.

Money received by B. on A.’s account, subject to certain
conditions, cannot, until those conditions have been com-
plied with, be recovered as money had and received to A.’s
use (7).

Where a horse or other article has been sold warranted,
but is in fact not according to the warranty, the purchaser
may of course maintain an action on the warranty; and in
such action the statement of claim willset out facts showing
the consideration and the warranty, and state a purchase ;
it will also set out the breach and the damage.

Although infants are liable for forts and injuries of a
private nature (k), yet where the substantial ground of
uction is contract, the plaintiff cannot, by suing in tort,
render a person liable who would not have been lable on
his promise. Therefore where the plaintiff declared that
having agreed to exchange mares with the defendant, the
defendant by falsely warranting his mare to be sound, well
knowing her to be unsound, falsely and fraudulently de-
ceived the plaintiff, &c., it was held that infancy was a good
plea in bar (/). :

We have seen in Chapter VII. under what circum-
stances an action lies, where a horse has been sold without
a warranty, and also what constitutes fraudulent representa-
tion (m). Where such an action is brought, the statement
of claim, in setting out the material facts, should include
the statement of the wrongful act, namely, the sale by
means of the fraudulent representation (i), and with regard

(h) Oughton v. Seppings, 1 B.& 485; 17 R. R. 529; Howlett vy.

Ad. 241. Haswell, 4 Camp. 118.
(i) Hardingham vy. Allen, 5 C. B. (2) Ibid.
93 (m) See ante, pp. 144—146.

7) Green v. Greenbank, 2 Marsh. (n) Mummery v. Paul, 1 C. B. 325.

171

for price of
horse wrong-
fully sold.

Money re-
ceived subject
to certain con-
ditions.

Action on a
breach of
warranty.

Liability of
an infant.

Action for
fraudulent
representa-
tion.
172

Statement of
tacts in an
action for
breach of
contract.

Statement ot
facts in an
action for
deceit.

Statement of
the considera-
tion.

If the horse
turn out
lucky.

PLEADING, EVIDENCE AND DAMAGES,

to which a scienter must be laid; and also the statement
of the damage.

In an action for breach of contract, a preamble, stating
the circumstances under which the contract was made, or
to which the consideration has reference, is sometimes neces-
sary. But where the mere statement of the consideration and
promise will be sufficiently intelligible without any prefatory
allegation, they may be set forth without any preamble.

The action for a misrepresentation in the nature of deceit
seems to be an exception from the general rule, that in
actions for words, or special damage arising therefrom. the
very words must be set out, but the statement of claim
must correctly state the contract (0).

The consideration may either be executed or executory.
An executed consideration consists of something past, or
done before the making of the promise, and must be shown
to have arisen at the defendant’s request ().

An executory consideration is something to be done, and
in the statement of it a greater degree of certainty is re-
quired (7). But in either case the whole of the considera-
tion, if it be an entire one, should be stated; no part of it
ought to be omitted (7). Thus, where an agent sold a
horse belonging to A., and another belonging to B., to C.
at an entire price, and warranted them sound; and B.’s
horse turning out to be unsound, C. brought his action
against b., declaring in the usual form as upon a purchase
and warranty of one horse only; Lord Ellenborough, C.J.,
held that the evidence did not support the declaration,
because the contract bemg entire for the sale of two horses,
the plaintiff could not divide it, and declare upon it as upon
the sale of one horse only (s).

But where, in an action of asswmpsit on the warranty of
a horse, the consideration stated for the warranty was, that
the plaintiff would purchase the horse for 63/.; but the
consideration as proved was, that the plaintiff would pay
that sum, and if the horse was “ /ueky,” would give the

(0) G@utsole vy. Mathers, 1M. & W.
495; Barley v. Walford, 9 Q. B.
197. See also 1 Chit. Pleading, 6th
ed. 3884; and Jreland v. Johnson, 1
Bing. N. C. 162; Brotherton v. Wood,
6 Moore, 384; Doorman \. Brown, 3
Q. B. 11.

(p) See 1 Chit. Pleading, 6th ed.
295; and Wing vy. Sears, 2.C., M. &
R. 538.

(g) See 1 Chit. Pleading, 6th ed.
296 ; and Ring v. Rorbrough, 2 Tyrw
468; 8. 6.2 C.& J. 418.

(rv) Clarke v. Gray, 6 East, 564;
see also Robertson v. Howard, 3
C. P. D. 280; 47 L. J., ©. DP. 480.
As to an exchange, see Mayor of
Reading v. Clarke, 4 B. & Ald. 269.

(s) Symonds v. Carr, 1 Camp. 361.
PLEADING AND EVIDENCE FOR THE PLAINTIFF.

defendant 5/. on the buying of another horse; it was held
to be no variance, as the conditional promise omitted in
the declaration was too vague to be legally enforced, and
did not amount to a promise in point of law (¢).

If any one substantive part of a warranty be proved not
to be true, there is a breach on which an action ma
be maintained, and it is sufficient that the plaintiff set
out all the substantive and material parts of the contract,
the breach of which he complains of, the parts omitted
not qualifying in any manner the sense of those parts
set out upon which the breaches are assigned. As where
the plaintiff declared that in consideration of his re-
delivery to the defendant of an unsound horse, the defen-
dant promised to deliver to him another horse in lieu,
which should be worth 80/7. and be a young horse, and
then alleged a breach in both respects, it was held sutfi-
cient, though it was proved that the defendant had also
promised that the horse was sound and had never been in
harness (7).

And where there was a private sale of a mare at a
repository, and a warranty of soundness wag given, but
there was a notice of the rules of sale, by which no
warranty was to remain in force after twelve o’clock the
following day, the Court of Exchequer held it sufiicient to
declare on the warranty alone without the condition annexed
to it. However, Mr. Baron Parke said, “If the matter
relating to the notice had been by way of proviso upon the
warranty, it might perhaps have been necessary to state
it in the declaration, but upon that point I give no
opinion ” (7).

Where the consideration is evecutory, it is necessary for
the plaintiff to prove the performance of the consideration
on his part, that is to say, the purchase, in order to show
that he possesses a right of action (y). And as the price
has usually been paid when an action is brought on a
breach of warranty, the payment, if made, will be included
in an averment of performance of conditions precedent (s),
but payment is not essential to support the action.

If the false warranty or misrepresentation be misstated,

(t) Guthing v. Lynn, 2 B. & Ad. 728. ;
232; andsee Sardy v. Wilkin, 1D. & (y) See Bul. N. P. 146; and Ring

L. 281. v. Roxbrough, 2 Tyr. 468; 8. @., 2
(u) Miles v. Sheward, 8 East,7; OC, & J. 418; and 1 Chit. Pleading,
Clarke v. Gray, 6 East, 568. 6th ed. 296.

(x) Smart vy. Hyde, 8 M. & W. (2) See Order XIX. r. 14.

173

Statement of
the promise or
warranty.

Condition
annexed to the
promise or
warranty.

The purchase
and the pay-
ment.

Statement of
the false
174

warranty or
fraudulent
representa-
tion.

Statement ot
the breach.

Statement of
the damage.

PLEADING, EVIDENCE AND DAMAGES.

and the variance be material to the merits of the case,
it may be that the judge at the trial will refuse to amend
on the ground that the defendant has been misled or
taken by surprise. Where an action on the case was brought
against a third party for a misrepresentation on the sale
of a horse, the declaration stated that the defendant war-
ranted the horse to be “sound and a good worker,” and it
appeared in evidence that he warranted the horse “sound
in the wind,” an objection was taken that the warranty
and misrepresentation alleged in the declaration were not
proved ; but Mr. Baron Alderson said, “I think the declara-
tion is substantially proved, and therefore I shall direct
the record to be amended under the recent statute (2).
The variance relied upon by the defendant is not material
to the merits. The merits are, whether or no the defen-
dant made a fraudulent misrepresentation. It is proved
that he did; and the terms of the misrepresentation are
not quite accurately stated in the declaration ; it is clear that
the defendant cannot have been misled by the statement.
If he had, I would not amend. But he comes here to de-
fend himself from the charge of having made a fraudulent
misrepresentation on the occasion of the sale, and whether
he represented the horse to be wholly sound, or merely
sound in the wind, makes no difference to the merits.”
After this amendment a verdict was found for the
plaintiff (a).

A breach must always be stated in the statement of
claim, so that the cause of complaint may appear ()). If
the contract be in the disjunctive, the breach ought to be
assigned that the defendant did not do one act or other ;
as on a promise to deliver a horse by a particular day or
pay a sum of money (¢). It is a rule in pleading that
the breach may in general be assigned in the negative of
the words of the contract ; and therefore it is not necessary
that the particular description of unsoundness should be
stated (d).

In order to recover special damages it is necessary that
they be explicitly stated in the statement of claim, so that

(2) 8 & 4 Will. 4, c. 42,8. 28. (c) Com. Dig. Pleader, C.; Wright
See now Order XXVIII. 1. 12, of — v. Johnson, 1 Sid. 440, 447; Aleberry
R. 8. C., 1883. v. Walby, 1 Stra. 231.

(a) Mash vy. Densham, 1 M. & 4 Com. Dig. Pleader, OC. 45;
Rob. 442. and see 1 Chit. Pleading, 6th ed.

(2) Briekhead v. Archbishop of 172.
York, Hob. 198, 238.
PLEADING AND EVIDENCE FOR THE PLAINTIFF.

the defendant may be prepared to dispute the facts. But
damages which necessarily, and by implication of law, ensue
from the non-performance of the contract, need not be
expressly detailed, and are recoverable under the common
conclusion of the statement of claim (c).

Where the plaintiff brings an action for the price of his
horse as goods bargained and sold, he must be prepared to
prove such a contract of a sale (7), made by him to the
defendant and completed, as was sufficient in law to vest
the property in the defendant. For instance, where the
price is 107. or upwards, the plaintiff must prove that some
requisite of the 4th section of the Sale of Goods Act, 1898,
as to which see ante, p. 5, has been complied with (g).
And it will be necessary to show that a specific price was
agreed upon (/) as part of the contract.

Where the plaintiff brings an action for not accepting
the horse he has sold to the defendant, and a plea travers-
ing the contract or agreement in the statement of claim
is pleaded, the plaintiff must prove the contract, that is,
the alleged consideration and the promise (i). And if the
defendant contest it in his pleading, the plaintiff must show
either a tender (k),as the case may be, or that during a
reasonable time he was ready and willing to deliver it (2).

The meaning of readiness and willingness is, that the non-
completion of the contract was not the fault of the plaintiff,
and that he was disposed and able to complete it, if it had
not been renounced by the defendant (1).

Where the plaintiff has otherwise than at the buyer’s
request delayed delivery beyond the proper time, he cannot
enforce acceptance, unless the defendant has entered into
a new binding contract (1).

Where a horse is bought, and an action is brought for
not delivering him, a plea traversing the contract or agree-
ment alleged in the statement of claim will put the plaintiff
to prove the contract, namely, the alleged consideration and
promise; and if the defendant contest it in his pleading,

(e) See Boorman v. Nash, 9 B. & (:) Beal v. White, 12 A. & E.
C. 152; and Chit. Contr., 12th ed. 670.
854; Bullen and Leake’s Pleading, (&) Proof of Tender, post.
4th ed. 19; and Damages, post. (1) Granger v. Dacre, 12 M.& W.
(f) Requires no stamp. arson 431; Tempest v. Kilner, 2 C. B. 308.
vy. Short, 2 Bing. N.C. 118; S.C, (m) Cort v. Ambergate Railway

2 Scott, 243. Company, 20 L. J., Q. B. 465; Baker
(g) Elliott v. Pybus, 10 Bing.512,; — v. Firminger, 28 L. J., Ex. 130.
Rohde v. Thwaites, 6 B. & C. 388. (n) Plevins v. Downing, 1C. P. D.

(h) Simmons v. Swift, 5 B.& C. 220; 45 L.3.,C. P. 695; 35 L. T.,
857. N.S. 263.

Proof in goods
bargained and

sold.

Proof in an
action tor not
accepting.

Meaning of
readiness and
willingness.

Proof in an
action for not
delivering.
176

Proof in goods
sold and
delivered.

Proof in
money had
and received.

Proof of an
account stated.

PLEADING, EVIDENCE AND DAMAGES,

the plaintiff must prove that he was ready and willing to
accept and pay for it. But where there is a traverse of
readiness, if nothing remain for the plaintiff to do, it hes on
the defendant to disprove, rather than on the plaintiff to
prove, the readiness and willingness to deliver (0). But it
will not be necessary to prove a tender of the money (/).
And it is sufficient evidence that the plaintiff was ready and
willing, if within a reasonable time the horse is demanded
by him (q), vr his servant ().

Where the plaintiff after delivering the horse brings an
action for his price, he must be prepared to prove, if denied,
Ist, the sale, of which the delivery of the horse to the
defendant and an acceptance by him will be sufficient
prinui facie evidence (r); 2nd, the delivery either to the
defendant or his agent, or something which has been done
cquivalent to a delivery (s); and 3rd, the price agreed upon
for the horse ; but if the price forms no part of the contract,
or if the contract is merely to be implied from the delivery
to and acceptance by the defendant, the plaintiff must be
prepared to show the real and reasonable radwe of the horse
by persons of competent experience.

Where the plaintiff after a breach of warranty sues for
repayment of the purchase-money as money had and received,
he may be compelled by a proper defence to prove the
receipt of the money by the defendant, and his own title to
recover it as received for him (¢). He must, therefore,
prove the consideration and the performance of it on his part,
namely, the payment of a particular price (wu); also the
warranty, the breach of warranty, and either an actual
rescission of the contract or a power to rescind, and a conse-
quent tender of the horse.

To support a claim for money found to be due on an
account stated, 1 must appear that, at the time of the
accounting, which must have been before action brought, a
demand existed between the parties respecting which an

(0) Rawson v. Johnson, 1 Kast,
203; 6 R. R. 252; Waterhouse v.
Skinner, 2 B. & P. 447.

(p) Wilkes. thinson, 1 Marsh.
412; Levy v. Lord Herbert, 7 Taunt.
318; Tempest v. Kilner, 2C. B. 308.

(q) Squire v. Hunt, 3 Price, 68.

(vr) Bennett vy. Henderson, 2 Stark.
N. P. C. 550; and see Smith v.
holt, 9 C. & P. 696, and Roscoe,
N. P. 16th ed. 528.

(s) Lee v. Shore, 1 B. & C. 94;
Smith v. Chance, 2 B. & A. 755;
21 R. R.485. See also Bartholomew
v. Markwick, 33 L. J., C. P. 145,
ee Webb v. Fairmaner, 3M, & W.
473.

(t) Roscoe, N. P. 16th ed. 575.

(u) Harvey v. Archbold, 3 B.& C.
626; Bernasconi vy. Anderson, M. &
M. 183; Leeson v. Smith, 4N. &M.
304.
PLEADING AND EVIDENCE FOR THE PLAINTIFF.

account was stated, that a balance was then struck and
agreed upon, and that the defendant then expressly ad-
mitted that a certain sum was then due from him to the
plaintiff (x).

Where an action is brought on a breach of warranty, and
the warranty is denied, the plaintiff must prove the fact of
the sale and warranty having been given. If the breach is
traversed the onus les upon him to prove the unsowndness
or vice, or whatever is alleged as the subject-matter of the
breach (y). And of course he must in all cases prove
damage whether general or special.

‘Where there is evidence of fraud, it should be alleged in
addition to a breach of warranty, where it is doubtful
whether a warranty can be proved (z). For if a statement
of claim discloses a state of facts, upon which an action may
be maintained without fraud, fraud need not be proved,
though it be alleged; and the plaintiff may recover upon
the facts disclosed, though fraud be alleged and dis-
proved (a). But where the plaintiff relies on fraud alone
and does not succeed, he cannot pick out facts which would
otherwise have entitled him to relief apart from the
fraud (6).

Where no warranty exists in the contract, but the con-
tract is induced by false representation, known by the seller
to be false, the action is grounded on the fraud, and should
be so framed (c); for the knowledge of the defendant is in
such case essential to the cause of action (d).

Where an action is brought for fraudulent representation
on the sale of a horse, the plaintiff should be prepared
to prove the wrongful act alleged to have been com-
mitted by the defendant, namely, the sale by means of
the fraudulent representation (e) ; and it is essential to show
that there was a sale and also a misrepresentation (/) ;
and he must give proof of damage whether general or
special (9).

(x) See Chit. Contr. 12th ed.109, P. CO. 572; Noad v. Murrow, 40
and the authorities there cited. L. T., N. 8. 100.

(y) Osbarn v. Thompson, 9 C.& P. (c) Ormrod v. Huth, 9 C. & P.
337; 1 Tayl. Evid. 337, 3837.

(2) Bullen & Leake’s Pleadings, (d) Pasley v. Freeman, 2 Sm.
4th ed. 428. L. C. 9th ed. 74.

(a) Swinfen v. Lord Chelmsford, 5 (e) Per Cresswell, J., Mummery v.
H. & N. 893,921. Per Parke, B., Pal, 1 0. B. 327.
Thom v. Bigland, 8 Ex. 725. (f) Per Erle, J., Ibid.

(b) Hudson v. Lombard, L. R., 1 (g) Per Bramwell, B., Eastwood v.
H. L. 324; London Chartered Bank Bain, 28 L. J., Ex. 74.
of Australia vy. Lempriere, L. R., 4

Oo. N

177

Proof in an
action for
breach of
warranty.

Where it is
doubtful
whether war-
ranty is prove-
able.

Proof in an
action for
fraudulent
representa-
tion.
178

Proof of the
bargain and
sale.

Proof of the
consideration,

Proot of
payment of
the price.

Appropria-
tion of money
tendered.

PLEADING, EVIDENCE AND DAMAGES.

A sale may in all cases be implied prima facie from
evidence of a delivery to, and an acceptance by, the pur-
chaser (2). We have seen in Chapter I., what is sufficient
evidence of a contract for sale, either where the value is
under 10/.; or the agreement is not to be performed
within a year ; or the value is 10/. or upwards, within the
4th section of the Sale of Goods Act, 1898. Where
there is an agreement in writing, it should be put in and
proved, and it is not necessary that it should be stamped (2).
Where, however, the bargain and sale has been made
by word of mouth, the plaintiff (Z), or some witness of
the transaction must be called.

Where the consideration is set out in the statement of
claim as executory, it will in point of fact depend wpon the
same proof as the contract for sale. When it is executed,
the plaintiff must show that it took place before the con-
tract, and that it arose at the defendant’s request (7). In
the case of a sale he must prove payment of the price ;
but where the consideration is another horse, or other
goods, a delivery and acceptance must be proved. Where,
however, the transaction 1s_substantia/ly a sale, the plaintiff
may prove that the defendant took another horse in part
payment (72).

The payment of the price is usually proved by producing
the receipt, which of course must bear a stamp where the
sum is 2/. or upward (7); and if no receipt was given,
or it was unstamped or lost, the plaintiff, or some person
who witnessed the transaction, must be put into the box (0).

Where a claim consists of several items, the party
making the tender has a right of appropriation; but if he
omits to make any appropriation, the mght to appropriate
is transferred to the other party (p).

The plaintiff's horse, warranted quiet in harness, was
sold for 162. at Aldridge’s repository. It was afterwards
returned on the ground that it did not answer its war-
ranty, and, on being tried in a break, was found not to be
quiet in harness. By the printed regulations of the reposi-
tory the purchase-money for any horse, carriage, &e., sold
there was not to be paid over to the vendor until four days

(h) Bennett v. Henderson, 2 Stark. 48,

550; and see Smith v. Rolt, 9 C. & (m) Hands v. Burton, 9 East, 349.
P. 696. (x) 33 & 34 Vict. ¢. 97, s. 120.
(i) Shrine vy. Elmore, 2 Camp. (0) See Rambert y. Cohen, 4 Esp.
407; 11 RL R. 754. 213; 6 R. R. 854.
(hk) 14 & 15 Viet. ¢. 99, . 2. (») See per Wilde, O.3., Harding-
(2) Bing v. Seavs, 2 Cr. ML& R. ham. Allen, 5 C. B. 197. a
PLEADING AND EVIDENCE FOR THE PLAINTIFF,

after the sale. And he was also to pay 10s. as the
expense of trial, when a horse was found not to answer
his warranty.

After the trial of the horse, the plaintiff called at the
repository and demanded an account of his expenses, when

he received the following :— go Lge ay,
1847. July 31. Bay geldingbait. . . .0 1 6
Auction et. te ee OBE 20
duly OL) 4 welding; three a 010 6

Aug. 4 y gelding, three days.

Aug. 3 To cash price for trial of
bay gelding in harness . 0 10 0

£1 7 0

The plaintiff, objecting that the charge was exorbitant,
laid down 19s. 6d. on the desk in the defendant’s office
and demanded his horse. The defendant’s clerk told him
he could not have it unless he complied with the rules and
paid the 1/. 7s. The plaintiff then went away, leaving the
19s. 6d. on the desk.

The plaintiff brought an action of debt for money had and
received with a count in detinue for the horse. It was held
by the Court of Common Pleas, that as the horse was sold
subject to certain conditions, the sum received by the
defendant on the sale was not money had and received to the
use of the plaintiff, until those conditions had been com-
plied with, and the time for returning the horse had
elapsed. Also that the evidence did not support a tender,
inasmuch as there was no ,specific appropriation of any
part of the 19s. 6d. to the 10s. claimed in respect of the
trial of the horse (q).

Where the promise or warranty has been made by word
of mouth, the plaintiff or some party who heard it given
must be called to prove it. Where the promise or war-
ranty is to be gathered from letters which passed between
the parties, or was formally made in writing, and this in
the case of a warranty is usually contained in the same
instrument as the receipt, they should be put in and read.

The buyer may give evidence of a warranty, although
in a note of the sale and receipt for the money, given by
the seller after the conclusion ot a parol contract, there be
contained no notice of any warranty. Thus the defendant

(q) Hardingham vy. Allen, 5 C. B. 796.

179

Proof of the
promise or
warranty.

A warranty
not contained
in the receipt.
180

Warranty in
a receipt not
always con-

clusive.

Written
warranty
requires no
agreement
stamp.

PLEADING, EVIDENCE AND DAMAGES.

sold his horse at Aldridge’s repository, and said at the time
of sale that if he did not work well, and go quietly in
harness, the plaintiff was to send him back, and he should
have his money returned. The plaintiff bought him and
received the following memorandum :—

“ Bought of G. Pink a horse for the sum of 77. 2s. 6d.
G. Prnx.”

The horse when put into harness was found to be unruly
and vicious, and was accordingly returned to the defendant.
The price was demanded back, and on its being refused an
action was brought to recover it. It was held by the
Court of Exchequer, that parol evidence might notwith-
standing be given of the warranty (s).

But a warranty contained in a receipt is not always
conclusive evidence that a warranty has been given. For
where some hours after bargain the defendant sent his
coachman to pay the plaintiff the money, and the coach-
man drew out the following receipt, which was signed by
the plaintiff, an illiterate man, “Received 10/. for a colt
warranted sound:”’ it was held to have been properly left
to the jury to find whether the warranty of the colt
formed any part of the bargam, or was inserted in the
receipt without authority, by an after-thought of the defen-
dant’s servant (¢).

It is not necessary that a written warranty should have
an agreement stamp. This was so decided in the following
case, where the plaintiff gave in evidence a written instru-
ment signed by the defendant, which had a receipt stamp,
and contained a receipt for the price of the horse, with the
words subjomed, ‘‘ warranted sound.” It was objected
that it could not be read in evidence for the purpose of
proving the warranty without an agreement stamp. But
on the authority of Mr. Justice Lawrence, in Browne v.
Frye (u), Lord Ellenborough held that such a receipt might
be received to prove the warranty, as well as the payment of
the price of a horse, with a receipt stamp only (x); and a
warranty comes within the exception in the schedule
of 33 & 34 Vict. c. 97 (the Stamp Act, 1870), as it is an
agreement relating to the sale of goods, wares, and
merchandizes.

(s) dilen v. Pink, 4 M.&W.140. — v. Elmore, 2 Camp. 407; 11 R. R.
(t) Fairmaner v. Budd, 7 Bing. 784.

575. ao: (x) Skrine v. Elmore, 2 Camp.
(u) Brownev. Frye, cited in Skrine 407; 11 R. R. 754.
PLEADING AND EVIDENCE FOR THE PLAINTIFF.

Where a servant employed to sell and receive the price
has given the warranty, it is enough to prove that it was
given by him, without calling him or showing that he had
any special authority for that purpose (y).

But the warranty of a person merely entrusted to deliver
a horse, is not prima facie binding on the principal, but an
express authority must be proved (z). So also where an
agent makes an alteration in a warranty given by his
principal, a special or general authority must be shown (a).

Where a power to rescind is one of the terms of a verbal
contract for a horse, some witness to the transaction must
be called to prove it (6). Where, however, there is a
written contract, and such power appears as one of the
terms, it is proved by putting in the document; but if it do
not so appear, or if 1t were given in a subsequent conversa-
tion, it is inoperative, and the original contract as proved
still remains open (¢).

We have seen in the seventh chapter what constitutes a
fraudulent representation, so as to support an action for
deceit. And it may be laid down as a rule, with regard to
the proof of the scienter or fraud, that where a representa-
tion 1s talse to the knowledge of the party making it, this is
in general conclusive evidence of fraud (d).

Where the breach of warranty (e) 1s wnsoundness, the
plaintiff must prove either an actual existence of wnsoundness
at the time of sale, or that from the appearance of the
horse afterwards he must have been unsound when sold.
This, however, must be satisfactorily proved, because a mere
suspicion that the horse was then wnsouwnd is not sufficient (/').
Where the breach of warranty is vice, the plaintiff must
prove the existence at the time of sale of such a bad habit
as in the eye of the law constitutes a vice (g). And where
a horse is warranted fit for some particular purpose, he
must be proved to have been unfit for it in ordinary
hands (A).

It is not necessary that the plaintiff should inform the
defendant of the nature of the wnsoundness, and he may

(y) Alexander v. Gibson, 3 Camp. 664—Erx. Ch.

555. (ec) See Breach of Warranty, ante,
(2) Woodin v. Burford, 20.&M. Chap. VIII.

891; 8. C., 4 Tyrw. 264. (f) Eaves v. Dixon, 2 Taunt. 343.
(a) Strode v. Dyson, 1 Smith, 400. (g) Scholefield v. Robb, 2 M. &
(6) As to unfitness, see Breach of Rob. 210. ;

Warranty, ante, Chap. VIII. (h) Geddes v. Pennington, 5 Dow,

(c) Payne v. Whale, 7 East, 274. 164.
(d) Ormrod v. Huth, 14 M. & W.

181

Where au-
thority to
warrant need
not be
proved.

Where
authority to
warrant must
be proved.

Proof of a
power to
rescind.

Proof of a
traudulent
vepresenta-
tion.

Proof of the
breach of
warranty.

Notice of the
nature of the
unsoundness.
182

Evidence as
to unsound-
ness.

Matter of
fact alone.

Either fact
or veterinary
opinion.

Both fact and
veterinary
opinion.

Veterinary
opinion alone.

Evidence as
to vice.

Evidence as to
unfitness.

PLEADING, EVIDENCE AND DAMAGES.

refuse to do so if applied to before the trial; and the Court
of Common Pleas held that if the defendant wishes to
ascertain the nature of the unsounduess, he should take
out a summons for that purpose (2).

As there are a variety of particular causes of wnsound-
ness (k), the proof of it will vary according to the circum-
stances of the case.

There are some cases which merely depend upon evi-
dence as to a certain fact ; for instance, a horse after sale is
discovered to be lame from a curb (/), and a person giving
his evidence on the part of the plaintiff, must actually have
seen the curb, either before or at the time of sale.

Other cases may be proved either by evidence as to a
certain fact, or by veterinary opinion. As where the buyer
discovers a spavin (#2) after sale, he must either prove its
existence before or at the time of sale by some one who
had then actually seen it, or he must produce veterinary
testimony to show that from its present appearance it must
have then existed.

Other cases, again, may be compounded both of fact and
veterinary opinion; as where a horse has a splint (x) and is
lame, the question is whether the present lameness (0)
proceeds from the splint; and if it does, whether the splint
actually existed or must have existed before or at the time
of sale.

Or a pure question of veterinary opinion may arise, as
where there is a dispute whether a horse is spavined () or
not; or where the natural appearance of a horse’s hock
is altered, and it is doubtful whether it is merely a capped
hock (g), or a material alteration in the structure of the
hock joint.

The proof of an alleged vice (r) may depend upon evi-
dence of the fact of its having existed before or at the time
of sale; or upon proof of the existence of a certain habit
before or at that time, and then upon veterinary opinion as
to the effect of it.

The unfitness (s) for the purpose for which the horse was
bought must be clearly proved; as, for instance, where a

(i) Atterbury v. Fairmanner, 8 (») Spavin, ante, p. 94.

Moore, 33. q) Capped Hocks, ante, p. 71.
an ne Papnneaees and Vice, ) a Unsoundaess oe Vice,
i Lis ante, Chap. IV.
2) Curb, ante, Dp. Ths (s) Geddes v. Pennington, 5 Dow,
m) Spavin, ante, p. 94. 164. See Buckingham v. Reeve, ante,
n) Splint, ante, p. 94. p. 117.

(0) Lameness, ante, p. 83.
PLEADING AND EVIDENCE FOR THE PLAINTIFF, 183
horse has been warranted to be a “thorough-broke gig
horse,” the jury must be satisfied that a person of ordinary
skill cannot safely drive him (s).

To prove a rescission, the plaintiff must either prove that
the defendant accepted the horse when tendered, or he must
show a rescission by mutual agreement.

The plaintiff may prove a tender by showing that he
sent the horse back to the defendant, who refused to accept
it (¢); or that he sent the horse to divery, and informed
the defendant that he had done so (vw).

Proof of
rescission.

Proof of
tender.

Pleading and Evidence for the Defendant.

Defence for
detention of
goods.

The ordinary evidence of detention is that the defendant
refused to deliver the goods when demanded (x). It is no
defence to show that the goods were not in his possession
when demanded if he had improperly parted with the
possession (y), as where he had sold them, or lost them by
carelessness (8).

Where goods have been deposited or pledged with the
defendant as part of an illegal or immoral agreement, the
maxim “In pari delicto potior est conditio defendentis ”
applies, and the plaintiff cannot recover them (a).

In an action for goods bargained and sold the defendant,
provided that he plead them specially, may rely on any of
the following facts, viz., that the defendant never bought a
horse of the plaintiff at all, or that the sale was invalid
under the Statute of Frauds (4), or s. 4 of the Sale of Goods
Act, 1893: or where he did not see the horse before pur-
chase he may show that it does not correspond with its
description (c); or where it has been ordered for a parti-
cular purpose, for istance, to run in a carriage, he may
show that it was wnfit for that purpose (d) ; or that it was
not the horse which he bargained to purchase, though of

Detence for
goods bar-
gained and
sold and for
not accepting.

(s) Geddes v. Pennington, 5 Dow,  C. P. 168.
164. See Buckingham v. Reeve, (a) Taylor v. Chester, L. R., 4 Q.
ante, p. 117. B. 309; 88 L. J., Q. B. 225.

(t) See Towers v. Barrett, 1 T. R. (6) Johnson v. Dodgson, 2 M. &
138. W. 653; Elliott v. Thomas, 3 ibid.

(u) Chesterman v. Lamb, 2.A.&E. ieee Buttermere v. Hayes, 5 ibid.
129 456.

(2) Jones v. Dowle, 9 M.& W.
19.

(y) Ibid.

(2) Reeve v. Palmer, 28 L. J.,

(c) See Street v. Blay, 2 B. & Ad.
456 ; Parsons v. Seaton, 4 C. B. 905.

(d) Chanter v. Hopkins, 4 M. &
W. 406.
184

Defence in
action for not
delivering.

Where evi-
dence of the
usage of trade
is not admis-
sible.

Defence for
goods sold
and delivered.

Defence to
action on a
bill for the
price.

PLEADING, EVIDENCE AND DAMAGES.

the same name (e), or that the contract was made without
the proper formalities (/’).

In an action for not delivering a horse, the defendant
may show that he did not sed/ a horse to the plaintiff at all,
or that the sale was informal under the Statute of Frauds (g).
And where he contests it in his pleading, he may show that
the plaintiff was not ready and willing to accept and receive
it and pay the price (#).. And where no particular time
has been specified for delivery, he may show that the
plaintiff never made any demand (i).

Where there is no ambiguity in the language of a con-
tract, evidence is not admissible to show that, by the usage
of the particular trade, persons selling under such contracts
are not bound to deliver the goods without payment (A).

Where an action is brought for the price of a horse as
goods sold and delivered, the defendant, by proper allega-
tions in his statement of defence, may dispute the sq/e and
delivery in point of fact. Therefore he may show that the
sale was on credit which had not expired when the action
was brought (7); that no absolute sa/e took place; that
there was no delivery at all(m); or that the delivery was
for the purpose of a reasonable ¢ria/ and that the horse did
not suit (n); or he may show that the horse was returned
ou the ground of a breach of warranty, pursuant to an
agreement embodied in the contract. If his defence is
payment, of course it must be specially pleaded. So also
must want of title (0).

A breach of warranty cannot properly be pleaded by way
of defence, even pro tanto, to an action brought by the
seller upon a bill of exchange, or other negotiable security
given by the buyer for the price, except where there has
been a total failure of consideration, and the buyer has
repudiated the contract (p). But since the Judicature

(e) Raffles v. Wichethaus, 33L.3., L.J., Q. B. 390.
x. 160. (2) Broomfield v. Smith, 1 M. &
(f) Frend v. Dennett, 27 L. J.. W. 542; Webb v. Fairmanner, 3 M.

ie3]

C. P. 314; Bradley v. Bardsley, 14 & W. 473; and see Paul vy. Dod, 2
M. & W. 873. C. B. 800.
(g) Johnson v. Dodgson, 2 M. & (m) See Smith v. Rolt, 9 C. & P.
W. 653; Elliott v. Thomas, 3 ibid. 696.
170; Buttermere v. Hayes, 5 ibid. (n) Street v. Blay, 2 B. & Ad.
456. 456; Moss v. Sweet, 16 Q. B. 493.
(h) Rawson v. Johnson, 1 Kast, (0) Walker v. Mellor, 11 Q. B. 478.
203; 6 R. R. 262. (p) See Aoggridge v. Jones, 3
i) Bach v. Owen, 5 T. R. 410. Camp. 38; Anow y. Whailey,1 Esp.
k) Spartali v. Benecke, 10 C.B. 159; Wells v. Hopkins, 5 M. & W.

(
(
212; and see Humphrey v. Dale, 27 7; Byles on Bills, 15th ed. 157.

’
PLEADING AND EVIDENCE FOR THE DEFENDANT.

Acts a breach of warranty may be pleaded by way of
counterclaim in such an action (q).

However, it is only reasonable and just that when an
action is brought by the seller to recover the price or value
of a horse or any other goods, that the buyer should be at
liberty to show the breach of warranty in reduction of
damages (7).

And where a horse is bought warranted sound, and part
of the price is paid, and on turning out unsound, he is
found to be worth no more than that sum, it is a good
defence to an action for the residue. Thus in the following
case, it appeared that the plaintiff sold to the defendant a
horse, warranted sound, for twelve guineas, of which the
defendant had paid three. In fact, the horse was not
sound; and the defendant refusing to pay any more, an
action was brought to recover the residue of the horse’s
price. It was proved that the horse, at the time of sale to
the defendant, was not worth more than 12. 11s. 6d., and
the defendant afterwards sold it for 12. 10s. On these
facts Lord Kenyon held that the plaintiff could only recover
the value; and more having been paid to him by the
defendant, he was nonsuited (s).

Where an action is brought to recover back the price
paid for a horse, on failure of consideration, as money had
and received, the defendant may show that he never received
the price, or that he never warranted, or that there was no
breach of warranty, or that there was no rescission of the
contract, or that there was no power to rescind, or no tender
of the horse, or that being sold on trial, it was kept longer
than was necessary for such trial (¢).

The defendant in an action on a breach of warranty may
deny the warranty, or he may show that, at the time of
sale, the horse answered his warranty, whether it were
soundness, freedom from vice, fitness for a particular
purpose, é&e. (i).

The defendant may prove that the warranty was added
to the form of receipt unknown to him. Thus, in an action
brought on the warranty of a horse, the jury gave a verdict

(g) Order XIX. r. 3. (s) King v. Boston, cited 7 East,
(r) Poulton v. Lattimore,9 B. & 481.
C. 265; Mondel v. Steel, 8M. & W. (t) Street v. Blay, 2 B. & Ad.

858; 8. C.,1D.N. 8.8; Parsonsy. 456; and see Dawson v. Collis, 10
Sexton, 4 C. B. 908; 8. ¢.,16 L.J.,  C. B. 582.

C. P. 184. See also s. 53, sub-s. (1), (w) See evidence as to Unsound-
(a) of the Sale of Goods Act, 1893, ness, Vice and Unfitness, ante, p.
ante, p. 162. 182.

185

Evidence in
reduction of
damages.

Defence for
residue of the
price.

Defence for
money had
and received.

Defence to an
action on a
breach of
warranty.

Surreptitious
warranty.
186

Evidence in
reduction of
damages.

Detence to an
action for
fraudulent
representa-
tion.

Disputing the
warranty.

Disputing the
unsoundness,
&e.

PLEADING, EVIDENCE AND DAMAGES.

for the defendant, being of opinion that the warranty had
been surreptitiously introduced into the receipt by the
plaintiff Jefore it was signed by the defendant. And Mr.
Baron Platt said, that if the jury had been of opmion that
the words were added afterwards by the plaintiff, it would
have been his duty to have impounded the receipt for
ulterior purposes (2).

Where an action is brought on a breach of a warranty of
soundness, the subsequent recovery of the horse may be
proved in reduction of damages. Evidence may also be
given as to the slightness of the disease ; because, of course,
if the disease be slight, the wunsoundness is proportionably so,
and so also ought to be the damages; and if they were very
inconsiderable, the Judge might certify to deprive the
plaintiff of costs (y).

In an action for fraudulent representation on the sale of
a horse, the defendant may show that he zerer made any
representation on the sale; or that the representation was
honestly made and believed ly him at the time, though not
true in point of fact; or that the horse at the time of sale
corresponded with the representation. A statement merely
untrue is not sufficient evidence of fraud; there must be
wilful deceit with the object of inducing the plaintiff to act
upon it (2).

The defendant may show that he is not bound by the
warranty (a), as where it has been given by a person
inerely entrusted to deliver the horse (0), or by a servant
after sale (c). And where the defendant is neither a
horsedealer nor stablekeeper he may prove that the warranty
was given by an agent who was expressly forbid to
warrant (d), and that in consequence he had offered to take
hack the horse.

The defendant may show that the horse at the time of
sale was sound, or free from vice, or that the defect was
patent at the time of sale. And this will depend upon the
same sort of evidence as we have before described (¢). The
defendant may also show that the horse was not unfit for

() Bliss vy. Snow, before Mr. (4) Wooding v. Burford, 2 Cr. &
Baron Platt, Ex. N. P., May 12,  M. 391; 8. ¢., 4 Tyrw. 264.
1853. (c) Helyer v. Hawke, 5 Esp. 72.
(y) Kiddell v. Burnard, 9M. &W. ) Fenny. Harrison, 3 T.R. 761;
670. See Dawson vy. Collis, 10C.B. and Scotland (Bank) v. Watson, 1
632. Dow, 45; 14 R. R. 11.
(2) Ormrod vy. Huth, 14 M. & W. (e) Evidence as to Unsoundness,
651. ante, p. 182; Patent Defects, Chap.
(a) See Warranty, Chap. Y. Ve
PLEADING AND EVIDENCE FOR THE DEFENDANT.

the purpose for which he was bought; for instance, that he
has answered his warranty when used by persons of ordinary
skill (/).

But where a horse is proved to have had a disease at the
time of sale, his subsequent recovery is no defence to an
action on a breach of warranty, because where a horse is
warranted it is to be presumed he is fit for immediate

use (9).
Damages.

The damages which necessarily, and by implication of law,
ensue from the non-performance of the contract, or the com-
mission of the wrongful act, need not be expressly detailed,
and are recoverable under the common conclusion vf the
statement of claim ().

But damages which really took place, but do not neces-
sarily arise from the non-performance of the contract, or the
commission of the wrongful act, and are not implied by law,
must be expressly stated in the statement of claim; so that
the defendant may be prepared to dispute the facts.

The damages must be the legal and natural consequences
of the breach of contract, or of the injury which has been
inflicted (¢). Thus the costs of an action brought on a false
representation made by a third person of the profits of a
business, such third person not having been communicated
with before the action was brought, nor having represented
luimself as agent for the defendants in that action, are not
the legal and natural consequences of the breach of contract
or of the injury which has been inflicted (4). But it is
otherwise, when on the third person being communicated
with, before action was brought, he said that the plaintitts
might safely go on with their action, and also protessed to
have authority as agent for the representations which he

made (2).
This rule illustrates the maxim “In jure non remota
causa sed proxima spectatur”’—it is the proximate only and

not the remote consequences of an act that are to be re-

(f) Geddes v. Pennington, 5 Dow, 3; 9 R. R. 361; Smith v. Green, 1

164. C. P. D. 92; 45 L. J., C. P. 28;

(g) Coates v. Stephens, 2M. & Randall v. Newson, 2Q. B. D. 102;
ths

Rob. 15 46 L.J.,Q. B. 259; 36 L. T., N.S.
(h) See Boorman v. Nash,9B. & 164; 25 W. R. 313—C. A.
C. 152; Bullen & Leake’s Pleadings, (k) Richardson v. Dunn, 30L.J.,
4th ed. 19. C. P. 44. :
(i) See 1 Chit. Pleading, 6th ed. (2) Randell y. Trimen, 25 L. J.,

395; also Vicars v. Wilcocks, 8 Kast, C. P. 307.

187

Subsequent
recovery.

General
damages.

Special
damages.

Legal and
natural con-
sequences of
the breach of
contract.
188

Judge to
direct jury as
to rules of
damages.

Damages
arising from
special cir-
cumstances.

PLEADING, EVIDENCE AND DAMAGES.

garded. But as to the degree of remoteness it is said that
no distinct line can be drawn. In each case the Court
must say, as a matter of law, whether it is on the one side
or the other (m). In Hobbs v. London and South Western
Railway Co. (n), the plaintiffs took tickets to travel by a
midnight train from W.to H. The train did not go to H.,
and the plaintiffs were taken to E., which was a station
further from the plaintiffs’ house than H. was. The
plaintiffs walked home in the wet from E., there beg no
conveyance to be had. It was held that damages might be
given for the personal inconvenience and discomfort of
having so to walk, but not for illness brought on by the
dampness of the night. But where an innkeeper contracted
to provide stabling for twelve horses for the plaintiff during
a particular fair, and failed to do so, it was held that the
plaintiff could recover damages for injury caused to the
horses by exposure to the weather while he was engaged in
finding other stables for them (0).

The Judge should direct the jury as to any established
rules of measuring the damages applicable to the parti-
cular case, and the omission to do so is a ground for a new
trial (p).

In accordance with the rule that damages should be
estimated by the legal and natural consequences of the
breach of contract, or such as may be reasonably supposed
to have been in the contemplation of the parties at the time
they made the contract, as the probable result of the breach
of it, it was laid down in Hadley v. Baxendale (q), that
where a contract is made under special circumstances, which
are communicated by one of the contracting parties to the
other, the damages resulting from a breach of the contract,
which the parties would reasonably be supposed to have
contemplated, are the amount of injury, which would
ordinarily follow from such a breach of contract under the
special circumstances. ut if the special circumstances are
unknown to the party breaking the contract, he, at the
most, can only be held to have contemplated the amount of

(m) Hobbs v. London and South Ex. 179; Smeed v. Foord, 28 L. J.,
Western Rail. Co., L. R., 10 Q. B.  Q.B. 178.

117; 44 L. J., Q. B. 52; 32 L. T., (q) Hadley v. Baxendale, 23 L. J.,
N. 8. 352; 23 W. R. 520—per Ex. 179; Smeed v. Foord, 28 L. J.,
Blackburn, J. Q. B.178; Horne v. Midland Rail.
(x) Ubi supra. Co, L. BR. 8 C. P. 131; 42 L. J.,
(0) McMahon v. Field, 7Q.B.D. CC. P. 54; Hammond vy. Bussey, 20
591; 50 L. J., Ex. 552—C. A. Q. B.D. 79; 57 L. J., Q. B. 58.

(p) Hadley v. Baxendale, 23 L. J.,
DAMAGES.

injury which would arise generally, and in the great multi-
tude of cases, not affected by any special circumstances,
from such a breach of contract. Therefore, in a case where
a miller employed a carrier to deliver a broken shaft to an
engineer for repair, and the carrier was guilty of an unrea-
sonable delay in delivering it, the result of which was the
stoppage of the mill, and a consequent loss of profits, it was
held that such a loss of profits should not be taken into
consideration by the jury in estimating the damages, as the
carrier had not been informed that this would be the result
or the probable result of his negligence (q).

In the ordinary case of trover for a horse, the plaintiff
recovers the value of the horse, and not what the horse
might have earned besides (7). Special damages may be
recovered in trover if laid. Therefore, where in trover for
a horse it was laid as special damage, that the plaintiff
was obliged to hire other horses, it seems that the amount
of damages should be the value of the plaintiff’s horse
when taken, and the sum he paid for hire, deducting what
would have been the expense of keeping his own horse for
the time (s).

Where the property in goods has passed under the con-
tract, but the price has not been paid, and the vendor has
wrongfully converted and disposed of the goods so as to
preclude himself from delivering them, and recovering the
price, the vendee can only recover the difference between
the value of the goods and the contract price, and cannot
recover the full value by suing for the conversion of the
goods instead of for the breach of contract (4).

Whenever a party is liable for a breach of a contract,
either express or implied, the plaintiff is, in general,
entitled to nominal damages; although the action be framed
in ¢ort for such breach of contract, and no actual damage
be proved (w). But in the case of actions framed in tort
for breach of contract, the damages must be such as are
capable of being appreciated or estimated, whereas in such

L. R., 6 Q. B. 199; 40L.J.,Q. B.

(q) Hadley v. Baxendale, 23 L. J.,
121.

Ex. 179; Smeed v. Foord, 28 L. J.,

Q. B. 178; Horne v. Midland Rail. (t) Chinery v. Viall, 29 L. J., Ex.

Co., L. R., 8 C. P. 1381; 42 L. J.,
C. P. 54; Hammond v. Bussey, 20
Q. B. D. 79; 57 L. J., Q. B. 58.
(r) Per Jervis, C.J., Read v. Fair-
banks, 22 L. J., C. P. 206.
(s) Davis v. Oswell, 7 C. & P.
804; see further, France v. Gaudet,

180; Johnson v. Stear, 33 L. J., C. P.
130.

(wu) Rolin v. Steward, 23 L. J.,
C. P. 148; Marzetti v. Williams, 1
B. & Ad. 415; Chit. Contr. 12th ed.
848.

189

Damages for
wrongtul
conversion.

Damages i
tort.
190 PLEADING, EVIDENCE AND DAMAGES.

as are not founded on contract the jury may consider the
injury to the feelings and many other matters which have
no place in actions of contract (7).

In actions for In an action for the recovery of a fixed pecuniary de-

a sum certain. mand, which the defendant has not shown grounds for
reducing, by proving a partial failure of consideration, it 1s
obviously in general the duty of the jury to give the plaintiff
neither more nor less than the sum specified (y).

Interest. However, by 3 & 4 Will. 4, e. 42, s. 28, it is enacted,
“that upon all debs or sums certain, payable at a certain
time or otherwise, the jury on the trial of any issue, or
on any inquisition of damages, may, if they shall think fit,
allow interest to the creditor, at a rate not exceeding the
current rates 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 ata certain time; or
if payable otherwise, then from the time when demand of
payment shall have been made in rriting, 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: provided that interest be payable on all cases in
which it is now payable by law.”

ee 8&4 This provision does not extend to actions on contracts

sag tS #2, which are brought for the recovery of wvliquidated damages
resulting from the breach of such contracts, and ascertain-
able only by a jury, for instance, actions for not delivering
goods, &e. (2). Nor, as it appears, to any case in which
the claim is not for a sum certain as contradistinguished
from one the amount of which is merely capable of being
ascertained (a). Its effect is to leave it discretionary in
the jury to allow interest even in the cases specified ; in
other cases it is to be taken as limiting their discretion,
unless there be proof of a written instrument, whereby
the sum certain is made payable at a certain time (d), or
of a written demand of the money containing a notice that
interest from thenceforth will be claimed (c); and in all
those cases, in which it was payable by law at the time the
Act was passed, to make it compulsory on the jury to give
interest.

(x) Per Pollock, C.B., Hamlin vy. LL. J., Ch. 566.

Great Northern Rail. Co., 1 H.& N. (6) Taylor vy. Holt, 3 H. & C.
410. 462.
(y) Chit. Contr. 12th ed. 848. (c) Harper vy. Williams, 4 Q. B.

(s) Ibid. 661. 219; Mfowatty. Lord Londesborough,
(a) Hill v. South Staffordshire 3B. & B. 307.
Rad. Co., L. Ry, 18 Eq. 154; 43
DAMAGES.

Nothing in the Sale of Goods Act, 1893, is to affect
the right of the buyer or the seller to recover interest or
special damages in any case where by law interest or
special damages may be recoverable, or to recover
money paid where the consideration for the payment of it
has failed.

But in all actions which sound in damages, the jury seem
to have a discretionary power of giving what damages they
think proper; for though in contracts the very sum specified
and agreed upon is usually given, yet, if there be any
circumstances of hardship or extreme folly, though not
sufficient to invalidate the contract, the jury may consider
them, and proportion and mitigate the damages accordingly.
Thus, where an action was brought on a promise of 1,000/.
if the plaintiff should find the defendant’s owl; the Court
held, though the promise was proved, that the jury might
mitigate the damages (d). ;

Where an action was brought in special asswmpsit on an
agreement to pay for a horse a barley-corn a nail, doubling
it for every nail in the horse’s shoes; and there were
thirty-two nails, and this being doubled, every nail in a
geometrical progression, came to five hundred quarters of
barley; on the cause being tried before Mr. Justice Hyde,
at Hereford, the jury, under his direction, gave the real
value of the horse, 8/. as damages; and this contract seems
to have been held valid; for it appears by the report that
there was afterwards a motion to the Court in arrest of
judgment, for a small fault in the declaration, which was
overruled, and the plaintiff had judgment (e).

An action will lie for the performance of a contract under-
taken for a valuable consideration, though its performance
turns out to be impossible (unless it has been rendered
impossible by the act of the other party), for it is the result
of the ‘“ heedlessness of the contracting party, if he runs the
risk of undertaking to perform an impossibility, when he
might have provided against it by his contract” (7). But
where the law casts a duty on a man which, without fault
on his part, he is unable to perform, the law will excuse him
for non-performance (9).

The damages in an action for the price of a horse, as goods

(d) Bac. Abr. Damages (D), 602. Rawson, 27 L. J., C. P. 191.

(e) James v. Morgan, 1 Lev. 111; (9) Clark v. Glasgow Assurance
S. C., 1 Keb, 569; and Chit. Contr. (o., 1 Macq. H. of L. Cases, 668 ;
12th ed. 22. Inchbald v. Western Neilgherry Coffee

(f) Per Williams, J., Hale v. Co. 11 L. T., N.S. 345.

191

Sale of Goods
Act, 1893,
s. 54.

In actions
which sound
in damages.

A foolish
bargain.

An impossible
contract.

In goods
192

bargained
and sold.

In an action
for not ac-
cepting.

In an action
tor not de-
livering.

Nominal
damages.

PLEADING, EVIDENCE AND DAMAGES.

bargained and sold, will be the whole sum, and not merely
damages for not accepting and paying for it.

In an action for not accepting a horse ‘‘the measure of
damages is the estimated loss directly and naturally result-
ing, in the ordinary course of events, from the buyer’s
breach of contract’ (A).

Where there is an available market for the horse in
question, the measure of damages is primd fucie to be ascer-
tained by the difference between the contract price and the
market or current price at the time when he ought to have
been accepted, or, if no time was fixed for acceptance, then
at the time of the refusal to accept (7).

In an action for not delivering a horse according to a
contract, the measure of damages is the estimated loss
directly and naturally resulting in the ordinary course of
events, from the seller’s breach of contract (4). Where there
is an available market for the horse in question, the
measure of damages is primd facie to be ascertained by the
difference between the contract price of the horse at the
time he ought to have been delivered, or if no time was
fixed, then at the time of the refusal to deliver (7). And
this rule applies even though the seller in the ‘interim have
resold the horse, provided that the buyer did not assent to
rescind the contract (#2).

If the buyer, at the request of the seller, forbear to
enforce the contract at the time the goods ought to be
delivered, but afterwards do so, the measure of damages is
the difference between the contract price and the market
price when the buyer so enforces the contract, c.g., by
buying the goods in the market (7). Where there has
been a written contract, the vendee cannot enhance the
damages by oral proof that the contract price was higher
than the market price by reason of the shortness of the
time fixed by the contract for delivery (0).

Where there is no difference between the contract price

(h) Sale of Goods Act, 1893, s. 50,
sub-s. (2).
(i) Ibid., sub-s. (3). See also

per Tindal, C.J.; Vatpy v. Oakeley
16 Q. B. 941. -
(m) Leigh v. Paterson, 8 Taunt.

oO

Phillpotts v. Evans, 5 M. & W. 474 ;
Boorman v. Nash, 9 B. & CG. 145;
Josling v. Irvine, 6 H. & N. 512.

(x) Sale of Goods Act, 1893, s. 52,
sub-s. (2).

(2) Ibid., sub-s. (3). See also
Boorman v. Nash, 9 B. & C. 145;
Leigh vy. Paterson, 8 Taunt. 540;
Barrow v. Arnaud, 8 Q. B. 609:

40; S. C., 2 Moore, 588.

(2) Ogle v. Earl Vane, L. R., 2
Q. B. 275; Ex. Ch., L. R., 3 Q. B.
272. See Tyers v. Rosedale, $e. Iron
Co.. L. R., 8 Ex. 305; Ex. Ch.,
L.R., 10 Ex. 195; 42 L. J., Ex.
185; 29 L. T., N.S. 761.

(0) Brady v. Oastler,3 H. & C.
112; 33 L. J., Ex. 300.
DAMAGES. 193

and the market price, the damages are only nominal (p).
And where goods were paid for by bill, and after a breach of
contract by the vendor in not delivering the goods the bill
was dishonoured, the purchaser was held entitled to recover
only nominal damages (q).

In an action for the price as goods sold and delivered, the
damages will be the price or value of the horse.

Where an action for money had and received is brought
for the repayment of the price, and there is a claim for
horsemeat and stabling, the measure of damages is the
price paid for the horse ; and also the expense of heep from
the day of sale; as the contract must be taken to
have been rescinded from the day it was entered into (r).
And as to the recovery of interest on the price paid, see
3 & 4 Will. 4, ¢, 42, s. 28, by which statute a demand in
writing and notice of such claim is necessary (s).

The damages in the case of a breach of warranty must be
treated in the same way as an action on a contract (t).

The measure of damages for breach of warranty is the
estimated loss directly and naturally resulting, in the ordi-
nary course of events, from the breach of warranty («). In
the case of breach of warranty of quality such loss 1s primd
Jacie the difference between the value of the goods at the
time of delivery to the buyer and the value they would
have had if they had answered to the warranty (z).

Damages in
goods sold
and delivered.

In money
had and
received.

On breach of
warranty.

General rule.

Where the horse has been returned, and no special loss Where the
has accrued, the damages consist of the price paid (y). ne aks
Where the horse has not been returned the measure of Wisentlie
damages will be the difference between its value with the horse has
defect warranted against and the value it would have oh et
returned.

borne without the defect. It was formerly laid down that
the measure of damages would be the difference between
the contract price and that for which it would sell with
its defect (s). But the rule in England is now settled as
stated above, and the doctrine is the same in America (a).

(p) Valpy v. Oakeley, 16 Q. B.
941.

(9) Griffiths v. Perry, 28 L. J.,

. B. 204.

(r) Caswell vy. Coare, 1 Taunt.
566; King v. Price, 2 Chit. 416.

(s) See Interest, ante, p. 190.

(¢) Per Tindal, C.J., Watson v.
Denton, 7 C. & P. 90.

(a) Sale of Goods Act, 1893, s. 53,
sub-s. (2).

(x) Ibid., sub-s. (3).

oO.

See also

Randall v. Raper, EB. B. & E. 84;
27 L.J.,Q. B. 266; Loder v. Kehulé,
27 L. J., ©. P. 27; Jones v. Just,
L. B., 3 Q. B. 197.

(y) Caswell vy. Coare, 1 Taunt.
566; 11 R. R. 668; Heilbutt v.
Hickson, L. R., 7 C. P. 488; 41
L. J., C. P. 228.

(z) Caswell v. Coare, 1 Taunt. 566 ;
11 R. R. 668.

(a) See per Buller, J.. 1 T. R.
136: per Lord Eldon, C.J., Curtis

Oo
194

Where the
horse has
been ten-
dered.

Expense of
keep.

PLEADING, EVIDENCE AND DAMAGES.

Where the horse has been resold by the purchaser before
the breach of warranty has been discovered, the price
obtained at the second sale may be left to the jury as a
mode of estimating what the real value of the horse, if
perfect, would have been; but the difference between the
price and the purchase-money cannot be given as specific
damage on account of the loss of profit which might have
been made on it (0).

But after a breach of warranty, the buyer is entitled to
recover a reasonable sum of money for the expense of keep,
where before re-sale he has tendered the horse to the seller ;
and the buyer is entitled to keep the horse for such reason-
able time as is required to sell him to the best advantage (¢).
What length of time and sum of money is reasonable for
the keep is a question for the jury (d).

The whole subject of keep was fully considered in the
case of Chesterman v. Lamb (d), where an action of assumpsit
was brought on the warranty of a horse, and also for the
expense of his keep. It appeared at the trial that the
defendant sold and delivered the horse to the plaintiff on
the 28th of June. Early in July the horse was found to
be lame; and on the 10th, upon examination by a veteri-
nary surgeon, the complaint was found to be spavin (e). On
the 11th of July the plaintiff gave the defendant notice that
the horse was unsound, and that he should return him and
demand back the purchase-money ; and on the 21st the
plaintiff sent the horse to livery, and informed the defendant
that he had done so. On the 27th the action was com-
menced; and on the 16th of September, the plaintiff
(having informed the defendant of his intention to do so)
sold the horse by auction for twenty-three guineas. The
action was brought to recover the difference between that
sum and 40/., the price given by the plaintiff, and likewise
97. 17s. for the horse’s keep at livery till the second sale.

For the defendant it was insisted that the horse was not
unsound, and consequently that nothing was due on account
either of the price or the keep.

Mr. Justice Taunton, in leaving the case to the jury,

vy. Hannay,3 Esp. 82; Glare v. (b) Clare v. Maynard, 6 A. & E.

Maynard, 6 A. & E. 519; Cox v.
Walker, ibid. 528, u.; Jones v. Just,
L. R.,3Q. B. 197; 37 L. J., Q. B.
89; Loder v. Kekulé, 2 C. B., N.S.
128; 27L. J., OC. P. 27; Mayne ou
Damages, 4th ed. 191; Sedgwick
on Damages, 7th ed. 606.

519; Cox v. Walker, ibid. 523, n. ;
Mayne on Damages, 4th ed. 192.
(¢) ‘Kenzie v. Hancock, R. &
M. 436.
ae Chesterman vy. Lamb, 2A. & E.
20.
(e) Spavin, ante, p. 94.
DAMAGES.

said, ‘‘That in his opinion there had been a sufficient
tender of the horse back to the defendant; that if the
horse was unsound, it was the defendant’s duty to provide
for the charges of standing at livery; and therefore the
plaintiff, in that case, would be entitled to the 97. 17s.
claimed for keep.” The jury found a verdict for the
plaintiff for the whole sum demanded. A rule was
obtained to show cause why there should not be a new
trial, or why the verdict should not be reduced in respect
of the keep; the rule, however, was discharged.

And Lord Denman, C.J., said, “I can conceive no case
where a purchaser returns a horse, in which the seller may
not be lable for some keep. The law upon the subject is
thus laid down in Mr. Selwyn’s Law of Nisi Prius (/).
As soon as the unsoundness is discovered, the buyer should
immediately tender the horse to the seller; and, if he re-
fuses to take him back, sell the horse as soon as possible
for the best price that can be procured; for the purchaser
is entitled to recover for the keep of the horse for such time
only as would be required to resell the horse to the best
advantage.”’

“Whether the time of keeping be reasonable or not, is
a question for the jury. But here the defendant altogether
denied his liability. It is true that counsel would have
been under a disadvantage in resting the case on two
different grounds; but that consideration cannot vary the
course which must be pursued in trying a cause. If the
defendant’s counsel meant to rely upon the unreasonable-
ness of the time, he should have shown grounds for insist-
ing on that point, and taken the opinion of the jury upon
it’ (g).

In i following case, where an action of assuwmpsit was
brought on the warranty of a horse, it appeared that the
plaintiff had tendered back the horse to the defendant,
and on his refusal to receive it, had kept it nearly eight
weeks at livery at Reading, till Reading Fair, when it was
sold. The plaintiff sought to recover the difference between
the price which he had given for the horse and the sum for
which he was sold, and also the expense of his standing at
livery.

Mr. Justice Coleridge, in summing up, said to the jury,
‘With respect to the keep of the horse, I am of opinion

(f) Selwyn’s N. P. 12th ed. vol. 1, (g) Chesterman v. Lamb, 2 A. & E.
p- 656, tit. Deceit, I. 2. 129.

0 2

195

Seller liable
for reasonable
keep.

What is
reasonable.

Keeping the
horse till a
fair.
196

Expense con-

sequent on
the war-
ranty.

Expense in
selling.

PLEADING, EVIDENCE AND DAMAGES.

that if a person has bought a horse with a warranty, which
has been broken, and he tenders the horse to the seller, and
the seller refuse to receive it back, the buyer is entitled
to keep it a reasonable time till he can sell it, and for that
time he may, against the seller, recover the expense of
keeping it; but he must not keep it as long as he chooses.
All that he is allowed to do is to keep it for a reason-
able time till he can fairly sell it, and for that time he
ought to be allowed for keeping it. If it was a good
thing for the sale of the horse to keep it till Reading Farr,
you will find your verdict for the amount claimed ; but if
you think the horse ought to have been sold within a
week or a fortnight, or some other short time, you
will deduct so much of the claim as goes beyond the
time.” The jury gave the plaintiff a verdict for the whole
amount (/).

In the case of Cor v. Walker (i), where an action was
brought for a breach of the warranty of a horse sold as
sound, the special damage alleged in the declaration was
the plaintiff’s expense incurred by reason of the warranty,
and his loss of gains and profits in reselling the horse;
and the only plea was a denial of the unsoundness. It
appeared that the plaintiff had bought the horse of the
defendant for 1002, and had been offered 140/. for him,
but the horse, proving unsound, the plaintiff had been
obliged to give up the bargain, and sell him for 49/. 7s.
Lord Denman, C.J., directed the jury that the plaintiff was
entitled to recover the difference between the price at which
he was finally sold, and the actual calwe of the horse if he
had been sound at the time of such sale; and he left to
the consideration of the jury, as a measure of the value, the
price offered for the horse whilst in the plaintiff’s hands.
The jury found for the plaintiff 907. 18s. damages. A rule
nist was obtained for a new trial on the ground of mis-
direction, or for a reduction of damages. Cause was
shown in Easter Term, 1836, before Lord Denman, C.J.,
and Littledale, Patteson, and Coleridge, JJ. The Court
took time to consider, and the ease stood over for several
terms, but was at length settled.

And in another case, where the horse had been tendered
to the defendant and refused, Chief Justice Tindall in
charging the jury said, “You will give as damages the

(h) Ellis v. Chinnock, 7 C. & P. Denman, C.J., in Clare v. Maynard,
169. 6A. & E. 523.
(i) Cox v. Walker, cited per Lord
DAMAGES.

difference between the price paid and the real value of the
horse, and the damages for the expense which the plaintiff
was put to by the defendant selling him that which was
of no use to him, for a certain time, at least to the time
when he offered the horse to the defendant ”’ (x).

The increase in value consequent on the care and ex-
pense bestowed on a horse after purchase, and evidenced
by an advance of price on a resale, might probably be
recovered if the cause of such increase were properly laid
as special damage. Because, although the Court of
Queen’s Bench thought it uunecessary to give their opinion
in Clare v. Maynard (1), as that point did not there pro-
perly arise, yet Lord Denman, C.J., appeared to hold that
if it had arisen, he should have directed the jury as he
did in the case of Cor v. Walker, and then the measure of
damages would be the difference between the price ulti-
mately obtamed for him, and his actual value if he had
been sownd at the time of such last resale (m).

And where a horse had been bought in the country,
and brought up to London, and after it was discovered to
be unsound was tendered to the seller, and then sold by
auction, Lord Denman, C.J., told the jury that the measure
of damages was the difference between the value of the
horse, if sound (of which the price was only strong evi-
dence), and the swm it brought as unsound (2).

That the buyer could not recover the expenses of obtain-
ing a certificate of unsoundness from the veterinary college
or of counsel’s opinion, as they were no part of the neces-
sary expenses, but were merely for the plaintiff’s own com-
fort, and to convince him that he could bring an action in
safety (2).

But that he was entitled to be paid the expenses of
bringing the horse up to London, and of its keep (x).

A person who has bought a horse warranted sound, and
has had it returned to him after resale at a profit, cannot
in an action on the warranty recover damages for the “loss
of a good bargain” (0); and on this ground the Court of
Queen’s Bench gave their decision in Clare v. Maynard (p),
because the declaration there merely alleged that the plaintiff

(k) Watson v. Denton, 7 C. & P. (0) Flureau v. Thornhill, 2 W.
91. Bla. 1078; 1 Sug. Vend. & Purch.

(2) Clare v. Maynard, 6 A. & E. 14th ed. 237, and the cases there
523. cited.

(m) Cox v. Walker, cited ibid. (p) Clare v. Maynard, 6 A.& E.

(n) Clare v. Maynard, 7C.& P. 524
741.

197

Expenses in
advancing
the horse’s
value.

Horse ten-
dered and
then sold by
auction.

Expense of
veterinary
certificate and
counsel’s
opinion.

Travelling
expenses.

Loss of a
good bargain.
198

Reselling
with a war-
ranty.

Damages for
misrepresenta-
tion.

PLEADING, EVIDENCE AND DAMAGES,

bought the horse at so much, and resold him at so much,
without alleging the cause of the advance, or averring
that he had laid out any money on the horse in the mean-
time. And it was held, in that case, that although the
contract of sale at a profit had been actually completed
before the unsoundness was discovered, yet the plaintiff
could not recover as special damage the advance in value,
which, as stated in the declaration, was the mere loss of a
good bargain (7).

If the buyer of a horse with a warranty, relying thereon,
resells him with a warranty, and being sued thereon by his
vendee, offers the defence to the vendor, who gives no
directions as to the action, the plaintiff defending that
action is entitled to recover the costs of it from his vendor
as part of the damage occasioned by his breach of
warranty (7). He may also recover not only a sum fairly
and reasonably paid to the second vendee as compensation (s),
but also a sum in respect of damages, which he has agreed
to make good, although no amount has been fixed, nor any
sum actually paid, the mere liability to pay such costs
being sufficient to sustain the claim for special damage ().
But he cannot recover any such costs if, by a reasonable
examination, he could have discovered the breach of
warranty before sale (z).

Where there is a misrepresentation of the character or
condition of goods, the vendor is responsible for all injury
which is the direct and natural result of the purchaser’s
acting on the faith of his representation. Therefore, where
acattle dealer fraudulently represented a cow to be free
from infectious disease when he knew that it was not 80,
and the purchaser placed it with five others which caught
the disease and died, the latter was held entitled to recover
as damages, in an action for fraudulent misrepresentation,
the value of all the cows (x). And the same rule would be
apphed where there was no fraud, but the beast was war-
ranted free from disease, and both parties contemplated its
being placed with other stock (y).

(q) Clare v. Maynard, 6 A. & EB. (u) Wrightup v. Chamberlain, 7
524. Scott, 598.

(r) Lewis v. Peake, 7 Taunt. (t) Mullet y. Mason, L. R., 1 C.
153; 2 Marsh. 43; 17 R.R. 475; P. 569; 35 L. J.,C. P. 299; Mayne
and see Rolph v. Crouch, L. R., 3 on Damages, 4th ed. 197; Sherrod v.

Ex. 44 3 37 L. J., Ex. 8. Longdon, 21 Towa, 518.
(s) Dingle v. Hare, 7 C. B., N.S. (y) Smith v. Green, 1 C. P. D.
145. 92; 45 L. J., C. P. 28. And see

. (0 ae v. Roper, 27 L. J., Bradley v. Lea, 14 Allen, 20.
DAMAGES.

It is illegal to bring a glandered horse into a public
market or fair (s), but there is nothing illegal in a simple
sale ; therefore a person who sold a glandered horse with-
out a warranty and without misrepresentation was held
not responsible for disease communicated to other horses
of the purchaser’s in the stable to which he removed it (a).
But a breach of statutory duty may not constitute the
foundation for a private right of action. A statement that
the purchaser of a horse must take it “with all faults”
and that the vendor will give no warranty with it, and will
refuse all future claim for compensation (where the vendor
does nothing to conceal the defect), relieves the vendor
from all lability in respect of any defect in the horse
itself (b). If such a statement were followed by a decla-
ration of the vendor (who knew the reverse) that he knew
the animal to be free from objection, there might be ground
for an action of deceit (c). Thus where a statute prohibited
persons from sending animals infected with a contagious
disease to market, and inflicted penalties on any person so
sending them, the act of sending them, if known to be so
infected, was a public offence, but did not amount by
implication to a representation that they were sound, and
did not itself raise as between the vendor of the animals
and the purchaser of them any right of the purchaser to
claim damages in respect of an injury he had suffered in
consequence of their purchase (¢). But it seems that if
the defendant had sent tainted animals into the public
market-place, and the plaintiff’s animals, in that public
place, by contact or neighbourhood had been infected, and
the plaintiff suffered loss, that he might have recovered
damages for that loss (e).

(2) 57 & 58 Vict. c. 57, s. 22, (b) Ward vy. Hobbs, 4 App. Cas.
(xxxv., xxxvi.), Glanders or Farcy 13; 48 L.J., Q. B. 281; 40 L.T.,
Order, 1894, 9 (a). N.8. 73; 27 W. R. 114.

(a) Hill v. Balls,2 H. & N.299; (c) Ibid., per Lord Cairns, C.

27 L. J., Ex. 45, And see per (d) Ward vy. Hobbs, ante, note (0).
Willes, J., L. R., 1 C. P. 563. (e) Ibid., per Lord Cairns.

199
His business.

Definition of
an inn.

Derivation of
hostler.

Who is a
guest.

What an inn-
keeper under-
takes.

Tnnkeeper
compellable
to receive a
traveller.

CHAPTER X.

INNKEEPERS, VETERINARY SURGEONS, FARRIERS, HORSE-
BREAKERS, TRAINERS, ETC.

Innkeeper.

Wuew a horse is taken to an inn, the innkeeper has a
particular responsibility imposed upon him, in return for
which he has certain peculiar privileges.

An innkeeper is a person who makes it his business to
entertain travellers and passengers, and to provide lodging
and necessaries for them and their horses and attendants,
and it is no way material whether he have any sign before
his door (ca).

The true definition of an inn is, a house where the
traveller is furnished with every thing which he has occa-
sion for whilst on his way”? (6).

The word hostler is derived ab hostle; and the word
hospitator, which is used in the old writs for an innholder, is
derived ab hospitio; and hospes est quasi hospitium petens (c).

A guest is properly a lodger or stranger at an inn; and
the word “ guest’? is derived from the Saxon gest, which
had the same meaning as the French gist or gite, that is,
“a stage of rest in a journey,” “a lodging” (d¢). And
Lord Holt says, “It is the lodging of the man at the inn
that makes him guest”’ (e).

An innkeeper or hotel-keeper undertakes to receive and
entertain all travellers until his house is filled ; and an inn-
keeper by opening a common inn undertakes also to receive
and keep the horses of those who come to his inn (/).

It is said that an innkeeper may be compelled by the
constable of the town to receive and entertain a traveller as
his guest (9).

(a) Palm. 374; 2 Rol. Rep. 345. Hotel Co., 12 Q. B. D. 27; 538 L.J.,
(b) Per Bayley, J., Zhompson v. Q.B. 25; 49 L.T., N.S. 601; 32
Lacy, 3B. & Ald. 286 ; 22R.R.385. W.R.170; Medawar vy. Grand Hotel

(c) Calye’s case, 8 Coke, 32. Co., [1891] 2 Q. B. 11; 6OL. J.
(d) Westbrook v. Griffith, Mo. Q. B. 209; 64 L. T. 851.
876, 877; Saunders v. Plummer, (f) Jones vy. Osborn, 2 Chit. 484.
Orl. Bridg. 227. (g) 5 Edw. 4, 2b. Dalt. cap. 7;

(e) Smith v. Dearlove, 6 C. B. 1 Show. 268.
132, n. See also Strauss v. County
INNKEEPER.

If an innkeeper who has room in his house refuse to
receive a traveller, after a tender or an attempted tender of
a reasonable sum for his accommodation, he may be indicted
for it, and the indictment must state that the person refused
was a traveller (2).

And it is no defence for the innkeeper that the guest was
travelling on a Sunday, and at an hour of the night after
the inukeeper’s family had gone to bed; or that the guest
refused to tell his name and abode, as the innkeeper had no
right to insist upon knowing these particulars (/).

But although an innkeeper cannot refuse a person who
is sick, he is not bound to receive a person who comes to
the inn drunk, or behaves in an indecent or improper
manner (/).

An action lies to recover compensation for any injury in
consequence of such refusal; but, as it appears, not for the
mere refusal to receive the traveller or his horse (/).

An innkeeper, though licensed to let post-horses, is not
hable to an action for refusing to supply a chaise and horses
to enable his guest to pursue : his j journey, although they be
disengaged and a reasonable sum be tendered for them (m).

But although a traveiler is entitled to reasonable accom-
modation in an inn, he is not entitled to select a particular
apartment, or to insist on occupying a bedroom for the
purpose of sitting up all night, so long as the cnnkeeper is
willing and offers to furnish him with a proper room for
that purpose (7); nor is he entitled to compel an innkeeper
to furnish rooms in which to exhibit the wares of his guest,
for an innkeeper is not bound by law to find show-rooms
for his guests, but only convenient lodging-rooms and
lodging (0).

An innkeeper was formerly primdé facie liable to any
amount for loss not occasioned by the act of God or the
King’s enemies (p). But by the 26 & 27 Vict. c. 41, s. 1,
he is no longer liable to make good to a guest any loss to
goods or property brought to his inn, not being a horse or

(A) Fell v. Knight, 8 M. & W.
276; Rex vy. Ivens,7 C. & P. 219;

Rex v. Luellin, 12 Mod. 445.
(2) Rea v. Ivens, 7 C. & P. 2138.

(kK) Rex y. Luellin, 12 Mod. 446;
L. R., 2 Q.
J., M. C. 108;
N.S. 774; 25 W. R.

and see Reg. v. Rymer,
B. D. 136; 46 L.
35 L. T.,
415.

(2) Hawthorn v. Hammond, 1 C.
& K. 407; Lane v. Cotton, 1 Salk.

18; Collin’s case, Godb. 246; Palm.
2 Rol. Rep. 345; Newton vy.

374;
Trigg, 1 Show. 270.

m) Dicas v. Hides, 1 Stark. 247.
n) Fell v. Knight, 8 M. & W.

269.

(0) Burgess v. Clements, 4M. & 8.

306: 16 R. R. 473.

(») Per Bayley, J., Richmond v.

Smith, 8 B. & C. 9

201

May be in.
dicted for
refusing.

What held to
be no defence.

Sickness,
drunkenness,
&e.

Action for
compensa-
tion.

Not liable for
refusing to
supply post-
horses.

Traveller not
entitled to
select particu-
lar apart-
ments.

Liability of
innkeeper
limited by

26 & 27 Vict.
c. 41.
202

Salaried
manager not

liable as inn-

keeper.

Goods to
which his
liability
extends.

INNKEEPERS, VETERINARY SURGEONS, ETC.

other live animal, or any gear appertaining thereto, or any
carriage, to a greater amount than the sum of 30/., except
where the loss shall have been occasioned “through the
wilful act, default or neglect of the innkeeper, or any
servant in his employ,” or ‘where such goods or property
shall have been deposited expressly for safe custody” with
him: provided always, that m the case of such a deposit,
the innkeeper may require, as a condition of liability, “ that
such goods or property shall be deposited in a box or other
receptacle fastened and sealed by the person depositing the
same.” By section 3, the innkeeper must exhibit mm a
conspicuous part of the hall or entrance to his inn at least
one copy of the first section of this Act, in order to be
entitled to its benefit.

It has been held that “wilful” in section 1 of the
26 & 27 Vict. c. 41, must be read with “act” only, and
not also with “fault or neglect’ (y). A mere verbal error
in a copy of section 1 of the Act, exhibited for the purpose
of limiting an innkeeper’s liability, will not vitiate the
notice so as to make it ineffectual, provided the notice states
correctly the provisions of the Act; but the omission of a
material portion of the statute will render the notice
ineffectual to protect the innkeeper (r). A notice was
exhibited in an hotel, containing a copy of the first section
of the Act, correct in every particular, only that in the
exception the word “act”? was accidentally omitted. The
Court held that this was a material omission, and that the
notice was insuflicient to protect the innkeeper (s).

The salaried manager of an hotel belonging to a company
1s not an innkeeper, so as to be by law responsible for the
goods and property of the guests, although the usual licence
has been granted to him personally (¢).

An innkeeper is not absolved from responsibility for his
guest's goods by reason of the luggage being placed in a
particular room at the request of the guest (w); nor before
the Innkeepers’ Liability Act (#) was passed was he com-
pellable to receive every description of goods with a guest,
but only such as a person ordinarily travels with (y). But

(q) Squire v. Wheeler, 16 L.T., 185; 42 L. J., Ex. 185; 28 L. T.,

N.S. 93, per Byles, J. N. 8. 360.

(r) Spice v. Bacon, 2 Q. B. D. (w) Per Bayley, J., Richmond v.
463; 46 L. J., Q. B. 7138; 36 L. T., Smith, 8 B. & C. 9.
N.S. 896. (v) 26 & 27 Vict. c. 41.

8s) Ibid. (y) Broadwood v. Granara, 10 Ex.

t) Divon vy. Birch, L. R,8 Ex. 417.
INNKEEPER,

by the 2nd section of the 26 & 27 Vict. c. 41, it is enacted
that, “if an innkeeper shall refuse to receive for safe
custody, as before mentioned, any goods or property of his
guest, or if any such guest shall, through any default of
such innkeeper, be unable to deposit such goods or property
as aforesaid, such innkeeper shall not be entitled to the
benefit of this Act in respect of such goods or property.”
However, it is to be presumed that this section does not
apply to such goods as an txnkeeper was entitled to refuse
before this Act came into operation, as, if made applicable
to all goods, an énnkeeper who refused to convert his inn
into a warehouse for the goods of his guest would be
disentitled to the benefit of the Act in respect of them.

It is no defence to an action by a guest for the loss of
his goods for the innkeeper to allege that he was sick or of
non sane memory at the time(s); or that there was no
positive negligence on his part (a); but the negligence of
the guest is a good defence, if it is gross negligence (b), or
even if it occasioned the logs ‘‘in such a way as that it would
not have happened if the guest had used the ordinary care
that a prudent man may be reasonably expected to take
under the circumstances ”’ (c).

If the guest’s horse is stolen the innkeeper is answerable
in an action upon the custom of the realm (d), even if the
owner has gone away for several days, and it is lost or
stolen in his absence, or if it has been brought by a
servant (e). And inasmuch as 26 & 27 Vict. c. 41, s. 1,
specially exempts horses from the operation of that Act, the
innkeeper’s liability as respects amount is not restricted with
regard to them.

But if a person takes another’s horse, and rides him to an
inn where he is lost or stolen, the owner has no action
against the host, but has his remedy against the taker (/).

The liability of an innkeeper for loss continues only so

L. T., N. 8. 649; 46 J. P. 358;

(2) Cross vy. Andrews, Cro. Eliz.
622.

(a) Morgan v. Ravey, 30 L. J.,
Ex. 131.

(b) Armistead v. White, 20 L. J.,
Q. B. 524.

(c) Per Erle, C.J., Cashili v.
Wright, 2 Jur., N. 8. 1072—
Ex. Ch. See also Oppenheimer v.
White Lion Hotel Co., L. R.6 C.P.
515; 40 L. J., C. P.93; 25 L. T.,
N. 8. 93; Jones v. Jackson, 29 L. T.,
N. 8. 899; Herbert v. Markweill, 45

affirmed in C. A., W. N. 1882, p.
112; Marchioness of Huntly v. Bed-
ford Hotel Co., 56 J. P. 53.

(d) Fitzherbert’s Nat. Brev. 943;
Jelly v. Clark, Cro. Jac. 189; York
y. Greenaugh, 2 Lord Raym. 867;
§. C., 1 Salk. 338.

(e) 1 Salk. 888; 1 Rol. Abr. 3;
Moor, 877; Cro. Jac. 224; Yelv.
162; Bac. Abr. tit. Inns and Iun-
keepers.

(f) 1 Rol. Abr. 3.

203

How ousted.

Where a
guest’s horse
is stolen.

Where ano-
ther person’s
horse is
stolen.

Principle
20-4

upon which
liability de-
pends.

Horse out at
grass by the
gnest’s desire.

Horse out at
grass without
the guest's
desire.

INNKEEPERS, VETERINARY SURGEONS, ETC.

long as he derives benefit from his visitor or his property,
for if the innkeeper could not gain a profit, he is not hable
to suffer loss without a special undertaking (9), for so long
only is a visitor a guest. Upon this principle a person
leaving a horse at an inn becomes a guest, while a person
leaving dead goods at an inn does not become a guest, for
the horse must be fed, by which the innkeeper has gain (h).
And therefore the innkeeper is liable for the loss of the
horse, although its owner is not staying at the inn. Thus,
too, when a person came to an inn, and desired to leave
some goods there till the next week, which was refused, and
then stayed to drink something during which time his goods
were stolen, the innkeeper was held to be lable (¢). But if
a man who has been a guest, gives up his room, and quits
the inn for a few days, intending to return, and asks for
permission to leave his goods at the inn, and the innkeeper
takes charge of them, the innkeeper is clothed only with the
ordinary duties and responsibilities of a bailee (/).

An innkeeper is only bound by the custom of the realm to
answer for those things that are infra hospitium, and not
for anything out of hisinn. For where a horse is lost or
stolen when out at grass by the guest’s desire, the host is
not chargeable, unless it was the consequence of his wilful
negligence (/): for instance, an action hes against an inn-
keeper who voluntarily leaves open the gates of his close,
whereby the horse strays out and so is lost or stolen (™).

But he is answerable if he has put the horse out to grass
without the owner requiring him to do so (m). And where
an innkeeper took in a horse and gig on a fair-day, and the
hostler, without the guest’s permission, placed the gig out-
side the inn-yard, in the part of the street in which the
carriages at the inn were usually placed on fair-days, and
the gig was stolen thence, the Court of King’s Bench held
the cankeeper responsible. And Mr. Justice Taunton said,
“Tt does not appear that the gig was put in this place at
all at the request or instance of the plaintiff; the place is
therefore a part of the mn; for the defendant by his con-
duct treats it as such. If he would wish to protect himself,

(9) Gelley v. Clerk, Cro. Jac. 188. (2) Saunders v. Plummer, Ori.
(2) York v. Grindstone, 1 Salk. — Bridg. 227.
388. See also Day v. Bather, 2 H. (m) Bac. Abr. tit. Tuns and Inn-
& 0.14; 32 L. J., Ex. 171. keepers ; Culye’s case, 8 Coke, 32 b;
(‘) Bennet v. Mellor, 5 T. R. Moor, 1229; Pop. 127; Afosley v.
278; 2K. R. 593. Fosset, 1 Rol. Abr. 3; 4 Leon. 96;
(A) Smith v. Dearlove, 6 C. B. 2 Brownl. 255; Richmond v. Smith,
132. 8.B.&C. 11.
INNKEEPER.

he should have told the plaintiff that he had no room in
his yard, and that he would put the gig in the street, but
could not be answerable for it; not having done so, he is
bound by his common law liability ” (x).

It is said in Calye’s case (0), that an innkeeper’s liability
is confined to “ bona et catalla,’”’ and that he is not answer-
able if the guest himself is beaten, as that is not a damage
to “bona et catalla.” But it seems that this statement
must be simply taken to mean that the inukeeper is not
bound to insure his gwest ; for in a recent case it was held
that it is the duty of an innkeeper to take reasonable care of
the persons of his guests, so that they are not injured by
reason of a want of such care on his part whilst they are in
the inn as his guests (p). Where the guest’s horse has been
beaten, the innkeeper was held liable ; and it appeared that
it had been injured by having been taken out of the inn
and immoderately ridden and whipped, though it did not
appear by whom (q).

Where a guest’s horse is injured, there is always a pre-
sumption of negligence against the innkeeper. It is
questionable, indeed, if in any case this presumption can
be rebutted without proof of actual negligence on the part
of the guest. The case of Dawson v. Chamney (r) has been
relied upon to show that this presumption may be rebutted
by giving proof of such skilful management on the part of
the innkeeper, as to convince the jury that the damage
could not have been occasioned by the negligence imputed.
But this view of the law was held to be untenable by
Pollock, C.B., in the case of Morgan v. Ravey (s), who, in
delivering the judgment of the Court of Exchequer, said,
‘We think the cases show there is default in the innkeeper
wherever there is a loss not arising from the plaintiff's
negligence, the act of God, or the Queen’s enemies”? (é).

7 Jur. 1037. See also Cashill v.

(x) Jones v. Tyler, 1A. & HB. 522;
Wright, 2 Jur., N. 8. 1072.

S. 0.3 N. & M. 576.

(0) Calye’s case, 8 Rep. 32 a;
S.C. 8 Co. 32.

(p) Sandys v. Florence, 47 L. J.,
GC. P. 598, per Lindley, J. See also
Walker v. Midland Rail. Co., 55
L. T., N. 8. 489.

(g) Stannion v. Davis, 1 Salk.
404; 8. C. 6 Mod. 323. See also
Bather v. Day, 32 L. J., Ex. 171;
2H. & C. 14.

(r) Dawson v. Chamney, 13 L. J.,
Q. B. 38; S. C.5 Q. B. 165; S.C.

(s) Morgan v. Ravey, 6 H. & N.
265; 8. C. 30 L. J., Ex. 131.

(¢) According to the report of the
ease of Dawson v. Chamney, in 13 L.
J., Q. B. 33, and in 5 Q. B. 164, the
horse of the guest was left at the
defendant’s inn on a market day, and
given in charge to the ostler, who
placed it in a stall where there was
another horse, which kicked it, and
so inflicted an ay On these facts
it was held by the Court of Queen’s

205

Where a
guest’s person
or horse is
injured.

Presumption
of negligence
against the
innkeeper.
206

Not rebutted
by stables
being out of
his control.

A guest’s
goods not
distrainable.

Even where
he is accom-
modated out
of the inn.

Or uses a
stable pro-
vided for the
occasion.

INNKEEPERS, VETERINARY SURGEONS, ETC.

And it must be borne in mind that, though there be a
private arrangement between the innkeeper and the keeper
of the inn stables or hostler, and the result of that arrange-
ment be that as between him and the innkeeper, the tu-
keeper has lost all control over the stables, yet as between
the innkeeper and his guest no such private arrangement can
be recognized, and the innkeeper’s liability towards him for
injury done to the horse remains unimpaired (1). _

For the security and protection of travellers, inns are
allowed certain privileges, such as that the horse and goods
of the guest cannot be distrained, &c. (2).

If an innkeeper takes his guests to rooms that he has pro-
vided for him, on account of not having sufficient room in
his inn, these rooms are privileged from distress (y).

So also if a guest’s horse is put into a stable provided
for a particular occasion, it cannot be distrained. Formerly,
however, a different view was taken in a similar case. For
where the tenant of a stable had sub-let it to an innkeeper
during races, and the horses of a guest were put into it and

Bench, that in such case there was a
presumption of negligence on the part
of the innkeeper or his servants ; but
that this presumption might be re-
butted by giving proof of such skilful
management on his or their part as to
convince the jury that the damage
could not have been occasioned by the
negligence imputed. But a material
difference will be found in the report
of the facts of this case in 7 Jur.
1057, for it is there stated, that
“there was no evidence of the man-
ner in which the horse received the
injury for which the action was
brought.” It appears that the only
report of this case which was seen by
the Court, when giving judgment in
the case of Aforgan v. Ravey, was
that of the Jurist, and that Pollock,
C.B., founded the only possible re-
concilement of Dawson v. Channey
with the law upon this point, which
is the very point of discrepancy
between the Jurist and the other
reports. He said, ‘‘The only case
which points the other way is that of
Dawson v. Chamncy, and according
to the report of that case in 7 Jur.
1047, there was no evidence of the
manner in which the horse received
the injury for which the action was
brought; and this may be the ex-

enanee of that case, for though the
amuage happening to the horse from
what occurred in the stable might be
evidence of default or neglect, still it
was not shown how the damage arose,
and it was not even shown that it
arose from what occurred in the
stable. It might have arisen from
something which had occurred long
prior to the horse being put into the
custody of the innkeeper. That
would distinguish this case, and re-
concile all the cases with the general
current of authority.’ It matters
not indeed, so far as the law is con-
cerned, which report of the case of
Dawson vy. Chamney is authentic, for
if that contained in the L. J. and
Q. B. Reports is the correct one, it
has been overruled by Jlorgan v.
Lavey ; and if that of the Jurist is
to be taken, it does not establish the
point that in case of loss to the guest,
the presumption of negligence on
the part of the innkeeper can be
rebutted, otherwise than by proof of
actual negligence on the part of the
guest.

(«) Bather v. Day, 32 L. J., Ex.
171; 8L. T..N. 8. 205.

(x) 1 Rol. Abr. 668 ; Co. Litt. 47.

(y) See per Pollock, C.B., Wil-
liams v. Holmes, 22 L. J., Ex. 284.
INNKEEPER.

afterwards distrained by the landlord, the distress was held
good, and Lord Mansfield, C.J., thought that the owner of
the horses had his remedy against the innkeeper under the
implied warranty for safe custody (sz).

An innkeeper has a general lien on all goods and chattels
belonging to his guest (a).

He has no lien on goods sent to his guest for a particular
purpose, and known by him to be the property of another
person (6), but his lien extends to goods brought to the inn
by a guest, though they belong to a third party, provided
they be such as persons ordinarily travel with (c), as these
he is compelled tu receive. And in Threfall v. Borwick (d),
it was held that his lien extends to all the goods which he
has actually received with a guest whether the property of
the guest or not, and is not limited to such things as he was
bound to receive with the guest.

An innkeeper retaining the goods of his guest by virtue
of such lien is not bound to use greater care as to their
custody than he uses as to his own goods of a similar
description (e).

As an innkeeper by law is bound to receive the horse of a
traveller in case his stable is not full, he has therefore a lien
for its keep upon a horse left with him, and received by him
in his character as innkeeper (f), whether it be kept in the
stable or put out to grass. For the pasture of such persons,
set up by law for entertainment, has the same privilege as
the stables, and an action of trover cannot be maintained
against him for detaining the horse of his guest, unless the
money due for its keep has been paid or tendered (g).

An innkeeper cannot detain a guest, or take off his
clothes, in order to secure payment of his bill (4).

But he may detain his horse, or may bring an action for
lodging, &c., without any special contract (2).

(2) Crosier v. Tomkinson, 2 Ld.
Ken. 439; S. C. Barnes’ Notes, 472.

(4) Mulliner v. Florence, 3 Q. B.
D. 484; 47 L.J., Q. B 700; 38
L. T., N. 8. 167—C. A.

(0) Broadwood vy. Granara, 10 Ex.
417.

(c) Snead v. Watkins, 26 L. J.,
©: P57:

(@) L.R., 10 Q. B. 210; 44 L.
J.,Q. B. 87; 32L.T., N.S. 32—
Ex. Ch. See also Gordon vy. Silber,
25 Q. B. D. 491; 59 L.J., Q. B.
507; 63 L. T., N. 8. 283; 839 W. R.
111, where it was held to extend to

the separate property of the wife of
the party to whom credit was given.

(e) Angus v. McLachlan, 23 Ch. D.
330; 52 L.J., Ch. 587; 48 L. T.,
N. 8. 863; 31 W. R. 641.

(f) Smith v. Dearlove, 6 C. B.
135; 8. ¢. 12 Jur. 167.

(g) 2 Rol. Abr. 85; Cro. Car.
271; Carth. 150; 1 Salk. 388.

(2) Bac. Abr. tit. Inns and Inn-
keepers, 451; Sunbolf v. Alford, 3
M. & W. 248.

(i) Saunders v. Plummer, Orl.
Bridg. 227; Smith v. Dearlove, 6
C. B. 135.

207

Tnnkeeper’s
lien.

Innkeeper has
a lien on a
horse for its
keep.

Cannot detain
a guest for his
bill.

But may
detain his
horse.
His right of
lien.

Horses and
carriage

sent to livery
at an inn.

Cannot sell
one horse for
the keep of
others.

Has a lien
on a horse
left by a
wrongdoer.

INNKEEPERS, VETERINARY SURGEONS, ETC.

It has been said that the horse of a guest can be detained
only for his own meals, and not for the meals and expenses
of the guest (£). But this doctrine was doubtful (7). And
in a comparatively recent case (7), the Court of Appeal held,
that a chattel although deposited with the innkeeper and
placed by him apart from the personal goods of the guest,
may be detained by him on account of money owing to him
for the lodging, food, and entertainment of the guest.

An tnnkeeper’s right of lien depends upon the fact of the
goods coming into his possession in his character of inn-
keeper, as belonging to a guest (7). Soin a case in which a
trainer of racehorses went with them to an inn, stayed there
for a length of time, and put the horses into training; no-
thing being said of any special contract between him and
the innkeeper, it was held by the Exchequer Chamber that
he came there on the ordinary terms of an inn, and that the
innkeeper had a lien on the horses for their keep, although
they were frequently taken of the premises for days
together to attend races (0).

But if a man send his horses and carriage to livery at an
inn, and they are so received, the fact of his becoming a
guest at a subsequent period does not give the ‘nnkeeper any
hen (x).

Where several horses are brought to an inn by the same
person, each by the custom of London may be sold for his
own keep only, and not for the keep of the others; so that
if the innkeeper permits the guest to take away all but one,
he cannot sell this to pay the expenses of keeping the whole,
but must deliver it up on tender of the amount for its own
keep (p).

Where a person wrongfully seizes a horse, and takes it
to an inn to be kept, the owner cannot have it until he has
satisfied the innkeeper for its meat ; for the innkeeper is not
bound to inquire who is the owner of the property brought
to hisinn(q). If the zrakeeper in such case was to have
no lien, Doderidge, J., said, “ It were a pretty trick for one
who wants keeping for his horse ”’ (v).

(k) Bac. Abridg. Inns and Inn-
keepers.

(4) See Story on Bailments, 503,
504

(m) Mulliner v. Florence, 3 Q. B.
D. 484; 47 L.J.,Q. B. 700; 38
L. T., N. 8. 167—C. A.

(n) Smith v. Dearlove, 6 C. B.
185; 8. C. 12 Jur. 377.

(0) -Lllen vy. Smith, 9 Jur., N.S.
230, 1284; and see MMudliner v.
Florenec, whi supra.

(p) Aloss v. Townsend, 1 Bulst.
207. But see the Innkeepers Act,
1878 (41 & 42 Vict. c. 38), 8. 1, post.

(Q) Turrell v. Crawley, 18 L. J.,
Q. B. 155.

(r) Robinson v. Walter, Pop. 127.
INNKEEPER.

But if he knew at the time the horse was left, that the
person who brought it was a wrongdoer, and not the owner
of it, he has made himself a party to the wrongful act, and
has no lien upon the horse for its keep; and the question
as to the scienter must be left to the jury (s).

The horse must be placed at the inn by a guest to entitle
the innkecper to detain it for its keep; for where a person
was stopped with a horse under suspicious circumstances,
and it was left at an inn by the police, it was held that the
tmnkeeper had no lien, and that an auctioneer, by the direc-
tion of the innkeeper, selling the horse for its keep, was
hable to the owner of the horse in an action of trover (¢).

If the innkeeper previously agree to give the guest credit
for his entertainment, he cannot detain his horse or goods ;
or if where there has been no such agreement, he suffer his
guest’s horse to depart without payment, or by any other
means give credit to the owner, he cannot afterwards
detain it for the debt upon its coming again into his
possession (2).

If a third party promise the innkeeper to satisfy him for
the meat of the horse, in consideration that he will deliver
it to the guest, itis a good promise; for there is a good
consideration, inasmuch as the innkeeper loses the detainer,
which is a damage, and the guest regains the horse, which
is the advantage («).

But where the owner of a horse has fraudulently got
possession of it to defeat the lien, the innkeeper may retake
it without force, for the lien is not put an end to by his
having thus parted with the possession of it(y). But it is
held that the cankeeper must make fresh pursuit after it,
and retake it, otherwise the custody is lost; for he cannot
take it at any other time, as it is in the nature of a distress.
But where there is a lien by agreement, it ism the nature
of a pledge, and the innkeeper may retake the horse, not
only on fresh pursuit, but also wherever he finds it (z).

It has been held that an ‘nnkeeper who detains a horse
for his keep has a lien upon him for the necessary food
supplied when thus in his possession, even if it be given
against the express direction of the owner. Thus where the
owner of a horse stauding at an inn came and directed that

(x) Hutton, 101.

(y) Wallace v. Woodgate, Ry. &
M. 193; S. 6.10. & P. 575.

(2) Rosse v. Bramstead, 2 Rol.
Rep. 438.

(s) Johnson v. Hill, 3 Stark. N.
P. C. 172.

(t) Binns v. Pigot, 9 C. & P. 208.

(u) Jones v. Thurloe, 8 Mod. 172 ;
S.C. Jones v. Pearle, 1 Str. 557.

0. P

209

But not if he
knew it at
the time it
was left.

A horse left
by the police.

Giving a
guest credit.

A third party
when answer-
able.

Horse re-
moved to de-
teat the lien.

Keep during
detention.
210

He cannot
use a horse
he detains.

He could not
formerly sell
a horse he
detained.

But may now
sell horse
after six
weeks.

INNKEEPERS, VETERINARY SURGEONS, ETC.

the innkeeper should not give him any more food, as he
would not be responsible for it, and the question was,
whether the owner was chargeable for the food given after
this direction, Chief Justice Holt was at first melined to
consider this a discharge, and that the horse, though he
might be retained by the innkeeper, was but in the nature
of a distress, and that being in the custody of the «keeper
in his inn, it was a pound covert, and the horse consequently
ought to be maintained at his peril. However, he atter-
wards changed his opinion, and directed that this was xo
discharge ; for then any innkeeper might be deceived, and
his security would be lessened (a). But his first opinion
appears to be consistent with the law (0).

Where an nkeerer detains a horse for its meat he can-
not use it, because he detains it as in the custody of the law,
and the detention is in the nature of a distress, which can-
not be used by the distrainor (c).

An innkeeper could not formerly sell the horse he de-
tained for his meat and so pay himself, because, as the
Court said in Jones v. Thurloe, “he is not to be his own
carver” (¢). And even if the horse “eat out the price of
its head,” that is, consume as much as it is worth, he could
not sell it, except he lived in London or Exeter, where by
the custom of those places, if the horse is the property of
the guest, he may take it as his own upon the reasonable
appraisement of four of his neighbours (¢).

But now, by the Innkeepers Act, 1878 (41 & 42 Vict.
ce. 38), s. 1, “the landlord, proprietor, keeper, or manager
of any hotel, inn, or licensed public-house shall, in addition
to his ordinary lien, have the right absolutely to sell and
dispose by public auction of any goods, chattels, carriages,
horses, wares, or merchandise which may have been de-
posited with him, or left in the house he keeps, or in the
coach-house, stable, stable-yard, or other premises appur-
tenant or belonging thereunto, where the person depositing
or leaving such goods, chattels, carriages, horses, wares, or

(a) Gelber v. Berkeley, Skin. 648; 270; Bac. Abr. tit. Inns and Inn-

and see Scarfe v. Morgan, 4 M. &
W. 270.

(0) Co. Litt. 47b; British Empire
Shipping Co. v. Somes, 28 L.I.,Q. B.
220; 8. G. 80 L. J., Q. B. 229—
Ex. Ch. See also Scarfe v. Morgan,
+M. & W. 279, 284.

() Westbrook y. Griffith, Moor.
876; Robinson vy. Walter, 3 Bulstr,

keepers.

(@) Jones v. Thurloe, 8 Mod. 172;
S. C., Jones v. Pearle, Str. 556.

(e) Baldway vy. Ouster, 1 Vent.
71; Westbrook v. Griffith, Moor.
876; Moss v. Townsend, 1 Bulstr.
207; Robinson vy. Walter, 3 Bulstr.
270; Bac. Abr. tit. Inns and Inn-
keepers.
INNKEEPER.

merchandise shall be or become indebted to the said inn-
keeper either for any board or lodging or for the keep
and expenses of any horse or other animals left with or
standing at livery in the stables or fields occupied by such
innkeeper.

“Provided that no such sale shall be made until after
the said goods, chattels, carriages, horses, wares, or mer-
chandise shall have been for the space of six weeks in such
charge or custody or in or upon such premises without such
debt having been paid or satisfied, and that such innkeeper,
after having, out of the proceeds of such sale, paid himself
the amount of any such debt, together with the costs and
expenses of such sale, shall on demand pay to the person
depositing or leaving any such goods, chattels, carriages,
horses, wares, or merchandise the surplus (if any) remaining
after such sale.

“Provided further, that the debt for the payment of
which a sale is made shall not be any other or greater
debt than the debt for which the goods or other articles
could have been retained by the zarheeper under his lien.

“ Provided also, that at least one month before any such
sale the landlord, proprietor, keeper, or manager shall cause
to be inserted in one London newspaper and one country
newspaper circulating in the district where such goods,
chattels, carriages, horses, wares, or merchandise, or some of
them, shall have been deposited or left, an advertisement
containing notice of such intended sale, and giving shortly
a description of the goods and chattels intended to be sold,
together with the name of the owner or person who de-
posited or left the same, where known.”

The lien of an innkeeper over a chattel belonging to a
guest is waived, if in order to reimburse himself he sells it,
unless under the foregoing enactment, and this rule holds
good even although the retention of the chattel is attended
with expense (7). But an innkeeper who accepts security
trom his guest for the payment of his bill does not waive
his lien upon the goods of the guest unless there is some-
thing in the nature of the security, or in the circumstances
under which it was taken, which is inconsistent with the
existence or continuance of the lien and, therefore, de-
structive of it (9).

(f) Mulliner v. Florence, 3 Q. B. (g) Angus v. McLachlan, 23 Ch.
D.484; 47 L. J., QB. 700; 38 D. 330; 52L.J., Ch. 687; 48 L. T.,
L. T., N.S. 167; 26 W. R. 885— =N. 8. 868; 31 W. R. G41.

C. A.

P 2

Waiver of
lien.
212

Distrainor’s
power of sale
by statute.

Veterinary
surgeon.

INNKEEPERS, VETERINARY SURGEONS, ETC.

Under statute 5 & 6 Will. 4, c. 59, s. 4, requiring the
distrainor of any horse (which word “horse” may by
section 21 be construed as “ horses”) to feed it while in the
pound, and empowering him, after seven days, to sell any
such horse for the expenses, a party distraming several
horses may, by a proper exercise of discretion, sell one or
more, for the expense of all. And it would seem that he
may repeat such sale from time to time as need requires (/).
This statute has been repealed. But its provisions have
been substantially re-enacted by 12 & 18 Vict. c. 92,
except as to the power of sale. And this was restored by
17 & 18 Vict. c. 60, s. 1.

Veterinary Surgeon and Farrier.

Previously to the Veterinary Surgeons Act, 1881, there
was no law which applied to veterinary surgeons im par-
ticular; and where there was no contract he had to go on
a quantum meruit. And an usage to charge for attendance,
where there was not much medicine required, was held too
uncertain (hh).

The Royal College of Veterinary Surgeons was founded
in the year 1791, and received a charter of incorporation in
the year 1845. By its charter, veterinary surgery is con-
stituted a profession, and the registered members of its body
are alone to be recognized as the members of the veterinary
profession. Its diploma is granted only to persons who have
qualified themselves by a certain educational course tested
by examination. In the earlier editions of this work it was
suggested that it would be a security to the public against
unqualified practitioners, if the legislature were to impose a
penalty on persons practising as veterinary surgeons,
without possessing a diploma trom this or some other duly
constituted body. This suggestion is carried out by the
Veterinary Surgeons Act, 1881 (44 & 45 Vict. c. 62),
which by sections 11, 12, imposes a penalty not exceeding
50/., or imprisonment with or without hard labour, for any
term not exceeding twelve months, on any person obtaining
registration by false representation, or on the registrar for
wilful falsification of the register of veterinary surgeons.
The Act, by sections 13, 14, further provides for the regis-
tration of colonial or foreign practitioners possessing some
recognised diploma; by section 16 imposes a penalty of 20/.

(h) Layton v. Hurry, 8 Q. B. 811. (hh) Lane v. Cotton, 1 Salk. 18.
VETERINARY SURGEON AND FARRIER.

on any person falsely representing himself to be a member
of the Royal College; and by section 17 imposes a like
penalty on any person not possessing the prescribed quali-
fications who, after December 31st, 18838, “takes or uses
... any name, title, addition or description stating that he
is... a practitioner of veterinary surgery, or of any
branch thereof, and further incapacitates any such person
from recovermg any fee for performing any veterinary
operation (7).

‘Where a man takes upon himself a pubdic employment
he is bound to serve the public as far as his employment
goes, or an action lies agaist him for refusing. Thus if a
farrier refuse to shoe a horse (7), an innkeeper to receive
a guest, a carriage to carry, when he may do it, an action
hes (A).

But the horse must be brought to be shod at a reasonable
time for such purpose; because if brought at an irregular
hour, the farrier may say, “I will not do it” (7).

A farrier is liable for laming a horse in shoeing it, and
the action is founded on the implied contract, that every
workman undertaking any work will perform it properly (/),
because it is the duty of every artificer to exercise his art
rightly and truly as he ought (m).

And an action may be maintained for a breach of duty,
arising out of a contract with a third person. Thus
Coke, C.J., puts this case, ‘If the master sends his servant
to pay money for him upon the penalty of a bond, and on
his way a smith in shoeing doth prick his horse, and so by
reason of this the money is not paid; this being the
servant’s horse, he shall have an action upon the case for
pricking of his horse; and the master also shall have his
action wpon the case for the special wrong which he hath

(*) Where a shoeing-smith not
possessed of the qualifications speci-
fied by section 17 had for the last
twenty-five years described his place
of business as a “veterinary forge,”
it was held that these words consti-
tuted a description that he was
specially qualified to practise a branch
of veterinary surgery within the
meaning of the section, and that he
was, therefore, liable under the
section (Royal College of Veterinary
Surgeons v. Robinson, [1892]1Q. B.
557; 61 L. J., Q. B. 146). But
where a chemist published a book
dealing with diseases of horses, re-

commending medicines which he kept
and advising people in some cases to
consult a veterinary surgeon, and
described himself in the book as a
pharmaceutical and veterinary chem-
ist, it was held that he was not
unlawfully using a description imply-
ing that he was a veterinary surgeon
(Veterinary College v. Green, 57 J. P.
505).

(7) 14 Hen. 6, 18.
(k) See note (2/), ante.
(2) 2 Chit. Pleading, 6th ed, 262.
(m) Rex v. Kilderby, 1 Saund.
312, n. 2.

213

Farrier
cannot refuse
to shoe a
horse,

When
brought at a
reasonable
time.
Answerable
for his own
want of skill.

Where a third
person is
affected.
214

When answer-
able for his
servant.

Action
against a
farrier for
pricking «
horse.

Collins v.
Rodway.

INNKEEPERS, VETERINARY SURGEONS, ETC.

sustained by the non-payment of his money occasioned by
this ”’ (n). ;

And where a horse has been injured in shoeing from the
negligence of a farrie’s servant, the master is liable (0).
But not if the wrong be wi/ful, as if the servant maliciously
drives a nail into the horse’s foot in order to lame him (jp).

An action lies against a farrier for pricking a horse
when shoeing him (g), and where one smith lends a horse
to another, and the second pricks him in shoeing, the
action lies against the first, or the second, in the option of
the owner (7).

The rule of law as to the extent of a farrier’s liability in
shoeing a horse, is fully and clearly laid down by Chief
Baron Pollock in the case of Collins v. Rodway (s) ; and as
that case does not appear in any of the reports, it will
here be given at considerable length. The following is
compressed from an exact copy of the shorthand notes which
were taken at the trial, and afterwards published in the
Veterinarian. Tt was an action brought against the defen-
dant, a farrier, for unskilfulness in the shoeing of two
horses sent by the plaintiff to be shod at the detendaut’s
torge, which he carried on for the purpose of shoeing horses
with a shoe for which he had a patent.

The one, a grey mare pony, was sent on the 16th of
July, in the evening after working hours, and was shod at
the particular request of the plaintiff’s father. On the 17th
she was driven with two men in a gig to Barnet, and it was
admitted that for three miles she had gone sound. On the
20th the shoes were taken off by the apprentice of Beck,
another farrier. On the 21st the defendant received notice
of her lameness, and on the 26th, after her feet had been
cut about and poulticed, she was reshod by Beck and atfter-
wards worked. It appeared that subsequently she had
been turned out for nine weeks.

The other, a black entire pony, was sent to be shod on
the 18th July. On the 21st the shoes were taken off by
Beck, and blood was said to have followed the withdrawal
of two of the nails. It was admitted that this pony’s feet

(x) Brevard v. Hopkins, 2 Bulstr. 48; 11 Edw. 4, 6; 56 Edw. 3, 19;
332; and see Longmead v. Holliday, 3 Hen. 6, 36; 14 Hen. 6, 83; Orig.

6 Exch. 764. 106a; 48 Edw. 3, 6, pl. 11.
(0) 1 Bla. Com. 431 ; Randleson v. (r) 12 Edw. 4, 13.

Murray, 8 A. & E. 109. (s) Collins v. Rodway, before Pol-
(p) Jones v. Hart, 2 Salk. 440. lock, C.B., Guildhall, Dec. 15, 1845;

(q) Nat. Brev. 94 d.; 17 Edw. 4, — 14 Veterinarian, 102.
VETERINARY SURGEON AND FARRIER.

were very thin and bad, and his action very high. What
was done to this pony did not appear; but he had been
under the care of Mr. Field the veterinary surgeon, and
was afterwards sold for a small sum at Aldridge’s repository
some time in October.

At the trial no veterinary surgeons were called to give
any information as to the nature of the injury or of the
parts injured. And the allegation that the patent shoe
was one likely to produce lameness by its application, was
withdrawn by the plaintiff’s counsel.

The defendant’s case rested on two grounds: First, That
even supposing the ponies to have been lamed in shoeing,
he was not lable because he had brought to the perform-
ance of that duty competent skill and reasonable care, and
that the plaintiff knowingly brought them to have the
patent shoe applied. Secondly, That one pony was lame
before it was shod, and the other had not been lamed by
the shoeing, but the lameness had arisen from other causes.

In summing up Chief Baron Pollock said to the jury:
“The only rule of law that I feel it necessary to lay down
upon the subject in this case is, that if this operation has
been performed unskilfully and improperly, no doubt the
defendant is liable to the plaintiff for any mischief that may
have resulted from such unskilfulness ; but he is liable only
to the extent to which mischief has been produced. The
rude I take to be this, that a person employed for any
purpose must bring to the subject-matter a reasonable skill
and fitness, and he must exercise that reasonable skill and
fitness with due and proper care. If he be deficient im
the requisite skiltulness, and in consequence of that the
operation is performed in a bad and bungling manner, or
it, having the requisite skilfulness, he fails to bring it to
act, he is Hable for any mischief which results from that.”

“T need hardly tell you, that an operation of this sort
cannot be considered in the light of an insurance. If you
apply to a surgeon or a medical man to cure you of any
disorder, he is liable if there is any want of skill or proper
care; and I observed that one of you asked whether
pricking a horse was a frequent accident. I think the
answer to that immediate question was, that it was not, at
all events, very unfrequenc; still it may happen without
any great degree of unskilfulness attaching to it. The
operation most resembles that of shaving. If a man under-
takes to shave another, he would not be responsible tor
every abrasion of the skin that the barber might make; it

215

Rule as to
farriers.

No insurance
against
injury.
216

Peculiar dif-
ficulties should
be men-
tioned.

Coming at an
unseasonable
hour.

Farrying, &¢.,
in the street.

INNKEEPERS, VETERINARY SURGEONS, ETC.

requires a degree of skilfulness and care, and it might be
hardly possible to operate upon a certain person without
something of that sort taking place: and although an
accident may happen, such as in this case, it may be that
the foot of the horse was in such a state that it would be
difficult to perform tke operation of shoeing.”

‘Wherever that is the case, you would naturally expect
some information given that there were those defects and
difficulties, so that the farrier might be made acquainted
with the risk he was exposing himself to. You will there-
fore have to judge whether you think there was any want
of skill in the operation of shoeing these horses. I own it
appears to me that I think it is impossible to doubt as to
the fact that there was an actual pricking.”

“ With respect to the man’s skill, he may have done it
on this occasion badly, they coming to him at night to
insist upon the job being done at an irregular hour; that
was partly suggested at one time. I must say it appears to
me as a question of law, that it is no excuse. If you
go to any place, and call in a surgeon or a farrier, or any
person to perform an operation, if the time is imconvenient,
and if the light be not sufficient, and if the occasion be not suit-
able, he is bound to say ‘I will not doit.’ If he doesit, he is
answerable, unless indeed he distinctly and explicitly says, ‘I
do it at your urgent request, but I will not be responsible for the
consequences.” Nothing of that sort appears to have come
from him. On the contrary, though there may have been
a remonstrance that the man came too late, yet it was
done. It appears to me in point of law that if a person,
called upon at an unseasonable time, undertakes to do it
without declaring he will not be responsible, he does it
with the same responsibility as if he did it at any proper
time.”

The jury found a verdict for the defendant, and the
Court of Exchequer afterwards refused a rule for a new
trial, which was applied for on the ground that the verdict
was against the evidence.

Under the Police of Towns Act every person who, in any
street, to the obstruction, annoyance or danger of the
residents, shoes, bleed or farries any horse or animal (except
m cases of accident), or cleans, dresses, exercises, trains, or
breaks, or turns loose any horse or animal, is liable to a
penalty not exceeding 40s. (¢).

(4) 10 & 11 Vict. c. 89, s. 28. See also 2 & 3 Vict. c. 47, 8. 54 (1).
VETERINARY SURGEON AND FARRIER,

A horse standing at a farrier’s to be shod is exempt from
distress on the ground of public utility (w).

As a party has a right to go to a farrier’s shop by the
tacit permission of the law (a), an action of trover does not
lie against a farrier for refusing to deliver a horse which he
has shod, unless the money due for the shoeing has been
paid or tendered (y).

Because the artificer to whom goods are delivered for the
purpose of being worked into form,—the farrier by whose
skill an animal is cured of a disease,—the horsebreaker by
whose skill a horse is rendered manageable, and the man
who covers a mare with a stallion, have liens on the
chattels in respect of their charges. And all such specific
liens, being consistent with the principles of natural equity,
are favoured by the law, which is construed liberally in such
cases (2).

But the horse can only be kept for work done at that
particular time, for the lien does not extend to any previous
account; and when this point was decided by the Court of
Queen’s Bench, Lord Ellenborough said, ‘‘ Growing liens
are always to be looked at with jealousy, as they are en-
croachments on the common law. If they are encouraged
in practice, the farrier will be claiming a lien upon a horse
sent to him to be shod. It isnot for the convenience of the
public that these liens should be extended further than they
are already established by law” (a).

In the case of Scarfe v. Morgan (b) a difficulty arose out
of the circumstance that a living chattel might become
expensive to the detainer, and would raise the question as
to who was liable to feed it intermediately. But this
difficulty was answered by referring to the analogous case of
a distress kept in a pound covert, where he who distrains is
compellable to take reasonable care of the chattel distrained,
whether living or animate ; and to the case of a lien upon
corn, which requires some labour and expense in the proper
custody of it (¢).

(u) Francis v. Wyatt, 3 Burr. 229; 8R. R. 520.

1502, and the authorities there cited.
(x) Lane v. Cotton, 1 Salk. 18.
(y) Bac. Abr. Trover (E.) 816.
(2) Scarfe v. Morgan, 4 M. & W.

280; Chase v. Westmore,5 M. & 8.

189; 17 R. R. 301.

(a) Rushforth v. Hadfield, 7 East,

(6) Scarfe v. Morgan, 4 M. & W.
80

(c) See ante, p. 209 ; 12 & 18 Vict.
c. 92, and 17 & 18 Vict. c. 60, s. 1;
also ante, p. 212; British Empire
Shipping Co. v. Somes, 28 L. J.,Q. B.
220—Ex. Ch.

217

Horse stand-
ing to be shod
not dis-
trainable.

Horse may be
detained for
the price of
his shoeing.

Such lien is
favoured by
law.

Extends only
to each parti-
cular time.

Liability to
feed a horse
detained.
218

Torsebreaker
liable tor

damage to the

horse.

Horse-
breakev’s lien.

Trainer’s lien.

INNKEEPERS, VETERINARY SURGEONS, ETC.

Horsebreaker, Trainer, &c.

A horsebreaker is lable for any damage which through
his negligence may happen to the horse he is breaking.
Thus an action on the case was brought, and damages
recovered against the defendant, to whose charge a mare
had been committed, “to be taught to pace” (7).

The horsebreaker, by whose skill the horse 1s rendered
manageable, has a lien upon him in respect of his charges ;
and such lien being consistent with the principles of natural
equity, is favoured by the law, which in such case is con-
strued liberally (e).

It was for a long time doubtful whether in any case a
trainer had a lien for the keep and exercise of a racehorse
sent to him to be trained; unless perhaps it was delivered
to be trained for the purpose of running a specified race (f).
In Beran v. Waters (g) he was held to have a lien; and the
question also arose in Jacobs v. Latour (h), but the case was
decided on another point. The doubt seemed to be whether
in the contract for tra‘ning there was a stipulation for the
re-delivery of the horse ¢rained for the purpose of racing.
And in a later case Mr. Baron Alderson said, “It may be
very doubtful whether a trainer would not be considered to
be im the situation of a fivery-stable heeper, if by the contract
he is to allow the owner to run the horse” (i). Mr. Baron
Parke, shortly afterwards in another case, said, “ As to the
case of the training groom it is not necessary to say any-
thing, as it has not been formerly decided; for in Jacobs v.
Latour (h) the point was left undetermined. It is true
there is a nisi prius decision of Best, C.J., in Bevan v.
Waters (j), that the tratner would have a lien, on the
ground of his having expended labour and skill in bringing
the animal into condition to run at races; but it does not
appear to have been present to the mind of the Judge, nor
was the usage of ¢raining to that effect explained to him,
that when horses are delivered for that purpose the owner
has always a right during the continuance of the process to
take the animal away for the purpose of running races for

(2) Lib. Plac. 25. C. & M. 304.

(e) Scarfe v. Morgan, 4 ML & W. (h) Jacobs v. Latour,2 M. & P.
276. 205.

(f) See Jackson vy. Cummins, 5 () Searfe vy. Morgan, 4 M. & W.
M. & W. 350. 27

6.
(g) Bevan v. Waters, 3 C. & P. (7) Bevan v. Waters, 3 C. & P.
520. See also Sunderson v. Bell, 2 520.
HORSEBREAKER, TRAINER, ETC.

plates elsewhere. The right of lien, therefore, must be
subservient to this general right which overrules it ; so that
I doubt if that doctrine would apply where the animal
delivered was a racehorse, as that case differs much from
the ordinary case of ¢raining. I do not say that the case of
Bevan v. Waters (k) was wrongly decided; I only doubt if
it extends to the case of a racehorse, unless perhaps he was
delivered to the groom to be trained for the purpose of
running a specified race, when of course these observations
would not apply ” (2).

It has, however, been decided in a later case, that the
labour and skill employed on a racehorse by a trainer are
a good foundation for a lien (m). But if by usage or
contract the owner may send the horse to run at any
race he chooses, and may select the jockey, the trainer
has no continuing right of possession and consequently
no lien (m2).

The owner of a stallion is entitled to a specific lien on
the mare, in respect of his charge for covering her. Thus
in the following case 8. sent a mare to M., a farmer, to
be covered by a stallion belonging to him, and the mare
was taken to M.’s stables and covered accordingly upon
a Sunday. However, the charge for covering not being
paid, M. detained the mare, and on a demand of her
being afterwards made, M. refused to deliver her, claiming
a lien not only for the charge on that occasion, but for a
general balance due to him on another account. It was
held that M. was entitled to a specific lien on the mare
fur the charge of covering her, and that the claim made
by M. to retain the mare for the general balance was not
a waiver of his lien for the charge on the particular occa-
sion, and did not dispense with the necessity of a tender
of that sum (7).

It was also decided that such a contract was not void
within 29 Car. 2, ¢. 7, s.1, on the ground of its having
been made and executed on a Sunday, but that even if it
were void the contract having been executed the lien
attached. And Mr. Baron Parke said, ‘“‘ We are of
opinion that this is not a case within the statute 29 Car.
2,¢. 7, which only had in its contemplation the case of

(k) Bevan v. Waters, 3C. & P. 680; 18 L. J., Q. B. 266; see also
520. Leev. Irwin, 4 Iv. Jur. 372.

(2) Jackson v. Cummins, 5 M. & (n) Scarfe v. Morgan, 4 M. & W.
W. 350. 270.

(m) Forth vy. Simpson, 13 Q. B.

Stallion-
master has a
lien.

For work
done ona
Sunday.
220

INNKEEPERS, VETERINARY SURGEONS, ETC.

persons exercising trades, &c. on that day, and not one
like the present, where the defendant, in the ordinary
calling of a farmer, happens to be in possession of a stallion
occasionally covering mares; that does not appear to me
to be exercising any trade, or to be the case of a person
practising his ordinary calling”? (0).

(0) Scarfe v. Morgan, 4 M. & W. 270.
CHAPTER XI.

LIVERY-STABLE KEEPERS, AGISTERS, AND THE HIRING AND
BORROWING HORSES.

Livery-stable Keeper.

A livery-stable_ keeper, who is not an innkeeper, has no
privilege himself, and none can be claimed under him; he
must therefore rest on his own agreement (a). But he is
not liable to the inconveniences to which innkeepers are
subject, such as taking out licenses, &c.; and he is not
bound to have soldiers quartered upon him (0).

But if a horse in his keeping be lost or stolen, he is
answerable for it (c).

A person should satisfy himself of the credit and solvency
of the Livery-stable keeper, to whom he proposes to entrust his
horse; because horses and carriages standing at livery are
distrainable for rent (c).

But the case of a horse sent to a livery-stable merely
to be cleaned and fed, is very different from one, where
he is sent to remain during the owner’s pleasure, the
feeding and grooming being only incident to the principal
object (d).

In the case of Parsons v. Gtingell (e), the following
distinction was taken by Chief Justice Wilde: “If the
goods are sent to the premises for the purpose of being
dealt with in the way of the party’s trade, and are to re-
main upon the premises until that purpose is answered,
and no longer, the case falls within one class; but if they
are sent for the purpose of remaining there merely at the

(a) Yelv. 66; Chapman v. Allen,
Cro. Car. 271; Yorkev. Greenaugh,
2 Ld. Raym. 687; 8. C. 1 Salk.
388; Gelly v. Clerk, Cro. Jac. 188.
In some of the States in America
statutes are in force giving the livery-
stable keeper a lien upon animals
for their keep. See Hanover on
Horses, 2nd ed. 205; Colquitt v.
Kirkman, 47 Ga. 555 (1873).

(b) Parkhurst \. Foster, 1 Salk.

3887; Barnard v. How, 1 C. & P.
366.

(c) Yorke v. Greenaugh, 2 Ld.
Raym. 866; Francis v. Wyatt, 3
Burr. 1498; 1 Bla. Rep. 485; Par-
sons ¥. Gingell, 4 C. B. 558; 16
L. J., C. P. 227.

(d) See per Wilde, C.J., Parsons
v. Gingell, 4 C. B. 558.

(e) Parsons v. Gingell, 4 OC. B.
558.

Has no pri-
vilege.

Liable where
the horse
lost.

Horse at
livery dis-
trainable.

But not
where he is
merely to be
cleaned and
fed.

Distinction
taken in
Parsons v.
Gingell.
222

Livery-stable
keeper has
no lien for
keep.

May have a
lien by agree-
ment.

Horse re-
moved to
defeat such
lien.

Livery-stable
keeper has no
lien for money
expended on
horse.

What cannot
be set off in
an action for
keep.

LIVERY-STABLE KEEPERS, AGISTERS, ETC.

will of the owner, there being no work to be done upon
them, it falls within a totally different consideration.”

A livery-stable keeper cannot detain a horse for his keep
as an innkeeper may, because he is not bound to take it,
much less can he detain, or be bound to take a carriage
without horses (/').

But he may have a lien by special agreement, as where
a mare was placed with a /ivery-stable keeper, who advanced
money to her owner, and it was agreed that she should
remain as a security for the repayment of the sum
advanced, and for the expenses of her keep, the /rery-
stable keeper was held to have a lien on her for the amount
due (9).

And if he have such lien by agreement, and the owner
of the horse fraudulently take it out of his possession to
defeat the len, the Livery-stable heeper may retake it
without force, for the lien is not put an end to by his
having parted with the possession under such circum-
stances (/).

A livery-stable keeper has no lien on a horse for money
expended by him on the horse at the request of the owner.
Thus in a case in which a /ivery-stable keeper had employed
a veterinary surgeon at the request of the owner to blister
a horse standing at livery with him for splints, and had
actually paid the bill, it was held that he had no right
to detain the horse for the amount of this bill, inasmuch
as the veterinary surgeon had no lien for his bill, nor the
livery-stable keeper for his keep ; and inasmuch as there is
no rule of law, which gives a Jirery-stable keeper a lien
for money expended upon a horse standing at livery at the
request of the owner (?).

Where a “ivery-stable keeper brings an action for a horse’s
keep, money received by him as the price of the horse,
but afterwards returned on the rescission of a contract of
sale, cannot be set: off against him by the defendant. Thus,
the plaintiff, a Mvery-stable keeper, sold for the defendant a
horse and received the price. The purchaser afterwards
rescinded the contract on the ground of fraud, and was
repaid the purchase-money. In an action by the plaintiff

(f) Barnard v. How, 1 C. & P. (y) Donatty v. Crowder, 11 Moore,
366; Yorke v. Greenaugh, 2 Ld. 479.

Raym. 867; Francis v. Wyatt, 3 (h) Wallace v. Woodgate, R. & M.
Burr. 1498; 1 Bla. Rep. 485; Por 193; 8. C21 C0. & P. 575.

sons v. Gingell, 4 C. B. 558; 16 () Orchard v. Rackstraw,9 C. B.
L. J., C. P. 227. 698.
LIVERY-STABLE KEEPER.

for the keep of the horse, it was held that the defendant
could not set off the price as money received for his use,
it having ceased to be so when the contract was defeated
by the purchaser, although the defendant was ignorant of
the fraud (x).

A livery-stable keeper who undertakes for reward to
receive a horse or carriage and lodge it in a stable or
coach-house, is bound to take reasonable care (/). The
obligation to take reasonable care of the thing entrusted to
a bailee of this class, involves in it an obligation to take
reasonable care that any building in which it is deposited
1s in a proper state, so that the thing deposited may be
reasonably safe in it; but no warranty or obligation is to be
implied by law on his part that the building is absolutely
safe. The fact that the building has been erected by the
livery-stable keeper on his own ground makes no difference
to his liability (m).

In Searle v. Laverick (n), the plaintiff brought his horses
and two carriages to the defendant, a livery-stable keeper ;
the carriages were placed under a shed on his premises, a
charge being made by him in respect of each. The shed
had just been erected, the upper part still beimg in the
hands of workmen. The defendant had employed a builder
to erect the shed for him as an independent contractor, not
as his servant, and he was a competent and proper person
to employ. The shed was blown down by a high wind,
the detendant being ignorant of any defect in it, and the
carriages were injured, upon which the plaintiff brought
an action against him. At the trial, the above facts
having been admitted, the judge rejected evidence to prove
that the fall of the shed was owing to its being unskilfully
built through the negligence of the contractor and his
men; and he nonsuited the plaintiff, ruling that the
defendant’s liability was that of an ordinary bailee for
hire, and that he was only bound to take ordinary care in
the keeping of the carriages, and that if he had exercised in
the employment of the builder such care as an ordinary
careful man would use, he was not lable for damage
caused by the carelessness of the builder, of which the
defendant had no notice. And this nonsuit and ruling
were held right.

(hk) Murray v. Mann, 2 Ex. 538. L. T., N.S. 89.
(1) Searle v. Laverick, L. R., 9 (m) Ibid.
Q. B. 122; 431. J., Q. B. 43; 30 (n) Ibid.

223

He must take
reasonable
care of the
horse.
224

An action for
not taking
due care of a
horse founded
on contract.

His posses-
sion.

Does not in-
sure a horse’s
safety.

He is answer-
able for negli-
gence.

If he leaves
his gates
open.

LIVERY-STABLE KEEPERS, AGISTERS, ETC.

An action against a livery-stable keeper for not taking
due and proper care of a horse of the plaintiff's, whereby
damage resulted, is founded on contract, and not in fort,
and thus differs from an action against a farrier, who
shoes a horse negligently, and so commits a breach of a
common law duty. Therefore, where less than 20/. is
recovered against a lrery-stable keeper, the plaintiff is
deprived of costs by the County Courts Act, 1888, s. 116,
unless the judge certifies that there was sufficient reason
for bringing the action im the High Court (0).

Agister.

An agister has such a possession that he may maintain
trespass against a person who has taken away any horse
or cattle left with him to be agisted (p). He may also
maintain an action of frorer for horses or other cattle
during their agistment (q). If a horse so left be sold by
him, it is no larceny (7); and if it be stolen, and the thief
prosecuted, the property may be laid as his (s).

A person who takes in horses to agist does not, like an
innkeeper, ivswre their safety. He is obliged to use rea-
sonable care, but is not answerable for the wantonness or
mischief of others. For if a horse has been taken from
his premises, or has been lost by accident, against which he
could not guard, he is not responsible (¢).

A person who takes horses to agist is answerable, either
if a particular negligence be proved, through which the horse
was lost, or if, im ignorance of the special circumstances of
the case, there be gross general negligence, to which the loss
may reasonably be ascribed (x).

For instance, if cattle be agisted, and the agister leaves
the gates of his ficld open, he uses less than ordinary dili-
gence ; and if the cattle stray out and are stolen, he must
make good the loss (+r).

Where an action was brought for the breach of a contract

(0) Legge v. Tucker, 1 H. & N. (s) Woodward's case, 2 East's P.
500; 26 L. J., Ex., 71, decided C. 653.
under 13 & 14 Vict. c. 61, s. 11, (1) Broadwater v, Blot, Holt, 547.

(p) See 4 Inst. 293; 2 Rol. Abr. See Corbett v. Packington, 6 B. & C.
551; Woodward's case,2 East’s P. 268; Lib. Plac. 14.

C. 653. («) Ibid.
(q) Clarke v. Roe, 4 Ir. C. L. (v) Broadwater v. Blot, Holt, 547;
Rep. 7. 17 R. R. 677. Also per Byles, J.,

(7) Rex v. Smith, 1 Mood, C.C. — Marfell v. South Wales Rail. Co.,
473. 8 C. B., N.S. 525.
AGISTER.

of agistment of a mare to be agisted in a field which was
separated by a wire fence from another field in the occupa-
tion of a cricket club; and it was alleged that, owing to the
negligence of the agister’s servant in leaving open a gate
between the two fields, the mare had escaped from the
field in which she was placed into the cricket field, where-
upon certain members of the club endeavoured in a careful
and proper manner to drive her back through the gate;
but the mare refused to go through the gate, and having
run against the wire fence fell over it, and was injured by
one of the iron standards. It was held that the injury
to the mare was the natural consequence of the gate
having been left open, and that the agister was liable (zw).

So, too, if the fences were in an improper state when the
horse was taken in to agist, or if the party taking it in,
did not apply that care and diligence to its custody, even
though it be taken in gratuitously (x), which the owner
had a right to expect (v); as where, from not properly
Jencing a pond, the horse stuck in the mud and died, the
agister is answerable for such negligence (y). But where
a horse fell through some rotten boards into a cesspool and
was injured, it was doubted by Willes, J., whether the
defendant was liable (z).

In the case of Gaunt v. Smith (a), tried before Pollock,
C.B., which was an action brought against an agister for
negligence in the care of the plaintiff’s pony, which was
kicked and damaged during its agistment by a horse, whose
shoes had not been taken off, there being no evidence that
the defendant knew the horse to be vicious, the plaintiff
was nonsuited. But it must not be supposed from this
ruling that the doctrine of scienter has any application to
an alleged breach of contract of agistment, except, perhaps,
in so far as the knowledge of the agister of the ferocious
character of the animal causing the injury may be evidence
of negligence ; for the contract of agistment is a contract
to take reasonable care, and he is, therefore, not exempt

(w) Halestrap v. Gregory, [1895]
1 Q. B. 561; 64 L. J., Q. B. 415;
72 L. T.,N. 8. 292; 43 W. R. 507.

(x) Rooth v. Wilson, 1 B. & Ald.
59; 18 R. R. 431.

(y) Povey v. Purnell, before Chief
Justice Jervis, C. P., N. P., Dec. 6,
18538. And see Groucott v. Wil-
liams, 32 L. J., Q. B. 287, in which
it was held that injury done to a

0.

horse when grazing in a field, by
falling down a shaft, which was
improperly fenced by the defen-
dants, who were in occupation of the
minerals under the field, was action-
able.

(2) Stacey v. Livesay, C. P., N.P.,
Noy. 14, 1856.

(a) Gaunt v. Smith, N. P., Ex.,
Dec. 11, 1856.

Q

225

Fences out of
order, &c.

Injury by
another
horse, &c.
226

The horse’s
condition.

Eatage let for
a certain
time,

LIVERY-STABLE KEEPERS, AGISTERS, ETC.

from liability merely on the ground that he did not know
that the animal causing the injury was ferocious. This
statement would appear to be fully justified by the decision
of the Queen’s Bench Division in the case of Smith v.
Cook (b), the facts of which were as follows :—An agister of
cattle placed a horse in a field with a number of heifers,
knowing that a bull, kept on adjoining land, had several
times been found in the adjoining field, and there was no
sufficient fence to keep it out. He did not, however, know
that the bull was of a mischievous disposition. The horse
was gored by the bull and killed; and in an action by the
owner of the horse against the agister for breach of con-
tract to take reasonable care, the jury found for the
plaintiff. It was held that the fact that the ayister had no
knowledge of the mischievous disposition of the particular
bull was no ground for disturbing the verdict, as such know-
ledge was not essential to his liability under his contract
as an agister to take reasonable care of the horse.

It is only just, that if A. send his horse to B. to be kept
for him at grass for a certain time, B. should be answerable
to him, if the horse when returned appear in worse con-
dition than horses usually are under such circumstances,
unless B. show that the horse has been in a good pasture,
and therefore that the falling off must have arisen from
some fault m his constitution. But were B. to agree to
take in A.’s horse as one of ten to graze on a certain field,
in that case B. would not be answerable, if A.’s horse
fell off in condition in consequence of the field being eaten
bare.

It will be seen by a comparatively modern case that on
a demise of land or the vesture of land (as the eatage of a
field) for a specific term at a certain rent, there is no implied
obligation on the part of the lessor that it shall be fit for
the purpose for which it is taken. Therefore, where A. had
agreed in writing to take the eatage of twenty-four acres
of land from B. for seven months, at a rent of 40/., and
then stocked the land with beasts, several of which died a
few days afterwards, from the effect of a poisonous sub-
stance, which had accidentally been spread over the field
without B.’s knowledge among some manure; the Court
of Exchequer held that A. was not entitled on that account
to throw up the land, but continued liable for the whole
rent. Mr. Baron Parke saying, in the course of the argu-

(8) 1Q.B D.79; 45L.J., Q. B. 122; 33 L. TN. 8. 722.
AGISTER.

ment, “It comes simply to the question, whether there is
an implied undertaking that the grass shall be fit for the
eatage of cattle; if there is, cadit questio; if not, the
plaintiff has performed his engagement, and the defendant
has had all he bargained for, namely, a demise of the
eatage for six months, and must pay for all’? (¢).

If a man take in horses, kine or other cattle to depasture,
on a contract at so much a head per week, he cannot detain
them for the value of the agistment, unless there is a special
agreement to that effect (d). And the law on this subject
was laid down and explained in the case of Jackson v.
Cummins (e), 11 which Mr. Baron Parke said, “I think
that by the common law no lien exists in the case of agist-
ment. The general rule as laid down by Best, CJ., in
Bevan v. Waters(f), and by this Court in Scarfe v.
Morgan (g), is, that by the general law, in the absence of
any special agreement, whenever a party has expended
labour and skill in the improvement of a chattel bailed to
him, he has a lien upon it. Now, the case of agistment
does not fall within that principle, inasmuch as the agister
does not confer any additional value on the article either by
the exertion of any skill of his own, or indirectly by means
of any instrument in his possession, as was the case with
the stallion in Scarfe v. Morgan (g); he simply takes in
the animal to feed it. In addition to which we have the
express authority of Chapman vy. Allen (h), that an agister
has no lien; and although possibly that case may have
been decided on the special ground that there had been an
agreement between the parties, or a conversion of the
animal had taken place, still it is also quite possible that it
might have proceeded on the more general principle that
no lien can exist in the case of agistment; and it was so
understood in this Court in Judson v. Ethridge (i). The
analogy also of the case of the livery-stable keeper who has
no lien by law, furnishes an additional reason why none
can exist here; for this is a case of an agistment of milch
cows, and from the very nature of the subject-matter, the
owner is to have possession of them during the time of

(ec) Sutton v. Temple, 12M. & W. 520; M. & M. 236.
60. (9) Scarfe v. Morgan, 4M. & W.
(d@) Chapman v. Allen, Cro. Car. 283; 1 Horn & Hurl. 292, . , ;

273; Richards vy. Symons, 8 Q. B. (h) Chapman vy. Allen, Cro. Car.
93. 278.

(e) Jackson v. Cummins, 5M.& W. (i) Judson v. Ethridge, 1 Cr.& M.
342 743,

(7) Bevan v. Waters, 3 C.& P.
Q 2

227

Agister has
no lien.
228

May have a
lien by agree-
ment.

Bankruptcy
of agister.

Horses and
cattle being
agisted are
distrainable.

But not when
taken in to
rest for a
night.

Decisicn of
the Irish

LIVERY-STABLE KEEPERS, AGISTERS, ETC,

milking; which establishes that it was not intended that
the agister was to have the entire possession of the thing
bailed; and there is nothing to show that the owner might
not for that purpose have taken the animals out of the field
wherein they were grazing if he had thought proper so to
do. This claim of lien is therefore inconsistent with the
necessary enjoyment of the property by the owner.”

But where there is a special agreement, there may of
course be a lien(j). Thus the plaintiff having a cow at
grass in defendant’s field, and being indebted for the
agistment, agreed with him that the cow should be security;
that he would not remove her till the defendant was paid,
and that, if he did, the defendant might take her where she
might be, and keep her till he was paid. The plaintiff
removed the cow without having paid the debt, and the
defendant seized her on the high road. In an action of
trespass for the taking, it was held that the agreement might
be set up as a defence under a plea that the cow was not
the plaintiff’s (/).

In Re Woodward, Ex parte Huggins (k), H. placed certain
stock upon the lands of W. upon an agreement whereby the
stock remained the property of H., who, at the end of a
certain period, was to sell the stock; and, after deducting
the original price and a percentage for profit, to hand over
the balance to W. During the continuance of the agree-
ment W. became bankrupt, and the trustee claimed the
stock in question as being within the reputed ownership of
the bankrupt. It was held that the custom of agistment
was notorious, and that being the case, that no reputation
of ownership could arise in the case of stock on the lands of
a farmer.

Horses and cattle put into a close to be agisted are liable
at common law to be taken in distress by the landlord, the
general rule being that all things on the land are distrain-
able for rent in arrear (/).

Horses or cattle driven to a distant market, and put into
land to rest for one night, cannot be distrained for rent by
the owner of the land, such protection being absolutely
necessary for the public interests (2).

Thus it was held in the Irish Court of Queen’s Bench,

(J) Richards vy. Symons, 8 Q. B.  p.8,n. 4.
90. (m) Tate v. Gleed, C. B., H. T.,
k) 54 L. T., N. 8. 683. 24 Geo.3. And see Poole v. Longuevill,
2) Jones v. Powell,6 B.&C.650; 2 Wms. Saund. 290, u. (7).
8D. & R, 416; 3 Christ. Bla. Com.
AGISTER.

that certain cattle belonging to a drover on their way to
a market for the purpose of being sold there, and put to
graze for one night, immediately before the morning on
which the market was to take place, were privileged from
distress by the landlord, for rent due to him out of the
place in which they fed (7).

The settled distinction seems to be, that where a
stranger’s cattle escape into another’s land by breaking the
fences, where there is no defect in them, or if the tenant of
the land where the distress is taken is not bound to repair
the fences, though there is a defect in them, the cattle may
be distrained for rent whether they are devant et couchant or
not. If, however, the cattle escape through the defect of
fences which the tenant of the land is bound to repair,
they cannot be distrained by the landlord for rent, though
they have been devant et couchant, unless the owner of the
cattle, after notice that they were on the land, neglects or
refuses to drive them away (0).

But live stock agisted on a holding to which the Agri-
cultural Holdings Act, 1883 (46 & 47 Vict. c. 61), applies,
enjoy a limited privilege from distress by virtue of
section 45 of that Act, which enacts as follows :—

“Where live stock belonging to another person has been
taken in by the tenant of a holding to which this Act
pplies to be fed at a fair price agreed to be paid for such
teeding by the owner of such stock to the tenant, such stock
shall not be distrained by the landlord for rent where there
is other sufficient 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
umount 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 dis-
trainer shall be in full discharge 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

(n) Nugent v. Kirwan, 1 Jebb &  Saund. 290. And see 2 Lutw. 1580 ;
Symes, 97 (Q. B. Ir.). Gilb. Dist. 34, 2nd ed. Seo also
(0) Poole vy. Longuevill, 2 Wms. Woolrych on Fences, 309, 310.

229

Court of
Queen’s
Bench.

Distinction
where cattle
enter by
breaking
fences.

Limitation of
distress under
the Agricultu-
ral Holdings
Act.
230 LIVERY-STABLE KEEPERS, AGISTERS, ETC.

the right to distrain such portion shall continue to the full
extent of the price originally agreed to be paid for the
feeding of the whole of such hive stock, or if part of such
price has been bond fide paid to the tenant under the agree-
ment, then to the full extent of the price then remaiming
unpaid.” ae: ;
Live stock agisted for a fair equivalent is within this
section, as taken in to be fed at a “fair price,” and may,
therefore, be exempt from distress, even although such
equivalent be not money. Therefore, where cows were agisted
on the terms “milk for meat,” i.c., that the agister should
take their milk in exchange for their pasturage, it was held
that the agistment was within the Act(p). But otherwise,
where cattle were distrained on a holding pursuant to an
agreement by which the tenant, in consideration of 2d,
allowed the owner “the exclusive right to feed the grass on
the land for four weeks,” as there the tenant did not agree
to “take in” or to “feed” the cattle, and the sum he was
to receive was not the “ price” of the feed of the cattle, but
a payment in the nature of rent for use and occupation (¢).

Remedy for By section 46 it is enacted that ‘“‘where any dispute
el arises—

(a) in respect of any distress having been levied con-
trary 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 dis-
tress 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 unlaw-
fully distrained, or may declare the price agreed to be paid
in the case where the price of the feeding is required to be
ascertained, 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 Sum-
mary 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
(p) London and Yorkshire Bank (q) Masters v. Green, 20Q. B. D.

vy. Belton, 15 Q. B.D. 457; 54 L.J., 807; 59 L. T., N.S. 476.
Q. B. 568.
HIRING HORSES.

giving such security to the other party as the Court may
think just, appeal to a Court of General or Quarter
Sessions,

Hiring Horses.

Letting for Hire is a bailment of a thing to be used by
the hirer, for a compensation in money (7).

If a horse or carriage be let out for hire for the purpose
of performing a particular journey, the party letting
warrants that the horse or carriage, as it may be, is fit and
proper and competent for such journey (s).

The fact that the defendant has taken all reasonable
and proper care to provide a fit and proper carriage is not
sufficient; it is his duty to supply a carriage as fit for the
purpose for which it was hired as care and skill can render
it, and this was so held in the recent case of Hyman v.
Nye (¢), in which the point was very fully discussed. In
that case the plaintiff hired from the defendant, a job-
master, for a specified journey a carriage, a pair of horses,
and a driver. During the journey a bolt in the underpart
of the carriage broke, the splinter bar became displaced, the
horses started off, the carriage was upset, and the plaintiff
injured. In an action against the defendant for negligence,
the jury were directed that, if in their opinion the defen-
dant took all reasonable care to provide a fit and proper
carriage, their verdict ought to be for him. The jury found
a verdict for the defendant, and in particular that the
carriage was reasonably fit for the purpose for which it was
hired, and that the defect in the bolt could not have been
discovered by the defendant by ordinary care and attention.
A rule having been obtained, calling upon the defendant to
show cause why there should not be a new trial on the
ground of misdirection, and that the verdict was against the
weight of the evidence, Lindley, J., in the course of his
judgment said, “A careful study of [the] authorities leads
me to the conclusion that the learned judge at the trial put
the duty of the defendant too low. A person who lets out
carriages is not, in my opinion, responsible for all defects,
discoverable or not; he is not an insurer against all defects;
nor is he bound to take more care than coach proprietors,
or railway companies who provide carriages for the public

(r) Jones on Bailments, 118. () 6Q. B. D. 685; 44 L. T., N.
(s) Per Pollock, C.B., Chew v. 8. 919; 55 J. P. 554. See also
Jones, 10 L. T. 281. Jones v. Page, 15 L. T., N. 8. 619.

231

Letting for
hire.
Warranty of

fitness for
journey.

Hyman v.
Nye.
232

Selecting a
particular
carriave.

LIVERY-STABLE KEEPERS, AGISTERS, ETC,

to travel in; but, in my opinion, he is bound to take as
much care as they; and although not an insurer against
all defects, he is an insurer against all defects which care
and skill can guard against. His duty appears to me to be
to supply a carriage as fit for the purpose for which it 1s
hired as care and skill can render 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, and not preventible by any care or skill.
If he can prove this, as the defendant did in Christie v.
Griggs (w), and as the railway company did in Readhead v.
Midland Rail. Co. (v), he will not be liable; but no proof
short of this will exonerate him. Nor does it appear to
me to be at all unreasonable to exact such vigilance from a
person who makes it his business to let out carriages for
hire. As between him and the hirer the risk of defects in
the carriage, so far as skill and care can avoid them, ought
to be thrown on the owner of the carriage. The hirer
trusts: him to supply a fit and proper carriage; the lender
has it in his power not only to see that it is in a proper
state, and to keep it so, and thus to protect himself from
risk, but also to charge his customers enough to cover his
expenses.

“Such being, in my opinion, the law applicable to the
case, it follows that the direction given to the jury did not
go far enough, and that it was not sufficient, in order to
exonerate the defendant from liability, for him to prove
that he did not know of any defect in the bolt, had no
reason to suppose it was weak, and could not see that it
was by an ordinary inspection of the carriage. It further
follows that, in my opinion, the evidence was not such as
to warrant the finding that the carriage was in a fit and
proper state when it left the defendant’s yard.” And
Mathew, J., coming to the same conclusion, a new trial was
ordered accordingly.

A person who, on hiring a carriage, looks at it merely to
test _1ts capacity to hold a certain number of persons, does
not by so doing, select it so as thereby to relieve the party
letting it to hire from liability with respect to its safety (2).
‘The question whether the owner would be relieved from

(wv) 2 Camp. £0; 11 R. BR. 666. (w) Jones v. Page, 15 L.T.,N.8.
(vo) L. B.,2Q.B. 412; 36L.J., 619.
Q. B. 181.
HIRING HORSES.

liability if the hirer had selected the carriage after examin-
ing it with a view to ascertain its fitness, does not appear to
have been decided, but it is clear that he would be so
relieved if the Aérer had selected it, notwithstanding the
existence of patent defects.

Even if a particular horse has been selected out of the
owner’s stables, it makes no difference, as it must be sup-
posed that all are fit for their work (z).

But if a horse is hired for one purpose, and is used for
another, and the horse when thus used is injured, the hirer
is lable for the damage thus occasioned. Accordingly
where a horse was hired as a lady’s riding horse, the Airey
was held to be liable for damage occasioned when trying
him in harness (y).

In contracts reciprocally beneficial to both parties, such
as hiring, &c., such care is exacted, as every prudent man
commonly takes of his own goods; and by consequence the
hirer is answerable for ordinary neglect (3). If therefore a
man so treat and manage his Aired horse as any prudent man
would act towards his own horse, he is not answerable for
any damage the horse may receive (a).

If a hired horse is injured owing to the negligence of the
hirer’s servant, the hirer will be liable to make good the
damage to the owner. Thus where the coachman of
the hirer of a horse and carriage instead of taking them,
as was his duty, to the stable, drove for his own purposes in
another direction, and while he was thus engaged the horse
and carriage were injured, owing to his negligent driving ;
it was held that there had been a breach of the hirer’s
contract as bailee, for which he was liable (6).

Where the plaintiff declared that, at the defendant’s
request, he delivered a mare to the defendant to be pru-
dently ridden, and the defendant injured her, it was held
that he might plead his infancy in bar, as the action was
founded on a contract (c).

But where it is clear, from the statement of claim, the
whole of which must be looked at in order to see whether
the action is substantially founded in tort or in contract,
that the plaintiff claims damages for a tort; and that in

(x) Chew v. Jones, 10 L. T. 231, (a) Cooper v. Burton, 3 Camp.,
308. n.; 13 R. R. 736. ;
(y) Gapp v. Giandonati, C. P., (b) Coupé Co. v. Muddick, [1891]

2Q. B. 413; 60 L. J., Q. B. 676.
(e) Jennings v. Rundall, 8D. & R.
330.

., Nov. 14, 1857, coram Cress-
well, J.
J

(z

N.P
) ones on Bailments, 25.

233

Where a par-
ticular horse
is selected.

But a horse
should not

be used for a
purpose other
than that for
which it was
hired.

What care is
required.

Liability of
hirer for
negligence of
servant.

Infancy good
defence to an
action on
contract.

Secus where
action founded
in tort.
234

Where hirer
is answerable
at all events.

Unnecessary
deviation.

Where negli-

gence must
be proved.

Where horse
falls lame.

Where the
horse is ex-
hausted.

LIVERY-STABLE KEEPERS, AGISTERS, ETC.

addition to breaking the contract, the defendant by driving
the horse at an excessive speed, and unduly flogging and
otherwise illtreating and negligently and carelessly using
him, has committed a separate and independent wrong
apart from the contract, he will be liable for that wrong
in the action, and the plea of infancy will afford no
defence (d).

A hirer is answerable at all events, if he keep the thing
hired, after the stipulated time, or use it differently from
his agreement (e).

If a man hire a horse to go from A. to B., he ought
to go by the usual road, and should not unnecessarily
deviate from the usual and customary way. And if he
make a material deviation, and any damage ensues, he
would appear to be liable for it at all events (/).

Where there has been no material deviation, and the
horse has not been kept after any stipulated time, there
must be positive proof of negligence, to fix the hirer.
For instance, if an action is brought against him for using
a hired horse so negligently that it broke its knees, it will
not be sufficient for the plaintiff merely to show that the
horse was a good horse, and not in the habit of falling (g).

Tf the horse falls lame on the journey, the Airer may
abandon him at any place where he turns out unfit, and
give notice of that fact to the party letting him out, whose
duty it is to send for him (A).

Where the strength of a horse which has been hired
or borrowed is exhausted, and it has refused its feed, the
hirer or borrower has no right to pursue his journey with
it. This was so held in Bray v. Mayne (i), where a
person had a horse on trial for some days on condition
that he should pay 10/. for its hire if he did not like it.
The horse at that time had a slight cold, but on the last
day of trial, after the horse had been driven twenty miles,
it was discovered that there was a swelling under its
throat and it refused its feed. The defendant, however,
drove it on to London, which was about twelve miles
further, notwithstanding that it was much distressed during
part of the journey; and when brought to the plaintiffs

(d) Walley v. Holt, 35 L. T.,  5,n.; 13 R. R. 736.
N.S. 681. (k) Per Pollock, C.B., Chew v.
(c) Jones on Bailments, 121. Jones, 10 L. T., Ex. 231.
(f) See Davis v. Barrett, 6 Bing. (t) Bray v. Mayne, 1 Gow, 1; 21
716, R. R. 786.

(g) Cooper v. Burton, 3 Camp.
HIRING HORSES,

stables, it was
delivered.

_A veterinary surgeon in his evidence said that he con-
sidered it a want of proper care and attention to compel
a horse to pursue his journey after it had been driven
twenty miles, and had then refused its feed ; and Chiet
Justice Dallas directed the jury accordingly (x).

His Lordship also held that the defendant was not en-
titled to return the horse on payment of 10/., because as
the horse, on being retumed, was in a worse state than
when originally delivered, the condition on which it was
delivered had not been fulfilled (A).

If a hired horse is taken sick on the journey agreed upon,
without the fault of the hirer, its cure is at the expense of
the owner (0).

But if the hirer prescribes medicines for it, he is answer-
able for any improper treatment, but not if he call in a
Jarrier. Thus, where a horse had been hired of the
plaintiff by the defendant, who, on the horse having been
taken ill, prescribed improper medicines for it, and the
horse died, Lord Ellenborough said, ‘‘Had the defendant
called in a farrier, he would no¢é have been answerable for
the medicines the latter might have administered; but
when he prescribes himself, he assumes a new degree of
responsibility ; and prescribing so improperly, I think he
did not exercise that degree of care which might be ex-
pected from a prudent man towards his horse, and was in
consequence guilty of a breach of the implied undertaking
he entered into when he hired the horse from the
plaintiff (m).

Pothier says, that where a horse is let to one on hire, to be
kept by him for a certain period, the hirer is to pay for his
shoeing during that time. But that it is otherwise, if a
person lets his coach and horses to another for a journey,
to be driven by his own servants (7).

A bailee of goods for hire, by selling them determines
the bailment, and the bailor may maintain ¢rover against
the purchaser, though the purchase was lond fide (0).
Thus, where a person hired a horse and sold it to a third
party, it was held by Mr. Justice Bosanquet that the owner
might recover its value from the purchaser, although he

in much worse condition than when

R. R. 735.

-(n) See Pothier, Louage, pp. 107,
129; Story on Bailments, 258.

(0) Cooper. Willomatt,1C. B. 672.

(k) Ibid.

(2) Pothier, Louage, p. 129 ; Story
on Bailments, 258.

in) Deanv. Keate, 3 Camp.4; 13

Where the
horse refuses
its feed.

Where the
horse is re-
turned in
worse con-
dition.

Expenses of
curing sick
horse.

Where the
horse is im-
properly
doctored.

Who must
pay for shoe-

ing.

Bailment de-
termined by
selling the
goods.
236

Where the
horse is
stolen from
the hirer.

Where the
horse is stolen
by the hirer.

Must have
been origi-

LIVERY-STABLE KEEPERS, AGISTERS, ETC.

had acted bond fide, and had given the hirer the full value
for it, as the hirer could give him no better title than he
got himself (p). ;

If through the hirer’s negligence, as by leaving the
door of his stable open at night, the horse be stolen, he
must answer for it; but not if he be robbed of it by high-
waymen, unless by his imprudence he gave occasion to the
robbery, as by travelling at unusual hours, or by taking an
unusual road. The iver is liable in the same way for the
negligence of his servant when acting under his directions
either express or implied (¢).

If a person gets a horse out of the possession of the owner
under the pretence of hiring it, and then go and offer it
for sale, there will be no felony at common law until the
sale is actually effected. In the following case the
prisoner was indicted for stealing a horse and gig which
he had hired of a livery-stable keeper in Stratford Mews,
near Manchester Square, London. It appeared that he
drove it off for some distance, and offered it for sale at a
small price to an innkeeper, who, under pretence of getting
him the money, procured a constable and gave him into
custody (r).

On the trial Pear’s case (s), Charlewood’s case (t) and
Senple’s case (wu) were referred to, and the following passage
from the latter quoted :—‘ But, on the other hand, if the
hiring was only a pretence made use of to get the chaise out
of the possession of the owner, without any intention to
restore it, or pay for it, in that case the law supposes the
possession still to reside with the owner, though the pro-
perty itself has gone out of his hands, and then the sub-
sequent conversion will be the felony.”

And Chief Justice ‘Tindal said, “This case comes near
to many of those which have decided that the appropria-
tion of property, under circumstances in some degree
similar to the present, amounts to larceny. However,
there has been no actual conversion of the property, but
only an offer to sell; therefore the prisoner must be ac-
quitted (x).

If the owner parts with the possession of a horse for a

(p) Shelly v. Ford, 5 C. & P. (s) Pear’s case, 1 Leach, 212.
313. See also Marner v. Banks, 17 (t) Charlewood’s case, 1 Leach, 409.
L. T., N. 8.147; 16 W. R. 62; and (x) Semple’s case, 1 Leach, 420.
see Stolen Horses, ante, Chap. III. (z) Reg. v. Brovks, 8 C. & P. 295.

(q) Jones on Bailments, 88. But see post.

(r) Reg. v. Brooks, 8 C.& P. 295.
HIRING HORSES.

special purpose, and the bailee, when that purpose is exe-
cuted, neglects to return it, and afterwards disposes of it;
if he had not a felonious intention when he originally took
it, his subsequent withholding and disposing of it will not,
at common law, constitute a new felonious taking, or make
him guilty of felony (y).

But these questions will not now arise in cases of the
kind just referred to, as by 24 & 25 Vict. c 96, s. 8,
the fraudulent appropriation of property by bailees is
declared to be larceny, and may be the subject of an indict-
ment for larceny.

Of course a person is liable to pay for horses used by
himself and hired on his behalf by his servant. Thus, if
a coachman go in his master’s livery, and hire horses which
his master uses, the master will be bound to pay for the
hire of the horses, though he has agreed with the coachman
that he will pay him a large salary to provide horses,
unless the person letting the horses had some notice that
the coachman hired them on his own account, and not for
his master (s); for wherever one of two innocent persons
must suffer by the acts of a third, he who has enabled such
third person to occasion the loss, must sustain it (a).

In general the owner of a horse is liable for any acci-
dent which may befall it when fairly used by the irer (0).
Thus, where a carriage is let for hire, and it breaks down
on the journey, the person who lets it is liable, and not the
hirer (c); unless it breaks down through some act.of the
hirer, which is not within the contract (d). And we shall
see in a variety of cases, what are the circumstances under
which owners have been held liable for damage, inflicted
through the negligent use of carriages or horses they have
let for hire.

If a man hire a carriage and any number of horses, and
the owner send with him his postilion or coachman, the hirer
is discharged from all attention to the horses, and remains
obliged only to take ordinary care of the glasses and inside
of the carriage while he sits in it, and he is not answer-
able for any damage done by the negligence of the owner’s
servants (¢).

(y) Rex v. Banks, R.& R. 441. F. 152; and Holmes v. Onion, 2 C.
But see post. B., N. 8. 790.

(2) Rimell v. Sampayo, 1 C. & P. (ce) Sutton v. Temple, 12 M.& W.
254. 60.

(a) Per Ashurst, J., Lickdarrow v. (d) Lygo v. Newbolt, 23 L. J.,
Mason, 2T. R. 70; 1B. R. 42. Ex. 108,

(2) See Ardon v. Fussell, 3 F. & (¢) Jones on Bailments, 83;

237

nally taken
with a telo-
nious intention
at common
law.

Now bailee
indictable for
larceny by

24 & 26 Vict.
c. 96.

Horse hired
by a servant.

Owner’s lia-
bility in case
of accident.

Horses
driven by the
owner’s ser-
vants.
238

Horses
driven by
the owner’s
servants to a

certain place.

Travelling
post.

Horses
driven about
town by the
owner’s ser-
vant,

Laugher v.
Pointer.

Owner held
liable in

LIVERY-STABLE KEEPERS, AGISTERS, ETC,

Where horses are hired to draw a private carriage to a
certain place, and they are driven by the owner’s servants,
the owner is liable for any damage done through the ser-
vants’ negligence. For where a person hired horses to
take his own carriage to Epsom, and he was driven by the
owner’s postboys, Lord Ellenborough held that a person
who hires horses under such circumstances has not the
entire management and power over them, but that they
continue under the control and power of the servants who
are entrusted with the driving; and that the owner of them
would be answerable for any accident occasioned by the
postboys’ misconduct on the road; and his lordship men-
tioned a case of the kind, in which damages were recovered
against the owner of a chaise for an injury done by it when
Mr. Burton, a Welsh judge, was in it, and who was called
as a witness (/).

And where horses were hired to draw a private carriage
to Windsor, the owner of the horses was held liable for
damage done, because they were under the care and direc-
tion of his servant (9).

And in the case of Sir Henry Hoghton (2), horses were
hired by him to draw his carriage, travelling post, and he
was held not to be answerable for damage which had been
done.

But where horses have been hired to be driven about by
the owner's servant wherever the hirer pleases, and for which
he gives him some gratuity, there seems at one time to
have been a difference of opinion among the judges as to
the party liable for injury done.

In Laugher v. Pointer (i), where the able judgments on
both sides, as is observed by Mr. Justice Story in his book
on Agency, “ exhausted the whole learning of the subject,”
the judges of the Court of King’s Bench were equally
divided, Chief Justice Abbott and Mr. Justice Littledale
holding that the fAirer of the horses was not liable for an
injury done, and Mr. Justice Bayley and Mr. Justice
Holroyd being of the contrary opinion.

In the case of Quarman v. Burnett (k), the owners of

Samuel v. Wright, 5 Esp. 268; 3B. & C. 556.

Smith v. Lawrence, 2M. & R.1. (‘) Laugher v. Pointer, 5 B. & C.
(f) Dean vy. Branthwaite,5 Esp. 588.

35; and quoted by Mr. Justice (k) Quarman v. Burnett, 6 M. &

Littledale in Laugher v. Pointer, 5 W.499. See also Jones v. Corpora-

B. & C. 558. tion of Liverpool, 14 Q. B. D. 890;
(g) Samuelv. Wright, 5 Esp.263. 54 L.J., Q. B. 345; 33 W. R. 551.
(A) Sir H. Hoghton’s case, cited 5
HIRING HORSES,

the carriage had always been driven by the same driver,
he being the only regular coachman in the employ of the
owner of the horses, who paid him regular weekly wages.
The owners of the carriage paid him 2s. a drive, and
provided him with livery, which he left at their house at
the end of each drive. Mr, Baron Parke said, “It appears
to us that there are no special circumstances which dis-
tinguish the present case, and that we must decide the
difference between the judges in Laugher v. Pointer (1),
There is no satisfactory evidence of any selection by which
this man was made the defendant’s servant; the question
is therefore the same as in that case. If the driver be the
servant of a jobmaster, we do not think he ceases to be so
by reason of the owner of the carriage preferring to be
driven by that particular servant, where there is a choice
amongst more, any more than a hack postboy ceases to be
the servant of an innkeeper, where a traveller has a par-
ticular preference to one over the rest, on account of his
sobriety and carefulness. If, indeed, the defendants had
insisted upon the horses being driven not by one of the regular
servants, but by a stranger to the jobmaster, appointed by
themselves, it would have made all the difference.”

“The fact of the coachman wearing the defendant’s
livery with their consent, and so being the means of in-
ducing third persons to believe that he was their servant,
was mentioned in the course of argument as a ground of
liability, but cannot affect our decision. If the defendants
had told the plaintiff that he might sell goods to their
livery servant, and had induced him to contract with the
coachman, on the footing of his really being such servant,
they would have been liable on such contract; but this
representation can only conclude the defendants with
respect to those who have altered their condition on the
taith of its being true. In the present case it is matter of
evidence only of the man being their servant, which the
tact at once answers. We have fully considered the judg-
ments on both sides in Laugher v. Pointer (m), and think
that the weight of authority and legal principle is in favour
of the view taken by Lord Tenterden (n) and Mr. Justice
Littledale.” ;

A person jobbing a carriage by the year under a written
agreement, by which the owner binds himself “to keep

(2) Laugher vy. Pointer, 5 B. & C. (m) Ibid. .
547. (x) Then Chief Justice Abbott.

239

Quarman v.
Burnett.

Wearing the
hirer’s livery.

A job-
master’s
agreement.
240

Where the
hirer is liable
for damage.

Hirer liable
through his
own conduct,

Hirer liable
where he
might have
controlled his
servant.

M' Laughlin v.
Pryor.

LIVERY-STABLE KEEPERS, AGISTERS, ETC.

the same in perfect repair without any further charges
whatever,” is not liable for repairs made necessary by
accident. And ina case where the owner had so bound
himself, Lord Denman said, “ Looking at the terms of the
agreement, it seems to me that the only case in which
the defendant could be subjected to the expense of repairs
is the case of damage happening through the wilful default
of the defendant. With regard to the evidence of the
usage of the trade, the language of the agreement between
the parties beg clear and unequivocal, evidence as to the
general usage of the trade cannot be of any avail” (0).

The hirer of a horse or carriage is liable for damage
occasioned by the negligence of himself or his servant ; and
where two persons hire a carriage, they are both answerable
for any damage occasioned by the negligent driving of one
of them; but if it be hired by one only, the other, who is
a mere passenger, is not liable (p).

It is undoubtedly true that there may be special circum-
stances which may render the hirer of job horses and ser-
vants responsible for the neglect of a servant, though not
liable by virtue of the general relation of master and servant.
Thus, he may become so by his own conduct, as by taking
the actual management of the horses, or ordering the ser-
vant to drive in a particular manner which occasions the
damage complained of (¢q).

When a master and servant are together in a carriage,
and an injury ensues, the master, from his mere presence,
is a co-trespasser, if the act of the servant amount to a
trespass (r). Andon this principle where a carriage and
horses are hired, and the postboys are servants of the
owner; if the hirer be sitting outside, and have a view of
their proceedings, and do not interfere to prevent their
nusconduct, and an injury ensues, he is a co-trespasser
with them, because as he did not endeavour to stop their
improper proceedings he has adopted their conduct as
his own.

The Court of Common Pleas entered fully into the
subject, and laid down the law upon it in the case of
M‘Laughlin v. Pryor (s), i which a trespass had been com-

(0) Reading v. Menham, 1 M. & (*) Chandler v. Broughton, 1 Cr.

Rob. 234. & M. 229,
(p) Davy vy. Chamberlayne, 4 Esp. (s) AL\Laughlin v. Pryor, 1 OC. &
229. Marsh. 354; 4 Scott, N. R. 655;

(g) Per Parke, B., Quarman v. 4M. & G. 48.
Burnett, 6M. & W. 499.
HIRING HORSES.

mitted by a carriage and horses hired by the defendant
driving against the plaintiff’s gig. It appeared that the
defendant and seven others were driving in a carriage and
four, with two postillions, to Epsom races on the 38rd of
June, 1840. The defendant with another party sat upon
the box. The carriage was not in the line of the vehicles
which were going through the turnpike at Sutton, and as it
approached the toll-bar the postillions endeavoured to get
into that line, in order that they might pass through the
gate. The plaintiff and a friend of his, Mr. Mason, were
driving in a small gig at that particular place where the
postillions attempted to fall into the line. The man on the
wheel horses said to the other postillion, “Break in, you
are all right there,” and upon doing this the trace of
the leaders of the carriage caught the wheel of the plaintiff's
gig; the gig was upset, and the plaintiff was injured and
rendered lame for life. Immediately before the accident
the defendant called out to his postillions to let the plaintiff’s
gig pass first, but the order then came too late. As soon as
the accident had occurred the carriage was stopped and the
owner’s name demanded; whereupon the defendant, in
order to prevent his party being detained, offered money
to the parties, and eventually gave his card.

On the part of the defendant it was objected, that, even
assuming that the fault lay with the drivers of the carriage,
the defendant was not responsible, neither the horses nor
the carriage being his; or, at all events, that he was not
liable in trespass. Chief Justice Tindal left it to the jury
to say whether the accident was the result of want of skill
or caution on the part of the drivers of the carriage, or on
the part of the owner of the gig—reserving it for the Court
of Common Pleas to say whether, upon the facts proved,
the defendant was liable in this form of action; the jury
returned a verdict for the plaintiff.

The Court of Common Pleas discharged the defendant’s
rule nist for a nonsuit, and Chief Justice Tindal said, “ Un-
doubtedly the cases in which the hirer of a glass-coach or a
post-chaise has been held not to be responsible for the act
of the driver, depend upon grounds wholly different from
those on which the liability of the defendant on this occasion
is to be sustained. It has always been held that the hirer
of the carriage, having no power of selection, no fore-
knowledge of the character of the driver, is not responsible
for any negligence or want of skill or experience on his
part; for that it is the duty of the party who lets, to exercise

oO. R

241

Opinion of
the Court of
Common
Pleas.
242

The general
tule.

Where the
hirer would
not be liable.

Hirer sitting

outside liable.

LIVERY-STABLE KEEPERS, AGISTERS, ETC.

care and caution in the selection of those to whom he
entrusts the government and direction of his horses and his
carriage. But here the question is, whether the evidence
did not show that this defendant so conducted himself as to
be liable as a co-trespasser with the postillions whose conduct
has given rise to this inquiry.”

“The general rule is, that all who are present, and who
from the circumstances may be presumed to be assenting to
the wrongful act, are trespassers. In trespass all are princi-
pals. I think there was abundant evidence to justify the
jury in coming to the conclusion they did. In the first
place the defendant was present, sitting on the box of the
carriage ; and when he saw that the carriage was out of the
line, he must have known that the postboys intended to get
into it again whenever they found an opportunity, so as to
be enabled to pass through the toll-gate.”

‘Had the defendant at that time expostulated, I hesitate
not to say that he would not have been a trespasser, what-
ever might have ensued; for no servant can against his
master’s wild make him a trespasser by any wrongtul act of
his. Had he expressed any, the slightest disapprobation
of the course the postboys were evidently pursuing, he
would have escaped all liability; or if the defendant
and his friends had all been inside the carriage, so that
they could not be supposed to be well aware of what was
going on, the plaintiff must have sought his remedy else-
where.”

“But being, or some of them being, on the outside, and
seeing the improper manner in which the postboys were
endeavouring to get on, and, though not actually encourag-
ing them in their unlawful course, yet abstaining from all
interposition to restrain them, this, though not very strong,
certainly was some evidence whence the jury might properly
infer that the defendant assented to that course. But the
evidence does not stop there; for the defendant, some time
after the accident, in a conversation with one of the witnesses,
said that he intended to have stopped when the carriage had
established itself in the line, and allowed the gig to regain
its place. Now that remark showed pretty strongly that
the defendant was exercising control over the motions of the
postboys, and was an assenting party to their act. I there-
fore think the defendant, the dominus pro tempore, being
present and seeing what was going on, and not interfering to
prevent the mischief, must be taken to have been an assent-
ing party ; and that this case falls within the principle laid
HIRING HORSES.

down in Gregory v. Piper (¢) and Ohandler v. Broughton (u),
in which latter case it was held that where master and
servant are together in a vehicle, and an accident occurs,
from which an immediate injury ensues, the master is liable
in trespass and not in case, although the servant was driving,
and not only no evidence was given on the part of the
plaintiff of any interference on the master’s part, but the
evidence on the part of the defendant distinctly negatives
any interference; so that the mere presence of the master
with the servant will constitute him a trespasser, if the act
of the servant amount to a trespass. Upon the whole,
therefore, in this case, I think the jury may have come
justly to the conclusion that the defendant was a co-trespasser
with the postboys.” And in this decision Coltman, Erskine
and Cresswell, Justices, concurred (2).

It is always a question for the jury whether the driver is
acting as servant for the hirer or owner ; and Lord Abinger,
in leaving that point to the jury, observed, “that no satis-
factory dine could be drawn, at which, as a matter of law,
the general owner of a carriage, or rather the general
employer of a driver, ceased to be responsible, and the
temporary hirer to become so; each case of this class must
depend upon its own circumstances” (y).

A hirer may of course, by agreement, make himself
answerable for accidents. Thus in the following case it
appeared that a man who let out horses to hire told a
person who applied to him for one, that he had no horse
at home but a black one which shied, and that if he took it
on hire he must be answerable for all accidents. The horse
was engaged for six weeks at a certain price, and it
appeared that whilst it was in the Airer’s possession it came
down upon the road in consequence of shying, and suffered
a material injury in having its fetlock severely cut by a
glass bottle. The owner of the horse brought an action
against the /irer on his agreement, and the latter was held
answerable for the damage done (z).

(¢) Gregory v. Piper,9 B.& C. 655; 4M. & G. 48.

591; 4M. & R. 500. y) Brady v. Giles, 1 M. & Rob.
(u) Chandler v. Broughton,10.& 496.
. 29. (2) Jeffery v. Walton, 1 Stark.
(a) M‘Laughlin v. Pryor, 1 C.& N.P.C. 267.

Marsh. 354; S. C., 4 Scott, N. R.

243

The jury
must decide
whether the
servant is
acting for the
hirer or
owner.

A hirer’s
agreement.
244

Lending for

‘use.

Duties of
borrower and
lender.

Lender of a
horse.

Must not
conceal
defects.

What care is
required.

As much as
the borrower
is capable of
bestowing.

LIVERY-STABLE KEEPERS, AGISTERS, ETC.

Borrowing Horses.

Lending for use is a bailment of a thing for a certain
time when used by the borrower without paying for it (a).

The duties of the borrower and lender are thus well laid
down by Mr. Justice Coleridge in Blackmore v. Bristol and
Exeter Railway Company (b) :—‘‘ The duties of the lender
and borrower are in some degree correlative. The lender
must be taken to lend for the purpose of a beneficial use by
the borrower; the borrower therefore is not responsible for
reasonable wear and tear; but he is for negligence, for
misuse, for gross want of skill in the use, above all, for
anything which may be defined as legal fraud. So, on the
other hand, as the /euder lends for beneficial use, he must
be responsible for defects in the chattel, with reference to
the use for which he knows the loan is accepted, of which
he is aware, and owing to which directly the borrower is
injured.”

‘“Would it not be monstrous to hold, that if the owner
of a horse, knowing it to be vicious and unmanageable,
should lend it to one ignorant of its bad qualities, and
conceal them from him, and the rider, using ordinary care
and skill, is thrown from it and injured, he should not be
responsible.”

‘‘ By the necessarily implied purpose of the loan a duty
is contracted towards the borrower not to conceal from him
those defects, known to the /ender, which may make the
loan perilous or unprofitable to him.”

In contracts from which a benefit accrues only to him
who has the goods in his custody, as in that of lending for
use, an extraordinary degree of care is demanded, and the
borrower is therefore responsible for slight negligence (¢).

But if the /ender was not deceived, but perfectly knew
the quality as well as age of the borrower, he must be sup-
posed to have demanded no higher care than that of which
such a person was capable ; as if a person lend a fine horse
to a raw youth, he cannot exact the same degree of manage-
ment and circumspection as he would expect from a riding-
master or an officer of dragoons (d).

(a) Jones on Bailments, 118. Exod. xxii. 14, 15.

(b) Blackmore v. Bristol § Exeter (@) Jones on Bailments, 65;
Rail. Co., 27 L. J., Q. B. 167. See  Dumoulin’s Tract—De eo quod
also M‘Carthy v. Young, 3 L. T., — interest, 185; Story on Bailments,
N.S. 785. 161.

(c) Jones on Bailments, 65. See
BORROWING HORSES,

Where a person rides a horse gratuitously at the owner's
request, for the purpose of showing him for sale, he is bound
in so doing to use such skill as he actually possesses, or such
as may be implied from his profession or situation, and he
is equally liable with a borrower for injury done to the
horse while ridden by him. In a case tried before Mr.
Baron Rolfe, it appeared that the plaintiff had entrusted a
horse to the defendant, requesting him to ride it to
Peckham, for the purpose of showing it for sale to a Mr.
Margetson. The defendant accordingly rode the horse to
Peckham, and, for the purpose of showing it, took it into
the East Surrey Race Ground, where Mr. Margetson was
engaged with others playing at cricket; and there in con-
sequence of the slippery nature of the ground, the horse
slipped and fell several times, and in falling broke one of
his knees. It was proved that the defendant was a person
conversant with and skilled in horses.

The learned Judge in summing up left it to the jury to
say whether the nature of the ground was such as to render
it a matter of culpable negligence in the defendant to ride
the horse there; and told them, that under the circum-
stances the defendant being shown to be a person skilled in
the management of horses, was bound to take as much care
of the horse as if he had borrowed it; and that if they
thought the defendant had been negligent in going upon
the ground where the injury was done, or had ridden the
horse carelessly there, they ought to find for the plaintiff,
which they did.

The Court of Exchequer refused a rule for a new trial
applied for on the ground of misdirection. Lord Abinger,
C.B., saying, ‘‘ We must take the summing-up altogether ;
and all it amounts to is, that the defendant was bound to
use such skill and management as he really possessed.
Whether he did so or not, was, as it appears to me, the
proper question for the jury.”

And Mr. Baron Parke said, ‘The defendant was shown
to be a person conversant with horses, and was therefore
bound to use such care and skill as a person conversant
with horses might reasonably be expected to use; if he did
not, he was guilty of negligence.”’

And Mr. Baron Rolfe said, “The distinction I intended
to make between this case and that of a borrower is, that
a gratuitous bailee is only bound to exercise such skill as
he possesses, whereas a hirer or borrower may reasonably
be taken to represent to the party who lets or from whom

245

Showing a
horse for
sale.

A gratuitous
bailee.
246

Nogligence of
a bailee.

Rule as to

negligence of
ratuitous
ailec.

Use strictly
personal.

Cannot be
used by a
servant.

LIVERY-STABLE KEEPERS, AGISTERS, ETC.

he borrows, that he is a person of competent skill. If a
person more skilled knows that to be dangerous which
another, not so skilled as he, does not, surely that makes
a difference in the liability. I said I could see no differ-
ence between negligence and gross negligence—that it was
the same thing with the addition of a vituperative
epithet” (e).

Whether there is a distinction, and what that distinc-
tion is, if there be one, between negligence and gross negli-
gence, is a matter of little importance; but one thing is
settled, that the negligence of a gratuitous bailee, to be
actionable, differs from the negligence which would be
actionable in a bailee, who is not gratuitous, and the dis-
tinction appears to be that a gratuitous bailee is not lable
for simple negligence, for which a borrower would be lable,
but only for such negligence as he is guilty of in spite of
the better skill or knowledge, which he either actually had,
or undertook to have (f).

And the principle upon which he is liable is thus well
laid down in Coggs v. Bernard (g): “Tf a man will enter
upon a thing, and take the trust upon himself, and mis-
carries in the performance of the trust, an action will lie
against him for that; though no one could have compelled
him to do the thing.”

In cases of mere gratuitous loan, the use is to be deemed
strictly a personal favour and contined to the borrower,
unless a more extensive use can be implied from other
circumstances ; such, for instance as lending the horse on
triul. In general it may be said, in the absence of all
coutrolling circumstances, that the use intended by the
parties is the natural and ordinary use for which the thing
is adapted (/).

A borrowed horse cannot be used by a servant. Thus,
where an action of trespass was brought for immoderately
riding the plaintiff’s horse, it appeared that the defendant
had borrowed the animal, and that he and his servant had
ridden it by turns. It was held that the licence was

MeMullen, L. R., 2 P. C. 317.

(ce) IFilson v. Brett, 11 M. & W.
(g) Coggs v. Bernard, 1 Smith’s

113. See also per Willes, J., in

Grill v. General Iron Screw Colliery
Co., L. R., 1 C. P. 612.

(f) Per Pollock, C.B., Beal v.
South Devon Rail. Co.. 6H. & N.
881; Austin v. Manchester Rail.
Co., 10 C. B. 454; Gidblin vy.

L. C. 9th ed. 201 et seq. ; Gidlin v.
MeMullen, L. R., 2 P. C. 317.

(2) Story on Bailments, 161; and
Lord Camoys vy. Scurr, 9 C. & P.
386.
BORROWING HORSES.

annexed to the person of the defendant, and could not be

communicated to another (i).

if a horse or cart, or such other thing as may be used
and delivered again, be used according to the purpose for
which they are lent and they perish, he who owns them
must bear the loss, if they perish not through default of
him who borrowed them, or he made a promise at the time
of delivering to redeliver them safe again (/).

But if they be used in any other manner than according
to the lending, in whatever manner they may perish, if it
be not by default of the owner, the borrower is chargeable
both in law and conscience (/). Thus, if the dorrower,
instead of coming to London, for which purpose the horse
was lent, go towards Bath, or having borrowed him for a
week, keep him for a month, he becomes responsible for
any accident that may befall the horse in his journey to
Bath, or after the expiration of the week (im).

In regard to time, if no particular time is fired a reason-
able time must be intended, keeping in view the objects of
the bailment. If a horse is lent for a journey, it is pre-
sumed to be a loan for the ordinary time consumed in such
a journey, making proper allowance for the ordinary delays
and the ordinary objects of such a journey (v).

But where the borrower of a horse promised to re-deliver
it on request, and the horse died without his default before
request, he was held not liable (0).

. A party who Jorrows a horse is bound to feed t¢ during
the time of the loan (p); and if it is returned out of
condition, the borrower would probably be called upon to
prove that he fed it properly, and that the falling off in
condition did not arise from any neglect on his part (¢).

Where the horse is exhausted and refuses his feed, he must
not be ridden or driven any further (7).

If a man through his own tmprudence has his borrowed
horse killed, by robbers for instance, or by a ruinous house
or stable, in manifest danger of falling, coming on to his
head, the orner is entitled to the price of the horse, but

(0) Williams v. Lloyd, Jones on
Bauments, 179; S. C., nom. W%l-
liams v. Hill, Palm. 548.

(i) Bringlow v. Morrice, 1 Mod.
R. 210; 3 Salk. 271.
(k) Noy’s Maxims, 91.

(2) Ibid. (py) Handford v. Palmer, 2 B. &
(m) Jones on Bailments, 68; Bing. 359.

Coggs v. Bernard, Ld. Raym. 915; (q) Bray v. Mayne, 1 Gow, 1; 21

2 Ld. Raym. 909; 3 Bract. c. 2, R. R. 786. .

s.1; 1 Smith’s L. C. 9th ed. 201. (r) Ibid. And see Hiring Horses,
(n) Story on Bailments, 161. ante, p. 234.

247

Must be used
according to
the lending,

or else the
borrower is
answerable.

Where no
time is fixed
for return.

Redelivery on
request.

Borrower
bound to teed
the horse.

Where the
horse is ex-

hausted.

Where the
horse is
killed.
248

Where the
horse dies

from disease.

Where bor-
rower is
answerable
for damage.

Bailment
ended by
misuser.

LIVERY-STABLE KEEPERS, AGISTERS, ETC.

not if the house or stable were in good condition, and fell
by the violence of a sudden hurricane (s).

Where a borrowed horse dies from disease, the borrower
is not answerable. Thus, in Williams v. Hide et Uxor. (t)
the plaintiff declared that in consideration that he had lent
to the defendant’s wife, dwn sola, a horse to be returned
upon request, she promised to return it upon request, but
had not done so. The defendants pleaded that, before the
request, the horse per diversos morbos i corpore suo
erescentes moritur, and so they could not re-deliver it.
Upon demurrer the defendants had judgment; for, where
the agreement is possible when made, but afterwards
becomes impossible by the act of God, the party is for ever
discharged.

A person borrowing a horse or carriage is answerable
for any damage occasioned by negligent management,
whether done by himself or another person in driving (w).

But the borrower of a horse is not liable to the owner
for an injury due to the negligence of a stranger. Thus,
where the owner of a horse sent it to an auctioneer, with
liberty to use it until sold, and whilst it was being driven
by the bailee’s servant along a highway, it was frightened
by a steam tramcar, which was travelling at an improper
speed, and in consequence fell, plunged, and injured itself, the
accident being wholly due to the negligence of the tramway
company; it was held that the auctioneer could not main-
tain an action to recover the diminution in the value of the
horse, as he was under no lability to the owner for the
injury it had sustained (2).

The rule is, that when there has been a misuser of the
thing lent, as by its destruction or otherwise, there is an
end of the bailment, and an action of trover is maintain-
able for the conversion (y).

(s) Jones on Bailments, 68. ante, p. 240.

) Williams v. Hide et Uxor., (x) Claridge v. South Staffordshire
Palm. 548; cited in Powel v. Salis- Tramway Co.. [1892] 1 Q. B. 422;
bury, 2Y. & J. 3894. 61 L.J., Q. B. 508.

(u) Wheatley v. Patrick, 2 M.& (y) See per Pollock, C.B., Bryant
W. 650. And see Hiring Horses, v. Wardell, 2 Ex. 482.
CHAPTER XII.
CARRYING HORSES.

A common carrier is a person who undertakes for hire to
transport from place to place, either by land or water, the
goods of such persons as think fit to employ him (a).
A person who carries persons only is not a common
carrier (5).

Railway companies are common carriers (c). But their
duties and obligations differ in some respects from those
which attach to common carriers by virtue of the statutes
under which they are constituted, and of other Acts, more
especially the Railway and Canal ‘Traffic Act, 1854 (d).

A common carrier is bound to convey to and from the
places within which he professes to ply (although one of
those places may be without the realm (e) ), the goods of
any person who offers to pay his hire, unless his carriage
be already full, or the risk sought to be imposed upon him
be extraordinary, or unless the goods be of a sort which he
cannot convey, or which he is not in the habit of convey-
ing(f). He is not, in the absence of a special contract,
bound to carry within any given period of time, but only
within a time which is reasonable, regarding all the circum-
stances of the case; and he is not responsible for delay
arising from causes beyond his control (g). He is bound
to deliver the goods safely, and in the same condition as
when they were received; or in default thereof to make
compensation to the owner for any loss or damage which

(d) 17 & 18 Vict. c. 31; see post,

(a) Coggs v. Bernard, 1 Smith’s
L. C. 9th ed. 201; Trent and Mersey
Navigation v. Wood, 3 Esp. 127;
S. C., 4 Doug. 287.

(2) See Coggsv. Bernard, 1 Smith’s
L. C., 9th ed. 201, and cases there
cited.

(c) Coggs v. Bernard, ubi supra;
Palmer v. Grand Junction Canal Co.,
4M. & W. 749; Pickford v. Grand
Junetion Rail. Co.,10 M. & W. 399;
Parker v. Great Western Rail. Co.,
7 Scott, N. R. 835.

p. 255.

(e) Crouch y. London and North
Western Rail. Co., 23 L. J., C. P.
73.

(f) See Coggs v. Burnett, ubi
supra; Pickford v. Grand Junction
Rail. Co.,10 M. & W. 399; Parker
y. Great Western Rail. Co., 7 Scott,
N. R. 835.

(g) Taylor v. Great Northern Rail.
Co., L. R., 10. P. 885; 35 L. J.,
C. P. 210.

A common
carrier.

Railway
companies
ommon
carriers.

°

Duty of
common
carriers.
250

Inherent
vice.

CARRYING HORSES,

happens while the goods are in his custody, except such
loss or damage as arises from the act of God, as storms,
tempests, and the like; or from the Queen’s enemies (jf).
Act of God mcans not merely an accidental circumstance,
but something overwhelming (7), and which “could not
have been prevented by any amount of foresight and pains
and care reasonably to be expected from” the carrier (A).
The liability of railway companies as common carriers of
animals is subject to a further exception in cases where the
injury is the consequence of an inherent vice of the animal
carried, which results in its destruction, without any negli-
gence on their part. The leading case on this subject is
Blower v. Great Western Rail. Co. (1), which was an action
brought in the county court, for the non-delivery of a
bullock which was delivered to them at Dingestow station
to be carried by them to Northampton. In the course of
the journey the animal escaped from the truck in which it
was placed, and was killed. In a case stated by the county
court Judge, it was found that the escape was wholly attri-
butable to the efforts and exertions of the animal itself, and
not to any negligence on the part of the company, and
that the truck was in every respect proper and reasonably
sufficient for the conveyance of cattle ; the Court held that,
upon this state of facts, the Judge ought to have directed a
verdict for the defendants, and Willes, J., in the course of
his judgment, said, “he bullock was received by the
company under the terms of a notice which is assailed by
the plaintiff. It is unnecessary to consider whether or not
the notice was a reasonable one. The question for our
decision is, whether the defendants, upon the facts and
findings of the county court Judge, are liable as common
carriers for the loss of this animal. Whether a railway
company are common carriers of animals is a question upon
which there has been much conflict of opinion, and,
although there may be difficulties in determining that
question, such as induced Lord Wensleydale, in Carr vy.

(hk) Crouch v. Great Western Rail. Ex. 174—C. A.; and Nitro-Phos-
Co., 11 Ex. 742. phate, Se. Manure Co. v. London &§

(i) Oakleyv. Portsmouth, §e. Steam — St. Katharine Docks Co., 3 Ch. D.
Lacket Co., 11 Exch. 6238; 21L.J3., 503; 39 L. T., N. S. 433.
Ex. 101—per Martin, B. () L.R., 7 C. P. 655; 41 L. J.,

(k) Nugent v. Smith, 1 C. P. D.C. P. 268; 27 L. T., N. 8S. 883.
441, 444; 45 L.J.,C. P. 697; 34 And see Clark v. Rochester and Syra-
L. T., N. 8. 827—per James, LJ. cuse Railroad Co., 14 New York,
See also Nichols v. Marsland, L. R., 570; Bissell v. New York Central
10 Ex. 255; 2 Ex. D.1; 46L.J., Railroad Co., 25 New York, 442.
CARRYING HORSES,

Lancashire and Yorkshire Rail. Co. (m), to make the obser-
vations which have elicited remarks from some learned
Judges apparently to the contrary, it may turn out after all
to be a mere controversy of words. The question as to
their liability may turn on the distinction between acci-
dents which happen by reason of some vice inherent in the
animals themselves, or disposition producing unruliness or
phrenzy, and accidents which are not the result of inherent
vice or unruliness of the animals themselves. It comes to
much the same thing whether we say that one who carries
hive animals is not liable in the one event, but is liable in
the other, or that he is not a common carrier of them
at all, because there are some accidents, other than those
falling within the exception of the act of God and the
Queen’s enemies, for which he is not responsible. By the
expression ‘vice,’ I do not, of course, mean moral vice in
the thing itself, or its owner, but only that sort of vice
which, by its internal development, tends to the destruction
or the injury of the animal or thing to be carried, and which
is likely to lead to such a result. If such a cause of destruc-
tion exists, and produces that result in the course of the
journey, the liability of the carrier is necessarily excluded
from the contract between the parties.”

Kendall v. London and South Western Rail. Co. (n) was
an action to recover damages for injuries sustained by the
plaintiff’s horse whilst it was being carried by the defen-
dants on their railway. The cause was tried before Martin,
B., at Guildhall, at the sittings after Hilary Term, 1872.
It appeared that the horse was taken, saddled and bridled,
to the defendants’ station at Waterloo, and was there
delivered to the defendants to be carried to Ewell. It was
attempted to be shown that the defendants’ servants were
guilty of negligence in not fastening up the stirrups; butas
the plaintiff was himself present when the horse was put
into the box, and had, after first objecting, acquiesced in the
stirrups being allowed to hang down; and, as evidence was
also given that the course adopted was usual and proper,
that contention was abandoned.

No accident happened to the train, nor anything likely
to alarm the horse, which was proved: to be a quiet animal
and accustomed to travel by rail; but, at the end of the
journey, the horse was found to have sustained considerable

(m) 7 Ex. 712, 713; 21 L. J., (v) L. R., 7 Ex. 373; 41 L. J.,
Ex, 261. Ex, 184; 26 L. f., N.S. 735.

Proof of.

251
252

CARRYING HORSES,

injuries: and it was in respect of these injuries that the
action was brought.

A verdict was entered for the plaintiff for 317. 10s.,
leave being reserved to the defendants to move to enter the
verdict for them, the Court to have power to draw infer-
ences of fact. A rule having been obtained accordingly, the
Court held, drawing inferences of fact (Martin and Bram-
well, BB., Pigott, B., dissenting), that the defendants were
not liable, since it was to be inferred that the injuries
resulted from the proper vice of the horse. Bramwell, B.,
saying, “There is no doubt that the horse was the imme-
diate cause of its own injuries. That is to say, no person
got into the box and injured it. It slipped or fell, or
kicked, or plunged, or in some way hurt itself. If it did
so from no cause other than its inherent propensities, ‘its
proper vice,’ that is to say, from fright, or temper, or
struggling to keep its legs, the defendants are not liable.
But if it so hurt itself from the defendants’ negligence, or
any misfortune happening to the train, though not through
any negligence of the defendants, as, for instance, from
the horse-box leaving the line owing to some obstruction
maliciously put upon it, then the defendants would, as
insurers, be liable... . . Now it might be a question on
whom, in such a case as the present, the burthen of proof
lay: on the carrier or his employer? But in the actual
case each party has given evidence. ‘The defendants’
witnesses have sworn that the train proceeded on the
journey without disturbance or interruption, and that there
was nothing to excite the horse to do what he did to his
own damage, no cause of mischief except his own inherent
disposition. If this is so the defendants are not liable.
On the other hand, the plaintifi’s witnesses have shown
that the horse was quiet, used to travelling, and therefore,
they say there must have been something extraordinary to
excite the animal. This is a question of fact properly for
a jury, but referred to us. If I am to decide it, I find for
the defendants. The evidence of the plaintiff makes it
improbable it was the proper vice of the horse ; the evidence
of the defendants makes it impossible that it was otherwise.”

The burthen of proof in such cases would appear to
depend upon the question whether or not the defendants
were common carriers of animals. If they were so, it
would be for them to prove that they had not been guilty
of any negligence (0).

(0) Prior vy. London and South Western Rail. Co., 2 Times L. R. 89.
CARRYING HORSES.

In Nugent v. Smith (p), a common carrier by sea from
London to Aberdeen received a mare to be carried to
Aberdeen for hire. In the course of the voyage the ship
encountered rough weather, and the mare received such
injuries that she died. The jury found that the injuries
were caused partly by more than ordinary bad weather,
and partly by the conduct of the mare herself by reason of
fright and consequent struggling, without any negligence
of the carrier’s servants. It was held that the carrier was
not liable for the death of the mare, on the ground that a
carrier does not insure against the irresistible act of nature,
nor against defects in the thing carried itself; and if he
can show that either the act of nature, or the defect of the
thing itself, or both taken together, formed the sole, direct,
and irresistible cause of the loss, he is discharged.

In an action to recover damages for injuries sustained by
the plaintiff’s cattle whilst being carried by the defendants
on their railway, it was held that the plaintiff, who was a
drover, was not an expert competent to give evidence as to
how the injuries were occasioned, and that the onus of
proof being on the plaintiff, and no affirmative evidence
having been given by him of negligence on the part of the
defendants, they were entitled to judgment (¢). But it is
difficult to reconcile this case with Prior v. London and
South Western Rail. Co. (r), except on the assumption that
the company were carrying the animals under a special
contract, which exempted them from their liability as
common carriers.

In Richardson v. North Eastern Rail. Co. (s), it was
assumed, and in Dickson v. Great Northern Rail. Co. (t),
it was expressly decided, that railway companies are not
bound to carry animals, but may limit their business of
carriers in this respect, and may refuse to carry animals
except under special contract. In the former case, the
company had given public notice that they were not
“common carriers of horses, cattle, sheep, pigs, and other
animals,” but would only undertake the carriage of animals
under special contract. A greyhound, having on a leathern
collar with a strap attached, was delivered to the defendants

(p) 10. P. D. 423; 45 TJs, (s) L. R., 7 C. P. 75; 41 L. J.,
C. P. 697; 34 L. T., N.S. 827— C.P. 60; 26L.T., N. 8. 131; and
CLA. see Lake Shore Railroad Co. v.

(q) Smith v. Midland Rail. Co., 57 Perkins, 25 Mich. 329.

L. T.,N. 8. 313; 52 J. P. 262. (é) 18 Q. B. D. 176; 36 L. J.,

(r) Ante, p. 252. Q.B.111; 55 L. T.,N. 8. 868—C.A.

253

Rule applies
to common
carriers by
sea.

Proof in
action for
negligence.

When carriers
may refuse to
carry animals,
254 CARRYING HORSES.

for carriage, and the fare paid. In the course of the
journey there was a change of trains, and the greyhound
was fastened by the strap and collar to an iron spout on the
open platform of the station. While so fastened it slipped
from the collar and ran upon the line, and was killed. It
was held that the fastening of the greyhound by the means
furnished by the owner himself, which at the time appeared
to be sufficient, was no evidence of negligence on the part

of the company.
Onus of proof The onus of proving that damage, happening during

ae transit or while the goods were in the carrier’s hands, was

, occasioned by a cause for which he was not responsible, lies
upon the carrier (w).

ee es All common carriers must carry goods for reasonable

charges. charges, and consequently not take more from one than

from another for the same service. Therefore one customer

or class of customers cannot be charged more than another
customer or class of customers, or the public generally (cv).

Defects in Railway companies, being common carriers, are primd

cammages. facie liable at common law fur defects in their carriages or
trucks, by which damage accrues to the goods entrusted to
them to carry (i).

Aspecialcon- But a special contract entered into with a common

tract to cary. garrier, by the party who delivers goods to be conveyed,
by which contract the carrier is exempted from all liability
for any loss occasioned by his negligence, is binding upon
both parties (x) at common law.

Binding at At one period indeed there was a disposition in our

common law. Courts to hold that common carriers could not by their
notices shake off their common law responsibility; but
Mr. Justice Story says (y):—“The right of making such
qualified acceptances by common carriers seems to have
been asserted in early times. Lord Coke declared it in a
note to Southcote’s case (s), and it was admitted in Morse v.
Slue (a). It is now fully recognized and settled beyond any
reasonable doubt in England.” For this assertion he cites
a number of authorities, and the Court of Common Pleas
held that he had arrived at a correct conclusion ().

(u) Hudson y. Baxendale,2 H.& 618.

N. 575. (x) Carr vy. Lancashire and York-
(v) Johnson v. Midland Rail. Co., shire Rail. Co., 7 Ex. 707.
4 Ex. 367; and Coggs v. Bernard, 1 (y) Story on Bailments, 549.

Smith’s L. C. 9th ed. 201, and cases (2) Sowthcote’s case, 4 Rep. 88.

there cited. (a) Morse v. Slue, 1 Vent. 238.
(w) See Combe v. London and South (2) See judgment of Court of C.

Western Rail. Co., 81 L.T., N.S. P., dustin v. Manchester, Sheffield
CARRYING HORSES.

It being thus established, that the common law liability
of railway companies as common carriers might always be
defeated by the express contracts to carry, which were
embodied in their notices and tickets (¢), the monopoly
enjoyed by them led to their unduly restricting their
hability by special contracts with customers, who could not
afford the time or expense of litigating the right to refuse
to carry except upon such contracts, and thus in many cases
they were enabled to protect themselves against the legal
consequences of the grossest negligence on their part (d).

With the view of remedying the hardships thus occa-
sioned the Railway and Canal Traffic Act was passed in
1854 (e).

By the 7th section of that Act it is enacted that every
such company “shall be liable for the loss of or for any
injury done to any horses, cattle, or other animals, or to any
articles or goods,” “in the receiving, forwarding or deliver-
ing thereof,” “occasioned by the neglect or default of such
company or its servants, notwithstanding any notice, condi-
tion or declaration made and given by such company contrary
thereto, or in anywise limiting such lability; every such
notice, condition or declaration made and given, being
thereby declared to be null and void; provided always, that
nothing herein contained shall be construed to prevent the
said companies from making such conditions with respect to
receiving, forwarding and delivering of any of the said
animals or goods that shall be adjudged by the Court or
Judge, before whom the question relating thereto shall be
tried, to be just and reasonable; provided always, that no
greater damages shall be recovered for the loss or for any
injury done to any such animals,” beyond 50/. for any
horse, 157. per head for any neat cattle, and 2/. per head fur
sheep or pigs: “unless the person sending or delivering the
same to such company shall, at the time of such delivery,
have declared them to be respectively of higher value than
as above mentioned, in which case it shall be lawful for
such company to demand and receive by way of compensa-
tion for the increased risk and care thereby occasioned,
a reasonable percentage upon the excess of the value so

and Lincolnshire Rail. Co.,21L.J.,  pendale v. Lancashire and Yorkshire
C. P. 183. Rail. Co., 21 L. J., Q. B. 22.

(ce) Carr y. Lancashire and York- (a) Garr v. Lancashire and York-
shire Rail. Co., 7 Ex. 707; Austiny. shire Rail. Co., 7 Ex. 707, and cases
Manchester, Sheffield and Lincolnshire there cited. f
Rail. Co., 21 L. J., OC. P. 183; Chip- (ce) 17 & 18 Vict. c. 31.

bo
or
Or

Hardship
thus occa-
sioned.

Remedy
17 & 18 Vict.
ce. 3l.

Company to
be liable not-
withstanding
notices.

Conditions
must be rea-
sonable.

Limitation of
liability.
256

Special con-
tract must be
signed.

Application
of section 7.

Construction
of section 7.

Peek v. North
Staffordshire
Railway Com-
pany.

CARRYING HORSES.

declared above the respective sums so limited as aforesaid,
and which shall be paid in addition to the ordinary rate of
charge.”

It is also provided by this section that such percentage
or increased rate of charge shall be publicly notified (/);
that the onus of proof of value and injury shall lie with the
person claiming compensation, and that “the special con-
tract shall be signed by him or the person delivering the
animals or goods for carriage.”

The Act only extends to the traffic on a company’s own
lines, and section 7 does not apply to a contract exempting
a company from liability for loss on a railway not belonging
to or worked by the company (g). But where the company
contract to carry over their own as well as other lines, they
must prove that the loss did not occur on their line, in order
to avail themselves of a condition of non-liability (2).

The principal points of difficulty in the construction of
this ill-drawn and ambiguous section are those restrictions
on the common law, which it appears to have been its
especial object to create. They are these: First, whether
general notices given by such companies are valid for the
purpose of limiting their common law liability as carriers ?
Secondly, what, if any, distinction is to be drawn between
the words “special contract’? and “condition” ? And,
thirdly, whether this common law liability may be limited
by such conditions as the Court or Judge shall determine
to be just and reasonable? And, moreover, if this common
law liability may be limited by such conditions as the
Court or Judge shall determine to be just and reasonable, it
is important to consider what conditions have come within
that definition.

Notwithstanding a great divergence of opinion among
the learned Judges, the construction to be put upon this
section, with especial regard to these points of difficulty,
has been defined with considerable exactitude by decisions,
which it will be necessary to give in some detail.

In the case of Peck v. North Staffordshire Railway
Company (i), the whole law on this subject was reviewed

(f) According to the provisions of L. R., 10 Q. B. 1; 44 L. J., Q. B.
the Carriers Act, 11Geo.4&1 Will. 18; 31 L. T., N. 8. 480.
4, c. 68. (‘) Peck vy. North Staffordshire

(9) Zanz v. South Eastern Rail. Rail. Co.,10 H. L. Cas. 473; 32
Co., L. B., 4 Q. B. 539; 88 L. J., L. J. Q. B. 241; 8L. TNS.
Q. B. 209; 20 L. T., N. 8. 878. 768; 11 W. R. 1028.

(hk) Kent v. Midland Rail. Co.,
CARRYING HORSES.

by the House of Lords, and in a great measure settled.
It is therefore unnecessary, with regard to those points
which it determined, to advert to the judicial decisions
which preceded it, and which exhibit considerable variances
of opinion.

The defendants in this case had issued a notice, that
they would receive, forward and deliver goods solely sub-
ject _to certain conditions, one being, “That they would
not be responsible for the loss or injury to any marbles,
&ec., unless declared or insured according to their value.”
The plaintiff’s forwarding agent had knowledge of this
notice or condition, and on the Ist of August, 1857, by
letter, directed the defendants to forward the goods in
question (three cases of marbles), “ot insured.’ The
marbles sustained injury on the journey from wet im-
pregnated with the rust of the nails of the cases pene-
trating through, and discolouring the stone, and this action
was brought for the damage thus occasioned against the
company as common carriers.

By their fourth plea the company pleaded under 17 &
18 Vict. c. 31, s. 7, that the marbles were delivered to be
carried by them subject to a certain special contract,
whereby it was agreed that they should not be responsible
for the loss of or injury to marbles unless declared and
insured according to their value, and that the same were
not nor was any part thereof so declared or insured ; and
by their fifth plea, that the marbles were delivered and
received on the above condition; that such condition made
by the defendants, and assented to by the plaintiff, was a
just and reasonable condition.

It having been decided by the Exchequer Chamber (re-
versing the judgment of the Queen’s Bench) that the
defendants were entitled to the verdict on these pleas, the
House of Lords reversed that decision, and affirmed the
judgment of the Court of Queen’s Bench, holding that no
general notice given by a railway company is valid in law
for the purpose of limiting the common law liability of the
company as carriers; but that such common law liability
may be limited by such conditions as the Court or judge
shall determine to be just and reasonable. =

The majority of the Lords present were of opinion that
the condition above cited was neither just nor reasonable,
as the effect of such a condition would be to exempt the
company from responsibility for injury however caused,
whether by their own negligence, or even by fraud or dis-

0. 8

257

General no-
tices invalid.

Condition
limiting
liability.
258

“ Condition”
and ‘special
contract”
synonymous
terms.

Special con-
tract binding
on company
without sig-
nature.

Effect of
signature by
agent.

CARRYING HORSES.

honesty on the part of their servants; and that the letter
of the Ist of August, 1857, did not constitute a special
contract in writing, the words “not insured” being in-
sufficient, either expressly or by reference, to embody the
condition itself into the letter.

It was held also by the Lord Chancellor (Lord West-
bury) and by Lord Wensleydale, Lords Cranworth and
Chelmsford dissenting, that the conditions must be embodied
in a special contract im writing, to be signed by the owner
or person delivering the goods (j). This question there-
fore remains as decided by M‘IManus v. Lancashire and
Yorkshire Railway Company (k), that in order to give this
section (7) its intended extent of remedy, it must be construed,
in accordance with the approved principle of interpretation,
with reference to the state of the law when the statute was
passed. Before that time, every case in which a special
limited lability was substituted for the general common
law obligation of the carrier, whether by notice acquiesced
in, or document signed by the customer, was one of special
contract. Therefore, the construction to be put upon the
words “special contract”? im the act must date back to a
state of the law, when a condition signed by the owner or
his agent for delivering the goods was held to be a “ special
contract,” except where expressly varied by the words of
the statute.

But a railway company cannot repudiate a special con-
tract on the ground that it has not been signed by the con-
signor ; the proviso in section 7 only applies to cases where
the company seek to relieve themselves from liability by
reason of there being a special contract (m).

Where an agent who is employed to deliver cattle to be
sent by a railway company signs the consignment note, he
must be taken to have known the contents, and thereby
binds his principal (»). If a man who can read sends a
man who cannot read to sign a document or to enter into a
contract in which a document must to his knowledge be
signed, he cannot dispute his lability on the contract so
signed, on the ground that his agent could not read the
contents ; for in such a case the principal must be taken to be

(7) See also Lewis v. Great Western (m) Baxendale v. Great Eastern
Rail. Co., 3 Q. B. D. 195. Rail. Co., L. B., 4 Q. B. 244; 38
(k) M‘Manus vy. Lancashire and UL. J., Q. B. 137.
Yorkshire Rail Co.,4 H. & N. 349 (x) Kirby v. Great Western Rail.
—Ex. Ch. . Co., 18 L. T., N. 8. 658, per Martin,
(2) 17 & 18 Vict. c. 31, s. 7. B.
CARRYING HORSES,

in the same position as though he had signed it himself
without reading it (0).

It was also decided, in the case of M‘Manus v. Lanca-
shire and Yorkshire Railway Company (p), that the 17 & 18
Vict. c. 31, s. 7, gave power to the Court or judge trying
the cause to decide upon the justice and reasonableness of
conditions in a special contract for the carriage of animals
or goods on a railway; and the Court expressed their con-
currence with the opinion pronounced by Jervis, C.J., in
Simons v. Great Western Railway Company (q), that “ the
company may make special contracts with their customers,
provided they are just and reasonable, and signed; and
that, whereas the monopoly created by railways compels the
public to employ them in the conveyance of their goods, the
Legislature have thought fit to impose the further security,
that the Court shall see that the condition or special con-
tract is just and reasonable.”

Thus then the effect of the 7th section of the Railway
and Canal Traffic Act (7) has been determined by the fore-
going decisions to be this:—First, to make general notices
given by companies under this statute, for the purpose of
limiting their common law liability as carriers, invalid; and,
secondly, to make the words “ special contract’ and “ con-
dition” in the 7th section synonymous terms, to the extent
of permitting the common law liability of such companies
to be limited by such conditions, or such special contract,
signed by the owner or his agent for delivering the goods,
as the Court or judge shall determine to be just and reason-
able.

It is therefore important to consider what conditions
have been held to be just and reasonable, and what have
been held not to be so. For no rule of universal applica-
tion can be laid down with respect to what is a mixed
question of law and fact, inasmuch as a reasonable con-
dition may be applied to a state of facts which makes it
unreasonable (s).

In the case of Pardington v. South Western Railway
Company (t), a person sending cattle by railway signed a

(0) Foreman v. Great Western West Midland Rail. Co., 331. J.,

Rail. Co., 38 L. T., N. 8. 341. Ex. 155.
(p) See note (x), ante. (t) Pardington v. South Western
(q) Simons v. Great Western Rail. Rail. Co.. 1 H. & N. 392. And see
Co., 26 L. J., C. P. 25. Wise v. Great Western Rail. Co., 1
(r) 17 & 18 Vict. c. 31, s. 7. H. & N. 63; 25 L. J., Ex. 258.

(s) Per Martin, B., in Gregory v.
8 2

259

As to reason-
ableness
Court to
decide.

General effect
of these
decisions.

What condi-
tions are just
and reason-
able, and
what not.

To be free
from all risks
in respect of
260

damage—
cattle suffo-
cated.

To be free
from all risks
of convey-
ance—horse
injured by
unsound
truck.

CARRYING HORSES.

contract containing the following amongst other condi-
tions:—“ A pass for a drover to ride with his stock, the
company is to be held free from all risks in respect of any
damages arising in the loading or unloading, from suffoca-
tion or from being trampled upon, bruised, or otherwise
injured in transit, from fire, or from any other cause what-
soever.” A drover received a pass to go with the cattle.
The cattle were not put into proper cattle-trucks, but into
vans closing with lids ordinarily used for the conveyance of
salt, and this was done with the consent, or, at all events,
without any objection on the part of the drover. The lid
of one of the vans having become closed in the course of
the journey, several of the cattle were suffocated. The
drover travelled in the same carriage with the guard, and
did not get out during the journey to look at the cattle.
The jury having found that the cattle were suffocated
during the transit, Alderson, B., directed a verdict to
be entered for the defendants, giving leave to the
plaintiffs to move to enter a verdict for 135/. if the Court
thought that the conditions were unreasonable. The Court
refused a rule, and considered that the drover had the
means of knowing whether the cattle could travel safely in
the carriage provided for them, and that the condition was
a reasonable one.

In the case of I[‘Manus v. Lancashire and Yorkshire
Railway Company (uw), a horse was placed by defendants’
servants in a truck which was insufficient and unsound,
and the horse put its foot through a hole in the floor, and
was injured; and the question of liability on the contract
turned upon the reasonableness or unreasonableness of the
following condition :—This ticket is issued, subject to the
owner’s undertaking “all risks of conveyance, loading and
unloading whatsoever, as the company will not be respon-
sible for any injury or damage (however caused) occurring
to live stock of any description travelling upon the Lanca-
shire and Yorkshire Railway, or in their vehicles.” This
condition was held to be neither just nor reasonable, and
Williams, J., in delivering the judgment of the Court,
said: “In order to bring the defendants within the pro-
tection of the special contract, it is necessary to construe it
as excluding responsibility for loss occasioned not only by
all risks, of whatever kind, directly incident to the transit,

(«) M‘Manus v. Lancashire and Yorkshire Rail. Co., 4 H. & N. 349—
Ex. Ch.
CARRYING HORSES,

but also for that caused by the insufficiency of the carriages
provided by the defendants, though occasioned by their
own negligence or misconduct. The sufficiency or in-
sufficiency of the vehicles by which the company are to
carry on their business is a matter, generally speaking,
which they, and they alone, have, or ought to have, the
means of fully ascertaining. And it would, we think, not
only be unreasonable, but mischievous, if they were to be
allowed to absolve themselves from the consequences of
neglecting to perform properly that which seems naturally
to belong to them as a duty. It is unreasonable that the
company should stipulate for exemption from liability
from the consequence of their own negligence however
gross, or misconduct however flagrant; and that is what
the condition under consideration professes to do. That
condition is therefore void; and the case stands simply
upon the ground that the plaintiff has employed the
defendants to carry his horses safely, and that they have
used an insufficient and improper vehicle for that purpose,
whereby the horses have been injured.”

But where A. knew that there was a certain rate for
carrying horses on a railway by passenger train, and in
horse-boxes, and that there was a lower rate for carrying
them by goods train, and in waggons; it was held that it
was a reasonable condition of the contract for conveyance
that the horses should be carried entirely at the owner’s
risk, and that such condition would protect the railway
company if the horses were injured on the journey, but
would not protect them from the consequences of delay
where the contract was to deliver in a reasonable time (z).

Conditions protecting the company against claims for
loss unless made within seven days from the time at which
the goods should have been delivered, and against liability
for the loss of goods untruly or incorrectly declared or
described by the sender are reasonable, and binding (y).

In the case of Aliday v. Great Western Railway Com-
pany (8), the plaintiff delivered some beasts to the station-
master at Oxford, with directions to send them to Birming-

195; 47 L.J., Q.B.131; 37 L. T.,
N. 8. 774. Per Brett, L.J., 3 Q. B.
D. 209.

(a) Robinson v. Great Western
Rail. Co., 35 L.J., C. P. 123; H.
&R. 97. See also D’ Are v. London

and North Western Rail. Co., L. R.,
9 C. P. 325; 30 L. T., N.S. 763;
Harris v. Midland Rail. Co., 25
W. R. 68—D. C. A.; Lewis v.
Great Western Rail. Co.,3 Q. B. D.

(y) Lewis v. Great Western Rail.
Co., 5 H. & N. 867.

(2) Allday v. Great Western Rail.
Co., 34 L. J., Q. B. 5.

261

Owner’s risk
at lower rate.

Condition as
to time within
which loss
should be
declared to
create claim.

As to loss of
market cou-
pled with
“injury” to
cattle.
262

CARRYING HORSES.

ham, for the market there, and signed a ticket, containing
certain conditions, and amongst others that the defendants
were “not to be answerable for any consequences arising
from overcarriage, detention or delay in, or in relation to
the conveying or delivery of the said animals, however
caused.”’ The company have two stations at Birmingham,
one at Bordesley, for the cattle from Oxford and places
south of Birmingham, and the other at Hockley, north of
Birmingham, which would not be the proper station for
the plaintiff’s cattle to be sent to. The plaintiff made in-
quiries for them the next morning at the Bordesley Station,
but inasmuch as they had been carried to the Hockley
Station, he did not get them till the middle of the day.
The proper time for him to have received them would have
been early in the morning, and at the Bordesley Station.
By reason of the delay which took place he lost the market;
and in addition it was proved that the cattle had become
injured by having been kept in the trucks without food or
water. The defendants refused to make any compensation,
and contended that they were protected by the conditions
of the ticket above specified, and that they were therefore
not liable in respect of overcarriage. It was held however
by the Court of Queen’s Bench that the cattle were
‘“‘injured ” within the meaning of the statute, and also that
the condition in the ticket was unreasonable. And Cock-
burn, C.J., said, “It is admitted that there had been loss
of condition to the cattle, and it is clear that that amounts
to ‘injury’ within the meaning of the 7th section. I am
also of opinion that the condition expressed in the ticket is
unreasonable. The defendants claim complete immunity
from liability in respect of all delay, overcarriage, &e.
They talk of reduced rates, but there is no proof that they
charged the plaintiff anything less than the ordinary rates
of charge. lt might perhaps be reasonable, if they had
given the plaintiff the choice of two classes of rates, and
had made a special contract limiting their lability in con-
sideration of the lesser rate being charged. But no such
thing has been done here.’ And Mr. Justice Crompton
said, “I am of the same opinion. It is clear that the
cattle sustained injury by reason of the conduct of the
defendants. Itis also clear that the condition is an un-
reasonable one; it was compulsory upon the plaintiff, no
option being given to him, and the defendants cannot in
such a manner protect themselves from liability.” In
these judgments Mr. Justice Mellor and Mr. Justice Shee
CARRYING HORSES.

concurred. It is important to observe in this case, that the
“injury ” to the cattle is the only damage adverted to by
the learned Judges, so it may be inferred, in accordance
with former decisions (a), that the loss of market alone
would not have entitled the defendants to compensation.

In Harrison vy. London, Brighton and South Coast
Railway Company (b), the following condition was called
im question :—“The company will not be liable in any
ease for loss or damage to any horse or other animal above
the value of 407. or any dog above the value of 5/., unless
a declaration of its value, signed by the owner, or his
agent, at the time of booking, shall have been given to
them; and by such declaration the owner shall be bound,
the company not being in any event liable to any greater
amount than the value declared. The company will in
no case be liable for injury to any horse or other animal,
or dog, of whatever value, where such injury arises wholly
or partially from fear or restiveness. If the declared value
of any horse or other animal exceed 407, or any dog 51,
the price of conveyance will, in addition to the regular fare,
be after the rate of two and a half per cent. upon the
declared value of above 40/., whatever may be the amount
of such value, and for whatever distance the animal is to
be carried.” In this case the plaintiff delivered to the
defendants a dog to be carried, and signed a ticket with
this condition annexed. The value of the dog was 217,
but the plaintiff made no declaration of its value, and paid
only the regular fare 3s. The dog escaped from the train
during the journey, and was lost, without any negligence on
the part of the defendants. The plaintiff having sued the
defendants for the loss, it was held by the majority of the
Court of Exchequer: first, that the meaning of this ticket,
the whole of which must be read together, was, that if the
value of a dog was above 5/., and its value was not de-
clared, and the extra price paid accordingly, the defendants
would not be liable at all, even for loss or injury caused by
their own negligence, and that the condition was therefore
within 17 & 18 Vict. c. 31, s. 7; secondly, that this condi-
tion was not just and reasonable, inasmuch as the extra
charge of two and a half per cent. (without proof to the
contrary, which it lay on the defendants to give) appeared

(a) Beal vy. South Devon Rail. Co., (b) Harrison v. London, Brighton
5 H. & N. 875; White v. Great and South Coast Rail. Co., 29 L. J.,
Western Rail. Co., 26 L.J.,C. P.  Q. B. 209.
158.

263

Condition as
to value
coupled with
unreasonable
rate.
264 CARRYING HORSES.

excessive and unreasonable; and, thirdly, that the condition
being void, the plaintiff, although there was no negligence
on the part of the defendants, was entitled to recover the
full value of the dog against them as common carriers.

The judgment in this case was reversed in the Exchequer
Chamber (c), and, as reversed, was the subject of some
discussion in Ashendon vy. London, Brighton and South
Coast Railway (d), where it was held that a condition that a
railway company will not be liable “in any case”’ for loss
or damage to a horse or dog above certain specitied values
delivered to them for carriage, unless the value is declared,
is not reasonable, as it is in its terms unconditional, and
would, if valid, protect the company even in case of the
negligence or wilful misconduct of their servants; and the
Court further gave its opinion that the judgment of the
Exchequer Chamber was in effect overruled by Peek v. North
Staffordshire Railway Company (e).

Where a condition contained in a ticket signed by a
person delivering a dog for carriage to a railway company
stated that “the company are not and will not be common
carriers of dogs, nor will they receive dogs for conveyance
except on the terms that they shall not be responsible for
the amount of damages for the loss thereof, or for injury
thereto beyond the sum of 27 unless a higher value be
declared at the time of delivery to the company and a per
centage of 5 per cent. paid upon the excess of value beyond
the 2/. so declared; it was held that although the railway
company were not bound to be common carriers of dogs, yet,
being bound by the Railway and Canal Traffic Act, 1854,
to afford reasonable facilities for the carriage of dogs, they
could only limit their lability in respect thereof by reason-
able conditions, and that the above mentioned condition was
not just and reasonable within section 7 of that Act; and,
therefore, did not protect the company from liability to an
amount exceeding 2/. in respect of damage done to the dog
through the negligence of their servants (/).

Where value But where the condition as to an increased rate for
— de- increased value is not objectionable on the ground of excess
, or otherwise, a wilfully talse statement as to the value of

a horse to be conveyed made by the plaintiff in order that

(ce) 31 L. J., Q. B. 1138. (f) Dickson v. Great Northern
(d) 6 Ex. D.190; 42L.T.,N.8. Rail. Oo.,18 Q.B. D.176; 36 L.J.,

586. Q. B. 111; 55 L. T., N. S. 868—
(e) Ante, p. 256. C. A.
CARRYING HORSES,

it might be conveyed at the lower rate will disentitle him
from recovering in damages, if it is injured, upon any
other value than that which was falsely declared to be its
real value (9).

In the case of Gregory v. West Midland Railway Com-
pany (h), a cow and a heifer had been placed by the defen-
dants’ servants without halters in a sheep or calf true
without rails, and during the journey the cow fell or jumped
out of the truck and was injured. An action was brought
for the damage thus occasioned, and the company relied
upon the special contract made by them with the plaintiff,
among the conditions of which were these:—That “the
company are to be free from all risk and responsibility with
respect to any loss or damage arising in the loading or
unloading, or injury in the transit from any cause whatever,
it being agreed that the animals are to be carried at the
owner’s risk, and that the owner of the cattle is to see to the
efficiency of the waggon, before his stock is placed therein ;
complaints to be made in writing to the company’s officer
before the waggon leaves the station.” In accordance with
the decision of the Exchequer Chamber in WM‘ Manus v.
Lancashire and Yorkshire Railway Company (1), these condi-
tions were held to be neither just nor reasonable.

In Rooth v. North Eastern Railecay Company(k), a
contract for the conveyance of cattle by railway, signed by
the party sending them, contained the two following,
amongst other, conditions :—‘“The owner undertakes all
risks of loading, unloading and carriage, whether arising
from the negligence or default of the company or their
servants, or from defect or imperfection in the station,
platform, or other places of loading or unloading, or of the
carriage in which the cattle may be loaded or conveyed, or
from any other cause whatsoever.”—‘‘ The company will
grant free passes to persons having the care of live stock,
as an inducement to owners to send proper persons with and
to take care of them :”—It was held that the first of these
conditions was unreasonable, and that its unreasonable
character was not removed by the mere fact that the
company, under the second condition, granted, and the

(9g) M‘Cance v. London and North —Ex. Ch. See also Peck v. North
Western Rail. Co., 34 L. J., Ex.39. Staffordshire Rail. Co., 10 H. L. Cas.

(A) Gregory v. West Midland Rail. 473; 32 L. J., Q. B. 241, ante,
Co., 838 L. J., Ex. 155. p. 256.

(3) M‘Manus v. Lancashire and (k) LL R., 2 Ex. 173; 36 L. J.,
Yorkshire Rail. Co.,4 H. & N. 327 — Ex. 88.

265

Condition as
to general

non-liability.
Ik y)
Condition as
to non-liabi-
lity beyond
their own
limits.

Lf part of
special con-
tract is rea-
sonable, such
part may be
relied on.

Alternative
rates.

CARRYING HORSES,

owner accepted, a free passage for a person who travelled
with the cattle sent. ;

If carriers receive a chattel to carry to a particular
place, they must be said to have the carrying of it to the
end of the journey, whether they themselves carry it all the
way or not. Therefore any parties to whom they may hand
it over are their agents, and they are clearly liable, unless
the facts show that their responsibility has determined (0).
But a company (which is within the Railway and Canal
Traffic Act) may divest itself of this responsibility for goods
beyond its own limits, as the following conditions have been
held to be just and reasonable, viz., that “in respect of
goods destined for places beyond the limits of the company’s
railway, the company’s responsibility will cease when such
goods shall have been delivered over to another carrier in
the usual course for another conveyance.” And “that any
money, which may be received by the company as payment
for the conveyance of goods beyond their own limits, will be
so received for the convenience of the consignors, and for the
purpose of being paid to the other carrier” (7).

lf a railway company puts two conditions into their
carrying clause, one of which is unreasonable, they may
rely upon the other, which is reasonable. So, too, if part
of a condition, which is severable from the rest of it, is
reasonable (i).

It has been said that the principle deducible from the
authorities is, that a contract, primd facie unreasonable,
becomes reasonable if an alternative rate is offered to the
customer, i.e, if the company have two rates, at one of
which, the higher, it undertakes the ordinary risk of a
carrier, while at the other, the reduced rate, it carries upon
condition of being relieved from that risk (0). Itis the
common practice of railway companies to offer alternative
rates, and the question of the validity of these rates has
frequently been the subject of judicial decision. From
these decisions it would appear that conditions are just and
reasonable if the company offer a bond fide option, and if
the higher rate is reasonable as well as the lower (p). If

(2) Muschamp v. Laneaster and
Preston Junction Rail. Co., 8M. &
W. 421; Watson v. Ambergate, Not-
tingham and Boston Rail. Co., 15
Jur. 448.

(m) Aldridge vy. Great Western
Rail. Co., 33 L. J., C. B. 161.

(2) AL‘Cance y. London and North

Western Rail. Co., 7 H. & N. 477.

(0) Gallagher v. Great Western
Rail. Co., Ir. R., 8 C. L. 326.

(p) Hodges on Railways, 7th ed.571.
See also Sions v. Great Western Rail.
(o., 18 C. B. 805; 26 L. J., 0. PB.
25; Harris v. Midland Rail. Co., 25
W.R. 63; Lewis v. Great Western
CARRYING HORSES.

a railway company offer to undertake the ordinary carriers
liability at a price they are not entitled to charge, or to
carry at a lower price free from liability, the alternative
offer is not reasonable (7). But a condition that the com-
pany will not be liable for injuries caused by fear or restive-
ness of animals, and a limit of liability as regards amount,
the amounts being those specified in section 7, and a pro-
vision that the company do not admit liability in the case
of animals able to walk from the truck, have been held
not to invalidate an alternative offer (r).

Where alternative rates are charged for the conveyance
of cattle or goods, the lower rate being at owner’s risk,
a prioré the higher rate, if within the parliamentary limit,
is not necessarily unreasonable or prohibitory (s). Itis a
question for the jury whether the higher rate is unreason-
able in the sense that it isso high as to be prohibitory ;
and the mere fact that the lower rate is so low that cattle
dealers invariably avail themselves of it is not, standing
alone, evidence that the higher rate is unreasonable or
prohibitory (¢).

The higher rate need not be published in the manner
that tolls are directed to be published by the Railway
Clauses Act, 1845, s. 98; the posting up the effect of it,
é.g., that itis 10 per cent. the owner’s risk rate, is sufficient (2).

When a railway company agrees to carry, at a reduced
rate, upon condition of being relieved from the ordinary
liability for negligence, and to be responsible only for the
consequences of the wilful misconduct of their servants,—-
a condition which has been held to be reasonable if a
higher rate is offered, which is not exorbitant,—it will be
for the plaintiff, in an action for injury to the goods carried,
to prove more than culpable negligence. There must be
evidence of actual wilful misconduct causing the injury (2).

Rail. Co., 3 Q. B. D. 195; 47 Rail. Co., 38 L. T., N.S. 851.

L. J., Q. B. 131; 37 L. T., N. 8.
774—C. A.; Manchester, §¢., Rail.
Co. v. Brown, 8 App. Cas. 703; 538
L. J., Q. B. 124; 50 L. T., N.S.
281; 32 W. R. 207.

(q) Peek v. North Staffordshire
Rail. Co., 10 H. L. Cas. 473; 32
L. J., Q. B. 241; 8 L. T.,N. 8.
768; 11 W. R. 1023.

(r) Great Western Rail. Co. v.
McCarthy, 12 App. Cas. 218; 56
L. J., P. C. 33; 56 L. T., N. 8. 582;
35 W. R. 429.

(s) Foreman v. Great Western

(¢) Ibid.

(u) Great Western Rail. Co. v.
MeCarthy, ubi supra.

(x) Great Western Rail. Co. v.
Glenister, 29 L. T., N. 8. 422; 22
W.R. 72. See also IFebb v. Great
Western Rail. Co.,26 W.R. 111;
Lewis v. Great Western Rail. Co., 3
Q. B. D. 195; 47 L. J., Q. B. 131;
37 L. T., N.8. 744; 26 W. R. 255
—C. A.; Hoare v. Great Western
Rail. Co., 37 L. T., N. 8. 186; 25
W. R. 63.

267

What is wilful
misconduct.
268

Onus of proof.

General effect
of the deci-
sions as to
conditions.

Delivery by
carrier,

Notice of

CARRYING HORSES,

“¢Wilful misconduct,’ ”’ said Bramwell, L.J. (a), ‘means
misconduct to which the will is a party, something opposed
to accident or negligence, the misconduct, not the conduct,
must be wilful. It has been said, and I think, correctly,
that perhaps one condition of wilful misconduct must be
that the person guilty of it should know that mischief will
result from it. But to my mind there might be other
‘ wilful misconduct.’ I think it would be wilful misconduct
if a man did an act not knowing whether mischief would
or would not result from it.”

The withholding of cattle under a groundless claim to
detain them is not “detention” within the meaning of
conditions that the company are not to be liable in respect
of loss, or detention, or injury, except upon proof that such
loss, detention, or injury, arose from the wilful misconduct
of the company or its servants (y).

The onus of proving that a condition is reasonable, hes
upon the company (s).

It will have been seen by a consideration of the cases
that the reasonableness or unreasonableness of a condition
depends upon the nature of the articles to be conveyed, the
degree of risk attendant upon their conveyance, the rate of
charge made, and all the circumstances of each particular
case.

Very slight evidence of non-delivery is sufficient to call
upon the defendant to prove delivery (a). If the carrier
deliver the goods at the place directed in accordance with
the ordinary usage, he has fulfilled his obligation, although
he has delivered them to a person the sender did not
intend ()). Where cattle sent by railway were kept at the
arrival station with the sanction of the plaintiff’s servant,
until they could be removed according to the police regula-
tions, it was held that the liability of the railway company
as carriers had ceased when the alleged loss and damages
occurred (c).

There is no general rule of law requiring carriers to

(x) Lewis v. Great Western Rail.
Co., 3 Q. B. D. at p. 206.

(y) Gordon v. Great Western Rail.
Co., 8 Q. B.D. 44; 511. I., Q. B.
58; 45 L. T.,N. 5.509; 30 W. R.
230.

(«) Harrison v. London, Brighton
and South Coast Rail, Co., 29 L. J.,
Q. B. 209; Lewis v. Great Western
Rail. Co., 3 Q. B. D. at p. 205. Per

Bramwell, L.J.

(a) Griffiths v. Lee, 1 C. & P. 110;
Hawkes vy. Smith, Car. & M. 72;
Roscoe, N. P., 16th ed. 618.

(0) M‘Kean v. M‘Iver, L. B., 6
Ex. 36; 40 L. J., Ex. 30; 24 L.'T.,
N. 8. 559.

(c) Shepherd v. Bristol and Exeter
Rail. Co., L. R., 3 Ex. 189; 37
L. J., Ex. 1138.
CARRYING HORSES.

give notice to the consignor of the refusal of the consignee
to receive goods, but carriers are merely bound to do what
is reasonable, under the particular circumstances of each
ease (d). However, Bramwell, B., said in the case of
Hudson v. Baxendale (d), that “the judgment of the
majority of the Court” (from which however he dissented)
“in Crouch v. Great Western Railway Company (e) seemed
to show that it was the duty of the carrier to communicate
with the consignor.”’

If the consignee makes default in receiving the goods
the carrier is entitled to recover from him the expenses
reasonably incurred in taking care of the goods. A person
sent a horse by railway, consigned to himself ata station
on the line, and paid the fare. When the horse arrived
at the station there was no one on his behalf to receive it,
and the railway company therefore placed it with a livery
stable-keeper; and it was held that the company could
recover from the owner of the horse the reasonable charges
which it had paid to the stable-keeper (/).

After goods have been refused at the consignee’s address,
the carrier becomes an involuntary bailee, and is only
bound to act with due and reasonahle care and dili-
gence (9).

It is no answer to an action against carriers by the
owner of goods lost (who was the consignee), that the
consignor, after the loss of the goods, claimed compensa-
tion, and that the carriers, without notice, and believing
him to be the owner, paid compensation to him (/).

In a case (7) in which the plaintiff sent a horse of great
value to the yard of the defendants’ railway station at
Worcester, for the purpose of its being carried by their
railway; and by the direction of a servant of the company,
the plaintiff’s groom was leading the horse to the plat-
form, when it was startled by another horse, and backed
upon some sharp iron girders lying on the spot, receiving
such an injury that it was necessary to kill it. No declara-
tion of value had been made, nor had any ticket been
taken or fare demanded; the usual practice at that station

(d) Hudsonv. Baxendale, 27 L.J.,
Ex. 93. .

(e) Crouch v. Great Western Rail.
Co., 26 L. J., Ex. 418. ;

(f) Great Northern Rail. Co. v.
Swaffeld; L. R., 9 Ex. 132; 43 L. J.
Ex. 89; 30L. T., N. 8. 562.

(g) Heugh v. London and North

Western Rail. Co., L. R., 5 Ex. 51;
39 L. J., Ex. 48; 21L.T., N. 8S.
676.

(h) Coombs ¥. Bristol and Exeter
Rail. Oo., 27 L. J., Ex. 269.

(1) Hodgman v. West Midland Rail.
Co., 33 L. J., Q. B. 233.

269

consignee’s
refusal to
consignor.

Effect of
consignee’s
refusal.

Compensa-
tion paid
erroneously
to consignor
no answer to
action by
consignee.
Liability of
company
when accident
happens to a
horse in their
yard,
270

Opinion of
Cockburn,
C.J.

Of Mellor, J.

ve Blackburn,

Declaration of
value under
17 & 18 Vict.
c. 31, 8.7.

Non-com-

CARRYING HORSES.

being to put the horse into the box, in which it was to
be conveyed in the first instance. The jury found that the
defendants were guilty of negligence in putting the
girders where they were, and that there was no negligence
on the part of the groom, and found a verdict for the
plaintiff for 1,0007. A rule was subsequently obtained,
pursuant to leave reserved, calling upon the plaintiff to
show cause why the damages should not be reduced to
502, on the ground that the plaintiff’s right to recover
was limited to that sum by 17 & 18 Vict. c. 31, s.7. The
Court differed in opinion, but it was held by the majority
that the rule should be made absolute to reduce the
damages to 50/.

It was held by Cockburn, C.J., who dissented from this
judgment, that as the negligence complained of was not
the negligence of the defendants in their character of
carriers, they were not entitled to the protection of this
section; secondly, if they would have otherwise been en-
titled to the protection, there was no evidence of their
having notified the increased rate of charge as required
by the section; and thirdly, therefore, on both grounds,
the plaintiff was entitled to recover the full value of the
horse.

Mr. Justice Mellor was of opinion that the provision in
the section applied not only to the risks of carriage and
conveyance, but also to those which attend the receiving
and delivery ; that the injury was done in receiving the
horse; and therefore, that as there was no declaration of
value, the plaintiff could not recover more than the 502.

It was held by Mr. Justice Blackburn, that the statute
is not confined to neglects and defaults after the relation
of carrier and customer has been completely established,
and that the real value above 507. cannot be recovered
unless the declaration is made before the injury happens,
though it happen before the receipt by the railway company
is complete.

The mere casual knowledge of a railway company of the
excess in value of a horse sent to be carried, derived from
a letter of the sender to their traffic manager, does not
entitle them to refuse to carry it, except at the increased
per centage of charge (A).

A railway company is not responsible for the non-

g ) ai y. South Western Rail. Co., 19 C. B., N. 8. 51; 34 L. J.,
CARRYING HORSES.

delivery of live stock, where the owner has, in defiance of
the known course of business of the company, permitted
them to be delivered at one of the company’s stations with-
out an acknowledgment from the proper officer of their
receipt for the purpose of their being carried, although they
are proved to have been delivered to an officer in the com-
pany’s employ (().

Where one railway company undertakes to carry goods
from a station on their railway to a place on another distinct
railway, with which it communicates, this is evidence of a
contract with them for the whole distance, and the other
company will be regarded simply as their agents (m). But
the first company might by a special contract restrain their
liability to the limits of their own rail, where they expressly
act as agents for the other company (7). And the question
as to which company is liable will depend on the terms of
the special contract in each individual case. Thus, in
Coxon v. Great Western Railway Company (0), the plaintiff
delivered cattle at a station of the Shrewsbury and Hereford
Railway Company, to be conveyed to Birmingham, and
signed a contract-note with that company, one of the terms
of which was, that the company would not be subject to
liability for any damage arising on other railways. The
cattle were placed on a truck of the defendants lying at the
station, and were conveyed in it along the Shrewsbury and
Hereford Railway to Shrewsbury, and then on the defen-
dants’ line to Birmingham. Between Shrewsbury and
Birmingham the cattle were injured by the floor of the
truck giving way; and it was held that, as the contract of
carriage was with the Shrewsbury and Hereford Com-
pany for the entire journey, the defendants were not
liable.

In Gill v. Manchester, Sheffield and Lincolnshire Railway
Company (p), the Great Northern Railway Company and
the Manchester Railway Company had agreed that a
complete and full system of interchange of traffic should be
established from all parts of one company and beyond its
limits, to all parts of the other company and beyond its
limits, with through tickets, through rates and invoices,

2) Slim v. Great Northern Rail. Co., 22 L. J., Ex. 76; 7 Exch. 699.
Co., 14 C. B. 647. (0) 29 L. J., Ex. 165; 5 H. &

‘m) Muschamp v. Lancaster, §¢. N. 274.
eee es, 8M. & W.421;3H.& (p) L.B.,8Q. B. 186; 421. J.,
C. 771; 4H. & C. 582, Exch. Ch. Q. B. 89; 28 L. T., N. 8. 587.

(n) Fowles v. Great Western Rail.

271

pliance with
a rule as to
receipt.

Through car-
riage on rail-
ways, what
company
liable.

Gilly. Man-
chester, §¢.,
Rail. Co.
272

Combe v. Lon-
don and South
Western Rail.
Co.

CARRYING HORSES.

and interchange of stock at junctions, the stock of the two
companies being treated as one stock. The agreement
provided for the division of the traffic. The plaintiff,
wishing to send a cow from Doncaster to Sheffield, went
to the station of the Great Northern Railway Company at
Doncaster and booked her for Sheffield by the Manchester
line. He signed a contract, by which it was agreed that
the cow was to be conveyed upon certain conditions, one
of which was as follows:—“ The Great Northern Railway
Company gives notice that they convey horses, cattle,
sheep, pigs and other live stock in waggons, subject to the
following condition: That they will not be responsible for
any loss or injury to any horse, cattle, sheep, or other
animal, in the receiving, forwarding or delivering, if such
damage be occasioned by the kicking, plunging, or restive-
ness of the animal.”” The cow was put into a truck
belonging to the Manchester Railway Company, and was
conveyed to Sheffield, where their servant, who was in
charge of the yard or loading place, let her out of the
truck, although he was cautioned by the plaintiff not to
do so at that time. The cow rushed out of the truck, and,
after running about the yard, got upon the line and was
killed. It was held that the Great Northern Railway
Company was the agent of the Manchester Railway
Company to make the contract for the carriage of the
cow, and that, as the Manchester Railway was not pro-
tected by the condition above set cut, an action was main-
tainable against them.

In Combe v. London and South Western Railway Co. (q),
the plaintiff sent off some horses from Wadhurst, a station
on one company’s line, in horse boxes belonging to that
company in charge of a groom, who was to take them to
Farnham, a station on the defendants’ line. At Guildford
was the junction with the defendants’ railway, where it
was necessary to book again, and whence there are two
routes to Farnham. The groom, on going to take tickets,
was told, in answer to his inquiries, that the train direct to
Farnham did not go for some hours, but that by paying
a little higher fare, he could go on by a train which was
about to start immediately, and went round a longer way.
He said he would go on at once, and he and the horses
proceeded in the same trucks in which they had come from
Wadhurst. At Farnham two porters came to unload the

(g) BI Te T.,8, 8, 619,
CARRYING HORSES,

trucks, and the groom told them of the danger of an
accident arising from a wide space between the flap and the
body of the horse-box, and how at Wadhurst it had been
stopped up for the horses to be putin. They accordingly
tried to stop it up with straw, while the groom kept the
horses quiet inside. When done they said “all right,”
and he then led out a mare, her foal following. The
latter put its foot through the opening and broke its leg.
It was held that the company were bound to provide a
truck reasonably fit for the conveyance of the plaintiff’s
horses, and there was evidence that this was unfit, and that
the defendants had adopted it from the other company at
Guildford, and, by sending it on to Farnham, became liable
for an accident caused by its defects.

The Regulation of Railways Act, 1868 (31 & 32 Vict.
¢. 119), Part IL., sect. 14, provides that where a company,
by through booking, contracts to carry any animals, luggage,
or goods from place to place, partly by railway and partly
by sea, or partly by canal and partly by sea, a condition
exempting the company from liability for any loss or
damage which may arise during the carriage of such
animals, &e. by sea, from the act of God, the king’s enemies,
fire, accidents from machinery, boilers and steam, and all
and every other dangers and accidents of the seas, rivers
and navigations, of whatever nature and kind soever, shall,
if published in a conspicuous manner in the office where
such through booking is effected, and if printed in a legible
manner on the receipt or freight note which the company
gives for such animals, &c., be valid as part of the contract
between the consignor of such animals, &e., and the
company, in the same manner as if the company had signed
and delivered to the consignor a bill of lading containing
such condition. For the purpose of this section, the word
“company ”’ includes the owners, lessees or managers of
any canal or other inland navigation.

Section 16 of the same Act contains provisions for secur-
ing equality of treatment in respect of tolls where a railway
company is authorized to work steam vessels in connection
with their lines.

By section 17, “where any charge shall have been made
by a company in respect of the conveyance of goods over
their railway, on application in writing within one week
after payment of the said charge made to the secretary of
the company by the person by whom or on whose account
the same has been paid, the company shall within fourteen

oO. T

275

Through car-
riage, partly
by railway
and partly by
sea. Regula-
tion of Rail-
ways Act,
1868.

Company to
furnish par-
ticulars of
charges.
274

Carriage in
vessel not
belonging to
company.

Regulation of
Railways Act,
1871.

CARRYING HORSES.

days render an account to the person so applying for the
same, distinguishing how much of the said charge is for
the conveyance of the said goods on the railway, including
therein tolls for the use of the railway, for the use of
carriages, and for locomotive power, and how much of such
charge is for loading and unloading, covering, collection,
delivery, and for other expenses: but without particulariz-
ing the several items of which the last-mentioned portion of
the charge may consist.”

By section 18, “where two railways are worked by one
company, then, in the calculation of tolls and charges for
any distances in respect of traffic (whether passengers,
anmals, goods, carriages, or vehicles) conveyed on both
railways, the distances traversed shall be reckoned con-
tinuously on such railways, as if they were one railway.”

The Regulation of Railways Act, 1871 (84 & 35 Vict.
c. 78), section 12, enacts that “where a railway company
under a contract for carrying persons, animals, or goods by
sea procure the same to be carried in a vessel not belonging
to the railway company, the railway company shall be
answerable in damages in respect of loss of hfe or personal
injury, or in respect of loss or damage to animals or goods,
in like manner and to the same amount as the railway
company would be answerable if the vessel had belonged to
the railway company ; provided that such loss of life or
personal injury, or loss or damage to animals or goods,
happens to the person, animals, or goods (as the case may
be) during the carriage of the same in such vessel, the proof
to the contrary to le upon the railway company.”

This section extended the provisions of the 31 & 32 Vict.
c. 119, s. 16, ante, p. 278, to the carriage of goods which
a railway company contracted to carry in ships not
belonging to them; and as the second paragraph of that
enactment incorporated the whole of the Railway and
Canal Traffic Act, 1854, it was held that a condition made
by a railway company limiting their liability in respect of
animals procured to be carried by them by sea in vessels
not belonging to them, was not binding on the consignor
unless reasonable (r). But this provision was repealed by
section 59 of the Railway and Canal Traffic Act, 1888
(51 & 52 Vict. c. 25) and section 28 of the same Act
specifically applied to sea traffic the prohibition of undue

a Doolan v. Midland Rail. Co.. 2 App. Cas. 792; 34 L. T., N. 8.
CARRYING HORSES.

preference only, so that section 7 of the Act of 1854 no
longer applies to sea traffic (s).

Section 22 (xxi.) of the Diseases of Animals Act, 1894
(57 & 58 Vict. c. 57), empowers the Board of Agriculture
trom time to time to make such orders as they think fit,
subject and according to the provisions of the Act, for pre-
scribing and regulating the cleansing and disinfecting of
vessels, vehicles and pens, and other places used for the
carrying of animals for hire or purposes connected there-
with. Accordingly, by the Animals (Transit and General)
Order, 1895, provisions are made for the cleansing and
disinfecting in the mode therein ordered—of every vessel
used for carrying animals by sea, or on a canal, river, or
inland navigation, after the landing of animals therefrom,
and before the taking on board of any other animal, or
other cargo—of every horse-box, truck, and van on every
occasion after an animal is taken out of the same, and
before any other animal is placed therein—of every move-
able gangway or other apparatus used for transit of animals
on or from a truck or vessel as soon as practicable—and of
every loading pen, either on each day on which it is used
and after the using thereof, or at some time not later than
twelve o’clock at noon of the next following day, unless
the following day is Sunday, and then on the following
Monday, and before the using thereof. For any contra-
vention of these provisions the owner and master of the
vessel in which ; and the railway company carrying animals
on or owning or working the railway on which; and the
owner of the apparatus, in respect of which the same is
done, shall each be deemed to be guilty of an offence against
the Act (¢).

A carrier of goods or cattle is only bound to carry in a
reasonable time under ordinary circumstances, and is not
bound to use extraordinary efforts, or incur extra expense
in order to surmount obstructions caused by the act of God,
such as a fall of snow (wv). Nor is he responsible for delay
arising from causes beyond his control; eg., a railway
company was prevented from unavoidable obstruction on
its line from carrying goods within the usual time. The
obstruction was occasioned by an accident resulting solely
from the negligence of another company, having parliamen-
tary running powers over their line; and it was held that

(s) Hodges on Railways, 7th ed.. N.S. 530; 56 J. P. 486.
p. 627. («) Briddon v. Great Northern
(t) See Ismay v. Blake, 66L.T., Rail. Co., 28 L. J., Ex. a
T §

Steamboat
and railway
companies,
&c., to disin-
fect carriages,
boats, &c.

“ Reasonable
time.”
no
a
a

A ferryman.

CARRYING HORSES.

the railway company was not liable to the owner of the
goods for damage caused to them by the delay (x). What
is, or is not, reasonable time, must be judged with refer-
ence to the means at the carrier’s disposal for forwarding
the goods (y) ; but if his course of business is inconsistent
with reasonable expedition, it is no answer to an action
against him for damages arising from delay, that he carried
at the ordinary rate at which he conducted business (z).
Provided that he carry by a reasonable and usual route he
is not bound to carry by the shortest route, even though
empowered by statute to charge a mileage rate for car-
riage (a).

A ferryman is bound not only to provide a safe mode of
conveyance, but also proper means for the embarkation
and landing of the animals carried by him. The defen-
dants, lessees of a ferry over the river Mersey, ran steam-
boats across for the conveyance of passengers and goods
for hire. They also carried animals, but it was not their
practice to take charge of the animals when on board.
The plaintiff, having paid his usual fare, led his mare on
board at one side of the river, and remained with her
until the steam-boat reached the other side. For landing
the passengers and animals the defendants had provided a
movable slip leading from the boat to a landing-barge.
The slip had a hand-rail, which had been twice recently,
to the defendants’ knowledge, broken by the pressure of a
horse on landing ; and in the handrail was an iron spike,
which appeared whenever the rail gave way. The defen-
dants had also been cautioned that the slip was unsafe.
They notwithstanding continued to use the slip, leaving the
broken rail slightly tied up, so that it appeared sound.
Over this slip the plaintiff proceeded to lead his mare
towards the shore; but she pushed against the rail, which
immediately gave way, and the iron spike concealed in it
injured her severely. It was held that the defendants
were bound not only to find a good boat, but also a good
slip, and therefrom so to bridge over the space between the
boat and the land as to provide means for getting from one
to the other. And that although the mare was under the

(a) Taylor v. Great Northern Rail. (s) Blakemore v. Lancashire and
Go., L. R.,1C. P. 885; 385 L. J., Yorkshire Rail. Co., 1 F. & F. 76;
Cc. P. 210. Hales v. London and North Western

(y) Hales v. London and North  Ruil. Co., 32 L.J., Q. B. 292.
Western Rail. Co., 382 L. J., Q. B. (@) Myers v. London and South

292. Western Rail. Co., L. R.,5 C. P. 1.
CARRYING HORSES.

control and management of the plaintiff, they were liable for
the injury to her in consequence of their culpable negligence
in allowing an improper slip to be used (6).

The damages to be paid will be measured by the value
of the animal, if it be killed, or by the loss on the sale,
if it be injured, but in respect of companies under the
Railway and Canal Traffic Act (c), within the limit of
Damages imposed by that statute, vis., for a horse 502,
neat cattle per head 15/., and for sheep and pigs per
head 2/., unless at the time of delivery they shall be de-
clared to be of higher value than that above mentioned;
in which case however they cannot be estimated upon a
higher value than that which has been declared by their
owner or his agent in the written declaration required by
the company, though the declared value is less than the
real value (d).

If horses or cattle are injured on their way to an agricul-
tural show, the chance of obtaining a prize 1s too remote a
ground for damages (e). But such expenses as are reason-
ably and necessarily incurred by the owner in consequence
of unreasonable delay in the delivery of goods, may be
recovered against the carrier (/).

In order to recover damages for non-sale, owing to delay
in carrying, there must have been an actual contract to buy
for a price (9).

A railway company having failed to provide horse-boxes,
pursuant to contract, for the conveyance of horses for sale
by auction in Dublin on the day but one following, the
owner was compelled to send them by road, a distance of
twenty-four miles, in order that they might arrive in due
time for the sale, and for previous inspection by purchasers.
The horses, which were valuable hunters, were in soft con-
dition at the time. ‘They were deteriorated in appearance
by the fatigue of the road journey ; one of them was lamed:
and such as were sold realized prices below what would
have otherwise been obtained, the others being left on the
owner’s hands. It appeared that if they had been in hard-
fed condition, they would have borne the journey without
injury. The company’s station master was, at the time of

0 Willoughby v. Horridge,22 L. ham and Boston Rail. Co., 15 Jur.
J., 6. P. 90. 448,

(c) 17 & 18 Vict. v. 31. (f) Black v. Baxendale, 1 Ex.
(4) M‘Cance v. London and North 410.
Western Rail. Co., 31 L. J., Ex. 65; (g) Hart v. Baxendale, 16 L. T.,
34 L. J., Ex. 39—KEx. Ch. N.S. 390, Martin, B.

(e) Watson v. Ambergate, Notting-

277

Damages.

Injury must
not be too
remote.

Failing to pro-
vide horse-
boxes for
horses to be
sold at auc-
tion.
CARRYING HORSES.

the contract, aware of the intended sale and of the day on
which it was to take place. It was held that the company
were not liable in damages for the whole of the loss which
the owner sustained in consequence of the injuries occa-
sioned by the road journey; but that the measure of
damages was the deterioration which the horses, if in
ordinary condition and fit to make the journey, would
have suffered thereby, and the time and labour expended
on the road (2).

(kh) Waller y. Midland Great Western Rail. Co. L. R., 4 Ir. 376;
reversing L. R., 1 Ir. 520.
PART II.

NEGLIGENCE IN THE USE OF HORSES, &c.

 

CHAPTER I.

THE CRIMINAL AND CIVIL LIABILITIES OF PARTIES FOR
INJURIES INFLICTED OR INCURRED IN DRIVING, ALSO
THE RULE OF THE ROAD, AND NEGLIGENT DRIVING BY
A SERVANT.

Negligent Driving.

NEGLIGENCE is defined to be the omitting to do something
which a reasonable man would do, or the doing something
which a reasonable man would not do; in either case
causing mischief to a third party; not ¢ntentionally, for
then there would be no negligence (a).

An abstract rule as to what will constitute negligent
driving can hardly be laid down. It must depend upon
all the circumstances of each case. Thus, it was held by
Bayley, J. (0), that a carter sitting inside a cart, instead of
attending at the horse’s head, was guilty of negligence ;
and the fact that while he was there sitting, the cart went
over a child, who was gathering up flowers on the road, and
killed it, made him guilty of manslaughter. And the same
point was ruled by Hullock, B. (c). But under other cir-
cumstances a driver would be more negligent in being off
than on his vehicle.

If a man rides recklessly a wild horse into a crowd, and
kills a person, it will be murder, in the same way as it has
been so held when bricks were thrown from the top of a
house into a thoroughfare, and killed a person (@).

If a person driving a carriage happens to kill another,

(a) Per Alderson, B., Blyth v. (c) Spring Assizes, 1829, quoted
Birmingham Waterworks Co.,2 Jur. 1 Lewin, C. C. 168. (
N.S. 333. (d) Liverpool Spring Assizes, 1847,

(b) Knight's case, 1 Lewin, C.C. per Alderson, B., eg. v. Cook,
168. 1 Ld. Raym. 143.

Definition of
negligence.

Negligent
driving.

Where killing
a person is
held to be
murder.
280

Where killing
a person is
held to be
manslaughter.

Burthen of
proof.

Furious
driving.

Carriages
racing.

Driver un-
able to pull

up.

NEGLIGENCE IN THE USE OF HORSES, ETC.

and he saw or had timely notice of the mischief likely to
ensue, and yet eilfully drove on, it will be murder ; for the
presumption of malice arises from the doing a dangerous act
intentionally, and “there is the heart regardless of social
duty” (e).

If the driver might have seen the danger, but did not
look before him, it will be manslaughter for want of due
circumspection (ec). And generally it may be laid down,
that, where one by his negligence has contributed to the

- death of another, he is guilty of manslaughter (/).

Where a man was indicted for the manslaughter of a
woman by driving a cab over her in a public street, and
his defence was, that he had used due and proper care in
driving the cab upon the occasion in question ; it was held
that the burthen of proving negligence did not he on the
crown, but that, upon the fact of the killing being proved,
it was cast upon the prisoner to show that he had used due
and proper care in driving the cab (y).

If a man drive a carriage or cart at an wnausually rapid
pace (h), whereby a person is killed, though he calls
repeatedly to such person to get out of the way; if from
the rapidity of driving, or from any other cause the person
cannot get out of the way in time enough, but is killed, the
driver is in law guilty of manslaughter (i).

If each of two persons be driving a cart or carriage, at a
dangerous and furious rate, along a highway, and they be
racing and inciting each other so to drive, and one of them
runs over a man and kills him, both are guilty of man-
slaughter (k) ; and it is no ground of defence, that the death
was caused by the negligence of the deceased himself, or that
he was either deaf or drunk at the time (A).

So, also, if the driver of a carriage be racing with another
carriage, and from being unable to pull up his horses in
time, the first mentioned carriage is upset, and a person
thrown off it and killed, this is mans/aughter in the driver of
that carriage. Thus, where two omnibuses, running in
opposition to each other, were galloping along a road, and

(ec) 1 Hale, 476; Fost. 263; 1 5 & 6 Will. 4, c. 50, s. 78; and fer
East’s Pleas of the Crown, 263; and the Metropolis, 2 & 3 Vict. c. 47,
see Reg. v. Cook, ante, p. 279. s. 54.

(f) Reg. v. Swindall, 2 C. & K. (‘) Per Garrow, B., Rex v. Walker,
230. 106. & P. 32.

(g) Reg. v. Cavendish, 8 Ir. R., (k) Reg. v. Swindall,2 C0. & K.
C. L. 178—C. C. R. 230.

(2) See the General Highway Act,
NEGLIGENT DRIVING.

a person killed by the upsetting of one of them, for which
the driver was tried :—Mr. Justice Patteson in summing up
said to the jury, ‘The question here is, whether you are
satisfied that the prisoner was driving in such a negligent
manner that, by reason of his gross negligence, he had Jost
command of his horses? And that depends on whether the
horses were unruly, or whether you believe that he had been
racing with the other omnibus, and had so urged his horses
that he could not stop them ; because, however he might be
endeavouring to stop them afterwards, if he had lost the
command of them by his own act, he would be answerable,
for a man is not to say, I will race along a road, and when
Ihave got past another carriage, I will pull up. If the
prisoner did really race, and only when he got past the other
omnibus endeavour to pull up, he must be found guilty; but
if you believe that he was run away with, without any act
of his own, then he is not guilty. The main questions are,
were the two omnibuses racing; and was the prisoner
driving as fast as he could in order to get past the other
omnibus, and had he urged his horses to so rapid a pace
that he could not control them? If you are of that opinion,
you ought to convict him; but if his horses ran away of
their own accord, without any act of his, he is entitled to an
acquittal ” (J).

If a man undertakes to drive another in a vehicle, he is
bound to exercise proper care in regard to the safety of the
man under his charge, and if by culpable negligent driving
he causes the death of the other, he will be guilty of man-
slaughter. But he cannot be found guilty of manslaughter
if the deceased himself interfered in the management of
the horse and thereby assisted im bringing about the
accident (m).

Contributory negligence is not an answer to a criminal
charge, as to a civil action (z). And even if the doctrine
of contributory negligence does apply to criminal cases,
yet there is no contributory negligence on the part of
anyone in merely getting mto a vehicle and allowing
himself to be driven, although the driver be perceptibly
drunk (0).

When a person has been killed in such a manner that

(2) Reav. Timmins,7C.&P.500. 4 F. & F. 1087, contra—per Wil-
(m) Reg. v. Jones, 22 L.T., N.S. les, J.
217; 11 Cox, C. C. 544—Lush, J. (0) Reg. v. Jones, 22 L. T., N.S.
(x) Reg. v. Kew, 12 Cox, C. C. 217; 11 Cox, C. C. 544—Lush, J.
355—Byles, J. See &. v. Birchall,

Causing deatla
of passenger.

Defence of
contributory
negligence.

Where killing
a person is
282

held to be
accidental
death. {

And the driver
is not liable.

Trotting a
waggon along
a road.

Trotting a
waggon along
a street.

Remarks in
East’s Pleas
of the Crown.

Where streets
are unusually
crowded.

NEGLIGENCE IN THE USE OF HORSES, ETC.

no want of care could be imputed to the driver, it will be
accidental death, and he will be excused (p).

Therefore, if the driver of a conveyance use all reason-
able care and diligence, and an accident happen through
some chance which he could not foresee or avoid, he is not
to be held liable for the results of such accident (¢).

Thus, in an old case, where A. was driving a waggon
with four horses in the highway at Whitechapel, and he
being in the waggon, and the horses upon a trot, they
threw down a woman, who was going the same way with a
burden upon her head, and killed her, Chief Justice Holt,
Justice Tracy, Baron Bury, and the Recorder Lovel, held
this to be only a misadventure (r).

But Lord Holt held in that case, if it had been in a
street where people usually pass, it would have been man-
slaughter ; but it was clearly agreed that it could not be
murder (7).

It must be taken for granted from this note of the case,
that the accident happened in a highway where people
did not usually pass (s); for otherwise, the circumstance
of the driver’s being iv his cart, and going so much faster
than is usual for carriages of that construction, savoured
much of negligence and impropriety ; for it was extremely
diticult, if not impossible, to stop the course of the horses
suddenly in order to avoid any person who could not get
out of the way im time. And indeed such conduct in a
driver of so heavy a carriage might, under most circum-
stances, be thought to betoken a want of due care, if any,
though but few, persons might probably pass by the same
road. The greatest possible care is not to be expected,
nor is it required; but whoever seeks to excuse himself,
for having unfortunately occasioned by any act of his own
the death of another, ought at least to show that he took
that care to avoid it which persons in similar situations
are most accustomed to do (¢).

The fact that streets are usually crowded from any
public procession or other cause, instead of excusing a
driver when proceeding at his ordinary pace and with
ordinary care, requires him to be particularly cautious, and
may tend to render him criminally answerable for any

p) 1 Hale, 476; Fost. 263; 1 1704, M.S. Tracy, 32,

East’s Pleas of the Crown, 263. (s) Unlike Whitechapel of the
(q) Reg. v. Murray, 5 Cox, C. C. present day.
509 (Ir.). (t) 1 East’s Pleas of the Crown,

(r) O. B. Sess. before Mich. T. 263.
NEGLIGENT DRIVING.

accidents ensuing from driving at a rate, and with those
precautions which he might have ordinarily observed (w).

If any one be maimed or otherwise injured by the
“wanton and furious driving or racing,” or by the “ wilful
misconduct” of the driver of any public stage carriage, the
person so offending is guilty of a misdemeanor, and in-
dictable under the statute 24 & 25 Vict. c. 100, s. 35 (2).

Under 2 & 3 Vict. c. 47, s. 54, every person who, within
the Metropolitan Police District, ‘shall ride or drive
furiously, or so asto endanger the life or limb of any
person, or to the common danger of the passengers in
any thoroughfare,” is lable to a penalty of not more
than 40s.

Police constables are empowered to take a person into
custody without warrant, who may commit any such offence
“ within view of any such constable” (y); and this power
is not confined to cases where the offender’s name and
residence is unknown (3).

A conviction for furious driving under this statute,
not alleging the offence to have been committed within
view of the police constable, was held not to be a bar to
an action of trespass against a police constable for the arrest
and detention of the party, although such conviction was
unappealed against and acquiesced in (a).

A party who sustains an injury from the careless or
negligent driving of another may maintain an action, unless
he has himself been guilty of such negligence or want
of due care as to have contributed or conduced to the
injury (4).

The driver of a public vehicle is bound to be a skilful
driver, and any damage arising from his unskilful driving
is a ground of action. A less degree of skill is to be
looked tor from the driver of a private vehicle, but he is
bound to drive with reasonable care and skill. Thus, in
the case of Collier v. Chaplin (c), which was an action to

(u) Reg. v. Murray, 5 Cox, 0. C.
509 (Ir.).

(x) Re-enacting 1 Geo. 4, c. 4.

(y) 2 & 3 Vict. c. 47, 8. 54.

(2) Justice v. Gosling, 16 J. P.105;
21 L. J., C. P. 94; 2 & 8 Vict.
c. 47, 8. 63.

(a) Justice v. Gosling, 16 J. P.105;
21L.J., C. P. 94.

(b) See per Coltman, J., Thorogood
v. Bryan, 8 C. B. 130.

(c) Collier v. Chaplin, N.P., C. P.

cor. Byles, J., Westminster, Feb. 1,
1865. See also Moffat v. Bateman,
L. R., 3 P. C. 115; 22 L. T., N.S.
140; 6 Moore, P. C. C., N. 8. 369;
Simson v. London General Omnibus
Co., L. R., 8 C. P. 390; 42 L. J.,
C. P. 112; 28 L. T., N. 8.560; 21
W.R. 595; Manzoni v. Douglas, 6
Q. B. D. 145, 151; Martin vy. North
Metropolitan Tramways Co.,3 Times
L. R. 600.

283

Where driver
is indictable
under 24 & 25
Vict. c. 100,
s. 35.

Furious driving
in the Metro-
politan Police
District.

Power of
police con-
stables.

Conviction no
bar to action
of trespass.

Where party
injured by
negligent
driving may
maintain an
action.

Duty of
drivers of pub-
lic and private
vehicles.
284

Negligence in
the care of
vicious horses,
&e.

Where ano-
ther person
strikes a
horse,

Damages
recovered in
trespass.

Driving furi-
ously round
a corner.

Mail cart
rapidly enter-
ing Post Office
Yard.

NEGLIGENCE IN THE USE OF HORSES, ETC.

recover damages for an injury to the plaintiff, and to her
clothes, from being upset by the defendant, when driven
by him, it appeared that the plaintiff at the defendant’s
request took a drive with him in his cart, and that the
defendant upset the cart, by reason of which a can of gas-
tar, which was in the cart, was spilt over her clothes, and
her ankle was injured. Mr. Justice Byles told the jury
that the defendant was not bound to bring the same skill
and care as a driver of a public vehicle, to the driving of
his cart, in which he allowed the plaintiff to accompany
him, but he was bound to drive with reasonable care and
skill, and that the question for them was whether the
accident arose from the defendant’s culpable negligence or
not.

An action lies for neglect in taking care of vicious
horses, cattle, dogs, &c. As if a man ride an unruly
horse in Lincoln’s Inn Fields (or other public place of
resort) to tame him, and he break loose and strike a
person (d).

But where damage is done in consequence of a person
striking a horse on which another rides, the striker is the
trespasser and the rider is not (e).

A man and his wife brought an action of trespass for
a battery, and declared that the defendant struck the horse
whereon the wife rode, so that the horse ran away with
her, whereby she was thrown down, and another horse ran
over her, whereby she lost the use of two of her fingers.
The jury found for the plaintiffs and gave them 48/.
damages (7).

If a man drive furiously round a corner and injure a
person on the further side, he is lable to an action for his
negligence (9).

One of the mail carts, entering the General Post Office
Yard at the rate of five or six miles an hour, knocked
down and seriously injured the plaintiff, a widow. On an
action being brought the defence was, that the accident
was occasioned by the plaintiff's own awkwardness, in not
attending to the driver’s warning. Lord Campbell told
the jury, that the real question was whether that was a

(2) See Com. Dig. Action upon (e) Gibson v. Fepper, 2 Salk. 637.
the Case for Negligence, A. 5; and (f) Dodwell vy. Burford, 1 Mod.
Ferocious and Vicious Animals, post, 24.

Part I1., Chap. II. See also Michael (g) See Mayor of Colchester v.
v. dlestree, 2 Lev. 173. Brooke, 7 Q. B. 359.
NEGLIGENT DRIVING.

proper pace to drive into the yard. And they gave a
verdict for the plaintiff, with 50/. damages (2).

Independently of negligent driving, an action will also lie
in respect of damage sustained in a collision resulting from
the improper harnessing of the defendant’s horse. Where
the defendant was driving along a highway a sixteen hand
horse in a van which was much too small for it, in conse-
quence of which the horse’s houghs rubbed against the
cross bar of the shafts; and the horse, having been startled
by a slight collision with a cab, violently collided with an
omnibus which was standing at the kerb on its proper side,
producing damage; and it was clear that no accident
would have happened to the omnibus if the defendant’s
horse had not been too large for the van; it was held that
the harnessing of the horse to such a van was the
negligence which materially and proximately led to the
accident (7).

If damage is caused by a horse taking fright at some-
thing which is improperly placed in the public street, the
person so placing it is lable. Thus, in the following case,
the plaintiff, a carman, was proceeding with his master’s
cart, heavily laden, along Angel Lane, Stratford, when the
horse took fright at a fire-basket, on which some asphalte
was boiling, started to one side, and, notwithstanding the
plaintiff’s catching hold of the bridle, threw him down, so
that the wheel passed over his leg and produced a com-
pound fracture of the bone. He was taken to the London
Hospital, where the bone was set, but hospital gangrene
supervened, and he was for some days in danger of losing
his leg. He, however, gradually recovered, was discharged
after twelve weeks, and continued as an outpatient for a
long time. Eventually he was able to walk about with the
help of a stick, and earn 10s. a-week, but at the time of
the accident he was in the receipt of 1/. a-week, on which
he supported himself and two young daughters. The
defendant had contracted to lay the floor of a room in the
Angel Inn with asphalte, which he caused to be boiled in
the lane, as the smell was too powerful for the house. He
had been warned of the danger of having the fire-basket
in the street, and had removed it to a different part of the
lane, but did not place it in the yard of the inn, where it

(h) Smith v. M‘Namara, cor. Lord (i) Burkimv. Bilezikdgi, 58 J. 2.
Campbell, C.J., Queen’s Bench, 760—Fry, LJ.
N. P., May 12, 1853.

285

Negligence in
harnessing.

Frightening
a horse by a
fire-basket.
286

By van left on
roadside.
Harris v.
MMobbs.

By engine-

driver blow-
ing off steam
at a crossing.

Blowing off
steam at a
station.

NEGLIGENCE IN THE USE OF HORSES, ETC.

had been suggested it would be more out of the way. The
jury returned a verdict for the plaintiff—damages 604. (f).

In Harris v. Hobbs (/) a house-van attached to a steam-
plough was left for the night on the grassy side of a high-
way by the defendant. The van and plough were four
er five feet from the metalled part of the way.
During the evening the plaintiff’s testator drove his mare
in a cart along the metalled road. The mare was a kicker,
but he was unaware of her vice. Passing the van she
shied at it, kicked, and galloped, kicking for 140 yards,
then got her leg over the shaft, fell, and kicked her driver
as he rolled out of the cart. He afterwards died from the
kick so received. In an action under Lord Campbell’s
Act (9 & 10 Vict. ¢. 98, s. 1), by his executors for wrong-
ful and negligent obstruction of the highway, the jury
found that the van was left where it stood unreasonably,
and negligently, and caused some appreciable danger to
vehicles passing along the metalled parts of the road;
that the death was occasioned by the van standing where
it did, and by the inherent vice of the mare combined, and
that there was no contributory negligence. It was held on
these findings that the verdict and judgment must be for
the plaintiffs; for the unauthorized, unreasonable, and
dangerous user of the highway by the defendant was the
proximate cause of the injury.

So, too, where an engine-driver blew off steam at a
spot where a railway crossed a highway on a level, so as
to frighten horses waiting to cross the line, such crossing
being a place where there was considerable traffic, it was
held to be actionable negligence on the part of the com-
pany (m).

But where, in an action against a railway company, it
appeared that the plaintiffs were leaving a station belong-
ing to the defendants in a carriage, when the horse was
frightened by the sight and sound of an engine at the
station blowing off steam, and the carriage was upset and
the plaintiffs mjured ; and it did not appear that the engine
was defective, or that it was used in an improper manner,
or that the approach to the station was inconvenient; but
the jury found that the defendants were guilty of negligence

(4) Lambert v. Harrison, cor.Tal- Wilkins v. Day, 12 Q. B. D. 110;
fourd, J., Guildhall (C. P.), Feb. 25, 49 L. T., N. 8. 399.
1853. (m) Manchester Rail. Oo. v. Ful-
(1) 3Ex. D. 268; 39 L.T.,N.8.  larton, 14 C. B., N.S. 54; 11 W. B.
164; 27 W. R. 164. See also 754.
NEGLIGENT DRIVING.

in not screening the railway from the roadway leading to
the station, and that such negligence had caused the acci-
dent. It was held by the Court of Appeal that the defen-
dants were not liable, as there was no evidence of any
obligation on their part to screen the railway from the
road (x).

Where damage has been caused by collision, there may
be negligence on one side only (0); or negligence on both
sides (p). Both parties may be to blame (q); or it may be
altogether an accident (rv). The followmg rules, which
appear fully borne out by the cases hereafter quoted, will
fix the liabilities of the parties concerned, under whatever
circumstances the damage may be inflicted.

Ist. If a party who is taking reasonable and proper care
receives damage in consequence of a horse or carriage he
encounters being negligently managed, the person who
has the control over such horse or carriage is answerable.

2nd. Where damage is not the necessary consequence of
a particular wrongful act, the person sustaining damage,
though a wrongdoer, may recover against the person
causing it, if it be shown that with ordinary care on the
part of the latter, the injury might have been avoided.

3rd. But where one party by his improper conduct makes it
impossible for the other party, who is also acting improperly,
to avoid doing him damage, the person inflicting the in-
jury is not liable, because the negligence of both parties
concurs in producing it.

4th. Where damage is the consequence of pure accident,
neither party is answerable.

In the following case the jury found for the plaintiff,
being of opinion that there was negligence on the side of
the defendant only. It appeared that between seven and
eight o’clock on the evening of the 30th of November,
the plaintiff, who was a female servant, was intending to
cross High Street, Aldgate, and was stepping off the
curbstone for that purpose, when a cabriolet, which came
up at a pace of nine or ten miles an hour, struck against
her and knocked her down, by which she was injured. In
summing up, Mr. Justice Coleridge said, “If the plaintiff

(n) Simkin v. London and North (p) Negligence on both sides, post,
Western Rail. Co., 21 Q. B.D. 453; — p. 289. :
59 L. J.,Q. B. 797; 53 J. P. 85. (g) Both parties to blame, post,
See also Ramsden vy. Lancashire and p. 298. .
Yorkshire Rail. Co., 53 J. P. 183. (7) Altogether an accident, post,
(0) Negligence on one side only, pp. 300.
infra.

287

Rules as to
civil liability.

Negligence on
one side only.
288

Passenger
thrown from
an omnibus.

Horse and
cart left
standing in
the street.

NEGLIGENCE IN THE USE OF HORSES, ETC.

has contributed to the accident by her own neglect, she
cannot recover in this action. I will put this case. If a
person in Oxford Strect sees an omnibus coming, however
furiously, and he will be headstrong enough to try to cross
the street, and is run over, he cannot recover in an action
against the proprietors of the omnibus, as no one has a
right of action if he meets with an accident which by
ordinary care he might have avoided. The cabriolet, it is
said, was coming at the rate of nine or ten miles an hour,
which was a most improper pace at such an hour and in
such a place. Even a much less pace would be too fast at
that time of the evening in such a place as High Street,
Aldgate. If the plaintiff took reasonable and proper care,
and it was on account of the extraordinary speed of the
cabriolet that she could not save herself, and thus met with
the accident, she is entitled to your verdict; but if she, by
her own negligence and want of care, contributed to the
accident, she cannot recover in this action, even though
you should think the driver of the cabriolet was driving
too fast, and was therefore guilty of negligence as well as
the plaintiff. If, however, the plaintiff took reasonable
and proper care, and it was the negligence of the driver
which caused the accident, you ought to find a verdict for
the plaintiff”’ (s).

So, also, where it appeared that the plaintiff was a
passenger on the top of an omnibus, which was struck
by the defendant’s omnibus, and the consequence was
that the omnibus on which the plaintiff sat, continuing its
course, ran against some obstacle, and the plaintiff was
thrown off with considerable violence, it was held by the
Court of Exchequer that the defendant was liable (¢).

If a horse and cart are left standing in the street,
without any person to watch them, the owner is liable for
any damage done by them, though it be occasioned by
the act of a passer-by, in striking the horse. Thus, where
damage had been done under such circumstances, Chief
Justice Tindal said, “If a man chooses to leave a cart
standing in the street, he must take the risk of any mis-
chief that may be done” (w). And in like manner a
master is hable if his cart be so left by his servant (2).

(s) Woolf v. Beard, 8C.& P. 373. The correctness of this decision has,
(t) Rigby v. Hewitt, 5 Ex, 242. however, been doubted. See Mann
(u) Lllidge v. Goodwin, 5 C.&P.  v. Ward, 8 Times L. R. 699—per
1938. Lord Esher, M.R. See also Lygo v.

(a) Lynch v. Nurdin 1 Q. B. 88. Newbolt, 9 Ex. 302.
NEGLIGENT DRIVING.

289

The owner of a cart or carriage is bound to have good Damage from
tackle, and he is liable for an accident in consequence of its *ckle break-

breaking ; as where the chain-stay of a cart broke, and
the horse being frightened ran away and did damage (y) ;
and where, in consequence of the reins breaking, a foot
passenger was run over and injured (s).

ing.

So, also, in the following case, in which it appeared that or froma de-
the defendant was driving his cart down a hill, and the fect in the

horse, which was usually quiet, suddenly commenced kick-
ing, and proceeded at a furious pace. Eventually the
shafts broke, and the horse and cart came into collision
with the plaintiff’s gig, and injured it. It was held that
as the breaking of the shafts showed a defect in the cart,
which raised a presumption of negligence in the owner, he
was liable for the damage sustained by the plaintiff (a).

carriage.

The subject of negligence on both sides was fully con- Negligence on
sidered by the Court of Exchequer in Bridge v. The Grand oth sides.

Junetion Raihvay Company (b), and Mr. Baron Parke there
said, ‘‘ the rule of law is laid down with perfect correctness
in the case of Butterfield v. Forrester (c), that although
there may have been negligence on the part of the plaintiff,
yet unless he might by the exercise of ordinary care have
avoided the consequence of the defendant’s negligence, he
is entitled to recover. But if by ordinary care he might
have avoided them, he is the author of his own wrong.”
And in a later case (@) the law as deducible from pre-
ceding decisions was thus laid down by Wightman, J.,
delivermmg the judgment of the Exchequer Chamber :—
“It appears to us that the proper question for the jury
is, whether the damage was occasioned entirely by the
negligence or improper conduct of the defendant, or
whether the plaintiff himself so far contributed to the
misfortune by his own negligence, or want of ordinary and
common care and caution, that but for such negligence or
want of ordinary and common care and caution on his part,
the misfortune would not have happened. In the first
place, the plaintiff would be entitled to recover; in the

(y) Welsh v. Lawrence, 2 Chit. East, 60; 10 R. R. 433.

262. (@) Tuff v. Warman, 27 L. J., C.
(2) Cotteril v. Turley, 8 C. & P. PP. 322. See also Radley v. London
693. & North Western Rail. Co.,1 App.
(a) Templeman. Haydon, 19L.T. Cas. 754; 46 L. J., Ex. 573; Dub-
218. lin, §¢., Rail. Co. v. Slattery, 3

(b) Bridge v. The Grand Junction App. Cas. 1155; 39 L. T., N.8.
Rail. Co., 3M. & W. 244. 365.
(c) Butterfield y. Forrester, 11

oO. U
290

Where negli-
gence of the
injured party
did not con-
tribute to the
accident.

Where such
negligence
occasioned
part of the
mischief.

Contributory
negligence of
children.

NEGLIGENCE IN THE USE OF HORSES, ETC.

latter not, as but for his own misconduct the mi fortune
would not have happened. Mere negligence or want of
ordinary and common care and caution would not however
have disentitled him to recover, unless it was such that but
for the negligence and want of ordinary care and caution
the misfortune would not have happened; or if the defen-
dant might, by the exercise of caution on his part, have
avoided the consequences of the neglect or carelessness of
the plaintiff.”

Where the negligence of the party injured did not in
any degree contribute to the immediate cause of the acci-
dent, such negligence ought not to be set up as an answer to
an action brought against the person who committed an
injury (e).

A person who is guilty of negligence, and thereby pro-
duces injury to another, cannot set up as a defence that
part of the mischief would not have arisen if the person
had not himself been guilty of some negligence (/).

The extent to which the rule relating to contributory
negligence applies to the case of a child who is so young as
to be incapable of exercising ordinary care and caution is
somewhat doubtful. In Lynch v. Nurdin (g), the Court of
Queen’s Bench, after taking time to consider their judg-
ment, held that the rule in question had no application m
such cases. There, the defendant’s servant had negligently
left a horse and cart unattended in a public street, and the
plaintiff, a child under seven years of age, during his
absence, had climbed on the wheel, whereupon another
child incautiously led the horse on, with the result that the
plaintiff was thrown down and hurt; and it was held that
the defendant was liable in an action for negligence,
although the plaintiff was a trespasser and contributed to
the mischief by his act; and that it was properly left to
the jury to say whether the conduct of the detendant’s
servant was negligent, and, if so, whether his negligence
caused the injury. But the authority of this case has been
doubted (4), and a distinction has been drawn between cases
in which the conduct of the child amounts to what in an
adult would be mere negligence, and those in which it

(e) See Greenland v. Chaplin, 5 (2) Lygo v. Newbold, 9 Exch., at
Ex, 248. See also Brownlow vy.  p. 305—per Alderson, B.; Mann v.
Metropolitan Board of Works, 2 F. Ward, 8 Times L. R. 699—per Lord

& F. 604. Esher, M.R. But see the observa-
(f) Greenland v. Chaplin, 6 Ex. tions of Cockburn, C.J., in Clark v.
243 Chambers, 3 Q. B. D. 388, 339.

(9) 4P. & D. 672; 1Q.B. 29.
NEGLIGENT DRIVING.

amounts to intentional trespass(i). If a child of very
tender years is guilty of what in an adult would be mere
negligence and nothing more, as, for instance, where it is
exercising a right of passage on a public way but in a care-
less manner, and in so doing is injured by an act of which
the negligence of another is the proximate cause, it seems
clear that the conduct of the child can afford no defence to
an action to recover damages on its behalf(¢). But where
such a child is guilty, not of mere carelessness in the doing
of a lawful act, but of a wholly unlawful act such as a
wilful and intentional trespass(/), it is doubtful whether
such conduct will not afford a defence to an action for
negligence. If Lynch v. Nurdin (m) is good law, it is clear
that 1t would not do so, but if, on the other hand, the ruling
in more recent cases is to be accepted, it would seem to be
equally clear that it would (x).

As a general rule of law, every one in the conduct of
that which may be harmful to others if misconducted, is
bound to use due care and skill, and the wrongdoer is not
without the pale of the law for this purpose (0).

Therefore, where the defendant negligently drove his
horses and waggon against and killed an ass, which had
been left in the highway fettered in the fore feet, and was
thus unable to get out of the way of the defendant’s
waggon, which was going at a smartish pace along the
road, Mr. Justice Erskine told the jury, that though the
act of the plaintiff in leaving the donkey on the highway
so fettered as to prevent his getting out of the way of
carriages travelling along it might be illegal, still if the
prowimate cause of the injury was attributable to the want
of proper conduct on the part of the driver of the .waggon,
the action was maintainable against the defendant; and his

(4) Clerk & Lindsell on Torts, p.
386.

(k) Gardner v. Grace, 1 F. & F.
359—Channel, B., at N. P.; Lay v.
Midland Rail. Co., 34 L. T., N.S.
30.

(2) See Clerk & Lindsell on Torts,
p. 387.

(m) See note (g), supra.

(x) See Hughes v. Macfie, 33 L. J.,
Ex. 177, where it was held that a
child of seven who had wrongfully
climbed upon the defendant’s cellar-
flap which the latter had negligently
reared against the wall of his house,
and had heen injured in jumping off,

could not maintain an action. See
also Mangan v. Atterton, L. R., 1
Ex. 239; 35 L. J., Ex. 161, where the
same conclusion was arrived at in the
case of a child of four who had in-
jured its hand in meddling with a
machine exposed by the defendant,
unfenced, in a public place. But see
as to this case the observations of
Cockburn, C.J.,in Clark v. Chambers,
8 Q. B. D. 338, 339. See also Pol-
lock on Torts, 3rd ed., pp. 419, 420,
533, D.

(0) See per Lord Denman, C.J.,
Mayor of Colchester v. Brooke, 7 Q.
B. 377.

U2

291

A wrongdoer
not without
the pale of the
law.

Driving
against an ass
left fettered
on the road.
292

Question of
ordinary care
on the part of
the plaintiff.

On the part
of the defen-
dant.

Circumstances
of the case
must be left

to the jury.

Horse injured
in being led
out of the
stable.

NEGLIGENCE IN THE USE OF HORSES, ETC.

Lordship directed them, if they thought that the accident
might have been avoided by the exercise of ordinary care
on the part of the driver, to find for the plaintiff, which
they accordingly did.

The Court of Exchequer refused a rule for a new trial
which was applied for on the ground of misdirection; and
Mr. Baron Parke said, “The correct rule is laid down in
Bridge v. The Grand Junction Railway Company (p),
namely, that the negligence which is to preclude a plain-
tiff from recovering in an action of this nature, must be
such as that he could by ordinary care have avoided the
consequences of the defendant’s negligence. Although 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” (q).

In an action for damage occasioned by the defendant’s
negligence, a material question is, whether or not the
plaintiff might have escaped the damage by ordinary care
on his own part (7).

There is negligence, and a want of ordinary care, if a
person riding a vicious horse, applies the spur when in close
proximity to a bystander, and the horse kicks out and
injures him: but there would not be negligence nor a want
of ordinary care, if the person riding the horse is not aware
that it is a vicious one, and it suddenly kicks out without
provocation, and kills a bystander (s).

The defendant however is not excused merely because
the plaintiff knew that some danger existed through the
defendant’s neglect, and voluntarily incurred such danger ;
the amount of danger, and the circumstances which led the
plaintiff to incur it, are for the consideration of the jury (7).

Therefore, where Commissioners of Sewers had made a
dangerous trench in the only outlet from a mews, putting
up no fence, and leaving only a narrow passage, on which
they heaped rubbish, and a cabman, in the exercise of his
calling, attempted to lead his horse out over the rubbish,
and the horse fell and was killed, for which loss he brought

(p) Bridge v. The Grand Junction (r) Clayards v. Dethick, 12 Q. B.
Rul. Co., 3M. & W. 244. 439.
(q) Davies vy. Mann, 10 M. & W. (s) North v. Smith, 10 0. B., N.S.

646. 572.
NEGLIGENT DRIVING.

an action :—It was held by the Court of Queen’s Bench
that the plaintiff was not disentitled to recover because he
had, at some hazard created by the defendants, brought his
horse out of the stable. Also, that the case was properly
left to the jury on the question whether or not the plaintiff
had persisted, contrary to express warning at the time (as
to which there was contradictory evidence), in running upon
a great and obvious danger (r).

The mere fact of an accident happening to a very young
child will not raise a presumption of negligence any more
than in the case of an adult. In a case in which a child
three years old strayed upon a railway, and had its leg cut
off by a passing train, it was therefore held that in the
absence of any evidence to show any negligence on the part
of the company, they were not responsible for the injury (¢).

If a person using ordinary care is injured by falling
over a heap on a highway, the person who left it there is
liable (vz).

But a person who is injured by an obstruction, against
which he may fall on a highway, cannot maintain an action,
if it appear that he was riding with great violence and want
of ordinary care, without which he might have seen and
avoided the obstruction. Thus Lord Ellenborough, C.J.,
said, ‘‘a party 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 ” (2).

The opportunity, however, of seeing stones during the day
is no defence to an action for damage caused by running over
them at night (y).

When a railway company constructs its line across a
highway on a level under the sanction of an Act of Parlia-
ment, it is the duty of the company to keep the crossing in
a proper state for the passage of carriages across the rails;
if, therefore, a carriage is damaged in consequence of the
rails being too high above the surface of the ruadway, the
company is liable (z).

(r) Clayards v. Dethichk, 12 Q. B.
439.

Carlisle Spr. Ass. 1850.
(z) Oliver v. North Eastern Rail.

(t) Singleton v. Eastern Counties
Rail. Co., 7 C. B.,N. 8. 287.

(u) Tucker v. Axbridge Highway
Board, 53 J. P. 87.

(a) See Butterfield v. Forrester, 11
Enst, 61; 10 R. R. 433.

(y) Per Rolfe, B., Grieve v. Milton,

Co., L. R., 9 Q. B. 409; 43 L. J.,
Q. B. 198. See also Sadler v. South
Staffordshire, §c., Steam Tramways
Co, 23 Q. B. D. 17; 68 L. J,
Q. B. 179; 60 L. T., Wy. 8. 344;
37 W. R. 204—C. A.

293

Where no
negligence on
the part of the
defendant.

A heap left on
the highway.

Opportunity
of seeing the
obstruction.

Running over
stones at
night.

Level crossing
in improper
state.
294

Leaving the
highway.

Excavation a
public
Nuisance.

Steam roller.

‘Trespasser
may maintain
an action.

NEGLIGENCE IN THE USE OF HORSES, ETC.

If a person leaves the highway and sustains injury, he
cannot recover any damages. Thus, where a person stepped
aside at night from a highway, and fell into the foundation
of a house, and broke his leg, and brought an action against
the defendant, Mr. Justice Cresswell held that there was a
wilful departure from the highway, and, in summing up,
directed the jury that the first question for them to consider
was, whether the excavation made by the defendant pre-
vented the public from passing in safety along the highway.
A second question, involved in the first, was, whether the
defendant was bound to have fenced off the excavation ;
and, thirdly, had the defendant tumbled into the hole while
passing along the highway. The evidence was that he had
departed from the road. The jury found a verdict for the
detendant (a).

But when the newly-made and unfenced excavation for a
house adjoins an immemorial public way, which is found by
the jury to render the way unsafe to those who use it with
ordinary care, it is a public nuisance, though the danger
consists in the risk of accidentally deviating from the road ;
for the danger thus created may reasonably deter prudent
persons from using the way, and thus the full enjoyment of
it by the public is, in effect, as much impeded, as in the case
of an ordinary nuisance to a highway (d). And a private
injury arising from a public nuisance is the subject-matter otf
an action for damages (c).

Where a steam roller, though lawfully on the highway,
constitutes a nuisance, the owners are liable for damage
caused thereby although they have not been guilty of any
negligence, and it is a question for the jury in each case
whether the steam roller was or was not a nuisance on the
occasion complained of (d).

It by no means follows that, because the person injured is
a trespasser on the land at the time the injury was sustained,
he cannot maintain an action. A trespasser is liable to an
action for the injury which he does; but he does not forfeit.
his right of action for an injury sustained (e).

(a) Firth v. Ackroyd, before Mr. C. P. 400; 43 L. J., C. P. 162; 30
Justice Cresswell, York Spr. Ass. L.T., N. 8. 362; 22 W. R. 681.

March 10, 1853. (d) Jeffrey v. St. Pancras Vestry,
(6) Barnes v. Ward, 9 C. B. 392; 63 L. J., Q. B. 618.
Hadley v. Taylor, L. R., 1 C. P. 53. (e) Sadler v. Henlock, 24 L. J.,

(¢) Hardcastle v. South Yorkshire  Q. B. 1388; Blake v. Thirst, 2 H. &
Rail. Co., 28 L. J., Ex. 139, See C. 20; Butler v. Hunter, 7H. & N.
also Hounsellv. Snyth, 7 C.BN.8. 826.

731; Benjamin v. Storr, L. R., 9
NEGLIGENT DRIVING.

_ The proper and true test of legal liability in these cases
is, whether the excavation be substantially adjoining the
way. When an excavation is made adjoining a public
way, so that a person walking on the public way might,
by making a false step, or being affected with sudden
giddiness, or, in the case of a horse or carriage, who
might by the sudden starting of the horse be thrown into
the excavation, it is reasonable that the person making
such an excavation should be liable for the consequences.
But it would not be reasonable that he should be liable for
the consequences, when the excavation is made at some
distance from the way, and the person falling into it
would be a trespasser upon the defendant's land, before he
reached it (e).

But it is not only when injury results to persons using
a public way from the negligence of adjoining proprietors,
that an action lies. It les also against the owner of a
private way for injury to persons lawfully, and by his
permission, using it, if caused by the negligence of his
servants, and if not arising from the risks attendant on
the ordinary nature of the business carried on, as where
the injury was caused by negligently lowering goods from
a warehouse, under which the private way passed (/).

Where the defendant’s horse by the negligence of his
servant ran away with a cart and turned into the yard of
the defendant’s house, which opened on to the highway,
and the plaintifi’s wife who happened to be paying a visit at
the house ran out into the yard to see what was the matter,
when she was met and knocked down by the horse and cart,
it was held that as the defendant’s servant was not bound to
anticipate that the woman would be in the yard, there was
no duty on the part of the defendant towards her, and that
the action was therefore not maintainable (9).

Where one person having a right over a private road
causes an obstruction which results in an injury to another
person having a similar right, the person causing the ob-
struction is liable. In Clark v. Chambers (h), the defen-

(e) Hardcastle v. South Yorkshire also Murley v. Grove, 46 J. P. 360.
Rail. Co., 28 L. J., Ex. 189. See (g) Tothausen v. Davies, 58 L. J.,
also Hounsell v. Smyth,7C.B.,N.S.  Q. B. 98—C. A. See also Batchelor
731; Benjamin v. Storr, L. R., 9  y. Fortescue, 11 Q. B. D. 474—
C. P. 400; 43 L.J.,C. P. 162; GLA.

30 L. T., N. 8. 362; 22 W. R. (h) Clark v. Chambers, 3Q. B. D.

631. 327: 47 L.J., Q. B.427; 38L.T.,
(f) Gallagher v. Humphery,6L. N.S. 454.

T., N.S. 684; 10 W. R. 664. See

295

True test of
legal liability.

Owners of
private ways
may be liable
for negli-
gence.

Injury to
person unex-
pectedly on
defendant’s
premises.

Obstruction
by licensee of
private road.
intervening
act of third
party.
296

Liability of
contractor.

NEGLIGENCE IN THE USE OF HORSES, ETC.

dant, who was in the occupation of certain premises abutting
on a private road consisting of a carriage and footway over
which he had a right of way, which premises he used for
the purposes of athletic sports, had erected a barrier across
the road to prevent persons driving vehicles up to the fence
surrounding his premises and overlooking the sports. In
the middle of this barrier was a gap, which was usually
open for the passage of vehicles, but which, when the sports
were going on, was closed by means of a pole let down
across it. It was admitted that the defendant had no legal
right to erect this barrier. Some person, without the de-
fendant’s authority, removed a part of the barrier armed
with spikes, commonly called cheraux-de-frise, from the car-
riage-way where the defendant had placed it, and put it in
an upright position across the footpath. The plaintiff, ona
dark night, was lawfully passing along the road on his way
from one of the houses to which it led. He felt his way
through the opening in the middle of the barrier, and
getting on the footpath was proceeding along it when his
eye came in contact with one of the spikes of the chevauz-
de-frise and was injured. It was not suggested that the
plaintiff was guilty of any negligence contributing to the
accident, and the jury found that the use of the chevaue-
de-frise in the road was dangerous to the safety of the per-
sons using it. It was held, that the defendant, having
unlawfully placed a dangerous instrument in the road, was
liable in respect of injuries occasioned by it to the plaintiff,
who was lawfully using the road, notwithstanding the fact
that the immediate cause of the accident was the inter-
vening act of a third party in removing the dangerous
instrument from the carriage-way (/).

Although where a contractor does what he contracts to
do, the act of the employed is the act of the employer; yet
where the act to be done is lawful, the contractor is lable
for anything done negligently, or beyond his contract (i).
But a contractor lawfully employed to construct a sewer
under a road, is not liable for injury caused to an in-
dividual, through a hole having formed in the roadway
from the natural subsidence of the ground, the work having
been properly completed by the defendant (A).

(h) Clark v. Chambers, 3Q.B.D. LL. J., Q. B. 169.

327; 47 L.J.,Q. B. 427: 38 L. T., (k) Hyams v. Webster, L. R., 2

N.S. 454. Q. B. 264; LR. 4 Q. B.138—
(i) Ellis vy. Sheffield Gas Co., 23 Ex. Ch.

L.J., Q. B. 42; Gray v. Pullen, 32
NEGLIGENT DRIVING.

So, if a man employs another to do a thing, and there
are several ways of doing it, one criminal and another
innocent, and he does it in a criminal manner, the em-
ployer is not liable (/).

If a contractor, however, is employed to do an unlawful
act, the employer is liable, because in such case the act
of the employed is the act of the employer. Therefore,
where the defendants had employed a contractor to open,
without legal authority, the streets of Sheffield, and the
plaintiff was injured by the rubbish, it was held that this
being the act from which the injury arose, the defendants
were liable (m). And where a duty is imposed on the
defendant by common law (7), or by a statute (0), he
cannot excuse himself by throwing the blame on his
contractor.

The question in such cases is, whether the injury was
the act of the party as the employer's servant, or in the
character of contractor; because in the first place the em-
ployer would be liable to an action, and in the second he
would not(p). And the test applicable to the determina-
tion of this fact is whether the employer has any control
over the persons employed as to the manner in which their
work should be performed (7).

Thus the defendant with the consent of the owner of
the soil and the surveyor of the district, employed P., who
was an ordinary labourer, but nevertheless a person par-
ticularly skilled in the construction of drains, to cleanse a
drain, which ran from the defendant’s garden under the
public road, and paid P. five shillings for the job. The
defendant had never before employed P., and did not in
any way interfere with or direct him in doing the job. But
it was held that the relationship of master and servant had
been established between the defendant and P., so as to
render the defendant liable for an injury occasioned to the
plaintiff, whilst riding on the public road, by reason of the

(2) Peachey v. Roland, 13 C. B.
82. See, too, Cleveland v. Spier, 16
B., N. 8. 399.

(m) Ellis v. Sheffield Gas Co., 23
J.,Q. B. 42. And see Whiteley
Pepper, 2 Q. B. D. 276; 461L.J.,
B. 486; 36 L. T., N.S. 588; 25
. R. 607.
(n) Larry v. Ashton, 1 Q. B. D.
314; 45 L.J.,Q. B. 260; 34L.T.,
N. 8.97; 24 W. R. 581. See also
Bower v. Peate, 1 Q. B. D. 321; 45

ray

c.
L.
v.

Q.
Ww

L. J., Q. B. 446; 35 L. T., N. 8.
321.

(0) Hole v. Sittingbourne Rail. Co.,
6H. & N. 488; 30 L. J., Ex. 81.

(p) Knight v. For, 5 Ex. 725;
Overton v. Freeman, 21 L. J., C. P.
52.

(q) Sadler v. Henlock, 24 L. J.,
Q. B. 138; Blake v. Thirst, 2H. &
C. 20; Butler v. Hunter,7 H. & N.
826.

297

Where there
are several
ways of doing
a thing.

Liability of
an employer.

What is the
question in
such cases.

Drain re-
paired by an
ordinary but
skilful
labourer.
298

Stones left by
a sub-con-
tractor.

Statutory
duty.
Surveyor of
highways.

Works exe-
cuted under
local acts.

Both parties to
blame.

NEGLIGENCE IN THE USE OF HORSES, ETC.

negligent manner in which P. had left the soil of the road
over the drain, because P. was not a person exercising the
independent business of making and repairing drains, but
only a labourer chosen by the defendant in preference to
any other person (7).

But in a case in which the defendants were employed by
A. to pave a district, and contracted with B. to pave one of
the streets, and B.’s workmen, in the course of paving the
street, left some stones at night in such a position as to con-
stitute a public nuisance, and the plaintiff was injured by
falling over these stones; it was held that, as no personal
interference of the defendants with, or sanction of, the work
of laying down the stones was proved, the defendants were
not liable (s).

When a surveyor of highways has been ordered by a
vestry to do certain works on a highway, and during the
performance of those works an accident occurs in conse-
quence of the road being left in a dangerous condition, the
surveyor is guilty of neglect of a statutory duty, under
5 & 6 Will. 4, c. 50, s. 56, and will be liable in an action
for damage, notwithstanding that he has contracted with a
third party for supplying the necessary labour, and has not
personally interfered with the work (¢).

If in the execution of works authorized by Act of Par-
hament damage be sustained, and the Act provides a special
mode in which compensation for such damage may be
recovered, no action will lie for it. But this only relates
to works carefully and skilfully executed, and if there be
a want of proper skill on the part of those executing the
works an action for the negligence, to recover damages for
the injury thus sustained, will lie (oe).

Where the negligence of both parties concurs in pro-
ducing the damage, so that both are to blame, neither party

(vr) Sadler v. Henlock, 24 L. J.,
Q. B. 188; Blake v. Thirst, 2 H. &
C. 20; Butler v. Hunter, 7H. &N.
826.

(s) Overton v. Freeman, 21 L. J.,
C. PP. 52; Gray v. Pullen, 32 L. J.,
Q. B. 169; this latter case was re-
versed in the Exchequer Chamber,
34 L. J., Q. B. 265; but the rea-
soning on which the decision was
founded has been disapproved; see
Wilson v. Merry, L. R., 1H. L. 326,
341.

(t) Luylor v. Greenhalgh, 24 W.

R. 311—C. A.; reversing L. R., 9
Q. B. 487; 43 L.J., Q. B. 168; 31
L. T., N.S. 184; 23 W. R. 4; see
also Pendlebury v. Greenhalgh, 1 Q-
B.D. 36; 45 L.J.,Q. B.3; 33
L. T., N. 8. 372; 24 W. R. 98—
C. A. In Hardeastle v. Bielby,
[1892] 1Q. B. 709; 61 L. J., M.C.
101, a conviction for causing an ob-
struction under similar circumstances
was quashed.

(2) Clothier v. Webster, 31 L. J.,
C. P. 316; Ohrby v. Ryde Commis-
sioners, 33 L. J., Q. B. 296.
NEGLIGENT DRIVING,

can recover. Thus, where the plaintiff, in crossing a road,
was knocked down and seriously injured by the defendant’s
cart, Chief Justice Tindal told the jury that they must be
satisfied that the injury was attributable to the negligence
of the driver and to that alone, before they could find a
verdict for the plaintiff; for if they thought that it was
occasioned in any degree by the improper conduct of the
plaintiff in crossing the road in an incautious and imprudent
manner, they must find their verdict for the defendant (z).
And where an action was brought for an injury to the
plaintiff’s chaise by the defendant’s carriage, Mr. Justice
Alderson left it to the jury to say whether the injury was
occasioned by negligence on the part of the defendant’s
servant, without any negligence on the part of the plaintiff
himself; for that if the plaintiff's negligence in any way
concurred in producing the injury, the defendant would be
entitled to the verdict (y). So, also, if a person sees
another carriage coming furiously on the wrong side of the
road, and does not get out of the way when he has the
opportunity, he cannot recover for any injury he may
sustain (3).

In an action brought by an infant plaintiff against a
railway company for an injury from an accident, which was
caused by the joimt negligence of the defendants and the
grandmother of the child, who had charge of it, the child
being unable to take care of itself, it was held by the
Exchequer Chamber, affirming the judgment of the Court
Court of Queen’s Bench, that the child could not maintain
an action against the company, as a complete identification
was constituted between the plaintiff and the party whose
negligence contributed to the damage (a).

In the case of Thorogood v. Bryan (b), where a person
was run over and killed by an omnibus which was racing,
and the negligence of the driver of the omnibus, in which
the deceased was a passenger, was relied on as a defence to
the action brought by the widow of the deceased, it was
held that the deceased having trusted the party by selecting
the particular conveyance, he had so far identified himself
with the carriage in which he was travelling, that want of
care on the part of its driver was a defence for the driver

(2) Hawkins v. Cooper, 8 C. & P. (a) Waite v. North-Eastern Rail.
473. Co., E. B. & E. 719.

(y) Pluckwell v. Wilson, Bart., 5 () Thorogood v. Bryan, 8 C. B.
C. & P. 375, 130.

(2) See Reed v. Tate, post, p. 307.

299

Identification
of child with
person in
charge of it.

Doctrine of
identification
of passenger
with driver
exploded.
300

Altogether an
accident,

NEGLIGENCE IN THE USE OF HORSES, ETC.

of the other carriage, which directly caused the injury ; and
that this was in accordance with the opinion expressed by
the Court of Exchequer in Bridge v. The Grand Junction
Railway Company (ec). The soundness of this doctrine was,
however, doubted from the first in this country (d), and sub-
sequently in Scotland (¢) and America (/), and the former
case has now been finally overruled (gy). The direction to
the jury in an action by a passenger on an omnibus against
the owner of another vehicle for compensation for damages
sustained by collision should therefore be, ‘ was there negli-
gence on the part of the driver of the other vehicle which
caused the accident? if so it is no answer to say that there
was also negligence on the part of the omnibus driver,”
the plaintiff in such case not being disentitled to recover
by reason of the negligence of the driver of the omnibus on
which he was a passenger (/).

Where the injury arises altogether from accident the
defendant is not liable (7). Thus, where an action of
trespass was brought for injury done to a horse by a pony
and chaise running against it, the plaintiff called witnesses
who said they saw the pony and chaise standing half an
hour in the street without any person to take care of them,
and also they afterwards saw the pony run away with the
chaise and run against the plaintifi’s horse; but they did
not know the cause of the pony’s starting. It was sworn
on the part of the defendant, that his wife was holding the
pony by the bridle, when a Punch and Judy show coming
by frightened the pony, which ran away, and almost pulled
down the defendant’s wife while she tried to hold it in, and
she was obliged at length to let go the rem. Lord Den-
man, C.J., in summing up, said to the jury, “If the facts
are true as suggested for the defence, I very much think
you would be disposed to consider this as an znevitable
accident, one which the defendant could not prevent.”

(c) Bridge v. The Grand Junction
Rail. Co.,3 M. & W. 244.

(d) 1 Sm. L. C. 8rd ed. by Willis
and Keating, at p. 132 a., 9th ed.
p. 323. In this doubt Parke, B.,
seems to have concurred. See Zhe
Bernina, 12 P. D. at p. 71—per
Lord Esher, M.R. See also Zhe
Milan, Lush. 388.

(ec) <ldams v. Glasgow and South
Iestern Rail. Co., 2 Court Sess. Cas.
4th ser. 215.

(f) Sce Little v. Hacket, 9 Davis

Supr. Ct. U.S. 360.

(g) dfills v. Armstrong (The
Bernina), 13 App. Cas. 1; 57 L.J.,
P. D. & A. 65; 58 L.T., N.S.
423; 36 W. R. 870; 52 J. P. 212.

(i) Matthews v. London Street
Tramways Co.,58 L. J., Q. B. 12;
60 L. T., N. 8.47; 52 J. BP. 774.
See also Pike v. London General
Omnibus Co., 8 Times L. R. 164.

(¢) Per Alderson, J., Pluckwell v.
Wilson, 6 C. & P. 375.
NEGLIGENT DRIVING.

However, the jury disbelieved the defendant’s evidence, and
found a verdict for the plaintiff (7).

In the following case, a servant was sent with a van and
a horse on some errand by the defendant, with directions
to bring back with him another horse, which had been left
on the road. When the servant obtained possession of the
second horse, which seemed to have been in the habit of
following the van without being tied, he gave a boy per-
mission to ride him. As the servant drove on, he came
upon the plaintiff who was returning home late at night
with a hand-barrow, and, seeing him, he turned his horse’s
head out of his direct line to avoid him. The boy and
horse behind, however, went on without noticing the plain-
tiff, and the consequence was they both fell over him and
severely injured him. On the trial Chief Baron Pollock
nonsuited the plaintiff, being of opinion that the defendant
was not liable for this, and ruled that the declaration was
not supported, as the horse which did the injury was not
conducted or driven by the servant of the defendant. And
the Court of Exchequer afterwards held that the Chief
Baron’s ruling was correct, and that the facts clearly showed
that the injury sustained by the plaintiff was the result of
the purest accident (4).

This was held to be the case, where the defendant’s
horse, being frightened by the sudden noise of a butcher’s
cart, which was driven furiously along the street, became
ungovernable, and plunged the shaft of a gig into the breast
of the plaintiff’s horse (7). So, too, where a horse ridden
by the defendant was frightened by a clap of thunder, and
ran over the plaintiff, who was incautiously standing with
others in the carriage-road (m2).

In Hammack v. White (n), the defendant having bought
a horse at Tattersall’s, the next day took him out to try
him in Finsbury Circus, a much-frequented thoroughfare.
From some unexplained cause the horse became restive,
and notwithstanding the defendant’s well-directed efforts
to control him, ran upon the pavement, and killed a man.
It was held that these facts disclosed no evidence of negli-
gence, which the Judge was warranted in submitting to
the jury; Erle, C.J., saying, “I am of opinion that the

(7) Goodman v. Taylor,5C.&P. 213.
410. (m) Gibbons vy. Pipper, 1 Ld.
(k) Bird v. Sharpe, Ex. Nov. 5, Raym. 38.
1853. (n) Hammack v. White, 11 C. B.,
(1) Wakeman v. Robinson, 1 Bing. N.S. 588.

301

Running over
a person at
night.

Where it is
the result of a
sudden fright
of a horse.

Hammack v.
IVhite.
302

Manzoni v.
Douglas.

NEGLIGENCE IN THE USE OF HORSES, ETC.

plaintiff in a case of this sort is not entitled to have his
case left to the jury, unless he gives some affirmative
evidence that there has been negligence on the part of the
defendant. The sort of negligence imputed here is either
that the defendant was unskilful in the management of the
horse, or imprudent in taking a vicious animal, or one with
whose propensities or temper he was not sufficiently
acquainted, into a populous neighbourhood. The evidence
is, that the defendant was seen riding a horse at a slow
pace, that the horse seemed restless and the defendant was
holding the reigns tightly, omitting nothing he could do to
avoid the accident; but that the horse swerved from the
roadway on to the pavement, where the deceased was walk-
ing, and knocked him down, and injured him fatally. I
can see nothing in this evidence to show that the defendant
was unskilful as a rider or in the management of a
horse. There is nothing which satisfies my mind affrma-
tively that the defendant was not quite capable of riding so
as to justify him in being with his horse at the place in
question. It appears that the defendant had only bought
the horse the day before, and was for the first time trymg
his new purchase,—using his horse in the way he intended
to use it. It is said that the defendant was not justified in
riding in that place a horse whose temper he was un-
acquainted with. But I am of opinion that a man is not to
be charged with want of caution because he buys a horse
without having had previous experience of him. There
must be horses without number ridden every day in London
of whom the riders know nothing. <A variety of circum-
stances will make a horse restive. The mere fact of
restiveness is not even primd facie evidence of negli-
gence ” (0).

Where a horse drawing a brougham under the care of
the defendant’s coachman in a public street suddenly, and
without any explamable cause, bolted, and, notwithstanding
the utmost efforts of the driver to control him, swerved on
to the footway and injured the plaintiff, it was held that
there was no evidence of negligence to go to the jury: and
that the fact that the horse had cast a shoe shortly after he
bolted, and that the driver did not under the circumstances
in which he was placed call out or give any warning, did
not alter the case (/).

(0) Hammack vy. White, 11 C.B.,  D. 145; 40 L.J., C. P. 289; up-

N.S. 588. holding Eammack v. White, ubi
(p) Manzoni v. Douglas, 6 Q. B. — supra.
NEGLIGENT DRIVING.

In all cases, therefore, where a horse runs away and
inflicts an injury, if the rider or driver have not acted in
such a manner as would lead a jury to suppose that his
conduct must have contributed to the accident, he is not
answerable (q).

But the rule that a person is not answerable for injury
resulting from circumstances over which he has no control
admits of this qualification, namely, that if a person is
aware beforehand that the circumstances in which of his
own free will he is about to place himself, will put him in
a position over which he has no control, and in which he
will probably cause injury to others, he will then be
answerable for an injury so caused; thus, if in the case
quoted above of Hammack v. White, the defendant had
been proved to have known beforehand that the horse was
vicious and unmanageable (7), he would have been held
responsible.

‘Where a passenger in an omnibus was injured by a
blow from one of the horses, which had kicked through the
front panel of the vehicle, and there was no evidence on
the part of the passenger that the horse was a kicker; but
it was proved that the panel bore marks of other kicks, and
that no precaution had been taken by the use of a kicking
strap or otherwise against the possible consequences of a
horse striking out, and no explanation was offered on the
part of the owner of the omnibus; it was held that there
was evidence of negligence proper to be submitted to a
jury (s).

The proof of negligence must be affirmative. Therefore
where there is a perfectly even balance of evidence there is
no negligence. ‘Thus, in the case of Cotton v. Wood (t),
the plaintiff's wife, on a dark night, and in a snowstorm,
proceeded slowly, accompanied by another female, to cross
a crowded thoroughfare, whilst the defendant’s omnibus
was coming up on the right side of the road, and at a
moderate pace. There was abundant time for the women
to have got safely across, and they had got so far across
as to have passed in front of the omnibus, when they were
alarmed by the approach of another vehicle from the

(g) See ante, p. 281; Rex v. Tim- Times L. R. 812.
mins, 7 C.& P. 500; and see Holmes (s) Simson v. London General
v. Mather, L. R., 10 Ex. 261; 44 Omnibus Co., L. R., 8 C. P. 890; 42
L.J., Ex. 176; 83L.T., N.8.361. L.J., C. P.112; 28 L. T., N.S.
(r) See judgment of Willes, J., 560; 21 W. R. 595.
Hammack v. White, 11 C. B., N. 8. (t) Cotton v. Wood, 8C. B.,N. 8.
597. See also Villiers v. Avey, 3 568.

303

Horse running
away.

Qualification
of rule.

Proof of neg-
ligence must
be affirmative.
304

Where evi-
dence is

equally con-

sistent with
negligence

and no neg-

ligence.

NEGLIGENCE IN THE USE OF HORSES, ETC.

opposite direction, and turned back; the result of which
was that the plaintiff's wife was knocked down and run
over by the omnibus, and was so injured that she died.
The only circumstance which was at all suggestive of negli-
gence on the part of the defendant was that, though he saw
the women cross in front of his omnibus, he had at the
moment when they turned back looked round to speak to
the conductor, and therefore was not aware of their danger,
until warned by a cry of a bystander, when it was too late
to avert the mischief.

It was held that there was in this case no proof of
negligence on the part of the defendant, for it was not
shown that there existed some duty owing from the defen-
dant to the plaintiff, of which there had been a breach.
And Erle, C.J., said, ‘‘ Where it is a perfectly even balance
upon the evidence whether the injury complained of has
resulted from the want of proper care on the one side or
on the other, the party who founds his claim upon the
imputation of negligence fails to establish his case.”
“One of the plaintiff’s witnesses stated that the driver
was looking round at the time to speak to the conductor.
That clearly would be no affirmative proof of negligence.
The man was driving on his proper side, and at a proper
pace. As far as the evidence goes, there appears to me
just as much reason for saying that the plaintiff’s wife
came negligently into collision with the defendant’s horses
and omnibus as for saying that the collision was the result
of negligence on the part of the defendant’s servant.”
“A scintilla of evidence, or a mere surmise that there may
have been negligence on the part of the defendants, clearly
would not justify the Judge in leaving the case to the
jury (w). There must be evidence upon which they might
reasonably and properly conclude that there was negli-
gence.” ‘The very vague use of the term negligence has
led to many cases being left to the jury, in which I have
been utterly unable to find the existence of any legal duty,
or any evidence of a breach of it.”

And in the same case (x) Williams, J., said, “There
is another rule of the law of evidence, which is of the
first importance, and which is fully established in all the

(#) Quoting from Williams, J., in Smith v. Midland Rail. Co.,57L.T.,
Toomey vy. London, Brighton, and N.S. 818; 62 J.P. 262.
South Coast Rail. Co., 3 C.B., N.S. (x) Cotton v. Wood, 8 C. B., N.S.
146. See also Cornmanv. Eastern 568, ante, p. 303.
Counties Rail. Co., 4 H. & N. 781;
NEGLIGENT DRIVING,

Courts, vtz., that where the evidence is equally consistent
with either view,—with the existence or non-existence of
negligence,—it is not competent to the Judge to leave the
matter to the jury.”

So, in a case in which the defendant’s horse, being on
a highway, kicked the plaintiff, a child who was playing
there. There being no evidence to show how the horse
got to the spot, or that the defendant knew that he was
there, or that the defendant knew that he was accustomed
to kick, or that the horse was accustomed to kick, or what
induced him to kick the child, it was held that there was
no evidence from which a jury would be justified in in-
ferring that the defendant had been guilty of actionable
negligence (y).

In Abbott v. Freeman (s), the defendant was the pro-
prietor of a yard and premises used for the sale of horses.
The plaintiff attended a sale, and was walking up the
yard behind a row of spectators, who were watching a
horse then on sale. In order to show the horse’s pace, a
servant of the defendant led it with a halter down a lane
formed by the spectators on one side, and a blank wall on
the other. There was no barrier between the horse and
the spectators, and when the horse was about ten yards
from the plaintiff, another servant of the defendant struck
it with a whip in order to make it trot. On being struck
the horse swerved into and through the crowd, and kicked
and injured the plaintiff. It was a usual thing fora man
to be stationed with a whip at the particular point when
horses were brought out for sale. There was no evidence
as to the kind of blow that was given, nor the character of
the horse, nor how it was being led, nor that it was custo-
mary to put a barrier for the protection of the public in
yards where horses were being sold. The plaintiff sued
the defendant to recover damages for injuries caused by the
negligence of the defendant’s servant; and it was held that
there was no evidence upon which the jury could reason-
ably find negligence on the part of the defendant.

But there are cases in which the mere occurrence of
an accident is primd facie proof of negligence, the pre-
sumption depending upon the nature of the accident.
Thus in a case in which the plaintiff, while walking in a
street in front of the house of a flour-dealer, was injured

(y) Cox v. Burbidge, 13 C0. B., Reversing 34 L. T., N. S. 544—
N.S. 430. x. D.
(z) 85 L. T., N. 8. 783—C. A.
O. x

305

‘When a horse
standing in a
highway
kicked a child.

Horse kicking
at sale.

Accident itself
sometimes
affirmative
proof of neg-
ligence.
306

Evidence
identical with
that required
for man-
slaughter.

Customary
rules of
driving.

Right side of
the road.

NEGLIGENCE IN THE USE OF HORSES, ETC.

by a barrel of flour falling upon him from an upper
window, it was held that the mere fact of the accident
without any proof of the circumstances under which it
occurred was evidence of negligence to go to the jury in
an action against the flour-dealer, the declaration alleging
that the plaintiff was injured by the negligence of the
defendant’s servants. And Pollock, C.B., said, ‘“ There
are certain cases of which it may be said ves ipsa loquitur,
and this seems to be one of them. The Courts have held
that from certain occurrences negligence may be presumed,
railway accidents, &c.” (a).

It may be taken as a rule that the same evidence is re-
quired to establish a case of negligence as would suffice to
convict a man of manslaughter (6).

Rule of the Road.

The customary rules of driving are, first, that in meeting
each party should bear or keep to the left; secondly, that
in passing, the foremost person bearing to the left, the other
shall pass on the off-side; thirdly, that in crossing, the
driver coming transverse, shall bear to the left-hand, so
as to be behind the other carriage (c). And these rules
are judicially recognised without proof (d). It is customary
for foot passengers to take the right-hand side.

In the case of highways not regulated by special Acts,
the law of the road is a statutory enactment under 5 & 6
Will. 4, c. 50, s. 78; and by section 85, sub-section (1)
of the Local Government Act, 1888, “bicycles, tricycles,
velocipedes, and other similar machines,”’ are declared to be
carriages within the meaning of the Highway Acts.

If there be no peculiar circumstances to the contrary, it
is the duty of each party to keep the regular side of the
road. However, a person riding or driving is not bound to
keep his side; but if he does not, he must use more care,
and keep a better look-out, to avoid collision, than would
be necessary if he were on the proper part of the road (e).

(a) Byrne v. Boadle, 33 L.J., Ex. 110. B., N.S. 588.
13. See also Scott v. London Dock (c) 2 Steph. N. P. 984.
Co., 138 W. R. 410, and Kearney v. (dq) 1 Taylor on Evidence, 9th
London, Brighton and South Coast ed. 6.
Ral. Co, L. RB. 5 Q. B. 411; 0 Alexander v. Laidley, Cor.
aftirmed in Ex.Ch., L.R.,6Q.B.759. Alderson, B., Carlisle Spr. Assizes,
(b) See judgments of Williams, J., 1847; and Pluehwell y. Wilson, 5
and Wilde, J.. Hammack v. White, C. & P. 375.
RULE OF THE ROAD.

But the mere fact of a man driving on the wrong side of
the road is no evidence of negligent driving in an action
brought against him for running over a person, who was
crossing a road on foot (/).

If a person driving on the wrong side of the road in the
dark accidentally injures another carriage or person, he is
answerable for it (g).

If a person driving a gig on his proper side sees a gig
coming down on the wrong side of the road, he must not
let himself be run down, but if he have time and room,
must get out of the way; for if he does not, he cannot
bring an action and recover damages (A).

And where an action was brought for negligently
driving against the plaintiffs horse, and it appeared that
the defendant’s chaise came out of another road, and in
crossing over to its right side broke the leg of the plain-
tiffs horse, which was then on the wrong side of the
road. Lord Ellenborough held that the circumstance of
the person being on the wrong side of the road was not
sufficient to discharge the defendant; for though a person
might be on his wrong side of the road, if the road was of
sufficient breadth, so that there was full and ample room
for the party to pass, he was of opinion that he was bound
to take that course which would carry him clear of the
person who was on his wrong side; and that if an injury
happened by running against such a person he would be
answerable. A person being on his wrong side of the road
could not justify another in wantonly doing an injury
which might be avoided. The question, therefore, to be
left to the jury was, whether there was such room, that,
though the plaintiff’s servant was on his wrong side of the
road, there was sufficient room for the defendant’s carriage
to pass between the plaintiff’s horse and the other side of
the road (2).

And in another similar case it was held by the Court of
King’s Bench, that whatever might be the law of the road,
it was not to be considered as inflexible and imperatively
governing cases where negligence was the question. In the
crowded streets of the metropolis, situations and circum-

Sf) Lloyd v. Ogleby,5C.B.,N.8.  v. Bray, 3 Hast, 593.
ef , F (2) Per Patteson, J., Reed v. Tate,

(g) See Handayside v. Wilson, 3 Newcastle Spr. Ass. 1846; and see
C. & P. 5380; Alexander v. Laidley, Case of the Commerce, 3 Rob. Adm.
ante, p. 306; Elvin v. Chapman, Cas. 287.

Cor. Lord Campbell, C.J., Norwich (i) Clay v. Wood, 5 Esp. 42; 8
Spr. Assizes, 1853. See also Leame R. KR. 827.

x 2

307

Driving on
the wrong
side in the
dark.

Seeing a per-
son coming on
his wrong
side.

Does not jus-
tify a wanton
injury.

Rule of the
road not in-
flexible.
308

Light load
meeting
heavy.

Parties meet-

ing ona
sudden.

Rule of the
road applies
to saddle
horses.

Modification
of rule.

Tram cars.

NEGLIGENCE IN THE USE OF HORSES, ETC.

stances might frequently arise where a deviation from what
is called the law of the road would not only be justifiable
but absolutely necessary. Of this the jury are the best
judges; and, independently of the law of the road, it is their
province to determine from whose negligence the accident
has arisen (7).

On the same principle, apparently, it has been laid down
in the United States that a traveller on foot or on horse-
back must give way to, and, if necessary, cross the road for
a vehicle with a heavy load (A), and that a lightly-loaded
vehicle must, in like manner, give way to a heavily-loaded
one (J).

Though the rule of the road is not to be adhered to, if
by departing from it an injury can be avoided, and there
is clear space enough to get out of the way, yet in cases
where parties meet on a sudden, and an injury results, the
party on the wrong side is answerable, unless it clearly ap-
pear that the party on the right side had ample means and
opportunity to prevent it (m).

The rule of the road as to keeping the proper side
applies to saddle horses as well as to carriages; and if a
carriage and a horse are to pass, the carriage must keep
its proper side and so must the horse. But if the driver
of a carriage is on his proper side, and sees a horse coming
furiously on its wrong side of the road, it is the duty of
the driver of the carriage to give way and avoid an acci-
dent, although in so doing he goes a little on what would
otherwise be the wrong side of the road (i).

The introduction of tramways has been said to have con-
siderably modified the rule of the road as above stated.
There is no reported case on this point in any of the
English Reports, but in Scotland Lord President Inglis, in
delivering judgment in Jardine v. Stonefield Laundry Oo. (0),
said, “There is one rule of the road which has been
very much altered by the appearance of these new vehicles,
vis., that one carriage overtaking another is bound to
pass it upon the mght-hand side. The new rule requires
that when a carriage is coming up behind a tramway
car, and the car stops, the driver of the other vehicle shall

(j) Waydev. Lady Carr,2 D. & St. 183,

R. 256; Lloyd v. Ogleby, 5 C. B., (m) Chaplin v. Hawes, 3 0. & P.
N. 8. 667. 654.

(k) Beach v. Parmeter, 23 Penn. (x) Turley v. Thomas, 8 ©. & P.
St. 196. 103.

(2) Grier vy. Sampson, 27 Penn. (0) 14 Rettie, 839.
RULE OF THE ROAD.

pass upon the left-hand side. That is the opposite of
the old rule. The new rule has been introduced from con-
siderations of convenience and safety; and the reason is
very obvious, because tramway cars pass upon two lines
of tramways, one in one direction, and another in the
other. If vehicles were to pass a car on the right-hand
side, there would be very great danger of their coming into
collision with another car coming the opposite way. That
is the reason of the rule.”

In America it has been held that the rule of the road
had no application to the meeting of ordinary vehicles with
street cars ; the ground for such decision being, that the
latter cannot turn off their path, and the former should
turn to that side which appears, under the circumstances,
to be the safest, without regard to the usual rule; and the
fact that either was on the left of the road at the time of a
collision is no evidence of negligence (p). And for the
same reason, when a collision occurs between an ordinary
vehicle and a street car, travelling side by side, the pre-
sumption is that the driver of the vehicle was negligent,
the car being unable to turn out (q). This rule appears
to be dictated by common sense, and to be applicable to
similar cases of collision between an ordinary vehicle anda
tramear in England.

The law as to foot passengers is laid down in the follow-
ing case, where an action of trespass was brought for
running over a foot passenger with a carriage which was
on its wrong side of the road, and Mr. Justice Patteson
said to the jury, “A foot passenger has a right to cross a
highway; and it was held in one case (7) that a foot pas-
senger has aright to walk along the carriage way. But
without going that length, it is quite clear that a foot pas-
senger has a right to cross, and that persons driving car-
riages along the road are liable if they do not take care
so as to avoid driving against the foot passengers who are
crossing the road; and if a person driving along the road
cannot pull up because his reins break, that will be no
ground of defence, as he is bound to have proper tackle.”

“With respect to what has been said about the car-
riage being on the wrong side of the road, I think you
should lay it out of your consideration, as the rude as to

(p) Hegan v. Eighth Avenue Rail. 41 Cal. 109. p

Co., 15 N. Y. 380. (r) Boss v. Litton, 5 C. & P.
(q) Suydam v. Grand St. Rail. 407.

Co., 41 Barb. 365; Siegel v. Hisen,

309

Ordinary
vehicles meet-
ing street or
tram cars.

Foot pas-
sengers.

Rule of the
road does not

apply.
310

Going over a
crossing.

Alighting
from a tram-
car.

Nuisance on
public high-
way.

Horse and
carriage before
tradesman’s
door.

NEGLIGENCE IN THE USE OF HORSES, ETC.

the proper side of the road does not apply with respect to

foot passengers; and as regards the foot passengers, the

carriages may go on whichever side of the road they
lease ’’ (s).

It is the duty of a person who is driving over a cross-
ing for foot passengers at the entrance of a street, to drive
slowly, cautiously, and carefully; but it is also the duty of
a foot passenger to use due care and caution in going upon
such crossing, so as not to get among the carriages, and so
receive injury (?).

A person dismounting from a tramcar is just as much
bound to look after his own safety as if he were crossing
from one side of the street to the other. It is just as much
a carriage way as the whole street, and while vebicles are
bound to go at a steady pace, and not to be driven furiously,
foot passengers crossing carriage ways are bound to look
after their own safety, and not to run obvious and un-
necessary risk (7).

If there be a nuisance in a public highway, a private in-
dividual cannot of his own authority abate it, unless it does
him a special injury, and he can only interfere with it so
far as is necessary to exercise his right of passing along
the highway; and he cannot justify doing any damage
to the property of the person who has improperly placed
the nuisance in the highway, if, avoiding it, he might have
passed on with reasonable convenience (2).

A tradesman may remove a horse and cart or carriage
from before his door, if it impedes his business. Thus if
a hackney coach stands before a shopkeeper’s door, and
hinders customers, he may lawfully take hold of the horses
and lead them away, and is not bound to take his remedy
for damages (y).

tion Rail. Co., 8 M. & W. 244;
Davies v. Mann, 10 M. & W. 546;
Mayor of Colchester v. Brooke, 7 Q. B.
339.

(s) Cotteril v. Turley, 8 C. & P.
693. See also Lloyd v. Ogleby, 5
C. B., N. 8. 667.

(¢) See per Pollock, C.B., WWil-

liams vy. Richards, 3 0. & K. 82.
See also Cotton v. Wood, 8 C. B., N.S.
568, cited ante, pp. 303, 304.

(u) Jardine v. Stonefield Laundry
Co., 14 Rettie, 839; Ramsay v.
Thompson, 9 Rettie, 140.

(x) See Judgment of Court of
Queen’s Bench, Dimes v. Petley, 15
Q. B. 288; Bridge v. Grand June-

(y) Slater v. Swann, 2 Str. 872.
But see the remarks of Jessel, M.R.,
in Original Hartlepool Coll. Co. v.
Gibb, 5 Ch. D. at pp. 721, 722, from
which it would appear that the
tradesman could only act in the
manner above indicated upon the as-
sumption that the obstruction was
unreasonable.
NEGLIGENT DRIVING BY A SERVANT.

Negligent Driving by a Servant.

It was formerly held that the master was liable only
where his servant caused injury by doing a lawful act negli-
gently, but not where he wilfully did an illegal one; and,
therefore, in cases of negligent driving, where the servant
had the authority of his master to do the particular act,
namely, to drive along the highway, which is perfectly
lawful in itself, it was held by Mr. Justice Patteson that
the master was chargeable, because the act so authorized
by him had been done negligently; but that if the servant
drove wilfully against another, the master was not charge-
able for the injury done (z).

But this definition is not an exhaustive one, for the
liability of the master extends beyond the lawful acts of
his servant. And the test of his liability is, not whether
the acts of his servant are illegal and wilful, or the con-
trary, but whether they are within the scope of the servant’s
employment and in the execution of the service for which
he is engaged (a).

In the case of Limpus v. The General Omnibus Com-
pany (a), decided in the Exchequer Chamber, which fixed
and defined the law on this subject, the driver of the
defendant’s omnibus drove it across the road in front of
a rival omnibus belonging to the plaintiff, which was
thereby overturned. The driver said, that he pulled across
the plaintiff’s omnibus to prevent it passing him. The
defendants had given printed instructions to their driver
not to obstruct any omnibus.

Mr. Baron Martin, before whom the case was tried,
directed the jury that, “‘ When the relation of master and
servant existed, the master was responsible for the reckless
and improper conduct of his servant in the course of the
service; that if the jury believed that the defendant’s
driver, being dissatisfied and irritated with the plaintiff's
driver, acted recklessly, wantonly, and improperly, but in
the course of the service and employment, and doing that
which he believed to be for the interest of the defendants,
then they were responsible; that if the act of the defen-
dants’ driver, although a reckless driving on his part, was
nevertheless an act done by him in the course of his service

(2) Lyons v. Martin, 8 A.& E. 5B. R. 518.
515; S. C.,3 Nev. & P. 509; and see (a) Limpus v. The General Omni-
M‘Manus vy. Cricket, 1 East, 106; bus Co.,1 H. & C. 526.

311

When the
master was
liable accord-
ing to former
decisions,

Liability now
held to be
more exten-
sive.

Limpus v. The
General Om-
nibus Com-

pany.

Acts done

within em-
loyment and
‘or master’s

interest.
312

If servant
vindictively
strikes a
horse with
his whip.

Instructions
of master, if
disregarded,
immaterial.

NEGLIGENCE IN THE USE OF HORSES, ETC.

and to do that which he thought best to suit the interest of
his employers, and so to interfere with the trade and busi-
ness of the other omnibus, the defendants were responsible ;
that the instructions given to the defendants’ driver by
them were immaterial if he did not pursue them ; but that,
if the act of the defendants’ servant was an act of his own,
and in order to effect a purpose of his own, the defendants
were not responsible.” This direction was held to be
right by all the Judges with the exception of Mr, Justice
Wightman. ji

Mr. Justice Williams in the course of the argument said,
“Tf a driver in a moment of passion vindictively strikes a
horse with a whip, that would not be an act done in the
course of his employment; but in this case the servant was
pursuing the purpose for which he was employed, vis., to
drive the defendants’ omnibus. Suppose a master told
his servant not to drive when he was drunk, but he never-
theless did so, would not the master be responsible?” And
in his judgment he said: “If a master employs a servant
to drive and manage a carriage, the master is responsible
for any misconduct of the servant in driving and managing
it, which must be considered as having resulted from the
performance of the duty entrusted to him, and especially if
he was acting for his master’s benefit and not for any
purpose of his own.”

Mr. Justice Willes said, with reference to the question
whether the injury was done by the driver in the course of
his employment, “It may be said that it was no part of
the duty of the defendants’ servant to obstruct the plaintift’s
omnibus, and moreover the servant had distinct instructions
not to obstruct any omnibus whatever. In my opinion,
those instructions are immaterial. If disobeyed, the law
casts upon the master a liability for the act of his servant
in the course of his employment; and the law is not so
futile as to allow a master, by giving secret instructions to
his servant, to discharge himself from liability. Therefore,
I consider it immaterial that the defendants directed their
servant not to do the act. Suppose a master told his
servant not to break the law, would that exempt the
master from responsibility for an unlawful act done by his
servant in the course of his employment? The act of
driving as he did is not inconsistent with his employment,
when explained by his desire to get before the other omni-
bus,” which desire was prompted by the fact “that he was
employed not only to drive the omnibus, which alone would
NEGLIGENT DRIVING BY A SERVANT.

not support this summing-up, but also to get as much
money as he could for his master, and to do it in rivalry
with other omnibuses on the road.”

Mr. Justice Byles, after expressing his agreement with
the direction of Mr. Baron Martin, said, “The direction
amounts to this, that if a person acts in the prosecution of
his master’s business for the benefit of his master, and not
for the benefit of himself, the master is liable, although the
act may in one sense be wilful on the part of the servant.
It is said that what was done was contrary to the master’s
instructions; but that might be said in ninety-nine out of
a hundred cases in which actions are brought for reckless
driving. It is also said that the act was illegal. So, in
almost every action for negligent driving, an illegal act is
imputed to the servant. If we were to hold this direction
wrong, in almost every case a driver would come forward
and exaggerate his own misconduct, so that the master
would be absolved. Looking at what is a reasonable direc-
tion, as well as at what has been already decided, I think
this summing-up perfectly correct.”

And Mr. Justice Blackburn said, with reference to the
act being done by the defendant when “in the course of his
service and employment,’ it is ‘not universally true that
every act done for the interest of the master is done in
the course of the employment. A footman might think it
for the interest of his master to drive the coach, but no one
could say that it was within the scope of the footman’s
employment, and that the master would be liable for
damage resulting from the wilful act of the footman in
taking charge of the horses. But, in this case, I think
the direction given to the jury was a sufficient guide to
enable them to say whether the particular act was done in
the course of the employment. The learned Judge goes
on to say, that the instructions given to the defendants’
servants were immaterial if he did not pursue them (upon
which all are agreed) ; and at the end of his direction he
points out that, if the jury were of opinion ‘that the true
character of the act of the defendants’ servant was, that
it was an act of his own and in order to effect a purpose of
his own, the defendants were not responsible.’ That meets
the case which I have already alluded to. If the jury should
come to the conclusion that he did the act, not to further
his master’s interest nor in the course of his employment,
but from private spite, and with the object of injuring his
enemy, the defendants were not responsible. That removes

313

Master liable,
if acts are
done for his
benetit.

Unless done
out of the
course of the
servant’s em-
ployment.
314 NEGLIGENCE IN THE USE OF HORSES, ETC.

all objection, and meets the suggestion that the jury may
have been misled by the previous part of the summing-up.””

Generally speaking, the relationship of master and servant
will not be inferred. Thus where the plaintiff’s horse was
injured by another horse which became restive owing to the
noise of the band of the Salvation Army in the public street,
and he thereupon brought an action against the head of the
Salvation Army for damages; it was held, that in the
absence of evidence to show what the relationship was
between the particular members of the Army and the defen-
dant, it could not be inferred that such members were his
servants, or were acting under his authority (0).

Under the London Hackney Carriages Act, 1843 (6 & 7
Vict. c. 86), so far as the public is concerned, the registered
proprietor of a hackney carriage is responsible for the acts
of his driver whilst he is plying for hire as if the relationship
of master and servant existed between them, even though
it does not, in fact, exist (c).

The registered proprietor of a cab in London is therefore
liable for the loss of a passenger’s luggage through the
negligence of the driver (¢), or for personal injury to the
passenger or a stranger (¢), or damage to the horse or
carriage of another (/), caused by the negligence of the
driver, where there is no wrongful user of the cab by the
driver. The fact that the driver through whose negligence
the injury was caused is really the servant of a person to
whom the cab has been let by the proprietor is immaterial,
for the latter cannot, by letting his cab, escape from his
liability under the statute. But the nght of action against
the proprietor which the statute gives to the injured party
in such a case does not interfere with any right of action
which the latter may have at common law against the
driver’s master in the ordinary sense of that word (yg).

Relationship
ot master and
servant not
inferred.

Liability of
cab proprie-
tor.

(b) London General Omnibus Co.
vy. Booth, 63 L. J., Q. B. 244.

(c) King v. London Improved Cab
Co., 23 Q. B. D. 281; 58 L. J.,
Q. B. 456; 61 L. T., N. 8. 34; 37
W. R. 737; 53 J. P. 788—C. A.,
approving [enables vy. Smith, 2
qQ. B. D. 279; 46 L. J., Q. B. 470;
36 L. T., N. 8. 509 ; 25 W. R. 584;
and overruling Ming v. Spurr, 8
Q. B. D. 104, where it was held that
there is only a prima facie presump-
tion of such relationship which may be
rebutted by the circumstances of the
case. See also Aven v. Henry, [1894]

1 Q. B. 292; 63 L.J., Q. B. 211;
69 L. T.,N. 8.671; 42 W. R. 214;
58 J. P. 262—C. A., where the effect
of the ruling in Hing v. London
Improved Cab Co. upon the decision
in King v. Spurr was pointed out by
the Court.

(@) Powles vy. Hider, 25 L. J.,
Q. B. 331.

(¢) Venables vy. Smith, ubi supra;
King v. London Improved Cab Co.
ubi supra.

(f) Keen v. Henry, ubi supra.

(9) een v. Henry, [1895] 2Q. B.
292, 294—per Lord Esher, M.R.
NEGLIGENT DRIVING BY A SERVANT.

If an injury is caused by the negligence of the driver
whilst wrongfully using the cab, or doing anything contrary
to the terms of the bailment as between himself and the
proprietor, the latter will not be liable, as his liability only
exists with respect to acts done by the driver within the
scope of his employment. Where a driver, who had no
specified time for starting or returning to the proprietor’s
stables, made a short deviation, for his own convenience, at
the close of his day’s work, and while returning to the
stables, and after such deviation, he was again returning
when he ran over and injured the plaintiff; it was held, that
the driver was not on an independent journey, and must be
considered to be in the proprietor’s employ at the time of
the accident (4). In that case it was contended on behalf
of the proprietor that the driver was not acting within the
scope of his employment, and Cockburn, C.J., said (7), “To
determine whether the driver was so acting or not, it is
necessary to consider what the terms were upon which the
cab was entrusted to the driver. If the employment of the
cab by the driver at the time when the mischief was done
was wrongful, in the sense that it was beyond the scope of
the bailment, then the master would not be responsible ;
because it is with regard to the employment of the cab
within the scope of such bailment that the relation of
master and servant is created by the statutes for the protec-
tion of the public. But it appears that the cab was
entrusted to the driver to use entirely at his discretion,
provided that he used it properly and returned it to the
proprietor’s stables when the day’s work was over, paying
the sum agreed upon between them for the hire of it. I
cannot see that the driver did anything wrongful, or
contrary to the terms of the bailment as between himself
and the proprietor.”

Where in an action for personal injury against a cab
proprietor it appeared that the plaintiff was knocked down
and injured by a cab belonging to the defendant, the licensed
driver being inside drunk, and the vehicle being driven by
an unlicensed man also drunk, but not the servant of the
defendant, a nonsuit was ordered tu be entered (4).

In Smith v. Bailey (1) it was sought to extend the con-
struction placed on the Hackney Carriages Act in the cases

(hk) Venables v. Smith, ubi supra. (2) [1891] 2 Q. B. 403; 60 L. J.,
(i) 2Q. B. D. 283. Q. B.779; 65 L. T., N. 8. 331;
(k) Mann v. Ward, 8 TimesL.R. 40 W. R. 28—C. A.

699.

3815

Liability of
owner of
traction en-
gine.
316

Master and
servant
driving
together.

Servant en-
trusting the
reins to a
stranger.

Extent of
servant’s au-
thority.
Sudden emer-
gency.

NEGLIGENCE IN THE USE OF HORSES, ETC.

just cited to sections 8 and 7 of the Locomotives Act, 1865
(28 & 29 Vict. c. 83), the former of which requires the name
and address of the owner to be affixed to a traction engine,
the contention being that the legislation was analogous. But
the Court declined to do so, Lord Esher, M.R., (mz) saying,
“I do not think that the construction which has been placed
on the Hackney Carriages Acts is any authority for the con-
struction of this Act. Each Act must be construed according
to its own language. I see nothing in this Act to show that
the Legislature intended that, if a traction engine is let out
and negligently used by the person to whom it is let, the owner
of it shall be responsible to a person thereby injured.” And
it was accordingly held that the owner of a traction engine,
to which his name and address were duly affixed, was not
liable in respect of injuries occasioned to the plaintiff through
the negligent management of the engine whilst it was being
used upon a highway by a person to whom it had been let.

Where a master and servant are together in a vehicle,
and an accident occurs from which an immediate injury
ensues, the master is liable, although the servant is driving,
and there is no evidence of any interference on the
master’s part; and even where the evidence on the part of
the defendant strictly negatives an interference, the mere
presence of the master with the servant will constitute him
a trespasser if the act of the servant amount to a trespass (n)-

So where a carriage and horses are hired, and the post-
boys are servants of the owner, and an accident ensues in
consequence of their negligence, the hirer, if he sit outside
and have a view of their proceedings, and do not endeavour
to stop their misconduct, 1s a co-trespasser with them (0).

A master is liable in an action for damage resulting
from the negligence with which his cart has been driven,
although it should appear that his servant was not driving
at the time of the accident, but had entrusted the reins to
a stranger who was riding with him, and who was not in the
master’s service (/).

It is doubtful whether the servant of the proprietor of a
public vehicle has an implied authority, in cases of sudden
emergency, to appoint another person to act as servant on
his master’s behalf (7), but it is clear that a servant

(m) [1891] 2 Q. B. at p. 406. (p) Booth v. Mister, 7 C. & P. 66.
(xn) Chandler v. Broughton, 1 Cr. (q) In Gwilliam vy. Twist, [1895]
& M. 29. 2 Q. B, 84, Lord Esher said that
(0) M'Laughlin v. Pryor, 4 Scott, he was very much inclined to agree
N. R. 655; 8. 0.4 M. & G. 48. with the view that the doctrine of
NEGLIGENT DRIVING BY A SERVANT.

employed to drive such a vehicle has no authority to dele-
gate the performance of his duty to another person, unless
there is a necessity for so doing. This was so held by the
Court of Appeal in the recent case of Gwilliam v. Twist (r).
There, the defendant’s omnibus was being driven by his
servant through a public street when a policeman, thinking
that the driver was drunk, ordered him to discontinue driv-
ing, the omnibus being then only a quarter of a mile from
the defendant’s yard. The driver and the conductor of the
omnibus thereupon authorised a person who happened to
be standing by to drive the omnibus home. That person
through his negligence while so driving injured the plaintiff.
It was held, reversing the judgment of a Divisional Court,
that as the defendants might have been communicated with,
there was no necessity for their servants to employ the
other person, and the employment of such person in the
absence of necessity, being clearly beyond the scope of their
duty, the defendants were not liable for the negligence of
the person so employed.

If a servant driving his master’s carriage, in order to
effect some purpose of his own, wantonly strike the horse of
another person, and produce an accident, the master wild
not be liable. But if in order to perform his master’s orders
he strikes, but injudiciously, and in order to extricate him-
self from a difficulty, that will be negligent and careless
conduct, for which the master wi be liable, being an act
done in pursuance of the servant’s employment. And
where a coachman, in consequence of his master’s carriage
having become entangled with another, struck the other
horses, which were standing still without a driver, upon
which they ran away and upset the carriage, the jury
thought that the entangling arose originally from the fault
of the coachman, and that as he was acting within the scope
of his employment in endeavouring to extricate himself, the
master was liable (s).

The fact that a passenger in an omnibus is struck by the
driver’s whip is prima facie evidence of negligence by the
driver in the course of his employment; and even if it
appears that the blow was struck at the servant of another
omnibus, with whom there had been a dispute, and who

authority by reason of necessity is (r) [1895] 2 Q. B. 84; 64 L. J.,
confined to certain well-known excep- Q. B. 474; 72 L. T., N. 8. 579;
tional cases, such as those of the 43 W. R. 566.

master of a ship or the acceptor of a (s) Per curiam in Croft v. Alison,
bill of exchange for the honour of 4 B. & Ald. 592.

the drawer.

317

Servant strik-
ing the horse
of another.

Servant strik-
ing passenger.
318

Guard of
omnibus
using undue
violence to a
passenger.

Servant re-
moving an
obstruction.

Servant act-
ing impro-
perly.
Making a de-
tour for his

own purposes.

NEGLIGENCE IN THE USE OF HORSES, ETC.

had jumped on the omnibus step to get his number, it is a
question for the jury whether the blow was struck by the
driver in private spite, or in supposed furtherance of his
employer’s interests (¢).

It was held by the Exchequer Chamber in the case of
Seymour v. Greenwood (wu) that the master was liable, where
the guard of an omnibus belonging to him, in removing
therefrom a passenger, whom he deemed to be drunk,
dragged him out with undue violence, and threw him upon
the ground, whereby he was seriously injured; for the
master, by giving the guard authority to remove offensive
passengers, necessarily gives him authority to determine
whether any passenger had misconducted himself. And
inasmuch as the master puts the guard in his place because
it is not convenient for him personally to conduct the
omnibus, if the guard forms a wrong judgment, the master
is responsible (a).

But where a van was standing at the door of the plaintiff,
from which the plaintiff's goods were being unladen, and
the plaintiff's gig was standing behind the van: and the
defendant's coachman drove her carriage up, and there not
being room for the carriage to pass, the coachman got off his
box and laid hold of the van horse’s head; and this caused
the van to move, and thereby a packing-case fell out of the
van and broke the shafts of the gig; it was held, with the
assent of the Barons sitting in the Exchequer Chamber,
that the defendant was not liable, as the coachman was not
acting in the employ of his mistress, that is, within the
scope of his employment, at the time this matter occurred (y).

If a servant does what his master employs him to do in
a negligent, improper, or round-about way, and damage is
done, his master is liable (zs).

If a servant driving his master’s cart, on his master’s
business, make a detowr from the direct road for some pur-
pose of his own, his master will be answerable in damages
for any injury occasioned by his careless driving while so
out of his road (a). Because wherever the master has
intrusted the servant with the control of the carriage, it is

(t) Ward v. General Omnibus Co., Greenwood, 7 H. & N. 355.
42 L. J., C. P. 265; 28 L.T.,N.8. (y) Lamb v. Lady Elizabeth Palk,
850—Ex. Ch., affirming the decision 9C. & P. 629.
of C.P., 27 L. T., N. 8. 761; 21 (2) See per Cresswell, J., Mitchell
W. R. 358. y. Crassweller, 22 L. J., C. P. 104.
(u) Seymour v. Greenwood, 7 H. & (a) Joel v. Morrison, 6 C. & P.
N. 355. 501.
(c) Per Williams, J., Seymour v.
NEGLIGENT DRIVING BY A SERVANT,

no answer that the servant acted improperly in the manage-
ment of it; but the master in such case will be liable, because
he has put it in the servant’s power to mismanage the
carriage by entrusting him with it. And this was so held
by Mr. Justice Erskine, where a servant, having set his
master down in Stamford Street, was directed by him to
put up in Castle Street, Leicester Square; but in so doing,
he went to deliver a parcel of his own in Old Street Road,
and in returning along it he drove against an old woman
and injured her (8).

So, in Whatman v. Pearson (c), the defendant, a contractor
under a district board, was engaged in constructing a
sewer, and employed men with horses and carts. The men
so employed were allowed an hour for dinner, but were not
permitted to go home to dine, or leave their horses and
carts. One of the men went home, about a quarter of a
mile out of the direct line of his work to his dinner, and
left his horse unattended in the street before his door.
The horse ran away and damaged certain railings belonging
to the plaintiff; and it was held that it was properly left to
the jury to say whether the driver was acting within the
scope of his employment, and that they were justified in
finding that he was.

But where a servant is acting, and knows that he is
acting, contrary to his trust, and to his master’s employ-
ment, the master is not liable for any damage which may
be done by him (d).

Thus if a servant without his master’s eave or knowledge
take his cart or carriage when it is not wanted, and drive
it about for his own purposes, the master is not answerable
for any injury he may do, because he has not in such case
entrusted him with the cart or carriage (e). So where it was
the duty of the defendant’s carman, after having delivered
his master’s goods for the day, to return to the house,
get the key of the stable, and put up his horse and cart in
a mews in an adjoining street; on his return one evening
he got the key, and instead of going to the mews, and
without the defendant’s leave, he drove a fellow-servant in
an opposite direction, and on his way back injured the

(0) Sleath v. Wilson, 9 C. & P. (d) See per Cresswell, J., Mitchell
608. y. Crassweller, 22 L. J., C. P. 104.
(c) L. R., 8 C. P. 422; and see (e) Joel v. Morrison, 6 C. & P.

Burns v. Poulson, L. R.,8C.P. 563; 501; Sleath v. Wilson, 9 C. & P.
42 L. J., C. P. 302. 608.

319

Servant act-
ing contrary
to his trust.

Taking his
master’s horse
without leave.
320

Re-entering
on duty.

NEGLIGENCE IN THE USE OF HORSES, ETC.

plaintiff by his negligent driving; it was held that the
defendant was not liable (/).

And this is further illustrated by Storey v. Ashton. In
that case the defendant, a wine merchant, sent his carman
and clerk with a horse and cart to deliver some wine, and
bring back some empty bottles; on their return, when
about a quarter of a mile from the defendant’s offices, the
carman, instead of performing his duty and driving to the
defendant’s offices, depositing the bottles, and taking the
horse and cart to stables in the neighbourhood, was
induced by the clerk (it being after business hours) to
drive in quite another direction on business of the clerk’s ;
and while they were thus driving the plaintiff was run
over, owing to the negligence of the carman; it was held
that the defendant was not liable, for that the carman was
not doimg the act, in doing which he had been guilty of
negligence, in the course of his employment as a servant (9).
But Cockburn, C.J., in delivering judgment in this case,
said, “I think that the judgments of Maule and Cress-
well, JJ., in Mitchell v. Crassweller (h), express the true
view of the law, and the view which we ought to abide by:
and that we cannot adopt the view of Erskine, J., in Sleath
v. Wilson (¢), that is, because the master has entrusted the
servant with the control of the horse and cart that the
master is responsible. The true rule is, that the master is
only responsible so long as the servant can be said to be
doing the act, in the doing of which he is guilty of negli-
gence, in the course of his employment as a servant. I am
very far from saying, if the servant, when going on his
master’s business, took a somewhat longer road, that, owing
to his deviation, he would cease to be in the employment
of the master, so as to divest the latter of all liability; in
such cases it is a question of degree as to how far the devia-
tion could be considered a separate journey.”

The case of Rayner v. Mitchell (k) is another instance of
a servant acting beyond the scope of his authority. There
a carman, without his master’s permission, and for a
purpose of his own wholly unconnected with his master’s
business, took out his master’s horse and cart, and on his
way home negligently ran against a cab and damaged it.

(f) Mitchell v. Crassweller, 22 L. (2) See note (f), ante.
J., C. P. 100. (t) See note (e), ante.
(g) Storey vy. Ashton, L. R.,4 Q.B, (4.2 C. P. D. 359; 25 W. R.

476; 88L.J., Q. B. 223; 17 W. R.
727,
NEGLIGENT DRIVING BY A SERVANT.

The course of the employment of the carman was, that,
with the horse and cart, he took out beer to his master’s
customers, who was a brewer, and in returning to the
brewery, he called for empty casks wherever they would be
likely to be collected, for which he received from his master
a gratuity of ld. each. At the time of the accident the
carman had with him two casks, which he had picked up
on his return journey at a public-house which his master
supplied, and for which he afterwards received the customary
ld.: and it was held, that the carman had not re-entered
upon his ordinary duties at the time of the accident, and,
therefore, the master was not liable.

Where a master sent his servant on an errand, and he
took and rode a horse belonging to another person without
his master’s permission, and on his way back inflicted an
injury on the plaintiff, Mr. Justice Park said, “I cannot
bring myself to go the length of supposing that if a man
sends his servant on an errand without providing him with
a horse, and he meets a friend who has one, who permits
him to ride, and an injury happens in consequence, the
master is responsible for that act. If it were so, every
master might be ruined by acts done by his servant, without
his knowledge or authority (J).

But where (m) the general manager of the defendant, a
horsedealer, had a horse and gig of his own, which he used
for the defendant’s business as well as his own, and was
allowed to keep them on the defendant’s premises at the
defendant’s expense ; and, on one occasion, the manager, on
putting the horse into the gig, told the defendant that he
was going to 8. to collect a debt for him and afterwards to
see his own doctor; and before he got to S. he drove
against and killed the plaintiff’s horse; it was held that
there was abundant evidence to make the defendant re-
sponsible, although he had not expressly requested the
manager to use the horse and gig on that occasion; and
that it is not necessary in cases of this sort that there should
be any express request, as the jury may imply a request or
assent from the general nature of the servant’s duty and
employment (n). And it was also held in the same
case (m) that the proper question to leave to the jury is,
whether at the time of the act complained of, the servant
was driving on his master’s business and with his authority.

(2) Goodman v. Kennel, 3C.&P. 285.
7

3 (n) See also Turberville v. Stampe,
(m) Patten y. Rea, 261L.J.,0.P. 1 Lord Raym. 264, per Holt, C.J.

oO. Y

16

321

Taking the
horse of
another.

No express
authority of
master neces-
sary.
322

Master’s
name on the
cart.

Giving an
address. ©

Liability of
master and
servant re-
spectively.

Negligence
of tellow-
servant.

NEGLIGENCE IN THE USE OF HORSES, ETC.

According to the language used in the report of the case
of Stables v. Eley (0), it has been held that if, in an action
for negligent driving, it appears that the defendant has held
himself out to the world as the owner of a cart by suffering
his name to remain painted on it, and over the door of the
house of business to which it belongs, an action is maintain-
able against him in respect of the negligence of the driver,
although it is proved that he had for some days ceased to be
the owner of the cart, or to be concerned in the business.
But this case was recently commented on and disapproved
of in the Court of Appeal (p), Lord Esher, M.R., remarking
that it must either be misreported or wrong, and that the
utmost effect that can be given to the decision is that under
such circumstances there would be primd facie evidence of
liability, which might be met, however, by showing the
truth of the matter(q), and in this opinion Bowen and
Kay, L.JJ., concurred.

Where a carriage strikes against another, and a person
who sees the transaction demands the address of the owner,
the address given by a person in the carriage is admissible
in evidence ; but a statement that any damages done will
be paid for is not so (7).

If a servant, in the course of his master’s employ, drives
over any person and does a wilful injury (described by
Martin, B., as an act of his own, and in order to effect a
purpose of his own (s), the servant, and not the master, is
liable; if the servant, by his negligent driving, in the course
of his employment, causes an injury, the master is liable ;
if the master himself is driving, or though not actually
driving is sanctioning the conduct of his servant, he is liable
whether the damage be the effect of negligence or of a
wilful act done or sanctioned by him (¢).

It is a well-established rule of law that a servant cannot
ordinarily sue his master for an injury sustained through
the negligence of a fellow-servant(w). And a stranger

(«) Tarrant vy. Webb, 25 L. J.,

(0) Stables v. Eley, 1C.& P. 614.

(p) Smith vy. Bailey, [1891] 2
Q. B. 403; 60 L. J., Q. B. 779.

(q) [1891] 2 Q. B. at p. 406.

(rv) Beamon vy. Ellice, 4 C. & P.
586.

(s) Limpus v. General Omnibus
Co., ante, p. 311.

(t) See per Parke, B., Gordon v.
Rolt, 4 Ex. 366; 18 L. J., Ex.
433.

C. P. 261; Waller v. South Eastern
Rail. Co., 32 L. J., Ex. 205; Hall
vy. Johnson, 13 W. R. 411; Wiggett
v. Fox, 25 L. J., Ex. 188. The law
relating to the liability of employers
to make compensation for injuries
suffered by workmen in their service
is extended and regulated by the
pees Liability Act, 1880 (43 &
44 Vict. v. 42) ; but that act does
NEGLIGENT DRIVING BY A SERVANT.

invited by a servant, or one who volunteers to assist a
servant in his work, while engaged in giving such assist-
ance, bears the same relation to the master as a servant,
and is subject to the same disabilities in this respect ().

But in all cases the master is bound to use due care in
the selection of competent servants, and is liable for negli-
gence in employing incompetent persons to his servants and
to those acting as such. Nevertheless he is not bound to
warrant the competency of his servants; and in an action
against him for an injury done by one of his servants to
another, the question for the jury is, not whether the servant
was incompetent, but whether the master exercised due care
in employing him (y).

The usual terms on which a cab proprietor lets a cab to
a driver are, that the owner feeds the horse, and exercises
no control over the driver after he leaves the yard, for
which the driver pays a fixed sum a day. Under such cir-
cumstances the relation between the parties inter se is that
of bailor and bailee; and the proprietor is liable to the
driver if he do not take reasonable precautions to provide a
horse reasonably fit for the purpose, and injury is thereby
caused to the driver.

This was the conclusion arrived at by Byles and
Grove, JJ., Willes, J., dissenting, upon motion to enter
judgment for the defendant after verdict for the plaintiff in
an action by the driver against the proprietor of a cab for
injury sustained by reason of the former having been
suppled with a vicious and unmanageable horse (sz). This
judgment was appealed from, but the Judges in the
Exchequer Chamber being divided in opinion delivered no
judgment on the point of law, though they ordered a new
trial in order that the question whether the plaintiff had
taken on himself the risk with respect to the horse’s fitness
might be submitted to a jury (a). On the new trial coming
on for hearing the jury found that there had been personal
negligence on the part of the defendant in the selection of
the horse; and on this a third trial was refused (d). So

not extend to domestic or menial (2) Fowler v. Lock, L. R., 7C. P.

servants. 272; 41L. J., C0. P. 99; 26L. T.,
(a) Potter v. Faulkner, 31 L.J., N.S. 476.
Q. B. 30. (a) L. B., 9 C. P. 751,03 43

(y) Tarrant v. Webb, 25 L. J.. L.JS., 0. P. 394, u.; 30 L. ‘Ty No 8.

L.
C.
L.R., 100. 2.90; 43L.J.,
39

C. 2. 261; Waller v. South Eastern 800.

Rail. Co., 32 L.J., Bx. 205; Hall (8)

vy. Johnson, 13 W. R. 411; Wiggett C. P. 394,n.; 31 L. T.,N. 8. 844;
vy. For, 25 L. J., Ex. 188. 93 W. R. 415.

y 2

823

Master bound
to use due
care in selec-
tion of ser-
vants.

Liability of
cab proprietor
to driver.
324

Action by
representatives
of a person
killed.

By persons
beneficially
interested.

Construction
to be put
upon the con-
dition in 9 &
10 Vict. ¢. 93.

NEGLIGENCE IN THE USE OF HORSES, ETC.

that the judgment of Byles and Grove, JJ., still holds good,
and the law is as above stated (c).

Formerly, if a person were killed, no action could be
maintained by his representatives. Now, however, deo-
dands are abolished (d), and under Lord Campbell’s Act (e)
a party causing death is liable to an action in all cases
where the party injured might himself have maintained
one, if death had not ensued. And such action is to be
brought, within twelve calendar months of the death of
the injured party, by his executor or administrator, and to
be “for the benefit of the wife, husband, parent and
child of the person whose death shall have been so caused,”
and among whom the damages are to be divided as the
jury shall direct(f). A child en centre sa mére is entitled
to sue under this Act on the death of its father by negh-
gence (9).

This Act is amended by and is to be read with the 27 &
28 Vict. ¢. 95, called “An Act for compensating the
families of persons killed by accident,” by the first section
of which, where no action has been brought within six
months of the death by the executor or administrator of
the person killed, then the action may be brought by the
persons beneficially interested in the result of the action.
The action may be sustained by a relative of the deceased,
though brought within six calendar months from the death,
unless there be at the time an executor or administrator of
the deceased (/). By the second section, the money paid
into court may be paid in one sum, without regard to its
division into shares (?).

The condition contained in Lord Campbell’s Act (¢), that
the action is maintainable in all cases when the party in-
jured might himself have maintained one, if death had not
ensued, has reference not to the nature of the loss or injury
sustained, but to the circumstances under which the bodily
injury arose, and the nature of the wrongful act, neglect
or default complained of (4). Thus, if the deceased has by
his own negligence materially contributed to the accident
by which he lost his life, as he, if still living, could not

(c) See also Gibbon v. Standon,16 717.

L. :. N. 8. 497—per Byles, J., at (h) Holleran vy. Bagnell, L, R., 4
N.P. Ir. 740—C. bP. D.
(d) 9 & 10 Vict. v. 62. (i) 27 & 28 Viet. ¢. 95.
(e) Tbid., c. 93. (k) See Haigh v. Royal Mail Steam
(f) Tbid., ss. 1, 2, 3. Packet Co., 52 L. J., Q. B. 640; 49
(

g) The George and Richard, L.7.,N. 8. 802; 48 J. P. 230—
L. B., 3 Adm. 466; 24L.T.,N.S.  C.A.
NEGLIGENT DRIVING BY A SERVANT.

have maintained an action in respect of any bodily injury
thus sustained, notwithstanding there might have been neg-
ligence on the part of the defendants, an action cannot be
maintained under Lord Campbell's Act. But supposing
the circumstances of the negligence to be such that, if
death had not ensued, the deceased might have brought
his action in respect of any injury arising to him from it,
his representative, or a person beneficially interested in the
result of the action, might maintain an action in respect
of an injury arising from a pecuniary loss occasioned by
the death, although that pecuniary loss would not have
resulted from the accident to the deceased, if he had
lived (/). But in order to maintain the action the persons
on whose behalf it is brought must prove that during the
lifetime of the deceased a pecuniary advantage accrued to
them owing to their relationship with him. They are not
entitled to compensation under the statute, if the only
pecuniary benefit to them from his life was derived from a
contract which they had entered into with him (7).

In an action for negligent driving, a plan, which is to
be put into the hands of the witnesses, should merely show
the street, the pavement, the turnings, corners, &., and
not the supposed position of the carriages; for if it does,
the Judge will not allow it to be used (x).

An award of compensation by a magistrate against the
driver of a hackney or metropolitan stage-carriage upon
an information for furious driving under 6 & 7 Vict. c. 86,
s. 28 (the London Hackney Carriages Act, 1843), is a bar
to a subsequent action against such driver’s employers by
the party injured in respect of his injuries. And if the
party accepts such compensation he is barred from further
proceedings, even where he did not lay the information, or,
in the first instance, request the magistrate to award
compensation (0).

Damage to goods and injury to the person, although they
have been occasioned by one and the same wrongful act,

180.
(m) Sykes v. North Eastern Rail.
00.,44 L. J., C. P. 191; 321. T.,
N. 8. 199; 23 W. R. 473.

(x) Beamon v. Ellice, 4 C. & P.
586.

(2) Per Cockburn, C.J., Pym
Great Northern Rail. Co., 2 B.
8. 767; and per Erle, C.J., S. C.,
B. & 8. 406. See also Franklin v.
South Eastern Rail. Co.,3 H. & N.

Vv.
&
4

2113; Dalton v. South Eastern Rail.
Co., 27. J., C. P. 227; and Row-
ley v. London and North Western
Rail. Co., L. R., 8 Ex. 221, Ex. Ch.;
42 L. J., Ex. 153; 29 L. T., N.S.

(0) Wright v. London General
Omnibus Co.,2 Q. B. D. 271; 46
L. J., Q. B. 429; 36 L. T., N.S.

590; 25 W. R. 647.

Plan of the
locality.

Conviction for
furious
driving a bar
to subsequent
action.

Separate
actions in
respect of
same wrongful
act.
826

Damages.

Damage too
remote.

NEGLIGENCE IN THE USE OF HORSES, ETC.

are infringements of different rights, and give rise to dis-
tinct causes of action; and therefore the recovery in an
action of compensation for damage to the goods is no bar to
an action subsequently commenced for the injury to the
person. Thus where the plaintiff brought an action in a
county court for damage to his cab occasioned by the neg-
ligence of the defendant’s servant, and, having recovered
the amount claimed, afterwards brought an action in the
High Court against the defendant, claiming damages for
personal injury due to the same negligence; it was held,
by Brett, M.R., and Bowen, L.J., Lord Coleridge, C.J.,
dissenting, that the latter action was maintainable, and was
not barred by the previous proceedings in the county
court (7).

Generally speaking, where an injury arises from the
misconduct of another, the party who is injured has a
right to recover from the injuring party for all the con-
sequences of that injury. And it is quite clear that every
person who does a wrong is at least responsible for all the
mischievous consequences that may reasonably be expected
to result, under ordinary circumstances, from such mis-
conduct (q).

A servant, in breach of the Metropolitan Police Act
(2 & 8 Vict. c. 47), s. 54, washed a van in a public street,
and allowed the waste water to run down the gutter
towards a grating leading to the sewer, about twenty-five
yards off. In consequence of the extreme severity of the
weather, the grating was obstructed by ice, and the water
flowed over a portion of the causeway, which was ill-paved
and uneven, and there froze. There was no evidence that
the master knew of the grating being obstructed. A horse,
while being led past the spot, slipped upon the ice and
broke its leg. It was held that this was a consequence
too remote to be attributed to the wrongful act of the
servant (7). And Bovill, C.J., said, “No doubt, one who
commits a wrongful act is responsible for the ordinary
consequences which are likely to result therefrom ; but,
generally speaking, he is not liable for damage which is
not the natural or ordinary consequence of such act,
unless it be shown that he knows, or has reasonable means

(») Brunsden v. Humphrey, 14 q) Rigby v. Hewitt, 5 Ex. 243.
Q. B. D. 141; 53 L. J., Q. B. 476; r) Sharp v. Powell, L. R.,7C. P.
51L. T., N.S. 629; 32 W. R. 944 = 2535 41 L.J., O. P. 95; 26 L. T.,
—C.A. N.S. 436.
NEGLIGENT DRIVING BY A SERVANT.

of knowing, that consequences not usually resulting from
the act are, by reason of some existing cause, likely to
intervene so as to occasion damage to a third person.
Where there is no reason to expect it, and no knowledge
in the person doing the wrongful act that such a state of
things exists as to render the damage probable if injury
does result to a third person, it is generally considered that
the wrongful act is not the proximate cause of the injury,
so as to render the wrongdoer liable to an action ”’ (s).

A.’s carriage was driven against the wheel of B.’s chaise,
and the collision threw a person who was in the chaise upon
the dashing-board. The dashing-board fell on the back of
the horse, and caused him to kick, and thereby the chaise
was injured. It was held that B. was entitled to recover
in trespass against A. damages commensurate with the
whole of the injury sustained (¢).

Where a horse has been injured by negligent driving,
the jury must give as damages the expenses of curing the
horse and of his keep during that time, in addition to the
difference between the value of the horse before he was
injured, and his value after he had been cured. Thus in
an action for negligent driving, whereby the plaintiff’s horse
was injured, it appeared that the horse was sent to a
farrier’s for six weeks for the purpose of being cured.. At
the end of that time it was ascertained that the horse was
permanently damaged to the extent of 20/7. And it was
held by Mr. Justice Coleridge, that the proper measure of
damages was the keep of the horse at the farrier’s, the
amount of the farrier’s bill, and the difference between
the value of the horse at the time of the accident and at the
end of six weeks; but that the plaintiff ought not to be
allowed also for the Aire of another horse during the six
weeks (w).

In an action by the personal representatives of a deceased
person, to recover damages for his death under 8 & 10
Vict. c. 93, the jury, in assessing the damages, are confined
to injuries of which a pecuniary estimate can be made, and
cannot take into their consideration the mental suffering or
the loss of society occasioned to the survivors by his
death (x).

(s) See note (7), ante. (a) Blake v. Midland Rail. Co.,
(t) Gilbertson v. Richardson, 6 21 L. J., Q. B. 238; Pym_v. Great
C. B. 502. Northern Rail. Co., 4 B. & 8.

(u) Hughes vy. Quentin, 80.& P. 396.
703.

327

Injury done
to a carriage.

Measure of
damages
where a
horse has
been injured,

Damages
where a per-
son has been
killed.
328

How limited.

Cannot be

it for
‘uneral ex-

penses.

Damages not
given to a
class but to
individuals.

NEGLIGENCE IN THE USE OF HORSES, ETC.

Such an action cannot be maintained without some evi-
dence of actual pecuniary damage (y), or the loss of the
reasonable probability of pecuniary benefit from the con-
tinuance of the life of the deceased (s).

The expectation of life of the deceased is an element
to be considered by the jury in assessing damages (a).
But the jury are to give a fair compensation, and not to
treat the damages on the footing of the value of an
annuity (4).

Where the widow of the deceased is the plaintiff, and
her husband has made provision for her by a policy on his
own life in her favour, the amount of such policy is not to
be deducted from the amount of damages previously
assessed irrespective of such consideration; as she is
benefited only by the accelerated receipt of the amount of
the policy, and that benefit being represented by the
interest of the money during the period of acceleration, may
be compensated by deducting premiums from the estimated
future earnings of the deceased (c).

No damages can be given for funeral expenses or
mourning. For the subject matter of the statute is com-
pensation for injury by reason of a relative not being alive,
and there is no language in the statute referring to the
cost of the ceremonial of respect paid to the memory of the
deceased in his funeral, or in putting on mourning for his
loss (d).

The remedy given by Lord Campbell’s Act(e) is not
given to a class but to individuals; and, therefore, on the
death of a person, whose income a.ose from land and per-
sonalty independent of any exertion of his own, although
no portion of it was lost to his fumily, as a whol, by his
death, the action is maintainable, if, in consequence of that
death, the mode of its distribution is changed to the detri-
ment of some of the members of the family, though to the
advantage of others (/).

(ce) Grand Trunk Rail. Co. of

(y) Duckworth v. Johnson, 4H. &
. 653.

(2) Pym v. Great Northern Rail.
Co., 4 B. & §. 396.

(a) Rowley vy. London and North
Western Rail. Co., I. R., 8 Ex. 221,
42 L. J., Ex. 1583—Ex. Ch.

(6) «drmsworth v. South Eastern
Rail. Co., 11 Jur. 758; Surrey Sum-
mer Assizes, 1847, cor. Parke, B.,
cited L. R., 8 Ex. 230.

Canada vy. Jennings, 13 App. Cas.
800; 58 L.J.,P.C.1; 459 L. T.,
N. 8. 679; 37 W. R. 480, approy-
ing Hicks v. Newport, §c., Rail. Co.,
4B. & 8. 403, u.

(@) Dalton v. South Eastern Rail.
Co.,27 L. J., C. P. 227.

(c) 9 & 10 Vict. v. 93.

(7) Pym v. Great Northern Rail.
Co., 4 B. & S. 396.
CHAPTER II.
FEROCIOUS AND VICIOUS ANIMALS.

Ir is laid down that “ there is a difference between things Wild and
Jere nature, as lions, bears, &c., which a man must always tame animals.
keep up at his peril, and beasts that are mansuete nature,

and break through the tameness of their nature, such as

oxen and horses ”’ (a).

Thus in the case of Besossi v. Harris (b), the defendant. As to animals

was owner of a bear, which he left fastened by a chain six ae jaune
feet long, on a part of his premises accessible to persons ees.
frequenting his house. The plaintiff walking past his
house was seized by the bear, and injured. An action
being brought for damages for this injury, it appeared at
the trial that there was no notice or caution, written or
verbal, to those visiting the premises, but the bear was
proved to have been always tame and docile in its habits
up to the time of this attack being made on the plaintiff.
The evidence was contradictory as to the plaintiff’s know-
ledge of the bear being there. Mr. Justice Crowder thus
laid down the law to the jury, ‘The statement in the
declaration, that the defendant knew the bear to be of a
fierce nature, must be taken to be proved, as every one
must know that such animals as lions and bears are of a
savage nature. For though such nature may sleep for a
time, this case shows that it may wake up at any time.
_A person who keeps such an animal is bound so to keep it
that it shall do no damage. If it be insufficiently kept, or
so kept that a person passing is not sufficiently protected,
the owner is liable. If the plaintiff, with knowledge that
the bear was there, put herself into a position to receive
the injury, she could not recover. But, assuming such
knowledge, it is for you to say, whether she had such notice
of the proximity of the bear as would amount to negligence
disentitling her to recover.” The jury found for the
plaintiff.

(a) Rew v. Huggins, 2 Ld. Raym. (0) Besozzi v. Harris, 1 F. & F.
1583. 92.
330

What ought
to be the
liability of
the person
keeping them.

The Athenian
and Roman
laws.

The French
Code.

Argument in
Mason v.
Keeling.

FEROCIOUS AND VICIOUS ANIMALS.

An elephant kept for the purpose of exhibition cannot be
said to belong to a class of animals which, according to the
experience of mankind, is not dangerous to man, and there-
fore the owner of such an animal keeps it at his own risk,
and his liability for damage is not affected by his ignorance
of its dangerous character (c). The broad principle which
governs cases of this nature is, according to Bowen, L.J. (d),
that laid down in Fletcher v. Rylands (e), that a person who
brings upon his land anything that would not naturally come
upon it, and which is in itself dangerous, must take care
that it is kept under proper control.

It would appear, however, only fair and right that who-
ever keeps an animal of any description, should keep it at
his risk, and that for any injury occasioned by it he ought
to be civilly responsible, whether he know of its mischievous
propensities or not. And it ought only to be necessary to
prove a scienter, where it is sought to make him erininally
responsible.

Neither the Athenian nor Roman law required it to be
proved, that the owner had notice of the mischievous pro-
pensities of the animal. They probably thought that for
civil purposes, when A. sustains damage by the horns, hoofs
or teeth of an animal in which B. has a beneficial property,
and over which he has the exclusive control, it is for B.,
and not for A., an innocent stranger, to ascertain that
which should determine the degree of care which ought to
be exercised (7).

So also in the French code, neither knowledge in the
owner of the mischievous qualities of the animal, nor even
the existence of these qualities, is regarded (9).

In arguing the case of Mason v. Keeling (h), it was said,
“Tf a man have an unruly horse, which breaks through
his close or stable and does mischief, an action will lie for
it; and itis hard that one should thus have a remedy for
the least trespass done in his land, and none for a trespass
done to his person, by wounding or maiming. Suppose one
keeps several mastiffs, shall he be exempt from an action
for mischief done by every one of them, till he knows

(c) Filburn vy. People’s Palace, §c., (f) See Card v. Case, 5 OC. B.
Co., 25 Q. B. D. 258; 59 L. J., 627, n.
Q. B. 471; 38 W. R. 706—C. A. See (g) Code Civil, No. 1385; Card
the remarks of Wright, J.,in Harper v. Case, 5 C. B. 627, n.; see also
vy. Marchs, [1894] 2 Q. B. at p.323. Exodus, chap. 21, vv. 21, 29, 30, 31,

(2) 25 Q. B. D. at p. 261. 32, 36.

(e:) L. R., 1 Ex. 265; L. R., 3 (A) Mason v. Keeling, 12 Mod.
H. L. 330. 333; S.C, 1 Ld. Raym. 606.
FEROCIOUS AND VICIOUS ANIMALS.

that he has done a prior mischief? Is no care to be taken
to prevent a first mischief?”

And in accordance with this common sense view of the
case, it was decided in Scotland, that a scienter was not
necessary ; and Lord Cockburn said, “I have always
thought that if a dog worries sheep, his master is liable.
I do not attach any weight to the law of England. I am
told that knowledge on the part of the owner is requisite
to make him lable. This is absurd; he cannot know it
until itis done. This would allow each dog to have one
worry with impunity ” (Z).

But this case was carried to the House of Lords, where
Lord Cockburn’s judgment was reversed on the ground of
there being no allegation of a scienter nor of negligence on
the part of the defendant, it being held that blame can
only attach to the owner of a dog, when, after having
ascertained that the animal has propensities not generally
belonging to his race, he omits to take precautions to pro-
tect the public against the ill consequences of those anoma-
lous habits. However, in this case Lord Campbell said,
“Tf in Scotland it is sufficient to allege negligence on the
part of the owner, without averring or proving his know-
ledge of the animal’s habits, it is not that the foundation
of the action is different, but that the Scotch law does
not so readily permit the owner of the animal to rely on
the general consequences from its being supposed to be an
animal mansucte nature, a supposition which experience
shows to be very often far from the truth, and which I am
inclined to think that we in England have sometimes too
readily acted on” (/).

By the law of England, as laid down in a large number
of cases, a scienter is held necessary (/); and therefore, as
there is practically no efficient means of keeping snapping
dogs, &c., off the highways, every dog has the opportunity
of indulging once in the luxury, not, since the 28 &
29 Vict. c. 60 (as to which see post, p. 334), of worrying
sheep, as suggested by Lord Cockburn, but of biting men,
women and children. But it was the opinion of the Court
in Smith v. Cook (2) that the rule requiring proof of scienter

(2) Orr v. Fleeming, 2 Macq. OC.J., and Wills, J., Cox v. Bur-
H. L. Cas. 14; 1 W. R. 339. bidge, 13 CO. B., N. 8. 430, 436.

(j) Ibid., 25 L. T. 73. ()1Q. B. D. 79; 45 L. J.,

(4) But see dictum of Mr. Q. B. 122; 33 L. T., N. 8. 722;
Justice Maule, in Card v. Case, 5 24 W.R. 206.
C. B. 634. See, however, per Erle,

331

Decision in
Scotland.

Reversed in
the House of
Lords.

In England
a scienter is
held neces-
sary.
332

Where a
dog bites a
person.

Necessity of
ownership.

Report that
dog had been
bitten by a
mad dog.

Where dog
had bitten a
child.

Not necessary
to show that
dog had bitten
another man.

Evidence of
scienter.

FEROCIOUS AND VICIOUS ANIMALS.

in the case of injuries by animals mansuete nature is an
artificial rule which ought not to be extended.

Thus, where the plaintiff was severely bitten by a fierce
mongrel mastiff, which the owner allowed to range the
streets of London unmuzzled, it was held that to recover
damages the plaintiff must prove that the defendant Anew
the dog to be of a mischievous nature (72).

In an action to recover damages for injuries caused by a
savage dog, it is not necessary that the dog should belong
to the defendant ; if he harbours it or allows it to resort
to his premises, he sufficiently keeps it to render himself
liable (x). But where the defendant has done all that is
reasonable to get rid of a stray dog which has come on to
his premises, he will not be lable for any injury it may
do (0).

In an action on the case for keeping a mischievous dog,
by which the plaintiff’s child was bitten, report of the dog
having been bitten by a mad dog was held to be evidence
to go to the jury, that the plaintiff Anew the dog was
mischievous and ought to be confined, and particularly as
by tying up the dog he had shown some knowledge or
suspicion of the fact (yp).

It was held also in the case of Gething v. Morgan (q),
that where a dog had bitten a girl four years before he
worried the plaintiff’s sheep, an action would he.

It is not necessary to show that the dog has bitten
another man before it bit the plaintiff; it is sufficient to
show that the defendant knew it had evinced a savage dis-
position by attempting to bite (). But a mere habit of
bounding upon and seizing persons, not so as to hurt or
injure them, though causing sume annoyance and trivial
accidental damage to clothes, will not sustain an action (s).

Where the defendant was a milkman, and his wife occa-
sionally attended to his business, carried on in the premises
where he kept the dog, it was held that a complaint that
the dog had bitten a person, made to the wife on the pre-

(m) Mason v. Keeling, 12 Mod. Campbell, C.J., and Wightman,

332. Erle and Compton, JJ. See Hartley
(n) M*Kone v. Wood, 5C.&P.1. vy. Herriman, 1 B. & A. 620.
(0) Smith v. Great Eastern Rail. (vr) Worth v. Gilling, L. R.,2C.P.

(o, L. RB. 2 C. P. 4; 36 L.J., 1. See also Judge v. Cor, 1 Stark.
Cc. P. 22; 16 L. T., N.S. 246; 15 285; 18 R. R. 769; Beck v. Dyson,
W.R. 131. 4 Camp. 198; 16 R. R. 774; and
(p) Jones v. Perry, 2 Esp. 482. Thomas v. Morgan, 4 D. P. C. 223,
(q) Gething v. Morgan, Times appear to be to the contrary effect.
Newspaper, May 2, 1857, cor. Lord (s) Line v. Taylor, 3 F.& F. 731.
FEROCIOUS AND VICIOUS ANIMALS,

mises, to be communicated to the husband, was evidence of
scienter (t). But the' converse does not hold good, and a
notice to the husband will not, taken alone, be sufficient proof
of scienter to render the wife liable after her husband’s
death (7).

If the owner of a dog appoints a servant to keep it, the
servaut’s knowledge of the dog’s ferocity is the knowledge
of the master (v). But notice to an ordinary servant is
not sufficient of itself to charge the master, (7) though, if
under the circumstances it would be the duty of such
servant on becoming aware of the animal’s ferocity to
inform the master, which in each case is a question for
the jury (y), then the fact of the notice to the servant
would be some evidence of actual knowledge on the part
of the master (s).

With respect to questions of scienter, there is no differ-
ence between a corporation and an individual; and what-
ever is notice to a person competent to receive it is
notice to the corporation. Thus, where a passenger by a
steam-boat went to the premises of the company to which
it belonged, to inquire for his luggage, and while there was
bitten by a dog of the company, which had to the know-
ledge of persons in their employ (but who had no control
over their business or authority with respect to the dog),
previously bitten another person ; it was held that, assum-
ing the company to be aware of the dangerous nature of
the dog, they were liable in damages, but that there was
no evidence of a scienter to enable the passenger to main-
tain an action (a). It is doubtful whether a promise by
the owner of the dog, on being informed of the injury it
has done, to make compensation, is evidence of scienter.
In Beck v. Dyson (b) it was held that it was not so. But
in Thomas v. Morgan (c) it was held that it was evidence,
though of the slightest degree.

An action may be maintained against a person for
damages done to the plaintiff’s game by his dog, which

(t) Gladman v. Johnson, 36. J., C.J. See also Cleverton v. Uffernet,
C. P. 1538. 3 Times L. R. 509.

(w) Miller v. Kimbray, 16 L. T., (2) Applebee _v. Perey, L. B., 9
N.S. 360. C. P. 647; 43 L. J., C. P. 865; 30

(v) Baldwin v. Casella, L. R., 7 L.T., N. S. 785 ; 22 W. R. 704.
Ex. 325; 41 L. J., Ex. 167; 26 (a) Stiles v. Cardiff Steam Naviga-

L. T., N. 8. 707, 21 W. R. 16. tion Co., 33 L. J., Q. B. 310; 10
(x) Ibid. See also Colget v. L.T.,N.S, 844: 12 W. BR. 1080.
Norris, 2 Times L. R. 471—C. A. (b) 4 Camp. 198; 16 R. R. 774.

(y) Applebee v. Percy, L. R., 9 (c) 4D. P. C. 233.
C. P. at p. 658—per Lord Coleridge,

333

Damage done
by dog to
game ground
of action.
334

Evidence of
mischievous
propensity
unnecessary
under 28 & 29
Vict. v. 60.

“Cattle”
includes horses
and mares.

Proof of
ownership.

The Dogs
Act, 1871.

FEROCIOUS AND VICIOUS ANIMALS.

was in the habit of hunting game on its own account, and
in a peculiarly destructive manner, a fact known to the
defendant, who also knew that the plaintiff preserved
game (d).

Tn the case of injury by a dog to sheep or cattle, evidence
of a mischievous propensity of the dog or of the owner’s
knowledge thereof is rendered unnecessary by the 28 & 29
Vict. c. 60; and the Act also simplifies in such cases the
proof of the ownership of the dog.

By sect. 1, “the owner of every dog shall be liable in
damages for injury done to any cattle or sheep by his dog,
and it shall not be necessary for the party seeking such
damages to 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 the owner.” The word “cattle” in this section includes
horses and mares (e).

By sect. 2, ‘The occupier of any house or premises,
where any dog was kept or permitted to live or remain at
the time of such injury, shall be deemed to be the owner
of such dog, and shall be liable as such, unless the said
occupier can prove that he was not the owner of such dog
at the time the injury complained of was committed, and
that such dog was kept or permitted to live or remain in
the said house or premises without his sanction or know-
ledge; provided always, that where there are more occu-
piers than one in any house or premises, let in separate
apartments or lodgings or otherwise, the occupier of that
particular part of the premises in which such dogs shall
have been kept or permitted to live or remain at the time of
such injury shall be deemed to be the owner of such dog.”

Sect. 1 of the 34 & 35 Vict. c. 56 (The Dogs Act, 1871),
provides that any police officer may take possession of any
dog that he has reason to suppose to be savage or dangerous
straying on any highway, and not under the control of any
person, and may detain such dog until the owner has
claimed the same, and paid all expenses incurred by reason of
such detention. By sect. 2, any Court of Summary Jurisdic-
tion may take cognizance of a complaint that a dog is danger-
ous, and not kept under proper control, and if it appears to
the Court having cognizance of such complaint that such a dog

(d) Read vy. Edwards, 11 L. T., Q. B.582; 38 L. J., Q. B. 312; 20
N.S. 311. L. T., N. 8. 849; 17 W. R. 1099.
(e) Wright y. Pearson, L. R., 4
FEROCIOUS AND VICIOUS ANIMALS.

is dangerous, the Court may make an order in a summary
way directing the dog to be kept by the owner under proper
control or destroyed, and any person failing to comply with
such order shall be liable to a penalty not exceeding twenty
shillings for every day during which he fails to comply with
such order. It is not necessary to show knowledge by the
owner that a dog is dangerous in order to support a com-
plaint under this section(/). The Court may order a
dangerous dog to be destroyed, without giving the owner the
option of keeping it under proper control (g). Whether a dog
is under control or not is a question of fact, not of law (4). By
sect. 38, power is given to the local authority to make, and
when made vary or revoke an order placing restrictions upon
dogs being at large, if danger from mad dogs is appre-
hended (i). In the absence of any special provision for the
mode of publication of such an order it is enough to show
that such an order has been posted up in five or six places
within a borough (f).

By sect. 22 of the Diseases of Animals Act, 1894 (57
& 58 Vict. c. 57), (xxx) and (xxxi), the Board of Agricul-
ture may make such orders as they think fit, subject and
according to the provisions of the Act, for prescribing and
regulating the muzzling of dogs, and the keeping of dogs
under control; and for prescribing and regulating the
seizure, detention, and disposal (including slaughter), of
stray dogs and dogs not muzzled, and of dogs not kept
under control, and the recovery from the owners of the
dogs of the expense incurred in respect of their detention.

Where a horse which had strayed upon a highway
without apparent reason kicked a child, it was held,
independently of any question of negligence on the part
of the owner, that in the absence of any proof of knowledge
of a vicious disposition, the latter was not liable (7); the
apparent reason for this decision being, that it is not in
accordance with the ordinary nature of horses to kick
human beings.

But where, through the defect of a gate which the
defendant was bound to repair, the defendant’s horse

(f) Parker v. Walsh, 1 Times this section, see Wren v. Pocock, 34

L. R. 583. L. T., N. 8. 697.
(g) Pickering v. Marsh, 43 L. J., (k) R. v. Huntingdon JJ., 4
M. C. 148; 22 W. R. 798. Q. B. D. 522.

(4) Wren v. Pocock, 34 L. T., (2) Coxv. Burbidge,17 C.B., N.S.
N. 8. 697; Ex p. Hay, 3 Times 245; 32L.J.,C.P.89; 11 W.R.
L. R. 24. 435. See also Michael v. Alestree, 1

(2) As to proof of ownership under Vent. 295.

335

The Diseases
of Animals
Act, 1894.

Straying
horse kicking
a child.

Trespassing
horse injuring
another horse.
336

Cattle straying
off highway.

Liability for
trespass by
dog.

FEROCIOUS AND VICIOUS ANIMALS.

strayed into a field belonging to the plaintiff, and kicked
his horse; it was held that the plaintiff was entitled to
recover without any proof of scienter (mm). So where the
defendant’s horse injured the plaintiff’s mare by biting and
kicking her through the fence separating the plaintiff’s
land from the detendant’s (n); the reason for the decision
in each case being, that the damage was the natural and
direct consequence of a trespass for which the defendants
were liable. In both cases there was evidence of negli-
gence, but in the latter case it was held that the defendants
were liable, apart from any question of negligence on their
part (0).

The result of the authorities dealing with the liability of
the owners of animals for damage done by them under such
circumstances is stated to be, ‘‘ That in the case of animals
trespassing on land, the mere act of the animal belonging
to a man, which he could not foresee, or which he took all
reasonable means of preventing may be a trespass, inas-
much as the same act if done by himself would have been a
trespass” (p).

This rule does not, however, apply to. damage done by
cattle straying off a highway on which they are being
lawfully driven, whether such highway is a country road (q),
or a town street (r); the owner in such case being liable
only on proof of negligence.

Whether the owner of a dog is answerable in trespass for
every unauthorized entry of the animal into the land of
another, as is the case with an ox, is an undecided point.
The better opinion would appear to be that he is not (s).

(m) Lee v. Riley, 18 C. B., N. 8.
722; 34L. J., C. P. 212; 12L. T.,
N.S. 388; 138 W. R. 751.

(n) Ellis v. Loftus Iron Co.,
L. R., 10 C. P. 10; 44 L. J., C. Pz
24; 31 L. T., N. 8. 483; 283 W. R.
246.

(o) The ruling in these cases is in-
consistent with that in Scetchett v.
Eltham (Freem. 534 C. P.) as re-
ported. According to the report,
the declaration stated that the defen-
dant kept his horse so negligently
that it broke into the plaintifi’s
close, and bit some of his horses so
that ‘‘they were spoilt, and died,”
and a verdict was found for the
ae but judgment was arrested

ecause no sctenter was alleged. It ’

is, however, suggested either that the
report is erroneous, and it was really
an action on the case, or that the
decision must be considered as bad
law.

(p) Ellis v. Loftus Iron Co.,
L. BR. 10 C. P. at p. 13, per
Brett, J.

(q) Goodwin v. Cheveley,4H. & N.
631; 28 L. J., Ex. 298; 7 W. RB.
631.

(7) Tillett v. Ward, 10 Q. B. D.
17; 62 L.J., Q. B. 61; 47 L. T.,
N. 8. 546; 31 W. R. 197.

(s) Brown v. Giles, 1C. & P. 118;
Read v. Edwards, 17 C. B., N. 8.
245; 34 L. J., C. P. 31; Pollock on
Torts, 4th ed., p. 450.
FEROCIOUS AND VICIOUS ANIMALS.

Where the plaintiff was digging a well in a garden adjoin-
ing that of the defendant, and the defendant’s dog jumped
over the wall separating the two gardens, and fell down the
well and injured the plaintiff ; it was held that, as the dog
was not shown to be mischievous to the knowledge of the
owner, the plaintiff had no cause of action either for
trespass or breach of duty (¢).

In Card v. Case (uw), Maule, J., is reported to have said
that it might be that an allegation of negligence, coupled
with consequent damage to the plaintiff, would show a
cause of action; and this view appears to have been
adopted by the Court in Jones v. Owen (x), where it was
held that the finding by an arbitrator that the defendant
had been guilty of negligence in allowing his two grey-
hounds, coupled together, to be at large on a highway, with
the result that they rushed against and severely injured the
plaintiff, was good in law although there was no evidence of
scienter ; Willes, J., saying that it was not a case in which
the Court had to deal with the acts of dogs by themselves,
as the cause of the accident was partly the act of the
master and partly that of the dogs.

Where a servant breaking an wngovernable pair of horses
in Lincoln’s Inn Fields, ran over and hurt a man, it was
held that no scienter was necessary, as a place so fre-
quented by the public was ar improper place for horse-
breaking (y).

But where a bull made mad, from having been “cut or
hoxed,” escaped through the defendant’s negligence, and
tossed, gored and wounded the plaintiff, and a verdict was
found for him, the judgment was arrested, because there
was no scienter alleged in the declaration (s).

And where a bull passing along a highway, seeing the
plaintiff with a red handkerchief, ran at and gored him, the
decision turned upon the question, whether or not the
owner of the bull knew that he had a tendency to run at
any person wearing red (a).

So, too, in a case in which a ram, which is an animal
known to be mischievous at certain seasons, butted and
injured the plaintiff's wife in the street, the Court of
Exchequer held that the owner of the animal was not liable

(t) Sanders v. Teape, 51 L. T.,
N.S. 263; 48 J. P. 757.

(u) 5 C. B. at p. 684.

x) 24 L. T., N. 8. 587.

i Michael v. Alestree, 2 Lev.

oO.

172; S. @., 1 Vent. 295.

(2) Bayntine v. Sharp, 1 Lutw.
90.

(4) Hudson v. Roberts, 6 Ex. 697.

Zz

337

Negligence
without proof
of seienter.

Breaking
horses in a
public place.

Where a mad
bull wounds
a person.

Where a bull
singled out a
person wearing
red.

Where a ram
injured a
person.
338

Where a
vicious beast
kills a person.

Owner bound
to secure a
vicious animal
at all events.

He is liable
to an action
for damage.

The gist of
the action.

Not necessary
to prove
negligence.
W hen the
action will
lie.

FEROCIOUS AND VICIOUS ANIMALS.

to an action in the absence of evidence that he was aware
of its propensity to attack passers-by (4).

If through negligence a vicious beast goes abroad, after
warning or notice of his condition, and kills a person, it is
the opinion of Hale, that it is manslaughter in the owner (c).
And if he purposely let him loose, and wander abroad, with
a design to do mischief, even though it were merely to
frighten people and make sport, and the beast kills a man,
it 1s murder in the owner (c).

The owner of a vicious animal, after notice of its having
done an injury, is bound to secure it at all events,
and is able in damages to a party subsequently injured,
if the mode he has adopted to secure it proves insufli-
cient (d).

A person who keeps an animal accustomed to attack and
bite mankind, with /nowledge that it is so accustomed, is
primé facie lable in an action at the suit of any person
attacked and injured by such animal (e).

The gist of the action being the keeping of the animal
after knowledge of its mischievous propensities (e).

And it is not necessary to prove negligence or default
in the securing or taking care of it (ce).

No action hes for an injury done by a fierce dog to a
person trespassing on the owner’s premises (/'); or in-
cautiously entering them by night, knowing the dog to be
let loose for the protection of the premises (g). But
though a person has a night to keep a fierce dog to protect
his property, he must not place it in the open approaches
to his house, so as to injure persons lawfully coming
there (2). If the person injured has no means of knowing
the danger, and is not otherwise in fault, he may recover,
although the owner has attempted to give notice, and it is,
therefore, no answer to such an action, that a printed
notice was put up, if it appears that the plaintiff could not
read (?); and it is immaterial that he has, on a previous

(0) Jackson v. Smithson, 15 M. &
W.. 563.

(c) See judgment—Rez v. Huggins,
2 Ld. Raym. 1583, cited May v.
Burdett, 9 Q. B. 107. But not so if
the owner can show that he turned
the beast out in_ self-preservation
—per Bramwell, B., Reg. v. Child,
C. C. C. Feb. 4, 1858.

(a) Blackman v. Simmons, 3 C. &
P. 188.

(c) May v. Burdett, 9 Q. B. 101.

See also Besozsi v. Harris, 1 F. & F.
92, ante, p. 329. See also Fletcher
vy. fylands, L. R., 1 Ex. 265, 281.

(f) Sarch v. Blackburn, M. & M.
505; 4 0. & P. 297.

(9g) Brock v. Copeland, 1 Esp. 203;
5 R. R. 730; Deane v. Clayton, 1
B. Moo. 225, 245.

(h) Sarch v. Blackburn, M. & M.
505—per Tindal, C.J.
sa Ibid., M. & M.505;4C0.&P.
FEROCIOUS AND VICIOUS ANIMALS.

day, been warned against going near the dog, if the jury
thinks that the injury was not occasioned by his own care-
lessness and want of caution (k).

339

In an action for an injury by a vicious bull, the plaintiff Injury

recovered, although it appeared that the bull was attracted
by a cow, the plaintiff was driving past the field in which
the bull was, and that the plaintiff first struck the bull on
the head to drive him away from the cow (2).

To justify a person in shooting a dog for worrying his
sheep, it is not necessary to prove that he was shot in the
act; it having been held that it is sufficient if it appear
that he has been accustomed to worry sheep, and that just
before he was shot he had been worrying sheep, and could
not have been otherwise restrained from further doing so(m).
In that case the act of shooting would appear to have been
done in the protection of the defendant’s property; but
where the owner of sheep which had been worried by a
dog, shot the dog in a field at some distance from that in
which his sheep had been worried, it was held that there
was no justification as the act was not done in the protection
of his property (n).

It has, moreover, been held that a person cannot justify
shooting a dog worrying his fowls, unless it appear that
the dog was in the very act at the time, and could not
otherwise be prevented (0). But it would seem that if the
transaction had taken place in the person’s poultry-yard, it
would be enough to show that the dog was pursuing the
fowl. Because when a dog is killed pursuing conies in a
warren, it is sufficient to state that the dog was pursuing
conies there, and it is not necessary to prove that the dog
could not otherwise be prevented killing them (p).

The servant of the owner of an ancient deer park may
justify shooting a dog that is chasing the deer, although
such shooting may not be absolutely necessary for the
preservation of the deer; and notwithstanding that the
dog may not have been chasing deer at the moment when
it was shot, if the chasing of the deer and the shooting of
the dog were all one and the same transaction (q).

To justify shooting the dog of another person, it is not

sufficient to show that it was of a ferocious disposition,
(k) Curtis v. Mills, 5 C.&P.489. 10 R. R. 626.
(2) See note (@), ante. (p) Wadhurst v. Damme, Cro.
(m) Kellett v. Stannard, 4 Tr. Jur. Jac. 45.

50 (Ex. Iv.). (q) Protheroe v. Matthews, 5C. &

0
(n) wa vy. Head, 4 0.& P.568. P. 581.
(0) Janson v. Brown, 1 Camp. 41;
z2

occasioned
by a vicious
bull.

Shooting
a dog for
worrying
sheep.

Shooting
a dog for
worrying
fowls.

Shooting
a dog for
chasing deer.

Shooting a
dog in self-
protection.
840

FEROCIOUS AND VICIOUS ANIMALS.

and was at large; but it must be actually attacking the
party at the time. Therefore, where the defendant was
passing the plaintiff's house, and the plaintiff’s dog ran out
and bit his gaiter, and on the defendant turning round
and raising his gun, the dog ran away, it was held that
the defendant was not justified in shooting it (r). Itis a
question for the jury whether a person who has struck or
killed a dog has done so for his own preservation, or
whether it was a wilful and malicious trespass on his
part (s).

(r) Morris v. Nugent, 7 C. & P. (s) Hanway v. Boultbee,4 C0. & P.
572. 3850; 1M. & Rob. 15.
CHAPTER III.

THE LIABILITIES OF PARTIES HUNTING OR TRESPASSING
UPON THE LANDS OF ANOTHER.

Hunting and Trespassing.

Wuere the fox, gray, or otter, and other noxious ani-
mals, are pursued as vermin, and the governing object
of the pursuers is their extirpation, as such, and not merely
the amusement of “a run,” the law, as laid down in the
older authorities, is to a certain extent correct at the present
day.

It is laid down that one may justify hunting foxes over
the ground of another because they are noisome vernvin (a) ;
and also gray or otter and other noxious animals, as they
are injurious to the commonwealth (6). And in Gundry v.
Feltham (c), Lord Mansfield, C.J., said, “By all the cases
as far back as the reign of Henry the Highth, it is settled
that a man may follow a fox into the grounds of another.”

But a person so hunting must not unnecessarily trample
down another man’s hedges, nor maliciously ride over his
grounds; for if he does more than is absolutely necessary
he cannot justify it (c). Therefore, pursuing an animal as
vermin does not justify fifty or sixty people following the
dogs (d).

A man cannot justify entering a close or digging up the
soil to hunt or take a fox, badger, &c., though it be for the
public good (e). So that it appears a person cannot enter
another’s grounds to find vermin, nor can he dig it out when
it has run to earth.

Persons hunting for their own amusement, and going
over the lands of another, are trespassers ; and fox-hunters,
like all other hunters, may be warned off (7).

(a) Nicholas v. Badger, 3 T. R. ford Summer Assizes, 1809.

259, n.; Gedge v. Minue, 2 Bulst. (e) Com. Dig. Pleader, 3 M. 37,
62. and the authorities there cited.
(2) Com. Dig. Pleader, 3 M. 37. (f) Earl of Essex v. Capel, Hert-
(c) Gundry y. Feltham, 17. R. ford Summer Assizes, 1809; Bowyer
337; 1B. R. 215. v. Cook, 4 C. B. 286; 161. J3.,C0. P.

(@) Earl of Essex v. Capel, Hert- 180.

Fresh pursuit
over another’s
land.

Pursuing
vermin.

No unneces-
sary damage.

Digging for a
fox, &e.

Hunting for
amusewent.
342

Earl of Essex
v. Capel,

THE LIABILITIES OF PARTIES HUNTING, ETC.

This point was decided by Lord Ellenborough in the case
of The Earl of Essex v. Capel (g), which settled the law on
the subject and has never been questioned. An action of
trespass was brought for breaking, entering and hunting
over the plaintiff’s lands, and the defence was that the fox
was pursued as vermin. But Lord Ellenborough said,
“ The defendant states in his plea that the trespass was not
committed for the purpose of diversion and amusement of
the chase merely, but as the only way and means of killing
and destroying the fox. Now if you were to put it upon
this question, which was the principal motive? Can any
man of common sense hesitate in saying that the principal
motive and inducement was not the killing of cermin, but
the enjoyment of the sport and diversion of the chase ?
And we cannot make a new law to suit the pleasures and
amusements of those gentlemen who choose to hunt for
their diversion. These pleasures are to be taken only
where there is the consent of those who are likely to be
injured by them, but they must be necessarily subservient
to the consent of others. There may be such a public
nuisance by a noxious animal as may justify the running
him to his earth, but then you cannot justify the digging
for him afterwards ; that has been ascertained and settled
by the law. But even if an animal may be pursued with
dogs, it does not follow that fifty or sixty people have
therefore a right to follow the dogs and trespass on other
people’s lands. I cannot sce what it is that is contended
for by the defendant. The only case which will at all bear
him out is that of Gundry v. Feltham (h) ; if it be necessary
I should be glad that that case should be fully considered.
I have looked into the case in the Year Book (7); that
seems to be nothing more than the case of a person who
had chased a stag from the forest into his own land, where
he killed it; and on an action of ¢respass being brought
against the forester who came and took the stag, he justi-
fied, that he had made fresh suit after the stag; and it was
held that he might state that he was justified, and the
plaintiff took nothing by his writ. This is the case upon
which that of Gundry v. Feltham (h) is built, but it is
founded only on an obiter dictum of Justice Brook, and it

(9) Earl of Essex v. Capel, Hert- N.S. 574; 27 W. R. 215, in which
ford Summer Assizes, 1809, cited in this case was discussed and approved.
Chitty on Game Laws, 31. See also (h) Gundry v. Feltham, 1 'T. R.
Paul v. Summerhayes, 4 Q. B.D. 337; 1B. R. 215.

9; 48 1. 7.,M. 0.38: 397. &., (i) 12 Hen. 8, p. 9.
HUNTING AND TRESPASSING.

does not appear to me much relied on. But even in that
case it is emphatically said by the Judge, that a man may
not hunt for his pleasure or his profit, but only for the good
of the common weal, and to destroy such noxious animals
as are injurious to the common weal. Therefore, according
to this case, the good of the public must be the governing
motive” (k). The jury, under his lordship’s direction,
found a verdict for the plaintiff.

And in an action against a huntsman for hunting over
the lands of another, Lord Ellenborough, C.J., held that
damages might be recovered, not only for the mischief im-
mediately occasioned by the defendant himself, but also by
the concourse of people who accompanied him (/).

And in another case it was laid down by Lord Ten-
terden, C.J., that if a gentleman sends out his hounds and
his servants, and invites other gentlemen to hunt with him,
although he does not himself go on the lands of another,
but those other gentlemen do, he is answerable for the
trespass they may commit in so doing, unless he distinctly
desires them not to go on those lands (m).

If A. starts a hare in the ground of B., and hunts it
into the ground of C. and kills it there, the property is in
A. the hunter; but A. is lable to an action of trespass for
hunting in the grounds as well of B. as of C. ().

And where a stag hunted by the hounds of B. was run
into the barn of A., it was held that B. and his servants
had no right to enter the barn to take the stag, and that if
they did so they would be trespassers (m).

But where a deer strayed from a park on to the plain-
tiff’s land, and ate his grass, and he hounded it with grey-
hounds, which pursued it into the owner’s park, and killed
it there, the Court of Common Pleas held that he was
justified in doing so (0).

Game taken on land, as soon as killed there, becomes the
property of the owner of the land (p), though up to the
time of its being killed, he has no property in it, yet he has
a right to have it kept undisturbed (7); therefore he has a

(k) Earl of Essex v. Capel, Hert-

ford Summer Assizes, 1809, cited in
Chitty on Game Laws, 31.

(1) Hume v. Oldacre, 1 Stark. N.
P. C. 351; 18 R. R. 779.

(m) Baker v. Berkley, 3 C.& P.
32.

(n) Sutton v. Moody, Ld. Raym.
250.

(0) Barrington v. Turner, 3 Lev.
28.

(p) Blades vy. Hicks, 9 Jur.,N.8.
1040; 10 C. B., N. S. 713; 30
L. J., C. P. 347; 11 H. L. C. 621;

34 L.J., C. 2. 286; Rigg v. Earl of

Lonsdale, 1 H. & N. 923.
(q) Per Keating, J., Read v.
Edwards, 11 L. T., N. 8. 311.

343

Huntsman
liable for
damage done
by the field.

Master of
hounds, when
responsible
for the field.

Killing a
hare on
another’s
land.

Taking a stag
on another’s
land.

Hunting a
stray deer.

Dead game
property of
owner.

He has a
right to have
344

his game
undisturbed.

Cattlegate

owners have
not the right
of shooting.

Reservation
of rights of
lords of the
manor under
Enclosure
Acts.

Who may kill
hares without
a game certi-
ficate.

Ground Game
Act, 1880.

THE LIABILITIES OF PARTIES HUNTING, ETC.

right of action against the master of a dog, which is in the
habit of disturbing and destroying it, after having received
due notice of the fact, and taken no steps to restrain it (q).

The customary right of pasture in a manor, or cattle-
gates, gives the owners no right to possession of the soil;
but the ownership of it remains in the lord of the manor,
subject to the right of several pasture upon it by the cattle-
gate owners, and therefore the lord may maintain trespass
against a cattlegate owner for sporting over it without his
permission (7).

The reservation of the rights of the lords of the manor
under Enclosure Acts reserves the right of shooting ; there-
fore in the case of Graham v. Ewart (s),1n which Sir James
Graham was entitled under a private enclosure Act “ to
all mines and minerals within and under the soil, and to
other rights, royalties, liberties and privileges in and over
the same,” it was held by the Exchequer Chamber, revers-
ing the decision of the Court below, and overruling Grreat-
head v. Morley (t), that the right of hunting, fishing, shoot-
ing and fowling over the allotment in question was thereby
intended to be included, and that this right must be
exclusive, for that was the character of the right existing
before the Act passed, and the object of the proviso was
expressly to preserve the former right unimpaired by the
consequences of the enclosure. It was also held in this
case, that a subsequent concurrent enjoyment of sporting
for more than twenty years by the owners of the allotments,
claiming to do so as of right, did not deprive the original
lord of his exclusive right.

Persons in the occupation of enclosed ground, and in
certain cases owners, may kill(w) hares without a game
certificate (rv). The owner may also give authority to kill
hares, to be limited to one person at the same time in any
one parish. This authority is to be sent to the clerk of
the peace for registration, who is also to receive notice of
revocation (y).

And now by the Ground Game Act, 1880 (43 & 44 Vict.
c. 47), every occupier of land has a right, inseparable from
his occupation, to kill hares and rabbits concurrently with

(gq) Per Keating, J., Read v. (4) Greathead v. Morley, 3 M. &
Edwards, 11 L. T., N. 8. 811. G. 139.

(7) Rigg v. Earl of Lonsdale, 1 () Not to authorize the laying of
H. & N. 923. poison, 11 & 12 Vict. ¢. 29, s. 5.

(s) Graham vy. Ewart, 26 L. J., (x) Ibid. s. 1.
Ex. 97. (y) Ibid. s. 2.
HUNTING AND TRESPASSING.

any other person entitled to kill the same on land in his
occupation (section 1); where the occupier is otherwise en-
titled to kill ground game on land in his occupation, he
cannot divest himself wholly of such right (section 2); and
all agreements in contravention of the right of the occupier
to destroy game are declared void (section 3). The occupier
and the persons duly authorized by him do not require a
game licence for the purpose of killing ground game under
the Act. But they are not exempt from the Gun Licence
Act, 1870 (section 4).

And it is “lawful for any person to pursue and kill, or
join in the pursuit and killing of, any hare by coursing
with greyhounds, or by hunting with beagles or other
hounds, without having obtained an annual game certifi-
cate ” (3).

Where acts terminate in themselves, and once done
cannot be done again, there can be no continued trespass,
as hunting and killing a hare or five hares. But hunting
may be continued as well as spoiling, consuming or cutting
grass (a).

When two persons are engaged in a common purpose,
what one does is the act of both. Therefore, in a case in
which A. and B. were driving in a trap along the turnpike
road for a lawful purpose, and A. got out of the trap, went
into a field, and shot a hare, which he gave to B., who had
remained in the trap, it was held that there was sufficient
evidence that B. was present aiding and abetting A. ina
trespass in pursutt of game (under 11 & 12 Vict. ¢. 43, s. 5),
and that he was not the less an aider and abettor, because
he might have been convicted as a principal (0).

Under 1 & 2 Will. 4, c. 32 (¢), trespassers in pursuit of
game may be required to quit the land, and to tell their
names and abodes, and in case of refusal may be arrested
and brought before a justice within twelve hours. And
any trespasser, on conviction before a justice, is to forfcit
a sum not exceeding 5/., together with the costs of con-
viction (¢).

But hunters in fresh pursuit of deer, hare or fox (with
hounds or greyhounds) started on other lands, are exempted
from the provisions of 1 & 2 Will. 4, c. 82, against ¢ies-
passers (a).

(2) 11 & 12 Vict. ¢. 29, s. 4. C. B., N. 8. 550.
(a) Monkton v. Pashley, 2Salk.639. (ec) 1 & 2 Will. 4, c. 32, 8. 31.
(6) Stacey v. Whitehurst, 13 W. (d) Ibid. s. 36.

R. 384; Mayhew v. Wardiley, 14

345

Any person
may hunt
hares.

Continued
trespass.

Two persons
engaged in a
common pur-
pose.

Trespass in
search of
game.

Hunting with
hounds or
greyhounds.
346

Jurisdiction
ot justices
ousted.

Trespass from
the highway.

From his own
land to pick
up game.

THE LIABILITIES OF PARTIES HUNTING, ETC.

By 1 & 2 Will. 4, c. 82, s. 30, it is provided that “ any
person charged with any such trespass shall be at liberty
to prove, by way of defence, any matter which would have
been a defence to an action at law for such trespass.” But
the jurisdiction of the justices is not ousted by the claim
of a prescriptive right in gross to kill game on the land,
there being no colour for such a claim; nor by the assertion
that the land is not in the occupation of the lord of the
manor, but is vested in other persons, as the claim of title
to oust the jurisdiction of the justices must be a claim of
title in the party charged, and not in a third person (¢).
In a case in which a prescriptive right in gross to kill
game is set up, which is an impossible right, unknown to
the law, the bond fides is immaterial; but where a bond fide
and probable right of property is set up, the justices are
bound to hold their hands(7/). The mere belief, however,
on the part of the alleged trespasser that he has such a
right, is not a bond fide claim of right (g).

A landlord may give verbal permission to another to
take game on his land, and such permission is a justification
for a fresh pursuit of game on an adjoining field within the
meaning of section 80 (A).

It is a trespass in pursuit of game within the meaning of
this statute to fire at it from the highway (¢). But merely
sending a dog into an adjoining cover in search or pursuit
of game, is not a trespass by entering and being in or upon
such cover, the Act requiring a personal trespass (4).

A person who from his own land shoots a pheasant in
the land of another, and goes on such land to pick the bird
up, commits a ¢respass in pursuit of game within the Act,
the shooting and the picking up the game being one
transaction (2). But it is not a trespass in pursuit of game
to pick up dead game, which rose from the person’s own
land, and fell dead within the land of another (2).

(e) Cornwell vy. Sanders, 3B. & 8.
206.

(f) Reg. v. Kayley, 10 L. T.,
N. 8. 389. See also Wathins v.
Major, L. R., 10 C. P. 662; 44
L. J., M. C. 164; 33 L. T., N.S.
352; 24 W. R. 164; Lovesey v.
Stallard, 30 L. T., N. 8. 792.

(g) Per Wightman, J., Cornwell
y. Sanders, 3 B. & 8.213. See also
Leatt y. Vine, 30 L. J., M. C. 507;
Rk. vy. Cridland, 7 E. & B. 8538;
Morden v. Porter, 7 C. B., N.S.
641; Legg v. Pardoe,9 C. B., N.S.

289; Adams v. Masters, 24 L. T.,
N.S. 502; Reg. v. Critchlow, 26
W. R. 681; Birnie vy. Marshall, 35
L. T., N. 8. 373.

(h) Jones vy. Williams, 46 L.J.,
M. C. 270; 36 L. T., N.S. 559;
25 W. BR. 501.

(t) Mayhew v. Wardley, 14 C.B.,
N.S. 550.

(k) R. v. Pratt, 24 L. J., M.C.

(2) Osborn v. Meadows, 12 C. B.,
N.8. 10.

(m) Kenyon v. Hart, 13 W. R. 406.
HUNTING AND TRESPASSING.

Under 25 & 26 Vict. c. 114, s. 2, a person may be
convicted of having obtained game by unlawfully going on
land in search or pursuit of game, without evidence of his
having been on any particular land (7).

The owner of a close must first request a trespasser to
depart before he can lay hands on him to turn him out,
because every impositio manuum is an assault and battery,
which cannot be justified on the ground of a person
breaking into the close, without a request (0).

But in case of actual force, as in burglary or breaking
open a door or gate, it is lawful to oppose force to force ;
and if one breaks down the gate, or comes into my close
zi et armis, J need not request him to be gone, but may
lay hands on him immediately, for it is but returning
violence with violence (0).

Therefore to trespass for an assault and battery, it was
held that the defendant might plead that the plaintiff, with
force and arms and with a strong hand, endeavoured forcibly
to break and enter the defendant’s close, whereupon the
defendant resisted and opposed such entrance, &c.; and it
was held that if any damage happened to the plaintiff it
was in consequence of the defence of the possession of the
close (py). And it is also a good defence to an action for an
assault that it was committed in an attempt to take from
the plaintiff dead rabbits of the defendant’s master, which
he refused to give up (q).

A horse cannot be distrained damage feasant if there be
a rider upon him; for if such a distress were permitted, it
would perpetually lead to a breach of the peace (rv). And
indeed if a man or woman be riding a horse, it cannot be
distrained at all (s).

A man has an action of frespass against another for
riding over his ground, though it do him no damage; for it
is an invasion of his property, and the other has no right to
come there (¢).

But where a dog jumps into a field without the consent

(n) Evans v. Botteril, 33 L. J.. N. 8. 718; 80 L. J., C. P. 347;
M. CG. 50. And see as to this statute, 11 H. L. C. 621; 34 L.J.,C. P.
Broun v. Turner, 13 C. BN. 8. 28

6.
(r) Storey v. Robinson, 6 T. R.
188; 3 R. R. 137.

485; Hallv. Knox, 33 L.J.,M.C.
1; Rv. Parker, 33 L. J., M. C.

136. (s) Co. Litt. 47 a, cited Parsons v.
(0) Green v. Goddard, 2 Salk. Gingell, 4 C. B. 550. And see Wedd
640. y. Bell, 1 Sid. 440.

(p) Weaver v. Bush, 8 T. R, 78.
(y) Blades v. Higgs, 10 C. B.,

(t) See per Holt, C.J., Ashby v.
White, 1 Smith's L. C. 125.

347

Under 25 & 26
Vict. c. 114.

Laying hands
on a tres-
passer.

Opposing
force to force.

Defence to an
action.

Horse with a
rider cannot
be distrained.

Action of
trespass lies
for riding over
land.

But not where
a dog jumps
into a field.
348

Maintenance
of fences.

Gate of a field
left open.

Gate of a
railway
crossing left
open where
there is a
statutory
obligation.

THE LIABILITIES OF PARTIES HUNTING, ETC.

of its master, itis not a trespass for which an action will
lie (w).

The obligation to make and maintain fences, both at
common law and by the Railway Clauses Consolidation
Act (2), is only as against the owners or occupiers of the
adjoining close. If the company neglect to fence, neither
they nor their servants can recover for injury caused by
animals straying on their land (y), nor can the tenants of
the land(z). And where the plaintiff's sheep, trespassing
on A.’s close, strayed upon the defendant’s railway which
adjoined, through a defect of fences which the defendants
were bound as against A. to make and maintain, and was
killed; it was held by the Court of Common Pleas that the
plaintiff could not recover (a).

But a person using the lands of an adjoining owner by
his permission is in the same position as he is ()).

A person whose field adjoins a highway may leave his
field open and permit cattle to pass over it. He cannot
distrain them if he has suffered them to come there; but he
commits no breach of duty by leaving the field open (¢).

The following important case decided that where a rail-
way company is by statute bound absolutely to keep the
gates of its level crossings closed, it is lable for damage
occasioned to a trespasser in consequence of one of these
gates having been left open. It appeared that the Y. Rail-
way passed over a highway on a level, and that there were
gates across each end of the road so crossed by the line of
rauway. Some horses belonging to the plaintiff leaped
over the fence of a field, in which they had been placed,
into a second field, and from that over a broken gate into a
third field, all three being the plaintiff’s fields; they then
strayed through an open gate of the third field into the high-
way crossed by the railway on a level. One of the gates
across the end of the road where it was crossed by the line
of railway having been left open, the horses strayed through

(uw) See per Parke, J., Brown v. C.P.D. 184; 38 L. T.,N. 8. 392;
Giles, 1 C. & P. 119; Read vy. 26 W.R. 634.
Edwards, 11U. T. 311. (a) Ricketts v. East and West
(x) 8 & 9 Viet. c. 20,8. 68. And = India Docks and Birmingham June»
see Burton v. North Eastern Rail. tion Rail. Co., 21 L. J., C. P. 201.

do., L. R., 8 Q. B. 549; 387 L. J., (b) Dawson v. Midland Rail. Co.
Q. B. 258; 18 L. T.,N. 5. 795;16 LL. R., 8 Ex.8; 42 L. J., Ex. 49;
W. R. 1194. 21 W. Te 56.

(y) Child v. Hearn, lu. R., 9 Ex. (c) See per Patteson, J., Fawcett
176; 43 L.J., Ex. 100; 22W.R. ov. York and North Midland Rail.
864. Co. 16Q. B. 617: 20 L. J., Q. B.

(s) Wiseman v. Booker, L. R., 3 222,
HUNTING AND TRESPASSING.

it on to the railway, where they were soon afterwards
killed by one of the company’s trains. An action was
brought by the plaintiff against the railway company, who
contended that the horses were, under the circumstances,
trespassers on the highway. But it was held by the Court
of Queen’s Bench, that the plaintiff was entitled to recover
the value of his horses from the company, because the
obligation imposed on them by 5 & 6 Vict. ¢. 55, s. 9, to
keep the gates closed, was not only against cattle travelling
on the road but also against all cattle straying there (d).

A very similar conclusion was arrived at in Charman v.
South Eastern Railway Company (e), which was an action
for not properly fencing the defendants’ line at a level cross-
ing in accordance with their statutory obligation under section
47 of the Railway Clauses Consolidation Act (8 & 9 Vict.
ce. 20), whereby two horses belonging to the plaintiff strayed
on to the line and were killed. At the trial, it appeared that
there were gates at the level crossing of the full width of
the road properly so called, but that a swing gate had been
placed by the defendants upon a piece of land beyond the
limit of the road, on the same line with the gates, for the
convenience of foot-passengers using the crossing, and that
plaintiff's horses after straying from his land arrived at the
gates at the level crossing, and finding them closed, turned
aside to the swing gate, and forcing their way through it,
owing to the defective condition of the posts, got on to the
line and were killed by a passing train. It was held that
there was evidence of a breach of the defendants’ obligation
to fence in the railway from the road, and that they were
therefore liable.

The provisions of the 5 & 6 Vict. c. 55, s. 9, and presum-
ably of the 8 & 9 Vict. ¢. 20, s. 47, as to making and main-
taining gates where a railway crosses a road on a level, do
not apply to a railway belonging to a private owner, and not
constructed under parliamentary powers, nor used for the
conveyance of passengers (,/’).

In the preceding cases 1t will be observed that there was
an express statutory obligation to keep the gate closed
across the road under all circumstances; consequently, the
company were guilty of committing a wrong, in omitting

(a) Faweett v. York and North Q. B. 597; 37 W. R. 8—C. A.
Midland Rail. Co., 16 Q. B. 610; (f) Matson v. Baird, 3 App. Cas.
15 Jur., Q. B. 178; 20 L. J.,Q.B. 1082; 89 L. T., N. 8. 304; 26
Dv2. W. R. 835.

() 21 Q. B. D. 624; 67 L. J.,

349

Statutory
obligation to
maintain gates.

Gate ot
station left
open where
there is no
statutory
obligation.
350

Fence within
station-yard.

THE LIABILITIES OF PARTIES HUNTING, ETC.

to do so. But under section 68 of the last-mentioned Act,
the obligation of a railway company is merely to fence
against the owners and occupiers of adjoining lands, and
therefore where some horses strayed into a high road, and
thence into the yard of a railway station, the gate of which
was open, from which they got on the line through a gap in
the fence, and were killed by a train, it was held that the com-
pany were not responsible for the injury, inasmuch as their
obligation under section 68 is co-extensive only with the com-
mon law prescriptive obligation to repair fences, which would
only render them responsible, if the horses were using the
highway according to the dedication of the owner of the
soil(g). So, where a colt had strayed on to a highway, and
whilst being driven home escaped into a railway-yard and
thence on to the line, and was killed, the company were held
liable, as the colt was then lawfully using the highway (h).
But if the adjoining land belongs to the company, and cattle
stray thence on to the line, and are killed, the company are
not lable ; nor if cattle are by the permission of the com-
pany grazing on the slopes or embankments of the railway,
or in a yard belonging to the company, and stray thence on
the line, and are injured (2).

There is no obligation upon a railway company carrying
cattle to provide fences or guards at the station where the
cattle may be landed, between the line and the station-yard,
so as to prevent them straying on the line (A).

(g) Manchester, Sheffield and Lin- (t) Marfell v. South Wales Rail.
colnshire Rail. Co. v. Wallis, 14 Co.,29 L. J., C. P. 315.
C. B. 218. (A) Roberts v. Great Western Rail.
(h) Midland Rail. Co. v. Daykin, — Co., 4 Jur., N. 8. 1240.

17 C. B. 126.
PART III.
RACING, WAGERS, AND GAMING.

—

CHAPTER I.

THEIR HISTORY, RISE, AND PROGRESS IN THIS COUNTRY.

Durine the Pharaoh Dynasty the Egyptians seem to have
been well acquainted with the use of the war-horse, and from
dealers out of Egypt Solomon derived a great supply of
horses, not only for his own use, but also for the purposes
of resale to the people living between Palestine and the
Euphrates (a). It has been thought, from the name given
by the Egyptians to the horse, that it was introduced into
Eeypt originally from Persia (4).

The most striking feature in the Biblical notices of the
horse is the exclusive application of it to warlike pur-
poses (¢), with one exception, when it is mentioned as
employed in threshing by trampling upon the strewed
grain (d).

The first mention of the British horse is made by Julius
Cesar; and when he invaded the island, he was opposed
by a host of war-chariots, which must have been drawn
by active powerful horses. They seem to have been pretty
numerous, as Cassivelaunus, on dismissing the main body of
his army, retained four thousand war-chariots (¢).

Athelstan, who was second in succession from Alfred
the Great, received from Hugh Capet of France, as an
acceptable present, several German running horses (f) ;
and in a.p. 930, he decreed that no horses should be

(a) 1 Kings, x. 28. (e) See Cws. Bell. G. 5, &c., and
(6) Smith’s Dictionary of the Ib. U. K. “The Horse,” 22.

Bible, tit. Horse. (f) See Markham’s Maister-
(ec) Ibid. Peece, 16th edition.

(d) Isa. xxviil. 28.

The time of
the Pharaohs.

Used mostly
for warlike
purposes.

The time of
Julius Cesar.

Reign of
Athelstan.
Reign of
William the
Conqueror.

Reign of
Henry the
First.

Reign of
Henry the
Second.

Reign of
Richard the
First.

Reign of
John.

Reign of
Edward the
Second.

RACING, WAGERS AND GAMING.

sent abroad for sale, or on any account, except as Royal
presents (9).

William the Conqueror was very much indebted to his
superiority in cavalry for the victory at Hastings; he
introduced the Spanish horse, and his favourite charger was
a Spaniard. In his reign there was a marked improvement in
the breed of horses, and about a.p. 1066, we have on a piece
of tapestry wove at Bayonne, the figure of a man driving a
horse and harrow, being the earliest notice of the use of
horses in field labour (g).

In the reign of Henry the First, a.p. 1121, the first
Arabian horse on record was introduced by Alexander

King of Scotland, who presented it and its furniture to a

church (4).

In the reign of Henry the Second, forty years afterwards,
Smithfield was celebrated as a horse market. Fitz Stephen
gives the following animated account of the manner in which
hackneys and charging steeds were tried there by racing
against one another: ‘‘ When a race is to be run by this
sort of horses, and perhaps by others, which also in their
kind are strong and fleet, a shout is immediately raised and
the common horses are ordered to withdraw out of the way.
Three jockeys, or sometimes only two, as the match is made,
prepare themselves for the contest. The horses on their
part are not without emulation ; they tremble, and are im-
patient, and are continually in motion. At last the signal
once given, they start, devour the course, and hurry along
with unremitting swiftness. The jockeys, inspired with the
thought of applause and the hope of victory, clap spurs to
their willing horses, brandish their whips and cheer them
with their cries” (2).

An old Metrical Romance records the excellence and
great value of two horses belonging to Richard Cour de
Leon, which he purchased at Cyprus, and which therefore
were probably of Eastern origin (7).

John accumulated a very numerous and valuable stud of
horses; and he formed our breed of draught horses by
importing one hundred chosen Flemish stallions (,/).

Edward the Second, one hundred years afterwards, in
the beginning of the fourteenth century, purchased thirty
Lombardy war horses, and twelve heavy draught horses.

(g) Lib. U. K. “The Horse,” U.K. “The Horse,” 24.
23. . : (¢) Lib. U. K. “The Horse,” 24.
(h) See Fitz Stephen, and Lib. (7) Ibid. 25.
THEIR HISTORY, RISE AND PROGRESS.

Lombardy, Italy and Spain at that time supplied the most

valuable cavalry or parade horses (/).
Edward the Third devoted one thousand marks to the

Reign of

Third.

353

purchase of fifty Spanish horses, and formal applications eee the

were made to the kings of France and Spain for their safe
conduct. The king had many renning horses (k), the
precise meaning of which term is not quite clear; and he
prohibited the exportation of horses under very heavy
penalties (7).

In the reign of Richard the Second, the price of horses
rapidly increased, and to such an extent, that in a.p. 1386,
a proclamation was issued regulating their price; and it
was ordered to be published in Lincolnshire, Cambridge-
shire, and the East and West Ridings of Yorkshire (m).
In this reign games are first mentioned in the statute
book; and we find that in a.p. 1889, servants in hus-
bandry or labourers were prohibited wearing any sword,
buckler, or dagger ; or playing at tennis, football, quoits, dice,
casting of stone kails, and such like importune games (n).

Reign of

Second.

This statute was confirmed and extended in the reign of Reign of

Henry the Fourth, a.p. 1409, and an additional penalty
of six days’ imprisonment was imposed (0).

In the reign of Henry the Seventh, a.p. 1494, we find
the legislature paying much attention to the breed of
horses, as being of great importance to the defence of the
kingdom. It appears that horses had at this time become
scarce and expensive, and it was supposed to be the con-
sequence of many horses and mares having been exported.
To remedy this evil an Act was passed which prohibited
any horse or mare being carried out of the realm without
the king’s licence. But any denizen might carry a horse
beyond the sea on making oath that it was for his own use ;
and any mare of three years old or upwards, whose price
was not above six shillings and eight pence, might be
exported, the owner, however, being compelled to sell her
at the port to any person who should bid him seven
shillings (7).

In the reign of Henry the Eighth, a.p. 1530, it was
further enacted, that any person conveying any horses,

(j) Ibid. 25. (m) 12 Ric. 2,c. 6. See26 & 27

(&) See Markham’s Maister- Vict. c. 125.
Peece, 16th edition, and Lawrence (o) 11 Hen. 4, c. 4, repealed by

on ‘‘ The Horse,”’ vol. i, cap. 5. 83 Hen. 8, ¢. 9.
2) Lib. U. K. “The Horse,” 25. (p) 11 Hen. 7, ¢. 13, repealed by
(m) Ibid. 26. 25 Car. 2, ¢. 6.

O. AA

Henry the
Fourth.

Reign of
Henry the
Seventh.

Reign of
Henry the
Eighth,

6 Richard the
354

RACING, WAGERS AND GAMING.

geldings or mares to any parts beyond the sea, without the
king’s licence, should forfeit forty shillings for every
poll (7). It appears, however, that notwithstanding these
enactments, good horses continued to be scarce, and the
breed of “good, swift and strong horses” was supposed
to have decayed on account of “little horses and nags
of smail stature and value being suffered to depasture and
also to cover mares and felys of cery smadl stature.” To
remedy this, an Act was passed in a.p. 1535, compelling
the owners and occupiers of deer-parks of a mile or
upwards in circumference, to keep a certain number of
foal mares, in proportion to the extent of their grounds,
such mares to be at least thirteen hands in height, and to
be covered by horses of fourteen hands or upwards (7).
This Act did not extend to the counties of Westmore-
land, Cumberland, Northumberland and the bishoprick of
Durham (s).

The breed, however, still continued to decay and di-
minish ; and it was supposed to be in consequence of “little
stoned horses and nags, of small stature and of little value,”
being suffered to depasture in “the forests, chases, moors,
marshes, heaths, commons and waste grounds in the realm,”
and also to cover mares feeding there. The legislature, to
remedy this evil, passed another Act in a.p. 1540, which
prohibited any stoned horse, under fifteen hands, being
pastured on such lands throughout the greater part of
England and the whole of Wales, or under fourteen hands
elsewhere (f). Any person, on measuring a horse which
was under the lawful height, might seize and retain it for
his own use (i); the pastures were to be driven once a year,
and any unlikely looking beasts were to be killed (v) ; and
the owner of every horse, mare or gelding infected with the
scab, at any time pasturing on these grounds, was to forfeit
ten shillings (7). An Act was also passed prescribing the
number of stoned trotting horses for the saddle each man
was to keep, according to his degree(x). However, these
enactments do not seem to have had the desired effect, as
the breed of horses had sadly degenerated ; for Blundeville,
who wrote in the reign of Queen Elizabeth, tells us that

(q) 22 Hen. 8, c. 7. (w) 32 Hen. 8, c. 18,s. 3.
(r) 27 Hen. 8, c. 6, ss. 2, 4, re- (v) Ibid. ss. 6, 7.
pealed by 26 & 27 Vict. c. 125. (w) Ibid. s. 9.
(s) 27 Hen. 8, c. 6, s. 5. (x) 33 Hen. 8, c. 5, now virtually

(¢) 32 Hen. 8, c. 13, s. 2, repealed repealed by 21 Jac. 1, ¢. 28.
by 19 & 20 Viet. . 64.
THEIR HISTORY, RISE AND PROGRESS.

they consisted principally of strong clumsy beasts, the few
lighter ones being weak and without bottom.

It appears that in this reign races were first established
in various parts of England, and the first meetings were
held at Chester and Stamford, but there was no regular
system, and all sorts of horses ran. The prize was usually
a wooden bell adorned with flowers; and this afterwards
was exchanged for a silver bell, and “given to him who
should run the best and furthest on horseback on Shrove
Tuesday.’ Hence the phrase of “bearing away the
bell” (y).

In this reign also a variety of regulations were made
with regard to gaming, some of which are in force at the
present day. The object of the legislature was to encour-
age archery, and in a.p. 1511 it was enacted, that ‘all
sorts of men under the age of forty years” should “have
bows and arrows and use shooting,” and that “unlawful
games” should not “be used.” This, however, was fol-
lowed by a much more comprehensive Act, which was
passed in a.pD. 1541; namely 33 Hen. 8, c. 9, being a
“bill for the maintaining artillery and the debarring un-
lawful games.” It professes in its preamble to be founded
on a petition from the bowmen and others concerned in the
making of implements of archery; and they complained
that “many and sundry new and crafty games and plays,
as logetting in the field, slide-thrift, otherwise called shove-
groat,” had caused the decay of archery(s). It made
various regulations concerning the use of bows and arrows,
and imposed a penalty of forty shillings a day for the main-
tenance of “ any common house, alley or place of bowling,
coyting, cloyshcayles, half-bowl, tennis, dicing table or
carding,” or any game previously prohibited by statute,
or any unlawful new game which might afterwards be
invented (a).

There was a penalty of six shillings and eightpence each
time for using and haunting any of the above-mentioned
‘houses or plays and there playing” (0).

Any justice of the peace, mayor, sheriff, bailiff, &.,
had authority to enter any houses or places where un-
lawful games were suspected to be held, and take and
imprison both the keepers and persons resorting and

(y) Lib. U. K. ‘‘The Horse,” 28. Appendix.

(z) 33 Hen. 8, c. 9 (now virtually (2) 33 Hen. 8, c. 9,8. 11.
repealed by 3 Geo. 4, ¢. 41, s. 4, and (d) Ibid. s. 12.
8 & 9 Vict. c. 109, s. 1), ss.1, 2. See

AA 2

355
eo
Oo
aS

Reign of
Edward the
Sixth.

RACING, WAGERS AND GAMING.

playing there, until the keepers should find sureties and
the other parties should give security to abstaintfrom such
practices for the future (¢). The chief authorities in
towns were to make weekly search in such places as
were suspected of being gaming-houses, or, at the furthest,
once a month, under a penalty of forty shillings (d); and
the leases of houses used for unlawful games were to be
void (e).

“No manner of artificer or craftsman, husbandman,
apprentice, labourer, servant at husbandry, journeyman,
mariners, fishermen, watermen or any serving man,” was
to play at “the tables, tennis, dice, cards, bowls, closh,
coyting, logating, or any other unlawful game out of
Christmas, under the pain of twenty shillings forfeit each
time;”? and in Christmas they were to play in “their
master’s houses or in their master’s presence,” and no
person was to play at any “bowl or bowls in open places
out of his garden or orchard,” under the penalty of six
shillings and eightpence (/).

Under certain restrictions and regulations, however, and
on giving sufficient security, a person might sue for a
placard to have common gaming in his house (g). And a
master might license his servant to play with him or any
other gentleman at his own house or in his presence (A).
Also a nobleman or person with an income of 100. a-year
might license his servants to play among themselves at his
or their houses, gardens or orchards (7).

In the reign of Edward the Sixth, it was found that a
great many horses had been exported to foreign countries,
and particularly to Scotland, which was supposed to have
been “the occasion of strength to the king’s enemies,”
and to have caused the decay of the breed of good horses ;
and consequently the legislature in a.p. 1547 passed “ An
Act for not conveying horses out of the realm;” by
which every person endeavouring to convey a horse into
Scotland, not only forfeited the animal, but became liable
to a penalty of forty pounds (/). But every person was
permitted to take abroad with him horses or geldings, on
making oath that he took them for his own use on the
journey, and not with intent to sell them (t); and any

(e) 83 Hen. 8, ¢. 9,8. 14. (h) Thid. s. 22.

(d) Ibid. s. 15. (i) Ibid. s. 23.

(e) Ibid. s. 21, repealed by 26 & (/) 1 Edw. 6, c. 5, s. 1, now re-
27 Vict. ¢. 125. pealed by 3 Geo. 4, uv. 41.

i) Ibid. s. 16. (t) Ibid. s. 6.

g) Ibid. s. 13.
THEIR HISTORY, RISE AND PROGRESS.

mare whose value did not exceed ten shillings might be
exported (2).

It appears that so far the statutes on the subject of
gaming had been directed against it, because it was sup-
posed to withdraw men from the practice of archery, which
seems to have been neglected, where these other sports had
obtained popularity. But in the reign of Philip and
Mary, gaming had become very inconvenient on other
grounds ; for it appeared, that “ by reason of divers sundry
licenses theretofore granted to divers persons, as well within
the city of London and the suburbs, as elsewhere,” for
“keeping of houses, gardens and places for bowling,
tennis, dicing, white and black, making and marring,
and other unlawful games, many unlawful assemblies,
conventicles, seditions, and conspiracies,” had been daily
and secretly practised, and robberies and other misde-
meanours had been committed by idle and misruled people
resorting there. To remedy these evils an Act was passed
in a.p. 1555, “to avoid divers licences for houses where
unlawful games be used,’ and all placards, licences or
grants were made void (m). In the same year of the reign
an Act was passed, “against the buying of stolen horses,”
and certain regulations were prescribed for the sale of
horses at markets and fairs (7).

Notwithstanding the regulations made in the reign of
Edward the Sixth, it appears that a large number of horses
were exported by persons who unscrupulously took the
required oath, and the difficulty of punishing them was so
great, that in the reign of Queen Elizabeth, a.p. 1562, the
permission to persons to take horses abroad for their own
use was repealed (0).

It was now found that in the Isle of Ely and in the
counties of Cambridge, Huntingdon, Northampton, Lincoln,
Norfolk and Suffolk, the fens were so wet and rotten that
they could not carry stoned horses of the size mentioned in
the Act of Henry the Eighth (p), without danger of their
being mired or drowned. The horses of many poor men
had been seized as being beneath the statutable height, and
the breed of horses and all the tillage and carriage within

(1) 1 Edw. 6, c. 5, 8.1, now re- dix; and see Stolen Horses, ante,
pealed by 3 Geo. 4, c. 41, 8. 9. Part 1, Chap. III.

(m) 2 & 8 Ph. & M.c. 9, repealed (0) 5 Eliz. c. 19, repealed by 26 &
by 26 & 27 Vict. c. 125. 27 Vict. c. 125.

(n) 2&3 Ph. & M.c. 7, Appen- (p) 32 Hen. 8, c. 13.

357

Beign of
Philip and
Mary.

Reign of
Queen Eliza-
beth.
358

Reign of
James the
First.

Reign of
Charles the
First.

RACING, WAGERS AND GAMING.

the district had been very much hindered. To remedy
these evils, an Act was passed in this reign, a.p. 1565, by
which the statutable height of stoned horses in those fen
counties was reduced to thirteen hands (q).

We have seen that in the reign of Philip and Mary,
certain forms were prescribed to give publicity to the sale
of horses at markets and fairs, so that if the horse had
been stolen, the owner might have an opportunity of claim-
ing it(r). But these forms seemed to have entirely failed
in their object, because in this reign, horse-stealing had
grown so common, that horses were not safe in pastures
or closes, and hardly so in their stables; and there was
always a ready sale for them in distant fairs and markets.
However, in a.p. 1589, an Act was passed prescribing cer-
tain additional forms to be observed in sales at such places,
and making it a matter of greater difficulty to sell a stolen
horse (s). This is the Act now in force, and which we have
already considered.

In the reign of James the First, an immaterial and
trifling alteration was made in the law of gaming by the
repeal of the statute of Richard the Second in a.p. 1623 (¢).
But an important change took place with regard to horse
racing. Before this time, horse races were mere trials
of speed and strength, without any acknowledged system,
and were mixed up with other exercises of skill and activity.
The pastime had continued on the same footing since the
time of Henry the Eighth, but this reign may be con-
sidered the era in which racing began to be ranked as a
distinct sport. James the First was extremely fond of
tield sports; he established races on a new footing ; under
his patronage rules were promulgated for their regulation,
and his favourite courses were Croydon and Enfield Chase.
From this period also began the practice of breeding a
distinct kind of horse for the especial purpose. And we
find that about this time an Arabian horse, and also the
White Turk, the Helmsly Turk, and Fairfax’s Morocco
Barb, were brought into the kingdom; and a considerable
improvement in the breed of the animal was thus
effected (x).

Charles the First established races in Hyde Park and at

(q) 8 Eliz. c. 8, repealed by 19 & Chap. III.

20 Vict. c. 64. (¢) 21 Jac. 1, c. 28, s. 11, repealed
(r) 2&3Ph. & Moc. 7. by 19 & 20 Vict. c. 64.
%) 31 Eliz. c. 12, Appendix ; (uw) nb. U. K. ‘The Horse,”
and see Stolen Horses, ante, Part 1, 28; and 31 Law Mag. 65.
THEIR HISTORY, RISE AND PROGRESS.

Newmarket; yet, although these were discontinued during
the Protectorate, attention was not withdrawn from breed-
ing, and Cromwell had his stud of race horses (c).

On the Restoration, a new impulse was given to gaiety
and amusement of every kind, and the Newmarket meet-
ings were revived. Charles, who was a great patron of
horse racing, encouraged it by the gift of royal plates at
the principal courses. He purchased brood mares and
stallions in the Levant, which were principally Barbs and
Turks; and the breed was also much improved by horses
brought over from Tangiers, as part of the dowry of his
queen, Catherine of Braganza (y).

No sooner had horse racing been fully established, than
we find an Act was passed to endeavour to prevent the evils
which have unfortunately always attended it. This Act
was 16 Car. 2, c. 7, which came into operation a.p. 1664,
and in it horse racing is mentioned for the first time in the
statute book. It is intituled “An Act against decedtful,
disorderly and excessive gaming,’ and recites that “all
jawful games and exercises should not be otherwise used
than as innocent and moderate recreations, and not as
constant trades or callings to gain a living or make unlawful
advantage thereby; and that by the immoderate use of
them many mischiefs and inconveniences arise, to the
maintaining and encouraging of sundry idle, loose and dis-
orderly persons in their dishonest, lewd and dissolute course
of life, and to the circumventing, deceiving, couzening and
debauching of many of the younger sort, both of the
nobility and gentry, and others, to the loss of their precious
time and the utter ruin of their estates and fortunes, and
withdrawing them from noble and laudable employments
and exercises”’ (s). By this Act persons winning by fraud,
or cheating at cards, dice, tables, tennis, bowls, kittles,
shovel-board, cock-fightings, horse racings, dog-matches,
foot races, and all other games and pastimes, were to forfeit
treble the sum or value of the money so won (a).

Every person losing above 100/. on ticket or credit at
these or any other games and pastimes, either by bearing
a part in them or betting, was discharged from paying any
part of the money; all securities given for it were to be

(z) Lawrence on “The Horse,” garth v. Colley, 10 M. & W. 728.
vol. 1. p. 218; and Lib. U. K. “The (z) 16 Car. 2, c. 7, now repealed
Horse,” 28. by 9 Anne, c. 19, and 5 & 6 Will. 4,

(y) Lib. U. K. “The Horse,”  . 41.

29; and Martin, arywendo, Apple- (a) Ibid. s. 2.

359

Reign of
Charles the
Second.
360

Reign of
Wiliam the
Third.

Reign of

Queen Anne.

RACING, WAGERS AND GAMING.

void; and the winner was to forfeit treble the sum above
1007. so won (b); and it was held that an agreement to run
a horse race for more than 100/. a-side was prohibited by
this statute (c). :

In the reign of William the Third, a.p. 1699, 1t appears
that certain games called lotteries had been set up
throughout England and Wales, by means of which great
sums of money had been fraudulently got from unwary
persons, and from the children and servants of several
gentlemen and merchants; to remedy this, an Act was
passed “for suppressing lotteries,” which declared them to
be public nuisances, and imposed a penalty of 5007. on
every keeper of a lottery, and 20/. on every player (d).

In the reign of Queen Anne the Darley Arabian was
introduced by Mr. Darley, which tended very much to form
our present breed of horses. People began to pay more
attention to pedigree and breed, and we find it noticed as
remarkable, that a horse called Bay Bolton was got by a
farmer’s horse without a pedigree (e).

It was found in this reign that the Act of Charles the
Second was insufficient to prevent the mischiefs arising
from the spirit of gambling then existing, and which it
appears had become so very prevalent that further legisla-
tion was required. Therefore, in a.p. 1710, 9 Anne, c. 14,
was passed, being “an Act for the better preventing of er-
cessive and deceitful gaming.” It recited that ‘the laws
now in force for preventing the mischiefs which may
happen by gaming have not been found sufficient for
that purpose:” and enacted, that all mortgages and
securities, where the consideration was for money won
by gaming or betting, or for repayment of money lent at
gaming or betting, were to be void; that all property so
encumbered was to devolve to such person as would have
been entitled to it in case the owner were dead; and that
all grants or conveyances made to prevent this were to be
deemed fraudulent and void (/).

The loser of 10/. or upwards by playing or betting at
any game might sue for the money so lost within three
months; and if he did not sue within that time any other
person might do so, and recover treble the value, one

(2) 16 Car. 2, ce. 7, now repealed (d) 10 & 11 Will. 3, e. 17.

by 9 Anne, c. 19, and 5 & 6 Will. 4, (¢) Lawrence on ‘The Horse,”
ec. 41, vol. 1. p. 222.
(ce) Edgehury v. Rosindale, 2 Tey (f) 9 Anne, c. 14,8. 1.

94; 8. C., 1 Ventr. 243.
THEIR HISTORY, RISE AND PROGRESS.

moiety to go to the informer and the other to the poor of
the parish where the offence was committed (g) ; any person
winning by fraud by betting or playing at any game,
or any person winning above 102. at one sitting, might
be indicted, and on conviction forfeit five times the
value so won, and if he had cheated, be deemed imfamous,
and suffer such corporal punishment as in cases of wilful
perjury (2).

Two justices might cause persons suspected of having
no visible estate or calling, and who appeared to support
themselves by gaming, to be brought before them, and
find sureties for their good behaviour for the space of
twelve months (7); durimg which time, if they played or
betted to the amount of twenty shillings at any one time
or sitting, they were to forfeit their recognizances (/) ;
and any person assaulting or challenging another on
account of money won at play was to forfeit all his goods,
and be imprisoned two years (4). But this Act was not
to prevent gaming in any of the Queen’s palaces during
her residence there (2). The word “games” used in this
Act was held to comprehend horse races (m) and other
games mentioned in 16 Car. 2, c. 7, and therefore any
race for 10/. a-side or upwards was illegal. In this reign
two Acts were passed to enforce 10 & 11 Will. 3, ¢. 17,
with regard to lotteries (1).

In a.v. 1721, and the following year of the reign of
George the First, an attempt was made by further legisla-
tion to suppress unlawful lotteries (0), and to prevent
foreign lotteries being carried on in this kingdom (p).

In the reign of George the Second it appears that
there was an excessive increase in gaming, and to remedy
the evil, 12 Geo. 2, ¢. 28, was passed, a.p. 1739, being
“An Act for the more effectual preventing of excessive
and deceitful gaming.” This Act declares the games of
the ace of hearts, pharaoh, bassett and hazard to be games
or lotteries by cards or dice within the meaning of the
Act, and imposes a penalty of 2007 on every person

(g) Ibid. s. 2; Frederick, Bart. (x) These were 9 Anne, c. 6, ss.
vy. Lookup, 4 Burr. 2018. 56, 57, now virtually repealed; and

(h) Ibid. s. 5. 10 Anne, c. 26, s. 109, repealed by

(i) Ibid. s. 6. 49 Geo. 3, cv. 109, and 1 & 2 Will. 4,

(7) Ibid. s. 7. c. 36.

(&) Ibid. ». 8. (0) 8 Geo. 1, ¢. 2,88. 36, 37.

(2) Ibid. s. 9. (p) 9 Geo. 1, ¢. 19, virtually

(m) Blaxton v. Pye, 1 Wils. 309; repealed by 7 Geo. 3, c. 48, ss.
Clayton v. Jennings, 2 W. Bla. 706. 4, 5.

361

Reign of
George the
First.

Reign of
George the
Second.
362

RACING, WAGERS AND GAMING.

setting up such games or lotteries, and a penalty of 507.
on every person adventuring at them (7). An Act was
also passed to make more effectual 33 Hen. 8, ¢. 9 (r);
and another to prevent the selling chances in foreign
lotteries (s).

It was found after the passing of 9 Anne, c. 14, that
the number of horse races had very much increased ; and
in consequence of their being run under 10/. a-side, and
therefore for small plates, they had contributed very much
to the encouragement of idleness, and the breed of strong
and useful horses was supposed to have been much pre-
judiced. The legislature, endeavouring to remedy these
evils, passed 13 Geo. 2, c. 19, in a.p. 1740, which was
“An Act to restrain and prevent the excessive increase of
horse races.”’ By this Act all horses were to be entered
by their real owners, and no person was to start more than
one for the same plate, under pain of forfeiting the horse ().
No plate was to be run for under the value of 50/, and
any person starting a horse for a plate of smaller value
was to forfeit 2007, and any person advertising such a
race was subject to the penalty of 1007. (w). An arbi-
trary standard of weights was fixed: a five-year-old horse
was to carry ten stone, a six-year-old eleven stone, and a
seven-year-old twelve stone, under a penalty of 200/. (x),
and every race was to be begun and ended in the same
day (y). The entrance money was to be repaid to the
second best horse (s). And gifts left for annual races were
not to be altered (a).

There appears to have been a distinction in this statute
between a match and a race, for at whatever place a race
might be run, it must always have been for a plate of 50/.
or upwards (2). But it seems that a match was either to be
run at Newmarket or Black Hambleton, or the plate was to
be worth 50/. or upwards (c). This Act also prohibited a
game called passage, which had just then been invented,
and was in great vogue, and also all games with dice except
backgammon (d).

These enactments with regard to weights were probably
found so very inconvenient and useless, that in a.p. 1745,

(q) 12 Geo. 2, c. 28, ss. 1, 2, 3. (xz) Ibid. s. 3.
(r) 2 Geo. 2, c. 28, s. 9, Appendix. (y) Ibid. s. 4.
(s) 6 Geo. 2, c. 34, ss. 29, 30. (z) 13 Geo. 2, c. 19, s. 7.
(t) 13 Geo. 2, c. 19, repealed in so (a) Ibid. s. 8.
far as it relates to horse-racing by 3 (6) Ibid. s. 2
& 4 Vict. ¢. 5. (c) Ibid. s. 5
(

(uw) 18 Geo. 2, c. 19, s. 2.
THEIR HISTORY, RISE AND PROGRESS.

18 Geo. 2, c. 34, was passed, which was “ An Act to explain,
amend and make more effectual the laws in being to prevent
excessive and deceitful gaming ; and to restrain and prevent
the excessive increase of horse races.” It appears that a
game called roulet or rolypoly was then very much played,
and though many had been ruined by it, the law was found
insufficient to prevent it. This statute therefore enacted,
that any person keeping a place for playing roulet or other
games with cards or dice, or himself playing at any of these
games, should be liable to the several penalties of 12 Geo. 2,
c. 28 (e). The privilege of parliament was taken away from
persons against whom proceedings had been commenced
either for keeping a common gaming-house, or for playing at
unlawful games (7). And any person winning or losing by
play or by betting the value of 102. at one time, or 202
within twenty-four hours, might be indicted and fined five
times the value so won or lost (g).

It appears that the circumstance of thirteen Royal Plates
of one hundred guineas each being annually given to be run
for, and the high prices which were constantly paid for
horses of strength and size, was considered a sufficient
encouragement to breeders to raise their cattle to the
utmost possible size and strength; and, therefore, some of
the restrictions which had been thought favourable to the
breed of horses were removed, and it was made lawful
for a person to run any match, or to start and run for
any plate worth 50/. or upwards, at any weights, and at
any place, without being liable to the penalties of 13 Geo.
2,¢. 19, relating to weights (#), and in the same manner
as if that Act had not been made. And it was held that
this sum might be made up by two parties staking 25/.
a-side (i).

In the reign of George the Third, a.p. 1774, it having
been found by experience that making insurances on lives
or other events in which the assured had no interest, had
introduced a mischievous kind of gambling, an Act was

assed ‘“‘for regulating insurances upon lives, and for
prohibiting all such insurances, except in cases where the
persons insuring shall have an interest in the life or death
of the person insured” (4). In the same reign, 4.D.

(e) 18 Geo. 2, c. 34, ss. 1, 2, (h) Ibid. s. 11.
repealed by 8 & 9 Vict. c. 109, s. (i) Bidmead v. Gale, 4 Burr.
15. 2432.

(f) Ibid. s. 7. (k) 14 Geo. 3, ¢. 48.

(y) Ibid. s. 8.

363

Reign of
George the
Third.
364

Reign of
George the
Fourth.

Reign of
William the
Fourth.

RACING, WAGERS AND GAMING.

1787, an Act was passed to render more effectual the laws
then in being for suppressing unlawful lotteries (/) ; but
the Government raised money by state lotteries. In a.p.
1802 an Act was passed to suppress certain games or
lotteries called Jittlegoes, under very heavy penalties (m).
In this reign there was no legislative interference with
regard to racing, but the breed of horses continued to
improve. In a.p. 1809 an Act was passed by which the
duty payable on the exportation of a horse, mare or gelding
was fixed at two guineas each (7), and on the importation at
four guineas each (0). But in ten years this Act was
repealed, and six pounds thirteen shillings was fixed as the
duty payable on importing a horse, mare or gelding, and
they were not mentioned in the table of commodities paying
duty on exportation (p).

George the Fourth was a great patron of horse-racing,
and was owner of some first-rate horses. In this reign,
A.D. 1823, an Act was passed authorizing the infliction of
imprisonment and hard labour on persons convicted of keep-
ing a common gaming house(g); and people playing or
betting on any game of chance in the street or highway are
to be deemed rogues and vagabonds, and be liable to im-
prisonment with hard labour for any term not exceeding
three calendar months (r).

In the reign of William the Fourth an Act was passed,
A.D. 1885, which is now in force. It is 5 &6 Will. 4,c. 41,
being “An Act to amend the law relating to securities
given for considerations arising out of gaming, usurious, and
certain other illegal transactions.’ It repealed so much of
16 Car. 2, ¢. 7, and 9 Anne, c. 14, as made void any note,
bill or mortgage given for any illegal consideration, or made
such securities enure for the benefit of parties in remainder,
and enacted that such securities should not be deemed void,
but to have been given for an illegal consideration (s). So
that money, paid to the holder of any such security, shall
be deemed and taken to have been paid on account of the
person to whom the same was originally given on such
illegal consideration, and to be deemed a debt due from

(2) 27 Geo. 3, c. 1, repealed by Table (B.), Inwards, repealed by 6

46 Geo. 3, c. 148, s. 64. Geo. 4, c. 105.
(m) 42 Geo. 3, c. 119. (g) 3 Geo. 4, ¢. 114.
(n) 49 Geo. 8, c. 98, Sched. (A.), (7) 5 Geo. 4, c. 83, s. 4, Appen-
Outwards, repealed by 6 Geo. 4, dix.
v. 105. (s) 5 & 6 Will. 4, ¢. 41, ss. 1, 3,
(0) Ibid. Inwards. Appendix.

(p) 59 Geo. 3, c. 52, s. 1, and
THEIR HISTORY, RISE AND PROGRESS.

the last-named person to the person who has paid the
money, and be recoverable accordingly in an action at
law (4). In this reign also an Act was passed to prevent
the advertising of any foreign or illegal lottery under a
penalty of 502. (a).

When Queen Victoria ascended the throne, the law of Reign of

racing, wagers and gaming was in a most unsatisfactory
condition ; but the Judges began to look more favourably
upon sporting transactions. Formerly, the tendency of
the Courts was towards an extension of the prohibitory
enactments, and a corresponding strict construction of any
relaxations of them. But now the current of judicial opinion
took another direction, and a different view of the subject
prevailed. Racing and matters connected with it were no
longer regarded in Westminster Hall with an unfavourable
eye, and it is, perhaps, hardly going too far to assert, that
some transactions were supported which former Judges
would barely have allowed to be argued (x). Steeple-
chases were held to be legal (y), as also trotting matches
along a road(s). We have at length, however, had the
law on these subjects simplified and put upon a rational
footing ; and for this change we are indebted to the common
informers who brought qui tam actions against certain in-
fluential individuals.

In a.v. 1840, 3 & 4 Vict. c. 5 was passed, which repealed
so much of 13 Geo. 2, c. 19, as relates to the subject of horse
racing (a); and persons sued for penalties under that Act
might, on application to the Court, have an order granted
for the discontinuance of the suit (2). At this period then
the statutes in force with regard to racing and gaming
were nearly the whole of 33 Hen. 8, c. 9, so much of
16 Car. 2, c. 7, and 9 Anne, c. 14, as had not been repealed
and altered by 5 & 6 Will. 4, c. 41; 2 Geo. 2, c. 28, 8. 9;
12 Geo. 2, c. 28; so much of 13 Geo. 2, c. 19, as does not
relate to racing ; 18 Geo. 2, c. 84; 5&6 Will. 4, c. 41;
and 3 & 4 Vict. c. 5.

Such being the state of the law, the famous case of
Applegarth v. Colley (c) came before the Court of Exchequer
on special demurrer; and after taking time to consider, an

(t) Ibid. 2. 2, and see Gaming, a pl v. Bray, 1 Dowl
ost, Chap. IV. 8. beg
Pela) 6 & 7 Will. 4, c. 66. (a a & 4 Vict, 0. 6,8. 1.
az) 31 Law Mag. 72. id. s. 2.
7 Evans v. Pratt, 4 Scott, N. R. (c) Applegarth v. Colley, 10 M.

378; S. C.,1 Dowl., N. 8. 505. W. 728; and see post, Chap. LV.

Queen Vic-
toria.
366

8 & 9 Vict.
vc. 109.

RACING, WAGERS AND GAMING.

elaborate judgment was delivered by Mr. Baron Rolfe, in
which it was held that at that time a horse race for money
of any amount whatever, given by third persons by way of
prize, was not illegal; that a horse race might be run for a
sweepstakes of 2/. each, as there could not be any loser
to the amount of 107, and therefore it was not within
section 2 of 9 Anne, c. 14, and probably not within section 5
of the same statute; and that, though in balancing the
earlier decisions there might be some doubt whether, under
9 Anne, c. 14, not only the securities given for a gaming
debt, but the contract itself, was avoided, at all events this
must be taken to be the case since 5 & 6 Will. 4, c. 41.

Soon after this decision, numerous gui fam actions were
brought by common informers and others for penalties in-
curred under 16 Car. 2, c. 7, and 9 Anne, c. 14, by betting
on horse races and running coursing matches, &c.; and to
stop these proceedings 7 & 8 Vict. c. 3 was passed, which
was afterwards extended by 7 & 8 Vict. c. 58. By these
Acts all proceedings were to be stayed, on application to
the Court, which had been commenced by common informers
or persons other than the actual losers, for penalties in-
curred by playing at, or betting on, certain sports, pas-
times, and games, viz., horse races, foot races, boat races,
regattas, rowing matches, sailing matches, coursing matches,
fencing matches, golf, wrestling matches, cricket, tennis,
fives, rackets, bowls, quoits, curling, putting stone, football,
or any bond fide variety, or any similar description of these
sports, pastimes, and games (7); no common informers,
but only the actual loser, or his representatives, were to
commence any proceedings for penalties under 16 Car. 2,
ce. 7; 9 Anne, c. 14, or any other Act, for playing at, or
betting on, any of the sports or pastimes above enu-
merated (e). And if such proceedings were in the nature
of an indictment, the consent in writing of her Majesty’s
Attorney-General must first have been obtained (/).

These Acts were to continue in force until the end of
that session of parliament. Before the expiration of that
time, however, 8 & 9 Vict. c. 109 was passed, intituled
‘‘An Act to amend the law concerning Games and Wagers,”
and received the royal assent on the 8th of August, 1845.
It recites that “The laws heretofore made in restraint of
unlawful gaming have been found of no avail to prevent

8 ie oe c. 8,8. 1. (f) Ibid. s. 4.
THEIR HISTORY, RISE AND PROGRESS.

the mischief which may happen therefrom, and also apply
to sundry games of skill from which the like mischiefs
cannot arise.” It repeals so much of 33 Hen. 8, c. 9,
whereby any game of mere skill is declared unlawful, or
which enacts a penalty for playing at any such game, or
for lacking bows or arrows, or for not making and continuing
buts or which regulates the making, selling, or using of
bows and arrows, and also so much of the Act as
requires the mayors, sheriffs, bailiffs, constables, and other
head officers within every city, borough, and town in the
realm, to make search weekly, or at the furthest, once a
month, in all places where houses, alleys, plays, places of
dicing, carding or gaming shall be suspected to be had or
kept, and also so much of the Act as makes it lawful for
every master to license his servant, and for every nobleman
or other person worth 100/. a year, to license his servants
or family to play (g). It repeals the whole of 16 Car. 2,
ce. 7, and so much of 9 Anne, ec. 14, as was not altered by
5 & 6 Will. 4, c 41, and also so much of 18 Geo. 2, c. 34,
as relates to 9 Anne, c. 14, or as renders any person liable
to be indicted and punished for winning or losing at play ur
by betting at any one time the sum or value of 10/., or
within the space of twenty-four hours the sum or value of
202. (h). This statute, and the 17 & 18 Vict. c. 38, which
is supplementary to it, make a variety of regulations and
enactments, which will be considered, both with reference
to the decisions which have been come to under the old
law, and as showing the present state of the law of racing
and gaming.

By the 19 & 20 Vict. ce. 82, the duty of 3/. 17s. payable
on every horse kept or used for the purpose of racing (?)
was made payable for every horse which should start or
run for any plate, prize, or sum of money, or other
thing (4).

The whole of this Act is, however, repealed by the 37 &
88 Vict. c. 16, ss. 11, 21, and the duty on race horses is
abolished.

By an Act passed in this reign the duty on importing
a horse was reduced to 12 (2); and now horses may be
imported duty free (m). Acts were passed from time to

(g) 8 & 9 Vict. c. 109, s. 1, Ap- (2) 5 & 6 Vict. c. 47, Table (A.),
pendix. Class 1, repealed by 8 & 9 Vict.

(h) Ibid. s. 15, Appendix. c. 84.

iG

(

') 16 & 17 Vict. c. 90. (m) 9 & 10 Vict. ¢. 23, Table
k) 19 & 20 Vict. c. 82, s. 2. (IY.).

367

Repeal of
duty on race
horses.
368 RACING, WAGERS AND GAMING.

time to indemnify persons connected with Art Unions from
certain penalties (n); and at last an Act was passed under
which they may be legalized by charter (0), which was
supplemented by another Act to remove certain doubts
which had arisen as to their legality (p). The 6 & 7
Will. 4, c. 66, was also amended so as more effectually to
prevent the advertising of foreign and other illegal
lotteries (gq).

After the passing of 8 & 9 Vict. c. 109, an attempt was
made to set up racing lotteries and sweeps, and it was
suggested during the argument of the case of Gatty v.
Field (r), that under the proviso of the 18th section of the
above statute, Derby lotteries were no longer illegal.
They were however held to be on the same footing as other
lotteries, and after that time were gradually superseded by
offices kept for the purpose of betting. In these places lists
were exhibited and odds given in sums high or low, to
suit each customer. Every person was required to stake
his money at the time, and leave it to abide the event of
the race. The natural consequence ensued; persons
entrusted with money embezzled it, to make a venture,
and clerks, servants, and mere children were thus corrupted

and ruined.
16 & 17 Vict. To remedy these evils, 16 & 17 Vict. c, 119, was passed,
fe LD, being “An Act for the suppression of betting houses,”

which received the royal assent on the 20th of August,
1853. It recites that “a kind of gaming has of late
sprung up, tending to the injury and demoralization of
improvident persons, by the opening of places called betting
houses or offices, and the receiving of money in advance by
the owners or occupiers of such houses or offices, or by
other persons acting on their behalf, on their promises to
pay money on events of horse races and the like contin-
gencies.” It prohibits any such betting houses being
kept (s) and makes them gaming houses within 8 & 9 Vict.
ce. 109 (¢). It forbids any person using a place for the
purpose of betting with persons resorting there, or using a
place for the purpose of receiving deposits on bets (wv), and
imposes penalties on persons connected with betting

(n) 7 & 8 Vict. c. 109; 8 & 9 (r) Gatty v. Field, 9 Q. B. 431;
Vict. ¢. 57. 8. C.,15 L. J., Q. B. 408.

(0) 9 & 10 Vict. c. 48, Appen- (s) 16 & 17 Vict. ¢. 119, s. 1,
dix. Appendix.

(p) 21 & 22 Viet. ©. 102, re- (t) Ibid. s. 2.
pealed. (w) Ibid. ss. 1, 3, Appendix.

(q) 8 & 9 Viet. v. 74.
THEIR HISTORY, RISE AND PROGRESS,

houses (), or exhibiting placards or advertising them (y).
This most stringent Act (s), containing various other pro-
visions, has had the effect of putting down betting houses in
those parts of Great Britain to which it extends. It does
not extend to Scotland (a).

The 36 & 37 Vict. c. 38 (The Vagrant Act Amendment
Act, 1873), extends the provisions of the 5 Geo. 4, c. 88,
to gaming in any street, &. with coin, &e.

The 37 Vict. c. 15 (The Betting Act, 1874), amends the
16 & 17 Vict. c. 119, and extends its provisions to Scotland,
and by section 1 it shall be construed as one with that Act,
which is referred to as “ the principal Act.” By section 3,
where any letter, circular, telegram, placard, handbill, card,
or advertisement is sent, exhibited or published, (1) whereby
it is made to appear that any person, either in the United
Kingdom or elsewhere, will, on application, give informa-
tion or advice for the purpose of or with respect to any
such bet or wager, or any such event or contingency as is
mentioned in the principal Act, or will make on behalf of
any other person any such bet or wager as is mentioned in
the principal Act; or (2) with intent to induce any person
to apply to any house, office, room or place, or to any
person, with the view of obtaining information or advice for
the purpose of any such bet or wager, or with respect to
any such event or contingency as is mentioned in the
principal Act; or (8) inviting any person to make or take
any share in, or in connexion with, any such bet or wager ;
every person sending, exhibiting or publishing, or causing
the same to be sent, exhibited or published, shall be
subject to the penalties provided in the seventh section of
the principal Act with respect to offences under that
section (0).

The 42 & 48 Vict. c. 18, after reciting that “the fre-
quency of horse races in the immediate neighbourhood of
the metropolis is productive of much mischief and incon-
venience, and the holding of such races in thickly-populated
places near the metropolis is calculated to cause, and does
in fact cause, annoyance and injury to persons resident
near to places where such races are held;” and (section 1)
enacting that “a horse race within the meaning of this Act
shall mean any race in which any horse, mare, or gelding
shall run, or be made to run, in competition with any other

(w) 16 & 17 Vict. c. 119, 85. 3, 4. (a) Ibid. s. 20.

A ue ae ee (6) 37 Vict. v. 15, Appendix.
2) See post, Chap. V.

oO. BB

369

36 & 87 Vict.
c. 38.

37 Vict. c. 15.

Racecourses
Licensing
Act, 1879.
370

Betting and
Loans (In-
fants) Act,
1892.

Gaming Act,
1892.

RACING, WAGERS AND GAMING.

horse, mare, or gelding, or against time, for any prize of
what nature or kind soever, or for any bet or wager made
or to be made in respect of any such horse, mare, or gelding,
or the riders thereof, and at which more than twenty
persons shall be present,” proceeds (section 2) to declare all
horse races unlawful within ten miles of Charing Cross
unless licensed pursuant to the provisions contained in
sections 3 and 4 of the Act. The Act also imposes certain
penalties on persons convicted of taking part in unlicensed
horse races, and on the owners and occupiers of the ground
where the unlicensed horse races take place; and (section 7)
enacts that every horse race held or taking place in con-
travention of the provisions of the Act shall be deemed to
be a nuisance, and shall be liable accordingly (c).

The 55 Vict. c. 4, renders penal the sending documents
to infants inciting them to betting or wagering. The pro-
visions of this statute, so far as it deals with this subject,
will be found fully set out post, Chapter V.

By 55 Vict. c. 9, s. 1, an Act to amend the 8 & 9 Viet.
ce. 109, any promise, express or implied, to pay any person
any sum of money paid by him under or in respect of an
contract or agreement rendered null and void by the 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 con-
nexion therewith, shall be null and void, and no action
shall be brought or maintained to recover any such sum of
money.

This enactment supersedes the ruling of the Court of
Appeal in Read v. Anderson (d), the effect of which was
that the employment of a turf commission agent, being a
member of Tattersalls’, to make a bet in his own name on
behalf of his principal, implied an authority to pay the bet
if lost, so that on the making of the bet that authority
became irrevocable.

(c) 42 & 43 Vict. c. 18, Appendix. L.JJ., Brett, M.R., dissenting,
(@) 13Q. B. D. 779; 53 L. J., affirming the judgment of Hawkins,
Q. B. 532; 51 L. T., N. 8.55; 32 J.,10Q. B. D. 100.

W. R. 950—per Bowen and Fry,
CHAPTER II.

RACING, STAKEHOLDERS, AND STEWARDS.
Racing.

THERE are now no longer any restrictions with regard to The law as to
racing, and transactions of this description are governed by ™¢ins-
the same laws as all other contracts.

Race horses may be owned by two persons as tenants in Rights of

common, claiming under different titles, and each having P*t-owners.
the right to take the horse, and to use it exclusively, not
destroying it. And such being their rights, money
expended by one according to a previous arrangement for
their common benefit, is recoverable from the other (a).
Thus in a case in which the plaintiff and defendant, owning
a horse in this way, agreed that the plaintiff should have
the entire management of the horse, and that the expenses
of keeping, training, and running him should be borne, and
his winnings shared, by both equally; and the horse
having won nothing, the plaintiff paid the whole expenses ;
it was held that even if a partnership existed between the
plaintiff and defendant (and it was held by Cockburn, C.J.,
that it did) in the management and running of the horse,
half the sum expended by the plaintiff was in the nature of
an advance by him of capital on behalf of the defendant,
and which he was entitled to recover from the de-
fendant (a).

A custom for the freemen and citizens of a particular Custom to
town to enter upon a certain piece of land on a particular ™°°
day for the purpose of horse-racing is a good custom,
and in pleading it, it is not necessary to aver that the
particular day was a seasonable one (d). But such a
customary right can only be applicable to certain in-
habitants of the district where the custom is alleged to exist,
and cannot be claimed by the public at large; and there-
fore if alleged to be in all the Queen’s subjects, it is bad (¢).

(a) French v. Styring, 26 L. J., 729.
C. P. 181. (c) Earl of Coventry v. Willes, 9

(0) Mounsey v. Ismay,1 H.& C. L.T., N.S. 384.
BB 2
372

To resort to
races.

But though a
good custom,
not an ease-
ment within
the Prescrip-
tion Act.

Training
horses on a
common.

RACING, STAKEHOLDERS AND STEWARDS.

A right to race, and a right to resort to races, are on the
same footing; accordingly where a person pleaded to an
action of trespass on Newmarket Heath during the races
a common right for all persons to go and remain for a
reasonable time for the purpose of witnessing the races,
the plea was held to be a bad one(c). Nor does a right of
highway include a right to race (d), or a right in the public
to resort to races (¢).

But though it is a good custom at common law for the
citizens of a particular town to enter upon a certain piece
of land on a particular day for the purpose of horse-
racing, this is not “an easement” within the Prescription
Act (e), the words of which are “no claim which may be
lawfully made at common law by custom, prescription, or
grant, to any way or other easement, or to any water-
course, or to the use of any water to be enjoyed upon any
land, &c., when such way or other matter shall have been
actually enjoyed by any person claiming right thereto
without interruption for twenty years, shall be defeated or
destroyed by showing only that such way, &c. was first
enjoyed at any time prior to such period of twenty years.”
To make this custom to race a claim of right within the
term “easement” in this section, it must be one analogous
to that of a right of way, and a right of watercourse which
follows it, and must be a right of utility and benefit, and
not one of mere recreation and amusement (/).

The rights of common customarily enjoyed by the tenants
of a manor over the waste lands of a manor, or of the
inhabitants of an ancient borough, over waste lands to the
soil of which they are not entitled, does not include the right
of exercising or training horses not belonging to such
tenants or inhabitants, but taken in by them from strangers
to the manor or borough, nor the right of carrying on the
business of a trainer of horses by exercising or training horses
on such waste for profit, without the licence of the lord of
the manor or the owner of the soil(g). Quere, whether they
include the right of such tenant or inhabitant to exercise or
train his own horses otherwise than as a person carrying on
the business of a trainer.

(-) Earl of Coventry v. Willes,9 Ismay, 34 L. J., Ex. 52.

L. T., N. 8, 384. (g) Lancashire v. Hunt, 11 Times
(d) Sowerby v. Wadsworth, 3 F. LL. R. 49, affirming the decision of

& F. 734. . Wright, J., 10 Times L. R. 310,
2&3 Will. 4, ¢. 71, 8. 2. 348.

(e)
(f) Per Martin, B., Mounsey v.
STAKEHOLDERS.

Stakeholders.

A sweepstakes is a stake or fund for which at least
three entrances must be made. There may be any number
of subscribers or contributors, and the whole stake or fund
becomes, under certain regulations, the property of the
winner (/).

Many races run with horses are matches; that is, where
the horse of one person runs against the horse of another
for certain stakes to be awarded to the winner. Such
matches are no doubt lawful, but it seems that the winner
would not be entitled to recover the stakes from the stake-
holder, or from the loser, if they were in his hands, as the
transaction is simply a wager, and void under the 8 & 9
Vict. c. 109, s. 18 (7).

The “Act for the Suppression of Betting Houses” (/)
does not “extend to any person receiving or holding any
money or valuable thing by way of stakes or deposit to
be paid to the winner of any race, or lawful sport, game or
exercise, or” to be paid “ to the owner of any horse engaged
in any race,” as, for instance, to the second horse.

The 18th section of 8 & 9 Vict. c. 109, which makes
void all contracts or agreements by way of gaming or
wagering, and prohibits the winner in such transactions
from recovering either at law or equity, does not “apply to
any subscription or contribution, or agreement to subscribe
or contribute, for or towards any plate, prize, or sum of
money to be awarded to the winner or winners of any lawful
game, sport, pastime, or exercise,” and the entry for a race
which is to be run within a year of the time of such entry
may be effected in the usual manner.

Many of the great races are not run within a year from
the time the horses are entered, and therefore to attach a
liability to a loser who has not paid his entrance, it would
appear necessary, under 29 Car. 2, ¢. 3, s. 4, that some
memorandum or note in writing of the agreement to pay
the entrance money, signed by the party to be charged, or

(h) Batty v. Marriott, 5 C. B.
831.

(i) Batson v. Newman, 1C.P. D.
573; 25 W. R. 85; and see Diggle
v. Higgs, 2 Ex. D. 422; 46 L. J.,
Ex. 721. A contrary opinion was
expressed in the third edition of this
work; but the authority for that

opinion, viz., Batty v. Marriott, 5

C. B. 831, has since been overruled

by Diggle v. Higgs. See post,
377

. ide

e (7) 16 & 17 Vict. c. 119, s. 6,
Appendix. And see Wagers, post,
Chap. III.; Betting Houses, post,
Chap. V.

373

Sweepstakes.

Matches.

The Act for
the suppression
of betting-
houses.

Entry for a
race.

Race not to
be run within
a year.
374 RACING, STAKEHOLDERS AND STEWARDS.

by some other person lawfully authorized by him to do so,
should be given to the stakeholder at the time of entry (h).
However, this need not cause any trouble, as it may be
effected by letter (/). ;

“Scratching” The owner of a horse entered for a race can withdraw,

arace horse. oy as it is termed, “scratch ” him before the race is run,
A curious application was made to Vice-Chancellor Knight-
Bruce on this point. The racing stud of the late William
Charles Earl of Albemarle, including a valuable racehorse
and the stallion “Emperor,” was bequeathed to his wife
Charlotte Susannah Countess of Albemarle. The executor
filed a bill, alleging, among other things, that the personal
estate of the late earl was insufficient to pay his debts, and
considering that the two horses in question and the racing
stud, unless sold immediately, would be greatly depreciated in
value, and that the Countess was unwilling they should be
sold, it was prayed that a sufficient part of them might be
sold, and that the Countess might be restrained from with-
drawing or erasing the above-mentioned racehorse from the
book in which his name was entered for the Derby or
St. Leger Stakes, or any other race.

The Countess also filed a bill in the Court of the Vice-
Chancellor of England, stating that the personal estate was
sufficient, and praying the executor might be restrained from
selling or removing the racehorse, or the stallion “Emperor,”
or the racing stud of the late Earl.

The executor by his petition prayed the direction of Vice-
Chancellor Knight-Bruce’s Court as to the manner in which
these two horses and the stud should be dealt with, and that
the Dowager Countess might be ordered to concur in any
sale which the Court might direct, and for the injunction as
to erasing the name of the racehorse from the race-book, or
otherwise depreciating his value.

An arrangement was eventually made between the parties,
and in the meantime an undertaking was given on behalf of
the Countess, that no step should be taken to “scratch” or
withdraw the racehorse from the book (2).

Clerk of the The clerk of the course is usually the stakeholder at races,

course usally and he is bound to retain the stake till some party be clearly

stakeholder. : ono : :
entitled to receive it; and if he pays it to a party not entitled
to it, he is still liable to pay it to the party who has a proper

(k) See Bentinck v. Connop, 5 Q. (m) Neppelv. Countess Dowager of
B. 693: 1 Dav. & M. 536. Albemarle, betore Vice-Chancellor
(7) See Requisites of the Statute Knight-Bruce, Feb. 18, 1850.
of Frauds, ante, Part I., Chap. I.
STAKEHOLDERS.

title to it, and until all disputes are settled he is the proper
person to keep it (n).

_ But he has no right to the stakes till he gets the money
into his hands; he is never more than a mere stakeholder.
Indeed, if he could bring actions for unpaid stakes, he would
be hable to have actions brought against him for every stake
that was won, whether he had received it or not; and his
situation would not be a very enviable one (0).

The competitors in a race may choose their own stake-
holder or select a substitute for the one nominated by the
rules of the race. Thus, where by the rules of the race the
stakes should have been paid to the treasurer of the Jockey
Club, but the plaintiff insisted on their being retained by
the defendant, it was held that the former could not make
the latter liable, as he had acquiesced in the change (p).

In order to enable one of the parties to maintain an
action against a stakeholder to recover the amount of
stakes deposited with him to abide the determination of
the stewards, the plaintiff must either have the decision
in his favour, or show that it was no longer practicable to
obtain it (q).

The position of the stakeholder towards the parties,
where the race has not and cannot be run, is that of a
debtor to each party for the amount deposited by each.
It appears, therefore, that in that case a specific demand
of the stake from the stakeholder is unnecessary; but
where the race might still be run and decided, each party
must make a specific demand of his stake from the stake-
holder before he can recover from him, because in this
case it is necessary to inform the stakeholder that the
authority given to him to keep the money has been
revoked (7).

He cannot set off a claim of an unpaid stake due from
a person on one race against a stake won by the same
person in another race (s). :

If he cashes a cheque deposited with him, he is not
guilty of a breach of duty, if the parties agreed to treat the
cheque as money (t).

(x) Burrough v. Skinner, 5 Burr. (q) Brown v. Overbury, 25 L. J.,

2639; Marryat v. Broderich,2M.& Ex. 169.

W. 369. (r) Carr vy. Martinson, 28 L. J.,
(o) Per Patteson, J., Chariton v. Q. B. 126. ;

Hill, 5 C. & P. 147. (s) Charlton v. Hill, 5 Cc. & P.
(p) Dines v. Wolf, L. R.,2P.C. 147.

280; 5 Moore P. C. C., N. 8. 382;

(t) Wilkinson v. Godefroy, 9 A. &
20 L. T., N. 8. 251.

E. 536.

3875

Has no right
to the stakes.

Competitors
may choose
their own

stakeholder.

Ground of
action »gainst
stakeholder.

Position of
stakeholdey
towards the
parties, if the
race is not to
be, or cannot
be, run.

Cannot set oF
an unpaid
stake.

Where he
may cash a
cheque.
376

Stake must
abide the
event of a
legal contract.

Recovery of
deposit trom
stakeholder.

Batty v. Mar-
riott over-
ruled by
Diggle v.
Higgs.

RACING, STAKEHOLDERS AND STEWARDS.

When the entrance money has been paid or agreed to
be paid to the stakeholder, it must, according to the general
principle of all contracts, abide the result of the race, which,
being a legal contract, it cannot be recovered by the party
who has made the entry, unless there be a mutual agreement
for the rescission of the contract, which is called being “ off
by consent.” On this point an opinion was expressed by
Mr. Baron Parke, where an action had been brought by a
party to recover back his own entrance money, after a race
had been run, for which his horse had not started. It was
held he could not recover it, because he had given no notice
before the race; and his Lordship said, “ Even if the
plaintiff had given notice in due time that he should
require his stake to be returned, this being a legal horse
race, I have great doubts that it would be recoverable,
the agreement being that it should be deposited to abide
the event, which agreement cannot, as it seems to me, be
varied without the assent of all parties. But here there
was no demand made; no rescission of the contract before
the race”’ (2).

And where before 8 & 9 Vict. c. 109, the sum of ten
shillings was deposited with a stakeholder to abide the event
of a foot race, Mr. Baron Parke said, ‘“‘ The transaction is
valid and the contract bindimg; and therefore one of the
parties cannot determine it by a simple countermand, without
the consent of all the other parties depositing ” (v).

After the passing of 8 & 9 Vict. c. 109, where two
persons agreed to run a foot race, and each of them deposited
10/. with a third person, the whole 204 to be paid by him
to the winner of the race; it was held by the Court of
Common Pleas that the loser could not recover back his
deposit from the stakeholder; a foot race being a lawful
game, sport, or pastime within the meaning of the proviso
contained in section 18 of the 8 & 9 Vict. ce. 109 (2).

This case appears to have been decided on the ground
that the game was not an unlawful one, and that there
was nothing in the case that was struck at by the Act of
Parliament; but the true test appears to be whether the
deposit was in the nature of a wager or of a subscription
or contribution to a prize to be awarded to the winner of
any lawful game, sport, pastime, or exercise. And _ this

() Marrvyat v. Broderick, 2M. & ys $29.
W. 369. See also Brown v. Over- (x) Batty \. Marriott, 5 C. B.
bury, 25 L. J., Ex. 169. 818.

(v) Emory v. Richards, 14 M. &
STAKEHOLDERS.

has been so held by the Court of Appeal in the comparatively
recent case of Diggle v. Higgs (y), overruling Batty v.
Marriott (2), on very similar facts. The law on the subject
being very clearly laid down in the following judgment of
Lord Cairns, L.C. :—

“The first question which we must ask ourselves is, was
this contract a wager ? It seems to me beyond a doubt that
it was a wager ; it was a wager between two men for a walk-
ing match. They agreed to walk at the Higginshaw
Grounds for 2007. a-side; it is not the less a wager because
the money was deposited with the defendant as stakeholder.
‘When the wager was decided, the winner would be paid the
200/. deposited by the loser and receive back his own 2007.
Now upon that, what is the construction of section 18 of 8 &
9 Vict. c. 109? Is a contract of this kind excepted by the
proviso? Westart with this, that the contract was clearly
a wager, and was within the first part of the section. But
the section says all contracts and agreements, whether by
parol or in writing, by way of gaming or wagering, shall be
null and void; and then there is a proviso which follows
upon an intervening sentence in these words—‘ And no suit
shall be brought or maintained in any court of law or equity
for recovering any sum of money or valuable thing alleged
to have been won upon any wager, or which shall have been
deposited in the hands of any person to abide the event on
which any wager shall have been made.’ Then comes the
proviso on which this question mainly rests—‘ Provided
always, that this enactment shall not be deemed to apply
to any subscription or contribution, or agreement to subseribe
or contribute, for or towards any plate, prize or sum of money
to be awarded to the winner or winners of any lawful game,
sport, pastime, or exercise.’

“Tt is clear that there may be in scores of forms ‘sub-
scriptions or contributions’ towards a plate or prize with-
out there being any wager, and I cannot read this proviso,
which has a natural and intelligible meaning, in a different
way, and one which would have the effect of neutralizing
the enactment. The Legislature, I think, never intended
to say that there should be no action brought to recover a
sum of money which shall have been deposited in the hands

(y) 2 Ex. D. 422; 46 L. J., Ex. 342; 49L. J., P.C. 49; 42 L. T.,
721; 37 L. T., N. 8.27; 25W.R. N. 8. 103; 28 W. R. 479, where
777. Reversing the decision of  Diggle v. Higgs was opproved.
Huddleston, B.,25 W. R. 607. And (2) 5 C. LB. 818.
see Trimble v. Hill, 5 App. Cas.

37

Judgment of
Lord Cairns,

=
378

RACING, STAKEHOLDERS AND STEWARDS.

of any person to abide the event on which any wager shall
have been made, and yet that if the wager is in the form
of a subscription or contribution the winner may recover it.
I read the proviso thus—‘ Provided that so long as there is
a subscription which is not a wager, the second part of the
section shall not apply to it.’ There is no authority in
favour of the view of the defendant, except Batty v. Mar-
riott (a), and if that authority is to be followed, it cannot
be denied it is a very strong authority for the defendant.
What the Court had in their minds in that case was the
question whether the game was a lawful or an unlawful
game, and having come to the conclusion that it was a
lawful game, they were of opinion that there was nothing
in the case which was struck at by the Act of Parliament,
and that the Act was only intended to strike at unlawful
games. That view seems to me to be erroneous, and I
think that the Court overlooked the first part of the section,
which applies to all contracts, lawful or unlawful, by way
of gaming or wagering. When Batson v. Newman (b)
came before this Court, although there was a certain
degree of difference between that case and Batty v. Mar-
riott (a), yet it is obvious that Batty v. Marriott did not
meet with approval. I cannot follow that case. I there-
fore think that, although there was a deposit of money, the
contract in this case was a wager, and that all the con-
sequences which are imposed by section 18 on contracts by
way of wagering follow.

“ Then it is said that this is an action by a party to the
contract, and that he has revoked the authority given to
the defendant to pay over the money, on the ground that
the contract is void, and that section 18 has taken away his
right to maintain an action under that part of the section
which says no suit shall be brought for recovermg money
which shall have been deposited in the hands of any person
to abide the event on which any wager shall have been
made. On that I must observe that in Hampden v.
TValsh (c) the Queen’s Bench Division appeared to have
been of opinion that an action under similar circumstances
could be maintained; and in Batty v. Marriott (d), the
objection was not taken. Be that as it may, I am of
opinion that that objection cannot be maintamed. The

(a) 5 C. B. 818. Q. B. 238; 33 L. T., N. S. 852; 24
(0) 1 C. P. D.573; 25 W. RB. W. RB. 607.
85—C. A. (@) 5G. B. 818.

() 1 Q. B.D. 189; 45 L. J.,
STAKEHOLDERS.

section amounts to this: All contracts by way of gaming
and wagering are null and void; and then, dealing with
those contracts, it says that no action shall be brought
with respect to them; that is to say, all gaming contracts
are void, and the winner of the game or wager shall not
maintain a suit against his antagonist or the stakeholder.
This construction makes one member of the section in
unison with the other. What legal right there may be to
recover back money paid under a contract that is void, the
statute leaves it untouched. The decision of the learned
Judge was wrong, and I think that judgment ought to be
entered for the plaintiff.”

Transactions of this nature are not affected by the
Gaming Act, 1892 (55 Vict. c. 9), s. 1, as to which see
ante, p. 370, it having been held that money deposited by
A. with B. as stakeholder to abide the result of a foot race
between A. and a third party was not money paid under or
in respect of a wagering contract within the meaning of the
Act, and therefore that A., having demanded the deposit
back from B. before it had been paid over by him to the
third party, was entitled to maintain an action against B.
for its recovery (e); Wright, J., saying—‘ The expression
‘money paid by him’ does not appear properly to apply to
a revocable deposit. And it seems difficult to disregard the
consideration that a different construction would tend
directly and almost necessarily to defeat the very object of
the Act, by preventing a revocation of the deposit, and so
giving to the winner of the wager a practical certainty of
being paid his bet, which advantage he did not previously
possess” (7).

If two parties enter into an illegal or void contract, and
money is paid upon it by one to the other, or to a stake-
holder, it may be recovered back before the execution of
the contract, but not afterwards(g); unless, if paid to a
stakeholder, the stakeholder has paid it over contrary tu
notice given to him by one of the parties not to do so (/).

A person who has staked his money on an illegal or
void transaction, and wishes to recover it, should do some
act to put an end to the affair. And he should demand

(e) O'Sullivan vy. Thomas, [1895] 14 M. & W. 712; Varney v. Hick-
1Q. B. 698; 64 L. J., Q. B. 3983 = man, 5 C. B. 281. See also Bone v.
72 L. T.,N. S. 285; 43 W.R. 269. Ekless, 5 H. & N. 925.

(f) [1895] 1 Q. B. at p. 701. (h) Hastelow v. Jackson, 8 B. &

(g) Hastelow v. Jackson, 8 B. & C. OC. 226; Bone v. Ehless, 5 H. & N.
226; and see Mearing v. Hellings, 925.

379

Right to
recover not
affected by
Gaming Act,
1892.

Recovery of
money paid

on an illegal
contract.

What the
party should
do.
380

Demand
before the
money is
paid over.

Bringing an
action not
sufficient.

RACING, STAKEHOLDERS AND STEWARDS.

back his deposit before the illegal or void transaction has
taken place (7), and the money has reached the other party’s
hands (7), because, if he does not, he permits the stakeholder
to dispose of it (A).

It was held in the case of Hastelow v. Jackson (1) that
where the event in such case has been decided, but before
the money has been paid over, and one party expresses his
dissent from the payment, he may recover it from the
stakeholder. For although the event has happened, yet
the contract is not completely executed until the money
has been paid over, and therefore the party may retract at
any time before that has been done. Some doubt, in-
deed, has been thrown upon this case, Mr. Baron Alderson,
in Mearing v. Hellings (m), saying of it, “I accede to its
authority, though I think it a very strong decision. It
does not convince me. It overcomes me.” And Pollock,
C.B., in the same case, said: ‘‘ With respect to the case of
Hastelow v. Jackson, I forbear saying anything about it at
present ; it is binding upon us until reviewed by a Court of
Error. If the same question arose before me, I should
certainly advise a bill of exceptions.”” And, in the case of
Mf‘ Elwaine v. Mercer (n), Hastelow v. Jackson was held by
the Irish Court of Common Pleas to be irreconcilable with
the law as established by 8 & 9 Vict. c. 109, s. 18. But
it has never been expressly overruled, and indeed with
these exceptions it has been treated uniformly, both from
the Bench and by text-writers, as an authority (0).

If it be pleaded to an action, for money had and received,
that the money was staked on an illegal game, the plaintiff
must show in answer that he demanded back the stake
before it was paid over, the mere bringing an action before
payment over not being a sutficient demand (p).

(i) Martin vy. Hewson, 10 Ex. 737.
(7) Hastelow v. Jackson, 8 B.& C.
1, 226; Bone v. Ekless,5 H. & N.
oD.
(k) See Gatty v. Field, 9 Q. B. 440.

(1) Hastelow v. Jackson, 8 B. & C.
221,227. And see Hampden v. Walsh,
1 Q. B. D.189; 46 L. J., Q. B.
238; 33 L. T.,N. 8. 852; 24 W.
R. 607; Diggle v. Higgs, 2 Ex. D.
422; 46 L. J., Ex. 721; 37 L. T.,
N. 8. 27; 25 W. R. 777—C. A.

(m) Mearing v. Hellings, 14 M. &
W. 712.

(rn) M'Elweaine vy. Mercer, 9 Tr.
C. L. R. 13. Lhe judgment in this

2
ae

case appears to be founded upon a
misconception of the principle which
rules the English decisions and of
the facts in the case of Hastelow v.
Jackson.

(0) Per Bramwell, B., Bone v-
Ekless, 5 H. & N. 928. Per Cock-
burn, C.J., Hampden v. Walsh, 1
Q. B.D. 193; 45 L.J., Q. B. 238;
33 L. T., N.S. 852; 24 W. R. 607;
Diggle v. Higgs, 2 Ex. D. 422; 46
L. J., Ex. 721; 37 L. T., N.S. 27;
25 W. R. 777—C. A. See also
Selw. N. P. 12th ed. p. 97, and 2 Sm.
L. C. 9th ed. p. 573.

(p) Gatiy v. Field, 9Q. B. 431.
STAKEHOLDERS,

But although the contract be illegal or void, yet if the
event happens, and the money is paid over by the stake-
holder without dispute, there is a cc.uplete execution of
the contract, and the money cannot be reclaimed (q).

If a person pays his entrance money to the clerk of the
course bond fide and without any attempt to impose upon
the other subscribers, and then finds his horse disqualified,
he may recover his stake (r).

But the owner cannot recover his own stake after the
race, if before the race he Anew that his horse was dis-
qualified. Thus where the conditions of a race were that
the horses were not to be thorough-bred, nor to have
started against thorough-bred horses, nor to have run for a
plate, the plaintiff started his mare Funny, and she came in
first, but the clerk of the course refused to pay the stakes, as
it appeared that under the name of Flashy Moll she had
started against thorough-bred horses, run for plates, and had
won many races. Upon this the plaintiff brought an action
to recover back his own entrance money. Ilowever, Mr.
Baron Vaughan said to the jury, “It will be for you to
say whether the plaintiff has been guilty of an attempt to
impose upon the other subscribers to the race by a misrepre-
sentation of his mare; for if so, he will not be entitled to
recover back any share of the stake. If the plaintiff Anew
of the disqualification of his mare the law will not assist him
in the recovery of the deposit.” A verdict was found for
the defendant (r).

A stakeholder should pay the stakes to the winner or his
agent. For where the holder of a ticket in a Derby lottery
sold it to the plaintiff before the race, and the horse named
in it was ultimately declared the winner, it was held that,
even supposing the lottery were legal, the plaintiff could
not sue the stakeholder, in an action for money had and
received, for the amount to which the holder was by the
conditions of the lottery entitled. Because a ticket of
this sort could not be negotiable like a promissory note,
and parties could not, by agreement among themselves
simply, make a transfer of such a ticket, so as to give the
assignee a right of action(s). But now, by section 25, sub-
section 6 of the Judicature Act, 1873 (36 & 87 Vict. c. 66),
the owner of any debt or other chose in action may assign

(q) Hastelow v. Jackson,8 B.&C.  G. 5.

221, 226. (s) Jones v. Carter, 16L. J., Q. B.
(r) Weller v. Deakins,2 C. & P. 96.

618; Goldsmith y. Martin, 4 M. &

381

Where he
money is
paid over
without
dispute.

Where a
horse is
disqualified.

Where owner
knows the dis-
qualification.

Proper party
to receive the
stakes.
Under what
circumstances
winner may
maintain an
action.

A cricket
match.

A wrestling
match.

Loser may
recover his
stake where
there has
been fraud.

RACING, STAKEHOLDERS AND STEWARDS.

the same to a third person absolutely, and place such person
in the position he himself was in at the time of the transfer,
and with the same legal and equitable rights.

The actual winner may maintain an action against a
stakeholder for all moneys actually in his hands, and
against the party who has agreed to subscribe or contribute
to the stakes, where it has not been paid up, and this how-
ever great the amount may be; provided that the game is
lawful and that the transaction is not in the nature of a
wager. But it is a good answer to an action for money
had and received, that the money was deposited in the
hands of the defendant to abide the event on which a wager
was made, and was claimed by the plaintiff as the winner
of the wager, and that he did not repudiate the wager, or
demand back his money before the event thereof, and had
never repudiated the wager, or claimed the money on any
ground than as winner of the wager, and that no part of
the money was a subscription or contribution, or due on any
agreement to subscribe or contribute towards any plate, prize
or sum of money to be awarded to the winner or winners of
any lawful game, sport, pastime, or exercise (¢).

Where five shillings a head had been staked by the
eleven players on each side in a cricket match, an action
was tried, and the winners recovered the stake from the
stakeholder (w).

But Lord Tenterden refused to try an action to recover
back a deposit on a wrestling match (x).

Where fraud has been practised the Icser of a race may
recover his stake from the stakeholder, and produce the
agreement without a stamp. Jn the following case the
plaimtiff entered into a written agreement with a third
party to race their horses upon certain terms, and he de-
posited the amount of his stake with the defendant. The
race was run and the plaintifi’s horse was beaten ; but he
afterwards discovered that the whole transaction was a con-
cocted fraud. After notice had been given not to pay over
the amount, an action was brought to recover the stakes,
and it was held by the Court of Exchequer, that the written
instrument, although unstamped, was properly admitted in
evidence in proof of the fraud (y).

(t) Savage v. Madder, 36 L. J., BR. 130.

Ex. 78; 16 L. T., N. 8. 600; 16 (x) Kennedy v. Gad, 3 C. & P.
W. R. 910. And see Diggle v. 376.
Higgs, 2 Ex. D. 422; 46 L. J., Ex. sol? Holmes vy. Sixsmith, 7 Ex.

721; 37 L. T., N. 8. 27.
(uw) Walpole y. Saunders, 7 D. &
STAKEHOLDERS.

But if a person once affirms the contract by claiming the
stake, he cannot afterwards turn round and claim a return
of his money on the ground of the agreement being void by
reason of fraud (z).

Where, however, the stakes have been paid over to a
fraudulent winner, they may even then be recovered from
him in an action by the stakeholder. Thus a bitch called
Emily Deans was entered for the “ Great Open Puppy
Stakes” in Northumberland. The stakes were run for and
a bitch described as Emily Deans won them, and the money
was paid over by the secretary to the defendant. It was
subsequently ascertained that the bitch which had run was
not Emily Deans, but one called Miami. An action was
brought by the secretary, who was also stakeholder, to
recover the stakes from the defendant. It was submitted by
the counsel for the defendant that the plaintiff was not the
proper person to bring the action, and also that, Miami being
im every way qualified in point of age to run for the stakes,
there was no fraud committed. But Mr. Baron Martin
was of opinion that Emily Deans being the animal entered
for the match, the defendant had no more right to substitute
another dog in her place, than a person entering a hunter
for a sweepstakes had to run a racehorse instead. A verdict
was found for the plaintiff, and a rule for a new trial was
refused by the Court (a).

A sum of money deposited with stakeholders, to abide the
result of a wager, which sum was repaid by them on the
death of the party depositing to the administratrix, was held
not to pass under the words “I give all my moneys, house-
hold furniture,” &c. &c., because this sum of money, being
in the hands of stakeholders, could not be said, after being
so deposited, to have been in the possession or power of the
testator at any subsequent moment of his existence (0).

Stewards.

The stewards are generally the proper parties to decide
all disputes in a race, and all matters which, according to the
conditions of the race, are to be referred to them. In order
to their award being a satisfactory one, they should hear
both sides and all join in making it; or if one make an

(z) See per Pollock, C.B., Holmes
y. Sixsmith, 7 Ex. 808.

(a) Emerson v. Dickson, before
Mr. Baron Martin, Durham Spr.

Ass. March 4, 1853.
(b) Manning v. Purcell, 24 L. T.
317.

383

How he may
waive his
claim.

Where a
stakeholder
may recover
from the
winner.

Money in the
hand of
stakeholder
does not pass
as ‘‘ his
moneys”
under the
depositor’s
will.

Their duties.
384 RACING, STAKEHOLDERS AND STEWARDS.

award for all, the disputing parties, and probably also the
clerk of the course or stakeholder, should expressly submit
themselves to his authority; though it would appear that
without a strict adherence to this procedure their award
might bea legal one(c). The judgment of the stewards
should, if possible, be obtained; and recourse should not
be had to legal proceedings, unless it can be shown that it
is no longer practicable to get judgment from the stewards (d).
But if the stewards are unable or incompetent to determine
it, the case must go to a jury, and the stakes in the mean-
time must remain in the hands of the clerk of the course
where he is the stakeholder. The law as to the decision of
stewards is fully laid down in the following cases :—

Disputes to There was a sweepstakes at Newport Pagnell races for
baddies by horses not thorough-bred. Before the race was run, the

plaintiff, who was owner of a horse afterwards second in
the race, gave notice to the defendant, who was clerk of the
course, that a horse belonging to one Shaw, which after-
wards came in first for the races was thorough-bred, and
therefore disqualified to start. The rule of the races was,
that all disputes were to be settled by the stewards A. and
B., whose decision was to be final; and B. had agreed to
aequiesce In whatever A. did as steward. Neither of the
stewards were present, and on A. being referred to, he sub-
mitted the question to the Jockey Club, who refused to
entertain it, on the ground that it was a mere question of
fact, and referred it back to the decision of the stewards.
A, afterwards wrote a letter to the plaintiff, saying he con-
sidered him entitled to the stakes; but no proof was given
that the first horse was thorough-bred.

Award should It was decided that the letter was no authority, but that

r made by there ought to have been an express award by both stewards ;

ee or to make an award by A. binding, there ought to be clear
proof that both the disputing parties, and probably also the
clerk of the course, submitted to his authority. And Mr.
Baron Parke said:—

Custody of “The stakes, therefore, remain in the defendant’s hands

stakesin the — until it be determined by due course of law who is winner;

TEAMS, that is, by the stewards, if they are competent to determine
it, if not, by a jury. The plaintiff may now submit the
case to the stewards if they are competent to entertain it ;
if not, he may bring an action and show himself the winner,

(c) See post, p. 385. (d) Brown v. Overbury, 25 L. J.,
Ex. 169.
STEWARDS.

by showing that Shaw’s horse was thorough-bred and that
his own was not” (e).

The decision of the stewards is not invalidated by the
fact of one of them being interested in the decision, inas-
much as it does not appear to be in the contemplation of
the parties, that they should be excluded on that ground,
nor are they arbitrators in the strict legal sense (/), the
intention of the parties being to constitute a tribunal for
the termination of any dispute without litigation of any
kind either by arbitration or action, and therefore the
principle of law as to interested judges is not applicable
to them.

Thus in the case of Ellis v. Hopper (g), where a steeple-
chase was run according to certain rules and conditions,
one of which was that all disputes should be settled by the
stewards, whose decision was to be final, it was held that
the fact that one of the stewards joined in the award, where
the winning or not of his own horse was in question, did not
render the award void. And Bramwell, B., said in his
judgment, “If in the betting code no such implied condition
exist, that the appointed arbitrators or judges shall cease to
be empowered to act, if one of them becomes interested in
the event; the only remaining question is, is there a general
proposition of law, that whenever a matter is referred to one
or several persons his or their powers shall cease, if one
of them becomes interested in the event? I know of no
such rule. When parties agree to refer a matter, they
may, if they please, put in a condition to that effect ; but if
they do not, why should the law make such a condition for
them.”

It appears to be at present undecided whether, on one of
the stewards becoming disqualified, the tribunal would still
be in its integrity (2). But it has been held that a de-
cision made by two of the stewards, three having been
appointed, was valid and binding, although it was made in
the absence of the third steward, and although he dissented
from that decision (?).

In the case of Parr v. Winteringham (i), Lord Campbell,
C.J., thus defined the position of stewards :—‘If stewards

(e) Marryat v. Broderick, 2M. & (
W. 369. 1025; 28 L. J., Ex. 1.

f) Ellis v. Hopper, 4 Jur., (h) Ibid.
N. S. 1025; 28 L. J., Ex.1; Parr (i) Parr vy. Winteringham, 5 Jur.
v. Winteringham, 28 L. J., Q. B. N.S. 787; 28 L. J., Q. B. 128.
123.

QO. cc

g) Ellis v. Hopper, 4 Jur.,N. 8.
55

Legal position
ot stewards.

Decision not
necessarily
invalidated
by one of
them being
interested.

Decision

of two out

of three
stewards held
binding.

Stewards
differ from
legal arbi-
trators.
3886

Steward’s
decision
need not
be formal.

RACING, STAKEHOLDERS AND STEWARDS.

were in the position of arbitrators, they would have to meet
together, to deliberate together, and to give a joint judg-
ment. But they are judges of a peculiar character, and to
avoid the technicality of a legal proceeding, it is imtended
that each should give a final judgment, and not that they
should give a joint judgment. Accordingly it is not
necessary that they should meet together and make a joint
decision. And it may be stated as a general principle,
that if that decision 1s a fair and honest one, it will be
upheld by the Courts of Law ”’ (y).

Where the printed conditions of a steeplechase con-
tained the following (amongst other) stipulations: “ Vo
groom or professional jockey will be allowed to vide,” and
‘all disputes and other matters shall be decided by the
steward, whose decision shall be final, and who shall have
the power of appointing an umpire:”’ the plaintiff who had
a horse to run, which he intended should be ridden by one
Walker, was informed by order of the steward, before the
day of the race, that the steward considered Walker as a
professional jockey, and that the horse, if ridden by him,
would be no horse in the race. On the day of the race,
Walker appeared in the field, mounted and prepared to
ride the plaintiff’s horse, when the steward intimated to
the plaintiff and others near him that his horse would be
no horse in the race, as Walker had been forbidden to ride.
Notwithstanding this intimation, Walker rode the plaintif’s
horse, and came in first. On the following day the steward
pronounced the second horse to be the winner and entitled
to the stakes. The plaintiff then brought an action against
the defendant, who was secretary to the race committee,
and holder of the stakes. A verdict was found for the
plaintiff, reserving leave to the defendant to enter a nonsuit.
The Court of Exchequer made the rule absolute to enter a
nonsuit, and Chief Baron Pollock said, “The question is,
whether the steward has decided this point, and whether
his decision is good in point of law. I am of opinion that
he has come to a decision, and that that decision is
sufficient.” And Mr. Baron Alderson said, “It would be
strange, if in a case like this a formal and solemn decision
was necessary; if, for instance, it were requisite that a
point should be regularly raised before the steward, that
witnesses should be examined upon oath, and the same

(y) Parr v. Winteringham, 5 Jur., N. 8. 787; 28 L.J., Q. B. 123.
STEWARDS.

strictness required as in arbitrations under the sanction of a
Court of Justice” (k).

The rule, in short, is, that in cases of this kind, no mere
errors of judgment in the decision, or in the conduct of the
inquiry, will defeat the award of the stewards if they have
im fact intended to do right. This rule is further illustrated
by the judgment of the Judicial Committee of the Privy
Council in Dines v. Wolfe(2). In that case the plaintiif
agreed with one Doyle to run a match between their re-
spective horses for 500/. a side, weight for age, under the
Australian Jockey Club rules, and under the auspices of
the club; the stakes to be deposited with the defendant
fourteen days previous to the race. According to an un-
written rule of the Jockey Club, the stakes ought to have
been deposited with the treasurer of the club. But the
plaintiff refused to allow this to be done. Doyle’s horse
won; and after the race the plaintiff wrote to the stewards
protesting against his being declared the winner, on the
ground that he was only weighted as a four-year-old
whereas he was in fact five years old. According to the
rules of the Jockey Club, in the event of the age or quali-
fication of a horse being objected to, either before or after
the running, the stewards should call for such evidence as
they may require, and their decision is to be final. The
stewards held an inquiry in the manner prescribed by the
rules, and after the meeting had been several times
adjourned the plaintiff asked for a further adjournment
which was refused, and Doyle’s horse was declared to be
the winner, the stakes being subsequently paid over to him
by the defendant. The plaintiff then sued the latter for
the stakes, contending that the rules of the Jockey Club
had not been complied with as the stakes had not been
deposited with the treasurer, and the race was therefore
not run under the agreement, and that the stewards had
not fairly decided the case, having refused his application
for a further adjournment. The jury found a verdict for
the plaintiff, whereupon the defendant moved for and
obtained an order for a new trial, which order was affirmed
on appeal, the Judicial Committee being of opinion that
the plaintiff could not maintain his objection that the race
had not been run under the agreement as he had refused to

(k) Benbow v. Jones, 14M. & W.  P.C., N.S. 882; 20 L. T., N.S.
193: 14 L. J., Ex. 267. 251.
(2) L. R., 2 P. C. 280; 3 Moore

cc 2

387
388

Stewards’
decision on
construction
otf rules.

Provisional
decision.

RACING, STAKEHOLDERS AND STEWARDS.

allow the stakes to be paid over to the treasurer, and by
writing to the stewards had acknowledged that it was run
under the rules; and further, that the stewards having
acted fairly, and being the judges as to what evidence
should satisfy their minds, their decision could not be
impeached.

At a steeplechase, weight for age—run under certain
rules, one of which made the decision of the stewards final,
and another required that upon entering a horse his age
should be stated—the defendant’s horse was entered as
“aged;” he came in first, but was objected to as being
a “six-year-old,” and not an “aged” horse; the stewards
decided that, though, as a matter of fact, the horse was a
“six-year-old,” and not “aged,” the misstatement in the
entry was immaterial, inasmuch as the weight imposed on
a “six-year-old”? and on an “aged” horse was the same.
The Insh Court of Exchequer Chamber held, that the
stewards had not exceeded their jurisdiction, that there
being no question as to the dona fides of their judgment,
their decision on the construction of the rules, as well as on
the matters of fact, was final and conclusive between the
parties, and accordingly that the defendant’s horse was
entitled to the stakes (m).

Where by the conditions of a race the decision of the
stewards in all cases of dispute is to be final, they need not
decide on the whole case at once, but may come to a pro-
visional decision on the facts before them, and subsequently
reopen the question and decide on the whole case, and such
ultimate decision will be final. Thus, in Smith v. Little-
dale (n), the plaintiff’s horse ran in a race subject to the
following conditions, viz. :—that he had been fairly hunted
with certain hounds during the season; that he had been
a certain time in the possession of his owner; and the
stewards were to disqualify any horse that they did not
consider to have been hunted in a genuine bond fide
manner, and their decision in all cases of dispute to be
final. The horse came in first, and the owner claimed the
stakes. On an objection that the horse had not been
fairly hunted, the stewards at once went into the question
in the weighing-room, and held that he had, leaving the
question whether the plaintiff was owner within the condi-
tions for future decision. They subsequently decided that

(m) Newcomen v. Lynch, 10Tr.R., Ir. R., C. L. 1.

C. L. 248—Ex. Ch. Reversing the (n) 165 W. R. 69—C. P.
decision of the Queen’s Bench, 9
STEWARDS.

he was such owner, but at the same time disqualified the
horse as not being fairly hunted because he had not been
ridden by his owner. In an action for the stakes, the
jury found that the decision in the weighing-room was in
favour of the horse subject to the question of ownership,
and that the stewards afterwards decided that question in
favour of the plaintiff, and at the same time disqualified
the horse. Cockburn, C.J., told the jury that in his
opinion the stewards could not make a conditional decision,
and that the decision in the weighing-room was a provi-
sional decision only, and directed the verdict.to be entered
for the defendant, leaving it to the plaintiff to move to
enter it for him, if on the findings of the jury on the facts
of the case the Court should think him entitled to it. The
plaintiff's counsel moved accordingly, and contended that
the decision of the stewards in the weighing-room was con-
clusive, and that as no further evidence was brought before
them, they could not reopen it. Erle, C.J., said, “I am
of opinion that there should be no rule: the action is
against a stakeholder ; the race was run, and the stewards
decided that the stakes should not be given to the plaintiff,
but to another person. The race was subject to this con-
dition: ‘The stewards will strictly carry out the object
of this meeting by disqualifying any horse they do not
consider to have been hunted in a genuine and bond fide
manner, and their decision in all cases of dispute will be
final.” That makes them absolute judges of fact and law
and they have ultimately decided against the plaintiff's
horse. The decision in the weighing-room was an inchoate
decision only. A stakeholder is not to be made liable to
an action where there is a stipulation in such terms as
these.” Willes and Keating, JJ., concurred, and the rule
was therefore discharged.

The stewards of a race are the proper parties to appoint
the judge, who may decide which is the winning horse ;
and if they are paid for their trouble, or enter upon their
duties, they are liable to an action for not doing so (0).

But a person gratuitously undertaking the duties of
steward of a horse race, is not liable for negligent non-
feasance in not appointing a judge, unless it appears that
he commenced to perform the duties of the office (p).

(0) See the principle stated in (p) Balfe v. West, 22 L. J.,
Smith’s Merc. Law, 112, and cited ©. P. 175; 1 C. L. Rep., C. P.
by Jervis, C.J., Balfe v. West, 22 225.

L. J., O. P. 176.

389

Appointment
of a judge.

Negligence in
not appointing
one.
390

Decision of
the umpire or
committee,

RACING, STAKEHOLDERS AND STEWARDS.

Where by the conditions of a race the decision of the
umpire or committee is to be final, the parties are bound
by it in the same way as in the case of stewards. Thus
where a match was made between two mares under the
following agreement :—

“ Pratr and Evans.

“Thomas Holyoake, Esq., Umpire.

“Frederick Pratt bets Thomas Evans 1002. to 2647. p.p.
[play or pay], Mr. Ryley’s brown mare, [late his property]
beats Thomas Evans’s mare, Matilda, four miles across a
country, thirteen stone each. To come off 1st March, 1841.
The umpire’s decision to be final.

(Signed) “Tuomas Evans,
“ FREDERICK Pratt.”

The match came off on the day appointed. Mr. Ryley’s
brown mare came in first; but Mr. Holyoake, the umpire,
decided that the other mare was the winner, in consequence
of the former having passed through a gateway instead
of going over the hedge, which the rules of steeplechas-
ing seem to require. It was held that it was not com-
petent to either party to dispute the decision of the umpire,
as they had constituted him judge of the law and the
fact (¢).

Also where a race was run, subject to certain con-
ditions, one of which was, that the riders should be “ gen-
tlemen farmers, or tradesmen, being persons never having
ridden as regular jockeys or paid riders.” Another, that
the decision of the committee on any dispute that might
arise should be final. At the trial it appeared that the
rider of the plaintiff's horse, which came first to the win-
ning chair, had been in the habit of riding at races,
sometimes receiving his expenses, but never having been paid

Jor his services, and that the plaintifi’s right to the stakes

was disputed on the ground of an alleged cross. Imme-
diately after the race, the jockey was required to attend
before the committee, but omitted to do so. The com-
mittee therefore entered upon the inquiry, and ultimately
came to the resolution, that unless the plaintiff would pro-
duce evidence before them on the following morning to
induce them to alter their minds, their decision was that

(q) Evans v. Pratt, 4 Scott, N. R. 378.
STEWARDS.

the second horse was the winner. This was communicated
to the plaintiff, but no evidence was offered, and nothing
more was done.

Mr, Justice Coleridge told the jury, that they must con-
sider, first, whether the committee had, before the com-
mencement of the action, decided the dispute; secondly,
whether or not the jockey was a rider qualified within the
language of the issue ; thirdly, whether he unfairly crossed.
And he further told them, that if the committee had
decided the matter, their decision would be conclusive, but
that it must have been come to before action brought, as
to which the evidence was not satisfactory; and, in his
opinion, the jockey’s disqualification had not been estab-
lished. The jury returned a verdict for the plaintiff, and
the Court of Common Pleas discharged a rule for a new
trial (7).

But where the judge or referee takes upon himself to
act as such notwithstanding the non-performance of a
condition precedent to his jurisdiction, his decision will of
course not be final, and the party against whom his award
is made will be entitled to recover the amount of his deposit.
The case of Carr v. Martinson (s) is an example of an
occurrence of this nature. There the plaintiff and H.
agreed to run a match between their respective horses,
on a specified day, with a specified judge and starter.
The stakes were deposited with the defendant, to be paid
to the winner according to the decision of the judge. On
the day fixed the plaintiff and H. were present, but the
starter did not appear, and H. refused to run the race.
The plaintiff’s horse was trotted over the course, and the
judge declared the plaintiff the winner, but the defendant
refused to hand over the stakes to him, whereupon he
brought an action for their recovery ; and it was held that
as the race was not run according to the conditions agreed
upon, it must be taken not to have been run at all, and
therefore the judge’s jurisdiction never arose and his
decision was invalid.

A similar point arose in Sadler v. Smith (t). In that
case the plaintiff and K., watermen on the Thames, agreed
to row a right-away sculler’s race, according to the recognised
rules of boat-racing, the decision of the referee to be final.

(r) Walmsley v. Matthews, 3 (t) 10B.&8.17; L. R.,5Q.B.
Scott, N. R. 584. 40; 39 L. J., Q. B. 17; 21 L. T.,

(s) 1 E. & B. 456; 28L.J.,Q.B. N.S. 502; 18 W. R. 148—Ex. Ch.
126; 7 W. R. 293.

391

When juris-
diction has
not attached.
392

Terms of a
race.

Rules of a
regatta.

Stewards, &c.

cannot waive
any condition
of a race.

RACING, STAKEHOLDERS AND STEWARDS.

In sculling races between professional watermen it is the
custom for the competitors to start themselves, but if either
should make default in starting, and any question should
in consequence arise, it would be in the power of the
referee to determine that question. The plaintiff and K.
attempted, unsuccessfully, to start, and K. rowed to the
referee, who ordered him to tell the plaintiff that if he
would not start K. must start without him. K. rowed
over the course without the plaintiff, and the referee
awarded the race and stakes to him, without hearing any
evidence or taking any steps to ascertain if his order had
been communicated to the plaintiff, and without having any
means of acquiring the knowledge of the fact. The plaintiff
brought an action to recover his deposit. The jury found
that the order of the referee was not communicated to him,
and that he had not a fair opportunity of starting. It was
held that the jurisdiction of the referee never attached, and
therefore his decision was not final, and the plaintiff was
entitled to recover.

All the parties whose horses are entered must of course
adhere to the terms of the race, such as the weights, pay-
ment of entrance money, &c., because no single condition
can be waived without the unanimous consent of the sub-
scribers (2).

According to the rules by which a regatta was regu-
lated, and which had been signed by all the parties taking
part in the race, the prize, which was a boat, was not to
be delivered up, unless it was fairly won to the satisfaction
of the managers. In consequence of some fouling the
managers were dissatisfied, and called upon both parties
to stop the race. One of the parties, however, continued
to row on alone, until he reached the goal; and then,
assisted by his friends, he took possession of the prize boat,
and deposited it in the defendant’s yard. An action of
trover was brought against the defendant by the managers
to recover the boat, and Lord Denman being of opinion
that the evidence of conversion on the part of the defen-
dant was very strong, the jury found a verdict for the
plaintiff (x).

Neither the stewards, clerk of the course, nor any other
persons, can waive or vary the published conditions of any
race without the consent of all the subscribers. Thus

(u) Weller v. Deakins, 20. & P. (a) Cheeseman v. Hart, before
618. And see Lacey v. Umbers, 2 Lord Denman, C.J., Guildhall, Dec.
C.M. & R. 116. 23, 1847.
STEWARDS.

where an action for money had and received was brought
against the defendant, who was clerk of the cuurse at the
Mostyn Hunt Races, for the amount of stakes held by him
as the stakeholder on a race won by a mare of the plaintiff’s
called Funny: the following was the printed advertisement
of the race :—‘ A sweepstakes of ten guineas each, five
forfeit, for horses not thorough-bred that have never started
against a thorough-bred one or run for a plate; that have
been regularly hunted with Sir Thomas Mostyn’s, the Duke
of Beaufort’s or the Duke of Grafton’s hounds, up to the
day of naming, and are bond fide the property of the sub-
cribers, &c. One guinea entrance. Horses to be named
by Mr. E. Deakins on or before the 22nd of March.” The
plaintiff paid his share of the stake, and his mare came in
first; but it appeared that the mare had been only once
hunted with the hounds of Sir Thomas Mostyn. <A wit-
ness proved that about half-an-hour before the race was
run, the plaintiff said to the defendant, that he hoped he
was satisfied about the mare’s hunting, and that the
defendant replied, “ Quite so: you run your mare, we
have arranged that.” But Mr. Baron Vaughan said, “It
must be shown that the clerk of the course had authority
from the subscribers to waive the conditions of the race.
It is not enough for the clerk of the course to say, half-
an-hour before the running, that he would waive a par-
ticular condition. I take it that there was a printed pro-
posal to run horses on certain terms; what the clerk said
after this was published cannot have the effect of waiving
any of those terms without all the other subscribers are
proved to have consented to it” (y).

Where a match had been run between two horses under
the Australian Jockey Club rules but the stakes had at the
request of the loser, and with the consent of the winner,
been deposited with his nominee instead of with the
treasurer of the Jockey Club, as required by the rules, it
was held that the loser could not maintain an objection
that the rules of the club had not been complied with (z).

Where, in an action against a stakeholder for the
recovery of the stakes deposited with him to abide the
event of a horse-race, it appeared that an objection to the
plaintiff as the winner of the race, on the ground of his
being on the unpaid forfeit list, had not been lodged within

(y) Weller v Deakins,2 C. & P. 280; 8 Moore, P. C., N. 8. 382;
618. 20 L. T., N. 8. 251.

(2) Dines v. Wolfe, L. R., 2 P.C.

393

Waiver by
consent of
parties.

Effect of
acquiescence
in breach of
rules.
394

Rules of the
Jockey Club.

Arbitration
of the Jockey
Club.

Sporting
phraseology.

RACING, STAKEHOLDERS AND STEWARDS.

the time limited by one of the rules under which the race
was run, but the plaintiff had omitted to raise this point at
the inquiry held by the committee, whereupon the objection
was sustained; it was held that he could not do so in the
action, as he had, by his conduct, waived the benefit of the
rule in question (a).

On those courses which are governed by the rules of the
Jockey Club (8), the stakeholders, stewards, and all persons
concerned in the races, must regulate their proceedings
accordingly, unless there be a waiver of any of these rules
by mutual consent. But the Jockey Club will not enter-
tain any mere matter of fact submitted to them, but will
send it back for the decision of the stewards (c) ; and the
Courts will receive the rules of the Jockey Club as evidence
with respect to the laws of racing (d).

A submission to the arbitration of the Jockey Club of a
disputed account, amounts to an agreement which cannot
be impeached under the acts against gaming, if any part of
the accounts between the parties is legal.

Thus, the plaintiff in 1833 gave a post obit security on
his expectancy in a certain fund, payable on the death of
his father to W., in consideration of certain gaming debts.
He subsequently won a larger sum of W. by bets on horse
races, and both parties having submitted to the arbitration
of the Jockey Club in 1837, the steward decided that one
debt should be set off against the other, and the security
given up. And on the plaintiff filing his bill to have the
security delivered up to be cancelled, the Master of the
Rolls received in evidence the entry of the transaction in
the books of the Jockey Club, and also the testimony of
Mr. Greville, the steward (e).

The Courts will not take judicial notice of sporting
phraseology, but they will admit evidence to explain it.
Thus, where a match was made between two mares
“across a country,” it was held that although the Court
could not take judicial notice of such phrase, yet evidence
was admissible to show that in sporting phraseology it
means over all obstructions, and prohibits the rider from
availing himself of an open gate (f). And in another case

(a) Evans v. Sumner, 35 J. P. d) Greville v. Chapman, 5 Q. B.
761. 745.
(4) For the Rules of the Jockey e) Hawker v. Wood, 1W.R. 316
Club, see Racing Calendar for RR.)
1896. J) Evans y. Pratt, 4 Scott, N. R.
(c) Marryat v. Broderick, 2 M. & 378.
W. 369.

oS

d

—a~ FS

ao
STEWARDS.

evidence was admitted to show that the letters “P. P.”
signified that the parties were bound either to run the
match or forfeit the stakes ().

So, also, where the race was what is termed a “selling”
race, evidence was admitted to explain that it meant a
race for which horses were entered upon the terms that
the horse which won the race was to be sold by auction to
the highest bidder, but the owner was only to receive the
price put upon the horse when it was entered, the balance
going to the racing fund. That horses thus entered were
weighted according to the amount put upon them, those of
the highest price carrying the greatest weight ().

Where by the terms of a race the riders were to be
persons who had never ridden as regular jockeys or paid
riders, it was held by Chief Justice Tindal, in the Court of
Common Pleas, that a regular jockey or paid rider is a
person who follows the business of a jockey or rider as a
means of gaining a livelihood. But that a person who had
sometimes received his expenses, but had never been paid
for his services, was clearly not disqualified (7).

Where by the terms of a race the horse must have been
regularly hunted with some particular hounds, it is not
necessary to qualify a horse to run that he should have
been hunted every day the hounds went out. It is suffi-
cient to show that the horse has been hunted frequently,
but one day’s hunting is decidedly not enough (4).

Where a match is made for a particular meeting which
depends upon weather or other circumstances, of course the
match must be run when such meeting actually takes
place. Thus where an agreement in writing was made
between the plaintiff and the defendant to run a match
with greyhounds “on the Wednesday during the New-
market Meeting, 1841, P. P.” It appeared that the
Newmarket meetings were meetings of a coursing club ;
that the power of appointing and adjourning them was
vested in the stewards, who were governed by printed
rules; and that the practice of the club was to hold the
February meetings on the first or second Tuesday in that
month, weather permitting; and if at the meeting the
ground proved unfit for coursing, their practice was to

(g) Daintree v. Hutchinson, 10 M. (i) Walmesley v. Matthews, 3
& W. 89. Scott, N. R. 584.
(h) See Hadland v. Price, Cor. (k) Weller v. Deakins, 2 C. & P.

Lord Campbell, C.J.,Q. B. Sittings, 618.
Nov. 29, 1858.

395

A ‘selling’
race.

A professional
jockey.

Horse regu-
larly hunted
with hounds.

Match for
a particular
meeting.
396 RACING, STAKEHOLDERS AND STEWARDS.

adjourn to a given day, or the first open day. At the
time when the contract in question was made, the day
appointed for the February meeting was Tuesday the
2nd of February, 1841. On Wednesday the 3rd, the
plaintiff and defendant were there, but frost prevented the
meeting from being then held, and it was adjourned to
Tuesday the 9th, weather permitting. The frost, however,
continued beyond that day, and the meeting was ultimately
held on Tuesday the 16th. On Wednesday the 17th the
plaintiff came with his dog ready to run the match, but
defendant did not appear.

It was held, first, that the construction of the contract
was, that the match should be run on the Wednesday during
the February mecting, whenever it should be actually
held, and that the plaintiff performed his part of the con-
tract by being ready to run on Wednesday the 17th;
secondly, that the plaintiff was not bound to produce the
printed rules, but that it was enough for him to show that
the February meeting was then actually held; and also
that evidence was admissible to show what the parties
intended by the letters ““P. P.” subjoined to the agree-

ment (/).
Ordering off The steward of a race-course can order any person off the
a grand stand or inclosure, though he has paid for his ticket ;

but in such case the steward or his agent had better tender
the price of the ticket to the party at the time of giving him
notice to quit the stand or inclosure to which the ticket
has given him admittance. But the person who sold it
to him should return the money, for otherwise the holder
of it would probably have a right of action against the
person from whom he had purchased it, or against those
who had authorized its being issued and sold; such action
however would be founded on a breach of contract, and not
on his having acquired by the ticket any right to go on the
stand or inclosure in spite of the owner of the soil. The
authority of the steward was confirmed in the following case,
where the question was fully discussed before the Court of
Exchequer.

In 1843, Lord Eglinton being steward of Doncaster
races, tickets were sold in Doncaster at one guinea each,
which were understood to entitle the holders to admission
into the grand stand and its inclosure, and to remain there
during the races. They were issued with Lord Eglinton’s

(2) Daintree v. Hutchinson, 10 M. & W. 87, 89.
STEWARDS.

privity, but they were not sealed nor signed by him. It
appeared that the plaintiff, Wood, having purchased one of
these tickets, came to the stand during the races of the
year 1843, and was there in the inclosure while the races
were going on; and while there, and during the races, the
defendant, by the order of Lord Eglinton, desired him to
depart, and gave him notice that if he did not go away
force would be used to turn him out. The plaintiff had in
no respect misconducted himself; and it was admitted that,
if he had not been required to depart, his coming upon and
remaining in the inclosure would have been an act justified
by his purchase of the ticket. The plaintiff refused to go,
and thereupon the defendant, by order of Lord Eglinton,
forced him out, using no unnecessary violence. It was
held, that even assuming the ticket to have been sold to the
plaintiff under the sanction of Lord Eglinton, still it was
lawful for Lord Eglinton, without returning the guinea, and
without assigning any reason for what he did, to order the
plaintiff to quit the inclosure; and that if the jury were
satisfied that notice was given to the plaintiff requiring him
to quit the ground, and that before he was forcibly removed
by the defendant a reasonable time had elapsed, during which
he might conveniently have gone away, then the plaintiff
was not, at the time of the removal, on the place in question
by the eave and licence of Lord Eglinton.

On this direction a verdict was found for the defendant,
and a rule nis? having afterwards been obtained by the
plaintiff to have this verdict set aside on the ground of mis-
direction, the Court of Exchequer, after hearing both sides
and taking time to consider, in an elaborate judgment
delivered by Mr. Baron Alderson, discharged the rule (m).

In ordering goods or work for the purpose of races, the
stewards should expressly inform the parties who it is that
intends to be answerable for the payment, otherwise they
will be personally liable. In the case of Storr v. Scott (n),
it appeared that the defendant, being one of the stewards of
Lichtield races, at the request of the clerk of the course
chose a gold cup at Storr and Mortimer’s, who brought an
action against him for the price; it being, however, shown
that they had given credit for it to the clerk of the course,
and had accordingly sent him an invoice, a verdict was found
for the defendant.

(m) Wood v. Leadbitter, 13 M. & (x) 6 C. & P. 241
W. 838.

Ordering
goods.

397
Wagers at
common law.

Wager on
the life of
Napoleon.

Wager on the
result of an
election.

Betting on
a race no
longer illegal.

Bets not
recoverable.

CHAPTER III.

WAGERS.

ALL wagers which were not against the principles of
morality, public decency or sound policy, were held good
at common law; and a wager or bet was defined to be
a contract entered into without colour or fraud, between
two or more persons, for a good consideration, and upon
mutual promises to pay a stipulated sum of money, or to
deliver some other thing to each other, according as some
prefixed and equally uncertain contingency should happen
within the terms upon which the contract was made (a).

A wager by which A. received from B. one hundred
guineas on the 31st of May, 1802, in consideration of
paying him a guinea a day so long as Napoleon Bona-
parte (then first Consul of the French Republic) should
live, was held to be void on the grounds of immorality and
impolicy. This bet arose out of a conversation upon the
probability of his coming to a violent death by assassination
or otherwise (4).

So also a wager made, before the poll began, between
two voters with respect to the event of an election of a
member to serve in Parliament, was held to be void, as such
contract 1s corrupt in the eye of the law and against the
fundamental principles of the constitution (c).

Until the Act of Victoria (d), wagers above a certain
amount were declared to be illegal by statute, now,
however, the illegality no longer exists, and therefore
betting on a race may be practised to any extent without
any penalty being incurred.

But by the above-mentioned Act (e) it is provided, that
“all contracts or agreements, whether by parol or in writ-
ing, by way of gaming or wagering, shall be nui and void ;
and no suit shall be brought or maintained in any Court of
Law or Equity for recovering any sum of money or valuable

(a) Jones v. Randall, Cowp. 39; 2 c) Allen v. Hearn, 1 T. R. 56;
Hawk. ¢. 92. 1K. R. 149.

(b) Gilbert v. Sykes, 16 East, 150; (d2) 8 & 9 Vict. v. 109, s. 15.
14 R. R. 327. (e) Ibid. 8. 18,
WAGERS.

thing alleged to be won upon any wager, or which shall
have been deposited in the hands of any person to abide
the event on which any wager shall have been made; ”
but this enactment is not “to apply to any subscription
or contribution, or agreement to subscribe or contribute, for
or toward any plate, prize, or sum of money, to be awarded
to the winner or winners of any lawful game, sport,
pastime, or exercise ” (e).

However, a party depositing a sum of money witha
stakeholder, by way of wager and not as a stake (f), may
recover his money back, if he give notice to the stake-
holder, before the event comes off, that he will break off
the bet, and require him to return his money. In a case
tried before Chief Justice Wilde at nisi prius in the Court
of Common Pleas, Westminster, Nov. 30th, 1846, it ap-
peared that a match in harness had been made between one
Isaacs and the plaintiff, and on the event of this race they
had made a wager of 20/7. a-side, which each party had
deposited with the defendant. Previous to the race, the
plaintiff gave notice to the defendant that he should “ break
off” the be¢, and he should require back his money. The
defendant, however, did not return it, but paid the whole
deposit to the other party after he had walked over the
course; an action was then brought to recover the 20/.
which had been deposited by the plaintiff.

At the trial, it was contended on the part of the defen-
dant that, under 8 & 9 Vict. c. 109, s. 18, the action was
not maintainable. But the learned Judge overruled the
objection, and held that the statute was not meant to apply
to a case like the present, in which the party depositing the
money had given notice to the stakeholder to pay him it
back before the time had arrived for the wager to be de-
cided. And the jury, on the evidence, found a verdict for
the plaintiff (9).

A rule nist for a new trial, on the ground of misdirec-
tion, was afterwards obtained in the Court of Common Pleas,
and in discharging the rule Mr. Justice Maule said:
“Looking at the whole section (4), critically and gram-
matically, I am of opinion that 1t does not apply to any
action like this, where a party seeks to recover his deposit
from a stakeholder upon a repudiation of the wager.

(e) 8 & 9 Vict. c. 109, s. 18. 1846; 5 C. B. 281.
(f) Distinction taken in Connor (h) 8 & 9 Vict. c, 109, s. 18,
v. Quick, cited 2 W. Bla. 708. Appendix.

(g) Varney v. Hickman Nov. 30,

399

Deposit
recoverable
before the
event.

Decision of
the Court of
Common
Pleas.
400

What is a
wagering
contract.

WAGERS.

This cannot be considered as an action brought for re-
covering a sum of money alleged to be won upon a
wager ; nor do I think it 1s an action brought to recover
a sum deposited in the hands of the defendant to abide the
event of a wager. That must necessarily mean an action
to be sustained on the ground of the existence and the
determination of the wager. Here the money is not
claimed on that ground. Quite the reverse. The plaintiff
insists that the sum he seeks to recover is money which
belongs tv him, and which the defendant has no right to
keep, and which he is under no legal or moral obligation
to pay to anybody else. As soon as the defendant received
notice from the plaintiff that he declined to abide by the
wager, the money ceased to be money deposited in the
hands of the former to abide the event, and became money
of the plaintiff’s m his hands, without any good reason for
detaining it. Upon these grounds I think this point
ought to be determined in favour of the plaintiff. It was
said im the course of the argument that the general scope
of the Act is to prohibit gaming and wagering ; and that
this object would be best attained by holding moneys depo-
sited with stakeholders not to be recoverable in this way.
But I see no pretence for construing the Act to mean
anything so penal without express words.’’ And in this
opinion Cresswell and V. Williams, JJ., agreed (7).

To adopt the language of Hawkins, J., in delivering his
considered judgment in Carlill v. Carbolic Smoke Bail Co. (k).
“Tt is not easy to define with precision what amounts to a
wagering contract, nor the narrow line of demarcation
which separates a wagering from an ordinary contract, but
according to my view, a wagering contract is one by which
two persons, professing to hold opposite views touching
the issue of a future uncertain event, mutually agree that,
dependent upon the determination of that event, one
shall win from the other, and that other shall pay or hand
over to him, a sum of money or other stake; neither of
the contracting parties having any other interest in that
contract than the sum or stake he will so win or lose, there
being no other real consideration for the making of such
contract by either of the parties. Itis essential to a wagering
contract, that each party may under it either win or lose,

(i) Varney v. Hickman, 5 C. B. (7) [1892] 2 Q. B. 484, at pp. 490,
282. And see further, ante, pp. 376 491, aflirmed in C. A., [1893] 1Q. B.
—380, ‘‘ Stakeholders.” 256.
WAGERS.

whether he will win or lose being dependent on the issue
of the event, and, therefore, remaining uncertain until that
issue 1s known. If either of the parties may win but
cannot lose, or may lose, but cannot win, it is not a wagering
contract.

It is also essential that there should be mutuality in the
contract. For instance, if the evidence of the contract is
such as to make the intentions of the parties material in
the consideration of the question, whether it is a wagering
one or not, and those intentions are at variance, those of
one party being such as if agreed in by the other would
make the contract a wagering one, whilst those of the other
would prevent it from becoming so, this want of mutuality
would destroy the wagering element of the contract, and
leave it enforceable at law as an ordinary one: see Gfrize-
ewood v. Blane (1), Thacker v. Hardy (m), Blaxton v. Pye (n).
No better illustration can be given of a purely wagering
contract than a bet on a horse-race. A. backs Tortoise
with B. for 1002. to win the Derby. B. lays ten to one
against him—that is, 1000 to 100. How the event will
turn out is uncertain until the race is over. Until then
A. may win 10002. or he may lose 100/.; B. may win 100/.
or he may lose 1000/.; but each must be a winner or a
loser on the event. Under the wager neither has any
interest except in the money he may lose or win by it.
True it is that one or both of the parties may have an
interest in the property of the horse; but that interest is
altogether apart from the bet, and each party is in agree-
ment with the other as to the nature and intention of his
engagement. . . . One other matter ought to be mentioned,
namely, that in construing a contract with a view to deter-
mining whether it is a wagering one or not, the Court will
receive evidence in order to arrive at the substance of it,
and will not confine its attention to the mere words in
which it is expressed, for a wagering contract may be some-
times concealed under the guise of language which, on the
face of it, if words were only to be considered, might con-
stitute a legally enforceable contract.”

The test applicable in some cases to the determination of
the question whether a contract is a wagering contract or
not within the statute, is, whether the price of the sub-
ject-matter is to vary according to the issue of an event

(2) 11 C. B. 526. (n) 2 Wils. 309.
(m) 4Q. B. D. 685.

oO. DD

401

Wager under
guise of sale.
402

Money ad-
vanced with
stipulation.

Rescission of
contract by
tossing.

WAGERS.

totally unconnected with its actual value. Thus in a case
in which the plaintiff and defendant, while conversing as
to some rags, which the plaintiff proposed to sell, and
defendant to buy, disputed as to the price of a former lot
of rags, the plaintiff asserting the price to have been
lower than the defendant asserted it to have been. They
agreed that the question should be referred to M., a spinit
merchant, and that whichever party was wrong, should pay
M. for a gallon of brandy, and that if the plaintiff was
right, the price of the lot now on sale should be 6s. per ewt.,
but, if the defendant was right, it should be 3s. per ewt.
M. decided that the plaintiff was right. The plaintiff
thereupon sent the rags to the defendant, but the defendant
refused to accept them at 6s., offering 5s. An action
having been brought for goods bargained and sold, it was
held by the Court of Queen’s Bench, that this was a wager-
ing contract, which could therefore not be enforced by legal
process, and that it made no difference that there was a real
intention to part with the goods (0).

An agreement for the sale of a horse for 200/. if he
trotted eighteen miles within an hour, within a month, and
for 1s. if he failed to accomplish the task, was held to be
nothing more nor less than a mere wagering contract (p).

If money is advanced upon the security of a deed in
pursuance of a stipulation or agreement between the
plaintiff and defendant, that out of it money lost by the
defendant to the plaintiff on betting transactions should be
paid to the plaintiff, it is a mere colourable loan and evasion
of the statute, and the deed is invalid; butif there be no
such stipulation or agreement, and the plaintiff advance
the money as a loan for the defendant to dispose of as he
pleased, though the plaintiff expected to be paid out of the
money so lent, the deed is valid (q).

In Wilson v. Cole (r), the plaintiff had agreed to take the
defendant’s house, and had paid a deposit of 25/7. After-
wards the defendant offered the plaintiff 257. to be off the
bargain. They then tossed whether the defendant should
pay the plaintiff 507, or 757. The defendant won, and when
he was sued for the 50/ and the 25/. deposit, set up that
the contract of rescission was a wagering one and therefore
void under the statute. The jury found that the deposit was

(0) Rourke v. Short, 6 H. & B. (q) Hill v. Fox, 4 H. & N. 459
904. —KEx. Ch.

(p) Brogden v. Marriott, 3 Bing. (r) 36 L. T., N.S. 702.
N. C. 88.
WAGERS,

not in contemplation of the parties, but that a rescission of
the contract was in fact made; and it was held that the
plaintiff was entitled to recover both the 507. as considera-
tion for the rescission, and also the 25/. deposit.

In a case where the plaintiff and defendant agreed that
the plaintiff should take the defendant’s mare in exchange
for that of the plaintiff; and that the defendant should
give the plaintiff half of the winnings of her first two races,
or, in case she should be sold before then, that the defen-
dant should pay the plaintiff one-third of what she should
have been sold for; it was held by the Irish Court of
Common Pleas, that the above agreement, being one simply
to give an increased price for the mare, upon the occurrence
of a state of facts, which might add to her value, was a
legal contract, and not in the nature of a wager (s).

Where the defendants, the proprietors of a medical pre-
paration called ‘“‘The Carbolic Smoke Ball” issued an
advertisement in which they offered to pay 100/. to any
person who contracted the influenza after having used one
of their smoke balls in a specified manner and for a specified
period, and the plaintiff on the faith of the advertisement
bought one of the balls, and used it in the manner and for the
period specified, but nevertheless contracted the influenza,
it was held that these facts established a contract by the
defendants to pay the plaintiff 100/ in the event which had
happened, and that such contract was neither a wager within
8 & 9 Vict. c. 109, nor a policy within 14 Geo. 3, c. 48,
s. 2, as to which see post, p. 413; and that, therefore, the
plaintiff was entitled to recover (t).

Where an action was brought to recover a sum of money
lost by playing in the ordinary way with two persons at
billiards, the players having staked sums of money on suc-
cessive games ; it was held that such a transaction was not
within the proviso of the 8 & 9 Vict. c. 109, s. 18, masmuch
as the players did not contribute or agree to contribute any
sum to be awarded to the winner (#).

Where the plaintiff and W. deposited each 500/. with the
defendant, on an agreement that if W. on or before the 15th
of March, 1870, proved the convexity or curvature to and
fro of the surface of any canal, river, or lake, by actual

(s) Crofton v. Colgan, 10 Ir.C.L. W. R. 210, affirming the decision of
R. 133. Hawkins, J., [1892] 2 Q. B. 484.
(t) Carlill v. Carbolic Smoke Balt (u) Parsons y. Alexander, 1 Jur.
Co., [1893] 1 Q. B. 256; 62L. J, N.S. 660.
Q. B. 257; 67 L. T., N. S. 837; 41

DD 2

403

Price of
mare to be
increased,
if she won,
by her
winnings.

Offer by
advertisement.
Acceptance.

Billiard
match.

Rotundity
of earth.
404

Trotting

against time.

Agreement

with tipster.

Walking
match.

WAGERS.

measurement and demonstration to the satisfaction of the
defendant, W. would receive the two sums deposited ; but
if W. failed in doing this, the two sums were to be paid to
the plaintiff—it was held that the agreement was a wager,
and consequently null and void within the statute (2).

So where H. and the plaintiff deposited 502. each with
the defendant and entered into a written agreement that the
1007. should be paid to H. if his horse trotted eighteen miles
in an hour, and if not then to the plaintiff; it was held that
the transaction was simply a wager, and did not come within
the proviso in 8 & 9 Vict. c. 109, s. 18, as to contributions
to a prize or sum of money to be awarded to the winner of
any lawful game, sport, pastime or exercise (y).

And a wager under the disguise of a contract to pay a
reward for information will not evade the Act. In Higgin-
son v. Simpson (z), the plaintiff was a tipster, i.e. gave in-
formation as to the probable winners of horse races. Upon
his giving the name of a horse to the defendant as the pro-
bable winner of a certain race, it was agreed between them
that the plaintiff should have 2/. on the horse at 25 to 1,
that is to say, that if the defendant backed the horse and
won, the plaintiff should have 50/. out of his winnings, but
if the horse lost the plaintiff should pay the defendant 21.
The defendant did back the horse and it won, and the
plaintiff thereupon claimed 50/. out of the defendant's
winnings; and it was held that the agreement was void,
and that the 50/. could not be recovered.

It was laid down in the case of Batty v. Marriott (a),
that though there be but two subscribers to a plate, prize
or sum of money to be awarded to the winner of a lawful
game, and those two subscribers the competitors themselves,
yet it is not less a contribution within the exception in the
statute, (8 & 9 Vict. c. 109, s. 18,) if the agreement be, that
the whole sum subscribed shall be paid over to the winner,
and if it be a bond fide subscription or contribution on the
part of those two persons. But what the court had in their
minds in that case was the question whether the game was
a lawful or unlawful game, and having come to the conclu-
sion that it was a lawful game, they were of opinion that

(x) Hampdenv. Walsh, 1Q.B.D. 35 L. J., Ex. 167; 14 L. T., N.S.
1sy; 45 L. J., Q. B. 238; 33L.T., 9 415.
N. 8. 852; 24 W. B. 607. G20 P. D. 76; 46 L. J.
(y) Batson v. Newman, 1C.P.D.  C. P. 192; 36 L. T., N. 8. 17;
573; 25 W.R. 85. And see Brogden 25 W. R. 303.
y. Marriott, 3 Bing. N. C. 88; (a) 5 C. B. 8382.
Coombs vy. Dibble, L. R., 1 Ex. 248;
WAGERS.

there was nothing in the case which was struck at by the
Act of Parliament, and that the Act was only intended to
strike at unlawful games (b). This view has, however,
been held by the Court of Appeal to be erroneous (c) ;
and it has been decided that an agreement to walk a match
for 200/. a-side, the money being deposited with a stake-
holder, is a wager, and null and void under the statute; and
that the deposit of the money is not a subscription or
contribution for a sum of money to be awarded to the winner
of a lawful game within the proviso.

And in a case in which the plaintiff agreed with B. and
others, that a match should be made between a mare, the
property of M., and a mare, the property of the plaintiff,
and that the party nominating the winner should receive
from the others 100/., and that 1007. should be forfeited by
the party making default in causing the mare nominated by
him to run, it was held by the Irish Court of Queen’s Bench
that no action was maintainable upon such an agreement,
inasmuch as it did not come within the proviso of the sec-
tion (¢), which excepts “ any subscription or contribution, or
agreement to subscribe or contribute, for or toward any
plate, prize, or sum of money, to be awarded to the winner
or winners of any lawful game, sport, pastime, or exercise,”’
from the operation of the previous part of the section ;
and that this contract was a mere wager depending upon an
accidental circumstance, and not upon the running of a race (e).

The proviso that the foregoing part of this section shall
not apply to any subscription or contribution, for or towards
any plate, &. to be awarded to the winner or winners of
any lawful game, is not the less applicable where the entire
sum of money subscribed is not awarded to the first horse.
Therefore where the conditions of a race were that a sub-
scription should be made up of the sum of 34. each,
subscribed by the owners of the horses, and a sum of
thirty sovereigns added thereto out of the race fund, out
of which the expenses and a sum of 1/. 10s. were to be
deducted and paid to the treasurer, and 3/. 3s. to the owner
of the second horse, they were held to be good, and satisfied
the requirements of the proviso (/).

(b) See per Lord Cairns, L.C., (d) 8 & 9 Vict. c. 109, s. 18.
Diggle_v. Higgs, 2 Ex. D. 422; (e) Irwin v. Osborne, 5 Ir. C. L.
46 L. J., Ex. 721; 37. T., N.S. RB. 404.

27; 25 W. R. 777—C. A.; and (f) Crofton vy. Colgan, 10 Ir. C. L.
ante, p. 377. 2 R. 133.
(c) Diggle v- Higgs, ubi supra.

Contribution
to person
nominating
winner not
within pro-
viso.

Second horse
may receive
part of the
stakes within
the proviso.
406

Effect of
wagers being
void on note
given in pay-
ment.

WAGERS,

The onus of proving the consideration to be a good one
does not lie with the subsequent holder of a promissory
note given in payment of money lost on a wager, such
wager not being within the statutes to which the 5d & 6
Will. 4, c. 41, is applicable, and being therefore simply
void within 8 & 9 Vict. c. 109, s. 18. Thus in a case (g)
in which a promissory note was given in payment of a bet
(upon the amount of hop duty payable in 1854, which was
not therefore withn 5 & 6 Will. 4, c. 41 (A)), and an
action was brought upon it, it was held that it lay upon
the defendant to prove the absence of consideration for it;
for, though proof that a negotiable instrument was affected
with fraud or illegality in the hands of a previous holder
raises a presumption that he would indorse it away to an
agent without value, and consequently calls on the plaintiff
for proof that he gave value, yet the presumption does
not arise, when the previous holder merely held without
consideration. ‘‘The note was given to secure payment
of a wagering contract, which even before 8 & 9 Vict. c. 109,
the law would not enforce, but it was not illegal, and there
is no penalty attached to such a wager; it is not in viola-
tion of any statute nor of the common law, but is simply
void, so that the consideration was not au illegal considera-
tion, but equivalent in law to no consideration at all” (7).

So where an action was brought to recover the amount
due on two promissory notes given by the defendant to
one B. in respect of certain gambling transactions on the
stock exchange, and indorsed over by B. to the plaintiff
for valuable consideration ; it was held that the plaintiff's
right to recover was not affected by the fact that he had
notice of the notes having been given by the defendant
in respect of such transactions, the consideration for the
notes not being illegal, but falling within the category of
void contracts under the 8 & 9 Vict. c. 109 (’).

In an action brought by the holder for value of a cheque
with notice that it was drawn for the purpose of paying
certain betting losses to the person in whose favour it was
drawn, the defendant was given unconditional leave to

(9) Fitch v. Jones, 5 E. & B. 238;
24 L. J., Q. B. 293.

(2) As to the scope of this Statute,
see post, Chap. IV., and see also the
Statute, Appendix.

(i) Per Lord Campbell, C.J.,
Fitch v. Jones, 5 E. & B. 238, And

see Lynn v. Bell, 10 Ir. R., C. L.
487; Pyke, Ex parte, Lister, In re,
8 Ch. D. 754; 47 L. J., Bk. 100;
a8 L. T., N. 8. 923; 26 W. R. 806
(A) Lilley v. Rankin, 56 L. J.,
Q. B. 248; 55 L. T., N.S. 814.
WAGERS.

defend under Order XIV. r. 1; the Court being of opinion
that as the plaintiff knew that the only consideration for
the cheque was money lost in bets the matter came within
the 8 & 9 Vict. c. 109, s. 18, and that in any case the
plaintiff was entitled to raise this point by way of
defence (xk). Having regard, however, to the decisions in
Fitch v. Jones (1), and Lilley v. Rankin (m), it is appre-
hended that the proper defence in this case would have
been the illegality of the consideration under 5 & 6 Will. 4,
c. 41, as to which see post, Chapter IV.

The Act for the suppression of betting houses (x), which
is treated of in the chapter on Betting Houses and Gaming
Houses (0), has made various important provisions with
respect to betting, and with respect to receiving money,
&c., as the consideration for any assurances, &e., to pay
money, &c.(y)—or as a deposit on any bet, on condition
of paying any money, &c.—‘‘on the happening of any
event or contingency of or relating to a horse race, or any
other race, or any fight, game, sport, or exercise ”’ (7).

The Stock Jobbing Act (7 Geo. 2, c. 8), invalidated all
time bargains in the Public Funds (v), but time bargains
relating to shares (s), or in foreign funds (¢), were held not
to be void either under the Act or at common law. The
Act was repealed in 1860 by the 23 & 24 Vict. c. 28.

Where each party means to break the contract, but to
give the other a remedy against him for the difference of
price, according as the market may rise or fall, it is a
gambling transaction, being a mere bet upon the future
price, and the contract is therefore void under 8 & 9 Vict.
c. 109 (wu).

Thus in a time bargain in shares, if it is understood by
both parties that the shares are never to be delivered into
the hands of the purchaser, it is nothing more than a wager
made between the parties upon the difference of the price
at the time that the supposed purchase is made, and the
price on the settlement day. If the shares rise one party
is to receive, and if they fall he is to be at a loss.

(kk) Hogdman v. O'Neil, 2 Times (r) Oakley v. Rigby, 3 Scott, 194

L. R. 169. (s) Hewitt v. Price, 4 M. & G.
(2) Note (g), supra. 355; Williams v. Trye, 23 L. J.,
(m) Note (4), supra. Ch. 860.

(x) 16 &17 Vict. c. 119, Appendix. (t) Wells v. Porter, 3 Scott, 141.
(0) See Betting Houses and Gam- (u) Grizewood v. Blane, 11 C. B.

ing Houses, post, Chap. V. 540. And see Barry v. Croskey, 2
(p) 16 & 17 Vict. c. 119, 8. 1, J. & H.1; Cooper v. Neil, 27W. RB.

Appendix. 159; Heiman v. Hardie, 12 Ct. of 8.

(q) Ibid. ss. 3, 5. Cas., 4th Series, 406.

The Act for
the suppression
of betting
houses.

The Stock-
Jobbing Act.

Gaming on
the Stock
Exchange.

As in a time
bargain.
408

Action by
jobber against
principal.
Grizewood v.
Blane.

WAGERS.

A real time bargain appears to be of very rare occur-
rence (z), if not entirely unknown (y) on the Stock Exchange.
“‘ Butwhat are called time bargains,” said Lindley, J.in de-
livering judgment in Thacker v. Hardy (s), “ are, in fact, the
result of two distinct and perfectly legal bargains, namely,
first, a bargain to buy or sell; and, secondly, a subsequent
bargain that the first shall not be carried out; and it is
only when the first bargain is entered into upon the under-
standing that it is not to be carried out, that a time bargain,
in the sense of an unenforceable bargain, is entered into.”

A time bargain is not necessarily invalid, as in the case
of a contract to sell next year’s apple crop in a particular
orchard (a), where the parties may be respectively gainers
or losers, according to the happening of a future event, but
one of the essential elements of a wagering contract is
wanting (0).

Grizewood v. Blane (c), affords an instance of a real time
bargain (d). In that case, the declaration alleged a contract
for the sale by the defendant to the plaintiff of railway
shares at a certain price, and a subsequent contract for the
sale by the plaintiff to the defendant of other railway shares
at an advanced price, and an agreement that the two sets
of shares should be set off against each other, and the
differences paid by the defendant to the plaintiff. At the
trial, it appeared that the plaintiff was a stockjobber and
that the defendant had, through his broker, contracted to
sell and to re-purchase the shares mentioned in the declara-
tion ; and that there had been former dealings between the
parties of the same character, no shares passing, but merely
settlements of differences. It was objected on behalf of the
defendant, that, it being evident that the sales were a mere
colour for payment and receipt of differences one way or
the other, the contract was one by way of gaming and
wagering within the meaning of the statute. Jervis, C.J.
left it to the jury to say what was the intention of the
parties at the time of making the contract—whether either
party really meant to purchase or to sell the shares in
question; telling them that if they did not, the contract
was, in his opinion, a gambling transaction and void.

(x) Thacker v. Hardy, 4 Q.B.D. at p. 692—per Bramwell, L.J.

at p. 689—per Lindley, J. (2) Ibid. at p. 696—per Cotton,
(y) Ex parte Grant, 13 Ch. D. at LJ.

p. 671. (c) 11 C. B. 526.
a 4Q. B. D. at p. 689. (@) See Thacker v. Hardy, 4 Q.
@) Thacker v. Hardy,4Q. B.D. B.D. at p. 689—per Lindley, J.
WAGERS.

Upon this the jury found a verdict for the defendant ; and
upon an application for a new trial this direction was held
right and the verdict justifiable by the evidence (¢).

Cooper v. Neil (f), as understood by the jury, afforded
another instance of a real time bargain (g). In that case,
the defendant employed one B., a broker, to enter into
contracts on the Stock Exchange for the purchase of shares.
As B. knew, the defendant did not intend to accept the
shares, but only to receive or pay differences according to
the rise or fall in the market price of the shares. B.
entered into contracts with jobbers for the purchase of
shares in pursuance of the defendant’s instructions; and
upon these contracts, according to the rules of the Stock
Exchange, became personally liable. He afterwards became
insolvent, and the plaintiff, as his trustee, sued upon an
implied contract of indemnity against the claims of the
jobbers. At the trial the jury found that the contracts with
the jobbers were mere time bargains, and judgment was
given for the defendant. This judgment was upheld by
the Queen’s Bench Division, but a new trial was eventually
ordered by the Court of Appeal on the ground that the
verdict was unsatisfactory.

In Byers v. Beattie (h) it was held by the Irish Court of
Exchequer Chamber that a contract between stockbrokers
and their customer that the brokers should, at the customer’s
direction, buy shares and sell them, and that the profits
should belong to the customer, the brokers being personally
liable to him for their payment; and that the losses should
be borne by the customer, the brokers personally, and not
by way of indemnity, receiving them; was a wagering
contract within the meaning of the statute; and that the
fact that the brokers were in either case to receive their
commission and charges would make no difference. At
first sight it is somewhat difficult to reconcile the ruling in
this case with the law as laid down in Thacker v. Hardy (t)
and other more recent cases of a similar nature, but it
should be borne in mind that the judgment turned entirely
on the construction of the contract as set out in the plaint,

(e) Doubts have, however, since been (f) W. N. 1 June, 1878; 27
expressed as to whether the jury W. R. 159.
really understood the nature of the (g) See Thacker v. Hardy, 4 Q.
evidence before them. See Marten B.D. at p. 689—per Lindley, J.
y. Gibbon, 33 L. T., N.S. at p. 563 (hk) 2 Ir. R.C. L. 220; 16 W. R.
—per Bramwell, L.J.; hacker v. 279.
Hardy, 4 Q. B. D. at pp. 695, 696 (i) 4Q. B. D. 685—C. A.
—per Brett and Cotton, L.JJ.

Action by
trustee of
insolvent
broker.
Cooper v.
Neil.

Byers v.
Beattie.

409
410

Action by
broker against
principal.
Thacker v.
Hardy.

WAGERS.

which contained no statement as to where the plaintiffs
were stockbrokers, in what markets, if any, they were to
deal, or what, if any, were the usages of such markets;
the Court being of opinion upon such construction that it
was intended that the defendant should never be liable for
anything but the differences, which would make the
purchases and sales nominal merely so far as the defendant
was concerned.

In Thacker v. Hardy (j), the plaintiff, a broker, was
employed by the defendant to speculate for him on the
Stock Exchange. To the knowledge of the plaintiff the
defendant did not intend to accept the stock bought for
him, or to deliver the stock sold for him, but expected that
the plaintiff would so arrange matters that nothing but
differences should be payable by him. The plaintiff knew
that unless he could arrange matters for the defendant as
the latter expected, the defendant would be unable to meet
the engagements which he might enter into for him,
The plaintiff accordingly entered into contracts on behalf
of the defendant, upon which he became personally liable,
and sued the defendant for indemnity against the ability
incurred by him and for commission as broker. It was
held by the Court of Appeal, affirming the judgment of
Lindley, J., that the employment of the plaintiff by the
defendant was not against public policy, and was not
illegal at common law, and, further, was not in the nature
of a gaming and wagering contract against the provisions of
the 8 & 9 Vict. c. 109, s. 18; Bramwell, L.J. (7/), saying
that assuming the principal to be entitled by the terms
of the bargain, to call on the broker to re-sell the stock, so
that instead of taking and paying for it, the former would
have to pay only the differences that would not intringe
the provisions of the statute, for the principal might take
the stock, and hold it as an investment, and adding: “I
have no doubt that it continually happens that stock which
is bought for a rise is really taken up and held when the
market falls. But the broker might be unable to re-sell, if,
for imstance, he had been ordered to buy shares in an
insolvent bank ; so that the transaction really comes to this,
that the principal is bound either to take or deliver the
stock (as the case may be), but the broker is to endeavour
to relieve the principal from liability by buying or selling

(j) 4 Q. B.D. 685; 48 L. J, 27 WR. 158.
Q. B. 289; 39 L.

89; 39 L. T., N. 8. 595; (i) 4 Q. B. D. at pp. 691, 692.
WAGERS,

again. There is no gaming or wagering in a transaction
of that kind; the broker has no interest in the stock, and
it does not matter to him whether the market rises or
falls; but when a transaction comes within the statute
against gaming and wagering, the result of it does affect
both parties” (4).

The Court having arrived at the conclusion that the
transaction was not a contract by way of gaming and wager-
ing, the broker was entitled to recover on the general prin-
ciple that an agent is entitled to indemnity against all
lawful liabilities incurred by him on behalf of his principal ;
but Lindley, J., went still further, and held, adopting the
opinion expressed by Brett, L.J., in Cooper v. Neil (2), that
even assuming that the contract was a wagering one, the
statute only affected the contract which made the wager (m),
and that the plaintiff having incurred a lawful liability at
the request, and on behalf of the defendant, was therefore
entitled to be indemnified (x). Butsince The Gaming Act,
1892, as to which see post, p. 418, it is apprehended that
the broker would be precluded from recovering under such
circumstances, as the implied promise by the principal to pay
the broker would be rendered null and void by that Act.

ALI

Where the defendant instructed the plaintiffs, who were Sale of

stockbrokers, to sell the prospective dividends on certain
railway stock, which they accordingly sold to certain jobbers,
calculating the dividend at a certain rate per cent; but the
dividend, when declared, amounted to a higher rate than
that which the plaintiffs had calculated, and according to
the usage of the Stock Exchange, they therefore paid the
jobbers the difference; it was held that they were entitled
to recover this difference from the defendant, as the con-
tract was no more a wager than, as suggested by Black-
burn, J., the purchase from a fisherman of the next haul
of his net at a fixed price would be, and was not prohibited
by the existing rules of the Stock Exchange (0).

(4) These remarks, as well as
those of Cotton, L.J., as to the
essence of a gaming contract, 4
Q. B. D. at p. 695, were recently
adopted by Lord Herschell, L.C., in
delivering the judgment of the J. C.
in the very similar case of Forget v.
Ostigny, [i62e] App. Cas. 318.

(i) 27 W. R.149.

(m) 4 Q. B. D. 687.

(x) Thacker v. Hardy, 4 Q. B. D.
at pp. 687, 688. See also Knight v.

Cambers, 15 C. B. 562; 24 L. J.,
C. P. 121; Jesopp \. Lutwyche, 10
Exch. 614; 24 L. J., Ex. 65;
Rosewarnev. Billing, 15 C. B., N.8.
316; 33 L.J., C. P. 55; Ex parte
Rogers, 15 Ch. D. 207; 43 L. T.,
N. 8. 163; 29 W. R. 29—C. A.;
Read vy. Anderson, 18 Q. B. D. 779
—C. A.; MMollison v. Noltir, 16 Ct.
of S. Cas., 4th Series, 350.

(0) Martenv. Gibbon, 33 L. T., N.
S. 561; 24 W. R. 87—C. A. Since

prospective
dividends.
412

Transactions
with outside
brokers.

Money lent
for speculation.

WAGERS.

Real time bargains are of more frequent occurrence in
transactions with outside brokers, than they are with autho-
rized brokers on the Stock Exchange. The advertisements
or circulars by which outside brokers seek to attract the
public to deal with them sometimes stipulate that all
bargains shall be settled by payment of differences, and
there can be no doubt about the wagering nature of a con-
tract entered into upon such a basis, as it is nothing more
than a bet upon the future price of the stock or shares
dealt with (p), though sometimes it is sought to veil the
true nature of the transaction by the use of so-called forms
of application (g). But where a written contract was
entered into by an outside jobber with his customer, that
bond fide purchases and sales of stocks and shares should
be made between them ; and no subsequent bargain was
in fact come to between them that the purchases and sales
should not be carried out, and merely the differences paid,
but it was contemplated that this might be so; and in the
actual dealing no delivery of stock took place, although
the jobber did offer to deliver some; it was held that
although the parties might have contemplated that as a
whole, there would be a mere payment of differences
between them, yet, inasmuch as the actual contracts entered
into involved liability for the actual delivery of the stock
dealt with, they were not wagering contracts within the
meaning of the statute (7).

In Fuller v. Perryman (s), the plaintiff sought to recover
two sums of 50/. each. The defendant was an outside broker
and as such had acted for the plaintiff. The defendant told
the plaintiff that he was going to speculate in certain stock,
and said that if the plaintiff would advance him two sums
of 50/. he would get the benefit of the speculation if it was
successful, and if not the defendant would bear the loss and
repay the plaintiff the 1007 The plaintiff advanced the
money, but the speculation turned out unsuccessful, and the
defendant refused to repay the 1007. on the ground that the
speculation was a gambling transaction and his promise to
repay, therefore, void under the Gaming Act, 1892, as to

this decision, however, the Stock LL. R. 174.

Exchange rule has been amended, (r) Universal Stock Exchange v-

and is now prohibitive. See R. 64, Stevens, 66 L. T.,N.S.612; 40 W. RB.

Stutfield’s Rules and Usages of the 494—Romer, J. See also Shaw v.

Stock Exchange, 2nd ed. at p. 39. Caledonian Rail. Co.,17 Ct. of 8. Cas.
(p) Reggio v. Steven, 4 Times 4th Series, 466; Lowenfeld y. Howat,
. R. 326. 19 Ct. of 8. Cas., 4th Series, 128.
(q) Egleton v. Barclay, 11 Times (s) 11 Times L. R. 350—C. A.
WAGERS. 413

which see post, p. 418. In the absence of any evidence that
the defendant entered into contracts that there should be no
delivery of the stock, and that differences only should be
paid, the Court assumed that he entered into proper
contracts, and held that the plaintiff was therefore entitled
to recover (¢).

Where securities are deposited as cover in respect of Recovery
wagering transactions in stocks and shares, the depositor a ee
can maintain an action for their return. Such a deposit is ts
not a deposit to abide the event upon which a wager has
been made, as the statute applies only to the deposit of
that which becomes the property of the winner of the wager
the moment that the event shows that he has won (uw).

It is enacted by 14 Geo. 3, ¢. 48,s. 1, that “No insurance Statute
shall be made by any person or persons, bodies politic or against
corporate, on the life or lives of any person or persons, or nolicies e
on any other event or events whatsoever, wherein the
person or persons for whose use, benefit, or on whose account
such policy or policies shall be made, shall have no interest,
or by way of gaming or wagering ; and that every assurance
made, contrary to the true intent and meaning hereof, shall
be nudZ and void to all intents and purposes whatsoever.”

An agreement in the form of a policy upon the sex of a What held
person is a wagering policy within the meaning of this ™ chong
statute (x). So is an engagement, in consideration of forty *?°"
guineas, to pay 1002 in case Brazilian shares should be
done at a certain sum on a certain day, subscribed by several
persons, each for themselves (y); but a promise to pur-
chasers of a preventive of influenza to give 100/. to any
purchaser not finding the prevention effectual is not (z).

Where a wager was made that war would be declared Wager as to
against France within three months, it was held by the ‘edlaration
Courts of Queen’s Bench and Common Pleas, although the ;
Court of Exchequer was of a contrary opinion, that the
wager was void under 14 Geo. 3,¢.48. No judgment.
however, was ever given on the case (a).

Where money was advanced upon an assignment of an What was

expected devise, with a condition that if there should not peld not to
(¢) Fuller v. Perryman, 11 Times —C. A. policy.

L. R. 350—C. A. (x) Roebuck v. Hammerton, Cowp.
(u) Strachan v. Universal Stock 737; Da Costa v. Jones, Ibid. 729.

Exchange, [1895] 2 Q. B. 329; 14 (y) Paterson v. Powell, 9 Bing.

R. 223; 73 L. T., N. 8S. 6; 48 320.

W. R. 611—C. A. As to the re- (2) Carlill v. Carbolie Smoke Ball
covery of money deposited as cover, Co., [1893] 1 Q. B. 256—C. A. —
see Strachan v. Universal Stock Ex- (a) See Foster v. Thackeray, cited

change (No. 2), [1895] 2 Q. B.697 in ddlen v. Hearn, 1T. RB. 957, n.
414

Paying a bet.

Giving a
security.

Where a note
or bill is a
gift.

WAGERS.

be such a devise, then that the money should be repaid
without interest ; it was held not to be a policy on the life
of the testator within 14 Geo. 3, c. 48 (0).

As no wager can be tried in any Court of Law or
Equity, the winner cannot compel payment from the
loser (c) ; and therefore if the money be paid, it is in fact
giving a gratuity.

If a note, bill, or mortgage be taken as a security for
money, either won by betting on the sides and hands of per-
sons gaming, or knowingly lent for the purpose of such
betting, or where such betting is going on, the consideration
is legal under 5 & 6 Will. 4, c. 41. But any other
security under seal would appear to be good, where the
gaming is not illegal (d).

A bond given to persons to whom the obligor has lost
bets on horse-races, which he is unable to pay, In order to
prevent them from taking the steps which, under the com-
ventional code established among betting men, they are
entitled to take, and which would be followed by conse-
quences involving the obligor in considerable pecuniary
loss, is valid (e).

If a note or bill be given in payment of any bet,
except such as has been made on the sides or hands of
persons gaming, it is in reality a gift, and its value will
depend upon circumstances. Thus where a bill had been
given gratuitously, Lord Abinger, C.B.,in delivering the
judgment of the Court of Exchequer, in aston v.
Pratchett (7), said, “If a man give money as a gratuity,
it cannot be recovered back, because the act is complete ;
yet a man who promises to give money cannot be sued on
such promise; and if so, I do not see how a promise in
writing not under seal can have any binding effect. The
law makes no difference between such a promise and a
verbal one. There is the same distinction as to a bill of
exchange. If a party gives to another a negotiable instru-
ment on which other parties are liable, the man who makes
the gift cannot recover the bill back, and the man to whom
the bill is given may recover against the other parties on

(b) Cook vy. Field, 15 Q. B. 471; ae L. J., Ch. 428; 22 L. T.,
475. N.S. 258; 18 W. R.512.

(c) 8 & 9 Vict. c. 109, s. 18. And (f) Easton v. Pratchett, 1 C. M.
see per Lord Cairns, L.C., Diggle & R. 798; 3 Dowl. 472; 1 Gale,
vy. Higgs, 2 Ex. D. 422; 46 L. J., 83; and see the same case in error,
Ex. 721; 37 L. T., N. 8. 27. 20. M. & R. 542; 4 Dowl. 549;

(d) See Gaming, post, Chap. IV. 1 Gale, 250; 6 C. & P. 736.

(e) Bubb v. Yelverton, L. R. 9 Eq.
WAGERS.

the bill; but it is avery different question whether the
giver binds himself by the indorsement so as to make him-
self liable thereupon to the person to whom he gives it.
There is no decision that he does, and there is a strong
authority the other way; and the prevailing opinion in the
profession is, that a parol promise of a gift, whether verbal
or in writing, will not be binding.”

A race-course is a mart where stolen or lost notes may
be readily disposed of, and therefore a party should always
use due caution in taking a bank note from a stranger,
either in payment of a bet, or in change out of payment
for bets lost, and the larger the amount of the note the
greater the care required.

A bond fide holder of a stopped note, or other negotiable
security, that is to say, a person who has given value for it,
and whe has had no notice at the time that the party from
whom he takes it has no title, is entitled to recover upon it,
even though he may at the time have had the means of
knowledge of that fact, of which means he neglected to avail
himself. Thus, where a money-changer at Paris, twelve
months after he had received notice of a robbery of bank-
notes at Liverpool, took one of the stolen notes (for 5007.)
at Paris, giving cash for it, less the current rate of ex-
change, from a stranger, whom he merely required to pro-
duce his passport, and write his name on the back of the
note, it was held that the circumstance of his forgetting or
omitting to look for the notice was no evidence of mala
Jides (9).

In Goodman v. Harvey (h), the Court of Queen’s Bench
held that there must be actual sala fides to invalidate the
right of the holder of a bill or bank note, received from a
person having no title to it, And also that the existence
even of gross negligence was unimportant, except so far as
it might be evidence of mala fides (h).

This decision was confirmed by the case of Uther v.
Rich (i), where the Court of Queen’s Bench held that mada
fides in the holder of a negotiable security, if relied on,
must be distinctly alleged. And that the only proper
way of implicating him in an alleged fraud, is by averring
that he had motice of it, and that an allegation that he

(g) Raphael v. Bank of England, 1882, ss. 29, 30, 90.
17 C. B. 161. (i) Uther v. Rich, 10 A. & E.
(h) Goodman vy. Harvey,4A.&E. 784. And see Arboin v. Anderson,
870. See also Billsof Exchange Act, 1Q. B. 498.

Taking a
stolen bank
note in pay-
ment.

Taking
stopped note
in payment.

What invali-
dates the
holder’s
right.

Mala fides
must be
distinctly
proved.
416

Money
borrowed to
pay bets.

A betting
partner.

WAGERS,

was not a bond fide holder, is not equivalent to an aver-
ment of such notice.

Formerly money borrowed for the express purpose of
settling losses on a race to the amount of 10/. or upwards
could not be recovered by the lender, although he bore no
part in the transaction (4). This was so held on the
ground of illegality; but as that no longer exists, it would
appear that a person borrowing money for the purpose of
paying his betting losses on a race, whatever their amount
may be, is as completely indebted to the lender as if he
had borrowed it for any other purpose whatsoever. For
in a case where an I. O. U. afforded primdé facie evidence
of a debt, and an injunction was sought to restrain the
party from suing on it, on the ground that a great part
of the consideration was money lent for gambling pur-
poses; on its appearing that the transaction had taken
place in a foreign country, where such games were not illegal,
the injunction was refused (J).

The 8 & 9 Vict. c 109, s. 18, does not make gaming
contracts ilegal, but null and void, and therefore it would
be contrary to public morality to lay down that a party
who has received money lost in a wager should by pleading
this statute escape paying over the fair share to his
partner (mm). Where, therefore, the plaintiff and A. had
jomtly made bets on a horse-race, and A. had received the
winnings, and given the plaintiff a bill accepted by the
defendant, who was no party to the betting, for his share;
it was held that the plaintiff was not precluded by the
statute from suing the defendant on the bill (m).

Beeston v. Beeston (n) was a case of a very similar nature
to that last cited. The plaintiff had paid money to the
defendant to be employed by the latter, with certain money
of his own in betting on horse-races, the plaintiff to receive
a certain proportion of the winnings. The defendant so
employed the money and won, giving the plaintiff a cheque
for his share of the winnings. The cheque having been
dishonoured, the plaintiff brought his action on it. The
defendant set up a plea of gaming, contending that the

(k) Mf Kinnell vy. Robinson, 3 M. 92
& W. 434; Cannan v. Bryce, 3 B. &
Ald. 179; 22 R. R. 342. 46
(1) Quarrier v. Colsten, 1 Turn. &
Ph. 147. And see Pyke, Ex parte, 23
Lister, In re, 8 Ch. D. 7543 47 96.
L. J., Bk. 100; 38 L. T., N.S.

; 26 W. R. 806—C. A.
m) Johnson v. Lansley, 12 0. B.

STAD

2) 1 Ex. D.18; 45 L. J., Ex.
; 33 L. T.,N. 8.700; 24 W.R.
WAGERS.

transaction was void under 8 & 9 Vict. c. 109, s. 18, and
that the cheque was an illegal security under 5 & 6 Will. 4,
c. 41. But this plea was held bad, as the agreement was
not one by way of gaming and wagering within the meaning
of the former statute, neither was the consideration for the
cheque illegal under the latter; Pollock, B., remarking
that the statutes relied on applied only to contracts and
securities between the parties to the wager.

So where A. and B. had entered into an agreement of
partnership, under which they were to share the profits
upon bets to be made by B. upon horse-races, and A. had
advanced money for the purposes of the partnership, it
was held that, as B. had received money on account of A.,
and the betting part of the transaction was purely collateral,
A. was entitled to have an account taken of what was due
to him under the agreement (0).

Independently of any question of partnership, a princi-
pal who employs an agent for a commission to make bets
for him is entitled to recover from such agent any sums
received by him on account of such bets, as the contract
between the parties is not a contract by way of gaming and
wagering within the meaning of the 8 & 9 Vict. c. 109,
s. 18(p). In actions against agents for money received
under such circumstances the defence of gaming and wager-
ing is frequently raised, it being contended that the bet
was made by the plaintiff with the defendant, and not by
the defendant with a third person as agent for the plaintiff.
The defendant, will, however, be estopped from denying
that he acted as the piaintiff’s agent in the transaction if it be
proved that the contract between the parties was ostensibly
one of agency, and that he from time to time rendered
accounts to the plaintiff, showing bets to have been made,
and money received or paid on his behalf(g). In such
cases the plaintiff, must, of course, prove the agreement
between himself and the agent, that the latter made the
bets on his behalf, and that he received the winnings. But
the plaintiff need not, in every case, in order to show that
the bets were made as agent and not principal, prove with

(0) Harvey v. Hart,(1894]W.N. L T.,N.8. 600; 16 W. R. 910.
(q) Moore v. Peachey, 7 Times
Bridger v. Savage,15 Q. B. LL. R. 748—Charles, J. See also

9

=

D. 363; 54 L. J., Q. B. 464; 53 Potter v. Codrington, 9 ‘Times L. R.
L. T., N.S. 129; 33 W. R. 8u1— 54, where the facts proved were
CU. A., overruling Beyer v. Adams, held insufficient to constitute an
26 L. J., Ch. 841. See also Savage — estoppel.

v. Madder, 36 L. J., Ex. 178; 16

C
&
ee

A betting
agent.

417
418

Read v.
aluderson.

Gaming Act,
1892.

WAGERS.

whom the bookmaker made the bets in fact. Where the
latter by his course of business holds himself out as a com-
mission agent, the plaintiff has a primd facie right to recover
the bets from him (7). The principal cannot maintain an
action against the agent for damages for breach of con-
tract in failing to make a bet pursuant to the principal’s
instructions, as the bet being irrecoverable at law the
principal can suffer no loss from the failure of his agent to
make it (s).

In Read y. Anderson (t) it was held by the Court of
Appeal (w), affirming the decision of Hawkins, J. (x), that
the employment of a turf commission agent, being a
member of Tattersall’s, to make a bet in his own name on
behalf of his principal implied an authority to pay the bet
if lost, and on the making of the bet that authority became
irrevocable ; the result being that an agent who had paid
money under such circumstances could maintain an action
against the principal for its recovery.

But this ruling has been superseded by the Gaming Act,
1892 (vy), which enacts that, ‘any promise, express or
implied, to pay any person any sum of money paid by hin
under or in respect of any contract or agreement rendered
null and void by the Act of 8 & 9 Vict. c. 109, or to pay
any sun of money by way of commission, fee, reward, or
otherwise in respect of any such contract, or of any services
in relation thereto or in connexion therewith, shall be null
and void, and no action shall be brought or maintained to
recover any such sum of money.”

This Act is not retrospective (z). Neither does it affect
the right of a principal to recover from his agent the
amount of bets won and received by him (a). But money
paid by one person for another at his request to persons to
whom the latter has lost bets is money paid “in respect” of
a gaming contract within the meaning of the Act, even
though the former was no party to the betting; and cannot,
therefore, be recovered from the party at whose request it
was paid (0).

(r) Grimerd v. Weltshire, 10 (x) 10 Q. B. D. 100.

Times L. R. 505, 506—Charles, J. (y) 55 Vict. vc. 9,8. 1.

(s) Cohen v. Ailtell, 22 Q. B. D. (2) Knight v, Lee, [1893] 1Q. B.
680; 58 L. J.,Q. B. 241; 6OL.T. 41; 62 L.J., Q. B28; 41 WLR.
932; 87 W. R. 400. 125.

(t) 13 Q. B.D. 779; 53 L. J., (a) De Mattos v. Benjamin, 10 R.
Q. B. 582; 51 L, T.,N. 8.555; 32 108; 63 L. J.,Q. B. 248; 70L. T.,
W.R. 950. : N. 8.560; 42 W. R. 284.

(u) Bowen and Fry, L.JJ., Brett, (0) Tatam v. Reeve, (1893] 1
M.R., dissenting. Q. B. 44; 62 L. J., Q: B.°30;
WAGERS.

Money deposited with a stake-holder to abide the result
of a foot-race between the depositor and a third person is
not money paid under or in respect of a wagering contract
within the Act, and, therefore, if demanded by the depositor
from the stake-holder before payment over to the third
person, can be recovered by action (c).

Where bills of exchange were accepted without a drawer’s
name and handed to B. in payment of bets; and B. subse-
quently, for consideration, handed them to the plaintiff, who
signed his own name to them and sued the defendant on
them; it was held that the Act did not apply, and that the
defendant was liable (d).

In the case of Reg. v. Orbell (e), it was held to be an
indictable offence to get a person to lay money on a race,
and prevail with the party to run booty; for though the
cheat was private in this particular, yet it was public in its
consequences. Cheating, however, 1s now specially pro-
vided against by the 17th section of 8 & 9 Vict. c. 109,
where it is enacted that ‘every person who shall by any
JSraud or unlawful device or tll practice, im wagering on the
event of any game, sport, pastime, or exercise, win from any
other person to himself, or any other or others, any sum of
money or valuable thing, shall be deemed guilty of obtain-
ing such money or valuable thing from such other person
by a false pretence with intent to cheat or defraud such
person of the same, and being convicted thereof shall be
punished accordingly ;”’ and therefore every such person is
guilty of a misdemeanor, and on conviction is liable at the
discretion of the Court to penal servitude for any period not
less than three years or exceeding five years (/'), or to be
imprisoned for any term not exceeding two years (g), and
the prosecutor is entitled to his costs under 7 Geo. 4, c. 64,
8, 28 (A).

What is commonly known as “welshing” is also an
indictable offence. Thus, where the prisoner laid odds
against a particular horse at a race meeting, and, upon its
winning, decamped with the money deposited with him by
the prosecutor to abide the event of the wager, it was

67 L. T., N. 8. 683; 41 W.R. (f) 24 & 25 Vict. c. 96, s. 88;

174. 54 & 55 Vict. c. 69, s. 1, sub-s. (1).
(ce) O'Sullivan v. Thomas, [1895] (g) 24 & 25 Vict. c. 96, s. 88;

1 Q. B. 698. 54 & 55 Vict. c. 69, 8. 4, sub-s. (2).
(a) Faulks v. Atkins, 10 Times (4) Per Patteson and ‘Talfourd,

L. R. 178—Wills, J. JJ., Reg. v. Gardner, Worcester
(e) Reg. v. Orbell, 6 Mod. 42. Spr. Ass. 185).

EE 2

Cheating
wager.

Welshing.

419
420

WAGERS.

held that as it appeared that the latter parted with his
money with the intention that in the event of the horse win-
ning it should be repaid, while the former obtained possession
of the money fraudulently, never intending to repay it in
any event, there was no contract by which the property in
the money could pass, and therefore there was evidence of
larceny by a trick (7).

() R. v. Buckmaster, 20 Q, B. D.182; 57 L. J., M. C. 25.
CHAPTER IV.
GAMING.

Gamine, by playing at cards, dice, or any other games,
when practised without fraud and as a recreation, is not
an offence at common law; such transactions, however,
have never met with much encouragement when brought
into a Court (a).

By the custom of London, it is a sufficient cause for a
master to turn away his apprentice, that he frequents
gaming, and he may justify it before the chamberlain (0).

The dismissal of a confidential commercial clerk before
the expiration of the term of his engagement, upon the
discovery that he had for many years previously been
engaged in speculating in “differences” upon the Stock
Exchange to a large extent, has also been held justifi-
able (c).

But it is laid down that the Bishop cannot refuse to
induct a clergyman when presented to a living, merely
because he is a player at unlawful games, or a haunter
of taverns (d) ; because, as Sir Simon Degge says, each of
these is not malum in se, but only malum prohibitum (e).

It appears to be somewhat doubtful whether excessive
gaming is, at the present day, unlawful in itself. In
Bacon’s Abridgment, tit. Gaming (A), it is said that, “it
seems that by the common law the playing at cards, dice,
&e., when practised universally and as a recreation, the better
to fit a person for business, is not at all unlawful nor punishable
as any offence whatever.” In Rex v. Rogier (7) Abbott, C.J.,
said that “the playing for large and excessive sums of
money would of itself make any game unlawful;” Best, J.,
adding that “it is quite clear that any practice that has
a tendency to injure public morals is a common law

(@) Bac. Abr. tit. Gaming, A.; 536; 55 L. J. Q. B. 306—C. A.

Dalton, c. 28; Sherbon v. Colebach, (d) Specot’s case, 5 Rep. 58 a,
2 Vent. 175. p. 118.

(b) Woodroffe v. Farnham, 2 Verv. (ce) Degge’s P. C., Part 1, Chap. I.
291. (f) 1B. & C. at p. 275; 2D. &

(ce) Pearce v. Foster, 17 Q. B.D. R. 481.

Gaming not
unlawful.

Where a
London
apprentice

“* frequents ’’
gaming.
Dismissal of
servant for
gambling on
Stock Ex-
change.

Where a
clergyman
plays at
unlawful
games.

Excessive
gaming.
422

Using false
dice.

Winning
exorbitant
sums.

GAMING,

offence. No game is unlawful in itself; but every game
may be rendered so by playing at it for an excessive stake ;
for it is the amount played for, and not the name or
nature of the game which is the essence of it, and which
constitutes an offence in the eyes of the law (g).’’ In Jenks
v. Turpin (h), however, Hawkins, J., said that since the
repeal of the statutes of Anne and 18 Geo. 2, ¢. 34, (as
to which, see ante, pp. 360, 363), he did not think that ex-
cessive gaming upon any game would in itself render the
game unlawful; “for excessive gaming per sé is not any
longer a legal offence. It was not one at common law,
and there now exists no statute against it.” But a different
conclusion was arrived at by A. L. Smith, J., the latter
learned judge being of opinion that the dictum of Best, J.,
in Rex v. Rogier (7), is still good law, notwithstanding the
repeal of the statutes in question (/).

‘‘Common players and hazarders with false dice” are
indictable (/), and even an infant may be indicted for
cheating with false dice (m).

The winning of exorbitant sums of money has been dis-
couraged both by Courts of Law and Equity. Thus, in the
case of Sir Basil Firebrasse v. Brett (n), it appeared that
the defendant and Sir William Russell dined with the
plaintiff at his house, and after dinner fell into play. When
they began, the defendant and Sir William Russell had not
above eight guineas between them, but they won about
9002. in ready money, which the defendant brought away
with him. The plaintiff, upon losing this, being somewhat
inflamed by wine, brought down a bag of guineas, con-
taining about 1,500/, which the defendant also won; but
as he was leaving the house with it in his possession, the
plaintiff and his servants seized upon it, and took it from
him. The plaintiff had brought an information against
the defendant for playing with false dice, but he was
aequitted. The defendant then brought an action of tres-
pass against the plaintiff for taking from him in a forcible
manner this bag of guineas. The Lord Chancellor granted
an injunction to stay these proceedings at law, though the
defendant had by answer denied all the circumstances of

(g) 2D. & R. at p. 435. (2) 2 Rol. Abr. 78; Leeser’s case,
(A) 138 Q. B. D. 505, at pp.524, Cro. Jac. 497.

526; 538 L. J., M. C.161; 50 L. T., (m) Bac. Abr. Infant (H.).

N. 8. 808. (2) Sir Bazil Firebrasse v. Brett,
(i) Note (7), supra. 1 Vern. 489 ; Sir Bazill Firebrass v-

(k) 13 Q. B. D. at p. 532. Brett, 2 Vern. 70.
GAMING,

fraud charged in the bill. And his Lordship said, that he
thought the sum very exorbitant for a man to lose at play
in one night, and that if it was in his power he would pre-
vent it; and cited the case of Sir Cecil Bishop v. Sir John
Staples in the time of Lord Chief Justice Hale, about a
wager upon a foot race, and that the Chief Justice said,
in that case, that those great wagers proceeded from avarice
and were founded in corruption, and decided that he would
give the defendant leave to imparl from time to time. His
Lordship then said, that if such discouragement was given
to gaming at common law, it ought much more to be done
in a Court of Equity.

Cheating in a game or at play is now an indictable
offence ; for by the 17th section of 8 & 9 Vict. c. 109, it
is enacted, “that every person who shall by any fraud or
unlawful device or ill practice in playing at or with cards,
dice, tables, or other games, or in bearing a part in the
stakes, wagers, or adventures, or in betting on the sides
or hands of them that do play, or in wagering on the event
of any game, sport, pastime, or exercise, win from any
other person to himself, or any other or others, any sum of
money or valuable thing, shall be deemed guilty of obtain-
ing such money or valuable thing from such other person
by a false pretence with intent to cheat or defraud such
person of the same, and being convicted thereof shall be
punished accordingly ” (0).

Tossing coins for wagers is a sport, pastime, or exercise,
if not a game within this section (7).

The ‘fraud or unlawful device” must be practised
during the game itself to support an indictment for obtain-
ing money by a false pretence, and it is not sufficient that a
fraud was resorted to, to induce the prosecutor to play (¢).

Where several persons confederated and combined _to-
gether to play at skittles, so that the play of one of them
should betoken his skill to be much less than it really was,
in order that the prosecutor (a looker-on) might be induced
to play with him, and thereby lose to him his money, it
was held to be an indictable conspiracy (7). ;

In order to support a conviction on a count alleging a
conspiracy by false pretences and fraudulent devices to cheat

(o) See Cheating ina Wager, ante, (p) Reg. v. O'Connor, 45 L. T.,
p. 419. In the case of Burnett v. N.S. 512—C.C. R.
ulllen (4 Jur., N. 8. 488), the Court (q) Reg. v. Baiiey, 4 Cox, C. C.
ot Exchequer were equally divided 39

7.
as to whether the term ‘‘ blackleg”’ (r) Reg. v. Bailey, 4 Cox, C. C.
was per se defamatory or not. 390.

423

Cheating in a
game or at
play.

The fraud or
unlawful
device.

Conspiracy to
cheat.
424

Where a
criminal infor-
mation was
refused.

Contracts for
gaming.

Money
deposited for
gaming.

French law
as to the
recovery of
stakes.

English law
as to the
recovery of
stakes.

GAMING.

the prosecutor of his money, it is not necessary to give in
evidence such a false pretence as would, if money had been
obtained on it by one prisoner alone, have been sufficient
to sustain an indictment against him for obtaining money
by false pretences; and it is no bar to a conviction that
the prosecutor had the intention of cheating the prisoner if
he could (s).

A criminal information was refused by the Court of
King’s Bench for a conspiracy to cheat, where it appeared
that the persons making the application, as well as the
other parties against whom it was made, were a set of
cheats and gamblers (/).

By 8 & 9 Vict. c. 109 (2), “all contracts and agreements,
whether by parol or in writing, by way of gaming or
wagering,”’ are null and void.

And where money has been paid to a stakeholder, in
pursuance of a contract by way of gaming, either party
may recover back his share before it has been paid over (2).
But in no case can the whole be recovered by the winner.

The French law does not allow an action for a debt at
play. But ganes proper in the exercise of feats of arms,
fuot races, horse or chariot races, tennis, and other sports of
the same nature, which require address and agility of body,
are excepted, subject to the power of the Court to reject
the demand where the sum appears to be excessive ().

Under the proviso in the 18th section of 8 & 9 Vict.
c. 109, the enactment in that section is “not to be deemed
to apply to any subscription or contribution, or agreement
to subscribe or contribute, for or towards any plate, prize,
or sum of money to be awarded to the winner or winners
of any lawful game, sport, pastime or exercise” (zs). It
is not clear what is excepted by the word game in that
proviso, but it seems probable that the “sum of money to
be awarded to the winner” at the termination of ‘“ any
lawful game, sport, pastime, or exercise,” is meant to be
a sum ascertained before the commencement of such game,

Reg. vy. Hudson, Bell, C. C. N.S.
; 29 L. J., M. C. 145.
t) Rex vy. Peach, 1 Burr. 648.

(uw) 8 & 9 Vict. ¢. 109, s. 18,
Appendix.

(x) Cotton v. Thurland,5 T. R.

> 24 W. R. 607; Diggle

2 Ex. D. 422; 46 L. J.,
3 ; 387 L. T., N. 8. 27; 26
W. RR. 777—C. A.; Trimble v. Hill,
5 ape Cas. 342. See ante, pp. 376

408; Smith v. Bickmore, 4 Taunt.
474; Hastelow v. Jackson, 8 B. & C.
2213 Hodson y. Terrell, 1 C. & M.
802; Hampden v. Walsh, 1 Q. B.D.
189; 45 L. J., Q. B. 238; 33 L. T.,

(y) Code Civil, Book 3, tit. 3,
Chap. 1, art. 1965, 1966,

(s) 8 & 9 Vict. c. 109, s. 18,
Appendix; and see Wagers, ante,
Part III., Chap. III.
GAMING,

&c., as distinguished from the case where it is uncertain
what sum may be won or lost until the game has concluded.
It would appear, therefore, that so long as the money won
is a stake and not a bet, and the game, &e. is Zawful, and
perhaps the sum ascertained before the commencement of
such game, &c., the winner may maintain an action against
a loser for his subscription or contribution to the stake (a).

The following are lawful games, sports, pastimes, or
exercises :—horse races (b), steeple chases (c), trotting
matches (d), coursing matches (e), foot races(/), boat
races (gy), regattas (4), rowing matches (/), golf, wrestling
matches (?), cricket (k), tennis, fives, rackets, bowls (/),
skittles (m), quoits, curling, putting stone, football (x), and
presumably, every bond fide variety, or similar description
of such games, &c. The winner therefore, in any of these,
may recover from the loser, or each of the losers, his sub-
scription or contribution to the stake (0).

The following lawful games when played for money (7)
may, primd facie, be called lawful gaming or play :—Whist
and other lawful games at cards, backgammon (q), bil-
liards (7), bagatelle (1°), chess (s), drafts (s), dominoes (s), &e.

By the 72nd section of the Highway Act (t) a penalty
is imposed upon any person “ who shall play at football or
any other game on any part of the highway, to the annoy-
ance of any passenger or passengers.”’ ‘Therefore where a
number of persons assembled together in a public highway

(2) The distinction between a
stake and a bet was taken in Connor
v. Quick, cited 2 W. Bla. 708. See
also Batty v. Marriott, 5 C. B. 818;

P. 376; AManby v. Scott, 1 Mod. 136.

(k) See Jeffreys v. Walter, 1 Wils.
220; IFalpole v. Sanders, 7D. & R.
130; Hodson v. Terrill, 1 C. & M.

Diggle v. Higgs, 2 Ex. D. 422; 46
L. J., Ex. 721; 37 L. T., N.S. 27;
25 W. R.777—C. A., ante, pp. 376,
377.

(0) See the Law as to Racing,
ante, Part III., Chap. II.

(c) See Evans v. Pratt, 4 Scott,
N. R. 378.

(d) See Holmes v. Sixsmith, 7
Exch. 802.

(e) See Daintree v. Hutchinson,
16 M. & W. 87; Emerson v. Dich-
son, ante, p. 383.

(f) See Batty v. Marriott, 5 C. B.
818; Coates v. Hatton, 3 Stark. 61.

(g) See Cheeseman ¥. Hart, ante,
p. 392.

(h) See Bostock v. North Stafford-
shire Railway Co., 4 E. & B. 798.

() See Kennedy v. Gad, 3 C. &

797; Holmes v. Bagge, 17 Jur. 1095.
(1) See Sigel v. Jebd, 3 Stark. 2.
(m) See Foot v. Baker, 5 M. & G.

339 ; Batty v. Marriott, 5 C. B. 818;

Reg. v. Builey, 4 Cox, C. C. 396.
(2) See Manby v. Scott, 1 Mod.

136.

(0) See 8 & 9 Vict. c. 109, s. 18,
Appendix.

(p) If money is not staked, it is
not gaming, Reg. v. Ashton, 22 L.
J., M. C. 1.

(q) See 13 Geo. 2, c. 19, 8. 9,
Appendix.

(r) See 8 & 9 Vict. ¢. 109, 8. 15,
Appendix. See also Parsons v. Alex-
ander, 1 Jur., N. 8. 660.

(s) See Reg. v. Ashton, 22 L. J.,
M. C.1, Q. B.

(t) 5 & 6 Will. 4, ¢. 50.

425

Lawful
games, &c.

Lawful
gaming or
play.

“Game”
under the
Highway Act.
426

Unlawful
games.

Lotteries.

GAMING.

to enjoy a diversion called “a stag-hunt,” which consisted
in one of the number representing a stag, and the others
chasing him, whereby an obstruction was caused, it was
held that this was “a game” within the meaning of the
Act (w).

A variety of games are prohibited by statute. Thus all
lotteries are declared to be public nuisances in whatever way
they may be drawn or arranged (x). The games of the ace
of hearts, pharaoh, basset and hazard (y) are to be deemed
games, or lotteries by cards or dice, and are wulawful,
whether played at a public table or in private (zs). Also
the game of passage and every other game with dice, except
backgammon and other games played with backgammon
tables, are to be deemed games or lotteries by dice within
12 Geo. 2, ¢. 28 (a). The game of rolypoly, or roulet, is
also prohibited under the same penalties (4).

To these may be added any game of chance, or mixed
game of chance and skill, when played for money in a
common gaming house, at all events within the meaning
of the 17 & 18 Vict. c. 38, s. 4, which imposes a penalty
upon the keeper of a house for the purpose of unlawful
gaming being carried on therein (c). Baccarat, whether
“‘banque” (d) or ‘chemin de fer” (e), 1s a game of chance,
and, therefore, an unlawful game in this sense. The
question whether or not games of chance when played for
money in a gaming house are unlawful, in the sense that
they render the players subject to a criminal prosecution,
has not yet been decided. In Jenks v. Lurpin(f),
Hawkins, J. committed himself to no opinion on this pot,
on the ground that it was unnecessary under the circum-
stances of the case (y); but A. L. Smith, J. said that in his
opinion gaming in a common gaming house was unlawful
in the sense of being criminal, and that the law would
punish it accordingly (”).

The statutes contaiming provisions concerning lotteries

(u) Pappin y. Maynard, 9 L. T., (4) 18 Geo. 2, c. 34, s. 1, Appen-
N. 58. 327. dix.
(x) 10 & 11 Will. 3, ¢. 17, 8. 1. (ce) Jenks v. Turpin, 138 Q. B.D.

(y) See Rex v. Liston, 5 To RB. 505; 53 L. J., M. C. 161; 50 L. T.,
240; Jenks v. Turpin, 13 Q. B.D. N.S. 808.
at p. 524. (d) bid.

(zs) 12 Geo. 2, c. 28, s. 2, Appen- (¢) Fairtlough v. Whitmore, [1895]
dix; and see M*Minnell v. Robinson, W.N. 52—Stirling, J.
3M, & W. 441; Rex v. Liston, (f) Ubi supra.
5 T. R. 240. (g) 13 Q. B. D. at p. 526.

_(@ 183 Geo. 2, v. 19, ». 9, Appen- (A) Jenks v. Lurpin, 13 Q. B. D-
dix. at p. 532.
GAMING,

and littlegoes are 10 & 11 Will. 3, c.17; 9 Ann.c. 6;
8 Geo. 1, ¢. 2; 9 Geo. 1, c 19; 2 Geo, 2, ¢ 28, s. 9;
6 Geo. 2, c. 35; 12 Geo. 2, c. 28; 18 Geo. 2, « 19;
42 Geo. 3, c. 119; 46 Geo. 3, c 148; 4 Geo. 4,
c. 60; 6 & 7 Will. 4, c. 66; 8 & 9 Vict.c.74; and 9 & 10
Vict. c. 48, and are to be found set out at length in
Chitty’s Statutes, 5th ed., under the heading “ Games and
Gaming.”

The statute 10 & 11 Will. 8, c. 17, recites the mischiefs
arising from Lotteries under colour of certain patents and
grants; and then enacts, not only that all such lotteries,
but also that ad? other lotteries, are public nuisances (h).

It imposes a penalty of 5007. to be recovered in any of
her Majesty’s Courts at Westminster, upon every person
who may “exercise, expose, open or show to be played,
thrown or drawn at, any such lottery, play, or device, or
other lottery ” (2).

Also a penalty of 20/. to be recovered in like manner
upon every person who “shall play, throw or draw at any
such lottery, play or device, or other lotteries ”’ (1).

The statute 9 Geo. 1, c. 19, s. 4, imposes a penalty of
200/. for setting up any lottery by virtue of a grant from
any foreign prince, state, or government, or issuing any
advertisement for the same, or for selling tickets in this
country fur any foreign lottery; and the like penalty is
imposed by 6 Geo. 2, c. 35, for selling or procuring any
ticket, receipt, chance, or number in any foreign lottery, or
in or belonging to any class, part, or division of such lottery,
or any ticket for any duplicate of any foreign lottery. The
9 Geo. J, c. 19, s. 4, only applies to the erection of foreign
lotteries in this country. An agreement to purchase a
concession conferring the right to erect lotteries in a foreign
country is, therefore, not within the scope of the section (2).

The statute 12 Geo. 2, c. 28, s. 1, imposes a penalty of
200/. upon every person erecting, setting up, continuing, or
keeping “ any office or place under the denomination of a
sale or sales of houses, land, advowsons, presentations to
livings, plate, jewels, ships, goods or other things by way of
lottery,” or advertising for advances of “ small sums of
money by several persons, amounting in the whole to large

(K) 10 & 11 Will. 3, ¢. 17, 8.1;
and see Allport v. Nutt,1 C. B. (x) Macnee v. Persian Investment
at p. 989. Corporation, 44 Ch. D. 306; 62

() 10 & 11 Will, 3, c. 17, L.'L., N.S. 894; 38 W. R. 596.

2.

(m) 10 & 11 Will. 3, ¢. 17,8. 3.

8

427

Lotteries
declared
nuisances.

Penalty for
keeping a
lottery.

Penalty for
drawing at a
lottery.

Foreign
lotteries.
9 Geo. 1,
CG. 193
6 Geo. 2,
c. 35.

Penalty for
setting up
sales by
lottery.

12 Geo. 2,
c, 28.
428

Games within
intent of Act.

Penalty on the
adventurers.

Sales by
lottery void.

Allotment or
partition by
lots.

Passage and
games with
dice.

13 Geo. 2,
c. 19.

Roulet or
rolypoly.
18 Geo, 2,
c. bd.

Littlegoes
declared
nuisances.
42 Geo. 3,
Ce LLG,

GAMING,

sums to be divided among them by chances of the prizes in
some public lottery or lotteries established or allowed by
Act of Parliament,” or exposing for sale any of the above
things by any game, method, or device whatsoever, to be
determined by any lot or drawing.

By section 2, the games of ace of hearts, pharaoh, basset,
and hazard are declared to be games or lotteries by cards
or with dice within the meaning of the statutes 10 & 11
Will. 3,c.17; 9 Ann. c. 6, s. 56; and 8 Geo. l,«. 2,
s. 36, with the same penalties for setting up the same.

By section 3, a penalty of 50/. is imposed upon every
person who shall be an adventurer in any of the said games,
lotteries, or sales, or shall play at either of the said games of
the ace of hearts, pharaoh, basset, and hazard.

By section 4, all sales by lotteries are declared void, and
the subject matter of any such sale is to be forfeited to the
person who shall sue for the same.

And by section 11, nothing contained in the Act is to affect
any interest in lands, &e. held by any allotment or parti-
tion by lots. But all who may at any time become “ part
owners, joint tenants, or tenants in common,” of any land,
&e., may take such interest as they might have done by
virtue of “ any lot, scroll, chance, or allotment whatsoever,”
if the Act had never been passed.

By 13 Geo. 2, c. 19, s. 9, the game of passage, and all
games, invented or to be invented, with dice, except back-
gammon, are to be deemed to be lotteries within the mean-
ing of the 12 Geo. 2, c. 28,¥supra, and all persons who “set
up, maintain, or keep any office, table, or place,” (save as in
the said Act is provided and declared), for such games, or
who “play, set at stake, or adventure at’ them shall
respectively be liable to the penalties inflicted for the lke
offences against the said Act.

And by 18 Geo. 2, ¢. 34, ss. 1 and 2, the lke penalties
are imposed upon persons keeping any house, room, or
place, or permitting it to be used, for playing at roulet, or
rolypoly, or any game with cards or dice, already pro-
hibited by law, or playing at the same.

The statute 42 Geo. 3, c. 119, recites the mischiefs
oceasioned by certain lotteries called Jitt/egoes, and declares
that “all such games or lotteries called littlegoes are public
nuisances ”’ (0).

Persons keeping lotteries within the meaning of this Act,

(0) 42 Geo. 3, ¢. 119, s. 1: und see Allport y. Nutt, 1 C. B. at p. 989.
GAMING,

or 10 & 11 Will. 3, ¢. 17, are liable to indictment for the
nuisance notwithstanding the pecuniary penalties im-
posed (p).

And it is enacted that no person “shall publickly or
privately keep any office or place, to exercise, keep open,
show, or expose to be played, drawn, or thrown at or in,
either by dice, lots, cards, balls, or by numbers or figures,
or by any other way, contrivance, or device whatsoever,
any game or lottery called a Jittlego, or any other lottery
whatsoever not authorized by parliament,” under a penalty
of 5007. to be recovered in the Court of Exchequer at the
suit of the Attorney-General (¢).

The same penalty is also incurred by any person who
‘shall knowingly suffer to be exercised, kept open, shown,
or expose to be played, drawn, or thrown at or in, either
by dice, lots, cards, balls, or by numbers or figures, or by any
other way, contrivance, or device whatsoever, any such
game, or lottery, in his or her house, room, or place ”’ (1).

Before the passing of the Vagrant Acts, 3 Geo. 4, c. 40,
and 5 Geo. 4, c. 83, offenders not proceeded against for
the above penalty were punishable as rogues and vaga-
bonds, under 17 Geo. 2, ¢. 5 (s). But though by 5 Geo. 4,
c. 83, s. 1, it is enacted ‘That all provisions heretofore
made relative to rogues and vagabonds” are repealed, yet
it would appear that the combined operation of 3 Geo. 4,
ce. 40, s. 21, and 5 Geo. 4, c. 83, s. 21, continues to justices
of the peace their jurisdiction under 42 Geo. 3, c. 119 (¢).

Under s. 4 of the Summary Jurisdiction Act, 1879,
justices may inflict a fine in lieu of imprisonment on per-
sons convicted as rogues and vagabonds, but they have no
power simply to convict him of keeping a lottery, and
fine him for so doing (v).

The statute 42 Geo. 3,¢. 119, s. 4, further empowers
any justice of the peace upon information on oath, to issue
a warrant authorising any person (but if by night then in
the presence of a constable), to break open and enter any
house or place where they have information of any offence
being committed within the Act, and to apprehend all
offenders, and all persons aiding and abetting in any such

(p) RB. v. Crawshaw, 30 L. J., M. (t) Reg. v. Justices of Bristol,
C.58;3L.T.,N.8.510;9W.R. Jan. 11, 1854,Q. B.; Youdan v.

68 Crookes, 22 J. P. 287; Taylor v.
(g) 42 Geo. 3,c.119,ss.1,2; and Smetten, 11 Q. B. D. at p. 212.

see Allport v. Nutt, 1C. B. atp. 989. () Taulor vy. Smetten, 11 Q. B.
(r) 42 Geo. 3, c. 119, s. 2. D. at p. 212.

(s) See 42 Geo. 3, c. 119, s. 3.

429

Penalty for
keeping a
place for a
lottery or
littlego.

Penalty for
suffering any
lottery to be
drawn, &c.

Jurisdiction
of justices.
Agreement to
pay money on
event of
lottery.

Selling tickets.
4 Geo. 4, ¢. 60.

Place.

Recovery of
penalties.
46 Geo. 3,
a. 148;

Advertising
lotteries.

GAMING.

offence, and provides for the punishment of persons
obstructing any such officer in the execution of his duty ;
aiders and abettors, and persons employing others in carry-
ing on such lotteries being deemed rogues and vagabonds,
and punishable as such.

By s. 5, no person is to agree to pay money or to deliver
goods on any event or contingency relative to the drawing
of any tickets, lots, or numbers in any such lottery, or to
publish any proposal for any such purposes under a penalty
of 10042.

By 4 Geo. 4, c. 60, s. 41, any person selling tickets in any
lottery authorised by any foreign potentate or state, or to be
drawn in any foreign country, or in any lottery not autho-
rised by Act of Parliament, or publishing any proposal or
scheme for the sale of tickets, is rendered lable to a fine
of 50/., and to be dealt with as a rogue and vagabond.

And bys. 60 ofthe same Act, the word “place” is
declared to extend to any place in or out of an enclosed
building, whether on land or water.

By 46 Geo. 3, ¢. 148, s. 59, all penalties under that Act,
or any Act concerning lotteries, are to go to the Crown,
and to be sued for only in the name of the Attorney-
General.

Previously to this enactment proceedings for the recovery
of penalties under the 42 Geo. 3, c. 119, could be taken
before magistrates, except in cases of state lotteries (x) ;
but all proceedings for the recovery of penalties under the
Lottery Acts must now be taken in the name of the
Attorney-General, whether the lotteries are private or state
lotteries (y).

The statute 6 & 7 Will. 4, c. 66, imposes a penalty of
502. on any person who shall print or publish any advertise-
ment or other notice relating to the drawing of any foreign
or other lottery not authorised by Act of Parliament, or
for the sale of tickets or chances in any such lottery, or
concerning or in any manner relating to any such lottery,
or any ticket, chance, or share therein. By the 8 & 9 Vict.
c. 74, all penalties incurred under the last-mentioned Act
are to go to the Crown, and proceedings in respect of
the same to be taken in the uname of the Attorney-
General.

A general statement in the prospectus of a company
that it was formed to acquire and work concessions granted

(x) BR. v. Liston, 5 T. R. 338. (y) RB. v. Tuddenham, 9 D. P. C.
937,
GAMING.

by a foreign prince for lottery loans, and that “at least
five issues have to be made annually” in the foreign
country, is not an advertisement or notice of a foreign
lottery within the meaning of 6 & 7 Will. 4, c. 66 (s).

By 9&10 Vict. c. 48,8. 1, the Act legalising Art Unions,
it is provided that voluntary associations constituted for
the distribution of works of art are to be deemed legal,
where a Royal Charter has first been obtained.

In Webster’s Dictionary a lottery is defined to be a
‘distribution of prizes by lot or chance,” and a similar
definition is given in Johnson. “Such definitions,” said
Hawkins, J., delivering the judgment of the Court in
Taylor v. Smetten (a), “are in our opinion correct, and in
such sense we think the word is used in the statute (b), and
in this view we are justified by the language of the earlier
statutes directed against unlawful games and lotteries ;” and
then proceeded to make special reference to the provisions
of the 12 Geo. 2, ¢. 28, ss. 1, 2, ante, p. 427, 428.

Derby lotteries or sweeps on races, &e., are illegal, and
within the express words, and clear intention, of the
statutes against lotteries (c). And this was so held by
the Court of Queen’s Bench in a case, where subscribers
paid 12. each, on condition that the subscriber whose name
should be drawn out of a box, next after the name of the
horse, which afterwards should be placed first in the race,
was drawn out of another box, should be entitled to re-
ceive 100. (d).

The mischief intended to be remedied by the laws against
lotteries was not the gain acquired by the individual keeping
a lottery, but the introduction of a spirit of speculation and
gambling, tending to the ruin and impoverishment of
families. Therefore if a horse were sold by tickets
amounting in the aggregate to no more than his trve
value, that would be a raffle or lottery (e).

Where an announcement was made by a dramatic per-
former that the holder of a certain ticket of admission to
the theatre should be entitled to a gold watch of a specified
value, and the price of tickets had been consequently
raised, it was held that the holder of the ticket could not

(2) Macnee v. Persian Investment Vict. c. 102, has no relation to
Corporation, 44 Ch. D. 306; 59 racing lotteries, and therefore does
L. J., Ch. 695; 62 L. T., N.S. not make them legal; Gatty v. Field,
894; 38 W. R. 596. 15 L. J., Q. B. 408.

(2) 11Q. B. D. at p. 210. (d) Allport v. Nutt, 1 C. B. 974.

(6) 42 Geo. 2, c. 119, s. 2. (e) See Allport v. Nutt, 1 C. B.

(c) The proviso ins. 18 of 8 & 9 at p. 984.

431

Art Unions.

Definition of
lottery.

Racing
sweeps.

Sale of
property by
lot.

Attempt to
evade the law.
432

Lottery with-
out blanks.

GAMING.

recover the value of the watch, as such a proceeding was in
point of fact a lottery (f).

So, too, the distribution of presents, according to a pre-
vious announcement after a musical entertainment to per-
sons occupying certain numbered seats, who with the rest
of the audience had paid a sum of money for admission
generally to the room, the numbers of the fortunate
recipients being called out, and the presents handed to
them, was held to be a lottery within 42 Geo. 3, ¢. 119,
s. 2 (g).

A ae for the distribution of prizes by chance is not
the less a lottery because each of the ticket-holders is to
receive some value for his money. Thus where the defen-
dant announced a bazaar to be conducted according to the
principles of the Art Union, at which tickets were to be
drawn by subscribers of one shilling, which entitled them,
at all events, to what professed to be a shilling’s worth of
goods, and also to the chance of certain bonuses of greater
value ; it was held that the case came within the mischief
against which the Lottery Acts were directed, inasmuch as
the subscribers parted with their money in the hope of
obtaining not only their alleged shilling’s worth of goods,
but one of the more valuable bonuses, the right to which
was to be ascertained by chance (/).

A similar conclusion was arrived at in Taylor v.
Smetten (i). That was an appeal from a conviction for
keeping a lottery. The appellaut erected a tent, in which
he sold packets, each containing a pound of tea. In each
packet was a coupon entitling the purchaser to a prize,
and this was publicly stated by him before the sale, but
the purchasers did not know until after the sale what prizes
they were entitled to, and the prizes varied in character
ana value. It was held that this constituted a lottery ;
Hawkins, J., delivermg the considered judgment of the
Court, saying that it could not be doubted that in buying
a package, the purchaser treated and considered it as a
purchase of the tea and the coupon, whatever its value
might turn out to be. “In other words he bought the tea
coupled with the chance of getting something of value by
way of a prize, but without the least idea what that prize
might be. In making his purchase he exercised no choice

(f) Roddy vy. Stanley, 5 Ir. Jur. (2) R. v. Harris, 10 Cox, ©. C.
10. 352, per M. Smith, J.

(g) Borris \. Blackman, 10 Jur., (@¢) 11 Q. B.D. 207; 62 L. J.
N.S. 620. M. C. 101; 48 J. P. 36.
GAMING.

—what he got he got without any option or action of his
own will, but as the result of mere chance or accident.”

Where a person kept a shop for the sale of sweets in
packets and sold penny packets of caramels, several of which
contained a halfpenny, in addition to a fair pennyworth of
sweets, it was held that he was rightly convicted of keeping
a lottery, notwithstanding that there was no advertisement
of the prizes (k).

The case of Barclay v. Pearson (2) is another instance
of an unsuccessful attempt to evade the law. In that
case, the defendant, who was the proprietor of a newspaper,
carried on in connection therewith a competition under
the following conditions. He published in his paper a para-
graph omitting the last word, and a coupon containing a
direction that persons wishing to enter the competition
must cut it out, fill in the word missing from the para-
graph, together with their names and addresses, and send it
with a postal order for a shilling, to the office of the paper.
It was further stated in the paper that the missing word
was in the hands of a chartered accountant, enclosed in a
sealed envelope; that his statement with regard to this
would appear, with the result of the competition, in a
subsequent issue of the paper; and that the whole of the
money received in entrance fees would be divided equally
amongst those competitors who filled in the missing word
correctly. The successful competitors brought an action
against the defendant and the unsuccessful competitors,
seeking administration of the trusts of the moneys in the
hands of the defendant, for the purpose of the competition,
and distribution among the persons entitled thereto. It
was held that the competition constituted a lottery within
the meaning of 42 Geo. 2, c. 119, ante, pp. 428, 429, and was
therefore illegal, and that, so far as the money in the
hands of the defendant was impressed with a trust, it
was one which had arisen out of an illegal transaction,
and the Court would not render any assistance in its
administration.

This case is easily distinguishable from Caminada v.
Hulton (m), and Stoddart v. Sagars (n), in both of which

the legality of the racing coupon competitions promoted
(k) Hunt v. Williams, 52 J. P. (m) 60 L. J., M. C. 116; 64
821 L. T., N. S. 672; 39 W. R. 640;

(2) [1893] 2 Ch. 154; 62 L. J., 559. P. 27.
Ch. 636; 68 L. T., N. 8. 7095; 42 (vn) [1895] 2 Q. B. 474; 64
W. R. 74—Stirling, J. L. J. M. 01 234.

0. FF

433

“* Missing
word ” com-
petition.

Racing
“ coupon
competi-
tions.”
434

Ballot in
building
societies, &¢.

GAMING,

by the proprietors of sporting newspapers was questioned.
In the former case, the proprietor of such a paper issued
weekly, at the price of a penny, in connection with the
paper, a handicap book or racing record, the last page of
which was a coupon in which six races to come were
selected, and prizes offered to any purchaser who filled it
up with the names of six, five, or four winning horses,
under certain specified conditions. It was held that this
was not a lottery, Day, J., saying, “I am clearly of opinion
that this case can in no possible sense be deemed to
be a lottery within the meaning of the Lottery Act.
There is no contrivance or device to obtain money by
chance or by anything in the nature of a chance, and
in my judgment, what is done here nowhere approaches
the description of a lottery.” In Stoddart v. Sagars (0)
the defendants published a newspaper containing an
advertisement of a coupon competition, which was to be
carried out by means of coupons to be filled up by the
purchasers of the paper, with the names of the horses
selected by them as likely to come in first, second, third,
and fourth, in a race. For every coupon filled up after the
first the purchaser was to pay a penny, and the defen-
dants promised a prize of 1007. for naming the first four
horses correctly. On the part of the prosecution, it was
sought to distinguish this case from Caminada v. Hul-
ton (p), on the ground that in that case everyone dealing
with the respondent received something of value, as in any
event he got the book. But it was held that the transaction
did not amount to a lottery, as there was no contrivance or
device to obtain money by chance, neither the selection of
the winner of a horse-race, nor the selection of the first four
horses in a race, being purely matters of chance.

A question also arises as to whether the ballot which
takes place in building societies, and other benefit societies
of the like nature, for the choice of allotments constitutes a
lottery within the meaning of the Lottery Acts, and particu-
larly 12 Geo. 2, ¢. 28, ante, p. 427. Where a company
consisting of a number of persons subscribing small sums
was formed for the purpose of buying land, erecting
dwellings thereon, and alloting the same to the subscribers,
the allotment depending upon the result of a ballot;
Pollock, C.B., directed the jury that the scheme was illegal
as being contrary to the Lottery Acts. Upon an applica-

(0) Ante, p, 433. (p) Ante, p. 433.
GAMING,

tion for a new trial the correctness of this ruling was
doubted, but the point was not decided, the company being
held illegal upon another ground (¢).

; In Sykes v. Beadon (r), Jessel, M.R., though not intend-
ing to decide the point, expressed grave doubt as to whether
an association, formed on the principle of investing the
subscriptions of the members, and dividing the capital fund
and profits among themselves, by means of certificates con-
vertible by annual drawings by lot into preference dividend
bonds bearing interest, with a bonus, was not illegal as
being within the Lottery Acts; adding that “Building
societies are in a different position; they are loan societies.
In an association such as this it is not a case of loans to be
returned, but of subscriptions to be divided among the
subscribers by drawings by lot, and the prize is a bond with
a bonus.” But any doubts that may have existed on this
point would appear to be set at rest by the decision of the
House of Lords in Wallingford v. Mutual Society (s), where
it was held that a society constituted avowedly for the
benefit of its members, making certain of them entitled to
particular benefits by the process of periodical drawings,
does not come within the Lottery Acts; Lord Selborne,
L.C., (¢) saying : “ One of those Acts plainly, on the face of its
recitals, (the enacting part not departing from those recitals,)
had reference to gambling transactions only, and in my
judgment this was not a gambling transaction within the
meaning of that Act. The other had reference to persons
who kept lottery offices, at which the public were invited to
pay for lottery tickets; and that Act could have no applica-
tion to this case.”

The case of Barratt v. Burden (u) was an appeal from a
conviction for aiding and abetting in keeping a lottery.
The lottery was carried on by the sale of sweetmeats in the
form of a “ turnover,” a certain number of which contained
sweets enclosing coins. The appellant had supplied these
articles wholesale, well knowing for what purpose they
were to be used, and had urged upon the retail dealer the
purchase of them on the ground that they contained a
greater number of money prizes than those supplied else-
where. It was held that the conviction was nght on the
ground that the supplying of such materials for a lottery,

(g) O'Connor vy. Bradshaw,5 Exch. Q. B. 49; 43 L. T., N.S. 258; 29

882; 20 L. J., Ex. 26. W.R. 81.
(r) 11 Ch. D. 170, 185. (t) 5 App. Cas. at p. 697.
(s) 6 App. Cas. 685; 50 L. J., (u) 63 L. J., M. C. 33.

FFQ2

435

Aiding, &c. in
keeping a
lottery.
436

Results of
illegality of
lotteries.

GAMING.

knowing how they were to be used, amounted to aiding and
abetting in the keeping of such lottery, and that the inciting
the retail dealer in such illegal dealing was evidence to
support the conviction.

One of the results of lotteries being declared illegal is
that not only an agreement which has for its object, or in
any way contemplates, the setting up of a lottery, but also
any security given for the purpose of carrying out any such
agreement, is tainted with illegality, and will, therefore,
not be enforced. In Fisher v. Bridges (x) the plamtif
agreed to sell and convey to the defendant certain land for
the purpose of its being resold by lottery in contravention
of the 12 Geo. 2, ¢. 28, ante, p. 427. The land having been
conveyed to the defendant, but part of the purchase-money
being unpaid, the latter entered into a covenant with the
plaintiff to secure the payment of the balance. To an
action on the covenant the defendant pleaded the illegality
of the transaction. It was held by the Exchequer Chamber,
reversing the judgment of the Court of Queen’s Bench, that
the plea was good; for, the deed being given as a security
for the payment of a debt tainted with illegality, the law,
which would not enforce the payment of the debt, would nut
enforce the payment of the money.

The illegality of lotteries raises a question as to the right
of a subscriber to a lottery to recover the amount of his
subscription. The general rule is that where money is paid
upon an illegal contract, it may be recovered back before
the execution of the contract, but not afterwards. And we
have already seen, when dealing with “ Stakeholders,” ante,
p- 879, that money paid to a stakeholder to abide an illegal
event may be recovered notwithstanding that the event has
happened, provided that the depositor gives notice of his
claim to the stakeholder before he pays it over; for the
contract is not completely executed until the money has
been paid over, and therefore the depositor may retract at
any time before that has been done. Upon this principle it
would appear that a subscriber to a lottery is entitled to
recover the amount of his subscription from the person
setting up the lottery, when the position of the latter 1s that
of a stakeholder, provided that he gives notice of his claim
before the distribution of the prizes (y).

The question whether a subscriber to a lottery, who has

(2) 3 E. & B. 642; 23 L. J, Ch. 154; 62 L. J., Ch. 636; 68
Q. B. 276—Ex. Ch. L. T., N. 8. 709; 42 W. R. 74—
(y) Barclay v. Pearson, [1893] 2 Stirling, J.
GAMING.

omitted to give notice of his claim previously to the distri-
bution of the prizes, can recover the amount of his subscrip-
tion from the keeper of the lottery, depends upon a different
consideration, viz., whether or not the parties are in pari
delicto. There is no reported decision directly in point, but
it would appear that although both have been parties to an
illegal contract the dedictum is not par, as the subscriber is
a member of a class of persons fur the protection of whom
the Lottery Acts were passed, and is therefore entitled to
recover (z), But no action will lie to recover money alleged
to be due as the winnings of a lottery (a).

Cock- fighting is illegal, and indictable at common law (0).
Cock-fighting and a variety of other cruel sports were
prohibited under a penalty by 5 & 6 Will. 4, c. 59, s. 3,
which however was repealed by 12 & 18 Vict. ¢. 92, s, 1.
By s. 2 of that Act itis enacted that any person “cruelly
beating, ill-treating, over-driving, abusing, or torturing, or
causing or procuring to be cruelly beaten, ill-treated, over-
driven, abused, or tortured, any animal, shall pay a penalty
not exceeding 5/.” A cock has been held to be “an ani-
mal” within this section, and therefore a person who takes
an active part in a cock-fight after one or both is disabled,
is liable to be convicted under this section for causing or
procuring a cock to be cruelly ill-treated, abused, or tor-
tured (c).

And by s. 3 of the same Act it is enacted, that ‘every
person who shall heep or use or act in the management of any
place for the purpose of fighting or baiting any bull, bear,
badger, dog, cock, or other bird or animal, whether of domestic
or wild nature, or shall permit or suffer any place to be so
used, shall be liable to a penalty not exceeding 5/. for
every day he shall so keep or use or act in the manage-
ment of any such place, or permit or suffer any place to
be used as aforesaid: provided always, that every person
who shall receive money, for the admission of any other
person to any place kept or used for any of the purposes
aforesaid, shall be deemed to be the keeper thereof; and
every persou who shall in any manner encourage, aid or
assist at the fighting or baiting of any bull, bear, badger,

(2) Browning v. Morris, 2 Cowp. supra; Allport v. Nutt, 1 C. B. 974;
790, 792, per Lord Mansfield, C.J.; 14 L.J., C. P. 272. |
Kearley v. Thomson, 24 Q. B. D. (b) Bac. Abr. Gaming (A.); 3
742, 745, per Fry, L.J.; Barclayv. Keb. 403, 510.
Pearson, [1893] 2 Ch. 154, 167, per (¢), Bridge v. Parsons, 32 L. J.,
Stirling, J. : ; . CG. 98.

(a) Browning vy. Morris, ubi

437

Cock-fighting,
bull-baiting,
&e.

Keeper of a
place for this
purpose.
438

Within the
Metropolitan
District.

Gaming ina
public place.

GAMING,

dog, cock, or other animal as aforesaid, shall forfeit and
pay a penalty not exceeding 5/. for every such offence.”
It has been held to be no offence under this section to
assist at a cock-fight unless in a place kept or used for the
purpose (d).

By the Metropolitan Police Act, 1839 (2 & 8 Vict. ¢. 47),
s. 47, it is enacted, “that every person who within the Metro-
politan Police District shall keep or use or act in the man-
agement of any house, room, pit, or other place for the
purpose of fighting or baiting lions, bears, badgers, cocks,
dogs, or other animals, shall be liable to a penalty of not
more than */., or in the discretion of the magistrate may be
committed to the house of correction, with or without hard
labour, for a time, not more than one calendar month; and
it shall be lawful for the commissioners of police, by order
in writing, to authorize any superintendent, belonging to
the Metropolitan Police Force, with such constables as he
shall think necessary, to enter any premises kept or used
for any of the purposes aforesaid, and take into custody
all persons who shall be found therein without lawful
excuse, and every person so found shall be liable to a
penalty of not more than 5s., and a conviction under this
Act of this offence shall not exempt the owner, keeper, or
manager of any such house, room, pit, or place from any
penalty or penal consequence to which he may be liable for
the nuisance thereby occasioned.”

By 5 Geo. 4, c. 83, s. 4, people “playing or betting in
any street, road, highway, or other open and public place,
at or with any table or instrument of gaming, at auy game
or pretended game of chance,” were to be deemed rogues
and vagabonds, and to be liable to imprisonment with hard
labour for any term not exceeding three calendar months.
It having been held that the words ‘“ instrument of
gaming” here signified things destined for that purpose,
and did not, therefore, apply to halfpence used for pitch
and toss (e), nor to cards (f), this enactment was
amended by the 31 & 82 Vict. c. 52, s. 3, which extended
its provisions to persons wagering or gaming in a public
place with “any coin, card, token, or other article used as
an instrument or means of such wagering or gaming at any
game or pretended game of chance.” Both of these enact-

(d) Morley v. Greenhalgh, 32 L. (e) Watson vy. Martin, 13 W. R.
J., M. ©. 93; Clarke v. Hague,29 144.
L.J., M. C. 105; Coyne v. Brady, (f) R. v. Roach, per Erle, J., at
9L. T., N. 8. 30. Chambers, July 12, 1856.
GAMING.

ments are, however, repealed, the former by the Statute
Law Revision Act, 1888 (No. 2), and the latter by the
Vagrant Law Amendment Act, 1873 (g), by s. 3 of which
it 1s enacted that, ‘every person playing or betting by
way of wagering or gaming in any street, road, highway,
or other open and public place, or in any open place to
which the public have or are permitted to have access, at
or with any table or instrument of gaming, or any coin,
card, token, or other article used as an instrument or means
of such wagering or gaming, at any game or pretended
game of chance, shall be deemed a rogue or vagabond
within the true intent and meaning of 5 Geo. 4, ¢. 83,
and as such may be convicted and punished under the
provisions of that Act, or in the discretion of the justice or
justices trying the case, im lieu of such punishment, by a
penalty for the first offence not exceeding forty shillings,
and for the second or any subsequent offence not exceed-
ing five pounds.

A railway carriage while travelling on its journey is
within the definition of “an open and public place, to which
the public have or are permitted to have access” in this
section (2). And so, it seems, is an omnibus, under similar
circumstances (7). A field belonging to a company which
they allowed their workmen and their families to use for
purposes of recreation, and which strangers were allowed to
use for the like purposes, was also held to be within this
definition (4). Quere, whether the section applies to in-
closed grounds to which persons are admitted on payment
of a price for admission (J).

Where the defendants were charged with being on a
racecourse taking deposits on the bets made and amounts
staked on the several horses, and soliciting the bystanders
to make bets, charging ten per cent. on the amounts won,
for the use of an instrument which displayed the state of
the odds, and by a mechanical arrangement varied the
announcement from time to time according to the bets
made; it was held that such a machine was an instrument
or means of wageriug within the meaning of the statute (vz).

(g) 36 & 37 Vict. c. 38. (k) Turnbull v. Appleton, 45 J.P.
(h) Langrish v. Archer, 10 Q. B. 469.
D. 44; 62 L. J., M.C.47; 47 L. T. () Hirst v. Mulesbury, L. R. 6
N. 8. 548; 31 W. R. 188. Seealso Q. B. 130.
Ex parte Freestone, 25 L. J., M. C. (m) Tollett vy. Thomas, L. R. 6
121. Q. B. 514; 40 L. J.,M. C. 209;

(i) R. v. Holmes, 22L.5.,M.C. 24 L. T., N. 8. 508; 19 W. R.
122. 890.

439

Instruments
of gaming.
440

Betting in
streets in
Metropolis.

Gaming on
license
premises.

GAMING.

But depositing money as a bet on a race is not playing or
betting with a coin as an instrument of gaming ().

In order to convict under this section, it is necessary to
allege and prove that the defendant was guilty of wagering
or gaming at some “game or pretended game of chance.”
A conviction which only states that the defendant was
convicted of bettmg by way of wagering in a public
place, with certain articles used as a means of such wager-
ing, is therefore bad as omitting an essential part of the
case (0).

By 30 & 31 Vict. ¢. 134, s. 28, “any three or more per-
sons assembled together in any part of a street within the
Metropolis for the purpose of betting, shall be deemed to be
obstructing the street, and each of such persons shall be
lable to a penalty not exceeding five pounds; and within
the city of London and the liberties thereof, any constable
of the City Police Force, and without such limits any con-
stable of the Metropolitan Police Force may take into
custody, without warrant, any person who may commit
such offence in view of such constable.”

The Licensing Act, 1872 (p), s. 17, enacts that if any
licensed person (1) suffers any gaming or unlawful game to
be carried on on his premises, or (2) opens, keeps, or uses, or
suffers his house to be opened, kept, or used in contravention
of the 16 & 17 Vict. c. 119, he shall be liable to a penalty
not exceeding for the first offence 107, and not exceeding
for the second and any subsequent offence 207.

The conviction may be recorded on the licence (q).

It would appear trom the authorities that playmg any
lawful games whether of chance or of skill, or of chance
and skill combined, for money or money’s worth, is gaming
within the meaning of this enactment, convictions having
been held good for sutfering cards (7), and skittle pool (s)
to be played for money on licensed premises; and ten
pins (¢), and skittles (w), for beer. So where a licensed
person permitted a game of skill to be played on his pre-
mises, in which each player contributed a certain sum

(x) Hirst v. Molesbury, L. R. 6 (r) Patten y. Rhymer, 3 E. & E.
Q. B. 130; 40 L. J.,. M.C.76; 23 1; 29 L. J., M. C. 189; Hare v.
L. T., N. 8. 55; 19 W. R. 246. Osborne, 34 L. T., N. 8. 294.

(0) Ridgway v. Farndale, [1892] (s) Dyson v. Mason, 22 Q. B. D.

2Q. B. 309; 61 L. J.,.M.C.199; 351; 58 L.J.,M. C. 55; 60 L. T.,
67 L. T., N.S. 318; 41 W.R.128; N.S. 265.
56 J. P. 697.

(
(p) 35 & 86 Vict. v. 94. N.S. 483

t) Danford y. Taylor, 20 L. T.,
(g) 37 & 38 Viet. v. 49, ». 13. («) Luff v. Leaper, 36 J. P. 773.
GAMING,

towards the purchase of a prize to be given to the winner,
it was held that he was rightly convicted (2).

A licensed person who plays cards for money with his
personal friends on the licensed premises, or, without taking
any part in the game, allows them to do so, is liable to
conviction for suffering gaming to be carried on (y), even
though he be bond fide entertaining them at his own expense
during closing hours (s). But there is no provision in the
Act for the conviction of a guest for gaming on licensed
premises, whether during the hours of closing or not;
and the fact that a licensed person who suffers friends,
whom he is lawfully entertaining during closing hours,
to play cards or any other game for money, is guilty of an
offence against s. 17, does not render the latter liable to
conviction under s. 25, as they are not on the premises in
contravention of the Act (a).

Playing a lawful game is not gaming unless money is
staked upon it. In order, therefore, to bring a case within
section 17, the game in question must either have been
played for money or be unlawful in itself. A conviction
upon an information which charged that a person licensed
under the repealed statute 9 Geo. 4, c. 61, did “ knowingly
suffer an unlawful game, to wit, the game of dominoes, to
be played” in his house, was held bad on the ground that
the game of dominoes is not in itself unlawful (6). Buta
conviction upon an information charging a licensed person
with suffering the game of dominoes to be played for money
on his premises would be good (c).

In order to support a conviction under section 17, it is
necessary to give some evidence of actual or constructive
knowledge on the part of the person charged that gaming
was carried on on his premises. But the offence may be
committed by connivance or negligence either on the part
of the licensed person or the person in charge of the
premises.

Thus where a game was played for money when the
licensed person was ill in bed, and there was no evidence
that his wife had any knowledge of the gaming, which was
a mere casual frolic, it was held that he could not be con-

(c) Bew v. Harston,3 Q.B.D. N.S. 294.

464;47L.3.,M.C. 121; 39 L. T., (a) Cooper v. Osborne, 35 L. T.,
N. 8. 233; 26 W. R. 915. N. 8S. 347.

(y) Patten vy. Rhymer, 3 E. & EB. (b) Reg. v. Ashton, 1 E. & B.
1; 29 L. J., M. C. 189. 286; 29 L. T., M. C. 1.

(2) Hare vy. Osborne, 34 L. T., (c) Ibid.

441
442

GAMING.

victed (@). So where a licensed person had been convicted
upon proof that cards were being played for money on his
premises, but without any evidence that the person in
charge knew of the gaming, which took place at a late
hour in a private room; it was held that the case must go
back to the justices “ with an intimation of the opinion of
the Court that actual knowledge in the sense of seeing or
hearing by the party charged is not necessary, but that
there must be some circumstances from which it may be
inferred that he or his servants had connived at what was
going on (e).” But where the landlady of an hotel went to
bed leaving the hall-porter in charge, and he, after closing
the house, instead of taking his usual seat in the hall,
retired to a part of the house as distant as possible from a
room occapied by three persons of evident sporting pro-
clivities, who were subsequently discovered playing cards
for money; it was held that the landlady was, under the
circumstances, responsible for the conduct of the porter,
and that there was sufficient evidence that the latter sus-
pected what was going on, and connived at it, to justify her
conviction (7). Upon the same principle, a conviction was
held good where gaming had taken place on a skittle-alley
which was attached to the licensed premises, to the know-
ledge of the servant in charge, but without any knowledge
or connivance on the part of the licensed person, who had
given general directions to the servant not to permit
gambling (g). But where the gaming had taken place to
the knowledge of a servant employed on the premises, but
not in charge of the room where it had occurred, nor in
any way “clothed with the landlord’s authority,” and
there was no evidence of connivance or wilful blindness
on the part of the latter, it was held that the justices were
right in refusing to convict (7).

A licensed person who opens, keeps, or uses, or sutfers
his house to be opened, kept, or used in contravention of
the 16 & 17 Vict. c. 119, is liable to the 1002. penalty
imposed by section 3 of that Act upon any person so
offending, notwithstanding the provisions of section 17 of

(d) .trards y. Dance, 26 J.P. v. Hole, 43 J. P. 799.
437. (gy) Bond vy. Evans, 21 Q. B. D.
(e) Bosley vy. Davies, 1 Q. B. D. 249; 57 L. J., M. C. 105; 59
84; 45 L.J., M.C.27; 33 L.T.,  L. T., N. 8.411; 36 W. R. 767.
N. 8. 528; 24 W. R. 140. (hk) Somerset v. Hart, 12 Q. B. D.
(f) Redgate v. Haynes, 1 Q. B. 360; 538 L. J., M. C. 77; 48 J.P.
D.°89; 45 L. J., M. C. 65; 33 327.
L. T., N.S. 779. See also Crabtree
GAMING. 443

the Licensing Act, 1872; and it is for the police to deter-
mine under the circumstances of each case under which
statute proccedings should be taken (?). But in order to
convict a licensed person of suffering his house to be used
by another for the purpose of money being received by him
by way of betting contrary to sections 1 and 3 of the former
Act, the money must actually have been received in the
house. A conviction was held bad where bets had been
made near a licensed house, and the stakes had been
received outside it, although they were afterwards deposited
in the house by arrangement with the defendant (k).

By 2 & 8 Vict. c. 47, s. 44, every keeper of a refresh- Gaming in
ment-house within the Metropolitan Police District who eee
knowingly suffers any unlawful game, or any gaming what- “°""
soever therein, is liable to a penalty not exceeding 5/.

And by section 32 of the Refreshment Houses Act,

1860 (2), every person licensed to keep a refreshment-house
who shall knowingly suffer any unlawful games or gaming
therein shall, upon conviction thereof before two justices,
pay, for the first offence a fine not exceeding 40s., for the
second offence not exceeding 5/., and for every subsequent
offence not exceeding 20/., or be subject to a forfeiture of his
licence, at the discretion of the justices before whom he
shall be convicted, and in case of such forfeiture of his
licence, such person shall be disqualified for the space of
one year then next ensuing from obtaining a fresh
licence, and such fresh licence, if obtained within the said
year, shall be absolutely null and void to all intents and
purposes.

Money lent for the purpose of gaming would appear to Money lent
be now recoverable, unless it is lent where the gaiming is for gaming.
unlawiul; as, for instance, by a licensed publican to game
ou his own premises (v2); or by any party to play hazard,

&e. And the principle is, that the repayment of money
lent for the express purpose of accomplishing an illegal act
cannot be enforced (1).

The test whether a demand connected with an illegal Test where
transaction is capable of being enforced at Jaw, is, whether ee eae
the plaintiff requires any aid from the illegal transaction to *'°S**
establish his case (0). As where illegality appeared upon

() Sims v. Pay, 58 L. J.,M. C. 39; (m) Foot v. Baker, 5 M. & G.
60 L. T., N. 8. 602; 53 J.P. 420. 339; and see ante, p. 416.

(&) Davis v. Stephenson, 24 Q. B. (n) ML ‘Kinnell vy. Robinson, 3 M.
D. 529; 59 L. J., M. C. 73; 62 & W. 441.
L.

T., N.S. 486; 38 W. R. 429. (0) Simpson v. Bloss, 7 Taunt.
(2) 23 & 24 Vict. c. 27. 246;17R. R. 509; Fivaz v. Nicholls,
444

Securities for
money lent
for gaming.

Identification
of a promissory
note.

AnIOU.

Money lost
at play.

Securities for
money so lost.

GAMING.

the plaintiff’s own showing, who was unable to establish his
case, without setting up an illegal agreement ()).

Bills of exchange, promissory notes, or mortgages given
for money lent knowingly for the purpose of gaming, or
playing at any game, or ‘lent at the time and place of such
play (q), to persons who during any part of the time may
play, are to be deemed to have been given for an illegal
consideration (v’).

To an action on a promissory note, the defendant pleaded
that it was given for a gambling transaction, but gave the
plaintiff no notice to produce it, and it was not produced.
At the trial, the defendant gave evidence that he had never
given the plaintiff any other note than the note in question.
It was held that in the absence of the production of the
note, this was not sufficient to identify the note referred to
in the plea with the note sued on (s).

An I O U being a mere acknowledgment of a debt,
does not amount to a promissory note. It is primd facie
evidence of an account stated, but not of money lent (¢).
And it has been held that a bill in equity will he to dis-
cover whether an I O U was given for money lent for the
purpose of gaming (w).

Money lost at play when paid cannot be recovered back
again by the loser (v). But if it has not been paid, the
winner cannot maintain any action for it, because the
contract is null and void (2).

All securities under seal, except mortgages, given for
money lost at lawful play, or at any legal game, would now
appear to be good (y). But where a promissory note, a
bil of exchange, or a mortgage, has been given for money
so lost, it is not void as formerly, but is to be deemed and
taken to have been given for an @legal consideration (s).
The consequence of which is, that they are still void as

2 C. B. 501, 513; Broom’s Maxims,
4th ed., 692, 693.

15th ed. 34, and the cases there cited ,
(2) Wilkinson v. LD’ Eaugier, 2 Y.

(p) See Martin v. Smith, 6 Scott,
N. RB. 272.

(q) If the money is lent at the
time and place, the purpose of the
loan is assumed; Foot vy. Baker,
5M. & G. 339.

(r) 5 & 6 Will. 4, c. 41; and see
Giving a security for a Bet, ante,
p. 414.

(s) Meynell v. Bone, 21 Is. T. 158,

t) Fesenmayer v. Adcock, 10 M.
& W. 449; Croker v. Walsh, 4 Ir.
Jur. 293 (Ex. Ir.); Byles on Bills,

& C. 366.

(w) M*Kinnell v. Robinson, 3 M.
& W. 441; Thistlewood v. Cracroft,
1M. & 8. 500.

(x) 8 & 9 Vict. c. 109, s. 18.

(y) Formerly void under 9 Ann.
c. 14, s. 1, which is altered and re-
pealed by 5 & 6 Will. 4, ¢. 41, ss. 1,

, and 8 & 9 Vict. ¢. 109, 8. 15.

() 5 & 6 Will. 4, ¢. "al, Appen-
dix. The word “bill” in this Act
includes a cheque, Lynn v. Bell, 10
Ir. R. C. L. 487.
GAMING.

between the original parties, and also as against all persons
who have taken them with notice of the illegality, or after
they have become overdue, or without giving value for
them; but good in the hands of every person who has
given value, and taken the instrument bond fide, and before
it was due (a).

Accordingly where a bond was assigned for a valuable
consideration without notice of objection to its validity,
the obligor having applied to the assignee for a further
advance, and offering to give a mortgage for the whole, but
stating no objection to the validity of the bond, was not
allowed afterwards to endeavour to avoid the bond by
evidence that it was given to secure money lost by a bet on
a horse race; for the Court will not allow a person to set
up an objection to the validity of his own obligation upon
grounds which he suppressed at the time, but against which,
if divulged, the obligee could have protected himself (0).
It appears, therefore, that bonds are within the equity of
5 & 6 Will. 4, c. 41, which makes securities valid in the
hands of bond fide holders without notice that the considera-
tion was a gaming debt (c).

The effect of the Act, therefore, seems to be, that where
a sum of money was won as a stake in a lawful game, or
under other circumstances therein mentioned, and a pro-
missory note, bill of exchange, or mortgage is given in
payment, or as a security, not only is the instrument void
as between the parties themselves, but the circumstance of
its having so been given avoids the contract on which it is
founded. In such case, therefore, the winner not only
loses the benefit of his security in writing, but is deprived
of his claim to the consideration upon which it was given.

The Court of Exchequer, however, appear to have gone
further in their construction of the statute; for Mr. Baron
Rolfe, in delivering the judgment of the Court in Apple-
garth v. Colley (d), and speaking of 5 & 6 Will. 4, ¢ 41,
says, “That Act, while it repeals so much of the statute of
Anne as makes the securities void, expressly enacts that
they shall be deemed to have been given on an ‘legal con-
sideration, and it is impossible to impute to the Legislature
an intention so absurd as that the consideration should be

(2) Smith, Contr. 186; Fadenilke Giff. 194. See also ante, p. 402, Hill
v. Holroyd, before Chief Justice v. Fou, 4 H. & N. 359.

Wilde, Common Pleas Sittings, Nov. (c) See post, p. 447.
30, 1846. (d) Applegarth v. Colley, 10 M. &
(0) Hawker v. Halliwell, 38m.&  W. 782.

445

General effect
of 5 &6
Will. 4, e 41.
446

GAMING.

good and capable of being enforced until some security is
given for the amount, and then that, by the giving of the
security, the consideration should become bad.”

The necessary conclusion is then arrived at, namely,
“that the statute of Anne, in connection with the 5 & 6
Will. 4, c. 41, must be taken to avoid all contracts for the
payment of money won at play;” and of course all other
contracts within the first section of 9 Anne, c. 14.

According to this view, then, every possible consideration
within 5 & 6 Will. 4, c. 41, for any note, bill, or mortgage
is roid, and we are reduced to the dilemma of being obliged
to hold that the winner of a stake or the lender of money
in any lawful game, where his right to recover could never
otherwise be disputed, is precluded from his remedy on
account of the existence of the possibility of his taking a
note, bill, or mortgage within the statute as security for his
stake or loan. And therefore the sum agreed to be paid to
the winner of a horse race could never be recovered, if we
hold that such a race is now meant by the word “ game.”
However, if the point had come directly before the Court,
perhaps a different opinion might have prevailed.

In Thorpe v. Colman (e), the Court of Common Pleas
studiously guarded themselves against expressing an opinion
on the construction put by the Court of Exchequer upon
5 & 6 Will. 4, c. 41, and the case was decided on another
ground.

In a later case (7), however, Mr. Justice Coltman makes
the following remarks: “It certainly does seem to be a
singular anomaly, that the winner of a race should be
entitled to recover the stakes, and yet that by the combined
operation of 9 Anne, c. 14, and 5 & 6 Will. 4, ¢. 41, if a
promissory note or other security were given for the amount,
ne would be precluded from availing himself of it, by reason
of the illegality of the consideration.”

The 5 & 6 Will. 4, c. 41, is “ An Act to amend the Law
relating to securities given for considerations arising out of
gaming, usurious and certain other illegal transactions.”
It is founded on 16 Car. 2, ¢. 7, and 9 Anne, c. 14, both
of which are Acis to prevent eacessive gaming; and the
notion upon which the sections with regard to securities in
writing were probably framed appears to have been, that
there would be less danger of excessive and immoderate
gaming, if people were kept as much as possible to playing

(e) Thorpe v. Coleman, 1 C. B. (f) Batty vy. Marriott, 5 CO. B.
990; 14L.J., C. P. 260. 828.
GAMING.

for ready money. The Legislature therefore having
encouraged cash or money transactions, it is quite conceiv-
able that a contract should be good so long as a money
payment was contemplated, but become void between the
parties immediately on security being given. This con-
struction of the statute seems much more reasonable, than
that all contracts within 5 & 6 Will. 4, c. 41, in connection
with 9 Anne, c. 14, before any security is given, should be
void between the actual parties.

To an action against the acceptor of a bill of exchange,
drawn by the plaintiff, the defendant pleaded that a be¢

447

Action against
acceptor of
bill of

was lost by the defendant to A. B., and that the said bill of exchange.

exchange was, at the request of A. B., given and accepted
by the defendant in consideration of the said bet, and to
secure payment thereof, contrary to the statute, &., and
that there never was any other consideration for the
acceptance of the said bill; and that the plaintiff at the
time when he drew, and the defendant accepted, the same,
had notice of the premises. The evidence was, that the
defendant had accepted a prior bill drawn by the plaintiff
in consideration of the de¢ lost to A. B., and that the bill
sued upon was given in renewal of that prior bill. The
jury found that the bill declared upon was given in con-
sideration of the bet, and that the plaintiff had notice of it.
And the Court of Queen’s Bench held that the plea was
good, and was an answer to the action under 5 & 6 Will. 4,
c. 41 (9).

Taos 5 & 6 Will. 4, c. 41, s. 2, money paid to the
indorsee by the acceptor of a bill of exchange, given for
a gaming consideration, may be recovered from the person
in whose favour the bill was originally accepted, in an
action for money paid by the plaintiff to the use of the
defendant at his request (/).

And where such a bill peid by the plaintiff bore interest
upon the face of it, it was held by the Court of Queen’s
Bench that the plaintiff was entitled to recover back the
interest paid, as well as the principal money, both being
“secured” by the bill (2).

In an action on a bill of exchange, the defence was,
that the money for which a bill was given had been lost
in a gaming transaction. The person who let the room in
which the gambling took place, was asked a question tend-

(9) Hay v. Ayling, 20 L. J., (h) Gilpin v. Clutterbuck, 13 L.

Q. B. 171; and see Boulton v. Cogh- T. 71.
lan, 1 Bing. N. C. 640. (2) Ib. 159.

Action by
acceptor of
bill of
exchange.

Recovery of
principal and
interest.

Evidence of
owner of a
gaming-house.
448

Summons to
set aside a
warrant of
attorney.

A post obit
security held
good.

Deed substi-
tuted for one
tainted with

illegality.

GAMING.

ing, if answered, to render him liable to be proceeded
against under 8 & 9 Vict. c. 109, when the judge inter-
fered. On a motion for a new trial, on the ground of mis-
direction, the Court of Common Pleas held that the judge
was right, and refused the rule (/).

In Burnett v. Ravenshaw (k), an order was made by a
judge at chambers, on a summons to show cause why a
certain warrant of attorney, alleged to have been given
for a gambling debt, should not be set aside.

In 1833, a post obit security was given in consideration
of certain gaming debts. In 1842, it was assigned to
another party for valuable consideration, who gave notice
to the trustees of the fund. It was held in 1853, by
the Master of the Rolls, that, after the lapse of time,
the deed must be considered to have been given for good
consideration (/).

In the case of The Attorney-General v. Hollingworth (m),
it was held, that where, upon an advance of money, a
security has been taken, which is tainted with usury (x) or
other illegality, and afterwards another security is taken
for the same advance, not tainted with the illegality, and
obviating any necessity for resorting to the former one for
the recovery of the money, such substituted security is valid,
and the money really advanced can be recovered thereon.

(7) Fisher v. Ronalds, 22 L. J., (m) Att.-Gen. v. Hollingworth,
C. P. 62. 27 L. J., Ex. 102.

(k) Barnett v. Ravenshaw, 21 L. (x) The 17 & 18 Vict. ¢. 90, s. 1,
T. 63. repeals all existing laws against

(0) Hawker v. Wood, 1 W.R.316, usury.
R
CHAPTER V.
BETTING HOUSES AND GAMING HOUSES.

Betting Houses.

Ir is quite clear that any practice which has a tendency
to injure the public morals, is an offence at common
law (a). And it is equally clear that the keeping of a common
betting house has such a tendency. For itis found that
persons are tempted by such places, not only to spend more
of their own money than they can properly afford to lose,
but also to embezzle the property of their employers. It
would appear therefore that by law a common betting
house is a public nuisance.

To remedy the evil which obviously existed by the
keeping of such houses, the “‘ Act for the Suppression of
Betting Houses” () was passed. Referring to this Act,
Hawkins, J., in delivering his judgment in Reg. v. Cook (c),
says: “I suppose it is common knowledge that before the
passing of 16 & 17 Vict. c. 119 in 1853, there existed in
London and other populous places, offices and houses where
a regular business of betting was carried on. The offices
or houses were sometimes conducted by a manager or the
owner or occupier whose business it might be said to be, or
sometimes the offices or houses were entrusted to a servant,
while the managers were elsewhere employed attending races
in the country. The business was of this kind: a list of
races about to take place, and the current odds against
each horse were placarded, and the proprietor, who either
himself or by another conducted the business, received

deposits from all sorts of persons to abide the event of races -

on which they were willmg and anxious to bet, and they
in return for their deposits usually had a ticket handed to
them which enabled them when the race was over to receive
the money from the office if they won, and if they lost
the deposit was gone, and they had no further interest in
the bet.”

(a) See Rex v. Rogier, 1 B. & C. (ec) 13 Q.

272; 2D. & R. 431. 382; 51 L
(6) 16 & 17 Vict. c. 119. 796.

oO. GG

B. D. 377, at pp. 381,
T., N.S. 21; 32 W. R.

A common
betting house.

Act for
suppression of
betting houses.
450

No house, &e.
to be kept for
purpose of
owner, &¢.
betting with
other persons.

BETTING HOUSES.

“Such was the business, and it was confined chiefly to
offices or houses. It was found that those offices or houses
had a tendency to bring many persons to ruin, and
especially to lead clerks and servants to spend money in
gambling. It was for the suppression of that class of
betting that the Act was passed. The preamble of it states
exactly what the Legislature desired to suppress.”

The Act is entitled, “An Act for the Suppression of Bet-
ting Houses,” and recites that ‘‘a kind of gaming has of late
sprung up tending to the injury and demoralisation of impro-
vident persons by the opening of places called betting houses
or offices, and the receiving of money in advance by the
owners or occupiers of such houses or offices, or by other
persons acting on their behalf, on their premises to pay
money on events of horse races and the like contingencies.”
This preamble is repealed by the Statute Law Revision
Act, 1892 (d), but such repeal is not to affect the construc-
tion of the Act (ce), and it may, therefore, still be referred
to for such purpose.

For the suppression of such places, the statute 16 & 17
Vict. c. 119, s. 1, enacts that “no house, office, room, or
other place shall be opened, kept, or used for the purpose
of the owner, occupier, or keeper thereof, or any person
using the same, or any person procured or employed by or
acting for or on behalf of such owner, occupier, or keeper,
or person using the same, or of any person using the same,
or of any person having the care or management or in any
manner conducting the business thereof, betting with persons
resorting thereto; or for the purpose of any money or
valuable thing being received by or on behalf of such
owner, occupier, keeper, or person as aforesaid, as or for
the consideration for any assurance, undertaking, promise,
or agreement, express or implied, to pay or give thereafter
any money or valuable thing, on any event or contingency
of or relating to any horse race, or other race, fight, game,

* sport, or exercise, or as or for the consideration for securing

Betting houses
to be gaming

the paying or giving by some other person of any money
or valuable thing, on any such event or contingency as
aforesaid; and every house, office, room, or other place
opened, kept, or used for the purposes aforesaid, or any of
them, is hereby declared to be a common nuisance and
contrary to law.”

By s. 2, every house, room, office, or place opened, kept,

(d) 55 & 56 Vict. c. 19. (e) Ibid. s. 1.
BETTING HOUSES. 451

houses within
8 & 9 Vict.
c. 109.

or used for the purposes aforesaid, or any of them, shall be
taken and deemed to be a common gaming house, within
the meaning of the statute 8 & 9 Vict. c. 109.

And by s. 8, “ any person who, being the owner or occu- Penalty on
pier of any house, office, room, or other place, or a person peice eur
using the same, shall open, keep, or use the same for the betting Louse:
purposes hereinbefore mentioned, or either of them; and
any person who, being the owner or occupier of any house,
room, office, or other place, shall knowingly and wilfully
permit the same to be opened, kept, or used by any other
person for the purposes aforesaid, or either of them ; and
any person having the care or management of or in any
manner assisting in conducting the business of any house,
office, room, or place, opened, kept, or used for the purposes
aforesaid, or either of them, shall, on summary conviction
thereof before any two justices of the peace, be lable to
forfeit and pay such penalty, not exceeding one hundred
pounds, as shall be adjudged by such justices, and may
further be adjudged by such justices to pay such
costs attending such conviction as to the said justices may
seem reasonable ; and on the non-payment of such penalty
and costs, or in the first instance, if to the said justices it
shall seem fit, may be committed to the common gaol or
house of correction, with or without hard labour, for any
time not exceeding six calendar months (/).”

Section 1 of this Act creates two separate and distinct
offences, namely, keeping, &c., the places referred to, first,
for the purpose of betting with persons resorting thereto,
and, secondly, for the purpose of receiving deposits on
bets (g). In order, therefore, to sustain a conviction for
the first of these offences, it is sufficient that the justices
should have been satisfied that the place im question was
kept or used for the purpose of the defendant betting with
persons resorting thereto, without any proof of the receipt
of money by way of deposit on bets (#). The betting

Section 1
creates two
distinct
offences.

distress to satisfy any such sum.

(f) So much of this section as
prescribes the term of imprisonment
for nonpayment of penalty and costs
is repealed by the Summary Jurisdic-
tion Act, 1884 (47 & 48 Vict. v. 43),
s. 5 of the Act of 1879 (42 & 43
Vict. ec. 49), providing a general
scale of imprisonment for nonpay-
ment of any sum of money adjudged
to be paid by a conviction, or in re-
spect of the default of a sufficient

Under s. 17 of the latter Act, the
defendant may elect to be tried by a
jury instead of being dealt with
summarily

(9) Bond v. Plumb, [1894] 1
Q. B. 169; 10 R. 44; 70 L. T.,
N.S. 405; 42 W.R. 222; 58 J.P.

168.
(i) Ibid.
What is a
“place.”

Doggett v.

Catterns.

BETTING HOUSES.

aimed at by the first part of the section may or may not be
ready-money betting; whilst the second part is more
directly aimed at ready-money betting (‘). If a person
uses a part of a house, ¢.g., the bar of a public-house, for
the purpose of meeting the persons with whom he intends
to bet, he is using it for the purpose of betting with persons
resorting thereto, and may therefore be convicted under the
first part of the section, even if the betting is ready-money
betting, and the money is always handed over to him out-
side the door of the house (i). But in order to sustain a
charge under the second part of the section it is necessary
to prove the receipt of money by way of deposit on bets inside
the house alleged to have been used for the purpose (7).

A licensed person who opens, keeps, or uses, or suffers his
house to be opened, kept, or used, in contravention of this
Act, is liable to conviction under section 3, notwithstanding
the provisions of section 17 of the Licensing Act, 1872,
which imposes a lower penalty for the like offence (m).

What constitutes a “place’’ within the meaning of the Act
is a question which has several times occupied the attention
of the Courts. Whether or not a locality alleged to have
been used for either of the purposes prohibited by section 1 is
such a place, is a question of fact to be determined by the
tribunal before which the matter comes for adjudication,
having regard to the circumstances of each particular case (n).

In the case of Doggett v. Catterns (0), the defendant, a
betting agent and bookmaker, was in the habit of standing
under certain trees in Hyde Park, and there making
bets on horse races and receiving deposits. The plaintiff
having made a bet with him, and paid his deposit,
brought an action for the return of the deposit, and it was
held by the Court of Common Pleas that the defendant
had brought himself within the meaning of this Act, quite
as much as if he had carried on his betting transactions
ina room or booth, and that the plaintiff was therefore,
under section 5 (p), entitled to recover back his deposit in
an action for money had and received. But this decision

(‘) Reg. v. Worton, [1895] 1 420. See also ante, p. 440.

Q. B. 227, 230; 64 L. J., M. C. (n) Reg. v. Preedy, 17 Cox, C.C.

74; 72 L. T., N. 8. 29—C. C. R. 483, at p. 438, per Hawkins, J.

per Lord Russell, C.J. (0) Doggett v. Catterns, 19 C. B.,
k) Ibid. N.S. 765; 34 L.J., C. P. 159; 12
th Davis vy. Stephenson, 24 Q. B. LL. T., N. 8. 355; 138 W. RB. 290—

D. 529; 59 L. J., M. C. 73; 62 Ex. Ch.

L. T., N. 8. 436; 38 W. R. 429. (py) 16 & 17 Vict. c. 119. See
(m) Sim v. Pay, 58 L.J., M. C. post, p. 468,

39; 60 L. T., N. 8. 602; 53 J.P.
BETTING HOUSES.

was reversed by the Exchequer Chamber, and Pol-
lock, C.B., was of opinion that such a construction of the
Act was supplemental legislation; but concurred with
the judges in the Court below in thinking that a mere
spot, although not a “house,” “office” or “room,” would
not alone prevent it from being a place within the Act.
But he thought it must be a place capable of having an
owner or occupier, which that was not. There the defen-
dant resorted to a spot by a tree. The crowd might push
him away in moving about. There was no fixity of tenure
even for the daytime. He had no more exclusive occupa-
tion of the spot than anyone else in the park.

Crompton, J., Channell, B., and Blackburn, J., were of
the same opinion. But Bramwell, B. (Mellor, J. and
Piggott, B., concurring), whilst agreeing that the judgment
should be reversed, did so on another ground, viz., that the
locality in question was not ascertained, and therefore did
not constitute a “place”? within the meaning of the Act.

Doggett v. Catterns was considered by Hawkins, J., in
Reg. v. Preedy (q), saying that the case “has often been
cited as deciding that a man who, day after day, at a table
placed under a tree in Hyde Park, carried on his business
of betting, receiving money In advance on bets on horse
races, could not be legally convicted under section 3. It is
quite true that there are expressions used in the judgment
in the Exchequer Chamber which afford colour to that
notion. Carefully considered, however, the case will be
found to decide nothing of the sort. It was not the case
of a prosecution under section 3 at all, but was an action
brought under section 5 of the Act to recover hack a sum
of money which the plaintiff had deposited with the defen-
dant on bets on horse races.” And after referring to sec-
tions 4 and 5 of the Act (as to which see post, pp. 467, 468),
continuing: “Not a word was said in either of those two
sections as to recovering back money received by a person
merely using the house or place. As, therefore, money
can only be recovered back from the owners or occupiers
or persons acting for them, it stands to reason that it is a
condition precedent to the recovering back of the money, that
the person from whom it is sought to be recovered shall be an
owner or occupier of the house. This accounts for the
opinion expressed by Pollock, O.B., and assented to by
Crompton, J., Channell, B., and Blackburn, J., that a place

(g) 17 Cox, OC. C. 438, at pp. 440, 441.

453
454

Temporary
structure
adjoining

Trace-course.

Shaw v.
Morley.

BETTING HOUSES.

to be within the statute (ji.¢., sections 4 and 5) must be
capable of having an owner or ‘occupier. . . . Asa
decision upon the question whether the plaintiff was entitled
to recover under section 5, it is obviously right. If read
as an opinion upon a question not before the Court, viz.,
whether the defendant might have been convicted under
section 8, it is difficult to say that it is satisfactory. For
my own part, I think it is not essential to a place within
section 3 that it should have an occupier, or that the per-
son who uses it for the illegal purpose should have permis-
sion to do so from either owner or occupier. The right or
title to be upon the place seems to me to be utterly immaterial,
if in fact there is an illegal user of it (r).”

In Shaw v. Morley (s) the facts were as follows :—On
land adjoining a race-course, and just outside an inclosure
reserved for ticket-holders, was a long strip of ground of
six feet wide, bounded on one side by an iron railing,
which surrounded the inclosure, on the other side by a
permanent wooden paling facing the open ground. Within
this strip were placed temporary wooden structures, in
which during the races the business of betting was carried
on. They had desks fronting both ways, and at each desk
was a clerk with a book, and a person standing in front
of each desk conducted the business on behalf of the person
who rented the strip of land, and the bets were recorded
by the clerk. At one of these structures the defendant
conducted this business. On appeal from a conviction
under section 38, it was contended on behalf of the appel-
lant, that an “office” or ‘“ place” to be within the Act,
must be ejusdem generis with a “house” or “room,” which
this was not, being only a temporary wooden structure, not
even covered with a roof, and incapable of answering the
purposes served by the betting houses which the Act was
meant to suppress ; but it was held that it was an “ office”
and a “‘ place” within the meaning of the statute, and that
the appellant was rightly convicted; Kelly, O.B., expressly
saying that it did not matter whether there was a roof or
none, or whether the structure was moveable or fastened
to the earth.

Martin, B., was of the same opinion, adding : “ What it

(r) A similar view of the ratio [1896] 1 Q. B. 295; 40S. J. 278.
decidendi in Doggett v. Catterns (s) L. R., 3 Ex. 187; 37 L. J.,
appears to have been adopted by M.C. 105; 19L. T.,N.S.15; 16
Lindley and Kay, L.JJ.; in the W. R. 763.
recent case of Liddell v. Lofthouse,
BETTING HOUSES.

most resembles is those movable offices on wheels in which
merchants conduct their business of lading and unlading
ships in the docks of Liverpool; and I have no doubt that
such a structure would be an office or a place within the
meaning of the Act. But this was more: it was a fixed
place.”

In Bowes v. Fenwick (¢), the appellant was on a race-
course, standing on a stool, over which was a large umbrella,
similar to a carriage umbrella, capable of covering several
persons, the stock being made in joints like that of asweep’s
brush, so as to be taken in pieces, and it was fastened in
the ground with a spike. The umbrella, when opened, was
seven or eight feet high. It was a showery day; but the
umbrella was kept up rain or dry. On the umbrella was
painted in large letters, “ G. Bowes, Victoria Club, Leeds.”
There was also a card exhibited on which were the words
“« We pay all bets first past the post.’ Bowes was calling
out offering to make bets; and he was seen to make
bets, the money being deposited with him, and for which
he gave aticket. On a case stated by justices, the question
for the opinion of the Court was, whether the stool and
umbrella, used as aforesaid by the appellant, did constitute
a “place” within the terms of section 3 of the Act. It
was held that they did, and the conviction was therefore
affirmed ; Lord Coleridge, C.J., in the course of his judg-
ment (w), saying: “ It is plain that the appellant was (pro-
vided the stool and umbrella constituted an office, room, or
place within the meaning of the Act) publicly using them for
a purpose prohibited by the Act. The only question raised
before us was, whether or not they did constitute an office,
room, or other place. Now the thing described clearly was
not a house or room. Was it an office or other place?
Possibly it might be said to be in some sense an office: but
I am of opinion that, at all events, it was a ‘place.’ It
was an ascertained spot where the appellant, for the time
at least, carried on the business of betting with all persons
who might resort thither for that purpose. The card con-
nected with the umbrella and inscription upon it clearly
indicated a fixed and ascertained place used by the appel-
lant for a purpose prokibited by the Act.”

In Gallaway v. Maries («), the respondent and a com-

() LR. 90. P. 339; 43L.J., _ (2) 8 @ B.D. 275; 51 L. J.,
M. C. 107; 30 L. T., N. S. 524; M.C.53; 45 L. T., N.S. 763; 30
22 W. R. 804. W.R. 151.

(uw) L. R., 9 C. P. at p. 344.

Umbrella on
race-course.
Bowes v.
Fenwick.

Moveable

or
456

box within
ring.
Gallaway v.
Maries.

Defined spot
in open space.
Liddell v.
Lofthouse.

BETTING HOUSES.

panion, having paid for admission, were in a railed in-
closure of the grand stand at a race-meeting. The
companion stood on a small wooden box not attached to
the ground, and he and the respondent called out offermg
to make and making bets with other persons. The
companion received the money for bets made, and the
respondent booked the same. They stood together in one
place within the enclosure during the races; and it was
held that the fixed and ascertained spot, defined in the
inclosure by the box at which the respondent orally adver-
tised his willingness to bet, was a “place” used by him
for the purpose of betting with persons resorting thereto;
Grove, J., in the course of his judgment, saying : “I think
all the cases show that a ‘place’ to be within the statute
must be a fixed ascertained place, occupied or used so far
permanently that people may know that there is a
person who stands in a particular spot indicated by a
certain definite mark with whom they may bet. I do not
decide whether a person standing on a carriage step or in
a circle where the turf was cut away, or where a little
heap of stones was put down during the races, would be
within the Act if he offered to bet there. But I am far
from saying that he would not be so. Here, however, in
my opinion, was a place within the meaning of the Act.”
Liddell v. Lofthouse (y) was an appeal from a decision
of justices dismissing an information under section 3 against
the respondent for using a certain open space of ground on
the bank of the river Tees, called Hubback’s Quay, for
the purpose of betting with persons resorting thereto. It
appeared that upon a part of this open space a timber
hoarding for advertisements had been erected some three
years previously, which was supported by some sixteen
stays driven into the ground at regular intervals. During
three days of the Ascot race-meeting, the respondent took
up his position at one of these stays, leaning against it, and
using it as a rest for his body, and was there seen to
make bets. He was not seen to bet on other portions of
the quay, the whole of which, including the site of the
hoarding, was open to the public. For the appellant it was
contended that the respondent was using a place for the
purpose of betting, and only went to this particular place
to make a book on the races. For the respondent it was
contended that this was not a place within the Act.

(y) [1896] 1 Q. B. 295; 31 L. J.,N.C. 129; 408. J. 278.
BETTING HOUSES.

There was no evidence of the ownership of the land; it
was not inclosed; the public frequenting it were not charged
for admission ; and it was not sufficiently circumscribed or
defined to constitute a place. It was held, distinguishing
Doggett v. Catterns (z), that the justices ought to have
convicted, as the locality was sufficiently defined to con-
stitute a place within the meaning of section 3.

In Eastwood v. Miller (a), the appellant was the occupier
of certain inclosed grounds, exceeding three acres in extent,
in which a pigeon-shooting match, and afterwards a foot
race, took place, and into which the public were admitted
by ticket. Among the persons admitted to the grounds
were two bookmakers who, when the shooting match was
about to take place, were shouting out ‘‘20 to 2 on the
match.” Two men went up to one of the bookmakers and
made a bet with him, paying a deposit and receiving a
ticket in exchange. Whilst the match was proceeding
another bet was taken, and persons were shouting all over
the grounds. The appellant could hear what the book-
makers and other persons said, but did not take any part or
say anything. Betting also took place on the foot-race.
It was held that there was evidence to justify the magis-
trates in coming to the conclusion that the inclosure was a
“place” within the meaning of the Act, and also that the
appellant permitted it to be used for the purpose of betting.

In Haigh v. Town Council of Sheffield (b), the appellant
had been convicted of knowingly permitting a place of
which he was the occupier to be used for the purpose of
illegal betting. At the hearing it was proved that he was
the tenant of a piece of inclosed ground used for cricket,
foot-racing, and other games and sports. On the day
named in the summons foot-racing took place in this
inclosure, to which persons were admitted on payment
of sixpence. Within the inclosure, and among the
spectators, some fifteen or twenty professional bettors stood
on chairs and stools in different spots, calling out the odds
on the various runners, and betting with different persons.
The appellant knew what was going on but took no steps
to prevent it, although he might have done so if he had
been so minded. On behalf of the appellant recourse
was again had to the argument that in order to constitute

(z) Ante, p. 452. (b) L. R.,10 Q. B. 102; 44 L.J.,
(a) L.R. 9 Q. B. 440; 48L.3., M.O.17; 81 L.T., N. 8. 586; 28
M. C. 139; 30 L. T.,N. 8.716; W.R. 547.

C.
22 W. R. 799.

457

Inclosed area.
Eastwood v.
Miller.

Haigh v.
Sheffield.
458

Snow v. Hill.

BETTING HOUSES.

a “place” the locus in quo must be ejusdem generis with a
house, office, or room; and it was also contended that
the inclosure could not be said to have been used for
the purpose of betting, since the primary object for which
it was kept was foot-racing, &e., and it was not shown to
have been habitually used for betting. But the Court
(Blackburn, Mellor, and Lush, JJ.), were unanimous in
holding that the inclosure was a “place,” and that the
appellant had permitted it to be used for the purpose of
betting, and the conviction was affirmed accordingly.

This case and that of Eastwood v. Miller would appear to
constitute a direct authority for saying that an iclosed
area of considerable extent may be a “ place”’ within the
meaning of the Act, and that a person using it or permitting
it to be used for either of the purposes prohibited by section
1, is liable to conviction under scction 3, even though the
unlawful user be upon one occasion only, and the primary
object for which it is kept be a lawful one (c).

In Snow v. Hill (d), the appellant had been convicted
upon an information charging him with using a certain
place, to wit, a field, for the purpose of betting with persons
resorting thereto. At the hearing it was proved that dog-
races were held in an inclosed field of about five acres mm
extent hired for the purpose by a committee, the public
being admitted to a reserved portion of the field on pay-
ment of a small sum; and that the appellant attended the
races, and moved about the reserved portion making bets
with persons there. There was nothing to show that he
was a professional betting man. It was held that he did
not use any place for the illegal purpose charged in the
information, and the conviction was quashed accordingly.
At first sight it is somewhat difficult to reconcile the
decision in this case with those in Huastwood v. Miller and
Haigh v. Town Council of Sheffield, above referred to, but
when carefully examined the judgment would seem to turn
not so much upon the question whether the reserved portion
of the field was a ‘place,’ as upon the conduct of the
appellant, the Court being apparently of opinion that he
was merely one of the persons resorting thereto, and there-
fore not guilty of any offence against the Act (e).

(ce) See also Jenks v. Turpin, 13  M.C.95; 52 L. T., N.S. 859; 33
Q. B. D. 505; Rey. v. Preedy, 17 W.R. 475.
Cox, C. C. 433; Hornsby v. Raggett, (e) See Reg. v. Preedy, 17 Cox,
[1892] 1 Q. B. 20. C. C. at p. 443, per Hawkins, J. ;
(@) 14 Q. B. D. 588; 54 L. J., — Hornshy v. Raggett, [1892] 1 Q. B.
BETTING HOUSES.

In Scotland, however, the argument that a “place”
must be ejusdem generis with a house, office, or room, has
been adopted; it having been held that an inclosed race-
course some twenty acres in extent was not within the Act,
and that even if it were so, the proprietor, who saw that
betting was being carried on by a professional betting man
(who had resorted thither with others of the general public
en the occasion of certain races), and did not attempt to
stop the betting, though he gave no special facilities, was
not thereby liable under the Act as having knowingly and
wilfully permitted the race-course to be used by another
person for the purpose of betting (/).

In Reg. v. Preedy (g), Hawkins, J., in the course of a
considered judgment in which he submits the cases on this
subject to an elaborate and critical review, says:—‘“ In all
the cases it will be found that one essential requisite to the
constitution of such a place is that it must, to adopt the
expression of Brett, J., in Bowes v. Fenwick (h), be ‘ fixed
and ascertained.’ It must, too, be a place to which, at the
time when the offence is charged to have been committed,
persons were resorting, though with what primary object
they were so resorting is, in my judgment, immaterial; the
Act is silent upon that point. The temptation to gamble
by betting was what the Act was intended to check, and
the temptation to bet would be equally held out by a pro-
fessional betting man plying his avocation in a crowd of
persons assembled for the most innocent purpose un-
connected with sport, as it would in a crowd of persons
gathered together to witness the sport of racing. It need
not be enclosed within walls or fences, or bounded by any
defined line. Furthermore it may extend over a consider-
able area, even acres of ground. Were it otherwise many
race-courses might be pointed out upon which a betting
man might with impunity carry on such operations as the
statute was intended to suppress. It must not, however,
be supposed that I intended to say that a place to come
within the statute may be unlimited in its area; on the
contrary, I am of opinion that, though it may be bounded
by no defined line, it must, nevertheless, be limited in
extent, to the area occupied by the persons congregated
together, and resorting to it, and to such a space that a

at p. 24, per A. L. Smith, J.; Sess. Cas., 4th Series, 9.
Whitehurst v. Fincher, 62 L. T., (g) 17 Cox, C. C. 483, at p. 488.
N. 8. 433. (A) L. R., 9 C. P. 339.

(f) Henretty v. Hart, 13 Ct. of

459

Decision in
Scotland.

A “place”
must be
fixed and
ascertained.
460

But need not
be a particular
spot,

“ Place”
inseparable
from user,

What is
unlawful

user.

BETTING HOUSES.

person carrying on his business there as a betting man,
might fairly and reasonably be said to be doing so in the
immediate presence of those so congregated together... .
It is true that in one or two of the cases expressions of
judges may be found (not material to the question before
them) which might at first sight be thought to indicate
their opinion to be that the word ‘place’ in the statute
means some particular ascertained spot just sufficient for a
man to stand on.” The learned Judge then refers to the
expressions of Lord Coleridge, C.J.,1n Bowes v. Fenwick
(ante, p. 455), and Grove, J., in Gallaway v. Maries (ante,
p- 456), and continues :—‘ I can hardly think these learned
judges intended by these expressions to lay it down as law
that nothing would satisfy the word ‘ place’ unless it was
some particular spot on which a person stood, or which was
appropriated by him exclusively for his own use—as a stall
or standing at a fair or market would be—or that they meant
to convey more than this, that a ‘ place’ must be fixed and
ascertained. I can find no authority for saying that the
word ‘place’ ought to have so limited an interpretation put
upon it; indeed there is direct authority to the contrary.”
In support of this view he then proceeds to cite the cases of
Eastwood v. Miller (ante, p. 457), and Haigh v. Town Council
of Sheffield (ante, p. 457), where, as we have already seen,
inclosed areas of considerable extent were held to be places
within the meaning of the Act.

From the foregoing cases it will be seen that it is difficult,
if not impossible, to separate the question of a “place” from
that of user, in a satisfactory manner. Where the user of a
“place” for the purpose of illegal betting is charged both
questions have to be considered, as the question whether a
given locality is a place would appear to depend to some
extent on the use to which it has been put by the party
charged. In the case of a house or room, however, the
only question to be determined is whether the conduct of
the party charged is such as to constitute a user of the
premises for either of the purposes prohibited by the Act.
‘Whether there has been such a user is a question of fact to
be determined in each case by the circumstances surround-
ing it (7).

With reference to the question what is unlawful user
of a place under section 3, Hawkins, J., in the course of his
judgment in Reg. v. Preedy (7), says: “It was certainly

(t) Reg. v. Preedy, 17 Cox, ©, C. (J) 17 Cox, C. C. at pp. 441, 442.
at p. 443, per Hawkins, J.
BETTING HOUSES.

not the intention of the Act to make all betting illegal, and
it is just as lawful now as it ever was for persons to bet
together casually at any place, and as often as, and to any
extent they please. ‘The mischief the Act was pointed at
was as expressed by Erle, C.J., in Doggett v. Catterns:
‘The habit of using a particular place by persons skilled in
gambling and betting, for the purpose of luring the ignorant
and imprudent to the ruinous courses to which the vice of
gambling so frequently leads,’ and for the purpose of check-
ing that habit, it was forbidden to any person to use any
place for the purpose of systematically carrying on a busi-
ness of betting with or receiving deposits on bets from
persons resorting thereto. It is not the mere act of betting
frequently, or with many persons; it is the carrying on the
business of betting and announcing such business to those
assembled, and inviting the persons resorting to the place
to bet with such bettors, which the law was intended to
suppress.”

“With reference to what constitutes a user of a place,”
says the same learned Judge (x), “I am of opinion that it
is not necessary that it should be confined to one particular
spot within the ambit of the place, or that the business
should be announced in any particular manner, or that the
use should be confined to one particular person. A man
may just as well use a place by walking about from spot to
spot within the area occupied by the persons resorting
thereto, as he may by seating himself on a high stool in
one particular spot. Nobody would say a man did not use
a house because he shifted his operations from room to
room as he found it most convenient, or that he did not use
a room because, instead of sitting on a chair, or standing in
a fixed spot, he walked up and down it. . . . As to
the mode of using a place for the illegal purposes mentioned,
it is immaterial what particular means are resorted to for
those purposes. A man may stand on a stool in one spot,
or he may sit at a desk, or he may walk here and there in
all parts of the place amongst the assembled multitude,
indicating in any way he may think fit or most attractive,
his business or avocation, and his readiness to bet with the
persons who are assembled at the place. To use all parts
of a place in this manner seems to me to be a more effectual
use of it than to confine himself to a particular spot. He
may use as his attraction or advertisement a tall painted

(k) 17 Cox, C. C. at pp. 442, 4438.

461

What consti-
tutes user.

Mode of
using.
Persons
liable.

User by

occupier.

BETTING HOUSES.

hat, or adopt other singularity of dress, or may use a
placard or a flag, or exercise his voice to announce and call
attention to his readiness to bet in the manner forbidden,
which of these methods he adopts is absolutely immaterial.”

The persons rendered liable by the statute are (1) the
owner or occupier of any house, &c., usmg or permitting
any other person to use the same for either of the illegal
purposes, (2) a person using the same for either of such
purposes, and (3) any person having the care or manage-
ment of or in any manner as¢ sisting in conducting the
business of any house, &e., used for either of such pur-
poses (/).

As has already been seen, ante, p. 458, the occupier of
inclosed grounds who uses, or permits them to be used for
the purpose of illegal betting upon one oceasion only, is
hable to conviction under section 38, even though the
primary object for which such grounds are kept is a "lawful
one; and the same remark applies to a similar user of a
house or room, with the additional fact that in the latter
case no question can arise as to the occupation of any fixed
and ascertained spot (v2).

In Foote v. Butler (x), an informer had paid two visits
to the appellant's house, and had made bets with him
on some races, money passing between them; there was
further evidence that on the house being sear ched a number
of books and documents relating to betting were found,
and that certain remarks had been made by the appellant
which tended to show that he had recently used them. It
was held this was sufficient evidence to justify a conviction.

In Hornsby v. Raggett (0), it appeared that on five diffe-
rent days a bookmaker and his clerk were in the tap-room
of a beerhouse kept by the respondent, and used the same
for the purpose of betting with persons resorting thereto.
The respondent was present, and knew of and permitted
such use. The bookmaker and clerk did not occupy any
specific place in the tap-room, and had no interest or
property in the premises. It was held that the respondent
had knowingly and wilfully permitted a room to be used
for the purpose of illegal betting, and ought, therefore, to
have been convicted.

In order to convict the occupier of a house of permitting

(2) See 16 & 17 Vict. c. 119, ss. 1, 2) 41 J. ae
3, ante, pp. 450, 451. ) [1892], 1 QB 20; 6LL.J.,
(m) Reg. v. Preedy, 17 Cox, C. C. x . 24; 40 W. R. 111.

433.
BETTING HOUSES.

it to be used for the purpose of the receipt of money by
way of betting, it is necessary to prove the actual receipt of
such money inside the house in question (p). But it is im-
material whether such receipt is through the post or from
persons resorting thereto (q).

A bond fide commission agent who keeps or uses an office
for the purpose of undertaking commissions to make bets
on credit for the public at large, is clearly not within the
<ict, as he does not bet himself, but executes his clients’
commissions at Tattersall’s or some other betting club. But
a person who, although he holds himself out as a commis-
sion agent, receives money on deposit on bets on horse-
races, and pays his clients their winnings without naming
any principal as advancing the money for such purpose, is
liable to conviction for keeping his office for receiving money
on an undertaking to pay money on the event of horse-
races within the meaning of section 1; and this, notwith-
standing that he deducts a percentage from the winnings
for commission, for his conduct indicates his intention to be
responsible for the payment of the bets, and that he is really
the principal (7).

The racing coupon competitions as ordinarily carried out
by the proprietors of sporting newspapers, do not amount to
betting transactions, even though a separate payment is
required in respect of each coupon sent in after the first,
which is supplied gratis with a copy of the paper; and the
proprietor of such a paper is therefore not liable to conviction
for using the publishing office for either of the purposes
prohibited by section 1 (s).

It would appear that it is not essential to the user of a
house, &c., for the purpose of illegal betting, that it should
have an occupier, or that the person who uses it for the illegal
purpose should have permission so to do from either owner
or occupier. To again adopt the language of Hawkins, J.,
in his judgment in Rey. v. Preedy (t): ‘‘ The right or title
to be upon the place seems to me to be utterly immaterial,
if in fact there is an illegal user of it. . . . Nothing
could be easier than to evade the operation of section 3 if

(p) Davis v. Stephenson, 24Q, B. 39 W. R. 540; 55 J. P. 727; Stod-
D. 529. dart y. Sagar, [1895] 2 Q. B. 474;
(q) Wright v. Clarke, 34 J. P. 64 L. J.,M. C. 284. ‘These cases
661. have already been more fully noticed
(r) Ibid. when dealing with the subject of
(s) Caminada v. Hutton, 60 L. J., — Lotteries, ante, pp. 433, 434.
M. C. 116; 64 L. T., N.S. 572; (t) 17 Cox, G. C. at p. 441.

Person
using.

463
464

BETTING HOUSES.

a person could defend himself upon the ground that he
was a mere trespasser on the place used. If such were the
law aman might locate himself at the corner of a street,
or In an unoccupied shed, or on a vacant piece of ground
on a railway platform, and there carry on his betting opera-
tions with impunity, if only he did so without the know-
ledge of the owner or occupier. Whereas if he did so with
the permission of the owner or occupier, both would be
liable to a penalty.”

In order to support a conviction for using a house, &c.,
for the purpose of illegal betting, it is unnecessary to prove
that such house, &e., has been used for the illegal purpose
previously to the occasion in question. In other words,
the illegitimate user forbidden by section 3 is not neces-
sarily that of a house, &c., which is already a common
nuisance and a common gaming house under sections 1
and 2. Itis also immaterial that the principal user of the
house is for a legitimate purpose (w).

Where certain persons, who were ostensibly bookmakers,
went to the bar of a public-house on several occasions, and
carried on their business by betting with persons resorting
thereto, it was held that they were liable to conviction for
using a “room” or “place” for the purpose of illegal bet-
ting. And it seems that they would have been equally
lable if they had done so upon one occasion only (2).

In Reg. v. Worton (y), the defendant was convicted on
an indictment charging him with using the bar of a beer-
house on three different days, for the purpose of betting
with persons resorting thereto. It was proved that on
each of the three days the defendant was in the bar, and
a number of persons came in, took slips of paper which
were hanging on the wall, wrote on the slips the names of
the horses they wished tu back, wrapped up in the slips the
money they staked, and handed the slips with the money
inclosed to the defendant. Usually the defendant went
outside, and received the slips and money on the doorstep
of the house, but on one of the three days he received
two slips with money inclosed, in the bar. It was held
that there was evidence to go to the jury that the defendant
had used the bar for the purpose of betting with persons
resorting thereto on each of the three days, and, therefore,

(u) Reg. v. Preedy, 17 Cox, C.C. — son, 56 J. P. 182.
433. Y) [1895] 1 Q. B. 227; 64L. J.
(x) Reg. v. Preedy, 17 Cox, C.C. M.C. 74; 72 L. T., N.S. 29.
433. See also McWilliam vy. Daw-
BETTING HOUSES.

that he was rightly convicted, Lord Russell, C. J., saying :
“T am quite clear, and I understand that the other
members of the Court agree with me, that if a person
uses the bar as the defendant did, for the purpose of
meeting the persons with whom he intends to bet, he is
using it for the purpose of betting with persons resorting
thereto, even if the money is always handed over to him
outside the door of the house.”

It would seem, however, that a person who, not being a
professional betting man, makes casual bets with the persons
he comes across at any house, &c. is not a person using the
same for the purpose of betting with persons resorting
thereto, but rather one of the resorters, and is therefore
not guilty of any offence agaist the Act. In Snow v.
Hill (z), the defendant went to a reserved portion of an
inclosed field where races were being held, and walked
about making bets with various persons there; and it was
held that he was not using a place for the purpose of
illegal betting. And the same conclusion was arrived at
in Whitehurst v. Pincher (a), where the defendant went on
three successive days to the bar-room of a public house,
and made casual bets with persons he met there. In
neither of these cases was there any evidence that the
defendant was a professional betting man, and the Court
evidently regarded them merely as persons resorting, and
therefore not within the purview of the Act.

A member of a bond fide club who habitually bets there
with other members is not liable to conviction for using
the club premises for the purpose of betting with ‘persons
resorting thereto, even though he be a professional book-
maker, and the club be formed for the purpose of the
members betting with each other (3).

With regard to the liability of any person having the
care or management of the business of any house, &c.,
used for either of the purposes prohibited by section 1, it has
been held that the word “business”? means the business of
a betting-house keeper, and that the Act was not intended
to apply to any person having the care or management of
a lawful business who takes no share or part in any

(2) 14 Q. B. D. 588; 54 L. J., Q. B. 203; 64 L. J., M. C. 238;
M. C. 95; 52 L. T., N.S. 859; 33-72 L. T., N. 8. 728; 43 W. R. 556.

W. R. 475. See also Oldham v. Ramsden, 44
(a) 62 L. T.,N, 8. 483; 545.P. LL. J., C. P. 309; 32 L. TN. 8.
565. 825.

(0) Downes vy. Johnson, [1895] 2
oO. HH

465

Person having
the manage-
ment.
406

Persons
resorting
thereto.

BETTING HOUSES.

illegal betting which may take place on the premises upon
which such lawful business is carried on (c).

Slatter v. Bailey (d) is an instance of a person assisting
in the business of a betting-house keeper, although the
conviction was for using a room for the purpose of legal
betting. In that case, a house was kept by T. and his two
sons, for the purpose of betting on horse-races. One day
T. and one son sat at a table in one room receiving bets,
and the appellant and another son of T. sat at a
table in another room doing likewise, whilst persons offering
bets stood around. It was held that there was evidence
that the appellant had some part in the management of the
business, and had therefore been rightly convicted.

In Reg. v. Cook (dd), the appellant was the man-
ager of a bicycle ground. Upon an occasion when some
bicycle races were being held there several bookmakers
were present pursuing their avocation amongst a large
crowd of spectators. Placards prohibiting betting were
posted about the ground by the appellant. Some betting
took place about twenty yards from the winning-post, where
the appellant stood, acting as judge of the races. He was
aware that betting did and would take place, but could not
have wholly prevented it under the circumstances, although
he might have repressed it to a certain extent with the
aid of some constables who were present at his request. It
was held that as the business of the ground was not that of
illegal betting, he was not liable to conviction.

A conviction which alleges that the defendant unlaw-
fully had the care and management of a place used for the
purpose of other persons betting therein is bad, as this
would apply to persons betting with one another in the
ordinary way, which is not interfered with or dealt with
by the Legislature (e).

Upon a charge of keeping a house for the purpose of
betting with persons resorting thereto, it is unnecessary to
show that such persons have physically resorted to the
premises, the purpose for which the house is kept being
that which is condemned by section 1, and the offence
may be proved by showing that the house was opened and
advertised as a betting house, although no person ever
physically resorted thereto. But where no other evidence
than that of resorting is offered in support of such a charge,

(c) Reg. v. Cook, 13 Q. B. D. 377; (dd) Ubi supra.
51 L. T., N. 8.21; 32 W. R. 796. (e) Reg. v. Cook, 138 Q. B. D. at
(d) 87 J. P. 263. p. 381, per Hawkins, J.
BETTING HOUSES.

there must be evidence of physical resorting, and it is not

sufficient to show that letters and telegrams were sent to

the accused directing him to make bets with the senders;
persons sending such letters and telegrams do not resort
to the house within the meaning of the section (/).

No stronger evidence can be given of actual resorting
to a house than that of persons going there to pay money
for the purpose of ready money betting—z.e., paying the
money as a stake upon a horse on the assurance that the
defendant will pay over if the horse wins(g). Quere,
whether upon the construction that the resorting must be
physical, a case would fall within the Act where a man did
not come to the house himself, but sent messengers or
representatives to make bets for him. Dealing with this
point, Lord Russell, C. J., in delivering judgment in
Reg. v. Brown (h), says: “I should be sorry to suppose
for an instant that such a case would not be within the
statute as it stands, and would not be consistent with the
construction I have put upon the section.”

Any owner or occupier, or person acting on his behalf,
or managing or assisting in conducting the business of
any house, &c., or place opened, kept or used for any of
the above-mentioned purposes, who shall receive any
money or valuable thing as a deposit on any bet on
condition of paying any money or valuable thing, on the
happening of any event “relating to a horse-race, or any
other race, or any fight, game, sport, or exercise,” or as or
for the consideration for any agreement, &c., to pay or
give any money or valuable thing on any such event, and
any person giving any acknowledgment, security, &., on
the receipt of any money or valuable thing so paid or given,
purporting or intended to entitle the bearer or any other
person to receive any money or valuable thing on the
happening of any such event, is on summary conviction
before two justices of the peace (i) liable to a penalty not
exceeding 50/., and payment of costs, or to imprisonment
not exceeding three calendar months (A).

Any money or valuable thing received by any such person
as a deposit on any bet, or as or for the consideration for
any such agreement, &c., is to be deemed to have been re-

(f) Reg. v. Brown, [1895] 1 Q. (i) Or a police magistrate within
R119; 64 L. J., M. C. 1; 72 the Metropolitan Police District, 2 & 3
L. T.,N. 8. 22; 43 W.R. 22— Vict. ¢. 71, 8. 14.

C. 0. R. (k) 16 & 17 Vict. c. 119,. 4,
(g) Ibid. Appendix, see note (f), ante, p. 451.
(4) [1895], 1 Q. B. at p. 130.

HH 2

467

Penalty for
receivine
money, Xe.
on certain
conditions.

Money, &e.
so received
may be re-
covered from
the holder.
468

Act does not
extend to
stakes in a
race, &ec.

Penalty for
advertising,

&e.

Provisions of
Betting Act,
1874, as to
advertising.

BETTING HOUSES,

ceived for the use of the person from whom it was received,
and may be recovered with full costs in any Court of compe-
tent jurisdiction (/).

Attention should be called to the fact that section 4,
supra, does not include “ any person using the same.” It
is therefore a condition precedent to the recovering back of
the money, that the person from whom it is sought to be
recovered shall be an owner or occupier of the house (i).

The Act is not to extend to the holder of any “stakes
or deposit to be paid to the winner of any race or lawful
sport, game, or exercise,” or to be paid ‘to the owner of
any horse engaged in any race” (7); as where, for in-
stance, the owner of the second horse is entitled to receive
back his stake.

Any person exhibiting or publishing, or causing to be
exhibited or published, any placard, advertisement, &c.
making it to appear that any house, &c. or place is
opened, kept, or used for the purpose of making bets in
manner above mentiuned, or for the purpose of exhibiting
lists for betting, or with intent to induce any person to
resort to such house, &e., or place, for the purpose of
making bets or wagers in manner above mentioned, or
any person who on behalf of the owner or occupier, or
person using any such house, &c., or place, may invite
other persons to resort thereto for the purpose of making
any bets or wagers as above mentioned, is on summary
conviction before two justices of the peace (o), liable to a
penalty not exceeding 30/7, and payment of costs, or to
unprisonment not exceeding two calendar months (p).

Section 3 of the Betting Act, 1874 (87 Viet. c. 15),
further provides that where any letter, circular, telegram,
placard, handbill, card, or advertisement is sent, exhibited,
or published—(1) whereby it is made to appear that any
person either in the United Kingdom or elsewhere, will, on
application, give information or advice for the purpose of
or with respect to any such bet or wager, or any such
event or contingency as is mentioned in the principal Act,
or will make on behalf of any other person any such bet
or wager as is mentioned in the principal Act; or (2) with

(2) 16 & 17 Vict. c. 119, s. 5, Appendix.

Appendix. (0) Or a police magistrate within
(m) Reg. v. Preedy, 17 Cox, C. C. the Metropolitan Police District,2 & 3

at p. 440. See also Doggett v. Cat- Vict. c. 71, s. 14.

terns, ante, p. 452. (p) 16 & 17 Vict. c. 119, s. 7,
(n) 16 & 17 Vict. c. 119, s. 6, Appendix.
BETTING HOUSES.

intent to induce any person to apply to any house, office,
room, or place, or to any person, with the view of obtaining
information or advice for the purpose of any such bet or
wager with respect to any such event or contingency as is
mentioned in the principal Act; or (3) inviting any person
to make or take any share in or in connection with any
such bet or wager—every person sending, &c., or causing
the same to be sent, &c., shall be subject to the penalties
provided as above in the 7th section of the principal Act
with respect to offences under that section.

This enactment is confined to such bets as are mentioned
in 16 & 17 Vict. c. 119, s. 1, that is, to bets made in any
house, office, or place kept for betting, and therefore does
not apply to advertisements offering information for the
purpose of bets not to be made in any such house, &e. (9).
An advertisement of a racing coupon competition as ordi-
narily carried out by the proprietors of sporting newspapers
is not an advertisement inviting the persons who read it
to make bets on the event or contingency of or relating to
a horse-race, as such a transaction does not amount to bet-
ting within the meaning of the principal Act (r).

A justice of the peace, upon complaint made on oath, may
authorize the search of any suspected house or place by
special warrant to a constable, who may obtain necessary
assistance, and also use force if required to make an entry,
and arrest, search, and bring before a justice of the peace
all persons found there, and seize all lists, cards or other
documents relating to racing or betting (s). But the
warrant and arrest above provided for do not dispense with
the necessity of a regular information and summons giving
the defendant notice of the charges made against him ;
and the want of such information and summons will
render the proceedings on the hearing invalid (¢). The
information may be laid before one justice only (v).

An information which charged the defendant with having
on the 5th of October, and on divers other days, kept
and used a house for the purpose of betting with persons
resorting thereto, was held good as not alleging more than
one offence, and a conviction for so keeping and using the

(q) Cox vy. Andrews,12Q.B.D. 64L.J., M. C. 234.

126; 568 L. J., M. C. 34; 32 WLR. (s) 16 & 17 Vict. c. 119, s. 11,
289. Appendix.
(r) Caminada v. Hulton, 60 L. J., (t) Blake v. Beech, 1 Ex. D. 320;

M. C. 116; 64 L. T.,N. 8.572; 45 L. J.. M.C. 111; 24 L. T.,
39 W.R. 540; 555. P.727; Stod- N.S. 764. .
dart y. Sagar, [1895] 2 Q. B. 474; (u) Leev. Gold, 44 J. P. 395.

469

Power to
search sus-
pected houses,
470

Power of
Commissioners
of Police.

The levy and
application
of penalties.

Where party
neglects to
prosecute.

No appeal
from High
Court.

Extension to
Scotland.

BETTING HOUSES.

house in question on the 8th of November was therefore
upheld (z).

The warrant may issue in respect of licensed premises
as well as others (vy). And all persons found upon any
premises entered by virtue of such warrant may be arrested
whether they are actually engaged in contravening the Act
or not (z).

Within the Metropolitan Police District, and the Dublin
Metropolitan Police District, a Commissioner of Police may
authorize any superintendent of police, accompanied by
such constables as may be directed to assist him, to enter
any suspected house, &c., or place, and to use force if
necessary, and to take into custody all persons found there,
and to seize all lists, cards, or other documents relating to
racing or betting (a).

Penalties and costs may be levied by distress (b). Half
of every pecuniary penalty is to be paid to the informer,
and the remaining half to be applied in aid of the poor
rate of the parish or extra-parochial place where the
offence was committed (c).

In case a person who has laid any complaint or informa-
tion do not appear at the time at which the defendant may
have been summoned to appear, or on the adjournment of
the summons, or neglect to prosecute, any justices having
authority to adjudicate may authorize some other person
to proceed on such summons, or take out a fresh one, as
if the previous summons had not been granted (d).

An appeal is given to quarter sessions (¢), but the
certiorari 1s taken away (/).

A conviction before justices under this Act is a “ criminal
cause or matter’ within section 47 of the Judicature Act,
1878, and the Court of Appeal has, therefore, no juris-
diction to hear an appeal from a judgment of the High
Court quashing the conviction on a case stated by justices (9).

This Act (4) did not extend to Scotland, but by section 4
of the Act of 1874 (87 Vict. c. 15), it is so extended with
the following modifications and provisions :—(1) The term
‘distress’ shall mean poinding and sale; the term “ mis-

(x) Onley v. Gee, 30 L. J., M. C. (6) Ibid. s. 8.
222; 4 L. T., N. 8. 338; 9 W. R. (c) Ibid. ». 9.
662. (d) Ibid. s. 10.
(y) Anderson v. Hume, 46 J. P. (e) Ibid. s. 13.
825. (Ff) Ibid. s. 14.
() Tbid. (9) Blake v. Beech, 2 Ex. D. 335;
(q) 16 & 17 Vict. c. 119,ss. 12, 386 L. T., N. 8. 723.
18, Appendix. (2) 16 & 17 Vict. c. 119.
BETTING HOUSES.

demeanor” shall mean a crime and offence. (2) All
offences or penalties under the Acts shall be prosecuted and
recovered before the sheriff of the county or his substitute
in the Sheriff Court, at the instance of the procurator fiscal,
or of any private person, under the provisions of the
Summary Procedure Act, 1864, and the jurisdictions, powers,
and authorities necessary for the purposes of this section
are hereby conferred on the sheriffs and their substitutes.
(3) Every pecuniary penalty which is adjudged to be paid
under either of the Acts is to be paid to the clerk of the
Court and by him accounted for and paid to the Queen’s
and Lord Treasurer’s Remembrancer on behalf of Her
Majesty. (4) The 13th and 14th sections of the principal
Act are not to apply to Scotland, but any person who is
convicted under either of the Acts may appeal against such
conviction to the High Court of Justiciary, in the manner
prescribed by such of the provisions of the 20 Geo. 2, ¢. 48,
and any Acts amending the same, as relate to appeals in
matters criminal, and by and under the rules, limitations,
convictions and restrictions contained in the said provisions.

The Betting and Loans (Infants) Act, 1892.

As the portions of this Act which relate to the inciting
infants to betting are to some extent analogous to the
legislation on betting houses dealt with in the preceding
pages of this chapter, their insertion in this place is deemed
appropriate.

Section 1 of this Act (55 Vict. c. 4) enacts as follows :—
(1) “If anyone, for the purpose of earning commission,
reward, or other profit, sends or causes to be sent to a
person whom he knows to be an infant any circular, notice,
advertisement, letter, telegram, or other document which
invites, or may reasonably be implied to invite, the person
receiving it to make any bet or wager, or to enter into or
take any share or interest in any betting or wagering trans-
action, or to apply to any person or at any place with a view
to obtaining information or advice for the purpose of any
bet or wager, or for information as to any race, fight, game,
sport, or other contingency upon which betting or wagering
is generally carried on, he shall be guilty of a misdemeanor,
and shall be liable, if convicted on indictment, to 1mprison-
ment, with or without hard labour, for a term not exceeding
three calendar months, or to a fine not exceeding 1002,

471

Penalty on
inciting
infants to
betting.
472

Presumption
ot knowledge
ot infancy.

Person
charged a
competent
witness.

A common

gaming house.

Indictment
for keeping
one.

GAMING HOUSES,

or to both imprisonment and fine, and if convicted on
summary conviction, to imprisonment, with or without hard
labour, for a term not exceeding one month, or to a fine
not exceeding 20/., or to both imprisonment and fine.
(2) If any such circular, notice, advertisement, letter, tele-
gram or other document as in this section mentioned, names
or refers to any one as a person to whom any payment may
be made, or from whom information may be obtained, for
the purpose of or in relation to betting or wagering, the
person so named or referred to shall be deemed to have
sent or caused to be sent such document as aforesaid, unless
ke proves that he had not consented to be so named, and
that he was not in any way a party to, and was wholly
ignorant of, the sending of such document.”

By section 8, if any such circular, notice, advertisement,
letter, telegram, or other document as in section 1 men-
tioned, is sent to any person at any university, college,
school, or other place of education, and such person is an
infant, the person sending or causing the same to be sent
shall be deemed to have known that such person was an
infant, unless he proves that he had reasonable ground for
believing such person to be of full age.

And by section 6: “In any proceeding against any
person for an offence under this Act such person and his
wife or husband, as the case may be, may, if such person
thinks fit, be called, sworn, examined, and cross-examined
as an ordinary witness in the case.”

Gaming Houses.

All common gaming houses are nuisances in the eye of
the law, not only because they are great temptations to
idleness, but because they are apt to draw together great
numbers of disorderly persons; they promote cheating and
other corrupt practices, and incite to idleness and avaricious
ways of gaining property (*).

The keeper of a common gaming house is indictable and
punishable as for a misdemeanor with fine or imprisonment,
or both ; and his wite may be jomed with him, or they may
be indicted severally (A).

(k) Hawk. c. 32, tit. Common B. & C. 272; 2 D. & R. 431. See
Nuisances, 66; Rex v. Deron, 10 also Jenks v. Turpin, 13 Q. B.D.
Mod. 336; Rer v. Mason, Leach, 505.

C. C 548; Rer v. Rogier, 1
GAMING HOUSES.

The indictment would seem to be good if it merely
charges the defendant with keeping a common gaming
house (7) ; as where the person is indicted for the offence
of keeping a house where people assembled to play rouge
et notr (m).

And as it is an indictment for a public nuisance, and not
for any matter in the nature of a private injury, any person
may go on with it even against the consent of the original
prosecutor, it he has discontinued it (7).

Under 25 Geo. 2, ¢. 36 (0), provision is made for the
indictment of “any person who shall act or behave him or
herself as master or mistress, or as the person having the
care, government, or management of any gaming house, &c.”

To encourage prosecutions for keeping gaming houses,
&e., two inhabitants of any parish or place may give notice
in writing to the constable of any person there keeping a
gaming house, &c., upon which notice the constable is to go
with such inhabitants to a justice of the peace, who on
making oath that they believe the contents of such notice
to be true, are each to enter into a recognizance in the sum
of 207. to give evidence, and the constable into a recogniz-
ance in the sum of 307. to prosecute at the next general or
quarter sessions or assizes ().

After the constable has entered into such recognizance to
prosecute, the justice is to make out his warrant to bring
the accused person before him to be bound over to appear
at the general or quarter sessions or assizes, there to answer
such bill of indictment (7) as may then be found for the
offence. And the justice may, in his discretion, take
security for such person’s good behaviour in the mean-
time (r).

The overseers of the poor of the parish or place are to
pay the constable the reasonable expenses of prosecution,
and on conviction 10/7. to each of the two inhabitants, on
penalty of forfeiting double the sum (s).

Any constable who may neglect or refuse upon such
notice to go before any justice of the peace, or to enter
into such recognizance, or may be wilfully negligent in
carrying on such prosecution, is for every offence to forfeit
207. to each inhabitant giving such notice (f).

(2) Rex v. Rogier, 1 B. & C. 272;

(a) The certiorari in all cases is
2D. & R. 431

taken away by s. 10. See Reg. v.

(m) Ibid. Sanders, 9 Q. B. 2386.

(n) Rex v. Wood, 3 B. & Ad. 657. (r) 25 Geo. 2, c. 36, s. 6.
0) 25 Geo. 2, u. 36, ss. 6, 8. (s) Ibid. s. 5.

() Ibid. s. 5. (t) Ibid. s. 7.

473

Charge in the
indictment.

Any person
may go on
with it.

Statutory
provisions for
an indict-
ment.

Notice by
two inhabit-
ants.

Binding over
the party
accused.

Duty of
overseers of
the poor.

Penalty where
constable
neglects his
duty.
474

Setting up or
playing at
hazard, &.

Sufficient
evidence that
hazard has
been played.

What is a
common
gaming house
under 8 & 9
Vict. v. 109.

GAMING HOUSES.

Any person setting up the games of the ace of hearts,
pharaoh, basset or hazard, is liable on summary conviction
before a justice of the peace to a penalty of 2002 And
any person playing or staking at any of the games is liable
in the same manner to a penalty of 507. (w).

On an information before two magistrates under this
statute (7) “for setting up, maintaining and keeping a
certain game, to be determined by the chance of dice,
called hazard,” the proof was that certain persons were
found in the house playing at hazard with cards; that a
dice-box and dice were found on the table the subsequent
day, and these facts were held sufficient to warrant the justices
to conclude that the game of hazard was there played (y).

Under 8 & 9 Vict. c. 109, a common gaming house,
“contrary to law,” may be a place either where people
play an unlawful game against a bank, or where a lawful
game is so arranged that the chances are in favour of the
table. This is set out with particularity in the 2nd section
of the statute (s), which after reciting that ‘ whereas
doubts have arisen whether certain houses, alleged or
reputed to be open for the use of the subscribers only, or
not open to all persons desirous of using the same, are
to be deemed common gaming houses,” enacts, “that in
default of other evidence proving any house or place to
be a common gaming house, it shall be sufficient in sup-
port of the allegation in any indictment or information,
that any house or place is a common gaming house, to prove
that such house or place is kept or used for playing therein
at any unlawful game, «¢. any game of chance, or any
mixed game of chance and skill (a), and that a bank is
kept there by one or more players exclusively of the others,
or that the chances of any game played therein are not
alike favourable to the players, mceluding among the
players the banker or other person by whom the game is
managed, or against whom the other players stake, play,
or bet” (6). It is immaterial whether the bank is kept
by the owner or occupier or keeper of the house, or by one
of the players (c).

(ew) 12 Geo. 2, c. 28, ss. 2, 3,
Appendix; I‘ Winnell v. Robinson,
3M. & W. 438.

(wv) 12 Geo. 2, c. 28, s. 2, Appen-
dix.

(y) Rew ¥. Liston, 6 T. R. 390.

(z) 8 & 9 Vict. c. 109, s. 2, Ap-

pendix.
(a) Jenks v. Turpin, 18 Q. B. D.

at p. 530, per A. L. Smith, J.

(2) 8 & 9 Vict. c. 109, s. 2, Ap-
pendix. For form of indictment, see
Archbold’s Criminal Pleading. As
to other evidence of a house being a
common gaming house, see post, pp-
476, 477.

(ce) Jenks v. Turpin, 13 Q. B.D.
at p. 530, per A. L. Smith, J.
GAMING HOUSES.

A house which is ostensibly kept and used as an ordi-
nary social club, but which is in reality kept and used for
the purpose of gaming, the social arrangements being merely
subsidiary to its use for the purpose of gaming, and the
club, therefore, bemg a mere sham, is a common gaming
house (d). And so, it seems, is a house which is kept and
used for a double purpose, viz., as an honest social club for
those who do not desire to play, as well as for the purpose
of gaming for those who do (e). It makes no difference
that the use of the house is limited to the members of the
club, and that it is not open to ai/ persons who may be
desirous of using it. It is not a public, but a common
gaming house which is prohibited—i.c., a house im which
a large number of persons are invited habitually to con-
gregate for the purpose of gaming (/).

In every case, except within the Metropolitan Police
District, in which the justices of peace in every shire, and
mayors, sheriffs, bailitis and other head ofhcers within
every city, town and borough, now have by law authority
to enter into any house, room or place where unlawful
games are suspected to be held (gy); any justice of the
peace, under complaint made before him on oath that there
1s reason to suspect any house, room or place to be kept and
used as a common gaming house, may by his warrant, at
any time in his discretion, authorize any constable, to-
gether with necessary assistance, to make an entry in the
same manner as might have been done by such justices,
mayors, &c. in person. Permission is also given to use
force if necessary in making such entry, either by breaking
open doors, or otherwise, and authority is given to arrest,
search and bring before a justice of the peace both ‘ the
keepers and the persons resorting and playing there” (/) to
be dealt with according to law (i).

Within the Metropolitan District, if any superintendent
belonging to the Metropolitan Police Force report in writing
to the Commissioners of Police of the Metropolis that there
are good grounds for belief, and that he believes that a
house, room or place within the Metropolitan Police
District is kept or used as a common gambling house ;
either of these Commissioners, by their order in writing,

(a) Jenks v. Turpin, 13 Q. B.D. per Hawkins, J.

505; 53 L.J., M.C.161; 50 L. (9) 33 Hen. 8, ¢. 9, s. 14, Appen-
T., N.S. 808. dix. :

(e) Jenks v. Turpin, 13 Q. B. D. (h) 8 & 9 Vict. v. 109, s. 8, Ap-
at p. 512, per Hawkins, J. pendix. See post, p. 479.

(f) 18 Q. B. D. at pp. 515, 516, (i) 33 Hen. 8, c. 9, 8. 14.

A club.

Power of
justices.

In the
Metropolitan
district.
476

Penalties

on gaming-
house keepers
under 8 & 9
Vict. c. 109.

Penalty for
playing.

Evidence of
gaming.

GAMING HOUSES.

may authorize the superintendent to make an entry, with
such constables as the Commissioner may direct to accom-
pany him, and if necessary to use force to effect such entry,
either by breaking open the doors or otherwise, and to take
into custody all persons there found, and to seize all
tables or instruments of gaming, and all monies and
securities for money found in such house or premises (/').
He may also search all parts of the house or premises
where he shall suspect that tables or instruments of
gaming are concealed, as well as all persons there found,
and seize all tables and instruments of gaming he may
happen to find (2).

Under 8 & 9 Vict. c. 109, the owner or keeper, and
every person having the care or management of such
gaming house, and also every banker, croupier and other
person in any manner conducting the business of it, on
conviction either by his own confession or by the oath of
a credible witness before any two justices of the peace,
besides being liable, under 33 Hen. 8, c. 9, to pay a fine of
forty shillings for each day (2), and to be imprisoned till
he shall have found sureties to abstain from such practices
for the future (7), is Hable to such an additional penalty of
not more than 1007. as might be adjudged by the justices
before whom he may be convicted; or, in the discretion
of such justices, he may be committed for not more than six
calendar months to the house of correction, with or without
hard labour. On non-payment of any penalty so adjudged,
and of the reasonable costs and charges attending the con-
viction, one of the convicting justices may, by his war.
rant, authorize the same to be levied by distress and sale
of the goods and chattels of the offender (0).

The penalty under 83 Hen. 8, c. 9, for using and
haunting and playing in gaming houses, was six shillings
and eightpence for each time of so doing (p), and such
persons when taken might be imprisoned till they gave
security to abstain from such practices for the future (q).

And where any cards, dice, balls, counters, tables, or
other instruments of gaming used in playmg any un-
lawful game are so found, it is evidence, until the contrary
is made to appear, that such house, room, or place, is used

(k) 8 & 9 Vict. v. 109, s. 6. (p) 88 Hen. 8, c. 9,8. 12. See
(2) Ibid. s. 7. post, pp. 478, 479, as to the penalties,
(m) 33 Hen. 8, ¢. 9, s. 11. which may be adjudged under 17 &
(n) 8 & 9 Vict. c. 109, s. 4. 18 Vict. ¢. 38.

(0) Ibid. See post, p. 479. (q) Ibid. s. 14.
GAMING HOUSES.

as a common gaming house, and that the persons so found
were there playing; although no play was actually going
on in the presence of such superintendent or constable
or those accompanying him on his entry. And the police
magistrate or justices, before whom any person is taken
by virtue of the warrant or order, may direct all such
tables and instruments of gaming to be forthwith de-
stroyed (7).

But the difficulty of obtaining such evidence of gaming
was so great, that this portion of the Act proved to be
practically a dead letter; for all gaming houses were found
to be provided with the means of secretly making away
with the instruments of gaming on any alarm being
given; and the penalties inflicted were insufficient to cor-
rect the evil.

Accordingly, to remedy these defects in the operation
of the 8 & 9 Vict. c 109, and the other Acts for the
prevention of unlawful gaming, a supplementary Act was
passed in the year 1854, intituled “An Act for the Sup-
pression of Gaming Houses” (s), which has been com-
pletely successful in accomplishing that object. It recites
that “the keepers of common gaming houses contrive,
by fortifying the entrances of such houses, or by other
means, to keep out the officers authorized to enter the
same until the instruments of gaming have been removed
or destroyed, so that no sufficient evidence can be obtained
to eonvict the offenders, who are thereby encouraged to
persist in the violation of the law; and” that “it is ex-
pedient that the law shall be made more efficient for
the suppression of gaming houses.”’

With this object persons may be summarily convicted
under this Act before two justices of the peace of thus
obstructing the officers, and, in the discretion of the
justices, may be fined a sum of money not exceeding
1007., or be imprisoned, with or without hard labour, for
any period not exceeding six calendar months (¢). And
the mere fact of obstructing the officers is to be evidence
of the house being a common gaming house (w).

Persons found there, and giving false names or ad-
dresses, or refusing to give their names and addresses, inay,

(r) 8 & 9 Vict. c. 109, s. 8. ment for non-payment of penalty
(s) 17 & 18 Vict. c. 38, Appendix. and costs is repealed by the Summary
(t) Ibid. s.1, Appendix. So much Jurisdiction Act, 1884.

of this section and of ss. 2, 3, and 4 (wu) Ibid. s. 2.

as prescribes the term of imprison-

ATT

Difficulty of
obtaining
evidence.

17 & 18 Vict.
c. 38.

Persons
summarily
convicted of
obstructing
officers.

Persons
giving false
names or
addresses.
478

Owner or
occupier may

be fined 5002.

or impri-
soned.

“*Unlawtul
iaanott ”
gaming.

GAMING HOUSES.

upon summary conviction, be fined 50/., or imprisoned for
one month (c).

The owner or occupier, or any person “having the use
of any house, room, or place, who shall open, keep, or use
the same for the purpose of unlawful gaming being carried
on therein, and any person, who being the owner or occu-
pier of any house or room, shall knowingly and wilfully
permit the same to be opened, kept, or used by any other
person for the purpose aforesaid, any person having the
care or management of or in any manner assisting in
conducting the business of any house, room, or place opened,
kept, or used for the purpose aforesaid, and any person
who shall advance or furnish money for the purpose
of gaming with persons frequenting such house, room, or
place,” may be summarily convicted before two justices of
the peace, and be adjudged to pay any sum not exceeding
5007. and costs, or may be imprisoned, with or without
hard labour, for twelve calendar months (y).

Gaming may be unlawful by reason of the place in
which it is carried on, or by reason of the unlawfulness of
the game itself. All gaming in a gaming house, even at
lawful games, is wulawful (=). As to lawful and unlawful
games, see ante, pp. 425, 426.

According to Hawkins, J., excessive gaming, per se, is
no longer unlawful, as it was not an offence at common
law, and there now exists no statute against it. But the
fact that it is habitually carried on in a house kept for the
purpose of gaming is cogent evidence for a jury or other
tribunal called upon to determine whether the house in
which it is carried on is a gaming house, so as to make
the keeper of it able to be indicted for a nuisance at
common law (a). But, according to A. L. Smith, J., every
game may be rendered unlawful by playing at it for ex-
cessive stakes (0).

In Jenks v. Turpin (c) the proprietor of a club, who
was also the occupier of the club-house, which was ob-
viously kept and used for the purpose of gaming at the
game of baccarat, was held to have been rightly convicted
of keeping and using the club-house for the purpose of
unlawful gaming, and four members of the committee were

(x) Ibid. s. 3. (a) Jenks v. Turpin, 13 Q. B. D.
(y) 17 & 18 Vict. c. 38, s. 4, at p. 524.
Appendix. (6) 13 Q. B. D. 582.
) Jenks v. Turpin, 13 Q. B. D. (c) Ubi supra.

(z
506.
GAMING HOUSES. 479
held to have been rightly convicted as persons “having
the care or management of and assisting in conducting the
business of the club ;”’ but a conviction against three of the
players, who were included in the same information, for
assisting by playing in conducting the business of the club,
was held bad, although they might possibly be liable to
indictment for unlawful gaming in a common gaming
house.

Under this Act the justices of the peace, before whom
persons found in a room or place of this description shall be
brought, may require any of the persons apprehended to be
sworn and to give evidence under a penalty for refusal (d) ;
but persons making a full discovery may be freed from
all penalties (e).

The penalties and costs inflicted under this Act may be
levied by distress (/). And one-half of each penalty shall
be applied in aid of the poor rate of the parish in which
the offence shall have been committed, and the other half
shall be paid to the person laying the information (9).
Except in the case of a conviction before a Metropolitan
Police magistrate, when the half of the penalty which is
not payable to the informer goes to the receiver of the
Metropolitan Police (A).

On the neglect of the person laying the information to
prosecute the summons, the justices may authorize any

Persons
apprehended
may be made
witnesses.

Penalties and
costs.

On neglect
to prosecute,
another per-

other person to proceed thereon, or to lay a fresh informa- son may be
tion (i), aaneme to
An appeal is given to quarter sessions (/); and the Ee ea
] - 7 > : 2 emanung
judgment of the justices thus given is not removable by provisions.
certiorari (1).
By 8 & 9 Vict. c. 109, s. 10, a licence is required for Billiards,

bagatelle, &c.

(d) 17 & 18 Vict. c. 38,8. 5, Ap- such offence, or unless the person

pendix. accused has been committed to or
(e) Ibid. s. 6. detained in custody, or has been
(f) Ibid. s. 7. bound by recognizance to appear in
(g) Ibid. s. 8. answer to an indictment to be pre-

(4) Wray v. Ellis, 1 E. & E. 276 ;
28 L. J., M. C. 45.

(i) 17 & 18 Vict. c. 38, s. 9, Ap-
pendix. By the 22 & 23 Vict. c. 17,
s. 1, no bill of indictment for keep-
ing a gambling house (amongst other
offences) shall be presented to or be
found by any grand jury, unless the
prosecutor or other person presenting
such indictment has been bound by
recognizance to prosecute or give evi-
dence against the person accused of

ferred against him for such offence,
or unless such indictment for such
offence, if charged to have been
committed in England, be preferred
by the direction or with the con-
sent in writing of a Judge of one
of the Superior Courts or of Her Ma-
jesty’s Attorney-General or Solicitor-
General.

(k) 17 & 18 Vict. c. 38, s. 10,
Appendix.

(2) Ibid. s, 11.
480

Regulations
regarding
billiard
licences.

Non-
compliance
with these
regulations.

Offences
against the
tenor of the
licence.

When bil-
liard playing
is not
allowed.

GAMING HOUSES.

every house, room, or place where a public billiard table,
or bagatelle board, or instrument used in any game of the
like kind is kept, at which persons are admitted to play,
except in houses or premises specified in a victualler’s
licence (m).

Justices of the peace are authorized at their general
annual licensing meeting to grant billiard licences to such
persons as, in their discretion, they deem fit and proper to
keep such public billiard tables, on payment of six shillings,
and such licences are to continue a year(z). And no
appeal hes against a refusal by justices to grant a billiard
licence (0). The words ‘‘ LicznsED ror BILiiarps”’ are to
be legibly painted in some conspicuous place on the outside
of the house and near the door (7).

Every person neglecting to comply with these regulations
may be proceeded against as the keeper of a common
vaming house, and in addition to the penalty to which he
is lable for that offence, he may be fined any sum the
justices may fix upon of not more than 10/. for every day
in which such billiard table, &c. has been used; or in the
justices’ discretion may be committed to the House of
Correction, with or without hard labour, for any term not
exceeding one calendar month. A power of distress is
given for non-payment of any penalty; but no person
summarily convicted can be indicted for the same offence (q).

Persons offending against the tenor of their licences are
liable to the same penalties and punishments in the case of
a first, second, or third offence as keepers of inns, alchouses,
and victualling houses, under 9 Geo. 4, c. 61, and all the
provisions of that Act with respect to convictions, penalties,
&e. are to apply to convictions for offences against the tenor
of the licences under this Act, and to the consequent pro-
ceedings (r).

No keeper of any public billiard table, &c., whether he
have a victualler’s licence or not, is to allow any person to
play between one and eight in the morning of any day, or
at any time on Sundays, Christmas Day, Good Friday, or
any day appointed to be kept as a public fast or thanks-
giving, and no victualler is to allow any person to play
during the time his premises are not by law allowed to be

(in) 8 & 9 Viet. c. 109, s. 11, Ap- (p) 8 & 9 Viet. ¢. 109, s. 11.
pendix, — (q) Ibid. Appendix.
(n) Ibid. s. 10. (r) Ibid. s. 12. But see 35 & 36

i ae parte Chamberlain, 8 E. & — Vict. ¢. 94, s. 75, post, p. 481.
GAMING HOUSES.

opened for the sale of liquors; and during the hours that
play is prohibited, every licensed house and every billiard
room in every licensed victualler’s must be closed (s).

A licensed victualler who allows his lodgers to play
billiards during closing hours is liable to conviction for so
doing, notwithstanding the provisions of 87 & 38 Vict.
c. 49, s. 10, to the effect that such a person may sell
intoxicating liquor at any time to persons lodging in his
house (¢).

All constables and officers of police may enter any public
billiard room, &c. when and so often as they think fit, and
the non-compliance with these regulations is to be deemed
an offence against the tenor of the keeper’s licence (2).

The Licensing Act, 1872 (x), s. 75, contains a proviso
that, “in the case of persons intending to apply for
billiard licences under 8 & 9 Vict. c. 109, or for the transfer
of such licences, the same notices shall be given as are by
this Act required in the case of licences as defined by this
Act, or as near thereto as circumstances admit; and any
person convicted of an offence against the tenor of a bilhard
licence, or of any offence declared by the last-mentioned
Act to be an offence against the tenor of a licence as defined
by this Act, shall be punished under this Act in the same
manner in all respects as a licensed person within the
meaning of this Act is punishable under this Act for suffer-
ing any gaming or unlawful game to be carried on on his
premises; and in construing the last-mentioned Act any
reference to the Intoxicating Liquor Licensing Act, 1828,
shall be construed to refer to that Act as amended by this
Act.”

(s) 8 & 9 Vict. c. 109, s. 13. (u) 8 & 9 Vict. c. 109, s. 14,
(t) Ovenden v. Raymond, 34 L.T., Appendix.
N.S. 698. (c) 35 & 36 Vict. ¢. 94.

481

Constables
may Visit
licensed
houses.

Application
of Licensing
Act, 1872.
The penalty
for mainte-
nance of a
house for
unlawful
games,

The penalty
for resorting
to a house
for unlawful
games.

Magistrates
may repress
unlawful
games and
punish
offenders.

APPENDIX OF STATUTES.

—_>——_.

33 Henry VIII. Cav. 9.

The Bill for the Muintaining Artillery, and the Debarring of
Unlawful Games.

Sect. 11. No manner of person or persons, of what degree,
quality or condition soever he or they be, from the Feast of the
Nativity of St. John Baptist, now next coming, by himself,
factor, deputy, servant or other person shall for his or their
gain, lucre or living, keep, have, hold, occupy, exercise or main-
tain, any common house, alley or place (a) of dicing, table, or
carding, or any other manner of game prohibited by any
estatute heretofore made, or any unlawful new game now
invented or made, or any other new unlawful game hereafter to
be invented, found, had or made, upon pain to forfeit and pay
for every day keeping, having or maintaining, or suffering any
such game to be had, kept, executed, played or maintained
within any such house, garden, alley, or other place, contrary
to the form and effect of this estatute, forty shillings.

12. And also every person using and haunting any of the
said houses and plays, and there playing, to forfeit for every
time so doing, six shillings and eight-pence.

14, It shall be lawful to all and every the justices of
peace in every shire, mayors, sheriffs, bailifis, and other head
officers within every city, town and borough within this realm,
from time to time, as well within liberties as without, as need
and case shall require, to come, enter and resort into, all and
every houses, places and alleys where such games shall be
suspected to be holden, exercised, used or occupied, contrary to
the form of this estatute ; and as well the keepers of the same,
as also the persons there haunting, resorting and playing, to
take, arrest and imprison, and them so taken and arrested to
keep in prison unto such time as the keepers and maintainers
of the said plays and games have found sureties to the king’s
use, to be bound by recognizance or otherwise, 10 longer to use,
keep or occupy any such house, play, game, alley or place (0) ;
and also that the persons there so found be in like case bound

(a) Keeping a cock-pit is within () For further provisions, see
this statute; Dalton, ¢. 46. 2 Geo. 2, v. 28, s. 9, post.
STATUTES.

by themselves, or else with sureties, by the discretions of the
justices, mayors, sheriffs, bailiffs, or other head officers, no more
to play, haunt or exercise from thenceforth in, at or to any of
the said places, or at any of the said games.

16. No manner of artificer or craftsman of any handicraft or
occupation, husbandman, apprentice, labourer, servant at hus-
bandry, journeyman or servant of artificer, mariners, fishermen,
watermen or any serving-man, shall from the said Feast of
the Nativity of St. John Baptist, play at the tables, dice,
cards, or any other unlawful game, out of Christmas, under
the pain of twenty shillings, to be forfeit for every time ; and
that all justices of peace, mayors, bailiffs, sheriffs and all
other head officers, and every of them, finding or knowing
any manner of person or persons using or exercising any
unlawful games, contrary to this present statute, shall have
full power and authority to commit every such offender to
ward, there to remain without bail or mainprise until such
time that they so offending be bounden by obligation to the
king’s use in such sums of money as by the discretions of the
said justices, mayors, bailiffs, or other head officers shall be
thought reasonable, that they or any of them shall not from
henceforth use such unlawful games.

17. All other statutes made for the restraint of unlawful
games, or for the maintenance of artillery, as touching the
penalties or forfeitures of the same, shall be from henceforth
utterly void ; and that all informations, plaints, actions or suits
that shall be taken or sued upon any part of this statute, shall
be commenced within the year after the offence committed and
done, or otherwise no advantage or suit thereof to be taken.

18. And where any such forfeitures shall happen to be found
within the precincts of any franchise, leet, or lawday, then the
lord of the same franchise, leet or lawday to have the one
moiety thereof, and the other moiety thereof to any of the
king’s subjects that will sue for the same in any of the king’s
courts, by action, information, bill or otherwise, in which action
or suit the defendant shall not be admitted to wage his law,
nor any protection nor essoin shall be allowed; and where
such forfeitures shall be found out of the precinct of any
franchise, leet or lawday, that the moiety of all such forfeitures
shall be to the king, our sovereign lord, and the other moiety
thereof to any the king’s subjects that will sue for the same by
bill, plaint, action, information or otherwise, in any of the
king’s courts, in which suit or action the defendant shall not be
admitted to wage his law, nor any protection or essoin shall be
allowed.

19. And to the intent that every person may have knowledge
of this Act, and avoid the danger and penalties of the same, be

(c) 1 Lutw. 1.
I12

483

Persons pro-
hibited to play
at unlawful
games out of
Christmas (¢).

All other
statutes made
against unlaw-
ful games,
and for the
maintenance
of artillery
repealed.

Within what
time any suit
shall be pro-
secuted upon
this statute
and who shall
have the for-
feitures.

Proclamation
of this statute.
484

11 Hen. 7,

c. 13.

Further pro-
visions relating
hereto.

31 Eliz. c. 12.

In what man-
ner horses
shall be sold
in fairs or
markets.

The former
misuse in sale
ot stolen
horses.

A place shall
be appointed
tor a horse
fair and also
a toll taker.

When, where,
and of whom

toll for horses
shall be taken.

APPENDIX.

it enacted by the authority aforesaid, That all mayors, bailiffs,
sheriffs and all other head officers shall four times in the year,
that is to say, every quarter once, make open proclamation of
this present Act in every market to be holden within their
several jurisdictions and authorities.

20. And algo that the justices of gaol delivery, assizes and
justices of peace, do cause the same to be proclaimed in their
several circuits and sessions before them holden, and that this
statute shall begin to take his effect concerning the penalties
of the same from the said Feast of St. John Baptist now next
coming, and to continue and endure for ever.

2 & 3 Pure anp Mary, Cap. 7.

An Act against the Buying of Stolen Horses.

“ Forasmuch as stolen horses, mares and geldings by thieves
and their confederates, be for the most parts sold, exchanged
given or put away in houses, stables, back-sides and other
secret and privy places of markets and fairs, and the toll also
privily paid for the same, whereby the true owners thereof
being not able to try the falsehood and covin betwixt the buyer
and seller of such horse, mare or gelding, is by the common law
of this realm without remedy :”

2. Be it therefore enacted by the authority of this present
parliament, That the owner, governor, ruler, fermor, steward,
bailiff or chief keeper of every fair and market overt within
this realm, and other the queen’s dominions, shall before the
feast of Easter next, and so yearly, appoint and limit out a
certain and special open place within the town, place, field, or
circuit where horses, mares, geldings and colts have been and
shall be used to be sold in any fair or market overt ; in which
said certain and open place as is aforesaid there shall be by
the said ruler or keeper of the said fair or market, put in and
appointed one sufficient person or more to take toll and keep
the same place from ten of the clock before noon until sunset
of every day of the foresaid fair and market, upon pain to
lose and forfeit for every default forty shillings: And that
every toll-gatherer, his deputy or deputies, shall, during the
time of every the said fairs and markets, take their due and
lawful tolls for every such horse, mare, gelding or colt at the
said open place to be appointed as is aforesaid, and betwixt
the hours of ten of the clock in the morning and sunset of the
same day, if it be tendered, and not at any other time or
place ; and shall have presently before him or them, at the
taking of the same toll, the parties to the bargain, exchange,
gift, contract or putting away of every such horse, mare, geld-
STATUTES.

ing or colt ; and also the same horse, mare, gelding and colt so
sold, exchanged or put away; and shall then write or cause to
be written in a book to be kept for that purpose, the names,
surnames and dwelling-places of all the said parties, and the
colour, with one special mark at the least of every such horse,
mare, gelding and colt, on pain. to forfeit at and for every
default contrary to the tenor thereof, forty shillings.

3. And the said toll-gatherer or keeper of the said book
shall within one day next after every such fair or market bring
and deliver his said book to the owner, governor, ruler,
steward, bailiff, or chief keeper of the said fair or market, who
shall then cause a note to be made of the true number of all
horses, mares, geldings and colts sold at the said market or
fair, and shall there subscribe his name, or set his mark there-
unto; upon pain to him that shall make default therein, to
lose and forfeit for every default forty shillings, and also answer
the party grieved by reason of the same his negligence in every
behalf.

4, And be it further enacted by the authority aforesaid,
That the sale, gift, exchange or putting away after the last
day of February now next coming, in any fair or market
overt, of any horse, mare, gelding or colt that is or shall be
thievishly stolen or feloniously taken away from any nerson
or persons, shall not alter, take away nor exchange the pro-
perty of any person or persons to or from any such horse,
mare, gelding or colt, unless the same horse, mare, gelding or
colt shall be in the time of the said fair or market wherein
the same shall be so sold, given, exchanged or put away,
openly ridden, led, walked, driven or kept standing by the
space of one hour together at the least, betwixt ten of the
clock in the morning and the sun-setting, in the open place of
the fair or market wherein horses are commonly used to be
sold, and not within any house, yard, back-side or other privy
or secret place, and unless all the parties to the bargain, con-
tract, gift or exchange, present in the said fair or market, shall
also come together and bring the horse, mare, gelding or colt
so sold, exchanged, given or put away to the open place ap-
pointed for the toll| taker, or for the book-keeper, where no
toll is due, and there enter or cause to be entered their names
and dwelling-places, in manner as is aforesaid, with the colour
or colours, and one special mark at the least of every the
same horses, mares, geldings or colts, in the toll-taker’s book,
or in the keeper’s book for that purpose where no toll is due,
as is aforesaid, and also pay him their toll, if they ought to
pay any ; and if not, then the buyer to give one penny for the
entry of their names, and executing the other circumstances
afore rehearsed, to him that shall write the same in the said
book.

A note of all
horses sold
in a fair or
market.

The using of
a stolen horse
in a fair, &.
before the
owner’s pro-
pet shall

e taken
away.
486

Recovery of
horse by
owner.

Application of
penalties.

The justices
of peace shall
hear and
determine the
offences
aforesaid.

The allowance
of the keeper
of the book
where no toll
is due.

APPENDIX,

‘

5. And if any horse, mare, gelding or colt that is or shall
be thievishly stolen or taken away, shall after the said last
day of February next coming be sold, given, exchanged or
put away, in any fair or market, and not used in all points
according to the tenor and intent of this estatute, that then
the owner of every such horse, mare, gelding or colt, shall
and may by force of this estatute, seize or take again the said
horse, mare, gelding, or colt, or have an action of detenue or
replevin for the same; any sale, gift, exchange or putting
away of any such horse, mare, gelding, or colt, other than
according to this estatute, in anywise notwithstanding.

6. The one-half of all which forfeitures to be to the king
and queen’s majesties, her heirs and successors, and the other
to him or them that will sue for the same before the justices
of peace, or in any of the king’s and queen’s majesties ordi-
nary courts of record, by bill, plaint, action of debt or informa-
tion, in which suits no protection, essoin or wager of law shall
be allowed.

7. And be it enacted by the authority aforesaid, That the
justices of peace of every place and county, as well within
liberties as without, shall have authority in their sessions,
within the limits of their authority and commission, to inquire,
hear and determine all offences against this estatute, as they
may do any other matter triable before them.

8. Provided alway, that in every such fair or market where
any toll is nor shall be due ne leviable by reason of the free-
dom, liberty or privilege of the said fair or market, the keeper
or keepers of the book, touching the execution of this present
Act, shall take nor exact but one penny upon and for every
contract for his labour in writing the entry concerning the
premises, in manner and form as is before declared.

31 Enrz. Cap. 12.

An Act to avoid Horse Stealing.

“Whereas through most counties of this realm horse steal-
ing is grown so common, as neither in pastures or closes, nor
hardly in stables, the same are to be in safety from stealing,
which ensueth by the ready buying of the same by horse-
coursers and others, in some open fairs or markets far distant
from the owner, and with such speed as the owner cannot hy
pursuit possibly help the same; and sundry good ordinances
have heretofore been made touching the manner of selling and
tolling of horses, mares, geldings, and colts in fairs and markets,
which have not wrought so good effect for the repressing or
avoiding of horse stealing as was expected :”
STATUTES.

2. Now for a further remedy in that behalf, be it enacted
by the authority of this present parliament, That no person
after twenty days next after the end of this session of parlia-
ment shall in any fair or market sell, give, exchange or put
away any horse, mare, gelding, colt, or filly, unless the toll
taker there, or (where no toll is paid) the book-keeper,
bailiff, or the chief officer of the same fair or market, shall
and will take upon him perfect knowledge of the person that
so shall sell or offer to sell, give or exchange any horse, mare,
gelding, colt, or filly, and of his true christian name, suruame
and place or dwelling or resiancy, and shall enter all the same
his knowledge into a book there kept for sale of horses; or
else that he so selling or offering to sell, give, exchange or
put away any horse, mare, gelding, colt, or filly, shall bring
unto the toll taker or other officer aforesaid, of the same fair
or market, one sufficient and credible person that can, shall,
or will testify and declare unto and before such toll taker,
book-keeper or other office, that he knoweth the party that
so selleth, giveth, exchangeth or putteth away such horse,
mare, gelding, colt, or filly and his true name, surname,
mystery and dwelling-place, and there enter or cause to be
entered in the book of the said toll taker or officer, as well
the true christian name, surname, mystery and place of dwel-
ling or resiancy of him that so selleth, giveth, exchangeth or
putteth away such horse, mare, gelding, colt or filly, as of him
that so shall testify or avouch his knowledge of the same per-
gon ; and shall also cause to be entered the very true price or
value that he shall have for the same horse, mare, gelding,
colt or filly, so sold: And that no person shall take upon him
to avouch, testify or declare that he knoweth the party that
so shall offer to sell, give, exchange or put away any such
horse, mare, gelding, colt or filly, unless he do indeed truly
know the same party, and shall truly declare to the toll taker
or other officer aforesaid, as well the christian name, surname,
mystery and place of dwelling and resiancy of himself, as of
him of and for whom he maketh such testimony and avouch-
ment: And that no toll taker or other person keeping any
book of entry of sales of horses in fairs or markets, shall take
or receive any toll, or make entry of any sale, gift, exchange
or putting away of any horse, mare, gelding, colt or filly,
unless he knoweth the party that so selleth, giveth, ex-
changeth or putteth away any such horse, mare, gelding, colt
or filly, and his true christian name, surname, mystery and
place of his dwelling or resiancy, or the party that shall and
will testify and avouch his knowledge of the same person so
selling, giving, exchanging or putting away such horse, mare,
gelding, colt or filly, and his true christian name, surname,
mystery, and place of dwelling or resiancy, and shall make a

487

11 Hen. 7,
13.

c.

Sellers of
horses in
fairs or mar-
kets must be
known to the
toll taker, or
some other
who will
avouch the
sale, which
shall be en-
tered in the
toll book, &e.
2&3 Phil. &
M.c. 7.

A sufficient
and credible
person shall
ayouch the
horse seller.

The price of
the horse
shall be en-
tered in the
toller’s book.
488

A note in
writing shall
be given to
the buyer.

The penalty
of the person
offending in
any of the
cases afore-
said.

Every sale
otherwise
made shall
be void.

The justices
of peace may
hear and
determine the

offences afore-

said.

APPENDIX.

perfect entry into the said book of such his knowledge of the
person, and of the name, surname, mystery and place of the
dwelling or resiancy of the same person, and also the true
price or value that shall be bond fide taken or had for any
such horse, mare, gelding, colt or filly so sold, given, ex-
changed or put away, so far as he can understand the same,
and then give to the party so buying or taking by gift, ex-
change or otherwise, such horse, mare, gelding, colt or filly,
requiring and paying twopence for the same, a true and per-
fect note in writing of all the full contents of the same, sub-
scribed with his hand; on pain that every person that so shall
sell, give, exchange, or put away any horse, mare, gelding,
colt or filly without being known to the toll taker or other
officer aforesaid, or without bringing such a voucher or witness,
causing the same to be entered as aforesaid, and every person
making any untrue testimony or avouchment in the behalf
aforesaid, and every toll taker, book-keeper or other officer
of fair or market aforesaid, offending in the premises contrary
to the true meaning aforesaid, shall forfeit for every such
default the sum of jive pounds ; but also that every sale, gift,
exchange, or other putting away of any horse, mare, gelding,
colt, filly, in fair or market, not used in all points according
to the true meaning aforesaid, shall be void; the one-half of
all which forfeitures to be to the queen’s majesty, her heirs,
and successors, and the other half to him or them that will
sue for the same before the justices of peace, or in any of her
majesty’s ordinary courts of record, by bill, plaint, action of
debt or information, in which no essoin or protection shall be
allowed.

3. And be it further enacted, That the justices of peace of
every place or county, as well within liberties as without,
shall have authority in their sessions, within the limits of their
authority and commission, to inquire, hear and determine all
offences against this statute, as they may do any other matter
triable before them.

4. And be it further enacted, That if any horse, mare,
gelding, colt, or filly, after twenty days next ensuing the end
of this session of parliament, shall be stolen, and after shall be
sold in open fair or market, and the same shall be used in all
points and circumstances as aforesaid, that yet nevertheless
the sale of any such horse, mare, gelding, colt or filly, within
siz months next after the felony done, shall not take away the
property of the owner from whom the same was stolen, so as
claim be made within siz months by the party from whom the
same was stolen, or by his executors, or administrators, or by any
other by any of their appointment, at or in the town or parish
where the same horse, mare, gelding, colt or filly shall be found,
before the mayor or other head officer of the same town or
STATUTES.

parish, if the same horse, mare, gelding, colt or filly, shall
happen to be found in any town corporate or market town, or
else before any justice of peace of that county near to the place
where such horse, mare, gelding, colt, or tilly shall be found,
if it be out of a town corporate or market town ; and so as
proof be made within forty days then next ensuing by two
sufcient witnesses to be produced and deposed before such
head officer or justice (who by virtue of this Act shall have
authority to administer an oath in that behalf), that the
property of the same horse, mare, gelding, colt or filly so
claimed was in the party by or from whom such claim is made,
and was stolen from him within six months next before such
claim of any such horse, gelding, mare, colt or filly ; but that
the party from whom the said horse, mare, gelding, colt or
filly was stolen, his executors or administrators shall and may
at all times after, notwithstanding any such sale or sales in
any fair or open market thereof made, have property and
power to have, take again and enjoy the said horse, mare,
gelding, colt, or filly upon payment or readiness, or offer
to pay, to the party that shall have the possession and interest
of the same horse, mare, gelding, colt, or filly, if he will
receive and accept it, so much money as the same party shall
depose and swear before such head officer or justice of peace
(who by virtue of this Act shall have authority to minister
and give an oath in that behalf) that he paid for the same
bond fide, without fraud or collusion; any law, statute or
other thing to the contrary thereof in anywise notwith-
standing.

2 Geo. II. Cap. 28.

An Act (among other things) for more effectual debarring
of unlawful Games.

9. “And whereas a good and profitable statute was made
in the three-and-twentieth year of the reign of King Henry
the Eighth, (among other things) for the debarring of unlaw-
ful games ; and whereas by the said statute no power is given
unto the justices of the peace to demand and take from per-
sons found playing contrary to law any other security than
their own recognizances that they or any of them shall not
from thenceforth use such unlawful games, unless such per-
sons are found playing contrary to law upon the view of one
or more justice or justices of the peace ;” for remedy thereof,
be it further enacted, that where it shall be proved upon the
oath of two or more credible witnesses, before any justice or
justices of the peace, as well as where such justice or justices
shall find upon his or their own view that any person or per-

489

The owner
may redeem a
horse stolen
from him
within six
months after
paying the
price.

Act 33 Hen. 8,
c. 9, against
unlawful
games made
more effectual.
490

APPENDIX.

sons have or hath used or exercised any unlawful game con-
trary to the said statute, the said justice or justices shall have
full power and authority to commit all and every such offender
and offenders to prison, without bail or mainprize, unless and
until such offender and offenders shall enter into one or more
recognizance or recognizances, with sureties or without, at
the discretion of the said justice or justices of the peace, that
he or they respectively shall not thenceforth play at or use
such unlawful game.

12 Geo. II. Cap. 28.

An Act for the more effectual preventing of excessive“and
deceitful Gaming.

“And whereas it is found by experience that the said good
and wholesome laws have not effectually answered the good
ends, intents and purposes in and by the said Acts (d) de-
signed; but that, contrary to the true intent and meaning of
the said recited Acts, several deceitful games and subscriptions
are daily carried on under the denomination of sales of houses,
lands, plate, jewels, goods and other things ; and that several
printers have printed, published, or caused to be printed and
published, proposals or schemes for the sale of such houses,
lands, plates, jewels, goods and other things, to be determined
by Rages, by mathematical machines or engines, and by other
indirect ways and means, tending to evade the said good and
wholesome laws before mentioned ; and whereas several per-
sons have for many years past carried on and set up certain
fraudulent games and lotteries, to be determined by the
chance of cards and dice, under the denomination of the games
of the ace of hearts, pharaoh, basset and hazard, and thereby
defrauded several of his majesty’s subjects ignorant of the
great disadvantage adventures in the said games and lotteries
so denominated the games of the ace of hearts, pharaoh, basset
or hazard (e), are under, subject and liable to; and whereas
several doubts have arisen whether the said games of the ace
of hearts, pharaoh, basset and hazard (e) are within the de-
scriptions of the lotteries prohibited by the said recited Acts of
Parliament (¢@); and whereas great difficulties have arisen
upon the methods of conviction of the offenders against the
said Acts of Parliament; for remedy whereof, and for explain-
ing and making more effectual the said Acts of Parliament,
may it please your most excellent majesty that it may be

(d@) 10 & 11 Will. 3, @ 17; 9 (ce) Rex v. Liston, 5 T. R. 340;
Anne, c. 6,8. 56; 8 Geo. 1, ¢. 2, AL‘ Winnell v. Robinson, 8 M. & W.
s. 36, prohibiting Lotteries. 434.
STATUTES.

enacted, and 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 the present parliament as-
sembled, and by the authority of the same, that if any person
or persons shall, after the twenty-fourth day of June, one
thousand seven hundred and thirty-nine, erect, set up, con-
tinue or keep any office or place under the denomination of a
sale or sales of houses, land, advowsons, presentations to
livings, plate, jewels, ships, goods or other things by way of
lottery, or by lots, tickets, numbers or figures, cards or dice ;
or shall make, print, advertize or publish, or cause to be made,
printed, advertized or published, proposals or schemes for
advancing small sums of money by several persons, amounting
in the whole to large sums, to be divided among them by
chances of the prices in some public lottery or lotteries esta-
blished or allowed by Act of Parliament, or shall deliver out,
or cause or procure to be delivered out, tickets to the persons
advancing such sums, to entitle them to a share of the money
so advanced, according to such proposals or schemes ; or shall
expose to sale any houses, land, advowsons, presentations to
livings, plate, jewels, ships or other goods by any game,
method or device whatsoever, depending upon or to be deter-
mined by any lot or drawing, whether it be ont of a box or
wheel, or by cards or dice, or by any machine, engine or de-
vice of chance of any kind whatsoever ; such person or per-
sons, and every or either of them, shall, upon being convicted
thereof before any one justice of the peace for any county,
riding or division, cr before the mayor or other justice or
justices of the peace for any city or town corporate, upon the
oath or oaths of one or more credible witness or witnesses
(which said oaths the said justices of the peace and mayor
ave hereby authorized, empowered, and required to administer),
or upon the view of such justice or justices, or the mayor,
justice or justices for any city or town corporate, or on the
confession of the party or parties accused, shall forfeit and lose
the sum of Two hundred pounds, to be levied by distress and
sale of the offender's goods, by warrant under the hands and
seals of one or more justice or justices of the peace of such
county, riding, division, city or town where the offence shall be
committed; which said forfeitures, when recovered, after
deducting the reasonable charges of such prosecution, shall go
and be applied, one-third thereof to the informer, and the
remaining two-thirds to the use of the poor of the parish where
such offence shall be committed, excepting the said two-thirds
of such forfeitures which shall be incurred by and recovered
upon any person or persons within the city of Bath, which said
two-thirds shall go and be applied to and for the use and
benefit of the poor residing within the hospital or infirmary

491

2007. penalty
on any offence
against this
Act.

The same, how
to be levied
and applied.
492

Games within
intent of the
Act.

502. penalty
on the
adventurers.

Sales by
lotteries void ;

and lands, &e.
forfeited.

APPENDIX.

lately erected for the use and benefit of poor persons resorting
to the said city for the benefit of the mineral waters, after
deducting the charges of conviction as aforesaid.

2. The said games of the ace of hearts, pharaoh, basset and
hazard (f), are and are hereby declared to be games or lotteries
by cards or dice within the imtent and meaning of the said in
part recited Acts; and that all and every person or persons
who shall set up, maintain or keep the said games of the ace
of hearts, pharaoh, basset and hazard shall be subject and
liable to all and every the penalties and forfeitures in and by
this Act inflicted upon any person or persons who shall erect,
set up, continue or keep any of the said games or lotteries in
this present Act mentioned; and shall be prosecuted and
convicted, and the penalties and forfeitures shall be sued for
and recovered, in like manner as the said penalties and for-
feitures are by this Act directed to be sued for and recovered.

8. All and every person and persons who shall be adven-
turers in any of the said games, lottery or lotteries, sale or
sales ; or shall play, set at, stake or punt at either of the said
games of the ace of hearts, pharaoh, basset and hazard (f), and
shall be thereof convicted in such manner and form as in and
by this Act is prescribed, every such person or persons shall
forfeit aud lose the sum of Fifty pounds, to be sued for and
recovered as aforesaid.

4. All and every such sale or sales of houses, lands, advow-
sons, presentations to livings, plate, jewels, ships, goods or
other things by any game, lottery or lotteries, machine, engine
or other device whatsoever, depending upon or to be deter-
mined by chance or lot, shall and are hereby declared to be
void to all intents and purposes whatsoever ; and all such
houses, lands, advowsons, presentations to livings, plate, jewels,
ships, goods or other things set up and exposed to sale in
manner and form aforesaid shall be forfeited to such person
or persons who shall sue for the same, by action, bill, plaint or
information, in any of his majesty’s courts of record, or at the
assizes for any county where the offence shall be committed ;
in which action, bill, plaint or information no essoin, protection,
wager of law, or more than one imparlance shall be allowed.

5. Provided always, that if any person or persons shall think
him, her or themselves aggrieved by the judgment or deter-
mination of any justice or justices of the peace or mayor as
aforesaid, upon any conviction of or for any of the offences in
this Act, such person or persons may appeal from the said
judgment of the said justice or justices or mayor to the next
general quarter sessions of the peace (4).

(f) Rex v. Liston, 5 T. R. 340; (g) The rest of this section was

M*Kinnell v. Robinson, 3 M. & W. repealed by the Summary Jurisdic-
434, tion Act, 1884, as replaced by s. 31
STATUTES.

6. Provided always, that no such conviction made, or judg-
ment given as aforesaid, by this Act, shall... . (A) be removed
or removable by certiorari, or any other writ or process whatso-
ever, into any of his majesty’s courts of record at Westminster,
until such order or other proceeding shall have been first
removed to, and judgment and determination given and made
thereupon, by such court of quarter sessions as aforesaid.

7. That no writ of certiorari or other process shall issue or
be issuable to remove the record of any such conviction from
the said court of quarter sessions, or to remove any order or
other proceedings taken or made by the said court of quarter
sessions upon, touching or concerning such conviction, into any

493

Convictions.

Record
removable
upon 1002,
security.

of his majesty’s courts of record at Westminster, until the party —

or parties against whom such conviction shall be made, before
the allowance of such writ of certiorari or other process, shall
find two sufficient sureties to become bound to the prosecutor
in the sum of One hundred pounds, with condition to prose-
cute the same with effect within s¢x calendar months, and to
pay unto the prosecutor or prosecutors his, her, or their treble
costs and charges, in case such order or conviction shall be
affirmed.

8. [Offenders not able to pay the penalties to be im-

prisoned (2). ]
, 9. If any justice of the peace, or any other justice hereinbe-
fore described, or mayor of any corporation, shall neglect or
refuse to do what is required of him and them by this Act, such
justices and mayors so neglecting or refusing shall respectively
forfeit and pay the sum of Zen pounds for each offence, one
moiety whereof to be paid to any person or person who shall
sue for the same, and the other moiety thereof to the poor of
the parish or place where such offence shall be committed (4),
and shall be recovered with full costs of suit, by action, bill,
plaint or information in any of his majesty’s courts of record,
or at the assize for any county; in which action, bill, plaint or
information no essoign, protection or wager of law, nor more
than one imparlance shall be allowed ; such prosecution being
commenced within six months next after such refusal of such
justices or mayor.

10. Nothing in this Act or in any former Acts against gaming
contained shall extend to prevent or hinder any person or
persons from gaming or playing at any of the games in this or
in any of the said former Acts mentioned within any of his

of the Summary Jurisdiction Act, been replaced by s. 39 of the Act of
1879, as amended by s. 6 of the Act 1879.

of 1884. (i) Repealed by the Summary
(h) The omitted portion of this Jurisdiction Act, 1884.
section was repealed by the Summary (k) But see 46 Geo. 3, c. 148,

Jurisdiction Act, 1884, as having  s. 59.

Penalty on
neglect of
justices or
mayors.

This Act not
to hinder any
games in
palaces where
the king
resides ;
494

nor to affect
the right to
any lands, &c.
eld by lot.

Limitations of
actions.

General issue.

Treble costs.

APPENDIX.

majesty’s royal palaces, where his majesty, his heirs and

- successors shall then reside.

11. Provided always, that nothing herein contained shall
extend, or be any ways construed, deemed or taken to extend,
or in any sort to affect or prejudice any estate or interest in,
out of, or to any manors, honours, royalties, lands, tenements,
advowsons, presentations, rents, services and hereditaments
whatsoever, which shall or may at any time or times hereafter
be according to the laws now in being legally allotted to, or
held by, or by means of any allotment or partition by lots (J) ;
but that all persons who now are, or that shall hereafter
become really and truly seised as part owners, joint tenants,
and tenants in common of any manors, honours, royalties,
lands, tenements, advowsons, presentations, rents, services, and
hereditaments shall, and he, she and they and his, her and
their heirs and assigns is and are hereby made and continued
capable to accept and take such estates and interest, and parts
therein, in such and the like manner, and to such and the
like uses, as he, she, or they might, would or could have done
by or by virtue or in consequence of any lot, scroll, chance or
allotment whatsoever had this present Act uever been made,
anything herein contained to the contrary thereof notwith-
standing.

12. If any suit or action shall be commenced or prosecuted
against any person or persons for anything done in pursuance
of this Act, every such suit or action shall be commenced within
three calendar months next after the fact was committed, and
not afterwards ; and shall be laid or brought in the county, city
or place where the cause of action shall arise and not else-
where ; and the defendant and defendants therein shall and may
plead the general issue, and give this Act and the special
matter in evidence at the trial to be had thereupon, and that
the same was done in pursuance of or by the authority of this
Act ; [and if the plaintiff or plaintiffs shall become nonsuited or
discontinue his, her or their action or actions, suit or suits, or
if upon demurrer judgment shall be given against the plaintiff
or plaintiffs, the defendant or defendants shall and may recover
treble costs, and have like remedy for the same as any defen-
dant or defendants hath or have for costs in any other cases by
law | (m).

(2) See Ballot in Building Societies, (m) Repealed, 5 & 6 Vict. c. 97,
&e., ante, Part III., Chap. IV. $22
STATUTES.

13 Geo. II. Cap. 19.

An Act to restrain and prevent the excessive Increase of Horse
Races, and for amending an Act made in the last Session of
Parliament, intituled “An Act for the more effectual pre-
venting of excessive and deceitful gaming.”

9. “And whereas a good and wholesome law was made in
the twelfth year of the reign of his present majesty King
George the Second, intituled ‘An Act for the more effectual
preventing of excessive and deceitful Gaming ;’ but contrary
to the true intent and meaning thereof, some fraudulent and
deceitful games have been invented, and a certain game called
passage is now daily practised and carried on, to the ruin and
impoverishment of many of his majesty’s subjects;” it is

495

12 Geo. 2,
uv. 28.

Game of

therefore hereby enacted and declared, that the said game of passage, and

passage, and all and every other game and games invented or
to be invented, with one or more die or dice, or with any other
instrument, engine or device, in the nature of dice, having
one or more figures or numbers thereon (backgammon and the
other games now played within the backgammon tables only
excepted) are and shall be deemed to be games or lotteries by
dice, within the intent and meaning of the said in part recited
Act ; and all and every person and persons who shall set up,
maintain or keep any office, table or place (save and except
as in the said in part recited Act is provided and declared),
for the said game of passage, or for any other such game or
games as aforesaid (backgammon and the other games now
played with the backgammon tables only excepted), shall
severally forfeit, be subject and liable to, all and every the
penalties and forfeitures in and by the said in part recited Act
inflicted upon any person or persons who shall erect, set up,
continue or keep any of the games or lotteries in the said in
part recited Act mentioned ; and all and every person or persons
who shall play, set at stake, or adventure at the said game of
passage, or at any such other game as aforesaid (backgammon
and the other games now played with the backgammon tables
only excepted), save and except as in the said in part recited
Act is provided and declared, he and they respectively shall
severally forfeit, be subject and liable to all and every the
penalties and forfeitures in and by the said in part recited Act
inflicted upon any person or persons who shall play, set at
stake or adventure at any of the said games in the said in part
recited Act mentioned; and all and every such offenders
respectively shall be prosecuted and convicted, and the several
penalties and forfeitures shall be sued for and recovered and
disposed of in like manner, and to such uses, as the several
penalties and forfeitures in either of such cases are by the said

other games
with dice,
prohibited,

Under
penalties of
12 Geo. 2,
G 28,
406

No person
shall keep a
place for
playing roly-
poly, or other
game with
cards or dice,
under
penalties of
12 Geo. 2,

c. 28.

APPENDIX.

in part recited Act directed to be sued for and recovered, and

disposed of.
10. [Double costs] (7).

18 Geo. II. Car. 34.

An Act to exprain, amend, and make more effectual the Laws in
being, to prevent excessive and deceitful Gaming ; and to re-
strain and prevent the excessive Increase of Horse Races.

“Whereas notwithstanding the many good and wholesome
laws now in being for preventing excessive and deceitful
gaming, many persons of ill fame and reputation, who have
no visible means of subsistence, do keep houses, rooms, and
other places for playing, and do permit persons therein to play
at cards, dice and other devices, for large sums of money, by
means whereof divers young and unwary persons and others
are drawn in to lose the greatest part, and sometimes all their
substance ; and it frequently happens they are thereby reduced
to the utmost necessities, and betake themselves to the most
wicked courses, which end in their utter ruin: And whereas a
certain pernicious game called rouwlet or roly-poly, is daily prac-
tised, and the laws now in being have by experience been found
ineffectual to put a stop to such pernicious practices :” For
remedy whereof may it please your majesty that it may be
enacted, and be it enacted by the king’s most excellent majesty,
by and with the advice and conseut of the lords spiritual and
temporal, and commons, in this present parliament assembled,
and by the authority of the same, That from and after the
twenty-fourth day of June, one thousand seven hundred and
forty-five, no person or persons, of what condition soever, shall
keep any house, room or place for playing, or permit or suffer
any person or persons whatsoever, within any such house, room
or place to play at the said game of roulet, otherwise roly-poly,
or at any other game, with cards or dice, already prohibited by
the laws of this realm ; and in case any person or persons
whatsoever shall keep any such house, room or place for
playing, or permit or suffer any person or persons as aforesaid
to play at the said game of roudet, otherwise roly-poly, or at any
other game, with cards or dice, already prohibited by law, such
person or persons so offending shall incur the pains and penal-
ties, and be liable to such prosecution as is directed in and by
an Act made in the twelfth year of the reign of his present
majesty, intituled “An Act for the more effectual preventing
excessive and deceitful Gaming.”

(x) Repealed by 5 & 6 Vict. c. 97, s. 2.
STATUTES.

2. If any person or persons whatsoever shall after the said
twenty-fourth day of June, one thousand seven hundred and
forty-five, play at the said game of roulet, otherwise roly-poly,
or at any game or games with cards or dice, already prohibited
by law, every such person or persons so offending shall also
incur the pains and penalties, and be liable to such prosecu-
tion, as is directed in and by an act made in the twelfth year
of the reign of his present majesty, intituled “ An Act for the
more effectual preventing excessive and deceitful Gaming.”

4. And for the more easy conviction of persons offending
against this or any other former Act, for preventing excessive
and deceitful gaming, be it enacted by the authority aforesaid,
That it shall and may be lawful to and for such person or
persons who have jurisdiction to hear and determine infor-
mations upon the statutes against excessive and deceitful
gaming, upon any information exhibited before them, for any
offence committed against this Act, or against this statute made
in the twelfth year of his present majesty, intituled “ An Act
for the more effectual preventing of excessive and deceitful
Gaming ;” or against one other Act made in the thirteenth
year of the reign of his present majesty, intituled “‘ An Act to
restrain and prevent the excessive Increase of Horse Races,
and for amending an Act made in the last Session of Parlia-
ment, intituled ‘An Act for the more effectual preventing
excessive and deceitful Gaming ;’” to summon any person or
persons other than the party accused, to appear before them
ata certain day, time, and place, to be inserted in such sum-
mons, and to give evidence for the discovery of the truth of
the matter in the said information contained; and in case of
neglect or refusal to appear, or if upon appearance such person
or persons shall refuse to give evidence, or shall give any false
evidence, every such person or persons so offending shall
forfeit and lose the sum of Fufty pounds, to be levied by distress
and sale of the offender’s goods and chattels, by warrant under
the hands and seals of such persons issuing such summons as
aforesaid ; and in case such person or persons not appearing, or
neglecting, or refusing to give such evidence, or giving any
false evidence, shall not have sufficient goods and chattels
whereon to levy the said sum of /ifty pounds, every such
person or persons shall be by such person or persons having
jurisdiction as aforesaid committed to the common gaol for the
county, city or place where such offence shall be committed,
there to remain for the space of s¢z months without bail or
mainprize.

5. No person or persons other than the parties plaintiff and
defendant in the cause shall be incapacitated from being a
witness, touching any offence committed against the laws for
preventing excessive and deceitful gaming, by reason of having

Oo. K K

497

Persons
playing shall
incur the
penalties of
12 Geo. 2,
c. 28.

On informa-
tion for any
offence
against this
act, or

12 Geo. 2,
c. 28, or

13 Geo. 2,
& 19,

persons may
be summoned
to give
evidence.

No person
incapable o
being a
witness, &c.
498

Proviso for
royal palaces,
&e.

No privilege
of parliament,
&e.

16 Car. 2, ¢. 7.

10 Will. 3, (I.)

9 Ann. c. 14.

‘11 Ann. (I.)

APPENDIX.

played, betted or staked at any game prohibited by this or any
of the said statutes.

6. Provided also, that nothing in this Act contained shall
extend to prevent or hinder any person or persons from playing
at any game whatsoever within any of his majesty’s royal
palaces wherein his majesty, his heirs and successors, shall then
actually reside.

7. No privilege of parliament shall be allowed to any person
or persons whatsoever against whom any prosecution or pro-
ceedings shall be commenced or had for keeping of any public
or common gaming-house, or any house, room or place for
playing at any game or games prohibited by this or any other
Act now in being against excessive or deceitful gaming, any law,
usage or custom to the contrary in anywise notwithstanding,

5 & 6 Witt. IV. Cap. 41.

An Act to amend the Law relating to Securities gwen for Con-
siderations arising out of gaming, usurious and certain other
illegal Transactions.

Whereas by an Act passed in the sixteenth year of the reign
of his late majesty King Charles the Second, and by an Act
passed in the parliament of Ireland in the tenth year of the
reign of his late majesty King William the Third, each of such
Acts being intituled “An Act against deceitful, disorderly and
excessive Gaming,” it was enacted, that all and singular judg-
ments, statutes, recognizances, mortgages, conveyances, assur-
ances, bonds, bills, specialties, promises, covenants, agreements,
and other acts, deeds and securities whatsoever, which should
be obtained, made, given, acknowledged, or entered into for
security or satisfaction of or for any money or other thing lost
at play or otherwise as in the said Acts respectively is men-
tioned, or for any part thereof, should be utterly void and of
none effect : and whereas by an Act passed in the ninth year of
the reign of her late majesty Queen Anne, and also by an Act
passed in the parliament of Ireland in the eleventh year of the
reign of her said late majesty, each of such Acts being intituled
“An Act for the better preventing of excessive and deceitful
Gaming,” it was enacted, that from and after the several days
therein respectively mentioned all notes, bills, bonds, judgments,
mortgages or other securities or conveyances whatsoever, given,
granted, drawn, or entered into or executed by any person or
persons whatsoever, where the whole or any part of the con-
sideration of such conveyances or securities should be for any
money or other valuable thing whatsoever won by yaming or
STATUTES.

playing at cards, dice, tables, tennis, bowls, or other game or
games whatsoever, or by betting on the sides or hands of such as
did game at any of the games aforesaid, or for the reimbursing or
repaying any money knowingly lent or advanced for such gaming
or betting as aforesaid, or lent or advanced at the time and place
of such play to any person or persons so gaming or betting as
aforesaid, or that should, during such play, so play or bet, should
be utterly void, frustrate, and of none effect, to all intents and
purposes whatsoever; and that where such mortgages, securities,
or other conveyances, should be of lands, tenements, or here-
ditaments, or should be such as should encumber or affect the
same, such mortgages, securities, or other conveyances should
enure and be to and for the sole use and benefit of and should
devolve upon such person or persons as should or might have
or be entitled to such lands or hereditaments in case the said
grantor or grantors thereof, or the person or persons so incum-
bering the same, had been naturally dead, and as if such
mortgages, securities, or other conveyances had been made to
such person or persons so to be entitled after the decease of
the person or persons so encumbering the same; and that all
grants or conveyances to be made for the preventing of such
lands, tenements, or hereditaments from coming to or de-
volving upon such person or persons thereby intended to
enjoy the same as aforesaid should be deemed fraudulent and
void and of none effect, to all intents and purposes what-
soever : and whereas by an Act [Recital of effect of 12 Ann,
Stat. 2, c. 16, and 58 Geo. 3, c. 93, relating to usurious trans-
actions, and of 6 Geo. 4, c. 16, relating to transactions with
bankrupts, and of 45 Geo. 3, c. 72, relating to transactions for
ransoms of ships]: and whereas securities and instruments
made void by virtue of the several hereinbefore recited Acts of
the sixteenth year of the reign of his said late majesty King
Charles the Second, the tenth year of the reign of his said late
majesty King William the Third, the ninth and eleventh years
of the reign of her said late majesty Queen Anne, the eleventh
and twelfth years of the reign of his said late majesty King
George the Third, the forty-fifth year of the reign of his said
late majesty King George the Third, and the sixth year of the
reion of his said late majesty King George the Fourth, and
securities and instruments made void by virtue of the said Act
of the twelfth year of the reign of her said late majesty Queen
Anne and the fifth year of the reign of his said late majesty
King George the Second, other than bills of exchange or pro-
missory notes made valid by the said act of the fifty-eighth
year of the reign of his said late majesty King George the
Third, are sometimes indorsed, transferred, assigned or con-
veyed to purchasers or other persous for a valuable considera-
tion, without notice of the original consideration for which such

K K 2

499
500

Securities
given for con-
siderations
arising out of
illegal trans-
actions not
to be void,
but to be
deemed to
have been
given for an
illegal con-
sideration.

Money paid
to the holder
of such securi-
ties shall be
deemed to be
paid on ac-
count ot the
person to
whom the
same was
originally
given.

APPENDIX.

securities or instruments were given; and the avoidance of
such securities or instruments in the hands of such purchasers
or other persons is often attended with great hardship 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 temperal, and commons, in this present
parliament assembled, and by the authority of the same, That
so much of the hereinbefore recited Acts of the sixteenth year
of the reign of his said late majesty King Charles tne Second,
the tenth year of the reign of his said late majesty King
Willian the Third, the ninth, eleventh and twelfth years of
the reign of her said late majesty Queen Anne, the fifth year
of the reign of his said late majesty King George the Second,
the eleventh and twelfth and the forty-fifth years of the reign
of his said late majesty King George the Third, and the sixth
year of the reign of his said late majesty King George the
Fourth, as enacts that any note, bill or mortgage shall be
absolutely void, shall be and the same is hereby repealed ; but
nevertheless every note, bill or mortgage, which if this act had
not been passed would, by virtue of the said several lastly here-
inbefore mentioned acts or any of them, have been absolutely
void, shall be deemed and taken to have been made, drawn,
accepted, given or executed for an ¢/egal constderation, and the
said several acts shall have the same force and effect which they
would respectively have had if instead of enacting that any
such note, bill or mortgage should be absolutely void, such acts
had respectively provided that every such note, bill or mort-
gage should be deemed and taken to have been made, drawn,
accepted, given or executed for an illegal consideration: Pro-
vided always, that nothing herein contained shall prejudice or
affect any note, bill or mortgage which would have been good
or valid if this act had not been passed.

2. In case any person shall, after the passing of this act,
make, draw, give or execute any note, bill or mortgage for any
consideration on account of which the same is by the herein-
before recited Acts of the sixteenth vear of the reign of his said
late majesty King Charles the Second, the tenth year of the
reign of his said late majesty King William the Third, and the
ninth and eleventh years of the reign of her said late majesty
Queen Anne, or by any one or more of such acts, declared to
be void, and such person shall actually pay to any indorsee,
holder or assignee of such note, bill or mortgage the amount of
the money thereby secured, or any part thereof, such money so
paid shall be deemed and taken to have been paid for and on
account of the person to whom such note, bill or mortgage was
originally given upon such illegal consideration as aforesaid,
and shall be deemed and taken to be a debt due and owing
from such last-named person to the person who shall have so
STATUTES.

ra
paid such money, and shall accordingly be recoverable by action
at law in any of his majesty’s courts of record.

3. So much of the said Acts of the ninth and eleventh years
of the reign of her said late majesty Queen Anne as enacts that
where such mortgages, securities or other conveyances as
therein mentioned should be of lands, tenements or heredita-
ments, or should be such as should incumber or affect the
same, such mortgages, securities or other conveyances should
enure and be to and for the sole use and benefit of and should
devolve upon such person or persons as should or might have
or be entitled to such lands or hereditaments in case the
grantor or grantors thereof, or the person or persons incumber-
ing the same, had been naturally dead, and as if such mort-
gages, securities, or other conveyances had been made to such
person or persons so to be entitled after the decease of the
person or persons so incumbering the same, and that all grants
or conveyances to be made for the preventing of such lands,
tenements or hereditaments from coming to or devolving upon
such person or persons thereby intended to enjoy the same
as aforesaid, should be deemed fraudulent and void and of
none effect, to all intents and purposes whatsoever, shall be
and the same is hereby repealed; saving to all persons all
rights acquired by virtue thereof previously to the passing of
this Act.

8 & 9 Vicor. Cap. 109.

An Act to amend the Law concerning Games and Wagers.

Whereas the laws heretofore made in restraint of unlawful
gaming have been found of no avail to prevent the mischiefs
which may happen therefrom, and also apply to sundry games
of skill from which the like mischiefs cannot arise; be it
enacted by the queen’s most excellent majesty, by and with the
advice and consent of the lords spiritual and temporal, and
commons, in this present parliament assembled, and by the
authority of the same, That so much of an Act passed in the
thirty-third year of the reign of King Henry the Eighth,
intituled “The Bill for maintaining Artillery, and the debarring
of unlawful Games,” whereby any game of mere skill, such as
bowling, coyting, cloyshcayls, half bowl, tennis, or the like, is
declared an unlawful game, or which enacts any penalty for
playiug at any such game of skill as aforesaid, or which enacts
any penalty for lacking bows or arrows, or for not making and
continuing butts, or which regulates the making, selling or
using of bows and arrows, and also so much of the said Act
as requires the mayors, sheritfs, bailiffs, constables, and other
head officers within every city, borough and town within this
realm, to make search weekly, or at the farthest once a month,

501

Repealing

so much of
recited acts of
9 & 11 Ann.
as enacts that
securities
shall enure for
the benefit of
parties in
remainder.

Repeal of
part of

33 Hen. 8,
c. 9.
502

What shall
be sufficient
evidence that
a house is a
common
gaming house.

Power of
justices ma
be exercise
under

warrant.”

APPENDIX.

in all places where houses, alleys, plays, or places of dicing,
carding or gaming shall be suspected to be had, kept and
maintained, shall be repealed, and also so much of the said act
as makes it lawful for every master to license his or their
servants, and for every nobleman and other having manors,
lands, tenements, or other yearly profits for term of life, in his
own right or in his wife’s right, to the yearly value of a
hundred pounds, or above, to command, appoint or license, by
his or their discretion, his or their servants or family of his or
their house or houses to play at cards, dice or tables, or any
unlawful game, as therein more fully set forth, shall be
repealed: and that no such commandment, appointment or
licence shall avail any person to exempt him from the danger
or penalty of playing at any unlawful game or in any common
gaming house.

2. And whereas doubts have arisen whether certain houses,
alleged or reputed to be opened for the use of the subscribers
only, or not open to all persons desirous of using the same, are
to be deemed common gaming houses; be it declared and
enacted, That, in default of other evidence proving any house
or place to be a common gaming house, it shall be sufficient, in
support of the allegation in any indictment or information that
any house or place is a common gaming house, to prove that
such house or place is kept or used for playing therein at any
unlawful game, and that a bank is kept there by one or more of
the players exclusively of the others, or that the chances of any
game played therein are nvt alike favourable to all the players,
including among the players the banker or other person by
whom the game is managed, or against whom the other players
stake, play or bet ; and every such house or place shall be
deemed a common gaming house, such as is contrary to law
and forbidden to be kept by the said Act of King Henry the
Eighth, and by all other Acts containing any provision against
unlawful games or gaming houses.

3. In every case (except within the metropolitan police
district) in which the justices of peace in every shire, and
mayors, sheriffs, bailiffs and other head officers within every
city, town and borough within this realm, now have by law
authority to enter into any house, room or place, where unlaw-
ful games shall be suspected to be holden, it shall be lawful for any
justice of the peace, upon complaint made before him on oath
that there is reason to suspect any house, room or place to be
kept or used as a common gaming house, to give authority, by
a special warrant under his hand, when in his discretion he shall
think fit, to any constable, to enter, with such assistance as
may be found necessary, into such house, room or place, in like
manner as might have been done by such justices, mayors,
sheriffs, bailiffs or other head officers, and, if necessary, to use
STATUTES.

force for making such entry, whether by breaking open doors or
otherwise, and to arrest, search and bring before a justice of
peace all such persons found therein as might have been
arrested therein by such justice of peace had he been personally
present ; and all such persons shall be dealt with according to
law, as if they had been arrested in such house, room or place
by the justice before whom they shall be so brought ; and any
such warrant may be in the form given in the first schedule
annexed to this Act.

4, The owner or keeper of any common gaming house and
every person having the care or management thereof, and also
every banker, croupier and other person who shall act in any
manner in conducting the business of any common gaming
house, shall, on conviction thereof, by his own confession, or by
the oath of one or more credible witnesses, before any two
justices of the peace, beside any penalty or punishment to which
he may be liable under the provisions of the said Act of King
Henry the Kighth, be liable to forfeit and pay such penalty, not
more than one hundred pounds, as shall be adjudged by the
Justices before whom he shall be convicted, or, in the
discretion of the justices before whom he shall be convicted,
may be committed to the house of correction, with or without
hard labour, for any time not more than six calendar months ;
and on nonpayment of any penalty so adjudged, and of the
reasonable costs and charges attending the conviction, the same
shall be levied by distress and sale of the goods and chattels of
the offender, by warrant under the hand and seal of one of the
convicting justices: Provided always, that nothing herein
contained shall prevent any proceeding by indictment against
the owner or keeper or other person having the care or man-
agement of a common gaming house; but no person who shall
have been summarily convicted of any such offence shall be
liable to be proceeded against by indictment for the same
offence.

5. It shall not be necessary in support of any information
for gaming in, or suffering any games or gaming in, or for
keeping or using, or being concerned in the management or
conduct of a common gaming house, to prove that any person
found playing at any game was playing for any money, wager
or stake.

6. If any superintendent belonging to the metropolitan police
force shall report in writing to the commissioners of police of
the metropolis that there are good grounds for believing, and
that he does believe, that any house, room or place within the
metropolitan police district (0), is kept or used as a common
gaming house, it shall be lawful for either of the said commis-

(0) See 2 & 3 Vict. c. 4, s. 48.

503

Penalties on
gaming-house
keepers, &c.

Proof of
gaming tor
money, &c.
not necessary
in support of
informations
for gaming.

Commission- —
ers of police
may authorize
superintendent
and constables
to enter
gaming houses
and seize all
504

instruments of
gaming and
take into
custody all
persons found
therein.

Police super-
intendent may
search for
instruments
of gaming.

What shall
be deemed

evidence of
gaming.

Indemnity of
witnesses.

APPENDIX.

sioners, by order in writing, to authorize the superintendent to
enter any such house, room or place, with such constables as
shall be directed by the commissioner to accompany him, and,
if necessary, to use force for the purpose of effecting such
entry, whether by breaking open doors or otherwise, and to take
into custody all persons who shall be found therein, and to
seize all tables and instruments of gaming found in such house
or premises, and also to seize all monies and securities for
money found therein.

7. It shall be lawful for the police superintendent making
such entry as aforesaid in obedience to any such order of one of
the commissioners of police of the metropolis, with the assist-
ance of any constable or constables accompanying him, to
search all parts of the house, room or place which he shall
have so entered, where he shall suspect that tables’ or instru-
ments of gaming are concealed, and all persons whom he shall
find therein, and to seize all tables and instruments of gaming
which he shall so find.

8. Where any cards, dice, balls, counters, tables or other
instruments of gaming used in playing any unlawful game shall
be found in any house, room or place, suspected to be used asa
common gaming house, and entered under a warrant or order
issued under the provisions of this Act, or about the person of
any of those who shall be found therein, it shall be evidence,
until the contrary be made to appear, that such house, room or
place, is used as a common gaming house, and that the persons
found in the room or place where such tables or instruments of
gaming shall have been found were playing therein, although no
play was actually going on in the presence of the superintendent
or constable entering the same, under a warrant or order issued
under the provisions of this Act, or in the presence of those
persons by whom he shall be accompanied as aforesaid ; and it
shall be lawful for the police magistrate or justices before whom
any person shall be taken by virtue of the warrant or order to
direct all such tables and instruments of gaming to be forth-
with destroyed.

9. And for the more effectual prosecution of the keepers of
common gaming houses, be it enacted, that every person who
shall have been concerned in any unlawful gaming, and who
shall be examined as a witness by or before any police magis-
trate or justice of the peace, or on the trial of any indictment
or information against the owner or keeper or other person
having the care or management of any common gaming house,
touching such unlawful gaming, and who upon such exami-
nation shall make true and faithful discovery to the best of
his or her knowledge of all things as to which he or she shall
be so examined, and shall thereupon receive from the magis-
trate or justice of the peace or judge of the court by or before
STATUTES.

whoni he or she shall be so examined a certificate in writing to
that effect, shall be freed from all criminal prosecutions, and
from all forfeitures, punishments and disabilities, to which he
or she may have become liable for any thing done before that
time in respect of such unlawful gaming.

10. The justices in every division, district and place in
England, for which a special session of the justices of the peace
(called the general annual licensing meeting) is holden annually
for granting licences to persons keeping or being about to keep
inns, alehouses and victualling houses, to sell exciseable liquors
by retail, to be drunk or consumed on the premises therein
specified, shall have authority at such general annual licensing
meeting, or at any adjournment thereof, to grant billiard
licences to such persons as the said justices shall in their dis-
cretion deem fit and proper to keep public billiard tables and
bagatelle boards, or instruments used in any game of the like
kind, and at the special sessions holden for transferring licences
to keep inns shall have authority to transfer such billiard
licences to such other persons as they in their discretion shall
deem fit and proper to continue to hold the same, and who in
each case shall be required to give the like notice of their inten-
tion to apply for such billiard licence, (p) and entitled to receive
the like notice of the licensing days, as is required in the case
of persons intending to apply for a licence or the transfer of a
licence to sell exciseable liquors by retail to be drunk or con-
sumed on the premises, or as near thereto as the case will allow ;
and every such billiard licence shall be in the form given in the
third schedule annexed to this act, and shall continue in force
in the counties of Middlesex and Surrey from the fifth day of
April, and elsewhere from the tenth day of October, after the
granting thereof, for one whole year thence respectively next
ensuing, and no longer ; and the clerk of the justices shall be
entitled to demand and receive from every person licensed
under this act, for the petty constable or other peace officer
for serving notices and other services required of him, the sum
of One shilling, and for the clerk of the justices, for the
licence, the sum of J%ve shillings; and every clerk who shall
demand or receive from any persou for such fees more than
the said sums, being together Str shillings, shall for every
such offence, on conviction before one justice, forfeit and pay
the sum of Five pounds.

11. After the fifth day of April, 1846, in the counties of
Middlesex and Surrey, and elsewhere after the tenth day of
October next after the passing of this Act, every house, room
or place kept for public billiard playing, or where a public
billiard table or bagatelle board, or instrument used in any

(p) The words in italics were repealed by the Statute Law Revision Act,
1875.

Justices may
grant billiard
licences at
licensing
sessions.

Places kept
for public
billiard tables
to be licensed.
506

9 Geo. 4, ¢. 61.

Notice that
such places
are licensed
for billiards
to be put up.

Penalties for
offences
against tenor
ot licences.

9 Geo. 4, c. 61.

APPENDIX.

game of the like kind is kept, at which persons are admitted
to play, except in houses or premises specified in any licence
granted under an Act passed in the ninth year of the reign of
King George the Fourth, intituled “An Act to regulate the
granting of Licences to Keepers of Inns, Ale-houses, and
Victualling Houses in England,” hereinafter called a Victualler’s
Licence, shall be licensed under this Act; and after the said
fifth day of April in Middlesex and Surrey, and elsewhere after
the said tenth day of October, every person keeping any such
public billiard table or bagatelle board, or instrument used in
any game of the like kind for public use, without being duly
licensed so to do, and not holding a victualler’s licence for the
house or premises where such billiard table, bagatelle board,
or other instrument as aforesaid is kept or used, and also every
person licensed under this Act who shall not during the con-
tinuance of such billiard licence put and keep up the words
“Licensed for Billiards,” legibly painted in some conspicuous
place near the door and on the outside of the house specified
in the licence, shall be liable to be proceeded against as the
keeper of a common gaming house, and, beside any penalty or
punishment to which he may be liable if convicted of keeping
a common gaming house, shall, on conviction of keeping such
unlicensed billiard table, bagatelle board, or other instrument
as aforesaid, by his own confession, or by the oath of one or
more credible witnesses before any police magistrate or any
two justices of the peace, be liable to pay such penalty, not
more than Z’en pounds for every day on which such billiard
table, bagatelle board, or instrument as aforesaid shall be used,
as shall be adjudged by the magistrate or justices before whom
he shall be convicted, or, in the discretion of the magistrate or
justices, may be committed to the house of correction, with or
without hard labour, for any time not more than one calendar
month; . . . . (y) but no person who shall have been
summarily convicted of any such offence shall be liable to be
further proceeded against by indictment for the same offence.
12. Every person licensed under this Act, who shall be con-
victed before a police magistrate or two justices acting in and
for the division or place in which shall be situated the house
kept or theretofore kept by such person of any offence against
the tenor of the licence to him granted, shall be liable to the
same penalties and punishments in the case of a first, second
or third offence respectively to which persons licensed under
an Act passed in the ninth year of the reign of King George
the Fourth, intituled “An Act to regulate the granting of
Licences to Keepers of Inns, Alehouses, and Victualling Houses
in England,” are respectively liable on conviction of a first,

(q) The omitted portion of this section was repealed by the Summary Juris-
diction Act, 1884.
STATUTES,

second or third offence, against the tenor of the licence granted
to them under the last-recited Act, or as near thereunto as the
nature of the case will allow; and all the provisions of the
last-recited Act with respect to convictions and penalties for
offences against the last-recited Act, and the proceedings for
enforcing the same, and to the expenses of prosecution and
penalties on witnesses for not attending and the recovery and
application of penalties, and the proceedings on appeals against
convictions, and the award of costs on appeals, and in actions
against justices, constables or other persons, for anything done
in the execution of the last-recited Act, shall be deemed to
apply, so far as they are applicable, to convictions for offences
against the tenor of the licences granted under this Act, and
to the proceedings consequent thereupon or connected there-
with, as if they were herein re-enacted.

18. Every person keeping any public billiard table or baga-
telle board, or instrument used in any game of the like kind,
whether he be the holder of a victualler’s licence or licensed
under this Act, who shall allow any person to play at such
table, board or instrument, after one and before eight of the
clock in the morning of any day, or at any time on Sundays,
Christmas Day, or Good Friday, or any day appointed to be
kept as a public fast or thanksgiving; and every person
holding a victualler’s licence who shall allow any person to
play at such table, board or instrument, kept on the premises
specified in such victualler’s licence at any time when such
premises are not by law allowed to be open for the sale of wine,
spirits or beer, or other fermented or distilled liquors, shall be
liable to the penalties herein provided in the case of persons
keeping such public billiard table, bagatelle board or instru-
ment, as aforesaid for public use without licence ; and during
those times when play at such table, board or instrument, is
not allowed by this Act, every house licensed under this Act,
and every billiard room in every house specified in any victual-
ler’s licence, shall be closed, and the keeping of the same open,
or allowing any person to play therein or thereat, at any of the
times or on any of the days during which such play is not
allowed by this Act, shall be deemed in each case an offence
against the tenor of the licence of the person so offending.

14. It shall be lawful for all constables and officers of police
to enter into any house, room or place where any public table
or board is kept for playing at billiards, bagatelle or any game
of the like kind, when and so often as such constables and
officers shall think proper; and every person licensed under
the said Act of the ninth year of the reign of King George the
Fourth, or under this Act, who shall refuse to admit or who
shall not admit any such constable or officer of police into such
house, room or place shall, on conviction thereof before a

507

When billiard
playing shall
not be
allowed.

Empowering
constables to
visit licensed
houses.
508

Cheating at
play to be
punished as
obtaining
money by
false
pretences.

Wagers not
recoverable
at law.

Appeal to
quarter
sessions.

APPENDIX.

police magistrate or any two justices of the peace, be deemed
guilty of an offence against the tenor of his licence, whether
the same be a billiard licence or a victualler’s licence, and in
the case of a first, second, third or subsequent offence shall be
punished accordingly (1).

15. [Repeal of the provisions of 16 Car. 2, «7; 9 Anne,
c. 14; and 18 Geo. 2, c. 34, against excessive gaming (s). |

17. Every person who shall, by any fraud or unlawful device
or all practice, in playing at or with cards, dice, tables or other
game, or in bearing a part in the stakes, wagers, or adventures,
or in betting on the sides or hands of them that do play, or in
wagering on the event of any game, sport, pastime or exercise,
win from any other person to himself, or any other or others,
any sum of money or valuable thing, shall be deemed guilty of
obtaining such money or valuable thing from such other person
by a false pretence, with intent to cheat or defraud such person
of the same, and, being convicted thereof, shall be punished
accordingly.

18. All contracts or agreements, whether by parol or in
writing, by way of gaming or wagering, shall be null and void ;
and no suit shall be brought or maintained in any court of
law or equity for recovering any sum of money or valuable
thing alleged to be won upon any wager, or which shall have
been deposited in the hands of any person to abide the event
on which any wager shall have been made: provided always,
that this enactment shall not be deemed to apply to any sub-
scription or contribution, or agreement to subscribe or con-
tribute, for or towards any plate, prize, or sum of money to be
awarded to the winner or winners of any lawful game, sport,
pastime or exercise.

19. [Proceedings under feigned issues abolished (¢)].

20. Any person who shall be summarily convicted under
this Act may appeal to the next general or quarter sessions
of the peace... . (uw); and it shall be lawful for the
magistrate or justices by whom such conviction shall have
been made to bind over the witnesses who shall have been
examined in sufficient recognizances to attend and be examined
at the hearing of such appeal ; and that every such witness, on
producing a certificate of being so bound, under the hand of
the said magistrate or justices, shall be allowed compensation
for his or her time, trouble and expenses in attending the
appeal, which compensation shall be paid in the first instance
by the treasurer of the county or place, in like manner as in

(r) The words in italics were re- (¢) Repealed by the Statute Law
pealed by the Statute Law Revision Revision Act, 1892.
Act, 1875. (w) The omitted portion of this

(s) This section was repealed by _ section was repealed by the Summary
the Statute Law Revision Act, 1875. Jurisdiction Act, 1884.
STATUTES,

cases of misdemeanor, under the provisions of an act passed in
the seventh year of the reign of King George the Fourth,
intituled “ An Act for improving the Administration of Criminal
Justice in England,” and in case the appeal shall be dismissed,
and the order or conviction affirmed, the reasonable expenses of
all such witnesses attending as aforesaid, to be ascertained
by the court, shall be repaid to the said treasurer by the
appellant.

21. When any distress shall be made for any money to be
levied by virtue of the warrant of any justice under this Act,
the distress shall not be deemed unlawful, nor shall any party
making the same be deemed a trespasser, on account of any
defect or want of form in the information, summons, warrant of
apprehension, conviction, warrant of distress, or other proceed-
ing relating thereto, nor shall such party be deemed a trespasser
from the beginning on account of any irregularity which shall
be afterwards committed by him ; but all persons aggrieved by
such defect or irregularity may recover full satisfaction for the
special damage by an action on the case in any of her majesty’s
courts of record.

22. [Plaintiff not to recover after tender of amends (2). ]

23. [Limitation of actions. ]

24. And be it enacted, That in Ireland the term “ metro-
politan police force,” and the terms “commissioners of the
police of the metropolis,” and the terms “ metropolitan police
district,” shall mean and include respectively the Dublin metro-
politan police force, the commissioners of police of Dublin
metropolis, and the police district of Dublin metropolis.

25. And be it enacted, That no information, conviction or
other proceeding before or by any justice or justices under this
Act shall be quashed or set aside, or adjudged void or insufficient,
for want of form, or be removed by certiorari into her majesty’s
Court of Queen’s Bench.

The First ScHEDuLE to which the foregoing Act refers.

Form of Warrant.
County of | To the constable

“Whereas it appears to me, J. P., one of the justices of our lady the
queen, assigned to keep the peace in the said county, by the information
on oath of 4. B. of , in the county of ——, yeoman, that the house
{**room ” or “place ’’] known as [here insert a description of the house, room
or place by which it may be readily known and found], is kept and used as a
common gaming house within the meaning of an Act passed in the ——
year of the reign of her majesty Queen Victoria, intituled [here insert the
title of this Act]:

 

(z) This section and s. 23 were re- Act, 1894. See now the Public
pealed by the Statute Law Revision Authorities Protection Act, 1893.

509

7 Geo. 4, c. 64.

Distress not
unlawful for
want of form.

Construction
ot terms.

Conviction,
&c. not to be
quashed for
informality,
&e.
510

APPENDIX.

This is, therefore, in the name of our lady the queen, to require you
with such assistants as you may find necessary, to enter into the said house
[**room” ov ‘“place’’], and, if necessary, to use force for making such
entry, whether by breaking open doors or otherwise, and there diligently
to search for all instruments of unlawful gaming which may be therein,
and to arrest, search and bring before me, or some other of the justices of
our lady the queen assigned to keep the peace within the county of ——, as
well the keepers of the same as also the persons there haunting, resorting
and playing, to be dealt with according to law; and for so doing this shall
be your warrant.

J.P. (u.8.)

, in the county of ——, this ——
, in the —— year of the reign of ——.

 

Given under my hand and seal at
day of

 

The Seconp ScHEDULE to which the foregoing Act refers.

In the Court of Queen’s Bench [‘‘ Common Pleas,” or ‘¢ Exchequer,”
or in any wferior court, as the case may be].
Middlesex to wit, [or such other county as may be directed]
Whereas 4. B. affirms and C. D. demes [here state fully the fact or facts
in issuc], and the lord chancellor [or such other court, §¢.] is desirous of
ascertaining the truth by the verdict of a jury, and both parties pray that
the same may be inquired of by the country : Now let the jury, &c.

 

The THirp ScHEDULE to which the foregoing Act refers.

Porm of Licence.

At the general licensing annual meeting [or ‘“‘an adjournment of the
general annual licensing meeting,” ov “at a special petty session” ] of her
majesty’s justices of the peace acting for the division [or “liberty,” &c.,
as the case may be], of —— in the county of , holden at on
the day ot , in the year , tor the purpose of granting billiard
licences, we being of her majesty’s justices of the peace acting
for the said county [or ‘* liberty,” &c., as the case may be], and being the
majority of those assembled at the said sessions, do hereby authorize
and empower A. L., now dwelling at , in the parish of , to
keep a house for public billiard playing at [here specify the house], provided
that he [or ‘‘she”] put and keep up the words “licensed for billiards”
legibly painted in some conspicuous place near the door and on the outside
of the said house, and do not wilfully or knowingly permit drunkenness
or other disorderly conduct in the said house, and do not knowingly allow
the consumption of exciseable liquors therein by the persons resorting
thereto, and do not knowingly sufter any unlawful games therein, and do
not knowingly suffer persons of notoriously bad character to assemble and
meet together therein, and do not open the said house for play or allow
any play therein after one and before eight of the clock in the morning, or
keep it open or allow any play therein on Sundays, Christmas Day, or
Good Friday, or on any day appointed for a public fast or thanksgiving,
but do maintain good order and rule therein; and this licence shall continue
in force from the day of —— next until the day of —— then next
following, and no longer.

Given under our hands and seals on the day and at the place first
written.

 

 

 

 

 

 

 

 

 

 
STATUTES.

9 & 10 Vicor. Car. 48.

An Act for legalizing Art Unions.

Whereas certain voluntary associations have been and may
hereafter be formed in various parts of the United Kingdom,
under the name of Art Unions, for the purchase of paintings,
drawings, or other works of art, to be afterwards allotted and
distributed, by chance or otherwise, among the several mem-
bers, subscribers or contributors forming part of such associa-
tions, or for raising sums of money by subscription or contribu-
tion, to be allotted and distributed, by chance or otherwise, as
prizes, amongst the members, subscribers, or contributors form-
ing part of such associations, on the condition, nevertheless,
that such sums of money so allotted and distributed be ex-
pended solely and entirely in the purchase of paintings, draw-
ings or other works of art, and whereas such allotment and
distribution of paintings, drawings, or other works of art, or of
sums of money for their purchase, and the proceedings taken
to carry the same into effect, may be deemed and taken to
come within the provisions of the several Acts of Parliament
passed for the prevention of lotteries, littlegoes, and unlawful
games, whereby the members, subscribers, or contributors of
such associations as aforesaid, or persons acting under their
authority or on their behalf, may be liable or subjected to
certain pains and penalties imposed by law on persons concerned
in lotteries, littlegoes, and unlawful games: and whereas it is
expedient that all members of and subscribers and contributors
to such voluntary associations as aforesaid, and all persons
acting under their authority or on their behalf, so long only as
their proceedings are carried on in good faith for the en-
couragement of the fine arts, shall be discharged and protected
from any pains and penalties to which they may have rendered
themselves liable, or may hereafter render themselves liable, by
reason of any such their proceedings as aforesaid : be it enacted
by the queen’s most excellent majesty, by and with the advice
and consent of the lords spiritual and temporal, and commons,
in this present parliament assembled, and by the authority of
the same, That all such voluntary associations as aforesaid,
now constituted, or which may hereafter be constituted accord-
ing to the provisions hereinafter contained, shall be deemed to
be lawful associations ; and the members of and subscribers
and contributors to all such lawful associations, and all persons
acting under their authority or on their behalf for the purposes
aforesaid, shall be freed and discharged from all pains and
penalties, suits, prosecutions and liabilities, to which by law
they would be liable but for the passing of this Act, as
being concerned in illegal lotteries, littlegoes, or unlawful

511

Voluntary
associations
constituted
for the
distribution of
works of art
by lot deemed
legal, pro-
vided a royal
charter shall
have been
first obtained,
&e.
512

No house, &c.

to be kept for
purpose of
owner or
occupier
betting with

other persons.

APPENDIX.

games, by reason of anything done or which may be done
by them or any of them in furtherance of the allotment or
distribution, by scheme or otherwise, of paintings, drawings,
or other works of art, or of the allotment or distribution of
sum3 of money as prizes to be expended for their purchase:
provided always, that a royal charter or charters shall have
been first obtained for the incorporation of any such association,
or provided that the deed of partnership, or other instrument
or instruments constituting such association, and the rules and
regulations relating to the proceedings of such association for
such purposes as aforesaid, shall have first been submitted to
the consideration and be approved of by a committee of her
majesty’s most honourable privy council, and a copy thereof
deposited with such committee ; and that it shall be expressed
in every such charter, deed or instrument, that it shall be law-
ful for any committee of her majesty’s privy council to whom
the consideration of art unions shall be referred by her majesty,
whenever it shall appear to them that any such association is
perverted from the purposes of this Act, to certify the fact to
her majesty, and thereupon it shall be lawful for her majesty
to revoke or annul the charter, deed or instrument under
which the association so offending shall have been constituted ;
and nothing in this Act contained shall be deemed to apply to
any association whose charter, deed of partnership, or other
instrument constituting the same, shall have been so revoked
or annulled.

16 & 17 Vicor. Cap. 119.
An Act for the Suppression of Betting Houses.

Whereas a kind of gaming has of late sprung up, tending to the
injury and demoralization of improvident persons, by the opening
of places called betting houses or offices, and the receiving of money
in advance by the owners or occupiers of such houses or offices, or
by other persons acting ou their behalf, on their promises to pay
money on events of horse races and the like contingencies : for the
suppression thereof, be it enacted (y) :—

1. No house, office, room, or other place shall be opened,
kept, or used for the purpose of the owner, occupier, or keeper
thereof, or any person using the same, or any person procured
or employed by or acting for or on behalf of such owner,
occupier, or keeper, or person using the same, or of any
person having the care or management or in any manner con-

(y) This preamble was repealed the construction of the Act, and the
by the Statute Law Revision Act, preamble may, therefore, still be
1892, but such repeal is not to affect looked to for that purpose.
STATUTES,

ducting the business thereof, betting with persons resorting
thereto; or for the purpose of any money or valuable thing
being received by or on behalf of such owner, occupier, keeper,
or person as aforesaid as or for the consideration for any
assurance, undertaking, promise, or agreement, express or
implied, to pay or give thereafter any money or valuable thing,
on any event or contingency of or relating to any horse race,
or other race, fight, game, sport or exercise, or as or for the
consideration for securing the paying or giving by some other
person of any money or valuable thing, on any such event or
contingency as aforesaid; and every house, office, room, or
other place opened, kept, or used for the purposes aforesaid
or any of them, is hereby declared to be a common nuisance
and contrary to law.

2. Every house, room, office or place opened, kept or used
for the purposes aforesaid, or any of them, shall be taken and
deemed to be a common gaming house within the meaning of
an Act of the session holden in the eighth and ninth years fo
her majesty, chapter one hundred and nine, to amend the “ law
concerning games and wagers.”

3. Any person, who, being the owner or occupier of any
house, office, room, or other place, or a person using the same,
shall open, keep, or use the same for the purposes hereinbe-
fore mentioned, or either of them ; and any person who, being
the owner or occupier of any house, room, office, or other
place, shall knowingly and wilfully permit the same to be
opened, kept or used by any other person for the purposes
aforesaid or either of them ; and any person having the care
or management of or in any manner assisting in conducting
the business of any house, office, room or place opened, kept
or used for the purposes aforesaid, or either of them, shall,
on summary conviction thereof before any two justices of the
peace, be liable to forfeit and pay such penalty, not exceeding
One hundred pounds, as shall be adjudged by such justices, and
may be further adjudged by such justices to pay such costs
attending such conviction as to the said justices shall seem
reasonable ; and on the nonpayment of such penalty and
costs, or in the first instance, if to the said justices it shall
seem fit, may be committed to the common gaol or house of
correction, with or without hard labour, for any time not ex-
ceeding Six calendar months (2).

4. Any person, being the owner or occupier of any house,
office, room or place opened, kept or used for the purposes
aforesaid, or either of them, or any person acting for or on

(z) So much of this section and of Summary Jurisdiction Act, 1884.
8. 4, 48 prescribes the term of im- See s. 5 of the Act of 1879; and
prisonment for non-payment of pen- see also s. 17 of the same Act as to
alty and costs is repealed by the the right to claim a trial by jury.

oO. LL

135

Betting
houses to be
gaming
houses within
8 & 9 Vict.
c. 109.

Penalty on
owner or
occupier of
betting house.

Penalty on
persons
receiving
money on
condition of
514

paying money
on event of
any bet.

Money so
received may
be recovered
from the per-
sons receiving
the same.

This Act not
to extend to
stakes due to
owner of horse
winning a
race.

Penalty on
persons
exhibiting
placards or
advertismg
betting houses.

APPENDIX.

behalf of any such owner or occupier, or any person having
the care or management or in any manner assisting in con-
ducting the business thereof, who shall receive, directly or
indirectly, any money or valuable thing as a deposit on any
bet, on condition of paying any sum of money or other valuable
thing on the happening of any event or contingency of or re-
lating to a horse race or any other race, or any fight, game,
sport or exercise, or as or for the consideration for any assur-
ance, undertaking, promise or agreement, express or implied,
to pay or give thereafter auy money or valuable thing on any
such event or contingency, and any person giving any ac-
knowledgment, note, security or draft on the receipt of any
money or valuable thing so paid or given as aforesaid, pur-
porting or intended to entitle the bearer or any other person
to receive any money or valuable thing on the happening of
any such event or contingency as aforesaid, shall, upon sum-
mary conviction thereof before two jzstices of the peace, forfeit
and pay such penalty, not exceeding sity pounds, as shall be
adjudged by such justices, and may be further adjudged by
such justices to pay such costs attending such conviction as
to the said justices, shall seem reasonable ; and on the non-pay-
ment of such penalty and costs, or in the first instance, if to
such justices it shall seem fit, may be committed to the
common gaol or house of correction, with or without hard
labour, for any time not exceeding Three calendar months. (a)

5. Any money or valuable thing received by any such person
aforesaid, as a deposit on any bet, or as or for the consideration
for any such assurance, undertaking, promise or agreement as
aforesaid, shall be deemed to have been received to or for the
use of the person from whom the same was received, and
such money or valuable thing, or the value thereof, may be
recovered accordingly, with full costs of suit, in any court of
competent jurisdiction.

6. Provided always, that nothing in this Act contained shall
extend to any person receiving or holding any money or
valuable thing, by way of stakes or deposit to be paid to the
winner of any race or lawful sport, game or exercise, or to the
owner of any horse engaged in any race.

7. Any person exhibiting or publishing or causing to be
exhibited or published any placard, handbill, card, writing,
sign or advertisement, whereby it shall be made to appear that
any house, office, room or place is opened, kept or used for
the purpose of making bets or wagers in manner aforesaid,
or for the purpose of exhibiting lists for betting, or with
intent to induce any person to resort to such house, office,
room or place for the purpose of making bets or wagers in

(a) Sce note to s. 3 supra.
STATUTES.

manner aforesaid, or any person who, on behalf of the owner
or occupier of any such house, office, room or place, or person
using the same, shall invite other persons to resort thereto for
the purpose of making bets or wagers, in manner aforesaid,
shall upon summary conviction thereof before two justices of
the peace, forfeit and pay a sum not exceeding Thirty pounds,
and may be further adjudged by such justices to pay such
costs attending such conviction as to the said justices shall
seem reasonable ; and on the nonpayment of such penalty and
costs, or in the first instance if to such justices it shall seem
fit, may be committed to the common gaol or house of correc-
tion, with or without hard labour, for any time not exceeding
Two calendar months.

8. If any person convicted under this Act on information
before justices shall be adjudged to pay any penalty, or any
costs and charges attending the conviction, and shall fail to pay
such penalty or costs, the sume may be levied by distress and
sale of the goods and chattels of the offender by warrant under
the hand and seal of one of the convicting justices: Provided
always, that if any person shall be committed to prison for
default of payment of any penalty and costs, then the costs
alone may be levied by distress as aforesaid.

9. One half of every pecuniary penalty which shall be ad-
judged to be paid under this Act shall be paid to the informer,
and the remaining half shall be applied in aid of the poor rate
of the parish in which the offence shall have been committed,
and shall be paid for that purpose to the overseer or other
person authorized to receive poor rates in such parish, or if the
place wherein the offence shall have been committed shall be
extra-parochial, then the justices by whom such penalty shall
be adjudged to be paid shall direct such remaining half thereof
to be applied in aid of the poor rate of such extra-parochial
place, or if there shall not be any poor rate therein, in aid of
the poor rate of any adjoining parish or district.

10. In case any person who shall have laid any complaint or
information in respect of any offence against this Act shall not
appear at the time at which the defendant may have been sum-
moned to appear, or at any time to which the hearing of the
stuumons may have been adjourned, or, in the opinion of any
justices having authority to adjudicate with respect to the
offence charged in such information or complaint as aforesaid,
shall otherwise have neglected to proceed upon or prosecute such
information or complaint with due diligence, it shall be lawful
for such justices to authorize any other person to proceed on
such summons instead of the person to whom the same may
have been granted, or if such justices think fit, to dismiss the
summons already granted, and authorize any person to take out
a fresh summons in respect of the offence charged in such

LL 2

515

Penalties and
costs may be
levied by
distress.

Application
of penalties.

On neglect

to prosecute
any summons,
justices may
authorize
some other
person to
proceed.
516

Justices may
authorize
search of
suspected
houses.

Commissioners
of police may
authorize
superintendent
of police to
enter and
search
suspected
houses.

Appeal to
quarter
sessions.

APPENDIX.

information or complaint, in like manner as if the previous
summons had not been granted.

11. It shall be lawful for any justice of the peace, upon com-
plaint made before him on oath that there is reason to suspect
any house, office, rooin, or place to be kept or used as a betting
house or office, contrary to this Act, to give authority by special
warrant under his hand, when in his discretion he shall think
fit, to any constable or police officer, to enter, with such assist-
ance as may be found necessary, tee such house, office, room,
or place, and, if necessary, to use force for making such entry,
whether by breaking open doors, or otherwise, and to arrest,
search, and bring before a justice of the peace all such persons
found therein, and to seize all lists, cards, or other documents
relating to racing or betting found in such house or premises ;
and any such warrant may be according to the form given in
the first schedule annexed to the beforementioned Act ‘to
amend the law concerning games and wagers.”

12. If any superintendent belonging to the metropolitan
police force shall report in writing to the commissioners of
police of the metropolis that there are good grounds for believ-
ing and that he does believe that any house, office, room, or
place within the metropolitan police district is kept or used as
a betting house or office, contrary to this Act, it shall be lawful
for either of the said commissioners by order in writing to
authorize the superintendent to enter any such house, office,
room, or place, with such constables as shall be directed by the
commissioners to accompany him, and, if necessary to use force
for the purpose of effecting such entry, whether by breaking
open doors or otherwise, and to take into custody all persons
who shall be found therein, and to seize all lists, cards, or other
documents relating to racing or betting found in such house or
premises.

13. Any person who shall be summarily convicted under this
Act may appeal to the next general or quarter session of the
peace (0)... . .; and it shall be lawful for the magistrate or
justices by whom such conviction shall have been made, to bind
over any party who shall have made information against the party
convicted, and any witnesses who shall have been examined, in
sufficient recognizances to attend and be examined at the hear-
ing of such appeal; and every such witness, on producing a
certificate of being so bound under the hand of the said magis-
trate or justices, shall be allowed compensation for his or her
time, trouble, and expenses in attending the appeal, which com-
pensation shall be paid in the first instance by the treasurer of
the county or place in like manner as in cases of misdemeanor

(2) The omitted portion of this been replaced by s. 31 of the Act of
section is repealed by the Summary 1879, as amended by the Act of
Jurisdiction Act, 1884, as having 1884.
STATUTES.

under the provisions of an Act passed in the seventh year of
the reign of King George the Fourth, intituled “An Act for
improving the Administration of Criminal Justice in England ;”
and in case any such appeal shall be dismissed and the order or
conviction affirmed, the reasonable expenses of all such wit-
nesses attending as aforesaid, to be ascertained by the court,
shall be repaid to the said treasurer by the appellant.

14. No information, conviction, or judgment of the justices
in general or quarter sessions shall be removed by certiorari
into the Court of Queen’s Bench (c).

15. [Distress not unlawful for want of form (d)].

16. [Tender of amends, é&e. (e)].

17. [Limitation of actions (/)].

18. In Ireland the term “metropolitan police force,’ and the
terms “ commissioners of the police of the metropolis,” and the
terms “metropolitan police district,” shall mean and include
respectively the Dublin metropolitan police force, the commis-
sioners of polive of Dublin metropolis, and the police district of
Dublin metropolis.

19. This Act shall commence and come into operation on
the first day of December, one thousand eight hundred and
fifty-three.

37 Vior. Cap. 15.

An Act to amend the Act of sixteenth and seventeenth Victoria,
chapter one hundred and nineteen, intetuled “An Act for the
Suppression of Betting Houses.”

Whereas it is expedient to amend the Act of the session of
the sixteenth and seventeenth years of the reign of her present
majesty, chapter one hundred and nineteen, intituled “An Act
for the Suppression of Betting Houses,” and to extend the
provisions of such Act to Scotland :

Be it enacted by the Queen’s most excellent majesty, by and
with the advice and consent of the lords spiritual and temporal,
and commons, in this present parliament assembled, and by the
authority of the same, as follows :

1. This Act shall be construed as one with the Act of the
session of the sixteenth and seventeenth years of the reign of
her present majesty, chapter one hundred and nineteen, inti-

(c) The previous portion of this the Summary Jurisdiction Act, 1884.
section, which provided against any (e) This section and s. 17, infra,
objection in matter of form, was were repealed by the Statute Law
repealed by the Summary Jurisdiction Revision Act, 1894. See Public
Act, 1884. Authorities Protection Act, 1893.

(@) This section was repealed by (f) See note (e), supra.

517

7 & 8 Geo. 4,
t, 20.

Certiorari
taken away.

Interpretation
of terms.

Commence-
ment of Act.

Act to be
construed with
16 & 17 Vict.
wv 1T9.
518

Short title.

Commence-
ment of Act.

Penalty on
persons
advertising as
to betting.

Extension to
Scotland.

APPENDIX.

tuled “An Act for the Suppression of Betting Houses” (in this
Act referred to as the principal Act), and the principal Act and
this Act may be cited together as the Betting Acts, 1853 and
1874, and each of them may be cited separately as the Betting
Act of the year in which it was passed.

2. This Act shall not come into operation until the thirty-
first day of July, one thousand eight hundred and seventy-four.

8. Where any letter, circular, telegram, placard, handbill,
card, or advertisement is sent, exhibited, or published,—

(1) Whereby it is made to appear that any person, either in
the United Kingdom or elsewhere, will on application
give information or advice for the purpose of or with
respect to any such bet or wager, or any such event
or contingency as is mentioned in the principal Act,
or will make on behalf of any other person any such
bet or wager as is mentioned in the principal Act ;
or,

(2) With intent to induce any person to apply to any house,
office, room, or place, or to any person, with the view
of obtaining information or advice for the purpose of
any such bet or wager or with respect to any such
event or contingency as is mentioned in the principal
Act; or,

(3) Inviting any person to make or take any share in or in
connection with any such bet or wager ;

every person sending, exhibiting, or publishing, or causing the
same to be sent, exhibited, or published, shall be subject to the
penalties provided in the seventh section of the principal Act
with respect to offences under that section.

4. The twentieth section of the principal Act is hereby
repealed, and the principal Act as amended by this Act, shall
extend to Scotland, with the following modifications and provi-
sions:

(1) The term “ distress” shall mean poinding and sale :

The term ‘‘misdemeanour” shall mean a crime and
offence :

(2) All offences or penalties under this Act and the princi-
pal Act shall be prosecuted and recovered before the
sheriff of the county or his substitute in the sheriff
court, at the instance of the procurator fiscal, or of
any private person, under the provisions of the
Summary Procedure Act, 1864, and all the jurisdic-
tions, powers, and authorities necessary for the
purposes of this section are hereby conferred on the
sheriffs and their substitutes :

(8) Every pecuniary penalty which is adjudged to be paid
under this or the principal Act, shall be paid to the
clerk of the court, and shall be by him accounted for
STATUTES.

and paid to the Queen’s and lord treasurer’s remem-
brancer on behalf of her majesty :

(4) The thirteenth and fourteenth sections of the principal
Act shall not apply to Scotland, but it shall be com-
petent to any person who is convicted under this Act
or the principal Act to appeal against such conviction
to the high court of justiciary, in the manner pre-
scribed by such of the provisions of the Act of the
twentieth year of the reign of King George the
Second, chapter forty-three, and any Acts amending
the same, as relate to appeals in matters criminal, and
by and under the rules, limitations, convictions, and
restrictions contained in the said provisions,

17 & 18 Vicor. Cav. 38.
An Act for the Suppression of Gaming Houses.

Whereas divers statutes have been made from time to time
for the prevention of unlawful gaming; and particularly by
the Act of the session holden in the eighth and ninth years ot
her majesty, chapter one hundred and nine, powers are given
to justices of the peace in places beyond the metropolitan
police district to authorize constables, and to either of the
commissioners of police within such district to authorize
superintendents belonging to the metropolitan police force,
to enter houses suspected to be kept as common gaming
houses, and to arrest all persons found therein: and it is
thereby enacted, that where any cards, dice, balls, counters,
tables or other instruments of gaming used in playing any
unlawful game shall be found in any house, room or place
suspected to be used as a common gaming house, and entered
under a warrant or order issued under the provisions of that
Act, or about the person of any of those who shall be found
therein, it shall be evidence, until the contrary be made to
appear, that such house, room or place is used as a common
gaming house, and that the persons found in the room or
place where such tables or instruments of gaming shall have
been found were playing therein: and whereas the keepers
of common gaming houses contrive, by fortifying the entrances
to such houses, or by other means, to keep out the officers
authorized to enter the same until the instruments of gaming
have been removed or destroyed, so that no sufficient evidence
can be obtained to convict the offenders, who are thereby
encouraged to persist in the violation of the law; and whereas
it is expedient that the law shall be made more efficient for

oO

8 & 9 Vict.
e. 109,

19
520

Penalty on
persons
obstructing the
entry of
constables
authorized to
enter any
house sus-
pected to be
a common
gaming
house.

Obstructing
entry of
constables

to be

evidence of
house being

a common
gaming house.

APPENDIX.

the suppression of gaming houses ; be it therefore enacted by
the Queen’s most excellent majesty, by and with the advice
and consent of the lords spiritual and temporal, and commons,
in this present parliament assembled, and by the authority of
the same as follows:

1. Any person who shall wilfully prevent any constable or
officer authorized under the provisions of the said Act of the
eighth and ninth years of her majesty to euter any house,
room or place, from entering the same or any part thereof,
or who shall obstruct or delay any such constable or officer
in so entering, and any person who, by any bolt, bar, chain
or other contrivance shall secure any external or internal
door of or means of access to any house, room or place so
authorized to be entered, or shall use any means or contriv-
ance whatsoever for the purpose of preventing, obstructing
or delaying the entry of any constable or officer authorized
as aforesaid into any such house, room or place, or any part
thereof, may for every such offence, on a summary conviction
of the same before two justices of the peace, be adjudged by
such justices to forfeit and pay any penalty not exceeding one
hundred pounds, together with such costs attending the said
conviction as to the said justices shall appear reasonable ; and
on the non-payment of such penalty and costs, or in the first
instance, if to the said justices it shall seem fit, may be com-
mitted to the common gaol or house of correction, with or
without hard labour, for any period not exceeding six calendar
months (¢).

2. Where any constable or officer authorized as aforesaid to
enter any house, room or place is wilfully prevented from or
obstructed or delayed in entering the same or any part thereof,
or where any external or internal door of or means of access to.
any such house, room or place so authorized to be entered shall
be found to be fitted or provided with any bolt, bar, chain, or
any means or contrivance for the purpose of preventing, de-
laying or obstructing the entry into the same or any part
thereof of any constable or officer authorized as aforesaid,
or for giving an alarm in case of such entry, or if any such
house, room or place is found fitted or provided with any
means or contrivance for unlawful gaming, or with any means.
or contrivance for concealing, removing, or destroying any
instruments of gaming, it shall be evidence, until the contrary
be made to appear, that such house, room or place is used as a
common gaming house within the meaning of this Act and of
the former Acts relating to gaming, and that the persons found
therein were unlawfully playing therein.

(g) So much of this section and of penalty and costs, is repealed by the
ss. 8 and 4 as prescribes the term of Summary Jurisdiction Act, 1884.
imprisonment for non-payment of
STATUTES,

38. If any person found in any house, room or place entered
by any constable or officer authorized as aforesaid to enter the
same, upon being arrested by any such constable or officer, or
upon being brought before any justices, on being required by
such constable or officer or by such justices to give his name
and address, shall refuse or neglect to give the same, or shall
give any false name or address, he may, upon summary con-
viction thereof, before the same or any other justices, be
adjudged to pay any penalty not exceeding fifty pounds,
together with such costs as to such justices shall appear
reasonable, and on the nonpayment of such penalty and costs,
or in the first instance, if to such justices it shall seem fit,
may be imprisoned in the common gaol or house of correction
for any period not exceeding one month (A).

4. Any person being the owner or occupier, or having the
use of any house, room or place, who shall open, keep ur use
the same for the purpose of unlawful gaming being carried
on therein, and any person who, being the owner or occupier
of any house or room, shall knowingly and wilfully permit
the same to be opened, kept or used by any other person for
the purpose aforesaid, and any person having the care or
management of or in any manner assisting in conducting the
business of any house, room or place opened, kept or used for
the purpose aforesaid, and any person who shall advance or
furnish money for the purpose of gaming with persons fre-
quenting such house, room or place, may, on summary con-
viction thereof before any two justices of the peace, be adjudged
by such justices to forfeit and pay such penalty not exceeding
five hundred pounds as to such justices shall seem fit, and
may be further adjudged by such justices to pay such costs
attending such conviction as to them shall seem reasonable ;
and on the nonpayment of such penalty and costs, or in the
first instance, if to the said justices it shall seem fit, may be
committed to the common gaol or house of correction, with
or without hard labour, for any time not exceeding twelve
calendar months (2).

5. It shall be lawful for the justices before whom any per-
sons shall be brought who have been found in any house, room
or place entered in pursuance of any authority granted under
the provisions of the said Act of the eighth and ninth years of
her majesty, to require of any such persons to be examined on
oath and give evidence touching any unlawful gaming in such
house, room or place, or touching any act done for the purpose
of preventing, obstructing or delaying the entry into such
house, room or place or any part thereof of any constable or
officer authorized as aforesaid ; and no person so required to be

(h) See note (g), supra. (2) See note (g), supra.

521

Penalty on
persons appre-
hended for
giving false
names or
addresses.

Penalties on
persons keep-
ing gaming
houses.

Justices may
require any
of the persons
apprehended
to be sworn
and give
evidence.
522

Penalty on
refusing to
be sworn.

Persons re-
quired to be
examined as
witnesses,
and making
a full dis-
covery, to be
freed from
all penalties,
&e.

Penalties

and costs
may be levied
by distress.

APPENDIX,

examined as a witness shall be excused from being so examined
when brought before such justices as aforesaid, or from being
so examined at any subsequent time, by or before the same or
any other justices, or by or before any court, on any proceeding,
or the trial of any indictment, information, action or suit in
anywise relating to such unlawful gaming or any such acts as
aforesaid, or from answering any question put to him touching
the matters aforesaid, on the ground that his evidence will tend
to criminate himself; and any such person so required to be
examined as a witness who refuses to make oath accord-
ingly, or to answer any such question as aforesaid, shall be
subject to be dealt with in all respects as any person ap-
pearing as a witness before any justices or court in obedience
to a summons or subpeena, and refusing without lawful cause
or excuse, to be sworn or to give evidence, may by law be dealt
with.

6. Every person so required to be examined as a witness as
aforesaid, who upon such examination shall make true and
faithful discovery to the best of his knowledge of all things as
to which he is so examined, shall receive from the justices or
judge of the court by whom he is examined a certificate in
writing to that effect, and shall be freed from all criminal pro-
secutions and penal actions, and from all penalties, forfeitures
and punishments to which he may have become liable for any-
thing done before that time in respect of the matters touching
which he has been so examined ; but such witness shall not
be indemnified under this Act unless he receive from such
justices or judge a certificate in writing under their hands,
stating that such witness has on his examination made a true
disclosure touching all things as to which he has been
examined ; and if any action, information or indictment be at
any time pending in any court against any person so examined
in respect of any act of gaming touching which he was so
examined, and if any action, information or indictment be at
any time pending in any court against any person so examined
as a witness in manner before mentioned, for any such matter
or thing, such court shall, on the production and proof of such
certificate, stay the proceedings in any such action, informa-
tion or indictment, and may, in its discretion, award to such
person such costs as he may have been put to by such action,
information or indictment.

7. If any person convicted under this Act on information
before justices shall be adjudged to pay any penalty or any
costs and charges attending the conviction, and shall fail to
pay such penalty or costs, the same may be levied by distress
and sale of the goods and chattels of the offender, by warrant
under the hand and seal of one of the convicting justices : pro-
vided always, that if any person shall be committed to prison
STATUTES.

for default of payment of any penalty and costs, then the costs
alone may be levied by distress as aforesaid.

8. One half of any pecuniary penalty which shall be
adjudged to be paid under this Act shall be paid to the person
laying the information upon which the conviction takes place,
and the remaining half shall be applied in aid of the poor rate
of the parish in which the offence shall have been committed,
and shall be paid for that purpose to the overseer or other
person authorized to receive poor rates in such parish, or if the
place wherein the offence shall have been committed shall be
extra-parochial, then the justices by whom such penalty shall
be adjudged to be paid shall direct such remaining half thereof
to be applied in aid of the poor rate of such extra-parochial
place, or if there shall not be any poor rate therein, in aid of
the poor rate of any adjoining poor rate or district.

9. In case any person who shall have laid any information in
respect of any offence against this Act shall not appear at the
time at which the defendant shall have been summoned to
appear, or at any time to which the hearing of the summons
may have been adjourned, or if such person, in the opinion of
any justices having authority to adjudicate with respect to the
offence charged in such information as aforesaid, shall other-
wise have neglected to proceed upon or prosecute such informa-
tion with due diligence, it shall be lawful for such justices to
authorize any other person to proceed on such information and
summons instead of the person to whom the same may have
been granted, or such justices may dismiss the first informa-
tion and summons, and authorize any person to lay a fresh
information in respect to the offence charged in such first
information, in like manner as if the previous summons had
not been granted.

10. Any person who shall be summarily convicted under this
Act may appeal to the next general or quarter session of the
peace. .... (&) ; and it shall be lawful for the magistrate or
justices by whom such conviction shall have been made to bind
over any party who shall have made information against the party
convicted, and any witnesses who shall have beep examined, in
sufficient recognizances, to attend and be examined at the
hearing of such appeal; and every such witness, on producing
a certificate of being so bound, under the hand of the said
magistrate or justices, shall be allowed compensation for his or
her time, trouble and expenses in attending the appeal, which
compensation shall be paid in the first instance by the treasurer
of the county or place, in like manner as in cases of misde-
meanor, under the provisions of an Act passed in the seventh

(k) The omitted portion of this been replaced by s. 32 of the Act of
section is repealed by the Summary 1879, as amended by the Act of
Jurisdiction Act, 1884, as having 1884.

523

Applications
of penalties.

On neglect

to prosecute
any summons,
justices may
authorize
some other
person to
proceed.

Appeal to
quarter
sessions.
524

7 & 8 Geo. 4,
ce. 28.

Certiorari
taken away.

Commence-
ment of Act.

Definitions.

Horse-races
unlawful
within ten
miles of
London unless
licensed.

APPENDIX.

year of the reign of King George the Fourth, intituled “An
Act for improving the administration of Criminal Justice in
England,” and in case any such appeal shall be dismissed, and
the order or conviction affirmed, the reasonable expenses of
all such witnesses attending as aforesaid, to be ascertained
by the court, shall be repaid to the said treasurer by the
appellant.

11. No information, conviction or judgment of the justices in
general or quarter sessions shall be removed by certiorari into
the Court of Queen’s Bench (2).

12. [Distress not unlawful for want of form (m).]

13. [Tender of amends (7). }
14. Hiamteston of actions (0). ]

15. This Act shall commence and come into operation on
the first day of August, one thousand eight hundred and fifty-
four.

42 & 43 Vuior. Cap. 18.
An Act for the Licensing of Metropolitan Suburban Racecourses.

Whereas the frequency of horse-races in the immediate
vicinity of the metropolis is productive of much mischief and
inconvenience, and the holding of such races in thickly popu-
lated places near the metropolis is calculated to cause, and
does in fact cause, annoyance and injury to persons resident
near to the places where such races are held:

Be it therefore enacted by the Queen’s most excellent
majesty, by and with the advice and consent of the lords
spiritual and temporal, and commons, in this present parlia-
ment assembled, and by the authority of the same, as follows ;
(that is to say, )

1. A horse-race within the meaning of this Act shall mean
any race in which any horse, mare or gelding shall run or be
made to run in competition with any other horse, mare or
gelding, or against time, for any prize of what nature or kind
soever, or for any bet or wager made or to be made in respect of
any such horse, mare or gelding, or the riders thereof, and at
which more than twenty persons shall be present.

2. From and after the twenty-fifth day of March, one thou-
sand eight hundred and eighty, it shall not be lawful that
any horse-race be held or take place on any pretext whatso-

(2) The previous portion of this (n) This section and s. 14 are
section is repealed by the Summary repealed by the Statute Law Revision
Jurisdiction Act, 1884. Act, 1894. See Public Authorities

(m) Repealed by the Summary Protection Act, 1893.
Jurisdiction Act, 1884. (c) See note (), supra.
STATUTES.

ever within a radius of ten miles from Charing Cross, in the
City of Westminster, unless in a place for which a licence for
horse-racing has been obtained pursuant to the provisions
hereinafter contained.

3. Any person desirous of obtaining a licence for horse-
racing for any open or enclosed land or place, being the
owner, lessee or occupier of such land or place, may apply to
the justices assembled at any Michaelmas quarter sessions of
the peace to be holden for the county, city, riding, liberty or
division-in which such land or place ig situate, which justices
are hereby empowered to grant or withhold a licence at their
discretion, such licence to be of force and valid for twelve
months dating from the twenty-fifth day of March next fol-
lowing the date of such application.

4, Every such application shall be made to the justices in
the same manner as applications for licences for places to be
kept for public dancing, music, or other entertainment under
the provisions of an Act passed in the twenty-fifth year of his
late Majesty King George the Second.

5. Any person who after the said twenty-fifth day of March,
one thousand eight hundred and eighty, shall take part in
any horse-race in any open or enclosed land or place for
which a licence is required under this Act, and for which a
licence has not been obtained, shall upon summary conviction
be liable to a penalty of ten pounds, or an imprisonment not
exceeding two months.

6. Any person who shall be the owner or lessee or in pos-
session or occupation of any open or enclosed land or place
for which a licence for horse-racing is required under this Act,
and upon which any horse-race shall be held after the said
twenty-fifth day of March, one thousand eight hundred and
eighty, without such licence having been obtained, shall be
guilty of a misdemeanor, and on conviction thereof shall be
punishable for every such offence with fine or imprisonment
at the discretion of the court, such fine not to be less than five
pounds nor more than twenty-five pounds, and such imprison-
ment not to be less than one month nor more than three
months.

7. Every horse-race held or taking place in contravention
of the provisions of this Act shall be deemed to be a nuisance,
and any person injured or inconvenienced thereby shall have
all such rights and remedies against all persons taking part in
the same, and against owners, lessees, and occupiers of the
land or place, as he would have in case of a nuisance at
common law.

8. This Act may be cited as the Racecourses Licensing Act,
1879.

525

Power to
justices to
license at
Michaelmas
quarter
sessions,

Mode of
making
application
for licence.

Penalty on
persons
taking part in
unlicensed
horse-races.

Penalty on
owners and
occupiers of
ground where
unlicensed
horse-races
take place.

Unlicensed
horse-races to
be deemed a
nuisance, and
liable accord-

ingly.

Short title.
INDEX.

-——~o——

ACCEPTANCE AND RECEIPT,
in what they consist, 6
must be of the goods “so sold,” ¢d.
general rule, id.
acceptance before delivery, 7, 9
when vendor may disaffirm sale, 7
where an article is selected, id.
question for the jury, 8
constructive possession by vendee, id.
must divest veidor of his lien, id.
seller may become agent for buyer, id.
question for jury in such case, 2d.
what amounts to an acceptance and receipt, 9
buyer directing expense to be incurred, id.
what has been held insufficient, 10
various acts of ownership, 11
a ready-money transaction, id.
criterion for determining whether goods are accepted or
not, 12
conduct of buyer, id.
where buyer offers to resell, id.
where goods are agreed to be resold, id.

ACCIDENT,
unsoundness caused by it, 65
to hired horse or carriage, 237
to horse in railway yard, 269
horse running away, 300, 303
running over a person in the dark, 301
from the sudden fright of a horse, id. ;
accident itself sometimes primd facie proof of negligence,
305

ACCIDENTAL DEATH. See Necuieent Drivine.

ACCOUNT STATED,
proof of, 176

ACE OF HEARTS,
an illegal game, 426
penalty for setting up, 428, 474
528 INDEX.

ACUTE DISEASES, 65
ADDRESS,

giving one after an accident, 322
giving false address or name in gaming house, 477

ADVERTISING,
effect of, by auctioneer, 43
lotteries, 430
betting houses, 468, 469
inciting infants to bet, 471

AFFIRMATION,
when it amounts to a warranty, 134

AGENT,
signature by, under Sale of Goods Act, 21
who may be an agent, 22
how constituted, id.
need not be authorized in writing, id.
auctioneer, agent of both parties, 22, 38
except when he sues as a contracting party, id.
auctioneer’s clerk, agent at an auction, id.
writing off debt due from agent by agent, 29
agent not declaring himself to be so, 44
money coming to agent by fraud of principal, 47
cannot delegate his authority, 118
nor exceed it, id.
agency determines by principal’s death, id.
difference between remunerated and unremunerated agent,
id.
acting without proper authority, id.
his personal responsibility, id.
where he cannot be sued on the contract, 119
but is liable in damages, id.
principal answerable for his fraud, id.
misrepresentation by, collateral to contract, id.
damage caused by his negligence, id.
undisclosed principal, 120
person described as agent may be proved to be principal,
121
principal cannot be proved to be agent, id.
their respective rights of action on a contract, id.
warranty by servant as special agent, id.
does authority to sell imply authority to warrant, 122
warranty by special agent at a fair, id.
warranty by a servant as general agent, 123
servant of horse-dealer has implied authority to warrant,
ad.
illustration of rule, id.
evidence of usage not to warrant inadmissible, 124
warranty by servant on incidental matter not binding on
horsedealer, id.
warranty by a servant after sale, 125
INDEX. 529

AGENT—continued.
warranty by a servant forbid to give one, 125
warranty by a stranger forbid to give one, 126
master unwilling to stand by his servant’s warranty, id.
rule as'to servant binding his master, id.
warranty by a person entrusted to deliver, 127
agent employed to take a warranty, id.
action against a pretended agent, id.
effect of signature of consignment note by, 258
betting agent, 417, 418. See Brrrinc Hovuszs, Commis-

SION AGENT, WAGERS.

AGISTER,

his possession, 224

does not insure a horse’s safety, 7d.

he is answerable for negligence, id.
if he leaves his gates open, id.
fences out of order, &c., 225
injury by another horse, id.
doctrine of scienter does not apply, id.

the horse’s condition, 226

eatage let for a certain time, id.

agister has no lien, 227

may have a lien by agreement, 228

bankruptcy of agister, id.

horses and cattle being agisted are distrainable, id.
but not when taken in to rest for a night, id.
decision of the Irish Court of Queen’s Bench, 228,

229
distinction where cattle enter by breaking fences,
229

limitation of distress under Agricultural Holdings Act, id.
taking in live stock to be fed at a fair price, id.
terms “milk for meat,” 230
“exclusive right to feed” for limited period, id.
remedy for wrongful distress, id.

AGREEMENT. See Nore or MEmMornanDuUM.
unstamped, admissible to prove fraud, 155

AGREEMENT STAMP, ;
written warranty does not require, 180

AGRICULTURAL HOLDINGS ACT. See AcisTER.

ALDRIDGE’S,
proprietor of, a horse-dealer, 33

ALTERNATIVE RATES, 266. See Carryine Hoxsss.

ANTICOR, 71

APPRENTICE,
gaming, 421

ARBITRATION,
of the Jockey Club, 204

Cc. M M
530 INDEX.

ARROWS,
penalty for lacking, repealed, 3( ~

ART UNIONS,
Acts to legalize, 368
may obtain charters, 431

AUCTIONS AND REPOSITORIES,
an auctioneer, 34
extent of authority, id.
not to warrant, 35
to sell for true owner, id.
hable to an action for negligence, id.
or for conversion, id.
selling horses comprised in bill of sale, 36
horse sent to a repository, id.
auctioneer’s possession, 37
an auctioneer can set up jus tertii, id.
interpleader by auctioneer, id.
goods privileged from distress, 38
his right to remain on the premises, id.
auctioneer or clerk agent of both parties, id.
purchaser’s name signed to a catalogue, 15, 89
printed particulars of sale, 39
an incorrect catalogue, id.
a limited warranty, id.
where it applies only to soundness, 40
trial of a horse warranted quiet in harness, 41
notice of the conditions of sale, id.
notice of particulars, 42
goods put up in lots, id.
where a bidder may retract, id.
sale “ without reserve,” id.
effect of advertisement, 43
warranty of ownership, id.
auctioneer not disclosing his principal, 44
liability for non-delivery, id.
puffing, id.
sale not notified to be subject to right to bid on behalf of
seller, 44, 45
right to bid expressly reserved, 45
effect of previous private warranty, 7d.
agreement not to bid against each other, id.
mock auctions, id.
purchaser may transfer his bargain, 7d.
where party refuses to take goods, id.
goods resold without communicating with purchaser, ii/.
auctioneer proper party to receive the price, 46
has no authority to receive a bill of exchange, id.
he is stakeholder for both parties, id.
effect of this attribute, id.
as to interest, 47
auctioneer’s lien, id.
when the price vests in the vendor, id.
price obtained by principal’s fraud, id.
auctioneer’s commission, 48
INDEX, 531

AUCTIONS AND REPOSITORIES—continued.
entitled to commission though no sale by auction, 48
misrepresentation made by seller before sale by auction,
135, 148 ,
by bidder at an auction, 148

BACK-GAMMON,
a lawful game, 425

BACK SINEWS. See Sprint and THICKENING oF THE Back
SINEws.

BACKING AND GIBBING, 66
BAGATELLE. See Briurarps.

BAILEE,
vendor may become, 7
setting up title of bailor, evidence of conversion, 59
innkeeper may become, 204
fraudulent appropriation by, larceny, 237
a gratuitous bailee, 245
negligence of a bailee, 246
of a gratuitous bailee, id.

BALLOT IN BUILDING SOCIETIES, 434
And see LotrTerigs.

BALLS,
evidence of a gaming-house, 476
may be taken, 477
may be destroyed, id.

BANKER,
at a gaming-house, 474, 476
BARGAIN,
implied in contract of sale, 1
striking a bargain, 4
bargain when struck, id.
where neither party can be off, id.
striking off a bargain, 13
bound by an earnest, id.
a foolish bargain, 191
loss of a good bargain, 197

BARGAIN AND SALE,
included in “sale,” 2
proof of, 178

BASSET,
an illegal game, 426
penalty for setting up, 428, 474

BEAR, —
liability of owner of, for injury caused by, 329

BEHN v. BURNESS, judgment of Williams, J., in, as to dis-

tinction between warranty and representation, 139, 140
MM 2
532 INDEX.

BETTING. See Wacezrs.

BETTING AGENT,
rights and liabilities of, 417, 418. See Conaussion AcEnv,
WAGERS.

BETTING HOUSES,
a common betting house, 449
Act for the suppression of betting-houses, id.
course of business in, previous to Act, id.
class of betting sought to be suppressed, 450
preamble of Act, id.
no house, &c. to be kept for purpose of owner, &c.,
betting with other persons, id.
betting houses to be gaming houses, id.
penalty on owner or keeper of betting house, 451
defendant may elect to be tried by a jury instead of being
dealt with summarily, 451, n. (f)
section 1 creates two distinct offences, 451
keeping, &c. a place for purpose of betting with
persons resorting thereto, 451, 452
keeping, &c. a place for purpose of receiving deposits
on bets, 451, 452
application of Act to licensed person, 442, 452
what is a “place,” 452
Doggett 1. Catterns, 452, 453
judgment in, considered by Hawkins, J., 458, 454
temporary structure adjoining race-course, 454
umbrella on race-courses, 455
moveable box within ring, 455, 456
defined spot in open space, 456
inclosed area, 457, 458
permitting user of, id.
decision in Scotland, 459
a “place” must be fixed and ascertained, id.
but need not be a particular spot, 460
“place” inseparable from user, id.
what is unlawful user, id.
what constitutes user, 461
mode of using, id.
persons liable under the Act, 462
user by occupier, 462, 463
need not be habitual, 458, 462
instances of user by, 462, 463
person using, 463
need not be occupier, zd.
nor have permission to use from either owner or
occupier, id.
illegal user upon one occasion only, sufficient, 4164
immaterial that principal user is for a legitimate
purpose, id.
bookmakers, id.
persons making casual bets, 465
members of a bond fide club, id.
person having the management, td.
business must be that of betting-house keeper, id.
INDEX. 5338

BETTING HOUSES—continued.

erson assisting betting-house keeper b ivi
E bets, 466 : E ore
manager of legal part of business only, id.
persons resorting thereto, id.
when evidence of physical resorting is necessary, id.
evidence of actual resorting, 467
penalty for receiving money, &c. on certain conditions, id.
money, &c. so received may be recovered from the holder,

vd.

Act does not extend to stakes in a race, &c., 468

penalty for advertising, &c., id.

pe of Betting Act, 1874, as to advertising,
scope of this enactment, 469

power to search suspected houses, id.

power of commissioners of police, 470

the levy and application of penalties, id.

where party neglects to prosecute, id.

no appeal from High Court, id.

extension to Scotland, id.

BETTING AND LOANS (INFANTS) ACT,
penalty on inciting infants to bet, 471
presumption of knowledge of infancy, 472
person charged a competent witness, id.

BETTING PARTNER,
has right of action for share of profits, 416
entitled to an account of winnings, 417

BICYCLE,
a carriage within Highway Acts, 306

BILL OF EXCHANGE. See Promissory Nors.
dishonoured, effect of, when goods are in transitu, 29
payment for goods, id.
agent receiving one, 46
breach of warranty no defence to action on, 184
unless there be a total failure of consideration, id.
given for a gaming consideration, 406, 414, 444
in payment of a bet, 414
as security, id., 444
where a note or bill is « gift, 414
when avoided, 444
bill not void in the hands of a bond fide holder, 445
effect of such payment, 445, 446 / ; :
bill accepted with notice of illegal consideration, 447

BILLIARDS,
a lawful game, 425
a licence required, 480
also for bagatelle, id.
by whom licensed, id.
fees payable, id. :
the words “Licensed for Billiards,” 1d. |
non-compliance with these regulations, id.

468,
534 INDEX.

BILLIARDS—continued.
what amount of fine, 480
enforced by distress, id.
offences against the tenor of the licence, id.
first, second, or third offence, id.
when billiard playing is not allowed, id.
constables may visit licensed houses, 481
application of Licensing Act, 1872, id.

BITING, 67

BLACKSMITH. See Farrier.

BLINDNESS,
cataract, 67, 71
remittent inflammation, 67
opacity of the lens held to be an unsoundness, 67, 68

BLOOD AND BOG-SPAVIN, 68
BOAT RACE, 391, 392, 425
BOND, given in payment for a bet, 414, 445

BONE SPAVIN,
held to be an unsoundness, 68, 69

BORROWING HORSES,
remedy against borrower for detaining, 168
lending for use, 244
duties of borrower and lender, id.
lender of a horse, id.
must not conceal defects, id.
what care is required, id.
as much as the borrower is capable of bestowing, id.
showing a horse for sale, 245
a gratuitous bailee, zd.
negligence of a bailee, 246
rule as to negligence of gratuitous bailee, id.
use strictly personal, id.
cannot be used by a servant, id.
must be used according to the lending, 247
or else the borrower is answerable, id.
where no time is fixed for return, id.
redelivery on request, id.
borrower bound to feed the horse, id.
where the horse is exhausted, id.
where the horse is killed, 248
where the horse dies from disease, id.
where borrower is answerable for damage, id.
bailment ended by misuser, id.

BOWLS, 425
INDEX. 535

BOWS,
penalty for lacking, repealed, 367

BREACH OF WARRANTY,
requisites to action on, 146
sa neither bound to tender the horse nor give notice,
seller not bound to take back the horse, td.
unless the contract was executory, id.
Street v. Blay, id.
judgment of the Court of King’s Bench, 158
Lord Eldon’s opinion discussed, id.
evidence in mitigation of damages, 159
unfitness for a particular purpose, 160
an intermediate profit, id.
acts of ownership inconsistent with trial, id.
confirmed by a later case, 161
remedy for breach of warranty, id.
goods are returnable where there is fraud, 162
agreement that a horse is to be returned if unsound, id.
or unsuitable, 163
or unfit for a particular purpose, 164
verbal offer after sale to take back the horse, id.
return should be within a reasonable time, id.
or the contract becomes complete, id.
where buyer should tender the horse, id.
sale after tender, id.
notice instead of tender, 165
length of time before notice, id.
seller should have the horse examined, id.
sale by order of Court, id.
pleading in action on, 171
statement of claim, how framed for, 173
when any one substantive part is untrue, id.
when condition is annexed to the warranty, id.
payment in action on, id.
proof of breach of warranty, 181
plea of, in reduction of damages, 185
defence to action on, id.
and see WaRRANTY.

BREAKING HORSES,
in a public place, 337

BRIGHT EYE, 129
BROKEN-BACKED, 69
BROKEN-DOWN, 70
BROKEN-KNEES, 70
BROKEN-WIND, 70
BRONCHITIS, 70
536 INDEX.

BULL,
where a mad bull wounds a person, 337
where a bull singled out a person wearing red, id.
injury occasioned by a vicious bull, 339
bull-baiting, 437

BUTTS,
penalty for not making or continuing, repealed, 367

BUYING, SELLING AND EXCHANGING,
bargain, 1
sale and exchange, id.
sale and agreement to sell, id.
bargain and sale, 2
executed and executory contract, id.
entire contract, id.
severable contract, id.
verbal contract, id.
written contract, id.
right of rescission, id.
right of trial, 3
buying a horse under 101., id.
where neither party can be off, 4
striking a bargain, id.
contract not to be performed within a year, id.
Statute of Frauds, s. 4, id.
buying a horse at 10]. or upwards, 5
Sale of Goods Act, 1893, 8. 4, id.
contract within the section, id.
requisites of a sale under s. 4, 6

CAB,

liability of proprietor to public, 314
for loss of luggage, id.
or personal injury, id.
or damage to horse or carriage of another, id.
relationship between proprietor and driver, wl.
limited to acts of driver within scope of employment,

315
liability of proprietor to driver, 323

CANKER, 70
CAPPED HOCKS, 71

CARDS,
lawful play, 421, 425
unlawful games, 426
used as instruments of gaming, 438
evidence of a gaming house, id.
may be taken, 476
may be destroyed, 477

CARRYING HORSES,
a common carrier, 249
railway companies common carriers, id.
INDEX. 5387

CARRYING HORSES—continued.
duty of common carriers, 249
bound to carry within reasonable time, id.
and to deliver safely, id.
exceptions, 250
meaning of “act of God,” id.
rule as to inherent vice, id.
Blower v. Great Western Railway Company, id.
proof of, 251, 252
where each party gives evidence, 252
upon what burthen of proof depends, id.
rule applies to common carriers by sea, 253
proof in action for negligence, id.
when carrier may refuse to carry animals, id.
onus of proof of non-liability, 254
must carry for reasonable charges, id.
defects in carriages, id.
a special contract to carry, id.
binding at common law, id.
hardship thus occasioned, 255
remedy 17 & 18 Vict. c. 31, id.
provisions of section 7, id.
company to be liable notwithstanding notices, id.
conditions must be reasonable, id.
limitation of liability, id.
special contract must be signed, 256
application of section 7, 7d.
construction of section 7, id.
Peek v. North Staffordshire Railway Company, id.
general notices invalid, 257
condition limiting liability, id.
“condition” and “special contract” synonymous terms,
258
special contract binding on company without signature, id.
effect of signature by agent, id.
as to reasonableness Court to decide, 259
general effect of these decisions, id.
what conditions just and reasonable, and what not, id.
““to be free from all risks ”—cattle suffocated, 259, 260
“to be free from all risks of conveyance ”—unsound truck,
260
owner’s risk at lower rate, 261
condition as to time within which loss should be declared,

ad.

as to loss of market coupled with “injury” to cattle, 261,
262

condition as to value coupled with unreasonable rate, 263,
264

where value untruly declared, 264

condition as to general non-liability, 265

as to non-liability beyond their own limits, 266

if part of special contract is reasonable, such part may

be relied on, id.

alternative rates, 266, 267

what is wilful misconduct, 267 . ;
plaintiff must prove more than culpable negligence, zd.
538 INDEX.

CARRYING HORSES—continued.
onus of proof that condition is reasonable, 268
general effect of the decisions as to conditions, id.
delivery by carrier, id.
notice of consignee’s refusal to consignor, 268, 269
effect of consignee’s refusal, 269
compensation paid in error to consignor no answer to action
by consignee, id.
liability of company when accident happens to horse
within yard, 269
opinion of Cockburn, C.J., 270
of Mellor, J., id.
of Blackburn, J., id.
declaration of value under 17 & 18 Vict. c. 31, 8. 7, td.
non-compliance with a rule as to receipt, 270, 271
through carriage on railways, 271
what company liable, id.
contract by one company for entire journey, 1d.
contract by one company as agent for another, 272
one company adopting defective vehicle from another, 272,
273

through carriage, partly by railway and partly by sea, 273
Regulation of Railways Act, 1868, id.

company to furnish particulars of charges, id.
Regulation of Railways Act, 1871, 274
carriage in vessel not belonging to company, 1d.
steamboat and railway companies to disinfect carriages,

boats, &c., 275

Diseases of Animals Act, 1894, id.

Animals (Transit and General) Order, 1895, id.
“reasonable time,” id.
a ferryman, 276
damages, 277
injury must not be too remote, id.
failing to provide horse-boxes, id.

CATALOGUE,
at a sale, 15
purchaser’s name signed, 15, 39
conditions separated, id.
terms of, must not be varied from, 39
incorrect, may be explained, id.
description in, amounting to a warranty, 188

CATARACT, 67, 71
CATARRH, 73

CATTLEGATE OWNERS, rights of, 344

CAVEAT EMPTOR. See Warranty.
rule in buying and exchanging, 103, 128, 131, 132, 146, 150
when it does not apply, 132
possession of the means of knowledge, 148
INDEX.

CERTIORARI,
taken away in 16 & 17 Vict. c. 119, 470
in 25 Geo. 2, c. 36, 478, n.
in 17 & 18 Vict. c. 38, 479

CHEATING,
where several persons combine to cheat, 141
conspiracy to cheat indictable, id.
must be evidence of concert, id.
what evidence held insufficient, id.
where only one person cheats an action lies, 142
in a wager, 419
by using false dice, 422
in a game or at play, 423
deemed a false pretence, id.
the fraud or unlawful device, id.
conspiracy to cheat at play, id.
where a criminal information was refused, 424

CHESS,
lawful game, 425

CHEST-FOUNDER, 71

CHILD,
injury to, by negligence, 290
contributory negligence of, id.
injury to, whilst trespassing, 290, 291
identification of, with person in charge of, 299
effect of such identification, id.

CHINKED IN THE CHINE, 71
CHRONIC OPACITY OF THE LENS, 68

CLERK OF THE COURSE,
usually the stakeholder, 374
cannot waive any condition of a race, 392

CLICKING, 72
CLOUDINESS, 72

CLUB,
Jockey Club, 394
rules of, id.
arbitration of, id.
betting at, 465
when a gaming house, 475

COACHMAN,

539

See Hirinc Horses and Neauieent Drivine BY SERVANT.
540 INDEX.

COCKFIGHTING,
illegal, 437
keeping a place for, id.
penalty for, 438
within the Metropolitan District, id.

COIN,
tossing with, a sport, 423
using as instrument of gaming, 438, 439
betting odds and paying, 437

COMMISSION,
auctioneer’s, 48. See Auctions, Limy, Saez.

COMMISSION AGENT,
rights and liabilities of, 417, 418. See WaceErs.
business of, not illegal when bond fide, 463
person holding himself out as, receiving money on deposit,
id.

COMMITTEE OF A RACE. See Srrwarps.

COMMON,
training horses on, 372

CONDITION,
implied, as to right to sell, 104
implied, as to quality or fitness, 106
when to be treated as a warranty, 108, 109
annexed to a warranty, 111, 173
where performance of, unpossible, 112

CONDITIONS OF SALE,
catalogue must refer to them, 39
separation from catalogue, id.
printed particulars, id.
warranty limited as to time may be one of them, 39, 111
notice of conditions, 41

CONSPIRACY TO CHEAT. See Cunatine, FRAUDULENT
REPRESENTATION.

CONSTABLE,
entry by, of premises kept for cock-fighting, &c. in
metropolis, 438
power of, to apprehend persons betting in streets, 440
may be authorized to enter a betting house, 469, 470
duty of, on receipt of notice of intention to prosecute
gaming house keeper, 473
recognizance by, to prosecute, 2d.
payment to, of expenses of prosecution, id.
penalty on, for neglect of duty, id.
may be authorized to enter gaming house, 475, 476
and take into custody all persons there found, 476
persons obstructing, punishable, 477
may visit licensed billiard rooms, 481
INDEX. 541

CONTRACT,

executed, 1

executory, id.

of sale, id.

entire, and price indivisible, 2

entire, and warranty several, 114

severable, 2

verbal, id.

written, id.

right of rescission of, id.

not to be performed within a year, 4

within s. 4 of Sale of Goods Act, 5

time not the essence of, 25

reduced to writing, 113

to carry. See Carryrnc Horsts.

a foolish bargain, 147, 191

affected by a delusion, 149

an impossible contract, 191

action against livery stable keeper for not taking due care
of horse, founded on, 224

injury by hirer of horse founded on contract, 233

for racing, 373, 376

money staked on illegal contract, 379

what is a wagering contract, 400

rescission of, by tossing, 402

offer by advertisement, when a contract, 403

gaming contract for shares, 407

contracts for gaming, 424

CONTRACTION, 72
when held to be an unsoundness, id.

CONTRACTOR,
hability of, for negligence, 296, 297

CONTRIBUTORY NEGLIGENCE. And see Necuicent
Draivine,
no defence to a criminal charge, 281

CONVERSION,
auctioneer liable to action for, 35
setting up title of bailor, evidence of, 59
damages for wrongful, 189

CONVEXITY,
of eye not a patent defect, 129

CORNS, 73

COUGH, 73
held to be an unsoundness, though temporary, 74, 75

COUNTERS,

evidence of a gaming house, 476
542 INDEX.

COURSING MATCH, 366
for a particular meeting, 395
a lawful game, 425

COWHOCKED, 7
CRACKED HEELS, 81
CRIB-BITING, 75, 130

when not an unsoundness, 75
held to be a vice, 76

CRICKET MATCH, 366
recovery of stakes, 382
a lawful game, 425

CROSSING,
railway, 286
street, 310

CROUPIER,
at a gaming house, 476

CRYSTALLINE LENS. See BuinpNEss.
CURB, 77, 182
CURBY HOCKS,

not an unsoundness, 77
CURLING, 366, 425

CUSTOM,
to race, 371
to resort to races, 372
to race, not an easement, id.
to train horses on a common, id.

CUTTING,
held not to be an unsoundness, 78

DAMAGES,
general damages, 187
special damages, id. :
legal and natural consequences of breach of contract, id.
judge to direct jury as to rules of, 188
damages arising from special circumstances, id.
for wrongful conversion, 189
in tort, id.
in actions for a sum certain, 190
interest, id.
effect of 3 & 4 Will. 4, c. 42, s. 28, id.
Sale of Goods Act, 1893, s. 54, 191
INDEX, 543

DAMAGES—continued.
in actions which sound in damages, 191
a foolish bargain, id.
an impossible contract, id.
in goods bargained and sold, 191, 192
in an action for not accepting, 192
in an action for not delivering, id.
nominal, id.
in goods sold and delivered, 193
in money had and received, id.
on breach of warranty, id.
general rule, id.
where the horse has been returned, id.
where the horse has not been returned, id.
where the horse has been tendered, 194
expense of keep, id.
seller liable for reasonable keep, 195
what is reasonable, id.
keeping the horse till a fair, id.
expense consequent on the warranty, 196
expense in selling, id.
expense in advancing the horse’s value, 197
horse tendered and then sold by auction, id.
expense of veterinary certificate and counsel’s opinion, id-
travelling expenses, id.
loss of a good bargain, id.
re-selling with a warranty, 198
damages for misrepresentation, 198
for loss of or injury to horse, by carrier, 277
injury must not be too remote, id.
for failing to provide horse-boxes, 7d.
from negligent driving, 326
not given where injury too remote, 1d.
injury done to a carriage, id.
measure of, when horse has been injured, id.
where the party is killed, 327
deodands abolished, 324
Lord Campbell’s Act, 324, 827
how limited under, 328
cannot be given for funeral expenses, id.
not given to a class, but to individuals, id. :
so individuals may recover, when class do not suffer, id.

DEALING-TALK, 147

DEATH,
of principal, 118

DEFECTS,
latent, 107. See Latent Derects.
buyer protected against, by warranty, 108
concealment of, 151
patent, 128. See Parent Derxcts.
suspected, 132 .
visible, 147
lender of horse must not conceal, 244
544 INDEX,

DEFENCE. See Przapine anp Evimence ror THE DEFEN-
DANT,

DELIVERY AND PAYMENT,
delivery implied in receipt, 6
actual or constructive, 6, 8, 9
rights of property and possession, 23
executed and executory contracts, id.
property may pass without delivery, id.
condition as to price ascertainable, 24
effect where not ascertainable, id.
risk after sale, id.
goods to be delivered on a future day, 25
delivery and payment contemporaneous acts, id.
time not the essence of a contract, id.
when nothing is said about the time of delivery, id.
relative position of the parties, 26
seller’s lien for the price, id.
lien in case of an exchange, id.
conditional possession, ic.
buyer’s right of possession where goods sold on credit, id.
how it may be defeated, id.
seller’s lien during possession, 27
his right of stoppage in transitu, id.
when goods are held to be in trunsitu, id.
effect of stoppage in transitu, id.
goods to be delivered before payment, id.
when time of delivery is not fixed to a day, 28
goods to be paid for before delivery, id.
renunciation of contract, 7d.
price directed to be sent by post, id.
post-oftice order, id.
dishonoured bill, 29
writing off debt due from agent by agent, id.
banker’s cheque, id.
bill of exchange, id.
debt paid to a third party, id.

DELUSION,
affecting the contract, 149

DEODANDS,
abolished, 324

DEPOSIT,
with a stakeholder recoverable before the event, 399, 124
And see STAKEHOLDERS.
of securities, with broker as cover, 413
betting house-keeper receiving deposits on bets, 467

DERBY SWEEPS,
unlawful, 431

DESCRIPTION,
sale by, 105. See Warranty.
INDEX. 545

DETINUE,
by whom maintainable, 168
defence in action of, 183

DICE,
games with, unlawful, except backgammon, 426
evidence of a gaming-house, 476
using false dice, 422

DISEASES,
congenital, or otherwise, 63
alterations in structure, id.
temporary, 65
acute, id.
hereditary, 82

DISEASES OF ANIMALS ACT, 1894,
application of provisions of, to horses, 81
glanders and farcy “ diseases,” under, id.
unlawful to expose diseased horse for sale under, id.
disinfecting vessels, vehicles, &c. under, 275
provisions of, as to making orders as to the muzzling, &c.
of dogs, 335

DISTRESS,
auctioneer selling goods taken by illegal distress, 37
goods sent to auctioneer to be sold privileged from, 38
horse bringing goods to market exempt, 52
guest’s horse at an inn exempt, 206
horse at a farrier’s exempt, 217
horse at livery not exempt, 221
nor horses during agistment, 228
except when taken in to rest for a night, id.
distinction as to, where cattle enter by breaking fences, id.
limitation of, under Agricultural Holdings Act, 229
horse with a rider cannot be distrained damage feasant,
347

DOG,

where a dog bites a person, 331, 332

necessity of ownership, 332

report that dog had been bitten by mad dog, id.

where it has bitten a child, id.

not necessary to show that dog had bitten another man, id.

evidence of scienter, id.

complaint to wife may be evidence against husband, id.

but complaint to husband will not render wife liable after
his death, 333

when knowledge of servant is knowledge of master, id.

no difference between corporation and individual, id.

quere whether promise to make compensation is evidence
against owner, id. :

damage done by dog to game, ground of action, id.

where a dog worries sheep, 331, 334

evidence of mischievous propensity, unnecessary under 28
& 29 Vict. c. 60, 334

on N N
546 INDES.

DOG—continued.
in case of injury to cattle or sheep, 334
“cattle ” includes horses, id.
proof of ownership, id.
The Dogs Act, 1871, id.
dangerous dogs straying, id.
court of summary jurisdiction may order confinement
or destruction of, 335
and impose fine for non-compliance with order, id.
general restrictions on dogs being at large, id.
The Diseases of Animals Act, 1894, id.
power of Board of Agriculture to make orders as to
muzzling, &., id.
liability for trespass by dog, 336, 347
negligence without proof of scienter, 337
trespasser cannot maintain action for injury by, 338
effect of negligence on part of person bitten by, id.
shooting a dog for worrying sheep, 339
for worrying fowls, id.
for chasing deer, id.
in self protection, id.
dog-fighting, 437

DOMINOES,
a lawful game, 425, 441

DRAUGHTS,
a lawful game, 425

DRIVING. See Necricent Drivine.

DROPSY,
of the skin, 78
of the heart, 79
DRUGGING,
horses, 56
DRUNKENNESS,

of contracting party, 156

DUTY ON RACE-HORSES,
abolished, 367

EARNEST AND PART PAYMENT,
a requisite under s. 4 of Sale of Goods Act, 5
two kinds of earnest, 12
symbolical, 13
pecuniary, id.
should be retained by vendor, id.
the old rule, id.
effect of earnest under s. 4 of Sale of Goods Act, id.
effect of part payment, 14

EARTH,
wager as to rotundity of, 403
INDEX. 547

ELECTION,
wager on result, 398

ENLARGED GLANDS, 79
ENLARGED HOCK, 79

ENTIRE CONTRACT,
what is, 2

ENTRY,
for a race, 873
ane es kept for cock-fighting, &c., in metropolis,
into a betting-house, 469
into a gaming-house, 475, 476
into a public billiard-room, 481

EVIDENCE. See Preapina anp EvivEnce.
EWE NECK, 79, 96

EXCESSIVE GAMING,
repeal of statutes against, 363, 367
quere, whether unlawful in itself, 421
evidence of a gaming-house, 478

EXCHANGE. See Buyrne, SELLING AND ExcHanaine.
what is, 1

EXECUTED CONTRACT,
what is, 1

EXECUTORY CONTRACT,
what is, 1

EXPENSE. See Damacss, Kzzp.
of keep, 194
consequent on warranty, 196
in selling, damages for, id.
in advancing horse’s value, 197
of veterinary certificate and counsel’s opinion, id.
travelling expenses, when included in damages, id.

EXPRESSUM FACIT CESSARE TACITUM,
applies to warranties, 114

EYE,
how far loss of, patent, 128
convexity of, 129

FAIRS AND MARKETS OVERT,
sales at fairs and markets overt, 49
the general rule of law, id.
when market overt is held, id.

NN?
548 INDEX.

FAIRS AND MARKETS OVERT—continued.
where market overt is held, 49
market overt in London, 50
market overt without the city of London, id.
Markets and Fairs Clauses Act, id.
setting up private market, id.
horse ‘‘an article” within Act, id.
building separated from auctioneer’s dwelling-house by

yard, 50, 51

horse-dealer’s premises “a shop,” 51
where a horse at a fair is exempt from distress, 52
sale of diseased animals in market overt, id.
purchaser of stolen horses in market overt, 56

restitution of stolen goods, notwithstanding sale in market
overt, oJ

FALSE QUARTER, 79

FALSE REPRESENTATION. See Fravup, FravpvuLent
Contracts, REPRESENTATION, AND FRAUDULENT
REPRESENTATION.

FARCY, 80
water farcy, id.
a “ disease ” under Diseases of Animals Act, 81

FARRIER,
cannot refuse to shoe a horse, 213
when brought at a reasonable time, id.
answerable for his own want of skill, id.
where a third person is affected, id.
when answerable for his servant, 214
action against a farrier for pricking a horse, id.
Collins v. Rodway, id.
rule as to farriers, 215
no insurance against injury, id.
peculiar difficulties should be mentioned, 216
coming at an unreasonable hour, id.
farrying, &c. in the street, id.
horses standing to be shod not distrainable, 217
horse may be detained for the price of his shoeing, id.
such lien is favoured by law, id.
extends only to each particular time, id.
liability to feed « horse detained, id.

FAULTS, SALE OF GOODS WITH ALL,
excludes latent defects, 150
unless there be an express warranty, id.
or fraud is used 10 conceal them, 150, 151
for instance, the practice of plugging, 152
no difference whether sale takes place in market or pri-
vately, id.

FENCES,
liability of agister, when out of order, 225
maintenance of, 348
INDEX. 549

FENCES—continued.

obligations of railway companies in respect of, 348
fence within station-yard, 350

FENCING MATCH, 366

FERA NATURA, 329
FEROCIOUS AND VICIOUS ANIMALS,

wild and tame animals, 329

as to animals fer nature only, scienter unnecessary, id.

a bear fastened by a chain, id.

an elephant kept for the purpose of exhibition, 330
application of principle laid down in Fletcher v. Rylands,

id.
ere ought to be the liability of the person keeping them,
id.
the Athenian and Roman laws, id.
the French code, id.
argument in Mason v. Keeling, id.
decision in Scotland, 331
reversed in the House of Lords, id.
in England a scienter is held necessary, id.
where a dog bites a person, 332
necessity of ownership, id.
stray dog on defendant’s premises, id.
report that dog had been bitten by a mad dog, id.
where dog had bitten a child, id.
not necessary to show that dog has bitten another man, id.
evidence of scienter, id.
complaint to wife may be evidence against husband, id.
but complaint to husband will not render wife liable after
his death, 333
when knowledge of servant is knowledge of master, id.
no difference between a corporation and an individual, id.
quere whether promise to make compensation is evidence
against owner, id.
damage done by dog to game, ground of action, id.
where a dog worries sheep, 331, 334
evidence of mischievous propensity unnecessary under 28
& 29 Vict. c. 60, 334
in case of injury to cattle or sheep, id.
“cattle” includes horses and mares, id.
proof of ownership, id.
The Dogs Act, 1871, id.
dangerous dogs straying, 1d.
court of summary jurisdiction may order confinement
or destruction of, 335 :
and impose fine for non-compliance with order, id.
general restrictions on dogs being at large, id.
The Diseases of Animals Act, 1894, id.
power of Board of Agriculture to make orders as to
muzzling, &c. dogs, id.
straying horse kicking a child, id. :
trespassing horse injuring another horse, td.
550 INDEX.

FEROCIOUS AND VICIOUS ANIMALS—continued.
cattle straying off highway, 336
liability for trespass of dog, id.
negligence without proof of scienter, 337
breaking horses in a public place, id.
where a mad bull wounds a person, id.
where a bull singled out a person wearing red, id.
where a ram injured a person, id.
where a vicious beast kills a person, 338
owner bound to secure a vicious animal at all events, id.
he is liable to an action for damage, id.
the gist of the action, id.
not necessary to prove negligence, id.
when the action will lie, id.
injury occasioned by a vicious bull, 339
shooting a dog for worrying sheep, id.
for worrying fowls, id.
for chasing deer, id.
in self protection, id.

FISTULOUS WITHERS, 91
FIVES, 366, 425

FOOT-BALL, 366, 425
penalty for playing, on highway, 425

FOOT-PASSENGER,
his right to cross a road, 309
rule of the road does not apply, id.
going over a crossing, 310
alighting from a tram-car, id.

FOOT-RACE, 366, 376, 419, 425

FORCE,
may be used in entering a betting-house, 469, 470
may be used in entering a gaming-house, 475, 476

FORM OF WARRANTY, 113

FOUNDER, 80

FRAUD,
avoids sale, 117, 153
unless party defrauded wishes otherwise, 153
and unless injustice results, id.
or he continues to deal with the article, id.
in what it consists, 144
moral fraud, id.
must concur with damage, id.
legal fraud, id.
principle of relief for, 145
not fraud to suppress what there is no duty to communi-
cate, 146
collateral, does not avoid deed, 147
when implied by a foolish bargain, id.
INDEX. 551

FRAUD—continued.
practised upon the buyer, 153
practised upon the seller, id.
of infant, 155
of a married woman, id.
on a weak-minded person, 156
on a person when drunk, id.
goods returnable, where there is fraud, 162
loser may recover stake, where there is fraud, 382
a he had, with knowledge of fraud, claimed the money,
fraud or unlawful device at play, 423

FRAUDULENT CONTRACTS,

where the law does not interfere, 141

where several persons combine to cheat, id.

conspiracy to cheat indictable, id.

there must be evidence of concert, id.

what evidence has been held insufficient, id.

conspiring to obtain money by false pretences, 142

conspiring to induce a creditor to forego his claim, id.

where only one person cheats an action lies, id.

Chandelor v. Lopus, id.

remarks on that case, 143

form of action, 144

foundation of the action, id.

in what fraud consists, 7d.

there must be moral fraud, id.

effect of fraud, id.

how the question of fraud is to be decided, id.

falsehood must be followed by damage, 145

a naked lie no cause of action, id.

presumption that person defrauded was influenced by the
misrepresentation, id.

due caution must always be observed, id.

not fraud to suppress what there is no duty to communi-
cate, 146

requisites to an action on false representation, id.

or on breach of warranty, id.

caveat emptor, id.

a visible defect and a nude assertion, 147

dealing talk, id.

collateral fraud does not avoid a contract, id.

a foolish bargain, id.

representation known to be untrue, 148

made before a sale by auction, i.

made by a bidder at an auction, id.

representation not known to be true, id.

a well-grounded belief, 149

delusion affecting the contract, id.

representation to prevent inquiries, id.

representation through a third party, id.

representation by « third party, id.

a bond fide representation, 150

representation as to credit, id.
552 INDEX.

FRAUDULENT CONTRACTS—continued.

sale of goods “with all faults” excludes “latent defects,”
150

unless there be an express warranty, id.
or fraud is used to conceal them, 151
plugging, &c., 152
exposure in public market not evidence of fraud, id.
contract made voidable by fraud, 153
where fraud is practised upon the buyer, id.
he may recover price, id.
except where it works injustice, id.
where he continues to deal with the article, id.
where fraud is practised upon the seller, id.
resale by the buyer to an innocent vendee, 154
contract with intent to cheat the seller, id.
preconceived design of not paying for goods, id.
question for the jury, id.
resale at a reduced price, id.
unstamped agreement admissible to prove fraud, 155
payment by a cheque which is dishonoured, id.
fraud of an infant, id.
of a married woman, 7d.
where a contracting party is weak-minded, 156
drunkenness of a contracting party, id.
goods kept by the party when sober, id.

FRAUDULENT REPRESENTATION. See FravpvuLenr
ContRAcTs.
action for, 171
statement of, in claim, 173
proof in an action for, 177
defence to an action for, 186

FURIOUS DRIVING,

causing death by, manslaughter, 280

causing injury by, when indictable, 283
in Metropolitan Police District, id.
power of police constable, id.
conviction no bar to action of trespass against

constable, id.
conviction for, when a bar to subsequent action, 325

GAME,

dead, property of owner of land, 343

owner has a right to have it undisturbed, id.

cattlegate owners have not right of shooting, 344

reservation of manorial rights under Enclosure Acts in-
cludes shooting, id.

Ground Game Act, id.

two persons engaged in common pursuit, 345

trespass in search of, id.

shooting from the highway, 346

game falling on another’s land, id.

conviction for unlawfully obtaining, 347
INDEX. 553

GAMES AND GAMING,
gaming not unlawful, 421
where a London apprentice “frequents gaming,” id.
dismissal of servant for gaming on Stock Exchange, id.
excessive gaming, quere, unlawful in itself, id.
using false dice, 422
winning exorbitant sums, id.
cheating in a game or at play, 423
the fraud or unlawful device, id.
conspiracy to cheat, 424
where a criminal information was refused, id.
contracts for gaming, id.
money deposited for gaming, id.
French law as to games, id.
English law as to games, id.
the word game, id.
lawful games, &c., 425
lawful gaming or play, id.
“game” under the Highway Act, id.
unlawful games, 426
lotteries, 426—437. See Lorrerizs.
cock-fighting, bull-baiting, &c., 437
keeper of a place for this purpose, id.
within the Metropolitan District, 438
gaming in a public place, id.
what is a public place, 439
instruments of gaming, id.
gaming must be at some “‘game or pretended game of
chance,” 440
betting in streets in Metropolis, id.
gaming on licensed premises, id.
penalty for suffering, id.
conviction may be recorded on licence, id.
what constitutes gaming, id.
where money is staked, id.
liability of licensed person for suffering gaming by
private friends, 441
no offence on part of guest, id.
where money is not staked, id.
knowledge or connivance of licensed person neces-
sary, id.
knowledge of person in charge sufficient, 441, 442
liability of licensed person using premises in contra-
vention of 16 & 17 Vict. c. 119, 442. See Brrrine
Hovsss.
gaming in refreshment houses, 443
money lent for gaming, id.
test where the transaction is illegal, id.
securities for money lent for gaming, 444
identification of promissory note, 2d.
an I O U, id.
money lost at play, id.
securities for money so lost, id.
general effect of 5 & 6 Will. 4, c. 41, 445, 446
action against acceptor of bill of exchange, 447
action by acceptor of bill of exchange, id.
554 INDEX.

GAMES AND GAMING—continued.
recovery of principal and interest, 447
evidence of owner of a gaming-house, id.
summons to set aside a warrant of attorney, 448
a post obit security held good, id.
deed substituted for one tainted with illegality, id.

GAMING HOUSES,
a common gaming-house, 472
indictment for keeping one, id.
charge in the indictment, 473
any person may go on with it, id.
statutory provisions for an indictment, id.
notice by two inhabitants, id.
binding over the party accused, id.
duty of overseers of the poor, id.
penalty where constable neglects his duty, id.
setting up or playing at hazard, &c., 474
evidence that hazard was played, id.
what is a common gaming-house under 8 & 9 Vict. c. 109,
474
evidence on an information for keeping, id.
a club may be a gaming-house, 475
power of justices, id.
in the Metropolitan District, 7d.
penalties on gaming-house keepers under 8 & 9 Vict. c.
109, 476
penalty for playing, id.
evidence of gaming, id.
difficulty of obtaining evidence, 477
17 & 18 Vict. c. 38, id.
persons summarily convicted of obstructing officers, id.
persons giving false names or addresses, id.
owner or occupier may be fined 500]., or imprisoned, 478
“unlawful gaming,” id.
persons lable to conviction, id.
persons apprehended may be made witnesses, 479
penalties and costs, id.
on neglect to prosecute another person may be authorized
to do so, id.
remaining provisions of 17 & 18 Vict. c. 38, id.
appeal to quarter sessions, id.
certiorari taken away, id.

GATE,

left open by agister, 224

of a field left open, 348

of a railway crossing left open where there is a statutory
obligation id.

statutory obligation to maintain, 349

of a railway station left open where no statutory obliga-
tion, id.

GIBBING,
backing and, 66, 80
INDEX, 555

GIFT,
requisites of transfer of property by, 2
where a note or bill is a gift, 414

GLANDERS, 80

a to mankind, 81. See also DiszasEs or ANIMALS
ct.

GLASS EYE, 82, 129
GLAUCOMA, 81
GOLF, 366, 425

GOODS BARGAINED AND SOLD,
for payment of the price, 167
proof for the plaintiff, 175
defence, 183
damages, 191, 192

GOODS SOLD AND DELIVERED,
for payment of the price, 169
proof for the plaintiff, 176
defence, 184
damages, 193

GRAND STAND,
ordering off, by steward, 396

GRASS. See INNKEEPER and AGISTER.
GREASE, 81

GROGGINESS, 82

GRUNTING, 8&2

GUEST. See INNKEEPER.

GUTTA SERENA, 82, 129

HARE. See Huntine and Trespassinc.

HARNESS,
quiet in, 113, 116, 117

HAZARD,
an illegal game, 426
penalty on person setting up, 428, 474
evidence that it has been played, 474

HEREDITARY DISEASE, 82

HIGHWAY,
driving against an ass left fettered on, 291
person injured by falling over heap on, 293
opportunity of seeing it, id.
running over stones by night on, id.
556 INDEX.

HIGHWAY—continued.
level crossing in improper state, 293
leaving it, and sustaining injury, 294
excavation adjoining, when a public nuisance, id.
where steam-roller on, constitutes a nuisance, id.
true test of legal liability, 295
neglect of statutory duty by surveyor of, 298
abatement of nuisance on, by private individual, 310
trespass in pursuit of game from, 346
penalty for playing games on, 425
“a stag hunt” on, 426

HIRING HORSES,

letting for hire, 231

warranty of fitness for a journey, id.

reasonable care not sufficient,

person letting, insurer against all defects which care and
skill can guard against, 232

selecting « particular carriage, id.

where a particular horse is selected, 233

horse should not be used for a purpose other than that for
which it was hired, id.

what care is required on part of hirer, id.

liability of hirer for negligence of servant, id.

infancy good defence to an action on contract, id.

secus, where action is founded on tort, id.

where hirer is answerable at all events, 234

unnecessary deviation, id.

where negligence must be proved, id.

where the horse falls lame, id.

where the horse is exhausted, id.

where the horse refuses his feed, 235

where the horse is returned in worse condition, id.

expenses of curing sick horse, id.

where the horse is improperly doctored, id.

who must pay for shoeing, id.

bailment determined by selling the goods, id.

where the horse is stolen from the hirer, 236

where the horse is stolen by the hirer, id.

must have been originally taken with a felonious intention
at common law, 236, 237

now bailee indictable for larceny by 24 & 25 Vict. c. 96,
s. 38, 237

horse hired by a servant, id.

owner’s liability in case of accident, id.

horses driven by the owner’s servants, id.

horses driven by the owner’s servants to a certain place,
238

travelling post, id.

horses driven about town by the owner’s servants, id.

Laugher v. Pointer, id.

owner held liable in Quarman v. Burnett, 238, 239

wearing, the hirer’s livery, 239
a job-master’s agreement, id.
where the hirer is liable for damage, 240
INDEX. 557

HIRING HORSES—continued.
hirer liable through his own conduct, 240
hirer liable where he might have controlled his servant, id.
M'Laughlin v. Pryor, id.
opinion of the court of common pleas, 241, 242
the general rule, 242
where the hirer would not be liable, id.
hirer sitting outside liable, id.
jury must decide whether servant is acting for the hirer
or owner, 243
a hirer’s agreement, id.

HOCK,
enlarged, 79

HORSE,
an “article” within Markets and Fairs Clauses Act, 50
what included within this description, 52
killing or maiming, 55
drugging, 56
exposure for sale, when diseased, 81
sale of, by order of Court, 166
accident to, in yard of railway company, 269
negligence in harnessing, 285
damage to, from being frightened by a fire-basket, id.
by van left on roadside, 286
by an engine-driver blowing off steam at.a crossing, id.
accident the result of sudden fright of, 301, 302
kicking child on highway, 305
kicking at a sale, id.
injury to, by dog, 334
trespassing, horse injuring another horse, 335
breaking horses in a public place, 337
where a vicious horse kills a person, id.
See also RacEHORSE.

HORSE-BREAKER,
liable for damage, 218
has a lien, id.

HORSE-DEALER,
definition of a horsedealer, 33
a seller on commission, id. —
the proprietor of Aldridge’s, id.
no duty payable by a horsedealer, id.
exemption from licence for servants, id.
entry of premises by, 34
sale of horse by, on Sunday illegal, 30
giving a warranty on a Sunday, 31
premises of, a “shop” within Markets Clauses Act, 51
servant of, has implied authority to warrant, 123
his servant forbid to warrant, 125
general rule as to liability of, for warranty by servant, 126

HORSE RACE. See Racine.
what is, within Racecourses Licensing Act, 369
558 INDEX.

HORSE STEALING, &c.
statute of 24 & 25 Vict. c. 96, 52
description in an indictment, id.
when the offence is complete, 53
property given up, id.
delivery of a horse to a stranger, id.
delivery on trial, 54
goods taken without consent, id.
appropriation of a hired horse, id.
larceny without proof of sale, id.
taking with intent to use, id.
possession six months after loss, 55
killing or maiming horses, id.

other animals, id.

pouring acid into a mare’s ear, id.
“maiming and wounding,” id.
use of instrument need not be proved, id.
malice, 56
Drugging of Animals Act, id.
where the horse is stolen from the hirer, 236
where the horse is stolen by the hirer, id.
fraudulent appropriation by bailee of a horse, 237

HOSTLER. See INNKEEPER.
HOTEL-KEEPER. See INNKEEPER.

HUNTING AND TRESPASSING,
fresh pursuit over another’s land, 341
pursuing vermin, 7d.
no unnecessary damage, id.
digging for a fox, &c., id.
hunting for amusement, id.
Earl of Essex v. Capel, 342
huntsman liable for damage done by the field, 343
master of hounds, when responsible for the field, id.
killing a hare on another’s land, id.
taking a stag on another's land, id.
hunting a stray deer, id.
dead game property of owner, id.
he has a right to have his game undisturbed, 348, 344
cattlegate owners have not right of shooting, 344
reservation of rights of lords of manors under Inclosure
Acts, id.
who may kill hares without a game certificate, id.
Ground Game Act, 1880, id.
any person may hunt hares, 345
continued trespass, id.
two persons engaged in a common purpose, id.
trespass in search of game, id.
hunting with hounds or greyhounds, id.
jurisdiction of justices ousted, 346
trespass from the highway, id.
from own land to pick up game, id.
under 25 & 26 Vict. v. 114, 347
laying hands on a trespasser, id.
INDEX. 559

HUNTING AND TRESPASSING—continued.
opposing force to force, 347
defence to an action, id.
horse with a rider cannot be distrained, id.
action of trespass lies for riding over land, id.
but not where a dog jumps into a field, id.
maintenance of fences, 348
gate of a field left open, id.
leaving gate open where there is statutory obligation, id.
statutory obligation to maintain gates, 349
leaving gate open where no statutory obligation, id.
fence within station yard, 350

IDENTIFICATION,
of child with person in charge, 299
of passenger with driver, doctrine of exploded, 299, 300

INFANT,
may be an agent, 22
fraud of, 155
liable for torts, 171
but not where substantial ground of action is contract, id.
when lable for injury to hired horse, 233
penalty on inciting, to betting, 471

INHERENT VICE, 350, 353. And see Carryrne Horses.
INITIALS. See Srenature.

INNKEEPER,
his business, 200
definition of an inn, id.
derivation of hostler, id.
who is a guest, 2d.
what an innkeeper undertakes, id.
innkeeper compellable to receive a traveller, id.
may be indicted for refusing, 201
what has been held to be no defence, id.
sickness, drunkenness, &c., id.
action for compensation, id.
not liable for refusing to supply post-horses, id.
traveller not entitled to select particular apartments, id.
liability of innkeeper limited by 26 & 27 Vict. c. 41, id.
horses exempted from operation of this Act, id.
“wilful,” in section 1, must be read with “act” only, 202
verbal error will not vitiate notice, id.
omission of word “act,” material, id.
salaried manager not liable as innkeeper, id.
goods to which his liability extends, id.
liability, how ousted, 203
negligence on part of guest, id.
where a guest’s horse is stolen, id.
where another person’s horse is stolen, id.
principle upon which liability depends, 203, 204
circumstances under which he becomes merely a bailee, 204
horse out at grass by the guest’s desire, id.
560 INDEX.

INNIKEEPER—continued.

horse out at grass without the guest’s desire, 204

where a guest’s horse is injured, 205
presumption of negligence against the innkeeper, id.
not rebutted by stables being out of his control, 206

a guest’s horse not distrainable, id.
even where he is accommodated out of the inn, id.
or uses a stable provided for the occasion, id.

innkeeper’s lien, 207

innkeeper has a lien on a horse for its keep, id.
whether in the stable or at grass, id.

he cannot detain a guest for his bill, id.
but may detain his horse, id.

what his right of lien depends on, 208

horses and carriages sent to livery at an inn, id.

cannot sell one horse for the keep of others, id.

has a lien on a horse left by a wrong-doer, id.

but not if he knew it at the time it was left, 209
a horse left by the police, id.

eiving a guest credit, id.

a third party when answerable, id.

horse removed to defeat the lien, id.

keep during detention, id.

he cannot use a horse he detains, 210

he could not formerly sell a horse he detained, id.

but may now sell a horse after six weeks, 210, 211
advertisement of sale, 211

waiver of lien, id.

distrainor may sell a horse for his keep, 212

See also Games anp Gamine, LicENsED PREMISES.

INNOCENT VENDEE,
resale to, by buyer under fraudulent sale, 154

INSPECTION,
purchase without, 132

INSTRUMENTS OF GAMING,
what are, 488, 439
may be taken, 476
and destroyed, 477
used for billiards, 480

INTEREST,
when recoverable, 190

INTERPLEADER,
by auctioneer, when allowed, 37
claims must be co-extensive, id.
mode of trying disputed title, 105

IOU,
for money borrowed to pay bets, 416
not evidence of money lent, 444
for gaming debt, id.
INDEX. 561

JOBMASTER,
letting for hire, 231
his agreement, 239
where the hirer is liable to for damage, 240—243

JOCKEY,
professional, 386, 395
receiving his expenses, 390

JOCKEY CLUB,
courses governed by their rules, 394
will not entertain matter of fact, id.
arbitration by them, id.

JUDGE OF A RACE,
stewards are proper parties to appoint, 389
negligence in not appointing one, id.
powers of, do not accrue when race invalid, 391

KEEP,

recovering the cost of, 194

seller liable for reasonable keep, 195

what is reasonable, id.

keeping a horse till a fair, id.

innkeeper’s lien on a horse for, 207—211. And see Inn-
KEEPER.

livery-stable keeper has no lien for, 222

unless by agreement, id.

money received but returned cannot be set off in action by
livery-stable keeper for, id.

And see Lizn.

KICKING, 83

KIDNEY-DROPPING,
an unsoundness, 83

KNUCKLING OVER, 82

LAMENESS,
temporary lameness an unsoundness, 83

LAMINITIS, 84
LAMPAS, 85
LARCENY. See Horsz Sruaine, &c.

LATENT DEFECTS,
reason for requiring a warranty, 107
buyer protected against, by warranty, 108 ;
no exception as to, in case of purchase for particular
purpose, 116, 117
sale “with all faults” excludes, 150

0. OO
562 INDEX.

LENDING HORSES. See Borrowine Horszs.

LETTER,
contract by, 16, 17, 18, 19
warranty may be gathered from, 113

LETTING HORSES. See Hiring Horsss.

LICENCE,
for race-course, 370
conviction for suffering gaming on licensed premises may
be recorded on, 440
for billiards, 480

LICENSED PREMISES,

penalty for suffering gaming on, 440

conviction may be recorded on licence, id.

what constitutes gaming, id.

where money is staked, id.

liability of licensed person for suffering gaming by private
friends, 441

gaming on, no offence on part of guest, id.

when money is not staked, zd.

knowledge or connivance of licensed person necessary, id.

knowledge of person in charge sufficient, 441, 442

liability of licensed person for using, in contravention of
16 & 17 Vict. c. 119, 442. See Berrine Hovsss.

LIEN,
loss of, by vendor, 7
seller’s lien, 26
in case of exchange, id.
how suspended, id.
keeper of repository has, for expense of trial, 41
auctioneer has, for commission, &c., 47
innkeeper’s lien, 207—211. And see INNKEEPER.
farrier’s lien, 217
horsebreaker’s lien, 218
trainer’s lien, id.
stallion-master’s lien, 219
livery-stable keeper has no lien for keep, 222
except by agreement, id.
horse removed to defeat his lien, id.
livery-stable keeper has no lien for money expended on
horse, id.
agister has no lien, 227
except by agreement, 228

LISTS,
penalty for advertising, for betting, 468
seizure of, relating to betting, 469

LIVER DISEASE, 85

LIVERY-STABLE KEEPER,
constructive delivery by, 9
remedy against, for detaining a horse, 168
INDEX. 563

LIVERY-STABLE KEEPER—continued.
has no privilege, 221
liable where the horse is lost, id.
horse at livery distrainable, id.
but not where he is merely to be cleaned and fed, id.
distinction taken in Parsons v. Gingell, id.
livery-stable keeper has no lien for keep, 222
may have a lien by agreement, id.
horse removed to defeat such lien, id.
has no lien for money expended on horse, id.
what cannot be set off in an action for keep, id.
he must take reasonable care of the horse, 223
and see that stable is in a proper state, id.
but there is no implied warranty on his part that it is safe,
ud.

an action for not taking due care of a horse founded on
contract, 224

LORD CAMPBELUL’S ACT (9 & 10 Vict. c. 93),
action by representatives of person killed, 324
by persons beneficially interested, id.
where the action is maintainable, 324, 325
damages under, confined to injuries of which pecuniary
estimate can be made, 327, 328
amount of life policy not to be deducted from, 328
cannot be given for funeral expenses, id.
does not give remedy to a class but to individuals, id.
And see Damacss.

LOTTERIES,
statutes relating to, 426, 427
lotteries declared nuisances, 427
penalty for keeping a lottery, 7d.
penalty for drawing at a lottery, id.
foreign lotteries, id.
penalty for setting up sales by lottery, id.
games within intent of Act, 428
penalty on the adventurers, id.
sales by lottery void, id.
allotment or partition by lots, id.
passage and games with dice, 2d.
roulet or rolypoly, 7d.
littlegoes declared nuisances, td. :
penalty for keeping a place for a lottery or littlego, 429
penalty for suffering any lottery to be drawn, id.
jurisdiction of justices, id.
may authorize persons to break open doors and appre-
hend offenders, id.
penalty on agreement relating to lottery, 430
selling tickets in, id.
“place” within Lottery Acts, td.
recovery of penalties, id.
advertising lotteries, id.
Art Unions, 431
definition of lottery, id.
564 INDEX.

LOTTERIES—continued.

racing sweeps, 431

sale of property by lot, id.

attempt to evade the law, id.

lottery without blanks, 482
element of chance, id.
absence of advertisement, 433

“missing word” competition, id.

racing “ coupon competition,” 433, 434

ballot in building societies, &c., 434, 435

aiding, &c. in keeping a lottery, 435

results of illegality of lotteries, 436
security for carrying out agreement relating to, will

not be enforced, id.

right to recover amount of subscription, 436, 437
alleged winnings cannot be recovered, 437

LUNGS,
hepatized, 85

MAIMING,
maiming horses, felony, 55
distinction between maiming and wounding, id.
evidence of malicious, 56

MALLENDERS, 85
MANGE, 85

MANSLAUGHTER. See Neericent Drivine.
where killing a person held to be, 280
defence of contributory negligence in case of, 281
evidence identical with that required to establish action-
able negligence, 306

MANSUETZ NATURA, 329
MARKETS. See Farrs anp Markets Overt.

MARKETS AND FAIRS CLAUSES ACT,
horse “an article” within, 50
premises of horsedealer, when a “ shop” within, 51

MARRIED WOMAN,
may be an agent, 22
fraudulent contract by, 155, 156
keeping a gaming-house, 472

MASTER AND SERVANT. See Servant.

MASTER OF HOUNDS,
liable for damage, 341, 342
when responsible for the field, 343

MATCH,
between horses, 373
cricket match, 382
INDEX, 565

MATCH—continued.
wrestling match, 382
for a particular meeting, 395
at billiards, 403
walking match, 404, 419

MEMORANDUM. See Norr on MemoranpUM IN WRittne.

METROPOLIS,
penalty for betting in streets within, 440

METROPOLITAN DISTRICT,
penalty for furious driving within, 283
entering premises kept for cock-fighting, &c. within, 438
ae for suffering gaming in refreshment house within,

entering betting-houses within, 470
entering gaming-houses within, 475, 476

MISREPRESENTATION,
damages for, 198
And see FraupULENT ConTRACTS.

MISTAKE,
money paid under, 170

MOCK AUCTIONS,

an offence at common law, 45

MONEY,
paid under a mistake, 170
sent for speculation, 412
borrowed to pay bets, 416
deposited for gaming, 424
sum of, to be awarded to winner, 1d.
staked on licensed premises, 441
lent for gaming, 443
lost at play, 444
received in a betting-house, 467
found in a gaming-house, 476

MONEY HAD AND RECEIVED,
for repayment of the price, 169, 170
for repayment of part of the price, 170
for price of horse wrongfully sold, 170, 171
subject to certain conditions, 171
where conditions of sale have not been complied with, 179
proof for the plaintiff, 176 :
defence, 185
damages, 193

MORTGAGE,
given for a gaming consideration, 414, 444
void between the parties, 444, 445
good in the hands of a bond fide holder, 445
566 INDEX.
MURDER. See Necuicent Drivine.

NAME,
giving false, or address, in gaming-house, 477

NASAL GLEET, 86
NAVICULAR JOINT DISEASE, 85

NEGLIGENCE. See Hirnixne Horsrs, Borrowing Horses.

NEGLIGENT DRIVING,
definition of negligence, 279
negligent driving, id.
where killing a person is held to be murder, id.
where killing a person is held to be manslaughter, 280
burthen of proof, id.
furious driving, <d.
carriages racing, id.
driver unable to pull up, id.
causing death of passenger, 281
defence of contributory negligence, id.
where killing a person is held to be accidental death, 281,
282
trotting w waggon along a road, 282
trotting a waggon along a street, id.
remarks in East’s Pleas of the Crown, id.
where streets are unusually crowded, id.
where driver is indictable under 24 & 25 Vict. ec. 100,
s. 35, 283
furious driving in the Metropolitan Police District, id.
power of police constables, id.
conviction no bar to action of trespass against con-
stable, id.
where party injured may maintain an action, id.
duty of drivers of public and private vehicles, id.
negligence in the care of vicious horses, &c., 284
where another person strikes .a horse, id.
damages recovered in trespass, id.
driving furiously round a corner, //.
mail cart rapidly entering post-office yard, id.
negligence in harnessing, 285
frightening a horse by a fire-basket, id.
by van left on roadside, 286
by blowing off steam at a crossing, id.
by blowing off steam at a station, id.
rules as to civil liability, 287
negligence on one side only, rd.
passenger thrown from an omnibus, 288
horse and cart left standing in the street, id.
damage trom tackle breaking, 289
or from defect in the carriage, id.
negligence on both sides, id.
where negligence of injured party did not contribute to
the accident, 290
INDEX. 567

NEGLIGENT DRIVING—continued.
where such negligence occasioned part of the mischief, 290
contributory negligence of children, 290, 291
a wrongdoer not without the pale of the law, 291
driving against an ass fettered on the road, id.
question of ordinary care on the part of plaintiff, 292
on the part of the defendant, id.
circumstances of the case must be left to the jury, id.
horse injured in being led out of the stable, id.
where no negligence on the part of defendant, 293
a heap left on a highway, id.
opportunity of seeing the obstruction, id.
running over stones at night, id.
level crossing in improper state, id.
leaving the highway, 294
excavation a public nuisance, id.
steam-roller on highway, id.
trespasser may maintain an action, id.
true test of legal liability, 295
owners of private ways may be liable fer negligence, id.
injury to person unexpectedly on defendant’s premises, id.
obstruction by licensee of private road, id.
intervening act of third party, id.
liability of a contractor, 296
where there are several ways of doing a thing, 297
liability of an employer, id.
what is the question in such cases, id.
drain repaired by an ordinary but skilful labourer, id.
stones left by a sub-contractor, 298
surveyor of highways guilty of neglect of statutory duty,
id.
works executed under local acts, ad.
both parties to blame, id.
identification of child with person in charge, 299
doctrine of identification of passenger with driver ox-
ploded, id.
altogether an accident, 300
running over a person at night, 301
where it is the result of the sudden fright of the horse, i!
Hammack v. White, 301, 302
driver not calling out, 302
horse running away, 303
qualification of rule, id. ,
where defendant knows that horse is unmanageable, id.
or a kicker, id. . f
proof of negligence must be affirmative, id. :
when evidence is equally consistent with negligence and
no negligence, 304 ; ; Shes
where a horse straying on a highway kicked a child, id.
horse kicking at a sale, id. :
accident itself sometimes affirmative proof of negligence,
id. ;
evidence identical with that required for manslaughter,

306
568 INDEX.

NEGLIGENT DRIVING BY A SERVANT,
ve the master was liable according to former decisions,
liability now held to be more extensive, id.
Inmpus v. General Omnibus Company, id.
acts done within employment and for master’s interest, id.
if servant vindictively strikes horse with his whip, 312
instructions of master, if disregarded, immaterial, id.
master liable, if acts are done for his benefit, id., 318
unless done out of the servant’s employment, id.
relationship of master and servant not inferred, 314
liability of cab proprietor for negligence of driver, id.
relationship between proprietor and driver, id.
liability confined to acts done by driver within the
scope of his employment, 315
liability of owner of traction engine, id.
master and servant driving together, 316
servant entrusting the reins to a stranger, id.
extent of servant’s authority, id.
sudden emergency, id.
servant striking the horse of another, 317
servant striking passenger, id.
guard of omnibus using undue violence to passenger, 318
servant removing an obstruction, id.
servant acting improperly, “id.
making a detour for his own purposes, 318, 319
servant acting contrary to his trust, 319
taking his master’s horse without leave, 319, 320
re-entering on duty, 320
taking the horse of another, 321
no express authority of master necessary, id.
question for the jury, id.
master’s name on the cart, 322
giving an address, id.
hhability of master and servant respectively, id.
negligence of fellow-servant, id.
master bound to use due care in selection of servants, 323
liability of cab-proprietor to driver, 7d.
relation between the parties inter se, id.
action by representatives of a person killed, 324
wthin what time it may be brought, id.
by whom it may be brought, id.
by persons beneficially interested, id.
construction to be put upon the condition in 9 & 10
Vict. c. 93, id.
plaintiff must prove pecuniary loss, 325
plan of the locality, in action for negligent driving, id.
conviction for furious driving a bar to subsequent action,
id.
separate actions in respect of same wrongful act, id.
damages, 326
damage too remote, id.
injury done to a carriage, 327
measure of damages where a horse has been injured, id.
damages where a person has been killed, id.
how limited, 328
INDEX. 569

NEGLIGENT DRIVING BY A SERVANT—continued.
damages, evidence of actual pecuniary damage essential, 328

expectation of life of deceased to be considered in as-
sessing, id.

amount of policy on life of deceased not to be de-
ducted, id.

cannot be given for funeral expenses, id.

damages not given to a class, but to individuals, id.

NERVED HORSE,
held to be unsound, 86

NOSE,
chronic discharge, 86
nasal gleet, id.

NOT LYING DOWN, 87

NOTE OR MEMORANDUM IN WRITING,
under Sale of Goods Act, 1893, s. 4, 5
written agreement, 14
no particular form required, id.
names of the contracting parties, id.
terms of the contract must be stated, id.
may be collected from more than one document, id.
the Stamp Act, 15
catalogue at a sale, id.
price where agreed upon, id.
where no price is agreed upon, 16
where no mode or time is stated, id.
contract by letter, id.
must express all the terms of the agreement, 17
mutual assent, id.
introduction of new term, 17, 18
terms cannot be varied by parol, 19
but may be explained, 1d.
evidence that goods are supplied on credit, 20
as to matters antecedent in the writing, id.
as to condition precedent, id.
memorandum made after action, id.
memorandum drawn up by agent of both narties, 23
though unsigned, sufficient, ad. : .
by agent of seller, at request of buyer, not sufficient, id.
by auctioneer, 38
by auctioneer’s clerk, id.

NOTICE,

of conditions of sale, 41

of the breach of warranty, 157

of the nature of the unsoundness, 181

buyer not bound to give it in either case, 157, 165, 181

length of time before it is given, 157, 165

by railway companies with regard to carrying, 254, 255,
256, 257
And see Carryine Horsss. :

of consignee’s refusal of goods to consignor, 268, 269
570 INDEX.

OMNIBUS,

racing, 280

passenger thrown from one, 288

doctrine of identification of passenger with driver ex-
ploded, 299

case of Limpus v. General Omnibus Company, 311

guard of, using undue violence to drunken passenger, 318
And see NEGLIGENT DRIVING.

OPACITY OF THE LENS,
held to be an unsoundness, 67

OSSIFICATION OF THE CARTILAGES, 87
OVERREACH, 87

OWNERSHIP,
warranty of, by auctioneer, 43

PAROL EVIDENCE,
written contract cannot be varied by, 15, 19
but may be explained, 19

PAROTID GLAND,
ulcerated, 88

PARTICULARS OF SALE,
notice of, 42

PART PAYMENT. See Earnest anp Part Payment.
PARTY TO BE CHARGED. See SigNatTuRE.

PASSAGE,
illegal game, 362, 426
penalty for setting up place for, or playing, 428

PATENT DEFECTS,
not covered by a warranty, 128
in what they consist, id.
loss of an eye or tail, id.
how far the loss of an eye is patent, id.
“bright eye,” 129
convexity of the eye, id.
where the buyer knows the defect, id.
where defects are discussed, 129—131
conclusion to be drawn from the cases, 131
suspected defects, 132
where seller objects to examination, id.
purchase without inspection, id.
caveat emptor does not apply, id.
inspection prevented by fraud, id.
purchase after inspection, 146
INDEX, 571

PAYMENT. See Deuivery anp Payment.
proof of payment of price, 178

PEDIGREE,
selling according to, 137
when first attended to, 360

PHARAOH,
an illegal game, 426
penalty for setting up, 474

PIMPLE ON THE SKIN, 92

PLACE,
“open and public place” under Vagrant Law Amendment
Act, 439
under Lottery Acts, 430
under Betting Act, 1853, 452—460
And see Burrinc Hovszs.

PLATE,
to be awarded to the winner, 373

PLAY OR PAY,
evidence admitted to explain, 395, 396

PLEADING AND EVIDENCE FOR THE PLAINTIFF,

executory and executed contracts, 167

action for price of horse, id.

action for not accepting, id.

resale of the goods, 168

action for detention of goods, id.

action for not delivering, id.

specific performance under Sale of Goods Act, 169

goods sold and delivered for payment of price, id.

action maintainable on rescission of contract by one of the
parties, id.

horse sold and delivered, id.

money had and received for repayment of price, 169, 170

under a mistake, 170

money had and received for repayment of part of price, id.

money had and received for price of horse wrongfully sold,
170, 171

money received subject to certain conditions, 171

action on a breach of warranty, id.

liability of an infant, id.

action for fraudulent representation, id.

statement of facts in action for breach of contract, 172

statement of facts in action for deceit, id.

statement of the consideration, id.

if the horse turn out lucky, id.

statement of the warranty, 173

condition annexed to the warranty, id.

the purchase and the payment, id.

statement of the false warranty or fraudulent representa-
tion, 178, 174
572 INDEX.

PLEADING, &. FOR THE PLAINTIFF—continued.
statement of the breach, 174
statement of the damage, id.
proof in goods bargained and sold, 175
proof in an action for not accepting, id.
meaning of readiness and willingness, id.
proof in an action for not delivering, id.
proof in goods sold and delivered, 176
proof in money had and received, id.
proof of an account stated, id.
proof in an action for breach of warranty, 177
where it is doubtful whether false warranty is proveable,
id.
proof in an action for fraudulent representation, id.
proof of the bargain and sale, 178
proof of the consideration, id.
proof of payment of the price, id.
appropriation of money tendered, id.
proof of the promise or warranty, 179
a warranty not contained in the receipt, id.
warranty in a receipt not always conclusive, 180
written warranty requires no agreement stamp, id.
where authority to warrant need not be proved, 181
where authority to warrant must be proved, id.
proof of power to rescind, id.
proof of fraudulent representation, id.
proof of the breach of warranty, id.
notice of the nature of the unsoundness, id.
evidence as to unsoundness, 182
matter of fact alone, id.
either fact or veterinary opinion, id.
both fact and veterinary opinion, id.
veterinary opinion alone, id.
evidence as to vice, id.
evidence as to unfitness, &c., id.
proof of rescission, 183
proof of tender, id.

PLEADING AND EVIDENCE FOR THE DEFENDANT,
defence for detention of goods, 183
defence for goods bargained and sold, 7d.
defence in action for not delivering, 184
where evidence of usage of trade is not admissible, id.
defence for goods sold and delivered, id.
defence to action on a bill for the price, id.
evidence in reduction of damages, 185
defence for residue of the price, id.
defence for money had and received, 7d.
defence to an action on a breach of warranty, id.
a surreptitious warranty, id.
evidence in reduction of damages, 186
defence to an action for fraudulent representation, id.
disputing the warranty, id.
disputing the unsoundness, &c., id.
subsequent recovery, 187
INDEX. 573

PLUGGING, 152
POLICE. See Consrasirs, Bertine Hovszs, Gamine Hovszs.

POLICY,
wagering, 413

POLL-EVIL, 38
POSSESSION,

constructive, by vendee, 8
only presumptive proof of ownership, 23

POST. See Lerrer, Price.

POST-HORSES,
innkeeper not liable for refusing to supply, 201

POST OBIT,
when security for a bet may be set off against subsequent
losses, 394
assigned, held good, 448

POST-OFFICE ORDER,
payment of debt, 28

POSTING,
damage done when, 238

P. P., MEANING OF, 395, 396

PRESCRIPTION ACT,
custom to resort to races, not an easement within, 372

PRICE,
under 10]., 3
day agreed upon for payment, id.
101. or upwards, 5
when agreed upon, material part of bargain, 15
“on moderate terms,” held sufficient statement, 16
a reasonable price is to be inferred, when none stated, id.
condition as to, ascertainable, 24
effect where not ascertainable, id.
when sent by post and lost, 28
who entitled to receive it at an auction, 46
when price vests in vendor at an auction, 47
where auctioneer is innocent agent of principal’s fraud, id.
a sound price not tantamount to a warranty, 110
action for price of horse, 167
goods sold and delivered for payment of, 169
money had and received for payment of, 169, 170
for repayment of part of the price, 170
for price of horse wrongfully sold, 171
proof of payment of price, 178
defence to action for residue of, 185
574 INDEX.

PRINCIPAL AND AGENT. See Acenr.

PRIZE,
to be awarded to the winner, 373

PROMISSORY NOTE. See Birt or Excuanes.
breach of warranty no defence in action on, 184
unless there be a total failure of consideration, id.
given for a gaming consideration, 406, 414, 444
void between the parties, 444, 445, 446
good in the hands of a bond fide holder, 444
effect of giving one in payment of a bet, 406, 444
identification of, 444

PUBLIC HOUSE. See Licznszep Premiszs.

PUBLIC PLACE,
penalty for gaming in, 488, 439
what is a public place, 439
instruments of gaming, id.
gaming must be at some “game or pretended game of
chance,” 440

PUFFING,
at an auction, effect of, 44

PUMICED FEET, 88
PUTTING STONE, 366, 425

QUALITY,
warranty of, 106, 107. And see Warranty.

QUIDDING, 88

QUIET,
in harness, 116, 117

QUITTOR, 88
QUOITS, 366, 425

RACE-COURSE,
in neighbourhood of metropolis to be licensed, 369

RACE-HORSE,
repeal of duty payable on, 385
rights of part-owners of, 371
scratching a race-horse, 374

RACING, WAGERS AND GAMING,
history of, 351
racing, a lawful game, 425
INDEX. 575

RACING, WAGERS AND GAMING—continued.

the law as to racing, 371

rights of part-owners of a race-horse, id.

custom to race, id.

to resort to races, 372

though a good custom, not an easement within the Pre-
scription Act, id.

training horses on a common, id.

stakeholders, 373

sweepstakes, id.

matches, id.

the Act for the Suppression of Betting Houses, id.

entry for a race, id.

race not to be run within a year, id.

“scratching ” a race-horse, 374

terms of a race, 392

rules of a regatta, id.

stewards, &c., cannot waive any condition of a race, id.

waiver by consent of parties, 393

effect of acquiescence in breach of rules, id.

rules of the Jockey Club, 394

arbitration of the Jockey Club, id.

sporting phraseology, id.

a “selling” race, 395

a professional jockey, id.

horse regularly hunted with hounds, id.

match for a particular meeting, id.

betting on a race not illegal, 398

RACKETS, 366, 425

RAILWAY. See Carrying Horses, Huntinc anp Tres-
PASSING.

RAT-TAILS, 89
REARING, 89

RECEIPT. See Accerrance anp Receipt, Stamp, DELIVERY,
PLEapine.

RECOVERY OF STOLEN HORSES. See Sroten Horses.

REFRESHMENT HOUSE,
penalty for suffering gaming in, 443

REGATTA, 366, 425
rules of, 392

_REMITTENT INFLAMMATION, 67

REPLEVIN ;
maintainable for any unlawful taking of goods, 60

REPOSITORIES. See Auctions AND REPOSITORIES.
576 INDEX.

REPRESENTATION. See Warranty DisTINGuisHED FROAI
REPRESENTATION, and FrauDULENT ConTRACTS.
does not affect a written warranty, 113, 114
untrue, if immaterial, does not, avoid sale, 117, 118
intended as a warranty, 134
distinguished from warranty, id.
where it amounts to a warranty, 135
the correct rule, 136
influence of, need not be proved, 145
false, requisites of action for, 146
known to be untrue, 148
made before sale by auction, id.
made by a bidder at, id.
not known to be true, id.
founded upon a well-grounded belief, 149
to prevent inquiries, id.
through a third party, id.
by a third party, id.
bond fide, 150
as to the character of another, id.

RESCISSION,
right of, 2
action maintainable on, 169
money had and received lies, 170
proof of rescission, 176, 181, 183
of contract by tossing, 402

RE-SELLING,
damage on, with false warranty, 198

RESERVE,
sale without, 42

RETURN. See Breach or WaRRANTY.
condition as to, 47, 162, 163, 164
if unsound, 162
if unsuitable, 163
if disapproval capricious, 164
if unfit for particular purpose, id.

RHEUMATISM, 89
RINGBONE, 89
RISK,

after sale, 24

condition as to, in contract for carriage of horse, 259, 260
owner’s risk, 261. And see Carrying Horsss.

ROAD. See Rute or tue Roan.

ROARING,
decisions on the subject, 90

ROLLING, 91
INDEX. 577

ROULET, OR ROLY-POLY,
prohibited, 426, 428

ROWING MATCH, 366, 391, 392

RULE OF THE ROAD,
customary rules of driving, 306
law of the road under Highway Act, id.
bicycles, &c. are carriages within the meaning of the
Highway Acts, id.
right side of the road, id.
driving on the wrong side in the dark, 307
seeing a person coming on his wrong side, id.
does not justify a wanton injury, id.
rule of the road not inflexible, id.
light load meeting heavy, 308
parties meeting on a sudden, id.
rule of the road applies to saddle-horses, id.
modification of rule, id.
tram cars, id.
ordinary vehicles meeting tram cars, 309
foot passengers, id.
rule of the road does not apply, id.
going over a crossing, 310
alighting from a tram car, id.
nuisance on public highway, id.
horse and carriage before tradesman’s door, id.

RUNNING AWAY, 91

SADDLE GALLS, 91

SADDLE HORSES,
rule of the road applies, 308

SAILING MATCH, 366

SALE,
what is, 1

of goods under 101., 3

hand sale, 4

of specific chattel, 23

“without reserve,” 42 ;
auctioneer entitled to commission on sale, not by auction,

48
avoided by fraud, 117
by an agent, 118
with all faults, 150
wager under guise of, 401, 402
by order of Court, 166

SALE OF GOODS ACT, 1893,
sale and agreement to sell, 1, 2
“sale” includes bargain and sale as well as sale and

delivery, 2
PP
578 INDEX.

SALE OF GOODS ACT, 1893—continued.
contract of sale for 10]. and upwards, 5
instance of such a contract, id.
requisites of sale under s. 4, 6
acceptance and receipt, 6
earnest, 12, 13
part payment, 14
note or memorandum in writing, 14
no particular form required, id.
catalogue at a sale, 15
contract by letter, 16
signature by party to be charged, 20
signature by an agent, 21
aes recognition of contract by parties sufficient,
3

provisions of, as to sales by auction, 42, 44, 45
goods put up in lots, 42
where bidder may retract, id.
puffing, 44, 45
sale not notified to be subject to right to bid on behalf
of seller, id.
right to bid expressly reserved, 45
provisions of, as to market overt not to affect law relating
to sale of horses, 57, n.
implied undertaking as to title, &c., 103—105
sale by description, 105
implied conditions as to quality or fitness, 106, 107
when condition to be treated as warranty, 108, 109
goods which have perished, 110
goods perishing before sale, but after agreement to sell, id.
remedy for breach of warranty, 161, 162
action for price, 167
action for not accepting, id.
action for not delivering, 168
specific performance of contract to deliver specific or
ascertained goods, 169
interest and special damages, 191
damages for non-acceptance, 192
damages for non-delivery, id.
damages for breach of warranty, 193

SALLENDERS, 92
SANDCRACK, 92
SCAB, 93

SCIENTER,
See Ferocious anD Vicious ANIMALS.

SCOTLAND,
extension of Betting Act to, 470
INDEX. 579

SECURITIES. See Games anp Gamine, Gaming Hovsss.

SELLER,

effect of his becoming bailee, 7

when he may disaffirm sale, id.

may become agent of buyer, 8

his lien for the price, 26, 27

his right of stoppage in transitu, 27

not entitled to notice of unsoundness, 157

not bound to take back unsound horse, id.
unless the contract was executory, id.
or there is fraud, 162

where he refuses to take back the horse, 164

SERVANT. See Warranty anp Satz By an AGENT, Hinine
Horszs.
damage caused by negligence of, 119
warranty by, as special agent, 121
in case of private sale, 122
in case of sale at a fair, id.
warranty by, as general agent, 123, 124
upon an incidental matter, 124
warranty by, after sale, 125
warranty by, when forbidden to give one, id.
master unwilling to stand by warranty of, 126
rule as to servant binding his master, id.
when farrier is answerable for his servant, 214
horse hired by a servant, 237
horses driven by owner’s servants, 237, 238
horses driven about town by the owner’s servant, 238
hirer liable where he might have controlled his servant,
240
jury must decide whether servant is acting for hirer or
owner, 243
borrowed horse cannot be used by a servant, 246
test whether person employed is a contractor or a servant,
297
negligent driving by a servant, 311. And see NEGLIGENT
DRIvING BY A SERVANT.
striking another’s horse, 312, 317
striking # passenger, 317 ;
negligence of fellow-servant, or stranger volunteering,
322, 323
master bound to use care in selection of servants, 323

SHIVERING, 93
SHOULDER BRUISED, 92, n.
SHOULDER-TIED, 132
SHYING,

a vice, 93
an unsoundness, 94
580 INDEX.

SIDEBONES, 94

SIGNATURE,
by the party to be charged, 20
what is necessary, id.
may be in the beginning or middle of instrument, id.
it is then open to jury whether party meant to bind him-
self, id.
what is sufficient, as to initials, id.
by a printed name, 21
by filling up a printed invcice, id.
of other party unnecessary, id.
in order book, on fly-leaf, sufficient, id.
of instructions to telegraph clerk, id.
by seller insufficient, id.
sufficient when made for another purpose, id.
by an agent, 7d.
what equivalent to, under Sale of Goods Act, 23
authority may be conferred by word of mouth, 22
auctioneer, agent and witness of both parties, id.
auctioneer’s clerk, id.

SKITTLES,
conspiracy to cheat at, 423
a lawful game, 425
playing for money, or money’s worth, gaming, 440

SLIPPING THE COLLAR, 94

SMITH. See Farrier.

SOUNDNESS,
definition of, 62
important decision as to, 64, 65

SPAVIN, 94, 182

SPECIFIC GOODS, DELIVERY OF,
how enforceable, 169

SPEEDY-CUT, 94

SPLINT, 94
decision on the subject, 95, 182
nota patent defect, 129, 132

SPORTING PHRASEOLOGY,
across country, 394

a selling race, 395
P. P., 395, 396

SPRAIN AND THICKENING OF THE BACK SINEWS, 95
STAGGERS, 82
INDEX. 581

STAKE,
French law as to recovery of stakes deposited, 424
English law, id.
distinction between stake and bet, id.
16 & 17 Vict. c. 119, does not apply to stakes, 468

STAKEHOLDER,
clerk of the course usually stakeholder, 374
has no right to the stakes, 375
competitors may choose their own. stakeholder, id.
ground of action against stakeholder, id.
position of stakeholder towards parties, id.
cannot set off an unpaid stake, id.
where he may cash a cheque, id.
stake must abide the event of a legal contract, 376
recovery of deposit from stakeholder, id.
Batty v. Marriott overruled, id.
ee of Lord Cairns, L. C., in Diggle v. Higgs, 877—
7
right to recover not affected by Gaming Act, 1892, 379
recovery of money paid on an illegal contract, id.
what the party should do, id.
demand before the money is paid over, 380
bringing an action not sufficient, id.
where the money is paid over without dispute, 381
where a horse is disqualified, id.
where owner knows the disqualification, id.
proper party to receive the stakes, id.
under what circumstances winner may maintain an action
against, 382
a cricket match, id.
a wrestling match, id.
loser may recover his stake from, where there has been
fraud, id.
how he may waive his claim, 383
where a stakeholder may recover from the winner, 1d.
money in the hands of stakeholder does not pass as “my
monies” under depositor’s will, id.
notice to stakeholder to withdraw stake, 399

STALLION-MASTER,
has a lien, 219
for work done on a Sunday, id.

STAMP,
agreement stamp not necessary to warranty, 180

STAND,
when steward of race-course may order off, 396

STAR-GAZER, 96

STATUTE OF FRAUDS,
requisites under s. 4, 4
repeal of s. 17, 5
reproduction of, ins. 4 of Sale of Goods Act, id.
582 INDEX.

STEWARDS,
their duties, 383
disputes to be settled by them, 384
award should be made by all, id.
custody of the stakes in the meantime, id.
legal position of stewards, 385
decision not necessarily invalidated by one of them being
interested, id.
decision of two out of three stewards held binding, id.
stewards differ from legal arbitrators, id.
steward’s decision need not be formal, 386
mere errors of judgment will not defeat award of, 387
steward’s decision on construction of rules, 388
provisional decision of, id.
appointment of a judge, 389
negligence in not appointing one, id.
decision of the umpire or committee, 390
when jurisdiction has not attached, 391
cannot waive any condition of a race, 392
waiver by consent of parties, 393
effect of acquiescence in breach of rules, ic’.
where course governed by rules of Jockey Club, 394
ordering off the grand stand, 396
ordering goods, 397

STOCK EXCHANGE,

gaming on, 407

as in a time bargain, id.

rarity of real time bargains on, 408

time bargain not necessarily invalid, id.

instances of real time bargains, 408, 409

action by jobber against principal, 408

action by trustee of insolvent broker, 409

action by broker against principal, 410

sale of prospective dividends, 411

transactions with outside brokers, 412
frequency of time bargains, id.

money lent for speculation, id.

recovery of securities deposited as cover, 413

STOCK JOBBING ACT,
repeal of, 407

STOLEN HORSES,
recovery ot them, 56
sale in market overt, id.
statutory regulations, 57
not affected by Sale of Goods Act, id., n.
recovery when sold under these regulations, id.
owner must prove the horse was stolen, id.
sale out of market overt, id.
recovery when not sold under these regulations, +d.
proof of compliance with statute, 58
owner must first endeavour to bring the thief to justice,
id.
rule to be taken with modifications, id.
INDEX. 583

STOLEN HORSES—continued.
where the action is against a third party, 59
evidence of conversion, id.
order for restitution, id.
or action of trover, id.
applies to false pretences, 60
and receiving stolen goods, id.
may be made where second bond fide purchase, id.
order of police magistrate, id.
where no special damages can be awarded, id.
replevin for unlawful taking, id.
wrongful sale by agent of horse entrusted to him, 61
And see Hrrine Horsss, Horse Srearine, and Farrs
AND Markets OVERT.

STOPPAGE IN TRANSITU,
seller’s right of, 27
when goods are held to be in transitu, id.
effect of, id.

STRANGLES, 96

STRING-HALT,
held to be an unsoundness, 96

SUNDAY,
market overt in London on all days but, 49
billiard playing not allowed on, 480

SUNDAY DEALING,
law of King Athelstan, 29
statute of Charles 2, id.
institution of proceedings under, 30
farmers not within this statute, id.
sale by a horse-dealer, id.
by an ordinary person, 31
a subsequent ratification, id.
breach of warranty given on Sunday, id.
work done by a stallion-master, 219

SURVEYOR. See Hicuway.

SWEEPS,
on races, illegal, 431

SWEEPSTAKES, 373

TABLES,
for gaming, 476
may be taken, id. :
evidence of a gaming-house, 2d.
may be destroyed, 477

TAIL,
loss of, 128
584 INDEX.

TEMPORARY DISEASE,
unsoundness, 65

TENDER,
by buyer of horse, 164
sale after, id.
notice instead of, 165
length of time before notice of, id.
appropriation of it, 178
proof of it, 183
necessary to recover keep, 194, 195, 196

TENNIS, 366, 425
THICKENING OF THE BACK SINEWS, 98
THICK-WIND, 98

THINNESS OF SOLE,
held not to be an unsoundness, 98

THOROUGH-PIN, 99
THRUSH, 99
TIME BARGAIN. See Srock ExcHANcE.

TIPSTER,
agreement with, void, 404. And see ADVERTISING.

TITLE,
warranty of, 103, 104
dispute respecting, how tried, 105

TRACTION ENGINE,
owner of, not liable for negligence of hirer, 315

TRAINER,
remedy against, for detaining a horse, 168
has a lien, 218

TRAM CARS,
modification of rule of the road by, 308
ordinary vehicles meeting, 309
alighting from, 310

TRESPASS. See Neeuicent Drivine, Huntine and TREs-
PASSING.
by horse, liability of owner for, 335, 336
by persons hunting for amusement, 341, 342
huntsman liable for damage done by field, 343
master of hounds, when responsible for field, id.
continued trespass, 345
two persons engaged in common pursuit, id.
INDEX. 585

TRESPASS—continued.
in search of game, 345
jurisdiction of justices, when ousted, 346
from the highway, id.
from his own land to pick up game, id.
laying hands on a trespasser, 347
defence to an action for, id.
lies for riding over land, id.
but not where a dog jumps into a field, id.

TRIAL OF A HORSE,
right of, 3
by rule of a repository, 41
objected to, to conceal a defect, 132

TRIPPING, 99

UMPIRE. See Staxenorper, STewaRrps.

UNSOUNDNESS,
what constitutes it, 62
present state of the law, id.
rule regarding it, 63
important decision as to, 64
how it should be left to a jury, 66
proof of, 181
notice of nature of, id.
matter of fact alone, 182
either fact or veterinary opinion, id.
both fact and veterinary opinion, id.
veterinary opinion alone, id. ;

USAGE,
evidence of usage not to warrant, 124

VALUE, Declaration of. See Carryine Horszs.
VENDOR. See SELiEr.

VETERINARY SURGEONS. See Farrizrs.
Royal College of, 212
Veterinary Surgeons Act, 1881, id.
penalty for obtaining registration by false representa-
tion, id.
or on registrar for wilful falsification of register, id.
registration of colonial, &c. practitioners, id. _
penalty for false representation of membership of
Royal College, 212, 213 . ee
penalty on unqualified person using a description im-
plying that he is a veterinary surgeon, id.
a “veterinary forge,” id., n. :
a “pharmaceutical and veterinary chemist,” id.
remedy against for detaining a horse, 168
evidence of, 182
586 INDEX.

VICE,
what constitutes it, 62
present state of the law, id.
rule regarding it, 65
how it should be left to a jury, 66
proof of, 181, 182
inherent vice, 250—253. And see Carryrna Horses.

VICIOUS,
to clean, 100
to shoe, id.

VICIOUS ANIMALS. See Ferocious anp Vicious ANIMALS.
VISIBLE DEFECT, 147

WAGERS,

wagers at common law, 398

wager on the life of Napoleon, id.

wager on the result of an election, id.

betting on a race no longer illegal, id.

bets not recoverable, id.

deposit recoverable before the event, 399

decision of the Court of Common Pleas, id.

what is a wagering contract, 400

essentials of, 400, 401

wager under guise of sale, 401, 402

money advanced with stipulation, 402

rescission of contract by tossing, id.

price of mare to be increased, if she won, by her winnings,
403

offer by advertisement, id.

acceptance of, id.

billiard match, id.

rotundity of earth, id.

trotting against time, 404

agreement with tipster, id.

walking match, id.

contribution to person nominating winner not within the
proviso, id.

effect of wagers being void on note given in payment, 406

the Act for the Suppression of Betting Houses, 407

the Stock Jobbing Act, id.

gaming on Stock Exchange, 407413. See Stock Ex-
CHANGE.

statute against wagering policies, 413

what held to be such a policy, id.

wager as to a declaration of war, id.

what was held not to be such a policy, id.

paying a bet, 414

giving a security, id.

where a note or bill is a gift, id.

taking a stolen bank note in payment, 415

taking stopped note in payment, id.

what invalidates the holder’s right, id.

mala fides must be distinctly proved, id.
INDEX. 587

WAGERS—continued.
money borrowed to pay bets, 416
a betting partner, id.
has right of action for share of profits, id.
entitled to an account of winnings, 417
w betting agent, id.
principal may recover winnings from, id.
when estopped from denying agency, id.
proof in action by principal against, id.
not liable for default in making bet, 418
employment of, formerly implied authority to pay
bet if lost, id.
Read v. Anderson, id.
but promises to repay sums paid under wagering con-
tracts are now void, id.
cannot maintain action for recovery of commission, id.
decisions under Gaming Act, 1892, 418, 419
cheating wager, 419
welshing, id.
WALL-EYED, 100
WARBLES, 100

WARRANTY,
of soundness limited as to time by conditions of sale, 40
of ownership by auctioneer, 43, 44
effect of private warranty of soundness before sale, 45
warranty required in buying a horse, 103
implied undertaking as to title, id.
warranty of title formerly not implied by law of Eng-
land, id.
rule of law, 103, 104
under s. 12 of Sale of Goods Act, 104
when the consideration fails, 105
mode of trying a disputed title, id.
interpleader order not granted unless claims co-exten-
sive, id.
sale by description, id.
intention of parties, 106
implied conditions as to quality or fitness, id.
rule of law, id.
under s. 14 of Sale of Goods Act, id.
exceptions to rule, 107
reason for requiring a warranty, id.
buyer should protect himself by one, 107, 108
definition of warranty, 108
no particular words necessary, id.
representation of vendor at time of sale, i.
words of expectation do not amount to, id.
when condition to be treated as warranty, 108, 109
acceptance under entire contract, 109
sale of specific goods, 110
goods which have perished, id. :
goods perishing before sale, but after agreement to sell, id.
a sound price not tantamount to a warranty, id.
588 INDEX.

WARRANTY—continued.
a general warranty, 110
a qualified warranty, id.
a limited warranty, 39, 111
complaint of breach must be made within time limited,
id.
effect of notice of breach before removal, 112
accidental injury, id.
where performance of condition impossible, id.
a special warranty, id.
a written warranty, 113
a special agreement, id.
form of warranty, id.
effect of a written warranty, id.
warranty may be gathered from letters, id.
the parties are bound by it alone, 114
unless fraud is shown, id.
representation does not avail, id.
it cannot be extended by implication, id.
a warranty is several though the contract be entire, id.
a warranty applies to the time of sale, id.
warranting a future event, 114, 115
buying for a particular purpose, 115
must be reasonably fit for the purpose, id.
a horse to carry a lady, id.
a carriage horse, id.
no exception as to latent undiscoverable defects, 116
quiet in harness, id.
unfitness must be clearly proved, 117
must have existed at time of sale, id.
where there is presumption that horse answers warranty,
id.
warrantor’s liability, id.
sale avoided by fraud, id.
but not by immaterial representation, id.
proof of warranty not contained in the receipt, 179
proof of, when to be gathered from letters, id.
when formally made in writing, 7d.
warranty in a receipt not always conclusive, 180
warranty need not have agreement stamp, id.
defence to breach of warranty, 185
proof of surreptitious warranty, 7d.
And see Breace or WaRRANTY.

WARRANTY AND SALE BY AGENT,
an agent cannot delegate his authority, 118
nor exceed it, id.
agency determines by principal’s death, id.
difference between a remunerated and an unremunerated
agent, id.
agent acting without proper authority, id.
his personal responsibility, id.
where he cannot be sued on the contract, 119
but is liable in damages, id.
principal answerable for his fraud, id.
INDEX. 589

WARRANTY AND SALE BY AGENT—continued.
misrepresentation collateral to the contract, 119
damage caused by his negligence, id.
servant putting up glandered horse in stable of another,
id.
undisclosed principal, 120
where vendor does not know that there is a principal,
id.
alteration of account between principal and agent, id.
where vendor knows name of principal, id.
vendor’s election, id.
where vendor does not know name of principal, id.
acre described as agent may be proved to be principal,
principal cannot be proved to be an agent, id.
their respective rights of action on a contract, id.
warranty by a servant as special agent, id.
when entrusted to sell horse privately, 122
when entrusted to sell horse at a fair, id.
warranty by a servant as general agent, id.
servant of horse-dealer has implied authority to war-
rant, id.
illustration of rule, id.
evidence of custom not to warrant, 124
warranty by servant of horse-dealer on incidental mat-
ter, id.
warranty by a servant after sale, 125
warranty by a servant forbid to give one, id.
warranty by a stranger forbid to give one, 126
master unwilling to stand by his servant’s warranty, id.
tule as to a servant binding his master, 7d.
warranty by a person entrusted to deliver, 127
agent employed to take a warranty, id.
action against a pretended agent, id.
proof in warranty by a servant, 181

WARRANTY DISTINGUISHED FROM REPRESENTA-

TION,

representation intended as a warranty, 134

recommendation of the seller, id.

affirmation as to value, id.

distinction between a warranty and a representation, id.

where a representation amounts to a warranty, 1385

it must form part of the contract, id.

and be made pending contract, id.

intention of parties, 135, 136

question to be put to jury, 136

rule as to warranty and representation, 7d.

mere expression of opinion, id.

selling according to a pedigree, 137 :

partly a warranty and partly a representation, id. ;

jury must decide between « warranty and a representation,
138

judgment in Behn v. Burness, 139, 140

WARTS, 100
590 INDEX.

WATER FARCY, 80, 100
WEAK-FOOT, 100
WEAVING, 101

WELSHING,
an indictable offence, 419

WHEEZING, 101

WHIST,
lawful, 425

WHISTLING, 101

WILFUL MISCONDUCT, 267. See Carrytxe Horszs.

WILREMHAUNCH, 101

WIND-GALLS, 101

WIND-SUCKING, 102

WITNESS,
person found in gaming-house may be made a witness, 479
and freed from all penalties, id.

WOLF’S-TOOTH, 102

WRESTLING MATCH, 366, 382, 425

YACHTING, 366, 425. And see Regarras.

YELLOWS, 102.

THE END.

BRADBURY, AGNEW, & CO, LD., PRINIERS, LONDON AND TONBRIDGE,