(SnrtifU ICaui ^rlyonl Slibraty 
 
Cornell University Library 
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 Wrongs and their remedies rbeing a treat 
 
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Ilrfliip anh^eir lleiiteMes, 
 
 A TREATISE 
 
 THE LAW OP TORTS. 
 
 C. G ADDISON, Esq., 
 
 ACTHOB OP " THB LAW OP OONTBAOTB." 
 
 f ottrl| dlltttoit. 
 
 Bt F. S. p. WOLFERSTAN, Esq., 
 
 OF THE imrSIt TE3IPLE, BABBiaTBB-AT-LA'W. 
 
 BANKS AND BROTHERS, 
 
 144 NASSAU STREET, 
 NEW YORK. 
 
 1873. 
 
PREFACE 
 TO THE FOURTH EDITION. 
 
 The favourable reception which the last edition of this work, 
 published only three years ago, has met with from the profession 
 and the public, renders it unnecessary to say more as a preface to" 
 the present one, than that the same care has been exercised in 
 preparing it for the press, to render the book worthy of being still 
 considered the standard authority on the subjects of w'hich it treats. 
 
 The alterations rendered necessary by the Bankruptcy Act, 
 32 & 33 Vict. c. 71 (which was passed after the last edition had 
 passed through the press), have been made; and, although this 
 edition contains the results of more than 470 new cases decided 
 since the last edition was published, the size of the work has not 
 been materially, if at aU, increased. 
 
 The cases decided and statutes passed whilst the work was in 
 the press, to the end of November, 1872, will be found, so far as 
 they have not been incorporated in the text, in the Addenda ; and 
 by a fresh method of printing and arrangement of the Index it will 
 be found, it is hoped, easier of reference than in the last edition. 
 
 Temple, 
 
 Nov. 1872. 
 
 a 2 
 
EXTRACT FKOM THE PREFACE TO THE 
 FIRST EDITION. 
 
 To those readers who are unacquainted with English law terms 
 it may be desirable to explain, that the word Tort, handed down 
 to us from our Norman jurists, is used in our law at the present 
 day to denote a civil wrong, for which compensation in damages is 
 recoverable, in contradistinction to a crime or misdemeanour, which 
 is punished by the criminal law in the interests of society at large. 
 Every invasion of a legal right, such as the right of property, or the 
 rights incident to the possession of property, or the right of personal 
 security, constitutes a Tort ; and so does every neglect of a legal 
 duty,- and every injury to the person, or character, or reputation of 
 another. 
 
 The Law of Torts, or civil wrongs, therefore, having for its 
 object the protection of our property, and the security of our 
 persons and reputation, is a branch of law of general interest and 
 importance, and there are few persons of any property or station , 
 in the country to whom some knowledge of it does not become 
 essential at some time or another, either for the purpose of 
 maintaining themselves in their just rights, or for the purpose of 
 ascertaining the nature and extent of their legal duties and 
 responsibilities. 
 
 Torts, it has truly been observed, are infinitely various, and it 
 would be an endless task to enumerate all the wrongs of which 
 the law takes cognizance, and in respect of which redress, in 
 the shape of compensation in damages, is afforded. It is not 
 intended to treat herein of all civil wrongs of every sort and 
 description, but of such wrongs and injuries to property, to the 
 person, and to reputation, as constantly occur in the ordinary 
 intercourse of mankind,- and daily occupy the attention of the 
 lawyer : such as wrongful infringements of the rights and privi- 
 leges incident to the ownership and possession, and use and enjoy- 
 ment, of landed property ; nuisances and injuries arising from the 
 
VI PEEEACE. 
 
 negligent use and management of such property ; iujuries to lands 
 and tenements from waste, negligence, and fire; injuries from 
 trespasses and unlawful entry on land, in disturbance of the 
 possessory and proprietary rights of ,occupiers and landlords ; 
 wrongful seizure and conversion of chattels ; injuries from the 
 negligent use and management of chattels, and the negligent 
 performance of work ; injuries from negligence and breach of duty 
 on the. part of bailees, common carriers, and common innkeepers; 
 wrongful distress and sale of things distrained; assault and 
 battery, and wrongful imprisonment; malicious arrest, malicious 
 prosecution, and malicious abuse of legal process ; trespasses and 
 injuries committed in the execution of void or irregular legal 
 process, or in the execution of warrants and orders of jtistioes ; 
 injuries resulting from the exercise, or intended exercise, of statu^ 
 tory powers and authorities; injuries from libel and slander; 
 fraudulent misrepresentation and deceit; fraudulent concealment, 
 breach of warranty and false pretences ; matrimonial &nd parental 
 injuries ; adultery and seduction. 
 
 In the follo'v^ing Treatise the Author' haS endeavoured to present 
 to the reader an accurate view of the present state of the law on 
 the subjects treated of, without burtheniilg his ttind with technical 
 legal learning which is now obsolete, or unnecessarily perplexing 
 his judgment with contradictory and conflicting decisions ; and it 
 is hoped that the task has been faithfully and carefully accoihplished. 
 
 Innek Temple, 
 
 June, 1860. 
 
CONTENTS. 
 
 CHAPTEE I. 
 
 THE BAW OF TORTS, 1 — 56. 
 
 Section I. — 0/ actionable wrongs, and 
 injuries that are not actionable, 1 — 34. 
 
 Of the conjunction of damage and wrong 
 
 necessary to create a, tort, 1 
 Ex damno sine injuria non oritur actio, 2 
 Damage and wrong-^Dangerous things 
 
 set in motion, ib. 
 Damage without wrong, ib. 
 Wrong without damage, 5 
 Damage too remote to give rise to a cause 
 
 of action, ib. 
 Damage, though remote, sufficiently con- 
 nected with the wrong, ib. 
 It is not necessary to ^ow that actual 
 pecuniary damage has been sustained, 7 
 Every injury to a right imports a damage, 
 
 ib. 
 The procm?ement of the violation of a 
 
 right creates a cause of action, 8 
 The general legal rights of mankind are 
 the rights of personal security, personal 
 liberty, of private property, 9 
 Injuries to property brought about by 
 
 menace or fraud, ib. 
 Literary and artistic property, 10 
 Interference by force or fraud with the 
 free exercise of another's trade or occu- 
 pation, or means of livelihood, ib. 
 Interference with a man's trade by fair 
 
 competition, 11 
 Disturbance of a ferry, 12 
 Disturbance of a market, 13 
 Market tolls, ib. 
 Torts founded on contract, 14 
 Breach of duty, ib. 
 Breach of duty on the part of assignees of 
 
 leases, 15 
 Breach of duty on the part of public 
 
 officers, ib. 
 Breach of duty by postmasters^— Non- 
 delivery of letters, 17 
 Negligence and breach of duty on the 
 part of consignors and bailors of chat- 
 tels, ib. 
 Torts founded on negligence, 18 
 Contributory negligence oru the part of 
 the plaintiff, 19 
 
 Liability of the defendant in respect of 
 the remote, ulterior, and unusual conse- 
 quences of a negligent act, 22 
 
 Liability of the master for the negligence 
 of his servant, 23 
 
 Indemnification of the master by the 
 servant, 26 
 
 Fraud and falsehood are mala in se, ib, 
 
 A refusal to obey the lawful decree of a 
 court of justice, 27, 
 
 Malicious injuries, ib. 
 
 Malicious procurement of loss or damage 
 to another, 28 
 
 Abuse of authority by governors of 
 colonies, 29 
 
 Abuse of authority on the part of naval 
 and military officers, ib. 
 
 Torts committed by British subjects in 
 foreign countries, 30 ' 
 
 Suspension of the remedy by action when 
 
 - the tort amounts to a felony, 31 
 
 Merger of a trespass in a felony, ib. 
 
 Cheating by forgery, 32 
 
 Actions for bigamy, 33 
 
 Actions for misdemeanours, ib. 
 
 Public and private wrongs, ib. 
 
 Of the legal maxim that there is no wrong 
 without a remedy, ib. 
 
 Waiver of tort, 34 
 
 Section II. — Of rights, duties, aud obli- 
 gations created by by-law and by statute, 
 35—56. 
 
 By-laws founded on. statute, imposing 
 penalties for the suppression of certain 
 torts, 35 
 
 By-laws of municipal corporations, ib. 
 
 By-laws for the prevention of indecent 
 bathing, 36 
 
 By-laws by public commissioners, local 
 boards, and public companies, 37 
 
 By-laws in restraint of trade, 38 
 
 Bemedies for the enforcement of statutory 
 duties and obligations, ib. 
 
 Of the imposition of a penalty as a cumu- 
 lative, exclusive, or alternative remedy 
 
vm 
 
 CONTENTS. 
 
 for the protection of a right, or the sup- 
 pression of a •wrong, 39 
 Infringement of statutory copyright — • 
 
 Penalties and actions for damages, 41 
 Infringement of copyright in lectures — 
 
 Penalties and actions for damages, 43 
 Infringement of copyright in published 
 
 dramatic literary property and musical 
 
 compositions, ib. 
 Unlawful representation of dramatic 
 
 pieces and musical compositions, 44 
 Infringement of the Sculpture Copyright 
 
 Acts, 45 
 Piracy of useful and ornamental designs, 
 
 ib. 
 Piracy of prints and engravings, 46 
 
 Infringement of copyright myBMir^, 
 drawings, and photographs, 47 
 
 Eegistration of the proprietorship ot the 
 copyright, ib. 
 
 Proof of the copyright, iJ. 
 
 Penalties for the use of counterfeit trade 
 marks, ib. . 
 
 Penalties for the commissioirof nuisances, 
 
 48 
 
 Of patent right, ib. ^ , rn ' 
 
 The subject-matter of a patent, SO 
 Kemedies for infringement, 62 
 Kemedies for infringement by assignees 
 
 and licensees, 53 ' 
 Want of novelty or utility, 54 
 
 Statutory benefits and burdens, 56 
 
 CHAPTEE II. 
 
 OP INI-EINGBMENTS UPON EIGHTS NATUEALLY INCIDENT TO THE 
 POSSESSION ANl5 OWNEESHIP OF LAND, 57 — 78. 
 
 Section I. — Of the right and burthen of 
 natural servitude, 57 — 69. .- 
 
 Torts arising from the disturbance of 
 rights of servitude, 57 
 
 Natural and necessary servitudes, ib. 
 
 Dominant and servient tenements, 58 
 
 Prsedial and urban servitudes, ib. 
 
 Natural and necessary servitudes acces- 
 sorial to the di^ainage of land, 59 
 
 Statutory powers for the improvement of 
 the drainage of land, 60 
 
 Of the natural servitude of support from 
 adjoining land, ib. 
 
 Of the natural servitude of support from 
 the subsoil to the surface of land, when 
 the surface and subsoil constitute sepa- 
 rate freeholds' vested in different pro- 
 prietors — Mutual rights and duties of 
 separate owners of the surface and sub- 
 soil, 61 
 
 Abridgment of the right and servitude of 
 
 * support by express contract, 63 
 
 Transfer of natural servitudes, ib. 
 
 Torts arising from the diversion of toiit 
 ning water, ib. 
 
 Diversion of water for purposes of irriga- 
 tion and drainage, 64 
 
 Eflfect of acquiescence in the -unlawful 
 diversion of water from a running 
 stream, 65 
 
 Of the right to pen back water, 66 
 
 Injuries from thesdefilement of streams, ib. 
 
 Disturbance of the "Jjermissive use and 
 enjoyment of water, 67 
 
 Of the right of landovraers to well-water, 
 ih. 
 
 Of the flooding of lands from artificial 
 collections of underground water, 68 
 
 Statutory property and interest of navi- 
 gation companies in the water of a 
 navigable river, 69 
 
 Seotion II. — Of the remedy by action and 
 by injunction for infringements of i-ights 
 incident to the possession wnd ownership 
 of land, 69—78. 
 
 Direct and consequential injuries, 69 
 
 Parties to be made plaintiffs — Tenant 
 and reversioner, 70 
 
 Parties to be made defendants, i6. 
 
 Of the plaintiff's declaration of his cause 
 .of action — Venue, 71 
 
 Declarations for infringements of the na- 
 tural right to support from adjoining 
 land, 72 
 
 Pleas by the defendant, not guilty, 73 
 
 Of the plea of leave and licence, ib. 
 
 Pleas of a prescriptive right, 74 
 
 Evidence at the trial — Proof on the part 
 of the plaintiff, ib. 
 
 Proof of seizin of lands and tenement, ib. 
 
 Damages recoverable, ib. 
 
 By tenant and reversioner, 75 
 
 Injunction -to prevent the disturbance of 
 rights naturally incident to the posses- 
 sion and ownership of land, 76 
 
 Injunction to restrain the diversion of 
 water, 77 
 
 Injunction to restrain a disturbance of 
 the right to support, ib. 
 
 Injunction to prevent obstruction to the 
 repair of a watercourse in alieno solo, ib 
 
CONTENTS. 
 
 IX 
 
 CHAPTEE III. 
 
 OF CONVENTIONAL AND PRESCRIPTIVE SERVITUDES — E ASEMENTS 
 AND PROFITS A PRENDRE, 79 — 160. 
 
 Section I. — Of conventional and presarip- 
 tive servitudes — Easements and profits a 
 prendre, 79 — ^143. 
 
 Easements, 79 
 
 Profits k prendre, 80 
 
 Unlimited claims in the nature of ease- 
 ments, profits, and servitudes, ,81 
 
 Grants of rights of servitude — Licenses, ih. 
 
 Reservation of privileges amounting to an 
 express grant, 84 
 
 Implied reservation or grant of easements, 
 ib. 
 
 Privileges and servitudes which pass as 
 accessorial to the use and enjoyment of 
 the principal thing granted — Omne ac- 
 cessorium sequitur swum principah, 86 
 
 Ways^of necessity, 87 
 
 Necessary incidents to a grant of a right 
 of way or watercourse, 88 
 
 Eight of towing on the banks of a navi- 
 gable river, ih. 
 
 When an easement of support from the 
 adjoining land of the grantor passes as 
 accessorial to a grant of land or of a 
 tenement, ib. 
 
 Of the right to search for minerals under* 
 lands weighted by railways and canals, 
 89 
 
 Servitude of support from one house to 
 another, where several houses have 
 been buiLt together, so as to require 
 mutual support, 92 
 
 Accessorial servitude of support where 
 the separate floors of a building are 
 granted to several different proprietors, 
 93 
 
 Grants of the privilege of a free passage 
 of light and air, 94 
 
 When the privilege of free passage for 
 light and air across adjoining land 
 ' passes as accessorial to a grant or con- 
 veyance, ib. 
 
 Of the rule or maxim of law that no man 
 I shall derogate from his own grant, 96 
 
 Of the transfer from one person to another 
 of easements and profits d prendre, ib. 
 
 Easements and profits a prendre in gross, 
 
 ■ ih. 
 
 Where the grant is of a liberty, license, 
 power, or authority to dig, work, mine, 
 and search for, raise and carry away, 
 metals and nninerals, 99 
 
 Bxcliisive licenses, 101 
 
 The Roman Law, ib. 
 
 Rights over another's land claimable by 
 custom, ib. 
 
 When a profit ct prendre is claimable by 
 custom — Manorial customs — Rights qi 
 common, 103 
 
 Common appendant, 105 
 
 Common appurtenant, ib, 
 
 Common'of shack, 106 
 
 Eight of common jno' came de vicinage, 1 OG 
 
 Common of turbary, ib. 
 
 Common of estovers, 107 
 
 Common in gross, 108 
 
 Rights of sole and several pasturage — 
 Cow-grasses and cattle-gates, 109 
 
 Eights of tinbounders to search for tin in 
 Cornwall, ib. 
 
 The lord, by his grant of common, gives 
 everything accessorial to the enjoyment 
 of the right, 110 " ' 
 
 Inconsistent rights of common, ih. 
 
 Of the servitude of maintaining and re- 
 pairing sea-walls, ditches, and sluicas, 
 
 ih. s 
 
 Of customary rights of fishing, and driv- 
 ing stakes for nets in the sea-shore. 111 
 
 Customary and prescriptive rights of 
 bathing on the sea-shore, 112 
 
 Title by prescription, ib. 
 
 Prescriptive right to a pew in a church, 
 113 
 
 Prescriptive rights founded on the jjre- 
 sumption of a grant — Presumption of 
 a grant from long-continued uninter- 
 rupted user and enjoyment as of right. 
 Hi . 
 
 Of the Prescription Act, 115 
 
 What profits or benefits may be claimed 
 by user and enjoyment imder the Pre- 
 scription Act, 118 
 
 In order to gain a prescriptive title from 
 uninterrupted iiser and enjoyment 
 under the first and second sections of 
 the Prescription Act, it must be proved 
 that the enjoymsnt has been "as of 
 right,"' 119 
 
 Enjoyment by consent or agreement, ib. 
 
 User and enjoyment as of right against 
 all persons having an estate or interest 
 in the land, i5. 
 
 What sort of enjoyment is essential to 
 the gaining of a prescriptive right of 
 way, 120 
 
 Enjoyment of a way over land out on 
 lease, ib. 
 
 Enjoyment of a right of common by a 
 tenant over land in the possession and 
 occupation of his landlord, ib. 
 
 What sort of enjoyment is essential to 
 the gaining of a prescriptive right (o 
 the use of any watercourse or water — ■ 
 Natural and artificial watercourses, 121 
 
 Prescriptive right to pen back water, ib. 
 
 Prescriptive right to foul the pure water 
 of a stream, and convert a natural 
 watercourse into a sewer, 122 
 
 User and .enjoyment of water from arti- 
 ficial drainage, ib. 
 
 What sort of enjoyment is essential to 
 the gaining of a right of support to 
 buildings from the adjoining land of a 
 neighbouring proprietor, 124 
 
CONTENTS. 
 
 Houses resting against each other, 124 
 What sort of enjoyment of the benefit of 
 a boundary fence is requisite to gain a 
 prescriptive right to have the fence 
 kept up at the expense of one land- 
 owner^for the benefit of another, 125 
 What sort of enjoyment is essential to 
 the gaining of a prescriptive right to 
 ' the access of light to windows, ib. 
 Unity of ownership of the dominant and 
 servient tenements preventing the ac- 
 quisition of a prescriptive right to the 
 free access of Ught, 127 
 Enlargement of windows — Enjoyment of 
 
 enlarged wijjdows, ib. 
 What interruption in the enjoyment 
 prevents the acquisition of title by 
 prescription, 128 
 Of the necessity of a continuous enjoy- 
 ment- as of right and without inter- 
 ruption, 129 
 What breaks the continuity of the enjoy- 
 ment — Asking leave, 130 
 Of the necessity of a continuous enjoy- 
 ment down to the period of the com- 
 mencement of the action, ib. 
 Exclusion from the computation of the 
 thirty and twenty years' enjoyment of 
 those periods during which parties 
 otherwise capable of resisting the 
 claim were infants, idiots, feme cmertes, 
 or tenants for Ufe, 131 
 Of the right of reversioners, to exclude 
 from the computation of the forty 
 years the periods of the enjoyment of 
 a way or watercourse, and use of water 
 over lands demised for hfe or years, 132 
 Waiver and extinguishiiient of easements, 
 
 133 
 Parol abandonment of incorporeal rights, 
 
 134 
 Waiver and extinguishment of an ease- 
 ment of light and air, 135 
 Extinguishment of an easement of light 
 by alterations in windows and biiUd- 
 ings, 136 
 Disuse of right of way, 137 
 Extinguishment of ways of necessity, 138 
 Suspension and forfeiture of rights of- 
 way and watercourse by the non-per- 
 formance of conditions annexed to the 
 grant, ib. 
 Bisuse of right to water, ib. 
 Merger and extinguishment of easements 
 and servitudes by a unity of ownership 
 of the dominant and servient tene- 
 ments, ib. 
 What sort of unity of ownership is essen- 
 tial to the extinguishment of ease- 
 ments, 140 
 Eevival and re-creation of easements and 
 servitudes which have been extin- 
 guished or suspended by unity of 
 ownership, ib. 
 
 Effect of the desti-uction or alteration of 
 
 the dominant tenement, 142 
 Of the maintenance and repair of ways 
 
 and watercourses,. 143 
 
 Section II. — Remedy for the infrmgemevt 
 of incorporeal rights, 144 — 160. 
 
 Abatement of obstructions to the enjoy- 
 ment of easements and profits aprendre, 
 144 
 Of the right to distrain beasts wrongfully 
 
 put upon a common, ib. 
 Of actions for the infringement of incor- 
 . poreal rights, ib. 
 
 Actions for taking manure from com- 
 mons, ih. 
 Actions for surcharging of commons, ib. 
 ' Actions for obstructions to the enjoyment 
 of a private right of way, 145 
 Of the parties to be made plaintiffs — 
 
 Tenant and reversioner, ib. 
 -Parties to be made defendants, 147 
 Of the plaintiff's declaration — Venue — 
 
 Statement of the cause of action, ib. 
 Declarations for an obstruction to the 
 plaintiff's lights or privileged windows, 
 150 
 What may be given in evidence under 
 the plea of not guilty — Not guilty by 
 statute, ib. 
 Traverse of the right, 151 
 Plea of leave and license, ib. 
 Evidence at the trial, ib. 
 Proof of enjoyment so as to gain a pre- 
 scriptive title at common law or under 
 the Prescription Act, ib. 
 Proof of right of way, 152 
 Proof of a right to the free access of 
 
 Ught, ib. 
 Proof of obstruction to the right of way 
 
 — Erection of gates,-153 
 Proof of obstructions to the access of 
 
 light, ib, - 
 Proof of right to an ancient weir and 
 
 fishery in a navigable river, ib. 
 Proof of the servitude of maintaining and 
 
 repairing fences, 154 
 Inadmissibility in evidence of statements 
 and decjlarations by a tenant in dero- 
 gation of the title of his landlord, i6. 
 Of the damages recoverable in actions 
 for the infringement . of incorporeal 
 rights, ib. 
 ^injunction to prevent the disturbance of 
 
 easements granted by parol, 156 
 Injunction to prevent obstructions to the 
 
 free access of light to windows, 157 
 Injunction to "prevent the working of 
 mines and quarries so as to deprive the 
 adjoining or superjacent land of its 
 necessary support, 168 
 Bill of peace, 159 
 
CONTENTS. 
 
 XI 
 
 CHAPTER IV. 
 
 OF NUISANCES AND INJURIES FROM THE NEGLIGENT USE AND 
 
 MANAGEMENT OF REAL PROPERTY, AND*FROM KEEPING 
 
 FEROCIOUS ANIMALS, 161—229. 
 
 Section I. — Of nuisances and injuries 
 from the negligent use and management 
 of real property, and from Tcee'ping fero- 
 cious animals, 161 — 193. 
 
 Of nuisances, 161 
 
 Nuisances from the non-repair of, or from 
 neglecting to cleanse, sewers, drains, 
 and watercourses, 162 
 
 Offensive smells and noisome trades, 163 
 
 Brick-burning, 164 
 
 Of prescriptive rights to the exercise of a 
 noisome trade, 165 
 
 Nuisances from privies, chimneys, and 
 manufactories — Liability of the land- 
 lord and occupier, ib. 
 
 Defilement of springs and running 
 streams, 166 
 
 Noisy nuisances, 167 
 
 Collection of crowds, ib. 
 
 Injuries from spring-guns, man-traps, 
 dog-spears, engines, and machines 
 placed on land, ib. 
 
 Injuries to animalls from dog- traps, 168 
 
 Injuries from unguarded wells, mining- 
 shafts, areas, and cellars, ib. 
 
 Injuries from the dangerous state of 
 private ways, '170 
 
 Nuisances adjoining highways — Danger- 
 ous pits ' and excavations — Steam- 
 engines and windmills, 171 
 
 The use of locomotive steam-engines on 
 highways, 172 
 
 Dangerous ejfcavations adjoining high- 
 
 Dedication of a highway to the public 
 subject to certain risks and inconve- 
 niences, 173 
 
 Obstructions in pubUo thoioughfares, 174 
 
 Obstructions in navigable rivers, 175 
 
 Obstructions from sunken vessels, anchors, 
 telegraph wires, &c., 176 
 
 Where the pubKc right of free navigation 
 is. taken away, and the power of re- 
 moving obstructions is vested in the 
 hamds of conservators of the river, ib. 
 
 Injuries to land from the erection of groins, 
 sea-walls, and defences against tides 
 and currents, 177 
 
 Negligent overloading of floors of ware- 
 houses and buildings, ih. 
 
 Non-repair of ruinous houses — Liability 
 of landlord and occupier, ib. . 
 
 NegUgenoe in pulling down houses — 
 Negligent excavations, 179 
 
 Euinous party-walls, 180 
 
 Insecure fences, hedges, and gates, ib. 
 
 Railway fences — ^Statutory servitude im- 
 ' posed upon railway companies of keep- 
 ing up and maintaining fences, ib. 
 
 Negligent use and management of rail- 
 
 way stations — Insufficient lights and 
 
 guards, 182 
 Ruinous and insecure railway bridges, 
 
 viaducts, and embankments', 183 
 Neglect of railway companies to erect and 
 
 maintain bridges over highways, ib. 
 Negligent management of railway-gates 
 
 placed across public carriage-i-oads, 
 
 184 * 
 
 Negligent management of gates placed 
 
 across tramways, 185 
 Leaving open accommodation gates, ib. 
 Dangerous canals, ib. 
 NegEgent management of docks and 
 
 wharves, 186 
 Dangerous machinery, ib. 
 Injuries to servants from dajigerous pre- 
 mises, ib. 
 Exemption of the master from liability 
 
 when the danger is known tc the Ser- 
 vant, 187 
 Where the workman is employed in the 
 
 use of dangerous machinery, ib. 
 Injuries to workmen from defective hoist- 
 ing-tackle in mines, and insecure 
 
 scaffolding and ladders, 188 
 Injuries to gUests from the dangerous 
 
 state of the premises of their host, ib. 
 Contributory negligence on the part of 
 
 plaintiff, 189 
 Where the plaintiff's right to recover is 
 
 not defeated by his being a trespasser, 
 
 190 
 Nuisances and injuries from the keeping 
 
 of ferocious animals, ib. 
 Effect of putting up a notice to beware of 
 
 the dog, 192 
 Dogs worrying sheep and destroying 
 
 game, ib. 
 Of the keeping dogs reputed to have been 
 
 bitten by a mad dog, ib. 
 Injuries from driving ferocious animals 
 
 along a public thdroughfare, ib. 
 
 Section II. — Abatement of nuisances — 
 Statutory remedies and penalties — - 
 A ctions — Prohibition — Injunction and 
 indictment, 194 — 214. 
 
 Abatement of nuisances, 194 
 
 Abatement of nuisances upon commons, 
 196 
 
 Removal of ruinous buildings, ib. 
 
 Abatement of nuisances arising from the 
 exercise in excess of limited rights, 197 
 
 Removal of bb'sttuctions in public ,tho- 
 roKglifaites and watercourses, 198 
 
 Removal of obstructions to the naviga- 
 tion of navigable rivers, ib. 
 
 Obstructions to fishing, 199 
 
CO^^TfeNTS. 
 
 PuUiug down ruiijpiis houSes adjoining 
 
 ' a public thoroughfare, 199 
 
 Statutory remedies and penalties in re- 
 spect of nuisances from gas-works, 200 
 
 Penalties for fouling water, 201 
 
 Penalties for the non-consumption of 
 smoke, ib. 
 
 By-laws for the suppression of nuisances, ih. 
 
 Actions for nuisances — Private injuries 
 from a public nuisance, ib. 
 
 When a notice to abate or discontinue a 
 nuisance should be given before com- 
 mencing an action, 209 
 
 Continuing nuisances, ib. 
 
 Parties to be made plaintiffs, iO. 
 
 Parties to be made defendants, 203 
 
 Declarations for nuisances, 205 
 
 DeclaraiSons for injuries from the keep- 
 iug of ferocious animals, 208 
 
 Plea of not guilty, ib. 
 
 Pleas justifying the fouling of the water 
 of a stream under a prescriptive right 
 to discharge into it the refuse of dye- 
 houses and manufactories, and the 
 washings of mines, 209 
 
 Pleas justifying the obstruction of a 
 watercourse, ib. 
 
 Pleas justifying the poisoning of the 
 atmosphere with noxious smells and 
 ^halations, under a prescriptive right 
 .to carry on an offensive trade, 210 
 
 Evidence at the trial — Proof on the part 
 of the plaintiff, ib. 
 
 Evidence for the defence, 213 
 
 Damages recoverable, ib. 
 
 Section III. — Prevention of nuisances 
 by injunction and indictment, ?14 — 229. 
 
 Injunction, 215 
 
 Acquiescence precluding equitable relief, 
 216 
 
 Injunction to prevent the continuance of 
 noisy nuisances, 217 
 
 Prevention ol public nuisances, lO. 
 
 Prevention of public nuisance by mdiot- 
 ment, 218 
 
 Nuisances in public highways, /1 9 
 
 Indictment against a corporation, 220 
 
 Proof of dedication of way to the public, 
 ib. 
 
 User of ii way by the public is by no 
 means conclusive of the way being a 
 public way, 221 
 
 Proof of animus dedicandi, ib. 
 
 Occupation roads, 222 
 
 No particular time of enjoyment is neces- 
 sary for evidence of dedication, ib. 
 
 There may be a highway by dedication to 
 the public, where there is no thorough- .- 
 fare, 223 
 
 Who may dedicate — A mere tenant or 
 lessee has no power to throw open land 
 to the public, ib. , 
 
 Commissioners of public works have no 
 power to dedicate, ib. 
 
 Limited dedication, 224 
 
 Gates across a highway, ib. 
 
 There can be no- dedication for a limited 
 time, ib. ■ 
 
 Common highway of necessity, ih. 
 
 Proof of highway by proof -of parish re- 
 pairs, 225 
 
 Indictable obstructions in public tho- 
 roughfares, ib. 
 
 Indictable obstructions in navigable rivers, 
 226 
 
 Eepairs of highways, sga-banks, and 
 sewers, ib. 
 
 Liability to repair ratione clausurce, 227 
 
 Kepair by district highway board, 228 
 
 Ditches of turnpike-roads, ib. 
 
 CHAPTEE V. 
 
 OF INJURIES TO LANDS AND TENEMENTS FROM 'WASTE, 
 AND FIRE, 230—262. 
 
 NEGLIGENCE, 
 
 Section I. — Of injuries to lands and 
 tenements from waste, negligence, and 
 fire, 230—252. 
 
 Waste, 230 
 
 Commissive and permissive waste, 231 
 
 Permissive waste by lessees for terms of 
 years, ib. 
 
 Commissive waste by tenant for terms of 
 years, 232 
 
 Waste by tenant from year to year, 234 • 
 
 Tenant-at-will, ib. 
 
 Tenant for life, 235 
 
 Waste in trees and woods, ib. 
 
 Where timber is decaying, 236 
 
 Waste by taming and reclaiming deer, ib. 
 
 Equitable waste — Where tenant for life 
 liolds without impeachment for waste, 
 ib. 
 
 Tenant in fee simple subject to an exe- 
 cutory devise over, 237 
 
 Lessee for term of years without im- 
 peachment of waste, ib. 
 
 The words " without impeachment of 
 waste," as applied to trustees, ib. , 
 
 Waste by trustees, ib. 
 
 Parties having only an equitable interest 
 ill land, ib. 
 
 The Court of ' Chancery does not in 
 general interfere to prevent permis- 
 sive waste, 238 
 
 Ecclesiastical dilapidatibns, ib. 
 
 Waste by copyholders, 240 
 
 Tenants-in-common, 241 
 
 Waste from the removal of fixtures, ib. 
 
 The right to remove fixtures, 242 
 
 Landlord's fixtures, ib. 
 
 Tenant's fixtures, ib. 
 
 Agricultural tenant's fixtures made re- • 
 movable by statute, 244 
 
 Ornamental fixtures, iJ>. 
 
 Domestic and trade-fixtures, ib. 
 
CONTENTS. 
 
 Fixtures removable by local custom and 
 
 usage, 24o 
 Abandonment of the right to disanuex 
 
 and remove ornamehtal and trade-fix- 
 tures, lb. 
 Inability 6i the tenant to remove fixtures 
 
 after the expiration of the term of 
 
 hiring, ib. 
 Eight of purchasers, or mortgagees, to 
 
 enter and remove fixtures, 246 
 Waste committed by strangers upon land 
 
 demised to a tenant or lessee, ib. 
 Licence to commit waste, 247 
 Kight of reversioners to enter upon lands 
 
 in the possession of their lessees to in- 
 ( spect waste, ib. 
 Injuries to lands and tenements from 
 
 fire, ib. 
 Accidental fires, 249 
 Fire spreading from blast furnaces and 
 
 steam-engines, 250 
 Fire spreadLog from railways to the ad- 
 joining property, 251 
 Fires occasioned by the negligence of 
 
 servants, ib. 
 Injuries from gunpowder and explosive 
 
 substances — -Explosions of gas, 252 
 
 Section II. — Remedies at common law 
 for injuries to lands frflm waste, negli- 
 gence, andfire, 253 — 258. 
 
 The writ of prohibition for waste, 253 
 
 Actions foi; waste, 253" 
 
 Actions by owners of insured premises, 
 ib. 
 
 Parties to actions for waste, ib. 
 
 Declarations for waste, 254 
 
 Declarations upon the custom of the 
 realm for the negligent keeping of a 
 fire, ib. 
 
 Pleas, 255 
 
 Evidence at the trial — Proof on the part 
 of the plaintiff, ib. 
 
 Damages recoverable in respect of the 
 severance and sale of fixtures, 256 
 
 Effect of the recovery of nominal damages, 
 ib. 
 
 Assessment of damages, 257 
 
 Damages recoverable from a tenant who 
 obstructs the reversioner in the exer- 
 cise of his right to enter upon the 
 demised premises to inspect waste, 
 258 
 
 Section III. — Of injunction to prevent 
 
 waste, 258—262. 
 Prevention of commissive or wilful waste 
 
 by injunction, 258 
 Effect of acquiescence in the commission 
 
 of waste, 261 
 Effect of Idches or delay in seeking a 
 
 remedy, ib. 
 Parties entitled to sue in equity, 262 
 
 CHAPTEE VI. 
 
 OF TRESPASS UPON EEAL PEOPERTY — TITLE TO LANDS AND 
 TENEMENTS, 263 — 317. 
 
 Section I. — Of trespasses upon lands and- 
 tenements, 263 — 270. 
 
 What constitutes a trespass, 263 
 
 Abuse of a license or authority rendering 
 
 a party a trespasser ab initio, 264 
 Trespasses by cattle and domestic ani- 
 mals, 265 
 Trespasses from want of fences, and from 
 
 defective fences, 266 
 Who is bound to fence and repair fences, 
 
 ib. 
 Destruction of crops by rabbits and 
 
 pigeons, 267 
 Damage done by intruding dogs, ib. 
 Trespasses where the surface and subsoil 
 
 of land constitute separate freeholds, 
 
 268 
 Forcible en|ry and detainer, ib. 
 Of trespasses upon the soil of highways 
 
 set out, and dedicated to the public by 
 
 private proprietors, 269 
 Of continuing trespasses, 270 
 
 Section II. — Of the title to land, fences, 
 and boundary-waUi, 270 — 287. 
 
 Proof -of possession of land and pernancy 
 ^ of the rents is primd facie evidence of 
 " a seisin in fee of a person possessed, 
 270 
 
 Trial of title in an action of trespass, 271 
 
 Title to realty from • twenty years' pos- 
 session — Limitation of actions for the 
 recovery of realty, ib. 
 
 Accrual of the right on dispossession or 
 discontinuance of possession, ib. 
 
 What is a dispossession or discontinuance 
 of possession causing the time of limi- 
 tation to begin to run, ib. 
 
 Occupation by poor relations and servants 
 — The possession of the servant the 
 possession of the master, 272 
 
 Accrual of the right on death, alienation, 
 forfeiture, &c., 273 
 
 Conversion of defeasible tenancies-at-will 
 into an indefeasible title — Possession 
 of land by a cestui que trust, ib. 
 
 Title of bond-fide purchasers of trust 
 estates, 274 
 
 Acquisition of title by parties who ob- 
 tained possession originally as tenants 
 from year to year, ib. 
 
 Effect of continued wrongful receipt of 
 rent, 275 
 
 Entry upon land, and continued claim, 
 ib. 
 
 Possession of coparceners, joint-tenants, 
 and tenants-in-common, ib. 
 
 Possession of younger brothers or rela- 
 tions, 276 ■ 
 
XIV 
 
 CONTENTS. 
 
 Acknowledgments t>i title, 276 
 
 Eoolesiastioal and eleemosynary corpo- 
 rations, ih. 
 
 Disabilities, ib. 
 
 Preservation of the rights of the land- 
 owner by re-entry and resumption of 
 possession of lands before the expira- 
 tion of the period of limitation, ii. 
 
 Rights of mortgagees, 278 
 
 Title to the church, chancel, and church- 
 yard, ib. 
 
 Title to the sea-shore and bed of navi- 
 gable rivers, 280 
 
 Title to the soil of rivers or fresh- water 
 lakes, 282 
 
 Of the title to waste uninclosed land ad- 
 , joining the sea-shore, ib. 
 
 Hight to the, soil of turnpike-roads and 
 highways, ib. 
 
 Of the right to the soil of accommodation- 
 ways and private roads, 283 
 
 Title to waste lands adjoining public 
 highways, ib. 
 
 Of the right to the soil of towing-paths 
 and the banks of rivers and canals, 
 284 
 
 Eight of property in trees and bushes, 
 285 
 
 Of the ownership of trees standing in 
 boundary-hedges, ib. 
 
 Eight of property in boimdary- walls and 
 fences, ib. 
 
 Of the ownership of ditches and hedges, 
 287 
 
 Title to a pew in a church, ib. 
 
 Sbotion III. — Of aetimis for trespasses 
 upon l/tnds and tenements, 288? — 317. 
 
 Of attions against the hundred for damage 
 done to tenements by rioters, 288 - 
 
 Parties to bejmade plaintiffs in actions 
 .for trespasses — Heirs-at-law, ib. 
 
 Tenants-in-common, ib. 
 
 Tenant and reversioner, ib. 
 
 Parties to be made defendants, 290 
 
 Declaration for trespasses upon land — ■ 
 Venue, 291 
 
 What may be given in evidence under 
 the plea of not gmlty, 292 _ » 
 
 Of pleas denying the plaintiff's title or 
 right of possession, ib. 
 
 Of the plea of liberum tenemmtum, or 
 plea of freehold, ib. 
 
 Keplication — Estoppel, 293 
 
 Of the plea of leave and license — Equit- 
 able defence, ib. 
 
 Special pleas of matters in confession and 
 avoidance — ^Matters of excuse, 294 
 
 Of pleas of justification of trespass, ib. 
 
 Justification of trespass under the powers 
 and provisions of an act of parliament, 
 295 
 
 Pleas justifying the breaking and enter- 
 ing a dwelling-house without warrant, 
 ib. 
 
 Of pleas of justification tinder a prescrip- 
 tive title, ih. 
 
 Pleas of justification in the exercise of a 
 right of way, 296 
 
 Eeplications traversing the P^^^f 'P^J^ 
 right set up by .the defendants pleas. 
 
 Traverse of the enjoyment as of right and 
 without interruption, 298 
 
 ItepKoations traversing the enjoyment of 
 a right of way, 299 
 
 Facts and circumstances which must be 
 specially replied, and cannot be given 
 in evidence under a general traverse of 
 the enjoyment as of right and without 
 interruption for the periods named in 
 the Prescription Aot, ib. 
 
 Eeplication of the existence of a tenancy- 
 for-life during part of the period of 
 enjoyment relied upon by the plea, 
 
 300. 
 
 Eejoinder traversing the fact of the exist- 
 ence of the tenancy-for-life during part 
 of the period of enjoyment, 301 
 
 Evidence at the trial — Proof on the part 
 of the plaintiff, ib. 
 
 Proof under a traverse of the plaintiff's 
 possession, or right of possession, of 
 the locus in quo, ib.' ^ 
 
 Proof by the reversioner, 304 
 
 Heir-at-law, ib. , 
 
 Proof of disseisin and re-entry, ib. 
 
 Evidence for the defence, 305 
 
 Proof of leave and license, 306 
 
 Proof of pleas of justification, 307 ' 
 
 Proof of right of way — Pleas of justifica- 
 tion, ib. 
 
 Proof of deviations extra viam, in the case 
 of private ways, 308 
 
 Proof of a public right of way, 309 
 
 Proof of a right of way over vacant or 
 waste strips of land extending along- 
 side a public thoroughfare, ib. 
 
 Proof of entry on the plaintiff's land for 
 the purpose of depositing thereon the 
 plaintiff's own goods, or removing 
 
 - therefrom the goods of the defendant, 
 ib. 
 
 Of the damages recoverable in actions for 
 trespasses upon real property, 310 
 
 Trespasses on land after notice or warn- 
 ing not to trespass, ib, , 
 
 Damages in respect of trespasses in 
 dwelitng-houses, 311 
 
 Assessment of damages in cases of injury 
 to buildings, ib. 
 
 Assessment of damages for digging and 
 carrying away coal and earth, ib. 
 
 Assessment of damages in respect of tres- 
 passes by diseased cattle, 312 
 
 Assessment of damages where the plain- 
 tiff has no certain or determinate inte- 
 rest in the property, ib. 
 
 Apportionment of damages aa between 
 tenant and reversioner, 313 
 
 Dainages recoverable from one of several 
 co-trespassers, j6. 
 
 Damages recoverable from tenants who 
 hold over wrongfully after the expira 
 tion of a notice to quit, 314 
 
 Trespass for mesne profits, ii. 
 
 Prevention of trespasses by injunction 
 315 > 
 
CONTENTS. 
 
 XV 
 
 CHAPTER VII. 
 
 OF TRESPASS AND CONVEKSION OE CHATTELS — TITLE TO 
 CHATTELS, 318—379. 
 
 Section I. — Of trespass and conversion of 
 chattels, 318—332. 
 
 Trespass upon personalty, 318 
 
 Conversion of chattels, 320 
 
 Wrongful destruction of chattels, 322 
 
 Fixtures severed from the inheritance, 
 323 
 
 Conversion of chattels by purchasers 
 without title, ib. 
 
 When a demand and refusal must be 
 proved in order to establish a conver- 
 sion, ib. 
 
 What is a sufficient demand and refusal, 
 ib. 
 
 Goods not in the possession of the defen- 
 dant at the time of the demand, 325 
 
 Groods found, ib. 
 
 Groods deposited in the hands of pubUo 
 officers, servants, and bailees, ib. 
 
 Fraudulent deposits, 327 
 
 Conversion of goods by railway compa- 
 nies, ib. 
 
 Conversion of bills and notes, ib. 
 
 Conversion of lost or stolen bank-notes or 
 negotiable securities, 328 
 
 Conversion Of chattels by one of several 
 partners, joint-tenants, or tenants-in- 
 common, 329 
 
 Conversion of trust property, 331 
 
 Kight of Uen, ib. 
 
 Sbotion It — Of the title to chattels per- 
 sonal, 332—361 
 
 Title to things altered by a wrong-doer, 
 332 
 
 Title to timber severed from the inheri- 
 tance, 333 
 
 Title to chattels by finding, ib. 
 
 Title to wild birds and animals ferai 
 natures — Eight of the hunter to the 
 game he kiUs, 334 
 
 Title of the fishermen to the fish he har- 
 poons or nets, 335 
 
 Title to chattels by gift, 336 
 
 Title to clothes by hiring and service, ib. 
 
 Of the right to the possession of grants 
 of arms, title-deeds, leases, bonds, and 
 securities, ib. 
 
 Eighl to the possession of documents and 
 securities for money as between trustee 
 and cestui que trust, 337 
 
 The right of property in letters, 'ib. 
 
 Title to chattels by purchase in market 
 overt, ib. 
 
 Title to chattels by private sale and 
 
 transfer, 338 
 - Colourable trajiefers, 340 
 
 Title of innocent purchasers from fraudu- 
 lent vendors, ib. 
 
 Transfers of chattels in the hands of 
 bailees, S41 
 
 Title by delivery order, 342 
 
 Title by purchase from the sheriff, 342 
 
 Title to bills, notes, and cheques, 343 
 
 Title to the property of bankrupts, 344 
 
 Leaseholds — Onerous property, ib. 
 
 Contracts or dealings with the bankrupt 
 without notice, 345 
 
 Title to chattels purchased from a, bank- 
 rupt after an act of bankruptcy, 346 
 
 Transfer of property by bankrupts con- 
 stituting an act of bankruptcy — Frau- 
 dulent preference, ib. 
 
 Executions levied on the property of 
 bankrupts, 347 
 
 Title of trustee in banlcruptcy to property 
 settled or transferred by bankrupt, 
 348 
 
 Title to chattels of which a' bankrupt was 
 reputed owner, at the time of his bank- 
 ruptcy, 349 
 
 Recovery of possession of the goods by 
 the true owner before notice of the act 
 of bankruptcy, ib. 
 
 What things are comprehended under the 
 words " goods and chattels," 350 
 
 What possession is within the statutes, 
 ib. 
 
 Reputation of ownership, 351 
 
 Things sold by the bankrupt, and left 
 in his possession — Raw materials of 
 manufacture, 353 
 
 Goods and chattels which have never 
 been the property of the bankrupt, 
 354 ' 
 
 Possession by manufacturers, workmen, 
 and depositaries, 356 
 
 Possession, sale, and disposition of chattels 
 by factors and commission agents for 
 sale, 357 
 
 Non-consent of the true owner, 368 
 
 Possession by a bankrupt cestui que trust, 
 ib. 
 
 Possession by bankrupt trustees, ib. 
 
 Goods in the apparent possession of the 
 bankrupt within the Bills of Sale Act, 
 359 
 
 Title to trust property, 360 
 
 Right of property in things taken and 
 converted after recovery of judgment 
 in an action for the conversion of 
 them, ib. 
 
 Section III. — Bemediesfor the wrongful 
 conversion of chattels, 361 — 379. 
 
 Recaption of goods wrongfully seized or 
 
 stolen, 361 
 Of the plaintiffs in actions of trespass 
 
 and conversion, 362 
 Joinder of joint-owners as plamtiffs — 
 
 Jointrtenants and tenants-in-common 
 
 of chattels, 364 
 Parties to \>e made defendant?, ib. 
 Of the atajdng of proceedings on the de- 
 
\V1 
 
 COK TENTS. 
 
 livery of the chattels to the plaintiff, 
 366 
 
 Ueclarations for a trespass, or for the 
 conversion of chattels, ib. 
 
 What may be given in evidence under the 
 plea of not guilty, 367 
 
 Pleas denying the plaintiff's right of pro- 
 perty in, or his right to the possession 
 of, the chattel, 368 
 
 Pleas of justification, 369 
 
 Evidence at the trial — Proof, by the 
 plaintiff, ib. 
 
 Proof of constructive possession of chat- 
 tels, 370 
 
 Proof of title of trustees of banloTipts, 
 executors, and nominal parties, 371 
 
 Proof of conversion, ib. 
 
 Evidence for the defence, 373 
 
 When the defendant is estopped from 
 disputing the title of the plaintiff, ib. 
 
 Evidence under pleaa of justification, 3/3 
 Of the assessment of damages, »6. ' _ 
 Assessment of damages where the plam- 
 
 tifif has only a limited or doubtful m- 
 
 terest-in the goods, 376 
 In cases between pawnor and pawnee, 
 
 377 . , , .„ 
 
 Damages for the conversion of bills and 
 
 notes, ib. 
 Of the damages recoverable where the 
 
 plaintiff has offered to return the 
 
 goods, . or the defendant_has received 
 
 them back after the commencement of 
 
 the action, ib. 
 Damages, in the nature of interest, over 
 
 and above the value of the goods, 378 
 Special damages, ib. 
 Damages in actions for seizures under the 
 
 Customs' Acts, 379 
 
 CflAPTEE VIII. 
 
 OF TKESPASSES AND INJUEIES FEOM NEGLIGENCE — NEGLIGENT 
 MANAGEMENT OF CHATTELS, 380 — 424. 
 
 SisoMON I. — Of trespasses and injuries 
 from negligence — Negligent management 
 of chattels, 380—408. 
 
 Negligence and inevitable accident, 380 
 
 Negligence of carriers of passengers for 
 hire, 382 , 
 
 When the very occuiTenoe of a railway 
 .accident is primd facie proof of negli- 
 gence, 333 
 
 Accidents at level crossings, 384 
 
 Injuries from secret defects in carriages or 
 race-stands, 385 
 
 Collisions in public thoroughfares — Neg- 
 ligent driving, 386 
 
 Liability of the master for the negligence 
 of his servant, ib. 
 
 Liabilities of owners of carriages let to 
 hire who select and send their own 
 coachmen, 387 
 
 Liabilities of borrowers of carriages for 
 the negligence of their drivers, 388 
 
 Identification of the passenger with his 
 di-iver, ib. 
 
 Negligence of servants in breaking-in and 
 trainirfg hortes, 389 
 
 Collisions in public thoroughfares, ib. 
 
 Collisions between vessels — Compulsory 
 pilotage, 390 
 
 Collisions with foreign ships, 392 
 
 Non-observance of statutory or Admiralty 
 regulations, ib. 
 
 Collisions between vessels^^Limitation of 
 liability, 395 
 
 Negligent navigation causing damage to 
 ovmers of cargoes, ib. 
 
 Duty of master or shipowner as to goods 
 damaged on voyage, 396 
 
 Negligent stowage causing Injury to goods, 
 ib. 
 
 Negligent navigation 'oauBing personal in- 
 jury — Damage to sea-walls, '&c., 397 
 
 Negligence of masters causing injury to 
 their sei-vants, 397 
 
 Injuries to one fellow-servant from the 
 negligence of another fellow-servant, 
 399 
 
 Injuries to volunteers who assist gratui- 
 tously in work of a dangerous natm-e, 
 400 
 
 Contributory negligence on the part of 
 the plaintiff, ib. 
 
 Negligence on the part of the plaintiff 
 forming no impediment to an action for 
 damages, 402 
 
 Injuries from the negligence of skilled 
 workmen and professional men, ib. 
 
 Negligence of attorneys and solicitors, 
 403 
 
 Negligence of barristers, 406 
 
 Negligence of surveyors or valuers, ib. 
 
 Negligence ofi bank managers, 407 ' - 
 
 Negligence of directors of public com- 
 panies, ib. 
 
 Section II.— 0/ actions for negligence — 
 Direct and consequential injwries, A08 — 
 424. 
 
 Actions for compensating the families of 
 persons killed by negligence, 408 
 
 Actions at law, and proceedings in the 
 High Court of Admiralty for negligence. 
 
 Parties to be made plaintiffs, 410 
 Joint and separate rights of action, 411 
 Parties to be made defendants, ib. 
 Contractor and sub-contractor, 413 
 Negligence of servants working under 
 builders, contractors, and sub-contrac- 
 tors, 414 
 Vduntary' and involuntary trespasses— 
 
 Direct and consequential injuries 415 
 Joint and separate liabilities, 416 ' 
 
CONTENTS. 
 
 XVH 
 
 Declarations for injuries from negligence, 
 
 Plea of not guilty, 418 
 
 Evidence at the trial — Proof of negligence, 
 
 ib. 
 Proof of retainer and employment, 420 
 Proof of the ownei-ship of chattels damaged 
 
 by negligence, ib. 
 Evidence for the defence — Questions for 
 
 the jury, ib. 
 Damages recoverable, 421 
 
 Damages not too remote, 422 
 
 Negligent management or navigation of 
 vessels, ib. 
 
 Damages when the plaintiff is insured 
 against loss, or has received full in- 
 demnity under a contract of insurance, 
 ib. 
 
 Damages recoverable by personal repre- 
 sentatives in cases of death from negli- 
 gence, 423 
 
 CHAPTEE IX. 
 
 OF NEGLIGENCE ON THE PAET OF BAILORS AND BAILEES — DETENTION, 
 AND LOSS OF CHATTELS BY BAILEES, 425 — 464. 
 
 General lien by custom of trade — ^Ware- 
 house keepers — 'V^harfingers, 448 
 
 Lien of polioy-brokers, 449 
 
 Extinguishment of lien by abandonment 
 of possession, ib. 
 
 Statutory power of sale in discharge of a 
 right of Hen, 450 
 
 Tender of the debt in extinguishment of 
 the right of lien, ib. 
 
 Detention of goods and chattels, deeds 
 and securities, by one of several joint- 
 owners or tenants-in-common, 451 
 
 Ee-deKvery of chattels to one of several 
 joint-bailors, ib. 
 
 Section II. — Of actions for the negligent 
 management, negligent Iceeping, and un- 
 lawful detaining of goods and chattels, 
 452—464. 
 
 Parties to be made plaintiffi, 452 
 
 Joint and separate rights of action, 454 
 
 Power to compel rival claimants to estab- 
 Ush their title by garnishment and by 
 interpleader, 455 
 
 Declarations against bailees for loss of 
 chattels, 456 
 
 Declarations against bailees for damage 
 to chattels, i6. 
 
 Plea of not guilty, 457 
 
 Plea of non-detinet, ib. 
 
 Pleas of delivery to one of several joint- 
 plaintiffs, 458 
 
 Pleas denying the plaintiff's property, ib. 
 
 Pleas justifying detention under claim of 
 lien, ib. 
 
 Pleas of payment of money into court, 
 459 
 
 Evidence — Proof on the part of the plain- 
 tiff, ib. 
 
 Evidence for the defence, 460 
 
 Proof of abandonment of possession before 
 commencement of action, 461 
 
 Damages recoverable — Orders for delivery 
 of the specific thing detained, 462 
 
 Assessment of value, 463 
 
 Assessment of damages where the whole, 
 or part, of the goods have been delivered 
 up after action, ib. 
 
 Evidence in mitigation of damages, 461 
 
 Section I. — Of negligence on the pa/i-t of 
 bailors and bailees — Detention and loss 
 of chattels by bailees, 425 — 452 
 
 Of bailments of chattels, 425 
 
 Negligence of bailors, 426 
 
 Of the negligent keeping of chattels by 
 
 bailees, ib. 
 Loss of chattels by workmen, 431 
 Theft by servants, ib. 
 Negligent keeping of goods by warehouse- 
 men, wharfingers, and depositaries for 
 
 hire, 432 
 Distinction between robbery and theft, 
 
 ib. 
 Losses occasioned by the negligence of the 
 
 bailor, 433 
 Loss of chattels by whariingers, ib. 
 Loss of cattle — Liabilities of agisters of 
 
 cattle, 434 
 •Deposit of luggage and parcels at railway 
 
 stations, ib. 
 Deposit of goods under a special contract, 
 
 435 
 Loss of goods by parties receiving them 
 
 to be carried, but who are not common 
 
 carriers, ib. 
 Limitation of liability of shipowners, 437 
 Detention of chattels by bailees under a 
 
 claim of lien, ib. 
 Particular liens and general Hens, 438 
 Ordinary lien of workmen and artificers, 
 
 ib. 
 A person cannot set up a right of lien 
 
 which is at variance with the terms or 
 
 conditions, or implied understanding, 
 
 upon which he received the property, 
 
 440 
 Parties against whom a lien may be 
 
 claimed, 441 
 General Ken, 442 
 Lien of factors and brokers, 444 
 Insurance brokers, ib. ' 
 
 Lien of bankers, 445 
 Lien of attorneys and solicitors, ih. 
 .Certificated conveyancers have no lien, 
 
 447 
 Lien of shipmasters, ib. 
 Lien for freight, ib. 
 Lien of consignees, ib. 
 Notices that goods will be held subject to 
 
 a general lien, ji, 
 
Jcvui 
 
 CONTENTS. 
 
 CHAPTEE X. 
 
 0. NEGLIGENCE OE BAILOKS AND ^~^^^^^''-^\^;^''^^^^' ST'"' 
 
 CAKEIEES, COMMON FEKEYMEN, COMMON INN KEEPMS, AND 
 
 LODGING-HOUSE KEEPEBS, 465— bit). 
 
 Section I. — Of negligence and breacJi of 
 duty on the paH of common carriers, 
 465—494 
 Duties and responsibilities of common 
 
 carriers, 465 
 Who may be said to be a common earner, 
 
 467 
 Public profession of railway compames 
 through their time-tables and toll- 
 tables, 468 
 Puty of railway and canal compames to 
 afford reasonable facilities for the car- 
 riage of passengers, merchandise, and 
 chattels, ib. 
 Loss of goods by common carriers, 470 
 ConcealSient of risk by consignors, 472 
 Contributory negligence, 473 
 Inability of the. common carrier to rid 
 himself of the public duties imposed 
 upon him, ib. 
 Statutory protection of common carriers 
 in respect of the carriage of gold and 
 silver, title-deeds, valuables, &c., ib. 
 Of the fixing up of notices required by 
 
 the statute, 474 
 When a declaration of value is a condi- 
 tion precedent to any liability on the 
 part of the common carrier, 475 
 By whom the declaration of value is to 
 be made, and the increased rate of 
 carriage paid, 477 
 Articles to which the statute extends, ib. 
 Losses covered by the statute, 479 
 Loss of goods from theft by the common 
 
 carrier's servants, ib. 
 Inability of railway and canal companies 
 to exonerate themselves from liability 
 for their own neglect, default, or 
 breach of duty by notice, condition, or 
 declaration, 480 
 Signature of notices, conditions, declara- 
 tions, and special contracts, 482 
 What are just and reasonable conditions 
 respecting the receiving, forwarding, 
 and delivering goods, 483 
 Commencement and duration of the lia- 
 bility — Damage or loss of goods in 
 warehouses, 484 
 Delivery of goods at the place of destina- 
 tion, 485 
 Delivery of luggage at railway stations, 
 
 486 
 Acceptance of goods and passengers to be 
 carried beyond the limits of the ordi- 
 nary destination, ib. 
 Loss of passengers' luggage by railway 
 
 companies, 488 
 Loss of merchandise carried as luesacre, 
 489 _ _ SB b . 
 
 Limitation of the liability of shipowners, 
 
 ib. 
 Iflefusal of the consignee to receive the 
 
 goods— Liability of the carrier as bailee, 
 
 489 ■ 
 
 Landing of goods by shipowners where 
 
 the consignee fails to take them away, 
 
 490 
 Lien of common carriers, ib. 
 Railway charges, 492 
 Charges for packed parcels, ib. 
 Passenger fares — Kight of a passenger to 
 ■aUght at intermediate stations, 493 
 Duties and responsibilities of common 
 
 ferrymen, ib. 
 Loss of goods by common ferrymen and 
 
 common hoymen, 494 
 
 Section II. — Negligence of common inn- 
 keepers and lodging-house keepers, 494 — ■ 
 504 
 
 Of the duty of common innkeepers to 
 provide food' and shelter for travellers 
 and wayfarers, 494 
 
 Who may be said to be a common inn- 
 keeper, 495 
 
 Duty of the innkeeper to protect his 
 guest from robbery and theft, 496 
 
 Limitation by statute of the liability of 
 innkeepers, 500 
 
 Losses occasioned by the misconduct of 
 the guest, 501 
 
 Who are guests and travellers, ib. 
 
 Lien of innkeepers, 502 
 
 Detention of the pei-son of the guest, 503 
 
 Liability of lodging-house keepers, ib. 
 
 Section III. — Remedies against common 
 carriers and common innkeepers for ne- 
 gligence and breach of duty, 504—616. 
 
 Summary proceedings against railway and 
 canal companies, 504 
 
 Parties to be made plaintiffs in actions 
 against carriers, ib. 
 
 Parties to be made defendants, 506 
 
 Declarations against a common carrier for 
 refusing to carry, 507 
 
 Declarations against an innlceeper for the 
 loss of chattels deposited within the 
 precincts of the inn, ib. 
 
 Plea of not guilty, 508 
 
 Special pleas, ib. 
 
 Evidence at the trial — Proof of the bail- 
 ment, 509 
 
 Proof of a special contract, 510 
 
 Proof of felony by a carrier's servants, ib. 
 
 Proof of jv^ tertii by a common carrier, ib. 
 
 Damages recoverable, 511 
 
 Loss of, or injury to, chattels from negli- 
 gence, ib. 
 
 Damages in respect of delay in delivery, 
 613 
 
 Injunction against railway companies to 
 enforce comphanoe with the Railway 
 and Canal IVafRc Act, ib. 
 
CONTENTS. 
 
 XIX 
 
 CHAPTER XI. 
 
 OF WRONGFUL DISTRESS— DISTRESS FOE RENT — DISTRESS 
 DAMAGE FEASANT, 517 — 568. 
 
 Section I. — Of unlawful and excessive 
 distresses, 517 — 546. 
 
 Distress for rent in arrear, 617 
 
 When there is no certain ascertained 
 rent there is Ho right to distrain, 519 
 
 Of conditions precedent to, the right ~ to 
 distrain, 521 
 
 Distress for rent payable in advance — 
 Rent when due— Several demises, ih. 
 
 Distress after 'the termination of the term 
 of hiring, 522 
 
 D^tress by agents— Joint tenants — Ten- 
 ants-in-common, &c., 523 
 
 Distress by executors and administrators, 
 525 
 
 Agreements not to distrain, ib. 
 
 Acceptance of a biU or note by way of 
 payment, ib. 
 
 Tender of rent before distress, il>. 
 
 Time, mode, and place of distraining, ib. 
 
 Things not distrainable, 526 
 
 Perishable articles, growing crops, fruit, 
 money, &c., 528 
 
 Property of strangers on the demised 
 preinises in their own possession, ib. 
 
 Property of strangers placed on the de- 
 mised premises, with the leave and 
 license of the landlord, 529 
 
 Materials placed on the demised pre- 
 mises to be manufactured or worked 
 upon, 530 
 
 P.roperty of guests at a common inn can- 
 not be distrained, ib. 
 
 Chattels in the custody of the law are not 
 distrainable, ib. 
 
 Statutory exemption from distress in 
 favour of foreign ambassadors and 
 public companies in liquidation, 531 
 
 Things distrainable — Chattels of traders 
 left on the demised premises in the 
 possession of the tenant, ib. 
 
 Distress of chattels mortgaged by the 
 tenant, 533 
 
 Things distrainable under a license to 
 distrain, ib. 
 . Distress and seizure of things fraudulently 
 removed, 534 
 
 What amounts to a distress for rent, 535 
 
 Abuse of the right to distrain rendering 
 parties trespassers o5 initio, 536 
 
 Of unlawful distress when no rent was 
 in arrear, 537 
 
 Excessive distresses, ib. 
 
 Distress for more rent than is due, 538 
 
 Repeated distresses for the same rent, 539 
 
 Impounding the goods — ^Pound-breach, 
 
 ib. 
 Abandonment of distress, 541 
 
 Statutory power of sale, ib. 
 Tender of rent rendering a sale unlawful, 
 tJ.' 
 
 Parties to whom tender may be made 
 542 
 
 Power of sale of growing crops and things 
 fraudulently removed — Tender before 
 sale, ib. 
 
 Notice of distress, 543 
 
 Appraisement and sale, ib. 
 
 Costs and expenses, 544 
 
 Effect of non-compliance with the sta- 
 tutes authorising the sale, 645 
 
 Keeping the distress without selling, 
 ib. 
 
 Indemnification of bailiffs, 546 
 
 Sectiok II. — Of distress damage feasant, 
 546—551. 
 
 Seizure and impounding of animals and 
 chattels damage feasant, 546 
 
 Eight to distrain animals trespassing and 
 doing damage on unfenced lands adjoin- 
 ing public highways, 547 
 
 What things may be distrained damage 
 feasant, 548 
 
 Distress by railway companies of locomo- 
 tive engiiies damage feasant, 549 
 
 Tender of amends, ib. 
 
 Sale of impounded animals, 560 
 
 Duties and responsibilities of pound- 
 keepers, 551 
 
 Section III. — Remedies for unlawful amd 
 excessive distresses, 551 — 668. 
 
 Replevin of things distrained, 651 
 Replevin in the county court, 553 
 Replevin in the superior courts, 554 
 Actions of replevin of things distrained 
 
 damage feasant, ib. 
 Actions for unlawfully selling impounded 
 
 animals and cattle, ib. 
 Actions for unlawful and excessive dis- 
 tresses, ib. 
 Parties to be made plaintiffs, 555 
 Parties to be made defendants, 556 
 Declarations in replevin, 657 
 Declarations for a wrongful and excessive 
 
 distress, ib. 
 Declarations for distraining and selling 
 
 goods vrithout notice of distress, or with- 
 ■ out appraisement, or for not selling for 
 
 the best price, ib. 
 Pleas in replevin — Non cepit, ib. 
 Avowries in replevin, 568 
 Avowries for double rent, 559 
 Avowries by joint-tenants, coparceners, 
 
 and tenants-in-common, ib. 
 Pleas in bar to an avowry — Non tenuit— 
 
 Riens in arrere, ib. 
 Payment of money into court, 560 
 Of the plea of not guilty " by statute" la 
 
x* 
 
 eONTEN*S. 
 
 actions of trespass, or upon the case for 
 an unlawful distress, 560 
 
 Pleas justifying an entry upon land for 
 the purpose of- distraining goodfe fraudu- 
 lently removed, 561 
 
 Pleas justifying the seizure of animals 
 damage feasantj ib. 
 
 Pleas of a recovery of the goods in an 
 ac,tion of replevin, ib. 
 
 Evidence at the trial — Proof of distress, 
 562 
 
 Proof of no rent being due, and of unlaw- 
 ful and excessive distresses, ib. 
 
 Proof of material averments in the decla- 
 ration, 563 
 
 Proof that the defendant ordered or autho- 
 rise:! the distress, 563 * 
 
 When proof of special damage is neces- 
 sary, ib. , ■ zBA 
 
 Proof of waiver of right of action, oo4 
 
 Proof of tenancy, as between plaintiff and 
 defendant, ib. 
 
 Proof of the nature and terms of a ten- 
 ancy, 565 
 
 Damages recoverable — Double value, ib. 
 
 Damages recoverable where the entry upou 
 the premises was effected in an unlawful 
 manner, 566 
 
 Recovery of special damage, ib. 
 
 CHAPTER XII. 
 
 6f assault and bat1:ery, and wrongful imprisonment, 569—610 
 
 Section I. — Of assault and battery, and 
 mayhem, 569 — 575. 
 
 What constitutes an assault, 569 
 
 Assaults resulting from acts of negligence, 
 570 
 
 Assaults by constables — Handcuffing un- 
 convicted prisoners, 571 
 
 Assault aud battery, ib. 
 
 Mayhem and wounding, ib. 
 
 Assault and battery in self-defence, 572 
 
 Assault in defence of the possession of a 
 house, or close, or of property, ib. 
 
 Assaidt in resistance of a forcible entry, 
 or to prevent a seizure of chattels, 573 
 
 Kesistance to a forcible entry by a land- 
 lord, ib. 
 
 Assaults in preservation of the publit 
 peace, 574 
 
 Battery and wounding in self-defence, or 
 in defence of the possession of tene- 
 ments or chattels, ili. 
 
 Section II. — Of false imprisonment, 
 575—586. 
 
 False imprisonment, 575 
 Constructive imprisonment, ib. 
 Imprisonment by order of a judge or judi- 
 cial officer, 576 
 Arrest in execution of warrants of justices, 
 
 ib. 
 Arrest by constables without warrant, ib. 
 Arrest by private persons without wairant, 
 
 578 
 Arrest for a misdemeanour, ib. 
 Arrest of the wrong party, 579 
 Arrest for malicious injuries to property, 
 
 ib. 
 Wilful and malicious trespass, ib. 
 Arrest of persons Committing indictable 
 
 offences in the night, 680 
 Arrest for an assault and breach of the 
 
 peace, ib. 
 Arrest during the continuance of an affrav 
 
 ib. •'' 
 
 What amounts- to a breach of the nsaoe 
 
 581 f > 
 
 Arrest of persons disturbing divine service, 
 582 
 
 Arrest of vagrants and persons found 
 committing acts of public indecency, ib. 
 
 Arrest under the Merchant Shipping Act, 
 ib. 
 
 Arrest of a principal by his bail, ib. 
 
 Arrest for offences committed within the 
 limits of the Metropolitan Police dis- 
 trict, 583 
 
 Arrest by servants of railway companies, 
 584 
 
 Detention of recruits and deserters, 585 
 
 Imprisonment of dangerous lunatics, ib. 
 
 Section III.— 0/ actions for an assavlt 
 and battery, and for faUe jtmprisonirwiit, 
 586—610. 
 
 Statutory protection to constables and 
 their assistants from vexatious actions, 
 586 _ ■ 
 
 Protective clauses in favour of parties act- 
 ing in the execution of acts of parlia- 
 ment, 588 
 
 Limitation of actions, and notice of action, 
 589 
 
 Notice of action to persons acting in exe- 
 cution of the Larceny Act, 591 
 
 Notice of action to persons acting in exe- 
 cution of the Metropolitan Police Act, 
 .592 
 
 Persons entitled to the benefit of the pro- 
 tection, ib. 
 
 Length of notice of action, ib. 
 
 Statement of the cause of action, ib. 
 
 Tender of amends, 593 
 
 Payment of money into court, jJ, 
 
 Parties to be made plaintiffs— Master and 
 servant, 594 
 
 Of the parties to be made defendants, ib. 
 
 Liability of a corporation to an action for 
 an assavdt, 596 
 
 Subsequent ratification of wrongful im- 
 prisonment rendering the ratifying party 
 responsible for the wrong, 597 
 
 Declarations for an assault and false im- 
 prisonment, ih. 
 
CONTENTS, 
 
 XXI 
 
 What may be given in evidence under 
 
 the plea of not guilty, 598 
 Not guilty by statute, 699 
 Pleas setting forth a previous hearing and 
 
 dismissal by magistoates, 600 
 Pleas of justification, 601 
 Defence of neighbours and friends, 602 
 Moderate correction by parents, aohool- 
 
 masters, masters of ships, &c., ib. 
 Pleas of justification of imprisonment, 
 
 603 
 
 Evidence at the trial — Proof of an assault, 
 605 
 
 Proof of an arrest and imprisonment, ib. 
 
 Evidence for the defence, 606 
 
 Damages recoverable, 607 
 
 Damages where there are several co-tres- 
 passers, 608 
 
 Prospective damages, 609 
 
 Special damages in actions for false im- 
 prisonlnent, ib. 
 
 Evidence in mitigation of damages, 610 
 
 CHAPTEE XIII. 
 
 OF MALICIOUS CONSPIRACY, MALICIOUS PROSECUTION AND ARREST- 
 MALICIOUS ABUSE OF LEGAL PROCESS, 611 — 634. 
 
 Section I. — Of malietaus conspiracy, 
 maliciotis prosecution and arrest— Mali- 
 cious abuse of legal process, 611 — 626 
 
 Malicious conspiracy, 611 
 
 Malicious exhibition of articles of the peace 
 against another, 613 
 
 Malicious prosecution, ib. 
 
 What is evidence of a want of reasonable 
 and probable cause, and of malice, 614 
 
 Prosecution by persons who manifest a 
 consciousness of the innocence of the 
 accused, 615 
 
 Prosecutions under the advice of counsel, 
 617 
 
 Malicious complaints before magistrates 
 • — Maliciously causing a justice's war- 
 rant to be-issued against the plaintiflf, 
 618 
 
 Continuance by defendant of proceedings 
 commenced without his knowledge, 
 620 
 
 Effect of the complaint or information 
 before the magistrate being followed 
 up by a conviction of the plaintiff, 
 
 a. 
 
 Maliciously causing a search-warrant to 
 
 issue, ib. 
 Malicious indictment, 621 
 Malicious prosecution by court-martial, 
 
 ib. 
 MaUcious assertion of a legal right, ib. 
 Malicious and unfounded actions, ih. 
 Maliciously putting the' process of the 
 
 law in motion in the name of a pauper 
 
 or insolvent, 622 
 
 Maliciously issuing execution for a larger 
 
 sum than is due upon a judgment, 622 
 Maliciously causing an extent to issue, 
 
 6'23 
 Malicious proceedings in bankruptcy, ib. 
 Malicious abuse of legal process, 624 
 Malicious detention of judgment-debtors 
 
 af ber tender of the debt and costs, ib. 
 Malicious arrest, 625 
 What amounts to a malicious arrest — 
 
 Proof of actual custody, 626 
 
 Section II. — Of cictionsfor malicious ar- 
 rest and malicious prosecution, 626 — 634 
 
 Parties to be made defendants, 626 
 
 Pendency of a rule for a criminal infor- 
 mation against the defendant, 627 
 
 Declarations for a malicious prosecution, 
 628 
 
 Of the plea of not guilty in actions for a 
 malicious arrest and- malicious prose- 
 cution, ib. 
 
 Pleas of justification, ib. 
 
 Evidence at the trial— Proof on the part 
 of the plaintiff'— Malicious arrest, or 
 prosecution, ib. 
 
 Proof of malicious informations and com- 
 plaints before magistrates, 630 
 
 Proof by certified copy of the record of 
 the prosecution and acquittal, 631 
 
 Proof of malice and of want of reasonable 
 and probable cause, ib. 
 
 Proof on the part of the defendant, 633 
 
 Of the damages recoverable in actions 
 for a malicious prosecution, ib. 
 
XXll 
 
 CONTENTS, 
 
 CHAPTEE XrV. 
 
 OF TRESPASS IN EXECUTION OF VOID OR IUREGULA.E PROCESS- 
 RESPONSIBILITY OF JUDGES AND MINISTERIAL OFFICERS OF 
 JUSTICE, AND PERSONS SETTING THEM 
 IN MOTION, 635—681. 
 
 Section I. — Of trespasses in eocecution of 
 void or irregular process — Sesponsibility 
 of judges and wdnislerial officers of 
 courts of justice, and persons setting 
 them in motion, 635 — 6^3. 
 
 Exemption of judges from actions in re- 
 spect of things done in the exercise of 
 their judicial functions, 635 
 
 Arbitrators, 636 
 
 Conditions precedent to the existence of 
 jurisdiction on the part of a judge, 637 
 
 Disqualification of judges on account of 
 interest, 638 
 
 Exemption of judges from actions where 
 they had a p^'imA facie jurisdiction, and 
 no objection is taken to their jurisdic- 
 tion, ib. 
 
 Orders of commitment by county-court 
 judges, 639 
 
 Commitments for contempt, 640 
 
 Statutory forms of commitment by county- 
 court judges, ib. 
 
 Who are judges and judicial officers, 641 
 'Delegation of judicial functions, ih. 
 
 liemoval of the proceedings of inferior 
 courts for a revision by a superior tri- 
 bunal, 642 
 
 Proceedings against county-court judges 
 to compel them to act in particular 
 cases, 643 
 
 Proceedings of courts-martiali ib. 
 
 Section II. — Of the duties and respon- 
 sibilities of tninislerial officers of courts 
 of justice, 643—666. 
 
 Illegal assumption of the judicial office 
 
 by ministerial officers, 643 
 Neglect of duty by ministerial officers of 
 
 courts of justice, 644 
 Duties and responsibilities of the sheriff 
 
 and his officers — Execution of writs, 
 
 ib. 
 Priority of writs of execution, 645 
 Trespasses by the sheriff and his officers, 
 
 646 
 Execution of writs by special bailiffs, 
 
 647 
 Trespasses_ in dwelling-houses by sheriffs ' 
 
 and their officers under colour of the 
 
 execution of legal process, ib. 
 Of the breaking open the outer door of a 
 
 dwelling-house in the execution of legal 
 
 process, 648 
 What amounts to a breaking of the outer 
 
 door, 649 
 Of the breaking open of inner doors in 
 
 the execution of a writ, ib. 
 Illegality of arrest or seizure of goods 
 
 effected through the medium of an act 
 
 of trespass, 649 
 When the sheriff becomes a trespasser by 
 
 remaining on premises an unreasonable 
 
 time, 650 
 Seizure of the'goods of the wrong person, 
 
 ib. 
 Seizure by sheriffs and their officers of 
 
 privileged or protected goods, 652 
 Power of the sheriff to compel rival 
 
 claimants to interplead and establish 
 
 their title, 65S 
 Claims of landlords on sheriffs for rent in 
 
 aiTear, 656 
 Sale by sheriffs of goods taken in execu- 
 tion, 657 
 Capture of the wrong person, ib. 
 Arrest of the right person under a wrong 
 
 name, 658 
 Illegal arrest on Sundays, ib. 
 Incurability of a wrongfiil imprisonment 
 
 — ^Arrest imder one of several writs, 
 
 ib. 
 Arrest of privileged persons, 659 
 Countermand of writs and warrants, ii. 
 Liability of the sheriff for an escape, 
 
 660 
 JReoapture upon fresh pursuit, 661 
 Discharge of debtors taken in execution, 
 
 ib. 
 Arrest of the person and seizure of goods 
 
 under void or irregulai- process, ib. 
 Exemption of sheriffs and others from 
 
 responsibility when the injury has been 
 
 brought about by the misrepresentation 
 
 of the plaintiff, '662 
 False returns to writs of execution, 663 
 Extortion by sheriffs and their officers, 
 
 ib. 
 Duties and responsibilities of the high- 
 bailiff, bailiffs, and registrars of the 
 
 county-court, 664 
 Liability of ministerial officers where the 
 
 court has no jurisdiction, and no au- 
 thority to issue the process, ib. 
 Duty of bailiffs of the county court to 
 
 satisfy the landlord's claim for rent, 
 
 665 
 Liabilities of gaolers, ib. 
 Liability of the messenger of the Court of 
 
 Bankruptcy, ^66 
 
 Section III. — Of actions against judges, 
 sheriffs, and ministerial officers and 
 their assistants, and parties setting them 
 in motion, 667 — 681. 
 
 Actions against county-court ludcps— " 
 Notice of action, 667 J S " ; 
 
CONTENTS. 
 
 XXUI 
 
 Ramediea against sherif& and offioera for 
 an escape, 667 
 
 Actions to recover money ia the hands of 
 the sheriff, ib. 
 
 Actions against high-bailiflfs of county- 
 courts and their assistants, 668 
 
 Statutory protection to high bailiffs, and 
 persons acting by their order, or in their 
 aid, in the execution of county- court 
 
 ' warrants, ib. 
 
 Of the staying of proceedings in actions 
 against high-bailiffs and officers of the 
 county-court, 669 
 
 Plaintiffs in actions against sherifife, 670 
 
 Of the defendants in actions for wrongs 
 done under colour of legal process, ib. 
 
 Declaration against a sheriff for not exe- 
 cuting the Queen's writ, or for an 
 escape, 672 
 
 Declarations against sheriffs for removing 
 goods taken in execution without pay- 
 ing rent due to the landlord, ib. 
 
 Declarations against, sheriffs for treble 
 damages for extortion, ib. 
 
 The plea of not guilty, 673 
 
 Pleas of justification, ib. 
 
 Justification in the execution of legal 
 process, ib. 
 
 Keplications, 674 
 
 Evidence at the trial — Proof on the part 
 of the plaintiff, 675 
 
 Proof of judgments, writs, and : process 
 
 from the superior coixrts, 675 
 Delivery of the writ to the sheriff to be 
 
 executed, ib. 
 Proof of the sheriff's having directed or 
 
 authorised the commission of the 
 
 wrongful act, ib. 
 Proof of false return to a writ, 677 
 When admissions by an under-sheriff and 
 
 bailiffs are evidence against the sheriff, 
 
 ib. 
 Proof of the removal of gooda taken in 
 
 execution without paying the land- 
 lord's rent, ib. 
 Evidence of the process under which the 
 
 sheriff acted, ib. 
 Evidence for the defence — Proof of rent 
 
 being in arrear at the time of the levy, 
 
 ib. 
 Proof of proceedings in the county-court, 
 
 678 
 Damages recoverable in actions against 
 
 sheriffs and officers — Negligence and 
 
 breach of duty, ib. 
 Assessment of damages in actions for an 
 
 escape, 680 
 Special damages, 681 
 Exemplary damages, ib. 
 Recovery of treble damages for extortion, 
 
 CHAPTEE XV. 
 
 OF TRESPASSES AND INJUKIES COMMITTED IN EXECUTION OF WAEllANTS 
 
 AND ORDERS OF JUSTICES — RESPONSIBILITY OF MAGISTRATES, 
 
 CONSTABLES, THEIR ASSISTANTS, AND PERSONS 
 
 SETTING THEM IN MOTION, 682 — 733. 
 
 Section I. — Of 
 committed in the execution of loan-ants 
 and orders of justices, 682 — 720. 
 
 Of the jurisdiction of justices of the 
 
 peace, 682 
 Jurisdiction of justices residing or being 
 
 out of the county for which they are 
 
 justices, 684 
 Jurisdiction of borough justices under the 
 
 Municipal Corporation Act, 685 
 The power of summary conviction, ib. 
 Liability of justices for misconduct in 
 
 the exercise of their judicial functions, 
 
 686 
 Of the granting of search-warrants by 
 
 magistrates, ib. 
 LiabiBty of justices for acts done by them 
 
 without jurisdiction, or in excess of 
 
 their jurisdiction, 687 
 Exemption of justices from actions in 
 
 cases where they had a primd fade 
 
 jurisdiction, and no objection was 
 
 taken to their jurisdiction until after 
 
 they had adjudicated, ib. 
 
 "Wrongful proceedings by justices inte- 
 rested in the matter before them, 688 
 
 Wrongful commitment and imprison- 
 ment by justices, 690 
 
 Acts of a justice of the peace who has 
 not duly qualified, 691 
 
 Of the foi-m of commitment, ib. 
 
 Commitment by justices of accused per- 
 sons for trial — ^Examination of the 
 witnesses, 692 
 
 Effect of the depositions being taken in 
 the absence of the magistrate who acta 
 upon them, ib. 
 
 Convictions by magistrates on their own 
 view, 693 
 
 Summary convictions founded upon in- 
 formations, ib. 
 
 Statutory provisions respecting summary 
 convictions .and orders of justices, 694 
 
 Requisites of the information or com- 
 plaint, ib. 
 
 Of the time within which the information 
 or eomplaiat must be laid, 695 if 
 
 Proceedings upon information or com- 
 plaint, ib. 
 
XXIV 
 
 CONTENTS. 
 
 Unlawful proceedings of justices when 
 there is no information or complaint 
 before theni, 697 
 When a, complaint once made cannot be 
 
 settled and withdrawn, ib. 
 Convictions by justices in excess of their 
 
 jurisdiction, ib. > 
 
 Ouster of the jurisdiction of justices by 
 
 setting up a claim of title, 698 
 To what extent a justice of the peace is 
 protected in the exercise of a discre- 
 tionary power, 700 
 Wrongful ministerial acts, 701 
 Convictions upon by-laws, 702 
 Of the drawing up of convictions and 
 
 orders, 703 
 Disclosure of the authority and jurisdic- 
 tion of justices on the face of their 
 
 proceedings, ib. 
 Description of the offence or subjeot- 
 • matter of complaint, 704 
 Of singling out the offender, ib. 
 Description of the locality of the offence, 
 
 705 
 Orders and adjudications by justices, 706 
 Statutory forms of convictions and orders, 
 
 707. _ 
 Immateriality of mere surplusage, ib. 
 Effect of the conviction, 708 
 Warrants of distress and commitment; 
 
 ib. 
 ■ Exemption of justices from actions in 
 
 respect of warrants of distress for 
 
 poor-rate, 709 
 Warrants of distress and commitment m 
 
 ease of non-payment of- costs by an 
 
 informer or complainant, 710 
 Service of a copy of the minute of the 
 
 order before the issue of a warrant of 
 
 commitment or distress, ib. 
 The power of appeal to the court of 
 
 quarter sessions against summary con- 
 victions and orders of justices, ib. 
 Excess of jurisdiction may be made a 
 
 ground of appeal, 711 
 Of .1!he execution of convictions and 
 
 orders after notice of appeal, ib. 
 Exemption of justices from liability 
 
 where a defective conviction or order 
 
 has been confirmed upon appeal, 
 
 712 
 Statement of a case to the superior courts 
 
 by way of appeal from decisions of 
 
 justices, ib. 
 Of the quashing of convictions and orders 
 
 — Bemoval of orders and convictions 
 
 by certiorari, 713 
 Decisions which are final, and cannot be 
 
 reviewed by certiorari or mandamus, 
 
 714 _ '^ 
 
 Commitment for contempt, ib. 
 When the writ of certiorari is not taken 
 
 away by express statutory prohibition, 
 
 ib. 
 Proof by affidavit of the facts and cir- 
 cumstances calling for the interference 
 
 of the superior court, 716 
 Amendment of orders or judgments of 
 
 justices on return to a certiorari, 717 
 Of testing the legality of a commitment 
 
 by writ of habeas corpus, 718 ^ -^ 
 
 Proceedings against justices to compel 
 them to act in particular oases, 719 
 
 Right of county justices to order the ex- 
 pense of county litigation to be de- 
 frayed out of the county funds, i6. 
 
 Of the power of justices to give costs, 720 
 
 Seotiok II. — Exemption of constables and 
 tlieir assistants from liability when act- 
 ing in the execution of warrants and 
 orders of magistrates, 720 — 722 
 
 Exemption of constables, officers, and 
 their assistants from liability for acts 
 done by them in obedience to a.war- 
 rant of justices, 720 
 
 Excess of authority on the part of con- 
 stables and officers — Handcuffing un- 
 convicted prisoners, 722 
 
 Abuse of a search-warrant, ib. 
 
 Section III. — Bemedies for wrongs done 
 under colour of conmctions and wa/rrants 
 of justices, 722—733 
 
 Replevin of chattels distrained under 
 warrant of justices, 722 
 
 Of actions against justices, 723 
 
 When the action is brought in respect of 
 things done without jurisdiction, or in 
 excess of jurisdiction, 724 
 
 When the action is brought for a mali- 
 cious conviction, commitment, or dis- 
 tress, or a malicious abuse by a magis- 
 trate of the functions of his office, ih. 
 
 Effect of the existence of a power of 
 appeal on the right to bring an action, 
 725 
 
 Objections by justices to actions against 
 them in the county court, ib. 
 
 Of setting ^de certain actions brought 
 against justices of the peace, ib. 
 
 Limitation of actions against justices of 
 the peace, 726 
 
 Of notice of action against justices, ib. 
 
 Statement of the cause of action on the 
 face of the notice, 728 
 
 Tender of amends before action, ib. 
 
 Of the computation of the month's notice, 
 and of the time for tendering amends, 
 ib. 
 
 Of the statutory protection to constables, 
 officers, and their assistants from vexa- 
 tious actions, 729 
 
 Parties to be made defendants — Wrong- 
 ful convictions and orders by one jus- 
 tice acted upon by another justice, lb. 
 
 Liability of persons who set justices and 
 constables in motion, 46. 
 
 Evidence at the trial of actions against 
 justices, 730 
 
 Proof of malice and of the want of reason- 
 able and probable cause, ib. 
 
 Evidence at the trial of actions against 
 constables and officers — Proof of the 
 injury having been dope in execution 
 of a warrant of justices, 731 
 
 Proof of warrant of justices— Secondary 
 evidence of the contents of a warrant, 
 
CONTENTS. 
 
 XXV 
 
 Proof by the plaintiff of his demand of 
 ^the p3ru3al and copy of ths warrant, 
 . 732 
 Proof by the defendant of the produotiou 
 
 of the warrant — Production and per- 
 usal of a copy of the warrant, 732 
 Damiges recoverable in actions against 
 justices of the peace, 733 
 
 CHAPTER XVI. 
 
 OF ISTJURIES FilOM THE EXERCISE OF STATUTOEY POWERS — STATUTORY 
 OOSIPEN'SATION FOR INJU EIES AUTHORISED BY 
 STATUTE, 7 34 — 773. ' 
 
 Section I. — Of inju/i'ies from the exercise 
 of statutory powers, 734 — 747. 
 
 Exemption of persons from personal lia- 
 bility in respect of things done under 
 statutory authority, 734 
 Injuries from the negligent execution of 
 
 statutory powers, 736 
 Nuisances from the negligent working of 
 railways, 737 
 
 Duties and responsibilities of boards of 
 public works, trustees, and commis- 
 sioners — Contractors and workmen 
 acting in the exercise of statutory 
 powers, 738 
 
 Surveyors of highways and county 
 bridges, 740 
 
 Effect of clauses in particular statutes 
 exonerating persons from all personal 
 UabUity in respect of things done in 
 the bo'ndjide execution of the statute, 
 741 
 
 Right of commissioners, trustees, and 
 public officers to indemnify themselves 
 in respect of the costs and expenses 
 they incur out of the public funds 
 they are authorised to adroinister, 742 
 
 When expenses incurred through blunders 
 or negligence may be charged upon a 
 public or trust-fund, 743 
 
 Creation of nuisances in the hand fde 
 exercise of statutory powers, ib. 
 
 Pollution of streams and injuries to docks, 
 wharfs, towing-paths, &Ci, in the exer- 
 cise of statutory powers, 744 
 
 Creation Of nuisances in the exercise of 
 the statutory powers contained in the 
 Towns Improvement Clauses Act, 745 
 
 The Metropolis Local Management Act, 
 746 
 
 Of the power to take lands and streams 
 for public purposes, ib. 
 
 Licences to enter upon land authorised 
 to be taken for pubUc works, 747 
 
 Seizure and detention of goods by custom- 
 house officers acting in the execution of 
 statutory powers, {b. 
 
 Section II. — Of statutory remedies for 
 the recovery of compensation for injuries 
 authorised by statute, 748 — 762. 
 
 Injuries establishing a right to statutory 
 
 compensation, 748 
 Of ascertaining the amount of statutory 
 
 damage bj arbitration, 749 
 
 Jurisdiction of the arbitrator, 750 
 
 Damages recoverable before justices of 
 the peace, and not by action, ib. 
 
 Of the statutory remedy for the recovery 
 of compensation under the provisions 
 of the Lands Clauses and Railway 
 C lauses Consolidation Acts, 751 
 
 Of statutory compensation to tenants 
 and occupiers of lands taken for public 
 works, 754 
 
 Notices by claimants of the nature and 
 extent of the injury sustained, and of 
 the amount of compensation required, 
 755 
 
 Assessment of damages, 756 
 
 Future damages, ib. 
 
 Assessment of damages to which the 
 claimant is not legally entitled — Re- , 
 moval of the inquisition by certiorari, 
 758 
 
 Recovery of the amount of compensation 
 assessed by a jury, ib. 
 
 Declaration in actions for railway com- 
 pensations, ib. 
 
 Pleadings — Defences — Traverse of the 
 injury to the land, 759 
 
 Remedy for subsequent unforeseen 
 damages, 760 
 
 Remedy in cases of severance, 761 
 
 Compulsory purchase of house by railway 
 company, 762 
 
 Section III. — Remedies by action and by 
 injunction in respect af injuries from 
 the negligent doing of things authorised 
 to be done by statute, 763 — 773. 
 
 Limitation of actions in respect of things 
 
 done under local and personal statutes. 
 
 763 
 Accrual of the cause of action and com- 
 mencement of the period of limitation. 
 
 ib. . ' 
 
 Of notice of action, 764 
 Notice of action to gas companies and 
 
 trading corporations and their officers 
 
 ib. 
 Nbtice of action to toll and tax-collectors 
 
 and revenue officers, 765 
 Notice of action against contractors, &c, 
 
 under local boards of health, 766 
 Notice of action against surveyors and 
 
 persons acting ^in execution of the 
 
 highway acts, ib. 
 Tender of amends before action, 767 
 
XXVI 
 
 CONTENTS. 
 
 Parties to bs made defendants, 767 
 Pleadings — Plea of not guilty, 768 
 Plea of tender of amends before action, 
 
 769 
 Pleas of justification under the authority 
 
 of an Act of Parliament, ih. 
 Evidence at the trial — Proof of notice of 
 
 action, ib. 
 Power of the Court of Chancery to grant 
 
 an injunction to prevent unnecessary 
 
 injury from the execution of statutory 
 powers, 769 _ 
 
 Injunction to restrain nuisances created 
 by public bodies acting in the exercise 
 of statutory powers, 770 
 
 Injunction to prevent misuse by com- 
 panies and pubho bodies of land ac- 
 quired by them under statutory autho- 
 rity, 771 
 
 CHAPTEE XVII. 
 
 OF LIBEL AND SLANDER, 774—833. 
 
 Section I. — Of libel and written slander, 
 774—796. 
 
 Of the distinction between slander by 
 word of mouth and slander in a pub- 
 lished writing, 774 
 
 Oral slander rendered actionable by being 
 printed and published — Exemption of 
 the author and liability of the pub- 
 lisher, 77S 
 
 What writings are libellous and action- 
 able, 776 
 
 Of malice, 778 ^ 
 
 Privileged writings and communications, 
 779 
 
 Defamatory writings in courts of justice, 
 780 
 
 Defainatory petitions to the Queen, to 
 Parliament, or to ministers or officers 
 of state, respecting the conduct of 
 magistrates and officers, 781 
 
 Criminatory communications by public 
 officers acting in discharge of a public 
 duty, 782 
 
 Criminatory pastoral letters, and printed 
 communications from clergymen to 
 their parishioners, 783 
 
 Defamatory letters respecting clergymen, 
 784 
 
 Privileged confidential communications 
 between relations respecting the cha- 
 racter of a person proposing marriage, 
 ib. 
 
 Privileged confidential communications 
 between friends to prevent an injury; 
 785 
 
 Privileged communications by persons 
 having a pecuniary interest involved 
 in the matter of the communication, 
 786 
 
 Eeckless and inconsiderate commimica- 
 tions, 787 
 
 Disclosures made bond fide in the course 
 of an investigation set on foot by the 
 plaintiff himself, ib. 
 
 Communications between subscribers to 
 charities, 788 
 
 Privileged communications respecting the 
 character of servants, ib. 
 
 Comments in excess aof the nrivileee 
 790 1 f s . 
 
 Of the effect of addressing privileged 
 
 communications to a wrong party by 
 mistake, 791 
 
 Beports of trials containing defamatory 
 matter, ib. 
 
 Publications of ex parte statements, and 
 of proceedings preliminary to a trial, 
 792 
 
 PubKoafion of speeches and proceedings 
 in parliament, 793 
 
 Defamatory reports of proceedings at 
 vestries and public meetings, ib. 
 
 Reviews and criticisms -in public papers, 
 794 
 
 Criticisms by one public journalist upon 
 another, ib. 
 
 Criticisms upon handbills and advertise- 
 ments, 795 
 
 Criticisms upon sermons and clergymen, 
 ib. 
 
 Comments upon the public character of 
 public men, 796 
 
 Disparaging criticisms by one trades- 
 man upon the goods of a rival trades- 
 man, ib. 
 
 Section II. — Of verbal slander, 797 — 
 ■810, 
 
 When defamatory words are actionable, 
 797 
 
 Defamatory words not actionable without 
 special damage, ib. 
 
 Defamatory words actionable per se with- 
 out proof of any special damage, 798 
 
 In what cases actionable words are ren- 
 dered not actionable by precedent or 
 subsequent words, ib. 
 
 Defamatory words imputing to the plain- 
 tiff that he is afflicted with a contagious 
 disorder, 799 
 
 Defamatory words concerning tradesmen 
 and professional men, ib. 
 
 Words imputing misconduct or gross 
 ignorance or incapacity to professional 
 men, 800 
 
 Words imputing official misconduct to a 
 person in an office of profit or trust, 
 801 
 
 Words rendered actionable by reason of 
 
 - special damage, 802 . 
 
 Slanderous denunciations from the pulpit 
 
CONTENTS. 
 
 XXVU 
 
 causing loss of oustom, situation, or 
 employment, 802 
 
 Efifeot of the dismissal of a slandered 
 servant, being a wrongful dismissal on 
 the part of the master, 803 
 
 Effect of the slander being disbelieved by 
 the master, ib. 
 
 Special damage, not being the immediate 
 and natural consequence of the words 
 spoken — Spont^iueous and unauthor- 
 ised repetition of verbal slander, 804 
 
 Spacial damage directly resulting from 
 the repetition of oral slander, 805 
 
 Circumstances rebutting the presumption 
 of malice, ib. ' 
 
 Privileged communications — Proof of 
 malice, ib. 
 
 Privileged charges of felony made bond 
 fide, with reasonable grounds for sus- 
 picion, 806 
 
 Privileged statements and comments by 
 advocates in the course of judicial pro- 
 ceedings, or in the conduct of a cause, 
 ib. 
 
 Defamatory statements by .& party in 
 open court conducting his own cause, 
 807 
 
 Privileged comments and charges by 
 judges and magistrates in the exercise 
 of the duties of their office, ib. 
 
 Of the inteipretation and apphoation of 
 the words used, 808 
 
 Slander of title, ib. 
 
 Section III. — ■ Of actions for libel and 
 slander, 810—833. 
 
 Consolidation of actions for the same 
 
 libel, 810 
 Parties to be made plaintiffs, ib. 
 Parties to be made defendants, 811 
 Declarations for libel and slander, ib. 
 Of the innuendo or defamatory sense 
 
 attributed to the writing or words on 
 
 the face of the declaration, 812 
 Statement of special damage in actions 
 
 for verbal slander, 813 
 What may be given in evidence under 
 
 the plea of not guilty, 814 
 Plea that the Hbel was inserted without 
 
 miiUee or gross negligence, and that 
 
 an apology was published — Payment 
 
 of money into court, 815 
 
 Pleas of justification, 816 
 
 Evidence for the plaintiff — Printed pla- 
 cards — Proof of publication, 817 
 
 Publication in newspapers, 819 
 
 Proprietorship of newspapers containing 
 libels, ib. 
 
 Proof of the utterance of the words 
 charged in actions for verbal slander, 
 ib. 
 
 Proof of the singing of libellous songs, 
 820 
 
 Application of the libel to the plaintiff, 
 ib. 
 
 Proof of the defamatory . sense of the 
 words used, ib. 
 
 Admissibility of evidence of surrounding 
 circumstances to explain and point the 
 libel — Interpretation of the words used, 
 822 
 
 Proof of subsequent libels to explain and 
 point the libel charged in the declara- 
 tion, 823 
 
 Proof of successive libels to show malice, 
 ib. 
 
 Evidence of malice, 824 
 
 Proof of injm-y to the plaintiff, ib. 
 
 Evidence of special -damage, ib. 
 
 Proof of the trade, or profession, or offi- 
 cial character of the plaintiff, 825 
 
 Proof that the words vi^ere spoken con- 
 cerning a tradesman or professional 
 man in the way of his trade or pro- 
 fession, ib. 
 
 Evidence on the part of the defendant — 
 Traverse of material allegations, 826 
 
 Proof of the truth of the charge or accu- 
 sation, ib. 
 
 The damages recoverable in actions for 
 defamation, 827 
 
 Evidence in aggravation of damages, ib'. 
 
 Mitigation of damages, 828 
 
 Proof of libels by the plaintiff on the 
 defendant, ib. 
 
 Evidence of offers of apology in mitig^ition 
 of damages, 829 
 
 Of the judge's direction to the jury, ib. 
 
 Setting aside verdict — ^Arrest of judg- 
 ment, 830 
 
 Indictments for libel and slander, 831 
 
 When the truth of the matter may be 
 given in evidence, 832 
 
 Evidence for the defence, 833 
 
 CHAPTER XVIII. 
 
 OF FKAUDULENT MISEEPRESENTATION AND DECEIT, FKAUDULENT 
 
 CONCEALMENT, BKEACH OF WAKEANTY, AND FALSE 
 
 PEETENCES, 834—878. 
 
 Section I. — Of fraudulent misrepresenta- 
 tion and deceit, fraudulent concealment, 
 and breach of wwrranty, 834 — 860. 
 
 Of wilful deceit, 834 
 
 Unintentional deception, 835 
 
 Ealse representations under pretence of 
 
 a claim of right — ^Ealse claim of lien, 
 837- 
 
 Eepresentations by a person of his know- 
 ledge of a particular fact, when he 
 knows that he has no knowledge at all 
 about it, ib. 
 
 Statements and representations which 
 
XX vm 
 
 CONTENTS. 
 
 must be authenticated by a signed 
 writing — False representations con- 
 cerning the conduct, credit, ability, 
 trade, or dealings pf third persons, 838 
 
 Eepreseutations concerning the character, 
 credit, trade, or dealings of co-partner- 
 shipa and joint-stock companies — Au- 
 thentication thereof by a signed writing, 
 839 
 
 Misrepresentation by directors and officers 
 of public companies — Publication, of 
 deceitful prospectuses and reports, >5. 
 
 Fraudulent breach of warranty, 842 
 
 Warranties made pending a negotiation 
 
 ■ for the sale of property, 848 
 
 Private representations, made prior to a 
 sale by auction forming no part of the 
 public contract of sale, iib. 
 
 False representations amounting to a 
 warranty by a person of his knowledge 
 of a particular fact, where the means 
 of knowledge lie peculiarly or exclu- 
 sively within his reach, 844 
 
 Representations concerning matters which 
 are obvious to ordinary intelligence, 
 and which lie as much within the 
 knowledge of one party as the other, 
 845 " 
 
 Kepresentations amounting merely to 
 expressions of opinion and belief, ib. 
 
 Statements in answer to inquiries — In- 
 formation to sheriffs and public officers, 
 846 
 
 Warranties by vendors on sales of real 
 property, ib. 
 
 False representations of title by vendors 
 of corporeal and incorporeal heredita- 
 ments — Representations hot amounting 
 to a warranty, 847 
 
 Bepresentation of title on sales of chattels 
 amounting to a warranty, 848 
 
 False representation by manufacturers 
 X)f the character and quality of the 
 articles they manufacture and sell, 849 
 
 Eepresentations by a vendor who is told 
 that the purchaser wants the article 
 he proposes to buy for a particular pur- 
 pose, ib. 
 
 False representation by vendors made to 
 absent purchasers amounting to a war- 
 ranty, 850 
 
 False representations by. vendors where 
 the purchaser has means of examina- 
 tion and judgment — ^Sale of goods by 
 sample, ib, ' - 
 
 False representations by railway com- 
 panies amounting to a warranty, 852 
 
 False representation of authority — Pre- 
 tended agency — Deceit by agents, ib. 
 
 When a principal is responsible for the 
 fraud of his agent, 854 
 
 False assumption of authority, as between 
 master and servant, employer and em- 
 ployed, 855 
 
 Counterfeiting trade-m^rka — Fraudulent 
 use by one person of the trade-mark of 
 another with intent to deceive, ib. 
 
 Warranty of the genuineness of articles 
 with trade-marks, 856 . 
 
 Warranty of description as to quantity 
 or country, ib. 
 
 Fraudulent assumption of the name of a 
 bant, 857 
 
 Deceit by provision-dealers in selling un- 
 wholesome food, ib. 
 
 False and fraudtdent representations by 
 married women and infants, ib. 
 
 Fraudulent concealment, 858 
 
 Fraudulent concealment of the dangerous 
 nature of articles delivered to a bailee 
 to be warehoused or carried, 859 
 
 Fraudulent sales with all faults, 860 
 
 Section II. — Of actions for fraud and 
 decdt, and the remedy by injimction, 
 861—878. 
 
 Actions for deceit — Parties to be made 
 plaintiffs, 861 
 
 Parties to be made defendants — ^Principal 
 and agent,, 862 ' 
 
 Joint-stock companies, 863 
 
 Of declarations for deceit, 864 
 
 Declarations for breach of warranty on 
 the sale of a horse, ib. 
 
 Declaration by an agent against a princi- 
 pal for a false representation, 865 
 
 Declarations for fraudulently inducing an 
 architect to withhold his certificate, ib. 
 
 Of the plea of not guilty, ib. 
 
 Proof of fraudulent- misrepresentation 
 and deceit, 866. 
 
 Proof of the representation having "been 
 made to the plaintiff, ib. 
 
 Proof that the plaintiff relied upon the 
 representation, and not upon his own 
 examination and judgment, ib. 
 
 Proof of warranties, 867 
 
 Proof of the terms andi conditions of war- 
 ranty by proof of public notices stuck 
 up in an auction-room or repositoiy 
 where' the thifig warranted was sold, 
 868 
 
 Evidence of breach of warranty of a horse 
 — What constitutes unsoundness, i5. 
 
 Proof of manifest defects not covered by 
 the warranty, 869 
 
 Proof of vice, ib. 
 
 Proof of the use of counterfeit trade- 
 marks, ib. 
 
 Bemedies in equity for a false representa- 
 tion, 870 
 
 Of the damages recoverable in actions for 
 fraudulent misrepresentation and de- 
 ceit, ib. 
 
 Special damages — Breach of warranty,871 
 
 Special damages — False assumption of 
 ' agency, ib. 
 
 Prevention of fraud by indictment, 872 
 
 Indictments for obtaining, or endeavour- 
 ing to obtain, money or goods by false 
 pretences, 873 
 
 Injunction to prevent fraud, 874 
 
 Injunction to prevent the fraudulent use 
 of trade-marks, ib. 
 
CONTENTS. 
 
 XXIX 
 
 CHAPTER XIX. 
 
 OF M.VTUIMONIAL AND PABENTAL INJUKIES, ADULTERY, AND 
 SEDUCTION, 879 — 915. 
 
 Section I. — Of the infrinr/ement of tiialri- 
 monial and parental rights, 879 — 905 
 
 Eights of wives deserted by their hus- 
 bands, 879 
 
 Eight of action of married women after 
 they have obtained an order for pro- 
 tection, 880 
 
 What amounts to desertion, 881 
 
 Of the restitution of conjugal rights, ib. 
 
 Of judicial separation on the ground of 
 adultery, cruelty, or desertion, 882 
 
 What amounts to cruelty, ib. 
 
 Eevival of condoned cruelty, 884 
 
 What amounts to desertion without 
 cause, ib. 
 
 Eights of married women after a decree 
 for a judicial separation, 885 
 
 Alimony in oases of judicial separation, ib. 
 
 Of adultery and the dissolution of the 
 marriage contract, 886 
 
 Adultery and desertion on the part of the 
 husband, 887 
 
 Wilful neglect or misconduct on the part 
 of the husband conducing to adultery 
 on the part of the wife, 888 
 
 Connivance pr toleration of adTiltery, ib. 
 
 Condonation of adultery, 889 
 
 Alimony in cases of (fissolution of mar- 
 riage, 890 
 
 Ordera for the settlement of property for 
 the benefit of the iimocent party and 
 children, ih. 
 
 Power of the Divorce Court over mar- 
 riage settlements, ib. 
 
 Ordera respecting the custody of children, 
 891 
 
 Of the common-law right of fathers to 
 the custody of their infant children, 
 893 
 
 Eight of guardians for nurture to the 
 custody of infant children, 89i 
 
 Inability of courts of common law to in- 
 terfere vidth the right of the father to 
 the custody of his children, ib. 
 Of the controlling power of the Court of 
 Chancery over the father's right to the 
 custody of his infant children, 895 
 
 Jurisdiction of the Court of Chancery 
 over the custody Of the children of 
 British subjects bom abroad, 896 
 
 - Jurisdiction of -the Court of Chanceiy 
 over the children of foreigners in this 
 country, ib. 
 
 Eight of accesss of mothers to their mfant 
 children, and to the custody of children 
 under seven years of age, 897 
 Of the right of the mother to the custody 
 of her children on the death or trans- 
 portation of the father, 898 
 
 Of the obligation of parents to provide 
 for their children, iJ. 
 
 Evidence on the hearing of petitions — 
 Competency of the husband and wife 
 ■ to give evidence, 898 
 
 Trial of questions of fact before a jury, 
 899 
 
 Petitions for damages from adulterers, 
 900 
 
 Evidence at the trial of a claim for 
 damages for adultery — Proof of . the 
 marriage, ib. 
 
 Proof of marriage by certified extracts 
 from parochial registers of marriages, 
 ib. ■ 
 
 Proof of marriage through the medium 
 of examined copies and certified ex- 
 tracts from non-parochial registers, 901 
 
 Of the damages recoverable in oases of 
 adultery, 903 
 
 Evidence of the defendant's circumstances 
 or property, 904 
 
 Application of the damages recovered — 
 Payment of costs, 905 
 
 Section II. — Of sediuition, 905 — 915 
 
 Of the harbouring of married women and 
 inducing them to live apart from their 
 husbands, 905 
 
 Of the seduction and loss of service of 
 servants, 906 
 
 Of injuries to parents in being deprived 
 of the services of their children through 
 the tortious act of another, 907 
 
 Of injuries to parents from the seduction 
 of their daughters, ib. 
 
 Efiect of the absence of the daughter 
 from the parent's roof at the time of 
 the seduction, 908 
 
 Pretended hiring of girls for purposes of 
 seduction, 909 
 
 Seduction of married daughters, 910 
 
 Effect of proof that the defendant, though 
 he seduced the girl, was not the father 
 of the child of which she was delivered, 
 ib. 
 
 Effect of the seduction and loss of service 
 having been occasioned by the plain- 
 tiff's own misconduct and neglect of 
 his parental duties, ib. 
 
 Of the parties entitled to maintain an 
 action for seduction, 911 
 
 Of the pleadings in actions for seduction, 
 ib. 
 
 Evidence at the trial in actions for seduc- 
 tion — ^Proof of the relationship of mas- 
 ter and servant, 912 
 
 Of the damages recoverable in actions for 
 seduction, ib. 
 
 Evidence in aggravation of damages — 
 Proof that the defendant made his 
 advances to the daughter under thQ 
 guise of matrimony, 913 
 
XXX 
 
 COMTEIJTS. 
 
 Evidence in mitigation of damages, 913 
 Damages recoverable in actions for in- 
 ducing or persuading wives, servants, 
 or workmen to abandon their duties, 
 
 or neglect the fulillment of a contract, 
 914 ° 
 Indictment for the abduction of unmar- 
 ried gids, 915 
 
 CHAPTER XX. 
 
 OF ACTIONS EX DELICTO — PARTIES THERETO — NON-JOINDEK AND 
 MIS-JOINDEE 01? PARTIES, 916 — 946. 
 
 Section I. — Of actions ex delicto and the 
 parties to he made plaintiffs in such ac- 
 tions, 916—929. 
 
 Parties to be made plaintiffs in actions of 
 tort 'founded on contract, 916 
 
 Of the remedies which tenants-in-common 
 and joint-tenants have against ' each 
 other, 918 
 
 Eights of the survivor of two joint-ten- 
 ants or tenants-in-common, 919 
 
 Trustee and cestui que trust, ih. 
 
 Bailees of goods, ih. 
 
 Master and servant, 920 
 
 Husband and wife, ib. . 
 
 Actions by married women after a judicial 
 separation, or an order for protection, 
 923 
 
 Infants, ih. 
 
 Heir-at-law, devisee, and personal repre- 
 sentatives, ib. 
 
 Administrators, 926 
 
 Trustees of bankrupts, ih. 
 
 Transfer of rights and liabilities ex delicto 
 to trustees of bankrupts, ib. 
 
 Kight of the trustee to the bankrupt's 
 vrife's choses in action, 928 
 
 Of the number of the plaintiffs in actions 
 ecc delicto — Joint and separate rights of 
 action, ib. 
 
 Section II, — Of actions ex delicto and the 
 parties to be' made defendants in such 
 actions, 930—943. 
 
 Tenants-in-common, 930 
 
 Corporations, ib. 
 
 When a joint-stock company is responsible 
 
 for the tortious acts of the directors and 
 
 managers, 932 
 Trustees and commissioners of public 
 
 worlcs, 933 
 
 Military and naval officers, 934 
 
 Master and servant, ib. 
 
 Principal and agent, ib. 
 
 Subsequent ratification and adoption of a 
 
 wrongful act by parties for whose use 
 
 and benefit the act was done, ib. 
 What amounts to evidence of ratification 
 
 of a wrongful act, 935 
 Servants and agents, ib. 
 Husband and wife, 936 
 Infants, 938 
 
 Executors and administrators,- 939 
 Wrongs committed by a deceased person 
 
 within six months before his death, 
 
 940 
 Actions against the executor of a preben- 
 dary, vicar, and incumbent of a benefice, 
 
 ib. 
 Liabilities of executors and administrators 
 
 for their own wrongful acts, ib. 
 Trustees in bankruptcy, 941 
 Of the continued liability of a bankrupt to 
 
 actions ex delicto, and to, arrest, ib. 
 Of the number of the defendants in actions 
 
 ex delicto — Parties jointly and severally 
 
 liable, 942 
 
 Section III. — Of non-joinder and mis- 
 joinder of parties — Amendment before 
 and at the trial, 943 — 946. 
 
 A mendment of non-join(ier and mis-joinder 
 before trial, 944 
 
 Amendment at the trial, ib. 
 
 Amendment after notice or plea in abate- 
 ment of non-joinder of parties, 945 
 
 Mis-joinder of defendants, ih. 
 
 Effect of marriage, death, and bankruptcy 
 upon the proceedings in an action, 
 
 CHAPTER XXI. 
 
 OF ACTIONS EX DELICTO, PLEADINGS, DEFENCES, AND 
 EVIDENCE, 947—988. 
 
 Section I. — Of pleadings, defences, and 
 evidence in actions ex delicto, 947 — 975. 
 
 Of actions in the county court, 947 
 General jurisdiction of the county court, 
 
 948 
 Copyright of design, 949 
 
 Friendly societies, 949 
 ' Ouster of jurisdiction of county court hi 
 
 cases where the title to land, &c., is in 
 
 question, ib. 
 Eeoovery of possession of small tenements 
 
 in the county court, 951 
 Equitable jurisdiction, 952 
 
CONTENTS. 
 
 XXXI 
 
 Admiralty jumdiction, 953 
 Jurisdiction by consent, 954 
 Waiver of objection to jurisdiction, ib. 
 Of actions in the superior courts — Dif- 
 ferent forms of action — Joinder of dif- 
 
 ereut causes of action in the same suit, 
 
 955 
 Requisites of the declaration, 956 
 Statement of special damage, 957 
 Bereral counts in declarations in respect 
 
 of the same cause of action, ib. 
 Pleas, ib. 
 Pleas to the jurisdiction — Privileges of 
 
 ambassadors, ii. 
 Plea of not guilty, 958 
 Not guilty by statute, ib. 
 Of pleading several matters of defence, 
 
 ib. 
 Traverses by the defendant, 959 
 Traverses by the plaintiff, ib. 
 Eoquisites of special pleas, 960 
 Fictitious and negdless averments in 
 
 pleading, ib. 
 Defences arising after the commencement 
 
 of the action, 961 
 Payment of money into court by way of 
 
 compensation or amends, ib. 
 Pleas of infancy in actions ex delicto, 
 
 962 
 riea of accord and satisfaction ib. 
 Plea of the pendency of another action 
 
 for the same wrong, 964 
 Plea Qf judgment recovered, 965 
 Continuing injuries-Judgment recovered, 
 
 968 
 EiFcct of the recovery of judgment in 
 actions for the conversion of property, 
 969 
 Keoovery of judsment in rem, ib. 
 Plea of the bankruptcy of the plaintiff, 
 
 Pleas of the Stat,Hte of Limitations, 970. 
 
 Commencement of the period of limita- 
 tion, ib. 
 
 Extentiou of the period of limitation in 
 certain cases, 97-2 
 
 Equitable pleas and defences, ib. 
 
 Joinder of issue, 973 
 
 Pleadings construed distributively, ib. 
 
 New assignments, 974 
 
 Section II. — Proceedings and evidence at 
 the trial, 975—988. 
 
 Bight to begin, 975 
 
 Proof on the part of the plaintiff, 976 
 
 Effect of payment of money into court, 
 ib. 
 
 Primary and secondary evidence, 977 
 
 Notice to produce a written document to 
 let in secondary evidence of its contents, 
 979 
 
 Proof of facts resting on hearsay and repu- 
 tation, 980 
 
 Entries of deceased persons against their 
 interest, 981 
 
 Entries made by deceased persons in the 
 exercise of their duties, 982. 
 
 Statements and declarations accompany- 
 ing an act, ib. 
 
 When the adverse party in a suit is estop- 
 ped from giving evidence to contradict 
 his own statements and representations 
 to the plaintiff, 984 
 
 Evidence of manorial customs, 985 
 
 Evidence of title and seizin, ib. 
 
 Amendment of variances between the de- 
 claration of the cause of action, and the 
 proof adduced in support of it, 986 
 
 Admissions of liability, 988 
 
 Illness of witness, ib. 
 
 CHAPTEE XXII. 
 
 OF THE DAMAGES AND COSTS EECOVEEABLE IN ACTIONS 
 EX DELICTO, 989—1027. 
 
 Section I. — Of damages recoverable in 
 actions ex delicto, 989 — 1006. 
 
 Of the assessment of damages in actions 
 ex delicto, 989 
 
 Damages recoverable in particular ac- 
 tions, 990 
 
 Special and extraordinary damages, 991 
 
 Damages too remote, and not naturally 
 resulting from the wrong done, 992 
 
 Damages in actions of tort founded on 
 
 , contract, ib. 
 
 Expense of obtaining legal advice, 993 
 
 Costs of previous legal proceedings, ib. 
 
 Eecovery of damages which the plaintiff 
 has become liable to pay through the 
 default of the defendant, 995 - 
 
 Medical expenses — Physician's fees, ib. 
 
 Prospective damages, 996 
 
 Exemplary and vindictive damages, ib. 
 
 Evidence in mitigation of damages, 998 
 
 Joint-trespasses — Recovery of damages 
 from one of several co-trespassers, 1000 
 
 Damages when the plaintiff has insured 
 against Toss, or has received full indem- 
 nity nnder a contract of insurance, ib. 
 
 Double and treble damages, 1001 
 
 New trial on the ground of excessive 
 and outrageous damages, 1002 
 
 New trial on account of the smallness of 
 the damages, 1004 
 
 Arrest of judgment where the plaintiff 
 has a verdict lor greater damages than 
 he is legally entitled to, ib. 
 
 Inquisition of damages before the sheriff, 
 1005 
 
 Section IL — Of the recovery of costs in 
 actions ex delicto, 1006 — 1027< 
 
 Award of costs to a successful plaintiff, in 
 the superior courtsj 1006 
 
XxSii 
 
 CONTENTS. 
 
 Costs to a successful defendant, 1006 
 
 Costs on pleas setting up matters of de- 
 fence which have arisen since the last 
 pleading, 1007 
 
 Costs on a stay of proceedings, 1008 
 
 Costs on arrest of judgment, or judgment 
 non obstante veredicto, ib. 
 
 Where the court has no jurisdiction it 
 has no power to give costs, ib. 
 
 Effect on costs of withdrawing a juror, 
 1009 
 
 Costs in actions of slander and libel, ib. 
 
 When the certificate of a judge or pre- 
 siding officer is necessary to enable the 
 plaintiff to recover costs, 1011 
 
 Certificate that the action was brought 
 to try a right, ib. 
 
 Within what time the certificate must 
 bo granted, 1012 
 
 County Court Acts depriving the plaintiff 
 of costs in the superior courts, 1013 
 
 When the foundation of the action is a 
 contract, 1014 » 
 
 When money has been paid into court, 
 ib. 
 
 The certificate that it appeared to the 
 judge that there was sufficient reason 
 for bringing the action in the superior 
 court, 1015 
 
 Costs on references, 1016 
 
 Costs of reference, 1017 
 
 Certificate for full costs in actions for 
 wilful and malicious grievances, ib. 
 
 Pull costs in actions for wilful and mali- 
 cious trespass, or after notice not to 
 trespass, 1018 
 
 Costs in the superior courts in actions 
 against justices, 1019 
 
 In actions against constables and officei'S, 
 and parties acting or intending to act 
 
 in the execution of statutory powers, 
 
 1019 . „ , . 
 
 Certificate for costs iu actions for thmgs 
 
 done in supposed pursuance of the Act 
 
 for the Protection of Property from 
 
 Malicious Injuries, 1020 
 Costs in actions against executors, ib. 
 Costs in actions for duties and penalties 
 
 at the suit of the Crown, ib. 
 In actions upon judgments, ib. 
 Costs on new trials, 1021 
 In cases of appeals &om the decision o£ 
 
 a county-qourf judge, or judge of an 
 
 inferior tribunal, ib. 
 In the case of an appeal from a superior 
 
 com^t to the Court of Exchequer 
 
 Chamber, ib. 
 Costs on removal of actions by writ of 
 
 certiorari, 1022 
 In cases of prohibition, ib. 
 On indictments for libel and slander, ib. 
 Costs of vfrits of mandamus and injunc- 
 tion, ib. 
 On an application for an injunction 
 
 under the Kailway and Canal Traffic 
 
 Act, ib. 
 Repeal of divers statutes enabling plain- 
 tiffs in certain actions to recover double 
 
 costs, 1022 
 Costs in compensation cases, 1023 
 Taxation of costs, i6. 
 Costs of particular issues, 1024 
 Where costs are to be taxed by the court 
 
 in which the action is brought, 1025- 
 Seourity for costs, ib. 
 Award of costs in the county court, 1026 
 Costs of prosecutions, 1027 
 As to costs of injunction under Common 
 
 Law Procedure Act, ib. 
 
 CHAPTER XXIII. 
 
 OF DAMAGES IN CHANCERY, AND THE EEMEDY BY INJUNCTION, 
 PROHIBITION, AND CERTIOEARI, 1028 — 1052. 
 
 Section I. — Of damages in Cliancery, and 
 the remedy by injunction, 1028 — 1037. 
 
 Award of damages in the Court of Chan- 
 cery, 1028 
 
 The writ of injunction issuing out of 
 Chancery, 1029 
 
 Injimction to restrain a public company 
 from exceedingits statutory powers, 1030 
 
 Injunction to restrain disturbance of 
 grave-yards, and obstructions to rights 
 of burial, ib. 
 
 Injunction to restrain the infringement of 
 patent rights and copyright, 1031 
 
 Injunction to restrain the sale or deten- 
 tion of chattels, 1032 
 
 Effect of ktcJies and delay iu applying for 
 an injunction, 1033 
 
 Acquiescence precluding a plaintiff from 
 relief, ib, 
 
 Of the statutory obligation upon the 
 
 Court of Chancery to decide all ques- 
 tions of law and fact, on the determi- 
 nation of which the title to relief in 
 equity depends, 1033 
 
 Of the remedy by injunction at common 
 law, 1035 
 
 Injunction at common law to restrain 
 infringements of patent-right and copy- 
 right, 1036 
 
 Injunctions and orders to stay proceed- 
 ings, 1037 
 
 Section 11.— Of the remedy 
 for the prevention of judicial wrongs, 
 1037—1047. 
 The writ of prohibition, 1037 
 Prohibition before judgment, 1038 
 Prohibition after judgment and execu- 
 tion, 1039 
 Prohibition where appeal lies, 1040 
 
CONTENTS. 
 
 XXXlU 
 
 Prohibition to theecolesiasticalcoiirts,1040 
 Notwithstanding an appeal entered, 1041 
 The writ of prohibition to restrain a 
 
 covinty court judge, ib. 
 Prohibition to the Lord Mayor's Court, 
 
 1045 _ 
 Proceedings in prohibition, ib. 
 The application for a prohibition, 1046 
 The rule or sununons to show cause why 
 
 a writ of prohibition should not issue 
 
 to a county court, ib. 
 Notice of the issue of the writ, ib. 
 Kefusal of writ when final, 1047 
 Of the setting aside writs of prohibition 
 
 issuing out of Chancery, ib. 
 
 Section III. — Of the remedy by certiorari, 
 1047—1052. 
 
 The writ of certiorari, 1047 
 
 Where the inferior court has iurisdiction, 
 1047 
 
 Where the inferior court has no jurisdic- 
 tion, 1048 
 
 Limitation of time for issuing the writ, 
 1048 
 
 Grounds for tTie issue of the writ, 1049 
 
 Certiorari to remove causes fi:om the 
 county court, ib. 
 
 Of the concurrent remedy by appeal and 
 by certiorari — County court appeals, 
 1050 
 
 The application for the writ, 1051 
 
 Affidavits when necessary, ib. 
 
 Notice of the issue of the writ, 1052 
 
 The effect of the issue of the writ, ib. 
 
 The effect of the refusal of a writ of cer- 
 tiorari, ib. 
 
 Proceedings after removal, ib. 
 
 Quashing of the writ — Procedendo, J6. 
 
 CHAPTER XXIV. 
 
 OF THE EEMEDY BY MANDAMUS, 1053 — 1086. 
 
 Section L — Of the remedy by mandamus 
 for the mndiication of rights, and tlie 
 enforcement of the performance of public 
 duties, 1053—1079 
 
 The prerogative writ of mandamus, 1053 
 
 Mandamus to enforce statutory, corpo- 
 rate, and public duties and obligations, 
 1054 
 
 Mandamus to judges, magistrates, and 
 judicial officers, commanding them to 
 hear and adjudicate, 1055 
 
 Mandamus to ministerial officers, 1057 
 
 Mandamus to overseers or clergymen to 
 bury the dead body of a pauper, 1058 
 
 Of the granting of the writ where there 
 
 ' is another remedy, 1059 
 
 Mandamus to compel the surrender of 
 public documents, 1060 
 
 A mandamus to restore a public officer to 
 a freehold office from which he has been 
 wrongfully dismissed, 1061 
 
 How a freehold office may be forfeited 
 and vacated, 1062 
 
 Offices held at will, 1063 
 
 Visitatorial power excluding the proceed- 
 ing by mandamus, 1064 
 
 Mandamus to restore the name of a 
 medical practitioner to the medical 
 register, ib. 
 
 Mandamus to test the validity of an 
 election, 1065 
 
 Mandamus to elect corporate and public 
 officers, ib. 
 
 Mandamus to enforce an appointment to 
 a public or corporate office, ib. 
 
 Mandamus to chartered companies and 
 corporations, 1066 
 
 Mandamus to make calls, 1068 
 
 Mandamus to local boards, commis- 
 sioners, trustees, and public officers to 
 levy rates and satisfy and discharge a 
 
 judgment debt or a pecuniary obliga- 
 tion, 1068 
 
 Mandamus to railway companies, corpo- 
 rate bodies, and local boards, to make 
 compensation for lands taken or inju- 
 ries infficted upon private persons, 
 1069 
 
 Mandamus to boards of health to make 
 compensation, 1070 
 
 Effect of laches or delay in applying for 
 the writ, 1071 
 
 The proceedings upon a mandamus, ib. 
 
 Proceedings by mandamus in respect of 
 corporate offices in boroughs, 1072 
 
 Conditions precedent to the issue 'of the 
 writ, ib. 
 
 Requisites of the vmt, ib. 
 
 Parties to whom the writ is to be di- 
 rected, 1073 
 
 Service of the writ, 1074 
 
 Return to the writ, ib. 
 
 The return to a mandamus to restore a 
 dismissed public officer to his office, 
 ib. 
 
 Return setting up inability or impossi- 
 bility of performance — Expiration , of 
 statutory power, 1075 
 
 Pleas to the return — Traverse of material 
 allegations, ib. 
 
 Statutory protection to certain public 
 officers, 1076 
 
 Time for taking objections to the writ, 
 1077 
 
 Review of the proceedings in mandamus 
 by writ of error, ib. 
 
 Damages and costs, 1078 
 
 Judgment non obstante veredicto, ib. 
 
 Action or information for a false return, 
 1079 
 
 Attachment for disobedience of peremp- 
 tory writ of mandamus, ib. 
 
XXXIV 
 
 CONTENTS. 
 
 Section II.— .0/ the claim to » wnt 
 of mandamus in an action at common 
 lam, 1079—1086 
 
 Of the union of an aotiom in respect of a 
 private injury with an application for 
 a mamdamua, 1079 
 
 Actions in which a claim for a mandanras 
 may be sustained, 1081 
 
 Actions in which a claim for a mandamus 
 
 cannot be sustained, 1083 
 Dedoration in an action" for a mandamus, 
 
 1084 
 The pleadings in the action, 1085 
 Orders for the rectification of the register 
 
 of shareholders, in joint-stock com- 
 
 pj,nies, ib. 
 
INDEX OF CASES. 
 
 AABOfT V. Alexander, 666, 943. 
 Abbot V. Weekly, 102. 
 Abbott V. Godoy, 902. 
 
 — V. Maofle, 21, 401. 
 Aberaman Iron Works v. Wickens, 843, 
 
 847. 
 Aberdeen Arc. Co. v. Sutter, 335. 
 Abernethyw. Hutohinaqn, 10, 1031. 
 Aberystwith Pier Co. v. Cooper, 948. 
 Abington v. Lipscomb, 324. 
 Abley r. Dale, 671, 1013. 
 Abraham v. Reynolds, 400. 
 Abrahams v. London (Lord Mayor, &c., 
 
 of), 1030. 
 Absor V. French, 221, 297. 
 Acklaud v. Paynter, 652. 
 Ackroyd v. Smith, 97. 
 Acton V. Blundell, 61, 68. 
 Adam v. Bristol, 924. 
 Adams v. Adams, 905. 
 
 — v. Andrews, 307. 
 
 — ■K Bafeald, 906. 
 
 — V. Broughton, 361, 
 
 — V. Cheverel, 924. 
 
 — V. Crane, 530. 
 
 — V. Gt. West. EaU. Co., 948. 
 
 — V. Lane, and Yorks. Kail., 401, 
 
 422. 
 Adamson v. Jaryis, 845, 848, 855, 865. 
 Addison v. Overend, 364. 
 Adiam v. Colthurst, 279. 
 Aga Kurboolie Mahomed, 648. 
 Agra Bank, M parte, Me Worcester, 352. 
 Agra, The, and The Elizabeth Jenkins, 
 
 393. 
 Ainsworth v. Walmsley, 876. 
 Aitkenhead v. Blades, 264. 
 Albert (Prince) v. Strange, 10, 1032. 
 Alder.son v. Davenport, 647. 
 Aldred's case, 3, 162. 
 Aldred v. Constable, 322. 
 Aldridge v. Gt. West. Kail. Co., 251, 
 
 255, 481, 486, 487. 
 Aldworth v. Stewart, 603. 
 Alexander v. Alexander, 881. 
 
 — v. Gibson, 863. 
 
 — 11. Jones, 948. 
 
 — V. N. E. Bail. Co., 811, 826. 
 
 — r. Southey, 326. 
 Alford V. Vickery, 518. 
 Alfred v. Farlow, 798, 831. 
 Allan V. Gomme, 309. 
 AUardice v. Eobertson, 808. 
 AUday v. Gt. West. Rail. Co., 483. 
 
 Allen, ^K parte, S32. 
 
 — V. Allen, 889. 
 
 — V. Bennett, 347. 
 
 — V. Clark, 406. 
 
 — V. Darcy, 889. 
 
 — V. Flicker, 544. 
 
 — V. Hayward, 205, 742, 768. 
 
 — V. L. and S. W. Kail., 597. 
 
 — V. Smith, 438, 503. 
 
 — V. Walker, 269, 294, 572. 
 
 — V. Wright, 578. 
 AUeston v. Moor, 801. 
 Allison, In re, 707, 718. 
 Allsop V. Allsop, 998. 
 Allwood V. Heywood, 337. 
 Alsager v. Close, 328, 374. 
 Alston V. Grant, 163. 
 
 — t. Scales, 289, 313, 
 Alton V. Mid. Kail. Co., 907. 
 Amalia, The, 392. 
 Amann v. Damm, 786, 806. 
 Ambergate, &c.. Kail. Co. v. Mid. Kail. 
 
 Co., 549. 
 Amies v. Stevens, 494. 
 Amory v. Brown, 54. 
 Amys V. Creed. 194. 
 Ancaster v. Milling, 306, 310. 
 Anderson, Bx parte, 1032. 
 _ V. Buokton, 4, 312. 
 
 — V. Mid. Kail. Co., 518, 520. 
 
 — 11. Passman, 463. 
 _ V. Smith, 458. 
 
 Andrew, iJe, 446. 
 
 — V. Boughey, 962. 
 'Andrews v. Askey, 912. 
 
 — ' V. Buckton, 23. 
 
 — V. Chapman, 792. 
 
 — V. Dixon, 672, 677. 
 _ ■;;. Elliott, 955. 
 
 — V. Marris, 642, 644, 674. 
 Anglo-Danubian Co., v. Kogerson, 1029. 
 Anichini v. Anichini, 190. 
 Annapolis, The, 390. 
 
 Anne and Mary, The, 410. 
 Ann Elliott, In the goods of, 880. 
 Anon., 3 Atk. 636. 
 _ 2 Chitt. 1061. 
 
 — 2 Chitt. 1056. 
 
 — Cro. Bliz. 248. 
 
 — 2J)ick. 446. 
 
 — Dyer, pi. 162, 23. 
 
 — cited 16 East, 975. 
 _ Keilw. 98, pi. 4, 93. 
 _ Lofft, 649, 842. 
 
 c2 
 
XXXVl 
 
 INDEX OF CASES. 
 
 Anon.,6 Mod., 583, 621, 632. 
 
 — 7 Mod., 605, 649. 
 
 — 11 Mod., 93. 
 
 — 12 Mod., lOil. 
 
 — Poph.,333. 
 
 — 2 EoUe's Rep., 285. 
 
 — 1 Salk., 689. 
 
 — 2 Sim., N. S., 893. 
 
 — Skin., 33. 
 
 — 2 Str., 1066. 
 
 — 2 Swanst., 831, 
 
 — cited i Taunt., 858. 
 
 — 3 Wils., 267. 
 
 — V. Moor, 823. 
 
 — V. Sabine, 29. 
 Anquez v. Anquez, 881. 
 Ansett V. Marshall, 1024. 
 Anthony v. Brecon Markets Co., 163. 
 
 — 1). Haney, 310. 
 Arbouin v- Anderson, 329. 
 Arcedeckne v. Kelk, 157, 158, 
 Archer v. Bennett, 85. 
 
 — V. James, 1021. 
 
 — V. WUliams, 463, 464. 
 Arden v. Goodacre, 680. 
 Argentina, The, 342. 
 
 Aris V. Orchard, 948. 
 
 Arkwright v. Gell, 119, 123. 
 
 Arlett V. Ellis, 105. 
 
 Armistead v. White or Wilde, 498, 501. 
 
 Armory v. Delamirie, 333, 374, 461. 
 
 Armsworth v. S. E. Kail Co., 423. 
 
 Armytage v. Haley, 1004. 
 
 Amison, Ex parte, 534, 644. 
 
 Arnold v. Hamel, 728. 
 
 — V. Blaker, 173. 
 Arthington v. Pawkes, 159. 
 Arthy v. Coleman, 742. 
 ArundoU v. Tregono, 628. 
 
 — V. White, 629. 
 Ash V. Dawnay, 650. 
 Ashbury, Ex parte, 246. 
 Ashby V. Harris, 7, 673. 
 
 — V. White, 7, 27, 28, 33, 144, 389, 
 
 956. 
 Ashley v. Harrison, 5, 825. 
 Ashley's case, 841. 
 Ashmore v. Hardy, 372. 
 Ashton, In re, 35.5. 
 
 — V. Blackshaw, 353. 
 Ashworth v. Hey worth, 13. 
 
 — V. Stanwix, 187, .398, 400. 
 Aslin 1!. Parker, 314. 
 
 Assop V. Yates, 398. 
 Astley V. Yonnge, 780. 
 Aston v. Aston, 237. 
 
 — V. Heaven, 385, 417. 
 
 — V. Perkes, 961. 
 Atkins V. Kilby, 721, 733. 
 
 — V. Owen, 328. 
 Atkinson v. Marshall, 327. 
 
 — V. Matteson, 975. 
 
 — V. Newcastle and Gateshead 
 
 Waterworks, 40. 
 
 — V. Raleigh, 628. 
 
 — V. Warne, 607. 
 
 Attack V. Bramwell, 264, 320, 536, 537 
 
 545, 566, 568. 
 AttersoU v. Stevens, 247, 313. 
 Att.-Gen. r. Birmingham (Borough of) 
 215, 217, 745, 771. 
 
 Att.-Gen. v. Bradford Canal, 215. 
 
 — V. Cambridge Gas Co., 218. 
 _ V. Chambers, 114, 281. 
 
 _ V. Cleaver, 164, 215.- 
 
 — V. Oolney Hatch Asylum, 216. 
 
 — V. Dakin, 652. 
 
 — V. Doughty, 3. 
 
 — V. Ely, &c.. Rail. Co., 772. 
 
 — II. Forbes, 217. 
 
 — V. Gee, 215. 
 
 — u. Hallett, 315. 
 
 — V. Hatton,-1002. 
 
 — V. Jones 114, 281., 
 
 — V. Leeds (Corporation of), 745. 
 — . V. Lonsdale (Earl of) 282. 
 
 — V. Luton Local Board, 744. 
 
 — V. Mathias, 102, 113 
 
 — V. Metrop. Board, &o., 771. 
 
 — V. Mid Kent Rail. Co., 772. 
 
 — V. Nichol, 76. 
 
 — D. Norwich (Mayor of), 743. 
 
 — 1). ReeS, 282. 
 
 — V. Richmond, 215. 
 
 — V. Sheffield Gas Co., 217i 
 
 — V. Southampton Corp., 217. 
 
 — V. Thames Conservators, 1030. 
 
 — 17. United Kingdom Tel. Co., 
 
 77,218,1035. 
 
 — V. West Hartlepool Commis- 
 
 sioners, 772. , 
 
 — of New South Wales v. Mac- 
 
 pherson, 640. 
 Attwood V. Ernest, 454. 
 Atwood V. Monger, 622. 
 Aubrey v. Eisher, 235. 
 Augustein v. Challis, 677, 678, 977. 
 Austin V. Bowling, 949. 
 
 — V. Great Western Rail. Co., 383. 
 
 917. 
 
 — V. Mills, 966. 
 
 Austria (Emperor of) i). Day, 877. 
 
 Avanzo v. Mudie, 41. ' 
 
 Avery v. Cheslyn, 244. 
 
 AvUa V. Avila, 886. 
 
 Ayles V. S. East. Rail. Co., 384. 
 
 Ayling v. Whicher, 921. 
 
 Ayre v. Craven, 797, 800, 812, 
 
 Babonbau v. Earrell, 821. 
 Bach V. Meats, 535. 
 Back V. Stacey, 153, 157. 
 Backhouse v. Bonomi, 62, 75, 150. 
 
 — 1). Harrison, 329. 
 Bacon v. Bacon, 892. 
 
 — i;. Jones, 1031, 1033. 
 
 — V. Smith, 253, 922. 
 Baddeley v. Denton, 1047. 
 Badger v. Ford, 140. 
 
 — V. South York. Rail. Co., 285. 
 Badkin v. Powell, 551. 
 
 Bagge V. Mawby, 519, 539. 
 
 Bagg's Case, 106;^. 
 
 Baglehole v. Walters, 860. 
 
 Bagnall v. London and N. W. Rail. Co., 
 
 92, 736, 737, 757, 761, 996. 
 Bagot V. Bagot, 235, 236. ' 
 
 — (Lord) V. Williams, 967. 
 Bagshaw v. Seymour, 855. 
 Bagueley v. Hawley, 849. 
 
 Bahia and San Francisco Rail. Co., Ee, 
 985, 1086. 
 
INDEX OF OASES. 
 
 xxxvi; 
 
 Bail V. Mellor, 588, 5S6. 
 Bailey's Case, 702, 703, 717. 
 Bailey, ExpaHe, 894, 898. 
 
 — V. Appleyard, 130. 
 
 — V. Bidwell, 32R, 329, 313. 
 
 — V. Birtles, 939. 
 
 — V. Hobson, 241, 260. 
 
 — v. Merrell, 26. 
 
 — -v. Stephens, 97, 107, 118, 296. 
 
 — V. Sweeting, 477. 
 Baily v. MeiTell, 843, 848. 
 Bain v. Fothergill, 15. 
 Baird v. Fortune, 141. 
 
 — V. NeilsoD, .')4. 
 
 — V. Williamson, 68. 
 Baker r. , 921. 
 
 — V. Brown, 1002. 
 
 — v. Lend, and S. "W. Bail. Co., 962. 
 
 — v. Morfue, 800. 
 
 — V. Pierce, 797. 
 
 — «.. "Wait, 953. ' 
 
 — v. Webberly, 23. 
 Balcli V. Syiues,,446. 
 Baldwin v. Cole, 321, 323. 
 
 — V. Elphinston, 813. 
 Baldwyn v. Girries, 1002. 
 Ball V. BaU, 896. 
 
 — r. Herbert, 88. 
 Ballard v. Dyson, 152. 
 Ballinger v. Eerris, 590. 
 Balls V. Metrop. Board of Works, 1023. 
 Bamfield v. Massey, 914. 
 Bamford v. Turnley, 163, 164. 
 Bancroft v. Mitchell, 939. 
 Bank of Bengal v. Macleod, 344. 
 
 — V. Fagan, 344. 
 
 Bank of Ireland v. Trustees of Eyana's 
 
 Charity, 21, 22. 
 Bank of Hindustan, Re, 446, 1085. 
 Bank of Upper Canada v. Bradshaw, 407. 
 Bankart v. Houghton, 216. 
 
 — V, Tennent, 156. 
 Banks v. Allen, 800. 
 
 — v. Bebbeck, 952. 
 Bannister v. Hyde, 541.. 
 
 Banque de Credit Commercial v. ~de Gas, 
 
 1045. 
 Barber 'o. Leslter, 34, 613. 
 
 — V. Nottingham and Grantham 
 
 Rail. Co., 736, 759. 
 
 — V. Rollinson, 599, 730. 
 
 — V. Walduck, 49. 
 
 — V. Whiteley, 80, 266. 
 Barclay, Ex 'parte, 350. 
 Barker v. Braham, 596, 672. 
 
 v. Richardson, 132. 
 
 Barley v. Walford, 836, 864. 
 Barlow, In re, 1059, 1065, 1066. 
 
 — 1). Rhodes, 141. 
 Barnabas v. Trauuter, 803. 
 Barnardiston v. Chapman,- 330, 364. 
 Barnes ». Barnes, 886, 891, 893. 
 
 — V. Holloway, 820. 
 
 — V. Hunt, 293, 307. 
 
 — 'c. Marshall, 1044. 
 
 — V. Prudlin, 813. 
 
 — i>. Ward, 170, 172, 190. 
 Barnett v. Allen, 4, 798, '823. 
 
 — V. Brandao, 445. 
 
 — V. Crystal Palace Co., 324. 
 
 — V. Guildford ( Karl), 289, 304, 315. 
 
 Barnewell v. Williams, 458. 
 Barraclough v. Johnson, 220, 221. 
 Barratt v. Collins, 594, 811, 929. 
 Barrett v. Long, 813, 816. 
 Harrington V. Turner, 319, 369, 373. 
 Barrington's Case, 98. 
 Barrow v. Arnaud, 463, 464, 779. 
 
 — -D. Bell, 359. 
 Barry v. Arnaud, 16. 
 
 — V. Bebbington, 981. 
 
 — V. Croskey, 835, 836, 840, 854, 
 
 863. 
 Bartholomew v. Stephens, 980, 1024. 
 Bartlett v. Baker,' 176, 414. 
 
 — V. Wells, 857. 
 Barton v. Brioknell, 725. 
 
 — v. Brown, 368. 
 
 — -11. Gainer, 460. 
 
 — V. Gill, 663. 
 
 Barton Hill Coal Co. v. Reid, 398, 400. 
 Bartram v. Payne, 356. 
 Barwell v. Adkins, 823. 
 
 — o. Winterstoke, 288. 
 Barwick v. £ng. Joint St. Bank, 854. 
 Baseb^ v. Matthews, 628. 
 Basham -o. Lumley, 965. 
 
 Basset v. Maynard, 98. 
 Bassett Ex parte, 1059. 
 
 — V. Mitchell, 307. 
 Basten v. Carew, 693, 708. 
 Bastow & Co., He, 653. 
 Batchelor v. Yyse, 657. 
 Bate V. Hill, 914. 
 Bateman, Re, 1037, 1046. 
 
 — 0. Bluck, 198, 222, 223. 
 
 — V. Earnsworth, 654. 
 
 — V. Hotchkin, 235. 
 Baton's Case, -162. 
 Bates V. Pilling, 672, 936. 
 
 — n. Wingfield, 657. 
 Bateson v. Green, 110. 
 Bather v. Day, 511. 
 Batson v. Donoyan, 19, 473, 860. 
 Batten v. Butter, 402. 
 Batterbury-v. Vyse, 865. 
 Battishill v. Reed, 131, 133, 139, 146, 
 
 155, 214. 
 Batty V. Hill, 874. 
 Bawden u Bawden, 887. 
 Bax V. Jones, 593. 
 Baxendale, In re, 514. 
 
 — V. Gt. East. Rail. Co. 475, 476, 
 
 480. 
 
 — V. Qt. West, Rail. Ca, 470, 
 
 493, 514, 515. 
 
 — 0. Hart. 476. 
 
 — V. Lond. and S. W 492, 1022. 
 
 — V. MoMurray, 122. 
 
 — V. North Devon. Rail. Co., 
 
 514. 
 Baxter ii. Taylor, 120, 290, 292. 
 Bayley v. Wolverhampton Water Works 
 
 Co., 740, 767. 
 Baylis v. Baylis, 888. 
 
 — V. Lawrence, 829, 830. 
 
 — V. Le Gros, 1036. 
 
 — ,;. Usher, 538, 564. 
 Bayliss v. Fisher , 374. 
 Baynes i>. Brewster, 581. 
 Bazeley v. Forder, 898. 
 Beachey v. Sides, 590, 764. 
 
XXXVIH 
 
 INDEX OY CASES. 
 
 Bead el v. Perry, 158. 
 Beadell v. Bast Co. EaU. Co., 514. 
 Beal, Ex parte, 47. 
 — V. South Devon Kail. Co. 483. 
 Bealey v. Sha,w, 122, 167. 
 Beard v. Hine, 1043. 
 
 — V. Knight, 665. 
 Beardmore v. Tredwell, 77, 164, 1029. 
 Beasley v. Clarke, 299. 
 Beatson v. Skene, 806. 
 
 Beaty v. Gibbons, 362. 
 Beauchamp v. Croft, 621, 791. 
 
 — (Ld.)«.at.West.EailCo.,761. 
 
 — V. Powley, 436. 
 Beaufort (D. of) v. Bates, 527. 
 
 — v. Ccawshay, 988. 
 
 — V. Mayor, &c., of Swan- 
 
 sea, 281. 
 
 — V. Patrick, 82. 
 Beaulieu v. Finglam, 248. 
 Beavan v, Beavan, 888. 
 
 — V. Delahay, 518, 523. 
 Beaver v. Mayor -of Manchester, 295, 769. 
 Becher v. Gt. Eaat. Rail., 917. 
 Beck V. Denbigh, 536. 
 
 — V. Dyson, 213. 
 
 — V. Eebow,.244. 
 Beckervaise v. Gt. West. Bail., S84. 
 Beckett v. Mid. Kail. Co., 753, 754, 759. 
 Beckford v. Hood, 35, 39, 4i, 43. 
 
 — V. Montague, 677. 
 Beckwith v. Corrall, 329. 
 
 — V. Philby, 577, 578, 603. 
 
 — V. Shordike, 267. 
 Bedford v. Bagshaw, 836, 839, 866. 
 
 — v. Hunt, 56. 
 
 — V. McKowl, 913. 
 BedingHeld v. Onslow, 70, '290, 313. 
 Beechey v. Sides, 764. 
 
 Beeston v. Weate, 121. 
 
 Behu V. Kemble, 835. 
 
 Behrens i>. Gt. North. Kail. Co., 476, 479. 
 
 Belcher v. Bellamy, 351, 354. 
 
 — V. Capper, 354, 
 
 Belfast andBallymenaBail.C().».KeyE,489. 
 Bell V. Byrne, 820. 
 — ■ V. Chaplain, 505. 
 
 — i!. Mid. Bail. Co., 11, 997. 
 
 — V. Oakley, 721.- 
 
 — V. Parke, 786. 
 
 — V. Stone, 776. 
 
 — V. Twentyman, 162, 202. 
 
 — V. Walker, 1032. 
 
 — V. Warden, 102, 308. 
 
 — V. Wilson, 89. 
 Bellamy v. Burch, 801 . 
 Bellew V. Langdon, 110. 
 Bellingay v. BeUingay, 905. 
 Bellingham v. Clark, '944. 
 Benest v. Pipon, 115. 
 Benfield v. Solomons, 926. 
 Bengal, The, 953. 
 
 Bengal (Bank of) v. Macleod, 344. 
 
 — V. Pagan, 344. 
 
 Bennet's Case, 657. 
 Bennett v. Alleott, 912. 
 
 — V. Bayes, 525, 936. 
 
 — V. Bennett, 828. 
 
 — V. Deacon, 786. . 
 
 — V. Loud, and N. W, Bail, Co., 
 
 X008, 
 
 Bennett v. Man., ShefE., and Unc. Bail. 
 Co., 515. 
 _ V. Mellor, 499. 
 
 — V. Reeve, 105. 
 _ V. Eobins, 524. 
 
 V. Thompson, 1016. 
 
 Bennison v. Cartwright, 129. 
 Benson ■». Chester, 108. 
 
 — V. Frederick, 997. 
 
 — i). Paul, 1081. 
 Bent V. Bent, 892, 905. 
 Berkeley v. Earl of Pembroke, 990. 
 Bermondsey Vestry v. Brown, 224, 223. 
 
 — V. Eamsey, 39. 
 
 Bernstein v. Baxendale, 477, 478. 
 Berresford v. Geddes, 987. 
 Berridge v. Ward, 283. 
 Berrie v. Howitt, 447. 
 Berriman v. Peacock, 285., 
 Berry v. Heard, 362. 
 Berryman v. Wise, 825. 
 Berthon v. Cartwrigljt, 906. 
 Bertie v. Beaumont, 147, 272, 364. 
 Berton v. Lawrence, 673. 
 Bessant v. Gt. West; Kail. Co., 181. 
 Bessell v. Wilson, 724. 
 Bessey v. Wyndham, 677. 
 Best V. Drake, 316. 
 — V. Hayes, 456. 
 Beta, The, 392. 
 Betts V. De Viti-e, 25, 1029. 
 
 — V. Gallais, 1029. 
 
 — V. Neilson, 50, 52, 55. 
 
 — ii. Thompson, 104, 160. 
 
 — V. Willmott, 54, 1031. 
 Bevan v. Waters, 439. 
 Bewick v. Whitfield, 236, 333. 
 Bibbey v. Carter, 72, 73, 150. 
 Bickett V. Morris, 66, 282. 
 Bickford v. Darcy, 403. 
 
 — V. Skewes, 52. 
 Biddle v. Bond, 327, 458, 461. 
 Biddulph V. St. George's Vestry, 770. 
 Biederman v. Stone, 15. 
 
 Biggins V. Goode, 667. 
 Biggs V. Mitchell, 218. 
 Biglin V. Wylie, 229. 
 Bignell v. Buzzard, 777. 
 
 — V. Clarke, 550. 
 Bignold V. Waterhouse, 509. 
 Bilbao, The, 953. 
 
 Bilbee v. Lond. and Bright. Bail. Co., 
 
 385. 
 Billiter v. Young, 321. 
 Bills V. Smith, 346. 
 Binokes v. Pash, 137. 
 Binks V. 8. Yorkshire and Eiver Dun Co., 
 
 169, 172, 186. 
 Binns v. Pigot, 502. 
 Birch, ira. re, 1038. 
 
 — V. Wright, 314. 
 Birohley's Case, 800. 
 Birch- Wolfe v. Birch, 259. 
 Bird, Ex parte, 1056. 
 
 — V. Elwes, 194. 
 
 — V. Gt. Eastern Eail. Co., 751. 
 
 — V. Gt. Northern Eail. Co., 384.^ 
 
 — V. HoUroo^, 168. 
 
 — ii. Jonesi, 576. 
 
 — V. Peagrum, 921. 
 
 — V, Kandall, 966, 
 
INDEX OF CASES. 
 
 XXXIX 
 
 Bird i: Eelph, 940. 
 
 Birket v. Whitehaven Junction Eail. Co., 
 182, 412. 507. 
 
 — V. Willan, 485. 
 Bii-ks V. Silverwood, 953. 
 Birley r. Salford, 288. 
 Birmingham Canal Co. v. Lloyd, 1033. 
 
 — Chnrchwardens v. Shaw, 711, 
 
 725. 
 
 — Gas Co., Exparte, 345, 519. 
 Birt r. Barlow, 902. 
 
 Bishop V. Bryant, 543, 557. 
 
 — ■».TriiBteesofBedfordGharity,166, 
 
 169, 172, 178, 203, 207, 211. 
 IJissil V. Williamson, 964. 
 Ulack V. Baxendale, 485, 612. 
 Blaokborn v. Greaves, 556. 
 Blackborne v. Blackbome, 898. 
 Blackburn, Exparte, 347. 
 
 — (Mayor, &e., of) v. Parkinson, 
 
 751. 
 Blaokett v. Bradley, 104. 
 Blackham v. Pugh, 787. 
 Blackman r. Simmons, 1 92. 
 Blaokmore, Exparte, 1059. 
 Blades v. Arundel, 631, 652. 
 
 — V. Hlggs, 7, 310, 335, 361. 
 Blagg V. Sturt, 782, 790. 
 
 Blagrare v. Bristol Waterworks Co., 737, 
 
 761, 960. 
 Blaie v. Barnard, 570; 
 
 — V. Done, 945, 987. 
 
 — ■<,. Gt. Western Rail. Co., 487. 
 
 — V. Layton, 906. 
 
 — V. Midland Eail. Co., 423. 
 
 — ■». Nicholson, 439, 443. 
 
 — V. Peters, 237. 
 
 — V. Thirst, 205, 415. 
 Blakemore v. Br. and Ex. EaiL Co., 4, 
 
 14, 17, 427, 861, 917. 
 Blanchard v. Bridges, Q6, 128. 
 
 — V. Hill, 877. 
 Blanchenay v. Burton, 662. 
 Bland v. Bland, 882. 
 
 — V. Lipscombe, 102. 
 Blank v. Newcomb, 1041. 
 Blaymire w. Haley, 909. 
 Bleadcn v. Hancock, 439. 
 Blenkiron v. Gt. Central Gas Co., 252. 
 Blewett V. Jenkins, 104. 
 
 Blewitt V. Hill, 6, 26. 
 
 — V. 'I'regoning', 81, 102. 
 Bliss V. Hall, 162, 165. 
 Blisset's Case, 894. 
 Blofield «. Payne, 8, 864. 
 Blood V. Keller, 136. 
 Bloodworth v. Gray, 799. 
 Bloxam, v. Blsee, 50, 53. 
 
 — V. Hubbard, 411. 
 
 • — i;. Metri)politan Kail. Co., 1030. 
 
 — V. Sanders, 340. 
 Blundell v. Catterall, 112. 
 Blnnden v. Desert, 446. 
 Blunt V. Beaumont, 607. 
 Blyth V. Birm. Water Co., 419. 
 Blyther. Topham,,171, 172. 
 Blything Union ji.Warton, 195. 
 Boardman v. Boardman, 884, 899. 
 
 — V. Sill, 441. 
 Bock V. Gorrissen, 443, 441. 
 Bode (Bai'on de), Jn re, 1060. 
 
 Bodley v. Eeynolds, 378. 
 
 Bogg V. Midland Eail. Co., 761,752. 
 
 — V. Pear.se, 1069. 
 Boggett V. Prier, 923. 
 Bogue V. Houlston, 46> 
 Bonn V. Bogue, 42. 
 Boloh». Smith, 171,187. 
 BoUaud, Exparte, 347. 
 Bolton (Ld.)w. Tomlin, 565. 
 
 — V. Lane, and York. Eail., 438. 
 Bond V. Downton, 561. 
 
 Bonomi r. Backhouse, 7, 9, 58, 62, 63, 75, 
 
 149, 160, 609, 763, 971. 
 Bonsey v. Wordsworth, 948. 
 Booiman v. Brown, 916. 
 Boosey v. Davidson, 977. 
 
 — V. Wood, 964. 
 Booth V. Clive, 589, 591, 667. 
 
 — V. Taylor, 1035. 
 Boreham i: Boreham, 887. 
 Borries v. Hutchinson, 513. 
 Borrodaile v. Brunton, 871. 
 Borrows v. Ellison, 276. 
 Bos V. Helsham, 847. 
 Boss V. Litton, 386. 
 Bostock V. Bostock, 883, 884. 
 
 — V. Floyer, 855. 
 
 — V. N. Staff. Eail. Co. 771, 1030. 
 Boulding v. Tyler, 1014. 
 
 Boulter v. Peplow, 565. 
 Boulton's Case, 267. 
 Boulton, Exparte, 352. 
 
 — K. Bull, 50. 
 
 — V. Crowther, 735, 739, 933. 
 
 — 1), Eeynolds, 642. 
 
 — V. Watt, 50. 
 Bourke v. Warren, 820. 
 Bourne v. Alcock, 1019. 
 
 — V. Posbrooke, 372, 461. 
 
 — V. Gatliflfe, 486. , 
 
 — V. Liverpool (Mayor of), 756. 
 Bovill V. Orate, 1033. 
 
 — V. Finch, 48. 
 
 — V. Gobdier, 1031. 
 
 — V. Hitchcock, 1034. 
 Bowditch V. Balchin, 576. 
 
 — V. Wakefield Local Board, 229. 
 Bowen v. Evans, 1051. 
 
 Bower v. Hill, 8, 144, 152, 155. 
 Bowes V. Poster, 340, 373. 
 Bowler v. Nicholson, 661. 
 Bowles's Case, 254. 
 Bowman v. Taylor, 54. 
 Bowyer v. Cook, 270, 1018. 
 Box V. Green, 1050. , 
 Boyce, In re, 643. 
 
 — V. Bayliffe, 992. 
 
 — V. Higgins, 670. 
 
 Boyd V. Croydon Eail. Co., 839. 
 
 — V. Shorroek, 246. 
 Boydell v. M'Michael, 350. 
 Boyfield v. Porter, 750. 
 Boyle V. Brandon, 911. 
 
 — V. Tamlyn, 80, 114, 125, 139, 154, 
 
 266. 
 
 — V. Wiseman, 980. 
 Boys V. Pink, 477. 
 Boyson v. Coles, 342. 
 Bracegirdle v. PeacoCl^, 974. 
 
 — V. Orford, 992. 
 Bracey v. Carter, 404. 
 
xl 
 
 INDEX OF CASES. 
 
 Bradbee v. ChrU'e Hospital, 179. 
 Bradbuty v. QrinBell, 132. 
 Bradbyu. Southampton LocalBoard,750. 
 Bradley v. Arthur, 934. 
 y— V. Copley, 363, 371. 
 
 — V. Gill, 162, 167. 
 
 — V. Waterhouse, 19, 480, 988. 
 Bradshaw v. Eyre, 141. 
 
 — V. Vaughton, 600. 
 Bradworth v. Poshaw, 987. 
 Brady v. Todd, 863. 
 Braham v. Bustard, 877. 
 Braithwaite v. Cooksey, 522. 
 
 — V. Skinner, 88. 
 Bramley v. Chesterton, 314, 994. 
 Bramwell v. Eglinton, 525. 
 
 — V. Haloomb, 1032. 
 Brancker v. Molyneux, 370. 
 
 Brand v. HammerBmlth Kail. Co., 754, 
 
 757, 760. 
 Brandao v. Barnett, 445. 
 Brandling v. Barrington, 657. 
 Brandon v. Brandon, 524, 749. 
 
 — -0. Scott, 452, 454. 
 Brandt.!). Craddock, 606. 
 Branly v. S. Eastern KaiL Co., 493. 
 Brass ti. Maitland, 17, 860. 
 Brassington v. Llewellyn, 271, 277. 
 Bray v. Mayne, 429. 
 
 — V. Tracy, 253. 
 Brayne v. Cooper, 798. 
 
 Brazier?;. The Polytechmclnstitution,207. 
 Brecon (Mayor, &c., of) v. Edwards, 13. 
 Bree v. Holbech, 848. 
 Breedon v. Capp, 1046. 
 
 — V. Gill, 1040. 
 Ereese v. Jerdein, 592. 
 Bremner, Ex pcurte, 445, 882. 
 
 — V. Hull, 944. 
 Brent v. Haddon, 969. 
 Brest V. Lever, 305. 
 Brewer v. Drew, 378, 927. 
 
 — i;. Sparrow, 34. 
 Brewin v- Short, 346, 350. 
 Brewster v. Sewell, 978. 
 
 Briddon o. Gt. Northern Rail. Co., 469. 
 Bridge v. Grand Junction Kail. Co., 418. 
 
 — V. Wain, 850. 
 Bridges ». Bknchard, 94, 307. 
 
 — V. Hawkesworth, 334. 
 
 — V. North Lond. Bail., 383. 
 Bridgett v. Coyney, 691. 
 Bridgewater's (Dukeof) TrusteesK.Bootle- 
 
 eum-Linacre, 280. 
 Bridgland v. Shapter, 13. 
 Bridson v. Benecke, 1033. 
 Brierly v. Kendall, 376. - 
 Briggs, Ex pwrte, 841, 1053, 1068. 
 
 — V. Erelyn, 727. 
 
 — V. Mercht. Trad., &c., 43.8. 
 
 — o. Oliver, 18. 
 
 — V. Sowry, 519. 
 
 Bright V. Walker, 119, 120, 130, 298. 
 Brind v. Dale, 437, 468. 
 
 — V. Hampshire, 341. 
 Brine v. Bazalgette, 790. 
 
 — ■». Gt. West. Eail. Co., 295, 737, 769. 
 Brink v. Winguard, 865. 
 
 Brinsmead v. Hafrison, 361, 966, 969 
 
 Briscoe V. Drought, 65. 
 
 Bristol and Exeter K, Co. i;. Collins, 487 
 
 Bristow V. Eastman, 939. 
 
 British Columbia Sawmill Co. v. Netde- 
 
 ship, 512, 513. 
 British Empire Shipping Co. v. Somes, 
 
 440. 
 British Museum (Trustees of), v. Finuis, 
 
 221. 
 Britton V. S. Western Eail. Co. 990,1002. 
 Brittridge's Case, 799, 801. 
 Broad v. Ham, 615, 633. 
 Broadbent v. Imperial Gas Co., 77, 201, 
 737, 757, 761. 
 
 — V. Ledward, 454, 455. 
 
 — V. Eamsbotham, 65. 
 
 — V. Wilks, 104. 
 Broadwater v. Blot, 434. 
 Broadwood v. Granara, 495, 502. 
 Brock V. Copeland, 191. 
 Brocklehurst v. Lawe, 533. 
 Bromage v. Prosser, 778. 
 Bromley v. Holden, 535. 
 
 — V. Wallace, 904. 
 Brook V. Montague, 807. 
 
 — V. Rawl, 809. 
 Brooke v. Clarke, 990. 
 
 — V. Ewers, 1056. 
 
 — V. Pickwick, 472. 
 Brookes v. Brookes, 882. 
 
 — V. Titchborne, 817. 
 Brookman v. Wenham, 1050. 
 Brooks V. Blanshard, 820. 
 
 — ■<?. Hodgkinson, 662, 671. 
 
 — V. Warwick, 615. 
 Broom v. Davis, 402. 
 Broome v. Gosden, 821. 
 Broomhead, In re, 438. 
 Brough V. Homfray, 398. 
 Broughton's Case, 990. 
 Broughton v. Jackson, 603. 
 Brown's Case, 108. 
 
 — (Lady) Case, 142. 
 
 Brown v. Accrington Cotton Co. 187. 
 
 — V. Allen, 1000. , 
 
 — V. Annandale, 50, 54. 
 
 — V. Arundel, 530. 
 
 — V. Bateman, 336. 
 
 — V. Best, 65, 71. - 
 
 — V. Brown, 882, 884. 
 
 — V. BusseU, 166, 194. 
 
 — V. Chapman, 595, 599, 624, 730. 
 
 — V. Cocking, 950. 
 
 — V. Croome, 790. 
 
 — , V. Edgington, 849, 850. 
 
 — V. Elkington, 869. 
 
 — ■». Gibbons, 1009. 
 
 — V. Giles, 267. 
 
 — V. Glenn; 525. 
 
 — u. Heathcote, 354. 
 
 — V. Holyhead Local Board, 35, 71'5. 
 
 — v. Jarvis, 644, 677. . 
 
 — u. Lond. and N. W. Rail. Co., 
 
 948. 
 
 — V. MaUett, 226, 956. 
 
 — V. Met. Co., &c., 100, 634. 
 r— V. Nioholls, 85. 
 
 — V. Notley, 303. 
 . — V. Robins, 62. 
 
 — 1). Russell, 194. 
 
 — V. Shevill, 530. 
 
 — V. Smith, 799. 
 
 — V, Wilkinson, 422. 
 
INDEX OF CASES. 
 
 xli 
 
 Brown v. Windsor, 1 24. 
 — V. Wootton, 9fi6. 
 Browne v. Dawson, 268, 573. 
 
 — )'. Redmond, 1026. 
 Browning v. Newman, 957. 
 Brownlow v. Met. Board of Works, 205, 
 
 735. 
 Bruce i'. Helliwell, 83. 
 Brncker v. Fromoat, 419. 
 Brunswick (Duko of) v. Hanover (King 
 of), 31. 
 
 — V. Harmer, 819. 
 
 — V. Slowman, 681. 
 Brunt V. Mid. Rail Co., 474, 477. 
 Brunton v. HaU, 152, 307. 
 
 ' — 0. Hawkes, 54. 
 Bryant v. Foot, 101. 
 
 — I'. WardeU, 363. 
 Biydges v. Kilbuvn, 261. 
 
 — V. Stephens, 259. 
 Brydon v. Stewart, 188. 
 Bryson v. Wylie, 352. 
 Bubb V. Yelvertou, 237. 
 
 Buccleucli (Duke of) v. Met. Board of 
 
 Works, 748, 753, 754, 756. 
 Buchanan v. Findlay, 440. 
 — r. Rucker, 1062.- 
 Buckby v. Coles, 297. 
 Buckland v. Butterfield, 243. 
 
 — r. Johnson, 361, 966. 
 
 — V. PapiUon, 344. - 
 Buckle V. Bewes, 681, 1002. 
 Buckley v. Gross, 333, 677. 
 
 — ». Hann, 1044. 
 
 — V. Wood, 781. 
 Buckman v. Levi, 509. 
 Buckmaster v. Buckmaster, 885. 
 Budenberg v. Roberts, 1021. 
 Buggin V. Bennett, 1040, 1052. 
 BuUard v. Harrison, 297, 308. 
 Buller,^a;^ar<e, 1056. 
 
 — V. Michel, 982. 
 BuUock V. Bullock, 890. 
 Bunbury v. Matthews, 675. 
 Bunch V. Kennington, 549. 
 Burbridge, Ex parte, 359. 
 Burder v. Veley, 1038, 1040, 1041. 
 Burges v. Lamb, 236, 237. 
 Burgess v. Clements, 499, 501. 
 
 — V. I'reelove, 605. 
 
 — V. Gray, 147, 175. 
 
 — V. Great Western Eail. Co., 182. 
 Burke v. Bryant, 364. 
 
 Burland v. Kingston-upan-Hull Local 
 
 Board, 1069,rl083. 
 Burley v. Bethune, 723, 731. 
 Burling v. Harley, 668. 
 
 — V. Read, 292. 
 Burn V. Brown, 440. 
 
 — V. Morris, 328, 343'.- 
 Bumard v. Haggis, 938. 
 Bumby v. BoUett, 857. 
 Burne v. Richardson, 315, 518. 
 Bumes v. Pennell, 864. 
 Burnett v. Lynch, 15. 
 Buron v. Denman, 30, 599. 
 Burridge v. Nicholetts, 293, 310. 
 Burroughes v. Bayne, 321.' 
 Burrows v. Marcli Gas Co., 19. 
 Burry v. Perry, 1009, 1010. 
 Burton, In re, 1057, 1067. 
 
 Burton o. Hughes, 355, 362. 
 
 — V. Legros, 592, 664, 668. 
 Bury V. Bedford, 878. 
 
 Bush V. Beavan, 1081, 1083, 1084. 
 ly Green 399. 
 
 — 0. Martin, 740, 742, 1069, 1082. 
 
 — V. Parker, 601. 
 
 — V. Steinman, 174, 205. 
 Bushel V. Miller, 320. 
 Busst V. Gibbons, 614, 632. 
 Buszard ■;;. Capel, 526. 
 Butcher v. Butcher, 304, 573. 
 
 — V. Henderson, 1013. 
 
 — 0. L. and S, W. Kail. Co., 486, 
 489. 
 
 Butler V. Basing, 509. 
 
 — v. Hunter, 413, 415. 
 
 — V. Knight, 404, 405. 
 
 — -0. Wooloott, 491. 
 Butt V. G. W. Rail. Co., 479. 
 
 — V. Imperial Gas Co., 3, 772. 
 Butterfield v. Porrester, 401. 
 Butterworth ?;. Brownlow, 18, 472, 473. 
 Button V. Heyward, 797, 808. 
 Buxton V. Baughan, 327, 442. 
 
 — V. 'S. E. Rail. Co., 181, 487. 
 Bwlch-y-plwm Mining Co. v. Baynes, 840. 
 Byerley v. Prevost, 332. 
 
 Byles, In re, 749, 756. 
 
 Byne v. Moore, 634. 
 
 Byrne v. Boadle, 169, 175, 179, 419. 
 
 Bywater v. Richardson, 168. 
 
 Oachak Co., Re, 841. 
 
 Caddy v. Barlow, 628, 631. 
 
 Cahill V. L. and N. W. Rail. Co., 489. 
 
 CailifE V, Danvers, 433. 
 
 Caillaud's Pat. Tan. Co. v. Caillaud, 1026. 
 
 Cairns v. Robins, 432, 485. 
 
 Calabar, The, 391. 
 
 Calcraft v. Harborougli (Earl), 904. 
 
 Calder and Hibble Navig. Co. o. Pilling, 
 
 35, 37, 38. 
 Calder v. Halkett, 639, 687. 
 Caldwell, Expwrte, 352. 
 Caledonian Rail. Co. v. Carmichael, 1023. 
 
 — 0. Sprot, 89, 93. 
 
 — V. Ogilvy, 73.5, 754, 
 
 758. 
 Calmady f. Rowe, 281. 
 Calne's (Borough of) Case, 1067. 
 Calvert v. Jolifte, 680. 
 Calye's Case, 498. 
 Camac v. Warriner, 849. 
 Cambrian Railways Co.'s Scheme, 653. 
 Cameron v. Charing-cross Rail. Co., 754. 
 755 
 
 — v. Wyncii, 377. 
 Campbell v. Allgood, 237. 
 
 — V. Mayor, &c. of Liverpool, 279. 
 
 — V. Scott, 42, 1032. 
 
 — 1). Spottiswoode, 795. 
 Campion v. Benyon, 51. 
 Canadian Prisoners' Case, 718. 
 Cane v. Chapman, 39, 934. 
 Oanham v. Barry, 835, 843, 847, 868. 
 
 — V. Fisk, 86, -95. 
 
 — -K. Jones, 48. 
 Cann v. Clipperton,'590. 
 Caimee v. Spanton, 331. 
 Cannington *. Nuttall, 51. 
 
xlii 
 
 INDEX OF CASES. 
 
 Canot V. Hughes, 325, 328. 
 Canterbury (Lord) v. The Queen, 249. 
 
 — (Viscount) V. Att.-Gen., 249. 
 Capel V. Jones, 821. 
 
 — V. Powell, 937. 
 Capella, The, 394, 422. 
 Oai-d V. Card, 958. 
 
 — V. Case, 23, 209. 
 
 Cardigan (Earl of) v. Armitage, 84, 98, 
 
 100. 
 Cargill V. GargiU, 881, 885, 887. 
 Carington i. Wycombe Kail. Co., 771, 
 
 772. 
 Carlisle (Mayor of) v. Graham, 154, 282. 
 Carlyon v. Levering, 71, 122, 209. 
 Carnarvon (Earl of) v. Villebois, 980. 
 Came v. Brice, 921. 
 Games v. Nisbitt, 259. 
 Carpenter v. CoUius, 274. 
 
 — V. Mason, 704. 
 
 — V. Pearee, 655. 
 — • V. Smith, 55. 
 
 — V. Wall, 914. 
 
 Carpue v. L. and. B. Rail. Co., 384, 765. 
 Carr v. Benson, 100, 101. 
 
 — V. Foster, 129. 
 
 — V. Hood, 794. 
 
 — V. Lambert, 106. 
 
 — V. E. Exchange Ass. Co., 958. 
 Carratt v. Morley, 730. 
 
 Carrill v. Pack, 110. 
 Carrington v. Koots, 918. 
 
 — V. Taylor, 10, 162. 
 Carruthers v. Payne, 256, 357. 
 Cariilake v. Mapledoram, 799. 
 Carstairs v. Taylor, 69. 
 Carter v. Crick, 862. 
 
 — V. James, 967. 
 
 — V. Johnson, 372. 
 Carter v. Jones, 975. 
 Cartier v. Carlisle, 875. 
 Cartledge v. Cartledge, 893. 
 Oartwright v. Amatt, 63. 
 
 — V. Earner, 49. 
 
 — V. "Wright, 820. 
 Gary v. Longman, 42, 44. 
 Casanova v. The Queen, 365. 
 Casburn v. Reid, 629. 
 Cashill V. Wright, 501. 
 
 Cast Plate, Governor, &c., of,.». Mere- 
 dith, 739. 
 Castellaiu v. Thompson, 441. 
 Castle, Ex parte, S51. 
 Castleman v. Hicks, 640. 
 Castrique <i). Behrens, 611, 612. 
 
 -^ V. Imrie, 966. 
 Caswell V. Cook, 13. 
 
 — V. Worth, 399.' 
 Catchmade's Case, 1043. 
 
 Oatchpole v. Ambergate, &c.. Kail. Co., 
 
 15, 932. 
 Cater v. Chignell, 670. 
 Gaterhara Rail. Co., He, 516. 
 Catherwood v. Caslon, 900. 
 Gator V. Lewisham Board of Works, 745, 
 
 770. 
 Catterall «. Kenyon, 366, 936. 
 Gatteris v. Cowper, 302. 
 Caudle r. Seymour, 693. 
 Caudwell v. Hanson, 196, 
 Cave V. Coleman, 844, 
 
 Gave V. Mountain, 684, 695. 
 Gavey «.,Lidbitter, 163, 165. 
 CawkweU v. Russell, 138, 163, 197. 
 Chabot, In re, 1038. 
 Ghadwiok v. Marsden, 84, 86. 
 
 — V. Trower, 179. 
 Chalk V. Wyatt, 316. 
 Chamberlain ij. Goodwin, 811. 
 
 — V. King, 689, 590, 591. 
 
 — •,/. West End, &c.. Rail. Co., 
 
 763, 764, 755. 
 Chamberlaine v. Chester and Birk. Rail. 
 
 Co., 976. 
 Chamberlayne v. Dummer, 237. 
 Chambers v. Bernasooni, 982. 
 
 — V. Caulfield, 903. 
 
 — V. Robinson, 633. 
 Champernown v. Soott, 446. 
 Champneys v. Arrowsmith, 279. 
 
 .Chaudeler v. Doulton, 537, 668. 
 
 — V. Thompson, 128. 
 Chandelor v. Lopus, 844. 
 Chancy v. Pa^yne, 706. 
 Ghannon v. Patch, 369. 
 Chanter v. Hopkins, 849. 
 Chantler v. Liudsey, 922. 
 Chapman v. Allen, 440. 
 
 — V. Chapman, 405. 
 
 — V. Cripps, 221. 
 
 — V. Jones, 280. 
 
 — V. Monm. Rail. Co., 659. 
 
 — V. Pickersgill, 39. 
 
 — V. Rothwell, 957. 
 
 — ■». Speller, 339, 657, 848. 
 ^ V. Van Toll, 420. 
 
 Ghappell v. Davidson, 960. 
 Chappie V. Watt, 1026. 
 Charles v. Charles, 890. 
 Charlwood v. Greig, 191. 
 Chase v. Westmore, 43iJ. 
 Chasemore v. Richards, 59, 64, 67, 68, 71. 
 Chauntler v. Robinson, 178, 180, 206. 
 Ghauvin v. Alexandre, 659. 
 Gheasley v. Barnes, 605. 
 Cheese v. Scales, 777. 
 Oheesman v. Bxall, 442, 453, 461, 508, 
 611. 
 
 — V. Hardham, 106. 
 Cheetham v. Hampton, 147, 291. 
 Chelsea Vestry 11. King, 163. 
 Cheltenham, &.e., Carriage and Waggon 
 
 Co., Me, 640. 
 Cherry v. Colonial Bank of Australasia, 
 
 864. 
 Chester v. Holyhead Rail. Co., 183. , 
 Chetham v. Hoare, 276. 
 
 — *. Williamson, 100, 113. 
 Chetwynd v. Ghetwynd, 891. 
 Cheveley v. Moms, 1005. 
 
 Chew V. Holroyd, 960, 1044. 
 Chichester v. Lethbridge, 201, 225. 
 Child V. Affleck, 789. 
 
 — V. Chamberlain, 544. 
 
 — V. Hudson's Bay Co., 38. 
 
 — V, Mann, 656. 
 
 Childers v. Wooler, 835, 846, 866. 
 Chilton «. Carrington, 451, 462. 
 
 — V. Lend. & Croy. Rail. Co., 38, 585. 
 Chinn v. Morris, 998. 
 Chinnery v. Viall, 321, 992.- 
 Chinnocli v. Sainsbury, 1029, 
 
INDEX OF CASES. 
 
 xliii 
 
 Chivers v. Savage, 606, 1043. 
 OhoUet V. Hoffman, 54. 
 Christie v. Cowell, 799. 
 
 — V. Griggs, 385. 
 
 — V. Unwin, 706. 
 Christopherson v. Bare, 570, 598. 
 Church V. Barnet, 956. 
 
 — V. Inclos. Comm., 1038. 
 Churchill v. Siggers, 613, 623. 
 Churchward v. Coleman, 643, 1056. 
 
 — V. Study, 334. 
 Churton v. Frewen, 280. 
 Gibber v. Sloper, 903. 
 Clapham v. Shillito, 845, 867. 
 Clare v. Maynard, 993. 
 Clark V. Armstrong, 192. 
 
 — V. Blything, 258, 1001. 
 
 — V. Calvert, 928. 
 
 — I/. Chamberlain, 325. 
 
 — 11. Treeman, 777. 
 
 — V. Gaskarth, 528. 
 
 — V. Newsam, 609, 1000. 
 
 — V. Nicholson, 680. 
 
 — V. Webster, 192. 
 
 — V. Woods, 720. 
 Clark's Patent, 48. 
 Clarke v. Clark, 158. 
 
 — v. Cogge, 87. 
 
 — v. Dixon, 840. 
 
 — V. Earnshaw, 432, 433. 
 
 — V. Hutching, 477. 
 
 — V. Leicester, &c.. Canal Co., 1077. 
 
 — V. Postan, 620, 630. 
 
 — u Sarum (Bishop of), 1059, 1066. 
 
 — ■!>. Spence, 354. 
 
 — ■;;. Tinker, 106. 
 
 — V. "Watson, 406. 
 Clay V. Oxford, 945. 
 
 — r. Koberts, t77. 
 
 — V. Willan, 19. 
 Clayards v. Dethick, 401. 
 
 , Clayton v. Corby, SI, 113, 132, 295, 298, 
 301. 
 
 — V. Eenton, 952. 
 Cleeve v. Mahany, 165, 215. 
 Clegg V. Dearden, 969. 
 Cleland, Ex parte, 445. 
 Clement ■». Chivis, 777. 
 
 — V. Milner, 547. 
 Clements v. Flight, 460. 
 
 — V. Lambert, 140. 
 
 — V. Ohrly, 632. 
 Clerk V. Gilbert, 450. 
 Cliff V. Mid. Rail., 385. 
 Clifton V. Hooper, 679. 
 Climie v. Wood, 246. 
 Clinton v. Clinton, 886. 
 Clossman v. White, 456, 460. 
 Clothier v. Chapman, 981. 
 
 — V. Webster, 788, 750. 
 Cloughi). L. and N. W. EaU., 340. 
 Clout V. Clout, 892. 
 
 Clowes V. Beck, 1033. 
 
 — V. Hughes, 518. 
 Coats V. Chaplin, 605. 
 
 — r. Clarence Bail. Co., 746, 770. 
 Cobb V. Mid. Wales Rail. Co., 1023. 
 Cobban v, Downe, 434. 
 
 Cobbett V. Glutton, 32.3. 
 
 — V. Grey, 570. 
 
 ,- V. Wheeler, 1007, 
 
 Cock V. Gent, 763. 
 Cockayne v. Hodgkinson, 788. 
 Cockoroft V. Smith, 672, 574, 606. 
 Cocker v. Cowper, 82, 151. 
 
 — V. Cardwell, 194. 
 
 — V. Grompton, 291, 305. 
 
 — V. Musgvove^ 656. 
 Cookie V. L. and S. E. Rail., 383. 
 Cocks V. Chandler, 876. 
 Codrington v. Lloyd, 671, 674. 
 Coe V. Wise, 740. 
 
 Coffin V. ColEn, 261. 
 
 Coggs V. Bernard, 426, 427, 428, 430, 
 
 435, 436, 455, 457, 470, 917. 
 Cohen, HJxpaHe, 346, 369. 
 
 — V. Huskisson, 582. 
 
 — «. Morgan, 618, 730. 
 Colchester (Mayor of) v. Brooke, 22, 176, 
 
 198, 282.. 
 Cole V. Forth, 232, 233. 
 • — V. Foxman, 106. 
 
 — V. Goodwin, 473. 
 
 — V. Green, 8, 232. 
 
 — V. Maundy, 310, 319, 369. 
 
 — 6. Turner, 570. 
 Colegrave v. Dios Santos, 323. 
 Coleman v. Coleman, 887. 
 
 — V. Foster, 100. 
 
 — V. Riches, 934. 
 Colemere, Me, 347. 
 Oollard v. Allison, 52. 
 
 — V. S. E. Rail. Co., 991. 
 
 CoUen V. Wright, 853, 854, 871, 872, 993. 
 CoUett V. Curling, 521. 
 
 — v. Foster, 696, 671. 
 
 — V. Lond. and N. W. Rail. Co., 
 
 383, 606, 917. 
 Collins D. Bristol and Exeter Rail. Co., 
 487. 
 
 — V. Cave, 26, 836. 
 "— «. Evans, 835, 846. 
 
 — V. Forbes, 356. 
 
 — -v. Martin, 446. 
 
 . — V, Ronison, 675. 
 
 — V. Ross, 726. 
 CoUins' Go. v. Brown, 875. 
 
 — V. Reeves, 877. 
 
 Gollis V. Selden, 15, 189, 207, 398. 
 Colnaghi v. Ward, 46. 
 Colwell V. Reeves, 919. 
 Colyer v. Speer, 657. 
 Compton V. Richards, 95. 
 Concordia, The, and The Spring, 393. 
 Connell v. -Watson, 1025. 
 Conradi v. Oonradi, 905. 
 Constable v. Nicholson, 102. 
 Conybeare v. Farries, 1021. 
 Cook, Hx parte, 1066. 
 
 — V. BatcheUor, 811. 
 
 -- i: Bath fMayor of), 134, 136. 
 
 — V. Beal, 574. 
 — . V. Cox, 812. 
 
 — f. Field, 816, 826. 
 
 — V. Ipswich Local Board, 229. 
 
 — V. Leonard, 689, 690. 
 
 — V. Palmer, 646. 
 
 — K.Ward, 776. 
 Cooke V. Cooke, 884. 
 
 — ' V. Forbes, 215. 
 
 — V. Hemming, 360. 
 
 — I', Hughes, 823, 
 
xliv 
 
 INDEX OF CASES. 
 
 Cooke v. Jackson, 291. 
 
 — V. Waring, 23. 
 
 — 6-. Wildes, 783, 830. 
 Coombcr v. Howard, 622. 
 Coombs V. Beaumont, 350. 
 
 — V. Coombs, 882. 
 
 — V. Bristol and Exeter Eail. Co., 
 
 504. 
 
 — V. Noad, 469. 
 Cooper V. Barber, 66. 
 
 — V. Bill, 438. 
 
 — ■;;. Blandy. 664. 
 
 — -i: Booth, 620. 
 
 — V. Gordon, 1064. 
 
 — t'. Harding, 596. 
 
 — V. Hubbuck, 117, 128, 131, 158, 
 
 210, 216, 295. 
 
 — V. Lond. & S. W. Hail. Co., 515. 
 
 — V. Marshall, 110, 196, 267. 
 
 — V. Shepherd, 969. 
 -■ wrsiade, 1023. 
 
 — V. Stephenson, 406. 
 
 — V. Wandsworth Board, &c., 296, 
 
 696, 1062. 
 
 — V. Willomat, 453. 
 
 — V. WooUey, 163. 
 Copeland v. N. East. Eail. Co., 1081. 
 
 — V. Stephen?, 344. 
 Copley V. Burton, 494. 
 Coppinger v. Grubbins, 259. 
 Corbet's (Sir Miles) case, 106. 
 Corbett v. Brown, 647, 838, 864. 
 
 — V. Gen. St. Nav. Co., 948. 
 
 — V. Ludham, 1037. 
 Corby v. Hill, 145, 149, 170. 
 Corner v. ChampneySi 373. 
 Cornfoot v. Towke, 862. 
 CorniU v. Hudson, 970. 
 Cornish w. Hockin, 892. 
 
 — v. Keene, 49, 54. 
 
 — •</. Stubbs, 82. 
 Comman v. E. C. Eail. Co., 183. 
 Cornwall v. Metrop. Com. of Sewers, 173. 
 
 — V. Kichardson, 633. 
 Cornwell v. Sanders, 699. 
 Corranee v. Corrance, 891. 
 
 Corrigal v. Lond. and Bl. Rail. Co., 760. 
 
 Cosens r. Bognor Eail. Co., 773. 
 
 Coshay v. Tute, 477. 
 
 CoBsey V. Lond. and Brighton Eail., 963. 
 
 Costar V. Hetherington, 601. 
 
 Costard v. Wingfield, 107. 
 
 Costello V. Corlett, 1 025. 
 
 Costworlh V. Betison, 540. 
 
 Cotohing V. Bassett, 157, 216, 1033. 
 
 Cotes V. Michill, 661,,674. 
 
 Cotesworth, v. Spokes, 546. 
 
 Cotterell v. Griffiths, 136. 
 
 — u. Jones, 622. 
 Cotterill v. Hobby, 147. 
 
 — V. Starkey, 598. 
 Cotton r. Browne, 628. 
 
 — V. Bull, 536. 
 
 ■ — V. James, 624. 
 
 — V. Wood, 18, 386. 
 Counch V. Steel, 35, 39, 40. 
 Coulson, V. White, 315. 
 Coulthart v. Coulthart, 887. 
 Conpland v. Hardingh^m, 172. 
 Courtald v. Legh, 128. 
 Cousens v. Hall, 162. 
 
 Coutts V. Gorham, 95. 
 OoTentry v. Gladstone, 342. 
 
 — V. Lond. Brighton, and S. C. 
 
 Eail. Co., 761, 762. 
 Coward v. Baddeley, 570, 571. 
 
 — V. Gregory, 941. 
 
 Cowell 1}. Amman Coll. Co., 1015, 1017. 
 
 — u. Simpson, 441. 
 Cowing V. Cowing, 904. 
 Cowlam V. Slack, 105. 
 Cowles V. Potts, 779. 
 
 Cowley «. Mayor, &c., of Sunderland, 186 
 
 399, 427, 931. 
 Cowling V. Higginson, 152. 
 Cowper (Earl) v. Baker, 258, 316. 
 Cox V. Bent, 520. 
 
 — V. Burbidge, 22, 23, 265. 
 
 — V. Cox, 1032. 
 
 — V. Feeney, 794. 
 
 — V. Glue, 61, 268, 301. 
 
 — V. Gt. East. Rail. Co., 467, 491. 
 
 — V. Land and Water Journal, 43. 
 
 — V. Lee, 777, 821. 
 
 — ■;;. Leech, 405. , 
 
 — V. London (Mayor of), 1039, 1045. 
 
 — V. Matthews, 95. 
 -^ V. Mitchell, 964. 
 
 — V. Mousley, 268. 
 
 — V. Keid, 589. 
 Coxe V. Smith, 28. 
 
 Coxen V. Gt. West. Rail. Co., 487. 
 
 Coxhead v. Richards, 786, 824. 
 
 Crabb v. Crabb, 885. 
 
 Cracknell v. Mayor of Thetford, 177, 933. 
 
 Craft V. Boite, 1010. 
 
 Crafter Metrop. Eail. Co., 183. 
 
 Craig V. Hasell, 623. 
 
 Cramer v. Mott, 535, 536. 
 
 Cranch v. White, 328. 
 
 Cranden v. Walden, 801. 
 
 Crane v. London Dock po., 337 
 
 — V. Price, 50, 52. 
 
 Cranweil v. London (Mayor of), 773. 
 Craven, JEx pwrte, 347. 
 
 — V. Smith, 1014, 1016. 
 
 — u. Stubbins, 717. 
 Crawford's Case, 640. 
 Crawford v. Middleton, 798, 805. 
 
 — V. Satchwell, 658. 
 Crawshay v. Homfrey, 441. 
 
 — V. Thompson, 865, 864, 870. 
 Crease v. Barrett, 981. 
 
 Crepps V. Burden, 693, 698. 
 Creuze v. Hunter, 895. 
 Crewe v. Crewe, 889. 
 Cristie v. Cowell, 799. 
 Crocker v. Molyneux,- 336. 
 Croft V. Alison, 388, 419, 420. 
 
 — V. Day, 876. 
 
 -r- V. Lond. and K. W. Rail. Co., 767, 
 760. 
 
 — V. Stevens, 779. 
 Crofts V. Brown, 797. 
 
 — V. Haldane, 153. 
 
 — V. Waterhouse, 382. 
 Crompton ii. Ibbotson, 49. 
 CronshaWD. Chapman, 668, 671, 846. 
 Crook V. DowUng, 629. 
 
 Crosby v. Leng, 31. 
 
 — V. Wadsworth, 302.^~ 
 Cross, JSx pwrte, 718. 
 
INDEX. Oi" OASES. 
 
 xlv 
 
 Cross V. Andrews, 495, 500. 
 
 — V. Andvoes, 473. 
 
 — ■«. Lewis, 115, 127. 
 Crosse v. Gardner, 848. 
 Crossfield v. Such, 462, 464. 
 Crossley v. Beverley, 51. 
 
 — V. Lightowler, 66, 70, 76, 96, 136, 
 
 138, 216, 217, 282. 
 Crouch V. Great Northern Rail. Co., 493. 
 
 — V. Great "West. Kail. Co., 487. 
 
 — V. Lend, and N. W. Rail. Co., 
 
 466, 476. 
 Crowder v. Long, 646. 
 
 — V. Tinkler, 217. 
 Crowley v. Page, 978. 
 Crozer v. Pilling, 625. 
 Crozieri». Cundey, 721, 722. 
 Crump V. Day, 655. 
 
 — V. Lambert, 215. 
 Cubitt V. Porter, 28fi, 930. 
 Cubley v. Cubley, 892. 
 Cudlipp V. Cudlipp, 885. 
 CuUen V. Morris, 28. 
 
 — V. Thomson, 840. 
 Culling V. Tuffnell, 245. 
 CuUwick V. Swindell, 246. 
 Cumberland v. Copeland, 43. 
 Cumpston v. Haigh, 439, 459. 
 Cunnington v. Cunnington, 887, 888. 
 Curlewis v. Broad, 14. 
 
 — V. Carter, 1035. 
 -^ 17. Laurie, 294. 
 
 — V. Momington, 972. 
 Curry.ii. Walter, 791. 
 Curtis, Ee, 896. 
 
 — V. Curtis, 883. 
 
 — V. Drinkwater, 417. 
 
 — V. MUls, 191. 
 
 — V. Piatt, 1034. 
 
 — V. Wheeler, 518. 
 Cuthbertson i;. Parsons, 413. 
 Cutler V. Dixon, 780. 
 
 Czech V. Gen. St. Nav. Co. 18, 461. 
 
 Da Costa v. The Eussia Co., 1066. 
 Daines v. Hartley, 822. 
 Daintry v. Brocklehurst, 270, 304. 
 Dale V. Birch, 667. 
 
 -, i;. Hall, 471,507. 
 
 — ■». Wood, 606. 
 ])alton V. Mid. Co. Rail. Co., 921. 
 
 — V. S. E. EaU. Co., 424. 
 
 — V. Whitten, 526. 
 Dalyell v. Tyi-er, 24, 412. 
 Damerell v. Protheroe, 985. 
 Dauby v. Lamb, 1011, 1013. 
 Dand v. Kingscote, 87. 
 
 Daniel t'. Anderson, 86, 120, 141. 
 
 — V. Graeie, 520. 
 
 — V. Metrop. Kail. Co., 384. 
 
 — V. North, 115, 154. 
 
 — V. Wilson, 765. 
 Daniels v. Fielding, 625. 
 
 — V. Potter, 170, 174, 983. 
 Dann v. Spurrier, 156. 
 
 Dansey v. Richardson, 431, 43-3, 504. 
 Danvers v. Morgan, 592. 
 Darby v. Hams, 526. 
 
 — V. Ouseley, 823, 975, 977. 
 
 — V. Waterlow, 652. 
 Darcy f. AUin, 48, 
 
 D'Arcy (Lord) v. Askwith, 234. 
 Dare v. Heathcote, 152. 
 
 — V. Hopkins, 333. 
 
 — V. Valley Rail. Co., Me, 756. 
 Darley v. The Queen, 1065. 
 Darling v. Clue, 130. 
 
 Daunt V. Crocker, 280. 
 Davenport i;. Rylands, 1029, 1031. 
 Davey v. Chamberlain, 386. 
 
 — V. Mason, 477. 
 
 — V. Warne, 768. 
 Davidson v. TuUoch, 933, 990. 
 Davies v. England, 187. 
 
 — V. Jenkins, 4, 579, 657. 
 
 — V. Lond. and Blackw. Rail. 179. 
 
 — V. McHenry, 1047. 
 
 — V. Mann, 22, 198. 
 
 — ■». Marshall, 128, 156,217,307, 973. 
 
 — V. Nicholas, 324. 
 
 — -0. Price, 955. 
 
 — V. Sear, 87. 
 
 — V. Solomon, 802. 
 
 — V, Stacey, 560. 
 
 — V. Stear, 87. 
 
 — u. Stephens, 115, 151, 223, 308. 
 
 — V. Vernon, 323, 936. 
 
 — V. Williams, 195, 196, 909, 912. 
 Davis V. Bowsher, 445. 
 
 — V. Curling, 764, 766. 
 
 — V. Danks, 362. 
 
 — 17. Gardiner, 802. 
 
 — V. Gyde, 525. 
 — V. James, 505. 
 
 — If. Jones, 243. 
 
 — V. Living, 353. 
 
 — V. Lond. and N. W. Kail. Co., 463 
 
 — V. Nest, 458. 
 
 — li. Noake, 619. 
 
 — V. North West. Rail. Co., 511,991. 
 
 — V. Oswell, 379. 
 
 — V. Russell, 577, 578, 603. 
 
 — 17. Swansea (Mayor of), 764. 
 
 — 0. Symonds, 868. 
 
 — V. Thomas, 1025. 
 Davison v. Duncan, 794. 
 
 — V. Gill, 282. 
 
 — V. Wilson, 269, 294. 
 Daw V. Eley, 640, 1031. 
 
 Dawes r. Hawkins, 221, 222, 224. 
 
 — V. Peck, 504. 
 Dawkesi). Coveneigh, 31. 
 
 bawkius V. Paulet (Lord), 605, 783. • 
 
 — V. Rokeby-(Lord), 605, 621. 
 Dawson v. Ohamney, 500. '« 
 
 — i>. Cropp, 519, 539, 555. 
 
 — V. Manoh. &o. Kail. Co., 384. 
 
 — V. Van Sandau, 6^2. 
 
 — V. Willoughby - with - Sloothby, 
 
 227, 228. 
 
 — ■;;. Wood, 651. 
 Dawtry v. Huggins, 265. 
 Day V. BuUer, 800. 
 
 — V. Carr, 654. 
 
 — 17. Day, 273. 
 
 — V. King, 706. 
 Dayrell v. Hoare, 294. 
 Dean v. Branthwaife, 388. 
 
 — V. Hogg, 607. 
 
 — V. Peel, 908. 
 
 — V. Taylor, 606 
 Deane v. Clayton, 168, 
 
xlvi 
 
 INDEX OF CASES. 
 
 Deane v. Keate, 429. 
 Dearden v. Townaend, 493. 
 Death, jEx parte, 1038. 
 
 — V. Harrison, 670. 
 De Beauvoir v. Owen, 560. 
 
 De Crospigny v. Wellesley, 775, 776. 
 
 Deeble v. Linehanf, H5, 119. 
 
 Deere v. Guest, 317. 
 
 Deering v. Moor, 290. 
 
 Degg V. Midland Eail. Co., 409. 
 
 De Gondouin v. Lewis, 998. 
 
 De Haber v. Portugal (Queen of), 1038. 
 
 Delacroix v. Thevenot, 818. 
 
 Delamere (Lord) v. The Queen, 1073. 
 
 De la Rue v. Forteacue, 1036. 
 
 Delegal v. Highley, 628, 633. 
 
 Delany v. Metrop. Board of Works, 760. 
 
 Delfe V. Delamotte, 41. 
 
 Delisser v. Towne, 621. 
 
 Dempster v. Dempster, 889, 891. 
 
 Dendy v. SimpsQn, 283, 284. 
 
 Dengate v. Gardiner, 922. 
 
 De Nicholls v. Saunders, 521, 524, 
 
 Dennett v. Grover, 306. 
 
 Dennis v. Pawling, 999. 
 
 Denston v. Ashton, 1026. 
 
 Dent V. Auction Mart Co., 76. 
 
 — V. Dent, 905. 
 
 — V. Turpin, 875. 
 
 Denton v. Gt. North. Kail. Co., 468, 852, 
 864. 
 
 — i: Maeneil, 840. 
 
 — V. Marshall, 1039, 1045. 
 Derby (Earl of) v. Bury ImproTement 
 
 Commissioners, 194. 
 Dereoourt v. Corbishley, 581. 
 Dering v. Dering, 887. 
 Deroene v. Pairie, 51 . 
 DcRothschild v. K. M. St. P. Co., 433, 
 
 437. 
 De Boufigny v. Peale, 404. 
 Devaux v. Steinkeller,'839, 864. 
 Devonshire (Duke of) v. Elgin, 82, 156, 
 
 1033. 
 Dewell V. Sanders, 267. 
 Dews V. Biley, 644. 
 Dexter v. Hayes, 978. 
 D'Eyncourt v. Gregory, 242. 
 Dibble v. Bowater, 535. 
 Dibdin v. Swan, 795. 
 Dickenson v. Watson, 2, 381. 
 Dickinson v. Coward, 926. 
 
 V. Pollett, 869. 
 
 — V. North-East. Rail. Co., 408. 
 .Digby V. Thompson, 776. 
 
 Dignam v. Baily, 1025. 
 
 Dimes v. Grand Jun. Can. Co., 638, 714. 
 
 — V. Petley, 175, 198. 
 Dimmook v. Hallett, 847.. 
 
 — V. North Staff. Rail. Co., 738. 
 Dimsdale v. Lond., Brighton, and S. 
 
 Coast Eail. Co., 1015, 1016. 
 Dingle v. Hare, 995. 
 Dirks V. Richards, 331. 
 Ditcham v. Bond, 306. 
 Dixon V. BeU, 381, 417, 918, 996. 
 
 — V. Enoch, 819. 
 
 — V. Fawcus, 6, 875. 
 
 — II. Holden, 777. 
 
 — V. Smith, 998. 
 
 Dixon V. Stansfeld, 444, 
 Dobell V. Stevens, 847, 868. 
 Dobree v. Napier, 31. 
 Dobson V. Blackman, 289. 
 -- V. Blackmore, 146. 
 Dockwray v. Dickenson, 364, 376. 
 Dod V. Monger, 540. 
 Dodd V. Burchall, 86, 141. 
 
 — v. Holme, 179. 
 
 — -o. Norris, 913, 914. 
 
 — V. Robinson, 801. 
 Dods V. Evans, 1025. 
 Dodwell V. Burford, 571. 
 Doe V. Arkwright, 985. 
 
 — V. Beckett, 275. 
 
 — u. Benham, 275. 
 
 — ■„. Billett, 275. 
 
 — V. Bridges, 39. 
 
 — V. ChalUs, 315. 
 
 — V. Coombes, 277. 
 
 — V. Coulthred, 985. 
 
 — v. Davidson, 83. 
 
 — V. Filliter, 997, 1024. 
 
 — V. Gartham, 1062. 
 
 — V. Gower, 275. 
 
 — V. Hampson, 284. 
 
 — V. Harlow, 315. 
 
 — V. Hinde, 275. 
 
 — V. Johnson, 270. 
 
 — V. Jones, 1064. 
 
 — V. Kemp, 284. 
 -- u. Laming, 495. 
 
 — V. Leeds and Bradford Rail. Co., 
 
 747. 
 
 — V. Massey, 278. 
 
 — V. McKaeg, 1064. 
 
 — ■». Moore, 273. 
 
 — V. Morris, 564. 
 
 — V. Murless, 674. 
 
 — V. Pearsey, 283. 
 
 — V. Penfold, 270. 
 
 — 1). Phillips, 274. 
 
 — V. Pulman, 985. 
 
 — V. Reed, 114. 
 
 — V. Eock, 273. 
 
 — v^ Somerton, 979. 
 
 — V. Stacey, 981, S86. 
 
 — V. Stanton, 272. 
 
 — V. Thorn, 662. 
 
 — V. Trye, 647. 
 -■ V. Turford, 979. 
 
 — V. Wood, 100, 113. 
 DonaM v. Suckling, 331, 429, 450. 
 Donaldson v. Beckett, 41. 
 
 — V. Gillotfc, 21. 
 Donfordj'. EUys, 315. 
 Doorman v. Jenkins, 426, 430, 436, 456. 
 Dorchester (Mayor of) i). Ensor, 13. 
 Don-ington v. Carter, 368. 
 DoBwell V. Impey, 637, 641. 
 Douglas V. Corbett, 632. 
 — ' V. Yallop, 644. 
 Doulton V. Met. Board of Works, 1023. 
 Doust V. Slater, 766. 
 Dovaston v. Payne, 267. 
 Dover, Sx parte, 353. 
 
 — V. Mills, 432. 
 
 — V. Eawlings, 558. 
 Dowding v. Gt. West. Eail. Co., 1052. 
 Dowell V. Gen. Steam Nav. Co., 393. 
 Dowglafis V. Kendall, 98. 
 
INDEX OF CASES, 
 
 xlvii 
 
 Dowling V. Betjemann, 463, 1035, 
 Down V. Hailing, 844. 
 Downes v. Price, 841. 
 Downey's Case, 719. 
 Downing v. Butcher, 633. 
 
 — r. Capel, 592. 
 Downshire (Marquis of) v. Lady Sandys, 
 
 237. 
 Downton Overseers, Ex parte, 105S. 
 Dowse, The, 953. 
 Doyle V. Falconer, 640. 
 DracaoUi n. Anglo-EgyptiSn Nav. Co., 
 
 342. 
 Drake v. Beckham, 927. 
 
 — V. Sykes, 646, 676. 
 Draper v. Pulkes, 936. 
 
 — V. Sperring, 194. 
 Dresser v. Bosanquet, 449. 
 Drewell v. Towler, 80. 
 Drummond v. Sant, 273, 274. 
 Drury r. Molina, 258. 
 
 Duberley v. Gunning, 903, 1003, 1004. 
 
 Dubois ». Keats, 617, 618. 
 
 Du Best V. Beresford, 999. 
 
 Du Boolay r. Du Boulay, 874, 877. 
 
 Duckworth v. Johnson, 409, 420. 
 
 Duddell V. Simpson, 847. 
 
 Duddeu r. Guardians of Clutton Union, 
 
 65. 
 Dudley y. Smith, 382. 
 Dudley Can. Nav. Co. v. Grazebrook, 91. 
 Dudley and West Bromw. Bank Co. v. 
 
 Spittle, 32. 
 Duffr. Budd, 485, 505. 
 Dug dale V. Robertson, 62. 
 Duignan, Ex parte, 345, 347, 348. 
 Dxikev. Barnett, 848. 
 Dumas, Ex parte, 358. 
 Dumergue v. Kumsey, 245. 
 Dun. Nav. Co. v. North Mid. Kail. Co., 
 
 772. 
 Duncan v. Blundell, 402. 
 
 — V. Pindlater, 735, 739, 743, 1083 
 
 — " V. Louch, 138, 152 
 
 — V. Thwaites, 792. 
 Duncomb •». Keeve, 540. 
 
 Dundalk Western Ball. Co. r. Tapster, 
 
 39. 
 Dundonald (Earl of) v. Masterman, 403. 
 Dunlop V. Lambert, S05. 
 Dunn V. Large, 315. 
 Dunnicliff^J. MaUet, 53.. 
 Dunraven (Lord) v. Llewellyn, 981. 
 Dunston v. Paterson, 579, 657, 663, 1013. 
 Duppa V. Mayo, 525. 
 Durell V. Pritchard, 158, 1029, 1034. 
 Durham and Sund, Bail. Co. v. Wawm, 
 
 260. 
 .Du Terraux«. Du Terraux, 887. 
 Dntton V. Powles, 956. 
 Duvergier v. Fellows, 53. 
 Dwyer v. CoUins, 979. 
 Dyce V. Baf, St, 102. 
 Dyer v. Hargrave, 842. 
 Dyer's Co. v. King, 137. 
 Dyke v. Duke, 645. 
 Dyneni). Leach, 188, 398. 
 Dyson v. Collick, 302, 303. 
 Dyster v. Battye, 864. 
 
 Eaoeb v. Dyott, 627, 629. 
 
 Eager n. Grimwood, 910, 911, 914. 
 Eagle V. Charing Cross Bail. Co., 753. 
 Eagleton v. Qutteridge, 661. 
 Earle 1!. Holderneas, 366. 
 
 — V. Picken, 565. 
 Eavle's Case, 1063. 
 Easley v. Crookford, 329. 
 Bast India Co. r. PuUen, 509. 
 
 — V. Vincent, 156, 261. 
 
 East and West I. D. Co. v. Gattke, 753. 
 Eastern Co. Rail. Co. v. Broom, 597, 931. 
 — V. Dorling, 87, 198. 
 
 Easton i".' London, 337. 
 
 — V. Eichmond Highway Board, 
 
 226. 
 Eastwood V. Bain, 840, 867. 
 Eaton V. Johns, 777. 
 
 — V. Swansea Water Co., 66, 129. 
 Eaves v. Dixon, 869. 
 
 Eccleston v. Clipsham, 929. 
 Eclipse, The, 393. 
 Edelsten, ^. Edelsten, 875, 877. 
 Edge V. Parker, 666. 
 Edgeberry v. Stephens, 54. 
 Edgell V. Francis, 607. 
 Edmonson v. Machell, 911. 
 
 . — V. Nuttall, 361, 374, 375, 378, 
 568, 1,000. 
 Edsall V. Bussell, 798, 826. 
 Edwards v. Bridges, 651. 
 
 — ii. Crock, 904. 
 
 — V. Parebrother, 651. 
 -- 17. Fenis, 691. 
 
 — v. Gt. West. Bail. Co., 768. 
 
 — V. Halinder, 177. 
 
 — V. Hodges, 987. 
 
 — V. Hooper, 330, 346. 
 
 — V. L. & N. W. Bwy., 597. 
 
 — V. Martin, 352. 
 
 ' — i: Sherratt, 509. 
 Eggington's Case, 659, 718. 
 Eggington r.Mayor of Lichfield, '931. 
 Egremont (Lord), v. Pulman, 143, 162. 
 Egyptian (The), 390. 
 Eioholz V. Bannister, 848. 
 Ekins V. Tresham, 842, 847. ' 
 Eliot V. Allen, 590, 1000, 1004. 
 Elliot's Case, 219. 
 Elliotsou V. Feetbam, 162, 165, 167. 
 Elliott V. Bishop, 243, 244, 245. 
 
 — V. Nicklin, 913. 
 
 — r. North-East. Bail. Co., 91. 
 Ellis V. Abrahams, 621. 
 
 — V. Bridgnorth (Mayor of), 13, 96, 97, 
 
 112: . 
 
 — V. Cowne, 982. 
 
 — r. Kelly, 717. 
 
 — -0. Lend. & S. W. Bail. Co., 185, 190. 
 
 — V. Sheffield Gas Co., 175, 205. 
 
 — V. Taylor, 542. 
 Ellison V. Isles, 960, 974. 
 EllwQod V. Christy, 47. 
 Elmhirst v. Spencer, 76. 
 Elmslie v. BouVsier, 63. 
 Elsam V. Faucett, 903. 
 Elsee V. Smith, 618, 687. 
 Elstob V. Wright, 593, 598. 
 Elston V. Hose, 950. 
 Elwell V. Crowther, 77. 
 Elwes V. Maw, 241, 243, 245. 
 Elworthy r. Sandford, 337, 365. 
 
xlviii 
 
 INDEX OF CASES. 
 
 Ely (Dean, &c., of) v. Warren, 106. 
 Emblem v. Mjera, 421, 997. 
 Embrey v. Owen, 8, 64, 65, 66. 
 Emerson v. Emerson, 925. 
 Emery, In re, 950, 952. 
 — V. Bamett, 639. 
 Emmerton v. Matthews, 857. 
 Enderby, Ex parte, 351. 
 Energy, The, 390. 
 Eilgland v. Bourke, 826. 
 English V. Purser, 605. 
 Eunor v. Barwoll, 65, 77. 
 Esdaile v. Oxenham, 446. 
 EBk,.The, 393. 
 Europ. & Austr. B. M. Co. v. E. M. 
 
 Steam. P. Co., 326, 508. 
 Evans, Ex parte, 1041, 1046. 
 
 — V. Botterill, 696. 
 
 — V. Edmonds, 838. 
 * — V. Evans, 883. 
 
 — V. Hallam, 348. 
 
 — V. Harlow, 778, 800. 
 
 — V. Harries, 814, 998. 
 
 — V. Matthias, 565. 
 
 — ■«. Nichol, 340. 
 
 — - V. Rees, 985, 1010. 
 
 — V. Roberts, 302. 
 
 — V. Walton, 907, 908. 
 
 — «. Wright, 322,533. 
 Evelyn v. Eaddish, 75, 253, 257. 
 Everard v. Kendall, 963. 
 Everett v. G-rapes, 36, 201. 
 Eversfield v. Newman, 698, 951. 
 Everton (Overseers of), Ex parte, 1046. 
 Every v. Smith, 269, 302. 
 
 Ewart V. Cochrane, 85. 
 
 — V. Graham, 84. 
 Ewbank v. Nutting, 365, 374. 
 Excelsior (The), 394. 
 Exeter Carriers' Case, 490. 
 
 Exeter (Corporation of) f'. Devon (Earl 
 
 of), 177, 216. 
 Exley V. Inglis, 345. 
 Explorer, The, 392. 
 
 Eabbigas v. Mostyn, 989. 
 Eairman v. Ives, 782, 785i 
 Faithful, Be, 446. 
 Faldo V. Ridge, 294. 
 Falke v. Fletcher, 320. 
 Fallon, Ex parte, 592. 
 Farebrotlier v. Ansley, 1000. 
 Farina v. Silverlook, 877. 
 Farley v. Danks, 624. 
 Farmer v. Darling, 614. 
 
 — V. Hunt, 319. 
 
 — ■». Joseph, 912. 
 Farnsworth v. G-arrard, 402. 
 Famworth v. Paokwood, 499. 
 Farr «. Newman, 651. 
 Farrant v. -. , 339. 
 
 — v. Barnes, 17, 381, 398, 426, 452, 
 
 472, ,835, 869, 861.- 
 
 — V. Lovel, 259. 
 
 — «. Thompson, 363, 370. 
 Farrow v. Hague, 1042. 
 Farshaw v. De Wette, 1015. 
 FarwoU v. Boston, &c.. Rail. Co,, 188. 
 Fauconberg, v. Piers, 160. 
 
 Fawcet v. Beavrea, 906. 
 Faweett r. Fearne, 345, 360. 
 
 Fawcett V. York and N. Mid. Rail. Co., 
 
 185. 
 Fay V. Prentice, 162. 
 Feather v. The Queen, 48, 49. 
 Felkin v. Herbert (Lord), 1030. 
 Foil V. Knight, 495. 
 
 — V. Whittaker, 556. 
 Feltham v. England, 188. 
 Fenham (The), 393. 
 Fenn v. Bittleston, 363. 
 
 — V. Dixe, 813. 
 
 — V. Griffith, 977. 
 
 — V. Harrison, 863. 
 Fenner v. Duplock, 565. 
 Fennings v. Grenville (Lord), 330. 
 Fentiraan v. Smith, 82. 
 
 Fenton ■;•. Logan, 533. 
 Fenwiek v. Laycoek, 651, 654. 
 Ferguson, Ex parte, 394. 
 ' — V. Carrington, 321. 
 
 — V. Kinnoul (Earl), 14, 16, 27, 
 
 637. 
 
 — V. WUson, 842, 1029. 
 Fernandez, Ex parte, 640. 
 Fernie v. Young, 1031, 1034, 1035. 
 Fernley v. Worthington, 732. 
 Ferraud v. Bradford (Corpon. of), 746. 
 Ferrers (Earl of) v. Staff. & Uttox. En-y,, 
 
 773. 
 Fetter v. Beale, 609, 968, 996. 
 Feversham v. Emerson, 293. 
 Field V. Adames, 548. 
 
 — I,. Brown, 236. 
 
 — I/. Carnarvon & Llanberris Rail. 
 
 Co. 773. 
 
 — V. Mitchell, 538. 
 Figlia Maggiore, The, 396. 
 Filliter «. Phippard, 9, 249, 250, 255. 
 Finch V. Blount, 374. 
 
 Findon v. M'Laren, 632. 
 Finlay v. Finlay, 903. 
 Finnerty v. Tipper, 827, 829. 
 Finucane v. Small, 433. 
 Firth V. Purvis, 540. 
 Fisher v. Algar, 538, 666. 
 
 — V. BristDw, 628. 
 
 — V. Clement, 824. 
 
 — V. Fisher, 890. 
 
 — V. Magnay, 668, 662. 
 
 — V. Prowse, 173. 
 Fitch i: Rawlings, 80, 102. 
 Fitzgerald v. Fitzgerald, 885. 
 
 — V. Northcote, 602. 
 Fitzjohn v. Maokinder, 28, 617, 618. 
 Fleeming v. Orr, 192, 213., 
 Fletcher v. Bowsher, 860. 
 
 — V. Braddick, 394. 
 
 — V. Calthorp, 704. 
 
 — V. Fletcher, 586, 886. 
 
 — V. Greenwell, 764. 
 
 — V. Rylands, 69, 179. 
 Flewster v. Royle, 695. 
 Flight V. Leman, 622. 
 
 — V. Thomas, 126, 128, 210. 
 Flinn v. Perkins, 946. 
 Flower v. Adam, 20. 
 
 — I'. Gardner, 1024. 
 
 — V. London, Brighton, & S. C. 
 
 Rail. Co., 771. 
 Floyd V. Barker, 621. 
 Flyn r. Jtatthews, 354. 
 
INDEX OF CASES. 
 
 xlix 
 
 Poiston V. Crachi'oode, 103. 
 Foley V. Wilson, 235. 
 Ford V. Leche, 647. 
 
 — V. Tynte, 236. 
 Forde v. Skinner, 570, 571. 
 Fordham v. Akers, 553. 
 
 — I'. Brighton Bail. Co., 383. 
 Foreman v. Canterbury (Mayor of), 741. 
 Forea v. Wi'.son, 912. 
 
 Forest Queen, The, 953. 
 Forman v. Dawes, 369, 416. 
 Forsdyke v. Stone, 827, 1013. 
 Forster v. Forster, 903. 
 Forsyth's Case, 51, 52. 
 Forth V. Simpson, 440. 
 Forward II. Pittard, 470, 485. 
 Foster r. Bates, 926. 
 
 — 11. Charles, 838. 
 
 — V. Cookson, 656. 
 
 — ■„. Crabb, 451, 460. 
 
 — V. Denny, 897. 
 
 — V. Dort, 194, 279. 
 
 — V. Foster, 1038. 
 
 — V. Hilton, 656, 680. 
 
 — V. Pointer, 1010, 1017. 
 
 — V. Pritchard, 655, 670. 
 
 — V. Stewart, 907. 
 
 Fotherby i: Metrop. Rail. Co., 756, 1079, 
 
 1080. 
 Fouldes V. Willoughby, 320. 
 Poulger V. Newcomh, 799. 
 
 — V. Taylor, 665. 
 Fountain v. Boodle, 789. 
 Fowkes V. Joyce, 532. 
 Fowler v. Down, 370. 
 
 Powles ii.. Great West. Rail. Co., 487. 
 Pox, £x parte, 53. 
 
 — V. Fisher, 359. 
 
 — V. Gaunt, 579. 
 Foxall V. Barnett, 610, 634. 
 Foxcraft v. Wood, 444. 
 Poxham Tithing Cas^, 689. 
 Foxley, JEx parte, 347. 
 
 Foy V. London, Brighton, &e.. Kail. Co., 
 
 383. 
 France v. Gaudet, 378. 
 Frances v. Ley, 7. 
 Francis v. Cockrell, 386. 
 
 — V. Wyatt, 532. 
 Frankland v. Cole, 404. 
 Franklin v. Hosier, 439. 
 
 — v. Neate, 453. 
 
 — V. S. B. EaU. Co., 423. 
 Pranks, f. Pranks, 886. 
 
 — 1/. Wearer, 875. 
 
 Frankum v. Falmouth (Eai-1 of), 71, 73. 
 Praseru Berkeley, 999. 
 
 — V. Swansea Navig. Co., 351. 
 Fray v. Fray, 776. 
 
 — V. Voules, 404. 
 Frean v. Sargent, 1010. 
 Freedom, The, 396. 
 Freeman v. Appleyard, 444. 
 
 — V. Arkell, 630, 634. 
 
 — V. Birch, 454, 505. 
 
 — .V. Cooke, 984. 
 
 — I. Edwai-ds, 534. 
 
 — . V. Head, 227, 955, 1048. 
 \ — V. Kosher, 556. 
 
 Freemantle v. G-t. North. Kail. Co., 738. 
 Freer r. Marshall, 621. 
 
 Freestone v. Caswell, 198. 
 
 Fremantle w, Lond. & N. W. Eail. Co., 
 
 251, 255. 
 French v. Phillips. 538, 563. 
 Freshney v. Carrick, 351. 
 Frewon v. Hastings Local Board, 1049. 
 
 — V. Phillips, 127. 
 Priswell v. King, 446. ' 
 Frith V. Cartland, 360. 
 
 — v. Forbes, 447. 
 Fryer v. Kinnersley, 789. 
 Pulber, Ex parte, 643. 
 Puller V. Maokay, 948. 
 
 — V. Wilson, 862. 
 Furber, Ex parte, 1056. 
 Puruis v. Leicester, 848. 
 Furnis v. Midland Eail. Co., 762. 
 Fursdon ■». Clogg, 276. 
 Futcher ■». Hinder, 659. 
 
 Pynn, In re, 893. 
 
 Gabriel v. Dresser, 960, 963. 
 Gaby V. Wilts. Canal Co., 764. 
 Gage V. Collins, 1021. 
 
 — V. Smith, 235. 
 Gahau v. Laffitte, 637. 
 Gale V. Dalrymple, 602. 
 Gallagher v. Humphrey, 170. 
 
 — V. Piper, 188. 
 Galliard v. Laxton, 576, 721. 
 Galloway v. Bird, 552. 
 
 ■ — V. Bleaden, 65. 
 
 — V. London (Corp. of), 771. 
 Gallwey v. Marshall, 801, 813. 
 Gambart v. Ball, 46. 
 
 — V. Sumner, 47. 
 Gambrell v. Falmouth, 1024. 
 Gandy v. Jubber, 147, 165, 203. 
 
 Gann v. Whitstable Free Fishers, 281, 
 
 282. 
 Gardiner v. 'Gray, 850. 
 
 — V. Williamson, 519. 
 Gardner v. Broadbent, 1031. 
 
 — V. Slade, 789. 
 Garnett v. Backhouse, 199. 
 
 — V. Ferrand, 636. 
 
 — •y..Willan, 487. 
 Garside v. Trent Navig. Co., 485. 
 Garrard v. Guibdei, 945, 987. 
 
 — V. Tuck, 274. 
 Garret v. Taylor, 11. 
 Garrett v. Messenger, 219. 
 Garritt'w. Sharp, 136. 
 Garth v. Howard, 983. 
 
 Garton v. Bristol & Exeter Kail. Co., 470 
 483, 492, 493. 
 
 — 0. Gt. West. Eail. Co., 515, 765, 
 
 769, 1022, 1052. 
 Gaskell v. Marshall, 651. 
 Gatehouse «. Gatehouse, 884. 
 Gateward's Case, 103. 
 Gathercole v. Miall, 795. 
 Gaudret v. Egerton, 171. 
 Gauntlett v. King, 556. 
 Gared v. Martyn, 121, 122, 123. 
 Gawler v. Chaplin, 645. 
 Gay r. Matthews, 720, 723. 
 Gayford v. MofCatt, 87, 141. 
 Gee V. Lano. and York. Kail. Co., 512, 
 
 1021. _ 
 -Gelley r. Clerk, 501. 
 
1 
 
 INDEX OF CASES. 
 
 General Exchange Bank, Ee, 445. 
 
 ^ V. Horner, 408. 
 
 Gen. St. Navig. Co. v. Br. & Col. St. 
 . Navig. Co., 390, 
 391. 
 
 — V. Guill'cu, 930. 
 
 — V. Hedley, 393. 
 Genges v. Genges, 446. 
 
 Gent V. Harrison, 236, 254. 
 George v. Beaumont, 54. 
 
 — V. Chambers, 723. 
 
 George and Eichard, The, 392, 397. 
 George t: Skivington, 27, 403, 862. 
 Gerard v. Lewis, 622. 
 Gerhard r. Bates, 4, 26, 839, 864. 
 Gerrard v. Cooke, 88. 
 Gibbins v. Phillips, 676. 
 Gibbon v. Paynlon, 19, 860. 
 Gibbons v. Alison, 626. 
 
 — V. Pepper, 6, 381, 415, 418, 599. 
 GibbsT;. Cole, 52. 
 
 — V. Ealph, 1009. 
 
 — V. Trus. of Liv. Dock, 170, 185, 
 
 186, 207, 740. 
 Giblin V. McMuUen, 407, 430. 
 Gibson v. Bray, 355. 
 
 — V. Hammersmith Earl. Co., 747, 
 
 773. 
 — ' V. Humphrey, 366. 
 
 — V. Ireson, 530. 
 
 — V. Preston (Mayor of), 741. 
 
 — v. Smith, 258, 1030. 
 
 — V. Wells, 234. 
 
 Gilbert v. Burtenshaw, 827, 1(J02. 
 Gilbertson v. Kichardson, 991. 
 Gilding v. Eyre, 623. 
 Giles V. Lond. & Chat. Kail. Co., 747. 
 
 — V. Spencer, 521, 625, 529. 
 
 — V. Taff Vale Enil. Co., 932. 
 Gilli). Cubitt, 3'44. 
 
 Gillard v. Brittan, 1000. 
 
 Gillett «. Wilby, 53. 
 
 Gillon V. Boddington, 763, 923, 971. 
 
 Gilman v. Elton, 530. 
 
 Gilpin V. Cohen, 659. 
 
 — V. Fowler, 784, 803. 
 Gimbert v. Coyney, 722. 
 Gimson v. Woodfall, 338. 
 Gipps V. Gipps, 889, 890. 
 Girlington.«. Pitfield, 629. 
 Gisboum v. Hurst, 529. 
 Gitlins V. Symes, 1036. 
 Gladman v. Johnson, 212. 
 Gladstone v. Padwick, 652. . 
 Gladwellw. Steggall, 420, 918, 920. 
 Glaholm v. Barker, 391. 
 
 Glasgow (City of) Union Bwy. v. Hunter, 
 
 748, 754. 
 Glasgow Nat. Ex. Co. v. Drew, 863. 
 Glasspoole v. Young, 376, 651. 
 Glave V. Hsa-ding, 8ti, 95. 
 Glennie v, Glennie, 889. 
 Glover v. Dixon, 973. 
 
 — .V. Lond. & N. W. EaU. Co., 327. 
 
 — V. Lond. & S. W. Rail. Co., 608. 
 
 — n. North Stafe. Eail. Co., 754, 760. 
 Glyn V. Aberdare Kail. 'Co.; 756. 
 Glynn v. Houston, 606, 991. 
 
 — ■„. Thomas, 538, 542, 546, 550, 555, 
 
 563. 
 Goddard v. Harris, 658. 
 
 Goddart v. Haselfoot, 800. 
 
 Godefroy v. Dalton, 405. 
 v. Jay, 404. 
 
 Godfrey v. Eurzo, 358. 
 
 Godson V. Home, 790. 
 
 Godtsu. Eose, 342. 
 
 Godwin ■». Francis, 872. 
 
 Goff V. Gt. North. Bail. Co., 585, 596, 
 597, 931, 934.- 
 
 Goggerley v. Cuthbert, 328. 
 
 Gold V. Strode, 675. 
 
 Golden v. Manning, 485. 
 
 Golding V. Stocking, 198. 
 
 Goldsmid v. Tunbridge Wells Commrs., 
 214, 215, 216. 
 
 Goldstein v. Eoss, 831. 
 
 Gompertz v. Kensit, 903. 
 
 Good V. Land. Steam Shipowners' Asso- 
 ciation, 396. 
 
 Goodall V. Ensell, 1010. 
 
 Goode V. Job, 276. 
 
 Goodheim v. Goodheim, 886. 
 
 Goodman v. Boycott, 432, 454, 466, 460, 
 462. 
 
 — V. Harvey, 329. 
 Goodtitle v. Alker, 269. 
 
 — V. Tombs, 315. 
 Goodwin v. Noble, 941. 
 
 Goodwyn v. Oheveley, 264, 266, 548, 561. 
 Gordon v. East India Co., 352. 
 
 — -V. Harper, 363. 
 
 — V. Woodford, 236. 
 Gore V. Grey, 536. 
 
 — ■ V. English Fishery Commissionets, 
 
 199 - 
 Gorton v. Ealkner, 532. 
 Goslin V. Corry, 827, 996. 
 Qosset V. Howard, ,703. 
 Gott V. Gandy, 178. 
 Goiigh V. Everard, 360. 
 Gould ti. Capper, 1040. 
 Governor, Sec, of Cast Plate v, Meredith, 
 
 739. 
 Govelt V. !!adnidge, 946. 
 Gowens v. Moore, 1015. 
 Grace v. Morgan, 996. 
 Graham v. Eurber, 349. 
 — V. Graham, 891. 
 Grainger v. HiU, 321, 376, 624, 626. 
 Grand Junction Canal Co. i>. Shugar, 18. 
 Granger v. George, 971. 
 Grant v. Astle, 990. 
 
 — V. Moser, 681, 604. 
 
 — ■;;. Norway, 862. 
 
 — V. Vaughan, 328, 343. 
 Grantham v. Hawley, 99. 
 Graves v. Ashford, 46. 
 Grarves's Case, 47. 
 
 Gray v. Bond, 115. 
 
 — a. Carr, 438. 
 
 — n. PuUen, 174, 204, 415. 
 
 — V. West, 1014. 
 Grayburn v. Clarkson, 941. 
 Greasly v. Codling, 33. 
 Greatrex v. Hayward, 123. 
 
 Gt. North. Co. V. Shepherd, 466, 489. 
 Gt. Ship Co., Ee, 663. 
 Gt. West. El. Co. of Canada, v. Braid, 742. 
 — V. Fawcett, 
 
 188, 384. 
 Great West. EaU. Co. v. Bennett, 90.' 
 
INDEX OF CASES. 
 
 li 
 
 Great West. Rail. Co. v. Crouch, 490. 
 
 — V. Goodman, 489. 
 
 — v.- Eedmayne, 513. 
 
 — V. Kiniell, 479. 
 
 — 1'. The Queen, 1055 
 
 — V. Sutton, 493. 
 Great Yarmouth (Mayor of) v. Groom, 
 
 13. 
 Greathead v. Morley, 83. 
 Green v. Bartram, 604. 
 . — V. Button, 8, 27, 28, 837, 864. 
 
 — V. Dunn, 325. 
 
 — V. Blgie, 672. 
 
 — I. Farmer, 443. 
 
 — v. Goddard, 573. 
 
 — V. Greenbank, 938. 
 
 — V. Ingliam, 352. 
 
 — V. Lon. Gen. Om. Co., 174, 201, 
 
 931. 
 
 — V. New River Co., 26. 
 
 — V. Pope, 1079. 
 
 — V. St. Cath. Dock. Co., 536. 
 Greene v. Jones, 974. 
 Greeuhow v. Ilsley, 145, 
 Greening v. Wilkinson, 375. 
 Greenland v. ChapUn, 21, 22, 389, 394, 
 
 992. 
 Greenslade v. Darby, 279. 
 
 — V. Halliday, 197. 
 Greenway v. Fisher, 941. 
 
 — v. Hurd, 589, 765. 
 Greenwich Board of Works v. Maudslay, 
 
 222. 
 Gregg V. Wells, 372. 
 Gregory's Case, 882. 
 Gregory v. Brunswick (Duke of), 612. 
 
 — V. Cotterell, 645, 646, 681. 
 
 — V. HiU, 575. 
 
 — •«-. Piper, 206, 290. 
 
 — v. West Mid. Rail. Co., 484. 
 
 — V. William?, 996. 
 Gregson v. Theaker, 903. 
 Gresham v. Postan, 842. 
 Gre-rille v. Chapman, 778, 821. 
 
 Griffin V. Coleman, 571, 576, 577, 596, 
 666, 722. 
 
 — V. Dighton, 279. 
 Griffith V. Matthews, 113. 
 Griffiths V. Gidlow, 188, 398. 
 
 — V. Kynaston, 1024. 
 
 — V. Lewis, 788, 799, 813, 831. 
 
 — V. Iiongdon & EUersfield Drain- 
 
 age Board, 60. 
 
 — V. Teetgen, 909. 
 
 Grill V. Gen. Iron Screw Collier Co., 18, 
 
 393, 396. 
 Grimbly v. Ackroyd, 1043. 
 Grimstead v. Marlow, 103. 
 Grimston v. Innkeeper, 502. 
 Grindley v. Booth, 1035. 
 Grinham v. Willey, 595, 606. 
 Gi-inneU v. Wells, 34, 907, 908, 911. 
 Grocers' Co. v. Donne, 737, 739. 
 Grdenvelt v. Burwell, 641, 713. 
 Grose v. West, 284. 
 Grote V. Ches. & Holyh, RaU. Co., .384, 
 
 385. 
 GroTe V. Neyill, 858. 
 Groves v. Groves, 887. 
 Grabb v. Burlington (Earl of), 241. 
 Grymes v, Boweren, 243. 
 
 Grymea v. Peacock, 140. 
 
 Guest V. Poole & Bournemouth Rail., 751. 
 
 — V. Warren, 610, 967, 1043. 
 GuiUe V. Swan, 167. 
 Gnldfaxe, The, 392, 408. 
 Gulliver v. Cosens, 550, 555. 
 Gunmakers' Co. v. Fell, 38. 
 Guntor v. Astor, 914. 
 
 Gun- V. Cuthbert, 332. 
 Gustard's Case, 1086. 
 Gutsole V. Mathers, 808, 812, 864. * 
 Gwinnett v. Phillips, 563. 
 Gwynn v. Poole, 639. 
 
 Haddeiok v. Heslop, 615, 628. 
 Hadesden v. Gryssel, 110, 335. 
 Hadley r. Baxendale, 512, 871, 992. 
 
 — V. Taylor, 169, 190. 
 Hague V. Dandeson, 438. 
 Haigh V. Haigh, 886. 
 
 — V. Jaggar, 260; 
 
 — V. Lond. & N. West. Rail. Co., 
 
 185, 189. 
 Hailes v. Marks, 603, 615. 
 Haines v. East India Co., 678, 984. 
 — • V. Roberts, 89. 
 
 — V. Taylor, 215. 
 
 — -0. Welsh, 521. 
 
 Haire v. Wilson, 776, 824, 830. 
 Hakewill, IrCre, 893. 
 Hale V. Oldroyd, 138. 
 Hall's Case, 217. 
 
 — Estate, Be, 902. 
 Haai V. Ball,.337. 
 
 — V. Barrows, 874, 877. 
 
 — V. Booth, 578. 
 
 — ,'. Bristol (Mayor of), 749. 
 
 — V. Fearnley, 418, 598. 
 
 — V. Harding, 144. 
 
 — V. HoUander, 920. 
 
 — V. Johnson, 399.' 
 
 — V. Lurid, 85, 86. 
 
 — V. Pickard, 363, 388. 
 , — V. Smith, 933. 
 
 — V. Swift, 64. 
 
 — V. Taylor, 1083. 
 Halley, The, 392. 
 HaUiday, In re, 898. 
 
 — -0. Holgate, 331. 
 Hallows V. Fernie, 841. 
 Hamar v. Alexander, 838. 
 Hambleton v. Veere, 990, 1005. 
 Hambly v. Trott, 939. 
 
 . Hamer v. Knowles, 62. 
 Hamilton v. BeU, 353, 357. 
 
 — (Duke of) r. Graham, 268. 
 
 — V. Vere, 906. 
 Hammack v. White, 18, 381. 
 Hammond v. Barclay, 444. 
 Hamond v. Howell, 636, 639. 
 Hams, In re, 351. 
 Hancke v. Hooper, 403. 
 Hancock v. Cafiyn, 928. 
 
 — V. Peaty, 887. 
 
 — -l: Somes, 601. 
 
 — V. Southall, 419. 
 Hand, In re, 1060. 
 Handcook v. Baker, 295. 
 Handford v. Palmer, 429. 
 
 Hando v. Lond., .Chat., & Dover Rail. 
 Co., 399. 
 
 ' d2 
 
lii 
 
 INDEX OF CASES. 
 
 Ilankinson v. Bilby, 808. 
 Hanna (The), 390. 
 -Hannaford v. Hunn, 604. 
 Hannam v, Mookett, 9, 10, 26?. 
 Harbidge v. Warwick, 126, 127. 
 Harcourt v. Fox, 683, 1063. 
 
 — v. White, 262. 
 
 — r. Wyman, 921. 
 Hardcastle v. S. York. &o., Rail. Co., 169, 
 
 171, 172, 190. 
 Harding v. Carter, 984. 
 
 — V. Greening, 818. 
 
 — V. King, 600. 
 
 ■ — 1). Metrop. Kail. Co., 751. 
 
 — V. Pollock, 1062. 
 Hardwick v. Moas, 767. 
 Hardy v. Kyle, 726, 971. 
 
 — u. Veasey, 407. 
 
 — 0. ■Vyalker, 1039, 1044. 
 Hare v. Celoy, 9^8. 
 
 — V. Horton, 289. 
 Hargrave v. Le Breton, 809. 
 Harland v. Mayor of Newoastle-on-Tyne, 
 
 1014. 
 Harman v. Cornelius, 402. 
 
 — V. Delaney, 778, 796, 799. 
 Harmer v. Bell, 964. 
 
 Harnett v. Maitland, 231, 235. 
 Harold v. Smith, 1024. 
 Harper v. Charlesworth, 223, 302. 
 — » V. Godsell, 454. 
 
 — V. Lufekin, 910. 
 
 — v. Pole, 953. 
 Harries v. Thomas, 1009. 
 Harrington (Earl) v. Eamsay, 952. 
 Harris v. Baker, 933. 
 
 \— V. Butler, 909. 
 
 — V. Cockermouth Kail., 515"! 
 
 — V. Costar, 382, 417. 
 
 — V. Dignum, 596, 605, 983. 
 
 — V. liydiug, 89. 
 
 — V. Shipway, 525. 
 
 — i;. Thompson, 790. 
 Harrison, Ex parte, 352. 
 
 — V. Barnby, 524. 
 
 — r. Blackburn, 303. 
 
 — V. Bush, 781, 791. 
 
 — V. Dixon, 368. 
 
 — V. Good, 167. 
 
 — V. Gt. North. Rail. Co., 18, 59, 
 
 737. 
 
 — V. Lond., Br., & S. C. Rail. Co., 
 
 413. 
 
 — V. Parker, 303. 
 
 — u. Pearce, 827. 
 
 — V. Taylor, 46. 
 
 — i<. Thornborough, 797. 
 
 — V. Wright, 954. 
 Harrop v. Hirst, 66, 75. 
 
 Harrow School v. Alderton, 267, 261. 
 Hart's Case, 1085. 
 Hart V. Aldridge, 906. 
 
 — V. Baxendale, 609. 
 
 — V. Crowley, 418. 
 
 — r. Frame, 403. 
 
 — V. Frontino and Bolivia Gold Min- 
 
 ing Co., 985, 
 
 — V. Leach, 656. 
 Hartley, In re, 719. 
 
 — V. Halliwell, 212. 
 
 — r. Harriman, 208. 
 
 Hartley «. Hindmarsh, 600, 607. 
 
 ■ — V. Moxham, 536. 
 Hartnall v. Ryde ImproT. Commrs., 148, 
 
 740. 
 Hartop w. Hoare, 441. 
 Hartz V. Schrader, 261. 
 Harvey v. Brydges, 269, 305. 
 
 — V. French, 821. ■ 
 _ V. Mitchell, 979. 
 
 — V. Pooock, 527, 567. 
 Harwood v. Great North. RaU. Co., 55. 
 Haseler v. Lemoyne, 556. 
 Haselinton v. Gill, 358. 
 
 HassaU v. Wright, 53, 54. 
 Haswell v. Haswell, 887. 
 Hatch V. Hale, 542. 
 
 — V. Lewis, 421, 1015. 
 Hatton V. Kean, 43. 
 Haviland v. Haviland, 884, 887. 
 Hawkes v. Dunn, 325, 342. 
 
 — V. Smith, 471. 
 Hawkins v. Carbines, 152. 
 
 — V. Harwood, 404. 
 
 — V. Plomer, 660. 
 Haworth v. Hardeastle, 55. 
 Hawthorn v. Hammond, 494. 
 Hay V. Weakley, 624. 
 Haycratt v. Creasy, 837, 839, 846. 
 Hayes v. S. W. Kail. Co., 487. 
 Hayley v. Backet, 664. 
 Hayling •». Okey, 294. 
 
 Haylock v. Sparke, 684, 726, 727, 728, 
 
 731. 
 Hayward, In re, 703, 1058. 
 
 — V. Met. Rail. Co., 1023. 
 -^ V. Seaward, 324. 
 
 Hazeldine v. Groye, 727. 
 
 Head v. Briscoe, 937. 
 
 Headlam v. Hedley, 284. 
 
 Heal V. Heal, 905. 
 
 Heald v. Carey, 322. 
 
 Heap V. Barton, 246. 
 
 Hearn v. Lond. and S. W. Rail. Co., 479. 
 
 Heame v. Stowell, 795, 830. 
 
 Heath v. Bucknall, 128. 
 
 — V. Milward, 372; 
 
 Heaton Steel and Iron Co., Be, 1085. 
 Hebbert v. Thomas, 302. 
 Hebblethwaite v. Hebblelhwaite, 899. 
 Heden v. Atlantic Mail, &c.; Co. 1013. 
 Hedges v. Tagg, 909, 912. 
 Heeley v. Thames Valley Rail. Co., 755. 
 Heeman v. Evans, 663. 
 Hegan v. Johnson, 520. 
 Hegingbotham v. East, and Cont. St. P. 
 
 Co., 163, 219. 
 Heilbut V. Nevill, 346. 
 Heinrich v. Sutton, 447. 
 Hellawell v. Eastwood, 527. 
 Helliwell v. Hobson, 956. 
 Helsham v. Blackwood, 816, 827. 
 Heming v. Power, 798. 
 Hemming v. Hale, 99 J. 
 Hemmings v. Gasson, 813, 821, 824. 
 Henderson v. Broomhead, 781. 
 
 — V. Lacon, 840. 
 
 — ■„. Lond. and N. W. RaU. 478. 
 
 — V. Squire, 314. 
 Henkel v. Pape, 14. 
 
 Henley v. Mayor of Lyme, &c., 16, 110. 
 Henman v. Lester, 978. 
 
INDEX OF CASES. 
 
 liii 
 
 Henning v. Burnett, 308. 
 
 Hepburn v. Lordan, 217. 
 
 Heriot V. Stuart, 795. 
 
 Heriot's Hospital Feoffees v. Ross, 743. 
 
 Herlakenden's Case, 234. 
 
 Hermann v. Seneschall, 689. 
 
 Hern v. Nichols, 862. 
 
 Hemaman v. Bowker, 342. 
 
 Heme v. Benbow, 234. 
 
 Hen- V. Union Bank, 1029. 
 
 Herring v. Finch, 27. 
 
 — V. Metrop. Bd. of Works, 739, 
 
 750. 
 Hervey v. Smith, 157. 
 Herz r. Union Bank, 215. 
 HeslopV. Baker, 350, 368. 
 
 — V. Chapman, 617. 
 Hesse v. Stevenson, 53. 
 
 Heugh V. Lond. and N. W. Rail., 486, 
 
 490. 
 Heurteloup's Case, 49. 
 Hewison v. Guthrie, 441. 
 Hewitt V. Cory, 954. 
 
 — 1^. Isham, 293. 
 
 — V. Macquire, 674. 
 Hewlett V. Cruchley, 617, 1002. 
 Hewlins v. Shippam, 82, 149, 151. 
 Hewflton v. Phillips, 1043. 
 
 Hey V. Moorhouse, 305. 
 Heydou and Smith's Case, 103, 376. 
 Heymanu v. Eur. Central Rail. Co., 841. 
 Heywood v. Collinge, 624. 
 
 — V. Potter, 45. 
 Hibbs V. Ross, 420. 
 Hickinbotham v. Leech, 816. 
 Hide V. Thomborough, 124. 
 Hider v. Dorrell, 593. 
 Higgins 1). Bretherton, 491. 
 
 — •</. Thomas, 367. 
 Higgon V. Mortimer, 233, 254, 367. 
 Higgons V. Burton, 341. 
 Higham V. Rabett, 297. 
 
 Highmore v. Harrington (Earl of), 827. 
 Hilbery v. Hatton, 323. 
 B.m,Jnre, 1043. 
 
 — V. Balls, 3, 859. 
 
 — V. Goodchild, 1000. 
 
 — V. Gray, 858. 
 
 — V. Lane, 840. 
 
 — V. Reg., 1065. 
 
 — V. Sheriff of Middlesex, 676. 
 
 — V. Thompson, 51, 52, 56. 
 
 — V. Tupper; 69, 97, 101. 
 
 — V. Warren, 401. 
 HiUs V. Evans, 1031. 
 Hilton V. Earl Granville, 104. 
 
 — V. Woods, 312. 
 
 Hilton (Overseers of), v. Bowes (Over- 
 seers of), 97. 
 Hinchliffe v. Kinnoul (Earl), 85. 
 Hinde v. Sheppard, 1014, 1016. 
 Hindley v. Emery, 261. 
 Hindustan (Bank of ), Se, 446. 
 Hinsley v. Wilkinson, 267. 
 Hinton v. Dibbin, 478. 
 
 — V. Heather, 615. 
 Hipkins v. Birm., &c., Gas Co., 200. 
 Hirst V. Halifax Local Board, 227. 
 
 — v. Molesbury, 582. 
 Hiscocks V. Jones, 661. 
 Hiscox V. Greenwood, 333, 442. 
 
 Hitchings v. Thompson, 664. 
 Hitcliman v. Walton, 245. 
 Hoare v. Dickinson, 162, 207. 
 
 — V. Silverlock, 777, 791, 814, 821. 
 Hobson V. Thelluson, 653, 679. 
 
 — 1). Todd, 145. 
 Hoddesdon v. Gresil, 110. 
 Hodges r. Paterson, 673. 
 
 — V. Windham, 903. 
 Hodgkinson v. Ennor, 162, 107, 206. 
 
 — - V. Eernie, 30, 395. 
 Hodgmanv. West Midi. Rail. Co., 170, 
 
 481. 
 Hodgson V. Duce, 31 g. 
 
 — V. Fullarton, 434. 
 
 — V. Gascoigne, 657. 
 
 — V. Scarlett, 807. 
 
 — V. Sidney. 927, 928. 
 
 — V. Towning, 650. 
 HodsoU V. Stallebrass, 920, 996. 
 Hodson V. Walker, 952. 
 Hoe's Case, 662. 
 
 Hoey V. Fflton, 5. 
 Hoffman v. Postill, 1031. 
 Hogarth v. Jackson, 335. 
 Hogg V. Ward, 577. 
 Holborow V. Jones, 1014. 
 Holcome v. Rawlins, 304. 
 Holden v. Holden, 883. 
 
 — V. Liv. Gas. Co., 209, 252, 418. 
 
 — V. Weeks, 239, 260. 
 Holden's Case, 1086. 
 Holder v. Coates, 285. 
 
 — •<,'. Soulby, 504. 
 Holderness v. Collinson, 443. 
 
 — — V. Rankin, 354. 
 Holdringshaw v. Rag, 306. 
 Hole V. Barlow, 163, 165. 
 
 — V. Sittingbourne, &o., Rail. Co., 
 
 174, 205, 744. 
 
 — V. Thomas, 260. 
 Holford V. George, 199. 
 
 — ■». Hankinson, 149, 295. 
 Holland's Case, 683. 
 
 Holland (Lady) v. Kensington Vestry, 229. 
 Holhday v. Camsell, 330. 
 Hollier v. Laurie, 655, 670, 
 Hollis V. Claridge, 446. 
 
 — V. Goldfinch, 285, 303. 
 
 — V. Marshall, 670. 
 
 — V. Smith, 924. 
 Hollister v. Nowlen, 473. 
 HoUoway v. Abel, 911. 
 
 — V. Holloway, 875. 
 
 — -v. Turner, 995. 
 Holmes v. Bellingham, 283. 
 
 — V. Clarke, 188, 399. 
 
 — V. Goring, 138. 
 
 — V. Hodgson, 366. 
 
 — 0. Lond. & N. W. Rail. Co., 53. 
 
 — V. Noith-Bast Rail. 182, 189. 
 
 — V. Onion, 412. 
 
 — V. Pemberton, 1026. 
 
 — V. Simmons, 901. 
 
 — V. Sixsmith, 868. 
 
 — V. Sparkes, 673. 
 
 — V. Wilson, 270, 304, 968. 
 Holme's Case, 219. 
 
 Holroyd, v. Breare, 641. 
 — V. Marshall, 98. 
 Holt V. Daw, 297. 
 
liv 
 
 INDEX OF CASES. 
 
 Holt V. Frost, 666. 
 — V. E,ochdale,CorporatioD of, 177, 770. 
 Holyday v. Morgan, 848, 868, 869. 
 Homan, Ex parte, 353. 
 Home V. CamdeD, 1040. 
 
 — V. Grrimble, 690. 
 Homer v. Taunton, 821. 
 Honeas v. Stubbs, 960. 
 Hood V. N. E. Kail., 770. 
 
 Hoole V. Gt. "West. Rail. Co., 1030. 
 Hooman, Ex parte, 360. 
 Hooper, In re, 1035. 
 
 — V. Bristol Port Kail. Co., 763, 759. 
 
 — V. Hooper, fi86. 
 
 — V. Lwe, 649, 650, 652, 659, 661. 
 Hopcroft V. Kejs, 518. 
 
 Hope r. Hope, 882, 895, 896, 897. 
 Hopgood V. Parkin, 406. 
 Hopkins, Ex parte, 714. 
 
 — ■ v. Crowe, 588, 590, 595. 
 
 — V. Hitchcock, 875. 
 ■V. Tanqueray, 844. 
 
 HopkiuBon v. Burghley (Lord), 1031. 
 Hopper, In re, 636, 638, 1042, 1043. 
 
 — • ■»; Keeve, 571. 
 Hopwood V. Schofield, 146, 155. 
 
 — V. Thorn, i, 787, 798, 802. 
 Horn V. Baker, 350, 356. 
 
 — a.Swinford, 583. 
 
 — V. Thornborough, 590. 
 Hornblower v, Boulton, 51. 
 
 — V. Proud, 350. 
 Horncastle v. Farran, 441. 
 Home V. Home, 886, 891. 
 
 — ■». Widlake, 308. 
 Homidge v. Cooper, 343. 
 Hornsby v. Miller, 349, 356. 
 Horrocks v. Metrop. Rail. Co., 756. 
 Horsefall v. Davy, 535. 
 
 — V. Mather, 247. 
 Horsfall v. Holland, 287. 
 
 — V. Thomas, 26. 
 Horsford v. Webster, 525, 629. 
 Horwood V. Smith, 338. 
 Hosking v. PhiUips, 257, 290, 313. 
 Hoskins v. Knight, 677. 
 
 — V. Robins, 109, 547. 
 Hossaok V. Gray, 390. 
 Hotten V. Arthur, 42. 
 Houghton V. Butler, 320. 
 
 — V. Matthews, 444. 
 Houghton's Patent, 49. 
 Houlden v. Smith, 639. 
 Hounsellu. Smyth, 169, 172. 
 Housin V. Barrow, 645. 
 How V. Hall, 979. 
 Howard v. Crowther, 927. 
 
 — ■ V. Jemmett, 359. 
 
 — V. Lovegrove, 995. 
 
 — V. Newton, 943. 
 
 — V. Shepherd, 14. 
 -;- V. Sheward, 863. 
 
 — V. Smith, 565. 
 Howarth v. Brown, 1008. 
 
 — V. ToUemache, 368. 
 Howden v. Slaadish, 645, 673. 
 Howe V. Hunt, 1029. 
 
 — V. Scarrott, 518. 
 
 Howell V. Jackson, 494, 573, 581. 
 
 — V. Rodbdrd, 1006. 
 
 .- r. Young, 405, 763, 972. 
 
 Howes V. Ball, 534. 
 
 — V. Barber, 1024. 
 Hewlett V. Haswell, 938. 
 
 — V. Tarte, 965, 967. 
 Howton «.'Frearson, 87, 297. 
 Hoye V. Bush, 721. 
 Hubbard v. Bagshaw, 350. 
 
 — V. Lees, 902. ' 
 Huckle V. Money, 607, 989, 990, 997. 
 Huddart v. Griiflshaw, 50. 
 
 — V. Kigby, 973, 974. 
 Hudson V. Baxendale, 490. 
 
 — V. Granger, 444. 
 
 — V. MoKae, 111, 699. 
 
 — ■!>. Roberts. 193. 
 Hudston V. Midi. Rail. 467. 
 HufEer «. Allen, 623. 
 
 Hughes V. Buckland, 590, 764, 767. 
 
 — V. Gr^me, 872, 993. 
 
 — V. Hughes, 887. 
 
 — V. Quentin, 421. 
 Hull V. Pickersgill, 935. 
 Humberstone v. Dubois, 669. 
 Hume V. Oldacre, 314, 608, 1000-. 
 
 — V. Pooock, 847, 848. 
 Humfrey v. Geiy, 530. 
 
 — V. Lond. and'K. W. Rail. Co,. 
 291. 
 Humfreys v. Mears, 739. 
 Humphrey v. Mitchell, 659. 
 Humphries v. Brogden, 60, 62, 93, 124. 
 Hunt V. Colson, 272. 
 
 — V. Dowman, 247, 268. 
 
 — V. Harris, 287. 
 
 — V. Hooper, 646. 
 
 — V. Maniere, 327, 876. 
 
 — V. North StafF. &c.. Rail. Co., 949, 
 
 1043. 
 
 — V. Peake, 61, 62, 77, 124. 
 Hunter v. Caldwell, 406, 421. 
 
 — c. French, 631. 
 
 — D. Westbrook, 362. 
 Huntley i». Herring, 814. 
 
 — V. Russell, 238. 
 
 — v. Simson, 616, 620. 
 Hurst V. Gt. West. Rail. Co., 468. 
 Hussey v. Christie, 447. 
 Hutchins v. Scott, 562. 
 Hatohinson v. Copestake, 136. 
 
 — V. Guion, 859. 
 
 — 17. Lowndes, 692. 
 
 — 0. Morley, 868. 
 
 — -0. York, Newo.,&c., Rail. Co., 
 
 386, 388, 399. 
 Hutchison v. Birch, 649. 
 Hutton V. Cruttwell, 347. 
 Huxley v. Berg, 992. 
 Huzzey Field, 24. 
 Hyams v, Webster, 176, 414. 
 Hyde, v. Graham, 82, 294, 306, 973. 
 
 — V. Hyde, 886. 
 
 — V. Trent. Nar. Co., 470, 485, 507. 
 
 Ibbett v. De La Salle, 546. 
 
 Ibbotson V. Peat, 10, 162. 
 
 He's Case, 1066. 
 
 lUidge V. Goodwin, 6, 416. 
 
 Ilott V. Wilkes, 168. 
 
 Imperial Gas Co. o. Broadbent, 215. 
 
 Imray v, Magnay, 646. 
 
 Inchbald v. Barrington, 215. 
 
INDEX OF OASES. 
 
 Iv 
 
 Inchbald v. Robinson, 215. 
 
 Incledon v. Berry, 629. 
 
 Indermaur I'. Dames, 169, 170, 189. 
 
 Industrie (The), 394. 
 
 lugate V. Christie, 468. 
 
 Ingle V. Bell, 581. 
 
 Inglis V. Spence, 926. 
 
 Ingram v. Lawson, 777, 996. 
 
 lugs V. Lond. and S. "W. Rail. Co., 1013, 
 
 Inman v. Keck, 393. 
 
 Insole, Re, 885. 
 
 lona. The, 391. 
 
 Ipswich, (Tailors of), 35. 
 
 fi-eland (Bank of) v. Trustees of Evans's 
 
 Charities, 21, 22. 
 Ireland v. Johnson, 563. 
 
 — V. Livingston, 854. 
 Ireson v. Pearman, 405. 
 Irons V. Smallpiece, 336. 
 Irving i;. WU3on,-721, 765. 
 Irwin V. Brandwood, 800. 
 
 — V. Dearman, 911, 912, 913. 
 
 — ■„. G-rey, 16. 
 Isaac V. Belcher, 368. 
 
 — V. Wyld, 1043. 
 Isack K Clarke, 320, 325. 
 
 Isle of Wight Ferry Co. v. Ryde Com., 
 
 &c., 1008. 
 Israel v. Clark, 385. 
 Ivesou V. Moore, 201. 
 Ivimey v. Stocker, 109, 122, 140. 
 
 Jacklin v. Fytchcj 728. 
 Jackson v. Beaumont, 1039. 1040, 1041, 
 1045, 1060, 1051. 
 
 — V. Calesworth, 1006. 
 
 — V. Cator, 156, 261. 
 
 — 0. Couvtenay, 572. 
 
 — V. Cummins, 440. 
 
 — V. Everett, 1021. 
 
 — V. Pesked, 69, 292. 
 ■u. Smithson, 191. 
 
 — V. ToUett, 382. 
 
 — V. Turquand, 408. 
 Jacobs V. Humphrey, 657, 677. 
 
 — V. Latour, 439, 449. 
 
 — V. Seward, 241, 919, 930, 988. 
 Jaoobsohn v. Blake, 747. 
 
 Jacomb v. Dodgson, 726. 
 
 — V. Knight, 95. 
 James (The), 393. 
 James v. Biddington, 904. 
 
 — v. Boston, 784, 787. 
 
 — V. Brook, 812. 
 
 — ■<;. Campbell, 570, 608. 
 
 — V. Gt. Western Rail. Co., 385. 
 
 — V. Hayward, 153, 174, 168, 224. 
 
 — V. James, 876. 
 
 _ n. Lond. & S. W. Eaa.,.1037. 
 _ V. Phelps, 632. 
 
 — V. Plant, 141. 
 
 — 0. Eutleoh, 799. 
 
 — V. Swift, 593. 
 Janson v. Brown, 319, 373. 
 
 — V. Stuart, 775, 816. 
 Jardine v. Smith, 1056. 
 Jarmain v. Hooper, 651, 670, 671. 
 Jarman v. WooUoton, 358. 
 Jarrett v. Kennedy, 837. 
 Jarrold v.. Houlston, 42. 
 
 Jarvis v. Dean, 170, 172, 210, 223. 
 
 Jaxon V. Tanner, 990. 
 Jayne v. Price, 270, 304. 
 Jeans v. Wheedon, 630. 
 Jefe Davis (The), 445, 447. 
 Jefferson v. Durham CBishop of), 253. 
 
 — V. Jefferson, 290. 
 Jeflerya v. Boosey, 41. 
 Jeffreys v. Jeffreys, 888. 
 Jeffries v. Gt. West. Rail. Co.. 372: 
 
 — V. W;iUiams, 72, 152. 
 Jeffrye's Case, 1041. 
 Jegon V. Vivian, 312. 
 Jeuings v. Florence, 623. 
 Jenkins v. Belham, 407. 
 
 — V. Gething, 243. 
 
 — V, Hutchinson, 837, 853. 
 
 — i'. Turner, 23, 191, 208, 
 Jenner v. A'Beckett, 777. 
 
 — ■;;. Clegg, 518. 
 
 Jennings v. Gt. North. Rail. Co., 493. 
 
 — I'. Rundall, 938. 
 Jessel V. Chaplin, 1036. 
 Jesser v. Qifford, 70, 146, 165. _ 
 Jessop's Case; 62. 
 
 Jessop V. Crawley, 669. 
 Joel V. Morison, 387, 
 John V. Bacon, 189, 487. 
 Johns V. Jenkins, 535. 
 Johnson v. Emerson, 624. 
 
 — V. Faulkner, 534. 
 
 — V. Hill, 502. 
 
 — V. Hudson, 820. 
 
 — V. Johnson, 848, 891. 
 
 — ti. Lei^h, 647. 
 
 — V. Lord, 769. 
 
 — v. Midland Rail. Co., 466. 
 
 — V. Ossenton, 332. 
 
 — V. Pye, 857, 962. 
 
 — V. Renton, 1086. 
 
 — V. Royal Mail. S. P. Co., 324,, 
 
 — V. Stcar7321, 377, 450, 992. 
 
 — V. Upham, 542. 
 
 — , r. Windle, 343. 
 Johnston v. Renton, 21. 
 Jchnstone v. Sutton, 29, 34, 621, 632. 
 Jolly «> Arbuthnot, 518. 
 
 — 0. Wimbledon, &c., Eail. Co., 753. 
 Jombart v. Woollett, 356. 
 
 Jones V. Bewicke, 826. 
 
 — V. Bird, 179, 593, 728, 738. 
 
 — V. Bowden, 858. 
 
 — V. Bovce, 422. 
 
 — V. Bright, 842, 849. 
 
 — V. Brown, 330, 912. 
 
 — t. Carmarthen (Mayor of) 56. 
 
 — V. Carter, 314. 
 
 — ' V. Chapman, 292, 305. 
 • — V. Davies, 368. 
 
 — V. Dowle, 456, 461. 
 
 — V. East. Co. Rail. Co., 515. 
 
 — V. Festiniog Rail. Co., 251. 
 
 — V. Gooday, 312, 769. 
 
 — V. Harber, 346, 346, 347, 
 
 — V. Hart, 365. 
 
 — V. Howell, 589. 
 
 — V. Johnson, 723. 
 
 — I-, Jones, 195, 196, 269, 882, 1044. 
 
 — V. Lewis, 996. 
 _ V. Mackie, 1011. 
 
 — V. Morris, 560. 
 
Ivi 
 
 INDEX OF CASES. 
 
 Jones V. NiohoUs, 592. 
 
 — V. Owen, 693, 1039. 
 
 — V. Pearoe, 48. 
 
 — V. Pearle, 450, 503. 
 
 — V. Peri-y, 192. 
 
 — V. Pope, 672, 675. 
 
 • — V. Powell, 162, 164. 
 
 — V. Price, 295, 297. 
 
 — V. Pritchard, 810. 
 
 — V. Sawkins, 546, 963. 
 
 — V. Sxauh, 9?9. 
 
 — V. Sparrow, 1004. 
 
 — V. Stevens, 828. 
 
 — V. Tapling, 128, 137, 158. 
 
 — v. Tarleton, 980. 
 
 — V. Thurloe, 503. 
 
 — .-. Tyler, 500, 508. 
 
 — V. Vaughan, 721. 
 
 — V. Williams, 196, 662, 674, 1013, 
 
 1014. 
 
 — V. Wood, 676. 
 Jordan v. Moore, 55. 
 Jordin v. Crnmp, 168. 
 Jory V. Orchard, 732. 
 Joseph V. Henry, 1039. 
 Joule V. Jackson, 630, 532. 
 
 — V. Taylor, 764. 
 Joyce V. Foukes, 629. 
 
 Jubb V. Hull Dock Co., 748, 765. 
 Judge V. Cox, 212. 
 Judson V. Etheridge, 440. 
 Jupe V. Pratt, 52, 53. 
 Justice V. Gosling, 583. 
 
 Kavanagh v. Gudge, 293, 306. 
 Kay V. Grorer, 721. 
 
 — V. Marshall, 54. 
 
 — V. Wheeler, 432. 
 Keane, Me, 447. 
 
 Kearney v. Lond. & Brighton Rail, 18, 
 
 419. 
 Kearns v. Cordwainers' Co., 176. 
 Keats V. Keats, 890. 
 Keble v. Hickeringil), 10, 11, 162. 
 Keech v. Keech, 885. 
 Keen v. Priest, 627, 568. 
 Keene v. Dilk, 379. 
 Keighley v. Bell, 605, 624, 781. 
 Keightlej v. Birch, 678. 
 Kelcey v. Stupples, 1017. 
 Kelk V. Pearson, 153, 157. 
 Kelly V. Hutton, 42. 
 
 — V. Kelly, 883. 
 
 — V. Lawrence, 658. 
 
 — V. Moray, 926. 
 
 — V. Morris, 42. 
 
 — 2;.Tartington,-822. 
 
 — V. Sherlock, 827. 
 
 — 1-. TinUng, 796. 
 Kelsack v. Nicholson, 460. 
 Kemp V. Balne, 1048. 
 
 — V. Burt, 405. 
 
 — V. Neville, 576, 636, 641. 
 
 — V. Rose, 637, 638. 
 Kempston v. Butler, 93, 125. 
 Kendall v. King, 1083. 
 
 — V. Wilkinson, 712 
 Kendillon v. Maltby, 805, 808. 
 Kennedy v. Panama Steam Co., 841. 
 Kent V. Astley, 399. 
 
 — V. Freehold Land Co., 841. 
 
 Kent V. Gt. Western Kail. Co., 765. 
 
 — V. Shuckard, 498. 
 Kent Coast Rail. Co. v. Lond., Chatham, 
 
 and Dover Rail. Co., 773. 
 Kenyon v. Hart, 7. 
 Keppel V. Bailey, 98, 99. 
 Kerbey v. Denby, 650. 
 Kerby v. Harding, 643. 
 Kerford v. Mondel, 325, 331. 
 Kernaghan v. WiUiamS, 1030. 
 Kershaw v. Bailey, 806. 
 Key, £x parte, 348. 
 . — V. Flint, 440, 443. 
 Keynsham Blue Lias Co. *. Baker, 948. 
 Keyse v. Powell, 268, 
 Keyworth v. Hill, 365, 936. 
 Kiddell v. Burnard, 868. 
 Kidgill V. Moor, 146, 149. 
 Kimberley v. Dick, 637. 
 Kimbray v. Draper, 948. 
 Kimpton v. Willey, 1039, 1043. 
 Kine v. Evershed, 590, 691. 
 King (The) v. Watts, 226. 
 King V. England, 541, 546. 
 
 — V. Hoare, 966. 
 
 — v. Lake, 797, 800. 
 ' — '-v. Milsom, 329. 
 
 — V. Rose, 319. 
 Kingsford v. Merry, 341-, 342. 
 Kingsley, In re, 881. 
 Kingston's (Duehess of) Case, 715. 
 Kinloch v. Craig, 444. 
 
 — V. Nevile, 299. 
 Kinlyside v. Thornton, 233. 
 Kinning v. Buchanan, 671. 
 
 Kirby v. Simpson, 724, 727, 728, 731. 
 Kirkin v. Jenkins, 696. 
 Kirkley v. Hodgson, 351. 
 Kirkman v. Shawcross, 448. 
 Kitchen v. Campbell, 965. 
 Kite and Lane's Case, 704. 
 Knapman v. Pryer, 1013. 
 Knapp V. Lond., Chatham, and Dover 
 Rail. Co., 747, 752. 
 
 — V. Salisbury, 598. 
 Knight V. Bennett, 620. 
 
 — r. Cox, 564. 
 
 — (7. Egerton, 567. 
 
 — ■<,. Fox, 205. 
 
 — V. Gibbs, 804. 
 
 — v. Mosely, 260. 
 
 — V. Quarles, 405, 925. 
 
 — V. Waterford (Marquis), 982. 
 Knock V. Metropolitan Rail. Co., 763. 
 Knott V. Morgan, 877. 
 
 Knowles v. Holden, 1044. 
 
 — v. Richardson, 3. 
 Kramer v. Waymark, 21. 
 
 Krehl v. Gt. Central Gas Co., 346. 
 Kruger v. Wilcox, 444. 
 Kynaston v. Crouch, 368. 
 
 L V. H , 906. 
 
 Labalmondiere v. Addison, 196. 
 
 — D. Frost, 196, 703. 
 
 Laclough V. Towle, 611. 
 Lacon v. Liffen, 346. 
 Lacy V. Rhys, 44. 
 Ladd v. 'Ihomas, 542. 
 Lade v. Shepherd, 269. 
 Ladyman v. Grave, 115, 127. 
 
INDEX 01' CASES. 
 
 Ivii 
 
 Larone v. Smith, 816, 1011. 
 
 Laing v. Whaley, 67, 72, 148. 
 
 Laird r. Birkenhead Eail. Co., 156, 291. 
 
 Lake v. King, 782. 
 
 — V. Smith, 936. 
 Lamb's Case, 817. 
 Lamb v. Burnett, 602. 
 
 — V. Palk, 387. 
 Lambert v. Buckmaster, 446. 
 
 — V. Hepworth, 560. 
 
 — f. Hodgson, 974. 
 
 — V. Kpbinson, 492. 
 La Mert, Exparte, 1064. 
 Lampen v. Kedgewin, 967. 
 Lancaster r. Eve, 234, 243. 
 Lane. Canal Co., Ex parte, 352. 
 
 — V. Parnaby, 170, 185. 
 
 Lane. Waggon Co., v. Pitzhugh, 322, 
 
 974. 
 Lane, and York Eail. Co. v. Evans, 760. 
 Land v. North, 469. 
 Land Credit Co. of Ireland v. Fermoy 
 
 (Lord), 408. 
 Landens v. Shiel, 1052. 
 Lane v. Applegate, 964. 
 
 — V. Cotton, 16. 
 
 — V. Dixon, 301. 
 
 — ■;;. Tewson, 368, 458. 
 Lanfranclii v. Mackenzie, 128, 167, 158. 
 Lang V. Gisborne, 1031. 
 
 Lanpord v. Foot, 651. 
 
 — V. Selmes, 518. 
 Langley v. Hammond, 141. 
 
 — 1). Headland, 446. 
 Langmead, In re, 352. 
 
 Langridge v. Levy, 27, 835, 836, 861., 
 
 Langtonf. Waite, 331. 
 
 Lanphier v. Phipos, 403. 
 
 Lajisdowrie < Lansdowne, 237. 
 
 Lanyon v, Blanchard, 449. 
 
 Latch V, Eiimner Kail. Co., 383, 384. 
 
 Latham v. Eutley, 510. 
 
 Lathropp v. Marsh, 259. 
 
 Laugher v. Brefitt, 377. 
 
 — V. Pointer, 24, 387, 388. 
 Laughton v. Taylor, 964. 
 Laverack v. Bean, 1048. 
 Iiaveroni v. Drury, 432. 
 
 Law V. Dodd, 768. 
 
 Lawford v. Partridge, 949, 1009, 1044. 
 
 Lawless v. Anglo-Egypt. Cotton Co., 780, 
 
 790. 
 Lawrence v. Gt. Northern Kail. Co., 736, 
 737, 757, 761, 996. 
 
 — V. Hedger, 577. 
 
 — T. Hitch, 14. 
 
 — V. King, 198. 
 
 — V. Obee, 136. 
 
 Lawrenson v. Hill, 692, 695, 708, 724, 
 
 725, 727. 
 LaWBon v. Carr, 393. 
 
 — V. Dickenson, 446. 
 
 — ■!>. London (Bank of), 857, 
 
 — V. Weston, 328, 343, 344. 
 Lawton v.- Lawton, 244. 
 Layton v. Hurry, 651. 
 
 Lea V. Rossi, 664. 
 Leach v. Thomas, 243, 990. 
 Leader, The, 446. 
 Leader v. Homewood, 246. 
 
 — V. Moxon, 30, 740, 751. 
 
 Leader v. Rhys, 1016. 
 Leake v. Loveday, 368. 
 Leame v. Bray, 2, 248, 319, 380, 417. 
 Leary v. Patrick, 692, 709, 724. 
 Leather v. Simpson, 854, 870.- 
 Leather Cloth Co. v. American Cloth Co., 
 875, 877, 878. 
 — V. Hirschfleld, 8. 
 
 Leatt V. Vine, 698. 
 Leek V. Maestaer, 431. 
 Leconfiold (Lord) v. Dixon, 84. 
 Le Conteur v. Lond. and S. W. Rail. Co., 
 
 467, 476. 
 Lee, Exparte, 1057. 
 
 — V. Bayes, ,32, 326, 339, 453. 
 
 — V. Cooke, 539. 
 
 — V. Gansell, 649. 
 
 — V. Haley, 874. 
 
 — u. Jones, 26. 
 
 — tj. Lane, and Yorks. Rail., 962. 
 
 — V. Lopes, 657. 
 
 — V. Milner, 757. 
 
 — V. Riley, 22, 265. 
 
 — V. Robinson, 336. 
 
 — V. Smith, 621. 
 
 — V. Stevenson, 82, '94, 96. 
 
 — V. Vessey, 722. 
 
 Leech v. North Staffordshire Rail. Co., 
 
 184. - 
 Leeds (Duke of) v. Lord Amherst, 237. 
 Leete v. Hart, 589, 590, 692. 
 
 — V. Leete, 882, 883. 
 
 Le Fanu v. Malcolmson,-811, 820, 929. 
 Legg V. Evans, 450. 
 
 — V. Pardee, 698. 
 Legge V. Tucker, 1014. 
 Lehmann v. McArthur, 15. 
 Leicester (Earl of) v. Walter, 828". 
 Leigh V. Shepherd, 524. 
 
 — V. Smith, 433. 
 
 — V. Webb, 619. 
 Leith V. Pope, 635. 
 LempriSre v. Humphrey, 305. 
 
 — V. Lempriere, 887. 
 
 — V. Pasley, 354, 441. 
 
 Le Neve v. Mile End, &c.. Vestry, 173, 
 
 224, 225. 
 Le Boy v. Campion, 1066. 
 Leslie v. Guthrie, 350. 
 
 — v. Pound, 166, 178, 204. 
 Lester v. Garland, 592. 
 Lestrange v. Eowe, 281. 
 Lethbridge v. Phillips, 325. 
 
 — V. Winter, 222. 
 Letton V. Goodden, 12. 
 Leuckhart v. Cooper, 443, 448, 459. 
 Levi V. Sanderson, 1013. 
 
 Levy V. Edwards, 580. 
 
 — V. Langridge, 27. 
 
 — V. Moylan, 640. 
 
 — V. Rice, 956. 
 
 — V. Rutley, 42, 43. 
 Leward v. Baseley, 602. 
 Lewis, Exparte, 360. 
 
 — V. Alooek, 673. 
 
 — 11. Branthwaite, 2^8. 
 
 — V. Clement, 792. 
 
 — V. Davis, 53. 
 
 — V. Great West. Co., 483. 
 
 — V. Harris, 623. 
 
 -- :.. Levy, 637, 687, 781, 792, 815, 
 
Iviii 
 
 INDEX OF CASES. 
 
 Lewis J). Marling, 48, 55. 
 
 — V. Peako, 994. 
 
 — V. Read, 556. 
 
 — V. Rochester (Mayor of), 743. 
 
 — V. Walter, 791, 805. 
 Lexden Un. v. Southgate, 1042. 
 Ley V. Peter, 276. 
 
 Liddard v. Kain, 843, 844. 
 
 Lidster v. Borrow, 591. 
 
 Liford's Case, 86, 98, 304. 
 
 Liggina v. Inge, 74, 83, 135. 
 
 Lighlfoot V. Keane, 446. 
 
 Lilley v. Harvey, 950. 
 
 Lillie V. Price, 814. 
 
 Limpu3«.Lond. Gen.Omn.Co. (Limited), 
 
 25, 387. 
 Lindon v. Hooper, 547. 
 Lindsay v. Leigh, 703. 
 Linford v. G-udgeon, 668. 
 
 _ — V. Lake, 608, 610, 998. 
 Lingard v. Messiter, 352. 
 Lingham v. Biggs, 350, 352. 
 Lingwood v. G-yde, 104. 
 
 — . V. Stowmarket Paper Co., 76. 
 Lion, The, 390, 391. 
 
 Litchfield v. Ready, 304. 
 Littledale, Hxpa/rte, 352. 
 
 — V. Scaith, 335. 
 Liverpool (Mayor ot), Ex parte, 194. 
 
 — Adelphi, &c., v. Fairhnrst, 34, 
 
 857, 937, 962. 
 
 — New Cattle Market v. Hodson, 
 
 163. 
 
 — (Rector of), Ex parte, 279. 
 ' Livesay v. Hood, 357. 
 
 Livett V. Wilson, 114, 281. 
 
 Llandaff, &c., Market Co. v. Lyndon, 13. 
 
 Lloyd, Sx parte, 350. 
 
 — V. Burrap, 39. 
 
 — V. Peell, 941. 
 
 — V. Sandilinds, 649. 
 
 — V. Screw CoUier Co., 396. 
 Load V. Green, 358, 442. 
 Lock V. Ashton, 608. 
 
 Locke V. Matthews, 278. 
 Lockley v. Pye, 376. 
 Loeschman v. Machin, 363, 416. 
 Lomax v. Buxton, 347. 
 London's (Bishop of) Case, 335. 
 London (Bishop of) v. "Web, 237, 258. 
 
 — (City of) V. Pugh, 259. 
 _ ' — V. "Wood, 638. 
 
 — Chatham & Dover Railway, Se, 
 
 773. 
 
 — (Mayor of) v. Cox, 1087, 1038. 
 
 — — V. Hedger, 259. 
 
 — & N. "W. II. Co. r. Ackroyd, 91. 
 
 — — V. Bartlfitt, 485. 
 
 — ~ V. Bradley, 736, 
 
 754, 760. 
 
 — — V. Lancashire,&c. 
 
 Rail. Co.,167, 
 317. 
 
 — — V. Skerton, 184. 
 
 — — V. Smith, 754. 
 
 — & S. W. Rwy. V. Blackmore, 761. 
 
 — & "West. Loan, &c., Co., 246. 
 
 — Cotton Co., Be, 653. 
 
 — & Devon Biscuit Co., Re, 653. 
 
 — & Provincial Tel, Co., lie, 985. 
 Long V. 'Orsi, 405. 
 
 Longbottom v. Berry, 246, 527. 
 
 — V. Longbottom, 1043. 
 Longford v. Ellis, 941. 
 Longman v. Tripp, 350. 
 Longmeid v. Holliday, 862, 918, 922. 
 Longmore 1). Great "West. Rail. Co., 183. 
 Lonsdale (Earl) v. Curwen, 316. 
 
 — V. Nelson, 196. • 
 
 — V. Rigg, 334, 
 Looker v. Halcomb, 580. 
 Loosemore v. Radford, 996. 
 Lopes V. De Tastet, 417. 
 Lord V. Mid. Rail. Co., 484. 
 
 — • V. Sydney (Commrs. of), 283. 
 Loring v. Warburton, 542. 
 Losh V. Hague, 50, 65. 
 Lotan V. Cross, 364. 
 Loton V. Devereux, 681. 
 Louis V. Louis, 886. 
 Lousley v. Hayward, 113. 
 Lovegrov'e v. Lend. & Brighton Rail. Co., 
 400. 
 — «. "White,. 406. 
 Lovell V. Martin, 343. 
 
 — ■!>. Smith, 137. 
 Lover v. Davidson, 44. 
 Loveriug v. Loveringj 889. 
 Lovett V. Hobbs, 468, 509. 
 Low V. Routledge, 41. 
 
 — V. "Ward, 41, 42. 
 Lowe V. Carpenter, 129. 
 
 — V. Govett, 282. 
 Lowe's Case, 1085. 
 Loweth V. Smith, 602. 
 Lowry v. Guildford, 404. 
 Lowther v. Radnor (Earl), 688. 
 Lucan (Earl) v. Smith, 814. 
 Lucas V. Dorrien, 444, 445. 
 
 — V. Lond. Dock Co., 366. 
 
 — V. Tarleton, 545, 557, 563, 564, 667. 
 Ludlow V. Browning, 359. 
 
 Lukin V. Godsall, 21 4, 257. 
 
 Lumby v. Allday, 802, 826. 
 
 Lumley v. Gye, 8, 9, 28, 906, 914. 
 
 Lumsden's'Case, 1085. 
 
 Luudy Granite Co., Re, 519, 531. -. 
 
 Lunn V. Thornton, 98. 
 
 Lunt V. Lond. & North Rail. Co., 385. 
 
 Lutterell v. ReyneU, 32. 
 
 Luttreil's Case," 107. 
 
 Lycett V. Staff. & TJttox. Rail, 773. 
 
 Lyde v. Barnard, 838. 
 
 Lygo V. Newbold, 401. 
 
 Lyme Regis (Mayor, &c., of) v. Henley, 
 
 66, 930. 
 Lynch v. Knight, 4, 34, 798, 802. 
 
 — V. Nurdin, 6, 20, 401, 416, 421. 
 Lyne, Ex parte, 583. 
 
 — V. Leonard, 199. 
 
 — V. Siesfeld, 960. 
 Lynvi Co., Ex parte, 345. 
 
 — V. Brogden, 312. 
 Lyon V. Enowles, 45. 
 
 — V. Mells, 483. 
 
 — V. Tomkies, 644.- 
 Lyons v. Blenkin, 893. 
 
 — V. Martin, 556. 
 
 Lysney v. Selby, 843, 847, 864, 867. 
 Lythgoe v. Vernon, 34. 
 
 Maa0ss v. Henderson, 449. 
 
INDEX OF CASES. 
 
 lix 
 
 M'Cance v. Lond. & N. W. Rail. Co., 484, 
 
 512, 984. 
 MacCarthy v. Young, 17, 427. 
 M'Clellan, Ex pm-te, 893. 
 M'Combie v. Davies, 323. 
 Macrae v. Clark, 680. 
 M'Crea v. Holdsworth, 45, 46. 
 M'Cnrday v. DriscoU, 601. 
 M'Dermott v. Justices of British Guiana, 
 
 714. 
 M'Donald v. Eooke, 615. 
 
 — V. Thompson, 344. 
 M'Donnell v. Evans, 977. 
 
 — r. M'Kinty, 272. 
 Macdougalii. Paterson, 1012, 1016. 
 M'Dougall V. Claridge, 787. 
 M'Eniry v. Waterford, 309. 
 MTadzen v. Mayor, &o., of Liverpool, 
 
 628. 
 M'Gregor v. Deal & Dover Eail. Co., 
 854. 
 
 — V. Galsworthy, 592. 
 
 — V. Gregory, 816. 
 
 — -0. Thwaites, 637, 775, 792. 
 Mackay v. Ford, 806. 
 
 McKean v. M'lTor, 485. 
 McKenzie v. M'Leod, 252. 
 M'Kewen v. Cotohing, 371. 
 M'Kiunbn v. Penson, 741. 
 M'Kone v. Wood, 192. 
 M'Langhlin v. Pryor, 388. 
 M'Leish v. Tate, 520. 
 M'Leod V. M'Ghie, 377. 
 M'Manus v. Criokett, 25, 387. 
 
 — ■». Lane., &c., Rail. Co., 482, 
 
 483, 484. 
 
 M'Murray v. Wright, 964. 
 
 McNiel's Case, 841. 
 
 M'Pherson v. Daniels, 805, 811, 814, 817, 
 826. 
 
 M'Swiney v. Haynes, 78, 88, 143. 
 
 Mace V. Cammel, 352. 
 — V. Philcox, 37, 112, 280. 
 
 MaeheU. v. EUis, 554. 
 
 Machu V. L. & S. W. Bail. Co., 480. 
 
 Macklin v. Eiohardson, 1032. 
 
 Macrow v. Gt. West. Kwy., 467. 
 
 Madrid Bank, JEe, 841. . " 
 
 Magdalena Steam Navig. Oomp. v. Mar- 
 tin, 958. 
 
 Magnay v. Burt, 621, 626, 659. 
 
 — V. Monger, 659. ' 
 Magor V. Chad wick, 122j 
 Mahoney v. Widows' Life Aas., 963. 
 MaitUnd v. Goldney, 811, 820. 
 Major V. Park Lane Co., 197. 
 Malachy v. Soper, 809. 
 
 Mali Ito, The, 392, 964. 
 Mallam v. Arden, 522. 
 MalUnson v. Mallinaon, 885, 892. 
 Malone ■e. Harris, 96, 100. 
 Manby v. Scott, 938. 
 — V. Witt, 787. 
 Mauceaux, £x parte, 51. 
 Manchester & Altr. Rail. Co. v. Fullarton, 
 735, 738. 
 . — & Sheff., &c., Eail. Co. v. 
 Worksop Board of Health, 
 744. 
 Mau.j Sheff. & Lin. Eail. Co. wWallis, 181, 
 548. 
 
 Man.,, Sheff. & Lin. Eail. Co. ■a.Wood, 201. 
 Manders v. Williams, 864, 452. 
 Mangan v. Atterton, 21. 
 Manley v. Field, 908. 
 
 — V. St. Helen's Can. & Rail. Co., 
 
 186, 736. * 
 Mann v. Forrester, 445, 449. 
 
 — V. Shniffner, 445. 
 Manning v. Clement, 826. 
 
 — V. Farquharson, 1038, 1045. 
 
 — V. Wasdale, 80. 
 Mansergh, In re, 643. 
 Manton ■;;. Moare, 354. 
 
 — (J. Parker, 50. 
 March v. March, 891, 893. 
 Marchmont v. Marchmont, 899. 
 Marfell v. South Wales Rail. Co., 180, 
 
 182, 185. 
 Margate Pier Company (The) v. Ilannam, 
 
 691. 
 Margetson v. Wright, 843. 
 Maria, The, 390. 
 Marker v. Kenrick, 233. 
 Markham v. Cobb, 31. 
 Marks v. Lahee, 982. 
 
 — V. Peldman, 346. 
 Marlborough (Duke of) v. Saint John, 
 
 239, 260. 
 Marrable, Ux parte, 353. 
 Marriott v. Lond. So S. W. Rail. Co., 
 
 514. 
 Marris v. Marria, 889. 
 Marsh v. Conquest, 44, 45, 
 
 — V. Dewes, 950. 
 
 — V. Loader, 677. 
 
 — V. Marsh, 891. 
 Marshall v. Martin, 1010. 
 
 — D. Moran, 390. 
 
 — V. Ross, 878. 
 
 — V. Ulleswater, 282. 
 
 — V. Watson, 261. 
 
 — V. York, Newcastle, &c., Eail. 
 
 Co., 472, 505, 917. 
 Marshalsea (The) Case, 664. 
 Marson v. Lond., Chat., & Dover Eail. 
 
 Co., 762. 
 Martin, Bxparte, 358. 
 
 — «. Bell, 676. 
 
 — v. GOham, 234, 254. 
 
 — V. Great Ind. Peninsul. Eail. Co., 
 
 467. 
 
 — V. Great North Rail. Co., 182, 
 
 401. 
 
 — V. Headon, 15.7, 158. 
 V. Kennedy, 965. 
 
 — V. Porter, 312. 
 
 — V. Pridgeon, 696. 
 
 — V. Roe, 239, 242. 
 
 — V. Shopper, 570. 
 
 — V. Strong, 788. 
 
 — V. Temperley, 413. 
 Martindale v. Smith, 321. 
 Martini v. Coles, 920. 
 Martins v. Upcher, 592, 728. 
 Martyn v. Kuowles, 241, 919, 930. 
 
 — V. Williams, 99, 987. 
 Martyr v. Bradley, 245, 254. 
 Mary's (Robert) Case, 594. 
 Mary Caroline, The, 422. 
 Marzetti v. WiHiams, 8, 14. 
 MsAonv. Barker, 733. 
 
Ix 
 
 INDEX OK CASES. 
 
 Masou V. Birkenhead Com., &c., 764. 
 
 — V. Caesar, 196. 
 
 — V. Pamell, 458. 
 
 — o. HiU, 64. 
 
 — V. Keeling, 191, 265, 267. 
 
 — V. Mitchell, 379. 
 
 — V. Newland, 554. 
 
 — V. Paynter, 644, 679. 
 
 — 0. Sainsbiiry, 1001. 
 
 — u. Shrewsbury & Hereford Kail., 
 
 64, 116, 123. 
 
 — V. Tucker, 1016. 
 Massam v. Hunter, 140. 
 Massey, Re, 447, 
 
 — V. Goyder, 179, 
 
 — r. Johnson, 703, 726, 971. 
 
 — V. Sladen, 332. 
 Maslerman, Ex ^arte, 352. 
 Masters, o. Farris, 566, 1002. 
 Mather v. Lay, 349. 
 Mathers v. Green, 54. 
 Mathew v. Sherwell, 377. 
 Mathieson v. HaiTod, 47. 
 Matson v. Cooke, 302. 
 Matthews v. Hopping,- 436. 
 Matthias v. Mesnard, 530. 
 Matts V. Hawkins, 287. 
 Maughan v. Sharpe, 429. 
 Maund v. Monm. Eail. Co.j 930. 
 Maunder v. Venn, 912. 
 Mawby, Ex-parte, 1065. 
 
 MaxweU v. Hogg, 42, 876, 1032, 1033. 
 May, .Sx parte, 701, 712. 
 
 — 1). Brown, 829. 
 
 — V. Burdett, 23, 191, 208. 
 
 — V. Footner, 987. 
 
 — v. Great West. Eail. 762. 
 
 — V. Harvey, 454. 
 Mayall v. Higby, 1037. 
 Mayer v. Burgess, 1051. 
 Mayhew v. Eames, 19. 
 
 — u. Herrick, 330. 
 
 — -v. Locke, 691. 
 
 — I). MaxweU, 41. 
 
 — V. Nelson, 477. 
 
 — v. Suttle, 272, 364. 
 Maynard v. Moseley, 848. 
 
 Mears v. Lond. & S. W. Eail. Co., 363, 
 
 411, 453. 
 Mechelen v. Wallace, 521. 
 Med. Nav. Co. -o. Eomney (Earl of), 69. 
 Medina v. Stoughton, 848. 
 Melling -o. Leak, 274. 
 Mellor V. Baddeley, 620. 
 
 — V. Leather, 658, 588, 722. 
 
 — V. Spateman, 108. 
 Mellors v. Shaw, 187, 188, 398. 
 MelTille ». Doidge, 436. 
 Melvina, The, 409. 
 
 Mennic v. Blake, 552, 563. 
 Mercer v. Jones, 377. 
 
 — V. Peterson, 332. 
 
 — V. Stanbury, 957. 
 
 — V. Whall, 975. 
 
 — V. Woodgate, 173. 
 Merest v. Harvey, 7, 264, 311, 997. 
 Meriton v. Coombes, 265, 269, 293. 
 Merivale v. Exeter Tump. Ed. (Trustees 
 
 of), 162, 229. 
 Merry weather v. Nixon, 1000. 
 Mersey Dock Trustees v. Gibbs, 740. 
 
 Mersey Dock v. Penhallow, 186. 
 M eryweatlier v. Turner, 820. 
 Mesnard v. Aldridge, 868. 
 Messiter v. Eoe, 959. 
 Metcalf V. Hetherington, 148, 207. 
 
 — .. Lond. & Bri., &c., Eail. Co., 
 
 - 455, 479, 510. 
 
 — r. Lum.sdeD, 339. 
 
 — V. Westaway, 84. 
 Metropolitan Associat. v. I'etch, 147, 150, 
 
 153, 208. 
 
 — Bd. of Works v. Metro. Eail. 
 
 Co., 89. 
 
 — Co. Ins. Soc. •». Brown, 245. 
 
 — Kail. Co. V. Tumham, 1023. 
 ■ — Saloon Cm. Co. v. Hawkins, 
 
 777, 814, 827. 
 Meyer -c. Everth, 868. 
 Meyerstein v. Barber, 342, 
 Meynell v. Angell, 456. 
 Michael v- Alestree, 389. 
 Michell V. Brown, 199. 
 
 — V. Hughes, 927. 
 
 — ■». WillianiB, 616, 627. 
 Micklethwaite v. Micklethwalte, 237. 
 Middlesex, Sheriff of, Expa/rte, 346.; 
 Middleton v. Fowler, 509. 
 
 Midi. Eail. Co. v. Cheekley, 90. 
 
 — V. Daykin, 181. 
 
 — ' V. Pye, 880. 
 
 — ». Taylor, 1066. 
 Midelton v. Gale, 723. 
 
 Milan, The, 389, 393, 396, 402, 410, 422. 
 
 Milburn r. L. & S. W. Eail., 395. 
 
 Mildred v. Weaver, 221. 
 
 Miles V. Cattle, 513. 
 
 Milford V. Milford, 883, 891, 892. 
 
 Milgate v. Kebble, 332. 
 
 MiU ti. New Forest Comm., 119. 
 
 Millar v. Taylor, 41. 
 
 Miller v. Miller, 905. 
 
 — v. EAce, 328, 329, 343. 
 Milligan v. Picken, 45. 
 
 — V. Wedge, 413. 
 Millington v. Fox, 875. 
 
 Mills V. Colchester (Mayor of), 83, 101. 
 
 — u CoUett, 693. 
 
 — V. Graham, 938. 
 Milman v. Dolwell, 367. 
 Milne v. Leisler, 983. 
 
 — V. Marwood, 836, 838. 
 
 — V. Milne, 890, 905. 
 Milner, Ex parte, 1056. 
 
 — V. Milner, 886. 
 
 — V. Milnes, 921. 
 Milton v. Green, 721. 
 Miner v. GUmour, 66, 96. 
 Minet v. Morgan, 160. 
 Minna, The, 391, 410. 
 
 Minor v. Lond. & N. W. Eail. Co., 948. 
 Mlnshull V. Lloyd, 676. 
 Minter v. Wells, 50, 51. 
 
 — V. Williams, 53, 
 Mires v. Solebay, 326. 
 
 Mitchell V. Crassweller, 387, 958, 987. 
 
 — V. Foster, 696. 
 
 — V. Jenkins, 632. 
 
 — V. Tarbutt, 291, 943. 
 Mitten v. Faudrye, 819. 
 Mobbs V. Vandenbrande, 1006. 
 Mody V. Gregson, 852. 
 
INDEX OP OASES. 
 
 Ixi 
 
 Moflfatt V. Bateman, 18, 386. 
 Mold V. Wheatcroft, 156, 1028. 
 Molesworth v. Robbins, 446. 
 Money v. Leaeh, 721. 
 Moneypenny v. Hartland, 402. 
 Monk V. Sharp, 345. 
 Monktou V. Ashley, 605. 
 Monmouth Canal Co. v. Harford, 298. 
 Monin. Can. & Bail. Co. v. Hill, 285. 
 Monprivatt v. Smith, 974. 
 Moody V. Spencer, 446. 
 
 — u. Steward, 102'3. 
 Moon I'. Baphael, 378. 
 Mooue V. 'Base, 666. 
 
 Moore «. Gt. South.& "West. RaiLCo., 754. 
 
 — 1). Meagher, 813. 
 
 — V. Moore, 860. 
 
 — V. Plymouth (Earl), 294. 
 
 — V. Bawson, 134, 135. 
 
 — V. Bobinson, 919. 
 
 — V. Watson, 1015, 1017. 
 
 — V. Wilson, 505. 
 
 Morant v. Chamberlain, 173, 225. 
 Mordaunt v. Mordaunt, 887. 
 Morden v. Porter, 698. 
 Moreland v. Bichardson, 1031. 
 Moreton v. Harden, 416. 
 
 — u. Holt, 1048. 
 Morgan v. Cubilt, 921. 
 
 — V. Hughes, 595, 694. 
 
 — V. Knight, 927. 
 
 — 1). Lingen, 777. 
 
 — V. Marquis, 330, 458. 
 
 — V. Met. Bail. Co., 751, 766, 1070, 
 
 1081. 
 
 — V. Palmer, 727. 
 
 — V. Powell, 312. 
 
 — V. Bavey, 495, 500. 
 
 — V. Seaward, 48, 50, 55. 
 
 — V. Sim, 18. 
 
 — V. Steble, 928. 
 
 — V. Vale of Neath B. Co., 399, 400. 
 Moriarty v. L. C. & D. Bail., 420. 
 Morison v. Salmon, 864, 870, 1012. 
 Morlaud v. Cook, 111. 
 
 Morley v. Attenborough, 339, 343, 848. 
 
 — V. Pincombe, 528. 
 
 — V. Pragnell, 162. 
 Morphett v. Morpbett, 884. 
 Morrell v. Martin, 723. 
 Morris v. Ashbee, 42. 
 
 — V. Branson, 53. 
 
 — 0. Caunan, 352. 
 
 — V. Edgington, 86, 87. 
 
 — V. Miller, 900. 
 
 — V. Morris, 237, 259, 890. 
 
 — V. Nugent, 192. 
 
 — V. Ogden, 705. 
 
 — V. Reynolds, 636. 
 
 — V. Bobinson, 969, 
 , _ V. Wright, 42. 
 Morrish v. Murray, 647. 
 Morrison, Ex parte, 446. 
 
 — V. Gen. St. Nav. Co., 393. 
 Morse v. James, 674. 
 Mortimer v. Cottrell, 31il. 
 
 _ V. Cradock, 375, 991. 
 
 — V. S. W. Bail. Co., 760. 
 Mortimer v. Wright, 898. 
 Morton v. Woods, 518, 520. 
 Mosley V. Posset, 434. 
 
 Moss, Re, 447. 
 
 Moss V. Townsend, 503. 
 
 Mossop V. Great North. Bail. Co., 1045. 
 
 Mostyu V. Fabrigas, 29, 31, 958. 
 
 Motley V. Downman, 877. 
 
 Molteram v. E. Co. Rail. Co., 703. 
 
 Moule V. Garrett, 15. 
 
 Mounsey v. Ismay, 102, 118, 308. 
 
 Mount V. Taylor, 1013. 
 
 Mountjoy's Case, 100. 
 
 Mount] oy v. Wood, 642. 
 
 Mountney v. Watton, 816. 
 
 Mountnoy v. Collier, 951, 952. 
 
 Mourilyan v. Labalmondiere, 196. 
 
 Mouse's Case, 494., 
 
 Muir V. Fleming, 440. 
 
 Mulkern v. Ward, 777. 
 
 MuUer v. Moss, 352. 
 
 Mullet V. Challis, 645. 
 
 MuUett V. Mason, 859, 871. 
 
 Mumford v. Oxford, Wore. & Wolv. Rail. 
 
 Co., 203. . 
 Mummery v. Paul, 865. 
 Mungeani). Wheatley, 554, 1045, 1052. 
 Munns v. Isle of Wight Rail., 773. 
 Munro v. Butt, 402. 
 Munsteri). S. E. Bail. Co., 481, 489. 
 Murchie v. Black, 60, 63. 
 Mure V. Kaye, 603. 
 Murgatroydr. Robinson, 66, 167. 209. 
 Murish v. Murray, 954. 
 Murly V. M'Dermott, 286. 
 Murphy r. Caralli, 414. 
 Murray, Ex parte, 357. 
 
 — V. Currie, 414. 
 
 — ■„. Hall, 286, 289. 
 Muschamp v. Lan. & Pres. Bail. Co., 487. 
 Musgrave's Case, 1085. 
 MusgraTe.«. Bovey, 801. 
 
 — V. Forster, 83, 84. 
 Mushett V. Hill, 100. 
 Muspratt v. Gregory, 529, 532. 
 Mutton V. Young, 655. 
 
 Myers v. L. & S. W. Bail., 466, 468. 
 Mytton V. Mid. Rail. Co., 487, 489, 507. 
 
 Napier, Ex parte, 1060. 
 Nargett v. Nias, 527, 555, 557. 
 Nash, Ex parte, 1067. 
 
 — V. Dickenson, 652. 
 
 — V. Lucas, 526. 
 Nathan v. Buckland, 454. 
 
 National Guar. Manure Co. v. Donald, 
 
 134. 
 Naylom. CoUinge, 245. 
 
 — v. Mangles, 443. 
 Neale v. Cripps, 261. 
 
 — V. Mackenzie, 519. 
 Neat V. Harding, 36!. 
 Needham v. Bawbone, 321. 
 Neilau v. Hanny, 321. 
 NeilsoniJ. Betts, 1031. 
 Nelson's Case, 139. 
 
 Nelson v. Couch, 392, 410, 969. 
 
 — V. Mackintosh, 436. 
 Nepoter, The, 396. 
 Neville, Ex parte, 403. 
 Newbold r. Coltman, 701, 702. 
 Newbould v. Met. BaU. Co., 749. 
 
 New Bruns., &c.. Bail. Co. v. Conybeare, 
 840, 851. 
 
Ixii 
 
 INDEX OF cases: 
 
 New Bnirs., &c., Rail. Co. v. Muggeridge, 
 
 Newby v. Colt's Firearms Co., 931. 
 
 — V. Harriaon, 100, 101. 
 Newcastle (Duke of) v. Clark, 3C3. 
 
 — — r.Hundredof Brox- 
 
 towe, 311. 
 
 — — V. Morris, 659. 
 Newcombe ]>. De Eoos, 1044. 
 Newman v. Bendyshe, 698. 
 
 New Eiver Co. v. Johnson, 718. 
 Newsam v. Carr, 633. 
 Newsome v. Newsome, 889. 
 Newton v. Beek, 337. 
 
 — V. Boodle, 1024. 
 
 — V. Cubitt, 12. 
 
 — V. Ellis, 742, 766. 
 
 — V. Harland, 269, 573, 650. 
 
 — V. Holford, t:61. 
 
 — u. Newton, 337, 443. 
 
 — v. Eowe, 1011. 
 
 — ■„. Scott, 519. 
 Nicboll V. Allen, 56. 
 
 — V. Barley, 660. 
 NichoUs V. Chamberlain, 85. 
 
 — V. Parker, 981. 
 
 Nicholson v. Great West. Rail. Co., 515. 
 
 — V. Lane. & York. Bail. Co., 1 82. 
 
 — V. Mouncey, 394. 
 
 — v. Williams, 280. 
 NioUlin v. Williams, 144. 
 Nicoll V. Glennie, 365, 935, 942. 
 Nicolls V. Bastard, 364, 454, 505. 
 Nightingale v. Adams, 652. 
 Nixon V. Freeman, 526. 
 
 — V. Eoberts, 391. 
 Nodeu V. Johnson, 574, 601. 
 Norbury (Lord) v. Kitchen, 65. 
 Norman v. Westcombe, 561. 
 Normand's Patent, 49, 
 Normandy, The, 395. 
 
 Norris v. Baker, 195. 
 
 — 1). Irish Land Co., 1066, 1068, 
 
 1081. 
 
 — V. Seed, 686. 
 
 — • 0. Staps, 36. 
 
 — V. Williams, 438. 
 North V. Cox, 108. 
 
 — V. Get. Northern Eail. Co., 1032. 
 
 — V. Holrayd, 1043, 1051. 
 
 — V. Miles, 677. 
 
 — V. Smith, 25, 381. 
 North-East. Eail. Co. v. Crossland, 89, 91. 
 
 — ' — •B.Elliott, 89, 92, 
 
 , 1S9. 
 
 Northam v. Bowden, 302, 370. 
 
 — V. Hurley, 148. 
 Northampton's (Lord) Case, 817. 
 Northampton (Mayor of) v. Ward, 270. 
 Northumberland (Duke of) v. Houghton, 
 
 282. 
 Northumbria, The, 391. 
 Norton v. NichoUs, 46. 
 
 — V. ScholeBeld, 162, 209, 815. 
 Norway v. Eowe, 261. 
 
 Norwood V. Pitt, 590, 1020. 
 
 Notara v. Henderson, 396. 
 
 Nott V. Nott, 885. 
 
 Nottingham Town Clerks' Case, 1061. 
 
 Noyello V. Sudlow, 41. 
 
 Nugent V. Vetzera, 897. 
 
 Nuova Eaffaelina, The, 963. 
 Nuttall V. Braoewell, 67. 
 — ' V. Staunton, 523. 
 Nutting, Ex parte, 352. 
 Nylander a. Barnes, 1026. 
 
 Cakes •;;. Turquand, 841. 
 
 — V. Wood, 572, 575, 607. 
 Oakley v. Dayis, 975. 
 
 — V. Kensington Can. Co., 764. 
 
 — V. Ports, and Eyde St. Packet 
 
 G6., 470, 494. 
 O'Brien v. Bryant, 826. 
 
 — V. Clement, 815, 816. 
 — • V. Lewis, 446. 
 
 Ogle V, Atkinson, 453. 
 
 O'Hanlan v. Gt. West. Eail. Co., 513. 
 
 Ohrby v. Eyde Comm., 740. 
 
 Ohrloff V. Briscall, 392. 
 
 Oldacre v. Hunt, 215. 
 
 Oldham v. Langmead,.54. 
 
 Oldham Bridge Co. v. Heald, 948. 
 
 Olivantji. BeriBo, 366. 
 
 Olive V. Smith, 449. 
 
 Oliver v. Bartlett, 350. 
 
 — V. OUver, 337, 460, 883. 
 Olliet V. Bessey, 639, 666. 
 Onley v. Gardiner, 129, 133. 
 
 Onslow V. , 259. 
 
 Oppenheim v, Eussell, 491. 
 
 — t). White Lion Hotel Co., 499. 
 Oppermanv. Smith, 535. 
 Orchard v. Eackstraw, 440. 
 Ord, Expwrte, 359. 
 Orme v. Orme, 882. 
 Ormond v. Holland, 188. 
 Ormrod v. Huth, 835, 851, 852. 
 Orpheus (The), 391. 
 Orpwood V. Barkes, 820. 
 Osbond V. Meadows, 7. 
 Osborn v. Gough, 593. 
 Ostell V. Lepage, 964. 
 Overend & Co. v. Gurney, 408, 940. 
 Overton v. Freeman, 205, 415. 
 Owen V. Burnett, 477. 
 
 — V. Knight, 368. 
 
 — V. Legh, 542. 
 
 — V. Lbnd. and N. W.- Eail. Co., 
 
 1023. 
 Owens V. Jones, 948. 
 
 — V. Woosnam, 948. 
 Oxlade, In re, 468. 
 
 — V. North-East. Eail. Co., 468. 
 Oxley V. Watts, 320, 537. 
 
 Packeb v. Wellstead, 140. 
 Packington's Case, 259. 
 Padmore v. Lawrence, 806. 
 Page V. Cowasjee Edulgee, 321. 
 
 — V. Hatchett, 74. 
 
 — V. Pearce, 1013. 
 Paget's Case, 253. 
 
 Painter v. Liv. Gas Co., 671, 710, 730. 
 
 — V. Lend, and Br. Eail. Co., 616. 
 Palk V. Skinner, 133. 
 
 Palmer's Case, 98, 
 Palmer v. Fletcher, 95. 
 
 — V. Grand June. Eail. Co., 765. 
 
 — V. Jarmain, 328. 
 
 — V. Lond. and Br. Eail., 492, 515. 
 
 — V. Lond. and S. W. Eail. Co., 516 
 
INDEX OF CASES. 
 
 Ixiii 
 
 Panton v. Isham, 248, 254, 257. 
 
 — V. Jones, 564. 
 
 — V. Williams, 632, 633. 
 Pape V. Lister, 963. 
 Papendiok v. Bridgwater, 154. 
 Pappa V. Rose, 636. 
 
 Pardington -v. South Wales Rail. Co. 
 
 483. 
 Pardo V. Binghani, 970. 
 Pariente r. Pennell, 350. 
 Paris V. Levy, 795. 
 Parke v. Eliason, 356. 
 Parker v. Bristol and Ex. Rail. Co., 1050, 
 1052. 
 
 — r. Crole, 941. 
 
 — u. Flint, 495, 502. 
 
 — V. Godin, 365. 
 
 — V. Gt. West. Rail. Co., 493. 
 
 — i). Leach, 114. 
 
 — r. MitcheU, 131. 
 
 — V. Norton, 941. 
 
 — V. Patrick, 442. 
 
 — V. Smith, 153. 
 
 — V. Staniland, 302."* 
 
 — II. Tootal, 1006 
 Parkes v. Sterena, 51, 54. 
 
 Park Gate Iron Co. v. Coates, 1051. 
 Parkins r. Scott, 5, 804, 811. 
 Parkinson v. Gt. Wesi Rail., 515. 
 
 — V. Lee, 851. 
 
 — V. Parkinson, 885. 
 Parmenter v. Tf ebber, 518. 
 Parmiter v. Coupland, 796, 830. 
 Parr v. Lillicrap, 1014. 
 
 Parrett Navigation Co. v. Robins, 177. 
 Parrington v. Moore, 579. 
 Parrot v. Carpenter, 797. - 
 Parrott«. Anderson, 525, 539. 
 
 — V. Palmer, 261, 1033. 
 ■Parry v. Roberts, 436. 
 
 — V. Thomas, 297. 
 Parsons v. Brown, 630. . 
 
 — V. Gingell, 532, 533. 
 
 — V. Lloyd, 696, 662. 
 
 — V. St. Matthews, Beth. Green, 
 
 741. 
 Parteriche v. Powlett, 237. 
 Parton v. Williams, 729, 732. 
 Partridge v. Elkington, 668. 
 
 — V. Gardner, 1006. 
 
 — V. Scott, 60, 124. 
 
 Pasley v. Freeman, 26, 836, 838, 848, 
 
 870. 
 Patch V. Ward, 715. 
 Pater, Se, 713, 714. 
 
 — V. Baker, 810, 986. 
 Paterson v. Harris, 974. 
 
 — V. Paterson, 883. 
 
 _ V. Wallace, 397. 
 Patrick v. Colerick, 293, 310. 
 Patrickson v. Patrickson, 903. 
 Patten v.Rea, 419, 421. 
 Patterson v. Patterson, 446, 905. 
 Pattison v. Jones, 789. 
 Paul V. Patd, 890. 
 Pauli, Exparte, 357. 
 Pawly V. Holly, 464. 
 Pawsey v. Gooday, 1052. 
 Pawson V. Watson, 837, 845. 
 Payne v. Beaumorris, 802. 
 
 — V. Brander, 339. 
 
 Payne v. Rogers, 178, 211. 
 
 — V. Shedden, 120, 137. 
 Peaceable v. Watson, 985. 
 Peaohey v. Rowland, 204, 205. - 
 Peacock v. Bell, 954. 
 
 — •!>. Peacock, 889, 890. 
 
 — V. Reynal, 818. 
 Peake v. Oldham, 798. 
 Pearce v. Ornsby, 823. 
 
 — V. Pearce, 891. 
 Pearcy v. Walter, 598. 
 Peardon v. Underbill, 307. 
 Pearman v. Pearman, 883. 
 Pears v. Wilson, 1043, 1045. 
 Pearse ■y..Coker, 315. 
 
 — V. Dobinson, 715. 
 Pearson v. Glazebrook, 951. 
 
 — V. lie Maitre, 823. 
 
 — V. Spencer, 86, 140, 141. 
 Pease v. Chaytor, 686, 687, 700, 701, 713, 
 
 723. 
 
 — V. Gloahec, 342., 
 Peatfield v. Barlow, 446. 
 Pecliell V. Watson, 622. 
 Pedgrift v. Chevallier, 717. 
 
 Pedley v. Davis, 637, 701, 711, 721, 725. 
 Peek V. Gurney, 840. 
 
 — V. Larsen, 438. 
 
 — v. North Staff. Rail. Co., 435, 480, 
 
 482, 483, 484. 
 
 — V. Spencer, 160. 
 
 — V. Waterloo, &c.. Loo. Bd., 195, 
 
 196. 
 Peel's Case, 841. 
 Peer v. Humphrey, 338, 442. 
 Peerless, The, 390. 
 . — Me, 705. 
 Pegler v. Monm. Rail. Co., 492. 
 Pell V. Northampton and Banbury Rail. 
 
 Co., 773. 
 PeUas V. Bresslauer, 1014. 
 Pemberton v. CoUs, 801. 
 Pembroke's (Earl of) Case, 107. 
 Penfold V. Westcote, 799. 
 ' Penn v. Bibby, 1031. 
 
 — V. Jack, 52, 1029. 
 
 — V. Ward, 602, 606. 
 PenneU v. Woodburn, 994. 
 Penny, In re, 642, 717, 768, 1005. 
 Penruddock's Case, 162, 202, 923. 
 Penson v. Gooday, 990. 
 Penton v. Browne, 648. 
 
 — V. Robart, 244. 
 Peppercorn i). Hofman, 721. 
 Peppin V. Shakspear, 81, 296. 
 Percival v. Nanson, 982. 
 
 — V. Stamp, 301, 652, 659. 
 Pcrham, In re, 695. 
 
 Perkins v: Smith, 936. 
 
 — V. Vaughan, 998. 
 Perklnson v. Gilford, 939. 
 Perren v. Monm. Rail. Co., 977. 
 Perrot v. Perrot, 259. 
 
 Perry v. Bennett, 1022. 
 
 — V. Fitzhowe, 195. 
 
 — i). Truefitt, 875. 
 Ferryman v. Lister, 603, 614. 
 Peskett V. Somers, 519. 
 Fetch V. Tutin,*99. 
 
 Peter v. Daniel, 298. 
 
 — V. Kendal, 12. 
 
Ixiv 
 
 INDEX OF CASES. 
 
 Peterson v. Ayre, 992. 
 
 Peto V. Blades, 858. 
 
 Petrie v. Lamont, 551, 626, 629, 943. 
 
 Pettiniangin, Sxpwrte, 689. 
 
 Pewtriss v. Austen, 854, 864. 
 
 Peyton v. London (Mayor of), 93, 125. 
 
 Phelps V. Lend, and N-. Western Kail. Co., 
 
 467, 488. 
 Pheng V. Popplewell, 518. 
 Pheysey v. Vieary, 86, 141. 
 Philippine, The, 447. 
 Philips f. Biron, 596. 
 Phillips V. Bacon, 1006. 
 
 — V. Barlow, 236. 
 
 — u. Berryman, 562, 966, 
 
 — 1^. Clark, 482. 
 
 — V. Eyre, 29, 31. 
 
 — V. Homfray, 312. 
 
 — V. Hudson, 159. 
 
 — V. Jansen, 818. 
 
 — V. Jones, 462. 
 
 — ■„. Phillips, 882, 889. 
 
 - v. Naylor, 617, 620, 631. 
 
 — V. Shervill, 519. 
 
 — V. Smith, 234. 
 Phillipson v. Gibbon, 286.' 
 Philp V. Squire, 906. 
 Philpott V. Dobbinson, 559. 
 
 — ■o. Kelley, 322. 
 Phosphate of Lime Co. -o. Green, 772. 
 Phythian v. White, 305. 
 
 Pianciani v. Lond. and S. W. Rail. Co., 
 
 476, 508. 
 Pickard v. Sears, 984. 
 
 — V. Smith, 169, 172. 
 Pickering v. Dowson, 860. 
 
 — v'. Eudd, 206. 
 
 Pickford .v. Grand June. Kail. Co., 466, 
 
 507. 
 Pierce v. Bartrum, 36. 
 Pierpoint v. Shapland, 976. 
 Piggot V. East Co. Rail. Co., 251, 255. 
 Piggott V. Biftles, 538, 563, 567. 
 
 — s;. Cubley, 321, 331., 
 
 — V. Stratton, 984. 
 Pike V. Carter, 688. 
 
 — V. Nicholas, 42. 
 
 Pilgrim v. Southamp., &c., Kail. Co., 304. 
 Pilkington v. Cooke, 664, 673. 
 
 — V. Kiley, 593. 
 Pillot i>. Wilkinson, 326. 
 Pilmore v. Hood, 862. 
 Pim V. Ciirell, 981. 
 
 Pindar v. Wadsworth, 144, 257. 
 Pinhom v. Souster, 274, 561. 
 Pinkett v. Wright, 359. 
 Pinnington v. Galland, 87. 
 Pipe ?). Euloher, 981. 
 Pippet V. Hearn, 633. 
 Pitcher v. King, 644. 
 Pitt V. Donovan, 810. 
 
 — V. Shew, 526. 
 
 — V. Yalden, 404. 
 Pitts II. Gaince, 919. 
 Plant V. James, 141. 
 
 Plasterers' Co. v. Parish Clerks' Co., 127. 
 Plas-yn-Mhowys Mining Co., He, 653. 
 Playfair v. Miisgrove, 650. 
 Playford v. United Kingilom Telegraph 
 
 Co., 14, 437. 
 PUickwell V. Wilson, 386. 
 
 Plumer v. Plumer, 904. 
 Plunket V. Gilmore, 29. 
 Poe, Inre, 1045. 
 Polden V. Bastard, 140. 
 Polhill V. Walter, 836, 853, 864. 
 Polkinhom v. Wright, 573, 605. 
 Pollard, Ex parte, 71 i. 
 Pollen V. Brewer, 269. 
 Pollitt V. Forrest, 520, 559. 
 Pollock V. Lester, 164. 
 Pomfret v. Kicroft, 86, 96, 143. 
 Ponsford v. Walton, 347. 
 Pontifex v. Biguold, 864. 
 Poole's Case, 244. 
 Poole V. Huskisson, 221. 
 Popham V. Pickburn, 783, 794. 
 Portland (Duke of) v. Hill, 104. 
 Portman v. Middleton, 871, 992. 
 Postlethwaite v. Gibson, 721. 
 Potter V. Faulkner, 400. 
 
 — V. North, 113. 
 Potteries, Shrewsbury, & North Wales 
 Kml., He, 653. 
 V. Afinor, 653. 
 Potts V. Port Carlisle Co., 187, 398. 
 
 — V. Plunkett, 187, 398. 
 
 — V. Smith, 153. 
 Poulson V. Thirst, 766. 
 
 Poulton V. Lond. and S. West. Bail. Co., 
 
 586, 597. 
 Pow V. Davis, 854, 995. 
 Powell V. Hodgetts, 983. 
 
 — v. Kees, 939. 
 
 — V. Salisbury, 155. 
 
 — V. Thomas, 156. 
 Powes V. Marshall, 555. 
 Powle V. Gandy, 1016. 
 
 Powlett V. Bolton (Duchess of>, 333. 
 Powys V. Blagrave, 237, 238, 261," 
 Poynton v. Gill, 162. 
 Pozzi V. Shipton, 942. 
 Pratt V. Brett, 258. 
 
 — V. Jennef, 891. 
 
 — V. Pratt, 294. 
 Preece v. Corrie, 518. 
 Prentice v. Harrison, 674. 
 Prestige v. Woodman, 727. 
 Preston, In re, 893. 
 Price V. Harewood, 658. 
 
 — V. Hewett, 857. 
 
 — V. Messenger, 721. 
 
 — V. Seeley, 581, 604. 
 
 — V. Severn, 1003. 
 
 — V. Woodhouse, 979. 
 Priestley v. Fowler, 398. 
 Prickett V. Gratrix, 692, 709, 728. 
 
 — V. Piatt, 353. 
 Prince v. Molt, 1004. 
 Prince Albert v. Strange, 10, 1032. 
 Princess Royal, The, 397. 
 Pringle v. Taylor, 377, 991. 
 
 — V. Wernham, 153. 
 Pristwlck V. Poley, 405. 
 Pritchard v. Long, 369, 416. 
 Pritchett V. Boevey, 379, 609, 996. 
 Proctor V. Harris, 170, 174. 
 
 — V. Hodgson, 88, 297. 
 Progress Assurance Co., JJe, 531. 
 Prohibitions del Roy, 1037. 
 Protheroe v. Mathews, 373. 
 
 i — May, 54. 
 
Index oV cases. 
 
 1: 
 
 XV 
 
 Proud V. Holis, 308. 
 Proudfoot V. Montefiore, 862. 
 ProudloTe v. Twemloir, 567. 
 Provost, &o., Queen's College v. Hallett, 
 
 232. 
 ■ Pudding Norton (Overaeers of), Se, 715. 
 Pugh V. Acton, 246. 
 
 — V. Griffith, 6i9. 
 
 — r. Vaughau, 238. 
 Pullen V. Palmer, 524. 
 Pulsford V. Richards, 837, 870. 
 Pultney v. Keymer, 444. 
 Purcell V. Macnamara, 632. 
 
 — -0. Nash, 259. 
 Pursell V. Home, 570, 571. 
 Purves V. Landell, 405. 
 Pye V. Mumford, 301. 
 Pyer v. Carter, 86. 
 
 I^m V. Gt. North. Eail. Co., 409, 424, 
 
 1002. 
 Pyne v. Dor, 236. 
 
 QuAKMAN v: Burnett, 388. 
 
 Queensberry (Duke of) v. Shebbeare, 10, 
 
 1032. 
 Queen, The, 394. 
 Queen's Case, The, 977. 
 Queen's College (Provost, &c., of), v. 
 
 Hallett, 232. 
 Quick V. Staines, 652. 
 
 Eacb, In re, 894. 
 — V. "Ward, 80, 101. 
 Eackham v. Jesup, 370. 
 KadcLff V. D'Oyly, 940. 
 Eaitty. MitcheU,-441. 
 Kalston v. Smith, 52. 
 Earn V. Lamley, 780. 
 Eamsay, Se, 640. 
 Eamsbottom v. Buckhurst, 675. 
 Eamshire v. Bolton, 870. 
 Eance's Case, 408. 
 Eand v. Vaughan, 535. 
 Eandal v. Gockran, 253, 1001. 
 EandaU v. Eaper, 994, 995, 996. 
 
 — 11. Stevens, 278. 
 
 Eandell v. Trimen, 837, 853, 864, 871, 
 993 
 
 — V. Wheble, 677. 
 Eandleson v. Murray, 414. 
 Eangeley v. Midland Eail. Co., 770. 
 Eankin v. De Medina, 674. 
 
 Eansome v. East. Co. Eail. Co., 492, 514, 
 
 515. 
 Eaphael v. Bank of England, 328, 329, 
 343. 
 
 — v. Goodman, 646. 
 
 — V. Pickford, 485. 
 
 — V. Thames Valley Eail. Co., 771. 
 Eapson v. Cubitt, 415. 
 
 Eashdall v. Ford, 841, 846. 
 Eatclifi V. Davies, 451. 
 Eatcliffie v. Barnard, 406. 
 
 — V. Burton, 647. 
 
 — V. Eatclifle, 899, 902. 
 Eawlings v. Bell, 546, 855, 864, 937. 
 
 — i>. Till, 571. 
 Eawlins v. Wickham, 973. 
 Eawnsley v. Hutchinson, 720. 
 Ilawstorne v. Backhouse, 199. 
 
 Eawstron v. Taylor, 124. 
 Eaymond v. Fitch, 924. 
 Eea V. Sheward, 810, 319, 369. 
 Eead v. Burley, 529. 
 
 — V. Coker, 570, 589, 721 
 
 — V. Edwards, 23, 192, 266, 267, 373. 
 
 — V. Gt. East. Rail. Co., 409. 
 
 — V. Vict, and Pimlico Eail. Co., 756, 
 
 759. 
 Eeade v. Conquest, 41, 43, 44. 
 
 — V. Lacy, 44. 
 
 Eeadhead v. Midi. Eail. Co., 383, 385. 
 Eeddie v. Scoolt, 911, 912. 
 Eedfern v. Smith, 231. 
 Eedway v. Webber, 1007. 
 Reece v. Eigby, 404. 
 
 — V. Taylor, 604. 
 Eeed v. Harrison, 264. 
 
 — v.. Taylor, 621. 
 
 — V. Thoyts, 676. 
 
 Eeedie v. Lond. & N. Western Eail. Co., 
 
 412, 414. 
 Eees V. Bowen, 62]9. 
 
 — V. Davies, 699. 
 
 — i: Williams, 1049, 1052. 
 Eeeve v. Holgate, 799. 
 
 — V. Palmer, 432, 456, 460. 
 
 — V. Taylor, 606. 
 
 — V. Whitmore, 533. 
 Eeeves v. Capper, 450. 
 
 Eeg. V. Aberdare Canal Co., 715, 1038. 
 
 — V. Aberdeen Canal Co., 638. 
 
 — V. Abrahams, 1057, 1059. 
 
 — V. Aire & Calder Nav, Co., 92, 757, 
 
 1070. 
 
 — V. AUen, 688, 1049. 
 
 — n. Ambergate, .1055, 1060, 1076, 
 
 1076. 
 
 — V. Ardley, 873. 
 
 — V. Artwright, 1038. 
 
 — V. Ashby Folville, 228. 
 
 — V. Aston, 711. 
 
 — V. Badger, 714, 1049. 
 
 — V. Baines, 1063. 
 
 — V. Baker, 229. 
 
 — V. Balby, &o.. Turnpike Trust, 1059 
 
 — V. Baleman, 194. 
 
 — V. Bedfordshire, 981. 
 
 — V. Bessel, 45. 
 
 — V. Birm., &c., Eail. Co., 220, 1070, 
 
 1074. 
 
 — v. Blackburn, 699. 
 
 — V. Blanshard, 1056. 
 
 — ■ V. Bolton, 717. 
 
 — V. Boteler, 700, 1055. 
 
 — -V. Bradford Nav. Co., 735. 
 
 — V. Brickhall, 696, 714. 
 
 — V. Brancaster Churchwardens, 1069. 
 
 — V. Bristol Dock Co., 1059. 
 
 — 11. Bristol & Exeter Eail. Co., 1059, 
 
 1072. 
 
 — V. Brownj 756. 
 
 — V. Browne, 719. 
 
 — '0. Bryan, 873. 
 
 — V. Bucks (Justices of), 694, 717. 
 
 — V. Burslem Local Board, 1070, 1071. 
 
 — V. Caledonian Eail. Co., 1072. 
 
 — V. Cambrian Eail. Co., 13, 753, 754. 
 
 — V. Casterton, 706. 
 
 — u. Cheadle Highway Trusteeb, 1 072, 
 
 — V, Cheek, 1056, 1077. 
 
 e 
 
Ixvi 
 
 INDEX Of CASES. 
 
 Bog. V. 
 
 — V. 
 
 — V. 
 
 — I'. 
 
 — V. 
 
 — V. 
 
 — V. 
 
 — V. 
 
 — V. 
 
 t— V, 
 
 Cheltenham Commers., 713, 714, 
 718. 
 Chester (Dean and Chapter of), 
 
 1064. 
 Chichester (Bishop of),105S. 
 Chorley, 138. 
 
 Churchwardens, &o., 1059. 
 Coles, 1038. 
 Collins, 719. 
 Colvill, 1057. 
 Commissioners of Woods and 
 
 Forests, 1070. 
 Cooper, 818. 
 Cotesworth, 571. 
 Cridland, 698, 707. 
 Crowan, 705. 
 Cumberland (Cle'rt, &c. of), 
 
 1063. 
 Darlington Local Board; 735. 
 Darlington School Governors, 
 
 1064, 1079. 
 Davis, 721. 
 Deny, 697. 
 Derby, 1065. 
 
 Derbys. &c., Eail. Co., 1068. 
 Dickenson, 702, 713, 716, 717. 
 Dodsdn, 698. 
 
 Dolgelly Guard., &c., 1066. 
 . DriscoU, 672. 
 Dundas, 873. 
 Eagleton, 873. 
 
 East. Co. Kail. Co., 1054, 1072, 
 East Mark, 222. 
 East Biding Justices, 1056. 
 Evans, 874. 
 Fall, 1076, 1078. 
 Farrer, 228. 
 Fox, 1057, 1061. 
 Frere, 493. 
 Garland, 1054, 1066. 
 Gen. Cemet. Co., 1068,1081. 
 Gen. Council Med., &c., 1062. 
 Gillyard, 715. 
 Goodrich, 1056. 
 Gt. North of Engl. Eail. Co., 
 
 220. 
 Grey, 716. 
 
 Halifax Road Trustees, 1071. 
 Hampshire (Justices of), 1008. 
 Harden, 194, 951. 
 Hardey, 83. 
 Harris, 219. 
 Harwood, 1056. 
 Hawkhurst, 225, 
 Hawkins, 601, 697. 
 Hellingley, 718. 
 Henson, 218. 
 
 Herefordshire Justices, 690. 
 Hereford (Mayor of), 1073. 
 Herford, 1038. 
 
 Hertfordshire Justices, 690, 713, 
 Higginson, 701. 
 
 High Wycombe Bail. Co., 1070. 
 Higham, 718." 
 Hopkins, 1060. 
 Hornsea, 227. 
 Hornsey (Inhab. of), 225. 
 Howes, 894. 
 Hull and Selby Eail. Co., 1069, 
 
 1073. 
 Huntingtower (Lord), 714. 
 
 Eeg. V. Huntley, 720. 
 
 — v., Huntsworth, 700. 
 
 — V. Hurstbourne Tarrant, &c,, 10G9, 
 
 1071. 
 
 — V. Jenkins, 194. 
 
 — V. Johnson, 570, 697, 707. 
 
 — u. Kendal, 1067. 
 
 — V. Kent Justices, 1055. 
 
 — V. Kilham, 874. 
 
 — V. Lambarde, 712. 
 
 — V. Langley, 832. 
 
 — V. Ledgard, 1072, 1079, 
 
 — V. Lee, 873. 
 
 — i>. Leech, 218. 
 
 — V. Leeds (Mayor of), 1065, 
 
 — V. Leicester Deputies, 1056. 
 
 — V. Levi, 371. 
 
 — V. Light, 680. 
 
 — V. Liver., Manch,, &c,, Eail, Co., 
 
 1068. 
 
 — V. Liverpool Eecorder, 1056, 
 
 — V. Lend, and Coleraine Eail, Co,, 
 
 1088. 
 
 — V. Lond. and N. W. Bail. Co., 749, 
 
 756,768,769,1055, 1057,1075, 
 
 — V. Lond, and S, W, Eail, Co,, 1072. 
 
 — V. London (Lord Maj'or of), 762, 
 
 — V. Long, 1048, 
 
 — V. Longton Gas Co,, 219, 738, 767. 
 
 — V. Lundie, 38. 
 
 — J), MoCIeverty, 337. 
 
 — V. Mainwaring, 719, 902, 1074, 
 
 — V. Manoh. & Sheffield Eail, Co,, 638, 
 
 642, 690, 762. 
 
 — V. Manktelow, 916. 
 
 — V. Mann, 38. 
 
 — V. Martin, 570. 
 
 — V. Master, 942. 
 
 — V. Mathias, 221. 
 
 — V. Metrop, Board, &o,, 61, 67, 748, 
 
 754. 
 
 — V. Metrop. Com. of Sewers, 749. 
 
 — V. Metrop. Police (Eeoeivcr of), 
 
 1060. 
 
 — V. Mid. Eail, Co., 1068. 
 
 — V. Middlesex Justices, 720. 
 
 — V. Monmouth (Mayor of), 10JI4, 
 
 1057. 
 
 — V. Munster, 586. 
 
 — V. Musson, 280. 
 
 — V. Mutters, 172. 
 
 — V. Newhorough, 1049. 
 
 — V. Newton Ferrers, 707. 
 
 — V. New Windsor (Mayor of), 1074. 
 
 — V. Newport Guardians, 105S. 
 
 — V. Norfolk Comm. of Sewers, 1069. 
 
 — V. North Mid. Eail. Co., 1055. 
 
 — V. Norwich and Brandon, Eail. Co., 
 
 1072. 
 
 — V. Nunneley, 699. 
 
 — V. Orchard, 219. 
 
 — V. Orton Trustees^ 1059, 1066,1067, 
 
 — V. Oxford (Mayor of), 1065. 
 
 — V. Oxford, &c., Eoads, 1057. 
 
 — V. Payn, 683. 
 
 — V. Paynter, 719, 1077. 
 
 — V. Petrie, 222. 
 
 — V. Pinder, 586, 
 
 — V. Ponsfofd, 1069. 
 
 — V. Powell, 1074, 1077. 
 
 — V. Pratt, 709, 
 
INDEX OF CASES. 
 
 Ixvii 
 
 Eeg. V. Purdey, 718, 720. . 
 
 — v. Ra^g, 873. 
 
 — V. Kiimsden, 227. 
 
 — V. Band, 633, 690. 
 
 — V. Eiall, 1051. 
 
 — v. Richards, 718, 1055, 1056. 
 
 — V. Richmond Eeoordor, 1055, 1071. 
 
 — V. Rochester (Dean, &c., of), 106i. 
 Roehuok, 873. 
 Eogier, 219. 
 Rose, 36. 
 Rotherham, 1069. 
 Rynd, 1070. 
 Sadlers' Co., 1062, 1060. 
 St. Albans, 714. 
 
 St.George's, Bloomsbury, 703, 706. 
 Saintiff, 219. 
 St. Luke's, 753. 
 St. Luke's, Chelsea, 1073. 
 St. Martin's, 1065. 
 St. Stephen's, 1065. 
 Salford, 1038. 
 Salop, 700. 
 Scaiie, 1052. 
 Scott, 698. 
 Scotton, 695. 
 Sheffield (Mayor of), 743, 772, 
 
 1049. 
 
 Sherwood, 873. 
 
 Skinner, 807. 
 
 Smith, 873, 893, 1062. 
 
 SouthamptonPortCommrs., 1068, 
 1073. 
 
 S. B. Rail. Co., 1073. 
 
 South Wales Rail. Co., 642, 758. 
 
 Spencer, 715. 
 
 Stamford (Mayor of), 1077. 
 
 Stannard, 219. 
 
 Stephens, 175. 
 
 Stewart, 1059. 
 
 Stimpson, 111, 699. 
 
 Stock, 710. 
 
 Stockton, 705. 
 
 Stone, 751. 
 
 Strand Board of Works, 283. 
 
 Suffolk Justices, 690. 
 
 Suffolk, 1049, 1051. 
 
 Surrey Justices, 227, 690, 1049. 
 
 Thallman, 219. 
 
 Timmins, 894, 915. 
 
 Tithe Commissioners, 1078. 
 
 Totness, 705, 710. 
 
 Train, 219, 225. 
 
 Treasury (Comms. of), 1060. 
 
 Treasury (Lords of), 1060. 
 
 Trustees of Cheadle Highw., 
 1072. , 
 
 Twiss, 1039. 
 
 United Kingd. Teleg. Co., 225. 
 
 Vaiighan,"749. 
 
 Victoria Park Co., 1059, 1068. , 
 
 Wallasey Local Board, 749. 
 
 Warwick Justices, 714. 
 
 Watson, 218, 219. 
 
 Watts, 178. 
 
 West Riding Justices, 713, 1056. 
 
 Whitecross Street Prison (Gover- 
 nors of), 1057. 
 
 Williams, 219. 
 
 Wing, 1068. 
 
 Wood, 36, 88, 702, 715, 
 
 Keg. V. Wood Ditton Surveyors, 1058. 
 Reguart v. Porter, 521. 
 Eeid V. Ashby, 1017. 
 
 — 1'. Fairbanks, 375. 
 
 — V. Margison, 675. 
 Rcignolds v. Edwards, 308. 
 Rennison v. Walker, 945. 
 Renshaw v. Bean, 136. 
 Revett V. Brown, 303. 
 Revis V. Smith, 781, 807. 
 Rex V. Abingdon (Lord), 793. 
 
 — u. Abingdon (Mayor, &c., of), 1073, 
 
 1079. 
 
 — V. Allen, 715. 
 
 — V. Amphlit, 819. 
 
 — i). Arkwright, 50, 51, 53. 
 
 — V. Atkins, 715. 
 -— V. Austin, 706. 
 
 — V, Averiug Atte Bower, 1054. 
 
 — V. Axbridge (Mayor, &c., of), 1066. 
 
 — i>. Backhouse 649. 
 
 — V. Bagley, 227. 
 
 — V. Bank of England, 1068. 
 
 — 1}. Barker, 1066. 
 
 — V. Barr, 220. 
 
 — V. Beare, 817. . 
 
 — V. Bedford Level, 1065. 
 
 — V. Benn, 1056. 
 
 — V. Berkley, 715. 
 
 — V. Betterton, 217. 
 
 — V. Binningham Canal Co., 1055. 
 
 — V. Birmingham Rector, 1065. 
 
 — V. Birnie, 690. 
 
 — V. Bradshaw, 540. 
 
 — V. Brangan, 631. 
 
 — V. Brecknock, &c., Canal Co,, 1072. 
 
 — V. Bristow, 1058. 
 
 — V. Buckingham (Marquis of), 222. 
 
 — V. Burdett, 817, 819, 832. 
 
 — V. Burnahy, 698. 
 
 — V. Butterton, 261. 
 
 — V. Cambridge, 1065. 
 
 — V. Cambridge Justices, 1056. 
 
 — V. Cambridge University, 1065. 
 
 — V. Carlile, 792. 
 
 — V. Cashiobury, Justices, 710. 
 
 — V. ChaJke, 1063. 
 
 — V. Chandler, 705. 
 ■ — V. Churchill, 108. 
 
 — V. Clapham, 1061. 
 
 — V. Clear, 1059, 1072. 
 
 — V. Colchester (Mayor of ), 1065. 
 
 — v. Colebrook, 1056. 
 
 — V. Coleridge, 1059. 
 
 — V. Commissioners of Customs, 1067. 
 
 — V. Commissioners of Sewers of Essex, 
 
 110. 
 
 — V. Commissioners of Tower Hamlets, 
 
 74.3. 
 
 — v. Cotton, 519. 
 
 — V. Creevey, 793. 
 
 — V, Cross, 218. 
 
 — V, Croydon Churchwardens, 1061, 
 
 1066. 
 
 — V. Crunden, 37, 112, 219, 
 
 • — 1). Cumberland Justices, 1054, 1056. 
 
 — 1}. Ourghey, 1074. 
 
 — V, Dant, 190. 
 
 — V. Davies, 715. 
 
 — V. Davis, 706. 
 
 — V, De Manneville, 896. 
 
Ixviii 
 
 iNbEX of CASES. 
 
 Bex I'. Derbyshire Justices, 714. 
 
 — V. Dewsnaft 218. 
 — . V. Dixon, 219. 
 
 — V. Dobbyn, 706. 
 
 — V. Doberty, 613. 
 
 — I: Dorset Justices, 217. 
 
 — V. Beclesfield, 227. 
 
 — V. Edwards, 7 05. 
 
 — V. Ely (Bishop of), 1057. 
 
 — V. England (Bank of), 1068. 
 
 — V. Essex, 720, 743. 
 
 — V. Exeter (Bishop of), 1074. 
 
 — V. EaTersham Eish. Co., 1075. 
 
 — V. Gaskin, 1062. 
 
 — V. Grantham, 1056. 
 
 — V. Great Chart, 689. 
 
 — V. Great Yarmouth, 689. 
 
 — V. Greenhill, 895. 
 
 — V. Griffiths, 1074. 
 
 — V. Gudridge, 689. 
 
 — V. Hardwiok, 984. 
 
 — V. Harrison, 705. 
 
 — V. Hastings, (Mayor of), 1054. 
 
 — V. Hatfteld, 283. 
 
 — V. Hazell, 705. 
 
 — V. Hendon, 1066. 
 
 — v. Hermitage, 140. 
 
 — V. Higginson, 218. 
 
 — 0. Holt, 833. 
 
 — V. Hoseason, 688. 
 
 — V. Hostmen of Newcastle, 1067. 
 
 — V. Huggins, 191. 
 
 — V. Hull, 564. 
 
 — V, Humphery, 448. 
 
 — V. Ilehester Bailiffs, &c., 1056. 
 
 — V. Ingram, 1061. 
 
 — V. Irons, 494. 
 
 — V. James, 640. 
 
 — V. Jefferies, 708. 
 — '■ V. Jeyes, 1058. 
 
 — V. Johnson, 705. 
 
 — V. Jones, 218. 
 
 — V. Jotham, 1062, 1066. 
 
 — V. Jukes, 704. 
 
 — V. Kent Justices, &c., 1054. 
 
 — -v. King, 71 S. 
 
 — 1/. Langley, 832. 
 
 — V. Leake, 224. 
 
 — V. Leeds and Selby Kail. Co., 757, 
 
 1070. 
 
 — V. Leicester Justices, 1057. 
 
 — V. Liyenjool (Mayor of), 1063, 1075. 
 
 — V. Lloyd, 220. 
 
 — V. London Dock Co., 754. 
 
 — „. London (Mayor,&c., of), 302, 1064, 
 
 1074. 
 
 — V. Londonthorpe, 243. 
 
 — V. Lyme Kegis (Mayor of), 1075. 
 
 — V. March, 1066. 
 
 — V. Margate Pier Co., 1078, 1077. 
 
 — V. Merchant Taylors' Co., 1067. 
 
 — V. Middlesex Justices, 1056. 
 
 — V. Midhurst, 1056. 
 
 — V. Milrerton (Lord of J, 1056. 
 
 — V. Mitton, 361. 
 
 — V. Monmouth Justices, 713. 
 
 — V. Montacute (Lord), 1056. 
 
 — V. Moor Critchell, 706. 
 
 — V. Moore, 167, 218. 
 
 — V. Moreley, 713. 
 
 — V. Morley, 705. 
 
 Rex V. Morpeth Ballivos, 1061. 
 
 — V. Neil, 218. 
 
 — V. ifewcastle Coopers, &c., 38. 
 
 — V. North, 705. 
 
 — V. North Biding, &c.. Justices, 1054. 
 
 — V. Norwich (Dean, &c., of), 1066. 
 
 — V. Norwich (Mayor of), 1073. 
 
 — V. Nottingham Old Water Works, 
 
 1070. 
 
 — V. Osborne, 831. 
 
 — V. Otley, 243. 
 
 — V. Oxfordshire Justices, 710. 
 
 — V. Pagham (Commissionere of), 1, 3, 
 
 177. 
 
 — V. Pappineau, 218. 
 
 — V. Payn, 1058, 1061. 
 
 — V. Pease, 735, 738. 
 
 — V. Pedley, 165, 166, 178; 
 
 — V. Pilkington, 1079. 
 
 — V. Pocock, 832. 
 
 — V. Price, 705. 
 
 — V. Piiest, 708. 
 
 — V. Beed, 630. 
 
 — V. Bevel, 689. 
 
 — 1). Biohardson, 1063. 
 
 — ■». Eipon (Mayor of), 1073, 1079. 
 
 — V. Bislip, 827. 
 
 — V. Bobinson, 601. 
 
 — V. Bosewell, 195. 
 
 — V. Bussell, 218, 219, 226. 
 
 — V. St. Cath. Dock Co., 1068. 
 
 — V. St. George; 570. 
 
 — V. St. Nicholas, 1063. 
 
 — ■». Sankey, 446. ' 
 
 — V. Severn and Wye Eail. Co., 1059. 
 — '». SiUifant, 1057. 
 
 — V. Smallpiece, 1072. 
 
 — V. Smith, 167, 219. 
 
 — V. Southerby, 657. 
 
 — V. Sparrow, 628. 
 
 — V. Speed, 704. 
 
 — V. Stafford (Marquis of), 1059. 
 
 — V. Staffordshire .Justices, 1057 
 
 — V. Stoke Damerel, 1065, 
 
 — V. Stratford (Mayor of), 1063. 
 
 — V. Symonds, 689. 
 
 — V. Taylor, 218. 
 
 — V. Tindall, 219. 
 
 — V. Topham, 831. 
 
 — V. Tower, 1066. 
 
 — V. Treasury (Lords of), 1060. 
 
 — V. Vantandillo, 218. 
 
 — V. Ward, 219, 225. 
 
 — V. Watson, 820, 830, 832. 
 
 — V. Watts, 226. 
 
 — V. Wells (Mayor of), 1054. 
 . — V. Weltye, 832. 
 
 — V. West Torrington, 683. 
 
 — V. Westwood, 36. 
 
 — V. Wheeler, 50, 52. 
 
 — V. White, 218, 832. 
 
 — V. Wildman, 1061. 
 ~ V. Williams, §31. 
 
 — V. Wilson, 894. 
 
 — V. Wilton (Mayor of), 1063. 
 
 — V. Winchester (Mayor of), 1065. 
 
 — V. Windham, 1065, 1067. 
 
 — V. Wix, 1065. 
 
 — V. Worcestershire Canal Co., 1068. 
 
 — V. WorcesteiBhire Justices, 1066. 
 
 — V. Wright, 225, 308. 
 
INDEX OF CASES. 
 
 Ixix 
 
 Bex V. Wrightson, 832. 
 
 — V. Yarmouth (Great), 689. 
 
 — V. York (Archbishop of), 1074. 
 Eeynolds v. Barford, 663. 
 
 — V. Bowley, 352. 
 
 — V. Clark, 162. 
 
 — V. Clarke, 265. 
 
 — V. Harris, 102^, 1025. 
 — ■ V. Reynolds, 270. ^ 
 
 Rhodes v. Hull, 645. 
 
 Eice V. Dub. and Wick. Rail. Co., 1026. 
 
 Elch V. Aldred, 454, 455. 
 
 — V. Basterfleld, 166. 
 
 — V. WooUey, 540, 561. 
 Bichards v. Dyke, 1040. 
 
 — V. Prankum, 457. 
 
 — V. Gellatly, 963. 
 
 — V. Harper, 63. 
 
 — V. Johnston, 656. 
 
 — V. Lend., B., &c., Rail. Co., 
 
 486, 489, 510. 
 
 — V. Morgan, 979. 
 
 — V. Richards, 828. 
 
 — ■». Rose, 93. 
 
 — V. Symons, 368. 
 
 — V. Tm-ner, 827. 
 Richardson, Ex parte, 350, 352. 
 
 — V. Ardley, 656. 
 
 — V. Atkinson, 322. 
 
 — V. Dunn, 853, 993, 995. 
 
 — V. Goss, 449. 
 
 — V. Looklin, 201. 
 
 — V. Mellish, 996. 
 
 — V. Metrop. Rail. Co., 383. 
 
 — V. North-East. Rail., 471. 
 
 — V. Williamson, 854, 987. 
 Riehbell v. Alexander, 928. 
 Richmond v. Nicholson, 940. 
 
 — V. N. Lond. Rail. Co., 751. 
 
 — V. Smith, 498. 
 
 Ricket v. Metrop. Rail. Co., 737, 748, 
 
 754. 
 Ricketts, Bx parte, 1060. 
 
 — V. East and West India Docks 
 
 Rail. Co., 181. 
 Riddle v. Pakemap, 662. 
 Rideal v. Port, 652, 659. 
 
 — V. 6t. West. Rail. Co., 962. 
 Hideout's Trusts, Me, 898. 
 
 Rider v. Smith, 147, 208. 
 Ridgwav v. Lord Stafford, 544. 
 Riga, The, 953. 
 Rigby V. Hewitt, 389, 991. 
 Rigg V. Lonsdale, 109, 119, 314. 
 
 — V. Parsons, 256. 
 Riley v. Baiendale, 398. 
 
 Ringland v. Lowndes, 750, 955, 1069, 
 
 1071, 1075. 
 Rinquist v. Ditchell, 863. 
 Ripon (Earl) v. Hobart, 77, 1033. 
 Rippin V. Bastin, 700. 
 Riseley v. Ryle, 672, 677. 
 Eitchings v. Cordingley, 280. 
 Riviere v. Bower, 96. . 
 Roads V. Overseers of Tmmpington, 302. 
 Robbins v. Jones, 173, 178, 179, 210. 
 Robert Mary's Case, 594. 
 Roberts v. Camden, 808, 821. 
 
 — V. Carr, 220. 
 
 — V. E. C. Rail. Co., 962. 
 
 — V, Gt. West. Kail. Co., 182. 
 
 Roberts v. Haines, 62. 
 
 V. Humby, 1040. 
 
 — V. Hunt, 227. 
 
 — V. Macord, 153. 
 
 — V. Orchard, 591. 
 
 — v. Read, 763, 971. 
 
 — V. Roberts, 802. 
 
 — V. Rose, 78, 198, 21 0. 
 
 — V. Smith, 188. 
 
 — V. Taylor, 293, 572. 
 
 — V. Thomas, 651. 
 
 — ■!>. Williams, 593. 
 
 — V. Wyatt, 362. 
 Robertson v. Adamson, 187. 
 
 — V. Fleming, 14. 
 
 — V. Gantlett, 974. 
 
 — V. Stenie, 1017. 
 
 — V. Womack, 1051. 
 Robins v. Barnes, 139. 
 Robinson v. Briggs, 332. 
 
 — V. Byron (Lord), 77. 
 
 — V. Chartered Bank, 1030. 
 
 — V. Dunmore, 437, 489. 
 
 — V. GeU, 644. 
 
 — V. Gt. West. Rail. Co., 468, 482. 
 
 — V. Hoffman, 624. 
 
 — V. Lenaghan, 1042, 1045. 
 
 — 1). Litton, 259, 260. 
 
 — V. Marchant, 799, 815. 
 
 — ' V. S. West. Rail. Co., 476. 
 
 — V. Vaughton, 693. 
 
 — V. Waddington, 544. 
 
 — V. Ward, 433. 
 
 — V. Wray, 83, 109. 
 Robotham v. Robotham, 890. 
 Rochdale Canal Co. v. King, 8, 75. 
 Rochester (Mayor of) v. Reg., 1058. 
 Rocke, Ex parte, 348. 
 
 Roden v. Eyton, 538. 
 
 Rodger v. Comptoir d'Escompte de Paris, 
 
 342, 438. 
 Rodgers v. Maw, 361. 
 
 — V. NowiU, 8, 856, 864, 869. 
 
 — V. Parker, 545, 546, 564, 567. 
 Rodrigues v. Melhuish, 390. 
 Rodriguez v. Tadmire, 633. 
 
 Roe V. Birkenhead, Lane, &c.. Bail. Co., 
 
 934, 935. 
 Roebuck «. Stirling, 50. 
 Rogers, Ex parte, 359. 
 
 — V. Brenton, 101, 103, 109. 
 
 — v. Challis, 1029. 
 
 — V. Clifton, 789. 
 
 — V. Davenant, 1041. 
 
 — V. Driver, 45. 
 
 — V. Head, 436. 
 
 — V. Jones, 696. 
 
 — V. Macnamara, 7, 949. 
 
 — V. Ragendro Dutt, 12, 17, 27. 
 
 — V. Spenee, 311, 928, 960, 975. 
 
 — V. Taylor, 62, 72, 124, 149. 
 Roles V. Davis, 987. 
 
 Bolfe V. Gregory, 331. 
 — V. Peterson, 259. 
 Rolin V. Steward, 8. 
 BoUe V. Whyte, 111, 199. 
 BoUins V. Hinks, 817. 
 Romney Marsh (Bailiffs of) i>. Trinity 
 
 House, 397. . 
 Bonneberg v. Falkland Islands Co., 995. 
 EooUe V, Mid. Rail. Co., 327. 
 
IxX 
 
 INDEX OF C\SES. 
 
 Eooth V. N. East. RaU. Co., 181, 431. 
 
 — r. Wilson, 147, 153, 180. 
 Boper V. Harper, 307, 943. 
 Eoret V. Lewis, 621. 
 Kosoorla v. Thomas, 843, 864. 
 Rose V. G-roves, 175, 202. 
 
 — V. Hart, 443. 
 
 — -ti. Miles, 33, 202. 
 
 — V. Wilson, 604. 
 
 RoseweU v. Piyor, 95, 147, 166, 969. 
 Eoskell V. Whitworth, 1034. 
 Roskruge v. Caddy, 558. 
 Ross V. Adcock, 239. 
 
 — V. Estates Invest. Co., 840, 841, 842. 
 
 — V. Hill, 436, 468. 
 
 — ■». Norman, 626. 
 
 — V. Ross, 889. 
 RoBse V. Bramsteed, 503. 
 Roswell V. Prior, 166. 
 
 — V. Vaughan, 847. 
 Rotherey v. Wood, 756. 
 Routledge v. Hislop, 966.. 
 Howbotham v. Wilson, 62, 63, 98, 100, 
 
 104, 971. 
 Rowe V. Brenton, 370, 982, 
 Rowlands v. Samuel, 634. 
 Rowley v. Rowley, 884. 
 Rowning v. Goodchild, 17, 35, 39. 
 Royal British Bank, In re, 842. 
 Ruck V. Williams, 742, 768. 
 Rudd V. Scott, 589. 
 RufBey v. Henderson, 246. 
 Rugby Charity, Ex parte, 1057. 
 Rugg V. Eingsmill, 279. 
 
 — ■».■ Winchester (Bishop of), 279. 
 Rumsey v. N. East. EaU. Co., 488. 
 Runcorn v. Cooper, 115. 
 
 Bundle v. Little, 375. 
 Eushforthr. Hadfield, 443,491. 
 Eushton v^ Crawley, 51. 
 Eushworth v. Taylor, 324. 
 BusseU V. Brian^ 45. 
 
 — V. Cowley, 51i 
 
 — V. Harford, 86. 
 
 — V. Palmer, 403. 
 
 — V. Shenton, 206. 
 Rutherford d, Evans, 825. 
 Rutland's (Countess of) Case, 661. 
 Euttinger v. Temple, 898. 
 
 Eyall V. Bowles, 351. 
 Eyan v. Clark, 292. 
 
 — V. Shilcock, 526, 649. . 
 
 — V. Thompson, 560. 
 
 Byde Com. -ti. Isle of Wight Ferry Co., 
 
 1030. 
 Ryder v. Bentham, 157. 
 
 — V. Ryder, 892, 894. 
 
 Sabin v. Long, 1000. 
 SabUcich v. Russell, 327. 
 Sacheverell v. Porter, 105. 
 Sadler v. Belcher, 356. 
 
 ■ — V. Henlock, 412. 
 SafBron HiU, (Overseers of). Ex parte, 200. 
 , SagriU v. Milward, 265. 
 Sahlgreen's Case, 1085. 
 Saint Devereux v. Much Dew Church, 
 
 902. 
 St. Albans (Duke of) v. Skipwith, 239. 
 St. Germans (Earl of) v. Crystal Palace 
 
 Rail., 773. 
 
 Saint Helen's Smelting Co. v. Tipping, 
 
 164. 
 Saint John's Coll. v. Mureott, 531. 
 St. Luke V. Middlesex Justices, 1056. 
 St. Margai'et's Rochester (Banal Board 
 
 of) V. Thompson, 280. 
 St. Martin's Birmingham (Rector of). Ex 
 
 parte, 279. 
 St. Mafy Newington v. Jacobs, 270. 
 Saint Pancras Vestry v. Batterbury, 89. 
 St. Paul V. St. Paul, 888. 
 Salisbury (Marquis of) v. Gt. North. EiiL 
 Co., 282. 
 — V. Gladstone, 240. 
 
 Salisbury v. Metrop. Rail. Co., 1030. 
 Salmon v. Bensley, 202. 
 
 — V. Ward, 844. 
 
 Salter v. Metrop. Distr. Rail., 762. . 
 Salters' Co. v. Jay, 117. 
 Sammell v. Wright, 388. 
 Sampson v. Hoddinott, 64, 66, 121. 
 
 — V. Mackay, 1014. 
 
 — v. Smith, 215, 217. 
 Samuel v. Buller, 661. 
 
 — V. Payne, 577. 
 Sandeman v. Seurr, 395. 
 Sanders v. Spencer, 501. 
 Sanderson v. Bell, 439. 
 Sandford v. Clarke, 1002. 
 Sandon v. Jervis, 605, 649. 
 Sandys, Ex parte, 1063. 
 Sankey Brook Coal Co. (Re), 438. 
 Sarazin v. Hamel, 46, 
 
 Sarch v. Blackburn, 191, 192. 
 Saterthwaite v. Duerst, 907. 
 Saunders v. Bate, 987. 
 
 — V. Edwards, 971. • 
 
 — v. Mills, 791. 
 
 — V. Musgrave, 677. 
 
 — V. Newman, 121. 
 
 — V. Oliffe, 139. 
 
 — u Plummer, 495. 
 
 — V. Saunders, 882. 
 
 — V. Smith, 1029, 1032. 
 Saundersou v. Baker, 651. 
 Savage v. Brook, 38. 
 
 Savile v. Jardine, 4, 776, 798. 
 
 — V. Roberts, 622, 626, 634. 
 Savill V. Barchard, 443. 
 Saville v. Sweeney, 922. 
 
 Savin v. Hoylake Rail. Co., 1055. 
 
 Savory v. Price, 49, 61. 
 
 Sawin v. Guild, 53. 
 
 Saxby's Patent, 48. 
 
 SaxbysJ. Manchester Rail., 147, 165. 
 
 — V. Easterbrook, 1031. 
 Saxon V. Castle, 623. 
 
 Scarfe v. Morgan, 331, 439, 441. 
 Scaltergood v. Silvester, 338. 
 Schneider v. Heath, 845, 860. 
 Scholefleld v. Robb, 869. 
 
 — V. Templer, 865. 
 Sohotsmans v. Lane, and Yorksh. Kail. 
 
 Co., 1028, 1032. 
 Schroder v. Ward, 1021. 
 Schnringe v. Dowell, 221. 
 Schusters. M'Kellar, 365. 
 Sehwalbe, The, 390. 
 Scothom V. South Staff. Rail. Co., 487. 
 Scott V. Craig, 188. 
 — V. Dixon, 836, 839, 866. 
 
INDEX OF CASES. 
 
 Ixxi 
 
 SoQtt V. Dub. and Wick,!. Rail. Co., 22, 
 401. 
 
 — V. Hanson, 845. 
 
 — V. Jones, 979. 
 
 — I. London Dock Co., 18, 169, 884, 
 
 419. 
 
 — V. Mancli. (Mayor, &o., of), 736, 931. 
 
 — i>. Marshall, 676. 
 
 — V. Newington, 363. 
 
 — r. PiUiington, 964. 
 
 — V. Porcher, 342. 
 
 — V. Rayment, 1029. 
 
 — u. Soott, 394, 884. 
 
 — V. Seymour (Lord), 30, 81, 964. 
 
 — i). Shepherd, 2, 6, 415. 
 
 — V. Stanford, 42. 
 
 — V. Stansfield, 637. 
 
 — ij. Surtnan, 358. 
 
 Soott and Young, Ex parte, 51. - 
 Soratton v. Brown, 281. 
 Seagram v. Knight, 236. 
 Seare v. Prentice, 403. 
 Searle v. Law, 460. 
 
 — ■». Lindsay, 188, 399. 
 Sears v. Lvons, 7, 311. 
 
 ^ Seddon v. Seddon, 891, 900, 903. 
 
 — V. Tutop, 967. 
 Sedgworth v. Overend, 411. 
 Sedley v. Sutherland, 943. 
 
 Seixo V. Provezende, 870, 875, 876. 
 Selby V. Cryst. Pal. Distr. Gas Co., 222. 
 
 — V. Greaves, 517. 
 
 — V. Robinson, 107. 
 SeUer i>. Seller, 890, 
 SeUers v. Till, 821. 
 Selmes V. Judge, 767. 
 Sells V. Hoare, 563. 
 Selway r. Fogg, 835, 845. 
 
 — V. HoUoway, 509. 
 Semayne's Case, 648. 
 
 Semple v. Lond. and Bii-m. Rail. Co., 
 
 77, 215. 
 Senhouse v. Christian, 88. 
 Senior v. Medland, 806. 
 
 — V. Metrop. Rail. Co., 754. 
 
 — V. PaWBon, 1 58. 
 
 — V. Ward, 188, 399, 401, 402. 
 Serres v. Dod, 556. 
 
 Sewell, Exports, 881. 
 Seymour v. Greenwood, 25, 387. 
 
 — ■;;. Maddox, 187, 207, 956. 
 ShaebeU r. West, 429. 
 Shadwell v. Hutchinson, 145, 146, 155, 
 
 202, 214, 968. 
 Sharp,, Ex parte, 880. 
 
 — V. Grey, 382, 385. 
 Sharpe v. Brice, 989. 
 
 — V. Hancock, 59. 
 
 Shan-od«. Lend, and N. W.Rail. Co., 
 
 934. 
 Shattook V. Garden, 663. 
 ShatweU v. Hall, 590. 
 Shaw, In re, 352. 
 
 — V, Harvey, 353, 357. 
 Shea 11. United Assur. Co., 949. 
 Sheers v. Brooks, 648. 
 
 Sheffield Waterworks v. Yeomans, 159. 
 Shelbury v. Sootsford, 461. 
 Shelley v. Westbrooke, 895. 
 Shepherd v. Bristol and Exeter Rail. Co., 
 
 Shepherd v. Harrison, 342. 
 
 — V. Hills, 39, 751, 752. 
 Sheppard v. Shoolbred, 341. 
 
 — V. Wakeman, 8. 
 Sllerborn v. Wells, 696. 
 Sheridan's Case, 817, 820. 
 Sheridan v. New Quay Co., 326, 508. 
 Sherwin v. Swiijdall, 1018. 
 
 Shiels V. Gt. North. Rail. Co., 948. ' 
 
 Shilcockii. Passman, 405. 
 
 Ship V. Orosskill, 407, 852. 
 
 Shipley ^.Todhunter, 822. 
 
 Shipman's Case, 1086. 
 
 Shirley v. Wright, 675. 
 
 Sliort V. Kalloway, 995. 
 
 Shower v. Pilek, 336. 
 
 Shrewsbury's (Earl of) Case, 1063. 
 
 Shrewsbury v. Blount, '867. 
 
 Shrewsbury (Countess of) v, Crompton, 
 
 247. 
 Shury v. Piggot, 59. 
 Shuttleworth v. Cocker, 1012, 1018. 
 
 — , ■ V. Hernaman, 351. 
 
 — V. Le Fleming, 118. 
 Sicliel V. Lambert, 902. 
 Sichell's Case, 1085. 
 
 Sidley's Case, 219. 
 
 Simmond's v. Gt. East, Rail. Co., 446. 
 
 — V. South East. Rail. Co., 513. 
 Simmons v. Edwards, 353, 358. > 
 
 — V. Lillystone, 291, 323, 956. 
 
 — V. Millingen, 579, 581, 584. 
 Simons v. Gt. West. Rail. Co,, 483, 484, 
 
 510. 
 
 — V. Patchett, 871. 
 Simpson v. Blues, 95,3. 
 
 — V. Bendy, 283. 
 
 — -ii. Hartopp, 527. 
 
 — V. Holliday, 51, 1034. 
 
 — V. Lethwaite, 297. 
 
 — V. Bobinson, 824. 
 
 — V. Sadd, 964. 
 
 — u. Savage, 203. 
 
 — V. Wells, 609. 
 Sinden v. Bankes, 39. 
 
 Siner v. Gt. West. Bail. Co., 383. 
 Singleton v. East. Co. Rail. Co., 401. 
 
 — V. Williamson, 548, 549. 
 Six Carpenters' Case, 264, 537. 
 Skelton V. Lond. and N. W. Rail. Co., 
 
 385. 
 
 — V. Springett, 898. 
 Skinner, Ex parte, 895. 
 
 — V. Ciapman, 335. 
 
 — V. Lond. Br., &c.. Rail. Co., 383. 
 
 — V. Shoppee, 1010. 
 Skipp V. East. Co. Rail. Co., 397. 
 Skipfon Indus. Co-operative Soc. v. Prince, 
 
 949, 1042. - 
 
 Skipwith v. , 502. 
 
 Skull V. Glennister, 308. 
 Skuse V. Davis, 600. 
 Slackford v. Austen, 660. 
 Sladden?;. Serjeant, 978. 
 Slade's Case, 966. 
 Slater v. Baker, 403. 
 
 — V. Binder, 348. 
 
 — V. Sunderland (Mayor of), 4 4 6. 
 
 — V. Swann, 319. 
 Slatterie v. Pooley, 565. 
 Sleat V. Fagg, 613. 
 
Ixxii 
 
 INHEX OF CASES. 
 
 Sleath V. Wilaon, 887. 
 Sleddon v. Cruikshank, 243. 
 Slim V. Gt. North. Eail. Co., 509. 
 Slocombe v. Lyall, 292. 
 Small V. Moates, 438. 
 Smallcombe's Caee, 841. 
 SmaUman v. Pollard, 657, 672, 677. 
 Smart v. Hutton, 646. 
 
 — V. Morton, 62, 94. 
 Smeed v. Foord, 991. 
 Smith's Case, 840. 
 
 Smith, Sx parte, 704,718, 719. 
 
 — In re, 1060. 
 
 — V. Ashforth, 538, 563. 
 
 — V. Birm. Gas Co., 930. 
 
 — V. Bonsall, 106. 
 
 — V. Brown, 392, 397, 410. 
 
 — V. Browiilow (Earl of), 160. 
 
 — v. Carey, 821. 
 
 — V. Dearlove, 501, 503. 
 
 — V. Edge, 1017. 
 
 — V. Feverell, 145. 
 
 — ». Goodwin, 539. 
 
 — V. Gt. East. Eail. Co., 192. 
 
 — V. Hamor, 1015. 
 
 — V. Hopper, 589, 590, 766. 
 
 — I/. Hudson, 358. 
 
 — V. Kenriek, 68. 
 
 — V. Knowelden, 986. 
 
 — V. Lawrence, 388. 
 
 — V. Lloyd, 272. 
 
 — V. Lond. and Br. Eail. Co., 478. 
 
 — V. Lond. and N. W. Eail. C8., 
 
 919. 
 
 — V. Lond. and S. W, Eail., 251. 
 
 — V. Lond. Dock Co., 186. 
 
 — V. Mayor of London, 1042. 
 
 — D. Maplehack, 518. 
 
 — V. Milles, 370. ■ 
 
 — V. Moflkt, 926. 
 
 — V. Powdich, 17. 
 
 — >v. Pritchard, 646,' 664. 
 
 — V. Eeese River Mining Co., 841. 
 , — V. Render, 244. 
 
 — V. Eichardson, 816. 
 
 — V. Eoyston, 305. 
 
 — V. Eussell, 531. 
 
 — V. Shaw, 764. 
 
 — V. Shirley, 295. 
 
 — V. Smith, 762, 891, 937 
 
 — V. Spopner, 809. 
 
 — V. Stokes, 171. 
 
 — v. Sydney, 596. 
 
 — V. Taylor, 825. 
 
 — V. Tett, 31 4. 
 
 — V. Thackerah, 768, 971. 
 
 — V. Thomas, 815. 
 
 — V. Topping, 351. 
 
 — V. Wiltshire, 729, 764. 
 
 — V. Wood, 818. 
 
 — V. Wright, 537, 540. 
 
 — V. Young, 325. 
 Smout V. Ilbery, 837, 853. 
 Smyth V. Carter, 232, 260. 
 Smythe v. Smythe, 236. 
 Snag V. Gray, 800. 
 Snead v. Watkins, 502. 
 Snelgrove v. Hart, 929. 
 
 — V. Stevens, 979. 
 SneU V. Finch, 524. 
 Snook V. Davidson, 449. 
 
 Snow V. Leatham, 329. 
 
 — 1-. Peacock, 329. 
 Snowball v. Goodricke, 677. 
 Soady v. Turnbull, 941. 
 Soames v. Edge, 1029. 
 Soane v. Knight, 795. 
 Solomon v. Lawson, 820, 821, 831. 
 
 — . V. Vintners' Co., 60, 93, 125. 
 Solomons v. Dawes, 326, 453. 
 Soltau V. De Held, 167, 201, 217. 
 Some V. Barwish, 923, 928. 
 Somers, In re, 752. 
 Somerville r. Hawkins, 779, 805. 
 Southampton, &c., Bridge Co. v. Local 
 
 Board, ' Southampton, 742, 743, 768, 
 
 1083. 
 South Australian Co. v. Eandell, 426. 
 Southcote's Case, 661. 
 Southcote V. Stanley, 189, 207. 
 Southee v. Denny, 800, 986. 
 Southerne v. Howe, 858. 
 Southernwood v. Eamsden, 912. 
 South East. Eail. Co. v. Eichardson, 
 
 1023. 
 South Essex Reclamation Co., Se, 446. 
 South Yorlbhire Eail. Co., In re, 1070. 
 SoweU V. Champion, 566, 671, 679, 1000. 
 Sowerby v. Coleman, 102. 
 
 — 1,. Prior,. 239. 
 Spackman v. MiUer, 351. 
 Spark V. Heslop, 995, 996. 
 Sparry's Case, 964. 
 
 Speaker of Victoria Assembly v. Glass, 
 
 640. 
 Spears v. Hartly, 438, 443. 
 Speck V. PhUlips, 608, 610, 998. 
 Spedding v. Nevell, 872, 993. 
 Speight V. Oliviera, 910. 
 Spencer v. Lond. & Biim. Eail. Co., 
 
 217. 
 Spering v. Spering, 881. 
 Spill V. Maule, 830. 
 Spilsbury v. Micklethwaitc, 607, 673. 
 Spokes V. Banbury Board of Health, 216. 
 Spooner v: Brewster, 7. 
 Spring, The, 393. 
 Springhead Spinning Co. v. Eiley, 11, 
 
 777. 
 Squire, Expa/rte, 347. 
 Stace V. Griffith, 779, 830. 
 Stacey v. Stacey, 893. 
 Stafford (Marquis of) v. Coyney, 224, 
 
 309. 
 Staffordshire, &e.. Canal Co. v. Birm, 
 
 Canal Navigations, 123. 
 Staight V. Burn, 137. 
 
 — V. Gee, 592, 597. 
 Stainback v. Fernley, 840.'- 
 Stainton v. Metrop. Board, &e., 770. 
 
 — V. Woolrych, 746. 
 Stallard v. Gt. West. Eail. Co., 434. 
 Stammers v. Yearsley, 601. 
 Stanford v. Eobinson,.337. 
 Stanhope v. Thorsby, 712. 
 Stannard v. TJlIithorne, 404. 
 Stannerd v. Lee, 47, 1032. 
 Stansfeld v. Cubitt, 349. 
 
 — V. Mayor of Portsmouth, 246. 
 Stante v. Pricket, 605. 
 Staple V. Heydon, 87. ' 
 Staples V. Accld, Death Ins. Co., 1051. 
 
INDEX OF CASES. 
 
 Ixxiii 
 
 Stapley v. Lond., Br,, and S. Coast Bail. 
 
 Co., 385. 
 Starling v. Turner, 27. 
 Staveley v. AUcock, 524. 
 Stead V. William^ 49. 
 Steadman v. Hookley, 447. 
 Stebbingi'. JMet. Bd. ofWorks, 279, 756. 
 Stedman ii. Bates, 559. 
 
 — V. Smith, 286. 
 Steel 11. Priekett,^221, 284. 
 
 — V. South-East. Bail. Co., 415. 
 Steele v. Midland Bail. Co., 762. 
 
 — 0. North. Metrop. Rail. Co., 773. 
 Stephens v. Elwall, 365, 936. 
 
 — V. Myers, 570. 
 Stephenson, lie, 881. 
 
 — V. Hart, 485, 605. 
 Stevens V. Adamson, 858. 
 
 — V. Benning, 1032. 
 
 — V. Chapman, 1015, 1017. 
 
 — V. Evans, 39. 
 
 — V. Jeacocke, 39, 40, 335. 
 
 — V. Mid. Bail. Co., 614, 627, 932, 
 Stevenson v. Blakelocke, 446. 
 
 — V. Newnham, 345, 539. 
 Steward r. Gromett, 613. 
 
 — V. Young, 809. 
 Stewart's Case, 841. 
 Stewart, £x parte, 355, 359. 
 
 — V. Austin, 407, 852. 
 
 — V. Gt. West. Baa., 963. 
 
 — V. Lond. and N. W. Bail. Co., 
 
 472, 473, 481, 488. 
 
 — V. Smith, 628. 
 
 Stiles V. Cardiff Steam Navigation Co., 
 191. 
 
 — V. Nokea, 792. 
 Stimson v. Farnham, 663. 
 Stinson v. Browning, 171. 
 Stoekdale v. Hansard, 793. 
 Stoekley v. Homidge, 627. 
 
 Stockport Dis. "Waterworks Co. v. Man- 
 chester (Mayor of), 1030. 
 
 — V. Potter, 67, 
 
 164, 167. 
 Stockport, &o,. Bail. Co., He, 748. 
 Stodhard v. Johnson, 1009. 
 Stoessiger v. South Bast. Bail. Co., 478. 
 Stokoe V. Singers, 136. 
 Stonard v. Dunkin, 342. 
 Stone V. Cartwrrght, 204, 412. 
 
 — V. Dean, 1051. 
 
 — ii. Jackson, 171, 190. 
 . — V. Marsh, 32. 
 
 Stoneham v. Lond. & Bright. Bail., 105. 
 Stonehouse v. Elliott, 595. 
 Storer v. Hunter, 246, 355, 356. 
 Storey v. Ashton, 387. 
 Storr V. Crowley, 486. 
 Story, Ex parte, 1040. 
 
 — V. Eichardson, 929. 
 Stott V. Stott, 74. 
 
 Stourbridge Canal Co. v. Dudley, 91. 
 Straohy v. Erancis, 239. 
 Strader v. Graham, 1008. 
 Strafford's Case, 1004. 
 Stretton v. Gt. West. Bail., 773. 
 Strick V. Swansea Canal Co., 515. 
 Strickland v. Ward, 708. 
 Strother v. Barr, 977. 
 Stroud V. Watts, 1011. 
 
 Stuart V. Crawley, 471. 
 
 — V, Lovell, 795. 
 
 — V. Whittaker, 678. 
 
 Stubley v. Lond. & N. W, Bail. Co., 385. 
 
 Stubs V. Stubs, 336, 944. 
 
 Studdy V. Studdy, 886. 
 
 Stukeley v. Butler, 98. 
 
 Sturgis V. Smith, 945. 
 
 Sturt V. Blagg, 781, 830. 
 
 Submarine Telegraph Co. v. Dickson, 176. 
 
 Suffield V. Brown, 84, 85, 141. 
 
 Suggate V. Suggate, 893. 
 
 Sumner v. Bromilow, 243, 245, 246. 
 
 Sunbolfv. AJford, 503. 
 
 Surgeons' Company's Case, 1079. 
 
 Surrey Canal Co, ■;;. HaJl, 221. 
 
 Sury V. Bigot, 142. 
 
 Suteliffe ». Booth, 123. 
 
 ■ — V. Surveyors of Sowerby, 197. 
 Suter V. Burrell, 676. 
 Sutherland v. Murray, 29. 
 Sutton V. Buck, 362. 
 
 — V. Clarke, 737, 739, 933, 912. 
 
 — V. Gt. West. Bail. Co., 469. 
 
 — V. Johnstone, 34, 621. 
 
 — V. Ld. Montfort, 157. 
 
 — V. Moody, 334. 
 
 — V. South East. Bail. Co., 1036. 
 
 — V. Wilders, 855. 
 Swan, The, 953. 
 
 — Expa/rte, 985, 1085. 
 
 — V. Brit. Aust.Co., 1082. 
 
 — V. Dakins, 718. 
 
 — V. North Brit. Austr. Co., 18, 
 
 21, 984, 1066. 
 Swann v. Falmouth (Earl), 536. 
 
 — V. Phillips, 838, 864. 
 Swannell v. Ellis, 404. 
 Swansborough i;. . Coventry, 95. 
 Swayne's Case, 108. 
 
 Sweet V. Pym, 449. 
 
 Sweetman v. Guest, 694, 695, 712. 
 
 Swinfeu v. Ld. Chelmsford, 406, 976. 
 
 Swire 'v. Leach, 530. 
 
 Swithin v. Vincent, 811. 
 
 Sybray % White, 169, 211. 
 
 Syeds v. Hay, 321, 378, 486. 
 
 Sykes v. Sykes, 864, 891, 1026. 
 
 Sylph, The, 397. 
 
 Syme v. Harvey, 243. 
 
 Symonds v. Dimsdale, 1051. 
 
 Syms's Case, 107. 
 
 Syms V. Chaplin, 510. 
 
 Taafe v. Downes, 639. 
 Tabart v. Tipper, 794. 
 Taffi Vale Bail. Co. v. Giles, 506. 
 Tailors of Ipswich's Case, 35. 
 Tait's Case, 841. 
 Tait V. Harris, 943. 
 Talbot (Earl) v. Scott, 261, 316. 
 Talley v. Gt. West. Bwy., 489. 
 Tancred v. Allgood, 363, 369, 651, 657, 
 671. 
 — V. Leylaud, 538, 543, 563. 
 Tanistry's Case, 101. 
 Tanner v. European Bank, 456. 
 Taplin v. Atfcy, 676. 
 Tapling v. Jones, 126, 136. 
 Tarleton v. M'Gawley, 11. 
 Tarpley v. Blabey, 817, 829. 
 
 V 
 
Ixxiv 
 
 INDEX OF CASES. 
 
 Tarrant ®, Webb, 399. 
 Tate V. Glecd, 532. 
 Tattau V. Gt. "West. Rail. Co., 1015. 
 Tatton V. Wade, 838, 864. 
 Taunton v. Costar, 573. 
 Tayerner v. Little, 418. 
 Tayler v. Fish?r, 306. 
 Taylerson v. Peters, 523. 
 Taylor 1). Aslitou, 835, 840, 866. 
 
 — V. Blacklow, 404. 
 
 — V. Buller, 860. 
 ~ V. Cass, 1014. 
 ^- V. Chester, 438. 
 
 — V. Chichester & Midhurst Kail. Co, 
 
 772. 
 
 — «. Cole, 293, 295, 573, 601, 974. 
 
 — V. Gt. Ind. I'eriins., 21. 
 
 — ■!>. Gt. North. Eail. Co., 470, 1021. 
 
 — V. Green, 862. 
 
 — V. Hawkins, 779. 
 
 — V. Humphreys, 491. 
 
 — V. Lanyon, 657. 
 
 — •,.. Nesfield, 592, 728, 730. 
 
 — V. Pillow, 44. 
 
 — V. Plumer, 356. 
 
 — V. Eobiuson,, 444. 
 
 — V. Smitli, 605. 
 
 — V. Stendall, 179. 
 
 — V. Whitehead, 88, 308. 
 
 — V. Willans, 633. 
 Tealby v. Gasooigne, 676. 
 Tear v. Freebody, 321. 
 Tebb V. Hodge, 246. 
 
 Tebbutt V. Brist. & Ex. Rail., 25. 
 
 — V. Selby, 148. 
 Telford v. Met. Board, 773. 
 Tenant v. Golding, 162, 206. 
 
 — -ii. Goldwin, 93, 266. 
 Tenham v. Herbert, 159. 
 Tcnnaut's Case, 49. 
 Tennant v. Field, 541. 
 Terry v. Huntington, 716. 
 
 — V. Hutchinson, 909. 
 Thackthwaite v. Cock, 353. 
 Thames Conserrators v. Hall, 390. 
 
 — V. Victoria Station 
 
 Co., 752. 
 Thames Iron Works Co. c Patent Der- 
 rick Co., 440. 
 Tharpe v. Stallwood, 926. 
 Thaxbie v. Smith, 990. 
 Tlieobald v. Criclimore, 589. 
 
 -^ V. Eail. Pass. Assur. Co., 992. 
 Thistlewood's Case, 817. 
 Thorn V. Bigland, 866. 
 Thomas, Esc parte, 359. 
 
 — V. Chirton, 808. 
 
 — V. Daw, 772. 
 
 — V. Harries, 536, 540, 549. 
 
 — 1). Harris, 997. 
 
 — D. Jones, 259. 
 
 — V. Morgan, 213, 865. 
 
 — V. Oakley, 259, 316. 
 
 — 1). Philips, 339. 
 
 — V. Powell, 610. 
 
 — 1). Bhymney Rail., 487. 
 
 — i>. Eoberts, 895. 
 
 — V. Kussell, 633. 
 
 — V. Saunders, 597. 
 
 — V. Sorrell, 83, 
 
 — V. Thomas, 140, 891, 
 
 Thomas v. Welch, 51. 
 
 — n. Williams, 76S. 
 Thomlinson v. Brown, 136. 
 Thompson, In re, S96. 
 
 — V. Bernard, 799. 
 
 — V. Dallas, 1014. 
 
 — V. Gibson, 166, 202, 1013. 
 
 — V. Giles, 366. 
 
 — V. Hill, 179. 
 
 — V. Ingbam, 717, 950, 1044. 
 
 — V. Lacy, 495. 
 
 — I'. Mashiter, 530. 
 
 — V. North-East. Kail. Co., 186. 
 
 — V. Nye, 828. 
 
 — V. Pettit, 256. 
 
 — V. Boss, 908, 909. 
 
 — V. Stanhope, 1031. 
 
 — V. Thompson, 882, 884, 891. 
 
 — V. Trevanion, 983. 
 
 — V. Wood, 557. 
 Thomson v. Simpson, 870. 
 Thorbum v. Barnes, 637. 
 Thorley v. Kerry (Lord), 775. 
 Thorn i). Bigland, 854. 
 Thome v. Tilbury, 368, 461. 
 Thornewell v. Wigner, 948. 
 Thornton v. Adams, 535. 
 
 — V, Pickering, 827. 
 Thorogood v. Bryan, 389; 416. 
 
 — V. Robinson, 323. 
 Thorp V. Facey, 273, 278, 
 Thorpe v. Adams, 1055. 
 Tliresher v. East Lond. Water Co., 245. 
 Throgmorton v. Allen, 576. 
 Thurgood v. Richardson, 672. 
 Tickle V. Brown, 130, 298, 300. 
 Tidman v. Ainslie, 805, 811, 817. 
 Tighe 1). Cooper, 816. 
 Tilk V. Parsons, 825. 
 Tilson V. Warwick Gas Light Co., 39. 
 Timothv v. Simpson, 572, 574, 581. 
 Tindall v. Bell, 422, 994. 
 Tinkler v. Wandsworth District Board, 
 
 770, 772, 1030. 
 Tinsley v. Lacey, 42, 43. 
 Tipping V. St. Helen's Smelting Co., 165, 
 
 217. 
 Titchmarsh v. Chapman, 1040. 
 Tobacco Pipe, &c., Co. v. Loder, 36. 
 Tobin V. The Queen, 365. 
 Todd V. Plight, 178. 
 
 — V. Hawkins, 78 4i 
 
 — v. Todd, 886. 
 Todhunter, Expaiie, 348. 
 Toft V. Eayner, 1042. 
 
 ToUemacbe v. Lond. & S. W. Eail. Co., 
 
 585. 
 ToUit V. Sherstone, 917. 
 Tomlinson, In re, 898. 
 Tonson v. Walter, 1032. 
 Toogood V. Spyring, 779, 788. 
 Tooke V. Hollingworth, 856, 358. 
 Toomey v. Lond. & Br. Bail. Co., 183. 
 Topham v. Dent, 928. 
 Torrence v. Gibbins, 911, 912. 
 Torriano v. Young, 233. 
 Tottenham v. Byrne, 283. , 
 Towne v. Lewis, 324. 
 Townley v. Gibson, 83. 
 
 — i>. Jones, 405. 
 Townsend.v. Wathen, 168. 
 
INDEX OF CASES. 
 
 Ixxv 
 
 Tozar v. Child, 27, 28, 636. 
 
 — 0. Mashford, 798. 
 
 Tracy v. Open Stock Exchange, 642. 
 
 — V. Veal, 32. 
 Trahenie v. Gardner, 1025. 
 Treadwin v. Gt. East. Rail. Co., 474, 478. 
 Trelawney v. Coleman, 904. 
 
 Trent v. Hunt, 524, 543, 559. 
 
 Trent Nav. Co. v. Wai-d, 472. 
 
 Tripp V. Thomas, 827. 
 
 Trismall v. Lovegrore, 350. 
 
 Trower v. Chadwiek, 179. 
 
 Truscott V. Merchant Taylor's Co., 116. 
 
 Trust. Brit. Museum v. Mnnis, 221. 
 
 Tubb V. Good, 196. 
 
 Tuberyil v. Stamp, 9, 249, 250. 
 
 Tuberville v. Savage, 570. 
 
 Tucker v. Newman, 203, 213. 
 
 — 'V. Tiirpin, 875. 
 
 — V. Wright, 366. 
 
 Tuff V. Warman, 22, 394, 401, 421. 
 
 Tuflou V. Harding, 655. 
 
 Tulk V. Metrop. Board of Works, 102. 
 
 Tiillay V. Keed, 573. 
 
 TuUidge V. Wade, 607, 913, 997. 
 
 Tullit V. Tullit, 333. " 
 
 Tuuney v. Midland Rail. Co., 399. 
 
 Tunnicliffe v. Moss, 825. 
 
 — II. Tedd, 600. 
 Tunno v. Monis, 641. 
 Turbervillo v. Stampe, 419. 
 Turner v. Ambler, 615, 633. 
 
 — T. Baynes, 280, 522. 
 
 — V. Cameron, 527. 
 
 — V. Deane, 447. 
 
 — v. Doe, 272. 
 
 — V. Telgate, 662, 674. 
 
 — V. Ford, 363, 364, 376. 
 
 — V. Horton, 1010. 
 
 — V. Postmaster-General, 696. 
 
 — V. Eingwood Highway Board,225, 
 
 309. 
 
 — V. Spooner, 128, 136, 158. 
 
 — V. Winter, 51. 
 
 — V. Wright, 237. 
 Tumley v. Macgregor, 866. 
 Turquaud v. Marshall, 408. 
 Turrill v. Crawley, 502. 
 Tuson V. Evans, 791. 
 Tutton V. Parke, 526. 
 Tutty V. Alewin, 800. 
 Two Ellens, The, 439. 
 Twort V. Twort, 260. 
 Twyman v. Knowles, 312. 
 Twynam v. Porter, 447. 
 Tyler v. Bennett, 1012. 
 
 — •». Leeds (Duke of ), 679. 
 
 Tyne Improvement Commissioners v. 
 
 Gen. Steam Nav. Co., 390. 
 Tyringham's Case, 139. 
 Tyson v. Smith, 101, 102. 
 
 — ■». London (Mayor of), 751. 
 
 Udell v. Atlierton, 854, 934. 
 Uhla, The, 397. 
 Umphelby v. M'Lean, 766. 
 Underhill v. Ellicombe, 39. 
 Underwood v. Hewson, 381. 
 
 — V. Parks, 828. 
 
 Union Bank of Manchester, Ex pa/rte, 
 350, 352, 
 
 Union Cement and Brick Co., Re, 446. 
 United Service Co., /» re, 21', 407, 422. 
 Unity Joint-Stock Bank M in. Association 
 
 ■0. King, 294. 
 Upmann v. Elkan, 52, 876. 
 
 Valentine v. Cleugh, 1,021. 
 
 — V. Penny, 106. 
 Vallanoe, Ex parte, 352; 
 
 — V. Savage, 70, 919. 
 Valpy V. Manley, 680. 
 
 — r. Sanders, 346. 
 Vanderburg v. Truax, 6 . 
 Vanderzee r. Willis, 445. 
 Vane v. Lord Barnard, 237. 
 Van Sandau v. Turner, 640. 
 
 Van Toll v. South-East. Bail. Co., 435, 
 
 485. 
 Vaughan, Ex parte, 716. 
 
 — V. Cork and Yough. Rail. Co., 
 
 401. 
 
 — ■». Lewis, 1079. 
 
 — V. Menlove, 250, 251, 252, 255. 
 
 — V. Taff Vale Rail. Co., 251, 
 
 255. 
 Vaughton v. Bradshaw, 600. 
 Velasquez, The, 391. 
 Veley v. Burder, 1038, 1041. 
 Venafra v. Johnson, 613, 693. 
 Veness, Ex parte, 348. 
 Venezuela Rail. Co. v. Kisch, 840. 
 Vere v. Cawdor (Lord), 373. 
 Vernon v. Keys, 850. 
 Verrall v. Robinson, 324, 368. 
 Verry v. Watkins, 913. 
 Vicars v. Wilcocks, 5, 803, 804, 825. 
 Victor, The, 391. 
 Villiers v. Mousley, 775, 776. 
 Vine u Saunders, 937. 
 Viner V. Cadell, 351. 
 
 — V. Vaughan, 258. 
 Violett V. Sympson, 726. 
 Virtue v. Bird, 20. 
 Vivian v. Champion, 923. 
 Vivid, The, 394. 
 Vizard, He, 344. 
 
 Vose V. Lane, and York. Rail. Co., 133, 
 
 187, 398. 
 Vowles V. Miller, 287. 
 Voyce V. Voyce, 287. 
 
 Waddell v. Waddell, 883. 
 
 Wade V. Tatton, 838. 
 
 Wadhurst v. Damme, 319, 373. 
 
 Wadsworth v. Bentley, 965. 
 
 Wain V. Bailey, 337. 
 
 Wait V. Walt, 905. 
 
 Waite V. Garston Local Board, 37. 
 
 — V. North-East. Rail. Co., 401. 
 Wakefield v. Bucclcugh (Duke of), 62, 
 
 104, 159. 
 Wakeman v. Lipdsey, 543. 
 
 — V. Robinson, 381, 418. 
 Wakley v. Cooke, 778. 
 
 — V. Froggatt, 294, 973. 
 
 — v. Healey, 821. 
 Walker v. Birch, 443. 
 
 — V. Brewster, 167. 
 
 — 1). Brit. Guarantee Ass., 426, 431. 
 
 — V. Evans, 201. 
 
 — V. Gann, 1048, 
 
Ixxvi 
 
 INDEX OF OASES. 
 
 Walker v. Goe, 186, 740. 
 
 — V. Jackson, 513, 
 
 — v. Milner, 850. 
 
 — V. Olding, 992. 
 
 — V. S. E. Kail., 597, 627, 931. 
 
 — V. Ware, &c., Kail. Co., 77. 
 
 — V. Wllloughby, 658. 
 Wall V. Hinds, 244. 
 
 — V. London and S. W. Railway Co., 
 
 1024. 
 
 — V. McNamara, 30. 
 Wallace, He, 640. 
 
 — V. Carroll, 806. 
 
 — V. Jarman, 842, 843. 
 
 — V. Woodgate, 449, 492. 
 Waller v. Drakeford, 372. 
 
 — V. Holmes, 446. 
 
 — v. South-East. Rail. Co., 400. 
 Walley v. M'Connell, 671. 
 Wallington v. Wood, 990. 
 
 WaJlis V. Harrison, 100, 307, 921. 
 
 — V. L. and S. W. Kail., 491. 
 Walmsley, Ex parte, 1060. 
 
 — V. Milne, 241, 242. 
 Walsham v. Stainton,-613. 
 Walshe v. Provan, 454. 
 Walter 1). Selfe, 162, 164, 215. 
 Walters v. Mace, 820. 
 
 — V. Pfiel, 179. 
 
 — V. Webb, 274. 
 Walton i>. Brown, 1008. 
 
 V. Lavater, 53. 
 
 — V. Walton, 886. 
 Wandsworth Board v. Lond. and S. W. 
 
 Rail. Co., 76, 215, 218, 316, 1030. 
 Wanless v. N. E. Rail., 385. 
 Wansbrongh v. Maton, 243. 
 Wanstead Local Board, &c., r. Hill, 36, 
 
 48, 164. 
 Warburton v. Gt. West. Rail. Co., 400. 
 
 — V. Parke, 119, 121, 140. 
 Warde, Fx parte, 1086. 
 
 — V. Lee, 742, 744. 
 
 — V. Lowndes, 1069, 1082, 1084. 
 
 — V. Robins, 129, 131. 
 
 — i;. Shew, 523. 
 
 — V. South-East. Rail. Co., 1082. 
 
 — V. Ward, 131, 134, 137, 886. 
 
 — V. Weeks, 5, 804, 811. 
 Warde ij. Eyre, 333. 
 
 — V. Warde, 895, 896. 
 Warden v. Monrillyto, 486. 
 Warden v. Bailey, 934. 
 
 Wardle v. Brocklehurst, 85, 86, 141. 
 Ware, In re, 760. 
 
 — V. Regent's Canal Co., 1033. 
 Waring v. Waring, 882. 
 
 Warne v. Chadwell, 824. 
 Warner v. Riddtford, 575, 595, 606. 
 Warr v. JoUy, 787. 
 Warren v. Warren, 818. 
 
 — V. Webb, 291. 
 Warrick v. Queen's Coll., 102, 129, 169, 
 
 981. 
 Warwick v. Eoulkes, 604, 828. 
 Wason V. Walter, 793, 794. 
 Watbroke v. Griffith, 602. 
 Waterer v. Freeman, 2, 32, 622. 
 Waterhouse v. Jamieson, 841. 
 
 — 4). Keen, 765. 
 Waterlow V. Bacon, 151, 158. 
 
 Waterman v. Soper, 285, 930. 
 Waters v. Monarch, 376. 
 
 — V. Towers, 378. 
 Watkin V. Hall, 812, 813. 
 Watkins, Mx parte, 355, 1048. 
 
 -- V. Gt. North. Rail. Co., 295, 
 753, 769. 
 
 — V. Lee, 628. 
 
 — V. Rfiddin, 172, 219. 
 Watling V. Oastler, 188. 
 
 Watson V. Ambergate Rail. Co., 487. 
 
 — V. Bodell, 665. 
 
 — v. Charlemont (Earl), 839. 
 
 — V. Christie, 608, 828, 998. 
 
 — V. Denton, 869. 
 
 — V. Maclean, 337. 
 
 — V. Peache, 356. 
 
 — V. Poulson, 835. 
 
 — V. Russell, 344. 
 
 — V. Waud, 520. 
 Watts, Sx parte, 354. 
 
 — V. Fraser, 829. 
 
 — V. Kelson, 85, 141. 
 
 — V. Lucas, 199. 
 Weall V. King, 943. 
 Weatherby v. Koss, 136, 158. 
 Weatherston v. Hawkins, 788. 
 Weaver v. Bush, 572. 
 
 — V. Ward, 2, 381. 
 Webb's Case, 219. 
 Webb, In re, 486. 
 
 — V. Bird, 119, 153. 
 
 — n. Cook, 827. 
 
 — , V. Fairmaner, 692. 
 
 — v.yox, 370, 443. 
 
 — V. Paternoster, 319. 
 
 — V. Portland Manufaet. Co., 8. 
 Webber v. Gt. Western Rail. Co., 487. 
 
 — v. Sparkes, 960. 
 Webster's Case, 841. 
 Websteri>. Watts, 573, 581. 
 
 — V. Webster, 892. 
 Wednesbury Bd. of Health «. Stephen- 
 son, 1021. 
 
 Weekly v. Wildman, 108. 
 Weeks v. Goode, 331, 441. 
 
 — V. Sparke, 981. 
 Weems v. Mathieson, 188, 398. 
 Welch V. Nash, 699, 700, 716. 
 Welcome v. 'CTpton, 109. 
 Weld V. Hornby, 218. 
 Weldoni;. Gould, 442. 
 
 Welfare v. Brighton Rail., 18, 169, 419. 
 Weller*. Toke, 727. 
 Wellesley v. Wellesley, 237, 895. 
 Welloek v. Constantine, 31. 
 Wells V. Gurney, 658. 
 
 — i;. Head, 313, 373, 375. 
 
 — V. Ody, 153. 
 
 — i>. Watling, 145. 
 Welsh V. Rose, 523. 
 Wenman v. Ash, 779, 782, 818. 
 Wentworth v. BuUen, 623. 
 West V. Baxendale, 603. 
 
 — V. Blakeway, 245. 
 
 — V. Francis; 46. 
 
 — v: L. & N. W. Rail. 469. 
 
 — ■». Nibbs, 646, 555. 
 
 — V. Skip, 361. 
 
 — i>. Smallwood, 599, 730. 
 
 — v. West, 905. 
 
Index of cases. 
 
 Ixxvii 
 
 West Riding EaiL Co. v. Wakefield Bd. 
 
 ofHealth, 184, 414. 
 Western Bank of Scotland v. Addie, 840, 
 
 855, 863. 
 Weston's Case, lOSo. 
 Weston V. Beeman, 620, 627, 633. 
 
 — V. Dobniet, 780. 
 
 — f. Sneyd, 725, 1049. 
 Westwood V. Bell, 449. 
 
 — V. Cowne, 544, 567. 
 Wetter v. Dank, 169. 
 
 Whaley v. Laing, 67, 72, 148, 1008. 
 Wharton v. Brook, 797. 
 
 — V. Naylor, 530, 677^ 
 Whatman v. Pearson, 26, 766. 
 Wheatley v. Patrick, 388. 
 Wheeler v. Brouscombe, 560. 
 
 — V. Whiting, 672, 581, 595. 
 Whistler ». Forster, 343. 
 White's Case, 499, 1066. 
 
 White V. Bailey, 273, 364. 
 
 — V. Bass, 95, 126, 127. 
 
 — V. Binstead, 657, 679. 
 
 — V. Cohen, 77. 
 
 — V. Crisp, 176, 226. 
 
 — V. Gainer, 441. , 
 
 — ■». Garden, 341, 442. 
 
 — V. Gt. West. Kail. Co., 508, 510. 
 ~ V. Humphrey, 432, 485.- 
 
 — V. Hunt, 344. 
 
 — V. Morris, 674, 677. 
 
 — V. Phillips, 176, 186. 
 
 — I'. K. Ex. Ass. Co., 446. 
 
 — i: Spettigue, 32, 331, 339. 
 
 — V. Steele, 741, 1022, 1038, 1041, 
 
 1046. 
 Whiteoomb v. Jacob, 358. 
 Wliitehead v. Bennett, 245. 
 
 — V. Greetham, 405. 
 
 — V. Proctor, 643. 
 
 — V. Scott, 979. 
 
 — V. Taylor, 559. 
 Whitehouse's Case, 841. 
 Whitehouse v. Birm. Can. Co., 736. 
 
 — V. Fell, 971. 
 
 — V. Fellowes, 202, 739, 750, 
 
 763. 
 
 — V. Wolverhampton Kail. 91. 
 Whitelegg v. Kichards, 642. 
 Whiteley v. Adams, 779. 
 Whitelock v. Hutchinson, 106. 
 Whiteman v. King, 144. 
 
 Whitfield V. Bewit, 333. 
 
 — V. Brand, 357. 
 
 — V. S. E. Kail. Co., 811, 932. 
 
 — V. Le Despenser (Lord), 16. 
 Whitley v. Koberts, 525. 
 Whitmore v. Black, 376. 
 
 — V. Greene, 671. 
 
 — V. Humphries, 271. 
 
 — V. Whitmore, 882, 905. 
 Whitstable (Free Fishers of) v. Foreman, 
 
 281. 
 — V. Gann, 280. 
 
 Whittaker v. Jackson, 285, 293. 
 Whittall V. Campbell, 1026. 
 Whitten v. Fuller, 366. 
 Whittington v. Boxall, 292. 
 Whitworth v. Hall, 624. 
 
 — 0. Maden, 567. 
 Wickham v. Hawker, 294. 
 
 Wicks V. Pentham, 633. 
 
 — V. Hunt, 1033. 
 Wieler v. Schilizzi, 850. 
 Wiffin V. Kiucavd, 571. 
 Wigens v. Cook, 1016, 1017. 
 Wiggett V. Fox, 399, 400. 
 Wiggins, Ex parte, 355. 
 Wigmore r. Jay, 188. 
 
 Wilby V. Elston, 4, 797, 798, 815, 958. 
 
 — -0. West Corn. Rail. Co., 487. 
 Wilcox V. Marshall, 952. 
 
 Wild V. Holt, 312. 
 Wilde V. Gibson, 836. 
 
 — V. Minsterley, 61. 
 
 — V. Sheridan, 1044. 
 
 — V. Waters, 234. 
 Wilder v. Speer, 550. 
 Wildes V. Russell, 689, 1063. 
 Wiles V. Woodward, 372. 
 Wilford V. Berkeley, 903. 
 Wilkes V. Broadbent, 81. 
 
 — V. Hung. Mark. Co., 33, 737. 
 Wilk's Case, 799. 
 
 Wilkin V. Keed, 987, 988. 
 Wilkins v. Bromhead, 356. 
 WEkinson v. Fairrie, 169. 
 
 — V. Haygarth, 289, 306, 930, 
 
 — v. Kirby, 315, 960. 
 
 — V. Proud, 62, 113. 
 
 — V. Verity, 280, 972. 
 
 — 1). Whalley, 368. 
 Willans v. Taylor, 614. 
 Williams v. Adjims, 699. 
 
 — V. AUsup, 439. 
 
 — V. Archer, 464. 
 
 — 1). Baily, 882. 
 
 — V. Banks, 616. 
 
 — V. Blackwall, 194. 
 
 — V. Clough, 187, 188,- 417. 
 
 — V. Cranston, 506. 
 
 — V. Currie, 311, 989. 
 
 V. East India Co., '859. 
 
 — V. Everett, 341. 
 
 — V. Eyton, 138. 
 
 — V. Fitzmaurice, 402. 
 
 — V. G.^rdiner, 821. 
 
 — V. Gibbs, 404. 
 
 — 1). Glenister, 582. 
 
 — V. Golding, 179, 402. 
 
 — V. Grouoott, 168. 
 
 — </. Gt. West. Rail. Co., 489. 
 
 — V. Holmes, 530. 
 
 — V. James, 152. 
 
 — V. Jersey (Earl of), 216. 
 
 — V. Jones, 252, 413, 561, 571. 
 
 — V. Millington, 919. 
 
 — V. Movland, 66.- 
 
 — V. Morris, 307, 310. 
 
 — V. Mostyn, 660, 678. 
 
 — v. Pott, 271, 275. 
 
 — V. Richards, 386. 
 
 — V. Roberts, 534. 
 
 — V. Smith, 596, 625, 662, 672. 
 
 — V. StiYon, 522, 658. 
 
 — V. Stott, 821. 
 
 — ■». Wilcox, 154, 199, 961. 
 
 — V. Williams, 49, 882, 88S. 
 Williamson v. Allison, 842. 
 Willingale v. Maithind, 102, 107. 
 Willis V. Bernard, 904. 
 Willoughby v. Backhouse, 564. 
 
Ixxviii 
 
 INDEX OF CASES. 
 
 Willoughby v. Honidge, 494. 
 — V. Marshall, 538. 
 Wills V. Maocarmick, 636. 
 
 — r. "Wells, 377. 
 Wilson's (Carus) Case, 689. 
 Wilson, Exparte, 345, 350. 
 
 — V. Anderton, 327. 
 
 — v. Barker, 935. 
 
 — V. Brett, 431. 
 
 — V. Fuller, 862. 
 
 — V. Halifax (Mayor of), 740, 766. 
 
 — V. Lane, and York. Kail. Co., 513, 
 
 992. 
 
 — V. Merry, 399. 
 
 — V. Newberry, 69. 
 
 — V. Newport Dock Co., 422. 
 
 — V. Peto, 147, 204, 412. 
 
 — V. Kankin, 864. 
 
 — V. Robinson, 786. 
 
 — v. Stanley, 120, 132. 
 
 — V. Towend, 215. 
 
 — V. Tucker, 405. 
 
 — V. Tummon, 671, 672, 935. 
 
 — v. Willes, 81, 106. 
 Wilsons, In re, 652. 
 Wilton V. Uirdlestone, 323. 
 Wiltshear v. Cottrell, 243. 
 Wiltshire v. Sidford, 285. 
 
 Wiltshire Iron Co. v. Gt.West. Kwy., 438. 
 
 Windham v. Clere, 693. 
 
 Windover v. Smith, 45. 
 
 Wingate v. Waite, 639. 
 
 Winship v. Hudspeth, 120. 
 
 Winsmore v. Greenbank, 2, 9, 34, 202, 906, 
 
 915. 
 Winter v. Bartholomew, 655. 
 
 — V. Brockwell, 83, 134, 151. 
 
 — V. Henn, 903. 
 Winte'rbottom v. Derby (Lord), 120, 132, 
 
 201. 
 — V. Wright, 14, 398, 917. 
 Winterburn v. Brooks, 602. 
 Wintle V. Brist. and S. W. Eail. Co., 1030. 
 
 — V, Freeman, 663. 
 Wise V. Gt. West. Kail. Co., 401. 
 
 — ' V. Metcalfe, 281, 238, 940. 
 Witham,-^!;^^?'^, 359. 
 Witham Nay. Co. v. Padley, 699. 
 Wither v. Dean, &o., of Winchester, 260. 
 Withers v. Henley, 578. 
 
 — V. North Kent Kail. Co., 183. 
 
 — V. Parker, 659. 
 Witte 1!. Hague, 204. 
 Wobum Abbey, The, 391. 
 Wolf«. Summers, 492. 
 
 , Wolton V. GaTin, 585. 
 Wontnerii. Shairp, 839. 
 Wood K. Bel), 378. 
 
 — V. Boosey, 43, 44. 
 
 — V. Brown, 812. 
 
 — ii. Chart, 41. 
 
 — v. Clarke, 627, 530. 
 
 — 1). Gnnstone, 806. 
 
 — V. Henett, 243. 
 
 — V, Lane, 676. 
 
 — ii.Leadbitter, 82, 94, 151. 
 
 — V, Morewood, 312, 374. 
 
 — V. Nunn, 586. 
 ^ V. Kiley, 1013. 
 ^ v. Sutcliffe, 215., 
 
 ^ V. Veal, 120, 132, 223. 
 
 Wood V. Waud, 64, 75, 123. 
 
 — V. Wedgewood, 307. 
 
 — V. Ziraner, 49. 
 
 Woodgate v. KnatohbuU, 664, 670, 676. 
 
 — V. Naylor, 887. 
 Woodger v. Gt. West. Kail. Co., 513. 
 Woodhall V. Voight, 1025. 
 Woodhousev. Murray, 346. 
 Woodin V. Burford, 863. 
 Wooding V. Oxley, 681. 
 Woodley v. Coventry, 326. 
 Woods V. Finnis, 647, 660. 
 
 — V. Uussell, 354. 
 Woodward v. Gyles, 259. 
 
 — V. Lander, 779. 
 Woodyer v. Hadden, 222, 223. 
 Wookey v. Pole, 446. 
 Wooldridge, Ex parte, 949. 
 Woollen V. Wright, 671, 935. 
 WooUey v. Clark, 662. 
 
 — V. North London Kail. 963. 
 
 — r.'Scovell, 386. 
 Woolnoth V. Meadows, 808. 
 
 Wore. Co. Bank v. Dorch, and Milt, 
 
 Bank, 328. 
 Wordsworth v. Harley, 763. 
 Workman I). Gt. North. Eail. Co., 991. 
 Wormer v. Biggs, 464, 547. 
 Wormwell ii. Hailstone, 934. 
 Worrall Waterworks Co. v. Lloyd, 740. 
 Worsley v. Stuart, 258. 
 Worths. Gilling, 212, 987. 
 
 — ■». Terrington, 602, 604. 
 Worthingtonii. Gimson,-141. 
 
 — 1.. Hulton, 1069, 1071. 
 Wotherspoon v. Carrie, 876. 
 Wrayjj.Toke, 695, 707. 
 Vfrenv. Weild, 27, 808, 810,. 817. 
 Wright's Case, 841. 
 Wright V. Child, 647: 
 
 — v. Clements, 812. 
 
 — V. Court, -571, 577, 722. 
 
 — V. Crookes, 862, 868. 
 
 — V. Goodlake, 41. 
 
 — V. Hitchcock, 50, 63. 
 
 — V. Howard, 66. 
 
 — V. Lainson, 673. 
 
 — V. Leonard, 34, 857, 937. 
 
 — V, Pearson, 23. 
 
 — :;. Snell, 491. 
 
 — V. Tallis, 42. • 
 
 — V. WilUams, 122, 132. 
 
 — V. Woodgate, 790. 
 Wrightup 1). Chamberlain, 994. 
 
 — V. Greenacre, 664, 673. 
 Wyatt V. Gore, 815, 816, 828. 
 
 — V. Gt. West. Eail. Co., 184, 401. 
 
 — V. Harrison, 60. 
 
 — 1). White, 619, 620, 687. 
 Wyer v. Dorch., &o.. Bank, 328, 
 Wyld V. Pickford, 478, 479. 
 Wylde V. Radford, 445. 
 Wylie ». Birch, 663. 
 Wynne v. Tyrwhit, 982. 
 Wynstanley v. Lee, 77, 157. 
 Wyrley Canal Co. v. Bradley, 92. 
 
 Yaebobocgh v. Bank of England, 932. 
 Yard v. Ford, 13. 
 
 Yarmouth (Great), Mayor of, V, Groom, IS. 
 Yates v.Dnnster, 258, 
 
INDEX OF CASES. 
 
 Ixxix 
 
 Yates V. Jack, 128, 158. 
 
 — V. Palmer, 1040, 1048. 
 
 — ■</. Whyte, 253, 423, 967, 1001. 
 Yearsley r. Heane, 659. 
 
 Yeatman v. Yeatman, 885, 887. 
 YoUowly V. Goiver, 231. 
 Yeo V. Tatem, 969. 
 Yeoman v. EUisou, 520. 
 York V. Grindstone, 501. 
 York (Mayor of) v. Pilkington, 160. 
 York & Jf. Mid. Bail. Co. v. Milner, 1072. 
 — V. The Queen, 
 
 1055. 
 ' Yorke v. Grenaugh, 440, 502. 
 Young V. Cooper, 368. 
 
 — V. Davis, 17, 143, 740, 741. 
 
 — V. Edwards, 35, 37. 
 Young V. Fletcher, 346. 
 
 — V. Grallridge, 194. 
 , — r. Grote, 18. 
 
 — V. Hichens, 12, 336. 
 
 — V. Higgon, 692, 729. 
 
 — V. Hope, 360, 351. 
 
 — i;. Xambert, 450. 
 
 — V. Macrae, 796. 
 
 — V. Matthews, 340. 
 
 — V. Spencer, 232, 254. 
 Yrisarri v. Clement, 778. 
 
 Zetland (Earl of) v. Glover Incorp. of 
 
 Perth, 111. 
 Zinck V. Walker, 356. 
 Zouch V. Willingale, 518, 523, 
 Zunz V. S. E. Rail., 483, 487. 
 Zyohlinski v. Maltby, 1026. 
 
INDEX or STATUTES CITED. 
 
 Magna Charta 
 
 51 Hen. 3, st. 4 . 
 
 52 Hen. 3, c. 4 
 
 c. 21 . 
 c. 23 . 
 6 Edw. 1, 0. 1 
 c. 5 
 13 Edw. 1, Bt. 1 . 
 c. 11 
 0.14 
 c. 39 
 c. 50 
 . 4 Edw. 3, c. 7 
 25 Ed«'. 3, Bt. 4, 0. i 
 C.5 
 34 Edw. 3, 0. 1. . 
 36 Edw. 3, St. 1, c. 12 
 46 Edw. 3 . 
 
 1 Kic. 2, 0. 12 
 5 Ric. 2, c. 7 
 
 12 Eic. 2, c. 2 
 
 13 Hen. 4, c. 7 
 
 2 Hen. 5, St. 1, c. 4. 
 2 Hen. 6, c. 15. 
 8 Hen. 6, c. 9 
 23 Hen. 8, c.'5, s. 3 
 
 c. 15 . 
 
 25 Hen. 8, c. 11 . 
 
 33 Hen. 8, o. 6 . 
 
 C.10 . 
 
 1 & 2 Ph. & Mary, c. 12, s. 1 
 
 s. 2 
 
 29 Eliz. c. 4, s. 1 . 
 
 31 Eliz. c. 11 
 
 43 Eliz. c. 2, s. 7 . 
 
 c. 5, B. 2 . 
 
 c. 6, B. 2 . 
 
 4 Jac. 1, c. 3, B. 2 . 
 
 7 Jac. 1, c. 5 . 
 
 21 Jac. 1, c. 3 
 
 B. 2 
 B. 6 
 
 c. 12, s. 5 
 
 clS . 
 
 c. 16 . 
 
 B. 3 
 
 B. 4 
 B. 6 
 
 c. 23, s. 2 
 16&17Car. 2,c. 8 
 
 PAGE 
 
 112, 1061 
 . 527 
 637. 540 
 . 553 
 231 
 1006, 1010 
 . 231 
 . 553 
 . 667 
 . 253 
 . 645 
 . 38 
 . 924 
 . 198 
 . 924 
 . 682 
 . 683 
 . 631 
 . 667 
 268, 573 
 . 685 
 . 685 
 . 685 
 199 
 268, 1001 
 . 229 
 . 1006 
 . 10 
 . 686 
 . 683 
 540, 1001 
 . 544 
 . 663 
 . 268 
 . 898 
 . 1048 
 . 1011 
 . 1006 
 . 586 
 . 48 
 . 52 
 • 48,55 
 586, 697 
 . 268 
 1010, 1016 
 . 970 
 . 970 
 1009, 101-0 
 . 1048 
 . 291 
 
 PAGE 
 
 ion 
 
 658 
 941 
 
 22 & 23 Car. 2, c. 9 
 
 29 Car. 2, c. 7, s. 6 
 
 30 Car. 2, c. 7 
 
 1 W. & M. c. 21, B. 6 . . . 689 
 
 2 W. & M. Bess. 1, c. 6, 534, 539, 545, 560, 
 
 567 
 s. 1 
 a. 2 
 e. 3 
 
 8.4 
 
 s. 5 
 4&6 W. &M. c. 34,s. 12 
 8 & 9 "Wai. 3, c. 11, s, 1 
 s. 2 
 B. 4 
 c. 27, B. 8 
 c. 30, s. 3 
 11 & 12 Will. 3, c. 15 
 4 Anne, c. 16 
 
 B. 5 . 
 8.27 
 
 6 Anne, c. 31, s. 6 
 
 s. 7 
 
 7 Anne, v. 12, b. 3 
 
 8 Anne, c. 14 
 
 s. 1 
 
 SB. 6, 7 
 e. 19 
 
 9 Anne, c. 20 
 
 8S. 2, 3 
 
 B.7 . 
 
 4 Geo. 2, 0. 28, s. 1 
 8 Geo. 2, c. 13 
 
 s. 1 
 11 Geo. 2, c. 19 . 
 
 B. 1 
 
 s. 2 
 
 B. 4 
 B.7 
 B. S 
 8.9 
 B. 10 
 
 s. 18 
 s. 19 
 
 B. 21 
 
 8.22 
 13 Geo. 2, 0. 18 . 
 16 Geo. 2, c. 18, s. 3 
 20 Geo. 2, c. 19 . 
 24 Geo. 2, c. 44, s. 6 
 
 1071 
 
 541, 543 
 
 . 641 
 
 . 628 
 
 540, 1001 
 
 637, 565 
 . 941 
 ■. 1007 
 . 1007 
 . 1018 
 . 661 
 . 1008 
 . 602 
 . 1076 
 . 1006 
 
 919, 988 
 
 . 249 
 
 . 249 
 
 . 531 
 
 518, 568, 665 
 
 656, 672 
 . 522 
 . 41 
 1074, 1076 
 . 1076 
 . 1076 
 
 . 46 
 . 46 
 542, 643 
 534, 561 
 . 534 
 . 706 
 . 534 
 626, 528, 642, 
 628, 543 
 539, 540 
 . 559 
 537, 645, 563, 567 
 . .560 
 658, 659, 561 
 . 1048 
 
 720, 731, 1019 
 
INDEX OF STATUTES CITED. 
 
 Ixxxi 
 
 7 Geo. 3, c. 38 
 
 go 2-8 
 
 12 Geo. 3, c. 73, b.85 
 
 s. 37 
 
 s. ie 
 
 13 Geo. 3, e. 78, s. 81 
 
 14 Geo. 3, c. 78, s. 86 
 17 Geo. 3, c. 57 . 
 32 Geo. 3, c. 60, s. 1 
 
 SB. 2, 3 
 38 Geo. 3, c. 7;i . 
 41 Geo. 3. c. 107 . 
 
 . c. 109, s. 32 
 43 Geo. 3, c. 46, b. 4 
 
 c. 99, s. 70 ' 
 52 Geo. 3, c. 146, ss. 1-7 
 
 . s. 12 
 54 Geo. 3, o. 56 . 
 
 8S. 3, 
 C.-156. 
 c. 159. B. 11 
 s. 14 
 
 B. 4. 
 
 8. 113 
 8. 134 
 
 PAGE 
 . 46 
 
 . 46 
 . 251 
 . 249 
 . 249 
 . 763 
 . 249 
 . 46 
 . 829 
 . 829 
 . 45 
 . 41 
 . 159 
 . 1020 
 . 765 
 . 900 
 . 900 
 . 45 
 . 45 
 . 41 
 . 199 
 . 102 
 . 544 
 . 544 
 . 765 
 . 228 
 , . 979 
 . 717 
 . 720 
 . 582 
 . 167 
 . 338 
 . 1020 
 . 288 
 . 288 
 . 979 
 838, 866 
 ' . 658 
 . 580 
 . 600' 
 . 592 
 s. 15 , . 666 
 473, 4.74, 476, 
 477, 478, 479, 
 481, 508 
 s. 2 . . . .474 
 ss. 3, 4, S, 6, 7 . . 475 
 B. 8 . . 475, 479, 506 
 1 Wm. 4, c. 21, B. 1 . 1022, 1045 
 a. 31071,1074,1076,1078 
 S.4 ^"^" 
 
 s. 5 
 s. 6 
 c. 22, s. 10 
 1 & 2 Will. 4, e. 82, s 
 c. 41 
 
 67 Geo. 3, c. 93 
 3 Geo. 4, c. 126 
 
 4 Geo. 4, c. 34 
 
 5 Geo. 4, c. 83. 
 
 s.4 
 7 & 8 Geo. 4, c. 18 
 
 c. 29, s. 57 
 c. 30, s. 41 
 c. 31, s. 2 
 B. 8 
 0. 53, s. 17. 
 
 9 Geo. 4, c. 14. B. 6 
 
 c. 31, s. 23 
 s. 25 
 B 27 
 
 10 Geo. 4, c. 44, s. 41 
 llGeo.4&lWill.4, c. 
 
 c, 
 
 c. 58 
 
 30 
 
 B. li 
 s. 19 
 
 s. l' 
 s. 6 
 
 2 & 3 Will. 4, c, 71. 
 
 s. 2 
 
 s. 3 
 
 s.4 
 
 1076 
 . 1077 
 . 1078 
 . 9^8 
 . 699 
 . 688 
 . 580 
 587, 1019 
 327, 1076 
 455, 654 
 683, 664 
 . 1076 
 116, 119 
 116, 119, 
 130, 300 
 116, 118, 119, 
 126, 130, 300 
 117, 125, 126 
 117, 128, 129, 
 130, lai 
 
 PAGE 
 
 2 & 3 Will. 4, 0. 71, s. 5 . 117, 119, 295, 
 
 299, 300 
 
 B. 6 . . 117, 130 
 
 s. 7 . 118, 126, 131, 
 
 132 
 
 3 & 4 Will. 4, c. 15 
 
 ss. 2, 3 
 c. 27, s. 2 
 s. 3 . 
 ss. 4, 5 
 s. 7. 
 s. 8. 
 s. 9. 
 B. 10 
 B. 11 
 B. 14 
 
 s. 16 
 s. 17 
 B. 25 
 s. 26 
 s. 29 
 s. 36 
 0. 42 
 
 s. 2. 
 s. 21 
 
 BB. 23, 24 
 8. 2» 
 B. 3i 
 s. 32 
 s. 34 
 ss. 37, 31 
 
 4 & 5 Will. 4, c. 76, s. 56" 
 s. 58 
 s. 69 
 
 5&6WilI. 4, c. 20,B. 19 
 c. 50, s. 23 
 
 SB. 20, 41 
 
 B. 70 
 s. 72 
 s. 73 
 s. 98 
 B. 109 
 
 c. 65 
 
 s. 5. 
 
 c. 76 
 
 5 & 6 Will. 4, c. 76, s. 1 . 
 
 s. 76. 
 s. 90. 
 B. 91 
 s. Ill 
 B. 113 
 s. 127 
 s. 131 
 8.133 
 i;. 83, s. 1 
 s. 4 
 B. 7 
 
 6 & 7 wm. 4, 0. 76 
 
 s. 19 
 0. 85, B. 4 
 s. 5 
 B. 18 
 s. 20 
 
 ss. 23, 24 
 c. 86, 8. 2 
 ' • B. 9, 
 s. 80 
 
 8.31 
 
 118, 132 
 . 44 
 . 44 
 . 271 
 
 271, 273 
 . 273 
 
 273, 276 
 . 274 
 . 275 
 . 275 
 . 275 
 . 276 
 . 276 
 . 276 
 . 274 
 . 276 
 . 276 
 
 180, 253 
 . 945 
 
 924, 940 
 . 560 
 . 986 
 . 378 
 .1020 
 .1007 
 .1007 
 . 525 
 . 898 
 . 598 
 
 . 765 
 . 226 
 . 17 
 . 171 
 . 171 
 . 172 
 . 720 
 . 766 
 . 43 
 . 43 
 . 288 
 . 35 
 568, 587 
 36, 36, 102 
 . 35 
 . 685 
 . 587 
 . 685 
 685, 710 
 1020 
 . 52 
 . 48 
 . 53 
 . 819 
 . 819 
 . 901 
 . 901 
 . 901 
 . 901 
 . 901 
 . 900 
 . 901 
 . 901 
 . 901 
 
Ixxxii 
 
 INDEX OF STATUTES CITED. 
 
 6&7WiU. 4,c. 86, 8. 33 . 
 
 PAGE 
 
 . 901 
 
 8 Vict. 
 
 0.20, 
 
 s. 97\ . 
 
 PAGE 
 . 491 
 
 ». 34 
 
 . 901 
 
 
 
 88. 103, 104 . 685, sil 
 
 s. 35 
 
 . 901 
 
 
 
 BS. 108—111 . . 37 
 
 s. 36 
 
 . 901 
 
 
 c. 80, 
 
 »■ 81 . . . .91 
 
 8.39 
 
 . 901 
 
 8 & 9 Vict. 
 
 16, B. 141. . . 765 
 18 . . 748,751,764 
 
 7 Will. 4 &1 Vict. c. 28. 
 
 . 278 
 
 
 
 
 e. 36. 
 
 . 437 
 
 
 
 s. 16 . . . 761 
 
 c. 55 . 
 
 663, 664 
 
 
 
 tf. 18 . . . 751 
 
 c. 78, s. 31 
 
 . 685 
 
 
 
 SB. 22—49 . . 761 
 
 1 &2-Vict. 0. 45, s. 2 . 
 
 . 654 
 
 
 
 SB. 25—37 . . 756 
 
 0. 74 . 
 
 . 699 
 
 
 
 s. 39 . . . 638 
 
 C. 110, 83. 1, 10 
 
 . 625 
 
 
 
 s. 49 . . . 762 
 
 2 & 3 Viet. c. 12, s. 2 . 
 
 . 817 
 
 
 
 B. 54 . . . 765 
 
 c. 47 . . 
 
 . 588 
 
 
 
 s. 68 . 761, 752, 753, 
 
 8.18 . 
 
 . 580 
 
 
 
 755,768,769, 
 
 8.54 . 
 
 . 583 
 
 
 
 760, 761 
 
 88. 63, 66 
 
 . 584 
 
 
 
 SB. 68, 69 . . 756 
 
 8. 79 . 
 
 . 592 
 
 
 
 s. 92 . . . 762 
 
 c. 54, 8. 1 . 
 
 . 897, 898 
 
 
 
 B. 121. . 751,762 
 
 88. 3, 4 
 
 . 897 
 
 
 
 8. 127 . 761, 762 
 
 c. 71,8. 52.' 
 
 . 588 
 
 
 
 8. 128 . . 761 
 
 8.63 . 
 
 . 587 
 
 
 
 8. 136 . 765, 767 
 
 0. 84, 8. 11 . 
 
 . . 701 
 
 
 c 
 
 . 20, s. 6 . . . 762 
 
 e. 93 . 
 
 . 588 
 
 
 
 B. 16 . . . 1070 
 
 8.8 . 
 
 . 580, 588 
 
 
 
 B. 46 . . . 183 
 
 8 & 4 Vict. c. 9 . 
 
 . 793 
 
 
 
 a. 47 . . . 184 
 
 88. 2, 3 
 
 . 793 
 
 
 
 B. 48 . . . 384 
 
 C.24 . 
 
 1010, 1016 
 
 
 
 ■!. 58 . . . 184 
 
 8.1 . 
 
 . 1011 
 
 
 
 8. 68 . . . 188 
 
 8. 2 1010, 
 
 1011, 1012, 
 
 
 
 s. 76 . . . 185 
 
 1016 
 
 1017, 1018 
 
 
 
 B. 77 . . .90 
 
 s. 3 . 
 
 . 1018 
 
 
 
 s. 78 . . . . 90 
 
 0. 65 . 
 
 . 409, 963 
 
 
 
 SB. 108—111 . 703 
 
 0. 88 . 
 
 . 588 
 
 
 
 s. 139. . . 767 
 
 .;. 92 . 
 
 . 901 
 
 
 
 
 87, s. 116 . 379, 747- 
 
 3 & 4 Vict. c. 92, B. 5 . 
 
 . 901 
 
 
 e 
 
 100 . . . .586 
 
 8. 6 . 
 
 . 901 
 
 
 
 
 106, s. 9 . . .518 
 
 8.9 . 
 
 . 902 
 
 
 c 
 
 113 . . . . 826 
 
 8.11 . 
 
 . 902 
 
 
 
 3. 1 . , .607 
 
 B. 12 . 
 
 . 902 
 
 
 
 8. 2 . . .629 
 
 8. 18 . 
 
 . ^02 
 
 9 & 10 Vict. 0. 93, 392, 408, 420, 423, 
 
 5&^Vict. c. 45 . 
 
 . 41, 43, 46 
 
 
 
 925, 946, 957 
 
 s. 17 . 
 
 . 41 
 
 
 
 8. 1 . . .32 
 
 BS. 20, 21 
 
 . 44 
 
 
 
 8.2 . . .408 
 
 8. 22 . 
 
 . 44 
 
 
 
 3. 3 . . .408 
 
 88. 24, 26 
 
 . 41 
 
 
 
 8. 4 . . .408 
 
 c. 97, B. 1 . 
 
 . 1022 
 
 
 c 
 
 95 . . 654, 947', 1060 
 
 s. 2 . 
 
 1022, 1023 
 
 
 
 s. 16 . . . 948 
 
 s. 3 . 
 
 768, 958 
 
 
 
 s. 33 . . . 664 
 
 8.4 . 
 
 . 592 
 
 
 
 B. 68 . 948,949,951, 
 
 B. 5 . 
 
 . 763 
 
 
 
 962 
 
 c. 98, 8. 31 . 
 
 664, 667 
 
 
 
 B. 79 . . . 1008 
 
 c. 100, 88. 8, 9 
 
 . 46 
 
 
 
 3.88 . 
 
 . 1026 . 
 
 6 & 7 Viet. c. 65 . 
 
 . 45 
 
 
 
 s. 90 . 
 
 642, .1060 
 
 C.J67, 8. 1 . 
 
 1077, 1078 
 
 
 
 s. Ill . 
 
 . 678 
 
 c. 89, B. 5 . 
 
 . 1072 
 
 
 
 3. 113 . 
 
 . 640 
 
 c. 96, 8. 1 . 
 
 . 829 
 
 
 
 3.118. , 
 
 , 669 
 
 8.2 . . 
 
 . 815 
 
 
 
 s. 138 . 
 
 667, 688 
 
 BB. 4, 5, 6 
 
 . 832 
 
 10 Vict 
 
 0.14, 
 
 38. 42—49 
 
 . 37 
 
 B. 8 . 
 
 . 1022 
 
 
 0. 16 
 
 SB. 96—98 
 
 , 37 
 
 7&8Viot. C.2 . 
 
 . 409 
 
 
 c. 27 
 
 BS. 83-90 
 
 , 37 
 
 B. 35 . 
 
 . 410 
 
 10 & 11 Vict.' 
 
 0. 14, s. 51 
 
 . 767 
 
 0.12 . . •. 
 
 . 41 
 
 
 
 c. 15, 68, 21—23 < 48 
 
 0. 69, BS. 6, 6 
 
 . 52 
 
 
 
 BS. 11, 21—23, 
 
 c. 83, 8. 2 . 
 
 . 48 
 
 
 
 25,29 . 200 
 
 0.84 . 
 
 . 200 
 
 
 
 0.16,3.103 . . 767 
 
 c. 112,8. 18. 
 
 . 40 
 
 
 
 0. 17, 8. 6 . 
 
 . 746 
 
 8 Vict. c. 16, BB. 124—127 . 
 
 . 37 
 
 
 
 8,42 
 
 . 40 
 
 0. 20 . 
 
 . 750 
 
 
 
 i 3.84 
 
 ■ . 767 
 
 BS. 68, 69 . 
 
 . 770 
 
 - 
 
 
 c. 27, 8. 91 
 
 . 767 
 
INDEX OF STATUTES CITED. 
 
 Ixxxiii 
 
 
 
 PAGE 
 
 
 
 
 PAGE 
 
 lO&ll Vict. c. 34 
 
 , 
 
 . 750 
 
 12 & 13 Vict 
 
 c 
 
 68, BS. 11, 12, 18 . 902 
 
 s. 24 
 
 1 * 
 
 . 745 
 
 
 c 
 
 92 
 
 . 541 
 
 s. 107 
 
 
 . 745 
 
 
 
 s. 5 
 
 550, 554 
 
 ss. 128 
 
 200—207 38 
 
 
 c 
 
 106, s. 106 . 
 
 . 666 
 
 s. 209 
 
 
 . 767 
 
 
 
 s. 125 . 
 
 . 349 
 
 c. 38 
 
 
 . 60 
 
 
 
 s. 126 . 
 
 . 348 
 
 c. 65, s. 61 
 
 
 . 767 
 
 
 
 s. 129 . 
 
 . 533 
 
 0. 89, S3. 68- 
 
 -71 
 
 . 38 
 
 
 
 S.133 . 
 
 345, 346 
 
 E>. 69 
 
 , 
 
 . 36 
 
 
 
 
 109, s. 39 . 
 
 . 1047 
 
 S.72 
 
 
 . 767 
 
 13 & 14 Vict. 
 
 c. 
 
 61, s. 1 
 
 . 948 
 
 c. 95 
 
 
 . 41 
 
 
 
 s. 2. 
 
 . 1050 
 
 11 &. 12 Vict. 0. 42 
 
 
 685, 692 
 
 
 
 B. 14 
 
 . 1060 
 
 ss. 9, 10 . 
 
 . 692 
 
 
 
 S3. 14,15. 
 
 . 1050 
 
 s. 16 
 
 
 . 696 
 
 
 
 - s. 16 
 
 . 1050 
 
 S.17 
 
 
 630, 692 
 
 
 
 s. 19 
 
 . 668 
 
 s. 20 
 
 
 630, 692 
 
 
 
 s. 22 
 
 . 1046 
 
 s. 27 
 
 
 630, 692 
 
 c 
 
 . 
 
 104, s. 7 
 
 . 45 
 
 c. 43, 8. 1 
 
 
 . 694 
 
 14 & 15 Vict. 
 
 i:. 
 
 19, s. 11 . 
 
 . 580 
 
 S.2 
 
 
 . 695 
 
 
 C. 
 
 25, s. 1 
 
 . 520 
 
 S.6 
 
 
 . 685 
 
 
 
 s.2. 
 
 . 531 
 
 s. 7 
 
 
 . 696 
 
 
 
 s. 3. 
 
 . 244 
 
 s. 8 
 
 
 694, 695 
 
 
 c. 
 
 99, s. 4 . 
 
 . 898 
 
 s. 10 
 
 
 . 694 
 
 
 
 B. 8. 
 
 . 825 
 
 B. 11 
 
 
 685, 695 
 
 
 
 s. 13 
 
 . 631 
 
 s. 13 
 
 
 . 696 
 
 
 
 s.14 
 
 703, 902 
 
 S.14 
 
 
 703, 1058 
 
 15 & 16 Vict. 
 
 C 
 
 12 
 
 . 41 
 
 s.17 
 
 
 707, 710 
 
 
 C. 
 
 76 598, 624 
 
 929, 957 
 
 s. 19 
 
 
 708, 722 
 
 
 
 s. 3. 
 
 . 955 
 
 ss. 20, 
 
 2l' 
 
 . 708 
 
 
 
 s. 34 ' . 
 
 . 944 
 
 ss. 22, 
 
 23, 
 
 24 . 709 
 
 
 
 B. 35 
 
 . 944 
 
 s. 25 
 
 
 . 710 
 
 
 
 s. 36 
 
 . 945 
 
 s.27 
 
 
 . 711 
 
 
 
 B. 37 
 
 . 945 
 
 =.35 
 
 
 685, 711 
 
 
 
 s. 40 
 
 922, 955 
 
 c. 44 
 
 
 . 1055 
 
 
 
 s. 41 
 
 . 955 
 
 s. 1 
 
 
 723, 728 
 
 
 
 s. 49 
 
 . 960 
 
 B. 2 
 
 71-9 
 
 , 723, 728 
 
 
 
 s. 54 . 
 
 . 956 
 
 s. 3 
 
 
 . 729 
 
 
 
 B. 59 
 
 . 456 
 
 s. 4 
 
 
 700, 709 
 
 
 
 SB. 59, 60 
 
 . 956 
 
 s.6 
 
 
 . 712 
 
 
 
 B. 61 
 
 812, 815 
 
 B.7 
 
 
 . 725 
 
 
 
 s. 68 
 
 . 961 
 
 s. 8 
 
 
 . 726 
 
 
 
 s. 70 
 
 . 961 
 
 B.9 
 
 
 594, 726 
 
 
 
 s. 71 . 
 
 . 961 
 
 s. 10 
 
 
 . 730 
 
 
 
 s. 74 
 
 . 960 
 
 s. 11 
 
 594, 725. 728 
 
 
 
 B. 75 
 
 960, 974 
 
 B. 13 
 
 
 733, 1019 
 
 
 
 ss. 76, 78 
 
 . 959 
 
 s.14 
 
 
 . 1019 
 
 
 
 SB. 76-79 
 
 . 973 
 
 c. 63 
 
 
 . 748 
 
 
 
 B. 77 
 
 . 959 
 
 S.37 
 
 
 . 741 
 
 
 
 s. 81 
 
 . 1025 
 
 s. 64 
 
 
 . 48 
 
 
 
 SB. 81, 84 
 
 . 959 
 
 s. 68 
 
 
 . 741 
 
 
 
 B. 86 
 
 . 959 
 
 s. 69 
 
 
 . 229 
 
 
 
 SS. 87, 88 
 
 . 975 
 
 s. 89 
 
 
 . 1069 
 
 
 
 S. 126 . 
 
 . 661 
 
 ». 1-17 
 
 
 . 741 
 
 
 
 ss. 135—142 . 946 
 
 B. 125 
 
 
 . 744 
 
 
 
 s. 137 . 
 
 . 946 
 
 8.138 
 
 
 . 768 
 
 
 
 s. 142 . 
 
 . 969 
 
 s. 139 
 
 
 . 766 
 
 
 
 s. 145 . 1008, 1025 
 
 s. 140 
 
 
 . 741 
 
 * 
 
 
 s. 214 . 
 
 . 314 
 
 S.144 
 
 
 749, 1071 
 
 
 
 s. 222 . 
 
 945, 986 
 
 s. 145 
 
 
 . 744 
 
 
 
 s. 223 . 
 
 . 1023 
 
 c. 99, s. 1 
 
 
 . 83 
 
 
 
 s. 226 . 
 
 . 1037 
 
 c. 107 
 
 
 . 491 
 
 
 
 sch. . 
 
 . 291 
 
 c. 123 
 
 
 .'■ 951 
 
 
 
 pi . 46 . 
 
 . 297 
 
 12 & 13 Vict. c. 44 
 
 
 . 711 
 
 
 
 pr. 47 
 
 . 296 
 
 s.2 
 
 
 . 711 
 
 
 
 sch. A. Nos. 14, 15 314 
 
 - e. 45 
 
 
 . 714 
 
 
 
 sch. B. . 293, 
 
 572, 864 
 
 s. 5 
 
 
 . 720 
 
 
 
 sch. B. 28 . 
 
 . 366 
 
 s.6 
 
 
 . 1008 
 
 
 
 sch. B. 29 . 
 
 . 456 
 
 s. 7 
 
 
 . 717 
 
 
 
 sch. B. 38, 39 
 
 . 911 
 
 s. 13 
 
 
 . 720 
 
 
 
 sch. B. 44 . 
 
 . 73 
 
 s.18 
 
 
 . 1058 
 
 c. kxvii. s. 121 Loc, 
 
 ) . 1013 
 
Ixxxiv 
 
 INDEX OF STATUTES CITED. 
 
 15 & 16 "Vict. c. 83 
 
 s. 18 
 B. 25 
 B. 27 
 s. 35, 
 ss. 41, 42 
 s. 42- 
 
 c. 85 
 c. 
 
 , a. 42, rule 
 8.62 
 
 16 & 17 Vict. 0. 59, s. 19 
 
 0. 83, s. 2 
 
 0. 96, 
 
 c. 107, s. 9 
 
 B. 263 
 c. 128 . 
 
 17 & 18 Vict. 0. 31, 480, 481, 504, 515 
 
 B. 2. 
 
 PAGE 
 . 61 
 
 . 54 
 . 49 
 . 51 
 . 54 
 . 52 
 . 1036 
 280, 1030 
 5 . 262 
 . 1033 
 . 343 
 . 898 
 . 586 
 . 280 
 . 1020 
 194, 201 
 
 468 
 
 B. 3 . 504, 513, 1036 
 bS. 3—6 . . 504 
 B. 7, 480, 481, 482 
 483,5ip, 511 
 . 359 
 332, 359, 360 
 . .'>41 
 . 550, 554 
 -392 
 
 c. 38, B. 1 
 
 s. 7 
 c. 60 
 
 s. 1 
 c. 104, ss. 295—299 
 
 s. 364 - . 
 
 s. 388 . 
 
 ss. 458, 460 
 
 s. 502, et seq. 
 
 s. 503 
 
 s. 512 
 
 s. 514 
 c. 125 
 
 B. 1. 
 
 s. 18 
 
 s. 24 
 
 8.44 
 
 s. 69 
 
 S3. 69, 70. 
 B. 70 
 
 SB. 71—74 
 8.75 
 
 8.76 
 
 s. 77' 
 B. 78 
 ^. . -B, 79 
 
 8.81 
 
 s. 82 
 s. 83 
 B. 84 ■ 
 s. 85 
 s. 86 
 B. 96 
 B. 103 
 18 & 19 Vict. c. 41 
 
 c. 63, BS. 41, 42, 
 
 C..120 
 
 8. 76 
 B. 86 
 i c. 121 . 
 B. 8. 
 s. 19 
 B. 22 
 .SB, 23. 
 
 0. 122 . 
 s. 3. 
 
 390 
 390 
 953 
 395 
 437 
 410 
 . 395 
 756, 1017 
 . 955 
 . 975 
 . 978 
 . 1023 
 1071, 1079 
 . 1080 
 71^ 1084 
 1080 
 1080 
 1072 
 . 1072 
 . 1072 
 462, 463 
 . 1035 
 . 1035 
 1035, 1036 
 ..972 
 . 972 
 . 972 
 . 972 
 . 986 
 . 978 
 1041 
 949 
 750 
 295 
 746 
 194 
 194 
 951 
 194 
 48 
 
 44 
 
 26,27 
 
 179, 196, 287 
 . 196 
 9—81 194, 199 
 
 18 & 19 Vict. c. 122,8. 83 
 
 ss. 83—85 
 * 8. 94 
 
 8.97 
 
 e. 126, . 
 
 19 & 20 Vict, c. 69 
 
 B. 15 
 c. 97, B, 1 
 s. 10 
 • 0. 107 . 
 c. 108, s. 19 
 B. 20 
 s. 21 
 s. 23 
 s. 25 
 B. 26 
 
 S3. 40, 41, 
 
 B. 41 
 
 ss. 40,41,42. 1046 
 
 8. 43 
 f. 44 
 BS. 50, 51 
 
 ss. 55, 56 
 
 B. 59 
 
 B. 60 
 
 B. 63 
 
 8.65 
 
 s. 66 
 
 SB. 70, 71 
 
 s. 75 
 
 0. 119, s'. 24 
 
 20 Vict. c. 2, s. 4 . 
 
 20 & 21 Vict. c. 14, B. 24 
 
 c. 27 
 
 c. 4S 
 
 0-. 81 
 c. 85j 
 
 PAGE 
 
 . 153 
 .' 196 
 179, 402 
 . 200 
 . 686 
 . 688 
 . 588 
 . 652 
 . 970 
 . 201 
 . 667 
 . 1014 
 . 668 
 . 954. 
 . 954 
 . 945 
 . 1050 
 . 1062 
 . 1074 
 
 643, 1056 
 1047, 1052 
 
 . 640 
 . 668 
 . 563 
 553, 564 
 . 663 
 . 1060 
 
 . 588 
 . 1026 
 . 261 
 . 712 
 . 712 
 . 713 
 194, 279 
 . 882 
 . 884 
 881 
 
 ss. 3—5 
 SB. 7, 8 
 
 8.7 
 
 e. 16 
 s. 17 
 
 B. 21 880, 881, 937 
 88.21,26 .' 937 
 B. 23 . . -882 
 8. 24 . . 886 
 8. 26, 885, 886, 923, 
 937 
 s. 27 
 B. 28 
 s. 29 
 s. 30 
 B. 31 
 s. 32 
 
 ss. 33, 34 
 s. 35 
 s. 36 
 " s. 38 
 B. 39 
 s. 45 
 8.59 
 
 c. olvii; (lipo.) 
 21 & 22 Vict. c. 25, ss. 1, 2 
 
 c. 27 
 
 886, 887 
 
 887, 903 
 . 890 
 . 900 
 .. 905 
 
 891, 892 
 
 900 
 
 . 890 
 
 ■ 900 
 
 1045 
 
 901 
 
 52,158,1028,1034 
 
 B, 3 1028, 1034 
 
 B. 5 . . 1034 
 
 c. 70 . . . f5 
 
 B. 7 . .45 
 
INDEX OF Sl'ATUTES CITED. 
 
 Ixxxv 
 
 
 PAGE 
 
 
 PAGE 
 
 21 & 22 Viot. c. 70, s. 8 
 
 . 949 
 
 25 & 26 Vict. c. 61, s. 46 
 
 . 228 
 
 s. 9 
 
 949, 1046 
 
 0, 63 
 
 . 489 
 
 u. 74, D. 4 
 
 . 1056 
 
 B. 25 
 
 . 392 
 
 c. 90, s. 29 . 
 
 .1064 
 
 s. 29 
 
 . 393 
 
 c. 98 . . 
 
 194, 1049 
 
 s. 33 
 
 . 394 
 
 B. 34 . 
 
 . 37 
 
 s. 37 
 
 . 582 
 
 c. 101 . 
 
 . 712 
 
 8. 49 
 
 . 953 
 
 c. 108, s. 6 
 
 . 880 
 
 s. 54 
 
 391, 437 
 
 B. 7 
 
 . 880 
 
 ES. 57—64 
 
 . 392 
 
 B. 19 . 
 
 . 881 
 
 s. 67 
 
 447, 490 
 
 s. 22 . 
 
 . 892 
 
 83. 73—76 
 
 . 450 
 
 22 Viot. c. 1 . . . 
 
 . 194 
 
 ss. 507, 508 . 391 
 
 22 & 23 Vict. u. 37, s. 2 
 
 325, 747 
 
 s. 510. 
 
 . 391 
 
 c. 61, s. 4 
 
 891, 893 
 
 8.516 
 
 . 392 
 
 s. 5 
 
 . 890 
 
 Sohed. Ta 
 
 b. 0. 392 
 
 s. 6 
 
 . 899 
 
 c. 68 
 
 . 47 
 
 23 & 24 Vict. c. 32 
 
 . 1041 
 
 ss. 1—3 
 
 . 47 
 
 ss. 2, 3 
 
 . 582 
 
 s. 9 . 
 
 . 1036 
 
 c. 77 
 
 . 194 
 
 8. 11 
 
 . 47 
 
 s. 8 
 
 48, 201 
 
 c. 69, 8. 16 
 
 102, 280 
 
 c. 126, s. 12 . 
 
 455, 654 
 
 0. 88, s. 2 
 
 . 872 
 
 E. 19 . 
 
 929, 943 
 
 s. 3 . 
 
 . 872 
 
 B. 25 
 
 . 459 
 
 ss. 4, 11 
 
 . 48 
 
 s. 32 
 
 . 1022 
 
 8.12 
 
 . 872 
 
 s. 36 
 
 . 986 
 
 s. 13 
 
 . 872 
 
 c. 127,8. 28 
 
 . 447 
 
 B. 19 
 
 . 856 
 
 c. 144,8.6 
 
 . 890 
 
 s. 20 
 
 . 856 
 
 c. 151,3. 10 
 
 . 398 
 
 c. 89, 3. 35 
 
 . 1085 
 
 24 Viot. c. 10, 8. 6 
 
 . 396 
 
 ss. 87, 16C 
 
 ! 531, 653 
 
 3. 7 .3! 
 
 )2, 397, 410 
 
 e. 91 
 
 . 1064 
 
 c. 24, s. 13 
 
 . 395 
 
 c. 102 
 
 . 746, 766 
 
 24 & 25 Vict. c. 70, s. 13 
 
 . . 172 
 
 ss. 77, 96 
 
 . -39 
 
 - c. 73 
 
 . 45 
 
 s. 96 
 
 . 560 
 
 C.96 
 
 . 338, 687 
 
 8.106 
 
 760, 766 
 
 B. 24 
 
 . 699 
 
 26 & 27 Viot. 0. 41,83. 1, 2,3 
 
 ,4 . 50Q 
 
 8. 84 
 
 . 840 
 
 c:77 
 
 . 685 
 
 8.88 
 
 . 873 
 
 c. 88 
 
 . 60 
 
 8.100 
 
 . 338 
 
 0. 103 
 
 . 268 
 
 8. 103 5 
 
 ^8, 591, 687 
 
 c. 117 
 
 . 194 
 
 8.113 
 
 . 588, 591 
 
 27 & 28 Vict. c. 44 
 
 . 880 
 
 C.97 
 
 . 588 
 
 c. 48 
 
 . 398 
 
 8.61 
 
 . 579 
 
 c. 72 
 
 . 60 
 
 s. 62 
 
 . 696 
 
 c. 75 
 
 . 171 
 
 B. 71 
 
 . 1020 
 
 c. 95 
 
 . 409 
 
 c. 100, s. 31 
 
 . 167 
 
 c. 101, s. 22 
 
 . 228 
 
 ^ 8. 42 
 
 . 600 
 
 88. 23, 2 
 
 4 . 228 
 
 8. 44 
 
 . ■ 600, 601 
 
 8. 25 
 
 . 198, 226 
 
 a. 45 
 
 . 600 
 
 8.51 
 
 . 225, 270 
 
 s. 5S 
 
 . 915 
 
 c. 113 
 
 . ■ . 390 
 
 s. 55 
 
 . 915 
 
 28 & 29 Vict. 0. 52 
 
 . 60 
 
 ss. 74, 75 
 
 . 1027 
 
 c. 60 
 
 . 23, 192 
 
 c. 101 . 
 
 . 46 
 
 c. 75 
 
 . 194 
 
 0. 109 
 
 . 194, 199 
 
 s. IQ 
 
 . 166 
 
 0. 133 . 
 
 . 60 
 
 c. 83, ss. 3, 4 
 
 . 172 
 
 s. 72,«ci i 
 
 eg. . 60 
 
 s. 6 ■> 
 
 . . 171- 
 
 c. 134 . ' 
 
 . 926 
 
 8. 8. 
 
 . 172 
 
 8.73 
 
 . 346 
 
 u. 94 
 
 . 474 
 
 8.110 
 
 . 344 
 
 c. 99, 8, 1 . 
 
 . 952 
 
 25 & 26 Viot. c. 42 
 
 . 1031 
 
 ss. 3, 9 
 
 . 952 
 
 S3. 1, 2 
 
 . 103^ 
 
 ss. 10, 11 
 
 . 953 
 
 . B. 4 . 
 
 . 1034 
 
 s. 18 
 
 . 953 
 
 c. 53 
 
 . 271 
 
 s. 21 
 
 . 668 
 
 c. 59 
 
 . 23, 268 
 
 c. 121 
 
 . 194, 199 
 
 8.1 . 
 
 . 192 
 
 c. 127 . 194, 2 
 
 01, 708, 709 
 
 c. 61, 8. 17 
 
 . 228 
 
 29 & 30 Vict. c. 14,8.11 
 
 . 664, 668 
 
 • -s. 18 
 
 . 228 
 
 c. 32 
 
 . 890 
 
 8.19 
 
 . 228, 720 
 
 0. 37 
 
 . 851 
 
 s. 34 
 
 . 228 
 
 8. 18 
 
 . 856 
 
 9. 35 
 
 . 228 
 
 B. 19 
 
 . 857 
 
 s. 36 
 
 . 228 
 
 c. 69, ss. 3, 6 
 
 . 466 
 
Ixxxvi 
 
 INDEX OF STATUTES CITED. 
 
 
 
 PAGE 
 
 
 PAGE 
 
 29 & 30 Viet. e. 89 
 
 
 176, 390 
 
 32 & 33 Vict. 0. 18 
 
 . 1023 
 
 c. 90 
 
 . 
 
 . 951 
 
 c. 24 
 
 . 817, 819 
 
 ss. 1—13 . 
 
 . 194 
 
 c. 31 
 
 . Ill, 176 
 
 s, 14, et seq. 
 
 . 194 
 
 c. 47, ss. 5, 
 
 7 . .288 
 
 E<. 34 
 
 
 . 951 
 
 c. 61, s."2. 
 
 . 954 
 
 ss. 35- 
 
 -55 
 
 . 194 
 
 ss. 2- 
 
 -5 . . 953 
 
 30 & 31 Vict. c. 103 
 
 
 . 398 
 
 c. 57, s. 6 
 
 . 578,588, 
 
 c. 113 
 
 
 . 194 
 
 
 591, 687 
 
 c. 115 
 
 
 . 690 
 
 c. 62 
 
 605,641,662, 
 
 0. 124, ss. 4- 
 
 -e' 
 
 . 40 
 
 
 672, 709, 942 
 
 0. 127, BB. 4, 
 
 6,7, 
 
 9 . 653 
 
 ss. 1- 
 
 -10 . 942 
 
 c. 131, s. 38 
 
 
 . 842 
 
 s. 4. 
 
 . 709 
 
 c. 134 
 
 
 . 583 
 
 ». 6. 
 
 . 625 
 
 s. 6 
 
 
 . 583 
 
 S.9. 
 
 . 942 
 
 s. 7 
 
 
 . 583 
 
 BS. 11 
 
 -23 . 942 
 
 6. 15 
 
 
 . 583 
 
 c. 68 
 
 . 898 
 
 8. 18 
 
 
 . 583 
 
 8. 3. 
 
 . 899 
 
 c. 141 
 
 
 . 688 
 
 c. 70, ss. 6, 
 
 16-21, 57, 
 
 p. 142, s. 1 
 
 
 947, 948 
 
 58,103 . 4 
 
 6. 3 
 
 
 . 947 
 
 ss. 62, 
 
 63 . 491 
 
 s. 5 
 
 '1010,1013 
 
 ss. 62, 
 
 6.4 . 467 
 
 E. 9 
 
 
 . 952 
 
 8. 64 
 
 . 491 
 
 s. 10 
 
 555 
 
 586, 626, 
 
 SS.110 
 
 —113,588, 767 
 
 
 667, 
 
 810, 911, 
 
 c. 71 
 
 330, 344, 1032 
 
 
 
 948, 1026 
 
 B. 4 
 
 . 344. 
 
 ss. 11 
 
 ,12 
 
 639, 949 
 
 s. 6 
 
 345, 346, 347 
 
 s. 12 
 
 
 . 960 
 
 B. 10 
 
 . . 371 
 
 s. 13 
 
 * 
 
 . 1051 
 
 8.11 
 
 . 345 
 
 s. 14 
 
 
 . 1026 
 
 8.13 
 
 . 348 
 
 s. 31 
 
 
 . 669 
 
 s. 15 
 
 344, 345, 349 
 
 s. 33 
 
 
 . 1013 
 
 8.17 
 
 . 344 
 
 g. 35 
 
 
 . 953 
 
 8. 18 
 
 . 926 
 
 c. 146, s. 8 
 
 
 . 399 
 
 8.20 
 
 . 344 
 
 31 & 32 Vict. c. 5 . 
 
 
 . 583 
 
 B. 22 
 
 . 344, 926. 
 
 c. 29 
 
 
 . 1064 
 
 8. 23 
 
 344, 619, 928 
 
 c. 40, a 12 
 
 
 . 952 
 
 s. 24 
 
 . 345 
 
 c. 45 
 
 
 111, 336 
 
 s. 25 
 
 . 344, 926 
 
 ss. 27- 
 
 -56 
 
 111, 176 
 
 8.27 
 
 . ■ . 926 
 
 c. 47 
 
 
 . 279 
 
 8. 31 
 
 . 941 
 
 c. 52 
 
 
 . 582 
 
 8.34 
 
 . 533 
 
 c. 53 
 
 
 . 176 
 
 8.77 
 
 . 641, 942 
 
 c. 54 
 
 
 . 1020 
 
 68.80 
 
 83 . 34'4 
 
 B. 5 
 
 
 . 1026 
 
 8.84 
 
 . 519 
 
 s. 6 
 
 
 . 1020 
 
 8.86 
 
 . 641, 942 
 
 c. 67, s. 4 
 
 
 . 583 
 
 B. 87 
 
 . 347 
 
 c. 71 
 
 
 . 953 
 
 s. 91 
 
 . 348 
 
 s. 3 . 
 
 
 . 954 
 
 8. 92 ' 
 
 . 347 
 
 ss. 3, 6, 
 
 7/8 
 
 . 953 
 
 s. 94 
 
 . 348 
 
 s. 9 . 
 
 
 . 954 
 
 s. 99 
 
 . 666 
 
 S. 10; 
 
 
 . 953 
 
 s. 106 
 
 . 926 
 
 S.21. 
 
 
 . 953 
 
 8. 107 
 
 . 371, 926 
 
 s. 26. 
 
 
 . 953 
 
 sa? 108, 109 . 926 
 
 c. 106 
 
 
 . 102 
 
 8.117 
 
 . 358 
 
 c. 109 
 
 
 . 700 
 
 8. 125 
 
 . 345, 347 
 
 c. 110 
 
 
 14, 437 
 
 8,1^6 
 
 345, 348, 519 
 
 , c. Ill 
 
 
 . 688 
 
 c. 72 
 
 . 60 
 
 ' c. 115 
 
 
 . 194 
 
 u. 73,8.23 
 
 . 437 
 
 c. 117 
 
 
 . 279 
 
 c. 75 . 
 
 . 11 
 
 c. 119, s. 6 
 
 
 . 840 
 
 c. 82 
 
 194, 196, 199 
 
 8.14 
 
 
 487, 488 
 
 c. 83 
 
 . 344, 667 
 
 8.16 
 
 480 
 
 , 492, 514 
 
 c. 99, B. 9 
 
 . 582 
 
 S.17 
 
 
 493, 515 
 
 c. 113 . 
 
 . '466 
 
 , 8.18 
 
 
 . 492 
 
 33 & 34 Vict. c. 28, s. 7 
 
 . 403 
 
 S.22 
 
 
 . 382 
 
 c. 33 
 
 . 194 
 
 8.24 
 
 
 . 285 
 
 e. 35 . 
 
 . 621, 522 
 
 ss. 41- 
 
 -43 
 
 . 752 
 
 0. 61, s. 19 
 
 . 840 
 
 32 & 33 Vict. c. 12, s. 6 
 
 
 . 583 
 
 0. 76 
 
 344, 346, 942 
 
 s. 10 
 
 
 578,588, 
 
 ' c. 78 
 
 . 225 
 
 
 
 591,687 
 
 ss. 40, 
 
 55, 62 225 
 
 c. 14, s. 31 
 
 
 . 519 
 
 0. 90, 8. 28 
 
 . 365 
 
INDEX OF STATUTES CITED. 
 
 Ixxxvii 
 
 33 & 34- Vict. e. 93 
 
 34 & 35 Viet. 
 
 PAGB 
 
 ^ . 880, 920, f 21 
 s. 14 . . 898 
 
 c. 97, 83. 16, 17 
 
 c. 99 
 
 0. 12 
 
 o. 33 
 
 0. 41 
 
 c. 43 
 
 825 
 819 
 102 
 194 
 
 239, 940 
 . 239 
 
 8. 8 
 
 BS. 17, 19, 22, 23, 
 25—28, 29—36 
 45, 46, 47 . 240 
 
 PAGE 
 
 34 & 35 Vict. e. 43, s. 53 . . 239 
 
 8. 68 . . 767 
 
 c. 50, a. 10 . .• 659 
 
 c. 56 . . . 192 
 
 0. 78, B. 10 . . 840 
 
 s. 12 . . 488 
 
 0. 79 . . . 629 
 
 c. 95 171, 172, 194, 653 
 
 0. 105 .. . 466 
 
 c. 110,8.9 . . 390 
 
 u. 115, 8. 20 . . 226 
 
ADDENDA ET CORRIGENDA. 
 
 Page 4, note ()•), add " See Oullen v. Trimhle, L. E., 7 Q. B. 416." 
 
 Page 4, note (*), add " See Davies r. Solomon. L. R., 7 Q. B. 112." 
 
 Page 5, after line 21, add " But where the deifendant's servant, in breach of an Act of 
 Parliament (2 & 3 Viot. c. 47, s. 54), washed a carriage in a public street, and 
 allowed the waste water to run down a gutter towards a grating leading to a 
 sewer, but inconsequence of the grating being stopped up, without the know- 
 ledge of the defendant, the water flowed oyer the road and subsequently froze, 
 and the plaintiff's horse slipped upon the ice and injured himself, it was held 
 that this was a consequence too remote to be attributed to the wrongful act of 
 the defendant. Sharp t. Powell, L. E., 7 Exch. 253." 
 
 Page 13, Kne 11 from bottom, to word " market toUs " add as note " As to the distinc- 
 tion between market tolls and stallage, see Beg. v. Casswell, L. R., 7 Q. B. 
 328." 
 
 Page 13, note (m), after word " auctioneer " add " See also as to stock sales, Pearon y, 
 MitcheU, L. E., 7 Q. B. 690." 
 
 Page 15, note (y), to Moule v. Gairett add, " 7 JUd. 101," and dele " per Channell and 
 Pigott, B.B., diss. Cleasby, B." 
 
 Page 19, note (g). " The case of Burrows v. March Gas Company has been affirmed on 
 on appeal, L. E., 7 Exch. 96." 
 
 Page 25, note (a), add " See Bayley V. Manchester, Sheffield, and Live. Rail. Co., L E 
 7 C. P. 415." 
 
 Page 31, note (0, add " But see the late case of WeUs v. Abrahams, L. E., 7 Q. B. 654, 
 by which considerable doubt is thrown on the above position, and it seems pro- 
 bable that the only way of enforcing the suspension on the part of the defen- 
 dant, the felon, is by appUeation to the summary jurisdiction of the court." 
 
 Page 48, note (c), add "He Johnson's Patent, L. E., 4 P. 0. Ca. 75." 
 
 Page 49, note (c), add " But this section does not apply to a ease where the foreign 
 patent is taken out after the English patent. Winans' Patent, L. E. 4 
 •P.C. C. 93." 
 
 Page 55, note (i-), for " Marton " read " ManUm.'' 
 
 Page 56, line 5 from top add as note " See Murray v. Clayton, L. E., 7 Ch. App. 
 570." ' , 
 
 Page 69, line 7, after words "vis major " insert "Nor is the occupier of an upper floor 
 liable, without negligence, to the occupier of a lower for, the leakage of water 
 from a water-closet of which he has the exclusive use. Boss v. Pedden, L. E., 
 7 Q. B. 661." 
 
 Page 69, note (d), add " Smith v. Fletcher, L. E., 7 Exch. 305." 
 
 Page 91, after line 10, add "It has been recently held, however, that in case a canal 
 company refuse, after notice from the mine owner, to purchase the mines, and 
 the latter works his mines, not negligently, but with full knowledge that 
 the canal water will probable flood his mines, which accordingly happens, the 
 mine owner is not entitled to sue the canal company for a tort, although he 
 may be entitled to compensation under the statute. Dunn r. Birm. Carnal Co., 
 L. E., 7 Q. B. 244, diss. Hannen, J." 
 
 Page 102, after line 14, add " An immemorial custom to erect stalls upon the highway 
 at a fair for the sale of commodities, is good (Ehuood v. Bullock, 6 Q. B. 383) ; 
 but a statute sessions for the hiring of servants is not such a fair. Simpson v. 
 WeUs, L. R., 7 Q. B. 214. 
 Page 152, note (tt), add " Espley v. WilTces, L. E., 7 Exch. 298." 
 Page 160, note (it), add " Commissioners of Sewers v. Glasse, L. E., 7 Ch. App. 466." 
 Page 160, note (y), add " As to somewhat similar proceedings by the Crown, see Att.- 
 
 Oen. V. Barker, L. E., 7 Exch. 177." 
 Page 169, note (s), add "As to fencing disused mines, see 85 & 36 Vict. c. 76, ss. 41, 
 
 51 ; 0. 77, ss. 13, 23." - 
 Page 172, first line, to word " Highway " add as note " See Simpson v. Wdls, L. E., 
 
 7 Q. B. 214." 
 Page 188, after line 10, add "A fortiori, therefore, if he enters on the employment 
 without a full knowledge of the risk he runs. Britton v. Great West. Cotton Co., 
 L. E., 7 Exch. 130." 
 Page 191, note (re), add " See Baldwin v. CaseUa, L. K., 7 Exch. 326, poet; p. 212." 
 
XC ADDENDA ET COEEIGENDA. 
 
 Page 194, line 6, to worcl " provisions " add as note " See Norris ■?. Bcames, L. E., 7 
 Q. B. 537, as to nuisances arising from mines, and the smelting of ores and 
 minerals. The Act applies only to such nuisances as are injurious to health, 
 such as slaughter-houses, accumulation of refuse, &c., and not to mere 
 nuisances of disoomfovt,- such as the drip of water through a railway bridge 
 on to a highway. Cfreat West. Rail. v. Bishop, L. K., 7 CJ. B. 550." 
 
 Page 194, note (c), for "Brown v. RmseU " i-ead " Brown v. BusseU." 
 
 Page 194, •^ote (e), add, after Bird v. Mwes, "Barnes v. Akroyd, L. R, 7 Q. B. 474." 
 
 Page 195, note, (m), add " Cooh v. Montagu, L'. E., 7 Q. B. 418." 
 
 Page 212, last line, add " It has been held also that if the owner of a dog appoints a 
 servant to keep it, the servant's knowledge of the dog's ferocity is the know- 
 ledge of the master. Baldwin v. OaseUa, L. E., 7 Exoh. 325." 
 
 Page 219, note (*), add "See 35 & 36 Viet. o. 74, against the adulteration of foodj 
 c. 94, ss. 19 — ^22, against tlie adulteration of liquor." 
 
 Page 219, note (t), add" See 6 & 7 Wm. IV. c. 37, s. 8, Core v. James, L. E., 7 Q. B. 
 135." 
 
 Page 221, note (i), add "And see Pound v. Plumstead Board of Worhs, L. E., 7 Q. B. 
 183." 
 
 Page 229, note (j), add "who is 'owner' under the Nuisances Eemoval Act, 1855 (18 
 
 6 19 Vict. 0. 121), s. 2, see Cook v. Montagu, L. E., 7 Q.B. 418." 
 Page 236, note (f), add "ffigginbotham v. ffawkins, L. E., 7 Oh. App. 676." 
 Page 246, note (g), add "ffoUamd v.' Hodgson, L. E., 7 C. P. 328." 
 
 Page 269, note (s), add " And see Pound v. Plumstead Board of Worlcs, L. E., 6 Q. B. 
 183." 
 
 Page 282, after line 22, add " If a private individual is the owner of the soil forming 
 the bed of a navigable lake, he would be entitled to sue any one who erected a 
 pier running into the lake, or to knock down the pier, but so long as it remains, 
 the owners of land abutting on the lake, have a right to use it for the purpose 
 of embarking and disembarking on the lake. Marshall v. UUeswater Steam 
 Namgation Co., L. K., 7 Q. B. 166." 
 
 Page 283, after line 25, add "Nor does the same presumption, it seems, apply to 
 houses in a street abutting upon the highway. BecJeett v. Leeds (Corporation of) 
 h. E., 7 Ch. App. 421." 
 
 Page 285, after line 8, add "They will, however, be liable for accidents docurrmg 
 from non-repair of the towing path, if they have power under their statutes 
 to take or hire it from the owner, and they do so, although by parol only, and 
 charge a toll for the use of the towing path. Winch v. Thames Conservators, 
 •L. E., 7 0. P. 458." 
 
 Page 296, line 16, after the word "Act," insert "or of apportion of a house projecting 
 beyond the general line of the street under the Metropolis Local Management 
 Amendment Act (25 & 26 Vict. o. 102) ss. 75 and 107. Brutton v. St. George's, 
 . Hanover Squwre {Vestry of), L. E,, 13 Eq. Ca. 339." 
 
 Page 323, note (m), add " Whether an agent who had merely negotia;ted the sale to a 
 third person would also be liable, gumre, see Fowler v. Hollim, L. E., 7 Q. B. 
 616." 
 
 Page 327, note (r), add "Batut v. HaHley, L. E., 7 Q. B. 594." 
 
 Page 330, note (i), add "But he "would, it seems, be entitled to an action of account 
 under the 4 Anne, .c. 16, s. 27. Jacobs v. Seward, L. E., 5 Engl. & Ir. App. 
 464." 
 
 Page 345, line 6, to word " surrendered," add as note, "But this does not apply to 
 rent due between the date of the adjudication and the disclaimer by the trustee 
 in bankruptcy ; and it seems that as between the lessor and lessee, the latter is 
 still liable for the rent. Smyth v. North, L. E., 7 Exch. 242." 
 
 Page 346, note (u), add '^See Bx parte Hawker, L. B., 7 Ch. App. 214." , 
 
 Page' 346. note (u), add " either in the case of a trader or non-trader. Be Wood, L. E., 
 
 7 Ch. App. 302." ■ 
 
 Page 347, note (z), add " But under certain circumstances it may be. Bx parte Fisher, 
 h. E., 7 Oh. App. 636." 
 
 Page 348, after line S, word "creditor," add|"If the goods remain unsold in the hands 
 of the sheriff at the time of the appointment of the trustee in bankruptcy he is 
 entitled to them against the execution creditor. Ex pa/rte Bayner, L. B., 7 
 Ch. App. 325;" 
 
 Page 348, after line 17, word "seizure," add "But the goods must have been seized 
 before the act of bankruptcy, for the mere delivery of a writ of fi. fa. to the 
 sheriff before the act of bankruptcy is not sufficient as against a trustee in 
 bankruptcy appointed subsequently. Ex pa/rte Williams, L. R., 7 Ch. App. 
 
 Page 348, note (h), add "Ex parte Bailey, L. E., 13 Eq. Ca. 314." 
 Page 348, note (h), to " Slater v. Binder," add " 7 Ihid. 95." 
 
 Page 371, after line 13, add " But the Gazette is not evidence whether the bankrupt 
 was a trader or not at the time of adjudication ; and the trustee, therefore, in 
 
ADDENDA ET COEEIGENDA. XCX 
 
 a ease of disputed title to goods between him and the execution creditor is not 
 concluded by the Gazette from showing that the bankrupt was in fact a trader 
 at the date of adjudication, although the adjudication was made against him as 
 a non-trader. Bevell t. Blahe, L. E., 7 0. P. 301." ' ■ 
 
 Page 378, note (6), for "Dew," read "Drew." 
 
 Page 383, line 21, dele words "it would seem that." 
 
 Page 383, note (u), " The ease of Cochle t. Land, and South-East. Rwy. has been 
 affirmed on appeal, L. R., 7 C. P. 321." 
 
 Page 387, after line 8 JErom bottom, add "A cabdriyer employed on the usual terms of 
 paying so much a day for his cab, and keeping th\3 rest himself, is, as between 
 the cab-proprietor and the public, the servant of the proprietor, and such pro- 
 prietor is therefore .liable for his negligence. Powles r. Hider, 6 E. & B. 207 ; 
 25 L. Ji, Q. B. 331. But, as between the cabdriver and oabmaster, the relation 
 is that of bailor and bailee, and as the cabraaster undertakes to supply a horse 
 reasonably fit to drive, he will be responsible to the driver for supplying an 
 unruly horse which runs away and upsets and injures the driver. Fowler v. 
 Lock, L. K., 7 C. P. 272;^' • 
 
 Page 390, after line 17, add "A shipowner is not liable for a collision arising from an 
 inevitable accident, i, e., an accident which could not have been prevented hy 
 the exercise of ordinary care, caution, and maritime skUl. The Marpesia, L. B., 
 i P. 0. 212." 
 
 Page 393, note (m), add " The John Fenwkh, L. E., 3 Adm. & Eocl. 500." 
 
 Page 395, line 3 from bottom, add "And it has been lately held, that where in such a 
 case the owners of the sunken ship have, in a suit for the collision in the Court 
 of Admiralty, paid into Court 15?.. per ton, on the registered tonnage of the 
 ship under the 17 & 18 Vict. c. 104, s. 54, the ship, nevertheless, cannot be 
 considered as ' under arrest j'.the Court of Admiralty, therefore, has no juris- 
 diction to stop a suit commenced in the Common Law Courts, and if it 
 attempts to do so, the plaintiff wEl be entitled to a writ of prohibition. James 
 V. South- West. Rwy., L. R., 7 Exch. 187, 287." 
 
 Page 396, note (d), " The case of Notara v. Henderson has been affirmed on appeal, 
 L. E,, 7 Q. B. 225." 
 
 Page 397, note Qc), " The case of Bomney Marsh v. Trinity House, has been affirmed 
 on appeal, L. E., 7 Exch. 24^." 
 
 Page 403, after line 14, add " and a patent agent for negligence in not being aware of 
 a legal decision which made an important change in the practice of obtaining 
 patents. Lee v. Walker, L. E., 7 C. P. 121." -, 
 
 Page 403, note {g), after words " 4 Ch. App., 43;" add "As to their duty to see that 
 a charge on the property of a company is duly registered, as directed by sect. 
 43 of the Companies Act, see Ex parte Talpy and Ohofplin, L. E., 7 Ch. App. 
 289." 
 
 Page 405, line 8, to words " practice of his court," add as note, " See Lee v. Walker, 
 ante, p. 403." 
 
 Page 405, note {y) for " Knights '' read " Knight." 
 
 Page 405, note (2), add "As to his duty to get the best price for properly intrusted 
 to him for sale, see Morgan v. Steble, L. E., 7 Q. B. 611." 
 
 Page 408, line 10, after word " partners," add " nor for mere imprudence, not amount- 
 ing to crassa negligentia, fraud, or malfeasance. Overend Sg Go. v. Qibb, L. E.,, 
 5 Engl. & Ir. App. 480." 
 
 Page 419, line 10 from top, after words, " by the defendant," add " Where a horse, in 
 course of carriage by railway, got injured, apparently by getting down on the 
 floor of the horse-box, and it was proved, on the one hand, that the train pro- 
 ceeded on its journey without distiu:bance or iuteiTuption ; and, on the other, 
 that the" horse was q^uiet and accustomed to travel by rail, it was held that the 
 railway company were not liable, for that the proper inference to be drawn from 
 such facts was that the injury had resulted from the 'proper vice '> of the 
 horse. KendcU r. S. W.'Swy., L. E., 7 Exch. 273, diss. Pigott, B." 
 
 Page 439, note (m), " The case of The Two EUens has been affirmed on appeal, 
 L. E., 4 P. C. C, I6I:" 
 
 Page 446, note (q), after words " fie Leader, 2 Ibid., 314," add "Mercer v. Graves, 
 L. K., 7 Q. B. 499." 
 
 Pao-e 446, note (r),.after " 15 Sim. 191," add " Robins v. Goldingham, L. E., 13 Eq. 
 Ca. 440." 
 
 Page 447, line 9, after word "recovered," add "or preserved: see Bailey. Eatle, 
 L. E., 13 Bq. Ca. 497 ; The Heimnch, L. E., 3 Adm. & Eccl. 505." 
 
 Page 447, note (c), add "-Be National Assurance amd Investment Assoaiation, L. E., 7 
 Ch. App. 221." 
 
 Page 447, note (/), add "See Tlie JTeinrich, L. E., 3 Adm. & Eccl. 505." 
 
 Page 460, line 20 from top, to words " possession of them," add as note, " see Latter v. 
 White, L. E., 5 Engl. & Ir. App. 578." 
 
 Page 468, after line 7, add " But a barge owner is, although he does not ply between 
 
XCll ADDENDA ET COKRIGENDA. 
 
 any fixed termini and only lets his barges for a single voyage to one person at a 
 time, if he lets out his Tessels for the conveyance of the goods of any person 
 who applies to him. Liver Alkali Co.-y. Johnson, L. R., 7 E£ch. 267." 
 
 Page 502, note (z), add " ThrefcM v. Borwich, L. R, 7 Q. B. 711." 
 
 Page 524, note [z), add " see CooTe v. Guei-ra, L. K., 7 C. P. 132." 
 
 Page 527, note (s), add " HoUcmd v. Hodgson, L. E,, 7 C. P. 328." 
 
 Page 530, after 2nd line, add " By 35 & 36 Vict. c. 50, the roUing stock of a railway 
 company at any works to which there is a railway siding, which rolling stock 
 is not the property of the tenant of such works, is exempt from distress, if 
 marked with the name or brand, &c., of the actual' owner." 
 
 Page 582,- after line 13, add " A clergyman engaged in collecting the offertory while 
 another clergyman is reading the offertory sentences, is not celebrating' divine 
 serrice, within the meaning of the above Act ; Cope v. Barber, L. E., 7 0. P. 
 393, though it would seem that for the churchwardens, or other persons to 
 interfere with him while so doing, xnight render them guilty «f the offence of 
 brawling within the first part of the section. lUd." 
 
 Page 636, note (/), " Pappa v. Jiose, has been affirmed on appeal, L, E., 7 C. P. 
 525." 
 
 Page 674, note (q), for " MwrUss,'' read " Mwrlep." 
 
 Page 699, line 8, to words "s. 24," add as note " White v. Feast, L. R., 7 Q. B. 353." 
 
 Page 721, note (y), for " Cocker," read " CoJcer." 
 
 Page 754, note (s), add " or if a waterway has been stopped up, M'Carthy v. Met. Board, 
 L. E., 7 C. P. 508:" 
 
 Page 770, note (m), add "AucUand (Lord) v. Westminster Local Board, L. E. 7 Ch. 
 App. 597." 
 
 Page 787, note (I), for " WiU," read " Witt." 
 
 Page 792, note (c), add " see SUele v. Brannan, L. E., 7 C. P. 261." 
 
 Page 820, note (g), add " see Rainy v. Bravo, infra." 
 
 Page 820, note (*), add " see Bainy v. Bravo, L. E., 4 P. 0. 287." 
 
 Page 838, note (t), for " Sarmar," read " Hwmar." 
 
 Page 840, note {g), for " Asheton," read " Ashton." 
 
 Page 874, last line, to words "using it," add as note, " Ford v. Foster, L. E., 7 Ch. 
 App. 611." 
 
 Page 876, first line, after word "person," add " or at a particular place, Badde v. 
 Normam, L. E., 14 Eq. Ca., 348." 
 
 Page 878, note (a;), add " semble, also, that it would be a good defence to an action 
 for the imitation of the mark. Ford v. Foster, L. E., 7 Ch. App. 611." 
 
 Page 873, note (y), add "see Ford v. Foster, L. E.; 7 Ch. App. 611." 
 
 Page 926, note (^),'for " Morray," read " Moray." 
 
 Page 928, note (g), for " Clarhe," read " Clarh." 
 
 Page 954, note (a;), add " Ex parte Michael, L. E., 7 Q. B. 658." 
 
 Page 974, note (i), for « Gauntlett," read " Gantlelt." 
 
 Page 981, note {d), for " Beddimgton," read " Bebbington." 
 
 Page 1030, note («), add "see Pickering y. Stephenson, L. E., 14 Eq. Ca. 322. 
 
 Page 1033, note (r), for « Cotchin," read " CotcMng." 
 
THE LAW OF TORTS. 
 
 CHAPTEE I. 
 
 THE LAW OF TORTS. 
 
 Section I. — Of actionaUe wrongs, and in- 
 juries that are not actionable. — Of the 
 conjunction of damage and wrong ne- 
 cessary to constitute a tort — ^Damage 
 without wrong— Damage too remote 
 to give rise to a cause of action — 
 Damage sufiSciently connected with 
 the wrong — Actual pecuniary damage 
 not necessary — Injury to a right — Pro- 
 curement of the Tiolation of a right — 
 General legal rights — Injuries to pro- 
 perty — Literary and artistic property 
 — Interference by force or fraud with 
 the free exercise of another's trade or 
 occupation or means of livelihood — 
 Fair competition — Disturbance of 
 ferries and markets — Torts founded on 
 contract and breach of duty — ^Duties 
 of public officers — Consignors and 
 bailors of chattels — Torts founded on 
 negligence — Contributory negligence 
 on the part of the plaintiff— Liability 
 in respect of the remote ulterior and 
 unusual consequences of a negligent 
 act — Liability of masters for negli- 
 gence of servants — Indemnification of 
 masters by servants — ^Fraud and false- 
 hood creating a cause of action — Dis- 
 obedience of j udicial decrees — ^Malicious 
 injuries — Malicious procurement of loss 
 
 or damage to another — Abuse of au- 
 thority by governors and naval and 
 military officers — Torts committed by 
 British subjects abroad — Suspension of 
 remedy by action when the tort amounts 
 to a felony — Public and private wrongs 
 — Maxim of no wrong without a re- 
 medy — ^Waiver of tort. 
 Section II. — Of rights, duties, and obliga- 
 tions created by by-law and by statyie. 
 — By-laws imposing penalties for the 
 suppression of torts — By-laws of muni- 
 cipal corporations — Bathing by-laws — 
 By-laws of commissioners, local boards, 
 and public eom'panies— Enforcement of 
 statutory duties and obligations — Im- 
 position of' a penalty as a cumiilative, 
 exclusive, or alternative remedy for 
 the protection of a right or the sup- 
 pression of a wrong — Infringement of 
 statutory copyright — Penalties and 
 actions — Dramatic literary property 
 and musical compositions — Sculpture 
 Copyright Acts — Piracy of useful and 
 ornamental designs, prints, engravings, 
 paintings, drawings, and photographs 
 — ^Piracy of trade-marks— Penalties for 
 the commission of nuisances — Patent 
 right and its infringement — Statutory 
 benefits and burthens. 
 
 SECTION I. 
 
 OF ACTIONABLE WEONGS, AND INJURIES THAT ARE NOT ACTIONABLE. 
 
 Of the conjunction of damage and wrong necessary to create a Tort. 
 — ^To constitute a Tokt, two things must concur, actual or legal 
 damage to the plaintiff^ and a wrongful act committed by the de- 
 fendant (a). 
 
 (a) Bayley, J., Hex v. Pagham, Commissioners, <Ssc., 8 B. ^ C, 362. 
 
2 ACTIONABLE WKONGS, [CHAP. I. 
 
 Ex damno gine iry'v/rid non oritur actio — is a very ancient rule or 
 maxim, of the common law. " There must," observes Hohart, C J., 
 " be a damage either already fallen upon the party or inevitable ; 
 there must also be a thing done amiss" (6). " By injuria" observes 
 WiUes, C. J., " is meant a tortious act ; it need not be wilful and 
 malicious, for though it be accidental, an action will lie " (c). 
 
 Damage and wrong — J)angerous things set in motion. — If the 
 damage done is the immediate result of force exercised by the de- 
 fendant, in a place where the probable and natural result of mis- 
 directed force would be to cause injury to others, the defendant 
 will be responsible for the damage done, though it happen acci- 
 dentally, or by misfortune (d), unless the force was used strictly in 
 self-defence. Thus, where one shooting at butts for a trial of skiU 
 with the bow and arrow accidentally wounded a man, it was holden 
 that he was responsible in damages, though he was doing an act 
 lawful in itself, and had no unlawful purpose in view (e). And 
 the same was holden where a like unfortunate accident happened 
 whilst persons were lawfully exercising themselves in arms (/). 
 
 "If I put in motion a dangerous thing, as, if I let loose a 
 dangerous animal, and leave to hazard what may happen, and mis- 
 chief ensue to any person, I am answerable in an action of tres- 
 pass " (g). " If I turn suddenly round and knock a man down 
 without intending it, I am responsible for the injury I do him " (h). 
 
 Damage without wrorhg. — A man m.ay, however, sustain grievous 
 damage at the hands of another ; and yet, if it be the result of in- 
 evitable accident or a lawful act, done in a lawful manner, without 
 any carelessness or negligence, there is no legal injury, and no tort 
 giving rise to an action for damages. An act of force, for example, 
 done in necessary self-defence, causing injury to an innocent by- 
 stander, is damnum sine injurid, " for no man does wrong, or con- 
 tracts guilt in defending himself against an aggressor " (*). Thus, 
 if a lighted firework is thrown into a coach full of company, and is 
 flung out again in necessary self-defence, and falls against and 
 burns a by-stander, or explodes in his face and blinds him, the 
 person throwing out the firework is not answerable for the damage, 
 as his act was inevitable, and he has done no wrong (j). The 
 'wrong-doer is the party who originally threw the burning material 
 into the coach; and as against him there is that conjimction of 
 damage and wrong which constitute a tort, and will support an 
 action {k). 
 
 (J) Waierer t. Freeman, Hob. 266. (jr) Ld. Ellenborongli, Leame v. Bray, 
 
 (c) Wmsmorey.6reenhank,'Wi\\es, 577. 3 East, 595. 
 
 (d) Dickenson t. Waison. 2 Jopee, 205. (Ji) Lawrence, J., ib. 596 ; post, ek. 8, 
 
 (i) De Grey, C.J., 3 Wils. 412. 
 
 (]) Gould, J., 2 W. Bl. 898. 
 
 (h) Scott V. Shepherd, 2 W. Bl. 892. 
 
 ie)21Heu.7,28a. lGl,i, 1^/ s. 1. 
 
 (/) Weaver v. Ward, HoETlSi ; post, (i) De Grey, C.J., 3 Wils. 412. 
 
 ch. 8, s. 1. 0) Gould, J., 2 W. Bl. 898. 
 
SECT. 1.] AND INJURIES NOT ACTIONABLE. 3 
 
 If a landowner whose land is exposed to inroads of the sea, or to 
 inundation from the overflowng of an adjoining creek or river, 
 erects sea-walls, groins, or dams, for the protection of his land, and 
 by so doing causes the tide, the current, or the waves to flow against 
 the land of his neighbour and wash it away, or cover it with water, 
 the landowner so causing an injury to his neighbour is not respon- 
 sible in damages to the latter, as he has done no Avrong, having 
 acted in self-defence, and having a right to protect his land and his 
 crops from inundation Q). But if he runs out a wharf or embank- 
 ment into the stream for the mere purpose of acquiring additional 
 land, and improving the value of his property, and encroaches upon 
 the waterway of a navigable river, and thereby gives a new direc- 
 tion to the current, and causes his neighbour's land to be washed 
 away, he commits a tort or wrong, and is responsible for all its in- 
 jurious consequences ; for " if an individual, for his own benefit, 
 makes an improvement on his own land, and thereby unwittingly 
 injures his neighbour, he is answerable " (m). 
 
 If a man sells a house commanding a fine sea view, or a lovely 
 prospect, and then builds on his own adjoining land, so as to shut 
 out the sea view or the prospect, and thereby greatly diminishes the 
 marketable value of the house he has just sold, a great damage is 
 done to the purchaser thereof ; but there is no tort or wrong, as the 
 vendor has done nothing which restrains him from interfering 
 with his neighbour's prospect (n). So the building of a gasometer, 
 which obstructs the view by the public of the plaintiff's place 
 of business, is not an injury for which an injunction can be main- 
 tained (o). 
 
 The simple sale of horses diseased with glanders, or of horned 
 cattle infected with the lung disease, or sheep infected with the 
 scab, has been held not to be unlawful ; and, therefore, if a man 
 buys horses, cattle, or sheep so infected, and mixes them with his 
 own flocks and herds, and sustains grievous damage from the spread 
 of the disease, he has no remedy; although the vendor knew at the 
 time of the sale that the animals had the disease upon them, and 
 the purchaser was wholly ignorant of it. The maxim of caveat 
 emptor has been applied to such a case ; and the purchaser, it is 
 said, ought to have had a warranty {p). The damage, however, 
 resulting from the spread of infectious and contagious disorders 
 amongst sheep and cattle is so serious, that every vendor who sells 
 an animal, knowing it to be labouring under a highly contagious or 
 infectious disorder, ought to be held responsible for fraudulent con- 
 
 (t) Bex V. Pagham Com., &e., 8 B. & 0. v. Eichavdson, 5 Mod. 65. Att.-Gen. t. 
 360. Doughty, 2 Ves. senr. 453. 
 
 (m) Gribbs, C. J., 6 Taunt. 44 ; vast, (o) By.tt v. Imperial Gas Co., L. E., 
 
 eh. 4. 2Ch.App. 158. 
 
 '{n) Aldred's case, 9 Co. 58 b. Knmvks (p) BiU v. Balls, 2 H. & N. 302. 
 
 B 2 
 
4 ACTIONABLE WEONGS, [CHAP. I. 
 
 cealment, if lie fails to disclose the fact at the time lie makes the 
 bargain (g). 
 
 By the Contagious Diseases (Animals) Act, 1869 (32 & 33 Vict. 
 c. 70); it is provided (ss. 6 & 57) that if any person exposes, either 
 in a puhlic market or private sale-yard, or places in a lair adjacent 
 to a market or fair, or sends by railway, canal, or coasting vessel, or 
 drives along a highway, any cattle, sheep, goats, or pigs, affected with 
 a contagious or infectious disease, he is liable to a penalty (s. 103) ; 
 and, by sect. 58, that any person keeping on any common or unin- 
 closed land, or in any field insufficiently fenced, or on the side of a 
 highway, any animal so affected, is liable to a similar penalty, unless, 
 in either case, he did not, and could not, reasonably have known 
 that the animals were diseased (r). 
 
 Wrong without damage. — There may, on the other hand, be a 
 wrong done to another, but if it has not caused what the law terms 
 actual legal damage to the plaintiif, there is no tort in respect of 
 which ah action is maintainable. Thus, in cases of slander by word 
 of mouth, where the words do not convey any imputation of an in- 
 dictable offence, there -is no cause of action in respect of them, un- 
 less the injured party has sustained some pecuniary loss, or has 
 been deprived of some gainful occupation and employment, or has 
 been injured in his trade, occupation, or profession, or means of 
 livelihood, or has lost a marriage by reason of the slander (s). An 
 imputation, for example, by words, however gross, and on an occa- 
 sion however public, upon the chastity of a modest matron or a pure 
 virgin is not actionable, without proof that it has actually produced 
 special temporal damage to her {t) ; neither is it actionable to call 
 a man a swindler or a cheat, a blackguard or a rogue, or to say that 
 he is a low fellow, a disgrace to the town, and unfit for decent 
 society, unless it can be proved that actual legal damage has re- 
 sulted to the plaintiff from the slander (w). 
 
 If instructions for an action are given, and through the mistake 
 of the attorney a wrong person is sued, and the latter fails to 
 appear and plead, and judgment goes against him by default, and 
 he is imprisoned, or his goods are seized in execution, this is " dam- 
 num absque injuria,," and no action is maintainable. If he defends 
 the action, and incurs costs which he cannot recover, he is in no 
 better situation (x). 
 
 (q) Post, Fraud & Falsehood. Blake- (t) Ld. Wensleydale, lynch v. Knight, 
 
 mm-e t. Brist. S{ Ex. Sail. Co., 8 Ell. & 8 Jur., N. S. (H. L.) 724; 9 H. of L. 
 
 BI. 1051. Aiiderson v. BucUon, 1 Str. Ca. 577, 5". C. WUby v. Slston, 8 C. B. 
 
 192. 142. " , ' 
 
 (r) Tery extensive powers are also (w)Scmler.Jardine,Mopwoodv. Thorn, 
 
 given by the Act to the Privy Council, Bamett v. Allen, post, ch. 17, s. 2. 
 as to the importation, &e., of foreign (x) Eolfe, B., Dames v. Jenkins, 11 M. 
 
 animals (ss. 16-^21, and schedule i). & W. 7S5. 
 
 (s) Post, ch. 17, fl. 2. 
 
SECT, l.j AND INJUEIES NOT ACTIONABLE. 5 
 
 Damage too remote to give rise to a cause of action. — If the wrong 
 and the legal damage are not known by common experience to be 
 usually in sequence, and the damage does not, according to the 
 ordinary course of events, foUow from the wrong, the wrong and 
 the damage are not sufficiently conjoined or " concatenated as cause 
 and effect to support an action " (j/). Thus, a defendant has been 
 held not to be liable either for the wrongful act of a third party, or 
 the arbitrary choice of a fourth party, detrimental to the plaintiff, 
 but not proximately caused by the defendant's wrong (2). 
 
 Where the manager of a theatre brought an action against the 
 defendant for a libel on an opera-singer, who had been engaged by 
 him to sing at his theatre, and who had been deterred from singing 
 by reason of the publication of the libel, whereby the plaintiff lost 
 the benefit of her services, it was held that the damage wag too 
 remote, and was not recoverable by the plaintiff, for the opera- 
 singer was deterred from singing, not directly in consequence of 
 anything done by the defendant, but in consequence of her 
 fear that what he did might induce somebody else to assault and 
 ill-treat her (a). 
 
 If the wrong would not have been followed by the damage, if 
 other circumstances had not intervened, for which circumstances 
 the defendant is not responsible, the damage is not the proximate 
 result of the wrong, and is not sufficiently " concatenated " there- 
 with (6). Thus, in actions for slander, where a defendant is proved 
 to have uttered slanderous words in respect of the plaintiff, not 
 imputing to him any indictable offence, and creating a cause of 
 action only in case the utterance of the slander has caused actual 
 legal damage to the plaintiff, and no such damage has accrued to 
 the plaintiff directly from the utterance of the words, and they 
 would have failed to produce any injurious consequences to the 
 plaintiff if they had not been repeated by another person, the injury 
 resulting from the intervention of that other person cannot be 
 visited upon the defendant (c). 
 
 Damage, though reraote, suffleiently coiiTiected with the wrong. — 
 The general rule of law, however, is, that whoever does an illegal 
 or wrongful act is answerable for all the consequences that ensue in 
 the ordinary and natural course of events, though those conse- 
 quences be immediately and directly brought about by the inter- 
 vening agency of others, provided the intervening agents were set 
 in motion by the primary wrong-doer, or provided their acts, 
 causing the damage, were the necessary or legal and natural con- 
 
 (v) Ld Campbell, G'er/jarc? T. JSato, (6) iToei/ v. AZton, 11 C.B.,]Sr.S. 146 ; 
 
 " Ell & Bl 490. ■ 31 Law J., (?. P. 105 ; post, p. 18. 
 
 " U) Vicars T. Wilcox, post, ch. 17. (c) Waird r. Weeks, Parkins v. Scott, 
 
 {a) AsUey y. Hamson, 1 Eep. 49. post, ch. 17, s. 2. 
 
6 ACTIONABLE WRONGS, [CHAP. I. 
 
 sequence of the original wrongful act. Thus, where the defendant 
 threw a lighted squib into the market-house, in a market-place, 
 during a fair, and the squib fell upon a ginger-bread stall, and the 
 stall-keeper, to protect himself and his wares, threw the squib 
 across the market-house, where it fell upon another stall, and was 
 again thrown off and exploded near the plaintiff's eye and blinded 
 him, it was held that the original thrower was responsible in 
 damages for the injury sustained by the plaintiff, through the in- 
 tervening agency of the others. " All the injury," observes De 
 Crrey, C.J., "was done by the first act of the defendant. That, 
 and aU' the intervening acts of throwing, must be considered as one 
 single act. It is the same as if a cracker had been flung, which 
 had bounded and rebounded again and again before it had struck 
 out the plaintiff's eye " {d). So, where the defendant, having had 
 a quarrel with a boy in the street, took up a pickaxe, and pursued 
 the boy, and the latter ran for safety into a wine-shop and upset a 
 cask of wine, it was held that the defendant, the pursuer of the 
 boy, was responsible in damages for the loss of the wine (e). "If I 
 ride upon a horse, and J. S. whips the horse so that he runs away 
 with me, and runs over any other person, he who whipped the 
 horse is guilty of the assault and battery, and not I " (J). 
 
 Wherever a party is guilty of misconduct in leaving anjrthing 
 dangerous in a place, where he must know it to be extremely pro- 
 bable that some other person will unjustifiably set it in motion to 
 the injury of a third person, and that injury is brought about, the 
 sufferer may have redress by action against both the wrong-doers {ff), 
 unless he has himself been a co-operative cause of the injury of 
 which he complains, under circumstances which deprive him of a 
 claim to legal redress {h). 
 
 If the natural result of a wrongful act committed by a defendant 
 has been to plunge the plaintiff into a chancery suit, and thereby to 
 cause him to incur costs and expenses, whatever may be the event 
 of the suit, there is that conjunction of wrong and damage which 
 win give the plaintiff a good cause of action (i). If a seaman, or a 
 passenger on board ship, engages in acts of smuggling, and thereby 
 causes the vessel to be condemned and forfeited, the shipowner is 
 entitled to recover the value of the vessel from the wrong-doer who 
 has caused the loss ; and it is, no answer to the action to show 
 that the plaintiffs servants on board participated in the illegal 
 transaction Qc). 
 
 (d) Scott V. Shepherd, S Wils. 403 ; 2 (g) lUidge r. Ooodmn, 5 0. & P. 190. 
 W. Bl. 892. Lynch T. Nwrdm, 1 Q. B. 29. 
 
 (e) Vandeiiburgh v. Truax, 4 Denio, (h) Post, pp. 18, 19, 
 
 U. S. E. 464. (i) Ditam y. Famcus, 30 Law J., Q, B. 
 
 (/) Gibbons t. Pepper; 1 JA. Kaym. 137. 
 38. (i) Slewitt V. Hia, 13 East 14. 
 
EOT. ].J AND INJURIES NOT ACTIONABLE. 7 
 
 It is not necessary to show that actual pecuniary damage has heen 
 sustained in order to establish that conjunction of damage and 
 wrong which is necessary to create a tort ; for a party may be 
 legally daonnified although he has sustained no pecuniary loss. 
 " The damage/' observes Lord Holt, "is not merely pecuniary, for 
 if a man gets a cuff on the ear from another, though it cost him 
 nothing, no, not so much as a little diachylon, yet he shall have his 
 action, for it is a personal damage." So, a man shall have an 
 action against another for riding over his ground, though it do him 
 no pecuniary injury, for it is an invasion of his property, and the 
 other had no right to come there (J) ; and if the trespasser wUfuUy 
 perseveres in trespassing after being warned off, exemplary damages 
 win be recovered (m). 
 
 A landowner who starts a pheasant on his own land, and shoots 
 the bird whilst it is flying over the adjoining land of his neighbour 
 commits a trespass if he goes on such adjoining land to pick it up ; 
 and if he carries the dead bird away with him, he. would now pro- 
 bably be held guilty of another tort, and liable to an action for 
 the conversion to his own use of the dead^, bird as well as for the 
 original trespass (n). 
 
 Every unauthorised interference by one man with the goods and 
 chattels and personal property of another constitutes a tort, and gives 
 rise to a cause of action, although no pecuniary damage may be sus- 
 tained (o). If a man, without having any legal authority to excuse 
 or justify the act, writes any remarks or observations upon a cab- 
 driver's licence, or upon another man's certificate of character or 
 good conduct, he is guilty of a tort, and is responsible in damages, 
 although no pecuniary loss has been incurred (p). 
 
 Damages are recoverable from a person who takes up tombstones 
 in a churchyard, and defaces the inscriptions, for although the free- 
 hold of the churchyard is in the parson, the property in the tomb- 
 stones remains in the persons who erect them (q). 
 
 Every injury to a right imports a damage, though it does not cost 
 the party one farthing (r), for wherever the plaintiff -establishes 
 some legal right or title in himself whichhas been invaded, weakened, 
 or destroyed by the unlawful or malicious act of the defendant, there 
 is a wrong and damage in law resulting therefrom, in respect of 
 
 (0 Holt, C.J., Ashby v. WhUe, 2 Ld. (o) Post, oL 7, s. 1. 
 
 Eaym. 955. Sea/rs v. Lyons, 2 Stark. 318 
 post, ch. 6. 
 
 («i) Merest v. Ewmey, 5 Taunt, 441 
 post, eh. 6, s. 3 ; ch. 22, s. 1, Damages 
 
 (n) Osbond v. Meadows, 12 C. B., IS 
 S. 10 ; 31 Law J., C. P. 281 ; M. C. 238 
 
 (p) Rogers v. Maemmwra, 14 C. B. 37 ; 
 23 Law J., 0. P. 1. 
 
 (5) Spooner v. Brewster, 3 Bing. 139. 
 Frances v. Ley, Cro. Jao. 367. As to 
 tombstones in a private cemetery, see 
 Ashhy V. Harris, L. R., 3 0. P. 623. 
 
 Blades v. Higgs, 34 L. J., C. P. 286. See (r) Bonomi v. Bachhouse, Ell. Bl. & 
 
 post, ch. 7, s. 3. KeriAion v. HwH, 34 Law Ell. 657. Holt, C.J., AsMy t. ^'^'■*' 
 J., M. 0. 87. 2 Ld. Raym. 964. 
 
8 ACTIONABLE WRONGS, [CHAP. I. 
 
 ■wMcli an action is maintainable for pecuniary compensation, though 
 no actual pteuniary loss can he proved (s). 
 
 Where a man is entitled to have a stream of water flowing through 
 his land, he may maintain an action for substantial damages for 
 the diversion of the water, though he has not used, and does not 
 want to use, the water (t). So where a tenant makes material altera- 
 tions in property demised to him, by opening new doors, putting 
 up new buildings, taking down partitions, or changing the form and 
 appearance of a house without the consent of the landlord, he is res- 
 ponsible in damages for infringing upon the proprietary rights of 
 the latter, although the premises may be unproved and rendered 
 more valuable by the alterations (u). 
 
 Every invasion of the plaintiff's right by the fraudulent act of the 
 defendant entitles the plaintiff to some damages. Thus, where an 
 inventor or manufacturer adopts a particular trade-mark, and the 
 defendant imitates it and uses it for the purpose of palming off his 
 own goods as the goods of the plaintiff, the plaintiff is entitled to 
 nominal damages at aU events, as his right has been invaded, 
 although no specific damage be proved (v). And there is nothing 
 to prevent the jury from giving more than nominal damages (w). 
 But upon an injunction in equity to restrain the infringement of the 
 plaintiff's trade-mark, some evidence of damage must be given, and 
 proof of the sale by the defendant of an inferior article at a different 
 price is not such evidence (x). Every infringement of a right ex 
 contractu also creates a claim to damages. Therefore, when one 
 person maliciously procures or persuades another to break a contract, 
 or interferes between an employer and workman to prevent the 
 latter from completing work he has undertaken to perform, or pro- 
 cures the non-delivery of goods according to contract (y), or de- 
 prives a woman of her marriage by false representations, substantial 
 damages are recoverable (z). 
 
 A refusal by a banker to pay the order or draft of his customer, 
 he having at the time in his hands sufficient funds of the customer 
 for the purpose, is a wrongful act, injurious to the credit of the cus- 
 tomer, entitling him to substantial damages, although no actual 
 damage can be proved at the trial (a). 
 
 The procwrement of the violation of a right creates a cause of 
 action in all instances where the violation is an actionable wrong — 
 
 (s) JSmbreyv. Owen, 6 Exeh. 353; 20 (w) Sodgers t. NowiU, 5 G. B. 125; 
 
 Law J., Exoh. 212. Rochdale Canal Co. post, c\i.\&, 
 
 T. King, 14 Q. B. 135. Webb v. Portland (x) Leather Cloth Co. T. Sirschfidd, L. 
 
 Mamvfact. Co., 3 Summer's Amer. Eep. E., 1 B<x. Oa. 299. 
 197. Bower v. HiU, 1 So. 526. {y) Green v. Bviton, 2 0. M. & B. 707. 
 
 («) Embrey\. Owen, 6 Exch. 353 ; post, Lwmley y. Gye, 2 Ell. & BL 238. 
 ch. 2, s. 1. (s) Sheppard v. Wdkeman, 1 Lev. 53. 
 
 (a) Cole V. Qt-een, 1 Lev. 309, and cases \a) yMairtxtti v. WiUiams, 1 B. & Ad. 
 
 cited j3os«, ch. 5, s. 1. 415. Jiolin y. Steward, 14 C. B. 595 ; 23 
 
 <v) Blofield V. Payne, 4 B. & Ad. 410. Law J., C. P. 148 ; post, ch. 8, s. 1. 
 
SECT. 1.] AND INJUBIES NOT ACTIONABLE. 9 
 
 as in violations of a right to property, wliether real or personal, 
 or to personal security ; lie who procures the wrong is a joint wrong- 
 doer, and may he sued, either alone or jointly with the agent, for 
 the wrong done (&). 
 
 Where the plaintiff complained that his wife had unlawfully, left 
 him and lived apart from him, and that whUst she was so living 
 apart a large fortune was left her, to her separate use, and she being 
 desirous of returning to the plaintiff to cohabit with him, and the 
 plaintiff being wilHag and desirous to be reconciled to her, the de- 
 fendant unlawfully and unjustly persuaded, procured, and enticed 
 her to continue absent and apart from the plaintiff and conceal 
 herseK from Mm, whereby the plaintiff lost the comfort and society 
 of the said wife, and her aid and assistance in his domestic affairs, 
 and the enjoyment of the fortune that had been left her, it was held 
 that this was a wrong and damage such as the law would not leave 
 without a remedy (c). 
 
 Th& general legal rights of rtiankwd are the rights of personal 
 security, personal liberty, or private property ; and private property 
 is either property in possession, property in action, or property that 
 an individual has a special right to acquire (c?). 
 
 Wherever personal security has been violated by an assault, or 
 individual liberty has been infringed by unlawful restraint of the 
 person {^fost, ch. 12), an action for substantial damages is maintain- 
 able, although the personal inconvenience and suffering may be of 
 the slightest character ; and wherever the wrong is accompanied 
 by circumstances of personal insult, or by a false charge or accusa- 
 tion of some crime or misdemeanour, exemplary damages will be 
 recoverable (e). 
 
 There are many cases in which an act is perfectly lawful in 
 itself, and will continue to be so, until damage has been done to 
 the property or .person of another; but from the moment such 
 damage arises the act becomes unlawful, and an action is maintain- 
 able for the injury. This is the case where a man sinks mines and 
 makes excavations in his own land, or lights a fire thereon, doing 
 no damage in the first instance to his neighbour, but subsequently 
 causing his neighbour's land to slide down into the artificial 
 hollow (/), or the neighbour's house to be burned by the unexpected 
 spreading of the fire {J). 
 
 Injuries to property indirectly brought about by menaces, false 
 representation, or fraud, create as valid a cause of action as any 
 
 216, 
 
 (b') Erie, J.^Lumley v. Gye, 2 EH. & Bl. (/) Bonomi v. Backhouse, Ell. Bl. & 
 
 Ell. 662 ; 28 Law J., Q. B. 378. Smith 
 
 (c) Winsmorey.Greenbanh,yfSiea,511. v. notcfemA, L. E., 1 G. P. 564. 
 
 wVBavlev, J., Hannam v. Moclcett, 2 (g) FiUistery. Phippai-d, 11 Q. B. 347. 
 
 B. & C. 937: Taberva v. Stamp, 1 Salk. 13. 
 (e) Post, ch. 22, s. 1. 
 
16 ACTIONABLE WRONGS, [CHAP. X 
 
 direct injury from force or trespass. Thus, if the plaintiff's tenants 
 have been driven away from their holdings by the menaces of the 
 defendant, damages are recoverable for the wrong done QC). 
 
 Questions of proprietary right often involve nice distinctions. 
 Thus, as regards the right of a landowner or occupier of lands to 
 the preservation on his land, and to the means of reducing into his 
 possession, birds and animals ferse naturae, it has been held that the 
 owner of a decoy pond may maintain an action against a person 
 who wilfully discharges guns near the decoy pond, and frightens 
 away the wild 'fowls (i), because wild fowl are protected by the 
 statute 25 Hen. '8, c. 11, and constitute a known article of food; 
 and the keeping of a decoy pond is useful to the public, and a 
 profitable mode of employing the land ; but that no such action is 
 maintainable against a person who has wilfully and maliciously 
 discharged guns near the plaintiff's rookery, and frightened away 
 , the rooks, and caused them to forsake the plaintiff's trees, for rooks 
 have been declared to be a nuisance by the legislature ; and no 
 person can claim a right to have them resort to his lands, nor can 
 any person become a wrong-doer by preventing their so doing (A). 
 So it is an actionable injury to fire off guns to frighten your neigh- 
 bour's grouse, and prevent them going from your land to his (Q. 
 
 lAUvary amd artistic property. — Every one has at common law a 
 right to the exclusive possession and enjoyment of his intelleetual 
 and manual labours, so that if a man devotes his private hours to 
 literary composition, or a,rtistic works, another person has no right 
 to appropriate to himself the produce of his labour without his 
 consent. The unpublished manuscript of the author, for example, 
 cannot be used, copied, or published, without his authority (m) ; 
 nor ■ the unpublished lectures of a lecturer (n) ; nor the picture, 
 etching, or portrait of the painter or photographer (o). If, therefore, 
 a geologist gets a fossil engra,ved or photographed, in order to send 
 it to bis friends, or the owner of a picture or a portrait lends it to 
 a friend to get it engraved, any one who gets possession of the 
 photograph or the engraving has no right at common law to take 
 copies of it for sale. And whoever handles or deals with photo- 
 graphs, without the consent of the owner of them, in order to get 
 negatives from them, or fqr any other purpose, is guilty of an act 
 of -trespass {p). 
 
 Interfmnce hy force or fraud with the free exercise of another's 
 
 (h) 1 EoU. Abr. 108, pi. 21. 2 Eden, 329. 
 
 (i) Keeble v. ffielcermgill, 11 Mod. 74, (n) Ahemeth/ y. Hutchinson, 1 H. & 
 
 130 ; 3 Salk. 9 ; Holt, 14. Carrington r. Tw. 40; 3 Law J., Ch. 209. 
 
 Taylor, 11 East, 571. (o) Prince Albert v. Strange, 1 Mac. & 
 
 («;) Hammom v. Mochett, 2 B. & C. 943. Gord. 42 ; 18 Law J., Ch. 126. 
 
 (Z) motson v. Peat, 34 Law J., C. P. (p) MayaM v. Higiy, 1 H. & C. 148 ; 
 
 His. . 31 Law J., Excli. 329; post, s. 2, and 
 
 (m) Queensberry (Duke of) v. Shebheare, post, ch. 7. 
 
SECT. 1.] AND INJUEIES NOT ACTIONABLE. 11 
 
 trade or occupation, m means of limlihood, is a tort — such as pre- 
 venting people by the use of threats and intimidation from trading 
 ■with the plaintiff's vessel in a foreign port (q), or dealing at the 
 plaintiff's shop, or sending their children to the plaintiff's school, 
 or placing ohstructions and impediments in the way of the exercise 
 of the right of free access to and from a man's place of business (r). 
 Where the plaintiff's declaration of his cause of action set forth 
 that he was a mason, and possessed of a stone quarry, and quarried 
 and dug stones therefrom, as well to sell as to build stone buildings> 
 and that the defendant, intending to deprive him of the benefit of 
 his quarry, disturbed his workmen and all comers, threatening to 
 maim and vex them with suits if they worked or bought stones 
 there, whereupon all the buyers desisted from buying and the work- 
 men from working there, it was held that this was a great damage 
 to the plaintiff and a good cause of action (s). And in a case of 
 intimidation by trades' unionists, an injunction was granted against 
 issuing placards enjoining workmen not to work for the plaintiff 
 tni the dispute between the plaintiff and the trade union was 
 settled, on the ground that, although the act of such unionists 
 amounted to a crime, yet it also tended to the destruction or dete- 
 rioration of the plaintiff's property (t). 
 
 " There are two sorts of acts for doing damage to a man's employ- 
 ment, for which an action lies : the one is in respect of a man's 
 privilege, the other is in respect of his property. In that of a 
 man's franchise or privilege whereby he hath a fair, market, or 
 ferry, if another should use the like liberty, though out of his 
 limits, he shall be liable to an action, though by grant from the 
 long. But therein is the difference to be taken between a liberty 
 in which the public hath a benefit and that wherein the public is 
 not concerned. The other is where a violent or malicious act is 
 done to a man's occupation, profession, or way of getting a liveli- 
 hood ; there an action lies in aU cases. But where one man doth 
 damage to another by using the same employment no action will 
 lie, because one man has as much liberty to use an employment as 
 another." Thus, where one schoolmaster sets up a new school to 
 the damage of an ancient school, and thereby the old scholars are 
 allured from the old school to come to the new school, an action is 
 not maintainable (u). But " if a man should lie in wait and fright 
 the boys from going to school, that schoolmaster might have an 
 action for the loss of his scholars " (v). 
 
 Interference with a man's trade iyfair competition is never action- 
 Co) Ta/rleton v. MoOomley, Peake, 270. L. R, 6 Eq. Ca. 551. 
 Ir) Bell T. Mid. RaU. Co., 10 C. B., (u) 11 Hen. 4, fol. 47, pi. 21 ; fol. 14, 
 
 N. S. 307 ; 30 Law J., C. P. 273. pi. 23. 
 
 (s) Qwrret v. faa/hr, Cro. Jac. 567. («) Per Holt, C.J., Keehle v. Sicker' 
 
 (t) Springhead Spiming Co. r. Riley, ingiU, 11 East, 576, n. 
 
12 ACTIONABLE WEONGS, [CHAP, I. 
 
 able. The loss in such a case is not, in fact, caused by wrong, but by 
 another's exercise of his undoubted right ; and in every complicated 
 society the exercise, however legitimate, by each member of his par- 
 ticular rights, or the discharge, however legitimate, by each member 
 of his particular duties, can hardly fail to cause conflicts of iaterest 
 which win be detrimental to some. It is essential, therefore, to 
 the maintenance of an action of tort, that the action complained of 
 should be legally wrongful as regards the party complaining ; that 
 is, it must prejudicially affect him in some legal right ; merely that 
 it will do him harm is not enough (x). 
 
 If a fisherman fits out a boat with lines and nets, and goes to fish 
 in the high seas, and another fisherman comes and fishes beside 
 him, and with tempting baits, or other contrivances, draws away 
 the fish from the lines and nets of the first comer, with a view of 
 catching them himself, an injury may be done ; but there is no tort 
 or wrong, for the one had as much right to fish, and use fair and 
 reasonable means to catch fish, as the other ; but if the rival fisher- 
 man lays hold of the nets of the first comer, or violently distm-bs the 
 water and drives away the fish, and prevents the latter, by force or 
 violence, from exercising his occupation and calling, there is then a 
 wrong done to him, and hS is entitled to compensation in damages (y). 
 
 Disturbance of a ferry. — The owner of a ferry has a cause of 
 action against every intruder who carries in the hne of the ferry, 
 whether it be done directly or indirectly. He has a right to the 
 transport of the passengers using the way, and whoever makes a' 
 landing-place near the ferry so as to be in substance the same as the 
 ferry landing-place, making no material difference to travellers) is 
 guilty of a tort. And this is on the ground that the owner of the 
 ferry is bound to maintain proper boats, boatmen, and all other 
 things necessary to maintain the ferry, in an efficient state for the 
 use of the public. It does not, therefore, necessarily apply to a 
 monopoly of passage created by a statute (z). However, if the public 
 convenience requires a new passage at such a distance from the old 
 ferry .as makes such new passage a real convenience to the public, 
 the proximity seems not to be actionable. The area for the mono- 
 poly of a ferry, therefore, depends on the need of the public for a 
 new passage (a). In an action for the disturbance of a ferry, it is 
 sufiicient for the plaintiff to prove that he was in possession of the 
 ferry at the time the cause of action accrued. The right is an 
 incorporeal right, unaccompanied in general with any property in 
 the soil (&). Being an hereditameint, however, it comes within the 
 term "lands " in the Lands Clauses Act, and statutory compensa- 
 
 (cc) Sogemr. Magendro Dutt, 13 Moore, 123. See p. 11, supra. 
 
 P. C. C. U\. (a) Newton v. Gubitt, 12 C. B., K. S. 
 
 "(2') ■fownfl' V. Eichens, 6 Q. B. 606. 32 ; 31 Law J., C. P. 246. 
 
 (z) Zetton v. Goodden, L. K., 2 Eq. Ca. (J) Peter v. Kendal, 6 B. & C. 710. 
 
SECT. 1.] AND INJURIES NOT ACTIONABLE. 13 
 
 tion, therefore, is claimable from a railway company, who in pur- 
 suance of their Act erect a bridge for foot passengers so near the 
 ferry, as to disturb it (c). 
 
 Disturbance of a market. — If people come to a market to sell 
 their wares, they are subject to toll, which is payable to the owner 
 of the market (d) ; and if they come near the boundary of the 
 market, and avail themselves of the concourse of persons coming to 
 and fro, to find customers, and sell without the boundary of the 
 market, so as to avoid the payment of the toU, an action is main- 
 tainable against them by the owner of the market for a disturb- 
 ance of the market (e). But it must be proved that the thing was 
 done wilfully and intentionally (/). It is not necessary that the 
 defendant should actually have sold any thing ; any active interfer- 
 ence by him in the conduct of the new market, or participation in 
 its profits or risk is sufficient (g). And a new market held on the 
 same day as the old is a disturbance by intendment of law (h). 
 
 According to Meta a new market, opened within seven miles of 
 an existing legally established market, is actionable (i). Such a 
 limit might be suited to the simple wants of a rude life, where in- 
 habitants are few, but is unfitted for large towns, where daily wants 
 are greatly multiplied. Under the latter circumstances, it seems 
 that the area within which a new market would become actionable 
 would be diminished, and would now depend upon the public need 
 for it (Jfc). 
 
 , Market tolls. — AtoU imposed on the occupier of every stall erected 
 for the sale of articles is a toll on the stall itself, and not on the 
 articles sold at the stall, for the occupier is to pay the toll whether 
 he brings the article to the market or not, and he pays in respect of 
 the space his stall occupies, and not on the articles he sells (I). But 
 when the toU is placed on the specific article, such as atoll on every 
 horse sold within the limits of the market, then the article cannot 
 be lawfully sold without payment of the toU (m). An immemorial 
 toU may be sri^tained as a claim to a reasonable toll, varying in 
 amount from time to time with the value of money, and its lawful 
 origin may be presumed within legal memory, by means of a dedi- 
 
 (c) Sea. V. Cambrian Bailmy, L. R., 6 637 ; 31 Law X, M. 0. 185. 
 
 OB 422. (m)Llandaff,&c.,Mwrket Co.Y. Lyndon, 
 
 (d) Great Tannouth {Mayor, ^c.) v. 30 Law J., M. C. 105, as to sale of horses 
 Groom 32 Law J., Exch. 74. by a Uoensed auctioneer. And as to 
 
 (e) Bndqlmd T. STuvpter, 5 M. & "W. penalties for carrying things for sale 
 gyg from house to house within the bound- 
 
 { f) Brecon (Mayor, <fcc. of) y. Edwards, aries of a market, OasweU t. Cooh, supra. 
 
 31 Law J Exch. 368. As to the right to a stall in an ancient 
 
 (a) Mayor dec. of Dorchester 7. Emor, market, and the right of shopkeepers to 
 
 L R 4 Exch 335. place stalls in the street in front of their 
 
 (h) Yard \ Ford, 2 Wms. Saund. 174. houses on market days, EUis v. Mayor, 
 
 (ii Fleta lib 4, c. 28, s. 13. <*c. of Bridgnorth, 15 C. B., N. S. 52. 
 
 (B "Willes J 31 Law J., C. P. 254. AihwoHh v. Eeyworth, L. E., 4 Q. B. 316 ; 
 
 \l) Caswell V." Cook 11 C. B., N. S. 38 L. J., M. C. 91. 
 
14 ACTIONABLE WRONGS, [CHAP. I. 
 
 cation of the streets to tlie public, and a contemporaneous reserva- 
 tion of the toll on the part of the crown between the time of 
 Henry III. and Charles I. (w). 
 
 Torts fovffbded on contract. — A tort may be dependent upon, or 
 independent of, contract. If a contract imposes a legal duty upon 
 a person, the neglect of that duty is a tort founded on contract; so 
 that an action ex contractu for the breach of contract, or an action 
 ex delicto for the breach of duty, may be brought at the option of 
 the plaintiff. When there is a violation of a legal right existing 
 independent of any contract between the parties, such as an inva- 
 sion of a right of property or of the right of personal security, or 
 an injury to character and reputation, then the tort is not fomided 
 on contract, and an action ex deKcto is alone maintainable. Whenever 
 an action of tort is founded on contract, an action is maintainable for 
 nominal damages, although no actual damage can be proved (o) ; 
 but the plaintiff who brings the action must be a party to the ■ 
 contract, for no person can in general sue in respect of a tort 
 founded on contract who was not party, or privy to, and could not 
 have been sued upon, the contract {p) ; and the cause of action 
 cannot be transferred to one to whom the contract itself is not 
 transferable {q). Thus an electric telegraph company, though it 
 would be answerable to a person transmitting messages to a 
 third person by its line for delay or mistakes in the transmis- 
 sion of the message, is not liable for any mistakes made in 
 transmitting the answer to such message, unless- the person so 
 answering can be considered as the agent of the original sender (r). 
 
 Breach of duty. — Wherever facts and circumstances can be shown 
 to exist which create a duty on the part of the defendant towards 
 the plaintiff, and there has been a breach of that duty, and a con- 
 sequent damage to the plaintiff, an action for damages is main- 
 tainable. " If several are jointly bound to perform the duty, they 
 are liable jointly and severaly for the failure or refusal to perform 
 it ; and if it is a duty which the majority of the number is bound 
 to perform, those who by their refusal prevent the greater number 
 from concurring are answerable to the party injured" (s). But 
 before an action can be maintained, it must of course be clearly 
 proved that the law in^oses upon the defendant the duty which 
 he is charged with neglecting (f). Thus, where the declaration 
 
 (ji) Lawrence v. Hitch, L. B,, 3 Q. B. (r) Playford v. Urtited Kingdom Tele- 
 
 521. graph Co., L. B., 4 Q. B. 706. See 
 
 (o) Marzetti v. WUliamt, 1 B. & Ad. Senkel v. Pwpe, L. B., 6 Exoh. 7. As to 
 
 423. electric telegraph companies in tMs 
 
 {p) Winteiiottom v. Wright, 10 M. & country, see 31 & 32 Vict. c. 110 ; 32 & 
 
 W. 109, explained in Blachmre v. Brist. 33 Vict. c. 75 ; post, p. 16. 
 
 <£ Bx. MoAl. Co., 8 BU. & Bl. 1049. (a) Ld. Brougham, Ferguson v. Emrl 
 
 Robertson t. Memimg, 4 Maeq. H. L. C. Kimtovl, 9 CI. & Fin. 305. 
 
 167. - (8) Cwlewis t. Broad, 31 Law J., 
 
 (?) Howard v. Shepherd, 9 0. B. 321. Exch. 473. 
 
SECT. 1.] AND INJURIES NOT ACTIONABLE. 15 
 
 alleged that the defendant wrongfully and negligently hung a 
 chandelier in a puhlic house, knowing that the plaintiff and others 
 were lUcely to be under the chandelier, and that if not properly 
 hung it would probably fall upon them, and that the chandelier 
 fell upon the plaintiff, it was held that the declaration did not dis- 
 close any duty by the defendant to the plaintiff for the breach of 
 which an action could be maintained (u). 
 
 If facts are proved showing it to be the duty of a joint-stock 
 company to register the plaintiff as a shareholder, and grant him a 
 certificate of proprietorship of shares in the company, the company 
 will be responsible in damages for neglecting their duty in that 
 behalf, though no actual pecuniary- damage is proved to have been 
 sustained by the plaintiff (v). So it is the duty of the shareholder 
 Avho has Sold shares to execute a transfer of them, although the 
 company is winding up, and he will be liable to his broker, who 
 has been obliged by the rules of the Stock Exchange to buy other 
 shares for the purpose of delivery to the purchaser accordingly (w). 
 
 Breach of dwty on the fart of assignees of leases. — Where a 
 party accepts an assignment of a lease subject to the payment of 
 the rent and the performance of the covenants, but enters into no 
 express contract that he will pay the rent and perform the covenants, 
 the law, nevertheless, imposes that duty upon him as incident to 
 the position he has chosen to occupy, and if by neglecting that 
 duty a burthen is cast upon the person from whom he took the 
 estate, an action on the case is maintainable against him by the 
 latter (x). A similar duty towards the original lessee is, it seems, 
 imposed upon each successive assignee, so far as regards any 
 breaches of covenant during the continuance of Ms term (y). 
 
 Breach of duty on the fart of.fuUic oncers.— Public functionaries 
 appointed to act ministerially are liable to an action at the suit of 
 any one who suffers damage from their neglect or refusal to perform 
 the functions of thMr ofiSces. A\Tiere there is a ministerial act to 
 be done by persons who on other occasions act judicially, the refusal 
 to do the ministerial act is equally actionable as if no judicial 
 functions were on any occasion intrusted to them ; but where the 
 functions of the public officer are partly ministerial and partly 
 judicial, an action cannot be brought against him unless malice- be 
 averred and proved {z). 
 
 Public of&cers employed in the public departments, in the con- 
 
 (») Cam V. SeUm, L. E., 3 C. P. 495. lord's consent to an assignment, see 
 
 \v) Catchpole v. Ambergaie, &c. ■ Bail. Lekmann v. M'Arthur, L. R., 3 Ch. App. 
 
 Co. 1 Ell. & El. 120 ; 22 Law J., Q. B.. 496. Bairn, y.FotlwrgiU, L. K, 6 Eioh. 
 
 35 ^^" 
 
 '(■w) Biederrmn v. Stone, L. E., 2 0. P. (y) Moule v. Qmrett, L. E., 5 Exch. 
 
 ^(W) jiim,<!im ^g^^ ^^^ Channell & Pigott, BB., diss., 
 
 (X) Bwmett t. Zynch, 5 B. & 0. 589. Oleasby.B. 
 As to the lessee's duty to obtain his land- (z) Post, oh, 15., 
 
16 ACTIOKABLE WIIONGS, [CHAP. I. 
 
 duct and management of the public business of the country, are 
 not responsible for the negligence and misconduct of those who 
 act under them, although such subordinate officers have been 
 appointed by them. Thus the Lords Commissioners of the Treasury, 
 the Commissioners of Customs and Excise, the auditors of the 
 Exchequer, &c., have never been held liable in damages for the 
 negligence or misconduct of .the inferior officers in their several 
 departments. A Queen's of&cer stationed on board ship to do his 
 duty there, is not responsible for the negligent acts of his subordi- 
 nate officers, nor is the Postmaster-General [responsible for the 
 negligence or misconduct of clerks and letter-sorters employed and 
 appointed by him for the execution of certain public duties in the 
 Post-office, but these public functionaries are responsible to every 
 individual who sustains damage by reason of their own personal 
 neglect or misconduct (a). Thus, if the man who carries the letters 
 to the Post-office loses any of them, he is answerable ; so is the 
 sorter in the business of his department ; so is the postmaster for 
 any fault of his own (6). The collector of customs is, in Hke 
 manner, responsible in damages to all who sustain a direct and 
 immediate injury from a neglect by him to execute the duties of 
 his office, as for refusing to sign a bill of entry which it was his 
 duty to sign, or to make an order which it was his duty to 
 make (c). 
 
 Whenever a public officer abuses or neglects the powers or duties 
 of his office, either by an act of commission or omission, and in 
 consequence thereof an injury accrues to an individual, and no 
 special remedy for enforcing performance of the public duty is 
 appointed by statute, an action for damages is maintainable against 
 such public officer ; and every one who is appointed to discharge 
 a public duty, and receives a compensation, whether from the 
 croWn or otherwise, is constituted a public officer (d). If a bishop, 
 by neglecting to perform the plain duties of his office, inflicts an 
 injury upon another, an action for damages is maintainable against 
 him. And if a clergyman wrongfully refuses to administer the 
 sacrament to a man, who is thereby prejudiced in his civil rights, 
 or the registrar of births should refuse to register the birth of a 
 person, and so cause him to lose an estate, an action for damages 
 would be maintainable. So if a lord of a manor were to refuse 
 or neglect to. hold a court, by which a copyholder should be 
 prevented from having admission to his copyhold, an action for 
 damages would lie against such lord (e). 
 
 (a) Zam v. Cotton, 1 Salk. 17. (d) See Irwin v. GVey, L. E., 1 C. P. 
 
 (6) Whitfield T. Lord Lt Dapemer, 171 ; 3 P. & P. 635. 
 
 Cowp. 765. (e) Eenley t. Mayor of Lyrm, 5 Bing. 
 
 (c) B(my V. Arnaud, 10 Ad. & E. 108. Ferguson t. Ewrl Kinnavl, 9 CI, & 
 
 670. Pin. 251. 
 
SECT. l.J AND INJURIES NOT ACTIONABLE. 17 
 
 If a superiutendent of customs uses the power he possesses for 
 the purpose of obstructing or ruining the trade of a particular 
 merchant, he is responsible in damages for the injury he occa- 
 sions (/). But a surveyor of highways, upon whom is imposed 
 the obligation of keeping in repair the highways of which he has 
 charge, is not liable to an action by reason of his omission to repair 
 the highways, a statutory remedy for the enforcement of the public 
 duty being provided by the Highway Act (g). 
 
 Breach of duty hy postmasters — Non-delivery of letters.— A post- 
 master is bound to deliver letters at the respective places of abode 
 of the persons to whom they are directed, and is liable to an action 
 on the case for substantial damages if he fails to do so. All deputy- 
 postmasters are responsible for their own personal misfeazance, for 
 they are all made public officers, and charged with a great public 
 trust since the legislative establishment of the Post-office. If, 
 therefore, a person to whom a letter is addressed cannot be found 
 at the place indicated, it is the duty of the postmaster to make 
 reasonable inquiry after him Qi). 
 
 Negligence arid 'hrea.eh of duty on the part of consignors and bailors 
 of chattels. — The law imposes upon aU persons employing others to 
 carry explosive, corrosive, or dangerous articles, concealed in bottles, 
 boxes, or packages, the duty of giving reasonable notice to the 
 persons they employ of the character of such articles, in order that 
 proper precautions may be taken to prevent injury to themselves 
 and to others ; and if no such notice is given by the emplover, and 
 damage is sustained by the party employed from the want of 
 notice, there is that conjunction of damage and wrong which will 
 support an action (*). 
 
 Every person, also, who hires out or lends a chattel to another, 
 knowing at the time that the chattel has dangerous defects which 
 may make the thing perilous to use, is bound to disclose to the 
 hirer or borrower the existence of such defects, and if damage is 
 sustained by reason of the non-disclosure thereof, there is both 
 damage and wrong, and an action is maintainable (/). But it is 
 otherwise if such person was whoUy ignorant of any secret defect 
 or hidden source of danger, as he cannot of course disclose what he 
 does not know (Jc). Where the duty grows out of a contract between 
 the parties, no one can, in general, sue for a breach of that duty, 
 
 (f) Roaers y. Bagendro Dutt, 13 Moore, P. 137 ; post, ch. 8, s. 1. Brass t. Mait- 
 P. 0. C. 209. iand, 6 Ell. & Bl. 470 ; 26 Law J., Q. B. 
 
 (g) Young v. Dams, 'post, ch. 16 ; 5 & 6 
 ITm. 4, c. 50, ss. 20, 41. ^eepoat, cli. 4, 
 
 3, and ch. 16, =. 1. 
 
 (7i) Rowning v. GoodchUd, 2 W. Bl. 
 08. Smith v. Powdich, 1 Cowp. 182. 
 (i'\ Fwrrant v. Barfies, 32 Law J., C. 
 
 49. 
 
 Wm. 4, c. 50, ss. 20, 41. See jjos*, cli. 4, (/) Blahemore v. Brist. & Ex. Rail. Co., 
 
 s. 3, and ch. 16, =. 1. 8 Ell. & Bl. 1051 ; post, oh. 9. 
 . (7i) Rowning v. GoodcUld, 2 W. Bl. (k) Mac Cai-thj v. YouiKf, 6 H. & N. 
 
 908. Smith v. Powdich, 1 Cowp. 182. 329. 
 
18 ACTIONABLE WEONGS, [CHAP, I. 
 
 who was not privy to, and could not have sued upon, the contract, 
 as has been before observed (p. 1.4). 
 
 Torts founded on negligence. — " The action for negligence proceeds 
 upon the idea of an obligation on the part of the defendant towards 
 the plaintiff to use care, and a breach of that obligation to the 
 plaintiff's injury" (J). As a rule there must be afBrmative proof of 
 negligence on the part of the defendant to support; an action, for 
 where it is a perfectly even balance on the evidence whether the 
 injury has resulted from the want of proper care on the part of one 
 side or the other, the party who founds his claim on the imputation 
 of negligence faUs to establish it (m). However, where the accident 
 is one which would not, in all probability, happen if the person 
 causing it was using due care, and the actual machine causing the 
 accident is solely under the management of the defendant, it has 
 been held that the mere occurrence of the accident is sufficient 
 prima facie ^moi of negligence to impose on the defendant the onus 
 of rebutting it (w). The damage, too, must be proximately caused 
 by the negligence, and must not be the immediate result of any 
 intervening negligence on the part of the plaintiff himself {ante, 
 pp. 5, 6);' for if the plaintiff's own carelessness has directly con- 
 duced to the damage he has sustained, he is the author of his own 
 misfortune, and cannot charge it upon others (o). As between the 
 plaintiff and a third person, however, not the defendant, the defen- 
 dant will be liable if the proximate cause of the injury be his 
 negb'jJence, although some" other person might have omitted to 
 perform some duty, the omission to perform which indirectly con- 
 tributed to cause the injury complained of Thus, where a com- 
 pany for its own profit . maintained a channel for carrying off 
 water, the outfall to which channel other persons were bound to 
 maintain of certain dimensions, but failed to do so, and consequently 
 the water accumulated in the channel, and because the banks were 
 not sufficiently strongly made, ultimately burst the embankment 
 and ilooded the plaintiff's land, it was held that he could recover 
 against the company {p). So, conversely, if the defendant's negli- 
 gence be the main cause of the injury, the fact that the injury was 
 
 (?) Wilde, B., 7 H & N. 603. Slum Bail, L. K., 5 Q. B. 411 ; 6 Ibid. 759. 
 v. Iftrrth Brit. Austr. Co., ,31 Law J., (n) .Scott y. Land. Doch Co., Si Lsm J ., 
 
 Exch. 437. It is therefore a relative Exoh. 17; lUd. 220. Briggs v. 
 
 term, and the term "gross negligence" 35 Law J.,-Eich. 163. Czech v. Generd 
 
 is only ordinary negligence with a yitupe- Steam Ncmgation Co., L. E., 3 C. P. 14. 
 
 rative epithet. See Grill \. General Iron See Moffatt v. Bateman, L. B,, 3 P. G. 
 
 Screw Collier Co., L. K., 1 0. P. 600. Ca. 115. 
 
 (m) Cotton T. Wood, 8 C. B., N". S. 568 ; (o) See post, eh. 8, s. 1, as to oontri- 
 
 29 Law J., C. P. 333. JSammach t. butory negUgenee. Young v. Orote, 12 
 
 TTAife, 11 C. B., K S. 588. Ld. Wens- Moore, 484; 4 Bing. 263. Butterworth 
 
 leydale, Morgan v. Sim, 11 Moore, P. C. v. Brownhm, 34 Law J., C. P. 266. 
 
 C. 312. Welfa/rev. Brighton Sail., L. R, (p) Harrison v. Oreat Northern Sail. 
 
 4 Q. B. 693. Kearney Y. Land. & Brighton Co., 33 Law J., Exch. 266. 
 
SECT, l.j AND INJURIES NOT ACTIONABLE. 19 
 
 caused immediately by the negligent act of a stranger ^^'l\l not 
 exonerate the defendant. Thus, where a gas company so negligently 
 constructed a pipe, that the gas escaped into the plaintiff's house, 
 and a "workman who happened to be in the house went near the 
 place where the gas escaped, with a lighted candle in his hand, 
 which caused an explosion, it was held that the gas company was 
 nevertheless responsible (q). 
 
 Contributory negligence on the part of the plaintiff, who com- 
 plains that he has been damniiied by the negligence of the de- 
 fendant, is in general an answer to the action, on the ground 
 that a man cannot complain of that which he has himself helped 
 to bring about. Thus, where a man hid one hundred pounds 
 sterling in some hay in an old nail bag, and delivered it to a 
 common carrier to be carried to a banker, and the money was lost, 
 it was held that the common carrier was not responsible for the 
 loss, as the consignor had neglected to inform the carrier of the 
 exceeding value of the bag, and had thereby prevented him from 
 taking proper care of it (r). 
 
 So, where the consignor concealed a quantity of guineas in an 
 ordinary brown paper parcel tied with a string (s), and a numbpr 
 of sovereigns in a packet of tea (t), and several hundred pounds' 
 worth of bank-notes and gold in an ordinary school-boy's box, 
 and the money so sent was lost by the way, it was held that the 
 common carrier was not responsible for the loss of it (u). And 
 if glass, or china, or fragile articles requiring great, care for their 
 safe conveyance, are put into boxes and packages and delivered 
 to a carrier to be carried, and no notice is given to the' latter 
 of the peculiar nature of the contents of such packages, and of 
 the additional care required for their safe conveyance, and the 
 things are damaged in the course of the transit, the carrier is not 
 bound to make good the damage, as the consignor has himself 
 directly contributed to the injury by concealing the peculiar 
 nature of the articles, and the amount of care requisite for their 
 safe conveyance. 
 
 Wherever, indeed, the immediate and proximate cause of the 
 damage is the plaintiff's own supineness, carelessness, or un- 
 skilfulness, he has no ground of action against the defendant, 
 though the primary and original cause of damage be the defen- 
 dant's wrongful aci. Thus, wherp some bricklayers employed by the 
 defendant had wrongfully laid several barrowfuls of lime rubbish 
 
 (q) jBurfowi v. Mm-ch Gas Co., L. R., (t) Bradley v. Waterkouse, 3 C. & P. 
 
 6 Exoh. 67 ; qucn-e whether they would 318. 
 
 have been liable if the workman had heen («) BaUoii v. Donovan, 4 B. &" Aid. 
 
 the plaintifi's servant ; /Jit^. 37. Maylim y. Barnes, Z H. Si C. QOl ; 
 
 (r) Gibbon v. Paynton, 4. Burr. 2298. 5 D. & R 487. 
 
 (s) Clay V. WiUan, 1 H. Bl. 298. 
 
 2 
 
20 ACTIONABLE WRONGS, [CHAP. I. 
 
 before the defendant's door, by the side of a highway, and whilst 
 the plaintiff was passing in his chaise, the wind raised a whirlwind 
 of this rubbish, which frightened the plaintiff's horse and caused it 
 to. start on one side, in the direction of an approaching waggon, and 
 the plaintiff, to prevent the horse from running against the waggon, 
 pulled him sharp round, and the horse then ran over a lime-heap 
 lying before another man's door, and the shaft was broken by the 
 shock, and the horse, being then still more frightened, ran away and 
 upset the chaise, and threw the plaintiff out and injured him, it 
 was held that although the defendant was to blame for putting the 
 rubbish by the side of the road, yet if the plaintiff's running against 
 the second heap of rubbish was owing, to his pulling the horse 
 round too sharp, the immediate cause of the injury was his own 
 unskilfulness in the management of his horse, rather than the 
 original wrongful act of the defendant (v). 
 
 Where the plaintiff complained that the defendant had hired him 
 to carry a load of timber to Ipswich, and that he carried the timber 
 there and asked the defendant where it was to be deposited, but the 
 defendant would give no directions, and made the plaintiff's horses, 
 which were heated, stay so long in the waggon that they took cold 
 and some of them died, and the rest were spoiled, it was held that 
 the immediate and proximate cause of the injury to the horses was 
 the plaintiff's own neglect, in not having them taken out of the 
 waggon and put into a stable, and that the original wrongful act of 
 the defendant, in not finding a place of deposit for the timber, was 
 not sufiiciently connected with the loss of the horses to render the 
 defendant responsible for such loss (w). 
 
 But the neglig.enpe or misconduct on the part of the plaintiff dis- 
 entitling him to an action for compensation must be such as he is 
 legally responsible for, and such as the law recognises as a co- 
 operative causp of the injury. Where the defendant left his horse 
 and cart for a long time unattended in the street, where some little 
 boys were at play, and some of the boys got into the cart, and 
 another boy led the horse on to give them a ride, and one boy fell 
 off the shafts and got his leg crushed under the wheel, it was held 
 that the defendant was responsible for the fall and the broken leg, 
 ■as it was the natural result of his misconduct in leaving the cart 
 unattended, and that the boy, in consequence of his tender years 
 and natural instinct for play, and want of reflection and foresight, 
 could not be considered legally responsible for the damage he had 
 sustained, so as to be precluded from recovering compensation from 
 the defendant (x). However, where the defendant left the wooden 
 covering of a cellar leaning against the wall, and the plaintiff, a 
 
 'v) Flowery. Adam, 2 Taunt. 314. (x) Lynch r. Nurdm, 1 Q. B. I 
 
 [w) Virpue T. &rd, 2 Ley. 196. 
 
SECT. 1.] AND INJURIES NOT ACTIONABLE. 21 ■ 
 
 child of seven years old, got upon it and jiimped from it in play, 
 by means of which it fell upon and injured him, it was held he 
 could not recover (2/). And so where the defendant exposed for 
 sale, without superintendence, a machine which any passer by 
 might set in motion, and which, when set in motion, was dangerous, 
 and the plaintiff, a boy of four years old, by the direction of his 
 brother, put his hands in the machine while his brother set it in 
 motion, it was held he could not recover («). 
 
 And though a man may not disaffirm his own careless or culpable 
 acts, and complain of the consequences which those acts have 
 brought about in the conduct or omission of others, yet the rule 
 must be ■ limited to such consequences as are in some degree direct 
 and not collateral ; probable, though perhaps not necessary (a). 
 Although there may have been contributory negligence on the part 
 of the plaintiff, yet if the damage is not the necessary, or ordinary, 
 or likely result of such negligence, but is due to some wholly 
 unlooked-for and unexpected event, which could not reasonably 
 have been anticipated or expected to be likely to occur, such con- 
 tributory negligence will be too remote to be set up as a- bar to the 
 action. Thus, if the customer of a banker, who is desired to keep 
 his cheque-book lotked up, nevertheless negligently leaves it on 
 his table, and thereby enables his servant to get possession of it, 
 and, tear out a cheque and forge his master's signature to it, and 
 commit a fraud upon the bankers, this will not enable the bankers 
 to throw the loss upon their customer, as being the result of his 
 negligent keeping of his cheque-book, for it could not reasonably 
 have been anticipated that the power of obtaining a cheque would 
 induce a servant to commit a forgery (6). ' . 
 
 Where negligence on the part of the plaintiff is remotely con- 
 nected with the cause of injury, the question to be determined is 
 whether the defendant, by the exercise of ordinary care and skill, 
 might have avoided the injury. If he could have done so^ the 
 remote and indirect negligence of the plaintiff cannot be set up as 
 an answer to the action (c). 
 
 Thus, where the plaintiff negligently left his donkey in a public 
 highway, tied together by the fore-feet, and the defendant carelessly 
 drove over and killed the ass with his horses and waggon in broad 
 
 {y) AhlottY. Macfie, 83 Law J., Bxcli. (b) Bank of Ireland v. Trustees of 
 
 177. As to two children playing to- JEvans's Chanty, 5 H. L. C. 411. Swan 
 
 gether, see S. O. t. North Brit. Austr. Co., supra. Taylm- 
 
 (z) Mwngan v. Atterton, L. E., 1 Exch. v. Ot. Jnd. Penim., 28 Law J., Oh. 285 ; 
 
 239. As to the death of a cliild between lb. 714. See Donaldson v. Gillott, L. E,, 
 
 verdict and judgment, see Kramer v. 3 Eq. Ca. 274. Johnston v. Benton, L. E., 
 
 Wayma/rTe, Ibid. 241. 9 Bq. Ca. 181. Be United Service Co., 
 
 (a) Wilde, B., Swan v. North Brit. L. E,, 6 Ch. App. 212. 
 Austr. Co., 31 Law J,, Exch. 437 ; 32 lb. (c)- Greenland v. Chaplin, 5 Exch. 
 
 (Bxch. Ch.) 273. ' 248. 
 
22 ACTIONABLE WEONGS, [CHAP. I. 
 
 daylight, the animal heing unable to get out of the way of the 
 waggon, it was held that the misconduct of the plaintiff, in leaving 
 the ass in the highway, was no answer to the action; for, although 
 the ass might have been wrongfully there, still the defendant was 
 bound to go along the road with care, and at such a pace as would 
 be likely to prevent mischief " Were this not so, a man might 
 justify the driving over goods left in a public highway, or even over 
 a man lying asleep there, or the purposely running against a caifriage 
 going on the wrong side of the road " (d). 
 
 Contributory negligence on the part of the plaintiff, therefore, 
 will not disentitle him to recover damages, unless it were such that, 
 but for that negligence, the misfortune could not have happened ; 
 nor if the defendant might, by the exercise of care on his part, 
 have avoided the consequences of the neglect or carelessness' of the 
 plaintiff (e). 
 
 Liability of the defendant in respect of the remote ulterior and 
 unusual consequences of a negligent act. — "I entertain," observes 
 Pollock, C.B., " considerable doubt whether a person who has been 
 guilty of negligence is responsible for all the consecjuences which 
 may under any circumstances arise, and in respect of mischief 
 which could by no possibility have been foreseen, and which no 
 reasonable person would have anticipated. I am inclined to con- 
 sider the rule of law to be this, that a person is expected to anticipate 
 and guard against all reasonable consequences, but that he is not 
 by the law of England expected to anticipate and guard against 
 that which no reasonable man would expect to occur " (/). 
 
 "Where the owner of a horse negligently allowed his horse to stray 
 on the high road, it was held that the owner would be responsible 
 for all such damage as in th6 ordinary sequence of events might be 
 expected to occur therefrom, such as the horse's walking into a 
 neighbouring pasture, and consuming the grass there, or wandering 
 into a corn-field and trampling down the corn ; but not for a kick 
 to a child in the road, unless it could be shown that the horse was 
 naturally of a vicious disposition, and wont to kick, and that the 
 owner knew of it at the time he allowed the horse to sttay into the 
 highway '(^). Where cattle affticted with a contagious disorder 
 trespassed upon an adjoining pasture and infected other cattle there 
 with the disease, it was held that the owner of the trespassing 
 beasts was responsible for the damage arising from the spread of the 
 
 {d) Davies T. Mamn, 10 M. & W. 549. 248. Bank of Ireland v. Trustees of 
 
 Mayor of Colclmter t. Broohe, 7 Q. B. Evans's Chanties, 5 H. L. C. 411. 
 376. (g) Goio T. BwrUdge, 13 C. B., N. S. 
 
 (e) Taff V. Warman, 5 C. B., N. S. 430 ; 32 Law J., C. P. S9. TMs is not 
 
 585. Scott T. Dub. & Wick. Bail, Go., 11 necessary where the form of action is 
 
 Ir. C. L. R. 396. trespass, Lee v. Biley, 34 Law J., C. P. 
 
 (/) Greenland v. CliapUn, 5 Exch. 212. 
 
SECT. l.J AND INJURIES NOT ACTIONABLE. 23 
 
 disorder, as well as for the injury to the grass and herbage (A). But 
 the mere fact of the defendant's scabby sheep getting amongst the 
 plaintiff's healthy flock, and infecting them with the disorder, 
 establishes no cause of action, imless it be proved that the de- 
 fendant knew them to be infected, and neglected to take proper 
 and reasonable precautions to prevent them from getting mixed 
 with healthy flocks (i), -or that he/ laiowingly and wilfully turned 
 them out on some common or waste, &c., or exposed them for sale 
 in a public market or private sale-yard, &c. (/). 
 
 If the owner of a dog allows the dog to stray away and trespass 
 on his neighbour's land, and the dog worries and kills the neigh- 
 bour's sheep, the owner of the dog is not responsible at common law 
 for the damage done, as the worrying and killing of sheep is, it is 
 said, not in accordance with the ordinary instinct of the animal, and 
 would not in the ordinary sequence of events be expected to result 
 from a dog being allowed to stray away from his master's premises; 
 but, if the dog has previously worried sheep with the knowledge of 
 the owner, the law throws upon the latter the duty of keeping the 
 animal on his own premises, and not suffering him to go at large (Jc). 
 But so far as injuries to cattle and sheep by dogs are concerned, 
 this is altered by the 28 & 29 Vict. c. 60 (l). The word " cattle " 
 in this Act includes horses and mares (m). The mere keeping of an 
 animal of a fierce nature, such as a tiger or bear, or a dog known 
 to be wont to bite, is unlawful, and, therefore, if any person is 
 bitten or injured by such an animal, an action is maintainable 
 against the person who keeps it (n). 
 
 LiaMlity of the masthr for the negligence of his servant. — Every 
 servant acting in the execution of his master's business represents 
 the master himself, and his acts are, in contelnplation of law, the 
 acts of his master. This rule of law applies not only to domestic 
 servants, who have the care of carriages, horses, and other things 
 in the employ of the family, but to other servants whom the 
 master or owner selects and appoints to do any work, or superintend 
 any business, although such servants be- not in the immediate 
 employ, or under the superintendence, of the master. As, for 
 instance,' if a man is the owner of a ship, he himself appoints the 
 master, and he desires the master to appoint and select the crew; 
 the crew thus become appointed by the owner, and are his servants 
 for the management and government of the ship, and if any damage 
 
 (K) Andrews Y. Biiclcton,lS:tt. 1^2. chievous propensity for pursxiing and. 
 
 ' (i) Cooke t. Waring, 32 LawJ., Exeh. destroying game, Read v. Edmwrds, 17 
 
 262. C. B., N. S. 245 ; 34 Law J., 0. P. 31. 
 
 {j) See ante, pp. 3, 4. (Q And as to sheep only, in Ireland, 
 
 Qc) Anon. Dyer, pi. 162. Baker v. by 25 & 26 Vict. c. 59. 
 
 Weiberly, Het. 171. Jenkins y. Turner, (m) Wright\.Pearson,'L.'R. 4 Q.B. 582. 
 
 Ld. Rajm. 109. Card v. Case, 6 0. B.. (n) May y. Burdett, 9 Q. B. 112? Cox 
 
 622. As to dogs known to Laye a mis- v. Burbidge, 13 0. B., N. S. 440. 
 
24 ■ ACTIONABLE WKONGS, [CHAP. I. 
 
 ■ happens through their default, it is the saine as if it happened 
 through the immediate default of the owner himself So, the same 
 principle prevails if the owner of a farm has it in his own hands, 
 and he does not personally interfere in the management, hut 
 appoints a bailiff or hind, or hires other persons under him, all 
 of them being paid out of the funds of the owner, and selected 
 by himself, or by a person specially deputed* by him ; if any damage 
 happen through their default the owner is answerable, because their 
 neglect or default is his, as they are appointed by and through him. 
 So, in the case of a mine, if the owner employs a steward or 
 manager to superintend the working of the mine, and to hire under- 
 workmen, and he pays them on behalf of the owner, these under- 
 workmen then become the immediate servants of the owner, and 
 the owner is answerable for their default in doing any acts on 
 account of their employer (o). But whenever one man employs 
 another to execute a particular work respecting personal moveable 
 property, and that other furnishes his own servants to do the work, 
 the servants so furnished are not to be considered in the same light 
 
 ' as if they were servants selected, hired, and paid by the person 
 who orders the execution of the work. 
 
 A master is responsible for the wrongful act of his servant, even 
 if it be wilful, or reckless, or malicious, provided the act is done by 
 the servant witjiin the scope of his employment, and in further- 
 ance of his' master's business, or for the master's benefit (p) ; but if 
 the servant, at the time he does the wrong, is not acting in the 
 execution of the master's business, and within the scope of his em- 
 ployment, as his servant, biit is carrying into effect some exclusive 
 object of his own, the master wiU not be answerable for his act- 
 Thus it is said, " if I command my servant to distrain, and he ride 
 on the distress, he shall be punished, and not I " (q). So, " if my 
 servant, contrary to my will, chase my beasts into the soil of 
 another, I shall not be punished (r) ; and if my servant, without 
 my knowledge, put my beasts in another's land, my servant is the 
 trespasser, and not I, 'because, by the voluntary putting of the 
 beasts there without my assent, he gains a special property for the 
 tiipe, and so to this purpose they are his beasts " (s). 
 
 But where the servant, though acting contrary to his duty to his 
 master, is nevertheless acting in the course of his employment, the 
 master will be answerable for his misconduct (t). Thus, where a 
 partially intoxicated passenger in an omnibus refused to get out 
 and to pay his fare when the omnibus arrived at its destination, 
 
 (o) Laugher t. Pomter, 6 B. & C. 554. (r) Bro. Abr. Trespass, pi. 435. 
 
 SalyeUj. Tyrer, 28 Law J., Q. B. 52. (s) 2 KoU. Abt. 553. 
 
 (p) IiuzzeyY.Field,2Cv.M..&,'B.iZ2, {t) See further, as to injuries from 
 
 ,\'-sr > HT ■ ,. -, negligence, post, ch. 8, B. 2. . 
 
 (9) ^ oy B Maxima, ch. 44. 
 
SECT. l.J AND INJURIES NOT ACTIONABLE. 25 
 
 and the conductor dragged him out violently and recklessly, and 
 caused him to fall under the wheel of a passing cab, it was held 
 that there was evidence for the jury of the wrongful act having been 
 done by the servant in the course of his employment about the 
 master's business, and the omnibus proprietor was made responsible 
 for the injury (u). So, where a porter of a railway company so 
 negligently managed a truck containing luggage that a portmanteau 
 fell from it and injured the plaintiff, it was held that the railway 
 company were responsible, although the plaintiif had neither 
 arrived nor was going by the defendant's line, and was merely passing 
 along a platform used in common by three railway companies (v). 
 
 Wherever the master intrusts a horse, or carriage, or anything 
 which may readily be made an implement of mischief, to his servant, 
 to be used by him in furtherance of the master's business, or for the 
 execution of his orders, the master will be responsible for the negli- 
 gent management of the thing intrusted to the servant, so long as 
 the latter is using it or 4ealing with it in the ordinary course of his 
 employment. "Where the master was riding along a public high- 
 way with a mounted groom behind him, and the master having 
 suddenly quickened his pace, the groom. spurred his horse to keep 
 up with him, whereupon the horse struck out with his hind legs 
 and kicked a waggoner who was walking In the road at the head 
 of his team, it was held that the master was responsible for the 
 injury (x). 
 
 In all cases of negligent and improvident driving by a servant 
 employed to drive, the master will be responsible if the servant 
 was driving about the master's business, or using the master's 
 horses and carriage for the master's benefit ; and the master cannot 
 exonerate himself from liability by showing that the servant was 
 acting in disobedience of his orders. Where, therefore, an omnibus 
 company gave written instructions to their drivers, " to drive at a 
 steady pace, and not on any account to race with or obstruct other 
 omnibuses," and a driver disobeyed these instructions, and wUfuUy 
 drew across the road to obstruct another omnibus, and ran against 
 it and upset it, it was held that the instructions given by the 
 omnibus company to their servants could not exonerate the company 
 from responsibility for the careless, wilful, or malicious acts of such 
 servants whilst carrying passengers for the benefitof the company (^). 
 So, where the carter of a contractor, in defiance of his master's 
 orders, left his cart standing in the street while he went away for 
 
 (u) Seymour v. Qreermood, 6 H. & N. L. E., 6 Q. B. 73. 
 359 ; 7 'lb. 355 ; 30 Law J., Bxch. 189, (x) NoHhy. Smith, lOO.B., N.S. 572. 
 
 327, qualifying M'Manus v. Crkket, 1 (y) Limpvs t. Lomd. Qen. Om. Co., 1 
 
 Bast, 107. H. & C. 526 ; 32 Law J., Exch. 34. Belts 
 
 (v) Tebbuttv. Bristol & Exeter Railway, \. Be Vitre, L. K,, 3 Ch. App. 441 ace. 
 
26 ACTIONABLE WEONGS, [CHAP. I. 
 
 dinner, and the horse ran away and injured the plaintiff's railings, 
 it was held that the contractor was responsible (z). Where, how- 
 ever, both the party injured and the person inflicting the injury 
 are fellow-servants in the same employment, the master is generally, 
 as we shall presently see, exempt from liability (a). 
 
 Indemnification of the master hy the servant. — If damages have 
 been recovered from the master by reason of the servant's negli- 
 gence in doing the master's work, or in executing his orders, these 
 damages may be recovered by the master from the servant, and 
 the . verdict and judgment in the action against the master are 
 evidence of the amount of these damages, but not of the circum- 
 stances under which they were recovered (&). If the captain of a 
 ship engages in smuggling transactions, and thereby causes the ship 
 to be forfeited and condemned, he is responsible in damages to the 
 shipowner for causing the latter to lose his property (c). 
 
 Fraud and falsehood are mala in se, and wrongful in the eye of 
 the law, so that if damage results therefrom, there is the damage 
 and wrong necessary to create a cause of action. " An action cannot 
 be supported for telling a bare naked lie, where no loss or damage 
 is caused by the lie, but if it be attended with damage, it then 
 becomes the subject of an action " (d). Fraud may consist in the 
 affirmance of somethiag not true within the knowledge of the 
 affirmant, or by the suppression of something which is true, and 
 which it was his duty to make known (e). 
 
 If A fraudulently makes a representation which is false; and 
 which he knows to be false, to B, meaning that JB shall act upon it, 
 and £, believing it to be true, does act upon it, and thereby suffers 
 damage, JB may maintain an action against A for the deceit, there 
 being here that conjunction of wrong and loss which entitles 
 an injured and suffering person to compensation in damages (/). 
 Where the father of the plaintiff went to the defendant, a gun- 
 maker, and told him that he wanted a gun, safe and fit to use, for 
 ■ the plaintiff, his son, and the defendant gave the father a false and 
 fraudulent warranty with a gun which he sold and delivered to him 
 for the use of the plaintiff, and the plaintiff was injured by the 
 bursting of the gun in his . hand, it was held that, there being here 
 both fraud and damage' the result of that fraud, not from an act 
 remote and consequential, but one contemplated by the defendant 
 
 (z) Whatman v. Peanon, L. E., 3 0. 131 ; 30 Law J., Eich. 55. Croke, J., 
 
 P. 422. BaMey t. MerreU, 3 Buletr. 95. 
 
 (a) Post, oh. 8, s. 1. (e) HorsfaU v. Thomas, 1 H. & C. 90 ; 
 
 (5) Oreen v. New River Co., 4 T. R. 31 Law J., Exch. 322. See Zee v. Jonei, 
 
 590. 34 Law J., C. P. 131. 
 
 <e) Blemtt v. Hill, 13 East, 12. (/) Com. Dig. Action on the Cage for 
 
 (d) Kenyon, C. J., Pasley v. Freeman, a Deceit (A 9), (A 10). PasUy T. Free- 
 
 3 T. E..,65, Collins Y.. Cam, 6 H. & N. man, 3 T. K. 51. Gerhm-d v. Bates, 2 
 
 Ell. & Bl. 489 ; post, ch. 18. 
 
SECT. l.J AND INJURIES NOT ACTIONABLE. 27 
 
 at the time as one of its results, the defendant was responsible to 
 the plaintiff for the injury he had sustained {g). 
 
 Where the defendant wrongfully and maliciously caused certain 
 persons to refuse to deliver goods to the plaintiff, by asserting that 
 he had a lien upon them, and ordering those persons to retain the 
 goods until further orders from him, he well knowing at the time 
 that he had no Hen, it was held that the action was maintainable, 
 though the persons who had the goods were under no legal obliga- 
 tion to obey the orders of the defendant, and their refusal was their 
 own spontaneous act (Ji). 
 
 A refusal to obey the 'lawful decree of a court of justice is a wrong; 
 and if a party is thereby prejudiced, or impeded, or hindered in the 
 exercise of his legal rights, there is that conjunction of wrong and 
 damage which will support an action (i). 
 
 Malicious injuries. — The foimdation of every action of tort is a 
 wrongful act, but it need not be malicious, for malice is not a 
 necessary ingredient in a wrong. An imprisonment of the person, 
 for example, a battery, or a trespass on land, may be committed 
 without any express or implied malice, and yet an action 
 for damages may be maintaiued (^). But every malicious act is 
 wrongful in itseK in the eye of the law, and if it causes hurt or 
 damage to another, it is a- tort, and may be made the foundation of 
 an action. Malice may be proved by evidence of personal hostility 
 and spite entertained, against the injured party, or of ^ny other 
 corrupt or improper motive (l). If a free burgess of a corporation 
 or any other person haviag an undoubted right at law to give 
 his vote at an election of a burgess or knight to serve in par- 
 liament, be maliciously hindered or impeded in the exercise 
 of his right, an action for damages is maintainable against the dis- 
 turber (m). Any person has a right to stand for a place in par- 
 liament, or to offer himself as a candidate for a vacant office ; and 
 if an election takes place, and it becomes difficult to determine 
 who has the majority, he is entitled to demand a poll ; and if the 
 public officer who ought to have granted the poll maliciously denies 
 it, he is liable to an action for substantial damages (n) ; for if public 
 officers will maliciously infringe men's rights, and " refuse to receive 
 a vote which the party tendering has a right to give, and if an action 
 for it comes to be tried before me," observes Holt, C.J., " I wiU, 
 direct the jury to make them pay well for it " (o). In order to 
 
 {g) Lamgridge v. Levy, 2 M. & W. 529. {Tc) Hogers v. Bagendro Dvit, 13 Moore, 
 
 Levy y. £angridge,4: lb. S3S. See Oeorge P. 0. C. 209. 
 
 V. Shwington, L. E., 5 Eich. 1. (.1) Tozer y. Child, 7 Ell. & Bl. 381. 
 
 {h) Green -v. Button,'^ C. M. & K. 707. im) Holt, C.J., AsUy r. White, 2 Ld. 
 
 See Wren v. Wdld, L. E. 4 Q. B., 730. Eaym. 954. 
 
 (i) Ferguson v. Earl of Kinnoul, 9 CI. (») Starling 7. Turner, 2 Ley. 50. 
 
 & Fin. 311. (o) AsKby v. White, 2-Ld. Kaym. 958. 
 
 Herring y. Finch, lb. 250. 
 
28 ACTIONABLE WKONGS, [OHAP. I. 
 
 maintain the action, the plaintiff must show that the refusal was 
 founded in malice ; for "if the returning officer has acted honestly 
 and uprightly, according to the best of his judgment, he is not 
 amenable to an action " (p). 
 
 The functions of a returning officer are not wholly ministerial, 
 but are partly judicial and partly ministerial ; and a judicial of&cer 
 cannot be made responsible for an erroneous or wrong judgment, 
 where he has acted bond fide in a matter of which the law gives 
 him cognizance (g"). " It cannot be contended that he is to exercise 
 no judgment, no discretion whatever, in the admission or rejection 
 ' of votes, and he could not discharge his duty without great peril 
 and apprehension ifj in consequence of a mistake, he became liable 
 to an action " (r). 
 
 In the celebrated case of Ashly v. White, where an action was 
 brought against a returning oflS.cer for maliciously hindering an 
 elector in the enjoyment of his electoral right, by refusing to 
 receive his vote at an election. Lord Holt observes, " I do not find 
 that the defendants did by force of arms drive the plaintiff away 
 from the election, nor by menaces deter him, but I find they did 
 maliciously hinder him ; and so it is charged by the plaintiff in 
 his declaration, and so found by the jury, that they did it by fraud 
 and malice. And so the defendant is an offender within the very 
 words of the statute of Westminster " (s). 
 
 Malicious procurement of loss or damageto another, ■whether brought 
 about by libel or slander (post, chap. 17), or by instigating servants 
 to leave their service or desert their employment, to the injury of 
 their masters, or by maliciously inducing a party to a contract to 
 break his contract, to the injury of the person with whom the con- 
 tract was made, creates that conjunction of wrong and damage which 
 will support an action (t). If one person incites another to commit 
 perjury, or forgery, or a nuisance, or to bring a false charge or 
 accusation, and the accused party is acquitted of the charge, the 
 instigator of the wrongful act is responsible for aU its injurious 
 conseqiiences (u). Thus, where the mistress of a wine-shop brought 
 an action against the defendant for procuring a soldier and others 
 to come into her house with a man dressed in woman's clothes, and 
 there conduct themselves with indecency, and collect a crowd, and 
 raise a cry of "bawdy house,'" by reason whereof the mob threw 
 stones and broke the plaintiff's windows, and damaged and destroyed 
 
 {p) Abbot, C.J., Oullen v. Morns, 2 Bl. 381. 
 
 Stark. 587. (t) Lumley y. Gye, 2 Ell. & Bl. 228. 
 
 (g) Post, ch. 16. Green y. Button, 2 C. M. & E. 707. 
 
 [r) Abbot, C.J., CuUen v. Morris, 2 («) Com. Dig. Action upon the Case, A. 
 
 Stark. 587. Coxe v. Smith, 1 Lev. 119. Fitzjohn v. 
 
 («) Lord Holt's judgment in AsJiiy vT MacUnder, 9 C. B., N. S. 616 ; 30 Law 
 
 Il'/iite ; cited in Toner v. Child, 7 EU. & J., C. P. 257. 
 
SECT. l.J AND INJURIES NOT ACTIONABLE. 29 
 
 her furniture, it was held that the defendant was responsible for all 
 the damage sustained by the plaintiff, although he did not himself 
 appear upon the scene, or join in the cry (x). 
 
 Abuse of authority by governors of colonies. — An of&cer represent- 
 ing his sovereign in all functions, civil and military, may be made 
 to answer for an abuse of his authority, and for the exercise of 
 arbitrary power, above and beyond the law. An act of authority, 
 lawful in itself if rightly done, may become wholly unlawful and 
 unjustifiable by the harsh, oppressive, and cruel manner in which 
 it is executed ; for, where the law authorises an act to be done, it 
 does not protect unnecessary violence or cruelty in the doing of 
 
 it(2/). 
 
 Every governor of a colony is responsible in damages for unlaw- 
 fully spoiling, plundering, or imprisoning Her Majesty's subjects. 
 But whatever is a justification in the place where the thing is done, 
 may be pleaded as a justification in the place where the cause of 
 action is tried (2) ; and if the colonial legislature pass an act of 
 indemnity which is assented to by the crown before any action is 
 commenced in this country, such act of indemnity is pleadable 
 in bar to an action in the courts here, although the governor was a 
 necessary party to the passing of the act and was himself interested 
 in it (a). Where a carpenter, who followed a train of artillery, but 
 who was not subject to martial law, brought an action against 
 the Governor of Gibraltar for an assault and battery, and showed 
 that he had been tried by court-martial, and sentenced to be 
 whipped, and that the governor confirmed the sentence, which 
 was then carried into effect, it was held that the action was 
 maintainable against the governor, by reason of his participa- 
 tion in the unlawful whipping, and the plaintiff recovered 700^. 
 damages (&). 
 
 Abuse of authority on the part of naval and military officers. — An 
 action is not maintainable by a subordinate officer against his 
 superior officer for an act done in .the course of discipline, and 
 under powers incident to his position, (c); but for a corrupt and 
 malicious abuse of authority a commanding officer is responsible. 
 Every superior officer has a right to imprison his subordinate officer 
 for any military offence, and bring him to a court-martial ; but 
 this gives him no right to act in an arbitrary and oppressive 
 manner, and to inflict a prolonged, harsh, and cruel imprisonment, 
 without bringing the person imprisoned to trial. If an officer has been 
 "uilty of a scandalous abuse of a public trust,, he will not be 
 
 Ix) Plunha T. dilmore, Fortesoue, 211. {a) PhiUips r. Eyre^ L. B., 4 Q. B. 225 ; 
 
 y Sutherland v. Mwray, 1 T. B. 538 ; 6 Ihd. 1 ; 38 L. J., Q. B. 113 
 
 DOS* oh 5 (*) ^' °"**"^> "'^^^ Co-wp. 175. 
 
 (z) Mostyn v. Pahrigas, Cowp. 161. (c) Johnstone v. Sutton, 1 T. R. 544. 
 
30 ACTIONABLE WRONGS, [CHAP. I. 
 
 allowed to shelter himself under the thin veil of legal forms, nor 
 escape under cover of a justification, the most teohnically regular, 
 from the consequences of his wrong-doiiig (d). 
 
 A naval or military of&oer is not responsible for acts 'done by 
 him in obedience to the commands of his superior officer, or of the 
 government he serves, unless the commands are manifestly illegal. 
 The justification of an ofiicer sued for acts of force and violence 
 may be made to rest upon a subsequent ratification of his acts by 
 his government, as well as upon a precedent authority (e). 
 
 Where two vessels were chartered by the government for a naval 
 expedition, and the captains of the vessels were to pay implicit 
 obedience to the orders of the ofi&cers commanding the expedition, 
 and one of the vessels sustained damage from the other whUst 
 acting in obedience to orders, it was held that the owner of /the 
 vessel doing damage could not be made responsible to the owner of 
 the vessel to which the damage was done, if the damage was the 
 natural* result of the execution of the orders given, and was not 
 caused by negligence or want of nautical skill in the execution of 
 the orders (/). 
 
 Where commissioners of public works, exercising powers given 
 to them by statute, and acting within their jurisdiction, neverthe- 
 less act in an arbitrary, wanton, or negligent and oppressive manner, 
 and inflict unnecessary injury upon private individuals, they are 
 responsible for their wrong-doing of what might have been rightly 
 done, and cannot protect themselves under cover of their statutory 
 powers from the consequences of their negligence and miscon- 
 duct (ff). 
 
 Torts committed ly British subjects im, foreign cowwifries.— Actions 
 may be maintained in this country for wrongs committed by one of 
 the Queen's subjects against another of her subjects in a foreign 
 country, if all that is sought is reparation in damages, or satisfac- 
 tion to be made by process against-the person of the wrong-dofir or 
 against his effects, within the jurisdiction of the court (h). Thus, 
 when Captain Gambler pulled down some sutlers' houses in Nova 
 Scotia, who supplied spirits to his sailors, and afterwards inadver- 
 tently brought one of the sutlers home in his own ship, and the ' 
 sutler, as soon as he landed, brought an action against the captain, 
 it was held that the action was maintainable (i). But, in order to 
 support an action in this country for an injury sustained abroad, it 
 must, it is apprehended, be shown that the act producing damage 
 was a wrongful act by the law of the country in which it was done; 
 
 (d) Ld. Mansfield, Wall v. M'Nwrmra, (g Leader y. Moxon, 2 W. Bl. 296 ; 
 1 T. E. 536. 3 Wils. 461 ; post, ch. 16, s. 1. 
 
 (e) £won y. Denman, 2 Exoh. 167. (h) Scott r. Lord Seymow, 1 H. & C. 
 (/) HodgUnson V, pernio, 2 C. B., N. 219 ; 31 Law J., Eich. 457. 
 
 S- 436- (i) Pgr Ld. Mansfield, Cowp. 180. 
 
SECT. 1.] AND INJURIES NOT ACTIONABLE. 31 
 
 for if it was justifiable there, the justification would, it is appre- 
 hended, be available here (k). 
 
 SuspeTision of the remedy ly action when the tort amounts to felony. 
 — Whenever a wrongful act amounts to a felony, the remedy for 
 the tort, or civU wrong, is postponed until the requirements of 
 public justice have been satisfied by the prosecution of the 
 olfender (Z). " The policy of the law," observes Lord Ellenborough, 
 " requires, that before the party injured by any felonious act can 
 seek civU redress for it, the matter should be heard and disposed of 
 before the proper criminal tribunal, in order that the justice of the 
 country may be first satisfied in respect to the public offence ; and after 
 a verdict, either of acquittal or conviction, the judgment is so far 
 conclusive in any collateral proceeding quoad the particular matter, 
 that the objection is thereby removed of bringing that sub judice 
 in a civil action, which was a proper subject-matter of a criminal 
 prosecution. Where, therefore, the defendant has been tried and 
 acquitted of a felony, the objection founded upon the general policy 
 of the law does not apply. — The only difference which can be 
 suggested between the case of a prior conviction and that of an 
 acquittal is, that the acquittal may have been brought about by the 
 defendants colluding with, the prosecutor ; but if the acquittal be 
 shown, either in pleading or by evidence, to have been obtained 
 by collusion, it would be put aside, and the objection would stni 
 remain. All the mischief, therefore, that could result from extendi 
 ing the same rule to cases of acquittal which has established the 
 right to sue after a conviction of the felon, is done away by letting 
 the defendant in to show that the judgment of acquittal was 
 obt&meA per fravdem" (m). -s 
 
 The doctrine of the merger of a trespass in a felony, therefore, only 
 means that all redress by action for the private injury is suspended 
 until the criminal law has been put in force. It was never intended 
 to take away redress absolutely^ after the ends of public justice 
 were attained, but only to stimulate, the party injured to bring the 
 offender to trial for the public offence, and to prevent any com- 
 promise thereof. Where, therefore, a robber had been convicted 
 of felony for breaking into a house and stealing 250Z., it was held 
 that an action for the trespass and the taking of the money was 
 maintainable against him after his conviction for the felony (n). 
 And if money has been taken under a claim of right, and under 
 
 (Jc) Per Ld. Mansfield, Mottynv. Fa- E., N. S. 761 ; 2 F. & F. 791. TUsis 
 
 Irigat, 1 Cowp. 175 ; 1 Smith's L. 0. otherwise, it seems, in the United States. 
 
 607. Ddbree r. Napier, 2 Bing. N. C. See Hilliard on Torts, p. 71, et seq. 
 
 797. Duke of Brunswick v. King of (m) Crosby v. Leng, 12 East, 413 ; 1 
 
 Hanover, 6 Bear. 1. PhiUi/ps t. Eyre, Hale, P. C. 546. 
 
 amie, p. 29. Contra Wightman, J., HcoU in) Dawhes v. Covendgh, Styles, 346. 
 
 T. Lord Seymour, ut sup. ' Markham v. Oobb, W. Jones, 147. 
 
 (Z) WeUock T. Constantine, 7 Law T, 
 
32 ACTIONABLE WRONGS, [CHAP. I. 
 
 circTimstances manifestly not amounting to a felony, an action may 
 be brougM for the money, notwithstanding that the criminal law 
 has not been put in force ; and it does not lie in the mouth of the 
 defendant to say that he is a thief, and that he stole the money, if 
 the surrounding circumstances do not establish a case of felony, for 
 " nemo allegans suam turpitudinem est audiendus " (o). And if 
 the injured party has preferred a bOl of indictment, .which has been 
 thrown out, or not proceeded with, by the suggestion of the judge, 
 he has satisfied the requirements of the law- in respect of the prose- 
 cution of the public offence, and is remitted to his civil remedy (p). 
 
 This rule of law prohibiting an action for the recovery of stolen 
 property or its value, until the criminal law has been put in 
 force, does not extend beyond the person robbed, and the thief 
 or the felonious receiver ; for if stolen property is innocently taken 
 in pledge by a pawnbroker, or purchased out of market overt, 
 an action may be brought against the pawnbroker or purchaser 
 before the institution of any prosecution for the felony (q). 
 
 And whenever the death of a person has been caused by any 
 wrongful act, neglect, or default, an action for damages is main- 
 tainable, although the death has been caused under such circum- 
 stances as amount in law to a felony (r). 
 
 Cheating hy forgery. — If a forgery has been committed, and the 
 party injured has prosecuted for the offence, he may maintain an 
 action for the recovery of the money of which he has been 
 defrauded. Where the plaintiff's declaration of his cause of action- 
 set forth that, the plaintiff's servant having 65^. of the plaintiff's 
 money in his custody, the defendant, in order to defraud the plain- 
 tiff of the money, procured a letter to be written in the name of 
 the plaintiff, directed to his said servant, requiring the latter to pay 
 the money to the defendant, and counterfeited the signature of the 
 plaintiff to the letter, and also the plaintiff's seal, and caused the 
 said counterfeit letter to be delivered to the plaintiff's servant, as 
 being the plaintiff's* letter, and thereby obtained possession of the 
 plaintiff's money, and converted it to his own use, it was held that 
 there was a good cause of action (s). " If a man forge a bond in 
 my name, I can have no action, unless I am sued upon the bond ; 
 but then I may for the wrong and damage, though I can avoid the 
 bond by plea. But if it were a recognizance or a fine, I should 
 have a writ of deceit presently " {t). 
 
 (o) Lutterell v. BeyneU, 1 Mod. 283. 608. Lee v. Bayes, 18 0. B. 599 ; post, 
 Stone V. ^a/rih, 6 B. & C. 564. ch. 7, s. 2. 
 
 {p) nvdley and West Bromwkh Bank. (r) 9 & 10 Vict, c 93, s. 1. 
 
 Co. V. Spitth, 1 Johns. & H. 14. (s) Tracey v. Veal, Cro. Jac. 223. 
 
 (s) Whiter. Spettigue, 13 M. & W. («) 43 Ed. 3, 20. Waterer r. Freeman, 
 
 Hob. 266. 
 
SECT. 1.] AND, INJURIES NOT ACTIONABLE. 33 
 
 Actions for Ugamy. — ^Where the plaintiff declared that she was a 
 virgin, and sought for in marriage, and that the defendant, pretend- 
 ing to be a single person, made love to her and married her, when 
 in truth he waa married to another woman, the court held that the 
 action lay. But, bigamy being now made a felony by statute, a 
 prosecution for the public offence is a condition precedent to the 
 right of action {u). 
 
 Actions for misdemeanours. — Where the wrongful act amounts 
 only to a misdemeanour, the remedy for the Aurong is not suspended 
 until the offender has been brought to trial for the indictable 
 offence ; but the injured party may at once bring an action for 
 damages, whether he does or does not subsequently prosecute (x). 
 This is the case where the money of the plaintiff has been obtained 
 by the defendant by false pretences and converted to his own use, 
 and the action is brought to recover back an equivalent for the 
 money fraudulently obtained. Where persons conspire together to 
 procure a forgery of title deeds, and give them in evidence on a 
 particular trial, and the deeds are forged and given in evidence, and 
 any person's land is thereby lost, all the parties to the conspiracy 
 are liable to an action for damages, as well as to an indictment for 
 misdemeanour (y). If two men conspire to make it appear th^t a 
 third person has been guilty of a felony, by placing stolen goods 
 upon his premises, and he is in consequence thereof convicted, an 
 action for damages would be maintainable against the conspirators, 
 whether the parties had or had not been indicted for the misde- 
 meanour (»). 
 
 Public and private wrongs. — For an injury which affects all 
 persons alike, such as an obstruction in a public thoroughfare, merely 
 impeding the right of passage, and rendering the way less con- 
 venient, the only mode of proceeding is by indictment. For any 
 special injury which affects an individual beyond his feUows, such 
 as being delayed in making a journey, and compelled to take a cir- 
 cuitous course {a), or driving against the obstruction during a dark 
 night, compensation in damages may be obtained (6). 
 
 Of the legal maxim that there is no wrong without a remedy. — The 
 maxim of the law, " ubi jus, ibi remedium," has at aU times been 
 considered so valuable, that it gave occasion to the first invention 
 of that form of action called an action on the case, where the 
 novelty of the complaint is no objection to the action, provided an 
 injury cognizable by law be shown to have been inflicted on the 
 plaintiff (c) ; for " this form of action was introduced for the reason 
 
 (a) Anon. Skin. 119. (V) Wilkes v. HungeTford Market Co., 
 
 (x) Reg. V. Hardey, 14 Q. B. 541, 2 Bing. N. C. 281 ; post, ch. 4, s. 2, 
 
 (j/) Pitzh. N. B. 116, D. Damages. 
 
 (z) Post, ch. 13. (c) See the note to AsUy v. White, 1 
 
 (a) Oreasly T. Codlmg, 2 Bing. 263. Smith's L. 0. 213—223. 
 Rose V, MUes, post, ch. 4. 
 
34 ACTIONABLE WRONGS. [CHAP. I. 
 
 ihat the law would never suffer a wrong and a damage without a 
 remedy " (d) ; but there are many cases where persons have suffered 
 serious injury from the acts and doings of others of which the law 
 takes no cognizance. An action, for example, cannot be main- 
 tained against a commanding officer in the army or navy for 
 maliciously accusing, arresting, and bringing to a court-martial a 
 subordinate of&cer, however great may have been the perversion of 
 his authority, and however false and unfounded the charge (e) ; 
 and a wife has no remedy for being deprived of the society of her 
 husband by slander, not amounting to a chaige of adultery, causing 
 him to desert her, and treat her with cruelty (/). No action will 
 lie against a witness for uttering false statements in the course of a 
 judicial proceeding, even though it is alleged to have been done 
 falsely and maliciously, and without any reasonable or probable 
 cause, the proper course being a prosecution for perjury (ff). 
 
 Damages are not recoverable from an infant for a false and 
 fraudulent representation that he was of full age, whereby the 
 plaintiff was induced to lend him money (post, ch. 18) : nor from 
 a married woman and her husband for a false and fraudulent repre- 
 sentation by such married woman that she was a feme sole, whereby 
 she induced the plaintiff to make, a contract with her, which he 
 could not enforce by reason of her being married (h) ; or that the 
 signature to a bill of exchange was her husband's signature, whereby 
 the plaintiff was induced to advance money upon the bill [i) ; nor 
 from a man who has seduced a female infant, not being at the time 
 of her seduction ia her father's service, actual or constructive, even 
 though the father be therefore obliged to provide nurses and medical 
 attendance, for her, and to maintain her (k). 
 
 Waiver of tort. — If a man has taken possession of property, and 
 sold or disposed of it without lawful authority, the owner may 
 either disaffirm his act and treat him as a wrong-doer, and sue him 
 for a trespass or for a conversion of the property ; or he may affirm 
 his acts and treat him as his agent, and claim the benefit of the 
 transaction ; and if he has once affirmed his acts and treated him 
 as an agent, he cannot afterwards treat him as a wrong-doer, nor 
 can he affirm his acts in part, and avoid them as to the rest. If, 
 therefore, goo(is have been sold by a wrong-doer, and the owner 
 thinks fit to receive the price, or part thereof, he ratifies and adopts 
 the transaction, and cannot afterwards treat it as a wrong (J). 
 
 (d) Willes, C.J., Winsmore v. Greenr hwst, 9 Exch 429 ' 
 
 iemk Willes, 577. ({) Wright v. Leonwrd, 11 C. B., N. S. 
 
 (e) Sutton V. Johnstone, Johnstone v. 258 ; 30 Law J C P 365 
 
 Svtton,! Bro. P. C.^ 76 ; 1 T. E. 512. (k) (MnneU v! WeUs, 8 Sc. N. R. 741 ; 
 
 (/) Lynch v. Knighl, 9 H. L. C. 577. 7 M. & Gr. 1033. 
 
 (g) Erie, C.J. , Barber t. Lesiter, 7 C. {I) Brewer v. Spwrrow, 7 B. & C. 310. 
 
 B., N. S. 187. / HiAA/^'{ Jt^ww 30 Zythgge v. Vernon, 5 H. & N. 180 j 29 
 
 {h) Im). Adel/ph. Loan Asso.v. Fair- Law J., Exch. 164. 
 
SECT. 2.] STATUTORY OBLIGATIONS — BY-LAWS. 35 
 
 SECTION IL 
 
 OF EIGHTS, DUTIES, AND OBLIGATIONS CREATED BY BY-LAW AND BY 
 
 STATUTE (m). 
 
 By-laws founded on statute, imposing penalties for the suppression 
 of certain torts, are cumulative upon the ordinary common law 
 remedy by way of action, and do not prevent a plaintiff who has 
 sustaiaed damage from an injury to his property or person or an 
 infringement of his legal right, from bringing his action just the 
 same as if no by-law had ever been made, for " wherever an action 
 lies at common law, the penalty is accumulative " (w). By-laws 
 imposing penalties, and establishiag a summary mode of proceeding 
 for the recovery of such penalties, are regarded with the utmost 
 jealousy, and must be made in strict pursuance of statutory 
 authority, more especially where they restrain the freedom and 
 liberty of the subject beyond the requirement of the ordinary law. 
 The power of making them is an extraordinary power, and wUl 
 be narrowly construed. " We must," observes Alderson, B., " look 
 closely to the powers given by the legislature, to see whether the 
 by-law is within the scope of the authority, or whether it does not 
 relate to matters which ought to be left to the general law of the 
 land, by which the general conduct of the Queen's subjects is 
 regulated" (o). 
 
 By-laws of municipal corporations. — By s. 90 of the Municipal 
 Corporations Act (5 & 6 Wm. 4, c. 76), the council of any borough 
 is empowered to make by-laws for the good rule and government 
 of the borough, and the suppression of nuisances. By s. 91, aU the 
 provisions of the statute relative to offences agaiast the Act, 
 punishable upon summary con\iction, are made to apply to offences 
 committed in breach of any .by-law made by virtue of the Act (p) ; 
 and by s. 1, aU laws, statutes, and usages inconsistent with that 
 Act are repealed and annulled. By-laws of corporations "must 
 ever be subject to the laws of the realm, and subordinate thereto ; 
 and, therefore, though there is no provision for that purpose, the 
 law supplies it. And if the king, in his letters patent of incorpora- 
 tion, do make ordinances himself, yet they are also subject to the 
 
 (m) See further as to this, /losi, ch. 16. Bep. 101. Brown v. Local Board of 
 
 (n) Per car., Fawning v. Goodchild, Holyhead, 32 Law J., C. P. 25. Young 
 
 2 W. Bl. 910. Btokford t. Hood, 7 T. E. T. Bdwa/rds, 33 Law J., M. C. 227. 
 
 627. Couch T. Steel, S Ell. & Bl. 414. (p) As to summary convictions upon 
 
 (o) Colder & Hibble Nav. Co. v. PUling, by-laws, see post, oh. 15. s. 1. 
 
 14 M. & W. 87. TaUors of Ipswich, 11 
 
 D 2 
 
36 STATUTOEY OBLIGATIONS. [CHAP. I. 
 
 same rule of law " (j). The power of making by-laws for the 
 " good rule and government " of a borough has reference to the 
 government of the borough as a corporation, and the making of 
 regulations for carrying into effect the purposes for which it was 
 incorporated ; for the election of the mayor, aldermen, and coun- 
 cillors, the appointment of the officers of the corporation, and 
 the enforcement of their several duties (r) ; the management and 
 disposition of the corporate property ; the carrying on trade within 
 the municipality ; the prevention of fraud, and the sale of unfit and 
 improper commodities ; the prevention of nuisances by butchers, 
 tallow-chandlers, and persons carrying on noxious trades in crowded 
 localities ; and generally for securing fair dealing and convenient 
 arrangement amongst the shopkeepers and traders of the munici- 
 pality (s). It does not enable a town council to carry out any 
 peculiar ideas of general good government, and to impose penalties 
 on persons for the doing of thiags which are not prohibited by any 
 public statute, nor by the common law (t). 
 
 The power of making by-laws for the suppression of nuisances 
 under the above (90th) section, is confined to the suppression and 
 prohibition of acts which, if done, must necessarily and inevitably 
 cause a nuisance (post, ch. 4). It does not empower the town 
 council to impose penalties for the doing of things which may or 
 may not be a nuisance, according to circumstances. Thus, where 
 the town coimcil of a borough imposed a fine upon every person 
 who should "keep, or suffer to be kept, any swine withiu the 
 borough, between the first of May and the first of October," it was 
 held that the by-law was wholly invalid, as the keeping of a pig 
 did not necessarily create a nuisance (u). 
 
 By-laws for the government of corporations are binding upon 
 all persons who consent to become members of the corporation, in 
 ■the nature of a contract founded on mutual promises (x). They 
 are binding also on all persons who come to inhabit a municipality, 
 and to carry on trade withiu it (]/). 
 
 By-laws for the pr-evention of indecent lathing. — ^The bathing 
 clauses in the Town Police Clauses Act, 10 & 11 Vict e. 89 (s. 69), 
 incorporated into many special Acts recently passed for the govern- 
 ment and improvement of towns, enable local authorities, where 
 any part of the sea-shore or strand of any river within the limits of 
 the special Act is used as a public bathing-place, to make by-laws 
 for fixing the stands of bathing-machines on the sea-shore or strand, 
 
 (g) Norris t. Stwp$, Hob. 211 ; 1 Eoll. (u) Everett t. Grapes, 3 Law T. K., 
 
 Abr. CoEPORATiONS, e. pi. 4. N. S., Q. B. 669. See Wanstead Local 
 
 (r) BxsK V. WeslMood, 4 B. & C. 781. Board, &c. v. HW,, 13 C. B., N. S. 479. 
 
 (s)WileookonCorporations,pp.l41-146. {x) Tolaem Pme, &c. Co. v. Loder,Va 
 
 («) neg. T. TTood, 5 BU. & Bl. 55. Q. B. 765 ; post, ch. 21. 
 
 Bxg. i.Sose, 24 Law J., M. C. 130. (i/) Pierce v. BwHrum, Cowp. 270. 
 
SECT.. 2.] BY-LAWS OF' CORPORATIONS, COMMISSIONERS, ETC. 37 
 
 and the- limits withia which persons of each sex shall be 
 set down for bathing, and within which persons shall bathe, 
 and for preventing any iindecent exposure of the persons of the 
 bathers. 
 
 The statutory power here conferred, of fixing the Kmits within 
 which persons shall bathe, does not enable a town council or local 
 boaxd to impose penalties on persons bathing outside those limits, 
 without reference to the decency or indecency of the proceeding, 
 or its lawfulness or unlawfulness, by the general law of the land. 
 The clauses axe enabling, and not disabling, clauses. They were 
 framed to facilitate the providing of bathing-machines, and the 
 making of arrangements for enabling persons of both sexes to 
 undress and bathe in public places where, in the absence of such 
 arrangements, no persons could undress and bathe without in- 
 decency, and with&ut running the risk of being prosecuted for a 
 misdemeanour (z). They were not intended to impose any addi- 
 tional restraint upon bathers, beyond what is imposed by the general 
 law ; or to authorise the prohibition of bathing by town councils, 
 according to their whim or capricoi without reference to time, 
 circumstance, or locality, the lawfulness or unlawfulness of the 
 act in reference thereto, and the existence or non-existence of any 
 nuisance. Nor do they interfere with the rights of the owner of 
 the shore (a). 
 
 All restraints imposed by by-law beyond what is imposed by 
 the general law of the land are invalid,, tmless a satisfactory reason 
 is shown for them, and an express statutory authority for their 
 imposition (&). Thus, where a statute, the Local Government Act 
 1858 (21 & 22 Vict. c. 98)', enacted by s. 34 that the local board 
 might make by-laws "with respect to — ^privies and ash-pits in 
 connection with buildings," it was held that this did not authorise 
 a by-law directing all houses to be built with a back entrance, so 
 as to afford access to such ash-pit or privy (c). 
 
 By-laws iy public commissioners, local ioards, and puMic com- 
 panies. — The power of making by-laws for certain specified 
 purposes, and for imposing penalties for breach of such by-laws {d), 
 is also granted by the Companies Clauses Consolidation Act (8 Vict. 
 c. 16, ss. 124— 127), the Eailways Clauses Act (8 Vict. c. 20, ss. 108 
 —11), the Markets and Fairs Clauses Act (10 Vict. c. 14, ss. 42— 
 49), the, Commissioners' Clauses Act (10 Vict. c. 16, ss. 96 — 98)^ 
 the Harbours, Docks, and Piers Clauses Act (10 Vict. c. 27, ss. 88 — 
 90), the Towns' Improvement Clauses Act (10 & 11 Vict. c. 34, 
 
 (z) Bex T. Crunden, 2 Oampb. 89. Law J., M. C. 227. 
 
 (a) Mace v. Phileox, 33 Law J., C. P. (c) Waite v. Qarston local Bowrd, L. 
 
 124. E., 3Q.B. 5. 
 
 (6) CfflMer <fc HebbleNm. Co. v. PiMng, (d) As to the recovery of penalties 
 
 14 M. & W. 83. Young v. Edwards, 33 generally, aeepost, eh. 15, s. 1. 
 
38 STATUTORY OBLIGATIONS. [CHAP. I 
 
 ss. 128, 200—207) ; and the Town Police Glauses Act (10 & 11 
 Vict'c. 89, ss. 68—71) (e). A siimmajy mode of proceeding is 
 estaMshed for the recovery of the penaltirai imposed under the 
 authority of these statutes, but the recovery of the penalty will not 
 protect a wrong-doer from an action for damages, or from a claim 
 for compensation, wherever the commission of the penal offence is 
 in itself a tprt, and gives rise to a cause of action at common law 
 (post, pp. 39, 40). 
 
 Commissioners, or local boards acting under these statutory 
 authorities, have no general power of making by-laws affecting 
 strangers. They cannot make by-laws to carry out the general 
 powers of the statute from which they derive their authority, but 
 only the special powers enabling them to make by-laws for the 
 specified and declared purposes (/). 
 
 By-laws in restraint of trade, made by trading companies and 
 corporations ia the exercise of a power conferred upon them by 
 charter or by statute, must be reasonable and beneficial to the 
 public, or they cannot be supported (g). 
 
 A by-law may be good in part and bad in part, when the two 
 parts are entire and distinct from each other, but not otherwise (h). 
 
 There is no power to apprehend a person for the breach of a by-law, 
 in order to bring him before a magistrate, unless such, a power is 
 expressly given by statute ({). 
 
 Memediesfor the enforcement of statutory dwties and ohligatioTis. — 
 The statute of Westminster the second (1 stat. 13 Ed. 1), c. 60, 
 gives a remedy by action on the case to all who are aggrieved by 
 the neglect of any obligation or duty created or imposed by sta- 
 tute (A) ; and " in every case where a statute enacts or prohibits a 
 thing for the benefit of a person, he shall have a remedy upon the 
 same statute for the thing enacted for his advantage, or for the 
 recompense of a wrong done to him contrary to the said law" (T). 
 Wherever a statute creates a right, or a duty, or an obligation, then, 
 although it has n.ot in express terms given a remedy, the remedy 
 which by law is properly applicable to that right or obligation 
 follows as an incident (m). But when the right or duty is entirely 
 the creature of the statute, and a specific remedy is provided by 
 the statute for its enforcement, that remedy, and that only, must 
 
 (e) Cpx's Consolidation Aets, by Tayler, Jirjy, iv/pra. Rex v. NewcasUe Ooop^i, 
 As to by-laws for tlie regulation pf <fcc., 7 T. R. 548. 
 
 markets, under the Markets and Fairs (^) fteg. v. iMudie, 31 Law J., M. C. 
 
 Clauses Agt, Sqmage t. Brook, 33 La-v? J., 157. 
 
 M. C. 42, (i) OMlton 7. Lond. tS; Croyd. Bail. Co., 
 
 (f) Crompton, J., Seg. v. Wood, 5 Ell. 16 M. & W- 212. Seg. t. Mann, 23 Law 
 & BL 57, Child v. Hudson's Bay Co., % T. E. 12. 
 
 P. Wms, 208, ■ (i) 2'inqtH, 486. 
 
 ig) OwnMokers' Co. t. Fett, "Willes, (i) Com. Dig, Action upon Statute, F, 
 
 389, Cai^r 4 Pebble Nav. fo. v. Pil- (V) Maulo, jj,, Braithwaite T. Skinner, 
 
 5M, &\V.327, 
 
SECT, 2.] CUMULATIVE, EXCLUSIVE, AND ALTEKNATIVE EEMEDIES. 39 
 
 be pursued (n), unless the remedy does not cover the entire 
 right (p\ 
 
 Wherever an Act of Parliament creates a duty or obligation to 
 pay money, an action will lie for its recovery, unless the Act contains 
 some provision to the contrary {p), or provides some specific remedy, 
 or particular mode of proceeding for the recovery of the money, 
 and there is no contract or obligation to pay independently of the 
 statute. When the duty or obligation exists independently of 
 the statute, the statutory remedy is simply cumulative, and does 
 not preclude the ordinary common law remedy by way of action, 
 unless there are express words to that effect (§'). Under the Metro- 
 polis Local Management Act (25 & 26 Vict. c. 102,) ss. 77, 96, 
 vi^hich makes certain paving expenses recoverable by the vestry 
 against the present or future owner of the premises, or from any 
 tenant who subseq[uently occupies them, an unsatisfied judgment 
 against a former owner is no bar to an action against the occupying 
 tenant of a succeeding owner (r). 
 
 The remedies provided by the Friendly Societies Acts, for re- 
 dressing disputes between these societies and their members (s), are 
 cumulative upon the common-law remedy by action, where such 
 remedy exists independently of the statute, unless the right of 
 action is taken away by express legislative enactment (t). 
 
 Of tlie imposition of a peTMlty as a cumulative, exchisive, or alter- 
 native remedy, for the protection of a right, or the suppression of a 
 wrong. — Where a statute vests a right generally in a person, or im- 
 poses some new duty upon one party for the benefit of another, and 
 gives a penalty against those who infringe the right or neglect the 
 duty, and by reason of the infringement of the right, or the neglect 
 of the duty, a special and particular damage has resulted to the 
 plaintiff, the annexation by the statute of the penalty for the offence 
 recoverable by a common informer does not preclude the plaintiff 
 from his common-law remedy by action for damages {u), although 
 it is competent to him, if he is first in the field, to sue for the 
 penalty (a;). The penalty is recoverable for the breach of the public 
 duty, though no damage may have been actually sustained by any- 
 
 (ri) Stevens v. Evans, 2 Burr. 1157. Cane v. Chapnum, 5 Ad. & E. 659. 
 
 UnderUa v. Ellicomhe, M'Clel. & Y. 455. Moyd v. Surrap, L. R., 4 Exoh. 63. 
 
 Doe V Bridges, 1 B. & Ad. 859. Dun- (q) Com. Djg. Action upon Statute, G. 
 
 dalk Western RaU. Co. v. TopaJer, 1 Q. B. Chapman t. PicJcersgill, 2 Wils. 145. 
 
 667 Stevem v. Jeacocke, 11 Q. B. 741 j (r) Bermondsey {Vestry of) v. Samsey, 
 
 17 Law J., Q. B. 163. St. Pancras Vestry L. B., 6 C. P. 247. 
 
 V. Batterhury, 2 C. B., N. S. 477 ; 26 (s) Addison on Contracts, 6th ed., 
 
 I aw J OP 243 PP' ''^^ — T^i- 
 
 ^ (o) Sh^herd v.' HUU, 11 Eich. 67. («) Smden v. Bankes, 30 Law J., Q. B. 
 
 Williams J St. Pancras Vestry v. Bat- 102. 
 
 7b) Paike B ''Shepli^d v. HilU, 11 Mcyumng v. QoodchM. 2 W. Bl. 906. 
 Ex4 67 TiUon v. Wm-wich Gas Light (x) Bechford r. Hood, 7 T. K, 627, 
 
 Co., 4 B. & C. 967; 7 D. & E. 376. 
 
40 STATUTOEY OBLIGATIONS. [CHAP. I. 
 
 body, and is cumulative upon tte ordinary remedy Isj action for 
 damages. But where the statute/ creating a new duty or obligation, 
 provides a mode of obtaining compensation for priyate fecial 
 damage, and gives the amount recovered to the party grieved or 
 injured by the neglect of the statutory duty, there is' no other 
 remedy than that given by the Act, either for the public or the 
 private wrong. 
 
 Where no specific right is created and vested in the plaintiff for 
 his own benefit and advantage, and no specific duty in favour of 
 the plaintiff has been imposed, but the statute merely prohibits a 
 thing from being done under a penalty for doing it, an action for 
 damages is not, maintainable. Thus, where statutory regulations 
 were established for the management of the pilchard fishery, and 
 specific penalties appointed for the breach of each regulation, and 
 the plaintiff, a fisherman, brought an action for damages for the 
 breach by the defendant of one of the regulations, Avhereby . the 
 plaintiff lost his proper turn and station in fishing, and the defen- 
 dant was enabled to make a valuable capture of fish, which would 
 otherwise have fallen to the lot of the plaintiff, it was held that the 
 action was not maintainable, as no particular right was created and 
 vested in the plaintiff, nor any particular duty in his favour im- 
 posed upon the defendant. The latter was merely prohibited from 
 doing a particular act under pain of incurring a penalty for dis- 
 obedience, and the enforcement of the penalty was the only mode 
 of proceeding against biTn (j/). Where, on the other hand, a sta- 
 tute (z) imposed upon a shipowner the duty of keeping a constant 
 supply of medicines on board for the use of sick seamen, and 
 appointed a peiialty-for every default, recoverable by the first 
 person who sued for it, the amount, when recovered, to be divided 
 between the informer and the seamen's hospital, and the medicines 
 were not kept, and the plaintiff, being a seaman on board, and 
 having contracted a fever, was deprived of the benefit of the medi- 
 cines, and in consequence thereof sustained a long and dangerous 
 illness, it was held that he was entitled to maintain an action for 
 damages, notwithstanding the imposition of the penalty (a). So 
 where a duty was imposed by statute (6) on a water company of 
 keeping their pipes, to which fire plugs were fixed, constantly 
 charged with water at a certain pressure, a person whose premises 
 were burnt down in consequence of the neglect of the water com- 
 pany to perform such duty, was held entitled to sue them for the 
 damage caused by such neglect (c). 
 
 (ij) Stevens r. JeacocJce, 11 Q. B. 741. (6) The Waterworks Clauses Act, 1847, 
 
 (2) 7 & 8 Vict. c. 112, s. 18. And see 10 & 11 Vict. c. 17, s. 42. 
 
 30 & 31 Viot. c. 124, ss. 4, 6, 6. (c) Atkinson v. Newcastle and Gates- 
 
 (a) Qouch T. Steil, 3 Ell. &BI. 410. head Waterworks Co., L. K, 6 Exch. 404. 
 
SECT. 2.] STATUTORY COPYRIGHT. 41 
 
 Infringeramt of statutory copyright — Penalties and actions 'for 
 damages. — To put an end to the doubts which formerly existed as 
 to the extent and duration of the rights of authors of published 
 worlcs {d), the statute 8 Ann. c. 19 was passed, defining those rights 
 and protecting the enjojonent of them by the imposition of penalties. 
 These penalties for the infringement of the right founded upon the 
 statute, were cumulative upon the common-law remedy, so that 
 the author, if he was first in the field, might sue for the penalty as 
 well as for the damages he had sustained (e). The statute of Anne, 
 however, has been repealed by 5 & 6 Vict. c. 45 (/), which provides 
 a special remedy by action on the case for the recovery of damages 
 from any person who causes a book to be printed for sale or ex- 
 portation without the consent in writing of the proprietor of the 
 copyright ; or who imports for sale or hire any such unlawfully 
 printed book, or with a guilty knowledge sells, publishes, or exposes 
 to sale or hire, or has in his possession for sale or hire, any such 
 book, without the consent of the proprietor. Penalties are also im- 
 posed_(s. 17) upon unauthorised parties unlawfully importing books 
 reprinted abroad, or selling, publishing, &c., such books, or having 
 thein in their possession for sale or hire. These penalties are cumu- 
 lative upon the remedy by way of action (^g). 
 
 But no proprietor of copyright in books, &c. (except dramatic 
 pieces), commencing after the 10th June, 1833, can sue or proceed 
 for any infringement of his copyright before making an entry of it 
 at Stationers' Hall, and aU actions for offences committed against 
 the Copyright Amendment Act must be commenced within twelve 
 months after the commission of the offence (A). The Act applies 
 to alien friends residing temporarily in any part of the British 
 dominions, who during such residence publish a book or part of a 
 book in England (j). 
 
 The Act guards against piracy of words and sentiments ; but it 
 does not prohibit writing on the same subject. Thus, in the case of 
 histories, a man may give a relation of the same facts, and in the 
 same order of time ; and in the case of dictionaries, an interpreta- 
 tion may be given of the same words. The same principle holds 
 
 (d) Donaldson v. Beckett, 2 Bro. P. 0. Vict. o. 95 ; and as to international copy- 
 129. MiUar T. Taylor, 4 Burr. 2303. riglit, 7 & 8 Vict. o. 12 ; 15 & 16 Vict. 
 
 V. Boosei/, 4 H. L. C. 846—989. c. 12. Avamo y. MuoIm, 10 Ezcli. 203. 
 
 lieade v. Conquest, 11 C. B., N. S. 479 ; Wood y. Ckwrt, L. E., 10 Eq. Ca. 193. 
 
 30 L. J., C. Jf. 213. As to interrogatories, see Wiight t. Qood- 
 
 (e) Beckford v. Eood, 7 T. E. 627. lake, 34 L. J., Exch. 82. 
 
 (/) This statute repeals also 41 Geo. 3, (A) 5 & 6 Vict. c. 46, sa. 24, 26. As 
 
 c. 107, and 54 Geo. 3, o. 156. to articles publislied in magazines and 
 
 (g) NoveUo v. SudUne, 12 C. B. 188. periodical works, Mayhm t. MwxmeU, 1 
 
 See atae, p. 39. As to forfeiture of Johns. & H. 312. 
 
 copies of piratical editions, Delfe t. -De- (i) Low y. RouUedge.'h.'R., 1 Ch. App. 
 
 g K. & J. 581 ; and as to the 43; 3 Bng. & Ir. App. 100.' Low v. 
 
 protection in the coloniqs of works en- Ward, infra. 
 titled to copyright in Englaud, 10 & H 
 
42 STATUTOEY COPYRIGHT. [CHAP. I. 
 
 with regard to charts ; whoever has it in his intentibn to puhlish a 
 chart, may take advantage of all prior publications (k). There is no 
 monopoly of the subject here any more than in the other instances ; 
 the jury must decide whether it is a servile imitation or not Q). If, 
 however, the great l)ulk of the work consists of a mere mass of 
 pirated matfer, or the appropriation is such that the effect must be to 
 injure or siipersede the sale of the original work, the author or com- 
 poser of the work will be liable to an action for damages, and also 
 to an injunction to prevent the sale of the work (m). And it is no 
 answer to say that the appropriation was fully acknowledged, and 
 made without any dishonest intention (n). The compiler of a guide- 
 book or directory is not entitled to avail himself of the information 
 contained in previous works on th& same subject, but must obtain 
 and arrange the req^uisite information independently for himself (o) ; 
 and it is not sufficient for him to cut the slips from the rival direc- 
 tory, and send persons round to ascertain their correctness (p). 
 He may, however, use such slips for the purpose of directing his 
 canvassers to the persons from whom the required information is to 
 be obtained (§'). And an author who has been led by a former 
 author to refer to older writers may, without conunitting piracy, 
 use the same passages from the older writers which were used by the 
 former author (r). 
 
 'So copyright can be gained in a work which is founded on 
 fraudulent representation and deceit, and professes to be written 
 by some celebrated author when it is not so written, or in 'a work 
 which is subversive of good order, morality, or religion (s). Nor can 
 copyright, it seems, be claimed in a single word, e. g., the title of a 
 periodical publication, " Belgravia " {t), although the proprietor (of 
 a newspaper for instance) has a right to prevent other persons from 
 adopting the name of his newspaper for any similar publication (it). 
 Copjrright is, however, divisible, and may be obtained in respect of 
 certain chapters of a work only (a;). 
 
 The Act does not apply to newspapers, which are not mentioned 
 in it. The proprietor of a newspaper, however, is entitled at common 
 law to the property in- any article for which he pays, whether it be 
 
 (k) Subject to the qualification stated (p) Morris v. AsKbee, L. E., 7 Eq. Oa. 
 
 in KeUy t. Morris, infra. 34. 
 
 If) Cory V. Longmcm, 1 East, 362. (g) Morris ^. Wright, L. K., 5 Ch. App. 
 
 Jwrrold v. HouUton, 3 Kay & J. 708. 279. 
 
 (m) C'amphdl t. Scott, 11 Sim. 38. (r) Pike y. Nicholas, 38 ha.w J., Ch. 529.; 
 
 Bohn V. Bogus, 10 Jur. 420. Timshy L. K.., 5 Ch. App. 261. 
 
 V. Lac^, 32 Law J., Ch. 535. Hot- (s) Wright y. TaUis, 1 C. B. 907 ; 14 
 
 ten V. Arthur, Ibid. ITi. See post, Law-J., C. P. 283. 
 
 ch. 23. (t) Maxwell v. Hogg, L. E.., 2 Ch. 
 
 (») Scott V. Stanford, L.E., 3 Eq. Ca. App. 307. 
 
 718. (u) KeUy v. HuUon, L. E., 3 Ch. App. 
 
 (o) KeUy v. Morris, I . K., 1 Eq. Ca. 703. 
 
 697. (x) Low V. Ward, L. K., 6 Eq. Ca., 415. 
 
 See Levy v. Butley, infra. 
 
SECT. 2.] IN DEAMATIC OE MUSICAL COMPOSITIONS. 43 
 
 the letters of a correspondent, the publication of a tale or treatise, or 
 the review of a book (y). 
 
 InfriTigement of cffpyrigM in lectures — Penalties and actions for 
 damages. — ^By 5 & 6 Wm. 4, c. 65, vesting the sole right of printing 
 and pubHshing lectures in the author and his assigns (z), penalties 
 are imposed upon aU persons taking down, or making a copy of such 
 lectures, and printing or otherwise copying and publishing them, 
 without leave of the author or his assigns, and upon all persons 
 selling or publishing copies, &c., or exposing them for sale without 
 consent^ &c. These penalties are cumulative upon the common law 
 remedy by way of action (a) ; but it is provided (s. 5), that the Act 
 shall not extend to lectures of which notice in writing has not been 
 given to two justices, in manner therein mentioned, nor to lectures 
 delivered in a university or public school, or college, or on a public 
 foundation, &c. 
 
 In all lectures printed and published by the author or his assigns 
 there is now the same copyright as in priated books (6). 
 
 Infringement of copyright in published dramatic literary property 
 and musical compositions. — ^Where one man employs another, for 
 reward, to compose a musical or dramatic piece, the composition 
 beconjes, upon payment, the property of the employer (c). But a 
 mere contract to write a play will not vest the copyright in the 
 employer, although part of the price agreed upon be paid, nor will 
 the employer become joint owner with the writer by reason of 
 alterations, even to the extent of a whole scene, having been made 
 by others at the suggestion and expense of the employer (d). To 
 constitute a joint authorship of a dramatic piece or other literary 
 work, it must be the result of a preconcerted joint design (e). 
 
 Where the defendant represented the incidents of a published 
 novel in a dramatic form upon the stage, it was held that this was 
 not an infringement of the copyright in the novel, as the defendant 
 had neither printed nor multiplied copies of the work (/). But a 
 person who prints a drama constructed out of a novel infringes the 
 copyright in the novel {g). Where the plaintiff published a drama 
 called "Gold," and then printed and published the drama in the 
 form of a novel, and the defendant's brother dramatized the novel 
 without having seen or known of the plaintiff's drama " Gold," but- 
 the consequence was that much of the drama which the defendant 
 
 (y) Cox V. Land and Water Journal (c) S. O. 
 
 Co , L. R, 9 Bq. Ca. 324. See Hatton v. (/) Seade t. Conquest, 9 C. B., N. S. 
 
 Kean, infra. 755 ; 30 Law J., C. P. 209. As to as- 
 
 (z) As to the author's right at common signments of copyright, see Addison on 
 
 law, see am,te, p. 10. Contracts, 6th edit. p. 120—1. Cumber- 
 la) See Bechford t. Rood, ante, p. 41. land t. Gopdamd, 31 Law J., Exch. 353. 
 (V) 5 & 6 Vict. c. 45. Wood v. Boosey, infra. 
 (c) Hatton v. Kean, 7 C, B., N. S. 268. (g) TinsUy v. Lacy, 32 Law J., Oh. 535. 
 1^) Leoy V. Rutky, h, Ri, 6 C. P. 523. 
 
44 STATUTOEY COPTKiaHT. [CHAP. I. 
 
 caused to be represented was the same as the plaintiff's, it was held 
 that this was an infringement of the copyright in the draina, and 
 ■that the defendant's brother could not be considered the author of 
 those parts of the drama which he copied directly from the plaintiff's 
 novel, and indirectly from the plaintiff's drama Qi). A dramatic 
 production, therefore, to be entitled to copyright, must be an original 
 work, and not a mere copy of novels or works of fiction, ia which 
 there is an existing copyright. If, however, the drama is partly 
 made up of new matter, the composer wUl be entitled to copyright 
 in such new original matter (j). 
 
 If a musical composer adapts words of his own to> an old air, he 
 acquires a copjn-ight in the combination (k). So if he arranges an 
 opera for the pianoforte, such an arrangement i& an independent 
 musical composition, of which he, and not the composer of the 
 opera, is the author for purposes of registration (f), although it does, 
 not follow that he would not infringe the copyright of the origiaal 
 author by such an arrangement (m). 
 
 Unlawfiil representation of dramatic pieces and musical composi- 
 tioTis.—The statutes 5 & 6 Vict. c. 45, ss. 20, 21, and 3 & 4 Wm- 4, 
 c. 15, vestiug the sole and exclusive right of representing or per- 
 forming dramatic pieces or musical compositions in the author and 
 his assigns, impose penalties on all persons who, during the continu- 
 ance of the right, represent or cause to be represented, without the 
 consent in writing of the author or proprietor, such dramatic pieces, 
 or musical compositions at any place of dramatic entertauunent- 
 These penalties are given as an alternative remedy, the author or 
 proprietor having the option of either suing for the penalty or 
 bringing an action for all the profit accruing from the representations 
 or aU the loss he has sustained, at his election ; but the action must 
 be brought within twelve calendar months (n). An assignment of 
 the copyright of a book consisting of, or containing, a dramatic piece 
 or musical composition, does not convey the right of representation 
 to the assignee, unless the intention of the parties to that effect is 
 duly registered (o). But an express assignment of the right of 
 representation, although joined with an assignment of the copy- 
 right, does not require registration to entitle the assignee to sue for 
 penalties (jp). 
 
 No one can be considered as an offender against these statutes 
 so as to be liable to an action at the suit of an author or proprietor, 
 
 (h) Seade v. Conquest, 11 C. B., N. S. (m) Per Blactburn, J., and Kelly, C. 
 
 479 ; 31 Law J., C. P. 153. Seade v. B., S. C. 
 
 Lacy, 30 ih. 665. ■ Im) 3 & 4 Wm. 4, o. 15, S3. 2, 3. 
 
 ii) Cwry v. Longman, 1 East; 360. (o) 5 & 6 Vict. c. 45, s. 22. 
 
 (k) Lover t. Davidson, 1 0. B., N. S. (p) Lacy v. Rhys, 33 Law J., Q. B.157. 
 
 182. Ma/i-sh t. Conquest, ib. C. P. 319. As 
 
 (I) Wood V. Boosey, L. E., 2 Q. B. 340 ; to the rights of assignors of copyright, see 
 
 a. 3 Q. B. 223. Taylor v. PiUow, L. K., 7 Eq. Ca. 418. 
 
SECT. 2.] PIRACY OF USEFUL OE ORNAMENTAL DESTGNS. 45 
 
 unless he, by himself or his agent, actually takes part in the repre- 
 sentation (g). But the lessee of a theatre, who lets the same, to- 
 gether with the actors, properties, &c., to a third person, for one 
 night, for the purpose of taking a beneiit, wiU be liable, if by the 
 direction of such person a piece is performed without the consent 
 of the author (r). 
 
 Infringement of the Sculpture Copyright Acts. — The statute for 
 the encouragement of the art of making models and casts of busts (s) 
 (54 Geo. III. c. 56), vests the sole right of property in every new, 
 original sculpture, model, copy, cast, and bust, for a certain term, in 
 the person who makes or causes it to be made, provided the name 
 of such person, and the date of publication, are put on the work 
 before it is put forth or published. A remedy for the infringement 
 of the right of property by persons making or importing copies, or 
 exposing for sale, or disposing of, pirated copies, or pirated casts 
 without the consent of the proprietor, is provided by special action 
 on the case, in which double costs of suit are recoverable, but the 
 action must be brought within six calendar months after the dis- 
 covery of the offence (f). 
 
 Piracy of useful and ornamental designs (u). — Penalties are 
 Tccoverable by action or by summary proceedings for the piracy of 
 registered useful or ornamental designs, or the proprietor of the 
 design may elect to bring an action for damages ; but he cannot 
 recover both the penalties and the damages (x). Penalties also are 
 recoverable for making or exposing for sale pirated copies, or pirated 
 casts, of registered copies, drawings, prints, or descriptions in writing, 
 or prints, of pieces of sculpture, models, &c., within the protection 
 of the Sculpture Copyright Act, and for doing various specified 
 things in derogation of the rights of the proprietor of .the design. 
 These penalties are given as an alternative, and not a cumulative: 
 remedy (y). When utility and beauty arg blended together in the de- 
 sign, it may be registered under both the Useful and the Ornamental 
 Designs Acts ; but if there is neither novelty nor utility in the 
 article, it is not entitled to registration under either statute, and 
 cannot claim any statutory protection (z). If the inventor, instead 
 Qf describing the design in words, prefers to place the design itself 
 
 (q) Russell v. Sriant, 8 0. B. 836 ; 12 25 Vict. c. 73. As to registration, Mey- 
 Jjstw J., C. P. 33. Lyon v. Knowles, 32 wood v. Potter, 1 Ell. & BL 439 ; 22 Law- 
 Law J., Q. B. 71. J., Q. B. 133. Rogers v. Driver, 16 Q. 
 
 (r) Marsh -ir. Conquest, supra. B. 102 ; 20 Law J., Q. B. 31. Mc Orea 
 
 (s) The stat. 38 Geo. 3, o. 71, has been v. Holdsworfh, 33 Law J., Q. B. 329 ; L. 
 
 repealed by 24 & 25 Vict. c. 101. E., 1 Q. B. 264 ; (in error) L. E., 2 H. of 
 
 (t) ss. 3, 4. L. Ca. 380. 
 
 lu) MiUingen v. PicTcen, 1 C. B. 799; (2^) 13 & 14 Vict, a 104, s. 7 ; 21 & 22 
 
 14 Law J., C. P. 254. Beg. t. Bessel, 16 Vict. c. 70, b. 7. 
 Q. B. 810. (2) Windover t. Smith, 9 Jur. N. S. 
 
 (iu) 5 & 6 Vict. c. 100, ss. 8, 9 ; 6 & 7 397. 
 Vict. c. 65 ; 21 & 22 Viot. 0. 70 ; 24 & 
 
46 STATUTORY COPYRIGHT. [CHAP. T. 
 
 upon the register in the shape of part of the article designed, the 
 design will he infringed by the sale of an article to all appearance 
 the same, though not actually identical (a). 
 
 A combiaation of old designs, forming a new and original 
 combination, must, in order to obtain the statutory protec- 
 tion, be one new design, and not a mere multiplication of old 
 designs (b). 
 
 The proprietor of a design duly registered loses the benefit of the 
 Acts, unless the proper registration marks are attached to all articles 
 and substances to which the design is applied, whether the same 
 are sold abroad or in the British dominions (c). 
 
 Piracy offprints and engravings. — The statutes of 8 Geo. 2, c. 13, 
 and 7 Geo. 3, c. 38, vesting the sole right and liberty of printing 
 and reprinting historical and other prints in the persons who invent 
 and design them, or cause them to be designed and engraved from " 
 their own works and inventions, impose penalties upon all persons 
 who engrave, etch, or in any manner copy and sell, in the whole or 
 in part, by varying, adding to, or diminishing from, the main design, 
 any historical or other print engraved with the name of the pro- 
 prietor on each plate {d), and printed on every such print, &c. (e), 
 or print, reprint, or import for sale, &c., any. such print, without the 
 written consent of the proprietor attested as therein mentioned, or 
 publish, sell, &c., without such consent. These penalties are cumu- 
 lative upon the right of action (/), but the provision as to double 
 costs of suit has been repealed {g), and the proceedings must be 
 instituted within the time limited by the statutes (]i). 
 
 The copying of prints and engravings by photography, or by 
 any other process by which prints or engravings may be imitated or 
 copied, is within the mischief intended to be provided against (*), 
 and so is the selling of a copy with colourable variations (]e). 
 
 Books containing designs and prints which are mere illustrations 
 of the letter-press, are protected by 5 & 6 Vict. c. 45 (F). 
 
 The statute 8 Geo. 2, c. 13, made it necessary to prove knowledge 
 in proceedings against a person for selling a pirated engraving or 
 print. The 17 Geo. 3, c. 57, which was passed to amend the former 
 Act, omits the word " knowingly," and enables the person having a 
 copyright in a print or engraving to maintain an action against 
 
 (a) McEea t. EoldswoHh, L. E., 6 Ch. (/) 17 Geo. 3, c. 57. 
 
 App. 418. Ig) 24 & 25 Viet. c. 101. 
 
 (6) Norton v. Nwholh, 1 Ell. & EII. (h) 8 Geo. 2, o. 13, s. 1 ; 7 Geo. 3, c. 38, 
 
 761. Barrison t. Taylor, 3 H. & N. 301 ; ss. 2—8. 
 27 Law J., Exch. 315. (i) Gamba/rt v. Bait, 32 Law J., C. P. 
 
 (c)- Sairazin v. Hand, 32 Law J., Ch. 166. Qrwves v. Ashford, L. B., 2 C. P. 
 
 380. 410. 
 
 (d) See Graves v. Ashford, infra. (i) West v. Francis, 5 B. & Aid. 742. 
 
 (e) Oohaghi v. Wa/rd, 12 Law J., Q. (I) Ante, p. 41. Bogue t. Houlston, 5 
 B. 1. De G. & S. 273 ; 21 Law J., Ch. 470. 
 
SECT. 2.]~ PAINTINGS, PRINTS, PHOTOGRAPHS, ETC. 47 
 
 persons found selling pirated copies of it, without proof of guilty- 
 knowledge (m). 
 
 Infringement of copyrigJit in paintings, drawings, and photo- 
 graphs. — By 25 & 26 Vict. c. 68, conferring upon the authors of 
 paintings, drawings, and photographs, the sole and exclusive right, 
 for a certain term, of copyihg, engraving, reproducing, and multiply- 
 ing them, and the designs thereof, and photographs, and the nega- 
 tives thereof, penalties are imposed upon persons who repeat, copy, 
 colourably imitate, or otherwise multiply for sale, hire, exhibition, 
 or distribution, or cause to be repeated, &c., any painting, drawing, 
 or photograph, in which there shall be subsisting copyright, without 
 the consent of the proprietor of the copyright ; also for Imowingly 
 importing, selling, &c., repetitions, copies, &c., unlawfully made ; 
 also for fraudulently af&xiag names, &c., to any painting, drawing, 
 or photograph, and, doing various other specified things in dero- 
 gation of the rights of the owner of the copyright. All these 
 penalties are cumulative upon the remedy by action. They are 
 cumulative also upon any remedy which any person aggrieved may 
 be entitled to, either at law or in equity (n). The Act applies to a 
 photograph ■ of an engraving which is itself engraved from the 
 original picture (o). 
 
 Registration of the proprietorship of the copyright is made a con- 
 dition precedent to the maintenance of any action at law or suit in 
 equity {p), and to the recovery, of any penalties under the statute ($'), 
 which penalties apply to each copy sold (o). But it is not necessary 
 for the original proprietor to register his title. If he assigns it^ his 
 assignee's title is good, and such assignee, on a due registration of 
 the assignment, is entitled to sue for an infringement of the copy- 
 right, or for penalties, &c. (r). 
 
 Proof of the copyright. — When any painting or drawing, or the 
 negative of any photograph, is sold or disposed of, for the iirst time, 
 or is made or executed for any other person, for good consideration, 
 the person seUing or disposing of, or making or executing the same, 
 cannot retain the copyright thereof, unless it is expressly reserved 
 to him by agreement in writing, by the vendee, or assignee, of the 
 painting, or drawing, or negative, or the person for whom it has 
 been executed ; nor can the vendee or assignee claim the copyright, 
 except by virtue of an agreement in writing, signed by the person 
 selling or disposing of the same, or by his duly authorised agent (s). 
 
 Penalties for the use of counterfeit trade marks and false descrip- 
 
 (m) GambaH T. Sumner, 5 H. & N. 8 ; (p) See Stannerd t. Lee, L. E., 6 Ch, 
 
 29 Law J., Eioh. 98. App. 346. 
 
 (to) See B. 11. As to the remedy by (?) See EUwood v. Christy, 34 Law J., 
 
 Injunction, see post, ch. 23. C. P. 130. Mathieaon v. Hm-rod, L.E., 
 
 (o) Ex parte Beal, L. R., 3 Q. B. 387. 7 Bq. Ca. 270. 
 Graves's case, infra. W Graves's case, L. R., 4 Q. B. 715. 
 
 {s) 25 & 26 Viet. c. 68, as. 1—3. 
 
48 PATENT EIGHT. [CHAP. I. 
 
 tions of articles of manufacture and sale are imposed by 25 & 
 26 Vict. c. 88, s. 4, and are cumulative upon any remedy wMcli 
 aggrieved parties may be entitled to, either at law or in equity (s. 11). 
 Penalties for the commission of nuisances are also cumulative upon 
 the common-law remedy by action ; sucb as penalties for causing 
 water to be corrupted by gas washings or gas refuse, and the crea- 
 tion of preventible nuisances in the exercise of noxious trades (t), 
 fouHng the water of wells, fountains, or pumps (u), wilfully and 
 knowingly turning out upon any common, or unenclosed land, 
 cattle, sheep, &c., affected witli contagious or infectious diseases, or 
 knowingly exposing such cattle, sheep, &c., in any public market 
 or private sale-yard (x). 
 
 Of patent right (2/).— Unlike copyright, an inventor of a new 
 design has no right at common law to the exclusive property in his 
 own invention. He may, of course, conceal his discovery from the 
 world, but the moment he publishes it, his exclusive right to' it is 
 gone (a). However, "where any man by his own charge or industry, 
 or by his own wit or invention, doth bring asEiy new trade into the 
 realm, or any engine tending to the furtherance of a trade that 
 never was used before, and that for the good of the realm, in such 
 eases the king may grant to him a monopoly patent for some reason- 
 able time untH the subjects may learn-the same, in consideration 
 of the good that he doth bring by his invention to the common- 
 wealth, otherwise not " (a). And this prerogative of the Crown, 
 which is the original source from which the existing law and 
 practice of letters patent for inventions are derived, and on which 
 (subject to the modifications subsequently introduced by statute) 
 they still rest (6), was confirmed by the Statute of Monopolies (21 
 Jac. 1, c.' 3), which is declaratory of the common law, and by 
 which, after declaring that all monopolies should be void, it was 
 enacted (s. 6) that " any declaration before-mentioned shaU not 
 extend to any letters patent and grants of privilege for the term of 
 fourteen years or under (c), hereafter to be made, of the sole 
 
 (0 18 & 19 Vict. c. 121, ss. 23, 26, 27; to one person, however, in confidence, is 
 
 10 & 11 Vict. e. 15, ss. 21 — 23. See not a publication. Morgan t. Seaward, 2 
 
 34 & 35 Vict. 0. 41. Aa to penalties M. & W. 544. And will not, therefore, 
 
 for newly establishing noxious trades if it goes no further, prevent another 
 
 without the consent of local boards of person taking out a patent subsequently 
 
 health, 11 & 12 Vict. c. 63, s. 64 ; and for the same invention. Jones v. Pea/rcBy 
 
 as to what are noxious trades within the 1 Webst. R. 122, 642. Lewis v. Ma/rlimg, 
 
 meaning of the statute, see Wamstead 10 B. & C. 22. 
 
 local Board v. Bill, 13 C. B., N. S. 479 ; (a) Darcp v. AUin, Noy, 182. And 
 
 32 Law J., M. C. 135. see 3 Inst. 184. 
 
 («) 23 & 24 Vict, a 77, s. 8. (6) See Feather v. The Queen, infra. 
 
 (x) Ante, p. 4. (c) Which may, under 5 & 6 WJU. i, 
 
 {y) As to assignment of patent right, c. 83, s. 4, and 7 & 8 Vict. c. 83, s. 2, be 
 
 see Addison on Contracts, 6th ed., pp. further extended for fourteen years or 
 
 121—2. less. See BoviU v. Fimch, L. K., 5 C. P. 
 
 (z) See Oanham v. Jones, 2 V. & B. 523. Se Saxbj's Patent, L. E., 3 P. C. 
 
 218. The communication of his secret Ca. 292. Se Clark's Patent, lUd. 421. 
 
SECT. 2.] PATENT KIGIIT. 49 
 
 working or making of any manner of new manufactures within 
 this realm to the true and jirst inventor and inventors of suqh 
 manufactures, which others at the time of making such letters 
 patent and grant shall not use, so as also they be not contrary to 
 the law nor mischievous to the State by raising prices of com- 
 modities at home, or hurt of trade, or generally inconvenient," &c. 
 
 It results from the principles mentioned above that a patent is a 
 kind of equitable contract made by the Sovereign -with the patentee, 
 or a purchase made by the discoverer of an invention from the 
 Sovereign acting on behalf of the public, the consideration for such 
 purchase being the novelty and utility of the invention discovered 
 or first introduced into this country by the patentee {d) ; and the 
 condition precedent to the validity of such contract or purchase 
 being, that after the lapse of the prescribed period the inventor 
 shall make pubKc his invention for the general benefit (e). It is 
 stni, however, legally speaking, an exercise of prerogative, and being 
 so, is not available against the Crown itself ; otherwise an invention 
 essential to the defence of the realm might be unavailable on behalf 
 of the public, whUst a foreign power at war with this country 
 might be profiting by it (/). 
 
 The grant must be " to the true and first inventor." " It is a 
 material question,"" said Tindal, C. J., " to determiae whether the 
 party who got the patent was the real and original inventor or not, 
 because these patents are granted as a reward not only for the 
 benefit that is conferred upon the public by the discovery, but also 
 to the, ingenuity of the first inventor; and although it is proved 
 that it is a new discovery so far as the world is concerned, yet if 
 anybody is able to show that, although that was new, the party^ 
 who got the patent was not the man whose ingenuity first dis- 
 covered it ; that he had borrowed it from J. or 5 (g), or taken it 
 from a book that was printed in England (h), and which was open 
 to all the world ; then, although the public had the benefit of it, it 
 would become an important question whether he was the first and 
 original inventor of it " (i). And not only must the patentee be 
 the actual inventor, but he must have invented every part of what 
 he claims to have invented (/c) ; for if a man claims by his patent 
 to have invented a number of things, and some of them are not 
 
 Houghton's Patent, /iJd 461. And as Wood x. Zimmer, KoU, 58. Ahhott, O.J. , 
 
 to an application for a prolongation by in Scmory v. Price, Ry. & M. 1. 
 
 an assignee ; Normand's Patent, L. B., 3 (/) Feather y. The Queen, 35 L. J., Q. 
 
 P C Oa 193. An imported patent, B. 2D0. 
 
 however, expires on the expiry of the (g) £arher\. Walduck, diei 1 C. Si T. 
 
 foreign patent, 15 & 16 Vict. c. 83, s. 25. 567. 
 
 (d) See WaUaTris v. Williams, 3 Mer. (h) Stead v. WiUmms, 7 M. & G. 818. 
 160 ■ 11 East 107 Ca/rtvmght v. Earner, See Heurtdowp's case, 1 Webst. E. 553. 
 cited 14 Veb. 'l31,'l36. («) Cornish v. Keene, 1 Webst. E. 507. 
 
 (e) Lord Tenterden, C.J., Orom/ptonv. {k) Tennamt's case, 1 Webst. E. 125. 
 Ibbotson, Dan. & Lloyd, 33. Gibbs, C.J., 
 
50 PATENT EIGHT. [CHAP. I. 
 
 original, his patent Ms void (I). There is nothing, however, to 
 prevent him from employing liis servants in assisting him to- bring 
 a design to perfection, or to work out an idea first suggested by 
 him (m), or from employing third persons for such a purpose (n). 
 He is still the true and first inventor. If the invention be publicly 
 known in any part of the realm, in Ireland or the colonies for 
 instance, he is not the true and first inventor (o). But a description 
 of a similar process in a book, or in the specification of a previous 
 patent, must, to defeat a patent, impart such information as to 
 enable any one of reasonable intelligence in that department of 
 art or industry to reckon with confidence on the result (p). 
 
 The suhj'ect-matter of a patent. — The subject-matter of the grant 
 is " any manner of new manufactures." The word " manufacture " 
 in the statute may be construed in one of two ways. It may mean 
 the machine when completed, or the mode of constructing the 
 machine (q). " The word ' manufacture,' " said Abbott, C. J., (r) "has 
 been generally understood to denote either a thing made which is 
 useful for its own sake, and vendible as such, as a medicine, a 
 stove, a telescope, and majiy others ; or to mean an engine or instru- 
 ment, or some part of an engine or instrument, to be employed 
 either in the making of some previously known article, or in some 
 other useful purpose — as a stocking-frame, or a steam-engine for 
 raising water from mines ; or it may, perhaps, extend also to a new 
 process to be carried on by known implements, or elements acting 
 upon known substances, and ultimately producing some other 
 known substance, but producing it in a cheaper or more expeditious 
 manner, or of a better and more useful kind. 'No merely philp- 
 sophical or abstract principle can answer to the word ' manu- 
 factures.' Something of a corporeal and substantial nature — 
 something that can be made by man from the matters subjected to 
 his art and skill, or at the least some new mode of employing 
 practically his art and skOl, is required to satisfy this word " (s). 
 And it is now perfectly well established that a method or process 
 in itself, and apart from its produce or results, or from the sub- 
 stances used in the process, maybe the subject of a patent privilege, 
 provided some beneficial result, such as the cheaper or better 
 production of the product, is attained from the use of such method 
 or process (t), 
 
 (1) Losh V. Bague, 1 Webst. E. 203. (g) Parke, B., Morgm \. Semcwd, 2 
 
 See R. V. Arlewright, Dav. P. C. 61. M. & W. 558. 
 
 (m) Mvater t. WeOs, 1 Websfe E. 132. (r) R. v. Wkeder, 2 B. & Aid. 349. 
 
 (») BUxam t. EUsee, 1 C. & P. 558. («) And see BmiUon T. Bvitt, 2 H. Bl. 
 
 (o) Brown t. AnnmuMe, 1 Webst. K. 481, 492, per Eyre, C. J., and Heath, J., 
 
 433. RoebucJc v. S^Ung, ib. 45, 451. Hnddwrt v. Grimsjmw, Dav. P. C. 278, 
 
 {p) Belts V. Neilsm, L. K. 3 Ch. App. per Ld. EEenborough. 
 
 429;5£lng. &Ir. App.'l. («) Crane v. Poice, 4 M. & G. 580. 
 
 Wright T. Bitchcoch, L. K., 5 Exch. 37. 
 
SECT. 2.] SUBJECT MATTEE OF. 51 
 
 Thus there may be a valid patent for • a new combination of 
 materials previously in use for the same purpose, or for a new 
 method of applying such materials (u), or for the mere omission of 
 one of several parts of a process, by which the article is manu- 
 factured cheaper or better (x) ; for a new method of lessening the 
 consumption of fuel in fire-engines (y) ; for a method of securiag 
 buildings from fire (s) ; for an improvement in the construction of 
 chairs (a) ; for a method of giving fire to artillery and aU kinds of 
 fire-arms (b), and the like. So a patent may be sustained for a 
 combination of processes, each of which was previously well 
 known, provided the combination be new and produces a beneficial 
 result (c). But the use of a new material to produ6e a known 
 article cannot be the subject of a patent, unless some invention 
 and ingenuity are displayed in the adaptation (d). 
 
 However, as the title and terms of the letters patent in most 
 cases convey but very imperfect information as to the real subject- 
 matter of the patent, and as one of the fundamental principles 
 upon which a patent rests is (as has been mentioned before) that 
 the public shall have the benefit of the invention after the pre- 
 scribed period has elapsed, the grant always provides that the 
 letters patent shall be void, unless a sufficient description of the 
 nature of the invention, and in what manner the same is to be 
 performed, — so as to enable any person of moderate sMll and know- 
 ledge in that department of manufacture to which it relates, to 
 practise and enjoy the invention at the expiration of the term in 
 as ample and beneficial a manner as the patentee himself (e), — 
 (called the specification (/) ), be filed in the Court of Chancery (g) 
 within a given time. It follows from this, that the specification 
 forms an essential part of the patent contract, if such a term be 
 allowable, and that an incorrect or imperfect or ambiguous specifi- 
 cation (h), or one , calculated to mislead (i), or materially differiag 
 from the letters patent, will, if the defence be properly raised by 
 the pleadings (k), and such ambiguity, incorrectness, &c., has not 
 been removed by disclaimer or alteration under the provisions of 
 
 (u) RUl V. Thompson, 3 Mer. 629, per Park, J. B\iner,J.,li.v.Arhwnffht, 
 
 per Lord Eldoii,C. &eePar]eesy.Stmiens, Dav. P. Ca. 106. Orossleij v. Beverley, 
 L. E,, 9 Eq. Ca. 36. . 9 B. & 0. 63. 
 
 ' (x) Russea T. Gowleii, 1 Webst. K. (/) See as to provisional and complete 
 
 464 speeiflcation, 15 & 16 Vict. c. 83. Tho- 
 
 (y) Hornblower t. Boulion, 8 T. E. 95. mas\. Welch, L.E., 1 C. P. 192. Exparte 
 
 (z) 2 H. Bl. 493, per Eyre, C. J. Manceaux, L. E., 5 Ch. App. 518. 6 Hid. 
 
 (a) Minter T. Wells, 1 Cr. M. & E. 272. ExpaHe Scott ds Young, Ihd. 214. 
 505/ (g) 15 & 16 Vict. c. 83, s. 2?. 
 
 (i) Forsyth's case, 1 Webst. E. 95. (h) Campion v. Benyon, 3 B. & B. 5. 
 
 (e) CanningtonY. NvMaU, L. K., 5 Eng. Twmer v. Winter, 1 T. K. 602. Simpson 
 
 & It App 205. v. SolUday, L. R, 1 H. of L. 315. 
 
 (d) Suskton T. Crawky, L. E., 10 Bq. (i) Savory v. Price, Ey. & Mo. 1. 
 
 Ca_ 522. W See Derosne t. Fame, 2 0. M. & K. 
 
 (e) Campion T. Bmyon, 3 B. & B. 12, 476. 
 
 B 2 
 
52 PATENT EIGHT. [CHAP. I. 
 
 tlie several statutes passed for that purpose (^j, be suf&cient to 
 defeat the plaintiff's claim or avoid the patent (m). Mere generality 
 of the title, however, if not inconsistent with the specification, 
 will not do so, and, indeed, the specification generally limits the 
 description of the patent (n). Nor, on the other hand, will a small 
 and immaterial variation entitle a person to infringe a patent (o). 
 
 A patent cannot be taken out for a principle, but it can for a 
 principle coupled with the mode of carrying the principle into 
 effect (j)). Although machinery be employed, the machinery may 
 not be of the essence of the invention, but only incidental to it (q). 
 It follows from this that an invention may be infringed by adopting 
 the same general idea, although carrying it out by different 
 means (r). The invention must be new to satisfy the terms of the 
 statute, yet every novelty is not an invention for which a patent 
 may be granted (s), for it must be of public utility also. If, however, 
 it be new and useful, it is not material whether it result from long 
 experiment, profound research, and great expense, or whether from 
 some sudden and lucky thought or mere accidental discovery (t). 
 
 Remedies for infringement.— The infringement of letters patent is 
 prohibited by a clause contained in the letters pateiit,and the remedy 
 for such infringement is either by action at law for damages (m), 
 in which action an injunction and an account may now be ordered (»), 
 or by a bill in equity for an injunction, which the court granted 
 formerly on the principle of the fraudulent interference by the 
 defendant with property to which the plaintiff had, at aU evenfe, a 
 colourable possessory title {x), and upon which the Court of Chan- 
 cery, under recent Acts, may now give complete remedy, without 
 sending the applicant to a court of law for redress (y). The Court 
 of Chancery may also award damages under 21 & 22 Vict. c. 27 {z). 
 
 A person is guilty of a breach of patent privilege who, directly 
 or indirectly, by himself or his servants, has used the art or invention 
 which has been made the -subject of the privilege, or applied it in 
 any way for his own profit or benefit (a). And if the defendant 
 has employed means only colourably different to produce the same 
 
 (Z) 5 & 6 Will. 4, 0. 83 ; see s. 1. 7 Patent, E. 2. As to particulars of breaches, 
 
 & 8 Vict. c. 69; see ss. 5 & 6. See 15 & 16 Vict. o. 83, s. 41. 
 RaUton v. Smith, 35 L. J., C. P. 49. (v) 15 & 16 Vict. c. 83, s. 42. 
 
 (m) R. T. Wheeler, 2 B. & Aid. 345. (x) Per Lord Eldon, 6 Ves. 707. BUI 
 
 Jessop'a case, cited 2 H. Bl. 489. v. Thompson, 3 Mer. 622. Bichford v. 
 
 (n) Fonsyth's case, 1 Webst. R 95. Skewes, 4 My. & Cr. 500. See post, ch. 
 
 (o) Gibbs T. Cole, 3 P. Wms. 255. 23, s. 1. But see Oollard v. Amon, 4 
 
 (p) Jupe T. Prait,infra, per Alderson, B. My. & Cr. 487. 
 ■ (s) Boviton V. Watt, 2 H. Bl. 496, per (y) Belts v. NeUson, mfra. 
 
 Eyre. C.J. (z) Penn t. Jach, L. E..; 5 Bq. Ca. 81. 
 
 (r) Jupe v. Pratt, 1 Webst. R. 146. (a) Belts v. NeOson, L. E., 3 Ch. App. 
 
 (s) Webster on Patents, pp. 24, 25, 429 ; 5 Eng. & Ir. App. 1, in which ease 
 
 Supplement. Ralston v. Smith, swpra. the user was simply by transmission 
 
 (t) Crane v. Price, 4 M. & G?. 605, per through this country. Upmann v. Blkan, 
 
 Tindal, O.J. L. E., 12 Eq. Ca. 140, ace. 
 
 (u) 21 Jac. 1, c. 3, s. 2. Com. Dig. 
 
SECT. 2.] ■ ASSIGNEES AND LICENSEES OF. 53 
 
 or a similar result, yet he is guilty of an infringement if he has, in 
 fact, used the art which is the subject of the privilege (5). 
 
 The vending of the patented article is prohibite(^ by the terms of 
 the grant, and is, therefore, an infringement, though done in ignor- 
 ance (c) ; and so is the importation and sale in England of articles 
 manufactured abroad, according to the specification of an English 
 patent (d). But this does not extend to an exposure for sale only (e), 
 nor is the sale of a patented article, as part of the effects of a 
 bankrupt or deceased person, it -would seem, within the objects 
 intended to be prohibited by the grant (/). 
 
 The letters patent, so long as they exist, that is, untU cancelled 
 by the judgment on a scire facias, entitle the patentee to assert his 
 right at law, although he may have been defeated in other 
 actions (g). 
 
 The unauthorised use of the name of the patentee is made an 
 infringement, and a penalty of 50^. is imposed for such user by 5 & 
 6 W. 4, c. 83, s. 7. 
 
 Letters patent may be granted for an improvement on an existing 
 patent (h), but the user of such, without a licence, or before the 
 expiration of the term, would be an infringement on the first 
 patent (i), provided that be useful ; but, although the original 
 patent be useless, and therefore not the subject of an infringement, 
 it does not follow that the improvement upon it is useless (k). 
 
 Remedies for infringement hy assignees and licensees. — The letters 
 patent are granted to the patentee and his personal representatives, 
 or assigns {T). The assignments which may be made are of two 
 kinds — either by the act of the party (m), or by act and operation 
 of law, as in the case of a bankrupt (n) or administrator. Such 
 assignment confers as absolute a title as the patentee himself pos- 
 sessed, and the assignee may sue for any infringement, or file a bUl 
 for an injunction, either in his own name only(o), or together with 
 the patentee (if the patentee retains any interest in the patent), 
 for though the interest be several, the damage by infringement is 
 joint ijp). Each co-owner of a patent, however, may sue for an 
 infringement (g'), for he is entitled to all the profit he may make by 
 
 (6) Hindmarch on Patents, 257. See (i) Exparte Fox, 1 V. & B. 67. 
 
 Gilhtt V. Wi%, 9 C. & P. 334. Jupe v. (*} Lewis v. Dmis, 3 C. & P. 502. 
 
 Pratt supra. (J) See Duvergier v. Fellows, 10 B. & C. 
 
 (c) ' Wright v. Hitchcock, L. E., 5 Exoh. 829, and form given in the schedule to 
 
 37. 15 & 16 Viet. c. 83. 
 
 (d) Elmslie v. Boursier, L. B., 9 Eq. Ca. (m) Cartwright v. Amatt, 2 B. & P. 
 217. . 43. 
 
 (e) MinUr v. WiUiam,s,iA. & B. 251. (n) Erne v. Stevenson, 3 B. & P. 565. 
 (/) See Sawin v. Child, 1 Gallison, U. (o) Bhxam t. Flsee,- 6 B. & C. 169. 
 
 S. R. 486. And see Holmes T. L. & N. HassaU v. Wright, L. R, 10 Eq. Ca. 
 
 W. Bail., Maor. P. C. 12, 21 et seq. 509. , 
 
 (a\ See if. T. Arhwriqht, Dav. P. Ca. (p) 2 Wm. Saund, 115, 116a. 
 
 61. (q) HunnicUffy. Mallet, 7 C. B., N. S. 
 
 (h) Morris v. Branson, Bull. N. P. 209. Walton v. Lavater, 8 Ih. 162. 
 76c. 
 
54 PATENT EIGHT. ' [CHAP. I, 
 
 ■working it (r). The patentee may also license others to exercise 
 the invention, provided the terms of the grant authorise such 
 licence, and such licences may be either common or exclusive (s). 
 The only right, however, which such licensee (whether a common 
 or exclusive one) obtaias being one of user, he cannot sue for any 
 infringement. He may, however, recover for any special damage 
 which he may have sustained from- those exercising the invention" 
 without licence, if the letters patent are valid (t). The patentee 
 is estopped from denying the validity of the patent as between 
 himself and his assignee or licensee {u). And so may the 
 assignee or licensee be as between himself and the patentee (oj). 
 As against third persons the assignment must be registered under 
 15 & 16 Vict. c. 83 (see s. 35), to entitle the assignee to sue (j^). 
 But as between the assignor and assignee, or licensees from the 
 assignor with notice of the assignment, no such registration is, it 
 seems, necessary (a). If the owner of a patent manufactures and 
 sells the patented article both in this country and abroad, the sale 
 of the article in one country implies a license to use it in the 
 other. But if he has assigned it in either country, the article 
 cannot be sold in that country so as to defeat the rights of the 
 assignee {a). 
 
 Pleas. — Want of novelty (6) or utility. — Novelty is an essential 
 condition of the grant, for if the invention were not new, one of 
 the main considerations upon which the exclusive use of the 
 invention is granted would fail, and further, there would be no 
 benefit to the public, so that the grant would be void by the 
 common law. If an invention be new in England, a patent may 
 be granted for it, although it was practised beyond sea before (c), 
 and for the purpose of granting a patent the United Kingdom is 
 now one country (d). The novelty may consist in the combination 
 of old materials to produce a new result (e). But if any part of an 
 invention comprised in a patent and claimed in the specification be 
 not new, although the remainder is, the patent will be void (/), for 
 the consideration for the grant of a patent being what is termed in 
 law entire, if any part of it fail, the patent is void (g). If the con- 
 
 {r) Mathers y. Green, L. E., 1 Ch. (6) See ^mor^ t. 5row», L.E., 8 Eq.Ca. 
 
 App. 29. 663. 
 
 (s) ProtJieroe t. Mm/, 5 M. & W. 675. (c) Edgeberry v. Stephms, 2 Salt. 
 
 ({) George v. Bemmont, cited in Web- 446. 
 
 steron Patents, pp. 24, 128. ((i) 15 & 16 Vict. c. 83, s. 18. This was 
 
 («) Oldham v. Lmigmmd, 3 T. E. not bo formerly. See 6 Ves. 708, per Lord 
 
 439. 'I Eldon, C, Brown v. AnnandaU, 1 Webst. 
 
 (x) Baird v. Neilson, 8 CI. & I". 726. E. 433. 
 
 Bovmum t. Taylor, 2 A. & E. 278. (e) Cornish v. £eene, 3 B. N. C. 570. 
 
 (y) Cholletr. Hoffmm,, 7 B.&B. 686. And see Parhes v. Stevens, L. E., 8Eq. 
 
 (z) HassaU v. Wright, L. E., 10 Eq. Ca. Ca. 358 ; 38 L. J. Oh. 627. 
 
 509, (/) Kay T. MarshaU, 5 B. N. C. 492 ; 
 
 (a) Betts T. Wmmotf, L. E., 6 Ch. App. 4 M. & G. 193 n. 
 
 239. (g) Brunton v. HamTces, 4 B. & Aid. 
 
 541. 
 
SECT. 2.] NOVELTY AND UTILITY. 55 
 
 trivance, or process, or art (whichever term be used) be new, 
 although applied to an old object, the patent is valid ; but if the 
 contrivance, or any essential part of it, be old, it is void, although 
 applied to a new object (Ji). So the mere application of. an old 
 contrivance in the old way to an analogous subject, without any 
 novelty in the mode , of applying such old contrivance to the new 
 purpose, is not' a valid subject-matter of a patent (i), 6.g., the sub- 
 stitution of wooden planking on an iron frame for the construction 
 of ships, instead of, as previously, similar planking on a wooden 
 frame (Je). 
 
 Experiments made upon the same line, and almost, if not en- 
 tirely, tending to the same result, although they are known to many 
 persons, if they rest in experiment only, and have not attained the 
 object for which a patent is subsequently taken out — mere experi- 
 ment, afterwards supposed by the parties to be fruitless, and 
 abandoned because not brought to a complete result — ^wiU not pre- 
 vent another person availing himself of their discoveries, as far as^ 
 they have gone, and, by adding the last link of improvement, 
 bringing it to perfection (J). The prior use of an invention need 
 not be general ; a single instance would, it seems, suffice (m), but it 
 must be public (n) ; and the meaning of public use is this, that a 
 man shall not by his own private invention, which he keeps locked 
 up in his own breast or in his own desk and never communicates, 
 take away the right that another man has to a patent for- the same 
 invention (o). It must be new at the time of the grant (p). 
 
 Utility is an essential condition of the validity of letters patent, 
 for a monopoly in an invention altogether useless would be mis- 
 chievous to the State and to the hurt of trade, and generally incon- 
 venient, by precluding all improvements thereon until the expira- 
 tion of the patent (q), and if the utility of the invention be denied, 
 affirmative evidence of utility must be given (r). But the inutility 
 of part, if on the whole a beneficial effect is produced, will not 
 vitiate., And if a machine be useful in the majority of cases, its 
 inutility in some instances wOl not vitiate (s). If, however, 
 several distinct inventions are comprised in a patent, and one of 
 
 (k) Losh v. Hague, 1 Webst. E. 307, (p) 21 Jae. c. 3, s. 6. This ia otherwise 
 
 per Lord Abinger, C.B. in the United States, where the question 
 
 (i) Harwood v. Oreat Northern Sail- is whether it.was new at the time of the 
 
 way, 35 L. J., Q- B. 27. discovery. Phillips on Patents, p. 152 et 
 
 d) Jordan v. Moore, L. B., 1 C P. seq., 1S8 et seq. ,, „ „ 
 
 goi (g) Morgam v. Seamard, 2 M. & W. 
 
 m Galloway v. JBleaden, 1 Webst. K. 562, per Parke, B. 
 
 529 per Tindal, C.J. W Mm-ton v. Parker, Dav. P. Ca. 327. 
 
 M Om-penter v. Smith, 1 Webst. E. In the United States it is suflScient, it 
 
 534 £etts v. Neilson, ante, p. 52. seems, if the invention be not injurious, 
 
 In) Zewis v. Marling, 4 C. & P. 52. and may be useful. Sedford v. Swit, 1 
 
 (o) Abinser, C. B., in Carpenter v. Mason, 302. . 
 
 Smith . ' t- (j^ ffaworth v. Hardcastle, 1 B. N. 0. 
 
56 STATUTORY BENEFITS AND BUETHENS. [CHAP. I. 
 
 them is useless, the whole patent is void, for reasons that have been 
 previously given (f). If the article that is produced by the 
 machine be old, it must be furnished to the. public at a cheaper 
 rate, or in some way rendered a better commodity for trade. The 
 community must receive some benefit from the invention. 
 
 Statutory benefits and burthens. — A person who seeks for and 
 accepts some statutory benefit to which a burthen is attached, 
 cannot take the benefit and reject the burthen. Where, therefore, 
 the king, for the benefit of the public, has made a grant of any 
 property, benefit, right, or privilege, imposing at the same time 
 certain public duties or obligations, and the grant has been 
 accepted, the public may enforce the performance of the duty by 
 indictment, and individuals peculiarly injure^ by action (u). 
 When statutory powers and authorities are granted by permissive 
 words, they are permissive only so long as the benefits they confer 
 are not taken Under them, for as soon as the grantee takes the 
 advantage of the statute, and acts on their powers, he takes all the 
 burdens attached by those acts to the benefits, and is liable to an 
 action at the suit of any person who has sustained special damage 
 by the non-performance of the statutory duty (x). 
 
 Where a duty is imposed by statute upon a public of&cer, and no 
 provision is made for the payment of any remuneration, an action 
 is not maintainable upon the statute for the recovery of any 
 remuneration (?/). 
 
 (<) And Bee Hill t. Thompson, 8 Taxini. {x) NicJioU \. Allen, 1 B. 4: S. 916; 
 
 401, Dallas, J. 31 Law J., Q. B. 283. See ante, p. 38. 
 
 (m) Lyme Regis (Mayor of) t. Henley, (y) Jones v. Carnuwtken [Mayor of, 
 
 1 B. N. C. 222 ; 2 CI. & Mn. 331. cfcc), 8 M. & W. 605. 
 
57 
 
 CHAPTER II. 
 
 OF INFKINGEMENTS UPON RIGHTS NATURALLY INCIDENT TO 
 THE POSSESSION AND OWNERSHIP OF LAND. 
 
 Section I. — Of the right and burtlien of 
 natural sen-itude. — ^Torts arising from 
 disturbance of rights of seryitude — 
 Natural and necessary servitudes — 
 Dominant and servient tenements — 
 Prsedial and urban servitudes^ — ^Servi- 
 tudes accessorial to the drainage of 
 lands — Of the natural servitude of 
 support from adjoining lands — Mutual 
 rights and duties of separate owners 
 of the surface and subsoil — Abridge- 
 ment of the right and servitude of 
 support by express contract — TranS' 
 fer of natural servitudes— rTorts aris- 
 ing from the diversion of running 
 water — Diversion of water for pur- 
 poses of irrigation: and drainage — 
 Effect of acquiescence in the unlaw- 
 ful diversion of water — Of the right 
 to pen back water — Injuries from the 
 defilement of streams — Disturbance 
 of the pex'missive use and enjoyment 
 
 of water — Right to well water — Statu- 
 tory interest of navigation companies 
 in the water of navigable rivers. 
 Section II. — Of the remedy by action and 
 hy injunction for infringements of rights 
 incident to the possession and- ownership 
 of land.- — Direct and consequential 
 injuries — Parties to be made plaintiflFs 
 — Tenant and reyersioner — Parties to 
 be defendants — Declaration of the 
 cause of action — Pleadings — Defences 
 — Evidence — Damages — A pportion- 
 ment of damages as between tenant 
 and reversioner — Injunction to pre- 
 vent the disturbance of rights inci- 
 dent to the possession and ownership 
 of land — Jurisdiction of the Court of 
 Chancery to prevent infringements of 
 legal rights — Injunction to restrain 
 the diversion of water — Injunction to 
 prevent obstruction to the repair of 
 a watercourse in alieno solo. 
 
 SECTION I. 
 
 . OF THE EIGHT AND BURTHEN OF NATUKAL SEr.VITUDE. 
 
 Torts arising from the disturhcmce of rights of servitude. — We 
 have already seeu that every invasion of a man's legal right con- 
 stitutes a tort or civil wrong, in respect of which compensation in 
 damages is recoverable {ante, p. 7) ; and one of the most interesting 
 and important branches of the law of torts is the law regulating 
 the rights, duties, and responsibilities of neighbouring landowners, 
 in respect of the use and enjoyment of their respective properties. 
 
 Natural and necessa.ry servitudes. — The unrestricted ownership 
 of property naturally carries with it a right to do whatever the owner 
 pleases with his property, without regard to the question whether 
 what lie does tends to the injury of another or not; but the common. 
 
58 NATUEAL SERVITUDES. [CHAP. II. 
 
 interests of mankind require certain restrictions to be placed upon 
 this freedom of ownership, to prevent one proprietor from .so using 
 and managing his property as to render it a source of injury and 
 annoyance to another. Thus, it is impossible for landed property 
 to be beneficially occupied and enjoyed unless one landowner, or 
 occupier, is prevented from damming up or diverting the natural 
 streams and watercourses on his land, and thereby depriving his 
 neighbour of water, which would otherwise naturally flow to him. 
 Neither could land be usefuUy and beneficially cultivated or enjoyed 
 if one man was allowed to dig pits, mines, or quarries, so near to the 
 boundary of his estate, that his neighbour's land, being deprived of 
 its natural support, would slide down and sink into the hoUow (a). 
 
 Every landed estate, therefore, is burthened with a certain duty 
 or service, which it is bound by law to render to the adjoining pro- 
 perty. In the Eoman law this service was denominated a servitude 
 — a term used to denote both the right and the obligation (h). The 
 Eoman servitude was either affirmative or negative. The af&rmg,tive 
 servitude bound the proptrietor to suffer something to be done on 
 his own land for the benefit of the adjoining estate. The passive 
 servitude merely required him to refrain from doing something, 
 which, if done, would be injurious to his neighbour. 
 
 Domi'iiant and servient tenements. — The land on which the 
 burthen was imposed was called the servient tenement, and the estate 
 or property which had the. right to the servitude was called the 
 dominant tenement. The existence of the benefit in favour of one 
 property, and the burthen thereby imposed upon another, depended 
 upon the lands being so situate as to render it a necessary adjunct 
 to the beneficial use and enjoyment of the dominant tenement ; 
 and the exercise of the right of servitude was confined to what was 
 reasonable and necessary for such enjoyment, and merely accessorial 
 thereto. 
 
 Prcedial and urban servitiides. — Servitudes among the Eomans 
 were further divided into prsedial and urban servitudes. The term 
 "pra?dial servitude" was used to denote the burthen imposed upon 
 one field, or parcel of cultivated ground, in favour of the use and 
 enjoyment of another adjoining piece of cultivated land ; whilst the 
 term " urban servitude " was applied to the burthens imposed upon 
 houses and buildings, whether situate in town or country. lii the 
 Eoman law, through the operation of urban servitudes, one neighbour 
 might be permitted to place a beam upon the wall of another ;' or 
 might be compelled to receive the droppings and currents from the 
 
 (a) Bonomi r. Backhouse, Ell. Bl. & tenementum vioini submergatur ; item 
 
 En. 659. ne faciat fossam in suo per quam aquam 
 
 (&) Item a- jure imponitur servitus vioini divertat, vel per quod ad alveum 
 
 prBediorum vicinorum : scilicet ne quia suum priBtinum reverti non possit in 
 
 Bt&gmim suum altius tollat, per quod toto vel in parte. Bracton, lib. 4. foL 221. 
 
SECT. l.J DOMINANT AND SERVIENT TENEMENTS. 59 
 
 gutter-pipes of another man's house upon his own house, area, or 
 sewer ; or might be exempted from receiving them ; or restrained 
 from raising his house in height, lest he should darken the habita- 
 tion of his neighbour (c). But our own law does not impose any- 
 such burthen, cxjui/re, naturce, upon adjoining proprietors; but the 
 servitude may be established by contract, grant, or prescription 
 {post, ch. 3). 
 
 There are, therefore, two principal classes of servitudes in our 
 law : viz. natural servitudes, which are derived from the situation 
 of places, and are a necessary and natural adjunct to the properties 
 to which they are annexed ; and conventional servitudes, which are 
 founded on contract, and are established by grant or prescription 
 {^ost, ch. 3). 
 
 The right and burthen of natural servitude are contemporaneous 
 with the right of property itself (c^. 
 
 Natural and necessary servitudes accessorial to the drainage of land. 
 — Land cannot be cultivated or enjoyed unless the springs which 
 rise on the surface and the rains that faU thereon be allowed to 
 make their escape through the adjoining and neighbouring lands. 
 All lands, therefore, are of necessity burthened with the servitude 
 of receiving and discharging aU waters which naturally flow down 
 to them from lands on a higher level ; and if the owner or occupier 
 of the lower lands interposes artificial impediments in the way of 
 the natural flow of the water through or across his lands, and by so 
 doing causes the higher lands to be flooded, he is responsible in 
 damages for infringing the natural right of the possessor of such 
 higher lands to the- natural outfall and drainage of the soil, unless 
 he has gained a right to pen back water by contract, grant, or pre- 
 scription, in the manner presently pointed out {post, p. 66) (e). So 
 if the proprietor of the higher lands alters the natural condition of 
 his property, and collects the surface and rkin-water, together at the 
 boundary of his estate, and pours it in a concentrated form, and in 
 unnatural quantities upon the land below, he will be responsible for 
 all damage thereby caused to the possessor of the lower lands (/). 
 
 Every landed proprietor has, ex jwe natural, a right to the con- 
 tinued flow of natural streams and ri-vulets running through his 
 land, and a right to the reasonable use of the water of such streams. 
 Land?, therefore, through which a natural stream flows, are bur- 
 thened with the servitude of receiving and transmitting the waters 
 of the stream to the lower land ; and the possessor of the land, 
 through which the stream runs, is clothed with the duty of keeping 
 
 (c) Instit. lib. 2, tit. 3, s. 1. 29 Law J., Bxch. 81 j Dig. lib. 39, 
 
 {d) Pardessus, Tr. des. Serv. Intro- tit. 3. 
 
 auction, 1. (/) ^^'iJC T. Samock, 8 So. N. K. 46. 
 
 (c) Shury' v. Piggot, 3 Bulstr. 340. See Harriaon v. Great Northern E, Co., 
 
 Ohasemore v. Richards, 7 H. L. C. 349 ; 33 Law J., Exch. 267. 
 
GO NATURAL SERVITUDES, [CHAP. II. 
 
 the channel and bed thereof free from artificial and unnatiiral 
 ol?structions. 
 
 In the Eoman law, we find that every proprietor of land is en- 
 joined to refrain from doing anything on his land to impede the 
 natural flow of water from the high land to the land below, whilst 
 the proprietor of the higher land is prohibited from sending, by 
 means of artificial contrivances, larger quantities of water on to the 
 lower land than would naturally flow there, or altering the course 
 of streams and giving a new direction to the surface water, to the 
 prejudice of the proprietor of the lower land {g). 
 
 In the Code Napoleon, under the 'hez.A. oi " Servitvdes derived 
 from the Situation of Places," we read, that " All lower lands are 
 subjected, as regards those which are higher, to receive the waters 
 which flow naturally therefrom, to which the hand of man has not 
 contributed. The proprietor of the lower ground cannot raise a 
 bank which shall prevent such flowing, nor can the superior pro- 
 prietor of the higher lands do anything to increase the servitude of 
 the lower lands " (h). 
 
 Statutory jpowersfor the improvement of the drainage of lands for 
 agricultural purposes have recently been conceded or extended to 
 various drainage boards, or public bodies, facilitating the removal 
 of weirs, dams, and obstructions in streams and rivers, and the 
 granting of compensation to the owners of them; the deepening, 
 cleansing, repairing, and maintaining watercourses or outfalls for 
 water, and walls and defences against the inroads of water, and the 
 making and maintaining of new drains, watercourses, and out- 
 falls (i). Power is also given to private owners to procure outfalls (k). 
 
 Of the natural servitude of support from adjoining latids. — ^Eveiy 
 proprietor of land is entitled of common right to such an amount 
 of lateral support from the adjoining land of his neighbour as is 
 necessary to sustain his own land in its natural state, not weighted 
 by walls or buildings (I). If the land has been weighted by super- 
 structures, the landowner who has thus weighted his land is not 
 entitled, ex jure natures, to the additional support from his neigh- 
 bour's soil, necessary for the maintenance of the buildings, for one 
 landowner cannot, by altering the natural condition of his land by 
 erecting bviildings thereon, deprive his neighbour of the privilege 
 of using his land, as he might have done before (m). But where 
 
 (g) Pardessus, part 2, ch. i. s. 1. Ob- Ireland, 26 & 27 Vict. c. 88 ; 27 & 28 
 
 ligations qui cono^rnent les eaux. Dig. Vict. c. 72, and 28 & 29 Vict. c. 52. 
 
 lib. 8, De Servitutibus. (k) 24 & 25 Vict. e. 133, s. 72, et seq. 
 
 (A) Cod. Nap. No. 640—642. (I) Hwmphries v. Brogden, 12 Q. B. 
 
 (i) See 10 & 11 Vict. c. 38, 24 & 25 ' 744. Solomon y. Vintners' Company, 4 
 
 Vict. c. 133, and 32 & 33 Vict c. 72. H. & N. 685 ; 28 Law J., Exch. 3f 0. 
 
 Griffiths v. Longdon amd EUersfield Drain- See Murchie v. Black, post, p. 63. 
 
 acje Board, L. R., 6 Q. B. 738. As to (m) Wyatt v. Ha/rrison, 3 B. & Ad. 
 
 876. Partridge v. ScoU, 3 M. & W. 220. 
 
SECT. 1.] OF SUPPORT. 61 
 
 the houses are ancient, and the additional support required by them 
 has been enjoyed for twenty years, the owner will, in general, have 
 acquired a right to the continued enjoyment of such additional 
 support (n). 
 
 In an old case in EoUe's " Abridgement," it is said, that " if A 
 be seised in fee of copyhold land closely adjoining the land of B, 
 and A erect a new house upon his copyhold land, and any part of 
 his house is erected on the confines of his land adjoining the land 
 of jB, if 5 afterwards dig his land so near to the foundation of the 
 house of A, but not in the land of A, that by it the foundation of 
 the messuage, and the messuage itself, fall into the pit, still no 
 action lies by A against B, inasmuch as it was the fault of A him- 
 self that he built his house so near the land of B, for he cannot by 
 his own act prevBnt B from making the best use of his land that he 
 can : but it seems, that a man who has land closely adjoining my 
 land, cannot dig his land so near mine that mine would fall into 
 his pit ; and an action brought for such an act would lie " (o). 
 
 If a man digs a well on his own land so close to the soil of his 
 neighbour as to require the support of a rib of clay or stone in his 
 neighbour's land to retain the water in the well, no action wUl lie 
 against the owner .of the adjacent land for digging away such clay 
 or stone which is his own property, and thereby letting out the 
 water, unless a prescriptive right to the use of the water has been 
 gained by twenty years' uninterrupted enjoyment (p). 
 
 Of the TMtural servitude of swpjport from the subsoil to the sur- 
 face of land, when the surface and subsoil constitute separate free- 
 holds vested in different proprietors — Mutual rights and duties of 
 separate owners of the surface and subsoil. — The possession of the 
 surface of land may be in one man and the subsoil in another, by 
 separate grants from the owner of the inheritance ; or the owner 
 may grant the surface to another to be cultivated and enjoyed, re- 
 serving to himself a right to the subsoil, and to all stones and minerals 
 beneath the surface. "When land is so held each proprietor is 
 possessed of a " close," and has a separate and distinct freehold. If 
 the owner of lapd grants the subsoil, reserving the surface to him- 
 self, he impliedly grants reasonable means of access to the subsoil, 
 and the grantee would have a right to go upon and dig through 
 the surface, to enable him to reach the subsoil, if he had no other 
 means of access thereto. But the owner of the subsoil may main- 
 
 (n) Hunt v. Peake, 1 Johns. 710 ; 29 to place the new etructure a certain dis- 
 
 Law J., Ch. 785. In the Eoman law, tance from his neighbour's boundary, 
 
 under the head of legal restrictions upon (o) WUde t. Minsterley, 2 Roll. Abr. 
 
 rights of property, we find that no pro- 565. 
 
 prietor of land was permitted to exca- ip) Tindal, C. J., Acton t. Elundell, 
 
 vate on his own land so as to endanger 12 M. & W. 353. Reg. v. Metrop. Board, 
 
 his neighbour's building ; but that every 32 Law J., Q. B. 110. See post, ch. 3. 
 man erecting a new building was bound 
 
62 NATURAL SEEVITUDES, [OHAP. II. 
 
 tain an action against the owner of the surface if he digs holes in 
 the subsoil to a greater extent than is reasonably necessary for the 
 proper and fair use, cultivation and enjoyment of the surface (^) • 
 and the owner of the surface may, on the other hand, maintain an 
 action against the owner of the subsoil if the latter carries on his 
 mining and subterraneali Operations so as to interfere with the fair 
 use and enjoyment of the surface in accordance with the ancient 
 maxims, " prohibetur ne quis faciat in suo quod nocere possit alieno," 
 and, " sic utere tuo ut aUenum non laadas " (r). 
 
 The owner of the surface, therefore, is entitled of common right 
 to the support of the subjacent strata, so that the owner of the 
 subsoil and minerals cannot lawfully remove them without leaving 
 support sufficient to maintain the surface in its natural state (s)- 
 This is a rule of law founded on natujal justice, and is a restraint 
 on the exercise of dominion over property essential to the beneficial 
 occupation and enjoyment of the soil. If land not granted ex- 
 pressly for building purposes is weighted with buildings, the owner 
 of the surface has no right to the additional support necessary for 
 the maintenance of the buildings, until he has acquired the right 
 by grant or prescription (post, ch. 3) ; so that if the owner of the 
 subsoil in working mines leaves sufficient support for the surface, 
 but the land sinks in consequence of the weight of the buildings 
 that have been placed upon it, the owner of the subsoil is not 
 responsible for the damage done (if). But if the weight of the 
 buildings has in no way caused the sinking of the land, and the 
 land would have fallen in whether buildings had been erected on 
 it or not, the building oa the land becomes quite immaterial, and 
 the defendant is responsible in damages to the extent of the injury- 
 done to both houses and land (u). 
 
 Upon every demise of mineral or other subjacent strata the lessor 
 impliedly retains his right of support from the subsoil to the sur- 
 face, in the absence of express words showing distinctly that he 
 has waived or qualified his right (v). 
 
 If the owner of the subsoil excavates it without leaving proper 
 support for the surface, the owner of the surface has no right of 
 action until some actual damage has been sustained by him. " If 
 that were not so, the owner of the subjacent land could not abstract 
 
 (q) Cox T. Glue, 5 C. B. 551. Eq. Ca. 613. 4 Engl. & Ir. App. 377. 
 
 (r) Wilkimson v. Provd, 11 M. &W. 33. Post, ch. 3, sect. 2. 
 Sowbotham v. WUson, 8 EU. & Bl. 142 ; (i) BacMume t. Bononi, 9 H. L. C. 
 
 8^ H. L. C. 359 ; 30 Law J., Q. B. 965. 503; affirming Bonomi y, "" 
 
 (s) Bmvplvnea t. Brogden, 12 Q. B. Ell.Bl.&EH. 622; 28 Law J., Q. B 
 
 739 i 28 Law J., Q. B. 10. Smart v. (u) Brotim v. Mohms, 4 H. & N. 191j 
 
 Morton,- 5 Ell. & Bl. 47 ; 24 Law J., Q. 28 Law J., Exoh. 250. Jtogers t. Taylor, 
 
 B. 260. Soherts v. Saines, 27 ib. Exch. 2 H. & U. 828 ; 27 Law J., Exch. 175. 
 
 49. As to copyhold allotted under an SameiKy. Knowles, 6'H. & N. 454 ; 80 
 
 InclOsure Act, see Wahefidd v. Duke of Law J., Exch. 102i Sunt v. Peake, 1 
 
 Bucdeugh, 36 Law J., Ch. 763. L. E. 4 Johns. 712 ; 29 Law J., Ch. 786. 
 
 (■») DugdaieY. R6bertson,5~&3,y & J. 700. 
 
SECT. l.J OF SUPPOKT. 63 
 
 the mmerals, nor avail himself of the fuU benefit of his property, 
 without being liable to an action ; though, before any damage had 
 -actually occurred he had, by substituting oth6r means of support, 
 removed all danger of injury to the plaintiff's property. This 
 ■would be wholly inconsistent with the right of the proprietor to 
 use his property as he pleases, provided he does not injure that of 
 his neighbour " (x). 
 
 Abridgement of the right and servitude of support by express con- 
 tract. — If the owner of land with < subjacent mines grants away 
 the mines, together with the power of raising the minerals, without 
 regard to any injury done thereby to the surface, such a grant 
 would, it seems, be good, and would bind the inheritance, and his 
 estate in the surface would pass to his assigns, abridged to that 
 extent of the right of support from the minerals. Hence it seems 
 to follow, that it is competent for the owner of the surface of land 
 effectually to curtail by grant, in favour of the owner of subjacent 
 mines, the right to support therefrom (?/). And similarly where a 
 man sells a portion of his land, or the whole of his land in several 
 lots, he may by the stipulations contained in the conditions of sale 
 deprive himself, or his vendee, as the .case may be, of the right to 
 lateral support from the adjoining land (z). However, where a 
 man sold land adjoining his own, and the vendee covenanted by a 
 separate deed that the vendor should not be liable for any sub- 
 sidence of the land sold, created by the vendor working the mines 
 under his own land adjoining, it was held that the vendor was, never- 
 theless, liable for such subsidence to persons who had purchased 
 the land from the original vendee without any notice of the deed (a). 
 
 Transfer of natural servitudes. — Natural servitudes derived 
 from the situation of places are regarded as appurtenant to the 
 lands for whose benefit they exist, so that they cannot be alienated 
 from the land, and cannot be transferred from one person to another 
 as benefits and privileges in gross. Being annexed to the land 
 itself, the right to exercise them passes with the land to every 
 owner and possessor of the dominant tenement. 
 
 Torts arising from the diversion ofrmming water. — Every landed 
 proprietor has a right to use the water of a natural stream flowing 
 along his land for any reasonable purpose of his own, not incon- 
 sistent with a similar right in the proprietors of the land above 
 and below ; he cannot seriously diminish the quantity nor dete- 
 
 (k) Per Wightman, J.,JBonomiv. Back- (a) Rkha/rds t. Swrper, L. R, 1 Exoh. 
 
 Iwuse, Ell. Bl. & BlI. 637; affirmed i&. 199. In tMs case the land sold was oopy- 
 
 646 ; 28 Law J., Q. B. 378. hold, and the deed was hot entered on 
 
 {y) Rowhoiham v. Wilson, 8 EH. & Bl. the court rolls, but the court would, it 
 
 123 ; 27 Law J., Q. B. 64 ; 8 £U£i. 0. seems, hare decided in the same way 
 
 359 ; 30 Law J., Q. B.. 965. . (diss. Pollock, 0. B.) had the land been 
 
 (z) Mwrchie v. Black, Zi Law J., C, P. freehold. 
 337. 
 
64 NATURAL SERVITUDES. ' [CHAP. II. 
 
 riorate the quality 0/ the water which would otherwise descend, if 
 by so doing he deprives another riparian proprietor of the beneficial 
 use of the water, unless he has gained a title, by grant or prescrip- 
 tion, so to use the water (&). But an artificial rivulet created by the 
 drainage and pumpiug of a colliery may be diverted before it flows 
 into the natural stream, and the proprietor on the banks of the 
 natural stream will have no right of action for the diversion 
 of that water (c). So, conversely, where a canal company has for 
 many years diverted water from a stream, above the plaintiff's land, 
 and has subsequently restored it, the plaintiff cannot complain of 
 damage resulting from a flood caused by such restoration {d). 
 
 A right to the use and enjoyment of a natural watercourse and 
 water is not affected by reason of the supply of water being uncertain 
 and precarious, and dependent upon the dryness or humidity of the 
 season. The intervention of a single dry season or of a series of 
 dry seasons, cutting off all the water for a shorter or a longer 
 period, cannot deprive a person of his right to the water when it 
 re-appears again in its ancient channel. Where a natural stream, 
 which had its rise in land of the defendant, whence it flowed by an 
 underground channel to a lane dividing the defendant's land from 
 the plaintiff's, meandered a little way down the lane before it 
 entered the plaintiff's land, and the plaintiff slightly varied the 
 ancient channel, by making a straight cut across the lane from the 
 spout under the defendant's hedge to his own premises, it was held 
 that his right to the water was not affected by so slight an altera- 
 tion of the natural channel, (e). 
 
 Diversion of water for purposes of irrigation and drainage.— -li 
 a man places a temporary bar or weir across ,a stream in order to 
 turn it into his own land for purposes of irrigation, and by that 
 means seriously diminishes the current to the prejudice of a riparian 
 proprietor lower down the stream, it is no answer to an action by 
 the latter for damages to set up that the water was only temporarily 
 arrested by the defendant for the purpose of enabling him to irrigate 
 his land (/). The right of the possessor of land through which a 
 ' natural stream flows to use the water of the stream for irrigation 
 and for manufacturing purposes, depends upon the particular cir- 
 cumstances of each case, upon the volume of ,the stream, the extent 
 of the loss of water from evaporaltion or absorption, and the amount 
 of injury inflicted thereby upon other riparian proprietors. " On 
 the one hand, it could not be permitted that the owner of a tract 
 
 (i) Embrey v. Owen, 6 Exeh. 370. (d) Mason v. Shrewsbury and Herefm-A 
 
 Mason V. HiU, 5 B. & Ad. 13. Chase- Railmay, L. R., 6 Q. B. 578. 
 more v. Richards, 7 H. of L. Ca. 349 ; 26 (e) Hall v. Swift, 6 So. 169. Dig. lib. 
 
 Law J., Exch. 401. 8, tit. 3, 1. 35. 
 
 (c) Wood T. Waud, 3 Exch. 779. (/) Sampson v. Jffoddinoit, 1 0. B., N. 
 
 S. 612. 
 
SECT. 1.] RIGHT TO WATEE. — KIPAEIAN PEOPEIETORS. 65 
 
 of many thousand acres of porous soil abutting on one part of 
 the stream should irrigate them continually by canals and drains, 
 and so cause a serious diminution of the quantity of water ; and, 
 on the other hand, one's common sense would be shocked by sup- 
 posing that a riparian owner could not dip a watering-pot into the 
 stream in order to water his garden. It is entirely a question of 
 degree, and it is impossible to define precisely the limits which 
 separate the reasonable and permitted use of the stream from its 
 wrongful application " (cf). 
 
 In the case of casual and intermittent surface waters not running 
 in any defined channel, but spreading themselves over the surface 
 of the land, there is nothing to prevent the landowner from dealing 
 with them as he pleases (A), but he must not divert the perennial 
 supply of water from a spring-head, or prevent it from flowing by 
 , a natural channel to the lands below (i). He has no right by any 
 system of artificial drainage to cut off the natural visible supply 
 of surface-water from ancient water-courses and rivulets ; and he 
 ought so to arrange his drains as to restore the water at the boundary 
 of his estate to its ancient channels, that the lands situate on a 
 lower level may not be deprived of their natural supply of the 
 precious element, for a man has no right, as we have seen, to 
 make improvements on his land which produce injury to his 
 neighbour (/). 
 
 By the French law, the proprietor of a field in which a spring 
 -rises or through which it flows, is not entitled to take and appro- 
 priate to his own use the whole of the water, or divert it from 
 other proprietors of lower fields through which the water flows. 
 He cannot change the course of the stream, or materially diminish 
 the ancient supply of water ; but every proprietor of land border- 
 ing on a running stream may use it for the purpose of irrigating 
 his land, and when his estate is intersected by such water, he 
 may divert it for purposes of irrigation, on condition that he restores 
 it at the boundary of his property to its ordinary channel ; and in 
 all disputes respecting the right to take water from running 
 streams, the courts are enjoined to reconcile as much as possible 
 the interests of agriculture with the respect due to property and 
 the rights of individuals (k). 
 
 Effect of acquiescence in the unlawful diversion of water from a 
 running stream. — If a portion of a natural stream has been unlaw- 
 
 (g) Enibrey v. Owen, 6 Exch. 372. Ouardians of Glutton Union, 1 H. & N- 
 
 Miner v. Oilmour, 12 Moore, P. 0. C. 627 ; 26 Law 3., Exch. 146. 
 
 156 Norbwry (Lord) r. KiUUn, 9 Jur. 0') Briscoe v. Brought, 11 Ir. C. L. K. 
 
 N. S. 132. 2S0. See ante, p. 3. Hilliard on Torts, 
 
 (A) Broadbentv. Bamsboiham, 11 Exch. p. 105, et seq. ; and post, p. 77, Ennor v. 
 
 617 • 25 liaw J., Exch. 115. Ba/rwell. 
 
 [i) Ennor v. BwrweU, 2 Giff. 424. {k) Cod. Nap. liy. 2, No. 640-645. 
 Broim v. Best, 1 Wils. 174. Dudden v. 
 
66 NATURAL SERVITUDES. [CHAP. 11. 
 
 fully diverted for the supply of a mill, causing an injurious dimi- 
 nution in the flow of water to the proprietors lower down the 
 stream, such proprietors must interrupt the unlawful enjoyment 
 of the diverted water by taking legal proceedings against the 
 wrong-doer, in order to prevent the injurious act from being 
 eventually converted into a right {post, ch. 3). If the wrong-doer 
 is convicted and fined, or a verdict is obtained against him in an 
 action, the conviction and record of the proceedings show con- 
 clusively that the enjoyment was interrupted, and that there was 
 no acquiescence in the unlawful use of the water (I). 
 
 Of the right to;pen hack water. — A landowner may put a pen stock 
 on his own grounds, and pen the water there as he wiU, until he 
 has done damage t6 his neighbour. " Until you prejudice your 
 neighbour by penning back the water, you do that which you have 
 a right to do : but where you begin to injure your neighbour, there 
 your right to pen back terminates " (m), unless you have penned 
 back under a title by grant or prescription {post, ch. 3). No action 
 will lie for diverting or throwing back the water, except by a per- 
 son who sustains actual injury therefrom {n). But the person by 
 or over whose land the stream passee, must not shut the gates of 
 his dams and detain the water .unreasonably, or let it off in unusual 
 quantities to the prejudice of his neighbour. The just and equitable 
 principle is given in the Eoman law : " Sic enim debere quern 
 meliorem agrum suum facere, ne-^vicini deteriorem faciat." (o). If 
 the user by the defendant has been beyond his natural right, and 
 is injurious to the natural rights of the plaintiff, an action is main- 
 tainable, unless the user is sanctioned by grant or prescription {p). 
 
 Injuries from the defilement of streams. — Every riparian proprietor 
 has a right to the flow of the stream through his land in its natural 
 purity ; and if a riparian proprietor higher up the stream throws 
 dirt and ashes, or gas refuse into it, so as to defile the water and ' 
 render it unfit for use, to the damage of another riparian proprietor 
 who has been in the habit of using the, water, an action is main- 
 tainable for the injury {q), unless an adverse right has become 
 vested in the other by grant or prescription. And it would seem 
 that an action may be maintained without proving damage, for such 
 pollution would, if allowed to continue, become a right (r). A 
 right to foul a stream with all sorts of refuse may, as we shall 
 
 (f) Eaton V. Swamsea Water Co., 17 Q. (o) Parke, B., Emhrey v. Owen, 6 Exoh. 
 
 B. 267. 371. 
 
 (to) Lawrence, J., Cooper v. Barher, 3 (p) Sampson t. Hoddmott, 1 C B., N. 
 
 Taunt. 108. S. 612; see post, ch. 3. 
 
 (m) WrigM v. Howard, 1 Sim. & Stu. (g) Mmgal/royd r. BoUmon, 7 Ell. •& 
 
 203. WUliams v. Morland, 2 B. & C. Bl. 391 '; 26 Law J., Q. B. 233 ; see^osi, 
 
 910. But see Hmrrop v. Ei/rst, post, ch. 4, a. 1. Nuisances. 
 
 p. 75. See also Bickett t. Morris, post, (r) See Crosaley v. lAgtitowUr, L. E., 3 
 
 ch. 6, sect. 2. Hilliard on Torts, p. 115. Eq. Oa. 296 ; 2 Ch. App. 478. 
 
SECT, l.j EIGHT TO WATEE. — EIPAEIAN PEOPEIETOES. 67 
 
 presently see, be established by proof Of the continued and un- 
 interrupted use of the stream as a drain and sewer for twenty 
 years (s). 
 
 Disturbance of the permissive use and enjoyment of water. — A land- 
 owner or occupier of a house who receives permission frbin an 
 adjoining landowner to draw water from the premises of the latter 
 through a pipe or watercourse, is entitled to an action for damages 
 if the water is fouled by a wrong-doer, and damage is sustained 
 by him from the fouling of the water. Though there may be no 
 right on the part of a plaintiff to have water flow to his premises, 
 yet if the water does come, and the defendant fouls it without 
 having any right so to do, and so causes foul water to flow iiito the 
 plaintiff's premises, and the plaintiff sustains damage therefrom, 
 and the defendant cannot justify, the plaintiff wiU be entitled to 
 recover all the damage he has sustained from the wrongful act. 
 The plaintiff in such a case relies upon no title to the water as a 
 riparian proprietor, but merely alleges that he was lawfully in the 
 enjoyment and use of water flowing through his premises in a pure 
 and unpolluted state, and that the defendant wrongfully fouled it (p). 
 
 It seems doubtful whether a ripariait proprietor can grant his 
 right to the flow of water to a person who is not a riparian pro- 
 prietor, so as to give such grantee a right of action agstinst a pro- 
 prietor higher up the stream for the diversion or fouling of the 
 water (m). But two adjoining riparian proprietors may clearly agree 
 to divide the stream into two channels ia the land of the higher 
 owner by making an artificial cut, by which the water reaches a mill 
 situate on the land of the lower owner, and after turning the null is 
 then returned into the original channel (v). 
 
 Of the right of landowners to well-water. — The right to the enjoy- 
 ment of the water of a stream flowing in its natural course over the 
 surface of land, and the right to underground water and springs 
 beneath the surface, are not governed by the same rules of law. It has 
 been held that a landowner has a right to sink a weU in his own land, 
 and get as much water as he pleases, although he thereby seriously 
 diminishes the supplyof water to the springs and weUs inhis vicinity, 
 or even drains them dry. The only remedy for the adjoining land- 
 owner consists in sinking deeper weUsi and using pumps and 
 mechanical appliances on his own land, to enable him to get back 
 the water (w). A landowner who has sunk a well iu his own land, 
 and thereby enjoyed the benefit of underground water, has no right 
 
 («) Seepost, chs. 3, 4. (v) Nuttail v. BraawOL, L. B. 2 Eich. 
 
 U) Laingy. Wludey, 3 H.& N. 686, 1. 
 
 affirmins Whaleiu r. LaAiw. 2 H. & N. W Chasemore v. Bichmds, 7 H. L. C. 
 
 476. ^ " " 349; 26 Law J., Exch. 401, Meg. v. 
 
 (it) Stockport Wakworks Co, v. Pomr, Metrop. BowA, <£?., 32 Law J., Q. B. 
 
 3 H. & C. 300. 105. 
 
 r 2 
 
68 NATURAL SEEVITUDES. [CHAP. II.' 
 
 of, action against a neighbouring proprietor who, ia sinking for and 
 getting coals from his soil in the usual and proper manner, causes 
 the well to become dry (x). 
 
 The use and consumption of the water from wells is not con- 
 fined to the reasonable wants of the occupiers of the lands in which 
 the well is sunk, nor restrained hy any consideration for the wants 
 and necessities of others. "Where the defendant sunk a well 
 seventy-four feet in, depth in his own land, adjoining the source of 
 an important river, which supplied water to various miUs and 
 manufactories, and pumped water from this weU for the supply of 
 a neighhouring town, at the rate of,half-a-miUion of gallons a-day 
 and upwards, and by this means obviously interrupted a great deal 
 of water which would have otherwise found its way into the river, 
 and so diminished the volume of water in the river, and prevented 
 the mill-owners from working their miUs full time, it was held that 
 the landowner, had not exceeded his natural rights, and that the 
 miEowners had no remedy for the injury they had sustained (jf). 
 But a landowner wiH be restrained from drawing off the sub- 
 terranean water in the adjoining land, if in so doing he draws oflF 
 water which has once flowed in a defined surface channel through 
 . such land (2). " If you cannot get at ,the underground water with- 
 out touching the water in a defined surface channel, you cannot get 
 at it at all " (a). 
 
 Of the flooding of lands from artificial collections of water. — ^Where 
 the owner of a coal-field excavated his coal, and in so doing left 
 large holiows, which filled with water, and, then, when the adr 
 joining landowner proceeded to work his coal, the subterranean 
 water from the hollows flowed into his workings and flooded ;them, 
 it was held that he had no right of action for the damage (6). 
 But where the owner of a mine on a higher level pumped up iato 
 it water from a lower level (for .the purpose of working a lower 
 seam), so that more water flowed into the adjoining mine, which 
 was on a lower level, than would have resulted from the natural 
 gra,vitation cf the water from the higher to the lower level, an 
 action . wiU lie against the owner of the higher mine (c) ; for a 
 person who /or his ownpu/rposes brings upon his land, and collects 
 and keeps there, anything likely to do mischief if it escapes, such 
 as water or cattle, is prinwi /acie , answerable for all the damage 
 
 (k) A<^ v. BlundeU, 12 M. & W. 324. ranean water is still ' unsettled in' tVe 
 
 So by the Pandects, " Cum eo qui, in suo United States. See Hilliard on Torts, 
 
 fodiens, Ticini fontem arertit, nihil posse p. 109. 
 
 agi ;' nee de dolo actionem et sane non (2) Gramd Junction Canal Co, v. 
 
 debet habere ; si non animo ■vioini no- Shugwr, L. B., 6 Ch., App. 483. 
 
 cendi, sed snum agrum meliorem faciendj (o) Per Lord Hatherley, C. S. C. 
 
 ■ idfeoiti"^Lib. 39, tit. 3, L 12. Domat. . - M SmUhv. Kennoh,7 C. B.665. 
 
 Liv.2itit.'8,B. 1. ■ ' (c) Bawd t. WilUmnson, ZZ Law J., 
 
 {y) OhmemoreT. Sichards, ut svp. The' C. P. 101. 
 doctrine on the subject of subter- 
 
SECT. 2.] EIGHT TO WATEK. 69 
 
 whicli is the natural consequence of its escape, although he has not 
 been guilty of any negligence (d). The owner of one story of a 
 house, however, is not liable, without negligence, to the owner of 
 the story below for the damage caused by a rat eating into a 
 cistern on the upper floor, and so causing the water to flow into the 
 lower story, the cistern being for the mutual benefit of both storys, 
 and the action of the rat being in the nature of vis majffr (e). 'Nov 
 is the owner of a tree in a boundary fence, the leaves of which are 
 poisonous to cattle, &c., answerable for the clippings being on his 
 neighbour's land, and poisoning his cattle, u.nless, it seems, he him- 
 seK put them there (/). 
 
 Statutory property and interest of navigation companies in the 
 water of a navigalle river. — Acts of Parliament incorporating com- 
 panies for the purpose of rendering rivers navigable, and pur- 
 porting to vest in the company the river or stream to be made 
 navigable, vest in the company much more extensive rights over 
 the water of the stream than those which the common law 
 gives to riparian proprietors. They create a new species of 
 statutory property and interest in the water, which renders any 
 abstraction of it unlawful, except it be by a riparian proprietor 
 for his necessary purposes, although no actual damage may be 
 done to the navigation (g). But navigation compEinies and 
 canal companies have no power of granting any exclusive right of 
 sailing upon or navigating a river or canal beyond what is expressly 
 given to them by statute. And, therefore, where a canal company, 
 by deed, granted to the plaintiff " the sole and exclusive right or 
 liberty to put pleasure-boats on the canal, and let them out for 
 hire, for purposes of pleasure only," it was held that the canal 
 company had no power to grant any such exclusive privilege (A). 
 
 SECTION II. 
 
 OF THE REMEDY BY ACTION AND BY INJUNCTION FOE INFEINGE- 
 MENTS OF " EIGHTS INCIDENT TO THE POSSESSION AND OWNEE- 
 SHIP OF LAND. 
 
 Direct and consequential injuries. — If the injury of which the 
 plaintiff complains has been committed by the defendant upon 
 land in the actual possession and occupation of the plaintiff, and 
 is consequently the result of a direct act of trespass, the plaintiff 
 
 (d) Fktcher v. Bylcmcls, L. R., 1 Exch. (J) Wilsony.Newherry, L.E.,7 Q. B. 31. 
 
 265 (Bxch. Ch.) ; 3 Engl. & Ir. App. (g) The Medmay Qo. t. Earlof Bonrney, 
 
 330. 9 C. B., N. S. S75 ; 30 Law J., C. P. 
 
 («) Oaritam y. Tayhr, L. E., 6 BxoL 236. 
 
 217. (K) EUl V. Twpper, 2 H. & C. 121. 
 
70 INJUEIES TO KEALTY. [CHAP. 11. 
 
 should bring his action and frame his proceedings for a trespass 
 upon his land (post, oh. 6). If the injury results from something 
 done by th,e defendant on his own land, which is unla,wful only 
 in respect of the consequential injury thereby occasi,pned to the 
 plaintiff, the action must ^^ brought for the consequBflitial injury, 
 and not fpf a trespass, and proof of actual substantial damage is, iji 
 general, essential to the cause of action (h). 
 
 Parties to be mapis plainii^s — Tenant and remrsipnpr. — The 
 aptual occupier of the Jand is in general thp prpper person to 
 maintain an .action for wrongful acts of a temporary charapter in- 
 terfering with the beneficial use and enjoyment of the jprpperty, 
 and dinunishing the value of his possessory interest. If the injury- 
 is of a pepnanent nature, causing damage tp the inheritance, then 
 the reyersioner is also entitled to maintain an actipn in respect 
 thereof, fpr altjiough the evil might be remedied before the end of 
 th,e term, yet in the meantime, if the reversioner wished to sell his 
 interest, it would be less valuable (i). It is necessary, therefore, 
 in an action by a reversioner, to show a permanent inj^ury to thp 
 property, lessening its valiie in the market (j), or an infringement 
 upon the plaintiff's rights as landlord. If A is seised in fee of 
 the reversion of a close, expectant upon a term for years, and B is 
 possessed of another close adjoining, thereto, through which close 
 there runs a rivulet, and B stops it, per gybod the close of A is sur- 
 rounded, so that the timber-trees, &c., become rotten. A, in respect 
 of the prejudice to the reversion, and the termor, in respect of the 
 injury to the possession, and the loss of the shade, shelter, &c., of 
 the trees, may each have an actipn, and satisfaction given to one 
 is np bar to the other (k). 
 
 The person who sues in respect of an injury to the reversion, 
 must be the person in whom the legal estate is vested, and not a 
 person having a mere equitable interest as cestwi qui trust (Z). If 
 several persons are entitled ■ to the reversion as joint tenants, or 
 tenants in common, they should all be joined as plaintiffs in an 
 action for an injury to the reversion (jn). 
 
 Of the parties to le made; defendants. — ^Every perspn who orders 
 or authorises an obstruction to the enjoyment of the natural rights 
 incident to the ownership of real property, is responsible for the 
 injury, and for aU consequential damages, and. so are his servants 
 apd ageij.ts, who carry into effect the orders he has given ; and 
 wh,en several persons have been jointly poncerned in the commis- 
 sion of the wrongful act, they may alj be made defendants and 
 
 (h) See note (n), p. 66. Crosiley v. Ajid see ^os«, ch. 3, s. 2, & oh. 5. . 
 Lightowler, ante, p. 6fl. (I) Valkmce y. Savage, 7 Bing. 599. 
 
 (i) Jesser v Clifford, 4 Burr. 2141. (m) Bae. Abr. Joiht Tenants, K. And 
 
 (j) Jdchon v> Pesked, 1 M. & S. 234. see further, pogt, ch. 19, as tp the joinder 
 
 (k) Sedmgfleld y. Onslow, 3 Ley. 209, of parties to actions ex delicto. 
 
SECT. 2.] ACTION FOR DAMAGES — DECLARATION. 71 
 
 charged as principals, or the plaintiff may sue one or more of them 
 at his election (n). 
 
 Of the plaintiff's declaration of his came of action — Veriue. — The 
 venue or statement in the margin of the declaration of the name of 
 the county from whence the jury are to be summoned, and where 
 the cause of action is to be tried, is local in aU actions for infringe- 
 ments of territorial rights 'annexed to lands or tenements, so that 
 the cause of action must be laid and tried in the county in which 
 it arose, unless a judge's order is obtained for changing the venue 
 and place of trial. The nature of the territorial right must be set 
 forth on the face of the declaration, and the plaintiff must claim it 
 by reason of his possession of a messuage, tenement, or land. If the 
 plaintiff complains of the diversion or fouling of water from a 
 natural watercourse, he must declare upon his own possession of 
 the place through which the water used to run, and set out the 
 course thereof, and show the mode in which the water has been 
 diverted, or fouled (o). The usual course is to set forth the plain- 
 tiff's possession of a messuage, tenement, or land, and aver that by 
 reason of such possession, he had a right to the enjoyment of an ' 
 uninterrupted flow of water of a natural stream running in its 
 natural bed, or flowing in its natural purity (as the case may be), 
 unto the messuage, tenement, or the land of the plaintiff, and that 
 the defendant wrongfully diverted large quantities of the water of 
 the stream, or wrongfully polluted and defiled the water thereof 
 (showing the nature of the diversion or pollution), and alleging that 
 the defendant thereby prevented the plaintiff from having his 
 accustomed and proper supply of water, or deprived him of the 
 beneficial use and enjoyment of the water (as the case may be), 
 claiming damages (p). 
 
 ■ If the plaintiff complains of an obstruction to the natural flow 
 of the water, he should show the nature of the obstruction and the 
 consequential damage in the flooding of the plaintiff's land, the 
 destruction of the grass and produce of the soil, and the deposit of 
 stone, sand, and rubbish upon the land, as the case may be, claiming 
 damages (q), or, if need be, a writ of injunction against the repeti- 
 tion or continuance of the injury. 
 
 A declaration which alleges that the plaintiff was lawfully in the 
 enjoyment and use of water flowing through his house and premises, 
 in a pure and unpolluted state, and that the defendant wrongfully 
 fouled and defiled the water by pouring into it the refuse of certain 
 chemical works, whereby the plaintiff was deprived of the use of 
 
 (n) See post, ch. 19. (p) Fmnhum v. Falmouth {Eairl of), 2 
 
 (o) Brown, v. Best, 1 Wils. 174. Parke, A. & E. 452. 
 
 B., Ohaiemore t. Richwrds, 7 H. L. 0, («) Oarlyonv.Lovenng,!^. &.'S.1U; 
 
 349_ 26 Law J., Exch. 251. 
 
72 INJUEIES TO KEALTY. [CHAP. II. 
 
 the water, and his property was deteriorated in value, seems to 
 disclose a good cause of action (r). 
 
 Declarations for infringements of the natural rigid to support from 
 adjoining land. — If injury has been done to the foundations and 
 walls of a dwelliag-house, or of buildings occupied by the plaintiff, 
 by excavations in the soil amounting to direct acts of trespass upon 
 the land. in the plaintift's occupation, the ordinary declaration for a 
 trespass upon realty {post, ch. 6, s. 2), properly describes the true cause 
 of action. If the injury has been done by a tenant in the possession 
 and occupation of the buildings and land under a demise froni the 
 plaintiff, the proper form of declaration is a declaration for waste 
 {post, ch. 5, s. 2). If the surface and subsoil are held by different 
 persons, and constitute separate freeholds, and the declaration is 
 founded on an injury to the owner of the surface by excavations 
 made by the owners of the subsoil, depriving the surface of its 
 natural support {ante, p. 61), it is sufficient to allege that the plaintiff 
 was possessed of the surface of certain land, and the defendant was 
 possessed of the subsoil, mines, and minerals, or of ceiiiain beds and 
 strata of stone beneath such surface, and that the defendant exca- 
 vated the subsoil, or dug out the minerals or stone, without leaving 
 sufficient support for the. surface, and by reason thereof the surface 
 of the land gave way, and sank into deep holes and hollows, and 
 became useless to the plaintiff, and certain crops growing iipon the 
 land were injured or destroyed (s). 
 
 A good cause of action is disclosed on the fac~e of a declaration 
 which alleges, that at the time of the committing of the grievance 
 of which the plaintiff complains, the plaintiff was possessed of 
 certain messuages, belonging to and supporting which messuages 
 were certain foundations which the plaintiff, by reason of his pos- 
 session of his messuages, ought of right to have enjoyed for the 
 support of such messuages, and that the defendant wrongfully dug 
 out and destroyed the foundations of the messuage's, and by reason 
 thereof they gave way and fell to the gTound, and the plaintiff was 
 deprived of the use of them {t). A declaration, also, by a rever- 
 si'oner, setting forth, that a messuage and land, with the appurte- 
 nances, were in the respective occupations of certain persons as 
 tenants thereof to the plaintiff, the reversion of the said messuage, 
 land, &c., then and still belonging to the plaintiff, and that the 
 defendant wrongfully made divers excavations in the said land, 
 under or near to the said messuage, without sufficiently shoring 
 and propping up the said messuage from the effects thereof, whereby 
 
 {r) Lamg t. 'WTiaky, ]Vhaley v. Laing, 28 Law J., Exch. 182. Jeffries t. Wit- 
 <^t«> P- 67. l^m, 5 Exoh. 792. 
 
 («) Mhhey T. Cwrter, 4 H. & N. 153; (t) Mogers v. Taylor, 2 H. & N. 829; 
 
 27LawJ., Exch. 173. 
 
SECT. 2.] ACTIONS FOE DAMAGES — PLEAS. 73 
 
 the land sank, and the foundations of the messuage, &c., gave way, 
 and the plaintiff was injured in his reversionary estate, discloses a 
 good cause of action (u). 
 
 Pleas by the defendant — 'Not guilty (x). — The plea of not guilty 
 operates as a denial only of the wrongful act alleged to have been 
 committed by the defendant, and not of the facts stated in the 
 inducement (y). ■ If, therefore, the plaintiff's possession of the pro- 
 perty alleged to have been injured by the wrongful act of the 
 defendant, or his title thereto, or his estate or interest therein, is 
 intended to be denied, it must be specially traversed. All other 
 pleas in denial must take issue on some particular matter of fact 
 alleged in the declaration, and all matters in justification, and 
 in confession and avoidance of the cause of action, must be 
 specially pleaded (z). If, therefore, the plaintiff claims as riparian 
 proprietor a right to the flow of the water of a stream through his 
 land (ante, p. 63), and complains that the defendant wrongfully 
 diverted or wrbngfuUy obstructed the flow of water, the fact that 
 the defendant as another riparian proprietor on the same stream 
 had a right to use or divert, a certain portion of the water for 
 reasonable purposes of his own, and that the diversion or obstruc- 
 tion complained of was an exercise by him of such right, must be 
 made the subject of a plea, and cannot be given in evidence under 
 the plea of not guilty (a). So, if the defendant claims a prescriptive 
 right to divert the water, such prescriptive right must be specially 
 pleaded. So, if the defendant intends to dispute the existence of 
 the right asserted in the declaration, he must expressly deny' the 
 right by a plea traversing the allegation or assertion of it, in the 
 very words in which it is put forward. Thus, where the declaration 
 states, that the plaintiff was possessed of a close, and by reason 
 thereof was entitled to have the use and benefit of a certain stream 
 of water, &c., and the defendant intends to dispute the right, he 
 must by his plea assert that the plaintiff was not, by reason of the 
 possession of the said close, .entitled to have the use and benefit of 
 the said water, &c. 
 
 Of the plea of leave and license. — If the obstruction to'the enjoy- 
 ment of the right has been authorised by the plaintiff, or if the act 
 complained of has been done by his permission, the defendant must 
 plead, that he did what is complained of by the plaintiff's leave (J). 
 This plea will be supported by proof, that the plaintiff gave the 
 defendant permission to alter the condition of his property in such 
 
 («) Bibbey v. Carter, ut sup. (z) Reg. Gen. («« sapra), E. 17. 
 
 (x) As to not guilty " by statute," see {a) Franhwm. v. Falmouth {Earl of), 2 
 
 Beg. Gen. Hil. Term, 1853. 1 EU. & BI. Ad. & B. 452. 
 
 App. Ixxxii. R. 2i: (b) 15 & 16 Vict. c. 76, Sohed. B., No 
 
 (y) Keg. Gen. Hil. T. 1853 ; 1 B. & B. 44. 
 App. Ixxxi. R. 16. 
 
74 ' INJURIES TO EEALTY. [CHAP. II. 
 
 a way as to interfere with the enjoyment of the right. Under this 
 plea it may he shown, that the plaintiif, having a right to the use of 
 a stream of w^ter which flowed through the land of the defendant, 
 gave the defendant permission to lower the baiiks of the stream, 
 and erect a weir, and divert a portion of the water which had pre- 
 viously flowed to the plaintiff's mUl, and that the banks were cut 
 down, and the weir erected, pursuant to the permission so given (c). 
 HaviQg consented to the act, the plaintiff, and those claiming title 
 through him, are precluded from treating the act as a wrong or 
 injury. 
 
 Fleas of a prescriptwe right to divert, or obstruct, or foul the 
 water of a stream, must, as we have seen, be placed on the record, 
 when the defendant relies on a prescriptive right in excess of his 
 natural right as riparian proprietor (ante, -p. 66). 
 
 Evidence at the trial — Proof on the part of the plaintiff. — If the 
 defendant pleads that he is not guilty of the act of which the 
 plaintiff complains, it must, of course, be proved either that it was 
 done by his own hand, or by his orders or authority, or by his 
 servants or agents in the course of their employment, or in follow- 
 ing out his orders and directions {d). If the plaintiff's possession 
 and incidental rights are traversed, the plaintiff must prove the 
 fact of his possession of the lands or tenements to which the right 
 claimed was incident, at the time of the commission by the defen- - 
 dant of the grievance of which the plaintiff complains. This may 
 be established by the plaintiff's own testimony upon the point, or 
 by proof of the exercise of acts of dominion, or by general user 
 and enjoyment, or actual occupation (e). 
 
 Proof of seizin of lands and tenements. — An allegation in plead- 
 ing that a party is seised of a messuage or land, does not necessarily 
 import that such land is in his own occupation. If, therefore, a 
 landlord pleads seizin in fee, and the seizin is traversed, the traverse 
 is not supported by proof that the land is in the occupation of a 
 tenant to whom the landlord has demised it (/). 
 
 Damages recoverable. — ^Wherever the exercise and enjoyment of 
 a right naturally incident to the possession of land has been 
 obstructed, substantial damages are recoverable, though no actual 
 perceptible damage has been sustained or proved, whenever the 
 repetition of the wrongful act, if uninterrupted and undisturbed, 
 would lay the foundation of a legal right. A wrongful defilement 
 of a stream is an injury to a right, in respect of which damages are 
 recoverable, although no actual specific damage can be proved. 
 Thus, where certain manufacturers erected works on the bank of a 
 stream, and fouled the water with soap-suds, but no actual damage 
 
 (c) Liggms v. Inge, 7 Bing. 682. (e) Page t. Eatchelt, 8 Q, B. 593. 
 
 (d) See jjosi, ch. 20, b. 2. (/) Stott v. Stott, 16 Bast, 350. 
 
SECT. 2.] WHAT DAMAGES EECOVEEABLE. 75 
 
 ■was proved to have been sustained by the plaintiff, it was held that 
 he was nevertheless entitled to recover damages, as a continuance 
 of the practice without iaterruption would eventually establish a. 
 right on the part of the defendants to the easement of discharging 
 their foul water into the stream (g). So, where the defendant, a 
 riparian owner on the banks of a stream which fed a spout, the 
 water of which the plaintiff, in common with the other inhabitants 
 of a certain district, was entitled by custom to use for domestic 
 purposes, abstracted the water to such a' degree as to render what 
 remained insufficient for the inhabitants, it was held that the 
 plaiatiff might maintain an action, although he had not himself 
 suffered any personal inconvenience (h). 
 
 But when the act of which the plaintiff complains has been 
 done by the defendant on his own' land, and the constant repetition 
 of it, however long continued, would establish no prescriptive right 
 against the plaintiff, there is no cause of action until some sub- 
 stantial, perceptible damage has been sustained by the plaintiff. 
 Proof of such damage in such a case is essential to the establish- 
 ment of a cause of action. Thus, where a landowner digs in his 
 own land, or the owner of the subsoil and minerals excavates his 
 own freehold, there is no wrongful act, and no cause of action until 
 it is proved that the surface of the adjoiniag land has sunk down, 
 or that the walls of a neighbouring house ' have cracked, or the 
 foundations thereof have been displaced, or have given way, or that 
 some actual perceptible damage has been done to the adjoining land 
 or tenement (i). 
 
 By tenant and reversioner. — ^Whenever the enjoyment of a privi- 
 lege or right annexed to the ownership or occupation of land has 
 been obstructed by the wrongful act of the defendant, and the land 
 to which the right or privilege is annexed is in the occupation of a 
 lessee, damages are recoverable in respect of the injury to the re- 
 sidential or possessory interest of the latter, and,by the landlord or 
 reversioner in respect of the permanent injury to the inheritance (Jc). 
 Thus, where freehold premises are let on lease, and the owners and. 
 reversioners stand in the relative positions of tenant for life, re- 
 mainderman in tail, and reversioner in fee, and a permanent injury 
 has been done to the beneficial occupation and enjoyment of the 
 property, the damages recoverable by the immediate reversioner 
 the tenant for life, are confined to the injury done to his life- 
 interest (I). But a mere temporary impediment to a drain which 
 
 {g) Wood T. Waud, 3 Eick 772. Sonoim, ante, p. 62. 
 
 MochdcUe Carnal Co. v. £ing, 14 Q. B. 135, (k) As to the apportionment of dam- 
 
 138. See post, oh. 3, s. 1 ; and ante, ages between tenants and reversioners, 
 
 p. 7. see post, ch. 22, s. 1. 
 
 (h) ffarrop v. ffirst, L. E., 4 Exch. 43. (/) HvOyn v. Baddish, Holt. N. P. 0. 
 
 (j) SonomiY.Saclehouse; Backhouses. 643. 
 
76 DISTUEBAKCE OF SERVITUDE. [CHA?. II. 
 
 is remediable, and does not cause any permanent injury to the 
 property, does not give the reversioner any right of action for 
 damages. 
 
 If the constant repetition of the unlawful act would form the 
 foundation for the establishment of a prescriptive right which, 
 when once established, would operate to the lasting injury of the 
 inheritance, and permanently diminish the value of the property, 
 the reversioner is, as we have seen, entitled to an action for the 
 recovery of damages. 
 
 Injunction to prevent the disturbance of rights naturally incident 
 to the possession and ownership of land. — The Court of Chancery 
 has, from the earliest period, interfered by injunction to restrain 
 the owner of land from so dealing with his property as t6 prejudice 
 or destroy the rights of his neighbour, thereby enforcing, the 
 maxim, "Sic utere tuo ut alienum, non Imdas." The foundation of 
 this jurisdiction is that head of mischief j alluded to by Lord 
 Hardwicke — ^that sort of material injury to the comfort and enjoy- 
 ment of property which requires the application of a power to 
 prevent, as weU as remedy — an evil for which, damages, more or 
 •less, would be -given in an action at law (m). But before the plain- 
 tiff can ask for any injunction restraining the defendant from using 
 his own land or property in a way in which he would be clearly 
 entitled to use it, but for some dominant right on the part of the 
 plaintiff, the latter must establish such last-named right, and show 
 to the satisfaction of the court that it has been infringed, and that 
 he has sustained such injury therefrom as would entitle him to. a 
 verdict for substantial damages in an action at law (w). The court 
 will not interfere to protect a dry, ,strict, legal title, merely because 
 the legal right has been infringed. . It must be shown that some 
 actual damage has been done or threatened, in order to lay a ground 
 for equitable relief (o). 
 
 The jurisdiction of the Court of Chancery to prevent the infringe- 
 ment of a legal right by the issue of an injunction is not an, 
 original jurisdiction ; it existed, not for the purpose of trying the 
 fact of the existence of the right, but for the purpose of giving 
 effect to the legal title after its existence had been established in a 
 court of law., A person, therefore, who came before the court in the 
 first instance, for an injunction, instead of going before-the ordinary 
 legal tribunal, was bound to show some pressing necessity for 
 summary interference, for the court would not try, upon conflicting 
 afiidavits the fact of the existence or non-existence of the legal 
 
 (m) Att.-Gen. t. Nichol, 16 Ves. 342. (o) Wandsworth Board of. Works v. 
 
 (tc) Elmhmt v. Spencer, 2 Mac. & G. Lond.and S. W.HaU. Co., 81 Law J., Ch. 
 
 51. J)ent V. Auction Ma/rt Co., L. R., 2 855. See lAmgwood.r. Stownwrhet Fa/^er 
 
 Eq. Oa; 238; 'post, ch. 3, s. 2; ch. 4, Co., L. R., 1 Eq. Ca. 77. CrossXe^ v. 
 
 s. 3 ; and oh. 23. LigMowkr, ante, p. 66. 
 
SECT. 2.] ' INJUNCTION TO KESTBAIN. 77 
 
 title (p) ; nor would it interfere where tlie legal right was doubtful, 
 and the nature of the alleged injury was such as not to require im- 
 mediate prevention (q). But the practice of the court in these 
 respects has been materially modiiied by the chancery amendment 
 acts, which impose upon the Court of Chancery the obligation of 
 adjudicatiag upon the legal rights of the parties before them, as 
 well as upon their title to equitable relief (r). 
 
 Injunction to restrain the diversion of water. — Whenever a 
 spring rises from the ground in one man's land, and flows therefrom 
 into another's land, and the supply of water from the spring is 
 constant, the court will by injunction prevent a landowner through 
 whose land the water flows, from cutting off the supply of water to 
 the land lower down, although the spring may flow through boggy 
 land, and not follow any defined channel or watercourse ; but if the 
 supply is casual and iutermittent, and dependent upon the rain- 
 fall, and is mere common surface-water, the court wiU not inter- 
 fere (s). When a millowner or riparian proprietor is entitled to 
 the benefit of the natural flow of water through a mill-stream, 
 or through a natural watercourse, the Court of Chancery will by 
 injunction restrain the owner of the subsoil or minerals from 
 excavating or mining beneath the stream so as to endanger the 
 existence of the watercourse or the loss of the water ; but the 
 person seeking relief must show that some injury has actually hap- 
 pened, or that it wiU inevitably result from the prosecution of the 
 mining operations (t). 
 
 Injunction to restrain a disturbance of the right to support. — 
 Where there are separate owners of surface and subsoil, and the 
 owner of the subsoil begins to excavate so as to deprive the owner 
 of the surface of his natural right to the support of the subsoil (ante, 
 p. 61), the court wOl interfere by injunction to prevent any further 
 excavation of the subsoil interfering with the use and enjoyment 
 of the surface (u). 
 
 Injunction to prevent obstruction to the repair of a watercourse in 
 alieno solo. — Where a mill-stream running through the defendant's 
 land to the pkintiff's mill, broke through its banks and made a new 
 channel for itself through the defendant's land, and the defendant 
 would not allow the plaintiff to come on his land to repair the 
 river-bank without the payment of a large sum of money, and the 
 T njn came to a standstill for want of water, it was held that the 
 
 Op) Semple v. Lorid. & Bi/rm. Rail. Co., (r) Post, cli. 23, s. 1. Beardmore r. 
 
 1 Bail. Cas. 134. White r. Cohen, 1 Tredwell, 31 Law J. Ch. 893. 
 
 Drew, 318. Broadbmt v. Imp. Gas Co., (s) Ermor t. BarweU, 2 Giff. 424. 
 
 26 Law J., Ch. 276 ; 29 ib. 377. SMnson v. Ld. Byron, 1 Bro. Oh. C. 
 
 (ff) WynstanUy v. Lee, 2 Swanst. 335. 588. . 
 
 Ripon (JEarl of) t. HobaH, 8 Myl. & K. (t) Ehodl T. Growther, 31 Law J., Ch. 
 
 179. Att.-Oen. v. United King. Elec. Tel. 763. 
 
 Co., 31 Law J., Ch. 329. («) Bunt v. Peake, 1 Johns. 708, 
 
78 EEMEDY FOE DISTUEBANOE OF SEEVITUDE. [CHAP. II. 
 
 plaintiff, being entitled to tlie use of the watercourse, Was entitled 
 to come on the defendant's land to repair the watercourse and pre- 
 serve it (post, ch. 3, s. 1), and the defendant was restrained hy in- 
 junction from preventing the plaintiff, his servants and workmen, 
 from coming on his land and repairing the river-bank, and doing 
 what was necessary to be done to restore the water to its ancient 
 channel (x). 
 
 (x) M'Swimy v. ffaynes, 1 Ir. Eq. Kep. 322. See Bdberts v. Bote, post, ch. 4, s. 2. 
 
79 
 
 CHAPTER III. 
 
 OP CONVENTIONAL AND PRESCKIFTIVE SBEVITUDES- 
 MENTS AND PEOFITS A PRENDRE. 
 
 -base- 
 
 Section I. — Of easements and profits d 
 ■jrrendre. — Grants of rigMs of servitude 
 — Licences — Reservation of privileges 
 amounting to an express grant — Im- 
 plied grants of easements — Privileges 
 and services accessorial to a principal 
 thing granted — Ways of necessity — 
 Necessary incidents to a right of way 
 or watercourse — Bights of towing — 
 Easement of support from adjoining 
 land — Eight to search for minerals 
 under lands weighted with railways 
 and canals — Servitude of support when 
 houses are built together, so as to 
 require mutual support — • Separate 
 floors vested in several proprietors — 
 Grants of the free passage of light 
 and air to newly-opened windows — 
 Easements accessorial to the grant of 
 a dwelling-house — Transfer of ease- 
 ments and profits— Easements and 
 profits in gross — Licences to search 
 for, and carry away, minerals — Ex- 
 clusive licences — Rights claimable 
 by custom — Manorial customs — Com- 
 mon appendant, appurtenant, and in 
 gross — Cow-grasses and cattle-gates 
 — Eights of tinbounders — Inconsist- 
 ent rights of common — Servitude of 
 maintaining and repairing sea-walls, 
 ditches, and sluices— Customary rights 
 of fishing— Sea-bathing— Title by pre- 
 
 scription — Prescriptive rights founded 
 on the presumption of a grant — The 
 Prescription Act — Profits and ease- 
 ments claimable under it — What sort 
 of enjoyment is essential to the gain- 
 ing of a prescriptive right — Enjoy- 
 ment as of right — Enjoyment over 
 land held on lease — Prescriptive 
 rights of way, watercourse, and use 
 of water and streams — Prescriptive 
 right to have fences kept up in alieno 
 solo — Prescriptive right to light — 
 ESiect of unity of ownerships-Inter- 
 ruption of enjoyment — Continuity of 
 enjoyment — Computation of the pe- 
 riods of enjoyment — Rights of rever- 
 sioners — Waiver, extinguishment, and 
 revival of easements — Eepair of ways 
 and watercourses. 
 Sbotion' II. — Jieme(Mes for the infringe- 
 ment of incorporeal rights. — ^Abatement 
 of obstructions to the enjoyment of 
 easements — Right to distrain beasts 
 trespassing on commons — Actions for 
 infringements of incorporeal rights— 
 Parties, pleadings, defences, and evi- 
 dence — Damages recoverable — Reme- 
 dy by injunction — Easements granted 
 by parol — Injunction to prevent ob- 
 structions to windows and infringe- 
 ments of the right to support from 
 adjoining land — Bill of Peace. 
 
 SECTION I. 
 
 OT CONVENTIONAL AND PRESCRIPTIVE SERVITUDES — EASEMENTS AND 
 PEOFITS A PKENDKE. 
 
 Easements. — The servitudes naturally incident to the ownership 
 and occupation of land, and the legal restrictions upon the pro- 
 prietary rights of landowners {ante, ch. 2, s. 1), may, within 
 
80 CONVENTIONAL SERVITUDES. [CHAP. III. 
 
 certain limits, be enlarged and extended by express and implied 
 contract, by grant, and in certain cases by custom and prescription (a). 
 Thus, one proprietor may acquire by grant, or from long-continued 
 and uninterrupted enjoyment, a right to take water from his 
 neighbour's well, or to wash and water cattle at a neighbour's 
 farm (6) ; to hang and dry clothes on lines on a neighbour's land (c) ; 
 to hang and dry nets thereon (d) ; to turn the plough thereon in 
 ploughing (e) ; to discharge water thereon from the roofs and eaves 
 of houses (/) ; or to have the benefit of a neighbour's fence or hedge 
 maintained and repaired at the expense of such neighbour (g). A 
 privilege or benefit of this description, unaccompanied by any 
 profit or interest in the soil itself, is called in our law an easement, 
 and is claimable by custom, grant, or prescription. 
 
 Profits d Prendre. — ^A profit a prendre is a right vested in one 
 man of entering upon the land of another, and taking therefrom a 
 profit of the soil. It is an incorporeal right, clothing the possessor 
 of it with an interest in land, and is claimable only by grant or by 
 prescription. Such is the right of depasturing cattle on- another's 
 land ; the right to cut therefrom and carry away turf or wood for 
 burning within the dwelling-house ; the right to dig for and carry 
 away stone, slate, coal, and minerals ; the right to shoot and sport 
 over another's land, and carry away and consume the game killed ; 
 or the right to fish in the waters of an estate or of a manor, and 
 carry away and consume the fish taken. 
 
 Bracton, in his books of the laws and customs of England, enu- 
 merates the different servitudes with which the estate of one pro- 
 prietor may be burthened for the benefit and convenience of another, 
 such as rights of depasturing cattle, rights of common, of cutting 
 and carrying away turf, or digging for and gathering minerals, 
 stones, or sand, rights - of way, rights of drawing water from a 
 neighbouring well, rights of watercourse, or of a passage for water 
 through another's land, rights of hunting thereon, rights of estover, 
 or of cutting wood for burning in the dwelling-house, or for budd- 
 ing, or repairs ; all of which servitudes, he tells us, were originally 
 imposed upon land by the wOl, or ordering, or consent of the lord, 
 or have grown up, and have become appurtenant to property, with- 
 out having been expressly constituted, through long-continued, 
 peaceable, and uninterrupted enjoyment. 
 
 The long-continued exercise of the privilege on the one side, and 
 
 ft 
 
 (a) Fitch V. HawUnga, 2 H. BI. 393. (c) 7 Vin. Abr. p. 174. Custom, F. 
 See Gale on Easements. pi. 4, F. pi. 1. 
 
 (b) Sace v. Ward, 4 Ell. & Bl. 702 ; (/) Thomas v. Thomas, 2 C. M. & E. 
 24 Law J., Q. B. 153. Mamning t. Was- 34. 
 
 dale, 5 Ad. & B. 768. (g) Boyle v. Tamlm, 6 B. & C. 338 ; 
 
 (c) DreweU v. I'owler, 3 B. & Ad. 735. 9 D. & K. 437. £arher v. WhiteUy, 34 
 
 id) 7 Vin. Abr. p. 183. Custom, F. L. J., Q. B. 212. 
 pi. 2. 
 
SECT. 1.] PEOFITS A PRENDEE — LICENCES. 81 
 
 the sufferance and endurance of it on the other, must not, he ob- 
 serves, be due to force or intimidation. If it has been exercised and 
 enjoyed by stealth, or if the privilege has been sought for, and has 
 been conceded, as a kindness and matter of favour, to be enjoyed 
 during the pleasure of the grantor, it will fail to create a servitude (h). 
 
 •Unlimited claims in the nature of easements, profits, and, servitudes. 
 — There can be no prescriptive right in the nature of an easement 
 or servitude so large as to preclude the ordinary uses of property by 
 the owner of the lands affected by the privilege, and to extinguish 
 or destroy all the profits or produce ordinarily derivable from the 
 soil. Therefore an unlimited claim of a right to go at all times and 
 in all directions over every portion of a close for purposes of re- 
 creation and amusement is bad. Such an easement is claimable 
 only by the inhabitants of particular villages over open and un- 
 inclosed village-greens and village playgrounds, which have been 
 immemorially dedicated to the recreation and a,musement of the 
 inhabitants of the village (i). Claims of a right of profit a prendre 
 in alieno solo must in like manner, in order to be valid, be made 
 with some limitation and restriction. Where, therefore, a defen- 
 dant claimed a prescriptive right as the occupier of a brick-kiln 
 to dig and carry away from an adjoining close of the plaintiff as 
 much clay as was required for the making of bricks in the brick- 
 kiln, it was held that an unlimited claim and demand of this 
 nature upon the soil of the plaintiff could not be sustained, for it 
 would, as claimed, enable the defendant " to take all the clay, or in 
 other words, to take from the plaintiff the whole close " (Ic). So, a 
 privilege claimed of taking sand without limit is bad (Q ; and so 
 is a claim by the customary tenants of a manor having gardens, 
 parcels of their customary tenements, to dig and carry away turf 
 from the waste within the manor, for the improvement of their 
 garden-walks, or for making and repairing banks and mounds of 
 grass on their customary tenements (m). But a custom to dig sand 
 and gravel in the waste for the repair of a dwelling-house, when 
 out of repair, may be supported (n). 
 
 Grants of rigMs of servitvde — Licences. — A parol licence or per- 
 mission to go upon another man's land will, so long as it has not 
 been countermanded, justify an entry upon the land ; but it con- 
 fers no indefeasible right at law, and may be recalled at the pleasure 
 of the grantor, unless the licence or permission be under seal A 
 mere parol agreement or licence for the enjoyment of a right of 
 way over the land of the Kcensor or promisor may at any time be 
 
 (h) Braot. lib. i, fol. 220—222. (D BleuiiU v. Tregoning, 3 Ad. & E. 
 
 (i) Dyce V. Bay, 1 Macq. 305. 554. 
 
 (k) Clayton v. Corby, 5 (J. B. 419, 422. (m) Wilson v. Willes, 7 East, 121. 
 
 WUkes Y. Broadbent, I Wils, 63, (™) Peppm y. Shahspea/r, 6 T. R. 748, 
 
82 CONVENTIONAL SERVITUDES. [OHAP. Ill, 
 
 put an end to by the latter. The locking of a gate across the way- 
 is a manifest revocation of the licence, and a plain statement to 
 everybody that the way is no longer to be used. And if the licence 
 has been granted by agreement for good consideration, there will be a 
 breach of the agreement and a claim for damages ; but no right to the 
 enjoyment of the way, unless relief can be obtained in equity (o). 
 
 " A right of passage for waste water through an artificial drain 
 or watercourse in another man's land, where the party claiming 
 the right has no interest in the land through which the water 
 flows, or ought to flow, is an incorporeal right lying in grant, and 
 is claimable only by deed or by prescription" (p). Therefore a 
 mere parol permission to cut a drain, or make a watercourse, and 
 use it for the passage of water, may be revoked at law, and the 
 drain or watercourse stopped up by the proprietor who has given 
 the permission, and through whose land the water runs (§■). " In 
 the case of a parol licence," observes Alderson, B., " to come on my 
 land, and there to make a watercourse for water to flow through my 
 land, there is no valid grant of the watercourse. The licence re- 
 mains a mere licence, capable of being revoked ; but if the licence 
 were granted by deed, then the question would be on the construc- 
 tion of the deed^ whether it amounted to a grant of the watercourse ; 
 and if it did, then the licence would be irrevocable " (r). But in 
 equity, if a landowner has granted to his neighbour by p&rol an 
 easement to be enjoyed over his land, and the neighbour incurs 
 expense, with the sanction of the landowner, in constructing per- 
 manent works for the enjoyment of the privilege, the landowner 
 will not be allowed to withdraw his consent and prevent the en- 
 joyment of the privilege, without making compensation to the 
 licensee (s). Thus, where persons desirous of supplying a town 
 with water, applied to the defendant for permission to make a 
 watercourse through his land, and permission was granted by 
 word, of mouth, and the watercourse was made at considerable 
 expense, and was enjoyed for nine years, when disputes arose, and 
 the defendant cut off the water, the Court of Chancery restrained 
 the defendant by injunction from obstructing the flow of water, on 
 compensation being made to him for the use of his land (t). 
 
 A licence to put goods on the licensor's land cannot be revoked 
 without allowing the licensee a reasonable time for the removal 
 of his goods (u). 
 
 (o) Hyde t. OraJiam, 32 Law J., Exeh. (g) Beaufort (Duke of) v. Patrick, 17 
 
 2'. Beav. 60. Moreland t. Richardson, 22 
 
 (p) Heidms\.S!iippam,,5'B.&,G.229. Beav. 596. And see post, ch. 23, Ik- 
 
 (g) Cocker v. Coviper, 1 Or. M. & K. junction. 
 421. Fentiman v. Smith, 4 East, 108. (t) Devonshire (Duke of) v. £JiiUn. U 
 
 (r) Wood V. LeadUtter, 13 M. & W. Bear. 530. 
 845. Lee v. Stevenson, E. B. & E. 512 ; (u) Oomish v. Sttiiis, L. R., 5 0. P. 
 
 27 Law J., Q. B. 263. 334. 
 
SECT. l.J EESEKVATION OF EIGHTS OF SPORTING, ETC. 83 
 
 " A dispensation or licence," observes Vaughan, C. J., " properly 
 passeth no interest, nor alters or tran&fers property in any thing, 
 but only makes an action lawM, which without it had been un- 
 lawful. Thus a licence to hunt in a man's park, and carry away 
 the deer killed to his own use ; to cut down a tree in a man's 
 ground, and to carry it away the next day after to his own use, are 
 licences as to the act of hunting and cutting. down the tree ; but as 
 to the carrying away of the deer killed and tree cut down, they are 
 grants " (v). 
 
 A mere licence of pleasure, such as a licence to hunt over a 
 man's land, whether made by deed or simple contract, is revocable ; 
 but a licence to hunt and carry away the game killed amounts, if 
 under seal, to a grant, and cannot be revoked (w). Care, however, 
 must be taken to distinguish between a licence amounting to a 
 grant of an easement to be exercised and enjoyed by the grantee of 
 such licence upon the grantor's land, and a licence to the grantee to 
 iise his own land in a way which, but for an easement claimed 
 thereon by the grantor, he would have an undoubted right to 
 use it (ic). 
 
 Eights which are part of the ownership of the soil, unless ex- 
 pressly reserved under Inclosure Acts, pass with the soil to the 
 persons to whom allotments are made (y). Where, therefore, by 
 an Act for the inclosure and allotment of waste lands in a manor, 
 it was provided that nothing in the Act should defeat the right of 
 the lord of the manor to the seigniories and royalties incident to the 
 manor, but that he should hold and enjoy all courts, fairs, markets 
 &c., with free warren and liberty of hunting, hawking, fishing, and 
 fowling " to the said manor, or to the lord thereof, incident, belong- 
 ing, or appertaining," in as ample a manner as before the Act, it 
 was held that, as his right to sport over the waste before the Act 
 was not a licence or liberty " incident to him as lord," but a raethod 
 of direct enjoyment of his own soil and freehold, the Act did 
 mot reserve any such right of sporting to him, and that his right 
 thereto was gone (2). A fortiori, therefore, where the Act provided 
 that a certain portion of the waste should be allotted to the lord of 
 the manor in satisfaction for his right and interest as such lord (a). 
 The Enclosure Commissioners, however, have power under the 11 & 
 12 Vict. c. 99, s. 1, to sever the right to take game from the owner- 
 ship of the soil, if the lord of the manor makes tliat a condition of 
 his assent to the enclosure (5). Where, therefore, in the reservation 
 
 [v) ThoTnm t. Sorreil, "Vaughan, 351. (y) Towrdey v. Gibson, 2 T. E. 701. 
 
 (w) Bro. Abr. Licences. As to a JOoe v. Davidson, 2 M. & S. 175. 
 
 licence to fish, see MiUs v. Mm/or of Col- (z) Greathead t. Morley, 3 M. & G-. 139. 
 
 cheater, L. E., 2 0. P. 476 ; 3 ib. 576. Bruce v. Bellvaell, 5 H. & N. 609, aec. 
 
 {x) Winter t. Brochwdl, Liggins v. (a) Robinson r. Wray, L. E., 1 C. P. 
 
 Fnge ; post, Pakol Abandonment op 490. 
 
 Ikcokpobbal Rights. (*) Musgraww.Forster,'L. B. 6 Q. B. 590. 
 
 G 3 
 
84 CONVENTIONAL SERVITUDES. [CHAP. Ill, 
 
 of the manorial rights of sporting in the Act other rights not 
 manorial, such as the right of taking coals, minerals, &c., were 
 joined in the reservation, it was held that the right of sporting was 
 not lost, hut that the terms of the clause, though nominally one of 
 reservation only, were sufficient expressly to create or confer such 
 a right (c). 
 
 Reservation of privileges amounting to an express grant. — ^Where 
 a conveyance of lands contains words excepting and reserving to 
 the grantors, their heirs and assigns, liberty to come upon the land 
 and hunt, hawk, fish, and fowl, the clause will operate as a grant 
 of the privilege by the person to whom the land is conveyed (a!). 
 Where the owner of a manor and of the demesne lands thereof, 
 granted away the manor and all his estate and interest therein, 
 " except and always reserved " to the grantor, his heirs and assigns, 
 all the coal in any of the said lands, it was held that this reservation 
 gave to the grantor an absolute and perpetual right in fee simple 
 to the coals (e). If a lessor reserve out of a demise "the free run- 
 ning of water and soil coming from any other buildings and lands 
 contiguous to the premises hereby demised," the reservation ex- 
 tends only to water in its natural condition, but it includes all 
 water that comes lawfully from the adjoining premises, whether it 
 arose there or not (/). 
 
 Implied reservation or grants of easements. — It does not foUow 
 that because the necessity of an easement is apparent upon the face 
 of property which has been sold or granted away, there is an im- 
 plied reservation of such easement in favour of the vendor or 
 grantor. " If I purchase from the owner of two adjoining freehold 
 tenements the fee simple of one of those tenements, and have it 
 conveyed to me, I am not bound to take notice of the manner in 
 which the adjoining tenement is used or enjoyed by the vendor, 
 and to permit all such constant or occasional invasions of the pro- 
 perty conveyed, as may be requisite for the enjoyment of the 
 remaining tenement in the manner it was used and enjoyed by the 
 vendor at the time of such sale and conveyance " (g). 
 
 But on the grant by the owner of an entire heritage of part of 
 that heritage as it is then used and enjoyed, there wiU pass to the 
 grantee all those continuous and apparent easements, which have 
 been and are, at the time of the grant, used by the owners of the 
 entirety, for the benefit of the parcel granted. If, therefore, a 
 
 (c) Ewart t. Graham, 1 H. of L. Ca. (c) Cardigan {Earl of) v. Armitage, 2 
 
 331. Musgrave-v.Forster,swpra. Lecon- B. & C. 197. As to the rights of the 
 
 field (Lord) v. t)mm, L. R., 2 Exch. 202 ; grantor's licensees, see Metcalfe t. West- 
 
 3 ib. 32, ace. away, 34 Law J., C. P. 113. 
 
 {d) Addison on Contracts, 6th ed. pp. (/) Ckadwielc y. Marsden, L.B.,2Exch. 
 
 117, 118. But the grant is of a priTi- 286. 
 
 lege or easement in gross, and is not as- (g) The Lord Chancellor, Sujield T, 
 
 signage over, Pagt, p, 95, Brovm, 3? Law J., Cb, §58, 
 
SECT. 1,J RESBEVATION OF EASEMENTS. 85 
 
 landed proprietor has annexed peculiar qualities and incidents to 
 different parts of his estates, so that one portion of his land 
 becomes visibly dependent upon another for the supply or escape 
 of water, or for means of access, or for beneficial use and occupa- 
 tion, the qualities or incidents thus manifestly imprinted upon the 
 property pass with the lands to which they are annexed to the 
 grantees, as accessorial to the beneficial use and enjoyment of such 
 lands (h). If one erect a house and build a conduit thereto in 
 another part of his land, and convey water by pipes to the house, 
 and afterwards sell the house with the appurtenances without the 
 land, or sell the land without the house to another, the conduit 
 and pipes pass with the house, because they are necessary and ap- 
 pendant thereto ; and the purchaser of the house shall have liberty 
 by law to dig in the land for amending the pipes or making them 
 new, as the case may require. So it is if a lessee for years of a 
 house and land erect a conduit upon the land, and, after the term 
 determines, the lessor occupies them together for a time, and after- 
 wards sells the house with the appurtenances to one, and the land 
 to another, the -vendee shall have the conduit and the pipes, and 
 liberty to amend them. " But," by Popham, C. J., " if the lessee 
 erect such a conduit, and afterwards the lessor during the lease sell 
 the house to one and the land wherein the conduit is to another, 
 and after that the lease determines, he who hath the land wherein 
 the conduit is may disturb the other in the using thereof, and 
 may break it, because it was not erected by one who had a per- 
 manent estate or inheritance, nor made one by the occupation and 
 usage of them together by him who had the inheritance. So it is 
 if a disseisor of a house and land erect such a conduit, and the 
 disseisee re-enter, not taking conusance of any such erection, nor 
 using it, but presently after his re-entry sells it, the house to one 
 and the land to another, he who hath the land is not compellable to 
 suffer the other to enjoy the conduit '' (t). 
 
 When two properties are possessed by the same owner, and there 
 has been a severance made of one part from the other, anything 
 which was used and was necessary for the enjoyment of that part 
 of the property which is granted will be considered to follow from 
 the grant, if there are the usual words of conveyance (k). Where, 
 therefore, the owner of two or more adjoining houses sells or con- 
 veys one of the houses, the purchaser of the house is entitled to the 
 benefit of all the drains from his house, and is subject to all the 
 
 (h) SuMeld y. Brown, ut sup. v. BrocUehwrst, 29 Law J., Q. B. 145 ; 
 
 li) NicholU T. GhmiberUim, Cro. Jae. 1 E. & E. 10.58. Watts v. Kelson, L. K., 
 
 121. Brown v. NichoUs, Moore, 682. 6 Ch. App, 166. 
 
 Archery. Bennett, 1 Lev. 131. Hmch- {k) Ewart y. Cochrmie, 4 Maoq. 122; 
 
 liffe y Earl Kinnovl, 5 Bing. N. 0. 23. 7 Jiir. N. S. 925. ffaU y. Lund, 32 Law 
 
 CanAam T. i%i, 2 Cr. & J. 126. Wardle J.,Exch. 113. Suffieldy. Brown, ut sup. 
 
86 CONVENTIONAL SERVITUDES. [CHAP. III. 
 
 drains necessarily to be used for the enjoyment of the adjoining 
 house (I), and that without any express reservation or grant ; if 
 that were not so, it would enable the vendee of any one house to 
 stop up the system of drainage made for the benefit and necessary 
 occupation of the whole (m). If a man is possessed of a hotise, 
 and there is a way necessary for the useful and convenient occu- 
 pation of the house (n) manifestly used by the occupiers of the 
 house, a grant or lease of the house with its appurtenances wUl 
 carry with it the right to use the way (o). But if the way is not 
 necessary for the beneficial use and occupation of a tenement, 
 and there are other convenient means of access, a right of way 
 will hot pass under the word " appurtenances " (j)). And if ad- 
 joining houses, held under the same landlord, are sold subject to 
 all sxibsisting rights of way and water, a mere permissive user of a 
 way or of water from a well will not thereby be converted into a 
 legal right (q). 
 
 By the French law, if the proprietor of two heritages between 
 which there exists an apparent sign of servitude disposes of one of 
 the heritages, without making any stipulation in the conveyance 
 respecting the servitude, it continues to exist, actively or passively, 
 ' in favour of the heritage alienated or upon it (r). And by apparent 
 signs of an easement or servitude must be understood not only 
 those which must necessarily be seen, but those which may be seen 
 or known on a careful inspection by a person ordinarily conversant 
 with the subject (s). 
 
 Privileges and servitudes which pass as accessorial to the use and 
 enjoyment of the principal thing granted — Omne accessorium sequitw 
 suum principaie. — In accordance with the maxim, " Quando aliquis 
 aliquid concedit, concedere videter et id, sine quo res concessa uti 
 non potest," it has been held that by the grant of the use of a 
 pump the gi'antee has a right to enter upon the grantor's land to 
 repair the pump, although neither the soil itself nor the pump On 
 which it stands be granted to him ; and that if a man gives me a 
 licence under seal to lay pipes of lead in his land to convey water 
 to my cistern, I may afterwards enter and dig the land to mend 
 the pipes, though the soil belongs to another, and not to me (t). 
 If one grants his trees, the grantee may enter upon his land for 
 
 {V) See, as to this position, Gale on 484. Dodfi t. SurchaU, 1 H. & C. 113 ; 
 
 Easements, 4th ed. p. 113. 31 Law J., Exch. 364. Wardle v. BrocUe- 
 
 (m) Pyer v. Cwrter, 1 H. & N. 91 — 6 ; hurst, itt sup. 
 
 26 Law J., Exch. 258. Hatt v. Lvmd, (q) Daniel v. Anderson, 31 Law J., Ch. 
 
 and Chadutich \. Marsden, supra. See 610. Russell v. Hwrford, L. K., 2 Eq. 
 
 Billiard on Torts, p. Ill n. Ca. 607. 
 
 (n) Mansfield, C. J., Morris v. Edging- (r) Cod. Civ. art. 694. 
 
 ton, 3 Taunt. 28. Pearson v. Spencer, 1 (s) Pyer v. 0wrtet; 1 H. & N. 922. As 
 
 B.&S. 571. 1 tothisca8e,Bee33Law J., Ch. 2S9 ; L. 
 
 (o) rcllooi, C.B., Olave v. Bwrding, 27 K., 6 Eq. Ga. 253. 
 
 Law J., Exch. 292. (t) Pomfret v. Mcroft, 1 Saund. 322e, 
 
 ip) Pheysey v. Vica/ry, 16 M. & W. 323. Liford's case, 11 Co. 52a. 
 
SECT. l.J WAYS OF NECESSITY. 87 
 
 the cutting down and carrying them away. And if a growing crop 
 of grass is sold to be cut down and made into hay when it arrives at 
 "maturity, the purchaser has a right by implication of law to make 
 the grass into hay on the land («). If a landowner has granted to 
 another a right to dig coal-pits in his land, and to take and carry 
 away coal, all things necessary for the exercise and enjoyment of 
 the right pass therewith to the grantee. He has a right, therefore, to 
 erect sheds and steam-engines, and fix such machinery as may 
 be necessary to drain the coal-pits, draw up the coals and iron, 
 and work the coal-field, although the grant of the incorporeal right 
 may be silent as to any such erections (x). 
 
 By the French law, "he to whom a servitude is dile has a 
 right to form all the works necessary to make use of and pre- 
 serve the servitude. These works are at his own expense, and 
 not at that of the proprietor of the estate subjected to the 
 servitude, unless the deed establishing the servitude declare the 
 contrary" (y). 
 
 Ways of necessity. — Whenever one man grants land to another 
 to which there is no access but over the land of the grantor, or the 
 land of a stranger, which cannot lawfully be traversed, the grantee 
 has a right of way over the grantor's land, as a way by necessity, 
 and the grantor shall assign the way where he can best spare it. 
 And if the owner of two closes, having no way to one of them 
 but over the other, parts with the latter without reserving the 
 way, it wUl be reserved to him by law as a way of necessity (z). 
 ■Where one sold land, and afterwards the vendee, by reason thereof, 
 cMmed a way to it over part of the plaintiff's land, there being 
 no convenient way adjoining, it was held that he might well justify 
 the using thereof, for otherwise he could not have any profit of his 
 land : and if a man hath four closes lying together, and sells three 
 of them, reserving the middle close, and hath not any way thereto, 
 but through one of those which he sold, although he reserved not 
 any way, yet he shall have it as reserved unto him by the law (a). 
 A way of necessity, when the nature of it is considered, will be 
 found to be nothing else but a way by grant. It derives it origin 
 from a grant ; for there seems to be no difference where a thing is 
 granted by express words, and where by operation of law it passes 
 as incident to the grant. In both cases the grant is the foundation 
 
 («) 1 Roll. Abr. ! Dishes X., pi. 23. OaUand, 9 Erch. 12 ; 22 Law J., Exeli. 
 
 (x) Dand T. Kingscote, 6 M. & W. 349. East. Co. Rail. Co. v Dorlmg, 5 
 
 196 0. B., N. S. 821 ; 22 Law J., C. P. 202. 
 
 {y) Cod. Civ. lir. 2, tit. 4, art. 697, Gayford v. Mqffatt, L. R,, 4 Ch. App. 
 
 698 'i.'iZ. 
 
 (z) 2 Roll. Abr. ; GEAnui, Z., pi. 17, (a) aarhe v. Cegge, Oro. Jae. 170. 
 
 18 Staple T. Heydon, 6 Mod. 4. How- See Dawke r. Stear, L. R., 7 Eq. Oa. 427 ; 
 
 ton T. Frearson, 8 T. R. 50. Morris v. 38 L. J., Ch. 545, mom. Da-vies v. Sewr, 
 
 Edgington, 3 Taunt. 30. Pinnmgton v. 8. C. 
 
88 CONVENTIONAL SBEVITUDES. [CHAP. III. 
 
 of the title, aud it is as necessary to set forth the title to a way of 
 necessity as it is to a way by grant (b). 
 
 Necessary incidents to a grant of a right of way or watercowrse. — • 
 Every gra,ntee of a right of way, or of the right of passage for 
 waste water through an artificial drain or watercourse, extending 
 from the land of the grantee through the land of the grantor, is 
 bound to maiatain and repair the way and the watercourse, if he 
 wishes to use them, unless the grantor himself has expressly under- 
 taken the performance of that duty. The grantee, therefore, has a 
 right to go upon the land over which the easement is enjoyed "to do 
 the necessary repairs (c). 
 
 Under a general grant of a right of way, with liberty to make 
 and lay causeways, and use the same with waggons and carriages, 
 and carry coals, it was held that the grantee had a right to construct 
 and use framed waggon-ways, if they were reasonably necessary 
 for the profitable conveyance of coals, but that he was not entitled 
 to make a transverse road across the land, for purposes foreign to 
 the conveyance of coals (d). And where there was a grant of a 
 right of way as a foot or carriage way, with all liberties, powers, 
 and authorities necessary to the enjoyment thereof, it was held that 
 the grantee of the way might lay down a flagstone upon the land 
 in front of his house, over which the way passed, if the flagstone 
 was reasonably necessary for his enjoyment of the way, and the 
 laying of it down did not in any wise obstruct the carriage-road, or 
 cause any injury or inconvenience to the grantor (e). 
 
 By the civil law, every owner who was entitled to a way, or the 
 free passage of running water from his dominant tenement through 
 an adjoining servient tenement, was entitled to enter upon the 
 servient lands to repair the way or watercourse when necessary, 
 and bring thereon the materials necessary for the purpose, making 
 compensation to the owner of the servient tenement for all damage 
 done in the progress of the repairs (/). 
 
 Bight of tewing on the hanks of a navigable river. — There is no 
 general common law right of towing along the banks of a navigable 
 river (g) ; but such a right may be acquired by grant, custom, or 
 prescription (A). 
 
 When an easement of s'wpportfrom the adjoining land of the grantor 
 passes as accessoriail to a grant of land or of a tenement. — If the 
 landowner seU a portion of his land, avowedly and expressly for 
 building, or for the construction of a road or railway, he impliedly 
 
 (b) 1 Wms. Saund. 323a, Z2Sh.. Proctor (e) Gerrard v. Cooiie, 2 B & P., N. K. 
 y, Hodgson, 10 Exch. 824; 24 Law J., ' 115. 
 
 Exch. 195. - /y) (jale on Easementa, 4th ed. 496. 
 
 (c) Taylor t. Whitehead, 2 Doug. 745 ; (g) SaU t. Heriert, 3 T. K. 233. 
 M'Smneji v. Haynea, 1 Ir. Eq. E. 322 ; (A) As to the right to the soil of tow 
 P°^*' • % , . ingpathB,Bee«osi, ch.6,s. 2. 
 
 {d) Senhouse r. Chrietim, 1 T. E. 569. 
 
SECT. l.J IMPLIED EASEMENT OF SUPPOET. 89 
 
 grants to the purchaser, in the absence of statutory provisions to 
 the contrary, an easement of lateral support from his adjoining 
 land ; and if the vendor reserves to himself the right to the minerals 
 underneath the surface, he nevertheless impliedly grants all such 
 adjacent and subjacent support as is reasonably necessary to enable 
 the purchaser to erect and maintain his buildings, road, or railway ; 
 and neither the vendor, nor those who claim under him, can after- 
 wards excavate so as to endanger this support and derogate from 
 the grant (i). 
 
 How far this adjacent and subjacent support must extend is a 
 question which in each particular case will depend on its own 
 special circumstances. If the surface of the land granted is merely 
 a common meadow, or a ploughed field, the necessity for support 
 wUl be much less than if it were covered with buildings. All which 
 a grantor of the surface can be reasonably considered to grant or 
 warrant, by implication of law, is such a measure of support, sub- 
 jacent and adjacent, as is necessary for the land in its condition at 
 the time of the grant, or to enable the grantee to use it for purposes 
 for which it was known to be required. 
 
 "Thus, if I grant a meadow to another, retaining the minerals 
 under it, and also the adjoining land, I am bound so to work my 
 mines and to dig my adjoiaing lands as not to cause the meadow to 
 sink or faU. over. But if I do this, and the grantee thinks fit to 
 buUd a house on the edge of the land he has acquired, he cannot 
 complain of my workings and diggings if by reason of the additional 
 weight he has put on the .land they cause his house to fall. If, 
 indeed, the grant is made expressly to enable the grantee to build 
 his house on the land granted, then there is an implied grant and 
 warranty of support, subjacent and adjacent, as if the house had 
 already existed (j). And if the additional weight of the building 
 has in nowise caused the surface to sink, and the land would have 
 sunk if no building had been put upon it, the excavator or miner is 
 responsible for the damage done both to the land and buildings " 
 (ante, p. 62). In reserving mines and minerals, therefore, the 
 grantor must be understood to have reserved them so far only as he 
 can work them consistently with the preservation of the grant of 
 the surface (k). 
 
 Of the right to search for minerals under lands weighted hy railways 
 
 (i) North-Easl. Rail. Co. v. Croeland, 452. North-Bast. Hail. Co. v. Elliott, 1 
 
 32 Law J., Ch. 358. This rule, however, Johns. & Hem. 145; 29 Law J., Ch. 812; 
 
 does not necessarily apply where lands 30 Law J., Ch. 164 ; 32 L. J., Ch. 402. 
 
 are taken under the provisions of an act N. E. JR. Co. v. Orossland, 2 Johns. & 
 
 of parliament, e.g. for constructing a sewer. Hem. 565. Harris v. Ryding, 5 M. & W. 
 
 Met Board of Works v. Met. Rail. Co., 60. Haines v. Roberts, 7 Ell. & Bl. 625 ; 
 
 L. R., 3 C. P. 612 ; 4 lUd. 192 ; 38 L. J. 6 ib. 643. 
 O. P. 172. (*) See BeU v. WUson, L. E., 1 Oh. 
 
 (;■) Cakd. Rail. Co. v. Sprot, 2 Macq. App. 303. 
 
90 CONVENTIONAL SEKVITUDES. [CHAP. III. 
 
 and canals. — By the Eailway Clauses Consolidation Act (8 & 9 Vict 
 c. 20), it is enacted (s. 77) in the case of the purchase of lands by 
 any company constituted under that Act, that the company shall 
 not be entitled to any mines of coal, ironstone, slate, or other 
 minerals under any land purchased by them, except such part 
 thereof as shall be necessary to be dug or carried away, or used 
 in the construction of the works, unless the same shall have been 
 expressly purchased, and that all such mines, excepting as aforesaid, 
 shall be deemed to be excepted out of the conveyance of such lands, 
 unless they shall have been expressly named therein and conveyed 
 thereby. And by s. 78 it is enacted, that if the owner, lessee, or 
 occupier of any mines or minerals lying under the railway, or any 
 of the works connected therewith, or within the prescribed distance^ 
 or where no distance shall be prescribed, forty yards therefrom, be 
 desirous of working the same, such owner, &c., shall give notice in 
 writing to the company of his intention ; and if it appear to the 
 company that the working of the mines is Ukely to damage the 
 works of the railway, the company may, by giving compensation in 
 the mode provided by the statute (I), prevent the working of the 
 mines. But if, within thirty days after the receipt of the notice, 
 the company do not state their willingness to treat for the payment 
 of compensation, the owner of the mines may work them in a 
 maimer proper and necessary for the beneficial working thereof, 
 and according to the usual manner of working mines in the district, 
 making good damage done to the railway or works by improper 
 working. 
 
 Similar provisions have been inserted in various acts of par- 
 liament incorporating canal companies, and enabling them to pur- 
 chase lands for the formation of a canal, and the effect of them is 
 to deprive the company of the right to support for the railway or 
 canal from coal, ironstone, slate, or minerals lying beneath the 
 surface of the adjoining land, within the purchasing distance, or 
 beneath the land over which the railway or canal is carried,- unless 
 they have purchased the slate or minerals, or compensation has been 
 given in the manner prescribed by the statute (m). 
 
 Under statutory provisions of this sort, the company do not in 
 the first instance pay to the landowner more than the value of the 
 surface in the shape of purchase-money, or for the injury to the 
 surface, if compensation only is made for damage ; the minerals 
 remain the property of the owner of the soil ; but where he is 
 desirous of getting them, the company have the option of purchasing 
 them at a fair price, to be settled, in case of dispute, in the usual 
 way. These provisions, it has been observed, are for the benefit of 
 
 {I) Post. ch. 16. L. E., 2 H. of L. Ca. 27. Midland RaU. 
 
 (m) Great West. Bail. Co. v. Bennett, Co. t. Oheckley, L. E., 4 Eq. Ca. 19. 
 
SECT. 1.] DISTURBANCE OF EIGHT OP SUPPORT — MINING. 91 
 
 the company, who are relieved from the great expense of buying 
 the minerals along the whole line of an intended railway or canal 
 in the first instance, before it is constructed ; and are enabled to 
 postpone the purchase of them until the time when, from the state 
 of the market in the neighbourhood, the owners really want to get 
 them. When this happens, the company have an option either to 
 buy, in which case the landowner cannot get the mineral, but is 
 fully compensated for the loss of that right, or not to buy, in which 
 case he receives no compensation at all, hut his right to get them 
 remains as complete as if no railway had been made (n). 
 
 These statutory provisions do not exclude the ordinary right of 
 a purchaser to support from adjacent land situate beyond the pur- 
 chasing limits ; and, therefore, where a vendor has sold land to a 
 railway company for the erection of a bridge or a viaduct, he 
 cannot excavate his own adjoining land, situate beyond the pur- 
 chasing limits, so as to deprive the bridge or viaduct of the neces- 
 sary adjacent support (o). 
 
 The 81st section of the 8 Vict. c. 80, enacts " that a railway com- 
 pany shall from time to time pay to the owner, lessee, or occupier 
 of mines extending so as to lie on both sides of the railway, all 
 such additional expenses and losses as shall be incurred by such 
 owner, &c.," by reason of the severance of the surface land, or of 
 the continuous working of the mines being interrupted, or by 
 reason of the same being worked so as not to prejudice the rail- 
 way, and in case of dispute as to the amount " of such losses and 
 expenses," the same shall be settled by arbitration. An arbitrator 
 may, under this section, include damage not actually incurred, but 
 which wiR be necessarily incurred by the mine-owner, by reason of 
 the severance, and the interruption in the working of his mines, if 
 it be reasonably ascertainable (p). 
 
 It has been held that clauses in Canal Acts, requiring coal- 
 owners to give notice to canal companies of their intention to 
 work their mines within a certain distance of the canal, and 
 giving liberty to the company to inspect the works, and to pro- 
 hibit the owners, upon compensation being made, from working 
 within that distance, were framed for the purpose of .enabling the 
 company to purchase out the rights of the coal-owners, if they 
 thought their canal works likely to be endangered by the nearer 
 approach of the miners ; that if the company declined the pur- 
 chase, the coal-owners were left to their common law rights, as if 
 no canal had been made, and they might take every part of their 
 
 (n) Dudley Canal Nav. Co. v. Graze- (o) EUAat v. North-East. Hail. Co. 32 
 
 brook, 1 B. & Ad. 72. Stourbridge Canal Law J., Ch. 402. N. E. R. Co. v. Cros- 
 
 Co. v! Dudley {Earl of), 30 Law J., Q. lamd, 32 Law J., Ch. 353. 
 B. 108. London & North-West. Rail. Co. (p) Whitehousey.WoherhamvptonRail., 
 
 Y.Aclcroyd, 31 Law J., Ch. 588. L. K., 5 Eioh. 6. 
 
92 CONVENTIONAL SERVITUDES. [CHAP. III. 
 
 coal in the same manner as they might have done before the Act 
 passed, their former rights in that respect not having been taken 
 away by the Act, which has only appropriated the surface of the 
 land, and so much of the soil as was necessary for the cutting and 
 making of the canal, leaving the coal, &c., to the owners, to be en- 
 joyed in the same manner as before {q). 
 
 " The difficulty which arose upon the Dudley Canal Act was 
 this, that the wording of the clause there, ' doing no damage,' was 
 coupled with the power of the company to purchase, and it seemed, 
 in the judgment of the court, to be a useless and frivolous clause, 
 unless they gave a wider interpretation to the words ' working 
 without doing damage,' because, they said, if it is to be a simple 
 and absolute clause that no damage shall be done, it is a very idle 
 thing to put the company upon the terms of purchasing " (r). But 
 where there is no clause in the Act requiring the railroad or canal 
 proprietors to procure immunity from damage by purchasing the 
 minerals, and authorizing them to make the purchase, the mine- 
 owner cannot work his mine so as to destroy or injure the raiboad 
 or canal (s). And the same principle applies if the works and ex- 
 cavations of the mine-owner, endangering a railway structure, are 
 situate beyond the purchasing limits, so that the clause does not 
 apply (t). If a mine-owner, having worked up to the purchasing 
 limits, gives notice to the company, and the company decline to 
 purchase the minerals, and the mine-owner proceeds with the 
 working of the mine under the railway, and the soil sinks, and 
 the railway drains and drainage works become choked up or de- 
 stroyed, and the surface-water from the railway percolates through 
 the earth, and floods the mine, the railway company is in general 
 bound by statute to make good the damage and rebuild the drains, 
 and this from time to time, as the earth subsides through the 
 working of the mine (u). 
 
 Servitude of support from one house to another, where several 
 houses have heen built together, so as to require mutual support. — 
 Where a number of houses have been built together by one owner, 
 so as to require and receive mutual support, there is, either by a 
 presumed grant, or by a presumed reservation, a right to such mutual 
 support for their common protection or security, so that if the 
 houses are afterwards sold and conveyed to different individuals, 
 this mutual dependence of one house upon another, and right to 
 mutual support, contipues ; and if several adjoining landowners, 
 
 (2) Wyrhy Canal Co. v. Bradley, 1 (t) North-East. Rail. Co. T. MlioU, 2 
 
 East, 371. De &. F. & J. 423 ; 30 Law J., Ch. 160 ; 
 
 (r) Wood, V.-C, NortK-East. Rail. Co. 32 Law J., Ch. 402. 
 
 V. £«toM, 29 Law J., Ch. 811. («) BagnaU r. Land. & North-West. 
 
 (s) Reg. V. Aire cfc Ccdder Nav. Co., 30 RaU. Co., 7 H. & N. 423 ; 31 Law J., 
 
 Law J., Q. B. 337. Exch. 121. 
 
SECT. 1.] SUPPOET BY LOWER TO UPPER STORY. 93 
 
 by common consent and agreement, build their houses together, so 
 that the house of one of them rests upon and requires the support 
 of the adjoining house, there -would be an implied grant of a right 
 to mutual support ; and this right would continue, notwithstanding 
 alterations in the ownership of the houses by sale, mortgage, devise," 
 &c. (x). But if two houses are built against each other, with 
 separate and independent walls, resting upon separate and inde- 
 pendent foundations, so as to stand independently of each other, 
 one house has no right to an easement of support from the 
 other (y). 
 
 Accessorial servitude of support where the separate floors of a 
 building are granted to several different proprietors. — If the owner 
 of a house conveys the upper story to a purchaser, there is an im- 
 plied grant of support from the lower stories^ so that the owner of 
 the latter cannot interfere with the walls and beams upon which 
 the upper story rests, and prevent them from affording proper 
 support (s). And if a man builds a house, and forms each story or 
 flat into a separate dwelling, and sells or lets the different stories 
 of the house to different individuals, there is an implied grant to 
 every purchaser or hirer of the rooms of all such adjacent and 
 subjacent supiport as may be necessary for the maintenance and 
 enjoyment of each respective dwelling. And when the different 
 floors and flats of the same house are held as separate freeholds by 
 different individuals, the owner of the lower rooms and foundations 
 is in general bound to uphold and maintain the main walls and 
 necessary supports of the rooms above (a). 
 
 " Where I have a chamber below, and another has a chamber 
 above mine, as they have here in London, in this case I may 
 compel him who has the chamber above to cover his chamber for 
 the salvation of the timber of my chamber below; and in the 
 same manner he may compel me to sustain my chamber below, by 
 the reparation of the principal timber, for the salvation of his 
 chamber above " (b). There is a writ in Natura Beevium to a 
 mayor, to command him that has the lower rooms to repair the 
 foundation, and him that has a garret to repair the roof; and that 
 is grounded upon a custom (c). 
 
 If the owner of a house grants the upper rooms to be holden 
 and enjoyed for life or in fee, reserving to himself the lower rooms, 
 he impliedly undertakes not to do anything which will derogate 
 from his own grant. If, therefore, he were to remove the supports 
 
 (a;) Richards v. Rose, 9 Exch. 221. (o) Richards v. Rose, 9 Exoh. 221 ; 23 
 
 (y) Solomon v. Vintners Co., 4 H. & Law J., Eioh. 3. Humphries Y.Brogden, 
 
 N. 598. Peyton v. Mayor of London, 9 12 Q. B. 747. 
 
 B. & C. 736. Kempston y. Butler, 12 Ir. (5) Anon. Keilw. 98, pi. 4. Anon. 11 
 
 C. L. R. 516. Mod. 8. 
 
 (z) Oaledon. Rail. Co. T. Sprot, 2 Macq. (c) Tenant v. Goldwin, 6 Mod. 314 ; 2 
 
 450 Ld. Raym, 1093 ; I'itis. Nat, Brev, 127, 
 
94 CONVENTIONAL SERVITUDES. [CHAP. III. 
 
 of the Tipper room he would be liable to an action (d). And if he 
 conveys the house to another by deed, reserving a lower story to 
 himself, with powers of enlarging and altering such lower story, 
 those powers must be exercised so as not to interfere with or 
 endanger the necessary support to the rooms above, unless the 
 right of support is expressly renounced by the grantee of the upper 
 stories (e). 
 
 By the French law, "when the different stories of a house 
 belong to different proprietors, and the titles to the property do not 
 regulate the mode of reparations and reconstructions, they must be 
 made in the following manner : — ^The main walls and the roof are 
 at the charge of all the proprietors, each in proportion to the value 
 of the story belonging to him. The proprietor of each story makes 
 the floor belonging thereto ; the proprietor of the first story erects 
 the staircase which conducts to it ; the proprietor of the second 
 story carries the stairs from where the former ends to his apart- 
 ments ; and so of the rest " (/). 
 
 Grants of the privilege of a free passage of light and air to 
 newly-opened windows across the adjoining land of the grantor 
 must be authenticated by deed, or established by implied grant, or 
 by prescription. If a parol licence or permission is granted to a 
 neighbour to open a window overlooking the adjoining ground of 
 the defendant, the parol licence will not prevent the defendant 
 from building a waU. on his own land, and thereby shutting out the 
 light and air from the newly-opened window. If, therefore, per- 
 mission not under seal is given to a defendant, to open a window 
 in his house overlooking the plaintiff's garden, and the plaintiff, 
 after the window has been opened, finding that his privacy has 
 been invaded, builds a wall on his own ground which blocks up 
 the offending window, and the defendant then enters upon the 
 plaintiff's land, and knocks the wall down, he will be responsible 
 in damages for a trespass, and cannot justify his entry upon the 
 plaintiff's land under colour of the parol licence to open the 
 window (g). 
 
 When the privilege of free passage for light and air across adjoin- 
 ing land passes as accessorial to a grant or conveyance, — 'If the owner 
 of a house and the surrounding land sells the house without the 
 land, a free passage for so much light and air as may be reasonably 
 necessary for the beneficial occupation and enjoyment of the house 
 is impliedly granted by the vendor across his own adjoining un- 
 sold land, unless the privilege is excluded by the express terms of 
 the conveyance. The vendor, therefore, cannot build on his own 
 
 (d) Parko. B., 5 M. & W. 71. {g) Bridges v. Blanchard, 1 Ad. & B. 
 
 (e) Si}nart v. Morton, 5 Ell. & Bl. 47. 5i9. Wood v. Lea<ibit(er, Lee v. Skven- 
 (/) Cod. Civ, iJT, ?, tit, 4, Sirt, 664. smi, cmte, p. 82. 
 
SECT. l.J IMPLIED GEANT OF LIGHT OE AIE. 95 
 
 adjoining land so as to obstruct the access of light and air to the 
 windows of the house. Having granted the house, he can do no 
 act in derogation of his own grant. And if he sells and conveys 
 the house to one man, and the adjoining land to another, the 
 purchaser of the adjoining land cannot build so as to darken or 
 obstruct the windows of the house, although such adjoining land 
 may have been described as building-land, and the intention to 
 build thereon may have been known to the purchaser at the time 
 he purchased itQi). But where the owner in fee of an ancient 
 house, and of the land surrounding the house, sold such surround- 
 ing land without the house, and the purchaser built thereon, so as 
 to obstruct the access of light and air to the windows of the ancient 
 house, it was held that the owner had no remedy for the injury, and 
 that there was no implied restriction on the right of the purchaser 
 to build as he pleased on his own land (■*). 
 
 Where the shell of an unfinished house was sold, with openings 
 in the walls for the insertion of windows and doors, it was held 
 that the vendor could not, after the sale and conveyance of the un- 
 finished structure, build on his own adjoining land, so as to obstruct 
 the access of light and air to the spaces left for windows, or place 
 obstacles in the way of the exercise of a right of way to the 
 apertures intended for doors. And when two separate purchasers 
 buy two unfinished houses from the same vendor, and at the time 
 of the purchase the spaces for windows and doors are marked out, 
 this is a sufficient indication to the purchasers of the rights they 
 are respectively to enjoy ; so that they cannot subsequently inter- 
 fere with each other's enjoyment of the windows and doors as 
 marked out and impliedly agreed upon at the time of the sale (/fc). 
 So if two lessees of houses derive title from the same lessor, the 
 one cannot, by buildings or erections, encroach upon the light 
 and air coming to the windows of the house occupied by the 
 other (T). 
 
 In these cases the right to the free passage of a reasonable 
 quantity of light and air across the adjoining land becomes appur- 
 tenant to the house, and passes therewith to all successive owners 
 of the property. 
 
 Upon the same principle, it has been held that a landlord, after 
 he has demised his house, cannot obstruct the lights existing at the 
 time of the demise (m) ; nor can a lessee darken or obstruct windows 
 of his own landlord which existed at the time of the demise, whether 
 
 (h) Palmer v. Fletcher^ 1 Ler. 122. (h) Cowpton t. Richwrdi, 1 Price, 27. 
 
 Bayley, B., Oanhcm t. Fisk, 2 Or. & J. Glave v. Harding, 27 Law J., Ezch. 286. 
 J 28. Swamborough v. Coventry, 9 Bing. {I) Covtts v. Gorkam, 1 M. & M. 396. 
 
 gQg Jacomb v. Knight, 32 I/aw J., Ch. 601. 
 
 (/) White V. Bass, 7 H. & N. 722; 31 (m) Cox v. Matthews, 1 Ventr. 237, 239. 
 
 Law J., Exch. 283. - Rosewell r. Pryor, 6 Mod. 116. 
 
96 CONVENTIONAL SERVITUDES. [CHAP. III. 
 
 such windows were ancient or of recent construction (w). But tlie 
 right of uninterrupted enjoyment is confined to the windows exist- 
 ing at the time of the conveyance, grant, or demise, and does not 
 extend to windows subsequently opened, or to new windows vary- 
 ing in size, elevation or position (o). 
 
 The rule is the same where a man sells land on the banks of a 
 stream ; he cannot, in derogation of his own grant, continue to 
 foul the water in front of the land sold, unless he expressly reserve 
 such right (p). 
 
 Of the rule or maxim of law that no man shall derogate from his 
 own grant. — It is, as we have seen, a principle of law that no man 
 shall derogate from his own grant {g) ; if, therefore, a man has 
 granted to another estovers, or a right to cut and carry away wood 
 for burning, or a right to fish for his own use and consumption, and 
 he destroys all the wood out of which the estovers were to be taken, 
 or draws all the water away from the pond or stream, and destroys 
 the fish, the party grieved shall have his remedy by action ; for 
 these are wilful acts of the grantor, and it is a misfeazance in him 
 to annul or avoid his own grant {r). If a man grants lands, re- 
 serving to himself the right to the coals and minerals beneath the 
 surface, he cannot excavate them to the injury of the surface, and 
 thereby derogate from his own grant. And if one man grants to 
 another the privilege or easement of making and maintaining a 
 covered sewer or watercourse, of certain specified dimensions, 
 through the land of the grantor, for the purpose of carrying off 
 waste and refuse water from the land of the grantee, the grantor 
 has no right to use the sewer, and pour water into it, without the 
 licence and permission of the grantee (s). If a miUowner sells a 
 watermill which is supplied by water from an open sluice on the 
 land of the vendor, the vendor cannot, after he has sold the mill, 
 lawfully close the sluice, as he would, by so doing, derogate from 
 his own grant. Both the vendor, and all persons claiming under 
 him, are bound to keep the sluice open for the benefit of the grantee 
 of the mill {t). 
 
 Of the transfer from one person to another of easements and profits 
 a prendre. — Uasements and profits d, prendre in gross, not appendant 
 or appurtenant to land, cannot be transferred from hand to hand, 
 and kept alive, so as to burthen the land for aU. time in the hands 
 of subsequent purchasers and proprietors ; and no easement, privi- 
 lege, or profit to be enjoyed over, or taken from, land can be made 
 
 (n) Riviere v. Bower, R. & M. 24. 94, 95. 
 
 (o) Blanchard v. Bridges, i Ad. & E. (r) Twysden, J., Pom/ret v. Sicroft, 1 
 
 190. Saund. 322. 
 
 Xp) Orossley v. Lightowler, L. K., 3 Eq. (a) Lee v. Stevenson, E. B. & B. 512 ; 
 
 Ca. 279. 27 Law J., Q. B. 266. 
 
 (S) Mia T. Mayor, Jce. of Bridgnorth, («) Miner v. Qilmowr, 12 Moore's P, C. 
 
 ?2 Law J., C, P. 273, See ante, pp. 84, 0, 131, 
 
SECT. 1.] TRANSFER OF EASEMENTS, AND PROFITS A PRENDRE. 97 
 
 appendant or appurtenant to land, unless it is accessorial to the use 
 and enjoyment of landed property (u). There must be a dominant 
 tenement, for whose benefit the right exists, as well as a servient 
 tenement (a;). Thus, a right of way unconnected with the enjoy- 
 ment or occupation of land cannot be annexed as an incident to an 
 estate, nor can a waj' appendant to a house or land be gxanted away 
 or made a way in gross, for no one can have such a way but he who 
 has the land to which it is appendant. It is not in the power of an 
 owner of land to create rights not connected with the use or enjoy- 
 ment of land, and annex them to it, nor can he subject the land to 
 a new species of burthen, so as to bind it in the hands of an 
 assignee. " It would be a novel incident annexed to land, that the 
 owner and occupier should, for purposes wholly unconnected with 
 that land, and merely because he is owner and occupier, have a 
 right of way over other land ; and a grant of such a privilege or 
 easement can no more be annexed, so as to pass with the land, than 
 a covenant for any collateral matter " (y). 
 
 "Private ways over another man's grounds," observes Blackstone, 
 "may be grounded on a special permission, as when the owner of. 
 the land grants to another a liberty of passing over his grounds to 
 go to church, to market, or the like : in which case the gift of 
 grant is particular, and confined to the grantee alone ; it dies with 
 the person, and the grantee cannot assign over his right to any 
 other " (z). Thus a licence to a man to hunt in my park, or to 
 walk in my orchard, extends but to himself. And a way granted 
 to church over any land extends not to any other but the grantee 
 himseK (a), and therefore he may not give ~or grant this to 
 another (6). But if the incorporeal right is appendant or appur- 
 tenant to a house or land, and accessorial to the use and enjoyment 
 thereof, it passes with the tenement, to which it is annexed to the 
 successive assignees and owners thereof by a grant of the tenement, 
 so that the benefit and the burthen of the exercise and enjoyment 
 of the incorporeal right wUl accompany the dominant and servient 
 tenements into the hands of the several successive assignees and 
 owners thereof, so long as such dominant and servient tenements 
 remain vested in the hands of separate proprietors (c). 
 
 A claim by one landowner to enter upon his neighbour's land 
 and cut down trees and sell them, is a claim of a profit ^ prendre in 
 
 (u) Mis T. Mayor, <Scc. of Bridgnorth, (y) Achroyd v. Smith, 10 C. B. 188. 
 
 32 Law J., C. P. 273. As to when a BaMey v. Stevens, 12 0. B., N. S. 91. 
 
 right of shooting is an incorporeal right EiU v. Tupper, 2 H. & C. 121. 
 in gross, see Overseers of Milton t. Over- (z) 2 Bl. Comm. 35. 
 
 seers of Bowes, h. K., 1 Q. B. 359. (a) Wingate's Maxims, 379. 
 
 (x) Nemo potest servitutem acquirere, (h) Sheph. Touch. 239. 
 
 nrbanl vel rustici prsedii, nisi qui habet (c) See post, ch. 3, s. 1, as to the mer- 
 
 pradium ; nee quisquam debere nisi qui ger and extinguishment of easements and 
 
 prredium habet.— Instit. lib. 2, tit. 4, profits a prendre by unity of ownership of 
 
 § 3. De Seryitutibus. we dominant and se^teflt tenements. 
 
98 CONVENTIONAL SERVITUDES. [CHAP. IIL 
 
 gross, and cannot be made appurtenant to land, as it is in nowise 
 accessorial to the use and enjoyment of an estate, but a fclaim to 
 cut down tborns and firewood to burn in the dwelling-house of the 
 claimant, is a profit k prendre, accessorial to the use and enjoyment 
 of the dwelling-house, and may be made appendant or appurtenant 
 thereto, so as to giye the owners and occupiers thereof for the time 
 being a right to the privilege (d). 
 
 By the Erench civil code, it is declared to be lawful for proprie- 
 tors to establish over their estates, or in favour of their estates, such 
 servitudes as seem good to, them, provided the services established 
 be not imposed either on a person, or in favour of a person, but 
 only on an estate, and for the benefit of an estate (e). 
 
 "By the grant of trees by tenant in fee simple, they are 
 absolutely passed from the grantor and his heirs, and vested in the 
 grantee, and go to his executors or administrators, being, in under- 
 standing of law, divided as chattels from the freehold, and the 
 grantee hath power incident and implied from the grant to fell 
 them when he will, without any other special licence (/) ; and the 
 . 'law gives him power, as incident to the grant, to enter upon the 
 land, and show the trees to those who would have them, for with- 
 out sight none would buy, and without entry none could see 
 them (ff) ; and he may assign over the property in the trees, and 
 his assigns may enter upon the land, so long as it remains the 
 property of the grantor, and fell the trees and carry them 
 away " (h). 
 
 A grant to a man and his heirs of woods, underwoods, corn, and 
 produce which may hereafter grow on the land of the grantor (%), 
 conveys to the grantee and his heirs a profit k prendre, exerciseable 
 against the grantor and his heirs, so long as the ownership of the 
 soil remains ia them (Je) ; but no specific property in anythiag vests 
 in the grantee until it has been severed from the inheritance, and 
 reduced into possession (I). A grant of this description amounts to 
 a mere personal contract, operative only between the immediate 
 parties to it, and their heirs, and does not biad the land ia the 
 hands of persons to whom the land may be subsequently conveyed, 
 and who were no parties to the deed of grant (m). 
 
 "Incidents of a novel kind cannot be devised and attached to 
 property at the fancy or caprice of any owner. There can be no 
 
 {d) Dowglms v. Kendatt, Cro. Jae. 256. profit k prendre,"—" an odd sort of es- 
 
 fe{ ^"'l- 9^"- '^°- ^^^- tote." Erie, C. J., 12 C. B., N. S. M3. 
 
 (f) amAyv. Butler, Hob. 168. Oar- (J) Bcwrmgion's case, 8 Co. 136b. 
 Oym (Earl of) v. Armdtage, 2 B. & C. 210. (l) Mob-oydv. MwrihO,, 30 Law X, Ch. 
 
 (g) Ufords ease, 11 Co. 51b, 52a. 387. Imm v. Thornton, 1 C. B. 379. 
 (A) Falmers case, 5 Oo. 24b. Basset (m) EvppA v. BaUm, 2 Myl. & K. 536. 
 
 y. M(mmd, Ore. Eliz. 819. Ld. Wensleydale, iJoajJaitoii v. W^tm, 8 
 
 (4) Described as "a fee siinple in a H. L.,0. 359. Mdom v, Harrvt, U Ir. 
 
 CIlK. 3(9. ■ 
 
SECT. 1.] TEANSFEK OF EAS'EMENTS, ETC. 99 
 
 harm in allowing the ^fullest latitude to men in binding themselves 
 and their representatives, that is their assets, real and personal, to 
 answer in damages for breach of their obligations ; but great detri- 
 ment would arise, and much confusion of rights, if parties were 
 allowed to invent new modes of holding and enjoying real property, 
 and to impress upon their lands and tenements a peculiar character, 
 which should follow them into all hands, however remote. Every 
 close, every messuage, might thus be held in a several fashion, 
 and it would hardly be possible to know what right the acquisi- 
 tion of any parcel of land conferred, or what obligations it 
 imposed " (n). 
 
 There are cases, indeed, where the right to the future produce 
 and profits of the soil exists as an assignable and inheritable in- 
 terest, burthening the land in the hands of subsequent^ purchasers 
 and proprietors : but these are cases where the relationship of 
 landlord and tenant existed between grantor and grantee of the 
 right, and the grant constitutes, or is accompanied by, a covenant 
 which runs mth the land, binding upon both the assignee of the 
 reversion and the assignee of the term {o). Thus, where a lessor 
 granted, and covenanted in a lease, that the lessee, his executors and 
 assigns, should take and carry away such corn as should be growing 
 upon the ground at the end of the term, and the lessor sold and con- 
 veyed away his reversion, and the executor of the lessee, having sown 
 the corn, sold it, it was held that the property in the. growing crop 
 vested in the purchaser, who might enter upon the land and take it, 
 for there was both a covenant and a grant, and the covenant ran 
 with the land, and bound both the assignee of the reversion and the 
 assignee of the term {p). And such an interest running with the 
 land, and binding the assignee of the reversion and the assignee , 
 of the terra, will pass under a general assignment of a lessee's 
 " tenant right " (§■). 
 
 There are also, as we shall presently see, certain rights of 
 common in gross, and certain customary rights of sole and several 
 pasturage, which exist in various manors as "inheritable and trans- 
 femble estates; but these are rights vested in the customary 
 tenants of the manor, of depasturing cattle upon open uninclosed 
 downs and moors and waste places belonging to the lord of the 
 manor, and depend upon the custom of the manor, and cannot be 
 relied upon as authorities for ascertaining the rights of persons in 
 ordinary cases. 
 
 Where the grant is of a liherty, lieence, power, or authority to dig, 
 
 ln\ Ld Broueham, Keppd v. BaUey, {p) OrantJum t. Hmuley, Hob. 132. 
 
 utsup ' 5 ' X- Jforiyre V. mKianw, 1 H. & N. 827 J 26 
 
 (o) Addison on Contracts, eh. 22, s. 1, Law J^Exeh. 121. 
 gt^ ed_ (q) Fetch v. Tutm, 15 M. & W. 116. 
 
 H 2 
 
100 CONVENTIONAL SERVITUDES. [CHAf. III. 
 
 work, mine, and search for, raise and carry away, metals and 
 minerals in certain land, and dispose of the ore that should be there 
 found to the use of the grantee and his heirs, and is not a grant or 
 demise of all the ores, metals, or minerals then existing on the 
 land, or existing within certain limits, so as to exclude the grantor 
 himself from searching for minerals in his own land, or within the 
 limits specified, it is nothing more than a grant of a licence (irrevo- 
 cable on account of its carrying an interest), to search and get ore, 
 with a grant of such of the or^ only as can be found and got, the 
 grantor parting with no estate or interest in the rest. In this case 
 -the grantee has no estate or property in the land itself, or any par- 
 ticular portion thereof, or in any part of the ore, metals, or 
 minerals ungot therein; but he has a right of property only in such 
 part thereof as, upon the liberty granted to him, should be dug 
 and got ; i.e., no more than a mere right to a personal chattel when 
 obtained in pursuance of incorporeal privileges, granted for the 
 purpose of obtaining it (r). A licence of this description, how- 
 ever, granted to a man and his heirs, conveys an inheritable and 
 assignable interest (s), so that the grantee may sell and assign the 
 right, and his assignee would have a right to enter and search for, 
 raise and carry away, minerals as against the grantor and his heirs. 
 But whenever a profit h, prendre merely is granted, there is only a 
 licence or covenant so long as no specific chattel has been severed 
 from the inheritance, and taken possession of under it {ante, p. 99) ; 
 and such licence or covenant will not bind the land in the hands 
 of subsequent purchasers, without notice (t) ; for, " if a man grants 
 a licence, and then parts with the property over which the privilege 
 is to be exercised, the licence is gone (u), for it is an authority only 
 with respect to the soil of the grantor, and if the close ceases to be 
 his soU, the authority is instantly at an end " («). 
 
 If, however, the grant is not merely of a profit a prendre in 
 alieno solo, but a conveyance of the land itself, such as a grant to 
 a man, his heirs and assigns, of all the existing minerals (jf) ox a 
 right to search for, raise, and carry away, all the minerals to be 
 found within certain prescribed limits, the property in the 
 minerals would then pass to the grantee, and the latter would 
 be the sole owner of them, the grantor continuing the owner of the 
 surface. 
 
 (r) Doe V. Wood, 2 B. & Aid. 738. («) Pollock, C.B., Colman v. Foster, 
 
 Chdlvam v. Williamson, 4 East, 475. 1 H. & N. 40. Brown v. Metrop. Co., 
 
 JHountjoy's case, i Leon. 147 ; Godb. 18. tfcc, 1 Ell. & Ell. 832. 
 
 Newbyv. Harrison, lJoh.ns.&,ILem.Z9S. (x) Parke, B., WaUis v. Hwrriton, 4 
 
 Cwrr V. Benson, L. k., 3 Ch. App. 524. M. & W. 544. MaUne v. Harris, ante, 
 
 (s) Mushett V. Hill, 5 B. N. C. 694. ". p. 98. 
 
 (t) Ld. Wenaleydale, Bowbotham v. (y) Cardigam (Earl of) v. Armtage, 2 
 
 Wilson, 8 H, L. 0. 359 ; 30 Law J., Q. B. & C. 197. . 
 B. 965, 
 
SECT. 1.] EIGHTS CLAIMABLE BY CUSTOM. 101 
 
 Hxclusive licences must be framed with words of an exclusive 
 character, otherwise the grantor is not precluded from granting the 
 same privilege to other persons (z). A mere licensee of a right of 
 way, or of a right of passage with boats on a canal, who has no 
 interest in the soil over which the privilege is exercised, has 
 no right of action against a wrong-doer who exercises the same 
 privilege, but does not obstruct the licensee in the enjoyment of 
 his right (a). 
 
 The Roman law discourages the division or dilution, amongst a 
 number of separate proprietors, of the rights of ownership of an 
 estate. The Eomans framed their laws with the view of preserving 
 the freedom of the right of property for all times and all future 
 persons. They provided that an estate shall have, at one and the 
 same time, only one dominus over it, and that his dominion should 
 constantly remain as little circumscribed' as possible, and not be 
 diminished by dividing his powers and prerogatives amongst several 
 persons. " The only true restrictions on property recognized by the 
 Eoman lawyers were the servitudes " (&). 
 
 Mights over another's land claimable hy custom. — To give 
 validity to a custom — which has been weU described to be a 
 usage obtaining the force of law within a particular district or at 
 a particular place, over the persons or thing to which it relates — 
 it must be certain and reasonable in itself. It is presumed 
 to have commenced from time immemorial (c), and must be 
 proved to have continued without interruption for the time 
 mentioned in the Prescription Act, and in analogy to that Act it 
 must further be shown to have been as of right. A custom, there- 
 fore, to demand a licence to fish, although upon payment of an 
 ancient and reasonable fee, cannot be supported {d). The question 
 whether it is reasonable or not belongs to the ju,dges of the land 
 to determine ; and a custom is not unreasonable merely because it 
 is contrary to a rule or maxim of the common law, nor because it 
 is prejudicial to' the interests of a particular individual ; but if it is 
 highly inconvenient in its enjoyment, and the inconvenience is real, 
 general, and extensive, it will be bad, though it has prevailed from 
 time immemorial (e). 
 
 A custom claimed by the inhabitants of a particular district to 
 go upon the soil of another, to take or to use water from a spring; 
 or well, or to wash and water cattle in a pond, is a good custom (/), 
 
 (2;) Neviby r. Harrison, 1 Johns. & (d) MiUs v. Mayor of Cokhester, L. E., 
 
 Hem. 396. Oarr v. Benson, supra. , 2 C. P. 476. 
 
 (a) Hill T. Tupper, 2 H. & 0. 121. (e) Tanistry's ease, Davys, 31, 82 ; Co. 
 
 (6) Mackeldy's Civil Law, by Kauf- Litt. 113a. fyson v. Smith, 9 A(J. & B. 
 
 man, book 1, oh. 4, § 293. 406 ; 6 ib. 746. Sogers v. Brenton, 10 
 
 (c) See, as to this presumption, Bryant Q. B. 26. 
 V. Foot, h. !{., 2 Q. B. 161 ; 3 iUd. 497. (/) Bace v. Wa»d, 4 Ell. & Bl. 702. 
 
 MiUs V. Mayor of Cokhester, infra. 
 
102 CONVENTIONAL SERVITUDES. [OHAP. HI. 
 
 and so is a custom claimed by victuallers, coming to a fair holden 
 at stated periods, to enter upon that part of the- common or waste 
 of a manor where the fair is held, and there erect booths. and 
 stalls, and put down posts, and place tables on the land, making 
 a certain customary payment to the lord of the manor, when 
 demanded (g). A custom for the inhabitants of a village to resort 
 to village greens, or uninclosed waste land or commons, the property 
 of the lord of the manor, for village sports, and for the purpose of. 
 recreation and amusement, is a good custom (h) ; but a claim by an 
 inhabitant of a town of a right to go at all times over every portion 
 of inclosed cultivated ground, cannot be supported, as it is incon- 
 sistent ■with any beneficial use and enjoyment of the inclosure by the 
 owner or occupier (i) ; a fortiori if the claim be upon a place beyond 
 the limits of the parish (j ). 
 
 The inhabitants of a vill or parish cannot as such claim by 
 custom to have a profit k prendre from the soil of another. There- 
 fore, a custom for all the inhabitants occupying lands in a particular 
 district to take drift sand or stones from a close contiguous to the 
 sea-shore (A;),, for the mending of their roads, cannot be supported, 
 as the sand, when it drifts on the close from the beach, becomes 
 part of the soil of the close (I). Neither can the inhabitants of a 
 parish claim a right by custom to angle and catch fish in another's 
 pond, although the claim be confined to a right to catch them, 
 setting up no right to take them away, for such a right, vested in a 
 multitude of persons, would be destructive of all the fish (m). But 
 a claim by the inhabitants of a village to take estovers (see post, 
 p. 106) in a royal forest, if founded on a grant from the crown, is 
 good, for as the crown has power to create corporations, a grant by 
 the crown to a class of persons is valid, and for the purpose of the 
 validity of the grant, such persons wiU be considered a corporation 
 quoad the grant, for grants by the crown in derogation of itsforestal 
 rights are construed liberally for the subject (n). 
 
 The general doctrine, that a right to take a profit in the soil of 
 another cannot by law rest on custom, is founded on the notion 
 
 (?) 2Vsojs V. Siaith, 6 Ad. & E. 745 ; v. Metrop. Board of Works, L. E., 3 Q. 
 
 9 ib. 406. As to unlawful fairs within B. 94, 682. 
 
 the metropolitan police district, see 31 & (h) The Board of Trade have power 
 
 33 Vict c. 106. Fairs may, on a repre- under 54 Geo. 3, c. 159, s. 14, and 25 & 
 
 sentatiou by magistrates, or of the owner, 26 Vict. c. 69, s. 16, to prohibit the taking 
 
 and with his consent, be abolished by the of shingle from the shores of any port or 
 
 Home Secretary ; 34 & 36 Vict. c. 12. ^arbour, where necessary for its protec- 
 
 (h) Abbot V. Weekly, 1 Ley. 176. Mtck tiou. 
 T. Bmilina, 2 H., Bl. 393. Mewnsey, t. (I) Blewett t. Tregannmg, 3 Ad. & E. 
 
 hrmy, 1 H. & C. 729 ; 32 Law j:,Exch. 554. Att.-Gen. t. Matkm, 4 K. & J. 
 
 94; 34 »5. 52. See Wa/rrich T. Quem'^ 579. Oomtable v. Nicholson, 14 C. B., 
 
 ■'T-"»fe, L. R., 10 Eq. Ca. 105. N. S. 230. 
 
 M Dyce-r. Hay, ante, p. 81. BeU v. (m) Bland t. Imsamhe, i EIL & Bl. 
 
 WardM, WiUes, 202. 7ig^ aote (c). 
 
 U) Sowerbyr. Obfema;», L. E., 2 Eich. (n) WiUmgale v. Mm&md, L. E., 3 
 
 96. As to squares in London, see Tulk Bq. Ca. 103. 
 
SECT. 1.] MANORIAL CUSTOMS. 103 
 
 that such an interest must, for its existence, have some person in 
 whom it is vested, and that a fluctuating body of persons, which 
 has no entirety or permanence, cannot take that interest which by 
 supposition is inmaemorial and permanent, because such a body, 
 from its nature, cannot prescribe for any thing. Necessity, however, 
 controls this, and creates oertaui exceptions in the case of rights of 
 common, aiud the stannary customs of Cornwall, in respect of the 
 right of dicing and searching for tin. 
 
 When a profit d prmdre is daimc^le ly custom. — Manorial 
 mstoms. — Bights of common, claimable by the copyhold or customary 
 tenants of a manor, in the demesne lands of the lord of the 
 manor (e), illustrate both the rule, that a profit k prendre is not 
 claimable by custom, and the exception to that rule. Thus, the 
 right of common of pasture in itself is an interest in land— the 
 taking of a profit of the soU, and properly matter of prescription. 
 If the copyholders of one manor will claim it in the wastes of 
 another manor, they must do so by prescribing in the name of their 
 lord, who, in the eye of the law, by reason of his estate, has such a 
 permanence as enables him to prescribe; but if they claim it in the 
 lord's wastes, they cannot prescribe in their own names and rights, 
 by reason of the want of permanence ; nor can they in their lord's 
 name, for he cannot claim, common in his own land; they are 
 therefore, from necessity, allowed to claim it by custom (jj). The 
 necessity grows out of the original compact between the lord and 
 the customary tenajits, when they received permission to cultivate 
 for their own benefit, on condition of the render of certain services, 
 certain portions of the lord's land. That compact included the 
 right of common on the lord's waste, and the law will not suffer 
 that right to want a legal character, and so be without the means 
 of legal enforcement, though at the expense of strict legal reason- 
 ing (q). 
 
 A custom in a manor, that the copyholders of inheritance may, 
 without licence from the lord of the manor, break the surface of 
 their own copyhold tenements, and dig and get clay therefrom 
 without stint, for the purpose of making and selling bricks, 
 is a good manorial custom. lb has been contended that sudh a 
 custom is bad, as being iaconsistent with the right of the lord, 
 who has an interest in the soil, and that the custom extended to 
 taking away the soil itself, which the copyholder could, even by 
 custom, have no right to do. "We are," however, observes the 
 court, " unable to draw any sound distinction between a custom for 
 
 (o) Oateward'a ease, 6 Co. 6Qa. Grim- {f) Foiston v. Crouikroode, 4 Co. 369. 
 stead V. Mm-hw, 4 T. K. 7X9. Eeifdon & Smith's case, 13 Co. 67. 
 
 (g) Bogers v. Brenton, 10 Q. B. 26. 
 
104' CUSTOMARY EASEMENTS. [CHAP. HI. 
 
 copyholders to take all the timber, or trees (r), or all the minerals in 
 their own copyholds, and a custom to take clay. It appears to us, 
 that the cases of profits a prendre, or easements on the waste of the 
 lord, or in alieiio solo, have no application to the present question. 
 A copyholder may, hy custom, not only have a possessory, but a 
 proprietary, right in the trees and minerals in his own copyhold 
 tenement. In the case of minerals, the taking them is, in effect, a 
 taking of a portion of the corpus of the copyhold tenement. There 
 appears to be no doubt but that- a copyholder of inheritance may 
 not only, by custom, work old mines already opened, but that he 
 may also, by custom, dig within his tenement for new ones, and, if 
 successful, work' them " (s).' And the right may exist, in its most 
 extensive form, to sell the produce for profit, or in a more restricted 
 form to use the coal, &c., for their own private purposes ovlyif). 
 
 But a custom claimed by the lord of a manor, or his tenants, to 
 dig coal-pits in the enclosed freehold lands of the manor, when and 
 as often as they pleased ; to lay their coals, when got, on any part 
 of the lands of the customary tenants, near to the coal-pits, at any 
 time of the year they please, and to let them lie on such lands as 
 long as they please, is uncertain and unreasonable, and therefore 
 void, for it might deprive the tenant of the whole benefit of his 
 land (m). 
 
 A claim on the part of the lord of a manor, founded on the 
 custom of the manor, of an unlimited and unrestricted right to en- 
 close and confer in severalty upon any person, from time to time, 
 such portions of the waste as he in his discretion may think fit, 
 cannot be supported, as it is utterly inconsistent with the existence 
 of any right of common, for the lord might enclose the whole of 
 the waste, and so annihilate the rights of the commoners. But the 
 lord has concurrent rights with the commoUers. He has himself a 
 right, unless excluded by the custom, to stock the common, and to 
 every benefit to be derived from the soil, not inconsistent' with the 
 rights of the commoners. And when it is ascertained that there is 
 more common than is necessary for the cattle which the commoners 
 are entitled to turn on, the lord may take it for his own purposes, 
 and he may then enclose, leaving sufficiency of common for the 
 commoners (v). 
 
 (r) See Blewett v. Jenkins, 12 C. B., £lacheU v. Bradley, 1 B. & S. 140 j 31 
 
 N ■ S. 16. Law -3., Q. B. 65. But see, per L. C. & 
 
 (s) Salisbwry (Mwrquis of) t. Gladstone, Lord Chelmsford, in WalceMd v. Dvke of 
 
 6 H. & N. 129 ; 80 Law J., Exoh. 8 ; 34 Bucdeugh, h. E., 4 Eng. & Ir. App. 377. 
 
 /;id., C. P. 222 (d«6. LordWensleydale). And a grant to that effect would be 
 
 See Lmgwood v. Oyde, L. E., 2 C. P. 72. good; S. C. and Sowbothcm v. Wilson, 
 
 (t) PoHlmd {Duke of) v. £iU, L. E., 2 ante, p. 63. 
 ■^S" p*- ^^^- ' (v) The onus of proving this lies on 
 
 ,(«) Broadbent v. Wilhs, Willes, 863. the lord. Belts r. Thompson, L. B,, 6 
 
 HiUon V. Ea^rl OramiUe, 5 Q. B. 726. Ch. App, 732. 
 
SECT. 1.] EIGHTS OF COMMON, 105 
 
 Where fences are wrongfully erected upon, land, subject to a 
 right of common, the commoner in exercising his right is not 
 restricted to pulling down so much of the fence as it may be neces- 
 sary for him to remove in order to enter upon the common, but 
 he may remove the whole of the fences, so as to restore to himself 
 the full and unrestricted exercise of his right (w). He may also sue 
 a railway company for disturbance, if they have made a railway 
 over the common without making him compensation for his rights 
 under the Lands Clauses Act, although they have compensated the 
 lord of the manor and taken a conveyance of the soil from him (x). 
 
 A right of common is either appendant, appurtenant, or in gross. 
 When' it is appendant or appurtenant to a messuage or lands, it 
 passes, as we have seen, by a grant of the messuage or land, to the 
 successive owners and occupiers thereof (y). 
 
 ■ Common appeTidant is a right annexed to arable land of depastur- 
 ing on the lord's waste beasts that serve the plough, such as horses 
 and oxen, or which manure the land, such as kine and sheep. 
 " The reason for common appendant," observes Willes, C. J., 
 " appears to be this, that as the tenant would necessarily have 
 occasion for cattle not only to plough, but likewise to manure his 
 own land, he must have some place to keep such cattle in whilst 
 the com is growing on his own arable land, and therefore of com- 
 mon right, if the lord had any waste, he Inight put his cattle there 
 when they could not go on his own arable land. This right is so 
 necessarily incident to the land, that it cannot be severed there- 
 from ; and therefore if the land be divided never so often, every 
 little pai'cel is entitled to common appendant. But the tenant can 
 only have the right of common for sucK cattle as are levant and 
 couchant on his estate ; that is, for such and so many as he has oc- 
 casion for to plough and manure his land, in proportion to the 
 (quantity thereof. And it is plain that he cannot have the right for 
 cattle which he borrows, unless he make use of them all the' year 
 to plough or manure his land"" (2). Although this kind of common 
 is regularly appendant only to arable land, yet it may be claimed 
 a^ appendant to a manor or farm containing pasture, meadow, and 
 wood ; for it shall be presumed to have been all originally arable 
 land, though. afterwards converted into meadow, pasture, &c. {a). 
 
 Common appurtenant is a right, derived from the possession or 
 occupation of land, of depasturing a limited number of beasts upon 
 the lord's waste, or upon the unenclosed land of an adjoining pro- 
 prietor, and is claimable by grant or by prescription (6). The right 
 
 (mi) Arhit v. EUit, 7 B. & 0. 346. (z) Bennett t. Reeee, Willes, 231 ; Bac. 
 
 (a) Stomham v. Lond. & Brighton Rwy. Abr. Common A. 1. 
 
 L. K., 7 Q. B. 1. (a) Bao. Abr. Common A. 1. 
 
 (y) Sacheverell y. Porter, 2 Roll. Abr. (ft) Coivlarn'r. Slack, 15 East, 107. 
 60, pi. 4. 
 
106 MANOEIAL CUSTOMS. [OHAP. IH. 
 
 is limited to beasts levant and couchantupon the land to wHcli the 
 right is appurtenant, so that a claim to a right of common appurte- 
 nant " sans number " is bad. The number of cattle vhich can be 
 "levant and couchant" upon the estate is the number which the 
 produce of the land is capable of maintaining throughout the 
 winter, if cultivated for that purpose ; it is not necessary that they 
 should, in fact, have been actually so maintained, if the land, pro- 
 perly cultivated for that purpose, could have maintained them (o)i 
 " If my land to which I claim common belonging can yield me 
 stover to find a hundred cattle in winter, then shall I have common 
 in summer for a hundred cattle in the land out of which I claim 
 common, and so for more or fewer proportionably " (d). If the 
 commoner has turned more cattle upon the common than the winter 
 eatage of his ancient tenement, together with the hay and other 
 produce obtained from it during the summer, is capable of maintaia- 
 ing, he has exceeded his legal rights, and is liable to an action (e). 
 
 Common of shack, observes Bayley, J., " is a right of persons 
 occupying arable land unenclosed to turn out their cattle at certaia 
 seasons to feed promiscuously over the whole open iield. If there 
 were no common right of this sort, every man would be bound to 
 keep his cattle upon his own land, which would be productive of 
 great inconvenience, and in many instances would be impossible. 
 In order to obviate this, every man's cattle are allowed the full 
 range of the whole field ; but the number which each man is at 
 liberty to turn out is limited to that which the land of each in- 
 dividual is capable 'of supporting" (/). 
 
 Bight of common pu/p cause de mcinage. — To establish a right of 
 common per cause de vicinage, it must be proved that the inhabitants 
 have usually inter-commonedwith one another ; the beasts of the one 
 straying into the other's fields without any molestation on either side. 
 There must not only be absence of fence, but mutual acquiescence, 
 and an immemorial allowance of the straying of the cattle (g). 
 
 Common of i/arbary, or the liberty or privilege of cutting and 
 canying away turf, is appendant to an ancient dwelling-house, and 
 the right is limited to such a quantity as is sufficient to bum in the 
 ancient chimneys and fire-places of the house (Ji) ; consequently a 
 claim to cut and carry away turf for sale {%), or to make grass-plots 
 or paths, cannot be supported (k). 
 
 (c) Om-r Y. Lambert, 34 L, J., Exch. {f} Cheesnumv. lI(t/rdham,l'B.&Ald, 
 
 66 ; L. E., 1 Exoh. 168. If the land had 711. Sw Miles Corbet's case, 7 Bep. 67. 
 been built upon or turned into a reservoir, (g) Clarke v. Tinker, 10 Q. B. 618. 
 
 gucere. S. C. (A) 6 Co. 36b, 37a. Deam, &c. of Ely, 
 
 {d) Smith V. BansaU, Golds. 117. Cok v. Wa/rren, 2 Atk. 189. 
 T. Foxman, Noy's B. 30. Cheeaman v. (i) Valentine x. PeiiTvy, N'oy's R. 145. 
 
 Hardham, 1 B. & Aid. 711. See amte, pp. 103, 104. 
 
 (e) WUtekck v. HutcMnson, 2 Mood. Qc) WUson t. WiUes, 7 East, 121,. 
 
 & Bob. 205. 
 
SECT. 1.] , EIGHTS OF COMMON. 107 
 
 Cow-mon of estovers, or the liberty or privilege of cnttiag down 
 and carrying away trees, or loppings of trees, shrubs, and underwood, 
 in another man's woods, coppices, or forests, for burning, building, 
 or enclosing, is also appendant to an ancient dwelliag-house, and 
 is claimable by grant or by prescription, except in the case of copy- 
 holders, who may, it seems, claim by custom (Z). Consequently a 
 claim to cut down and carry away trees for sale cannot be claimed 
 as common appendant (m). 
 
 The nature and extent of the right, and the periods of the year 
 for the exercise and enjoyment of it, are to a great extent defined 
 and controlled by manorial or local custom and usage. According 
 to Bracton, the right must be exercised with reason and modera- 
 tion, according to the size of the wood or waste- in which the right 
 is to be exercised, and the size of the tenement to which it is 
 annexed (w). The estovers must be expended within or upon the 
 house, and cannot lawfully be sold or exchanged; nor can the 
 right be enlarged or extended. A tenant having a right to estovers 
 for the repair of his dwelling-house and farm-buildings, cannot 
 " enlarge his house with the timber, nor board the sides of a barn 
 which had muddle walls or the like before " (o). If a man has 
 estovers belonging to his house, and he builds new chimneys where 
 there were no chimneys before, he cannot use the estovers in the 
 new chimneys (jj). But if he sets up a new chimney where an old 
 one was before, he shall have his estovers for the new chimney (§■). 
 
 " If a man be seised of a house in right of his wife, and another 
 grants to the husband and his heirs to have sufficient estovers to 
 bTjrn in tjie same house, in that case the estovers are appurtenant 
 to the house, and shall descend to the issue of the husband and 
 wife. So, if one have a house of the part of his mother, and one 
 grants to him that he and his heirs shall have competent house- 
 bote to be burnt in the same house, this is appurtenant to the 
 house ; and although it be a new purchase, it shall go with the 
 house to the heir of the part of the mother " (r). 
 
 " When copyholders for life, acco:tding to the custom, have used 
 to have common in the waste of the lord of the manor, or estovers 
 in his woods, or any other profit at prendre in any part of the manor, 
 and afterwaxds the lord aliens the wastes or woods to another in 
 fee, and afterwards grants certain copyhold houses and lands for 
 lives, such grantees shall have common of pasture, or common of 
 estovers, &c., notwithstanding the severance, for the title of the 
 copyholder is paramount the severance ; and the custom unites the 
 
 (V) Bract, fol. 231. Selly v. JRoUnson, ' (») Bract, fol. 23T. 
 2 T. R. 768. See WiUingaU-v. MaiOcmd, (o) Ewrl ofPembroJe^s case, Clayfc. 47. 
 ante, p. 102. (P) iMUreWs case, 4 Co. 87a. 
 
 (m) BaMey v. Stevens, 31 Law J., C. P. (?) Costwrd v. Wingfidd, 2 Leon. 44. 
 
 226 ; 12 0. B., N. S. 113. W Sym's case, 8 Co. 54a. 
 
108 MANORIAL CUSTOMS. [CHAP. IIi; 
 
 common or estovers, -which are but accessaries or incidents, as long 
 as the house and lands, being principal, are maintained by the 
 custom ; which customary appurtenances are not appertaining to 
 the estate of the lord, for he is the owner of the freehold and 
 inheritance of all the manor, but they are appertaining to the 
 customary estate of the copyholder, after the grant made imto him; 
 which profit k prendre, being due by custom to the copyhold tene- 
 ment (notwithstanding the feoffment or fine, &c., of the waste or 
 woods made by the lord), remains, and is preserved by the custom, 
 which is, as hath been said, the title of the copyholder, and is para- 
 mount to the severance ; but if the copyholder had derived his 
 interest from the estate of the lord, then clearly, by the feoffment, 
 fine, &c;, of the lord, all those who after claim by him shall be 
 -barred of any profit a prendre in the same waste or woods" (s). 
 
 Common in gross is a right of common of pasture not apper- 
 taining to any land, and is claimable by grant or prescription {t). In 
 prescribing, therefore, for common in gross, " one does not lay seizin 
 of any land, but says that he and his ancestors, whose heir he is, &c., 
 from time whereof, &c., have had common in the place where, &c., 
 for all their cattle, without relation to any land, and without saying 
 levant and couchant, because there is no land on which they can 
 be levant and couchant, or to which the common can be appurtenant, 
 wherefore a prescription for common in gross without number is 
 good" (u). Common in gross being a personal privilege, and not a 
 right appendant or appurtenant to land, cannot be granted over so 
 as to burthen the land for aU time in the hands of subsequent owners 
 and occupiers of the land over which the right has been granted (a). 
 
 If a man claim by prescription any manner of common in 
 another man's land, and that the owner of the land shall be 
 excluded to have pasture, estovers, or the like, this is a prescription 
 or custom against the law to exclude the owner of the soil, for it is 
 against the nature of this word common, But a man may prescribe 
 or allege a custom to have and enjoy solam vesturam terrcg,. from 
 such a day till such a day, and hereby the owner of the soil shall 
 be excluded for the time to pasture or feed there. So, a man may 
 prescribe to have separalem pischariam in such a water, and the 
 owner of the soil shall not fish there (y). The customary tenants 
 in whom these exclusive rights, exerciseable during certain por- 
 tions of the year, are vested, have merely a profit a prendre in alieno 
 solo, and no estate in the soil itself (2), but the interest is capable of 
 
 (s) Swayne's case, 8 Eep. G3b. Srovm's (x) Ante, p. 96. Treby, C. J., 
 
 CMC, i Co. 21b. Benson v. Chester, 8 v. WUdirum., I lA-Tiajm. iOI . 
 
 T. R. 401. (2,) Co. Litt. 122b, North v. Cose, 1 Lev. 
 
 (t) Co. Litt. 122a.- 253. 
 
 (it) Mellor Vi Spateman, 1 Wms. Saund. • (z) Rex v. Churchill, 4 B. & C. 750. 
 346. 
 
SECT. l.J RIGHTS OF PASTURAGE — CATTLE GATES, ETC. 109 
 
 transfer by deed of assignment. " Instances of sole pasturage are 
 to be found on the South Downs, in Sussex, and they are frequently 
 transferred in gross ; it is the same with the cattle-gates in the 
 north of England " (a). 
 
 Rig/its of sole and several pasturage. — Cow-grasses and cattle-gates. 
 — In some manors, the customary tenants of the customary tene- 
 ments of the manor have a right to the sole and several pasturage 
 for the whole year over the moors and downs and waste places of 
 the manor, to the entire exclusion of the lord of the manor, and 
 may by deed license strangers to put in their cattle (6), and sell and 
 convey away their interest to another. These rights of sole and 
 several pasturage are called cattle-gates and cow-grasses, and are 
 customary estates of inheritance, transferable by deed. The owners 
 of them have no right of property in the soil. They are held of 
 the lord of the manor, according to the custom of the manor, as 
 customary estates of inheritance, by payment of fine and cus- 
 tomary rents, and under dues, duties, suits and services, regulated 
 by the custom. They are transferred by customary deeds, followed 
 by admittance at the next lord's court, or out of court by the 
 steward of the manor, and a fine is payable on admittance. These 
 cattle-gates, therefore, are copyhold tenements (c). 
 
 Bights of tinbounders to search for tin in Cornwall are founded 
 on custom. The right seems to have originated in each instance in 
 a virtual contract, as in the case of rights of common. When the 
 lord, or owper of waste uninclosed and uncultivated land, would 
 not search for and work tin himself, or devote his waste exclusively 
 to other purposes by inclosure, he has permitted the tinner to enter 
 on the waste and work for and get tin, on condition of the render 
 to him of a certain portion, fixed by custom, of the produce of the 
 tin mine. Here, as in the instance of a right of common, the 
 thing is in its nature to be claimed by prescription only ; but they 
 who have it, and ought to have it, injustice, cannot prescribe for it; 
 from necessity, therefore, that. the right may not .be defeated, they 
 are allowed to claim it by custom (d). If the tinbounders abandon 
 the mine, and the owner retakes possession, he will be entitled to 
 any easements, such as a right to the flow of water, to which the 
 tinbounders had acquired a title by prescription, for although 
 there is no pri-vity of estate between the tinbounders and the 
 owner, yet it must be presumed that the right to the use of the 
 water had been originally acquired by arrangement with the owner 
 as well as the tinbounders (e). 
 
 (a) Ld. Abinger, Welcome v. Upton, 6 935. And see Eobinson v. Wray, L. E., 
 
 M & W 536. ••• *-'■ ^- ^^''• 
 
 '(I) SosMns T. Robim, 2 Wins.- Saund. (d) Sogers v. JBrenton, 10 Q. B. 26. 
 
 gog (e) Ivimey v, Spgfier, L. E., 1 Oh. App. 
 
 (c) Migg T, Ea/rl Lonsdale, 1 H. & N, 3^6, 
 
110 EEPAIR OF SEA-WALLS. [CHAP. III. 
 
 The lord, hy, his grant of common, gives every thing accessorial to 
 the enjoyment of the right, sueli as ingress, egress, &c., and thereby 
 authorizes the commoner to remove every obstruction to his cattle 
 graziag the grass there. But the lord still remains owner of the 
 soil, and a commoner who has a mere right of common of pasture 
 has no power to meddle with the soil, and cannot cut even a trench 
 or a ditch to let the water off the common, without first obtaining 
 the licence of the lord (/). And if the lord chooses to encourage 
 the growth of beasts of warren, such as hares and rabbits, upon the 
 common, and to make rabbit-burrows, the commoner has no right 
 to destroy either the hares, the rabbits, or the burrows. If they 
 increase so as to destroy the herbage and deprive the commoners of 
 the pasture, this may be a surcharge of the common by the lord ; 
 but the commoner must pursue the appropriate remedy by action, 
 and cannot lawfully kill the conies, for, as long as they are in the 
 lord's own land, the lord hath property in them, but, when they go 
 out, he hath no longer property in them (^). 
 
 Inconsistent HgMs of common. — Where there are two distinct 
 rights of common claimed by different parties, which encroach on 
 each other in the enjoyment of them, the question is, which of the 
 two rights is subservient to the other ? It may be either the lord's 
 right, which is subservient to the commoners', or the commoners', 
 which is subservient to the lord's. In general, one would say that 
 the lord's is the superior right, because the property of the soil is in 
 him ; but if the custom established by evidence show that it is 
 subservient to the commoners', then he cannot use the common 
 beyond that extent ; otherwise he subjects himself to an action f9r 
 the excess Qi). 
 
 Of the servitude of maintaining and repairing sea-walls, ditches, 
 and slidaes. — Every person who accepts a grant'of land from the 
 crown, accompanied by a command or direction to keep up, repair, 
 and maintain certain buildings, sea-walls, ditches, and sluices, 
 takes the land subject to the servitude imposed thereon ; and if 
 any private individual sustains a private and peculiar injury from 
 the non-repair of the sea-walls, &c., he is entitled to an action 
 against the grantee or his assigns, who have failed to fulfil the duty 
 imposed upon him or them {i). AU persons enjoying the benefit 
 of a sea-wall are liable at common law to repair and maintain it, in 
 the absence of any custom or contract (/). Where, therefore, a 
 man buys land below the level of high water, which but for the 
 
 (/) Coomr V. MarshaU, 1 Burr. 226 ; (/i) Buller, J., Bateson T. Or0m, 5 T. 
 
 1 Koll. Afo, 406. E. 416. 
 
 ig) M<Klesden v. OrysieU, do. Jac. 195. (i) Heriki v. Mayor of Lyme, 5 Bing. 
 
 Bellew V. Langdon, Cro. Eliz. i16. ' Cm- 107. 
 
 rW, V. Pack, 2 Bulstr. 115. Hoddeschn (j) Hex v. Commissioners of Sewers of 
 
 V. GresU, Yely. 104. Essex, 1 B. & C. 477. 
 
SECT. l.J FISHING, OR BATHING, IN THE SEA OR EIVERS. 1.11 
 
 ■wall ■would be covered by the sea, he is put upon inquiry as to 
 whether he is or is not bound to repair, and cajanot be allowed to 
 say he had no notice (k). 
 
 Of customary rights of fishing, and driving stakes for nets in the 
 sea-shore (I). — Where the public at large had from time immemorial 
 fished in a private non-navigable river, and the defendant claimed 
 a right to fish there as one of thp public, it was held, that no 
 such right could be acquired by user, however long continued (m) ; 
 but in a navigable river, the soil of which belongs to the crown, 
 the public primd facie have as of common right a right of fishing, 
 and it falls upon a person who disputes this right to show that he 
 has a right of several fishery (n). There may be a qualified right 
 of fishery in a non- navigable river. Thus, the riparian owners 
 on a stream may grant to one of them to have a weir for the 
 purpose of taking fish, at such times as the whole volume of water 
 is not wanted for the purpose of a mill ; and such grant, of which 
 enjoyment is evidence, will be good (o). In the case of two pro- 
 prietors on opposite banks of a stream, each is entitled to fish from 
 his own bank to the centre of the stream (p). 
 
 The land between ordiuary high-water mark and low-water 
 mark belongs to the crown, in the absence of proof of a grant of 
 such land to a lord of a manor or to a private person (^post, ch. 6, 
 s. 2) ; but various customary and prescriptive rights and .privileges 
 over the sea-shore have; grown up and been acquired by the 
 public, and by communities and private individuals, by reason of 
 immemorial usage and enjoyment. Where an action of trespass 
 was brought against a defendant for digging in the plaintiff's land, 
 and the defendant pleaded that the locus in quo was four acres of 
 land adjoining the sea, and that all the men of Kent, from time 
 immemorial, have used when they have fished in the sea to dig in 
 the land adjoiniag, and pitch stakes for hanging their nets to dry, 
 it was held that such a custom, confined to the sea-shore, might be 
 good; for, observes Clarke, C. J., "If I have land adjoining the 
 sea, so that the sea ebbs and flows on my land, when it flows 
 every one may fish in the water which has flowed on my land, for 
 then it is parcel of the sea, and in the sea every one may fish of 
 common right; and when the sea has ebbed, then in this land 
 which was flowed before, peradventure he may justify his digging, 
 for this land is of no great profit " (q). 
 
 (i) Morland v. Cook, L. K., 6 Eq. Ca. (o) BoUe t. Whyte, L. R., 3 Q. B. 286. 
 
 252. (p) Zetland (Earl of) v. Glover Incor- 
 
 (I) Mia oyster and mussel fisheries, poration o/ Perth, li. '&., 2 So. App. 70.. 
 
 see 31 & 32 Vi(A. c, 46, part 3, ss. 27—56; If an island springs up in the channel 
 
 32 & 33 Vict. 0. 31. of the stream, see S. C. 
 (ot) Hudson V. M'Rae, 33 L. J., M. C. 65. (q) 8 Idw. 4, 1 9, Bro. Abr. Customs, 
 
 (») Jteg. V. Siimaon, 32 Law J., M. C. 46, 
 208. 
 
112 TITLE BY PEESCEIPTION. [CHAP. m. 
 
 Customary arid prescriptive rights of lathing on the sea-sTkore. — It 
 has been held that there is no general common law right of 
 bathing in the sea, and passing over every part of the shore for 
 that purpose, independently of usage and custom (r) ; but such a 
 right may exist by prescription or custom, and may be gained and 
 retained by the owners and occupiers of houses on the sea-coast, or 
 by the inhabitants of any village, parish, or district, so long as it 
 can be exercised without creating any public nuisance (s). The 
 existence and the extent of the right are to be collected in this, as i 
 in other instances of customary and prescriptive rights, from the 
 manner in which the particular portions of the sea-shore through- 
 out the kingdom have from time immemorial been used (t). " The 
 right of bathing in the sea," observes Best, J. (w), " is as beneficial 
 to the public as the right of fishing, and unless I felt myself bound 
 by an authority as strong and clear as an Act of Parliament, I would 
 hold, on principles of public policy — I might say public necessity — 
 that the interruption of free access to the sea is a public nuisance. 
 In the first ages of all countries the sea and its shores were left 
 open to public use. In all countries it has been matter of just 
 complaint, that individuals have encroached on the rights of the 
 people. .In England our ancestors put the public rights in rivers 
 under the safeguard of Magna Charta. If the principle of exclu- 
 sive appropriation be extended so far as to touch the right of walk- 
 ing over the barren sands of the sea-shore, it wiQ take from the 
 people what is essential-to their welfare, whilst it will give to- indi- 
 viduals only the hateful privilege of vexing their neighbours " (x). 
 
 Title hy prescription is a title acquired by use and time, and 
 allowed by law ; as when a man claims to have a thing because he 
 and his ancestors, or they whose estate he hath, have had or used 
 it from time immemorial (y), and immemorial enjoyment is pre- 
 sumed from proof going back to the extent of living memory (2). 
 All prescription must be either in a man and his ancestors, or in a 
 man and those whose estate he hath, which last is called prescrib- 
 ing in a que estate. If a man prescribes in a que estate (that is, in 
 himself and those whose estate he holds), nothing is claimable by 
 this prescription but such things as are incident, appendant, or 
 appurtenant to lands; but if he prescribes in himself and his ances- 
 tors, he may prescribe for things in gross. 
 
 A prescription must always be laid in him that is tenant of the 
 fee. A tenant for life, for years, at will, or a copyholder, cannot 
 
 (r) Bhmddl v. OatteraM, 5 B. & Aid. (x) Blundell v. CatteraU, 5 B. & Aid. 
 
 268. See Hall on SeaShores, p. 181, etseq. 287; ante, pp. 36, 37. 
 
 (s) See Rex t. Crunden, 2 Campb. 89. (y) Praescriptio est titulus ex usu et 
 
 (t) See Mace v. Philcox, 33 L. J., C. P. tempore substantiam capiene ab authori- 
 
 124. tate legis, Co. Litt. 113a, 113b. Mis v. 
 
 (m) In BbmdeU v. CatteraU, differing, Mayor, <bc., of Bridgnorth, ante, p, 13. 
 
 however, from the rest of the Court. (s) Pattegon, J., 8 Q. B. 588, 
 
SECT. 1.] TITLE BY PKESCEIPTION — PEWS. 113 
 
 prescribe, by reason of th,e insufficiency of his estate ; for as pre- 
 scription is usage beyond time of memory, those whose estates 
 commenced within the remembrance of man cannot prescribe ; and 
 therefore the copyholder must prescribe under cover of his lord's 
 estate, and the tenant for life under cover of the tenant in fee 
 simple. 
 
 Estates gained by prescription are not descendible to the heirs- 
 general, but only to the blood of that line of ancestors in whom 
 the party prescribes. But if he prescribes in a que estate, it will 
 follow the nature of that estate in which the prescription is laid, 
 and be inheritable in the same manner, whether that were acquired 
 by descent or purchase {a). 
 
 Nothing but incorporeal hereditaments can be claimed by 
 prescription, such as rights of way, rights of common, &c. No 
 prescription can give a title to lands, and other corporeal substances, 
 of which more certain evidence may be had. Thus a grant of a 
 license to get coal or minerals, which does not oust the grantor of 
 his right to dig for coal and minerals in the same land, is, as we 
 have seen, a mere profit k prendre, or incorporeal right lying in 
 grant (&), and may consequently be claimed by prescription ; but a 
 claim to take all the coal, to the exclusion of any right in the owner 
 of the soil to get it, is a claim to a part of the soil itself, and cannot 
 be claimed by prescription (c). 
 
 A prescription by immemorial usage can in general only be for 
 things which may be created by grant, for the law allows prescrip- 
 tions only to supply the loss of a grant. Ancient grants must 
 often be lost ; and it would be hard that no title could be made to 
 things lying in grant, but by showing the grant. Upon immemo- 
 rial usage, therefore, the law will presume a grant, and allow such 
 usage as evidence of a good title. Therefore, for such things as 
 cannot be created at this day by any manner of grant, or reserva- 
 tion, or deed, a prescription is not good {d). 
 
 A prescri]ptive right to a pew in a chwch, as appurtenant to an 
 ancient messuage, may be established by immemorial use and 
 enjoyment, from which a faculty is presumed, and there is no 
 necessity that the house should be within the parish (e). If, there- 
 fore, the plaintiff claims a prescriptive right, and shows the com- 
 mencement of it in very modern times, his claim will fail (/). 
 "Where a pew in a chancel belonged to a person in respect to the 
 ownership of an ancient house, it was held that the tenant of the 
 
 (a) 2 Bl. Comm. 64. EoU. Abr. Pbe- (d) Potter v. North, 1 Ventr. 387 j 3 
 soKiPTiofr B. Cruise's Digest, tit. 31, ch. 1. Att.-Gen. 
 
 (b) Chetham v. Williamson, Doe v. Wood, t. Matthias, 4 K. & J. 592 ; 27 Law J. 
 ante, p. 100. Ch. 761. 
 
 (c) Wilkinson v. Proud, 11 M. & W. 33. (e) Loudey v. Hayviard, 1 Y. & J. 683. 
 Clayton v. Corhy, ante, p. 81. (/) Ch'iffih v. Matthews, 5 T. E. 296, 
 
 J 
 
114 PRESCRIPTIVE EIGHTS.. ' [CHAP. III. 
 
 owner obtained a sufficient title by occupation to justify an action 
 in the ecclesiastical court for perturbation of a pew (g). 
 
 Pres(yriptiv6 rights founded on the presumption of a grant — Pre- 
 sumption of a grant from long-continued uninterrupted user and 
 enjoyment as of right. — To raise a presumption of a grant of an 
 easement or profit from long-continued uninterrupted enjoyment of 
 the privilege, the enjoyment must have been open and notorious, 
 and exercised as a matter of right, and not of grace and favour {ante, 
 pp. 80, 81). Where, therefore, the enjoyment can be satisfactorily 
 accounted for, and is consistent with there having been no grant or 
 conveyance, there is no ground for presuming one. In the case of 
 the continued enjoyment by one man of a right of common, or 
 profit k prendre in the land of another, and in every user of a way, 
 the original enjoyment must have been unlawful, unless the privilege 
 had been exercised with the sanction and authority of the owner of 
 the soil, and can only be accounted for on the supposition that' a 
 grant had been made ; and when the enjoyment had been long 
 continued, without interruption, a grant was presumed ; but when 
 the enjoyment of the privilege is accounted for, and is consistent 
 with the fact of there having been no grant, the presumption does 
 not arise (K). 
 
 When the property is of such a nature that it cannot be easily 
 protected against intrasion, and, if it could, it would not be worth 
 the trouble, proof must be given of constant uninterrupted user and 
 enjoyment of the privilege, with the knowledge and acquiescence of 
 the party interested in resisting intruders, in order to raise a pre- 
 sumption of a grant (z). According to the ancient law of prescrip- 
 tion, the enjoyment was not uninterrupted, wherever it was had 
 and exercised in spite of the remonstrance or prohibition of the 
 owner of the fee Qe). And whenever there was evidence to show 
 that the user and enjoyment were had and exercised by permission, 
 and grace and favour, there was no user and enjoyment as of right, 
 and no prescriptive title could be gained thereby, however notorious 
 and long continued might have been the user and enjoyment {V). 
 
 The general principle with regard to prescriptive rights founded 
 on the presumption of a grant is, that a grant will not be presumed 
 against an ignorant man, and, therefore, if an easement or profit h. 
 prendre has been enjoyed on land let on lease, the, landlord is not to 
 
 {g) Parker V. Leach, Ij. E. 1 P. C. Ca. tionem et impetrationem diligentem et 
 
 yi\ ff^i'"**'™- ^ sect. 2. per talem interruptionem nunquam ac- 
 
 (A) Doe V. Beed, 5 B. & Aid. 236. quirit possidena ex tempore liberum tene- 
 
 Uvett T. Wilson, 3 Bing. 118. Boyle v. mentiim."— Bract, lib. 4, M. 51, cap. "" 
 
 /■\-/ ? ® "S^ autem precaria fuerit et de 
 
 nC 1 fj*-'^^^- ''■ Ohambirs, 5 Jur. N. S. gratis,,, quse tempestive revocari poesit 
 
 Ch. 145 ; 4 De G. Mc. & (i. 206. Ait.- vel intempeetive, ex longo tempore non 
 
 /?■/■ i"""'' '^^ ^- '''• ■^^''^- 2^^- acquiritur jus."— Bract, lib. 4, fol. 221. 
 
 (A] Interrumpi potent per denuntia- Ante, pp. 80, 81, 
 
SECT. l.J PRBSCEIPTION ACT. 115 
 
 be prejudiced in his rights, and the inheritance burthened through 
 the laches or acquiescence of the tenants in matters affecting the 
 inheritance, without the knowledge, and privity, and sanction of the 
 landlord (m). " The foundation," observes Lord EUenborough, " of 
 presuming a grant against any party is, that the exercise of the 
 adverse right on which such presumption is founded was against 
 the party capable of making the grant, and that cannot be presumed 
 against him, unless there were some probable means of his knowing 
 what was done against him " (n). But when the user and enjoyment 
 are had and exercised under circumstances of notoriety, a jury may 
 infer the landlord's knowledge and acquiescence in such user and 
 enjoyment. Thus, where the lessees of a fishery had for sixty-four 
 years been in the constant habit of landing their nets openly on a 
 river-bank in the occupation of a tenant, aud had from time to time 
 sloped and pared the bank, and exercised various other acts of 
 ownership upon the land, it was held that a jury was justified in 
 inferring that the landlord knew of and acquiesced in the enjoyment 
 of the easement (o). And where there had been an uninterrupted 
 enjoyment for thirty-eight years of the free access of light and air 
 to windows over and across land held on lease,, it was held that the 
 landlord's knowledge of and acquiescence in the enjoyment of the 
 visible and apparent easement was fairly to be presumed, in the 
 absence of evidence to the contrary (p). 
 
 If the user and enjoyment have been had and exercised with 
 the sufferance and permission of the tenant, but in spite of the 
 remonstrance, protest, or objection of the owner of the fee, no 
 right can be gained by such an enjoyment, for there can be no 
 presumption of a grant under such circumstances. 
 
 Proof of immemorial enjoyment of the privilege claimed was, 
 in ancient times, essential to the legal presumption of a grant ; but 
 for a long series of years before the passing of the Prescription Act, 
 judges were in the habit, for the furtherance of justice and the sake 
 of peace, to leave it to juries to presume an ancient grant of an 
 easement or profit a prendre from an interrupted enjoyment of the 
 privilege as of right for twenty years, adopting that period by 
 analogy to the Statute of Limitations. 
 
 Of the Frescripfion Act. — The uninterrupted enjoyment for 
 twenty years of an incorporeal right, from which juries were 
 allowed to pre'sume an ancient grant, was not a bar or title in 
 
 (m) See the ohservationR of Lord Wyn- tione ballivornra, valere non debet."— 
 
 ford, Benest v. Pinion, 1 Knapp, P. C. 70. Bract, lib. 4, fol. 221 ; lib. 2, fol. 52. 
 
 Dames v. Stephens, 7 0. & P. 570. Deeble But see per Hatherley, C, Ladyman \. 
 
 V. Linekam, 12 Ir. C. L. R, 16. "Si Grave,!.. K., 6 Oh. App. 763. 
 autem fuerit seisina clandestina, scilicet (n) Daniel t. North, 11 East, 374. 
 
 in absentia dominorum vel illis igno- Muncorn v. Cooper, 5 B. & C. 701. 
 rantibus, et,si soirent, essent prohibitnri, (o) Gray t. Bond, 5 Moore, 634. 
 
 licet hoc fiat de consensu vel dissimula- (p) Cross v, Lewis, 2 B, & C. 686. 
 
 I 2 
 
116 PEESCEIPXrVE EIGHTS. [CHAP. III. 
 
 itself; for if the commencemeut of the enjoyment within what was 
 C9,lled the period of legal memory could be shown, the presumption 
 of an ancient grant in times long since passed away was rebutted, 
 and the right defeated. To remedy this inconvenience, and make 
 that period of enjoyment of an incorporeal right a bar or title of 
 itself, wliich was so before only by the intervention and inference 
 of a jury, the statute 2 & 3 Wm. 4, c. 71, was passed in the year 
 1832, for shortening the time of prescription in certain cases. 
 
 This statute, commonly called " The Prescription Act," recites 
 (s. 1) that the expression " time immemorial, or time whereof the 
 memory of man runneth not to the contrary," was, by the law of 
 England, in many cases considered to include and denote the whole 
 period of time from the reign of King Eichard I., whereby the title 
 to matters that had been long enjoyed was sometimes defeated by 
 showing the commencement of such enjoyment, which was produc- 
 tive of injustice ; it is therefore enacted that no claim which may 
 be lawfully made at the common law by custom, prescription, or 
 grant to any eight of common, or other peofit or benefit, to he 
 taken or enjoyed from or upon any land, except such matters and 
 things as are therein specially provided for ; and except tithes, rent, 
 and services, shall, where such right, profit, or benefit has been 
 actually taken and enjoyed by any person claiming right thereto 
 without interruption for the full period of thirty years, be defeated 
 or destroyed by showing only that such right, profit, or benefit was 
 first taken and enjoyed within the time of legal memory, but that 
 such claim may be defeated in any other way by wliich the same 
 was then liable to be defeated; and when such right, profit, or 
 benefit has been so taken and enjoyed for the full period of sixty 
 years, the right thereto shall be deemed absolute and indefeasible, 
 unless it shall appear that the same was taken and enjoyed by 
 some consent or agreement expressly made or given for that purpose 
 by deed or writing. 
 
 By the same statute (s. 2), it is enacted that no claim which 
 may be lawfully made at common law, by custom, prescription, or 
 grant, to any way or other easement, or to any ivatercourse (q), or the 
 use of any water, to be enjoyed upon, over, or from any land or 
 water, when such way or other matter shall have been actually 
 enjoyed by any person claiming right thereto without interruption 
 for the fuU period of twenty years, shall be defeated or destroyed 
 by showing only that such way, water, or other matter was first 
 enjoyed at any time prior to such period of twenty years, but 
 nevertheless such claim, may be defeated in any other way by 
 which the same was then liable to be defeated ; and when such 
 
 _ (2) A claim to have water kept direrted section. Mason \. Shrewsbm-y cmd Here- 
 IS a claim to a watercourse wifchia the ford RaHmmj, ante, p. 64. 
 
SECT. l.J PEESCEIPTION ACT — 2 & 3 WM. IV. C. 71. 117 
 
 way or other matter shall have been so enjoyed, as aforesaid, for 
 the fuU period of fmty years, the right thereto shall be deemed 
 absolute and indefeasible, unless it shall appear that the same was 
 enjoyed by some consent or agreement by deed or writing. 
 
 Also (s. 3), that ■when the access and use of light to and for any 
 dwelling-house, workshop, or other building, shall have been 
 actually enjoyed therewith for the full' period of t-aenty years 
 without interruption, the right thereto shall be deemed absolute 
 and indefeasible, any local usage or custom to the contrary not- 
 withstanding (r), unless it shall appear that the same was enjoyed 
 by some covenant or agreement expressly made or^ given for that 
 purpose by deed or writing. 
 
 Each of the respective periods named in the Act is to be deemed 
 and taken to be the period next before some suit or action wherein 
 the claim or matter to which such period may relate shall be 
 brought in C[uestion (s), and no act or other matter is to be deemed 
 to be an interruption (s. 4), unless the same shall be submitted to 
 or acquiesced in for one year after the party interrupted shall have 
 had notice thereof, and of the person making or authorizing the 
 same to be made. 
 
 And (s. 5) that in all actions upon the case and other pleadings, 
 wherein the party might then by law allege his right generally, 
 without averring the existence of such right from time immemorial, 
 such general allegation shall be deemed sufi&cient ; and if the same 
 shall be denied, all and every the matters in the Act mentioned and 
 provided, which shall be applicable to the case, shall be admissible 
 in evidence to sustain or rebut such allegation ; and that in all 
 pleadings wherein, before the passing of the Act, it would have 
 been necessary to allege the right to have existed from time imme- 
 morial, it shall be sufficient to allege the enjoyment thereof as of 
 right, "by the occupiers of the tenements, in respect whereof the 
 same is claimed, for and during such of the periods mentioned in 
 the Act as may be applicable to the case, and without claiming in 
 the name or right of the owner of the fee. In the several cases 
 mentioned in and provided for by the Act, no presumption is to be 
 allowed or made (s. 6) in support of any claim, upon proof of the 
 exercise or enjoyment of the right or matter claimed, for any less 
 period of time or number of years. than for such period or number 
 mentioned in the Act as may be applicable to the case and the 
 nature of the claim. 
 
 The period during which a party capable of resisting the claim 
 is an infant, idiot, nan compos mentis, feme coverie, or ten9,nt for life, 
 
 (r) Salters' Co. v. Jay, 3 Q. B. 109, (s) Cooper V. Huhhuck, 12 C. B. N, S, 
 
 TruscoU V. Merchl. Taylors' Co., 11 Exch. 456. 
 855. 
 
118 PEESCKIPTION ACT— 2 & 3 WM. IV. C. 71. [CHAP. HI. ' 
 
 or during which any action or suit shall have been pending, and 
 which shall have been diligently prosecuted until abated by the 
 death of any party thereto, is to be excluded (s. 7) in the compu- 
 tation of the periods mentioned, except only ia cases where the 
 claim is thereby declared to be absolute and indefeasible. ■ 
 
 It is enacted also (s 8), that when any land or water upon, 
 over, or from which any right of way, or convenient watercourse 
 or use of water, shall have been enjoyed or derived, hath been 
 or shall be held under any term of life, or any term of years 
 exceeding three years from the granting thereof, the time of the 
 enjoyment of any such way, watercourse, or water, duriag the 
 continuance of such term, shall be excluded in the computation 
 of the said period of forty years, in case the claim shall, within 
 three years next after the determination of such term, be resisted 
 by the reversioner. 
 
 What profits or ien&fits may le claimed hy user and enjoyment 
 under the Prescription Act. — Easements and profits h, prendre cannot 
 be claimed by user and enjoyment under the Prescription Act 
 unless the benefit or profit has been used, exercised, and taken 
 for the more beneficial use and enjoyment of some neighbour- 
 ing tenement. Easements and profits in gross (ante, pp. 96, 97), 
 therefore, cannot be claimed by an occupier as such under the Act, 
 because the claim must be " by custom, prescription, or grant," and 
 it must be of such a nature as to be capable of being annexed to 
 land, as being accessorial to the beneficial use, occupation, and 
 enjoyment of landed property {t). A right, therefore, which can be 
 of no benefit to any tenement, such as a right to cut down, and 
 carry away, and sell trees or underwood growing on a neighbour's 
 land, or to search for and raise minerals, and carry them away and 
 dispose of them. Or a right to go upon land for recreation and 
 amusement, cannot be prescribed for under the statute {u). 
 
 To bring the right within the term easement in the second 
 section of the statute, it must be a right analogous to 'that of a 
 right of way, or a right of watercourse, and must be a right of 
 utUity'and benefit, and not of mere amusement (?;). The second 
 section of the statute has been held to include only such ease- 
 ments upon or over the surface of the servient tenement as are 
 capable of 'being interrupted by the owner thereof, so as to prevent 
 the enjoyment from ripening into a right. An enjojonent, there- 
 fore, for twenty years of the free and uninterrupted passage of wind 
 to a windmill, does not impose upon the owners of the adjoining 
 
 (t) SkuttUwoHh V. Ze Fleming, 34 L. Ismay, 1 H. & C. 729 ; 34 Law J., Exch. 
 
 J.O. P. 309. 52, 
 
 (u) Bailey v. Stepheru, 12 C. B., N. S. Cv) Mouneey t. Ismay, utsup. 
 113 ; 31 Law J., C, P. 228. Moimseyv. 
 
SECT. 1.] ENJOYMENT AS OF EIGHT, BY CONSENT, ETC. 119 
 
 land the servitude of keeping their land open and free from 
 buildings, in order that the wind may not be taken out of the 
 miller's sails (x). 
 
 In order to gain a prescriptive title from uninterrupted user and 
 enjoyment under the first and second sections of the Prescription Act, 
 it must ie proved that the enjoyment has been " as of right," for that is 
 the form in which, by section 5 of the statute (ante, p. 117), the 
 claim must be pleaded. It must be such an enjoyment as of right, 
 and without interruption, as would under the old law of prescrip- 
 tion have raised a presumption of a grant (y). " The whole purview 
 of the Prescription Act," observes Lord Abinger, " shows that it 
 applies only to such rights as would before the Act have been 
 acquired by the presumption of a grant from long user. The Act 
 expressly requires enjoyment for different periods without interrup- 
 tion, and therefore necessarily imports such an user as could be 
 interrupted by some one capable of resisting the claim. It also 
 requires it to be of right " («). All circumstances, therefore, tend- 
 ing to rebut the presumption of a grant, and to prove that no grant 
 could ever have existed, or have lawfully been niade, are admissible 
 in evidence to show that there was no enjoyment as of right 
 within the meaning of the statute (a). Therefore, when lands are 
 out on lease, an enjoyment by the acquiescence of the tenant, 
 without the knowledge and acquiescence of the landlord or rever- 
 sioner, cannot be made the foundation of a prescriptive right or 
 title under the statute (&). 
 
 Enjoyment hy consent or agreement. — The proviso in s. 1 of the 
 Prescription Act, that the right shall be deemed absolute and 
 indefeasible, unless it shall appear that the same was taken and 
 enjoyed by some consent or agreement, expressly made or given for 
 that purpose by deed or writing, supposes that there may be an 
 enjoyment as -of right, though by consent or agreement ; but that 
 applies to cases where the title to the dominant and servient tene- 
 ments is such that the enjoyment could be as of right within the 
 statute, not where from unity of possession or otherwise it neces- 
 sarily cannot be. The enjoyment must be of right against the land, 
 not against the individual (c). 
 
 User and enjoyment as of right against all persons having an estate 
 or interest in the land.-:— A. user and enjoyment which does not give 
 a valid title as against the owner of the inheritance cannot give a 
 
 (x) Webb T. Bird, 10 C. B., N. S. 268 ; Rigg v. LomdaU, 1 H. & N. 323 ; 23 Law 
 
 13 lb. 841 ; 30 Law J., 0. P. 384 ; 31 ib. J., Bzch. 81. 
 
 0. P. 335. (<*) ^'^^ ■'■• ^^'"' I'orest Co., 18 C. B. 
 
 (y) "Longus usua nee per vim, nee 60; 23 Law J., 0. P. 215. 
 
 clam nee precario."— Bract, lib. 4, fol. (5) Ante, p. 115. Deeble r. Lmeham, 
 
 222 ; Co. Litt. 114. £rigU r. Walker, 12 Ir. 0. L. R. 16. 
 
 1 C. M. & E. 219. Ante, p. 114. (c) Warbmion t. ParJce, 2 H. & N. 64 ; 
 
 («) ArhwrigU v. Gellj 5 M. & W, 234. 26 Law X, Exoh. 299. 
 
120 PEESCEIPTIVE RIGHTS. [CHAP. III. 
 
 title as against the lessee and' the persons claiming under him, for 
 no title at all can be gained by a user and enjoyment whicli do not 
 give a vaM title against all" persons having estates in the land over 
 or upon which the easement has been enjoyed (i). 
 
 What sort of enjoyment is essential to the gaining of a prescriptive 
 right of way. — If there be a ten years' enjoyment of a right of way, 
 and then a cessation for ten years Tonder a temporary agreement for 
 a different and substituted way, there may be a sufficient enjoy- 
 ment of the original right for twenty years to make it indefeasible 
 under the statute (e). 
 
 Enjoyment of a way over land out on lease does not give any 
 right of way as against the reversioner, unless the enjoyment has 
 been had with his knowledge and acquiescence, so as to be an en- 
 joyment "as of right." Thus, where a stranger entered on the- land 
 of the reversioner in the occupation of his lessee, and traversed the 
 land with carts and horses in the exercise of an alleged right of 
 way, it was contended that the trespass, being accompanied with a 
 claim of right, would, if it continued unopposed by the reversioner, 
 be evidence of a right of way as against him at some future period. 
 " But acts of this sort," observes Taunton, J., " cannot operate as 
 evidence of right as against the reversioner of land demised to 
 tenants, because the reversioner, during the demise, has no present 
 remedy by which he could obtain redress for such an act. He ' 
 could not maintain an action of trespass in his own name, because he 
 was not in possession of the land, nor an action on the case for injury 
 to the reversion, because in point of fact there was no such permanent 
 injury as would be necessarily prejudicial to it : as, therefore, he had 
 no remedy by law for the wrongful act done by the defendant, the 
 act done by him, or any other stranger, would be no evidence of right 
 as against the plaintiff, so long as the land was in possession of a lessee. 
 In Wood V. Veal (/), it. was held that there could not be a dedica- 
 tion of a way to the public by a tenant for ninety-nine years with- 
 out consent of the owner of the fee ; and that permission, by such 
 tenant would not bind the landlord after the term expired" {g). 
 
 Enjoyment of a right of common by a tenant over land in the 
 possession and occupation of his landlord. — Where a tenant enjoyed 
 a right of common appurtenant to a tenement rented by him over 
 land which was possessed and occupied by his landlord as tenant 
 for life, it was held that, as the landlord could not have an enjoy- 
 
 (d) Br^/ht\.Walker,lG.M.&B.220. 610. However, in the case of public 
 WimUp_v. Hudspeth, 10 Exch. 7; 23 ways, it seems that from long-continued 
 
 Law J^ Exch. 268. WUson t. Stmley, 12 user, going bsMjk as far as liying memory 
 
 '/ \ n ^^^" ^''^ extend, over land under lease, a 
 
 (e) Payne v. Shedden, 1 Mood. & Eob. dedication to the public anterior to the 
 f'j:\ E T! jt iease may be inferred, although no proof 
 /■>' .^ ■"• * ■^'<^- ^54. of user previous to the lease be proved, 
 (flr) Baxter v. Taylor, 4 B. & Ad. 75. Wmterbottom v. Lord Derby, L. E., 2 
 
 See Dmiel v. An4eraon, 31 Law J., Ch. Exch. 316. See ante, p. 115. 
 
SECT. 1.] WATEE — ^WATERCOURSES. 121 
 
 ment as of right against Mmself, so neither could his tenant. All 
 the tenant's rights were derived from his landlord, and whatever 
 he enjoyed was enjoyed by grant from the latter, and such an enjoy- 
 ment is not an enjoyment as of right within the statute (h). 
 
 What sort of enjoyment is essential to the gaining of a prescriptive 
 right to the use of any watercourse or water — Natural and artificial 
 watercourses. — All persons having lands on the margin of a flowing 
 stream have, ex jure naturae, as we have seen {ante, p. 63), certain 
 rights to use the water of that stream, whether they exercise those 
 rights or not ; and they may begin to exercise them whenever they 
 will. By usage, they may acquire a right to use the water in a 
 manner not justified by their natural rights, but such acquired right 
 has no operation against the natural rights of a landowner higher 
 up the stream, unless the user by which it was acquired affects the 
 use that he himself has made of the stream, or his power to use it, 
 so as to raise the presumption of a grant, and so render the tene- 
 ment a,bove a servient tenement (i). 
 
 When a mill has been erected upon a stream, and has stood 
 there and been worked for the period of twenty years, it gives to the 
 mill owner a right that the water shall continue to flow to and from 
 the mill in the manner in which it has been accustomed to flow 
 during all that time. The owner is not bound to use the water in 
 the same precise manner, or to apply it to the same mill ; if he 
 were, that would stop all improvements in machinery.. If, indeed, 
 alterations made prejudice the right of a lower mill, the case would 
 be different (A). 
 
 A custom in a particular country for all persons to use the 
 water in their districts for certain purposes — e.g., mining — will not 
 prevent a man from gaining a prescriptive right to the use of water 
 subject to such custom if). 
 
 Prescriptive right to pen hack water. — If the water of a natural 
 stream is conducted to the plaintiff's land by an artificial cut or 
 channel made through the land of the defendant, and the plaintiff 
 and the former occupiers of the plaintiff's land have for more than 
 twenty years enjoyed this flow of water, and have from time to 
 time during the period gone upon the defendant's land, and re- 
 paired the banks of the artificial cut, and cleaned it out, and placed 
 stones and stakes, and maintained a dam in the natural stream for 
 the purpose of penning back the water, and maldng it flow through 
 the artificial watercourse, a prescriptive right to the flow of water 
 and to the exercise of these customary acts will be gained (m). 
 
 (A) Wa/rluTtm v. Piwke, 2 H. & N. 64; (i) Saunders t. Newman, 1 B. & Aid. 
 
 26 Law J., Bxch. 298; 261. 
 
 (i) Sampson v. Hoddinott, 1 C. B., K. S. {1} Gaved. t. Mwrtyn, 34 L. J., C. P. 353. 
 
 611 ; 26' Law J., Exch. 148. (m) Beeaton v. Weate,5M\. & Bl. 986; 
 
 26 Law J., Q. B. 115. 
 
122 PEESCEIPTIVE EIGHTS. [OHAP. in. 
 
 Prescriptive rights to foul the pure water of a stream, and convert 
 a natural watercourse into a sewer, may be gained by twenty years' 
 uninterrupted user and enjoyment of the privilege. "The general 
 rule of law," observes Lord Ellenborough, "as applied to this subject, 
 is, that if a stream be corrupted in c[uality, as by means of the 
 exercise of certain noisome trades, yet if the occupation of the 
 stream by the party so taking or using it has existed for so long a 
 time as may raise the presumption of a grant, the other party, whose 
 land is below, miist take the stream subject to such adverse right. 
 I take it that twenty years' exclusive enjoyment of the water in 
 any particular manner affords a conclusive presumption of -right in 
 the party so enjoying it, derived from grant or Act of Parliament "(w). 
 And where the method of manufacture is varied, e.g., by the substitu- 
 tion of some other material for rags in the manufacture of paper, the 
 f)rescriptive right to foul a stream by pouring into it the refuse from 
 the mill is not destroyed, if the substituted materials be reasonable 
 and proper for the purpose, and the pollution is not increased (o), 
 
 User and enjoyment of water from artificial drainage, canals, &c. 
 — The circumstances under which a watercourse was originally 
 made, and under which it has been subsequently enjoyed, may 
 prove the enjoyment, however long continued, to have been without 
 right or any pretence or claim of right. The artificial nature of an 
 adit or watercourse, constructed for the purpose of draining a mine, 
 and a notorious practice in mineral districts for the owners of mines 
 to make watercourses for the purpose of draining their mines, and 
 resume and discontinue the working of their miaes at their own 
 convenience, and according as it suits their interests, may fix all 
 persons with the knowledge that those who cleared the mine by the 
 adit notoriously reserved to themselves the right of working the 
 mine at any time, with aU the rights of fouling the -water flowing 
 from the mine with the dirt and rubbish which usually attend 
 mining operations, so as to prevent parties who have, taken 
 advantage of the accidental non-user of the mine to use the adit- 
 water from having an enjoyment as of right, and gaining a title to 
 the use of the water uncontaminated by mining operations (p), or 
 to its use at aU {g). 
 
 " The proposition that a watercourse, of whatever antiquity, and 
 in whatever degree enjoyed by numerous persons, cannot be enjoyed 
 so as to confer a right to the use of the water, if proved to have 
 been artificial, is quite indefensible (r), but on the other hand, the 
 general proposition that, under all circumstances, the right to water- 
 
 In) JBeaUy v. Slum, 6 East, 214. (p) Magory. Chadmck, 11 AA. k TSi. 
 
 Wright T. Waiicms, 1 M. & W. 77. 585. 
 
 Garlym t. Lovering, 1 H. & N. 789. ^ (g) Oaved t. Mm-tyn, supra, 
 
 (o) Baxmdale t. McMurray, L. K., 2 M Ivmey v. Stacker, L. K., 1 Ch. App. 
 
 Ch.App.790. 396/acc. - » fi- 
 
SECT. 1.] ARTIFICIAL WATEECOURSES. 123 
 
 courses arising from enjoyment is tlie same, whether they Ije natural 
 or artificial, cannot possibly be sustained. The right to artificial 
 watercourses, as against the party creating them, depends upon the 
 character of the watercourse, whether it be of a permanent or 
 temporary nature, and upon the circumstances under which it is 
 created (s). The flow of water for twenty years from the eaves of 
 a house could not give a right to the neighbour to insist that the 
 house should not be pulled down, or altered so as to diminish the 
 quantity of water flowing from the roof The flow of water for 
 twenty years from a drain made for agricultural improvements, 
 could not give a right to the neighbour so" as to preclude the 
 proprietor from altering the level of his drains for the greater 
 improvement of the land. The state of circumstances in such cases 
 shows that one party never intended to give, nor the other to enjoy, 
 the use of the stream as a matter of right "'(t). So the user by one 
 canal company of the surplus water of another canal company for 
 more than forty years will give no right to the last-mentioned 
 company for its continuance, if a grant for that purpose by the 
 first-mentioned company would have been ultra vires (u). 
 
 If a steam-engine or sough is constructed and used by the 
 owner of a mine to drain it, and the water pumped up by the 
 engine, or collected by the sough, flows in a channel to the estate 
 of the adjoining landowner, and is there used for agricultural 
 purposes for twenty years, no right to the water in perpetuity can 
 be gained from any such user, so as to burthen the owner of the 
 mine and his assigns with the obligation of keeping up the steam- 
 engine or the sough, and pumping or collecting water for the benefit 
 of the adjoining landowners. In cases of this sort no right is 
 acquired as against the owner of the property from which the course 
 of ~water takes its origin, though as between the first and any sub- 
 sequent appropriator of the watercourse itself such a right may be 
 acquired (x). If a farmer, by some system of drainage, draws off 
 the rain-faU from his lands, and pours it into the plaintiff's ditch, 
 and so creates a new and artificial supply of water, and the latter 
 uses the water for more than twenty years, and after that the farmer 
 adopts a new mode of drainage, and in so doing cuts off the artificial 
 supply of water, the plaintiff has no remedy for the loss of the wat^r, 
 the supply being of a temporary character, and the circumstances 
 showing that the one party never intended to give, nor the other 
 to enjoy, the use of 'the artificial drainage- water, as a matter of 
 right (y). 
 
 (s) Butdife v. Booth, 32 Law J., Q. B. («) Staffordshire _ and Worcestefshii-e 
 
 136. Gaved t. Mwrtyn, supra. Carnal Co. v. Bi/rmmgham Canal Nam- 
 
 . (t) ter cur., Wood T. Waud, 3 Exoh. gations, L. K., 1 App. Ca. 254. 
 
 779. Aeo. Mason v. Shrewslury liiHere- (x) Arhwright t. Gdl, 5 M. & W. 232. 
 
 ford Sail., ante, p. 64. (y) Oreatrex r. Haywood, 8 Bxch. 291. 
 
124 PKESOEIPTIVE RIGHTS. ■ [CHAP. III. 
 
 What sort of enjoyment is essential to the gaining of a right 
 of suppo'd to - 'buildings from, the adjoining land of a neighbouring.' 
 proprietor. — "When houses and buildings have been notoriously 
 supported by the adjoining land of a neighbouring proprietor for ■ 
 the full period of twenty years, a right to siich adjacent support 
 is gained, unless something be shown to displace such right (a). A 
 defendant who has acquiesced for more than twenty years in the 
 enjoyment, by the plaintiff, of the privilege of lateral support from 
 the defendant's adjoining soil, cannot afterwards lawfully interrupt 
 the enjoyment of such privilege (a). 
 
 "There may be some difficulty," observes Lord Campbell, 
 " whence the grant of the easement of support to a house is to be 
 presumed, as the owner of jfche adjoining land cannot prevent its 
 being built, and may not be able to disturb the enjoyment of ii, 
 without serious loss or inconvenience to himself; but the law 
 favours the preservation of enjoyments acquired by the labour of 
 one man, and acquiesced in by another who has the power to 
 interrupt them ; and as, on the supposition of a grant, the right to 
 light may be gaiaed from not erecting a wall to obstruct it, the 
 right to support for a new building erected near the extremity of 
 the o^Tier's land may be explained on the same principle " (b) ; but 
 a grant ought not to be inferred from any lapse of' time short of 
 twenty years after the neighbour was, or ought to have been, fully 
 aware of the facts. The easement must have been, enjoyed for 
 twenty years under a claim of right, "and if neither party was 
 acquainted with the fact that the easement was actually used at 
 all, we should probably," observes Alderson, B., " be of opinion that 
 there was no user of the easement under a claim of right" (c). 
 
 Houses resting against each other. — If two houses are built 
 against each other, with separate and independent walls resting 
 upon separate and independent foundations, so as to stand inde?- 
 pgndently of each other, one house has no right to support from 
 the other ; and if the foundations of one of the houses subside, and 
 the house rests upon the adjoining house, and requires the support 
 of the latter, it does not follow that, because it has required and 
 leceived that support for twenty years, any right to support is 
 thereby acquired. Such a right cannot be claimed as a right by 
 prescription, which supposes a state of things existing before the 
 time of legal memory ; nor is it a right under the Prescription Act, 
 which has been hitherto confined to rights in their nature of a per- 
 
 Rmtistron r. Taylor, 11, ib. 369. See t. Windsor, 1 Cr. & Jery. 27. Sogers v. 
 
 Hflliard ou Torts, 110, n. Taylor, 2 H. & N. 828 ; 27 Law J., Exch. 
 
 {e) Parke, B., IIide<y. Thornhorough, 2 175. 
 
 C. & K. 255. (6) Humphries v. Brogden, 12 Q. B. 
 
 (a) Wood, V.-C, Evnt t. Peake, 1 749. 
 
 Johns. 710 ; 29 Law -J., Ch. 785. Brown (c) Partridge v. Scott, 3 M. & W. 230. 
 
SECT. 1.] ADiOINING HOUSES — FENCES— WINDOWS. 125 
 
 petual and permanent character, and the ownership of which is in 
 fee simple; and it seems contrary to justice and reason that a man,, 
 by building a weak house adjoining to the house of his neighbour, 
 can, if the weak house gets out of the perpendicular and leans upon 
 the adjoining house, be subjected to the burthen of supporting and 
 propping up the weak house after it has stood for twenty years : 
 an enjoyment of such a privilege is not an enjoyment " as of right " 
 within the Prescription Act (d). 
 
 What sort of enjoyment of the heneflt of a loundary fence is 
 requisite to gain a prescriptive right to have the fence kept wp at 
 the expense of one- landowner for the henefit of another, — We have 
 seen that the presumption of legal title by grant to'easements and 
 incorporeal rights in the lands of others is founded on adverse 
 enjoyment of such rights from time immemorial. Btit where the 
 enjoyment can be satisfactorily accounted for, and is consistent 
 with there having been no grant, there is, as we have seen, no 
 ground for presuming one {ante, p. 114). 
 
 In the case, therefore, of proof of enjoyment by one landowner , 
 of a fence erected by his neighbour, and repaired, as occasion"'^ 
 required, by the latter, there is no proof of such adverse enjoyment, 
 as raises a presumption of a grant of the benefit of the fence by one 
 landowner to the other. Every man is bound by law to take care 
 that his beasts do not trespass upon the lands of his neighbours. 
 He may prevent their doing so, either by employing servants to 
 keep them within the limits of his own land, or by enclosing; his 
 land with fences, so that the cattle cannot escape. The making of 
 a fence, therefore, between his own land and that of his neighbour, 
 does not raise any inference that the fenpe was intended for the 
 benefit of his neighbour, although the fence prevents his neigh- 
 bour's beasts from trespassing as well as his own ; for it is for his 
 own benefit to prevent his beasts from trespassing upon his neigh- 
 bour's property (e). _ 
 
 What sort of enjoyment is essential to the. gaining of a prescriptive 
 right to the access of light to windows. — The third section of the Pre- 
 scription Act provides, as we have seen, that where the access and 
 use of light to and for any i dwelling-house, workshop, or other 
 building, shall have been actually enjoyed therewith for the full 
 period of twenty years without 'interruption, the right thereto shall 
 be deemed absolute and indefeasible, any local custom or usage to 
 the contrary notwithstanding, unless it shaU appear that the same 
 was enjoyed by some consent or agreement, expressly made or 
 given for that purpose, by deed or writing. " Upon this section it 
 is material to observe," says Lord Westbury, " that the right to 
 
 (d) Solomon v. Vintners'' Co. Peyton ler, ante, p. 93. 
 T. Mayor of London. Kempston v. But- (e) Boyle v. Tamlyn, 6 B. & C. 337. 
 
126 PKESCETPTIVE EIGHTS. [OHAP. III. 
 
 what is called "an ancient light' now depends upon positive 
 enactment. It is matter juris positivi, and does not require, and 
 therefore ought not to be rested on, any presumption of grant or 
 fiction of a licence having been obtained from the adjoining 
 proprietor" (/). 
 
 "This section," observes Parke, B., "is differently worded from 
 the others, and the acquisition of right to light is much favoured, 
 as a far less time gives an indefeasible right ; and the proviso in 
 the 7th section (ante, p. 117-18), which excludes the time when 
 a person, otherwise capable of objecting, is an infant, idiot, non 
 compos, feme coverte, or tenant for life, from other periods of compu- 
 tation, includes it in this. It also differs from th& 2nd section, in 
 not requiring that the enjoyment should be by a person ' claiming 
 right ' in express terms. What, then, is the enjoyment contem- 
 plated by the 3rd section ? We think it clear, notwithstanding the 
 absence of the words in the 2nd section above referred to, that it 
 converts into a right such an enjoyment only of the access of light 
 over contiguous land as had been ha.d for the whole period of 
 twenty years, in the character of an easement, distinct from the 
 enjoyment of the land itself, and that the statute puts this species 
 of negative easement, as it has been termed, on the same footing, in 
 this respect, as those positive easements provided for by the other 
 sections, all of which, after long enjoyment as easements, are 
 invested with the quality of rights. In the first place, the access 
 of light, under this section, must, have been enjoyed for twenty 
 years without interruption — not in the sense of an uninterrupted 
 or continuous user, but without such interruption as is mentioned 
 in the subsequent section — that is, an interruption submitted to for 
 one year after the party shall have had notice thereof, and of the 
 persons making or authorizing the same to be made (g). From 
 this it follows, that the legislature contemplated such an enjoyment 
 as could be interrupted by the adjoining occupier, at least during 
 some part of the time " (h). 
 
 Where, therefore, the owner in fee of an ancient house, and the 
 land surrounding it, having enjoyed the access of light to his 
 windows across such adjoining land, his own property, for more 
 than twenty years, sells such surrounding land, and the purchaser 
 builds thereon, so as to shut out the light from the ancient house, 
 the owner has no remedy, as his enjoyment being over his own 
 land is not such an enjoyment as is contemplated by the statute (i). 
 
 If windows have been enjoyed, subject ♦to the payment of a 
 
 (/) Ta/pling y. Jones, 34 L. J., C. P. (h) Parke, B., Ilariidffe r. Wwrwich', 3 
 
 3^4. Exeh. 556 ; 18 Law J., Exch. 245. 
 
 (g) See Mght v. Thomas, 8 01, & Fir. (i) White'v. Bass, 1 H. & N, 722 ; 31 
 
 231.. Law J., Exch. 283, 
 
SECT. 1.] LIGHT — UNITY OV OWNERSHIP. 127 
 
 rent, this is an enjoyment by consent or agreement, and' therefore 
 confers no right under the statute ; but the payment of the rent is 
 no evidence of any interruption of enjoyment (J). 
 
 Unity of ownership of the dominant and servient tenements pre- 
 venting the acquisition of a prescriptive right to the free access of 
 light, — If the house and windows and the adjoining premises over 
 which light comes are in the possession of the same person, no 
 grant can be presumed from the enjoyment of the liglit in that 
 condition of the property, and no right to the light can be acquired, 
 as we have just seen, under the statute by reason of such enjoy- 
 ment (k). Therefore, where the plaintiff and his father, whom he 
 succeeded, had occupied a house, of which they were successively 
 seised in fee for more than sixty years, and had also, during the 
 whole period of their occupation of the house, occupied an adjoining 
 garden as tenants from year to year under three successive landlords, 
 ■ of whom the defendant was the last, and the light came to the 
 windows of the house across this garden, and the defendant, having 
 determined the yearly tenancy, and got possession of the garden, 
 began to raise the garden-wall, and in so doing obstructed the 
 windows of the plaintiff's house, it was held that the enjoyment 
 of the light across the garden, during the unity of possession of the 
 house and garden, was not such an enjoyment of light as could be 
 made the foundation of a prescriptive right under the statute, and 
 that the plaintiff consequently could not maintain any action for 
 the obstruction of his windows (J). The accruing right to the light 
 is suspended during the unity of possession (m). 
 
 Where, on the other hand, the windows and the land across 
 which the light comes are in the occupation of different parties, 
 and there is no unity of possession of the dominant and servient 
 tenements, a prescriptive right would be gained by twenty years' 
 uninterrupted enjoyment, although the servient land across which 
 the light comes is held on lease (n). It is true, that if a man open 
 a window on adjoining land let on lease, and the landlord or rever- 
 sioner of that land object to it, the latter may have no means of 
 redress, or power of preventing the right to light being acquired 
 by twenty years' enjoyment, unless he can induce his tenants to 
 block up the windows, or get an acknowledgment in writing that 
 the right is enjoyed by consent only ; but such want of redrc S5 and 
 inability of prevention will, nevertheless, not prevent the right from 
 being acquired (o). 
 
 Enlargement of vnndows — Enjoyment of enlarged windows. — ^A 
 
 (j) Plasterers' Co.v. Parish Clerks' Co., App. 763. 
 6 Eich. 630. (™) '^'■°'« T- -^ewis, 2 B. & C. 686 ; 
 
 (h) White V. Bass, supra. ante, p. 126. 
 
 (Z) ffarbidge v. Warwick, supra. (o) Frewen v. Phillips, 11 0. B., N. S, 
 
 (m) Ladyman y. Grave, L. E., 6 Oh. 455 ; 30 Law J., 0. P. 356. 
 
128 PEESCEIPTIVE EIGHTS. [CHAP. III. 
 
 person cannot, by enlarging a window, enlarge his right to the enjoy- 
 ment of light. The enlarged portion of .an ancient window constitutes 
 a new window, and does not enjoy the same rights and privileges 
 as the ancient aperture. If an ancient window is supplanted by a 
 new window, varying in size, elevation, or position, from the 
 ancient window, the new window may be obstructed . by the ad- 
 joining landowner, but not the space occupied by the ancient 
 aperture (p). If a window has been enlarged and then obstructed, 
 and the window is then reduced to its ancient size, the obstruction 
 becomes unlawful as soon as the window has been restored to its 
 former state {q). 
 
 The right to light is prima facie to that amount which would 
 come naturally to the window. A man, therefore, does not lose his 
 right because for a period he may require for the purpose of his 
 business only a subdued light (r), nor, on the other hand, can he 
 be entitled to the peculiar kind or an extraordinary quantity of 
 light which may be requisite for certain trades or professions, 
 xmless he has enjoyed the light to that extent for the prescribed 
 period (s). i 
 
 It is not necessary that the house should be occupied, or even 
 that it should be fit for immediate habitation, during the statutory 
 period, provided it is structurally complete (t). 
 
 What interruption in the enjoyment prevents the acquisition of a 
 title hy prescriptionir-^J s. 4 of the Prescription Act, it is enacted, 
 that no act or other matter shall be deemed to be an interruption, 
 unless the same shall have been submitted to or acquiesced in for 
 one year after the party interrupted shall have had notice thereof 
 and of the person making the same, or authorising the same to be 
 made. Where, therefore, the use of light and air had been enjoyed 
 for nineteen years and three hundred and thirty days, and was then 
 interrupted by the erection of a building, which interruption con- 
 tinued to the time of the commencement of the action, but the 
 interruption was not submitted to or acquiesced in, as the plaintiff 
 brought his action within a few months thereof, it was held that 
 such erection of a wall was not an interruption preventing the 
 establishment of the right within the terms of the fourth section of 
 the statute (w). But though an interruption must be acquiesced in 
 for a full year before it breaks the period, where the subject-matter 
 has, previously to the interruption, been enjoyed as of right, inter- 
 
 {p) Blamhard v. Bridges, 4 Ad. & E. {g) Jonesv. Tapling.post, p. 136. 
 
 . 191. Clumdler V. Thompson, 3 Oampb. (r) FaJcs v. /aci, L. R, 1 Ch. App. 295. 
 
 80. Cooper v. Hubbock, 30 Beav. 160. (a) Lanfranchi t. Machmzie, L. E., i 
 
 Dames v.- Marshall, 1 Dr. & Sm. 557. Eq. Ca. 421. 
 
 Turmr T. Spooner, 30 Law J., Ch. 801 ; (t) Oourtald v. Legh, L. E., 4 Exch. 126. 
 
 1 Drew. & Sm. 467. ffeath v. BucknaU. (u) Plight v. Thomas, 11 Ad. & E. 
 
 38 L. J., Ch. 372. And see Extimguish- 699 ; 8 CI. & Fin. 241. 
 ment of Easements, post, p. 133, 135 — 6. 
 
SECT. 1.] CONTINUOUS ENJOYMENT AS OF EIGHT. 129 
 
 ruptions acquiesced in for less than a year may be of great weiglit 
 as evidence on the question -whether there ever was a commence- 
 ment of an enjoyment as of right. Such interruptions are 
 explanatory of the real nature of the user. If the enjoyment ha,s 
 been contentious, it is not of right. Therefore, where a person had 
 been summoned, and convicted, and fined, for drawing off water 
 from a watercourse, it was held that the conviction and fine, and 
 payment of the fine, were proper and most material evidence of the 
 user and enjoyment not having been of right {v). Nor does it 
 follow that an interruption is acquiesced in because an action has 
 not been brought. "Where the lord has attempted to stop the user 
 of a common, the fact that some of the tenants have yielded to 
 such attempts is not an interruption of the right within the mean- 
 ing of the Act, so as to bar the freeholders as a body, who have 
 never yielded to or acquiesced in the lord's claim {x). It is in 
 general for a jury to "determine whether or not there has been 
 acquiescence (jj). 
 
 Of the necessity of a continuous enjoyment as of right and without 
 interruption. — ^The enjoyment of the profit k prendre, or easement, 
 under the statute, must be an enjoyment" for a continuous period, 
 without such interruption as is defined in the fourth section of the 
 statute. The enjoyment of the privilege must be continuous (z), 
 but the exercise of the right need not be continuous. Formerly 
 it was thought that some act of user must take place within each 
 year (a), but this has since been held not to be necessary ; for 
 where' proof was given of the enjoyment of a profit k prendre at the 
 time of the commencement of an action, and for thirty years 
 before, but enjoyment during the whole of the intermediate period 
 could not be proved, it was held to be a question for a jury, whether 
 at that time the right had ceased, or was stOl substantially 
 enjoyed. Thus, where there was an actual enjoyment of coipmon 
 of pasture for forty years next before the commencement of an 
 action, with the exception of an interval of two years out of 
 the forty, when the claimant ceased to use the common, because 
 he had no commonable cattle to depasture, and not in conse- 
 quence of any obstruction to his exercise of the right, it was 
 held that the jury were justified in finding a continued enjoy- 
 ment of the right during the two years in which it was not 
 exercised (6). " It has been ingeniously argued," observes Lord 
 Denman, " that a thirty years' enjoyment cannot have taken place 
 
 ,,, „ c. — ii7,.ta. Ai 17 O (z\ Onlev v. Gardiner, 4 M. & W. 500. 
 
 {v) Eaton f. Swamea Wate, Co., 17 Q. ^^J^^ V^^.^^^ ^^ ^'^ ^ ^^^ 
 
 tx)WwrricTc v. Q,ueen's CoUege, L. E., (a) Lowe^. Carpe»<cr, 6Exoh 831. 
 
 10 Eq. Cr7o5 ; 6 Ch. App. 716. i^Carr v, Foster, 3 Q. B. 581 ; port, 
 
 (y) Bennisony. Oartwright, 33 J/£VW J-, P- '■°l< 
 Q. B. 137. ' ^ 
 
130 PEESCKIPTIVE EIGHTS. [CHAP. III. 
 
 where there has been two years' intermission ; but the words of s. 1 
 are ' without interruption/ not ' without intermission,' and the in- 
 termission must be a matter open in every case to explanation ; and 
 where actual enjoyment is shown before and after the period of 
 intermission, it may be inferred from evidence that the right. con- 
 tinued during the whole time." " Interruption," further observes 
 Patteson, J., "must clearly mean an obstruction by the act of some 
 other person than the claimant, not a cessation by him of his own 
 accord." "No necessary iuference of interruption in the enjoyment 
 arises," further observes "Williams, J., "from a cesser of enjoyment 
 during two, three, or even seven years.'' And "if there is proof to the 
 satisfaction of a jury of a long enjoyment of the alleged privilege, 
 they ought not to negative it merely because there was a time 
 during which there was no enjoyment " (c). Where, on the other 
 hand, an artificial impediment in the shape of a stang or rail had 
 been erected, which prevented the access of cattle from the plain- 
 tiff's farm to the land over which the right of common was claimed, 
 and this stang was removed by agreement, and then, the plaintiff's 
 cattle depastured on the land, and continued so to do for twenty- 
 eight years continuously after the removal of the stang, down to the 
 time of the commencement of the action, it was held that an enjoy- 
 ment for thirty years could not be presumed from this evidence (d). 
 What breaks the continuity of the enjoyrhentr— Ashing leave. — 
 " The asking leave from time to time breaks the continuity of the 
 enjoyment as of right, because each asking of leave is an admission 
 that, at that time, the asker had no right; and, therefore, the 
 evidence of such asking within the period is admissible under a 
 general traverse of the enjoyment for forty or twenty years as of 
 
 • right" (e). 
 
 Of the necessity of a continuous enjoyment down to the period of 
 the commencement of the action. — ^The Prescription Act expressly 
 requires (ss. 1, 2) enjoyment "without interruption for the full 
 periods therein mentioned." Section 6 enacts, that no presumption 
 shall be allowed in support of any claim on proof of enjoyment for 
 any less period or number of years ; and by s. 4 it is enacted, that 
 each of the respective periods of years thereinbefore mentioned 
 shall be deemed and taken to be the period next before some suit 
 
 . or action whereiu the claim or matter to which such period may 
 relate shall have been, or shall be, brought in question ; and it was 
 formerly held that the enjoyment, in order to give a right under 
 the statute, must be up to the time of the commencement of the 
 
 (c) Willes, J., Darlinff v. Chie, i F. (e) Tickle v. Brovm, 4 Ad. & B. 
 & P. 334. 382. Sright v. Wallcer, 1 Or. M. & R. 
 
 (d) Baiihy v, Apphywd, 8 Ad. & E, gl9. 
 165. 
 
SECT. l.J TENANTS FOR LIFE— MINORS, ETC. 131 
 
 suit (/). But when a prescriptive right has once been gained by 
 twenty or thirty years' uninterrupted enjoyment as of right, it is 
 not lost again 'by mere non-user, for it does not follow that a man 
 has lost his right merely because he has not thought iit to exercise 
 It {ante, p. 129). An exercise of the right once a year down to the 
 time of the commencement of the action is not, therefore, essential 
 to the proof of a prescriptive title under the statute. " The inten- 
 tion," observes WiUes, J., " was to give enjoyment under the Act the 
 same effect as the evidence which would sustain a prescriptive 
 claim before the Act, except that the terminus of the statutory 
 enjoyment must be a suit or action which discloses the nature of 
 the claim, and gives an opportunity of litigating it. The evidence, 
 therefore, to sustain a prescriptive claim need not come down to the 
 commencement of the suit, nor to any definite period " {g). 
 
 Exclusion from the computation of the thirty and twenty years' 
 enjoyment of those periods during ivhich parties otherwise capable of 
 resisting the claim were infants, idiots, feme covertes, or tenants for 
 life. — The seventh section of the Prescription Act provides, as we 
 have seen, that the time during which any person otherwise capable 
 of resisting the claim shall be an infant, non compos mentis, feme 
 coverte, or tenant for life, shall be excluded from the computation of 
 the respective periods, except where the claim is thereby declared 
 to be absolute and indefeasible. The claim is by the statute declared 
 to be absolute and indefeasible iii those cases where there has been 
 an enjoyment as of right and without such interruption as is men- 
 tioned in s. 4 of a way, watercourse, or use of water, or other ease- 
 ment, for the term of forty years, and of a profit k prendre for the term 
 of sixty years, and of the access and use of light and air to any 
 dwelling-house, workshop, or other building for twenty years, unless 
 it shall appear that the same was enjoyed by some consent or agree- 
 ment expressly given or made for that purpose by deed or writing. 
 Where a defendant claiming a prescriptive right to the enjoy- 
 ment of a profit a prendre in the soil of the plaintiff showed an 
 uninterrupted enjoyment for twenty years before a life estate, and 
 during its continuance, and for six years after its determination 
 up to the commencement of the action, and the question was 
 whether that enjoyment was sufficient, or whether the thirty years 
 must be the actual thirty next before the commencement of the 
 action, it was held that the Wo sections of the statute,— viz. s. 4, 
 enacting that the respective periods of enjoyment should be deemed 
 and taken to be the period next before. some suitor action, and s. 7, 
 providing that the time during which any person capable of resist- 
 
 (f) W(wdr.}ioUns,15M.&'W.2i2. & E. 788. 
 SattisMll V. Beed, 18 C. B. 705 ; 25 Law (g) Cooper v. Hubbuch, 12 C. ";■»•». 
 
 J, C P, 290, Parkerr. Mitchell, n Ad. i70, SeeWardT,W<wd,post,Tpp.Ui,lS7. 
 
 K 2 
 
132 PRESCRIPTIVE RIGHTS. [CHAP. III. 
 
 ing the claim was tenant for life, &o., should be excluded in the 
 computation, — must be read together, so that the period is thirty- 
 years next before the action, excluding in the computation of those 
 thirty years any tenancy for life Qi). 
 
 Of (he right of r&v&rsioners to exclude from the computation of the 
 forty years the periods of the enjoyment of a way or watercourse, and 
 use of ivater, over lands demised for life or years. — By s. 8 of the 
 Prescription Act (ante, p. 118), it is expressly enacted, that when 
 any land or water upon, over, or from which any right of way or 
 convenient watercourse, or use of water, shall have been enjoyed 
 or derived, hath been or shall be held under any term of life, or any 
 term of years exceeding three years from the granting thereof, the 
 time of the enjoyment of any such way, watercourse, or water, 
 during the continuance of such terra, shaU be excluded in the 
 computation of the said period of forty years, in case the claim 
 shall within three years next after the determination of such term 
 be resisted by the reversioner. 
 
 By the ancient law of prescription, whenever it appeared that 
 the land over or upon which an easement of this sort had been 
 enjoyed was in the occupation of a tenant for life, or tenant for 
 term of years, during the whole period of the enjoyment of the 
 privilege, the presumption of a grant was rebutted and the ease- 
 ment extinguished, however long and notorious might have been 
 the user and enjoyment, and although the owner of the fee was 
 fully aware of aU that had been done upon the land (i), and had 
 made no protest against, or objection to, the enjoyment of the 
 privilege. But since the Prescription Act, if the privilege has been 
 enjoyed without such interruption for forty years, or as far bade 
 as living memory will go, the right cannot be defeated merely by 
 showing that the land was on lease during the whole period of 
 enjoyment; for the jury, under such circumstances, may infer a 
 dedication previous to the lease (k). It must be shown either that 
 the enjoyment was had without the knowledge of the reversioner 
 (ante, pp.'114, 115), or that the reversioner, within three years after 
 the determination of the particular estate, resisted the claim to 
 the easement (l). 
 
 "The period during which the land over which the right is 
 claimed has been leased for a term exceeding three years is not, 
 under s. 8, to be excluded from the computation of a twenty years' 
 enjoyment. Section 7 excludes certain timfes, including that of a 
 tenancy for life, but not that of a tenancy for years, from the 
 
 (h) Clayton v. Oorhy, 2 Q. B. 824. (A) Winterbottom v. Lord Derby, L. E., 
 
 (i) Bradbury v. Cfrinsell, 3 Saund. 175, 2 Bxoh. 316. 
 (i)-in notis. Sarher 7. Richardson, 4 B. (Z) Wright v. Williams, 1 M. & W. 100. 
 
 h, Aid. 581. Wood t, Yeal, 5 ib. 456,. Wilson y, Stanley, 12 Jr. Com. Law Eepi 
 
 ??7, 
 
SECT. l.J -WAIVER AND EXTINGUISHMENT OF EASEMENTS. 133 
 
 computatiou of tlie 'periods' thereinbefore mentioned; and a 
 twenty years' enjoyment is one of those periods. But section 8 
 provides for the exclusioi;i of certain other times, among which is 
 a tenancy for more than three years, not from the periods therein- 
 before mentioned, but from one particular period only, expressly 
 mentioned, namely, that of an enjoyment for forty years " (m). 
 
 Waiver and extiiiguishment of easements. — A title once gained 
 by prescription or custom cannot be lost by interruption of the 
 possession or enjoyment for ten or twenty years, but it may be lost 
 by interruption in the right, as if a man have a rent or common by 
 prescription, unity of possession of as high and perdurable estate 
 in the land is an interruption in the right (n), for when there is 
 once a title by prescription vested, it cannot be taken away by a 
 cesser of user of the right of late time, but it will be destroyed by 
 unity of ownership of the dominant and servient tenements (o). 
 Thus, where a modus decimandi was alleged by prescription time 
 out of mind for tithes of lambs ; and thereupon issue was joined, 
 and the jury found that before twenty years then last past there 
 was such a prescription, and that for these twenty years he (the 
 plaintiff) had paid tithe lamb in specie ; and it was objected : 1. 
 That the issue was found against the plaintiff, for that the 
 prescription was general for all the time of prescription, and twenty 
 years fail thereof. 2. That the party, by payment of tithes in 
 specie, had waived the prescription or custom. But it was adjudged 
 for the plaintiff in the prohibition, for albeit the modus decimandi 
 had not been paid by the space of twenty years, yet, the prescrip- 
 tion being found, the substance of the issue is found for the 
 plaintiff. 
 
 And if a man hath a common by prescription, and tfiketh a 
 lease of the land for twenty years, whereby the common is sus- 
 pended, after the years ended, he may claim the common generally 
 by prescription, for that the suspension was but to the possession 
 and not to the right, and the inheritance of the common did always 
 remaiu ; and when a prescription or custom doth make a title of 
 inheritance (as Littleton speaketh), the party cannot alter or waive 
 the same inpais (jo). 
 
 In qn action against the defendant for a trespass upon the 
 plaintiff's land, the defendant justified in the exercise of a right of 
 way which he claimed by reason of his possession of a close, the 
 owners and occupiers of which had enjoyed the right from time 
 immemorial, though it had not been exercised for thirty-seven years 
 
 (») Ld. Campbell, PM y. Shwmr, 18 Battishillv. Seed, 18 C. E. 697. See 
 (o) Onley T. Gardiner, 4 M. &W. 600. 
 
134 PRESCRIPTIVE RIGHTS. [OHAP. III. 
 
 prior to the commencemeiit of the action, mainly because one of 
 the tenants had other land of his own adjoining, over which he had 
 a shorter and more convenient way, and in the argument of the 
 case a dictum of Littledale, J., was cited, to the effect that if a 
 party, who has acquired a right by immemorial usage, ceases for a 
 long period of time to make use of the privilege, it may thence be 
 presumed that he has released the right (§') ; but per Alderson, B.: 
 " The presumption of abandonment cannot be made from the mere 
 fact of non-user. The non-user must be the consequence of some- 
 thing which is adverse to the user ;" and per Pollock, C. B. : " The 
 only inference that could reasonably be drawn from the non-user is 
 that the party had no occasion for the user " (r). 
 
 Fwrol abandonment of incorporeal rights. — Where an easement 
 is granted for a particular purpose, or arises as accessorial to 
 a thing granted {ante, p. 86), and the purpose can no longer be 
 accomplished, or the thing granted ceases to exist, so that the 
 easement can no longer be applied to the object for which it 
 was originally granted, the easement is at an end (s). A mere parol 
 licence or agreement wiU suffice for the destruction, although it is 
 insufficient for the creation, of an easement. Thus, if a, person 
 possessed of an easement over the land of the adjoining landowner 
 verbally authorises the latter to do an act of notoriety upon his 
 own land which, when done, will be inconsistent with the continued 
 enjoyment of the easement, and the licence or authority is acted 
 upon, and the thing done, the authority so given and acted upon 
 cannot be revoked, and the easement consequently is extinguished. 
 "Where the plaintiff, for example, having a right to the uninter- 
 rupted access of light and air across the defendant's area, had given 
 the defendant a parol licence or permission to put a skylight over 
 his area, and the skylight was erected by the defendant on his own 
 land, and, when built, was found to impede the passage of the air 
 and light, and to obstruct the plaintiff's easement, it was held that, 
 as the parol licence or permission had been acted upon and exe- 
 cuted, and the skylight built, the licence was irrevocable, and the 
 easement was extinguished {t). 
 
 So where the plaintiff, having a right to the use of a stream of 
 water which flowed through the land of the defendant, gave the 
 defendant a parol licence or permission to lower the banks of the 
 river, and erect a weir, and divert a portion of the water which had 
 previously flowed to the plaintiff's mill, it was held that the plain- 
 tiff, after he had so given up his right to the water that had been 
 
 (g) Moore v. Mwson, 3 B. & C. 332. (s) Natumal GuaromUed Manure Co. v. 
 
 (r) Ward T. JTort?, 7 Exoh. 838.- See DoruM, 4 H. & N. 8; 28 LawJ.,Eioh. 
 
 Cook T. Mayor of Bath, L. E., 6 Eq. Ca. 185. 
 
 177. («) Winter y. BrodcuieU, 8 East, 309. 
 
SECT. 1.] ABANDONMENT OF EASEMENTS. 135 
 
 diverted, and suffered the defendant to act upon the faith of such 
 relinquishment, and incur expense in doing on his own land the 
 very thing that was authorised by the plaintiff to be done, could 
 not then lawfully retract such consent, and throw on the defendant 
 the burthen of restoring things to their former condition (u). 
 
 The same rule prevails in the civil law. In the "Digest," for 
 example, it is laid down, that " if I have a right of discharging my 
 eaves'-droppings into your area, and I authorise you to build in 
 this area, I lose my right of discharge ; and so, if I have a right 
 of way over your property, and I authorise you. to do anything in 
 the place over which my right of way exists, I lose my right of 
 way"(v). 
 
 Waiver and extinguishment of an easement of light and air. — If 
 a person entitled to an easement of light and air does any act of 
 notoriety showing that he abandons the benefit of the light and air 
 he enjoyed, he may lose his right in a much less period of time 
 than would suffice to enable him to gain it. Where the owner of a 
 building with ancient windows overlooking the defendant's pre- 
 mises pulled down the building, and erected another with a blank 
 wall without any windows', and fifteen years afterwards the defen- 
 dant erected a building next this blank wall, and the plaintiff then 
 opened windows in the blank waU in the. place where his ancient 
 windows formerly stood, and then brought an action against the 
 defendant for the obstruction to the light and air caused by the 
 defendant's new building, it was held that the windows thus opened 
 could not claim the privileges of the ancient windows which had 
 formerly existed on the same spot ; that those privileges had been 
 lost by manifest disuse, and that the action was not maintain- 
 able (x). 
 
 If a window has been bricked up for twenty years, it is, when 
 re-opened, prim& facie, a new window (y). But if the facts show 
 that the windows were only temporarily disused, that the frames 
 and sashes were kept in, or the spaces filled with a temporary 
 ifcarding, which could readily be removed, the owner of the window- 
 spaces wiU not lose his right to the easement of light and air by 
 the disuse of the windows for any period short of twenty years, 
 unless the adjoining landowner has been permitted to build against 
 them, and to incur expense, in the reasonable belief that the win- 
 dows have been permanently abandoned, in which case the owner 
 of the windows cannot then insist upon his ancient right, and claim 
 
 («) Liggins T. Inge, 7 Bing. 682. Mood tuum fundum via mihi debeato, etjer- 
 
 T. KeUerAl Iv. Com. Law. Eep. 130. misero tibi, in eo loco, per quai!6iaipSJii 
 
 (v) "Si stillicidii immittendi jus ha- debetur, aliquid facere, amitto-g)^Ti?B. 
 
 beam in aream tuam, et permigero jus —Dig. lib. 9, tit. 6, 1. 8. 
 tibi in ea area sedifloandi, stiUioidii im- «) Moore y. Bawsm, 3 ?. & C. 332 
 
 mittendi jus amitto. Et similiter si per (y) Lcm-ence t. Obee, 3 Oampb. 514. 
 
136 PRESCEIPTIVE EIGHTS. [CHAP. Ill- 
 
 damages for an injury which has heen brought ahout by tis own 
 negligence and want of care (z). 
 
 If a tenant stops up any of the windows of a house that has 
 been demised to him, he is responsible in damages to his land- 
 lord (a). 
 
 Extinguishment of an easement of light h/ alterations in windows 
 and buildings. — ^A person may so alter ancient windows and aper- 
 tures through which light has been admitted into the interior of a 
 building as to lose his right altogether. He may so change the 
 course and direction of the light; and so alter the position of his 
 windows, as to entitle the owner of the adjoining land to block them 
 up altogether (6). If windows have been allowed to be opened, 
 with blinds attached to them sloping upwards, so as to admit the 
 light but obstruct the view over the adjoining land, the right to 
 light which these windows may have acquired by user cannot be 
 enlarged by removal of the blinds. If the blinds are removed, the 
 view from the windows may be obstructed, provided the obstruc- 
 tion causes no greater impediment to the light than was caused by 
 the old blinds (c). However, a person possessed of ancient windows 
 has a right to the full benefit of all the light he can get through 
 the ancient aperture by any change he can effect in the form and 
 character bi the window.- If it is an ancient window, with heavy 
 mouldings, and small diamond panes glazed in lead, he may re- 
 move them, and substitute a large pane of plate glass, without 
 giving the occupier of the servient tenement a right to block up 
 the window, on the ground that the ancient right has been 
 enlarged, and a new easement created, for this is only an alteration 
 in the mode of enjoying the light within the house, and does not 
 vary the size of the external aperture ; and if ancient windows 
 have been painted on the inside, and so used, and the paint is 
 rubbed off, this will not entitle the occupier of the servient tene- 
 ment to block up the unpainted windows (d). And it has been 
 laid down in the House of Lords, that as the right is declared 
 by the Prescription Act to be absolute and indefeasible after twenty 
 years' enjoyment, without interruption, it cannot be lost or de- 
 feated by a subsequent temporary intermission of enjoyment, not 
 amounting to abandonment, and cannot be prejudiced by any 
 attempt to extend the access or use of light (e), for the mere attempt 
 to increase the servitude, which is a lawful act, will not work a 
 
 (z) Stokoe T. Singen, 8 Ell. & Bl. 39 ; (c) CottereU t. Griffiths, i Esp. 69. 
 
 26 LawJ., Q. 13. 257. Ace. in case of {d) Kindersley, V.O., Turner t. 
 
 water : Crossley t. Zightowkr, L. E., 3 Spooner, 1 Drew. & Sm. 467 : 30 Law J., 
 
 Eq. Ca. 279 ; 2 Ch. App. 476 j and of a Ch. 803. 
 
 door, Cook r. Mayor of Bath, L. E., 6Bq. (e) TapUrig v. J<Snes, 34 Law J., C. P. 
 
 Ca. 177. (H. L.) 342, OTerruling Senshaw y. Beam., 
 
 '-^ Thamlimon y. Brown, Sayer, 215. and ffutchineon v. Copestake. See Wea- 
 
 Ga/rritt t. /SAorp, 3 Ad. & E. 330. thxrby v. Rom, 32 Law J., Ch. 128. 
 
SECT. 1.] DISUSE OE ABANDONMENT OF EIGHT. 137 
 
 forfeiture of the right (/). So if new or enlarged windows cannot 
 be obstructed without at the same time obstructing ancient, 
 unaltered windows, an obstruction to such last-named windows 
 cannot be justified ; neither can an obstruction to a lower window 
 be justified merely on the ground that an upper wiadow has been 
 enlarged, or a new .garret window has been thrown out {g). Nor 
 wUl the right be prejudiced by any proposed decrease of light 
 caused by buildings erected by the owner of the dominant tenement 
 himself (A), nor by any increase of light caused by clearances 
 effected in the neighbourhood, unless amounting to so much light 
 that no. one could reasonably want more {i). 
 
 Disuse of right of way. — The presumption of abandonment of a 
 right of way does not arise from the mere fact of non-user, when 
 nothing has been done adverse to the user, and no obstruction 
 has been offered to the enjoyment of the right. Thus, where an 
 immemorial right of way had been enjoyed by the defendant from 
 the defendant's close across the adjoining land of the plaintiff to 
 the high road, and the defendant had demised his close to the 
 plaintiff, and after that to several other tenants, who obtained by 
 leave and licence of the plaintiff and others a more easy and con- 
 venient access to and from the property, and the old prescriptive 
 way was consequently disused for a great many years, it was held 
 that the prescriptive right was not extinguished by the non-user (J). 
 The use of the new track may be considered as an exercise of the 
 old right, and evidence of the continued enjoyment of it (/<;). When, 
 therefore, a new way has been substituted by agreement of the 
 parties in lieu of an old prescriptive way, and the new way is 
 stopped, the old prescriptive right of passage revives (Z). 
 
 If the jury find the right of way once well commenced, it must 
 be shown that it has subsequently been released, abandoned, or 
 destroyed. An express release of the easement would of course 
 destroy it at any moment ; so the cesser of use, coupled with any act 
 clearly indicative of an intention to abandon the right, would have 
 the same effect without any reference to time. It is not so much 
 the duration of the cesser of enjoyment as the nature of the 
 act done by the grantee of the easement, or of the adverse act 
 acquiesced in by him and the intention in him which either the one 
 or the other indicates. The period of time is only material as one 
 element from which the grantee's intention to retain or abandon his 
 easement may be inferred against him ; and what period may be 
 
 (/) Erie, C.J., aad Williams, J., Jones (h) Staight y. Burn, L. R., 5 Ch. App. 
 
 T. Taplmg, 11 C. B., N. S. 289 ; 31 Law 163, t r. n n- n 
 
 J., C. P. 119—121 ; lb. 342. (0 Dyers' Co. y.King, L. &., 9 Eq. Ca. 
 
 \g) Binches v.Pask, U C. B., N. S. 438. 
 
 342 • 31 Law J., C. P. 121 ; lb. C. P. 347, (i) Wa^d y. Ward 7 Exoh. 838. 
 
 350 (k) Payne Y. Shedden, 1 M. & Bob. 338. 
 
 {I) Lmiell T. Smith, 3 0. B., N. S. 120. 
 
138 PEESCEIPTIVE EIGHTS. [CHAP. III. 
 
 sufficient in any particular case must depend on all the accompany- 
 ing circumstances (w). 
 
 A private right of way is not extinguished by the subsequent 
 dedication of the way to the public (ji). 
 
 Extinguishment of. ways of necessity. — A way by necessity is 
 commensurate only with the existence of such necessity, so that 
 when the necessity ceases the right of way also ceases. Where, 
 therefore, a person who has a way of necessity over ihe lands of 
 another is able to approach the land for which the way was used, 
 by passing over his own soU, the right of way is extinguished. 
 "When, by a subsequent purchase, he is enabled, to reach his 
 l^ouse, farm, or field, without, touching the land of his neighbour, the 
 necessity of going upon the land of the latter ceases, and, the neces- 
 sity ceasing, the right founded upon such necessity ceases also " (o). 
 But the easement revives again when the necessity for it revives (p.) 
 
 Suspension and, frnfeiture, of rights of .way and watercourse hy thA 
 non-performance of conditions annexed to the grant. — If a right of 
 way is granted to another, he contributing and paying his rateable 
 share and proportion of the expense of repairing the way, and repairs 
 become necessary, and the way is repaired by the grantor, and the 
 grantee refuses to pay his rateable proportion of the expense, his 
 right of way will become forfeited, or will be suspended, until the 
 accomplishment of the condition annexed to the grant ; but the 
 grantee has the right to use the way without paying anything until 
 repairs become necessary, and the cost of them has been ascertained, 
 and the grantee has refused to pay his share of the cost (q). If 
 a right of watercourse is granted, with certain limitations and 
 restrictions, and the grantee exceeds his limited right, and refuses 
 to conform to the restrictive conditions, he loses his right altogether, 
 until he makes his enjoyment of it conformable to the conditions of 
 grant (r). 
 
 Disuse of right to water. — ^A person who has a prescriptive right 
 to a flow of water to a pond or well does not lose his right merely 
 because he has ceased to use his pond or well, and has allowed it 
 to become choked with weeds (s). But, if having a right to foul 
 water he lies by, and allows other persons to incur expense, which 
 would be useless, if his right to foul the water continued, he must 
 be taken to have abandoned it (t). 
 
 Merger and exiinguishnent of eccsements and servitudes hy a unity 
 of ownership of the dominant and servient tenements. — Easements, 
 
 (m) Reg. T. Chrn-Uy, 12 Q. B. 519. (}) Duncmi v. Louch, 6 Q. B. 904. 
 
 WiUiams t. Eyton, 27 Law J., Exch. 176 ; (r) Cwwhwdl v. SusseU, 26 Law J., 
 
 2 H. & N. 771. Exch. 34. . 
 
 (ji) Duncam. v. Loueh, 6 Q. B. 904. (s) Male v. Oldffoyd, 14 M. & W. 792 ; 
 
 (o) Holmes v. Goring, 2 Bing. 76. Co. Litt. 114 b, cmte, p. 133. 
 
 (p) Pearson v. Spencer, 1 B. & S. 584 ; (i) Crosaley t. Lightowler, L. R., 3 Eq. 
 
 post, p. 140. Ca. 279 ; 2 Ch. App. 478. 
 
SECT. 1.] UNITY OF OWNERSHIP. 139 
 
 profits h. prendre, and servitudes, may become merged and extin- 
 guished in the general rights of property, when the land benefited 
 by, and the land burthened with, the easement, profit, or servitude, 
 pass into the hands of one common proprietor, or when the person 
 possessed of the incorporeal right becomes the owner of the land 
 over or upon which the right is exercised, for a man cannot, strictly 
 speaking, have an easement in his own land (w). Thus, if one man 
 erects on his own land a building which wrongfully darkens the 
 windows of the adjoining proprietor, and afterwards purchases the 
 house with the darkened windows, the tort is thenceforth purged 
 by the unity of ownership, and the easement or privilege of enjoy- 
 ing the unobstructed access of light and air annexed to the darkened 
 windows is extinguished, for, both houses being in the hand of one 
 person, he may deal with them as it seemeth best to him. If, 
 therefore, he afterwards grant or conveys the house with the 
 darkened windows, the grantee cannot lawfully complain of the 
 nuisance, and has no remedy for its abatement. If one of two 
 houses, which belonged to two different proprietors, has been built 
 so as wrongfully to overhang the other, and they afterwards come 
 into one hand, the wrong is now purged ; so that if the houses come 
 afterwards again into several hands, yet neither party can complain 
 of the wrong done before (x). 
 
 The obligation imposed in certain cases by custom, prescription, 
 or contract, upon the owner of an estate to maintain a fence for 
 the benefit of the owner or occupier of the adjoining land, is an 
 obligation in the nature of a servitude. Where, therefore, adjoin- 
 ing lands, which have once belonged to different persons, one of 
 whom is bound to repair the fences between the two, afterwards 
 becomes the property of the same person, the pre-existing obliga- 
 tion to repair the fences is destroyed by the unity of ownership. 
 And where the person who has so become the owner of the entirety 
 afterwards parts with one of the two closes, the obligation to repair 
 the fences will not revive unless express "words be introduced into 
 the deed of conveyance for that purpose (y). 
 
 If a man who has a right of common appurtenant (ante, p. 105) 
 becomes himself the owner of the land over which the right of 
 common extends, the incorporeal right is merged in the legal 
 ownership, and the land is discharged, for a man cannot have com- 
 mon in his own land (z) ; and if the owner afterwards grants the 
 land to which, before the extinguishment, the right of common was 
 attached, with all easements and profits thereunto " appertaining " 
 
 (a) Ante, p. 133—4. (v) Bayley, J., Soyle v. Tamlyn, 6 B. 
 
 (x) Sobins Y. Barnes, Hob. 131 ; EoUe's & C. 337. 
 Abr. CnsTOMS (D.), pi. 7. BattishUlv. (z) Nelson's case, Zljeon. 128. Saun- 
 
 Beed, 18 C. B. 696. ders r. Oliffe, Moore, 467. Tyringham's 
 
 case, i Rep. 38 a. 
 
140 PEESOKIPTIVE EIGHTS. [CHAP. III. 
 
 or " belonging," these words will not be sufficient to revive or re- 
 create the right («). 
 
 However, if a copyhold tenement, to which a right of common 
 is annexed, becomes vested in the lord by forfeiture, the right of 
 common is not extinguished ; it remains by custom annexed to the 
 customary tenement ; and though the right is in abeyance whilst 
 the estate remains in the lord, it is re-created or revived by a re- 
 grant of the estate as a copyhold tenement cum fertinentiis. If, 
 indeed, the lord grants, the fee to a copyholder, the estate can never 
 again become a copyhold estate, and the right of common is extin- 
 guished, "for the common first used -v^as gained by custom, and 
 annexed to the estate, and is lost with it " (&). 
 
 WhMt sort of unity ofovmersMp is essential to the extinguishment of 
 easements. — For the extinguishment of a prescriptive right by unity 
 of ownership and possession " it is requisite that the party should 
 have an estate in the lands a qua, and in the lands in qua, equal in 
 duration, quality, and all other circumstances " (c). " If," observes 
 Alderson, B., " I am seized of freehold premises, and possessed of 
 leasehold premises adjoining, and there has formerly been an ease- 
 ment enjoyed by the occupiers of the' one as against the occupiers 
 of the other, while the premises are in my hands the easement is 
 necessarily suspended, but it is not extinguished, because there is no 
 unity of seizin; and if I part with the premises, the right, not being 
 extinguished, will revive" {d). If a lessor of the dominant tenement 
 takes a week's tenancy of the servient tenement, he does not lose aU. 
 the servitudes: hewou.ld only lose the statutory mode of establishing 
 them ; and he would only lose that, wlien it could" be said that'at 
 the time of granting the lease he could grant the servitude (e) ', 
 
 Easements of necessity are not extinguished by unity of owner- 
 ship, and therefore, a necessary way over land continues, notwith- 
 standing a unity of ownership of the dominant and servient 
 tenements, and a subsequent conveyance of such tenements" to 
 separate proprietors (/) ; but this is not the case with regard to 
 mere easements of convenience, which are used from time to time 
 only, such as the right of taking water from a pump {g). 
 
 Hevival and re-creation of easements and servitudes which have 
 been extinguished or suspended hy v/nity of ownership. — When a,n ease- 
 ment or servitude has become extinct by reason of the , ownership 
 of the dominant and servient estates having become centred in the 
 
 {a) Clements t. Lambert, 1 Taunt. 204. (d) Thomas v. Thomas, 2 C. M. & R. 41. 
 
 Grymes v. Peacock. 1 Culstr. 17. (e) Bramwell, B., Warlurton v. Parke, 
 
 (6) Badger v. Ford, 3 B. & Aid. 155. 26 Law J., Exoh. 298 ; 2 H. & N. 64. 
 
 MMsamy. Hunter, Ye\y.\&Q. (/) Packer v. WeUstead, 2 Sid. 111. 
 
 (c) Rex T. Hermitage, Carth. 241. See Pearson v. Spencer, 1 B. & S. 584. 
 
 Ivimey v. Stacker, L. K., 1 Oh. App. 407 — (g) Polden v. Bastard, 32 L. J., Q. B. 
 
 8. Co. Litt. 114 b, a7i.te, p. 133—4. 372 ; L. K., 1 Q. B. 156. 
 
SECT. l.J REVIVAL OR RE-CREATION OF EASEMENTS. 141 
 
 same person, and he again conveys away that estate to which the 
 easement or servitude has helonged, the general rule is, that if he 
 merely grants such estate with the appurtenances, the easement is 
 not revived, unless it is a visible apparent easement, manifestly 
 necessary for the commodious occupation and enjoyment of the 
 property which is conveyed Qi) ; but if he grants it with all ease- 
 ments, &c., therewith used and enjoyed, that operates as a revival; 
 and any other words clearly intended to have such an effect will 
 operate in the same manner (i). If a right of way has become 
 extinguished by unity of ownership of the dominant and servient 
 tenements, and the messuage for which the right of way was 
 anciently used is subsequently severed from the land over which 
 the way passed, and is conveyed " with all ways, roads, rights of 
 road, paths, and passages thereto belonging, or in anywise apper- 
 taining," the extinct right of way is not revived, and does not pass 
 by the conveyance of the house, unless it is a way of necessity {k) ; 
 " for nothing is more clear than that, under the word ' appur- 
 tenances,' according to its legal sense, an easement which has 
 become extinct, or which does not exist in point of law by reason 
 of unity of ownership, does not pass. If the grantor wishes to 
 revive or create such a right, he must do it by express words, or 
 introduce the terms 'therewith used and enjoyed,' in which case 
 easements existing in point of fact, though not existing in point of 
 law, would be transferred to the grantee " {l). If, therefore, the 
 occupiers of farm A have a right of way, not being a way of 
 necessity, over farm B, and both farms come into the hands of one 
 and the same owner, and afterwards the two farms are again 
 severed and granted to two different grantees, the extinct right of 
 way will not be revived and re-created unless the grantor uses 
 language to show that he intended to create the easement de novo (m). 
 Nor will the use of the words "therewith used and enjoyed" 
 operate to pass a way, which was previously only used by the 
 grantor for the more convenient occupation of both tenements, and 
 which therefore never became attached to either (n). 
 
 But there is a distinction between what are termed discon- 
 tinuous easements, such as rights of way, and continuous easements, 
 such as drains and watercourses : for if the owner of a mHl, who 
 has a right of passage for water to his mill through the land of the 
 
 (K) Suffield V. Brown, ante, p. 84. SrocUehurst, ante, p. 86. Baird r. For- 
 
 » S- /l Vlklh^S '"^''' " *" W Si V. Gimson, 29 Law J., 
 
 ^(TZt^'v ijLS 1 Cr & M. 448 ; Q. £117. Z.« v. Anderson, 31 Law 
 
 WarlrXJM^hurstante, p. 85. But J., Ch 610 Pm-son r, Spencer IB. & 
 
 ZTwatts T. KeUon, L. K., 6 Ch. App. S 571 -P%^^ J- ^^^y ; DoM v. 
 
 /i\ D7 t „ r„™/.. « R A- Ad 794 («) Langley v. Hammond, L. R., 3 
 
 jlfl':fllt,i"Z:lll^^B:l eLL 16{ L^Qayford v. Mofat, L. 
 Shaw T. Eyre, Cro. Eliz. 570, Tf<wdfe t. E., 4 Ch. App. 133, 
 
142 PKESCEIPTIVE eights. [chap. III. 
 
 adjoining landowner, purcliases sucli adjoining land, and Ijeconies 
 the owner both of the mill and of the land over which his water- 
 course extends, and afterwards alienes the mill, the watercourse 
 and incorporeal right to the free passage of the water to the mill 
 are not extinguished, hut pass with the mill as appendant and 
 appurtenant thereto. So if a man hath a dye-house, and there is 
 water running thereto, and afterwards he purchaseth the land upon 
 which the stream runs, and subsequently re-sells such land, his 
 original right to the watercourse remains (o). But if a man hath a 
 stream of water which runneth in a leaden pipe through the adjoin- 
 ing land, and he buys the land where the pipe is, and cuts the pipe 
 and destroys it, the watercourse is thenceforth extinct, because he 
 thereby declares his intention that the watercourse and the land 
 shall no longer be enjoyed together (p). 
 
 Where a way has been extinguished by the unity of seizin of 
 two pstates, by the partition of tlie two the way is revived. Thus 
 it has been laid down as law, "that a way extinguished by unity 
 of possession is revivable afterwards upon a descent to two 
 daughters, where the land through which the way passed is allotted 
 to one, and the other land, to which the way belonged, is allotted 
 to the other sister ; and this allotment, -without specialty, to have 
 the way anciently used, is sufi&cieht to revive it " (g). 
 
 In the Eoman law, when the servitude was a non-apparent 
 servitude, it was merged and extinguished by unity of ownership 
 of the dominant and servient tenements ; but when it was an 
 apparent continuing servitude, such as a window enjoying light 
 and air, or lands having drains or watercourses; or maiiifest ways 
 rtmning through them, the servitude was hot extinguished : so that 
 if the tenements were subsequently severed, they would be respec- 
 tively benefited and burdened with their ancient, manifest, and 
 continuirig privileges and obligations (r). 
 
 By the French law, " servitudes cease when things are in such 
 a state that it is impossible any longer to make use of them.'' 
 They revive, if things are re-established in such a manner that they 
 can be made use of, unless a suf&cient space of time has already 
 elapsed to raise a presumption that the servitude has been extin- 
 guished. Every servitude is extinguished when the estate to which 
 it is due, and that which owes it, are united in the same hands. 
 Servitude is extinguished also by non-usage during thirty years (s). 
 
 Effect of the destruction or alteration of the dominant tenement. 
 — When mills or houses which have watercourses, or estovers, or 
 
 (o) Sury V. Pigot, Poph. 172; Palm. \q)l Jenk. Cent. Ca. 37. Bro, Abr, 
 
 iii. EXXINSUISHMENT, 15. 
 
 (j)) Popham, C.J., Lady Srown's Pdse, <»*) Dig. lib. 8, tit. 2, 3. ■ 
 
 cited Palm, 446. (s) Cod. Cir.Wt, 703—706. 
 
SECT. l.J KEPAIE OF WAYS, WATEECOUKSES, ETC. 1.43 
 
 other things appendant or appurtenant to them, be overthrown by 
 the wind, or burned by fire, or fall by any other act of God, if the 
 owner rebuilds them in the same manner as they stood before, they 
 shall have the same ancient rights appendant and appurtenant to 
 the new structure. And although the house or mill falls by the 
 act or default of the owner, or by the wrong of another, yet foras- 
 much as the durable materials remain, he may rebuild it without 
 the loss of any thing appendant or appurtenant to it ; but it 
 ought to be reconstructed upon the old foundations of the ancient 
 house (t). 
 
 Of the maintenance and repair of ways and watercourses. — Ever}' 
 grantee of a right of way or watercourse, to be exercised and enjoyed 
 over or through the land of the grantor, must himself repair the 
 way, if he desires to have it repaired and kept in repair for his use, 
 or if repairs are necessary to prevent the enjoyment of the right 
 becoming an annoyance and nuisance to the owner of the servient 
 tenement. " If I grant a way over my land I shall not be bound 
 to repair it. If I stop it, an action lies against me for the mis- 
 feasance, but for the bare nonfeasance, viz., in not repairing it, 
 when it is out of repair, no action at all lies (u). So if I grant a 
 right to a watercourse through my land, the grantee is bound to 
 keep the watercourse in proper order and repair ; and if it becomes 
 ruinous and obstructed, so that the water floods my land, the 
 grantee will be responsible for the nuisance " (x). Where a land- 
 owner is under an obligation to repair a road ratione tenurce, it is 
 doubtful whether an action can be maintained against him by a 
 person who has sustained damage by reason of the road being out 
 of repair; but an action has been held maintainable by a lord of a 
 manor, who relied on a prescription that he and all who had his 
 estate had a right to have a bridge kept in repair by the owner of 
 a Tnill (y). In executing the repairs, the person entitled to the 
 right of way is not justified in doing anything to increase the 
 burthen upon the servient tenement, or to enlarge or alter the 
 nature of the easement. He must use the way as it has always 
 previously been used. If it was a soft way over a ploughed field 
 he has no right to lay down gravel, and if it was a gravelled path 
 he has no right to lay down stones and make a hard macadamised 
 road, without the consent of the owner of the servient tenement. 
 
 (t) 4 Co 86 b 88 a omnibus servitutibua refectio ad eum 
 
 M Pomfveir'nMt, 1 Wms. Saund. pertiuet qui slbi servitutem adserit noa 
 
 322 ; ante, pp. 77, 86. ad eum cujus res semt. Gale on Base- 
 
 (x) Id. Egrermnt r. Pulman, M. & M. ments, 4* ed., p. 472. 
 
 404; cited 1 Q., B. 775. M'Swir^y v. (y) 11 Hen. 4, o. 28, p. 83 Your^ y 
 
 Eaynes, 4 Ir. Eq. E. 322, post, cb. 4 ; Dams, 31 Law J., Exch. 254 ; 7 H. «5 
 
 mte, p, 77. So in the eiTJIlaw : "fo N, 760, 
 
144 INFKINGEMEKT OF EIGHTS OF SERVITUDE. ' [CHAP. III. 
 
 SECTION II. 
 
 REMEDY FOE THE INFRINGEMENT OF INCORPOREAL RIGHTS. 
 
 Ahatement of obstructions to the enjoyment of easements and 
 ■profits a prendre. — An obstruction to the enjoyment of a right of 
 common, or of a private right of way, may be abated as a 
 nuisance (2). 
 
 , Of the right to distrain leasts wrongfully put upon a common. — 
 Where there is a colour of right to put beasts upon a common, one 
 commoner cannot distrain the cattle of another. If there is no 
 colour of right he may, and therefore he may distrain the beasts of 
 a stranger. In the case of levancy and coucliancy, one commoner 
 cannot distrain another's cattle for a surcharge, but must try by 
 a jury the number accommodated to the land. And where any 
 admeasurement lies between commoners to ascertain what quantity 
 of land the commoner has, one cannot distrain the cattle of the 
 other (a). But this general rule may be superseded, and a right to 
 distrain given by an agreement between commoners to restrain the 
 exercise of their privilege to certain specified portions of the 
 common field (&). , 
 
 Of actions for the infringement of incorporeal rights. — ^An injury 
 to a right imports a damage, though it does not cost the party one 
 farthing (c). " "Whenever," observes Parke, B., " an act done would 
 be evidence against the existence of a right, that is an injury to the 
 right, and the party injured may bring an action in respect of 
 it " ((£). " It is a vain thing to imagine a right without a remedy, 
 for want of right and want of remedy are reciprocal " (e). 
 
 Actions for talcing manure from commons. — A commoner may 
 maintain an action for an injury done to the common by taking 
 away from thence the manure which was dropped on it by the 
 cattle, though his proportion of the damage may be inappreciable, 
 for the repetition of a tortious act of this kind might eventually 
 be made the foundation of a right, to the serious injury of the other 
 commoners. The action may be brought by the lord, or by any one 
 of the commoners, and all the commoners may maintain separate 
 actions for the wrong (J). 
 
 Actions for sn.vrcharging of commons. — If one commoner puts 
 more cattle on the common than he is entitled to do, he is liable to 
 
 (z) Foit, ch. 4, g. 2. fd!) NicBin v. WiUiams, 10 Exch. 
 
 («) Hall V. Harding, 1 W. BI. 67i. 227. 
 
 (6) Whiteman v. King, 2 H. Bl. 4. (e) Holt, C.J., 2 Ld. Eaym. 953. 
 
 (c) Holt, C. J., Ashby v. ]Vhite, 2 Ld. (f) Pindar -n. Wadiworth, 2 East, 169, 
 Kaym. 955, Poioer t. Hill, 1 So. S?6, 
 
SECT. 2.] OBSTRUCTIONS TO PRIVATE RIGHT OF WAY. 145 
 
 be sued by all or any one of tbe other commoners who have a 
 right to depasture beasts upon the same common; and it is no 
 answer to the action that the plaintiff has himself surcharged the 
 common, or that the damage is insignificant, for the wrong-doer 
 might, by repeated torts of this sort, eventually enlarge his right. 
 But if the beasts have been put upon the common by the lord of 
 the manor, or with his licence and permission, the commoner 
 cannot maintain an action, unless he has sustained actual damage, 
 and can show that there was not a sufficiency of pasture for his 
 beasts (g). Any act that totally destroys the herbage, as feeding 
 innumerable rabbits on a common, will support an action against 
 the lord Qi). 
 
 Actions for obstructions to the enjoyment of a private right of 
 way. — Every person who sustains injury from an unknown and 
 dangerous obstruction to the enjoyment of a private right of way 
 is entitled to an action for damages, whether the obstruction be 
 caused by the owner of the land over which the way exists or by a 
 stranger, and whether the way be claimed by prescription or grant, 
 or be enjoyed only under a parol licence or permission, which has 
 not been revoked; for if a landowner gives his neighbour per- 
 mission to use a beaten track or path across the land of such land- 
 owner, and the latter places a dangerous obstruction in the path, 
 which causes injury to the licensee, he will be responsible in 
 • damages to the latter, if he has failed to give him timely notice 
 and warning of the obstruction; and, a fortiori, therefore, a 
 stranger will, although he may have created the obstruction with 
 the permission of the landowner (f). A continuing obstruction to 
 the exercise and enjoyment of an incorporeal right is a continuing 
 nuisance ; so that if an action has been brought, and damages 
 recovered for the injury, and the nuisance is not then abated, the 
 continuance of the obstruction constitutes a fresh injury, for which 
 another action may be brought, and so toties guoties, until the 
 obstruction is removed (Jc). 
 
 Of the parties to he made plaintiffs— Tenant and reversioner.— 
 The action for an injury to real property resulting from obstructions 
 to the enjoyment of profits a prendre, or easements appurtenant 
 to messuages or tenements, may be brought by the occupier in 
 respect of the immediate injury to his possessory mterest, and 
 by the reversioner in respect of the deterioration m the marketable 
 value of the property, when the damage done is of a permanent 
 
 An obstruction to the exercise of a private right of way 
 
 (g) HoUon v. Todd, 4 T. E. 73. M i^^orly. HUl^ C. B., N. S. 556; 
 
 ^S) V& T. Waking, 2 W. Bl. 1233. 333 ; po^, ch. 4. 
 
 T. 
 
 L 
 
146 INFEINGEMEJfT OF EIGHTS OF 8EEVITUDE. [CHAP. III. 
 
 appurtenant to lands or tenements which, if allowed to continue 
 unopposed, would be evidence against the enjoyment of the right, 
 is, of course, an injury to the reversioner, in respect of which an 
 action for damages is maintainable (I). " The erection of a waJl," 
 observes Maule, J., " across a way — assuming, of course, that there 
 was no contract as between the tenant and the defendant — would 
 be an injury to the reversion, although such wall might be pulled 
 down before the plaintiff became entitled to the actual possession 
 of the land ; and there might be such a locking and chaining of a 
 gate as would amount to as permanent an injury to the plaintiff's 
 reversionary interest as the building of a wall "(m). But a rever- 
 sioner cannot maintain an action against a stranger for merely 
 entering upon his land held by a tenant on lease, though the entry 
 be made in the exercise of an alleged right of way, such an act 
 during the existence of the tenancy not being necessarily injurious 
 to the reversion. Neither can he maintain an action in respect of 
 an obstruction of a public way leading to his property, unless he 
 can show, either that the obstruction is of a permanent character, 
 or that it would afford evidence against the existence of the right, 
 if it was allowed to continue unopposed. For the public injury 
 the landlord has a remedy, as one of the public, by indictment, and 
 he is not himself personally damnified merely by his tenant's 
 being temporarily prevented from enjoying his house in so ample 
 a manner as he might otherwise have done. But if the obstruction ' 
 appears to be of a permanent character, or professes, either by 
 notice affixed, or in any other way, to deny the public right, and 
 so lead to an opinion that no road was there, the value of the house 
 might be lowered in public estimation, and pecuniary loss might 
 follow, for which an action might be maintained by the rever- 
 sioner (n). 
 
 An action is also maintaiaable by the reversioner of ^ miU 
 demised to a tenant, for diversion by a stranger of water from the 
 mill-head ; for if the diversion was allowed to continue with the 
 knowledge of the reversioner, and without interruption from him 
 or his tenant, it might eventually be made the foundation of a legal 
 right to divert the water, to the serious injury of the inheritance. , 
 Where permanent damage has been done to property let on lease 
 by the erection of a wall or hoarding obstructing ancient lights, 
 and lessening the value of the property in the market, there is an 
 injury to the reversion, in respect of which the reversioner is 
 entitled to maintain an. action (o), as well as an injury to the 
 
 (0 Battwhitt T. Seed, 18 C. B. 696. field, 2 M. & Rob. 34 KidgiU v. Moor, 
 
 (m) KidgiU v. Moor, 9 0. B. 378. 9 C. B. 379. 
 
 (n) Dobson v. Blachnwre, 9 Q. B. 1004 ; (o) Jesser t. Clifford, i Burr. 2141 ; 8 
 
 16 Law J., Q. B, 283. Hopwood t, Schd- Leon. 209. ShatheO, v, HuteUnson, M, 
 
 & M, 850, 
 
SECT. 2.] ACTIONS FOE DAMAGES— PLEADINGS. 147 
 
 possession, in respect of which the occupier may sue. A wooden 
 hoarding of an unsubstantial character may cause permanent injury 
 to the property, by the obstruction it offers to the passage of light 
 and air, and may be an injury. to the reversioner {p). 
 
 If the windows of a house occupied by the servant of the owner 
 have been unlawfully darkened or obstructed, the owner may sue 
 for the immediate injury as the occupier of the house, the occupa- 
 tion of the servant being the occupation of the master {g) : but if 
 the house is in the possession of a lessee paying rent, the action 
 should be brought in respect of the injury to the reversion ; and if 
 there is a lease in writing, it must be produced (r). 
 
 Parties to he made defendants. — If a man erects on his own land 
 an obstruction to the access of light and air to his neighbour's 
 ancient windows, and then demises the land with the obstruction 
 upon it, an action will lie both against him and his tenant for the 
 continuance of the obstruction {s). And so it wiU lie against the 
 landlord for a permanent nuisance, although the nuisance was 
 created before the reversion came to him, i.e., if he knew of it, and 
 might have determined the tenancy before the injury happened, as 
 in the case of a tenancy from year to year (t). A clerk who has 
 superintended the erection of a building by which ancient lights 
 were darkened, and who alone directed the workmen, may be joined 
 as a co-defendant with the contractor who appointed him to super- 
 intend the progress of the building (u). 
 
 The actual occupier of lands burthened with the servitude of 
 keeping up a boundary-fence for the benefit of the adjoining occu- 
 pier or landowner is the proper party to be made defendant in an 
 action for neglecting to maintain and repair the fence, for it is the 
 duty of the actual occupier, and not of the landlord, to keep up the 
 fences (x). If the occupier of a house or land, having control over 
 aU workmen upon his premises, suffers such workmen to bring 
 stone and earth therefrom, and place them in a highway adjoining 
 the house, he will be responsible for any damage that may be 
 caused to third parties by the obstruction (y) ; and so also will the 
 workman who actually placed the obstruction in the thoroughfare. 
 
 Of the plaintiff's declaration — Venue — Statement of the cause of 
 action.— The venue in declarations for obstructions to the enjoy- 
 ment of profits a prendre and easements is local, and the cause of 
 action must be laid in the county in which it arose. When the 
 
 {p) Metrop. Association v. Fetch, 5 C. C P. 154 ; L. ». f C- P, 198. 
 B., N. S 504- 27 Law J., C. P. 332. («) WiUon y. Peto, 6 Moore, i1. And 
 
 (g) Bertie Y.Bmummt, 16 ■p.3&t,ZZ. ^^^ P'"*',''^'' rr . ^ m u <!ia 
 r CotUHU V. HolH 4 B. & C. 465. (x) CheetMm r. Sancton 4 T. E. 318. 
 
 <) Rosewea t. Pri<^, 2 Salt. 460 ; 12 BuUer, J B^der y Srmth 3 T. E. 768. 
 
 jyio^ ggg Sooth T. Wilson, 1 B. & Aid. 59. 
 
 (t) Gcmdy T. Juhber. 33 L. J., Q. B. (y) Burgess v. Gray, 1 C. B. 591 ; post, 
 
 151. Soixhy V, Manchester Rwy., 38 L. J., ch, 4, a. 2, 
 
 1/ 2 
 
148 DISTURBANCE OF EASEMENTS. [CHAP. Ill 
 
 easement is claimed by grant, it is not necessary to mention or 
 refer to the deed of grant in the declaration. It is enough for the 
 plaintiff to allege that he is entitled to it by reason of his posses- 
 sion of a particular messuage or land {z). But the plaintiff's right 
 to the enjoyment of the easement should in aU cases be asserted 
 on the face of the declaration (a). In all actions for the disturb- 
 ance of an easement or privilege, the obstruction ought to be 
 charged on the pleadings in the thing itself in which the party has 
 a right. Thus, if the declaration complains that the plaintiff's 
 right of common was obstructed by the locking of a gate, or his 
 right to take water from a cistern by the blocking up of a way or 
 passage leading to the cistern, the declaration should assert and set 
 forth the plaintiff's right of common, or right of taking water from" 
 the cistern, by reason of his possession of a messuage, tenement, 
 or land, and allege that the plaintiff had a right to go through the 
 door with his cattle to enjoy his right of common, or along the way 
 or passage in order to take water from the cistern (h). 
 
 The plaintiff must show how his right arises; but it is sufficient 
 for the plaintiff to declare on his possession of a right of way, or a 
 right of common, or other profit or easement, by describing it, and 
 claiming it by reason of his possession of the land. His possession 
 is enough ; and it is unnecessary in an action for an injury to it to 
 show whether it arises from grant or prescription. So, in the case 
 of an injury to a market or a ferry. In the case of an injury to the 
 plaintiff's mill, where the plaintiff has a right to have the grain of 
 others ground there by tenure, prescription, or custom, it is enough 
 to allege the plaintiff's possession and the defendant's obligation to 
 grind ; which is, indeed, part of the plaintiff's right in a general 
 form, as by reason of the possession of a house, or that aU the 
 inhabitants ought to grind there, and ' that the defendant is an 
 inhabitant, which is a description of tbe right by tenure in the one 
 case, and by custom in another. 
 
 " There is another class of cases, in which an obligation is cast 
 on the defendant to repair a way to a close of the plaintiff over the 
 defendant's land, to repair fences against the plaintiff's land, or to 
 repair a wall adjoining the plaintiff's house. In these cases, it is 
 enough to state in a general way the defendant's obligation by 
 reason of his possession of his landy or wall, or an equivalent aver- 
 ment. One reason given is, that in such cases a charge is laid upon 
 the right of another, which, it may be, the plaintiff cannot parti- 
 cularly know " (c). In a declaration by a plaintiff for an injury 
 
 («) NoHham v. Hurley, 22 Law J,, Q. (6) Tebbutt v. Sdhy, 6 Ad. & B. 786. 
 
 B. 185 ; 1 BU. & Bl. 665. (c) Parke, B., Metcalfe v. Hetherimgton, 
 
 {a) Whaley t. Leung, 2 H. & N. 476 ; 11 Exch. 271 ; 24 Law J., Exoh. 319. 
 
 27 Law J., Exch. 422. Zaing t. WAaley, See HwrtnaU v. Byde Commissioners, 33 
 
 28 ib. 685. L. J., Q. B. 39. 
 
-SECT. 2.] ACTIONS FOR DAMAGES— PLEADINGS. 149 
 
 sustained by him from an obstruction placed in a private way, 
 which-the plaintiff was authorised to use by the parol permission 
 of the owner of the soil, it is enough for the plaintiff to describe ^he 
 road, and assert that he had, by the permission of the owner and 
 occupier of the soil, a right to use the road, and that the defendant 
 wrongfully placed an obstruction in the road, per quod the plaintiff 
 was injured {d). 
 
 Where a declaration by a reversioner alleged that the plaintiff 
 was entitled to a right of way for his tenants over a certain close of 
 the defendant, and that the defendant wrongfully chained and 
 fastened a certain gate standing in and across the way, and wrong- 
 fully kept the same' fastened, and so obstructed the way, whereby 
 the plaintiff was iajured in his reversionary estate, it was held 
 that the declaration set forth a sufficient cause of action, and that 
 the plaiutiff's reversionary interest might be injured by the acts 
 complained of (e). 
 
 If the declaration is for the obstruction of a flow of water 
 through a drain, it should set forth the right of the plaintiff to the 
 flow of water through the drain, and that the defendant wrongfully 
 . obstructed it, stating the nature of the obstruction, and showing 
 that the lands of the plaintiff became flooded and injured, and his 
 crops damaged and destroyed, and that he was put to expense in 
 drainiag, off the water, and restoring his land to a state of good 
 cultivation, claiming damages (/). 
 
 A declaration setting forth the plaintiff's possession of a house, 
 and alleging that the defendant wrongfully excavated beneath, or 
 contiguous to, the foundations of the house, without leaving proper 
 support for the said foundations, and thereby caused the house to 
 fall ; or that he wrongfully pulled down and destroyed the founda- 
 tions of the house ; or that he dug beneath the house and under- 
 mined it, so that the walls cracked, and the plaintiff was obliged to 
 remove with his family, and hire another house, discloses a good 
 cause of action (g). If it appears on the face of the declaration that 
 the alleged \yrongful act was done on the adjoining land, the decla- 
 ration is not now demurrable, because it does not show any right to 
 support from the adjoining land, unless it appears upon the face of 
 the declaration that the alleged wrongful act was done by the 
 defendant himself on his own land. If the defendant does not 
 appear upon the face of the declaration to be the owner of the 
 adjoining land, he is, primd facie, a wrongdoer ; for, if a house is 
 de facto supported by the soil of a neighbour, this is a suf&cient 
 
 ( 
 
 {d) Corly V. HUl, 4 C. B., N. S. 556 ; (/) Hewhm x.Shippcm,5 B. & C. 221. 
 
 27 Law J., C. P. 318. And see further, (g) Sogers y. Baylor, 2^H. & N. 829 ; 
 
 ante, pp. 71, 145. Holford v. HanUmon, 27 Law J., Eich. 175. Sonom^^r. Back- 
 
 5 Q. B. 584. house, ante, p. 58, 9 ti. L. 0. oOd. 
 
 (e) ^idgiil V. Mom; 9 C. B. 378. 
 
150 DISTUEBANCE OF EASEMENTS, ETC. [CHAP. III. 
 
 title to the support against any one but that neighbour, or one 
 claiming under him. A man who should prop his house up by a 
 shore, resting on his neighbour's ground, would have a right of 
 action against a stranger who, by removing it, should cause the 
 house to fall, though he could have no action against his neighbour 
 if the latter took it away and caused the same damage (A). 
 
 If the damaged buildings are in the possession of tenants to 
 whom they have been demised, and the plaintiff claims compen- 
 sation for damage done to his reversion, the declaration should set 
 forth that the buildings are in the occupation of certain tenants of 
 the plaintiff, that the reversion of the buildings is vested in the 
 plaintiff, and that the plaintiff, by reason of his reversionary interest 
 in them, is of right entitled to have the buildings supported laterally 
 by the adjoining land of the defendant, and showing, that by the 
 wrongful withdrawal of the necessary support, the buildings became 
 uninhabitable, and the plaintiff was injured in his reversionary- 
 estate (i). 
 
 Decleurations for an obstruction to the plaintiff's lights or privileged 
 windows should set forth the plaintiff's possession of a dwelling- 
 house, describing it by name and situation, and of certain windows 
 belonging to the dweUing-house, and that the plaintiff had a right 
 to the free passage for light across the defendant's land to the 
 windows, and that the defendant wrongfully erected a wall or 
 building so near to the windows that the light was prevented from 
 passing to the windows, whereby they became darkened. When 
 the declaration is for an injury to the plaintiff's reversionary "estate, 
 it should allege that the plaintiff was entitled to the reversion of 
 the dwelling-house, and that, by means of the obstruction to the 
 free passage of light caused by the defendant, the plaintiff was 
 injured in his reversionary estate (k). 
 
 What may he given in evidence v/nder the plea of not guilty. — In 
 actions for obstructions to the enjoyment of easements and profits 
 Li prendre, the plea of not guilty operates as a denial only of the 
 obstruction, and not of the plaintiff's right ; and no other defence 
 than such denial is admissible under that plea. All other pleas 
 in denial must take issue on some particular matter of fact alleged 
 in the declaration. If the facts stated in the indictment are not 
 intended to be admitted, they must be expressly traversed and 
 denied (f). 
 
 Not gwilty hy statute. — ^When the act complained of has been 
 
 (A) Jewries \. WaUams, 5 Exch. 800 ; OaHer, 4 H. & N. 153 ; 28 Law J., 
 20 Law J., Exch. 14. Exch. 182. 
 
 (i) Bonomi v. Backhome, Ell. BI. & Ell. (h) Mebrop. Association v. Fetch, 5 0. 
 
 622 ; 28 Law J., Q. B. 378. Bachhome B., N. S. 504 ; 27 Law J., C. P. 330. 
 T. Bonomi, 9 H. L, C. 503. Bibhy v. {1} Beg. Gen. HU. Term, 16 Vict. 1 
 
 Ell. & Bl., App. lixxi. 
 
SECT. 2.] ACTIONS — PLEADINGS— EVIDENCE. 151 
 
 done in the exercise of some statutory authority, enabling the 
 defendant to give the special circumstances of justification in 
 evidence under the plea of not guUty, the defendant's right to do the 
 act, in the exercise of the powers conferred upon him by statute, 
 may be given in evidence under the plea of not guilty, provided he 
 has inserted " by statute " in the margin of his plea (m). 
 
 Traverse of the right. — If the defendant denies the existence of 
 the right claimed by the plaintiff, he must, as we have seen, 
 traverse it in the very words in which it is asserted in the declara- 
 tion {ante, p. 73). Under a traverse of the right, the defendant may 
 show that the right was granted by a mere parol licence or agree- 
 ment, not under seal, and that the defendant, finding the exercise 
 and enjoyment of the right troublesome and inconvenient, had 
 revoked the licence, or refused to perform the agreement, and had 
 prevented any further exercise and enjoyment of the privilege (n). 
 
 Plea of leave and licence. — Under a plea of leave and licence it 
 may be shown that the plaintiff, having an easement of light and 
 air to his ancient windows across the defendant's area, gave the 
 defendant a parol licence or permission to put a skylight over his 
 area, and that the licence had been acted upon and executed by the 
 defendant, and the skylight built, and that the building of the 
 skylight caused the injury of which the plaintiff complaias (o). 
 
 The evidence at the trial wUl, of course, depend upon the pleas 
 upon the record. Under the plea of not guilty, the plaintiff must 
 prove that the injurious act was done by the defendant, or by his 
 procurement {p). If the existence of the iacorporeal right is denied 
 by the pleadings, the plaintiff must establish his title by proof of a 
 grant, express or implied, or by proof of immemorial enjoyment 
 {ante, p. 84), or of uninterrupted user and enjoyment as of right {ante, 
 pp. 114r— 133), for the fuU period required by the Prescription Act. 
 
 Proof of enjoyment so as to gain a prescriptive title at common lavj, 
 or under the Prescription Act, must be given in the mode previously 
 pointed out. If aU the acts of user and enjoyment have taken 
 place during the occupation of the land by tenants, their submitting 
 to them will not, as we have seen, bind the owner of the land, with- 
 out proof of his being also aware of them ; but if the acts of user 
 have been open and notorious, and have gone on for a great length 
 of time, a jury may presume therefrom that the owner knew of 
 them {q). All circumstances tending to show that no grant could 
 have ever existed, or have lawfully been made, are, as we have 
 seen, admissible in evidence, to show that there was no enjoyment 
 
 (m) Ante, p. 73, n. ; and post, ch. 21. (o) Winter v. Brochwell, mte, p. 134. 
 
 22U Cocker v. Cowpfr, 1 0. M. & E. (p) Ante, p. 74 ; post, ch 20, s. 1. 
 
 418. Wood T. Leadbitter, 13 M. & W. {g) D<mf v. SUjpUm, 7 0. & P. 570 , 
 
 838.J ' , «»*«» P- '■'■°- 
 
152 DISTURBANCE OF EASEMENTS. [CHAP. III. 
 
 as of right withiii the meaning of the statute {ante, pp. 114, 119). 
 When the plaintiff rests his claim to an easement upon the 
 defendant's land, upon a prescriptive title from twenty years' 
 enjoyment as of right, and without interruption, the claim may be 
 answered by proof of a licence, written or parol, for a limited 
 period, falling short of the twenty years relied upon ; for every time 
 that leave is asked for and obtained there is, as we have seen, a 
 break in the continuance of the enjoyment {ante, p. 130). 
 
 If the plaintiff proves a larger and more extended right than he 
 claims in his declaration, the proof is not objectionable on the . 
 ground of variance, provided the right claimed is included in the 
 more extended right proved, and is not inconsistent with it (r). 
 
 Proof of right of way. — Proof that a person has used away 
 for various purposes, whenever he rec[uired it, for twenty years, 
 is primd facie evidence of a right of way for all purposes, from 
 which a jury may infer a general right; but proof of user for 
 one purpose, or for particular purposes, will not raise an inference 
 of a general right (s). Proof of the exercise of a jight of way 
 for twelve years for all purposes, and for, twenty years for the only 
 purposes for which the person using it required it, is sufficient 
 to establish the existence* of a general right {t). When the right 
 depends upon express grant, the nature and extent of the right are ' 
 defined by the express terms of the grant {u). When it rests upon 
 user and enjoyment, the extent of the right is defined and limited 
 by the extent of the user and enjoyment ; and it is then, in general, 
 a question for the jury in each particular case as to whether the 
 evidence of user shows a general right of way, both for horses and 
 carriages, and for all reasonable and necessary purposes, or only a 
 restricted' and limited right for a particular purpose (-y). If the 
 plaintiff has a right to go backwards and forwards with carts and 
 carriages, and it is reasonable that -he should have room to turn 
 round, he will have. a right to go on the adjoining land, if the road 
 is not wide enough for the purpose ; but what is a reasonable exer- 
 cise of a right of way is a question for a jury (w) ; and therefore,, 
 where the jury found that the carting by A over another person's 
 land of hay, gro-^n partly on land to which it was admitted there 
 was a right of way over such other person's land, and also partly 
 on land beyond, to which no such right was appurtenant, was a 
 reasonable boni fide exercise of right by A, the court refused to 
 interfere {x).. 
 
 Proof of a right to the free access of light. — The right to the free 
 
 (r) Duncan v.Louch, 6 Q. B. 914. (v) Ballwrd f. Dyson, 1 Taunt. 287. 
 
 (s) Cmdmgv.JSigginson, iM.&W. 255. Bower v. Hill, 2 So. 535. Brunton v. 
 
 {t) Dwre V. Eeathoote,i5 Law J., Exoh. Hall, 1 G. & D. 207. 
 
 245. .(w) Hdvihms v. Carbines, 27 Law J,, 
 
 («) See Cousens v. Hall, L. E., 12 Eq. Exch. 44. 
 
 Ca. 366. (x) WiUiamy.Jams,h.Il.,2C.F.577.. 
 
SECT. 2.] ACTIONS FOR DAMAGES— EVIDENCE. 153 
 
 access of light across the adjoining land of a neighbouring pro- 
 prietor may be established, as we have seen {ante, pp. 125, 126), by 
 proof of uninterrupted user and enjoyment for twenty years. But 
 a right to the free access of light from uninterrupted user and enjoy- 
 ment does not extend to open spaces of ground and yards or 
 gardens (y). Thus, where a saw-pit and timber-yard had been 
 placed close to the edge of the adjoining property, it was held that 
 the pit and yard might be darkened at any time, and the access of 
 light thereto impeded, by the erection of buildings by the adjoining 
 landowner (z). So a right to the free passage of air over vacant land 
 to a mill cannot, as we have seen, be acquired by mere enjoyment, 
 however long continued, as the owner of the land has no means of 
 interrupting the free current of air, and the law raises no presump- 
 tion of a grant from enjoyment had under such circumstances (a). 
 
 Proof of obstruction to a right of way — Erection of gates. — If a 
 gate is erected across a private footway by the owner of the soil, so 
 as to afford no actual olastruction to the use of the way by the 
 grantee, an action would not be maintainable against the land- 
 owner so erecting the gate ; but in the case of the grant of a way for 
 horses and carriages, and the use of the way by the grantee free from 
 gates, a gate could not afterwards be lawfully placed across the way (6). 
 
 Proof of obstructions to the access of light. — To establish a cause 
 of action for an obstriiction to the access of light to the plaintiff's 
 ancient windows, the plaintiff must prove a substantial privation of 
 light, sufficient to render the occupation of his house comparatively 
 uncomfortable (c), or to prevent him from carrying on his business 
 as beneficially and profitably as he had formerly done. The mere 
 diminution of a ray or two of light will not suffice for the main- 
 tenance of an action (d). When the action is brought by a rever- 
 sioner in respect of an injury to his reversionary estate, it must be 
 shown that the obstruction is of such a nature as to cause a per- 
 manent injury to the property (e). The Metropolitan Building Act, 
 18 & 19 Vict. c. 122, which by s. 83 gives a right to the buflding 
 owner to raise any structure, &c., upon condition of making good 
 all damage occasioned thereby to the adjoining premises, does not 
 authorise the erecting of such a structure as will obstruct ancient 
 lights in the adjoining premises (/). 
 
 Proof of the right to an ancient weir and fishery in a navi- 
 gable wen— The right to have a weir in the channel of a navigable 
 
 («) Potts V. Srrdth, L. E., 6 Eq. Ca. 311. Pm-Jcer v. Smith, 5 *• 438. PWnjfe y. 
 
 (z) Boberts r. Ma^ord, 1 M. & Bob. 230. Wernham, 7 C. & P. 378. WelU v. Ody, 
 
 (a) Webb \. Bird, ante, p. 119. »*■ 410. i, ^ i k r. 
 
 6 James v. ffayward, W. Jones, 221 ; (e)Metrop. Assoaahon ^- P^l<" 5 C 
 
 Cro Car 184 B., N. S. 504 ; see omte, p. 146. 
 
 (c) See Kelk v. Pewrsmi, L. B., 6 Ch. (/) CrofU v. Haldam, L. E., 2 Q, B. 
 App. 809. 194- 
 
 (d) Back V. Stacey, 2 C. & P. 466. 
 
154 . DISTURBANCE OF EASEMENTS, ETC. ■ [CHAP. III. 
 
 river for the purpose of catching fish is, as we have seen, a right 
 founded on grant or prescription ; and the right to ancient weirs 
 has in some instances been legalised by statute, although they 
 totally obstruct the navigation of the river (g). A several fishery in 
 a tidal river, the waters of which have permanently receded from 
 one channel and flow in another, cannot be followed from the old 
 to the new channel (K). 
 
 Proof of the servitude of maintaining and repairing fences. — 
 The mere fact of an owner or occupier having repaired a fence does 
 not, as we have seen, afford any ground for presuming that his land 
 was burthened with the servitude of keeping up the fence for 
 the benefit of his neighbour; because it is for his own benefit 
 to keep up a fence for the purpose of preventkig his own cattle 
 from straying from his land, and committing trespasses upon the 
 adjointag land. If it be proved that the defendant had been 
 threatened with legal proceedings if he did not repair the fences, or 
 that, if he did not repair, and the plaintiff became damnified iu 
 consequence of his cattle trespassing upon the lands of other persons, 
 the plaintiff would look to him for compensation, and that the 
 defendant then repaired, this would be some evidence of the defen- 
 dant's being under a legal obligation to maintain and repair the fence. 
 
 An allegation in a declaration that the defendant, by reason of 
 his possession of a particular close, was bound to repair a fence 
 dividing such close from the adjoining land, is proved by the 
 production of a deed whereby the defendant has undertaken the 
 performance of that duty (z). 
 
 Inadmissibility in evidence of statements amd declarations hy a 
 tenant in derogation of the title of his landlord. — " You cannot," 
 observes Lord Campbell, " admit in evidence the declarations of a 
 tenant which derogate from the title of the reversioner. It would 
 be very mischievous if it were in the power of a tenant to destroy 
 a profit k prendre belonging to the land which he occupies, or to 
 impose a servitude upon it. There is no difference in this respect 
 between destroying an easement and creating one. If the 
 tenant might say that the land enjoyed no right of way, he might 
 also say that it was liable to an easement for taking water, or to a 
 profit k prendre, turbary, or other common, and create evidence of ser- 
 vitude against the reversioner. The acquiescence of a tenant cannot 
 prejudice his landlord (/ ), and d fortiori, his declarations cannot" Qc). 
 
 Of the damages recoverable in actions for the infringement of 
 incorporeal rights (I). — ^Wherever the exercise or enjoyment of an 
 
 {g) WiUiamsy. WUcox,8 Ad. &'E.SZe. (j) Domidy. North, 11 East, 372. 
 
 See j3os«, oh. 4, sect. 2. (S) Pa/pendich v. Bridgwater, 5 EJl. & 
 
 (h) Mayor, ^c, of Ga/i'lisle v. Graham, Bl. 177. 
 
 L.E., 4 Exch. 361 ; 38 L. J., Exoh. 226. (l) As to damages in general, Beeuoj*. 
 
 (i) BoyUr.T(mayn,QKkG.ZZi. ch. 22, s. 1. > J"h 
 
SECT. 2.] DAMAGES EECOVEEABLE. 155 
 
 incorporeal right lias been obstructed, damages are, as we have seen, 
 recoverable, though no actual or specific damage in point of fact 
 can be proved : for every unresisted obstruction to the enjoyment 
 of the right would be evidence against the existence of the right, 
 and therefore highly injurious to the person claiming it. Therefore 
 an action may be maintained by a commoner for an injury done to 
 his common, without proving actual damage. And whenever there 
 has been an obstruction to the exercise of a right of way, which, if 
 acquiesced in for twenty years, would be evidence against the 
 existence of the right, there is an injury, in respect of which 
 damages are recoverable, although there is no proof of actual 
 pecuniary damage (m). 
 
 Where the occupier of a field, who had a right to have a- fence 
 separating his field from the adjoining land repaired at the. expense 
 of the adjoining occupier, took in the horse of a neighbour for the 
 night, and the horse got through the boundary-fence into the 
 servient tenement, and fell into a ditch and was killed, it was held 
 that the occupier of the dominant tenement was entitled to recover 
 the full value of the horse (n). And where the plaintiif brought 
 an action against the defendant for the non-repair of the fences of 
 the latter, whereby the plaintiff's horses escaped into the defendant's 
 close and were there killed by the falling of a hay- stack, it was held 
 that the damage was not too remote, and that there is no distinction 
 between the smothering of cattle by the accidental falling of a hay- 
 stack, and their being drowned by tumbling into a ditch (o). 
 
 In all cases of nuisance from obstructions to the free access of 
 light and air to ancient windows {]post, ch. 4), damages are recover- 
 able by the reversioner, because the injury is an injury to a right ; 
 and if the reversioner were to be prevented from bringing his action 
 during the existence of the lease, the testimony of the witnesses who 
 could speak to the windows being ancient windows might be lost {p). 
 When an action is brought by a reversioner for an injury to his 
 reversionary interest, from a temporary obstruction' of a right of 
 way theretofore used by the tenants and occupiers of his land, 
 , nominal damages only are, in general, recovered in the first instance, 
 as the defendant is liable to another action every day that he 
 continues the obstruction ; and it is to be presumed that he will 
 immediately remove it ; but if he persists in continuing the obstruc- 
 tion, and a second action is brought for the continuance of the 
 nuisance, exemplary damages will be given, in order to compel him 
 to abate it (g). 
 
 (m) Bower T. HOI, 1 Se. 533 ; 1 B. N. Hutchimton, M. & M. 352. Jester v. 
 
 C. 549 ; ante, pp. 7, 8 ; post, ch. 22. 6ifford,4: Burr 2141. 
 
 (n) Booth 7. Wilson, 1 B. & Aid. 59 ; (q) Hopwood v. ScUjkld, 2 M. & Kob. 
 
 ants p 125 35. BattisUll v. £md, 18 C. B. 715 ; 
 
 (o) Powd V. Salishwry, 2 Y. & J. 391. 26 Law J., 0. P. 290 ; pott, oh. 4, s. 2. 
 
 Ip) Ld. Tenterden, C. J., ShadweU v. 
 
156 DISTUEBANCE OF EASEMENTS. [CHAP. III. 
 
 Injunction to prevent the disturbance of easements granted hy 
 paTol. — If a landowner verbally agrees to allow an adjoining pro- 
 prietor a right of way, or a right to the passage of water through 
 his land, and the enjoyment of the privilege involves the outlay of 
 money, and the consenting landowner allows the licensee or person 
 to whom the privilege has been granted to expend money in 
 making a road or laying down a railway, or constructing a water- 
 course, or erecting buildings, the Court of Chancery will interfere 
 by injunction to prevent such consenting landowner from disturb- 
 ing the enjoyment of the way or watercourse, or easement, so 
 verbally granted (r). And where works involving expense are 
 made on land belonging to an incorporated company, on a spot 
 where the company may be considered personally present, where 
 their premises are situated and their operations carried oh, the 
 company, though an incorporated body, must be considered, for all 
 purposes of knowledge and acquiescence, to be in the same position 
 as a private individual, and will be bound in the same way (s). 
 In cases of this sort, where a person has obtained an equitable 
 right to the enjoyment of an easement or privilege by reason of 
 the expenditure of his money on the faith of a verbal promise 
 or understanding, but has no legal title to any incorporeal right 
 over the land of another, his equitable claim may, in general, be 
 got rid of by tendering him the amount of his expenditure before 
 the privilege is withdrawn or the enjoyment of it has been inter- 
 rupted. 
 
 If a tramway is made across land with the consent, of the owner 
 of the fee, and is used for a number of years on payment of rent, 
 the Court of Chancery will interfere to prevent an arbitrary in- 
 crease of the rent, and prevent the licensee from being deprived of 
 the use of the tramway on proper compensation being paid to the 
 owner of the soil for the enjoyment of the way (t). 
 
 If the owner in fee of land stands by and allows another person 
 to erect a building upon his land, and afterwards agrees with him as 
 to the rent to be paid for it, neither he nor any person claiming 
 under him can deprive the person who has so laid out his money of 
 the use of the building (m). And if an adjoining landowner. assents 
 to the rebuilding of a house upon a certain plan, with an increased 
 elevation, or with an enlargement of ancient windows, or the 
 opening of new windows, and the house is accordingly rebuilt on 
 
 {r) 2 Eq. Gas. Abr. 522, pi. 3. Jack- BanhaH t. Tennent, L, E., 10 Eq. Ca. 
 
 son T. Oator, 5 Ves. 689. PoweU v. 141. 
 
 Thomas, 6 Hare, 300. Mold v. Wheat- (s) Laird v. Birhenliead Rail. Co., 1 
 
 croft, 27 Beav. 510. Duke of Devonshire Johns. SOO ; 29 Law J., Oh. 218. 
 
 T. Elgin, W Law J., Ch. 495. East Ind. (t) Mold v. Wheatcroft, 27 Beav. 510. 
 
 Co. T. ■ Vincent, 2 Atk. . 82. Dames v. («) Damn v. Spmrier, 7 Ves. 236. 
 MdrshaU, 10 C. B., :N'. S. 697. See 
 
SECT. 2.] REMEDY BY INJUNCTION. 157 
 
 the approved plan, the landowner cannot afterwards object to the 
 alterations (y). 
 
 Where an easement has been bargained for and sold by parol, 
 and been enjoyed for years by the purchaser thereof, the court will 
 restrain the vendor and any persons claiming under him (not being 
 a purchaser of the land for value without notice), from disturbing 
 or interrupting the enjoyment of the privilege. Thus, where A sold 
 to his neighbour B the right of using two chimneys in A's waU for 
 a certain consideration, which was paid, and the chimneys used for 
 several years, and C purchased A's house without notice of the 
 right, the court held that, there being fourteen chimney-pots on the 
 wall, and only twelve flues in A's house, C was put on inquiry, that 
 he had qonstructive notice of the right, and an injunction was 
 granted to restrain him from stopping up the two chimneys leading 
 to the two extra chimney-pots (x). 
 
 Whenever a licensee has enjoyed an easement for several years, 
 the court will not allow such enjoyment to be summarily inter- 
 fered with and the licensee put to great immediate inconvenience, 
 but win by injunction prevent the disturbance of the privilege and 
 put the question in dispute between the parties in a proper course 
 of investigation (y). 
 
 InjuThction to prevent obstructions to the free access of light to 
 windows. — If a building has been commenced which, when carried 
 up and finished, will cause a serious (2) obstruction to the passage 
 of light and air to ancient windows, the owner of the windows may 
 obtain an injunction to restrain the erection of the building (a), and 
 there is no distinction in this respect between houses in a town and 
 in the country (6). But the' court will not, upon an ex parte appli- 
 cation for an iajunction, order a building which is in course of erection 
 to be pulled down, as that might do irreparable injury to the person 
 erectiag it, if on the final hearing of the matter it shoidd be found 
 that the right was with him. The proper order wUl be for the 
 buUdiag not to be further proceeded with, until the rights of the 
 parties have been decided by the proper tribunal (c). 
 
 " Whenever it is shown that the comfort or enjoyment of a man 
 or his family in the occupation of his house is seriously interfered 
 with {d), and still more where he is prevented from carrying on his 
 business with the same degree of convenience and advantage as 
 
 (v) Ootchmj V. Basset, 32 Law J., Ch. (a) ArcMne v. Kelh,J Gift 683. 
 
 2gg ■ Bach V. Stacy, 2 Russ. 121. Sutton v. 
 
 (X) Hervey v. Smith, 22 Beav. 299 ; 1 LdMontfort, i Sim. 659. 
 
 K & J 392 (^) Martin v. Headon, Ii. E., 2 Eq. 
 
 '(y) kervey v. Smith, vt tvip. See Ca 425. 
 
 L^km amd North Western BaU. v. Zan- (c) Byder v. Berithmi, 1 Ves sen. 543. 
 
 cashire amd Yorkshire Bmi., L. K., 4 Eq. Wynstanley y. Lee, 2 Swanst. 333 
 
 p, ,y , {d) Kdk T. Pearson, h. B., 6 Cn. App. 
 
 (z) See Lanfranchiy. Mackenzie, L. K., 809. 
 4 Eq. Ca. 421. 
 
158 DISTUEBANCE OF EASEMENTS. [OHAP. III. 
 
 theretofore, there is sufficient ground for the interference of the 
 court " (e). And there is no rule which prevents the court from 
 interfering on the ground that the injury sought to be restrained 
 has been completed before the filing of the bill (/). It depends, 
 however, upon aU the circumstances of the case whether the court 
 wiU grant a mandatory injunction, or only order an inquiry as to 
 damages under 21 & 22 Vict. c. 27 (Cairhs's Act) {g). And it has 
 been held that the court will not, as -a rule, grant an injunction 
 against the erection of a building the height of which above an 
 ancient light is not greater than its distance from the light Qi). 
 
 If ancient windows looking over or upon the land of another 
 have been enlarged, and then totally obstructed by the adjoining 
 landowner, a court of equity will, on the windows being restored 
 to their ancient dimensions, grant an injunction to restrain such 
 adjoining landowner from continuing the obstruction to the restored 
 windows {i). And if a person possessed of an ancient diamond- 
 paned, or stone-midlioned, or Gothic window, or a window painted 
 on the inside, puts in a modern sash with plate glass, or rubs off 
 the paint and so increases the amount of light inside his house, and 
 his neighbour blocks up the window, or builds immediately before 
 it, the court wUl by injunction compel him to remove the obstruc- 
 tion, on the ground that there has been no enlargement of the 
 external aperture {j). 
 
 A person does not lose his right to an injunction merely because 
 he has himself erected buildings which deprive him of a certain ' 
 amount of light and air (k), nor because he happens to be then 
 carrying, on a business which, as a matter of fact, requires a subdued 
 light (V). If the defendant, in an action for obstructing the plain- 
 tiff's ancient lights, pleads an equitable plea that he was to be 
 allowed to obstruct such lights on certain terms, this will not pre- 
 vent him from also applying for an injunction to restrain the 
 action, if the Court of Law cannot give such relief as the Court of 
 Equity would give (m). 
 
 Injunction to prevent the working, of mines and quarries so as to 
 deprive the adjoining or superjacent land of its necessary supports — If 
 a tenant in fee-simple grants a portion of his land for building pur- 
 poses, he impliedly grants, as we have seen, an easement of lateral 
 
 (e) Per Kindersley, V.C., in Mwrtin 31 Law J., Ch. 123. Weatherley y. Ross; 
 . Headon, L. E., 2 Eq. Ca. 434. See 32 ib. 128. See Jones v. ~ " 
 
 Clm-he \. Clarh, L. E., 1 Ch. App. 16. pp. 126, 136. 
 
 DureU t. Pritchard, infra. (j) Turner t. Spooner, ante, p. 136. 
 
 (/) JDurell T. I>riteliavd, L. E., 1 Ch. (k) AreedecJcne t. ^rfife, 2 Giff. 683. 
 
 App. 244. (1) Yates v. Jach L. E., 1 Ch. App. 
 
 (g) Senior v. Pawson, L. E., 3 Eq. Ca. 295. See ante, p. 128, LanfrancM y. Ma,c- 
 
 330. ' ■ 
 
 (h) Beadd v. Perry, L. E., 3 Eq. Ca. (m) Waterhw v. Baoon, L, E,, 2 Eq. 
 
 465. Ca. 514, ' 
 
 (i) Cooler V, HubJmk, 30 Beav, 160 ; 
 
SECT. 2.] BILL OF PEACE. 159 
 
 support for the buildings from his adjoining land; and if he, or 
 those who claim under him, attempt to derogate from the grant by- 
 excavating so as to endanger the buildings, the court will grant an 
 injunction to prevent the threatened mischief And where a land- 
 owner has sold his land to a railway company under the compul- 
 sory powers of an Act of Parliament, the court will interfere by 
 injunction to prevent him from working mines in his adjoining 
 land, so as to eManger the stability of the railway, unless the legis- 
 lature has given the company the power of purchasing such adjoin- 
 ing land, and has provided that they shall protect themiselve's by 
 purchasing so much of it as may be required to give their railway 
 and works the requisite amount of lateral support (n). Where land 
 had been allotted under a local enclosure Act, the effect of which 
 was to vest the surface in the allottee, and the minerals in the lord 
 of the manor, it was held, under the words of the Act, that the 
 latter could not be restrained from working the mines, although by 
 so doing he let down the surface, even to the extent of destroying 
 it, and that there was no difference for this purpose between lands 
 allotted under the General Enclosure Act (41 Geo. 3, c. 109, s. 32), 
 and lands sold to pay the expenses of the enclosure (o). 
 
 Bill of peace. — In addition to the remedy by action or injunction, 
 there are certain cases in which what is termed a bUl of peace may 
 be filed for the purpose of quieting a person in the enjoyment of 
 his legal rights and preventing the interference with them by 
 others (p). "It is certain," says Lord Hardwicke, " that where a 
 man sets up a general and exclusive right, and where the persons 
 who controvert it are very numerous, and he cannot by one or two 
 actions at law quiet 'that right, he may come to this court first, 
 which is called a bill of peace, and the court will direct an issue 
 to determine the right, as in disputes between lords of manors 
 and their tenants, and between tenants of one manor or another, 
 for in these eases there would be- no end of bringing actions of 
 trespass, since each action would determine only the particular 
 right in question between the plaintiff and defendant " (q). Thus, 
 a biU may be filed by one copyholder on behalf of himself and the 
 other copyholders against the lord (r), or by the lord against the 
 commoners (s), to have their respective rights of common ascer- 
 tained. So by the freeliold tenants of a manor against the lord, to 
 establish their rights to common of pasture and turbary, and to dig 
 gravel and sand in the lord's waste (t), or by a freeholder and copy- 
 
 (n) North-East. Rail. Co. r. Elliott, R, 2 Oh. App. 8. 
 
 ante, pp. 91, 92. fe ^«?'» ^- ^^'^f*' \^% ^S^. 
 
 (o) Wakefield v. DuJce of Buceleudi, 36 (r) Mtlhps v. Hudson, L. K, 2 Ch. 
 
 L. J., Oh. 763 ; L. R., 4 Bq. Ca. 613 ; 4 App: 243 p z. o v» 
 
 Engl. & Ir. App. 377. ' ■ («) ^rtUvgton r. Fawkes, 2 Vera. 
 
 («) Spence's Eq. Jur., pp. 656, 657. 356. , 
 
 &e6 Sheffield Waterworks v, Yeomans, L, it) See Warrwh r, queens Oolkcje, h. 
 
160 BILL OF PEACE. [CHAP. III. 
 
 holder jointly, on behalf of themselves and all other copyhold and 
 freehold tenants of the manor {u), if their rights are co-extensive (a;). 
 So to establish a right to a fisheiy, where the persons disputing the 
 right are very numerous (y). But, although a court of equity -will 
 thus protect the private rights of those who are comprehended 
 under one common capacity, as the inhabitants of a parish or the 
 tenants of a manor, it will not establish a right in contradiction of 
 a public right, as a right to a highway or a common navigable 
 river, for that would be to enjoin all the people of England (2). 
 
 E., 4 Eq. Ca. 254 ; 10 lUd. 105 ; 6 Ch. (x) Setts v. Thompson, L. K., 6 Ch. 
 
 App. 716. Minet v. Morgan, L. E., 11 App. 732. 
 
 Eq. Ga. 284. (2^) York {Mayor of) y. PUkmgton, 1 
 
 (tt) Smith V. Brovmlow (Ea/rV), L. E., 9 Atk. 282. 
 
 Eq. Ca. 241. See Peek v. Spencer, L. E., (z) Mitf. Ch. Plead. 147. See Fmam- 
 
 5 Ch. App. 548. lerg t. Piers, 2 Eq. Ca. Abr. 171. 
 
161 
 
 CHAPTER IV. 
 
 OF NUISANCES AND INJURIES FROM THE NEGLIGENT USE AND 
 
 MANAGEMENT OP REAL PROPERTY, AND FROM KEEPING 
 
 FEROCIOUS ANIMALS. 
 
 Section I. — Of nuisances. — Nuisances 
 from sewers, drains, briek-burning, 
 noisome trades, chimneys and manu- 
 factories — Defilement of springs and 
 streams — Noisy nuisances — Collection 
 of crowds — Injuries from spring-guns, 
 dog-traps, &c. — Unguarded weUs, min- 
 ing shafts, areas and cellars — Dangers 
 and obstructions in private and public 
 ways and navigable rivers — ^Locomotive 
 steam-engines — Dedication of highway, 
 subject to certain dangers and risks — 
 Injuries to land from groins and de- 
 fences against tides and currents — In- 
 juries from overloading warehouses and 
 from the fall of ruinous buildings — 
 Negligence in pulling down houses and 
 making excavations — ^Ruinous party- 
 waUs — Ruinous and defective fences — ■ 
 Railway fences — Negligent manage- 
 ment of stations — Ruinous and inse- 
 cure railway-bridges, viaducts, and 
 embankments ■ — Negligent manage- 
 ment of railway-gates, docks, canals, 
 baths, and steam machinery — Injuries 
 to servants and guests from dangerous 
 premises, defective hoisting tackle in 
 mines, and insecure scaffolding and 
 ladders — Contributory negligence on 
 the part of the plaintiff — Where the 
 
 plaintiff's right to recover is not de- 
 feated by his being a trespasser — In- 
 juries from ferocious animals and mad 
 doge. 
 
 Section II. — Aiatement of nuisances — 
 Statutory remedies and penaXties — Ac- 
 tions. — ^Abatement of nuisances — Sta- 
 tutory remedies and penalties in re- 
 spect of nuisances from gas-works and 
 the fouling of wells and pumps — Ac- 
 tions for nuisances — Notice before ac- 
 tion — Continuing nuisances — Parties 
 to be made plaintiffs and defendants — 
 Pleadings, defences, evidence, and 
 damages. 
 
 Section III. — Prevention of nuisances iy 
 injunction, prohibition, and indictment. 
 — Injunction — Acquiescence preclud- 
 ing equitable relief — Prevention of 
 public nuisance by prohibition and by 
 indictment — Nuisances in public high- 
 ways — Proof of dedication of way to 
 the public— Proof of animus dedi- 
 candi — ^Who may dedicate — Limited 
 dedication — Highway of necessity — 
 Proof of highway by proof of parish 
 repairs — Indictable obstructions in 
 highways and navigable rivers — Re- 
 pair of highways. 
 
 SECTION I. 
 
 OF NUISANCES AND INJURIES FEOM THE NEGLIGENT USB AND MANAGE- 
 MENT OF REAL PROPERTY, AND FROM KEEPING FEROCIOUS 
 ANIMALS. 
 
 Of nuisances.— The term nuisance, derived from the French 
 word nuire, to do hnrt or to annoy, is applied in the English law 
 indiscriminately to infringements upon the enjoyment of proprietary 
 and personal rights. A man may become responsible for a nuisance 
 by erecting a building which overhangs the bouse or land of his 
 
162 NUKANCES. [CHAP. IV. 
 
 neighbour, or by constructing a cornice, or fixing a spout, or any 
 projection which causes, or has a tendency to cause, an unnatural 
 quantity. of rain-water to descend on his neighbour's house and 
 land (a) ; also by erecting and working a noisy smith's forge, or 
 noisy workshops (6), or a stinking taUow-furnace, smelting-house, 
 dye-house, lime-kiln, tan-pit, privy, or hog-sty (c), or making a cess- 
 pool, the filth of which percolates through the soil and contaminates 
 the water of his neighbour's well or spring (d), or burning lime or 
 bricks, or erecting a glass-house or brew-house so near to a dweUing- 
 house that the smoke and smeU thereof enter the house and render 
 it unfit for habitation (e), or setting up a lime-pit for cleaning skins, 
 or a dye-house, and letting the draiaage therefrom run iato a water- 
 course or pond, and corrupt the water, or destroy or injure the fish 
 and the fishing (/), or disturbiag a decoy-pond by the firing of guns 
 in the neighbourhood of the pond (g), or stopping or diverting 
 water that used to run to another's miU (h). 
 
 Nuisances from the noyir-re^air of, or from neglectirhg to cleatise, 
 sewers, drains, and watercourses. — Every occupier is bound to pre- 
 vent the filth from his drains or cesspools from filtering through 
 the ground into his neighbour's house or land. It is a charge or 
 duty laid on him of common right, for neglect of which he is 
 answerable (i). Every grantee also of an artificial drain or water- 
 course constructed for the passage of water through the land of the 
 grantor, for the tise and benefit of the grantee, is bound to maintain 
 and repair the draia and watercourse and keep it in proper order ; 
 and if he neglects so to do, and the watercourse becomes obstructed 
 so that the grantee's surplus water floods the land of the grantor, 
 the latter is entitled to compensation in damages for the nui- 
 sance (7). 
 
 The grantee of a right of passage for waste water from his mes- 
 suage or tenement, through a draia or watercourse iu the land of 
 the grantor, is guilty of a nuisance if he allows the foiil water and 
 filth from privies or water-closets to enter the drain; and the 
 grantor of the easement or the owner of the land through which 
 the right of watercourse extends may stop up the watercourse for 
 
 (a) Penruddoch's case, 5 Co. 205. hmson v. Mnor, 4 B. & S. 229. 
 
 Baten's case, lb. 96. Beynolds v. Glwrlc, (g) Keble v. Hichenngill, 11 Mod 74 
 
 Eort. 212. . Fay v. Prentice, 1 'C. B. 828. 130 ; 3 Salk. 9 ; Holt, 14. Carnngton v. 
 
 (6) Bradley y. Gill, OJutw. '69. EUiotr Taylor, 11 East, 571. See IhhoUon t. 
 
 son T. Feetkam, 2 B. N. 0. 134. Peat, cmte, p. 10. 
 
 (c) Poynton v. Gill, Morley v. PragneU, (Ti) F. N. B. 184. 
 
 Cro. Car. 510. Jones v. Powdl, Hutt. (i) Tenant v. QoWAng, 1 Sali. 21. 
 
 136 Bliss V. .ff* 4 B N. C. 183. (j) Ld. Egremont v. Pulman, M. & M. 
 
 {d) Norton v. ScholefiM, 9 M. & W. 404, cited in Bell v. Twentymm, 1 Q. B. 
 
 ^^?\ T,r . cv,,. . ^ ^ » „ ^'^^- ^o<^e V. Dickenson, 2 Ld. Eaym. 
 
 (e) >Fdto-T.&J/e,4DeG.&Sm.321; 1568. ^nfe, pp. 143, 144. As to the 
 
 20 Law J., Oh. 433. Jones y. Powell, repair of ditches on the side of a turn- 
 
 /'2l' ^f?:,' 7, „ P''^^ ™^'^' ^^^ Merivale v. Trustees of 
 
 {f} Aliireds case, 9 Co. S9a.. Hodg- Exeter Tump!.keBoad,'L. K, 3 Q.K U9. 
 
.SECT. l.J OFFENSIVE TRADES, ETC. 163 
 
 the purpose of abating the nuisance (Jc). Every landowner who 
 constructs a sewer on his own land, and uses it for the purpose of 
 draining his own premises, is bound to keep the filth from his 
 sewer from becoming a nuisance to the adjoining occupiers ; and 
 if, by reason of an original faulty construction of the sewer, the 
 filth therefrom percolates through the soU and floods the cellars of 
 the adjoining occupiers, the landowner will be responsible for the 
 nuisance, although such occupiers are his own tenants (Z). But a 
 landlord who buUds houses, and constructs a sewer through his 
 own land for the purpose of draining them, and makes drains from 
 each house into the sewer, does not thereby render himself re- 
 sponsible to his own tenants for the repair of the sewer, or for 
 injuries that may be occasioned to them from overflowings of the 
 sewer ; for the grantor of a right of watercourse or passage for 
 water through his land is not, as we have seen, bound to keep the 
 watercourse in repair for the beneflt of the grantee, unless he has 
 by express contract taken that duty upon himself It is the grantee 
 .of the easement who is bound to keep the drain or watercourse 
 in proper order and prevent it from becoming a nuisance (ante, 
 p. 143). 
 
 Offensive smells and noisome trades (m). — ^A man may, without 
 being liable to an action, exercise a lawful trade, as that of a 
 butcher, brewer, or the like, notwithstanding it be carried on so 
 near the house of another as to be an arinoyance to him, in render- 
 ing his residence less delectable or agreeable : provided the trade 
 be so conducted that it does not cause what amounts in point of 
 law to a nuisance to the neighbouring house. But if a nuisance is 
 created, it is no answer to an action for damages to show that the 
 place where the trade is carried on is a fit and convenient place for 
 such a trade, and that the exercise of the trade there is only a 
 reasonable use by the defendant of his own land. The spot may 
 be very convenient for the defendant or for the public at large, but 
 very inconvenient to a particular individual, who chances to occupy 
 the adjoining land ; and proof of the benefit to the public from the 
 exercise of a particular trade in a particular locality can be no 
 ground for depriving any individual of his right to compensation 
 in respect of the particular injury he has sustained from it (n). 
 When, therefore, it is said that " a tan-house is necessary, for all 
 men wear shoes," yet this may be pulled down if it is erected so 
 
 (k) Cawhwell t. EusuU, 26 Law J., the consumption of smoke in Birming- 
 jjjcl^ 35 ham, Cooper v. WooUey, L. K., 2 Exoh. 
 
 (/)'.4«steT. era»«, 3EU.&B1. 128. 88- „ ^ ^ m , ,n t t 
 (m)Astokeepingpigsiiithemetropolis, (n) Bamford r. TwrnUy, 31 Law J., 
 
 see Chelsea V^t4 r. Kmg, Si Law J., Q. B 2&6 OaveyY L^better lb. 290 n.; 
 
 M. C. 9 ; the trade of cattle (slaughter- 13 C. B., N. S. 470, orerrulmg ffole v. 
 
 ink Uv^pool New CatiLe Market Co. v. Bwrhw, i 0. B., H. S. 335. _ 
 
 Eodscm L E 2 Q B ISl ; Anthony v. bothamy. Eastern and Contmental Meam 
 
 Brecon M'arlets Qo'., L, B-. 2 Kxch. 167 ; Pofiket Co., 8 0. B, 337, 
 
 M ^ 
 
164 NUISANCES. [CHAP. IV. 
 
 as to cause a nuisance to anotlier : so of a glass-house, for they ought 
 to be erected in places convenient for them (o) : what is meant 
 is, that they must be erected in a place where they will not cause a 
 nuisance to anybody. There is, however, it seems, a distinction in 
 this respect between a trade that injuriously affects property, and 
 one that causes only a certaia amount of personal discomfort {p). 
 
 It is not necessary to prove that the smeU is unwholesome. The 
 smeU of stied hogs, melting tallow, and other smells, may not be 
 positively noxious, but they may be very noisome and sickening, 
 keeping all who inhale them in a state of chronic discomfort, though 
 they may not injure or destroy health (g-). Trades are no doubt 
 carried on for the benefit of the public, but the primary object is 
 the benefit of the particular manufacturer who realizes the profit of 
 the business ; and it is no answer to a private individual, who is 
 prejudiced or injured by the exercise of the trade in such a way as 
 to be a nuisance, to say that others are benefited by it (r). 
 
 Brick-hwning. — Brick-burning is not in itself a noxious trade (sj, 
 for bricks may be burned, by the selection and combiaation of 
 proper substances for burning, without the emission of smoke or 
 disagreeable smells ; but if, by the use of coals or impure ashes and 
 animal substances, smoke, and vapour, and noisome gases are com- 
 municated to the air which surrounds and enters the plaintiff's 
 house, so as to cause inconvenience to the occupiers thereof, and 
 render the house manifestly less comfortable, the brick-burning will 
 be a nuisance, though the pollution of the air may not be carried to 
 the extent of rendering it noxious to animal or vegetable health. 
 But the inconvenience or discomfort must go to the extent of 
 materially interfering with the ordinary physical comfort of human 
 existence, not merely according to elegant or dainty modes and 
 habits of living, but according to plain, sober, and simple notions 
 amongst English people (t). 
 
 In cases where a man is not carrying on the trade of brick- 
 making, but is merely diggiag out the soil from his own land for 
 the buildiag of a house thereon, and when the nuisance conse- 
 quently is of a temporary nature, and is also of a trifling character, 
 the court wOl not interfere by injunction, for a man must have a 
 house to live in ; and it is reasonable that he should make his own 
 bricks out of his own land at a slight temporary inconvenience to 
 his neighbours {u). 
 
 (o) Jones T. PowM, Palm. 536. 13 0. B., N. S. 479 ; 32 Law J., M. C. 
 
 (p) St. Helen's Smelting Co, -v. Tipping, 135. 
 35 Law J., Q. B. 66. {t) Knight-Bruce, V.-C; Wdter v. 
 
 (q)^WaMert -v-Siilfe, 4 Da G. Jc^Sm. Selfe, 4 De G. & Sra. 323. Pollock v. 
 323.f&:^,-^5-^^^.3"'FJr^fR,^/y. j^gj^^.^ 11 jj^^3_ 266. Beardmore t. 
 
 (r) Stockport WaterwSrks Co. v. Potter, TredweU, 31 Law J., Ch. 893. Bamford 
 31 Law J., Exoli. 9 ; 7 H. & N. 160. v. Turnley, supra. 
 
 (s) Wanatead Lpafl Boar4, ^Q. t. IMl, {u) Ati.-Gen. v. Cleaver, 18 Ves. 219, 
 
SECT. 1.] LIABILITY OF LANDLORD AND OCCUPIER. 165 
 
 Of prescriptive rights to the exercise of a noisome trade. — If the 
 trade is proved to be a noisome trade the defendant may, neverthe- 
 less, establish a prescriptive right to the exercise of the trade on 
 the particular spot, by showing that he has exercised it without 
 molestation or interruption for the period of twenty years {v). " It 
 used to be thought, that if a man knew there was a nuisance, and 
 went and lived near it, he could not recover, because, it was said, 
 it is he that goes to the nuisance, and not the nuisance to him. 
 That, however, is not the law now " (x). 
 
 Nuisances from privies, chimneys, and manufactories — Liability 
 of the landlord and occupier. — If a nuisance be created on premises, 
 and a man purchase the premises with the nuisance upon them, 
 though there be a demise for a term at the time of the purchase, 
 so that the purchaser has no opportunity of removing the nuisance, 
 yet, by purchasing the reversion with the existing nuisance, he 
 makes himself liable for the continuance of the nuisance. But if, 
 after the reversion is purchased, the nuisance be erected by the 
 occupier, the reversioner incurs no liability ; yet, in such a case, if 
 there were only a tenancy from year to year, or any short period, 
 and the landlord chose to renew the tenancy after the tenant 
 had erected the nuisance, and he knew of it, that would make the 
 landlord liable. He is not to let the land with the nuisance upon 
 it (2/). 
 
 A landowner who creates a nuisance upon his land, or purchases 
 land with an existing nuisance upon it, cannot, by granting or con- 
 veying the land to another, get rid -of his responsibility on the 
 ground that he has no longer any control over the nuisance. 
 " Before his assignment over he was liable for all consequential 
 damages ; and it is not in his power to discharge himself by granting 
 it over ; more especially where he grants it over reserving rent, 
 whereby he agrees with the grantee that the nuisance should con- 
 tiaue, and has a recompense, viz. the rent, for the same : for surely, 
 when one erects a nuisance, and grants it over in that manner, he 
 is a continuor with a witness. Suppose the lessor or assignor had 
 been seized in fee, and had erected this nuisance, and then infeoffed 
 another over, he had conveyed this as a nuisance, and causa causm 
 est causa causati. And if a wrong-doer conveys his wrong over to 
 another, whereby he puts it out of his power to redress it, he ought 
 to answer for it. And it is a fundamental principle of law and- 
 reason, that he that does the first wrong shall answer for aU con- 
 
 Cleeve v. Mahany, 9 W. B. 882. Cavey And see Tippinqr. St Helen's Smelting 
 
 T. LedUtter, 13 C. B., N. S. 470 ; 32 Co., L. B. 1 Oh. App. 66. 
 
 Law J C P 105 '■y)' LittledalB, J., in R. r. Pedly, 1 
 
 (V) EUiotson y.' Peetham, 2 B. N. C. Ad. & E. 827. ffwrfj/ V /«6fe- 33 Law 
 
 ISi! Bliss Y. HaU, 5 Sc. 504^ J. Q- B. 151 Sa^byy. Mandmter Rad., 
 
 (x) Byles, J., in Hole t. Sarlow, i 0. 38 L. J., C. P. 154 ; L. R, 4 C. P. 198. 
 B.,N. S. 336; 27 Law J., C. P. 208. 
 
166 NUISANCES. [chap. IV. 
 
 sequential damages ; and the original erection does influence the 
 continuance, and it remains a continuance from the very erection, 
 and by the erection, till it be abated " (z). 
 
 If a landlord erects privies in such a situation that the use of 
 them niust necessarily create a nuisance, and the privies are demised 
 to tenants who use them and create a nuisance, the landlord will be 
 responsible for the erection and continuance of the nuisance (a). And 
 whenever the very existence of the thing demised constitutes a 
 nuisance, the landlord is responsible. This has been held to -be the 
 case where the thing demised consisted of a wall erected so as to 
 impede the access to a public market (&), or to obstruct the access 
 of light and air to ancient windows (c) ; a dam or mound of earth 
 stopping up the channel of a river or watercourse, or keeping a 
 mill-pond at an undue elevation (d) ; a dangerous excavation made 
 by order of the landlord, and left unguarded and unfenced, by the 
 side of a public thoroughfare (e). But if the landlord demises 
 tenements and premises which are not in themselves a nuisance, 
 but may or may not become a nuisance, according to the mode in 
 which they are used by the tenant, the landlord cannot be made 
 responsible for a nuisance created upon them by the tenant. He 
 is not responsible for enabling the tenant to commit a nuisance, if 
 he pleases. Therefore, where the landowner- erected a coffee-shop 
 with a low chimney under the plaintiff's windows, and let the 
 coffee-shop to a tenant who lighted a fire in the chimney, and 
 created a great smoke, which penetrated the plaintiff's dwelling'" 
 house and caused a nuisance, it was held that the landlord was 
 not responsible for this nuisance, as the tenant could have burnt 
 coke or charcoal in the chimney, and have used the chimney with- 
 out necessarily creating a great smoke, or might have abstained 
 from making fires at all when the wind was in such a direction as 
 to carry the smoke to the plaintiff's house (/). An occupier who 
 uses premises demised to him so as to create a nuisance is, of 
 course, always responsible for the consequences of his wrongful act 
 (ante, p. 162). 
 
 BefiUinent of springs and running streams (g). — ^We have already 
 seen that the right to have a stream flow in its natural state is an 
 incident to the property in the land through which it passes, and 
 that aU may reasonably use the water who have a right of access 
 to it. Every person, therefore, who throws dirt and rubbish into 
 
 (z) Per Cur., Soswell v. Prior, 12 Mod. Bishop v. Trustees of Bedford OhaHty, 28 
 
 689. Thoimpson v. Gibson, 7 lA. & W. 452. Law J., Q. B. 215 ; 1 Ell. & EU. 697. 
 (o) Sex V. Pedly, 1 Ad. & E. 822. (/) Mich v. BasterJkU, 4. C. B. 805, 
 
 (6) Thompson t. Gibson, 7 M. & W. See Srovm v. Bussell, L. E., 3 Q. B. 251. 
 ^°^- (g) As to the powera of Sewer authori- 
 
 (c) BoseweUy. Prior, ante, p. 147. ties to prevent the poUution of streams 
 
 (d) Boll's Abr. NuiaANOE, K. 2. within their district, see 28 & 29 Vict. 
 
 (e) Leslie v. Pownd, 4 Taunt. 649. o. 75, s. 10. 
 
SECT. 1.] COLLECTION OF CROWDS — NOISE — MAN-TBAPS, ETC. 167 
 
 the stream so as to block up the channel, or defiles the water with 
 gas refuse and filth, and prevents the riparian proprietors and 
 others from having the beneficial use of the water they have been 
 accustomed to have, is guilty of a nuisance, and may be made 
 responsible ia damages (A), unless he has gained a prescriptive 
 right to carry on an offensive trade on the river-bank, and corrupt 
 the water (i). 
 
 Noisy nuisances. — Quietness and freedom from noise are indis- 
 pensable to the full and free enjoyment of a dwelling-house. Every 
 person, therefore, who blows a horn in the night-time in the neigh- 
 bourhood of a dwelling-house, so as to disturb the repose of the 
 inmates, is guilty of a nuisance, and is responsible in damages, 
 unless he can show some justification for the making of a noise (/). 
 Every person, also, who erects a mill or a smith's forge, or any 
 noisy machine, or carries on any noisy trade or manufacture ad- 
 joining a dwelling-house, whereby the comfort and quiet of the 
 house are destroyed, and the rest of the inmates disturbed at night, 
 is guilty of a nuisance, and is liable to an action for damages, 
 xmless he can show that he has gained a prescriptive right to make 
 the noise by twenty years' user and enjoyment (Ic). 
 
 Collection of crowds. — It is an old principle of law, that if a 
 person collects together a crowd of people to the annoyance of his 
 neighbours, that is a nuisance for which he is answerable. There- 
 fore where the defendant was in the habit of invitiag persons into 
 his own grounds to shoot pigeons, and the effect of that was that 
 idle persons collected near the spot, trod down the grass of the 
 neighbouriag meadows, destroyed the fences, and created alarm 
 and disturbance amongst the women and children in the adjoining 
 thoroughfares, it was held that the defendant was guUty of a 
 nuisance {T). So, where the defendant descended in a balloon into 
 the plaintiff's garden, and a number of persons rushed into the 
 garden to render help and gratify their curiosity, and destroyed the 
 plaintiff's hedges and crops, it was held that the defendant who 
 had set the balloon in motion and caused the mischief was respon- 
 sible for the injury (m). But the keeping of a large school is not, 
 necessarily at all events, a nuisance (n). 
 
 Injuries from spring -guns, man-traps, dog-spears, engines, and 
 machines placed on land.—'BY 24 & 25 Vict. c. 100, s. 31 (re-enact- 
 ing the 7 & 8 Geo. 4, c. 18), it is provided, that whoever shall 
 
 (h) Murgatroyd v. BoUnson, 7 BlI. & liotson v. Feeihwm, 2 B. N. 0. 134 ; 2 So. 
 
 Bl. 391 : 26 Law J., Q. B. 233. Rodg- 174. Ante, p. 165. Soltau v. De HeU, 
 
 Icmson V. Ermor, 32 Law J., Q. B. 231 ; 2 Sim. N. S. 133. ^ ^ ^ _ , „„ 
 
 4 B. & S. 229. StockpoH Water, &c., Co. {I) Rex v. Moore, 3 B & Ad 188. 
 
 T Potter 31 L, J Exch. 9;7H.&N.160. WoZ&r v. ^rewsier, L. B., 5 Eq.Ca. 25, ace. 
 
 li) Ante v 165. Becdey v. Shorn, 6 (m) GuiUe r. Swan, 19 Jolins. (U.S.E.) 
 
 EMt 214 381. 
 
 (j) Bex T. Smith, 2 Str. 703. W Harrison v. Good, L. B., 11 Bq, Ca, 
 
 (h) BradUy v. QiU, 1 Lutw. 69. Bl- 338. 
 
168 NUISANCES. [CHAP. IV. 
 
 place or cause to be placed, or shall knowingly and wilfully con- 
 tinue, any spring-gun, man-trap, or other engine calculated, to 
 destroy human life, or inflict grievous bodily harm, with the intent 
 that the same, or whereby the same, may destroy or inflict grievous 
 bodily harm upon a trespasser, or other person coming in contact 
 therewith, shall be guilty of a misdemeanour; but the setting of any 
 gun or trap, such as is usually set with intent to destroy vermin, is 
 not to be thereby rendered illegal ; nor the setting of a spring-gun, 
 man-trap, or other engine in a dwelling-house, for the protection 
 thereof in the night-time (o). 
 
 The setting dog-spears on land is not in itself an illegal act, nor 
 is it rendered such by the above Act, if it appears that the dog- 
 spears were set in a wood for the mere purpose of destroying dogs 
 trespassing in pursuit of game, and not with intent to destroy 
 human life, or inflict grievous bodily harm on any human being. 
 The owner of a dog, therefore, passing with his dog through a wood, 
 has no right of action against the owner of the wood for the death 
 of, or for an injury to, his dog, who, by reason of his own natural 
 instinct, and against the will of his master, runs off the path against 
 one of the dog-spears, and is killed or injured (p). 
 
 Injuries to animals from dog-traps. — Every man must be taken 
 to contemplate the probable consequences of the act he does, and, 
 therefore, where the defendant caused traps scented with the 
 strongest meats to be placed on his own land, so near to the plaintiff's 
 house as to influence the instinct of the plaintiff's dogs and cats, 
 and draw them irresistibly to their destruction, it was held that the 
 defendant was responsible to the plaintiff for the injuries he sus- 
 tained, although he had no intention of injuring the plaintiff, and 
 meant only to catch foxes and vermin. It was held also, that the 
 defendant would be responsible for injuries sustained by any dogs 
 tempted from the highway, or a public path, to the traps on the 
 defendant's land, as he had no right to invite them there for the 
 purpose of destroying them (§). 
 
 Injuries from unguarded wells, mining-shafts, areas, and cellars. — 
 Where the surface of land is in the possession of one man, and the 
 subsoil and minerals in the possession of another, and the mineral 
 owner sinks a mining shaft to enable him to work the minerals, it 
 is his duty to fence the shaft so as to prevent injury to the cattle 
 and sheep depasturing upon the surface (r). If a man hires a 
 meadow, and turns his cattle therein, and they fall down the dis- 
 used shaft of a mine, the person to whom the shaft belongs, and 
 who has the dominion and control over it, wiU be responsible for 
 
 (o) See Bird v. milrooJc, i Bing. 628. (q) Townsend v. Wathen, 9 East, 277. 
 
 Deaner. Clayton, 7 Tauut.489. ,Zijo« v.,_, (?■) William y. Oroucott, 4 B. & S. 
 WUkea, 3 B. & Ad. 304. V I \r<4^ SfcvA / h 49. 
 
 (p) /ordin v. Crmip, 8 M. & W. 787. / 
 
SECT. 1.] UNGUARDED WELLS, MINING-SHAFTS, CELLARS, ETC. 169 
 
 the damage done (s). Eveiy occupier of land who allows wells or 
 mining-shafts to remain on his land unguarded and unprotected, is 
 responsible in damages to all persons who sustain injury from 
 falling into them, provided they were lawfully traversing the land 
 on which the shaft or well existed, and fell into it without any 
 negligence or misconduct on their part ; bu.t if they were at the 
 time trespassers on the land, and the well or shaft was more than 
 twenty-five yards from a public carriage-way {post, p. 171), they 
 win not be entitled to maiatain an action {t). Where the defen- 
 dants were owners of waste land which was bounded by two high- 
 ways, and the defendants worked a quarry in the waste, and the 
 plaintiff, not knowing of the quarry, passed over the waste in the 
 dark and fell into the quarry and broke his leg, and then brought 
 an action for damages, it was held that the action could not be 
 maintained, as there was no legal obligation on the defendant to 
 fence the quarry for the benefit of the plaintiff, who was a mere 
 trespasser upon the land (w). But if the hole is so near a highway 
 that a person lawfully using it may, if he slips on the highway, fall 
 into the hole, the occupier will be liable (y), even though the 
 obligation to fence may be on some other person {x). 
 
 If a man gets upon strange premises when it is dark, so that he 
 cannot see, he should keep a good look-out, and has only himself 
 to blame if he sustains injuries from running against objects, or 
 falling down places, which might have been avoided by the exercise 
 of ordinary care and caution (jj) ; but if a person, being upon the 
 premises of another on lawful business, without any fault or 
 negligence of his own falls through a hole on such premises, the 
 occupier will be responsible, although the hole be necessary for 
 carrying on the business of the occupier, and there is no duty upon 
 such occupier as between himseK and his servants to keep the hole 
 fenced {z). 
 
 Every occupier of a house adjoining &■ highway is responsible 
 for injuries to passengers arising from things falling from the house 
 into the street, unless he can show that the fall arose from storm 
 or tempest, or some inevitable accident {a). He is bound also to 
 secure his shutters, and swing-doors, and things placed against his 
 house, so that they cannot be readily thrown down on passengers 
 
 (s) Sylray v. White, 1 M. & W. 435. ix) Wettor T. DunJe, iF.&¥. 298. 
 
 (t) Hwrdcaath v. South Yorh, ^c. Rail. [y) Wilkinson y. Fairrie, 32 Law J., 
 
 Co.. 4 H. & N. 67 ; 28 liaw J., Excla. 139. Ex. 173. 
 
 Bishop V. Trustees of Bedford Charily, 1 (z) Indermaur v. Dames, L. E., 1 C. 
 
 Ell. & KU. 697. PicJcard r. Smith, 10 C. P. 274 ; 2 Ibid. 311. 
 B. N. S. 470. W Byrne Y. Boodle, 33 Law J., Excli. 
 
 '(«) 'HounseU v. Smyth, 7 C. B., N. S. 13. Domat. liv. 2, tit. 8, sg. 1, 10, 11. 
 
 731 ; 29 Law J., C. P. 203. Binks t. See Scott v. London JDoch Co., 34 L. J., 
 
 Sovih Yorh 4- River Dun Co., 32 Law J., Exeh. 17. lUd. 220. But see Welfare 
 
 Q. B. 26 ; 3 B. & S. 244. v. Brighton Rwil, L. E., 4 Q. B. 693 ; 38 
 
 (ii) ffadley t. Taylor, L. E., 1 C. P. 53. L. J., Q. B. 241. 
 As to who is an occupier, see S. 0. 
 
170 NUISANCES. [CHAP. XV. 
 
 ty idle or miscHevous persons. Thiis, where the cellar-door of a 
 tradesman was opened and thrown back against his house, and 
 some little boys playing with the door threw it over upon the 
 plaintiff and broke his leg, it was held that the tradesman was 
 responsible for the injury, as he had provided no fastening to 
 keep the door back. "A tradesman under such circumstances is 
 not bound .to adopt the strictest means for preventing accidents, but 
 he is bound to use reasonable precaution, such as might be expected 
 from a careful man " (6). But if the door is a door of great weight, 
 and so thrown back that it could not be pushed forward into the 
 street without the exercise of great force and strength, the remedy 
 would be against the wilful wrong-doer and not against the trades- 
 man, who reasonably supposed a fastening to be, under such circum- 
 stances, unnecessary. Whether proper care has been taken to 
 prevent the door from falling forward is a question for the jury. 
 
 Injuries from the dangeroics state of private ways. — ^If landowners 
 have given an express or implied permission to strangers to use a 
 private way leading across their lands, or if they suffer a particular 
 pathway to be used as an ordinary means of access to their dwel- 
 ling-houses, it is not competent to them to do any act whereby 
 injury may arise to persons using the way, without giving them 
 timely notice of what has been done, or revoking the licence or 
 permission to come upon the land. And as the owners themselves 
 are not justified in placing any unknown dangers in the way of 
 persons using the private way, so neither can they authorise any- 
 body else to do so (c). If the landowner takes toll for the use of 
 the way, and invites people to use it, it is his duty to keep it in a 
 safe state, and fit for use ; and if he is cognizant of some hidden 
 danger, he ought to remove it, or close the way to the public (d). 
 Every occupier of a house who makes or permits the continuance 
 or ,use of a pathway to the house, may fairly be deemed to hold out 
 an invitation to all persons who have any reasonable ground for 
 coming to the house to pass along his pathway ; and he is respon- 
 sible for neglecting to fence off dangerous places, in the same way 
 that a shopkeeper, who invites the public to his shop, is liable for 
 leaving a trap-door open without any protection, by which his 
 customers suffer injury (e). But a person who strays from the 
 ordinary approaches to the house, and trespasses upon the adjoin- 
 ing land, where there is no path, has no remedy for any injury he 
 
 (5) Tindal, C.J., JDcmiels v. Potter, i (d) Gibbs v. Trmtm of Liv. Docks, 3 
 
 C. & P. 262. Proctor y. Harris, ib. 337. H. & N. 164 ; 27 Law J., Exch. 321. 
 
 (c) Corby y. HiU, 4 C. B., N. S. 556; (e) Tindal, C.J., Lancaster Carnal Co. 
 
 27 Law J., C. P. 320. Qcdlaghery.Bvm- v. Pa/rnahy, 11 Ad. & E. 243. Ba/rnes v. 
 
 pUry, 10 W. R. 664 ; 6 L. T. E., N. S. Wa/rd, 9 C. B. 420 ; 19 Law J., C. P. 200. 
 
 684. Cockburn, C.J., Hodman v. West Jarvis t. Dean, 11 Moore, 354. Inder- 
 
 Midi. SaU. Co., 33 L. J,, Q. B, 240. See inaur v. Dames, ante, p. 169. 
 post, p. 173. 
 
SECT. 1.] STEAM ENGINES, ETC., NEAR HIGHWAYS. 171 
 
 may sustain from falling into unguarded wells or pits, as the injury 
 is the resiilt of Ms own carelessness and misconduct (/). If A gives 
 B permission to cross his yard, across which there are a dozen 
 different routes, and A has dug a hole in the yard which he usually 
 keeps covered, but one night he uncovers it, and B, crossing as 
 usual, and not expecting any danger, falls in and is injured, A is 
 liable for the injury. But if the hole has always been uncovered, 
 and B walks into it in broad daylight, he has no cause of action 
 against A (g). 
 
 Nuisances adjoining higJiwaT/s— Dangerous pits and excavations — 
 Steam-engines and windmills. — By the G-eneral Highway Act, 5 & 6 
 Wm. 4, c. 50, s. 70, it is enacted, that it shall not be lawful for any 
 person to sink any pit or shaft, or to erect or cause to be erected any 
 steam-engine, gin, or other like machine, or any machinery attached 
 thereto, within the distance of twenty-five yards, nor any windmill 
 within fifty yards from any part of any carriage-way or cart-way (A), 
 unless such pit or shaft, or steam-engine, gin, or other like engine 
 or machinery, shall be within some house or other building, or 
 behind some wall or fence, sufficient to conceal or screen the same 
 from the said carriage-way or cart-way, so that the same may not 
 be dangerous to passengers, horses, or cattle (i) ; also, that it shall 
 not be lawful for any person to make or cause to be made any fire 
 for calcimng or burning of ironstone, limestone, bricks, or clay, or 
 the making of coke, within fifteen yards from any part of the said 
 carriage-way or cart-way, unless the same shall be within some 
 house or other building ; or behind some wall or fence sufficient to 
 screen the same from such carriage-way or cart-way. Penalties 
 are imposed upon persons offending against the statute for each 
 and every day that any such pit, shaft, windmill, steam-engine, gin, 
 machine, or fire, shall be permitted to continue contrary to the pro- 
 visions of the Act. 
 
 Penalties are also imposed (s. 72) upon persons playing at 
 games on highways, to the annoyance of passengers, or making 
 fires ■(/«), or letting off fireworks, pistols, or guns, within fifty feet 
 of the centre of the way, or laying things on the highway, to the 
 interruption of persons travelling thereon, or suffering filth or any 
 offensive matter to flow upon the highway from the adjoining 
 premises, or in any way wilfully obstructing the passage of the 
 
 (f) Wilde, B., Bolch v. Sndth, 7 H. & machines are excepted by 28 & 29 Viet. 
 N. 736 : 31 Law J., Exch. 203. c. 83, s. 6 (contmued by 34 & 35 Viot. 
 
 (g) BhtU v. Topham, 1 KoU. Abr. 88; c. 95), Fovided certain precautions are 
 Cro Jac 158. Stone v. Jackim, 16 C. taken whilgt they are m use. Ihd. 
 
 B. 204 HardcasfU v. South Yorkshire (i) As to nuisances from steam-thresh- 
 
 Rwy., &e., 4 H. & N. 74. OoMdret t. ing machines, se6 Smith v. Stokes, 4 B. & 
 
 W/oK, £. B., 2 0. P. 371. , ^-nt-c, c..- Dx. • T TJ 1 
 
 (h) 'rills is extended to turnpike roada W See Stmson v. Browmng, L. E,, 1 
 
 by 27.& 28 Vict. o. 75. Steam-ploughing C P. 321. 
 
172 ■ NUISANCES. [CHAP. IV. 
 
 highway. Provision is also made (s. 73) for the removal and 
 abatement of all nuisances upon the highway. 
 
 Tlie use of locomotive steam-engines on highways is authorised by 
 24 & 25 Vict. c. 70, provided they are used (s. 13) so as not to 
 create a nuisance {t). This Act has been amended' by the 28 & 29 
 Vict. c. 83, which prescribes the rules subject to which, such loco- 
 motive engines may be used (s. 3), limits the speed at which they 
 may travel (s. 4), and makes spe^cial regulations as to their passage 
 through towns (s. 8). The last-mentioned Act (which is a tempo- 
 rary one) has been continued to the 1st Septeinber, 1872, and the 
 end of the then next session by 34 & 35 Vict. c. 95. 
 
 Bangerous excavations adjoining highways. — As persons are pro- 
 hibited from sinking pits or shafts within the distance of twenty- 
 five yards from any part of a carriage-way or cart-way, being a 
 highway, it follows that any person who has sustained injury from 
 the doing of the prohibited act is entitled to an action to recover 
 compensation in damages from the wrong-doer ; and it is no 
 answer to such an action to show that he had deviated from the 
 highway, and was a trespasser upon the adjoining land, at the time 
 he sustained the injury : but when the excavation is made beyond 
 the distance of twenty-five yards from the carriage-way, and does 
 not immediately adjoin any foot-path or public place of passage 
 where all persons have a right to go, and there is no obligation 
 imposed upon the landowner on whose land the excavation has ■ 
 been made to fence it off, and the person falling into it would be a 
 trespasser upon the intervening land before he reached the excava- 
 tion, no action would be maintainable by the injured party (m). 
 -The negligent quarrying of stone near a highway is an indictable 
 offence at common law (n). 
 
 "Where the occupier of a dangerous area adjoining a highway 
 set up as a defence that the premises had been exactly in the same 
 condition as far back as could be remembered, and many years 
 before he took possession of them (o), Lord Ellenborough held that, 
 however long the premises might have been in a dangerous state, 
 the defendant, as soon as he took possession of them, was bound to 
 guard against the danger to which the public had been before 
 exposed ; and that he was liable for the consequences of having 
 neglected to do so, in the same manner as if he himself had origi- 
 nated the nuisance ; that the area belonged to the house, and the 
 law cast upon the occupier the duty of rendering it secure (p). No 
 
 (V) Wathins y. ReMin, 2 F. & P. 269. (o) See Bwmes v. Ward, 9 C. B. 420 ; 
 
 (m) Ma/rdcastle v. South Torh, &c. 19 Law J., C. P. 200. Jarvis t. Dean, 11 
 
 RaU. Co., 4 H. & N. 74 ; 28 Law J., Moore, 354. 
 
 Exeh. 139. Blyih v. yopAam, Cro. Jao. (_p) Coupl(mdv.Earding}iam,S Campb. 
 
 159. Eoumel Y. Smith, Binhs v. South 39S. Bishop v. Trustees of Bedford Ohmity, 
 
 Yorh and River Dun Oo., ante, p. 169. Pichard v. SmM., ante, p. 169. ■ 
 
 (m) Rtg. V. Mutters, 34 L. J., M. C. 22. 
 
SECT. 1.] • LIMITED DEDICATION OF HIGHWAYS. 173 
 
 question was raised in this case, however, as to whether the high- 
 way existed before the area was made : for if the area had been 
 made, and the road afterwards dedicated to the public with the 
 imfenced area beside it, the public would take the right of way- 
 subject to the danger and inconvenience of the Jinfenced area (g). 
 
 Dedication of a highway to the public subject to certain rislcs and 
 inconveniences. — ^Whefi a highway is dedicated to the public by 
 the owner of the soil, the public can take no larger or more exten- 
 sive right than the owner of the fee thinks fit to grant or allow 
 (post, s. 3). If, therefore, the right of passage has been granted 
 subject to a right vested in the adjoiaing landowners of depositing 
 goods on the soil of the way, the public must take the right subject 
 thereto (r). So if the highway has been dedicated subject to the 
 right t6 have door-steps or cellar-flaps projecting into it, the public 
 must take the road as it is given to them, subject to those incon- 
 veniences and obstructions (s). So the owner of a field may dedi- 
 cate a footpath to the public over it subject to his right to plough 
 it up in due course of husbandry, although that, for the time, 
 destroys all traces of the path (f). 
 
 Where an ancient unfenced tidal ditch ran alongside a public 
 highway, and the commissioners of sewers took possession of the 
 ditch under the powers of an Act of Parliament, for the purpose of 
 their sewerage, and the plaintiff, on a dark night, tumbled into the 
 ditch with his hprse and carriage, it was held that the commissioners 
 of sewers were not responsible for the injury, as the highway and 
 the ditch had immemorially existed in the same state, and the 
 commissioners were under no obligation to fence it off from the 
 road. "The road," observes Parke, B., "was dedicated to the public 
 with a ditch beside it. This is an ancient sewer, which has existed 
 with the highway time out of miad, and therefore the public have 
 only a right to the highway subject to the sewer " (u). But when- 
 ever a highway has been dedicated to the public, subject to certain 
 obstructions left in it for the convenience and accommodation of 
 the occupiers of the adjoining houses, the obstruction or incon- 
 venience to the public must not be increased by any act of com- 
 mission or omission. Cellar-doors or cellar-flaps- must not be left 
 open or unfastened, so as to expose the public to any unusual, un- 
 expected, or unforeseen danger. And all things accessorial to the 
 beneficial use and occupation of the adjoining dwellings must be 
 kept in a proper and safe state, either by the occupiers of the houses 
 
 (g) Blackburn, J., Fisher v. Prowse, {t) Mercer v. Woodgate, L. R., 5 Q. B. 
 
 31 Law J., Q. B. 219. 26. Arnold v. BMer, L. E., 6 Q. B. 
 
 (r) Movant r. CTmmberUn, 6 H. & N. 433. „ „ 
 
 541 • 30 Law J Exch. 299. Le Neve v. (m) Cornwall v. Metrop. Com. of Sewers, 
 
 MiUEnd, &c., Vestry, 8 Ell. & Bl. 1063. 10 Bxoh. 771. Blackburn, J., FisTier T, 
 
 (s) Fisher v. Prowse, 31 Law J., Q. B. Prowse, supra, 
 213. JMMns V, Jones, 33 L. J., 0. P. 1, 
 
174 NUISANCES. [CHAP. IV 
 
 or by those upon whom the law casts the burthen and duty of 
 repairs {v). 
 
 Olstructims in ^public thorowghfa/res. — " If a man hangs a gate 
 upon a post, and shuts it with a catch upon another post across a 
 highway used for horses and carriages, so that men on horseback or 
 in carriages cannot pass without opening the gate, this is a common 
 nuisance," for a man has no right to put such an impediment in the 
 road where none before existed. But gates which have been in 
 highways time out of mind are not any nuisance, because it 
 may be intended that they began by composition with the owner of 
 the land when he consented to the way {w). 
 
 Whenever one man wilfully interferes with the free right of 
 passage of another along a public highway, there is an injury to a 
 right, and an action for damages is maintainable. And whenever 
 a private injury has been sustained from an unauthorised obstruc- 
 tion in a public thoroughfare, the injured party is entitled to 
 compensation in damages. If one person wilfully and intentionally 
 runs his Carriage before another person's carriage in a public 
 thoroughfare, stopping when he stops, and going ahead of him 
 when he goes on, and crossing his path, so as to prevent him from 
 having the free and uninterrupted use of the highway, and oblige 
 him to pull up or slacken speed, for fear of a collision, the person 
 so obstructiag the public thoroughfare wOl be guilty of a nuisance, 
 and responsible in damages to the party whose free right of 
 passage has been wilfully and unlawfully obstructed. There is, in 
 such a case, an injury to a right, and substantial damages are 
 recoverable. Where, therefore, the drivers of an omnibus company 
 headed and tailed the omnibus of a private individual with the 
 company's omnibuses, and obstructed the highway with their 
 vehicles, so as to create a nuisance, and interrupt the free passage 
 of the thoroughfare, it was held that the omnibus company was 
 responsible in damages to the private omnibus proprietor, who had 
 been wilfully delayed and impeded in the exercise of his right to 
 pass along the public highway {£).' 
 
 If a man builds a house or a bridge, so as to obstract a public 
 thoroughfare, he cannot escape from liability by saying that it was 
 the fault of the builder or contractor, in not constructing it in some 
 different manner (y). If the occupier of a house or building 
 adjoining a highway directs certaiu repairs to be done to his house, 
 and it becomes necessary to excavate the earth, and remove stone, 
 timber, and materials from the premises, and the excavated earth 
 
 (jo) Daniels v. Potter, Proetor\. Harris, (x) Oreen v. Land. 6m. Onrnb. Go., 7 
 
 ante, p. 170. C. B., N. S. 290 j 29 Law J., C. P. 13. 
 
 (w) Vin. Abr. NtiiSAsrcE, 0. James (y) Bole v. Sitimgbowne, iSic., Rail. Co., 
 
 V. Bayward, grp, Cay. 184; W. JTones, 6 H. & N. 500 ; 30 Law J., Exoli. 81. 
 
 221. Gray v, fulkn, U L. J., Q. B. 265. 
 
SECT, l.j OBSTEUCTIONS IN HIGHWAYS, RIVERS, ETC. 175 
 
 and materials are placed in the liigli-road in front of the house, 
 with the knowledge and sanction of the occupier of the house, the 
 latter will be responsible for the obstruction, although it was placed 
 there by the servants or workmen of a builder or contractor. If, 
 seeing the obstruction and the danger of it, and having control over 
 everybody working upon his own land, and bringing materials out 
 of his own house, he does nothing to prevent or abate the nuisance, 
 if he sUently acquiesces in the conversion of the highway tato a 
 place of deposit for materials brought from his own premises, there 
 will be evidence to go to a jury of the things having been placed 
 in the highway by his authority (z). 
 
 So, by the civd. law, every occupier of a house, whether he was 
 the proprietor of it or a lessee, was held Liable -for damage caused 
 by anythiiig thrown out of the house, or the premises belonging to 
 it, into a street or public thoroughfare, or any other place. And 
 the occupier was held responsible for the damage, if the thiag was 
 done by any of his family or domestics in his absence, or without 
 his knowledge (a). 
 
 Obstructions in navigable rivers. — The right of soil in arms of the 
 sea and public navigable rivers, which is primd facie vested in the 
 Crown, independently of any ownership in the adjoining lands, must 
 in all cases be considered as subject to the public right of passage, 
 however acquired, and any grantee of the Crown must, of course, 
 take subject to such right. If, therefore, he places any obstruction 
 in the bed of the river, which deprives another of his right of free 
 passage along it, he is liable to an action for the private and 
 particular injury to the individual (6). But if the obstruction has not 
 deprived any particular individual of his right of passage along the 
 stream, or caused him any personal damage different from, and 
 independent of, that which is sustatried by the rest of the public, 
 an action for damages is not maintainable, but the public remedy, 
 by way of indictment, must be pursued (c). And it is to be observed 
 that an indictment in such a case, — viz., where an action would lie, 
 if the complainant had sustained damage different from that of the 
 public, — being substantially a civil and not a criminal proceediag, 
 the rule that a master is responsible for the wrongful act of his 
 servant, though he does not himself personally interfere, and f the 
 wron^ul act is contrary to his general orders and without his 
 knowledge, will apply (d). If an obstruction has been placed in a 
 navicfable river for the more convenient use and occupation of a 
 
 k) Bmqess t Gray, 1 C. B. 591. Bush tit. 5, B. 1. Byrne y. Boodle, ante, 
 T.Stemnmn,lB.&F.m.MakY. p. 169. „ « w t, .-, 
 
 a/ielT Gas Co., 2i Law J., Q. B. 42 ; (6) Hose v. Groves, 6 So. N. R 6o3 ; 
 
 voa B 2 P°**' ^- 2- 
 
 (a) bouiat. Droit. Civ. lir. 2, tit. 8, B. 1. (o) Birms r. PeOey, 15 Q. R 283 
 
 Pandect, lib. 9, tit. 3, Instit. lib. 4, ^ (d} Beg. v. Ste:phms, L. B., 1 Q. B. 
 
176 NUISANCES. [CHAP. IV. 
 
 ■wharf, those who placed the obstruction in the river, and the 
 occupiers of the wharf who continue it there for the use of the 
 wharf, will be responsible for injuries caused by it to persons 
 lawfully using the wharf who had no knowledge of the obstruction, 
 or (semble) to any person navigating the river (e). However, if 
 oysters and oysterbrood are so placed in a navigable creek or river, 
 and in such masses, as unlawfully to diminish the depth of water 
 and obstruct the navigation, a shipowner or shipmaster is not, by 
 reason thereof, justified in negligently or wilfully running his 
 vessel upon the oyster-beds, and destroying the oysters, if there 
 was abundance of room and water for the vessel to have passed up 
 the river without going upon the beds (/). 
 
 Obstructions from sunken vessels, anchors, telegraph wires, &c. — 
 The owner of a ship sunk ia a navigable river by accident, without 
 his default or misconduct, is not bound to remove the nuisance, if 
 the vessel is totally submerged, and he has no longer the possession 
 of it; but if he has possession of the vessel, and exercises the 
 dominion and control of an owner over it, he is bound to take all 
 reasonable and proper care to prevent accidents to other vessels 
 navigating the river, and must remove the obstruction with all 
 reasonable diligence. This duty attaches to the ownership of the 
 vessel for the time being, and wiU be transferred to a purchaser of 
 the sunken vessel, who takes the wreck iato his possession, and 
 under his management and control {g). And so, conversely, a 
 person navigating the high seas will be liable for injury caused by 
 his negligence in navigation to a telegraph cable lying at the bottom 
 of the sea (A). The principle above-mentioned has been held to 
 apply to the case of piles left in the bed of a river by a contractor, 
 which were no obstruction when the works for which the piles 
 were used were completed by the contractor and handed over to 
 the Admiralty, but which subsequently became so by the soil around 
 the piles being washed away (j). 
 
 Where the, ^public right of free navigation is taken away, and the 
 ■pow&r of removing obstructions is vested in the hands of conservators 
 of the river by Act of Parliament, there can be no redress by way 
 of action on account of any disturbance of the individual right. 
 The individual grievance is only accessory, and, the principal being 
 taken away, the accessory follows (_;'). There is a distinction in 
 this respect between duties imposed by statute on trustees or com- 
 
 (c) White V. Phillips, 33 Law J., C. P. (h) Submarine Telegraph Co, v. Dich- 
 
 33. son, 33 L. J., C. P. 139. 
 
 (/) Mayor of Colchester v. Brooke, 7 (i) ^ortfeB v. .Safer, 3i L. J., Exoh. 8. 
 
 Q. B, 377. See, as to oyster fisheries, 31 Hywms v. Webster, L. E., 2 CJ. B. 264, 
 
 & 32 Vict. c. 45, ss. 27, 61 ; Ibid. c. 53 ; ace. 
 
 32 & 33 Vict. c. 31. {j) Kearhs v. Cordwainers' Co., 6 C. B., 
 
 (g) White \. Crisp,10 Exch. 312 j 23 N. S. 388 ; 28 Law J., C. P. 285. See 
 
 Law J., Excli. 317. Tlie Thames Oonserranoy Act, 1866, 29 
 
 ^ 30 Vict. c. 89. 
 
SECT. 1.] OVEELOADING WAEEHOUSES, ETC.' 177 
 
 missioners for the purpose of rendering a river navigable and 
 nothing more, and who have no interest in the soil of the river Qc), 
 and duties imposed for other purposes also, e.g., of drainage (I). An 
 Act of Parliament empowering a corporation to remove obstruc- 
 tions 'in a navigable river, giving compensation to the owners of the 
 soil where the obstructions are situate, does not constitute them 
 conservators of the river (m). 
 
 Injuries to land, from the erection of groins, sea-walls, and defences 
 against tides and currents. — Every proprietor of land exposed to 
 the inroads of the sea may erect on his own land groins, or other 
 reasonable defences, for the protection of his land from the inroads 
 of the sea, although, by so doing, he may cause the sea to flow with 
 greater violence against the land of his neighbour, and render it 
 necessary for the latter to protect himself by the erection of similar 
 sea-defences. " Each landowner has a right to protect himself, but 
 not to be protected by others, against the common enemy." Biit a 
 man has no right to do more than is necessary for his defence, and 
 to make improvements at the expense of his neighbour {n). 
 
 Negligent overloading of the floors of warehouses and buildings. — 
 If one man overloads the floor of a warehouse with merchandise, 
 so that the floor breaks and crushes the goods of another man in 
 the floor underneath, the latter is entitled to an action for damages 
 against the former. If the floor is ruinous, the occupier must take 
 good care that he does not put upon such ruinous floor more than 
 it can well bear ; and if it wiU not bear anything, he ought not to 
 put anything upon it to the prejudice of another. Where the 
 defendant, who was the lessee and occupier of a warehouse, 
 underlet a 'CeUar beneath the warehouse to the plaintiff, and the 
 defendant so overburthened the floor of the warehouse with 
 merchandise that the floor gave way, and crushed the plaintiff's 
 wine in the cellar, it was held that the defendant was responsible 
 for the injury, and that it was no answer to the action to say that 
 the floor was ruinous, and that the defendant was not bound to 
 repair it; "for he who takes a ruinous house ought to mind well 
 what weight he put into it at his peril, that it be not so much that 
 another shall take any damage by it. But if the floor had fallen 
 of itself, without aiiy weight upon it, or by the default only of the 
 posts in the cellar which support it, with which the defendant had 
 nothing to do, there the defendant shaU be excused" (o). 
 
 Non-repair of ruinous houses — Liability of the landlord and 
 occupier. — As between the landlord and occupier of a house, or the 
 
 ft) Orachnell v. Mayor of Thetford, (to) Emter {Corporation of) v. Devon 
 
 L. K, 4 C. P. 629. (^»'-2 "/). L. E., 10.Eq. Ca. 232. 
 
 (?) Parrett Navigatkin Co. t. RoUns, 10 {n) Rex v. Pagham Commissioners, &o., 
 
 M & W. 593. See JToltv. Corporation of ante, -p. 3. 
 
 Rochdale, L. K., 10 Eq. Ca. 354. (o) Edwards v, Halinder, Poph. 46. 
 
178 ' NUISANCES. [CHAP. IV. 
 
 landlord and tenant, there is no obligation upon the landlord to 
 keep the house in repair, in the absence of an express contract to 
 that effect. If, therefore, the chimney of a house demised to a 
 tenant becomes ruinous, and falls through the roof of the house, 
 and injures the furniture and family of the tenant, the latter has 
 no remedy against his landlord for the injury (p). But the landlord 
 is responsible to the public, and to the occupiers and proprietors of 
 the adjoining property, if he demises houses which are in a ruinous 
 state and dangerous to the neighbourhood, either from original 
 faulty construction, or from want of proper and timely repair (q). 
 But if the houses or buildings are in good repair and condition at 
 the time of the demise, and subsequently become ruinous and 
 dangerous to the neighbourhood, the landlord is not responsible for 
 the nuisance, unless he has taken upon himself the burthen of 
 repairing and maintaining the premises during the existence of the 
 lease (r), or has renewed the lease after the houses had become 
 ruinous and in danger of falling, for an owner of a house is not as 
 such liable for want of repair (s) (ante, pp. 165, 166). The occupier 
 is also responsible for the nuisance; and it is no answer for him 
 to say that he is a mere tenant-at-will or upon sufferance, or has 
 only a temporary or precarious interest in the premises, and is 
 under no obligation to maintain and repair them ; for if he chooses 
 to take the benefit of the occupation of premises, he must take them 
 with the accompanying burthen of preventing them from becoming 
 a source of danger to others. 
 
 Thus, where the defendant was indicted for not repairing a 
 ruinous house abutting upon a highway, and the indictment charged 
 that the house was likely to fall down, and that the defendant 
 occupied it, and ought to repair it, and the jury found that the 
 house was ruinous and likely to fall, and that the defendant 
 occupied it, but was only tenant-at-wUl, the court held that he 
 was nevertheless answerable to the public for its dangerous con- 
 dition (t). But the liability of a mere tenant-at-wiL, in this respect, 
 ought J in reason to be confined to cases where he knew or ought to 
 have known that the house was in a dangerous state, and chose to 
 become and continue the occupier of it, with knowledge of its 
 dangerous condition. All that the occupier is bound to do, in any 
 case, is to . shore up the building so as to prevent it from falling. 
 He is not bound, as between himself and the public or the neigh- 
 bours, to put it into a state of repair. 
 
 (p) GoWt. (?am«2/, 2E11.&B1. 847; 23 Zeslie r. Pounds, i Taunt. 648. SisJu^ 
 
 Law J., Q. B. 1. T. Trustees of Bedford Chanty, 1 Ell. & 
 
 (q) Toddv. Might,. 9 C.B.,N. S. 317; Ell. 697. SohUns y. Jones, 3S 1. J., 
 
 30 Law J., C. P. 21; ante, pp. 165, 166. C. P. 1. 
 
 Bex Y. PedVy, 1 Ad. & B. 822. («) ChaunOer t. Rohimson, infra. 
 
 (r) Payne v. Sogers, 2 H, & BI, 349. (f) Beg. t. Watts, I Salk. 357. 
 
SECT, l.j NEGLIGENT EXCAVATIONS. 179 
 
 By the civil law, wherever anything hung out from a house 
 happened to fall and injure another, the occupier of the house was 
 held responsible in damages for the injury ; but if tiles fell from 
 the roof from the effect of a storm, and the roof was in good repair, 
 the occupier was not answerable for the accident. If the roof was 
 out of repair, then the person bound to keep it in repair was 
 guUty of a breach of duty, and was answerable for the damage to 
 the person injured (u). 
 
 Negligence in pulling down houses — Negligent excavations. — It is 
 the duty of all persons to use due care and skiU, and take due, 
 reasonable, and proper precautions in pulling down houses and 
 v/alls which rest against, or are in contact with, an adjoining house 
 or wall ; and if an injury is sustained fjom a neglect to exercise such 
 care, skQl, and precaution, a wrong is done, and the wrong-doer is 
 responsible for the damage (v) ; and it is no answer to an action 
 for damage done to set forth that the damage was repaired by the 
 defendant before action, but the fact must be given in evidence in 
 reduction of damages (w). If a man negligently and carelessly 
 excavates his own land close to the foundations of his neighbour's 
 house without giving the latter any warning, or giving him an 
 opportunity of shoring up or protecting his house, the careless 
 excavator wiU be responsible for the damage he occasions {x), and 
 the penalty which the Metropolitan Building Act (18 & 19 Vict. 
 c. 122), by s. 94, imposes upon any building-owner who fails to 
 make good the damage done to an adjoining owner by the execution 
 of any work authorised by him, is cumulative upon the remedy by 
 action (y)-. But the duty of taking care does not arise where the 
 excavator is ignorant of the existence of the thing which may be 
 injured by the want of care. Thus, where a landowner excavated 
 in his own land close to a cellar of his neighbour's, not knowing of 
 the existence of the cellar, it was held that he could not be made 
 responsible for an injury to the cellar (z) ; no right to support 
 having been gained by long enjoyment {ante, p. 124). There is no 
 duty imposed by the Metropolitan Building Act upon a building- 
 owner, who pulls down a party-wall under its authority, of pro- 
 tecting by a boarding or otherwise the rooms of the adjoining 
 owner which are left exposed to the weather while the wall is being 
 re-built {a). 
 
 {u) Domat. liv. 2, tit. 8, 8S. 1, 10, 11. (^) DoMr.^ Holm^, 1 AA. & E. 506. 
 
 Byrne t. Boadle, ante, p. 169. RohUns Bmdbee Y.OhrutsHo^., 4 M&Gi. 758. 
 
 ^^ Jones, ^wpra. ^ ^ MasBey Y.Ooyderi C& V. m. Jones 
 
 M Trnwfr T. Ohadwich. 3 Sc. 722 ; 3 T. Bvrd.JB. & Aid. 837. _ _ ^ 
 
 ■ (v) Trower r. Ohackdch, 3 Sc. 722 ; 3 t. ^i>-d,JB. & Aid 837. 
 B. N. C. 334 ; 8 So, 19. Walters v. {y) Williams v. GolAng, L. K., 1 C. 
 
 p'iiel M & M. 365. Dames t. Land. 69. „ „ _ „ 
 
 A RaU Go 2 Sc. N. B. 74 ; 1 M, & ^ (.) OhMck y. Trower 8 So 20 ; 6 
 
 Gr. 799. Aud see ante, pp. 60-63, 92, B.-N. C 1. See Fletcher v. Rylands, 
 
 ■in/ 1 9K ante, p. 69. 
 {w)Tayhr r. Stendall, 7 Q. B. 634. («) Thmfson v. HiM, L. B^, 5^0. P. 564. 
 
180 NUISANCES. [CHAP. IV. 
 
 JRuinous party walls. — If injury results from the non-repair of 
 a party-wall, of which the plaintiif and defendant are tenants in 
 common, and there has been a neglect of the duty to repair on the 
 part of the plaintiff, as well as on the part of the defendant, the 
 plaintiff cannot recover damages (&). 
 
 In Fitzherbert's Abridgement we read, " that where there are 
 three tenants in common, or joint tenants of a mill or house which 
 falls to decay, and one will repair but the others will not repair 
 the same, he shall have a writ de reparatione faciendd against them, 
 and the writ is such, &c. And so, if a man have a house adjoining 
 to my house, and he suffers his house to lie in decay to the annoy- 
 ance of my house, I shall have a writ against him to repair 
 his house in such form: 'Conmiand A that, &c. he cause to be 
 repaired his certain house in N, which threatens destruction to the 
 nuisance of the freehold of B, in the same town, which he ought 
 and hath been used to repair ' " (c). 
 
 Insecure fences, hedges, and gates. — When lands are burthened 
 by grant or prescription with the servitude of maintaining a wall, 
 fence, hedge, or gate for the beneiit of the adjoining land (ante, 
 p. 125), the occupier of the servient tenement will, as we have 
 seen, be responsible in damages to the occupier of the dominant 
 tenement if he allows the wall, fence, &c., to be ruinous and 
 defective, so that cattle and sheep break through the fence and 
 stray from one tenement to the other. The occupier of the dominant 
 tenement is entitled to the benefit of his field for turning in other 
 people's cattle as well as his own stock ; and if he takes in another 
 man's horse, and the horse gets through a ruinous fence, which the 
 adjoining occupier ought to have repaired, and falls into a pit on 
 the adjoining land and is killed, the occupier who ought to have 
 repaired the fence is, as we have seen, responsible for the full 
 value of the horse to the occupier of the field from which the horse 
 strayed (d). 
 
 Railway fences — Statutory servitude imposed -upon railway com- 
 panies of keeping up and maintaining fences. -^Th.& General Eailway 
 Act, 8 & 9 Vict. c. 20, which enacts (s. 68) that railway companies 
 shall make and maintain fences for separating the land taken for 
 the use of the railway from the adjoining lands, and for preventing 
 the cattle of the owners or occupiers thereof from straying thereout 
 by reason of the railway, applies only to adjoining land of other 
 persons (e), and does not impose upon railway companies any greater 
 liability in respect of the maintenance of fences than is imposed by 
 
 (ft) See CTmunOir v. Sohinaon, i Exch. {d) Booth t. Wilson, 1 B. & Aid 59 • 
 
 , ■ T,. ,x ""*«> P- 165. 
 
 (c) Pitz.N-at Brev.l27;Cb.Litt 56 b. (e) Mmfdl v. South Wales Rail. Co., 
 
 ThiB writ was abolished by 3 & 4 Wm. 4, 8 O. B., IT. S. 625 : 29 Law J C P 
 
 C. 27,6.86. 316 aw «., V. JT. 
 
SECT. l.J EAILWAY FENCES, STATIONS, ETC. 181 
 
 the common law upon occupiers who are bound to maintain and 
 repair fences for the benefit of the adjoining occupiers (/). Eailway 
 companies, therefore, are not bound to fence against trespassers 
 upon the adjoining lands, and persons who are neither the owners 
 nor occupiers thereof Where the plaintiff's sheep escaped from 
 his own land into the adjoining close, and were trespassing there, 
 and then passed on to the defendant's railway, from defect of fences, 
 and were killed by a train, it was held that the defendants were 
 not responsible for the injury ; for the plaintiff was not the owner 
 or occupier of land adjoining the railway, and the company, con- 
 sequently, was not bound to fence against him {g). And where 
 cattle strayed into a high-road adjoining a railway, and through 
 defect of fences got upon the railway and were killed, it was held 
 that the company was not responsible for the injury, as the cattle 
 were trespassers on the highway, and the owners of the cattle were 
 not occupying the road with their cattle at the time they strayed 
 from the road on to the railway (A). 
 
 But if cattle are passing along a highway under the care of the 
 servants of the owner, the latter is lawfully using the way, and is 
 deemed to be a temporary occupier of the highway, and, conse- 
 quently, an occupier of land adjoining the railway within the words 
 of the statute, so as to render it incumbent upon the company to 
 maintain fences for the safety of his cattle so traversing the high- 
 way. "Where a colt strayed from a field on to a public road, and 
 the servants of the owner of the colt went in pursuit of it, headed 
 it, and drove it back along the highway towards the field from 
 which it had escaped, and the colt turned through an open gate 
 into a coal-yard abutting upon a railway, and not fenced therefrom, 
 and passed on to the railway, and was kiUed by a passing train, it 
 was held that the railway company was responsible for the accident, 
 as the owner's servants were in the act of driving the colt home at 
 the time it escaped through the open gate, and the colt was not 
 then trespassing upon the highway (i). But there is no duty 
 imposed by statute or by the common law upon railway companies 
 to fence off from their railway their own yards and inclosures 
 around their stations ; and if cattle left in their yards stray there- 
 from, from the want of such fences, and get on the railway, and 
 losses arise, the company is not responsible for such losses, 
 imless it be shown that the cattle were under the care of the com- 
 pany's servants, or that the delivery of them was proceeding (;), 
 
 (/) Manch. Sheff'. cfc Idnc. Hail. Co. v. <Sie. Bail. Co., ]2 C. B. 174. 
 
 Wallis, li C. B. 224 : 23 Law J., C. P. (h) Manch. Sheff. & Line. Hail. Co. v. 
 
 85. Buxton r. NoHh East. Rwy., L. E., 3 Wallis. 14 C. B. 224 ; 23 Law J., 0. P. 85. 
 
 Q. B. 549. See anU, p. 147. See, how- (i) Mid. Rail. Co. v. DayUn, 17 C. B. 
 
 ever, Bessant t. Gt. West. Bail. Co., 8 129. 
 
 0. B. N. S. 368. {}) Booth v. North East. Bwy., L. E., 2 
 
 (a) BicketU V. East & West India Docks, Exch. 173. 
 
182 NUISAITCES. [CHAP. IV. 
 
 and that they had failed to take proper means to prevent the cattle 
 from straying (Jc). 
 
 Negligmt use and managemmt of railway stations — Insufficient 
 lights and guards.— li is not sufficient for the lights at the station 
 of a railway company to be quite sufficient for the company and 
 their own servants, who know the premises, and are perfectly con- 
 versant with the approaches. They must be enough to guide and 
 direct strangers who are wholly unacquainted with the locality. 
 A degree of light which will enable a person who is familiar with 
 a place to see all about him, and understand where he is, may not 
 be sufficient to enable a person who is unacquainted with, or has 
 an imperfect knowledge of, the locality, to ind his way or to guard 
 against danger. " Eailway companies are to light their railway," 
 observes Maule, J., "not for their own servants alone, but for 
 persons who have never been there before, and who may be in a 
 great hurry to reach the train; and they are to light it, so as to 
 enable them to see their way ... If they choose to allow people 
 to cross the line at the last moment, they should have a person to 
 point out to passengers who are in a hurry the right course for 
 them to take ; or if they have not a man, they might have a board 
 pointing to the direction : for they are bound to do what is needful 
 for the safety of their passengers." Where, therefore, the plaintiff, 
 being on his return-journey with a return-ticket, and, having got 
 to the wrong side of the , railway, crossed the line to get to the 
 return-train at a place where there was no proper, crossing, there 
 being no person to point ov-t to him the proper crossing, and fell 
 over a switch-handle, which he could not see for want of light, it 
 was held that the company was responsible for the injury he sus- 
 tained (V). And so where the plaintiff, not being able to cross to 
 the exit side of the station, by reason of the train by which he had 
 just arrived blocking up the proper crossing for ten minutes or a 
 quarter of an hour, crossed behind the train, and fell over a 
 hamper (m). 
 
 But, in order to make out a case of negligence or of neglect of 
 duty on the part of the company, it must be shown that they used 
 or managed their property in such a way as to render it likely to 
 be a source of danger to their passengers, and persons lawfully 
 using the station (n). It is not enough to show that they have 
 doors opening upon the platform, and steps leading froni those 
 doors, and that the plaintiff tumbled down the steps, without show- 
 
 Qc) Solerts v. Gt. West. Hail. Co., i C. 730; 28 Law J., Exoh. 348. 
 
 B. 506 ; 27 Law J., C. P. 266. MairfeU (m) Nicholson v. Zanc. & YorksUre 
 
 T. South Wales Sad. Co., 8 C. B., N. S. SaU. Co., 34 L. 'J., Exoh. 84. And see 
 
 534. Holmes V. North East. Bwy., 38 L. J., 
 
 (I) Martin V. Gt. Northern SoaI. Co., Exch. 161. 
 
 16 C. B. 180 ; 24 Law J., 0. P. 209. (») Bv/rgess v. Gt. West., 32 Law T. B. 
 
 BirJiet t. Whitehaven June, i H. & N. 76. 
 
SECT. 1.] RAILWAY BRIDGES, EMBANKMENTS, ETC."'' 183 
 
 ing that the steps are more than ordinarily dangerous (o). There is 
 no obligation on them, for instance, to proTide hand-rails, and the 
 steps may be tipped with brass, though possibly a different metal 
 might be safer (j9). ^ISTor is it enough to show that the company 
 had a weighing-machine on the platform, and that the plaintiff 
 tumbled over it. In these cases it is always a question whether 
 the mischief could reasonably have been foreseen, and whether 
 precautions ought not to have been taken to guard against it (§■). 
 Where rules are promulgated by a railway company for the 
 management of a station, and injuries are caused by the servants 
 of the company endeavouring to carry these rules into effect, the 
 company is responsible in damages, unless the injured party brought 
 the mischief upon himself by his own negligence (r). 
 
 Ruinous and insecure railway bridges, viaducts, and emhankments. 
 — ^Every railway company in the actual possession and occupation 
 of its line of railway is responsible for the maintenance and pre- 
 servation in a good state of repair of all its bridges, viaducts, and 
 embankments, so that if any injuries are sustained either by per- 
 sons travelling along a highway under a bridge or viaduct, or by 
 passengers travelling along the line, from the ruinous and insecure 
 state of such bridge or viaduct, the .railway company will be 
 responsible for the injury, whether it arose from their own neglect 
 in not providing needful reparations, or from original faulty con- 
 struction of the fabric by their engineer or contractor (s). If a 
 railway embankment has been injured by some wholly unexpected 
 and 'extraordinary flood, and the rails give way, and the passengers 
 are injured without any neglect or default on the part of the com- 
 pany, the company is not responsible for the injuries that may be 
 sustained by the passengers (f) ; but every railway company is 
 bound to construct and maintain its embankments and earthworks 
 in such a manner as to be capable of resisting aU the violence of 
 the weather, which may be expected at some time or another, 
 though rarely, to occur, and if it fails in this duty it wiU be responT 
 sible in damages for negligence (u). 
 
 Neglect of railway comparms to erect and maintain hridges over 
 highways.— By 8 & 9 Vict. c. 20, s. 46, it is enacted, that if the 
 line of railway cross any turnpike-road or public highway, then 
 (except where otherwise provided by the special Act) either such 
 
 (o) Toomey v. Land. & Br. Rail.' Co., («) AnU, pp. 170—172. Chester t. 
 
 3 C. B., N. S. 146; 27 Law J., C. P. 39. Solyhead BaU. Co., 2 Exch. 251. As to 
 ( v) Orafter v. Metrop. Bmy., L. K., 1 bridges at stations for passengers to cross 
 
 C. P. 300. ty, see Longmore t. Gt. West. Rwy., 35 
 
 '(g) Gornman T. East. Co. Rail. Co., L. J., C. P. 135. , ^, ^ „ ., _ „„ 
 
 4 H. & N. 785 ; 29 Law J., Exch. 94. («) Withers v. North Kent RaU. Co., 27 
 M rose y.Lam. & York Rail. Co., 2 Law J., Exch. 417. 
 
 H & N 728 • 27 Law J., Exeh. 249; {«) &t. West. Bail. Co. of Ccmadar. 
 
 post ch 5 Fawcett, 1 Moore's P. C. C, N. S. 120. 
 
184 NUISANCES. [CHAP. IV. 
 
 road shall be carried over the railway, or the railway shall be 
 carried over such road, by means of a bridge, such bridge to be 
 maintained "with the immediate approaches," at the expense of 
 the company ; but it is provided that, with the consent of two or 
 more justices in petty sessions, it shall be lawful for the company 
 to carry the railway across any highway other than a public 
 carriage-road on the level. Under this section the railway com- 
 pany is bound to keep in repair the immediate approaches to the 
 road where the road is carried over the railway (x), but not where 
 it is carried under it (y). The railway company is also liable, 
 under s. 58, to make good the damage done to any road during the 
 construction of the works by carts, &c., passing along it, although 
 such carts are not theirs, but belong to the contractor who has 
 engaged to make the railway («). 
 
 Negligent management of railway-gates placed across public car- 
 riage-roads. — When a railway crosses any turnpike-road, or public 
 carriage-road on a level, the company must, unless otherwise 
 authorised by their special Act, erect and at all times maintain 
 good and sufficient gates across such road, on each side of the 
 railway where the same shall communicate therewith, and employ 
 proper persons to open and shut such gates, and keep them con- 
 stantly closed across the road on both sides of the railway, except 
 during the time when horses, cattle, carts, or carriages passing 
 along the road shall have to cross the railway; and the gates 
 must be of such dimensions and so constructed as, when closed, 
 to fence in the railway, and prevent cattle or horses passing along 
 the road from entering upon the railway (s. 47). This section 
 does not authorise a person passing along the highway to open 
 the gates himself, although after waiting a reasonable time no 
 servant of the company appears to do so, and if owing to 
 his opening the gates he sustains an injury the company is not 
 responsible {a). 
 
 "Wherever this section of the statute, or one of a similar import, 
 is in force, it imposes upon the railway company governed by it 
 the duty of closing the gates across public carriage-roads carefully 
 against everything passing lawfully or unlawfully along the high- 
 road. Where, therefore, the plaintiff's horses strayed from his field 
 into the high-road, and passed from thence through an open gate, 
 and got upon a railway, and were Idlled by a passing train, it was 
 held that the railway company was responsible for the loss, as the 
 obligation to keep the gates closed imposed upon them the duty 
 
 i'>)^/f'}'^-^<>rtJi' staff. Hwy., 29 L.;!., (z) West Riding Rvyy. y. Wahefield 
 
 ^V C- 150. Board of Health, 33 L. J., M. C. 174. 
 
 (y) Land. & NoHh West. Rwy. v. (a) Wyatt v. Gt. West. Rwy., 34 L J 
 
 Skerton, 33 L. J., M. C. 158. Q. B. 204 {diss. Blackburn, J.;. ' 
 
SECT. l.J RAILWAY GATES — CANALS, ETC. 185 
 
 of closing them carefully against everything passing lawfully or 
 unlawfully along the high-road (&). 
 
 Negligent management of gates placed across tramways. — Where 
 a railway company were the owners of a tramway which crossed 
 their railway on a level, and which tramway they allowed the 
 public to use on payment of toU, it was held that the law imposed 
 upon the railway company the duty of taking all reasonable pre- 
 cautions for the protection of the public using the tramway, and 
 where fences and gates are put up for the protection of the public, 
 the company is responsible for the consequences resulting from 
 their negligently leaving the gates open (c). 
 
 Leaving open accommodation gates. — By s. 75 it is further enacted, 
 that if any person omit to shut and fasten any gate set up at either 
 side of the railway for the accommodation of the owners or occu- 
 piers of the adjoining lands, as soon as he, and the carriage, cattle, 
 or other animals under his care have passed through the same, 
 he shaR forfeit for every such offence a sum not exceeding forty 
 shillings. 
 
 No duty is imposed upon railway companies to watch and keep 
 closed gates put up for the accommodation of an adjoining landed 
 proprietor, whose land extends along both sides of a railway. And 
 where a railway company provides the adjoining landowners with 
 keys for the gates, the company is not responsible for the destAie- 
 tion of cattle straying upon the line in consequence of the gates 
 being left open {d) or insecurely fastened. And if the plaintiff 
 had the means of making the gate secure, and neglected them, his 
 own neglect in the matter will be a bar to the maintenance of an 
 action against the railway company for the injury he has thereby 
 sustained (e). 
 
 Dangerous Canals. — Every canal company, so long as it keeps its 
 canal open for the public use of aU who may choose to navigate it, 
 is bound to take reasonable care that they may navigate it without 
 danger to their lives or property (/). Every canal company is 
 bound also to take all reasonable and proper precautions for the 
 protection of the public, where the canal intersects pubhc thorough- 
 fares. In such cases there is a common-law obligation on the 
 company to make and maintain sufficient bridges with proper rails 
 and lights, such as all persons passing along the highway can safely 
 use. When the high-road traverses the canal by a swing-bridge, 
 and the bridge is opened for the passage of boats and vessels, the 
 
 (6) Pwwcett V. Torh <fc North Mid. Mil. (e) Eaigh. v. Land. & North- West. Mil. 
 
 Co 16 Q B 618 ^"-j ^ ^- ^- ^■ 
 
 i'c) Marfeil v. South Wales Mail. Co., 8 (/) Lane. Canal Co. v. Pwnmhy \\ 
 
 P ■R N" c! rjQK Ad. & E. 243. Q^bbs v. Trustees Liv. 
 
 id)mUy. Lond. & S. W. MU. Co., 2 Doel, 27 Law 3 Exck 321 ; 3 H & N. 
 
 H. & N. 429 ; 26 Law J., Exoh. 349. 164 ; 35 L. J., Exoh. 225 ; L. K., 1 App. 
 
186 NUISAN0B6. [CHAP. IV. 
 
 company is bound to provide sufficient lights, or persons to -watcli 
 and warn passsengers, or to have some apparatus attached to the 
 bridge itself, to protect passengers when the bridge is open, and 
 prevent them from falling into the water {g). But if the canal has 
 been demised to a lessee, who is in the actual possession and 
 occupation of it, and who receives the toll for the use of it, it is not 
 then the duty of the proprietors of the canal to maintain and repair 
 the canal, unless the particular statute under which they are 
 incorporated expressly imposes that duty upqn them Qi). A canal 
 company is not bound, however, to fence off its canal from an 
 adjoiaing thoroughfare, unless it is "so near thereto- as to be 
 dangerous to persons using the road ia the line of the road " {i). 
 
 Negligent management of docks and wharfs. — A duty is cast upon 
 trustees and commissioners and other persons who have the receipt 
 of the tolls and the possession and management of a dock or wharf 
 vested in them, to keep the entrance to the dock or wharf free from 
 dangerous shoals and obstructions, and to forbear from having the 
 dock or wharf .open for public use when they know it cannot be 
 navigated or used without danger, whether the tolls are received 
 by them for their own use or in a fiduciary character ; and if they 
 keep the dock or wharf open, and all-ow the danger to continue, 
 and invite vessels into peril, they wiU be personally responsible for 
 any dalmage that may be sustained (It). So if a person who has 
 lawful business on board a ship lying in dock is injured by the 
 insufficiency of a gangway provided by and under the control of 
 the dock company for the purpose of affording access to the ships 
 lying in the dock, the company will be liable for such injury {V). 
 
 Dangerous machinery. — If a corporation causes baths and wash- 
 houses, and wringing machinery, to be erected and used for hire, it 
 is 'bound to take all reasonable care to prevent the machinery from 
 being a source of danger to those who use it {m). 
 
 Injuries to servants from dangerous premises or employment. — 
 Every master who employs servants and workmen to work upon 
 his land, house, or premises, is. bound to take all reasonable pre- 
 cautions for their safety, and if hidden and secret dangers exist 
 upon his premises, known to him and unknown to his workmen, it 
 
 (g) Mmley v. St. Hd. Cam. & Rail. J., Exoh. 321 ; 3 H. & N. 164 : 35 L. J., 
 
 Co., 2 H. & N. 840 ; 27 Law J., Exch. Exeh. 225 ; L. E., 1 App. Oa. 93. And 
 
 164. see Thomjosm v. North East. Sail. Co., 2 
 
 (h) Walker v. Goe, 4 Exoh. 360 j 27 B. & S. 106 ; 31 Law J., Q. B. 194 ; 30 
 
 Law J., Exoh. 427. As to the common- ib. 67. Mersey Docks, &c. t. PehhaUow, 
 
 law duty of the actual occupier to keep 7 H. & N. 329 ; post, ah. 16, sect. 1. 
 
 his premises in such a state as not to be (l) Smith v. Lond. Dock Co., L. B., 3 
 
 a source of annoyance to his neighbours, 0. P. 326. 
 
 see anU, p. 162. (to) Cowley v. Mayor, &c. of Stmder- 
 
 (i) Sinks r. South York & Mver Dm, land, 6 H. & N. 565 ; 30 La* J., Exch. 
 
 §•0., 3 B. & S. 244. 127. White v. PUaims, amte, p. 176. 
 
 {h) Cms V. Trust. Liv. Dock, 27 Law 
 
SECIT. l.J INJUEIES TO SERVANTS. 187 
 
 is his duty to disclose them to the latter, that they may take pre- 
 cautions against them (re). If a master was to order his servant to 
 take a lighted candle amongst packages known by him, but not 
 known by the servant, to contain gunpowder, the master would be 
 responsible for any injury sustained by the latter from the unknown 
 danger and unexpected risk to which he had been exposed. So if 
 a servant be employed to cut up diseased cattle (o). It is other- 
 wise if the servant accepts of the employment knowing of the risk 
 he runs (see infra). If the danger is unknown to the master, and 
 there is no negligence on his part, he cannot be made responsible 
 in damages (p) ; as where a floor of a warehouse gave way and 
 injured a workman who was thereon (q). So if a railway company 
 employs workmen upon its tunnels, sidings, or stations, it is guilty 
 of negligence if it conducts its trafG.c so as to expose the workmen 
 to unexpected and unforeseen dangers, which they had no means of 
 guarding against (r). 
 
 Exemption of the master from liability when the danger is known 
 to the servant. — But the master is not responsible for the dangerous 
 state of his premises, if those dangers are known to the servant, and 
 the latter has accepted the employment knowing of the attendant 
 risks, and having an opportunity of guarding against them by his 
 own vigilance and care. Where the plaintiff alleged that he had 
 been hired by the defendant to perform at the defendant's theatre, 
 and that on part of the stage there was a hole in the floor, along 
 which the plaintiff had to pass in the discharge of his duty as a 
 performer, and that it was the duty of the defendant to light the 
 floor sufficiently, so as to prevent accidents to those who passed 
 along it, it was held that no such duty was cast upon the defendant. 
 " A person," observes Erie, J., " must make his own choice whether 
 he will accept employment upon premises in this condition ; and if 
 he do accept such employment, he must also make his own choice 
 whether he will pass along the floor in the dark, or carry a light. 
 If he sustain an injury in consequence of the premises not being 
 lighted, he has no right of action against the master, who has not 
 contracted that the floor shaU be lighted." If the servant wishes 
 the premises to be kept in any particular state with respect to 
 lighting and fencing, he must provide for it by express contract (s). 
 Where the workman is employed in the use of dangerous machinery 
 
 (n) WilUams v. ClougJi, 3 H. & N. (?) Srovm v. Acmngton Cotton Co., 34 
 
 258 ; 27 Law J., Exch. 325. MeUors v. L. J., Exch. 208. 
 
 Shww', 1 B. & S. 444. AsAworth v. Stan- {r) Vase v. Lame. iSe York. Rail. Co., 2 
 
 wix, 30 Law J., Q. B. 183. H. & N. 728 ; 27 Law J., Exch. 249. 
 
 (o) Dailies v. Enqlamd, 33 L. J., Q. B. (s) Seymour v. Maddox, 16 Q. B. 332. 
 
 321. ■ Boleh V. Smith, 7 H. & N. 736 ; 31 Law 
 
 (p) Potts V. Port Owrlisle die. Co., 2 J., Q. B. 201. Mobertson r. Adamson, 24 
 
 Law TENS 283 • 8 W. R. 524. Sc. Sess. Cass. 1231. Potts t. PlunJeett, 
 
 ■ " ■ ■ 9 Ir. C. L. E. 290, 
 
188 NUISANCES. [CHAP. IV. 
 
 furnished by tlie employer, and is, or professes to be, acquainted 
 with the use of the machinery, and the care necessary to be taken 
 to guard against accident, and, notwithstanding this, sustains injury 
 from his own want of care and caution in the use of it, he has, of 
 course, no ground of action agaiastthe employer (t). But if an Act 
 of Parliament requires machinery to be fenced, and if is left 
 unfenced, and the servant complains, and the master induces him 
 to continue his work by telling him that proper protection shall be 
 afforded, the master takes upon himself the responsibility of any 
 accident that may occur (u). 
 
 Injuries to workmen from defective hoisting-tacMe in mines and 
 insecwe scaffolding and ladders. — It has been held, in a Scotch case 
 in the House of Lords, that the owner of a mine is bound to exercise 
 ordinary care and vigilance to keep the shaft of the mine in a safe 
 state, and the machinery for lifting people from the mine, and 
 lowering them into it, in secure condition {£), And it is in aU cases 
 the master's duty to be careful that his workman be not induced to 
 work under the notion that the tackle, scaffolding, or rope with 
 which he works is secure, when the master knows, or has reasonable 
 ground for believing, that it is unsafe and dangerous. If he inter- 
 feres in the conduct and management of the work himself, he is 
 bound to select sound and safe materials ; and if he knowingly 
 allows rotten timber, rotten poles, or rotten ropes to be used in the 
 construction of a scaffold, and injury is sustained therefrom by his 
 servants or workmen, he will be responsible in damages {y)'. But 
 if he does not in any way interfere himself, and employs a compe- 
 tent foreman to superintend the work, and select the materials, and 
 the foreman selects unsound and unsafe materials, or laaows that 
 those he has selected have become unsafe, which cause injury to 
 the workmen working under the foreman's directions, the master is 
 not responsible, as the default is not in him, but in the foreman 
 and fellow-servant of the injured workman, and the case then 
 ranges itself with that class of cases where it has been held, that 
 the master is not responsible for injuries to one fellow-servant 
 caused by the negligence of another fellow-servant in his employ (z). 
 
 Injuries to guests from the dangerous state of the premises of their 
 
 {t) Dynen v. Leach, 26 Law J., Exoh. (s) Wigmore v. Jay, 5 Exch. 358 ; post, 
 
 22i. Barton's Hill Coal Co. v. kdd, 3 ch. 5. Williams v. Clough, 3 H. & N. 
 
 Macq. 294. See WatUng v. OastUr,'li. 258; 27 Law J., Exeh. 326. QriffithsY. 
 
 K., 6 Exch. 73. Gidlow, lb. 404. Farwell v. Boston, Sfc. 
 
 (u) Holmes v. Glarie, 30 Law J., Exch. Bail. Co., 3 Maoq. 316. Ormond v. RoU 
 
 135 ; 31 lb. 356. Weems v. Mathieson, land. Ell. Bl. & Ell. 106. ScoU v. Oraig, 
 
 4 Maoq. H. L. C. 216. 24 So. Sess. Gas. 789. Sea/rle r. 
 
 {x) Brydon v. Stewwrt, 2 Macq. 34. 11 C. B., N. S. 429; 31 Law J., 0. P. 
 
 (y) Roberts v. Smith, 26 Law J., Exch. 106. Oallaglier v. Piper, 33 L. J., C. P. 
 
 319 ! 2 H. & N. 213. Senior v. Ward, 329. PeUham v. Englamd, L. R, 2 Q. B. 
 
 28 Law J., Q. B. 139. MeOors t. Shaw, 33. 
 1 B. & S. 444. 
 
SECT. 1.] CONTfilBUTORY NEGLIGENCE. 189 
 
 liost. — A man who invites and receives visitors at his house is under 
 the same obligation and liability as regards them, in respect of 
 unusual and unsuspected dangers on his premises, as he is towards 
 his own servants and members of his family, and is not responsible 
 for injuries arising from doors badly hung, and which are dangerous 
 and unfit to be opened, unless he was himself aware of the dan- 
 gerous state of the door, and the guest was wholly ignorant of it (a). 
 If the dangers are patent and visible, the visitor who comes to, and 
 is received within, the house, must share those dangers in common 
 with the other members of the family (6). But there is a distinc- 
 tion between a visitor who is a bare licensee, and a person coming 
 ,on lawful business, as to a. shop, warehouse, raiLway, or ship, who 
 may recover for injuries that a visitor would not be entitled to 
 recover for (c). 
 
 Contributory negligence on the part of the plaintiff. — If the negli- 
 gence of the plaintiff hiihself or of his servants has been the proxi- 
 mate cause of the injury of which he complains, he has no ground 
 of action (d). If, therefore, the plaintiff does not take due and 
 proper care to keep his cattle within bounds ; if he or his servants 
 leave gates open which they ought to have closed ; or if he allows 
 cattle to be driven across a railway by little boys who are unable 
 or unlikely to exercise proper care and forethought, and in con- 
 sequence thereof cattle stray on the line and get killed, he cannot 
 .recover compensation from the railway company for the loss (e). 
 Where a railway crossed an occupation-way for horses and cattle, 
 along which there was also a public footpath, and the company, 
 not being aware of the public footpath, neglected to apply for the 
 consent of justices for crossing the cattle-way on a level, but made 
 their railway, and erected lofty gates on each side of the railway 
 where it crossed the occupation-way, and gave keys of the gates 
 to each of the adjoining occupiers who were entitled to use the 
 occupation-road, and the servant of the plaintiff, one of the oc- 
 cupiers, who was in the habit of driving the plaintiff's cows daily 
 backwards and forwards across the line, received a key from the 
 company, and lost it, and after that fastened the gate by thrusting 
 a piece of wood through the staple, and the gate being left open, 
 two colts of the plaintiff's strayed from his field along the occu- 
 pation-way, through the open gate, upon the line of railway, and 
 were killed by the passing train, it was held to be a question for 
 the jury whether the negUgence of the plaintiff had contributed to 
 
 (a) And see CoUis v. Sdden, L. E., 3 Sail 38 L. J., Exch. 161 ; L. E. i Exoh. 
 
 C. P. 495. 254 ; 6 lb. 123. John t. Bacon, L. E., 5 
 
 (6) Southcote v. Stwrdej/, I H. & N. C. P. 437. 
 
 2i7. (d) Ante, pp. 19 — 22 ; post, ch. 10, s. 1. 
 
 (c) Indermaur v. Dames, L. E., 1 0. P. (e) Saigh v. Land, f North- West. Rail. 
 
 274 ; 2 lb. 311. Holmes v. North-East, Qo., 8 W. E. 6, 
 
190 NUISANCES. [CHAP. IT. 
 
 the accident ; and they being of opinion that it had, it was held 
 that the defendant was entitled to a verdict (/), 
 
 Where the plaintiff's right to recover is not defeated ly his leing a 
 trespasser. — If the plaintiff has sustained injury from man-traps or 
 spring-guns placed on the defendant's land, or from faUing into an 
 unfenced and unguarded pit or well sunk withiu twenty-five yards 
 of any public carriage-way, it is no answer to the plaintiff's claim 
 for damages to say that he was trespassing on the defendant's land, 
 and that the injury was caused by his oVn misconduct (ante, 
 pp. 167, 171). If the defendant has, by putting strong-smeUing 
 meats into traps on his land, tempted the plaintiff 's dogs or cats to 
 the traps to their destruction, it is no answer to say that the animals 
 were trespassing on the defendant's land at the time they came to 
 grief {ante, p. 168). 
 
 If the defendant makes a path to his house, and places unseen 
 and unexpected dangers in or closely adjoining to the path, it is no 
 answer to injured parties claiming compensation to say that they, 
 had no business to come upon the land {ante, p. 170). So, if the 
 defendant negligently leaves a vault or area unfenced and un- 
 guarded, so close to a street or public highway as to be dangerous 
 to passengers, it is no answer to a claim for damages by persons 
 who have fallen into the vault whilst endeavouring to keep to the 
 high-road, to show that there was a narrow intervening strip of the 
 defendant's land extending between the highway and the area, on 
 which the plaintiff was trespassing at the time he fell into the 
 pit {(f). ■ But wherever a person designedly deviates from the high- 
 way and commits a trespass, in order to make a short cut across 
 the defendant's land, and in so doing falls into an open, unguarded 
 vault or cellar, more than twenty-five yards distant from the high- 
 way, the defendant is not responsible for the injury (A). And 
 whenever a person neglects to keep a proper watch upon his flocks 
 and herds, and allows them to trespass on the highways and bye- 
 ways and adjoining land, and the trespassing cattle get injured, the 
 plaintiff, being himself in default, may have no remedy for the 
 injury he sustains (i). 
 
 Nuisances and injuries from the keeping of ferocious animals. — 
 Whoever keeps an animal accustomed to attack or bite mankind, 
 with knovdedge of its dangerous propensities, is,, prima facie, liable 
 to an action for damages at the suit of any person attacked or injured 
 by the animal, without proof of any negligence or default in the 
 securing or taking care of it. The gist of the action is the keeping 
 
 (/) mm T. Land. & S. W. Sail. Co., 2 Taylor, L. E,, 1 C. P. 63. 
 
 H. & N. 429 ; 26 Law J., Exch. 349. (/i) ffardcasOe v. South York, &c. Hail. 
 
 (</) Barnes v. Wa^d, 9 C. B. 392 ; 19 Co., 4 H. & N. 74. Stone y. Jachson, 16 
 
 Law J., C. P. 195 ; wnU, p. 170. See R. Q. B. 199 ; anU, pp. 168, 169. 
 
 V. Daait, 34 L. J., M. C. 119. HadUy t. (i) AnU, pp. 22, 180, 181. 
 
SECT. 1.] FEKOOIOUS ANIMALS. 191 
 
 the animal after knowledge of its mischievous disposition (Jc). 
 But a man is entitled to keep a ferocious dog for the protection of 
 his premises, and to turn it loose at night, provided the bsirking 
 of the dog does not disturb the rest of the neighbours and create a 
 nuisance (ante, p. 167). And, therefore, where the defendant, for 
 the protection of his yard, kept a fierce dog, which was tied up all 
 day and was let loose at night, and the defendant's foreman in- 
 cautiously went into the yard after dark, knowing that the dog was 
 let loose at night, and was thrown down and bitten by the dog, it 
 was held that he was not entitled to an action for damages (l). 
 But a man has no right to put a ferocious dog in such a situation 
 in the way of access to his house, that a person innocently coming 
 there for a lawful purpose in the day-time may be injured by it. 
 And so with respect to a foot-path, though it be a private one, a 
 man has no right to put a dog with such a length of chain, and so 
 near the path, that he could bite a person going along it (m). 
 
 There is a difference between beasts that are ferce nahirce, as 
 lions and tigers, which a man must always keep chained up at his 
 perU, and beasts that are mansuetoe naturce, and break through the 
 ordinary tameness of their nature, such as oxen and horses. In 
 the latter case, an action lies only if the owner, whether an 
 individual or corporation, has had notice of the mischievous nature 
 of the beast (re). In the former case, an action hes without such 
 notice (o). 
 
 There is no distinction between the case of the keeping of an 
 animal which breaks through the ordinary tameness of its nature, 
 and becomes fierce, and is known by the owner to be so, and the 
 keeping of one which is ferce natiM-ce (p). If a dog has once bitten , 
 a man without provocation, or under circiimstances which would 
 not excite any dog of good temper to bite, and the owner has notice 
 of it, it is his duty to chain up or muzzle the dog ; and if he lets him 
 go about, or lie at the door unmuzzled, and another person is bitten 
 under similar circumstances, the owner of the dog will be respon- 
 sible for the injury (q). It is not material whether the defendant 
 is the owner of the dog or not. It is enough for the maintenance 
 of the action that he keeps the dog; and the harbouring a dog 
 about one's premisfes, or allowing him to be or resort there, is a 
 sufficient keeping of the dog to support the action. As soon as 
 a dog is known to be mischievous, it is the duty of the person 
 
 •tt) May V. Surdctt, 9 Q. B. 110. (o) Sex vEuggins, 2 Ld. Raym 1583. 
 
 {I Broch T. CopeUnd, 1 Esp. 203. Jenkvis v. Turner, 1 ^b. 110. Mason v. 
 
 m)Tmdal, C. J., Sarch v . Blackhurn, Keclmg 1 ib. SOS. 
 4 C & P 300 • M & M. 505. Om-tis v. (p) Jackson v. bmitJison, 15 M. & W. 
 
 Mik 5 C. & V. 489. , ^ 565 { If La,v J., Exck 311 ' 
 
 (r») StUes V. Canlrf Steam Navv/. Co., (?) Cliarlmod v. Grei^, 3 C. &K. 48. 
 
 33 U J., Q. B. 310. 
 
192 NUISANCES. [CHAP. IV. 
 
 whose premises the dog frequents, to send him away, or cause him 
 to be destroyed (r). The same rule of law prevails with regard to 
 a bull which is known to have run at a man, and to be therefore 
 dangerous (s). 
 
 Effect of putting up a notice to leware of the dog. — The putting 
 up a notice to beware of the dog will not exempt the owner of 
 the dog from liability to a person injured, if it appears that the 
 latter could not read, or did not in fact read, the notice. If the 
 plaintiff was lawfully in a way leading to the house, and was, in 
 point of fact, ignorant of the notice, and of the danger from the 
 dog at the time he was bitten by it, he will be entitled to compen- 
 sation in damages (t). 
 
 Dogs worrying sheep and destroying game. — " If a man has a dog 
 that Mils sheep " (or hunts on his own account and destroys game), 
 '•' the master of the dog, being ignorant of such quality, shall not 
 be punished for this killing ; but if he has notice of the quality of 
 the dog, it is otherwise'' (m). By 25 & 26 Vict. c. 59, s. 1, every 
 owner of a dog in Ireland is made liable in damages, for injury 
 done to any sheep by his dog, and it is not necessary for the party 
 seeking damages to show a previous mischievous propensity in the 
 animal or the owner's knowledge thereof, or to prove any neglect on 
 the part of the owner. And the law is the same now in England ■ 
 so far as injuries by dogs to sheep and cattle are concerned (28 & 
 29 Vict. c. 60, ante, p. 23). 
 
 The circumstance of a dog being of a ferocious disposition, and 
 being at large, is not sufficient to justify a man in shooting it. To 
 justify such a course, the animal must be actually attacking the 
 shooter at the time he xises his gun (x). 
 
 Of the keeping dogs reputed to have been bitten hy a mad dog. — If, 
 by common report, a dog has been bitten by a mad dog, " it becomes 
 the duty of the owner of the dog so reputed to have been bitten to 
 be very circumspect " in the keeping of it.. Whether the dog said 
 to be mad was mad or not may be mere matter of suspicion, and 
 yet it is not enough for a defendant to say, " I did use a certain 
 precaution." He ought to put it out of the animal's power to do 
 further mischief (y). 
 
 Injuries from driving ferocious animals along a pioblic thorough- 
 fare. — Where the defendant's bull, which was being driven along 
 
 (r) McKone v. Wood, 5 C. & P. 2. See («) Sa/rcli v. BlacTcbum, M. & M. 507 ; 
 
 Smith V. Great East. Bwy., L. E., 2 C. P. ante, p. 170. 
 
 4. By 34 & 35 Vict. D. 56, "The Dogs («) Vin. Abr. Actions, H. pi. 3. 
 
 Act, 1871," stray dogs may be detained Fleeming\. Orr, 2 Macq. H. L. C. 14. 
 
 by the police, and dangerous dogs de- See Read \. Edmards, ante, p. 23. 
 
 stroyed by order of justices. {x) Morris v. Nugent, 7 C. & P. 572. 
 
 (s) BlacTcman v. Simmons, 3 C. & P. Cla/rh t. Webster, 1 C. & P. 104. 
 
 138. Cla/rh t. Arnwtronrj, 24 So. Sess, (z/V M. Kenyon, /pnes v. -Pern/, 1 Esp. 
 
 Cas. 1315. 483. • i' •^"' J' a 
 
SECT. 1.] CARE OF FEKOCIOUS ANIMALS. 193 
 
 the public streets, ran at a man witli a red handkerchief round his 
 neck and gored him, and the defendant, after the accident, was 
 heard to say that the red handkerchief caused the mischief, as a 
 bull would run at anything red, it was held that this was some 
 evidence to go to a jury to show that the defendant knew that his 
 bull was a dangerous animal. " As the circumstance of persons 
 carrying red handkerchiefs is not uncommon," observes Pollock, C.B., 
 " and it is reasonable to expect that in every public street persons 
 so dressed may be met with, we think it was the duty of the defen- 
 dant not to suffer such an animal to be driven in the public streets, 
 possessing, as he did, the knowledge that if it met a person with a 
 red garment, it was likely to run at and injure him " (2). 
 
 The following laws respecting the keeping of ferocious animals, 
 extracted from the Eoman law, are not undeserving of attention. 
 " If an ox has a trick of pushing with his horns, and wounds any 
 one, or causes any other damage, the master who has neglected to 
 shut up the ox, or to give such warning that people might avoid it, 
 shall be answerable for the harm he does." 
 
 " Those who have horses or mules which kick or bite, must 
 either warn people of their being vicious, or take care to have them 
 well watched, otherwise they will be made liable for the damage 
 they may do. If a dog, who has a trick of biting, is not tied up, 
 or if he gets loose for want of being well looked after, and wounds 
 any one, the master of the dog will be liable to make good the 
 damage. But if a dog or other creature bites or does any damage 
 only because he has been provoked, he who has given 'Occasion to 
 the injury that has happened shall be accountable for it ; and if he 
 be the person who has sustained the injury, he is alone to blame. 
 If the beast which has done the damage has been exasperated and 
 stirred up by another beast, the master of the latter beast shall be 
 accountable for the damage." 
 
 " Those who have wild beasts — such as Hons, tigers, bears, and 
 others of the like kind — ought to keep them so that they can do no 
 harm, and they are answerable for all damage that arises from their 
 not being safely and securely kept" (a).' 
 
 (z) Hudson T. Boherts, 6 Bxch. 699; 20 (a) Domat. liT. 2, tit. 8, P. 2. 
 
 Law J., Exch. 299. 
 
19i NUISANCES, [CHAP. IV. 
 
 SECTION II. 
 
 ABATEMENT OF NUISANCES — STATUTOEY EEMEDIES AND PENALTIES — 
 ACTIONS — PROHIBITION— INJUNCTION AND INDICTMENT. 
 
 Abatement of Nuisances. — By the JSTuisances EemoTal Acts (18 
 & 19 Vict. c. 121 (6) ; 23 & 24 Yiot. c. 77 ; 26 & 27 Vict. c. 117 (c) ; 
 29 & 30 Vict. c. 90, s. 14, et seq. ; and 31 & 32 Vict. c. 115), various 
 provisions are made for the ab.atement of nuisances affecting the 
 public health. Sect. 8 of the first-mentioned Act defines what are 
 to be considered nuisances within its provisions, and the second 
 part of the statute enables summary proceedings to be taken before 
 magistrates, who are empowered to make orders for the abatement 
 or prohibition of the nuisance (d). All persons having control 
 over the soil on which a nuisance is suffered to exist, are liable to 
 be proceeded against under this statute («). By the 22nd section 
 the local authority are required, in cases where a watercourse, &;c., 
 has become a nuis"ance, to construct a new sewer. They are not, 
 however, bound to follow the course of the old watercourse, but 
 may make the new sewer through private enclosed land, in any 
 direction they think S.t, and where no sewer existed previously (/): 
 Various statutory powers for the abatement of public nuisances are 
 also given by the Salmon Fishery Acts (24 & 25 Vict. c. 109 (cf) ; 
 28 & 29 Vict. c. 121) {h), the Smoke Prevention Act (16 & 17 
 Vict. c. 128), the Burial Acts (20 & 21 Vict. c. 81, and 22 Vict, 
 c. 1) {i), the Public Health and Local Government Acts (21 & 22 
 Vict. c. 98 ; 23 & 24 Vict. c. 77 ; and 29 & 30 Vict. c. 90, ss. 35 to 
 55), the Sewage Utilization Acts (28 & 29 Vict. c. 75 ; and 29 & 30 
 Vict. c. 90, ss. 1 to 13 (f) ), and by the Metropolitan Building Act, 
 1855 (18 & 19 Vict. c. 122), ss. 69 to 81, which provides for the 
 shoring up and removal of dangerous structures situate in the 
 metropolis and its neighbourhood (Jc). The expense incurred in 
 
 (b) As to the recovery of penalties, be- several persbns join iiji creating a nui- 
 fore justices, Eeg. v. Jenhims, 3 B. & S. sance, see Brown v. Rimell, L. E., 3 Q. 
 116. And see 28 & 29 Vict. c. 127, B. 251. 
 
 post, p. 201. (/) Earl of Derbyv. Bury Improvement 
 
 (c) As to diseased meat, see Toimg v. Commissioners, L. K., 4 Exch. 222 ; 38 
 ' ■■ • >, L. K, 4 Q. B. 166. L. J., Eieh. 100. 
 
 (i) Ex parte Mayor, &c. of Liverpool, (gl) Williams v. BlachwaU, 32 Law J., 
 
 8E. &B. 637. Reg.-v.Bcuteman,i1ha.yT Exch. 174; pos«, p. 199. 
 
 J., M. C. 95. Amys v. Creed, L. E., 4 (A) The appointment of eommissioners 
 
 Q. B. 122 ; 38 L. J., M. C. 22. No pre- and inspectors is continued by 34 & 35 
 
 vious notice is necessary where proceed- Vict. c. 95. And see 33 & 34 Vict. c. 33. 
 
 ings are taken by an inhabitant, and not ( i) See Foster v. Dod, L. E., 1 Q. B. 
 
 by thelocal authority : Cocherv. Cardwell, 475 ; and 34 & 35 Vict. c. 33. 
 
 L. K., 5 Q. B. 15. (j) See 30 & 31 Vict. o. 113. 
 
 (c) Draper v. Sperring, 10 C. B., N. S. (i) Reg. r. Harden, 2 Ell. & Bl. 191 ; 
 
 113 ; 30 Law J., M. C. 225. See Bird post, oh, 21. Sse 32 & 33 Vict, c. §2, 
 V, Mwes, L. E., 3 Esch, 325. Where 
 
SECT. 2.] ENTRY TO ABATE. 195 
 
 the removal of nuisances, the construction of sewers, &c., under 
 many of these local Acts, is recoverable either in the county- 
 court (I), or by order of justices (m). 
 
 A man cannot, at the common law, enter upon his neighbour's 
 land, to prevent the commission of an apprehended nuisance, but 
 he may justify a peaceable entry for the purpose of abating and 
 putting a stop to an existing nuisance. Thus, where the plaintiff 
 had set up poles on his own land, in order to build a house which, 
 when erected, would be a nuisance to the adjoining dwelling-house 
 of the defendant, and the latter entered upon the plaintiff's land 
 and prostrated the poles, to prevent the nuisance, it was held that 
 the entry was wholly unjustifiable (n). But if H builds a house so 
 near mine that it stops my lights, or shoots the water upon my 
 house, or is in any other way a nuisance to me, I may, after pre- 
 vious notice and request to remove the building, enter upon the 
 owner's soil and pull it down, provided the whole house is a 
 nuisance. If part only of the house obstructs my lights ' and 
 creates a nuisance, I am not justified in pulling down the whole 
 building (o). 
 
 Before an entry is made upon the land of another for the 
 purpose of abating a nuisance, notice should be given to the 
 occupier of the land of the existence of the nuisance, and he 
 should be required to abate it himself (p) ; and the plea justifying 
 the entry should contain an averment that notice was given to the 
 plaintiff to abate the nuisance, and that he neglected or refused to 
 do it, whereupon the defendant entered upon the plaintiff's land 
 and abated it himself, using no more violence than was necessary 
 for the purpose (q). 
 
 Where there is any immediate danger to life from the con- 
 tinuance of the nuisance, so as to render it unsafe to wait for its 
 removal by the occupier, the injured party may at. once enter and 
 remove it ; but the facts establishing the necessity should be set 
 forth in the special plea. 
 
 A distinction has been taken between nuisances of commission 
 and nuisances of omission ; and it is said that if the plaintiff was 
 the original wrong-doer, and himself created the nuisance, it may be 
 abated without notice ; but if the nuisance was created by another, 
 and the plaintiff succeeded to the possession of the locm in quo 
 afterwards, then notice to remove it must be given and averred in 
 
 (I) As to proof of the ownereliip of (o) Sex v. Bosewell, 2 Salk. 459. 
 
 the vremkes, MytUng Un. v. Wm-ton, (p) Perry v FtAioe S Q B. 776. 
 
 32 Law J., M. 0. 132. ■^"'^^ t'- •^o""*' 1 H. & G. 1 ; 31 Law J., 
 
 (m) As to parties liable to pay those Exch. 506. 
 
 expenses, see %eh v. Waterloo, &c. Local {q) Oamcs v. Wilhams 16 Q- B. 556 ; 
 
 Board, 33 L. J., M. C. 11. quahfjmg Perry v. Pitzliowe, 8 Q. B. 
 
 (n) Norris v. Baker, I Boll. Kep. 393, 757, 
 
 pi. 15, 
 
 ^ P 2 
 
196 NUISANCES, [CHAP. IV. 
 
 the plea, in order to make out a justification (r). " There is' no 
 decided case/' observes Best, J., " which sanctions the abatement by 
 an individual of nuisances of omission, except that of cutting the 
 branches of trees which overhang a public road, or the private 
 property of the person who cuts them. The security of lives and 
 property may, however, sometimes require so speedy a remedy, as 
 not to allow time to call on the persons on whose property the 
 mischief has arisen to remedy it ; and, in such cases, an individual 
 would be justified in abating a nuisance from an omission without 
 notice. In all other cases of such nuisances, persons should not 
 take the law into their own hands, but follow the advice of Lord 
 Hale, and appeal to a court of justice " (s). 
 
 Abatement of nuisances upon commons. — ^Where an encroachment 
 had been made on a common, and a house built which obstructed 
 the exercise of the fight of conmion, it was held that the commoner 
 might, after notice and request to the wrong-doer to remove the 
 house, puU it down, though the latter was at the time actually 
 present in the house with his family {t). The commoner has a right 
 to puU down and remove a hedge, a gate, or a wall, which obstructs 
 or abridges the exercise of his right {u) ; but he cannot destroy 
 beasts of warren, such as hares or rabbits, although they have 
 increased to such an extent as to destroy all the herbage (v). 
 
 Removal of ruinoios huildings. — The Metropolitan Building Act 
 (18 & 19 Vict. c. 122) provides, as we have seen, for the removal or 
 reparation of structures, certified by their surveyor to be in a 
 dangerous state, and enables the Metropolitan Board of Works (w), 
 in certain contingencies, to pull down and remove such structures, 
 and to charge the expenses incurred in so doing upon the owner of 
 the property, without prejudice to his right to recover the same from 
 the lessee, or other person liable to repair. Section 3 of this statute 
 provides that the word "owner" shall apply to every person in 
 possession or receipt of the whole or any part of the rents or profits, 
 or in the occupation of the tenement other than as tenant from 
 year to year, or for any less term, or as tenant at wUl (x) ; so that, 
 if a tenant for a term of years has sub-let from year to year, and 
 receives rent from his sub-lessee, he is the statutable owner, and 
 upon him the order for expenses must be made. If the occupier 
 be a lessee for a longer term than from year to year, he is then the 
 statutable owner (y). The 83rd to 85th sections provide for notice 
 
 (r) Jones V. WiUiams, 11 M. ftW. 176. (x) See Tnbb t. Good, L. K,, 5 Q. B. 
 
 (s) Lonsdale t. Nelson, 2 B. & C. 311. 443. 
 
 (t) Domes v. Williams, 16 Q. B. 546 ; (y) MowrUyan t. Lababtiondiere, 1 Ell. 
 
 20 Law J., Q. B. 330. But see Jones v. & Ell. 533 ; 30 Law J., M. C. 95. Lahal- 
 
 Jones, ut sup. mondiere v. Frost, 1 Ell. & Ell. 527. La- 
 
 (u) Mason v. Ccesar, 2 Mod. 66. bahnondiere v. Addison, ib. 41 ; 28 Law 
 
 (•») Cooper y. Marshall, ante, -p. IIO. J., M. 0. 225. Peek t. Waterloo, <bc. 
 
 {w) 32 & 33 Vict.c. 82. local Board, ante, p. 195. CaudweU t. 
 
 Hanson, L, B., 7 Q. B. 55. 
 
SECT. 2.] ABATEMENT OF. 197 
 
 being given in certain cases to the proprietor of the adjoining 
 house (z). 
 
 Abatement of nuisances arising from the exercise in excess of limited 
 rights. — Where a person who is entitled to a limited right exercises 
 it in excess, so as to produce a nuisance, and the nuisance cannot be 
 abated without obstructing the enjoyment of the right altogether, 
 the exercise of the right may be entirely stopped, until means have 
 been taken to reduce it within its proper limits. " Thus if a man," 
 observes Alderson, B., " has a right to send clean water through my 
 drain, and chooses to send dirty water, every particle of the water 
 may be stopped, because it is dirty." So, if a man has a limited 
 right to the use of a window, and he enlarges the window consider- 
 ably, the person annoyed by the enlargement of the window may, 
 by erecting a screen or barrier on his own land, stop up the whole 
 of it. The person who is in that way prevented from the exercise 
 of a limited right, because he has turned it into a larger claim, has 
 no other resource than to reduce his window to its ancient size, and 
 then insist on his right to have it tolerated {a). ■ 
 
 If a landlord has been content to allow the public a limited 
 right of way over his lands, and across a brook, by a certain 
 number of stepping-stones, the CoT^amisgioners of Highways have 
 no right to widen the footpath or the stepping-stones, or do . any- 
 thing to increase the public accommodation, or enlarge the right of 
 passage, without the consent of the landowner. If, therefore, the 
 surveyor places flag-stones on the stepping-stones, so as to make a 
 kind of rough bridge, the landowner has a right to remove them (I). 
 So if a riparian proprietor having a prescriptive right to obstruct 
 the flow of a stream with a dam or weir of a certain height, for the 
 purpose of watering his meadows, exceeds his right by enlarging 
 his dam or weir, to the prejudice of another riparian proprietor, the 
 latter may, after notice, remove the enlarged portion of the struc- 
 ture, but cannot lawfully remove the whole dam. Thus, where the 
 plaintiff, being possessed of land the occupiers whereof from time 
 immemorial enjoyed the right of penning back the water of a 
 stream, by means of a dam or weir made with a loose board kept 
 in its place with large stones, fastened the board down with stakes 
 driven into the bed of the stream, and the defendant, who had 
 rights on the same stream, thinking the stakes unauthorised by the 
 plaintiff's ancient right, pulled up both the stakes and the board, 
 it.was held that this was an unjustifiable trespass, for, assuming he 
 had a right to remove the stakes, he had no right to remove the 
 board also (c). 
 
 iz) See Major t. Park Lane Co., L. E. (6) Su^lfe v- Surveyors, &c. Sowerhy, 
 
 n v„ Ca 453 3" '^"''^ ^ ■^■' ^" 
 
 (a) Oawkwell v. Russd, 26 L. 3., Exeh. (c) Gnemladc v. Salliday, 6 Bing. 379. 
 
 Zi. Sae ante, p. 158. 
 
198 NUISANCES. [CHAP. IV. 
 
 Removal of ohstructions in public thoroughfares (d). — A private 
 individnal cannot, of his own authority, abate an obstruction in a 
 public highway, unless it does him a special injury ; and he can 
 only interfere with it as far as is necessary to enable him to 
 exercise his right of passing along the highway. He cannot, there- 
 fore, 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 (e). To 
 justify a private individual in pulling down a wall or destroying a. 
 fence, on the ground of its being an obstruction in a public high- 
 way, it must be shown, not only that the wall or fence encroached 
 upon the public thoroughfare, but that the defendant was unable 
 to enjoy his right of passing along the- road without the removal of 
 the obstruction (/). The placing of a gate across a public carriage • 
 road,! where no gate existed before, is, as we have seen, a nuisance, 
 so that any one having occasion to pass along the thorotighfare, 
 may cut down and destroy the gate (ff). 
 
 The removal of olstructions in watercourses on the land of a third 
 person, by those who have a right to the watercourse, and con- 
 versely the stoppage, on another's land, of a watercourse which 
 would otherwise flow wrongfully on to the land of the person 
 who stops it, must be effected with the least possible damage to 
 the owner of the servient tenement, whether the method adopted 
 (if there be alternative methods of effecting the object) be more 
 onerous to the wrong-doer or not (7i). 
 
 Removal of obstructions to the navigation of navigable rivers. — 
 To justify a private individual in breaking down a weir or sluice, 
 . or removing an obstruction in the channel of a navigable river, it 
 must be shown that the obstruction was of such a nature as to pre- 
 vent him from passing up and down the river, If there were suffi- 
 cient space left for him to pass with reasonable safety, he cannot 
 justify the removal of the obstruction (*). The 4th statiite of 
 25 Ed. 3, c. 4, reciting that the common passage of boats and ships 
 in the " great rivers " of England is oftentimes annoyed by the set- 
 ting up of gorces, miUs, weirs, stanks, stakes, and kiddles, provides 
 for the destruction of all such as have been levied and set up in the 
 time of Edward I. and after. It directs writs to be sent to the 
 sheriffs, to survey, and inquire, and do execution thereof. The 
 
 {d) As to cattle lying in a highway,see (/) Batemcm v. BVuck, 18 Q. B. 876 ; 
 
 Lawrence y. Kimg, L. E., 3 Q. B. 345, 21 Law J., Q. B. 406. 
 
 decided under a. 25 of 27 & 28 Vict. (g) Ja/mea v. Baywwrd, ante, p. 174. 
 
 c. 101, and Qolding v. Stochimg, L. K., 4 (A) Roberts t. Rose, 33 L. J., Eich. 1, 
 
 Q. B. 516. Freestone t. Caswell, Ibid. ib. Zil ; S.O.(ia error), L. K., 1 Exch. 
 
 519. 82. 
 
 (c) Dimes v. Petlet/, 15 Q. B. 283. (t) Ante, p. 175. Bast. Co. Rail. Co. v. 
 
 Bowies V. Mann, 10 M. & W. 546. Mayor DorUmg, 5 C. B., N. S. 821 ; 28 Law J., 
 
 of Colchester r. Brook, 7 Q. B. 377. C. P. 202. 
 
SECT. 2.] OBSTRUCTIONS TO MSHING. 199 
 
 effect of this statute appears to be to legalize weirs which can "be 
 shown to have been erected prior to the time of Edward I., although, 
 from changes in the bed of the river, they may have the effect of 
 totally preventing the navigation of the stream (;)'. But this and 
 the subsequent statutes on the subject apply only to navigable 
 rivers {k). The 2 Hen. 6, c. 15, prohibits not only the use of nets 
 which are permanently fixed day and night, but also those which 
 are fixed for intervals of time only, if they obstruct the navigation 
 of the river and the passage of the fish (l). 
 
 Penalties have been imposed by statute upon all persons 
 having charge of vessels who shall throw any ballast, gravel, earth, 
 rubbish, or filth, into any navigable river, so as to tend to the injury 
 or obstruction thereof; and the person having charge of the vessel 
 wiU be responsible for the acts of the crew, and may be convicted 
 of the offence and fined, though he was not on board at the time it 
 was committed (m). 
 
 Olstructions to fishing. — Under the Salmon Fishery Acts (24 & 
 25 Vict. c. 109, and 28 & 29 Vict. c. 121), ante, p. 194, obstructions 
 to the free passage of salmon may be removed by order of the Com- 
 missioners (n), subject to an appeal to the Court of Queen's Bench (o). 
 It has been held under these statutes, that a user for forty-five 
 years, previous to the passing of the first of them, of putchers and 
 stop nets (which are " fixed engines " within the meaning of the 
 statutes (p), and therefore forbidden unless used by virtue of a grant, 
 charter, or immemorial usage), does not raise a conclusive presump- 
 tion of law that such putchers and nets have been used from time 
 immemorial (q) ; nor does the user of fixed engines for a very long 
 period raise such a presumption, where, owing to changes in the 
 bed of the river, the actual user has been in places different from 
 the site of the ancient iiser, although such user would be evidence 
 of a right to have such engines in reasonable places with reference 
 to the changing bed of the river (r). The power of the Commis- 
 sioners to order a fish gap to be made in existing weirs only 
 extends to cases where the weir extends more than half-way across 
 the stream (s). 
 
 Pulling down ruinous houses adjoining a puUic thoroughfaxe. — 
 The Metropolitan BuHding Act (18 & 19 Vict. c. 122, ss. 69— 81(if) ) 
 
 {]) WUliamsY. Wilcox, 8 Ad.&E. 329. (p) Gore t. English Fisheries Oommis- 
 
 See ante, pp. 73, 74. sioneirs, L. E., 6 Q. B. 561. 
 
 {k) RoUe T. Whyte, L. E., 3 Q. B. 286. (q) Holford v. George, swpra. As to 
 
 (I) Holford V. George, L. E., 3 Q. B. fishing without a hoence from the Board 
 
 g39 of Conservators, Lyne v. Leonard, L. E., 
 
 (m) 54 Geo. 3, c. 159, s. 11. See 3 Q. B. 156. And see Watts v. Lucas, 
 
 Michell T. Brovm, 28 Law J., M. C. 53. L. E., 6 Q. B. 226. 
 
 (ji) See Garnett t. Backhouse, L. E., 3 (r) Rawstome t. Backhouse, L. K., 8 
 
 Q. B. 30, 699. C. P. 67. 
 
 (o) RoUe V. Whyte, supra. W ^oHe v. Whyte, supra. 
 
 ^' " (t) See 32 & 33 Vict. o. 82. 
 
200 NUISANCES, [CHAP. IV. 
 
 authorises the pulling down, shoring up, &c., of ruinous buildings 
 under certain circumstances and contingencies, and provides (s. 97) 
 for payment of the expenses by the owner immediately entitled m 
 possession to such premises (u), or the occupier. 
 
 Statutory remedies and penalties in respect of nuisances from gas- 
 works.— S,j the statute 10 & 11 Vict. c. 15, for comprising in one 
 general Act sundry provisions to be contained in Acts of Parliament 
 thereafter passed, authorising the construction of gas-works for 
 supplying towns with gas, penalties are imposed (s. 11) upon per- 
 sons authorised by statute to construct gas-works, for delays in 
 making good broken ground, and re-instating roads broken up by 
 them, and removing rubbish ; and, in case of delay, the persons 
 having the control or management of the street, &c., may do what 
 is necessary to be done, and recover their expenses from the persons 
 authorised to construct the gas-works. A penalty of 200Z. is also 
 imposed (s. 21) upon such persons, and upon gas companies, for 
 corrupting streams, ponds, and drains with the refuse or filth of 
 gas-works. It is recoverable for each offence, with full costs of suit 
 in any of the superior courts (s. 22) by the person whose water has 
 been fouled by the gas-washings or refuse, provided the action is 
 brought during the continuance of the offence, or within six months 
 after it shall have ceased. In addition to this penalty of 200Z., a 
 sum of 201., to be recovered in like manner, is to be paid for each 
 day during which gas-washing or refuse is allowed to flow into and 
 foul the water, after the expiration of twenty-four hours from the 
 time when notice of the offence (s. 23) shall have been served by 
 the person whose water has been fouled ; and such penalty is to be 
 paid to the latter. And whenever any water within the limits of 
 the special Act is fouled by the gas, a sum of 20Z. is forfeited for 
 every such offence (s. 25) and 101. a-day for every day during 
 which the offence shall continue, after twenty-four hours' notice of 
 the offence. The object of the Legislature appears to have been to 
 make the company insurers, at all events, against any contamina- 
 tion of the water in the neighbourhood by the access to it of the 
 residuum of their gas-works («). By s. 29 of this statute, it is 
 enacted that nothing in this or the special Act contained shall pre- 
 vent the undertakers (the persons authorised to construct the gas- 
 works and make gas) from being liable to an indictment for nuisance, 
 or to any other legal proceeding to which they may be liable, in 
 consequence of making or supplying gas. The ordinary remedy by 
 action for damages, therefore, is maintainable for a nuisance arising 
 
 (a) See Overseers of Saffron, JBUl (ex mentioned statute. 
 parte), 2i Law J., M. C. 56, decided (v) HipMnsY. Sirm. dkc. OasIAgJit Co., 
 
 under the 7 & 8 Vict. c. 84, the greater 6 H, & N. 250 ; 30 Law J., Exch., 60 ; 29 
 
 part of -ffhichAct is repealed by the above- lb. 169. 
 
SECT. 2.] ACTIONS FOE. 201 
 
 from gas-works, notwithstanding tlie existence of the penal clauses 
 in this statute (w). 
 
 Penalties for fouling water in any well, fountain, or pump, are 
 imposed by 23 & 24 Vict. c. 77, s. 8. 
 
 Penalties for the non-consumption of smoke are imposed by divers 
 Acts of Parliament upon manufacturers and proprietors of steam- 
 boats (a;) and railway companies (y). By the Small Penalties Act, 
 1865 (28 & 29 Vict. c. 127), persons convicted in a summary 
 maiiner in any penalty not exceeding 5Z., may, in case of non- 
 payment, be imprisoned without any warrant of distress for the 
 periods — not exceeding two months — mentioned in the Act. 
 
 By-laws for the suppression of nuisances made by town councils 
 of boroughs under s. 90 of the Municipal Corporation Act, must, as 
 we have seen, be confined to the suppression of such acts as are 
 nuisances in themselves, and cannot be extended to an act which 
 may, or may not be a nuisance according to circumstances (z). 
 
 Actions for nuisances — Private injuries from a public nuisance. 
 — ^Whenever a special or particular damage is sustained by a 
 private" individual from a public nuisance, an action for damages 
 is maintainable (a). It has been held that the prevention of 
 customers from coming to a colliery by obstructing a public high- 
 way (h), per quod the benefit of the colliery was lost, and the coals 
 dug up depreciated in value, was such a special and particular damage 
 as would enable the owner of the colliery to maintain an action for 
 the private injury resulting from the public nuisance (c). But no 
 one can have an action for a nuisance or obstruction in a common 
 highway without assigning some particular damage to himself indi- 
 vidually, independent of the general inconvenience to himself as 
 one of the public (d), and the expense of removing the obstruction 
 is not such damage (e). 
 
 Where the plaintiff, in an action for damages from an obstruc- 
 tion in a public navigable tidal river, declared that he carried on 
 the business of an innkeeper in a house abutting upon the river, 
 and that the defendant placed beams and' spars in the water which 
 floated backwards and forwards with the tide, and obstructed the 
 access to the house at certain periods, whereby the plaintiff's 
 customers were prevented from coming to his house to take refresh- 
 ments, it was held that this was a specific particular damage resulting 
 
 iw) Willes, J., Broadbent v. /mp. Oas 145 ; 21 Law J., Ch. 159. 
 
 Light Co., 26 Law J., Ch. 280. (6) Which is a local action : Richardson 
 
 (x) 16 & 17 Vict. c. 128 ; 19 & 20 Vict. t. LocUin, 34 L. J., Q. B. 225. 
 
 c. 107. Wdker \. Mmns, 29 Law J., M. (c) Iveson y. Moore, 1 Ld. Eaym. 486 ; 
 
 (J 22 1 Salk. 15 ; Garth. 451. Cfreen v. Land. 
 
 ' (y)' Manchester, Sheff. <fcc. Sail. Co. T. Oen. Omnib. Oo.,ante, p. 174. 
 
 Wood, 29 Law J., M. C. 29. (d) Chichester v. Lethhridffe, Willes, 73. 
 
 (z) Everett v. Qrames, ante, p. 36. (e) Winierbottom. v. Lord Derby, Ij. E., 
 
 (a) SoUau v. Be Hdd, 2 Sim. N. S. 2 Exoh. 316. 
 
202 NUISANCES. [CHAP. IV. 
 
 to the plaintiff from the public nuisance, which entitled him to an 
 action for damages (/). And so where the plaintiff was navigating 
 a public navigable river with his barges laden with goods, and the 
 barges were impeded in their progress by a vessel which the 
 defendant had wrongfully moored across the stream, and the plain- 
 tiff, in consequence of the obstruction, was compelled to unload his 
 barges and carry his goods by land to their place of destination, it 
 was held that the plaintiff was entitled to recover from the defen- 
 dant all the expenses of the land carriage of the merchandise {g). 
 
 When a notice to abate or discontinue a nmsance should he given 
 hfifore commencing an action. — If an action is brought against the 
 originator of a nuisance, it is not necessary to demand the abate- 
 ment or discontinuance of the nuisance before commencing the 
 action. But if the action is brought against the mere continuer 
 of a pre-existing nuisance, a request to remove the nuisance must 
 be made before the action is commenced (h). A notice to abate or 
 remove a nuisance, delivered at the premises to which it relates, to 
 the occupier for the time being, will bind a subsequent occupier (*). 
 
 If a man commits a nuisance, and afterwards does away with 
 it, and with all the effects of it, before action brought, the cause 
 of action is extinguished (7c) ; but the abatement of the nuisance is 
 no defence in point of law against a complaint for an antecedent 
 injury. If damage has been sustained, the defendant is not the 
 less bound to compensate for that, because he has promptly and 
 properly repaired his fault (I). 
 
 Continuing nuisances. — The continuance of the nuisance is a 
 fresh injury, for which another action may be brought, and so, 
 toties guoties, until the obstruction is removed (m), or the wrongful 
 act done away with (%). Persons may be liable for the continuance 
 of a nuisance which they themselves originally created, although 
 they are not in possession of, or interested in, the soil on which the 
 nuisance exists at the time of action brought ; and although they 
 have no right to enter thereon for the purpose of abating the 
 nuisance (o). 
 
 Parties to be made plaintiffs. — The actual occupier of lands and 
 buildings incommoded and prejudiced by a nuisance is, in general, 
 the proper person to maintain an action for damages. If the 
 injured property is in the occupation of tenants to whom it has 
 been demised, the landlord or reversioner has no right of action, 
 
 (/) Hose T. aroves, 6 So. N. E. 653 ; {!) Bell t. Twentyman, 1 Q. B. 774. 
 
 5 M. & G. E. 613. (m) Shadmell v. Hutchinson, 4 C. & P. 
 
 (,g) Base v. Miles, 4 M. & S. 101. 333. 
 
 (A) Penraddock's case, 5 Co., 100 b. (n) Whitelwuse v. FeUowes, 10 0. B., 
 
 Wimmore v. Qreenlanh, Willes, 583. N. S. 765 ; 30 Law J., C. P. 305. 
 
 (i) Salmon T. Bmsley, E. & M. 189. (o) Thoimson v. CKbion, 7 M. & W, 
 
 (jc) Bro. Abr., pi. 2. 460. 
 
SECT. 2.] ACTIONS FOE — PAETIES. 203 
 
 unless the nuisance is of a permanent cliaracter, and necessarily 
 inflicts a lasting injury upon the inheritance. It has been held, 
 for example, that the reversioner is not entitled to maintain an 
 action for damages arising from the erection of a noisy workshop, 
 or a furnace and smoky chimney, in close contiguity to dwelling- 
 houses in the occupation of his tenants, although the noise and the 
 smoke render the houses uninhabitable, and the tenants give notice 
 to leave ; for the occupiers of the workshop and the furnace may 
 be compelled, by proceedings on the part of the tenants, to discon- 
 tinue the nuisance. " The action," observes Bramwell, B., " should 
 be brought by the tenant. It is said that the noises diminished 
 the value of the premises. I do not agree to that. If the tenant 
 is damaged by them to the value of 101. he will get 101. compensa- 
 tion." " In order to give a right of action to the reversioner," 
 further observes Pollock, C.B., " the injury must be of a permanent 
 nature. Here the hammering and noises may be stopped and the 
 nuisance removed at any time " (^p). If, however, the tenant actually 
 leaves the premises, and the reversioner comes into possession, 
 then an immediate injury accrues to him, in respect of which he 
 has an immediate right of action. 
 
 "Where, on the other hand, a building was erected, the roof and 
 ' eaves of which overhung the plaintiff's land, and discharged rain- 
 water thereon, and the plaintiff brought his action for an injury 
 to his reversion, the land being in the occupation of his tenants, 
 it was held that he was entitled to recover, as the very existence of 
 the building was a nuisance and permanent injury to the property, 
 and would, if allowed to. continue, impose a servitude thereon (q). 
 
 When several persons have a joint interest in property injured 
 by a ntusance, they ought all to be made plaintiffs in an action for 
 the injury. Tenants in common also, should join in an action for 
 a nuisance done to their land (r). 
 
 Parties to he made defendants. — ^We have seen that the occupier 
 of lands is in general responsible for the continuance of a nuisance 
 upon them;' and so is the landlord, if the nuisance existed at the 
 time he demised them, or re-let them or continued the tenancy 
 after he had the power of determining it (s). Every person who 
 does, or directs the doing of, an act which cannot be done at all 
 without constituting and creating a nuisance, is personally respon- 
 sible, whether he was acting for himself, or for or on behalf, or 
 for the benefit, of another, and whether he is a principal and 
 
 (p) Mumford y. Oxfd., Wore, ^ Wdlm. (r) Bao. Abr., Joint Tenants, &c., K. ; 
 
 Sml. Go., 1 H. & N. 35. Simpson T. anU, p. 70 ; post, ch. 20. 
 
 Swuage, 1 C. B., N. S. 347; 26 Law J., (s) AnU, pp. 162, 166. Bishop r. 
 
 C. P. 50. Trustees of Bedford Ohmty, 1 Ell. & Ell. 
 
 (g) TucTcer v. Newman, 11 Ad. & E. 697 ; 28 Law J., Q. B. 215. Gandyv. 
 
 40, Jubber, ante, pp. 147, 165. 
 
204 NUISANCES. [CHAP. IV. 
 
 employer, or a mere servant carrying into effect the orders of Ms 
 master (^). But a steward, manager, or agent, who merely hires 
 labourers for his master, and takes no part in the immediate 
 creation of the nuisance, is not answerable for the nuisance (u). 
 If the landlord of a house, under a contract with his tenant to 
 whom he has demised the house, employs worlanen to repair the 
 house, the landlord is responsible for a nuisance in the house 
 occasioned by the negligence of his own workmen, although the 
 repairs are done at the instance and for the benefit of the tenant, 
 and are, when executed, to be paid for by him («). 
 
 When a defendant is sought to be made responsible for a 
 nuisance, not on the ground of his being the owner or the occupier 
 of the land or premises on which the nuisance existS) but because 
 he has ordered or directed the doing of an act in a public thorough- 
 fare, or a navigable river, or on the land of the plaintiff himself, 
 which has created a nuisance, it must be shown that the relation- 
 ship of master and servant exists between the defendant and the 
 workmen who have personally done the act complained of, or that 
 the workmen were acting under his immediate control and direc- 
 tions. If the execution of repairs to a dwelling-house, or the 
 construction of a drain, is entrusted to a builder or contractor, who 
 exercises an independent employment, and selects his own servants 
 and workmen, and has the immediate control and superintendence 
 of the work, the owner of the house, who employs the contractor, 
 is not responsible for the creation of nuisances in the public 
 thoroughfare, by the negligence of the contractor's servants, if he 
 was ignorant of their unlawful proceedings, and had no knowledge 
 of the probable consequences of their acts (y). 
 
 If any excavations or constructions of any kind are authorised 
 to be made over or across a public thoroughfare, by private indi- 
 viduals or a public company, or by commissioners, and the works 
 are lawful in themselves, and can be done without jnjury to 
 individuals, and without creating any nuisance, and the persons 
 directing the works to be executed employ a contractor to do the 
 work, who selects the workmen, and has the entire conduct and 
 management of the work, the persons so employing the contractor, 
 and authorising the execution of the works, are not themselves 
 responsible for nuisances or injuries arising from the incompetence 
 of the contractor, or for the negligent execution of the works by 
 him, his servants, or agents, or for damage from things done by 
 the contractor or his workmen, which were never authorised or 
 ordered to be done by the company or commissioners (z). 
 
 {t) Wilson y. Peto, 6 Moore, 49. Wilte {x) Leslie r. Pounds, 4 Taunt. 648. 
 
 V. ffague, 2 D. & K. 33. (y) Peachey t. Howlcmd, 13 C. B. 185. 
 
 (u) Stone T. CwrtwrigU, 6 T. K. 412. (z) Qrwy v. PvUen, 32 Law J., Q. B. 
 
SECT. 2.] ACTIONS FOK — PLEADINGS. 205 
 
 Where commissioners, appointed under an Act of Parliament 
 for tlie improvement- of the navigation of a canal, agreed with a 
 contractor for the performance of certain works for draining and 
 carrying off the surplus waters of the canal, and the contractor, in 
 the exercise of the powers conferred on the commissioners by the 
 Legislature, constructed a drain through the land of the plaintiff 
 for the purpose of carrying off the waste water, and the plaintiff's 
 land was flooded in consequence of the defective and negligent 
 construction of the drain, it was held that the contractor, and not 
 the ■commissioners, was responsible for the nuisance, as the con- 
 tractor was not the servant of the company, but occupied an 
 independent position, having the selection and entire control of the 
 workmen, and the sole management of the works (a). 
 
 In this case the defective drain, causing the overflow of the 
 water and creating the nuisance, was on the plaintiff's own land. 
 Had the nuisance arisen upon the land of the defendants, they 
 would have been responsible for it [ante, pp. 162, 163). Where 
 the defendants have employed a contractor to do an act which is 
 unlawful in itself, or which cannot be done without creating a 
 nuisance, then the act done by the contractor is in substance their 
 act, and they as well as he are responsible for the consequences 
 which naturally result from it (&). 
 
 The action may be brought against all the persons doing, or 
 ordering the doing of, the wrongful act, as well as against the 
 occupier of the land on which the nuisance exists ; but, instead of 
 bringing his action against all jointly, the plaintiff may, as we have 
 seen, sue one or more of them at his electio];i (c). 
 
 Declarations for nuisances. — If the plaintiff complains of smoke or 
 noisome smells and exhalations, or noises emanating from the defen- 
 dant's land, the declaration should set forth the plaintiff's posses- 
 sion of certain tenements adjoining other tenements in the occupa- 
 tion of the defendant, and the creation and continuance, by the 
 defendant of the nuisance on the land and tenements in his occu- 
 pation, setting forth the nature of the nuisance, and alleging that 
 the plaintiff was thereby disturbed and annoyed in the occupation 
 and enjoyment of his property, and the property itself was deterio- 
 rated in value. If the plaintiff has been impeded in the exercise 
 of his ttade or profession, or any special damage has been sustained, 
 
 169 KniqU v. Fox, 5 Exch. 725 ; 20 Law J., Q. B. 99. 
 
 Law J Exoh. 9. Overton t. Freemwn, (V) Mis v. -SfeJ. Gas Co., 2 Ell. & Bl. 
 
 11 CB 867- 21 Law J., C. P. 62. 757; 23 Law J., Q. B. 42. JBoU v. Sit- 
 
 Peacheu v. Bowland, 13 C. B. 182 ; 22 tmghoume, &c. BaU. Co., 6 H. & K 500. 
 
 Law J P 81 qaaUfying Bush v. Blake v. Thirst, 32 Law J., Exoh. 188. 
 
 summon, 1 B.' & P. 404. And see post, Bromihw v. Met ^d. of Works 33 L. J., 
 
 ch. 8, s. 2, OoNTBACTOB AND SuB-coN- 0. P. 233. And see post, oh. 8, s. 2 ; oh. 
 
 TRACTOB £ti.t 
 
 {a) AUen v. Hayward, 7 Q. B. 960 ; 15 (c) Ante, pp. 70, 147 ; post, ch. 20. 
 
206 NUISANCES. [CHAP. IV. 
 
 it should be stated as a consequence of the wrong done, and the 
 declaration should conclude with a claim of a specific sum for 
 damages (d). 
 
 If the injury of which the plaintiff complains arises from the 
 fall of chimneys from the defendant's premises upon the plaintiff's 
 house, or from filth and rubbish being allowed to run down from 
 the defendant's premises upon the plaintiff's land, the plaintiff 
 may declare for a trespass upon his land, alleging that the defen- 
 dant cast thereon large quantities of stones, bricks, and rubbish, 
 night-soil, iilth,' or manure, as the case may be (e), and flooded the 
 plaintiff's premises, and disturbed him in the occupation and 
 enjoyment of his dwelling-house, or he may declare for the conse- 
 quential injury arising from acts of commission or omission by the 
 defendant on his own land. We have seen that the duty of cleans- 
 ing and repairing drains used by the occupier of a house devolves 
 upon such occupier, and not upon the landlord. A declaration, 
 therefore, which merely alleges that the defendant is the owner and 
 proprietor of the drains or the houses, and seeks to cast upon him, 
 as such owner, a legal obligation to make good the damage ensuing 
 to his neighbour from their foul or dangerous condition, is bad on 
 general demurrer, unless it shows some special ground for making 
 the defendant liable as owner (/). 
 
 Where the plaintiff declared that he was possessed of a cellar 
 contiguous to the defendant's privy, and parted by a wall, part of 
 the defendant's house, which the defendant, " debuit, et solebat 
 reparare,'' and that, for want of repair, the filth of the privy ran 
 into the cellar, it was moved, in arrest of judgment, that, this 
 being a charge. laid upon the occupier of the adjoining land, the 
 plaintiff should have showed a title by prescription to have the 
 wall kept in repair for his benefit, " sed non allocatur;" for it is a 
 charge laid on the defendant of common right, which by law he is 
 subject to. As one is bound to keep his cattle from trespassing on 
 his neighbour's ground, so he must a heap of dung, if he erects it. 
 " Sic utere tuo ut alienum non laedas " (g). 
 
 A declaration setting forth the plaintiff's possession of a mes- 
 suage and land, and the defendant's possession of an adjoining brew- 
 house, and that the defendant caused water to be conveyed from 
 a certain spring through leaden pipes placed near the foundations 
 of the plaintiff's house, and took so little care of the pipes, or so 
 negligently used and managed them, that the water escaped from 
 the pipes, and flooded the plaintiff's house, and injured the founda- 
 
 {d) Ante, p. 74 ; post, oh. 21. (/) HusseU v. Shenlon, 3 Q. B. 457. 
 
 (e) Gregory t. Piper, 9 B. & 0. 591. Ohauntler t. Robinson., 4 Exoh. 169. 
 
 Tenant v. Golding, 1 Salk. 21, Pickering (g) Tenant v. QoUing, 1 Salk. 21. 
 
 T. Budd, 1 Stark. 58, HodgUmon v, Ennor, 32 Law J„ Q. B, 
 
SECT. 2.] ACTIONS FOR DAMAGES — PLEADINGS. 207 
 
 tions thereof, and caused the walls of the house to crack and give 
 way, &c., discloses a good cause of action (h). 
 
 When the plaintiff complains of the pollution of a stream, he 
 should show that he was in the actual enjoyment of pure water, or 
 that, by reason of his possession of a messuage or land, he had the 
 right to the flow of a stream of water through his premises in its, 
 natural purity (ante, pp. 71, 147, 148), and that the defendant 
 polluted it. If the injury has resulted from negligence on the part 
 of the defendant, in not having properly fenced or guarded a hole 
 or cellar or dangerous excavation on his premises, the declaration 
 should show that the defendant was the occupier of the cellar and 
 premises ; that the cellar closely adjoined a public footway, and 
 opened thereon,, so as to be dangerous to persons passing along it, 
 or that the hole or excavation was within twenty-five yards of a 
 public highway ; and that the defendant wrongfully suffered the 
 hole to remain unfenced and unguarded; and that the plaintiff, 
 whilst he was passing along the highway, or along the open unen- 
 closed land adjoining the highway, and within twenty-five yards 
 thereof, fell into' the hole and was injured, and prevented from 
 attending to his business, and was obliged to expend money in 
 surgical attendance and advice (i). 
 
 It is not necessary to state in the declaration that it was the 
 duty of the defendant to do the act which he is alleged to have 
 neglected to do, but the facts creating the obligation to perform the 
 duty should be set forth. The allegation of duty is useless where 
 the declaration is insufficient, and superfluous where it is suffi- 
 cient (k). 
 
 A declaration alleging that the defendant was the proprietor 
 of a building called, &c., used by the defendant for purposes of 
 gain, that the plaintiff entered and paid for his admission, and 
 that the defendant, not regarding his duty in that behalf, did not 
 carefully and skilfuUy, and with proper strength and materials, 
 construct and maintain the building and the staircase thereof, so as 
 to be, for the purposes aforesaid, safely and securely used, and that, 
 by reason thereof, whilst the plaintiff was in the building, the 
 staircase fell, and the plaintiff was violently thrown down and 
 injured, discloses a good cause of action (J). 
 
 If the grantor of a private way is bound, by express stipulation 
 or prescription, to repair it, it is sufiicient, in an action against him 
 for neglecting to do so, to allege generally in the declaration that 
 
 W Boare v. mcUnson, 2 Ld. Eaym. ^o^j-oU. Stanley, 1 H f ^^^ 247 ; 25 
 
 1569. 
 
 Law J., Excli. 247. Oibhs v. Tnist. Lit. 
 
 'H)£ishopy. Trustees of Bedford Charity, i)ocfa, 3 H & N. 164. _ 
 
 f 1 fifi (0 Bratwr v. Polytechmc Institution, 
 
 tk^MeLlfe V HetUrmgtm, 11 Bxch. Q. B. 1859. ■ See Oollis v. Mden, L. R., 
 
 27? similr^mddol 16Q. B. 331, 3 0, P, 495, ante, p. 188. 
 
208 NUISANCES. [chap. IV. 
 
 he, by reason of his possession of the close in which the way is, 
 ought to repair it, and the special matter of the obligation may be 
 given in evidence (m). 
 
 When the plaintiff complains of an injury to his reversionary 
 estate, the declaration should allege that, at the time of the com- 
 mitting the grievance of which he complains, certain messuages, 
 tenements, and land, with the appurtenances, were in the occupa- 
 tion of certain persons, as tenants thereof to the plaintiff, the respec- 
 tive reversions in the said messuages, &c., being in the plaintiff, and 
 that the plaintiff and his tenants, by reason of their interest in, and 
 possession of, the said messuages or tenements, and land, of right 
 ought to enjoy the use of the water of a certain well and pump, and 
 that the defendant erected a cesspool so near the well and pump 
 that the water therein was contaminated and rendered useless by 
 the oozing out of the soil and filth from the cesspool into the 
 well (n). 
 
 Declarations for injwies from the keeping of ferocious animals. 
 — In actions for injuries from keeping ferocious animals, the plain- 
 tiff must set forth in his declaration the mischievous propensity of 
 the animal, the keeping of it by the defendant, with knowledge of 
 such propensity, and the injury to the plaintiff ; but the plainljUf 
 need not tie himself down to any allegation of the particular habits 
 of the animal, and of the defendant's knowledge of those habits. 
 He may aUeige, generally, that the animal was of a ferocious nature, 
 and unsafe to be left at large, and that the defendant knew it, and 
 that he nevertheless permitted the animal to be at large (o). 
 It is usual, however, to allege that the animal was of a fero- 
 cious disposition, and accustomed to attack or bite mankind, or 
 sheep and animals, the subject of private property {p). It is not 
 necessary to allege or prove any negligence or want of care in the 
 keeping of the animal by the defendant {q). The injurious conse- - 
 quences to the plaintiff should be stated; and if any special 
 damage has been sustained, it should be set forth on the face 
 of the declaration. 
 
 Plea of not guilty. — In an action for a nuisance to the occupa- 
 tion of a house by cariying on an offensive trade, the plea of not 
 guilty wiLL operate as a denial only that the defendant carried on 
 the alleged trade in such a way as to be a nuisance to the occupa- 
 tion of the house, and will not operate as a denial of the plaintiff's 
 occupation of the house (r). In an action for forming a cesspool 
 near a well, and thereby contaminating the water of the well, it was 
 
 (m) Eider t. SmUh, 3 T. E. 766. (p) JenUns v. Turner, 2 Salk. 661. 
 
 (n) Metrop. Assoc, y. Fetch, 5 C. B., {q) May v. Burdett, 9 Q. B. Ill ; 16 
 
 N. 5. 504 ; 27 Law J., C. P. 330. Law J., Q. B. 64 
 
 (o) SaHley v. ffamman, 1 B. & AW- W Keg. Gen. 16 Vict, I Ell. & Bl., 
 
 624. APP- Ixxxi. 
 
SECT. 2.] AL'.TiOiNS FOR DAMACiES — PLEADINGS. 209 
 
 held that the plea of not guilty put in issue both the fact of the 
 erection of the cesspool, and that the water was thereby contami- 
 nated (s). In actions for injuries from acts of omission, the fact 
 that the injury was occasioned by negligence and misconduct on 
 the part of the plaintiff, as well as by neglect of duty on the part 
 of the defendant, is also admissible under the plea of not guilty (;;). 
 In actions for injuries resulting from the keeping of ferocious 
 animals, with knowledge of their dangerous propensity, the plea of 
 not guilty puts in issue both the fact of the ferocity of the animal 
 and the defendant's knowledge of it ; those two matters forming 
 the substance of the wrongful act (u). 
 
 Pleas juMifijing the fouling of the loater of a stream under a pre- 
 scriptive right to discharge into it the refuse of dye-houses and manu- 
 factories, and the washings of mines. — When the plaintiff complains 
 of th? fouling and sending rubbish down a natural stream of water 
 running through the plaintiff's land, it is a good defence to plead 
 that the defendant, at the time of the committing of the alleged 
 - injury, was the occupier of land, and of a tin-mine situate thereon, 
 and abutting upon the stream, and that the defendant and aU other 
 occupiers for the time being of the land and tin-mine, for the period of 
 twenty years next before the commencement of the action, enjoyed as 
 of right, and without interruption {x), the privilege of using the water 
 of the stream for the purpose of working the tin-mine, and mining and , 
 washing tin-ore, and of fouling the water of the stream with sand- 
 stones and rubble and the washings of the tin-mine ; and that the 
 defendant, being the occupier of the land and tin-mine, did, in 
 working the mine, and mining and washing the tin-ore, necessarily 
 discharge into the stream sandstones and rubble, and did necessarily 
 foul the water of the stream, and obstruct the channel and bed 
 thereof (?/). A plea of this sort sets up a prescriptive right to the 
 use of the water of the stream for the necessary working of the 
 mine ; but it is doubtful whether a plea which merely alleges 
 a user as of right to throw cinders, scoriae, coal dust, and the refuse 
 of the ash-pit of a steam-engine into a running stream, so as to 
 obstruct the chaimel and bed thereof, is a good plea, as it does 
 not appear to set up a claim which might lawfully be made at the 
 common law by custom, prescription, or grant, to an easement or 
 watercourse, or use of water within the meaning of the Prescription 
 Act (2). 
 
 Fleas justifying the obstruction of a watercourse, on the ground 
 that water was wrongfully discharged therefrom on the defendant's 
 
 is) Norton v. Scholefield, 9 M. & W. (y\ Carlyon y. Lovenng, 1 H. & N. 
 
 66S. 789 ; 26 Law J., Exch. 251. 
 
 (t) Eolden v. Liv. Qas Co., 3 C. B. 1. («) MurgcOroyd v. Robinson, .2 Ell. & 
 
 («) Ccurd V. Case, 5 C. B. 622. Bl. 391 ; 26 Law J., Q. B. 233. 
 (x) Ante, pp. 119—134. 
 
210 NUISANCES. [CHAP. IV. 
 
 Jand, should allege that the defendant in abating the nuisance did 
 no unnecessary damage to the plaintiff (a). 
 
 Pleas justifying the poisoning of the atmosphere with noxious 
 smells and exhalations under a prescriptive right to carry on an 
 offensive trade, should set forth that the defendant and his prede- 
 cessors, occupiers for the time being of the house and premises and 
 grbund in the declaration mentioned, exercised and enjoyed for the 
 fall period of twenty years next before the commencement of the 
 action, as of right and without interruption, the trade of, &c., in 
 and upon the said premises, and thereby, duritig all that time, 
 divers noisome smells imayoidably arose from the said premises, 
 and extended themselvep to the plaintilf's land, and created smells 
 thereon, and that the grievance complained of by the plaintiff was 
 a user by the defendant of his premises for the purposes of such 
 trade Q)). 
 
 Evidence at the trial — Proof on the part of the plaintiff should 
 be directed to the establishment of all the material allegations in 
 the declaration in the order in which they are set forth, i.e. the 
 plaintiff's possession of a certain tenement adjoining another tene- 
 ment in the occupation of the defendant, and the existence of a 
 nuisance on the last-named tenement. When the plaintiff sues 
 for a temporary nuisance (awfo,''pp. 162, 203), he must show that 
 he is the actual occupier of the property injured by the nuisance. 
 When he sues as the landlord or reversioner of the property injured, 
 he must prove that the nuisance was of a permanent pharacter, 
 damaging the marketable value of the property (ante, pp. 70, 75, 
 146). The nature and character of the nuisance will have to be 
 proved (ante, pp. 162 — 193) ; and it must be shown either that it 
 disturbed and annoyed the plaintiff in the occupation and enjoy- 
 ment of the property, or that the property was deteriorated in value 
 (ante, p. 70). 
 
 In order to make the defendant responsible for the nuisance, it 
 must be proved, either that he was the actual occupier of the land 
 or tenement on which the nuisance existed (c), or that he had 
 authorised or directed the doing of the thing which created the 
 nuisance. Proof of the exercise of acts of ownership over the 
 tenement on which the nuisance exists, such as paying the wages 
 of workmen employed there (d), locking the doors, or chaining the 
 gates at night, or giving orders that it should be done, posting bills 
 in the windows, or paying a woman to open the shutters and air 
 the house, will be sufficient primd facie evidence of actual or 
 constructive occupation; and any declarations or admissions by 
 
 (a) Soherts v. Sose, write, p. 198. Suhtmik, wnte, p. 117. 
 
 (5) Flight v. Thowias, 10 Ad. & E. 590 j (c) Sobdins t. Jones, ante, p. 178. 
 
 1 Smith's L. C. 261, 6th ed. Cooper t. (d) Jarvis v. iJeon, 11 Moore, 359, 
 
SECT. 2.] ACTIONS FOR — EVIDENCE. 211 
 
 the defendant tending to show that the tenement on which the 
 nuisance exists belonged to him, or was under his control, wUl, of 
 course, he evidence against him (e). Proof that the defendant has 
 received rent for the use of a wall, building, or pavement, and has 
 previously repaired it when it required repairs, has been held 
 sufficient to render the defendant responsible for a nuisance existing 
 thereon (/). 
 
 If the plaintiff complains of a nuisance arising from the non- 
 repair of drains and sewers, it must be shown that the defendant 
 had the use and occupation of the drain and sewer. Proof that the 
 defendant occupies the land through which the sewer runs does 
 not cast upon the defendant the duty of cleaning out the sewer or 
 repairing it, or preventing it from becoming a nuisance. It does 
 not follow, from his being the occupier of the land through which 
 the sewer runs, that he has the occupation and use of the sewer. 
 He may never have used it or occupied it, and may have no power 
 to touch it, or interfere with it in any way {g). The persons who 
 have a right to use the sewer, and who exercise that right, are in 
 general bound to cleanse the sewer, and repair it, and prevent it 
 from becoming a nuisance, unless the duty of so doing is imposed 
 on others by express legislative enactment. 
 
 If the defendant is not in the actual occupation of the premises 
 on which the nuisance exists, but it is sought to make him liable, 
 on the ground that he - demised the premises with the nuisance 
 existing upon them, it must be proved that the nuisance was in 
 existence at the time of the demise {ante, pp. 165, 166). If it is 
 sought to make him liable for injuries arising from dangerous 
 excavations, pits, or holes, on premises demised by him, or from 
 the fall of ruinous buildings in the occupation of his tenant, it 
 must be shown that the holes and excavations existed, and that 
 the buildings were ruinous and dangerous to the public at the time 
 he let them. If the action is brought against the occupier of 
 ruinous buildings, which have fallen down and injured the plaintiff, 
 a prima facie case will be established a,gainst the defendant, merely 
 by proving that he was in the actual or constructive occupation of 
 the property at the time of the injury ; and it will be for the 
 defendant to show, if he can, that he was a mere tenant-at-will, 
 and had no knowledge of its ruinous or dangerous condition; or 
 that before the buildings feU he ceased to occupy them, and gave 
 up possession to the landlord {ante, pp. 177, 178). 
 
 If the defendant is charged with acts of omission, non-feazance, 
 and neglect of duty, the facts creating the duty must be proved, 
 
 (e) Syiray v. White, 1 M. & W. 440. Q. B. 215. Payne t. Rogm, 2 H. Bl. 
 
 (/) Bishop y. Trustees of Bedford 349. 
 
 1 Ell. & Ell. 697 ; 28 Law J., (g) Post, ch. 6. 
 
 1 2 
 
212 NUISANCES. [CHAP. IV. 
 
 and the defendant's neglect established. If the injury arises from 
 the non-repair of party-walls or fences, it must be shown that the 
 defendant was bound by contract, prescription, or statute, to repair 
 or fence (ante, pp. 124, 180). If it arises from the negligent use and 
 management of buUdings, stations, or railways (aM.fe,pp. 177 — 185), 
 or canals or docks {ante, pp. 185 — 186), it must be shown that the 
 defendants were in the occupation of the property upon which the 
 dangerous nuisance existed, and had dominion and control over it. 
 If the injury arose from the dangerous state of premises on which 
 the plaintiff was employed as a workman, it must be shown that 
 the danger was latent and unknown to the workman, but well 
 known to the employer (awfo, pp. 186, 187). If it arose from 
 defective hoisting-tackle in mines, or insecure ladders, it must be 
 shown that the defendant ordered or selected the tackle," or knew 
 that it was insecure and unfit to be used, and that the plaintiff had 
 no knowledge of the danger he incurred by using it {ante, pp. 187, 
 188). If the plaintiff complains of injuries from the dangerous 
 state of premises in the occupation of the defendant, to which he 
 had come on the invitation of the defendant as a guest, he must show 
 that the danger was of an unusxial and unexpected character, the 
 existence of which was whoUy unknown to the plaintiff, but was 
 well known to the defendant {ante, pp. 188 — 189). 
 
 In actions for injuries for keeping ferocious animals, the plaintiff 
 must prove that he has been bitten or hurt, or has sustained some 
 actual damage from the ferocity of the animal, and that the defen- 
 dant kept or harboured the animal with knowledge of its savage 
 disposition ; but it is not necessary to allege or prove any negli- 
 gence or want of care in" the keeping of it {ante, pp. 190 — 191). If 
 the plaintiff has not, by his declaration, tied himself down to proof 
 of some particular mischievous propensity on the part of the animal, 
 it is sufficient for him to prove, generally, that the animal was of a 
 ferocious nature, and given to bite, and that the defendant knew 
 it (A) ; and if this be proved, it is not necessary to prove that any- 
 body before the plaintiff had in fact been bitten ( i). Where a dog 
 was proved to be of a savage disposition, and the defendant had 
 warned a person to beware of the dog, lest he should be bitten, it 
 was held that this was evidence for a jury of the defendant's 
 knowledge of the nature of the beast {j). And where the wife of 
 the. defendant, who occasionally assisted him in his business as a 
 milkman, had a complaint made to her of the savage nature of a 
 dog kept on the premises, for the purpose of communicating it to 
 her husband, this was held evidence of the husband's knowledge (k). 
 
 (h) HwrtUy v. HaUiwett, 2 Stark. 212. Ih) Gladmm v. Johnson, 36 L. J., 
 
 (i) Worth T. GiUimg, L. E., 2 0. P. 1. C. P. 153. 
 ij) Judge V. Cox, 1 Starfi. 285. 
 
SECT. 2.] ACTIONS FOE — EVIDENCE — DAMAGES. 213 
 
 If it can be shown that a dog has been guilty, to the knowledge of 
 the owner, of a single act of ferocity, that is sufficient to impose 
 upon the owner the duty of watching and securing the animal, and 
 will render the master responsible in damages if the dog is guilty 
 of another ferocious act (I). 
 
 Proof of an offer on the part of the defendant to make com- 
 pensation to the plaintiff is some, but very slight, evidence against 
 the defendant, as the offer may have been made purely from 
 charitable and praiseworthy motives, and not as admitting any 
 consciousness of wrong or, of legal liability in the matter (m) ; and 
 it has been held that such an offer is no evidence at all of the 
 scienter (n). 
 
 Evidence for the defence. — ^Where the plaintiff sues for a nui- 
 sance, arising from the exercise by the defendant of a noxious 
 trade in the vicinity of the plaintiff's dwelling, and the defendant 
 has put a plea of justification on the record, he must prove the 
 material averment of his plea, and show how his right to create the 
 nuisance arises. Under the plea of not guilty, the defendant may, 
 as we have seen, show that the injury was occasioned by the 
 plaintiffs negligence and misconduct, as well as by the default of 
 the defendant, and so defeat the plaintiff's claim for damages (o). 
 If it be shown that the defendant was a wilful trespasser upon 
 the land of the plaintiff, and must have known that he had 
 no right to be there at the time he sustained the injury of 
 which he complains, his claim for damages will, in general, be 
 defeated. 
 
 DawMges recoverable. — For every nuisance, the continuance of 
 which would inflict permanent injury upon premises demised to 
 a tenant, and diminish their value in the market, damages are 
 recoverable by the reversioner in respect of the injury to the 
 inheritance, as well as by the tenant, in respect of the immediate 
 residential injury. Thus, where the subject of complaint was, that 
 the defendant had fixed a spout to the eaves of his house, which 
 poured rain-water into the plaintiff's yard and made it damp, it 
 was held that this was an injury of a permanent nature, which 
 entitled the plaintiff to damages, although the yard was in the 
 occupation of a tenant {p). But where an action is brought by a 
 reversioner to recover damages in respect of an injury to his rever- 
 sionary estate in certain lands and premises, by reason of a nuisance 
 committed by the defendant, the diminution in the saleable value 
 of the premises is not the true criterion of damage, because every 
 
 (Z) i?Zem»M^v. On-, 2Macq. So. A.25. Lord BUenborough, C. J. See post, 
 
 {n) ThomasY.Morgm, 2C.M. &B,. ch 22 , , „ , 
 
 gfl2 (o) -Ante, pp. 19, 209 ; post, ch. 8, s. 1. 
 
 {n) Beck v. Dyson, i Campb. 198, per (p) Tucker Y.Newman, 11 Ad, &E, 41, 
 
214 NUISANCES. [CHAP. IV. 
 
 day that the defendant persists in continuing the nuisance, he 
 renders himself liahle to another action. Nominal damages are 
 generally given in the first action ; and then, if the defendant 
 persists in continuing the nuisance, and another action is brought, 
 and the verdict is obtained against him for continuing the nuisance, 
 the jury generally give exemplary damages, to compel an abate- 
 ment of the nuisance (q). If, however, the jury choose to give 
 substantial damages in the first instance, there is nothing to prevent 
 them from so doing (r). 
 
 Wherever the nuisance was, in its commencement, an injury 
 to the reversion, on any ground whatever, the continuance of the 
 nuisance must be so likewise, and an action is maintainable by the 
 reversioner, foties quoties, until the nuisance is abated (s). In aU 
 cases of contiauing nuisances, the jury cannot lawfully give 
 damages in respect of any injury subsequent to the day of the 
 commencement of the action; for every day that the nuisance 
 continues there is a fresh cause of action, in respect of which 
 further damages are recoverable (t). 
 
 If the plaintiff's house has been thrown down by reason of 
 the negligence of the defendant or his servants in puUing down an 
 adjoining house, the jury ought not to give as much in damages 
 as would be sufficient to build a new house, but should make a 
 reasonable and proper allowance for the benefit which the plaintiff 
 would receive by having a new house instead of an old one. Lord 
 Kenyon likened a case of this sort to the case of marine insurances, 
 where an allowance of one-third new for old was always made (u). 
 
 In actions for injuries from keeping ferocious animals (ante, 
 p. 190), the plaintiff is entitled to recover substantial damages in 
 respect of any bodily anguish he has endured, together -with the 
 expenses of surgical attendance, and aH such expenses as have been 
 reasonably and necessarily incurred by him ia consequence of the 
 injury, and have been claimed in the plaintiff's declaration. If, in 
 consequence of a bite from a ferocious dog, knowingly kept and 
 harboured by the defendant, the plaintiff has been obliged, under 
 medical advice, to undergo a surgical operation to guard against 
 hydrophobia, this wiU be a ground for increasing the damages (x). 
 
 {q) BaUishUlv. Meed, 18 C.B. 714:; 25 (i) See Goldsmid v. Tunbridge Wells 
 
 Law J., C. P. 290. Commis^pnera, post, pp. 215, 216. 
 
 (r) Cresswell, J., 18 C. B. 712. («\ LuUn t. GodsaU, 2 Peake, 15. 
 
 (s) Shad/w^ T. SntcJdnson, 2 B. & Ad. (x) Post, ch. 22. 
 97. 
 
SECT. 3.^ INJUNCTION. 215 
 
 SECTION III. 
 
 PEEVENTION OF NtJISANCES BY INJUNCTION AND INDICTMENT. 
 
 Injunction. — Both the courts of common law {y) and Chancery 
 wiU, by injunction, prevent the continuance of a nuisance on one 
 man's land to the injury or annoyance of another («). An injunc- 
 tion wUl be granted, in certain cases, to prevent the fouling of a 
 stream by pouring into it the contents of sewers, and the refuse of 
 dye-houses and manufactories {a) ; or to prevent the fouling of a 
 canal by taking water from a stream polluted by sewage, although 
 the pollution of the stream was not caused by the proprietors of the 
 canal (6) ; also to prevent the burning of bricks (c), the erection of 
 eoke-ovens (d), and densely-smoking chimneys (e), and the carrying 
 on of gas-making or any noisome trade, so as seriously and materially 
 to interfere with the ordinary- comfort and enjoyment of a neigh- 
 bouring dwelling-house, or to iajure the trees or vegetation of the 
 neighbouring fields (/). When the nuisance is of a permanent 
 character, such as a nuisance caused by the erection of a building, 
 which obstructs the passage of light and air to ancient windows, 
 the courts will interfere to protect the proprietary interests of the 
 reversioner, as well as to protect the enjoyment by the tenant or 
 occupier {g). But where the injury is of a temporary nature, not 
 likely to last long, nor to deteriorate the marketable value of the 
 property, the reversioner has no claim to the equitable interference 
 of the court (h) ; nor will the court interfere in any case, unless 
 some serious inconvenience has been sustained, or some actual 
 damage done or threatened (i) ; nor where the injury, in itself trifling, 
 wUl shortly be abated by the operation of an Act of Parliament {j). 
 If the injury be accidental or occasional only, and not likely to 
 become more frequent, or to be exceptional in amount, such as 
 arises from the storage of inflammable materials, the person com- 
 plaining wiU be left to his action at lawf^). It is no answer 
 
 (^) As to injunction at common law, 7 H. L. C. 600. Saines v. Tayhr, 10 
 
 see«os<, ch. 23. Beav. 75. Crvmp t. Zjpm^cr*, Ji. B.., 3 
 
 (z) OUacre v. Hunt, 19 Beav. 489. Bq. Ca. 409. Att.-Gen. v. Oeaver, 18 
 
 Inchbald v. SMnton, and IncUaM T. Bar- Ves. 211, ante, p. 163. 
 rinqtun, L. E.", 4 Ch. App. 388. (?) Wilson v. Townend, 30 Law J., Ch. 
 
 (a) Wood T. Swtdiffe, 2 Sim. N. S. 163. 26. Herz v. Un. Banh, 2 Gifi. 686. 
 Att.-Oen. V. Borough of Birmingham, 4 (A) Cleeve v. Mahany, 9 W. K. 882. 
 K & J 528. (*) WoMdsworth Boa/rd, So., v. Land. <b 
 
 (6) Att.-Gen. v. Bradford Canal, L. E., S. W. R., ante, p. 76. As to prospective 
 
 2 Eq. Ca. 71. And see Att.-Oen. v. damage, see Qoldsmidx. TunhridgeWdls 
 
 Richmond, lUd. 306. ' Oommistioners, L. E., 1 Ch. App. 349, 
 
 (c) Walter v. Selfe, anU, p. 162. cmte, p. 214. 
 
 (d) Semple t. lond. & Birm. Rail Co., (j) Att.-Gen. v. Gee, L. E., 10 Eq. Ca. 
 1 Eail. Ca. 120. 131. x x. ^ t, ^ 
 
 (e) Swmpson v. Smith, 8 Sim. 272. (k) Coqke y. Pories, L. E., 5 Eq. Ca. 
 (/) imp. Gas &c. Co. v. Broadbent, 166, 
 
216 NUISANCES. [CHAP. IV. 
 
 that the removal of the nuisance is a task of great difficulty, though 
 that may be ground for suspending its operation for a period (/). 
 The injunction will be enforced by sequestration, if necessary (m). 
 
 Acquiescence precluding equitable relief. — In some cases it has 
 been held to be the duty of a person seeing a nuisance in pro- 
 gress, and having the power of abating it and stopping it, to give 
 notice to the person erecting the nuisance of his intention to object ; 
 and it is clear that a person may so encourage that which he after- 
 wards complains of as a nuisance, as to preclude him from any 
 claim in equity to an injunction (n). If a person sees a building 
 in progi-ess of erection which, when completed, must necessarily 
 darken his windows, and nevertheless allows the building to be 
 completed, and finished, and decorated, at great expense, "without 
 making any protest or complaint, or taking any proceedings against 
 the wrong-doer, the Court of Chancery wiU not interfere by injunc- 
 tion to compel the pulling down of the building, but will leave the 
 complainant to his remedy at law (p). But acquiescence in the 
 erection of injurious buildings, or of noxious works, while they 
 produce little injury, wiU not deprive the person so acquiescing of 
 his right to an injunction if the nuisance is increased and becomes 
 productive of more serious damage ; otherwise it would foUow that 
 a partial obscuration of ancient lights might be followed by their 
 total destruction, and that an easement assented to might be 
 increased at the pleasure of the grantee, provided it could be 
 shown that the increase was only a probable and natural conse- 
 quence of the use of the easement. Nor can a prescriptive right 
 be claimed, it seems, in such a case — ^at all events unless there 
 has been a continuance of sensible damage for the requisite 
 period (jo). 
 
 If a person has acquiesced in the erection of chemical or 
 smelting works, in ignorance of the nuisance that will arise from 
 them when they are put into operation, the acquiescence in the 
 erection is no acquiescence in the nuisance arising from them, and 
 will not preclude him from the remedy by injunction (q). And if 
 the person injured has refrained from taking any active steps to 
 abate or put an end to a nuisance in consequence of assurances he 
 has received from the persons creating the nuisance that measures 
 would be taken to put a stop to it, there is no Idches on his part, 
 and no such acquiescence as will deprive him of his right to an 
 
 '{I) AU.-Gen.-v. Colney Hatch Asylum, 31 Law J., Ch. 123. CotcUng y. Basset, 
 
 L. R., 4 Ch. App. 146. 32 Law J., Ch. 286. 
 
 (m) Spokes y. Banbury Board of Health, (p) Goldsmid v. Tunhridge Wrffe, L. 
 
 L. R., 1 Eq. Ca. 42. R., 1 Eq. Ca. 161 -,8.0.1 Ch. App. 349. 
 
 (n) WiUiamus v. Emi of Jersey, 1 Cr. Crossky r. Lightowler, infra. 
 
 & Ph. 97. See Exeter {Corporation of) v. (q) Bwnkart t. Houghton, 27 Beav. 431 • 
 
 Devon (Earl of), L. E., 10 Eq. Ca. 232. 28 Law J., Ch. 478. 
 
 (o) Cooper t. Hubbuch, 30 Beav. 160 ; 
 
SECT 3.] REMEDY BY INJUNCTION. 217 
 
 injunction (r). Nor will the fact that the plaintiff has purchased 
 the land with full knowledge of the nuisance, disentitle him to 
 relief (s). Nor the fact that the plaintiff is much more injured 
 by many other people, provided a definite injury can be traced to 
 the defendant (t). 
 
 Injunction to prevent tJie continnaiice of noisy nuisances. — If a 
 belfiy is erected so near to the dwelling-house of the plaintiff, 
 that the beUs when rung prevent people from being heard whilst 
 talking in the house, or disturb the rest of the inmates at night, 
 this is such an invasion of the domestic comfort and enjoyment of 
 a man's home as entitles him to an injunction to prevent the 
 nuisance (m). 
 
 Prevention of public nuisances. — Writs of prohibition were 
 formerly issued by courts of common law to prevent the continu- 
 ance of a public nuisance, such as the bowling alley near St. 
 Dunstan's Church ; the rope-dancer's stage at Charing Cross ; and 
 the play-house in Little Lincoln's Inn Fields (x) ; and courts 
 of equity will interfere by injunction to prevent public nuisances, 
 such as nuisances to public rivers, and public harbours, and public 
 roads ; and magistrates, boards of health, and commissioners of 
 public works, may be restrained from exercising their statutory 
 powers, so as to create or occasion a public nuisance {y). 
 
 Where, by an Act of Parliament, a corporation were directed 
 to cause a piece of land to be drained and levelled, and kept in a 
 proper condition, for purposes of public recreation, the court 
 restrained the corporation from using it for the holding of a cattle 
 fair {z). In informations and proceedings for the prevention of 
 public nuisances, the ordinary course is for the Attorney-General to 
 sue, as representing the public ; but individuals may come forward 
 and invoke the assistance of the court when they have themselves 
 individually sustained damage, and the interposition of the court 
 is required for the protection of their property (a), or the preserva- 
 tion of the beneficial use, occupation, and enjoyment of it (6). 
 
 The same principles of law guide the interference of the court 
 whether the nuisance be a public or a private nuisance (c). How- 
 ever, in the former case, where the public injury purports to be 
 
 (r) Att.-Gen. v. Birmingham, 4 Kay& 133. See post, ch. 16, s. 3. 
 
 J. 546. Dames v. MwrshaU, 31 Law J., Jz) Att.-Gm. yOorp.ofSouhampton, 
 
 p p gj 29 Law J., Ch. 282 ; 1 Gift. 363. 
 
 '(s) Timdna T St. JTelen's Smelting Co., (a) Crowder v. TinUer, 19 Ves. 621. 
 
 L K 1^ App 66 Att.-Oen. v. Forbes, 2 Myl. & Cr. 129. 
 
 \t)"OrissJ^ y Jdg'htowUr, L. E., 3 Eq. Spencer ^- Lor<d.Jr Birm EaU. Co., 1 
 
 r 979 ^* • ' ™' Sampson v. 
 
 \u) Saltan v. De Hdd, 2 Sim. N. S. 133. Smf„& Sim 272. Hephm-n v. Lordan, 
 
 (x) HaXPs case, 1 Mod. 76. Bex J. 34 L. J., Ch. 293. 
 Betterton 5 Mod. 142; Skin. 625, 627. (6) Soltau v. De Held, supra. 
 TtTTDJsetjZtim 15 Bast, 594. (c) Att.-Gen. v. SUff- Gas Co., 3 De 
 
 %)'AtZ6en.y!^orbes, 2 Myl. & Cr. Gex, M. & G. 315 ; 22 Law J., Ch. 812, 
 
218 NUISANCES. ^ [CHAP. IV. 
 
 asserted, it is not immaterial, at least upon an interloeutory appli- 
 cation, e.g., for an injunction to restrain a nuisance, to look into 
 the motives from which the case is brought forward (d). 
 
 The court will not grant an interlocutory injunction before the 
 hearing of the cause, unless it is necessary for the protection of 
 property, or the prevention of some threatened injury thereto (e) ; 
 nor will it interfere in any case, as we have seen, to protect a dry- 
 legal right or title, merely because the legal right is infringed (/). 
 
 Prevention of pvhlic nuisance hy indictment. — In the case of 
 public nuisances, such as obstructions in public thoroughfares or 
 navigable rivers, or suffering boughs of trees to overhang highways, 
 or ditches adjoining them to become foul and choked up, or 
 buildings by the side of public thoroughfares to become ruinous, 
 the. remedy is by indictment in respect of the public injury {g), 
 and by action in respect of any particular or special damage sus- 
 tained by individuals (7i). 
 
 The following nuisances have been held indictable : — The over- 
 crowding of houses with poor people in time of infection of plague, 
 and therieby endangering the health of the neighbourhood (*) ; the 
 carrying of people infected with contagious disorders along public 
 thoroughfares in such a way as to endanger the health of the pas- 
 sengers (/) ; or the exposure for sale in a public place of a horse 
 affected with glanders Qc) ; the 'keeping of large quantities of gun- 
 powder in dangerous proximity to populous neighbourhoods (J) ; 
 the carrying on of noxious and offensive manufactures in public 
 places, or adjoining public thoroughfares, so as seriously to incom- 
 mode and annoy large numbers of persons (m) ; holding out 
 inducements to people to collect together in lafge crowds, to the 
 obstruction of public thoroughfares, the treading down the grass 
 of the neighbouring meadows, the destruction of fences, 6r the 
 creation of alarm and disturbance in the surrounding neighbour- 
 hood (to) ; the making of a great noise in the night with a 'speaking, 
 trumpet, to the disturbance of divers householders (o) .; sawing of 
 logs of timber in a public street, and incumbering a road or foot- 
 path with barrels of beer {p) ; the opening of new coal-holes, and 
 unloading coals in a public thoroughfare, in places where no coal- 
 
 {d) Att.-Gen. v. Cambridge Qas Co., L. East, 196. 
 
 E., 4 Ch. App. 71.' ' {i) 2 EoU. Abr. 139, pi. 3. 
 
 (e) Att.-Gen. v. United King. EUa. Tel. (j) Rex T. VantamMUo, i M. & S. 73. 
 
 Co., ante, p. 77. (h) Seg. t. Benson, 1 Dearsl. C. C. ii. 
 
 (/) Wandsworth Boa/rd r. Land. 4 S. (I) Sex v. Tayloi; 2 Str. 1167. 
 
 W. R., ante, p. 76. T. Mitchell, 31 Law J., M. C. 163. 
 
 (jr) Rex \. Russell, 6 East, 427. Rex (m) Rex t. White, 1 Burr. 335. JRex 
 
 V. Cross,,3 Campb. 226. Rex v. Jones, 3 v. Pa^ppineau, 2 Str. 686. RexT.'Neil,'2 
 
 Campb. 230. Reg. v. Watson, 2 Ld. C. ^ P. ^85. 
 
 Eaym. 856. WeM, v. HoHiJiy, 7 East, (re) i2^ v. ilfoore, 3 p. & Ad. 1S4. 
 
 195. Reg. v. Leech, 6 Mod. 145. (o) Rex v. ifigginson, 2 Burr. 1233. 
 
 (h) Ahte, p. 201. Rex v. t>ewsnap, 16 {p) Rex t. Jones, 3 Campb. 229. 
 
SECT. 3.] KEMEDY BY INDICTMENT. 219 
 
 hole previously existed, and where the highway was not originally 
 dedicated subject to the use of it for domestic coaling (q) ; making 
 excavations and openings in the soil of a highway, or in the pave- 
 ment of a public street, for water, gas, sewerage, or other purposes, 
 without parliamentary authority (r) ; the use on a highway of a 
 traction steam-engine, which, by its noise and appearance, frightens 
 horses, and raakes the highway dangerous to persons riding or 
 driving (s) ; mixing of large quantities of alum and deleterious and 
 prohibited ingredients in bread, intended for the use and consump- 
 tion of the public (t) ; keeping of a disorderly house, gaming-house, 
 or bawdy-house (u) ; indecent bathiag (x), and the indecent exposure 
 of the person in any public place within view of persons resorting 
 there, or within view of the inhabitants of a dwelliag-house (y) ; 
 and a place may be a public place, although it is not a highway or 
 place of public resort (s). But the exposure must be in the presence 
 or within view of more persons than one, in order to render it a 
 public nuisance (a), and it must be a wilful and indecent exposure, 
 and not such an exposure as may be made in a public urinal (6), or 
 under the pressure of paramount necessity. 
 
 It is no defence to an indictment for a public nuisance to show 
 that the public generally are benefited by it, though a portion of 
 the public may be inconvenienced, " for if the violation of rights 
 which belong to any part of the public is to be vindicated by the 
 benefit which may arise to another part of the public elsewhere, 
 inquiries would be introduced of a most vague and unsatisfactory 
 nature, and speculations entered into which no jury could be 
 expected properly to decide ",(c). 
 
 Nuisances in public highways. — " Highway is the genus of all 
 public ways, as well cart, horse, and foot-ways, and an indictment 
 lies for anyone of these ways, if they be common to aU the Queen's 
 subjects having occasion to pass there ; that is, if it be a foot-way 
 only, common to them all, or a horse-way and a prime- way; and 
 these are not altce regice vice, for that is the great highway common 
 to cart, horse, and foot, that please to use it " (d). 
 
 (q) Cockbum, 0. J., 29 Law J., M. C. (») -S^?- y. Watson 2 Cox Cr. 0. 37^ 
 
 12S Webbs case, 1 Den. Cr. (J. 338 ; 2 L. & 
 
 M Reg. y. Longton Gas Co., 29 Law J., K. 933. EUiot's case, Leigh & Care, C. 
 
 M C 119 '-'• ^- ^^^' 
 
 \s) ' Watkns y. Beddm, am.te, p. 172. (J) Reg. v. OrOm-d, 3 Ooi, Cr. 248. 
 
 (t) Rex y. Dixon, 3 M. & S. 11. But see Beg. v. Barns, L. E., 1 0. C. K. 
 
 (u) Rex y. Smith, 2 Str. 704. Reg., v. 282. w j ^ 
 
 Roaier 1 B & C 272. Reg. y. Williams, (c) Ld. Denman, C.J., iJea; v. Wa/rd, 4 
 
 1 Salk! 383.' As to the meaning of the Ad. & E. 460. Rex v. TirM 6 Ad. & 
 
 word "keeping," see Reg. v. Stannwrd, E. 143. Segmgbotham y.Sast. <fe Oont. 
 
 33 L. J., M. 0. 61. See also Gwrrett y. St. Pacha Co., ante, v. 163. ^g.y 
 
 Messenger, L. R., 2 C. P. 583. Tra^n,3l Law J., M. 169. ; Q B. 179 
 
 ' {*) R^ V. CrLden, mUe, p. 37. Overruling on this point Rex y. Ruasett, 6 
 
 M Sivy's case, 1 3id. 168, ffolmesS B. & C. 566. 
 
 cJC Dears. Cr. C. 207. (d) Ssg. v. Samt^, 6 Mod. 256. 
 
 (z) Reg. y. ThaWman, 33 L. J., M.C. 58. 
 
220 NUISANCES. [CHAP. IV. 
 
 Indictment against a corporation. — A corporation or a railway 
 company is as much amenable to an indictment for obstructing a 
 public thoroughfare as any private person is. "It is as easy," 
 observes Lord Denman, C.J., "to charge a body corporate (by 
 indictment) with erecting a bar across a public road as with the 
 . non-repair of it, and they may as well be compelled to pay a fine 
 for the act as for the omission" (e). 
 
 Proof of dedication of way to thepuUic. — If the owner of the soil 
 makes and throws open a foot-way or carriage-way leading from 
 one part of a public thoroughfare to another part of a public thorough- 
 fare, and neither marks by chain or bar, or visible distinction, that 
 he means to preserve aU his rights over it, nor excludes persons 
 from passing through it by positive prohibition, and the public 
 notoriously use the way for a number of years (see post, p. 222), it 
 is presumed to be dedicated to the use of the public, and becomes 
 a piiblic highway, which cannot lawfully be interrupted, though it 
 was originally opened and intended for private convenience (/). 
 The user and enjoyment of the way by the public must'have been 
 had under circumstances from which an intention on the part of 
 the owner of the soil to dedicate the way may fairly be inferred. 
 If, therefore, the passage of the public was allowed imder some 
 special agreement or license of the owner of the soil, the conditional 
 and permitted user will not establish the public right. Thus, 
 where the owner of land agreed with an iron company,, and with 
 the inhabitants of a hamlet repairing its own roads, that a way 
 over his land in such hamlet should be open to carriages, that the 
 company should pay him five shUlings a-year, and find cinders to 
 repair the road, and that the inhabitants of the parish should lay 
 down and spread the cinders, and the way was thereupon left open 
 to aU persons passing with carriages for nineteen years, at the end 
 of which time a dispute arising, and the road being left unrepaired, 
 the owner of the land stopped up the road, it was held that there 
 had been no dedication of the road to the public, but only a license 
 to use it on certain terms and conditions, which license might be 
 withdrawn on the conditions not being complied with (g). 
 
 Where an ancient highway was illegally stopped, and the public 
 deviated on to the adjoining land, which was an open down, form- 
 ing a track nearly parallel with the old road, which track they 
 continued to use for about twenty years, when it was stopped, and 
 the old road was re-opened to the public, it was held that the 
 deviating track had not become a public highway, as it had never 
 
 (e) See. V. Gt. North of Eng. Hail. Co., herts v. Can; ib. 263. Bex t. Barr, 4 i6. 
 
 9 Q. B. 325. Seg. v. Birm. Js Glouc. Mil. 16. 
 
 Co., 3 Q. B. 223. (g) Ba/rrachugh v. Johnson, 8 Ad. & E. 
 
 (/) Bex V. Lloyd, 1 Campb. 260. So- 99 ; 3 lil. & P. 233. 
 
SECT. 3.] DEDICATION OF HIGHWAY. 221 
 
 been used by the public except when they had been shut out from 
 the old road, and the user, being referable to the right of the public 
 to deviate on to the adjoining land whenever the owner of the soil 
 illegally stopped the highway (A), would not establish any perma- 
 nent dedication of the deviating track to the use of the public, so 
 as to make it a permanent public thoroughfare (*). 
 
 User of a way hy the public is iy no means conclicsive of the way 
 heing a jouUic way ; it is evidence only to be weighed in connexion 
 with surrounding circumstances. Where, therefore, there was a 
 wood, and divers paths or tracks through it leading in different 
 directions, and people wandered where they pleased through the 
 wood and made tracks, but the tracks were used only in dry 
 weather, and were hardly passable after rain, and led to no public 
 place which could not be reached by a more convenient thorough- 
 fare, it was held that this was a mere permissive user of the wood 
 for purposes of recreation and pleasure, and that there was no 
 dedication of a way to the public to be used " as of right " {k). 
 
 The right to the use of a public foot-way includes the right of 
 bringing on to it all the ordinary accompaniments of a foot- 
 passenger, not being of a size to obstruct the way and interfere 
 with the use of it by other passengers (J). 
 
 Proof of animus dedicandi. — There must be on the part of the 
 owner of the soil an animus dedicandi, of which the user by the 
 public is evidence and no more, so that a single act of interruption 
 by the owner of the soil is of much more weight upon the question 
 of intention than many acts of enjoyment (m). But the question 
 of dedication does not depend upon what a man says, but upon his 
 acts. " A man may say that he does not mean to dedicate a way 
 to the piiblic, and yet, if he has allowed them to pass every day for 
 a length of time, his declaration alone would not be regarded. The 
 facts may warrant a jury in believing that the way was dedicated) 
 though he has said that he did not so intend ; and if his intention 
 be insisted upon, it may be answered that he should have shown it 
 by putting up a gate, or by some other act " {n). If the owner of 
 the soil shuts up the way only one day in the year, that is suffi- 
 cient to show that he does not intend to dedicate, but gives a 
 license only (o). 
 
 Where the owner of the soil had placed and maintained a gate 
 across a foot-way, with the view of preventing a public right of 
 
 Ck) Ahsor-v. French, 2 Show. 28. Steel (m) Parke, B., Poole v. ffusJeimon, 11 
 
 V. PricJcett, 2 Stark. 463. M. & W. 830. 
 
 (i) Dawes t. Hamhiins, 8 C. B., N. S. {n) Littledale, J., Barrmlough v. John- 
 
 ggy son, 8 Ad. & E. 105. .Siirrey Gwnal Co. 
 
 (i) Schuringe v. DoweU, 2 F. & P. 848. v. ffaU, 1 So. N. K. 264 ; 1 M. & Gr. 
 
 Chapnumv:Ori^ps,il>.8S7. MUdred y. 403. ^ „ . . , ,, 
 
 Weaver ib 33 (") -Cruslees of Bntuh Museum v. 
 
 (0 Beg. V. Mathiai, ib. 570. Fmnis, 5 C. & P. 465. 
 
222 NUISANCES. [CHAP. IV. 
 
 passage, aud the gate went to decay, and for twelve years there was 
 no gate at all, and then the owner of the soil put up a new gate at 
 the place where the old gate formerly stood, it was held to be a 
 question for the jury whether the owner of the soil, from suffering 
 the gate' to he down so long, and permitting th? pu]3lic to use 
 the way without obstruction for so many years, had completely 
 dedicated the way to the public, so that the gate could not be 
 replaced (p). "Where a bar, placed across a bridge, was kept locked, 
 and opened only in times of flood, when the ford hard lay was 
 dangerous or impassable, it was held that this was conclusive to 
 show that there was no general right of passage {q). 
 
 If there has been a public uninterrupted user of a road for 
 such a length of time as to satisfy a jury that the. owner of the 
 soil, whoever he might be, intended to dedicate the road to the 
 public, this is suificient to prove the existence of a highway, though 
 it cannot be ascertained who was the owner of the soil of the road 
 during the time it was so used (r). The open user by the public 
 of a way as of right raises a primd facie presumption of the 
 existence of the public right, and when such user is proved, the 
 onus lies on the person who seeks to deny the inference from such 
 user to show that the ^tate of the title was such that dedication 
 was impossible, and that no one capable of dedicating existed (s). 
 There is nothing in the nature of a sea-wall or embankment erected 
 to ptotect land against the encroachment of the sea inconsistent 
 with the existence of a public right of way along it, except so far 
 as the necessary repairs of the wall might make a temporary 
 stoppage of the way necessary (^). 
 
 If an owner of land lets land on building leases, and houses are 
 built which require a way to them, and a way is made, and used 
 by carts and carriages going to these houses, and which can go 
 nowhere else, there is nothing from these facts alone to establish a 
 dedication of the way to the public (u). 
 
 Occwpaiion roads, laid out through an estate for the use and 
 convenience of the occupiers, are not thereby dedicated "to the 
 public {v). 
 
 No particular time of enjoyment is necessary for evidence of 
 deification ; it is not, like a grant, presumed -from length of time. 
 If the act of dedication be unequivocal, it may take place im- 
 mediately ; for instance, if a man builds a double row of houses, 
 opening into an ancient street at each end, making a new street, 
 
 (p) Letlibriid^'e x. Winter, 1 Oampb. 263. (t) Gfreervwich Board of Works t. 
 
 (2) Bex V. Marquis of Bmkiiigham, 4 Maudalay, L. R., 5 Q. B. 397. 
 
 Cifipb. 190. (a) Wobcl/yer v. Sadden, S Taunt. 140. 
 
 (r) Reg. v. East Mark, 11 Q. B. 877. But see Bateman v. Bluck, infra. 
 
 ■Williams, J., Barnes r. SawMns, 8 C. B., (v) S^liy v. Cryat. Pal. 3istr. Gas Co., 
 
 N. S. 857 ; 29 Law J., C. P. 343. - 31 Law J., Ch. 595. 
 
 (s) Beg. T. Petrie, 4 Ell. & Bl. 737. 
 
SECT. 3.] , DEDICATION OF HIGHWAY. 223 
 
 and sells or lets the houses, • that is instantly a highway, and, 
 although the new street may terminate in a cul de sac, it may 
 nevertheless be a public place, accessible to all. But if a bar or 
 rope, or the slightest obstruction, is put up, showing that the owner 
 of the soil does not intend to give a general and unreserved right 
 of passage, that will prevent a dedication. And to support any- 
 thing like a dedication, the street or road must be finished as a 
 perfect street ; for if the foot-ways are not completed, or paving- 
 has to be done, or fences to be put up, the evidence of an intention 
 to dedicate is insufficient (x), unless the way has been used in its 
 unfinished state as a public thoroughfare for a considerable number 
 of years {y). 
 
 There may be a highway, hy dedication to the public, where there 
 is no thoroughfare. — Where there was a public street, and at the 
 side of it a passage leading to a court, consisting of fifteen houses, 
 all of which belonged to the plaintiff, but the court had been freely 
 used by the public for many years without restriction, it was held 
 that this was evidence from which a jury might find a dedication 
 to the public, although the court and thoroughfare had originally 
 been made for the use of the occupiers of the houses, and led only 
 to their dwellings (z). A highway, therefore, may exist, though it 
 is not a thoroughfare. But if a road be made for the accommo- 
 dation of particular persons only, it is not a public road, and 
 there is no reason why the inhabitants in a street which is not a 
 thoroughfare should not put up a fence at the end of it, and exclude 
 the public (a). 
 
 Who may dedicate. — A mere tenant or lessee has no power to 
 throw open land to the public, and create a public thoroughfare in 
 derogation of the rights of the landlord or reversioner. There can- 
 not be a public way by dedication, unless there be some evidence 
 to show that the owner of the soil has consented to such user. The 
 consent of the lessee is not sufficient for that purpose, because it 
 cannot bind the owner of the inheritance (b). But if the acts of 
 user are notorious, and go on for a great length of time, and not- 
 withstanding a frequent change of tenants, it may be presumed 
 that the owner has been made aware of them, and that the way 
 was used with his concurrence (c). 
 
 " Com/missioners of public works have no power to dedicate to the 
 use of the public, as a highway, land which they have been in- 
 trusted with the ownership of for a special purpose, and for which 
 
 (x) Woodyer v. Hodden, 5 Taunt. 140. (a) Best, J., Wood t. Veal, B B. & Aid. 
 
 (3^) Jm-vis T. Dean, 3 Bing. 447. 457. 
 
 (z) Sateman t. Muck, 21 Law J., Q. B. (ft) Wood v. Veal, 5 B. & Aid. 454. 
 
 407 Harper t. Charlesworth, 4 B. & C. 591. 
 
 (c) Davies v. Stephens, 7 0. & P. 570. 
 
224 NUISANCES. [CHAP. IV. 
 
 special purpose the land may at some future period be required. 
 As aU the King's subjects are presumed to know Acts of Parliament, 
 they, when they used the road, must be presumed to have known 
 that, in point of law, it could not be so dedicated, and that it could 
 only be used as a way of permission and sufferance ; and they 
 cannot be considered as having acquired a right by adverse enjoy- 
 ment, but only by usurpation on rights which were designated by 
 Parliament, and which, therefore, could not be infringed upon" (d). 
 
 Limited dedication. — There may be a dedication of a way for 
 a limited purpose, as for a foot- way, horse- way, or drift-way, but 
 there cannot be a dedication to a limited part of the public, as to 
 the inhabitants of a particular parish. Such a dedication would be 
 simply void (e). A way may be dedicated to the use of the public 
 for all purposes except that of carrying coals, so that persons 
 carrying coals may be prevented from passing along it (/). Where 
 there was a strip of open uninclosed land between a public carriage- 
 road and a paved footpath, and the owners of the houses by the 
 side of the paved foot-way had always, by permission of the owner 
 of the soil, used the space between the foot and carriage-way for 
 purposes connected with their occupations, whenever they had 
 occasion, and such use as the public had of it was of a limited and 
 uncertain character, and was subject to the use of it made by such 
 occupiers, it was held that the dedication to the public of the use 
 of the intermediate space was subject to the use so made of it by 
 the landlord and his tenants {g). 
 
 A highway may also, as we have seen, be dedicated to the 
 public, subject to the existence of steps, cellar-flaps, and obstruc- 
 tions rendering the way dangerous, so that the public must take 
 the way subject to these inconveniences (ante, pp. 173, 174). 
 
 Gates across a highway. — ^When a way has been dedicated to the 
 use of the public subject to a gate across it, the public can only 
 take the way subject to the inconvenience of the gate ; but when 
 the way has been dedicated without a gate, the owner of the soil 
 cannot lawfully obstruct the road with a gate (A). 
 
 There can he no dedication for a limited time, certain or uncertain. 
 If dedicated at all, the way is dedicated in perpetuity. Hence the 
 maxim " once a highway, always a highway" — for the public can- 
 not release their right, and there is no extinguishment of the public 
 right by presumption or prescription {i). 
 
 Common highway of rbecess^ty. — -" If there be but one road to a 
 
 (d) Littledale, J., Rex v. Leake, 5 B. {g) ZeNevev. Vestry of MUe End, die, 
 & Ad. 485. 8 EU. & Bl. 1054 ; 27 Law J., Q. B. 208. 
 
 (e) Bermondsey Vestry v. Brown, L. E., (/i) James v. ffayward, ante, p. 174. 
 
 1 Eq. Ca. 204i (i) Byles, J., Dawes y. HawUns,S C.B., 
 
 (/) Marquis of Staford v. Coyney, 7 N. S. 857 ; 29 Law J., C. P. 343. 
 B, & e. 257. 
 
SECT. 3.] OBSTRUCTIONS IN HIGHWAYS. 225 
 
 place, and no other way of going, that is a way of necessity ; if the 
 jury find this, we take it to be a common highway by necessity" (k). 
 If a vill be erected, and a way laid out to it, if there be no other 
 way but that to the vill, it is not material quo animo it was laid 
 out, it shall be deemed a public way Q). 
 
 Proof of highway hy proof of parish repairs. — The fact of a road 
 having been repaired by a parish " as far back as living memory 
 can go," is a strong fact in favour of the road being a public road, 
 but it is not conclusive (m). 
 
 Indictable obsimctiom in public thoroughfares. — A highway may, 
 as we have seen, be dedicated to the public subject to a pre- 
 existing easement, such as a right vested in the owners of adjoining 
 land, of depositing goods thereon in certain places (n). 
 
 In the case of an ordinary highway running between fences, tlie 
 right of way or passage, prima facie, and unless there be evidence 
 to the contrary, extends to the whole space between the' fences, and 
 the public are entitled to the use of the whole of it as the highway, 
 and are not confined to the part which may be metaUed or kept 
 in order for the more convenient use of carriages and passengers. 
 It is an indictable offence, therefore, to place posts on greensward 
 and open places extending between the metalled part of the road 
 and the fence, dividing the road from the adjoining land, althougli 
 the posts do not in point of fact offer any injurious obstruction to 
 the public traffic. It is enough tha^they stand in the way of those 
 who may wish to traverse the whole space between the fences (o), 
 and neither vestry trustees nor commissioners of highways can 
 authorize the placing of anything on a highway which constitutes 
 a public nuisance ; and it is no answer to an indictment for 
 obstructing a thoroughfare to show that the obstruction, such as a 
 tramway, though an annoyance to some passengers, is a great con- 
 venience to others, for " you cannot, for the advantage of one part 
 of the public, commit acts which are a nuisance to another part" (p). 
 If, instead of an indictment at common law, an injunction in 
 Chancery is applied for, it must be in the name of the Attorney- 
 General (q). 
 
 By the 27 & 28 Vict. c. 101, s. 51, penalties are imposed upon 
 any one encroaching on the soO. of a highway by placing any 
 building, fence, &c., or manure, rubbish, &c., on the sides of any 
 
 (k) Chichester v. Zethh-idge, Willes, 72. J., M. C. 167. Sex t. Wright, 3 B. & 
 
 (I) Beg. V. Inhab. of Homseu, 10 Mod. Ad. 683. Turner t. Singwood Highway 
 
 ISO Board, post, ip.SOd. 
 
 (m) Reg.T. Sawikwrst, 11 W. B. 9; (p) Beg. v. Train, 51 LawJ.,M. C. 
 
 7 Latr T B N S. 268. 169. Bex v. Ward, Bex v. TindaU, ante, 
 
 (n) Morant v.' Chamberlain, ante, ^.n9. See '^ The Tramways Act, 1870;" 
 
 p. 173. Le Neve r. MiU End Vestry, Jsc., 33 & 34 Vict. o. 78. See ss. 40, 55, & 62. 
 supra. (?) Bermondsey Vestry v. Brown, ante, 
 
 (o) Beg. V. Uh. King. Tel. Co., 31 Law ji, 224, 
 
 <! 
 
226 NUISANCES. [CHAP. IV. 
 
 carriage or cart-way, within fifteen feet of the centre thereof, or by 
 removing the turf, &c., from the side of the road, and the expense 
 of removing the ohstruction is to be levied by order of justices on 
 the persons offending (r). This Act extends to any land which h,as 
 been dedicated as and forms part of the highway, though not 
 metalled, but not to land on the side of the road, which has not 
 been so dedicated (s). 
 
 Indictable obstructions in navigable rivers. — An erection in a 
 port or navigable river is not to be deemed a nuisance, simply 
 because it infringes on the water-way. It is not every buUdiag 
 below the high-water mark, nor every building below the low- 
 water mark, that is ipso facto in law a nuisance, for that would 
 destroy all the c[uays in all the ports of England. "Whether a 
 building, in or near the water, be a nuisance or not, is a question 
 of fact, to be determined by a jury, on evidence, and not a question 
 of law(i(). "Where the navigation of a river has become obstructed 
 by a vessel which has sunk, and been lost to the owner, without 
 any fault of his, the public inconvenience of the obstruction is one 
 in respect of which the owner differs from the rest of the public 
 only in having sustained a private calamity, in addition to' his 
 share of a public inconvenience; aijd this difference does not 
 appear to be any reason for throwing on him the cost of remedying 
 or mitigating the evil. Lord Kenyon held that the owner of a ship 
 sunk ia the Thames by accident and misfortime, without his default 
 or misconduct, was not liable to an indictment for not removing 
 the obstruction. It was contended, for the prosecution, in this 
 case, that although the defendant was not punishable for causing 
 the nuisance, it having arisen from accident, it was his duty to 
 remove it ; but the learned judge answered, that perhaps the 
 expense of removal might have amounted to more than the whole 
 value of the property " (u), 
 
 Repair of Tiigliways, sea-ianks (v), and sewers. — The Highway 
 Act, 1835, 5 & 6 Wm. 4, c. 50, requires (s. 23)'three months' notice 
 to be given to the surveyor of highways of the intention to dedicate 
 any road or occupation-way, made by private persons, bodies politic 
 or corporate, or any private drift-way and horse-path, set out in 
 any award of commissioners under an inclosure Act, describing its 
 situation and extent, and also the certificate of two justices in petty 
 sessions that it has been made in a substantial manner, and of the 
 width required by the Act before any such road, &c., shall be deemed 
 
 (r) As to cattle straying o?i highways, Tracts, p. 85. Sex. y. Smsell. 6 B. & C. 
 see B. 25, ante, p. 198 in notis ; on a turn- 572 ' " "• ** ^ • 
 
 BnidTl ?ni'"t^'^ ■^'^'"""2/ Srown y. MaUet. 5 C.B.ei9. White y . 
 mrri ¥>'"S ;-^®' ,r . Crisjp, ante, p. 176. 
 
 (8) Hale, De Portibus Mans Hargr. («) See jposi, p. 229, 232 
 
SECT. 3.] NON-EEPAIE OF HIGHWAYS. 227 
 
 to be a highway, which the inhabitants of the parish shall be oom- 
 pellable to repair, but in all other respects as regards the right of 
 the public to use it, it remains a highway (w). 
 
 If a highway is washed away and totally destroyed by the sea, 
 so that there is no longer anythingJeft to repair, and nothing that 
 can be effectually restored, the parish is released from its liability 
 to repair (x). 
 
 LiaMlity to repair ratione clausurm. — ^Where a defendant is 
 sought to be made responsible for the non-repair of a highway, on 
 the ground that he has enclosed vacant spaces of ground adjoining 
 the highway, and encroached on land used for passage when the 
 beaten track was foundrous, it must be proved, first, that the high- 
 way has been used immemorially as a highway ; secondly, that the 
 land inclosed has been used for passage when the beaten track 
 was foundrous ; thirdly, that the defendant is the occupier of the 
 inclosed land taken from the public thoroughfare, for there is 
 neither precedent nor authority for charging the owner not in 
 possession (3/). 
 
 The parish of common right ought to repair their highway (s), 
 unless by order of magistrates .they have been relieved from their 
 liability (a). "Where, indeed, there are several townships in one 
 parish, a particular township may, by immemorial usage, be liable 
 to repair its own roads distinct from the parish at large (J). But 
 it lies upon the township to establish its exemption from the ordi- 
 nary rule (c), and it is not sufficient for this purpose to show that 
 it has never been assessed to the highway-rates of its own parish, 
 but has always been treated as part of an adjoining parish, and 
 'rates levied upon it by such parish iintH recently, when, by arrange- 
 ment with such parish, the occupiers repaired the highways them- 
 selves, without any rate being made ; for the proper inference from 
 such facts is, not that it is a township repairing its own roads, but 
 that, by some old arrangement made for mutual convenience, it was 
 considered part of the adjoining parish for the purposes of repair, 
 and on the termination of that arrangement all parties are remitted 
 to their original rights and liabilities {d). "Where to an indictment 
 for the non-repair of a highway in parish A the defendants 
 pleaded that from time immemorial the inhabitants of parish B, 
 in consideration of levying and receiving rates on certain lands in 
 parish A, had repaired such highway, it was held that such a 
 liability, if it could exist at all, which was very doubtful, could only 
 
 (w) Mdberta v. Hvm.t, 15 Q. B. 17. Board, L. E., 6 Q. B. 181. 
 
 \x) Beq. V. Hornsea, 23 Law J., M. C. (a) See Heff. v. Justices ofSwrey, L. E., 
 
 59. " 5Q.B.466. 
 
 (y)' Sea. v. Ramsden, Ell. Bl. & Ell. (M Bex v. Eccle^W, 1 B. & Aid. 348. 
 
 949 ; 27 Law J., M. C. 296. (c) Freeman t. Read, 4 B. & S. 174. 
 
 (z) Rex V. Bagley, 12 Mod. 409, per (d) Dawsonr. WillougKby-n-itli-SlooMy, 
 
 Holt, C.J. See liivst v. Halifax Load 3i L. J., M. C. 37. 
 
 Q 2 
 
228 NUISANCES. [CHAP. IV. 
 
 arise on sufficient consideration, and that the consideration stated,, 
 viz., an immemorial custom to levy rates, was clearly not sufficient, 
 for the power to levy rates existed by statute only, and arose long 
 9.fter the time of legal memory. Any arrangement, therefore, made 
 by adjoining parishes as to mutual repair can be put an end to at 
 any time (e). 
 
 Repair hy Bistrict Highway Board. — By tlie 25 & 26 Vict. c. 61, 
 the formation of district highway boards is authorised. By the 
 17th section, such board is directed to maintain the highways 
 within their district, and they are to have the same powers, to be 
 subject to the same liabilities, and to perform the same duties as tlie 
 parish surveyor would have performed or been liable to if the Act 
 bad not been passed. By the 18th section provision is made for the* 
 issue of a summons by a justice of the peace if the highway is oixt 
 of repair, and for the making of an order at petty sessions for such 
 repair, which order is removable into the Court of Queen's Bench, 
 in the same way as an order of general or quarter sessions. If the 
 liability to repair is disputed, the justices are to order an indict- 
 ment against the parish or person charged with the repair (s. 19). 
 But this section only applies to admitted highways, and does not 
 apply where the liability to repair, if the highway is one, is ad- 
 mitted, but it is denied that it is a highway at aU (/). When any 
 private person or body politic, liable to repair a highway, rationc 
 temcrce, or otherwise, omits to repair such highway, the district 
 board may repair it, and recover the expenses from the party liable 
 (s. 34) (g). Such person or body politic, however, or the district 
 board, Inay apply by summons before justices to have such high- 
 way made repairable by the parish, on payment of such a sum to 
 the highway board as the justices think fit (s. 35) (g). If the parish 
 wish to undertake the repair of a private road in return for its use, 
 and the owner and occupier is willing, on application to justices in 
 petty sessions, they may declare it repairable by the parish (s. 36). 
 No person is to .become liable for the repair of a highway by erect- 
 ing fences between the highway and the adjoining land, if the fences 
 have been erected with the consent of the district board, or other 
 authority having jurisdiction over the highway (s. 46). By the 
 27 & 28 Vict. c. 101, s. 22, the district board may contract for thi'ee 
 years with any person liable to repair a highway, to repair it them- 
 selves, and vice versa. 
 
 Ditches of turiupike roads. — By the General Turnpike Act, 
 3 Geo. 4, c. 126, s. 113, the duty of cleansing, -scouring, and keep- 
 
 (e).££g.^.Ashhy Foh!UU,J^.'R., 1 Q.B. (/) lUg. v.Farrer, L, E., 1 Q. B. 558; 
 
 213. PcAe^on v. WiOoughby-irifhrSloomy, 35 li. J., M, C. 210. 
 supra. (gt) These sections are amended by 27 
 
 & 28 Vict. c. 101, SB, 23, 24. 
 
SECT. 3.] KOAD-SIDE DITCHES, SEA-AVALLS, SEWERS, ETC. 229 
 
 ing open ditches and watercourses for the purpose of keeping turn- 
 pike roads dry, is cast upon the trustees, and not upon the owners 
 of the adjoining lands (h). 
 
 Where a person owning land adjoining the sea is liable ratioiie 
 tenurw to repair the sea banks as a defence agaiast the iiTuption of 
 the water; the Commissioners of Sewers, under 23 Hen. 8, c. 5, s. 3, 
 have power to do the repairs, and to fine such owner for the amount 
 expended, without giving him any notice ; and for such a purpose 
 the mortgagor, who is in receipt of the rents and j)rofits of the land 
 by his tenant, is the owner (i). 
 
 By the common law the repair of public sewers is either by 
 prescription ratione tenurce, or is imposed upon the land that is 
 benefited or preserved from damage by them (k). 
 
 (h) Merivak V. Trmtees of Exeter Turn- P. 565. As to paving expenses under 
 
 pike Road, L. R., 3 Q. B. 149 ; 37 L. J., the Public Health Act (11 & 12 Vict. 
 
 M. C. iO. c. 63, B. 69), see Coolc t. Ipswich Local 
 
 (i) Ikg. T. Baker, L. E., 2 Q. B. 621. Board, L. B., 6 Q. B. 451. Who is 
 
 Who is "owner" under a building agree- 'o'wner" under that Act, Bowdiitch v. 
 
 ment for the purpose of recouping the Wakejield Load Board, ib. 567. 
 
 District Board of Works in London (k) See BinUn v. Wj/lie, 36 L. J.. Q. B. 
 
 money expended in paving, see Lady 307. 
 HoUand v. Kensington Vestry, L. K., 2 C. 
 
230 
 
 CHAPTEE V. 
 
 or INJUEIES TO LANDS AND TENEMENTS FROM WASTE, 
 NEGLIGENCE, AND FIRE. 
 
 Section I. — 0/ injuries to realty from 
 loaate, So. — Commissive and permissive 
 waste — Waste by lessees, tenants for 
 term of years, tenant-at-will, and 
 tenant for life — ^Waste in trees and 
 woods— Decaying timber — Equitable 
 waste, where tenant for life bold a 
 without impeaohmcnt of waste — Ec- 
 clesiastical dilapidations — Waste by 
 copyholders and tenants in common 
 -^Waste from the removal of things 
 attached to the freehold — Landlord's 
 fixtures — Tenant's fixtures — Orna- 
 mental and trade fixtures — Fixtures 
 removable by custom — Abandonment 
 of the right to disannex and remove 
 fixtures — Right of purchasers and 
 mortgagees to enter and remove fix- 
 tures — Waste by strangers upon lands 
 
 demised to tenants — Licence to com- 
 mit waste — Injuries from fire — Fire 
 sprcEicling from blast-furnaces, steam- 
 engines, and railways — Fires occa- 
 sioned by the negligence of servants — 
 Injuries from gunpowdet and explosive 
 substances. 
 
 Section II. — Of remedies for injuries to 
 lands from, loaste, negligence, and fire. 
 — Actions for waste — Actions by 
 owners of insured premises — Parties, 
 pleadings, defences, and evidence — 
 Assessment of damages. 
 
 Section III. — Of injunction to prevent 
 waste. — Parties liable to an injunction 
 — Effect of acquiescence in the com- 
 mission of waste — LSclies or delay in 
 seeking a remedy. 
 
 SECTION I. 
 
 OF INJURIES TO LANDS AND TENEMENTS FEOM WASTE, NEGLIGENCE, 
 
 AND FIKE. 
 
 " Waste," observes Blackstone, " is a spoil or destruction of 
 
 houses, gardens, trees, or other corporeal hereditaments, to the 
 
 disherison of him that hath the remainder or reversion. It is 
 
 either voluntary, which is a crime of commission, as hy pulling 
 
 down a house, or it is permissive, which is a matter of omission 
 
 only, as by suffering it to fall for want of necessary reparations. 
 
 Whatever does a lasting damage to the freehold or inheritance 
 
 is waste. Tenant for life or term of years was not by the common 
 
 law responsible for waste, nor was waste punishable," observes 
 
 Blackstone, '\m any tenant, excepting guardian in chivaliy, tenant 
 
 in dower, and tenant by the curtesy. And the reason of the 
 
 diversity was, that the estate of these three tenants was created 
 
 by the act of the law itself, which therefore gave a remedy against 
 
 them ; but tenant for life, or for years, came in by the demise 
 
^^t."^'- 1-J WASTE BY LESSEES. 231 
 
 and lease of the owner of the fee, and thereforfe he might have 
 provided against the committing of waste hy his lessee : and if 
 he did not, it was his own default " (o). But, for the benefit 
 of reversioners, it was provided by the statutes of Marlbridge, 
 52 Hen. 3, b. 23, and of Gloucester, 6 Ed. 1; c. 5, that every man 
 from thenceforth should have a writ of waste in the chancery 
 against him that holdeth for term of life or years, or a woman 
 in dower. And for waste made in the time of wardship it shall 
 be done as is contained in the great charter, &c. Since the passing 
 of these statutes, theref&re, all tenants for life or term of years 
 have been liable in damages for waste, unless their leases have 
 been made to them without impeachment of waste. All tenants, 
 whatever their term or interest, are liable for commissive waste ; 
 but a mere tenant-at-will, or from year to year, is not responsible 
 for permissive waste (6). 
 
 Commissive and permissive waste. — Commissive, or, as it is more 
 frequently termed, wilful waste, consists, amongst other things, in 
 the doing by a tenant of some wilful iujury to the premises demised 
 to him, such as pulling down houses and buildings, prostrating 
 walls, removing landlord's fixtures, breaking windows, or tiles and 
 slates, and uncovering the roofs of houses. Permissive waste is 
 where the tenant remains a passive spectator of decay and ruin, 
 doing nothing to accelerate, and making no effort to retard the evil. 
 
 Permissive waste ly lessees for terms of years. — ^A tenant for 
 term of years is responsible for permissive as well as commissive 
 waste (c), but where he has not obliged himself by covenant to do 
 repairs, he is not bound to rebuild ; for if the subject of occupation 
 perishes from time and natural decay, the landlord is the person to 
 provide a new one, if he think fit {cl). A tenant for years must 
 not suffer the roof of a house to remain uncovered, so as to let the 
 timbers rot, and must use aU reasonable endeavours to keep the 
 buildings wiud and water-tight ; but he is not bound to repair the 
 principal timbers of the roof, nor to replace old materials with 
 new, except where the expense is of a trifling character, and the 
 mischief, if neglected and left unrepaired, would operate to the 
 lasting injury of the inheritance. If a roof is blown off by tempest, 
 he is not bound to put on a new roof, but if a few tiles only are 
 stripped off, he is bound to replace them, or adopt means to. keep 
 out the wet. The extent of the liability of a lessee, not holding 
 under a covenant or agreement to repair, for permitting buildings 
 demised to him to go to decay and ruin, will depend upon the age 
 and general state and condition of the buildings at the time he took 
 
 {a) 2 Bl. Com. ch. 18, s. 6. 24 Law J., Exch. 299. 
 
 (6) SarntU T. Maitland, 16 M. & W. {d) Bayley, J., Wm v. Metcdfe, 10 B, 
 
 257. Sedfern v. Smith, 1 Bing. 382. & 0. 314. 
 (c) YeUowhj y. Gmer, 11 Exch. 294 ; 
 
232 AVASTK, [CHAP. V. 
 
 possession of them, the nature and extent of the repairs required 
 for their preservation, and the duration of his own term and 
 interest in the property ; for a tenant-at-will, or tenant fi-om' year 
 to year, cannot be expected to do as much for the preservation of 
 the property as a tenant for a -long tenn of years. If a house is 
 burnt by negligence, this, as we shall presently see, is waste ; and 
 if sea-waUs and river-banks are destroyed from want of timely 
 reparation, this will be waste ; but if they receive the usual and 
 customary repairs, and are destroyed by a great tempest or a 
 violent inundation, the lessee is not responsible for waste if he 
 fails to rebuild them (e). 
 
 Commissive waste hy tenants for terms of years. — Whenever a 
 tenant or lessee makes material changes in the nature of the 
 premises demised to him, which have the effect of converting them 
 into something substantially different from what they were at the 
 time they were placed in his hands, he is guilty of commissive 
 waste, and is responsible in damages for infringing upon the 
 proprietary rights of the landlord. The tenant by the lease has 
 the use, not the dominion, of the property demised to him, and 
 cannot make permanent changes and alterations in the property 
 without the consent of the landlord, although such changes and 
 alterations may greatly enhance the value of it ; for the owner has 
 a right to have his houses and lands kept in an imaltered state, 
 surrounded by all their old features, landmarks, and associations (/). 
 Therefore an action is maintainable by the reversioner pending the 
 term agaiast the tenant for inclosing and cultivating waste land 
 included in the demise, and for continuing the grievance (g) ; also 
 for the pulling down of an old building, and the substitution in 
 lieu thereof of tenements of greater value Qi), and for removing a 
 partition-wall in a house and enlarging a chamber (i). 
 
 Where a lessee opened a new door in a house, whereby the 
 house was not in any respect weakened or injured, it was held 
 to be a question for the jury whether there was or was not any 
 injuiy to the rights of the reversioner (le). But, if there is any 
 substantial alteration in the form and arrangement of the house, 
 the house is no longer the same house, and there is an invasion of 
 the proprietary rights of the landlord or reversioner. It is no 
 answer to an action for the infringement of these rights to say that 
 the defendant might, before the expu-ation of the lease, restore the 
 premises to their former plight, and surrender them up to the 
 landlord in their original condition {T), 
 
 fe) 2 KoU. Abr. Waste (C.) (j) 2 Roll. Abr. 815, pi. 9. 
 
 (/) Smyth V. Ca/rter, 18 Beav. 78. (h) Yowng v. Spencer, 10 B. & C. 145. 
 
 (Sf) Provost, dc, of Queen's CoUege v. {I) Provost, ifcc., of Queen's College t. 
 
 SaUat, 14 East, 489. Mallett, 14 East, 489. 'Cole v. Forth, mfra. 
 
 (h) Cole T. Green, 1 Lev. 809. 
 
SECT. 1.] BY TEKMOKS, YEAllLY TENANTS, ETC, 233 
 
 A lessor may sue for commissive waste, although the lease 
 contains a covenant upon wMch the lessor might maintain an 
 action for the same wrong. It is no answer for the lessee to say 
 that an action of covenant may also be maintained against him in 
 respect of the same cause of action, for the lessor may have either 
 remedy (w). 
 
 The lessee of a water-mill, worked by a head of water penned 
 back under a prescriptive right to pen back water for the purpose 
 of working the mill, has no right to alter the height of the tumbling- 
 bay, or transpose or alter the old permanent water-marks, as it 
 tends to destroy the landlord's evidence of title to the head of water, 
 and goes to the destruction of the thing granted. The lessee of house- 
 property must not remove wainscots or floors, or pull down and 
 rebuild, or open new windows and doors, and change the form and 
 arrangement of the house, without the consent of the owner. He 
 cannot convert one species of edifice into another, such as a corn- 
 mill into a fulling-mill, or malt-mill, or a water-mill into a wind- 
 mill, though the conversion be to the pecimiary advantage of the 
 landlord, as well as to the benefit of the tenant («). He must not 
 fell timber-trees (except for the necessary repairs of a house he has 
 covenanted to repair), nor destroy spring-woods or young plants 
 destined to become trees ; but he may cut willows, maples, beeches 
 (see^os^, p. 235), and thorns, if they do not shelter a dwelling-house 
 or sustain a bank, or afford shelter to cattle, and the cutting of them 
 is not prejudicial to'the inheritance. He may also cut oaks and 
 ashes where they are usually cut as underwood, and are in due 
 course to grow up again from the stumps, and the cutting is 
 Avarranted by local custom and usage. He must not dig for gravel, 
 lime, clay, brick-earth, stone, or the like, except for the necessary 
 repair and improvement of the demised premises, in fulfilment of 
 the covenants of his lease. He must not remove virgin soil (o), nor 
 open quarries or mines of metal or coal; for the purpose of selling 
 the produce thereof; but he may work mines and quarries which 
 were open and in existence at the time of the demise, as they then 
 form part of the annual profits of the land. He must not convert 
 arable land into pasture, or pasture into arable land, or plough up a 
 warren, or stub up a wood to make it pasture, or divert the coui'ses 
 of streams, nor dry up ancient pools or fish-ponds, nor destroy 
 fences, nor put land under water, nor destroy the stock or "breed 
 of anything. He must not take all the fish out of a fish-pond, or 
 the doves from a dovecote, or the deer from a park, or the rabbits 
 and conies from a warren, or the game from preserves ; but he is 
 
 im) Kinhjside v. Thornton, 2 W. Bl. (n) Bac. Abr. (Waste), CoU t. Forth, 
 
 1111. Torriano t. Youtiff, 6 0. & P. 8. 1 Mod. 94; Co. Litt. 53a, 53b, 
 Marker v. Kmrick, 13 C, B. 198. (o) Higgm r. Mm-timr, 6 C. & P, 616. 
 
234 WASTE. [chap v. 
 
 entitled to the reasonable use and enjoyment of them, leaving 
 as many in store for the landlord when he goes out as he found 
 when he was intrusted with the possession and use of the pro- 
 perty (p). 
 
 Waste may be committed by removing glass annexed to win- 
 dows, for it is parcel of the house ; and although the lessee himself, 
 at his own cost, put the glass in the windows, yet, being once parcel 
 of the house, he cannot take it away or waste it. Wainscot also, 
 whether annexed to the house by the lessor or the lessee, is parcel 
 of the house, and cannot be rempved, unless it is purely of an orna- 
 mental character {post, p. 244) ; and there is no difference in law if 
 it be fastened by great naUs, or little nails, or by screws or irons 
 put through the posts or walls {q), for every chattel affixed to the 
 soil of another becomes a part of the soil, and belongs to the owner 
 of the land, unless it is shown to have been affixed there in the 
 necessary enjoyment of an easement by the person entitled to the 
 easement, in which case it wiU. belong to the latter, and not to the 
 owner of the soil (t). 
 
 Waste hy tenant from year to year. — Tenant from year tb year is 
 not responsible for permissive waste. Where an action on the case 
 was brought by a lessor against a lessee holding from year to year, 
 for suffering a house demised to him to go to ruin for want of 
 repairs to the roof and windows, it was held that such an action 
 was not maintainable. "There is no doubt," observes Mansfield, C.J., 
 "but that an action on the case may be maintained for wilful waste; 
 but, at common law, if any part of the premises are suffered to be 
 dilapidated, it amounts to permissive waste ; and if this action be 
 maintainable against tenant from year to year, such an action 
 might be brought against' a tenant-at-will who omitted to repair a 
 broken window. I think this action is an innovation, and, I am 
 not disposed to encourage it " (s). But every tenant from year to 
 year is bound to take all due and reasonable care of the premises 
 demised to him, and if windows are broken by the wind or hail, 
 and the rain gets in, he is liable for the non-repair of them, if the 
 consequences of his neglect would be damage to the building from 
 the rain. 
 
 Tenant-at-will. — " If a house be leased to hold at wiU, the lessee 
 is not bound to sustain or repair the house, as tenant for term of 
 years is tied. But if tenant-at-wiH commit voluntary waste, as in 
 pulling down of houses or felling trees,, the lessor shall have an 
 
 (p) D'Amj {Ld.)Y.Askmtli,'B.o\i.1Zi. (r) lancaiter t. Eve, 5 C. B., N. S. 
 
 Phillips V. Smith, 14 M. & W. 593 ; Bao. 717. 
 Abr. (Waste), Litt. s. 71. (s) Gibson v. WeUs, 1 B. & P., K E. 
 
 (g) MerlukendeiCa case, i Co. 63b, 290. Serne v. Beribow, i Taunt. 764. 
 
 Wilde r. Waters, 16 0. B. 637. Martin t. OiUicm, 7 Ad. & E. 543. 
 
SECT. 1.] BY TENANT FOE LIFE. 235 
 
 action of trespass against him," for this amounts to a determination 
 of the willj and the tenant so acting is a mere trespasser (t). 
 
 Tenant for life. — Tenant for life not made unimpeachable for 
 waste by the person creating the tenancy is, by the statute of 
 Gloucester {ante, p. 231), put upon the same footing, with regard to 
 waste, as tenant for a term of years, and is responsible for permis- 
 sive as weU as commissive waste, so that if he faUs to keep up and 
 maintain buildings, walls, and fences, he will be liable to an action 
 for dilapidations. If tlie roofs of houses are uncovered by the wind, 
 he must, in convenient time, repair them; but if buildings are 
 blown down by a violent tempest, or destroyed by lightning, he is 
 not bound to rebuild. And if a house was uncovered and ruinous 
 when he came into possession of' it, it is then no waste to suffer it 
 to fall down, as he is not bound to keep up and maintain a mere 
 ruin {u). He is entitled to all such trees felled by the wind as he 
 would have been entitled himself to fell, and also to all proper 
 thinnings of plantations, &c., as well as to all coppices and osier 
 beds cut in the nature of crops, but it seems to be doubted whether 
 he has a right to cut poles {x). He may properly work an open 
 mine, i.e., a mine which has been worked within a few years of his 
 coming into possession, but he cannot open a new mine and search 
 for and carry away minerals {y). 
 
 Waste in trees and woods may be committed in Buckingham- 
 shire by the cutting of beeches, because there, by the custom of the 
 coimtry, they are the best timber ; and the same may be said of 
 birches in Berkshire (z). If the tenant suffer the young germins 
 to be destroyed, either by stubbing them up, or suffering a wood to 
 be open, by which beasts enter and eat them off, it will be waste, 
 though they grow up again, for after such destruction they will 
 never be great trees, but shrubs. But the cutting down of season- 
 able underwood, of hazel, willows, maple, or oak, in a husbandlike 
 manner, at the usual seasons, and of the usual growth, in accord- 
 ance with the custom of the country, is not, as we have seen, waste 
 {ante, p. 233) ; nor, if it is the custom to cut ashes from ten years 
 to ten years, is it waste so to cut them ; but it is, in general, waste 
 to cut down young trees of that growth fit for great timber (a). But 
 the tenant is, in general, entitled to take sufficient wood for neces- 
 sary repairs to buildings and fences, to enable him to keep them 
 up in the same state as he found them, but not for the purpose of 
 making new fences, &c., where none before existed (6). 
 
 m Litt. s. 71 ; Co. Litt. 57a. Hai-nett {y) Bcujot y. Bagot, 33 Law J., Ch. 116. 
 
 V. Maitland, 16 M. & W. 262. (2) ^«6™2( r. Fuher 10 E^t, 446. 
 
 M 2 Eoll. Abr. Waste (C). €0. (a) 2 IWl. Abr. 815, 817. Gage v. 
 
 ■lAk! bI Bac. Abr. (Waste). ^ ^ M Godb. 210 pi. 298 ; 1 Inst. 53a 
 
 (x) Batemam, v. Houmn, 32 Law J,, (b) 1 Inst. 53b. Foley v. Wilson, 11 
 
 Ch. 6. ^*^*' ^^- 
 
236 AVASTE. [chap. v. 
 
 WhetP. tmher is decaying from age, and requires cutting to 
 prevent its deterioration, or its injuring other timber, the Court of 
 Chancery^vill order the timber to be cut and sold, and the proceeds 
 of the sale invested, and the interest thereof paid to the tenant for 
 life, and the capital paid over after his death to the person entitled 
 to the inheritance, unless the timber, though decaying, is for the 
 defence and shelter, or ornament, of a mansion-house (c). But it is 
 not sufficient, it seems, that the timber is merely ripe ; it must be 
 for the benefit of the remainderman that it be cut, otherwise no 
 order will be tnade {d). Where timber fit to be cut is felled by 
 tenant for life for the benefit of the estate, the person next in 
 r&mainder may elect to treat the timber as lawfully cut, and require 
 the value of it to be invested in land, and held as part of the estate, 
 the tenant for life taking the interest of the fund, and the first 
 owner of the inheritance, or tenant for life without impeachment 
 for waste, taking the capital (e). If the tenant for life treats the 
 money produced by the sale of timber as his own, that is a wrongful 
 act, and the Statute of Limitations will run from the date of its 
 conversion, and not from the death of the tenant for life (/). 
 
 WasU hy taming and reclaiming deer. — In the old books, the 
 feeding of deer is declared to be waste where the deer have always 
 been kept on the estate in a wild state, for wild deer go with the 
 land to the heir-at-law, whereas, if they are fed and reclaimed, they 
 cease to be animals ferw natwrm, and become personal property, and 
 are severed from the freehold, and go to the executor; and it is this 
 alteration in the nature of the property which makes the taming of 
 the wild animal waste. But wild deer which have never been fed 
 are seldom to be met with in England at the present day {g). 
 
 Equitahle ivaste. — Where tenant for life Iwlds without impeach- 
 ment for waste he may nevertheless be restrained from committing 
 what is termed equitable waste, which consists in doing acts of 
 destructive injury to the property, to the detriment of the persons 
 entitled in remainder. The term "without impeachment of waste," 
 cohtained in a deed or will creating a life estate in land, does not 
 enable the life tenant to deal with the property as if he was the 
 absolute owner thereof in fee simple. He may cut down timber 
 ■ and growing trees fit for timber (7i), and convert them to his own 
 use (*), and open new mines, and work them for his own benefit^ 
 but he cannot dig and carry off brick-earth, and destroy a field, to 
 
 (c) -Btwp'es V. Lamb, 16 Ves. 182. Be- Law J., Ch. 68. . Bagot t. Bagot, mpfcu 
 toich t. WkiljfiM, 3 P. Wms, 267. MM (/) Seaffl-am v. KniffJd, L. K., 3 Eq. 
 V. Broim, 27 Beav. 90. Ca. 398 j S. 0. 2 Ch. App. 628. 
 
 (d) Seagram r. Knight, I.. K., 2. Ch. (g) Ford\. Tynte, 81 Law J., Ch. 1??. 
 App. 628. (7i) Smyihe t. SmytU, 2 Swanst. 251i 
 
 . (e) PUUips V. Barlow, 14 Sim. 263. Gordon v. Woodford, 29 Law J., Ch. 222. 
 Gmt T. Harrison, Johns. & H. 519 ; 29 (i) Fyne v. Dor, 1 T. E. 56. 
 
SECT, 1,] EQUITABLE— EY TRUSTEES, ETC. 237 
 
 the prejudice of the inheritance (j) ; and he will be restrained 
 from committing wanton and malicious waste, such as damaging 
 and destroying buildings, pulling down ancient boundary walls and 
 fences (k), and cutting down thriving wood unfit for timber, and 
 the felling of which would be destructive to the property (l) ; also 
 from cutting down trees which were either planted or left standing 
 for the shelter or ornament of a mansion-house (m). But he is not 
 responsible, even in equity, although he allows a mansion-house 
 and buildings to go to wreck and ruin for want of timely repairs to 
 the roofs and windows (n), nor if he puUs down a ruinous structure, 
 aud uses up the materials in rebuilding it (o). 
 
 Tenant in fee simple subject to an executory devise over, will also 
 be restrained from committing that sort of destructive injury to 
 property which is called equitable or malicious waste, but he is 
 entitled to commit ordinary waste, such as cutting timber, not being 
 ornamental timber, unless he is restrained by the will creating his 
 estate from cutting down timber of any kind (p). 
 
 Lessee for term of years without impeachment of waste may be 
 restrained at the instance of the reversioner from digging and 
 carrying away brick-earth, as it destroys the field and causes last- 
 ing injury to the inheritance (g'). 
 
 The loords "without impeachment ofiuaste," as applied to trustees 
 of a term for special purposes, has a very different sense from the 
 same words annexed to a tenancy for life. The Court of Chancery 
 wHl not permit trustees so holding to execute their trust by cutting 
 down timber ; but, at common law, trustees without impeachment 
 of waste carmot be made responsible for cutting timber (r). 
 
 Waste by trustees. — The Court of Chancery will grant an injunc- 
 tion to prevent trustees from cutting down ornamental timber ; 
 and, if trees are felled by their orders, without the consent of the 
 persons interested in the property, the trustees are bound to show 
 that the cutting of them was absolutely necessary (s). 
 
 Persons having only an equitable interest in land. — ^When the 
 legal estate in land is vested in trustees, and the equitable tenant 
 for life is in possession of the land, it is the duty of the trustees to 
 
 ij) London (Bishop of} v. Web, 1 P. ^ (») Powys v. Slagrave, 4 DeG-. M. & 
 
 Wmg 528 ^- ^^8- Lamdowne T. Lansdowne, 1 Jac. 
 
 (i) 'Astdn y. Astm, 1 Ves. sen. 265. & Walk. 522, overruUng ParterkU y. 
 
 Vane v. Loi-d Bm-nwrd, 2 Vern. 739 ; Co. -Po^if, 2 Atk. 883. „ ,,„ p,„ , ,. 
 
 Litt. 220a. Duhe of Leeds t. Ld. Am- (o) Morns v. Morns, 3 De Gex & J. 
 
 herst, 14 Sim. 357. „ 323. oi t ™ T ri, 
 
 (0 Chamberlayne T. J)ummr. 1 Bro. (p) Blahe ^- ff«. f ..^fj^ \^]; 
 
 Ch C 160- 3* 548 889. Twner v.Wnght, 29 ib. i70; Johns. 
 
 Im) Mickethwadte v. MicUethwaite, 26 740 ; 2 De G. F. & J. 234. 
 
 Law J Ch 721. WeUesley V. WeUesley, (q) BisJwp of London \. Web, supra. 
 
 ti Sim'' 497 Surges t. Lanib, 16 Ves. (r) Marquis of Downsliire v. Lady 
 
 174. See£«66v. r*e!-to,L.K„10Eq. Sandys, 6 \&i.lU. ,.,_ ^„.„ 
 
 Q.^ ^gg («) Oamphdl v. AUgood, 17 Beav. 627. 
 
238 , WASTE, [chap. V. 
 
 exercise their legal powers for the prevention of waste {€), but the 
 Court of Chancery never holds trustees responsible for suffering 
 permissive waste for want of repairs. " I can foresee," observes 
 Wood, V.-C, " no end to the demand which would be made upon 
 ■trustees by remainder-men coming into possession of the trust 
 property who might not think it sufficiently repaired, if they might 
 say to the trustees, ' It was your duty to look after the tenant 
 for life ; you had the legal estate, and it was your business to 
 see that he was doing all necessary repairs ; and, as you have not 
 done so, we shaU fix you with the liability ' " (u). 
 
 The Court of Chancery does not in general interfere to prevent 
 permissive waste; it will not compel tenant for life to repair, 
 but an account for dilapidations will be decreed against an 
 incumbent (x). 
 
 Ecclesiastical dilapidations. — -By the common law, the in- 
 cumbent of a living is bound not only to repair the buildings 
 belonging to his benefice, but also to restore and rebuild them 
 when necessary, for the revenues of the benefice are given as a 
 provision not merely for the clergyman himself personally, but for 
 keeping up a suitable residence for the incumbent, and also for 
 the maintenance of the chancel ; and if by natural decay, which, 
 notwithstanding continual repair, must at last happen, the buildings 
 perish, these revenues form the only fund for obtaining the means 
 of replacing them. But the liability of the incumbent to repair 
 and rebuild extends only to that which is useful ; he is not bound 
 to restore or replace anything in the nature of ornament, such as 
 whitewashing, papering, and painting, except where painting is 
 necessary to preserve exposed timbers from decay. His liability, 
 therefore, in respect of the preservation and maintenance of 
 buildings, extends further than that of a tenant for term of years, . 
 who is not bound, as we have seen, to rebuild where he does not 
 hold under a covenant to repair (y). 
 
 His power and dominion over the property, also, extends further 
 than that of tenant for a term of years ; for an action for dilapi- 
 dations cannot be maintained against him for pulling down old 
 buildings, and erecting new structures, provided they are found by 
 a jury to be more convenient and beneficial to the living, and it 
 appears that the evidence of title is in nowise impaired; and no 
 increased burthen is imposed upon the property (z). 
 
 As regards the cultivation and management of the glebe land of 
 the living, that which would be waste when committed by tenant 
 
 (() Pugh r. VaugJmn, 12 Beav. 517. (y) Wise t. Metcalfe, 10 B. & C 313 
 
 (m) Poviys V. Blagra/ve, Kay, 506 ; 4 De See ante, p. 231. 
 
 G M, & G.. 448. (2) Hunasy v. Hmsett, 13 Q. B. 572. 
 (x) Powyi T. Blagrave, Kay, 499. 
 
SECT. l.J ECCLESIASTICAL DILAPIDATIONS. 239 
 
 for life, or lessee for term of years, will not be so considered in the 
 case of the incumbent of a living ; for if you apply to a parson's glebe 
 the same law that prevails between lessor and lessee, and tenant 
 for life and reversioner, the course of husbandry and cultivation 
 must remain the same for all time. What is once arable or pasture 
 must always continue so; and no rector or vicar could efPect 
 agricultu.ral improvements by employing any part of his glebe in 
 any other manner than he found it employed. The court, there- 
 fore, wUl not restrain an incumbeflt from ploughing up meadow 
 land when it is shown that a great improvement would be thereby 
 effected, and the permanent value of the rectory, in a pecuniary 
 point of view, be thereby increased (a). 
 
 ^ rector may cut down timber for the repairs of the parsonage- 
 house or the chancel, but not for any common purpose. If it is 
 the custom of the country he may cut down underwood for 
 any purpose, but if he grubs it up, except in furtherance of a 
 manifest improvement, ■ it is waste. He may cut down timber, 
 likewise, for repairing any old pews that belong to the rectory ; 
 and he is also entitled to botes for repairing barns and outhouses 
 belonging to the parsonage, but he cannot cut down timber except 
 in these instances (6) ; nor can he open mines without the consent 
 of the patron and ordinary (c) ; but he may work mines which were 
 open and in existence at the time he came into possession of the , 
 property, and formed part of the annual profits thereof. No action 
 at law is maintainable against his representatives forgetting gravel, 
 though it seems he might be prolubited from such getting by a 
 court of equity or common law, or punished by the ecclesiastical 
 court (d). 
 
 The law, however, of ecclesiastical dilapidations has been 
 placed on an entirely new footing, so far as buildings are concerned, 
 by the " Ecclesiastical Dilapidations Act, 1871 " (34 & 35 Vict, 
 c. 43), which provides (s. 58), that no sum shall be recoverable for 
 dilapidations in respect of any benefice becoming vacant after 
 the commencement of the Act, and to which the Act shall be 
 applicable (i.e., semble, in no case but that of wilful waste), unless 
 the claim for such sum be founded on an order made under 
 the provisions of the Act. 
 
 The Act accordingly provides for the appointment of diocesan 
 surveyors (s. 8), on whose recommendation all repairs to buildings, 
 which the incumbent would be bound to repair, are to be made, 
 and on the completion of such repairs, the liability of the 
 
 (a) Duke of St. Albans t. SUpwith. 8 8 Eq. Ca. 417 ; 38 L J- Ch. 617. 
 Beav 354 (") Holden v. Weekes, 1 Jonns. & Hem. 
 
 (J)' Slr'achv v. Fmneis, 2 . Atk. 217. 278 ; 30 Law J., Ch. 35. 
 
 Duhe of Mm-lborough v. St. John, 5 De „ («) ^»» v. Adcoeh, L. R., 3 C. P. 655. 
 
 Gex&Sm 179. /SoirerBi/ v. Pnor, L, E. See ilfariui v. iJoe, yosf, 242. 
 
240 WASTE. [CHAP. V, 
 
 incumbent or his personal representatives to any claim for 
 dilapidations wiU cease for a period of five years from the date of 
 the certificate by the surveyor of the due execution of the prescribed 
 works, except in cases of wilful waste, or damage by fire, against 
 which the incumbent shall not have insured (ss. 46, 47). Similar 
 provisions are made in respect of the residences, &c., of archbishops, 
 bishops, deans, canons, &c., on their employment, for the purpose 
 of inspection and repair, of a surveyor approved by the Ecclesiastical 
 Commissioners (ss. 25 — 8). The duty of executing the prescribed 
 repairs, however, stiU rests on the incumbent (s. 19), who may 
 borrow from the Governors of Queen Anne's Bounty the whole or 
 any part of the sum required, and charge the same upon the 
 benefice (s. 17). The incumbent may, if he prefers it, execute all 
 necessary repairs himself, without the intervention of the surveyor 
 (s. 22). But he would not, it seems, in such a case be entitled to 
 the exemptioii from liability mentioned above ; and provision is 
 made by ss. 23 and 45, for the execution of the repairs, if the 
 incumbent refuses or neglects to execute them. 
 
 It will be seen from the above provisions that the Act con- 
 templates, in effect, a quinquennial inspection and repair of all 
 ecclesiastical buildings, which the incumbent would be bound to 
 repair. But should this not be done, it further provides that on 
 the vacancy of any benefice, the bishop shall direct the surveyor to 
 report upon the dilapidations, and, after hearing the objections to 
 such report, if any, shall make a final order stating the repairs and 
 their cost, for which the late, incumbent or his personal represen- 
 tatives are liable, which sum shall be a debt due from the late 
 incumbent or his personal representatives to the new incumbent, ^ 
 and recoverable as such at law or in equity (ss. 29 — 36). 
 
 Waste by copyholders. — By the general custom of copyholds, if 
 a copyholder conmiits waste, it is a forfeiture of his estate (e), and, 
 as such penal consequences are attached to this description of tort, 
 the law requires clear proof of some invasion on the part of the 
 tenant of the lord's property, or some act or neglect which tends 
 materially to deteriorate the tenement, or to destroy the evidence of 
 its identity (/). The pulling down of an old ruinous barn by a 
 copyholder, without the license of the lord, is, in strictness of law, 
 waste, and works a forfeiture of the copyhold estate ; but if no 
 real injury has thereby been done to the inheritance, the penal 
 consequences of waste do not attach, and there is no authority for 
 saying that any act can be waste, so as to work a forfeiture, which 
 is not injurious to the inheritance, either by diminishing the value 
 
 (e) See ante, p. 104, Salisbury v. Glad- (f) Burton's Eeal Property, 411 ; 7th 
 
 stone, ed. p. 1335. 
 
SECT. 1.] KEMOVAL OF FIXTUKES. 241 
 
 of the estate, or by increasing the burthen upon it, or by impairing 
 the evidence of title (g). 
 
 Tenants in common. — If one tenant in common misuses property 
 which he holds in common with another, he is answerable to the 
 other in an action for misfeazance ; but he is not responsible in an 
 action for waste for felling timber trees fit to be cut, or for opening 
 mines, or talcing any of the fair profits of the common property ; 
 nor is he liable in trespass for cutting grass (7i) ; but the other 
 tenant in common wiU be entitled to recover a moiety of the value 
 of whatever is severed from the freehold and converted into a 
 chattel (*). 
 
 Waste hy the removal of fixtures. — "Questions respecting the 
 right to what are ordinarily called fixtures," observes Lord 
 Ellenborough, " principally arise between three classes of persons. 
 Pirst, between different descriptions of representatives of the same 
 owner of the inheritance, viz., between his heir and executor. In 
 this first case, i.e., between heir and executor, the rule as to severance 
 obtains with the most rigour in favour of the inheritance, and 
 against the right to disannex therefrom, and to consider as a personal 
 chattel, anything which has been afiSxed thereto (y). Secondly, 
 between the executors of tenant for life or in tail, and the 
 remainderman or reversioner ; in which case the right to fixtures 
 is considered more favourably for executors than in the preceding 
 case between heir and executor. The third case, and that in which 
 the greatest latitude and indulgence have always been allowed in 
 favour of the claim of severance, as against the claim in respect 
 of freehold or inheritance, is the case between landlord and 
 tenant " (Jc). 
 
 As between heir and executor, the rule is, that where a lessee 
 having annexed anything to the freehold during his term, afterwards 
 takes it away, it is waste. But this rule, at a very early period, 
 had several exceptions engrafted upon it in favour of trade, and of 
 those vessels and utensils which are immediately subservient to the 
 purposes of trade. And it was laid down that if a lessee for years 
 erect a furnace for his advantage, or a dyer make his vats or vessels 
 to occupy his occupation during his term, he may remove them ; 
 but if he suffer them to be fixed to the earth after the term, then 
 they belong to the lessor. And so of a baker. And it is not waste 
 to remove such things within the term (J). And as between the 
 executor and the heir-at-law, it has since heen held that where 
 a fixed instrument, engine or utensil, or a building covering 
 
 (o) Grubh V. Marl of Burlington, 5 B. (i) Mwrtyn r. Knowles, 8 T. R. 14.'). 
 
 & Ad. 517. U) Walmiley v. Milne, 7 C. B., N. S. 
 
 (k) ' Jacobs V. Seward, 38 L. J., C. P. 115 ; 29 Law J., C. P. 97. 
 252 ; li. E., 4 C. P. 328. See Bailerj r. (h) Mlwes v. Mom, 3 East, 53. 
 
 Uobion, post, p. 260. W I^- 20 Hen. 7, 13a. b. 
 
242 WASTE. [CHAP. V. 
 
 macMnery, is accessory to matter of a personal nature, then it 
 shall itself be considered personalty, and belong to the executor, 
 such as a fire engine accessory to the carrying on the trade of 
 getting and vending coals ; or a brew-house furnace and coppers, 
 or a cider-mill, or varnish-house; but salt-pans connected with 
 salt-springs, and erected for the benefit of the inheritance, and 
 barns and agricultural buHdings, erected for farming purposes, are 
 not by the common law removable by executors, but belong to the 
 heir (m). 
 
 The cases regarding the right of removal of fixtures, as between 
 the executor of a tenant for life and the remainderman, wUl be 
 found to turn each on its own peculiar circumstances ; the character 
 of the fixture, the' use made of it, the mode of its attachment to the 
 freehold, the facility of severance, the injury to the freehold by 
 severance, and, in regard to an ecclesiastical benefice, the character 
 and object of the building to which the chattel is attached, and 
 the purpose for which it was attached. A building erected by an 
 incumbent, which is in itself mere matter of luxury and ornament, 
 which it would be a burthen to the benefice to keep up, and which 
 the incumbent might have pulled down if he thought fit, and which 
 may be detached without injury to the freehold, passes in general 
 as part of the personal estate to the executors of the deceased 
 incumbent, and may be taken away by them {%). 
 
 The rigJit to remove fixtures, without incurring liability for waste, 
 is considered at length in many learned treatises (o), and the 
 remainder of the present chapter wUl be confined to the considera- 
 tion of fixtures that have been, held removable, or irremovable, as 
 between landlord and tenant. 
 
 landlord's fiadures. — The term "landlord's fixtures " means such 
 things as the landlord chooses to annex to the freehold and demise 
 with it, and which, of course, the tenant has no right to remove, 
 and must restore at the end of the term : such as grates, marble 
 chimney-pieces, locks, keys, bars and bolts, steam-engines and 
 boilers, hay-cutters, malt-miUs, corn-crushers, grinding-stones, 
 &c. (j>). 
 
 Tenant's fixtures. — The rule formerly was, that where a lessee, 
 having annexed a personal chattel to the freehold during his term, 
 afterwards took it away, it was waste. In the progress of time this 
 rule was relaxed, and many exceptions have been grafted upon it. 
 One has been infavour of ornament, as ornamental chimney-pieces, 
 pier-glasses, hangings, wainscot fixed only by screws, and the like. 
 
 (m) lb. 2 Smith's L. C. 153, 6th edit. tures. And see D'ByncouH v. Gregoni, 
 (n) Martin v. Hoe, 7 Ell & Bl. 248. L. K,, 3 Eq. Ca. 382. 
 
 (o) Amos on Fijctures ; Grady on Fij. (p) Walmsley v. Milne, 7 C, B„ N. S, 
 
 115; 29 I;»Tir J„ 0, P. 97, 
 
SECT. 1.] TEADE AND TENANT'S FIXTURES. 243 
 
 Of all these, it is to be observed that they are exceptions only (q). 
 Other exceptions have been grafted upon the rule in favour of the 
 enjoyment of the occupation, and in favour of trade, and vessels, 
 machinery, and utensUs, which are immediately subservient to the 
 purposes of trade. If a landlord lets a house unfurnished, without 
 the conveniences of grates or gas-fittings, and the tenant, for the 
 enjoyment of his occupation, fixes them in the house, he may, 
 unless he has contracted to leave them behind, remove them during 
 his term. Whether a particular fixed chattel belongs to the landlord 
 or the tenant, must in some instances depend upon what the con- 
 tracting parties propose to be the subject of the demise (r). PiUars 
 of brick and mortar built on the floor of a dairy by a tenant to 
 sustain milk-pans have, however, been held to be part of the 
 freehold (s) ; also barns and beast-houses, waggon-houses, fuel- 
 houses, pigeon-houses, carpenters' shops for mending waggons and 
 carts, and agricultural buildings employed and used upon the farm, 
 and let into the ground, and not merely placed on the surface 
 thereof, or on a brick or stone floor (t) ; also conservatories, hot- 
 houses, or green-houses, erected on a brick or stone foundation, and 
 attached thereto by permanent fastenings ; so that if the tenant 
 removes them after he has put them up he is guilty of waste (u). 
 But if the tenant raises and constructs foundations of a permanent 
 character for the receptio.n of a superstructure of wood, such as a 
 windmiU, a pump, a Dutch barn or granary, a pigeon or fowl- 
 house, or a conservatory, and the superstructure merely rests on 
 this foundation, or is attached thereto by screws or movable pins 
 or bolts, so as to be removable at pleasure without material or 
 permanent injury to the freehold, the foundation belongs to the 
 landlord, as part and parcel of the land, and the movable structure 
 placed on such foundation by the tenant continues the property of 
 the latter, and may be carried away by him at the expiration of his 
 lease (x). A door which maybe lifted from its hinges, and a sliding 
 fender used to prevent the escape of water from a mill-stream, does 
 not necessarily become part of the freehold (y) ; nor a mooring-pile, 
 driven into land for the accommodation of the navigation of a canal, 
 or river (z). But locks, keys, and bars belong to the landlord ; and so 
 does a shutter and sliding bolt, put up for the security of the premises. 
 
 (q)Suc}clandv.ButterJkJ,d,i1>loore,U7. Sess. Gas. 502. Sleddon v. Cruihdianh, 
 
 (r) Elliott V. Bishop, 10 Bxch. 496 ; 11 16 M. & W. 71 ; 16 Law J., Eioh. 61. 
 lb. 113. Swrmer t. Bromilow, 34 L. J., («) Oryriies t. Bov)eren, 4 M. & P. 143; 
 
 Q j5 J3Q 6 Bing. 437. Rex. v. Otley, 1 B. & Ad. 
 
 '(s) Leach r. Thomas, 7 0. & P. 327. 161, Wamshrough v. Maton, 4 Ad & E. 
 
 (t) Elwes T. Maw, 3 East, 38 ; 2 Smith's 884. Davis y Jones, 2 B & Aid. 165. 
 
 L. C. 153 6tli edit. Wood v. ITewett Bex t. Londovtlwrpe, 6 T. R. 377. Wdt- 
 
 8 B 913' shea/r v. CottreU, 22 Law J., Q. B. 181. 
 
 (m) Buchiand v. ButterfieU, 4 Moore, (y) Wood v. Hewitt, 15 Law J., Q. B. 
 
 440 : 2 B. & B. 64. Jenkins v. Geihvng, 2i1. 
 
 2 Johns. & n, 520, Sym v, ffamy, 24 Sg, (z) Lmmkr v. Mve, 6 C B,, N. S. 726 
 
 B 2 
 
244 WASTE. [CHAP. V. 
 
 J^ffricultural tenant's fixtures made removable hy statute. — By 
 14 & 15 Vict. c. 25, s. 3, it is enacted that if any tenant shall 
 with the consent in writing of the landlord, at his own cost and 
 expense, erect any building, engine, or machinery, for the purposes 
 of trade or agriculture, such buildings shall be the property of 
 the tenant, and shall be removable by him, one month's previous 
 notice in writing being given of his intention, and the landlord 
 or his agent being afforded an opportunity of purchasing the thing 
 proposed to be removed, as therein mentioned. 
 
 If a tenant receives from his landlord timber for the purpose of 
 erecting a shed, and uses the timber in the construction of it, he 
 has no right to pull down the building and remove the timber, 
 although he has added materials of his own, and confounded them, 
 in the erection, with those furnished by the landlord (a). 
 
 Ornamental fixtures. — The ornamental fixtures now held sever- 
 able and removable by the tenant are, chilnney-glasses, pier-glasses, 
 ornamental chimney-pieces, and stoves, tapestry and hangings nailed 
 to the wall, in lieu of ornamental paper or panels (J), and ornamental 
 cornices capable of being detached without injury to the building(c). 
 Domestic and trade fixtures. — Amongst the various domestic and 
 trade-fixtures held to be removable by the tenant are gas-pipes and 
 gas-fittings, and water-pipes attached to buildings by metal bands 
 and nails, grates, ranges, ovens, coppers, -bells, blinds, fixed tables,, 
 water-butts, cupboards, &c. (d), soap-boilers' furnaces, fat-vats, 
 coppers, dyeing and brewing vessels, cider-mills,' baking-ovens, 
 steam-engines, and salt-pans («) ; also machinery, engines, vats, 
 plant and utensils used in trade, however bulky or complex they 
 may be in their construction. The tenant may take them to pieces, 
 and remove them, and put them together again ia the same form 
 in some other place. And where a shed or building is a mere 
 accessory to a trade fixture, such as a shed, or any temporary 
 buildurg, erected merely for the purpose of covering and protecting 
 a steam engine, or machinery or trade utensils, from the effect of 
 the weather, it may be removable, together with the trade-fixture 
 to which it belonged, on the ground that "omne accessorium 
 sequitur suum principale." But a building is not removable merely 
 because it has been erected for manufacturing or trading purposes, 
 or for the purpose of covering and protecting machinery. If the 
 building is of a substantial character, standing on brick or stone 
 foundations let into the soil, and is constructed so as not to be 
 removable without the entire destruction of the fabric, it cannot 
 
 (a) ;SmUv.iJendc?-,27Law J.,Exch.8S. (e) 42 Ed. 3, fol. 6, pi. 19 ; 20 Hen. 7, 
 
 (5) Beck T. Below, 1 P. Wms. 94. fol. 13, pi. 24. PooU'i case. 1 Salk. 368. 
 
 (c) Avery t. Cheslyn, 3 Ad. & E. 75. Lawtm r. Lawton, 3 Atk. 13. Pentcn T. 
 
 (d) Wail V. Hinds, i Gray's Amer. Eep. RohaH, 2 East, 90. 
 272. EUiott V. Bishop, ante, p. 243. 
 
SECT. l.J TRADE AND TENANT'S FIXTURES. 245 
 
 be disannexed from the freehold and taken away, although it may- 
 be built over a steam-engine, and may contain nothing but steam- 
 machinery, spinning-jennies, drums and wheels, all of which may 
 be removable, and to all of which it may in a certain sense be 
 accessory (/). 
 
 Fixtures removable hy local custom and usage. — Things annexed 
 to the freehold are sometimes held removable in accordance with 
 local custom and usage in particular districts, such as barns and 
 granaries erected on stone pillars, or on pattens, or blocks of 
 timber {g). And if the pillars or pattens merely rest on the ground, 
 and are not attached to foundations sinking into the soil, they are 
 removable without any custom (A). 
 
 Ahandonment of the right to disannex and remove ornamental and 
 trade-fixtures. — If the tenant has entered into an express covenant 
 to yield up, at the expiration of his term, " all erections and 
 buildings that may be erected," or " all improvements that may be 
 made," upon the demised premises, he cannot afterwards remove trade 
 erections or buildings, or trade or ornamental or domestic fixtures (i). 
 A covenant in a lease to yield up the demised premises to the lessor 
 at the expiration of the lease, together with all fixtures thereunto 
 belonging, is confined to fixtures which belonged to the demised pre- 
 mises at the time of the execution of the lease, and does not extend to 
 fixtures which were not then in existence ; but a covenant to yield 
 up fixtures belonging, or that may belong, to the demised premises, 
 extends to fixtures that are afterwards put up by the tenant (k). 
 
 Inability of the tenant to remove fixtures after the expiration of 
 his term. — Whenever an outgoing tenant is possessed of .fixtures 
 which he has a right to remove, he must exercise such right prior 
 to the determination of his tenancy; he cannot, after a formal 
 disclaimer of the title of his landlord, or after he has once quitted 
 the demised premises and given up the key to the landlord, re-enter 
 for' the purpose of severing and removing fixtures. "After the 
 term, they become a gift in law to him in reversion, and are not 
 removable," unless the tenant, after the expiration of the term, has 
 remained in possession, with the sufferance and permission of the 
 landlord, and actually severs them and removes them during the 
 continuance of his lawful possession, after the expiration of the 
 term. If he holds over wrongfully, he loses his right to sever and 
 
 (/) mUeliettd Y. Bennett, 27 Law J., 2 M. & Sc. 25 ; 9 Bing. 24. West r. 
 
 Cli 474 Blakeway, 3 So. N. E. 218. EUiott v. 
 
 (a) ll'vin. Abr. 154. Executoes, U. Bisliop,anU,y>. 243. See also Dumergue 
 
 pi. 74. CuUmg r. Tuffnell, Bull. N. P. 34. v. Sumsey, 33 L J-, ^^ch 88. Sumner 
 
 (h) 2 Smith's L. C. 6th ed. Notes to v. Srom^Um, 34 »6. Q- B. 130. 
 
 Elwes V Maw W Hitchman v. Walton, 4 M. & W. 
 
 (i) Naylor\. CoUinge, 1 Taunt. 19. 414. Metrop. Co. Ins. Soc.Y. Brown, i^ 
 
 Thresher v. £. L. Water Co., 2 B. & C. Law J., Ch. S81. 
 608 ; 4 D. & R. 62. MaHyr v. Bradley, 
 
246 WASTE. [CHAP. V. 
 
 remove his fixtures ; and if he quits possession, and the tenancy 
 is determined, his right to his fixtures is extinguished, and they 
 become the property of the reversioner ©. If the lease becomes 
 forfeited, and the tenant, whilst he continues in possession sifter the 
 forfeiture, and before judgment in ejectment has been obtained 
 against him, removes his fixtures, he wiU be entitled to retain those 
 removed within a reasonable time, as they are not forfeited to the 
 landlord by the forfeiture of the lease (m). But if the landlord 
 re-enters for the forfeiture the tenant's right to remove the fixtures 
 is gone (n). 
 
 Bight of purchasers, or mortgagees, to enter and remove fixtures. — 
 The right of the assignee of the lessee can of course, in general, 
 extend no further than the right of the lessee himself; but the 
 tenant's right to remove fixtures is held to be so far connected with 
 the land, that it may be considered as a right or interest in it, 
 which, if the tenant grants away, he shall not be allowed to defeat 
 his grant by a subsequent voluntary act of surrender, "for, as 
 regards strangers who were not parties or privies to the surrender, 
 the estate surrendered hath in law a continuance " (o) ; and, there- 
 fore, if a lessee who has mortgaged his fixtures surrenders his term 
 and quits possession, the mortgagee may nevertheless enter and 
 remove the fixtures (p). Trade fixtures afSxed to mortgaged pre- 
 mises by the mortgagor in a quasi-permanent manner, before or even 
 after the mortgage, pass to the mortgagee (q). An equitable mort- 
 gagee has the same rights in this respect as a legal mortgagee (r). 
 
 Waste com/mitted by strangers upon land demised to a tenant or 
 lessee. — Every lessee of land, whether for life or years, is liable, 
 under the statute of Gloucester, to an action for commissive or 
 wilful waste done on the land in lease, by whomsoever it may be 
 committed. The statute of Gloucester (ante, p. 235) " prohibiteth 
 farmers from doing waste; and yet, if they suffer a stranger to do 
 waste, they shall be charged with it, for it is presumed in law that 
 the farmer may withstand it, 'Etqui non obstat quod obstare potest, 
 facere videtur.' In this case the lessor shall have his action of 
 waste against the lessee, and the lessee his action of trespass against 
 him that did the waste, and so the loss, as reason requireth, in the 
 end shall lie upon the wrong-doer" (s). 
 
 (I) Leader v. Somewood, 5 C. B., N. (p) Land. & Westminster Loan A-c. Co., 
 
 S. 546 ; 27 Law J., 0. P. 316. Suffey 6 C. B., N. S. 798 ; 28 Law J., 0. P. 297. 
 
 Y. Henderson, 21 ib. Q. B. 49; 17 Q. B. {q) CuWwich v. SvdndeU, L. E., 8 Eq. 
 
 574. Heap v. Barton, 12 C. B. 274. Oa. 249. aimie v. Wood, L. E., 3 Exch. 
 
 (m) Stansfeld t. Mayor of Portsmouth, 257 ; 4 Exch. 328 (Exch. Ch.) ; 38 L. J., 
 
 4 0. B., N. S. 131. Surrmer t. Bromilow, Exch. 223. See Boyd v. Shorroch, h. E., 
 
 34 L. J., Q. B. 130. But see Storer v. 5 Bq. Ca. 72. Bx parte AsUury, L. E., 
 
 Simter, 3 B. & C. 368. 4 Ch. App. 630. Longbottom v. Berry, 
 
 (») P'ugk T. Acton, 38 L. J., Ch. 619. L. E., 5 Q.B. 123. 
 
 .■ ^ H- .?^ n^^- W y«6* ^- ^«^e, L. K, 5 C. P. 73. 
 
 (0) Co. Litt. 338b. (4 2 lust. 1467 
 
SECT. 1.] INJUEIES BY FIEE. . 247 
 
 License to commit waste. — If a general or partial permission be 
 given to the lessee by the lease to commit waste, he is so far tenant 
 without impeachment of waste. Such permission vests the property 
 of what is the subject of waste in the lessee, so that he avails 
 himself of it during the continuance of his interest. It is so with 
 respect to trees and minerals. "Where land was demised for a term 
 of years, with liberty to the lessee to dig half an acre of brick- 
 earth to a certain depth annually, and the lessee covenanted that 
 if he dug more he would pay an increased rent of 375Z. per annum 
 per acre, and a stranger dug and took away brick-earth, it was 
 held that the lessee was entitled to recover from the stranger the 
 full value of such brick-earth {f). 
 
 Might of reversioners to enter wpon lands in the possession of their 
 lessees to inspect waste. — The law gives to the lessor, or him who 
 hath the reversion, liberty to enter upon the lands of his lessee, to 
 see if there be waste, to the intent that he may have his action, if 
 there be cause for it ; and if the lessee prevents the inspection, he 
 is liable to an action for damages (u). 
 
 Injuries to lands and tenements from fire. — The involuntary and 
 unintentional burning of a house, through the negligence of the 
 tenant or his servants, amounts, in contemplation of law, to no 
 more than permissive waste ; and for this a tenant-at-wilL or from 
 year to year is not, as we have seen, responsible to the reversioner 
 (ante, p. 234). Where the Countess of Shrewsbury brought an 
 action against a lawyer of the Temple, and declared that she leased 
 to him a house at wiU, " et quod ille tam negligenter et improvide 
 custodivit ignem suum quod domus ilia combusta fuit," it was held 
 that the action was not maintainable, as it was in effect an action 
 for permissive waste, for which a tenant-at-will was not answer- 
 able' (v). Every landlord who demises buildings to a tenant must 
 be taken to contemplate aU. the ordinary risks to which house 
 property is exposed from iire and the neghgence of servants 
 intrusted with fire and candles (w) ; and if he wishes to be pro- 
 tected from these risks, he must either insure or take from his 
 lessee a covenant to repair and maintain the premises. If he fails 
 to do so, and the premises are destroyed by fire, without any gross 
 or culpable negligence on the part of the tenant, the landlord will 
 have no remedy for the loss. If the fire has been caused by 
 such an amount of gross negligence as to give it the appearance 
 of a wilful act, the party guHty of the misconduct, whether it 
 be the tenant or a stranger to the demise, wHl be answerable 
 
 H) AitmoU V. Stevens, 1 Taunt. 183. , 4 M. & Sc. 263. fforsefaU v. Mather, 
 
 (u) Sunt V. Dawrman, Oro. Jao. 478. Holt, K P. C. 9. 
 
 U CovMtess of Shrewsbury^. Crompton, {w) Fortuna_ autem ignis, vel hujus- 
 
 KTr. i^h. r!ro Eliz 777: TindaLO.J., modi erentus inopinati, omnes tenentea 
 
 s uo. KiD , ^.ro. suu^. < . . , •, excusat. Keta Ub. i. cap. 12, s. 20. 
 
248 WASTE. , [CHAP. V. 
 
 for commissive waste. And, althougli a lessee coming into posses- 
 sion of houses and buildings under a contract with a lessor who 
 might, if he thought fit, have taken security against damage from 
 fire, is not responsible to such lessor for fire caused by involuntary 
 and unintentional neglect, yet, if a fire, originating in negligence, 
 spreads from the demised premises to, other buildings of the lessor, 
 or to the buildings of strangers, the lessee will be responsible for 
 the damage done to them («). 
 
 Every person who puts a dangerous thing in motion which 
 causes injury to another, is, as we have seen {ante, p. 2), in general 
 responsible for the mischief it occasions (y); Where a man shoot- 
 ing with a gun at a fowl hit his own house and set it on fire, 
 and the fire spread to the house of his neighbour and destroyed it, 
 it was held that the firer of the gun was responsible for the damage, 
 although the fire was occasioned rather by an accident or misad- 
 venture than by negligence (2). 
 
 Every person who lights a fire is clotheH by the common law 
 with a heavy responsibility to his neighbours as regards the safe 
 keeping of such fire. By the ancient custom of the realm, " quilibet 
 homo et foemina ignem suum, die et nocte, salve et secure custodire 
 teneatur, ne pro defectu debitse custodise ignis hujusmodi damnum 
 aliquod vioinis suis eveniat " (a). It was formerly held, that if a 
 fire broke out accidentally in a man's house, and raged to such a 
 degree as to burn his neighbour's house, he in whose house the fire 
 first happened was liable to an action on the case on this general 
 custom of the realm (&). In Eolle's Abridgment it is said : " If 
 my fire by misfortxme burns the goods of another man, he shall have 
 an action on the case against me. If the fire lights suddenly on 
 my house, I knowing nothing of it, and burn my goods, and also 
 the house of my neighbour, my neighbour shall have an action on 
 the case against me. If my servant puts a candle or other fire in a 
 place in my house, and it falls and burns aU my house and the 
 house of my neiglibour, action on the case lies against me by him; 
 and the law is the same if my guest should do it, or a person who 
 enters my house with my leave or knowledge " (c). " But if a man 
 out of my house; against my will, puts fire into the straw of my 
 house or elsewhere, whereby my house is burnt, and the houses of 
 my neighbours are burnt, of that I shall not be bound to answer 
 to them, &c., for that cannot be said to be by malfeazance on my 
 part, but against my will " {d). 
 
 (a) Panton v. Ishm., S Lev. 359. (5) Bao. Abr., Actions on the Case, V., 
 
 \y) Grose, J., in Leame v. Bray, 3 p. 104, 7th ed. 
 
 East, 600. (c) 1 Eoll. Abr., Action sub Case B. 
 
 (z) Anon. Cro. Eliz. 10. Danvers Abr. 10. 
 
 (a) Easl.r. Entr. p. :8. Pmton v. Ham. (d) Marlcham, J., Beaulieu v. Fivglam, 
 
 8 Lev. 356, ' 2 H. 4, fol. 18, pi. 6. 
 
SECT. 1.] ACCIDENTAL FIRES. 249 
 
 But although the master of a house, or the raiser of a fire, was 
 clothed with this extensive responsibility as regarded the lighting, 
 safe-keeping, and spreading of such fire, yet if the fire spread by 
 reason of the act of God, or from some superior cause which could 
 not have been prevented, controlled, or resisted by human agency, 
 the master of the house, or the lighter of the fire, was held excused. 
 Thus, where the defendant's servant kindled a fire in the defendant's 
 field in the way of husbandry, and in the ordinary course of his 
 employment as a farm servant, and the wind drove the fire into an 
 adjoining heath and coppice of the plaintiff, and set it on fire, it 
 was held that if the defendant could have sho^vn that the spreading 
 of the fire had been occasioned by a sudden storm, which could not 
 have been foreseen, guarded against, or controlled by human agency, 
 that would be good evidence to excuse the defendant (e). 
 
 Accidental fires. — ^To put the law on a proper footing, by 
 rendering a person responsible only on proof that the fire was 
 occasioned by the actual negligence of himself or his servant (/), 
 it was enacted by the 6 Anne, c. 31, ss. 6, 7, that no action or suit 
 shall be maintained against any person in whose house or chamber 
 any fire shall accidentally begin, or any recompense be ma,de by 
 such person for any damage occasioned thereby. • This statute was 
 repealed by 12 Geo. 3, c. 73, s. 46, but the above protection was 
 re-enacted by s-. 37 ; and by 14 Geo. 3, c. 78, s. 86, it is extended 
 to all persons in whose stable, barn, or other building, or on whose 
 estate any fire shall accidentally begin ; but no contract between 
 landlord and tenant is to be defeated or made void. 
 
 It was thought for a long time that the word " accidental " in 
 these statutes was employed in contradistinction to wilful, and that 
 the same fire might be said to begin accidentally, and yet be the 
 result of a certain amount of negligence ; but it has been since held 
 that these statutes refer only to fires produced by mere chance, or 
 which are incapable of being traced to any cause, and so stand 
 opposed to the negUgeuce of either servants or masters, and that 
 they do not, consequently, protect persons from the ordinary 
 common-law responsibility in respect of fires occasioned by negli- 
 gence ig). Thus, where the occupier of a meadow adjoining some 
 cottages belonging to the plaintiff stacked a hay-rick ca the 
 extremity of the meadow in too green a condition, close to the 
 plaintiff's cottages, and the hay smoked, and steamed, and exhibited 
 unequivocal symptoms of approaching combustion, and the defen- 
 dant was frequently warned of the danger of the stack's taking 
 
 (e) Tuhervil v. Stamp, 1 Salk. 13 ; 1 (ff) FilUterj. f'''ipPf;^,n Q. B. 357. 
 
 Ld Raym. 264. Canterbury (Visct.) t. Att.-Oen., 1 PliiJl. 
 
 (/) M. Canterlmry v. the Qiieen, 1 328. 
 Phill., 12 LawJ., Ch. 284. 
 
250 WASTE. [CHAP. V. 
 
 fire, and said that he would " chance it," but he ultimately caused 
 a hole to be cut through the centre of the rick, which, unfortunately, 
 hastened the catastrophe it was intended to avert, and the hay-stack 
 caught fire, and thfe fire spread to the barn and stables of the 
 defendant, and thence to the plaintiff's cottages, and totally con- 
 sumed them, it was held that the defendant was responsible for the 
 destruction of the cottages, and that, in cases of this sort, " it is 
 for the jury to say whether or not, under the circumstances, the 
 party has conducted himself with such a degree of care and caution 
 as might be looked for in aprudent man" (A). 
 
 It has been held, also, that these statutes respecting accidental 
 fires do not apply where the fire originates in tjie use of a dangerous 
 engine or instrument, knowingly used by the owner of the land or 
 estate on which the fire breaks out ; so that if the owners of 
 manufactories and steam-engines are guilty of any negligence or 
 carelessness in the management of their _furnaces and chimneys, 
 and by reason thereof sparks escape and are blown on to the 
 adjoining buildings, the owners of the furnace will be responsible 
 for the damage done. It has been held, moreover, that a fire 
 designedly lighted by the defendant or by his orders, on his own 
 estate, and which afterwards spreads, and causes damage to the 
 plaintiff, is not .a fire which "accidentally begins" within the 
 meaning of the statute ; so that if a person lights, or causes his 
 servants to light, fires on his land, for the purpose of burning weeds 
 and rubbish, and the fire spreads to and destroys the hedges and 
 woods or' cornfields of the adjoining landed proprietor, the lighter 
 of the fire will be responsible for the damSge {i). But a fire may 
 be knowingly and designedly lighted in the first instance, and 
 yet may fairly be said to " accidentally begin " the moment that, 
 through some sudden and unexpected wind, the fire spreads, or 
 sparks and fragments of fire are blown into the air, and get beyond 
 the control of the party who has lighted and watched the fire 
 (ante, p. 249). 
 
 Fire spreading from hlast-fwrimces and sieam-m^mes.— Wherever 
 it is practicable to adopt precautions that wOl render damage by 
 fire from a furnace " next to impossible," a failure to adopt those 
 precautions wiU be negligence. Where a spark of fire from the 
 chimney of a locomotive engine on a railroad fell on the thatch of 
 a cart-lodge, and set it on fire, and the fire communicated to several 
 other farm-buildings, and totally destroyed them, it was held that 
 the very occurrence of the disaster was, primd facie, proof of 
 negligence on the part of the company and their servants having 
 the management of their engine, rendering it incumbent on them 
 
 {h) Yavghm Y. Menlove, i Sc. 251 ; 3 (i) FiUiter v. Phvppmd; TuUrvU y. 
 
 B. N. C. 468, Stamp, supra. 
 
SECT. 1.] FIEES SPEEADING TROM EAILWAYS, ETC. 251 
 
 to show that every possible precaution had been taken to prevent 
 the escape of sparks (j). 
 
 Fire, spreading from, railways to the adjoining property. — If rail- 
 way companies allow quantities of long 4ead grass, or any other 
 combustible material, dangerously to accumulate along their rail- 
 way, and the combustible matter is ignited from lighted coals or 
 sparks escaping from their locomotive engines, and the fire spreads 
 from the railway to the adjoining coppices and fifes them, the rail- 
 way company will be responsible for the damage done, for such a 
 fire is not a fire which accidentally begins on their estate, but is a 
 fire caused by their negligence in not keeping the railway free from 
 combustible materials likely to be ignited by their furnaces, and to 
 cause damage to their neighbours. And they will be liable, although 
 they could not reasonably anticipate that such consequences would 
 ensue from their negligence Q£). They may be expressly autho- 
 rised by statute to use locomotive' furnaces of a dangerous character, 
 but no statute can exempt them from the consequences of negli- 
 gence ia the management of their railways, or the construction of 
 their fire-boxes, chimneys or furnaces, whereby coals of fire are 
 thrown on the adjoining property. If they neglect to avail them- 
 selves of all such contrivances as are in known practical use to 
 prevent the emission of sparks from their engines, they will be 
 responsible for such neglect (?). And if they run locomotive engines 
 without statutable authority, in that case they are responsible for 
 any damage caused by such engines in setting fire to adjoining 
 property or otherwise, although they have not been guilty of negli- 
 gence (m). 
 
 Fins occasioned hy the negligence of servants. — The 12 Geo. 3, 
 c. 73, s. 35, imposes penalties upon servants who, through negli- 
 gence or carelessness, fire any houses or buildings ; but this enact- 
 ment does not exempt the master from responsibilLty for the 
 negKgent acts of the servant whilst carrying into execution the 
 master's orders, and doing something which the master has employed 
 him to do {ri). If the work the servant is employed to execute 
 does not require the use of fire, but the servant, nevertheless, 
 kindles a fire for his own purposes, to cook his dinner or light his 
 pipe, and carelessly throws burning material amongst combustibles, 
 and destroys valuable property, the master is not responsible for 
 
 (n Pmoi V. Mslmi Co. Rail. Co., 3 Rail. Co., ut mp. Vaughan v.Taff Vide 
 
 C ^¥ iwAMridge r. Ot. West. Rail. Rail. Co., 8 H & N. 743 ; 28 Law J., 
 
 Co 3 M & Gr 515 Frenumtle v. Land. Exch. 41 ; 29 Law J., Exch. 247; 5 H. 
 
 T'North-West: RaU. Co., 10 C B N S. & N. 679. 
 89 ■ 31 Law J C P. 12 ; 2 F. & P. 337. (m) Jones v. Festmwg Rail. Co., L. K., 
 
 (k) SmUkyl'Lond. S South- West. Rail., 3Q.B.733. o r, ivr r 
 
 L R 5 C P 98 • 6 iJ. 14. (") Vamghan v. Menlove, a is. JN. C. 
 
 '(l)''Fremantk v. land. & North- West. 468. 
 
252 WASTE. [CHAP. V. 
 
 the unauthorised act of his servant (o). Where a maid-servant, 
 in order to clear a chimney of soot, set fire to the soot, with a 
 quantity of furze, and hurnt the house down, it was held that the 
 master was not responsible for the damage, as it was no part of 
 the servant's business to clean the chimney, or to use fire for the 
 purpose (p). 
 
 Amongst the Eomans, where fire was little used, and candles 
 were unknown, it was considered that damage from fire seldom 
 occurred without imprudence or negligence, and those through 
 whose neglect, however slight, a fire occurred, were held answerable 
 for the damage done by it (q). 
 
 Injuries from gunpowder and explosive substances — Explosions of 
 gas. — Whoever introduces gunpowder or explosive materials into a 
 building is responsible for damage occasioned by the introduction 
 of such dangerous substances. If a person mixes things together, 
 which alone are perfectly innocent, but which are liable to explode 
 on coming into contact, he is responsible for the consequences ; and 
 if an explosion ensues he must make good the damage (r). Every 
 tenant of a house is responsible for not taking care that the stop- 
 cocks for regulating the supply of gas to a house are properly 
 turned ; and if these stop-cocks are negligently left open by the 
 tenant or servants when the gas-lights are not burning, and an 
 explosion ensues, and injures the house, the tenant will be respon- 
 sible for the injury. But if a thief enters the house in the absence 
 of the tenant, and cuts and carries away a gas-pipe without .the 
 knowledge of the tenant, or against his will, the latter is not then 
 responsible for the resulting damage. When the entry of gas into 
 a house is under the control of the occupants of the house, the gas 
 company supplying the gas is not bound, on receiving notice that 
 no more gas will be required, to stop the supply from the outside 
 by putting on an outer stop-cock, or cutting off the communication 
 between the gas-pipes in the interior of the house and the main in 
 the street (s). In supplying gas to a house, a gas company is bound 
 to use every reasonable precaution to prevent injury during the 
 operation of "tapping the main" (t). 
 
 (o) Williams v. Jones, 33 Law J., Excli. (r) Tiudal, C. J., in VaugJian r. Men- 
 
 297. love, i Sc, 252. 
 
 {p) McKenzie v. McLeod, 10 Bing. 385 ; (•») ITolden v. Uv. Gas Co., 3 C. B. 14 ; 
 
 3 Laiv J., N. S. C. P. 75. 15 Law J., C. P. 304. 
 
 i^<jI) Dowai, liT. 2, tit. 8, s. 4. («) BlenUron v. Gt. Central Gas Con- 
 
 sumers' Co., 2 F. & F. 438. 
 
SECT. 2.] ACTIONS FOR 253 
 
 SECTION II. 
 
 KEIMKDIES AT COMMON LAW FOE INJUKIES TO LANDS FllOM WASTJ',; 
 NEGLIGENCE, AND FIEE. 
 
 Tke writ of prohibition for waste was anciently a common-law 
 remedy, grantable only at the instance of the person injured, but 
 by the statute of Westminster the second (13 Ed. 1, c. 14), this 
 writ is taken away, and a writ of summons substituted in its place ; 
 "and although it is said by Lord Coke, when treating of prohibition 
 at the common laM^ that it may be used at this day, those words, if 
 true at aU, can only apply to that very ineffectual writ directed to 
 the sheriff, em.powering him to take the posse comitates to prevent 
 the commission of intended waste " (u). 
 
 Actions for waste. — The real action for waste, in which the land 
 or tenement itself was recovered, with thrice as much as the waste 
 was taxed at, has been abolished by 3 & 4 Wm. 4, c. 27, s. 36, and 
 the remedy at common law is now by the ordinary action on the 
 case, in which the actual damage sustained may be recovered, and 
 an injunction obtained to prevent the continuance or repetition of 
 the mischief {x). 
 
 Actions hy owners of insured premises. — The right of the owner 
 of real property, which has been damaged or destroyed by fire, 
 caused by rioters or by negligence, to sue the wrong-doer for 
 damages, is not affected by the fact of his having insured the pro- 
 perty, and received from an insurance company full indemnity for 
 his loss (y), but he sues in the character of a trustee for the insurer, 
 and is bound to hand over the damages he recovers to the latter. 
 And an insurer, who has paid the loss, is entitled to sue in the 
 name of the insured for the purpose of recovering full compensation 
 from the wrong-doer (2:). 
 
 Parties to actions for waste. — An action for waste in houses and 
 buildings must in general be brought by the person entitled to the 
 immediate estate in remainder ; but if the tenant for life commits 
 waste, and the first remainderman dies, the person next entitled 
 may sue for the damage (a), if he had a vested interest in remainder 
 at the time the waste was done (5). When the person next in 
 remainder has only a life interest, his right to recover damages is 
 of course confined to the injury done to his limited interest (c). 
 
 (m) Jtgerson v. Bishop ofDurlmm,, 1 B. (z) Rwndal v. Gockran, 1 VeB. sen. 97 ; 
 
 & P. 121. P°^' ct- 22, s. 1. 
 
 (x) Post, ch. 23, s. 1. (a) Bray v. Traey, Cro. Jac. 688 ; Pa^ 
 
 (y) Tales T. Whyte, 6 Sc. 640 ; 4 JJing. gefs case, 5 Co. 76b. 
 N. C. 272. (b) Bacon r. Smith, 1 Q. B. 348. 
 
 (c) Evelyn v. Saddish, ante, p. 75. 
 
254 WASTE. [chap. v. 
 
 Where timber has been lawfully feUed on an estate by a tenant for 
 life, or a person having a limited interest, the first owner of the 
 inheritance is entitled to maintain an action for the conversion of 
 the timber as a chattel severed from the inheritance, passing over 
 all the intermediate limited estates (d), for the property in the 
 timber must be in some one as soon as the wrongful act is done, 
 and the law therefore vests it in the first owner of the inherit- 
 ance («). 
 
 In cases of^injuries from fire caused by the negligence of a neigh- 
 bour, who has carelessly lighted a iire on his own land, which has 
 spread to a demised tenement and injured it, the landlord is entitled 
 to sue for the damage done to his inheritance, and the tenant for 
 the injury to Ms possession and occupation (/). We have already 
 seen that, when several persons have a joint interest in the pro- 
 perty, as occupiers or reversioners, they ought all to be made 
 plaintiffs in an action for an injury to the property (g) ; and that 
 when several persons have been jointly engaged in the doing of the 
 wrongful act, the plaintiff may sue one or more of them a,t his 
 election (h). 
 
 Declarations for waste should set forth the defendant's posses- 
 sion and occupation of a messuage, tenement or land, of which the 
 reversion is in .the plaintiff, and the wrongful commission by the 
 defendant of the particular description of waste complained of, 
 averring that, by means of the wrongful act, the plaintiff is greatly 
 injured in his reversionary estate, and claiming damages (i). If the 
 tenant has severed and removed things attached to the freehold ; if 
 he has dug up and carried away virgin soil, stone, or gravel, with- 
 out the licence of the landlord or reversioner, or has severed and 
 removed landlord's fixtures, the things so severed forthwith vest in 
 the landlord as chattels, and the latter may also declare either for a 
 trespass or'for a conversion of the property (Jc). 
 
 Declarations upon the custom of the realm for the negligent keep- 
 ing of a fire show a good cause of action, by setting forth that the 
 defendant, by his servant, lighted a fire on the defendant's land, 
 and so negligently kept such fire that it extended from the defen- 
 dant's land to the adjoining buildings, &c., of the plaintiff, and 
 wholly destroyed them (Z) ; or that the plaintiff was possessed of a 
 close of land, closely adjoining a certain other close in the occupa- 
 tion of the defendant, and that the defendant wrongfuUy lighted a 
 
 (d) BowUs's case, 11 Eep. 79b. (i) Martyr v. Bradley, 9 Bing. 24. 
 
 (e) Wood, V.O., Oent \: Harrison, Towng v. Spencer, 10 B. & C. 145. Mar- 
 Johns. 624 ; 29 Law J., Ch. 68. tin v. Gaham, 7 Ad. & E. 540 ; 2 Wm. 
 
 {/) Panton v. Isliam, 3 Ler. 359 ; 1 Saund. 262. 
 
 Balk. 19. Ante, p. 202. (i) Biggon v. Mortimer, 6 C. & P. 616 ; 
 
 (gr) Ante, pp. 70, 202, • post, oh. 7, s. 2. 
 
 (A) Ante, pp. 147, 2Q3 ; and post, ch, 20, (J) Pantm v, Mm, 3 Lev, 359, 
 
SECT. 2.] ACTIONS FOE — PLEADINGS— EVIDENCE. 255 
 
 fire on his said close, at a time when, by reason of the state of the 
 wind and weather, it was highly dangerous to light a fire, and that 
 tlirough the negligence of the defendant and his servants, the fire 
 extended itself from the olose of the defendant to the close of the 
 plaintiff, and burnt and destroyed the trees,' hedges, and fences of 
 the plaintiff, &c. (m). 
 
 A good cause of action also is disclosed by a declaration alleging 
 that the plaintiff was possessed of farm-buildings and stacks of corn 
 standing in a close in the occupation of the plaintiff, closely adjoin- 
 ing a certain other close in the occupation of the defendant, and 
 that the defendant placed a stack of hay on his said close, which 
 heated and smoked, and gave out a strong smell, indicating that 
 the hay-stack was in danger of taking fire, of which the defendant 
 then had notice, and that the defendant, knowing the dangerous 
 condition of the hay-stack, nevertheless kept it on his said close, 
 and knowingly caused it to be a source of danger to the adjoining 
 property of the plaintiff, although he could have removed it, or 
 prevented it from being dangerous; and that by reason of the 
 defendant's default and negligence in the premises, the hay-stack 
 ignited and burst into flame, and set fire to the adjoining farm- 
 buildings of the plaintiff (to). 
 
 Pleas. — The plea of not guUty, and the evidence admissible 
 thereunder, and special pleas in actions for waste, &c., are governed 
 by the same rules as those previously set forth in actions for 
 infringements upon territorial and incorporeal rights (o). 
 
 Evidence at the trial. — Proof on the part of the plaintiff in actions 
 . for' waste must be directed to the establishment of the material 
 facts alleged in the declaration, i.e., the defendant's tenancy of the 
 land on which the waste was committed, the plaintiff's reversionary 
 interest therein, the nature of the grievance, and the permanent 
 injury thereby done to the inheritance, or to the plaintiff's pro- 
 prietary rights as reversioner {ante, pp. 70, 253). If the action is 
 brought for permissive waste, the plaintiff must prove that the 
 defendant is tenant for life, or that he has a permanent interest in 
 the property permitted by him to go to waste and ruin {ante, 
 pp. 202, 231) ; but if it is for commissive waste, the nature and 
 duration of the defendant's interest in the property is wholly 
 immaterial. If it be proved that the tenant left windows and 
 doors open which ought to have been kept closed against storm 
 and rain, or that panes of glass were broken, and that he allowed 
 the windows to remain without glass, so that the rain, frost, and 
 
 (to) Fiaiter v. Plippavd, It Q. B. 348. B. 229. Vmghm v. Taff Vale RaM. Co. 
 
 (n) Vaughan v. Menhve, 3 B. K. C. 468. FremanUe v. Land, cfc North- West, RaU, 
 
 AUridge r. Gt. West. Rwy., 3 M. & Gr. Co., ante, p. 251. 
 
 516. Piggot v. East Co-RaU, Co., 3 C, (o) Ante, pp. 73, 150 j mi post, ch,21. 
 
256 WASTE. [CHAP. V. 
 
 damp penetrated the building, and rotted the internal timbers 
 and woodwork thereof, to the lasting damage of the inheritance, 
 there will be evidence of commissive waste. If the plaintiff com- 
 plains of the removal of door? and partitions in the house, he must 
 show that the alterations made were of a permanent character, 
 making a real change in the form and arrangement of the building, 
 or that they deteriorated the property {ante, pp. 232, 233). If the 
 cause of action is founded on the removal by the tenant of things 
 attached to the freehold, it must be shown that the removal was 
 wrongful, either on the ground that the things removed never did 
 belong, or ceased to belong, to the defendant, or that they had 
 become forfeited to the plaintiff {ante, pp. 241 — 246). If the 
 plaintiff sues for damage from fire, he must show that the fire was 
 lighted by the defendant or his servants, or that a fire was burning 
 on the defendant's estate, and that it was so negligently managed, 
 or was lighted so carelessly, that it extended to the plaintiff's 
 buildings and destroyed them. It is not necessary to prove the 
 legal duty to take care of a fire. If the action is brought by 
 a lessor, it may, as we have seen, be defeated by proof of the 
 tenancy between the plaintiff and the defendant {ante, p. 247). 
 
 Damages recoverable in respect of the severance and sale offisdures. 
 — Where fixtures have been unlawfully detached from the freehold 
 and sold by auction, the measure of damages in an action against a 
 wrongdoer for the seizure and removal of the fixtures is the value 
 of the fixtures, as between an outgoing and incoming tenant {p), 
 in addition to compensation for any intentional wrong, injury, or 
 insult involved in the act of removal, or for any trespass that may 
 have been committed in removing them. 
 
 Effect of the recovery of nominal damages. — In the old action of 
 waste, where the thing wasted was sought to be recovered as well 
 as damages, it was held that if the damages did not amount to 
 3s. M., the defendant was entitled to judgment {c[). " I do not," 
 observes Lord Eldon, C. J., " see precisely on what grounds these 
 decisions proceeded ; though I can easily conceive many cases in 
 which it may be extremely unconscientious for a plaintiff to take 
 advantage of his judgment, where such small damages have been 
 recovered." Therefore, where the owner of land suffered his tenant to 
 expend a large sum of money in building upon .the land, and laying 
 out a garden without making any objection to the alteration and 
 improvement, and then brought an action of waste on the statute, 
 and the jury assessed the damages at one farthing, the court gave 
 judgment for the defendant. But in an action on the case for 
 
 (p) Thompson v. Pettit, 10 Q. B. 106. 
 ■ (?) ^igg T. Parsons, cited 2 East, 165 ; Bull. N. P. 120. 
 
SECT. 2.] ACTIONS FOR— DAMAGES. 257 
 
 waste, it is no objection to the landlord's claim to substantial 
 damages, or to the judgment of the court, that the property has 
 been improved in value by alterations made upon it, if those 
 alterations have been made without the knowledge of the landlord, 
 or in spite of his protest or objections. Thus, if a tenant convert a 
 furze brake in which game have bred into arable or pasture land, 
 by which its real value is much improved, but the landlord has 
 objected to the improvement, preferring a furze brake with game 
 to a cornfield without game, the landlord is entitled to substantial 
 damages (r), and. to judgment, whatever may be the damages 
 recovered (s). 
 
 Assessment of damages. — ^We have already seen that the damages 
 in actions for injuries to real property must be assessed with refe- 
 rence to the several interests of the owners and occupiers, and be 
 apportioned to each in respect of the injury sustained by each, an,d 
 that the satisfaction made to one is no bar to an action brought by 
 the other (ante, pp. 75, 213). 
 
 Where, therefore, a house has been burned down, or destroyed 
 by culpable negligence, and there are several persons interested in 
 the property, viz., tenant for life, tenant in tail, and reversioner in 
 fee, the tenant for life can recover only such damages as are com- 
 mensurate with his life estate (f). If a house demised to a tenant 
 has been set on fire, or thrown down through the negligence of a 
 neighbour, the damages are apportionable between the landlord and 
 tenant. The tenant is entitled to recover in respect of the value of 
 Ms possessory interest and unexpired term in the premises, and the 
 landlord in respect of the injury to his reversion (u). But if the 
 tenant is bound by covenant to keep the house in repair, the sub- 
 stantial injury would then accrue to the tenant, and the tenant 
 would be entitled to recover the cost of rebuilding the house, 
 deducting the difference in value between old materials and 
 new (x). The tenant, moreover, would be entitled to damages in 
 respect of the loss he has sustained in being obliged to seek out 
 and pay for another residence ; but he coidd not recover the full 
 value of the house (y). 
 
 "When the action is brought for a breach of duty by the defen- 
 dant, in omitting or neglecting to restore or rebuild a house which 
 the defendant has undertaken to maintain and keep up, and which 
 has been accidentally burnt or destroyed, the measure of damages 
 is not the cost of rebuilding the house. In such a case, the plaintiff 
 can only recover the loss he has sustained by the actual deteriora- 
 
 (r) Heath, J., Harrow School v. Alder- (u) Pmton v. Ishcm, 3 Lev. 359 ; 1 
 
 ton, 2 B. & P. 86. Salt. 19. 
 {>) Pindar T. Wadsworth, 2 Bast, 161. (x) LuUn t. QodsaU, 2 Peake, 15 ; 
 
 (t) Mvdyn t. BadMsh, Holt, 543. post, ch, 14, 8. 1. 
 ''' " (2,) Hosking v. PhiMips, 3 Exch. 182, 
 
258 WASTE. [CHAP. V. 
 
 tion of his property. And if the new house, when rebuilt, will be 
 much more valuable to the plaintiff than the old house that was 
 burnt or destroyed, the defendant is entitled to the benefit of the 
 deduction of the increased value from the cost of the rebuilding (z). 
 
 The plaintiff's right to recover damages from the wrong-doer, 
 in respect of the injury he has sustained, is not affected, as we have 
 seen, by the fact of his having insured the property and being 
 indemnified for the loss (a); but he cannot, as we shall presently 
 see, recover a double satisfaction, but - is bound to pay over to the 
 underwriter of the policy the damages he recovers from the. wrong- 
 doer (6). 
 
 Damages recoverable from a tenant who obstructs the 'reversioner 
 in the exercise of his right to enter upon the demised pretmses to 
 inspect waste.-^We have already seen that the law gives to the 
 lessor, or him who hath the reversion, liberty to enter upon the 
 lands of his lessee, to see if there be waste, to the intent that he 
 may have his action, if there be cause for it ; and, therefore, if 
 the lessee prevents the inspection, substantial damages may be 
 recovered from him by reason of the infringement of the lessor's 
 right, although no waste has actually been committed or damage 
 done (c). 
 
 SECTION III. 
 
 OP INJUNCTION TO PKEVENT WASTE. 
 
 Prevention of eaw-inissive or wilful waste by injunction, — The 
 courts of chancery and of common law (cf) wiU interfere by injunc- 
 tion to restrain lessees, teflantg for life, mortgagors in possessiop., 
 and persons haying a limited interest ii^ land, from committing 
 waste thereon tp the injury of thp landlord^ mortgagee, or rever- 
 sioner (e), The court will restrain thgm froni digging, o^ ploughing 
 up, or destroying the surface of ancient pasture land, and frqm 
 sowing the land with pernicious crops (/), from digging and carry- 
 ing away brick-e^th (^) and stones (A), cutting ditphes, opening 
 mines and quarries (i), and abusing a, Bniited right to dig for an4 
 
 {z) Yaks V. Dunster, 11 Bxch. 17 ; 24 (c) Bao. Abr. (Waste), N. 
 
 T-(W J;, T5scli. 226. L^h^n v. Qo,dsaU, 2 (/) WonUy v. SHia/rt, 4 Bro, P. C. 
 
 Peake, 15. 377. D^wry v. Molim, 6 Ves. 828. 
 
 (a) Clark t. BlytUng, 2 B. & C. 253 j Pratt v. BreU, 2 Madd. 62. 
 
 ante, p 253. (g) London (Bishop of) v. Web, 1 P. 
 
 (J) Post, oh. 22, s. 1. Wms. 528. Viner v. Vaiiohan, 2 Beav. 
 
 (c) Munt V. Dowman, Cro. Jae. 473. 466. 
 
 (d) As to injuiisti9B at ppnipapR law, (h) Oowper v. Baker, 17 Ves. 128. 
 gee^osi, oh. 2-3, k) anson r. Smith, 2 Atk, 182, 
 
SECT. 3.] REMEDY BY INJUNCTION. 259 
 
 carry away stone (k), cutting turf (I), or timber (m), or underwood 
 of insufficient growth (n), pulling down fences and buildings, and 
 caiTjring away the materials (o); unless the wrongful act works a 
 forfeiture of the estate, and the landlord or reversioner has an 
 immediate right of entry, and fails to exercise the right by bringing 
 an ejectment (p), or unless the parties have, by their contract, 
 assessed the compensation in the shape of an increased rent or 
 liquidated damages, to be paid for the doing of the act (g), and not 
 as a cumulative remedy (r). Where a tenant from year to year 
 received notice to quit, and then began to cut and damage the 
 hedge-rows, and to take manure off the land and remove straw, &c., 
 contrary to the course of good husbandry, the court granted an 
 injunction to stop the mischief (s). And where the tenant of a 
 farm, having discovered valuable mineral deposits in a stream 
 which ran from the Welsh mountains through his land, set to work 
 to gather the minerals, and sell them, the coiirt granted a perpetual 
 injunction to restrain him from so doing (t). 
 
 Where there is tenant for life, remainder for life, remainder in 
 fee^ or where there is tenant for life subject to waste, remainder for 
 life dispunishable for waste, remainder in fee, the Court of Chancery 
 will not suffer an agreement between the two tenants for life to 
 commit waste, to take place against the remainderman before the 
 time comes when the second tenant for life's power commences (%). 
 And where there is tenant for life, reinainder for life,' remainder in 
 fee, the court, on a bill brought by remainderman in fee to stay waste 
 in the iirst tenant for life, will, notwithstanding the intermediate es- 
 tate for life, upon a certificate of the waste, grant an injunction. And 
 so it will on a bill brought by a mortgagor, where the mortgagee in 
 possession conimits waste by cutting down timber, and the money 
 arising from the sale of the timber is not applied in sinking the 
 interest and principal of the mortgage. And where mortgagor 
 in possession commits waste, the court will, on a bill by the niort- 
 gagee, grant an injunction, for they will not suffer a mortgagor to 
 prejudice the incumbrance (v). 
 
 The court will also" restrain, by injunction, a lessee for lives 
 renewable for ever from comniitting waste on the demised pre- 
 mises (x), and prevent one tenant in comnaon from wilfuUy destroy- 
 
 (!c) Thomas v. OaEey, 18 Ves. 184. J., Exch. 348. Jhlfe v. Peterson, 2 Bro. 
 
 (I) C'oppinger v. QubUns, 9 Ir. Eq, P. 0. 436. 
 Eep. 310. ' W London {City of) t. Puyh, i Bro. 
 
 (m) Perrot v. Perrot, 3-Atk. 94. Pack- P. 0. 395. 
 
 inffton's case, ii. 215. Morris v. Morris, (s) Onslow v. , 16 Yes. 173. 
 
 15 Sim. 509. (*) Thomas v. Jones, 1 Y. 4 C. 510. 
 
 (») Brydges v. Stephens, 6 Madd. 279. (m) RoUnson t. LUton, 3 Atk. 210. 
 
 lo) London {Mayor of) v. Medger, 18 See Bvrch- Wolfe v. Birch, L. B., 9 Eq. 
 
 Ves. 355. Ca. 683. 
 
 {p) Lathropp v. Marsh. 5 Ves. 259. {v) Parrant v. lovel, 3 Atk. 722. 
 
 (?) Woodviard v. Gyle.s, 2 Vern. 119. {x) Pvrccll v. ^ask, 1 Jpnes, C25. 
 
 Games V, NesWt, 7 H, & N. 778 ; 30 Law 
 
 B 2 
 
260 WASTE. [CHAP. V-, 
 
 ing the common property (y) ; but where a railway company obtained 
 a lease from five out of six tenants in common, and laid down a 
 railway on the land in spite of the opposition of the sixth, the 
 court refused to grant an injunction to prevent the latter from 
 tearing up the rails (a). 
 
 If one tenant in common thinks proper, by agreement with 
 the other, to hold the common property as occupying tenant, and 
 thereby excludes his co-tenant in common from all right of entry 
 upon the land holden in common, an injunction will be granted- to 
 restrain him from dealing with the land otherwise than as an 
 ordinary occupying tenant {a). But if there be no tenancy, the 
 tenant in common in occupation of the land cannot be restrained 
 from acts contrary to good husbandry and the custom of the country 
 only, but not amounting to the destruction or waste of the common 
 property (&). 
 
 The patron of a living may also have an injunction against the 
 incumbent to stay waste; and a bishop may be restrained from 
 felling timber for sale at the instance of the Attorney-General, on 
 behalf of the crown, the patron of bishopricks (c). The patron is 
 the proper person to institute a suit to restrain the opening and 
 working of new mines, and he is the only person who can interfere, 
 unless it be the ordinary, in the event of collusion between the 
 patron 'and the incumbent {d). 
 
 An injunction" to restrain waste will be granted to protect the 
 interest of a child in ventre sa m&re, or a contingent remainderman 
 or executory devisee («). 
 
 If a tenant, finding his house ruinous and in danger of faUing, 
 proceeds to pull it down, with the intention of building a better, 
 the landlord may, by injunction, restrain him from so doing, as the 
 tenant has no right, as we have seen {ante, p. 232), to make changes 
 and alterations in the property demised to him without the land- 
 lord's consent (/). 
 
 The Court of Chancery does not now treat questions of destruc- 
 tive. -damage to property exactly as it did' forty or fifty years back ; 
 its protection in such respect being more largely afforded than it 
 then generally was {g). " The arm of the court," it has been said, 
 " is long enough to reach clear cases of destructive waste, even 
 where the party committing such waste is in possession, and the 
 party seeking to restrain the acts of waste is out of possession, and 
 
 (jl) Mole T. Thomas, 7 Ves. 589. 'Duke of Marlborough v. St. John, amte, 
 
 (s) Swham and Sund. Sail. Co. v. p. 239. 
 
 Wamm, 3 Bear. 119. {d) Holden v. Weekes, mU, p. 239. 
 
 (a) Tworty. Twort, 16 Ves. 128. (e) SoUnson. v. Litton, S Atk. 211 ; 2 
 
 (6) Bailey Y. Hobaon, L. E., 5 Ch. App. Daniel's Ch. Pr. 1225. 
 
 180. (/) Smyth v. Carter, 18 Beav. 78. 
 
 (c) Knightv.Mosdy, Amb. 176. Witlier 1^) Baigh v. Jaggar, 2 Coll. Ch. C. 231. 
 V. beam,, ^e., of Winch/r., 3 Mer. 427. 
 
SECT. 3.] EEMEDY BY INJUNCTION — LACHES. 261 
 
 his title is denied by the defendant " Qi). "Where, therefore, an 
 action of ejectment has been brought, the court will, at the instance 
 of the plaintiff in the action, restrain the person in possession of 
 the property from recklessly cutting down vast quantities of timber, 
 or denuding the estate of trees, or committing acts of waste and 
 destruction inconsistent with any fair or reasonable exercise of acts 
 of ownership {i). And where waste is committed by a stranger in 
 collusion with the tenant, the court will, at the instance of the 
 landlord, grant an injunction against such stranger, as well as 
 against the tenant (A). But " the court never interposes in case of 
 permissive waste, either to prohibit or to give satisfaction, as it does 
 in case of wilful waste " {!). 
 
 An injunction will be granted against waste when it is done 
 only in a slight degree, or when threatened ; but not on the prin- 
 ciple that it will do no harm to the defendant, if he does not intend 
 to commit the prohibited act (m). Nor has the court, jurisdiction 
 to interfere after all the mischief that can be done has been done. 
 But if there is yet room for its intervention, it has jurisdiction, under 
 the 20 & 21 Vict. c. 27, to assess the damages already done (n). 
 
 The court also will prevent one of several partners from doing 
 acts tending to depreciate the value of the partnership property, and 
 injuring the credit of the firm (o) ; and from disposing of the joint 
 stock to his own private purposes, in fraud of his co-partner {p). 
 
 Effect of acquiescence in the commission of waste. — It is a principle 
 of equity, that when a person has stood by seeing an act done, and 
 has consented to it, he cannot complain of that which he has him- 
 self expressly or impliedly authorised or permitted. Thus, where 
 the plaintiff had demised a logwood-mill to the defendant^ and the 
 latter altered it to a cotton-mill of great value, and the plaintiff 
 stood by and saw the cotton-miU erected at great expense, and made 
 no objection, and afterwards approved of the defendant's planting 
 about the mill, and the plaintiff then filed a bill for an injunction 
 to restrain the defendant from, using the mill as a cotton-miU, the 
 court dismissed the bill, on the ground that the plaintiff had by his 
 conduct encouraged the defendant to make the alteration (cj). 
 
 Effect of Idches or delay in seeking a remedy.— Wheie an expectant 
 tenant for life in remainder sees a tenant for life in possession im- 
 properly cut timber, and not only takes no step to prevent it during 
 
 (h) V.C* Wood in Tcdbot {Ewi-l of) t. (o) Mm-shaU r. Watson, 25 Beay 504. 
 
 Scott i Kav & J 108 (p) -^"^'^ ^- Schroder, 8 Ves. 317. 
 
 li) Nealev. ci-vpps, 4 Kay & J. 472. (9) Brydgea v. /«6«™«, cited Jachon 
 
 (k) Norway t. lo«,«, cited 1 MyL & v. Cator, 5 Ves. 68S Sarrow ScJwol y. 
 
 Ct 522 Alderton, ante, p. 257. Rex v. Butter- 
 
 (l) P,mys V. Blagrave, 4 De Gex, Mac. ton 6 T R. 555. £. I. Co. y- Vincent 
 
 & G. 448 2Atk. 82. Parrott y. Paimer, S My\. & 
 
 (m) Coffin V. Coffin, Jacob, 70. K- 6*0- 
 
 (n) Hindley v. Emery, L. K.,1 Eq. Ca. 52. 
 
262 WASTE. [CHAP.V. 
 
 his life, but allows a long period of time to elapse after his death 
 without seeking any redress, a court of equity will not, after this 
 long lapse of time, charge the estate of the prior tenant for life 
 with the burthen of making good the value of the timber so cut 
 by him, for a court of equity is atitse to the assertion of stale 
 demands (r). 
 
 Parties entitled to me in equity. — By 15 & 16 ViCt. c. 86, s. 42, 
 rule 5, it is enacted that in all suits for the protection of property, 
 and in all cases in the nature of waste, one person may sue on 
 behalf of himself and of all persons having the same interest. 
 
 (r) HwFcSwt v. White, 28 Beav. 311 ; 30 Law J., Ch. 681. 
 
263 
 
 CHAPTER Vi. 
 
 OF TEESPASS UPOW REAL PROPERTY— TITLE TO LANDS 
 AND TENEMENTS. 
 
 Section I. — Of trespasses upon lands amd 
 tenements. — What constitutes a trespass 
 — Abuse of a licence or authority ren- 
 dering parties trespassers ab itlitio — 
 Trespasses by cattle and domestic ani- 
 mals — Trespasses from want of fences 
 and from defective fences — Who is 
 bound to fence and repair fences — 
 Destruction of crops by rabbits and 
 pigeons — Damage done by trespassing 
 dogs — Trespasses where the surface 
 and subBoU constitute separate free- 
 holds — Forcible entry and dfetainer-^ 
 Trespasses upon the Boil of highways 
 — Continuing trespasses. 
 
 Section II. — Of the title to land, fences, 
 amd houndary-waUs. — Trial of title in 
 an action of trespass — Title to realty 
 from twenty years' possession — Limi- 
 tation of actions for the recovery of 
 realty — Accrual of the right on dispos- 
 session, or discontinuance of posses- 
 sion — What is a dispossession or disj 
 continuance of possession, causing the 
 time of limitation to begin to run — 
 Occupation of poor relations and ser- 
 vants — The possession of the servant 
 the possession of the master — Accrual 
 of the right on death, alienation, for- 
 feiture — Conversion of tenancy-at-will 
 into an indefeasible estate — ^Posses- 
 sion by cestui que .trust — Title of bonS 
 fide purchaaers of trust estates — ^Ac- 
 
 quisition of title by parties who gained 
 possession as tenants from year to 
 yeai: — Continued wrongful receipt of 
 reut^Possession of coparceners, joint- 
 tenants, tenants-in-commou, relations; 
 &c. — Acknowledgments of title — Dis- 
 abilities — Preservation of title by re- 
 entry and resumption of possessioii — 
 Rights of mortgagees, lay rectorsj &c. 
 — Title to the sea-shore, the soil of 
 fresh-water lakes,' highways, private 
 ways, &c., and waste laud adjoining 
 -^Title to the soil of towing-path^ dnd 
 artificial river-banks and canal-banks 
 ^Kight of property in trees and 
 bushes, boundary-waUs and fences, 
 hedges and ditches — Title to pews. 
 Section III. — Of actions for trespasses 
 upim realty. — ^Damage by rioters — 
 Parties to be made plaintiffs and de- 
 fendants in actions of trespass — ^Plead- 
 ings— Libetum tenementum — Leave 
 and licence — Pleas of justification^^ 
 Defences and evidence — ^Assessment of 
 damages — Surrounding circumstances 
 of aggravation — Apportionment of 
 damages as between tenant and rever- 
 sioner — ^Damages recoverable from one 
 of several \ co-trespassers — Tenants 
 holding over — Trespass for mesne pro- 
 fits — Prevention of trespasses by in- 
 junction. 
 
 SECTION I. 
 
 ' OF TRESPASSES UPON LANDS AND TENEMENTS. 
 
 What constitutes a trespass.— Every entry upon land in the occu- 
 pation or possession of another constitutes a trespass, in respect of 
 which an action for damages is maintainable, unless the act can 
 be justified in the exercise of some legal or personal authority or 
 
264 TEESPASS UPON REALTY. [OHAP. VI. 
 
 incorporeal right (ante, ch. 3). If a man's land is not surrounded 
 by any actual fence, the law encircles it with an imaginary 
 inclosure, to pass which is to break and enter his close. The mere 
 act of breaking through this imaginary boundary constitutes a 
 cause of action, as beiug a violation of the right of property, 
 although no actual damage may be done {ante, pp. 7 — 10). If the 
 entry is made after notice or warning not to trespass, or is a wilful 
 and impertinent intrusion upon a man's domestic privacy, or an 
 insulting invasion of his proprietary rights, a very serious cause of 
 action wiH arise, and exemplary damages will be recoverable {a) ; 
 but if there has been no insulting or wilful and persevering tres- 
 pass, and no actual damage done, and no question of title is 
 involved, the damages recoverable may be merely nominal, and the 
 trespass may be excused altogether, if it can be shown that it was 
 conamitted in self-defence, in order to escape from some pressing 
 danger or apprehended perU (&), or in defence of the possession of 
 a man's goods and chattels, or cattle, sheep, or domestic animals ; 
 for " if I drive my beasts along the highway, and you have open 
 uninclosed land adjoining the highway, and my beasts enter your 
 land and eat the herbage thereof, and I come freshly and chase them 
 out of your land, you shall not have any action against me, because 
 the chasing them was lawful" (c). So, if my goods have been 
 taken by you, and placed on your land, I may justify my entry on 
 your land for the purpose of re-taking them (d). 
 
 Abuse of a licence or autliority revdering a person a trespasser 
 ab initio. — ^When a person has a special privilege or authority to 
 enter upon lands to make a seizure of goods, and he exceeds his 
 authority, by breaking open the outer doors of a dwelling-house (e), 
 he becomes a trespasser ab initio. All his subsequent acts are 
 trespasses, and he is in the same position as if he was a perfect 
 stranger, acting without any colour of excuse or justification (/). 
 The same result follows whenever a person has a lawful authority 
 to enter lands for any purpose whatever, and he exceeds his 
 authority by doing on the land what he had no right to do ; or by 
 staying longer than he had a right to stay (g). 
 
 Every trespass upon land is, in legal parlance, an injury to the 
 land, although it consists merely in the act of walking over it, 
 and no damage is done to the soil or grass. Every injury to the 
 possession of the occupier is, in principle, an injury to the property; 
 and, therefore, if a man is unlawfully turned out of his dwelling- 
 la) Merest v. Harve;/, 5 Taunt. 443. (/) Attach t. SramweU, 32 Law J., 
 (i) 37 Hen. 6, 37, pi, 26. Q. B. 146. 
 
 (c) Catesty, arg. 6 Ed. 4, 7, pi. 18. ' (g) Com. Dig. Trespass (C), 2. Six 
 Goodwin v. Cheveley, 4 H. & N. 631. Carpenters' case, 8 Cro. 146a. ' Seed t. 
 
 (d) 2 Roll. Abr. 565, pi. i). Marrison, 2 W. Bl. 1218. Aitkenhead r. 
 («) Post, ell- 11> s. !• Blades, 5 Taunt. 197 ; post, ch. 14, s. 2. 
 
SECT. 1.] BY CATTLE OE OTHER ANIMALS. 265 
 
 house, that amounts, in point of law, to an injury to the dwelling- 
 house (h). 
 
 "Where an action was brought for trespassing on a close and 
 treading down the grass, and the defendant pleaded that he had 
 land lying next the said close, and upon it a hedge of thorns, and 
 he cut the thorns, and they, ipso initito, fell upon the plaintiff's land, 
 and the defendant took them off as soon as he could, and the plain- 
 tiff demurred, it was adjudged for the plaintiff : for though a man 
 doth a lawful thing, yet if any damage do hereby befall another, he 
 shall answer for it, if he could have avoided it (i). 
 
 If one man throw stones, rubbish, or materials of any kind, 
 on the land of another, or allows his cattle, poultry, or domestic 
 animals, to go upon another man's land, this is a trespass for 
 which he is responsible in damages, unless he can show that his 
 neighbour was bound by contract or prescription to fence for his 
 benefit (A). To pour water out of a pail into another man's yard, 
 or to fix a spout so as to discharge water upon another's land, or 
 to suffer filth to ooze through a boundary-wall and to run over 
 another's close or yard without his leave or permission, is a tres- 
 pass, unless a right of way over the adjoining close, or a right to 
 discharge water upon it, or a right for the passage of waste-water 
 and refuse through it, has been gained {t). 
 
 Trespasses hy cattle and domestic animals. — If a man's cattle, 
 sheep, or poultry, or any animals in which the law gives him a . 
 valuable property, trespass upon another's close, the owner of the 
 animals is, as we have seen (ante, p. 125), responsible for the 
 trespass and consequential damage, unless he can show that his 
 neighbour was bound to fence, and had failed so to do (m). And it 
 matters not whether the animals be at the time in his own imme- 
 diate care or charge, or under the care of his servants, or in the 
 custody of a stranger. In this last case, the stranger may be sued 
 as well as the owner for the trespass (n). But if my servant, 
 without my knowledge, takes my beasts and puts them in another's 
 land, my servant is the trespasser, and not I ; for, by his wilful deal- 
 ing with the beasts without any authority from me, he gains a special 
 property in them for the time, and for this purpose they become 
 his beasts (o). But if a wife so deals with her husband's cattle, the 
 husband himself is the trespasser, for his wife can gain no special 
 
 (h) Meriton v. Coomhes, 9 C. B. 972; (I) Reynolds v. ClarU, 2 Ld. Eaym. 
 
 ]9IiawJ., C. P. 336. 1399. 
 
 (i) Mich. 6, E. 4, p. 7, pi. 18. {in) SagnU v. Milicard, 21 Hen. 6, 
 
 lie) Williams, J., Cox v. Bwrhidge, 13 p. 33, pi. 20. Lee v. Riley, 34 Law J., 
 
 C B., N. S. 438; Holt, C. J., Mason v. C. P. 212. 
 
 Keeling, 1 Ld. Eaym. 608 ; 12 Mod. 336. (n) 2 Koll. Abr. 546, pi. 20. Dawtry 
 
 Dawtry v. Huggins, Clayton, 32. Vin. v. Huggins, Clayt. 32, pi. 56. 
 
 Abr. Tbkspass ^B). (o) 2 EoU. Abr. Tbespass, 553, pi. 25. 
 
266 TKESPASS UPON EEALTY. [CHAP. YI. 
 
 property in them as against the husband {p). A commoner who 
 puts his beasts upon a common which is not inclosed, is bound at 
 his peril to see that his beasts do not stray from the cpmmon and 
 trespass upon another man's land (j). 
 
 Trespasses from want <of fences and from defective fenms.^Wh.Bxe. 
 the plaintiff himself has contributed to the injury of which he 
 complains, he has no ground, as we have seen, for seeking compen- 
 sation in damages (ante, p. 19). If, therefore, a man is bound by 
 contract or prescription {ante, p. 125), to repair a fence between my 
 land and his, and he neglects to repair, and by reason thereof my 
 beasts get on to his land, this is a good justification to an action of 
 trespass brought by him (r). In such a case it is lawful for me to 
 go into my neighbour's land after my beasts, and chase them back 
 into my own land ; and I may plead this as a justification for the 
 trespass, because it was rendered necessary by the default of my 
 neighbour (s). 
 
 Who is hound to fence and repair fences.^—Whenevev two persons 
 have adjoining fields, and no hedge or fence between thehi, each 
 must take care that his own beasts do not trespass on his neigh- 
 bour (t), unless one proprietor has acc[uired a right or title, by grant 
 or prescription, to have the boundary-fence between his close and 
 that of the adjoining proprietor maintained and repaired at the 
 expense of such adjoining proprietor (u) (ante, p^ 125). "Every 
 man must use his own land so as thereby not to hurt another ; and 
 as, of common right, one is bound to keep his Cattle from trespass- 
 ing on his neighbour, so he is bound to use anything that is his so 
 as not to hurt another by such user. If, therefore^ a vendor sells a 
 piece of pasture lying open to another piece of pasture of which he 
 is possessed, the vendee is bound to keep his cattle from running 
 into the vendor's piece " (x). If a landowner, who has land abut- 
 ting upon a highway, neglects to fence the land from the highway, 
 so that cattle stray from the high-road and injure his crops, he 
 cannot immediately distrain the beasts' damage feasant, or treat 
 the owner of the beasts as a trespasser, but must either driye them 
 out himself, or allow a reasonable time to the drovers in charge of 
 them to get them out of the land {y)i But if the beasts are not 
 lawfully using the highway, if they have strayed awaiyfrom the 
 owner or his servants, and are trespassing upon the public thorough- 
 fare, and pass from thence on to the adjoining tminclosed land, 
 
 (p) 2 EoU. Atr. Trespass, 553, pi. 2. (t) Bayley, J., Boyle v. TarnMn, 6 B. & 
 
 (?) 20 Ed. 4, fo. 10b, cited in Sead v. C. 337 ; Dyer, 372b. • 
 
 Edwards, Zi Law J., C. P. 32. («) See Bwrher v. Whitdey, 34 Law J., 
 
 {r) 2 EoU. Abr. Tbespass, 565, pi. 3, Q. B. 212. 
 
 citing 19 Hen. 6, 34 ; 39 E. 3, 3b. (x) Tenant v. Goldwin, 6 Mod. 314. 
 
 (s) Ih. pi. 4. (j/) Ooodwm y. Cheveley, 4 H. & K 
 
 631 ; 28 Law J., Exch. 298. 
 
SECT. 1.] BY RABBITS; PIGEONS, DOGS, ETC. 267 
 
 this is a trespass for whicli the owner of the beasts is responsible (z). 
 And whenever one landowner is bound to maintain and repair a 
 fence for the benefit of the adjoining landowner, and cattle escape 
 out of the land of the latter, and trespass upon the land of the 
 person who ought to have kept up the fence, it is no excuse that 
 the fences were out of repail, if the beasts were trespassers in the 
 place from whence they came. If it be a close, the owner of the 
 cattle must show an interest or a right to put them there. If it be 
 a way, he must show that he was lawfully using the way (a). 
 
 Destruction of crops hy rahhits and pigeons. — If a man encourages 
 the growth of wild rabbits upon his land, and forms "coney burrows " 
 there, and the rabbits stray from his land to the land of his 
 neighbour, this is no trespass for which the breeder of the rabbits 
 is responsible, for when they have left his latld they are not then 
 his rabbits doing damage. Being animals ferm naturce, he has no 
 more'property in them after they have left his soil than in the birds 
 of the air, which may breed in one man's land and devour the crops 
 of another (&). The only remedy, therefore, for a person whose 
 crops are eaten by wild rabbits is the capture and destruction of 
 the rabbits. Commoners may destroy rabbits which come upon 
 tbe common from the adjoining land, not being the lord's land (c) ; 
 but they have no remedy against th<3se who breed .them (d). The 
 same law prevails with regard to pigeons ; " if they come upon my 
 land I may kill them," but I have no remedy against any one for 
 breeding thefn (e). 
 
 BaTtiage done, hy intruding dogs. — A man is not, by the common 
 law, considered to have the same valuable property in a dog as in 
 cattle and sheep ; and it has been held that if a man's dog goes 
 into his neighbour's garden, and spoils and injures his crops, no 
 action will lie (/), unless the dog is of a peculiarly mischievous 
 disposition, so as to be unfit to be at large, and this is known to 
 the master {g). If the master accompanies the dog, and is himself 
 a trespasser, the damage done by the dog is consequential upon the 
 trespass by the master Qi). Owners of dogs in Scotland and .Ireland 
 have recently been made liable for injuries done to sheep and cattle 
 by their dogs : and all persons who harbour dogs on their premises 
 are deemed to be the owners of the dogs, unless they can prove 
 
 (z) 2 KoU. Atr. 565, pL 7. Dovaaton v. (e) DeweU v. Swndm, Cro. Jac. 490. 
 
 Payne, 2 H. Bl. 528. Bayley, J., Mmnam t. Moclcett, 2 B. & 
 
 la) 'Dme^r. Payne, ut sup.; A.-DaTX. C. 939. 
 
 3 Wils 126 (/) Holt, C.J., Mason v. Kedvn^g, 12 
 
 (J) ioulton's case, 5 Co. 104a; Cro. Mod. 336. Brown v. Giles, 1 0. & P. 
 
 Eliz. 547. , . 11?-, 
 
 8.1 
 
 (6) Cooper v. Ma/rshaU, post, ck 3, (g) Mead v. Edwards, ante, p. 266. 
 
 (A) Bedkwith v. Shordihe, 4 Burr. 2093. 
 
 id) HimUy t. WUhmson, Cro. Car, As to damage done ty ferocious dogs, see 
 3g7_ ' mte, pp. 212, 213. 
 
268 TRESPASS UPON REALTY. [CHAP. VI. 
 
 the contrary, and show that the dog remained on their premises 
 without their knowledge (i). 
 
 Trespasses where the surface and subsoil of land constitute separate 
 freeholds. — If it appears that the plaintiif has parted with the vesture 
 and herbage, and right to the surface of the land, and retains only 
 an interest in the subsoil, he cannot maintain an action for 
 trespasses upon the surface (h) ; but if any person digs holes 
 through the surface, and trespasses upon the subsoil, he is then 
 entitled to an action for damages (J). If land is demised generally 
 to a lessee, who enters under the lease, he is. in possession of both 
 the surface and the minerals ; but he has no right to work the 
 minerals without the licence of the lessor, neither can the lessor 
 work them without the permission of the lessee. If the adjoining 
 occupier sinks a mine in his own land, and makes lateral exca- 
 vations, trespassing upon the minerals of the lessee without 
 disturbing the surface of the land in his occupation, the lessee may, 
 nevertheless, maintain an action for the trespass and injury to his 
 possessory interest, and the lessor may maintain an action for the 
 injury to his reversionary estate. If the surface and minerals have 
 been dissevered in title, and have become separate tenements, then 
 the grantee or owner of the minerals is the only person entitled to 
 sue in respect of trespasses upon them (m). 
 
 Forcible entry and detainer. — At common law, if a man had a 
 right to the possession of land, and a right to enter thereon, he 
 might enter and obtain possession with force and arms, and retain 
 possession by force, which gave an opportunity, we are told, to 
 powerful men to enter upon land under pretence of feigned titles, 
 and forcibly eject their weaker brethren (w), and therefore it was 
 enacted (5 Eich. 2, c. 7), " that none thenceforth make entry into 
 any lands and tenements but in cases where entry is given by the 
 law, and in that case not with strong hand, nor with multitude of 
 people, but only in a peaceable and easy manner " (o). A mere 
 trespasser cannot, by the very act of trespass, immediately, and 
 without acquiescence on the part of the landowner, become possessed 
 of the land upon which he has trespassed," and which he tortiously 
 holds, and he may consequently be expeUed by main force {p) ; 
 but if he is allowed to continue on the land, and the landowner 
 sleeps upon his rights, and makes no effort to remove him, he will 
 gain a possession, wrongful though it be, and cannot be forcibly 
 
 (i) 25 & 26 Vict. c. 59; 26 & 27 Vict. (Dvke of) v. Graham, h. E., 2 Sc. App. 
 
 c. 103, ante, p. 23. 166. 
 
 (k) Cox T. Mousley, 5 C. B. 549. (n) Bac. Abr. Foboible Entbt. 
 
 {1} Cox T. Glwe, ib. 549, 553 ; 17 Law (o) As to reooveiy of possession by per- 
 
 J., C. P. 162. sons forcibly expelled, see 8 H. 6, c. 9 ; 
 
 (m) Keyse v. Powell, 2 Ell. & Bl. 144; 31 Eliz. c. 11 ; 21 Jac. 1, o. 15. 
 
 22 Law J., Q. B. 305. Lewis t. Branth- (p) Browne v. Dawson, 12 Ad. & E. 
 
 waite, 2 B. & Ad. 437. See HamUton 629. 
 
SECT. l.J ON SOIL OF HIGHWAY. 269 
 
 ejected. A mere intruder -upon land, who has been allowed to run 
 up a hut and occupy it, has no right to the hut or to the possession 
 thereof, and the landlord may enter and pull down the hut about 
 the ears of the occupants and remove the materials (q). But the 
 dwelling-houses of strangers cannot be pulled down whilst people 
 are living in them, for the mere purpose of abating a nuisance or 
 preventing tlie enjoyment of some incorporeal right, such as a right 
 of common (r). The rightful owner cannot, in any case, when he 
 has a right of entry, whether legal or equitable, be made responsible 
 in damages for a trespass upon his own land, for he is no trespasser 
 if he has a right to go upon it (s) ; but if he assaults and expels 
 persons who, having originally come into possession lawfully, 
 continue to hold unlawfully, after their ,title to occupy has been 
 determined, he may be made responsible for the assault, and be 
 indicted for a forcible entry (t), but he cannot be made responsible 
 in damages for the expulsion (u). Having a right to enter upon 
 his own land, he may do so peaceably ; and if his entry is resisted 
 by force, he may, it seems, repel force by force (v). 
 
 " Where a breach of the peace," observes Parke, B., " is com- 
 mitted by a freeholder, who, in order to get into possession of his 
 land, assaults a person wrongfully holding possession of it against 
 his will, although the freeholder may be responsible to the public, 
 in the shape of an indictment for a forcible entry, he is not liable 
 to the other party. It is a perfectly good justification to say that 
 the plaintiff was in possession of the land against the will of the 
 defendant, who was owner, and that the defendant entered upon it 
 accordingly" («). 
 
 Of trespasses upon the soil of highways set out auA dedicated to 
 the public hy private proprietors. — By setting out a highway, and 
 dedicating it to the use of the public, the owner of the land over 
 which the right of way is granted does not thereby part with 
 the property in the soil. The landlord, in such a case, has full 
 dominion and control over the land subject to the easement, and 
 may recover it in ejectment (y), or bring an action for a trespass 
 against any person who deposits stones or rubbish upon the soil, or 
 constructs a bridge over or upon any part of the highway, or 
 infringes in anywise upon the ordinarj'- proprietary rights of the 
 owner of the soil (z). Nor do the Highway Acts or the Metropolis 
 
 (g) Davison v. WiUon, 11 Q. B. 890 ; H J^ewton v. Harland, 1 Sc. N. B. 
 
 "m /o^'^v. /oS' 31 Law J., Exch. ^^% Hc^ey v. Bridges, U M. & W. 
 (T) joms V. J mux, 442 ; 1 Exch. 261. Damson v. WiUon, 
 
 % Davison t. Wilson, mpra. Alien r. 11 Q. B. 890 Meril^ny.Coomles, 9 0. 
 m 77 T 1? K Wirnii 187 B. 787 ; 19 liaw J., U. if. ado. 
 
 %) Pollen v. Brewer. 7 0. B. N. S., 373. Zade v. Shepherd, 2 Str. 1004. Every v. 
 
270 TRESPASS UPON EEALTY. [CHAP. VI. 
 
 Local Management Acts interfere with this right, or the fact that 
 the public have appropriated part of the highway to one kind of 
 passage, viz., for carriages, and another part to another, e.g. to foot- 
 passengers. For the reasonable use and enjoyment therefore of his 
 own premises the owner may make a carriage-way across the foot- 
 way {a). And the same rule prevails with regard to land over 
 which any other privilege or easement has been granted, to 
 particular individuals, or to the public at large, such as a stall in 
 a market (&). 
 
 Of cantinuing trespasses. — If a man throws a heap. of stones, or 
 builds a wall, or plants posts or rails on his neighbour's land, and 
 there leaves them, an action will lie against him for the trespass, 
 and the right to sue wiU continue from day to day, till the 
 incumbrance is removed. An action may be brought for the 
 original trespass in placing the incumbrance on the land, and 
 another action for continuing the thing so erected ; for the recovery 
 of damages in the first actiqn, by way of satisfaction for the 
 wrong, does not operate as a purchase of the right to continue the 
 injury (c). 
 
 SECTION II. 
 
 OF THE TITLE TO LAND, FENCES, AND BOUNDARY-WALLS. 
 
 Proof of possession of land and pernancy of the rents is prima 
 facie evidence of a seisin in fee of the person possessed, the presumption 
 being in favour of the fee and not of any less estate (d), until it is 
 rebutted by a contrary presumption arising from the surrounding 
 circumstances. If, therefore, a person is shown to be in receipt of 
 rent, he is presumed to be entitled to the reversion in fee of the 
 land in respect of which the rent is received, unless the rent is so 
 disproportioned to the annual value of the property, as to lead to 
 the presumption of its being a mere quit rent (e). Thus, in an 
 action on the- case for an injury to the plaintiff's reversion in 
 cutting down trees on land in the possession of his tenant, proof 
 of payment of rent by the latter to the plaintiff is primd, facie 
 evidence of the plaintiff being the reversioner, and of the trees 
 being his property (/). 
 
 A, 26 Law J., Exch. 345. See 27 Sowyer v. Coo}:, i C. B. 236. 
 
 ^ 28 Viot. 0. 101, s. 51, ante, p. 225. (d) Jayne v. Price, 5 Taunt. 326. J)oc 
 
 (a) St. Ma/ry Neimngton r. Jaeol3,s, L. V. Penfold, 8 C. & P. 5,37. 
 
 R., 1 Q. B. 47. (e) Doe v. Johnson', Gow, 173. Rey- 
 
 (6) Mayor of Northampton t. Ward, 1 nolds v, EcynoUk, 12 Ir. Eq. Eep. 181. 
 
 Wil.8, 114., (/) Daintry v. Brochlehurst, 3 Bxch. 
 
 (c) ijfeJmw T, Ifjfeon, 10 Afl, & K, 603, 809, 
 
SECT. 2.] LIMITATION OF ACTIONS. 271 
 
 Trial of title in an action of trespass. — If the defendant, in an 
 action for a trespass committed by liim upon the land or messuage 
 of the plaintiff, pleads that the close or land in which the trespass 
 was committed was the soil and freehold of the defendant, the 
 plaintiff's title to the property is in issue, and also his right of 
 possession {post, s. 3), and the defendant may, under this plea, bring 
 forward evidence to show that he had a right to enter upon the 
 close because it was his freehold, or because it has been demised to 
 him, or because he has obtained an indefeasible title under the statute 
 for the limitation of actions and suits relating to real property (g). 
 
 Title to realty from, twenty years' possession — Limitation of 
 actions for the recovery of realty. — By 3 & 4 Wm. 4, c. 27, s. 2, 
 entitled " An Act for the Limitation of Actions and Suits relating 
 to Eeal Property," it is enacted, that no person shall make an entry 
 or distress, or bring an action to recover any land or rent, but 
 within twenty years next after the time at which the right to make 
 such entry or distress, or to bring such action, shall have first 
 accrued to some person through whom he claims ; or, if such right 
 shall not have accrued to some person through whom he claims, 
 then within twenty years next after the time at which the right to 
 make such entry or distress, or to bring such action, shall have first 
 accrued to the person making or bringing the same (A). Where 
 the person really entitled to an estate is in possession but as 
 agent for another, to whom he, under a mistake, accounts for the 
 rents, he has no right of entry without giving up his agency ; the 
 person in receipt of the rents, therefore, may acc[uire a title by long 
 possession as against him {i). An encroachment made by a tenant 
 is made for the benefit of his landlord, and tire statute, therefore, 
 does not apply to the land enclosed till the termination of the 
 tenant's interest (j). 
 
 Accrual of the right on dispossession or discontinuance of pos- 
 session. — When the person claiming such land or rent, or some 
 person through whom ho claims, has, in respect of the estate or 
 interest claimed, been in possession or receipt of the profits of the 
 laud, or in receipt of the rent, and has; while entitled thereto, been 
 dispossessed, or has discontinued such possession or receipt, then 
 the right is to be deemed (s. 3) to have first accrued at the time of 
 such dispossession or discontinuance of possession, or at the last 
 time at which any profit or rent was so received. 
 
 What is a dispossession or discontinuance of possession causing 
 the time of limitation to begin to rmi.—The word discontinuance 
 
 (q\ As to the registration of title to (») Waiams v. Pott, L. E., 12 Bq. Ca. 
 
 real estate, see 25 & 26 Vict. 0. 53 ^^^ „„., it t. ■ t^ i 
 
 [h] Bralsington T, LUweUyn, 27 Law J., 0) Whitnwre t. Htmfhms, I/. R., 7 
 
272 TRESPASS Uf ON REALTY. [CU.A.P. VJ. 
 
 of possession means an abandonment of possession by one person, 
 followed by the actual possession of another person ; for if no one 
 succeed to the possession vacated or abandoned, there could be no 
 one in whose favour, or for whose protection, the act would operate. 
 To constitute discontinuance, there must be both dereliction by the 
 person who has the right and actual possession, whether adverse or 
 not, to be protected (k). Therefore, where the owner of the fee 
 simple of a close, with a stratum of coal and other minerals under 
 it, has conveyed the surface to one under whom the plaintiff claims, 
 reserving the minerals and a right of entry to get them to another, 
 under whom the defendant claims, the title and right of entry of 
 the grantees of the mines is not barred by simple non-nser for 
 more than forty years, no otherperson having worked or been in 
 possession of the mines (l). 
 
 Occupation by poor relations and servants — The possession of the 
 servant the possession of the master. — A landowner who accommo- 
 dates a poor relation with a cottage and garden, does not necessarily 
 part with the possession of the property occupied by siich poor 
 relation. The latter may have the mere custody of the property ; 
 his possession, such as it is, may be the possession of the landowner ; 
 and the latter may retain and continue to exercise his proprietary 
 and possessory rights so as to rebut the presumption that he has 
 parted with the possession of the property, and prevent the opera- 
 tion of the Statute of Limitations (m). If a landowner allows his 
 gardener, or servant, or workman employed upon his estate, to live 
 in a cottage thereon rent-free, the possession of the servant is the 
 possession of the master, and the servant has no greater interest 
 in the land than a coachman who occupies part of his master's 
 -coach-house, or sleeps over his master's stables; and no title can 
 be gained by such an occupation and enjoyment of the master's 
 property, however long it may be continued. And if a landowner, 
 from motives of kindness or charity, allows a dependent, relative, 
 or friend to occupy a cottage and land upon his estate, and the 
 landowner, during such occupation, continues to exercise acts of 
 ownership over the land so occupied ; if he repairs the buildings, 
 cuts down or plants trees, or causes drains to be made through the 
 land, or quarries and carries away stone, all these acts of dominion 
 exercised by him over his own property show that he has never 
 parted with the possession of it, although he has allowed another 
 person to occupy it, and share with him in the use and enjoyment 
 thereof {n). A society, also, which allows its agent to live on its 
 
 (i) Blackburne, C. J., M'DonneU v. Runt v. CoUon, 3 M. & Sc. 791. Doe v. 
 
 M'Kinty, 10 Irish Law Eep. 516. Stanton, 2 B. & Aid. 371. Mayhem r. 
 
 (i) Smith V. Lloyd, 23 Law J., Exch. SuUU, i El. & BL 353. 
 
 194; 9 Exch. 571. (») Turner-^. Doe, 9 M. & W. 645. 
 
 (m) Bertie v. Beaumont, 16 East, 33. 
 
SECT. 2.] LIMITATION OF ACTIONS. 278 
 
 premises rent-free does not confer any estate or interest in the land 
 upon the latter, but the occupation is merely the occupation of a 
 servant (o). 
 
 Accrual of the right on death, alienation, forfeiture, &c. — Pro- 
 vision is also made (s. 3) for the accrual of the right, and the 
 commencement of the period of limitation when the person claim- 
 ing the land or rent claims the estate or interest of some deceased 
 person, who continued in possession or receipt of the profits of the 
 land or rent in respect of the same estate or interes;t until the time 
 of his death, and was the last person entitled to the estate or 
 interest in such possession or receipt ; also when such person claims 
 in respect of an estate or interest in possession granted, or assured, 
 hy any instrument other than a will to him, or some other person 
 through whom he claims, by a person, being in respect of the same 
 estate or interest in the possession or receipt of the profits of the 
 land, or in receipt of the rent, and no person entitled under such 
 instrument has been in possession or receipt ; also when the estate 
 or interest claimed has been an estate or interest in reversion or 
 remainder, or other future estate or interest, and no person has 
 obtained possession or receipt of the profits of the land, or the 
 receipt of rent in respect of such estate or interest; also when 
 the claimant, or the person through whom he claims, has become 
 entitled by reason of any forfeiture, or breach of condition. 
 
 Provision is made (ss. 4, 5) for giving new rights of entry, &c., 
 to remaindermen and reversioners in certain contingencies. 
 
 Conversion of defeasible tenancies-at-will into an indefeasible title 
 — Possession of land hy a cestui que trust. — When any person is in 
 possession or receipt of the profits of land or rent as tenant-a,t-will, 
 the right of the person entitled subject thereto, or of the person 
 through whom he claims, to make an entry or distress, or bring an 
 action to recover such land or rent, is to be deemed (s. 7) to have 
 first accrued either at the determination of such tenancy or at the 
 expiration of one year next after the commencement thereof, at 
 which time such tenancy shall be deemed to have determined {p). 
 But it is provided that no inortgagor or cestui que trust shall be 
 deemed to be a tenant-at-will to his mortgagee or trustee within 
 the meaning of that clause (3). This proviso is applicable only 
 to cases of express and declared trusts (r) ; so that a person let into 
 possession of and holding lands under an agreement to purchase, 
 is not a cestui que trust within this proviso (s). A cestui que trust 
 ijiay, in a certain sense, be tenant-at-will to his trustee, if he has 
 
 (0) WhUe v. Bailey, 10 C. B., N. S. (q) See Thorp v. Facet/, post, p. 278. 
 
 227 ; 30 Law J., 0. P. 253. ^ (»•) Drwmmond v. Sant, L. R., 6 Q. B, 
 
 (p) Boe V. Moore, 9 Q. B. 561. See; ?63. 
 Dayy. Day, L. E., 3 T. C. Ca. 751. {^} Doe v. Boole, 4 M, & Gr. 31 . 
 
274 TRESPASS OW EEALTY. [CHAP. TI. 
 
 been let into possession of the trust estate by the latter, although 
 he is not a tenant-at-will capable df acq^uiring a title by reason of 
 his possession, within the third section of the statute. The posses- 
 sion of the cestui que trust is, in fact, the possession of the trustee, 
 and the time of limitation will not run against the latter, so long 
 as the relationship of trustee and cestui que trust subsists (t). But 
 this applies only to the case where the cestui que trust is the actual 
 occupant. If he is merely allowed to receive the rents or other- 
 wise deal with the estate in the hands of the occupying tenants, he 
 stands in the relation only of an agent or bailiff of the trustees, 
 who choose to allow him to act for them in the management of the 
 estate ; and if the actual occupier is, under such circumstances, 
 permitted to occupy for more than the twenty years prescribed by 
 the statute, without paying rent, the trustees lose their title, and 
 the actual occupier gains the title exactly as in an ordinary case of 
 landlord and tenant (u). But if the cestui que trust has been let 
 into possession by the trustees, the tenancy between him and his 
 trustees win not be determined by- his underletting the. premises, 
 unless the trustees have notice of such nnderletttug ; fdr though 
 the general rule is that a tenancy-at-will is not assignable, because 
 the transfer determines the tenancy, yet the rule is subject to the 
 qualification that a tenant-at-wiU cannot at common la'w determine 
 his tenancy by transferring his iuterest to a thitd party, without 
 notice to his landlord (x). 
 
 Title of bond-fide purchasers of trust estates. — When any land is 
 vested in a trustee upon any express trust, the tight of the cestui que 
 trust, or any person claiming through him, to bring a suit against the 
 trustee, or any person claiihiug through him, to recover such land; is 
 (s. 25) to be deemed to have first accrued at, and not before^the time at 
 which such land shall have been conveyed to a purchaser for a valu- 
 able consideration, and shall then be deemed to have accrued only as 
 against such purchaser, and any person claiming through him {y). 
 
 Acquisition of title hy persohs vjho Obtained possession originally 
 as tenants from year to year. — When any person is in possession or 
 receipt of the profits of any land or rent, as tenant from year to 
 year, or other period, without any lease in writing, the right of the 
 person entitled subject thereto, or of the person through whom he 
 claims, is to be deemed (s. 8) to have first accrued at the determina- 
 tion of the first of such years or other periods, or at the last time 
 when any rent, payable in respect of such tenancy, shall have been 
 received (which shall last happen). A tenant holding a house of 
 
 (t) Garrard -i. Tuck, 8 C. B. 252 ; 18 (a;) Ca/rpenter v. CoUins, Yelv. 73. 
 
 L. J., C. P. 338, Drummond v. Sant, aupt-a. Pinhorn v. Souster, 8 Exeh. 763.' Mellmg 
 
 (if) Mellinr) v. Leah, 16 C. B. 669 ; 24 v. Leak, 16 C. B. 669. 
 
 Law J., C. P. 187. Doe t. PUUvps, lO (2/) See Walters v. Wdh, L. B., 9 Eq; 
 
 Q. B. 134. ■ Ca. 83j 5 Ch. App. 531. 
 
SECT. 2.] , LIMITATION OF ACTIONS. 275 
 
 parish officers upon the condition of sweeping the church, or ringing 
 the church-bell, is a tenant from year to year within this section of 
 the. statute (s). The M'ords " lease in writing," are construed to 
 mean not merely a demise in writing, but such an instrument as 
 passes an interest (a). Verbal declarations and admissions made by 
 a tenant in possession of his having paid rent, and of the person to 
 whom it was paid, are admissible in evidence to establish the fact 
 of the receipt of rent within this section (6). 
 
 Ufect of coTlfinued wrongful receipt of rent. — It is also enacted 
 (s. 9), that when any person shall be in possession or receipt of the 
 profits of any land, or in receipt of any rent, by virtue of a lease 
 in writing, by which a rent of 20s. or upwards shall be reserved, 
 and the rent shall have been received by some person wrongfully, 
 {i.e., without any title, not wrongfully in the sense of an improper 
 intention to deprive others- of their property (c) ) claiming to be 
 entitled to such land or rent in reversion, immediately expectant 
 on the determihatjon of such lease, and no payment in respect of 
 the tent reserved by such lease shall afterwards have been made 
 to the person rightfully entitled thereto, the right of the person 
 entitled to such land or rent, subject to such lease, or of the person 
 through whom he claims, to make an entry or distress, or bring an 
 action, after the determination of such lease, shall be deemed to 
 have first accrued at the time at which the rent was first so received 
 by the person wrongfully claiming ; and no such right shall be 
 deemed to have first acctued upon the detei?mination of such lease 
 to the person rightfully entitled. 
 
 Entry upon land, and continued claim. — It is further enacted 
 (s. 10), that no person shall be deemed to have been in possession 
 of any land within the meaning of the Act, merely by reasoii of his 
 having made an entry thereon ; and (s. 11) that no continual or 
 other claim, upon or near any land shall preserve any right of 
 making an entry, or distress, or of bringing an action. 
 
 Possession of coparceners, joint-tenants, and tenanls-in-common. — 
 When any one or more of several persians entitled to any land or 
 rent as coparceners, joint-tenatlts, or tehants-in-common, shall have 
 been iii possession or receipt of the entirety, or more than his or 
 their undivided share, for his or their own benefit, or for the benefit 
 of any person other than the persons entitled to the other shares of 
 the land or rent, such possession Dr receipt is not to be deetned to 
 have been the possession or receipt of or by such last-mentioned 
 persons, or any of them. 
 
 (z) Dot V. Benliam, 7 Q. B. 982. Doe (6) Doe v. Beckett, 4 Q. B. 605 ; 12 
 
 V; Billett, ib. 983. Doe v. Hinde, 2 M. & Law J., Q. B. 236. 
 Eob 441 (") WUlia,mB v. Pott, L. E., 12 Bq. Ca. 
 
 ■ (a) Doe V. Oower, 17 Q. B, 589 ; 21 149. 
 Law J., Q. B. 57. 
 
 T 2 
 
276 TRESPASS ON KEALTY. [CHAP. VI. 
 
 Possession of, younger brothers or relations. — "When a younger 
 brother or other relation of a person entitled as heir to the pos- 
 session or receipt of the profits of land, or to the receipt of rent, 
 enters into the possession or receipt thereof, such possession or 
 receipt is not to be deemed to be the possession or receipt of the 
 heir. 
 
 AcJcnovdedgments of title. — By s. 14 it is further enacted, that 
 when any acknowledgment of the title of the person entitled to 
 any land or rent shall have been given to him or his agent in 
 writing, signed by the person in possession or in receipt of the 
 profits of such land, or in receipt of such rent, then such possession 
 or receipt by the person by whom such acknowledgment shall 
 have been given shall be deemed to be the possession or receipt of 
 the person to whom or to whose agent such acknowledgment shall 
 have been given at the time of giving the same ; and the right of 
 such last-mentioned person, oi any person claiming through hiip, 
 shall be deemed to have first accrued at, and not before, the time 
 at which such acknowledgment, or tjhe last of such acknowledg- 
 ments, if more than one, was given (i^). 
 
 Ecclesiastical and eleemosynary corporations are allowed (s. 29) 
 two incumbencies, or sixty years, for the recovery of land. 
 
 Disabilities. — Ten years are allowed (s. 16) in all cases for per- 
 sons under disability from the time the disability ceases, but no 
 action is to be brought (s. 17) after forty years. The disabilities 
 enumerated as having the effect of extending the period of limita- 
 tion, are infancy, coverture, idiotcy,- lunacy, unsoundness of mind, 
 and absence beyond seas, at the time the right to make an entry or 
 distress, or bring action to recover any land or rent, shall have first 
 accrued. The extension of the period of limitation is granted also 
 from the death of the person under disability. If a person before 
 the first disability, e.g., infancy, be removed, becomes subject to 
 another, e.g., by marriage, the ten years run from the date of the 
 removal of the last disability (e). 
 
 By section 26 it is enacted that, in case of concealed fraud, the 
 right of a person to bring a suit in equity for the recovery of land 
 or rent, shall be deemed to have first accrued at the time at which 
 such fraud shall, or with reasonable diligence might, have been first 
 discovered (/). 
 
 Preservation of the rights of the landowner by re-entry and resump- 
 tion of possession of lands before the expiration of the period of limi- 
 tation. — We have seen that, by s. 7 of the 3 & 4 Wm. 4, c. 27, when 
 
 (d) Ley v. Peter, 3 H. & N. 301 ; 27 (e) Borrmes v. EUison, L. B., 6 Exoh. 
 
 Law J., Exch. 239. iSoode v. Joh, 28 ib. 328. 
 
 Q. B. 1. Pursdon v, Clogg, 10 M. & W. ( f) See Ohethm t. Howre, L. E., 9 Eq. 
 
 576. , Ca, 671. 
 
SECT. 2.] LIMITATION OF ACTIONS. 277 
 
 any person is in possession of land as tenant-at-will, the right of 
 the landowner to enter upon the land, or recover it hy action, 
 accrues either at the determination of such tenancy, or at the 
 expiration of one year after the commencement thereof, at which 
 time the tenancy, if not previously determined by the act of the 
 landowner, shall be deemed to have determined {ante, p. 273). We 
 have seen, also, that no person is to be deemed to have been in 
 possession of land Avithin the meaning of the Act, merely by reason 
 of his having made an entry thereon, and that no continual claim 
 upon, or near to land, shall preserve any right of making an entry 
 or bringing an action {ante, p. 275). "The making an entry," 
 observes Cresswell, J., "amounts to nothing unless something is 
 done to divest the possession out of the tenant and revest it in fact 
 in the lord." Where, therefore, the defendant has inclosed a piece 
 of land from the waste and built a hut thereon, and the lord of the 
 manor entered upon the premises, and said he took possession in 
 his own right, and ordered a stone to be removed from the hut, and 
 a portion of the fence to be thrown down, but did not turn the 
 defendant and his family out of the cottage, it was held that this 
 was no interruption of the possession of the defendant, and. no 
 vesting of the possession in himself, and that the lord had not 
 done enough for the assertion of his rights, and for preventing the 
 defendant from gaining a title imder the statute {g). 
 
 Where, on the other hand, the overseers of a parish put the 
 plaintiff into possession of a parish cottage as a parish pauper, and, 
 he having continued in possession for a long time without paying 
 any rent, the overseers in 1839 entered upon the cottage, to prevent 
 him from gaining a title under the statute, and turned out both him 
 and his family and removed his furniture ; but, on the same day, 
 the plaintiff resumed possession of the cottage, and continued in 
 possession till July, 1852, when the overseers again entered, and, 
 he refusing to deliver up the cottage, they destroyed it, and the 
 plaintiff then brought an action of trespass, and the defendants 
 pleaded that the cottage was not the property of the plaintiff, it 
 was held that the right of the defendants was not barred, as 
 they had in 1839 actually dispossessed the plaintiff, and resumed 
 possession of the cottage, and clothed themselves with their original 
 
 rights. 
 
 "Whether the plaintiff," observes Lord Campbell, "during the 
 interval between 1839 and 1852 was tenant-at-will or tenant-at- 
 sufferance, or a mere trespasser, seems to be wholly immaterial, so 
 that the overseers had not in the interval done anything to preju- 
 dice the right of entry which vested in them in 1839. It is 
 
 ig) Doe T. Coombes, 9 C. B. 718 ; 19 Law J., C. P. 906. Srassmgton t. Llewellyn, 
 27 Law J., Bxth. 297. 
 
278 . TRESPASS ON EEALTY. [CHAP. VI. 
 
 admitted that the plaintiff would have had no title had the jiuy 
 found that his subsequent ocrapation was under a new tenancy-at- 
 will ; but how would 't|ais at all haye affpcted the new right of entry 
 which had accrued in April, 1839 ? An atterapt was made to do 
 away with the effect of ^hat then happened, by resorting to section 
 10 of the statute, which enacts, 'that no person shall be deemed to 
 have been in possession of any land within the meaning of this 
 Act, merely by reason of having made an entry therepn.' But this 
 evidently applies to a mere entry, as for the purpose of avoiding a 
 fine, which may be made by stopping on any corner of the land in 
 the night-time and pronouncing a few words, without any attempt, 
 or intention, or wish to take possession. In the present case pos- 
 session was actually taken by the overseers animo possidfndi ; and 
 whether possession was retained by them an hour or a week must, 
 for this purpose, be immaterial " Qi). So, where a tenant-at-wiU 
 refused to go out, and was served with a writ of ejectment, and ai; 
 arrangement was then come to by which he gave up part of the 
 land, and was allowed to remain in a cottage during his life, 'it wag 
 held that a new tenancy-at-will commenced on the mailing pf this 
 arrangement, and that the time of limitation began to run one year 
 after the making thereof {%). 
 
 Rights of mortgagees. — The 7 Wni. 4 & 1 Vict. c. 28^ provides 
 that it shall be lawful fpr any persdn claiming under ^ny mortgage 
 of land to make an entry, or bring an action or suit to recover such 
 land, at any time within twenty years next after the last payment 
 of any part of the principal money or interest secured by such 
 mortgage, although more than twenty years may have elapsed sinpe 
 the time at which the right to make such entry, or bring such 
 action or suit, shall have first accrued (k),. Where in ejectment 
 for a house by mortgagee against mortgagor it was proved that in 
 1847 a declaration in ejectment had been served on the mortgagor, 
 who was in possession, and that judgment was signed, and that 
 shortly afterwards the mortgagor ceased to have possession of the 
 land (which had been mortgaged with the house), but retained pos- 
 session of the house, it was held that there was no evidence of 
 possession by the mortgagee, or of the creation of a new tenancy 
 under hini in 1847, so as to prevent the operation of the statute (l): 
 
 Title to the church, chancel, and churchyard. — ^Although the 
 freehold of the church find chancel, as well as the freehold of the 
 churchyard, is in the rector, whether spiritual or lay, yet the right 
 of possession is in the incumbent, who is responsible to the ordi- 
 
 (7i) Mndail v. Stevens, 2 Ell. & Bl. (k) Doe v. Massey, 17 Q. B. 381 ; 20 
 
 650 ; 23 Law J., Q. B. 71. Law J., Q. B. 434. 
 
 (i) Loclee v. Matthews, 13 C. B., N. S. (I) Thorp v. Faeey, 35 Law J., C. P. 
 
 753 ; 32 Law J., C. P. 98. 349. 
 
SECT. 2.] TITLE TO CHURCH, CHANCEL, AND CHURCHYAED, 279 
 
 nary for the celebration . of divine service (m). Where there is a 
 spiritual rector he has, when inducted, corporeal possession of the 
 church for the use of the parishioners. When there is no spiritual 
 rector, the vicar or the perpetual curate has upon induction the like 
 possession for the like purposes {n). .A lay rector, therefore, has 
 no right as against the vicar to the possession of the church or 
 chp.ncel (o). He is, however, primcl, facie, entitled to the freehold 
 of the churchyard, and to the trees and herbage growing there, 
 although where the vicar has hi^d the enjoyment of the pasturage 
 for a long period, it would be presumed to be part of his original 
 endowment. It is questionable, however, whether such a presump- 
 tion would extepd to a, perpetual curate, althougli for spiritual 
 purposes he has, like the vicar, uncontrolled possession of the 
 church and churchyard (p). And the vicar, it seems, has no right, 
 strictly speaking, to feeg for the erection of monumental tablets, or 
 for the construction of vaults in the chancel (q). 
 
 The freehold of a churchyard, which has been closed under an 
 Order in Council, remains in the rector or vicar, in whom it was 
 vested at the time of the order (r). The 20 & 21 Vict. c. 81, which 
 authorises the Queen in Counpil to prevent, by order, vaults or 
 places of burial from becoming injurious to the public health, only 
 applies to grounds, at the time of the order, used for the purpose 
 of burial, or which may again be so used as of right. An Order in 
 Oouncil, therefore, directing the churchwardens to enter upon what 
 was formerly a burial ground, is invalid, and the parties acting 
 under it wiU be trespassers (s). A churchwarden has no right, 
 without a faculty, to remove 'portions of the soil, and the bones of 
 deceased persons from the churchyard, and if a monition from the 
 Ecclesiastical Court issues against him to replace them, it is no 
 answer to say he has tremsferred thb land on which they were 
 placed to another (t). The immemorial occupation and repair of a 
 private chapel or chancel attached to a church, will entitle the 
 lord of a manor, by prescription, to its exclusive use, although the 
 freehold may be in another, and although the estate or house to 
 which the chapel or chancel is appendant may not be situate in 
 
 (m) See Sugg v. Bishop of WincJmter, G. P. 602. Hid. 3 C. P. 107. As to his 
 
 li E 2 P CO 223 right to compenaation if it be taken com- 
 
 ■(«)■' Oriffin V. Dighion, 33 Law J., Q. B. pulsorily under an Act of Jarliament, 
 
 29 Ibid 181 (Exch. Ch.). As to tomb- see Stemng v. Metrop. Board of Worhs, 
 
 stones, see cmte, p. 7 ; 31 & 32 Vict. c. 47. post, oh. 16 s. 2. See also Campbell r. 
 
 As to pews, see post, p. 287. Ma,yorwadCyoratv>n of Uverpool L. E., 
 
 (0) Griffk v. lightm, ut sup. 9 Eq. Ca. 579. M paHe mtor of Liver. 
 
 (p) Greemlade vJDm-by. h. R, 3 Q. B. pool, L. E., 11 Eq Ca. 15. Ex parte 
 
 421 Bv 31 & 32 Vict. c. 117, he may Hector of St. Mairtms, Birmmgliam, Ibid. 
 
 now, under certain circumstances, be 23. n jj t t? i n -n ^7k 
 
 designated as yica^. ^ , il^./'f "■ ^°^' ^-^"^ ^^ ^' *^^ ' 
 
 (?1 -KW V. ri«^s»j;, L. E., 2 Pr. Co. 3 /M. 67. 
 C 59 (*) Adkm T. Colthmst, L. E., 2 Adm, 
 
 '{r) bhwrnpneys r. Arrowsmith, L. E., 2 & Eccl. 30. 
 
280 ' TRESPASS ok REALTY. [CHAP. YL. 
 
 the parish (u). And the immemorial repair of such a chapel in a 
 parish church, coupled with other acts of ownership, is evidence of 
 a right of freehold in it, which may be conveyed to a third person, 
 and is not necessarily appendant to any house («). 
 
 The rector is entitled to the keys of the church, although the 
 churchwardens have a right of access to it at proper seasons. The 
 latter cannot remove ornaments which have been illegally placed 
 in the parish church, except under the sanction of the ordinary (y). 
 But they are entitled to the communion plate as against the rector, 
 in case of its conversion by him (z). 
 
 A sexton of a parish church, for the churchyard of which a 
 burial-ground has been substituted under 15 & 16 Vict. c. 85, is 
 entitled to perform therein his duties as sexton in respect to the 
 burial of parishioners, just as he would have been entitled to do 
 in the old parish burying-ground, and may justify his entry on 
 the burial-ground, by himself or deputy, to perform such duties, 
 in spite of the refusal of the Burial Board to admit him. He is 
 entitled, for the same reasons, to toll the bell iu the chapel at such 
 burial (a). 
 
 Title to the sea-shore (b) and hed of navigable rivers. — The sea- 
 shore between high-water and low-water mark is primd facie the 
 property of the Crown (c), and is extra-parochial, unless it lie 
 shown by common reputation or otherwise to form part of an 
 adjoining parish (d). And so is the bed of a tidal river between 
 high and low-water mark (e). The soil may, however, be vested in 
 a private individual, or in the lord of the manor, by ancient grant 
 frorti the Crown, and may form part of the adjoining manor (/); 
 but proof that it does so ought to be strictly and rigidly required 
 from all lords of manors who set up exclusive rights in the soil, in 
 derogation of the free use and enjoyment of the sea-shore by the 
 public. Where proof was given by the lord of the manor or terri- 
 tory of Grower of an ancient grant of the terra de Gower in the 
 time of King John, and the limits of the manor both on the land 
 
 (it) Churton v. Frewen, L. R., 2 Eq. Ca. witliin the ports and harbours in the 
 
 63i. As to the right to ring the church kingdom ; and the Commissioners of the 
 
 bells, see Daunt v. Crocker, L. R, 2 Adm. Treasury have power, under 16 & 17 Vict. 
 
 & Ecol. 41. c. 107, s. 9, to alter the limits of ports, 
 
 (x) Chapman v. Jones, L. E., 4 Exoh. &c. ; see Nicholson v. WiUiams, L. JK., 6 
 
 273 ; 38 L. J., Exoh. 169. Q. B. 632. 
 
 (y) Ritcliings v. Cordingley, L. E., 3 (c) Hale, de Jure Maris, Hargrave's 
 
 Adm. & Eccl. 113. Law Tracts, pp. 25—37. 
 
 (s) Tm-ner v. Baynes, 2 H. El. 559. {d) Reg. v. Musson, 8 E. & B. 900 ; 27 
 
 WiUdnson v. Verity, L. E., 6 0. P. 206. Law J., M. C. 100. 
 
 (a) Burial Board of St. Margaret's, (e) Duhe of Bridgewater's Trustees v. 
 
 Jloc/iestci; v. Thompson, L. R., 6 C. P. BooUe-cum-Linacre, L. R., 2 Q. B. 4. 
 
 445. (/)~ WMtstabk {Free Fishers of) t. 
 
 (6) The Board of Trade have power, Gann, 11 C. B., N. S. 387 ; 31 Law J., 
 
 under 54 Gerj. 4, e. 159, s. 14, and. 25 & V. P. 372. See Mace t. Philcox, 33 Law 
 
 26 Vict. c. 69, s. 16, to prohibit persons J'., C. P. 124. 
 from taking shingle from the sea-shore 
 
SECT. 2.] TITLE TO SEA.-SHOEE, XKD BED OP NAVIGABLE KIVEKS. 281 
 
 and the sea-side were uncertain, common reputation, modern usage, 
 and the exercise by the lord of acts of dominion over the sea-shore, 
 were admitted in evidence to show the boundary of the manor on 
 the sea-side (g). And so of the bed of a navigable river, where 
 the tide flows and reflows, and of all estuaries or arms of the sea ; 
 but where a right is claimed to the bed of a navigable river, it 
 must be subject to the common law right of navigation by the 
 public, including that of anchorage. 'So anchorage dues, therefore, 
 are claimable, although they have been submitted to from time 
 immemorial, unless it can be shown (and slight evidence will be 
 sufficient), that some service to navigation either is, or was origi- 
 nally, rendered in return for the grant, or the locus in quo forms 
 part of a port (h). 
 
 Where a manor was held under an ancient grant from the Crown, 
 which professed to grant the manor with wreck of the sea, several 
 fishery, and other rights of an extensive description, but did not 
 expressly purport to convey " littus maris," it was held that acts of 
 dominion and ownership exclusively exercised by the lord upon 
 the adjoining sea-shore, between high and low water-mark, and 
 which acts would have been unlawful without a licence or grant 
 from the Crown, such as the constant and exclusive digging and 
 taking away of sand, stone, gravel, and sea-weed, might be called 
 in aid of the grant to show that the sea-shore was parcel of the 
 manor (i). But mere occasional acts of taking sand or gravel, 
 shells or sea-weed, from the sea-shore, ought not of themselves, 
 without proof of adverse and exclusive enjoyment on the part of 
 the lord, to raise any presumption of a grant of the soil from the 
 Crown (k). By a grant of the sea-shore, the Crown conveys not 
 that which at the time of the grant is between high and low water- 
 mark, but that which from time to time shall be between these 
 two termini, so that the freehold shifts as the sea recedes or 
 encroaches. The ordinary limit of the sea-shore is the line of the 
 medium high tide between the springs and the neaps (l). 
 
 Different rights in the sea-shore may be vested in a subject, 
 according to the terms of the grant. The king may have granted 
 to a subject the soil itself, or the general privilege of fishing, or 
 of laying, keeping, and taking oysters on that spot (m). But the 
 grantee of the Crown must take subject to such prescriptive rights 
 as may have been acquired by subjects by immemorial usage and 
 
 <g) Duke of Beaufcn-t t. Mayor, &c., of (i) Cdimady v.ilowe, 6 C. B. 861. Att.- 
 
 Swansea, 3 Exch. 413. See lestrange v. Gen. j. Jones, 2 H & C 347. 
 Jiowe 4 P & F. 1048. (*) ■^«''«'' ^- Wilson, 3 Bing. 115. 
 
 Howe 4 P & F 1048. (*) ■^«''«" ^- l^^tson, 6 Jiing. 115. 
 
 (h) Gann v. Whitstable Free Fishers, {I) Att.-Gen. t. Chambers, 4 De G. M. 
 
 35 Law J C P. 29. Whitstable Free & G. 213.. 
 
 Fishers v. Foreman, h. R, 2 C. P. 688 ; (m) ScraUon v. Brown, 4 B. & C. 497. 
 
 3 Ibid 578 i 4Engl. & Ir. App. 266. See ante, p. llG, in notis. 
 
282 THESPASS ON KEALTY. [CHAP. VI. 
 
 enjoyment (n), and to the comiiion law right of navigation -where 
 the grant is of the soil of a navigable river (o). 
 
 The right of the Crovim to grant a several fishery in a tidal river 
 to a subject is derived from the ownership of the soil; which is in 
 the Cro-^n by the common law. Hence, if the water permanejitly 
 changes its channel, and flows oyer land of another, a several fishery 
 in the new channel cannot be claimed by the grantee of a several 
 fishery in the old, although the public right of navigation will 
 continue (p). 
 
 Title to the soil of rivers or fresh-water lahes,. — The soil of the 
 bed of a non-navigable river belongs primA facie to the owners of 
 the land or of the manors on either side, ad vxedium filum. aqum {g). 
 Neither, however, is entitled to use it, so as to interfere with the 
 natural flow of the stream ; hence an encroachiftent by one land- 
 owner on his side of the streani is actionable at the suit of the 
 other, although no special dtimage be proved {r). So an injunction 
 will be granted to restrain a riparian proprietor on a tidal river 
 from erecting a jetty, and so encroaching on the alveus of "9, navi- 
 gable stream (s). It does not appear to be clearly established whether 
 the soil of lakes, like that of fresh-water rivers, belongs in the same 
 way to the respective owners of the land pn either side, or whether 
 it belongs prima fofiie to the king in right of Ms prerogative if). 
 
 Of the title to waste v>ninclqsed^ land adjoining tju sea-shore. — ^All 
 uninclosed waste land abutting on the sea-shore, and situate above 
 thp high-water mark of ordinary spring-tideg, belongs jwiw'^/fficie tp 
 the owner of the adjoining property, although it is covered with 
 beach and sea-weed, and overflowed by the waves at extraordinary 
 spring-tides (m). 
 
 Of the right to the soil of turnpike-roads and highways. — The soil 
 of a turnpike-road is not vested in the trustees pf the road. The 
 trustees have only the control of the highways, the ordinary rule 
 being that the landowners on either side of the road are entitled to 
 the soil of the road, usque ad medium filiim vice; q,nd if a landowner 
 owns the soil on both sides of the road, he is entitled to the soil of 
 the whole road (a;). This is a presumption of law founded on the 
 
 (n) lid. Denman, C.J., Mayor of Gol- (s) AU.-Oen. x.Ecvrl of Lonsdale, L. K., 
 
 Chester v. Broole, 7 Q. B. 374 ; ante, 7 Eq. Ca. 377. 
 
 ch. 3. (t) As to grants of a several fishery 
 
 (o) Qa/nn T. WliitstaMe Free Fishers, ■with livery pf sejzin, ooiiveyiiig a free- 
 
 supra. hold interest in the soil covered with the 
 
 ' (p) Mayor, &c., of Carlisle v. Chrahmn, water, Majrshall v. UUeswater, 32 Law J., 
 
 L. it., 4 Exch. 361. See Vuhe of North- Q. B. 139. 
 
 urriberland v. Boughion, L. E., 5 Exoh. (u) Lowe v. Oovett, 3 £. & Ad. 869. 
 
 127, as to the merger of a several fishery, Hale, de jure Ma/ris, c. 4, P- 12. Harg. 
 
 originally granted by the Crown previous Law Tracts. As to land gained from the 
 
 to Magna Charta. sea, Att.-Oen. v. Mees, 4 De G. & J. 65. 
 
 (g) See Crossley v. LigMowler, L. E., 3 {x\ Davison v. Gili, 1 East, 69. Mar- 
 
 Eq. Ca. 279. quis of Salisbury v. Gt. Northern Railway 
 
 (r) Bichett t. Morns, L. E., 1 Scotch Co., 28 Law J., C. P. 53 ; 5 0. B., K. S. 
 
 App. Ca. 47. . 208. 
 
SECT. 2.] EIGHT TO SOIL OF TURNPIKE EOADS, HIGHWAYS, &C. 283 
 
 assumption that in maMng a road for public convenience, the owners 
 of the land on each side of the road have contributed a portion of 
 their land towards the formation of the road {y). "Where the owr^er 
 of two parcels of land on either side of a highway conveys them to 
 a purchaser, the soil of the road passes by presumption of law, 
 although the conveyance is silent as to the existence of the road, 
 and although the particular measurement of each parcel of land is 
 given, which would exclude the road ; but this presumption may 
 be rebutted by circumstances showing that the grantor did not 
 intend to transfer to the grantee his right of ownership in the soil 
 of the highway. Words in an instrument of grant, as elsewhere, 
 are to be taken in the sense which the common usage of mankind 
 has applied to them in reference to the subject-matter of the grant. 
 And if lands abutting upon a highway £^^e described in the 
 grant as bounded by the highway, the right to the soil, ad medium 
 fihmb vice, will be impliedly included in the grant, unless the sur- 
 rounding circumstances rebut the presumption (z). And whqre the 
 land intended to be conveyed is described by measurement and 
 colour^ on a plan annexed to, and forming part of, the conveyance, 
 the soil of' the highway usque ad Tdedium filwrn passes by the 
 conveyance, unless it is expressl;^ excluded {a). 
 
 No legal presumption arises as to the ownership of soil in a 
 road, where the road is defined for the first time undpr a newlyT 
 created authority, such as a board of commissioners for inclosing 
 lands, acting under the powers of an Act of Parliament (6). 
 
 The right to. the soil of accommodation-ways and 'private roads 
 depends upon the history of the premises, and the evidence of acts 
 of ownership over the soil of the roa(J. If nothing else appears than 
 the existence of a private way running between the lands of two 
 adjoining proprietors, the jury may presume that the soil belongs 
 half to the one and half to the other. But that presumption may 
 be rebutted by evidence showing acts of ownership on the part of 
 one only of such adjoining proprietors (c), or by proof of a reserva- 
 tion of the SOU of the road by a grantor under whom the landowners 
 on either side of the road claim title {d). 
 
 Of the title to waste lands adjoining puUic highways.— Wasteland 
 extending along a public highway is presumed, in the first instance, 
 to belong to the owner of the adjoining land, and not to the lord of 
 the manor (e) ; but this presumption prevails only so long as proof 
 
 (y) The same presumption applies to 415; 30 Law J., C. P. 218. 
 
 two conterminous' parishes, where the Dendy, 8 C. B., N. S. 433. 
 
 boundary between them is a highway. Simpson, 7 Jur. N. S. 1058. 
 Sea. V. Strand Bowi-d of Works, 33 Law (b) Rex v. Satfidd, i Ad. & E. 156. 
 
 J. M. 0. 33. C'') Ji<>l'i>i'is ^- BeUimgham, 7 C. B., N. 
 
 (z) Lwd V. Commissioners of Sidney, S. 388. 
 •fee 12 Moore, P. C. 0. 498. {d) ToUenJum,Y.Byme.l2lr.C.'L.n.Z88. 
 
 (a) Beiridge v. Ward, 10 0. B., N. S. (c) Doe t. Pea/rsey, 7 B. & C. 307. 
 
284 TRESPASS ON REALTY. [CHAP. VI. 
 
 to the contrary is wanting (/). In remote and ancient times, when 
 roads were frequently made through uninclosed lands, and when 
 the same labour and expense wer§ not employed upon roads, and 
 they were not formed with that exactness which the exigencies of 
 society now require, it was part of the law that the puhlic, where 
 the road was out bf repair, might pass along the land by the side of 
 the road. This right on the part of the public was, attended with 
 this consequence — that although the parishioners were bound to the 
 repair of the road, yet, if an owner excluded the public from using 
 the adjoining land, he cast upon himself the onus of repairing the 
 road. If the same person was the owner of the land on both sides, 
 and inclosed both sides, he was bound to repair the whole of the 
 road ; if he inclosed on one side only, the other being left open, he 
 was bound to repair to the middle of the road ; and where there was 
 an ancient inclosure on one side, and the owner of lands inclosed on 
 the other, he was bound to repair the whole {ante, pp. 227, 228). 
 Hence it followed, as a natural consequence, that when a person 
 inclosed his land from the road, he did not make his fence close to 
 the road, but left an open space at the side of the road, to be used 
 by the public when occasion required. This appears to be the most 
 natural and satisfactory mode of explaining the frequency of waste 
 left at the sides of roads: the object was to leave a sufficiency of land 
 for passage by the side of the road when it was out of repair (^). 
 
 But the ordinary presumption, that a narrow strip of land lying 
 between the highway and the adjoining close belongs to the owner 
 of the close, is either done away with or considerably narrowed, if 
 the narrow strip is contiguous to, or communicates with, open 
 commons or larger portions of land ; for the evidence of ownership 
 which applies to the large, portions, applies also to the narrow strip 
 which communicates with them Qi). 
 
 Of the right to the soil of towing-paths and the hanhs of rivers and 
 canals. — Navigation companies authorised by statute to set out 
 towing-paths, first giving satisfaction to the owners and proprietors 
 of lands made use of for the purpose, do not, by forming a towing- 
 path and giving satisfaction to the owner of the land over which 
 the path is formed, acquire more than a right of way for towing, in 
 the nature of a servitude or easement. Statutory powers of this 
 sort do not 'enable them to acquire the soil itself. Landowners, 
 therpfore, whose lands abut upon a navigable river or canal, along 
 which a towing-path extends, have a right to form wharfs on the 
 soil of the towing-path, and to cross the towing-path wherever they 
 please, for the purpose of loading and unloading vessels, provided 
 
 (/) Voe T. Hampson, 4 C. B. 273. Hmdlwm v. HedUy, Holt, N". P C 462. 
 Smdy V. Simpson, 1? 0. B. 831. Doe v. Kemp, 2 B. N. C. 102 
 
 ((/) SUel T. Prichett, 2 Stark. 469. (7i) Qrose v. West, 7 Taunt 42 
 
SECT. 2.] TITLE TO TKEES, BOUNDARY WALLS, ETC. 285 
 
 they do not interfere with the right of way along the towing-path (i). 
 Acts of ownership on the part of the proprietors of a navigation 
 company, exercised over the banks of a navigable river, afford no 
 evidence of the ownership of the soil of such banks being vested in 
 the proprietors of the navigation company. If the Act of Parliament 
 under which the company is incorporated gives the company no 
 power to purchase land, that is against their claim to be proprietors 
 of the soil (k). 
 
 Of the right of property in trees and hushes. — According to the 
 old authorities, the general property in trees is in the landlord, and 
 the general property in bushes is in the tenant, although if he 
 exceeds his right — as by grubbing up or destroying fences — he 
 may be liable to an action of waste. The tenant has the general 
 property in the cuttings of a hedge, whoever cuts it (I). 
 
 Of the ownership of trees standing in loundary hedges. — In an 
 old case, it is said " that if a tree grows in a hedge which divides 
 the land of A and B, and by the roots takes nourishment in the 
 land of A and also of B, they are tenants-in-common of the tree, 
 and so it was adjudged " (in). But- this must be understood of 
 fences of which the adjoining owners are also tenants-in-common ; 
 for the general rule is, that the ownership of the tree follows the 
 ownership of the hedge, and the tree will be held to belong to the 
 party on whose land the trunk stands, without reference to the 
 direction of the roots. By the French law, " Trees which are found 
 in a common hedge are common like the hedge ; each of the two 
 proprietors has the right to require that they should be felled ; " 
 and " he whose property is overshadowed by the branches of his 
 neighbour's trees may compel the latter to cut off such branches. 
 If it be the roots which encroach on his estate, he has a right to 
 cut them therein himself " {n). 
 
 Of the right of property in loundary-walls and fences (o). — 
 Evidence of a common user by two adjoining proprietors of a 
 boundary-wall separating their two estates justifies the presumption, 
 either that the wall was originally built on land belonging in 
 undivided -moieties to the owners of the respective premises, and at 
 their joint expense, or that it had been agreed between them that 
 the wall, and the land on which it stood, should be considered the 
 property of both as tenants-in-common, so as to insure to each a 
 continuance of the use of the wall (p). " When a wall is common 
 
 (i) Badger v. South York S. Co., 1 EU. (m) Cod. Cir. art. 672, 673. As to 
 
 & Ell 347 • 28 Law -J., Q. B. 120. Monm. trees OTerhanging railways, see 31 & 32 
 
 Canai. cfc Aail. Co. T. BiU, 4 H. & N. 427. Vict. c. 119, s. 24. 
 
 <k) Hottis V. Goldfinch, 1 B. & C. 205. (o) As to an overhanging cornice, see 
 
 <l) Berrirmn v. Peacock, 9 Bing. 384. Whittaker v. Jackson, 33 Law J., Exoh. 
 
 (m) Anon., 2 Kolle's Eep. 265. Wateir- 181. 
 
 Tnan v Soper, 1 Ld. Eaym. 737. Holder (p) Wiltshire t. Sidford, 8 B. & 0. 
 
 V. Coates, M. & M. 112. 259 n. 
 
286 TEESPASS ON EEALTY. [CHAP. VI. 
 
 property, it may happen, either that a moiety of the land on which 
 it is huUt may he one man's, and the other moiety another's, or 
 the land may belong to the two persons in undivided moieties." 
 But " wheiiever the land on which a boundary- wall is intended to 
 be buUt belongs on one side to one party, and on the' other to the 
 other party, and they between them agree to build the wall, it 
 would be prudent," observes Bayley, J., " to make this bargain, that 
 so long as there was to be a wall continuing oji the property, the 
 land on which it was built, and the wall which stood upon that 
 land, shoidd be taken, to be the common property of the two, and 
 that the owners of the estates on each side should be tenants-in- 
 common of the undivided moiety of that land and of the wall, with 
 the power of adopting such remedies for partition as tenants-ih- 
 common may adopt ; for if the wall stood partly on one man's 
 land, and partly On another's, either party would have a right to 
 pare away the wall on his side, so as to weaken the wall on the 
 other, and to produce a destruction of that which ought to be the 
 common property of the two " (q). If one adjoining owner erects 
 a boundary- wall, which also forms the external wall of the house of 
 his neighbour, and places an inscription on it stating that it is his 
 wall, the owner of the house will not obtain a title to such wall by 
 adverse possession, although no rent or acknOwledglneht hag been 
 paid for it for many years (r). ■ 
 
 If one tenant-in-common of a waL. destroys the wall which is 
 the subject of the tenancy- in-common, that is ah actual ouster and 
 expulsion of the one by the other, so that the party expelled and 
 injured may maintain an action agaiiist the . wrong-doer for the 
 recovery of damages ; but if the wkll is pulled down for the mere 
 purpose of re-buildihg it, and providihg a better and stronger -Wall, 
 no action is, it seems, maintainable. If an improper addition is 
 made to the height of the waU. by one tenant-in-commoh to the 
 injury of the other, the latter may remove the heightened portion 
 of the -Wall (s). Where a bmldihg is plaCed agaiiisi; the waU by 
 one of two tenants-in-common of the wall, and the wall is 
 heightened and carried up into a chininey, this is evidence of an 
 ouster of the other tenant-in-common, as the altered wall ahd the 
 old waU are hot identical things, and the nature of the property is 
 substahtially changed (i!). 
 
 In general, where a boundary- waU is bmlt at the joint expense 
 of adjoining proprietors under the provisions of a Building Act, so 
 
 (2) Oubitt T. Porter, ip.fra. tad replabed the' mscription. 
 
 ()•) PhiUipson v. GMon, L. E., 6 Ch. (s) OuUtt v. Porter, 8 B. & C. 257. 
 
 App. 428. It appeared, in this case, that Murray v. Hali, 1 C. B. 441. Mwly t. 
 
 the owner of the house had himself re- M'Dermqtt, 8 Ad. &B. 138. 
 
 built the Tvalt more than thirty years (t) Stedmah.v. Smith, 8 Ell. &Bl'l; 
 
 before the commencement of the suit; but 26 Law J., Q. B. 315. 
 
SECT. 2.] TITLE TO BOUNDARY FENCES — PEWS. 287 
 
 that half the thickness of the wall stands on the ground of each 
 proprietor, the two proprietors are not tenants-in-common of the 
 wall, but each is entitled to the ordinary remedy for any injury 
 done to the part of the wall which stands on his own land [it). In 
 the metropolis, party walls are regulated by the Building Act, 
 18 & 19 Vict. c. 122 (*). 
 
 Of the ownership of ditches and hedges. — " The rule," observes 
 Lawrence, J., " about ditching is this. ISTo man making a ditch can 
 Cut into his neighbour's soil, but usually he cuts it to the very 
 extremity of his own land ; he is, of course, bound to throw the 
 soil which he digs out upon his own land, and often, if he likes it, 
 he plants a hedge on the top of it ; therefore, if he afterwards cuts 
 beyond the edge of the ditch, which is the extremity of his land, 
 he cuts into his neighbour's land, and is a trespasser ; no rule about 
 four feet and eight feet has anything to do with it" (y). A 
 boundary-hedge, separating one estate ftom another, belongs in 
 general to the occupier who has been in the habit of cutting and 
 repairing the hedge. Proof of the exercise of acts of ownership 
 over the hedge is primd facie evidence of the property in the hedge 
 being in the person who has exercised such acts. In some instances, 
 the adjoiiiiiig owners are tenants-in-common of the hedge separating 
 their respective properties, so that each has a right to clip the 
 hedge, but not to grub it up {£). 
 
 By the French law, all ditches between two estates are presumed 
 common, if there be no title or proof to the contrary. But it is 
 proof that a ditch is not common when the bank or earth thrown 
 up is found only on one side of the ditch. The ditch, in such a 
 case, is deemed to belong exclusively to him on whose side the 
 earth is found to be thrown up. Every hedge which separates two 
 estates is reputed common to both, unless there be only one of the 
 estates in an inclosed conditioii, or unless there be vouchers or 
 sufhcient possession to prove the contrary (a). 
 
 Title to a pew in a church. — Churchwardens are not justified in 
 dispossessing any one Of a sitting in a pew in a church which he 
 has enjoyed for some tinie, without giving notice of their intention, 
 and offeriiig an opportunity for objection atid explanation (b). See 
 ante, p. li3 — 4. 
 
 («) Matts T. SawUns, 5 Tailnt. 22. (z) Voyce t. Voyee, Gow, 201. 
 
 \x) See Hunt v. Ham-is, U Law J., 0. (a) Opd. Nap. liv. 2, No. 666—672. 
 
 P 24& ; and ante, p. 179. (5) HorsfciU v. HoUand, 6 Jur. N. S. 
 
 '(j/) Vowles V. Miller, 3 Taunt. 137. 278. 
 
288 TRESPASS ON REALTY. [CHAP. VI. 
 
 SECTION III. 
 
 OF ACTIONS FOK TRESPASSES UPOn'lANDS AND TENEMENTS. 
 
 Of actions against the hundred for damage done to tenements hy 
 rioters. — By 7 & 8 Geo. 4, c. 31, s. 2, it is enacted, that if any 
 churcli or chapel, house, stable, &c., or any building or erection 
 used in any trade or manufacture, or in conducting the business of 
 any mine, or any engine or machinery employed in any manufacture, 
 or in working any mine or any bridge, waggon-way, &c., or trunk for 
 conveying minerals, shall be feloniously demolished, pulled down, 
 or destroyed, wholly or in part, by any persons riotously assembled 
 together, the inhabitants of the hundred shall, if the damage done 
 exceeds 30Z., be liable (s. 8) to yield full compensation to the 
 persons damnified by the offence, and also for any damage which 
 may at the same time be done to any fixture, furniture, or goods, 
 in any such church, chapel, house, or buildings. Under this statute 
 a borough is liable to contribute, as part of the hundTed, to the 
 damage done, notwithstanding the {)rovisions of the Municipal 
 Corporation Act (c). But before an action can be maintained, the 
 persons damnified, or such of them as hav6 knowledge of the 
 circumstances of the offence, or the servant or servants who had the 
 care of the property damaged, must, within seven days after the 
 offence, go before some neighbouring justice of the peace, having 
 jurisdiction over the locality of the offence, and state upon oath the 
 names of the offenders, if known, and submit to the examination 
 of such justice touching the circumstances of the offence, and 
 become bound by recognisance to prosecute, &c. ; and every such 
 action must be commenced within three, calendar months after the 
 commission of the offence. In an action against the hundred to 
 recover compensation for the felonious demolition of a house, 
 building, or erection, the same strictness of averment and proof is 
 required as on the trial of an indictment for felony {d). 
 
 No action can be maintained against the hundred in cases 
 where the damage done does not exceed 30Z., but the person 
 damnified must hand in a notice of claim to the high constable of 
 the hundred, or, if there is no high constable, to the chief constable 
 or acting chief officer of police of the county in which the hundred 
 is situate («),_who is to exhibit such claim to two justices of the 
 peace, who are to appoint a petty session for the purpose of hearing 
 and determining such claim (s. 8.) 
 
 (c) BirUy v.Salford, 11 M. & W. 399. (c) 32 & 33 Vipt, c. 47, s. 5, and see 
 
 (d) Barwell t. Winterstolce, 14 Q. B, p. 7. 
 708. 
 
15CT. 3.] ACTIONS— PARTIES. 289 
 
 Parties to be made plaintiffs in actions for trespasses — 
 Heirs-at-law. — The heir-at-law cannot maintain trespass for an 
 injury to lands descended to him without entry ; but, after entry, 
 his right of possession relates back so as to support an action 
 against a wrong-doer for a trespass committed at an antecedent 
 period (/). 
 
 Tenants-in-common. — An action is maintainable by one tenant 
 in common against his co-tenant, or the licensee of the latter, for 
 digging up and carrying away the soil of the close of which they 
 are tenants in common. In such an action, a plea that the close 
 is not the close of the plaintiff is not supported by proof that the 
 plaintiff is tenant in common of it, with others who authorised the 
 trespass {g). One tenant in common also may sue his co-tenant in 
 common in trespass for turning him or his servants off the land, or 
 out of the house holden in common (h). 
 
 Tenwni and reversioner. — The actual occupier of real property is 
 always entitled to maintain an action for unjustifiable trespasses 
 thereon; but the owner, who has parted with the possession in 
 favour of a tenant or lessee, cannot maintain an action for a trespass. 
 But if an injury is done to his reversionary estate, he is entitled to 
 an action on the case for damages. If a house or land is occupied 
 merely by the servant of the owner, the occupation of the servant 
 is the occupation of the owner {ante, pp. 272, 273), and the latter, 
 being then the occupier as well as the owner, may sue for any 
 temporary trespass or injury, rendering his occupation less profitable 
 or commodious ; but where the land has been demised to a lessee, 
 who has entered thereon, and is clothed with the possessory interest, 
 the lessee, and not the landlord, is the proper party to sue for a 
 trespass upon the property, unless the wrongful act complained of 
 imports a damage to the reversionary estate {i). Where the injury 
 is of a permanent nature, and deteriorates the marketable value of 
 the property, so that, if the landlord or reversioner was to sell it, it 
 would fetch less money in the market, there is, as we have seen, 
 a damage to the reversionary estate, in respect of which the 
 reversioner may maintain an action on the case {k). " The removal 
 of the smallest portion of soil must, in general, be esteemed an 
 injury to the reversion, because it tends to alter the evidence of 
 title"©. 
 
 In the case of permanent injuries to buildings, from trespasses 
 or acts of negligence by strangers, the tenant is entitled to sue in 
 
 (/) Bomiett T. Earl of QuiUfwd, 11 (i) Dohson t. Blmikmam,, 9 Q. B. 991. 
 
 Exch. 19 ; 24 Law J., Exch. 281. (k) Ante, pp. 70, 145, 202 203. M to 
 
 (g) Wilkinson v. Haygarth, 12 Q. B. injuries from the removal of fixtures, Ifowe 
 
 837 ; 16 Law J., Q. B. 103. T. Horton, 5 B. & Ad. 727. 
 
 Qi) Mwrray v. Hail, 7 C. B. 454 ; 18 (0 Per Cur. Alston v, SnaUs, 4 Bing. 4. 
 
 Law J., 0. P. 161. 
 
290 TRESPASS ON REALTY. [CHAP. VI. 
 
 respect of the immediate residential injury, and the reversioner in 
 respect of the diminished saleable value of the property {%). Where 
 trees have been injured by a stranger, the lessor and the lessee may 
 both sue in respect thereof; the lessor for the damage done to the 
 body of the tree, the lessee for the loss of the shade and fruit (o). 
 . Bo may the copyholder and the lord (^^s). But the reversioner cannot, 
 as we have seen, maintain an action against a stranger for entering 
 upon land in the occupation of his lessee, and with carts and horses 
 trampling down the soil and grass, though the entry be made ia the 
 exercise of an alleged right of way, as the act is not attended with 
 any permanent injury to the reversion, " Such an act," observes 
 Parke, J., " done while the premises were out on lease, would not 
 be evidence of any right as against the reversioner " (g). 
 
 If several persons are entitled to the reversion as joint-tenants, 
 co-parceners, or co-heirs in gavelkind, all of them should be joined, 
 as we have seen {amie, p. 70), as plaintiffs in an action for an injury 
 to the reversion (r). So, if there are several occupiers or tenants of 
 the injured pro;^erty, all should be made plaintiffs in an action for 
 damage done to the possessory interest in the premises. Tenants in 
 common also " should join in actions personal, as trespass in breaking 
 into their houses, breaking their inclosure or fences, feeding, wastiag, 
 or defouling their grass, cutting down their timber, fishing in their 
 piscary, &c., and shall recover jointly their damages, because in those 
 actions, though their estates are several, yet the damage survives to 
 aU, and it would be unreasonable to bring several actions for one 
 single trespass " (s). 
 
 Parties to he made defendants.- — ^Actions for trespasses, and injuries 
 to real property, may be brought either against the hand actually • 
 committing the injury, or against the person by whose order or 
 authority the act was done. A master is liable, as we have seen, for 
 any act done by his servant in the course of executing his orders ; 
 and, therefore, where a master ordered his servant to lay some 
 rubbish near his neighbour's wall, but so that it might not touch 
 the wall, and the servant used ordinary care in executing the orders 
 of his master, but some of the rubbish nevertheless ran against the 
 wall, it was held, that the master was liable in trespass {t). But to 
 render the master liable for the trespass of the servant, the servant 
 must, as we have seen (ante, p. 23), be acting in the execution of 
 the master's business, or for the master's benefit, 
 
 (n) ffosJdng t. PhUUps, 3 Eich. 168 ; Deermg v. Moor, Cro. Eliz. 554. Ante, 
 
 ,post, Damages. p. 203. 
 
 (o) BeMngfiM t. Onslow, 3 Lev. 209. (t) Bao. Abr. Joint-Tbitants, K ; post, 
 
 , (p) Jefferson t. Jefferson, ib. 131. ch. 20. 
 
 (g) Baxter v. Taylor, 4 B. & Ad. 75. («) Gregory t. Piper, 9 B. & C. 591 ; 4 
 
 Ante, pp. 145, 146. M. & B, 500, 
 (r) Baa, Abr, Joint-Tenants, K, 
 
SECT. 3.] ACTIONS — PAETIES-^PLEADINGS. 291 
 
 If fences are allowed to go to ruin, and cattle escape and trespass 
 upon tlie adjoining land, the action for the injury must be broiight 
 against the owner of the trespassing beasts, or the person who is by 
 law bound to uphold the fence {ante, p. 125). An action for the non- 
 repair of fences cannot be supported against the landlord when the 
 land is in the possession of a tenant ; for it is, as we have seen, the 
 duty of the actual occupier to repair and maintain fences, and not 
 the duty of the landlord (m). 
 
 Where several persons have been jointly concerned in the 
 commission of a trespass, they may, in general, be sued jointly as 
 principals, or the plaintiff may sue any of them separately at his 
 election (a;). 
 
 Declaration for trespasses upon land — Venue. — -The rule that the 
 name of the county from which the jury are to come to try the 
 action is to be stated in the margin of the declaration {post, ch. 21), 
 does not apply to actions for trespass to land, where the place in 
 which the trespass was committed is described in the body of the 
 declaration. The cause of action for an injury to realty is local, 
 and must, unless the venue is changed by judge's order, be tried in 
 the county where it arises, and where the property is situate ; but 
 any defect in namiug the place of trial, or laying the venue, is cured 
 by the statute 16 & 17 Car. 2, c. 8 {y). The close or place in which 
 the trespass was committed must be designated in the declaration 
 by name, or abuttals, or other description, or the plaintiff may be 
 ordered to amend with costs, or give such particulars as the court 
 or judge may think reasonable (2). The description should cor- 
 respond with the state of the premises at the time of the commis- 
 sion of the trespass, and not at the time of the delivery of the 
 declaration {a). It should be reasonably accurate, and the name 
 and situation of the close should be specified (b), and the trespass 
 must be proved to have been committed at the place named (c). 
 Where there is a general district of land known by one general 
 name, and there are several occupiers in the same district, each 
 person may call his own part of the district by the general name {d). 
 
 The plaintiff may allege generaUy, "that the defendant broke 
 and entered certain land of the plaintiff, called, &c., and depastured 
 the same with certain cattle " (e). If special damage has resulted 
 
 («) Cleefham r. Sampson, i T.E. 318. (5) Coder v. Orompton, 1 B. & C. 489. 
 
 (x) Ld. Kenyon, C.J., Mitchell \. Tar- ic) Simmons v. LiUystone, swpra. 
 
 hutt, 5 T. K 651 ; post, ok 20. W Goohe v. Jachson, 9 D. & K. 496. 
 
 (y) Simmons v. Lmystone, 8 Exch. 441 ; (e) 15 & 16 Viot. c. 76, Sehed. Whether 
 
 22 Law J.,Exch. 218. Warren v. Webb, the beasts get there from being driven 
 
 1 Taunt 379 ■'here by the plaintiff, or whether they go 
 
 (z) Eeg. Gen. 16 Vict. 18 ; 1 Ell. & Bl. there of their owe accord, from wsiiit of 
 
 App- li:^i. proper custody exercised over them, " is 
 
 (a) Humfrey v. Lond.d: North-Western all one," mte, pp. 125, 266. 
 Jt. Co., 7 Exch. 325; 22 Law J., Exch. 149, 
 
 V 2 
 
292 TKESPASS ON KEALTY. [CHAP. VI. 
 
 to the plaintiff from excavations made by the defendant in the soil 
 of the plaintiff, the nature of the damage should be stated (/). 
 
 If the plaintiff declares as reversioner for an injury done to his 
 reversion, the declaration must allege it to have been done to the 
 damage of the reversion, or must state an injury of such a permanent 
 nature as to be necessarily prejudicial thereto ; and the want of such 
 an allegation is cause for arresting the judgment {g). 
 
 What may le given in evidence under the plea of not guilty. — In 
 actions for trespasses upon land, the plea of not guilty operates as 
 a denial of the defendant's having committed the trespass alleged 
 in the place mentioned, but not as a denial of the plaintifi's posses- 
 sion, or right of possession, of that place ; which, if intended to be 
 denied, must be traversed specially. All other pleas in denial must 
 take issue on some particular matter of fact alleged in the declara- 
 tion ; and all matters in justification, and in confession and avoid- 
 ance of the cause of action must be pleaded specially (h). 
 
 Ofjpleas denying the plaintiffs title or right of possession. — If the 
 defendant intends to dispute the plaintiff's right of possession of, or 
 title to, the land or messuage on which the trespass is alleged to 
 have been committed, he must plead a plea, alleging that such land 
 or messuage was not the lancj or messuage of the plaintiff, or a plea 
 of lihermn tenementum., which is a plea alleging that such close or 
 land was the soil and freehold of the defendant. Under the plea 
 that the land or messuage is not the plaintiff's, both the possession 
 and title are in issue (i) ; but this is not the case with the plea of 
 liberum tenementum, which admits the plaintiff's possession, but 
 denies his title (Jc). Under these pleas, the defendant may show 
 that the plaintiff is the trespasser, and not the defendant (l). 
 
 Of the plea of liberum tenementum; or plea offreehold.-r-The plea 
 of liberum tenementum, is a plea alleging that the close or land in 
 which the trespass was committed was the soil and freehold of the 
 defendant. This plea, as it has justly been observed, though held 
 valid on account of long usage, is bad in reasoning, because the 
 defendant may be a trespasser, though he is himself the freeholder; 
 and to make the plea a consistent defence, it has been held that it 
 admits such a possession in the plaintiff as would enable him to 
 maintain the action against a wrong-doer, and to assert a freehold 
 in the defendant, with a right to the immediate possession, as against 
 the plaintiff (m). The plea was originally invented for the purpose 
 
 (/) Ante, pp. 72, 149. Law J., Exch. 456 ; overruling Whittmg- 
 
 (g) Baxter v. Tayhr, 4 B. & Ad. 74. ton t. Bomll, 5 Q. B. 143. 
 Jackson t. Feshed, 1 M. & S. 234. (i) Slocomie v. Lyall, 6 Exch. 119. 
 
 (A) Keg. Gen. HiU. Term, 16 Vict. ; 1 {I) Bmlmg r. Read, 11 Q. B. 908 ; 19 
 
 Ell. & Bl. App. Ixxxi., Ixxxii. ; post. Law J., Q. B. 291. 
 ch. 21. (m) Ryan v. CIawTc, 14 Q. B. 71 ; 18 
 
 (t) Jones T. Chapman, 2 Exch. 803 ; 18 Law J., Q. B. 269. 
 
SECT. 3.] PLEADINGS — LEAVE AND LICENCE. 293 
 
 of driving the plaintiff to prove his title to the land in dispute. 
 And if the declaration goes on to charge the defendant with having 
 expelled the plaintiff from the dwelling-house, and seized and 
 removed his goods, the plea covers and justiiies the expulsion and 
 removal of the goods, as well as the breaking and entering the 
 house (w) ; but such a plea is no answer to an assault upon the 
 person (o). 
 
 Replication — Estoppel. — To a plea of liherum tenementum the 
 plaintiff may reply, that the defendant ought not to be admitted to 
 plead the plea, because, &c. (showing some ground of estoppel) ; 
 and the defendant must answer the replication by a rejoinder : but 
 if a party means to insist on an estoppel, he must take the first 
 opportunity of doing so which the pleadings afford him ; if he fails 
 to do this, he leaves the matter at large, so that the jury may 
 decide upon the evidence before them, without regard to an 
 estoppel (p). If an estoppel cannot be pleaded, it may be relied on 
 nevertheless at the trial (q). 
 
 Of the plea of leave and licence — -Equitahle defence. — The form of 
 the, plea of leave and licence is, that the defendant did what is com- 
 plained of 'by the plaintiff's leave {r). Under this plea it may be 
 shown that the plaintiff granted to the defendant a right to enter 
 upon his land, or granted him a lease thereof, or a licence to occupy, 
 or leave to enter upon and take possession of the locus in quo, and 
 expel the plaintiff therefrom (s). Proof may be given under this 
 plea of an exception of timber-trees in a lease made by the defendant 
 to the plaintiff, or a reservation in a parol demise of hedges, trees, 
 and thorn-bushes, with the lop and top, giving the defendant a right 
 to enter upon the land, for the purpose of cutting and carrying away 
 the trees or the loppings of the hedges and bushes (t) ; or it may 
 be shown that the plaintiff took the defendant's goods, and carried 
 them on to his own land ; whereupon the defendant entered upon 
 the plaintiff's land, with his (implied) leave, and carried them back 
 to the place from whence the plaintiff took them {u). If the plea 
 does not extend to and cover the whole of the trespasses to which 
 it is pleaded, the plaintiff will be entitled to judgment {£). When- 
 ever a person has been induced to lay out money upon the land of 
 another, upon the faith of a verbal agreement, that in consideration 
 of the expenditure the person laying out his money shall enjoy an 
 
 (n) Mentm v. Coomhes, 9 C. B. 787 ; ^ («) Kwmnagh v. Oudge, 7 M. & Gr. 
 
 19^Law J P. 336. Taylor y. Cole, 1 316 ; 7 Se. N. B. 1025. 
 
 Smith's l'c 119— 127, eth ed. (<) Hewitt y. Iskam, 7 Exch. 77; 21 
 
 (0) RoUrt, T. Tayler, 1 C. B. 117. Law J Exeh 35. 
 
 }«) Peversham v. Emerson, 11 Exch. (m) Vm. Abr. Trespass, la. Patnch 
 
 385 • 24 Law 3 Exch. 254. v. Colerkk, 3 M. & W. 485. As to break- 
 
 (o) Whittaixr'r. Jackson, 33 Law J., ing open an office to get at books and 
 
 — ^^/ 1 o-i papers, see Bwndge v. mcholetts, 6 H. & 
 
 (, ) '15 & 16 Viot. c. 76, Sched. B., No. iT 383 ; 30 Law J., Exch. H5. 
 
 ./ ' {x) Barney. Hunt, 11 East, 451. 
 
294 TEESPASS ON REALTY. [CHAP. VL 
 
 easement, privilege, or profit upon the land, the privilege cannot in 
 equity be withdrawn, as we have seen, by the landlord, without 
 tendering fuU compensation for the expenditure (y) ; but the verbal 
 agreement or parol licence is not pleadable, it seemS) by way of 
 equitable defence to an action for trespass, inasmuch as, to con- 
 stitute a good equitable defence, the fact must be such as to entitle 
 the defendant to absolute and unconditional relief, or to a perpetual 
 injunction (z). 
 
 Special pleas of matters in confession and avoidance — Matters of 
 excuse. — All matters in confession and avoidance are required to be 
 specially pleaded (a), such as the defence that the defendant's 
 cattle escaped from the defendant's land, and trespassed on the 
 land of the plaintiff, through the neglect of the plaintiff to repair 
 fences which he was bound by contract or by prescription to repair 
 and maintain. Pleas of this sort must show how the obligation to 
 repair arises (b). 
 
 Pleas justifying a trespass. — Every defendant who justifies his 
 entering or remaining upon the land of the plaintiff against his 
 will, and, theveioie, primd facie, against right, is bound to show, on 
 the face of his plea, such circumstances as establish his right in 
 abridgment of the general rights of property (c). If he justifies his 
 entry in the exercise and enjoyment of a profit k prendre, or an 
 easement (ante, p. 79), he must set forth in his plea the foundation 
 of his right, showing whether he claims by grant or by prescription, 
 or under a mere personal licence of pleasure, — which extends only 
 to the individual licensee, and cannot be exercised by his servants ; 
 — or under a licence of profit, which enables his servants to justify 
 under it (d). 
 
 If the defendant claims under a particular estate, he must in his 
 plea aver the continuance of that estate. Thus, if he derives his 
 title from a tenant-for-life, he must aver and prove the continuance 
 of the life-interest (e). Every plea of justification in trespass must, 
 of course, extend to and cover the whole of the trespasses intended 
 to be justified (/) ; but it need not be pleaded to acts which are 
 not relied upon as trespasses, but are mere matters of aggravation, 
 and not of substantive charge (g). Where the declaration charges 
 the defendant with breaking and entering the plaintiff's house, and 
 
 (2/) Lawd V. Birhenhead RaU. Co., (h) Fcddo t. Ridge, Yelv. 74, 75 ; ante, 
 
 Johns. 500. Unity Joint Stock Banldng p. 125. 
 
 Assoc. V. King, 25 Beav. 79 ; 27 Law J., (o) Eaylmg v. Olcey, 8 Exch. 545. 
 
 Ch. 585. AnU, pp. 156, 157. (d) Ante, pp. 80, 81. Wickham t. 
 
 (s) Hyde v. Graham, 32 Law J., Exch. Eawher, 7 M. & W. 78. Moore v. Ea/rl 
 
 27; Wai^T.J'ro^rs'aa, 33LawJ.,Exoh. o/i'iymouj;*, 1 Moore, 346 ; 3 B. & Aid. 
 
 5. Addison on Contracts, ch. 28, s. 2, 66. 
 
 Cth ed. But see AlUn v. Walher, L. K., (e) Dayrell v. Hoare, 12 Ad. & E. 368. 
 
 5 Exch. 187. (f) Ourlems v. Laurie, 12 Q. B. 640. ■ 
 
 (a) Keg. Gen. HU. Term, 16 Vict. ; 1 (g) Pratt v. Pratt, 2 Exch. 413. Davi- 
 
 EU. & Bl. App. IxxxL, Ixxxii. son v. Wilson, 11 Q. B. 903. 
 
SECT. 3.] ACTIONS— PLEADINGS. 295 
 
 expelling him therefrom, a plea of justification, showing a good 
 cause for the breaking and entering, is a full answer to the declara- 
 tion, for the breaking and entering are the gist of the action, and 
 the expulsion is only matter of aggravation. If the plaintiff means 
 to insist on the expulsion as making the defendant a trespasser db 
 initio, he must new assign it Qi). 
 
 Justification of trespass under the powers and provisions of an 
 Act of Parliament. — Where the plaintiff complained that the defen- 
 dant had built a bridge which encroached upon and projected over 
 the land of the plaintiff, it was held that the defendant might 
 plead generally that the several acts, matters, and things of which 
 the plaintiif complained were lawfully done by the defendant, in 
 exercise and by virtue of the powers given to the defendant by an 
 Act of Parliament, made, &c., and intituled, &c. (i). When the 
 defendant justifies the demolition of a house under the powers and 
 provisions of the Metropolis Local Management Act (Ic), it must be 
 shown that the person damnified had an opportunity of being heard 
 before the board prior to the exercise of the power (Z). 
 
 Pleas justifying the hreaMng and entering a dwelling-lwuse with- 
 out warrant (m) to make an arrest for felony, or to prevent the 
 commission of murder, must show, in the first case, that a felony 
 had been committed, and .tbat there was reasonable ground for 
 believing that the felon was in the house (n) ; and, in the second 
 case, that the life of some person inside the house was really in 
 danger ; that there were calls for assistance ; that the door was 
 fastened ; and that it was necessary to break it open and enter the 
 house, and render assistance for the preservation of life (o). 
 
 Of pleas of Justification under a prescriptive title. — When the 
 defendant justifies, under a prescriptive right to enter and take a 
 profit of the soil (ante, p. 112, et seq.), he must set forth in his plea 
 an enjoyment as of right, and without interruption for the full 
 period of thirty years before the commencement of the action (p). 
 And when he claims only an easement, he must set forth a similar 
 enjoyment for the period of twenty years. The Prescription Act, 
 2 & 3 Wm. 4, c. 71 (a/nte, p. 115), enacts (s. 5) that in all pleadings 
 where, before the passing of the Act, the party claiming might by 
 law have alleged his right generally, without averring the existence 
 of the right from time immemorial, such general allegation shall 
 
 (h) Taylor v. Cole, 3 T. E. 297 ; 1 U C. B., N. S. 180. 
 
 Smith's L. C. 119—127, 6th ed. (m) As to justification under wanant 
 
 li) Beaver t. Mayor, &c., of Manchester, and in execution of legal process, see post, 
 
 26 Law J., Q. B. 311. Waildns v. Gt. ch. 18. 
 
 Northern Bail. Co., 16 Q. B. 961. As to {,«) Smith v. Shirley, 3 0. B. 142. 
 
 the repHcation to this plea, see Brine v. (o) Handcoch v. Baker, 2 B. & P. 260. 
 
 6t. West. Bail. Co., 31 Law J., Q. B. 101 ; (p) Jones t. Priee, 3 Sc. 376 ; 2 B. N. 
 
 and post, ch. 16. G 52. Claytm v. Corby, 2 Q. B. 813. 
 
 (i) 18 & 19 Vict. c. 120, s. 76. Holford y. HanUnson, 5 Q. B. 584. 
 
 [1) Cooper V. Wandsworth Bom-d, dec, Cooper v. Subbuck, 12 C. B., N. S. 456. 
 
296 TRESPASS ON REALTY. [CHAP. VI. 
 
 be deemed sufacient ; and if the same shall be denied, all the 
 matters mentioned and provided in the Act, which are applicable 
 to the case, shall be admissible in evidence to sustain or rebut such 
 allegation ; and that in all actions and pleadings wherein it would 
 have been necessary, before the passing of the Act, to allege the 
 right to have existed from time immemorial, it shall be sufficient 
 to allege the enjoyment thereof as of right, by the occupiers of the 
 tenement, in respect whereof the same is claimed, for such of the 
 periods named in the Act as may be applicable to the case ; and if 
 the other party intends to rely on any proviso, exception, inca- 
 pacity, disability, contract, agreement, or any matter of fact or of 
 law not inconsistent with the simple fact of enjoyment, the same 
 shall be specially alleged and set forth in answer to the allegation 
 of the claimant {ante, p. 117). A person who pleads a right or 
 privilege in gross, not annexed or appurtenant to an estate in land 
 {ante, p. 96), must show something more than that he is in posses- 
 sion as occupier. He must show that he is either heir or assignee 
 of the person to whom the right is supposed to have been granted {q). 
 
 The nature of the right should be correctly set forth on the face 
 of the plea ; and if the exercise of it is limited to a particular 
 purpose, if it is a right, for example, to enter upon land for the 
 purpose of digging stones and sand for the necessary repair of a 
 dwelling-house, it should be so stated, and that the dwelling-house 
 was out of repair (r). When the defendant justifies under a plea 
 of a right of common, he must by his plea set forth the nature of the 
 right, and show whether he claims by grant or by prescription. If the 
 right be subject to restriction or qualification as to the number of 
 the cattle, or the time of enjoyment, it must be so stated (s). If 
 the right claimed be a right of common by prescription for all 
 commonable cattle, levant and couchant upon a partictilar farm 
 {ante, p. 105), the defendant should set forth by his plea that, at the 
 time of the alleged trespass, he was possessed of a messuage, farm, 
 or land, the occupiers whereof, for thirty years before the commence- 
 ment of the action, enjoyed, as of right and without interruption, 
 common of pasture over the land of the plaintiff for all their com- 
 monable cattle, levant and ' couchant upon the messuage, fann or 
 land of the defendant at all times, or at aU usual or customary 
 times, of the year, as the case may be, and that the alleged trespass 
 was a user by the defendant of the said right of common {t). 
 
 Pleas of justification in the exercise of a right of way. — When 
 the defendant justifies under a plea of a right of way, he should 
 show the nature of the right, and whether it is claimed by grant or 
 
 (g) Bailen v. SUvms, 12 C. B., N. S. («) 1 Wms. Saund. 28, n. 4, 346b. 
 
 91 ; 31 Law J., C. Y. 226. AnU, p. 99. («) 15 & 16 Vict. c. 76, Sched. pi. 47. 
 
 . (r) Peppin v. ShaJcespeare, 6 T. K. 748. 
 
SECT. 3.] PLEADINGS — EIGHT OF -WAY. 297 
 
 by prescription, or as a way by necessity {ante, p. 112, et seq.) (u), 
 setting fortb in the last case the circumstances whereby the land 
 over which the way is claimed became chargfeable with the servi- 
 tude (x). When the plea sets forth a title by prescription, it 
 usually states that the defendant, at the time of the alleged tres- 
 pass, was possessed of a messuage or land, the occupiers whereof, 
 for twenty years before the suit, enjoyed, as of right and without 
 interruption, a way on foot, and with horses, and carriages, and 
 cattle, as the case may be, backwards and forwards from a certain 
 public highway over the land of the plaintiff to the land of the 
 defendant, at all times of the year, for the more convenient occupa- 
 tion of the messuage and land of the defendant, and that the alleged 
 trespass was a user by the defendant of the said way (y). The plea 
 need not name or describe by metes and bounds the lands and 
 closes in respect of which the right is claimed. A general descrip- 
 tion is sufficient ; and if the plaintiff wants detailed information, he 
 must apply for particulars (2). The nature of the right should be 
 correctly stated ; and if the enjoyment of it is limited to particular 
 times or periods, or to particular purposes, it should be so stated in 
 the plea (a). There is one difference between pleading a pubUc and 
 a private way. In the former case, it is not necessary to set out the 
 termini ; in the latter, both must be set out with certainty. It is 
 not necessary, however, to set out the intervening closes over which 
 the way passes (&). 
 
 To an action of trespass for deviating from a highway and 
 trampling down the plaintiff's inclosure, a plea showing that the 
 plaintiff himself stopped up the highway, so that the defendant 
 could not pass, wherefore the defendant went over the plaintiff's 
 close, doing as little damage as he could, constitutes an answer to 
 the action (c). 
 
 Replications traversing the prescriptive right set tip hy the defen- 
 dants pleas. — The fact of the defendant's having the right claimed 
 by his plea may be put in issue by a replication traversing the 
 allegation of the right as set forth in the plea. If the right is 
 claimed by grant, and the answer is that the grant has ceased to 
 operate, the replication must show in what way the grant has ceased 
 to operate {d). Though a prescription pleaded be larger than is 
 necessary for the defendant's justification, the plaintiff must never- 
 theless traverse the whole of it. Since the Prescription Act, a plea 
 setting up a right to a flow of water through a watercourse, and a 
 
 («) ffowton r. Frearson, 8 T. R. 50. (z) Holt v. Daw, 16 Q. B. 995. 
 
 Buckby v. OoW, 5 Taunt. 311. (a) Higham v. Sahett, 5 B. N. C. 621. 
 
 (x) BuUard t. Harrison, 4 M. & S. 392. (I) Simpson v. Lethwaite, 3 B. & Ad. 
 
 Proctor v. Hodgson, 10 Exch. 824. , 233. 
 
 (y) 15 & 16 Vict. c. 76, Sched. 46. (c) Ahsor y. French, 2 S\iov.W. 
 
 Jones T Price, 3 B. N. C. 52; 3 So. 376. {d) Parry v. Thomas, 5 Exch. 41. 
 
298 TRESPASS ON EEALTY. [CHAP. VI. 
 
 right to enter upon the adjoining land for the purpose of cleansing 
 and scouring the watercourse, is held to he a plea of the enjoyment 
 of one entire prescriptive right, and is to be treated as one entire 
 thing, and not as setting up two separate prescrijitions. If a man 
 pleads a prescriptive right to turn on cows, also a right to turn on 
 horses, and also a right to turn on sheep, the plea sets up one entire 
 right, and the plaintiff should traverse the whole (e). 
 
 Traverse of the enjoyment as of right and without interruption. — 
 When the enjoyment as of right and without interruption is 
 traversed by the plaintiff's replication, the defendant must show an 
 uninterrupted rightful enjoyment, and his claim may be answered 
 by proof of a licence, written or parol, for a limited period, falling 
 short of the period relied on. Any evidence negativing the con- 
 tinued enjoyment as of right is admissible under this issue ; and 
 every time that leave is asked for and obtained there is a break in 
 the continuance of the enjoyment (/), because each asking of leave 
 is an admission that, at that time, the asker had no right. Hence 
 it follows that, not only asking leave, but an agreement commenc- 
 ing within the period, may be given in evidence under the general 
 traverse, notwithstanding the words of the fifth section of the 
 Prescription Act ; for the party cannot and does not rely on it as an 
 answer to an enjoyment as of right, which he confesses, nor as 
 avoiding 'any such enjoyment during the time covered by the 
 agreement, but as showing that there was not, at the time when 
 the agreement was made, an enjoyment as of right, and so the 
 continuity is broken, which is inconsistent with the simple fact of 
 enjoyment during the forty or twenty years (g). 
 
 If the plaintiff chooses to reply, and sets up a tenancy for life, 
 he excludes the time of that tenancy, and drives the defendant to 
 show thirty years' enjoyment, either wholly before the tenancy for 
 life, if it be still subsisting, or partly before and partly after, if it be 
 ended. But it has been said, " What if there had been an interrup- 
 tion for two years during the tenancy for life, and within thirty 
 years before the action, is the plaintiff to be deprived of the benefit 
 of such interruption?" The answer is, "No: although the tenant 
 for life cannot, by acquiescence, burthen the estate, he may, by 
 resistance, free it-; and if the plaintiff chooses to avail himself of 
 that resistance, he may traverse the enjoyment as of right for thirty 
 years, and show the interruption." The defendant will not then be 
 allowed to give the tenancy for life in evidence, in order to avoid 
 the effect of the interruption (h). 
 
 \e) PeUr v. Damd, 5 C. B. 568. BrigU v. Walker, 1 C. M. & R. 219. AnU, 
 
 f) Mommuth Canal Co. v. Harford, p. 129, et seq. 
 
 1 0. M. & E. 631. (h) Clapton v. Oorly, 2 Q. B. 825. 
 
 {g) Tickle t. Brown, i Ad. & E. 383. 
 
SECT. 3.] PLEADINGS— PRESCRIPTIVE TITLE. 299 
 
 Heplications traversing the enjoyment of a right of way. — Under 
 a replication denying that the defendant had used a way for forty 
 years as of right and without interruption, the plaintiff is at liberty 
 to show the character and description of the user and enjoyment 
 during any part of the time, as that it was used by stealth, or in the 
 absence of the occupier of the close, and without his knowledge, or 
 that the land was let on lease, and that the user and enjoyment 
 were without the privity of the landlord, and that the latter had no 
 means of knowing what was done upon the land to the prejudice of 
 the inheritance, and could not therefore have prevented it {ante, 
 p. 114), or that the enjoyment was a precarious enjoyment, by leave 
 and licence, or any other circumstances which negative the fact 
 that it was a user and enjoyment as of right {%). 
 
 All acts showing that the defendant's user, although as of right 
 and without interruption for the period specified, was not such a 
 user as would, before the Prescription Act, h^ave been suf&cient to 
 establish a claim by prescription or grant, must be replied specially, 
 and cannot be given in evidence under a traverse of the right of 
 way alleged in the plea (A). 
 
 Facts and circumstances which must be specially replied, and 
 cannot he given in evidence under a general traverse of the enjoyment 
 as of right and without interruption for the periods named in the 
 Prescription Act. — By the fifth section of the Prescription Act {ante, 
 p. 117), it is enacted that if the party resisting the claim intends 
 to rely on any proviso, exception, incapacity, disability, contract, 
 agreement, or other matter thereinbefore mentioned, or on any 
 cause or matter of fact or of law not inconsistent with the simple 
 fact of enjoyment, the same shall be specially alleged and set forth 
 in answer to the allegation of the party claiming, and shall not be 
 received in evidence on any general traverse or denial of such 
 allegation. "The greatest difficulty," observes Lord Denman, 
 " arises from the language of the concluding paragraph of this fifth 
 section of the Prescription Act, and more particularly from the 
 words, ' or any cause or matter of fact or of law not inconsistent 
 with the simple fact of enjoyment.' As all these matters are 
 rec[uired to be specially pleaded, and forbidden to be given in 
 evidence under a general traverse of the enjoyment as of right, it is 
 plain that they are treated by the legislature as consistent with 
 such an enjoyment ; and as, by the nxles of pleading and of logical 
 reasoning, every allegation by way of answer which does not deny 
 the matter to which it is proposed as an answer is taken to confess 
 it, we must conclude that the legislature used the words ' as of 
 right ' in such a sense as that a party confessing the enjoyment as 
 
 (i) Bmley v. Glarhe, 3 Sc. 263. Qc) Kinhch v. Neville, 6 M. & W. 795. 
 
300 ' TRESPASS ON REALTY. [CHAP. VI. 
 
 of right for forty years, or twenty, as the case may be, may account 
 for and avoid the effect of it by alleging, in the one case, a consent 
 or agreement, provided it be by deed or writing (see sec. 2), and in 
 the other, any contract, &c., written or parol (see sec. 5). It follows 
 that the words ' as of right ' cannot be confined to an adverse right 
 from all time, as far as evidence shows ; for if they were so confined, 
 such enjoyment, once confessed, could not be avoided by replying 
 that it was held by contract which is not adverse. Again, as the 
 legal right to a way cannot pass except by deed, it is plain that the 
 words ' enjoyment as of right ' cannot be confined to enjoyment 
 under a strict legal right, for then a ' consent or agreement ' in 
 ' virriting,' not under seal, of which the second section speaks, could 
 not account for such enjoyment. The words, therefore, must have 
 a wider sense ; and yet they must have the same sense as the words 
 ' claiming right thereto,' in the second section, otherwise there will 
 be incongruities in the construction of the Act. It seems, therefore, 
 that the enjoyment as of right must mean an enjoyment had, not 
 secretly or by stealth, or by tacit sufferance, or by permission asked 
 from time to time, on each occasion, or even on many occasions, of 
 using it, but an enjoyment had openly, notoriously, without par- 
 ticular leave at the time, by a person claiming to use it, without 
 danger of being treated as a trespasser, as a matter of right, whether 
 strictly legal by prescription and adverse user, or by deed confer- 
 ring the right, or though not strictly lawful to the extent of 
 excusing a trespass, as by a consent or agreement in writing, not 
 under seal,- in case of a plea for forty years, or by such writing, or 
 parol consent or agreement, contract, or license, in case of a plea for 
 twenty years {ante, p. 116). According to this view of the Act, a 
 license in writing must be replied to a plea of forty years' enjoy- 
 ment, if it cover the whole time, and the same of a parol license, in 
 case of a plea for twenty years " (I). 
 
 Replication of the existence of a tenancy for life during part of 
 the period of enjoyment relied upon hy the plea. — ^Where there. has 
 been a, thirty years' notorious enjoyment of a profit k prendre 
 during a tenancy for life had with the knowledge and acquiescence 
 of the owner of the fee, so as to be an enjoyment as of right within 
 the statute against the inheritance {ante, pp. 120, 121), the tenancy 
 for life must be specially pleaded by the reversioner, in order to 
 exclude such thirty years' enjoyment from the computation of the 
 prescriptive period under the statute. Thus where, in an action of 
 trespass, the defendant pleaded an uninterrupted user and enjoy- 
 ment of a profit &, prendre for thirty years under s. 1 of 2 & 3 Wm. 4, 
 c. 71, and the plaintiff, by his replication, traversed the enjoyment, 
 
 (Z) Per Cur. ThUe v. Brown, 4 Ad. & E. 382. 
 
SECT. 3.] PLEADIX8S — EVIDENCE. .301 
 
 and the defendant, at the trial, proved enjoyment for thirty years 
 next before the action, it was held that the plaintiff was not at 
 liberty to prove a tenancy for life during part of those thirty years, 
 as he had not set it up by his replication (m). 
 
 Rejoinder traversing the fact of the existence of the tenancy for life 
 during part of the period of enjoyment. — If a tenancy for life during 
 the thirty years' period be replied and traversed by the rejoinder, 
 the defendant may insist that the thirty years' enjoyment alleged 
 in the plea is made up of time preceding and following the tenancy 
 for life (n). 
 
 Evidence at the trial — Proof on the part of the plaintiff. — If the 
 plaintiff in his declaration has alleged that he is possessed of a 
 close, and proves possession either of the surface or of the subsoil 
 and minerals beneath the surface, he sustains his declaration (o). 
 Under the plea of not guilty, the plaintiff must be prepared to 
 prove the commission, by the defendant, his servants or agents, of 
 the trespass of which he complains (jp). Where it was proved that 
 the plaintiff was tenant of certain rooms in the defendant's house, 
 and that the defendant unlawfully locked the door and kept him 
 out, it was held that the jury might infer that there had been an 
 actual entry by the defendant into the plaintiff's rooms, so as to 
 support an allegation in a declaration that the defendant broke and 
 entered the rooms of the plaintiff and expelled him therefrom {q). 
 To iix the defendant with a trespass committed by the hand of 
 another, it must be proved that the act was done by command of 
 the defendant, or that it was done for his benefit, and that he sub- 
 sequently adopted and ratified the act (r). 
 
 Where the declaration alleged that the defendant entered the 
 plaintiff's dwelling-house, and continued therein for eight days, it 
 was held that the plaintiff was entitled to show a trespass committed 
 by the defendant in the dwelling-house on any of those days, and 
 that the plaintiff need not prove that the defendant continued there 
 the whole time ; but, when various subsequent acts of trespass are 
 given in evidence, it ought to appear that they were all in con- 
 tinuation, or in furtherance, of the original Avrongful act (s). 
 
 Proof under a traverse of the plaintiff's possession, or right of 
 possession, of the locus in quo. — If the defendant, by his plea, denies 
 the plaintiff's possession, or right of possession, of the 7ocms in quo, 
 the plaintiff must be prepared with general evidence of actual or 
 constructive possession at the time of the commission of the 
 alleged trespass. If the soil and freehold, of the locus in quo are 
 
 (m) Pye v. Mumford, 11 Q. B. 675. (g) Lane t. Dixon, 3 C. B. 776. 
 
 (m) Clayton v. Corhy, 2 Q. B. 813. (r) Ante, pp, 23—26 ; post, ch. 20, s. 2 
 
 (o) Cox V. Olue, ante, p. 62. (s) Perchal y. Stamp, 9 Excli. 174. 
 {p) Ante, p. 290. Com. Dig. Trespass. 
 
302 TRESPASS ON KEALTY. [CHAP. VI. 
 
 ■proved to be in the plaintifC the possession is also presumed to be 
 in him, unless there be some evidence to the contrary (t), for 
 possession follows the property when there is no actual possession 
 in another person (u). Actual or constructive possession, without 
 proof of any title to the soil and freehold, is quite sufficient to 
 support an action against a wrong-doer; for he who commits a 
 trespass upon the possession of another, being himself a wrong- 
 doer, has no right to put the other party to proof of title. A lessee 
 of the vesture or herbage, or a purchaser of growing crops, who has 
 a right to the use of the land for bringing the crops to matiirity, 
 and has, consequently, an interest in the soil, may maintain an 
 action for a trespass upon his close or land against any person who 
 wrongfully comes upon the land, or interferes in any way with the 
 growing crops (x) ; but a purchaser of crops arrived at maturity, 
 who has bought them with a view to their immediate severance as 
 chattels, and has no interest in the soil, cannot maintain an action 
 for a trespass upon the land, but must confine his cause of action to 
 a claim for damages for an injury to goods and chattels (y). 
 
 Very slight evidence of possession is sufficient to establish a 
 primd facie title to sue for an injury to realty, such as the 
 occupation of the soil with stones and rubbish, which have been 
 placed thereon by order of the plaintiff, and kept there for some 
 short time without molestation, or the building of a wall, or a dam, 
 mound, or fence, which goes on for some weeks without interruption, 
 and is then knocked down {£) ; or the inclosure or cultivation of a 
 .piece of waste ground, the mowing of the grass thereof, or the 
 pasturing of a cow thereon ; for mere occupancy of land, however 
 recent, gives a good title to the occupier, whereon he may recover 
 as against aU who cannot prove an older and better title in. them- 
 selves (a). The digging of pits in a common, and throwing out 
 heaps of earth, are primd facie proof of ownership of the heaps cast 
 out, so as to support an action against a wrong-doer for carting 
 away the heaps (6). 
 
 A mere intruder may have a possession sufficient to enable him 
 to maintain an action against a person who does an injury to that 
 possession ; but he cannot maintain any action in which it would 
 be necessary to prove title (c). 
 
 To maintain the action, however, there must in all cases be 
 
 (t) Parke, B., Hebbert v. Thomas, 1 C. (s) Every v- Smith, 26 Law J., Excli. 
 
 M. & K. 864. 345. Dyson r. ColUch, 5 B. & Aid. 600 ; 
 
 (m) Rex v. Mayor, 3fC., of London, 4 T. 1 D. & R 225. 
 
 E' 26. {a) Catteris v. Coioper, 4 Taunt. 547. 
 
 {x) Crosby v. Wadsworth, 6 East, 609. Maison t. Coohe, 6 So. 184 ; 4 B. N. C. 
 
 See Roads V. Overseers of Trumpington, 392. 
 
 L. B., 6 Q. D. 64. (6) Northami v. Bowden, 11 Exch. 72. 
 
 (y) Parker v. Staniland, 11 East, 366. (c) Harper v. Oharksworth, 4 B, & C, 
 
 Evans v, Roberts, 5 13, & C. 837. 689. 
 
SECT. 3.] ACTIONS — EVIDENCE. 303 
 
 proof, either of title or of actual or constructive possession by the 
 plaintiff at the time the trespass was committed {d). Where, 
 therefore, the plaintiff held some marsh-land under a tenant for 
 life, so that his interest ceased on the death of the tenant for life, 
 and at the time of the determination of the life-interest, and down 
 to the time of the commission of the trespass, and the commence- 
 ment of the action, the plaintiff had no servants or cattle, or 
 anything upon the land to show that he continued in possession of 
 it, it was held that there was no proof that he was possessed of 
 the land, and that his action was not maintainable (e). 
 
 Where certain commissioners of sewers placed a dam in a 
 public navigable river, the soil or bed of which was not vested ta 
 them, it was held that they had no such possession of the dam as 
 would enable them to maintain an action against a wrong-doer for 
 pulling it down (/). But if it be proved that contractors or 
 commissioners of public works have got the permission of the 
 owner of the soil for the erection of their works, or it be shown 
 that they and their servants were in the actual possession of the 
 works at the time of the commission of the trespass, this will be 
 sufficient to enable them to mamtain the action {g). 
 
 Where a landowner gave the plaintiff licence or permission to 
 bmld a bridge on his land, for the use of the public, and the 
 plaintiff built the bridge, and the defendant afterwards removed 
 the parapets and carried away the stones, it was held that, on the 
 severance of the stones from the land, they became chattels, the 
 property in which was vested in the plaintiff, and that he was 
 entitled to maintain an action against the defendant for carrying 
 them away (A). 
 
 Navigation commissioners authorised by statute to make a river 
 navigable and form towing-paths, on making compensation to the 
 adjoining landowners, have no such possession of the soil of the 
 towing path, or of the artificial river-banks formed by deepening 
 the river, and throwing out the soil from the bed to the sides of the 
 stream, as will enable them to maintain an action for a trespass for 
 cutting down trees growing in the soU of the towing-path or the 
 banks, although they may have been in the habit of repairing, 
 mowing, and trimming the banks, and exercising acts of ownership 
 over them {i). 
 
 Proof of the possession of the key of a building is no proof of 
 the possession of the building itself {k). 
 
 (d) See Harrison v. Bhchhtrn, 34 L. J,, (g) Dyson v. GolUek, 5 B. & Aid. 600. 
 
 Q p 109. {K} Harrison v. Pwrker, 6 East, 154. 
 
 '(e)' Brmm v. Notley, 3 Exoh. 221 ; 18 (i) Hollis t. Goldfinch, 1 B. & C. 2l8 
 
 Law J., Exch. 39. ^nte, pp. 88, 284. 
 
 (/) Duke of Newcastle v. Clark, 8 (k) Revett v. Brown, 5 Bing. 7. 
 
 Taunt. 621. 
 
304 TRESPASS ON KEALTY. [CHAP. VI. 
 
 If the plaintiff has come into the possession of the land after 
 the trespass was committed, the trespass is not a trespass against 
 him, and he cannot maintain an action in respect of it (t), unless it 
 is a continuing trespass (m). 
 
 Proof by the reversioner. — Wlien the action is brought by the 
 reversioner in respect of some injury to his reversionary estate, 
 proof of the receipt of rent by him will he jorimd facie proof of his 
 title to the reversion. Thus, in an action by the reversioner fbr 
 cutting down trees on land in the possession of his tenant, proof of 
 payment of rent by the latter to the plaintiff \s primd facie evidence 
 of the plaintiff being the reversioner, and of the trees being his 
 property (n). 
 
 Heir-at-law. — To sustain an action by an heir-at-law for 
 trespasses committed upon land descended to him, where he is not 
 in possession of the land, but the action is brought against a 
 trespasser who contests his title, there must be proof of entry by 
 the heir, and, after entry, his right of possession relates back, so as 
 to support an action against a wrong-doer for a trespass committed 
 at an antecedent period (o). 
 
 Proof of disseisin and re-entry. — If one disseises me, and during 
 the disseisin he cuts down the trees or grass, or the corn growing 
 upon the land, and afterwards I re-enter, I shall have an action of 
 trespass against him for the trees, grass, corn, &c. ; for, after my 
 regress, the law, as to the disseisor and his servants, supposes the 
 freehold always continued in me {p). By his re-entry the disseisee 
 is remitted to his first possession, as if he had never been out of 
 possession (g). A person, therefore, who has the freehold and a 
 right to the possession of land may, by a peaceable entry upon the 
 land, acquire sufficient possession of it to enable him to maintain 
 an action for a trespass against any person who, being in possession 
 at the time of his entry, wrongfully continues upon the land (r). 
 It is not necessary that the person who makes the entry should 
 declare that he enters to take possession. It is sufiicieut if he does 
 any act to show his intention, and, having regained constructive 
 possession by his peaceable entry upon the unlawful possession of 
 the occupier, and being entitled to treat the latter as a trespasser, 
 all those who come upon the land without title, after such vestiug 
 of possession, are trespassers, and liable to be sued as such. If a 
 landlord, having a right to the possession of land on the expiration 
 
 {I) Pilgrim v. Southampton, S[C. Rail. (o) Bamett v. Ewrl of Quildford, 24 
 
 Co., 18 Law J., C. P. 332. Law J., Exch. 281 ; 11 Exch 19. 
 
 (m) Holmes t. Wilson, 10 Ad. & E. (p) Liford's case, 11 Co. Eep. 51a. 
 
 503. (g) Solcome v. Ecmlvns, Moore, 461. 
 
 (») Jayne v. Price, ante, p. 270. Dain- {r) Butcher v. Butcher,! B. & C. 402 ; 
 
 try y. Brocklehurst, 3 Exch. 209. " 1 M. & K. 220. MtchfiOd v. Heady, 5 
 
 Esch. 939. 
 
SECT. 3.] EVIDENCE FOR THE DEFENCE. 305 
 
 of a lease, sends liis agent to the land to demand possession, and 
 the agent enters and makes the demand, this is a sufficient entry 
 to clothe the landlord with the constructive possession, so as to 
 enable him to sue in trespass all persons who subsequently come 
 upon the land by the authority of the tenant (s). 
 
 EvidciKcfor the defence. — Under a traverse of the allegation in 
 the declaration, that the close was the close of the plaintiff, the 
 defendant is at liberty to show title in himself, or some other 
 person under whose authority he claims to have acted {t). 
 
 If the defendant relies upon a plea of liberum tenementum {ante, 
 p. 292), he must prove that the land whereon the alleged trespass 
 was committed was his own soil and freehold, and that he was 
 entitled to the possession of it as against the plaintiff. By this 
 plea the defendant admits, as we have seen, that the plaintiff is in 
 possession, and that he himself is, priviA facie, a wrong-doer ; but 
 he undertakes to show a title in himself which shall do away with 
 the presumption arising from the plaintiff's possession. He may 
 do this either by showing title by deed in the usual way, or by 
 proving a possessory title for twenty years (w). If, under this plea, 
 the defendant establishes a title to that part of the close on which 
 the alleged trespass was committed, he will be entitled to a verdict ; 
 for he is not bound to prove a title to the whole close, unless he 
 has upon the record expressly undertaken to prove the whole close 
 to be his soil and freehold {x). 
 
 When the plaintiff has in his declaration described by name 
 or by abuttals the close in which, as he alleges, the trespass was 
 committed, and the defendant pleads Hherum tenementum generally, 
 the defendant cannot, bp showing that he himself is possessed of 
 a close of the same name and in the same viU, turn the plaintiff 
 round, and prevent him from proving a trespass in his own close, as 
 named in the declaration {y). The defendant must make out his 
 title to the freehold on the very spot described in the declaration ; 
 and, on his proving a jprimu facie right to enter the close because 
 it is his freehold, it wiU! be competent to the plaintiff to prove that 
 it has been demised to him, and to show his lease, if he have one (z). 
 Where separate trespasses are alleged to have been committed in 
 three different closes specifically described in the declaration, and 
 the defendant, by his plea, says, in effect, that each of them was 
 his own soil and freehold, the issues will be taken distributively, so 
 that the plaintiff may have a verdict as to one dose, and the 
 defendant as to another {a). 
 
 (s) Hmj T. MoorJiouse, 8 Sc. 168 ; 6 B. {y) Cocker v. Crompton, 1 B. & C. 491. 
 
 jj- Q 52 Lempriire y. ffumphrey, 3 Ad. & E. 18fi. 
 
 '<{)' Jones T. Chcmman, 2 Exch. 812. (z) Hamy v. Brydges, 14 M. & W. 
 
 (u) Brest v. Lever, 7 M. & W. 595. 441 ; 1 Exch. 261. 
 
 x) Smith V. Jloyston, 8 M. & W. 386. (a) Phythim y. White, 1 M. & W. 223, 
 
•306 TRESPASS ON REALTY. [CHAP. TI. 
 
 Proof of leave and license. — If the defendant relies upon a plea 
 of leave and license, he must prove either an express permission 
 from the plaintiff to the defendant to come upon the land (6), 
 or circumstances from which such a permission may fairly he 
 implied (c). If, after a parol license to use a way has been 
 granted, the licensor locks a gate across the way, this is a revoca- 
 tion of the license, and the licensee cannot lawfully break open the 
 gate to use the way (d). A licensee can, of course, take no better 
 title or authority than the licensor himself possesses : and, there- 
 fore, if one tenant in common gives to the defendant license or 
 permission to dig and carry away soU, or brick-earth, or turf, from 
 the estate holden in common, this will give the defendant no right 
 • or title as against the other co-tenant in common, and wiU. afford 
 no answer to an action brought by the latter for a trespass (e). If 
 the license or permission of the wife, daughter, or servant of the 
 plaintiff has been obtained by the defendant, this wUl be no 
 evidence of a license from the plaintiff, unless the surrounding 
 circumstances show that the wife, daughter, or servant had the 
 plaintiff's express or implied authority to grant the license (/). 
 Under a general plea of leave and license, the defendant is bound 
 to prove a license co-extensive with all the acts of which the 
 plaintiff complains ; for if some of those acts are not covered and 
 authorized by the license, the plaintiff will be entitled to damages 
 in respect of them. A license to a defendant to have the key of a 
 house, and "to enter it when he pleases, wiQ not authorize the 
 defendant to enter the house otherwise than by the door; in the 
 ordinary way. If, therefore, the defendant having lost the key, 
 enters the house by a window, he commits a trespass ; and if evil- 
 disposed persons, following his example, get into the house through 
 the same window, and rob the house, the defendant wiU be respon- 
 sible for the damage done {g). 
 
 Where a man is licensed to do a thing, it necessarily implies 
 that he may do everything without which the thing authorized to 
 be done cannot be done (ante, pp. 86, 87). If, therefore, the plaintiff 
 has authorized the defendant to sell furniture and effects in the 
 plaintiff's house, the license extends to all such assistants as may 
 be necessary to enable the defendant to effect the sale and remove 
 the goods (A); A plea of leave and license is not supported by 
 proof that the plaintiff sold to the defendant certain goods and 
 
 ■ chattels which were deposited on the plaintiff's premises, and that 
 
 (i) Kavanagh v. CMge, 7 M. & Gr. (e) Wilhinaon v; Eaygwrth, 12 Q. B. 
 
 ■ 316. US. 
 
 (c) JXtcham r. Bond, 3 Campb. 524. (/) Tm/ler t, Fislier, Cro. Eliz. 246. 
 
 (d) Hyde y. Qralum, 32 Lav J., Exch. HoWringsIumv. Sag, ib. 876. 
 
 27. (g) Aficaater v. MiUmg, 2 D. & R. 714. 
 
 (Ji) Dennett v. Grover, Willes, 195. 
 
SECT. 3.] EVIDEiS^CE UNDER PLEA OF JUSTIFICATION. ■ 307 
 
 tie defendant entered upon the promises to remove the goods, for 
 there is no implied authority to a purchaser to enter upon the 
 vendor's land and help himself to the goods. There must be an. 
 express agreement to that effect (i). 
 
 A license obtained by wilful misrepresentation and deceit is a 
 mere nullity, and will not justify or excuse a trespass by a defen- 
 dant who was a party to the misrepresentation (Jc). And if there 
 has been a mistake and misunderstanding between the parties 
 without fraud, the license wiU be a nullity (f), but the misunder- 
 standing will go in reduction of damages in an action for the 
 unintentional trespass. Under a replication denying the fact of 
 the license, the plaintiff may prove that it was revoked, with notice 
 to the defendant prior to the commission of the trespass (m). A 
 jDarol license to enjoy an easement over or upon the soil and free- 
 hold of another is at once determined, as we have seen, by a transfer 
 of the property, and the grantee of the license is consequently a 
 trespasser, if he afterwards enters iipon the land in the exercise and 
 enjoyment of Ms supposed right, although he has received no notice 
 of the transfer (n). 
 
 Proof of pleas of justification. — If the defendant has pleaded a 
 plea justifying the trespass in the exercise of a privilege, profit k 
 prendre, or easement, he must prove his right or title to the enjoy- 
 ment of the incorporeal hereditament, either under an express- or 
 ianplied grant {ante, p. 84, et seq.), or by prescription (ante, p. 112, 
 et seq.) ; and he must make out his justification as to that part of 
 the close named in the declaration in which the trespass is proved 
 •to have been committed (o) ; but it is not necessary, in support o 
 pleas of user and enjoyment under the Prescription Act, to show 
 an actual exercise of the right in the very spot, when it is parcel of 
 a larger tract. It is. sufficient to show user and enjoj-ment over the 
 larger tract under such circumstances, that it may reasonably be 
 inferred that the right extended over the whole of the larger tract, 
 including the spot in question (p). 
 
 Froofof right of way — Pleas of justification. — If the defendant 
 justifies in the exercise of a right of way [ante, pp. 86, 87, 120, 137, 
 141), he must prove a right co-extensive with the right claimed (j). 
 If he proves a larger and more extensive right than he claims, but 
 the right claimed is included in the more extended right proved, 
 there is, as we have seen, no variance. Thus, a plea of a right of 
 
 (%% WiUiam v. Moms, 8 M. & W. Barnes v. Hunt, 11 East, 451; ante, pp. 
 
 488. 81,82. 
 
 (k) Roper t. Hwrper, 4 B. N. C. 20. (n) WaUu t. Harrison, ante, p. 100. 
 
 m Bridges v. BlancJiard, 1 Ad. & B. (o) BassetC y. MitcheU, 2 B. & Ad. 105. 
 
 551. See Bavies r. MarshaU, 10 C. B., Wood v. Wedgewood, 1 C. B. 277. 
 N S. 697. (P) Peardon v. UnderhiU, 16 Q. B. 
 
 (m) Adams v. Amh-ews, 15 Q. B. 291. 123. 
 
 ^ ' , ■*■ ^^^ Bruitton v. Hall, 1 Q. B. 792. 
 
 X 2 
 
308 TRESPASS ON EEALTY. [CHAP. VI. 
 
 foot-way is supported by proof of a right of way for carts or 
 carriages, as a carriage-way always includes a foot-way (r). A 
 plea of a right of way in the occupiers of certain premises may he 
 established by proof that the defendant is seised of a freehold or 
 copyhold estate in such premises, and that they are in the occupa- 
 tion of a tenant to whom he has demised them ; for a landlord may 
 be constructively an occupier so as to give him a right to use a way 
 appurtenant to his own premises, although those premises are in 
 the possession of a tenant. The landlord of a tenement to which 
 a right of way is appurtenant may, while the tenement is in the 
 occupation of a tenant, lawfully use the way to remove an obstruc- 
 tion, and to assert the right of way, or to view waste, or to demand 
 rent, or for any other purpose connected with the exercise of his 
 rights or duties as a landlord (s). 
 
 A justification .of trespass, under a custom for aU the inhabitants 
 of a particulp,r town to walk and ride over a close of arable land at 
 all seasonable times in the year was held bad, because it appeared 
 that the trespass was committed when the corn was standing, and 
 it was held that " seasonable time " was partly a question of law 
 and partly of fact (t). 
 
 Proof of deviations extra viam in the case of ^private ways. — 
 When a way has once been assigned, or a prescriptive right to go 
 in any particidar direction established, the coitrse or direction of the 
 way cannot be altered by one party without the consent df the 
 other. A grant of a right of way to and from a particular dwelling- 
 house, coach-house, and stables, will not enable the defendant'to go 
 to and from an adjoining spot which he can reach from the same 
 line of road. If there be a grant of a way to a particular corner of 
 a field, the grantee can go to no other part {%). "Where T had a 
 way over the close of H, and H ploughed and sowed his close, 
 leaving a way in an unploughed place in the same close, it was 
 held that T was not bound to use the new unploughed way, but 
 was entitled to go where the ancient way was. H may, however, 
 use the new way as long as it lies open ; but if the owner -after- 
 wards stops up the new way, he has no right , to remove the 
 obstruction and pass along it (a;). In the case of a public highway 
 out of repair, passengers have a right to go upon the adjoining land, 
 but tliis is not the case with a private way. If the passenger 
 deviates, he commits a trespass (y). 
 
 If a man has a right of way to a close called A, he cannot 
 
 (r) Davies v. Stephens, 7 C. & P. 571 ; ShuU r. Glemister, 33 Law J., C. P. 
 
 ante, pp. 151, 152. 185. 
 
 {a) Proud v. ffolUs, 1 B. & C. 9 ; 2 D. (x) Home t. WidUke, Yelv. 141 ; Noy, 
 
 & E. 31. 128. Seignolds v. Ed/wm-ds, Willes, 283. 
 
 (t) .BeZi v.TfcwdeB, Willes, 202. Moun- See ulmte, p. 137. 
 
 gey V. hmay, ante, p. 102. {,/) Taylor v.' WhUeluad, 2 Doug. HI. 
 
 , (u) Hennin'j v. Burnett, 8 Exch. 193. BvUard T. Harrison, i M. & S. 393. 
 
SECT. 3.] EVIDENCE FOE DEFENCE— EIGHT OF WAY. 309 
 
 justify iisiug the way to. go to A, and from thence to another close 
 of Ms own adjoining to A (z). 
 
 Proof of a ptcblic right of way.— Nothing done by a lessee, 
 without the knowledge or consent of the owner of the fee, will, as 
 we have seen (ante, p. 223), give a right of way to the public ; and 
 the public can take no larger or more extensive right of way than 
 the owner of the fee thinks fit to grant or to allow. " They must 
 take secundum formam doni, and if they cannot take according to 
 that, they cannot take at all. If a restriction cannot by law exist 
 as to a public way, then the grant is only a license revocable." 
 Where, therefore, a landowner suffered the public to use for several 
 years a road through his estate for all purposes except that of 
 carrying coals, it was held that this was either a limited dedication 
 of the road to the public or no dedication at all, but only a license 
 revocable ; and that a person carrying coals along the road, after 
 notice not to do so, was a trespasser (a). 
 
 Proof of a right of uxiy over vacant or waste strips of land 
 extending alongside a private thoroughfare. — " When," observes Lord 
 Tenterden, " I see a space of fifty feet, through which a road passes 
 between inclosures set out under an Act of Parliament, I am of 
 opinion that, unless the contrary be shown, the public . are entitled 
 to the whole of that space, although, perhaps, from economy, the 
 whole may not have been kept in repair. If it were once held that 
 only the middle part, which carriages ordinarily run upon, was the 
 road, you might by degrees inclose up to it, so that there would not 
 be room left for two carriages to pass. The space at the sides is 
 also necessary to afford the benefit of air and sun " (S). A highway . 
 board, therefore, or other authority having jurisdiction over a high- 
 way set out under an Enclosure Act, are justified in cutting down 
 trees growing on the space between the highway as actually used, 
 and its boundary as set out in the Enclosure Act, but not, it seems, 
 in selling them, as against the owner of the soil in which they 
 grew (c). 
 
 Proof of entry ott theplainti^'s land for the purpose of depositing 
 thereon the plaintiff's oion goods, or removing therefrom the goods of 
 the defendant. — In EoUe's Abridgment it is said, " If a man comes 
 into my close with an iron bar and sledge, and there breaks my 
 stones, and after departs and leaves the sledge and bar in my close, 
 in an action of trespass for taking and carrying of them away, I 
 may justify the taking of them and putting them in the close of the 
 
 (2) 1 BoU. Abr. 391. (Chimin. Put- & C. 257. As to proof of dedication of 
 
 Vate) cited Allan t. Gonrne, 11 Ad. & B. way, see (jnte, p. 220, et aeq. 
 
 770. (*) ■^''' ^- Wright, ante, p. 225. 
 
 (a) Matawis of Stafford V. Coyrteyi 7 B. (c) Twrnery.RingwoodHighmy Boaird, 
 
 ^ ' L. R., 9 Eq. Ca. 418. 
 
310 TRESPASS ON EEALTY. [CHAP. VI. 
 
 plaintiff himself next adjoining, especially giving notice of it to 
 the plaintiff, inasmuch a5 they were brought into my close of his 
 own tort ; and in such case of tort I am not bound to carry them 
 to the pound, but may well remove the wrong done to myself by 
 them by tort of the plaintiff " (d). An entry on the plaintiffs land 
 may be justified on the gTound that the plaintiff took the defendant's 
 goods and carried them on to his own land, where&re the defendant 
 entered upon the plaintiff's land and took his goods back again (e) ; 
 but the entry is not justifiable from the mere fact of the plaintiff's 
 goods being on the defendant's land. It must be shown that they 
 came there by the plaintiff's act (/). 
 
 Of the damages recoverable m actions for trespasses ufon, real 
 property. — All damages which naturally result from the wrongful 
 act of the defendant, and are directly traceable thereto, may be 
 recovered by the plaintiff, if he claims them in the declaration {g). 
 Where the plaintiff, being desirous of letting his house, placed tbe 
 key under the control of the defendant, and, the key having been 
 carried away, the defendant got a ladder and entered the house 
 through a "bed-room window, which had no fastenings, and showed 
 some strangers over the house, and a few nights afterwards the 
 house was entered, apparently by the same v/indow, and valuable 
 property of the plaintiff was stolen, -it was held that the defendant 
 was responsible in an action of trespass for the loss the plaintiff 
 . sustained by the robbery (/(■). 
 
 Trespasses on land after notice or warning not to trespass. — Sur- 
 rounding circumstances of aggravation will materially influence 
 the amount of damages to be recovered for a trespass upon land. 
 Where the plaintiff, a gentleman of fortune, was shooting upon his 
 estate, and the defendant, a banker and magistrate, and member of 
 parliament, went up to the plaintiff and told him he would join 
 his shooting party, and the plaintiff declined, and ordered him off 
 his land, and gave him notice not to shoot there ; but the defen- 
 dant swore that he would shoot there, and did so, and threatened 
 and defied the plaintiff, and the jury gave 500Z. damages, the court 
 refused to disturb the verdict. "I do not know," observes 
 Gibbs, C. J., " upon what principle we can grant a rule for a new 
 trial in this case, unless we were to lay it down that the jury are 
 not justified in giving more than the absolute pecuniary damage 
 that the plaintiff may sustain. Suppose a gentleman has a paved 
 
 (d) CoU V. Maundy, 1 EoU. Abr. Tres- (/-) PafricJc v. ColeriO:, 3 M. & W. 485. 
 PASS, 1 pi. 17, p. 666. Sea v. Shmard, 2 Anthony v. Sanejji 1 M.. & Sc. 306 ; 8 
 M. & W. 426. ffing. 186. WUUams v. Mon-is, 8 M. & 
 
 (e) 3 Vin. Abr. Tkespass, 1. As to W. 488. 
 
 breaking open a door to get at books and {g) AntCj pp. 74, 76, 155; and post, 
 
 papers, see Burridge Y. Nidlidktts, 30 Law ch. 22. 
 
 J., Exch. 145. Blades V. Higgs, ib. C. P, (h) Ancaeter v. MiHwg, 2 D. & E. 714, 
 
 349, post, p. 336 ; ante, p. 7. ■ ' 
 
SECT. 3.] DAMAGES UfcCOVEKABIE. 311- 
 
 "walk in his paddock before his -windo-w, and; -that a .man" intrudes' 
 and walks up and down before tlie window^ a,nd remains there- after 
 he has been told to go away, and looks in while the owner is' at 
 dinner, is the trespasser to be permitted to say, ' Here is a half- 
 penny for you, which is the full extent of all the mischief I have 
 done,' would that be a compensation ? " (i). 
 
 Where a landlord entered upon premises demised to his tenant, - 
 without asking the leave of the latter, and sold the timber-trees' 
 standing in the hedge-rows, and caused them to be felled, cut up, 
 and removed, and great damage was done to the growing crops of 
 the tenant, and the latter brought an action against the landlord for 
 damages, and recovered 1001. beyond the net value of the whole of 
 the crops, the court declined to interfere to have the amount of 
 damages reconsidered, althoiigh they were of opinion that the jury 
 had taken an exaggerated view of them (Jc). 
 
 Damages in respect of trespasses in dwelling-liouses. — The law 
 guards with great jealousy and watchfulness thepeaceable posses- 
 sion by every man of his dwelling-house, and enables all who have 
 been disturbed in the enjoyment thereof to recover substantial 
 damages from every wilful and intentional intruder, though no 
 actual pecuniary damage can be proved to have been done in point 
 of fact either to property or the person (J). " Eights of action of 
 this sort are given," observes Lord Denman, "in respect of the 
 immediate and present violation of the possession of the plaintiff, 
 independently of his right of property ; they are an extension of 
 that protection which the law throws around the person, and substan- 
 tial damages may be recovered in respect of such rights, though no 
 loss or diminution in the value of prgperty may have occurred " (m). 
 
 Assessment of damages in cases of injury to buildings. — The 
 amount of damages to be recovered in an action of tort for the 
 wrongful and malicious demolition of a house in the actual occu- 
 pation of the owner, seems to be peculiarly for the consideration of 
 a jury. The question for them to determine is, what sum of 
 money will repair the injury done to the plaintiff by the loss of 
 his house, and what sum will be required to replace the house, as 
 nearly as practicable, in the situation and state in which it was at 
 the time of the commission of the injury {n). 
 
 Assessment of damages for digging and carrying away coal and 
 earth. — In an action for a trespass in taking away the plaintiff's 
 coal, he is entitled to recover the value of the coal at the time of 
 its severance from the soil, and the trespasser cannot claim ' any 
 deduction therefrom in respect of the expense incurred by him in 
 
 (i) Meitst V. Harvey, 5 Taunt. 441. {m) Sxxjen V. Spmce, 18 M. & W. 581. 
 
 (k) Wittiams v. Currie, 1 C. B. 847. (n) Duke of Newcastle y. Hvmd/red of 
 
 (I) Sears v. Lyons, 2 Stark 318. Broxtowe, 4 B. & Ad. 282. 
 
312 TEESPASS ON BEALTY. - [CHAP. VI. 
 
 getting or severing the coal (o), unless, there is a real disputed title, 
 or the defendant has taken the coal inadvertently under a lond 
 fide belief that he had a right to do so, in which case the jury may 
 give such an amount only as the plaintiff would have obtained 
 from the defendant on a sale of the coal(j)). This value is the 
 sale price at the pit's mouth, after deducting the expense of caiTy- 
 ing the coals from the place in the mine where they were got to 
 the pit's mouth {q). The' plaintiff is also entitled to compensation 
 for any damage done beyond the removal of the coal, e.g., for all 
 injury done to his soil by digging, and for the trespass committed in 
 dragging the coal along the adit of his mine, &c. if). The estimatu 
 of the loss from the removal of the coal depends upon the value of 
 , the coal at the time of its severance from the soil ; and the defen- 
 dant has no right to any deduction in respect of royalty payable by 
 the plaintiff to the mine-owner on coals got from the mine (s). 
 
 Where an action was brought for digging into the plaintiff's 
 close, and carrying away therefrom large quantities of earth, soil, 
 &c., it was held that the plaintiff was entitled, by way of compen- 
 sation, to what the land was worth to him, and not to the amount 
 which would be required to enable the plaintiff to replace the soil 
 which had been taken away (^). 
 
 Assessment of damages in respect of trespasses bg diseased cattle. — 
 If, in consequence of an unlawful entry of diseased cattle into the 
 plaintiff's close, the plaintiff's cattle have become infected with the 
 disease, this is matter of aggravation of damages, and may be 
 recovered, if claimed in a declaratibn for the trespass (u). 
 
 Assessment of damages where the plaintiff has no certain or deter- 
 minate interest in the property. — If the plaintiff is only tenant on 
 sufferance or tenant at will, the damages may be merely nominal. 
 Where a trespass, of which the plaintiff complained, consisted in 
 puUing down a wall between the close of the plaintiff and an 
 adjoining close of the defendant, in doing which a few bricks and 
 some mortar fell upon the plaintiff's land, and no evidence was 
 given as to the nature of the plaintiff's interest in the premises, 
 and the jury gave Is. damages, it was held, that as the plaintiff had 
 not proved that he had any interest in the land beyond that which 
 results from the bare possession, he had not shown himself to be 
 entitled to any greater damages than the jury had given (a)). But 
 where the plaintiff proves that he is in the actual occupation and 
 
 (o) M<a-tvn v. Porter, 5 M. & W. 352. (q) Lywd Co. v. Brogden, PhUMps v. 
 
 Sec Lijnvi Oo. v. Brogden, L. R., 11 Eq. Homfrmj, supra. 
 Ca. 188. PhUlipa v. Homfray, L. B., ti (r) Jegon, v. Vivian, supi'a> 
 
 Ch. App. 770. (s) Wild v. Mott, 9 M. & W. 672, 
 
 (p) Wood V. Morewood, 3 Q. B. 440n. Morgan v. Powell, 3 Q. B. 283. 
 See HUton v. Woods, JL. R., i Eq. Ca. (t) Janes t. Goodm/, 8 M. & W. 146. 
 
 432. Jegon v. Vimiam,, L. R., 6 Ch. App. («) Anderson v. BucTcton, 1 Str. 192. 
 
 742. (x) Tmjman t. Knowles, 13. C. B* 224. 
 
SECT. 3.] DAMAGES KECOVERABLE — CO-TEESPASSEKS. 313» 
 
 possession of the land and crops grpwing thereon, he will be 
 entitled to recover exemplary damages from trespassers -vvlio wrong- 
 fully enter upon the land, and tramjDle down and injure the crops, 
 although he is only tenant-at-will ; for if a stranger subvert land 
 leased at ^vill, the lessee may bring an action against him and have 
 damages for the proiits ; and the lessor may have another action, 
 and recover damages for the destruction of the land (y). But as the 
 injury consists of two parts, an injury to a temporary right in the 
 lessee and • to the permanent freehold of the lessor, the damages 
 must be assessed with reference to their several interests ; for where 
 different persons have distinct rights in the subject-matter of a 
 trespass, the compensation must be to each in proportion to the 
 injiuy he has received. One of them cannot claim that part of the 
 compensation which belongs to another ; nor can the satisfaction 
 made to one be a bar to an action brought by the other (z). 
 
 Apportionment of damages as heiiveen tenant and reversioner (a). 
 — In the case of injuries to trees, the damages from the immediate 
 loss of the shade and fruit of the trees are recoverable by the occu- 
 pier or lessee ; the damage from the loss of the timber and body of 
 the tree falls to the reversioner (&). To entitle the reversioner to 
 damages, it must be shown that the trespass or injury for which he 
 sues is of a permanent nature ; for he is not entitled to sue, as 
 we have seen (ante, pp. 70, 145), in respect of mere temporary tres- 
 passes, where the repetition of the act, without interruption, would 
 not destroy any right of the reversioner, or establish any adverse 
 right against him ; but if the injury complained of is a damage to 
 the inheritance, so that if the reversioner wanted to sell the rever- 
 sion, the injury would .lessen the value of it, substantial damages 
 are recoverable. In an action for an injury to the plaintiff's rever- 
 sionary interest, by pulling down a house in the occupation of the 
 plaintiff's yearly tenant, it was held that the diminution in the 
 saleable value of the premises was the true criterion of damage, 
 and that the jury should consider how much less the land was 
 worth in consequence of the loss of the house (c). The cutting 
 and carrying away soil is a permanent injury to the reversioner, 
 and an infringement upon his proprietary right, though no actual 
 damage be done to the land (d). 
 
 Damages recoverable from one of several co-trespassers. — Where, 
 in an action for a trespass by the defendant, with horses, &c., upon 
 the plaintiff's land, it appeared that the defendant was the hunts- 
 man of the Berkeley hounds, and that he followed the hounds, 
 
 (?/) 2 Boll. Abr. 551. {V) BedingfiM v. Ondovj, 3 Lev. 211. 
 
 (z) Chambre, J., Attersoll r. St&sens, 1 (c) HosUng y. PhiUipSi 3 Exch. 168. 
 
 Taunt 194- ('*') -^'**<'» ^- Scales, i M. & Sc. 6; 9 
 
 (a) Ante, pp. 75, 76, 155, 213, 2H, Bing. 3. 
 
314 TRESPASS ON EEALTY. [CHAP. VI. 
 
 accompauiecl by a large concourse of persons on foot and-on horse- 
 back, over the plaintiff 's land, and destroyed the fences, and injured 
 the crops. Lord EUenbbrough held that the defendant was answer- 
 able for, the whole of the damage, and directed the jury not to 
 estimate the damage according to the mischief which the defendant 
 had individually occasioned by his trespass, but according to the 
 aggregate amount of mischief done by him, and his co-trespassers, 
 and the hounds (e). 
 
 Damages recoverable from tenants who Jiold over wrongfully of ter 
 the expiration of a notice to quit. — Where a tenant holds over, after 
 the expiration of a notice to quit, the landlord is entitled to recover 
 from him any reasonable damages and costs that may have been 
 sustained by him in an action at the suit of a person to whom he 
 had contracted to let the premises, but to whom he was prevented 
 from delivering possession through the wrongful act of such 
 tenant (/). If the premises have been sublet, and the subtenant 
 holds over against the will of the tenant, the landlord can recover 
 against the tenant as damages the value of the premises for the 
 time he is kept out of possession, and the costs of ejecting the 
 under-tenant (0). 
 
 Trespass for mesne profits. — The action of trespass for mesne 
 profits is consequential to the recovery in ejectment (h), for as no 
 damages are recoverable in ejectment except between landlord and 
 tenant (f), nor any costs where judgment is obtained for want of 
 appearance (/c), and as by bringing ejectment the claimant treats 
 the person in possession as a trespasser from the day mentioned in 
 the writ, and cannot therefore sue him for. rent under an agree- 
 ment (I), or for use and occupation subsequent to that period (m), 
 the person entitled to the possession of the land would be without 
 remedy to recover the profits of the land, from the .date of the 
 service of the writ to the time of the delivery of the land by the 
 sheriff, were it not for this action. In cases between landlord and 
 tenant, indeed, mesne profits are recoverable on the trial of the 
 ejectment upon proof of the claimant's title, that the defendant or 
 his attorney was served with due notice of trial, and of the amount 
 of mesne profits due ; but this case is specially provided for by the 
 214th section of the statute above referred to (n) ; which proceeds 
 to enact that nothing shall prevent any.landlord from bringing an 
 action for tlje mesne profits that have accrued from the date of the 
 verdict to the day of delivery of possession of the premises. And 
 
 (e) JS'ume v. Oldacre, 1 Stark. 352 ; and Pwrher, 2 Burr. 668. 
 seeposf, oil. 22. («) 15 & 16 Vict. 0. 76, s. 214. 
 
 (/) Bramh'j v. Chesterton, 2 C. B,, N, (^) Ibid, sched. A., Nos. 14, 15. 
 
 S. 605. (I) Jones v. CaHer, 15 M. & W. 718. 
 
 (17) Ilendemm v. Squire, L. tl., 4 Q. B. (m) Birch v. Wright, 1 T. R. 378. 
 
 170. (n) And see Smith v, Tett^ 9 Exch'. 
 
 (Ji) Lord Mansfieldj G.3., in Aslvn V. 307. 
 
SECT. 3.] ACTION FOR MESNE PROFITS. 315 
 
 in cases other than between landlord and tenant the rnle is as 
 above stated. 
 
 In this action accordingly the xalaintiff is entitled to recover, 
 1st, compensation for the nse and occnpation of the premises 
 recovered during the time they were actually or constructively 
 occupied by the defendant (o) ; 2ndly, compensation for any special 
 damage that the plaintiff may be legally entitled to in respect of 
 the trespasses, provided it has been claimed in the declaration, as if 
 the defendant has shut up an inn (being the premises in question) 
 and has thereby destroyed the custom {p) ; and lastly, the costs of 
 the action of ejectment {g). The damages under the first head, 
 however, are not confined to the mere rent of the premises, but the 
 jury may give more if they please, as for the plaintiff's trouble in 
 the recovery of the f)remises, &c. (r). 
 
 The action may be brought, although proceedings in error iipon 
 the ejectment may be pending (s), and the prodiiction by the 
 plaintiff of a judgment by default in a previous action of .ejectment 
 for the same premises is sufficient evidence of the plaintiff's title 
 from the date of the writ {fy, and also, as it seems, of the defendant's 
 possession of the premises at that date {u). If, however, the plaintiff 
 seeks to recover mesne profits from a day anterior to that on which 
 possession was claimed in the writ of ejectment, he must be 
 prepared to prove his title in the usual way (x). The action is a 
 local one {y), and may be brought by one tenant in common against 
 his co-tenant (2). The defendant, if in possession by his under- 
 tenant, is not liable for the wrongful holding over of such sub- 
 tenant (a), unless he has authorized it (h). 
 
 Prevention of trespasses hy injunction. — The Court of Chancery 
 wiU not grant an injunction against a temporary trespass by a 
 wrong-doer, inflicting no perinanent injury upon the property, and 
 bemg only a source of temporary annoyance or discomfort, as there 
 is ample remedy at common law for such injuries, and the wrong- 
 doer may at once be turned off the land (c). But whenfever tres- 
 passes have been repeated again and again, so as to become a 
 nuisance, an injunction will be granted against the persevering 
 wrong-doe:^' (d). Neither wiU the court interfere to protect a dry, 
 strict legal title to property held for the benefit of the public. 
 
 (0) Doe y. ffarlow, 12 A. & E. 40. See (x) See Sarnea y. Mwlof Guitdfm-d, 11 
 
 Doe v. ClmUit, 17 Q. B. 166. Exch. 32. 
 
 (p) Dunn V. Lwi-ge, 3 Dougl. 335. i,y) Cole on Ejectment, p. 638. 
 
 (3) Pea/rse v. Coker, L. E., 4 Exch. 92. (z) Goodtitle v. Tombs, sypra. 
 
 88 Law J., Exch. 82. (a) Mansfield, C.J., Surne v. Richmd- 
 
 (r) Goodtitle r. Tombs, 3 Wils. 121. son, 4 Taunt. 720. " 
 
 (s) Donford T. Ellys, 12 Mod. 138. (6) Doe v. ffarlow, mipra. 
 
 (t) See Wilkinspn y. Kirby, 15 C. B. (c) Mortinwr v. • Cottrell, 2 Oox, 205i 
 
 430- Att.-Gen. v. ffaUett, 16 M. & W. 581i 
 
 (m) Pearse v. Coker, svjpra. {d) Coulson v. White, 3 Atk. 2h 
 
316 TRESPASS ON REALTY. [CHAP. VI. 
 
 where tlie liolder has no beneficial enjoj'inent therefrom, and no 
 real substantial injury has been done to the property (e). But 
 where a trespasser comes upon land in the possession of the 
 plaintiff or his tenants, and commits acts of destructive trespass, 
 either by mining, or quarrying, or cutting down timber without a 
 colour, or shadow, or pretence of title, and the property may be 
 destroyed before you can arrest his proceedings at law, there is a 
 case for an injunction (/). Whenever, also, the trespass is of such 
 a nature that irreparable injury will be caused by the repetition of 
 it, and the defendant repeats, or threatens to repeat it, an injunction 
 will be granted to restrain him from so doing. Thus, where the 
 defendant had removed stones protecting the plaintiff's sea-wall, 
 and an action of trespass had been brought, and damages recovered, 
 and the defendant after that began again to remove stones, and by 
 so doing exposed the plaintiff's land to inundation, the court granted 
 an injunction {g). 
 
 But the court will not interfere, at the suit of an owner of 
 property, to restrain a mere stranger from vexatiously distraining 
 on, or otherwise molesting, his tenants in possession of the pro- 
 perty (A), unless the defendant is a pauper, and the wrongful acts 
 are of such a nature that the recovery of damages at law would 
 not constitute an adequate remedy (i). And when the assistance 
 of the court is not invoked for the protection and preservation 
 of property from depredation by a trespasser, but to prevent the 
 enjoyment of a privilege, such as a right of way claimed on 
 one side and denied on the other, the court will not interfere by 
 injunction but leave the parties to their legal remedy. 
 
 Thus, where a tramroad had been made by the defendants across 
 the farm of the plaintiff, with the licence and permission of the 
 occupying tenant, but without the knowledge and consent of the 
 plaintiff, who resided at a distance, and the plaintiff filed a bill for 
 an injunction to prevent the defendants from entering upon the 
 • land and using the tramway, the court refused to interfere. " The 
 thing here complained of," observes the Lord Chancellor, " has been 
 done. The tramroad has, with the leave of the tenant in possession, 
 been completed, and the court is asked -by the bill to restrain the 
 defendants, who, having finished the undertaking, are now in the 
 daily use and occupation of it, from continuing so to use it, and 
 from interrupting the servants and workmen of -the plaintiff in 
 their attempts to destroy it. In other words, the court is virtually 
 
 (fe) ;Wo«cfeto)rf7i Bowrd of Works v. S. Ves. 128. Lonsdale (Ea/ii) v. Curwen, 8 
 tf. Saiit. Co., 31 Law J„ Ch. 854. Bligh, 168, n. 
 
 (/) V.C. Wood,m Talbot (Earl) v. Hope (g) Chalk v. Wi/ait, 3 Mer. 688. 
 Scoti, 4 Kay & J. 113. Thomas fi Oakley, (h) Best v. Drake, 11 Harej 369. 
 
 18 Vesi 186; Cowpier (EoH) y-. Baker, 17 (i) Hodgson v. Suce, 2 Jur. N. S. 
 
 1014. 
 
SECT. 3.] KEMEDY BY INJUNCTION. 317 
 
 asked to eject the defendant, and authorise the plaintiffs themselves 
 to take possession of the tramroad. The case originally may have 
 been a case of waste — waste occasioned by the cutting of the 
 tramroad and the laying the iron rails over the plaintiff's land ; 
 but what is now claimed by the defendants is simply a right of 
 way ; and if they are not entitled to that right, they are mere 
 trespassers, and the plaintiffs have their proper legal remedy against 
 them as such " (Ic). 
 
 However, in cases where irreparable injury would be caused 
 before the right could be properly determined at law, the Court of 
 Chancery wiU interfere by injunction to restrain trespasses by a 
 stranger (Z). 
 
 (i) Deere v. Guest, 1 Myl. & Cr. 522. 
 
 {},) Land. & North-West. Rwy. v. Lane. <fc Yorlcshire Swy., L. B., 4 Eq. Oa. 174. 
 
CHAPTER VII. 
 
 OF TRESPASS AND OONVERSIOIT OP CHATTELS -TITLE TO 
 CHATTELS. 
 
 Section 1 — 0/ treapciss and conversion of 
 chattels.- — Trespass upon pereonalty — 
 Conversion of chattels — Wrongful de- 
 struction of chattels — Conversion by 
 purchasers without title — When a 
 demand and refusal must be proved-^ 
 Demand of goods not in the possession 
 of the defendant — Demand of goods in 
 the hands of public officers, &c. — Con- 
 version of chattels by railway com- 
 panies and bailees — Conversion of bills, 
 notes, and negotiable securities — Con- 
 version by one of several partners, 
 joint-tenants, or tenants in common — 
 Conversion of trust property — Conver- 
 sion by parties claiming a lien upon 
 chattels — Extinguishment of liens. 
 
 Section II. — Of the title to chattels per- . 
 sonal. — Title to chattels which have 
 been increased in value by a wrong- 
 doer — Title to timber severed from 
 the inheritance — Title to chattels by 
 finding — Title to game and animals 
 fersc naturse — Title of the hunter and 
 the fisherman — Title by gift — Eight to 
 deeds, leases, bonds, and securities — 
 Right of property in letters sent by 
 post — Right of possession of deeds and 
 securities as between trustee and cestui 
 que trust — Title by purchase in market 
 overt — Title by private sale — Colour- 
 able transfers — Title of innocent pur- 
 
 chasers from fraudulent vendors — Title 
 to chattels in the hands of bailees- 
 Title by delivery order, or by purchase 
 from sheriffs — Title to bills and notes- 
 Title to the property of bankrupts— 
 Gontraots or dealings with the bank- 
 rupt without notice — ^Executions levied 
 on the property of bankrupts — Trans- 
 fers of property by bankrupts consti- 
 tuting an act of bankruptcy — Reputed 
 ownership of bankrupts — Possession of 
 chattels by manufacturers, workmen, 
 depositaries, factors, and commission 
 agents for sale — Possession by bank-, 
 rupt cestui que trust and bankrupt 
 trustees— Goods in the apparent posses- 
 sion of the bankrupt — Title to trust 
 property — Alteration of the right of 
 property in chattels after recovery of 
 j udgment in an action for a conversion 
 of them. 
 Section III. — Remedies for the turongful 
 conversion of chaMels. — Recapture of 
 goods wrongfully seized or stolen — 
 Parties to actions for a conversion — 
 Joinder of parties — Staying proceedings 
 — Pleadings, defences, and evidence — 
 When the defendant is estopped from 
 disputing the title of the plaintiff — 
 Evidence under pleas of justification- 
 Assessment of damages. 
 
 SECTIOISr I. 
 
 OF TRESPASS AND CONVERSION OF CHATTELS. 
 
 Trespass upon personalty. — If one man meddles with the goods 
 and chattels of another, either by laying hold of, removing, or 
 carrying away inanimate things, or by striking, chasing, or driving 
 cattle, sheep, and domestic animals in which the owner has a 
 .valuable property, he is guilty, of a trespass, and is responsible in 
 
SECT. 1.] TRESPASS ON PEESONAL PKOPERTY. - 319 
 
 damages, unless the act can be justified on the ground that it was 
 done in necessary self-defence of the person, or of property, or of 
 one's absolute or relative rights, or in obedience to some legal or 
 personal authority, or can be excused on the ground that it was the 
 result of inevitable accident, or was caused by the negligent or 
 wrongful act of the plaintiff himself (a) ; as where a man wrong- 
 fully suffers his cattle to trespass upon my land, or leaves thereon 
 corn or hay which he ought to have removed, and his cattle get 
 injured, or his corn or.hay is eaten by my beasts. In these cases 
 he has no remedy for the injury, as it was caused by his own 
 default (&). 
 
 If a man's goods and chattels obstruct nle in the exercise of my 
 right of way, I have a right to remove them. If he places a horse 
 and cart in the way of the access to my house, or before my door, 
 so that I cannot drive up to it, I have a right to lay hold of the 
 horse, and lead him away, and, if necessary, to whip him to make 
 him move on (c). So, if a person's goods are placed on my ground, 
 I may lawfully remove them (d) ; and if his cattle or sheep come 
 upon my land, I may chase them and drive them out. Where the 
 defendant with a little dog chased the plaintiff's sheep out of his 
 grounds, where they were trespassing, and the sheep went into 
 another man's land next adjoining, and the dog pursued them there, 
 and the defendant did his best to recall his dog, but the dog 
 could not be recalled at once, and the plaintiff sued the defendant 
 for chasing and worrying his sheep, it was held that the action was 
 not maintainable, as the defendant had not incited the dog to cha^e 
 the sheep after they had left his premises, but he had done his best 
 to call the dog off (e). Biit the chasing of trespassing beasts with 
 a mastiff dog is unlawful, and if' any damage is done to them by 
 such a dog, the plaintiff will be responsible for a trespass (/). 
 
 If a dangerous animal is let loose by a man who is acquainted 
 with its ferocious disposition, and the animal bites or otherwise 
 violently injures another, an action- for a trespass is maintainable 
 against the person who set it free (g). 
 
 If a dog chases conies in a warren, or game in a preserve, or 
 deer in a park, or sheep in a fold, he may be killed by the owner, 
 of the animals to prevent their destruction (h), but not after the 
 chasing is discontinued and the peril has ceased (i). 
 
 (a) Ante, pp. 2, 19—22; post, ch. 8. 4 Burr. 2094. 
 
 CoNTBiBUTOEY Nbgligenob. (/) King V, Sose, 1 Preem. 347. See 
 
 ib) Webb T. Paternoster, Godb. 282, pi. ante, p. 23. 
 
 401 ■ Farmer v. Hunt, Brownl. 220. (g) Be Grey, C.q"., 3 Wilg. 410. Leame 
 
 (c) Slater v. Swann, 2 Str. 872. v. Bray, ante, p. 2. 
 
 (d) Cole r. Maundy, EolL Abr. Tees- (h) Wadhurst v. Damme, Cro. Jac. 45. 
 PASS 1, pi. 17. ' P- 566. Sea -7. Sheward, Bamngton v. Turner, 3 Lev. 28. 
 2M'&'w!426. W Janson f. Brown, 1 Qatnpb. 41. 
 
 (c) Mitten v. Faudrye, Poph. 161, cited Wells v. Head, 4 C. & P. 568. , 
 
320 CONVERSION OF CHATTELS, [CHAP. VII. 
 
 If a chattel has been lost by one man and found by another, thfe 
 finder has an implied licence or authority from the owner to take 
 the chattel and keep it for his use (Jc). But though the taking of a 
 chattel may be lawful in the first instance, yet if the person who 
 has taken it abuses it, uses it, or wastes it, he may render himself a 
 trespasser ab initio, and disable himself from justifying or excusing 
 the original taking, as well as any of his svibsequent dealings with 
 the property (l). 
 
 Cmiversion of cJiattels. — If a man, who has no right to meddle 
 with goods at all, takes them and removes them from one place to 
 another, an action may be maintained against him for a trespass, but 
 lie is not guilty of a conversion of them, unless he removed the 
 goods for the purpose of taking them away from the plaintiff, or of 
 exercising some dominion or control over them for the benefit of 
 himself or of some other person (m). Thus, where the plaintiff and 
 .defendant, who were porters on the custom-house quay, had each 
 small boxes, in a hut on the quay, for storing small parcels of goods 
 until they could be put on board ship, and the plaintiff placed some 
 goods in the hut in such a manner that the defendant could not get 
 to his box without removing them, which he accordingly did, but 
 forgot to put them back again, and the goods were lost, it was held 
 that the defendant had a right to remove the goods, and so far was 
 in no fault ; but as he had not returned them to the place where he 
 found them, there might be groimd for an action for a trespass in 
 meddling with them, but that there was no conversion of them, as 
 the defendant had not in anywise disturbed the plaintiff's dominion 
 or ownership over the property (n). . 
 
 It has never yet been held that the single act of removing a 
 chattel, independent of any claim over it, either in favour of the 
 person himself or any one else, amounts to a conversion of the 
 chattel. If a gate has been wrongfully erected by the plaintiff, so 
 as to obstruct the defendant's right of way, and the defendant pulls 
 down and carries away the gate and places it on his own land, in a 
 convenient situation for the plaintiff to fetch it away, if he thinks 
 fit so to do, this does not amount to a conversion of the gate (o). 
 " Suppose," observes Eolfe, B., " I, seeing a horse in a ploughed field, 
 thought it had strayed, and, under that impression, led it back to 
 pasture, it is clear that an action would lie against me for a tres- 
 pass ; but would any man say that this amounted to a conversion 
 of the horse to my own use" Q?) ? "Scratching the panel of a 
 carriage would be an act of trespass, but no conversion of the 
 
 <i) hcuik T. Ckurke, 1 EoU. Eep. 130. C. P. 146. 
 
 (i!) Orfet^ -^.WatU, 1 T. E. 12. Attack (m) BmUl T. MWxr, 1 Str. 129. 
 
 V. BrammU, 32 Law j., Q. B. 146. And (o) Houghton v. ButUr, 4 T. E. 364. 
 
 R&epoit, eh. 11, s. 1. (p) FouMes t. WillmwKby, 8 M. & W. 
 
 (m) See Falhe t. Fletcher, 34 Law J., 551. 
 
SECT. l.J WHAT AMOUNTS TO. 321 
 
 carriage " (5-). But any asportation of a chattel for the use of the 
 defendant or some third person is a conversion of it, because it is 
 an act inconsistent with the general right of dominion which the 
 owner of the chattel has in it, who is entitled to the use of it at all 
 times and in all places. 
 
 If a man has possession of my chattel and refuses to deliver it 
 up, knowing or having the means of knowing that I am the owner 
 of it, this is an assertion of a right inconsistent with my general 
 dominion over the chattel, and the use which at all times and in all 
 places I am entitled to make of it, and consequently amounts to an 
 act of conversion (r). Therefore, if a man who is intrusted with 
 the goods of another puts them into the hands of a third person, 
 contrary to orders, it is a conversion. So if the pawnee of goods, 
 with a power of sale, sells them before the day stipulated for the 
 exercise of the power of sale has arrived (s). If a person, without 
 my permission, take my horse to ride, and leave it at an inn, this 
 is a conversion ; for though I may have the horse on sending for 
 him, and paying for the keeping of him, yet it brings a charge on 
 me, and it is different from the case of a misdelivery of goods 
 merely owing to a mistake (t). If a vendor who has sold goods on 
 credit resells the goods before the day of payment has arrived, he is 
 guHty of a conversion (u). And so he is, though the purchaser 
 make default in payment, unless he has given the pm'chaser due 
 notice of his intention to sell (x). However, if a person has 
 obtained possession of goods under colour of a pretended contract of 
 sale on credit, and with the preconceived intention of never paying 
 for them, it is competent to the vendor to consider the contract as 
 a nuUity, and treat the fraudulent purchaser as a person who has 
 tortiously got possession of the goods (2/). If a man enters the 
 house of another, and takes an inventory of his goods, and gives 
 him notice that they are distrained for rent and will be sold, this 
 is evidence of a conversion (z). So if a man takes the property of 
 another without his consent, by abuse of the process of the law, this 
 is an act of conversion (a). And if a person aids and assists in the 
 sale of goods under a fraudulent and void warrant of attorney, he 
 may render himself responsible for a conversion of the property (&), 
 
 If a sheriff sells more goods than are sufficient to satisfy an 
 
 (g) Alderson, B., ib. 549. (x) Page t. Cowasjee Edidgee, L. E., 1 
 
 (r) BaMwin v. Cole, 6 Mod. 212. Bur- P. 0. C. 127. A fortiori therefore if the 
 
 roughes v. Bayne, 5 H. & N. 296 ; 29 vendor retakes possession of the goods 
 
 Law J., Exch. 188. and resells them. S: C. 
 
 (a) Johnson v. Stewr, 33 Law J., C. P. {y) Ferguson v. Catrington, 9 B. & C. 
 
 130. Pigott T. CuUey, ibid. 134. 59. 
 
 (t) Syeds v. Say, 4 T. B. 264. Tear r. (z) Neilau v. Banny, 2 Car. & K. 710. 
 
 ' "',4 0. B., N. S. 263. Needham v. Rawlone, 6 Q. B. 771 n. 
 
 (u) Chirmery v.ViaU, 28 Law J., Exch. («) Grainger v. Sill, 5 So. 577 ; 4 B 
 
 180 ; 5 H. & N. 293. Martindale v. N. C. 221. 
 Umith, 1 Q. B. 389. (*) BiUiter v, Yomg, 6 Ell. & Bl. 1. 
 
322 CONVEESION OF CHATTELS. [CHAP. VII. 
 
 execution, he is liable for a conversion in respect of the excess. 
 Whether he has sold more than was necessary is a question of fact 
 in each particular case (c). If a judgment-debtor, against whom 
 execution is issued, has a qualified interest only as a bailee in goods 
 seized by the sheriff, and the sheriff, having no notice of the quali- 
 fied interest, sells them absolutely, he is not, it seems, guilty of a 
 conversion by the mere act of selling. It must be shown that he 
 parted with the possession of the goods, and caused them to be used ' 
 and damaged by the purchaser (d). If a landlord distrains and 
 carries away goods, and, after selling enough to satisfy the rent in 
 arrear, returns the surplus to the demised premises from whence 
 they were taken, there is no conversion by the landlord of any part 
 of the property, he having dealt with it no otherwise than he was 
 by law entitled to do (e). 
 
 A mere negligent dealing with goods by a bailee to whom they 
 have been delivered (post, ch, 9), is not a conversion of them. He 
 may be liable to an action for negligence, but not to an action for a 
 conversion, which only lies where some dominion is asserted by 
 the defendant over the chattel, the sulgect of the action. One who 
 takes possession of goods unlawfully, which are in consequence lost 
 to the owner, is, to a certain extent, guilty of a conversion; but 
 where there is no unlawful taking of possession or assertion of 
 dominion over the goods, although the goods may be destroyed, 
 there is no conversion. If the goods of one man are consigned to 
 another, whether rightfully or wrongfully, the consignee is justified 
 in depositing them in a place of safe custody, and their destruction 
 there without his default cannot make him guilty of a conver- 
 sion (/). 
 
 Wrmigful destruction of chattels. — Every wilful and wrongful 
 destruction of a chattel," or wilful and wrongful damage to it, 
 whereby the owner is deprived of the use of it in its original state, 
 is a conversion of it. Thus, the taking of wine from a cask, and 
 filling the cask up with water, is a conversion of aU the wine {g). 
 If a bailee of a cask of wine consumes part of the wine, this, 
 as against him, is a conversion of the whole of the wine ; but he 
 cannot himself set it up and rely upon it as a conversion of the 
 whole, so as to enable him in any way to take advantage of his own 
 wrong Qh). But to constitute a conversion by reason of the destruc- 
 tion of chattels by the defendant, it must be shown that he destroyed 
 them with the intention of taking to himself the property in them, 
 or deriving some benefit from them, or with the intention of 
 
 (c) A Idred v. Constable, 6 Q. B. 381. (/) Heald v. Carey, 11 C. B. 993. 
 
 {d) Lancashire Waygon Co. v. Pitzhuyh, \g) Richardson y. AtUnson, 1 Str. 677. 
 
 6 H. & N. 502 ; 30 Law J., Exoh. 231. (A) Patteson, J., PhUpott v. Kellei/, 3 
 
 (e) £rans v. Wi-ight, 2 H. & N. 527 ; Ad. & E. 106. 
 27 Law J., Exch. 50. 
 
SECT. l.J DEMAND AND EEFUSAL. 323 
 
 depriving the plaintiff of the possession or use of them ; for if the 
 defendant, iinding property belonging to the plaintiff encumbering 
 his close, destroys it in endeavouring to remove it, without intend- 
 ing needlessly and wantonly to effect its destruction, this is no 
 conversion of the property (i). 
 
 Fixtures severed from the iiilieritmice so as to become personal 
 chattels, may be made the subject of an action for a conversion, but 
 not whilst they are annexed to the freehold, and form part of the 
 realty {h). 
 
 Conversion of chattels iy purchasers without title. — According to 
 Lord Holt, the very assuming to one's self the property and right 
 of disposing of another man's goods is a conversion of them ; " and 
 certainly ," observes Lord Ellenborough, '■ a man is guilty of a con- 
 version who takes my property by assignment from another, who 
 has no authority to dispose of it ; for what is that but assisting that 
 other in carrying his wrongful act into effect " (l). And if such 
 person acts as agent for another who subsequently, although with- 
 out a knowledge that the sale was Ulegal, adopts it, tlie latter wUl 
 also be liable (m). 
 
 When a demand and refusal must be proved, in order to establish 
 a conversion. — When the chattels of the plaintiff have not been wrong- 
 fully taken possession of by the defendant, but have come into his 
 hands in a lawful manner, he cannot be made responsible for a 
 conversion of them until they have been demanded of him by the 
 owner, or the person entitled to the possession of them, and he has 
 refused to deliver them up. Whenever, therefore, the goods of one 
 man have lawfully come into the hands of another, the owner, or person 
 entitled to the possession of them, should go liimseK, or- send some 
 one with a proper authority, to demand and receive them ; and if the 
 holder of the goods then refuses to deliver them up, or permit them 
 to be removed, there will be evidence of a conversion (n) ; for 
 "whoever," observes Holt, C.J., "takes upon himself to detain 
 another man's goods from him without cause, takes upon himself 
 the right of disposing of them," and is guilty of a conversion (o). 
 The demand and refusal do not in themselves constitute the con- 
 version. They are evidence of a conversion at some previous 
 period {p). 
 
 What is a sufflcient demand and refusal. — If, when goods are 
 demanded, the person in possession of them refuse to deliver them 
 except upon a condition which he has no right to impose (cj), 
 
 (i) Simmons v, UUyatme, 8 Exeh. 442; (n) Thorogood v. Eobinson, 6 Q. B. 772. 
 
 22 Law J., ib. 217. (") Baldwin v. Cole, 6 Mod. 212. 
 
 (h) Oolegrave v. Dios Santos, 2 B. & 0. {p) Wilton t. Girdlestone, 6 B. & Aid. 
 
 78. 
 
 ( 
 
 ( . 
 Excli. 190. 
 
 847. 
 
 (0 itf'ComKe V. CaWcs, 6 East, 540. (q) Dames' v. Vernon, 6 Q. B 450. 
 
 (m) Hilbery v. Hatton, 33 Law J., Cohbett v. Glutton, 2 C. & P. 471. 
 
 Y 2 
 
324 CONVEKSION OF CHATTELS. [CHAP. VII. 
 
 such as the giving a receipt iii writing for the goods if), that is 
 tantamount to an absolute refusal, and he is guilty of a conver- 
 sion. If the person in possession of the goods says, when the goods 
 are demanded of him, that he shall do nothing but what the law 
 requires^ and does' not produce or tend-er the goods, this is evidence 
 of a conversion of them (s). But though he at first refuses, if he 
 afterwards, and before a writ is issued against him, goes to the 
 plaintiff and offers to deliver them up to him, the effect of the 
 previous refusal is done away with, and there is then no evidence 
 of a conversion {t). If the demand is for the delivery of an article 
 to the plaintiff in some particular state and condition, a refusal 
 to comply with the demand is not necessarily a conversion, as the 
 defendant may not be bound, or may be totally unable, to deliver 
 the article in the state required (m). 
 
 So, if the demand is too large ; if the plaintiff, being entitled to 
 demand five beasts, requires seven, and the defendant refuses to 
 give up seven, such a refusal is no evidence of a conversion of the 
 five which were never demanded («). If the goods are not in the 
 possession and under the control of the defendant, he is not guilty 
 of a conversion in refusing to deliver them. If, therefore, at the time 
 of the demand, they have been distrained or attached under legal 
 process, and are in the actual custody of the law, it is no longer in 
 the defendant's power to deliver them up, and he cannot be made 
 responsible for a conversion {y). So where a mortgagee of a vessel 
 demanded possession of it, and it was accordingly delivered to him, 
 but at the time of delivery money was owing to the crew for wages, 
 and the crew took proceedings against the vessel in the Admiralty 
 Court, and the mortgagee had in consequence to pay money to 
 regain possession of the ship, it was held, nevertheless, that he 
 could not recover in an action of trover («). 
 
 " Authorities are not wanting to show that a party is not guilty 
 of a conversion because he does not at once restore the chattel, 
 where it is not at the moment in his possession and under his own 
 immediate control" (a). The ground of the action of trover is a 
 wrongful conversion, and there must be some evidence to show the 
 defendant to be a tort-feasor. Where, therefore, all that appeared 
 was that some wine-warrants, the property of the plaintiff, came to 
 the hands of the defendant in her representative character as 
 administratrix of her deceased husband, that she handed them over 
 
 (r) Bamett v. Grys. Pal. Co., 2 F. & P. M VerraU v. RoUnson, 2 C. M. & B. 
 
 443. 495. 
 
 (s) Dmies r. Nicholas, 7 C. & P. 339. (z) Johnson v. Royal Mail Steam Packet 
 
 (t) Hayward v. Seaward, 1 M. & Sc. Co., L. £., 3 C. P. 38. 
 
 459. ' (a) Wilde, C.J., Towne v. Lewis, 7 0. B. 
 
 (u) Rushworth v. Taylor, 3 Q. B. 700. 611. 
 
 (a;) AMngton v, Lipscomb, 1 Q. B. 780. 
 
SECT. l.J GOODS IN POSSESSION OF THIED PERSONS. 325 
 
 to her attorney, and, when the plaintiff demanded them, said they 
 were in her attorney's hands, it was held that this was no evidence 
 of a conversion (6). 
 
 If there be a demand in words, and also a demand in writing, 
 both being perfect, either of them may be proved as evidence of the 
 conversion (c). 
 
 Ooods not in the possession of the defendant at the time of the 
 demand. — A man cannot be made a bailee {post, ch. 9) of goods 
 against his will, and, therefore, if things are left at his house, or 
 upon his land, without any consent or agreement on his part to 
 take charge of them, he is not thereby made a bailee of them (d) ; 
 and if the goods are demanded of him, and he says he will have 
 nothing whatever to do with the goods, such a declaration, in 
 answer to a demand of the goods, is no evidence of a conversion of 
 them (e), "Where the defendant, on entering into possession of some 
 premises which he had taken on lease, found thereon some timber 
 which had been deposited there by the permission of the previous 
 occupier, and the plaintiff, to whom the timber belonged, demanded 
 it of the defendant, who said, " If you will bring any one to prove 
 it is your property I will give it you, and not else ; " it was held 
 that this C[ualified refusal, taken in connexion with the surrounding 
 circumstances, and the absence of all evidence of any intermeddling 
 with the timber by the defendant, did not amount to evidence of a 
 conversion (/). 
 
 Goods found. — If a man iinds goods and the owner comes and 
 demands them, and the finder says that he will not deliver them to 
 him until he is satisfied that he is the owner of them, and keeps 
 the goods no longer than is reasonably necessary to enable him to 
 make due inquiry, this is no conversion of the property (g). 
 
 Goods deposited in the hands of public officers, servants, and bailees. 
 — Any officer of the customs having the charge or custody of any 
 goods which have come to his hands under the laws relating to the 
 customs, may refuse delivery thereof until proof shall be given to 
 his satisfaction that the freight due upon the goods has been paid (Ji). 
 Where goods, which have been left at sea, are deposited in the hands 
 of an admiral or public officer, to be kept in his custody until 
 salvage has been paid, and he refuses to give them up until it is 
 ascertained whether salvage is due or not, such qualified refusal 
 does not amount to a conversion (*). A servant, who has been 
 intrusted with the custody of goods by his master, does not do his 
 
 (J) Omot T. Hughes, 2 Sc. 663 ; 2 B. (/) Green v. Dwm,, 3 Campb. 216, n. 
 
 N. C. 448. (</) -^s»c^ v. Olarke, 1 Eoll. Eep! 130. 
 
 '(c)' Smith V. Young, 1 Campb. 439. (A) 22 & 23 Vict. c. 87, s. 2. 
 
 (d) Lethhridge v. Phillips, 2 Start. (») Clarh v. Chamberlain, 2 M. & W. 
 
 544.' 83. /sTer/orcZ V. itfondeZ, 28 Law J., Exch. 
 
 (c) ffatvlces v. Dunn, 1 Or. & J. 527. 303. 
 
326 CONVERSION OF CHATTELS. [OHAP. VII. 
 
 duty if he gives them up on the. demand of a stranger, without a 
 previous application to his master for instructions. A refusal, 
 therefore, by a servant to deliver up goods he has received from his 
 master, without an order or authority from the latter, is a qualified, 
 reasonable and justifiable refusal, and no evidence of a conversion (7c). 
 The servant has a right to say, " I received the goods from my 
 master, and he ought to have an opportunity of admitting or reject- 
 ing your title, and of giving his instructions to me in the matter " 
 {post, s. 2) ; but if, after having had an opportunity of receiving, or 
 having received, the instructions of his master, he sets up, or relies 
 upon the title of the latter, and gives an absolute and unqualified 
 refusal to deliver up the goods, he will then, if the person demand- 
 ing the goods be entitled to the possession of them, be guUty of a 
 conversion (J). 
 
 If the owner of goodS' has delivered them to a bailee {post, ch. 9) 
 to keep for him, so that the bailee has received the goods under a 
 valid title, and the bailor, subsequently to the bailment, has, by 
 bill of s&,le, transferred aU his interest to a strknger, who demands 
 the goods of the bailee, and the latter refuses to deliver them up 
 until he has had time to receive the directions of the bailor, there 
 is no evidence of a conversion (m). In an action for a conversion of 
 chattels, it was held by Lord Kenyon, that where the demand of the 
 things for which the action is brought is not made by the owner, 
 who deposited them with the defendant, but by another person on 
 his account, and the defendant refuses to deliver them, on the 
 ground that he does not know whether the things belong to him or 
 not, and therefore keeps them till that is ascertained, or that the 
 person who applies is not properly empowered to receive them, or 
 until he is satisfied by what authority he applies, that is not such a 
 refusal as is evidence of a conversion {n). And if the defendant 
 has a hond fide doubt as to the title of the claimant, it must 
 be shown that reasonable time was given him. for clearing up that 
 doubt (o). But if he sets up the title of his bailor, and affirms 
 him to be the owner, or gives an absolute, unqualified refusal to 
 deliver up the chattels, there is, as we have seen, evidence of a 
 conversion {p). "Where a pony-chaise was delivered to a workman 
 to be painted, and the latter deposited it in the hands of a person 
 who refused to deliver it up to the owner, unless the latter either 
 produced the person who placed the chaise in his hands, or an 
 
 (Ic) Alexander v. Sowthey, 5 B. & Aid. P. 247. Sheridan v. New Quay Co., i 
 
 249. Mires v. SoUbay, 2 Mod. 245. C. B., N. S. 618. 
 
 if) Lee T. EoUnson, 25 Law J., C. P. On) Solomons v. Dawes, 1 Esp. 82. 
 
 249. (o) PUlot V. WUHnson, 32 Law J., 
 
 (m) Lee v. Bayes, 18 C. B. 607 ; 25 Exeh. 201 ; 34 Ibid. 22. 
 
 Law J., 0. P. 249. JEurop. tSi Austr. H. (^) PUlot Y.Wilhmson, supra. Woodky 
 
SECT. l.J BY BAILWAY COMPANIES — BILLS OK NOTES. 327 
 
 order fi;om him for its delivery, it was held that the owner was 
 entitled to the possession of his property, without doing either the 
 One or the other (q). 
 
 If a bailor has no title at the time of the bailment, the bailee 
 can have none, for the bailor can give no better title than he has 
 himself (r). The right to chattels personal, therefore, may be tried 
 in an action against the bailee ; but the situation of the bailee, in 
 cases of disputed ownership to goods in his hands, is not one 
 without remedy. He is not bound to ascertain who has the right. 
 He may iile a bill of interpleader in a court of equity (s) ; or if he is 
 sued in- the superior courts, or the county palatine courts, he may 
 obtain relief under the 1 & 2 Wm. 4, o. 58 (posi, ch. 9, s. 2), which 
 enables defendants sued in those courts to obtain a stay of proceed- 
 ings in the action until the rights of the adverse claimants are 
 ascertained by a judicial decision in the manner therein provided. 
 If the bailee forbears to adopt one or other of these modes of 
 proceeding, and makes himself a party in the matter by retaining 
 the goods for the bailor, he must stand or fall by the title of the 
 latter (t). 
 
 Fraudulent deposits.~-li the deposit of goods with a bailee has 
 been made in furtherance of a fraud, and the bailee has notice of 
 the fraud, the assistance of the Court of Chancery may be obtained 
 for the purpose of enabling the bailee to keep possession of the 
 goods, and prevent the owner of them from obtaining the benefit of 
 a fraud (u). 
 
 CoTwersion of goods hy railway companies. — If goods are brought 
 by mistake, and without right, and delivered at a railway station^ 
 the station-master has no right to detain them after demand by the 
 owner, and the tender of any reasonable expenses due upon them. 
 AVhere, therefore, a station-master said, in answer to a demand of 
 some goods, " The goods were brought to our station by an inter- 
 mediate line, which has no right to send goods here, and I shall 
 send them back," it was held that the railway company was liable 
 for the conversion of the goods {x). But in order to fix the company, 
 it must be shown that the wrongful act was done by their authority ; 
 that is by some person acting for them within the scope of his 
 authority {y). 
 
 Conversion of hills and notes. — A man who holds a bUl of 
 exchange for a particular purpose has no right, without authority, 
 
 (g) Buxton t. Bamghan, 6 C. & P. 674. 12 Law J., Exoh. 117. 
 
 (r) Biddle v. Bond, 6 B. & S. 225 ; 34 iu) Hunt T. Maniere, 34 Law J., Ch. 
 
 Law J., Q. B. 187. 142. 
 
 (s) See SabUcich v. MusseU, L. K., 2 Eq. {x) Roohe t. Mid. Rail. Oo„ 16 Jur. 
 
 Oa. 441. 1069. - 
 
 («) Ld. Tenterden, Wihm v.Anderton, (y) Glover v. Land. & N.-W. Rv>y. die, 
 
 1 B. & Ad. 456. AtUn^on v. Mm-shaU, 6 Exch. 66. 
 
328 CONVEESION OF CHATTELS. [CHAP. Til. 
 
 to go and receive money on the bill, and if he does so, he is 
 responsible for a conversion of the instrument (2). If, therefore, a 
 bill of exchange or negotiable security is delivered into the hands 
 of an agent or mandatory, that he may get it discounted, and he 
 neglects to do so, and pays away the bill or note in furtherance of 
 his own purposes, he is responsible for a conversion of the security (a); 
 but if he pursues the authority given him, and gets the bill dis- 
 counted, but misapplies the proceeds, he is not responsible for 
 the conversion of the security, but for the misapplication of the 
 money (6). 
 
 If a person takes a bill or note after it becomes due, or under 
 such circumstances of suspicion as should have prompted inquiry, 
 he takes it with all its infirmities, and with the risk of its having 
 been lost or stolen (c). 
 
 Conversion of lost or stolen hank-notes or negotioMe securities. — 
 If a bill of exchange, bank-note, or promissory note is lost, and the 
 finder refuses to deliver the instrument to the owner on demand, 
 he is guilty of a conversion of it, and is responsible in damages to 
 the extent of the full value of the security. If the instrument is 
 payable to bearer, and the finder, before any demand is made upon 
 him, delivers the note to another, he is exempt from all further 
 responsibihty in respect of it (d). If the person to whom it is trans- 
 ferred took the note with knowledge of the infirmity of the title of 
 the person from whom he received it (e), or if it is transferred to him 
 for the mere purpose of enabling him to sue upon it, and he has 
 given no value for the instrument, he wiU have no better title than 
 the person from whom he has received it (/), and wOl be responsible 
 for a conversion if he fails to deliver it up to the owner on demand. 
 But if he is a hpnd fide holder for value, and took and discounted 
 the note without any knowledge that the person from whom he 
 received it had no title to it, he becomes the lawful owner of the 
 instrument, and may retain it or pay it away {g). If he has given 
 full value for the instrument, that is in general conclusive evidence 
 of hona fides. If, on the other hand, he has paid a small sum for 
 a bank-note of large value, payable on demand, .that would be 
 evidence the other way Qi). The whole burthen of impeaching the 
 title of the holder of the instrument falls upon the plaintiff, who 
 disputes that title (z). It is not enough for him to show that he 
 
 (2) ^Zsajferv. CZosc, 10 M. &W. 583. {g) Miller \. Race, 1 Burr. 452; 1 
 
 (a) Cranch t. White, 1 B. N. C. 414. Smith's L. C, 6th ed., 468. Grami t. 
 
 Atkins T. Owen, 4 Ad. & E. 819. Yaughan, 3 Burr. 1624. Lawson v. 
 
 (6) Palnxer v. Jamain, 2 M. & W. 282. Weston, 4_Esp. 67. 
 
 (c) Goggerley t. Cuthbert, 2 B. & P. N. (A) Raphael v. Bank of Em/lamd, 17 
 
 E. 170. . 0. B. 173. 
 
 {d) Canot t. Hvghes, ante, p. 325. (i) Wore. Co. Bank v. Dorck. <Ss Milt. 
 
 (e) Burn v. Morris, 2 Cr. & M. 579. Bamk, 10 Cush. 489. Wyer T. Dorch. itc. 
 
 (/) Bailey t. Bidwell, 13 M. & W. 73. Bank, 11 Cush. 51. 
 
SECT. 1.] BY PARTNERS, JOINT-TENANTS, ETC. 329 
 
 lost the instrument, or that it has been stolen from him, and that 
 immediately after the loss or the robbery it was found to be in 
 possession of the defendant (k). The latter is not bound, from 
 proof of those circumstances alone, to account for his possession of 
 the security (I). But if the note is one of unusual value, and is 
 found in the possession of the defendant immediately after the 
 loss, and the latter declines to say from whom he received it, or to 
 give reasonable information of the circumstances under which he 
 became possessed of it, he would be required to prove that he gave 
 value for the instrument (m) ; and if it was payable to bearer on 
 demand, and he gave much less than its real value, and took it 
 from a total stranger, without making any inquiry, and under 
 circumstances which ought to have aroused suspicion in the mind 
 of any prudent person, this will be evidence to show that he took 
 it with knowledge of the infirmity of the title of the person from 
 whom he received it, and to fix him with that infirmity of title. 
 Gross negligence - and want of caution are not in themselves 
 sufficient to defeat the title of the holder, where he has given value 
 for the security (n) ; but gross negligence may be evidence of mala 
 fides, though it is not the same thing (o). 
 
 In the case of stolen notes, if the possession is recent, and the 
 surrounding circumstances such as to show that the defendant stole 
 the note, or received it into his possession knowing it to have been 
 stolen, the plaintiff canjiot maintain his action unless he has 
 prosecuted for the felony {ante, pp. 31 — 33). In all cases he should 
 use diligence to apprise the pubHc of his loss {p). 
 
 Conversion of chattels hy one of several partners, joint-tenants, or 
 tenants-in-common. — The authorities seem to show that one partner 
 or joint-tenant of a chattel cannot maintain an action against his 
 co-tenant for a conversion of the chattel, in consequence of his 
 having taken upon himself to sell the subject-matter of the joint 
 ownership by sale not in market overt, as the sale under such 
 circumstances only transfers to the piu'chaser the vendor's interest 
 in the chattel, and renders the purchaser co-tenant only with the 
 other part-owners ; but if the chattel be destroyed or sold in 
 market overt, so as to transfer the entire property in the chattel to 
 the purchaser, and oust the other part-owners of their proprietary 
 rights, the sale would then amount to a conversion of the property, 
 
 [h) Miller v. Race, supra. Bosky v. CrocTcford, 3 M. & Sc. 701 ; 10 
 
 (/) King v. MUsom, 2 Campb. 5. Bing. 243. And see post, s. 2, Title to 
 
 (to) Bailey v. Mdwdl, 13 M, & W. 76. hiRs and notes. 
 
 (n) Bayley, J., Backhovse v. Harrison, (o) Goodman v. Harvey, i Ad. & E. 
 
 5 B. & Ad. 1105. Raphael T. Banh of 876. Arbouin v. Anderson, 1 Q. B. 504. 
 England, 17 0. B. 161, overruling Snow (p) Beckwithy. Corrall, 11 Moore, 337; 
 
 V. Leatham, 2 C. & P. 317 ; Snow v. Pea- 3 Bing. 444. 
 cocl; 11 Moore, 286; 3 Bing. 406; and 
 
330 CONVERSION OF CHATTELS. [OHAP. VII. 
 
 and the vendor -would be answerable in damages to his other co- 
 tenants (g). 
 
 In Littleton (sect. 323) it is said that, "if two be possessed of 
 chattels personal in common, and one take the whole to himself 
 out of the possession of the other, the other has no remedy but to 
 take this from him who hath done the wrong, to occupy in 
 common, &c., when he can see his time " {r). " This section of 
 Littleton," observes Maule, J., " as it seems to me, is to be under- 
 stood thus — that there may be dispositions of the subject-matter of 
 the tenancy in common which will amount to a conversion, if done 
 by a stranger, that are not so if done by a tenant in common. But 
 I do not think that it therefore follows that no dealing with the 
 thing by one of two tenants in common, which does not amount to 
 a total annihilation of it, can be a conversion as against his co^ 
 tenant. It may be that the co-tenant may, if he think fit, follow 
 the thing and make title to it, notwithstanding its sale and delivery 
 to a third person. But it does not follow that where one tenant 
 in common has dealt with the chattel to an extent exceeding his 
 authority, as where he sells it out and out to a purchaser who 
 carries it away, it would militate against a true understanding of 
 the older authorities to hold that the co-tenant may treat that as a 
 conversion" (s). 
 
 If one of two partners carries off the partnership property, and 
 pledges it without the knowledge or assent of the other, this is not 
 a conversion of the property by the pledgor, and does not render 
 him liable to be sued by his co-partner, as he has a right to pledge 
 to the extent of his limited interest, and to create a lien upon the 
 partnership property (t). Where one of two partners became 
 bankrupt, and the solvent partner directed the defendants to sell 
 some partnership property in their hands, and the defendants sold 
 it, and received the proceeds of the sale, it was held that the 
 assignees of the bankrupt partner had no right to recover any of 
 the proceeds of the sale from the defendant by action at law, but 
 that they must proceed for an account in the court of bankruptcy 
 or in a court of equity (u). 
 
 Wherever the act done by the one tenant in common operates 
 as a total destruction of the thing held in common, there is then a 
 wrong done to the other tenant in common, in respect of which an 
 action is maintainable. " If one of two tenants be of a dove-house, 
 and the one destroys the old doves, whereby the flight is wholly 
 
 iq) CressweU, J., Mayliew v. Herrick, 7 (t) Jones t. Brown, 26 Law J., Bxeh. 
 
 C. B. 249. BamwrdUston v. Chapman, 345. Fennings v. Ld. QrenvMe, 1 Taunt, 
 
 cited 4 East, 121. 248. 
 
 {r) See HolUday t. Oamsell, 1 T. E. (u) Morgam v. Marquis, 9 Exch. 145. 
 
 668. EdAuards v. Roaper, 11 M. & W. 363. 
 
 (s) Mayhew y. Herrick, 7 C. B. 229. See 32 & 33 Vict. c. 71. 
 
SECT. 1.] ■ EIGHT OF LIEN. 331 
 
 lost, the other tenant in common shall have an action for a 
 trespass " (x) " for there can be no tenancy in common of a thing 
 destroyed " (y). 
 
 Conversion of trust property. — Every person who fraudulently 
 receives or possesses himself of trust property is converted by 
 the Court of Chancery into a trustee for the parties beneficially 
 interested in such property, and they have the same rights and 
 remedies against him as they would be entitled to against an 
 express trustee who had fraudulently committed a breach of 
 trust (z). 
 
 Right of lien. — If a defendant, having a lien upon goods {post, 
 ch. 9), refuses to deliver them up on demand, and claims to retain 
 them on grounds quite distinct from a claim of lien, his refusal 
 will be evidence of a conversion, and the existence of the lien will 
 be no answer to an action for the conversion of the property (a). 
 But a person does not waive his right of lien merely by omitting 
 to mention it when the goods are demanded ; and if he claims a 
 right to detain them, in respect of two separate sums claimed to be 
 due to him, and he has a lien only in respect of one of those siims, 
 his refusal is no evidence of a conversion, unless the sum in respect 
 of which the lieii exists is tendered (b). " Where a person," 
 observes Alderson, B., " has no right of property in goods in his 
 possession, but merely a right of lien, he has no right to sell them ; 
 and if he does sell the goods, he thereby puts an end to his 
 lien " (c) ; but where goods have been deposited as security for a 
 loan of money to be repaid on a day certain, there is an implied 
 power of sale in case of default in payment on the day named {d). 
 An unauthorized dealing with a pledge will not, it seems, revest the 
 property in the pledgor, so as to entitle him to bring trover or 
 detinue for the article pledged, though it may give him a special 
 action of tort for any damage actually caused by such unauthorized 
 proceeding (e). And it has been held in equity, that a lender of 
 money on the security of railway stock has no right to realise the 
 security during the currency of the loan, and that, if he does so, 
 the owner may recover from him the price he got for the stock, if 
 it is to his interest to do so (/). 
 
 Ix) Co. Litt. 200a, 200b. {e) White v. SpeUigue, 13 M. & W. 
 
 (y) U Vin. Abr. 516, Joint-Tenants. 608. 
 
 iz) JRolfe V. Qregory, 31 Law J., Ch. (d) Pigot v. CuhUy, 15 C. B., N. S. 
 
 27^4.' ■' 701 ; 33 Law J., C. P. 134. Addison on 
 
 (a) Garmee T. Spmton, 8 So. N. R Contracts, 6th ed., ch. 9, s. 2. 
 
 714 • 7 M. & Gr. 903. DirJis v. Jiicha/rds, (e) Donald v. Suckling, L. E., 1 Q. B. 
 
 5 So N R 534 ; 4 M. & Gr. 674. Weeks 585. Halliday v. Holgate, L. fi., 3 Exch. 
 
 T. ffoo(i^, e'aB., N. S. 367. 299. 
 
 (J)) Scarfe v. Morgan, 4 M. & W. 281. (/) Langton v. Waiie, L. E., 6 Eq. Ca. 
 
 Kerford v. Mondel, 28 Law J., Exch. 165. 
 303. 
 
332 CONVEESION OF CHATTELS. [CHAP. VII. 
 
 Where tlie plaintiff had agreed to buy of the defendant a stack 
 of hay for 86^, to be paid for -when taken away, and to be removed 
 by the 31st of May, and part only of the hay was paid for, and 
 removed by the time appointed, whereupon the defendant, in the 
 month of August following, cut up and consumed the residue of 
 the hay, and the plaintiff afterwards tendered the unpaid purchase- 
 money, and demanded the hay, and sued the defendant for con- 
 verting it to his own use, it was held that the defendant's lien on 
 the hay was determined by the act of conversion ; that from the 
 moment the defendant used the hay in a manner inconsistent with 
 his claim of lien, his lien ceased, and a right of possession accrued 
 to the purchaser {g). Where, however, some apples which had been 
 sold by the defendant to the plaintiff at an agreed price, to be paid 
 on a given day, were deposited in a kiln in an outhouse on the 
 defendant's premises, and the key of the kiln was given by the 
 defendant to the plaintiff, but the defendant kept the key of the 
 outer door of the outhouse, and, the day of payment being passed, 
 the defendant gave the plaintiff notice to take and pay for ,the 
 apples, and, no attention being paid to this notice, the defendant 
 carried them 'away and resold them, and the plaintiff then brought 
 an action for a conversion of them, it was held that the defendant 
 was entitled to a verdict under a plea denying the plaintiff's right 
 of possession of the apples (A)'. 
 
 SECTIOlSr II. 
 
 OF THE TITLE TO CHATTELS PERSONAL (l). 
 
 Title to things altered hy a wrong-doer. — If a man takes away the 
 chattel of another, either by design or accident, and alters it, or 
 improves it, he has no right to detain it from the owner until his 
 alterations and improvements have been paid for. If a man wrong- 
 fully takes away my carriage, and, without any authority from me, 
 sends it to a coachmaker to be repaired or painted, I am entitled 
 
 (fi) Ourry. CMtAicrJ, 12 Law J., Exch. s. 7, see Rohimon t. Briggs, L. E., 6 
 
 Z(j'i. Exoh. 1, and jpost, p. 359. As to what is 
 
 (/i) Mitgaie v. Kehlle, 3 M. & G-r. 100 ; a bill of sale requiring registration or 
 
 3 Sc. N. E. 368. npt, see Johnson v. Ossmton, 38 L. J. 
 
 (i) As to title by bill of fale, see Addi- Exch. 76 ; Byerley v. Prevoit, L. E., 6 
 
 son on Contracts, 6tli ed., p. 136, et seq.; C. P. Hi. As to priority between two 
 
 Massey v. Sladen, L. R., 4 Exch. 13; holders of bills of sale, see ^a!j3twie.4BOT, 
 
 Mercer v. Peterson, L. R., 3 Exch. 104. L. E., 11 Eq. Ca. 209. As to title to 
 
 As to goods in the " apparent possession " ships, see Addison on Contracts, 6th ed., 
 
 of the assignor within the meaning of the pp. 136' — 8, 264, 255; Johnson v. So 
 
 Bills of Sale Act, 17 & 18 Vict. c. 36, Mail Steam Packet Co., h. E., 3 C. P.-i 
 
SECT. 2.] TIMBEK — TXTLE BY FINDING. 333 
 
 to the possession of my carriage without paying for the repairs or 
 painting (/). 
 
 Where, the defendant and tire plaintiff being at play, the 
 plaintiff thrust his money into the defendant's heap, and so inter- 
 mingled the coins that it became impossible to separate them, it 
 was adjudged that the whole heap belonged to the defendant ; and 
 Coke, C.J., said, " The law is, that if J. T. have a heap of corn, 
 and J. D. will intermingle his corn with the corn of J. T., the latter 
 shall have all the corn, because this was done by J. D. of his own 
 wrong" (k). And this case was put by Anderson : " If a goldsmith 
 be melting of gold in a pot, and as he is melting it I will cast gold 
 of mine into the pot, which is melted altogether with the other 
 gold, I have no remedy for my gold, but have lost it; and if a man 
 take my garment, and embroider it with silk or gold, or the like, I 
 may take back my garment ; but if I take the silk from you, and 
 with this face or embroider my garment, you shall not take my 
 garment for your silk which is in it, but are put to your action for 
 taking of the silk from you " (T). 
 
 Title to timler severed from the inheritance. — Whenever timber- 
 trees are severed from the freehold, either by the act of God, as by 
 tempest, or by a trespasser and by wrong, the timber belongs to 
 the person who has the first estate of inheritance, whether in fee or 
 in tail ; and he may bring an action for the conversion of it, or file 
 a bill against the wrong-doer for an account. If, therefore, the 
 tenant-for-life cuts down timber, the timber belongs to the person 
 entitled to the first estate of inheritance (m). But if the wrong- 
 doer has himself the first estate of inheritance, the Court of 
 Chancery will not allow him to take advantage of his own wrong, 
 but will direct the value of the timber to be invested and accumu- 
 lated for the benefit of the remaindermen who may afterwards 
 become entitled to the property (n). 
 
 Title to chattels ly finding. — The finder of a lost article is 
 entitled to the possession of it as against aU persons except the 
 real owner, but he must be an "innocent finder," and must not 
 have taken possession of the property feloniously or fraudulently, 
 knowing, or having the means of knowing, the owner of it, and 
 neglecting to deliver it up to him (o). Where a chimney-sweeper's 
 boy found a jewel, and carried it to a goldsmith's shop to know 
 what it was worth, and delivered it into the hands of the gold- 
 smith's apprentice, who, under the pretence of weighing it, took 
 
 (/) Hiscox V. Oreemuood, 4 Bsp. 174. (») Powlett v. Duchess of Bolton, 3 Ves. 
 
 Yk) Warde \. Eyre, 2 Bulstr. 323. 377. Tullit v. TullU, Ambl. 370. Dwre 
 
 (0 Anon., Poph. 38. v. SopUns, 2 Cox, 110. 
 
 (m) Bewick v. Whitfield, 3 P. Wms. (o) Buckley v. Qross, 32 Law J., Q. B. 
 
 268. Whitfield v. BmU, 2 P. Wms. 241. 129. 
 
334 CONVEESION OF CHATTELS. [CHAP. VII. 
 
 out the stone, and offered the boy three-halfpence for it, which the 
 boy refused, and insisted upon having the jewpl back, whereupon 
 the apprentice delivered him the socket without the stone, and an 
 action was brought against the master for a conversion of the 
 jewel, it was ruled " that the finder of a chattel, though he does 
 not by such finding acquire an absolute property or ownership, yet 
 he has such a property as will enable him to keep it against all but 
 the rightful owner, and, consequently, may maintain an action for 
 the conversion of it " {p). 
 
 Where the plaintiff, on leaving the defendant's shop, picked up 
 a small parcel which was lying on the shop-floor, and showed it to 
 the shopman, and the parcel, on being opened, was found to con- 
 tain bank-notes, and the plaintiff requested the defendant to keep 
 the notes, and deliver them to the owner, and the defendant adver- 
 tised for the owner, and after the lapse of three years, no owner 
 appearing to claim them, the plaintiff applied to the defendant for 
 the notes, offering to pay the expenses of the advertisements, and 
 to indemnify the defendant against any claim in respect of the 
 notes, and the defendant refused to deliver them up, it was held 
 that the plaintiff was entitled to recover them, or the value of them, 
 and that the circumstance of the notes being found by the plaintiff 
 inside the defendant's shop, in the defendant's own house, did not 
 give the defendant any right to detain them as against the plaintiff, 
 who found them there (§'). 
 
 Title to wild hirds and animals ferw naturce — Right of the hunter 
 to the garne he kills. — So long as animals ferce natwcB remain upon 
 a man's land they belong to him, but the moment they leave his 
 land his possessory property is gone ; and this is so, even if they 
 be hunted out of his land by a trespasser, and although they be 
 killed by the trespasser on another man's land. The property in 
 wild grouse is not absolute in any one. So long as the wild bird is 
 upon a man's land he has a possessory property in it, but as soon 
 as it flies or goes off his land, his property is gone (r). If A starts 
 a hare in the ground of B, and hunts it and kiUs it there, the pro- 
 perty continues aU the while in B ; but if A starts a hare in the 
 ground of B, and hunts it into the ground of C, and kills it there, 
 the property has been held to be in A, the hunter, although he is 
 liable to actions of trespass on the lands both of B and C (s). 
 Where rabbits were snared and kiUed in Lord Exeter's land by 
 pqachers, and were sold by them to a dealer in game, it was held 
 
 {p) Armory v. Delamvrie, 1 Str. 305. affirming Lonsdale v. Bigg, 11 Exch. &5i; 
 
 [q) Bridges v. Ha/whesworth, 21 Law J., 25 Ijaw J., Exch. 81. 
 q. B. 75. (a) Holt, C.J., Sutton v. Moody, 1 Ld. 
 
 (!•) Higg V. Lonsdale, 1 H. & N. 923, Baym. 250. Churchward t. Siuddy, 14 
 
 East, 249, 
 
SECT. 2.] TITLE TO GAME, FISH, ETC. 335 
 
 that the rabbits were the property of Lord Exeter, on whose land 
 they .were started and killed, and not the property of the dealer in 
 game (^). And where rabbits are bred in a warren, the owner' of 
 the warren has a right of property in the rabbits so long as they 
 remain on his land, but as soon as they leave his land his right of 
 property in them is gone (u). 
 
 Where the Bishop of London granted to the defendant a lease 
 of land for a term of years, excepting the trees and the herons and 
 shovellers making their nests in the trees, and the defendant, during 
 the lease, took some of the herons, and the bishop brought an 
 action of trespass against him, it was held that he was entitled to 
 recover the value of the herons ; for although they were ferai 
 naturce, he had an interest in them by reason of the trees in which 
 they built (x). 
 
 Title of the fisherman to the fish he harpoons or nets.^-li a whale 
 has been struck by a harpooner, the whale, so long as the harpoon 
 remains in the fish, and the line continues attached to it, and also 
 continues in the power or management of the striker, is a fast fish, 
 though during that time it is struck by a harpooner of another 
 ship ; and if the whale afterwards breaks from the first harpoon, 
 but continues fast to the second, the second harpoon is called a 
 friendly harpoon, and the fish is the property of the first striker, 
 and of him alone. But if the first harpoon or line breaks, or the 
 line attached to the harpoon is not in the power of the striker, the 
 fish is a loose fish, and will become the property of any other per- 
 son who strikes and obtains - it (y). But although the harpoon 
 comes out of the fish, or is detached from the line, yet if the whale 
 is so entangled in the rope as ±o give the first strikers the same 
 power over it as if the harpoon was fixed, the fish will still con- 
 tinue a fast fish, and be the property of the first strikers (z) ; and 
 if the fish is unlawfully liberated by the wrongful interference of 
 a third party, who afterwards harpoons it and secures it, it will, 
 nevertheless, be the property of the first strikers (a). Bat if the 
 interference of such third party takes place before the fisherman 
 has got the fish into his power, or under his dominion and control, 
 there can be no right of property in, or title to, the fish (S). Thus, 
 where the plaintiff, whilst fishing for pilchards, had nearly encom- 
 passed a vast quantity of fish with a net, and would have captured 
 the whole of them but for the interference of the defendant, who 
 
 (t) Blades v. Bi</gs, 12 C. B., N. S. 501 ; note (a). Aberdeen Arctic Co. v. Sutter, 
 
 31 Law J., 0. P. 151 ; 32 ib. 182 ; 34 ib. 6 Law T. R, N. S. 229 ; 10 W. E. 516, 
 
 286 (Dom. Proc). . H. L. 
 
 (a) Bro. Abr. Property, pi. 4. Hades- (z) Ilogwi-th v. Jackson, M. & M. 58. 
 
 den V. Gryssell, ante, p. lIO. (a) SUnner v. Chapman, M. & M. 
 
 {x) BUlwp of London's case, 14 Hen. 8, 59, n. 
 f. 1. ' ' .(6) Erie, J., /Stei'ms V. /eacocie, 11 Q. B. 
 
 ' (y) Littledale v. Scaitli, 1 Taunt. 243, 741. 
 
336 I ■ CONVEKSION OF CHATTELS. [CHAP. VII. 
 
 came with boats' and sailors, and drove the fish into his own nets 
 and captured them, it was held that the plaintiff could set up no 
 title to the fish, as he never had them under his dominion and 
 control, but ought to have sued the defendant for interfering with 
 his nets, and unjustifiably preventing the plaintiff from exercising 
 his occupation and calling of a fisherman, and catching the fish (c). 
 
 Title to chattels hj gift. — If a verbal gift has been made of a 
 piece of plate, or other valuable chattel, to a person to whom it has 
 been delivered to be kept, the verbal gift, unaccompanied by any 
 transfer of possession, cannot, it has been held, transfer any pro- 
 perty in the chattel to the donee. There must be either an actual 
 manual delivery, if the chattel is capable of manual occupation and 
 delivery, or a constructive delivery, if the article is bulky and 
 incapable of manual transfer; or there must be a. deed of gift 
 under seal, in order to clothe the donee with the ownership and 
 right of possession of the chattel (d). However, although the pro- 
 perty in the chattels may not pass at law, an agreement not under 
 seal may be sufficient to create such an equitable interest in them, 
 as to justify the sheriff in not seizing them, while in the possession 
 of the apparent owner, under a writ otji.fa. (e). 
 
 Title to clothes hy hiring and service. — Where the plaintiff had 
 been hired as a servant by the defendant, at thirty guineas a- year 
 and a suit of clothes, and had, on entering the service, been provided" 
 with the clothes, it was held that they did not become his property, 
 and that he could not sue his master <for detaining them until he 
 had served a year (/). 
 
 Of the right to the possession of grants of arms, title-deeds, leases, 
 hands, and securities. — A deed of grant of arms from the Heralds' 
 College is a sort of family document in which every member of the 
 family whose claim to arms is dependent upon it, has an interest. 
 Whatever member of the family, therefore, has got possession of it 
 is entitled to keep it, but may be called on to produce it (g). But 
 if the grant is taken out at the joint expense of three members of a 
 family, the deed belongs to the survivor. The owner of a freehold 
 estate has, in general, a right to the title-deeds, the right to the 
 deeds following the right to the lands. Where, therefore, a man 
 conveyed his freehold estate by way of mortgage to the plaintiff, 
 and handed over to the plaintiff forged and counterfeit title-deeds, 
 and then deposited the genuine deeds with a banker as security for 
 a loan, and the plaintiff brought an action against the banker for 
 
 (c) Young v. Hickens, 6 Q. B. 606. (c) Brown v. Bateman, L. E., 2 0. P. 
 See the Sea Fisheries Act, 1868, 31 & 32 272. " 
 
 Vict. c. 45. (/) Crocker v. Molyneux, 3 0. & P. 
 
 (d) Irons t. SmalVpieee, 2 B. & Aid. 470. 
 
 651. Shower v. POck, 4 Exch. 478 ; 19 (</) Stvis t. Stubs, \ H. & C. 257 ; 31 
 
 Law J.. Exch. 113. La^f J., Exch, 510, 
 
SECT. 2.] TITLE DEEDS — SECURITIES — LETTERS. 3 37 
 
 the deedSj it was held that he was entitled to recover them (h). 
 The tenant for life has a right to the title-deeds of the estate, and 
 may maintain an action against a remainderman who has them in 
 his possession and refuses to give them up (i) ; hut on the death 'of 
 the tenant for life the remainderman is entitled to the deeds Qc). 
 A lessee, to whom a lease has heen delivered, has a right to the 
 possession of the lease, both during the term and after its expiration, 
 so that the lessor has no right to claim possession of it from the 
 lessee (I). The ohligee of a bond also, to whom the bond has been 
 delivered, is not bound to deliver it up to the obligor on being 
 tendered the amount due upon it. The obligor is entitled to an 
 acquittance or an acknowledgment of the receipt of the money 
 due upon the bond, but not to the possession of the instrument 
 itself (m). Neither is the payee of a note not negotiable bound to 
 deliver up possession of the note to the maker on receiving the 
 amount due upon it (n). 
 
 Right to the possession of documents and securities for money as 
 between trustee and cestui que trust; — The person entitled to the 
 beneficial interest in a contract or security for money is, in general, 
 entitled to the custody of the document or writing by which the 
 beneficial interest or money is. secured. If, therefore, the defendant 
 has obtained possession of a policy of insurance to which the 
 plaintiff is equitably entitled, he is responsible for a conversion of 
 the property if he faUs to restore it after demand, as the person 
 entitled to the equitable interest in the document is legally entitled 
 to the custody of it (o). 
 
 The right of property in letters is in the receiver, oi^ person to 
 whom they are addressed and delivered, so far as regards the paper 
 on which they are written. If, therefor^, they get back into the 
 hands of the writer, the receiver is entitled to have them returned 
 to him ; but he has no right to publish them without leave from 
 the writer (jp). 
 
 Title to chattels ly purchase in market overt. — At common law the 
 right of property in things sold is changed permanently by a sale in 
 market overt (q), so that whoever buys goods and chattels in the 
 open, piiblic, legally constituted market, acquires an indefeasible title 
 
 (h) Neivton r.Bech, 3 H.&N. 220; 27 (m) Littledale, J., in Wain v. Baileij, 
 
 Law J., Exch. 272. 10 Ad. & B. 618. 
 
 (i) AUwood T. Heywood, 32 Law J., C. («) Wain v. Bailey, supra. 
 
 P. 153. See Newton v. Nevdov., L. E., 4 (o) OUver t. Oliver, 11 C. B., N. S. 139; 
 
 Ch. App. 143. And as between trustee 31 Law J., C. P. 4. 
 
 and cestui que trust, see Stanford v. So- (p) Watson v. Maclean, E. B. & E. 77. 
 
 berts, L. R, 6 Ch. App. 307. (?) See Crane t. London Dock Co., 33 
 
 (h) Boston V. London, 33 Law J., Exch. Law J., Q. B. 224. As to the sale of a 
 
 34_ ship formerly engaged in acts of piracy, 
 
 (I) Sail V. Ball, 3 M. & Gr. 242. or of goods taken by pirates, to third 
 
 Elworthii V. Sandford, 34 Law J., Exch. persons, see Seg. v. McCleverty, L. R., 3 
 
 42 P. C. C. 673. 
 
338 CONVERSION OF CHATTELS. [CHAP. VII. 
 
 to the chattels so purchased, unless he buys with knowledge of an 
 infirmity of title on the part of his vendor. But iu order to put a 
 check upon the transfer of stolen property, and induce persons who 
 have been robbed to do their duty to society by prosecuting and 
 convicting the thief, it is enacted by the 24 & 25 Vict. c. 96, s. 100, 
 re-enacting the 7 &' 8 Geo. 4, c. 29, s. 57, that if any person guilty 
 of any such felony or misdemeanour as is mentioned in the Act, in 
 steaUng, taking, obtaining, extorting, embezzling, converting, or 
 disposing of, or in knowingly receiving, any chattel, money, valu- 
 able security, or other property whatsoever, shall be indicted for 
 such offence on behalf of the owner, his executor, &c., and con- 
 victed thereof, the property shall he restored to the owner, or his 
 representative ; and the court before whom any person shaH be 
 tried' for any such felony or misdemeanour shall have power to 
 award restitution thereof The order of restitution, however, is not 
 necessary to revest the right of property in the person robbed, 
 under the above section, and to enable him to foUow goods sold in 
 rtiarket overt (r). 
 
 During the interval between the commission of the felony and 
 the conviction the purchaser has a primd facie title, liable to be 
 defeated by the conviction (s); and persons who purchase during 
 that period, and have the good fortune to seU again before the 
 conviction, cannot be subjected to an action for taking or converting 
 the stolen property. Thus, where the plaintiff, who had been 
 robbed of some sheepi and was prosecuting the thief, gave notice 
 of the robbery to the defendant, who had purchased the sheep m 
 market overt, not knowing them to have been stolen, and required 
 the defendant to deliver up the sheep to him, which the defendant 
 refused to do, and sold the sheep again before the conviction of the 
 felon, it was held that the defendant was not responsible for a 
 conversion^ " The plaintiff," observes Buller, J., " could not demand 
 the sheep of the defendant, merely because they had been stolen 
 from him, for it was not then certain that the felony would be 
 followed by a conviction " of the offender." The plaintiff must 
 p'rove that the sheep were his property, and that while they were 
 so they came into the defendant's possession, who converted them 
 to his use. But here the plaintiff's property did not revest in him 
 tiU after the conviction of the felon ; and from the time of the 
 conviction the defendant has never had possession of the sheep (t). 
 
 Title to chattels by private sale and transfer. — A. person who 
 buys goods by private contract, and not by public sale in market 
 overt, acquires no better title than that possessed by his immediate 
 
 (r) Scattergood v. Silvester, 15 Q. B. («) fforwood y. Smith, 2 T. E. 756. 
 
 511 ; 19. Law J., Q. B. 447. Oimson v. WoodfaM, 2 C. & P. 41. 
 
 (s) Peer t. Humpli/rey, 2 Ad. & B. 495. 
 
SECT. 2.] PUBLIC OE PrjVATE SALE. 339 
 
 vendor. If he iiurohases, at a sheriff's sale or a pawnbroker's 
 auctiou, property which the sheriff or the pawnbroker had no 
 right to sell, he acquires no title as against tlie true owner of 
 such property (u). Whenever, therefore, a purchaser buys of the 
 . servant or agent of the owner out of market overt, he takes the 
 risk of the servant's having sold without authority ; and if the 
 servant had no authority to sell, and the purchaser refuses to give 
 up the subject-matter of the sale op demand to the master, he is 
 guilty of a conversion (x) ; but where the owner of goods has 
 intrusted another with the possession of goods in order that he 
 may sell them, and the person so intrusted sells contrary to the 
 secret instruction of the owner,, the purchaser wUl nevertheless 
 acquire a perfect and complete title by the sale (y). 
 
 A pui'chase of stolen property, out of market overt does not 
 convey any right of property in the thing sold to the purchaser, 
 although he may have purchased hond fide for a valuable con- 
 sideration, and without notice of the felony. A person, therefore, 
 who has been robbed may follow the stolen property, and is entitled 
 to recover it from lond fide purchasers who have not bought it in 
 the open public market, although the thief has not been convicted 
 of the felony. In like manner, if the property has been, pledged 
 with a pawnbroker, or any bther person, he may sue the pawnbroker, 
 or other pledgee, for detaining or converting the property, although 
 he has not prosecuted the thief, nor taken any steps to put the 
 criminal law in motion {£). But if the pawnbroker or pledgee 
 received the goods knowing them to have been stolen, the owner of 
 the property cannot. then maintain an action against the latter until 
 he has prosecuted for the. felony. 
 
 Wlaenever by a contract of sale, made either by the plaintiff in 
 person, or through the medium of his agent, both the right of 
 property and the. right of possession of the thing sold have passed 
 to the plaintiff, he is entitled to maintain an action for the unlawful 
 taking, detaining, or converting of the thing which has thus become 
 his own property. Wliere the plaintiff commissioned her. brother 
 to buy a cow for her when he. should meet one which he thought 
 would suit her, and the brother bought a cow, and as it was being 
 driven home, and before the plaintiff knew of or had assented to " 
 the purchase, the cow was seized by a .creditor of the brother, it was 
 held that the plaintiff was entitled to maintain an action of trespass 
 for the seizure. of the: cow, it being her property (a). 
 
 (u) Farramt v. , 3 Stark, 130. (y) Addison on Confraots, 6th ed., 
 
 Oliamnan v. SpdUr, 14 Q. B. 621 ; 19 p. 162. 
 
 Law J- -Q B. 239. MorUy v. Atten- (z) White y.Speltigm,lZM.k'W.&OS. 
 
 boroiu/h' 3 Bxch. 50o! -■£«« t. Bayes, 18 0. B. 599. 
 
 ■ Payne v. Srander, 2 Stark. 568 
 z 2 
 
 (x) Metcalfe t. Limsden, 1 C. & K. {a) Tliomas y. PhUlips, 7 G. & P. 570. 
 
340 CONVERSION OF CHATTELS. [CHAP. VII. 
 
 When specific ascertained chattels have been sold at a fixed 
 price, the seller is bound to deliver them whenever they are 
 demanded, upon payment of the price ; but the buyer has no right 
 to the possession of the chattels until he pays or tenders the price, 
 unless the goods are sold upon credit (6). Where a debtor shipped 
 goods on boEtrd a vessel at Newcastle, to be delivered to his 
 creditor, the plaintiff, in London, and forwarded to the latter a 
 receipt, signed by the mate, acknowledgibg the receipt of the goods 
 on board, to be delivered to the plaintiff, it was held that the 
 property and right of possession in the goods vested in the plaintiff 
 so as to entitle him to maintain an action against a defendant for 
 the non-delivery of the goods (c). Whether the property in goods, 
 to which something remains to be done before they are ready 
 to be delivered, passes to the buyer at ^ the time of the sale, or 
 on the completion of the goods, depends on the intention of the 
 parties (d). 
 
 Colourable transfers. — If a transfer of property has been actually 
 effected either by a deed of transfer or by actual delivery, it is not 
 competent to either of the parties to the transfer to set up or show 
 that it was done for the purpose of effecting a fraud on third 
 persons. Acts done may be valid as between the parties, though 
 void as to others. Thus, an assignment made for the purpose of 
 defeating one of several creditors is a good deed as between the 
 parties, but void as against creditors ; but if there has been no 
 actual transfer of the property, but only a deposit of chattels, in the 
 hands of a bailee, for the purpose of defeating a creditor, the deposi- 
 tary cannot set up the fraudulent character of the deposit in order 
 to deprive the plaintiff of goods wliich are his property, and to 
 which the depositary has no^ semblance of title (e). 
 
 Title of innocent purchasers from fraudulent vendors. — ^A contract 
 for the sale of goods, though obtained by fraud, is perfectly good 
 if the person defrauded thinks fit to rely upon it and enforce it ; but 
 the latter may, if he pleases, as soon as he discovers the fraud, and 
 before 1;he rights of innocent third parties have intervened, disaf&rm 
 and annul the contract (/), and treat the person who has been 
 guilty of the fraud as a tort-feasor. If a vendor has parted with 
 the possession of goods in fulfilment of a contract of sale, obtained 
 by fraud on the part of the purchaser^ he cannot, after the goods 
 have been resold, and passed into the hands of a 6oji^ j?& sub- 
 purchaser, disaffirm, the contract, and annul the title of the latter to 
 the property ; for where one of two innocent persons must suffer, 
 
 (6) Bhxam v. Sanders, 4 B. & 0. 948. (c) Bowes v. Foster, 2 H. & N. 779 j 27 
 
 (c) Evans v. Nichol; 4 So, N. E. 53 ; 3 Law J., Exch. 262. 
 
 M. & Gr. 614. (/) See Clough v. Z. & N.-W. Bvnj., 
 
 (d) Young v. Matthews, L. E., 2 C. P. L. E., 7 Exch. 26. 
 127. 
 
SECT. 2.] TITLE TO GOODS PEOCUEED BY FRAUD. 341 
 
 it is considered to be more just tliat the burthen should fall upon 
 the vendor who parted with the possession of his, goods, who trusted 
 to A lie, and was the victim of his own credulity, rather than upon 
 the bond fide sub-purchaser, who trusted to the actual possession of 
 the goods by the person with whom he dealt. " If this were not 
 so," observes Jervis, C.J., "goods at all tainted by fraud might be 
 followed through any number of bond fide, purchasers— a most 
 inconvenient and absurd doctrine ; for a vendor who does not choose 
 to avail himseK of means of inquiry would thus, by trusting the 
 vendee, be giving liim unlimited means of defrauding the rest of 
 the world" {g). 
 
 But if the relation of vendor and vendee does not subsist 
 between the original owner and the person who commits the fraud, 
 and the goods have been obtained by false pretences, and after- 
 wards disposed of to a tond fide, pxirchaser by sale not in market 
 overt, the latter does not acqiiire a title to the goods as against the 
 person who has been defrauded (A). Where, therefore, the plaintiff 
 had sold a quantity of tartaric acid, to be delivered to the order of 
 their purchaser, and one Anderson came to the plaintiffs and repre- 
 sented himself to be a sub-purchaser of the acid, and upon the 
 strength of such representation obtained a delivery-order from the 
 plaintiffs, and got possession of the acid and pledged it with the 
 defendants, it was held that the defendants could make no title to 
 the acid through Anderson, who had obtained the transfer of the 
 acid to himself without authority and by false pretences, and that 
 mere possession of chattels, with no further indicia of title than a 
 delivery-order, is not sufficient to entitle a hoimfidc pawnee of the 
 person fraudulently obtaining possession from the tnie owner to 
 resist the claim of the latter in an action for a conversion of the 
 property (i). 
 
 Transfers of chattels in. the hands of bailees. — If the owner of a 
 chattel or a negotiable security places it in the hands of A, with 
 directions to hand it over to B for B's use, that does not have the 
 effect of transferring the property to £. The direction remains 
 countermandable by the remitter until it is executed either by 
 the actual delivery of the chattel or money to the remittee, or by 
 some binding engagement entered into between the agent and 
 the remittee, which gives the latter a .right of action against the 
 former (f). "The transaction amounts to no more than a man- 
 date from a principal to his agent, which can give no right or 
 interest to a third person in the subject of the mandate. It may 
 
 (p) White V. harden, 10 C. B. 927. (i) Kingiford t. Merry, 1 H. & N. 503. 
 
 Sheppard v. Shoolbred, Car. & M. 6S. (j) Brmd v. Batnpshire, 1 M. & W. 
 
 (A) Higgcms t. Burton, 26 Law J., 3?3. WiHiams Vi Everett, 14 East, 596. 
 Exch. 343. 
 
342 : CONVERSION or chattels. [chap. vn. 
 
 be revoked at any time before it is executed, or at' least before any 
 engagement, is entered into with a third person to execute it for his 
 benefit. And it will be revoked by any disposition of -the property 
 inconsistent with the execution of it " {Ic). But as soon as the 
 person holding the chattel enters into a binding engagement with 
 the third person to hold it for him, he cannot afterwards contest 
 the title of the latter (l). If the defendant has led the plaintiff to 
 believe that he would act as a warehouseman or bailee of the goods 
 for the plaintiff, and aiter that parts with them to another, he will 
 be, guilty of a conversion (m). 
 
 Title ly delivery-order. — The mere possession of a dock-warraut/ 
 delivery-orderj or warehouse-keeper's . or wharfinger's receipt for 
 goods, or any other documentary evidence of title to chattels, is no 
 stronger evidence of title and ownership than the actual possession; 
 of the goods themselves. And if by means of a delivery-order/ 
 fraudulently obtained, and presented to a warehouse-keeper, mer- ■ 
 chandise has been transferred in the warehouse-keeper's books of 
 transfer, into the name of the wrong-doer, the latter cannot thereby 
 convey a valid title by sale or by pledge {n). But this is otherwise 
 in the case of a negotiable instrument, such as a bill of lading for 
 delivery of certain goods to order or assigns, and therefore a person, 
 who has obtained such a biU by fraud, can confer a valid title to 
 the goods on a third person to whom he has indorsed the bill of 
 lading for value and who has no notice of the fratid (o). As between 
 several innocent indorsees of the same bill of lading, however, 
 (where the bill of lading has been drawn in triplicate, and two of 
 them have been indorsed to one person and the remaining one to 
 another), the title of the first indorsee in point of time will pre- 
 vail (p). 
 
 Title ly pM'cliase from the sheriff. — The ordinary com'se in cases 
 of seizm'e of' goods by a sheriff under afi.fa., is for the sheriff to 
 sell by auction or by bill of sale ; but the law does not require the 
 sale to be made in any particular manner. If the sheriff has the 
 goods valued, and then delivers them by way of sale to the execu- 
 tion creditor for the amount of the valuation, this is a good sale of' 
 the property to him {g). In ordinary cases of sales by sheriffs 
 there is no implied warranty of title on the part of the sheriff to 
 
 (i) Scott V. PorcJier, 3 Mer. 663. Angh'EgypMan Namgation Co.>, L. E., S 
 
 (0 /Stomw-d V. Dunlin, 2 Campb. ZiA. C. P. 190. Rodger v. Convpimrd'Escompte 
 
 (m) Hcuwkes v. Sunn, 1 Or. & J. 527. de Pwris, L. R., 2 P. C. C. 393 ; 38 L. J., ■ 
 
 (n) Soyson T. Coles, 6 M. & S. 14. P. C. 30. 
 
 Kingsford t. Merry, 1 H. & N. 503. (p) Meyerstein v. Barher, L. B., 1 C. P. 
 
 GocUs v. Sose, 25 Lair J., C. P. 61. Addi- 38 ; 2 Ibid. 661 ; i Engl. & Ir. App. 817. 
 
 Bon on Contractfl, ch. 6, 6th ed. See Addison on Contract!!, 6th ed., p. 814. 
 
 (o) Pease t. Gloahec, L. K., 1 P. C, 0. Shepherd v. Harrison, t. E., 4 Q. B. 196 j 
 
 219. See "The Aj^gentina," L. E., 1 /iici. 493 ; 5 Engl. & Ir. App. 116. 
 
 Adm. & Eccl. 870 i Coventry v. Gldd- '(}) J/eraamam v. .Bowie*-, 11 Exch. 760. 
 
 itone, L. E., 4 Eq. Ca. 498. DracackLst ' 
 
SECT. 2.] tURCaASE FllOM SHERlI'F— BILLS, NOTES, ETC. 343 
 
 the property lie sells (r). In an interpleader siiit between a 
 claimant under a bill of sale from tbe sheriff and an execution 
 creditor, proof of the biU of sale, with some evidence of a previous 
 seizure of the chattels by the sheriff, is sufficient primA facie 
 evidence of the title of the claimant (s). 
 
 Title to mis, noteSj and cheques. — Bank-notes are treated as money 
 or cash in the. ordinary course of business by the .common consent 
 of mankind. If, therefore, a man finds a bank-note, and pays it 
 away londfide in the ordinary course of business, the owner has no 
 remedy for the recovery of the lost property ; but if he demands 
 the note whilst it still remains in the hands of the finder, the latter 
 vidU, as we have seen, be responsible for the non-delivery of it {t). 
 In the case of the loss of a bill, note, or cheque, by theft or 
 accident, if the instrument be assignable by mere delivery, the 
 thief or finder may confer a title by transferring it to a person who 
 takes it ionA ^fide, and who -gives value for it without notice 
 of any infirmity of title at the time he receives it. But if the 
 instrument is assignable only by indorsement, neither the thief nor 
 the finder can make a valid indorsement (u). And whenever a 
 person discounts, or receives into his possession by way of deposit, 
 a bill, or note, or negotiable security, knowing that the person from 
 whom he receives it is not the owner of it, he cannot lawfully 
 detain it from the true owner (x). 
 
 When a bill, note, or cheque has been proved to have been 
 stolen or lost, or to have been obtained by fraud, this affords a pre- 
 sumption that the thief or the finder, or the fraudulent possessor, of 
 the security would dispose of it, and would place it in the hands of 
 another person to sue upon it ; and such proof on the part of the 
 defendant casts upon the plaintiff the burthen of showing that he 
 gave value for the note (y). Negligence on the part of a person 
 taking a negotiable security, and giving Value for it, does not fix him 
 with the defective title of the person passing it to him {ante, p. 329). 
 If, therefore, a cheque payable to bearer is lost, and is tendered a 
 few days after the loss to a shopkeeper in payment of goods 
 purchased, and the shopkeeper takes it without any inquiry, and 
 without any laiowledge of the name or address of the person 
 tendering the cheque, he wiU, nevertheless, be entitled to recover 
 the amount- from the maker, unless the latter can prove that the 
 shopkeeper knew that the cheque was a lost clieque at the time he 
 took it (2), ' 
 
 (r) Morhy v. Attenhorough, ante, p. J., C. P. 169. Bayley on Bills,, 6th ed,, 
 
 339. p. 138. As to cheques payable to order, 
 
 {«) Eomidge v. Goober, ^TLm J., Bxoh. see 16 & 17 Vict. c. 59, s, 19. 
 
 314. (k) Lomll T. Ma/rtim, 4 Taunt. 799. 
 
 (t) MiUer v. Bace, Grant v. Vaugham, BwrjiY. Morris, 2 Cr. & M. 579. 
 
 onte, p. 328. {y) Baiky Y.BidmU, ante, t^. 329, 
 
 (u) Johnson T. Wtndle, 3 Sc. 608 ; 3 B. (z) Ld. Kenyon, Laiwson v. Weston, 4 
 
 K. 0. 225. Whistler v. Forster, 32 Law Esp. 57. Saphad v. Bank of JEngkmd^ 
 
344 CONVERSION OF CHATTELS. [CHAP. VII. 
 
 Title to the jproperty of hankrwpts. — ^By the 32 & 33 Vict, 
 c. 71 (a), all the "property" of a person who has been adjudged 
 bankrupt, except property held by him in trust, his tools, wearing 
 apparel, and beddiag, to the value of 20?., vests, until the appoint- 
 ment of a trustee (6), in the registrar of the' court, and on such 
 appointment passes to and vests in the trustee (ss. 15, 17, and 
 83) (c) ; and where any conveyance or assignment of projierty is 
 required to be registered, the certificate of the appointment of the 
 trustee may be registered instead (s. 83). The term property 
 includes money, goods, things in action {d), land (e), and every de- 
 scription of property whether real (e) or personal ; also obligations, 
 easements, and every description of estate, interest, or profit, present 
 or future, vested or contingent, arising out of or incident to property 
 as above defined (s. 4). These words would include an -option to 
 take a lease (/) ; but not, it seems, the chance of an appointment 
 under a will {g) ; and the right of nomination to an ecclesiastical 
 benefice is expressly excepted (s. 15). For the purpose of acquir- 
 ing or retaining possession of the property of the bankrupt, the 
 trustee is in the same position in all respects as a receivei- appointed 
 by the Court of Chancery (s. 20). In the case of stocks, shares, or 
 other property transferable in the books of any company, the right 
 to transfer such property may be exercised by the trustee in bank- 
 ruptcy to the same extent as the bankrupt himself might have 
 exercised it (s. 22). 
 
 Leaseholds — Onerous property. — Under the acts previous to the 
 Act of 1869, it was held that the general assignment of a bankrupt's 
 property did not vest leaseholds in the assignee until acceptance (h) ; 
 although at common law such would be the effect of an assignment 
 (6.g. for the benefit of creditors), under which the assignee had 
 acted, and he would, therefore,, be liable under such a deed for the 
 rent (i) ; but by the 32 & 33 Vict. c. 71, s. 23, it is now provided, 
 that when the property of a bankrupt, acquired by the trustee in 
 bankruptcy, consists of land of any tenure burdened with onerous 
 covenants, of unraarketable shares, of unprofitable contracts, or 
 
 17 0. B. 161. "The cases of Gill v. (c) Nov would it be divested by sua. 
 
 Oubitt, 3 B. & C. 566, and Down v. ffal- order to stay proceedings under s. 80, see 
 
 limy, 4 B. & C. 330, whioh were considered Macdonald t. Thompson, L. K., 4 C. P. 
 
 to hare gone far to overrule the case of 747, decided under the llOth section of 
 
 Lamion v. Weston, are no longer law; and 24 & 25 Viet. c. 134, now repealed. 
 
 the opinion of Ld. Kenyon is set up {d) See s. 22. 
 
 and supported by all the lawyers." Ld. (e) As to copyhold property, see s. 22. 
 
 Brougham, in Bomh of Bengal v. Madeod, As to estates in tail, see s. 25. 
 
 7 Moore, P. C. C. 35 ; Bank of Bengal v. ' (/) See BiuMand v. PamUm, L. K., 1 
 
 Pagan, ib. 72. Willes, J., 17 0. B. 175. Eq. Ca. 477; 2 Ch. App. 67. And see s. 15, 
 
 Watson V. Russell, 3'B. & 9. 38. as to powers exerciseable by bankrupt. 
 
 (o) Amended as to absconding debtors (g) He Vizm-d, L, R, 1 Eq. Ca. 667. 
 
 by 33 & 34 Vict. c. 76. AU the princi- (A) Copeland v. Stephens, 1 B. & Aid. 
 
 pal statutes on the subject of bankruptcy 593. 
 
 aire repealed by the 32 & 33 Vict. c. 83. (i) White v. Hunt, L, E., 6 Eich. 32i 
 
 (6) Or trustees, sec s. 83. 
 
SECT. 2.] TITLE TO PROPERTY OF BANKRUPTS. 345 
 
 other property unsaleable, or not readily saleable by reason of its 
 binding the possessor to the performance of some onerous act, or to 
 the payment of money, the trustee may disclaim s\ich property (k), 
 although he may have taken possession of it or endeavoured to sell 
 it, and upon such disclaimer the lease shall be deemed to have been 
 surrendered, the contract determined, or the shares forfeited, from 
 the date of the order of adjudication ; or, if real property, it will 
 revert to the person entitled on the determination of the estate of 
 the bankrupt therein. The persons interested in such property in 
 reversion or remainder, however, are entitled to call upon the trustee 
 to disclaim withjn a certain time, and he will not be entitled to 
 disclaim afterwards (s. 24). 
 
 Contracts or dealings with the bankrupt without notice.^The title 
 of the trustee to the property of the bankrupt has relation back to 
 the act of bankruptcy, so that the property ceases to be his, and 
 becomes the property of his trustee from the time of the commission 
 of the act of bankruptcy (ss. 11 & 15) Q). But the harsh effect of 
 this doctrine is modified by ss. 94 & 95 (m), which enact, that all 
 conveyances, transfers, delivery of goods, contracts, or dealings, by, 
 with, or to, any bankrupt, made in good faith and for valuable con- 
 sideration, before the date of the order of adjudication, shall not be 
 deemed invalid, provided the person so dealing with the bankrupt 
 had not at the time thereof notice of any act of bankruptcy com- 
 mitted by the bankrupt and available against him for adjudication. 
 As against persons, therefore, having notice of the act of bank- 
 ruptcy and not being, consequently, within the protection of this 
 clause, the title of the trustee will have relation back to the.time of 
 the act of baiikruptcy {n), unless, perhaps, the adjudication of bank- 
 ruptcy is the act of the court, under s; 125, in consequence of a 
 liquidation by arrangement having become impracticable, and with- 
 out any creditor's petition having been presented, and possibly in 
 cases where the creditor's petition is founded on the debtor's own 
 declaration, duly filed, admitting his inability to pay his debts (o). 
 Where a guarantee society, in pursuance of an agreement between 
 them and the bankrupt, entered into his house and seized his goods, 
 without any knowledge of his having committed an act of bank- 
 
 (h) See Ex' parte Lpivi Goal amd Iron L. E., 11 Eq. Ca. 204; M parte Sheriff of 
 
 Co., L. K., 7 Oh. App. 28 ; Ee Wilson, L. Middlesex, L. E;, 12 Bq. Ca. 207. 
 
 K.j 13 Bq. Ca. 186. ■ ("J) These are substantially a re-enact- 
 
 (?) The title of a trustee under a liqui- ment of s. 133 of 12 & 13 Vict. c. 106. 
 
 dation by arrangement (see s. 125) relates (n) See Fawcett v. Feame, 6 Q. B. 28; 
 
 back in a similar manner ; Ex parte Eidey v. Inglis, L. E., 3 Exch. 247 ; 37 
 
 Buignan, L. E. 11 Eq. Ca. 604 ; 6 Ch. Law J., Exch. 145. 
 
 App. 605. ' (") Sect. 6. And see Stevenson v. 
 
 As to the distinction between a liqui- Nevmham, 13 C. B. 801. Monk v. Sha/rp, 
 
 dation by arrangement, and a composi- 2 H. & N. 548 ; 27 L. J., Exch. 29i But 
 
 tion deed under s. 126, see Ex parte see Jones v. Sarher, L. E., 6 Q; B. 80 ; 
 
 Birmingham Gas Light and Cohe Co., Exparte Duignan,'L.'R.,6Ch.ATpTp, 605. 
 
346 CONVEKSION OF CHATTELS. [CHAP. VII. 
 
 ruptcy, it was held" that this was a "transaction" protected by the. 
 133rd section of the repealed Act (12 & 13 Vict. c. 106), and that 
 the assignees could not maintain an action against the guarantee 
 company for the entry and seizure (p). 
 
 Title to chattels purchased /rem a hanh'upt after an act of hanh- 
 ruptcy. — If a man buys goods of a bankrupt, and pays over the 
 price to the latter with knowledge of the act, of bankruptcy, he will 
 have no title to the goods as against the trustee; but if he had no 
 notice of the act of bankruptcy at the time he paid the money, the 
 transaction will be protected by the above sections. A trustee in 
 bankruptcy does not, by sending in. a bill of parcels or invoice of 
 goods purchased, necessarily ratify a dealing between the bankrupt 
 and a third person as a sale. It may amount only to a qualified offer 
 on their part to adopt the transaction as a sale, provided the defendant 
 will pay for the goods, so as to leave it open to them to maintain 
 an action for the conversion of the property if the defendant will 
 not pay the money demanded {g). But if the trustee unreservedly 
 adopts the transaction as a valid contract of sale, he cannot after- 
 wards treat a refusal to re-deliver the goods as a conversion (r). 
 
 Transfer of property hy hanhrupts constituting an act ofbankruptcy 
 — Fraudoilent 'prefermce (s). — -If there be a voluntary conveyance 
 of property by a man who is indebted at the time, which convey- 
 ance would have the effect of delaying or defeating the payment 
 of creditors, such conveyance is stamped with the character of 
 fraud {t). Every conveyance for an antecedent debt is a voluntary 
 conveyance, and when it is made to the prejudice of other creditors, 
 it becomes a fraudulent conveyance, and an act of bankruptcy {u), 
 and avoidable by the trustee in bankruptcy {v). Again, if a man 
 hands over property for payment of his creditors, except, under 
 pressure, he makes a voluntary preference, and' that is an act of 
 bankruptcy (sc). And the handing over jproperty, even under 
 pressure, may be an act of bankruptcy, for the 6th section {y) 
 provides, that if an execution for a debt of more than 50^. be 
 levied by seizure and sale of the goods of a trader, he is to be 
 deemed to have committed an act of bankruptcy. But a lond fide 
 transfer of all a person's property to secure a past debt and a 
 
 (p) KreU V. Qreat Central Gas Co., L. 481 ; 5 lUd. 275. 
 
 E., 5 Exoh. 289. The word "ti-ansac (te) J^racs v. ^(w-Jn*. L. K., 6 Q. B. 77 ; 
 
 tion" is. not used in the late act; the Ex pMte<!6h.en, L. E., 7 Ch. App. 20. 
 
 words are "contract or dealing" only. (®) SeSbut v. NevUl, L. B., 6 C. P. 
 
 As to the BufiBciency of a seizure in such 478. 
 
 a ease, see Srevrm ■V. Sliort, post, ^. 350. (ic) Zaeon t. Liffen, 8i LaW J., Ch. 
 
 (2) V(Upy T. Smiders, 6 C, B. 893 5 17 315. Addison on Contracts, 6th ed., 
 
 Law J., C. P. 249. p. 156. Bills v. SmitJi, 34 L. J., Q. B. 
 
 ()■) Eckoavds V. Hooper, 11 M. & W. 68. 
 
 363. (y) Which is a re-enactment of the 24 
 
 (a) See 33 & 34 Vict. c. 76. , & 26 Vict. c. 134, s. 78. See Woodhousi 
 
 (t) Tomgr. Fletcher, Siha.vrJ.j'Exck, v, Murray, Li E., 2 Q. B. 634; 4 Jbidi 
 
 154,. Ma/rke V. PeMmm, 11.11., i Q.'B. 27,. 
 
SECT. 2.] ACTS 01? BANKRUPTCY— PEAUDULENT PEEPEEENCE.- 347 
 
 future advance is not an act of bankruptcy (z), although the 
 advance is for the purpose pi satisfying an existing debt (a), and 
 there be power to seize all after-acquired property (b), N"or is a 
 bond fide transfer of all the trader's property, under pressure, unless 
 a fraudulent preference, voidable by the trustee, in cases where there 
 is no relation back of his title (c). An assignment by a debtor of 
 his property to a trustee for the benefit of his creditors, is aii act 
 of bankruptcy (d). And so is the filing of a petition for liquidation 
 by arrangement under s. 125 (e). 
 
 The 6th section of the Act enacts that any fraudulent con- 
 veyance, gift, delivery, or transfer (i.e., a conveyance or transfer 
 fraudulent in fact, e.g., without consideration), by a debtor of his 
 property or any part thereof, shall be an act of bankruptcy ; and 
 the 92rjd section enacts that every conveyance or transfer of 
 property or charge thereon, &c., except to a purchaser, payee, or 
 incumbrancer in good faith and for valuable consideration (/), 
 made by any person unable to pay his debts as they become due 
 from his own money, in favour of any creditor or in trust for 
 him, with a view of giving such a creditor a preference over the 
 other creditors, shall be deemed fraudulent and void as against the 
 trustee in bankruptcy, if the person making sirch conveyance, 
 transfer, &c., become bankrupt within three months afterwards. 
 It has been held, however, that this section has not altered the law 
 with respect to fraudulent preferences, and that it is still necessary, 
 in order to constitute a fraudulent preference, that the conveyance 
 or transfer be made voluntarily and in contemplation of bank- 
 ruptcy, and that, if made upon pressm^e, the intention of the 
 bankrupt to prefer one creditor to another is not material (g) ; and 
 further, that if the payment be made without any view of pre- 
 ferring one creditor to another, it is not a fraudulent preference, 
 although made without pressure by a person unable to pay his 
 debts as they became due (h). 
 
 Eoaecutions levied on the property of hcmkriipts.^-The 6th section 
 of the Act further provides, that any execution, for 501. and upwards^ 
 levied by seizure and sale on the property of a trader, shall be 
 an act of bankruptcy; and the 87th section provides that the 
 sheriff or bailiff of the County Court shall in such cases retain the 
 
 (2) Allen V. Bonnett, L. B., 5 Ch. App. km, L, K., 3 C.'P. 167. Ex parte Squire, 
 
 677. See He Golenwre, L. E., 1 Ch. App. L, E., 4 Ch. App. 47. 
 128. Ex parte Poxley, L. K., 3 Ch. App. (e) Ex parte Duignan, L. E., 11 Eq. Ca. 
 
 515. 604 ; 6 Ch. App. 605. 
 
 (a) Lomax v. Buxton, L. B., 6 C. P. if) En pwrte BlcuMwrn^ L. E.. 12 Eq. 
 
 lot.-.' i . ■ Ca.358. . , , , 
 
 (i) HuUon V. Oruttwdl, 1 E. & B. 15. . -(g) Ex parte Graven, L. E., 10 EqijCai 
 
 {c} Jones r. Harler, L. E., 6 Q. B. -648 ; L. E., 6 Ch. App. 70. ' 
 77. (ft) Ex pwie BoUam, Li E., 7 Ch. App. 
 
 (cJ)Sect. 6. AaA see Pontfonl v.Wal- 24. . . 
 
348 CONVERSION OF CHATTELS. icHAP. VII. 
 
 proceeds of the sale in their hands for a period of fourteen days, 
 in trust to pay them over to the trustee in bankruptcy, if a petition 
 for adjudication or liquidation by arrangement (i) be presented 
 ■within that time ; but if no petition be presented, then to the 
 execution creditor. Subject, however, to the above provisions, any 
 execution against the bankrupt's land or goods, executed in good 
 faith, by seizure in case of land, and by seizure and sale in case of 
 goods, before the adjudication, and without notice of any previous 
 act of bankruptcy, is valid (s. 94). 
 
 Where an execution has been levied, but between the time of 
 the seizure and sale a trustee in bd,nkruptcy or in liquidation has 
 been appointed, the title of the latter will prevail by relation over 
 that of the execution creditor, if the act of bankruptcy preceded 
 the seizure, althoiigh the sale has been delayed by an injunction, 
 under s. 13 (A;) ; a fortiori, therefore, if the seizure has been com- 
 pleted by sale, it will not be defeated by notice of an act of 
 bankruptcy committed subsequently to the seizure (l). If the 
 creditors of the debtor prefer to accept a composition under s. 126, 
 the execution creditor will be entitled to the proceeds of the 
 execution (m). 
 
 The notice, which the execution creditor must have, must be of 
 an act of bankruptcy committed previoils to the seizure (n), and it 
 must convey spedific information as to the acts constituting the act 
 of bankruptcy. A notice, stating circumstances which may or may 
 not amount to an act of bankruptcy, is insufficient (o). 
 
 Title of trustee in bankruptcy to property settled or transferred 
 hy banhrupt. — By s. 91 of the Act (p), it is further provided that 
 any settlement, conveyance, or transfer of property, made by a , 
 trader, shall be void against the trustee, if the settlor becomes 
 bankrupt within two years from the date of the settlement or 
 transfer, and shall also be void if the settlor becomes bankrupt 
 within ten years, unless at the date of the settlement the settlor 
 was able to pay all his debts without the aid of the property 
 comprised in it. But this section does not apply to settlements or 
 transfers made before and in consideration of marriage, nor to a 
 purchaser or incumbrancer in good faith and for valuable conside- 
 ration, nor to settlements, &c., made on the settlor's wife or children, 
 of property which has accrued to him in right of his wife after 
 
 (i) Ex pa/rte Key, L. E., 10 Eq. Ca. (m) ExpaHe Sheriff of Middksex,'L.Ii., 
 
 432. 12 Eq. Ca. 207. 
 
 (h) & parte Veness, L. E., 10 Eq. Ca. (n) Ex parte Todhunter, L. E., 10 Eq. 
 
 419. Slattr v. Finder, L. E., 6 ESch. Ca; 425. 
 
 228. Ex parte Duigrum, L. E., 11 Eq. (o) Evans v. ffalkm, L. E., 6 Q. Bi 
 
 Ca. 604 ; • 6 Ch. App. 606; & parte 713v 
 
 Rocke, h. E., 6 Ch. App., 795. (p) This section is in substitution of 
 
 (t) Ea parte TddhunUr, U E,, 10 Eq. s. 126 of 12 & 13 Vict. o. 106i 
 Ca. 425. 
 
SECT. 2.] REPUTED OWNERSHIP BY' BANKRUPTS. 349 
 
 marriage. Any covenant or contract made by a trader in con- 
 sideration of marriage for the future settlement of property in 
 which he had not at the time of the marriage any interest vested 
 or contingent, is also void against the trustee, if the property has 
 not been transferred, or money, &c., paid before the bankruptcy ; 
 but this does not apply to property to which the bankrupt becomes 
 entitled in right of his wife. 
 
 Title to chattels of which a bankrupt was reputed owner at the 
 time pf his bankruptcy . — By s. 15 of the Act (q) it is further 
 enacted, that the property of the bankrupt, divisible amongst his 
 creditors, shall, comprise aU goods and chattels being at the 
 commencement of the bankruptcy in the possession, order, or 
 disposition of the bankrupt, with the consent and permission of 
 the true owner, of which goods and chattels the bankrupt is 
 reputed owner, or of which he has taken upon himself the sale, or 
 disposition as owner (r) ; but no chose in action, other than debts 
 due to the bankrupt iu his trade or business, are to be deelned 
 goods and chattels within the section. This section probably 
 extends to chattels which were in the order and disposition of the 
 bankrupt at the time of his committing any act of bankruptcy 
 capable of supporting the adjudication, though such act be prior to 
 the act on which the adjudication is founded (s). But it would 
 not, semble, oust the jurisdiction of the courts of common law or 
 Chancery to decide what goods were in the reputed ownership of 
 the bankrupt or not (t) . 
 
 Recovery of possession of the goods by the true owner before notice 
 of the act of bankruptcy. — If, before the adjudication and without 
 notice of an act of bankruptcy, the true owner has actually taken 
 the goods out of the possession, order, and disposition of the 
 bankrupt, his title will prevail over that of the trustee (u). If, 
 before the adjudication, and after the act of bankruptcy, the owner 
 has, bond fide and without notice of the act of bankruptcy, done 
 anything which before an act of bankruptcy would have been 
 sufficient to determine his permission and consent to the goods 
 remaining in the possession, order, and disposition of the bankrupt, 
 so that a subsequent act of bankruptcy would not have subjected 
 the goods to be dealt with under the clause respecting reputed 
 :ownership, his title will prevail, although he had not, before notice, 
 succeeded in obtaining the actual possession of the goods. If, 
 before the date of the adjudication, and before , notice of an act 
 of bankruptcy, he has bond fide demanded the goods, and, com- 
 
 (a) Which is substantially a re-enact- J. 222. 
 
 ment of 12 & 13 Vict. c. 106, s. 125. («) See Mather v. lay, 2 J. & H. 374. 
 
 M See Hornsby t. MiUer, 28 L. J., Ch-aham v. Purler, 14 0. B. 157; 23 Law 
 
 Q B 99. J., C.P.IO. 
 
 \s) See "Stansfidd v. OuUtt, 2 De G. & («) Oraham v. Furler, 14 C. B. 134. 
 
350 CONVEliSION OF CHATTELS, [CHAP. VH. 
 
 municating with the bankrupt, has done that which shows that 
 the goods did no longer, with his consent and permission, remain 
 in the possession, order, and disposition of the bankrupt, his title 
 will not be defeated by a prior secret act of bankruptcy. But a 
 mere intention to demand the goods, and to get possession of them, 
 is not a " dealing '' within the meaning of the statute (x). And if 
 his consent has not been withdrawn, and it appears that, at the 
 time he got back his goods, lie was cognizant of an act of bankruptcy 
 having been committed by the bankrupt, the title of the trustee 
 win prevail, and will relate back to the period of the commission of 
 such act of bankruptcy (y). 
 
 Wliat things are comprehe7ided under the words "goods and 
 chattels." — These words extend ojily to chattels personal, and do not 
 embrace chattels real, leases, or interests in land, or fixtures and 
 things attached to the freehold ; and choses in action, other than 
 trade debts, are expressly excepted by the section {z). The object 
 of the legislature was to prevent, traders; from gaining a delusive 
 credit by a false appearance of substance, which may be caused by 
 the possession of personal qhattels, as the possession and ownership 
 generally go together ; which is not the case with regard to land 
 and fixtures annexed to the realty {a). But moveable machinery 
 in buildings, all kinds of personal property in possession, shares in 
 newspapers (J), and in public companies whose shares are made 
 personal estate (c), stock in the public funds, patents for inventions, 
 and all personal property assignable by deed . at common law, 
 would come within the section. 
 
 Wliat possession is within the statute. — The possession of the 
 goods and chattels by the banlcrupt must be a possession as reputed 
 owner, with the consent of the real owner. A mere temporary 
 custody, or the mere possession without reputation of ownership (d), 
 or the possession with reputation of ownership, but against the will 
 or without the knowledge of the true owner, will not vest the 
 property in the trustee (e). " There has been no case, or ever will 
 be, wherein a court of law or equity will do so severe a thing as to 
 subject the property of one man to the debts of another without 
 
 (x) Srewm v. Short, 5 Ell. & Bl. 237. exprnie, i ib. 143. Coombs v. Beavmant, 
 
 Yoimg T. ffope, 2 Exch. 109. Panente 5 B. & Ad. 73. Hubbard v. Bagsliaw, 4 
 
 V. PenneU, 2 Mood. & Eob. 578. , Sim. 338. Boyddl v. M'Mieliad, 1 C. M. 
 
 {y) Famcett t. Pmrne, 6 Q. B. 28. & K, 177. 
 
 Hesldp V. Baker, 8 Exoh. 423 ; 20 Law J., (6) See Longman v. Trip-p, 2 B. & P. N. 
 
 Exch. 350. E. 67. 
 
 (z) This was otherwise under the former (c) Ex parte Union Bank of Mancliester, 
 
 statutes ; see Homblower v. Proud, 2 B. & L. E., 12 Eq. Ca. 364. 
 
 Aid. 327. As to trade debts, see Coohe (d) Trismall t. Lovegrove, 6 L. T. 11., 
 
 V. Hemming, L. E. 3 C. P. 334. Leslie t. N. S. 329 ; 10 W. E. '627. 
 
 6^/tn'e, 1 B. N. C. 697. (e) Richardson, ex iMrte, Buck, 488. 
 
 (a) Horn y. Baker, 9 East. 215. Bav- ^lAngham, t. Biggs, 1 B. & P. 88. Oliver 
 
 clay, ex pa/rte, 25 Law J., Bankr. 4. v. Bartlett, 1 B. & B. 273. 
 Lloyd, ex pairte, 3 D. & C. 787. Wilson, 
 
SECT. 2.] KEPUTED OWNEESHIP BY BANKUUPTS. 351 
 
 proof of the consent of the real owner to leave them in the power 
 of the bankrupt (possession only not being sufUcient), or a Idches 
 in letting them remain there so as to get him a false credit " (/). 
 Therefore the property of infants in the hands of traders, who deal 
 with it as the reputed owners, would not pass to the trustee for the 
 benefit of creditors, by reason of the incapacity of infants to give 
 their consent and permission within the intent and meaning of the 
 statvite {g). But if the real owner be of full age, and capable of 
 acting for himself, it should be made notorious " to the world in 
 M'hich the banlorupt moves," that the latter holds the property 
 adversely, and without the consent and permission of such owner (li), 
 or the latter should have done all that can reasonably be expected 
 of him to obtain possession of the property prior to the bank- 
 ruptcy (i). If the goods have been placed in the possession of the 
 bankrupt by a person who was himself only the bailee, the consent 
 of the latter to the bankrupt's possession is not the consent of the 
 true owner (/). 
 
 Heputation of munership. — ^Where the bankrupt has once been 
 the actual and visible owner of goods and chattels, and has made 
 over all his right and interest in them to a third person, either 
 absolutely or by way of mortgage, and remains in possession of the 
 things so transferred, the continuance of possession, if not a badge 
 of fraud, raises an irresistible presumption of the continuance of 
 ownership (k) ; so that if the goods are not taken out of the 
 possession of the mortgagor before the mortgagee had notice of an 
 act of banlcruptcy (Z), they would pass to the trustee. This is the 
 ease where a trader mortgages his furniture, goods and chattels, 
 and stock-in-trade, and the mortgaged property is let to him by 
 the mortgagee to be used for hire, or is allowed to remain in his 
 hands notwithstanding the mortgage, and continues in his possession 
 at the time of the adjudication (m) ; where the tenant of a mill 
 gives his landlord by deed a lien upon the fixtures and machinery 
 of the miU {n) ; where the goods and chattels of a trader are taken 
 in execution by a creditor, and the latter receives an assignment of 
 them from the sheriff, and allows the goods to remain in the trader's 
 dwelling-house, and to be used by him for hire, down to the time 
 
 (/) Lii. Hardwicke, West v. Shvp, 1 (h) Castle, ex parte, 3 M. D. & De 6. 
 
 Ves. sen. 243. Parke, B., jBdcher v. 124. 
 
 Bellamy, 17 Law J., Exct 222 ; 2 Exch. (I) Young t. Hope, 2 Exch. 105. 
 
 3]| Q_ , ■ (m) Byall T. Bowles, 1 Ves. sen. 360. 
 
 in) Ld Eldon, Viner v. CadeU, 3 Bsp. Kvrhley v. Hodgson, 1 B. & C. 598. 
 
 89; Freshney t. Carrick, 1 H. & N. • 661. 
 
 \h'\ Best, J., in Ex pmrteEnderhy, 2 B. Mamis, In re,. 10 Ir. Ch. K. 100. Spach- 
 
 &, C 398. ™«'* ■<^- MWer, 12 C. B., N. S. 659; 31 
 
 (i) Smith V. Topping, 5 B, & Ad. 674. Law J., 0. P. 309. 
 
 ()') Fraser v Swansea N'avigation, &e., (n) Skuttletoortli v. Ilernaman, 1 De G. 
 
 lAd.&E. 354. &J.322.^ 
 
352 CONVERSION OF CHATTELS. [CHAP. VII. 
 
 of the adjudication (o) ; where a person, wlio is forbidden to trade 
 in his own name, ships, and warehouses, and deals with goods in 
 the name of the banlcrupt, the latter not being a commission agent 
 for sale, and the course of dealing not being according to the 
 oMinary usage of trade {p) ; where a shareholder in a joint-stock 
 company, or a railway* company, deposits the certificates of the 
 shares with the creditor as a security for the repayment of money 
 advanced, undertaking to execute a transfer of the shares when 
 called upon, and the shares continue standing in his name in the 
 books of the company, notwithstanding the assignment or deposit of 
 the certificates, and no notice of the assignment has been given to 
 the company {q}. But if the company does not permit transfers to 
 be made by shareholders without the production of the certificates 
 of the proprietorship of the shares, and these certificates are not in 
 the possession or under the control of the bankrupt, there wiU 
 be no reputation of ownership, from the circumstance of the 
 shares continuing to stand in his name (r). And if the change of 
 ownership has been made notorious to "the world in which the 
 bankrupt moves," the presumption of ownership from the con- 
 tinuance of possession will be rebutted (s). If it is notorious that 
 fxirniture in the possession of a bankrupt never was his property, 
 but was hired by him with the house in which lie resides, there 
 will be no reputation of ownership from his possession of the 
 furniture {f). Nor does the clause apply to the case where a person 
 becomes a dormant or secret partner of a firm in partnership, and 
 permits the partnership stock, furniture, and effects to be in the 
 possession and under the control of the ostensible partners, who 
 become bankrupt, for there must be a real as distinguished from 
 an apparent owner (w). Goods and furniture belonging to a woman 
 who has passed herself off in the world as the wife of a bankrupt 
 have been held to be in his possession, as reputed owner (x). But 
 not goods in the possession of a bankrupt and his wife belonging to 
 
 (o) Lingham v. Biggs, 1 B. & P. 82. notice, see Expwrte Agra Bank, re Wor- 
 
 Bryson v. Wylie, ib. 83, n. (a). Livgard cester, L. R., 3 Ch. App. 555. 
 
 T. Messiter, 1 B. & C. 312. (r) Morris v. Cannam, 31 Law J., Ch. 
 
 . (p) Gordon v. E. J- Co., 7 T. R. 228. 425. Harrison, ex parte, 3 Deac. 196. 
 
 (g) Nutting, ex parte, 2 M. D. & De G. Masterman, 2 Mont. & Ayr. 212. Lamg- 
 
 302. VaUance, ex parte, 2 Deac. 354. mead, 20 Bear. 25. Littledale, 6 De G. 
 
 lam. Can. Co., ex pa/rte, 1 D. & 0. 423. M. & G. 714 ; 24 Law J., Bankr. 9. 
 
 Boulton, ex parte, 20 Beav. 178. Bx Boulton, IDe G. & .1.119. Bichardson, 
 
 parte Union BanJe of Manchester, Ti.'R., ex parte, S De&c. 503. Addison on Con- 
 
 12 Eq. Ca. 354. The same rule has been tracts, 6th ed., 259. 
 
 held to apply, under the repealed statutes, (s) Muller v. Moss, 1 JVE. & S. 335. 
 
 to the deposit by way of mortgage of a (t) Shaw, In re, 8 Law T. E., N". S. 
 
 policy of insurance, where no notice, or 336. 
 
 no sufficient notice, has been given to the QU) Reynolds v. Bowley, L. B., 2 Q. B. 
 
 company. Oreen y. Ingham, Ij.'R., 2 0.7. 41 ; iS. (7. in error, p. 474. 
 
 525. Bdwwrds y. Martin, L. E. 1 Eq. Ca. (a) Mace v. Cammel, Lofft, 782 ; Cowp. 
 
 121. And see Ex parte Caldwell, h. R., 232. 
 
 13 Eq. Ca. 188." As to what is sufficient 
 
SECT. 2.] REPUTED OWNERSHIP BY BANKRX7PTS. 353 
 
 the trustees of his wife's marriage settlement {y) ; nor the goods of 
 the son of a bankrupt, who lives in the same house with the 
 bankrupt, although the goods have been used and dealt with by the 
 latter (z). Where a notorious custom exists in a trade for the buyer 
 of chattels, e.g., live stock, to leave them in the possession of the 
 seller till it is convenient for him to remove them, the presumption 
 of ownership will not arise (a). 
 
 Things sold hy the hankrupt, and left in his possession — Raw 
 materials of manufacture. — If the bankrupt gets his living by buying 
 and selling goods and chattels, and it is a known custom of trade 
 for the vendor to keep possession after a' sale of the things pur- 
 chased, until the purchaser carts them away, or ships them off to 
 their place of destination, possession under such circumstances will 
 not raise a presumption of ownership. Thus it has been held 
 that goods in the possession of a person at the time of his bank- 
 ruptcy subject to a bill of sale, which entitles him to possession 
 until the debt is demanded, and default made in payment, are not 
 in his order and disposition (&). Also if, after the sale, the bankrupt 
 removes the articles away from the rest of his stock-in-trade, and 
 puts them away in his cellars, warehouses, or into some private place 
 of deposit, and there sets them apart for the purchaser, and enters 
 the sale in his books, they are no longer, after such appropriation has 
 been made, in the possession, order, or disposition of the bankrupt 
 within the meaning of the statute, " for they are not then in the 
 possession of the bankruj)t under such circumstances as to deceive 
 the creditors by the appearance of their forming part of that stock 
 to which they might give credit " (c) ; but if the things are left upon 
 the bankrupt's premises undistinguishable from his stock-in-trade, 
 in order that they may be re-sold for the benefit of the buyer, they 
 will be in the possession of the bankrupt as reputed owner, unless it 
 be shown that the latter -acts as a commission agent for the sale 
 of "-oods, or it is a custom of tra4e for property to remain on the 
 premises of the trader to be resold (d). " It is the usage," observes 
 Parke, B., " of clock-makers to have clocks of other persons in their 
 shops, both for repair and for sale, and a man has no right to infer, 
 from finding a clock there, that it is the property of the clock- 
 maker, No inference ought to be drawn either that it is or is not 
 his, and, it being uncertain, there is no reputed ownership " (e). 
 
 If a ship-builder or manufacturer of steam-engines and machinery 
 
 (y) Simmons v. EdMards, 16 M. & W. Uxei, Ashton v. Blwikahaw, L, K., 9 Eq. 
 
 838. See AshUm v. BlackshoM, L. B.., 9 Ca. 510. .,„,„, 
 
 Ea Ca 510 (") J^arrable, Ex parte, 1 61, & Jqm. 
 
 (z) Davis' y. Living, 1 Holt, 275. 402. Dover, 2 M. D. & De G. 259. 
 
 (a) PriesOen v. Plait, L. B., 2 Exoh, 101, (rf) ThacUhwmte v. Coch, 3 Taunt. 487. 
 
 See 'oOBt V 356 "^^"^ '^- ■S'»'"*«2'. 1 -A-d. k E. 920, 
 
 il)Ex parte ffoman, L. E., 12 Eq, Ca. (e) Hamiltmj. Bell, 10 Exoh, m ; 24 
 
 598. Sem, if the till of sale b« not i^egis. Uy J., Exeli, 49, 
 
 A h 
 
354 CONVEESION OF CHAO^TELS. [CHAP. VII. 
 
 contracts for the building and sale of a specific vessel, or steam- 
 engine, or mass of machinery, to be paid for by instalments as the 
 work proceeds, and several instalments of the purchase-money are 
 paid by the purchaser, so that the right of property in the chattel, 
 so far as it has been completed, vests in ,the purchaser, and the 
 bunder or manufacturer becomes bankrupt, the unfinished chattel 
 in his hands is not in his possession, order, or disposition, as the 
 reputed owner, for it is the known custom of such trades for the 
 manufacturer to be paid from time to time as the work progresses, 
 and it is in general notorious that the builders and manufacturers 
 of such articles are not themselves the owners of them, and the 
 trade could never be carried on if such payments by purchasers 
 were not protected (/). . And with regard to property not capable 
 of manual occupation and delivery, such as a ship building on the 
 stocks, a haystack in a meadow, timber in a timber-yard, or oil, wine, 
 or corn in stores and warehouses, the rule is, that if the bankrupt 
 has sold such property hondfide, and received the purchase-money, 
 and made such a delivery as the subject-matter of the' sale is 
 capable of, and placed the property at the disposal of the purchaser 
 prior to the act of bankruptcy, it is not in the bankrupt's possession, 
 order, or disposition within the statute, and does not pass to the 
 trustee (g), although it has not been removed from the bankrupt's 
 premises, provided it has remained there after the sale no longer 
 than was reasonably necessary to enable the purchaser to fetch it 
 away (/i). But the transfer of the right of property must be 
 complete. If the thing sold is in the hands of a third person, or 
 if it is on board a vessel at sea, the bUl of lading, delivery- order, or 
 whatever documents of title may be necessary to establish the 
 transfer of the ownership, must have been delivered to the pur- 
 chaser prior to the adjudication (*) ; and in the case of transfers 
 and assignments of ships, the provisions of the Eegistry Acts must 
 be complied with, and actual possession taken of the vessel on the 
 first practicable opportunity. 
 
 Goods and chcdtels which have never heen the property of the 
 lankrupt. — Where it is shown that the property in possessjon of 
 the bankrupt at the time of the adjudication never belonged to him 
 at all, and was confided to him only, for a temporary and special 
 purpose, slighter circumstances will rebut a presumption of owner- 
 ship arising from possession than in those cases where the property 
 origiuaUy belonged to him, and has been subsequently sold and 
 
 (/) ClarTee v. Spence, 4 Ad, & E. 448. (A) Pkn v. Mathews, 1 A*- 186. 
 
 Woods •^.Rmsdl, 5 B. & Aid. 942. ~:Hol- Parke, B., Bdcher v. Bellamy, 17 Law J., 
 
 derness v. RamMn, 2 De G. F. & J. 258. Exoh. 222. 
 
 Watts, ExpaHe, 32 Law J., Bankr. 36. '([«) Belcher v. Ccmp^r, 4 M. & Gr. 551. 
 
 (g) M anion t. Moore, 1 T. E.. 71. Lempriire v. Pasley^iT. B,. iS5. 
 Brown v. ffeathcote, 1 Atk. 159. 
 
SECT. 2.] REPUTED OWNEESHIP BY BANKEUPTS. 355 
 
 mortgaged witlioiit any change of possession (ifc). If goods and 
 chattels have been sent pursuant to order, for the inspection and 
 approval of an intended purchaser, and the latter becomes bankrupt 
 with the goods in his hands before any contract of sale has been 
 made, the goods so sent are not in his possession as reputed 
 owner (I). Whenever the possession, taken in connection with the 
 custom and usage of trade, and the surrounding circumstances, " is 
 consistent with the fact of a person being absolute owner, and also 
 of his not being absolute owner, the mere possession ought not to 
 raise an inference in the mind of any cautious person acquainted 
 with the usage, that the person in possession is the owner " (m). 
 Therefore, where there exists a custom which is known, that 
 property standing in the name of a man in the books of a public 
 company may only be his nominally, while the real right to it may 
 be in another person, the reputation of ownership does not attach 
 to the mere nominal possession. This is the case with money 
 in the funds and shares in railway companies standing in the 
 narae of a person as trustee (n). Where it is the known custom 
 and usage at a watering-place for houses to be taken ready fur- 
 nished as well as unfurnished, and for carriages and horses to 
 be let by the job, day, week, or month, the mere possession of fur- 
 niture by the tenant of a house, or of a carriage and horses by an 
 inhabitant, wUl of itself raise no presumption of ownership in the 
 possessor (o). 
 
 Whenever the custom to hire as well as to buy the plant, 
 machinery, and imj)lements used in the trade which the bankrupt 
 carried on, is shown to be so general and notorious in the trade 
 that those who had dealings with the bankrupt, " the world in which 
 he moved, might reasonably be provoked to inquire, before giving 
 the banlirupt credit, whether he was the owner of them or not," 
 there is no presumption of ownership from the possession of them. 
 This is the case in the coal-mining trade, where it is the notorious ■ 
 custom of the owners of collieries to demise, not only the colliery, 
 but also the steam-engines, plant, and machinery necessary to get 
 out the coal ; in the coal-lighterage trade, where it is the custom 
 for the owners of barges and lighters used to discharge coal to let 
 such lighters out to hire, and to suffer the names of the hirers to be 
 painted upon them; also in the brewing trade, where it is the notorious 
 custom of brewers to hire their vats, barrels, coppers, and brewing 
 utensils ; and in the hosiery and lace trade, where it is the notorious 
 custom for stocking-frames and masses of machinery to be let out to 
 
 (jfc) Wiggins, Sx parte, 2.D. & C. 270. 3 B. & C. 376 ; Parke, B., 24 Law J., 
 , (l) Gibson v. Sray, 8 Taunt. 76 ; 1 Bxch. 46. 
 
 Moore, 519. Ashton, In re, 1 Fonb. N. (») WatJcms, Ex parte, 4 D. & C. 87. 
 
 jl 258 StewaH, Ex poA'te, 34 Law J., Ch. 6. 
 
 (m) Abbott, C.J., in Slorer v. Hunter, (o) Burton v. Hughes, 9 Moore, 334. 
 
 A A 2 
 
356 CONVEKSION OF CHATTELS. [CHAP, VII. 
 
 hire to the working hosiers, weavers, and mechanics. But the 
 custom must be shown to be general and notorious in the trade, 
 otherwise the presumption of ownership arising from the possessipn 
 and use of such things will not be rebutted {p). 
 
 Possession hy manufacturers, workmen, and depositaries. — Pos- 
 session by manufacturers and workmen of goods and chattels, and 
 of raw materials furnished to them by their employers to be manu- 
 factured, worked up, or repaired, in the way of their trade, raises 
 no presumption of ownership within the statute. This has been 
 held to be the case with the timber of the carpenter, delivered to 
 him to be converted into waggons ; the cloth of the tailor, sent to 
 him for the purpose of being madp into garments ; the gold of the 
 goldsmith, sent to him to be worked up in the course of his trade ; 
 carriages sent to the coach-maker to be repaired, and machinery 
 and chattels manufactured and made to order, and left on the 
 manufacturer's premises after they have been paid for by the 
 employer or purchaser, that they may be altered or repaired, or in 
 order that the purchaser may send for them and convey them 
 away (g'). } Possession by depositaries in the ordinary course of 
 trade, where it is the custom for persons to let out vaults, storeis, 
 warehouses, and rooms for the purpose of receiving, storing, and 
 taking care of pictures, furniture, or merchandise, for hire and 
 reward, is not a possession by such depositaries as reputed owners 
 of the goods intrusted to them for safe keeping. Goods and chattels 
 held by the bankrupt at the time of his bankruptcy as a security 
 for the repayment of money advanced by him to the owners thereof, 
 are not in the reputed ownership of the bankrupt, but the trustee is 
 entitled to all the rights of the bankrupt over them. Goods deposited 
 in the hands of a bankrupt for a specific purpose, or to be applied in 
 a particular way in the ordinary course of trade, and held by him 
 no longer than is reasonably necessary to carry into effect the trust 
 reposed in him, are not in his reputed ownership ; nor a sum of 
 money in a bag, purse, or box, deposited in the hands of a bailee 
 for a special purpose, and set apart by the latter, and kept distinct 
 from his own monies and effects ; but if the money is taken out of 
 the bag or box and used by the bailee, and mixed with his own 
 monies, it will form part of his general estate, and the amount will 
 be a debt due from him to the bailor, which must be proved under 
 the bankruptcy (r). 
 
 ip) Storer v. Himter, 3 B. & C. 368. {r) Parke v. Miasm, 1 East, 551 
 
 Watson T. FeacMf 1 Sc. 149. Horn v, Thompson v. Giles, 2 B. & C, 431. SadUr 
 
 Saker, 9 East, 239. Hornsby y. Miller, v. Belcher, 2 M. & Bob. 489. ^nck v. 
 
 1 £11. & Bl. 192 ; 28 Law J., Q. B. 99. Walker, 2 W. Bl. 1154. JombaH v 
 
 (?) Collviis V. Forbes, 8 T, B, 823. WooUett, 2 Myl, & Cr. 389. fooke v 
 
 CarrutAcMT.Pai/Be, 2M. &P, 429. £ar^ ffollmgvioHh, & T. B. 227. Taylor- Y 
 
 tram, V, Payne. 3 0. & F. 177. flllkins r, Plumr, g M, & g, §76, 
 Jirnrnheatl, 1 [Jc, ^■, B, 9?1, 
 
SECT. 2;] REPUTED OWNERSHIP BY BANKRUPT FACTORS, ETC. 357 
 
 Possession, sale, and disposition of chattels hy factors and com- 
 mission agents for sale in the ordinary course of their trade and 
 business is not a possession, sale, &c., by them as reputed owners, 
 although they sell their own goods as well as the goods of other 
 persons, and aU are confounded and mixed together, so that it is 
 impossible to tell which goods belong to them and which belong to 
 their customers. Persons selling goods on commission must have 
 the goods of other people in their possession whilst carrying on 
 their calling, and thei^ possession is known not to be necessarily 
 their own possession as owners. If it is the custom of shopkeepers 
 in certain trades to receive the goods of third persons, and expose 
 them for sale in their shops for a certain hire or commission paid 
 by the owners of such goods, the things so received for sale, and 
 the contracts made ooncerning them, are not, in case of their bank- 
 ruptcy, in their possession as reputed owners. Booksellers and 
 publishers, for example, who publish and sell books on commission 
 for the authors and owners thereof, have not the reputed ownership 
 of the books they sell, although the books are mixed with their 
 own books, and are not to be distinguished from their general 
 stock-in-trade (s) ; nor coach-makers, who receive and exhibit in 
 their shops and warehouses coaches for sale {t) ; nor watch and 
 clock-makers, who receive Watches to be repaired and sold for their 
 customers (u). But if it is not the custom for persons carrying on 
 the trade exercised by the bankrupt to sell goods on commission, or 
 if the whole stock-in-trade of a retail dealer is furnished to him by 
 a wholesale house, and he trades therewith apparently on his own 
 account, such stock-in-trade and goods will be in his possession, 
 order, or disposition as reputed owner (x)-. 
 
 The fact of the bankrupt's having been intrusted with the goods 
 as a commission agent for sale, may be proved by oral evidence, 
 although the agreement for the deposit and sale of the goods has 
 been put into writing (jj). If the goods have been sold by the 
 factor, and not paid for at the time of his bankruptcy, the owner 
 or principal should give notice to the purchaser of the position in 
 which he stands, and require the price to be paid to himself ; and 
 if, after such notice has been received, the purchaser pays over the 
 money to the bankrupt factor, or his trustee in bankruptcy, the 
 payment wUl be no answer to an action by the principal for the 
 money. If, after the bankruptcy, the trustee receives the money, 
 it may be recovered from him by the principal (2). If the factor 
 has sold the goods, and received money by way of payment which 
 
 («) WhitfiM T. Brand, 16 M. & W. (a;) Uvesay r. Sood, 2 Campb. 83. 
 
 282. SAdM) V. Hq/niey, 1 Ad. & E. 920. 
 
 («) Carrutltera t. Payne, 2 M. & P. (y) Whitfield v. Brand, supra. 
 
 441. i^} -P""'*'. jE'a; pa/rte, 3 Deao. 169. 
 
 (u) Hamilton r. Bell, 10 Exoli. 545. Murray, Br nwu. Cooke's B. L. 379. 
 
358 CONYEESION OF CHATTELS. [CHAP. VII. 
 
 is ear-marked, and can be identified, or wliicli he has put into a 
 bag, box, or parcel, set apart for his principal or employer, the 
 money thus set apart is not in his possession, order, or disposition 
 as reputed owner; but if it has been mixed with the general 
 monies of the bankrupt, it will form part of the bankrupt's estate, 
 to. be administered by the trustee, and the principal must then 
 come in as a creditor upon the estate for the amount as a debt due 
 to him from the bankrupt at the time of Ms bankruptcy (a). 
 
 Non-consent of the true ovmer. — We have already seen that if 
 the owner has demanded back his goods prior to the act of bank- 
 ruptcy, they are not in the possession of the bankrupt ^ith his 
 consent after the demand has been made. Goods obtained by 
 fraud before the act of bankruptcy, and remaining in the bank- 
 rupt's possession at the time he becomes bankrupt, are not in the 
 possession, order, and disposition of the latter with the consent of 
 the owner. If, therefore, the bankrupt has obtained possession of 
 goods through the medium of a fraudulent and pretended purchase, 
 never intending to pay for them, and then becomes bankrupt, with 
 the goods in his possessio^, they may be reclaimed by the vendor, 
 as there is no true and apparent owner, in such a case, within the 
 meaning of the statute, and no consent and permission by the 
 former, the transaction being a cheat, and fraudulent altogether on 
 the part of the buyer (&). 
 
 Possession hy a hanhnipt cestui gue trust. — Possession by the 
 bankrupt of furniture belonging to the trustees of his wife's ante- 
 nuptial marriage settlement, is not "a possession, by him, with the 
 consent of the true owner, within the meaning of the statute (cj ; 
 nor possession by the bankrupt's wife of cows and stock-in-trade, 
 held by trustees under a hond-fide settlement for her separate use, 
 unless the bankrupt has himself traded with the trust property, 
 and got it into his own hands (d). 
 
 Possession ly lankriupt trustees (e). — It was mentioned, ante,^. 344, 
 that goods and chattels of which the bankrupt is possessed as 
 trustee, dp not pass to the trustee in -bankruptcy as his own goods ; 
 nor is his possession of them a possession with the consent and 
 permission of the true owner within the meaning of the statute. 
 This is the case with respect to possession, by trustees of govern- 
 ment stock and shares in the public fimds, and joint-stock com- 
 panies, &c., whether the trust does or does not appear upon the 
 
 (a) Dumm, Expo/He, 2 Ves. sen. 585 ; (d) Jarmcm v. Woolhton, 3 T. E. 618. 
 
 1 Atk. 232. Scott t. Smtium, Willes, Hasdinton t. CW, ib. 620, n. (a). Mrniin, 
 
 400. Tgoke t. Hollingworth, 5 T. B. 227. Expm-te, 19 Ves. 493. 
 
 Oodfrey t. Furzo, 3 P. Wms. 186. WhiU- (e) See g. 117 as to the appointment of 
 
 mnb T. Jacob, 1 Salk. 160. Smith t. a new trustee in place of a bankrupt 
 
 Hvdion, 34 Law J., Q. B. 145. trustee. Yate Lee on Bankruptcy, pp. 
 
 (6) LoadY. Green, 15 M. & "W. 216. 445—447. 
 
 {c) SmmomY.£dmard8,l6 M.&yf.SSS. 
 
SECT. 2.] APPAEENT POSSESSION BY BANKRUPTS. 359 
 
 bank books, or the books or register of the company (/). However, 
 where the trust has not been created by a third person, but by the 
 cestui que trust, or person beneficially interested himself, who has 
 clothed the bankrupt trustee with the apparent ownership of shares 
 in a public company, by buying them in the name of the latter, 
 and procuring him to be registered as a shareholder, and permitting 
 him to have possession of the scrip certificates, and to attend the 
 meetings of the company, and vote as owner, there may be an 
 apparent ownership with the consent of the true owner, within the 
 mischief of the statute, for a delusive credit may be occasioned by 
 a secret trust of that description {g). So property of testators and 
 intestates, held by executors and administrators, in the ordinary 
 course of their administration, is held by them as trustees, and 
 does not, therefore, pass to the trustee for the benefit of creditors 
 in case of their bankruptcy (li). But if they are allowed to continue 
 in possession of the trust property for several years, and to trade 
 with it, to all appearance, on their own account, by the persons who 
 are entitled to dispute their possession, and call them to account, 
 the property will be deemed to have been in the possession of such 
 executors, &c., as reputed owners, with the consent of the true 
 owners, within the statute (■i). 
 
 A seizure by a sheriff, under an execution against a bankrupt, 
 of the goods and chattels of a third person in the possession, order, 
 and ' disposition of the bankrupt, with the consent of the true 
 owner, does not in any way withdraw the goods from the posses- 
 sion, order, or disposition of the bankrupt, so as to interfere with 
 the title of the trustee Qc). 
 
 Goods in the apparent possession of the hanhrupt within the Bills 
 of Sale Ad.—Bj the 17 & 18 Vict. c. 36 (the BiUs of Sale Act, 
 1854), s. 1, it is enacted that aU bills of sale not duly filed, &c., 
 according to the Act, shall be void as against assignees of bank- 
 rupts, sheriff's officers, &c., so far as regards the property in, or 
 right to the possession of, the chattels comprised in the biU of sale, 
 which at the time of the bankruptcy shall be in the possession, or 
 apparent possession of the bankrupt (/) ; and by s. 7, it is pro- 
 vided that personal chattels shall be deemed to be in the " apparent 
 possession " of the person making the bill of sale, so long as they 
 shall remain in any house, mill, warehouse, &;c., land, or other 
 premises occupied by him, or shall be used and enjoyed by him 
 
 {/) Rogers, Hx parte, 25 lia.w J., Bankv. 3 Burr. 1369. Ludlow y. £rowning, 11 
 
 41. Witham, Ex pairte, 1 M. D. & De G. Mod. 139. •* 
 
 624. Pinkett t. Wright, 2 Hare, 120. {i)Fox v. Fisher, 8 B. & Aid. 136. 
 
 Ex parte Stewart, 34 Law J., Ch. 6. Thomas, Ex parte, 3 M. D. & De G. 40. 
 
 . (g) Burhridge, Ex parte, 1 Deac. 142. ■ (k) Barrow v. Bell, 5 Ell. & Bl. 540 ; 
 
 Ord, Exparte, ib. 170. 25 Law J., Q. B. 3. . , 
 
 (A) Ld. Mansfield, Howard \. Jemmett, (I) See Ex parte Cohen, L. E., 7 Ch. 
 
 App. 20. 
 
360 CONVERSION OF CHATTELS. [CHAP. VII. 
 
 in any place whatsoever, notwithstanding that formal possession 
 thereof may have been taken by, or given to, some other person. 
 Where the holder of an unregistered bill of sale of furniture took 
 formal possession of the goods, by sending in a man to take pos- 
 session, who remained in the house, ^but did not remove the furni- 
 ture, or interfere with its use by the bankrupt, and subsequently 
 put up placards announcing an auction of the furniture, but 
 nothing appeared in the placards to show that it was not a sale 
 made by the bankrupt himself, it was held that the goods remained 
 in the apparent ownership of the bankrupt, within the above Act, 
 and passed to the trustee in bankruptcy (m). The mere fact of 
 the goods remaining in the house, however, is not of itself fatal to 
 a bin of sale, if they have ceased at the date of the bankruptcy to 
 be in the actual or apparent possession of the bankrupt (w). 
 
 Title to trust jproperty. — ^A trustee can never assert a title of his 
 own to trust property. He may destroy that property, and render 
 himself responsible in consequence ; if it be stock, he may sell the 
 stock, and invest the proceeds in other property. If he destroy the 
 trust f and by paying away the money, the trust is at an end ; but 
 if he invests it in other property, and that can be traced, he is still 
 in possession of the trust property, and to that he can never assert 
 a right. If a person having trust property and property of his 
 own chooses to mix the two together, the whole becomes trust pro- 
 perty, subject to this, that whatever he can distinguish as his own 
 he can take out ; whatever he cannot distinguish remains for the 
 benefit of the trust until that trust is satisfied. Property has been 
 frequently identified through a long' course of dealings and trans- 
 actions as being the original assets, which may be followed and 
 clothed with the original trust (o). 
 
 Right of property in things taken and converted after recovery of 
 jvdgment in an action for the conversion of them. — The recovery of 
 judgment by a plaintiff in an action for the wrongful taking and 
 converting his goods and chattels has the effect of transferring the 
 property of the goods converted from the plaintiff to the defendant 
 if the judgment has been satisfied. The plaintiff, by recovering 
 damages for the wrong, loses his right of property in the chattel 
 that has been converted, and this transfer of the right of property 
 dates back, by relation, to the time of the conversion. The damages 
 recovered by the plaintiff against the defendant are regarded as 
 the price of the goods, " so that the defendant hath now the same 
 property therein as the original plaintiff had, and this against all 
 
 (m) Ex parte Lewis, L. R.. 6 Ch. App. (ji) Oough y.Everard, 2 H. & C. 1. See 
 
 626. Ex parte Hooman, re Vininff, li. U,, anJe, p. 332, n. (»). 
 10 Eq. Ca. 63, ace. (o) Frith r. OartUmd, 34 Law J., Ch. 
 
 301. 
 
SECT. 3.] EEMEDY BY EECAPTION. 361 
 
 the world" (p). Having once recovered judgment and satisfaction 
 in respect of the goods, the plaintiff cannot recover again the same 
 thing against somebody else. His further remedy is altogether gone, 
 and his claim satisfied. By damages recovered is meant damages 
 paid (q). 
 
 SECTIOlSr III. 
 
 REMEDIES FOE THE WEONGFUL CONVEESION OF CHATTELS. 
 
 If a man's goods are taken by an act of trespass, and are subse- 
 quently sold by the trespasser and turned into money, the person 
 thus deprived of his goods may bring an action for the trespass, or, 
 waiving the trespass, he may sue for the conversion of the property, 
 or, waiving the tort altogether, he may sue for money had and 
 received (r). 
 
 Recaption of goods wrongfully seized or stolen. — If A has actual 
 possession of a chattel, and B takes it from him against his will, A 
 may use as much force as is necessary to defend his r^ght and 
 enable him to retake the chattel ; and if a chattel has been seized 
 and carried away by a person who has no colour of title to it, and 
 the owner comes and demands it, and the trespasser refuses to give 
 it up, the owner may use force sufficient to enable him to reta,ke 
 his property (s). A person, therefore, who has been robbed is 
 entitled to retake the stolen property wherever he can find it, 
 provided the person in possession of it has not acquired a title to 
 it by purchase in market overt, without notice of the robbery. He 
 is not justified in committing an assault, or a breach of the peace 
 in order to possess himself of the property, unless he finds it in 
 the hands of the thief or the felonious receiver; but he must 
 watch his opportunity for recovering possession, and if he is unable 
 peaceably to retake it, he must pursue his remedy by writ of resti- 
 tution, or by action. If there has been no alteration of the right 
 of property in the thing stolen, by sale in market overt, he may at 
 once demand it from the person in possession of it ; and if the 
 latter refuses to deliver it up to liim on demand, he may bring his 
 action ; but he cannot, as we have seen, sue the thief himself, or 
 the felonious receiver, until he has done his duty to society by 
 prosecuting the felon {ante, p. 31). 
 
 (p) Per Our. Adams v. Sroughton, C.J., in SucJcland v. Johnson, 15 C. B. 
 
 Andr. 19 ; 6 M. & Gr. 640, n. Bylea, J., 163. 
 
 Ednumdson v. NuttaU, 34 Law J., 0. P. , (r) Modgers v. Maw, 15 M. & W. 448. 
 
 202. ^^<^ V- Sdrding, 6 Exoh. 349. 
 
 (a) Bnnsmead v. ffwrrison, L. R., 6 C. (s) Blades v. Siggs, 10 C. B., N. S. 
 
 P 584 OTerruling the dictum of JerviB, 713 ; 30 Law J., C. P. 347 ; 34 ibid, 286. 
 
 ' Jiex T. Milton, 3 C. & P. 31. 
 
362 CONVEESION OF CHATTELS. [OHAP, VII. 
 
 The remedy, by way of action, for the recovery of the stolen 
 property, or for damages for its detention or conversion, is confined, 
 as we have seen, to those persons who had it in their possession at 
 the time of the conviction of the thief or afterwards {aide, p. 338). 
 
 Of the plaintiffs in actions of tresspass and conversion. — The 
 person in whom the general property in a personal chattel is vested 
 may maintain an action of trespass for the taking or injuring of the 
 chattel by a stranger {f), although he has never had possession in 
 fact, for the general property draws to it the right of possession (ti). 
 A person entitled to the temporary possession of chattels for a 
 particular purpose may also maintain an action for a trespass, or 
 for the conversion of such chattels against any person who takes 
 possession of them, without having any colour of right so to 
 do (a;). He may be entitled to sue the owner, if he has a right as 
 against the latter to the temporary possession of the chattel, and 
 the owner refuses to deliver it up on demand (y). An auctioneer 
 has a special property as bailee in goods and chattels which are put 
 into his possession for the purpose of sale, whether such goods and • 
 chattels be in his own rooms, or in the house of another person ; 
 but this is not the case with regard to fixtures. An employment to 
 sell fixtures only authorizes him to sell the right of detaching and 
 removing the fixtures ; he has no possession of them as chattels, 
 unless it was intended that he should have possession of them 
 after they were detached. Where, therefore, fixtures sold by an 
 auctioneer were to be detached and removed by the purchaser, it 
 was held that the auctioneer could not maintain an action for their 
 wrongful removal («). 
 
 If a timber-tree growing on land demised to a tenant is cut 
 down, the property in the tree is in the lessor, and he may maintain 
 an action against any person who carries it away (a) ; but the lessae . 
 has sufELcient possession and special property in him to enable him 
 to maintain an action for the conversion of the timber. Property 
 in the hands of very young children is in the constructive posses- 
 sion of the father and master of the house ; but watches and books 
 given by a parent to a school-boy or apprentice, and taken away 
 from home, are the property of the boy ; and if they are taken 
 away, detained, or converted by a wrong-doer, the boy, and not the 
 parent, is the .proper person to sue for the injury (6). 
 
 If the owner of chattels has, by contract, parted with the 
 possession of them for a certain time, and has only a reversionary 
 
 (t) Biaty V. Gibbons, 16 East, 116. (y) Roberts v. Wyait, 2 Taunt. 268. 
 
 (u) Bro. Abr. Tebspabs, pi. 303, 346 ; (z) Dams t. Dcmks, 3 Exoh. 435. 
 
 Latch. 214. (a) Berry v. Heard, Cro. Car. 242. 
 
 {x) Burton v. Euglm, 9 Moore, 339. (5) Hunter t. Westbrooh, 2 C. & P. S78. 
 Sutton V. Buck, 2 Taunt. 307. 
 
SECT. 3.] REMEDY BY ACTION — PARTIES. 363 
 
 interest, lie cannot sue a wrong-doer for trespassing upon or con- 
 verting the property (c), unless the taLLee, or person clothed with 
 the. right of possession, has, by some wrongful act of his own, 
 determined the bailment, or the privity of the bailment has been 
 destroyed by the act of a wrong-doer in taking the goods out of 
 the possession of the bailee, and selling them, or converting them 
 to his own use (d). But although the bailor cannot sue for a 
 trespass or for a wrongful conversion of the property, yet he may 
 maintain an action on the case against a wrong- doer, who by negli- 
 gence or misconduct has caused the goods to be destroyed or 
 permanently injured (e). 
 
 Every hirer has the use, not the dominion, of chattels demised 
 to him, and therefore, when he alters or changes the nature of the 
 property, or does anything to destroy its identity, his right of using 
 it is at an end, the bailment is determiaed, and an action is main- 
 tainable for the wrongful conversion of the property (/). " If I 
 lend to one my sheep to tathe his land, or my oxen to plough the 
 land, and he Icilleth the cattle, I may well," observes Littleton, 
 "have an action of trespass against him, notwithstanding the 
 lending." " And the reason," saith Coke, " is that when the bailee, 
 having but a bare use of them, taketh upon him, as owner, to kill 
 them, he loseth the benefit of the use of them " (g). If the hirer of 
 chattels sends them to an auctioneer to be sold, this is a conversion 
 of the goods to his own use, which at once determiues the bailment, 
 and the owner has an immediate right of possession, and may at 
 once sue for the recovery of the goods, or for damages for the loss 
 of them (A). 
 
 If goods of the plaintiff have been let to hire to a tenant, and 
 have been distrained for rent wMlst in the possession of the latter, 
 and impounded, the plaintiff, nevertheless, retains his right of 
 property in the goods, whilst they continue in the custody of the 
 law, and in case of pound breach against those who take and 
 convert the goods (i). 
 
 Where the owner of a furnished house puts a person into the 
 possession of the house to manage a business for him, at a certain 
 agreed rate of remuneration, and gives him the use of the furniture, 
 the occupier is the mere servant of the owner, his possession of the 
 furniture is the possession of thp master, and the latter is entitled 
 
 (c) Gordon t. ffarper, 7 T. E, 13. 3 Campb. 186. 
 
 JBraMei, y. Copley, 1 0. B. 698. _ (/) Bryant y.WardeU, 2 Exch. 482. 
 
 (d) See vost, eh. 9. Scott v. Nemngtcm, Holroyd, J., in Fwnmt v. Thompton, 5 
 1 m;& Rob. 252. B. & Aid. 829. Fern, v. BitOeston, 7 
 
 (e) Mears r. Land. & South-West. Badl. Exch. 159. 
 
 Co 11 C. B., N.S. 850 ; 31 Law J., 0. P. (g) Co. Litt. 57a— 57b. 
 
 221 Tmcred v. AUgood, 4 H. & N. 438 ; (h) loeschmm v. Machin, 2 Stark. 312. 
 
 28 Law J Exch. 362. Eall v. PkJcm-d, (i) Twner v. Ford, 15 Hi. & W. 215. 
 
364 CONVEKSION OF CHATTELS. [CHAP. TIL 
 
 to take it away at any time Qc). A mere gratuitous bailment of a 
 chattel to another {post, ch. 9) does not remove the chattel out of 
 the possession of the bailor, and does not prevent the latter' from 
 suing a third person who takes and converts the chattel, with ot 
 without the authority of the bailee. If goods are bailed by A to 
 B, to be kept by the latter, and B bails them to G, who uses and 
 wastes the goods, G is liable to an action at the suit of A for the 
 recovery of compensation for the damage sustained (V). If the 
 owner of a cliattel gives a gratuitous permission to another to take 
 the chattel and use it, he may, nevertheless, maintain an action 
 against a stranger who takes, damages, or converts the chattel, whilst 
 it is being used by the person to whom it has been lent {ni). 
 
 Joinder of joint-owners as plaintiffs — Joint-tenants and tenants 
 in common of chattels. — ^When several persons are joint-owners of a 
 chattel, they must all be joined as plaintiffs" in an action for the 
 conversion of it (see ante, pp. 70, 20.3, 290). Where some engravings 
 had been mortgaged to the plaintiff, and the plaintiff and the 
 mortgagor, after the execution of the mortgage, placed the engrav- 
 ings in the hands of the defendant in their joint names, to be sold 
 by him by a public lottery or raffle, which failed for want of 
 subscribers, and the mortgagor, being greatly in debt, absconded, 
 and the plaintiff then demanded the engravings, but the defendant 
 refused to deliver them to him alone, without an indemnity, it was 
 held by Jervis, C. J., that the refusal was ' right, and that the 
 plaintiff had no ground of action in respect thereof against the 
 defendant (n). But it has been held, that if one tenant in common 
 of a personal indivisible chattel bring an action for the conversion 
 of it against a stranger, if the stranger doth not plead the tenancy 
 in common in abatement, he can have no benefit of it in evidence 
 on the general issue (o), and the plaintiff will be entitled to recover 
 damages in proportion to the extent and value of his interest, and 
 the damage he has sustained {p). 
 
 Parties to le made defendants. — Every person who aids and 
 assists in the act of conversion is responsible for the entire damage 
 that has been sustained, although he acted only as the friend of 
 another wrong-doer, the real principal in the transaction, or is 
 merely a servant obeying his master's orders, and had no idea of 
 committing any wrongful act himself. It is no answer that he 
 
 (£) Se^-tie t. Beaumont, 16 Bast, 3S. (n) EwU v. Bryant,. 0. B. Sittings 
 
 Mayhew v. SutUe, White v. Bailey, ante, after Trinity Term, 1852. And see mU 
 
 pp. 272, 273. cli. 9, s. 2. ^ ' 
 
 (J) 12 Ed. 4, fol. 13, pi, 9 ; fol. 9, pi. 5. (o) King, O.J., Barnardiston v. Chap- 
 
 {m) Zotan t. Cross, 2 Oampb. 465. man, cited 6 T. R. 770. 
 
 NicoUs y. Bastard, 2 0. M. & E. 659. (p) Dockwraij v. Dickenson, Skin C40 
 
 Turner t. Ford, 15 M. & "W. 212. Man- Addison v. Overend, 6 T. E. 770. 
 ders T. Williams, i Exoli. 343. 
 
SECT. 3.] REMEDY BY ACTION — PARTIES. 365 
 
 acted under authority from another, who had himself no authority 
 in the matter (q). Every master and employer is, of course, 
 responsible for a conversion hy his servant acting in obedience to 
 liis master's orders, or in the execution of his duty to his employer. 
 Thus, if a ship-owner gives orders or directions to his ship-master 
 to detain goods shipped on board, the ship-owner will be responsible 
 for everything done by the ship-master whilst acting in obedience 
 to his orders (r). And if a pawnbroker's servant, in the execution 
 of his master's business, refuses to deliver up a pawn to the pawnor, 
 on tender of the money due on it, the refusal of the servant is the 
 refusal of the master, and the latter is responsible in damages for a 
 conversion (s). However, no petition of right can be maintained 
 against the Crown for the act of the captain of a man-of-war in 
 seizing a vessel wrongly supposed to be engaged in the slave 
 trade (t). The remedy for the ship-owner is in the Court of 
 Admiralty (u), with an appeal to the Privy Council (v). If a man 
 has intermeddled with the goods of a deceased person for the 
 purpose of preserving and administering his estate, and has thus 
 made himself executor de son tort, he may be sued for a trespass 
 and conversion by the rightful administrator, when he has obtained 
 letters of administration ; but if no injury has been sustained by 
 the estate, nominal damages only would be recoverable (x). 
 
 In order to recover against several persons for a joint-conversio n 
 it must be proved that all concurred in some joint act of conversion. 
 If the facts exclude a joint-conversion by aU. the defendants, but 
 show separate acts of conversion, in which some have participated 
 and others not, some of the defendants may be found guilty and 
 others may be acquitted, for several may be joined as defendants 
 in an action for conversion, and one only may be found guilty (y). 
 Where a ship-captain, bond fide intending to execute the duties of 
 his employment, made a mistake in disposing of the cargo, which 
 amounted to a conversion of it, it was held that there was a joint- 
 conversion by the master and owner (z). If a married woman is 
 (ruilty of a conversion of chattels, she and her husband may be 
 joined as defendants (a). Where some sheriff's officers, being 
 authorized to seize the goods of A, by mistake took the goods 
 of the plaintiff, and lodged them in the defendant's stable, and 
 
 (o) Parker v. Godin, 2 Str. 813. Ste- («) Tobih v. The Qiuen, 33 Law J., C. 
 
 phens V. £lwaU, 4 M. & S. 261. P. 199. 
 
 (r) Schuster v. M'KeOar, 7 Ell. & BL (v) Casanova r. The Queen, L. E., 1 
 
 704 • 26 Law J., Q. B. 288. P. 0. Ca. 269. 
 
 (s) Jones V. Hwrt, 2 Salk. 441. {x) Elworthy v. Sandford, 34 Law J„ 
 
 («) As to the seizure of a ship con- Exoh. 42. 
 
 trary to the provisions of the Toreiga {y) NieoU v. Gleimif, 1 M. & S. 589. 
 
 Enlistment Act, 1870, see the provi. Ante, pp, 205, 291, 
 
 gions of that Act, 33 & U Vict, c. 80 ; (f) Ewbanh v. NvMmg, 7 CJB, 808, 
 
 gep B S8; (*^ Keyw<>rth v, JiiU, 8 B, & Aid, 688, 
 
366 TRESPASS AND CONVERSION OF CHATTELS. [CHAP. VII. 
 
 when the plaintiff came and demanded the goods, the defen- 
 dant's wife, in the defendant's absence, refused to give them 
 Tip, saying, " I am told I shall be borne harmless," it was held 
 that both the husband and wife were responsible for a con- 
 version (&). 
 
 Of the staying of proceedings on tJie delivery of the chattels to the 
 plaintiff. — In actions for the conversion of goods and chattels, the 
 defendant may, in certain cases, where no special damage is alleged, • 
 or, if alleged, where it is merely colourable, obtain an order for a 
 stay of proceedings on the terms of the delivery of the goods to 
 the plaintiff, and the payment of nominal damages and costs (c). 
 In an action for the conversion of a packet of letters, the defendant 
 was allowed to stay proceedings as to one of the letters, upon 
 delivering it up to the plaintiff, and paying costs (d). But where 
 there is any uncertainty, either as to the quantity, or quality, or 
 value, of the things which have been converted, or when damages 
 have been sustained over and above the value of the goods, the 
 court, or a judge wUl not interfere to stay the proceedings upon the 
 delivery of the goods to the plaintiff (e). 
 
 Declarations for a trespass, or for the conversion of chattels. — 
 Whenever the goods and chattels of one man have been wrongfully 
 taken and carried away by another, the wrong-doer may be sued 
 either for a trespass or for a conversion of the chattels. If the 
 chattels have come lawfully into the possession of the defendant, 
 and there was no trespass in the taking of them, but the defendant 
 fails to deliver them within a reasonable time after they have beeii 
 demanded by a plaintiff entitled to the possession of them, the 
 declaration should be for a conversion of them. A declaration for 
 a trespass upon personal property alleges, either that the defendant 
 seized and took certain goods and chattels of the plaintiff, and 
 damaged and destroyed them, or deprived the plaintiff of the use 
 of them, or that he shot at and lamed the plaintiff's dog, and 
 greatly injured it, or that the defendant drove his horse and cart 
 against the horse and carriage of the plaintiff, and greatly damaged 
 them, and deprived the plaintiff of the use of them, and obliged 
 him to hire another horse and carriage, &c., as the case may be, 
 claiming damages in each case. A declaration for the wrongful 
 conversion of the plaintiff's chattels by the defendant simply 
 alleges " that the defendant converted to his own use, or wrongfully 
 deprived the plaintiff of the use and possession of the plaintiff's 
 goods/' describing them (/). 
 
 ih) Catterall v. Kenyon, 3 Q. B. 310. v. BeHno, 1 Wils. 23. Qibson v. Himi- 
 
 (c) Chitty's Arch. Pr, 1367, llth ed. phrey, 1 Or. & M. 544. , iMxut v. Land, 
 
 (i) Earle v. HoUemesij 4 Birig. 462. Doth Co., 4 B. & Ad. 378. 
 it) Tucher v. Wright, 11 Mobte, Sfl3. (/) 15 & 16 Viot. c. 76, Sched. B. 28. 
 
 Whitten t. Fuller, 2 W. Bl. 901. Olwant Holmes v. Eodgion, 8 Moore, 379. 
 
SECT. 3.] ACTIONS— PLEADINGS— EVIDENCE. 367 
 
 Where a tenant, during his tenancy, whilst removing a dung- 
 heap, dug into and carried away a quantity of virgin-soil beneath 
 the dung-heap, it was held that the soil, so soon as' it had been 
 severed from the freehold, vested in the landlord as a chattel, so as 
 to enable him to declare against his tenant for a trespass de howis 
 asportatis, or for a conversion of chattels (g). 
 
 What may he given in evidence under the flea of not guilty. — In 
 actions for a trespass, or for converting the plaintiff's goods, the 
 plea of not guilty operates as a denial of the defendant's having 
 committed the wrong alleged by taking or convertiag the goods 
 mentioned, but not of the plaintiff 's property therein, and no other 
 defence than such denial is admissible under that plea (h). "Where- 
 ever, therefore, the defendant allows that he meddled with goods 
 which were the property, and in the possession, of the plaintiff, he 
 is presumed to be a trespasser, and if he has any matter of justifi- 
 cation, or any authority, general or particular, express or implied, 
 from the plaintiff, this must be specially pleaded. Therefore, where 
 an action was brought against the defendant for unmooring the 
 plaintiff's barge, it was held that the defendant could not, under 
 the plea of not guilty, give in evidence facts and circumstances 
 showing that he was justified in so doing ; such as that the barge 
 was in the greatest danger of being carried away by floating ice, 
 and that the defendant, being employed generally by the plaintiff 
 to look after his barges, removed the barge from a place of danger 
 to a place of safety (i). 
 
 The plea of not guilty in actions for the conversion of chattels 
 puts in issue the wrongful character of the act, so that if the defen- 
 dant detained them in the exercise of a legal right consistent with 
 the fact of the right of property being in the plaintiff, the true 
 character of the detainer and the existence of the right may be 
 given in evidence under the plea of not guilty. The demand and 
 refusal of the goods are not in themselves an actual conversion, 
 but only evidence of it. Any fact, therefore, explanatory of the 
 demand and refusal is receivable in evidence under the plea of not 
 cuilty, because it goes directly to show that there was no conver- 
 sion at all : such as the fact that the defendant has a lien upon the 
 chattel in his hands, or that he and the plaintiff were joint-owners 
 of the chattel, and that what the defendant did was in the exercise 
 of his legal rights as joint-owner with ths plaintiff (A), or that the 
 defendant had some qualified right in it, and has only dealt with 
 the article in the manner in which he was entitled to deal with it 
 
 (a) Higgm v. MSrtvmer, 6 C. & P. 616; Ell. & BI. App. Ixxxi. 
 ante, pp. 233, 2S9, 313. (i) MUmanr. DohweU, 2 Cafflpb. 378. 
 
 (h) Ec"-. Gen. Hil. Term. 16 Vict., 1 (A) Higrjins v. Thomas, 8 Q. B. 908. 
 
368 TRESPASS AND CONVEESION OF CHATTELS. [CHAP. VII. 
 
 iu the exercise of his legal right (I). But a defence to the effect 
 that the chattels had been given by the defendant to the plaintiff, 
 subject to a condition not performed, whereupon they again became 
 the property of the defendant,, whereupon the latter retook them, 
 and claimed to keep them as his own property, is not admissible 
 under the plea of not guilty (m). 
 
 Pleas denying the plaintiff's right of property in, or his right to 
 tlie possession of, the chattel. — If the defendant intends to dispute the 
 plaintiff's title to, or his right to the possession of, the chattel taken 
 or converted, he must plead a plea, alleging that the goods and 
 chattels taken or converted were not, at the time of the alleged 
 conversion, the property of the plaintiff, or that the plaintiff was 
 not then entitled to the possession of them. Under this plea the 
 defendant is at liberty to set up any circumstances showing that 
 the plaintiff has no property in, or right of possession of, the goods, 
 in respect of which he is entitled to maintain the action against the 
 defendant. A plea, denying that the goods are the goods of the 
 plaintiff, puts in issue the plaintiff's property in, as well as his 
 right to the possession of, the goods (w). If the defendant lias, by 
 contract, acquired a right to take and carry away the chattel, the 
 contract may be given in evidence under a plea denying that the 
 chattfel was at the time of the seizure the chattel of the plaintiff (o). 
 Under' this plea it is competent to the defendant to show that the 
 plaintiff had parted with the property before the cause of action 
 arose, or that the defendant had a lien upon the goods, as a right of 
 lien on the part of the defendant is inconsistent with a right of 
 possession on the part of the plaintiff (jj), or that the title to tHe 
 goods had become vested in a trustee or trustees under a bank- 
 ruptcy {q), or that the plaintiff's title has been defeated by matter 
 subsequent to the bailment (r). In an action against trustees of a 
 bankrupt for the conversion of chattels, the defence that the goods 
 were at the time of the bankruptcy in the order and disposition of 
 the bankrupt, with the consent of the true owner, and that the title 
 to the goods vested in the trustees, is admissible under a plea of 
 not possessed (s). 
 A" plea of the previous recovery of judgment by the plaintiff in 
 
 (I) Young v. Cooper, 6 Exch. 259 ; 20 Barton v. Brown, 5 M. k W. 298. Owen 
 
 Law J., Exch. 136 ; Parke, B., in Kynas- v. KnigU,'i B. N. C. 54. 
 
 tm, V. Crouch, 14 M. & W. 272. Wilkinson (g) Leake v. Loveday, 5 So. N. E. 921 s 
 
 V. WkaUey, 5 M. & Gr. 590. VerraU v. 4 M. & Gr. 972. Howwrth v. Tollemache, 
 
 Robimon, 2 C^M. & R. 495. ib. 329. 
 
 (m) Jorm i. Dames, 6 Exch. 663; ante, (r) Martin, B., Thorne v. Tilbury, 3 H. 
 
 pp. 73, 160. & N. 539 J 27 Law J., Exch, 407 ; post, 
 
 (n) Harrison v. Dixon, 12 M, & W, ch. 21. 
 
 142. (s) Eenlop V. Baker, 8 Exch. 411 ; 22 
 
 (o) Jlicharda v, Symonf, 8 Q. B. 90. Law J., Exch, 333, /}««« v, ^either, 5 
 
 (p) Dorrington v. Carter, 1 Exch, 566, M. d W, JS9, 
 i9«f T, fewsojj, 13 4d. ^ E, ne, n, 
 
SECT. 3.] ACTIONS — ^PLEADINGS — EVIDENCE. , 369 
 
 an action for the conversion of the property brought against some 
 third person, under whom the defendant claims, is, as we have seen, 
 an answer to the action (^).- 
 
 Pleas of justification. — If the defendant intends to justify the 
 taking of the goods on grounds distinct from any question of title 
 or right of property or possession, he must set forth his ground of, 
 justification in a special plea ; such as, that the goods and chattels 
 mentioned in the declaration were wrongfully upon the defendant's 
 land, encumbering the same, and doing damage there to the defen- 
 dant, whereupon the defendant took the goods and carried them to 
 the plaintiff 's land, and deposited them there, doing no damage to 
 them that could be reasonably avoided {u) : or if the plaintiff com- 
 plains of the shooting of his dog by the defendant, the latter may 
 justify the trespass or conversion of the animal, on the ground that 
 the dog was trespassing on the defendant's land in pursuit of and 
 worrying ^the plaintiff's sheep, or hunting and chasing the defen- 
 dant's deer, and that the defendant had no means of protecting his 
 sheep or deer from injury but by shooting the dog, and that he 
 therefore shot it (x). 
 
 Evidence at the trial — Proof ly the plainti;ff. — To enable a 
 plaintiff to maintain an action and recover damages for a seizure 
 or conversion of chattels, he must show that the seizure was 
 wrongful, and that he has been damnified by it (ij). He, must, 
 therefore, give some general evidence of his right to the cha;ttel, 
 and of the wrong done to hini by the defendant in taking it away ; 
 for if there is no proof of his having ever been in possession of 
 the chattel, or of his having any right to the possession of it, there 
 is no proof of any wrong having been done to him, nor any evidence 
 of any cause of action, nor anything to support the material aver- 
 ments of the plaintiff's declaration [z). Where the plaintiff proved 
 that the defendant seized some Qhairs and tables in a house which 
 was not the plaintiff's house, and carried them away, and the only 
 plea on the record was a plea of not guilty, it was held that the 
 plaintiff must, nevertheless, give some general evidence of his right 
 to the possession of the chairs and tables to constitute a^cause of 
 action, and establish the tort or wrong charged in the declaration {a). 
 If in a declaration for a trespass in entering a house and seizing 
 goods there is no allegation that the goods belonged to the plaintiff, 
 nor any admission to that effect on the record, there-is no disclosure 
 of any cause of action (&). Possession of chattels, however, is 
 primA facie proof of ownership, and mere proof of possession will 
 
 ' («) AnU, pp. 360, 361. {fl TanareA Y.AV^ood, 4 H. & N. 438; 
 
 (m) Cole V. Maundy, Eea t. Sheward, 28 Law J., Exch. 362. 
 2 M. & W. 426. (^) Channon v. Patch, !> B. & 0. 897. 
 
 (x) Barrinnton v. Turner, 3 Lev. 28. (a) Forman v. Dawes, Car. & M. 129. 
 
 {h) Pritchnrd v. Long, 9 M. & W. 666. 
 
 B B 
 
370 TRESPASS AND CONVERSION. [CHAP. VH. 
 
 entitle a plaintiff to recover in an action of trespass or trover 
 against a wrong-doer (c). 
 
 Proof of constructive possession of chattels. — If a man cuts down 
 wood or rushes, and stores them on the ground ready to he carried 
 away, the things so severed from the realty are in the actual pos- 
 session of the person who has cut them down, and proof that the 
 act of severance has been committed by the plaintiff is, sufficient 
 primd facie evidence of title to enable the plaintiff to maintain an 
 action against another person for seizing them and carrying them 
 away, and the plaintiff's primd facj,e title cannot be disputed under 
 the plea of not guilty (d). Proof that the plaintiff dug out ore, or 
 sand and gravel, and piled it in heaps on the ground, is primd facie 
 proof that he is entitled to the heaps («). Proof that the plaintiff 
 is the owner of a vessel taking in cargo is primd facie evidence 
 that the plaintiff is the owner of the cargo (/). If the plaintiff 
 shows that he has a right to the possession of chattels, this will 
 enable him to maintain an action for damages without proof that 
 he has ever had actual possession of them, or that he is the owner 
 of them ; for a factor to whom goods have been consigned by the 
 owner for sale, and who has never received them, may maintain an 
 action for the conversion of them (g). There may be a constructive 
 possession of chattels in respect of the right of property being 
 actually vested in the plaintiff. Such is the case in an action of 
 trespass by the lord for an estray or wreck taken by a stranger 
 before seizure by the lord, where the right is in the lord, and a 
 constructive possession in respect of the thing being within the 
 manor of which he is lord. So the executor has the right imme- 
 diately on the death of the testator, and> the right draws after it a 
 constructive possession (A). If trees growing on land demised to a 
 tenant are cut down by the latter, or fixtures attached to a dwelling- 
 house are severed by the tenant, the landlord has an immediate 
 right of possession of the trees and fixtures so severed from the 
 inheritance ; they are his goods and chattels, and if they are tak^n 
 away from the demised' premises he may maintain an action fof the 
 conversion of them (i). 
 
 However, where there was an absolute assignment of goods by 
 deed, with a covenant to pay a certain debt on demand, and a 
 proviso for redemption on payment of the debt, and a further 
 proviso that the assignor should continue in possession until default, 
 
 (c) WM V. Fox, 1 T. E, 397. See post, (/) Brmcker v. Molyneux, 3 M. & Or. 
 p. 372. 84. 
 
 (d) EacTcham v. Jemp, 3 Wils. 332. {g) Eyre, C.J., Fowler v. Dovm, 1, B. & 
 
 (e) NoHham t. Bowden, 11 Exoh. 70 ; P. 47. 
 
 24 Law J., Exch. 238. Fowe v. Brenton, (h) Smith v. Milles, 1 T. E. 480. 
 
 8 B. & C. 737. (t) Farrant v. Thompeon, 5 B. & Aid, 
 
 9^3, 
 
SECT. 3.] EEMEDY BY ACTION — EVIDENCE. 371 
 
 and before any default made the goods were taken in execution and 
 sold by the sherifij it was held that the assignee had Jiot such a 
 right of immediate possession as would entitle him to maintain an 
 action agaiast the sheriff for a conversion of the goods (Jc). 
 
 Proof of title of trustees of lanhrujots, executors, and nominal 
 parties. — In aU actions by and against trustees of bankrupts, or 
 executors, or administrators, or persons authorized by statute to sue 
 or be sued as nominal parties, the character in which the plaintiff 
 or defendant is stated on the record to sue or be sued is not in 
 issue unless it is specially denied (I). The Bankrupt Act, 32 & 33 
 Vict. c. 71, s. 10, makes the London Gazette conclusive evidence of 
 the debtor having been duly adjudged a bankrupt, and of the date 
 of the adjudication, in criminal as well as civU proceedings (m). 
 
 Proof of conversion. — It is necessary for the plaintiff in an 
 action for the conversion of chattels to prove either that the 
 defendant unlawfully meddled with the ' plaintiff's goods, and 
 removed them from some place where they had been deposited by 
 the plaintiff, and that the goods had since then been lost to the 
 plaintiff, or that the chattels came to the hands of the defendant 
 wrongfully, or by a tortious taking, or that the defendant has 
 unlawfully exercised dominion over them, to the prejudice of the 
 plaintiff, or that there has been a wrongful destruction of the 
 chattels {ante, p. 322). If the property came lawfully into the 
 possession of the defendant, or under his dominion and control, 
 there must then, as we have seen, be proof of a demand and 
 refusal of the property by a party entitled to make the demand, 
 and have possession of the chattels (ante, pp. 323, 324). 
 
 The refusal must, as we have seen, be an absolute refusal, and 
 not a qualified conditional refusal, amounting only to an objection 
 to deliver the goods, until the plaintiff's title to them has been 
 ascertained {arute, p. 325). If the plaintiff complains of the con^ 
 version of a bank-note or. negotiable security, he must show that 
 the defendant got the note under circumstances which give him no 
 title to hold the note as against the plaintiff {ante, pp. 327, 328). 
 Any admission on the part of the defendant that the plaintiff's 
 property had come into his hands, or under his control, and had 
 then been wrongfully dealt with by him, wiU be evidence of a con- 
 version. Thus, where a defendant, in answer to a demand made 
 upon him by the plaintiff for the delivery of a bill of exchange, 
 said that he could not give it up, because it had been burnt, it was 
 held that this was evidence of a conversion by him of the biH («.), 
 
 (h) SracUey v. Copley, 1 0. B. 685. in tankruptoy by production of records 
 
 (I) Eeg. Gen. Hil. Term, 1853, 1 EU. . sealed with the seal of the court, s. 107. 
 
 & Bl App. Ixxix. (™) M'Kewen v. Cotchinff, 27 Law J., 
 
 (m) See S. v. Len, 34 Lsjw J., M. C. C. P. 41. 
 
 174. And see as to proof of proceedings 
 
 B B 2 
 
372 TRESPASS AND CONVERSION. [CHAP. VII. 
 
 Evidence for the defence. — The defendant cannot, as we have seen, 
 set up any right or title to the subject-matter of the action in 
 answer to aprimdfacie case on the part of the plaintiff, unless the 
 right of possession or right of property has been put in issue by 
 the pleadings (ante, p. 368); but he may, as we have seen, 
 under the plea of not guilty, show that he has a lien on the goods, 
 and detains them in the exercise of such right of lien, or that he is 
 joint-owner of the goods with the plaintiff, or has some limited or 
 temporary right or interest in them, and has therefore a right to 
 keep them (ante, pp. 331, ,367). When goods have been taken 
 from the actual possession of the plaintiff, and the defendant fails 
 in establishing any title in himself to the property, so as to justify 
 the seizure, he will not be allowed to set up a jus tertii, and deny 
 the plaintiff's title to the goods ; for, as against a wrong-doer, 
 possession is title, and the presumption of law is that the posses- 
 sion and ownership of chattels go together, and that presumption 
 cannot be rebutted by evidence that the right of property was in a 
 third person, offered as a defence by one who admits that he had 
 no title and, was a wrong-doer when he took or converted the 
 goods (o). A wrong-doer, therefore, in_ actual possession of goods, 
 the property of another, can recover their value in an action against 
 another wrong-doer who takes the goods from him {p). 
 
 When the defendant is estopped from disputing the title of the 
 plaintiff. — If the defendant has by deed admitted the title of the 
 ' plaintiff to the chattels in respect of which the action is brought, 
 he will be estopped from disputing it at the trial (q). If he has 
 accredited the title of some third person to the goods, and so 
 induced the plaintiff to buy from the latter, he wiU be estopped 
 from setting up any title in himself (r). If the owner of goods 
 parts with the possession of them, and knowingly suffers his bailee 
 to deal with the goods as owner, and culpably and negligently 
 stands by and allows a third person to acquire an interest in the 
 goods on the faith and understanding of a fact which he can 
 contradict, and does not contradict, he will be afterwards estopped 
 from disputing the fact in an action against the person whom he 
 has himself assisted in deceiving. Thus, if A, the owner of goods, 
 stands by and permits £ to sell them to 0, without giving any 
 notice to C of his being the real owner of the goods, he will be 
 estopped from disputing C's title under the sale (s). 
 
 Where the plaintiff, in order to protect his personal effects from 
 
 t 
 
 (o) Heath v. Milwwrd, 2 So. 160 ; 2 B. (p) Jeffries t. Gt. West. Rail. Co., 5 Ell. 
 
 N. 0. 100. Carter v. Johnson, 2 M. & & Bl. 806 ; 25 Law J., Q. B. 107. 
 Eob. 265. Ashmore v. Hwrdy, 7 C. & P. (?) WiUs v. Woodward, 5 Bxoh. 557. 
 
 5t)5. Bourne v. Posbroohe, 34 Law J., (r) Waller t. Drakeford, 1 Ell. & Bl. 
 
 C, P, 164, 753. 
 
 (s) Orer/si T. WeUs, 10 Ad. & E. 98. 
 
SECT. 3.] EEMEDY BY ACTION — DAMAGES. 373 
 
 his creditors, delivered the actual possession of them to the defen- 
 dant, and, in order that the latter might appear to be the true 
 owner, made a priced invoice of the articles, and gave a receipt to 
 the defendant for the amount as on a sale, it was nevertheless held 
 that the plaintiff, as between himself and the defendant, was not 
 estopped from showing the real character of the transaction, so 
 as to entitle him to recover back the goods from the defendant. 
 Here no deed of transfer had been executed, and the jury found 
 that there was no sale and no intention of transferring the right 
 of property in the things to the defendant. "And," observes 
 Martin, B., " it is perfectly true that if an act be done, the party 
 cannot avail himself of his own fraud to undo it ; but here the act 
 is not done, as the jury expressly find there was no sale at all to 
 the defendant," and no transfer whatever of the property in these 
 goods to him (t). 
 
 Evidence winder pleaS of justification. — If the defendant has 
 placed a plea of justification on the record, aU the material aver- 
 ments of the plea should be proved. If the defendant justifies the 
 shooting of a dog, on the ground that the animal was hunting and 
 chasing deer in a park, or conies in a rabbit-warren, sheep in a fold, 
 or fowls in a poultry-yard, he must prove that the dog was in hot 
 pursuit at the time he shot it (m). But if a man allows his sheep 
 or his fowls to escape from his own land, and trespass upon his 
 neighbour's property, and they are there attacked and worried by 
 his neighbour's dog, he cannot justify the shooting of the dog in 
 defence of his strayed sheep or fowls. 
 
 Dogs trespassing in pursuit of animals /eras wa^wos cannot law- 
 fully be destroyed. " A dog," observes Lord EUenborough, " does 
 not incur the penalty of death for running after a hare in another 
 man's ground. And if there be any precedent of that sort which 
 outrages all reason and common sense, it is of no authority to 
 govern other cases. A gamekeeper has no right to kill a dog for 
 following game " {x), although the owner of the dog has received 
 notice that trespassing dogs wiU be shot (y). But a dog chasing 
 and pursuing game in a preserve might, it is apprehended, be shot, 
 if the game could not otherwise- be saved from destruction (s). 
 
 Of the assessment of damages. — ^Whenever the chattels of one 
 man have been wrongfully seized by another, who has assumed a 
 virtual dominion pver them, substantial damages are recoverable, 
 although no pecuniary damage can be proved to have been sus- 
 
 H) Bowes \.Forskr,^B..k-S.11Q;i1 v. Head, 4 C. & P. 568. Janson v. 
 Law J Bxoh. 262. Brown, 1 Oampb. 41. 
 
 (u) Bwn-mqUm r. Turner, 3 Lev. 28. (x) Yere v. Ld. Ocmdor, H East, 569. 
 
 Protheroe y. Mathem, 5 C. & P. 586. (y) Corner Y.Champneys, cited 2 Uavsh, 
 
 Wadhwit V. Barme, Cro. Jac. 45. WeUs 584. ^ no 
 
 (a) Head v. hdwards, ante, p. 23, 
 
374 TRESPASS AND CONVERSION. [OHAP. VII. 
 
 tained. Where, therefore, the defendant wrongfully seized the 
 plaintiff's horse and cart, and placed a man to keep possession of 
 them; who allowed the plaintiff the free use of the cart, which was 
 driven to market every day, it was held that the plaintiff was never- 
 theless entitled to recover suhstantial damages in respect of the 
 infringement of his proprietary rights (a). 
 
 In actions for the conversion of chattels, the full, value of the 
 chattels at the time of the conversion is the measure of the damages, 
 where no special damage has been sustained, and the goods have 
 not been tendered and received back after action (&). By the 
 recovery of the judgment the ownership of the converted property 
 is transferred, as we have seen, from the pldintiff to the defendant, 
 and the plaintiff . holds the damages as the price of the goods he 
 has lost {ante, p. 360) ; he is therefore entitled to their full market- 
 able value where he does not consent to receive them back. If the 
 chattel is of such a nature that the loss of it may readily be sup- 
 plied by the purchase of a similar chattel in the market, the damage 
 win be the marketable value of the chattel at the time of the 
 conversion. If the value of it is doubtful, every presumption is 
 made against the wrong-doer. Where a boy having found a jewel 
 set in a socket took it to a jeweller's to know what it was worth, 
 and the jeweUer took the jewel out of the socket to examine it, 
 and then refused to deliver it up, and the boy brought an action 
 for the conversion of the jewel, " several of the trade were examined 
 to prove what a jewel of the finest water that would fit the socket 
 would be worth, and the Chief Justice directed the jury, that 
 unless the defendant did produce the jewel, and show it not to be 
 of the finest water, they should presume the strongest against him, 
 and make the value of the best jewels the measure of their damages, 
 which they did " (c). 
 
 Where goods of the plaintiff had been deposited in the hands of 
 the defendant for manufacturing purposes, and, the plaintiff being 
 indebted to the defendant, the latter sued hini in the county court 
 and recovered judgment for the debt, but before he could lawfully 
 issue execution the plaintiff demanded his goods, which the defen- 
 dant refused to deliver, and subsequently the defendant caused the 
 goods in his hands to be seized and sold under the execution, and 
 the plaintiff brought his action for the conversion of the goods, it 
 was held that he was entitled to recover their fuU value, for there 
 is nothing unlawful in a man withdrawing his goods for the purpose 
 of avoiding an execution ; and, as by the result of the action in 
 
 (a) Bayllss v. Fhher, 7 Bing. 153. Nutting, 7 C. B. 809. Edmondson v. Nut- 
 
 (6) Wood V. Morewood, 3 Q. B. 440, n, toM, 17 0. B., N. S. 280 ; 34 Law J., C. P. 
 
 Fmch -v. Blount, 7 C. & P. i18. AUager 102. ' , 
 
 T. Close, 10 M. & W. 584. Mwbank v. (c) Armory t. Delamirie, 1 Str. 504. 
 
SKCT. 3.] REMEDY BY ACTION — DAMAGES. 375 
 
 the superior court, the property hecomes the defendant's, who has 
 thus seized his own goods in execution, his claim against the 
 plaintiff pro tanto is not satisfied, and he must resort to the county 
 court to issue fresh execution {d). ' 
 
 If an action is brought for the shooting of a dog, the character 
 and propensities of the animal for mischief may be considered in 
 mitigation of damages (e). 
 
 If a jury arrive at the conclusion that a defendant has come 
 dishonestly by a part of property which has been stolen, they are 
 warranted in findifag that he got possession of the whole. Thus, 
 where a diamond necklace worth 500^. had been stolen, and a portion 
 of the diamonds shortly after the robbery came into the defendant's 
 possession, and the latter gave contradictory and unsatisfactory 
 accounts as to the mode in which he became possessed of them, and 
 the owner sued and recovered a verdict for the fuU. value of the 
 necklace, it was held that the jury were justified in finding that 
 the whole necklace came into the defendant's hands (/). 
 
 The plaintiff is entitled, under a declaration properly framed, 
 to recover all that at the commencement of the suit he has lost 
 through the wrongful seizure of his goods, and it has even .been 
 held that the defendant cannot, in mitigation of damages, show 
 that after action brought he paid to the plaintiff the value of the 
 goods {g). The jury are not limited in assessing the damages to 
 the price or value of the article on the day of the conversion, but 
 may give the value at any subsequent time at their discretion, as 
 the plaintiff might have had a good opportunity of selling the goods 
 if they had not been detained Qi). If the defendant, acting hond 
 fide under the belief that he had acquired the lawful ownership of 
 the chattel, has proceeded to lay out money upon it, and improve 
 it, and increase its value, the plaintiff will not in all cases be 
 entitled to swell the damages by estimating them according to the 
 improved value of the article. " It may be," observes Maule, J., 
 " that the wrong-doer, who acquires no property in the thing he 
 converts, acquires no lien for what he expends upon it, and the 
 owner may bring an action for the detention or conversion of it ; 
 but it does not foUow that the owner is to recover the full value of 
 the thing in its improved state. The proper measure of damage is 
 the amount of pecuniary loss the plaintiff has sustained by the 
 conversion of the chattel, that is, what it was really worth at the 
 time of the conversion" (i). If at the time of the seizure the 
 
 (3) SdMotidson r. Niittaa, swpra. m^post p. 377. _ , r^ o. -o 
 
 (e) WelXs T. Head, 4 0. & P. 568. (h) Greening v. WiHevmon, 1 C, & P. 
 
 (f^ Mortimer v. Cradoch, 12 Law J., 626. 
 
 C P jgg"""^ y.'- , ^^ j^^ ^ Fawbmki, 13 0. B. 72p ; 22 
 
 '(^) JJttiirffe V. Ziafe, 6 Q. B. 178. But Law J., C. P. 206. 
 
376 TRESPASS AND CONVEESION. [CHAP. VII. 
 
 plaintiff was under an obligation to liave the goods sold, then, if 
 they have been fairly sold, the price realised at the sale may be 
 the fair measure of damages, if there has been nothing harsh or 
 oppressive in the' defendant's conduct,, or that of his agents (/); 
 but if at the time of tlie seizure the plaintiff was under no 
 obligation to part with his goods, but was in a position to retain 
 the dominion and use of them, he is at the very least entitled to be 
 placed in the condition he was in at the time his goods were taken 
 away from him, and to be compensated with such an amount of 
 money as will enable him to replace the goods (/<;). " It is, how- 
 ever," observes Alderson, B., "entirely a question for the jury, what 
 damages they will allow. Juries have not much compassion for 
 trespassers, and they are not bound to weigh in golden scales how 
 much injury a party has sustained by a trespass " (T). 
 
 If the act of conversion amounts to pound breach, the person 
 guilty of the wrong will be liable in damages to the landlord, and 
 also to the owner of the property for damages for the conversion. 
 " It might be difficult in such a case to ascertain the damages, but 
 they would not exceed in the whole the value of the chattels 
 distrained" (m). 
 
 Assessment of damages, where the plaintif has only a limMed or 
 doubtful interest in the goods. — ^Where the plaintiff is not the actual 
 owner, but is only a bailee or hirer of goods which have been 
 wrongfully taken out of his possession, he is entitled as against a 
 stranger to recover the entire value of the goods ; but if the action 
 is brought by the hirer or bailee against the owner of the goods, 
 the damages will be limited to the value of the plaintiff's interest 
 in them (n). A defendant who has wrongfully' deprived the 
 plaintiff of the possession of goods cannot avail himself of the 
 title of a third party in reduction of damages, but he may show that 
 he was himself the owner of the goods at the time of the conversion, 
 subject to some temporary or conditional right of ■possession on the 
 part of the plaintiff, with a view of limiting the datnages to the 
 value of the plaintiff's limited interest (o). If a man brings an 
 action for the conversion 'of a ship, and upon the evidence it 
 appears that he has but the sixteenth part of it, this wiQ go in 
 reduction of damages, as he has no right to recover the value of the 
 shares of the other part-owners {p). If it appears that the plaintiff 
 has merely been clothed with the possession and ostensible 
 ownership of the chattels, for the purpose of perpetrating a fraud 
 
 U) WkUmore v. Black, 13 M. & W. (n) ffeydon 61 Smith's case, 13 Co. 68. 
 
 509 J 14 Law J., Exoh. 19. Waters t„ Monarch, 5 Ell. & Bl. 880 ; 25 
 
 (A) Olasspool V. Young, 9 B. & C. 696 ; Law .J., Q. B. 102. 
 
 iHA.k R. 533. (0) BrUrky v. Kendall, 17 Q. B. 943. 
 
 (l) LocUey v. Pye, 8 M. &; W. 135. ( p) Bockwray v. Dickenson, Skin. 640. 
 
 {m) Turner t; Poi-d, 15 M. & W. 215. 
 
SECT. 3.] ACTIONS— MEASURE OF DAMAGES. 377 
 
 or defeating a distress, or if he has made a transfer of the chattels, 
 which he has treated at one period as valid and bond Jide, and at 
 another as merely colourable, so as to leave it doubtful what is his 
 real and bond fide interest in the property, the jury may, if they 
 please, give him merely nominal damages (q). 
 
 In cases between pawnor and pavmee, where the pawnee has by 
 an illegal dealing with the pledge determined the bailment, and the 
 pawnor has in consequence brought an action for the conversion of 
 the goods, the interest of the pawnee ought to be taken into 
 account, and if the pawnor did not intend to redeem the pledge, 
 only nominal damages are recoverable (r). 
 
 BarriMges for the conversion of bills and notes are calculated, in 
 general, according to the amount of principal and interest due upon 
 the bills or notes at the time of the demand and refusal to deliver 
 them up (s). But if a document, purporting to be a biU or note, 
 has been lost or accidentally destroyed, and the defendant is unable 
 to deliver it up, and can prove that it was not a genuine security, 
 and was of no value at all at the time of the conversion, nominal 
 damages only may be recoverable, if the plaintiff is entitled to 
 recover damages at all (t). If the security has been mutilated and 
 rendered valueless by the wrongful act of the defendant, the 
 plaintiff will be entitled to recover what it would have been 
 fairly worth to him had it continued a perfect and complete 
 instrument (u). 
 
 Of the damages recoverable, where the plaintiff has offered to return 
 the goods, or the defendant has received them back after the com- 
 mencement of the action. — If in the course of the cause the goods 
 have been returned, the plaintiff is still entitled to proceed for 
 further damages and his costs {x). "When the goods have been 
 returned and received unconditionally by the plaintiff, after the 
 commencement of the action, and no special damage is alleged in 
 the declaration, and the damage complained of is not necessarily 
 incidental to the wrongful taking of the property, nominal damages 
 only are recoverable. When substantial damages have been 
 recovered, notwithstanding the return of the goods after the 
 commencement of the action, there has been either an injury to 
 the property converted, or the damage has been the actual and 
 necessary consequence of the conversion ; as in the case of the 
 detention or conversion of a riding-horse, where the horse may have 
 been deteriorated by Ul-usage, or where the plaintiff could not get 
 
 Iq) Cameron v. Wynch, 2 C. & K. 264. (t) Mathew v. SherweU, 2 Taunt. 438. 
 
 Prinale v Taylor, 2 Taunt. 150. WiUs v. Wells, 8 ih. 267 ; 2 Moore, 254. 
 
 (r) Johnson v. Stear, 15 0. B., N. S. (u) M'Leod v. M'Ohie, 2 Sc. N. K. 604. 
 
 330- .33 Law J., C. P. 130 (diss. WU- (a:) Laugher v. BrefiU, 5 B.&Ald. 765; 
 
 Hams, J-.). ID.&E. 417. 
 
 («) Mercer y, Jones, 3 Campb. 477. 
 
378 TRESPASS AND COKVEESION. [CHAP. VII. 
 
 back his horse without paying certain charges for his keep (y), the 
 payment being a necessary consequence of the conversion. But 
 the plaintiff, although he has taken upon himself to accept the 
 goods without imposing any condition upon the defendant, has a 
 right to go on with the a,ction, and proceed to trial for the purpose 
 of recovering his costs (z). It is no ground for mitigation of 
 damages that very shortly after the conversion the defendant was 
 entitled to issue execution against the plaintiff, and did-subsequently 
 issue execution and seize and sell thereunder the very goods (which 
 had all along been in his possession) of which the conversion was 
 Complained of (a). ' 
 
 Damages, in the nature of interest, over and above the valw of the 
 goods. — By the 3 & 4 Wm. 4, c. 42, s. 29, it is enacted, that in aU 
 actions of trover or trespass de bonis asportatis, the jury, on the trial 
 of any issue, or any inquisition of damages, may, if they think fit, 
 give damages in the nature of interest, over and above the value of 
 the goods at the time of the conversion or seizure thereof 
 
 S]pecial damages, far exceeding the value of the goods, are 
 recoverable if specified and claimed in the declaration, and shown 
 to be the natural and necessary consequence of the wrongful act. 
 Thus, where the . plaintiff complained, not only that the defendant 
 took his goods, but that he did so under a false and unfounded 
 claim of right, and that the plaintiff was thereby much annoyed 
 and prejudiced in his business, and believed to be insolvent, and 
 that by means of the premises certain lodgers were induced to 
 believe that the plaintiff was in embarrassed circumstances, and 
 that the defendant was entitled to seize the goods for a debt,_and 
 left the house, it was held that the jury might give vindictive 
 damages for the injury, over and above the value of the goods 
 seized. (6). 
 
 Where a carpenter's tools have been detained or converted, and 
 the carpenter, by reason thereof, has lost a valuable job, or been 
 unable to earn his customary wages, damages far beyond the value 
 of the tools may be recovered (c). So if, by reason of the unlawful 
 detention of goods, the owner of them has been prevented from 
 fulfilling a contract, or reaping the benefit of a bargain he has 
 made, he is entitled to compensation for the special damage he has 
 sustained, although performance of the contract or bargain could 
 not have been enforced by compulsion of law {d). If, in an action 
 for the conversion of a horse, the plaintiff claims damages in 
 
 (2^) Syeds t. Hay, 3 Burr. 1364. (c) Bodley v. Reynolds, 8 Q. B. 779. 
 
 (z) Moon V. Haphael, 2 B. N. C. 314. (d) Waters v. Towers, 8 Exch. 401 ; 22 - 
 
 (a) Edmondson v. NuttaU, o?ite,pp. 374, Law J., Exch. 186. Wood v. Bell, 25 ib. 
 
 375. Q. B. 163. As to the necessity for giying 
 
 (6) Brewer t. Dew, 11 M. & W. 629 ; notice of such damage, see France v. 
 
 post, oh. 22. Qaudet, L K., 6 Q. B. 199. 
 
SECT. 3.] ACTIONS — MEASURE OF DAMAGES. 379 
 
 respect of his being obliged to hire other horses for his use, in 
 consequence of his being deprived of his own liorse, lie will be 
 entitled to recover the amount expended by him for horse-hire, 
 in addition to the value of his own horse at the time of the 
 conversion (e). A person who has wrongfully taken goods, and 
 handed them over to a third person, is, under certain circumstances, 
 bound to pay what it has cost the owner of the goods to get them 
 out of the possession of the person into whose hands they have 
 been wrongfully delivered (/). 
 
 Damages in actioTis for seizures under the Customs' Acts. — By 
 8 & 9 Vict. c. 87, s. 116, it is .enacted, that if any action shall be 
 commenced and brought to trial against any person on account of 
 the seizure of any vessel, boat, goods, &c., as forfeited under any 
 Act relating to the customs, wherein a verdict shall be given against 
 the defendant, if the court or judge before whom the suit shaU. have 
 been tried shall have certified on the record that there was a 
 probable cause for such seizure, then the plaintiff, besides the thing 
 seized, or the value thereof, shall not be entitled to above twopence 
 damages, nor to any costs of suit (g). 
 
 (e) Davis v. OsweU, 7 C. & P. 804. (g) And see further as to damages, 
 
 (/) Keene v. DUh, i Exch. 388. Pnt- post, cli. 22. 
 chett V. Boevey, X Cr. & M. 778. 
 
380 
 
 CHAPTEE VIII. 
 
 OF TEESPASSES AND INJURIES PEOM NEGLIGENCE— NEGLIGENT 
 MANAGEMENT OF CHATTELS. 
 
 Section I. — Of trespasses and injuries 
 from acts of negligence. — Negligence 
 and inevitable accident — Negligence 
 of carriers of passengers — When the 
 very occurrence of a railway accident 
 is prima facie proof of negligence — 
 Accidents at level crossings — Negligent 
 driving — Secret defects in carriages, 
 race-stands, &c. — Liability of the mas- 
 ter for the negligence of his servant — 
 Identification of the passenger with the 
 driver — Negligence of foot-passengers 
 in public thoroughfares — Negligent 
 - navigation of vessels — Collisions be- 
 tween foreign ships — ^Non-observance 
 of statutory -or Admiralty regulations 
 — Limitation of liability — Duty of 
 shipowner as to goods damaged — 
 Damage to owners of cargoes — Negli- 
 gence of masters and employers causing 
 injury to their servants — Injuries to 
 
 servants from tlie negligence of their 
 fellow-servants — Volunteers in dan- 
 gerous employments — Contributoiy 
 negligence on the part of the plaintiff 
 — Negligence on the part of skilled 
 workmen and professional men — Neg- 
 ligence of attorneys, barristers, sur- 
 veyors, bank managers, directors of 
 companies. 
 Section II. — Of acHons for negligence. — 
 Actions for compensating the families 
 of persons killed by negUgenoe — Pro- 
 ceedings in the Court of Admiralty — 
 Parties to be made plaintiffs and de- 
 fendants — Master and servant — Con- 
 tractor and sub-contractor — Pleadings, 
 defences,' and evidence — Damages re- 
 coverable — Where the plaintifi is in- 
 sured — Where the action is brought by 
 personal representatives. 
 
 SECTION I. 
 
 OF TEESPASSES AND INJURIES EEOM NEGLIGENCE — NEGLIGENT 
 MANAGEMENT OF CHATTELS. 
 
 negligence and inevitable accident. — No person may, as we have 
 seen, be excused of a trespass except it be adjudged to have been 
 committed entirely •without fault, or to have .been an inevitable 
 accident, or to have been occasioned by the negligence of the 
 plaintiff himself. " Looking into aU the eases from the year-book 
 in the 21 Hen. 7, down to the latest decision on the subject, I find 
 the principle to be," observes Grose, J., " that if the injury be done 
 by the act of the party himself at the time, or he be the immediate 
 cause of it, though it happen accidentally or by misfortune, yet he 
 is answerable " (a). Where to an action of trespass the defendant 
 pleaded that he was a soldier of ihe trained bands, and was skir- 
 
 (o) Leame v. Sray, 3 "East, 599, ante, p. 2. 
 
SECT. l.J NEGLIGENCE— INEVITABLE ACCIDENT. 381 
 
 mishing with muskets charged with powder for exercise in re 
 militari, and that in discharging his musket he accidentally and 
 unintentionally injured the plaintiff, it was held that the plea, 
 being a mere excuse, and no justification, afforded no answer to 
 the action (&). And where the defendant was uncocking his gun, 
 and the plaintiff was stopping to see it, and the gun went off and 
 wounded the plaintiff, it was held that the plaintiff might maintain 
 an action for the injury (c). So, where the defendant intrusted a 
 loaded gun to he carried hy an inexperienced servant girl, and the 
 girl pointed the gun in sport at the plaintiff, and drew the trigger, 
 and shot him in the eye, and blinded him, it was held that the 
 defendant was reponsible in damages Ibr the consequences of his 
 carelessness (d). And where the defendant gave the plaintiff a 
 carboy, .or large bottle of nitric acid, to carry, without informing 
 him of the dangerous nature of the acid, and the carboy burst, and 
 the acid inflicted dangerous wounds upon the plaintiff, and burnt 
 and destroyed his clothes, and disabled him, it was held that the 
 defendant was responsible in damages for the injury (e). But if 
 the injury has resulted from circumstances over which the defendant 
 had no control, he is not then answerable. This has been 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 (/) ; also where a horse, 
 naturally vicious, but not known to be so by the defendant who 
 was riding it, became restive and unmanageable, and ran upon 
 the foot pavement and knocked down and killed the plaintiff's 
 husband {g) ; and 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 (li). 
 
 If a horse, not known to be of a vicious disposition by the 
 
 rider, suddenly kicks out without provocation and injures a by- 
 
 . stander, the rider will not be responsible for the injury ; but it is 
 
 otherwise if the injury is caused by an incautious and dangerous 
 
 use of the spur (i). 
 
 By the civil law, all the losses and damages which result from 
 the act of another, whether through imprudence, rashness, ignorance, 
 or other faults, are to be made good by htm whose miprudence, or 
 other fault, caused the mischief; for it is a wrong that he hath 
 
 (h) Weaver Tr.Wa/rd,'3.oh.\ZL Dick- M^lf) TTaiemare v. iJo5ins<wi,lBing. 213; 
 enson v Watson, 2 Jones, 205.t'S'"'6f,<J'' 8 Moore, 63. 
 (c\ Underwood v. Ilewson, 1 Str. 596. , {g) Hammach v. White, 11 C. B., N. S. 
 
 (d) Dmm V. Ben, 5 M. & S. WS.-J^H''*' 588 ; 31 Law J., 0. P. 129. 
 
 (e) Farrant v. Barnes, 11 0. ,B.. N. S. {h) Gibbons v. Pepper. 1 Ld. Eaym. 38. 
 553 • 31 Law J., C.P. 137.ymiA.i, Uff- (i) North v. Smith, 10 C. B., N. S. 
 
382 NEGLIGENCE, ' [CHAP. VIII.' 
 
 done, although he had no intention to do harm. Thus he who 
 plays imprudently at a game in a place where there may be danger 
 to others passing by, is answerable for the harm he does (k). A 
 waggoner, or a mule-driver, who hath not strength or skill enough 
 to hold in a mettlesome horse, or an unruly mule, will be answer- 
 able for the damage caused thereby : for he ought not to have 
 undertaken what he had not skiU or strength enough to perform. 
 If, by overloading a horse or other beast, or by not avoiding a 
 dangerous path, or by some other neglect, he causes damage to 
 another, he will be answerable; and he who sustains the damage 
 may have his action against the driver, or agaiust the person who 
 employed him (I). 
 
 Negligence of carriers of passengers for hire. — Every carrier of 
 passengers for hire, whether he be or be not a common carrier 
 (post, ch. 10), is bound to exercise the greatest care and forethought 
 for securing the safety of his passengers, and is answerable for the 
 smallest negligence on his own part, or on the part of his servants 
 and agents (m), but' not for unforeseen accidents and misfortunes, 
 which care and vigilance could not have provided against or 
 prevented. He " does not warrant the absolute safety of his 
 passengers. His undertaking as to them goes no further than this, 
 that as far as human care and foresight can go, he will provide for 
 their safety." "When everything has been done that human 
 prudence can suggest, an accident may happen. The lights may 
 in a dark night be obscured by fog ; the horses frightened ; or the 
 coachman may be deceived by a sudden alteration in the position 
 of objects near the road by which he had been used to be directed 
 in former journeys ; and if, having exerted proper skill and care, he 
 from accident gets off the road, the proprietors are not answerable 
 for what happens from his doing so." But the breaking down or 
 overturning of a coach is primd facie proof of negligence on the part 
 of the driver, and he must rebut this presumption, if it be unfounded, 
 by showing that " the damage arose from what the law considers a 
 mere accident " {n). When the carriage is by railway, the railway 
 company is bound to keep the railway itself, in good travelling 
 order, and fit for use, and to provide roadworthy engines and 
 carriages, skiKul drivers and engineers, and aU things necessary for 
 the safe conveyance of such passengers ; and by the 31 & 32 Yict. 
 c. 119, s. 22, to provide in certain cases for means of communication 
 between the passengers and the guard. But the company is not 
 bound, at its peril, to provide a roadworthy carriage, and will not 
 
 (Tc) Domat, liv. 2, tit. 8, s. L (n) Crofts v. Waterhouge, 11 Moore, 
 
 (1) Ih. liv. 2, tit. 8, s. 2, § 5. 137 ; 3 Bing. 321. Sharp y. Grey, 2 M. 
 
 (m) Jackson y. ToUett, 2 Stark. 38. & Sc. 620 ; 9- Birg. 460. Harris y.Goa- 
 
 Dudley t. Smith, 1 Campb. 16P. tar, 1 C. & P. 637. 
 
SECT. 1.] OF CAKRIEES — RAILWAY COMPANIES. 383 
 
 be rftsponsible to a passenger, if the defect in the carriage is such 
 that it could neither he guarded against in the process of construc- 
 tion, nor discovered by subsequent examination (o). 
 
 If the driver of a railway-engine drives at a dangerous speed, or 
 from negligence or unskilfulness causes the train to be thrown off 
 the rails, or to come into collision with another train, the railway 
 company is responsible for all damages- and injuries that may have 
 been gustained by the passengers (p). But if a railway-train runs 
 off the line in consequence of the wilful and malicious act of a 
 stranger, who has placed a stone on the railway, then, as there is no 
 negligence on the part of the railway company, they are not 
 responsible for the consequences (q). A railway company will be 
 responsible for an injury sustained by a child between the ages of 
 three and twelve, travelling with its mother, although no separate 
 fare was paid for the child, at all events in the absence of fraud on 
 the part of the mother (r). If the train overshoot, or stop short of, 
 the platform, and a passenger is injured while jumping from the 
 carriage to the ground, the company is not responsible unless the 
 passenger first requested that the train might be backed into the 
 station (s); or was invited by the company's servants to alight 
 there (t). But it would seem that the stopping of the train at a 
 place, which a passenger would naturally suppose to be the platform, 
 is a sufficient invitation for this purpose (w). The mere calling out 
 by a porter of the name of a station, however, is not such an invi- ' 
 tation, unless the train stops at a fit place for getting out. It will not, 
 for instance, justify a passenger in getting out while the carriage 
 in which he is riding is in a tunnel (v). "Where a passenger, in 
 getting into a railway carriage, put his hand on the open door 
 to assist him in getting in, and the guard, without any previous 
 notice (w), shut the door, and so crushed the passenger's finger, 
 the railway company were held responsible (x). 
 
 When the very occurrence of a railway accident is primd facie 
 proof of negligence. — ^When both the railway itself, and the carriages 
 iu which the passengers are conveyed, are under the exclusive con- 
 trol of the company carrying the passengers, the very fact of a 
 
 lo) Readhead v. Midland Bail. Co., L. (i) Foy- v. Land. Bright. & South Coast 
 
 B., 2 Q. B. 412 ; S. C. (Exch. Oh.), Ibid. Bwy., 18 C. B., N. S. 225. 
 4 Q B 379 • («) Cockle v. Land. & South-East. Bwy., 
 
 (p) CoUett V. Land, ofc N.- W. BaU. Co., L. E., 5 C. P. 457 (Keating and Montague 
 
 16 Q. B. 984. Skinner v. Zond. Br. die. Smith, "JJ., diss.). 
 
 Baal. Co., 5 Exch. 787. W Bridges t. Noi-th London Bwy., L. 
 
 (g) Latch v. Bvmner Bail. Co., 27 Law R., 6 Q. B. 377. 
 
 J. Exch. 155. ('"') S^^ Bichardson v. Metropolitan 
 
 '(r) Austin v. Ot. West. Bwy. Co., L. R., Bwy., L. K., 3 C. P. 374, n. 
 
 2 Q B 442 (") Bordham v. Brighton Bwy. Co., L. 
 
 (s) Siner'y. Ot. West. Bwy., L. R., 3 R., 3 C. P. 368; 4 Ibid. 619; 38 L. J., 
 
 Exch. 150 ; 4 Ibid. Ui ; 38 Law J., C. P. 324. 
 Exch. 67. 
 
384 NEGLIGENCE. [CHAP. VIII. 
 
 train's running off the line has been held to be primd facie proof of 
 negligence on the part, of such company, or its officers, and throws 
 upon them the burthen of explaining how it happened, and of 
 showing that it occurred without any fault or neglect of duty on 
 their part (y). And it is not sufficient' to show that other com- 
 panies had running powers over their line, without showing 
 affirmatively that it was through the negligence of such other com- 
 panies that the accident occurred (z). But if the accident is primd 
 facie caused by the negligence of some third person, for whom the 
 defendants are not responsible, e.g., a contractor engaged in placing 
 iron girders over the defendant's line for some third person, it must 
 be shown that the accident resulted from, or might not have' 
 occurred, but for, the defendant's omitting to take some precaution 
 usually adopted in such cases (a). If it appears that the train went 
 off the rails when travelling at a moderate speed, and that the 
 wheels of the carriages and engine were properly constructed, and 
 the railway itself was properly made and in good order, and that 
 the departure of the engine and carriages from the rails might have 
 been occasioned by the malicious trespass of a stranger (avie, 
 p. 383), there will be nothing to establish even a. primd facie case 
 of negligence against the company (6). But if the railway bridges 
 or viaducts have not been properly constructed, or have not been 
 carefully maintained and repaired, so as to enable them to resist 
 • the violence of storms and floods which may be expected occasionally 
 to occur, and injuries are thereby caused to passengers (c), the rail- 
 way company wiU be responsible in damages, although they may 
 have employed comp'etent engineers and workmen, and have used 
 the best materials in the work (d). 
 
 Accidents at level crossings. — "When a railway crosses a turnpike- 
 road on a level adjoining to a station, the trains must slacken their 
 speed before arriving at the turnpike-road, and cannot, unless there 
 is some special provision to the contrary in the particular Act under 
 which the company is incorporated, cross the same at any greater 
 rate of speed than four miles an hour (e). And even where the 
 crossing is not near a station, but there are circumstances making 
 that particular crossing exceptionally dangerous, the mere occur- 
 rence of an accident to afoot passenger crossing the line, is evidence 
 
 (y) Oarpne v. Zand. <fe Br. Rail. Co., (a) Daniel v. Metropolitan, Rwy., L. E., 
 
 5 Q. B. 761. Latch t. Sumner Sail. Co., 3 C. P. 216 ; 3 Ibid. 591 ; 5 Engl. & Ir. 
 
 mpra ; Dawson v. Manch. (Sec. Sail. Co., App. 45. 
 
 5 Law T. E., N. S. 682. See Scott v. (6) Bird v. Gt. Northern Smi. Co., 28 
 
 Land. Dock Co., 34 Law J., Exch. 17 ; ib. Law J., Bxch. 3. 
 
 220. As to interrogatories in cases of (c) Gt. West. t&c. of Canada y. Fawcetf, 
 
 collision, i&eBeckervaisey. Gt. West. Svyy., 1 Moore's P. C, N. S. 101. 
 
 L. K., 6 C. P. 36. (d) Qrote v. Chester & Holyhead Rail. 
 
 (s) Aylea v. South-East. Rwy., L. K., 3 Co., 2 Exch. 255. 
 
 Excli. 146. (e) 8 & 9 Vict. c. 20, s. 48. 
 
SECT. l.J EAILWAY OE COACH ACCIDENTS. 385 
 
 to go to the jury of negligence (/). Primd facie, however, a foot- 
 passenger crossing a railway on the level, is bound to look to his 
 own safety {g) ; and there is no general duty on railway companies 
 to place watchmen at public footways, or accommodation roads, 
 crossing the railway on a level, to warn persons using the footway 
 or road (A). Where, therefore, the view of the line from one of the 
 gates was obstructed by a pier, but from the level of the 
 line there was a clear view of 300 yards each way, and a person, 
 crossing the line immediately after a train had passed, was killed 
 by a train coming the other way, it was held that there was on 
 evidence of negligence against the railway company (i). Where, 
 however, the plaintiff took the precaution of looking up and down 
 the line, but owing, to the fogginess of the morning could not see 
 an engine coming, and the engine man never whistled, it was held 
 that there was evidence of negligence (/). If there is a public 
 carriage way over the railway, alongside of the footway, and the 
 servant in charge of the carriage gates has left them open, this is 
 so far equivalent to a representation by the railway company that 
 all is safe, as to amoimt to evidence of negligence in case the foot- 
 passenger is injured in crossing the line (h). Where one of the 
 public carriage gates at a level crossing is also the only exit out 
 of a private yard across the railway, and the driver of a cart coming 
 out of the private yard asks the railway gatekeeper if he may cross, 
 and is answered in the affirmative, the company will be responsible 
 if the cart is run into by a train (Z). 
 
 Injuries from secret defects in carriages or race-stands. — A coach 
 with a defective axle-tree is not roadworthy, and a coach-proprietor 
 who sends out a coach with such a defect is responsible for the con- 
 sequences to a passenger, whether he does or does not know of the 
 defect at the time the coach starts (m), provided the defect could 
 have been discovered on due examination, or could have been 
 guarded against in the manufacture (n). A coach which is over- 
 loaded is not roadworthy, and if it upsets, in consequence of its being 
 top-heavy,, the coachman and coach-proprietor will be responsible 
 in damages (o). 
 
 (/) BUhee t. Land. & Brightm Bwy., (0 Lunt \. L. <SsN. W. Rwy., L. R., 1 
 
 ^^fomefion'v. L. & N. W. Rwy., L. R, (m) SMrp v. Qrey, 9 Bing. 459 ; 2 M. 
 
 „ p p gg]^ & Sc. 623 ; Gaselee,, J., observing that 
 
 (hS blif T. Midland Hwy., L. E., 5 Q. there was a material distmotion between 
 
 r, 2Kg tliS't case and the case of Christie v. 
 
 'if) Stuhlev T L. & N. W. Swy., L. E., Griffgs, 2 Campb. 79. See Grote v. dies- 
 
 lExch 13 ter Ji Holyhead Bail. Co., 2 F.xch. 255. 
 
 li) janies v Ot. West. Rwy., L. B., 2 (m) Readhead v. Midland Rwy., ante, 
 
 C P 634 n • 36 Law J.. C. P. 255, n. p. 383. 
 
 (V\ fif^mlev'Tr L,B.,d: Sovih Coast Rwy., (o) /sj'oeZ v. aorfe, 4 Esp. 259. Aston 
 
 I, K 1 Exch 21. Wanless v. North- v. Heaven, 2 Esp. 535. 
 East. 'Rwy., L, E., 6 Q. B. 481. 
 
386 NEGLIGENT DRIVING, [CHAP. VIII. 
 
 The same principle applies to persons who cause stands or 
 buildiags to be erected to enable the public to view sights, such as 
 horse-races; and the person who causes such a building to be 
 erected, and receives the money for admission, wiU be responsible 
 for the negligence of the contractor, although he was a competent 
 person to be employed for such a purpose, and although the defect 
 in the building or stand was not one capable of being ascertained 
 by inspection ; for the law in such a case implies a warranty that 
 due care has been used in the construction of the stand not only 
 by the defendant, but by those whom he employed to erect it, 
 and that it was reasonably fit for the purpose for which it was 
 erected (p). 
 
 Collisions in public thoroughfares — Negligent driving.' — ^A person 
 driving a carriage is not bound to keep on the regular side of the 
 road ; 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 (g). A foot-passenger is not bound to 
 keep on the foot-pavement ; he has a right to walk in the carriage- 
 way, and is entitled to the exercise of reasonable care on the part 
 of persons driving carriages along it (f). " It is the duty of persons 
 who are driving over a crossing for foot-passengers to drive slowly, 
 cautiously, and carefully; but it, is also the duty of a foot-pas- 
 senger to use due care and caution in going upon a crossing, so as 
 hot recklessly to get among the carriages " ($). If a person driving 
 his own carriage takes another person into it as a passenger, such 
 person cannot be subjected to an action in case of any misconduct 
 in the driving by the proprietor of the carriage, as he had no care 
 nor concern with the carriage ; nor, in case of an accident happening, 
 has he any right of action against the proprietor, except in case of 
 gross negligence (t) ; but if two persons were jointly concerned in 
 the carriage, as if both had hired it together, both will be answer- 
 able for any accident arising from the misconduct of either in the 
 driving of the carriage whilst it was so under their joint care (u). It 
 is not enough to give warning to a person to get out pf the way 
 of a carriage to exonerate parties from responsibility for care- 
 lessness (v). 
 
 Liability of the -master for the, negligence of his servant. — What- 
 ever a servant does in order to give effect to his master's will may 
 be treated, as we have seen, as the act of the master (w). But if 
 
 (p) Frcmcis v. CochreU, L. E., 5 Q. B. («) Moffatt v. Batemm, L. R., 3 P. 0. 
 
 184 ; lUd. 601. Ca. 115. 
 
 (g) Plmchwell v. Wilson, 5 0. & P. 375. ' (u) Barney v. Chamberlain, i Bsp. 229. 
 
 (r) Boss T. lAtton, ib. 407. (v) WooUey v. ScoveU, 3 M. & Ey. 105. 
 
 (s) Pollock, C.B., Williams v. Sicha/rds, (w) Ante, p. 23. Alderson, B., Hvtch- 
 
 3 C. & K. 82. Erie, C. J., Cotton v. Wood, inson v. Yvrh it Newcastle Rwy., 5 Exoh. 
 
 8 C. B., N. S. 571. 350. 
 
SECT. l.J BY SERVANTS — LIABILITY OF MASTEE. 387 
 
 my servant, without my knowledge, wrongfully takes my carriage, 
 or my horse, for his own purposes, and drives against another per- 
 son's carriage, I shall not be responsible for the injury ; for when 
 the servant takes the master's carriage or horse, and uses it under 
 such circumstances, he gains a special property for the time being 
 in the chattel, and makes it for the time, and for the particular 
 wrongful purpose, his own (x). Where the defendant's coachman 
 was driving the defendant's carriage through a narrow street which 
 was blocked up by a luggage-van, containing goods of the plaintiff, 
 which were being unladen, and taken into the plaintiff's house, and 
 behind the van stood the plaintiff's gig, and the defendant's coach- 
 man (there not being room for the carriage to pass) got off his box 
 and laid hold of the van-horse's head and moved the van, and 
 caused a large packing-case to tumble on the shafts of the gig, and 
 break them, it was held that the defendant was not liable for the 
 injury, the servant at the time not being in the execution of his 
 master's orders, or doing his master's work (y). 
 
 But whenever the master has intrusted the servant with the . 
 control of his carriage or horses, it is no answer that the servant 
 disobeyed his master's orders, and did what he had no business 
 to do, or went where he had no business to go. If the servant, 
 driving his master's carriage, on his master's business, disobeys the 
 express instructions of the latter, and wilfully or maliciously does 
 what he has been ordered not to do, or makes a ddtour to caU on a 
 friend, or to gratify some purpose of his own, and carelessly drives 
 against another vehicle, the master will nevertheless be answerable 
 for the injury ; but if the servant was going on a frolic of his own, 
 without being at all on his master's business, then the master will 
 not be liable (2). ■ 
 
 If an omnibus conductor uses unnecessary violence in expelling 
 a drunken passenger from an omnibus, the proprietor of the omnibus 
 wlU, as we have seen, be responsible in damages for the misconduct 
 of his servant (a). 
 
 Liabilities of owners of carriages let to hire who select and send 
 their own coachmen. — If carriages and horses are let out to hire by 
 the day, week, month, or job, and the driver is selected and 
 appointed by the owner of the carriage, the latter is responsible for 
 all injuries resulting from the negligent and careless driving of the 
 vehicle, although the carriage may be in the possession and under 
 the control of the hirer (&). But if the latter drives himself, or 
 
 (x) M'Manus v. CHckelt, 1 East, 106 ; anU, p. 25. Joel v. Morrison, 6 C. & P. 
 
 2 EoU. Abr. 553 ; ante, p. 23. Skath v. 503 MitcheU v. OrassweUer, 13 C. B. 237. 
 
 Wilson, 9 C. & P. 607; qualified by Sey- Storey v. Ashton, L. E., 4 Q.^B. 476 ; 38 
 
 mour V. Greenwood, ante, p. 25. L. J., Q. B. 223. 
 
 (v) iamb T. Pcdlc, 9 C. & P. 631. (a) Seymour r. Greenwood, ante, p. 25. 
 
 (s) Lmpus T. Lond. Gen. Oimibus Co., (5) Laugher v. Pointer, 5 B. & 0. 572 ; 
 
 2 
 
388 NEGLIGENT DRIVING. [CIIAP. VIII. 
 
 appoints the coachmau and furnishes the horses, the owner of the 
 carriage cannot of course be made responsible for the negligence or 
 want of skill of the coachman (c). Two old ladies, being possessed 
 of a carriage of their own, were furnished by a job-master with a 
 pair of horses and a driver by the day, or drive. They gave the 
 driver a gratuity for each day's drive, provided him with a livery- 
 hat and coat, which were kept in their house, and after he had 
 driven them constantly for three years, and was taking off his 
 livery in their hall, the horses started off with their carriage, and 
 inflicted an injury upon the plaintiff. It was held that the defen- 
 dants were not responsible, as the coachman was not their servant, 
 but the servant of the job-master (d). But if any directions are 
 given by the hirer of the horses to the driver or postillion to break 
 through a' line of carriages, or to do any unusual, improper, or 
 aggressive act, or if he interferes so as to take the actual manage- 
 ment of the horses into his own hands, he is responsible for any 
 damage done by the driver whilst carrying out the directions 
 given (e). " It is undoubtedly true," observes Parke, B., " that 
 there may be special circumstances which may render the hirer of 
 job-horses and servants responsible for the neglect of a servant, 
 though not liable by virtue of the general relation of master and 
 servant. He may become so by his own conduct, as by taking the 
 actual management of the horses, or ordering the servant to drive 
 in a particular manner, which occasions the damage complained 
 
 of"(/). 
 
 The servant himself, by whose negligence or want of skill the 
 accident has occurred, cannot defend himself against the claim of a 
 third person by setting up that he was acting under the orders of 
 his master, and that the act complained of was his master's act, 
 and that the master alone is responsible (g). 
 
 Mobilities of iorrowers of carriages for the negligence of their 
 drivers. — ^A person who has borrowed a horse and chaise for his 
 own use and enjoyment, and who rides about in it, driven by a 
 friend, whom he allows to drive, is responsible for the negligence of 
 the driver, on a declaration charging that he was possessed of, and 
 driving, the horse and chaise, and that the injury was occasioned 
 by his negligent driving (h). 
 
 Identification of the passenger with his driver. — ^When a collision 
 between two carriages has been caused by negligent driving on both 
 
 8 D. & E. 556. Smith v. Lawrence, 2 M. (e) M'LaughUn r. Pryor, i Sc. N. R. 
 
 & Ey. 2. SammeU v. Wright, 5 Esp. 262. 666. 
 
 Dean v. Branthwaite, ib. S6. (/) Quarmam t. Burnett, 6 M. & W. 
 
 (c) Croft y. Alison, 4 B. & Aid. 590. 499. 
 
 Sail v. Pickard, 3 Campb. 187. (g) Alderaon, B., in BuUhinson v. York 
 
 (d) Quarman v. Bwrnett, 6 M. & W. i- Newcastle Mwy., 5 Exeh. 350. 
 
 507. LaugJier v. Pointer, 5 B. & C. 547. {h) Wheatley t. PatricJc, 2 M. & W. 
 
 650. 
 
SECT. l.J COLLISIONS IN PUBLIC HIGHWAYS. 389 
 
 Sides, neither party can recover damages from the other (post, 
 p. 400) ; and it has been held that every passenger who has 
 selected the particular conveyance by which he travels is so far 
 identified with the driver or director of its movements, that if any 
 • wjury is sustained by him from collision with a rival vehicle, 
 through the joiat negligence of his own driver and that of the 
 driver of the rival conveyance, precluding the former from main- 
 taining an action against the latter, the passenger is himself equally 
 precluded, and his only remedy is against his own driver, or the 
 employer of the latter (■i). But "it seems highly unreasonable 
 that each set of passengers should, by a fiction, be identified with 
 the coachman who drove them, so as to be restricted for remedy to 
 actions against their own driver, or his employer. Why both the 
 wrong-doers should not be considered liable to a person free from 
 aU blame, not answerable for the acts of either of them, and whom 
 they have both injured, is a question which seems to deserve more 
 consideration than it has. received." (Jc). Where the drivers of two 
 rival omnibuses were competing for passengers, the one endeavour- 
 ing to get before the other, and both driving at great speed, and in 
 trying to avoid a cart which got in their way, the wheel of the 
 defendant's omnibus came in contact with the projecting step of 
 the omnibus on which the plaintiff was riding, and caused it to 
 swing against a lamp-post, and the plaintiff was thrown off and 
 injured, it was held that he was not disentitled to recover damages 
 from the proprietor of the rival omnibus, by reason of misconduct 
 on the part of his own driver (/). 
 
 Negligence of servants in breaJdng-in and training horses. — In 
 an action on the case brought against a master and his servant, the 
 plaintiff set forth that the defendants brought a coach with two 
 ungovernable horses into Lincoln's Inn Fields, where people were 
 always going to and fro upon their business, and there " improvid^ 
 et absque debits, consideratione ineptitudinis loci," drove them to 
 make them tractable and fit for a coach, and that the horses, being 
 unmanageable, ran tipon and injured the plaintiff; and it was 
 urged that the master, being absent, the action was not maintain- 
 able against him, that no knowledge of the horses being unruly, 
 nor any negligence was alleged, but judgment was given for the 
 plaintiff (m). 
 
 Collisions in piMic thoroughfares. — The degree of care to be 
 exercised by foot-passengers in a public thoroughfare to prevent 
 collisions with others, depends in a great degree upon- the injury that 
 
 (t) TJioroffood r. Bryan, 8 0. B. 131. Imd v. Chaplin, ib. 247. And see the 
 
 ilc) Note to Aslihy v. White, 1 Smith's remarks of Dr. Lushington, The Milan, 
 
 L. 0., 6th ed. 227. 31 Law J., Adm. 112. 
 
 (?) Rirjhy V. Heioitt, 5 Exch. 240. G'l-een- (m) Michael y. Akstree, 2 Lev. 173. 
 
390 NEGLIGENT NAVIGATION. [OHAP VIII. 
 
 will be likely to result to others from their want of care. Thus a 
 man who traverses a crowded thoroughfare with edged tools, or bars 
 of iron, must take especial care that he does, not cut or bruise others 
 with the things he carries. Such a person would be bound to keep 
 abetter look-out than the man who merely carried an umbrella; 
 and the person who carried an umbrella would be bound to take 
 more care in walkiag with it than a person who had nothing at all 
 in his hands. 
 
 Collisions between vessels — Pompulsory pilotage. — If a shipowner 
 unnecessarily delays mooring his vessel until night comes on, and 
 darkness prevents him from distinguishing objects, he will be 
 responsible in damages if he comes into collision with any other 
 ■vessel, which collision could have been avoided if it had been day- 
 light (n). In every case of collision it is the duty of each master 
 to give to the other the name of his vessel, her port of registry, or 
 the place to which she belongs, and the port from which and to 
 which she is bound (o). 
 
 Section 388 of the Merchant Shipping Act, 17&18 Vict. c. 104, 
 protects the owners or masters of a ship from liability for loss 
 or damage occasioned by the fault or incapacity of any qualified 
 pilot acting in charge of such ship within any district where the 
 employment of the pilot is made compulsory by law (p). If, 
 therefore, a ship, compulsorily in charge of a pilot, is being towed 
 by a steam-tug, and by the negligence of the steam-tug is towed 
 across and brought into collision Avith another vessel, the owner of 
 the former vessel is not responsible, if by giving proper orders the 
 pilot coidd have avoided the collision {q), unless there was negli- 
 gence on his part in the selection of the tug in the first instance, by 
 which the collision was wholly or in part occasioned (r). And this 
 section protects the owners or masters from responsibility for 
 injuries done within the limits of the Thames Conservancy Act 
 1 857 (s): It will not, however, absolve the owner from responsi- 
 bility for the neglect of the master to keep a good look out, if such 
 
 (li) The Egyptian, 1 Moore, P. C. C, P. C. Ca. 525.) The Mm-ia, L. B., 1 
 
 N. S. 373. Adm. & Eccl. 358, as to the port of Hull, 
 
 (o) 84 & 35 Vict. c. 110, s. 9. > MoMgues Y. Melhuisk, 10 Exoh. 110, as 
 
 {p) The Schwalbe, 14 Moore, P. C. C. to the port of Liverpool. General Steam 
 
 241. Tlie AnnapoUs, 1 Losla. 295. The Na/dgalion Co. y. British & Colonial 
 
 Peerless, 30 Law J., Adm. 89. See Eos- Steam Namgatioli Co., L. E., 3 Exch. 330; 
 
 sach V. Gray, 34 Law J., M. C. 209, as to 38 Law J., Exch. 97, as to the limits of 
 
 when an English or Scotch pilot is neces- the port of London, 
 
 sary. The Tyne Improvement Commis- (q) The Energy, L. B., 3 Adm. & Eccl. 
 
 sioners v. General Steam Namgation Co., 48. 
 
 L. B., 2 Q. B. 65, as to the port of New- {r) Marshall v. Moram, L. E., 3 P. C. 
 
 castle. The Banma, L. B,, 1 Adm. & Ca. 205. 
 
 Eccl. 283, as to ships (not British) coming (j) Thames Conservators t. EaU, L. K., 
 
 up the North Channel, and as to who is a 3 C. P. 415. See the Thames Conser- 
 
 passenger within s. 354 of the Merchant vancy Act, 1864, "27 & 28 Vict. e. 113, 
 
 Shipping Act. (See on the latter point, and the Thames Navigation Act, 29 & 30 
 
 The Lion, L. E., 2 Adm. & Eccl. 102 ; 2 Vict. c. 89. 
 
SECT. 1.] COMPULSOEY PILOTAGE. 391 
 
 neglect conduces to the collision. It is the duty of the pilot to 
 attend to the navigation, and of the master to keep a good look- 
 out (f). If a pilot has been taken on hoard in pursuance of an Act 
 of Parliament, rendering such employment compulsory, and is in 
 fact in charge of the ship at the time of the accident, and the 
 accident occurs through his negligence, the shipowner is absolved 
 from liability under the above section, even though, by reason of 
 an exception in the Act, such employment ceased to be compulsory 
 shortly before the accident occurred (u). But when the employ- 
 ment of the pilot has fairly ceased, the responsibility of the ship- 
 owner recommences (v). And if the employment of the pilot is 
 not compulsory, the shipowner, of course, remains liable for his 
 negligence (w). 
 
 The above Act and the Merchant Shipping Act, 1862 (25 & 26 
 Vict. c. 63, s. 54), regulate the extent of the liability of shipowners 
 and owners of shares ia sea-going ships where, without any actual 
 fault or privity on their parts, any loss of life or personal injury 
 is caused to any person being carried in such ship ; also, where any 
 damage or loss is caused to any goods, merchandise, or other things 
 whatsoever on board any such ship ; also, where any loss of life or 
 personal injury is, by reason of the improper navigation of such 
 sea-going ship, caused to any person carried in any other ship or 
 boat, or is caused to any other ship or boat, or to any goods, 
 merchandise, or other things whatsoever on board any other ship 
 or boat (x). The cargo laden on board ship is not liable, like the 
 ship itself, to make good the damage (y) ; but the freight earned 
 may be (z). 
 
 In case of loss of life, or personal injury, the Board of Trade 
 may cause juries to be summoned to assess compensation (ss. 507, , 
 508), of a very limited character. Provision is made (s. 510) for 
 the application and distribution of these damages to the parties 
 entitled to them, and if they are dissatisfied with the amount they 
 may, on procuring the amount thereof to be refunded, bring an 
 action for the recovery of damages under various discouraging 
 limitations and restrictions. Nothing, however, in the Act is to 
 lessen or take away any liability to which any master or seaman, 
 
 (t) The lona, L. K., 1 P. C. Ca. 426. ascertaining the liability of the defen- 
 
 The Vdaggue^, Ibid. 494. The Mirma, dants for the several sorts of damage, 'see 
 
 li. E., 2 Adm. & Ecol. 97. The Oalahar, Nixon v. Eoherts, 1 Johns. & Hem. 742— 
 
 X,. K., 2 P. 0. Ca. 238. 748; 30 Law. J., Ch. 844. GlahoTm v. Bar- 
 
 (u) General Steam Ncmgation Co. v. Jeer, L. K., 2 Eq, Ca. 598 -,3.0.1 Ch. 
 
 British & Colonial Steam Navigation, Co., App. 223. See as to interest, upon the 
 
 I/. E., 3 Exch. 330 ; 38 L. J., Exoh. 97. damage from the date of the collision, 
 
 («) The Woburn Abbey, 38 Law J., The Northvmbriai L. E., 3 Adm. & 
 
 AA-m. &. Bocl. 28. Bocl. 6. 
 
 (w) The Lion, 38 L. J., Adm. 51 ; L. (y) The V-ictor, 1 Lush. 72. 
 
 K., 2 Adm. & BccL 102 ; 2 P. C. C. 525. (z) The Orpheus, L. E., 3 Adm. & Eccl. 
 
 (a) As to the method to be adopted in 308. 
 
392 NEGLIGENT NAVIGATION. [CHAP. VIII. 
 
 being also owner, or part owner, of the ship to which he belongs, 
 is subject in his capacity of master or seaman (s. 516). 
 
 Proceedings in rem, in the Admiralty Court are no bar to pro- 
 ceedings elsewhere in personam ; such proceedings being for the 
 purpose of enforcing a marine lien. If, therefore, the person 
 injured has sustained damage beyond what the lien realises, he 
 may recover it by suing the person guilty of the negligence at 
 common law (a). The Admiralty Courts Act, 1861 (24 Vict. c. 10), 
 enacts by s. 7, that the Court of Admiralty " shall have jurisdiction 
 over any claim for damage done by any ship," and it has been held 
 by the Privy Council that the effect of Lord Campbell's Act, 9 & 
 10 Vict. c. 93, in conjunction with the above provision, is to give 
 a new right to the representatives of a person killed in a collision 
 between two vessels, enforceable against the ship which was in 
 fault in the Oov/rt of Admiralty, as well as against the persons 
 guilty of negligence in a court of common law (6). But the 
 Court of Queen's Bench has recently dissented from these decisions, 
 and has prohibited the prosecution of such an action in the Court 
 of Admiralty (c). 
 
 Collisions with foreign ships. — The regulations for preventing 
 collisions contained in 25 & 26 Vict.' c. 63, are expressly extended 
 (ss. 57 — 64) to foreign ships navigating' within British jurisdiction, 
 and may be extended to the high seas by consent of foreign 
 countries in the manner therein mentioned {d). If a foreign 
 shipowner sues a British shipowner in the Court of Admiralty 
 here for a collision occurring in foreign waters, and the defendant 
 pleads that by the foreign law pilotage was compulsory in the 
 place where the collision occurred, and that the damage was 
 caused by the pilot's negligence, the plaintiff cannot reply, that 
 by the foreign law the defendant continued liable for, the damage; 
 for, in a case of tort, the municipal law of a foreign country 
 cannot be invoked against the admitted principles and practice of 
 our own (e). 
 
 Non-observance of statutory or Admiralty regulations. — Under 
 the Merchant Shipping Acts, 17 & 18 Vict. c. 104, ss. 295—299, 
 and 25 & 26 Vict. c. 63, s. 25, et seq., and Sched. Table C, regulations 
 are to be made by the Admiralty for the exhibition by steam- 
 
 (a) Ndson T. Couch, 33 Law J., C. P. Eool. 466, where the claim was by an 
 
 46. As to proceeflings against the ship, infant en ventre sa mere. 
 
 see OJi/rhff v. BriscaU, L. 1?., 1 P. C. Ca. (c) Smith v. JBrown, L. E., 6 Q. B. 729, 
 
 231. per Cookburn, 0. J., and Hannen, J., dub. 
 
 (6) The GuUfaxe, 2 Adm. & Eccl. 325; Blackburn, J. 
 
 38 L. J. Adm. 12. The Beta, L. E., 2 P. {d) See The Amalia, Br. & L. 151. 
 
 C. 0. 447 ; 38 L. J. Adm. 50. The Ex- (e) The BaUey, L. R., 2 Adm. & Eccl. 
 
 ploi-e^; L. 11., 3 Adm. & Eccl. 289, where 3 ; 2 P. 0. Ca. 193. See The Mali iDo, 
 
 the person killed was a foreig'nei'. The L. R., 2 Adm. & Eccl. 856. 
 George and Riclwrd, L. R., 3 Adm. & 
 
SECT. 1.] NON-OBSERVANCE OE ADMIEALTY EEGULATIONS. 393 
 
 boats aud sailing-vessels of lights at night in such places and 
 under such circumstances as the Admiralty think fit, and certain 
 rules are required to be observed by vessels passing each other (/) ; 
 and it is enacted, that if a collision between vessels appears to 
 have been occasioned by, or -would not have happened but for, the 
 non-observance of the Admiralty or statutory rules, the vessel by 
 which any rule has been infringed shall (s. 29) be deemed to be in 
 fault {g), unless it appears to the court that the circumstances 
 made a departure from the regulations necessary — i.e., in order to 
 avoid immediate danger — and that the course adopted by the 
 parties so departing from the regulations was reasonably calculated 
 to avoid a collision (A) ; and in case of damage to person or property 
 from non-observance of any rule, the same shall be deemed to 
 have been occasioned by the wilful default of the person in charge 
 of the deck of the vessel, unless it appears to the court that the 
 circumstances made a departure from the regulations necessary (z). 
 
 The old rule of the Admiralty Court, therefore, that if the 
 owner of one ship brings an action against the owner of another 
 ship for damage by collision, and both vessels be to blame, the 
 damage shall be divided, has, to a certain extent, been superseded 
 by the provisions of this statute (/). But the owner on board a 
 ship that has violated the provisions of this statute, and so 
 contributed to the collision, is not prohibited by the Merchant 
 Shipping Act from recovering compensation, in accordance with 
 the old rule of the Admiralty, to the extent of a moiety of his 
 loss (K). 
 
 Notwithstanding this statute, and the Admiralty regulations 
 founded thereon, persons, in navigating their vessels, are still 
 bound to keep a good look-out, just as they were before these 
 regulations were made ; and if it could clearly be made out that a 
 vessel, having no light, had been run down by another vessel, from 
 sheer carelessness and negligence in not keeping a good look-out, 
 the owners of the former vessel would have a right to compensation 
 from the latter {!). Every vessel, whether close-hauled or at anchor, 
 is bound to show a light (m), and if, in consequence of a vessel, 
 which is lying across the channel leading into the harbour, not 
 exhibiting a light, another vessel, to avoid a collision with her, runs 
 
 if) General Steam, Navigation Co. v. (i) See The Concordia and The Spring, 
 
 L. B., 3 P. C. Ca. ii. L. E., 1 Adm. Ca. 93, "" 
 
 (a) Dowdl T. Oen. St. Nam. Co., 5 Ell. (;) Lawson r. Carr, 10 Moore, P. 0. C. 
 
 & Bl. 195 ; 26 Law J., Q. B. 59. The 162. 
 
 James, 1 Swabey, 60. Qrill v. Iron Screw (h) The Milan, 31 Law ,T., Adm. 105. 
 
 CoUier Co., h. R., 1 0. P. 600 ; 3 Tbid. (l) Morrison v. Qen. Steam Nav. Co., 8 
 
 476 The Esk, L. K., 2 Adm. & Bool. Bxoh. 738. See Intmn v. Seek, L. E., 2 
 
 35o'. The Penham, L. K., 3 P. 0. Ca, 212. Pi-. Co. Ca. 25. 
 
 (h) See TJie Agra and ElizaiethJenhins, (m) The Bclipse, 31 Jjaw J., Aim. 201. 
 
 L. E., 1 P. C. 501. See The Esh, L. E., 2 Adm. & Eccl. 350. 
 
394 ' NEGLIGENT NAVIGATION. [CHAP. VIII. 
 
 aground or against a sea-wall and receives damage, the former 
 vessel will be liable («,). And the master, when the ship is at 
 anchor, is bound to keep a sufficient crew on board, to protect her 
 against ordinary perils (o). Although the damage resulting from a 
 collision may be greatly increased by some neglect or default on 
 the part of the plaintiff, yet if the plaintiff's neglect has not 
 caused or contributed to the collision, he is not thereby precluded 
 from recovering damages {p) ; but if the fault of the plaintiff 
 himself is the proximate cause of the collision, he cannot recover 
 in a court of common law {q) : if it is only remotely connected 
 with the accident, then the question is, whether the defendant, by 
 ordinary care, might have avoided the accident, and if he might, 
 the plaintiff is entitled to recover (r). In aU cases of coUisiou 
 between ships, it is the duty of the persons in charge of each ship 
 to render all practicable assistance, and, in case of failure so to do, 
 with no reasonable excuse shown, the neglect will be primA facie 
 evidence of negligence on the part of the person in charge so 
 making default (s). The person in charge under this section is 
 the mate or master, as the case may be (f), and the mere fact of 
 there being a pilot compulsorily in charge of the ship, is not 
 sufficient to exempt the owners from responsibility (m), 
 
 A Queen's officer, stationed on board ship to do his duty there, 
 together with others equally appointed, and stationed there by the 
 same authority to do their several duties, is not responsible in 
 damages for injuries occasioned by the negligence of his subordinate 
 officers iij carrying into effect the orders given by him in discharge 
 of his public duty. Therefore, the captain of a sloop-of-war is not 
 answerable for damage done by her in running down another vessel 
 during the watch of the lieutenant who was upon the deck, and 
 had the actual direction and management of the steering and 
 navigating the sloop at the time {v). 
 
 The mere fact of a ship being chartered and employed by the 
 Government as an armed vessel, and having a commander of the 
 navy on board, under whose orders the vessel is navigated, will riot 
 exempt the shipowners from responsibility for injuries occasioned 
 by the negligence of a master and crew shipped on board and paid 
 by them (w). Nor will the fact that a vessel has been chartered 
 
 (n) The Industrie, L. E., 3 Adm. & {t) See Jic parte Ferguson, L. E., 6 
 
 Bccl. 303. Q. B. 380. 
 
 (o) yAe^Mrfsior, L. E.,2 Adm. &Eccl. (u) The Queen,!,, IR.., 2 Adm. & Eccl. 
 
 268. 354. Aa to negligence while performing 
 
 (p) Greenland T. Chaplin, 5 Exoh. 247. salvage services, see The Thetis, L. K., 2 
 
 (j) Nor can he claim salvage. Tlie Adm. & Eccl. 365. 
 
 CapeUa, L. R., 1 Adm. & Eccl. 356. ' (v) Nicholson v. Mouncey, 15 East, 384. 
 
 (r) Tuff\. Wasrmam, 2 C. B., N. S. 740 ; {w) Fletcher t. Braddieh, 2 B. & P. N. 
 
 26 Law J., C. P. 263. The Vvdd, 1 E. 182. Best, J., Scott v. Scott, 2 Staik. 
 
 Swabey, 88. See ante, p. 22. 438. 
 
 (s) 25 & 26 Vict. c. 63, s. 33. 
 
SECT. l.J LIMITATION OF LIABILITY. 395 
 
 by third persons exempt the shipowners from liahility for the 
 negligence of the master in the stowage of goods shipped on board, 
 unless the charter-party amounts to a demise of the ship (x). But 
 no action is maintainable against the owners of a transport in the 
 employ of Government for damage done in the careful and proper 
 execution of the orders df a Government of&cer, under whose 
 command the vessel was at the time of the accident, unless the 
 order was only meant to apply to a particular state of circumstances, 
 and leaves a certain discretion in the master of the transport, and 
 the circumstances change, and the master carelessly and impru- 
 dently fails to direct his conduct in accordance with the altered 
 circumstances and the requirements of good seamanship (y). 
 
 Collisions ietween vessels — Limitation of liability. — The ninth 
 part of the Merchant Shipping Act, 1854, 17 & 18 Vict. c. 104, 
 s. 502, et seq., contains various provisions for limiting the liability 
 of shipowners in certain cases to the value of > the ship and 
 freight, &c., and the 514th section provides, that in cases where any 
 liability has been incurred by any shipowner in Tespect of loss of 
 Ufe, personal injury, or damage to ships or goods, and several claims 
 are made or apprehended, the Court of Chancery may entertain a 
 suit for the purpose of determining the amount of such liability, 
 and for its distribution rateably among the claimants, and may stop 
 all actions or suits in other courts in rel9,tion to the same subject- 
 matter. This jurisdiction may also be exercised by the Court of 
 Admiralty under the 13th section of the 24 Vict. c. 24, in cases 
 where the ship or the proceeds thereof are "under arrest" of the 
 court. The Court of Admiralty has jurisdiction under the above 
 section, to entertain a suit for limitation of liability in cases of 
 damage caused by a collision between two vessels, although the 
 vessel, on behaK of which the application is made, was sunk by the 
 collision, and cannot therefore, strictly speaking, be "under arrest" 
 of the court. And if the court orders that aU actions in other 
 courts in relation to the subject-matter of the suit be stopped, this 
 win operate to stop an action brought' in a court of common law by 
 a third person against the owners of the applicant vessel for loss of 
 goods, delivered by biTn to them as common carriers, and lost 
 through the collision (2). The court of common law, however, 
 will not, it seems, itself interfere to stop the action in pursuance of 
 such an order (a). 
 
 Negligent navigation causing damage to owners of cargoes. — The 
 owner of a cargo on board a ship is entitled, as we have seen, to 
 
 (x) Sandermn v. Scurr, L. E., 2 Q. B. (2) The Normandy, L. E., 3 Adm. & 
 
 86. Eccl. 152. 
 
 («) HodgUnson v. Pemie, 2 C. B,, N. S. (a) MUbum v. Zand. & South- West. 
 
 415 ; 26 Law J., C. P. 219. Rwy., L. E., 6 Exch. 4. 
 
S9C NEGLICtENT stowage. [chap. VIII. 
 
 recover compensation for damage sustained by coUision through 
 negligence. He may sue the shipowner, if the latter is in default (6), 
 and, if not, he is entitled to sue the wrong-doer causing the damage. 
 And the owner of a cargo on board of one of two delinquent ships 
 is not precluded in the Court of Admiralty from recovering from 
 the other delinquent ship a moiety of the damage he has sustained, 
 for he is not there considered to be in anywise identified with the 
 negligent management of the ship he has selected to carry his 
 goods, nor to be in anywise responsible for the collision (c). 
 
 Duty of master or shipowner as to goods damaged on, the voyage. — 
 In every contract to carry for freight there is an implied obligation 
 on the part of the shipowner, that in the event of any disaster 
 happening to the ship or cargo in a port where correspondence 
 cannot be had with the freighter, the master shall act as his agent, 
 and use his best efforts for the protection and preservation of the 
 cargo. If the cargo is a perishable one, and the vessel is unable to 
 proceed, the master must exercise his judgment whether to tranship 
 the cargo or to proceed. He is not bound materially to delay his 
 voyage to the prejudice of his owner, but he is not at liberty to 
 carry on the cargo, with the certainty that it will perish or mate- 
 rially deteriorate on the voyage, for the sole purpose of earning the 
 full freight (<^). ' 
 
 Negligent stowage causing injwy to goods. — The 6th section of 
 the 24 Vict. c. 10, gives the Court of Admiralty, jurisdiction "over 
 any claim by the owner or consignee, or assignee of any bill of 
 lading, of any goods carried into any port in England or Wales in 
 any ship, for damage done to the goods, or any part thereof, by the 
 negligence or misconduct of, or for any breach of duty, on the part 
 of, the owner, master, or crew of the , ship," unless any owner or 
 part owner is domiciled in England or Wales at the time of the 
 institution of the suit. It has been held that under this section 
 the assignee of a bill of lading may sue the shipowner for the 
 negligent stowage of goods (e), although the property in the goods 
 may not have passed to him (/). Such assignee may also, under 
 the above section, institute civil proceedings against the ship in the 
 Court of Admiralty for the master's misfeasance in cutting down 
 and destroying parts of the ship, and ultimately abandoning her, by 
 
 (6) Although the bill of lading contain tion, see Good v. The London Steam Ship- 
 
 'an, exception of "barratry of masters or oumers' Mutual Protecting Association, L. 
 
 mariners," and " accidents or damages of R., 6 0. P. 563. 
 
 the seas, rirers, and steam navigation of (d) Notara v. ffenderson, L. E,, 5 Q. B. 
 
 whatever nature or kind soever." Lloyd 3i6. 
 
 V. Screw Collier Co., 33 L. J., Exch. 269 ; (e) Tlie Figlia Maggiore, L. E., 2 Adm. 
 
 GriU V. flie same, h. E., 3 C. P. 476. & liccl. 106. See The Freedom, L. E,, 2 
 
 (c) The Milan, ante, p. 393. As to Adm. & Bccl. 346 ; 3 P. C. Ca. 594. 
 
 what is "improper navigation" within (/) The Nq)Oter,'L.'R., 2 Aim. Sc'Ecel. 
 
 the meaning ot a, deed of indemnity 375. 
 against the consequences of such naviga- 
 
SECT. l.J DANGEUOUS EMPLOYMENTS. 397 
 
 which the delivery of the cargo to the assignee was delayed and 
 rendered more expensive {g). 
 
 Negligent navigation causing personal injwry — Damage, to sea 
 walls, &c. — The 7th section of the 24 Vict. c. 10, enacts that the 
 " Court of Admiralty ^hall havg jurisdiction over any claim, for 
 damage done by any ship." Under this section it has heen held 
 that a dock company may sue a ship for injury done through 
 negligent navigation to a breakwater (A) ; and that a diver who 
 has sustained injury from a similar cause, may also sue the ship 
 which caused it (i). If a ship, through the negligent navigation 
 of the master, runs agroujld, and is then driven on to a sea waU by 
 the force of the wind or tide, the shipowner wUl be responsible for 
 the damage done to the wall. In the absence of negligence, how- 
 ever, the shipowner has a reasonable time for the recovery of 
 valuable property contained in the ship, and, as |)etween him and 
 the proprietor of the wall, is not bound to break up the ship 
 immediately (/c). 
 
 Negligence of masters causing injury to their servants. — Every 
 workman who engages in a dangerous employment takes it, as we 
 have seen {ante, pp. 186, 187), with all its ordinary rislcs. The 
 master is bound to provide for the safety of his servant in the course 
 of his employment, to the best of his judgment Q) ; but the law does 
 not impose upon the master the obligation of taking more care of the 
 servant than he may be reasonably expected to take of himseK. 
 The sei"vant is not bound to risk his safety in the service of his 
 master, and may, if he thinks fit, decline any service in which he 
 reasonably apprehends injury to himseK; and in most of the cases 
 in which danger may be incurred, he is just as likely to be ac- 
 quainted with the probability and extent of it as the master. The 
 master, therefore, is not responsible for injuries sustained by his 
 servant through the viciousness of the horse which the servant is 
 employed to groom, or through the breaking down of a van or 
 carriage in which the servant is directed by the master to ride or 
 drive, or from the employer's keeping an insufficient staff of servants 
 for the performance of the work he has to do (m), or through the 
 use of dangerous machinery, with the use of which the servant is, or 
 professes to be acquainted, and which he has voluntarily undertaken 
 
 (g) The Princess Boyal, L. E., 3 Adm. sidered law since the decision in Smith v. 
 
 & Ecel. 41. Semile', also, although the Brown, cmte, p. 392. 
 
 conduct of the master amounted to a (h) The Bailiffs of Bomney Mwpsh v. 
 
 criminal offence, and no criminal pro- Trinity ffouse, L. E., 5 Eich. 204. See 
 
 ceedingB had been taken against him. The George and Richard, L. E,, 3 Adm. & 
 
 S. 0. ^"cl- 4^6. 
 
 oi) The Uhla, L. K., 1 Adm. & Bcol. (I) Pdterson v. Wallace, 1 Macq. VSl. 
 
 29 ij (m) Skipp Y. Bast. Co. Bail. Co., 9 fizch. 
 
 ''(i)'The Sylph, L. E., 2 Adm. & Ecel. 223. 
 24. But this case can hardly be con- 
 
398 DANGEROUS EMPLOYMENTS. .[CHAP. VIII. 
 
 to use (n), or for the dangers attendant upon the mounting of 
 scaffolds, or unfinished staircases and landings, which the workman 
 has voluntarily undertaken to mount with as much knowledge of 
 the attendant risk as the person who employs him (o). 
 
 Where the master's coach broke down through the negligence 
 of a coach- maker who had contracted with the master to furnish 
 the latter with sound roadworthy coaches, and repair them, and 
 keep them in good working order, and the coachman was mutUated 
 and maimed for life, it was held that he had no remedy for the 
 injury. The law does not permit him to recover damages from his 
 own master and employer. Neither can he sue the coach-maker 
 whose negligence occasioned the injury. " It is no doubt a hard- 
 ship upon the plaintiff," observes Eolfe, B., "to be without a 
 remedy, but by that consideration we ought not to be influ- 
 enced " (p). " There would be no end of actions if we were to 
 hold that a person having once done a piece of work carelessly, 
 should, independently of honesty of purpose " (or contract), " be 
 fixed with liability in this way by reason of bad materials or insuf- 
 ficient fastening " (q). 
 
 The master is bound, as we have seen {ante, pp. 186 — 188), to 
 protect his servant from latent dangers on the master's premises, 
 known to the latter and not known to the servant. If a man, 
 employs ignorant, inexperienced workmen in dangerous employ- 
 ments, and exposes |ihem improperly to risks, of which he is 
 cognizant, and which are not known to the ignorant workman, he 
 will be liable for the consequences of his misconduct (r). For 
 personal negligence of the master, whereby injury is occasioned to 
 the servant, the master will be liable (s). And where rules are 
 framed by employers for the purpose of regulating the manage- 
 ment and exercise of a dangerous employment, and these rules are , 
 carelessly or improperly framed, so as to cause dangers and risks, 
 which might be guarded against and prevented by proper rules ■ 
 carefully prepared, the employers wiU be responsible for the con- 
 sequences of their negligence (t). Where statutory regulations 
 exist for the management of a colliery (?<), and securing the safety 
 
 (n) Dynen v. Leach, 26 Law J., Exch. (r) Bartonshill Coal Co. v. Seid, 3 
 
 221. Macq. 295. Mdlors v. Shaw, 30 Law J., 
 
 (o) Assop V. Yates, 2 H. & N. 770 ; 27 0. P. 333. Weems t. Matthieson, i Maoq. 
 
 Law J., Excli. 166. Griffitlis v. Gidlow, H. L. C. 215. Farrant t. Barnes, 31 
 
 ib. 404. Fotts v. PltmkeU, 9 Ir. C. L. E. Law J., 0. P. 139. 
 
 290. (s) Ashworth T. Stanwix, 30 Law J., 
 
 {p) Winterbottom, v. Wright, 10 M. & Q. \i. 183. 
 
 W. 115. Pnestley v. Fowler, 3 M. & («)' Vose t. Lane, and York. Rail. Co., 
 
 W. 6. Eiley v. Baaxndale, 6 H. & N. 455 ; amie, p. 1 83. 
 
 30 Law J., Exoh. 87. Potts v. Port (u) As to ventilation of collieries, see 
 
 Carlisle, <S:c., B. Co., 2 Law T. E., N. S. 23 & 24 Viet. o. 151, s. 10 ; Brongh T. 
 
 283. ■ Homfray, L. R, 3 Q. B. 771. As to 
 
 (q) Per WiUes, J., Collis t. Selden, L. statutory regulations under the Factory 
 
 B., 3 C. P. 498. Acts, see 27 & 28 Vict. c. 48 ; 30 & 31 
 
SECT. 1.] NEGLIGENCE OF FELLOW- SERVANTS. 399 
 
 of the workmen, and these rules are culpably neglected with the 
 knowledge of the owner of the mine, the latter will be responsible 
 for the consequences of his neglect of duty, unless the person 
 injured has brought the mischiefs upon himself by his own negli- 
 gence (x). And in a case where machinery is required by Act of 
 Parliament to be protected, so as to guard persons working near it 
 from danger, and a servant complains of the want of protection, 
 and continues to work in the mill near the machinery on the faith 
 of a promise by the master that the requisite protection shall be 
 afforded, the master will be responsible if any accident occurs to 
 the servant in the interval, from the want of such protection, 
 unless the accident has been caused by the negligence of the 
 serva.nt himself (y). 
 
 Injuries to one fellow-servant from the negligence of another 
 fellow-servant. — ^Where several servants are employed by the same 
 master in one common employment, the master is not responsible 
 for injury resulting to one of them from the negligence of another, 
 provided the master has taken due care not to expose his servant 
 to unreasonable risks {£}, and has been guUty of no want of care in 
 the selection of proper servants (a). The principle laid down is, 
 that a servant, when he engages to serve a master, undertakes, as 
 between him and his master, to run aU the ordinary risks of the 
 service ; and this includes the risk of negligence on the part of 
 a fellow-servant, whenever he is acting in discharge of his duty 
 as servant of him who is the common nlaster of both (6) ; and when 
 the risk of injury from the negligence of the one is so much a 
 natural and necessary consequence of the employment which the 
 other accepts, that it must be included in the risks which are to be 
 considered in his wages. Thus it has been held that a railway 
 company is not responsible for an injury occasioned to one of their 
 own servants by a collision on their railway, caused by the negli- 
 gence of another of their servants, in respect of which injury they 
 would undoubtedly have been liable if the person injured had been 
 a stranger travelling as a passenger for hire (c). But the servants 
 
 Vict. c. 103 ; Kent v. AsOey, L. K., 5 C. P. 106. HaU t. Johnson, Zi Law J., 
 
 Q. B. 19. And as to the provision of a Exch. 222. 
 
 fan in factories where grinding is carried (a) Tmramt v. Webl, 18 C. B. 805. 
 
 on, see 30 & 31 Vict. c. 146, s. 8. See WUson v. Merry, L. R., 1 Scotch & 
 
 (x) Caswell T. Worth, 5 BIL & Bl. 855. Div. App. 326. 
 
 Senior v. Ward, 1 Ell. & BU. 385 ; 28 Law (b) See Morgan v. Vale of Neath Sail. 
 
 J O. B. 139 ; and see amte, p. 80, et Co., 33 L. J., Q. B. 260. S. C, in error, 
 
 sea L- E., 1 Q. B. 149. 
 
 (y) Holmes v. Cla/rhe, 6 H. & N. 349 ; (c) M'Eniry v. Waterford, 8 Ir. C. L. 
 
 SO Law J., Exch. 135. Cowley v. Mayor, E. 312. Tunney v. Midland Rail. [Co., 
 
 &c., of Sunderland, ii. 127. L. E., 1 C. P. 291, in which case the 
 
 (2) Hutchinson r. Torh &c.. Sail. Co., plaintiff, a labourer, was being carried on 
 
 5 Exch. 353. Wiggett y. Fox, 11 Exch. the line, in pursuance of his contract of 
 
 837; 25 Law J., Exch. 188. Sea/rle v. service with the company. Ha-ndo v. 
 
 Lindsay, 1 1 C. B., N. S. 429 ; 31 Law J., JOond., Chat., & Dover Rail., L. E., 2 Q. B. 
 
 439, n., ace. 
 
400 DANGEEOUS EMPLOYMENTS. [CHAP. VIII. 
 
 must be fellow-servants, engaged in a common service (cT) ; for if a 
 fanner's servant, delivering corn at the warehouse of a corn mer- 
 chant, is injured by the negligence of the corn merchant's servant 
 in taking in the sacks, the corn merchant would be" answerable for 
 the injury (e). And it is not enough that the servant injured, and 
 the servant causing the injury, should be servants of the same 
 master ; they must be employed in the same work : for if a gentle- 
 man's coachman was to drive over his gamekeeper, the master 
 would be just as responsible as if t]ie coachman had driven over a 
 stranger (/). Nor is it sufficient that they are temporarily subject 
 to the same superintendent, if they are not in fact the servants of 
 the same master (5'). If a fellow- workman in a mine is also a 
 co-proprietor in the mine, and therefore one of the plaintiffs 
 masters, the common master is then responsible for injury caused 
 by the negligence of such fellow-workman (A). A sub-contractor 
 and his servants engaged in doing the common work of a particular 
 -contract, under a contractor, are all fellow-servants, engaged in one 
 common employment, though each directs and limits his attention 
 to particular branches of the work, and. they all are held to under- 
 take, as between themselves and the contractor, to run all the 
 ordinary known risks of the service, including the risk of 
 negligence of the other servants engaged in discharging the work 
 of their common employer (i). So a carpenter in the service of a 
 railway company cannot sue the company for the negligence of a 
 porter in their employ (Jc). , 
 
 Injuries to volunteers who assist gratuitously in work of a 
 dangerous nature. — If a person comes forward as a volunteer, and 
 offers to assist servants engaged in a difficult or dangerous work, 
 and the volunteer gets injured through the negligence of one of 
 the servants, the employer is not responsible for the injury ; for a 
 person, by volunteering his services, cannot have any greater 
 rights, or impose any greater duties on the employer, than would 
 have existed if he had been a hired servant (I). 
 
 Gontrihutory negligence on the part of the plaintiff. — A plaintiff 
 cannot, as previously mentioned, recover damages in a court of 
 common law, if, but for his own negligence, or that of the person 
 who represents him, the accident would not have happened, though 
 
 (cJ) Lovegrove t. Land. <Si Brighton Mail., (h) Ashworth v. Stammx, 30 Law J., 
 
 33 L. J., C. P. 329. <5. B. 183. 
 
 (e) Abraham v. Reynolds, 5 H. & N. (j) Wi^pieM v. Jba, 11 Excb. 832 ; 25 Law 
 
 149 ; Waller T. S. E. E. Co., 32 Law J., J., Exch. 193. 
 
 Exch. 205. {k) Morgan v. Vale of Neath Rail, 
 
 (/) Ld. Cranworth, BwrtonsliiU Goal supra. 
 
 Co. v. Rad, 3 Macq. 29i, 307. (Z) Degg v. Mid. RaU. Co., 1 H. & K. 
 
 ((/) Warlurtony.Gt.West.Bail.,\j.'R., 773; 26 L. J., Exch. 173. Potter v. 
 
 2 Exch. 30. Faulkner, 1 B. & S. 800 ; 31 Law J., Q. B. 
 
 30. 
 
SECT. 1,] CONTEIBUTOKY NEGLIGENCE. 401 
 
 there was negligence on the part of the defendant (m) ; for the 
 plaintiff cannot complain of an injury which his own negligence 
 and want of care has contributed to bring upon him (n). If, 
 therefore, children stray upon a railway, and get injured by a 
 passing train, damages cannot be recovered by them from the 
 company, although there should be negligence in the management 
 of the train (o). If a person of full age and mature judgment gets 
 up into the defendant's cart, without any right so to do, and 
 sustains an injury from the negligence of the defendant's servant, 
 the person so trespassing is precluded from recovering damages 
 from the defendant (p). "If," observes Domat, "any one goes 
 across a public cricket-ground whilst people are playing there, 
 and the ball, being struck, chances to hurt him, the injury is to be 
 imputed to the imprudence of the person who sought out the 
 danger, and not to the innocent striker of the ball " (q). Where, 
 the plaintiff and defendant being jointly interested in the pulling 
 down and rebuilding of a party-wall between their respective 
 houses, each appointed an agent to superintend the execution of 
 the work, and the work was negligently done, and the plaintiff's 
 house was much injured from the want of proper support during 
 the execution of the work, it was held that he could not maintain 
 an action for damages against the defendant, as the blame was 
 the common blame of both. " Since the wall," observes Lord 
 Ellenborough, "was taken down by both, neither could impute 
 negligence to the other " (r). If an obstruction has been negligently 
 placed in a public thoroughfare by the defendant, and the plaintiff 
 has ridden against it, he cannot recover damages from the defendant 
 if it appears that he was riding at an improper pace, or was 
 intoxicated, and could have avoided the obstruction if he had 
 ridden with reasonable and ordinary care (s). If the risk is 
 obvious, the plaintiff ought not to incur it (t), but should proceed 
 to remove the obstruction (ante, p. 194), or take legal proceedings 
 for its removal, and for the recovery of the damages he has 
 sustained by being deprived of the use of the thoroughfare. In 
 the Court of Admiralty,, in cases of collision, where both vessels 
 
 (m) Waite v. North-Bad. HaU. Co., Ell. Matt. Co. 1 H. & N. 63 ; 25 Law J., Exch. 
 
 Bl. & EU. 719; 27 L. J., Q. B. 417 ; 28 261. Ante, pp. 19—22. 
 
 Law J., Q. B. 258. Tuf v. Warman, 2 (o) Singleton v. E. C. S. Co. 7 C. B., 
 
 C. B., N. S. 740 ; 27 Law J., C. P. 322. N. S. 287. Abtott v. Macfie, ante, p. 21. 
 
 Senior v. Ward, 1 El. & EI. 385; 28 Law (p) Lygo v. Newbold, 9 Exoh. 306 ; 23 
 
 J., Q. B. 139. Scott T. JM). .& Wich. Law J., Exoh. 109. As to boys olimb- 
 
 Bml. Co., 11 Ir. Com. Law Bep. 377; ixigon'a, c^,^^•,tes lA/nch \. Nmdin, ante, 
 
 Taughan v. Corh & Toughal Bail. Co., 12 p. 20. 
 
 lUd. 297. Adams y. Lancashire <fc York- (g) Domat, liv. 2, tit. 8, s. 4. 
 
 sUre Rwy., L. R., 4 C. P. 738 ; 38 L. J., (r) HiU v. Wwrren, 2 Stark. 378. 
 
 C. P. 277. (s) Butterfleld v. Forrester, 11 East, 60. 
 
 In) Jervis, C.J., Martin v. Gt. North. (t) Clayards v. Dethick, 12 Q. B. 446. 
 
 Bail. Co. 16 C. B, 192. Wise v. Gt. West. See WyaU t. Gt. West. Bad., 34 L. J., 
 
 Q. B. 204. 
 
402 NEGLIGENCE, [CHAP. VUI. 
 
 are to blame, the damages, when recovered, are, as we have seen, 
 divided between the delinquent ships (u). 
 
 If a rule established for securing the safety of workmen in a 
 dangerous employment is habitually violated, to the knowledge of 
 the workman himself, the latter has no ground to recover damages 
 from the employer for injuries sustained from the non-observance 
 of the rule (x). 
 
 Negligence on the part of the plaintiff forming no impediment 
 to an action fo^' damages. — Negligence or misconduct on the part 
 of the plaintiff does not, as we have seen, prevent him from 
 recovering damages in those cases where the negligence or mis- 
 conduct has not been an immediate co-operative cause of the 
 injury of which he complains (y). 
 
 Injuries from the negligence of skilled worhmen and professional 
 men. — It is the duty of every workman who undertakes the 
 performance of work, to execute it with care and diligence, and with 
 the ■ ordinary amount of skill and knowledge incident to his 
 particular craft, art, or profession. If a carpenter undertakes to 
 roof a barn, or build a shed, and employs defective materials, or 
 does his work so negligently and unskilfully that the roof, when 
 finished, will not keep out the rain, he is responsible in damages to 
 his employer (z). If a builder undertakes to build a house, and 
 builds it out of the perpendicular, or neglects to examine the 
 ground and secure proper foundations for the building, and 
 constructs the walls so carelessly and negligentiy that a settlement 
 takes place and cracks make their appearance, and the structure 
 becomes a dangerous nuisance, the builder is responsible in damages 
 for negligence (a). So if he is guilty of negligence in not sufficiently 
 underpinning the adjoining house, whereby such adjoining house is 
 injured ; and the penalty imposed by s. 94 of the Metropolitan 
 Building Act (18 & 19 Vict. c. 122), on a building owner who, in 
 making his own buildings, damages those adjoining, is cumulative (&). 
 
 The degree of skiU and diligence which is required from the 
 workman depends upon the nature and extent of his public profes- 
 sion, and rises in proportion to the value, the delicacy, and the 
 beauty of the wprk he undertakes to execute, and the fragility and 
 brittleness of the materials intrusted to him to work upon (c). 
 Clockmakers, jewellers, opticians, and aU kinds of skilled workmen 
 
 (u) The Milm, cmte, p. 393. v. Ga/rrwrd, 1 Campb. 39. Duncan v. 
 
 (a) Senior v. Ward, 1 El. & El. 385 ; BlundeU, 3 Staxk. 7. Munro v. Butt, 8 
 
 h '^:' ^- ^- ^^^- ^"- ^ ^1- 738. WUliams v. FUzmauriee, 
 
 (y) Ante, pp. 20, 21. 3 H. & N. 844. 
 
 (z) Broom y. J)ams, cited ia Batten v. (6) WWams t. Golding, L. K, 1 C. P. 
 
 Butter, 7 East, 479, n. Moneypenney v. 69. See ante p 180 
 
 Ilm-tland, 2 C. & P. 378 (c) Addison on Contracts, 6th edit., 
 
 [a) Harmam v. GOmehia, 5 C. Br, N. S 399. 
 236; 23 Law J., 0. P. 88. Fm-nsworth 
 
SECT, l.j OF BUILDERS, SUEGEONS, CIIYMISTS, ETC. 403 
 
 and all persons belonging to the learned professions (except 
 barristers), are responsible in damages if tbey profess to accomplish 
 more than they are able to perform, and undertake works of skill 
 "without beiiig possessed of sufficient skill, or apply less than the 
 occasion tequires (d). "Every person," observes Tindal, C.J., 
 " who enters into a learned profession undertakes to bring to the 
 exercise of it a reasonable degree of care and skill. He does not 
 undertake, if he is an attorney, that at all events you shall gain 
 your cause ; nor does a surgeon impliedly undertake that he will 
 perform a cure, nor does he undertake to use the highest possible 
 degree of skill, but he undertakes to bring a fair and competent 
 degree of sldll " (e). So a chymist will be liable for neghgence 
 in compounding hau- wash, by which the plaintiff's wife was 
 injured (/). 
 
 Negligence of attorneys and solicitors (g). — Every client has aright 
 to the exercise, on the part of his attorney, of care and diligence in 
 the execution of the business intrusted to him, and to a fair 
 average amount of professional skill and knowledge ; and if 
 attorneys have not as much of these qualities as they ought to 
 possess, or if, having them, they have neglected to employ them, 
 the law makes theln responsible for the loss which has accrued to 
 their clients from their deficiencies Qi). It is the duty of every 
 attorney and solicitor to act with fidelity to his client, and to keep 
 the secrets of the latter ; " for if a man, being intrusted in his 
 profession, deceive him who intrusted him, or if a man retained of 
 counsel become afterward of counsel with the other party in the 
 same cause, or discover the evidence or secrets of the cause ; or if 
 an attorney act deceptive, to the prejudice of his client, or make 
 defatilt by collusion Ifrith others, whereby his client is injured, an 
 action lies for damages " (i). If an attorney, when his client's 
 deeds are put into his hands, for the purpose of raising money, 
 discloses defects of title to the person who was about to lend, and 
 the client sustains damage therefrom, the attorney is responsible for 
 neglect of duty, and cannot shelter himself from the consequences 
 by showing that he was also employed on the part of the proposed 
 lender, and was actuated by a sense of justice towards him; for 
 
 {d) Sea/re v. Prentice, 8 East, 352. Vict. o. 28), will absolve such attorney 
 
 Slater t. Baher, 2 Wils. 359. from the , consequences of his negligence. 
 
 (e) Zanphier t. PAipos, 8 0. & P. 479. See s. 7. ' 
 
 Hanche r. ffooper, 7 C. & P. 81 . (A) ffM't v. Frame, 6 CI. & Fiii. 209. 
 
 (/) George v. Skkimffton, L. B., 5 MmseUv. Palmer, 2 Wi\a. 325. As to the 
 
 Eich. 1. liabilities of a firm for the negligence, 
 
 (g) As to their duty to keep accounts, &c., of one member of it, see Bwidonald 
 
 see Hx pa/rte NemMe, L. R, 4 Ch. App. (Earl of) v. Mastermmi, L. E., 7 Eq. Ca. 
 
 43. No agreement between an attorney 604 • 38 Law J., Ch. 350. Bickford v. 
 
 and his client as to the former's remune- Darcy, L. R., 1 Exch. 354. 
 
 ration made in pursuance of the Attor- (i) Com. Big., Action on the Case for 
 
 neys and Solicitors Act, 1870 (33 & 34 Deceit, A. 5. 
 
 D D 2 
 
404 NEGLIGENCE, [CHAP. VIII. 
 
 whenever an attorney finds that he has a conflicting duty to 
 discharge towards his several clients, he must at once withdraw 
 from the inconsistent employment, and decline to act in the matter. 
 Whenever the attorney has his client's title-deeds put into his 
 hands for any purpose whatever, " he is to consider his lips sealed 
 with a sacred silence as to the whole of their contents " (k). 
 
 It is also the duty of every attorney, by reason of the emolu- 
 ment he receives for the exercise of his professional skill, to take 
 care that his client does not enter into any covenant or stipulation 
 that may expose him to a larger responsibility than the nature' of 
 the business he is instructed to transact may, in the ordinary course 
 of practice, require. If the stipulations are more onerous in their 
 consequences than usual, the matter should be fully explained to 
 the client, and the unusual extent of liability be made known to 
 him (l). 
 
 If an attorney conducting a suit neglects to comply with the 
 practice or orders of the court, and neglects to take some, necessary- 
 step in the cause, by means whereof all the previous proceed- 
 ings become useless, he will be responsible in damages to his 
 client (to). And the same consequences follow if he brings an 
 action for his client, \yithin a limited jurisdiction, on a cause^of 
 action manifestly arising out of the jurisdiction (n), or negligently 
 suffers judgment to go by default when he is retained to defend an 
 action (o) ; or fails to instruct counsel properly, and to deliver" 
 briefs in sufficient time to enable his counsel effectively to perform 
 the duty intrusted to hini ; or if he is not present in person, or by 
 his agent at the trial, to see that the witnesses are forthcoming 
 when called upon (jp). When present at the trial, it is the duty of 
 the attorney not to suffer the case to be called on, unless he has 
 previously ascertained that all the necessary witnesses are in attend- 
 ance (q) ; but he is not bound to search after his counsel, nor is he 
 answerable for the non-attendance or neglect of the latter (r). If 
 he has received instructions from his client not to compromise an 
 action he is retained to prosecute, he will be guilty of a breach of 
 duty if he does compromise, and cannot shelter himself from an 
 action by showing that it was done under the advice of counsel (s), 
 although that circumstance might go in reduction of damages. 
 
 (k) Tindal, C.J., Taylor v. BImUow, 3 {p) HawTdns v. Bwrwood, i Exoh. 506; 
 
 B. N. C. 235. 19 Law J., Exoh. 33. De Houjigny v. 
 
 (I) Stannwrd v. Ullithome, 4 M. & Sc. Peale, 3 Tauat. 483. Swcmnell v. Mis, 8 
 
 376 ; 10 Bing. 4^1. Moore, 340 ; 1 Bing. 347. 
 
 (m) Bracey v. Carter, 12 Ad. & E. 373. (g) Heece v. Higby, 4 B. & Aid. 202. 
 
 FramUand v. Gok, 2 Or. & J. 590. Fitt (r) Zowry x. OuUdford, 5 0. & P. 234. 
 
 T. Yaldm, 4 Burr. 2063. (s) Fray r. Voules, 1 El. & El. 839 ; 28 
 
 («) WtUmms V. Gibbs. 6 N. & M. 788. Law J., Q. B. 232. Butler v. Knight, L. 
 
 (o) Godefroy v. Jay, 5 M. & P. 297 ; R., 2 Exch. 109. 
 y Bmg. 419. 
 
SECT. 1.] OF ATTOKNEYS. 405 
 
 But in the absence of a distinct prohibition to compromise, the 
 general authority of an attorney is sufficient for that purpose (t). 
 
 " It would be extremely difficult," observes Tindal, 0. J., " to 
 define the exact amount of skill and diligence which an attorney 
 undertakes to furnish in the conduct of a cause. The cases, 
 however, appear to establish, in general, that he is liable for the 
 consequences of ignorance or non-pbservance of the rules of 
 practice of his court, for the want of care in the preparation of the 
 cause for trial, or of attendance thereon.with his witnesses, and for 
 the mismanagement of so much of the conduct of a cause as is 
 usually and ordinarily allotted to his department of the profession ; 
 but he is not answerable for error in judgment upon points of new 
 occurrence, or of nice or doubtful construction, or of such as are 
 usually intrusted to men in the higher branch of the profession of 
 the law, unless he has thought fit to act upon his own judgment 
 and opinion respecting matters which ought to have been laid 
 before counsel " (u). Primd facie the attorney's retainer ceases 
 on judgment being obtained, but it may be renewed by any acts 
 showing the client's intention that he shall continue to act in that 
 relation (x). 
 
 If an attorney is employed to investigate the title to an estate, 
 or to seek out an eligible investment, and obtain good security for 
 money advanced, and the title is obviously defective, or the security 
 is .manifestly bad or insufficient, the attorney will be responsible for 
 his negligence both at common law and in equity (y). But he is 
 not responsible for an advance on a mortgage which turns out 
 a deficient security, if he has taken the opinion of a competent 
 surveyor as to the value of the property (z). He is not justified 
 in relying upon an extract from a will furnished to him by his 
 client, unless the latter agrees to take the entire responsibility upon 
 himseK; but he ought to search for and examine the original 
 will (a). If he relies upon his own judgment and opinion as to 
 the interpretation and legal operation of deeds and conveyances, he 
 does so at his peril. If he draws a wrong conclusion from them, 
 he will be responsible in damages to his client. He ought, there- 
 fore, to lay them before counsel, if he wishes to avoid the responsi- 
 bility of acting upon his own judgment respecting them (&). 
 
 {t) Pristvdck T. Foley, 34 L. J., C. P. (as) Butler v. Knight, supra. 
 
 189. Butler v. Knight, supra. (y) Knights v. Quarks, i Moore, 532 ; 
 
 iu) Godeftoy v. Bolton, 6 Bing. 468. 2 B. & B. 102. Whitehead v. Oreetham, 
 
 Purves V. Landell, 12 01. & T'in. 98. 10 Moore, 183 ; 2 Bing. 464. ffoweU y. 
 
 Shilcock V. Passman, 7 C. & P. 292. Young, 5 B. & C. 259. Chapman v. 
 
 Kemp V. Burt, 4 B. & Ad. 431. Long v. Chapman, L. R., 9 Eq. Ca. 276. 
 
 Orsi, 18 0. B. 610. Cox \. Leech, 1 C. B., {z) Chapman v. Chapman, supra. 
 
 N. S. 617. Ireson T. Pearman, 3 B. & C. (o) Wilson v. Tucker, 3 Stalk. 156. 
 
 812 813. Townleg y. Jones, 8 0. B., N. S. (6) Ireson v. Pearman, 3 B & C. 813 ; 
 
 289. 5 T). & U. 699. 
 
406 NEGLIGENCE"— OF BAEKISTERS, [CHAP, VIII. 
 
 If, wlien retained 'by 3. client who is about to advance Hs inoney 
 on the security of a mortgage, he has reason to suspect that the 
 intended mortgagor has been insolvent, or in embarrassed circum- 
 stances, he will be responsible for a breach of duty if he neglects 
 to make searches in the proper quarter to ascertain whether such 
 intended mortgagor has ever takgn the benefit of the Insolvent 
 Act (c) ; or to make inquiry whether there are any existing incum- 
 brances on the property {d). If he neglects to register a judgment, 
 or to file a cognovit or warrant of attorney, or to file writs, and his 
 client sustains damage from his default, he will be responsible for 
 the consequences (e). Nor has he any implied authority, after 
 judgment in favour of his client, to enter into an agreement on his 
 behalf to postpone execution (/), When employed by a purchaser 
 of leasehold property, he is not exonerated from the duty of 
 investigating the title of the vendor by ^ stipulation in the 
 conditions of sale that the lessor's title is not to be gone into, and 
 that no abstract of the vendor's title will be furnished, He must, 
 nevertheless, ascertain that the vendor has a lease, and that the 
 whole transaction is not a mere pretence {g). 
 
 Negligence of barristers. — There is' no instance of any action 
 having been successfully brought against a barrister for neglect of 
 duty ; but if a barrister intentionally does a wrong, and acts with 
 malice, fraud, or treachery in the discharge of his professional 
 duties he will be responsible, like every other wi-ong-dper, for the 
 mischief thereby occasioned Qi), 
 
 Negligence of surveyors or valuers. — "Where the plaintiff under- 
 takes to perform work to the satisfaction of the defendants' surveyor, 
 payment to be made only on the certificate of such surveyor, if the 
 defendants and the surveyor collude to withhold the giving of the 
 certificate to prevent the plaintiff from being paid for his work, 
 there is abundant authority, both at law and in equity, that the 
 defendants cannot shelter themselves by means of any such mis- 
 conduct (^). But a declaration against the defendant, that his 
 surveyor wrongfully and improperly neglected and refused to give 
 his certificate, discloses no cause of action, for that would be to 
 substitute the opinion of a jury for a certificate of the surveyor, 
 which it was the very object of the contract to prevent (Jc). Where 
 two persons were employed to value between the incoming rector 
 and the representatives of the deceased incumbent, and the de- 
 
 (c) Cooper y. Stephenson, 21 Law J„ (/) Lovegrove v. White, L. R, 6 C. P. 
 Q. B. 292. 440. 
 
 (d) Hopgood v. ParUn, L. R, 11 Eq. {g) AUem v. Clark, 11 "W. E. 304. 
 
 Oa. 74. See RatcUffe v. Barmwd, L. E,, (h) Swmfm v. Id. Ghehasford, g H. & 
 
 6 Ch. App. 652. N. 918 ; ^9 Law J., Exoh. 382. 
 
 (e) Sunter v. CalAwell, 10 Q.B. 82; 16 (i1 Erie, C.J., Clarice T. Watson, Zi h. 
 Law J., Q. B. 274. J., C. P. 148. 
 
 (J) Olwrhe v. Watson, supra. 
 
SECT. 1.] SUEVEYOES, BANKERS, DIEECTOES, . ETC. 407 
 
 fendant, through ignorance of the true principle for the valuation 
 of ecclesiastical dilapidations, valued so favourably to the opposite 
 party and adversely toihe plaintiff, that his valuation was accepted, 
 it was held that he was liable for the results of his ignorance (I). 
 
 Negligence of hank-managers. — It has been mentioned, ante, p. 8, 
 that a refusal by a banker to honour his customer's cheque, if he 
 has sufficient funds in his hands, is actionable. It is no breach of 
 duty on the part of the manager of a bank to discount bills for 
 companies in which he is interested, provided the advances are made 
 within the scope of his authority and in the ordinary course of 
 business, and no allegation of mala fides can be sustained, nor is he, 
 . it seems, under any obligation to disclose to the directors the fact 
 that he is a shareholder in companies keeping accounts with the 
 bank (m). It has never been decided whether there is any legal 
 obligation on a banker not to disclose the state of his customer's 
 account except up6n a reasonable and proper occasion; but, 
 assuming that such an obligation exists, the question what is a 
 reasonable occasion is clearly one for the jury to decide, and if the 
 customer sustain any special damage by the banker having disclosed 
 the state of his account, the banker would, it seems, be responsible (m). 
 A banker is not liable for the loss of a box left under his care by a 
 customer for safe custody, of which the customer keeps the key, 
 and for which no payment is made, if it be stolen by one of the 
 clerks of the bank, unless the loss was occasioned by gross negli- 
 gence on the part of the banker (o). But if a banket or banking 
 company undertakes the custody of securities for a customer and 
 charges a commission for the receipt of the dividends from 
 them, they would, it seems, be liable for negligence, if they left the 
 securities in the uncontrolled power of their clerk or manager, who 
 fraudulently disposed of them {p). 
 
 Negligence of directors of public companies. — If directors of a 
 joint-stock company receive the deposits of shareholders for a 
 company with certain objects, and subsequently, by the memo- 
 randum of association, register other and different objects, the 
 shareholder may defend an action for calls, and obtain the can- 
 cellation of the contract in equity, and, it would seem, may, at least 
 in cases of actual fraud, sue the directors in a court of equity for 
 neglect of duty, and so obtain the return of the moiley deposited (q). 
 And the official liquidator, on behalf of all the shareholders, or the 
 individual shareholders, according to circumstances, may institute 
 
 fl 
 
 (I) JenUns v. BetJum, 15 0. B. 168 ; (o) CHhlin t. McMnlhn, post, p. 430. / 7 ''"►"^■''^ 
 
 24 L. J., C. P. 94. (p) Re Umted Service Co., L. E., 6 Ch. "h Y^"' 4 
 
 (w) Bamk of Upper Canada v. Brad- App- 212. -}CiA- • 6- '^''" 
 
 alaw, L. K., 1 P. C. Ca. 479. (q) Stewart v. Austm, L, E., 3 Eq. Ca. 
 
 (n) Ewrdy T. Yeoiey, L. E., 3 Exch. 299. Ship v. Crosskyi, L. E., 10 Eq. Ca'. 
 
 107. 78. 
 
408 NEGLIGENCE, [CHAP. VIII. 
 
 a suit in equity against the directors for the purpose of compelling 
 them to make good losses occasioned by their misconduct in the 
 management of the Company's affairs, e.g., by their acting contrary 
 to provisions in the deed of settlement, issuing false balance-sheets,, 
 paying dividends out of capital (r), paying bonuses -without a proper 
 balance-sheet, or making due allowance for risks which the com- 
 pany had incurred, &c. (s). But the directors of a company, who 
 purchase the business of an insolvent partnership composed of 
 men possessed of real estate, are not necessarily liable for negligence, 
 in not taking mortgages on the estates of such partners {€). Nor 
 would they as a body be liable for the acts of a few of their 
 number, acting as an executive committee, who, with a view to 
 enhance the price of the shares, bought them with the company's 
 money, but concealed the transaction under colour of a loan to 
 third persons apparently solvent and respectable (m). ISTor for 
 publishing a debtor and creditor account of the company, m which 
 they credited the company with debts as good, believing them to be 
 such, which subsequently turned out to be bad, and issuing fresh 
 shares at a premium on that assumption {x). 
 
 SECTION II. 
 
 OF ACTIONS FOR NEGLIGENCE — ^DIEECT AND CONSEQUENTIAL INJUEIES. 
 
 Actions for compensating the families of persons killed ly negli- 
 gence. — By 9 & 10 Vict. c. 93, it is enacted, that whensoever the 
 death of a person shall be caused by any wrongful act, neglect, or 
 default, which, if death had not ensued, would have entitled the 
 party injured to maintain an action and recover damages in respect 
 thereof, the person who would have been liable if death had not 
 ensued shall be liable to an action for damages (y), although the 
 death shall have been caused under such circumstances as amount 
 in law to felony. And (s. 2) that eyery such action shall be for 
 the benefit of the wife, husband, parent, and child (z) of the deceased 
 person, and shall be brought by, and in the name of, his executor or 
 
 {r) Twrquamd v. Marshall, L. R, 6 Eq. Fermoi/, L.'E., 5 Ch. App. 763. 
 
 «o*A ^'^V * ^^- ^PP- ^^® ' ^^ ^- '^- ^^- (») -^"cison V. Turguand, L. K., 4 EngL 
 
 bda. bee General Exchange Banh t. k Ir. App. 305 
 
 Mmner, L. E., 9 Eq. Ca. 480. (3,) See The Ouldfaxe, ante, p. 392. 
 
 {«) Sancesca^e,!.. E., 6 Ch. App. 104. (z) An iUegitimate child is not within 
 
 (t) Overmd <fc Co. t. Oumey, L. E., 4 the purview of the statute. Dickinson r. 
 
 .Lh..App. 701. iVort/t Ea»t. Rail. Co., 33 Law J., Excli. 
 
 W Land Credit Co. of IrOand y. Lord 91. 
 
SECT. 2.] ACTIONS FOR DEATH CAUSED BY. 409 
 
 administrator (a), and the damages recovered, after deducting certain 
 costs, shall be divided amongst the before-mentioned relatives, in 
 such shares as the jury by their verdict shall find and direct. But 
 not more than one action shall (s. 3) be brought in respect of the 
 same subject-matter of complaint, and the action must be com- 
 menced within twelve calendar months after the death of the 
 deceased person, and the plaintiff must deliver (s. 4), together with 
 the declaration of his cause of action, a full particular of the persons 
 on whose behalf the action is brought, and of the nature of the 
 claim (6). If the deceased has brought an action in his lifetime, or 
 has received satisfaction during his life in respect of the injury, no 
 fresh action, or no action, as the case may be, can be brought by 
 his personal representatives after his death (c). 
 
 Contributory negligence on the part of the deceased will be a 
 bar to an action by his personal representatives where the deceased 
 himseK, if he had lived, could have maintained no action for the 
 injury (d). But if the circumstances of the negligence were such 
 that, if death had not ensued, the deceased might have brought his 
 action in respect of it, his representatives may maintain an action 
 in respect of pecuniary loss occasioned by the death, although that 
 pecuniary loss would not have resulted from the accident to the 
 . deceased himself, had he lived. 
 
 The loss of the benefit of education, and of the enjoyment of 
 the comforts and conveniences of life, depending upon the posses- 
 sion of pecuniary means to obtain them, through the death of a 
 father whose income ceases with his life, is an injury in respect of 
 which an action can be maintained on the statute ; and so, also, is 
 the loss of a pecuniary provision which fails to be made, owing to 
 the premature death of a person by whom such provision would 
 have been made had he lived ; for wherever there is a reasonable 
 expectation of pecimiary advantage from the prolongation of the 
 life of a person, the extinction of such expectation by negligence 
 occasioning his death will be sufficient to sustain an action upon 
 the statute (e). 
 
 Actions at law, and proceedings in the High Court of Admiralty 
 for negligence. — The High Court of Admiralty has jurisdiction over 
 all causes of action arising from collisions ^between vessels caused 
 by negligence either in a port or river, or on the British seas or 
 high seas f/), and over any claim for damage done by any 
 
 (a) In case there is uo executor, ifcc, 3 Q. B. 556. 
 
 or of his tinwillingness, &c., to sue, the {d) Ante, pp. 19 — 22, Contributory 
 
 action may be brought by the pereons Negligence. 
 
 beneficially interested. 27 & 28 Vict. (c) Pym t. Qt. Nm-th. Mail. Co., 31 Law 
 
 0. 95. J., Q. B. 249 ; 32 lb. 377. 
 
 (6) DucJcworth T. Johnson, 4 H. & N. (/) 4 Inst. c. 22 ; 7 & 8 Vict. e. 2 ; 3 
 
 653. & 4 Vict. c. 65. The Mekina, 31 Law J,, 
 
 (c) Read v. Great. East. Bail. Co., L. B., Adm. 113. 
 
410 NEGLIGENCE. [CHAP. VIII. 
 
 ship (g). The proceeding in the Court of Admiralty is an action in rem, 
 the first step in the process being a seizure of the delinquent ship, 
 which is impounded and detained to answer the plaintiff's claim ; 
 but the proceedings may be either in rem or in ^personam (h). The 
 Trinity Masters attend to assist the Court, and this has been thought 
 to make it a desirable tribunal for the trial of causes involving ques- 
 tions of nautical skill and science (i). Proceedings in rem in the 
 Admiralty Court are no bar to an action for damages Qc), but the 
 Admiralty Court may provide against the parties being harassed by 
 actions for the same collision by other parties, by providing that 
 the compensation awarded shall not be paid till such other parties 
 have released their claims (J). In the Court of Admiralty, in 
 cases of collision where both ships are to blame, and the 
 provisions of the Merchant Shipping Act do not intervene, the 
 owners of the cargo, equally with the owner of the ship, recover a 
 moiety of the damage (m). The remedy is equally open to the 
 shipowner and the owner of the cargo. 
 
 By the Mercantile Shipping Act, 1854 (17 & 18 Vict. c. 104), 
 it is enacted (s. 512), that in cases where loss of life or personal 
 injury has occurred by any accident, in respect of which the ship- 
 owner is alleged to be liable in damages, no person shaU. be 
 entitled to bring an action until the completion of any inquiry 
 that may be instituted by the Board of Trade, or until the Board 
 of Trade has refused to institute an inquiry; and the Board pf 
 Trade is to be deemed to have refused whenever notice has been 
 served on it by any person of his desire to bring an action, and no 
 inquiry is instituted by the Board for one month after service of 
 the notice. And, after the completion of such inquiry, if any 
 person injui'ed estimates the damage at a greater sum than "the 
 statutory amount, or (in case of a compromise having been made 
 by the Board) the amount accepted by the Board by way of com- 
 pensation, such party may, subject to the limitations and restric- 
 tions there provided, bring an action for damages (ante, pp. 390— 
 395). The owner of a cargo on board a ship that has violated 
 the statute, and so contributed to the injury, is not, as we have 
 seen, prohibited thereby from recovering in the Court of Admiralty 
 compensation against another ship which also by negligence con- 
 tributed to the collision (ante, p. 396), 
 
 Parties to he made plaintiffs. — A person who has let chattels out 
 to hire may, nevertheless, sue for damages in respect of a per- 
 
 (g) 24 Vict. c. 10, s. 7. See ante, p. 392. {h) Ndam, v. Couch, 33 Law J., 0. P. 
 
 Smith V. Brown. 46. 
 
 (h) Ibid. B. 35. (l) The Minna, L. E., 2 Adm. & Eccl. 
 
 (j,) The Anne & Mary, 2 W, Eob. 196; 97. 
 
 aud see 23 Jur. part 2, 483. (m) Tlie MUcm, 31 Law J., Adm. 105. 
 
SECT. 2.] KEMEDY BY ACTION — PARTIES. 411 
 
 manent injury to Ms reversionary interest. Thus, where the owner 
 of a barge, who had let it out to hire to a bailee, brought an action 
 for damages done to it, by reason of the negligence of a third 
 party, it was held that he had a right to sue for the injury, not- 
 withstanding the bailment (n). 
 
 Joint and s&parate rights of action.-'— When there are several 
 joint-owners of a chattel which has been damaged or destroyed by 
 negligence, all should be joined as plaintiffs ; and if they are not 
 so joined, the defendant may object to the non-joinder, in order 
 that he may not be harassed by several actions for the same 
 cause (o). "Where two persons were owners of a ship in unequal 
 proportions as tenants in common, A being the owner of a fourth 
 part, and the plaintiff of the remaining three-fourths, and the 
 former brought an action against the defendants, the owners of 
 another ship, for wrongfully running down and injuring the vessel 
 in which they were mutually interested, and the defendants 
 omitted to plead the non-joinder of the other part-owner in abate- 
 ment, and A had judgment, and obtained full satisfaction for aU 
 the damage that he had sustained to his share of the ship, and 
 afterwards the plaintiff, the owner of the remaining three-fourths 
 of the ship, sued the same defendants for the damage he had sus- 
 tained, and the defendants pleaded the non-joinder of A in abate- 
 ment, and the plaintiff then set forth in his replication the 
 proceedings in the former action, it was held that as the other part- 
 owner had already received satisfaction, he could not be entitled to 
 any part of the damages to be recovered in that action, and that 
 he need not, consequently, be joined as a plaintiff (p). 
 
 Parties to he made defendants. — The person who actually inflicts 
 the injury through his own, negligence, is of course always respon- 
 sible for the injurious consequences of his default, "Those," 
 observes Domat, " who construct worlds, or who do any other thing 
 from whence may ensue damage to others, wiU be answerable for 
 that damage, if they have not taken the necessary precautions to 
 prevent it. Thus masons, carpenters, and others, who carry mate- 
 rials up their scaffolds, and those who, from the top of a tree, cut 
 down the branches thereof, must give timely warning to aU persons 
 likely to be endangered by their proceedings, and will be answer- 
 able in damages if they neglect so to do " (§) ; but as these persons 
 are generally acting under the directions of some master and 
 employer, and are unable themselves to make compensation in 
 damages to the persons injured, the law properly holds the master 
 
 (n) Mmra v. Lord. <Se 8.-W. Kail. Go., (p) SedgwoHh v. Overend, 7 T. E. 280. 
 
 11 C. B. N. S. 850 ; 31 Law J., 0. P. Bloxam v. Suhiard, 5 East, 420. 
 
 220. ' ' (?) Domat, lir. 2,.tit. 8, s. 4. 
 
 (o) Ante, pp. 70, 203 ; post, ch. 20. 
 
412 NEGLIGENCE. [CHAP. VIII. 
 
 and employer responsible for the act of his servant, whether the 
 work is done by a domestic servant or day-labourer, or by a person 
 who works by the job or piece, and contracts to do the work for a 
 specific sum (r) ; provided always, that the workman is an ordi- 
 nary labourer, personally engaged in the execution of the work, 
 acting under the control of the master, and not a contractor 
 exercising an independent employment, and selecting his own 
 servants and workmen for the performance of the work (s). 
 
 If the person for whom the work is done selects the servant 
 who is to do it, that will not relieve the master of such servant 
 from liability for his negligence (t). 
 
 A servant who merely hires labourers for the performance of 
 the master's work, is not answerable for the negligence of such 
 fellow-servants, or for injuries inflicted by them in the course of 
 their employment. Thus a gardener or a steward, who employs 
 labourers under him to do his master's work, is not answerable for the 
 defaults or improper conduct of such labourers causing damage to a 
 third person. In such cases the action must either be brought against 
 the hand committing the injury, or against the owner for whom the 
 act was done (u), or against both the one and the other jointly (x). 
 
 Where the lessee of a ferry hired of the defendants a steamer, 
 with a crew, for the day, to carry his passengers,, it was held that 
 the defendants were liable for injuries caused to the passengers by 
 the negligence of the crew, who were the servants of the defendants, 
 alt^iough the passengers contracted with the lessee of the ferry for 
 conveyance in the steamboat, and paid their fares to such lessee (y). 
 
 The liability of any one other than the person actually doing 
 the act from whence the injury results, proceeds on the maxim qui 
 facit per alium facit per se. The master has the selection of the 
 servant employed, and it is reasonable that he who has made 
 choice of an unskilful or careless person to execute his ordersj 
 should be responsible for any injury resulting from the want of 
 skiU. or want of care of the person employed; but neither the 
 principle of the rule nor the rule itself can apply to a case where 
 the person sought to be charged does not stand in the character of 
 employer and master to the person by whose negligent act the 
 injury has been occasioned (a). Therefore where the defendant 
 employed a carpenter to make a signboard, and obtained permis- ■ 
 sion for him to make it in the plaintiff's shed, and the carpenter 
 in lighting his pipe negligently set fire to the shed, it was held 
 
 («•) Ante, pp. 23—25. Birhet v. White- (u) Stone r. Oarttoright, 6 T. R. 411. 
 
 kmen June. JiaU. Co , i Exch. 137. (») Wilson t. Pcto, 6 Moore, 49. 
 
 (a) Sadler v. fferUock, 4 Ell. & Bl. 578; {y) Dat/yett v. Tyrer, KL Bl. & El. 899 ; 
 
 24 Law J., Q. B. 138. 28 L. J.. Q. B. 52. 
 
 (t) Holmes v. Onion, 2 C. B., N. S. 790; (s) Eeediey. Lond. <£• North- West. Rail. 
 
 26 Law J., C. P. 263 ; ante, p. 23. Co., 4 "Exch. 265. 
 
SECT. 2.] ACTIONS — PARTIES— CONTRACTOES. 413 
 
 that the plaintiff could not recover against the defendant, for the 
 act of the carpenter in lighting his pipe "was not connected with the 
 employment on which he was engaged by the defendant (a). 
 
 The master is not relieved from his responsibility for the 
 wrongful act of his servant whilst doing his master's work, merely 
 because an Act of Parliament has limited and controlled the choice 
 of the master in the selection of his servants, and has compelled 
 him to choose from a particular class of skilled or educated per- 
 sons, supposed to be peculiarly fitted for the performance of the 
 duties intrusted to them to discharge (&). 
 
 The general rule is, that the person injured by the negligence 
 of another cannot go beyond the person who actually did the injury, 
 unless he can establish that the latter stood in the relation of a 
 servant to the defendant, or that the injury was the inevitable, 
 result of some specific order given by the defendant. There are 
 two classes of cases : the first, where the act is done under the 
 order of the employer, and the order cannot be obeyed without 
 doing what is complained of ; the second, where the improper mode 
 of doing what might be rightly done occasions the mischief. 
 Endeavours have been made to hold all parties liable from whom 
 the act ultimately originates ; but it has been held, that if the act 
 ordered to be done can be lawfully done without injury to others, 
 the act of the person personally engaged in doing the mischief is not 
 the act of the person who set Tn'm in motion, unless the relationship 
 of master and servant can be established between them (c). 
 
 Contractor and sub-contractor. — Although, therefore, a person 
 has ordered or directed a particular thing to be done, yet if he 
 does not employ his own servants and workmen to do it, but 
 'intrusts the execution of the work to a person who exercises an 
 independent employment, and has the immediate dominion and 
 control over the workmen engaged in the work, he is not responsible 
 for injuries done to third persons from the negligent execution of 
 the work (d) ; unless a nuisance is thereby created and continued 
 on his own premises {ante, p. 205). Thus, where a butcher employed 
 a licensed drover in the way of his ordinary calling to drive a 
 buUock from Smithfield to the butcher's slaughter-house, and the 
 drover negligently sent an inexperienced boy with the buUock, who 
 drove the beast into the plaintiff's show-room, where it broke 
 several marble chimney-pieces, it was held that the butcher was 
 not answerable for the damage (e.) And where a company, 
 empowered by Act of Parliament to construct a railway, contracted 
 
 (a) WiUiams v. Jmes, 33 L. J., Exoh. (d) Cuthbertson v. Parsons, 12 0. B. 
 
 297. 30*- 
 
 (J) Martim. v. Temperky, 4 Q. B. 298. (e) MiUigan \. Wedge, 12 Ad. & E. 
 
 (c) Sutler T. Bunter, 7 H. & K. 826 ; 737. 
 31 Law J., Exch. 214. 
 
414 NEGLIGENCE. [CHAP. VIII. 
 
 under seal with certaiti persons to make a portion of the line, and 
 by the contract reserved to themselves the power of dismissing any 
 of the contractors' workmen for incompetence, and the workmen, in 
 constructing a bridge over a highway, negligently caxised the death 
 of a person passing beneath along the highway, by allowing a stone 
 to fall upon him, it was held, in an action against the company by 
 the administratrix of the deceased, that they were not liable (/). 
 And it is immaterial that the defendant lends some of his own 
 men to the contractor, if they are acting substantially as the 
 contractor's servants at the time of the injury {g). But where the 
 defendants, who were occupiers of a bonded Warehouse in Liverpool, 
 employed a master-porter for the purpose of removing some barrels 
 of ilour from their warehouse and lowering. them into a cart, and 
 the master-pOrteT used his own tacMe, and brought and paid his own 
 men ; and, through the negligence of the men or the insufficiency , 
 of the tackle, one of the barrels slipped from the tackle whilst it 
 was being lowered into the cart, and fell upon the plaintiff and 
 injured him, it was held that the defendants were responsible for 
 the injuiy Qi). Here the work, it has been observed, was in effect 
 done hy the defendants themselves at their own warehouse, the 
 workmen, though engaged by the master-pofter, being under the 
 control of the defendants, and acting substantially as their 
 servants («), and it is upon this gfoUfld alone, it seems, that the • 
 above case can be supported (/«). 
 
 After the contract has been properly completed, and the works 
 handed over to the commissioners or persons who have employed 
 the contratitof, the liability of the contractor ceases, and for any 
 subsequent iiijury caused by the natural result of the work the 
 contractor has completed, the commissioners and not the contractor 
 will be responsible ; as where the defendant, under a contract with 
 the Metropolitan Board of Works, opened a highway for the 
 purpose of constrttcting a sewer thereunder, and after finishing the 
 sewer, properly filled in and made good the road, which, however, 
 subsequently subsided, which is the natural result of such opening 
 the road and loosening the materials of which it is composed, and 
 the plaintiff's horse stumbled in one of the holes so caused and was 
 injured (/). 
 
 Negligence of servmits working under huHders, contractors, and 
 
 (/) Reedie v. Land. & N.-W. Rail. Oo. Oo. t, Wah^el4 Board of Hedth. See 
 
 iEich. 344. p. 204. 
 
 ^jr) Murray v. Cmrie, L. E., 6 0. P. (h) Murphy x.CaraUi,Zi'Lam J., 'E^abi. 
 
 2.4. 14/ 
 
 (h) Mrutteson t. Murray, 8 Ad. & E. (I) Hyams t. Webster, L. B., 2 Q. B. 
 
 109- 264; 4 Ibid. 1»8. BanUtt v. BaUr, 34 
 
 (i) Denman, C.J., 12 A.d. & E. 741 ; Law J., Esch. 8, ace. 
 and see ante, p. 184 ; Tfesi Riding Rail. 
 
SECT. 2.] CONTEACTOKS AND SUB-CONTKACTOES. • 415 
 
 sub-contractors. — ^Where work which can lawfully be done without 
 injury to others is placed in the hands of a huilder or contractor, 
 who selects his own workmen and servants for the performance of 
 the work, and directs the manner of doing it, exercising his own 
 judgment in the matter, and having the immediate control over the 
 workmen, such contractor, and not tlie person who employs him, is 
 the person responsible for injuries to strangers from the negligent 
 execution of the work (m). If a person orders his wall or his house 
 to be puUed down, he is not responsible for the negligence of the • 
 workmen employed by the builders for the purpose (ft). And if 
 the work is done under the immediate control and superintendence 
 of a sub-contractor, then the latter is the party responsible for any 
 wrong done by the workmen he employs in the execution of the 
 work. It must not be imderstood, however, that a contractor 
 cannot become liable for the negligence of his sub-contractor. If 
 the contractor personally interferes and gives directions to the 
 latter, or to the workmen employed by him, he would be responsible 
 for the orders given, but he cannot be charged simply on the- 
 ground of his fiUing the character of contractor (o). 
 
 Where a builder had contracted with the committee of a club to 
 make alterations and improvements in the club-house, and prepare 
 and fix the necessary gas-fittings, and the builder made a sub- 
 contract with a gas-fitter to do this latter portion of the work, and 
 the gas-fitter's workmen allowed the gas to escape and cause an 
 explosion, which injured the biitler of the club and his wife, it was 
 held that the gas-fitter, and not the builder, was liable 'for the 
 negligence (_p). 
 
 Voluntary and, involuntary trespasses — Direct arid consequential 
 injuries. — If a squib is thrown amongst a crowd in a public place, 
 and is then tossed from one person to another, the first thrower, arid 
 all who have tossed the squib otherwise than in pure self-defence, 
 are responsible, as we have seen, for the injury it occasions (q). 
 " If A takes the hand of £, and with it strikes C, A is the trespasser 
 and not ^"(r). 
 
 "If," observes , Lord Denman, "I am guilty of negligence in 
 leaving anything dangerous in a place where I know it to be 
 extremely probable that some other person will unjustifiably set it 
 in motion to the injury of a third party, and if that injury should 
 be so brought about, the sufferer may have redress by action against 
 both or either of the two, but unquestionably against' the first. 
 If, for example, a gamekeeper, returning from his daily exercise, 
 
 21 Law J., C. P. 52. Blake v. Thirst, Bac, Abr. T'kbspass, D. 2, anU, pp. 5, 6. 
 
416 NEGLIGENCE. [CHAP. VIII. 
 
 sliould rear his loaded gun against a wall in the playground of 
 schoolboys, and one of, these should playfuUy point the gun at a 
 schoolfellow, and fire it off and maim him, the gamekeeper must 
 answer in damages to the wounded party " (s). If a horse and 
 cart are left standing in the street without any person to watch 
 them, and a person strikes the horse and causes it to back against 
 a shop-window, the owner is liable for the damages, for he must, as 
 we have seen, take the risk of all the consequences that result from 
 the horse being left unattended (t). In such a case the owner, who 
 has left his cart unattended, and the person who struck the horse, 
 are both liable for the injury {t). 
 
 " If I deliver my horse to a smith to shoe, and he delivers him 
 to another smith, who pricks him, I may have an action on the 
 case against the latter, though I did not deliver the horse to him. 
 So if I deliver goods to A, who delivers them to B, to keep to the 
 use of A, and B wastes these goods, I may have an action on the 
 case against B, though I did not deliver the goods to him" (m). 
 
 Joint and separate liabilities.— ^li several co-proprietors of a 
 stage-coach intrust the driving of the coach to one of them, all will 
 be responsible for injuries caused by his negligent driving {x). 
 And if two omnibuses are racing, and one of them runs over a man 
 who is crossing the road and has not time to get out of the way, 
 the injured person has a remedy against the proprietor of either 
 omnibus (y). 
 
 Declarations for injuries from negligence must set forth either 
 an injury to the property or to the person of the plaintiff, or to 
 both. If the injury is an injury to goods and chattels, the 
 declaration must allege them to be the goods and chattels of the 
 plaintiff: for if there is no averment to this effect,, and nothing on 
 the record to show the plaintiff's right or title to the chattels or to 
 the possession of them, there is no cause of action (2). The 
 declaration for an injury to a ship or carriage through the negligent 
 management of another ship or carriage by the defendant or his 
 servants, should set forth the plaintiff's possession of his ship on 
 the high seas or in a certain river, or of his carriage on a certaia 
 highv?ay, and the defendant's possession of another ship on the 
 high seas, or in the same river, or of another carriage on the same 
 highway, and that the defendant navigated his ship or drove his 
 carriage in so negligent a manner, that the defendant's ship or 
 carriage, through his carelessness and mismanagement, ran foul of 
 
 (s) Lynch v. Nurdin, 1 Q. B. 36. (y) Oresswell, J., in Thyrogoods. Bryan, 
 
 («) lUidge v. Goo&min, 5 C. & P. 192. 8 0. B. 121. 
 
 («) Eoll. Abr. 90. Locschmany. Machm, (2) Pritchard \. Lang, 9 M. & W. 666. 
 
 3 Stark. 311, Fvrfmi V, Dawes, Car. * M. 129. 
 (x) Moreton t. Hardirv-^ 4 B. & C. 223. 
 
SECT, 2.] ACTIONS — PLEADINGS. ' 417 
 
 the plaintiff's ship or carriage, and injured the same, and spoiled 
 divers goods and chattels in the said ship, and caused the plaintiff 
 to incur great expense in repairing, &c., and caused the plaintiff to 
 be deprived of the use of his ship, &c., and to lose the profits of a 
 voyage, concludiag with a claim of damages (a). 
 
 If the plaintiff complains of an injuTy to the person, the 
 declaration wiU either be for an immediate injury, such as an 
 assault ■ Qjos^, ch. 15), or trespass ; or a conseq^uential injury, such 
 as the breaking of the plaintiff's leg through the upsetting of a 
 coach negligently driven by the defendant (b), or the loss of the 
 plaintiffs eye through the negligence of the defendant in intrusting 
 a loaded gun to the care of a young and inexperienced person, who 
 carelessly shot off the gun pointed at the plaintiff (c). If the cause 
 of action be a breach of duty, arising ex contractu, the circumstances 
 and the nature of the contract or employment creating the duty 
 must be truly set forth on the face of the declaration, and be 
 supported by the evidence at the trial (d). 
 
 A declaration alleging that the plaintiff was the servant of the 
 defendant, and that the defendant ordered the plaintiff to ascend 
 and use certain scaffolding, &c., well knowing it to be dangerous 
 and unfit for use, and that the plaintiff, in obedience to the order 
 of the defendant, used the scaffolding, &c., believing it to be safe 
 and fit for use, and not knowing the contrary, and not having the 
 same means that the plaintiff liad of forming a correct opinion upon 
 its sufficiency and safety, and that the scaffolding, &c., by reason of 
 its being unsafe and unfit for use, gave way with the plaintiff upon 
 it, and precipitated the plaintiff upon the groimd, &c., discloses a 
 good cause of action (e). 
 
 If the plaintiff complains of injuries received by the upsetting 
 of a coach in which he was riding as a passenger, the declaration 
 should allege that the defendant was the proprietor of a stage-coach, 
 and that the plaintiff was received by him as a passenger, to be 
 carried safely for hire, and that the defendant did not take proper 
 care in the driving and management of the coach, but suffered the 
 coach to be overloaded, &c., stating the facts constituting the act of 
 negligence, and the injury resulting to the plaintiff, and claiming 
 damages. 
 
 The allegation in the declaration that the plaintiff was to be 
 safely carried, does not mean that he is to be conveyed safely ab- 
 solutely, like a bale of goods, but that he is to be carried with due 
 care (/). 
 
 (a) Leame v. Bray, 3 East, 593. (e) Wiliiams v. ClovgJi, 3 H. & N. 258 ; 
 
 (b) Curtis T. Brinkwater, 2 B. & Ad. 27 Law J., Exch. 325. 
 
 169. (/) Harris v. Oostwr, 1 C. & P. 636. 
 
 (c) Dixon v. Belt, 5 M. & S. 198. A^on v. Heaven, 2 Esp. 585 See ante, 
 
 (d) Lopes T. De Tastet, 4 Moore, 279 ; pp. 382—3. 
 ante, p. 14. 
 
418 NEGLIGENCI;. [CHAP. Till. 
 
 Plea of not guilty. — The plea of not guilty in actions for injuries 
 caused by the negligence of the defendant, operates as a denial only 
 of the wrongful act alleged to have been committed by the defen- 
 dant, and no defence other than such denial is admissible under 
 that plea. All other pleas in denial must take issue on some 
 particular matter of fact alleged in the declaration (^f). If the 
 plaintiff complains of damage done to his goods and chattels, or 
 personal property, through 'the negligence of the defendant or his 
 servants, the plea of not guilty operates as a denial only of the 
 defendant's having committed the wrong alleged by damaging the 
 goods mentioned, but not of the plaiiitiff's property therein (A). 
 The defendant, cannot, therefore, under the plea of not guilty, show 
 that the damaged chattel did not belong to the plaintiff, or that it 
 was not in his possession at the time of the injury (i). But where 
 the plaintiff's own negligence is the immediate cause of the injury, 
 or has contributed to the mischief of which he complains, the 
 defence is admissible under the plea of not guilty (/<;). And if the 
 injury was the result of an inevitable accident, and was not occa- 
 sioned by any default on the part of the defendant, the defendant 
 will be entitled to a verdict under a plea of not guilty. This has 
 been held to be the case where a horse, being frightened by a clap 
 of thunder, ran away with the defendant, and knocked down the 
 plaintiff ([) ; also, where a horse, being frightened by the nois^ and 
 rapid approach of a butcher's cart, furiously driven, became un- 
 governable, and ran against and killed another horse, notwithstand- 
 ing all the efforts of the defendant to control the animal (m). But 
 where an action was brought against the defendant for running 
 over the plaintiff with a horse and cart, and breaking his leg, it was 
 held that the defendant could mot, under a plea of not guilty, show 
 that there was no negligence on his part, but that the plaintiff 
 accidentally slipped from the pavement at the moment when the 
 cart was passing, and had so got his leg under the wheel. " The 
 authorities show," observes Lord Denman, " that if the accident had 
 resulted entirely from a superior agency, that would have been a 
 defence, and might have been pleaded under the general issue ; but 
 a defence admitting that the injury resulted from an act of the 
 defendant is not so proveable " (to). 
 
 Uvidence at the trial — Proof of negligence. — Proof of the com- 
 mission by the defendant, or his servants, of the injury of which 
 
 {g) Keg. Gen. Hil. Term, 16 Vict. ; 1 (Tc) Bridge v. Grand June. Rail. Co., 3 
 
 Ell. & Bl. App. Ixxxi., Ixxxii. ; ;post, oh. M. & W. 244. Eoldm T. Lim. Oas Co., 3 
 
 21. C. B. 1 ; 15 Law J., C. P. 301. 
 
 (Ji) Eeg. Gen. Hil. Term, 16 Vict. ; 1 (I) Gibbons v. Pepper, 1 Ld. Eaym. 38; 
 
 Ell. & Bl. App. Ixxxi., Ixxxii. 2 Sali. 638. 
 
 (i) Hart T. Crowley, 12 Ad. & E. 378. (m) Waheman v. JtoUnion, 1 Bing. 213. 
 
 Taverner t. UtUe, 5 B. N. C. 678. (n) Hall v. Feamley, 3 Q. B. 921. 
 
SECT. 2.] EBMEDY BY ACTION— EyiDENCE. 419 
 
 the plaintiff complains, very generally carries with it 'primA fade, 
 proof of negligence, and it is for the defendant to show that the 
 injury was the result of inevitable accident {ante,, pp. 2, 380, 383, 
 384), or that it was occasioned by the negligence or miscondnct of 
 the plaintiff himself {ante, pp. 19 — 22), or by circumstances over 
 which the defendant had no control {ante, pp. 383, 384). So the 
 fact that a barrel from the defendant's warehouse, or a brick from 
 the defendant's bridge, fell upon the plaintiff, who was passing along 
 the street, or under the bridge, is sufficient to raise the presumption 
 of negligence by the defendant (o). Where the declaration of the 
 cause of action stated that the defendant struck the plaintiff's 
 cow divers blows, by reason whereof she died, it was held that 
 it was sufficient to prove that the cow received such injury 
 at the hands of the defendant, that it became necessary to kill 
 her {jp). 
 
 Where an Act of Parliament directed a water company to lay 
 down pipes, with plugs in them, as safety-valves to prevent the 
 bursting of the pipes, and the plugs were properly made, and of 
 proper material, aoid a severe frost came and prevented the plugs 
 from acting, and the pipes burst and flooded the plaintiff's cellar, it 
 was held that there was no evidence of negligence against the 
 company (§'). 
 
 A .declaration which charges the defendant with having negli- 
 gently driven his cart against the plaintiff's horse, or with having 
 so negligently kept his fire that it spread to and consumed the 
 plainitiff's corn, is supported by proof that the defendant's servant 
 negligently drove the cart, or lighted and kept the fire (r), ante, 
 pp. 23 — 25, 247, 386). But in order to make the master respon- 
 sible, it is not sufficient, to show that the servant has been guilty of 
 negligence in driving, it must be ,showin that the servant was driv- 
 ing at the time with the authority of the master on his business ; 
 bnt it is not necessary to prove any express request or order by the 
 m9,ster to the servant to use the master's horse or carriage. If, at 
 the time of the injury, the servant appears to have been driving 
 his master's carriage in the ordinary course of his employment, the 
 master wiU be primd facie responsible (.s). Where the plaintiff was 
 injured by the negligence ©f a person left in charge of a ship lying 
 in dock, the production of the ship's register was held to be prima 
 facie evidence that the ship-keeper was the servant of the person 
 
 (o) Byrne v. Boodle, 33 Law J., Exch. {q) Blylh v. Birmingham Water Co., 
 
 13 Scott v. London Dock Co., ante, 11 Exch. 781. 
 
 p 2M Kmmeiu v. Lond. :m,d -Bnghton {r) Brucher v. Fremont, 6 T. E. 659. 
 
 %wy L E., 5 Q. B. 311 ; 6 Jbid. 759. TwUrmOe v. Stampe, 1 Ld. Eaym. 264. 
 
 See Welfa/re v. Brighton Mmj. Co., L. E., Croft v. Alison, 4 B. & Aid. 590. 
 
 4 Q B 693 W ^«**«" ^- ^^' 2 C. B., N. S. 613 ; 
 
 ( p) ffancoch v. Southall, 4 D. & E. 202. 26 Law J., 0. P. 237. 
 
 ^■^ ' E E 2 
 
420 NEGLIGENCE. [CHAP. VIII. 
 
 appearing on the register as owner, and, therefore, that such owner 
 was responsible (t). 
 
 If the action is brought under the statute 9 & 10 Vict. c. 93, 
 for compensating the families of persons killed by accident {ante, 
 p. 408), it must be proved that actual pecuniary damage has been 
 sustained by the relatives of the deceased person, and that the 
 plaintiff, who sues as administrator, or the person for whose benefit 
 the action is brought, had some pecuniary interest in the life of the 
 person killed. It was intended by the Act to give compensation for 
 damage actually sustained, and not to enable persons to sue in 
 respect of some imaginary damage, and so punish those who are 
 guilty of negligence by making them pay costs ; but the loss of 
 anticipated benefit, founded on a reasonable and just expectation 
 of pecuniary advantage derivable from the continuance of the life 
 of the deceased, may be the subject-matter of damage, and a suffi- 
 cient foundation for an action (m). 
 
 If the plaintiff complains of a breach of duty on the part of 
 the defendant, in his character of an attorney, it must be clearly 
 shown that it was the duty of the defendant to do that which he 
 is charged with having neglected. If the matter is at aU left in 
 doubt, he is clearly entitled to the benefit of the doubt (x). 
 
 Proof of retainer arid employment. — Where an action for negli- 
 gence was brought agaiast a surgeon, and it was proved that the 
 plaintiff's mother sent for the defendant, and that her father paid 
 him, it was held that the plaintiff's submitting to the defendant's 
 treatment was sufficient proof that the defendant had been employed 
 by the plaintiff {y). 
 
 Proof of the ownership of chattels damaged hy negligence. — ^Where 
 the plaintiffs hired a chariot for the day, appointed the coachman, 
 and furnished the horses, it was held that they were properly 
 described as owners and proprietors of the carriage in a declaration 
 against a defendant for an accident arising from his servant's 
 negligence iu driving against the chariot (z). 
 
 Evidence for the defence (a) — Questions for the jury. — If it appears 
 that there was negligence on the part of the plaintiff as weU as on 
 the part of the defendant, 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, that, 
 
 («) Sibbs V. Boss, L. E., 1 Q. B. 534. (z) Croft v. AlUon, 4 B. & Aid. 590. 
 
 (m) Duckworth v. Johnson, 4 H. & N. (a) Admissions made by the plaintiff, 
 
 ^^pv „, ' by his conduct, that he has a bad case, 
 
 (x) Chapman v. Van Toll, 8 BU. & Bl. are admissible for the defence, e.g., his 
 
 396 ; 27 Law J., Q. B. 1 ; ante, pp. 403— asking a person not present at the acci- 
 
 ^*'?\ ^, , „ '^®°* ^° come forward and give evidence : 
 
 {y) GladweU v. SteggaU, 8 So. 67; 5 B. Moria/rty t. L., C, & D. Rvm., L. E„ 5 
 
 N.CV733. Q. B.314. "' 
 
SECT. 2.] ACTIONS — DAMAGES IlECOVEEABLE. 421 
 
 but for such negligence on his part, the misfortune would not have 
 happened. In the first place the plaiutiff would be entitled to 
 recover, in the latter not " (&). 
 
 In an action for damage resulting from the negligent driving of 
 the defendant's servant, the proper question for the jury is, whether 
 at the time of the commission of the injury the servant was driving 
 on his master's business and with his authority (c). 
 
 In actions against an attorney for negligence, it is the province 
 of the judge to inform the jury for what species or degree of neg- 
 ligence an attorney is properly answerable, and what duty is cast 
 upon him by law, or by the practice of the court in the particular 
 instance, and to leave them to say whether the attorney has 
 performed his duty ; and in case of non-performance, whether the 
 ■^ tieglect was of that sort or degree which is culpable or venial in 
 the sense of sustaining or not sustaining an action (c^. 
 
 Where the injury complained of has resulted from negligence 
 in leaving instruments of danger, such as a horse and cart, un- 
 attended in a public thoroughfare or place of public resort, it is for 
 a jury to inquire whether the horse was vicious or steady, whether 
 the horse was left for an unreasonable time, and whether there was 
 any excuse for leaving it at aU unattended, whether assistance could 
 have been procured to watch the horse, whether the street was un- 
 frequented or thronged, and especially whether large numbers of 
 young children might reasonably be expected to be about the 
 spot (e). 
 
 The damages recoverable wUl mainly depend upon the nature 
 and character of the injury, whether it is the mere result of such 
 negligence as amounts to little- more than accident, or whether it 
 is of a wilful or insolent character (/). In cases of injuries to 
 chattels from negligence, the measure of damages is the" actual 
 deterioration in the value of the chattel, and if the owner has been 
 deprived of the use of the chattel, and has been obliged to hire 
 another chattel, and been put to expense, and has sustained special 
 damage, which is the natural and necessary result of the wrongful 
 act, such damages are recoverable if claimed in the plaintiff's 
 declaration. In an action for an injury to a horse from negligent 
 driving, it was held that the proper measure of damages was the 
 keep of the horse at a 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 time of the" commencement of the action (g). 
 
 (b) Tuff V. Woman, 2 C. B., N. S. ■ {d) Hunter v. Caldwell, 10 Q. B. 82, 
 no ; 27 Law J., 0. P. 322 ; ante, pp. 19 Hatch v. Lewis, 1 F. & F. 467. 
 
 22. W Lynch r. NwrdAn, 1 Q. B. 38 ; ante, 
 
 (c) Fatten, v. Rea, 2 0. B., N. S. 607 ; pp. 19—21. 
 
 26 Law J., C. P. 235. (/) Emblem T. Myers, 6 H. & N. 54. 
 
 ((]) Hucjlies V. Quentim, 8 C. & P. 703. 
 
422 NEGLIGENCE. [CHAP. VIII. 
 
 Damages not too remeie. — "Where tteough tlie default of a coacli 
 proprietor in neglecting to provide proper means of conveyance a 
 passenger is placed in so perilous a position as to render it prudent 
 for Mm to leap from the coach, whereby his leg is broken, the pro- 
 prietor will be responsible for the damage, though the coach be not 
 actually overturned (h). But if the negligence of the defendant 
 only cause some personal inconvenience to the plaintiff, and the 
 injury is proximately caused by the plaintiff unreasonably trying 
 to remedy such inconvenience, the defendant will not be liable. 
 Thus, where from a defect in the latch of a railway carriage the 
 door ilew open, and a passenger, in endeavouring to shut it, fell 
 out, it was held that the company were not responsible (t). 
 
 Negligent management ot navigation of vessels: — The liability of 
 a shipowner for damage done by the negligent management of his 
 vessel, causing a collision with another vessel, is, as we have seen, 
 limited to th& value of his vessel and freight at the time of such 
 collision : and if the vessel instantly founders, he is not thereby 
 exempted from liability (/)„ The value is to be taken at the 
 moment of collision (k). Where the plaintiff, in consequence of 
 the collision, has been obliged to avail himself of the assistance of 
 persons who demand an exorbitant sum foot salvage, and it is 
 reasonable and prudent to resist this demand, and costs are incurred 
 in resisting it, the plaintiff will be entitled to recover these costs, if 
 he claims them in his declaration as part of the damages 0. The 
 proceedings in the Court of Admiralty in cases of collision are, as 
 we have seen, generally speaking, against the ship (ante, p. 392) ; 
 and where both vessels are found to blame, and the Merchant 
 Shipping Act does not preclude the recovery of damages {ante, 
 p. 391), the shipowners can only recover a moiety of the damage 
 which they have respectively sustained ; and the same rule applies 
 to actions by the owners of the cargoes on board the delinquent 
 ships (m). Nor can the one recover salvage from the other in such 
 a, case (n). 
 
 Damages when the plaintiff is insa/red against loss, or has received 
 full indemnity under a wntract of inswrance. — The recovery by the 
 plaintiff of full compensation for the loss or damage his. property 
 has sustained under a contract with insurers, cannot be given in 
 evidence in reduction of damages in an action against the wrong- 
 doer who has done the mischief. The plaintiff's contract with 
 
 (h) Jones T. Boyce, 1 Stark. 493, cited (j) Brown v. WUhinson, 15 M. & "W. 
 
 in WiUon t, Newport Dock Co., L. R., 1 391. 
 Excli. 187. (i) Tke Mwry Oarolim. 3 W. Eob. 101. 
 
 (i) Adams v. Lancashire amd Yorhshire (I) TindaU v. Bell, 11 M. & W. 228. 
 
 Sm/., L. E., 4 C. B, 739. See Ee United (m) The Milam, ante, p. 393. 
 
 Service Co., li. K, 6 Oh. App, 212. (n) The CarpeOa, L. K., 1 Adm. & Eccl. 
 
 356. 
 
SECT. 2.] DAMAGES IN CASE OE DEATH. 423 
 
 the underwriters or insurers is res inter alios acta, of wHcli the 
 defendant who is sped for negligence cannot avail himself. If it 
 were not so, the wrong-doer would take the benefit of a policy of 
 insurance without paying the prenaium (o). A plaintiff, however, 
 who has received a fuL. indemnity for his loss under a contract of 
 insurance, and has afterwards recovered compensation in an action 
 for damages against the wrong- doer, is not entitled to a double 
 satisfaction, but is bound to hand over the damages to the insurer 
 or underwriter, who is the person really damnified by the wrongful 
 act {p). 
 
 Damages recoverable iy personal representatives in cases of death 
 from negligence. — In all actions by the personal representatives of 
 persons killed by negligence, brought under the 9 & 10 Vict. c. 93 
 {ante, pp. 408, 420), to recover damages proportioned to the injury 
 resulting from his death to«the persons for whose benefit the action 
 is brought, the jury, in assessing the damages, must confine them- 
 selves to injuries of which a pecuniary estimate may be made, and 
 cannot lawfully increase them by adding a solatium to those persons 
 in respect of the mental sufferings occasioned by such death. 
 They cannot, therefore, lawfully inquire into the degree of mental 
 anguish which each member of the family has suffered from the 
 bereavement, and cannot take into consideration the mental suffer- 
 ings of a widow or child for the loss of a husband or a parent {cj). 
 It is clear, also, that the damages are not to be given merely in 
 reference to the loss of any legal right against the deceased, which 
 might have been turned to profit if he had lived, and which has 
 been lost by his death, for the damages recovered are to be dis- 
 tributed amongst the relations only, and not to all individuals sus- 
 taining loss ; and, accordingly, the practice has been to ascertain 
 what benefit could have been claimed from the deceased, if he had 
 lived, by the person seeking to obtain damages ; and if the latter 
 can show that he had a reasonable expectation of pecuniary benefit 
 from the continuance of the life, and is also within the requisite 
 degree of relationship, his claim may fairly be considered by the 
 jury in assessing the amount of damages (r). Thus the loss of the 
 benefit of education and of the comforts and conveniences of life, 
 and of an expected pecuniary provision, may, as we have seen, be 
 taken into consideration ; and it is for a jury to say, taking into 
 account all the uncertainties and contiagencies of the particular 
 case, whether there was such a reasonable and weU-founded expec- 
 tation of pecuniary benefit as can be estimated in money, and so 
 
 (o) Yates v. Wh)te, i B. N. 0. 283. Q. B. 233 ; 18 Q. B. 93. Armsworth v. 
 
 Ip) Ante, p. 258 ; and post, eh. 22. S. E. Ea/il. Co., 11 Jur. f 59. 
 
 (o) Blake v. Mid. Eml. Co., 21 Law J., (r) Fmnhlm v. S.-E. Rail. Co., 3 H. & 
 
 N. 214. 
 
424 NEGLIGENCE. [CHAP. VIII. 
 
 become the subject of damages (s). Ifo damages can be given in 
 respect of funeral expenses and mourning, there being no language 
 in the statute referring to these expenses and rendering them 
 recoverable (t). 
 
 (a) Pym v. Qt. North. Rail. Co., omte, (t) Daltm T. S.-E. Mil. Co., 4 C. B., 
 
 p. 409. N. S. 296 ; 27 Law J., C. P. 227. 
 
i2i 
 
 CHAPTER IX. 
 
 OP NEGLIGENCE ON THE PART OF BAILORS AND BAILEES- 
 DETENTION AND LOSS OP CHATTELS BY BAILEES (a). 
 
 Section I. — Of negligence on the part of 
 bailors and. bailees. — Bailments of cliat- 
 tels — Negligence of bailees — Loss of 
 chattels by workmen to whom they 
 have been delivered — Negligent keep- 
 ing of goods by warehousemen, whar- 
 fingers, &c. — Losses by robbery and 
 theft — Losses occasioned by the negli- 
 gence of the bailor — Loss of cattle — 
 Liabilities of agisters of cattle — De- 
 posit of goods under a special contract 
 — Deposit of luggage and parcels at 
 railway stations — Delay in delivery — 
 Loss of goods by persons who have 
 received them to be carried, but who 
 are not common carriers — Limitation 
 of the liability of shipowners in respect 
 of the carriage of merchandise and 
 chattels — Detention of chattels by 
 bailees claiming lien — Partictdar liens 
 and general liens— Ordinary lien of 
 workmen and artificers — Persons 
 against whom a lien may be claimed — 
 General lien — ^Lien of factors, brokers, 
 bankers, attorneys, solicitors, &e. — 
 
 Lien for freight — Lien of consignees 
 — Notice that goods will be held sub- 
 ject to general lien — Custom of trade 
 — Extinguishment of Kens — Detention 
 of chattels by one of several joint- 
 owners or tenants in common — He- 
 delivery of chattels to one of several 
 bailors. 
 Section II. — Of actions for the negligent 
 management, negligent keeping, and un- 
 lawful detainmg of goods and chattels. 
 — Parties to be made plaintiffl — Joint 
 and separate rights of action — Power 
 of bailees to compel rival claimants to 
 interplead and establish their title — 
 Declarations against bailees for negli- 
 gence and breach of duty — Payment 
 of money into court — Pleadings, de- 
 fences, evidence, and damages recover- 
 able — Orders for the delivery of the 
 specific thing detained — Assessment 
 of the value thereof— Assessment of 
 damages, where all or part of the things 
 detained have been delivered up after 
 action. 
 
 SECTION I. 
 
 OF NEGLIGENCE ON THE PART OF BAILORS AND BAILEES — DETENTION 
 AND LOSS OF CHATTELS BY BAILEES. 
 
 Of lailments of chattek.—" Them are," observes Holt, C.J., 
 " six sorts of bailments. The first is a bare, naked baHment of 
 CToods delivered by one man to another, to keep for the use of the 
 bailor ; and this I call a depositum, and it is that sort of bailment 
 which is mentioned in Southcote's case. The second sort is, when 
 o-oods or chattels that are useful are lent to a friend, gratis, to be 
 
 (a) See further, as to bailments, Addison on Contracts, ch. 12, 6th ed. 
 
426 NEGLIGENCE. [OHAP. IX. 
 
 used by him ; and this is called commodatum, because the thing is 
 to be restored in specie. The third sort is, when goods are left 
 with the bailee, to be used by him for hire ; this is called locatio 
 et conductio, and the lender is called locator, and the borrower 
 conductor. The fourth sort is, when goods or chattels are delivered 
 to another as a pawn, to be a security to him for money borrowed 
 of him by the bailor ; and this is called, in Latin, vadium^ and in 
 English, a pawn or a pledge. The fifth sort is, when goods or 
 chattels are delivered to be carried, or sonietMng is to be done 
 about them for a reward, to be paid by the person who delivers, 
 them to the bailee, who is to do the thing about them (&). The 
 sixth sort is, when there is a delivery of goods or chattels to some- 
 body who is to cany them, or do something about them gratis, 
 without any reward for such his work or carriage " (c). 
 
 Negligence of hailors. — It is the duty of every bailor of 
 dangerous, explosive, and combustible substances, knowing the 
 dangerous nature of them, to take care that the danger is commu- 
 nicated to a bailee to whom they are delivered to carry, to take 
 care of, or to keep ; and if the bailor fails to make the necessary 
 disclosure, he is responsible if an accident occurs, and damages are 
 sustained by the bailee or his servant (d). 
 
 Of the negligent 'keeping of chattels hy lailees. — " As to the first 
 sort of 'bailment," observes Holt, C.J., "where a man takes goods 
 into his custody, to keep for the use of the bailor, such a bailee is 
 not answerable if they are stole without any fault in hioa, neither 
 will a common neglect make him chargeable ; but he must be 
 guilty of some gross neglect. If he keeps the goods bailed to him 
 but as he keeps his own, though he keeps his own but negligently, 
 yet he is not chargeable for them, for the keeping them as he keeps 
 his own is an argument of his honesty " (e). But if he is guilty of 
 gross negligence, it is no answer to say that he lost his own goods 
 at the time he lost the goods of the bailor (/). 
 
 "As to the second sort of bailment — viz., commodatum, or 
 lending gratis — the borrower is bound to the strictest care and 
 diligence to keep the goods, so as to restore them back again to the 
 lender ; because the bailee has a benefit by the use of them, he will 
 be answerable if he be guQty of the least neglect ; as if a man 
 
 (6) If property is delivered on a eon- Australicm Co. v. RandeU, L. R, 3 P. 0. 
 
 tract for an equivalent in money, or some Ca. 101. 
 
 other eommodity, and not for the return (c) Ooggs v. Bernvrdi 1 Smith's L. C, 
 
 of the specific goods, e.g., where a fanner 6th ed. 177. 
 
 sends com to be ground, to be mixed up (c?) Farrcmt v. Bwmes, anU, p. 17. 
 
 by the miller when ground with corn (e) Holt, C.J., Ooggs v. Bernard, 2 Ld. 
 
 belonging to other people, the farmer Eaym. 909. Walker y. Ouwrantm Assoc, 
 
 to have an equivalent quantity in return, 18 Q. B. 286 ; 21 Law J., Q. B. 257. 
 that is a sale and not a bailment : South (J) Doormcm v. JmUns, 2 Ad. & E. 
 
 258. Seei3p«J, p. 432, 433. 
 
SECT. l.J BOEEOWEES AND LENDEEg OF CHATTELS. 427 
 
 should lend another a horse to go in one direction, or for one 
 month, and the bailee goes in another direction, or keeps the horse 
 above a month, and an accident happen to the horse, the bailee will 
 be chargeable, because he has made use of the horse contrary to the 
 trust he was lent to him under ; and it may be, that^ if the horse 
 had been used no otherwise than as he was lent, that accident 
 would not have befaUen him. If the bailee put the horse in his 
 stable, and he were stolen from thence, the bailee shall not be 
 answerable for him ; but if he or his servant leave the house or the 
 stable-doors open, and thieves take the opportunity of that and 
 steal the horse, he will be chargeable, because the neglect gave the 
 thieves the occasion to steal the horse. Bracton says the bailee 
 must use the utmost care, but yet he shall not be chargeable where 
 there is such a force as he cannot resist " {g). 
 
 " The duties of the borrower and lender," observes Coleridge, J., 
 "■ are in some degree correlative. The lender must be taken to 
 lend for the purpose of a beneficial use by the borrower ; the bor- 
 rower, therefore, is not responsible for reasonable wear and tear, 
 but he is for negligence, for naisuse, 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 lender lends for beneficial use, he must 
 be responsible for defects in the chattel with reference to the use 
 for which he knows the loan is accepted, of which he is aware, and 
 owing to which, directly, the borrower is injured. ' Adjuvari quippe 
 nos, non decipi, beneficio oportet,' is the maxim which Story 
 borrows from the ' Digest ; ' and Pothier is express to the same 
 effect, citing, as Story does also,, the instance, ' Qui sciens vasa 
 vitiosa commodavit, si ibi infusum vinum, vel oleum corruptum 
 efFasumve est, condemnandus eo nomine est.' This is so consonant 
 to reason and justice that it has become part of our law. If, there- 
 fore, the owner of a horse, knowing it to be vicious and unmanage- 
 able, and highly dangerous to ride, should lend it to one who is 
 ignorant of its bad qualities, and conceals them from him, and the 
 rider, using ordinary care and skill, is thrown and injured, the 
 lender would be responsible. By the necessarily implied purpose 
 of the loan, a duty is contracted by the lender towards the borrower 
 not to conceal from him those defects, known to the lender, which 
 may make the loan perilous to hini " (h). In the absence of aU 
 proof of knowledge by the lender of the defect which caused the 
 injury, there would of course be no cause of action against 
 him (i). 
 
 (9) Ooggs V. Sernard, 2 Ld. Kaym. derland, 6 H. & N. 565; 30 Law J., Exch. 
 
 911. 127. 
 
 (K) Slahemore v. Bristol and Exeter (i) MacOwrtlAj v. Yowng, 6 H. & N. 
 
 SaiH. Co., 8 EU. & BI. 1051 ; 27 Law J., 329 ; 30 Law J., Bxcb. 227. 
 Q. B. 167. Cmky v. Ma/yor, &e., ofSvm- 
 
428 NEGLIGENCE. [OHAP. IX. 
 
 " As to the third sort of bailment, scilicet locatio, or lending for 
 hire, in this case the bailee is also bound/' observes Lord Holt, "to 
 take the utmost care, and to return the goods when the time of 
 hiring is expired ; for when goods are let out for reward, the hirer 
 is bound to use such care as the most diligent father of a family 
 uses, and if he uses that he shall be discharged. But every man, 
 how diligent soever he be, being liable to the accident of robbers, 
 though a diligent man is not so liablp as a careless man, the bailee 
 shall not be answerable if the goods be stolen" {j). These expres- 
 sions of Lord Holt, making a hirer answerable to the same extent 
 as a borrower^ have been shown by Sir W. Jones to be too strong, 
 the hirer being bound only to take such care as a prudent man 
 would take of his own property (Ic). 
 
 The owner must stand to all the ordinary risks to which the 
 chattel is naturally liable, but not to risks occasioned by negligence 
 or want of ordinary caution on the part of the hirer. If a carriage, 
 for example, let to hire, breaks down on the ordinary public 
 thoroughfare, through the badness of the road, or is injured by a 
 flood or inundation, the owner must bear the loss, although the 
 carriage was driven by the servants and hordes of the hirer. But 
 if the hirer had gone oiit of his way to meet the danger — if he 
 had travelled by unusual and difficult roads, or crossed a plain 
 subject to floods, when he might have kept the high ground, and 
 been safe, he must make good the loss that has been occasioned 
 thereby. If the owner sends his own postillion or coachman 
 to drive the carriage, the hirer is discharged from all attention 
 to the horses and the risks of the road, and is bound only to take 
 ordinary care of the glasses and inside of the carriage whUst 
 he sits in it, unless he of&ciously interferes and gives orders, and 
 takes the management and direction of the vehicle into his own 
 hands (Q. If a horse is hired as a saddle-horse, the hirer has no 
 right to use it in a cart, or as a beast of burden. If it is hired to 
 go to Eichmond, he has no right to go with it to York; and if, 
 during such misuser, a loss occurs, the hirer will be responsible 
 therefor. 
 
 If a horse hired for a journey is taken ill on the road, and the 
 hirer calls in a. farrier, he will not be responsible if the horse dies, 
 although the death may have been occasioned by the injudicious 
 treatment of the latter ; bu.t if the hirer neglects to avail himself 
 of proper advice and assistance, or chooses ignorantly to prescribe 
 himself, and from unsldlfalness gives the horse improper medicine, 
 
 (i) Om^ T- Bernard, 2 Ld. Eaym. (1) Jones on Bailments, 88 ; Pothier 
 
 909. , LouAGE, No. 106, 190 ; Tr. des Oblig. 1, 
 
 (h) Jones on Bailments, 86. 543. 
 
SECT. l.J PAWNORS AND PAWNEES. 429 
 
 and the horse dies, he is liable to the owner for the loss (m). It is 
 of course the primary duty of the hirer, in the absence of an 
 express stipulation to the contrary, to supply an animal hired by 
 him with suitable food during the time it is intrusted to him for 
 use ; and if a hired horse is exhausted, or becomes ill, and refuses 
 its food, and the hirer notwithstanding pursues his journey, and by 
 so doing injures or kills the horse, he will be responsible therefor 
 to the owner (n). 
 
 "As to the fourth sort of bailment," says Lord Holt, "viz., 
 vadium, or a pawn, if the pawn be such as will be the worse for 
 using, the pawnee cannot use it, as clothes, &c. ; but if it be such 
 as will be never the worse, as jewels pawned to a lady, she might 
 use them ; but then she must do it at her peril : for whereas, if she 
 keeps them locked up in her cabinet, if her cabinet should be 
 broken open, and the jewels taken from thence, she would be 
 excused ; if she wears them abroad, and is there robbed of them, 
 she'wOl be answerable. And the reason is, because the pawn is in 
 the nature of a deposit, and is not liable to -be used. But if the 
 pawn be of such a nature that the pawnee is at any charge about 
 the thing pawned to maintain it, as a horse, cow, &c., then the 
 pawnee may use the horse in a reasonable manner, or milk the 
 cow, &ic., in recompense for the meat. And as to neglects for which 
 the pawnee shall make satisfaction, Bracton tells us that if a 
 creditor takes a pawn he is bound to restore it upon payment of 
 the debt ; but yet, if the pawnee uses true diligence iu keeping of 
 the pawn (o), it is sufficient, and, notwithstanding the loss of it, he 
 may resort to the pawnor for his debt. And the true reason of aU 
 these cases is, that the law requires nothing extraordinary of the 
 pawnee, but only that he shall use an ordinary care for restoring 
 the goods (p). But, indeed, if the money for which the goods 
 were pawned be tendered to the pawnee before they are lost, then 
 the pawnee shall be answerable for them, because the pawnee, 
 by detaining them after the tender of the money, is a wrong- 
 doer ; and a man that keeps goods by wrong must be answerable 
 for them at aU events, for the detaining of them by him is the 
 reason of the loss. The same law holds in relation to goods 
 found" (§'). Should the pawnee dispose of the goods under a 
 power of sale, he will be liable for gross negligence in conduct- 
 ing the sale, by which the goods are disposed of at an inadequate 
 value (r). 
 
 (m) Deam v. Keate, 3 Oampb. 4. (p) See ShacIceU v. West, 2 BU. & EU. 
 
 (n) ffandford v. Palmer, 5 Moore, 79 ; 328. ' 
 2 B. & B. 359. Bray v. Mayne, 1 Gow, (q) As to pledges to pawnbrokers, see 
 
 I^. p. 0. 1. Addison on Contracts, 6th ed., 279—293. 
 
 lo) See Donald v. Suchlimg, post, p. 450 {r) Mauglian v. Sharpe, 34 Law J., 0. 
 
 P, 19 ; seats, if he be mortgagee, S, C, 
 
430 NEGLIGENCE. [CHAP. IX. 
 
 "As to the fiftli sort of bailment," says Lord Holt, "viz., a 
 delivery to carry, or otherwise manage, for a reward to be paid to 
 the bailee, those cases are of two sorts : either a delivery to one 
 that exercises a public employment, or a delivery to a private 
 person. First, if it be to a person of the first sort, and he is to 
 have a reward, he is bound to answer for the goods at all events. 
 And this is the case of the common carrier, common hoyman, 
 master of a ship, &c. " {post, ch. 10). " The second sort are bailees, 
 factors, and such lilie ; and though a bailee is to have a reward for 
 his management, yet he is only to do the best he can, and if he be 
 robbed, &c., it is a good aceoiiint." 
 
 " As to the sixth 'sort of bailment, it is to be taken that the 
 bailee is to have no reward for his pains, and that by his iM- 
 management the goods are spoiled. Then the bailee, having 
 undertaken to manage the goods, and having managed them ill, 
 and so by his neglect a damage has happened to the bailor, the 
 bailee is answerable. It is an obligation which arises ex mandato. 
 It is what we call in English, ducting by commission. And if a 
 man acts toy commission for another gratis, and in the executing his 
 commission behaves himself negligently, he is 'amswerable ; and 
 the reasons are, first, because in such a case a neglect is a deceit to 
 the bailor, for when he intrusts the bailee, upon his undertaking to 
 be careful, he has put a fraud upon the plaintiff by being negligent, 
 his pretence of care being the persnuasion that induced the plaintiff 
 to trust him. Aimd ,a breach of such .a trust, undertaken voluntarily, 
 will be a good ground for lan action. A strong case to this matter 
 was an action against a man who had undertaken to keep an 
 hundred sheep, for letting them be drowned by his default. And 
 there the reason of the judgment is given : because, when the party 
 has taken upom him to keep the sheep, and after suffers them to 
 perish by his default, inasmuch .as he has taken them, and has 
 them in his custody, if after he does not look to them, am action 
 lies, And if a maa will enter upon the thing, and take the trust 
 upon himself, and miscarries in the performance of the trust, an 
 action will lie against him for that; though nobody could have 
 compelled him to do the thing" (s). A banker, the gratuitous 
 bailee of a box belonging to his customer, and containing secmities, 
 is not liable for the loss of the box, by the theft of his clerk, unless 
 he has omitted to take some precaution which a reasonable and 
 prudent man would have taken of his own property (t). 
 
 Where a bystander was asked by the owner of a horse to get 
 on the horse and ride it, for the purpose of showing it off for sale, 
 
 '(«) 'Coggs V. Bema/rd, 2 Ld. Eaym. 909; (t) <Oiblm v. McMvUen, 38 Law J., P. 
 
 1 Smith's L. C, eth ed. 177. Dooirman C. 26; L. R, 2 P. C. Oa. 317. See ante, 
 T. Jenkins, 2 Ad. & B. 262. p. 407. i n y, ^ ..t^^v^ ^n ^ 
 
SECT. 1.] THEFT BY SERVANTS OF BAILEE. 431 
 
 and the bystander recklessly and carelessly rode the horse over 
 very slippery and dangerous ground, and threw it down and injured 
 it, it was held that he was responsible for the injury (ia). 
 
 Loss of chattels ly workman. — Every bailee for hire of a chattel 
 is bound to take the same care of the chattel, whilst it remains in 
 his possession, that a prudent and cautious man ordinarily takes of 
 his own property. If clothes are delivered to a fuller to be dressed, 
 and he suiffers them to be eaten \j mice, he will be responsible for 
 the damage, unless he can discharge himself from all imputation of 
 negl-ect, by showing that he had been subjected to some uiiusual 
 and unexpected visitation from such vermin. The very occurrence 
 of the disaster affords a strong prima facie presumption of a want 
 of ordinary caution (v). Where a ship, bailed to a shipwright to 
 be repaired, was put into a dry dock belonging to the shipwright, 
 and whilst she lay there a high tide arose, and pressed against the 
 dock gates ; and it appeared that the gates might have been shored 
 up so as to resist the pressure of the water, but nothing was done, 
 and the water at last burst open the gates and dashed the bailor's 
 vessel against- another vessel, it was held that the bailee was 
 responsible for the injury, as he might, by proper precautions, have 
 guarded against the accident (x). Wherever the loss of the thing 
 bailed arises from the want of the degree of care which, from the 
 nature of the bailment, ought to be exercised, it is immaterial 
 whether the negligence be imputable personally to the bailee or to 
 the servants employed by him (y). 
 
 Theft hy servants. — If the subject-matter of the bailment is 
 secretly purloined J)y the bailee's servant, the bailee will be 
 responsible for the loss, unless he can show that he could not, by 
 the exercise of the greatest vigilance, have guarded against the 
 theft ; but he will not be responsible for a robbery by irresistible 
 violence (2), Where a chronometer, bailed to a watchmaker to be 
 repaired for hire, was placed by the bailee in a drawer in- his shop 
 amongst a variety of common watches, part of which belonged to 
 the bailee, and the rest to his customers, which drawer was locked 
 at night, and in a recess in the same room stood a strong iron 
 chest, in which watches belonging to the watchmaker, of the value 
 of several thousand pounds, were deposited and locked up, and in 
 the night the drawer was broken open by the watchmaker's servant, 
 who slept in the shop, and the chronometer was stolen by him, 
 
 Iv) Wilson V. Brett, 11 M. & W. 113. {x) Lech v. Maeataer, 1 Campb. 137. 
 
 (v) In the Roman law proof of such a (y) Ld. Campbell, C. J., Bansey t. Rid- 
 
 disaster was held to be proof of negli- a/rdaon, 3 EU. & Bl. 169; 23 Law j;., Q. B. 
 
 gence. "Si M\o vestimenta polienda 228. 
 
 acceperifc; eaqiie mures roserint, ex locato (z) WalJker v. British Guarantee Am., 
 
 tenetur, quia debuit ab hac ro cavere,"^ 21 Law J., Q. B. 260 ; 18 Q". B. 277. 
 Dig. ]ib. 19, tit. 2, lex 13, s. 5, 
 
432 NEGLIGENCE, [CHAP. IX. 
 
 together witli the other watches there deposited, but the watches 
 in the iron chest, remained untouched, it was held, that as the 
 watchmaker had taken more care of his own watches, by locking 
 them up in the iron safe, than he had taken of the bailor's 
 chronometer, he was responsible for the loss, and Dallas, C.J., was 
 of opinion that the watchmaker " was bound to protect the property 
 against depredation from those who were within the house " (a). 
 
 Negligent keeping of goods hy warehousemen, wharfingers, and 
 depositaries for hire. — All persons to whom goods and chattels arc 
 delivered to be kept for hire and reward, and who are paid expressly 
 and specifically for the exercise of their labour and care in keeping 
 them, and not merely for the finding of a place of deposit, are bound 
 to exercise that amount of care and vigilance for their preservation, 
 which the most prudent and careful of men exercise for the 
 protection of their own property (&). If the goods are injured 
 by mice or rats, the warehouseman will be responsible for the 
 damage (c), although he keeps cats to destroy vermin {d). It is no 
 answer to an action against a warehouseman for the non-delivery 
 of a chattel intrusted to him to keep for, hire, to say that he has 
 lost it (e) ; the mere fact of the loss is primd facie proof of 
 negligence, and he must rebut this presumption by showing that 
 he had taken the greatest care Of the thing intrusted to him, and 
 had -no means of preventing the loss. A booking-office keeper who 
 receives money for booking parcels, is bound to put them into a safe 
 place, and if he leaves them in a public room, or an open shop, and 
 they are lost or stolen, he will be responsible to the owner (/). 
 
 Distinction between rolbery and theft. — ^A very sensible distinction 
 is taken in the civil law between a public palpable robbery by force 
 and violence, when a house is broken into and robbed of its 
 contents, and a theft or secret purloining of goods. In the one 
 case, the bailee relieved himself from responsibility for the loss by 
 proof of the mere fact of the robbery {g), it being considered that 
 individual care or vigilance could avail but little against the open 
 attack of the determined robber ; in the other, he was bound to 
 make good the loss, unless he could show that he had taken the 
 greatest care of the thing intrusted to him, and that it had been 
 purloined, notwithstanding every precaution for its safety (h). 
 
 (a) CloA-Tce v. Ewrnshaw, Gow, SO. Beeme v. Palmer, 5 C. B., N. S. 84. Good- 
 
 (6) " Quod si horrearius nominatim man v. Boycot, 2 B. & S. 1 ; 31 Law J., 
 
 oustodiam mercium in se recepit, -ride- Q. B. 69. 
 
 bitur locasse operas non solum exactse, (/) Dover v. Mills, 5 C. & P. 175. 
 
 sed etiam excuMssimcs custodise." — Pan- (g) Dig. lib. 17, tit. 2, lex 52, 53. 
 
 dect. Just. ed. Poth. lib. 19, tit. 2, art. 3, Instit lib. 3, tit. 16, s. 2, 3. 
 
 72. (A.) "Ad casus autem fortuitos non 
 
 (c) White V. Humphrey, 11 Q. B. 44. sunt referendi illi casus, qui cum culpa 
 
 (d) LoDeroni v. X)rury, 8 Mxch. 166. oonjuncti esse sclent; cujusmodi suut 
 See Kay t. Wheeler, L. R., 2 0. P. 302. furta. Quamobrem, qui rem furto amis- 
 
 (e) Cairns v. Bobins, 8 M. & W. 258, ga^p dicit, is diUj^etiticm guam prohare 
 
SECT. l.J OF WHARFINGERS, WAREHOUSEMEN, ETC. 433 
 
 Where an officer in the army, on leaving London, delivered a trunk 
 containing divers articles of value to an upholsterer to be kept for 
 a shilling a week, and the trunk was returned to the officer emptied 
 of its contents, which were supposed to have been stolen by the 
 upholsterer's servant, it was held by Lord Kenyon, that if the 
 upholsterer had taken as much care of the articles as he had taken 
 of his own property, he was not responsible for the theft committed 
 • by his servant (i) ; but every depositary of chattels to be kept for 
 hire is primd facie responsible for a theft committed by his own 
 servants within the house (k), and can only discharge himself from 
 liability by showing that the theft was committed under such 
 circumstances, or was of such a nature, that the greatest care and 
 vigilance on his part could not have guarded against it, or 
 prevented it. 
 
 Losses occasioned by the negligence of the bailor. — If the owner 
 himself in any way conduces to the loss ; if he brings people to the 
 warehouse or place of deposit to look at the goods, opens packages in 
 which they are contained, &c., and the loss is as likely to have arisen 
 from the misconduct of the persons so introduced, or from the 
 carelessness of the owner, as from the neglect of the warehouseman 
 or bailee, the latter is not responsible for the loss. Thus, where a 
 quantity of ginseng contained in a box was deposited by the 
 plaintiff in the defendant's warehouse, and the plaintiff was in the 
 habit of resorting to the box, and ordering the lid to be taken off, 
 for the purpose of showing the ginseng to expected purchasers, 
 who came to the warehouse to view it on the invitation of the 
 plaintiff, and rats at last got into the box and destroyed the ginseng, 
 it was held that the defendant, the warehouseman, was not 
 responsible for the loss (l). 
 
 Loss of chattels by wharfingers. — ^The duties and responsibilities 
 of the wharfinger, ia respect of the safe keeping of the goods 
 intrusted to him, to be dealt with in the way of his trade, are 
 analagous to those of the warehouseman. If he receives directions 
 to ship them on board a particular vessel, he does not discharge his 
 duty by delivering them to one of the crew ; but he is bound to 
 place them in the hands of the captaia, or some person in authority 
 on board the vessel (m). If he is clothed merely with the custody 
 of the goods, and the duty of shipping them devolves, by usage and 
 
 dehet" Vin. Com. ad Instit. Ub. 3, tit. Ell. & Bl. 156-171 ; 23 Law J., Q. B. 
 
 15 s 5 Pothier(PretaTJsage),art. 53. 223—229. Be SothschM v. Boyal MaU, 
 
 Abbotti C.J., in Sobinson v. Ward, Ey. <bc., Co., 7 Exch. 734 ; 21 Law J., Exch. 
 
 & M 276 273. 
 
 (i) Pinucane v. SrmU, 1 Bsp. 315. (I) CaUif v. Ownvm, 1 Peake, N. P. C. 
 
 (k) Hoddion T. FuOarUm, 4 Taunt. 155 ; <mte, pp. 19—22. 
 
 787 -Dallaa. CJ in Cla/rke y. Earn- (m) Leigh r. Smith, 1 C. &,F. 6Z8,6il; 
 
 Shaw, Gow732.' "CampbeU, C.J., and 2Esp.695. 
 Coleridge, J., in Dans^ v. JRkhardson, 3 
 
434 NEGLISENCE. [CHAP. IX. 
 
 custom, upon the master oJF the vessel to which they are to be sent, 
 the wharfinger is discharged from responsibility as soon as he has 
 placed them at the disposal and under the care of the master and 
 officers of such vessel, although they_^are not actually removed from 
 the wharf («). 
 
 Loss of cattle — Liabilities of agisters of mttle.^-A person who 
 receives cattle or horses, or living animals to keep for the owner, 
 and is paid expressly for his care and watchfulness in preserving 
 them, as well as for their sustenance, is bound to take the utmost 
 care of them, and he is responsible for damage and injury resulting 
 from ordinary casualties, if such damage might have been averted 
 and prevented by the exercise of great care and vigUance. Very- 
 slight evidence of neglect has been sufficient to induce juries to 
 return verdicts in favour of those who have sought compensation 
 for the loss of cattle delivered to bailees to be kept for hire. 
 Thus, where the diefendant, a farmer, had received the plaintiff's 
 horse to agist for a certain price, and the horse strayed and was 
 lost, and never after heard of, and the plaintiff gave evidence of 
 the gates having been occasionally seen left open, and the fences 
 being in pa,rts out of order, but it did not appear directly that the 
 horse had strayed through any defect in the fences; or through any 
 of the gates being left open, the jury, nevertheless, returned a 
 verdict against the defendant for the full value of the horse (o). 
 If the bailee suffers his fences to be defective, or puts the horse 
 into a dangerous pasture, and the animal, by reason thereof is lost 
 or injured, this is a degree of neglect for which he is undoubtedly 
 responsible {p). 
 
 Deposit of luggage and parcels at railway stations. — If the ticket 
 or receipt given on the deposit of goods, at the station of a railway 
 company does not state that the goods will not be delivered back on 
 a Sunday, or specify the times at which parcels are deliverable, it 
 is the duty of the company to be always ready to -deliver them 
 within a reasonable time after demand <{g). Where a railway com- 
 pany provided a place of deposit for the reception of articles and 
 luggage for the convenience of passengers on payment of a trifling 
 charge, and gave public notice that they would not be responsible 
 for any package exceeding the value of 101., and the plaintiff 
 deposited a leathern bag containing jewellery and articles exceeding 
 101. in value, and received a ticket in exchange, on the back of 
 wliich the terms of the deposit were printed, and the bag was de- 
 livered by mistake to a wrong person, but was ultimately recovered 
 
 (n) Cobban v. Dovme, 5 Esp. 41 ; Story (p) Moslem v. Fosset, 1 Roll. Ate. ii 
 
 on Bailments, 293 ; Jones on Bailments, ante, p. 155. 
 
 97. (g) StaMard V. Great Western Rail. Co., 
 
 (o) Broadwatei- t. Blot, Holt, 547. 2 B. & S, 419 • 31 Law J., Q. B. 137. 
 
SECT. 1.] LOSS OF GOODS BY PKIVATE OAEEIEES. 435 
 
 and returned to the plaintiff by the company, with a portion of the 
 jewellery missing, it was held tha,t the company was not responsible 
 for the loss (r). 
 
 Deposit of goods under a special contract. — In a contract of bail- 
 ment, the bailee may impose any fair and reasonable terms he 
 pleases iipon the bailor, and may make his acceptance of the goods 
 to be kept, and his responsibility for the re-delivery of them depen- 
 dent upon those terms being assented to and observed by the 
 parties who deal with him ; but if he accepts the goods and takes 
 them [into his possession, he will not be allowed to impose terms 
 utterly repugnant to, and inconsistent with, any contract at all (s). 
 Where public notice is given of the terms upon which goods are 
 received, or the terms are printed on a paper or receipt delivered to 
 the bailor, and it is sought to hold him to the terms on the ground 
 that he has impliedly assented to them, it should be shown that the 
 terms are reasonable and fair, and not devised for the purpose of 
 fraud or extortion, or for the purpose of exonerating the bailee froni 
 responsibility for his own negligence and misconduct (t). 
 
 Loss of goods iy parties receiving them to he carried, hut who are 
 not common carriers. — "Every man," observes Gould, J., "that 
 undertakes to carry goods is liable to an action, be he a common 
 carrier, or whatever he is, if through his neglect they are lost or 
 come to any damage ; and if a reward be given, then it is without 
 question so. The reason of the action is the particular trust 
 reposed in the bailee, to which he has- concurred by the assumption 
 of the work, and in the executing which he has miscarried by his 
 neglect. And when a man undertakes specially to do such a thing 
 it is not hard to charge him for his neglect, because he has the 
 goods committed to his custody upon those terms" (u). The law 
 casts upon biTn the obligation of using due and proper care and 
 skill, whether any hire or reward has or has not been agreed to be 
 paid. If, therefore, a person receives- a free pass, and is carried 
 gratuitously upon a railway, the railway company is not thereby 
 released from the duty of using due and proper care in the per- 
 formance of the work of carrying him. 
 
 When a bailee has undertaken to carry money, or goods and 
 chattels, gratuitously, to a distant part, it is no answer to an action 
 brought against him for the breach of his engagement to say that 
 he lost the articles in a brothel or a lodging-house, or laj the way- 
 side, without giving any satisfactory or excusable account of the 
 loss. The loss itself unexplained affords the strongest presumption 
 
 M Van Toll v. South-Eastem JRaU. Co., Co., 12 C. B., N. S. 75 ; 31 Law J., C. P. 
 infri ; ante, pp. 19-22. ^ 245. Peefc y. North Staff. Hail. Co., 10 
 
 (s) Addison on Contracts, p. 921, 6th H. of L. Ca. 473. 
 
 ea. 
 (0 Byles, J., Yan Toll v. S.-E. Bad. 
 
 (u) Cogge v. Berruwd, 2 Ld. Eaym. 
 909 ; 1 Smith's L. C, 6th ed. 177. 
 p F 2 
 
436 NEGLIGENCE. [CHAP. IX. 
 
 of negligence (»), and the bailee must rebut this presumption by 
 showing that he was forcibly robbed, or that the property was 
 stolen without any gross neglect or wiKul default on his part (y), 
 or that his vehicle broke down or was overturned, and that the 
 articles were lost during the hurry and confusion and fright of an 
 undoubted accident. Where the bailee of a parcel upon which the 
 word " value " was written promised to carry it gratuitously from 
 Bedford to London, and directions were given to him to take par- 
 ticular care of it upon the road, and to deliver it to the book-keeper 
 at the Bell and Crown, Holborn, and, the parcel not being delivered, 
 an action was brought against the bailee for the breach of his 
 engagement, and no satisfactory evidence was offered by him to 
 excuse or account for his neglect, it was held that the bailee- was 
 responsible for the value of the parcel (£). 
 
 Where the captain of a vessel was intrusted with a seaman's 
 chest to be carried gratuitously from Trinidad to England, and 
 during the voyage the chest was opened to see if it contained any 
 contraband articles, and was found to be filled with money and 
 valuables, which were taken out by order of the captain, put into a 
 canvas bag, and deposited in the captain's own chest in his cabin, 
 where his own money and valuables were k6pt, and on the arrival 
 of the vessel at Gravesend, the captain and one of the mates went 
 ashore, leaving the vessel in charge of the other mate, and the next 
 morning the captain's chest was missing, and was never afterwards 
 discovered, and it appeared that the night preceding the loss of the 
 chest an excise officer and two young men belonging to the ship 
 had been allowed to sleep in the captain's cabin. Lord Ellenborough 
 left it to the jury to say whether the captain had been guilty of 
 negligence, telling them that as soon as he had discovered the 
 valuable nature of the property, he was bound to watch it with 
 great care and diligence, and the jury being of the opinion that 
 proper care had not been taken of the money, found a verdict for 
 the plaintiff for the full value of the property (a). 
 
 When the bailee is to be paid for carrying the things, he cannot, 
 of course, in any case, set up a mere loss of goods by the way, as 
 an answer to an action for the non-delivery of them (&). But the 
 duty to carry safely, which the law imposes upon all persons who 
 undertake the carriage of goods for hire, is not understood to mean 
 that the goods shall be carried and delivered safely at all events, but 
 
 {x) Parry v. Roberts, 3 Ad. & E. 120 ; (z) Beauchamp v. Pmuley, 1 M. & Eob. 
 
 5 N. & M. 670 ; Maule, J.,in Melville v. 38. 
 
 Dmdge, 6 C. B. 456. (a) Nelson t. MacUntosh, 1 Stark. 237. 
 
 {y) Doormam v. JenUns, 2 Ad. & B. (5) Mogera v. Bead, Cro. Jao. 262. 
 
 256 ; Holt, C.J., in Coggs v. Bernard, 2 Mattkewi v. Hopping, 1 Keb. 852. Boss 
 
 Ld. Eaym. 913. v. Sm, 2 C. B. 877 ; 15 law J., C. P. 
 
 182. 
 
SECT. 1.] LIMITATION OF LIABILITY OF SHIPOWNEKS, 437 
 
 that they shall be kept safe from all such hazards and contiugenoies 
 as might have been foreseen and guarded against by the exercise of 
 vigilance and skill. 
 
 Where the defendant received eleven boxes of gold dust, to be 
 carried and delivered at the Bank of England, " robbers and dangers 
 of the road excepted," and one of the boxes ■^as secretly stolen, it 
 was held that the defendant was responsible for the loss ; that a 
 secret theft or pilfering was not within the exception as to robbers, 
 nor was it a danger of the road within the meaning of the con- 
 tract (c). If the owner accompanies the goods to tjike care of them 
 and loses them himself, the carrier is not, of course, responsible for 
 the loss (cQ. But if the goods are actually bailed or delivered into 
 the hands of the carrier, the latter cannot exonerate himself from 
 the consequences of negligent keeping by showing that the owner 
 sent his own servant with the goods for greater security (e). 
 
 There is no duty imposed upon electric telegraph companies 
 to deliver messages correctly, so as to enable the receiver of the 
 message, in the absence of any privity between him and the 
 company, to sue them for negligence in case he suffers injury from 
 the misdelivery or inaccurate delivery of' the message {f). 
 
 . Limitation of liability of shipowners. — The Merchant Shipping 
 Acts, 17 & 18 Vict. c. 104, s. 503, and 25 & 26 Vict. c. 63, s. 54, 
 exempt the owners and shareholders of sea-going ships from liability 
 to make good any loss or damage that may happen, without their 
 actual fault or privity, to any goods, merchandise, or things from 
 fire on board ship, or to any gold, silver, diamonds, watches, jewels, 
 or precious stones, by reason of robbery or embezzlement, making 
 away with or secreting thereof, unless the owner or shipper thereof 
 has, at the time of shipping the same, inserted in his bills of lading, 
 or otherwise declared in writing to the master or owner of such 
 ship, the true nature and value of such articles. 
 
 Detention of chattels hy bailees under a claim of lien. — The 
 detention of chattels by a bailee is frequently justified on the ground 
 that the bailee has a right to hold them in his hands until some 
 pecuniary demand upon or in respect of them has been satisfied by 
 the bailor. A right of lien may exist in favour of the unpaid 
 vendor of chattels, who has not parted with the possession of the 
 
 (c) De RoihscUld t. R. M. St. P. Co., 7 given to the Postmaster-Greneral to pur- 
 Exch. 734 ; 21 Law J., Exch. 273. chase the telegraphs in this country, and 
 
 (d) Brind v. DaU, 8 C. & P. 209, 211 ; this has been done. By the 32 & 33 
 2 M. & Eob. 80. "Vict. o. 73, s. 23, telegraphic messages 
 
 (e) BoUnson v. Dunmore, 2 B. & P. are to be deemed post letters within 7 
 416. Will. 4 & 1 Vict. c. 36, but this is not 
 
 (/) Plmjford T. United Kingdom Tele- to relieye officers of the Post-office from 
 
 graph Co., L. R., 4 Q. B. 706 ; 38 L. J,, producing such messages in courts of law 
 
 Q. U. 249. when duly required so to do. 
 
 By the 31 & 32 Vict. c. 110, power is 
 
438 BAH^MENTS. [CHAP. IX. 
 
 things he has sold (p) ; or in favour of persons who have advanced 
 money upon the security of a deposit of title-deeds, or of goods 
 and chattels ; of innkeepers who have provided lodging and food 
 for travellers and guests (A) ; of common carriers who have received 
 goods to be carried for hire ; of shipowners who have earned freight 
 for the conveyance of a cargo, or the hire of their vessels under a 
 charter-party of affreightment, when the ship itself has not been 
 demised to the charterer, or who have a claim against the owners 
 of goods for general average or salvage (i) ; of the salvor or rescuer 
 of property froi^ perils of the sea, who has earned salvage for his 
 services ; of the factor, broker, or auctioneer, who has received 
 goods for sale, and has made advances or given acceptances upon 
 the credit of them to his employer,, or who has sold them and 
 earned commission, &c., and retains in his hands the produce of the 
 sale. It generally exists, also, in favour of artizans and others who 
 have bestowed labour and service on goods and chattels which have 
 been delivered to them to be repaired, improved, or mended. It 
 may exist also in many other cases by custom, or by the express 
 agreement of the parties (/). 
 
 The right of lien, when once established, is not destroyed by 
 reason of the remedy for 'the recovery of the debt secured by the 
 lien being barred by the statute of limitations (A). And it will 
 exist, although it arises out of an immoral consideration, if the 
 plaintiff cannot recover without relying on the immorahty, on the 
 principle oiin pari delicto potior est conditio possidentis 0. 
 
 Particular liens and general liens. — There are two species of 
 liens known to the law, namely, particular liens and general liens. 
 Particular liens are where persons claim a right to retain goods in 
 respect of labour and money expended upon them, and these liens 
 are favoured in law. General liens are claimed in respect of a 
 general balance of accounts, and these are founded on custom only, 
 and are therefore to be taken strictly. 
 
 Ordinary lien of workmen and artificers. — ^Whenever a person 
 has bestowed work and labour or skiU in repairing or improving a 
 
 (jr) Cooper v. BiU, 34 Law J., Exch. v. Dandeson, 17 Law J., Exch. 269. Omy 
 
 161 ; or a right to stop in transitu, if the v. Caxr, L. K., 6 Q. B. 522. Peek v. 
 
 transitus has not been determined. £ol- Zm-sen, L. E., 12 Bq. Ca. 378. See 
 
 ton V. Lane. <f; Yorkshire Sail. Co., L. E., Wiltshire Iron Co. v. Gt. West. Bwy., L. 
 
 1 C. P. 431. And see Rodger v. Comptoir E., 6 Q. B. 101, 776, as to the effect of a 
 
 d!Escom/pte de Pans, L. E., 2 P. C. Ca. liquidation on a lien. Also Ke Sankey 
 
 393 ; 38 L. J., P. C. 30 ; L. E., 3 P. 0. Brook Coal Co., L. E., 12 Eq. Ca. 472. 
 
 Ca. 465. . Addison on Contracts, 6th. ed., As to the lien of pledgees and pawn- 
 
 p. 200, et seq. bfokers, see Addison on Contracts, 6th. 
 
 (/() Allen T. Smith, 31 Law J., 0. P. ed. 279—290. 
 
 306. ' \k) Speaks v. JBa/rtiy, 3 Esp. 81. Se, 
 
 (i) .Brings v. Mercht. Trad. &c., 13 Q. B. Broomhead, 16 Law J., Q. B. 355. 
 
 167 ; 18 Law J., Q. B. 178. (l) Tayhr v. Chester, L. E., 4 Q. B. 
 
 {j) SmaU T. Moates, 9 Bing. 574. 309 ; 38 L. J., Q. B. 225. 
 Norris y. WiUiams, 1 Cr. & M. 842. Hague 
 
SECT. 1.] LIEN OF WORKMEN, AETIFICEKS, ETC. 439 
 
 chattel at the request, or by the employment, of the owner, he has 
 a lien upon it for a fair and reasonable remuneration, or for the 
 contract price, if a price has been fixed by agreement (m). Thus 
 the artificer to whom goods are delivered to be worked up, the 
 ship-wright'to whom a vessel has been delivered to be repaired (n), 
 the printer to whom paper has been delivered to be printed (o), 
 the miller who has ground corn or meal at his mill (p), the horse- 
 breaker or trainer by whose skill a horse is trained and rendered 
 manageable (g), the staEion-keeper who has received a mare to be 
 covered by his stallion, have each a Hen for their hire, or the 
 customary charges for their services, unless there be some express 
 or tacit understanding between the parties to the particular con- 
 tract inconsistent with the exercise of such' a right. But where no 
 work is to be done upon the chattel to improve or increase its 
 value, or to carry it from one place to another for hire, no lien 
 attaches upon it. Thus, if a power of attorney, or an authority to 
 receive money, is intrusted to a bailee in order that he may exhibit 
 it as a voucher, he has no lien upon the document for money due 
 to him from the bailor. Where a mortgage deed was delivered to 
 an auctioneer in order that he might obtain payment of the principal 
 and interest due thereon, and the auctioneer made several applica- 
 tions for the money, it was held that he had no lien upon the deed 
 for his charges (r). 
 
 The lien of the manufacturer and workman extends only to 
 the principal chattels placed in his hands to be worked up, and 
 not to the accessorial materials which may have been furnished by 
 the employer, and left upon the premises of the manufacturer or 
 workman unused. Thus, where oil, madder, dyewood, and fustic, 
 were furnished to scribblers and fullers by a person who sent them 
 cloth to be scribbled and fulled and dyed upon their premises, it 
 was held that the Hen of the scribblers and fullers was confined 
 to the cloth, and did not extend to the oil, &c., furnished by the 
 employers, and left upon the premises after the scribbling and 
 fulling had been completed (s). And where a stereotype printer 
 received stereotype plates from his .employer to print from, it was 
 held that his lien for printing was confined to the paper, and did 
 not extend to the plates from which he printed. But such a lien 
 may be established by custom and the usage of trade, or by agree- 
 ment of the parties (t). The lien of the artificer upon a chattel is 
 
 Im) Chase v. Westmore, 5 M. & S. 183. (2) Bevan t. Waters, 3 C. & P. 520. 
 
 (n) Franklin v. Homer, -4 B. & Aid. Jacobs v. Latour, 2 M. & P. 201; 5 
 
 841. WiUiams v. AUsup, 10 Q. B., N. S. Bing. ISO. Scwrfe v. Morgan, 4 M. & W. 
 
 417 : 30 Law J., C. P. 353. As to a 284. 
 
 maiitime lien, see The Two Miens, L. E., ■ (r) Sanderson v. Bell, 2 Or. & M. 304. 
 
 ' 3 Adm & Eocl. 345. {») Omipston v. ffeigh, 2 So. 684. 
 
 (0) Blake v. Nicholson, 3 M. & S. 167. («) Bleaden v. Hancock, M. & M. 465. 
 
 (p) Olme T. Westmore, 5 M. & S. 180, ' 
 
440 BAILMENTS. [CHAP. IX. 
 
 strictly confined to -work done upon it in making, mending, or 
 repairing it. He cannot set up any claim against the owner for 
 expenses incurred by Mm for warehousing it and taking care of it 
 during the period of its detention (u) ; nor can he sell any portion 
 of the property to cover the expenses he has incurred {v). 
 
 A person cannot set wp a right of lien which is at variance with 
 the terms or conditions, or implied understanding, wpon which he 
 received the property. — Thus, if a livery-stahle keeper takes in a 
 horse to be stabled and fed for hire, upon the understanding that 
 the horse is to be re-delivered to the owner whenever he requires 
 it, the livery-stable keeper has no right of lien upon the horse for 
 his keep (x), or for money paid by him to a veterinary surgeon for 
 blistering the horse according to the owner's directions (y), the 
 right of the owner to the possession of the horse for the purpose of 
 riding him being deemed inconsistent with the right of lien. The 
 livery-stable keeper, indeed, who holds a horse at the constant 
 disposal of the owner, is the mere servant of the latter, and has 
 nothing more than the bare custody of the animal. This is the 
 case also with the agister of milch cows, who receives them to be 
 depastured, agisted, or fed, the owner having a right to the posses- 
 sion of the cows whenever he requires them for the purpose of 
 milking (s). And if a trainer of race-horses holds them on the 
 understanding that the owner may send them to be ridden by a 
 jockey of his own choice at any race he chooses, and the trainer 
 cannot lawfully refuse to deliver them to the owner for such a 
 purpose, that state of things is inconsistent "with the existence of a 
 right of lien (a). If a policy of insurance is deposited for safe 
 custody only, the depositary cannot set up a lien upon it for an 
 antecedent debt (&). If a person receives a bill of exchange to 'get 
 it discounted, and pay over the proceeds to the owner, or apply 
 them in some specified manner, he has no lien upon the bill for 
 money that may be due to hun from the latter (c). If a ship-factor 
 receives the certificate of registry of a ship in order to pay the 
 tonnage dues, he has no lien upon it for a debt due to him from 
 the shipowner (d). Whenever goods in the hands of a bailee or 
 depositary are, by the terms of the contract, to be re-delivered to 
 the owner at some stated period, or "if by the agreement the 
 
 («) Brit. Eiivp. Ship. Co. x. Somes, 27 (s) Jachon v. Cummins, 5 M. & W. 
 
 Law J., Q. B. 397 ; 30 J5. Q. B. 229 ; Ell. 342. Chapman y. AUen, Cro. Gar. 273. 
 Bl. & BU. 353; 8 H. L. C. 338. (a) Forth v. Simpson, 13 Q. B. 685. 
 
 {v) Themes Iron Works Co. v. Patent (i) Muvr v. Fleming, D. & B., N, P. 0. 
 
 Derrick Co., 1 Johns. & H. 97 ; 29 Law 30, 
 J., Oh. 714. (c) Key. v. Flint, 8 Taunt. 23 ; 1 Moore, 
 
 (x) JwkonY.Etheridge,lC. &'M..7i3. 451. Buchanan v. Findlay, 9 B. & C. 
 
 Yorlce V. OretMingh, 2 Ld. Eaym. 868. 749. 
 
 (i/) Orchm-d v. Baekstraw, 19 Law J., 0. (d) Bum t. Brown, 2 Stark. 273. 
 
 P. 303. 
 
SECT. l.J EIGHT OF LIEN. 441 
 
 plaintiff is to liave the goods immediately, and the payment in 
 respect of them is to take place at a future day, the bailee 
 cannot set up any lien " (e). A Hen is wholly inconsistent -with a 
 dealing on credit, and can only exist where payment is to he made 
 in ready money, or security is to be given the moment the work is 
 completed (/). "If security" (such as a bill, note, or bond) "is 
 taken for the debt for which the party has a lien upon the property 
 of the debtor, such security being payable at a distant day, the 
 lien is gone " (g). 
 
 If a person, when goods are demanded of him, rests his refusal 
 to deliver them up on grounds quite distinct from any claim of 
 lien, he cannot afterwards, on finding that those grounds fail him, 
 put forward a claim of lien as a justification for his refusal. 
 Where, therefore, a warehouseman, on being applied to for brandy 
 which had been delivered to him for safe custody, refused to give 
 it up, saying that it Was his own property, it was held that he 
 could not afterwards justify his refusal on the ground that ware- 
 house rent was due to him, and was not tendered at the time the 
 brandy was demanded (h), " for it would be absurd to offer the 
 expenses of keeping the goods to one who insisted on retaining 
 them as his own property " (*). But a person does not, of course, 
 lose his right of lien by merely omitting to mention it when the 
 goods are demanded. And if he claims a right to retain them for 
 two separate charges, and has a lien only in respect of one of them, 
 this will not dispense with the necessity of a tender of the one in 
 respect of which the Hen exists (k). 
 
 Parties against whom a lien may ie claimed. — A mere trespasser 
 or wrong-doer, who gets possession of property without the consent 
 of the owner, cannot in general deal with it so as to create a right 
 of lien thereon as against the true owner (l), unless the person in 
 whose possession the property is placed is a public innkeeper, or 
 common carrier, or common ferryman, or is bound to exercise his 
 craft, in favour of aU who require his services (post, ch. 10). 
 "Where the owner of a pony phaeton intrusted the phaeton to a 
 painter to be painted, and the latter carried it to the premises of 
 the defendant, who was in the habit of taking carriages to stand 
 on his premises for hire, and there left it, and, the phaeton never 
 having been painted or brought back, the plaintiff, after the expira- 
 tion of three months, made search for it, and' found it on the 
 
 (e) Cramshay v. Homfrey, 4 B. & Aid. (A) Boardman v. Sai, 1 Campb. 410, n. 
 go Weeks t. Qoode, ante, p. 331. 
 
 ( f) Raitt V. MUcheU, i Campb. 146. '(») White v. Oainer, 9 Moore, 45. 
 (U Bewison v. Chithne, 3 So. 298; 2 (h) Sc(wfe v. Morgan, 4 M. & W. 281. 
 
 B N C 759. CoMieZi T. -SimiJsoM, 16 Ves. {1} Martop y. Mowe, S Atk. ii. Lem- 
 
 '280 ' Homcastle v. Farran, 3 B. & Aid. priere y. Pasley, 2 T. fi. 48.5. OasteUain 
 
 ^ou. nor,,. y. Thompson, 13 C.B.,N.S. 105. 
 
442 / _ BAILMENTS. [CHAP. IX. 
 
 premises of the defendant, who claimed a lien on it for the price 
 of the standing-room, it was held that the defendant had no such 
 lien (m). And where a chaise, which had heen hroken by the 
 negligence of a servant, was taken by the latter to a coach-maker's, 
 without the knowledge or sanction of the master, and was there 
 repaired, it was held that the coach-maker had no lien upon the 
 chaise as against the master for the price of the repairs (n). It 
 would seem also, from the adjudged cases, that if a servant is 
 directed to take a carriage to A to be repaired, and he by mistake 
 takes it to B, B would have no lien upon it for ' the price of 
 the repairs, as the servant was not authorized to employ B in the 
 matter. This may be law, but it is hardly just, and opens a wide 
 door to fraud, as it is impossible for the coach-maker to be cognisant 
 of the particular directions given by the master to the servant, ' If 
 the servant has received general directions to get. the carriage 
 repaired, he may then of course give a right of lien to any coach- 
 maker he may employ to do the repairs (o), " It has been held, that 
 if a person obtains possession of goods by fraud, and pawns them, 
 the pawnee is entitled to a Uen upon them for the money advanced 
 as against the true owner (J). But the possession of- the -goods -by 
 the pawnor must have been obtained by virtue of a contract 
 intended- to - pass - the property- to- him. ., If . a - person pawns with 
 anotheisproperty to which he has no colour of title, the jiis t&rtii 
 may always be set up against the pawnor by the pawnee (q). 
 
 General lien is a right on the part of a manufacturer, or work- 
 man, factor, broker, or commission agent for the sale of goods, 
 warehouseman or wharfinger, into whose hands goods have been 
 placed to be worked up, repaired, improved, sold, or taken' care 
 of for. hire, in the ordinary course of their trade or employment, to 
 retain possession of them, not only until they have received pay- 
 ment of the hire due to them for their services in the particular ■ 
 employment, but for the general balance due to them from their 
 employer in the ordinary course of dealing for work and services 
 of the like nature bestowed at other times upon other goods of the 
 employer. This right depends either upon the express agreement 
 of the parties, or the custom and usage of the particular trade or 
 business. The onus of making out and establishing the right, 
 whether it exists by agreement or by oustom, lies upon the person 
 claiming it. When custom and usage of trade are relied upon as 
 
 (m) Buxton v. Bomghmi, 6 C. & P. in Load v. Green, 15- M. & W. 219 ; and 
 
 ^574. Cresswell, J., in White v. Goerden, 20 
 
 (re) Hiscox T. Greenwood, i Esp. 174. Law J., C. P. 168. 
 
 (o) Weldon v. Gould, 3 Esp. 268. (q) Cheeemcm v. ExaU, 6 Eich. 345. 
 
 (p) Parker v. Patrick, 5 T. B. 175 ; As to pledges by factors and agents, see 
 
 doubted in Peer v. Hwmphrey, 2 Ad. & B, Addison on Contracts, 6th ed., p, 281, et 
 
 499 ; said to be good law by Parke, B,, seq. 
 
SECT. 1.] EIGHT OE GENEKAL LIEN. 443 
 
 establishing tlie right, the usage must be shown to have governed the 
 parties in their previous dealings together, or to prevail to such an 
 extent that the contracting party must be supposed to be cognisant 
 of it, and to have contracted subject to the usage ; but, as the right 
 is an encroachment upon the ordinary rules and principles of the 
 common law, it is regarded with jealousy by the courts, and 
 requires the strongest proof. 
 
 Where persons carry on a trade or business in which a general 
 lien is recognised, they cannot claim a general lien in respect of 
 goods or securities which are, by agreement, held for a particular 
 purpose, or under special conditions inconsistent with the claim of 
 a general lien (?•). A general lien cannot be set up in opposition to 
 the terms and conditions upon which the goods were received. 
 Thus, if a broker or factor receives goods to sell, and applies the 
 proceeds ia some particular manner, he C£),nnot set up a lien for his 
 general balance, because a lien of this nature would be utterly 
 inconsistent with the terms upon which he acq[uired possession of 
 the goods (s). And if a debtor deposits a biU of exchange with his 
 creditor, in. order that the latter may get the bill discounted and 
 pay over the proceeds to the debtor, the creditor cannot set up a 
 lien upon the bill for the general balance due to him (f). In some 
 places, dyers, calico-printers, fullers, warehousemen, wharfingers, 
 and packers, have been held, in accordance with the proved usage 
 of their several trades in the particular locality, to have a lien on 
 goods sent to them to be dyed, printed, warehoused, worked upon, 
 or taken care of, not only for the work done upon, or in respect of, 
 the particular goods in their possession, but also for their charges 
 of dying, printing, warehousing, &c., other godds which had pre- 
 viously been delivered back to their owners (u) ; and in other 
 places, where no such usage has been shown to exist, they have 
 been held to have no such general lien (x). The usage, when it 
 exists, must be, shown to be long established, and notorious, fair, 
 and reasonable, and not contrary to any established principle of 
 law (y). It has been held that a publisher has a lien upon any one 
 or more parts or numbers of a work, for his charges and disburse- 
 ments for printing or publishing the various numbers, though not 
 consecutive, of an entire work (z) ; also, that an agent Tvho carries 
 on business, in his own name, on behalf of an undisclosed principal, 
 
 M Bock T. Gorrissen, 2 De G. F. & J. 499 ; 2 Moore, 547. Webb v. Fox, 2 
 
 434 ; 30 Law J., Oh. 42. Peake, N. P. C. 167. 
 
 («) Walker T. Sirc/i, 6 T. E. 262. {x) Green v. Farmer, 4 Burr. 2214 ; 1 
 
 (t) Key T. Flint, 1 Moore, 451 ; 8 W. Bl. 651. HoldemeSs v. CoUinson, 7 
 
 'Paunt. 21. B. & C. 216. 
 
 (u) SmiiU V. Barchard, 4 Bsp. 52. (y) Suskforth v. Sadfield, 6 Bast, 528. 
 
 Nayhr t. Mcmgles, 1 iJ. 109. Spem-s v. Leuehhmrt t. Cooper, 3 So. 521 ; 3 B. N. C. 
 
 BarOey, 3 ib. 81. Rose t. Swrt, 8 Taunt. 99. 
 
 (z) Bhke T. Nicholson, 3 M. & S. 167. 
 
444 BAILMENTS. [CHAP. IX. 
 
 has a lien on the business, the stock employed in it, and the debts 
 owing to it, to the extent of the liability which he has incurred in 
 the conduct and management of the business (a). 
 
 Lien of factors and brokers. — ^Factors and brokers to whom goods 
 are consigned to be sold, have a lien for th^ general balance due to 
 them from their employers or principals in the ordinary course of 
 their business as factors, and for their acceptances on behalf of such 
 employers, upon the goods whilst they are in their possession, and 
 on the moneys realised by the sale of them (6). This right exists 
 universally by the custom of the trade. It is part of the law 
 merchant, and as such is judicially taken notice of by the courts, 
 no proof being ever required as a matter of fact that such general 
 lien exists ; but no such lien can be claimed as resulting from any 
 general law of principal and agent (c). The lien does not extend 
 to a collateral debt not growing out of the relationship of principal 
 and factor, such as a debt due for rent (d), nor to goods which have 
 not actually reached the hands of the factor (e), or which have come 
 into his possession without the consent and direction of the owner; 
 consequently, if goods have been left at the factor's place of business 
 by mistake or inadvertence (/), or have been taken possession of 
 by him without the authority of the owner, he cannot set up a lien 
 upon them for his balance (g). And if the person from whom he 
 receives the goods is only an agent, he cannot retain them as 
 against the true owner for a debt that was due to him from the 
 agent at the time the goods were put into his hands, and which was 
 not contracted on the credit of the deposit of the goods ; but it is 
 otherwise if he has made advances on the credit of the deposit, not 
 knowing the depositor to be an agent (h). The factor can only 
 claim a lien for his general balance upon goods which come to his 
 hands as factor. A factor, therefore, who effects a policy of insu- 
 rance, not as factor, but as an insurance broker, is not entitled to 
 a general lien on a policy in his hands for a balance due to him in 
 his character of factor (i). 
 
 Insurance brokers have also, by the general usage and custom of 
 trade, a lien upon every policy effected by them for the premium 
 paid oh such policy, and for their commission, and also for the 
 general balance due to them from their employers upon all policies 
 effected by them for such employers, and left in their hands, and 
 upon all moneys received by them upon such policies from the 
 
 (a) Foxerafi v. Wood, i Bubs. 488. (e) KMoch v. Craig, 3 T. E. 123. 
 
 (b) Kruger v. Wikox, Ambl. 252. (/) Imcas v. Dornm, 7 Taunt. 278. 
 Budson V. Granger, 5 B. & Aid. 31. (a) Taylor t. Robmson, 2 Moore, 730. 
 Hammond T.£arcfey, 2 East, 227. (Ji) Pultney r. Keymer, 3 Esp. 181. 
 
 (c) Bock V. Oorriasen, 30 Law J., Ch. Addison on Contracts, 6th ed., pp. 279 
 42. — 283. Freeman y. Appleyard, 32 Law J., 
 
 (d) Houghton v. MaUhews, 3 B. & P. Exch. 175. 
 
 485. • (i) Dixon v. SUmsfeld, 10 C. B. 398. 
 
SECT. 1.] LIEN OF BEOKEES, BANKERS, ATTORNEYS, ETC. 445 
 
 underwriters, unless the person for whom they effected the policy 
 was himseK only an agent in the matter ; in which case the extent 
 of their lien will depend upon the disclosure or concealment of the 
 agency, and the degree of credit they may have given to the agent, 
 under the impression that he was the person really interested in 
 the policy. The lien does not extend to a collateral deht not 
 incurred in respect of brokerage business (k). 
 
 Lien of tankers. — Bankers also, who are a species of factors in 
 pecuniary transactions', have, by the geneiral law of the land, a Uen 
 iipon aU the securities for money of their customers in their hands 
 for their advances to such customers in the ordinary coiirse of busi- 
 ness (V), unless such securities have been received under special 
 circumstances, and not ^n the ordinary way of their business as 
 bankers, or under some special arrangement or understanding incon- 
 sistent with the exercise of the right, or limiting it to some specified 
 amount (m). By the term securities is meant notes, bills and 
 negotiable instruments, coupons, bonds of foreign governments, 
 &c. (n). If title-deeds and securities for money, not being nego- 
 tiable, are deposited in the hands of a banker by a person who is 
 wrongfully possessed of them, or is not the true owner thereofj and 
 is not authorized to raise money upon them, the banker has no 
 better or further rights over them than the person who deposited 
 them in his hands, and cannot set up a lien upon them as against 
 the true owner (o). But as regards negotiable securities, such as 
 exchequer bills, bills of exchange, and promissory notes, the right 
 of general lien will extend to them, although the customer who 
 delivered them to the banker was not the owner, but was holding 
 them as an agent or trustee of some third person, unless the banker 
 knew at the time he received the securities that they did not belong 
 to the person from whom he received them. The lien of a banker 
 upon the securities in his hands belonging to his customers is part 
 of the law merchant, and as such is judicially taken notice of by the 
 courts {p). 
 
 Lien of attorneys and solicitors. — Attorneys and solicitors also 
 have a lien upon all money recovered by them in the actions and 
 suits in -which they are employed (matrimonial, in bankruptcy, or 
 otherwise (2)), and upon all the deeds and papers and other articles 
 
 (Jc) Mamm, v. Farregler, 4 Campb. 60. (n) Brandao v. Bamett, 12 CI. & F. 
 
 Mann v. Shiffner, 2 East, 259. 787. Wylde v. Radford, 33 Law J., Ch. 
 
 (I) Dams V. Bmsher, 5 T. E. 488. The 53. 
 articles of association of joint-stock banks (0) Lacag r. Dorrien, 7 Taunt. 278. 
 
 not vmfrequently provide that the bank Newton v. Newton, h. E., 6 Eq. Ca. 135. 
 shall have a lien on the shares of a share- (p) Bamett v. Brandiw, 7 Sc. N. E. 
 
 holder for aU money due to the bank by 331. Woohey v. Pole, 4 B. & Aid. 11. 
 
 such shareholder. See Be General Ex- Collins \. Martin, 1 B. & P. 648. 
 cKmge Bank, L. B., 6 Ch. App. 818. (?) Ex paHe Brenmer, L. E., 1 Prob. 
 
 (m) Vamderzee v. WiMs, 3 Bro. 0. C. & Div. 254. Ex puete Cldand, L. B., 2 
 
 21. Ch. App. 811. The Jeff Dams, L. E., 1 
 
446 BAILMENTS. [CHAP. IX. 
 
 of their clients which come to their hands in their professional 
 capacity, for the purposes of business, for the costs not only of the 
 particular cause or matter with which such deeds or pp,pers are con- 
 nected, but for the costs due to them generally from their clients (r). 
 But a solicitor has no lien upon the will of a client for the costs 
 incurred in the preparation of it, and cannot therefore refuse to pro- 
 duce it after his client's death until his costs have been paid. And, 
 where deeds are delivered for a specific purpose, the right of lien is 
 extinguished as soon as the particular purpose has been accomplished, 
 and it may be superseded altogether by the attorney's taking from 
 the client security for his costs (g). The town agent of a country 
 attorney has a lien only upon the money recovered, and upon the 
 papers in his hands in the particular cause in which he is engaged, 
 for the amount due to him by the attorney in that particular cause. 
 He cannot set up a claina of lien for the general balance due to him 
 from the country attorney who employs him, and cannot retain the 
 money or papers of the client to satisfy his general debt (t). And 
 his lien is limited to the debt actually due from the client to the 
 country solicitor, so that if the country client pays the country 
 solicitor the lien is discharged, for the country solicitor can give the 
 town agent.no lien which he does not himself possess (u). 
 
 An attorney cannot set up a general lien for the balance due to 
 him in respect of services not rendered by him as an attorney, nor 
 can he detain 'deeds and papers which do not come to him in his 
 professional character. He has no lien, for example, where he acts 
 or holds papers as town-clerk (x); or steward of a manor (y) ; he 
 cannot set up any lien which is inconsistent with the nature of his 
 employment, or the terms, or conditions, or express or implied trust 
 upon which he received the papers (z). His right, moreover, is 
 dependent upon the rights of his client, and he cannot acquire more 
 extensive powers over the papers in his hands than the client him- 
 self possessed at the time he deposited them with him (a). If an 
 
 Adm. & Ecol. 1. TJie Leader, 2 Utid. 314. («) Genges t. Genges, 18 Ves. 294. 
 
 As to his lien as against an official liqui- Balch v. Symes, Turn. & E. 92. 
 dator, see Me Union Cement <fc Bricle Co., (t) White v. Boyal Exchange Ass. Co., 
 
 Ij. R, 4 Ch. App. 627. Re South Essex 1 Moore, 249. Moody v. Spencer, 2 D. 
 
 Seclamation- Co., 38 L. J., Ch. 305. & E. 6 ; Anon., 2 Dick. 802. 
 
 («•) Stevenson v. Bldkehche, 1 M. & S. (w) WaUer v. Bohnea, 1 Jolina. & Hem. 
 
 535. Lambert T. Suckmaster, 2 B. & C. 239 ; 30 Law J., Ch. 24. iJe Andrew, 1 
 
 616. Rlundeii v. Desert, 2 Dru. & W. H. & N. 87 ; 30 Law J., Exch. 403. 
 
 406. Friswell v. Kmg, 15 Sim. 191. As Peatfkld v. Bwrlom, 38 L. J., Ch. 311. 
 to an attorney's lien on a judgment for (a;) Chmmpemown v. ScoU, 6 Mad. 93. 
 
 his costs, see O'Brien y. Lewis, 32 Law J., (y) Bex v. Sanhey, 5 Ad. & E. 428. 
 
 Ch. 665. Slater Y. Sunderland {Mayor of), {e) Laieson \. Dichemon, 8 Mod. 307. 
 
 33 Law J., Q. B. 37. Langley v. Head- Sen Lie Faithful, L. E.., 6 Bq. Ga. 324. 
 
 land, 34 Law J., C. P. 183. Me Bank of Simmonds v. Gh>. East. Mail. Co., L. E., 3 
 
 Mindustan, L. E., 3 Ch. App. 125. Ex Ch. App. 797. 
 
 parte Morrison, L. E., 4 Q. B. 153. As (a) MolUs v. Claridge, 4 Taunt. 807. 
 
 toB,-pvoabor'B,Patterson7.Patters0n,h.'R., Esdaile v. OasenAram, 3 B. & C. 229. 
 
 2 Proh. & Dir. 192. Zightfoot v. Keame, 1 M. & W. 745. 
 
 Molesworth v. Bobbins, 2 Jon. & L. 358. 
 
SECT. 1.] LIEN OF SHIPOWNERS, CONSIGNEES, ETC. 447 
 
 attorney transacts business for a firm in partnership collectively, 
 and also manages the private business of the members of the firm 
 individually, he has no lien upon the private securities, deeds and 
 writings, of one partner in respect of the business done for the 
 firm (b). 
 
 By the 23 & 24 Vict. c. 127, s. 28, it is provided, that in any 
 c^ise before a court of justice where an attorney shall be employed 
 to prosecute or defend, the court or judge may declare the attorney 
 entitled to a charge upon the property recovered through his 
 instrumentality (c), and may make an order for the taxation of the 
 attorney's costs, and for the payment of them out of such property ; 
 and aU conveyances and acts done to defeat such charge, except to 
 a hond fide purchaser for value, without notice, shall be void (d). 
 The attorney's charge for his costs under this section only extends 
 to the property of his own client and not to that of other persons (e). 
 But, independently of any order under the above statute, the 
 proctor's lien in the Admiralty Court will attach and take precedence 
 of the claim of a garnishee (/). 
 
 Certificated conveyancers have no lien upon the papers and 
 instructions placed in their hands for the purpose of enabling them 
 to draw a conveyance (c/). 
 
 Lien of shipmasters. — An agent cannot acquire a lien upon the 
 property of his principal for work done by others whom he has 
 employed and paid. A shipmaster, therefore, has no Hen upon a 
 ship for money expended or debts incurred by him for repairs done 
 to her on the voyage (h). 
 
 Lien for freight. — The lien of shipowners and masters of ships on 
 goods and cargoes for freight is regulated by the Merchant Shipping 
 Act (*). 
 
 Lien of consignees. — The general lien of a consignee upon goods 
 consigned to him cannot be set up against positive directions given 
 him by the consignor, and if he accepts a consignment accompanied 
 by directions to apply the proceeds of it in a particular way, he is 
 bound by such directions (/). 
 
 Ilotice that goods will he held subject to a general lien. — ^The 
 richt to retain for a general balance may, with certain exceptions 
 presently noticed, be created by the express contract of the parties. 
 Every workman and artificer not being a public innkeeper, common 
 
 (5^ Turner v. Deane, 3 Bxch. 836 ; 18 (f) Berrie v. ffoimtt, L. K., 9 Eq. Oa. 1. 
 
 LaV J., Exeh. 343. See Re Moss, h. K„ (/) The Jeff Davis, L. K. 2 Adm. & 
 
 2 Eq Ca 345. Eccl. 1. 
 
 (c) See Tviywim v. Porter, L. E., 11 (fl') Steadrmn v. Hockley, 15 M. & W. 
 Ea Ca 181. Heinrich v. Sutton, Ii. E., 553. 
 
 6 Oh App 865. W Hussey v. Christie, 9 East, 433. 
 
 (d) See The PhMppine, L. R., 1 Adm. (i) 25 & 26 Vict. c. 63, see s. 67. 
 
 & Eccl. 309. Me Massey, L. R. 9 Bq. Ca. {/) FrUh v. Forbes, 32 Law J., Ch. 10. 
 
 367. Re Keane, L. K., 12 Eq. Ca. 115, 
 
448 - BAILMENTS. [CHAP. IX. 
 
 carrier, or common ferryman, and not teing bound to exercise liis 
 calling in favour of all persons who may require his services, has a 
 right to prescribe the terms upon which he will receive goods into 
 his possession to be dealt with in the ordinary course of Ms trade, 
 and may by express notice reserve to himself a general lien, if he 
 thinks fit so to do. Thus, where the dyers, dressers, bleachers, 
 whisters, printers, and calenderers of Manchester, and the neigh- 
 bourhood, came to a public resolution or agreement, at a public 
 meeting in Manchester, that they would receive goods to be dyed, 
 dressed, bleached, fee, on the condition that such goods should not 
 only be subject to the debts for the work and labour performed 
 upon them, but also for the general balance due from the persons 
 employing them for work and labour of the same kind performed 
 upon goods which they had already delivered out of their possession, 
 it was held that persons who had sent -goods to the dyer or fuller, 
 with notice of this resolution, conceded to them a lien for their 
 general balance (k). 
 
 General lien by custom of trade — Warehouseke&pers — Wharfingers. 
 — ^Where certain public warehousekeepers of the city of London 
 claimed a right to retain various bales of wool under an ancient 
 custom of that city, for all public warehousekeepers to have a general 
 lien upon all goods from time to time housed in their warehouses 
 in the name of the merchants or other persons by whom such 
 public warehousekeepers were employed, for all moneys or any 
 balance thereof due from such merchants to such public warehouse- 
 keepers for their advances, expenses, and charges, &c., it was held 
 that the custom was bad, as the general lien claimed was not 
 confined to goods the property of the person who employed or 
 retained the warehousekeeper. "The custom," it was observed, 
 "if supportable, "would make the goods of a foreign merchant, 
 which have been consigned to a London factor for sale, and by him 
 put into the warehouse of the warehousekeeper for safe custody, 
 liable to a private debt of the factor for expenses incurred in respect 
 of other goods of third persons, which had been in his hands at 
 former times, for charges contracted upon such goods, during any 
 antecedent period of time, and that to an unlimited extent ; which 
 would be unreasonable and unjust, and obviously prejudicial in a 
 very high degree to foreign trade, for no foreign merchant would 
 consign his goods to this country for sale, if they could be made 
 liable whilst warehoused for custody, to satisfy a debt already 
 due from the factor to the warehousekeeper, in respect of other 
 goods {l). Dock companies have no general lien for wharfage 
 
 (h) Ki/rhman v. Shawcross, 6 T. E. 14. cited. R^ y, JJuwphery, McCIel. & Y. 
 (l) Tindal, C.J., LeucJchart v. Cooper, 3 193. 
 Sc. 531 ; 3 B. N. C. 99 ; 35 B?p, 6, 33, 
 
SECT. 1.]' LIEN OF WAREHOUSEMEN, POLICY BROKERS, ETC. 449 
 
 charges, and cannot detain the goods of one man to satisfy wharfage 
 dues and charges incurred by another (m). If a wharfinger has a 
 general authority to receive all goods directed for A B, and goods 
 come to his wharf directed by mistake for A B, the real owner of 
 the goods cannot take them away without paying the charges 
 incident to those particular goods ; but it is equally clear that the 
 wharfinger could not set up a lien on such goods for a general 
 balance of accounts due from A Bio him {%). 
 
 Lieyi of poUcy-hrokers. — If a policy-broker is employed by an 
 agent to effect a policy of insurance for the benefit of such agent, 
 and there is no disclosure of the agency, and nothing to lead the 
 broker to think that any third party is interested in the policy, 
 and the insurance is accordingly effected in the name of the agent 
 as owner, and a loss occurs, and the, policy is allowed, after the 
 loss, to remain in the broker's hands, and the latter then permits 
 the agent to get into his debt, not knowing him to be an agent, the 
 broker will have a lien as against the principal upon the policy, 
 and upon the money he receives thereon from the underwriters, to 
 the extent of the debt due to him from the agent, as well as for 
 his commission, and charges for effecting the policy (o). But if 
 there is the slightest indication of the agency to the broker, such" 
 as a declaration by a British subject in time of war that the 
 property is neutral (p), or a statement that the insurance is to be 
 effected "for a correspondent in the country" (q), or that the 
 property to be insured belongs to a merchant abroad who has 
 consigned it to the agent with full power of disposition over it, 
 and with authority to indorse the bill of lading (r), the broker will _ 
 have a lien only for his commission and charges for the insurance, 
 and not for the balance due to him from the agent. 
 
 Extinguishment of lien hy abandonment of possession. — If a bailee 
 who has a right of lien upon property in his possession voluntarily 
 parts with the possession of such property, the lien is gone ; so that 
 if he afterwards recovers possession of the property his right of lien 
 does not revive (s) ; but if it is stolen or taken away by a trespasser 
 or by fraud, and he gets it back again, his right of lien is not 
 extinguished (t). Possession of goods and chattels may be given 
 up, and the right of lien extinguished, although the goods and 
 chattels are never actually removed from the premises of the party 
 having the Hen {u). And, on the other hand, as the possession 
 of the servant is the possession of the master, it foUows that a 
 
 (m) Dresser v. Bosanguet, 32 Law J., (p) Maauss v. Henderson, 1 East, 337. 
 
 Q. B. 57 ; 4 B. & S. 460, 486. (0 Snook v. Davidson, 2 Campb. 218. 
 
 (») Richardson v. (?o««, 3 B. & P. 123. (>) Lanyon t. Blamhwd, ib. 697. 
 
 (o) Mann t. Forrester, 4 Campb. 61. (s) Sweet v. Pym, 1 East, 4. 
 
 Westwood T. BeU, ib. 355. Olive v. SmitTi, (t) Wallace v. Woodgate, E. & M. 194. 
 
 5 Taunt. 56. (") /wo&s v. Zatour, 2 M. & P. 205. 
 
 (J <J 
 
450 BAILMENTS. [CHAP. IX. 
 
 depositary or bailee who has a right of lien upon goods in his 
 possession does not lose his right by placing the goods in the hands 
 of his servant or agent for custody, who is to hold them at his 
 disposal. Warehousekeepers and whariingers to whom goods have 
 been delivered by masters of ships for safe custody, have been 
 held to be the servants of such masters holding the goods at their 
 disposal, so as to preserve the shipmaster's lien for the freight after 
 the goods have been taken out of the ship {v). 
 
 The right of lien being a mere personal right, which cannot be 
 parted with, it follows that a bailee who has got a lien cannot sell 
 his right to another, nor can he transfer, as we have just seen, the 
 property over which the lien extends, to another, without losing his 
 right of lien (x), unless the property has been pledged to secure 
 the repayment of money advanced, with an express or impHed 
 power of sale (y), for there is a clear distinction in this respect 
 between a lien, which is a mere personal right of detention, and a 
 pledge deposited to secure the repayment of money (2). An 
 innkeeper, consequently, cannot seU the horse of his guest for the 
 expense of his keep, except within the city of London (a). A 
 sheriff cannot sell an interest of this description, and he cannot, 
 consequently, seize property covered by the lien under an execution 
 against the party claiming the lien (6) ; but if the execution is 
 against the owner of the goods, he is entitled then to seize them, 
 after tendering the amount of the debt for which they are a secmity. 
 A person may, as we have before seen, reserve to himself, by 
 express contract, a right to take and to hold goods as a secm'ity for 
 the payment of a debt, so that he will be entitled to resume 
 possession of the goods after he has parted with them, and to re- 
 establish his lien, provided the rights of no third person have 
 intervened. 
 
 Statutory power of sale in discharge of a right of lien. — By the 
 Merchant Shipping Act, 1862, power is given to wharf or warehouse 
 owners, in certaia cases, to sell by public auction goods placed ia 
 their custody, and apply the proceeds of the sale in satisfaction and 
 discharge of the charges upon them (c). 
 
 Tender of the deit in extinguishment of the right of lienr— 
 Wherever a person has alien upon goods for the payment of money 
 due upon them, whether he be an nnpaid vendor ia possession of 
 goods sold, or a manufacturer or workman in possession of goods 
 that have been worked up or repaired by him, or a pledgee holding 
 
 (v) Reeves v. Cwpper, 5 B. N. C. 136. (a) Jones v. PewrU, 1 Str. 556. 
 
 (x) Cleric T. Gilbert, 2 B. N. C. 367. (6) Legg v. Svams, 6 M. & W. 42. See 
 
 (y) See JotasoTCv.Stear, 33 L. J., C.P. Young v. Lambert, L. K., 3 P. C. Ca. 
 
 130. u%. 
 
 (z) DonaU v. SwMing, L. E., 1 Q. B. (c) 25 & 26 Viet. o. 63, bb. 73—76. 
 585. 
 
SECT. 1.] EE-DELIVEEY TO JOINT-BAILOK. 451 
 
 chattels as a security for a debt, the lien may be at once extinguished, 
 and a right to the possession of the goods created, by a tender of 
 the money due upon them (d). Where a lease was deposited with 
 the defendants as a security for the repayment of 1501. on a 
 promissory note payable on demand, and the defendants agreed that 
 they would not enforce their remedy upon the note so long as the 
 maker should duly pay the interest thereon, the rent of the 
 premises, and what might from time to time be d.ue to them for 
 beer, and if he failed in any of these respects, the defendants were 
 to be at liberty, after notice, to sell the lease and to deduct the 
 expenses of the sale, the principal money and interest, and any 
 account then due from the plaintiff to the defendant, it was held 
 that the moment the amount of the note was paid or tendered, 
 there was an end of all the stipulations as to what should be done 
 with the lease in the event of the non-payment of the note and 
 interest, and that the plaintiff had a right to maintain an action of 
 detinue to recover back his lease (e). 
 
 Detention of goods and chattels, deeds and securities, h/ one of 
 several joint-ovjners or tenants in common. — "If two be possessed of 
 chattels personal in common by divers titles, as of a horse, an ox, 
 or a cow, &c., if the one take the whole to himself out of the pos- 
 session of the other, the other hath no other remedy but to take 
 this from him who hath done to him the wrong, to occupy in 
 common, &c., when he can see his time " (/). Where two have an 
 equal interest in a deed, and each may have occasion to use it, as 
 for instance, where the same deed grants Whiteacre to A, and Black- 
 acre to B, it is manifest that both cannot hold the deed at the same 
 time ; and to avoid any unseemly contest for the possession of it, 
 it has been held that he who first gets hold of it is entitled to keep 
 it. For fraud or force which may be used to get possession of the 
 deed, either party may perhaps have a remedy against the other ; 
 but the title to the deed is ambulatory between those who may 
 have an interest in, and may have occasion to use it, and each is 
 entitled to keep the deed from the other so long only as he actually 
 retains it in his custody and control, but no longer {g). 
 
 Be-delivery of chattels to one of several joint-bailors. — If an 
 action is brought by several joint bailors against a bailee for the 
 non-delivery of goods deposited in his hands by a joint-bailment 
 from aU of them, it is a good defence to, the action that the goods 
 bailed by the. plaintiffs to the defendant have been delivered up to 
 one of them. "It is said," observes Lord. Campbell; "that this is 
 no defence, because the contract of bailment was not to deliver 
 
 (d) HcUdifv. Dmies, Cro. Jac. 244. (/) Wtt.see. 32S. 
 
 (e) Chaton T. Ca/rrimgton, 15 C. B. 105. {g) Poster v. OraU, 12 C. B. 186. ' 
 
 G G 2 
 
452 BAILMENTS. [CIIAP. IX." 
 
 them except to the plaintiffs jointly. But as, in fact, one of the 
 plaintiffs has got the goods, the question arises whether he can sue 
 the defendants for giving them to himseK. It would he contrary to 
 all principle, and the cases show that it would be contrary to aU 
 law, if he could. I do not think an action could be maintained 
 against bankers in this position more than against others : but it 
 is not to be supposed they could therefore with impunity deliver 
 up to one person securities deposited with them to hold for several 
 persons. I think, in such a case, they would stand in the relation 
 of trustees for all the joint-bailors ; and there would be a clear 
 remedy in equity for the breach of trust in deliveriag the joint 
 property to one only of the cestui que trusts " (h). 
 
 SECTION" 11. 
 
 OF ACTIONS FOE THE NEGLIGENT MANAGEMENT, NEGLIGENT KEEPING, 
 AKD, UNLAWFUL DETAINING OF GOODS AUD CHATTELS. 
 
 Parties to he made plaintiffs. — ^Where injury has been sustained 
 by the servants of a bailee from the negligence of the bailor, in not 
 giving notice of the dangerous nature of the subject-matter of the 
 bailment, the servant is the proper person to sue for damages (i). 
 A mere gratuitous bailment of a chattel to another does not, as we 
 have seen, remove the chattel out of the possession of the bailor, 
 and does not prevent the latter from suing a third person who takes 
 the chattel out of the hands of the bailee and refuses to deliver it 
 to the bailor on demand (ante, pp. 363, 364). In cases of gratuitous 
 bailment, the bailee generally holds the chattels merely at the wiU 
 of the bailor, and is bound to return them whenever required so to 
 do. Where, therefore, brewers sell porter in casks, and lend the 
 casks to their customers until they are emptied, they may maintain 
 an action against a wrong-doer for taking and detaining the empty 
 casks {k). . And where chattels lent to hire have been permanently 
 injured or destroyed whilst in the hands of the bailed by a wrong- 
 doer, the bailor, or owner of the chattels, may maintain an action 
 on the case in respect of the damage done to his reversionary 
 interest in them. The mere outstanding right of the bailee to 
 
 (A) Brandon v. Scott, 7 EU. & Bl. 237 ; 553 ; 31 Law J., C. P. 137. 
 26 Law J., Q. B. 163. (J) Handera v. WiUiams, i Exoh. 343. 
 
 (») Farrant v. Banes, 11 C. B., N. S. 
 
SECT. 2.] ACTIONS OF DETINUE, ETC. — PAETIES. 453 
 
 the use of the chattels does not debar the owner of this right of 
 action (I)'. 
 
 In all cases of bailment of chattels by one person to another 
 for hire or reward, it is essential that the bailee should preserve his 
 dominion and control over the property, and his power of restoring 
 it to the owner. If, therefore, he parts with the possession of the 
 chattel, and places it under the dominion and control of a stranger, 
 the bailment is determined, and the owner has a right of a'ction for 
 the recovery of the thing bailed (m). 
 
 Where, after a bailment of chattels, the bailor has transferred 
 all his interest in the chattels to another, the bailee is entitled, as 
 we have seen, to have an order or authority from the bailor to 
 deliver them to his transferee, or a reasonable time to make inquiry 
 and ascertain the validity of the new title of the claimant before he 
 can be made responsible in damages for the non-delivery of the 
 chattels , to the latter (n). Where, for example, goods have been 
 bailed by the owner to a warehouse-keeper, to be kept, and the 
 owner has subsequently sold the goods to a purchaser, the ware- 
 house-keeper is not responsible for refusing to deliver the goods to 
 the purchaser without the production of a delivery-order from the 
 bailor, or some documentary evidence of title to the goods on 
 the part of the stranger who demands them; but he may, if he 
 pleases, at once attorn to the purchaser, and rely upon the title of 
 the latter (o). 
 
 If the bailee has received the chattels upon the terms that he is 
 to deliver them to the bailor, or to any person authorized by him to , 
 receive them, a bond fide, purchaser or mortgagee, who is in posses- 
 sion of a bill of sale, or assignment, or mortgage, executed by the 
 bailpr, transferring all the bailor's interest in the chattels to such 
 purchaser or mortgagee, may, on presenting such bill of sale or 
 mortgage to the bailee,, lawfully demand possession of the chattels, 
 and in case of the refusal of the latter to deliver them to him within 
 a reasonable time after the demand {anU, p. 326), may maintain an 
 action for the conversion or detention of the property (^), the bill 
 of sale or mortgage, signed by the bailor, being an authority or 
 direction to the bailee to deliver up the chattels to the purchaser 
 or mortgagee ; but if there be a mere oral agreement of sale, and no 
 warrant, or authority, or direction from the bailor for the delivery 
 of the goods, the refusal of the bailee to deliver them to the stranger 
 would be no proof of a conversion or of a wrongful detainer. It is 
 
 Q:)Mear'»y.Lond.&S.-'Wesl.BmL.Co., (o) OgU v. Atkinson, 5 Taunt. 762. 
 
 11 C. B., N. S. 850; 31 Law J.,C. P. 220. Cheesman v. Exdl, 6 Bxoh. 344 ; ante, 
 
 (m) Cooper v. WiUomat, 1 C. B. 682. p. 327. 
 
 («) Ante, pp; 326, 327. Lee v. Sayes, (p) FranUm v. Neate, 13 M. & W. 
 
 18 C. B. 607; 25 Law J., 0. P. 249. 434; 1 Roll. Abr. DemSue, C. 2, 3. 
 Solomons t. Dawes, 1 Esp, 82. 
 
454 BAILMENTS. [CHAP. IX. 
 
 to a case of this sort, where there has been a mere oral transfer of 
 chattels by a bailor, without any warrant or authority from the , 
 latter to the bailee to deliver them to the transferee, that the dictum 
 of Holt, C.J., must be taken to apply, that if A bail goods to 0, and 
 after give his whole right to them to £, B caimot maintain detinue 
 for them against C, because the special property that C acquires 
 by the bailment is not thereby transferred to B (§■). If the right 
 of property in the subject-matter of the bailment has been trans- 
 ferred by devise, the devisee may sue for the detention or loss of 
 the property, and it is no answer to the action to show that the 
 subject-matter of the bailment was lost in the lifetime of the 
 devisor, and has not been in the possession of the bailee since the 
 accrual of the title of the devisee (r). So, if the right of property 
 in title-deeds, or an heirloom, comes to the heir-at-law by descent, 
 the heir is the proper person to sue for their detention (s). 
 
 If the bailor is not himself the owner of the goods, but has some 
 special property therein, or is himself a bailee of them, and answer- 
 able, over to the real owner, he is entitled to maintain an action for 
 damage done to them, or for the loss of them (t). 
 
 Joint and separate rights of action. — If a chattel has been 
 deposited by two or more joint-owners of it in the hands of a 
 bailee, who has agreed to. keep it for them, it is not in the power 
 of one of them to take it out of his hands without the consent of 
 the others (m). If that were not so, each might demand the chattel, 
 and have an action for its non-delivery, and so the bailee might be 
 ^arassgd with as many actions as there were joint-owners (a;). But 
 if the bailee thinks fit to deliver up the goods - to one of the joiat- 
 bailors, a joint-action by all of them cannot afterwards be main- 
 tained against him, for the one who has got the goods cannot join 
 with the others in suing for the non-delivery of them (y). And if 
 the defendant is a mere wrong-doer, having got into his hands the 
 property of several joint-owners, none of whom have authorized him 
 to detain it, any one of such joint-owners may bring an action of 
 detinue against him (2). If several joint-owners allow one of them 
 to deal with their property, and place it in the hands of a bailee, 
 the latter is accountable to the owner with whom he deals (a), " as 
 if a charter be made to four, and one of them bails the charter to 
 
 (g) Rich y. Aldred, 6 Mod. 216. BuoUand, 2 Moore, 153. Harper v. Qod- 
 
 -(r) Goodman v. Boycott, 2 B. & S. 1 ; seK, L. R., 5 Q. B. 422 ; ante, p. 364. 
 
 31 Law J., Q. B. 69. (x) Attwood v. Ernest, 13 C. B. 889 ; 
 
 (s) Bro. Abr. Detinue, pi. 30, 45. 22 Law J., C. P. 225. 
 
 (t) Freenum v. Birch, 1 N. & M. 420. (y) Brandon v. Scott, 1 Ell. & Bl. 237; 
 
 NicoUs y: Bastard, 2 C. M. & R. 660; 26 Law J., Q. B. 163. 
 
 ante, pp. 362^364. (z) Broadbent \. Ledwwrd, 11 Ad. & B. 
 
 (u) Lord EUenborough, C.J., in May 209. 
 
 y. Haney, 13 East, 199. Nathan t. (a) Martin, B., Wahhe v. Provm, 8 
 
 ' • Exch. 852. 
 
SECT. 2.] ACTIONS OF DETINUE, ETC. — INTEEPLEADEE. 455. 
 
 keep, he alone, without the others, may bring detinue ; or all the 
 owners may be joiaed as plaintiffs, except in the case of deposits of 
 money in the hands of bankers " (&). Where two persons were 
 severally entitled to separate portions of the contents of a box 
 delivered by their agent to a railway company, to be carried for 
 both of them, and the box was lost, it was held that they might sue 
 joiatly for damages (c). 
 
 Power to compel rival claimants to establish their title hy garnish- 
 ment and liy interpleader. — By the common law, whenever one 
 person had deposited goods in the hands of another, to be re-delivered 
 to the bailor, and a third party came and claimed the goods of the 
 depositary, and brought an action of detinue for their recovery, 
 the bailee might pray garnishment, i.e., that the bailor might be 
 garnished or warned of the claim, made by the stranger upon the 
 depositary, and summoned to show to the court whether the goods 
 were his property or not ; and upon this prayer of garnishment a 
 scire facias issued against the depositor to appear and plead with 
 the plaiatiff, and the latter thus became the defendant to the suit 
 under the name of the garnishee, the first defendant, the depositary, 
 being considered out of court by the garnishment {d). By the 
 1 & 2 Wm. 4, c. 58, s. 1, it is enacted, that aU depositaries or 
 stakeholders who are sued in the superior courts, or the courts of 
 pleas of Lancaster or Durham, for the recovery of deposits held by 
 them, there being at the time other claimants thereon beside the 
 plaiatiff iu such action, may apply to the court after declaration, 
 and before plea, by affidavit or otherwise, showing that the 
 defendant does not claim any interest in the subject-matter of the 
 suit, but that the right thereto is claimed, or is supposed to belong 
 to some third party, who has sued, or is expected to sue, for the 
 same ; and that the defendant does not coUude with such third 
 party, but is ready to bring into court, or to pay or dispose of the 
 subject-matter of the action in such manner as the court, or any 
 judge thereof, may direct ; and, the court, or any judge thereof, 
 after such application has been made, may make a rule or order 
 calling upon such third party to appear and state the nature and 
 particulars of his claim, and maintain or relinc[uish it, and in the 
 meantime stay the proceedings in the action, and, finally, order 
 such third party to make himself defendant in the same, or some 
 other action, and generally dispose of the claims, and make such 
 rules or orders as may appear just and reasonable {e); and the 
 powers and authorities of this statute are, by 23 & 24 Vict. c. 126, 
 
 (6) The]. Dig. lib. ii., cap. 47, s. 8. C. P. 333. 
 
 Broadbent v. LedMo/rd, 11 Ad. & B. 211. {d) 3 Keeves, 448 ; Com. Dig. Pleader; 
 
 (c) Metcalfe v. Lond. and Brighton 2 x. 8. Rich v. Ald^ed, 6 Mod. 216. 
 
 MaU. Co., 4 C. B., N. S. 319 ; 27 Law J., (e) Ooggs \. Bernard, 2 Ld. Sajm'. 909. 
 
456 BAILMENTS. [CHAP. IX. 
 
 s. 12, made to extend to cases where the titles of the claimants 
 have no common origin, but are adverse to, and independent of, 
 each other (/). 
 
 Declarations against "bailees for loss of chattels. — If the plaintiff 
 complains of the loss of chattels delivered hy him to the defendant 
 to be safely kept, or to be mended or repaired, or to be dealt with 
 by the defendant in the way of his trade, it is sufficient for the 
 plaintiff to set forth the delivery by him of the chattels to the 
 defendant (describing them), and stating the purpose for which they 
 were delivered, and to allege generally that the defendant, having 
 received possession of the chattels from the plaintiff, did not take 
 due and proper care of them, and by reason thereof they became 
 wholly lost to the plaintiff (cf) ; but it is not now necessary to show 
 on the face of the declaration how the chattels got into the hands 
 of the defendant, or to allege that they were lost or destroyed 
 through his negligence. If the chattels have been delivered by the 
 plaintiff to the defendant, and the defendant is unable to return 
 them, from any cause whatever, the ordinary declaration in detinue 
 wni suffice (h). ' r' 
 
 In actions of detinue, the declaration formerly alleged that the 
 plaintiff delivered the chattels to the defendant, to be re-delivered 
 on request ; but this allegation of a bailment was wholly immaterial, 
 and not traversable, the gist of the action being the detainer of the 
 property (i); and the form given by the Common Law Procedure 
 Act simply alleges that the defendant detains from the plaiatiff 
 his goods and chattels (describing them), or his title-deeds of land 
 
 called in the county of , (describing the deeds), and 
 
 that the plaintiff claims a return of the goods and chattels, or 
 
 deeds, or their value, and £ for their detention (k). If any 
 
 special damage has resulted to the plaintiff from the detention, the 
 nature of it should be set forth on the face of the declaration. If, 
 for example, by reason of the detention by the defendant of the 
 title-deeds to an .estate, the plaintiff has been prevented from 
 selling or letting property to advantage, or from receiving money, 
 the fact should be stated and relied upon in aggravation of the 
 damages (t). 
 
 Becla/rations against bailees for damage to chattels. — Where the 
 plaintiff's declaration alleged that the defendant undertook, safely 
 and securely, to raise up several hogsheads of brandy of the 
 plaintiff then in a certain cellar, and to lay them down again in a 
 
 (/) MeyneU v. AngeU, 8 Jur., N. S. (h). Reeve T. Palmer, 5 C. B., N. S. 84. 
 
 12U ; 11 W. E. 122. Best v. Hayea, 32 Jones Y. Howie, 9 M. & W. 19. 
 Law J., Exch. 129. Tanner t. Ewro^an (i) Clossman v. White, 7 C. B. 56. 
 
 Banh, L. E., 1 Exeh. 261. (i) 15 & 16 Vict. c. 76, s. 59; and 
 
 (g) Doorman v. JenMns, 2 Ad. & B. Sohed. B. 29. 
 
 256. • (I) Goodman y. Boycott, ante, p. 454. 
 
SECT. 2.] ■ ACTIONS OF DETINUE, ETC. — PLEADINGS. 457 
 
 certain other cellar, and that the defendant and his servants, so 
 negligently and carelessly put down the hogsheads in the said 
 other cellar that, through want of care on their part, the casks were 
 sta^sed, and a great quantity of brandy was spilt, it was held that 
 the declaration disclosed a good cause of action, though it did not 
 allege that the defendant was a common porter, or that he was to 
 have any reward for his pains (m). 
 
 If the plaintiff complains of an injury done to a horse lent by him 
 to the defendant, it is sufficient to set forth the plaintiff's possession 
 of the horse, the delivery of it by the plaintiff to the defendant for 
 a certain specified purpose, or to be ridden in a moderate, careful, 
 and proper manner, and to aver that the defendant used the horse 
 for a different purpose from that for which it was lent, showing in 
 what way it was used, and that the defendant did not take due and 
 proper care of the horse, but used and managed it so carelessly and 
 imprudently that the horse was, through the carelessness and negli- 
 gence of the defendant, greatly injured and lessened in value. 
 
 Flea of not guilty. — In actions for loss of, or damage to, goods, 
 the plea of not guilty operates, as we have seen, as a denial only 
 of the wrongful act alleged to have been committed by the de- 
 fendant. Thus, ia' an action against a bailee for the loss of, or 
 damage to, goods delivered to him to keep, or to be carried, or 
 otherwise dealt with, the plea of not guilty will operate as a denial 
 of the loss or damage, but not of the receipt of the goods by the 
 defendant for the purpose set forth in the declaration, or of the 
 plaintiff's property in the goods (n). 
 
 Plea of non-detinet. — The plea of non-detinet, alleging that the 
 defendant does not detain the goods and chattels in the declaration 
 mentioned, operates as a denial of the detention of the goods by 
 the defendant, but not of the plaintiff's property therein ; and no 
 other defence than such denial is admissible under that plea (o). 
 If, therefore, the defence be that the defendant was justified in de- 
 taining the goods, in respect of some special property in them, or 
 as having a lien upon them, he must set forth such right specially 
 on the record. He cannot give in evidence, under the plea of non- 
 detinet, that the goods were pawned to him for money which had 
 not been paid; neither can he give in evidence a gift from the 
 plaintiff, for that proves that he does not detain the plaintiff's 
 goods, and must be put in issue by a plea denying the plaiatiff's 
 right of property in the goods {p). If the defendant claims a right 
 to retain possession of the goods on the ground that he is himself 
 
 fmV Coaqs v. Bernard, 2 Ld. Eayra. (o) Eeg. Gen. Hil. Term, 16 Vict. E. 
 
 909. 15 ; 1 Ell. & Bl. App. Ixxxi. 
 
 («) Eeg. Gen. Hil. Term, 16 Vict. E. (p) Rkha/rds v. Franlcum, 6 M. & W. 
 
 16 ; 1 Ell. & Bl. App. Ixxxi. Ixxxii. 420. 
 
458 BAILMENTS. [CHAP. IX. 
 
 joint-owner of them with the plaintiff, or that he is tenant in 
 common of them with him, his interest should be specially pleaded 
 and set forth upon the record (q). But under the general issue the 
 defendant may show that the goods belonged to a firm in partner- 
 ship, and were placed in the defendant's hands by a solvent partner, 
 to be sold for the purpose of paying the partnership debts, and that 
 they had been sold for that purpose (r), or that they were delivered 
 to a third person with the plaintiff's consent (s). 
 
 _ Pleas of delivery to one of several joint plaintiffs. — We have 
 already seen that it is a good defence to an action brought by 
 several joint plaintiffs against a defendant, for the recovery of 
 chattels deposited in his hands by a joint bailment from all of them, 
 to plead that, before the commencement of the action, the chattels 
 mentioned in the declaration were delivered by the defendant to 
 ■ one of the plaintiffs {ante, p. 451). 
 
 Pleas denying the plaintiff's property. — Under a plea alleging 
 that the goods and chattels in the declaration mentioned were not, 
 nor are they, the goods and chattels of the plaintiff, the defendant 
 may set up a, jus tertii, and show that the goods were not the goods 
 of the plaintiff at the time they were delivered to the defendant ; 
 that the defendant had no notice thereof until the true owner 
 afterwards gave notice of his title, and forbade the defendant to 
 deliver up the goods to the plaintiff (^). It has been held by the 
 Court of Queen's Bench that the defendant, under a plea denying 
 that the goods detained were the goods of the plaintiff, may show 
 that he had a lien upon them (v)^; but the Court of Exchequer has 
 come to a different decision, and holds, that if' the defendant sets 
 up a right to detain on the ground of lien, he must plead such 
 right specially on the record. "We are aware," observes Alderson, B., 
 " that this is contrary to an opinion of the Court of Queen's Bench 
 in the case of Lane v. Tewson ; but we cannot, agree with that 
 decision. The case was not fully argued before the court, nor were 
 the authorities, which we think have decided that question, fuUy 
 laid before them " {x). 
 
 Pleas justifying detention under a claim of lien {y) usually allege, 
 that the chattels mentioned in the declaration were delivered by 
 the plaintiff to the defendant, to be worked up, repaired, or mended, 
 by the defendant for hire in the way of his trade ; and that the 
 defendant worked up, repaired, or mended, the chattels, and that a 
 certain" specified sum of money became due to the defendant in 
 
 (S) Mason v. FwrnM, 12 M. & VP". 648. Q. B. 137 ; Dwois v. Nest, 6 C. & P. 
 
 if) Morgan v. Ma/rquis, 23 Law J., 169. 
 
 Exch. 21 ; 9 Exch. 146. («) JOme v. Tewson, 12 Ad, & E. 116. 
 
 (s) Anderson \. Smith, 29 Law J., Exch. (x) Mason v. Farnell, 12 M. & W. 684. 
 
 460. (y) Bamewall v. Williams, 7 M. & Gr. 
 
 (t) See BiMle v. Bond, 34 Law J., 403 ; amte, pp. 437—450. 
 
SECT. 2.] ACTIONS OF DETINUE, ETC. — EVIDENCE. 459 
 
 respect of such work and labour, and that the plaintiff has not paid 
 or tendered to the defendant the said sum so due to him, and that 
 the defendant detained the chattels as security for the payment 
 thereof If the defendant wishes to set up a general lien for work 
 done on other goods of the plaintiff, the defendant should show on 
 the face of his plea whether he founds his claim on custom or con- 
 tract. If he claims a general lien by the custom of trade, he should 
 show the nature of the trade he carries on ; the existence of the 
 custom; the delivery to him of goods, from time to time, to be 
 worked upon or dealt with by him for hire in the way of his trade, 
 subject to such custom ; the dealing with the goods by him, so as 
 to entitle him to his hire ; the amount due to him at the time he 
 received the goods; the work done by him thereon, and his claim, 
 to detain them until he has been paid the general balance due to 
 him (s). 
 
 Pleas of payment of money into court. — By the Common Law 
 Procedure Act, 1860 (2.3 & 24 Vict. c. 126), s. 25, the defendant, in 
 any action for detaining the goods of the plaintiff, may, by leave of 
 the court or a judge, and upon such terms as they or he shall think 
 fit, pay into court a sum of money to answer the claim of the plain- 
 tiff in respect of the goods alleged to be detained, the payment to 
 be pleaded according to the provisions of the Common Law Pro- 
 cedure Act, 1852, and the like proceedings may be had and taken 
 thereupon as to costs and otherwise. 
 
 Evidence — Proof on the part of the plaintiff. — Although the only 
 plea on the record be a plea of not giiilty, or non-detinet, the plain- 
 tiff must nevertheless give some general evidence of a right on his 
 part to have the chattels delivered up to him. If he proves that 
 the goods were at one time in his possession, and that they were 
 taken away by the defendant; or if the plaintiff shows that he him- 
 self delivered the goods to the defendant, and afterwards demanded 
 them back again, and that the defendant refused to deliver them, 
 he establishes a, primd facie right to the possession of the goods, 
 and will be entitled to a verdict under the plea of not guilty. But 
 if the goods were not delivered by the plaintiff to the defendant, or 
 taken out of the possession of the plaintiff, there is nothing to show 
 that he has any right to have them {a). If it appears, on the plain- 
 tiff's own showing, that he and the defendant are joint-owners of the 
 goods, or tenants in common of them, he does not establish any 
 ri^ht to take them out of the hands of the defendant, nor does he 
 prove that the defendant detains the goods from the plaintiff, for 
 one of several joint owners, or tenants in common of a chattel, who 
 
 (z)- Coombs V. Noad, 10 M. & W. 127. (a) Land v. North, i Doug. 266,- ante, 
 
 Owipston'y. Haigh, 2 B. N. C. 449. pp. 369,370. 
 Leuckhwrt v. Cooper, 3 it. 99. 
 
460 BAILMENTS. [CHAP. IX. 
 
 has got possession- of the chattel, has a right, as we have seen, to 
 retain such possession (S). 
 
 WheTe a testator, two years before his death, gave some railway- 
 debentures to the defendant, intending to transfer the money 
 secured by them to the defendant, and delivered the debentures to 
 the defendant, who took possession of them, and locked them up 
 in his own desk, but no transfer of the debts secured by the deben- 
 tures was ever made, in accordance with the Act of Parliament 
 regulating the transfer of such securities, and after the testator's 
 death his executors sued the defendant for detaining the deben- 
 tures, it was held that they were not entitled to recover them (c). 
 
 The charters and evidences of title to realty belong to the 
 persons in whom the legal interest in the property is vested (cZ) ; 
 but the right to the possession of bonds and securities for money 
 remains vested in the parties beneficially interested, who have got 
 possession of the security and claim to hold it (e). 
 
 The detention necessary to support an action of detinue is an 
 adverse or wrongful detention. It must be proved that the defen- 
 dant withholds the goods, and prevents the plaintiff from having 
 the possession of them. There should be evidence of a request on 
 the part of the plaintiff to have the goods delivered to him, and a 
 refusal to deliver on the part of the defendant. A defendant, 
 having the goods in his possession, is not by reason thereof bound 
 to seek out the plaintiff and send them to him. The plaintiff must 
 come for them (/). It may be that the goods are the plaintiff's, 
 and yet the detention of them by the defendant may be perfectly 
 lawful (g). 
 
 If the plaintiff makes out &primd facie right to the possession 
 of the chattels, and shows that he has demanded them, and that 
 the defendant detains them from him, the title or right of property 
 in the goods cannot be investigated unless it has been put in issue 
 by a plea traversing the plaintiff's right of property. 
 
 Evidence for the defence. — As the authorities show that it is no 
 answer to an action of detinue, when a demand is made for the re- 
 delivery of a chattel, to say that the defendant is unable to comply 
 with the demand, by reason of his own negligence or breach of 
 duty, it is clearly no answer to say that he has lost the chattel, and 
 is consequently unable to re-dehver it to the plaintiff Qi). 
 
 If the defendant relies upon a plea denying the plaintiff's right 
 
 (6) Foster v. Cmhl, 12 0. B. 151; ante, (e) OUver t. Oliver, ante, p. 337. 
 
 pp. 329, 330, 451. (/) CkmenU v. FUght, 16 M. & W. 
 
 (c) Barton v. Gamer, 3 H. & N. 389 ; 42 ; Fitz. Nat. Brev. 138 A. 
 
 27 Law J., Exch. 390. KeUack t. Niclwl- (g) dossnum v. White, 7 C. B. 55 
 
 son, Gio. Eliz. 496. {h) Reeve v. Palmer, 5 C. B.,- N. S. 90, 
 
 {d) Ante, pp. 336, 337. Searle v. Law, 92. Goodmam v. Bm/cott, ante, p. 454. 
 
 15 Sim. 390. ■ 
 
SECT. 2.] ACTIONS OF DETINUE, ETC. — EVIDENCE. 461 
 
 of property in, or rigM of possession of, the goods, the defendant 
 must prove Ms title to them. A bailee is not estopped, as we have 
 seen, from showing that the bailor had a defeasible title, and that 
 his title has been defeated by matter subsequent to the baOmLent or 
 to the recognition of the title by the defendant (i). He may refuse 
 to re-deliver the goods to the bailor on the ground that they are the 
 property of another person who has demanded and received them, 
 or who has forbidden the baUee to part with the possession of 
 them (k) ; but the bailee caflnot, if the possession of the bailor was 
 a lawful possession, and the bailment was not founded in fraud, of 
 his own accord set up the jtos tertii (I). He can set up the title of 
 another only " if he defends upon the right and title and by the 
 authority of that person '' (m). But if the bailor was a trespasser 
 or a thief in possessing himseK of the goods, or the bailment was 
 made with intent to defraud, the bailee may justify his refusal to 
 deliver them up to the bailor, whether the true owner has or has 
 not interposed to prevent delivery. 
 
 Where the plaintiff in an action for the detention of plate 
 proved that he had pawned the plate with the defendant, and after- 
 wards sought to redeem it, and tendered the amount due upon itj 
 but the defendant refused to deliver it up, it was held that the 
 defendant might, under a plea alleging that the plate was not the 
 property of the plaintiff, show that the plaintiff had, prior to the 
 deposit of the plate with the defendant, transferred it by a bill of 
 sale to a purchaser, who, nevertheless, allowed the plaintiff to con- 
 tinue in possession of it ; that the plate had been deposited with 
 the defendant in fraud of such purchaser, and that the defendant 
 detained the plate by the order and under the authority of the 
 latter (n). 
 
 Proof of abandonment of possession before commencement of action. 
 — It is no answer to an action for detaiaing goods to show that the 
 defendant abandoned possession of the goods before action, by 
 delivering them over to some third person. The evidence of the 
 detention is, that the defendant, having taken possession of the 
 plaintiff's chattel, does not return it when demanded (o). But if 
 the defendant has parted with the possession of the property before 
 the plaintiff's title to it accrued, he has not then detained it as 
 against the plaintiff, and is not liable in detinue. Thus, where the 
 defendant took possession of goods to which he conceived himself 
 to be entitled under a wiU, which turned out to be invalid from 
 
 li) Thorne v. TiOwry, 3 H. & N. 534 ; (m) PoUock, C.B., Thorne v. Taiury, 
 
 27 Law J., Bxoh. 407 ; <mte, pp. 368, Blackburn, J., BiddU v. Bond, ut sup. 
 
 ggg ' Bov/rne v. Foslroohe, 34 Law J., C. P. 
 
 (h) SheOmry t. - Scotsford, Yelv. 22. 164. 
 
 Bmle T.' Bond, ante, pp. 327, 458. («) Cheesmm v. ExaU, 6 Exch. 344. 
 
 (l) Armory v. Delamirie, 1 Str. 505. (o) /eww v. Lowk, 9 M. & W. 19. 
 
462 BAILMENTS. [OHAP. IX. 
 
 want of due execution, and before letters of administration were 
 taken out, and before there was any legal representative appointed 
 with authority to demand and receive the goods, the defendant 
 delivered them back to the person from whom he received them, 
 and then the plaintiff took out administration and demanded the 
 property of the defendant, it was held that he could not recover, as 
 the defendant had never detained the goods as against him (p). 
 But where title-deeds were deposited with the defendant by the 
 testator, and lost by the bailee during the lifetime of the testator, 
 and the plaintiff became entitled to the possession of the deeds by 
 devise, it was held that in such a case the loss thereof by the 
 defendant was no answer to the plaintiff's claim to the deeds {q). 
 
 Damages recoverable — Orders for delivery of the specific tMnig 
 detained. — In the old action of detinue, the defendant had the 
 option of retaining possession of the chattel detained, paying to the 
 plaintiff the sum at which the jury thought proper to assess its 
 value (r). " The judgment," observes Frowike, C. J., " is, that the 
 plaintiff shall recover the goods or their value ; then shall issue a 
 writ to the sheriff to distrain the defendant to deliver the goods, 
 and if he will not, then the value as it is taxed by the inquisition. 
 And so it is in the election of the defendant to deliver to the 
 plaintiff the goods or the value " (sj. This option on the part of 
 the defendant being felt to operate as a hardship upon the plaintiff 
 in many cases, it has been taken away* by the Common Law 
 Procedure Act, 1854, which enacts, s. 78, that the court or a 
 judge shall have power, if they or he see iit so to do, upon the 
 application of the plaintiff in any action for the detention of any 
 chattel, to order that execution shall issue for the return of the 
 chattel detained, without giving the defendant the option of 
 retaining such chattel upon paying the value assessed, and if the 
 chattel cannot be found, and unless the court or a judge should 
 otherwise order, the sheriff, shall distrain the defendant by all his 
 lands and chattels in the sheriff's bailiwick, till the defendant 
 render such chattel, or, at the option of the plaintiff, that he cause 
 to be made of the defendant's goods the assessed value of such 
 chattel : provided that the plaintiff shall, either by the same or a 
 separate writ of execution, be entitled to have made of the 
 defendant's goods the damages, costs, and interest in such action. 
 
 The jurisdiction of the judge, udder s. 78 of this statute, is 
 solely applicable to a case where the valiie is found, so that no 
 order can be made where such value has not been found if). The 
 
 . (i?) Crossfidi V. Smh, 8 Exoh. 828. (»•) PhilUps v. Jones, 15 Q. B. 867. 
 
 (?) Goodman v. Boycott, 2 B. & S.. 1 ; ' (*) .Keilw."64 b ; YelT. 71.- 
 
 31 Iiaw J., Q. B. 69. Per Wightoan, J., («) CTiilton v. Cmrington, 15 C. B. 730; 
 
 diss. Blacltburn, J. 24 Law J., C. P. 78. 
 
SECT. 2.] ACTIONS OF DETINUE, ETC. — DAMAGES. 463 
 
 regular and legal finding of the jury, under s. 78, is a finding of so 
 much for the value of the thing detained, and so much by way of 
 damages for its detention. If the value of the chattel is not 
 assessed by the jury, the course provided by s. 78 is not applicable. 
 The Court of Chancery has also jurisdiction to order a specific chattel 
 to be delivered up to the person seeking to enforce- his right to it, 
 ■where the latter has not fixed the price of the article, or assessed 
 its value, and thereby furnished the measure of his own damages (u). 
 
 Assessment of value. — The value of the thing detained should be 
 assessed at the highest price it bore in the market at any time 
 during the period of its detention (x) ; and where the value is 
 doubtful, and the defendant , might have returned it if he had 
 thought fit, every fair presumption and inference should be made 
 in favour of the owner of the property seeldng its restitution, and 
 against the wrong-doer who has detained it from liim. But where 
 the value of the article lies peculiarly within the knowledge of the 
 plaintiff, he should prove the value of it, in order to enable the juiy 
 to make a correct assessment of the damages. Thus, when he sues 
 for the detention of letters and documents, he should prove the 
 nature of the letters, and of what use they were to him (y). If he 
 sues for the detaining of title-deeds, he should prove the value of, 
 the property to which they refer, and that the deeds are essential 
 to the establishment of the title, and he will then be entitled to 
 have the damages assessed at the value of the estate (z). 
 
 Having assessed the value of the thing detained, the jury should 
 then assess a certain sum by way of damages for the detention 
 of it. Those who take upon themselves to detain the property 
 of another are answerable for all the consequences that naturally 
 result, in the ordinary course of thiags, from the wrongful act (a). 
 
 Assessment of damages where the vjhole, or part, of the goods have 
 heen delivered wp after action. — The object of an action for detaining 
 o-oods is to recover the goods in specie, or their value to be assessed 
 by a jury, and also damages occasioned by their detention. This 
 object is only partially answered by the delivery of the goods to 
 the plaintiff, and their acceptance by him after the commencement 
 of the suit : the plaintiff having a right to recover by the verdict 
 of the jury the damage he has sustained by reason of the goods 
 having been improperly detained. If all or any of the goods have 
 been delivered up after suit", the plaintiff can have no judgment 
 to recover them or their value, but he may have judgment to 
 
 (m) Bowling v. Bel^emamn, 2 Johns. & (y) Anderson v. Passman, 7 0. & P. 
 
 H 544 ^^'^■ 
 
 \x) Archer </. WiUimm, 2 C. & K, 27. (z) Roll. Abr. Dbtinub, E. 
 
 Barrow V. 4ra««d 8 Q. B, 609, (a) Dams v. Lond. and North-West. 
 
 Pail- Co., 7 W, E. 105. 
 
464 BAILMENTS. [CHAP. IX. 
 
 recover damages for their detention if the plaintiff has sustained 
 any ; and for the residue not delivered up, the plaintiff may have 
 the usual judgment to recover them or their value, and damages 
 for their detention (6). In an action of detinue for several goods, 
 which were collectively valued at one sum in the declaration and 
 by the jury, it was held that if all the goods were not given up — 
 if one article was withheld — the defendant was liable for the value 
 of all ; but in detinue for two things, the defendant may before 
 verdict give up one, and plead as to the other (c).- If there is a 
 good defence to part of the goods, by reason that the defendant was 
 always ready to deliver them, the jury must assess the value of the 
 residue of the goods, and damages for the detention, but none as to 
 the goods delivered up. Jf there was no defence as to them, then the 
 jury must assess the value of the residue of the goods, and damages 
 for the prior detention of those that were delivered up {d). . 
 
 The jury may iind the fact of the return or re-delivery of the 
 chattel specially, and confine themselves to an assessment of 
 damages for the detention of it. In an action for detaining railway- 
 scrip, which had been delivered up to the plaintiff after the 
 commencement of the action, under a judge's order, it was held 
 that the judge was warranted in directing the jury at the trial, that 
 in estimating the damages they might take into consideration the 
 difference in the value of the scrip at the time of the demand and 
 the time of its delivery to the plaintiff under the judge's order (e). 
 
 Where railway-scrip shares or stock have been unlawfully 
 detained after denJand, and given up after the commencement of 
 the action, the measure of damages is the highest supa the scrip 
 could have been sold for during the period of its detention, 
 deducting the value of it at the time it was received back by the 
 plaintiff. The wrong-doer cannot get off with less than that, and 
 may have to pay greater damages (/ ). 
 
 "Whenever the defendant has wrongfully detained the plaintiff's 
 chattels, or has wrongfully withheld from him the means of 
 obtaining possession of them, he is answerable for all the loss 
 naturally resulting in the ordinary course of things from his 
 wrongful act, provided the special damage is specified and claimed 
 in the plaintiff's declaration (J). 
 
 Evidence in mitigation of damages. — A defendant who has 
 wrongfully detained the plaintiff's horse cannot make the expense 
 of the horse's keep, whilst he was wrongfully detained, a ground 
 for reduction of the damages (h), 
 
 (h) Orossfield t. Such, 8 Exch. 165; 22 (e) WilUam v. Archer, 5 C. B. 318. 
 
 Law J., Exoh. 65. Barrow v. Amaud, 8 Q. B. 609. 
 
 (c) Bro. Abr. Tendbb, pi. 39, (/) Archer v. WUUams, 2 0. & K. 27. 
 
 {d) Crossfidd v. Such, ut sm Pmly Ig) Bmrow v. Arrmwd, 8 Q. B. 610. 
 
 V. Hony, 2 W. Bl. 853. "^ ' • > ^J^■^ Warmer v. ^i^ffi, 2 C. & K. 36. 
 
465 
 
 CHAPTER X. 
 
 OF NEG-LIGBNCE OF BAILORS AND BAILEES— LIABILITIES OF 
 
 COMMON CARRIERS, COMMON FERRYMEN, COMMON 
 
 INNKEEPERS AND LODGING-HOUSE KEEPERS (o). 
 
 Section I. — Of negligence and breach of 
 duty on the part of common carriers. — 
 Of the duties and responsibilities of 
 common carriers — Who may be said 
 to be a common carrier — Of the public 
 profession of railway companies made 
 through the medium of their time- 
 tables — Of the duty of railway and 
 canal companies to afiord all reason- 
 able facilities for the carriage of passen- 
 gers, merchandise, and chattels — Loss 
 of goods hy common carriers — Con- 
 cealment of risk by consignors — Con- 
 tributory negligence of consignors — 
 Inability of the common carrier to rid 
 himself of the public duties of his pro- 
 fession and calling — Statutory exemp- 
 tion of common carriers from liability 
 in respect of the loss of gold and silTer, 
 ajid valuables, when the value has not 
 been declared — ^By whom the declara- 
 tion of value is to be made and the in-" 
 creased rate of carriage paid — ^Articles 
 to which the statute extends — Loss of 
 goods from theft by common carrier's 
 servants— Notices, conditions, and spe- 
 cial contracts by railway companies — 
 What are just and reasonable condi- 
 tions — Commencement and duration 
 of the liability of the common carrier — 
 Deliveiy of goods at the place of desti- 
 nation — ^Delivery of luggage at railway 
 stations — ^Acceptance of goods to be 
 
 carried beyond the limits of a parti- 
 cular line of railway — Loss of luggage 
 by railway companies — Loes of mer- 
 chandise carried as luggage — Effect of 
 the refusal of the consignee to receive 
 the goods — Landing of goods by ship- 
 owners — Lien of common carriers — 
 Railway charges — Packed parcels — 
 Passenger fares — Right to alight at 
 intermediate stations — Negligence of 
 common ferrymen. 
 
 Section II. — Negligence and ireacJi of 
 duty on the part of common innkeepers 
 and lodging-house hewers. — ^Who may 
 be said to be a common innkeeper — 
 Loss of goods by common innkeepers 
 — Limitation of the liability of inn- 
 keepers — Deposit of property with 
 innkeepers — Losses occasioned by the 
 misconduct of the guest — Lien of inn- 
 keepers — Liability of lodging-house 
 keepers. 
 
 Section III. — Eemedies against common 
 carriers and common innkeepers. — Sum- 
 mary proceedings against railway com- 
 panies for not receiving and forwarding 
 traffic — Parties to actions against com- 
 mon carriers and common innkeepers 
 — Pleadings — Defences — Endenoe — 
 Damages recoverable — Injunction to 
 enforce compliance with the Railway 
 and Canal Traffic Act. 
 
 SECTION I. 
 
 OF NEGLIGENCE AND BKEACH OF DUTY ON THE PART OF 
 COMMON CAKRIEES. 
 
 Duties and responsibilities of common carriers. — Every common 
 carrier is bound to accept and carry all such things as he publicly 
 
 (a) See further as to common carriers, and lodging-house keeper?, ch. 10, s. 2, 
 Addison on Contracts, ch. 13 ; innkeepers 6th ed, ' 
 
 H H 
 
466 NEGLIGENCE OF COMMON CAEEIEES. [CHAP. X. 
 
 professes to carry for all persons who are ready and willing to pay 
 Mm his customary hire, provided he has room in his cart or carriage 
 for their conveyance, and has declared his intention to set out on 
 his accustomed journey (6). He is s bound to carry them to and 
 from the places to which he professes to carry, although one of 
 those places may he without the realm (c) ; for whenever a man 
 undertakes the public ofi&ce or profession of a common carrier of 
 goods he undertakes a public trust for the benefit of the rest of his 
 fellow-subjects, and is bound to serve the subject in all the things 
 that are within the reach and comprehension of such an office, 
 under pain of an action against him (d). By the 29 & 30 Vict. 
 c. 69, however, s. 6, no warehouse- owner or carrier is bound to 
 receive or carry any goods which have been declared, by Order in 
 Council, to be " specially dangerous," such as petroleum (e), nitro- 
 glycerine (/), &c. ; and no person shaU deliver such goods to any 
 warehouseman or carrier without marking' upon them their name 
 and description, &c. ; and also giving a notice in writing to such 
 warehouseman or carrier, under a penalty of 600^. (s. 3). A carrier 
 is not bound to carry goods by the shortest route, but, only by the 
 route by which he usually carries them, and which he professes to 
 
 go iff)- 
 
 The nature and extent of the employment or business which 
 the common carrier expressly or impliedly holds himself out as 
 undertaking will regulate the extent of his rights, duties, and 
 responsibilities. If he selects a particular liae or description of 
 business, he cannot, so long as he adheres to it with good faith, be 
 compelled to go beyond it. A common carrier of merchandise, for 
 example, cannot be compelled to carry coals, marble, money, or 
 bank-notes, dogs, pigs, horses, or live animals. A common carrier 
 of passengers only cannot be compelled to carry merchandise, and 
 a common carrier of merchandise and parcels cannot be compelled 
 to carry passengers (h). But he may, if he pleases, carry, under a 
 special acceptance or a special contract, any article which he does 
 not profess to carry, and does not commonly carry, and by this 
 special contract he may define the nature and extent of his engage- 
 ment, and the degree of risk he will incur, stipulating that in the 
 particular transaction he is not to be regarded as beiag in the 
 
 (5) Bac. Abr. Careiees, B. Pichford glycerine cajmot be manufactured, sold, 
 
 V. Gramd Jimctum Mail. Co., 8 M. & W. stored, or carried, except under a license 
 
 372. from a Secretary of State. But a carrier 
 
 (c) Crouch T. Zand, and North- West who carries it in ignorance is exempt 
 
 Mail. Co., 14 e. B. 290 ; 23 Law J., C. P. from penalty, s. ,^. 
 ^^" „ T^ ., - (ff) ^^^ Willes, J., Myers r. LonA. Und 
 
 {d) Keilwey, 50, pi. 4. South- West. Ewy., L. E., 5 C. P. 3. 
 
 (c) See further as to the carriage and (h) Johnson y. Mid. Mail. Co., 4 Bxch. 
 
 storage of petroleum, 34 & 35 Vict. c. 105. 373. 
 ' (/) By 32 & 33 Vict. c. 113, nitro- 
 
SECT. l.J WHO IS A COMMON CAERIER. 467 
 
 exercise of kls public employment, but as carrying in a private 
 capacity, and incurring no responsibility beyond tbat of an ordinary 
 bailee for Mre, answerable only for his own misconduct and negli- 
 gence, and that of the servants and workmen he employs for 
 executing the work (i). 
 
 Every steam-boat, railway, or other company, or person carrying 
 animals for hire, is bound to cleanse and disinfect the vessels, pens, 
 carriages, trucks, &c., used for such purpose (A). Every railway 
 company is also bound, on the written request of the consignor or 
 person in charge of any animals carried by them, to provide the 
 animals with food and water at such stations as the Privy Council 
 may direct, and will have a lien for the reasonable expense of 
 supplying such food and water on the animals so supplied, and also 
 on any other animals carried for the same consignor (I). 
 
 Every common carrier of passengers with luggage is bound to 
 take the customary quantity of luggage with each passenger, con- 
 sisting of articles of clothing, and such things as a traveller, 
 according to the habits or wants of the particular class to which he 
 belongs, usually carries with him for his own personal use or con- 
 venience, either with reference to the immediate necessities, or to 
 the ultimate purpose, of the journey, but he is not bound to carry 
 merchandise or articles wholly unconnected with luggage, unless he 
 professes to carry merchandise, or unless the traveller tenders or is 
 ready to pay the customary hire for merchandise (m). Deeds and 
 money carried by an attorney in his portmanteau for use in the 
 causes in which he may be engaged are not " ordinary luggage " for 
 which a railway company is responsible (n), nor is a child's rocking- 
 horse (o), nor sheets and blankets intended for the use of the 
 passenger's household when permanently settled (p), but a chro- 
 nometer is, it seems, luggage for a master mariner (q). 
 
 Who inay he said to he a common carrier. — Every person who 
 plies with a carriage by land, or a boat or vessel by water, between 
 different places, and professes openly to carry passengers and goods 
 for hire, is a common carrier. Such are railway companies, who 
 profess to carry passengers, parcels, and merchandise from one place 
 to another, stage-coach and stage-waggon proprietors, lightermen, 
 hoymen, barge-owners, canal boatmen, and the owners and masters 
 of ships and steamboats employed as general ships for the trans- 
 
 (i) See post, p. 482. Ma/rtm v. Great (n) PheVpi v. Lond. and NoHh- Wat. 
 
 IruMan PenmsvJm- Rail. Co., L. R., 3 EaU. Co., 34 Law J., C. P. 259. 
 
 •gjgjj 9 (o) Hudstonv.MidlcmdRvjy.jZ^lj. 3., 
 
 (Ic) 32 & 33 Vict. c. 70, s. 62. See Cox Q. B. 213 ; L. E., 4 Q. B. 366. 
 
 V Gt East. Rwy., post, p. 491. (p) Macrow r. Gt. Western Rwy., L. E.., 
 
 (l) 32 & 33 Vict. c. 70, g. 64. 6 Q. B. 612. , , , „ , 
 ■ (m) Great Northern Rail. Co. T. 8Up- (?) Le Conteur v. Lond. and South- 
 herd, 8 Exch. 30 ; 21 Law J., Exch. 114. West. Rail. Co., L. B., 1 Q. B. 54. 
 
 H H 2 
 
468 NEGLIGENCE OF COMMON CAERIEKS. [CHAP. X. 
 
 portation of all persons ofifering themselves or their goods to he 
 conveyed for hire to the port of destination (r). The owner of a 
 cart or carriage who does not ply regularly for hire to a particular 
 destination, but merely lets out a private carriage, with horses and 
 driver, by the hour, day, or job, to proceed to any destination 
 ordered by the hirer, is not a common carrier. A London cab- 
 driver or hackney coachman, for example, is not a common carrier (s). 
 
 Public profession of railway companies through their time-tables 
 and toll-tables. — If a railway company publishes, or authorizes the. 
 publication of a time-table, representing that a train will start at a 
 particular hour to a particular place, and no ti*ain is prepared, the 
 company is responsible in damages to all persons who have acted 
 upon the faith of the representation, and have bfeen deceived and 
 put to expense, and have sustained damage thereby {t). The com- 
 pany make a continuous representation whilst they continue to hold 
 out printed or written papers as being their time-tables, and they 
 thereby make a public profession that they will exercise their 
 vocation of common carriers, and dispatch passengers or goods, as 
 the case may be, to certain specified places (w) at or about the time 
 named in such time-tables ; and if they fail to do so they commit 
 a breach of their duty as common carriers, and are responsible in 
 damages to those who tender themselves or their goods for con- 
 veyance at the appointed time, and find that there is no train about 
 to start {v). But the sticking up of a table of tolls at the different 
 stations does not imply that the company carries all the things 
 mentioned therein from each station {x). The mere taking of a 
 ticket is not sufi&cient evidence of a contract to convey a passenger 
 to a certain place within a given time; the time-bills must be 
 produced to prove the contract {y). 
 
 Duty of railway and canal companies to afford reasonable facilities 
 for the carriage of passengers, merchandise, and chattels. — By the 
 EaUway and Canal Traffic Act (17 & 18 Vict. c. 31) it is enacted 
 (s. 2), that every railway company and canal company shall, accord- 
 ing to their respective powers, afford all reasonable facilities for 
 the receiving, forwarding, and delivering of traffic upon and from 
 the several railways and canals belonging to or worked by such 
 companies respectively, and for the return of carriages, trucks, boats, 
 and other vehicles ; and no such company shall make or give any 
 
 (»•) Bao. Ab. Cabkiees, A. Zovett v. (v) Denton v. Gt. Northern Sail. Co., 5 
 
 ffobba, 2 Show. 127. Ingate v. Cliristie, EU. & Bl. 868 ; 25 Law .J., Q. B 129. 
 
 3 0. & K. 61. Oxlade, In re, 1 C. B., N. S. 454. 
 
 (s) Brind v. Dak, 8 C. & P. 207. Rosa v. (x) Oxlade v. North-East. BaU. Co., 15 
 
 Hia, 2 C. B. 887 ; 15 Law J., 0. P. 182. C. B., N. S. 680 : 33 Law J., C. P. 171 
 '«) Pod, ch. 18, s. 1 , - ~ . _ ..' -. 
 
 «) Not necessarily 
 
 rtest route, Myers 
 
 y., J^. R,, 5 P, P, 1, 
 
 (t) Post, ch. 18, s. 1. (y) Hurst mMU mstJMLCo., 34 Law 
 
 («) Not necessanly, however, by the J., C. P. 265.ZSiT'B^gllSii{?oji v. Gt. 
 shortest route, Myers v. L. & South- West. West. Rail. Co., 35 Law J., C. P 123. 
 
SECT. 1.] DUTIES OF RAILWAY AND CANAL COMPANIES. 469 
 
 undue or unreasonable preiference or advantage to or in favour of 
 any particular person or company, or any particular description of 
 traffic, in any respect whatsoever ; nor shall any such company 
 subject any particular person or company, or any particular descrip- 
 tion of traffic, to any undue or unreasonable prejudice or disad- 
 vantage in any respect -whatsoever (2) ; and every railway company 
 and canal company having or working railways or canals which 
 form part of a continuous line of railway or canal, or railway and 
 canal communication, or which have the terminus, station, or wharf 
 of the one, near the terminus, station, or wharf of the other, shall 
 afford all due and reasonable facilities for receiving and forwarding 
 all the traffic arriving by one of such railways or canals to the 
 other, without any unreasonable delay, and without any such pre- 
 ference, or advantage, or prejudice, or disadvantage, as aforesaid, 
 and so that no obstruction may be offered to the public desirous of 
 using such railways and canals as a continuous line of communica- 
 tion, and so that all reasonable accommodation may, by means of 
 the railways and canals of the several companies, be at all times 
 afforded to the public. It has been held, however, that the above 
 section applies only to the "receiving," "forwarding," and 
 " delivering " of traffic, and not to facilities for storing goods after 
 they have been delivered to the consignees. Where, therefore, a 
 railway company let the surplus land adjoining their station to one 
 coal merchant to the exclusion of others, it was held that another 
 coal merchant had no ground of complaint, although the first named 
 merchant did not require or use the whole of the sui-plus land for 
 the purpose of storing his coals (a). 
 
 If railways are blocked up and impeded by snow, the company 
 is bound to use all reasonable exertions to forward the passengers, 
 though extra expense must be incurred by the company in so doing, 
 which they have no means of recovering from their passengers ; 
 but the owners of goods and cattle have no right to complain that 
 extraordinary efforts which are made to forward passengers are not 
 used to forward cattle and goods. " If a snow-storm occurs which 
 makes it impossible to forward cattle except by extraordinary 
 means, involving additional expense, the company are not bound to 
 use such means and to incur such expense " (6). So if there be 
 delay in delivering goods by reason of. an accident occurring on 
 the defendants' Hne, such accident being caused wholly by the 
 neo-Kgence of another railway company, which had running powers 
 
 fe) Sutton V. Gt. West. Sail Oo., 35 Law 5 C. P. 622, per Montague Smith 
 
 J., Exch. 18 ; L. E., 4 Eng. & Ir. App. and Brett, JJ., diss. Bovill, C.J., and 
 
 226 ; 38 Law J., Exch. 177. See post, Keating, J. 
 
 p 492 (J) Briddon v. Gt. North. Sail. Co., 28 
 
 ' (a) West T. X. «fc JUr.-W. Swi/., L. R. Law J., Exch. 51. 
 
■470 NEGLIGENCE OF COMMON CABEIEKS. [CHAP. X. 
 
 over the defendants' line, the defendants, in the absence of a special 
 contract to deliver within a certain time, are not responsible (c). 
 
 Whenever there has been an apparent preference in respect of 
 the conveyance of goods conceded by a railway company to certain, 
 persons to the prejudice of a complainant, there is sufficient ground 
 to call upon the company for an explanation and justification of 
 their conduct in the matter (c^). 
 
 Loss of goods ly common carriers. — " The law," observes Holt, 
 C.J., charges every person exercising the public employment of a 
 common carrier, common hoyman, master of a ship intrusted to 
 carry goods, against all events but acts of God and enemies of the 
 king. For thou^ the force be never so great, as if an irresistible 
 multitude of people should rob him, nevertheless he is chargeable. 
 And this is a politic establishment contrived by the policy of the 
 law for the safety of all persons, the necessity of whose affairs 
 obliges them to trust these sort of persons, that they may be safe in 
 their dealings. For else these carriers might have an opportunity 
 of undoing all persons that had any dealings with them by com- 
 bining with thieves, &c. ; and yet doing it in such a clandestine 
 manner as would not be possible to be discovered. And this is 
 the reason the law is founded upon in that point " (e). 
 
 By the term " act of God " is meant something in opposition to 
 the act of man, such as storms, lightning, tempests, and inevitable 
 accidents not resulting from human agency. If the danger or the 
 accident, though unavoidable, has been occasioned by the act of 
 man, the carrier cannot avail himself of it as an excuse for the non- 
 delivery of the goods (/). Thus, where an action was brought 
 againgt a common carrier for not safely carrying and delivering a 
 quantity of hops, and it appeared that a fire broke out in a buildiag 
 adjoining a booth under which the carrier had placed the hops, and 
 burnt with inextinguishable violence, and extended itself to the 
 hops, and consumed them, without any neglect or default on the 
 part of the carrier himself, it was held that, inasmuch as the fire 
 had not been occasioned by lightning, but by the act of man, the 
 occurrence of the disaster constituted no answer to the action {g). 
 If the goods have been destroyed or swept away by rains and floods, 
 the circumstances attendant upon the loss must be regarded, in 
 order to deteimine whether it has been occasioned by the act of 
 God or the act of man. If the common carrier has neglected to 
 provide proper coverings for the goods ; if he has gone out of his 
 
 (c) Tayhr v. Gt. North. Rail. Co., L. E., (e) Coggs t, Bernard, 2 Ld. Kaym. 909 ; 
 1 C. P. 385. 1 Smith's L. Ca., 6th ed. 177, 
 
 (d) Oa/rton v. Brwtol and Exeter Mail. (/) OaJcley v. Ports. &c., Steam, Packet 
 Qo., 28 Law J., C. P. 306. BaxendaXe v. Co., 11 Exoh. 622; 25 Law J., Exch. 99. 
 Ot. West. Bail. Co., ib. 81. As to injunc- {g) Forward t. PUtwrd, 1 T. E. 33. 
 tion, see post, e. 3. Hyde t. Trent Nmi. Co., 5 T. R. 399. 
 
SECT. 1.] LOSS BY FIRE, STOEMS, ETC. 471 
 
 way to meet the danger ; if lie has travelled by unusual roads, or 
 crossed a plain subject to inundations when he might have kept 
 the high ground and been safe, the loss occasioned thereby is a loss 
 from the act or negligence of man, and the common carrier is 
 consequently responsible therefor (A). 
 
 If a barge-owner who carries goods for hire on a canal accepts 
 certain goods to be carried for hire, and rats gnaw a hole in the 
 barge, and cause a leak, and the goods are injured, the barge-owner 
 is responsible for the damage (i). He is not, of course, responsible 
 for any deterioration in the value of the goods resulting from the 
 negligence or want of care of the owner or the consignor, such as 
 defective packiag, nor for losses occasioned by an inherent defect 
 in the article causing its destruction. If, however, the defective 
 packing of goods is patent and visible, and easily remedied, and he 
 accepts the goods for conveyance, he is bound to take all reasonable 
 means to provide against the defect, and secure their safety. Where 
 a dog, with a string about Ms neck, was delivered to a common carrier 
 to be carried, and was tied by the string in a watch-box, and shortly 
 afterwards the dog slipped his head through the noose, and escaped, 
 and was never seen afterwards, and an action was brought to 
 recover the value of the dog, and it was contended that the owner 
 ought to have taken care that the cord was properly secured round 
 the dog's neck, it was held that as the common carrier had the means 
 of seeing that the dog was insufficiently secured, he ought to have 
 locked him up or taken other proper means to secure him, and that 
 he was responsible for the loss (/ ). Where, however, a greyhound, 
 secured in the way ordinarily adopted and obviously intended by 
 the owner to be used, viz., by a collar and strap, was delivered to 
 a railway company to be carried, and the greyhound during the 
 journey slipped his head through the collar and was lost, it was 
 held that the company was not responsible (k). 
 
 If a cargo or load of goods weighing a certain weight be 
 delivered to a common carrier to be carried for hire, and the cargo 
 on its arrival at its destination is deficient in weight, there is a^ 
 primd facie presumption of negligence on the part of the carrier, 
 which the latter must rebut by showing that the deficiency of 
 weight arose from causes over which he had no control (I). 
 
 If the accident or casualty causing the loss of the goods is 
 occasioned by the misconduct of a third person, and not by any 
 fault or neglect on the part of the common carrier himself, the 
 latter is, nevertheless, responsible to the owner for the loss, as he 
 
 (h) Doct. & Stud. Dial. 2, oh. 88; (h) Richardson v. North East. Mwy., 
 
 Noy,cli.43. L. K, 7 0. P. 75. 
 
 (») Dale V. Hall, 1 Wils. 281. (I) Eawhes v. Smith, Car. & M. 72. 
 (j) Simart v. Crcwiley, 2 Stark. 324. 
 
472 LOSS OF GOODS BY COMMON CAERIEES. [ClUr. X. 
 
 has himself a remedy over against the offending party. Thus, 
 where the ship of a common carrier by water drove on an anchor 
 in the river Humber, and was sunk, and the goods on board were 
 injured, and the accident was occasioned by the neglect of a third 
 person in not having his buoy out to mark the place where his 
 anchor lay, it was held that the common carrier was nevertheless 
 bound to make good the loss (m). But if the misconduct of the 
 third person is caused by the orders of the owner of the goods, the 
 carrier of course will not be responsible (n). 
 
 If a man professes to be a common carrier of passengers merely; 
 and only receives occasionally, and at his own option, some trifling 
 articles of luggage with such passengers, to be carried gratuitously 
 for the accommodation of the latter, he cannot be charged as a 
 common carrier of goods for the loss of them. He is, in such a 
 case, a gratuitous bailee of the goods, and chargeable only with 
 the liabilities and responsibilities of a person who gratuitously 
 undertakes to carry goods for another. Such is an omnibus 
 proprietor, who professes only to carry passengers and receives his 
 hire solely therefor, but occasionally receives and carries gratuitously 
 small bundles and parcels for the accommodation of his passengers. 
 As he does not profess to carry goods for hire, he cannot be com- 
 pelled to receive them as a common carrier of goods, neither can 
 he be charged except as a gratuitous bailee for the loss of them. 
 And if luggage is carried free, upon the express terms that the 
 passenger shall himself take charge of it, -and that it shall be 
 taken at his risk, he cannot make the carrier responsible for the 
 loss of it (o). If, however, the carrier or coach-proprietor professes 
 to carry both passengers and luggage, he is clothed, as regards the 
 conveyance of the luggage, with the obligations and responsibilities 
 - of a common carrier of goods for hire (p), whether the hire is paid 
 by the passenger or by some other person on his behalf or for his 
 benefit (q). 
 
 Concealment of risk hy consignors. — A person who gives a carrier 
 goods of a dangerous character to carry, and which require more 
 caution in their carriage than ordinary merchandise, and which, 
 withoiit such caution, would be likely to injure the carrier and his 
 servants, is bound in law to give notice of the dangerous character 
 of such goods to the carrier, and if he fails so to do he is responsible 
 to the carrier, or to his servants, for the injurious consequences of 
 his neglect (r). See ante, p. 466. 
 
 (m) Trent Nav. Co. v. Ward, 3 Esp. (p) Brooke v. Pkhciek, 4 Bing. 218. 
 
 13^. (q) MarsMll v. York, and Newcastle 
 
 (») Mutterworthr.Brownlowj3iLa.-vr 3 ., Sail. Co.,11 C.B.655; 21 taw J., C. P. 24. 
 
 C- P- 267. : (r) Farrant v. Barnes, 11 C. B., N. S. 
 
 (o) SUwwrt V. Land, and North-West. 553 • 31 Law J., C. P. 139 ; post, ch. 17, 
 
 Raxl. Co., 33 Law J., Exch. 1S9. e. 1, Fkadddient Concealment. 
 
SECT. 1.] CONTRIBUTORY NEGLIGENCE BY CONSIGNOR,, , 473 
 
 Contributory negligence. — If goods delivered to be carried are 
 lost or stolen by the way, and the conduct of the bailor or consignor 
 himself has in any way conduced to the loss, he has no ground at 
 common law for seeking compensation at the hands of the common 
 carrier (s). If a man, for example, sends bank-notes, sovereigns, or 
 valuables, to a common carrier to be carried disguised as merchandise, 
 or as a parcel of ordinary value, requiring no more than ordinary 
 care, and the valuables are stolen, the common carrier is not 
 responsible at common law for the loss, inasmuch as the neglect of 
 the consignor in not apprising him of the extraordinary value of 
 the parcel, in order that extraordinary care might have been taken 
 of it, may have been the occasion of that loss {ante,'^. 19) ; and 
 " the holding out by the consignor as an ordinary lisk what is in 
 reality an extraordinary risk is a legal fraud — dolus malus, — and 
 ex dole malo non oritur actio " (t). 
 
 Inability of the common carrier to rid himself of the public 
 duties imposed upon him. — It has been held that a person who 
 undertakes the public employment of a common carrier of 
 merchandise, or of passengers and luggage, has no more right to 
 engraft upon his employment the terms that " all merchandise is 
 carried at the risk of the owners," or that " all luggage is carried 
 at the risk of the passengers," and that " he wiU not be responsible 
 if it is lost or damaged by the way," than a common innkeeper has 
 to refuse to receive guests except on the terms that he shall not be 
 responsible for the safe-keeping of their goods and luggage deposited 
 in his inn (post, s. 2). The consignor of merchandise or the passenger 
 has a right to reject these terms, and to insist on the merchandise, 
 or the customary allowance of luggage for a passenger, being taken 
 at the common carrier's risk, provided he makes the declaration of 
 value, and is ready to pay the premium of insurance in those cases 
 where the declaration and payment are required by law (post, p. 476). 
 " The traveller," justly observes an American judge, " is under a 
 sort of moral duress, a necessity of employing the common carrier, 
 and the latter shall not be allowed to throw off his legal liability. 
 He shall not be privileged to make himself a common carrier for 
 his own benefit and a mandatory or less to his employer. He is a 
 public servant, with certain duties defined by law, and as Ashurst, 
 J., said of the duties of innkeepers, they are indelible " {u). 
 
 Statutory protection of common carriers in respect of the carriage 
 of gold and silver, title-deeds, valuables, &c. — By the 11 Geo. 4 and 
 
 (s) Sutterworth t. Brownhw, supra. Angell on Carriers, App. xriii. xsiii. 
 
 U) Bayley, J., Batson v. Donovan, 4 B. See Doct. & Stud. Dial.',2, ch. 39 ; Noy's 
 
 & Aid. 37. Maxims, ch. 43, 92. Stewart v. L. Sf N. 
 
 {u) Cowen, J., Cole r. Goodioin, 19 West Rivy., ante, p. 472. 
 Wend. 281. HoUkter v. Nowlen, ib. 234. 
 
474 LOSS OF GOODS BY COMMON CAERIEES. [CHAP. X. 
 
 1 Wm. A, c. 68, commonly called the Caxriers' Act, reciting that by 
 reason of the frequent practice of bankers and others of sending 
 by the public mails, stage-coaches, and public conveyances by 
 land, for hire, parcels and packages containing money, bills, notes, 
 jewellery, and other articles of great value in small compass, much 
 valuable property is rendered liable to depredation, and the respon- 
 sibility of common carriers for hire is greatly increased ; and that 
 through the frequent omission by persons sending such parcels to 
 notify the value and nature of the contents thereof, so as to enable 
 such common carriers, by due diligence, to protect themselves 
 against losses arising from their legal responsibility, and the diffi- 
 culty of fixing parties with knowledge of notices published by 
 such common carriers, with the intent to limit such responsibility, 
 they have become exposed to great and unavoidable risks, and 
 have thereby sustained heavy losses ; it is enacted, that no common 
 carrier by land for hire shall be liable for the loss of, or injury to, 
 any gold or silver coin, or any gold or silver in a manufactured 
 state, or any precious stones, jewellery, watches, clocks, or time^ 
 pieces, trinkets, bills, orders, notes, or securities for payment of 
 money, stamps, maps, writings, title-deeds, paintings, engravings, 
 pictures, gold or silver plate, or plated articles, glass (z), china, 
 silks in a manufactured or unmanufactured state, and whether 
 wrought up or not wrought up with other materials (a), furs, or 
 lace {i.e., lace made by hand (6) ), contained in any parcel or 
 package which shall have been delivered either to be carried for 
 hire or to. accompany the person of any passenger in any public 
 conveyance, when the value of such articles or property contained 
 in such parcel or package ' shall exceed the sum of ten pounds, 
 unless at the time of the delivery thereof at the ofiice, warehouse, 
 or receiving-house of such common carrier, or to his book-keeper, 
 coachman, or other servant, for the purpose of being carried, or of 
 accompanying the person of any passenger, the value 'and nature 
 of such articles or property shall have been declared by the person 
 sending or delivering the same ; and the increased charge therein- 
 after mentioned, or an engagement to pay the same, accepted by 
 the person receiving such parcel or package. 
 
 Of the fixing wp of notices required hy the statute.-r-AiaA (s. 2) 
 that when any parcel or package containing any of the specified 
 articles shall be delivered, and its value and contents declared, and 
 such value shall exceed ten pounds, it shall be lawful for such 
 common carriers to demand and receive an increased rate of charge, 
 to be notified by some notice affixed in legible characters in some 
 
 (z) As to a glass frame, see Treadwin (o) See Brum v. Mid. Ratt. Co., post, 
 V. 6t. East. Mail. Co., L. E., 3 C. P. p. 478. 
 308- (6) 28 & 29 Vict. c. 94. 
 
SECT. 1.] COMMON CABEIERS ACT. 475 
 
 public and conspicuous part of the office, warehouse, or receiving- 
 house where such parcels are received by them for the purpose of 
 conveyance, stating the increased rates of charge required to be 
 paid over and above the ordinary rate of carriage as a compensa- 
 tion for the greater risk and care to be talcen for the safe con- 
 veyance of such valuable articles, and all persons sending or 
 delivering parcels containing such valuable articles at such office 
 shall be bound by such notice, without further proof of the same 
 having come to their knowledge. And (s. 3) that when the value 
 shall have been so declared, and the increased rate of charge paid, 
 or an engagement to pay the same shall have been accepted, the 
 person receiving such increased rate of charge, or accepting such 
 engagement, shall, if required, sign a receipt for the parcel, acknow- 
 ledging the same to have been insured, which receipt shall not be 
 liable to any stamp duty ; and if such receipt shall not be given 
 when required, or such notice shall not have been affixed, the 
 common carrier shall not be entitled to any benefit or advantage ^ 
 under the Act, but shall be responsible as at common law, and be 
 liable to refund the increased rate of charge. No public notice or 
 declaration is (s. 4) to limit, or ifi anywise affect the liability at 
 common law of any such common carriers. 
 
 Every office, warehouse, or receiving-house, which shall be used 
 or appointed by any common carrier, for the receiving of parcels to 
 be conveyed, is (s. 5) to be deemed and taken to be the receiving- 
 house, warehouse, or, office of such common carrier. And where 
 any parcel shall have been delivered at any such office, and the 
 value and contents declared, and the increased rate of charge paid, 
 and such parcel shall have been lost or damaged, the party entitled 
 to recover damages in respect of such loss or damage shall also be 
 entitled (s. 7) to recover back such increased charges, in addition 
 to the vdlue of such parcel. 
 
 Nothing in the Act is (s. 6) to annul or affect any special con- 
 tract between such common carriers and any other parties for the 
 conveyance of goods and merchandise; — ^but this section only 
 applies to contracts, the provisions of which are inconsistent with 
 the exemption claimed by the carrier under the first section (c) ; — 
 nor (s. 8) to protect any common carrier for hire from liability to 
 answer for loss or injury to any goods or articles arising from the 
 felonious acts of any coachman, guard, book-keeper, porter, or other 
 servant in his employ, nor to protect any such coachman, &c., from ■ 
 liability for any loss or injury occasioned by his own personal 
 neglect or misconduct. 
 
 When a declaration of value is a condition precedent to any 
 ' liability on the part of the common carrier. — The Act, it will be 
 
 (c) Baxendale r. Gt. Eastern Sail. Co., L. B., 4 Q. B. 244. 
 
476 LOSS OF GOODS BY COMMON CAERIERS. [CHAP. X. 
 
 observed, applies solely to common carriers ly land. Where, 
 however, the contract for carriage is divisible, and applies to 
 carriage partly by water and partly by land, and the loss occurs 
 during the carriage by land, the carrier is entitled to the benefit of 
 the statute {c[) ; and where the contract is to carry by land and 
 sea also, it is divisible, so as to afford a defence to the carrier if the 
 loss in fact occurs during the carriage by land (e). The effect of 
 the Act is to prevent the owner or consignor from recovering from 
 the common carrier the value of any of the enumerated articles 
 when the value of the contents of the parcel or package in which 
 they are inclosed exceeds IQl., and the value has not been declared, 
 and the increased rate of charge paid by the consignor pursuant to 
 the statute. The declaration of value must be made by the co;i- 
 signor, whether the common carrier has or has not a notice or tariff 
 of charges for the increased risk of conveyance of such articles 
 stuck up in his ofi&ce, and whether the articles are delivered at the 
 office of the common carrier, at the sender's house, on the road, or 
 anywhere else. The Act requires the person who sends the goods 
 to take the first step, by giving that information which he alone 
 can give, and if he does not take that first step, then he cannot 
 maintain an action for the value of the lost article by reason of the 
 first section of the statute, which expressly says that the common 
 carrier shall not be liable unless the declaration is made (/). As 
 soon, however, as this has been done, the common carrier is entitled 
 to demand and to have an increased rate of remuneration, which is 
 in the nature of a premium for insurance, provided he has a tariff 
 or notice stuck up in his office of the sums he charges above the 
 usual rate of charge for the carriage of the articles. If there is no 
 tariff, he has then no right to charge the increased rate, and he loses 
 (provided the declaration of value has been duly made by the 
 consignor) the protection of the Act {g). The declaration of value 
 having been made, the common carrier has no right to know the 
 exact nature of the contents of the parcel, unless he has reasonable 
 grounds for believing that it contains articles of a dangerous 
 character Qi). And if, after the declaration has been made, he 
 receives the goods without demanding an increased rate of charge, 
 he is not protected by the statute {i). However, the mention 
 of the value incidentally is no declaration of value within the 
 statute Qc). 
 
 (d) Baaxmdale t. Ot. Eastern Rail. Co., {k) Crouch v. Lmtd. wnd North- West. 
 
 Sail. Co., 14 C. B. 295 ; 23 Law J., C. P. 
 
 (c) Le Contewr v. Lond. and South- 73. See ante, p. 466. 
 
 West. Sail. Co., L. K., 1 Q. B. 54. (i) Behrens v. Ot. North. SaU. Co., 31 
 
 (f) Piancicmi v. Lond. and South- Law J., Exch. 299 ; 30 i6. 153. 
 
 West. Sail: Co., 18 C. B. 226. (h) Sobinson v. South- West. Sail. Co., 
 
 (g) Saxendale v. Hart, 21 Law J., Exeh. 34 Law J., C. P. 234. 
 123 ; 6 Exch. 789. 
 
SECT. 1.] COMMON CARRIEKS ACT. 477 
 
 By whom the declaration of value is to he made and the increased 
 rate of carriage paid. — In a case before Lord EUenborougli, before 
 the passing of the Common Carriers Act, it was held that where 
 a tradesman at Gosport received an order in writing for goods to 
 be forwarded to Plymouth, he had an implied authority to do all 
 that was necessary to be done to insure them a safe conveyance ; 
 and, therefore, that when it was necessary to declare their value, 
 and pay an increased charge for insurance, it was his duty to make 
 the declaration and the payment, so as to enable the consignee, in 
 case of loss, to secure his indemnity from the common carrier (Z) ; 
 but the limitation of the liability of common carriers in respect of 
 the carriage of glass, china, and the articles mentioned in the 
 Carriers Act, being now established by Act of Parliament, must bo 
 taken to be known to consignees and consignors alike throughout 
 the kingdom ; and it is not the practice, nor, it is apprehended, is 
 it in general the duty, of the consignor, to pay the carriage and 
 insure articles directed to be forwarded by his customers, unless he 
 receives express directions so to do (m). If, indeed, the articles 
 are of an extremely fragile character, and likely to be damaged 
 without great care, or if they are of unusual value, it would be the 
 duty of the consignor to declare their nature and value to the 
 common carrier, that proper care might be taken of them {ante, 
 p. 472) ; and it would be prudent for the consignor, before for- 
 warding goods of this description, to require instructions from the 
 consignee as to the insurance of them. 
 
 Articles to which the statute extends. — The statute extends to all 
 the articles enumerated in the first section, although not within 
 the words of the preamble, " an article of great value in a small 
 compass." It is not sufficient for the owner to describe in writing 
 on the outside of a parcel or box the nature of the contents. The 
 carrier must have distinct information thereof, and an opportunity 
 of demanding the increased rate of carriage {%). Hat bodies made 
 of felt, which is a substance composed partly of the soft fur or 
 down of the rabbit detached from the skin, and partly of the wool 
 of sheep, have been held not to be "furs" within the Common 
 Carriers Act (o), but dresses of silk made up for use are silks 
 within the operation of the Act {p); and "silk web," which is 
 composed one third of silk and two thirds of cotton and india- 
 rubber, as being " wrought up with other materials," is also within 
 it {q). By the term " writings " is meant writings of value, and 
 
 (I) Clarice v. Eutchins, 14 Bast, 476. (p) Bernstein v. Baamdale, 6 C. B., 
 
 (m) Coshay v. Tute, 3 Campb. 129. N. S. 259; 28 Law J., C. P. 265, over- 
 
 BaOey v. Sweeting, 9 C. B., N. S. 857. ruling Dwiiey v. Mason, Car. & M. 50. 
 
 (n) Owen v. Burnett, 2 C. & M. 353 ; (?) Brunt v. Mid. Rail. Co., 33 Laiv J., 
 
 4 Tyr. 133. Boys Y.Pink, 8 0. & P. 361. Exch. 187 ; 2 H. & C. 889. 
 
 (o) Mayhem Y. Nelson, 6 C. & P. 58. 
 
478 LOSS OF GOODS BY COMMON CAEEIEES. [CHAP. X. 
 
 therefore an instrument in writing in an imperfect state, intended 
 to secure a large sum of money, but not being a valid and complete 
 security at the time of the loss, is not within the statute (r). If 
 the contents of a parcel or package exceeding 101. in value are of a 
 miscellaneous character, consisting partly of enumerated articles 
 and partly of things not mentioned or comprised in the Act, the 
 common carrier is released from all liability in respect of the 
 former, but, as regards the latter, his common-law liability remains 
 the same as before the passing of the statute. Thus, if a trunk 
 containing Hnen and wearing apparel, jewellery, and trinkets, 
 exceeding 101. in value, be delivered to a carrier to be carried for 
 the ordinary hire, or to accompany the person of a passenger, and 
 such trunk is lost by the way, the carrier is not liable for the value 
 of the jewellery and trinkets (s), but he remains responsible for the 
 value of the trunk and linen and wearing apparel, as at common 
 law before the passing of the Act. If, however^ the contents of the 
 parcel or package consist entirely of the enumerated articles, the 
 common carrier is by the express terms of the Act freed from all 
 responsibility and liability in respect of the loss thereof, if the 
 consignee has not declared the nature and value of the article, and 
 paid, or agreed to pay, the increased charge specified in the notice, 
 although the loss may have been occasioned by the grossest 
 negligence (t). If an uninsured parcel or package consists entirely 
 of enumerated articles, the plaintiff would not be entitled to recover 
 even the value of the box or case in which they are contained (u), 
 but if there are articles in it to which the statute does not apply, 
 he would (x). 
 
 If the consignor, after he has made the declaration of value, 
 objects to pay the ad valorem rate of carriage or premium of 
 insurance, and wishes to have the parcel carried as a parcel of 
 ordinary value, at the ordinary rate of carriage for parcels of 
 similar bulk and weight, the carrier may, if he pleases, waive his 
 right to the increased remuneration or premium of insurance, and 
 agree to carry for a smaller sum, upon the terms that he is not 
 then to be responsible upon the customary liability of a common 
 carrier, as an insurer against robbery and the dangers and accidents 
 of the road. " This limitation," observes Parke, B., it is compe- 
 tent for a common carrier to make, because, being entitled by 
 common law to insist on the full price of carriage being paid before- 
 
 (r) Stoessiger v. South-East. Rail. Co., {x) Treackoin v. Ot. East. Rail. Co., L. 
 
 23 Law J., Q. B. 293. As to pleading E., 3 0. P. 308. A framed picture is one 
 
 the Act, see Smith t. Land, and Brighton entire thing, and cannot be divided so as 
 
 Rail. Co., 7 0. B. 789. to charge the carrier for the loss of the 
 
 («) Remstein t. Raxendale, supra. frame, Henderson v. L, <t- N.- W. Rxvy., L. 
 
 {t) Hmton V. DiUm, 2 Q. B. 646. E., 5 Eich. 90. 
 
 (•«) Wyld V. Pichford, 8 M. & W. 462. ' 
 
SECT. 1.] THEFT BY OAEEIERS' SEEVANTS. 479 
 
 hand, he may, if such price be not paid, refuse to carry upon the 
 terms imposed by the common law, and insist upon his own 
 terms " (y). And if, after the declaration has been made, the 
 carrier receives the parcel without demanding the increased rate or 
 charge, he receives it as an insurer of its safe conveyance"; and the 
 same result follows if he has failed to notify his increased rate of 
 charge in accordance with the terms of the statute (z). 
 
 Losses covered ly the statute. — The term " loss " in the statute 
 means loss of things by the carrier, or his servants, in the course 
 of the carriage of them, either by losing them from their vehicles, 
 or mislaying them, so that it was not known where to find them 
 when they ought to have been delivered ; and not the loss that 
 may be sustataed by an owner or consignee by reason of the non- 
 delivery of th^ chattel in due time, or by reason of great delay in 
 its delivery, whereby the use of the chattel, or the means of turning 
 it to advantage, were lost (a). 
 
 Loss of goods from theft hy tJie common carrier's servants. — 
 Nothing contained in the Carriers* Act is, as we have seen (s. 8), to 
 protect any common carrier for hire from liability to answer for loss 
 of, or injury to, any goods or articles arising from the felonious act 
 of any servant id. the carrier's employ. If, therefore, the common 
 carrier relies upon the statute as a defence, contending that there 
 ought to have been, and that there was not, any declaratiopi of 
 value on the part of the consignor, of the article alleged to have 
 been lost, the defence is rebutted, and the case taken out of the 
 operation of the statute, by showing that the loss arose from the 
 felonious act of the carrier's servant (6). 
 
 When the goods have been accepted by a carrier under a special 
 contract for the carriage of them, the statute does not apply. 
 Where, therefore, a common carrier has given express notice to the 
 consignor that he wiU not be responsible for parcels or packages 
 above . the value of lOZ., unless the value is declared, and an 
 increased rate of remuneration paid according to a printed tariff or 
 scale of charge, and the common carrier afterwards accepts a parcel 
 to be carried, knowing it to be worth more than lOL, without 
 demanding or receiving the premium for insurance, and the parcel 
 is purloined by his own servant, he is not necessarily responsible 
 for the theft (c). Having received the goods under a special con- 
 tract, and not upon his customary liability as an insurer of safe 
 conveyance, he is chargeable only for negligence and nvant of 
 
 (y) Wyld T. Pichford, swpra. (V) Metcalfe v. London and Brighton 
 
 (s) Behrens v. Gt. North. Rail. Co., 6 H. BaU. Co., 4 C. B., N. S. 307 ; 27 Law J., 
 
 & N. 366 ; 30 Law J., Exch. 153. C. P. 205. 
 
 (a) Heam, v. Bond, and South-West. (c) ButtY.Gt. West. Bail., Co.,11 C.B. 
 
 iJoA Co., 10 Exch. 801; 24 Law J., Exch. 140. Ot. West. BaiZ. Co. v. Bimell, 27 
 
 180. Law J., 0. P. 204. 
 
480 LOSS OF GOODS BY COMMON CAEEIEES. [CHAP. X. 
 
 ordinaiy care. The loss by theft indeed is primd facie proof of 
 negligent keeping, but it is not absolutely conclusive, and the 
 carrier may "exonerate himself from liability for the theft by 
 proving his own care and watchfulness, and showing that there was 
 no want of any proper precaution on his part to guard against theft 
 by his servants. "If the consignor," observes Lord Tenterden, 
 "has concealed the value of the parcel from the carrier, and 
 has adopted a disguise for it likely to prevent the carrier from 
 taking any particular care of the parcel, and yet not so completely 
 concealing its nature as to prevent it from being selected for 
 depredation by a dishonest servant, and the loss is the consequence 
 of the me^ns he has adopted, then he cannot maintain an action in 
 respect of the loss " (d). 
 
 All persons who are actually, though casually and incidentally, 
 employed by the common carrier in doing the work of carrying, are 
 the servants of the latter, although they may be the regular servants 
 of some other persons, receiving wages from them and not from the 
 carrier («). 
 
 Inability of railway, canal, and steamboat companies to 
 exonerate themselves from liability for their own neglect, default, 
 or breach of duty by notice, condition, or declaration. — By s. 7 (/) 
 of the Eailway and Canal Traffic Act, 17 & 18 Vict. c. 31,— 
 which by 31 & 32 Vict. c. 119, s. 16, extends, so far as its 
 provisions are applicable, "to steam vessels and to the traffic 
 carried on thereby," — every railway company and canal company 
 is made liable for the loss of, or for any injury done to, any 
 horses, cattle, or other animals, or to any articles, goods, or 
 things, in the receiving, forwarding, and' delivering thereof," 
 occasioned by the neglect or default of such company, or its 
 servants, notwithstanding any notice, condition, or declaration 
 made and given by such company contrary thereto, or in anywise 
 limiting such liability ; every such notice, condition, or declaration, 
 being thereby declared to be null and void. But it is provided 
 that nothing therein contained shall be construed to prevent the 
 said companies from making such conditions with respect to the 
 receiving, forwarding, and delivering of any of the said animals, 
 articles, goods, or things, as shall be adjudged by the court or judge 
 before whom any question relating thereto shall be tried to be just 
 and reasonable {g), and that they shall not be liable to a greater 
 extent than certain sums named in the section for injuries to horses, 
 cattle, &c., unless the sender has declared them to be of greater 
 
 (d) BradUy v. Waterlwuse, M. & M. (/) See SaaendaU v. Gt. Eastern Sail. 
 154. Co., h. K., 4 Q. B. 254. 
 
 (e) Machu v. Land, and SouA- Weet. (g) As to the construction of this see- 
 Rail Co., 2 Exoh. 426. tion, see Peek v. NoHh Staff. Sail. Co., 
 
 post, p. 482. 
 
SECT. l.J EAIL-WAY, CANAL, AND STEAM-BOAT COMPANIES. 481 
 
 value at the time of delivery and paid an increased charge 
 accordingly. Under this provision no greater sum than 50Z. 
 can be recovered in respect of a horse which is injured by the 
 negligence of the company, while being led by the owner's 
 servant through their yard for the purpose of being conveyed by 
 their railway, unless his value has been declared previously to the 
 injury (h). 
 
 This statute does not enable railway companies to frame such 
 regxilations and make such conditions with respect to the receiving 
 and forwarding goods and chattel's as will enable them substantially 
 to escape from their common law or statutory liability to carry 
 passengers' luggage, and such things as they ordinarily profess to 
 carry ; but they may attach reasonable conditions to the receiving, 
 forwarding, and delivering them; and then, if those reasonable 
 conditions are not assented to and signed, they may refuse to 
 carry (i). 
 
 Where an Act of Parliament authorized a railway company to 
 make regulations respecting passengers' luggage, and the company, 
 by their regulations, required the passengers to see their luggage 
 marked with the company's labels, and stated that the company 
 would not be responsible for the loss or detention of any article of 
 luggage not so marked and properly addressed, and the plaintiff, 
 who was a passenger, required the company's porter to label and 
 take into the luggage-van some wearing apparel wrapped in a shawl 
 and properly addressed, and the porter refused, as the company had 
 made it a rule not to label shawls, it was held that the company 
 was responsible for the porter's refusal to receive the shawl ; and 
 that the company could not make regulations having the effect of 
 divesting them of their common-law liability to receive and carry 
 the article as luggage (k). But in the case of excursion trains 
 started for the carriage of passengers only, where the railway 
 company does not receive luggage for conveyance, but allows the 
 passenger to carry a small quantity under his own care and at 
 his own risk, the railway company is not responsible for the loss 
 of it (l). 
 
 In cases where railway companies under the Carriers Act, or 
 the Eailway Traffic Act, are entitled to demand an increased rate 
 of charge for insuring the safe conveyance of particular articles, 
 and the consignor objects to the increased rate of charge, and it is 
 
 (A) Hodgman T. West Midland Mail. NoHh-Eastern Bail. Co., L. R., 2 Exch. 
 
 Co., 33 Law J., Q. B. 233 ; 35 Ibid. 85. 173, and post, p. 483. 
 
 (i) As to what is a reasonable condi- (k) Munster t. South-Bastem Sail. Co., 
 
 tion, see Aldndge t. Gt. Western Mail. 4 C. B., N. S. 676 ; 27 Law J., C. P. 312. 
 
 Co., 33 Law J., C. P. 161 ; post, p. 486, (J) Stewart v. Lond. and North- West, 
 
 what an unreasonable one; Eooth'y. Bail, Co,, ante, -p. i72. 
 
 I I 
 
482 NEGLIGENCE OF COMMON CAEEIEES. [OHAP. X. 
 
 agreed that the company shall receive and forward certain articles 
 uninsured, this may be taken as doing away with their common- 
 law liability as insurers of the safe conveyance of the articles, but 
 does not exempt them from responsibility for losses by negligence 
 through- their own default (m), e.g., for delay in not forwarding the 
 articles (n). 
 
 If goods are accepted for conveyance under a special contract, 
 whereby the carrier exempts himself froni liability for loss or 
 damage of a particular character, such as leatage or breakage, 
 this will not pxempt him from responsibility if the leakage or 
 breakage has been caused by his own negligence, or the negligence 
 of his servants in storing the goods (o). And the rule is the same, 
 where the suit is brought in the Court of Admiralty against the 
 vessel (_p)- It makes no difference that the contract was made 
 with another person, if the plaintiff's goods were lawfully in the 
 possession of the defendants, and were lost or injured through their 
 negligence (^). Where the plaintiff's goods on board ship were 
 injured by oil during the voyage, and it was shown that there was 
 no oil amongst the cargo, but that there were two donkey engines 
 on board in which oil was used, and which were near the plaintiff's 
 goods, it was held that this raised a presumption of negligence 
 against the owners of the vessel (r). 
 
 Signature of notices, conditions, declarations, and special contracts. 
 — By s. 7 of the Eailway and Canal Traffic Act it is further enacted, 
 that no special contract between a railway and canal company and 
 any other parties, respecting the receiving, forwarding, or delivering 
 of any animals, articles,- goods or things, as aforesaid, shall be 
 binding upon or affect any such party, unless the same be signed by 
 him or by the person delivering such animals, articles, goods or 
 things respectively, for carriage. 
 
 Before the statute, every case in which a- specia;! limited liability 
 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, and the statute is to be 
 construed with reference to that state of the law ; so that every 
 notice, condition and declaration, under the statute, however reason- 
 able, must be made in writing, and be signed in the mode provided 
 by the statute, in order to be binding in law upon the person sought, 
 to be affected by it (s). If a man has an opportunity of reading the 
 
 (m) Peek v. NoHh Staff. Bail. Co., 10 (p) Ohrloff r. BHscaU, L. R., 1 P. C. 
 
 H. L. C. 473 ; 32 Law J., Q. B. 241. Ca. 231. 
 
 (n) BMnson t. Qt. Western Eml. Co., (g) Mafrtiim, v. Ot. Indian Penimsvlar 
 
 36 L. J., C. P. 123. BoA. Co., L. E., 3 Exch. 9. 
 
 (o) PhUUps V. CZfflj-i, 26 Law J., C. P. M Czech t. Oen. Steam Nav. Co., L. R., 
 
 168 ; 2 C. B., N. S. 163. M'Manus v. 3 C, P. 14. 
 
 Laaic. and Yorlcshwe Bail. Co., infra. (s) M'Manus t. Lame, omd York Bail. 
 
SECT. 1.] REASOITABLE OR UNREASONABLE CONDITIONS. 483 
 
 conditionSj and chooses to sign them without reading them, he is 
 nevertheless bound by them, if they are reasonable (t). But the Act 
 does not apply to traffic beyond the company's own lines or canals, 
 so that a condition printed on a passenger's through ticket from 
 London to Paris, that the company would not be responsible for 
 loss, &c., except on the company's own lines, is valid, although not 
 signed by the passenger (u). 
 
 What are just and, reasonable conditions respecting the receiving, 
 forwarding and delivering goods. — The reasonableness or unreason- 
 ableness of the condition made by the company with respect to the 
 receiving, forwarding, and delivering of goods and chattels, will 
 materially depend upon the nature of the articles to be conveyed, 
 the degree of risk attendant upon their conveyance, the rate of 
 charge made, and whether the railway company was bound by the 
 common law, or by statute, to carry the articles on being paid the 
 customary hire, or whether it was in its power to reject them 
 altogether and refuse to carry them upon any terms {x). 
 
 Every stipulation or condition professing to exempt a railway 
 company or canal company from liability for its own negligence or 
 misconduct, or that of its servants and agents, is unjust and un- 
 reasonable. " It is impossible," justly observes Lord EUenborough, 
 " without outraging common sense, to allow carriers to say, ' We 
 wUl receive your goods, but we will not be bound to take any care 
 of them, and will not be answerable at all for any loss occasioned 
 by our own misconduct, be it ever so gross and injurious ' " (y). 
 
 "Where horses were delivered to be forwarded by a cattle-truck 
 from Liverpool to York for reward, and the owner was required to 
 sign a ticket containing a memorandum to the effect that the ticket 
 was issued subject to the owner's undertaking aU risk of conveyance, 
 loading and unloading, as the company would not be responsible 
 for any injury or damage, however caused, occurring to live stock 
 traveUing upon the railway, or in their vehicles, and the defendant's 
 servants provided a truck which, in external appearance, and so 
 far as the defendant's servants knew, was sound, and sufEicient for 
 the conveyance of the horses, but it was in fact unsound, and of 
 insufficient strength for the purpose, and a hole was made in the 
 bottom of the truck during the journey, and one of the horses got 
 
 Co.,post,-gAU. PeehY.North Staff. Rail. and_ Ex. Rail. Co., El. B. & El. 112; 30 
 
 Co., ut sup. Simcms v. Gt. West. Rail. Co., Law J., Q. B. 273. Ante, p. 481, in notis. 
 
 18 C. B. 826 ; 26 Law J., C. P. 25. Beal\. As to what is a reasonable per-oentage 
 
 South Denj. Rail. Co., 5 H. & N. 886. charge on declared value, see Hanison v. 
 
 (t) Lewis V. Ot. West. Rail. Co., 5 H. & Land., Brighton, and S.- C. Rail. Co., 31 
 
 N. 874 ; 29 Law J., Exch. 425. Law J., Q. B. 113. 
 
 (w) Zwnz T. South-East. Rwy., L. E., 4 {y) I/yon v. Metts, 5 East, 438. Ld. 
 
 Q. B. 539. Wensleydale, in Peek y. North Staff. Rail. 
 
 (a;) Pa/rdington v. South Wales Rail. Co., Co., 32 Law J., Q. B. 274. Allday v. 
 
 1 H. & N. 396. Simons- v. Gt. West. Gt. West. Rail. Co., 5 B. & S. 903; 34 
 
 Rail. Co., 18 0. B. 805. Garton t. Srist. L. J., Q. B. 5 ; and see ante, pp. 473, 480. 
 
 I I 2 
 
484 NEGLIGENCE OF COMMON CAKEIEKS. [CEAP. X. 
 
 his leg through the hole and was injured, it was held that the 
 railway company was responsible for the damage done to the horse, 
 notwithstanding the terms of the special contract signed by the 
 owner of the horse. "We are of opinion," observes the court, "that 
 the condition or special contract in this case is not just and reason- 
 able. In order to bring the defendants within its protection, 
 it is necessary to construe it as excluding responsibility for loss 
 occasioned, not only by aU risks of whatever kind directly incidental 
 to the transit, 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 insufficiency of 
 the vehicles by which the companies are to carry is a matter, 
 generally speaking, which they, and they alone, have the means of 
 fully ascertaining ; and it would be unreasonable and mischievous 
 af they were to be allowed to absolve themselves from the conse- 
 quence 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 for the consequences 
 of their own negligence, however gross, or misconduct, however 
 flagrant ; and that is what the condition under consideration pro- 
 fesses to do. That condition is therefore void, and the case stands 
 simply upon the ground that the plaintiff has employed the de- 
 fendants to carry his horses safely, and that they have used an 
 insufficient and improper vehicle for that purpose, whereby the 
 horses have been injured " («). 
 
 The court is bound to look at the particular matter in each case 
 to see whether the condition is reasonable or not ; and it has been 
 held that a condition which seeks to relieve a railway company 
 from the consequences of the loss or non-delivery of goods, by reason 
 of insufficient or improper package, is not reasonable (a); and if the 
 condition is framed without limitation or exception, so as to exempt 
 the company from all responsibility for injury, however caused, it 
 will be void, as being neither just nor reasonable (&). But a, con- 
 dition qualifying their liability only, for instance, one annexed to 
 the carriage of meat, that the company will not be responsible for 
 the loss of a market, is a reasonable one (c). 
 
 Commencement and duration of the liability — Damage or loss of 
 goods in warehouses. — When the common carrier of goods carries on 
 the business both of a warehouseman and a common carrier, the 
 
 , (z) M'Manus v. Lane, and Yorh/Mre Weasleyda\e,Peel:y.N'orthStaff'.BaU. Co., 
 
 EaU. Co., 4 H. & N. 327 ; 28 Law J., mte, p. 482. 
 
 Exoh. 353. M'Cance t. Land, amd (6) Peeh v. Nor^ Staff. Sail. Co., 
 
 North-West. Rail. Co., 7 H. & N. 477 ; 31 ante, p. 482. Gregory t. West. Mid. Sail. 
 
 Law J., Exoh. 65. Co., 33 Law J., Exoh. 155. 
 
 (a) Simuyns v. Gt. West. Rail. Co., 18 (c) Lord v. Midland Rail. Co., L. E., 2 
 
 C. B, 830 ; 26 Law J., C. P. 25. Ld. C. P. 339. 
 
SECT. 1.] DELIVERY AT PLACE OF DESTINATION. 485 
 
 nature and extent of liis liability will depend npon the character 
 in which he holds the goods at the time of the loss. If they are 
 received into his warehouse to await the future orders of the owner 
 or consignor as to their destination, he is clothed only with the 
 ordinary duties and responsibilities of a warehouseman or bailee for 
 hire (d). Goods received at the cloak-room of a railway company, 
 therefore, are not received by the company in their capacity of 
 common carriers, but simply as bailees for hire (e). But if the 
 destination is marked out, and he has nothing to do but to forward 
 the goods on the earliest opportunity to the place indicated, he is re- 
 sponsible as a common carrier for any loss or damage that may occur 
 to the goods in the warehouse, as they are then in transitu in con- 
 templation of law (/). Whenever the common carrier receives goods 
 to be Icept until called for, or until he has orders from the consignee 
 to forward them, he holds them as a bailee for hire and not as a 
 gratuitous bailee, although he does not charge warehouse rent (g). 
 
 Delivery of goods at the place of destination. — The common carrier 
 of goods is bound, in common with all carriers for hire, to carry the 
 goods intrusted to him for conveyance to their place of destination 
 with reasonable expedition {h), and deliver them into the hands of 
 the consignee, or of some person expressly or impliedly authorized 
 by him to receive them ; and he must, of course, in all cases, take 
 especial care that they are delivered into the hands of the right 
 person {^)■ If, however, they are imposed upon by a fictitious order, 
 they will not be responsible, if they act according to the usual 
 custom of business, and in accordance with their instructions (k). 
 When the carriage is by land, the goods must be sent to the 
 residence of the consignee, for the common carrier is not released 
 from responsibility by leaving them at the coach- office, or at an inn 
 by the road-side at which the coach usually stops, unless he has 
 received directions from the consignee so to do (I). If he tenders 
 them at the residence of the consignee, and is ready to deliver them 
 on receiving payment of his hire, he has fulfilled his contract as a 
 carrier ; and if the hire is not paid he is not bound, as we have 
 already seen, to part with the possession of the goods : but he may 
 lawfully take them back to his own warehouse, or place of business; 
 
 (d) Oairns v. Robins, 8 M. & W. 263. endale, 1 Bxch. 410; 17 Law J., Bx^h. 
 Garside v. Trent Navigation Co., i T. K, 50. 
 
 582. (i) Oolden v. Manning, 3 Wils. 433 ; 2 
 
 (e) Van ToU y. South-East. HaU. Co., W. Bl. 916. Birket v. Willan, 2 B. & 
 31 Law J., C. P. 241. Aid. 356. Duff v. Budd, 6 Moore, 469. 
 
 (/) Forward y. Pitta/rd, 1 T. E. 27 ; . Stephenson v. Hart, 1 M. & P. 357 ; 4 
 
 Buller, J., in Hyde v. Trent and Mersey Bing. 476. 
 
 Nav. Co., 5 T. E. 398. As to accidental (h) If they are imposed upon by a fic- 
 
 flres in warehouses, see anU, p. 249, titious order, see McKean v. Mclvor, L. 
 
 et seq. E-. 6 Exch. 36. 
 
 (o) White T. Humphery, 11 Q. B. 43. (I) Land, and North- West. Rail. Co. y. 
 
 (h) Raphael v. Pichford, 6 Sc. N. R. BarOa, 7 H. & N. 400; 31 Law J., Exch. 
 
 478 ; 2 Dowl. N.S. 916. Black v. Base- 92. 
 
486 ' NEGLIGENCE OF COMMON CAEKIEES. [CHAP. X. 
 
 and he holds them thenceforward not as a common carrier, but as a 
 bailee for hire, or (if he is not entitled to charge, or does not charge, 
 warehouse rent) as a gratuitous bailee (m), and is only liable, 
 therefore, to act with reasonable care and caution with respect to 
 the goods (n). And if the consignee; having no warehouse of his 
 own, asks him to keep the goods till he can conveniently send for 
 them, the common carrier thenceforth holds the goods only as a 
 warehouseman for hire, or a gratuitous bailee, according as he may 
 or may not be paid for his care and custody of them (o). "When 
 the carriage is by water, the delivery at a wharf is not a delivery 
 to the consignee, unless it is made so hy the usage and practice of 
 the port where the delivery takes place ; but the master is bound 
 to give the consignee notice of the arrival of the gpods, and is not 
 released from his responsibility for their safety until a reasonable 
 time has elapsed after the giving of the notice for the consignee to 
 come and fetch them. He cannot escape from his liability as a 
 common carrier by immediately landing the goods at a public 
 wharf, without giving notice to the consignee, and giving him an 
 opportunity of receiving them from the ship's side ; and if he does 
 so land them, and they are destroyed upon the wharf by an acci- 
 dental fire before the consignee has Jiad an opportunity of taking 
 them away, the shipowners- will be responsible for the loss (p). 
 
 Delivery of luggage at railway stations. — In the case of the 
 carriage of passengers with luggage by railway, if it is the usual 
 course for the, luggage to be taken from the train by the company's 
 servants and delivered to the passengers on the platform, the com- 
 pany is bound to deliver it there. And if the company choose to 
 provide a more convenient mode of delivering luggage to passengers 
 by employing porters to carry it across the platform to the vehicles 
 by which it is to be taken away, their liability as common carriers 
 continues until the porters have discharged their duty {q). 
 
 Acceptance of goods and passengm-s'to he carried beyond the limits 
 of the ordinary destination. — When a common carrier takes into 
 his care a parcel directed to a particular place, and does not by 
 positive agreement limit his responsibility to a part only of . the 
 distance (r), that is primd facie evidence of an undertaking on his 
 part to carry the parcel to the place to which it is directed, although 
 the place may be beyond the limits within which he ordinarily 
 
 (m) Storr v. Orowlei/, M'Clel. & Y. 4 T. R. 260. WardeU T.MomiUyam, 2 
 
 136. Esp. 693. 
 
 (») ffeugh V. Land, and North-West. (g) Richards -7. Land, amd Brigliton, ikc., 
 
 Rwy., Xi. ■&., 5 Exoh. 61. Rail. Co., 7 C. B. 839 ; 18 Law J., C. P, 
 
 (o) In re Webb, 8 Taunt. 449 ; 6 Moore, 251. Butcher v. Land, and South- Western 
 
 500. 'See ShepJierd v. Bristol and Exeter Rail. Co., 16 C. B. 13. 
 
 Rail. Co., L. K., 3 Exch. 189. (r) That such a limitation Ib a reason- 
 
 (p) Bourne r. GatUffe, 3 So. N. E. 1 ; able one, see AlMdge v. Gt. Western Rail. 
 
 8i6. 604;7M.&Gr. 850. SyedsT.Hay, C7o., 33 Law J., C. P. 161. 
 
SECT, l.j THROUGH CAEBIAGE OK BOOKING. 487 
 
 professes to carry on his trade of a carrier. His responsibility, 
 therefore, continues to the door of the address to which the goods 
 are destined, and he cannot release himself from such responsibility 
 by transferring the goods to another carrier, or sending them by 
 another conveyance (s). If a railway company, for example, 
 accepts goods for conveyance to a particular destination, beyond 
 the limits of its own line of railroad, and the goods are lost whilst 
 in the hands of another railway company, to whom they have been 
 delivered to be forwarded on their journey, the first railway com- 
 pany is the party to be sued by the owner of the goods for the loss 
 of them (f), unless the company has by express contract limited its 
 liability to loss and damage occurring on its own line of railway (u). 
 
 In the absence of special circumstances, the responsibility of a 
 railway company in and about the conveyance of goods accepted 
 by them for delivery at a particular destination is the same, 
 whether their own line extends the whole distance or stops at an 
 intermediate point, and the railway companies carrying the goods 
 beyond the limits of the first liae of railway are, in respect of the 
 conveyance and delivery of such goods, to be regarded as the 
 agents of the railway company which originally received the 
 goods (x). The same principle applies to the conveyance of 
 passengers (y), who are injured during the journey, although the 
 negligence be that of the company over whose line the defendant 
 company have running powers, and not of the defendants them- 
 selves (z). And it applies to the commencement of the journey 
 as well as its termination. Where, therefore, the contract was 
 to carry the plaintiff from the shore to a hulk, and there wait till a 
 vessel came to carry him to his destination, and he was injured 
 while on board the hulk, it was held that the defendants were 
 responsible, though the hulk did not belong to them, and they had 
 only acquired by agreement the right to use it for the purpose of 
 embarking passengers on board their vessels (a). 
 
 By the 31 & 32 Vict. c. 119, it is provided (s. 14), that where a 
 railway or canal company, or the lessees, owners, or managers of 
 such company, by through booking, contract to carry any animals, 
 
 (s) GwrnettTT. WiOan, 5 B. & Aid. 53. (m) PowUs v. Gt. Western Sail. Co., 7 
 It) Mmchamp v. Lane, and Preston Exch. 699 ; 22 Law J., Bxch. 76. Aid- 
 Bail. Co., 8 M. & W. 421. WaUon v. ridge v. Gt. Western Rod. Oo., supra. See 
 Amliergate Rail. Co., 15 Jur. 448. CoUins Zum v. Sovth-Mast. Rwy., ante, p. 483. 
 T. Bristol and Exeter Rail. Co., 11 Exch. (x) Crouch r. Gt. Western Rail. Co., 28 
 790 ; 25 Law J., Exoh. 185. Brist. and Law J., Exch. 345. Scothom v. South 
 Exeter RaU. Co. v. CoUins, 7 H. L. 0. Staff. Rail. Co., 8 fix. 345. 
 234. Wilby v. West. Corn. Rail. Co., 2 (y) Slahe v. Gt. Western Rail. Co., 7 
 
 H. AN. 709. Mytton v. Midland Rail. H. & N. 987; 31 Law J., Exch. 346. 
 
 Co., 4' H. & N. 615. Coxen v. Gt. Western Buxton v. North-Eastern Rail. Co., h. K., 
 
 RcM. Co., 5 H. & N. 274; 29 Law J., 3 Q. B. 549. 
 
 Exch. 165. Hayes T. South- Western Rail. ' (z) Thomas v. Ehyrmey Rwy. Co., L. E., 
 
 Co., 9 It. 0. L. K. 474. Weller v. Gt. 5 Q. B. 226 ; 6 lUd. 266. 
 
 Western RaU. Co., 34 Law J., Exch. 170. (cs) John v. Bacon, L. K., 5 C. P. 437 
 
488 NEGLIGENCE OF COMMON CAEEIEKS. [OHAP. X. 
 
 luggage, or goods partly by railway and partly by sea or canal, a 
 condition exempting the company from liability for any loss or 
 damage arising during the ca^rriage by sea from the act of God, the 
 king's enemies, fire, accidents from machinery, boilers, or steam, 
 and all other accidents of seas, rivers, and navigation of whatever 
 kind, shall, if piiblished in a conspicuous manner in the office 
 where the through booking is effected, and 'legibly printed on the 
 receipt or freight note, be valid as part of the contract between the 
 consignor and the company. 
 
 By the 34 & 35 Vict. c. 78, it is provided (s. 12), 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 belong- 
 ing to the railway company, the railway company shall be answer- 
 able in damages, in respect of loss of life, or personal injury, or in 
 respect of loss of or damage to animals or goods, in like manner 
 and to the same amoiint as the railway company would be answer- 
 able 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 lie upon the railway company. 
 
 Loss of passenger^ luggage ly railway companies. — Most of the 
 Eailway Acts provide that, without extra charge, it shall be lawful 
 for every passenger by railway to take with him ordinary luggage 
 or articles of clothing of a certain weight and dimensions, and 
 that the company shall not be responsible for the safe carriage or 
 custody of, or for any loss of or injury to, articles carried upon the 
 railway with, or accompanying the person of, or belonging to, any 
 passenger, or delivered for the purpose of being carried, other than 
 such passenger's articles of clothing. But these enactments do not 
 prevent railway companies from running excursion trains for pas- 
 sengers only, without luggage (h), or from making a special contract 
 that luggage, if carried by such a train, shall be at the passenger's 
 own risk (c). Articles of clothing or ordinary luggage, in an Act 
 of Parliament mean such things as a man generally requires and 
 takes with him, and are ordinarily used by travellers, and may 
 extend to a dressing-case, but not to title-deeds, law papers, and 
 bank notes {d). A railway company has no power to make a by- 
 law abridging the rights of passengers in respect of their luggage ; 
 and, therefore, where the Great Western Eailway Company made a 
 by-law to the effect that they would " not be responsible for the 
 
 (6) Rumsey v. North-Ecustern Rail. Go., {d) Plidpt t. Land, and JVorth-Western 
 
 14 C. B.,N.S. 461; 32LawJ.,C.P. 24i. Rail. Co., 34 Law J., C. P. 259. See 
 
 (c) Stewart y. Land, and Nmih-West. ante, p. 467. 
 Rail. Co., 33 Law J., Exoh. 199. 
 
SECT. 1.] passengers' LUGGAGE. 489 
 
 care of luggage unless booked and paid for," it was held that the 
 by-law was null and void (e). 
 
 Eailway companies are responsible for the acts and omissions 
 of their porters in the management and delivery of passengers' 
 luggage, and are responsible for its safe delivery into the hands of 
 the passenger, or into those of his appointed agent or servant, on 
 the termination of the journey. If it is the usual course to deliver 
 the luggage of passengers at a particular part of the platform, the 
 company is bound to deliver it there. If a railway porter, at the 
 req[uest of a passenger, calls a cab, and places the passenger's 
 luggage on a cab, and there leaves it, and comes away without 
 having the means of identifying the vehicle, and the cab-driver 
 goes off with the luggage before the passenger has taken his seat 
 iu the vehicle, the railway company will be responsible for the 
 loss (/). If the luggage of a passenger is, with the knowledge of 
 the servants of the company and with their assent, placed in the 
 carriage in which the passenger sits, the luggage is, in point of law, 
 in the custody of the company, so as to render them responsible for 
 its loss, unless the loss appears to have been occasioned by some 
 misconduct or carelessness of the passenger himself in dealing 
 with such luggage (g). 
 
 Loss of mercJiandise carried as luggage. — If a person packs mer- 
 chandise in carpet-bags and portmanteaus, and passes it off upon a 
 raLlw9,y company as personal luggage which he is entitled to have 
 carried gratis, he commits a fraud npon the company, and cannot 
 recover for the loss of it ; but if the company have express notice 
 that what the passenger takes with him is merchandise, and the 
 company think fit to carry it without demanding any extra remu- 
 neration, they wiLL be responsible for the loss of it (h). 
 
 Limitation of the liability of shipowners. — The Merchant Ship- 
 ping Acts limit the liability of shipowners in respect of loss of or 
 damage to goods by fire, and in respect of the loss of gold, silver, 
 watches, or jewels, by robbery or embezzlement, unless their value 
 has been declared (i). 
 
 Befusal of the consignee to receive the goods — Liability of the 
 
 (c) WUUams v. 6t. Western Sail. Co., ment incorporating railway companies 
 
 10 Exch. 15. Gt. Western Sail. Co. v. appear to contain the unreasonable pro- 
 
 Cfoodman, 12 C. B. 313; 21 Law J., C. P. vision, that every passenger travelling on 
 
 197. Munster v. South-EasUm Sail. Co., the railway shall take his luggage at his 
 
 4 C. B.,Hr. S. 698 ; 27 Law J., 0. P. 312. own risk. Mytton y. Midland Sail. Co,, 
 
 (/) Bvctcher v. Land, amd South- West. 4 H. & N. 621. 
 
 SaU. Co., 16 C. B. IS; 24 Law J., C. P. (h) Gt. NoHhem Sail. Co. v. Slwpherd, 
 
 137. Sidmrds v. Land., Brighton, and ut sup. CahiU v. Land, and North- West. 
 
 South Coast SaU. Co., 7 C. B. 839. Sail. Co., 13 C. B., N. S. 818; 31 Law J., 
 
 (ff) Gt. Northern SaU. Co. v. Shepherd, 0. P. 271 ; 30 ih. 289. Belfast and 
 
 8 Kxch. 30 ; 21 Law X, Bich. 114. Ballymena Sail. Co. v. Keys, 9 H. L. Ca. 
 
 SoUnson v. Dunmore, 2 B. & P. 416. 556. See ante, p. 467. 
 
 Talley v. Gt. Western Swy., L. K., 6 C. P. (i) See ante, p. 437 ; see also ante, 
 
 44. Some of the special Acts of Parlia- pp. 391, 395. 
 
490 NEGLIGENCE OF COMMON CAERIERS. [CHAP. X. 
 
 carrier as iailee. — If the consignee refuses to receive the goods, or 
 cannot be found, the carrier is not thereby exonerated from the 
 duty of taking reasonable care of them, and doing what is reason- 
 able in the matter for the benefit of the consignor, or the owner of 
 them. If the person to whom; they are addressed is not ready to 
 receive them at the place of delivery, the carrier must keep them 
 a reasonable time, if he has a convenient place of deposit there, 
 and if he has no place of .deposit he must deal with them as any 
 reasonably prudent person might be expected to deal with his own 
 -property. If the consignor or owner of the goods is known to him, 
 it would be reasonable to expect that he would give him notice of 
 the refusal of the consignee to receive them, and seek instructions 
 for the disposal of the property. If the consignor or owner is 
 unknown to him, no such notice can, of course, be given, or be 
 reasonably expected (/) ; but he should deposit the goods in some 
 place of safety, and ought not at once to send back the goods to 
 the place from whence they came (/«). 
 
 Landing of goods ly shipowners where the consignee fails to take 
 tlum away, is provided for by the Merchant Shipping Act, in 
 cases where the goods are imported from foreign parts (T). 
 
 Lien of common carriers. — The common law accords to com- 
 mon carriers, who are bound, as we have seen, to receive and carry 
 the goods of persons who tender them for conveyance, and are 
 ready and willing to pay the customary hire, a right to retain the 
 goods and chattels of such persons until they have received the 
 customary remuneration for the services they have been compelled 
 to render them, whether the goods are the property of the persons 
 who have tendered them for conveyance, or the property of third 
 parties from whom they have been fraudulently taken or stolen. 
 Thus, where goods were stolen and delivered 40 a carrier to be 
 carried to Exeter, and the owner finding them in the possession of 
 the carrier demanded them of him, and the .carrier refused to 
 deliver them without being paid the price of their carriage, it was 
 held that he was justified in so doing, "for when the robber brought 
 them to hiih he was obliged to receive them and carry them, and 
 therefore, since the law compelled him to carry them, it will give 
 him remedy by retainer for the price of the carriage " (m). 
 
 But the carrier has no right of lien by the common law for 
 anything beyond the price of the carriage of the goods conveyed. 
 He cannot detain them until he has received payment of a general 
 balance due to him from the owners of such goods. Common 
 
 (j) Hudson V. Bamndale, 27 Law J., t. L. & N. W. JRwy., L. B., 5 Exch. 51. 
 Eich. 93. (0 25 & 26 Vict. c. 63, s. 67. 
 
 {h) Ot. Western Hail. Co. v. Crouch, 3 H. (m) Emter Comers' case, cited 2 Ld. 
 
 & N. 169 ; 27 Law J., Exch. 345. Heugh Raym. 867. 
 
SECT. 1.] LIEN FOE CARRIAGE. 491 
 
 carriers liave oftentimes attempted to obtain a lien of this descrip- 
 tion, and to secure tlie payment of debts due to them for the 
 previous conveyance of goods, by giving notices to the effect that 
 all goods delivered to them for conveyance wiU be held as a security 
 for the payment of such debts, as well as for the payment of the 
 price of their own carriage (n). But the common carrier has no 
 right to make any such bargain or stipulation. He is bound, as we 
 have already seen, so long as he has room in his cart or carriage, to 
 convey the goods of all persons on being tendered his hire for the 
 carriage of the particular goods sought to be conveyed ; and if he 
 does obtain a promise from the consignor to the effect that he shall, 
 if he carries the goods, have a right to retain them in his hands as 
 a security for the payment of an antecedent debt, such promise is 
 a mere nudum pactum, of no force or effect in the eye of the law (o). 
 Where an Order in Council under an Act of Paliament (p) directed, 
 that every cattle-truck should be disinfected once in every twenty- 
 four hours during its use, it was held that the railway company 
 had no lien for the expense of such cleansing upon the person 
 sending cattle by the truck, as it was not a service done for such 
 person individually as distinguished from the rest of the public (^). 
 
 The 97th section of the 8 Vict. c. 20, gives no lien upon goods 
 for tolls or charges due to a railway company for other goods 
 previously conveyed by them as carriers, but only for toUs previously 
 due for the use of the line by persons conveying goods in their own 
 carriages (r). 
 
 If a person goes to a coach-office and orders a place to be booked 
 for him by a particular coach, and that be done, and he then leaves 
 his portmanteau at the coach-office, the , coach-proprietor will, it 
 seems, have a lien upon the portmanteau for his reasonable and 
 customary remuneration and charge for booking ; but if the person 
 merely leaves his portmanteau, and no place is booked, the coach- 
 proprietcT has no lien upon the portmanteau at aU (s). When 
 goods delivered to be carried are received from the waggon of the 
 common carrier by the consignee, and are merely carried into the 
 warehouse to be weighed, the carrier has no right to charge for 
 warehouse-room ; and if the goods are taken up on the road, and 
 have never been booked, he has no right to charge for the booking 
 
 (n) Wright v. SneU, g B. & Aid. 353. (g) Cox v. Gt. Eastern Sail. (7o.,,L. E., 
 
 (o) Butkr V. Woolcott, 2 B. & P. N. K. 4 C. P. 181. 
 
 64. , Oppmheim v. Miissell, 8 B. & P. 47. (r) Wallis v. 1. & S.-W. Ewy., L. E., 
 
 Rmhfmh V. HadjUld, 6 East, 527 ; lib. 5 Exch. 62. - 
 
 227. See 32 & 33 Vict. c. 70, s. 64, ante, (s) Biggins t. Bretherton, 5 C. & P. 2. 
 
 p. 467. Whether, if the place be booked, the 
 
 ip) 11 & 12 Vict. c. 107. This Act is coach proprietor would also have a lien 
 
 repealed by the 32 & 33 Vict. o. 70, by for the fall amount of the fare, gucwe, 
 
 which however, ss. 62 and 63, similar S. C. 
 provisions are made. 
 
492 EXTORTION OF COMMON CAERIEES. ' [CHAP. X. 
 
 of theln ; 'and if, after tender of the price of the carriage, he 
 detains them for these small charges, the detention is unlawful, and 
 an action may be brought Against him in respect thereof (t). A 
 common carrier of passengers and luggage has a right of lien upon 
 the luggage for the payment of the fare of the passenger as well as 
 for the carriage of his effects, but he has of course no right to 
 detain the person of the passenger or the clothes he is actually 
 wearing (u). And if the carrier once parts with the possession of 
 the goods he loses his lien, as in other cases. But if he loses the 
 possession by fraud, the lien revives if possession is recovered (x). 
 
 Railway charges must be equal and reasonable, and no undue 
 preference given to one person or class of persons over another (?/). 
 If overcharges are made they may be recovered back (2). Therefore, 
 where a railway company charged a certain rate upon the aggregate 
 weight of several packages, if addressed to the same consignee at 
 the same place, it' was held that they could not charge a common 
 carrier se^parately upon the weight of the packages consigned to him, 
 although, in addition to the carrier's address on the packages, there 
 was also labelled the address of the person to whom the carrier 
 (through his agent) intended to deliver them {a). However, this 
 will not prevent a railway company from charging through rates to 
 places beyond their termini, at a rate lower in proportion than that 
 charged for part of the distance, although such part is the whole 
 of their line, and a common carrier is not, therefore, entitled to 
 have his packages carried over the line for such lower rate (6). 
 
 The 31 & 32 Vict. c. 119, provides (s. 16) for equal charges to 
 passengers, where a railway company is authorized to maintain and 
 work steam vessels in communication with their railway, and 
 prohibits any reduction or advance in the fare in consequence of 
 the persons using the steamboat having travelled, or being about to 
 travel, by the railway or not. Where an aggregate sum for the fare 
 by boat and rail is charged, the ticket must distinguish the amount 
 charged for each (JUd.). Where two railways are worked by one - 
 company the calculation of charges by distance must be reckoned 
 as if it was one railway (s. 18). 
 
 Charges for packed' parcels. — It is unreasonable to make different 
 rates of charge to different persons for parcels, whether they be 
 packed parcels or not (c). In some cases deciding that an extra 
 
 («) Lambert v. SoUnson, 1 Esp. 119. Ewy. Co., L. R. 6 0. P. 194. 
 
 (m) Wolf v. Summers, 2 Campb. 631. (2) Pegler v. Monmouth, ibc., Sail. 
 
 (x) WaUacex. Woodgate,'Rj. &M. 194. Co., 6 H. & N. 644. Garton v. Bristol 
 
 (y) See Bansome T. East. Co. Rail. Co., and Exeter Sail. Co., 30 Law J., Q. B. 
 
 26 Law J., C. P. 91. See post, p. 513, et 273. Mte, p. 470. 
 
 sej. It seems thai the convenience of the (o) Baxendalev.Lond.andSouth.-'West. 
 
 public is an element in the consideration Sail. Co., L. K., 1 Exch. 137. 
 
 of what may constitute an " undue " pre- (6) S. C. 
 
 faience. See Palmer t. Lond. S Brighton (c) Garton t. Bristol amd Exeter Sail. 
 
SECT. l.J UNDUE PKEFEKENCE — PACKED PARCELS, ETC. 493 
 
 charge may be made 'for packed parcels, the company claimed to 
 charge extra to carriers for packed parcels, and not to charge extra 
 to customers who were not carriers, for what they called inclosures, 
 which were in reality packed parcels, and the courts have held that 
 an extra charge for a packed parcel to a carrier was against the 
 statutes, imposing upon railway companies the duty of charging 
 equally to all persons in respect of all goods of a like description (d) ; 
 but the company has a right to divide goods into classes by descrip- 
 tions appropriate to the different classes it chooses to make, and to 
 make different charges for the different classes (e). By 31 & 32 
 Vict. c. 119, s. 17, it is provided that, on application by writing to 
 the secretary of the company, by any person who has paid for the 
 conveyance of goods, the company shall render an account to the 
 applicant distinguishing how much of the charge is for conveyance 
 — including tolls for the use of the railway, the use of carriages, 
 and for locomotive power, — and how much for loading and unload- 
 ing, covering collection, delivery, and other expenses, but without 
 particularising the items of such last-mentioned charge. 
 
 Passenger fares — Right of a passenger to alight at intermediate 
 stations.^ — ^Where a railway company, under the influence of com- 
 petition, charged a low rate of fare to a distant locality, and sought 
 to prevent passengers from getting down at intermediate stations, 
 to which a higher fare was charged, on the ground that they had 
 not paid the fare to such intermediate station, and were ansv/erable 
 to a by-law, subjecting to a penalty any person who should enter 
 a carriage without having previously paid his fare, it was held that 
 the by-law was wholly inapplicable ; that the passenger had paid 
 his fare ; and that the company had no right to prevent him from 
 getting d6wn at any intermediate station (/). 
 
 Duties and responsibilities of common ferrymen. — A common 
 ferryman is a common carrier, and is bound to provide safe and 
 secure ferry-boats, and safe slips and landing-stages, and all proper 
 means and appliances for the safe transit of persons who may have 
 occasion to use the ferry for themselves, or for the transit of their 
 horses and carriages, luggage and merchandise. Where, therefore, 
 the defendants, as ferrymen, used steam-boats for transit across the 
 river Mersey, from -which passengers and animals could not safely 
 land without landing-stages and slips, and they provided an insecure 
 
 Co: 4 H. & N. 49 ; 28 Law J., Exeh. 169 (e) Erie, J., Branly v. South-Eastern 
 
 Baxendak v. Gt. Western Bail. Co., 14 BaU. Co., 12 C. B., N. S. 63 ; 31 Law J., 
 
 C.B., N SI. C. P. 290. 
 
 {d) PwrherY. Gt. WesUm Bail. Co., 11 (/) Beg. v. Frere, 4 Ell. & Bl. 598. 
 
 C. B. 545. Crouch v. Gt. Northern BaU. Al to the construction of this by-law, see 
 
 Co.,11 Exch. 742 ; 25 Law J., Exch. 137. Jennings v. Gt. Northen-n BaU. Co., L. E., 
 
 Gt. West. B.wy. y. Sutton, L. R. 4 Eng. & 1 Q. B. 7. Dearden t. Tnwnsend, ibid., 
 
 Ir. App. 226. And see Addison on Con- 10. 
 tracts, 6th ed. p. 487. 
 
494 DUTIES OF INNKEEPERS. [CHAP. X. 
 
 hand-rail to A landing-stage, which broke and caused the death of 
 the plaintiff's mare, it was held that they were bound to make good 
 the loss (g.) 
 
 Loss of goods hy common ferrymen and common hoymen. — Com- 
 mon ferrymen and common hoymen, being common carriers, are 
 responsible for the safe delivery of goods intrusted to them for 
 conveyance, unless they have been prevented by storm, lightnmg, 
 tempest, or inevitable accident (A). In Mouse's case it was resolved, 
 " that if the ferryman surcharge the barge, it is lawful for any of 
 the passengers in time of accident and necessity to cast the things 
 out of the barge for safety of the lives of the passengers ; and 
 the owners shall have their remedy upon the surcharge against 
 the ferryman, for the fault was in him upon the surcharge ; but if 
 no surcharge was, but the danger accrued only by the act of God, 
 as by tempest, no default being in the ferryman, every one ought 
 to bear his loss for the safeguard and life of a man, for 'interest 
 republicse quod homines conserventur'" {i). 
 
 SECTION II. 
 
 NEGLIGENCE OF COMMON INNKEEPBES AND LODGING-HOUSE. KEEPERS. 
 
 Of the, duty of common innkeepers to provide food and shelter for 
 travellers and wayfarers. — Every man who opens an inn by the 
 wayside, and professes to exercise the business and employment of 
 a common innkeeper, is, by the custom of the realm, bound to 
 afford such shelter and accommodation as he possesses to all 
 travellers (A) who apply for it and tender, or are able and ready to 
 pay, the customary hire, and are not drunk or disorderly, or labour- 
 ing under contagious or infectious diseases ; and if he neglects or 
 refuses so to do, he is liable to an action for the recovery of any 
 damages that may have been sustained by reason of such refusal ; 
 and also to an indictment at common law (V). The innkeeper is 
 bound, moreover, to receive and provide for the horses pf aU 
 travellers who alight at his inn, if he has room in his stables ; even, 
 it is said, of those who choose only to put up their horses, resorting 
 elsewhere for lodging and entertainment. But he is not bound- to 
 
 {g) WiUoughhy v. Horndge, 12 C. B. Qe) Taylor v. Humphreys, 30 Law J., 
 
 751 ; 22 Law J., 0. P. 90. M. 0. 242. See Copley v. Burton, L. E., 
 
 (A) Am/les v. Stevens, 1 Str. 128 ; Bac. 5 C. P. 
 
 Abr. Cakkiebs, B. Oakley v. Portsmouth, Q) Bcmthom t. Hammond, 1 C. & K. 
 
 Jcc, Steam Packet Co., ante, p. 470. 404. HoweU v. Jackson, 6 0, & P. 725. 
 
 (») Mouse's case, 12 Co. 63. Bex v. Ivens, 7 0. & P. 219. 
 
SECT. 2.] WHO IS A COMMON INNKEEPER. 495 
 
 receive the goods of a person who professes merely to make use of 
 the inn as a place of deposit, and not to lodge there as a gnest (m). 
 Neither is he bound to provide for his guest the precise room that 
 the latter may choose to select, nor to provide him with a bedroom, 
 if he declares it to be his intention to sit up all night. AU that he 
 is required to do is to find reasonable and proper accommodation 
 for his guests; and if he tenders such accommodation, and the 
 guest refuses it, he may compel the latter to quit the inn, and seek 
 for accommodation and lodging elsewhere (n). 
 
 The extent of the public duty and obligation of the innkeeper 
 depends mainly upon the nature of his public profession. If he 
 has only a stable for a horse he is not bound to receive a carriage. 
 If he professes only to receive ordinary luggage accompanying the 
 person of a traveller, he is not bound to take in articles of unusual, 
 extraordinary, and inconvenient bulk, nor goods which do not 
 accompany the person of the guest (o). 
 
 The innkeeper cannot discharge himself of the duty and burthen 
 imposed upon him by the common law by express notice to his 
 guests (p), or under pretence of sickness, want of understanding, 
 or absence from home (q) ; but if an infant keeps a common inn, 
 an action upon the custom of inns will not lie against him, for his 
 privilege of infancy shaU be preferred, and take place of the 
 custom (r). 
 
 Who may he said to ie a eomTnon innkeeper. — " Every person who 
 makes it his business to entertain travellers and passengers, and 
 provide lodging and necessaries for them. and their horses, and 
 attendants, is a common innkeeper ; and it is in no way material 
 whether he have any sign before his door or not " (s). A London 
 " coffee-house," where beds and provisions are furnished by the 
 day or for the night, or for a longer period, to persons in certain 
 stations of Hfe, who may think fit to apply for them, is a common 
 inn (t). But if a man merely opens a house for the sale of provisions 
 and refreshments, and does not profess to furnish beds and lodging 
 for the night, he is not a common innkeeper (u). And if he 
 professes to let only private lodgings, and does not offer his house 
 to the public as a place of reception, and entertainment, and 
 lodging, for all comers who are able and willing to pay for the 
 accommodation offered, he cannot be said to keep a common inn. 
 
 (m) Smnders v. Phimmer, Orl. Bridg. (»•) Cross v. 4nd«-oes, KoU. Abr. 2 ; 
 
 227. Garth. 161, 
 
 (n) Fell V. KnigU, 8 M. & W. 276. (s) Bac. Abr. Inns, B. Parher v. 
 
 (o) Sroadmod v. Granara, 10 Eich. FUnt, 12 Mod. 235. 
 
 423 J 24 Law J., Exoh. 1. {t).- Thompson. -v. Lacy, 3 B. & Aid. 
 
 {p) Morgan v. Rwvey, 6 H. & N. 265 ; 283. 
 
 30 Law J., Exch. 131. («) Doe r. Laming, 4 Campb. 77. 
 
 (2) Bac. Abr. Inns, C. 4. 
 
496 DUTIES OF INNKEEPERS. [CHAP. X. 
 
 Duty of the innkeeper to protect his guest from rohhery and theft. 
 — It has been justly observed by the civilians, that the common 
 wants and necessities of mankind compel men to trust valuable 
 property to the keepers of public inns, who have frequent oppor- 
 tunities of combining and colluding with thieves, to the prejudice 
 of those who trust them ; and it was thought right in the Eoman 
 law to deprive such persons of the temptation to do wrong, and to 
 compel them to be honest by making them responsible for the 
 safety of the goods intrusted to their keeping. By a public edict 
 of the Eoman praetor it was ordained, that if shipmasters and 
 carriers, innkeepers and stablekeepers, did not restore what they 
 had received to keep safe, he would give judgment against them (x). 
 
 The construction put upon this edict was, not that the ship- 
 master, carrier, or innkeeper was bound to deliver the goods safe at 
 all events ; but that he was bound to deliver them, unless prevented 
 by a fatale damnum, or a loss by what was termed the decree of 
 fate, or order of destiny, such as a loss by lightning, or an earth- 
 quake, or a sudden inundation that could not have been foreseen, 
 and that no human care or skUl could have provided against or 
 avoided ; or an irresistible attack by pirates and hostile forces, the 
 enemies of the state. The spirit of this edict has been universally 
 adopted by the jurisprudence of continental Europe, and was 
 introduced at an early period into our common law. 
 
 The original writ against an hostler or innkeeper for the loss of 
 the goods of his guest declares -that "secundem legem et con- 
 suetudinem regni nostriAnglise hospitatores qui hospitia communia 
 tenent ad hospitandos homines, per partes ubi hujusmodi hospitia 
 existunt transeuntes, et in eisdem hospitantes, eorum bona et 
 catalla infra hospitia ilia existentia absque subtractione, seu 
 amissione, custodire die et nocte tenentur, ita quod pro defectu 
 hujusmodi hospitatorum seu servientum suorum hospitibus hujus- 
 modi damnum non eveniat uUo modo " {y). 
 
 From the terms of this writ, which is the foundation of the 
 common law concerning hostlers, it was resolved in Calye's 
 ca^e (z) : — 
 
 " 1. That the lodging ought to be a common inn : for if a man 
 be lodged, at his request, with another who is- not an innholder, if 
 he be robbed in his house by the servants of him who lodged him, 
 or any other, he shall not answer for it, for the words are, 'hospi- 
 
 (x) "Ait Praetor Nautse, caupones, hoc esaet statutum materia daretur cum 
 
 stabularii, quod oujueque. salvum fore furibus adyersus eos, quos recipiunt, co- 
 
 receperint nisi restituunt in eos judicium eundi." — Dig.lib. 4, tit. 9, s. 1. 
 
 dabo."— Dig. lib. i, tit. 9. " Maxima (y) Reg. Br. F. N. B. 94, a, b. 
 
 est utilitas hujus edicti ; quia necesse est (z) 8 Co. 32 ; 1 Smith's L. C, 6th ed. 
 
 plerumque eorum fidem sequi, et res cus- 105. 
 f^ifs eorum coxpipit^er^ ^ . , , . et nisi 
 
SECT. 2.] EOBBEKY IN COMMON INNS. 497 
 
 tatores qui communia hospitia tenent.' And so are the books, &c. 
 And the plaintiff ought to declare that the defendant keeps 
 ' commune hospitium.' 
 
 " 2. That it appears from the words of the writ, that common 
 inns are instituted for passengers and wayfaring men, and therefore 
 if a neighbour, who is no traveller, as a friend, at the request of 
 the innholder, lodges there, and his goods be stolen, &c., he shall 
 not have an action, for the writ is ' ad hospitandos homines,' &c., 
 ' transeuntes, et in eisdem hospitantes,' &c. 
 
 " 3. That the words ' eorum bona et catalla infra hospitia Ula 
 existentia' show that the innholder, by law, shall answer for 
 nothing that is out of his inn, but only for those things which are 
 ' infra hospitium,' and the books agree that the innholder is bound 
 to answer for himself and for his family of the chambers and 
 stables, for they are ' infra hospitium ; ' and that if an innholder 
 lodges a man and his horse, and the owner requires the horse to 
 be put to pasture, and there he is stolen, the innholder shall not 
 answer for him ; but that if the owner doth not require it, but the 
 innholder, of his own head, puts his guest's horse to grass, he shall 
 answer for him if he be stolen. 
 
 "4. That the words 'pro defectu hospitatorum sen servientum 
 suorum' show that the innholder shall not be charged, unless 
 there be a default in him, or his servants, in the well and safe- 
 keeping and custody of their guest's goods and chattels withia his 
 common inn, for the innkeeper is bound in law to keep them safe, 
 without any stealing or purloiuing ; and it is no excuse for the 
 innkeeper to say that he delivered the guest the key of the chamber 
 in which he is lodged, and that he left the chamber-door open, but 
 he ought to keep the goods and chattels of his guest there in safety. 
 And although the guest doth not deliver his goods to the innholder 
 to keep, nor acquaints him with them, yet if they be carried away 
 or stolen the innkeeper shall be charged, although they who stole 
 or carried away the goods be unknown. But if the guest's servant, 
 or he who comes with him, or he whom he desires to be, lodged 
 with him, steals or carries away his goods, the innkeeper shall 
 not be charged, for there the fault is in the guest to have such 
 a companion or servant. But if the innkeeper appoints one to 
 lodge with him, he shall answer for him. If the innkeeper 
 requires his guest that he will put his goods in such a chamber 
 under lock and key, and then he will warrant them, otherwise not, 
 and the guest lets them lie in an outer court, where they are taken 
 away, the innkeeper shall not be charged, for the fault is in the guest. 
 
 " 5. That although the words ' bona et catalla ' do not of their 
 proper nature extend to charters and evidences concerning freehold, 
 or inheritance, or obligations, or other deeds or specialties, being 
 
498 DUTIES OF INNKEEPERS. [CHAP. X, 
 
 things in action, yet in this case it is expounded hy the latter 
 words to extend to them ; and, therefore, if one brings a bag or 
 chest, &c., of evidences into the inn, or obligations, deeds, or other 
 specialties, and, by default of the innkeeper, they are taken away, 
 the innkeeper shaU. answer for them; but the words, 'bona et 
 catalla ' extend only to moveables, and, therefore, if the guest be- 
 beaten in the inn, the innkeeper shall not answer for it. These 
 words aforesaid extend to all moveable goods, although of them 
 felony cannot be committed " {a). 
 
 Where a guest laid a reticule containing money on her bed, 
 and afterwards went into her sitting-room, the door of which was 
 opposite the bedroom, and remained there about five minutes, and 
 then sent 'her companion for the reticule, which was missing, and 
 could not afterwards be found, it was held that the innkeeper was 
 bound to make good the loss (6). 
 
 A traveller went to an inn, taking with him divers packages of 
 sillf, some of which were taken up-stairs to his bedroom, and others 
 were, by his directions, carried into the commercial room, into 
 which he was shown. After remainiiig for some days therein, and 
 after having been several times taken out and brought back again 
 by the traveller, the goods were stolen, and an action having been 
 brought against the innkeeper to recover the value'of the property, 
 it was shown to be the practice of the inn to take all the luggage of 
 the guests into their bedrooms, unless orders to the contrary were 
 given; and it was contended that the traveller, by ordering the 
 goods to be taken into the commercial room, which was a place of 
 common resort for aU the guests indiscriminately," had taken- the 
 goods under his own protection, and could not therefore make the 
 innkeeper responsible for the loss ; but the court held, that if the 
 innkeeper had intended not to be responsible for goods deposited by 
 the guests in the commercial room, he should have declared his 
 intention to them at the time the goods were placed there (c). But 
 if the guest is guilty of gross negligence in leaving a box containing 
 money or bank-notes in the commercial room, after having opened 
 it and exposed the contents to the bystanders, he cannot, if the 
 money is stolen, charge the innkeeper with the loss {d). 
 
 A servant having been sent with goods to market, and being 
 unable to sell them, went to an inn, and asked if he could leave 
 the goods there until next market-day. The innkeeper's wife said 
 they were very fuU of parcels, and declined to take charge of them. 
 The servant then sat down in the inn, ordered something to drink, 
 and put the goods on the ifloor immediately behind him. When he 
 
 (a) Cal/ye's case, 8 Co. 32. (d) Armutead v. White, 20 Law J., Q. B. 
 
 (5) Kent v. Shuelcard, 2 B. & Ad. 803. 524 ; S. C. nom. Armistead v. Wilde 17 
 (c) Bklmond v. Smith, 8 B. & C. 9. Q. B. 261. 
 
SECT. 2.] EOBBEKY IN COMMON INNS. 499 
 
 got up again the goods were gone, and were never afterwards seen 
 or heard of, and it was held that the innkeeper was responsible for 
 the loss (e). But " if a guest come to a common innkeeper to 
 harbour there, and he say that his house is full of guests, and do 
 not admit him, &c., and the party say he will make shift among 
 the other guests, and be there robbed of his goods, the innkeeper 
 shall not be charged " (/). And if a guest takes upon himself the 
 exclusive charge of the goods which he brings into the house of an 
 innkeeper, he cannot afterwards charge the innkeeper with the 
 loss (g). "I agree," observes Lord Ellenborough, "in what is 
 stated in Oalye's case, that the mere delivery of the key of a room 
 will hot dispense with the care and attention due from the landlord, 
 and that he cannot exonerate himself by merely handing a key 
 over to his guest ; but if the guest take the key, it is a very proper 
 question for a jury, whether he takes it animo custodieTidi, and for 
 the purpose of exempting the landlord from his liability, or whether 
 he takes it merely because the landlord forced it upon him, or for 
 the sake of securing greater privacy, in order to prevent persons 
 from intruding themselves into his room" (h). And where a guest, 
 having the key deliyered to him, omits to use it, and a thief comes 
 into his room by the door and steals his goods, that is, or may be, 
 evidence for the jury of contributory negligence, which wiU 
 disentitle him to recover against the innkeeper. The question 
 is, whether the loss would or would not have happened, if the 
 guest had used the ordinary care that a prudent man might be 
 reasonably expected to take under the circumstances (i) ; "what 
 would be prudent in a small hotel in a smaU town might be the 
 extreme of imprudence in a large hotel in a large city, where, 
 probably, three hundred bedrooms are occupied by people of all 
 sorts " Qc). 
 
 Whenever the goods and chattels of the guest have been 
 actually delivered to the innkeeper or his servants the latter 
 cannot, of course, discharge himself from the strict common-law 
 responsibility by showing that the goods were stolen outside the 
 inn, if he has himself placed them in the spot from whence they 
 have been taken. Where the plaiintiff, a farmer, drove his horse 
 and gig to an inn on a market-day, and the hostler took the horse 
 out of the gig and put him into a stable, and then placed the gig 
 outside of the inn-yard, in a part of the open street where the inn- 
 keeper was in the habit of placing the carriages of his guests on 
 
 ■ (e) Sennet v. Mellor, 5 T. E. 276. (h) Bm-gm t. Okments, 4 M. & S. 310 ; 
 
 /) WUt^s case. Dyer, 158 b. 1 Stark. 252, n. 
 
 (g) Fcmmorth T. Pachwood, 1 Stark. W Oi>pen}mmy. WUte Lion HoH Co., 
 
 ojQ ' Xi, K., C r, 515. 
 
 ^*^- (h) Per Montague Smith, J., 8. C. 
 
 E E 2 
 
500 DUTIES OF INNKEEPERS. [CHAP. X. 
 
 fair-days, and the gig was stolen therefrom by some person un- 
 known, it was held that the innkeeper was responsiUe for the 
 loss (I). And the innkeeper is liable, although sick at the time, 
 and incapable of attending to his affairs, for he is bound to retain 
 trusty servants to seciire the goods of his guests when incapable of 
 doing so himself (m). This extended responsibility of the inn- 
 keeper, which makes him an insurer of the goods against loss by 
 robbery, does not extend to losses occasioned by an accidental iire 
 (ante, p. 249, et seq.), nor to damage or injury to the goods which is 
 the result of accident. The innkeeper is not responsible for injuries 
 which the horses of guests inflict upon each other in the stables of 
 the inn, provided he has taken all due care to prevent the intro- 
 duction into the stables of vicious and kicking horses (n). 
 
 Limitation hy statute of the liability of innkeepers. — By 26 & 27 
 Vict. c. 41, s. 1, it is enacted, that no innkeeper shall be liable to 
 make good to any guest any loss of, or injury, to, goods or property 
 brought to his inn, not beiag a horse or other live animal, or any 
 gear appertaining thereto, or any carriage, to a greater amount than 
 the sum of thirty pounds ; except where such goods or property 
 shall have been stolen, lost, or injured through the wilful' act, 
 default, or neglect of such innkeeper, or any servant in his employ, 
 or where such goods or property shall have been deposited expressly 
 for safe custody with such innkeeper. 
 
 If any inhkeeper refuses to receive for safe custody any goods 
 or property of his guest, or if any guest, through any default of 
 such innkeeper, is unable to deposit such goods or property as are 
 mentioned in the Act, the innkeeper will not be entitled to the 
 benefit of the Act in respect of such goods or property (s. 2). In 
 the case of a deposit for safe custody, the innkeeper may require, 
 as a condition of his liability, that the goods or property be de- 
 posited in a box or other receptacle, fastened and sealed by the 
 person depositing the same (s. 1). 
 
 Every innkeeper is required to cause at least one copy of the 
 first section of the Act, printed in plain type, to be exhibited in a 
 conspicuous part of the hall or entrance to his inn, and he is 
 entitled to the benefit of the Act in respect of such goods or pro- 
 perty only as shall be brought to his inn while such copy shall be 
 exhibited (s. 3). By the interpretation clause (s. 4) it'is declared, 
 " that the word inn shall mean any hotel, inn, tavern, public-house, 
 or other place of refreshment, the keeper of which is now by law 
 responsible for the goods and property of his guests, and the word 
 ' innkeeper ' shall mean the keeper of any such place." 
 
 (I) Jones V. Tyler, 1 Ad. & E. 522 ; 3 (») Dawson v. Ohamney, 5 Q. B. 105, 
 
 N. & M. 576. explained and qualified by Morgan T. 
 
 (m) Cross y. Andfl-ev/s, Cro, Bliz, 623, Eavey, 30 Law J., Exch. 134, 
 
SECT. 2.] WHO ARE OUESTS AND TEAVELLEES. 501 
 
 Losses occasioned hy the misconduct of the guest. — If a guest at an 
 inn asks for a private room for the purpose of exhibiting goods for 
 sale, and receives customers, and invites the admission of strangers 
 into the inn, upon whose ingress and egress the innkeeper has no 
 check, the latter, is not responsible for the safety of the goods in 
 the room so used (o). And if the guest is himself guilty of negli- 
 gence in leaving money and valuables about in rooms of common 
 resort, he cannot, if the money and valuables are stolen, charge the 
 innkeeper with the loss, (ji). 
 
 The rule of law resulting from all the authorities is, that the 
 goods remain under the charge of the innkeeper and the protection 
 of the inn, so as to make the innkeeper liable for a breach of duty, 
 unless the negligence of the guest occasions the loss in such a way 
 as that the loss would not have happened, if the guest had used 
 the ordinary care that a prudent man may be reasonably expected 
 to have taken under the circumstances {q). 
 
 Who are guests and travellers. — He who seeks to charge another 
 as an innkeeper for the loss of goods must show that he was a 
 traveller and guest at the inn. 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 latter is clothed only with 
 the ordinary duties and responsibilities of a bailee, for a man does 
 not become a guest at an inn by the mere delivery of goods to the 
 landlord to keep (r). It has been said, however, that a man may 
 become " a guest by leaving his horse as much as if he had staid 
 himself, because the horse must be fed, by which the innkeeper 
 has gain, otherwise than if he had left a trunk or a dead thing " (s). 
 " If an host invite one to supper, and,, the night being far spent, 
 invites him to stay all night, if he is afterwards robbed, yet shall 
 not the host be charged (as an innkeeper), for this guest was no 
 traveUer" {t). 
 
 The length of time that a man may remain at an inn does not 
 affect or alter his character as a traveller, or in any way qualify or 
 vary the common-law liability of the innkeeper. Thus, "If J. 
 comes with goods to an inn in London, and stays there for a week, 
 month, or longer, and is there robbed of them, he shall have an 
 action against his host ; though, perhaps, being at the end of his 
 journey, he cannot then be said to be transeuns according to the 
 writ in the register (u). But if a man takes apartments in an inn 
 (0) Bv^gm v. Clements, 1 Stark. 251 n,; (r) GelUy t. CZcrifc, Cro. Jac. 188. Smith 
 
 ■ (p) ^™S?L V. White, ante, p 498. (s) YorJcr. Orind^one, 1 Salk 388. 
 
 ^' (3) 'CashiU V. WriyU, 6 Ell. & Bl. 900. (») Ihid. 
 
 See ante, p. 499. 
 
502 DUTIES OF INNKEEPBES, [CHAP. X. 
 
 for a term, by the week^ month, or year, for example, or if he resides 
 in the inn under a special contract for his bed and board, he is not 
 ta contemplation of law sojourning at the inn as a traveller, but 
 rather in the character of a lodger at a private boarding-house. 
 If, therefore, he is robbed in the house, he cannot charge the 
 landlord as an innkeeper (x). Holt, C.J., is reported to have 
 held, "that if one come to an inn and make a previous con- 
 tract for lodging for a set time^ and do not eat or drink there, 
 he is no guest, but a lodger, and as such he is not under the 
 innkeeper's protection ; but if he eat and drink there it is other- 
 wise, or if he pay for his diet there, though he do not take it 
 there " (y). 
 
 Lien of innkeepers. — As the law imposes upon the common inn- 
 keeper the burthen of receiving and taking care of the goods and 
 chattels of all travellers and guests who alight at, and take up 
 their abode within the inn, it gives him a right to retain such 
 goods and chattels as a pledge for the payment of the reckoning of 
 the guest. If a horse or carriage is put up in the stables of the 
 inn by a guest, the innkeeper has a lien on the horse for its keep, 
 and on the carriage for its standing-room, whetheT the horse or the 
 carriage be the property of the guest or of some third person from 
 whom it has been fraudulently taken or stolen, unless the inn- 
 keeper knew at the time he received the guest that he was not the 
 true owner of the horse or the carriage («). But if the property 
 does not accompany the person of the guest when he comes to the 
 inn, but is afterwards brought there for the use of the guest, and is 
 known by the innkeeper to be the property of another at the time 
 it is brought to the inn, the innkeeper cannot set Up any lien upon 
 it for the debt due from his guest (a). He has no lien upon an 
 animal put into his stable unless it be brought by a guest (6). 
 The innkeeper has no right to take a parcel or other property out 
 of the hands of the guest, nor can he detain the property of the 
 guest if he has previously agi-eed to give the latter credit for his 
 entertainment ; nor can the innkeeper detain goods as a security 
 for the payment of the reckoning for beer and ale drunk by a 
 guest, unless the requirements of the 11 & 12 Wm. 3, c. 15, as to 
 selling beer in stamped vessels, and rendering an account of the 
 number of quarts and pints drunk, have been complied with ; nor 
 can he detain any goods not received by him in his character of 
 
 (k) Warburton, J,, WatbroTce T. Griffitji, OrawUy, 18 Q. B. 197 ; 18 law J., Q. B. 
 
 Moore, 877. Grimston t. Imikeeper, Hetl. 156. Snead v. Waihins, 1 C. B., N. S. 
 
 49. 267 ; 26 Law J., G. P. 57. Bncy. du Dr. 
 
 (jf) Pwrlcer v. Flint, 12 Mod. 265. (Atjbbege), 25. 
 
 (z) Yorlc V. Qrenaugli, 2 Ld. Itaym. (a) Broadwood v. Qranara, 10 Exch. 
 
 866. Shi/pwitli y. , 1 Bulst. 170. 422; 24 Law J., Exch. 1 . 
 
 Johnson v. MiU, 3 Stark. 172. TwriU y. (h) Binns t. Pigot, 9 C. & P. 209. 
 
SECT. 2.] AND LODGING-HOUSE KEEPEES. 503 
 
 innkeeper, and not brought to the inn by a person who is received 
 and lodged in the inn as a guest (c). 
 
 The innkeeper holds the chattels detained by him in the nature 
 of a pledge, so that if he once permits his guest to take them 
 away, and so relinc[uishes his pledge, he cannot afterwards retake 
 them. Therefore, if the innkeeper allows his guest to remove his 
 horses after a debt has been incurred for keeping them, and they 
 are afterwards brought to the inn and a new debt contracted, the 
 innkeeper can detain them for the latter portion of the debt, but 
 not for the former (d). And it is said that if several horses are 
 brought to ah inn by the guest, each is a pledge for its own keep, 
 but not for the keep of the others ; so that if the hosteller 
 permit him to take away all but one, he cannot retain that one 
 until the expense of the whole is paid (e). If the guest takes 
 the chattel away without the hosteller's consent, the latter may 
 take it on a fresh pursuit as a distress rescued, if he follow 
 promptly, but not otherwise (/). However long horses may 
 remain at an inn, the relative duties and obligations of inn- 
 keeper and guest continue until some fresh contract or arrangement 
 is made (g). 
 
 Detention of tlie person of the guest. — It was thought at one 
 time that the law accorded to the common innkeeper the right 
 or privilege of detaining the person of a guest who had eaten food 
 in the inn, until he had received payment of his reckoning (A) ; 
 but this is said to have been a vulgar error, founded on the 
 dictum of a single judge, and has been overruled, as it would 
 arm the innkeeper with the power of detaining a man perhaps 
 for life, without any legal process or adjudication in the matter (i). 
 
 Liability of lodging-house keepers. — We have seen, by the first 
 resolution in Oalye's case {ante, p. 496), it was held, " that if a man 
 be lodged with another who is not an innholder, if he be robbed in 
 his house by the servants of him who lodged him or any other, he 
 shall not answer for it." But it is the duty of every lodging-house 
 keeper to take such care of his house as every prudent householder 
 might be expected to take/ and to be careful in the choice of his 
 servants. If articles belonging to the lodger are actually placed in 
 his hands, he will be responsible, like any other bailee {ante, p. 426), 
 for the loss of them ; but he is not a bailee of them merely by 
 reason of their having accompanied the person of the lodger and 
 
 M Sunlolfy Alford, 3 M. & W. 248. (/) Hosse v. Bramsteed, 2 EoU. 438. 
 
 ^^- TDDirn^ O'. B. 132 ; 17 Law (g) Alkny. M 12 0. B., N. S. 63 
 
 ' ' Q 1 I .a nr .1 111-* '■IflK 
 
 T ri -p n-IQ 31 Law J., C. p. u«u. 
 
 '(^\ Tones % Thurloe, 8 Mod. 173. (h) Bac. Abr. Inns, D. 
 
 j}^ iTeJi, 1 Str. 556, 557. ^ (i) Svmholfy. Alford, 3 M. & W. 254. 
 (e) Moss T. Tawnsind, 1 Bulstr. 207. 
 
504 NEGLIGENCE OF COMMON CAEEIEES. [CHAP. X. 
 
 been placed in Ms house by the latter. The law is, that the lodger 
 must take care of his own goods in his lodgings (k). 
 
 SECTION III. 
 
 EEMEDIES AGAINST COMMON CAEEIEES AND COMMON INNKEEPEES EOE 
 NEGLIGENCE AND BREACH OF DUTY. 
 
 Summary proceedings agmnst railway and canal companies. — 
 Persons complaining against railway or canal companies for not 
 affording reasonable facilities for receiving, forwarding, and deliver- 
 ing traffic upon and from the several railways and canals belonging 
 to and worked by such companies,' or of anything done, or omitted 
 to be done, in contravention of the Eailway and Canal Traffic Act 
 {ante, p. 480, et seq), may obtain relief by summary application to 
 the Court of Common Pleas, or to any judge of such court, by 
 motion or summons (Z). 
 
 Parties to ie made plaintiffs in actions against carriers. — The 
 action against a carrier for the loss of goods intrusted to him for 
 conveyance should, in the absence of an express contract for the 
 carriage of them, be brought by the owner of the goods, as the 
 party damnified. 
 
 Where goods have been delivered to a carrier to be carried to a 
 person designated by the consignor, the consignee is primd facie 
 the owner of the goods, and the person to whom the carrier is 
 responsible for their safe conveyance. This is generally the case 
 when goods are delivered to a carrier to be conveyed to a purchaser 
 in fulfilment of a contract, of sale, for as soon as the goods are 
 delivered to the carrier they become the property of the purchaser ; 
 so that if they are lost, the purchaser, and not the vendor, must sue 
 for the loss of them (m). But if they are not delivered to the 
 carrier in execution of a contract of sale, but by the consignor and 
 owner to be conveyed to his servant in the country, then the con- 
 signor, and not the consignee, would be the proper person to sue for 
 the loss of them. So, if from fraud or non-compliance with the 
 Statute of Frauds, no actual sale has taken place, and no interest 
 in the goods has vested in the consignee by reason of the delivery 
 
 (i) Holder T. S<mlhy, 8 C. B., K. S. (I) 17 & 18 Vict. o. 31, ss. 3—6. 
 
 254 ; 29 Law J„ C. P. 246. Bansey v. (m) Dawes v. Peck, 8 T. E. 332. 
 
 Richardson, 3 Ell. & Bl. 144 ; 23 Law J., Coombs v. Bristol <md Exeter Mail. Co., 27 
 
 Q. B. 223. Law J,, Exch. 269, 402 ; 3 H. & N. SIO. 
 
SECT. 3.] ACTIONS — PARTIES. 505 
 
 to the carrier, then the consignor is the . proper person to sue for 
 the loss of the goods («). 
 
 Where the consignor had delivered goods to a carrier, in 
 obedience to a fictitious order, which professed to come from a well- 
 know tradesman of respectability, but had in reality been sent by 
 a swindler, it was held that as no iond fide sale had taken place, 
 the consignor had not been divested of his property in the goods, 
 and that he was, therefore, the proper person to sue the carrier for 
 neglect of duty in delivering them to the swindler, who applied for 
 them at the carrier's ofiice, instead of delivering them at the 
 residence of the tradesman to whom they were addressed (o). But 
 when the carrier, in consideration of a sum of money paid, or 
 agreed to be paid, by the consignor, as the price of the carriage of 
 goods, agrees with him to convey them to the consignee, it is no 
 answer to an action brought by the consignor against the carrier, 
 upon such special contract, to say that he is not the owner of the 
 goods. In such a case the action may be brought either by the con- 
 signor or by the consignee (p). Thus, whete a laundress, residing 
 at Hammersmith, was in the habit of employing a carrier to 
 convey the linen she washed from Hammersmith to the owner in 
 London, and the carrier was paid by the laundress, it was held that 
 the latter was entitled to maintain an action against the carrier for 
 the loss of the goods by the way, although they belonged to the 
 consignee (q). In these cases, the baUee of the goods, who has a 
 special property in them, may enforce the express contract entered 
 into with the carrier, unless his principal interferes to prevent him. 
 " The rule is, that either the bailor or the bailee may sue, and 
 whichever first obtains damages it is a full satisfaction " (r). 
 
 Every person who has been injured by the negligent performance 
 of the work of carrying may maintain an action for damages against 
 the carrier, although the work was done under a special contract to 
 which he is no party. A servant, for example, may maintain an 
 action against a railway company, or other carrier, for injuries 
 sustained by him from the negligent management of a train by 
 which he was a passenger, or from the negligent execution of the 
 work of carrying, although the contract for his conveyance was 
 made, and the hire or fare paid, by his master, the duty of carrying 
 carefully being a duty which arises independently of the contract (s). 
 
 (n) Coats T. Chaplin, 3 Q. B. 489. Wilson, 1 T. E. 659. Dunlop v. Lamlerl, 
 
 Addison on Contracts, 6th ed., p. 488, et 6 CI. & Kn. 600. 
 
 seq. , (?) Freeman v. Bireh, 1 N. & M. 420. 
 
 (o) Duff V. BvM, 6 Moore, 469. Ste- (r) NicoUs T. Bastard, 2 C. M. & K. 
 
 phenson v. HaH, 1 M. & P. 357 ; 4 Bing. 
 476. 
 
 (jp) Davis V. James, 5 Burr. 2680, 
 Bell T. Chaplain, Hard. 321. Moore v. 
 
 660. 
 
 476. (*) Marshall y. TorJt, Newcastle, and 
 
 (jp) Davis V. James, 5 Burr. 2680. Berwick Rail. Co., 11 0. B. 655. 
 
506 DUTIES OF COMMON CAREIEES AMU INNKEBPEKS. [CHAP. X. 
 
 So, "where a railway company was bound by statute to carry the 
 mails, and the oflicers of the post-office who accompanied them^ it 
 was held that the company must exercise a reasonable care in per- 
 forming the duty cast upon them by the statute, and were bound to 
 carry safely ; so that if any of&cer of the Post-Office was injured 
 by the negligent management of their trains, he was entitled to 
 maintain an action against them for damages, although the contract 
 for his conveyance had been entered into between the company 
 and the Postmaster^G^neral (i)j 
 
 Parties to he made defendants. — ^When goods have been delivered 
 to the driver of a stage-coach to be carried, and have been lost by 
 the way, an action ex contractu for negligence should, be brought 
 against the coach-proprietor, and not the mere servant or agent (u). 
 But as all who participate in a wrongftil act are responsible ex 
 delicto for the injurious consequences of it, the servant may be 
 sued for the breach of duty as well as the master or the employer. 
 The 8th section of the Carriers Act (ante, pp. 475-6) provides that 
 the Act shaU not protect the coachman, guard, book-keeper, or 
 other servants of the common carrier from liability for losses or 
 injuries occasioned by their own personal neglect or misconductt 
 
 Every railway company is responsible for the detention or con- 
 version, by its officers and servants, of the property which has 
 come into the hands of such servants and agents in the course of 
 th^ir employment in the business of the company. There must be 
 some one authorized on the part of the company at every station 
 to receive and deliver out goods, and to do things promptly that 
 require immediate attention, and whoever is permitted by the 
 company to have dominion over their stations, and to exercise 
 authority over their property, and over their porters and servants, 
 will be presumed to be clothed with the necessary authority, and 
 his acts, done within the scope of his ordinary employment, wiU be 
 binding on the company. Thus, where some young quicks were 
 forwarded by railway to the plaintiff, and the general superinten- 
 dent of the company, at the request of the plaintiff, in order to 
 keep the quicks alive, permitted them to be put into the company's 
 ground at the railway station, where they remained under the 
 control and charge of the superintendent, and the latter subse- 
 quently refused to deliver them up to the plaintiff, it was held that 
 the railway company was responsible for the unlawful detention of 
 the property by their servant {x). 
 
 The common carrier cannot qtialify or limit his liability in 
 respect of the negHgenee, want of sldU, or carelessness of his 
 
 (t) Coltett V. Lond. cmd North- Western (x) Toff Vale Mail Co. v. QUes, 23 Law 
 SaU. Co., 16 Q. B. 989. J., Q. B. 43. 
 
 (u) Wiliicms v, Crmston, 2 Stark. 82. 
 
SECT. 3.] ACTIONS — PARTIES — PLEADINGS. 507 
 
 servants. and agents, in and alaoutthe carrying of the goods, by any 
 private arrangement as to remuneration out of the proiits of the 
 business or otherwise, between himself and such servants or agents. 
 " If a common carrier should allow his driver of the carriages 
 some small things as perquisites, the master would, without all 
 doubt, be still liable ; and that is only a private agreement between 
 master and servant, and only a different way of paying his servant's 
 wages " (2/). 
 
 When goods have been delivered to a railway company, to be 
 carried to a particular destination beyond the limits of their own 
 line of railway, and the goods are lost by the negligence of the 
 servants employed upon an intermediate line, the railway company 
 to whom the goods were first delivered, and with whom the 
 contract for their conveyance was made, is the proper party to be 
 sued for the loss, and not the company on whose Une the loss 
 actually took place (s). But every railway company which allows 
 its railway to remain open for public trafl&c, and takes toll for 
 the use of it by other lines, is responsible to persons who sustata 
 injury from the line being unsafe and dangerous, although such 
 persons are conveyed along it in the carriages of some other 
 company (a). See ante, p. 183. 
 
 Declarations against a common carrier for refusing to caffy 
 should show that the defendant is a common carrier of goods 
 plying for hire between the place where the goods were tendered 
 to him for conveyance and the place to which they were addressed ; 
 that the plaintiff tendered to the defendant certain goods to be 
 carried from the one place to the other ; that the defendant had 
 room and the means of receiving and carrying them, and the 
 plaintiffs were ready and willing to pay him his customary hire, 
 yet the defendant would not receive and carry the goods, whereby 
 the plaintiffs were put to great loss and incohvenience, setting forth 
 any special damage that may have been sustained, and concluding 
 with a claim for damages (&). 
 
 Declarations against an innkeeper for the loss of chattels deposited 
 within the precincts of the inn need not set out the general custom of 
 the realm making the innkeeper responsible for the safety of the 
 goods of his guests, as the general custom is part of the common 
 law (c), and need not be proved at the trial ; but the declaration 
 should allege that the defendant kept a common inn for the recep- 
 tion, lodging and entertainment of travellers, that the plaintiff 
 
 (y) Page, J., Cas. temp. Hard. 80. (a) Birhett v. Whitehavetti &c., Rail. 
 
 And see Hyde v. Trent and Mersey Nm. Go., 4 H. & K 738. 
 
 Co 5 T E. 397. ^V) Pichford v. Chwiid Junction Bail. 
 
 (z) Mytton v. Mid. RaU. Co., 4 H. & K. Co., 8 M. & W. 372. 
 
 621 ; 28 Law J., Exch, 385. See ante, (c) Dale \. Had, 1 Wils. 281. 
 pp. 486—7. , 
 
508 NEGLIGENCE OF COMMON CAEKIEKS. [CilAP. X. 
 
 being a traveller came to the said conimon inn of the defendant, 
 and, was received ahd lodged therein, and that the plaintiff brought 
 into the said common inn certain articles (describing them), and 
 that the defendant, whilst the plaintiff abided in the said common 
 inn as a guest, and the said articles remained within the inn, did 
 not keep the said articles, &c., safely, but so negUgently conducted 
 himself in the matter, that they were through the negligence of the 
 defendant taken and carried away, and have become wholly lost to 
 the plaintiff; concluding with a claim of damages (cf). 
 
 Plea of not guilty. — The plea of not guilty in actions for 
 negligence operates, as we have seen, as a denial only of the 
 wrongful act alleged to have been committed by the defendant, and 
 no defence other than such denial is admissible under that plea. 
 Thus, in actions against a carrier for loss of, or damage to, goods, 
 the plea of not guilty will operate as a denial of the loss or 
 damage, but not of the receipt of the goods by the defendant as a 
 carrier for hire, or of the purpose for which they were received, or 
 of the plaintiff's property in the goods (e). 
 
 Special pleas. — If, therefore, the defendant denies the receipt of 
 the goods to be conveyed by him as a common carrier, or denies 
 his receipt of them altogether, he must, by special plea or traverse, 
 allege that he did not receive the goods to be carried as in the 
 declaration mentioned. If the plaintiff has declared against him 
 upon his liability as a common carrier, insuring the safe convey- 
 ance of the things he carries, and it appears that the things were 
 delivered to him under a special contract, the cause of action will 
 be disproved under this plea or traverse (/). If he denies the 
 plaintiff's title or right to the possession of the property, he must 
 plead a plea alleging that the property was not, at the time he 
 received it to be carried, the property of the plaintiff {g) ; or, 
 admitting that the plaintiff was the owner of the property at the 
 time it was delivered to him, he may show that the plaintiff's right 
 to the possession of it ceased, or had been determined, and that 
 some third party had, since the bailment, become entitled to the 
 property, and had demanded it of the defendant (Ji). 
 
 If the defendant relies upon the Common Carriers Act, he 
 must by his plea show that the articles delivered to him for con- 
 veyance were of the description mentioned in the statute, and that 
 at the time of the delivery of them to him to be carried, the value 
 and nature of the goods were not declared by the plaintiff (*). 
 
 (d\ Jones v. TyUr, 1 Ad. & E. 522. Exall, 6 Exch. 341. 
 
 (e) Eeg. Gen. Hil. Term, 16 Viet. ; 1 (A) Sheridan v. New Quay Co., i C. B., 
 
 Ell. & Bl. App. Ixxxi., Ixxxii. N. S. 618. JEwrop. and Austral. S. M. 
 
 (/) White T. Gt. Western Bail. Co., 2 Co. t. R. M. St. P. Co., 30 Law J., C. P. 
 
 C. B., N. S. 7. 247. 
 
 (jr) Ante, pp. 368—9. Cheesman t. (i) Pianciani v. London and South 
 
SECT. 3.] ACTIONS — EVIDENCE. 509 
 
 Evidence at the trial — Proof of the bailment. — To charge the 
 common carrier for the loss of goods, however occasioned, it must 
 of course be shown that the goods were either actually or construc- 
 tively bailed to him or his servants to be carried. They ihust 
 either have been delivered into his hands or into the hands of his 
 servant or agent, or some person authorized by him to receive them. 
 If they were merely deposited in the yard of an inn, or upon a 
 wharf to which the carrier resorts, or were placed in his cart, vessel, 
 or carriage, without his knowledge and acceptance, or that of his 
 servants or agents, there has of course been no bailment or delivery 
 of the goods to him (Jc), and he cannot consequently be made 
 responsible for the loss of them. If the common carrier's servant 
 has been induced by the consignor to depart from the usual course 
 of dealing, and to receive goods which he was not bound to receive 
 and carry, under circumstances of hazard known to the consignor; 
 but not disclosed to the carrier's servant, or on terms different from 
 those on which alone he was authorized to receive them, the carrier 
 wiU either not be responsible for the loss of the goods, as never 
 having been delivered to him, or, at all events, not on his common- 
 law liability of an insurer (J). If the consignor has made a private 
 bararain with the driver of the cart or coach of the common carrier 
 for the conveyance of a parcel for a gratuity which was not 
 intended by the parties to iind its way into the pocket of the 
 carrier, there has beCn then no bailment to the latter, and he is 
 not consequently liable in case the parcel is lost. The bailment 
 in such a case is a bailment to the driver alone, and he alone is 
 responsible for the loss (m). 
 
 If the plaintiff has merely hired the cart or carriage of the 
 common carrier, and has sent his own servants with the goods to 
 take charge of them, and there has been no actual delivery or 
 bailment of the goods to the carrier, the latter is not responsible for 
 their safety (n). If a passenger travelling on the outside of a 
 stage-coach has kept a parcel or package in his own hands, and 
 under his own care, or taken it with him into the interior of the 
 vehicle, without the knowledge of the carrier or his servants, and 
 the thing is lost, the carrier is not responsible for the loss, as the 
 article was ndver deUvered to him or to his servants, or in any way 
 intrusted to his or their keeping. But if the thing has been ten- 
 dered to the carrier for conveyance, and the latter has directed the 
 
 Western Swil. Co., 1 8 C. B. 229. Sart y. Sim v. Ot. Northern EaU. Co., 23 Law J., 
 Ba^6Me, 6 Exch. 789 ; 21 L. X, Exch. C. R^166^.^^^^_ ^ ^^^^ ^ ^_ ^ ^ ^^^_ 
 
 f S 2 stw: 12^8^'- ^^^ i^) ^"^ Ir^n Q,, y. Pullen 2 Str. 
 
 {V) EdAiiwrds v. Skerratt, 1 East, gQf, bv^, 
 
510 NEGLIGENCE OF COMMON OAEEIERS AND INNKEEPERS. [CHAT. X. 
 
 passenger to place it in or upon any portion of the vehicle, there 
 has been a constructive bailment or delivery and acceptance of the 
 goods, so as to charge the carrier for the loss of them. If luggage 
 is placed with the knowledge of the carrier or his servants under 
 the seat on which the passenger sits, the carrier will be responsible 
 for its safe conveyance and delivery to the passenger at the place 
 of destination (o). A delivery of goods to a person sent or appointed 
 by the carrier to receive them is, of course, a delivery to the carrier 
 himself {p). 
 
 Proof of a special contract. — We have seen that every special 
 contract, notice, or condition, respecting the acceptance and carriage 
 of goods by railway and canal companies, must be signed by the 
 party sought to be affected thereby {ante, p. 482) ; and the signature 
 must be fairly obtained, for where a person who was unable to read 
 was told by a clerk of the company that the paper was a m.ere 
 matter of form and of no consequence, and he signed the paper 
 relying upon this assurance, it was held that the paper so foisted 
 upon him was not binding (cj). 
 
 If the plaintiff has declared against the defendants as common 
 carriers, alleging that they received the goods to be carried by them 
 as common carriers, and it turns out that they were received under 
 a special contract (ante, p. 482), the evidence will fail to support 
 the declaration, unless it be shown that the special contract was 
 unreasonable and void (r). 
 
 Proof of felony by a carrier's servants. — When, in consequence 
 of the plaintiff's not having paid the extra price for lost articles of 
 value, he is not entitled to recover, unless he shows that the things 
 have been stolen by the carrier's servants, it is not enough for birn 
 to make out a probable case against some one or more of the 
 carrier's servants. He must show that the things were lost under 
 circumstances wholly inconsistent with their having been stolen 
 by a stranger (s). 
 
 Proof of jus tertii by a common carrier. — A carrier who has 
 received goods from a consignor is not estopped from denying the 
 title of the latter to the goods. Common carriers are bound to 
 receive goods properly tendered to them for carriage,, and can make 
 no inquiries into the ownership of them. " The law protects them 
 against the real owner if they have delivered the goods in pursuance 
 of their employment without notice of his claim. It ought equally 
 to protect them against the pseudo owner, from whom they could 
 
 (o) Mcha/rds v. London, Brighton, <fec., . C. B., N. S. 620. 
 
 Sail. Co., 7 C. B. 848 ; 18 Law J., C. P. (r) White v. Ot. Western Sail. Co., 2 
 
 261; <mte,p.489. „ _ , C. B., N. S. 17, Latham v. SutUy, 2 
 
 ip) Syms T. Chmplm, 6 Ad. & E. 634 ; B. & C. 20. 
 
 ^^•*„.^-^29. (3) Metcalfe M. London and Brighton, 
 
 (2) Simons t. Gt. Western Sail. Co., 2 <fcc., Sail. Co., 27 Law J., C. P. 333; 
 
SECT. 3.] ACTIONS — DAMAGES EECOVEEABLE. 511 
 
 not refuse to receive the goods in the event of the real owner 
 claiming the goods, and their being given up to him. The com^ 
 pulsory character of the employment of a common carrier furnishes 
 ample ground for so holding" (t). 
 
 Damages recoveraile.^—ln all actions against common carriers 
 for unlawfully refusing to receive and carry a passenger or goods, 
 substantial damages are recoverable, as there is an injury to a right; 
 and if the plaintiff, in consec[uence of the wrongful refusal (u) of 
 the common carrier to carry him, has been obliged to take a special 
 conveyance, and incur extraordinary expenses to reach the place 
 to which he ought to have been carried, all such expenses are 
 recoverable, if claimed by the plaintiff, and specified in his de- 
 claration as part of, the damage he has sustained. So if a common 
 innkeeper unlawfully refuses to receive and provide accommodation 
 for a traveller, substantial damages are recoverable for the injury 
 done to the plaintiff's right as a traveller and wayfarer to have 
 shelter and accommodation in the common inn; and if he has been 
 put to expense in seeking shelter and accommodation elsewhere, 
 and has been obliged to hire conveyances to reach it, he is entitled 
 to recover such special damage, if claimed. 
 
 All persons are responsible for all the natural and legal con- 
 sequences resulting from acts done by them in violation of the rights 
 of others. The jury are entitled to look at all the surrounding 
 circumstances, and at the conduct of the parties, to see where the 
 blame is, and to assess the damages according to the way in which 
 the parties have conducted themselves (x). 
 
 Loss of, or injury to, chattels from negligence. — The amount of 
 damages recoverable from common carriers for loss of, or injury to, 
 goods, is regulated and controlled by the several Acts of Parliament, 
 requiring consignors in certain cases to declare the value of the 
 article at 'the time it is delivered to the common carrier to be 
 carried (awfo, p. 474). No greater damages than 50Z. are to be 
 recovered for loss of, or injury to, a horse through the neglect or 
 default of a railway company or its officers ; lal. per head for neat 
 cattle ; and 21. per head for sheep and pigs ; unless the person 
 sending or delivering the animals to the company shall, at the time 
 of delivery, have declared them to be of higher value (y). 
 
 Proof of the value and of the amount of injury lies in all cases 
 upon the person claiming compensation. If the value of horses 
 has been declared at the time of the delivery of the animals to a 
 railway company to be carried, and the contract between the 
 
 It) Sheridan v. New Quay Co.,i 0. B., («) Ante, pp. 14, 15,- post, oh. 22. 
 
 N. S. 618 ; 28 Law J., 0. P. 58. Ckees- (x) Davis v. North-Western Mail. Co., i 
 
 many. ExaU, 6 Kxch. 341, overruling Jur. N. S. 1303 ; post, oh. 22. 
 
 Ladouch v. TowU, 3 Esp. 114. {y') 17 & ] 8 Vict. o. 31, s. 7. 
 
512 - DUTIES OF COMMON CABEIERg. [CHAP. X. 
 
 parties has been made upon that basis, the plaintiff is bound by his 
 declaration of value, and cannot recover beyond the declared 
 value {z). 
 
 If special circumstances exist which would render the loss of 
 the goods, or delay in the delivery of them, productive of more than 
 ordinary injury and damage to the owner, those special circumstances 
 ought to be communicated to the carrier at the time the goods are 
 delivered to him, in order to make him responsible for special and 
 extraordinary damages in cases of non-delivery {a). Thus, where 
 the plaintiff delivered to the defendant certain machinery, contaiaed 
 in several cases, which was intended for the erection of a saw-mill 
 abroad, and on ~the arrival of the vessel at its destination, one of 
 the cases containing a part of the machinery, without which the 
 rest could not be erected, was missing, and the defendant, although 
 he knew generally of what the shipment consisted, did not know 
 that the missing box contained a material part of the machinery 
 without which the mill could not be put together, it was held that 
 the measure of damages was the cost of replacing the lost articles 
 abroad, with interest at Zl. per cent, for the delay, but not the 
 profits which the plaintiff might have made by the working of 
 the mill (h). 
 
 When the consignor has been guilty of no intentional deception 
 to conceal the risk {ante, p. 19), and his own conduct or omission 
 to declare the nature and value of the article has not in any way 
 conduced to the loss, but the loss has been caused solely by the 
 negligence and want of care of the common carrier, the latter is 
 bound by the common law to make compensation for the loss so 
 occasioned, to the extent, at all events, of the apparent and pre- 
 sumable value of the article at the time it was bailed to him to be 
 carried. But he is not, it seems, responsible for any extraordinary 
 or unusual value which may have accidentally been imparted to it, 
 and which could not, from the apparent nature and general character 
 and appearance of the thing, be fairly presumed to exist. Thus, 
 where the plaintiff had put a 50^. bank-note into his carpet-bag 
 amongst his linen and wearing apparel, and got on a coach and 
 delivered the carpet-bag to the coachman, and on the arrival of the 
 coach at its place of destination the bag was missed and never 
 afterwards seen, the jury gave a verdict for the value of the linen 
 and wearing apparel, but not for the value of the note, and the 
 court afterwards refused to increase the verdict by the amount of 
 
 (z) M'Camce v. London and North- dale, 1 Exch. 410. Gee v. Lane, and 
 
 Western JRail. Co., 7 H. & N. 477; 31 York. Mail Co., 6 H. & N. 217. 
 
 Law J., Exch. 65 ; 34 ib. 39. (6) British Columbia Saw Mill Co. v. 
 
 {a) Hadley v. Baxendale, 9 Exch. 354 ; NetOeshvp, L. K., 3 0. P. 499 ; 37 Law J,, 
 
 23 Law J., Bxoh. 179. Block v. Baxen- C. P. 236, 
 
SECT. 3.] ACTIONS— DAMAGES — INJUNCTION. 513 
 
 the note (c). In other cases, however, the plaintiff has recovered 
 the full value of the article lost {d). 
 
 Damages in respect of delay in delivery. — If by reason of goods 
 not having been delivered in due time, the season for finding 
 customers for them has passed away, and they are consequently 
 of less value to the plaintiff, the , deterioration in value may be 
 considered in estimating the amount of damage, but not the profit 
 Avhich would have been made upon the sale of them if they had 
 been delivered at the proper time (e) ; or, where tlie goods consist 
 of machinery, the presumed profit which would have been made 
 by the use of them, during the time it took to replace them (/). 
 The right measure is the market value of the goods at the place 
 and time at which they ought to have been delivered, or, if there 
 is no market, then the price at the place of manufacture, with the 
 cost of carriage, and a reasonable sum for importer's profit (^f). 
 Thus, where the plaintiff bought caustic soda of the defendant, to 
 be shipped at a certain time, which the defendant neglected to do, 
 and there was no market for caustic soda, it was held that the 
 plaintiff was entitled to recover the increased freight and insurance 
 which had become necessary by reason of the defendant's delay, 
 and also the loss of his profit upon a re-sale of the soda to A, but 
 not the amount of damages which he (the plaintiff) had paid A on 
 a sub-sale made by him to a consumer of the article (h). Hotel 
 expenses incurred by the consignee while waiting for the delivery 
 of the goods by the earner are not recoverable (i). 
 
 Injunction against railway companies to enforce compliance with 
 the Railway and CaTial Traffic Act. — By 17 & 18 Vict. c. 31, s. 3, it 
 is enacted, that it shall be lawful for any company or person 
 complaining against any railway company or canal company of 
 anything done, or any omission made in contravention of the 
 Eailway and Canal Traffic Act {ante, pp. 468, 480), to apply in a 
 summary way to the Court of Common Pleas, or any judge thereof, 
 and that it shall be lawful for the court or judge to hear and 
 determine the matter of the complaint, and to make inquiry, in the 
 mode therein directed, and to issue, a writ of injunction or interdict, 
 restraining such company or companies from further continuing, 
 such violation or contravention of the Act, and enjoining obedience 
 
 (c) MUes V. CaMe, 4 M. & P. 630 ; 6 damages ia actions against carriers, Ad- 
 Bing. 743. dison on Contracts, 6th ed. 1083. 
 
 (d) Sleat V. Fogg, 5 B. & Aid. 342. (/) British Columbia Saw Mill Co. v. 
 Walker v. Jackson, 10 M. & W. 161 ; 2 Nettleship, supra. 
 
 M. & P. 342. See Angell on Carriers, (g) O'Hanlan v. Ot. Western Mail. Co., 
 
 §262. 34LawJ.,Q.B. 154. 
 
 (e) Wilton V. Lane, and York. Sail. (h) Sorriesv. Hutchinson, 3iL. J., CP. 
 Co., 9 C. B., N. S. 642. Simmons v. 169. 
 
 South-Eastem Rail. Co., 7 Jur. N. S. 849. (i) Woodger v. Ot. Western Rail. Co., 
 
 Ot. Western Rail. Co. v. Redmayne, L. R., L. K., 2 C. P. 318. 
 1 C. P. 329. And see further, as to 
 
514 DUTIES OF COMMON CAERIEKS. [CHAP. X. 
 
 to the same (k) ; and in case of disobedience of any such -writ of 
 injunction or interdict, to order that a writ of attachment, or any 
 other process of such court incident or applicable to writs of in- 
 junction or interdict, shall issue against any one or more of the 
 directors of any company, or against any owner, lessee, contractor, 
 or other person failing to obey such writ of injunction or interdict ; 
 and to make an order directing the payment by any one or more 
 of such companies of a sum of money not exceeding for each 
 company the sum of £200 for every day, after a day to be named 
 in the order, that such company or companies shaU fail to obey 
 such injunction or interdict, such moneys to be payable as the 
 court or judge may direct, either to the party complaining, or into 
 court to abide the ultimate decision of the court, or to her Majesty; 
 and payment thereof may, without prejudice to any other mode of 
 recovering the same, be enforced by attachment, or order, in the 
 nature of a writ of execution; and, in. any such proceeding, the 
 court or judge may order and determine that all or any costs thereof 
 or thereon incurred shaU. be paid by or to the one party or the 
 other, as the court or judge shall think fit (J). 
 
 " It is abundantly clear," observes Cockburn, C. J., " from the 
 statutory enactments which enjoin on railway companies the 
 obligation to afford accommodation on equal and reasonable terms, 
 and from the provisions of the statute by which jurisdiction is 
 given to the Court of Common Pleas against the affording of undue 
 preference, or the imposing of undue prejudice or disadvantage, 
 that it was not the intention of the legislature to leave to railway 
 companies the unfettered exercise of their rights as proprietors' of 
 their respective lines; but in return for the great powers \yhich it 
 has conceded to them, and for the monopoly of the carrying business 
 of the country, which in a great degree they have been enabled to 
 acquire, has imposed on them the obligation of affording accommo- 
 dation on equal terms to the whole of the public;" and they 
 cannot promote their own interests as carriers at the expense of the 
 right of the public to that equality (m), or give to one individual 
 greater advantages at their stations (n), or upon their line, than 
 they allow to another (o). 
 
 Where a railway company, in order to compete with a particular 
 carrier in the collection and delivery of parcels, makes a man who 
 has his own waggons and horses, and therefore does not require the 
 
 (J) See Mnsonte v. Fast. Co. Bail. Co., Co., 1 0. JB., N. S. 499 ; 26 Law J., C. P. 
 
 26 Law J., 0. P. 91. 154. JBeadeU t. Mast. Co. Bail. Co., ib. 
 
 (/) Forms of prooeediDg,'&c.,Eeg. Gen 250. Baxendak, In re, 11 C. B., N. S. 
 
 C. P. Hil. Term, 18 Vict., 15 C. B. 473. 787 ; 12 ib. 758. 
 
 (m) Bmcendale t. Gt. Western Bail. Co., (o) Baxendale v. If^orth Devon Bail. 
 
 5 C. B., N. S. 354 ; 28 Law J., C. P. 69. Co., 3 Q. B., N. S. 324. See 31 & 32 
 
 (m) Mofriott t. Land. & S.-W. Bail. Vict. o'. 119, s. 16, ante, p. 492. ' 
 
SECT. 3.] INJUNCTION UNDEU RAILWAY AND CANAL ACT. 515 
 
 Company to collect and deliver parcels for him, pay more than he 
 ought to pay for the transit on the railway, it is a case of undue 
 prejudice against the person not wanting the accommodation. The 
 company have no right to make a charge nominally for carriage 
 upon the railway, which is in reality for that and something else, 
 and so impose upon a portion of the public services which they do 
 not desire to avail themselves of {p). So if a number of tradesmen 
 in a country town rec[uest a railway company to deliver all goods 
 addressed to them to a local carrier for distribution by him, the 
 company cannot, in order to compete with that carrier, under the 
 pretence of requiring a special order as to each package, in effect 
 cause the delivery by such carrier to be so delayed as to become 
 impracticable (g'). Nor can a railway company exclude carriers' 
 vans from the delivery of goods at a station after a certain hour, 
 if they admit vans, with goods collected from their own receiving 
 houses, after that hour (r). 
 
 In execution of the powers conferred on them by this statute, 
 the courts will issue writs of injunction, enjoining railway companies 
 proved to have given an undue preference to one person or set of 
 persons over another in respect of the conveyance of particular 
 classes or descriptions of commodities,- to desist from giving such 
 undue preference (s). But the operation of the statute is confined 
 to undue preferences given to one person or class of persons over 
 another in the traffic along the same railway or canal (<), and 
 travelling between the same places, and not to superior advantages 
 which may be given to one town over another town on the same 
 line of railway (ii). And it has been held that the statute is not 
 contravened by a railway company carrying at a lower rate, in 
 consideration of a guarantee of large quantities, and full traia-loads 
 at regular periods, provided the real object of the railway company 
 be to obtain thereby a greater remunerative profit by the diminished 
 cost of the carriage, although the effect may be to exclude from the 
 lower rate those persons who cannot give such a guarantee {x). 
 
 Before the court wUl put the powers of the Eailway and Canal 
 Traf&c Act in motion, as regards the granting of an injunction, the 
 court must in general be satisfied that some substantial injury or 
 inconvenience is sustained by the public by the act complained of, 
 
 ( b) Cockburn, C.J., Gorton v. Gt. 162. Bansome t. East. Co. Sail. Co., ib. 
 
 Western Mail. Co., 50. B., N. S. 678. 166; 8 C. B., N. S. 709. Cooper t. 
 
 Baxendale t. Gt. Western Hail. Co., 16 ib. ' Lond. &S.-W. Rail. Co., 27 Law J., C. P. 
 
 137 ; 33 Law J., C. P. 197. See 31 & 32 324. 
 
 Vict. c. 119, s. it, ante, p. 493. ■ - («) Bennett v. Manch. Shef. <fc Idnc. 
 
 (q) Parkinson v. Ot. Western Rwy., L. Rail: Co., 6 0. B., N. S. 715. 
 
 E. 6 C. P. 554. (**) Jo'"^ v. East. Co. Rail. Co., 3 C. B., 
 
 (r) Palmer r. Lond., Brighton, <fc South N. S. 718. 
 
 Coast Rwy., L. B.., 6 0. P. 195. (a?) Nicholson t. Qt. Western Rail. Co., 
 
 (sl,Sam^ V. Cockermoulh, <bc.. Rail. 5 0. B., N. S. 441. Stride v. Swansea 
 
 Co., 3 C, B., N. S. 693 ; 27 Law J., C P. Canal Co., 31 Law J., C. P. 240. 
 
 P ii 2 
 
516 rUTIES OF COMMON CAEEIERS. [CHAP. X. 
 
 and that the complaint is bond fide made on behalf of the public (y). 
 And it has been held that the exercise of this special jurisdiction 
 being subject to no review, and depending in each, instance upon 
 the special facts of the case, cases previously decided under it are 
 not binding on the court in the same way that precedents in law 
 are binding (a). 
 
 {y) Painter v. Land. <fc Br. Sail. Co., 2 (a) Pohmer t. Lond. & SmitK-We^. JRail. 
 
 C. B., N. S. 702. He Caterham Sail. Co., Co., L. E., 1 C. P. 589 ; diss. Willes and 
 1 C. B., N. S. 410. Keating, JJ. 
 
517 
 
 CHAPTER XI. 
 
 OF WEONGFUL DISTRESS— DISTEESS FOE EENT— DISTEESS 
 DAMAGE FEASANT. 
 
 Section I. — Of urUawfvl and eoccessive 
 distresses. — ^Distress for rent in arrear 
 — Of conditions precedent to the right 
 to distrain— Distress for rent payable 
 in adranoe — Distress after the termi- 
 nation of the term of hiring — Distress 
 hy agents, joint-tenants, tenants-in- 
 common, &c. — Agreements not to dis- 
 train — Acceptance of bill or note by 
 way of payment— Tender before dis- 
 tress — Time, mode, and place of dis- 
 training—Things distrainable and not 
 distrainable — Distress of growing crops 
 — Mortgaged chattels and things in 
 the custody of the law — Things dis- 
 trainable under a licence to distrain — 
 Things fraudulently removed — What 
 amounts to a distress — Abuse of the 
 right to distrain rendering persons 
 trespassers ab initio — Distress when 
 no rent in arrear — Excessire distresses 
 — Distress for more rent than due — 
 Bepeated distresses — Impounding — 
 
 Pound-breach — Abandonment of dis- 
 tress — Statutory power of sale — Tender 
 of rent before sale — Notice of distress 
 — Appraisement and sale— Costs and 
 expenses — Non-compliance with the 
 statutes authorizing the sale — Keeping 
 the distress without selling — Indemni- 
 fication of bailiffs. 
 
 Section II. — Of distress damage feasant. 
 — Seizure and impounding of animals 
 damage feasant — Trespass on unfenced 
 land — "What things may be distrained 
 damage feasant — Distress by railway 
 companies of locomotive engines dam- 
 age feasant — Tender of amends — Sale 
 of impounded animals — Liabilities of 
 pound-teepers. 
 
 Section III. — JRemedies for unlawful and 
 eoccessive distresses. — Replevin of things 
 distrained — Actions — Parties, plead- 
 ings, defences, and evidence — Damages 
 recoverable. 
 
 SECTION I. 
 
 OF UNLAWFUL AND EXCESSIVE DISTRESS. 
 
 Distress for rent in arrear. — By the common law, landlords to 
 whom rent is due, and who are clothed with the immediate reversion 
 of the premises out of which the rent issues, have the power of 
 entering in person, or by deputy, upon the demised premises (a), 
 and seizing the moveables and personal property thereon, with 
 certain exceptions, and holding them as a pledge for the payment 
 of the rent, and they have now by statute the power of selling the 
 things distrained. This remedy by distress is said to have come to 
 
 (a) See Sdhj t. Greavet, L. R., 3 0. P. 594. 
 
518 -WKONGFUL DISTRESS. [CHAP. XI. 
 
 US from the cMl law, where the land farmed out to the tenant was 
 hypothecated, or pledged in his hands to answer the rent agreed to 
 be paid, the whole profits arising from the soil beiag liable to the 
 lord's seizure (6). 
 
 It is essential to the lawful exercise of the power of distress, 
 that there be a tenancy (c) for a term, or at wiU, at an ascertained 
 rent {d), and that the distrainor be the person entitled to the rever- 
 sion of the premises distrained upon, on the determination of the 
 existing tenancy (e). "If he has made a lease without having any 
 right or title to grant a lease, or if, after the making of the lease, he 
 has sold and transferred his estate or interest to some third party (/), 
 or being himself only a lessee, he has assigned his lease, or if, after 
 granting an under-lease, he has forfeited his estate by some breach 
 of covenant or otherwise, and the superior landlord has entered, 
 and the tenant has attorned to the laiter, he has no right or power 
 to distrain {g). It has been held, that a tenant from year to year 
 underletting from year to year, has a reversion which enables him 
 'to distrain for rent reserved upon Such tinder-lease " (/i). However, 
 although the distrainor be riot entitled to the imlnediaie reversion, 
 the distrainee may be estopped from denying that he is entitled 
 to it (*). 
 
 If the lease has been put an end to by a surrender of the term, 
 or by a notice to quit, and the tenant, notwithstanding the termina- 
 tion of the demise, continues to hold, with the permission of the. 
 landlord, as tenant-at-wiU, or adversely and against the wiU of the 
 lord as a wrong-doer, the lessor has no power at commoii law to 
 distrain the goods and chattels of the tenant for rent in respect of 
 such occupation {j). Neither can he distrain, except under the 
 statute of Anne {post, p. 522), for rent that accrued due before the 
 determination of the lease. But any slight evidence of a renewal 
 of the tenancy, and of an agreement to hold upon the former 
 terms, would be suf&cient to justify the landlord in distraining for 
 the old rent (k). 
 
 If the tenant becomes bankrupt or files a petition for liquida- 
 tion by arrangement, the landlord or other person to whom any 
 
 (5) GiIbertonRents,5;onDistresses,2. 64; 5 Bing. 24 ; 5 M. & Ey. 157, 162. 
 
 (c) See Clowes V. Hughes, L. R., 5 Exch. Smith v. MapWback, 1 T. R. 441. 
 160, in which case the distress -n-as made {g) Bwtne v. Michardsm, 4 Taunt. 720. 
 
 by a mortgagee upon the mortgaged Sopcroft t. Keys, 2 M. & Sc. 760 ; 9 Bing. 
 
 lands under ah agreement contained in 613. Langford v. Selmes, 3 K. & J. 229. 
 the mortgage deed. (A; Curtis v. Wheeler, M. & M. 493. 
 
 {d) Anderson y. Mid. Rail. Co., 30 (i) iforfomv. Foods, L.E., 3 Q.B. 658 ; 
 
 .Law J., Q. B. 94. ffowe- T. Scairrott, 28 4 ib. 293 ; 28 Law J., Q. B. 81. 
 Law J., Exch. 325. JoUy t. Arbuthnot, (j) Jmner v. Clegg, 1 M. & Eob. 213. 
 
 28 Law J., Ch. 547. -Addison on Con- Alford r. VichenJ, ICa*. & Marsh. 283; 
 
 .^tracts, p. 316, 6th ed.' Pheney. Popplewea, 12 0. B., N. S. 334; 
 
 (e) 8 & 9 Vict, c, 166, s. 9. 31 Law J., C. P. 235. 
 
 (/) Parmenter v. Webber, 8 Taimt. 593; (i) Zouch v. WUUngaXe, 1 H. Bl. 311. 
 
 2 Moore, 656. Preece v. Corne, 2 M. * P. Beavim \, Dekihayi 1 H. Bl. 8. 
 
SECT. l.J WHEN NO ASCEETAINED RENT. 619 
 
 rent is due may still distrain, but if the distress be levied after the 
 commencement of the bankruptcy, it is not available for more than one 
 year's rent accrued due prior to the date of the order of adjudication (Z). 
 A fortiori therefore if the trustee in bankruptcy declines to take 
 the lease, the lessor is not, in case the bankrupt tenant contimies 
 to hold the property, deprived by the bankruptcy of his right to 
 distrain (m). Nor is he so deprived, if the creditors determine to 
 accept a composition under s. 126 and the bankrupt tenant remains 
 in possession (n). If a lessee, having granted an under-lease, 
 becomes bankrupt, such bankrupt lessee is not deprived by the 
 bankruptcy of his right to distrain, unless the assignees have taken 
 to the lease and discharged the bankrupt from the rent payable to 
 the superior landlord (o). The power of distress is always subser- 
 vient to prerogative process issued by the crown, such as an extent ; 
 and the sheriff may consequently take goods that have been 
 distrained out of the hands of the landlord or his bailifp, and sell 
 them for the benefit of the crown (p). A landlord, moreover, 
 cannot distrain twice for the same rent, imless the distress has been 
 withdrawn at the instance or request of the tenant, or unless there 
 has been some mistake as to the value of the things taken. It 
 is vexatious and actionable in a landlord to make repeated dis- 
 tresses unnecessarily (q). 
 
 When there is no ceHain ascertained rent there is no right to dis- 
 train. — If lands and houses have been demised together at one 
 entire rent, and the lease is void as to part of the subject-matter of 
 the demise and good for the residue, the lessor cannot distrain for 
 the rent, as there is no distinct and ascertained rent fixed in respect 
 of the part for which the lease is good (r). Where there was a 
 lease of one hundred acres of land at an annual rent of 79Z., and 
 eight of these acres were in the possession of another tenant under 
 a prior demise, it was held that the lessor could not distrain for any 
 part of the rent, as it was reserved in respect of the whole one 
 hundred acres, and the rent was entire and unapportionable (s). 
 But where a new agreement is come to providing for a specified 
 reduction of rent, or for an ascertained and settled compensation in 
 respect of the part held under the prior demise, such agreement 
 
 (Z) 32 & 33 Viot. 0. 71, s. 8i. Mx Sittings after Hil. Tefm, 1850. But see 
 
 ■parte Birm. <fc Staff. Qas Light Co., L. K., 32 & 33 Viot. o. 7] j s. 23. 
 
 11 Eq. Ca. 615. See Re Lundy Granite {p) Rex v. Cotton, Parker, 112. And 
 
 Co., post, p. 531. see 32 & 33 Vict. o. 14, s. 31, as to a dis- 
 
 (m) Briggs v. Sowry, 8 M. & W. 729. tress at suit of the crown on property of 
 
 Nemton v. Scott, 10 M. & W. 471. PhU- bankrupt for duties, ^c, under that Act. 
 
 Ivps V. Shervill, 6 Q. B. 944; 14 Law J., (g) Bagge v. Mawbg, 8 Exch. 649. 
 
 Q.B. 144. See 32 & 33 Viot. c. 71, s. 23. Dawson v. Cropp, 1 C. B. 961. 
 
 (n) Ex por*e Birm. Gas Light Co., L. (r) Gardiner v. Williamson, 2 B. & Ad. 
 
 K., 11 Eq. Ca. 204. 
 
 339. 
 
 (o) PeskettTt. Somen, ooiam Wilde, C J., (S) Neale v. Mackenzie, 1 M. & W. 763, 
 
520 WEONGFUL DISTllESS. [CHAP. XI. 
 
 may operate as a re-demise at an ascertained rent, recoverable 
 by distress (t). 
 
 Where an oral agreement was entered into between tbe pro- 
 prietor of a marl-pit and brick-mine, and a potter and brickmaker, 
 upon the terms that the latter should pay 8d. per solid yard lor all 
 the marl that he got out of the marl-pit, and Is. 8d. per thousand 
 f9r all the bricks that he made from the brick-mine, by quarterly 
 payments at the usual quarter-days, and the brickmaker took 
 possession of the pit and mine, and dug marl and burnt bricks, and 
 made'several quarterly payments, it was held that this was a demise 
 from year to year at a rent capable of being ascertained with 
 certainty, and that the lessor, therefore, was entitled to distrain (u). 
 And where land was held upon the terms that the plaintiff should 
 not sell hay off the demised premises under a penalty of 2s. M. a 
 yard, to be recovered by distress as for rent in arrear, it was held 
 that the penalty might be treated as a rent payable in respect of 
 every sale made in breach of the agreement, that the amount due 
 was capable of being ascertained with certainty, and might be 
 recovered by distress (v). 
 
 If a tenant has entered into possession under an agreement 
 which does not operate as a present demise at a fixed rent, but 
 merely as an executory contract for a future lease afterwards to be 
 granted, and the landlord neglects to grant the lease, and the tenant 
 continues to occupy without paying any rent or making any absolute 
 and unconditional admission of any specific sum being due as rent 
 in respect of such occupation, the landlord has no right to distrain('M"). 
 But whenever there is an agreement for a tenancy at a fixed rent, 
 though it be a tenancy-at-will only (x), or whenever by payment of 
 rent, or otherwise, any tenancy at a fixed rent can be implied, the 
 landlord may distrain for all rent subsequently accruing due (y). 
 And if the tenant, after he has taken possession, " promises to pay 
 a rent certain, or settles it in account, the landlord will then have 
 a right to distrain " («). So, if a man, on being let into possession 
 under an agreement for purchase, signs an agreement admitting 
 that he is tenant at a certain rent, he may be distrained upon (a). 
 
 By the 14 & 15 Vict. c. 25, s. 1, it is provided, that where the 
 lease of any farm or lands shall determine by the death or cesser 
 of the estate of a landlord entitled for life or for some uncertain 
 interest, instead of a claim to emblements, the tenant shall continue 
 
 (J) Watson T. Waud, 8 Bxeh. 335. (y) M'Leiah v. Tate, Cowp. 783. 
 
 {«) Daniel v. Grade, 8 Q. B. 145. (z) Kniyht y. Bennett, 11 Moore, 222 ; 
 
 {v) Pollitt V. Foreit, 11 Q. B. 949 ; 16 3 Bing. 361. Cox v. Bent, 2 M. & P. 
 
 Law J., Q, B. 424. 281 ; 5 Bing. 185. 
 
 (w) Hegan v. Johnson, 2 Taunt. 148. (.a) Yeoman v. ElMson, L. E., 2 C. P. 
 
 {x) Anderson t. Mid. Rail. Co., 30 Law 681. See Morton t. Woods, ante, p. 5ll3. 
 J., Q. B. 96. 
 
SECT. 1.] RENT PAYABLE IN ADVANCE. o21 
 
 to hold till the expiration of the then current year, and shall then 
 quit as if his lease had expired by effluxion of time, and the suc- 
 ceeding landlord shall be entitled " to recover and receive of the 
 tenant " a fair proportion of the rent for the period since the lessor's 
 death. The above act applies to all tenancies in respect of which 
 there exists a valid claim to emblements, and confers a right to 
 distrain for the rent as well as to recover it by action (&). 
 
 Of conditions precedent to the right to distrain. — The right to 
 distrain may be made conditional, or may be postponed by the 
 contract of the parties (c). Where a lessee agree^ to take, and 
 the lessor to let, a house and premises at a yearly rent, payable 
 quarterly, and the lessor agreed to complete the house, and fix 
 a bresummer in the window, and allow the lessee 15^. towards 
 erecting an oven, and the lessee took possession and built the 
 oven, but the lessor never completed the house nor fixed the 
 bresummer, and the lessee refused payment of the rent, whereupon 
 the lessor distrained, it was held that the distress was illegal, as 
 the condition upon which the rent was to become due remained 
 imaccomplished (d). And where an oral agreement was entered 
 into for the letting and hiring of a house and furniture at an annual 
 rent, payable quarterly, the house to be furnished completely, in a 
 manner suitable to a ladies' school, and the lessee took possession, 
 it was held that the furnishing of the house by the lessor in the 
 manner agreed upon was a condition precedent to his right to dis- 
 train for the rent (e). Whenever a covenant or promise to pay rent 
 is conditional and dependent, and the lessor is ready and willing 
 to fulfil the condition on his part, but the lessee prevents him, the 
 lessor wiU have his power of distress. 
 
 Distress for rent payable in advance (/) — Rent lohen due — 
 Several demises. — Eent may be made payable in advance, so as to 
 entitle the landlord to distrain for it at the commencement instead 
 of at the end of each quarter {g). When there is a reservation of 
 an annual rent, or a covenant, or agreement by a tenant to pay so 
 much a-year, a stipulation for the determination of the tenancy at 
 the expiration of any one quarter of a year, by a six or three 
 months' notice, will not raise a presumption that the rent was to 
 be paid quarterly Qi). Where a landlord agreed to let a house at 
 a yearly rent of 50^., and likewise the stable and loft at a further 
 rental of 25?. per annum, to be paid on the usual quarter-days, it 
 
 (6) Haines v. Welsh, L. E., 4 C. P. 91. (e) Mechden v. WaUace, 7 Ad. & E. 
 
 See 33 & 34 Vict. c. 35, " The Apportion- 54, n. 
 
 ment Act, 1870." {/) See De Nkholls v. Saunders, post, 
 
 (c) Giles V. Spencer, 3 C. B., N. S. 253; p. 524. 
 
 26 Law J., 0. P. 237. (jr) Lee v. Smith, 9 Exch. 665. 
 
 Ad) Regna/rt t. Pm-ter, 5 M. & P. (A) Coife«« v. OmHms', 10 Q. B. 785; IG 
 
 370. Law J., Q. B. 390. 
 
522 WKONGFUL DISTKESS. [CHAP. XI. 
 
 ■was held that this was a demise of two different sets of premises at 
 separate rents, payable at different periods ; that the 50^. rent was 
 paryable yearly, and the 25?. rent payable quarterly (i). "Where a 
 contract was entered into for the letting and hiring of a house for a 
 year certain, at a rent payable quarterly, "or half-quarterly if 
 required," and the tenant entered into possessiouj and paid his rent 
 quarterly for the first year of the tenancy, at the expiration of 
 which period the lessor, without any previous demand or notice to 
 the tenant, distrained for half a quarter's rent then alleged to be 
 due, it was held that the lessor had no right so to do without 
 giving a previous intimation and notice to the tenant of his election 
 to take the rent half- quarterly (/). 
 
 If the lessor distrains before the rent has become due, the 
 tenant may resist the entry and seizure by force, and after a seizure 
 has been made, he may rescue his goods at any time before they 
 have been impounded; but when once the goods have been im- 
 pounded, they are in the custody of the law, and the tenant cannot 
 then break the pound and retake them (k). 
 
 Distress after the termination of the term of hiring. — ^At common 
 law the landlord could not, it seems, have distrained after the 
 expiration of the term for rent that accrued due before the termi- 
 nation thereof, as his reversion was then gone, the entire estate 
 being revested in him in possession (I), but now, by 8 Anne, c. 14, 
 ss. 6, 7, it is enacted, that it shall be lawful for him to distrain for 
 arrears of rent due upon any lease ended or determined after the 
 determination of the lease, in the same manner as he might have 
 done if such lease had not been ended or determined; provided such 
 distress be made within six calendar months after the determina- 
 tion of the lease, and during the continuance of the landlord's title 
 or interest, and during the possession of the tenant from whom such 
 arrears became due. Primd facie, therefore, the executors or other 
 personal representatives of a tenant could not be distrained upon. 
 But the Court of Queen's Bench has held a distress to be good 
 during the possession of the executors, when the tenancy was not 
 determined by the death of the tenant (m). Where, however, there 
 is no possession by any one who can be said to be the representa- 
 tive of the tenant, and the tenancy is determined by the death of 
 the tenant, the statute of Anne does not apply, and there is no 
 power to distrain (n). Where a tenant went away, leaving behind 
 
 (i) Coomber v. Howard, 1 C. B. 440. {I) WiUiams v. SHven, 9 Q. B. 14 ; 15 
 
 (j) MaUam v. Arden, 3 M. & Sc. 795 ; Law J., Q. B. 321. 
 10 Bing. 299. (m) Braithwaite v. Goohey, 1 H. Bl. 
 
 (h) 1 Inst. 47b. 161a; Gilbert on Dis- 465. 
 treBS, 61. . (n) Turner v. Barnes, 31 Law J., Q. B. 
 
 170. See 33 & 34 Vict. c. 36. 
 
SECT. l.J BY AGENTS, JOINT-TENANTS, ETC. 523 
 
 him a cow and a few pigs, without asking permission to leave 
 them, or saying when he was going to take them away, and the 
 succeeding tenant entered and took possession, it was held that the 
 lessor had no right to distrain the things so left, as the tenant was 
 not then in the possession and occupation of the premises (o). The 
 customary right of the tenant to an away-going crop always 
 operates as a prolongation of the term as to the land on which the 
 crop grows for the period allowed by the custom for getting in and 
 gathering the crop. All the rights and properties belonging to the 
 original contract are continued during the period in question, and 
 among them the landlord's right to distrain. Therefore, where a 
 part of the tenant's corn remained in a barn on the demised pre- 
 mises beyond the period of six calendar months, but within the term 
 allowed by custom for the outgoing tenant to get in and dispose of 
 his crop, it was held that the corn might be distrained by the land- 
 lord (p). 
 
 If, by the tacit consent of the landlord and tenant, the contract 
 between them continues beyond the time for which they originally 
 contracted, all the rights and properties belonging to the original 
 contract are also continued, and among them the landlord's right to 
 distrain. It has often been determined that if there be a lease, and 
 after the determination of it, the tenant holds over, with the con- 
 sent of the landlord, he must hold upon the terms, and is liable to 
 aU the conditioiis and covenants, of the lease (§■). If after the 
 determination of a tenancy by the expiration of a notice to quit the 
 tenant holds over, and the landlord distrains for rent, the landlord 
 thereby waives the notice, and af&rms and continues the tenancy (r). 
 
 Distress hy agents — Joint tenants — Tenants in common, &c. — A 
 mere receiver of rents (not being a receiver appointed by the Court 
 of Chancery) has no power to distrain, although he may be autho- 
 rized to collect and receive the rents for his own benefit (s). And 
 when an agent or bailiff receives a special authority from the lessor 
 to levy a distress upon the demised premises, the authority should 
 be given and acted upon in the name of the lessor or reversioner. 
 But if the agent distrains in his own name, and gives a notice in 
 writing, stating the rent to be due to himself, he may, nevertheless, 
 justify in the name and as the bailiff of the lessor. A person bene- 
 ficially interested in the demised premises may use the name of the 
 owner of the legal estate to levy a distress. The cestui que trust, 
 therefore, may distrain in the name of the trustee, and a mortgagor. 
 
 (o) Taylerson T. Peters, 7 Ad. & E. (q) Beafan t. Delahay, 1 H. Bl. 9 ; 
 
 110 ; 2 N. & P. 622. ante, p. 518. 
 
 (») Beomcm v. Delahay, 1 H. Bl. 9. (r) Zouch v. WilUngaU, 1 H. Bl. 311. 
 
 lewL V Hwrris, ib. 7, n. (a). Nuttall v. (s) Wcurd v. Shew, 2 M. & SC. 756 ; 9 
 
 StazmUm, 4 B. & C. 51. Bing. 608. 
 
524 WEONGFUL DISTRESS. [OHAP. XI. 
 
 iu certain cases, in the name of the mortgagee (t). A receiver 
 appointed by the Court of Chancery has a power of distress, and 
 need not previously apply to the Court for a particular order for 
 that purpose (w). One joint-owner or joint-reversioner may dis- 
 train alone, but he must, it seems, avow and justify the taking of 
 the distress in his own right, and as bailiff to the other {v). He 
 may also sign a warrant of distress, and appoint a bailiff to distrain 
 for rent due to all, unless the others expressly dissent {w). The 
 same rule prevails in the case of co-parceners and co-heirs in gavel- 
 kind, any one of whom may avow and justify the distress in his own 
 right, and make conusance as the bailiff of the others without aver- 
 ring or showing any express authority from them to distrain (x). 
 If one of several joint-tenants of the reversion to which the rent is 
 incident conveys away all his estate and interest in the demised 
 premises, the right to distrain for the rent is extinguished, for there 
 can be no apportionment of the rent by the severance of the rever- 
 sion iy). The payment of rent in advance to a landlord mortgagor,' 
 unless by agreement the tenant is bound to do it, is not valid as 
 against mortgagees, who may consequently distrain for it (z). 
 
 Tenants in common who have several estates, and are severally 
 entitled to the rent and the reversion of the demised premises^ 
 should make several distresses. They may, of course, authorize a 
 bailiff to distrain on behalf of aU, or One tenant in common may 
 distrain on his own account, and as the bailiff and agent of others, 
 but they must avow and justify the taking of the distress separately 
 in respect of their several shares {a). And one tenant in common 
 may distrain for his own share of the rent, although the rent has 
 been reserved in one sum payable to all generally, and not in 
 several sums payable to each ; and therefore, where a lessee hold- 
 ing under two tenants in common, at a yearly rent of 18/!., payable 
 quarterly, received notice from one of them to pay to him a moiety of 
 the rent as soon as it became due, and the lessee, notwithstanding such 
 notice, paid the whole rent to the other tenant in common, it was 
 held that the one who had thus given the notice might distrain 
 upon the land for his moiety of the rent (6). Where fifty acres of 
 arable land were demised by four persons (whose original title did 
 not appear) at one entire rent of 94^. per annum, to be divided and 
 paid to the four lessors separately in equal portions, it was held 
 
 (e) Trent t. Hunt, 9 Eicli. 14 ; 22 Law (x) Leigh v. Shepherd, 5 Moore, 297 ; 
 
 J.. Kxch. 320. Sndl v. Finch, 32 Law J., 2 B. & B. 465. 
 
 C. P. 177 ; 13 C. B., N. S. 651. {y) Staveley v. AUcoch, 16 Q. B. 636 ; 
 
 (it) Brandon v. Brandon. 5 Madd, 473. 20 Law J., Q. B. 321. 
 
 Bennett v. Robins, 5 C. & P. 379. {z) De NichoUs t. Saunders, L. E., 5 
 
 (v) Pvllen V. Palmer, 5 Mod. 73, 150 ; C. P. 589. 
 
 3 Salk. 207. (a) Litt. sec. 314—317. 
 
 (w) Robinson v. Hoffman, 1 M. & P. (b) Harrison t. Barnhy, 5 T. JR. 246. 
 474 ; 4 Bing. 562 ; 3 C. & P. 234. 
 
SECT. 1.] TIME, MODE, AND PLA.CE OF DISTRESS. 525 
 
 that as between themselves and the lessee they must be taken to 
 be tenants in common of the reversion, and that one of the four 
 was entitled to distrain for a fourth part of the rent independently 
 of the rest (c). 
 
 Distress hy executors and administrators. — By 3 & 4 Wm. 4, 
 c. 42, ss. 37, 38, the executors and administrators of a lessor or 
 landlord may distrain upon lands demised for any term or at wiU 
 for arrearages of rent due to such lessor or landlord in his lifetime. 
 
 Agreements not to distrain. — The right to distrain may be waived, 
 abandoned, or postponed by the express contract or agreement of 
 the landlord, for it is not an inseparable incident to a rent service (c^). 
 If, therefore, a landlord has agreed with the owner of cattle not to 
 distrain them if they are put into a particular close, and they are 
 afterwards distrained there by the landlord, in violation of his 
 agreement, an action for a trespass in taking the cattle is main- 
 tainable against him (e). 
 
 Acceptance of a till or note hy way of payment. — A landlord is 
 not deprived of his right to distrain by taking a bill, or note, or 
 other security for the rent, unless it be proved that the landlord, at 
 the -time he accepted the security, bound himself not to distrain (/), 
 or unless it be proved that the note was paid at maturity {g). If 
 the landlord's receiver or bailiff relinquishes a distress on receiving 
 a bin or note for the rent from the tenant, and pays over the 
 amount of the note to the landlord, and the note is subsequently 
 dishonoured, the landlord may return the money to the bailiff or 
 treat it as an advance or loan from him, and distrain again for the 
 unpaid rent (A). 
 
 Tender of rent before distress renders the distress wrongful ah 
 initio. If, therefore, after a broker has received a warrant of 
 distress, but, before it is executed, the rent is tendered, the right to 
 distrain is gone {i). 
 
 Time, mode, and place of distraining. — The tenant has the 
 whole day on which the rent becomes due to pay such rent, and a 
 distress therefore cannot be made until the day after the day 
 appointed for the payment of the rent {k). A landlord or his 
 bailiff cannot lawfully break open gates, or break down inclosures, 
 or force open the outer door of any dwelling-house or building (I), 
 
 (c) Whiaey v. HoheHs, McL. & Y. (ff) Harris v. Shipway, Bull, N. P. 
 107. 182a. 
 
 (d) Giles V. Spencer, 3 C. B., N. S. 244; {h) Parrott v. Anderson, 7 Exch. 93 ; 21 
 26 Law J., C. P. 237. Law J-. ^^ch, 291. 
 
 (e) Borsford v. Webster, 1 C. M. & K. (») Bennett r. Bayes, 5 H. & N. 391 ; 
 699. Welsh y. Rose, 6 Bing. 638 ; 4 M. 29 Law J., Exch. 224. 
 
 & p. 490. {k) 21 Hen. 6, 40. Duppa v. Mmio, 1 
 
 (/) Davis V. Gyde, 2 Ad. & E. 626. Saund. 287. 
 
 ^e^BramweU v. Eglinton, 33 Law J., Q. B. (I) Brown v. Glenn, 16 Q. B. 254 ; 20 
 
 130. Law J., Q. B. 205. 
 
526 WRONGFUL DISTRESS. [CHAP. XI. 
 
 or even enter hj a window which is shut but not fastened (m), in 
 order to make a distress, but he may enter loj a door which is shut 
 but not fastened, for that is the ordinary method of entry, and a 
 person who leaves his door unfastened implies a licence to any one 
 who has business to enter the premises, and so he may draw a 
 staple or undo fastenings which are ordinarily opened from the 
 outside of the house (n), or perhaps enter by an open window (o); 
 A distress, moreover, cannot be made after sunset, or before sun- 
 rise (p) ; nor upon land which does not form part or parcel of the 
 demise, and from which the rent reserved does not issue, unless the 
 goods of the tenant have been removed thereto from the demised 
 premises within sight of the lord coming to distrain, or unless they 
 have been fraudulently removed thereto by the tenant to avoid the 
 distress. If, therefore, a tenant enjoys an easement over, or a right 
 to use, the land of a third person, and has, in the hondfide exercise 
 of such right, placed his goods and chattels on the land of such 
 third person, the lessor has no right to distrain them there. Thus, 
 where a wharf on the banks of a tidal river was demised to a tenant 
 at an annual rent, with a right to use part of the bed of the river,' 
 between high and low-water mark, as a place of deposit for boats 
 and barges resorting to the wharf, it was held that the lessor of 
 the wharf had no right to distrain the barges of the tenant lying 
 on such land and bed of the river alongside the wharf, although 
 they were attached to the wharf by head and stern-ropes, inas- 
 much as the land on which the barges were lying belonged to the 
 crown, and had never been demised to the tenant {q). For the 
 same reason a landlord could not, by the common law, distrain the' 
 beasts and cattle of a tenant feeding upon a common, and which 
 had been placed there by the tenant in the hond fide exercise of a 
 right of common vested in him in his own right, or as appurtenant 
 to the land demised to him by the lessor. But this has been 
 altered by 11 Geo. 2, c. 19, s. 8, which empowers landlords to take 
 and seize, as a distress for arrears of rent, any cattle or stock of 
 their tenants feeding or depasturing upon any common appendsint 
 or appurtenant. 
 
 Things not distrainaUe.- — Tenants' fixtures annexed to the free- 
 hold by nails and permanent fastenings, such as furnaces, chimney- 
 pieces, kitchen-ranges; stoves, coppers, grates, blinds, &o., are not 
 distrai^able, as they cannot be removed and restored without 
 sustaining some injury (r). But if they are attached to the 
 
 (to) Wash V. Imco^, L. R.. 2 Q. B. 590. (q) Buszard v. Ca^d, 8 B. & C. 141 j 3 
 
 (n) Byan t, Shilqsok, 7 Exoh. 72 ; 21 M. & P. 494 ; 6 Bing. 160. ^ 
 
 Law J., Exch. 55. (r) Co. Litt. 47b. Pitt \. Shew, i. 
 
 (o) Kixon T. Freeman, 5 H. & N. 647. B. & Aid. 207. Barby v. Harris, 1 
 
 {p) Co. Liu. 142a ; Crilbert on Dis- Q. B. 898. DaUon t. Whitten, 3 Q. B 
 
 tress, 50. Tutton t. Darlfe, 5 H. & N. 961. 
 
 654 ; 29 Law J., Exch. 271. 
 
SECT. 1.] CHATTELS NOT DISTEAINABLE. 527 
 
 freehold by bolts and screws, so as to be moveable, they may be 
 distrained and taken. Therefore cotton-spinning machines fixed to 
 a wooden iloor by screws, or soldered to a stone flooring, but 
 fastened so as to be readily removeable, are distrainable (s). A 
 millstone in a miU, and an anvil in a smith's shop, however, 
 cannot be distrained for rent, although the anvil be removed out of 
 the stock, or the millstone out of the socket to be picked, for the 
 anvil is accounted part of the forge, and the millstone part of the 
 miU, though when taken it is not actually affixed to the freehold (t). 
 Tramplates and sleepers of a railway merely laid upon the ground, 
 although they have become indented in the soil by user, are 
 distrainable (u) ; but if they have been packed in ballast, so that 
 they cannot be removed without making holes in the ballast, they 
 are not (v). 
 
 By 51 Hen. 3, stat. 4, it is provided that no man of religion, 
 nor other person, shall be distrained by his beasts that profit his 
 land, nor by his sheep, by the king's or other bailiffs, so long as 
 they can find other distress, or other chattels sufticient for the 
 le's'ying of the distress. Beasts of the plough are by common law 
 exempt from distress ; but to render other animals exempt on the 
 ground that they profit the land, within the above statute, it is not 
 enough to show that they are occasionally used in manuring the 
 soil : it mvist be proved that they have been broken to harness, and 
 are regularly employed in ploughing, harrowing, or drawing carts 
 or waggons iipon the farm, in the ordinary cultivation of the land. 
 Heifers and steers, therefore, and young colts not broken to harness, 
 are not " beasts that profit the land " within the meaning of the 
 statute- Sheep, also, are exempt from distress at common law, 
 independently of the statute, so long as there are other distrainable 
 chattels and animals, not being beasts of the plough, sufficient to 
 satisfy the rent (w). 
 
 Implements of husbandry are also exempt from distress, and so 
 are the tools- and instruments of a man's trade or profession, such 
 as the books of the scholar, the axe of the carpenter, the anvil of 
 the smith, the stocking-loom of the weaver, the threshing-machine 
 of the farmer, and the spade and axe of the labourer, so long as 
 they are in actual use, or there are other goods on the demised 
 premises sufficient to satisfy the' rent without them (x). Wearing 
 apparel, also, in actual use about the person of the wearer, is not 
 
 (s) ffeUaweU v. Eastwood, 6 Exch. 309; ,(«<) Ke^ v. Priest, 4 H. & N, 236 ; 2S 
 
 20 Law J., Exoh. 155. See Longhottom -Law J., Exch. 157. 
 
 V. Berry, L. R., 5 Q. B.- 123. (») Simpson y. Ewrtopp, Willes, 512; 
 
 {tj Bro. Abr. Distress, pi. 23. Wood v. Olarhe, X Or. & J. 484. Hartley 
 
 (u) Beaufort (Dit/ce of )v. Sates, 3 DeG. t. Pococh, 11 M. & W. 740; Co. Litt. 
 
 F. & J. 381 ; 31 L. J., Ch. 481. 47a. Nwi-ffatt v. JSTias, 28 Law J., Q. B. 
 
 (v) Turner v. Cameron, L. K., 5 Q. B. 143. 
 306. 
 
528 WRONGFUL DISTRESS. [GHAP. XI. 
 
 distrainable, whether it be the wearing apparel of the tenant him- 
 self or of a guest in his house {y). 
 
 Perishable articles, growing crops, fruit, money, &c., have always 
 been considered to be unfit to be taken and detained as a pledge for 
 rent, inasmuch as they are liable to rapid deterioration, and cannot 
 be restored to the tenant in as good plight as they were in when 
 taken, within the period allowed by law for their redemption. 
 Therefore fruit, milk, the flesh of animals recently slaughtered (z), 
 and other things of a perishable nature, could not be distrained ; 
 but as the 2 W. & M. c. 5, s. 3, directs the distress to be sold 
 within five days unless replevied, perhaps the ancient rule of the 
 common law with respect to the perishable nature of the distress 
 no longer extends, in the case of a distress for rent, to anything 
 which is not liable to deterioration within the period prescribed by 
 the statute for the sale of it. As the things distrained were 
 regarded at common law in the light of a pledge, to be returned to 
 the tenant when the rent was paid, it was held that money could 
 not be distrained unless in a bag, because the identical pieces could 
 not be known and restored ; and that grain or flour could not be 
 taken out of a sack, or hay from a barn, because it could not well 
 be ascertained whether the identical quantity taken had been 
 returned. Corn in the sheaf was not distrainable unless found in 
 a cart. Growing corn, grass, fruits, hops, roots, and growing 
 produce, also, were not distrainable, as the crop was attached to the 
 freehold, and could not be taken up and returned to the tenant, in 
 case he chose to redeem the pledge, in the same state and condition 
 as it was in when removed (a). But the 2 W. & M. sess. 1, c. 5, 
 s. 3, and 11 Geo. 2, c. 19, ss. 8 and 9, now enable the lessor to 
 distrain loose corn and corn in the sheaf, straw and hay, growing 
 corn, grass, hops, roots, fruit, pulse, and growing produce generally. 
 These Acts, however, do not extend to trees, shrubs, and plants 
 growing in nursery gardens, nor to money (&). 
 
 Property of strangers on the demised premises in their own 
 possession. — The landlord has no right to distrain the carriage and 
 horses of a morning visitor standing at the door of the tenant's 
 dwelling house, or under a shed upon the demised premises ; or the 
 horse of a stranger who has called at the house on business, and 
 tied up the animal to the gate or the stable-door. He cannot 
 distrain a horse which has brought corn to be ground at the tenant's 
 mill, and has been fastened to the mill door whilst the corn was 
 being ground to be taken back, nor a horse which has brought yarn 
 to a private weighing machine belonging to the tenant to be vsreighed, 
 
 (y) Bac. Abr. Inns, B. (a) 1 Koll. Abr. 667 s Bradby on Dis- 
 
 (z) Morley t. Pincombe, 2 Exch. 101. tress, 213 ; Gilbert on Distress, 32. 
 
 (5) Clark v. Gaskarth, 2 Moore, 491. 
 
SECT. 1.] PROPERTY OE STRANGERS ON DEMISED PREMISES. 529 
 
 and has been placed in a stable on the demised premises whilst the 
 ■weighing was accomplished ; the horse in each of these cases being 
 in the possession and use, and under the control, of the owner or 
 his servant (c.) l^either can the landlord distrain the boat or barge 
 of a third person lying in a private dock or private canal, or along- 
 side a wharf upon the demised premises, provided such boat or 
 barge is in the hands and under the care of the master and crew of 
 the owner, and is at the time employed in the owner's business, 
 and is in his use and possession, and not in the use and possession 
 nor under the control of the tenant ; but if it is abandoned and 
 left upon the premises, in the possession or use, or under the care, 
 of the tenant or his servants, then it is distrainable (d). 
 
 The goods and chattels and wearing apparel of a guest in the 
 tenant's house, in the actual possession and use of such guest 
 cannot be distrained for rent, whether the house in which the guest 
 is lodged is a private dwelling house or a common inn ; nor the 
 goods and chattels of third persons placed upon the demised 
 premises, in the possession and under the care of the tenant^ in the 
 ordinary course of trade ; nor the goods and chattels, horses and 
 carriages of travellers, deposited in hosteli'ies and public stables, or 
 in a market or fair where things are taken to be bought or sold ; 
 nor goods delivered to a carrier to be carried for hire. The horse 
 in the smith's shop shall not be distrained for the rent issuing out 
 of the shop, nor the horse, &c., in the hostelry, nor the materials in 
 the weaver's shop for the making of cloth, or cloth or garments at 
 a tailor's, nor sacks of corn nor meal in a mill, nor in a market, for 
 it is in custody (protection) of law (e). 
 
 Property of strangers placed on the' demised premises, if placed 
 there with the leave and licence of the landlord, is not distrainable. 
 If, for example, the landlord's permission to place cattle on the 
 demised premises has been sought for and obtained, and the beasts 
 are placed thereon with his authority, he is held impliedly to have 
 undertaken not to exercise his power of distress as against them (/). 
 By 34 & 35 Vict. c. 79, if the goods of a lodger are taken as a 
 distress by -the superior landlord, the lodger may make and serve 
 upon the landlord or his bailiff a declaration that such is the fact, 
 accompanied by a correct inventory of' the goods, and a tender of 
 the rent, if any, which the lodger then owes to the tenant, and if 
 after service of such declaration and inventory the landlord pro- 
 ceeds with the distress, he. will be guilty of an illegal distress, and 
 Uable to an action at law at the suit of the lodger. The lodger may 
 
 (c) Read v. Burley, Cro. Eliz. 596. Litt. 47a. GObourn v. Hurst, 1 Salk. 
 
 (d) Mmpratt v. Gregory, 3 M. & W. 249. 
 
 677. (/) Joyce t. Fowhes, 2 Vern. 129. 
 
 (e) 7 Hen 7, lb; Bro. Abr. Distress, Morsford v. Webster, 1 C. M. & B. 696. 
 pi. 57, 71 ; 1 KoU. Abr. 688, pi. 12 ; Co. Giles t. Spencer, 3 0. B., N. S. 253. 
 
530 WEONGFUL DISTRESS. [CHAP. XI 
 
 also apply to a magistrate for an order for the restoration of the 
 goods. 
 
 Materials placed on the demised premises to he manufactwred or 
 worked upon. — The goods and chattels of third persons placed on 
 the demised premises for trading or manufacturing purposes are, by 
 the policy of the law, exempt from distress ; such as the yarn of a 
 stocking-manufacturer, placed in the house of the tenant, a stocking- 
 weaver, to be woven into stockings, but not the frame or machinery 
 of the manufacturer, delivered to the weaver to enable him to 
 weave the yarn (g) ; also the silk of a velvet-manufacturer, delivered 
 to a tenant, a silk-weaver, and taken home by him to be made into 
 velvet at his own house (h) ; bullocks sent to a slaughterer or 
 carcase-butcher, to be slaughtered" and cut up in the way of his 
 trade, and sent back in joints to the owner to be sold or consumed (*) ; 
 corn sent to a miller to be ground; clothes sent to a tailor's, 
 casks sent to a cooper's, or boats to a boat-builder, to be repaired ; 
 goods sent to a weigher to be weighed, or to an auctioneer, commis'- 
 sion-agent, factor, warehouseman, granary-keeper, wharfinger, or 
 other agent, to be sold or exported, or otherwise to be dealt with 
 in the course of trade (k). And so of goods in the possession of a 
 pawnbroker as security for money advanced (I). " The principle of 
 the exemption," observes Parke, B., " is the public good ; that is, 
 that aU men may freely, and without interruption or danger of the 
 loss of their goods, deal with those who carry on trades or businesses 
 for the benefit of all indiscriminately ; or buy or sell in markets or 
 fairs, and thus supply themselves with the commodities of life " (m). 
 
 Property of guests at a common inn cannot he distrained for the 
 rent of the inn, for it would be a sore detriment to travellers and 
 wayfarers who are obliged by necessity to resort to common inns, if 
 their goods and effects were liable to be seized and sold in case of 
 non-payment of the rent of the inn («.). 
 
 Chattels in the custody of the law are not distrainahle.' — Goods 
 and chattels which have been actually seized under a,fi. fa. or taken 
 under an attachment, and are in the possession of a sheriff's oflEicer 
 or bailiff; cannot be distrained for rent, as they are in the custody 
 of the law (o), but if the landlord is beforehand with the sheriff, 
 and puts ia a distress before the she^ff's officer has got possession, 
 the sheriff cannot then seize them. The landlord is entitled to 
 distrain for six years' arrears of rent {p), and if he gets possession 
 
 (g) Wood T. Clwrlce, 1 Or. & J. 484. 254. Matthias v. J^emm<d, 2 0. & P. 
 
 (A) Gibson v. Ireson, 3 Q. B. 39. 353. 
 
 (i) Brown r. Shevill, 2 Ad. & E. 138. (1) Swire r. Leach, 34 L. J., C. P. 150. 
 
 (*) Bao. Abr. Distebss, B. Williams (m) Joule v. Jachson, 7 M. & W. 451. 
 
 T. Solmes, 8 Exoh. 861. Adams T. Crane, (n) Bro. Abr. Distbess, pi. 57, 71 ; 1 
 
 1 C. & M. 380. Brown v. Arvmdel, 10 EoU. Abr. 68, pi. 12. 
 C. B. S4. dilman: v. Elton, 6 Moore, (o) Wha/rton v. Naylor, 12 Q. B. 673. 
 
 243. Thompson t. Mashiter, 8 Moore, (p) Hvmfrey v. Oery, 7 C. B. 567. 
 
; 
 
 SECT. 1.] GOODS OF TKADEES ON DEMISED PREMISES. 531 
 
 before the sheriff he is entitled to retain and sell, and satisfy the 
 whole six years' arrears if they be due. 
 
 If growing crops have been taken in execution and sold by the 
 sheriff, such crops, as Iqng as they remain on the demised premises, 
 are liable to be distrained for rent accruing due subsequently to the 
 execution and sale (14 & 15 Vict. c. 25, s. 2), in default of sufficient 
 distress of the goods and chattels of the tenant ; and if the execu- 
 tion is fraudulent (q), or the sheriff's officer, after the seizure of the 
 goods, relinquishes the possession, and leaves no one in possession 
 of them, then they may be distrained and taken (r). 
 
 The landlord is entitled, in. some cases, to a year's rent, and in 
 other cases to four weeks' arrears of rent, before goods taken in 
 execution by the sheriff or the officers of the county court can be 
 removed from the premises (s). 
 
 Statutory ex&rwption from distress in favour of foreign ambas- 
 sadors, and public companies in liquidation. — It is enacted by 
 7 Anne, c. 12, s. 3, on grounds of public policy, that process of 
 distress against the goods of any ambassador, or other pyblic 
 minister of a foreign state, or of his domestic servants, sliaU ■ be 
 void. 
 
 By the 25 & 26 Vict. c. 89, s. 163, it is enacted that where any 
 company is being wound up by the court, or subject to the super- 
 vision of the court (of Chancery), any attachment, distress, execu- 
 tion, &c., put in force against the estate and effects of 'the company 
 after the commencement of the winding-up, shall be void to all 
 intents (f). And the 87th section provides that after a winding-up 
 order, no suit, a-ction, or other proceeding shall be commenced or 
 proceeded with against the company without the leave of the court. 
 However, if a company, being equitable owner of a lease, continues 
 in occupation after a winding-up order, the landlord is not pre- 
 vented by ss. 87 or 163 of the above Act from distraiaing upon the 
 goods of the company for rent accrued since the winding-up («.). 
 
 Things distrainable— Chattels of traders left on the demised 
 premises in the possession of the tenant.- — If a trade can be carried 
 on with profit and advantage, without the things used in the trade 
 being left on the demised premises in the custody and possession 
 of the tenant, they are not there ex necessitate, and are consequently 
 distrainable. Thus it has been held that if a brewer's casks be left 
 with a publican until the beer is consumed, the casks, do not fall 
 within the exemption, and are not privileged from distress, inasmuch 
 
 (a) Smith T EussM, 3 Taunt. 400. St. (t) See He Progress Assmance Co., L. E., 
 
 John's CoUege t. Mwrcott, 7 T. E. 263. 9 Eq. Oa. 370 ., ^ ^ i, « r^v, 
 
 (r) BUcUs V. ArrmdaU, 1 M. & S. 713. («) IkL^dyOramte Co., L E., 6 Oil 
 
 Is) As to this and as to Distress by App. 462. Whether the leave of the Court 
 
 Bailiffs of the County Court, see post, is necessary, guxre. S. C. 
 
 ''•'■"'^•l- MM2 
 
532 WRONGFUL DISTR-ESS. [CHAP. XI. 
 
 as it is nowise essential to the carrying on the trade of the publican, 
 that the brewer should find the casks (v). ■ So, if the barge of a 
 purchaser of salt is left at the salt-works in the possession of the 
 vendor of the salt, it is distrainable for rent, inasmuch as " it is 
 not necessary for the protection of trade that the boat should be 
 delivered into the custody of the person manufacturing and selling 
 salt. The trade may well be carried on at the salt-works without 
 the possession of the boat being at all parted with by the owner." 
 Upon the same principle it has been held that a farmer's cart which 
 has brought malt to a brewer, and has been left in the brewer's yard 
 in the possession of the brewer, or his servant, to be loaded with a 
 return cargo of grains, or beer, is distrainable for the rent of the 
 brewing premises {w). 
 
 If a carriage which has been sent to a coach-maker to be repaired 
 is left on the premises after the repairs have been completed, for 
 purposes foreign to the trade of a coach-maker, it is distrainable, 
 unless the coach-maker exercise some other trade thereon, and the 
 carriage is left with him for the purpose of being dealt with by him 
 in the exercise of such trade. If he exercises the trade of a com- 
 mission agent for the sale of coaches and carriages, as well as the 
 trade of a coach-maker, and the carriage is left with him to be sold, 
 it would then come within the principle of the exemption {x). It 
 has been held that a carriage standing at livery is distrainable (y). 
 Whenever a chattel, such as a threshing machine, or a loom, found 
 upon the demised premises, has been lent or let by the owner to the 
 tenant, it is distrainable, if it is not in actual use at the time of the 
 levying the distress (s). There is a decision to the effect that cattle 
 on their way to market in charge of a .drover, and turned into a 
 close on the demised premises in the night, are distrainable (a) 
 but this decision appears to be directly at variance with numerous 
 authorities, and with the principles established for the benefit of 
 trade, and cannot now be considered law (&). 
 
 With the exception of fixtures, perishable articles, and things 
 used in trade or placed on the demised premises for trading or 
 manufacturing purposes, or standing there in the custody or posses- 
 sion of the owner, as previously mentioned {ante, p. 528), all the 
 goods and chattels on the demised premises, whether they belong to 
 the tenant himself or to strangers who have placed them in the 
 custody or possession of the tenant, are distrainable for the rent due 
 from such premises. This is the case with the horses and-carriages 
 
 (v) Joule V. JacJeson, 7 M. & W. 451. (s) Fenton v. Logan, 3 M. & Sc. 82. 
 
 (lo) Muspratt y.Gregory, 3 M. &"W. 677. Gorton v. Fcdhner, 4 T. K. 665. 
 
 (x) Findon v. M'Laren, 6 Q. B. 891. (o) Fowhes v. Joyce, 3 Ler. 260 ; 2 
 
 (y) Francis y. Wyatt, 3 Burr. 1498 ; 1 Ventr. 50. 
 
 -W. Bl. 483. Parsons y. GingeU, 4 C. B. (6) Tate t. QUed, 2 Saund. 290a. 
 545. 
 
SECT, l.j GOODS MORTGAGED BY THE TENANT. 533 
 
 of strangers standing at livery on the demised premises, and not 
 being at the time of the distress under the charge or in the posses- 
 sion of the owner or his servants (c). 
 
 Distress of chattels mortgaged hy the tenant. — ^Where a tenant 
 from whom rent was due assigned all his goods and chattels by a 
 registered bill of sale by way of mortgage, and was left in posses- 
 sion of the mortgaged chattels, and the landlord distrained them for 
 rent, and caused them to be appraised, and removed to an auction- 
 room to be sold, and the mortgagee, before the sale, and whilst the 
 goods were in the custody of the law, gave notice to the landlord of 
 the mortgage, and required the landlord to deliver to him, the 
 mortgagee, any goods that might remain after the landlord had 
 sold enough to satisfy the distress and costs, and the landlord 
 promised so to do, and part of the goods remained unsold, and the 
 landlord carried them back to the demised premises and returned 
 them to the custody and possession of his tenant, from whom 
 he took them, taking no heed of the notice given him by the 
 mortgagee, or of his promise to return the goods to the latter, it 
 was held that the landlord was not liable to an action at the suit 
 of the mortgagee, as it did not appear that he had been guilty of 
 any tortious act, or that the mortgagee had sustained any damage 
 in respect of the removal of those goods which had been taken 
 away from and returned to the mortgagor, in whose possession the 
 mortgagee had left them, and which were as much subject to the 
 provisions of the bill of sale after their return as they had been 
 before they were taken away {d). 
 
 If, after the tenant has mortgaged the goods and chattels on 
 the demised premises, the mortgagee enters and takes possession, 
 and the tenant becomes bankrupt, owing more than a year's rent, 
 and the landlord distrains, he" is entitled to make the distress 
 available for the whole rent due to him, as the Bankrupt Act was 
 never intended to favour the mortgagee at the expense of the 
 landlord {e). 
 
 Things distrainahle under a licence to distrain. — If a debtor 
 gives his creditor a licence to enter upon the debtor's land and 
 distraiQ all the goods and chattels upon the debtor's premises (/), 
 and sell them in satisfaction and discharge of the debt, this will not 
 enable the creditor to seize and sell the property of a stranger, for 
 a licence of this sort cannot be made to extend to and to bind those 
 
 (c) Parsons v. GingeU, 4 C. B. 545 ; 16 c. 106), under which this case was decided, 
 
 Law J., 0. P. 230. and the 34th section of the present Act 
 
 {d) Evans v. Wright, 2 H. & K 527 ; (32 & 33 Vict. o. 71) are substantially the 
 
 27 Law J., Eich. 50. same. 
 
 (e) Brocklehwrst v. Lawe, 7 EU. & Bl. (/) As to after-acquired property, see 
 
 185 ; 26 Law J., Q. B. 107. The 129th Bene v. Whitmore, 32 Law J., Ch. 497. 
 section of the old Act (12 & 13 Vict. 
 
534 WRONGFUL DISTRESS. [CHAjP. XI. 
 
 who are not parties to it {g). If, therefore, the occupier of a farm 
 borrows money, and binds himself to pay interest, and covenants 
 that if the interest should be in arrear for a certain time, the 
 covenantee shall have power to enter upon the farm and distrain 
 for the araears in the same manner as landlords may distrain for 
 rent, this will be a licence to the covenantee to enter and seize all 
 the goods on the premises then belonging to the covenantor, but 
 win not enable him to take the goods of a stranger (K). A licence 
 to seize chattels is a mere personal authority, to be exercised by 
 the licensee, and cannot be granted over or assigned to another {i). 
 
 The grantee of a rent-charge, with power of distress, may' 
 justify the taking corn, &c., in a stack or -in trusses, under the 
 2 Wm. & M.^ sess. 1, c. 5 {ante, p. 528), in the same way as a 
 landlord under a distress for rent; also the taldng of the goods 
 of a stranger on the premises charged with the rent. If the plaintiff 
 whose goods have been taken held under a demise prior to the 
 rent-charge, he ought to reply that fact Qc). 
 
 Distress and seizwe of things fravdulently removed. — By 11 
 Geo. 2, c. 19, s. 1, it is enacted, that if any tenant of any lands 
 or tenements, upon the demise or holding whereof any rent is 
 reserved, shall fraudulently or clandestinely convey away from the 
 demised premises his goods or chattels, to prevent the landlord from 
 distraining for arrears of rent, it shall be lawful for the landlord, 
 or any person by him for that purpose lawfully empowered, within 
 thirty days next ensuing the carrying away of the goods, to seize 
 the same wherever they shall be found, as a distress for the rent, 
 and sell and dispose of them as if they had been actually distrained 
 upon the demised premises, provided (s. 2) they have not, before 
 the seizure, been sold lond fide and for a valuable consideration to 
 a person ignorant of the fraud. Where the goods have been placed 
 in any building or inclosure locked or fastened, the landlord, his 
 bailiff or agent, first calling to his assistance a constable or peace- 
 officer, &c., may in the daytime break open the building and seize 
 the goods ; but, before breaking open a dwelling-house, oath must 
 be made (s. 7), before a justice of the peace, that there is reasonable 
 ground to suspect that such goods and chattels are in the dwelling- 
 house (J). 
 
 If it appears that rent was due at the time of the removal of 
 the goods, and that the goods were taken away on or after the day 
 the rent became due, for the purpose of putting them out of reach 
 
 (g) Howes t. Bail, 7 B. & 0. 481. As to a distress for tithe rent-charge, see 
 
 (A) Freeman t. JSdMards^ 2 Exoh. 739. Sx parte Amison, L. E., 3 Exch. 36. 
 
 (i) Brown v. Metrop. Gomnty Society, 1 (I) As to pleas of justification of the 
 
 Ell. & Ell. 838 ; 28 Law J., Q. B. 236 ; seizure of goods under this statute, see 
 
 ante, p. 97. mUiama v. Roberts, 7 Exch. 629. 
 
 {k) Johnson r. FavUmer, 2 Q. B. 936. 
 
SECT. 1.] WHAT AMOUNTS TO A DISTRESS. 535 
 
 of a distress, the removal is a fraudulent removal within the 
 meaning of the statute (m). 
 
 If, therefore, goods are removed on quarter-day, they may be 
 followed, though the rent is not in arrear, and there is no right 
 to distrain until the day after (n). But if the rent is not due, or 
 there is sufiicient distress on the demised premises, independently 
 of the goods removed, to satisfy the rent, the removal is not 
 fraudulent, and the lessor cannot consequently follow and distrain 
 the goods (o). The statute appUes solely to the goods of a tenant, 
 and not to those of a stranger. If, therefore, a lodger removes his - 
 goods to prevent them from being distrained for rent due from the 
 tenant whose lodger he is, the landlord cannot follow them and 
 distrain them(^). To deter tenants from fraudulently removing 
 their goods to avoid a distress, a penalty to the amount of double 
 the value of the things distrained is imposed upon the offender, 
 which may be recovered by an action of debt, or (if the goods do 
 not exceed 50^. in value) by a summary proceeding before two 
 justices (2). 
 
 Tf^at ammmts to a distress for rent. — It is not necessary, in 
 order to make a distress for rent, that the lessor or his agent should 
 take corporal possession of the things intended to be distrained. 
 It is sufficient if the lessor, in person or by deputy, enters upon the 
 demised premises and announces to the tenant, or his servants, or 
 the persons in actual occupation of the property, that he detains 
 them for his rent. Thus, where a stranger was about to remove 
 some goods he had deposited on the demised premises, and the 
 lessor, hearing of his intention, came upon the land and declared 
 that he would not suffer the things to be removed until his rent 
 was paid, and then went away, and in the course of the day sent 
 a broker, who made a formal distress, but in the meantime the 
 .stranger had removed his property off the demised premises, it was 
 held that the distress was commenced by the landlord's entry and 
 declaration, and that the landlord was justified in retaking the 
 goods at the place to. which they had been removed (r). So, where 
 the landlord's agent entered upon the demised premises in the 
 absence of the tenant, and told the servants of the latter that he 
 was come to distrain for rent, and walked round the premises, took 
 an inventory, and left his inventory at the dwelling-house, with a 
 notice of distress addressed to the tenant, informing him that he 
 
 (m) Oppmnan v. Smith, 4 D. & B. 33. Sromley v. Holden, M- & M. 175. Bacli, 
 
 Johmy JenUns, 1 Or. & M. 227. v. Mea^s^ 5 M. & S, 200 
 
 (n) DibbU T. Sowater, 2 Ell. & Bl. 564. W Waodv. Nm.n,JU & P. 30 ; 5 
 
 \o) Hand V. Vcmghan, 1 Sc. 670. Bing. 10. Cramer y. Mott, L. R., 6 Q. B. 
 
 (p) Thornton T. Adams, 5 M. & S. 38. 357. 
 (^ Horsefaa v. Dalty. 1 Stark. 169, 
 
536 WRONGFUL DISTKESS. [CHAP. XI; 
 
 had distrained the goods mentioned in the inventory for rent due 
 to his landlord, it was held that the distress was completed and 
 accomplished by these acts of the agent, and that the subsequent 
 departure of thfe latter without leaving any one in possession of 
 the things distrained was not an abandonment of the distress (s).' 
 And where the agent of the lessor went into a field forming part of 
 the demised premises, where the tenant's cattle were grazing, and 
 placing his hand upon one of the beasts, declared that he distrained 
 the whole of them for the rent then due, it was held that this was 
 • an actual levying of a distress on aU the cattle in that particular 
 inclosure (t). But a mere notice by a landlord that he has distrained 
 things which are not distrainable, unaccompanied by any seizure or 
 removal of the goods, will not constitute any cause of action (u). 
 
 If a warehouse-keeper, who lets out warehouse-room and places 
 of deposit for goods, or receives goods to be warehoused and kept 
 at a certain rent, and has power to distrain the goods in his hands 
 for the warehouse-rent, gives notice to the owner of the goods that 
 he wUl not deliver certain goods in his warehouse to the order of 
 the latter until the rent due for warehouse-room is paid, and then 
 detains the goods, the detainer and notice amount to a distress for 
 the rent (x). Where a lodging-house keeper, to whom rent was 
 due for the hire of furnished apartments, refused to permit the 
 wearing apparel, jewels, and chattels of his tenant to be removed 
 from the apartments, saying that he should detain them until his 
 rent was paid, and the tenant brought an action against him for a 
 conversion of the chattels, it was held that the detainer amounted 
 to a, distress for rent, and that the action was not maintainable (y). 
 And where a lodging-house keeper, claiming rent to be due to him 
 from his lodger, locked up the goods of the latter in the room which 
 the lodger held, and in which they had been placed by him, and 
 kept the key in his pocket, refusing the lodger access to them, 
 saying that nothing should be removed until his bill was paid, and 
 the lodger broiight an action of trespass for a seizure of the goods, 
 it was held that the action was not maintainable («). 
 
 Abuse of the right to distrain, rendering persons trespassers ab 
 initio. — If a landlord going to distrain breaks open an outer door, 
 or gets in through a window,' and then breaks the door open and 
 seizes the goods in the house, this is not a distress {ante, p. 264), 
 but a trespass, and he is responsible for all the damage sustained 
 by the tenant {a) ; and if a distress has been lawfully effected in 
 
 (s) Swann \. Falmouth (Earl o/), 8 B. & Law J., Q. B. 53. 
 ^■/^^^J'r^ ^- * -^y- ?^*- (y) ^"''o" ^- ^^^' ^^ter Term, 1857, 
 
 273 
 
 (t) Thomas t. Marries, 1 Sc. N. E. 524. C. P. Cramer t. Mott, ante, p. S35. 
 («) £ech Y. Denbigh, 29 Law J., C. E. (z) llartUy v. Moxham, 3 Q. B. 701. 
 
 {x) Green v. St. Kath. Dock Co., 19 Q. B. 148. 
 
 (a) Attack v. BramweU, 32 Law J., 
 
SECT. 1.] SEIZUEE OF MORE GOODS THAN NECESSARY. 537 
 
 the first instance, but the landlord or his hailiff abuses the distress 
 by using or working horses or animals distrained, he becomes, at 
 common law, a trespasser ab initio (6) ; but, by 11 Geo. 2, c. 19, 
 s.19, where any distress shall be made for any rent justly due, and 
 any irregularity or unlawful act shall be afterwards done by the 
 party distraining, or his agent, the distress shall not be deemed 
 unlawful, nor the distrainor a trespasser ab initio ; but the party 
 grieved may recover satisfaction for the damage in a special action 
 of trespass, or on the case, at the election of the plaintiff; and if he 
 recover he shall have full costs. This statute, however, does not 
 apply where the original entry was unlawful, and no valid distress 
 has been effected (c). 
 
 If a distrainor abuses a distress by working an animal distrained, 
 the owner may interfere to prevent it, and an action cannot be 
 maintained against him for pound-breach or rescue {d). 
 
 Of unlawful distress when no rent was 'in arrear. — If the lessor 
 distrains before the rgnt-hasbecome due, the tenant may resist the 
 entry and seizure by force, and, after a seizure has been made, he 
 may rescue his goods at any time before they are impounded ; but 
 when once the goods have been impounded, they are in the custody 
 of the law, and the tenant cannot then break the pound and retake 
 them («). By the 2 Wm. & M. sess. 1, c. 5, s. 5, it is enacted, that 
 if any person shall distrain for rent pretended to be due or in 
 arrear when no rent was due, the party so distraining shall forfeit 
 double the value of the chattels so distrained and sold, together 
 with fiill costs of suit {post, ch. 22). 
 
 Excessive distresses. — By the statute of Marlbridge, 5.2 Hen. 3, 
 c. 4, it is enacted, that distresses shall be reasonable and not too 
 great ; and that he that taketh great and unreasonable distresses 
 shall be grievously amerced for the excess of such distresses.. Lord 
 Coke, in his reading on this statute, observes, that it is worthy of 
 observation "how provident the makers of the statute be that 
 men's beasts, catteU, or goods be not excessively distrained," and 
 that " this agreeth with the reason of the common law " (/). It is 
 the duty, therefore, of every person who has by law a right to 
 distrain, to make a fair and reasonable distress ; and if there be a 
 breach of that duty, and the landlord distrains goods and chattels 
 beyond what is reasonably and fairly necessary for the purpose of 
 realising the rent and expenses, he renders himself liable to an 
 action for damages at the suit of the tenant, even although the 
 tenant has not, in fact, sustained any damage {g). If he distrains 
 
 (5) Oidey v. Watts, 1 T. K. 12. Six (e) GUbert on Distress, 61. 
 
 CarpmUrs' case, 8 Co. 146a. (/) 2 Inst. c. 4, p. 107. 
 
 (c) Attack T. Bramwdl, ante, p. 536. (g) Chandler t. Doulton, 34 Law J., 
 
 {d) Smith V. Wrig/ii, 6 h. A N. 821; Exch. 89. 
 30LawJ„Bxch.313. 
 
638 WRONGFUL DISTKESS- [CHAP. XI. 
 
 the crops grooving ^n two fields, when the crop growing in one 
 w;ould he sufficient, when at maturity, to satisfy the rent and 
 charges, the distress is an excessive distress (A,). But it is not fox 
 every trifling excess that an action is maintainable ; it must be 
 clearly disproportionate and excessive (i). And " if there is but 
 one thing which can be taken, sa, that it must be taken or the 
 party must go without his distress, for taking it no action lies, 
 though it much exceeds the sum for which the distress is taken "(k). 
 A distress may be excessive although the goods when sold may not 
 realise enough to cover the rent due and the expenses (l). The 
 action may be brought by a lodger or under-tenant whose goods 
 have been taken, as well as by the lessee himself (m) ; and if the 
 lessee, after the distress, enters into an agreement with the land- 
 lord respecting the sale and disposition of such distress, or 
 authorizes him to dispense with some or all of the iisual forms 
 preparatory to a sale, he does not thereby waive or abandon his 
 right of action for the excessive distress (n). The tenant is entitled 
 to recover damages for a wrongful distress, although he had the 
 free use of the goods all the time they were in the constructive 
 custody of the law (o). 
 
 Distress for more rent than is due. — If a landlord who has 
 distrained, not excessively, for rent in arrear demands a larger sum 
 for arrears than the tenant admits to be due, that alone does not 
 make the detention of the goods by the landlord or his bailiff 
 unlawful. _ The tenant must be taken to know, that neither the 
 validity of the distress nor of the detainer depends on that 
 demand, and that if he wishes to make the latter unlawful he 
 should tender the sum which he alleges to be really due, together 
 with the costs of the distress (p). A declaration, therefore, which 
 alleges that the plaintiff held certain premises as tenant to the 
 defendant at a certain rent, and that the defendant wrongfully 
 seized certain goods of the plaintiff on the demised premises for 
 certain arrears of rent alleged to be due, and afterwards sold the 
 goods for the said arrears, whereas a small part only of the rent 
 claimed to be due was due, discloses ■ no cause of action in the 
 absence of an allegation that the defendant sold more than was 
 enough to satisfy the rent actually due and the costs of the 
 distress (q). The distraining of chattels on a claim of more 
 
 {h) Piggott T. BvrtUs, 1 M. & W. 441. (?t) WiUowghly v. MwrshaU, 4 D. & E. 
 
 (i) Soden T. Eyton, 6 C. B. 430. 539) 2 B. & C. 821. 
 
 (k) Field v. Mitchell, 6 Esp. 71. ' (o) £aylis r. Usher, 4 M. & P. 790. 
 
 {l) Sm,ithv.Ashforth,29 jjim J., 'Exch. (p) OVynn r. Thomas, 11 Exoh. 870; 
 
 259. 25 Law J.) Exch, 127. 
 
 (m) Fisher v. Alga/r, 2 C. & P. 374. (g) Tamcred v. Leyland, 16 Q. B. 669. 
 
 Bail Y. Mellor, 19 Law J.,Exeh. 279. French y. PhiUms, 26 Law J., Eich. 82. 
 
 1 H. & N. 564. 
 
SECT. l.J IMPOXTNDING THE GOODS. 539 
 
 rent being in arrear than is in fact in arrear, and selling them, is 
 not actionable ; firstly, because the distrainor for rent is not bound 
 by the amount for which he claims to distrain, and though he takes 
 the distress, alleging that he does so for an amount exceeding the 
 . real arrears of rent, he may seU afterwards only for that which is 
 reaUy due; secondly, because, from a mere allegation that the 
 distrainor sold for the alleged arrears and costs, it is not to be 
 inferred that he sold more than was necessary to raise the amount 
 of the arrears actually due. If, however, the untrue claim has 
 been followed by a sale of more of the goods taken than was 
 sufficient to raise the amount of rent really in arrear, with the 
 legal charges, then there is a cause of action. It is not enough in 
 an action against a landlord for distraining for more rent than is 
 really due to allege it to have been done maliciously, for an act 
 which does not amount to a legal injury cannot be actionable 
 because it is done with a bad intent (r). 
 
 Bepeated distresses for the same rent. — A landlord cannot lawfully 
 distrain twice for the same rent, unless the distress has been with- 
 drawn at the instance of the tenant, or unless there has been some 
 mistake as to the value of the things taken (s) ; or unless the 
 distress has been rendered abortive by the threats or misconduct of 
 the tenant. If, after a sale of chattels that have been distrained 
 and sold in due course of law, the tenant by force or threats prevents 
 the, purchaser from taking the chattels off the land, the landlord 
 may re-enter and distrain again {t). And if the landlord's receiver 
 or bailiff relinquishes a distress on receiving a bill or note for the 
 rent from the tenant, and the note is dishonoured when it arrives at 
 maturity, the landlord may, as we have seen, distrain again (m). 
 
 Impounding the goods — Pound-lreach. — The landlord may now 
 impound the things distraiaed in any barn or building, hovel or 
 rick, or on any fit part of the demised premises (x). No formal 
 impounding is required, as in ancient times, in order to remove the 
 goods from the possession and control of the tenant, and place them 
 in the custody of the law. As soon as the distrainor has made out 
 and delivered to the tenant, or has left upon the premises, an 
 inventory of the goods he has taken, they are impounded within 
 the meaning of the statute. Thus, where the landlord distrained 
 four casks of beer in a cellar, and gave the usual notice of the 
 distress to the tenant, and left the casks where he found them in 
 the cellar, without placing them under lock or key, or leaving any 
 
 (r) Stevenson v. Newnham, 13 0. B. 297; & N. 203 ; 27 Law J., Eich. 337. 
 
 22 Law J., C. P. 110. (») Pamtt v. Anderson, 7 Exch. 93 ; 
 
 («) Smith T. Goodmn, 4 B. & Ad. IS. 21 Law J., Eioh. 291. 
 
 Bagge t. Mawby, 8 Exch. 649. Dawson (x) 2 Wm. & M. sess. 1, c. 5 ; 11 Geo. 2, 
 
 V. Ormp,! C. B. 961. c. 19, s. 10. 
 
 («) Lee V. Cooke, 2 H. & N. 584 ; 8 H. 
 
540 WRONGFUL DISTRESS. [CHAP. XI. 
 
 person in charge of them, it was held that the casks were duly 
 impounded {y). So, where cattle which had been distrained for 
 rent were left in a field on a farm where they were taken, and the 
 gates of the field, which had heen properly secured by the broker 
 who levied the distress, were opened, and the beasts taken out and 
 driven away, it was held that this was a pound-breach, rendering 
 the person who committed the act liable to treble damages under 
 the statute (s). And if the distrainor enters and makes a general 
 announcement of the distress on one day, and follows up the pro- 
 ceeding on the next, by giving the tenant notice of the particular 
 things distrained and taken, the impounding is complete, at all 
 events from the time of such notice (a). 
 
 Formerly the distrainor, in removing the goods distrained, might 
 have removed them to any place he thought fit for the purpose of 
 impounding them, but the 1 & 2 Ph. & M. c. 12, s. 1, amending the 
 statute of Marlbridge {ante, p. 537), prohibits the distrainor from 
 driving the distress out of the hundred, rape, wapentake, or lathe 
 in which it has been taken, except it be to a pound-overt within 
 the same shire, not above three miles distant from the place where 
 such distress was taken, and enacts that no cattle or goods distrained 
 shall be impounded in several places, whereby .the owner shall be 
 constrained to sue several replevies for the delivery of the distress 
 so taken at one time. If the distrainor uses or consumes for his 
 own private use things distrained and impounded ; if he dra.ws 
 beer out of a barrel (b), tans hides, or uses or works beasts or cattle, 
 he of course subjects himself to an action for damages at the suit 
 of the owner thereof (c). As soon as the goods are impounded they 
 are in the custody of the law, and the tenant cannot retake them 
 without being guilty of pound-breach, and subjecting himself to 
 - an indictment {d), and also to an action for treble damages and 
 costs of suit, although the distress may be wrongful or irregular, 
 and no rent may be in arrear or due (e). But where the distress is 
 being used in a manner which the law will not justify, the owner 
 may interfere to prevent the abuse (/). If the pound is broken, 
 and the goods are unlawfully taken away, the landlord may follow 
 them and re-capture them, but he must not break open the doors of 
 a private house, or stable, or inclosure, nor enter the grounds of a 
 third person for the purpose of retaking the goods, except it be on 
 fresh pursuit {g). 
 
 (y) Firth T. Purvis, 5 T. E. 432. - (e) 2 Wm. & M. sess. 1, o. 5, s. 4 ; 11 
 
 (z) Castlemcm v. Hicks, Car. & M. 266. Geo. 2, o. 19, b. 10 ; Co. Litt. 47b. Cost- 
 
 (a) Thomas v. Marries, 1 Sc. N. E. 634. worth v. Betison, 1 Ld. Raym. 104. 
 (5) Dod y. Monger,, 6 Mod. 216. (/) Smith v. Wright, 6 H. & N. 821. 
 
 (c) Duncomb v. Reeve, Cro. Eliz. 783. (g)- Rich v. Woottey, 5 M. & P. 675 : 7 
 
 [d) Rex T. Bradshaw, 7 0. & P. 233. Bing. 651. 
 
SECT. l.J TENDER OF KENT. 54l 
 
 Penalties are imposed by 12 & 13 Vict. c. 92, and 17 & 18 Vict, 
 c. 60, on parties neglecting to feed impounded cattle. 
 
 If the landlord refrains, at the request of the tenant, from 
 removing the goods from the different rooms in which the landlord 
 or his bailiff finds them, but takes an inventory of the goods, puts 
 a man in possession, and hands to the tenant a notice of distress 
 referring to the inventory, this is to all intents and purposes a dis- 
 training and impounding of the goods. Each room is, for the 
 convenience of the tenant, and with his assent, converted into a 
 pound for the goods therein (A). 
 
 Abandonment of distress. — Leaving possession of goods distrained 
 is not necessarily an abandonment of the distress. If, therefore, a 
 bailiff or party in possession goes away for a temporary purpose, 
 and is then locked out, he may break open the outer door of the 
 house to recover possession of the distress (i). 
 
 Statutory ^ower of sale. — The 2 Wm. & M., c. 5, s. 1, recites 
 that, distresses not being to be sold, but only detained as pledges 
 for enforcing the payment of rent, the persons distraining have 
 little benefit thereby, for remedying whereof it is enacted (s. 2), 
 that where any goods and chattels shall be distrained for any rent 
 reserved or due upon any demise, lease, or contract whatsoever, and 
 the tenant or owner of the goods shall not, within five days next 
 after such distress taken, with notice thereof and the cause of such 
 taking left at the chief mansion-house, or other most notorious 
 place on the premises charged with the rent, replevy the same with 
 suf&cient security, &c. {;post, s. 2) ; that then, after such distress and 
 notice, and after the expiration of the said five days, the person 
 distraining " shall and may," with the sheriff or under-sheriff of the 
 county, or with the constable, &c., cause the goods and chattels to 
 be appraised by two sworn appraisers, and after such appraisement 
 " shEdl and may lawfully sell (/«) the goods so distrained for the 
 best price that can be gotten towards satisfactioil of the rent and 
 charges." 
 
 Tender of rent rendering a sale unlawful. — If, after the impound- 
 ing, and before the sale, a tender of the rent and expenses is made, 
 the landlord' cannot lawfully proceed to sell the things distrained ; 
 for it has been held that upon the equity of the above statute, 
 which gives the tenant five days to replevy the things distrained 
 (s. 2), the tenant ought to have the same time for tendering the rent 
 and expenses, and that an action is maintainable against a landlord 
 who persists in seUing after tender of the rent and costs at any 
 
 (A) Tennant v. Fidd, 8 Ell. & Bl. 336 ; (i) BannisUr v. Hyde, 29 Law J., Q. B. 
 
 27 Law J., Q. B. 38. 141- v i ., . ^.. 
 
 [k) See Kimg v. England, post, p. 5i6. 
 
'542 WEONGFUL DISTRESS. [CHAP. XI. 
 
 time within the five days (I). In the case of a distress of growing 
 crops the tenant may, at any time before the corn is ripe and fit to 
 be cut, tender the rent due, and if, after that, the landlord takes the 
 corn, he may 'be proceeded against as a trespasser (m). 
 
 Whenever goods have been seized as a distress for rent, and a 
 tender is made of a suni sufficient to cover the rent actually due, 
 and the costs of the distress up to the time of the tender, and the 
 bailiff refuses to give up the goods, ■and the tenant is obliged to pay 
 a larger sum to get back his goods, he is entitled to an action for 
 damages (n). But if the landlord distrains for a larger sum than is 
 due, but not excessively, the tenant should tender the amount 
 really due, if he wishes to make the detention of the goods un- 
 lawful (o). 
 
 Parties to whom tender may he made. — A bailiff atithorized to 
 distrain for rent has power given him at the same time to receive 
 the rent, and the landlord has no right to circumscribe the bailiff's 
 authority in this respect, for a tenatit whose goods are seized under 
 the extraordinary power vested in the landlord of distraining, ought 
 to be enabled in all cases to release them at once by tender of the 
 rent and costs to the bailiff The power to receive the rent is 
 therefore necessarily annexed to the warrant to distrain (jp) ; but it 
 does not follow, that because the tender may be made to the bailiff 
 who distrains, it may be made also to any bailiff's follower who 
 may be put into temporary possession of the goods (q). 
 
 Power of sale of growing crops and things fraudulently removed — 
 Tender lefore sale. — The 11 Geo. 2, c. 19, which enables landlords 
 to distrain things fraudulently removed from the demised premises, 
 also cattle or stock of their tenants depasturing on commons 
 appurtenant, or in anyways belonging to the demised premises, 
 and growing crops {ante, p. 528), enacts that it shall be lawful for 
 the landlord in convenient time to appraise, sell, or otherwise 
 dispose of the same towards satisfaction of the rent and charges, in 
 the same manner as other goods and chattels may be appraised and 
 disposed of, the appraisement to be taken when the crops are cut, 
 gathered, cured, and made, and not before ; but it is enacted (s. 8j, 
 that, if after any distress for arrears of rent so taken, and at any 
 time before the crops shall be ripe and cut, cured or gathered, the 
 tenant or lessee, his executors, '&c., shall pay to the landlord, or to 
 the steward or other person usually employed to receive the rent, 
 the whole rent then in arrear, with the costs and charges of the 
 
 (V) Johnson v. Upham, 21 Law J., Q. B. Q. B. 31. Johnson v. Uphom, supra. 
 252, OTerruling, on this point, £add t. (o^ Glynn y. Thomas, 11 Exeh 878 
 
 Thomas, 12 Ad. & E. 117, and Mis t. (p) Hatch v. JJale, 15 Q. B. 15 • 19 
 
 Tai/hr, 8 M. & W. 415. Law J., Q. B. 289. 
 
 (m) Owen V. Legh, S B. & Aid. i73. (q) Eoulton v. EaPnoUs, 29 Law J 
 
 ' (n) Lorvng v. Warburton, 28 Law J., Q. B. 11. 
 
SECT. 1.] NOTICE OP DISTRESS— SALE. 543 
 
 distress, then, and upon such payment, or lawful tender thereof 
 actually made, whereby the end of such distress will be fully 
 answered, the same shall cease, and the crops and produce distrained 
 shall be delivered up to the tenant. • 
 
 Notice of distress is not essential at common law to the validity 
 of the distress (r). It has been expressly laid down, that if the 
 lord distrain for rent or services, he has no occasion to give notice 
 to the tenant for what thing he distrains, for the tenant by 
 intendment knows what things are in arrear for his lands as rent 
 and services, &c. (s) ; but the 2 Wm. & M. c. 5, s. 1, reqiiires, as 
 we have seen {ante, p. 541), notice of the distress to be given 
 preparatory to a sale by the landlord, and the 11 Geo. 2, c. 19, 
 authorizing the distress and sale of goods fraudulently removed 
 {ante, p. 534), and of the cattle and stock of tenants depasturing on 
 commons appurtenant or belonging to the demised premises, and 
 growing crops {ante, p. 526), requires (s. 9) notice of the place 
 where the goods and chattels distrained shall be lodged, to be given 
 within one week to the tenant, or left at his last place, of abode. 
 
 As the tenant is to have five days, under the statute of Wm. 
 & Mary, to replevy from the time he receives notice of the distress, 
 the notice should be given as soon as the distress has been levied. 
 If the distress is not clearly intended to include all the goods and 
 chattels upon the demised premises, the landlord must give the 
 lessee distinct notice of the things included in such distress, in 
 order that he may know what he is to replevy. And for this 
 purpose, as soon as the distress is made, whether by the lessor or 
 his baLliff, an inventory of the goods distrained should be made and 
 served upon the lessee, together with the notice of the distress. 
 The notice of the .distress should set forth the amount of rent 
 distrained for, and the particular things taken, {t). A written 
 notice of distress is not invalidated by a statement that the rent is 
 due to A, whereas it is due to B, provided B has authorized the 
 distress (m). If the landlord removes and sells goods and chattels 
 which were not included in the inventory and notice, and which 
 have not consequently beei£ comprised in the distress, he is liable 
 to an action for damages at the suit of the tenant {x). 
 
 Apjpraisement and sale. — If the tenant, after he has received 
 notice of the distress, neglects for five days, to be reckoned 
 exclusively both of the day of distress and of the day of sale, to 
 pay the rent, the lessor or distrainor may cause the goods to be 
 
 (r) Trent v. Hunt, 9 Bxch. 20. Ewrdmg, 6 Bxeh. 234 ; 20 Law J., Exch. 
 
 (s) 1 Roll. Abr. 674; Disteess, pi. 1. 163. 
 
 Tanered v. LeyUnd, 16 Q. B. 680. («) Trent v. Hunt, 9 Exoh. 1 J. 
 
 (t) Waheman v. Lmdaey, 14 Q. B. [x) BisJiop v. Bryant, 6 C. & P. 484. 
 625 ; 19 Law J., Q. B. 166. Kerby v. 
 
544 • WBONGFUL DISTRESS. [CHAP. XI. 
 
 appraised in the mode appointed by the statute (ante, p. 541), and 
 may afterwards sell them for the best price that can be got for 
 them, and apply the purchase-money in discharge of the rent and 
 the costs Qf the sale (y), leaving the surplus, if any, in the hands 
 of the sheriff, under-sheriff, or constable, for the owner's use. The 
 schedule of the 57 Geo. 3, c. 93, regulating the costs of appraise- 
 ments, " whether made by one broker or more," refers only to the 
 case of the employment of a single appraiser by consent, and does 
 not dispense with the attendance of the two sworn appraisers (z). 
 If the broker or person actually making the distress on behalf of 
 the landlord constitutes himself one of the appraisers, the appraise- 
 ment is wrongful and irregular (a). If the tenant "holds under a 
 covenant not to carry hay or straw off the demised premises, the 
 landlord who has distrained hay or straw must, nevertheless, sell it 
 in the ordinary way for the best price. If he sells it, subject to a 
 condition that the purchaser shall consume it on the land, he is 
 liable to an action by the tenant for not selling at the best 
 price (6). 
 
 Costs and expenses. — By 57 Geo. 3, c. 93, it is enacted, that no 
 persons making any distress for rent under 201. shall take or 
 receive out of the produce of the things distrained and sold any 
 more than the following costs and charges : i.e. for levying the 
 distress, 3s. ; for the man in possession, 2s. 6d. per day (and even 
 this charge may not under all circumstances be justifiable («) ) ; for 
 the appraisement, 6d. in the pound, and the amount of the stamp ; 
 for advertisements, 10s. ; for catalogues, sale, and commission, and 
 delivery of goods to the purchaser. Is. in the pound on the net 
 produce of the sale. If more costs and charges are ^evied than 
 those allowed by the Act, the party aggrieved has a summary 
 remedy before two justices for treble the amount of the charges, or 
 he may bring an action for the recovery of them ; but ^t is provided 
 (s. 4) that no judgment shall be given against the landlord for such 
 treble costs, unless he has personally levied the distress. Every 
 broker or other person who shall make and levy any distress is to 
 give a copy of his charges, and of aU the costs and charges of the 
 distress, signed by him, to the person on whose goods and chattels 
 any distress shall have been levied, although the rent demanded 
 may exceed the sum of 201. (d). "When the rent distrained for 
 exceeds 201., the costs are not limited to any particular amount or 
 fixed scale of charge, but they must be fair and reasonable («). 
 
 (y) Robmson r.Waddington, 18 Law J., 404 ; 20 Law J., Eioh. 226. 
 Q. B. 250. The marginal note of tliis (c) Ex parte Amison, L. R., 3 Exch. 
 
 case, in 13 Q. B. 753, is incorrect. 56. 
 
 (z) AUen v. Flicker, 10 Ad. & E. 640. (d) 1 & 2 Ph. & M. c. 12, s. 2. OJdld 
 
 (a) Westwood v. Cowne, 1 Stark. 172. v. Chamherlam, 5 B. & Ad. 1049. 
 
 (6) Ridgway t. Ld. Stafford, 6 Exch. (e) Lyon t. Tomhies, 1 M. & W. 603. 
 
SECT. l.J SALE WITHIN FIVE DAYS. 545 
 
 Effect of non-compliance, with the statutes authorizing the sale. — 
 The 11 Geo. 2, c. 19, s. 19, after reciting that it hath sometimes 
 happened that upon a distress made for rent justly due, the 
 directions of the 2 W. & M. c. 5, for enabling the sale of goods 
 distrained for rent, have not been strictly pursued, but through the 
 mistake or inadvertency of the landlord or other person entitled to 
 such rent, and distraining for the same, or of the bailiff or agent of 
 such landlord or other person, some irregularity or tortious act hath 
 been afterwards done in the disposition of the distress so seized or 
 taken, for which the party distraining hath been deemed a trespasser 
 ab initio, and in an action brought against him, the plaintiff' hath 
 recovered the full value of the rent for which the distress was taken, 
 enacts, that where any distress shall be made for rent justly due, 
 and any irregularity or unlawful act shall be afterwards done by the 
 party distraining, or his agents, the distress itself shall not be deemed 
 to be unlawful, nor the parties making it be therefore deemed 
 trespassers ab initio ; but the party aggrieved by such unlawful 
 act or irregularity may recover full satisfaction for the special 
 damage he shall have sustained thereby, and no more. 
 
 The plaintiff, therefore, can only recover for an irregularity in 
 distraining and selling where actual damage is proved. For the 
 original taking there is to be no action; the distrainor is to be 
 considered as being in possession of the goods, notwithstanding a 
 subsequent irregularit}'^' And although he holds the goods with a 
 special authority to deal with them in a particular way, and is 
 liable for abusing that authority, yet the Act says that the tenant 
 shall recover full satisfaction for the damage, and no more. "Where, 
 therefore, there is no special damage there can be no satisfaction, 
 and a verdict for'Tiominal damages is not sustainable. Wherever 
 the damages are merely nominal the defendant is entitled to a 
 verdict (/). AVhere^ therefore, the plaintiff in his declaration com- 
 plained of the sale of his goods within five days, and proved that 
 they were sold too soon, but there was no evidence to show that 
 he had sustained any damage thereby, it was held that the judge 
 ought to direct a verdict for the defendant {g). But the statute, as . 
 we have seen, does not apply to cases where the original entry 
 upon the premises was effected in an unlawful manner, as by 
 breaking open an outer door, and where, consequently, no valid 
 distress has ever been effected (A). 
 
 Keeping the distress without selling.— It has generally been con- 
 sidered that the words in the 2 Wm. & M. c. 5, "shall and may 
 lawfully seU," mean that the landlord must give the statutory 
 
 (/) Bodqeri v. Parker, 18 C. B. 112 ; (g) I^cm v. Twrhton, 3 H. & N. 116 ; 
 
 25 law j;C. P. 230, 27LawJ.,Excli248. 
 
 {li) Attach V, BrarmW', ante, p. 536, 
 
 IT H 
 
546 DISTEEgS DAMAGE FEASANT, [GHAP. XI. 
 
 ufitiigg of the distress, and must proeeed to appraise and sell, if the 
 tenant dojgs npt replevy within the five days, or desire the landlord 
 not tq geU. If, however, the landlord should neglect to give notice 
 of th§ distress, and to appraise and sell, hut; should content himself 
 with keeping the goods in his hands, he -will not be liable to an 
 actipfl! for the detention or conversion of the chattels, unless the 
 tgnftflt can prove th^t he had gained a right to have the goods 
 dgliyered up to hini, and that he had sustained some special 
 damage by the detention (i). The landlord -hq,s a lien for his rent 
 upon the things distrained, apd has at corampm law a right to keep 
 thgm as a pledge until his rent is paid (awfe, p. 517), and he 
 can only he made responsible for not selling in an action' foyndp^ 
 upon the statute. 
 
 The lg.ndlord may, with the assent flf the tenant, detain ^he 
 things distrained, or convert them to his own ^se in ssitisfact^pi^ 
 ^n^ discharge of the rent (k). But to obtain a title ft? a-gainst a 
 third person virhpse goods ]\?^ye been (^istf aine4,' there niust be em 
 aetual sale. A taking of the goqds by the lai>dlord at the appraised 
 value is not suf^cient (I). 
 
 In4,^:mfi,jfi(iatjgn of bailiff's. — We have already seen, that if a 
 l^ndlg.rd eniploys a baililf ^0 make ^ distress on a tenant for rept 
 alleged to be dne Crqm suqh tenant to the landlord, and it tiy:ns oi^t 
 that the lanjilqr^- h|,d np right to distrajp, and the b^iUff has to 
 pay damages fpr the unl^wflil distresg ip an action brpught against 
 him by §uch tenant, the bailiff may maint3.in an action ^gainpt the 
 Igji^^lfird. fpr pompensatipn (??i). 
 
 A distress fpr rent affirms the continuance of the teiiancy up tp 
 j^e. day ^hen thg rerjtdi^trainecl for bepaiae diie (n). 
 
 SECTION p. 
 
 OF DISTKESS DAMAGE FEASANT. 
 
 Seizure and impounding of animals and chattels damage, feasant. 
 — Every occupier of land has a right to seize animals and chattels 
 trespassing upon and doing damage to his land, and to detain them 
 until he is tendered or paid a fair compensation for the injury. 
 
 (i) West T. Ifibhs, 4 C. B. 186. Glt/nn (m) Romlings v. Bell, 1 C. B. 959. 
 
 T. Thomas, 11 Exch. 870. Sodgers v. Ibbett \. l)e Zd.SaUe, SB.. &'N. 237 ; 30 
 
 Parker, supra. Law J., Exch. 44. 
 
 {k) Jones V. SamUns, 5 C. B. 142. (n) OoteswoHh v. SpoJces, 10 C. B., N. S. 
 
 (0 King t. England, 33 Lm J., Q. B. ' 103 ; 30 Law J., 0. P. 220. 
 145. 
 
S¥CT. 2.] ON LAND ADJOINING HIGHWAY. 547 
 
 The distress niust be takpn at the time the damage is done, for if 
 the damage was done yestpr^ay, and the distress taken to-day, 
 that would be illegal (o). " If, therefore, a man coming tp distrain 
 beasts damage feasant ^ees_the beasts on his ground, and the owner 
 of the beasts, or his servants, chases them out before the distress 
 b§ taken, tliqugh it be of purpose to prevent the distress, yet the 
 pwner of the soil cannot distrain them ; and if he doth, the owner 
 of the cattle may rescue them, for the beasts must be damages 
 fpagant at the time of the distress. A man may, therefpre, distrain 
 cattle damage feasg,nt in the night, for otherwise, perhaps, the cattl^ 
 will be gone before he can take them.'' 
 
 "If a man takes my cattle and puts them into the land of 
 another man, the tenant of the land may take these cattle damage 
 feasant, though I, who was the owner, was not privy to the cattle's 
 being damage feasant ; ^nd he may keep them against me until he 
 has p|)tained gatisfactipn of the damages." 
 
 A cominpner may justify the taking pf the cattle of a stranger 
 upon the l^n4 damage feasant. Arici if a man hath a right of 
 common for ten cattle, and he puts in more, the surplusage above 
 the ten may be distrained damage feasant. If many cattle are 
 doing damage, a flian, pannqt take one of them as a distress for the 
 whole damage, but be may (iistrain one of them for its own damage, 
 and bring an action qf trespass fpr the damage ^one by the rest (p). 
 If cattle get out pf the clpsg befpre the party coming to distrain 
 ha^ got into it, they cannpt be followed and distrained when off 
 the knd (g-). 
 
 'Th^ lord may fiistratn in respept of injuries done to his, soil, 
 and to his hedges, fences, and trees, although he has no interest in 
 the hgrbage (r). 
 
 Right to dvstrain animals trespassing and doing damage on 
 wni^mc^ lands adjoining pf^Hc highways.— ii \)i.& owner of lands 
 adjoifting a highway is bpund by a statute or prescription (ante, 
 pp. 125, 266) tp fence against the highway, and he neglects to do 
 so, and cattle, -vyhilst passing along the highway under the care of 
 the owner pr his servants, stray therefrom into the adjoining land, 
 and do damage there, the owner pf such adjoining land, who has 
 brpught the mischief on himself by neglecting to fence, has no 
 right to distrain the cattle, unless they are abandoned and left there 
 by the owner or his servants an um-easonable time. And if a man 
 who has land adjoining a highway plants tempting green crops 
 close adjoining the highway, and neglects to fence then} qff there- 
 
 (o) Wormer y. Biggs, 2 C. & K. 31. (s) Ofem6»i t. il/»7^, 3 Esp. 95. Wot- 
 
 Lmdonr. Hooper, Co^p.m. '"T 7" ^T'' ^ °- A? o' w a a 
 
 (jp) Gilbert on Distress, 4th ed., p. 22. (r) Hoskms t. Eolmi, 2 Wme. Saund. 
 
 Co. Litt. 161a. Bac. Abr. Distebss, F. 327a. 
 
548 niSTEESs damage feasant. [chap. XI. 
 
 from, so that cattle being driven along the public tborougli- 
 fare are irresistibly invited to trespass on the adjoining land 
 through the operation of the tempting food upon their natural 
 instincts, the owner of such adjoining land who has so neglected 
 to fence has no right to distrain the trespassing animals, unless 
 the drovers who have charge of them fail in their duty in endea- 
 vouring to prevent them from trespassing and 'from continuing on 
 the adjoining land (s). 
 
 "Whilst cattle are lawfully passing along a highway the owners 
 of the cattle are, as we have seen, using the highway according to 
 the dedication of the owner of the soil, and, being there with his 
 consent, they are occupying the highway; but if the cattle have 
 strayed into the high road, and have passed therefrom into the 
 adjoining close, they may be distrained there damage feasant, not- 
 withstanding the owner of that close was bound to repair the fence 
 between his close and the road, because the cattle were wrongfully 
 on the road, and the owners were not occupying it so as to cast any 
 obligation to repair the fence upon the distrainor, who is not bound 
 to fence against trespassers (t). 
 
 If a landowner neglects to repair and maintain a fence which 
 he is by law bound to repair, and by reaso'n thereof his neighbour's 
 cattle stray into his land, he has no right to distrain them damage 
 feasant, as he is himself the occasion of the injury (u). 
 
 What things may he, distrained damage feasant. — The- right of 
 the owner or occupier of land to seize and detain animals and 
 chattels trespassing upon and doing damage to his land is restricted 
 to such animals and chattels as are not in the actijal possession and 
 use, and under the personal care, of some human being (x). If a 
 man rides upon my corn I cannot take his horse damage feasant, 
 for that would lead to a breach of the peace (?/) ; neither can I take 
 a horse and cart away from a man who is actually driving it, nor a 
 horse or a dog which a man is leading by a string, nor any animal 
 which is under the immediate control of the owner (z). It is not 
 enough, however, to exempt a dog from seizure damage feasant, to' 
 allege that the dog was in the possession and under the personal 
 care of the plaintiff, for that may be so and yet the dog may be 
 running about trespassing, and may not be under his immediate 
 control. Where, therefore, to a plea justifying the seizure of a dog 
 damage feasant the plaintiff replied that the dog when taken was 
 
 («) Goodwyn v. Chevdey, 4 H. & N. (u) Singleton v. Williamson, 31 Law J. 
 
 631 ; 28 Law J., Exoh. 298. See ante, Exoh. 17 ; 7 H. & N. 410. ' 
 
 ^'}^\r z o. j„ , .. W Gilbert on Distress, 4tli ed,, p. 21. 
 
 (t) Mamch., Shef., and Lmc. Sail. Co. Site ante, p. 527. 
 
 T. TTffliKs, 14 C. B. 213 ; 23 Law J., C. P. (y) 9 Vin. Abr. 121, Distbess, A., 
 
 85, pi. 4. 
 
 (?) Fiild V. Adgmes, 12 Ad. & E, 649. 
 
SECT. 2.] EAILV.-.VY ENGINES — TENDEli OF AMENDS. 549 
 
 in the actual . possession of the servant of the plaintiff, and was 
 then under his personal care, and was being used by him, it was 
 held that these allegations as applied to a dog were insufficient to 
 establish such a possession and user as would exempt the dog from 
 seizure. "The allegations," observes Patteson, J., "would be satis- 
 fied by proof that the dog was within sound of the servant's 
 whistle, though the servant was out of sight " (a). 
 
 Shocks of corn may be taken damage feasant. If turves lie 
 upon a common, damage feasant, a commoner may distrain them, 
 but he cannot burn them. A greyhound may be distrained /unning 
 after conies -in a warren, and so may a ferret brought into a warren. 
 If a man brings gins and nets through my warren I cannot take 
 them out of his hand, but if men are rowing upon my water, and 
 endeavouring with their nets to catch fish in my "several fishery, I 
 may take their oars and nets, and detain them as damage feasant, 
 to stop their further fishing (&). 
 
 If domestic pigeons come upon land sown with corn, and eat 
 up the corn, the occuj)ier of the land is justified in shooting them, 
 as he has no other means of taking them damage feasant (c). 
 
 Distress hy railway companies of locomotive engines damage feasant. 
 — All railway companies have a common-law right to distrain 
 engines and carriages encumbering their railway 'and obstructing 
 the right, of passage along the line ; and the provisions of the Eail- 
 way Clauses Consolidation Act, with respect to the introduction of 
 engines upon the railway and the removal of improperly constructed 
 engines, do not control or qualify this right, but give a cumulative 
 remedy (d). 
 
 Tender of amends. — If the lord or his bailiff comes to distrain 
 beasts damage feasant, and before the distress the owner of the 
 beasts tenders sufficient amends, and the distrainor refuses it, the 
 latter becomes a wrong-doer if he then distrains. Tender before 
 the distress makes the distress tortious. Tender after the distress, 
 and before the impounding, makes the detainer and not the taking 
 wrongful. Tender after the impounding is of no avail, as the 
 distress taken is then in the custody of the law (e). But tender in 
 cases of distress for rent renders a subsequent sale unlawful, as we 
 Jiave seen, ante, p. 541. 
 
 The hazard of the sufficiency of the tender rests upon the 
 wrong-doer whose cattle have trespassed, and not upon the party 
 who has suffered by the trespass. If the latter, therefore, demands 
 an exorbitant sum for compensation, that will not dispense with 
 
 (a) Bunch y.Kennington, 1 Q. B. 680. Hail. Co., 2 Ell. & Bl. 793. 
 
 (6) Bao. Abr. Distkess, F. (e) SmgUton t. WiUmmson, 81 Law J„ 
 
 (c) Ante p. 267. Exch. 287. Thomas v. Harries, 1 M. & 
 
 ' (d) Amiergate, die, Batt. Co. v. Mid. Gr. 695 ; 1 Sc. N. B. 524. 
 
550 DISTRESS damagi; feIsant, [chap. XL 
 
 tiie necessity of a tender of a proper compensation, aiidwill not 
 relieve the owner of the trespassing cattle from this olaligation of 
 estiihating and tendering at his own risk the proper amouiit of 
 damage (/) ; for he, being the original wrong-doer, by sufferiiig his 
 cattle to trespass, is bouiid to tender the sum which he maintain^ 
 to be sufficient, before he is in . a position td coniplain of the 
 exorbitant amount of cdiiipensatiorl 'claimed. If he has teiid'eted a 
 sufficient sum before distress hilde, Mb remedy would be by replevin 
 or action for a trespass, and if after the distress, but before iih- 
 pounding, an action for the lilil^wful deteiition of the things 
 taken (cf). ^ 
 
 The 2 W. & M. c. 6, Which enables landlotds t'd Sell "things- 
 distrained for reht, does hot eitend to di'stressfes damage feasant. 
 Consequeitly they renakin as the^ -Were at coinmoil law, mere 
 pledges, and the sale of them will make the party distraining a 
 trespasser ab initio, unless the sale was necessary td cover the 
 expense of finding foOd and water for the animals drstfaiti'ed, and 
 can be justified under it & 18 Vict. c. S'd (iiifrd). 
 
 The distrainor must at his jieril find a proper p'dliiid. G'eiierlll^, 
 tlie manor pound would be the proper place, but if that is iidt in a 
 fit state he must find another. He cannot impound so as t'd injure 
 or destroy the subject-matter of the distress (h). 
 
 Sale of impounded ani>mals.- — By 12 & 13 Vict. B. 92, s. 5, it is 
 enacted, that every person who shall impound or confin^ any- 
 animal in any common pound or inclosed place shall provide it 
 with food and water, ahd by 17 & 18 Vict. c. 60, 1. 1, it is further 
 enacted, that every person who has supplied such animal with food 
 and water, shall be at liberty, after the eipifatidn of seven clear 
 days from the time of impounding the same, to seU. any such 
 animal openly in the public market, after having given three days' 
 public printed notice therebf, and to apply the produce Of the sale 
 in discharge of the value of such food and nourishment and the 
 expenses of tlie sale, rendering the overplus to the owner of the 
 animal. Where several beasts have been distrained aiid impounded 
 damage feasant, the distrainor cannot justify the sale of each beaSt 
 individually in discharge of the cost of its food and the expenses. 
 Parties availing themselves of the statute must show that it ^as 
 necessary to SeU the number they did Sell, or that they sold one, 
 and that it did not produce enough, ahd then that they sold more. 
 " The power is measured by the necessity of the case, ahd if the 
 distrainor is obliged to keep the distress for an indefinite period. 
 
 (/) GvMver t. Cosens, 1 C. B. 795. , (h) WUdei- V. S^eer, 8 Ad. & JI. 647. 
 
 (g) Gh/rm y. Thomas, 11 Exch. 870; 25 BigneU v. Clwrhe, 5 H. & N. 485; ?9 Law 
 Law J., Esoh. 128. J., Exoh. 257. 
 
SECT., 3.] DUTIES Of POUND-KEEPEEg. 551 
 
 there is nothing to prevent hiin from selling froni time to tiine to 
 defray the expenses " (i). 
 
 By the Roman l&^, hS who tobt the cattle of another p'erson 
 feeding in his grpiihd, or doing any other damage, was respbhsible 
 fdr aily Violence doing hurt to the cattle, or fer driving theiii in any 
 other manner thto he would his own ; and if he caused a,ny damage 
 to the cattle, he "fras bound to make it good (k). 
 
 Duties and responsibilities of poimd-keepers. — It has been, held, that 
 if an of&cer charged with the performance of certain public duties 
 does that which beloiigs to his bflEice, and idtermeddles no further, 
 he shall hot be liable fot any precedent tortioiis act of which hfe 
 could know nothing. A pbTiiid-k&eJ)6r, therefore, who only doeS 
 the duties of his oiifice by impounding things brought to him, 
 does not by detdinihg then! in the pound render hiiilself tesponsible 
 for the unlawfulness of the distress. The pound-keepet is bound 
 to take aM keep whatever is brought to him, at the peril of the 
 person who brings it, without any judgmeht, discretion, exainination, 
 or warrant ; and if the thitigs have been wrongfully taken, the 
 person briuging thehl to the pouhd ahd Hot the ipound-keeper, ii 
 responsible for the wrohg. " It would be terrible," observes Lord 
 Mansfield, " if a poiind-keeper were liable to ^h action for refusing 
 to take cattle in, and -v^^ere also liable to another action for not 
 letting theih go " (l). 
 
 SECTION III. 
 
 EEMSblES Fok UNLAWFUL AND EXCESSIVE DISTIJESSES. 
 
 Replevin of things distrained.— By the common law, whenever 
 the goods of one man had been wrongfully distrained by another 
 ~ (not being a sheriff or his officer acting in execution of the jprocess 
 of a superior court), and the person out of whose possession the 
 goods had been taken wished to have them restored to him, and to 
 try the lawfulness of the seizure, he might get back his goods by 
 giving security to the sheriff of the county to prosecute an action 
 with success, and make out the injustice of the taking. The 
 proceeding by which this was accomplished was called a replevin, 
 or the getting back of a chattel taken and detained as a pledge or 
 security, by substituting another pledge in the place of the thing 
 taken (ni). 
 
 H) Lmjttiii V. Hwvy, 8 Q. B. 819; .15 © Bminy Mi Cowp. 478. 
 
 LJ QB 244 (iiA) Co. Lltt. 145b;Spelin. GloBB. 485; 
 
 \h) Dom'at, Ut. 2, tit. 8, s. 2, § 6. Gilbert on Keplevins. 
 
552 WEONGrUL ULSTKESS — EEPLEVIN, [CHAP. XI. 
 
 The authorities all lay it down that replevin can only be 
 maintained where goods are taken by one man out of the possession 
 of another ; not where they have been delivered upon a contract ; 
 and this is clear upon the form of pleading; which always is, that 
 the defendant " took and detained " the goods, the plea to which 
 allegation is non cepit (n). 
 
 Eeplevin does not lie for goods which were taken abroad, but 
 are detained here (o), as the object of the proceeding is to restore 
 the possession as it was before the taking. 
 
 The writ of replevin, observes Lord Redesdale, " is merely 
 meant to apply to the case where A takes goods wrongfully from 
 £, and B applies to have them redelivered to him upon giving 
 security, until it shall appear whether A has taken them rightfully. 
 But if A be in possession of goods and B claims a property, this is 
 not the writ to try that right " (p)- Where, therefore, a bailee, who 
 had the lawful possession of chattels by delivery from the owner, 
 placed the chattels in the hands of the defendant, who set up a 
 lien upon them, and the plaintiff proceeded to replevy the goods 
 and bring an action of replevin, it was held that he had mistaken 
 his remedy and could not proceed by replevin, but should have 
 proved his prior right in an action for detaining, or for wrongfully 
 converting, the chattels. " The whole proceeding of replevin at 
 common law," observes' Coleridge, J. (q), " is distinguished from 
 that in trespass, in this, amongst other things, that while the latter 
 is intended to procure a compensation in damages for goods 
 wrongfully taken out of the actual or constructive possession of 
 the plaintiff, the object of the former is to procure a restitution of 
 the goods themselves, and this it effects by a preliminary ex-parte 
 interference by the officers of the law with the possession. This 
 being done, the action of replevin, apart from the replevin itself, 
 is again distinguis'hed from the action of trespass by this, that, at 
 the time of declaring, the supposed wrongful possession has been 
 put an end to, and the litigation proceeds for the purpose of 
 deciding whether he, who by the supposition was originally' 
 possessed, and out of whose possession the goods were originally 
 taken, and to whom they have been restored, ought to retain that 
 possession, or whether it ought to be restored to the defendant." 
 
 " As a general rule, it is thought just that a party in the peace- 
 able possession of goods should remain undisturbed, either by the 
 parties claiming adversely or by the officers of the law, until the 
 right be determined and the possession shown to be unlawful; But 
 where, either by distress or merely by a strong hand, the peaceable 
 
 (n.) Galloway V. Bird, i Biug. 301. (p) Wilsons, In re, 1 Soh. & Lef. 320n. 
 
 (0) Nightingale y. Adam, 1 Show. 91. (_q) In Mennie v. Blake, infra. 
 
SECT. 3.] IN THE COUNTY COURT. 553 
 
 possession has been disturbed, an exceptional case arises ; and it is 
 thought just that even before any determination of the right the 
 law should interpose to replace the parties in the condition in which 
 they were before the act done, security being taken that the right 
 shall be tried, and the goods be forthcoming to abide the deci- 
 sion " (r). 
 
 The proceedings in replevin were formerly originated by a writ 
 sued out of the High Court of Chancery, by the person whose goods 
 had been taken and directed to the sheriff of the county, command- 
 ing him to replevy the goods and to do justice in the matter. But 
 the statute of Marlbridge (52 Hen. 3, c. 21) authorized the sheriff 
 to replevy on his own authority, and without any suit in replevin, 
 on complaint being made to him of the wrongful taking, and the 
 requisite sureties and pledges being tendered (s). The statute, 19 
 & 20 Vict. c. 108, for amending the Acts relating to the county 
 courts, enacts (s. 63), that the powers and responsibilities of the 
 sheriff with respect to replevins shall thenceforth cease ; and the 
 registrar of the county court of the district in which any distress 
 subject to replevin is taken is empowered to approve of replevin 
 bbnds, and to grant replevins on security being given (ss. 65, 66), 
 and to issue all necessary process in relation thereto to be executed 
 by the high bailiff. 
 
 Replevin in the covMty court. — If the replevisor wishes to proceed 
 in the county court, he must give security, to be approved of by 
 the registrar, for the rent or damage in respect of which the distress 
 was made and the costs in the county court, and must bind him- 
 self with sureties to commence an action of replevin against the 
 distrainor in the county court of the district within which the dis- 
 tress was taken within one month from the date of the security, 
 and to prosecute such action with effect and without delay, and to 
 make a return of the goods, if a return thereof shall be adjudged. 
 
 The action of replevin in the county court may be removed by 
 certiorari into the superior court by the defendant, on security 
 being given by him to the master conditioned to defend the action 
 with effect, and to prove that the defendant had good ground for 
 believing that title, &c., was in question, or that the rent or d&mage 
 in respect of which the distress was taken exceeded 20/. The 
 county court, however, has power to try an action of replevin, 
 although the title to land may come in question, if the defendant 
 has not removed the cause under the above provision {t). An 
 appeal from the decision of the cou.nty court is allowed where the 
 
 (»•■) Mennie T. Blake, 6 Ell. & Bl. 851 ; 2nd, 13 Edw. 1, stat. 1. 
 25 Law J., Q. B. 401. («) Fordham v. Alers, 33 Law J., Q. B. 
 
 (g) See the statute of Westminster the 67. 
 
554 WKONGFUL DISTRESS— REPLEVIN. [OHiP. XI. 
 
 amount of the rent or damage erceetls 20^., and in all actions whetS 
 th'e parties have agreed to th'e jurisdictioil. 
 
 Heplevin cannot be joined -with iany other form of actioh iit thg 
 county court (u). 
 
 Eeplevin in the sup'eHor 'coUrts.— The action of replevih may B8 
 commenced in any superior coui't, in the form applicable to jJersOiial 
 actions therein. By 19 & 20 Vict. c. 10§, 8. 65, it is enacted, that 
 if the replevisor shall wish to cdhlinehce prbeefedihgS in Mf supe- 
 rior court, he shall at the tim4 of replevying gi^'e security, to b8 
 approved of by the registrair of the cbiiiity court, for sii'ch In 
 d,inaount as such registrar shall deetii sufficient to coyer the alleged 
 rent or damage in respect of which the distress shall have been 
 made, and the probable costs of the cau^'e in the superior court ; 
 conditioned to cominehc^ an action of replevin agaihst the dis- 
 trainor in siich superior c'durt as shall be nanied in the s'ecilHty 
 within one week from the date th'er'eof, and to prbse'cute such action 
 with effect and without delay, and unless judpient thereon be 
 obtained by default, to ^rijve before such suJ)eri'or court tbat he 
 had good gr6und for believing either that the title to some corpo- 
 r'eal 6r incorpbi'eal hereditament, or to soine toll, market, fair, or 
 franchise, was in question, or that such rent or daniage exceeded 
 201., and to make return of the goods if a return thereof shail be 
 adjudged. 
 
 Actions of replevin of things 'distrMned damage feasant, when 
 tried ill the couhty conrt, are to be tried in a sumihafy way, as 
 othfer actions ih those courts held iiiider the authority of 9 &. 10 
 Vict. c. 95 (x). "Where the distress is for damage feasant, and the 
 defendant in the county court iS entitled to judginent for a return 
 of the things distrained, the plaintiff is entitled to have the amount 
 of the damage done found, and to have judgment found for the 
 defendant in the alternative, for a return of the distress, or foi: the 
 amount of the dainage so found (y). 
 
 ActioTikfo^ unlawfully selling impounded animals and cattle. — 
 i'o enable a person, to avail hiinseE of the power to sell impbuniied 
 ahimals, given by 17 & 18 Vict. c. '60, s. 1 (ante,-p. 550), it mustbe 
 shown that the aniinals had been impounded by some person in the 
 exercise 'or intended exercise of a right to distrain. The word 
 " confined" in the 12 &, 13 Vict. c. 92, s. '5 (ilicl.), does hot apjply to 
 all takings and confinement of animals under all circumstances (z). 
 
 Actions f 07' unlawful and excessive distresses. — If a laiidlord has 
 distraiiied for rent, no rent being in arrear or due, the proper 
 
 («) Mungean r. Wheatdey, 6 Exoh. (j/) .County Court Kules, Eule 181 ; 2 
 
 88. . Jur. N. S. 551, part 2. 
 
 (k) 'County Court Rules, Eule 179; 2 (a) MacheU t. MUs, 1 C. & E. 685. 
 
 Jur. N. S. 551, part 2. Masson r. Neuilmd, 9 C. & P. 575. 
 
SECT. 3.] ACTIONS^PARTIlii 555 
 
 remedy is by action upon the statute for double tbe value of the 
 things distrained (ante, p. 537). If the landlord has distrained for 
 more rent than is due, and the tenant has tendered the amount due 
 before the distress made, liis reinedy, if a distress is afterwards 
 made, -W-oUld be either by ir'e^Min, bt ah action for a trespass, or 
 for a Vriingtul seizure and conversion 'of the things distrained; If 
 , the tender is made after the distress, ail action would be maintain- 
 able for the detention of the property (a). The mere retainiiig by 
 the landlord df the goods distraiiied after l;he tenant haS gained a 
 right to have thfem delivered ujp to kim will hot render the landlord 
 liablfe to ah action for a trespass. A landlord, therefoi:e, who refuses 
 a proper tender, is not to be regarded as a trespasser merely by 
 reason of his non-teas'4hce in failing to deliver up the distress on 
 being required so to do, but his refusal may amount to evidence of 
 a conversion (&). 
 
 If a landlord makes a second distress for the same rent when he 
 might have taken sufficient at first, he is liable to an action for the 
 wrongful cohvei'sion of the things seized under the second distress (c). 
 
 The wrongful seizure of beasts of the plough, or of the tools and 
 iinplements of a man's trade, may be ihade the foundation of an 
 action of trespass as ^f^ell as of an action upon the case {d). 
 
 By the 30 & 31 Vict. c. 142, s. 1(1, a defendant against whom 
 ah actidn for ihalicibu's prosecution, illegal arrest, illegal distress, 
 assault, false imprisbniheht, libel, slander, seduction, or other action 
 of tort has Keen brought in a superior court, may, on an affidavit 
 that the plaintiff has no visible means of paying costs in case of a 
 Verdict against him, apply to a judge to stay proceeding^, iill the 
 j^laintiff gives security for costs, or satisfies the judge that he has a 
 cause of action fit to be tried in a superior court ; and the judge 
 may make ah order accordingly, or may remit the case for trial 
 before a county court, as he may think best. 
 
 JParties to "be made plaintifs. — A person from whose possession 
 goods and chattels have been taken is entitled to replevy them, and 
 try the la-^fulness of the taking. Thus, he who hath the goods of 
 another pledged to hina, or who hath the cattle of another to manure 
 his lahd, has a sufficient property to maintain replevin (e). It the 
 cattte of a /«me sole be taken, and afterwards she marry, the husband 
 alone must bring the action, for the cattle rest exclusively in the 
 husband by the marriage ; but if the goods taken are those which 
 the/e?ji6 has as an executrix, she may join with her husband in the 
 replevin (/). 
 
 (a) Guttiver v. Cosens, 1 C. B. '?88. . ,'(S) Nargek T. Niasr, 1 jEU. & Eft 439 
 v. Thomas, 11 Bich. 878 ; ante, 28 Law J., Q. B. 143 
 
 p. 642. (e) Co. Litt. 145 -, Winch, 26; Bac: 
 
 (J) West V. Nilhs, 4 C. B. 172. Abr. Kbplevin, F. G. 
 
 (c) Damson t. Gropp, 1 C. B. 961. (/) Powes v. Marshall, 1 Sid. 172 
 
556 WRONGFUL DISTRESS. [CHAP. XI. 
 
 An action for an excessive distress may be brought by a lodger 
 or under-tenant whose goods have been taken, as well as by the 
 lessee himself (g). Where the plaintiff was tenant of a house, in 
 which were goods that had been assigned to his < wife's trustee, 
 who lived with them, but the plaintiff had the actual use and 
 enjoyment of the goods, it M'as held he had sufficient special pro- 
 perty in the goods to entitle him to maintain an action for an 
 excessive distress (h). 
 
 Parties to le made defendants. — If a servant, authorized merely 
 to distrain cattle damage feasant, drives cattle from the highway 
 into his master's close, and there distrains them, the master wUl not 
 be responsible for the wrongful act (*). Where a landlord autho- 
 rized his bailiff to distrain for rent due to him from his farm tenant, 
 and the bailiff by mistake distrained the cattle of another person 
 beyond the boundary of the farm, and sold them, and paid over 
 the money he received for them to the landlord, 'it was held that 
 the landlord was not responsible for the trespass, unless he received 
 the money knowing of the wrongful seizure, or unless he meant to 
 adopt the act of the bailiff at all hazards Qc). But if the landlord 
 has appointed an inexperienced, insolvent, or incompetent baiUff, 
 or has neglected to furnish him with proper instructions, he wiU be 
 responsible in damages in an action for negligence {ante, p. 23). 
 And every landlord who gives a' broker a general authority to dis- 
 train is responsible if his broker exceeds his authority, by distrain- 
 ing things which are not distrainable (I), or if he sells goods without 
 having them duly appraised (m) ; but a landlord who does not 
 personally interfere in making a distress is not liable for the neglect 
 of the broker in not delivering a copy of his charges, &c., pursuant 
 to the statute (n) {ante, p. 544). 
 
 All persons who aid, or counsel, or direct, or join in a trespass, 
 are, as we have seen, joint-trespassers, but one partner cannot drag 
 another into a trespass without his previous consent, or without .his 
 subsequent concurrence. Where, therefore, one of several partners 
 signed a distress-warrant in his own name on behalf of the firm, it 
 was held that this was no proof that the distress was authorized by 
 the firm, so as to render the other partners responsible for it. It 
 must be shown, either by evidence before the transaction that they 
 
 Bro. Abr. Bar. & Feme, pi. 85. BlacTc- 120. 
 
 lorn V. Greaves, 2 Lev. 107. Serves v. (i) Lyons t. Martin, 8 Ad. & E. 512: 
 
 Dod, 2 B. & P. N. K. 405. a»te, p. 24. 
 
 (ff) FisTier t. Algar, 2 C. & P. 374. (h) Lewis t. Read, 13 M. & W. 837. 
 
 Bail V. MeUor, 19 Law J., Exch. 279. Freeman v. Rosher, 13 Q. B. 780. 
 
 And see further as to parties to actions (I) Oauntlett t. King, 3 C. B., IS. S. 
 
 for the unlawful seizure and conversion, 59. 
 
 and unlawful detention of chattels, amte, (m) ffaseler v. Lemoyne, 5 C. B., N. S. 
 
 pp. 362— 366, 452 — 454. 530. 
 
 {h) Fell V. Whittaker, L. B., 7 Q. B. (») Hart t. Leach, 1 M. & W. 560. 
 
SECT. 3.] ACTIONS — PLEADINGS. 557 
 
 all joined in ordering the distress^ or by evidence afterwards that 
 they concurred in and received the benefit of it (o). 
 
 Declarations in replevin simply set 'forth that in a certain 
 dwelling-house, or in a certain close or common, in a certain 
 named parish and county, the defendant took certain cattle or 
 goods and chattels of the plaintiff (describing them), and that the 
 plaintiff unjustly detains them against sureties and pledge until, 
 &c., claiming damages. 
 
 Declaratiotis for a wrongfid and excessive distress. — If beasts of 
 the plough or the tools, of a man's trade have been wrongfully 
 distrained, there being other goods of sufficient value on the 
 demised premises to satisfy the rent, the ordinary declaration for a 
 trespass in seizing and taking away the plaintiff's chattels correctly 
 describes the true cause of action {p). A plaintiff cannot, under 
 the common count for an excessive distress, i.e., for seizing more 
 than was necessary, show that the defendant distrained for and 
 sold goods exceeding the rent due, and a count for such a cause of 
 action will not be allowed to be added at the trial, where it does 
 not appear to have been a matter in dispute between the parties at 
 the commencement of the action {q). 
 
 Declarations for distraining and- selling goods without notice of 
 distress, or witlwut appraisement, or for not selling for the best price. 
 — A good cause of action inay be shown by a declaration which 
 alleges that the defendant wrongfully seized divers goods and 
 chattels of the plaintiff (enumerating them), of a certain specified 
 value, then being upon certain premises of the defendant, as and 
 for a distress for rent claimed by the defendant to be in arrear and 
 due from the plaintiff to the defendant for the said premises, and 
 afterwards wrongfully sold the said goods and chattels, without 
 having given to the plaintiff a notice of the said distress and of 
 the cause of taking the same, or left such notice at the chief 
 mansion-house or other most notorious place on the said premises ; 
 — or wrongfully sold the said goods and chattels, without causing 
 them to be duly appraised by two sworn appraisers (r) ; — or wrong- 
 fidly sold the said goods and chattels for much less than the best 
 price that could have been gotten for them, had they been sold 
 with reasonable care and diligence. Selling under value is a 
 distract ground of complaint, and ought to be distinctly stated on 
 the face of the declaration, if the plaintiff means to rely upon 
 
 it (s). 
 
 Fleas in replevin — Won cepit. — Pleas in replevin are generally 
 
 (o) Peirie v. Zamont, Car. & M. 96; (?) Lucas t. Ta/rleton, 3 H. & K. 116 ; 
 
 ante w 25 364—366. 27 Law J., Exoh. 246. 
 
 (v\ Nargett v. Nias, ante, p. 555. (O Sis!u>p v. Bryant, 6 0. & P. 484. 
 
 [p, i^argeu v. , '^, l ^^^ Thompson T, Woqd, i Q. B, 498, 
 
558 WKONGFUL DISTEESS. [CHAP. XI. 
 
 either pleas in bar, or in justification, or by way of cognizance, or 
 by way of avowry. The defend^,nt may either ayow or justify, at 
 l^is election. The general issue in replevin is non c^j>,it, mi this- 
 may be pleaded by one of several defendants. It is a simple 
 traverse of the allegation in the declaration of the taking of the 
 chattels, and merely alleges that the defendant did not take the 
 cattlp or the goods and chattels in the declaration mentioned. This 
 is the proper plea when the defendant denies that he was the 
 party distraining, or that he distrained in the place described in 
 the declaration. If the defendant wishes to dispute the plaintiff's 
 property in the gQods^ he must plead a plea specially alleging that 
 the goods and phattels in the declaration " me;itioped were, at the 
 said time when, &c., the property of the defendant, or of some 
 named third party, and not the property of the plaintiff (t). 
 
 Under g, plea of non cepit in an action qf replevin the defen- 
 dant may, under ttie Municipal Corporations Act, show that he 
 \jras a constable g-ppointed for a borough, and tpqk the goods within 
 tjie county wherein the borough is situate, bnt withput the borough, 
 on ei charge that t"hey had been stolen {u). 
 
 Avowries in replevin. — By 11 Geo. 2, c. 19, s. 22, it is enapted, 
 tha^ ^11 dpfpi^dants in replevin may avow or make cognizance 
 geuerq,lly th^t the plaintiff or otl^er tenant of the lands ^.pd tene- 
 mei^ts wherefli^ a distress wa§ made enjoyed the same iinder a grant 
 pr demi§g at ^uph a certain re^it during the time wherein the rent 
 distrfiined fpr £(.corued, which rept^ was then dne, and stiU remain? 
 diip, wittiQut fvf?theT setting forth the grant, tpnure, demise, or title 
 of ,si:fch landlord or landlords, lessor or lessors, owner qr owners of 
 sixch nianor. 
 
 Tl^e common avowry or cognizance should show that the 
 ten^npy coptinued up to. the time of the making of thg distress («). 
 if the tenancy was determined at th.e time of the distress, but the 
 teii^nt gtill ppntipued in possession, and the distress was fqi^nded 
 on 8 Anne, c. 14 (arafe, p. 522)^ the avowry ^hquld be based on 
 tl^t sta|;iite. Af|;^r setting ^prth the tenancy, the amqunt qf rent 
 in arrear, ^l^e t|me when it bepame due, f^c. {y), the avpwry pr 
 cognigE^flpe avpwg generally |;hat the defendant took the cattle, 
 goods, §.nd ehattgls ii| tlip clq|^ in |;he declaratipn mentioned, as 
 a^d fcj^. ^^ distress for the rent du| and in arrear, or that he tqpk 
 tliem as bailiff of the landlprd. The landlord who authorized the 
 distress, and the bailiff who seized by his directions, may both join 
 in making the common avowry and cognizancq. 
 
 The general form of avowry, authorized by 11 Geo. 2, c. 19, 
 
 (t) Com. Dig. Pleadeb, 3 K. 11. Dover 5 & 6 Wm. 4, u. 76, s. 76; ■post, o\. 12, s. 1. 
 V. SaviUpgs, 2 ;^I. & Rob. 544. (x) WiUiarn? v. Stiven, 9 Q. B. 14. 
 
 (»)■ Mellor y.'L^her, 1 EU. & Bl. 619; (y) Boshmge y. Caddy, 7 JBxoh. 840. 
 
SECT. 3.] AVQWRIES IN BEPLEYIN. 559 
 
 s. 22, applies to rents only ; but penalties for breaches of covenants 
 respecting the cultivation of the demised premises, granted by 
 4eed, tp be leyied by distress, may be ^ireatgd as rent (z). 
 
 A cogniz£(,nce by a defendant, as bailiff of an exepntor, for rent 
 due to the testator is supported by proof of a distress by him in 
 the name of the tegtator, and by his direction, but after his death, 
 such distress, though made before probate, having been afterwards 
 adopted and ratified by the executor (a). 
 
 Avowries for double rent, under the 11 Geo. 2, c. 19, s. 18, 
 flipuld show the nature of the tenancy: that the tenant had 
 power to determine it by giving notice to quit ; that he did 
 give notice to quit at a time :qaentioned in such notice ; that the 
 tenancy became thereby determined ; that the defendant did not 
 deliver up possession at the time mentioned in such notice, and 
 then became liable to pay double the reiit wliich he would other- 
 wise have paid ; that a certain specified sum, being half a year, or 
 three quarters of a year, of such double rent, became due, and that 
 the plaintiff took the goods in the decla.ration mentioned as and 
 for a distress for such rent (6). 
 
 Avowries hy joint-tenants, coparceners, and tenants-in-common. — 
 We have seen that any one of several coparceners and co-heirs in 
 gavelkind who_ has levied a distress may ayow and justify the 
 distress in his own right, and make conusance as the bailiff of the 
 ;pthers, without averring or proving any express authority from 
 them to distrain {ante, p. 524). If the distress is made by a bailiif 
 or agent on behalf of all, ^,11 must join in the avowry and con- 
 usance (c). Tenants in common, on the other hand must a,vow the 
 taking of the distress in respect of their several shares. Thus, if 
 three tenants in common distrain thirty feasts, one of them nanst 
 avow for ten, the other for ten, anfi the third for ten more {d). But 
 pne of several tenants in common may, as lye have seen, distrain 
 and avow for his own share of the rent {ante, p. 525). 
 
 Pleas in iar to an avotury — Non tenuit — Biens in arrere. — The 
 plaintiff may, by a pleg, in bar, deny generally all the allegations 
 contained in the avowry {e), unless he is compelled by a judge's 
 order, under the provisions of the Conimon Law Procedure Act, tp 
 traverse separately the tenancy, the fact of the rent being in arre§,r, 
 or the authority to distrain. The plea of non tenuit is a traverse gf 
 the demise stated in the avowry. . It alleges that the plaintiff, did 
 not hold the said messuage or tenement, land and premises, under 
 
 (z) PolUtt T. Forrest, II Q. B. 967. 6th ed. 
 
 (a) Whitehead v. Taylor, 10 Ad. & E. (c) Stedman v. Sates, 1 Salic. 389. 
 
 210. W Litt. -sec. 314— 317. PhilpoU \. 
 
 (i) Eumherstone v. Dubois, 10 M. & Dobbinson, 3 M. & P. 320. 
 W. 765. See Addison on Contracts, 316, (e) Trent v. ffunt, 9 Exoh. 20. 
 
560 . WEONGFUL DISTRESS. [CHAP. XI. 
 
 the alleged demise thereof in the avowry mentioned. Under this 
 plea it may he shown that the tenure alleged in the avowry was 
 extinguished and put an end to before the time of the distress, 
 either by twenty years' adverse possession under the statute of 
 limitations (/), or by a transfer of the landlord's reversionary 
 estate to an assignee or mortgagee who has demanded the rent {g). 
 
 The plea of riens in arrere simply alleges that no part of the 
 rent alleged in the avowry to be in arrear was in arrear. Under 
 this plea payments made to a ground landlord, or other incum- 
 brancer having claims paramount to the claim of the immediate 
 landlord making the distress, may be given in evidence in reduction 
 of the rent, as such payments are always presumed to be authorized 
 by the landlord, he being obliged to protect the tenant from them, 
 and are treated as payments of rent by the tenant (h). But pay- 
 ments which are not a direct charge upon the demised premises 
 cannot be given in evidence in satisfaction and discharge of the 
 rent, unless they were directed or sanctioned by the landlord (*). 
 The meaning of the plea of Hens m arrere is, that the plaintiff at 
 the time of the distress was in arrear to nobody ; and if he has not 
 paid anybody, he cannot, under this plea, contest the defendant's 
 right to the rent (h). 
 
 Payment of money into court. — If goods have been taken in 
 closes A and B and the defendant can justify as to part of the 
 taking in A, but not as to the taking in B, as, for instance, if B 
 was not part of the demised premises, the defendant may give up 
 the case wholly as to B, by paying money into court in respect of 
 the goods there taken, and partially as to A, by paying in respect 
 of those which he does not propose to justify the taking of, and 
 making avowry as to the residue (I). 
 
 Of the plea of not guilty " ly statute " in actions of trespass, or 
 iipon the case for an unlawful distress. — By the 11 Geo. 2, c. 19, 
 s. 21, it is enacted, that in all actions of trespass, or upon the case, 
 against persons entitled to rents or services, their bailiffs or other 
 persons, relating to any entry upon premises chargeable with such 
 rents or services, or to any distress or seizure thereupon, it shall be 
 lawful for the defendants to plead the general issue, and give the 
 special matter in evidence, inserting in the margin of the plea the 
 words " by statute " (m). Under the plea of not guilty " by 
 
 (/) De Beauvoir v. Owen, 5 Exch. 177. (i) Wightman, j;, Wheeler v. Brans- 
 
 (g) Wheeler v. Branscomhe, 5 Q. B. 379. combe, 5 Q. B. 379. 
 
 (A) Jones v. Morris, 3 Exch. 746. As (I) Lambert v. Hepworth, 2 Q. B. 729 ; 
 
 to payments under the Metropolis Man- 3 & 4 Wm. 4, c. 42, s. 21. As to pay- 
 
 agement Amendment Act, 1862, 25 & 26 ment' iuto court generally, see post, 
 
 Vict. c. 102, s. 96, Bee Ryan v. Thompson, ch. 21. 
 
 L. E., 3 C. P. 144. (m) Reg. Gen. Hil. Term, 16 Vict. E, 
 
 (j) jPmies T, Stacey, 12 Ad. & E, SU, 21 ; 1 EJl. <fc Bl, App. Ixxwii, 
 
SKCT. 3.] ACTIONS — PLEADINGS. 561 
 
 statute," therefore, tlie defendant may give in evidence that he 
 entered the plaintiff's house under a warrant of distress for rent, 
 and was forcibly turned out of possession, and that he thereupon 
 re-entered, and hroke open the door of the house, in order to seize 
 the plaintiff's goods. Everything which he might lawfully do in 
 order to make the distress is admissible in evidence under this 
 plea (n). The plea puts in issue not only the matter of justification, 
 but the tenancy and ownership of the goods (o). 
 
 A plea of justification of trespass on the ground that the plaintiff 
 had a right to distrain, must show that the plaintiff had such an 
 estate and interest in the premises as would entitle him to distrain (p) ; 
 or that he had some express authority or licence to distrain. The 
 common avowry of a distress for rent does not set out title, because 
 the 11 Geo. 2, c. 19, s. 22, gives a statutory form, and therefore a 
 lawful demise is implied ; but that statute is confined to actions of 
 replevin. 
 
 Pleas justifying an entry upon land for the purpose of distraining 
 goods fraudulently removed, should set forth the fact of the tenancy, 
 of rent being in arrear, and of the fraudulent removal of the goods 
 by the tenant from the house demised to him by the defendant, in 
 order to prevent the defendant from distraining the goods, and the 
 deposit of the goods in the plaintiff's house, and should then go 
 on to justify the entering the house in order to seize the "goods 
 under the provisions and in the mode prescribed by the 11 Geo. 2, 
 c. 19, s. 1 (2). 
 
 Pleas justifying the seizure of animals damage feasant, should set 
 forth the defendant's possession of a close or of land whereon certain 
 cattle of the plaintiff were trespassing and doing damage, and that 
 the defendant thereupon took the cattle by way of a distress for the 
 damage, and drove them to a common pound and there impounded 
 them, and that this act of the defendant is the injury complained of 
 by the plaintiff in his declaration (r). If the plaintiff's cattle 
 strayed from a high road into the defendant's close, through the 
 defendant's neglect to repair fences, which he was bound by statute 
 or prescription to repair, this must be replied specially by a repli- 
 cation, alleging that the cattle were lawfully using the highway, 
 that it was the duty of the defendant to have fenced against the 
 highway, and that he neglected so to do (s). 
 
 Plea of a recovery of the goods in an action of replevin. — ^A plea 
 by the -defendant, setting forth that the plaintiff commenced and 
 
 (n) Eagleton T. Gutteridge, 11 M. & W. combe, 2 M. & W. 349. Rkh r. WooUey, 
 
 4g9 7 Bing. 651. BowUr v. Nicholson, 12 
 
 (0) WiUiams T. Jones, 11 Ad. & B. Ad. & B. 341. 
 643 ; and see post, ch. 21. (»•) Bond v. Downton, 2 Ad. & E. 26. 
 
 {p) Pinhorn v. Sovster, 8 Exch. 138. (s) QoodMyn v, Qhpeley, 4 H. & N, 
 
 (o) See the forms in Nm-man v. Wes- 631, 
 
 
 
662 WRONGFUL DISTEESS. [CHAP. XI. 
 
 prosecuted an action against the defendant in the county court of 
 the district within which the distress was taken, and obtained the ■ 
 judgment of the court for the return of the goods, and has recovered 
 his goods, and damages for the taking and detaining them, is a good 
 plea in bar to an action for an excessive distress, as it shows that 
 the plaintiff has already had his remedy (t). 
 
 Evidence at the trial — Proof of distress. — In order to establish 
 the fact of a distress having been made by the defendsint upon the 
 goods and chattels of the plaintiff, it is not necessary to prove an 
 actual seizure of the plaintiff's goods. If the landlord's agent goes 
 upon the plaintiff's premises, and declares that he has come to dis- 
 train for rent, and that nothing shall be removed, this, as we have 
 seen, is evidence of the making of. a distress, though no single 
 article is touched by such agent {ante, p. 535). Where a warehouse- 
 keeper or lodging-house keeper refused to let the goods and chattels 
 of his tenant or lodger be removed until rent claimed by him to be 
 due was paid, this was held to be evidence of the making of a 
 distress (ante, p. 536). So, where the defendant's broker appeared 
 upon the plaintiff's premises, and said, " Unless you pay me 211. 
 for rent, and three guineas for expenses, I shall take your goods," 
 and the plaintiff paid the money, it was held that it did not lie in 
 the defendant's mouth, after receiving the money, to say there was 
 no distress (%). 
 
 Proof of no rent being due, and of unlawful and excessive dis- 
 tresses. — If the plaintiff sues the defendant on the statute for 
 distraining when no rent was due, he must prove that he held the 
 land on which the distress was taken as tenant to the defendant, 
 and must in general produce and prove the lease, if he ho^ds under 
 a written demise. If the lease is in the hands of the landlord, he 
 should give the latter notice to produce it; he should then prove 
 the amount of the rent, the period at which it became payable, and 
 that it had been paid to and received by the landlord or his 
 authorized agent, at the time of the levy of the distress. If the 
 plaintiff complaias of the wrongful seizure of goods not distrain- 
 able, he must prove the nature and character of the goods seized, 
 and that they were privileged from distress (anie, pp. 526, et seq.), 
 and it is for the defendant to show any circumstances rendering the 
 distress in the particular instance lawful, such as that there were 
 no other distrainable goods on the demised premises sufficient to 
 satisfy the rent (ante, p. 527). If the plaintiff complains of an 
 excessive distress, he must prove the tenancy ; the amount of rent 
 payable to the defendant ; the value of the goods distrained, and 
 
 (i) PkiUips V. Berryrrum, 2 Doug. 288; ^osi, ch. 21. 
 (w) Hutckins v. Scott, 2 M. & W. 811. 
 
SECT. 3.] ACTIONS — EVIDENCE. 56B 
 
 that some actual or special damage has been sustained from the 
 defendant's having distrained and taken an unreasonable quantity of 
 the plaintiff's goods. It is not, as we have seen, for every trifling 
 excess that an action is maintainable for an excessive distress. It 
 must be disproportionate to some considerable extent {ante, p. 538), 
 and must be productive of actual loss or damage to the plaintiff (a;). 
 
 If the ground of action is that the defendant distrained for 
 more rent than was reaUy due, the plaintiff must prove that he 
 tendered to the defendant the sum really due, with enough to cover 
 the lawful charges of the distress (jj) ; or that the defendant sold 
 the things distrained, and realised by the sale of them more than 
 was sufficient to satisfy the rent really due with the costs of the 
 distress (z). A distress may, as we have seen, be excessive, although 
 the goods when sold may realise less than the rent and expenses (a). 
 
 Proof of material averments in the declaration.— The statement 
 in a declaration for an unlawful distress of the name of the person 
 to whom the rent distrained for is due, is material, and must be 
 proved as laid (&). But it is not necessary to prove the precise 
 amount of rent alleged in the declaration to be due (c). 
 
 Proof that the defendant ordered or authorized the distress. — In 
 order to prove that the distress was made by the order or authority 
 of the defendant, the warrant should, if the distress was authorized 
 by warrant in writing, be produced and proved, or a notice to pro- 
 duce it should be given to let in secondary evidence of it ; but it is 
 not necessary, as we have seen, to prove the warrant in order to fix 
 the defendant as the author of the unlawful proceeding. His 
 conduct, and acts, and admissions in the matter are evidence against 
 him, although he has clothed his agent with an authority in writing. 
 If he has received the money realised by the distress (ante, p. 557), 
 or has personally interfered with the impounding or sale of the 
 goods, or has ratified and adopted the act of the broker levying the 
 distress, these circumstances are admissible in evidence against him, 
 to show that he ordered or authorized the distress (see ante, p. 556, 
 erndpost, ch. 20, s. 2). 
 
 When proof of special damage is necessary. — ^We have already 
 seen that the 11 Geo. 2, c. 19, s. 19, provides that where a distress 
 has been made for rent justly due, and an irregularity or unlawful 
 act has afterwards been committed by the distrainor or his agents, 
 the distress is not to be deemed unlawful, nor the parties making 
 it trespassers ah initio, but that the party aggrieved by the unlawful 
 
 (x) Lucas v. TaHeton, 3 H. & N. 120 ; (z) Tanmd v. LeyUnA, 16 Q. B. 680. 
 27 Law J., Bxch. 246. Piggott T. Births, French v. PhUUps, 1 H. & N. 567. 
 1 M & W 450. (") 'S'™*^ '^- A.skf(!frtk, ante, p. 538. 
 
 («) Glynn v.TJiomas, 11 Bxcli. 878 ; (6) Ireland t. Johnson, 1 B. N. C. 166. 
 
 25 Law J., Exch. 125. («) Owinnett v. PhilUps, 3 T. K. 643. 
 
 Sells V. ffoare, 8 Moore, 454. 
 
 2 
 
564 -WKONGFUL DISTRESS. [CHAP. XI. 
 
 act or the irregularity, may recover full satisfaction for the special 
 damage he has sustained and no more (ante, p. 545), and that, to 
 enable a tenant to maintain an action against his landlord for an 
 irregularity in selling goods distrained, it must be proved that he 
 has sustained actual damage from the wrongful act, and if no such 
 proof is forthcoming, it is the duty of the judge to direct a verdict 
 for the defendant (d^. 
 
 Proof of waiver of right of action. — A. right of action for an 
 unlawful or excessive distress once vested, can only be destroyed 
 by a release under seal, or by the acceptance and receipt of some- 
 thing in satisfaction of the wrong done. A tenant, therefore, does 
 not waive his right of action for an excessive distress, though he 
 afterwards enters into a written agreement with his landlord 
 respecting the sale of the effects seized (e). 
 
 Proof of tenancy as between plaintiff and defendant, if not 
 admitted upon the record, may be established by parol evidence of 
 the fact, notwithstanding that the tenancy has been created by a 
 lease or agreement in writing not produced (/). Proof of payment 
 and acceptance of rent will establish the fact of the relationship 
 of landlord and tenant between the person paying and the person 
 receiving the rent, notwithstanding the existence of a written con- 
 tract of demise between them which is not produced (g). And " I 
 have no doubt," observes Bayley, J., " that submitting to a distress 
 acknowledges the tenancy. The landlord after distraining cannot 
 bring an ejectment ; and the occupier, if he does not replevy, is, I 
 think, precluded from denying the title of the landlord " (h). But 
 payment of rent under a distress is not a conclusive admission of 
 the title of the distrainor. Counter-evidence may be given on the 
 part of the tenant to show that the distrainor never had any 
 title (i). 
 
 Proof of payment of rent by a tenant to an agent of the land- 
 lord who has received it on account of the landlord, and paid it 
 over to him, is evidence against the tenant that he holds of such 
 landlord, although the latter was unknown to him, and he supposed 
 at the time he paid the money that the agent received it on account 
 of another person (Jc). But proof of payment of rent to a parti- 
 cular individual claiming to be entitled to receive it, is only primd 
 facie evidence of a tenancy under the claimant, and the presump- 
 tion of the particular tenancy may be rebutted by proof that 
 
 (d) Eodgers v. ParJcer, 18 C. B. 112; & Ey. 448. 
 
 25 Law J., 0. P. 220. Lucas t. Twrleton, (ij) Doe v. Morris, 12 East, 237, 239n. 
 
 3 H. & N. 116. (A) Panton v. Jones, 3 Oampb. 372. 
 
 (e) Wilhughhy v. Backhouse, 2 B. & C. Cooper t. Blamdy, 4 M. & So. 569 : 1 B. 
 821. Baylis v. Usher, 4 M. & P. 790 ; 7 N. C. 45. 
 
 Biff- 153. (i) Knight v. Cox, 18 0. B. 645. 
 
 (/) Sex y, BuU, 7 B. & C. 611 ; 1 M. {h) Eitchings v. Thompson, 5 Exoh. 54. 
 
SECT. 3.] ACTIONS — EVIDENCE — DAMAGES. 565 
 
 the payment was made by mistake or imder a false representa- 
 tion (I). 
 
 Proof of an attornment by the tenant to a receiver appointed 
 by the Court of Chancery, is proof of a tenancy by estoppel as 
 between the tenant and the receiver ; but the attornment does not 
 enure to the benefit of the person subsequently declared by the 
 court to be the owner of the property (m). 
 
 Proof of the Tiature and terms of a tenancy will best be effected 
 by production of the written demise, where the tenant holds under 
 a lease or agreement in writing. If the contract is in the hands of 
 the defendant, the plaintiff who desires to prove the amount of the 
 rent, the time at which, or the circumstances under which, it 
 became due, should give notice to the defendant to produce it at 
 the trial, in order to let in secondary evidence of its contents (n). 
 The old rule of law, that the terms of a tenancy or the amount of 
 the rent can be proved only by the production of the writing when 
 the tenant holds under a written contract of demise, does not 
 exclude evidence of admissions and acknowledgments of those 
 terms made by a defendant holding under a lease in writing not 
 produced. It has been held that whatever a person says, or his acts 
 amounting to admissions, are evidence against himself, although 
 they relate to the contents of some deed or writing, and go to 
 prove the nature and contents of a written instrument not pro- 
 duced (o). Where, therefore, a defendant held lands under a 
 written demise, it was held that the defendant's verbal declara- 
 tions of the existence of the tenancy, and of the amount of the 
 rent paid by him to the plaintiff, were admissible in evidence 
 against him, without the production of the writing under which 
 he held(p). 
 
 Where on the letting of lands the terms of the demise were 
 read from a printed paper by the landlord's agent, and the 
 tenant entered and occupied, and paid rent, it was held that the 
 agent might give oral evidence of the terms, using the printed 
 memorandum to refresh his memory (q). 
 
 Damages recoverable — BoMe valioe. — By 2 W. & M. sess. 1, c. 5, 
 s. 5, it is enacted that if any distress and sale be made by virtue 
 and under colour of that Act for rent pretended to be arrear and 
 due, where no rent is arrear or due to the person distraining, the 
 owner of the goods distrained and sold may by action of trespass. 
 
 (I) Fenner v. Duplock, 9 Moore, iO. J., C. P. 193. Earle t. Picken, 5 0. & P. 
 
 {m) Evans Y.Matthias, 7 m.&B\.&90; 5*2. c. -,1 , ivj ^ r ok^ 
 
 26 Law J , Q. B. 309. (i') toward v. Smith, 3 M. & Gr. 254 ; 
 
 (n) Post oh 21 3 Sc. N. R 574. 
 
 (0) SlatierieY. Pooley, 6 M. & W. 668. (?) Bolton {Lord)7. TowUn,5 AA. & E. 
 
 BouUer V. Peplow, 9 0. B. 493 ; 19 Law 863. 
 
566 WKONGFUL DISTKESS. [CHAP. XI. 
 
 or upon the case, against the person distraining, recover double the 
 value of the chattels so distrained and sold, together with fuU costs 
 of suit. When an action is brought upon this statute for the 
 seizure and sale of goods for rent pretended to be in arrear and due, 
 when in truth no rent is in arrear or due to the person distraining^ 
 and the plaintiflF claims doiible the value of the goods distrained, 
 the jury should be directed, if they find for the plaintiff, to 
 ascertain in the first place the actual value of the goods, and then 
 to give damages to the plaintiff to the amount of double the value. 
 If the jury assess the damages generally at a certain sum, and it 
 turns out that they have assessed only the actual value or the 
 single damage, the mistake cannot be rectified, and Judgment 
 cannot be entered up for the double or treble value. But if they 
 expressly find and assess only the actual value, the plaintiff may 
 apply to the court to have judgment entered up for double value, 
 according to the statute (r). 
 
 Whenever the landlord has distrained, without any right or 
 authority to distrain, there is a trespass upon, and injury to, the 
 realty, independently of the trespass in regard of the seizure of the 
 chattels, and the tenant is entitled to recover substantial damages 
 for the disturbance of the peaceable possession of his house, as 
 well as for the unlawful seizure of his goods. 
 
 The damages recoverable where the entry upon the premises was 
 effected in an unlawful manner, and the parties had no right to 
 touch the goods after they had entered, by reason of the trespass in 
 entering, are the same as would be recoverable from a stranger who 
 had broken and entered the house without any colour of authority, 
 and it does not lie in the defendant's mouth to say, in mitigation of 
 damages, that he -has sold the goods, and applied the proceeds of 
 the sale in satisfaction and discharge of the rent (s). Where a 
 distress is wrongful, the party distrained upon has a right to be 
 replaced in the situation in which he was before the seizure, for 
 "parties are not to extort even what is 'justly due by the improper 
 execution of a warrant." If goods, therefore, wrongfully distrained 
 have been sold, or money has been paid to procure the liberation 
 of goods distrained, the value of the goods in the one case and the 
 money paid in the other wiU be recoverable, as well as any special 
 damage that may have been sustained, and the landlord cannot 
 appropriate the money he has received by trespass and wrong ia 
 payment pf the rent due to him (t). 
 
 Recovery of special damage, — ^We have already seen that by the 
 
 (r) Masters v. Fwrris, I C. B. 716; post, 146. 
 
 ch. 21. Eboovbey op Dodble and (t) Attach v. Sramwett, 3 B. & S. 520 ; 
 
 Tbbble Damages. 32 Law J., Q. B. 146. Sowell v. Cham- 
 is) A ttack V. Brcmmll, 32 Law J., Q. B. pion, 6 Ad. & E. 407. 
 
SECT. 3.] DAMAGES EECOVEBABLE. 567 
 
 express terms of the 11 Geo. 2, c. 19, s. 19, the party injured by 
 an unlawful act committed after a lawful distress, is only to recover 
 the amount of damage he has actually sustained. This damage, 
 in the case of a wrongful seizure and sale of growing crops, 
 is the difference between the amount for which the crops 
 would have been sold if the sale had been regular, and what 
 they actually sold for; and where there is no difference, or it 
 is proved that the crops were sold for more than they were worth, 
 no damages are recoverable, and the defendant is entitled to a 
 verdict (m). 
 
 In an action for selling goods distrained for rent without an 
 appraisement, and without complying with the provisions of 2 Wm. 
 & M., sess. 1, c. 5 {ante, p. 541), the measure of damages is the 
 real value of the goods sold minus the rent. The wrong-doers 
 cannot get off by handing over to the plaintiff the mere proceeds 
 of the sale {x). 
 
 In an action for an excessive distress, where the excess consists 
 wholly in seizing growing crops, the probable produce of which 
 is capable of being estimated' at the time of the seizure, the plaintiff 
 is not entitled to recover the full value of the crops beyond 
 the amount for which the distress ought to have been levied. 
 " The true measure of damage is simply a compensation for the 
 additional expense of a distress, and of keeping possession of that 
 part of the crops which it was unnecessary to take during the 
 time of possession; and some compensation for the loss of the 
 absolute ownership and power of disposition for the same time ; 
 or, if the tenant has replevied, then a compensation for the 
 additional expense and inconvenience of replevying to a greater 
 amount " (?/). 
 
 Where the plaintiff in his declaration for a wrongful distress 
 claimed damages for the loss of divers lodgers, without naming any. 
 Lord EUenborough refused to allow him to prove that he had in 
 fact lost a lodger, because the name of the lodger had not been 
 specified in the declaration («). 
 
 If the landlord takes some things that are distrainable, and 
 other things which are not, this does not render the distress 
 wrongful ah initio ; but the wrong is limited to the seizure of the 
 goods which were not distrainable, and the tenant is entitled to 
 recover only the actual damage sustained by him from the seizure 
 of those particular chattels (a). In respect of the thiags not 
 
 (u) Bodgers t. Parlixr, 18 C. B. 112. Biggins v. Goode, 2 Or. & J. 367. Whit- 
 
 hums T. Twrleton, 3 H. & N. 116. Proud- worth y. Maden, 2 C. & Jf. 517. 
 love T. TrenOow, 1 Cr. & M. 326. (y) Piggott t. BvrUes, 1 M. & "W. 451. 
 
 (x) Knight v. Egerton, 7 Bxch. 407. (z) Westwood v. Cowne, 1 Stark. 172. 
 
 y J "^ ^ ' (a) Ha/rveyY.Pocock, 11 M. & W. 740. 
 
568 WRONGFDL DISTKESS. ' [CHAP. XI. 
 
 distrainable, the distrainor is a trespasser ab initio, and the full 
 value of them is recoverable (J\ 
 
 Nominal damages are recoverable in an action for an excessive 
 distress where no actual damage is proved (c). 
 
 (J) Keen v. Priest, 4 H. & N. 236 ; 28 Law J., C. P. 102. See further as to 
 Law J., Eioh. 157. Attach y. Bra/mwdl, damages, jposi, cli. 22. 
 ante, p. 537. Edmondson y. NuttaU, 34 (c) OhandUr v. Daalton, 3 H. & 0. 553 ; 
 
 34 Law J., Exch. 89. 
 
569 
 
 CHAPTEE XII. 
 
 OF ASSAULT AND BATTERY, AND WKONGFUL IMPRISONMENT. 
 
 Section I. — Of assault, battery, and may- 
 hem. — What constitutes an assault — 
 Assaults resulting from negligence — 
 Assaults by constables — Handcuffing 
 unconvicted prisoners — Assault and 
 battery — Mayhem and wounding — 
 Excusable and justifiable assaults — 
 Self-defence — Defence of the posses- 
 sion of a house or close, or of property 
 — Besiatance to a forcible entry — ^Pre- 
 servation of the public peace — Battery 
 and ■wounding in self-defence, or in 
 defence of the possession of tenements 
 or chattels. 
 
 Section II. — Of false imprisonment. — 
 Constructive imprisonment — Arrest by 
 warrant of justices — Arrest by con- 
 stables, peace-officers, and private indi- 
 viduals, without warrant — Arrest for 
 a misdemeanour — Arrest of the wrong 
 party — Arrest for malicious injuries to 
 property and certain indictable offences 
 
 — Arrest for the purpose of preserving 
 the public peace — ^Arrest of persons 
 disturbing divine service, of vagrants, 
 and indecent persons — Arrest under 
 ,the Merchant Shipping Acts — Of a 
 principal by his bail — Arrest for 
 offences within the metropolitan police 
 district — Arrest by servants of railway 
 companies — Detention of deserters — 
 Imprisonment of lunatics. 
 Section III. — Of actions for an assauU 
 and battery, and for false imjarison- 
 meni.is-Statutory protection of con- 
 stables and their as-sistants from vexa- 
 tious actions -Limitation of actions 
 and notice of action — Tender of amends 
 — Payment of money into court — 
 Parties to be made plaintiffs and de- 
 fendants — Pleadings, defences, and 
 evidence — Damages recoverable — Co- 
 trespassers — Special damages — Mitiga- 
 tion of damages. 
 
 SECTION" I. 
 
 OF ASSAULT AND BATTERY, AND MAYHEM. 
 
 What constitutes an assault. — Every laying of hands on the 
 person of another, and every blow or push, constitutes an assault 
 and trespass, in respect of which an action for damages is 
 maintainable, unless the act can be justified or excused on the 
 ground that it was done in self-defence, or in defence of one's 
 property, or in obedience to some legal warrant or authority, or 
 was the result of inevitable accident. Every attempt, also, to offer 
 with force and violence to do hiirt to another, constitutes an 
 assault, -such as striking at a person with or without a weapon; 
 holding up a fist in a threatening attitude sufiiciently near to be 
 able to strike; presenting a gun or pistol, whether loaded or 
 unloaded, in a hostile and threatening manner, within gun-shot or 
 
570 ASSAULT AND BATTEEY. [CHAP. XII. 
 
 pistol-shot range, and near enough to create terror and alarm; 
 riding after a man with a whip threatening to heat him, or shaking 
 a whip in a man's face; advancing with hand uplifted in a 
 threatening manner with intent to strike, although the person is 
 stopped before he gets near enough to carry the intention into 
 effect (a) ; hitting at one man and unintentionally striking 
 another (6) ; cutting off the hair of a pauper in a poor-house (c) ; 
 throwing water upon the person of another (d) ; and any gesture 
 or threat of violence exhibiting an intention to assault, with the 
 means of carrying that threat into effect (e). But, as regards 
 threatening gestures, if the parties at the time the gestures are 
 used are so far distant from each other that immediate contact is 
 impossible, there is no assault (/ ). 
 
 Words accompanying a threatening gesture may deprive that 
 gesture of the character of an assault. Thus, where a man laid his 
 hand on his sword in a threatening manner, but accompanied the 
 gesture with the words, " If it were not assize-time I would not 
 take such language from you," it was held that the words showed 
 that the party did not then intend to use his sword, and that there 
 was no assault (g). And Lord Abinger is reported to have held, 
 that if a man presents an unloaded pistol at another, and at the 
 same time says that he does not intend to shoot him, this is no 
 assault (A). 
 
 The mere touching of a person, without force or violence, for. 
 the purpose of drawing his attention to some matter or another, is 
 not an assault, unless it is done in a hostile or insulting manner (i) ; 
 nor is it an assault to push gently against the person of another in 
 endeavouring to make a way through a crowd ; but if it is done in 
 a rude and violent manner, or there is any struggling or pushing 
 calculated to do harm, there will be both an assault and a battery (J). 
 
 An assault must be an act done against the will of the person 
 assaiilted, and therefore it cannot be said that a person has been 
 assaulted by his own permission. If the act is done in the course 
 of sport between persons taking liberties with each other by mutual 
 consent, there is no assault (k). 
 
 Assaults resulting from acts of negligence. — An assault may be 
 committed without any design or intention to commit an assault, 
 for if the person of one man is violently struck through the care- 
 
 (a) Bac. Abr. Assault, Ma/rtin t. Exch. 7ii. 
 Shopper, 3 C. & P. 373. Stephens v. (g) Tvhermlh T. Savage, 1 Mod. 3. 
 
 Myers, 4 C. & P. 350. Eex v. St. George, (h) Blake T. Bammrd, 9 C. & P. 628. 
 
 9 C. & P. 493. (j) Gowa/rd t. Baddeley, 4 H. & N. 481j 
 
 (6) James y. Campbell, 5 C. & P. 372. 28 Law J., Exch. 261. 
 
 (c) Forde v. Skinner, 4 C. & P. 239. (j) Cole v. Tvmer, 6 Mod. 149. 
 
 (d) Pwrsell v. Borne, 3 N. & P. 564. (h) Chnstopherson v. Bare, 11 Q. B. 
 
 (e) Head v. Cokeri 13 C. B. 860. 477. Heg. v. Martm, 9 C. & P. 214. S. v. 
 (/) PoUock, C.B., Cobbett r. Grey, i Johnson, 34 Law J., M. 0. 192. 
 
SECT. l.J MAYHEM AND WOUNDING. 571 
 
 lessness and negligence of another, this is an assault, and it is no 
 answer, as we ha-\^e seen, to say that it was done unintentionally 
 {ante, pp. 380, 381). Thus, if a man drives against and violently 
 upsets the plaintiff in his carriage, and knocks him down, or over- 
 turns the chair in which he is seated, the person thus striking the 
 plaintiff, or knocking him down, is guilty of an assault, although 
 he had no intention to commit an assault (I). 
 
 Assaults hy constables — Handcuffing uncoiwicted prisoners. — If a 
 constahle orders an unconvicted prisoner to be handcuffed when 
 there is po attempt to escape, nor any reasonahle ground to fear a 
 rescue, the constable will be responsible in damages for an 
 assault (ffi). 
 
 Assault and lattery. — A battery, as distinguished from an 
 assault, is where the person of a man is actually struck or touched 
 in a violent, angry, rude, or insolent manner {n). If a man is 
 violently jostled out of the way or spat upon (o), or has water, 
 stones, or dirt rudely thrown upon him {p), or has his hat insolently 
 knocked off, or his hair forcibly cut (§■), or his horse has been struck 
 so that it ran away and threw him to the ground (r), the person 
 guilty of the violence is liable to an action for an assault and 
 battery. "But every laying on of hands is not a battery. The 
 party's intention must be considered, for people will sometimes, by 
 way of joke or in friendship, clap a man on the back, and it would 
 be ridiculous to say that every such case constitutes a battery " (s). 
 A touch given by a constable's staff in order to engage the attention 
 of a person is not a battery {(). 
 
 Mayhem and wounding. — When the assault has been carried to 
 the extent of maiming or crippling, or of wounding a person, it of 
 course becomes of a much more serious character than a common 
 assault, and the person injured will recover heavy damages, unless 
 the maiming or wounding amounts to a felony, or can be justified 
 or excused in the manner presently mentioned. The old word 
 " mayme " or " mayhem," derived from the French word mayhemer, 
 or mehaigner, was used to signify any hurt done to a man's body, 
 whereby he was rendered less able in fighting either to defend him- 
 self or annoy his adversary ; such as the cutting off, disabling, or 
 weakening a hand or finger, striking out an eye or foretooth, break- 
 ing a bone, or injuring the head, or wounding a sinew, &c. (u). 
 
 (l) Hopper V. Reeve, 7 Taunt. 698. (r) DodmeO, v. Burford, 1 Mod. 24 ; 1 
 
 (m) Post, ch. 18, s. 2. QHJSm v. Cok- Sid. 433. _ , . , ^.„. 
 
 man, 28 Law J., Exoh. 134 ; 4 H. & N. («) Ld. Hardwicke, WiUiams v. Jones, 
 
 265. Wrigkt v. Court, 4 B. & C. 596. Hard. 301. 
 
 (n) Rawlings v. Till, 3 M. & W. 28. (0 Wiffin r. Kinca/fd, 2 B. & P. N. K. 
 
 (o) Heg. T. Cotesvxxrth, 6 Mod. 172. 472. Cowa/rd v. Badddey, ante, p. 570. 
 
 (p) PitmK T. Ho™, 8 Ad. &E. 604; («) Bae. Abr. Maihem. Beames's 
 
 4 N & P. 564. Glanv. p. 350. Bract, lib. 3, tr. 2. 
 (?) Forde r. SUnner, 4 0. & P. 239. 
 
572 ASSAULT AND BATTERY. [OHAP. XII, 
 
 Assault and lattery in self-defence. — If the assault is in self- 
 defence, and it can be shown that the plaintiff was the aggressor, 
 and assaulted the defendant in the first instance, the action will be 
 answered by a plea of son assault demesne, which is a plea alleging 
 that the plaintiff first assaiilted the defendant, who thereupon 
 necessarily committed the alleged assault in his own defence {v). 
 If one man strikes another, and the person struck, in the heat of 
 anger, and on the impulse of the moment, returns the blow with a 
 stick or bludgeon, the battery is excusable (w) ; but he has no 
 right to revenge himself, and if, when all the danger is past, he 
 strikes a blow not necessary for his defence, he commits an assault 
 and battery («). If a man strike another who does not immediately, 
 after resent it, but takes his opportunity, and then some time after 
 falls upon him and beats him, in this case son assault is no good 
 plea, and the second assault cannot be justified (3/). 
 
 Assault in defence of the possession of a house, or close, or of pro- 
 perty (a).— An assault and battery may be justified in defence of the 
 possession of a house or a close, or a vestry-room, or pulpit {a), or 
 in defence of the possession of goods and chattels by the person 
 entitled to the possession, and use of them (&). If one man enters 
 the house of another with force and violence, the owner of the 
 house may justify turning him out, without a previous request to 
 depart (c) ; but if he enters quietly, he must be requested to retire 
 before hands can be lawfully laid upon him to turn him out. If 
 he will not depart after having been requested so to do, the owner 
 may use as much force as is necessary ; and if the intruder resists 
 the attempts of the owner of the house to turn him out, he is guilty 
 of an assault upon the latter ; and if a policeman standing by sees 
 the resistance and witnesses the assault, he is justified in taking 
 the intruder into custody. A policeman may also, with the autho- 
 rity and at the request of the master of the house, himseK proceed 
 to turn out the intruder ; but he is not bound to do so unless he 
 pleases, as it is no part of a policeman's duty to do so {d). If a 
 shopkeeper puts goods into his shop window, ticketed at a certain 
 price, he is not bound to sell them at the price marked ; and if a 
 customer insists upon having the goods, and refuses to leave the 
 shop after having been requested so to do by the shopkeeper or 
 his servants, he may be turned out (e). If a man comes into a 
 public-house, and conducts himself in a disorderly manner, and the 
 
 {v) See 15 & 16 Vict. e. 76, sohed. B. 187. 
 
 (w) Oakes v. Wood, 3 M. & W. 150. (a) Jackson v. Oowrtenay,S Ell. & Bl. 8 ; 
 
 (x) Coleridge, J., Reg. v. Driscoll, Car. 27 Law J., Q. B. 37; Bro. Abr. Tbespass, 
 
 & M. 214. pi. 128. 
 
 (y) Holt, C.J., Cockcroft v. Smith, 11 (b) Roberts t. Taylor, 1 C. B. 147. 
 
 Mod. 43. (c) Weaver v. Bush, 8 T. E. 78. 
 
 (z) As to equitable defence in such a {d) Wheeler v. Whiting, 9 C. & P. 265. 
 
 case, see AUen. v. Walker, L. R, 5 Exch. (e) Timothy t. Simvpson, 6 C. & P. 500. 
 
SECT. l.J IN RESISTING A FOKCIBLE ENTRY. ' 573 
 
 landlord requests him to go out, and he wiU not, the landlord may- 
 turn him out, though the distxirbance does not amount to a breach 
 of the peace. To do tlais, the landlord may lay hands on him, 
 using no more violence than is necessary to turn him out. If the 
 person resists, and lays hands on the landlord, that is an unjustifi- 
 able assault upon the landlord (/)., 
 
 Assault in resistance of a forcible entry, or to prevent a seizure of 
 chattels. — ^If one person enters another's house or ground with force 
 and violence, the possessor or occupier of the house may oppose 
 force by force, and turn the person out without a previous request 
 to him to depart (g), unless the person making the forcible entry is 
 a constable or officer acting under competent legal authority ; for 
 there is a manifest distinction between endeavouring to turn a man 
 out of a house or close into which he has previously entered 
 quietly, and resisting a forcible attempt to enter Qi). The same 
 rule prevails with regard to a forcible seizure of goods and chattels, 
 for wherever force is tised to gain possession of a thing, " the force 
 may be opposed by force without more ado " (i), although the 
 person using the force has a right to the possession he seeks to 
 acquire. 
 
 Besistance to a forcible entry by a landlord. — ^A forcible entry is 
 expressly prohibited by the 5 Eich. 2, c. 7, even where entry is 
 given by law. And it is laid down, that if a man enters peaceably 
 into a house but turns the occupant out of possession by force, or 
 by threats frightens him out of possession, this is a forcible entry (j). 
 If a tenant who holds over after the expiration of his lease is dc facto 
 in possession of the house ; if he is sitting in his drawing-room, or 
 sleeping in his bed, and the landlord walks in at the front door, the 
 latter cannot be said to be in possession of the house any more than 
 the visitor who comes to make a morning call; and if he lays hands 
 on the tenant and turns him out, he cannot truly say that this was 
 done in defence of his (the landlord's) possession of the house, such 
 possession not having been gained until after the exercise of the act 
 of force constituting the assault. But if the tenant, or any other 
 person who has originally lawfully come into possession, voluntarily 
 leaves the premises vacant, the landlord or lawful owner may at 
 once enter, and take and keep possession. The previous possessor 
 is then lawfully dispossessed, and if he re-enters he commits a tres- 
 pass, and may be turned out of the house or off the land (k). 
 
 (f) Eowell V. Jackson, 6 C. & P. 725. (.;') Bosanquet, J., Nemlon v. Harland, 
 
 V. Watts, 11 Q. B. 311 ; 17 Law 1 So. N. R Hi ; 1 M. & Gr. 660 ; Bac. 
 
 J., Q. B. 73. -A-br. Forcible Entry. 
 
 \g) TvUay v. Reed, 1 0. & P. 6. (*) Browne v. Dawson, 12 Ad. & E. 
 
 (h) Polkm^horn Y.Wright, 8 Q. B. 206. 629. Taylor v. Cole, 3 T. R. 295. Taun- 
 
 (i) Green y. Goddard, 2 Salt. 641 ; ton T. Costar, 7 T. E. 431. Butcher v. 
 
 Owen 150. Butcher, 7 B. & C. 402. 
 
574 ASSAULT AND BATTERY. [CHAP. XII. 
 
 Assaults in preservation of the public peace. — Any person wIlo 
 witnesses an affray may, during the continuance of the affray, and 
 for the purpose of putting a stop to it, lay hands on the affrayers (I). 
 If he comes up in the midst of the affray, and forcibly interferes as 
 a peacemaker for the purpose of separating the combatants and 
 preventing further violence, he is not guilty of a trespass, unless 
 he uses more violence than is reasonably necessary for the pur- 
 pose (m). 
 
 Battery and wounding in self-defence, or in defence qf the pos- 
 session of tenements or chattels. — When a person has been assaulted 
 in such a way as to endanger his life, he is of course justified in 
 maiming and wounding the attacking party ; and if he has been 
 violently assaulted, or assaulted in such a way as to put him into' 
 bodily fear, the mayhem or wounding, if inflicted in self-defence, is 
 held excusable. " A man cannot justify a maim for every assault, 
 as, if A strike B, B cannot justify the drawing his sword and 
 cutting off his hand " («.). " If A strike B, and B strike again, and 
 they close immediately, and in the scuffle B maihems A, this 
 maihem is excusable ; but if, upon a little blow given by A to B, 
 B gives him a blow that maihems him, this maihem is not 
 excusable " (o). 
 
 " Cockcroft in a scuffle ran his finger towards Smith's eye, who 
 bit a joint off from the plaintiff's finger : the question was, whether 
 this was a proper defence for the defehdant to justify in an action 
 of mayhem ; and Holt, C.J., said that a man ought not, in the case 
 of a small assault, to give a violent or unsuitable return, but in 
 such a case plead what is necessary for a man's defence, and not 
 who struck first, for hitting a man a little blow with a little stick 
 on the shoulder is not a reason for him to draw a sword, and cut 
 and hew the other" {p). To justify a battery, the defendant must 
 show that there was an unlawful resistance on the part of the 
 plaintiff to the lawful acts of the defendant. If the plaintiff com- 
 plains of repeated blows, of his having been knocked down and 
 wounded, or of his having had his leg broken, it is no answer to 
 say that the plaintifl" intruded himself into the defendant's dwell- 
 ing-house, and made a disturbance, and would not go out, and 
 therefore the defendant knocked him down, or cut his head open 
 with a truncheon, or broke his leg, as no man is justified in resorting 
 to such severe measures to expel an intruder, unless resistance 
 has been offered ; in which case the plea of justification must allege 
 the fact of the resistance, and it mu^st be shown that the force 
 
 (0 Noden \. Johnson, 16 Q. B. 218. {») Per Cur. OooTc v. Beal, 1 Ld. Raym. 
 
 (m) Timothy v. Simpson, 6 C. & P. 177; 3 Salk. 115. 
 500. (o) Cockcroft t. Smith, 2 Salk. 642. 
 
 [p) Cockcroft T. Smith, 11 Mod. 43. 
 
SECT. 2.] m SELF-DEFENCE. 575 
 
 used was no more than' was reasonaMy necessary to overcome such 
 resistance (q). 
 
 In an action of trespass it was alleged that the defendant over- 
 turned a ladder upon which the plaintiff was standing, and threw 
 the plaintiff from it upon the ground, and the defendant pleaded 
 that he was possessed of a house and garden, and that the plaintiff 
 erected a ladder in the garden, and went tip the ladder in order to 
 nail a board to the house of the plaintiff ; that the defendant forbad 
 the plaintiff so to do, and desired him to come down ; and that, 
 upon the plaintiff's persisting in nailing the board, he gently shook 
 the ladder, and gently overturned it, and gently threw the plaintiff 
 from it upon the ground, doing as little damage as possible to the 
 plaintiff, and on demurrer to the plea it was held that the over- 
 turning and throwing down of the ladder, however gently, with 
 the plaintiff upon it, was unjustifiable, and the plea bad (r). 
 
 SECTION" II. 
 
 OF FALSE IMPEISONMENT. 
 
 False imprisonment is a trespass committed by one man against 
 the person of another, by unlawfully arresting him, and detaining 
 him without any legal authority. Every confinement of the person 
 is an imprisonment, whether it be in a common prison,'or a private 
 house, or in the stocks, or by forcibly detaining any one in the 
 public streets. False imprisonment may also arise from the arrest 
 or detention of the person by an officer without a warrant, or by 
 an illegal warrant, or by a legal warrant executed at an unlawful 
 
 time. 
 
 Constructive imprisonment. — Actual contact is not necessary to 
 constitute an imprisonment. Any restraint put upon the freedom 
 of another by show of authority or force, is sufficient to constitute 
 an imprisonment ; so that, if a person is restrained from leaving a 
 room, or going out of a house, without the presence of a constable, 
 this infringement of his personal liberty will constitute an imprison- 
 ment (s). If a bailiff who has a process against any one says to 
 him, " You are my prisoner, I have a writ against you," upon which 
 the person addressed submits, turns back, or goes with him, though 
 the bailiff never touched him, yet it is an arrest, because he sub- 
 
 (a) Ch-eaorv v. BUI, 8 T. E. 299. OaTces (s) Wwmer y. Siddiford, 4 C. B., N. S. 
 Y.Wood,2M.&W.7n 206. 
 
 (r) OolUni V. Benison, Say. Ido. 
 
576 FALSE IMPKISONMENT. [CHAP. XII. 
 
 mitted to tlie process {€). If a person is commanded by a constable 
 to go with him, and the order is obeyed, and' they walk together in 
 the direction pointed out by the constable, that is constructively an 
 imprisonment, though no actual force be used; for the party 
 addressed feels that he has no option, no more power of going in 
 any but the one direction prescribed to him, than if the constable 
 or bailiff had actual hold of him; and it is that entire restraint 
 upon the wiU. which constitutes the imprisonment {u). " If you 
 put your hand upon a man, or tell him he must go with you, and 
 he goes, supposing you have the right and the power to compel 
 him, that is an arrest " (x). But a partial restraint of the wiU of a 
 person is not sufficient to constitute an imprisonment. Thus, where 
 a part of a public footway on a bridge was taken and appropriated 
 for seats to view a regatta, and separated for that purpose from the 
 adjoining carriage-road by a temporary fence, and the plaintiff 
 insisted upon a right of way across the part so appropriated, and 
 climbed over the fence, but was stopped by two policemen, who 
 prevented him from proceeding onwards, but at the same time told 
 him he might go back if he pleased, which the plaintiff refused to 
 do, and remained where he was for half-an-hour, it was held that 
 this was no imprisonment {y). 
 
 Imprisonment hy order of a judge or judicial oflcer. — ^All judges 
 of a court of record have power to commit to the custody of their 
 officer sedente curid, by oral command, without any warrant made 
 at the time. This proceeds upon the ground that there is, in con- 
 templation of law, a record of such commitment, which record may 
 be drawn up when necessary. A prisoner is in lawful custody 
 although committed to prison for the purpose of being brought 
 up again for rehearing, without any warrant or commitment in 
 writing (2). 
 
 Arrest in execution of warrants of justices. — Constables making 
 an arrest in execution of a warrant of justices ought to have their 
 warrant with them, ready to be produced in case it should be 
 required. Not having it, they are not justiiied in making an 
 arrest, unless the arrest be made for felony, or suspicion of 
 felony (a). 
 
 Arrest ly constables without warrant. — A constable has no power 
 at common law to arrest a person without warrant on suspicion of 
 his having committed a misdemeanour_(&) ; but if he has reasonable 
 
 («) Grainger T. HiM, i B. N. C. 212. 166. ThrogmoHon v. AJUn, 14 M. & W. 
 
 (u) Williams, J., Bird v. Jones. 7 Q. B. 70. 
 
 743 ; 2 Inst. 589 ; Bull, N. P. 62. (a) GaUiard v. Laxtmi, 31 Law J., M. 
 
 (x) Tindal, C. J., Wood v. Lane, 6 C. & P. C. 1 23. 
 
 774. (J) Bowditch v. SalcMn, 5 Exch. 380. 
 
 (y) Bird t. Jones, 7 Q. B. 742. Griffin v. Coleman, 28 Law J., Exch. 134: 
 
 (a) Kemp t. NeviUe, 31 J^a^ J„ C. P. 4 H, & N. 26g, 
 
SECT. 2.] ARKTSST FOR FELONY WITHOUT WAKEANT. 577 
 
 cause to suspect that a person has committed a felony, he may 
 detain such person, not being an infant under the age of seven 
 years, incapable of committing a felony (c), until he can be brought 
 before a justice of the peace to have liis conduct investigated (d). 
 There is no standard or fixed rule as to what is reasonable ground 
 of suspicion which can be laid down as applicable to all cases. 
 "The charge," observes Watson, B., "may be reasonable ol unrea- 
 sonable with reference to the circumstances and the character of 
 the party making it. And while on the one hand a constable 
 ought to be protected in the execution of his duties, he ought on 
 the other to be guided in the discharge of those duties by ordinary 
 reason, care, and caution." Where, therefore, a travelling showman 
 told the defendant, a police-constable, at a fair, .that he had had 
 some harness stolen a year before, and that the stolen harness was 
 on the plaintiff 's horse, and the constable went to the plaintiff, and 
 asked him where he got the harness, and the plaintiff gave the 
 common thief's answer — that he had boiight the harness of a man 
 he did not know, and had given him a shilling for it, — whereupon 
 the constable took the plaintiff into custody, but it appeared that 
 the constable had known the plaintiff for twenty years as a 
 respectable householder, it was held that there was no reasonable 
 cause for the arrest, and that the constable was responsible in 
 damages for a wrongful imprisonment (e). But if one man charges 
 another with having robbed him, and desires a constable to appre- 
 hend the suspected thief, and the constable does so without warrant, 
 the constable is not responsible for the imprisonment because it 
 turns out that the charge is false, and that no felony had in fact 
 been committed (/) ; for if one man charges another with felony, 
 and requires an officer to take him into custody, and carry him 
 before a magistrate, " it would be most mischievous," observes Lord 
 Mansfield, " that the officer should be bound first to try and at his 
 peril exercise his judgment on the truth of the charge. He that 
 makes the charge alone is answerable. The officer does his duty 
 in carrying the accused before a magistrate, who is authorized to 
 examine and commit or discharge " (g). If an arrest by a constable 
 is in its inception wrongful, all other constables who aid and assist 
 in the continuance of the wrongful imprisonment are responsible 
 for the entire damage thereby caused to the plaintiff, although 
 they had no knowledge of the unlawfulness of the imprisonment,, 
 and intended to act in strict discharge of their official duty Qi).. 
 
 (c) Marshy, loader, 14C. B.,]Sr. S.535. (/) Hale, P. C, 177, Davis y. Jtussell, 
 
 (d) Beckwith v. PUlhy, 6 B. & 0. 635 ; 2 M. & P. 607 ; 5,Bing. 354, 
 
 9 D. & K, 487. Lawrence t. Hedger, 3 (g) Samuel v. Payne, 1 Doug. 360. 
 
 Taunt. 14. BucMey v. Gross, 82 Law J., (h) Griffin v. Coleman, 4 H. & N. 265 ; 
 
 Q B. 129. 28 Law J., Exch. 134,, Wi-ighi v. Court, 
 
 {e) Sogg V. Ward, 3 H. & N. 417 i %} 4 1; § C\ 096, 
 Law J., Exch, 443, 
 
578 FALSE IMPEISONMENT. [CHAP. XII. 
 
 Every unlawful detainer of a prisoner after lie has gained a right 
 to be discharged is a fresh imprisonment (i). 
 
 Arrest hy private persons without warrant. — "If treason or 
 felony he done," observes Lord Coke, " and one hath just cause of 
 suspicion, this is a good cause and warrant in law for him to arrest 
 any man ; but he must show in certainty the cause of his suspicion, 
 and whether the suspicion shall be just or lawful shall be deter- 
 mined by the justices in an action for false imprisonment brought 
 by the party grieved, or upon a habeas corpus " (k). There is this 
 distinction between an arrest for felony by a private individual and 
 a constable. In order to justify the private individual in causing 
 the imprisonment, he must not only make out a reasonable ground 
 of suspicion, but he must prove that a felony has actually been 
 committed by some person or another, and that the circumstances 
 were such that any reasonable person acting without passion or 
 prejudice would have fairly suspected that the plaintiff committed 
 it, or was implicated in it (I) ; whereas a constable, having reason- 
 able ground to suspect that a felony has been committed, although 
 in fact none has been, is authorized to detain the person suspected 
 until he can be brought before a justice of the peace to have his 
 conduct investigated (m). 
 
 Every person to whom property is offered to be sold, pawned, or 
 delivered, may, if he has reasonable cause to suspect that an offence 
 punishable by the Larceny Amendment Act, 24 & 25 Vict. c. 96, 
 has been committed on or with respect to such property, apprehend 
 the person offering the same, and take him, together with the 
 property, before a justice of the peace (n) ; and any person " found 
 committing " an offence punishable by the Act, except the offence 
 of angling in the daytime, may be immediately apprehended by any 
 person without a warrant, and taken before a justice, together with 
 the property, if any. — Hid. 
 
 Arrest for a misdemeanour. — ^Eegularly no private person can of 
 his own authority, without warrant, arrest another for a misde- 
 meanour, except for a breach of the peace, whilst the strife is going 
 on, and to prevent its continuance. But it is said in Hawkins' 
 "Pleas of the Crown," "that any private person may lawfully 
 arrest a suspicious night-walker, and detain him till he make it 
 appear that he is a person of good reputation. Also it hath been 
 adjudged that any one may apprehend a common notorious cheat 
 going about the country with false dice, and being actually caught 
 
 (0 Withers v. ffenley, Oro. Jao. 379. (m) Ld. Tenterden, BechwiO. v. Philby. 
 
 (k) 2 Inst. 52. JDoAns t. Russell, 5 Bing. 6 B. & C. 638 ; wnte, p. 577. 
 
 ,1^' m--'^-,*J*V^^''- (™) 24 & 25 Vict. c. 96, s. 103. See 
 
 .^ K^«"'^*WH/-' l^^*; ^- 1"^''*' ® <^- 32 & 33 Viet, c 12, s. 10; q, 57, s. 6, 
 &?. 536, ffaar,Booth,ZN.&M,3l6, 
 
SECT. 2.] AEREST EOB MISDEMEANOUR. 579 
 
 playing with them, in order to have him before a justice of the 
 peace, for the public good requires the utmost discouragement of 
 all such persons; and the restraining of private persons from 
 arresting them without a warrant from a magistrate would often 
 give them an opportunity of escaping " (o). " These cases in 
 Hawkins," observes Lord Tenterden, "are where the party is caught 
 in the fact, and the observation-there added assumes that the person 
 arrested is guilty. Where the case is only one of suspicion, the 
 arrest is unjustifiable. The instances in Hale of arrest on suspicion, 
 after the act has been done, relate to felony. In cases of mis- 
 demeanoiir, the parties aggrieved should apply. to a justice of 
 the peace for a warrant, and not take the law into their own 
 hands '' {p). 
 
 Arrest of the wrong party. — If the wrong person is arrested by 
 mistake, all persons causing the arrest are liable in trespass for the 
 injury (g), unless the party complaining has brought the injury 
 upon himself by his own misstatements and misrepresentations. 
 If there was lawful ground for arresting A, and B represents himself 
 to be A, and is arrested in conseq[uence of that representation, he 
 has obviously no valid ground for complaining of the imprisonment 
 which naturally resulted from his own act. But after he has given 
 notice that he is not the person he represented himself to be, he 
 cannot lawfully be detained for a greater length of time than may 
 be reasonably necessary to ascertain which of the several statements 
 he has made is in accordance with the truth (r). 
 
 Arrest for malicious injuries to property. — The statutes for con- 
 solidating the laws relative to malicious injuries to property, enact, 
 that any person found committing any offence under that Act may 
 be immediately apprehended without a warrant by any peace- 
 officer, or the owner of the property injured, or his servant or any 
 person authorized by him, and forthwith taken before some neigh- 
 bouring justice of the peace, to be dealt with according to law (s). 
 To justify an arrest under this statute, it must be shown that the 
 offence prohibited and made punishable was actually committed (f), 
 that the plaintiff was found and taken in the act {u), and that the 
 person arresting was either the occupier or the landlord of the 
 property injured. It must also be shown that the trespass was a 
 wilful and malicious trespass. 
 
 Wilful and malicio^is trespass.— A trespass can only be wilful 
 and malicious where it is committed by a person who knows that 
 he has no claim or pretence of right to enter the land. If he had 
 
 (o) Hawkins, P. C. 2, c. 12, s. 20. 495; 26 Law J., C. P. 267. 
 
 (p) Pox V. Gaunt, 3 B. & Ad. 800. (s) 24 & 25 Vict. c. 97, s. 61. 
 
 (o) Daws V. Jenkins, 11 M. & W. 754. («) Parrington v. Moore, 2 Bxch. 225. 
 
 {r} Dunston v, Paterson, 2 C, B., N, S. (a) Simmgns t, MULingen, 2 0. B. 530, 
 
 P P 2 
 
580 I'ALSE IMPEISONMENT. [CHAF. XII. 
 
 reasonable ground for supposing that he had a right, his conduct 
 can neither be called wilful nor malicious (x). 
 
 Arrest of persons committing indictable offences in the night. — It 
 is lawful for a private individual to apprehend any one who shall 
 be "found committing" any indictable offence in the night, i.e., 
 between 9 p.m. and 6 a.m., and to convey him or deliver him to 
 some constable or other peace-officer, to be conveyed before- a 
 justice of the peace, to be dealt with according to law (y). 
 
 Arrest for an assault and breach of the peace. — A constable may 
 ex officio arrest a breaker of the peace in his view, and keep him in 
 liis house, or in the stocks, till he can bring him before a justice of 
 the peace. '' If A be dangerously hurt, and the common voice is 
 that B hurt him, or if G thereupon come to the constable and tell 
 him that B hurt him, the constable may imprison B till he knows 
 whether A lives or dies, and until he can bring him before a justice. 
 But if there be only an affray, and not in view of the constable, it 
 hath been held he cannot arrest him without warrant " {£). If an 
 assault be committed within view of a constable, he has authority 
 to arrest the offender at the time, or as soon after as he conveniently 
 can, so as to come within the expression " recently," not only to 
 prevent a further breach of the peace, but also to secure the offender 
 for the purpose of taking him before a magistrate (a). If a constable 
 is preventing a breach of the peace, and any person stands in his 
 way with intent to hinder him from so doing; the constable is 
 justified in taking such person into custody, but not in giving him 
 a blow (&), nor in handcuffing him. 
 
 Various st&,tutes provide for the punishment of all persons who 
 shall assault peace-officers or revenue officers (c), metropolitan 
 police-officers {d), special constables and district constables (e), in 
 the execution of their duty, or who aid or incite others so to do. 
 
 Arrest duririg the continuance of an affray. — For the preservation 
 of the peace, any individual who sees it broken may restrain the 
 liberty of him he sees break.ing it, so long as the conduct of such 
 person shows that the public peace is likely to be endangered by 
 his acts. Any bystander may, and ought to, arrest an affrayer at 
 the moment of the affray, and detain him until his passion be 
 cooled, and then deliver him to a peace-officer, to be carried before 
 a justice of the peace, to be compelled^ to find sureties for keeping 
 the peace ; but a private individual who has witnessed an affray 
 cannot after the affray has ceased lawfully give the affrayers, or one 
 
 (x) Looker v. Hakomb, 12 Moore, 416 ; (6) Levy t. Ethewrds, 1 C. & P, 40 
 
 4 Bing. 183., (c) 9 Geo. 4, 0. 31, 9. 26. 
 
 (y) 14 & 15 Viot. c. 19, e. 11. (d) 2 & 3 Vict. 0. 47, s. 18. 
 
 {z) Hale, P. C. 587. (e) 1 & 2 Wm, 4, g. 41, b, 11 : 2 & 3 
 
 (») Seg, T, UgM, 27 X^aw J,, M, C, \. Yiet, c, 83, s. 8^ 
 
SECT. 2.] FOR BREACH OF THE PEACE. 58l 
 
 or some of them, into custody, unless the affrayers continue on the 
 spot, and refuse to disperse, and there is a reasonable apprehension 
 of a renewal of the aiFray (/). If the affrayers, on hearing or seeing 
 that the police-constables are coming, run away and disperse, they 
 cannot lawfully be pursued and taken by constables, or given into 
 custody by private individuals, for the affray that is then ended {g). 
 If during an affray a bystander calls up a policeman, and directs 
 him to take one of the affrayers into custody, the bystander 
 does not thereby render himself amenable to an action for false 
 imprisonment (A). 
 
 The continued ringing at a door-bell without cause or excuse 
 does not in itself amount to a breach of the peace, so as to justify 
 the arrest of a person by a private individual ; but it is eminently 
 tcalculated to lead to a breach of the peace, and if it is done and 
 persisted in within view of a constable, the latter may take the 
 aggressor into custody {i). And if the nuisance be committed 
 within the metropolitan police district, the offender may, if found 
 in the act, be apprehended by the master of the house (k). If 
 a man threatens to force his way into the house of another, 
 and collects a mob at the door, and refuses to go away when 
 directed so to do, the owner of the house is justified in directing 
 a constable to take him into , custody, in order to preserve the 
 peace {T). 
 
 What amounts to a breach of the ]f>eace. — It must be shown that 
 there was an actual breach of the peace in order to justify an im- 
 prisonment. It is not enough to show that the plaintiff " made a 
 great noise and disturbance, and refused to depart, and was in great 
 heat and fury, ready and desirous to make an affray and commit a 
 breach of the peace " (m). Disturbance and annoyance of a public 
 meeting, by putting questions to the speakers,. making observations 
 on their statements, and saying, " That's a lie," do not constitute a 
 breach of the peace (w). But if a man comes into a public-house, 
 and makes a very great noise and disturbance therein, and creates 
 alarm and disquiets the neighbourhood, his conduct amounts to a 
 breach of the peace, and justifies the landlord in giving him into 
 custody, if the disturbance occurs within view of a constable (o). 
 If a man stops before the door of a dwelling-house or shop, applying 
 abusive and opprobrious epithets to the inmates, and attracts a 
 
 (/) Timoiliy V. Simpson, 1 C. M. & (i) Simmons x. MiUingen, 2 0. B. 524. 
 
 E. 757. Price v. Seehy, 10 CI. & Pin. See^os«, p 583 
 
 go (I) Ingle v. Bdl, 1 M. & W. 516. 
 
 '(a^ Savnes t. Brewster, 2 Q. B. 385. (m) Wheder T. Whiting, 9 C. & P. 262. 
 
 W\ Derecourt T. Corbishley, 5 EU. & Bl. («) Wooding t. Oxley, 9 C. & P. 1. 
 
 ■Igi ' (o) Howell T. Jackson, 6 0. & P. 723. 
 
 li) Grant v. Moser, 5 M. & Gr. 123 ; 6 Webster v. Watts, 11 Q. B. 311 ; 17 hm 
 
 So. N. K. 466. J-> Q- ^' ''3- 
 
582 FALSE IMPRISONMENT. [CHAP. XII. 
 
 crowd, and refuses to desist when requested, he commits a breach 
 of the peace {p). 
 
 Arrest of 'pe/rsons disturbing divine service. — ^Any person who is 
 guilty of riotous, violent, or indecent behaviom in any church or 
 chapel, or duly certified place of religious worship, or in any 
 churchyard or burial-ground, or who molests, disturbs, vexes, or 
 troubles any preacher duly authorized to preach therein, or any 
 clergyman celebrating divine service, &c., may, immediately on the 
 commission of the misdemeanour, be apprehended. by any constable 
 or churchwarden of the place and taken before a magistrate; 
 23 & 24 Vict. c. 32, ss. 2, 3. To bring the offender within this 
 statute it must be shown that the disturbance was wilful and 
 intentional (cj). 
 
 Arrest of vagrants and persons fovmd committing acts of pvMic 
 indecency. — The Vagrant Act, 5 Geo. 4, c. 83 (r), authorizes any 
 person whatsoever to apprehend any one found committing any of 
 the acts of vagrancy specified in s. 4 of the statute, such as fortune- 
 telling, indecent exposure of the person in any street, road, or place 
 of public resort, or within view thereof, with intent to insult any 
 female ; gathering of alms by exposure of wounds and deformities ; 
 collection of alms by false pretences ; playing or betting in streets 
 or public places with instruments of gaming, &c. 
 
 Arrest under the Merchant Shipping Act. — By 25 & 26 Vict, 
 c. 63, s. 37, power is given to the master or other of&cer of any duly 
 surveyed passenger steamer and his assistants to detain persons 
 whose name and address are unknown, and who have committed 
 any of the offences specified in the Act, such as being drunk and 
 disorderly, and refusing to leave a steamer after request and return 
 or tender of the fare paid j molesting passengers after warning by 
 an of&cer not to do so ; persisting in entering or refusing to leave a 
 steamer having its full complement of passengers ; travelling, or 
 attempting to travel, without previous payment of the fare, with 
 intent to avoid payment ; proceeding beyond the distance for which 
 the fare is paid, with intent to avoid payment for the additional 
 distance ; refusing to leave the steamer on arriving at the point to 
 which the fare is paid ; refusing either to pay the fare, or to exhibit 
 the ticket or receipt for the fare, when demanded; wilfully 
 obstructing any of the crew in the execution of their duty upon 
 or about the steamer, &c. 
 
 Arrest of a principal ly his lail. — The bail may, whenever they 
 please, render their principal in their own discharge. They may 
 take him up even upon a Sunday, and confine him until the next 
 
 [p) Cohen \. Butkitson, 2 M. & W. (r) Amended by 31 & 32 Viot. c. 52 
 
 482. and 82 & 33 Vict. c. 99, b. 9. See ffi/rst 
 
 (s) WiUicma y. GlmisUr, 2 B. & C, 699. v. Moleshury, L. K., 6 Q. B. 130. 
 
SECT. 2.] FOE OFFENCES IN THE METEOPQLIS. 583 
 
 day^ and then render liim ; and the doing it on a Sunday is no 
 service of process, hut rather like the case where a sheriff arrests 
 by virtue of a process of court on Saturday, and the party escapes, 
 and the sheriff takes him upon a Sunday, which he may do, for it 
 is only a continuance of the former imprisonment (s). A witness 
 who has given baU is always supposed to be in the custody of his 
 bail, and may be taken and rendered at any time, even wliile he is 
 attending as a witness in a court of justice in obedience to his 
 subpoena (t). 
 
 Arrest for offences committed within the limits of the metropolitan 
 police district (u). — The 2 & 3 Vict. c. 47, s. 54, enables any constable 
 belonging to the metropolitan police force to take into custody, 
 without warrant, any person who, within his view (v), shall commit 
 any of the various offences therein specified, and forbidden within 
 the limits of the metropolitan police district. Among these offences 
 may be enumerated the exposing, to the annoyance of the inhabitants 
 or passengers, of horses for show or sale ; the exhibition of caravans, 
 shows, or public entertainments ; suffering ferocious dogs to go at 
 large unmuzzled (x), or urging one dog to attack another ; negligent 
 driving of cattle or animals (y) ; riding on the shafts of carriages 
 without holding the reins; furious driving; wilfully obstructing 
 public crossings and public thoroughfares (z) ; riding animals or 
 driving carriages, trucks, or barrows upon, or fastening horses 
 across, footways (a) ; rolling any cask, tub, hoop, wheel, &c.,' upon 
 footways, except for the purpose of crossing them, or loading or 
 unloading carriages ; disregarding the police regulations for prevent- 
 ing obstructions in public thoroughfares ; posting bills or papers 
 upon waUs and buildings without consent of the owner, or occupier ; 
 using threatening, abusive, or insulting words or behaviour, whereby 
 a breach of the peace may be occasioned ; blowing of horns, or any 
 other noisy instrument, for the purpose of calling persons together, 
 or announcing any show or entertainment, or for the purpose of 
 selling articles, or obtaining money or alms ; wantonly discharging 
 fire-arms, stones, or other missiles, to the danger of any person; 
 making bonfires, or throwing or setting fire to any firework; 
 wilfully and wantonly disturbing any inhabitant, by pulling or 
 ringing any door-beU, or knocking at any door without lawful 
 excuse, or wilfully and unlawfully extinguishing the light of any 
 lamp ; flying a kite, or playing at any game, to the annoyance of 
 
 SPer Cur. Anon. 6 Mod. 231. of Government stores. 
 
 Lyne, Ex pwrte, 3 Stark. 132. Horn («) Justice y. Gosling, 21 Law J., C. P 
 
 s 
 
 V. Swmford, D. & Ey. N. P. C. 20. 94. 
 
 (u) See 31 & 32 Vict. b. 67, s. i. And (as) See 30 & 31 Vict. e. 134, s. 18. 
 
 see the MetropoHtan Streets Act, 1867 ; {y) See 30 & 31 Vict. c. 134, s. 7. 
 
 30 & 31 Vict. c. 134; and 32 & 33 Vict. (z) See 30 & 31 Vict. c. 134, ss. 6, 15., 
 
 c. 12, s. 6, as to ships, persons, &o.,.sus- (a) Astocostermoiigers,streethawkers 
 
 peoted of unlawfully being in possession &c., see 31 & 32 Vict. o. 5. 
 
584 FALSE IMPKISONMENT. [CHAP, XII. 
 
 the inhabitants and passengers, or making a slide upon the ice or 
 snow in any thoroughfare. 
 
 Metropolitan police constables, and all persons whom they, shall 
 call to their assistance, are further empowered (s. 63) to arrest, 
 without warrant, any person who, within view of any such constable, 
 shall offend in any manner against the Act, and whose name and 
 residence shall be unknown to, and cannot be ascertained by, such 
 constable ; also, all disorderly persons disturbing the public peace, 
 whom he shall have good cause to suspect of having committed, or 
 being about to commit, any felony, misdemeanour, or breach of the 
 peace ; also, persons charged with aggravated assaults, where he has 
 good reason to believe that the assault has been committed, though 
 not within his view, and that by reason of the recent commission 
 of the offence a warrant could not have been obtained for the 
 apprehension of the offender ; also, all persons found committing 
 any offence punishable, either upon indictment, or as a misde- 
 meanour upon summary conviction, by virtue of the statute. 
 
 Any person, also, found committing an offence punishable, upon 
 indictment, or as a misdemeanour upon summary conviction, by 
 virtue of the Metropolitan Police Act, may be apprehended by the 
 owner of the property, on or with respect to which the offence shall 
 be committed, or by his servant, or any person authorized by him, 
 and may be detained until he can be delivered into the custody of 
 a constable, to be dealt with according to law (ss. 63, 66). In order 
 to justify a private individual in arresting and detaining an offender 
 within the 66th section, the latter must be" actually "found com- 
 mitting '' the offence, and must be taken flagrante delicto : it is not 
 enough to show that he had committed the offence, however 
 recently. If the offence be, that the party has knocked and rung 
 at a dwelling-house, to the disturbance of the inmates, and the 
 offender has ceased to knock and ring, and has walked away, whether 
 a yard or a quarter of a mile it matters not, he is not within the 
 words or the policy of the section, which only applies where the 
 offender is arrested in the course of committing the offence, and it 
 is necessary to apprehend him in, order to prevent a continuance of 
 the nuisance (&). 
 
 Arrest hy servants of railway companies. — Many Acts of Parlia- 
 ment, under which railway companies are incorporated, authorize 
 any officer or agent of the company to seize and detain any person 
 whose name and residence shall be unknown, who shall commit any 
 offence against the Act, and to convey him with aU convenient dis- 
 patch before some justice, &c., without any other warrant or 
 authority than that given by the Act. These statutes do not 
 
 (i) Simmons v, MiUingen, 2 C, B. 588, 
 
SECT. 2.] OF SOLDIEES, LUNATICS^ ETC. 585 
 
 authorize railway companies, their of&cers or agents, to take a 
 person into custody, or to detain him, for riding in a first-class 
 carriage with a second-class ticket, or for riding in a carriage with- 
 out a ticket, or for refusing to pay his fare when it is demanded, or 
 for mere acts of omission or offences against by-laws (c). By 8 Vict, 
 c. 20, ss. 103, 104, a penalty is imposed upon any person travelling 
 on a railway without having paid his fare, with intent to avoid pay- 
 ment thereof, and power is given to all of&cers and servants, on 
 hehalf of the company, to apprehend such person until he can 
 conveniently be taken before a justice. In the ordinary course of 
 affairs, the company must determine whether they will submit to 
 what they believe to be an imposition, or use this summary power 
 for their protection ; and as the decision whether a particular 
 passenger shall be arrested or not must be made without delay, it 
 inust be presumed that the officers of the company charged with 
 the management of traffic have authority to determine whether 
 passengers are to be taken into custody for this offence ; and if by 
 mistake an innocent person is apprehended by order of a super- 
 intendent, the company will be answerable for the wrong done {d). 
 Pulling down boards set up by the company, and other injuries to 
 their property, seem to be offences for which persons found in the 
 commission of them are liable to be at once taken into custody, 
 and carried before a magistrate. 
 
 Detention of recruits and deserters. — The Articles of War do not 
 justify the arrest and detention by an officer of any but a recruit or 
 a soldier. The annual Mutiny Act generally enacts, that every 
 person who shall knowingly receive enlistment-money from certain 
 persons employed in the recruiting-service " shall be deemed to be 
 enlisted as a soldier in Her Majesty's service " (e). If a person 
 apprehended as a deserter turns out to be a civilian, and not a 
 recruit or soldier, the parties who apprehended him, or ordered or 
 procured his imprisonment, will be responsible in damages for the 
 wrong done, for none are bound by the Mutiny Act or the Articles 
 of War except Her Majesty's forces. 
 
 Imprisonment of dangerous lunatics. — 'A private person may, 
 without any warrant or authority, confine a person disordered in his 
 mind, who seems disposed to do mischief to himself or to any other 
 person (/), the restraint being necessary both for the safety of the 
 lunatic, and the preservation of the public peace ; , but as the custody 
 of these unfortunate persons is matter of great public interest, the 
 
 (c) Chilton T. Land, and Croydon Rail. and S.-Western Sail. Co., post, p, 597. 
 Co., 16 M. & W. 231. TolUmache v. {d) Go^v. Gt. North. Mail. Co., vi sup. 
 
 Land, and S.-West. Mail. Co., 26 Law T. (e) See Wolton v. Gavin, 16 Q. B. 48. 
 
 B. 222. Goff T. Gt. North. Mail. Co., 30 (/) Bro. Abr. Favx Iufsisonment, 
 
 Law J,, Q. B. 148, See Poulton t. Lond, pi. 28. 
 
586 FAISE IMPRISONMENT. [CHAP. XII. 
 
 legislature has, by a series of enactments, established appropriate 
 tribunals and forms of proceeding for ascertaining their exact 
 mental condition, and imposing the necessary restraint upon their 
 actions, under the supervision of public functionaries. 
 
 The 8 & 9 Vict. c. 100, and 16 & 17 Vict. c. 96 {g), establish a 
 form of proceeding, based upon medical certificates, for the purpose 
 of facilitating the reception of persons of unsound mind, who are 
 dangerous to themselves or to others, in asylums where they are to 
 be properly restrained and treated. If the forms of proceeding 
 prescribed by this Act are not strictly complied with, the imprison- 
 ment is unlawful Qi). The fact of a person's acting so as to appear 
 to be of unsound mind is no justification to another for locking 
 him up as a lunatic, without compliance with the requisite form of 
 proceeding. It must be proved that the person imprisoned was, at 
 the time the restraint was put upon him, a dangerous lunatic. 
 The statutes now in force as to the certificates required to be ma'de 
 by the friend of a supposed lunatic and the medical men, protect 
 every person acting in -pursuance of the Act, except the person 
 signing the order for the confinement of the lunatic. The 
 certificates of all the doctors and physicians in the world will not 
 justify one person in taking and confining another as a lunatic, 
 unless it be proved that the person confined was really a dangerous 
 madman, or unless the person justifying the imprisonment is the 
 medical man, or the keeper of the asylum, or his servant, entitled 
 to statutory protection (i). 
 
 SECTION III. 
 
 OF ACTIONS EOE AN ASSAULT AND BATTEEY, AND EOE FALSE 
 IMPRISONMENT (/). 
 
 Statutory protection to constables and their assistants from 
 vexatious actions. — ^By 7 Jac. 1, c. 5, and 21 Jac. 1, c. 12, s. 6, it is 
 enacted, that if any action upon the case, trespass, battery, or false 
 imprisonment, shall be brought against constables, their deputies 
 orassistants, for or concerning any matter by them done by virtue 
 of their offices, the said action shall be laid within the county 
 where the trespass or fact shall be done or committed, and not 
 elsewhere; and that it shall be lawful for such constables, &c., to 
 
 (g) See Gore v. Qrey, 33 Law J., C. P. (i) Fletclm- t. Fletcher, 28 Law J., Q. B. 
 
 109. 134_ 
 
 W Coleridge J., J2^. v. Finder, 24 {j) See 30 & 31 Vict, c, U2, s. 10, 
 
 Law J ., Q. B. 148. Reg. -r.Munster, 20 ». ante, p. 555. 
 M. C. 48. Sorris t. Seed, 3 Exch. 782. 
 
SECT. 3.] STATUTOEY PEOTECTION TO CONSTABLES. 587 
 
 plead the general issue, not guilty, and to give any special matter 
 discharging them from liability in evidence to the jury ; and that 
 if upon the trial of any such action the plaintiff shall not prove 
 to the jury that the trespass, battery, imprisonment, or other fact 
 or cause of action, was committed or done withia the county 
 wherein the action shall be laid, the jury shall find the defendant 
 not guilty, without regard to any evidence on the merits. 
 
 By the 1 & 2 Wm. 4, c. 41, providing for the appointment of 
 special constables, it is enacted (s. 19), for the protection of persons 
 acting in execution of the Act, that all actions and prosecutions to 
 be commenced against any person for anything done in pursuance 
 of the Act, shall be laid and tried in the county where the fact was 
 committed, and shall be commenced within six calendar months 
 after the fact comipiitted, and not otherwise ; and notice in writing 
 of such action, and of the cause thereof, shall be given to the 
 defendant one calendar month at least before the commencement 
 of the action ; and in any such action the defendant may plead 
 the general issue, and give the Act and the special matter ia 
 evidence at the trial ; and no plaintiff shall recover in any such 
 action if tender of suificient amends shall have been made before 
 action brought, or if a sufficient sum of money shall have been 
 paid into court after action by or on behalf of the defendant. 
 
 The Municipal Corporations Act, 5 & 6 Wm. 4, c. 76, regulating 
 the appointment of constables for boroughs, further provides (s. 76), 
 that the men sworn as such constables shall not only within the 
 borough, but also within the county in which the borough or any 
 part thereof is situate, and ia any county within seven miles of 
 the borough, have all such powers and privileges, and be liable to 
 all such duties and responsibilities, as any constable duly appointed 
 then had, or thereafter might have, within his constablewick by 
 virtue of the common law, or of any statutes made or to be made ; 
 and s. 113 contains the usual clause for the protection of persons 
 acting in execution of the Act, making all actions against such 
 persons triable only in the county where the act was done, limiting 
 them to six months from the accrual of the cause of action, making 
 one calendar month's notice of action essential, and enabling the 
 defendant to plead the general issue, and give any special matter 
 of justification or excuse in evidence at the trial, and prohibiting 
 the plaintiff from recovering after tender of sufficient amends 
 before action, or payment of a sufficient sum into court after 
 action. 
 
 By 2 & 3 Vict. c. 71, for regulating the police courts of the 
 metropolis, it is enacted (s. 53), that no action, suit, information, 
 or other proceeding, shall be brought against any person for 
 anything done, or omitted to be done, in pursuance of the Act, or 
 
588 FALSE IMPEISONMENT. [CHAP. XII. 
 
 in the execution of the powers thereof, unless twenty clays' 
 previous notice in writing shall be given, nor unless the action 
 shall be commenced within three calendar months next after the 
 act committed, or, in case of continuing damage, within three 
 calendar months next after such damage has ceased, nor unless the 
 action, &c., shall be brought in the county of Middlesex. And see 
 s. 52. 
 
 And by 2 & 3 Vict. c. 93, for the establishment of county and 
 district constables, it is provided (s. 8) that the chief constable, and 
 other constables appointed under that Act, shall have all the powers, 
 privileges, and duties throughout the county, and in all liberties, 
 franchises, and detached parts of counties locally situate within 
 the county, and also in any adjoining county, which any constable 
 has within his constablewick, by virtue of the common law, or any 
 statute made or to be made (k), and every protective provision of 
 the 1 & 2 Wm. 4, c. 41 (ante, p. 587), is to be deemed to extend to 
 the constables appointed under that Act. This last-mentioned 
 statute is amended by 2 & 3 Vict. c. 93, which provides for the 
 consolidation of county and borough police establishments, and of 
 their mutual powers, privileges, and duties throughout counties 
 and boroughs ; and the 19 & 20 Vict. c. 69, for rendering' more 
 effectual the police in counties and boroughs, makes (s. 15) further 
 provision for the consolidation of county and borough police, 
 their powers, privileges, duties and • responsibilities ; and by 20 
 Vict. c. 2, s. 4, the statutes 2- & 3 Vict. c. 93, 3 & 4 Vict. c. 88, 
 and 19 & 20 Vict. c. 69, are to be construed together as one Act. 
 
 Protective clauses in favour of parties acting in the execution of 
 Acts of Parliament. — Most Acts of Parliament conferring special 
 powers and authorities upon constables and others for the accom- 
 plishment of particular purposes, contain the usual protective 
 clauses for the benefit of persons acting in the execution of the 
 Act ; making the cause of action local, and requiring the action to 
 be commenced within a certain limited period, and notice of action 
 to be given ; and enabling the defendant to plead the general issue, 
 and give the special circumstances of justification in evidence; 
 and prohibiting the plaintiff from recovering after tender of amends. 
 This is the case with the annual Mutiny Act, the Larceny Act (l); 
 the Malicious Trespass Act (ante, p. 579), the Metropolitan Police 
 Act (ante, p. 583), the Game Acts, the Statute for the Prevention 
 of Cruelty to Animals (m), the Eevenue, Excise, and Customs 
 Acts, the Public Health Act, the Contagious Diseases (Animals) 
 Act, 1869 (n), and various statutes, enabling constables and private 
 
 {h) See Mdlor t. Leather, 1 Ell. & Bl. & 83 Vict. c. 12, s. 10 ; o. 57, s. 6. , 
 623. (m) HopHns t. Crowe, i Ad. & E. 774. 
 
 (1) 24 & 25 Yict. c. 93, s. 113, See 32 (n) 32 & 38 Vict, c. 70, ss. 110—118. 
 
SECT. 3.] NOTICE OF ACTION TO CONSTABLES AND OTHERS. 589 
 
 individuals to arrest persons found in the commission of a felonious 
 or prohibited act. 
 
 Limitation of aeiions, and notice of action. — Protective clauses 
 in Acts of Parliament in favour of constables and officers acting in 
 the execution of their offices, or in favour of constables or of 
 private individuals acting in the execution or in pursuance of 
 particular Acts of Parliament, are intended for tlie benefit of those 
 who want to act rightly, but have by mistake done wrong. It has 
 been frequently observed by the courts, that the notice which is 
 directed to be given to constables and officers before actions brought 
 against them is of no use to them when they have acted within 
 the strict line of their duty, and was only required for the purpose 
 of protecting them in those cases where they intended to act 
 within it, but by mistake exceeded it (o). " The object," observes 
 Lord EUenborough, " clearly is to protect persons acting illegally, 
 but in supposed pursuance, and with a hond fide intention, of 
 discharging their duty under the Act of Parliament. Where the 
 law is not exceeded the protection is not required " (p). " It is 
 not wanted," observes Jervis, C.J., •' by those who are in the right, 
 and have a perfect justification under the Act of Parliament, but 
 by those who are in the wrong, in order that they may have an 
 opportunity of tendering amends. If the defendant bond fide 
 believed that he was acting in pursuance of the statute, and in the 
 exercise of a legal right, that is all that is necessary to entitle him 
 to notice of action. It is not necessary that he should know the 
 Act, chapter, and verse." "Whether he had reasonable grounds 
 for believing," further observes Maule, J., " that he was acting in 
 pursuance of the statute, maybe very fit to be considered when the 
 question is as to his hona fides, for a case may be supposed, where 
 there is such a want of reasonable ground for belief as to negative 
 his lona fides " (q). In. order to establish a claim to the statutory 
 protection, it must appear that tlie act done was of that nature and 
 description that the person doing it might reasonably suppose that 
 the Act of Parliament gave him authority to do it (r). Where there 
 is no reasonable ground for supposing that the act done is 
 authorized, the party is not protected by the statute, and notice of 
 action is not requisite (s). 
 
 Where the owner of property, injured by the act of another. 
 
 (o) Per Ld. Kenyon, C.J., Greenwmj v. Hopper, 9 Q. B. 1014. Cox v. Reid, 13 
 
 Eurd 4 T E 555 Q' ^' ^^^■ 
 
 iv)' Theobald v. Crichmore, 1 B. & Aid. (r) Rudd v. Scott, 2 Sc. N. R. 633. See 
 
 nog Chamherlam, t. King, post, p. 591, 
 
 (q) Read v. Coker, 22 Law J., C. P. («) Cook \ leonm-d, 6 B & C. 356. 
 
 205- 13 C B 861. Booth v. Clive, 10 Hermann T. SeneschaU, 13 0. B.. N, S. 
 
 C B 827 • 2 ii M. & P. 283. Jones v, 392 ; 32 Law J., C, P, 43. gee Z,eete y, 
 
 ffowell, 2d Uw J., Esoh, 19. ig'wJiA v, Hart, post, ^^ 590^ 
 
590 FALSE IMPKISO"NMENT. [CHAP. XII. 
 
 bond fde supposes that lie has a right to give the person injuring 
 his property into custody, and there is a fair colour for the 
 proceeding, he is entitled to notice of action, though he was 
 altogether mistaken in the assertion of his rights, and cannot 
 justify the trespass under the statute {t). The protection afforded 
 by the statute is not confined strictly to the owner of the property 
 injured, but is extended to all persons who had ^lond fide belief, 
 founded on some grounds, that they filled the character mentioned 
 in the statute, and acted under that belief (m). If the plaintiff was 
 found in the act of committing a malicious trespass, and the 
 defendant had reasonable ground for believing that he had authority 
 from the owner of the property to interfere, and take or give the 
 plaintiff into custody, the defendant will be entitled to notice of 
 action {v). But as the statute only authorizes the arrest of persons i 
 " found committing an offence within the statute," the defendant 
 must, if the plaintiff was not taken flagrante delicto, show that a 
 malicious trespass had been committed ; that the plaintiff was on 
 the spot ; that there was reasonable ground for believing that the 
 mischief was still going on, and that the plaintiff was the author 
 or instigator of it (w). 
 
 " Several decisions have established that iona fides is not alone 
 sufficient to bring a case within the privileges of these Acts of 
 Parliament " (x). If there is no pretence or colour for the notion 
 that the injurious act was done in execution of the statute under 
 which the defendant shelters himself, he could have had no fair 
 and reasonable ground for supposing that he was privileged and 
 protected, and cannot, consequently, claim protection {y). "It 
 woidd be wild work," observes WiUiams, J., " if a party might give 
 himself protection by inerely saying that he believed himself to be 
 acting in pursuance of a statute. Still, protecting clauses of this 
 sort would be useless if it were necessary tjiat the person claiming 
 the benefit of them should have acted quite rightly. The cases to 
 which they refer must lie between a mere foolish imagination and a 
 perfect observance of the statute " (2). And it is now quite settled, 
 that if the defendant honestly believes in the existence of a state 
 of things, which, if it had existed, would have justified his doing 
 the acts complained of, he is entitled to notice, and the reasonable- 
 
 (t) Beachy v. Sides, 9 B. & C. 809. {x) Ld. Denman, C. J., .Smii^ v. iTopper, 
 
 Norwood V. Pitt, 29 Law J., Exch. 127. 9 Q. B. 1014. Cooh t. Leonm-d, 6 B. 
 
 (u) Sughes v. Buckland, 15 M. & & C. 351. Some v. GHmhle, Car. & M. 
 
 W. .346. ffom V. Thornborough, 3 Exoh. 23. 
 
 849. Chamberlain v. King, h. E., 6 0. P. (y) Shatwell v. ffall, 10 M, & W. 525. 
 
 474. EUot T. Allm, 1 C. B. 37. 
 
 (d) KiiK V. Everahed, 10 Q. B. 150. (2) Coren v. Clipperton, 10 Ad. & E. 
 
 (w) Cann v. OlippeHqn, 10 Ad. & B. 589. HopTdns v. Crowe, 4 Ad. & E. 777, 
 
 688. BaUimger v. Ferris, 1 M. & W. 6?1, P?e Leete t, ffm, h. B., 3 C. P, 322, 
 See ChamberUtin v, ^ing, infra. 
 
SECT. 3.] NOTICE OF ACTION UNDER LAECENY ACT. 591 
 
 ness of his belief, provided some grounds exist for an honest belief, 
 is not material (a). 
 
 "When the privilege is accorded to a person who fills a particular 
 character and situation, the defendaht, who claims the privilege on 
 the ground that he acted ia good faith on the belief that he was 
 clothed with the official character, must show some reasonable 
 ground for his belief. A general persuasion that the defendant 
 had the power he claimed to exercise will not entitle him to the 
 privilege, but a mistaken opinion on any of the facts which must 
 exist to give him the power will not deprive him of his right to the 
 protection of the statute (&). If, as a reasonably reflecting and 
 careful person, he must have known that he was not clothed with 
 the requisite of&cial character, he has no ground for claiming the 
 protection of notice of action (c). 
 
 Notice of action to ^persons acting in execution of the Larceny 
 Act.—'^^ 24 & 25 Vict. c. 96, s. 113 id), it is enacted that aU 
 actions for anything done in pursuance of that Act shall be laid and 
 tried in the county where the fact was committed, and shall be 
 commenced within six months after the fact committed, and notice 
 in writing of such action and of the cause thereof shall be given to 
 the defendant one month at least before the commencement of the 
 action, and no plaintiff shall recover in any such action if tender 
 of sufficient amends shall have been made before the action is 
 brought. An ordinary arrest for felony is not a thing done under 
 the power or authority of this Act, but by virtue of the common 
 law, which authorizes the arrest by private individuals of persons 
 reasonably suspected of felony (ante, p. 578). Several new offences 
 are however created and made criminally punishable by this statute, 
 and sect. 103 (e) enacts that any person found committing any 
 offence punishable either upon indictment or summary conviction 
 by virtue of the Act, except only the offence of angling in the day- 
 time, may be immediately ^.pprehended without warrant by any 
 person, and forthwith taken, together with such property, if any, 
 before some neighbouring justice of the peace, to be dealt with 
 according to law. To entitle a person to notice of action in respect 
 of an arrest made under this section, it must be shown that at the 
 time of the arrest he believed that the offence had been committed, 
 and believed that he had found the person arrested in the act of 
 committing it (/). Where, therefore, the offence, if any, was 
 committed" at 1 p.m., and the pursuit of the supposed offender not 
 
 (a) ChamierUm v. Kimg, L. B., 6 C. W See 32 & 33 Viet. c. 12, b. 10 ; c. 57, 
 
 . (h)ki^ V. Evmhed. 10 Q. B. 150. (^jSee 32 & 33 Viot. o. 12 s 10 
 
 (c) Lidste, y. Borrm, 9 Ad. & E. §54, (/) ^ober^ r Orchard, 2 H. & < . 759 j 
 
 Book V. aive, 10 0, B. 835, §3 taw J., Esch, §6, 
 
592 FALSE IMPRISONMENT. [OHAP. XII. 
 
 commenced till 3 p.m., it was held that the person arresting was 
 not entitled to notice {g). 
 
 Notice of action to persons acting in execution of the Metropolitan 
 Police Act.—Th^ 79th section of the Metropolitan Police Act, 
 2 & 3 Vict c. 47 {ante, p. 583), enacts that that Act is to be 
 construed as one Act with the 10 Geo. 4, c. 44, the 41st section of 
 which provides that notice of action must be given to all persons 
 acting in the execution of that Act. If, therefore, a person has 
 reasonable grounds for believing that he is entitled to arrest a 
 person found committing an act prohibited by the Metropolitan 
 Police Act, he is entitled to notice of action Qi). 
 
 Persons entitled to the benefit of the protection. — ^A person who 
 acts as a prime mover and principal in setting a constable in 
 motion, who commands the constable, instead of being commanded 
 by the latter, is not acting in aid of such constable, and is not 
 entitled to the benefit of the statute (i) ; but he who acts only when ■ 
 required by the constable to assist him, is within the protecting 
 clauses of the statutes. 
 
 Length of notice of action. — By 5 & 6 Vict. c. 97, s. 4, it is 
 enacted, that in all cases where notice of action is required to be 
 given, such notice shall be given one calendar month at least before 
 any action shall be commenced, and such notice shall be sufficient, 
 any Act to the contrary thereof notwithstanding. In the com- 
 putation of the calendar month, the day of giving the notice and 
 the day of suing out the writ are both to be excluded, for otherwise 
 the intervening period is not a whole month as required by the 
 statute (/). In the computation of time, the day of an act done or 
 an event happening is to be excluded, for our law rejects fractions 
 of a day. Therefore the act and the day are co-extensive, and 
 the act cannot properly be said to be passed until the day is 
 passed (Ic). 
 
 Statement of the cause of action. — rA notice of action against a 
 constable or officer should set forth the substantial ground of 
 complaint against him, and should specify the time and place of 
 the commission of the grievance (f). If the notice contains a 
 reference to a wrong statute, the wrong reference may be rejected, 
 as a reference to the statute requiring notice to be given is not an 
 essential part of the notice (m) ; but the court in which the action 
 
 (g) Downing v. Ca/pd, L. K„ 2 C. P. See per Lord Kenyon, C. J., in Ex parte 
 
 461. See Leete v. Hart, supra. FaUon, 5 T. E. 286. 
 
 (h) Damvers v. Morgan, 1 Jur., N. S., (I) Breese v. Jerdein, i Q. B. 585. 
 
 Exch. 1061. Martins v. Upcher, 3 Q. B. 668. 
 
 (i) Staight t. ffee, 2 Stark. 449. See v. Nesfidd, 23 Law J., M. C. 169. Jones 
 
 post, pp. 595, 596. v. NichoUs, 13 M. & W. 361. See Burton, 
 
 (j) Young v. Higgon, 6 M. & W. 49. v. Le Gros, 34 Law J., Q. B. «1. 
 
 (h) Lester v. 6a/rland, 15 Ves. 248. (m) Macgregor v, Galsworthy, 1 C. is 
 
 WM 7, Fairmaner, 3 M, «; w, 47q, K. S, ' 
 
SECT. 3.] • TENDER 01' AMENDS. 593 
 
 is brought, if stated at all, should be correctly stated, particularly 
 if several notices of action have been served (n). It is not necessary 
 in the notice to name all the persons meant to be made parties 
 to the action, nor to express whether it is intended to be brought 
 against several persons jointly, or against one person only (o), but 
 every plaintiff who sues must give notice of action, and every 
 defendant must receive notice. Notice on behalf of two com- 
 plaining parties, one of them being dead, was held not to suppd^t 
 an action brought by the survivor (p). It is quite sufficient if the 
 notice affords plain and substantial information of the cause of 
 action ; it is not necessary to describe in specific words precisely 
 how the injury took place ; nor is it in all cases material to state 
 precisely where the cause of injury arose (q). When the statute 
 requires the name and place of abode of the attorney of the party 
 giving the notice to be indorsed on the notice, any material error or 
 misstatement calculated to mislead wiU. invalidate the notice ; but 
 if. the information given is sufficiently specific and sufficiently 
 accurate to enable the defendant to avaO. himself of the privileges 
 and advantage that the Act intended to confer upon him, it will be 
 sufficient, and it is for the defendant to show that the error or 
 misstatement, or insufficient description in the notice, has deprived 
 him of the opportunity of taking advantage of the statute (r). The 
 Christian name of the attorney need not be written out at full 
 length (s), nor need his private residence be specified ; for the 
 place where an attorney abides for the purpose of carrying on 
 his business is his place of abode within the meaning of the 
 statute. " Either will do, the place of residence or the place of 
 business " (t). Care must be taken \to address the notice to the 
 right parties, and to serve it in the proper quarter (u). 
 
 Tender of amends. — The statutes, requiring notice of action to 
 be given, further provide, generally speaking, that no plaintiff shall 
 recover for any wrongful proceeding in execution of the Act,- if 
 tender of sufficient amends shall have been made before action 
 brought, and that if the jury at the trial are of opinion that the 
 plaintiff is not entitled to damages beyond the sum tendered or 
 paid into court, they are to give a verdict for the defendant, and 
 the plaintiff cannot elect to be nonsuited. 
 
 Payment of inioney into court. — Every constable, officer, and 
 private f)erson who is entitled to the ordinary statutory protection, 
 may, after action commenced, and before issue joined, pay money 
 into court, and give evidence of such payment under the plea of 
 
 (n) Ehtoh T. WrigU, 3 C. & K. 35. (r) Oshom v. Gougli, 3 B. & P. 554. 
 
 (o) Box V. Jones, 5 Pr. 168. («) Jarnes T. Simfl,4: B. & 0. 681. 
 
 ( p) PilUngton v. RUey, 3 Exch. 741. (<) MoberU v. WMmms, 4 Dowl. P. C. 
 
 (ff) Jones V. Bird, 1 D. & B. 603 ; 5 P. 486 ; 2 C. M. & K. 561 
 & Aid. 837. M -^»*r T. Porrell, 1 Taunt. 384, 
 
594 FALSE IMPRISONMENT. [CHAP. XII. 
 
 not guilty by statute ; and if at the trial the jury are of opinion 
 that the plaintiff is not entitled to damages beyond the sum paid 
 into court, they are bound to give a verdict for the defendant, and 
 the plaintiff cannot elect to be nonsuited, and the defendant's costs 
 are to be paid out of the money paid into court. If the plaintiff 
 accepts such money in satisfaction of the damages, it is to be paid 
 out of court to him, and the defendant is to pay him his taxed 
 costs, and thereupon the action is to be determined (v). 
 
 Parties to he made plaintiffs — Master and servant.— The person 
 actually assaulted is in general the only person who can maintain 
 an action for damages, unless the assault has caused his death, ■ 
 in which case the action, if maiatainable, must be brought by 
 his personal representative (ante, p. 408) ; or unless the person 
 assaulted is a servant, and the master has lost the benefit of his 
 service by reason of the assault, in which case an action for 
 damages is maintainable both by the servant and the master; 
 but the master cannot have an action for the beating imless the 
 battery is so great that, by reason thereof, he loses the services of 
 his servant, but the servant himself, for. every small battery, shall 
 have an action ; and the reason of the difference is, that the master 
 has not any damage by the personal beating of his servant, but by 
 reason of the loss of service (w). 
 
 "Where two have a joint interest they may, as we have seen, join 
 in the same action, but they cannot do so where the wrong done to 
 one is no wrong done to the other, as in the case of false imprison- 
 ment, or assault and battery, where what one man suffers is 
 altogether different from the injury that accrues to another- from 
 the same cause (sj). 
 
 Of the parties to he made defendants. — Every private unofficial 
 person not acting in a judicial capacity, or in the authorized execu- 
 tion of legal process (poM, chs. 14, 15), is responsible in damages 
 for a wrongful imprisonment, ordered, directed, or authorized by 
 him (y). He is not responsible for the orders or decrees of judges, 
 and justices, before whom he has laid a complaint or made a 
 charge ; but if he officiously interferes and gives orders or direc- 
 tions to police constables for the imprisonment of the plaintiff, he 
 wiU be responsible in damages if he is unable to excuse or justify 
 the act. Where the defendant out of spite and iU-wUl, and for the 
 purpose of getting the plaintiff out of the way, went to the place of 
 rendezvous for the impress service near the Tower, and gave infor- 
 mation there which caused the plaintiff to be seized by the press- 
 gang and carried on board the tender, where he was detained until 
 
 (to) Sobert Mary's case, 9 Co. 205. (y) Ante, pp. 9, 577, 585. 
 
SECT. 3.] ACTIONS — PAETIES. 595 
 
 it was discovered that the information was false, and that he had 
 never been in a ship before, it was held that the defendant was 
 liable to an action for false imprisonment. " If a person," observes 
 Lord EUenborough, " causes another to be impressed, he does it at 
 his own peril, and is liable in damages if that person proves not to 
 have been subject to the impress service. If the defendant in this 
 case had said that she believed the plaintiff had been a sailor, and 
 was liable to be impressed, leaving it to the officer of the press- 
 gang to make the necessary inquiries, and to act as hffe should think 
 most advisable, she would not then have been amenable to this 
 action, but she took upon herself positively to aver that the plain- 
 tiff was compellable to serve in a king's ship, and caused him to be 
 seized, and she must answer for the consequences " (s). Here the 
 person giving the information was the sole moving cause of the 
 arrest, and herself trumped up a false story for the very purpose of 
 wrongfully depriving the plaintiff of his liberty. There is a wide 
 distinction, therefore, between this case and the case of a man who 
 gives iona fide information, or makes a honA fide, charge against 
 another to a police constable, leaving the constable to make inquiry 
 into the circumstances, and act as he may think fit in the matter. 
 
 "Where a felony had been committed in the house of the defen- 
 dant, and the latter sent for the police and complained of the 
 robbery, and stated various circumstances of suspicion which had 
 come to his knowlec^e, and the policeman made inquiry into those 
 circumstances, and on his own authority arrested the plaintiff and 
 took him to a police-station, and at the same time requested the 
 defendant to come to the station and sign the charge-sheet, which 
 he did, charging the plaintiff with the felony, it was held that these 
 facts did not render the defendant responsible for a trespass, as 
 charging a person with an offence was a different thing from giving 
 Tiirn into custody. "The arrest and detention of the plaintiff," 
 observes Pollock, C.B., "were the acts of the police-ofi6.cer ; and 
 the defendant did nothing more than he was, under the circum- 
 stances, bound to do, mz., sign the charge-sheet. He might have 
 been liable if he hadi acted medcifide, but not otherwise. We ought 
 to take care that people are not put in peril for making a complaint 
 when a crime has been comnjitted. If a charge be made maid fide, 
 there are ample means of redress "• {a). But if the defendant gives 
 the plaintiff in charge (b), or directs the policeman to take him into 
 custody, he wiU be answerable in damages for the imprisonment if 
 he cannot establish a justification (c), and the signing of a charge- 
 
 tz) Flew^er v. Bayk, 1 Campb. 188. Wheeler v. Whiting, 9 0. & P. 262. 
 
 la) GrinJum v. WiOey, 4 H. & H. 499; (c) Warner y. BidMfm-d, 4 0. B., If. S. 
 
 28 Jjavr J., Exch. 242. Brown T. Chap- 200. Ashurst, J., in Morgam, v. Hughes, 
 mm 6 C. B. 374. 2 T. E. 231. Stomshmise v. BlUott, 6 ib. 
 
 {i) HopUns V. Crowe, 4 Ad. & E. 774. 3|5. 
 
 Q q a 
 
596 ASSAULT — FALSE IMPKISONMENT. [CHAP. XII 
 
 sheet by the defendant is frimA facie evidence against him that he 
 ordered and directed the arrest {d). 
 
 All persons aiding and assisting in the unlawful confinement of 
 another are responsible in damages for the trespass, although they 
 had nothing to do with the original arrest, and had no knowledge 
 that the arrest and imprisonment were unlawful at the time they 
 had a hand in it (e). 
 
 If a person has been arrested and imprisoned under the autho- 
 rity of legal p^bcess which has been set aside as irregular, both the 
 attorney who sued out the process and the client who set the 
 attorney in motion are responsible in damages in an action for an 
 assault and false imprisonment ; for as the client gives to the 
 attorney the right to represent him in the conduct of a cause, he is 
 responsible for whatever the attorney does within the scope of his 
 authority. The writ is a justification to the ofiicer of the court who 
 acted under it, and had no option but to obey it {post, ch. 14), but 
 it is no protection, after it has been set aside, to the attorney who 
 sued it out (/), or to the client who set the attorney in motion {g). 
 But a person causing process to be issued is not responsible for 
 anything that is done under it where the process is afterwards set 
 aside, not for irregularity, but for error. In the one case a man 
 acts irregularly and improperly without the sanction of any court. 
 He therefore takes the consequences of his own unauthorized act. 
 But where he relies upon the judgment of a competent court he is 
 protected (h). And so if a judgment, regularly signed, be acted 
 on, and the plaintiff taken on a ca. sa. issued under it, the defendant 
 will not be liable if the judgment be set aside, not for irregularity 
 or bad faith on the part of the defendant, but in the exercise of the 
 equitable jurisdiction of the court, because judgment has been 
 signed for too much, and as a favour to the plaintiff (i). 
 
 Hdbility of a corporation to an action for an assault. — An action 
 for an assault and battery will lie against a corporation whenever 
 the corporation can authorize the act to be done, and it has been 
 done by their orders or authority (/). But it is otherwise if the 
 corporation cannot legally authorize the act to be done. Where, 
 therefore, a station-master arrests a person travelling by a railway 
 in charge of a horse for not paying for the carriage of the horse on 
 demand, and there was no power in the railway company by law 
 to arrest a person for such non-payment, but only to detain the 
 
 (d) Harrw v. Signvm, 39 Law J., & TS. 361. 
 
 ^'^"^'i^.-., „ -i^) Williams V. Smith, U C. B., N. S. 
 
 (e) GV^plv. C/ofema», 28LawJ., Exch. 596. Cooper y. Harding, 7 Q. K 928. 
 137 J 4 H. & N. 265. Philips v. Biron, 1 Str. 509. 
 
 (/) Pairsons v. Lloyd, 2 W. Bl. Ui. (i) Smith v. Sydney, L. E., 5 Q. B. 203. 
 
 (g) Bwrher t. Brcokam, 2 W. Bl. 865 i (j) Goffy. Gt. North. Mail: Co., 30 Law 
 
 post, ch. 17, s. a. Collett y. Foster, 2 B.. J., Q. B. 148, 4n«<r, p. 584— 5. 
 
SECT. 3.] ACTIONS— PLEADINGS. 597 
 
 goods, it was held that no authority could be implied to the station- 
 master, and that the railway company were not responsible (Je). So 
 if a foreman porter, in temporary charge of a station, or a ticket 
 clerk, arrests a servant of the company, or a stranger, on a charge 
 of stealing the company's goods, or robbing the till, as they have no 
 implied authority so to arrest, the company are not responsible for 
 it (t). So where one of the defendant's servants, a constable, after 
 the conclusion of a scuffle in a station yard, wrongfully gave the 
 plaintiff into custody, and all that the constable was authorized by 
 the regulations of the company to do, was to interfere in any fight 
 or affray occurring at any of the stations, for the purpose of stopping 
 it, it was held that the company were not responsible (m). On the 
 other hand, where the plaintiff, who refused to show his ticket, was 
 removed from the station with unnecessary violence by order of 
 the inspector, the company were held responsible (n). 
 
 Subsequent ratification of wrongful imprisonment rendering the 
 ratifying party responsible for the, 'wrong. — ^An action will lie against 
 every person who has ratified and adopted an act of imprisonment 
 effected or ordered by his servant or agent for his use and benefit, 
 although the imprisonment was effected in the first instance with- 
 out his knowledge. " But he that agreeth to a trespass after it be 
 done, is no trespasser unless the trespass was done to his use or for 
 his benefit (o), and then his agreement subsequent amounteth to a 
 commandment " (p). An imprisonment of a person liable to a rail- 
 way company for not having paid his fare is an act for the benefit 
 of the company, which may be ratified by the company ($'). 
 
 Declarations for an assault and false imprisonment. — The venue 
 or county where an action for an assault and false imprisonment is 
 to be tried, must be stated in the margin of the plaintiff's declara- 
 tion of his cause of action (?•), and the venue is local and must be 
 laid, as we have seen, within the county where the trespass or 
 wrong was done, in all actions against justices of the peace, mayors, 
 bailiffs, constables, tax-collectors, churchwardens, overseers and 
 their deputies, and other public officers, for anything done by them 
 touching or concerning their offices (s), and in all actions for any- 
 thing done under the Malicious Trespass Act (t). "When the action 
 
 (h) PouUon V. Land, and S.-Westem 6 Exch. 327. Ooffy.Gt.NoHh. Rail. Co., 
 
 iJoiJ. Co., L. K., 2 Q. B. 534. utmp. „.im,B-,r-, , ™, 
 
 (l) EdJwwrds V. L. <fc N.. W. Rwy, L. R, (r Reg. Gen. Hil. T. 16 Vict. ; 1 Ell. 
 
 5 c' P. 445. AUen r. L. & S.- W. Rim,., & B . App. Ixxix. K. 4. 
 L E 6 B 65 W 21 Jac. 1, c. 12, s. 5. Touching or 
 
 '(m) Walker y.' SoutJu-Sastem Rwy. L. concerning their offices means, that they 
 
 •D 5 n p g4o ■^^ei'e intending to act under colour of 
 
 ''ln\ S 6 ' ^^^^ office, although by error and mS&- 
 
 \o\ See 'WalUr t. South-East. Rwy., take they did not in point of fact do so. 
 
 ? v' ^ jjjgt 317 and see post, ch. 15. 
 
 (a) East. Counties Ratt. Co. t. Broom, (t) Ante, p. 588. See Thomas t. -Sfomn- 
 
 ^^' ders, 5 B. & Ad. 462. 
 
598 ASSAULT— FALSE IMPEISONMENT. [OHAP. XII. 
 
 is brought pursuant to a notice of action {mite,, p. 589), and the 
 action is not maintainable -without notice of action, the declaration, 
 must disclose the same cause of complaint as is contained in the 
 notice (m). 
 
 The short form of declaration in a common case of false im- 
 prisonment given in the schedule of the Common Law Procedure 
 Act, 15 & 16 Vict. c. 76, merely alleges "that the defendant 
 assaulted and beat the plaintiff, gave him into custody to a police- 
 man, and caused him to be imprisoned in a police office." 
 
 What Tiiay he given in evidence under the plea of not guilty.-^ 
 Under the plea of not guilty in an action for an assault, or battery, 
 or wounding, those facts only can be given in evidence which tend 
 to show that the defendant did not do the act complained of {v). 
 Any defence which admits the trespass and seeks to show the fact 
 of its being excusable by some accident, or justifiable, is matter for 
 a special plea («?)■ If the act complained of has been done by the 
 leave and licence or permission of the plaintiff, it is not an assault, 
 and the leave and licence may consequently be given in evidence 
 under the plea of not guilty. If two persons agree to play at 
 cricket together, and the one strikes the other with the ball ia the 
 course of the game, this is not an assault, for " it is a contradiction 
 ia terms to say that the defendant assaulted the plaintiff by the 
 leave and licence or permission of the latter " {£). 
 
 If two persons proceeding through the streets on foot or on 
 horseback, or driving carriages and horses, run or drive against 
 each other, the question as to which of them caused the collision, 
 or struck the person of the other, is raised by the general issue of 
 not guilty (jr). If both are in fault and both caused the collision, 
 so that it is impossible to fasten the wrong and injury exclusively 
 upon the one or the other, the evidence tending to establish such a 
 state of facts is likewise admissible under the plea of Not guilty. 
 If the act complained of is the exclusive act of the defendant ; if 
 he drives against a horse or carriage which is standing still in the 
 street, or over a drunken man who is lying down on the road, 
 or over a pergpn who has fallen from the kerb or footway into the 
 carriageway, and the defendant seeks to set up some excuse or 
 justification on the ground that it, was an inevitable accident, 
 he must plead the facts specially on the record (a). But if he 
 seeks to show that the act was not his act, and that he was not a 
 voluntary agent in the matter, the evidence pointing to such a 
 
 («) maoh V. Wriglit, ZC.kTS.. 39. (g) Peany t. TfoBcr, 6 C. & P. 232. 
 
 (v) Pewrey v. WalUr, 6 C. & P. 232. (z) HaU t. FewrvUy, 3 Q. B. 91?. 
 
 477. 
 
 ifo) EaU V. Femtdey, 3 Q. B. 921. Knapp v. Salishwry, 2 Oampb. 500. Clot- 
 
 (x) Oknstopkerson v. Bare, 11 Q. B. teM % Starhig, 8 0. &i P, e§l. 
 
SECT. 3.] PLEADINGS — NOT GUILTY BY STATUTE. 599 
 
 result is admissible under the plea of not guilty. Thus, if a horse 
 being suddenly frightened by a flash of lightning or clap of thunder 
 runs away with his rider, and the latter loses all power and control 
 over the animal, and is unable to guide him, the injuries inflicted 
 by the ungovernable horse under such circumstances are not 
 injuries done by the rider, and the latter is in substance not guilty 
 of committing them (a). It may be proved, under the plea of not 
 guilty, that the defendant is an officer of the Queen and govern- 
 ment, and that the assault was committed by him whilst he was 
 acting in discharge of his public duty as an officer carrying out the 
 orders of his government (&). 
 
 Every defence which goes to show that the imprisonment com- 
 plained of was not the act of the defendant is admissible under 
 the plea of not guilty ; such as, that the defendant went before a 
 magistrate and preferred his complaint to the magistrate, who 
 thereupon issued his warrant for the apprehension of the defen- 
 dant (c), or that the defendant accused the plaintiff of embezzlement, 
 and that the plaintiff insisted on having the charge investigated, 
 and accompanied the defendant to a magistrate, who, on hearing 
 the charge, ordered the plaintiff to be placed in the dock as a 
 prisoner, to answer it, and detained him untU the charge had been 
 heard, and then dismissed him (d). 
 
 Not guilty hy statute. — Acta of Parliament containing clauses 
 for the protection of persons intending to act in the execution of 
 the statute provide, as we have seen (ante, p. 586), that the 
 defendant may give the Act and the special matter in evidence 
 under the general issue, and that the acts were done in pm'suance 
 or by the authority of the Act, and that if they shall appear to 
 be so done, the jury shall find for the defendant. To enable a 
 defendant to avail himself of the plea of not guilty by statute, 
 and to give special circumstances of justification or excuse in 
 evidence under it, he must show that the act complained of was 
 done under the authority and pursuant to the powers and pro- 
 visions of the statute upon which he relies (e), or if the -privilege 
 is given to persons holding certain offices, and being clothed with 
 a certain official character, it must be shown that he had, in point 
 of fact, been appointed to the office (/). In every case in which 
 a defendant pleads the general issue, intending to give the special 
 matter in evidence by virtue of an Act of Parliament, he must 
 insert in the margin of the plea the words, " by statute," together 
 with the year or years of the reign in which the Act of Parliament 
 
 (o) GiVbons T. Pepper, 2 Salk. 637 ; 1 (d!) Brmm v. Ghaipmam,, 6 C. B. 374. 
 
 lid. Eaym. 38 ; 4 Mod. 404. (e) Witham Nm. Oo. v. Padley, 4 B. & 
 
 (6) Buron v. Demrnn, 2 Exoh. 167. Ad. 69. 
 
 (c) Barber T. MoUimon, 1 Cr. & M. 330. (/) Bush T. Qrem, 4 B, Ni 0. 49. 
 West T. Smattwood, 3 M. & W. 421. 
 
600 ASSAULT — FALSE IMPRISONMENT. [CHAP. XII. 
 
 upon which he relies was passed, and the chapter and section of 
 the Act, and must specify whether the Act is public or otherwise, 
 or he will not be entitled to the benefit of the Act ; and such 
 memorandum must be inserted in the margin of the issue and of 
 the nisi prills record {g). 
 
 Pleas setting forth a previous hearing and dismissal ly magis- 
 trates.— Ey 24 & 25 Vict. c. 100, s. 42 (which is for the most part 
 a re-enactment of the 9 Geo. 4, c. 31, s. 27), it is enacted, that 
 .where any person shall unlawfully assault or beat any other 
 person, two justices, upon complaint by or on behalf of the party 
 aggrieved, may hear and determine such offence ; and (s. 44) if the 
 justices, upon the hearing of any such case of assault and batteiy 
 upon the merits, where the complaint was preferred by or on behalf 
 of the party aggrieved, shall deem the offence not to be proved,, or 
 shall find the assault or battery to have been justified, or so trifling 
 as not to merit punishment, and shall dismiss the complaint, they 
 shall forthwith make out a certificate under their hands, stating the 
 fact of such dismissal, and shall deliver such certificate to the 
 party against whom the complaint was preferred. And if any 
 person (s. 45) against whom any such complaint shall 'have been 
 preferred by or on behalf of the party aggrieved shall have obtained 
 such certificate, or having been convicted shall have paid the whole 
 amount adjudged to be paid, or suffered the imprisonment awarded, 
 such party shall be released from aU further proceedings, civU or 
 criminal, for the same cause. If a certificate under this statute is 
 relied upon as a defence, it must be specially pleaded (A), and 
 shown to have been granted on one of the grounds specified ia the 
 Act {i). If the magistrate merely orders the accused to enter into 
 recognisances to keep the peace and pay the recognisance fee, that 
 will be no bar to an action within the 45th section (]c). Under 
 9 Geo. 4, c. 31, s. 27, if the plaintiff, after the defendant had been 
 summoned before justices, and had appeared and pleaded " Not 
 guilty," withdrew his complaint without offering any evidence, and 
 the charge was dismissed, or if he gave notice that he did not 
 mean to attend the hearing, and the defendant attended and 
 claimed to have the information dismissed, the defendant was 
 entitled to a certificate in the terms of the statute, which was a 
 bar to any subsequent action for the same assault (T) ; but this has 
 been altered by the above statute, which requires the hearing to be 
 on the merits, in order to entitle the defendant to the certificate. 
 
 (g) Reg. Gen. 16 Vict.; 1 Ell. & BL P. 553. 
 
 ^F'A''"V. (0 TunnicUffe t. Tedd, 5 C. B. 563. 
 
 (A) Harding V. King, 6 C. & P. 427. Vaugkton v. Bradslwm, 9 C. B., N.' S. 
 
 (%) Skuse-v. Dams 10 Ad. & E. 639. 115. Bradihavi v. Vaughton, 30 Law J., 
 
 (Jc) EwrtUy v. Mvndmmrsh, L. E., 1 C. C. P. 93. 
 
SECT. 3.] ACTIONS — PLEAS OF JUSTIFICATION. 601 
 
 If the magistrate takes cognisance of the complaint and decides 
 it to be frivolous, he is hound forthwith to grant a certificate that 
 he has so decided. The granting or withholding the certificate by 
 the magistrate is not discretionary. The defendant is entitled to it 
 dejwre, and whether the complainant was present or absent at the 
 time of the grant of such certificate is wholly immaterial (m). 
 When the complaint has been once duly made before justices, it 
 caimot be withdrawn, and further proceeding upon it discontinued 
 by arrangement between the parties, if the justices think fit to 
 oppose such an arrangement {%). 
 
 The word " forthwith," in s. 44 of the statute, does not mean 
 that the certificate is to be granted forthwith upon the dismissal of 
 the complaint by the magistrate, but forthwith upon the applica- 
 tion of the party entitled to the certificate. It is not the duty of 
 the magistrate to grant the certificate not being asked for it, but 
 when the magistrate is asked for it he cannot refuse it; it is a 
 record merely of what he has judicially decided, and is demand- 
 able ecc debito justitios. If, therefore, justices refuse to grant the 
 certificate on application made to them, the Court of Queen's 
 Bench will grant a mandamus to compel them to do it (o). 
 
 Pleas of justification. — ^When there are several distinct and 
 separate assaults charged in the declaration, the defendant, by his 
 plea of justification, must cover and answer the whole chain 'of 
 trespasses, and show the circumstances leading to each assault, and 
 exonerating the defendant from liability {p), and if any one of the 
 long series of wrongful acts is left unanswered, the plaintiff will be 
 entitled to a verdict (§■). But where the attendant circumstances 
 afford mere matter of aggravation and amplification of the original 
 trespass, and do not in themselves constitute substantive trespasses, 
 it is sufficient if the defendant justifies the principal act (r). 
 
 When the trespass is a continuing trespass, consisting of a 
 series of acts-connected together, but extending over a considerable 
 interval of time, the acts constituting the entire trespass are 
 divisible, and the defendant may plead not guilty to, or traverse, 
 some of them, and justify others. Where the plaintiff's declara- 
 tion alleged that the defendant entered the plaintiff's house and 
 stayed therein four days, and the defendant set up a justification 
 entitling him to enter and stay two days, to which the plaintiff 
 replied, denying his right to enter at aU, but alleging that if he 
 had the right, it was to stay two days only, and that he had stayed 
 
 (m) Emcock t. Somes, 28 Law J., M. (p) M'Cwday v. DriscoU, 1 C. & M. 
 
 C. 196. 618. Stammers t. Yearaley, 10 Bing. 35. 
 
 ■(n) Reg. t. Eemldns, 2 N. E., p. 62. Noden v. Johnson, 16 Q. B. 218. 
 
 (o) Co/star v. ffetherington, 28 Law J., (?) Buth v. Parker, 4 M. & So. 588 ; 1 
 
 M. C. 198, overruling Sex v. Bobinion, 12 B. N. 0. 72. 
 
 Ad, & E. 672. (»•) ^ayior v. Cole, 1 H. Bl. 561. 
 
602 ASSAULT — FALSE IMPRISONMENT. [CHAP. XII. 
 
 two days more without any colour of authority, it was held that 
 the trespass was divisible, and the replication good (s). If there 
 are divers counts in the plaintiff's declaration embracing divers 
 assaults, and the defendant by his plea narrows them all to one 
 assault, and justifies that, and the plaintiff takes issue, he is con- 
 fined to the assault set forth in the plea {t). 
 
 Defenee of neighbours and friends. — If the assault complained 
 of was committed by the defendant in the necessary and proper 
 defence of a third party from the unlawful violence of the plaintiff, 
 it is justifiable under a plea to the effect that the plaintiff first 
 assaulted A B, being the child or relative, wife, husband, servant, 
 apprentice, neighbour, or friend of the defendant, and was continu- 
 ing to do so, whereupon the defendant laid his hands on the 
 plaintiff to defend the said A B against the plaintiff, and to 
 prevent him from further assaulting the said A B (u). 
 
 Moderate correction iy parents, schoolmast&rs, masters of ships, 
 Sc. — To an action of trespass for an assault and battery, it is a 
 good plea to plead that the person assaulted was the son of the 
 plaintiff, and was an infant within the age of twenty-one years, 
 still domiciled under the paternal roof, and under tlie care and 
 control of the plaintiff, that he behaved saucUy and contumaciously 
 to the plaintiff; and refused to obey his lawful commands, where- 
 upon the plaintiff moderately and in a reasonable manner chastised 
 his said son (x) ; or that the plaintiff was the apprentice of the 
 defendant, and conducted himself improperly and saucily, where- 
 fore the defendant moderately chastised him, as he had a right to 
 do (y) ; or that the defendant was the head master of a school or 
 college of which the plaintiff was a pupil, that the plaiatiff was 
 a member of a society or combination of pupils for purposes 
 subversive of the disciphne of the school, wherefore, &c. (») ; or 
 that the defendant at the time of the assault was the captain of a 
 merchant vessel trading to China, and the plaintiff was a mariner 
 on board the vessel, serving under the orders of the defendant ; 
 that the plaintiff conducted himself in a mutinous and disorderly 
 manner, and refused to obey the lawful and necessary commands 
 of the defendant, whereupon the defendant caused the plaintiff to 
 be moderately and properly corrected and flogged (a) ; or that the 
 plaintiff was a passenger by the ship of which the defendant was 
 captain, and that by reason of the plaintiff's conduct it became 
 
 (») Loweth T. Smith, 12 M. & W. 582. (x) Winterhum v. Brooks, 2 0. & K. 
 
 Worth V. Temngtm, 13 M. & W. 789. 16. 
 
 (t) Oale T. Dairymph, By. & M. (y) Perm v. Wwrd, 2 C. M. & E. 338. 
 
 118. (s) FiMgeraU y. NoHhcote, 4 F. & F. 
 
 (u) Lewa/rd v. Sasehy, 1 Ld. Baym. 666. As to the powers of a schoolmaster 
 
 62 ; 1 Salk. 407 ; 3 Salk. 46. generally, see Ibid, in notes, p. 663. 
 
 {a) Lamb \, Bvmett, 1 Cr, & J. 295» 
 
SECT. 3.] • ACTIONS — PLEAS OF JUSTIFICATION. 603 
 
 necessary for the preservation of the discipline or for the safety of 
 the ship to imprison him (b). If the chastisement or imprisonment 
 has been immoderate, the excess must be specially replied. 
 
 Pleas of justification of imprisonment. — If a man does any act 
 which is primd facie a trespass, he must, unless the act were done 
 under the authority of an Act of Parliament enabling the defen- 
 dant to plead the general issue and give the special matter of 
 justification in evidence under it, justify the act, by showing the 
 authority under which he acted ; as, for instance, if there be a 
 judgment against a person, and process is issued to take him in 
 execution, and the sheriff takes him on that process, he must show 
 his authority for so doing (c). A plea of justification of imprison- 
 ment, ordered, or directed, or authorized, by a private individual, on 
 the ground that a felony had been committed, and that there was 
 reasonable ground to suspect the plaintiff of having committed 
 it, must state the particulars of the felony, and set forth circum- 
 stances showing a reasonable ground of suspicion against the 
 plaintiff, and reasonable and probable cause for the arrest, in 
 order that the judge may determine whether they amount to 
 reasonable and probable cause, not merely for suspecting, but for 
 arresting and imprisoning the plaintiff (<^). The question of reason- 
 able and probable cause is a question for the judge and not for the 
 
 "Probable cause," observes Tindal, O.J., "is, no doubt, a 
 question of law, and within the province of a judge to decide ; but 
 the jury must not only find the facts which are supposed to 
 constitute probable cause, but they are also warranted in fomung 
 their conclusion from those facts, and it is frequently difficult to 
 draw the line between matter of law and matter of fact " (/). If, 
 in the opinion of the judge, founded on facts proved before a jury, 
 there was reasonable ground for suspecting either that the plaintiff 
 had committed, or that he was about to commit, a felony, he 
 cannot recover damages from a constable for arresting and detaining- 
 him, although no felony had, in fact, been committed (g). The fact 
 that the defendant acted upon hearsay evidence alone iu causing 
 the plaintiff to be arrested, if such evidence could easily have been 
 tested, is one element — ^though not a conclusive one, if the infor- 
 mant be a trustworthy person, or other circumstances exist — in 
 considering the question of reasonable and probable cause (h). 
 
 (b) Aldworth t. Stewwrt, 4 F. & F. 957. (e) HaUes v. Marks, 30 Law J., Exch. 
 
 (c) As to pleas of justification of im- 392. 
 
 prisonment under colour of legal process, (/) Davit t. RinseCl, 2 M. & P. 604 ; 5 
 
 see post, ch. 14. Bing. 354. 
 
 {d) Maule, J., West v. Baxenddk, 9 (g) BechmthY. PhUby, 6 B. & C. 6S5; 
 
 C. B. 152. Braughim t. Jackson, 21 9 D. & R. 487. 
 
 Law J., Q. B. 265. Mme v. Kaye, 4 (h) Pen-ymwn v. Lister, L. E., 3 Exeh. 
 
 Taunt. 34. 197 ; 4 Engl. & Ir. App. 521, 
 
604 ASSAULT — FALSE IMPRISONMENT. [OHAP. XII. 
 
 A justification of an imprisonment on the ground that the 
 plaintiff had committed felony, and an abandonment of the plea 
 at the trial, or a failure to prove it, is evidence of malice, and a 
 great aggravation of the original wrong ; but a justification of a 
 false imprisonment on the ground that a felony had been committed, 
 and that the defendant had reasonable and probable cause to suspect 
 that the plaintiff had been guilty of it, is very different. Such 
 a justification is in the nature of an apology for the defendant's 
 conduct (i). 
 
 An imprisonment cannot be justified on the ground that the 
 plaintiff unlawfully entered the defendant's house and made a great 
 noise and disturbance therein, and would not depart when requested 
 so to do, whereupon the defendant sent for a police- of&cer and gave 
 the plaintiff into custody (k). To make the plea good, there must 
 be a direct allegation, either of a breach of the peace, continuing at 
 the time of the giving of the plaintiff into custody, or that a breach 
 of the peace had been committed, and that there was reasonable 
 groimd for apprehending its renewal (J). In an action for an 
 assault and false imprisonment the defendant justified, on the 
 ground that he was possessed of a house and shop, that the 
 plaintiff was unlawfully therein, and was requested to depart, 
 which he refused to do, whereupon the defendant gently laid 
 hands on him to remove him, that the plaintiff then assaulted the 
 defendant in the presence of a police-officer, and was given into 
 custody. At the trial it was not shown that any assault had been 
 committed by the plaintiff upon the defendant, and it was held 
 that the imprisonment was unlawful, and the plaintiff entitled to 
 amages (m). 
 
 If the defendant pleads that he had a right to imprison the 
 plaintiff for a certain reasonable time to preserve the peace, or pre- 
 vent him from disturbing divine service, the time is divisible, and 
 the plaintiff may by his replication deny that there was any cause 
 for imprisoning him, but that if there was, the imprisonment was 
 for a longer time than was justified by such cause (n). 
 
 If the defendant relies upon the fact of his being a superior 
 officer in the army or navy, and of his having imprisoned the 
 plaintiff in order to bring him before a court-martial, and that he 
 did so bring him, and relies on the sentence of the court-martial as 
 conclusive, he should plead the facts by way of estoppel, and not 
 leave them at large to be considered by a jury (o). However, even 
 
 (i) WarwicJe v. Foulkes, 12 M. &. W. Sc. N. K. 46. Pi-ice V. Seeley, 10 CI. & 
 
 509. ■ Fin. 39. 
 
 (i) Green t. Bwrtram, 4 C. & P. 308. (m) Meece v. Tayhyr, 4 N. & M. 469. 
 
 Rose V. Wilaon, 8 Moore, 362: 1 Bing. (n) Worth y. Teirinaton, 13 M. &W. 
 
 353. 789. 
 
 If) Grant t. Moser, 5 M. & Gr. 123 ; 6 (o) Eannaford t. Hmn, 2 C. & P. 148. 
 
SECT. 3.] ACTIONS — EVIDENCE. 605 
 
 thougli an officer be arrested and kept in confinement, for an inten- 
 tional act of discourtesy to his' superior officer, for several days, 
 and is not ultimately brought to a court-martial, no action lies if 
 the matter of complaint arises between military men subject to the 
 Articles of War, and be fairly cognisable before a military tri- 
 bunal {-p), even though it be done maliciously, and without reason- 
 able or probable cause {cj). 
 
 Evidence at the trial — Proof of an assault. — In order to prove an 
 assault, the plaintiff must show that he was actually struck by the 
 defendant, or that the defendant threatened to strike him (see arbte, 
 pp. 569, 570), or to inflict some injury upon him, having the means 
 of carrying that threat into effect. Where one assault only is 
 charged in the plaintiff's declaration of his cause of complaint, the 
 plaintiff is confined to the proof of one assault. He is not bound 
 to the precise time stated in the declaration, but may prove an 
 assault on another day (r). Having, however, proved one assault, 
 he cannot go on to prove other prior or subsequent distinct assaults, 
 for the purpose of enhancing the damages or selecting the best to 
 rely upon (s). If the assault is of a continuing nature, and consists 
 of a series of wrongful acts of violence, following one upon the 
 other, so as to constitute one continued wrongful act, then the 
 wrong being of a continuous nature, the various acts of violence 
 may be given in evidence as constituting one continuing tres- 
 pass (it). 
 
 Proof of an arrest and imprisonment. — It is not necessary in 
 order to constitute an arrest, that there should be a power of deten-' 
 tion of the person arrested. If, therefore, an officer, in the execu- 
 tion of civil process, touches a person through a window without 
 breaking the premises, this a good arrest {u). In order to establish 
 the fact of an imprisonment, the plaintiff must prove that some 
 restraint was placed upon his personal freedom by the defendant 
 (see ante, p. 575). 
 
 Aprimdfacie case will be established against a defendant in an 
 action for false imprisonment, by showing that the plaintiff was 
 taken into custody by a policeman, and that the defendant came 
 down to the station-house and signed a charge-sheet accusing the 
 plaintiff of having committed felony {v). It is not absolutely 
 
 (p) DawJdnsy.ZordSohehy,iV.k¥. East, 395. Taylor r. Smith, 7 Taunt. 
 
 806 
 
 156. 
 
 (q) DawUns v. Lord Paulet, L. R., 5 (t) MonUon v. AMey, 6 Mod. 38 ; 2 
 
 Q B 94, Cockbum, C.J., dies. ; and see Salk. 638. Burgess \.Fredove, 2 B. & P. 
 
 KdgUy v. Bdl, 4 F. & P. 763 ; and^orf, 425. 
 
 p 621. (") -4koji., 7 Mod. 8. Sandon v. Jervis, 
 
 (r) Ckeasley v. Bwmes, 10 East, 80. Ell. Bl. & Ell. 935; 28 Law S., Exch. 
 
 Polkmhorn \. Wright, 8 Q. B. 206 ; Litt. 156. Arrest upon mesne process is abo- 
 
 seet. 485. lished by 32 & 33 Viot. c. 62. 
 
 Is) Stante v. Pricket, 1 Campb. 472 ; {v) Harris r. Di^mm, ante, p. 596. 
 Bull. N. P. 86, English v. Pwavr, 6 
 
606 ASSAULT — FALSE IMPRISONMENT. [CHAP. XII. 
 
 necessary to show that the defendant gave any personal orders or 
 directions to the police touching the arrest, in order to establish a 
 primd facie case against the defendant. If it is shown that the 
 defendant made a charge against the plaintiff, and the surrounding 
 circumstances, and the conduct and acts of the defendant or his 
 servants, raise a fair and reasonable presumption that the wrongful 
 act was ordered or directed to be done by the defendant, there is 
 enough to call upon him to answer the charge and rebut the pre- 
 sumption ; and if no evidence is offered by him for that purpose 
 the jury are justified in finding him guilty (x). If the defendant 
 charges the plaintiff with a felony in the presence of a policeman, 
 and stands by and sees the plaintiff taken into custody, and is 
 silent, this is evidence of the defendant's having authorized or 
 directed the policeman to act in the matter (y). 
 
 A declaration alleging that the defendant caused the plaintiff to 
 be arrested and imprisoned without reasonable or probable cause, 
 on a false and malicious charge of felony, is a declaration in trespass 
 lor an assault and false imprisonment, and not an informal count 
 for a malicious prosecution, and^ therefore, requires no evidence of 
 malice or want of reasonable and probable- cause (a). 
 
 Evidence for the defence. — The facts which may be given in evi^ 
 dence under the plea of not guilty, to rebut a jprimd facie case 
 on the part of the plaintiff, have already been pointed out (ante, 
 pp. 598 — 600). If the defendant relies upon a plea of son assault 
 demesne (ante, p. 574), he must show an assault by the plaintiff 
 commensurate with the assault charged upon the defendant ; for if 
 tlie assault proved to have been committed by the plaintiff is 
 trifling, and altogether disproportioned to the assault committed by 
 the defendant, and forms no excusable or ju^stifiable cause for it, 
 the plaintiff will be entitled to a verdict (a). Where, under a plea 
 of son assault demesne, the defendant proved that the plaintiff got 
 off his horse, and held up his stick, and offered to strike the defen' 
 dant, and the latter thereupon gave him a beating, it was held that 
 a moderate battery was, by reason of the provocation, justifiable, 
 and that, if the plaintiff relied upon the fact of the defendant's 
 having beaten him more violently than he ought to have done, the 
 excessive beating should have been replied, and specially set forth 
 On the record (&). If the plaintiff complains of having befen struck 
 with a stick by the defendant, the defendant may, under a plea of 
 
 (as) Glynn v. Houston, 2 So. N. E. 554. {a) Dean v. Taylor, 11 Exoh. 68. Cock- 
 
 ly) Wcmner v. MdiMfm-d, i C. B., N. S. crofi r. /Smith, 1 Salk. 641 ; Litfcledale, J. 
 
 200. See Grinham-v.Waiey, ante, Tp. 595. Meeve y. Taylor, i'N. kM. HO. 
 
 (z) Olivers t. Savage, 5 Ell. & Bl. 697. (6) Dale tt. Wood. 7 Moore, 33. Fenn 
 
 Brandt v. Oraddoch, 27 Law J., E?ch. t. Ward, 2 C. M. & B. 338. 
 
 3U. 
 
SECT. 3.] DAMAGES KECOVEEABLE. 607 
 
 son assault demesne, show that the plaintiff first struck him with 
 his fist (c). 
 
 If the defendant rests his defence upon a plea of the previous 
 hearing and dismissal of the charge by magistrates (ante, p. 600), 
 he must produce the certificate of the fact of the dismissal, signed 
 by two justices, which will be primd facie evidence of the dismissal 
 of the complaint, without proof of the genuineness of the signa- 
 tures of the magistrates who have signed it {d). If the defendant 
 relies upon a conviction under the same statute, the record of the 
 conviction, or an examined copy of it, must be produced (e). If 
 the defendant relies upon some plea of justification or excuse (ante, 
 pp. 601 — 605), he must prove so much of his plea as constitutes 
 an answer to the assault to which it is pleaded. If he does that, 
 it is enough, and he is not bound to prove the residue of his 
 plea (/). If the plea of justification consists of two facts, each of 
 which would, when separately pleaded, amount to a good defence, 
 the plea of justification will be supported if one of these facts only 
 be found by the jury (g). 
 
 When the defendant justifies in defence of his possession of 
 realty or personalty, he must prove the fact of his possession at the 
 time he committed the assault, and that the assault was of a 
 defensive and not of an offensive character (h). 
 
 Damages recoverable. — " The court," observes Tindal, C.J., "never 
 interferes with the discretion of the jury as to the amount of 
 damages for an assault and false imprisonment, unless they are 
 grossly excessive, or clearly founded upon a mistaken or improper 
 view of the matter " (*). The circumstances of time and place as 
 to when and where the assault was committed, and the degree of 
 personal insult, must be considered in estimating the nature of the 
 offence and the amount of damages. " It is a greater insult to be 
 beaten upon the Eoyal Exchange than in a private place" (k). 
 When the assault is accompanied by a false charge, affecting the 
 honour, character, and position in society, of the plaintiff, the offence 
 wiU, of course, be gi'eatly aggravated, and the damages proportion- 
 ably increased ; and if the plaintiff has been assaulted and im- 
 prisoned under a false charge of felony, where no felony has been 
 committed (ante, p. 5Y8), or where there was no reasonable ground 
 for suspecting and charging the plaintiff, exemplary damages wOl 
 be recovered- 
 
 Oiromnstanees of provocation and excuse may be given in 
 
 (c) Blunt V. Bewumont, 2 Cr. M. & E. (g) SpUsbury v. Mickhihwaite, 1 Taunt. 
 
 412. Oakes v. Wood, 3 M. & W. 150. 149. 
 
 ((i) 8 & 9 Vict. c. 113, s. 1 ; post, eh. 21. (h) Dewn t. Sq^s/, 10 Bing-. 349. See 
 
 (c) Hwrtley V. Emdmwrsh, h. K., 1 C. P. ante, p. 572. 
 
 653. (i) EdgeU v. Francis, 1 So. N. E, 121. 
 
 (/) AtMnson t. Wame, 1 C. M, & E. JIucUe v. Money, 2 Wila. 206. 
 
 827. " W Tullidge v. Wade, 3 Wils. 18. 
 
608 ASSAULT— FALSE IMPRISONMENT. [CHAP. XII. 
 
 evidence, in mitigation of damages, so long as they do not amount 
 to a justification, and could not be pleaded as such (/). But if they 
 constitute an answer to the action by way of justification for the 
 assault, they must be pleaded, and cannot then be given in evidence 
 in reduction or mitigation of the damages (m). Where, in an action 
 for an assault, it was contended that the blow was unintentionally 
 struck, the defendant intending to strike A, when he accidentally 
 in the scuffle struck^, Bosanquet, J., told the jury that there could 
 be no doubt but that, as the defendant struck the plaintiff, the 
 plaintiff was entitled to a verdict,- whether it was done intentionally 
 or not, but that the intention was material in determining the 
 amount of damages (w). If it be proved that the blow was unin- 
 tentionally struck, and that an apology was immediately offered, 
 the evidence would tend materially to reduce the amount of 
 damages. 
 
 Where the plaintiff, in an action for an assault and false im- 
 prisonment, sought to make the defendant responsible for the 
 consequences of a remand by the magistrate, it was held that he was 
 liable only for the first imprisonment and taking before the magis- 
 trate, and not for the remand or any subsequent detention there- 
 under, they being the acts of the justice (o) ; but in an action for a 
 malicious prosecution, the defendant will be liable for the injury 
 resulting from a remand (^). Where a railway company removed 
 a passenger from the train (without any unnecessary violence) 
 under a mistaken impression that he had no ticket, and the 
 passenger left a pair of j-ace-glasses behind him, it was held he 
 could not recover the value of them as part of the damages for the 
 assault, although the court admitted it would have been otherwise 
 had he lost any part of his property in a scuffle with the railway 
 servants {g). 
 
 Damages, where there are severed co-trespassers. — Where several 
 persons have associated themselves together in the pursuit of a 
 common object, and they aU trespass upon the plaintiff's land in 
 following out the common design, each is answerable for the whole 
 of the damage done by aU (r). And whenever two persons have so 
 conducted themselves as to be liable to be jointly sued, each is 
 responsible for the injury sustained by their common act. The 
 true criterion of damage in such cases is the whole injury which 
 the plaintiff has sustained from the joint act of all. Where, there- 
 fore, two persons have a joint purpose, and thereby make themselves 
 
 (I) Post, ch. 22, s. 1. (o) locJi V. Ashton, 12 Q. B. 876. 
 
 (m) Watson \. Christie, 2 B. & P. 224. (p) Post, ch. 13. ' 
 
 !pecky. PUUvpt, 7 Dowl. 473. Lmgford (q) Glover v. Land. & S.-Westem . 
 
 . LaTce, 3 H. & N. 276. go., L. E., 3 Q. B. gg, 
 
 (n) James v. Cwmpbell, 5 C. & P. 372, ^r) Hum v. Oi^j-^j ante, p. 314. 
 
SECT. 3.] DAMAGES EECOVEKABLE. 609 
 
 joint-trespassers, and the one beats violently, and the other a little, 
 the real injury is the aggregate of the injury received from both, 
 and each is responsible for all the damage ; but the malignant 
 motive of one party cannot be made a ground of aggravation of 
 damage against the other, who was altogether free from any im- 
 proper motive (s). 
 
 Prospective damages. — In aU cases of serious assault the jury 
 should take into their consideration, in assessing the damages, the 
 probable future injury that will result to the plaintiff from the act 
 of violence perpetrated by the defendant, for the damages, when 
 given, are taken to embrace all the injurious consequences of the 
 wrongful act, unknown as well as known, which may arise here- 
 after, as well as those which have arisen, so that the right of action 
 is satisfied by one recovery. Thus, where the plaintiff had received 
 a blow on the head, and sustained little apparent injury, and 
 recovered small damages ; and afterwards, and in consequence of 
 the blow, a portion of his skull came away, and it then appeared 
 that the skull had been fractured, and he then brought a second 
 action, which was attempted to be supported on the ground that 
 the former recovery was for a mere battery and this for maihem, it 
 was held that no action lay, for there was but one blow, and that 
 was the cause of action in both suits, and not the consequences. 
 And the distinction was pointed out between this case, and 
 one of continuing nuisance, where each continuance was a fresh 
 nuisance {t). No fresh action, therefore, arises by reason of subse- 
 quent new damage resulting from the wrongful act, if the act 
 itself were actionable ; for, if the action were brought, all the 
 damages which he ever could recover for that injury could be 
 recovered by the plaintiff in that action if he succeeded (u). 
 
 Special damages in actions for false imprisonment. — Money paid 
 by the attorney of the plaintiff to procure the release of the 
 plaintiff from an unlawful imprisonment is recoverable as part of 
 the damages naturally and directly resulting from the wrongful 
 act, provided the plaintiff claims them in his declaration, " for a 
 man may say that he has been forced to pay that which another, 
 who is his agent, has been forced to pay for him "(a;). The 
 allegation that the plaintiff has been forced to pay, &c., is a 
 material allegation, and proof of actual payment is necessary to 
 support it. Every expense that the plaintiff necessarily incurs 
 in order to restore himself to a complete state of freedom from 
 imprisonment is recoverable as part of the damages, if the plaintiff 
 has claimed them in his declaration. "Where a plaintiff, by being 
 
 (s) Glarhy. Newiam, 1 £xch. 140. («) Coleridge, J., ^onomi v. PocJ/jomsc, 
 
 (t) PaUr V. Beal, 1 Ld. Eaym. 339, 27 Law J., Q. B. 390. 
 92. (») PrUehet v. Boevey, 1 Cr. & M. 778 
 
610 ASSAULr— FALSH IMPEISONMENT. [CHAP. XII. 
 
 bailed, ©btained only an imperfect release, being in the hands and 
 at titet naerey of persons who might at any time render him back 
 toi gaol, it was held that the expense of removing himself from 
 that position was only one of the steps necessary for completing 
 his discharge- from the original imprisonment, and that, if it. were 
 necessary for the plaintiff to set aside an iaquisition in order to 
 restore himaeilif to a complete state of freedom, he was entitled to 
 recover the expense thereof, aa part of the daimages of the original 
 wrongM aict (fji. 
 
 Evidence, in mMfftmSim of damages.— Im an action for false 
 imprisGmnaent in giving thei plaintiff in charge to a police-offieer, 
 it may be sliowm, in mitigation of damages, that the plaintiff had 
 for several days annoyed and insmlted the defendant, by following 
 him about the streets, and t&lling him to^ pay his debts (z), ^ufe 
 all facts: aoad ciTCTimstanees amotmting to a justification, or to a. 
 contradiction of a material fact admitted upon the record, must b© 
 specially pleaded, and cannot be given in evidence in mitigation 
 , of damages {a). In an actiom of assault, therefore, a defendant 
 cannot, under a plea of not guilty, prove that he committed the 
 assault in seK defenee, or in fear of his life ; and a sheriff who 
 has imprisoned the plaintiff cannot, if he pleads not guilty only, 
 give' evi'dence of his writ in mitigation of damages^ (6). 
 
 The recovery of damages in. an action for false imprisonment is 
 no irair to am acftion. for a- malicious prosesuttCHi (c)., 
 
 ^) FijMiU V. Samett, t BE & Bl. 238 y (a,) Unford v. Lalcey 27 Law J., Bxcb. 
 23 Law- J., Q, B. 7. 334. 
 
 fe)' 7%)mai t. PimeU, 1 C. & P. 807; W) Bpeck T. P%iMipg, 5 M. & W. 281. 
 
 aBd!se»j>8S*.,ch. 22. (c) (Shmt- v. Wcun'en, 9 Exoh. 379; 23! 
 
 Law J., Exch. 121 J pod, ch, 22. 
 
611 
 
 CHAPTER Xin. 
 
 OF MALICIOUS CONSPIRACT, MALICIOUS PEOSECUTlOlir, AND 
 AEBEST— MAlieiOtra ABUSE OF LEGAL PROCESS. 
 
 S'ECTioJSf I. — OfmaUeioas confpiraey, pfa- Malioioua assertion of a legal right — 
 seeution, amd (arrest — Malieimiis abuse' of Malicious and unfounded actions — 
 legal process. — Madinious conspiracy — Malicious execution — Maliciously cans. 
 Malicious exhibition of artfcles of the ing an extent to issue — Malicious pro- 
 peace — Malicious proseontion — What oeedings in bankruptcy — Malicious 
 is evidence of want of reasonatble and abuse of legal process — Malicious de- 
 probaibl© caiuse, and of malice — Prose- teutioa of judgment-debtors — Mali- 
 cutions by persons conscious of the • cious arrest — Proof of actual custody, 
 innocence of the accused — Prosecu- Seotioit II. — Of actions for' malicious 
 tions under the advJce of ccjunser — crlTest emd maUcious proseetttion. — Pair- 
 Malieionsi complaints, before magis- ties, to be made defendants — Pendency 
 trates, causing a wasraint to be impro- of a rule for a eriminal information 
 perly issued — Eatification of pending against the defendant — Declaration of 
 proceedings — Causing search warrant the cause of action — Pleadings, defences, 
 to issofr— Malfeious'iudietmenI)— Mali- and evidence — ^Damages recoverable, 
 eious prosecaition by court-martial-^- 
 
 SECTION I. 
 
 OF MALIC«>trS CONSMEACT, MALICIOUS' PROSECUTIO'S' AND- AKREST^— 
 MALICIOtrS ABUSE OF LEGAL PKOCESS; 
 
 Malicious eompiraey,. — A conspiracy to do an unlawful act, and 
 the doing ©if tlie act in pursuance of the conspiracy to the damage 
 of the plaintiff, create a good cause of action against all the parties 
 t& the conspiracy.. A criminal proceeding by way of indictment 
 lies for the mere act of conspmng, but a civil, action is not main- 
 tainable unless the plaintiff has been aggrieved, or has sustained 
 " actual l^al damage" by some overt act done in pursuance of the 
 eonspiracy {a). 
 
 Where the plaintiff's declaration of his cause of action set. forth 
 that he exercised the profession of an actor, and was engaged to 
 perform in. the character of Hamlet, in Covent Garden Theatre, 
 and that the defendants, and others maliciously conspired together 
 to prevent the plaintiff from so performing, and from exercising 
 
 (a) Crompton, J., Castriqm-v. Behrens, 80 Law J., Q. B. 168. 
 
 B K 2 
 
612 MALICIOUS COKSPIRACY. [CHAP. XIII. 
 
 his profession in the theatre, and in pursuance of the conspiracy- 
 hired and procured divers persons to go to the theatre and hoot 
 the plaintiff, and the persons so hired did in pursuance of the con- 
 spiracy go to the theatre and hoot the plaintiff, and interrupted his 
 performance, and prevented him from exercising his profession, 
 and thereby caused the plaintiff to lose his engagement and divers 
 gains and emoluments, and to be brought into public scandal and 
 disgrace, it was held that the declaration disclosed a good cause of 
 action (&). 
 
 But a conspiracy to institute legal proceedings and to obtain a 
 judgment by means of false testimony, and the giving of such 
 testimony, and the procurement of the judgment, to the pecuniary 
 loss of the plaintiff, cannot be made the gi'ound of an action for 
 damages so long as the judgment remains unreversed, whether the 
 judgment be the judgment of one of our own courts of justice or 
 the judgment of a foreign tribunal, if it appears that the plaintiff 
 had an. opportunity, if^ he had thought fit to avail himself of it, of 
 appearing and controverting the false testimony, or if it can be 
 shown that he did appear and was heard, and that the matter was 
 decided against him (c). 
 
 Where the plaintiff's declaration of his cause of action set forth 
 that he was possessed of premises on which he carried on the 
 business of a skin-dresser, and that the defendant and another 
 person unlawfully and maliciously conspired together to procure 
 possession of a portion of the said premises, and set up thereon a 
 secret stiU for distilling spirits ; that in pursuance of such con- 
 spiracy they induced the plaintiff to let to them a portion of the 
 premises, by representing that they wanted them for the purpose 
 of carrying on the business of ink-manufacturers ; and that having 
 thereby got possession of that part of the premises, they set up 
 thereon certain private stills, and illegally distilled spirits, and 
 caused it to a,ppeai that the plaintiff had himself set up the stiUs, 
 and was illegally distilling upon his premises, and that the plaintiff 
 in consequence thereof was arrested, convicted, fined, and im- 
 prisoned, averring that the plaintiff was wholly ignorant of the 
 stills being on his premises ; it was held, that the action was not 
 maintainable, as it did not appear that the arrest, conviction, and 
 imprisonment of the plaintiff were the direct result of the wrongful 
 act of the defendant, or that the defendant should in anywise be 
 made responsible for the illegal acts contemplated by him. The 
 defendant's act 6f conspiring, it was observed, merely enabled hirw 
 to obtain possession of part of the plaintiff's premises. The only 
 
 « 
 
 (6) Gregory v. Duhe of Brunswick, 6 (c) Oastriqne v. Sehrens, 30 Law J., 
 
 M. & Gr. 205 ; ante; pp. 10, 11. Q. Ji. 163. 
 
SECT. l.J MALICIOUS PKOSECUTIOX. C13 
 
 ground of damage was the plaintiff's being illegally convicted. 
 And if it could have been shown that the conspiracy was entered 
 into for the purpose of procuring a conviction of the defendant for 
 having possession of a secret still, or for unlawfully distilling, the 
 only remedy would have been an -action for a malicious prosecution ; 
 and to such an action the conviction of the defendant would be an 
 answer, for it must be assumed that the facts relied upon by him 
 were brought before the tribunal for his exculpation, and were 
 decided against him {d). 
 
 If two confidential agents of a partnership conspire together to 
 obtain for themselves the shares of the partners at an undervalue 
 by keeping the accounts of the partnership fraudulently, so as to 
 conceal from the partners the true value of their shares, they will' 
 be responsible both at common law and in equity for the damage 
 resulting from their breach of duty (e). 
 
 Malicious exhibition of articles of the peace against another, sup- 
 ported by a false oath of threats having been used, may be made 
 the foundation of an action for damages, notwithstanding that 
 the accused person has been required to find sureties, and been 
 imprisoned for default, for the truth of the articles cannot be 
 controverted before the court, which has no discretion, and can 
 pronoimce no judgment on the truth of the facts, but is bound to 
 act upon the statement sworn, to before them (/). Where, there- 
 fore, the plaintiff's declaration of his cause of action set forth that 
 the defendant falsely and maliciously, and without any reasonable 
 or probable cause, made information on oath before a magistrate 
 that the pflaintiff had used certain specified threatening language 
 to him, whereby the defendant went in fear of bodily harm, and 
 then caused the plaintiff to be arrested and brought before justices 
 of the peace, and required to find sureties, and to be imprisoned, 
 it was held that the declaration disclosed a good cause of action, 
 ■although it appeared that the proceeding terminated against the 
 accused, it being founded upon a statement on oath, which the 
 person charged was not at liberty to controvert (jf). 
 
 Malicious prosecution. — To put the criminal law in force mali- 
 ciously, and without any reasonable or probable cause, is wrongful ; 
 and if thereby another is prejudiced in property or person, there is 
 that conjunction of injury and loss which is the foundation of an 
 action Qi). "Malice alone is not sufficient, because a person 
 actuated by the plainest malice may nevertheless have a justifiable 
 
 (d) Barber t. Lesiter, 7 0. B., N. S. Venafra v. Johnson, 3 M. & So. 8i7; 10 
 183. Bing. 301. 
 
 (e) Walsham v. ;Stoinio», 33 Law J., Ch. (g) Steward t. Gromett, 1 C. B., N. S. 
 68. 191 ; 29 Law .J., C. P. 170. 
 
 (/) JRex V, Doherty, 13 East, 171. (A) ChurchUl v. Siggm, 3 Ell. & Bl. 
 
 937. 
 
614 MALICIOUS PKOSECUTION. [OIIAP. XUI- 
 
 reason for the prosecutioH. On tihe other hand, the substantiating 
 the accusation is not essential to exonerate the accuser from 
 liability to an action, for he may have good reason to make the 
 charge, amd yet be compelled to abandon the prosecution by the 
 death or absence of witnesses, or the difficulty of producing 
 adequate legal proof The law, therefore, only renders him respom- . 
 sible where malice is combined with want of probable cause " (i). 
 But though abandoning a prosecution be not of itself proof of 
 want of probable cause, yet where the prosecution is ;persiBted in 
 amd kept hanging over the head of the plaintiff for a long time, 
 and IB then dropped at the very hour of trial, there is strong 
 ground for supposing that the -proseeutor liad no justifiable reason 
 for commencing it (k). 
 
 What is evidence of a want of reasonable and prohabh cause, 
 aiid of malice. — The want of reasonable and probable cause for a 
 malicious prosecution, and the evidence of malice, depend so much 
 upon the particular circumstances of the individual ease as to 
 render it impossible to lay down any general rule upon the sub- 
 ject, but the facts ought to satisfy any reasonable mind that the 
 accuser had no ground for the proceeding but his desire to injure 
 the accused (Z). If circumstances of suspicion esdsted which might 
 have h^een readily removed by proper inquiry, and no inquiry at all 
 was made (m), there is evidence of a want of reasonable and pro- 
 bable cause, and if in the opinion of the judge there was no reason- 
 able or probable cause for the jn-osecution, the jury may, from that 
 fact alone, infer malice (n). If a person prefers an indictment, or 
 sets the criminal law in motion, knowing at the time he does so 
 that he has no reasonable ground for it, that alone is evidence of 
 malice on his part. " By the term ' malice ' is meant any indirect 
 motive of wrong. Any motive other than that of simply instituting 
 a prosecution for the purpose of bringing a person to justice, is a 
 malicioiTS motive on the part of the person who acts under the 
 influence of it. If a ease is trumped up out of very weak and 
 flimsy materials, for purposes of annoyance ■or of frightening other 
 people, and deterring them from eommitt;ing depredations -upon 
 private property, there is no legitimate foundation for a criminal 
 prosecution, and persons who put the criminal law in motion under 
 such circumstances lay themselves open to a Aarge of being 
 influenced by malice" (o). 
 
 JFrom the most express malice, the want of proljable cause 
 
 (i) Tindal, C.J., Wiltmts v. Taylor, 6 (m) Ferryman v. Lister, ante, p. 603. 
 
 Bing. 186 ; 3 M. & P. 350 ; 2 B, & Ad. (n) Butst v. Gibbons, 30 Law J., Exeh. 
 
 ■845. 75. 
 
 (Ic) Gaselee, J., 6 Bing. 190, (o) Stevens v. Mid. Rail. Co., 10 Exch. 
 
 (I) Tindal, C.J., 6 Bing. 186; 2 B. &Ad. S56 ; 23 Itm J., Exch. 328. 
 845. Farmer v. Dmimg, 4 Burr. 1972, 
 
SECT. 1.] MALICE — 3?E0BABIiE 'CAUSE. <615 
 
 cannot be implied. A man from a malicioias motive may take up 
 a prosecution for real guilt, or lie may from circumBtainees whicli 
 fee really believes proceed upon apparent guilt, ami in neither ease 
 is be liable to an action. With ■whatever feelings <of malice the 
 defendant may have acted in instituting the prosecution, still, if 
 there was reasonable and probable cause for it in the opinion of the 
 judge, the defendant is entitled to a verdict {p). 
 
 Prosecution by persons who wMnifest a eonsci&imness of the 
 mnocence of the accused. — Proof of the absence of belief in the 
 truth of the charge by the person making it and putting the 
 criminal law in motion, is almost always involved in the proof of 
 malice. Where the plaintiff complained of a prosecution for 
 perjury, which the defendant had instituted against him for the 
 puipoee, as the plaintiff alleged, of suppressing e^ddenoe, and it 
 was proved ttiat the defendant, on being told that there was mot 
 sufficient ground for the indictment, declared that it was no 
 matter, and that it would tie up the mouth of the plaintiff m a 
 proceeding in which he would be likely to ^ve evidence against 
 the defendarut, it was held that the judge was right in asking the 
 jury whether the prosecutor believed at the time he preferred the 
 indictment that the defendant had really been gui'ilty of perjury, 
 and whether he instituted ihe prosecution bond fide under such a 
 belief or from an improper motive, and in telling them, that if the 
 •defendant had acted from an improper motiTe they might infer 
 malice (f). 
 
 If a person has been assaulted with a consciousness that, by 
 his own misconduct, he provoked the assault, and has no reason- 
 able ground to complain of it, and he nevertheless prefers an 
 indictment, upon which the plaintiff is tried and acquitted, it is 
 for a jury to say whether the defendant instituted the prosecution 
 with a consciousness that he was wrong ; and, if they think so, 
 ttere is a total absence of reasonable and probable cause for it, 
 ■and evidence from which malice may fairly be inferred (r). If the 
 defendant appears to have put the criminal law in motion for the 
 purpose of enforcing payment of a debt, or obtaining the restitution 
 of -goods uidawfully detained, without having any xeatonable 
 •ground for preferring a criminal charge, there is evidence of 
 malice, and of want of reasonable and probable cause for the 
 prosecution (s). 
 
 If a man's own declarations and conduct, or the surrounding 
 
 (p) Patteson, J., Amer v. Ambler, 10 (r) Sinton r. Heather, 14 M. & W. 
 
 Q. B. 257. Baiks v. Marks, 7 H. & N". 131. 
 
 56. («) Sroohi v. Warmck, 2 Stark. 393. 
 
 (q) Saddnch v. Seshp, 12 Q. B. 267. M'Donald t. Sooke, 2 B. 11. C. 219, 
 Sroad t. Ham, 8 Sc. 50 ; 5 B. N. C. 722. 
 
616 MALICIOUS PROSECUTION. [CHAP. XIII. 
 
 circumstances of the case, shov that an act, which was made the 
 foundation for a charge of felony, was not believed by the 
 prosecutor himself to be a felony, there is no reasonable or 
 probable cause for a charge of felony. If the circumstances show 
 that the prosecutor believed that a person he proceeded against as 
 a thief took the goods under an erroneous notion that he had a 
 lien upon them, or had a right to take and. detain them, there is 
 evidence of malice, and of want of reasonable and probable cause 
 for the prosecution for a felony (if). In an 'action for a malicious 
 prosecution of the plaintiff by the defendant for obtaining goods 
 from the defendant by false pretences, it appeared that the plaintiff, 
 who had been insolvent, went to the shop of the defendant in his 
 absence, and obtained five shillings' worth of marble hall-paper 
 from his assistant, saying that it was for Mr. Hills, a neighbour, 
 and that the bill was to be made out to Mr. Hills, which was done, 
 and the bill was delivered to the plaintiff, who took it and the 
 paper away with him; but Mr. Hills had not authorized the 
 plaintiff to get the paper, and would not ' pay for it, and the 
 defendant was told this a few hours after the paper had been 
 obtained, and knew wbo the plaintiff was, and where he resided, 
 but made no complaint against him for three months ; and being 
 asked the reason, said that the transaction had slipped his memory 
 until he was going through his books, when, seeing the entry of 
 the paper against Mr. Hills, he went to him, and finding that he 
 stiU repudiated the transaction, and refused to pay for the paper, 
 he went before a magistrate, and charged the plaintiff with having 
 obtained the paper by false pretences. Upon these facts Wight- 
 man, J., asked the jury, first, whether they thought the plaintiff 
 obtained the paper by falsely pretending that it was for Mr. HiUs ; 
 and this question being answered in the af&rmative, they were 
 then asked whether they thought that the defendant, at the time 
 he went before the magistrate, believed that the plaintiff intended 
 to defraud him of the price of the paper ; and, this' question being 
 answered in the negative, Wightman, J., held that there was no 
 reasonable and probable cause for the prosecution (u). 
 
 Any statements or declarations made by the defendant tending 
 to show that he was actuated by spite and ill-will in instituting 
 the prosecution are of course evidence of malice (x). "When a 
 person says to the prosecutor of an indictment for perjury that 
 there really is no case against the man he has indicted, and the 
 prosecutor answers, 'I indict him to stop his mouth,' there is 
 reasonable evidence from which a jury may infer that the prose- 
 
 (0 Huntley v. Simson, 2 H. & N. 600 ; (x) MicheU v. Williams, 11 M: & W. 
 
 27 Law .T., Jixch. 1S4. 217. 
 
 {u) Williams t. Banks, 1 F. & F. 557. 
 
SECT. 1.] MALICE — PROBABLE CAUSE. 617 
 
 cutor knows that the man is not guilty, but only indicts him for the 
 purpose he has mentioned " (i/). ^ 
 
 The fact that overseers of the poor have taken out a summons 
 before justices, and have caused a warrant of distress and a warrant 
 of arrest to issue against the plaintiff for the non-payment of poor- 
 rates, they knowing at the time that the plaintiff was bankrupt, 
 and had obtained his protection, is no evidence of malice to 
 support an action for a malicious prosecution against the over- 
 seers (z). 
 
 Prosecutions under the advice of counsel. — It is no answer to an 
 action for a malicious prosecution to show that the defendant was 
 bound over by recognizance to prosecute and give evidence, if it 
 appears that the prosecution originated in malice, and that the 
 recognizance was the result of prior malicious proceedings, insti- 
 gated by the defendant (a). Counsel's opinion is of no avail to a 
 man who has instituted an unfounded and malicious prosecution. 
 " It would be a most pernicious practice," observes Heath, J., " if 
 we were to introduce the principle that a man, by obtaining the 
 opinion of a counsel, by applying to a weak man or an ignorant 
 man, may shelter his malice in bringing an unfounded prosecu- 
 tion" (6). 
 
 " A prosecution," observes Cockburn, C. J., " though in the outset 
 not malicious, may nevertheless become malicious in any of the 
 stages through which it has to pass, if the prosecutor, having 
 acquired positive knowledge of the ianocence of the accused, per- 
 severes malo animo in the prosecution, with the intention of pro- 
 curing ^er nefas a- conviction " (c). 
 
 In an action for a malicious prosecution it appeared that the 
 defendant had sued the plaintiff in the county court, who pleaded 
 a set-off, and the defendant, in order to get rid of the set-off, forged 
 a receipt of the plaintiff for a sum of money, and swore before the 
 county court judge- that the handwriting to that receipt was the 
 handwriting of the plaintiff. The plaintiff denied it, and the county 
 court judge, believing the plaintiff to have been guUty of perjury, 
 committed him for trial, and bound over the defendant to prosecute. 
 The defendant proceeded to the assizes, went before the grand jury 
 and procured a bill of indictment to be found against the plaintiff, 
 and stuck to the charge at the trial, and endeavoured to maintain 
 it by perjured evidence, but the plaintiff was acquitted. The 
 plaintiff then brought an action agauist the defendant for a mali- 
 cious prosecution, and having satisfied a jury that the defendant 
 
 («) Maule, J., Seslop t. Chapman, 23 Fitz John t. Mackinder, 30 Law J., C P 
 
 Law J., Q. B. 49. 257. 
 
 (z) Philips r. Naylor, 4 H. & If. 565 ; (b) Hewlett v. Cruchley, 5 Taunt. 283. 
 
 27 Law J., Exch. 222. (c) Fitz John, t. MacMnder, 30 Law j'. 
 
 (a) Dubois v. KeatSi 11 Ad. & E. 332. C. P. 264. 
 
618 MAIilCIOUS PROSECUTION. [CHAP. XIII. 
 
 preferred the charge with the knowledge of its falsehood, recovered 
 200^. ; and it was held that the action was maintainable, ibecauee 
 the defendant persisted to the last in the false charge, having no 
 reasonable or proljabk cause for the charge, but preferring it with 
 knowledge of its falsehood, and endeavouring at the trial to main- 
 tain it with further and perjured evidence (d). "But for the order 
 of the county court judge," observes Willes, J., " the action would, 
 beyond all doubt, havelDeen maintainable, and then that order ougM 
 not to aid the defendant ; first, because it was occasioned by Ms 
 own contrivance and wrong ; and, secondly, becau^ as a Judicial 
 act it is void, having been obtained by fraud on the court" (e). 
 Althoug9i ty]ie defendant was compelled to prosecute, there was no 
 compulsion upon him to persist in a false charge. He might have 
 discharged his recognizances by appearing and telling the truth. 
 " It is supposed," observes Loiud I>enman, " that a charge cannot be 
 preferred before a grand Jury maliciously, if the party be bound to 
 prefer it, though the recognizance be obtained in consequence of his 
 malicious proceeding. I have not the smallest doubt that a recog- 
 nizanee so obtained does not Justify a party, or prevent his sub- 
 sequent conduct from being malicious." "* If an unwilling party,* 
 further observes Littledale, J., " were bound over by recognizance 
 to prosecute, the recogmzanee would furnish an answer for this 
 reason only, that in such a case the plaintiff could not prove that 
 the defendant was actuated by a malicious motive " (/). 
 
 Malicious -complaints lefon ■magistrates — Maliciously causing a 
 justice's warrant to be issued against the plaintiff. — If a defendant 
 maliciously and without reasonable and probable cause has attended 
 before a magistrate and made a complaint, and induced the magis- 
 trate to issue a warrant against the plaintiff, the defendant is 
 responsible in damages in an action for a malicious prosecution. 
 If he goes before a magistrate and states that he has Just cause to 
 suspect that the plaintiff has robbed him, and upon that representa- 
 tion a warrant is granted, it does not lie in his mouth to say that 
 the magistrate ought not to have granted the warrant ; and if he 
 has knowingly made a false charge, and had no lesllond fiie ground 
 of suspicion, he is answerable for it (g). But to show that the 
 defendant was influenced by malice, it must be proved that the 
 charge was wilfully false, or that the statements made by Mm 
 before the magistrate were untrue to his knowledge, at the time he 
 made them Qi), or that they were of such a nature that no well- 
 intentioned person woidd state them, and found a criminal charge 
 upon them, without iiscertaining whether they were true or false, 
 
 (d) FUz JoTm\. MacJdnder, 30 Law J., (/) Dubois v. Keats, 11 Ad. & E. 332. 
 C. P. 257. ■ ig) Elsee v. SmUh, 1 D. & E. 105. 
 
 (e) 29 Law J., C. P. 170. (A) Cohen v. Morgan, 6 IX & E. 8. 
 
SECT. l.J COMPLAINT BE-FOEE' WAGISTEATES. 619 
 
 the means of inquiry and of ascertaining tlie truth being swithin 
 Ms reach, if he had thought fit to avail himself of them. " A man 
 may prefer a charge either on the foundation of what he knows or 
 of what he suspects. But there is a wide difPerenice, as regards 
 both the accuser amd the party accused, whether the charge be made 
 on the one ground or the other. That which is founded on the 
 accuser's own knowledge will require proof to that extent to warrant 
 such a charge ; whereas that which rests on suspicion only will be 
 satisfied by circumstances sufficient to induce suspicion on the 
 mind of a cautious person." " This distinction," observes Bayley, J., 
 "beftween a direct charge and one upon suspicion only is well 
 known. I may know that a person has stolen my property by 
 having seen him commit the act, or by having heard him confess it, 
 and in either of these eases the charge would |)ro6eed directly from 
 my own knowledge, but information to a less extent might reason- 
 ably create in me a suspicion, and then the charge would proceed 
 in a form less direct " (i). 
 
 It has been held, that if a person goes and lays his complaint 
 of the loss of his property before a magistrate, and teUs him of its 
 having been taken or appropriated by the plaintiff, the complain- 
 ing party is not responsible for what the magistrate may think fit 
 to do upon the strength of this information. If, therefore, the 
 magistrate, acting upon the statement or deposition bond fide, given, 
 treats the matter a,s a felony, and issues his warrant for the appre- 
 hension of the plaintiff on the charge of felony, aad in so doing 
 forms an erroneous judgment, and conceives that to be a felony 
 which is not a felony, but only matter for a civil action, the com- 
 plaining person, who has thus set the magistrate in motion and 
 caused the warrant to be issued, is not responsible for the erroneous 
 judgment of the magistrate, and the acts consequent thereupon (^). 
 But if there is no reasonable or probable cause for a charge of 
 felony, and a charge of felony is made, the party preferring the 
 charge will be responsible for it, though he acted under the advice 
 of the magistrate, and preferred the charge at his suggestion. 
 
 It is often a doubtful question whether a particular offence 
 amounts to a felony, and it often depends upon the fact of the 
 prisoner's having acted with conscious dishomesty, or under a notion 
 of right on his part. But " some persons suppose that no man can 
 lay his hands on goods that do not belong to him without being 
 guilty of felony. If you could get at the bottom of a man's mind, 
 he might say he was justified, because the plaintiff had no right to 
 do it;, no matter how honest his intention ; but if that is his 
 
 (i) Dwm V. Noake, 6 M. & S. 32. v. Whke, 5 H. & N, 371 ; 29 Law J., 
 
 Qc) Leigh V. VlAl, 3 Esp. 165. WyaU Exch, 183 ; mts, pp. 594—596. 
 
620 MALICIOUS PROSECUTION. [CIIAP. XIII. 
 
 opinion, it is a blunder on his part, and one of those hlunders/' 
 observes Eramwell, B., " for which a man who commits it should be 
 punished, as it is very likely that the person charged with felony 
 through the blunder will, as long as he lives, be sometimes asked, 
 whether he had not been had up before the magistrate for felony" (l). 
 
 It is not necessary, in order to maintain an action against a 
 person for having made a false and unfounded charge of felony 
 against anothe'r before a magistrate, to show that the charge was 
 taken down in writing, and acted upon by the magistrate. But it 
 is necessary that the jury should be satisfied that it was made to 
 the magistrate w'ith a view of inducing him to entertain it as 
 a charge of felony (m). 
 
 Continuance by defendant of proce'edings commenced without Ids 
 knowledge. — ^When the proceedings have not been commenced by 
 the defendant, but have only been continued by him, his responsi- 
 bility commences at the point at which he becomes cognisant of 
 the proceedings. And there is a material distinction between 
 instituting a prosecution and merely attending the hearing upon a 
 proceeding already commenced. It does not at all follow that the 
 defendant, by attending the hearing, adopts the proceeding, or 
 renders himself responsible for the motives or actions of the person 
 who instituted it, although that person may be an agent of the 
 defendant (n). 
 
 JEffect of the complaint or inforwMion before the magistrate being 
 followed up by a conviction of the plaintiff. — A conviction of the 
 plaintiff by a magistrate, so long as it has not been reversed on 
 appeal, affords a conclusive answer to the charge that the complaint 
 or information which led to it was founded in malice, and was 
 preferred without reasonable or probable cause (o). 
 
 Maliciously causing a search warrant to issue. — If a person, 
 without reasonable and probable cause, and from malicious or 
 corrupt motives, causes a search warrant to issue,' he is liable to an 
 action for damages at the suit of the party who has been damnified 
 by the execution of the warrant; but if a person goes before a 
 magistrate, and lays before him fair grounds of suspicion- for the 
 magistrate to exercise his judgment iipon, and the magistrate thinks 
 fit, in the exercise of the functions of his office, to issue the warrant, 
 the person so attending before the magistrate is not then responsible 
 for the issue of the warrant, unless he has knowingly or recklessly, 
 and without due inquiry, sworn to what was false (p). 
 
 (I) Suntley v. Simson, 27 Law J., Exola. post, ch. 15, and p. 628. 
 137 ; 2 H. & X. 600. (p) Cooper v. Booth, 3 Bsp. lii; cited 
 
 (m) CliwJce V. Postan, 6 C. & P. 423. 1 T. E. 535. PhUips v. Naylor, 4 H. & 
 
 (n) Weston v. Beeman, 27 Law J., Exch. N. 565 ; 27 Law J., Exch. 222 ; 28 Law J., 
 
 57. Exch. 226. Wyatt v. WhiU, supra. 
 
 (o) Mclhr V. Badddmj, 2 Cr. & M. 678; 
 
SECT. l.J MALICIOUS AND UNFOUNDED ACTIONS. 621 
 
 Malicious indictment. — If an indictment preferred by the 
 defendant contains several charges against the plaintiff, and he is 
 convicted on some and acquitted on others, this does not prevent 
 the plaintiff from maintaining an action for a malicious prosecution 
 in respect of the charges of which he was acquitted {q). The 
 question whether there was or was not probable cause for some 
 parts of the charge would affect the amount of the damages 
 recoverable, but not the plaintiff's right to a verdict (r). 
 
 Malicious prosecution ly court-martial. — An action for a 
 malicious prosecution wiU not lie at the suit of a subordinate 
 ■ officer against his commanding officer for maliciously, and without 
 reasonable or probable cause, bringing him to a court-martial, as 
 it is an act done in the course of discipline, and under the powers 
 legally incident to his situation in the public service (s). Nor can 
 an action be brought by a private soldier against his commanding 
 ofi&cer for a malicious discharge {t). 
 
 Malicious assertion of a legal right. — The malicious assertion of 
 a legal right is not actionable. " Let a prosecution be never so 
 maliciously carried on, yet if there be probable cause or ground 
 for it, no action for a malicious prosecution will lie " (m). No man 
 can be sued for the exercise of . his legal right to issue execution 
 upon a judgment, though it be averred that he acted maliciously, 
 and without reasonable and probable cause {v). 
 
 Malicious and unfounded actions. — If one man prosecutes a 
 civil action against another maliciously, and without reasonable 
 and ptobable cause, an action for damages is not maintainable 
 against the prosecutor of the action. Thus, if one man slanders 
 another in an action in a proper court no action wiU lie for it (w). 
 There is a great difference between the bringing of an action and 
 indicting maliciously and without cause. When a man brings an 
 action he claims a right to himself, or complains of an injury done 
 to him ; and if a man fancies he has a cause of action he may 
 sue and put forward his claim, however false and unfounded it may 
 be. The common law, in order to hinder malicious, and frivolous 
 and vexatious suits, provided that every plaintiff should find 
 pledges, which were amerced if the claim was false. But that 
 method became disused, and then to supply it the statutes gave 
 costs to the successful defendants. But there was no amercement 
 upon indictments, and the party had not any remedy to reimburse 
 
 (q) Reed t. Taylor, 4 Taunt. 617. (t) Freer t. MarshaU, 4 P. & P. 485. 
 
 (r) Delisser v. Tovme, 1 Q. B. 343. See iUd, 486, in notl See ante, 
 
 Ettis v. Abrahams, 8 Q. B. 713. , pp. 604-5. 
 
 (s) Johnstone v. SuUon, 1 T. B. 548. (u) Anon, 6 Mod. 73. 
 
 Sutton y, Johnstone, 1 Bro. P. C. 76. (v) Roret v. Leim, 6 D. & L. 373. 
 
 FUyyd v. Barker, 12 Eep. 23. Dawhins y. Magnay v. Burt, 5 Q. B. 394. 
 
 Lord Bohehy, ante, p. 605. (w) Beauchamp v. Croft, Keilw. 26. 
 
622 MALICIOUS EXECUTION. [CHAP. XIII. 
 
 himself but by action. But if A sues an action against B for mere 
 vexation, in some cases, upon particular damage, B may have an 
 actioDy but it is not enough to say that A sued him falso et 
 malitiose, but he must show the matter of the grievance specially, 
 so that it may appear to the court to be manifestly vexatious (x). 
 
 Maliciously putting the. process of the Mm ifi motion in the na/nie 
 of a pawper or insolvent. — No action wiU lie for improperly 
 promoting a civil action in the name of a. third person,, unless it 
 be alleged £^nd proved to have been done maliciously, and without 
 reasonable or probable cause ( y}, ;. but if there be malice and want 
 of reasonable or probable eaasei the action will lie, provided there 
 be also legal damage (2). If the plaintift' in an action charges the 
 defendant with having laaliciously, and without any reasonable or 
 probable cause, commenced and proseeiated an action against him 
 in the name of a third person for his (the- defendant's) own 
 benefit, whereby the plaintiif has sustaiuued damage, and it appears 
 that the party s® wrongfully put fouward by the defendant was 
 a person in solvent cixcumstances, the action will be deleaitedi, 
 inasmuch as the award of Coats upon the faUuife of that action 
 would, in contemplation of law, have been a full compensation for 
 the unjust vexatian. caused by the bringing of the action, and no 
 damage woiald b& deemed tohave been sustained ; but if it appears 
 that in the previous, action there was jmdgmienit of non-suit, with 
 an award of costs, and that the plaintiff was a pauper, or an 
 insolvent, atod eoiuid pay no costs, and that the defendant knew of 
 the insolvency of the plaintiiff at the time he induced the latter to 
 bring the action, and had himself no interest im' the subject-matter 
 of th® suit, there would appear- to be a good ground of action {a}^ 
 
 McoMemwdy issuing execution for a larger sum than is due upon 
 a judgment. — Process of execution on a judgment for the purpose 
 of obtaining the sum leeorded is prirmd facie lawful, and the 
 judgment creditor cannot be rendered responsible in damages for 
 issradng execution for more than is due upon, the judgment, unless 
 some actual damage can be shown to have been sustained by the 
 plaintiff ttoerefeom.. It is. not enough for the plaintiff to show thsut 
 he was arrested and kept in, custody for a. gceateE am.ount than 
 was due upon the judgment (6). He must also prove that by 
 reason of the arrest and detention for the larger sum his imprison- 
 ment was prolonged, or the expense of obtaining Ms diseharp 
 
 {(c) Scmle.v.MabextSf'hJjd.'Baym.S.T.i; 21 Law J., C. P. 3. Aiwood r. Monger, 
 lSalk..l3. , , . Stylesj, 37& Watefer t~ Fveemem, Moh. 
 
 (2/) Flight V. £emam, i Q. B. 883. 266. Savile-v. Soberk, 1 h&. Eaym. 3785 
 
 (s) Williams, J., in GeUereU y. Joneg, 12 Mod. 208, SmkeU Y. Waisom. 8 M, & 
 
 11 0. B. 730 ; 1 Roll. Abr. Action sub "W. 691. 
 
 Case, H. pi.. 1, p. 101. (6) See Germd y. £ems, L. E., 2 C. P. 
 
 («)■ CoUerOl V. Jones, 11 C. B. 728,, 730 ; S05. 
 
SECT, l.j MALICIOUS PROCEEDINGS IN BANKRUPTCY. 623 
 
 increased. His: remedy, where the thing has been done in- 
 advertently, without malice, is to apply to the court, or a judge, 
 that he. may be discharged, and that satisfaction may be entered up, 
 on payment of the balance justly due. " But it would not be 
 creditable to our jurisprudence," observes Lord Campbell, " if the 
 debtor had no remedy by action where his person or his goods have 
 been taken in execution for a larger sum than remained due. upon 
 the judgment, the judgment creditor knowing the sum for which 
 execution is sued out to be- excessive, and his motive being to 
 oppress or injure his debtor. The. court or judge to whom sum- 
 mary application is made for the debtor's liberation can give no 
 redress beyond putting an end to the process of execution on 
 payment of the sum due, although by the. excess the debtor may 
 have suffered a, long imprisonment, and have been utterly ruined 
 in his circumstances " (e). An action, therefore, is maintainable 
 against a ju.d!f ment creditor for maliciously and without reasonable 
 or probable cause indorsing a writ of ca. sa., issued on such judg- 
 ment to levy a larger sum than was due, and causing the debtor to 
 be arrested thereunder, and it is not necessary for the plaintiff 
 before bringing the action to obtain his discharge from custody by 
 order of the court or a judge (i)- But wherei Se/ore judgment the 
 plainitiff paid part of the debt for which he was sued, and sub- 
 sequently judgment was signed and a ea. sa. issued for the whole 
 amount, it was held that no action lay, so long as the. judgment 
 stood for the full amount (e). 
 
 Malieiously musing an extent to iasme.~~i.i a defendant, from 
 feelings, ©f ill-will, and with a view to annoy and injure the plain- 
 tiff, prays an extent to secure a debt due from the plaintiff to the 
 crown, under the pretence that the debt is in danger of being lost 
 to the crown, when he knows it not to be in danger, or has no 
 reasonablei or probable cause for believing it to be in danger, he 
 will be responsible in damages, in an action for a malicious prose- 
 cution. Such a psoceedimg is calculated to affect the plaintiff'si 
 credit, and bring demands, upon Mm, and be. productive of injurious 
 and even ruinous consequences to him. In the action for, the 
 malicious prosecution, the law requires that the writ of extent 
 should) be. traced to its close, and that may be done by showing it 
 to be discharged by the court, though upon an arrangement, and 
 by consent (/). 
 
 Meduious- pvoemding^ m hankrv^tcy. — An action for a maJicious 
 
 (c) ChwfcAiU T. Siggers, 3 Ell. & Bl'. (c?) Cfildmg, y.Eyre, 31 Law J.,. C. P. 
 
 908 ; 23 Law J., Q. B. 308. Jmimgs. v. 174. 
 
 Florence, 2 C. B., N. S. 467 ; 26 Law J., (e) Buffer \. AUen,,!,. E., 2 Exch. 15. 
 
 C. P. 277. Weniworth v. Bidlen, 9 B. & 0. (/) Craig v. Sasdl,, 4 Q. B. 499. 
 849. Saxon v. Castle, 6 Ad. & E. 659. 
 
624 MALICIOUS ABUSE OF LEGAL PROCESS. [CHAP. XIU. 
 
 prosecution will lie against persons who petition for an adjudica- 
 tion in bankruptcy, without reasonable or probable cause, and 
 knowingly and wilfully, or recklessly, swear to depositions false in 
 fact {g). In order, however, to prove a want of reasonable or pro- 
 bable cause, the proceedings must be superseded or set aside before 
 the commencement of the action, for the very existence of a com- 
 mission of bankruptcy has been held to be evidence of probable 
 cause Qi). The mere fact, however, of the proceedings having been 
 superseded or set aside, does not of itself establish the fact of the 
 want of probable cause for them, and the plaintiff must give some 
 jprimd facie evidence of want of probable cause, in order to put the 
 defendant upon proof of the existence of probable cause (*). 
 
 Malicious ahise of legal process. — Whoever makes use of the 
 process of the court for some private purpose of his own, not 
 warranted by the exigency of the writ or the order of the court, is 
 amenable to an action for damages for an abuse of the process of 
 the court. Thus, where the defendant having instituted legal pro- 
 ceedings against the plaintiff, and caused a writ to be issued 
 against him, employed the officer charged with the execution o 
 the process to do a specific thing that he was not warranted by the 
 writ to do, viz., to use it as a means of compelling £he plaintiff to 
 give up a ship's register, it was held that the defendant was respon- 
 sible in damages to the plaintiff for causing him to be arrested and 
 detained until he had given up the register, and for the injury he 
 had sustained in beiug deprived of the register which he had given 
 up to obtain his release from custody. And when the complaint 
 is, that the process of the law has been abused and prostituted to an 
 illegal purpose, it is -perfectly immaterial whether or not it issued 
 for a just cause of action, or whether the suit was legally termi- 
 nated or not (J). 
 
 Malicious detention of judgment debtors after tender of the debt 
 and costs. — The Common Law Procedure Act, 1852, 15 & 16 Vict, 
 c. 76, authorizes the sheriff, gaoler, or person in whose ^custody a 
 prisoner may be under a writ of ca. sa., to discharge such prisoner 
 on receiving an order in writing from the attorney in the cause ; 
 but the attorney is not to give the discharge without the consent of 
 his client, nor is the sheriff or gaoler, or person having the prisoner 
 in custody, to liberate him, if the judgment creditor gives him notice 
 not to do it. If, therefore, the latter,' after tender of the amount of 
 the judgment debt and costs, refuses to consent to the discharge of 
 
 (g) Farley v. Dariks, 4 Ell. & Bl. 499. Johnson v. Emerson, L. E., 6 Exch. 
 
 Brown t. Chapman, 1 W. Bl. 427. 329. 
 
 (A) Whitworth v. Hall, 2 B. & Ad. (j) Grainger v. HiU, 5 Sc. 580 ; 4 B. 
 
 698. See post, p. 628. N. C. 212. Heywood v. CoUinge, 9 Ad. 
 
 (i) Say V. Weakley, 5 C. & P. 361. & E. 274, Sep ^eighly v. BeU, 4 F. & F. 
 Cotton T. James, 1 B. & Ad, i34. See 763. 
 
SECT. 1.] MALICIOUS AEEEST. 625 
 
 the prisoner, or interferes to prevent his liberation, he will be guilty 
 of a wrongful act, and may render himself liable to an action for 
 maliciously refusing to discharge the prisoner, and detaining him 
 unlawfully in custody (Jc). 
 
 Malicious arrest. — By 32 & 33 Vict. c. 62, s. 6 (which is a le- 
 enactment in effect of 1 & 2 Vict. c. 110, ss. 1 to 10), arrest on 
 mesne process is abolished; but it is enacted, that if a plaintiff 
 shall at any time before final judgment prove, by evidence on oath, 
 to the satisfaction of a judge, that he has a cause of action against 
 the defendant to the amount of 50^. or upwards, and that there is 
 probable cause for believing that the defendant is about to quit 
 England, then it shall be lawful for the judge to order the defen- 
 dant to be arrested and imprisoned for a period not exceeding six 
 months, unless he gives the requisite security, not exceeding the 
 amount claimed in the action, that he will not leave England with- 
 out the leave of the court. 
 
 The foundation, therefore, on which the liability of a person for 
 a malicious arrest must now rest is, that the party obtaining the 
 order or authority from a judge for the arrest has imposed on the 
 latter by some false statement, some suggestio falsi or suppressio 
 veri, and has thereby satisfied him not only of the existence of the 
 debt to the requisite amount, but. also that there is reasonable 
 ground for supposing the debtor to be about to quit the country. If, 
 without fi-aud or falsehood, upon an afi&davit (l) fairly stating the 
 facts, the party succeeds in satisfying a judge that the defendant is 
 about to quit the country, and so obtains an order for a capias to 
 arrest him, he is not liable to an action, though the defendant had 
 no such intention. 
 
 The party arrested has the power of making an application to 
 a judge or the court praying to be discharged out of custody, and 
 the discharge wUl be granted as a matter of course, if such party 
 succeeds in satisfying the judge or court that he has not, nor ever 
 had, the intention imputed to him ; but the discharge affords no 
 ground of action against the party procuring the arrest, if the 
 original order for the aj-rest was fairly obtained (m), as it is a judicial 
 act, and a person concerned in enforcing it is not responsible for its 
 correctness (n). Where, however, the facts are not truly stated, 
 and the court or judge has been put in motion withoiit reasonable 
 and probable cause, and the party making the affidavit (Z), 
 or procuring the order for the arrest, was guilty of falsehood, or 
 of culpable negligence in swearing to facts without knowing 
 
 (h) Orozer v. PiUing, 4 B. & C. 26. (m) Danids v. Fielding, 16 M. & W. 
 
 {1} See Reg. Gen. Mich. T. 1869, B. 6 ; 207. _ 
 
 L. K 5 Q. B. 670, 671. W WiUimns ti Sm\t7i, ante, p. 596. 
 
626 MALICIOUS AKREBT AND PROSECUTION. [CHAP. XIII. 
 
 ■whether they were true or false, there will be evidence of malice, 
 and he will be responsible in damages (o). 
 
 Any statements or declarations made by the defendant tending 
 to show that he had no reasonable or probable cause for believing, 
 and did not believe, that the plaintiff was about to quit England, 
 are of course evidence against him to show that he was actuated 
 by malicious motives in procuring the order for the arrest (p). 
 
 The arrest by a sheriff, under a writ from any of the Queen's 
 courts, of a person privileged from arrest by reason of his attendance 
 as a vyitness under the process of another court, does not form the 
 ground of any action at law against the sheriff or his of&cer, though 
 it is alleged to have been done maliciously (q). 
 
 What amounts to a malicious arrest — Froof of actual custody,-^ 
 Where the person submits to the process, or to the commands of 
 an officer intimating that he is in custody, there is a perfect arrest. 
 Actual contact is not necessary, as we have seen {ante, p. 575), to 
 constitute an arrest. Where the defendant, for purposes of extortion, 
 had placed a v?rit in the hands of a sheriff's officer, with instructions 
 to arrest the plaintiff unless he would give up some property) and 
 the. officer finding his way to the plaintiff's sick-bed produced the 
 writ and demanded the property, telling the plaintiff that unless 
 it was delivered up to him a man would be left with him, and 
 the plaintiff yi'elded to the pressure and gave up the property^ it 
 was held that these facts amounted in judgment of law to an 
 arrest (r)i 
 
 SEOTIOE- 11. 
 
 OF ACTIONS I'OE MALICIOUS AJREEST AND MALICIOUS, PEOSEOUTION (s), 
 
 Parties to he made defendants. — It is immaterial whether the 
 defendant alone makes the charge, or whether he stirs up and 
 procures another to do it. In either case he is liable in damages (t). 
 If, for the gratification of his maHce, a man gives his agent a 
 plenary authority to institute a prosecution against another, he is 
 equally responsible for all that is done under it ; and if the agent 
 have no cause for the proceeding, the principal is responsible, for it 
 is his duty to inquire whether the proceeding be well founded or 
 not. If, as against the agent, there was an absence of reasonable 
 and probable cause for the prosecution, that is sufficient as against 
 
 (o) GiUons y Mison Z C. B. 185. fr) Grcdnger y. HiU, 5 Be, m. 
 
 Boss Y.Norman, 5 F^xch. 359. (,) gee 30 & 31 Vict. c. U2, B. 10, 
 
 o If^/n*? ''• ^**''"*' * ^"^ '^- ^- 839; ««te, p. 556. 
 
 ,; V^- ^"^- n ^r. ^ (') ^»^^ V. SoheHs, 1 Ld. Eaya. 377. 
 
 (g) Magnay v. Bmt, 5 Q. B. 381. j""- «" 
 
SECT. 2.] ACTIONS— PARTIES. 627 
 
 the principal, by whose authority aud direction the agent acted (u). 
 But if the agent institutes the proceeding of his own head, and 
 Avithout the instigation or direction of the principal, the latter will 
 not be responsible for the unauthorized proceedings of his agent, 
 unless he adopts them and continues them with knowledge of all 
 the circumstances. . When proceedings have been commenced by 
 an agent without the knowledge of the principal, the responsibility 
 of the latter commences at the point at which he becomes cognisant 
 of the proceedings (x). 
 
 If an attorney maliciously, and without reasonable and probable 
 cause, knowing that his client has no just claim against the plaintiff, 
 assists in .putting the law in motion, and effects an unlawful and 
 malicious arrest, he, as well as his client who has authorized the 
 proceeding, will be responsible in damages (y). If, in an action for 
 a malicious prosecution against A and B, supported by proof that 
 both A and B entered into a joint recognizance to prosecute and 
 give evidence, it appear that A only employed the attorney, and 
 that B attended before the magistrate and the grand jury at the 
 request of the attorney, B will be entitled to an acquittal (s). 
 
 A railway company is not liable for a malicious prosecution 
 instituted by their servant without the knowledge or direction of 
 the company, and a doubt has been thrown out as to whether a 
 corporation can be actuated by that sort of malice which is essential 
 to the maintenance of an action for a malicious prosecution (a). 
 
 If an attorney appears on behalf of a railway company to 
 prosecute for an assault made upon one of the company's servants, 
 and the prosecution fails, and an action for a malicious prosecution 
 is subsequently brought, it wiU be assumed, until the contrary be 
 shown, that the depositions of the witnesses were taken by or known 
 to the attorney, and therefore to the company, before the prosecu- 
 tion was undertaken, and therefore if the depositions disclose a 
 reasonable and probable cause for the prosecution, the company 
 will not be liable, the onus of proving that there was no reasonable 
 or probable cause lying upon the plaintiff (&). 
 
 Pendeney of a rule for a criminal information against the 
 defendant. — The mere fact of a criminal information being pending 
 against the defendant on the prosecution of the plaintiff, for the 
 same subject-matter, is no ground for staying the proceedings in 
 the action ; but if the plaintiff has resorted to his private remedy 
 by way of action, the court will not in general allow him to 
 
 (u) Michell v. WilUams, 11 M. & W. (a) Stevens v. MU. Sail. Co., 10 Eich. 
 
 213. 352 ; 23 Law J., Exch. 328. See ante, 
 
 (x) Weston v. Beeman, 27 Law J., Exch. p. 596—7. 
 
 57. (6) Walker v. South-East. Ewy., L. E., 
 
 (y) atocTcley t. Homidge, 8 0. & P. 16. 5 0. P. 640. 
 
 (z) JSager v. Dyott, 5 C. & P. 4. 
 
 B s 2 
 
628 MALICIOUS AEEEST AND PROSECUTION. [CHAV. XIII. 
 
 proceed with the criminal information until the action has heen 
 discontinued (c). 
 
 Declarations for a malicious prosecution. — The declaration must 
 aver the termination of the prosecution, and set forth the means by 
 which it was ended ; otherwise the plaintiff might recover in the 
 actiofi, and yet be afterwards convicted on the original prosecu- 
 tion (rf). It must also aver that the proceedings terminated in 
 favour of the plaintiff, if from their nature they be capable of such 
 a termination, and it is not sufficient to allege that the plaintiff was 
 convicted, and that there was by law no appeal against such con- 
 viction (e). If there be any special damage it should be stated, 
 with such reasonable particularity as to give notice to the defendant 
 of the peculiar nature of the injury (/). 
 
 Of the plea of not guilty in actions for a malicious arrest and 
 malicious prosecution. — The plea of not guilty in actions for a 
 malicious arrest, malicious prosecution, and maliciously presenting 
 a petition in bankruptcy, puts in issue the fact of the arrest of the 
 prosecution, &c., by or through the instrumentality of the defendant, 
 the question of malice, and of the existence of reasonable and 
 probable cause for the prosecution (g), but not the fact of the dis- 
 continuance or termination of the proceedings. If, therefore, the 
 declaration avers the discontinuance of the prosecution, or the 
 termination of the proceedings by a dismissal of the complaint, 
 charge, or petition, these material allegations must be specially 
 traversed, in order to put the plaintiff upon proof of them (A). 
 
 Pleas of justification. — If the defendant, instead of relying on 
 the plea of not guilty, elects to bring the facts before the court in 
 a plea of justification, he must allege as a ground of defence that 
 the facts and circumstances, which he relies upon as showing 
 reasonable and probable cause for the institution of the prosecution, 
 were known to him at the time the charge was made, and formed 
 the reason and inducement for his putting the law in motion (i). 
 
 Evidence at the, trial — Proof on the part of the plaintiff (k) — 
 Malicious arrest or prosecution. — In an action against a defendant 
 for a malicious arrest under a judge's order, the plaintiff must, 
 under the plea of not guilty, be prepared to prove the affidavit 
 made by the defendant before the judge by production of the 
 
 (c) Caddy v. Barlow, 1 M. & By. 278. Atkinson \. EaUigK, 3 Q. B. 85. Had- 
 Rex V. Sparrow, 2 T. B,, 198. dmck v. Beslop, 12 ib. 275. 
 
 (d) Fiaher v. Bristow, 1 Doug. 215. (i) Delegal t. HigMey, 5 Sc. 169 ; 3 
 Arundell v. Tregono, Yelv. 116. B. N. C. 950. As to interrogatories in 
 
 (e) Basibi 7. MaUhewi, L. E., 2 C. P. such a case, see Stewart v. Smith, L. K., 
 684. 2 C. P. 293. 
 
 (/) Post, eh. 22, B. 1. (A) As to interrogatories, where the 
 
 (g) Cotton V. Browne, 3 Ad. & E. action is against a municipal corporation, 
 
 312. (^ see M'Padsen v. Mayor, die, of Imierpeol, 
 
 (A) Watkini v. Lee, 5 M. & W. 270. L. E., 3 Exch. 279. 
 
SECT. 2.] ACTIONS — ^EVIDENCE. 629 
 
 origipal or an examined or of&ce copy (I), and must show that the 
 defendant made the affidavit, or used it (m). The jiidge's order for 
 holding the plaintiff to bail should be proved by production of the 
 original order, purporting to be signed by one of the judges of the 
 superior courts (n). The arrest of the plaintiff by virtue of the 
 order, at the instance of the defendant, or by his procurement, may 
 be established by the defendant's declarations and conduct in the 
 matter of the arrest, and the surrounding circumstances of the 
 case, as well as by the production of the writ and warrant. 
 
 Where the plaintiff put in evidence the judge's order, and a 
 writ of capias which had been issued thereon and lodged with the 
 sheriff, but the capias was not shown to have been retiirned, 
 neither was any warrant produced, but it was proved that on the 
 defendant being told that the plaintiff was in custody he said, as 
 he had got him fast he would punish him, and further, that his 
 attorney attended before the judge to oppose the plaintiff's 
 discharge, it was held that there was sufficient proof against the 
 defendant, without the production and proof of any warrant (o). 
 If the defendant has not by his conduct and declarations admitted 
 that the arrest was made by his orders and directions, the writ 
 imder which the arrest was effected may be proved by production 
 of the original writ, sealed with the seal of the court; or if it has 
 been returned and become matter of record, it may be proved by a 
 certified or examined copy. The warrant from the sheriff to his 
 officer may be proved in like manner (p), and the fact of the arrest 
 may be established by the evidence of the officer who effected it, 
 and by the plaintiff's own testimony in the matter (q). 
 
 The fact of the defendant's name being on the back of the bill 
 of indictment does not prove that he was the prosecutor of' the 
 indictment, for the name of any person who can give evidence 
 respecting the subject-matter of the indictment may properly be 
 put upon the back of the bill (r). The mere fact of a person 
 having attended at the trial and given evidence as a witness, is no 
 proof of his having instituted or instigated the prosecution (s). 
 Having proved that the defendant instigated the prosecution, it 
 must then be shown that it was done maliciously, and without 
 reasonable and probable cause (see ante, p. 614). The plaintiff' 
 must give general evidence, showing that there was no reasonable 
 ground for the prosecution (t). 
 
 (0 Arandell v. White, 14 East, 224. (o) Peti-ie v. lamont, 3 M. & Gr. 707. 
 
 Crook T. Dowlvtu), 3 Doug. 75. Gasburn {p) Post, ch. 21, s. 1. 
 
 T. Reid, 2 Moore, 60. (q) See ante, p. 575 et aeq. 
 
 (m) Bees v. Bo^oen, McClel. & Y. 392. (r) Oirlinrjton v. Fitfield, 1 Ventr. 47. 
 
 See ante. p. 625—6. (s) Ecujer r. Dyott, 5 0. & P. 5. 
 
 (n) 8 & 9 Viot. 0. 113, s. 2, post, ch. 21, (t) Indedon t. Berry, 1 Campb. 204, n. 
 s. 1. See post, p. 631. 
 
630 MALICIOUS PROSECUTION. [CHAP. XIII. 
 
 Proof of malicious informations and eomplaifits "before fnagis- 
 trates.—Th.& 11 & 12 Vict. c. 42, s. 17, requires all magistrates 
 before whoni any person shall appear, or be brought charged with 
 any indictable offence, to take the statement on oath or affirma- 
 tion of those who know the facts and circumstances of the case, 
 and to put the same into writing, and cause them to be read 
 over to, and signed by, the witnesses, before they commit the 
 accused person for trial, or admit him to bail. These depositions 
 are afterwards (s. 20) to be delivered to the proper officer of the 
 court in which the person committed or bailed is to be tried, and 
 the latter is (s. 27) to be furnished with a copy thereof on application 
 to the officer or person having the custody of the same. 
 
 Where the charge or complaint, or the examination, is by law 
 required to be.taken down in writing, it is always to be presumed 
 that this was done, although the party was discharged on the ground 
 that no case was made out against him. Unless, therefore, positive 
 evidence be given that the examinations were not taken down, oral 
 evidence cannot be given of what took place before magistrates (m)", ■ 
 for where matters are required by statute to be reduced into writing 
 for the purpose of evidence, the writing is considered to be the best 
 evidence, and must be produced, unless it can be shown to have 
 been lost or destroyed. If it be proved that no depositions were 
 taken, or that they were taken but not signed, then oral evidence 
 of what took place before the magistrates is admissible {x). 
 
 In order, therefore, to prove the proceedings before magistrates, 
 it is in general necessary to serve the magistrate's clerk with a sub- 
 poena duces tecum, if the proceedings are in his custody; but if they 
 have been returned to the clerk of the peace, or his deputy, or to 
 the clerk of the arraigns, then the officer who has the custody of 
 them is the proper person to be summoned to produce them. If 
 the officer in whose custody they ought 'to be, if they exist, has 
 searched for them and cannot find them, secondary evidence may 
 be given of their contents (y). The oath and handwriting of the 
 defendant should by proved, and the issue of the warrant on the 
 strength of the information. If the charge was dismissed and was 
 not taken down in writing, or if it was of such a nature, or made 
 under such circumstances, that there was no obligation imposed by 
 law upon the justices to take it down in writing, the nature of it 
 may be proved by any person who was present and heard the 
 charge made (z). 
 
 In all actions against persons for going before justices of the 
 
 j: 
 
 (u) Pa/rsons v. Brown, 3 0. & K. 296. {y) Freeman v. ArheU, 2 B. & C. 494. 
 
 (x) Jewns T. Wheedon, 2 M. & Bob. (z) Olm'he v. Postm, 6 0. & P. 423. 
 
 486. See E. v. Heed, M. & M. 403. 
 
SECT. 2.] EVIDENCE— -WANT OF PROBABLE CAUSE. 631 
 
 peace, and lodging a complaint or information against the plaintiff, 
 and obtaining a warrant for his arrest, and causing him to be 
 arrested, it must be proved that the complaint and wrongful acts of 
 the defendant in the matter were done maliciously, and without 
 Teasonable and probable cause. If it appears that the defendant 
 laid his case before a magistrate, that the magistrate issued a 
 summons, which was served on the plaintiff, requiring him to 
 appear and answer the complaint, and that the plaintiff chose to 
 take no notice of the summons, whereupon the magistrate directed 
 a warrant to issue, -upon which the plaintiff was arrested, the defen- 
 dant will not be responsible for the arrest, as it was caused by his 
 own negligence and misconduct, rather than by the complaint made 
 against him by the defendant {a). 
 
 Proofhy certified copy of the record, of the prosecution and acquittal- 
 — ^The 14 & 15 Vict. c. 99, enacts (s. 13), that in order to prove the 
 trial and acquittal of any person charged with any indictable 
 offence, it shall not be necessary to produce the (original) record of 
 the trial and acquittal, or a copy thereof, but it shall be sufiB.cient 
 that it be certified, or purport to be certified, under the hand of the 
 clerk of the court, or other officer having the custody of the records 
 of the court where the acquittal took place, or by the deputy of 
 suchclerk or other officer, that the paper produced is a copy of the 
 record of the indictment, trial, and acquittal, omitting the formal 
 parts thereof (5). It has been declared by Willes, C.J., that "every 
 prisoner, upon his acquittal, has an undoubted right and title to a 
 copy of the record of such acquittal, for any use he may think fit 
 to make of it, and that, after a demand of it has been made, the 
 proper officer may be punished for refusing to make it out " (c). 
 
 Proof of malice and of want of reasonable and probable cause. — 
 Scandalous charges and accusations made by the defendant against 
 the plaintiff in connexion with the prosecution are evidence of 
 malice. Where the defendant put an a'dvertisement in the news- 
 papers of the finding of the indictment by the grand jury, the 
 advertisement was held to be admissible in evidence to prove the 
 malice of the defendant, although an information had been granted 
 for it as a libel, but the jury Were directed not to consider it in 
 estimating the damages {d). 
 
 The question of probable cause is a mixed proposition of law 
 and fact. Whether the circumstances alleged to show it probable, 
 
 (a) Philips v. Nayhr, 4 H. & N. 615 ; And see the statute, 46 Edw. 3, cited 
 
 27 'Law J., Exch. 224 j 28 ih. 225. See Taylor on Evidence, § 1340, p. 1265, n. 4, 
 
 ante, p. 594 — 5 ; post, ch. 14, s. 2. 4tli ed., and printed in the appendix to 
 
 (5) Post, ch. 21, s. i. Hunter y. French, the 9th yol. of the Statutes at Large, 
 
 Willes, 517. OaMy v. Baa-low, 1 M. & p. 45, 4to ed. 
 Ey. 277,. (d) Chambers \, EoUmon, 2 Str. 691. 
 
 (c) Sex r. Brangan, 1 Leach, C. C. 27. 
 
632 MALICIOUS PKOSECUTION. [CHAP. XIII. 
 
 or not probable, are true and existed, is a matter of fact ; but 
 whether, supposing them to be true, they amount to probable 
 cause, is a question of law for the decision of the judge (e). The 
 bond fide belief of the defendant in the truth of the charge pre- 
 ferred by him against the plaintiff, and in the plaintiff's guilt, is 
 essential to the establishment ;_of reasonable and probable cause 
 for a criminal prosecution, and it is for the jury to determine what 
 was the defendant's belief in the matter, and whether, if he believed 
 the plaintiff to have done Avhat he imputed to him, he had reason- 
 able grounds for that belief; for if he formed his conclusion rashly 
 and inconsiderately, he is not warranted in acting on his belief (/). 
 If the want of reasonable and probable cause for the prosecution 
 is so strong and plain as to amount to evidence of malice, that 
 must be shown by the plaintiff. An abandonment of the prosecu- 
 tion, or an acquittal for want of evidence, is, as we have seen, 
 no proof of malice, or of the prosecution being unfounded and 
 unjust (g). 
 
 The rule is, that however complicated the facts may be on 
 which the question of reasonable and probable cause may depend, 
 the judge must leave the facts to the jury, and on the facts found by 
 them determine for himself whether there is reasonable or pro- 
 bable cause or not (h). "There have been some cases," observes 
 Tindal, C. J., " which appear at first sight to have somewhat relaxed 
 the application of the rule, but there has been no real departure 
 from it. In some cases the reasonableness and probability of the 
 ground for the prosecution has depended, not merely upon the 
 proof of certain facts, but, upon the question whether other facts 
 which furnished an answer to the prosecution were known to the 
 defendant at the time it was instituted. In other cases the ques- 
 tion has turned upon the inquiry, whether the facts stated to the 
 defendant at the time, and which formed the ground of the prose- 
 cution, were beUeved by him or not. In. other cases the inquiry 
 has been whether, from the conduct of the defendant himself, 
 the jury will infer that he was conscious he had no reasonable 
 and probable cause. But in these, and many other cases which 
 might be suggested, it is obvious that the knowledge, the belief, 
 and the conduct of the defendant, are so many additional facts for 
 the consideration of the jury, so that, in effect, nothing is left to 
 the jury but the truth of the facts proved and the justice' of 
 
 (c) Susst V. Gibbom, 30 Law J., Exeh. (/) Douglas v. Oorbett, 6 Ell. & Bl. 
 
 75. Johnstone t. Sutton, 1 T. E. 645. 514. Dawson t. TanSandau,l'i.W.'R. 
 
 Panton v. Williams, 2 Q. B. 193. James 616. 
 
 V. Phelps, 11 Ad. & E. 488 ; Anon. 6 (g) Purcell t. Macnamara, 1 Campb. 
 
 Mod. 73. Clements v. Ohrly, 2 C. & K. 202 ; 9 Ea.st, 363 ; see ante, p. 614. 
 
 689. Mitchell t. Jenkins, 5 B. & Ad. (h) Douglas v. Corbett, 6 Ell. & Bl. 
 
 594. 515. See anie, p. 603. 
 
SECT. 2.] ACTIONS— EVIDENCE — DAMAGES. 633 
 
 the inference to be drawn from such facts, the judge determining 
 as matter of law, according as the jury fi.nd the facts proved or 
 not proved, and the inferences warranted or not, whether there 
 was reasonable and probable ground for the prosecution, or the 
 reverse" (i). 
 
 Proof on the, 'part of the defendant. — If the plaintiff makes out a 
 jorimd facie case of malice, and of want of reasonable and probable 
 cause for the prosecution, the defendant must bring forward circum- 
 stances to show that he acted honA fide, and had reasonable ground 
 for believing that the facts within his knowledge constituted the 
 offence which he charged Qe). In order to show lona fides on the 
 part of the defendant, it is competent to him to prove any commu- 
 nication that may have been made to him prior to the commission 
 of the grievance, to show the impression made on his mind, and 
 the materials he had before him for forming an opinion. If the 
 plaintiff had previously been guilty of felony, and the defendant was 
 present at the trial, or had seen a record of the conviction which 
 induced him to act in the matter of the complaint, these facts are 
 receivable as evidence of tona fides {[). 
 
 It is no answer to an action for a malicious prosecution to show 
 that the indictment preferred against the plaintiff was not sustain- 
 able in point of law, " for a bad indictment serves all the purposes 
 of malice, by putting the party to expense and exposing him, but 
 no purpose of justice in bringing the party to punishment if he were 
 guilty " (m). When the plaintiff in his declaration avers that up 
 to the time of the prosecution by the defendant he had borne a 
 good character, and claims damages for injury to his character, it 
 may be shown, on cross-examination of the plaintiff's witnesses, 
 that he was at the time a man of notoriously- bad character {n). 
 But where the plaintiff doe's not, in his declaration, expressly claim 
 damages in respect of injury to reputation, general evidence as to 
 the plaintiff's character is inadmissible (o). Such general evidence 
 affords no proof of probable cause for a prosecution {p). 
 
 Of the damages recoverable in actions for a malicious prosecution. 
 In order to recover damages in an action for a malicious prose- 
 cution, the plaintiff must show that he has suffered either in 
 person, reputation, or pocket. If, therefore, an indictment is pre- 
 pared for a common assault, and is ignored by the grand jury, and 
 the party indicted brings his action for a malicious prosecution, he 
 
 (i) Paraon v. WOliams, 2 Q, B. 194. Pippetyr. Hem-n, 1 D. & E. 271. 
 
 Taylor r WiOans, 2 B. & Ad. 856. Broad (») Sodnguez v. Tadmvre, 2 Eap. 721 ; 
 
 T. //am, 8 So. 48. ^ ^ ^o««, ch 17, s. 3- „ ,, , ^ , 
 
 Ik) Weston V. Beeman, 27 Law J., Binh. (o) Downing v. Butcher, 2 M. & Rob. 
 
 57 Turner T. Ambler, 10 Q. B. 260. 374. Cornwall \. Richardson, Ey. & M. 
 
 miegalv.Higkley, 5 So. 169. 305. „ „„ , 
 
 il) Thomas v. JtusseU, 9 Exch. 764. ip) Newsam t. Carr, 2 Stark. 70. See 
 
 (m) Wicles T. Pentham, 4 T. E. 248. Thomas v. IlwsseU, supra. 
 
634 MALICIOUS PEOSECUTION. [CHAP. XHI. 
 
 must give some proof of actual damage {q), and must show that he 
 was forced to expend his money in necessary charges to acquit 
 himself of the misdemeanour of which he was accused;' for if igno- 
 ramus be returned where the indictment neither contains matter of 
 scandal nor cause for imprisonment, or loss of life or limb, no 
 action will lie ; but if there is scandal, or loss of liberty, &c., an 
 action will lie. "There are," observes Holt, C.J., "three sorts of 
 damages resulting from a malicious and unfounded indictment, any 
 of which would be sufficient to support an action. 1. The damage / 
 to a man's fame, as if the matter whereof he is accused be scan- 
 dalous. 2. Where a man is put in danger to lose his life, limb, or 
 liberty. 3. The damage to a man's property, as where he is forced 
 to expend his money in necessary charges to acquit himself of the 
 crime of which he is accused "' (r). 
 
 ■If two persons are indicted without reasonable and probable 
 cause for a conspiracy, and one employs an attorney to defend 
 them, and pays hini the costs of the defence, and both are acquitted, 
 and an action is brought for a malicious prosecution and a verdict 
 is given for the plaintiff, he is entitled to recover the amount of 
 the attorney's bill as part of the damages, unless each had a dis- 
 tinct defence and the costs thereof were severable (s). Every ex- 
 pense that the plaintiff has necessarily incurred in order to defend 
 himself from the false and malicious charge brought against him is 
 recoverable as part of the damages, if the plaintiff has claimed it 
 in his declaration (f). 
 
 In an action for a malicious prosecution, where the jury gave the 
 plaintiff 10,000^. damages, the court refused a new trial, saying they 
 would not interpose on account of the largeness of the damages, 
 unless they were so iSagrantly excessive as to afford internal evi- 
 dence of prejudice and partiality on the part of the jury; that 
 is, unless they were most outrageously disproportionate either to 
 the wrong received or to the situation and circumstances of either 
 the plaintiff or the defendant (it). 
 
 (g) Freeman v. Arhdl, 3 D. & E. 671. (s) Rowlands v. Samuel, 11 Q. B. 41. 
 
 Byne v. Moore, 5 Taunt. 191. {t) FoxaU v. Barnett, ante, p. 610. 
 
 (r) Samley. Boierts, 1 Ld. Eaym. 378. (u) leith v. Pope, 2 W. Bl. 1326. 
 
635 
 
 CHAPTEE XIV. 
 
 OP TRESPASSES IN EXECUTION OF VOID OE lEREGULAR PROCESS 
 
 —RESPONSIBILITY OF JUDGES AND MINISTERIAL OFFICERS 
 
 OF JUSTICE, AND PERSONS SETTING THEM IN MOTION. 
 
 Section I. — Of trespasses committed in the 
 execution of void or irregular legal pro- 
 cess. — Exemption of judges, arbitrators, 
 &e., from actions wliere they had a 
 primd fade jurisdiction — Conditions 
 precedent to the existence of jurisdic- 
 tion — Disqualification of judges, &c., 
 on account of interest — Orders of com- 
 mitment — Contempt of court — Pro- 
 ceedings against county court judges 
 to compel them to act — Proceedings of 
 courts-martial — Who are judges and 
 judicial officers — Wrongful delegation 
 of judicial functions — Revision of pro- 
 ceedings of inferior courts. 
 
 ■Secmon II. — Duties and responsibilities of 
 ministerial officers of courts of justice, 
 and persons setting them, in motion. — 
 Illegal assumption of the judicial office 
 — Neglect o:^ ministerial duties — 
 Duties of the sheriff and his officers in 
 the execution of civil process — Priority 
 of writs of execution — Trespasses by 
 sheriffs and their officers — Breaking 
 open dweUing-houses-^IUegality of an 
 arrest or seizure of goods effected 
 through the medium of an act of tres- 
 pass — When the sheriff becomes a 
 trespasser by remaining an unreason- 
 able time — Seizure of the goods of the 
 wrong party — Interpleader between 
 rival claimants — Claims by landlords 
 on sheriffs for arrears of rent — Sale by 
 
 sheriffs of goods taken in execution — 
 Wrongful arrests — Incurability of a 
 wrongful imprisonment — Counter- 
 mand of writs and warrants — ^Escape, 
 recapture, and discharge of prisoners 
 . — Arrest and seizure of goods under 
 void or irregular process — Misrepre- 
 sentation exonerating the sheriff — ■ 
 False returns to writs — ^Bxtortion by 
 sheriffs' officers — Duties and responsi- 
 bilities of high bailiffs, bailiffs, and 
 registrars of the county courts, gaolers, 
 and messengers of the court of bank- 
 ruptcy. 
 Section III. — Actions against judges, 
 sheriffs, bailiffs, and ministerial officers 
 and their assistants, and parties setting 
 them in motion. — Notice of action — 
 Staying proceedings in-actiona-against 
 sheriffs, their officers and assistants — 
 Statutory protection to high bailiffs 
 and persons acting in the execution of 
 county court warrants^^Staying pro- 
 ceedings in actions against high bailiffs, 
 &c, — Statutory protection in favour of 
 persons acting in execution of the 
 Bankrupt Acts — Parties to actions 
 against sheriffs and ministerial officers, 
 and parties acting under warrant of 
 the court of bankruptcy — Pleadings, 
 defences, and evidence— Damages re- 
 coverable — Exemplary damages — 
 Treble damages. 
 
 SECTION I. 
 
 OF TRESPASSES IN EXECUTION OF VOID OE lEEEGULAE PEOCESS — 
 EESPONSIBILITY OF JUDGES AND MINISTEEIAL OFFICERS OF COUETS 
 OF JUSTICE; AND PERSONS SETTING THEM IN MOTION. 
 
 Exemption of judges from actions in respect of things done in the 
 exercise of their judicial functions.— -When the executive power of 
 
636 TRESPASSES BY JUDGES, ARBITKATOES, ETC. [CHAP. XIV. 
 
 the sovereign has been delegated to others, to he by them put in 
 force in the form prescribed by law, the power thus conferred is 
 termed an authority in law, and affords a justification for all acts 
 and trespasses committed in the exercise of it, so long as the 
 authority has not been abused or exceeded. Neither the judges 
 in the king's courts nor any judicial officers are liable to answer 
 personally for their judicial acts. An action, therefore, will not lie 
 against a judge for a wrongful commitment or an erroneous judg- 
 ment, nor for any act done by him in his judicial capacity (a) ; nor 
 against a grand juryman for wrongfully presenting and finding a 
 bill of indictment ; nor against a petty juryman for a wrong 
 verdict ; nor against the vice-chancellor of the university for a 
 wrongful imprisonment (b) ; nor against a coroner, who is a judicial 
 officer, for any matter done by him in the exercise of his judicial 
 functions. If, therefore, a coroner thinks that an inquest ought to 
 be conducted in secresy, he has power to exclude all persons not 
 necessarily engaged in the inquiry; and if the exclusion of any 
 particular person appears to him to be necessa,ry or proper, it is for 
 him to decide who is to be excluded. And if a person has by order 
 of the coroner been forcibly turned out of a room when an 
 inquisition was about to be taken, the person so expelled has no 
 right of action against the coroner for an assault (c). 
 
 " Arbitrators whom parties by consent have chosen to be their 
 judges shaU never," observes Lord Holt, " be arraigned more than 
 any other judges," (d) for if it should be allowed to make arbitra- 
 tors defendants, and give them the trouble to defend their judgmeiits 
 and set forth the particular reasons upon which they founded their 
 award, it would introduce very great inconvenience, and be a dis- 
 couragement to any person to undertake a reference. If there is 
 any palpable mistake made by an arbitrator, or any miscalculation in 
 an account laid before him, the person aggrieved may bring his bill 
 of complaint against the party in whose favour the award is made 
 to have it rectified, but not against the arbitrator (e). Arbitrators, 
 therefore, are not responsible in damages for their mistakes or 
 omissions, or for negligence or carelessness in the discharge of the 
 duties intrusted to them ; but-if they abuse the office of judge, and 
 act fraudulently and corruptly, or maliciously, they are answerable 
 in damages to the parties grieved (/). Where, under a building 
 contract, an architect is clothed with the duties of an arbitrator in 
 the settlement of differences arising between the builder and 
 
 (a) Ilamond t. Hoiodl, 1 Mod. 184 ; 2 857. 
 
 Mod. 219. (e) Ld. Hardwioke, Anon. 3 Atk. 6i4. 
 
 (6) Kemp v. Neville, 10 C. B., N. S. (/) WilU v. Maccarmick, 2 VVils. 148. 
 
 523 i 31 Law J., C. P. 158. Toier v. ChUd, 7 Ell. & Bl. 383. See Rt 
 
 (c) Gameit v. Ferrand, 6 B. & C. 611. Hopper, L. E., 2 Q. B. 367. Pappa t. 
 
 \d) Morria v. ReynoUt, 2 Ld. Kaym. Rose, L. E., 7 C. P. 32. 
 
SECT, l.j COURTS OF INFERIOR JURISDICTION. 687 
 
 employer, and in determining charges to be made for extras, he 
 cannot be made responsible for mere errors of judgment in the 
 discharge of the duties devolved upon him, but he may be sued for 
 neglecting to exercise the functions he has undertaken to perform, 
 and any vmdue bias under which he labours will invalidate his 
 award (g). If arbitrators neglect to hear one of the parties, it will 
 invalidate their award, and will be good ground for setting it aside, 
 but it cannot be pleaded to an action on the award (h). The 
 general rule as regards judges and judicial officers is, that if they 
 do any act beyond the limit of their authority causing injury to 
 another, they thereby subject themselves to an action for damages ; 
 but if the act done be within the limit of their authority, through 
 an erroneous or mistaken judgment, they are not liable to an 
 action (i). A judge, therefore, is not answerable for slander spoken 
 by him in the exercise of his judicial functions in reference to a 
 matter before him, although it be spoken maliciously and without 
 reasonable cause, and be irrelevant and not bond fide in the discharge 
 of his duty as judge (j) ; but if he goes out of his way to make 
 slanderous attacks upon the character of private persons in respect 
 of matters not before him, and into which he has no jurisdiction to 
 inquire, he will be responsible like any other individual for the 
 consequences (k). ^ 
 
 Where parties are not acting as judges, but have only a discretion 
 confided to them, an erroneous exercise of that discretion, however 
 plain the miscarriage may be,' will not render them answerable in 
 damages, provided they have due legal authority and power to act 
 in the matter. And where the law neither confers judicial power, 
 nor any discretion, at all, but requires certain things to be done, 
 everybody on whom the duty of obedience attaches is bound to do 
 the act required, and is responsible in damages for the consequences 
 of his disobedience or neglect (I). 
 
 This freedom from action and suit is given to judges, not so 
 much for their own sake as for the sake of the public and for the 
 advancement of justice, "that, being free from actions, they may be 
 free in thought- and independent in judgment, as all who are to 
 administer justice," observes Lord Tenterden, " ought to be." 
 
 Conditions precedent to the existence of Jurisdiction on the part of 
 a Judge. — Every judge of a court of inferior jurisdiction must have 
 before him some cause of action, charge, or complaint, into which 
 
 (g) Kemp T. Sose, 1 Giff. 258. See (i) Lewis v. Levy, 27 Law J., Q. B. 
 
 Kmiberley v. Dick, L. B., 13 Eq. Ca. 1. 289. M'Oregor v. Thwaites, 3 B. & C. 
 
 (h) Thorhurn t. Barnes, L. K., 2 C. P. 24 ; post, ch. 17, s. 1. 
 
 384. (0 Ferguson v. Kinnoul (Earl of), 9 
 
 (i) Doswell T. Lmpey, 1 B. & 0. 169. 01. & Fin. 290 ; and see Pedley y. Dam's, 
 
 Gahiny.Laffitte, 5 Moore, -P.F.G. 382. post, ch. 15, n. 1. 
 
 U) Scott T. Stansfield, h. K., 3 Ex. 220. 
 
038 TBESPASSES BY -JUDGES. [OHAP. XfV. 
 
 he has by law authority to inquire, or his proceedings will be extra- 
 judicial, and he wiU be responsible for the injurious consequences 
 that result from them to others. The particulars of a plaintiff's 
 claim, for example, in the county court, served on the defendant 
 with the county court summons, must disclose some matter of 
 complaint within the jurisdiction of the court ; and if they disclose 
 a cause of action over which the court has no jurisdiction, the judge 
 cannot alter the particulars by inserting therein a new cause, of 
 action, and proceeding to hear it, for the defendant has never been 
 summoned to answer such new cause of action, and the judge has 
 consequently no power to take cognizance of it, if the defendant 
 objects to his so doing (m). 
 
 Disqualification of judges on account of interest. — In accordance 
 with the maxim, " nemo debet esse judex in propria su^ causS,," it 
 has been held, that whenever it appears that the judge is a party to 
 the suit, the judgment is erroneous (n). If, therefore, he has any 
 private or pecuniary interest in the subject-matter of the suit, he 
 cannot adjudicate upcto it (o). Such interest, however, must be 
 direct and certain, and not merely remote or contingent. Where, 
 therefore, at the time of taking an inquisition before the sheriff in 
 a railway compensation case there was in existence an agreement 
 not yet carried out between the company, which was taking the 
 land, and another railway company, for their amalgamation, and the 
 sheriff was a shareholder in the last-mentioned company, it was 
 held that the proceedings were valid {p). 
 
 Exemption of judges from actions where they have a primd facie 
 jurisdiction, and no objection is taken to their jurisdiction. — A judge 
 of a court of record in England with limited jurisdiction is not 
 responsible in damages for the consequences of his acts and 
 proceedings in respect of matters over which he had no jurisdiction, 
 if he had a prirad facie jurisdiction in the matter, and had not the 
 knowledge or means of knowledge, of which he ought to have 
 availed himself, of his want of jurisdiction. Thus it has been held, 
 that if one be arrested by a process out of an inferior court for a 
 cause of action which did not arise within its jurisdiction, the party 
 arrested may well maintain an action against the plaintiff who 
 levied the plaint, and should be intended to know where the cause 
 of action arose ; but not against the judge or officer who had 
 
 (m) Hopper, In re, 32 Law J., Q. B. (p) Reg. v. Manchester wnd Sheffield 
 
 104. Hail., L. E., 2 Q. B. 336. The case was 
 
 (») London {City of) v. Wood, 12 Mod. decided under s. 39 of the Lands Clauses 
 
 688. Act, but it was considered that the words 
 
 (o) Dimes v. Grand Junction CamaZ "interested in the matter in dispute," 
 
 Co., 3 H. L. C. 759. Beg. v. Aberdeen used in that section were merely declara- 
 
 Canal Co., 14 Q. B. 866. Kemp v. Rose, tory of the common law. See Eeff. t. 
 
 supra. See post, "Inierested Justices." , Rand, post, ch. 16, g. 1. 
 
SECT. 1.] COMMITMENTS BY COUNTY COURT JUDGES. 639 
 
 entered the plaint, or the officer who had executed it, for when it 
 was impossible for them to know that the cause of action did not 
 arise within their jurisdiction, it; would not be agreeable to any 
 rules of justice to make them liable to an action ; but the proper 
 and just remedy was against the plaintiff (g). It has accordingly 
 been held, that the judge of a court of record in a borough is not 
 responsible as a trespasser for the imprisonment of a defendant 
 where he had no means of knowing except through the plaintiff or 
 defendant, and did not know, that the cause of action arose without 
 the limits of the borough (r). 
 
 Where the facts of the case before a county court judge, 
 although subsequently found to be false, were such as, if true, 
 would have given the judge jurisdiction, the judge was held not to 
 be responsible for his judgment and order in the matter; but 
 where the facts showed that he had no jurisdiction, and the judge 
 mistook the law as applied to those facts, and wrongfully ordered 
 a party to be committed, it was held that he was responsible in 
 damages for the imprisonment (s). 
 
 If an action is brought in a court of limited jurisdiction, and 
 the defendant pleads to the jurisdiction, the court must decide 
 whether they have jurisdiction or not; and if they decide that 
 they have jurisdiction in a case where they clearly have no 
 pretence for it, and give judgment against the defendant, aU the 
 members of the couit present, and taking part in the judgment, 
 may render themselves liable to an action {t)i 
 
 A county court judge is not ousted of his jtirisdiction by a 
 notice of a bond fide claim of title in those cases to which his 
 jurisdiction to try cases of title does not extend (u). It is his 
 duty to inquire into the claim, and determine whether there really 
 is a question of title involved in the issue before him. If, in a 
 controversy between landlord and tenant, it appears that the tenant 
 has been actually turned out of possession by a third party, 
 claiming by title paramount, a question of title arises ; but this is 
 not the case if it appears that the tenant voluntarily gave up 
 possession to such third party (x). 
 
 Orders (tf commitnwnt ly county court judges. — If a county court 
 judge makes an illegal order of commitment in respect of a matter 
 over which he has jurisdiction, he is not himself responsible for 
 his erroneous judgment (y). But if he had no jurisdiction in the ' 
 matter, and the order or warrant of commitment is put in force, he 
 
 (<7^ OUiet T, Bmey, 2 W. Jones, 214. (u) i.e., where the rent or the vahie of 
 
 ll{ Gwvnn v Poole, Lutw. App. 1566. the land, &a, m dispute exceeds 201. ; 30 
 
 l^rTnalkett, 3 Moore, P.'fi. C. 77. & 31 Vict. c. 142 bb. 11, 12 
 "aafe v Dewnes, ib. 36, n. {«^) ^'^ery y. Barnett, i C. B., N. S. 
 
 7iffonl^:^:SmUk: U Q. B. 852. 431 ; 27 Law J., C P. 216. 
 
 (i) Wingate v. Waite, 6 M, & W. 746. {y) Samokd v. SoweU, 1 Mod. 1S4. 
 
640 TRESPASSES BY JUDGES. [CHAP. XIV. 
 
 is liable to an action for false imprisonment, if the facts depriving 
 him of his jurisdiction were brought to his knowledge. 
 
 Commitments for contempt (z). — A court of record has power 
 to punish, by commitment for contempt, a libel upon the court, 
 published when the court is not sitting as well as when it is sitting, 
 and the question whether the particular publication be libellous or 
 contemptuous is a question for the court which commits. Any 
 publication tending to influence the result of a pending suit, or to 
 prejudice the minds of the public with regard to it, is a contempt 
 of court (a), e. g., the publication of a petition for winding up a 
 public company before the hearing (6). 
 
 When the committal is by way of punishment, it ought to be 
 certain as a sentence, and the term of imprisonment should be 
 specified (c). The court cannot for contempt suspend a barrister 
 from practising, if the contempt be not in his character as 
 barrister, but as suitor, for the proper punishment for contempt of 
 court is fine and imprisonment (d). The court cannot delegate to 
 a single judge the power of issuing a warrant for the apprehension , 
 and committal of the person in contempt (e). A superior court 
 may adjudge a man to be guilty of a contempt, and may imprison 
 him for a certain time for such contempt, without setting forth on 
 the face of the .warrant the grounds upon which its adjudication 
 proceeded (/). The County Courts Act, 9 & 10 Vict. c. 95, s. 113, 
 gives the judge power to commit for any insults wilfully offered to 
 him or his officers, or for any wilful interruption of the proceedings 
 of the court, or any other misbehaviour in court; and it has been 
 held that the judge has jurisdiction to decide conclusively whether 
 any particular act did amount to an insult, or interruption, or 
 misbehaviour, and that it is unnecessary for a judge to say more 
 in the warrant of commitment than that he had been wilfully 
 insulted (g). 
 
 Statutory forms of commitment hy county court judges. — The 19 
 & 20 Vict. c. 108, s. 59, enacts that every warrant of commitment 
 issuing from a county court shall, on whatever day it may issue, 
 bear date on the day on which the order for commitment was 
 made, and shall continue in force for one year from such date, and 
 no longer; but no order for commitment shall be drawn up or 
 
 iz) See post, ch. 15, s. 1. As to com- Waggon Co., 38 Law J., Ch. 330 ; L. R. 
 
 mitments by legialatiye assemblies, see 8 Bq. Ca. 580. 
 
 DoyU V. Falconer, h. E., 1 P. C. Oa. 328. (c) Cramford's case, 13 Q. B. 629. Sex 
 
 The Speaker of the Legislative Assembly of v. James, 5 B. & Aid. 894. 
 Victoria y. Glass, L. E., 3 P. C. Ca. 560. (d) He Wallace, L. E., 1 P. C. Ca. 283. 
 
 Attorney -Qeneral of New South Wales See Re Bamsay, L. E., 3 P. 0. Ca. 427. 
 V. Macpherson, L. E., 3 P. C. Ca. (e) Van Samdau v. Turner, 6 Q. B. 785. 
 
 268. (/) Fernandez, Ex pwrte, 10 C. B., N. S. 
 
 (o) Daw V. EUy, L. E., 7 Eq. Ca. 49. 25 ; 30 Law J., C. P. 321. 
 
 (6) Re Cheltenham, ttc, Ca/rriage and (<?) Levy y. jjfoi/Uin, 10 C. B. 211. 
 
SECT. 1.] DELEGATION OF JUDICIAL FUNCTIONS. 641 
 
 served ; and that any warrant of commitment in respect of an 
 unsatisfied judgment or order of a county court may be in the 
 form, or to the effect, given in the schedule of the Act, and that all 
 such warrants shall be deemed sufficient to justify proceedings 
 under them, without any further statement of facts to show 
 jurisdiction. The power of the county court judge to imprison 
 judgment debtors has been considerably curtailed by the statute 32 
 & 33 Vict. c. 62. They are now, however, the judges in bankrupt- 
 cies elsewhere than in London (A). 
 
 WTio are judges and judicial officers. — The steward of a court- 
 baron is a judicial oflicer, and cannot, therefore, be made responsible 
 for the mistakes and irregularities of the bailiffs and ministerial 
 officers of the court (i). So also was the sheriff when presiding in 
 the county court- as anciently constituted (_;'). The vice-chancellors 
 of the Universities of Oxford and Cambridge are also judges of a 
 court of record, and so are all persons who have power to fine and 
 imprison Qc). Wherever power is given to examine, hear, and 
 punish, it is a judicial power, and they in whom it is reposed act 
 as judges, and persons who are made judges shall not be liable 
 to have their judgments examined in actions brought against 
 them (T). 
 
 Delegation of judicial functions. — Judicial functions cannot be 
 delegated, and if it has been the practice of a particular court to 
 delegate to its clerk the performance of judicial acts, the practice is 
 illegal, and the clerk who thus takes upon himself the of&ce of 
 judge is responsible for the orders he gives. If he takes upon 
 himself to issue a warrant, without the order or direction of the 
 judge, he is liable for the trespasses occasioned by its execution. 
 Where commissioners of a court for the recovery of small debts 
 were empowered by statute to order payment of judgment debts 
 by instalments, and, in case of default in payment of the instal- 
 ments, the commissioners present in court, at the instance of the 
 plaintiff, and u^on due proof of the default, were empowered to 
 award execution against the judgment debtor, with such costs as to 
 them should seem just, and it was shown to be the practice of the 
 court for the commissioners, at the time they gave judgment for 
 the plaintiff, to direct the debt to be paid by monthly instalments 
 or execution to issue, it was held that the commissioners had no 
 power to make such a practice or such an order at the time of the 
 
 (K) See 32 & 33 Vict. c. 71, ss. 77, 86. (i) Twtmo t. Morris, 2 C. M. & E. 
 
 As to commitments by Commissioners of 298. „ .„ „^ -r ,. „ „ 
 
 Bankrupts under the old law, and their {k) Kemp v. NmUe, 31 Law J., 0. P. 
 
 liabiEty for such, see DosmU v. /mjpejr, 1 158. „ , t j t. 
 
 B. & C. 169. (^) GroenveU v, Burweu, 1 Ld. Baym. 
 
 (i) Holroyd r. Breare, 2 B. & Aid. 467, 
 473. 
 
 T T 
 
642 TEESPASSES BY JUDGES, [CHAP. XIV. 
 
 judgment, 'because, if made then prospectively, it dispensed with 
 that proof of non-payment which the statute required, and with 
 the exercise of any discretion on their part as to the execution or 
 further costs ; that the direction, therefore, for issuing execution, 
 engrafted on the original judgment, and made part of it, was not 
 merely irregular, but a nullity; that the clerk had issued the 
 warrant without authority, and was consequently liable for the 
 imprisonment occasioned by its execution (m). 
 
 Bemoval of the proceedings of inferior courts for revision ly a 
 swperior tribunal. — The remedy by certiorari is available in all 
 cases to remove the judgments, orders, and proceedings of courts 
 of inferior jurisdiction, for the purpose of being examined by the 
 Court of Queen's Bench, and quashed on the ground of want of 
 jurisdiction or excess of jurisdiction, although the writ of certiorari 
 is expressly taken away by statute. If it distinctly appears from 
 the proceedings of the inferior court that the court has taken upon 
 itself to decide on a matter over which it had no jurisdiction, the 
 statutory prohibition of a certiorari does not apply, and the 
 inherent jurisdiction of the Court of Queen's Bench is not 
 restrained (n). And if there is nothing on the record to show that 
 there was any excess of jurisdiction, the fact may, nevertheless, be 
 established by affidavits (o). A bill of certiorari may also be iiled 
 in a court of equity, to remove a cause from an inferior court to 
 the Court of Chancery, where it appears that the inferior court is 
 acting without jurisdiction {p). 
 
 'The writ of certiorari is, also, not taken away by statutory 
 prohibition, when it is moved for on behalf of the crown. Thus 
 the words in the County Courts Act, 9 & 10 Vict. c. 95, s. 90, 
 enacting " that no plaint entered in any court holden under that 
 Act shall be removed or removable from the said court into any of 
 Her Majesty's superior courts of record by any writ or process, 
 unless the debt or damage claimed shall exceed 5Z.," does not 
 take away the prerogative right of the crown to remove into 
 the Court of Exchequer causes affecting the crown revenue. 
 Therefore, where an officer of the crown distrained some of the 
 sheep of the plaintiff, damage feasant in a royal forest, and 
 the plaintiff sought to recover in the county court 11. damages 
 from the officer for an illegal distress, the cause was removed 
 into the superior court, notwithstanding the statutory prohibi- 
 tion (g'). 
 
 (m) 4ndrewi V. MarHs, 1 Q. B. 3. law J., Q. B. 225. Seg. v. Manch., Sc., 
 
 Whitelegg v. Richards, 2 B. & C. 45. SqQ. Go., 8 Ad. & E. 417. 
 
 (n) Reg. T. Sovth Wales Bail. Co., 13 (p)- Tracy v. Open Stock Exchange, 
 
 Q. B. 993. L. R, 11 Eq- Ca. 556. 
 
 (e) Re Penny, 7 BU, Sf. Bl. 660; ^6 (^) Hountjoy v. Wood, 1 H, & N. 58, 
 
SECT. 2.] COUKTS-MAETIAL. 643 
 
 The validity of a commitment by a judge of an inferior court 
 may be tested by habeas corpus (r). 
 
 Proceedings against county court judges to compel them to act in 
 particular cases.— The 19 & 20 Vict. c. 108, s. 43, enacts that no 
 writ of mandamus shall henceforth issue to a judge or an ofacer of 
 the county court for refusing to do any act relating to the duties of 
 his office ; but any party requiring such act to be done may apply 
 to any superior court or judge thereof, upon an affidavit of the 
 facts, for a rule or summons calling upon such judge or officer, and 
 also the party to be affected by the act, to show cause why such 
 act should not be done ; and if, after the service of such rule or 
 summons, good cause shall not be shown, the superior court or 
 judge thereof may, by rule or order, direct the act to be done, and 
 the judge or officer of the county court, upon being served with 
 such rule or order, shall obey the same, on pain of attachment ; and 
 in any event the superior court, or the judge thereof, may make 
 such order with respect to costs {i. e., the costs of the application 
 for the rule, not the costs in the county court (s) ) as to such court 
 or judge shall seem fit (t). 
 
 Proceedings of courts-martial. — Where the civil rights of a person 
 in the nailitary service are affected by the judgment or sentence of 
 a military tribunal, if that military tribunal is exceeding its juris- 
 diction, or is acting without jurisdiction, the Court of Queen's 
 Bench will interfere to protect the civil rights of the individual ; 
 but where the military status of the applicant only is concerned, 
 the court has no jurisdiction in the matter, as that status is a matter 
 depending entirely upon the will and pleasure of the crown (u). 
 
 SECTION" II. 
 
 OF THE DUTIES AND KESPONSIBILITIES OF MINISTEEIAL OFFICERS OF 
 COUKTS OF JUSTICE. 
 
 Illegal asmmption of the judiciid office hy ministerial oncers. — 
 As judicial functions cannot be delegated (ante, p. 641), it follows 
 that if the mere ministerial officer of the court t^kes upon himself 
 the responsibility of issuing orders purporting on the face of them 
 to be the orders of the court, but which are issued without its 
 
 (r) Soyce, In re, 22 Law J., Q. B. 393. (t) Fidher, Ex pm-te, 27 Law J., JEioh. 
 
 (s) Chwrchward v. Coleman, L. B., 2 8. 
 
 Q. B. 18. ■ But see Whiiekai v, frotter, («) Mansergh, In re, 30 Law J., Q. B. 
 
 SH, &F. 53g, ?96, See (i»j!e, p. 621. 
 
 T T ^ 
 
644 RESPONSIBILITIES OF SHEUIFFS. [CHAP. XIV. 
 
 autkotity, and which are consequently in form only and not in fact 
 the orders of the court, the officer so misconducting himseK is 
 responsible for all trespasses that may he committed in carrying 
 into effect the orders so issued. But if the order has heen made in 
 a cause in court over which the judge has a general jurisdiction, the 
 mere ministerial of&cer who receives the warrant or order from the 
 clerk to execute, and has no knowledge that it was issued without 
 the authority i3f the court, is not responsible for things done under 
 it (x), and the clerk of the court, so long as he confines himself to 
 the mere ministerial duties of his of&ce, and does not take upon 
 himself the exercise of the office of judge, is not responsible for 
 things done under the orders that are signed and issued by him in 
 the discharge of the duties of his office, unless there is a total 
 absence of jurisdiction on the part of the judge (y). 
 
 Neglect of duty by ministerial officers of cowrts of justice. — Every 
 ministerial officer of a court of justice is liable to an action for 
 neglecting the duties of his office. , Thus, an action lies against the 
 chief clerk of a court for not entering a judgment on the roU when 
 it is his duty so to do (2). An action also lies against the clerk of 
 the court at the suit of a judgment creditor for unlawfully, without 
 the sanction or authority of the court, taking upon himself to issue 
 an order, purporting to be the order of the court, for the discharge 
 of the judgment debtor, whereby the plaintiff lost the fruits of his 
 judgment. It is no part of the duty of the clerk of the county 
 court to prepare notices of judgments or orders of court for the 
 payment of money, and no action, therefore, lies against him for 
 omitting to prepare such a notice, or for negligently preparing it, 
 whereby a party was misled as to the times of payment of certain 
 instalments ordered by the judge to be paid, and had his goods 
 taken in execution (a). 
 
 Duties and responsibilities of the sheriff and his officers — Execu- 
 tion of writs. — It is the duty of the sheriff, as soon as a writ of 
 execution has been lodged in his hands, to make careful and 
 diligent inquiry concerning the execution debtor or his property, 
 and to execute the writ without any unnecessary delay. If he 
 refuses to execute a writ when he has the opportunity, and is 
 required to do it, and nothing occurs to prevent him, he will be 
 responsible in damages to the execution creditor for his negli- 
 gence (6). On receiving a writ oifl.fa. he must endeavour to ascer- 
 tain what goods the execution debtor possesses within his bailiwick 
 and seize them (e), and sell them to the best advantage {d). If he sells 
 
 (y) 
 
 (x\ Andrews v. Mwrris, 1 Q. B. 3. (6) Mason t. Paynter, 1 Q. B. 981. 
 
 (y) Dews v. Mey, 11 C. B. 434. Brown v. Jwreis, 1 M. & W. 704. 
 
 (z) Douglas v. Tallop, 2 Burr. 722. (c) See post, p. 652. 
 
 (a) RaUnson v. Gell, \% C. B, 191. (d) PitcUr v. King, 5 Q. B. 767. 
 
SECT. 2.] EXECUTION OF WRITS. 645 
 
 goods for much less than they ought to have been sold for, or does 
 not take due and proper care in selling to the ^best advantage, or if 
 he seizes or sells goods of much greater value than would suf&ce to 
 satisfy the execution, poundage, and expenses, he wiU be responsible 
 in damages to the party damnified (e). There is no duty or obliga- 
 tion on the part of the judgment creditor to give the sheriff any 
 information or assistance, to enable him to execute the writ (/). 
 
 The law has always held the sheriff strictly, and with much 
 jealousy, to the performance of his duty in the execution of writs, 
 both from the danger there is of fraud and collusion with de- 
 fendants, and also because it is a disgrace to the crown and the 
 administration of justice if the king's writ remain unexecuted, as 
 appears by the statute of Westminster the 2nd, c. 39 (g). The law 
 is tender also of the liberties and interests of the subject, and 
 requires the presence of the responsible ofl&cer to control the execu- 
 tion of the writ. If therefore, an arrest is made under a ca. sa. by 
 a bailiff to whom the warrant is not addressed, in the absence of 
 the of&cer to whom it is addressed, the arrest is irregular, and the 
 defendant will be entitled to be discharged out of custody, and may 
 maintain an action for wrongful imprisonment against the bailiff 
 and the sheriff, unless the court has imposed upon him terms 
 prohibiting him from bringing an action (h). Where a gentleman, 
 who had obtained a warrant directed to a sheriff's oflicer to arrest 
 his debtor, struck out the of&cer's name and inserted his own in its 
 stead, and the gentleman was shot by the debtor whilst he was 
 endeavouring to arrest him, it was held to be no murder, as the 
 arrest was illegal, not having been effected by the officer named in 
 the warrant (i). 
 
 Priority of writs of execution. — The sheriff, as between himself 
 and different execution creditors, is bound to execute that writ 
 which is first delivered to him to be executed, and is responsible to 
 the first creditor who so delivered his writ if he does not, unless the 
 execution of the writ is countermanded ; in which case the writ, 
 whilst the countermand continues, must be considered as not 
 delivered at all to be executed, because the sheriff cannot act upon 
 it. If, after the sheriff has been desired to suspend the execution 
 of a writ, he receives an order to execute it, this order will not 
 relate back, so as to give the execution of the writ any priority 
 over writs which have been placed in the hands of the sheriff 
 during the period of the suspended execution. The countermand 
 
 (e) OwwUr V. ChapUn, 2 Exch. 506. 265. Gregory v. Cotterdl, 5 Ell. & Bl. 
 
 Mullet r. Challis, 16 Q. B. 239. 671. „ ^ „ . 
 
 (/) Dyhe v. Duhe, 4 B. N. 0. 203. W Kenyon, 0. J., Housm v. Barrow, 6 
 
 {g) Howden v. Standhh, 6 C. B. 520. T. K. 123. 
 {h) Rhodes t. HvM, 26 Law J., Bxch. 
 
646 EESPONSIBILITIES OP SHERIFFS. [CHAP. XIV. 
 
 of the execution of the writ is equivalent to its withdrawal, and it 
 is not until the sheriff receives notice of withdrawal of the counter- 
 mand, and an order to proceed, that the writ is considered to have 
 heen again delivered to him to be executed (A). 
 
 Where goods have been seized under a former writ, founded on 
 a judgment fraudulent against a creditor seeking to enforce a 
 subsequent execution, and such goods remain in the hands of the 
 sheriff, or are capable of being seized, the sheriff is bound to seize 
 and sell the goods under the subsequent execution (J). 
 
 Trespasses hy the sheriff and his oncers. — The high-sheriff may 
 be responsible for the acts of the under-sheriif in the execution of 
 the duties of his office, as he is the general of&cer of the sheriff; 
 but the bailiff is not the general ofi&cer of the sheriff. The bailiff 
 gives a bond to the sheriff to execute such warrants as shall be 
 directed to him, and when a warrant is granted him he becomes the 
 special officer of the sheriff for the execution of the particular 
 warrant, and the sheriff is responsible for what he does in the 
 execution thereof, but he is not responsible when the act done by 
 the officer is not done in the execution of a warrant (m). The 
 liability of the sheriff, in case of mistake or misconduct on the part 
 of his officer, is confined to cases where there is a misdoing of 
 something which the sheriff commands him to do. If the sheriff is 
 sued for a misfeasance of the officer, it is no answer for him to say 
 that his command was not obeyed : he is still liable, provided the 
 thing done be something which, by the command, or under the 
 authority of the sheriff, the officer was bound to do (n). If a 
 sheriff acting under a Ji. fa. issues his warrant to his officer, direct- 
 ing him. to levy a certain sum on the goods and chattels of the 
 debtor in the usual form, and the officer arrests the debtor instead 
 of levying on the goods, the sheriBf will be responsible in damages 
 for the mistake, although the sheriff never directed or authorized 
 him to make the arrest (o), the case of a sheriff differing in this 
 respect frora the liability of an ordinary principal for the acts of an 
 agent who does not pursue the authority committed to him. 
 
 But if the officer derives his authority for what he does from 
 some third party, and not from the sheriff (p), or if he is not acting 
 in the execution of any process directed to him by the sheriff to be 
 executed, the sheriff is no party to his acts, and is not responsible 
 for what he does. Thus, if an execution debtor arrested under a 
 ca. sa. pays the debt and costs to the sheriff's officer to obtain his 
 
 (i) Hvmt T. Booper, 12 M. & W. 672. (o) Smart t. ffutton, 8 Ad. & E. 568, n. 
 
 (t) Im/ray v. Magnay, 11 M. & W. 275. RapTiad v. Goodmwn, ib. 565. Gregory v. 
 
 (m) Littledale, J., Crowder t. Long, 8 Cotterell, 5 Ell. & Bl. 586 : 25 Law J., 
 
 B. & C. 605. Drahe r. Syhes, 7 T. K. Q. B. 38. 
 
 llf, „ . , „ (P) Cook T. Pahner, 6 B. & C. 742. 
 
 (») Smth V PriteJiard, 8 C. B. 588. 
 
SECT. 2.] EXECUTIONS IN DWELLING HOUSES. 647 
 
 discharge, and the sheriff's officer _fails to pay over the. money to 
 the execution creditor, in consequence whereof the debtor is a 
 second time arrested under a fresh writ upon the same judgment, 
 the sheriff is not liable to the debtor for the default of his ofBcer in 
 not paying over the money, as it is no part of the duty of the 
 sheriff or his officer to receive the money. Such a transaction is 
 in the nature of a private arrangement between the debtor and the 
 officer, and the debtor must resort to the officer, who is responsible 
 to him for the non-payment of the money, like any other person 
 who has received a sum of money to be paid to another, and has 
 made default in so doing {q). 
 
 Execution of writs ly special lailiffs. — If the sheriff, at the 
 request of the person suing out the writ, or his attorney, appoints 
 a special bailiff for the execution of it, the sheriff is not then liable 
 for the acts of the officer so appointed (r). When, however, the 
 execution of the writ is not expressly taken out of the hands of the 
 sheriff, if there is a mere request that a particular officer may be 
 employed in the execution of it, this does not constitute that 
 officer a special bailiff of the person making the request (s). So if 
 the debtor interfere with the officer, although he will thus relieve 
 the sheriff from responsibility as to those matters in which he has 
 interfered, the sheriff will not therefore be relieved from responsi- 
 bility as to matters in which the debtor has not interfered (f). 
 
 Trespasses in dwelling-houses by sheriffs and their officers under 
 colour of the execution of legal process. — If a sheriff by lifting the 
 latch of the outer door of a dwelliug-house, or opening the outer 
 door in the way in which it is ordinarily opened by persons going 
 into the house, enters the house of the execution debtor himself for 
 the purpose of arresting him, or taking his goods, he is justified, if he 
 has reasonable ground to believe that he is there, or that his goods 
 are there ; but if he enters the house of a stranger to make the 
 arrest or the seizure, he is justified only in the event of his finding 
 the execution debtor or his goods in the house '(m). If it turn out 
 that the latter is not in the house, or had no property there, the 
 sheriff is a trespasser (x), unless the house was entered in hot pur- 
 suit after an escape (post, p. 649). The house in which the execu- 
 tion debtor resides, i.e., where he sleeps, maybe considered to be 
 his own house, although he is not the proprietor thereof, but only 
 a lodger or visitor. " I see no difference," observes Lord Lough- 
 borough, "between a house of which the execution debtor is solely 
 
 (j) Woods Y. Fvrmis, 7 Bxch. 372. («) Wright v. Child, L. E., 1 Exch. 
 
 (r) Fordr.Leche,6AA..k-S,.106. Doe 358. ,„,,,,„. 
 
 V. Trye, 7 Sc. 704 ; 5 B. K C. 673. («) Momsh 7. Murray, 13 M. & W. 
 
 (s) Alderson v. Davenport, 13 M. & W. 57. 
 42. Corbet t. Brown, 6 DowL 794. (x) Satcliffe t. £wion, 3 B. & P. 229. 
 
 Johnson r, Leigh, 6 Taunt. 245. 
 
648 TEESPASSES BY SHERIFFS. [CHAP. XIV 
 
 possessed, andv a liouse in which he resides by the consent of 
 another" (n/). 
 
 Of the hredkmg open the outer door of a dwelling-house in the- execu- 
 tion of legal process. — In Semayne's case (z) it was resolved — " 1. That 
 the house of every man is to him as his castle and fortress, as well 
 for his defence against injury and violence as for his repose. 
 
 " 2. That when any house is recovered by any real action, or by 
 ejectment, the sheriff may break the house, and deliver the seizin 
 or possession to the demandant or plaintiff, for the words of the 
 writ are 'habere facias seisinam,' or 'possessionem;' and, after 
 judgment, it is not the house in right and judgment of law of the 
 tenant or defendant. 
 
 " 3. That in all cases when the king is party, the sheriff, if the 
 doors be not open, may break the party's house, either to arrest 
 him or to do other execution of the king's process, if otherwise he 
 cannot enter. But before he breaks it he ought to signify the 
 cause of his coming, and to make request to open the doors. 
 
 " 4. That in all cases when the door is open, the sheriff may enter 
 the house and do execution, at the suit of any subject, either of the 
 body or the goods ; but that it is not lawful for the sheriff, (after 
 request made to open the door and denial made), at the suit of a 
 common person, to break the defendant's house, if the door be not 
 opened, to execute any process at the suit of any subject. 
 
 " 5. That the house of any one is not a castle or privilege but for 
 himself, and shall not extend to protect any person who flies to his 
 house, or the goods of any other which are brought and conveyed 
 into his house to prevent a lawful execution,, and to escape the 
 ordinary process of law ; for the privilege of his house extends only 
 to him and his family, and to his own proper goods, or to those 
 which are lawfully and without fraud and covin there ; and there- 
 fore, in such cases, after denial on request made, the sheriff may 
 break the house " (a). 
 
 The principle that every man's house is his castle does not 
 extend to a barn or outhouse, not connected with a dwelling-house. 
 Therefore the sheriff may break open the door of a barn in order to 
 levy an execution (&). 
 
 If the officer, after he has peaceably obtained entrance through 
 the outer door, and before he can make an actual arrest, is forcibly 
 expelled from the house, and the outer door fastened against him, 
 he may then break open the outer door and make the arrest (c). 
 And when he has once lawfully got inside the house, he is justified 
 
 (jr) Sheers v. Sroohs, 2 H. Bl. 122. (b) Penton v. Browne, 1 Sid. 186. 
 
 (z) 5 Co. 91. (o) Aga Kurhoolie Mahomed, i Moore, 
 
 (a) Semayne's case, 1 Smith's L. 0., 6tli P. C. C. 239. 
 ed., p. 88. 
 
SECT. 2.] EXECUTIONS IN DWELLING HOUSES. 649 
 
 in breaking open the outer door to get out again, if the door is 
 locked, and there is no one within who will open the door (d). 
 
 If. the window of a house be open, or a pane of glass broken, and 
 the bailiff put his hand in and touch one for whom he has a 
 warrant, he is thereby his prisoner, and the bailiff may break open 
 the door of the house to come at him (e), or break through the 
 window (/). And if, after the oflBicer has effected an arrest, the 
 debtor breaks loose and escapes into a house, the sheriff, or his 
 officer, may break open the house to retake him, whether the house 
 be the debtor's own house or the house of a stranger, provided he 
 has given notice of the object of his coming, and has demanded 
 and been refused admission (g). 
 
 What amounts to a breaking of the outer door. — If the sheriff, or 
 his officer, opens the outer door of a house by lifting the latch, or 
 drawing back a sliding bar, in the ordinary way in which persons 
 going into the house open the door, this is not a breaking of the 
 door. " As to the passage," observes PoUock, C.B., " in Comyn's 
 Digest, " Execution,' that the sheriff may not open a latch, there is 
 no reference to any authority in support of it. The cases do not 
 support that proposition" (A). 
 
 Of the breaking open of inner doors in the execution of a writ. — 
 If the sheriff, or his officer, gains peaceable entrance at the outer 
 door of a dwelling house, he may break open an inner door of the 
 house, either to seize the person or the goods of the owner of the 
 house, or of a lodger therein (*), and having entered at the open 
 outer door of the house, he need not demand to have the inner doors 
 opened to him before he breaks them, in order to take goods under 
 afi. fa. (k). Any resistance to the bailiff after he has once entered 
 at the open outer door will be punishable, although the entry may 
 have been obtained by fraud and deceit (I). 
 
 Illegality of an arrest or seizure of goods effected through tlie 
 medium of an act of trespass. — If the original entry into a dwelling- 
 house by a sheriff or his officers was unlawful and an act of tres- 
 pass, their continuance in the house is unlawful, and they cannot 
 avail themselves of an entry or possession unlawfully gained to 
 execute a ca. sa. (m). If the sheriff, in making his entry, "has 
 been guilty either of a breach of a positive statute, or of an offence 
 against the common law, such violation of the law in making the 
 
 id) Pugh V. Griffith, 7 Ad. & E. 827. (A) Hyan y: Shikock, 7 Exoh. 77 ; 21 
 
 (c) Anon., 7 Mod. 8. Sandon v. Jervis, Law J., Eich. 58. 
 
 B. B. & E. 935 ; 28 Law J., Exch. 156 ; (J.) Lee v. QansM, 1 Cowp. 1 ; Lofft, 
 
 see ante, -p. 575. 3'^- „ ,. „. ■, . rr, 
 
 (/) Lhyd V. Sandilands, 8 Taunt. (A) Hutchison v. Swch, i Taunt. 618. 
 
 250 Zloyd T. Sandilands, 2 Moore, 210. 
 
 (a) Anon., Lofft, 390. (0 ,-««? -^^ Baclclwuse, Lofft, 61 
 
 ^'" {m) Hooper v. Lane, 6 H. L. C. 535. 
 
650 TRESPASSES BY SHERIFFS. [CHAP. XIV. 
 
 entry causes the possession thereby obtained to be illegal" (%). 
 And if advantage is taken of the unlawful entry to effect an arrest 
 of a judgment debtor, the court will order the prisoner to be dis- 
 charged (o). 
 
 To break and enter a man's house for the purpose of executing 
 a CO.. sa. "is really," observes Parke/ B., "not an abuse of the autho- 
 rity of the writ, but it is executing the authority where the sheriff 
 has none ; like going out of the jurisdiction to execute the writ. 
 The door being open is a condition precedent to executing the writ 
 in the dwelling-house " {p). As regards the seizure of goods, how- 
 ever, after an unlawful breaking into the house, a different doctrine 
 has prevailed, on the authority of the following case in the Year 
 Book, 18 Edw. 4, 4a : — " Catesby comes to the bar, and asks whether 
 a sheriff and his officers breaking into a dweUing-house to execute 
 3.fi.fa. do a wrong or not; the judges answer that the defendants 
 may bring trespass against them, notwithstanding the fi. fa., for 
 that will not excuse them for breaking the house, but ' del prisel 
 des biens tantum.' " " This case," observes Coleridge, J., " is cited 
 in Semayne's case (g-), as establishing that if the sheriff breaks 
 the dweUing-house by force of a Jl. fa., he is a trespasser by the 
 breaking, and yet the execution which he then doth is^ood. But 
 it may be doubted whether the judges meant anything more in the 
 Year Book than to state generally what a Ji. fa. authorized a sheriff 
 to. do ; but assuming that they did, still the dictum there, and that 
 in Semayne's case, are both purely extra-judicial " (r). 
 
 When the sheriff becomes a trespasser by remaining on premises 
 an unreasonable time. — The writ of _/?. fa. authorizes the sheriff, who 
 has entered upon premises for the purpose of making a levy under 
 it, to remain there for such time as is reasonably necessary for the 
 execution of the writ ; but if he remains more than a reasonable 
 time he abuses the legal authority conferred upon him by the 
 Queen's writ and becomes a trespasser, and in the position of a 
 man who has walked into another person's house without any 
 authority (amfe, p. 264). The reasonableness of the time is a ques- 
 tion for the jury (s). 
 
 Seizure of the goods of the wrong person. — A sheriff or his officer 
 seizing goods under a writ of execution is responsible in damages if 
 he takes the goods of the wrong person. "If he takes the goods of 
 a stranger, though the plaintiff assures him they are the defendant's 
 goods, he is a trespasser; for he is obliged at his peril to take notice 
 whose the goods are, and for that purpose may impanel a jury to 
 
 {n) Tindal, C. J., Newton y. Hairland, 1 {q) 5 Co. 92 a, 92 b. 
 
 M. & Gr. 668. (r) Hooper v. Lane, 12 H. L. C. 542. 
 
 (o) Hodgson-v. Townimg, 5 Dowl. 410. (a) Ash y.Dommay, 8 Exch. 243. Pla/y- 
 
 (ip) Kerley v. Deriby, 1 M. & W. 341. faw t. Musgrove, 14 M. & W. 239. 
 
SECT. 2.] SEIZUEE OF GOODS OE WEONG PERSON. 651 
 
 inquire in whom the property in the goods is vested (t), or compel 
 rival claimants to interplead and establish their title " (u). Where, 
 therefore, two persons, being father and son, both had the same 
 name of baptism and surname, and both resided in the same house, 
 and an action was brought againsfthe son, who suffered judgment 
 by default, and a writ -of execution was issued against him, under 
 which the sheriff, by mistake, took the goods of the father, it was 
 held that the sheriff was responsible for the consequences of his 
 mistake (so). 
 
 Thd sheriff has no -right to seize the goods of a stranger in the 
 possession of the execution debtor as the ostensible owner (y). If 
 a woman, having furniture of her own, cohabits with the execution 
 debtor, and assumes his name, and gives herself out as his wife, 
 and permits him to appear to be the owner of her furniture, this 
 does not give the sheriff any right to seize it imder an execution 
 agaiast him (s). And if the man and woman have actually gone 
 through the form of marriage, and are supposed to be man and 
 wife, and the goods have been seized and sold by the sheriff, as the 
 goods of the husband, without any notice or objection, and it 
 afterwards transpires that the marriage was void, and that the 
 goods belonged to the supposed wife before the celebration of the 
 void marriage, the sheriff will be responsible to her in damages for 
 the unlawful seizure (a). The acquiescence of the woman was held 
 to be of no moment, the execution being a proceeding in invitum, she 
 having no power to resist, and not having discovered the error. 
 
 But where the woman takes an active part in misleading the 
 sheriff, and asserts that she is the wife of the execution debtor, 
 knowing the assertion to be untrue, she is then herself the cause of 
 the injury of which she complains, and is estopped from disputing 
 the accuracy of her representation (h). And if the evidence shows 
 that she had given the property to the man with whom she 
 cohabited, and had made him the owner of it, the sheriff wiU then 
 have a right to seize it (c). 
 
 As one man's goods cannot be seized by the sheriff to pay 
 another man's debts, it follows that the goods of a testator in. the 
 hands of an executor cannot be seized under an execution against 
 the executor to satisfy a judgment debt due from the executor 
 himself in his own right (cf) ; but if a devastavit has been 
 
 (t) Bao. Abr. Bxecution, N. 5. So- (b) langford v. Foot, 2 M. & Sc. 349. 
 
 lerts V. Thomas, 6 T. E. 88. Scmnderson (c) Edmwrds v. Parebrother, 2 M. & P. 
 
 T. Baker, 3 Wils. 309. 293. As to the seizure of goods let to 
 
 (u) Post, s. 3. Intehpleadbb. liire to the execution debtor, 'see Tan- 
 
 (x) Jarmain v. Hooper, 6 M. & Gr. cred-^. AUgood,post,T^. &51. 
 
 847 ; 7 Sc. N. E. 679. (<^) P"^ ■''■ Newmam, 4 T. R. 621. 6as- 
 
 (y) Damon t. Wood, 3 Taunt. 260. Ml v. Marshall, 1 M. & Eob. 132. Pen- 
 
 (z) Edmards v. Bridges, 2 Stark. 396. wick v. Laycock, 2 Q. B. 110. 
 (a) GlasspooU T. Young, 9 B. & 0. 701. 
 
652 TflESPASSES BY SHERIFFS. [OHAP. XIV. 
 
 committed hy the executor, and the goods have been converted to 
 his own use, the executor cannot take advantage of his own wrong, 
 and justify his own misconduct, hy saying that the goods are not 
 his, hut his testator's (e). 
 
 An illegal seizure of goods Under void process does not prevent 
 the sheriff from afterwards executing a legal warrant. The' 
 subsequent valid seizure is in nowise vitiated by the previous 
 trespass, but a different rule prevails with respect to an illegal 
 arrest (/). 
 
 ft is not sufiBicient for a sheriff to enter -a house with a writ of 
 fi. fa. in his hands, and to demand the debt and costs, together 
 with the expenses of the levying. He must do some overt act to 
 execute the writ ( g). But he need not actually seize anything. It 
 is sufficient if he states to the persons left in charge of the 
 property that he seizes everything there, and that nothing must be 
 removed {h). And when he has thus taken possession of the 
 goods, his officer should continue in possession, in order to sustain 
 the seizure against others afterwards coming under legal authority 
 to seize the same goods (i). If he give up possession without a 
 lawful excuse, he will be liable to an action (J). 
 
 Seizure hy sheriffs and their officers of privileged' or protected 
 goods. — ^An action is not maintainable against a sheriff who has 
 seized privileged or protected goods, in obedience to the commands 
 of a writ, but the person injured must apply to the court for an 
 order upon the sheriff to restore the goods. Thus, if the sheriff 
 seizes the property of a person, who has obtained an order, from a 
 court of competent jurisdiction, of protection from process, the 
 remedy is by application to the court for an order upon the sheriff 
 to withdraw, and not by action (k). 
 
 'No writ of/, fa. can be executed in any of the palaces 
 belonging to the crown, which is either at that time the residence 
 of the sovereign, or in which there is an intention, and present 
 power, on the part of the crown, to resume such residence ; but if, 
 although in one sense a royal palace, it has, for many years, been 
 put to uses practically inconsistent with the personal residence of 
 the sovereign, the exemption wiU cease (I). 
 
 The Mercantile Law Amendment Act, 19 & 20 Vict. c. 97, 
 s. 1, provides that the delivery of a writ of fi. fa. is not to affect 
 
 (e) Quick T. Staines, 1 B. & P. 295. withdrawal of the sheriflF under an inter- 
 
 (/) Perdval v. Stamp, 9 Exch. 171. pleader order, see Darby v. Waterhw, 
 
 Hooper v. Lane, 6, H. L, 0. 443. infra. 
 
 (g) Nash v. Dickenson, L. R., 2 C. P. {j) Dwrby v. Waterlow, L. E., 3 0. P. 
 
 252. 453. 
 
 (k) Gladstoney.Padmick, L. E., 6 Exch. {k) Rideal t. Fort, 11 Exch. 847. 
 
 203. (V) Att.-Oen. t. Dalan, L. 11., 2 Exch. 
 
 (i) Blades v. Arrnidd, 1 M. & S. 711. 290 ; 3 ib. 288 ; 4 Engl. & Jr. App. 338. 
 Ackland v. Paynter, 8 Pr. 95. As to the 
 
SECT. 2.] PRIVILEGED GOODS, OR PLACES. 653 
 
 any title to the goods seized acquired bond fide before the actual 
 levy without notice (m). The provisions of the Companies 
 Act, 1862, ss. 87 and 163, have been cited, ante, p. 531. The 
 words " put in force," there used, mean the taking of posses- 
 sion by, not the delivery of the writ to, the sheriff. Where, 
 therefore, the execution creditor placed the writ in the hands of _, 
 the sheriff three hours before a petition for winding up the 
 company was presented, but possession was not taken till three 
 hours afterwards, all further proceedings under the writ were 
 stayed {%). Under particular circumstances, however, i.e., where 
 the company have not acted fairly towards the judgment creditor, 
 he will be allowed to complete his execution (o). "Where the 
 creditor takes possession lefore the winding up, the Court of 
 Chancery will not, under the provisions of the 87th section, 
 restrain him, as a general rule, from reaping the benefit of his 
 diligence {p). And so, if the creditor would have been in pos- 
 session but for the fact of the judgment debtor having prevented 
 him by force {q). 
 
 By the 30 & 31 Vict. c. 127, s. 4, continued by 34 & 35 Vict, 
 c. 95, no execution can be levied on the rolling stock or plant of a 
 railway company up to the 1st of September, 1872, and the end of 
 the then next session, if the line is open for public trafi&c (r). The 
 7th section of the first-mentioned Act provides, that after the filing 
 of a scheme of arrangement between the company and its creditors, 
 under s. 6, the Court of Chancery may restrain any action against 
 the company on such terms as it thinks fit; and the 9th section 
 provides, that after publication of a notice in the London Gazette, 
 that the scheme has been filed, no execution, attachment, or other 
 process against the property of the company shall be available 
 without the leave of the court. Under these sections the court 
 has only an interim power, between the filing and the enrolment of 
 a scheme of arrangement, to allow an execution, but after the 
 enrolment any creditor bound by the scheme would, it seems, be 
 prevented from issuing execution (s). 
 
 Power of the sheriff to convpel rival claimants to interplead and 
 establish their title.— &j 1 & 2 Wm. 4, c. 58, s. 6, reciting that 
 difficulties arise in the execution of process against goods and 
 chattels, by reason of claims made to such goods and chattels 
 
 (m) See Edbson v. TheUuson, L. K., 2 (3) Se London Cotton Co., L. E., 2 Bq. 
 
 Q B 642. *-'*• ^^■ 
 
 (n) Re London and Devon Biaaiit Co., (r) See He Cambrian Railways Com- 
 
 L V 12 Eq. Ca. 190. jpany's Scheme, L. E., 3 Ch. App. 278. 
 
 '(o)'jle Bcustow & Co., L. E., 4 Eq. Ca. («) -Ke Potteries, Shrewsbury, & North 
 
 gg2 W(des Rwy., L. E., 5 Oh. App. 67. Pot- 
 
 ( p) Re Great Ship Co., 10 Jur. N. S. 3. teries, Shrewsbury, & NoHh Wales Rwy. v. 
 
 Pu£yn-Mhowys Mining Co., L. R„ 4 ^' ^i»«^. ^: % 6 Ch. App. 621. 
 Ca. 689, 
 
654 TEESPASSES BY SHBEIFFS. [CHAP. XIV. 
 
 by persons not being the parties against whtom the process has 
 issued, wbereby sheriffs and officers are exposed to actions, it 
 is enacted, that "when any such, claim shall be made to any 
 goods or chattels taken, or intended, to be taken, in execution, 
 under any such process, or to the proceeds or value thereof," 
 it shall be lawful for the court from which such process issued, 
 upon application of the sheriff or officer, made before or after 
 the return of such process, and before or after any action brought, 
 to call before them, by rule of court, as well the party issuing 
 the process as the party making such claim, and thereupon 
 to exercise, for the -adjustment of such claims, and the relief 
 and protection of the sheriff vor officer, any of the powers cojiferred 
 by the statute, and to make such rules and decisions as shall 
 appear to be just. And the 1 & 2 Vict. c. 45, s. 2, enables any 
 single judge of the superior courts to exercise the powers and 
 authorities for the relief and protection of the sheriff or other 
 officer given by virtue of 1 <fe 2 Wm. 4, c. 58, s. 6. Among the 
 powers contained in the last-named Act is the power of making 
 rules and orders (s. 1), calling upon the claimant to appear and 
 state the nature and particulars of his claim, and maintain or 
 relinquish his claim, and to stay proceedings in actions, and to 
 order actions to be tried, and direct which of the parties are to be 
 plaintiff or defendant in such actions. 
 
 These powers may be exercised, though the titles of the claimants 
 have not a common origin, but are adverse to, and independent of, 
 one another {f). But they do not apply to claims for rent, unless 
 the landlord claims the goods themselves, or the. proceeds of them, 
 as being his property (y). 
 
 It is not necessary that the sheriff should have made an actual 
 seizure of the goods in order to be entitled to the benefit of the 
 statute. It is sufficient if he intends to seize the goods, having the 
 writ or process in his possession (v). 
 
 The object of the Act is to give protection to the sheriff, wherever, 
 by reason of claims to the property, he is in danger of actions by the 
 execution creditor if he yields to the claim, or by the claimant if 
 he executes the writ. But it is not intended to protect the sheriff, 
 where the resistance is to the writ itself, i.e., where the party in the 
 cause objects to any execution on his own goods, for there the 
 process itself, properly executed, would be the sheriff's defence, (w) ; 
 nor does it apply where there has been an unlawful breaking open 
 of the outer door of a dwelling-house by the sheriff, in order to 
 
 («) 23 & 24 Vict. c. 126, s. 12. J., Exch. 280. Day v. Oarr, 7 Exoh. 
 
 (u) Bateman v. Famsworth, 29 Law J., 886. 
 
 Exoh. 365. (y,) Fenwick t, Laycofii, 2 Q. B. 110, 
 (v) LW' T, Rds^i, U Exeh, 13; 24 Jj»W 
 
SECT. 2.] INTEEPLEADEE, 655 
 
 effect the seizure of the chattels, for this is a wrong quite inde- 
 pendent of any question of ownership of the goods seized, and the 
 court or a judge has no authprity to stay proceedings in an action 
 brought in respect thereof. The statute is altogether sHent respect- 
 ing such a subject-matter of complaint, and therefore affords the 
 sheriff no protection in respect of it. " It is quite clear," observes 
 Maule J., " that an action for unlawfully breaking and entering a 
 house in the execution of process is no more within the contempla- 
 tion of this Act than an assault and battery of the party would be. 
 It cannot be said that the damages in such an action are something 
 as to which the sheriff doubts who is entitled to them. He is 
 charged as a wrong-doer ; there is nothing to interplead about ; 
 nobody but himself is interested in the result, or liable for the 
 consequences " (a;). 
 
 But when there has been no independent trespass, when the 
 outer door of a dwelling has not been broken open, and the entry 
 into the house would be lawful, and protected by the process, if the 
 goods found therein should turn out to be the goods of the 
 execution debtor, the entry into the house cannot be separated 
 from the seizure of the goods, but the whole cause of action may 
 be stayed until the ownership of the goods has been determined by 
 interpleader (y). If that is determined in favour of the sheriff, all 
 further proceedings against him will be stayed ; if it is decided 
 against him, the action may be proceeded with for the recovery of 
 damages for the trespass in the house as well as for the seizure of 
 the goods (z). 
 
 If the execution creditor has personally interfered in making the 
 seizure, and directed the movements of the sheriff (see ante, p. 594), 
 so as to render himself liable to an action, the court or a judge has 
 power to interfere for his protection, as well as for the protection of 
 the sheriff, and to stay proceedings against him (a). 
 
 The court wUl not lend its assistance to the sheriff where there 
 have been delays, irregularities, or sinister dealings on the part of 
 his officers charged with the execution of the process. If a sheriff 
 delays to make application for relief at the request, and for the 
 interest, of one of the rival claimants, he places himself out of the 
 protection of the statute (I). To enable him to have the benefit of 
 the course open to him by the statute, it is essential th^t he should 
 come promptly to the court, without exercising any discretion of 
 his own upon the matters ia controversy (c). But if, after he has 
 
 (x) SollUr V. Laurie, 3 C. B. 342. (a) Carpenter v. Pearce, 27 Law J., 
 
 (v) Winter v. Bartholomew, 11 Bxeh. Exoh. 143. 
 ^^) troiuiA! ^^^ Mutton V. Young, 4 0. B. 375. 
 
 (J) FosUr T. Pritchm-d, 2 H, & N. (c) Crump v. Day, ib. 764. Tufton v, 
 
 15}/ ^ardwc?, 29 Law J,, Oh, 225, 
 
656 MISCONDUCT OF SHERIFFS. [CHAP. XIV. 
 
 seized tut before he has sold, he receives notice of adjudication in 
 bankruptcy, and subsequently an order of court is made directing 
 him to make a return to the writ of fi. fa.; he may sell under the 
 authority of such an order, and pay the money into court {S). 
 There are some old cases in -which a great degree of strictness was 
 exercised in admitting the sheriff to the benefit of the Act, and in 
 which protection was denied under circumstances in which it 
 would now be conceded (e). • 
 
 In an interpleader suit the execution creditor may claim 
 property which the execution debtor has disabled himself from 
 claiming, for an estoppel which would be binding against the 
 execution debtor in a claim put forward by him, will not be binding 
 upon the execution creditor or the sheriff, who are strangers to the 
 acts of the execution debtor (/). 
 
 Claims of landlords on sheriffs for rent in arrear. — By 8 Anne, 
 c. 14, s. 1, it is enacted, that no goods and chattels upon lands or 
 tenements leased for life or lives, term of years, at will, or otherwise, 
 shall be liable to be taken by virtue of any execution, unless the 
 party at whose suit the execution is sued out shall, before the 
 removal of such goods from off the said premises, pay to the 
 landlord or his bailiff all such sums as shall be due for rent at the 
 time of the taking, not exceeding one year's arrears of such rent (g). 
 If the rent of the premises on which the levy is to be made is in 
 arrear, there are no goods out of which the sheriff is bound to levy, 
 until the arrear, not exceeding one year's rent, has been paid to the 
 landlord. The sheriff is not called upon by law to advance the 
 money to pay the rent, but such advance must be made by the 
 execution creditor ; and if he neglects to make it after notice of the 
 rent being due, the sheriff cannot be called upon to seize and sell 
 the goods, let their value be what it may (A). If a year's rent is in 
 arrear, and the goods on the premises are not sufficient to satisfy a 
 year's rent, the sheriff must withdraw (i), and he may be restrained 
 by injunction from selling the landlord's fixtiires (j). 
 
 If the landlord or his agent accepts an undertaking from the 
 sheriff or his officer to pay the rent due, and consents to the 
 removal of the goods, he waives the benefit of the statute, and 
 cannot afterwards sue thereon. His remedy in such a case is upon 
 the undertaking (k). 
 
 A trustee in whom the legal estate in reversion is vested may 
 
 {d) Child V. Mann, L. U., 3 Eq. Ca. (g) Foster v. Cooksim, 1 Q. B. 419. 
 
 806. See ante, p. 347, 348. (h) Codcer v. Mmgrove, 9 Q. B. 234. 
 
 (e) HoU T. Frost, 3 H. & N. 821 ; 28 (i) Foster \. EiUon, 1 DowL 35. 
 
 Law J., Exch. 55. (j) Sicftardion t. Ardky, 38 L. J., Ch. 
 
 (/) Mchards v. Johnf^n, 4 p, ^ N. 508. 
 
 684. "' ' ' (4) -ftiffterif T. H'ood, 3 Campb. 24. 
 
SECT. 2.] SALE OF GOODS SEIZED. " 657 
 
 be the landlord withm the meaning of the statute (l). To entitle 
 the landlord to the year's rent, there must be an existing tenancy 
 at an ascertained rent at the time (m), and the execution must not 
 be an execution put in by, or at the instance of, the landlord 
 himself {n). The statute does not extend to a ground-rent due to 
 the superior landlord (o), nor to goods seized by the sheriff and 
 conveyed by bill of sale to the execution creditor, but not removed 
 from the demised premises, the landlord's right to distrain such 
 goods not being taken away (p). 
 
 This right of the landlord to a year's rent is confined to execu- 
 tions upon judgments (g') and private extents, and does not extend 
 to prerogative process, such as an extent in chief, or an extent in 
 aid (r). 
 
 Sale ly sheriffs of goods taken in execution. — It is the duty of the 
 sheriff to sell goods seized under a fi. fa. within a reasonable time 
 after the seizure ; and if he fails to do so, an action is maintainable 
 against him by th,e judgment creditor (s). If he sells more than 
 sufficient to satisfy the judgment debt and costs, he will be respon- 
 sible in damages to the execution debtor (t). In selling goods 
 seized under a writ of execution, he can convey no better title to 
 the goods than the execution debtor himself possessed at the time 
 of the sale, and he does not, when he sells, profess to do more than 
 that, and does not warrant the title to the purchaser (u). If- the 
 sheriff has sold goods which were in the possession of the execution 
 debtor at the time of the sale as the ostensible owner, but which 
 were in* reality the goods of a plaintiff, who had let them to hire to 
 such execution debtor, the sheriff is not liable to an action for the 
 wrongful sale, unless it be proved that some actual damage has 
 accrued therefrom to the plaintiff (x), and that he has been prevented 
 by the act of the sheriff from recovering possession of his goods (x). 
 
 Capture of the wrong person. — If the sheriff's officer has, by 
 mistake or through false information, arrested the wrong party 
 under a ca. sa., the sheriff is responsible for the mistake, unless the 
 person arrested was himself instrumental in giving false information 
 to the sheriff, or brought about his imprisonment by his own 
 misrepresentation {y). And it does not lie in the sheriff's mouth 
 to say that he arrested A, sued under the name of B, although A 
 
 ■■» 
 
 U) Colyer V. Speer, 4 Moore, 478. (>•) ■««« v. Southerly, Bunb. 5. 
 
 (m) Sodqson v. Oascoigne, 5 B. & Aid. (s) Jacobs v. Humphrey, 2 Cr. & M. 413. 
 
 88^ ' " Sates v. WingjieU, 2 N. & M. 831. 
 
 \n) Taylor v.' Lamon, 4 M. & P. 316 ; («) Satchelor v. Vyse, 4 M. & So. 552. 
 
 6 Blng. 536. Lee v. Lopes, 15 East, 230. («) Chapman t. Spelkr, 14 Q. B. 621. 
 
 • (o) Sennet's case, 2 Str. 786. (^ TaMcred v. ^Ij^ffooti, 4 H. & N. 444 ; 
 
 \p) SmaUmam. v. Pollard, 7 So. N. E. 28 Law J., Exch. 362. 
 911 -6 M & Gr 1001. White y. Sin- (y) Davws y. JenUns, ante, t^. 4. Dun- 
 stead, 13 C. B. 304. ««""■ V. Paterson, ante, p. 579 ; post, p. 
 
 (q) Srandling v. Bmrington, 9 D. & B. 663. 
 
 617. 
 
 n u 
 
658 MISCONDUCT OF SHERIFFS. [CHAP. XIV. 
 
 was in fact served witt the writ of summons issued against B, upon 
 which service the action had proceeded to judgment (»). 
 
 Arrest of the right, person under a wrong name.-^li there is no 
 mistake as to the person of the debtor, if his identity is established, 
 but there is a misnomer, either from the debtor's having Tiimself 
 given a wrong name, or from his having suffered judgment to be 
 obtained against him in the wrong name, he will be deemed to be 
 known as well by his assumed name as by his real name, and he 
 wiU have no ground to object to the proceedings against him (a). 
 If he has been sued by a wrong name, and suffers judgment to go 
 against him without attempting to rectify the mistake, he cannot 
 afterwards, when execution has been issued against him in the 
 wrong name, contend that he is not the person whom the sheriff or 
 his officer is directed to arrest (&). Whenever a defendant omits to 
 plead a misnomer he may be taken in execution in the wrong 
 name (c). 
 
 Illegal arrest on Sundays. — The 29 Car. 2, c. 7, s. 6, prohibits 
 the service or execution on Sunday of any writ, process, warrant, 
 order, judgment, or decree, except in cases of treason, felony, and 
 breach of the peace {d), and the 9 Geo. 4, c. 31, s. 23, makes it a 
 misdemeanour to arrest any clergyman upon any civil process while 
 he is performing divine service (e). 
 
 Incurability of a wrongful imprisonments-Arrest under one of 
 several writs. — -Where an arrest has been made on a valid writ, the 
 sheriff may detain the person arrested on any number of "valid 
 writs which he has at the time against such person, or which 
 afterwards reach him ; but if the sheriff makes the arrest on a forged 
 or a feigned writ, or a writ which has never been sealed or stamped, 
 and which is therefore invalid, this gives him no right to detain 
 the party on any other valid writs which may be at that time in 
 his hands, for the sheriff cannot avail himself of a custody brought 
 about by illegal means to execute the other writs ; and if the 
 sheriff knew, or ought to have known, that the writ under which 
 he arrests was void, and nevertheless makes the arrest, and so 
 deprives himself of the power of executing other valid writs in his 
 hands, he wiU be responsible for culpable negligence and breach of 
 duty. If an arrest be made on a Sunday, or in a way not authorized 
 by law, the sheriff cannot afterwards make that valid by detaining 
 the person under a legal writ, but must first give him an opportunity 
 of going at large, and then execute the legal writ. But that is not 
 
 (z) Kelly T. Lcmrence, 33 L. J., Bxch. 5 M. & Gr. 779. 
 197. (c) Crmoford r. SaichweU, 2 Str. 1218, 
 
 (a) Price v. HarwOod, 3 Campb. 108, (d) WeUs v. Qwmey, 8 B. *; 0. 769. 
 
 Wtdher v. Willoughiy, 6 Taunt. 530. («} Qoddwrd v. Hwnia, 5 M. & P. 122; 
 
 (J) Fiiher r. Magna/y, 6 So. N. B. 599; 7 Bing. 320. 
 
SECT. 2.] COUNTERMAND OF WEITS. 659: 
 
 the case with regaxd to an execution against the goods (/). If, there- 
 fore, a first arrest be a false imprisonment by reason of the wrongful 
 act of the sheriff himself or his officer, no suhseq^uent conduct or act 
 of his can legalise the continuance by him of that imprisonment {g). 
 
 Arrest of ' privileged persons.- — In aU cases of privilege, whether 
 on the ground of the person being a member of the legislature (h), 
 or having a duty to perform about the person of the Queen, or from 
 any other cause, it has always been considered that the sheriff is 
 justified if he obeys the Queen's writ, and that the privileged 
 person must apply to the court for his discharge (t). The arrest by 
 the sheriff under a writ from any of the Queen's courts, of a person 
 privileged from arrest, by reason of his being in attendance as a 
 witness, under the process of another court, does not form the 
 ground of any action at law, but is only the subject of an 
 application to the court, under whose authority the party has been 
 compelled to appear as a witness, to discharge him from custody (/<;). 
 If a person who has obtained an order of protection from a court 
 of competent jurisdiction, or \^ho is attending or returning from 
 the coiu't (Q, is, nevertheless, arrested under a ca. sa., he is entitled 
 to be discharged, and thus obtains the benefit of his protection, but 
 he has no claim for damages (m). 
 
 Countermand of writs and warrants.—NQtice to the sheriff or 
 his officer not to execute a ca. sa. will render both the bailiff and 
 the sheriff responsible for a false imprisonment if the arrest is 
 made after the receipt of the notice, provided the notice has been 
 given by the plaintiff's attorney. If the officer receives notice from 
 the attorney that the action is settled, or that the execution is 
 withdrawn, that is a notice not to make the arrest (n). If a writ 
 is left at the sherift's office, with orders , not to execute it, and the 
 sheriff arrests under it, he is a wrong-doer : if it is to be returned 
 non est inventus, it must lie, and the sheriff ought not to issue a 
 warrant or arrest ; but if the defendaht is brought in, or chooses to 
 come in and surrender, then the sheriff must arrest (o). 
 
 Under a writ of fi. fa., which directs the sheriff to make a 
 certain specified sum out of the goods and chattels of the defendant, 
 
 (/) Eggmgton's case, 2 Ell. & Bl. 728. Oil^n v. Cohen, L. B., 4 Exch. 131, as 
 
 Percwd v. Stamp, 9 Bxch. 171. ffooper to the arrest of an accused person out on 
 
 T. Lane, 27 Law J., Q. B. 75 ; 6 H. L. 0. bail attending a police court. 
 
 437 {Ij Chcminn v. Alexamwre, 31 Law J., 
 
 (g) HvmpKrey r. MitcheU, 5 Sc. 51.- , Q. B. 79. , , „ „ ,„ 
 
 (h) See Newcastle (Duke of) v. Mc/rris, (m) Yearsley v. Meane, 14 M. & W. 
 
 L. E., 4 Engl. & Ir. App. 661. See 34 334. „. , „„ t 
 
 & 35 Vict. c. 60, disqualifying bankrupt [n) Ftitcher v.' Hinder, 28 Law J., 
 
 peers from sitting or voting in parlia- Excb. 28. Withers v. Pa/i-ker, 4 H. & N. 
 
 ment. See s. 10. 524 ^ „ t r, .roo 
 
 (i) Alderson, B., Rideal v. Fort, 11 (o) Soop&- r. Lane, 6 H. L. C. 522. 
 
 Exch. 852. Magnay v. Monger, 4 Q. B. 817. 
 
 (h) Moffnay v. Burt, 5 Q. B. 395. See 
 
 u D 2 
 
660 MISCONDFCT OF SHERIFFS. [CHAP. XIV. 
 
 and have the money at the return of the writ, the sheriff or his 
 officer may receive the money in discharge of the execution, and 
 withdraw the levy and liberate the defendant's goods on payment 
 of the money ; hut under the writ of ca. sa., which commands the 
 sheriff to have the body of the debtor at the return of the writ to 
 satisfy the plaiatiff, and not the money to pay the debt, the sheriff 
 has no ri^t to receive the money and discharge the debtor, and 
 substitute his own responsibility for that of the debtor, whose body 
 the creditor has a right by law to keep until he has been paid the 
 debt. If, therefore, a sheriffs ofSicer, charged with the execution of 
 a writ of ea. sa., allows the debtor, whom he has arrested under it 
 to go at large on paying to him the sum mentioned in the writ, the 
 sheriff will be responsible for an escape, for it is a neglect of duty 
 on the part of the officer for which the sheriff is answerable (p). 
 
 Liability of the sheriff for an escape. — If a defendant, after having 
 been taken in execution, is seen at large for ever so short a time, 
 either before or after the return of the writ .under which he has 
 been arrested, the sheriff is responsible for an escape, as the writ 
 commands him to take the defendant, and him safely keep, so that 
 he may have him ready to satisfy the plaintiff {q). It is the duty 
 of the sheriff to carry his prisoner to the county gaol after he has 
 been arrested under a ca. sa., and when once in gaol, the debtor 
 must be kept there, and cannot be allowed to go out, though with 
 a keeper or sheriff's officer. If, therefore, he is seen without the 
 walls of the prison, the sheriff is responsible for an escape (r). If 
 the sheriff, after he has arrested the debtor, receives from the latter 
 the anlount of the debt and costs, he will be responsible to the 
 judgment creditor for an escape, if he sets his prisoner at large 
 contrary to the exigency of the writ, before the judgment creditor 
 has been satisfied his demand ; for the duty of the sheriff is to 
 pursue the direction of the writ, and be ready- at the day, not with 
 the money, but with the body of the debtor, unless the person 
 himself who sued out the writ interfere and agree to the liberation 
 of the prisoner upon receipt of the money which has been paid to 
 the sheriff (s). 
 
 It is the dtity of an officer going to make an arrest in the 
 execution of legal process to choose his opportunity, and go with a 
 force sufficient to repel opposition, and enable him. to execute the 
 process entrusted to him. If he fails to make an arrest, or if, having 
 got the debtor into his custody, he fails to keep him for want of 
 sufficient force, he will be responsible for a breach of duty {t). But 
 
 (p) Wood> V. Finnis, 1 Exch. 372. (,) Slaehford v. Amtm, U East, 473. 
 
 (q) Bawkim y^Plfner, 2 W. Bl. 1048. Woods v. Pimiis, 7 Bxeh. 372. 
 
 Moore y Moore, 27 Law J. Ch. 387. (t) NkhoU y. DwrUy, 2 Y. & J. 403. 
 
 (r) WiMuims y. Mo^yn,i M. &W. 1,52, i»> . » «. auo. 
 
SECT. 2.] SEIZURE UNDER VOID PROCESS. 661 
 
 if the prison take fire, or be broken open by the king's enemies of 
 another kingdom, and the prisoner escapes, this will excuse the 
 sheriff ; but it is otherwise if the prison be broken open by traitors 
 and rebels (u). And if the escape has been brought about by 
 misrepresentation or misconduct on the part of the plaintiff, the 
 latter has no cause of complaint against the sheriff (x). 
 
 By 8 & 9 Wm. 3, c. 27, s. 8, it is enacted, that if the keeper of 
 any prison shall, after one day's notice in writing, given for that 
 purpose, refuse to show any prisoner, committed in execution, to 
 the creditor at whose suit he was committed, or to his attorney, 
 every such refusal shall be adjudged an escape in law. 
 
 Becwpture upon fresh pursuit. — The sheriff may retake the 
 debtor upon fresh pursuit in any county without an escape- warrant, 
 and plead the recapture in bar of an action for damages. 
 
 Discharge of debtors taken in execution. — By 15 & 16 Vict. c. 76, 
 s. 126, it is enacted, as we have seen, that a written order, under 
 the hand of the attorney in the cause, by whom any writ .of ca. sa. 
 has been issued, shall justify the sheriff, or person in whose custody 
 the party may be, under such writ, in discharging such party, 
 unless the person for whom such attorney professes to act shall 
 have given written notice to the contrary. The sheriff is not bound 
 to discharge a debtor from his custody immediately on receiving an 
 order for his discharge. He is entitled to a reasonable time to 
 search his ofi&ce, to ascertain whether there are any other writs 
 lodged against him (y). 
 
 Arrest of the person and seizure of goods under void or irregular 
 process. — In depriving a. man of his liberty and seizing his goods, 
 the sheriff and his officers act at their peril, so that if the process 
 is feigned, forged, or simulated, and is not the process or order 
 of the, court, it is a mere nuUity, and the sheriff can derive no 
 protection from the piece of waste paper (z). But if the sheriff 
 has acted under a genuine writ, issued from one of the superior 
 courts, he and his officers acting under him are protected by it, 
 although it be on the face of it irregular, as a capias against a 
 peeress (a), or void in form, as a ca. sa. not made properly return- 
 able ; for the officers ought not to examine the judicial act of the 
 court, nor exercise their judgment touching the validity of the 
 process in point of law, but are bound to execute it, and are 
 therefore protected by it (a). But the persons who have issued the 
 void or irregular process are, as we have' seen, responsible for all 
 damage and injury done in the execution of it after the process has 
 
 (u) Southcote's case, 4 Co. 84a. {«) hooper v. lane, 10 Q. B. 561 ; 6 
 
 (x) Siscocks V. Jones, M. & M. 269 ; H. L. 0. 443. ^ ^ ^, ^, 
 
 vast vv 662 3. W Countess of Rutland s case, 6 Hep. 
 
 (y) s'amvd v. 'BuUer, 1 Exch. 440. 54a. Cotes y. MicMU, 3 Ley. 20. 
 
662 MISCOSDUCT OF SHERIFFS. [CHAP. XIV. 
 
 been set aside by tlie court or a jutige unless it has been set aside 
 for error (6), or on the terms that no action shall be brought (c), 
 and they will be ressponsible, in an action for false imprisonment, 
 although the writ has not been set aside, if it has been issued in 
 defiance of the express provisions of a statute (d). 
 
 Generally speaking, however, so long as the process has not 
 been set aside, it is a protection to the attorney who has issued it, 
 and to the client by whose commands it was issued (e) ; and though 
 when it has been set aside it is no longer a justification to them, 
 yet it always remains a justification to the sheriff and his officers, 
 who had no option but to obey it (/). A writ of execution, there- 
 fore, may, at the same time, be both a good writ and a bad writ ; 
 that is to say, a writ set aside for irregularity may be good as to 
 the sheriff and all persons acting under him, and bad as to the 
 persons who sued it out (g). 
 
 If the sheriff, by force of a/, fa., sell goods, and afterwards the 
 judgment is reversed by writ of error, the defendant shall not 
 have restitution of his goods, but the value of them, for which they 
 were sold ; and there are two reasons for this : — 1. If the sale of 
 the sheriff, by force of a fieri facias, should be avoided by subse- 
 qaent reversal of the judgment, there would be no buyer, and by 
 conse(|uence no execution done. 2. In the case of a fi^n facias, 
 the sheriff is compellable to make and levy the debt of the goods, 
 &c., of the defendant, and therefore there is reason that it should 
 stand (A). 
 
 Eamnption of sheriffs and, others from responsibility whe% the 
 injury has heen Irought ahout hy the misrepresentation of the plaimtiff. 
 — Every person who, by misrepresentation or misstatement, causes 
 an of&cer charged with the execution of legal process to make a 
 mistake and arrest the wrong person, or seize his goods, cannot 
 complain of the wrong which he has himself occasioned. If by 
 misrepresentation he causes himself to be arrested, he is the author 
 of his own misfortune, and has no right to charge it upon the 
 of&cer (i). If the plaintiff has represented himself to be the person 
 against whom the process has been issued, and is arrested in 
 consequence of that representation, he is estopped, as we have 
 seen (ante, p. 579), as regards that imprisonment, from denying 
 that he was the right person ; but, after he has given notice of the 
 
 
 Williams v. Smith, ante, p. 596. 356. Best, J., in WooUey v. Cla/rk, 5 B. 
 
 Parsons y. Lloyd, 3 Wils. 341. & Aid. 746. Turner t. Fdgate, 1 Lev. 
 
 \W) Broolca t. BodgUnson, 4 H. & N. 95. 
 712. By the 32 & 33 Vict. c. 62, im- {g) Parke, B., in Jones v. WiUiams, 9 
 
 prisonment for debt is abolished, with a Dowl. 710. JDoe t. Thom, 1 M. & S. 
 
 few exceptions. 427. 
 
 (e) Siddell v. PaJceman, 2 C. M. & E. (A) Soe's case, 5 Oo. 90b. 
 
 33. Bkmchenay v. Bwton, 4 Q. B. 707. (i) Fisher v. Magnay, 5 M. & Gr. 778. 
 
 (/■) /ones V. Williams, 8 M. & W. 
 
SECT. 2.] FALSE RETURNS — EXTORTION. 663 
 
 real state of facts to the officers, and given them a fair opportunity 
 of inquiry, the detention would be unlawfal (/). 
 
 False returns to writs of execution. — If the sheriff makes a false 
 return to a writ of execution, he is responsible in damages to the 
 execution creditor if any actual damage has resulted to him from 
 the false return (k), but not otherwise ; nor is he estopped by his 
 false return from showing that there were in fact no goods of the 
 execution debtor, on which he could levy, and so that no damage 
 was suffered by the execution creditor (I). A return of nulla bona 
 to a writ of Ji. fa. means, that there are no goods applicable to the 
 execution of the plaintiffs writ, not that there are no goods at aU 
 belonging to the execution debtor. If, therefore, the payment of 
 prior claims, such as rent due to the landlord, or sums leviable 
 under prior writs of execution, has exhausted the fruits of the levy, 
 the sheriff has no goods out of which the damages can be levied, 
 and a return of nulla bona is a good return (m). If the shenff 
 returns that he has seized certain goods and chattels, he ought to 
 specify their value, and not return that their value is to him 
 unknown (n). A reasonable degree of certainty in the language of 
 the return is sufficient. 
 
 The sheriff would not be allowed, in an action against him for 
 a false return, to defend himself by putting a construction on his 
 own return which, although making it true in fact, would make it 
 bad in law, when, it admits of another construction which will 
 make it good (o). 
 
 Extortion by sheriffs and their oficers. — By 29 Eliz. c. 4, s. 1, it is 
 . enacted, that it shall not be lawful for any sheriff, under-sheriff, 
 bailiff, &c., nor for any of their officers, deputies, &c., by reason or 
 colour of their offices, to receive or take for the serving or executing 
 any extent or execution, more consideration or recompense than is 
 by that Act limited and appointed, upon pain that every sheriff, 
 under-sheriff, &c., their officers, &c,, who shall directly or indirectly 
 do the contrary, shall forfeit to the party grieved treble damages, 
 and pay a penalty as therein mentioned, but the Act is not to 
 extend to fees taken for executions within any city or town 
 corporate. The 7 Wm. 4 & 1 Vict. c. 55 further enacts, that it 
 shaU be lawful for sheriffs and their officers to receive such fees, 
 and no more, as shall be allowed by the taxing officers of the courts 
 of Westminster, under the sanction of the judges, and that any 
 sheriff or officer receiving any fee or gratuity greater than is allowed, 
 
 (/) Dumton v. Paimon, 2 C. B., N. S. Wintle v. Freemn, 11 M. & E. 547. 
 
 495 • 26 Law J., 0. P. 268. Heeman v. Evam, 4 So. N. K. 2. 
 
 (h) WyVk V. Birch, i Q. B. 566. M Barton v. GUI, 12 M. & W. 315 
 
 (l) Siimson V. Pa/rnham, L. B., 7 Q. B. (o) Seynolds v. Barford, t Sc. N. E. 
 
 175. 239. 
 ' (m) Shattock v. Cwrdm, 6 Bxch. 725. 
 
664 MISCONDUCT OF HIGH BAILIFFS, ETC. [CHAP. XIV. 
 
 shall be guilty of a contempt of court, and punishable accordingly. 
 And by 5 & 6 Vict. c. 98, s. 31, it is enacted, that no poundage 
 shall be payable to sheriffs, bailiffs, and others, for taking the body 
 of any person in execution {p) ; but there shall be payable to the 
 sheriff, or other person having the r-eturn of writs, upon every such 
 execution against the body, such fees only as shall be allowed to be 
 taken under the 7 Wm. 4 and 1 Vict. c. 55. The sheriff still 
 continues entitled to his poundage under the statute of Elizabeth, 
 on an execution against the goods of the debtor, and also to any 
 additional fee that may be allowed by the judges under 7 Wm. 4 
 and 1 Vict., and to no more. If his officer takes more the sheriff is 
 guilty of extortion, and is liable to an action for treble damages {q). 
 Duties and responsibilities of the high lailiff, bailiffs, and 
 registrars, of the county pourt. — By 9 & 10 Vict. c. 95, s. 33, the 
 high bailiff of the county' court is made responsible for all the acts 
 and defaults of himself and the bailiffs appointed to assist him, in 
 like manner as the sheriff of any county in England is responsible 
 for the acts and 'defaults of himself and his officers. His liability 
 is co-extensive with that of the sheriff (r), but he is not responsible 
 for acts done by his bailiffs under colour of some special power 
 or authority, supposed to be given to them under the County 
 Courts Act, and not done under the aiithority or in execution of a 
 warrant (s). The 29 & 30 Vict. c. 14, s. 11, provides for the 
 appointment of the registrars of county courts to succeed to the 
 duties and liabilities of high bailiffs, as vacancies shall occur. 
 
 Liability of ministerial officers where the court has no jurisdiction 
 and no authority to issioe process. — At the common law, a grievous 
 responsibility was thrown upon ministerial officers of courts of 
 inferior and limited jurisdiction, where the court had made orders 
 and directed the issue of process, without jurisdiction in the matter, 
 or where it had exceeded its jurisdiction. It was held, that when 
 the • court had not jurisdiction of the cause, then, the whole pro- 
 ceeding being cord?m non j'udice, actions would lie against the 
 person who sued out, and against the officer or minister of the 
 court who executed, the precept or process of the court, without 
 any regard to such precept or process ; " for the officer is not 
 bound to obey him who is not judge of the cause any more than he 
 is bound to obey the mere precept or order of a stranger, for the 
 rule is, j^icum a non suo judice datum nullius est momenti " (t). 
 Therefore, where an officer acting under a warrant of a commissioner 
 of bankrupts took and detained a person in custody under it, and 
 
 (p) Hayley v. Racket, 5M. S!,W. 620. (r) Burton v. Le Oros, 34 Law J., Q. B. 
 
 (?) Wrigh^ v. Oreenacre, 10 Q. B. 12. 91. 
 
 PilUngton v. Coohe, 16 M. & W. 615. (s) Smith v. Pritehard, 8 C. B. 588. 
 
 Woodgate v. Knatchbull, 2 T. R. 155. (J) MarshaUea ease, 10 Co. 76a. 
 
SECT. 2.] LIABILITY OF GAOLERS. 665 
 
 it appeared tliat the commissioner had no jurisdiction to make the 
 warrant, it was held that an action of trespass was maintainable 
 against the officer (u). But the mischiefs arising from this 
 unreasonable state of the law have to a great extent been remedied 
 by the legislature (v). 
 
 Duty of lailiffs of the county court to satisfy the landlord's claim 
 for rent— By the 19 & 20 Vict. c. 108, s. 75, it is enacted, that the 
 8 Anne, c. 14 (ante, p. 656), shall not apply to goods taken in exe- 
 cution under the warrant of a county court ; but the landlord may, 
 within five days of the taking, or before the removal of the goods, 
 make a claim in writing for rent, signed by himself or his agent, 
 stating the amount of the rent in arrear, and the time for which it 
 is due ; and if s.uch claim be made, the officer making the levy is 
 to distrain for the rent so claimed, and the costs of the distress, but 
 he Is not to sell within five days, unless the goods be of a perish- 
 able nature, or upon the request in writing of the person whose 
 goods have been taken. After the five days the bailiff is to sell 
 such of the goods as wiU satisfy, first the costs of the sale, next the 
 claim of the landlord, not exceeding the rent for four weeks where 
 the tenement is let by the week, the rent for two terms of payment 
 where the tenement is let for any other term less than a year, and 
 the rent for one year in any. other case, and lastly, the amount fbr 
 which the warrant issued. If any replevin be made, the bailiff is, 
 notwithstanding, to sell such portion of the things taken as will 
 satisfy the costs of the sale under the execution, and the amount 
 for which the warrant issued. Any overplus of the sale or residue 
 of the goods is to be returned to the defendant. 
 
 The county court bailiff cannot, under this statute, distrain the 
 goods of a stranger on the demised premises for the purpose of 
 satisfying the landlord's rent (w). 
 
 Liabilities of gaolers. — A gaoler who receives a prisoner under 
 a warrant is not responsible in damages if the warrant has been 
 irregularly issued; but if the wrong man has been arrested and 
 brought to him, or the warrant is altogether void and a mere nullity, 
 he will be responsible for the detention. Where the plaintiff had 
 been delivered into the custody of the gaoler of a liberty under a 
 good warrant for arrest, though the execution of it was illegal, inas- 
 much as the plaintiff, under a warrant to the bailiff of the liberty, 
 had been arrested without the liberty, and afterwards carried into 
 the liberty and delivered to the gaoler, it was held that an action 
 could not be maintained against the gaoler, who was not bound to 
 
 (a) Wation y. Sodell, U M. & W. 57. 27 Law J., Q. B. 359. Foulger v. Tmjlm; 
 (■») Post, pp. 668—670, and eh. 15. 5 H. & N. 202. 
 
 (m)) Beard t. Knight, 8 Ell. & BI. 865; 
 
666 LIABILITY OF MESSENGEK IN BANKRUPTCY. [CHAP. XIV. 
 
 inquire whether the original arrest was tortious or not. " And it 
 was said by the court, that if he had been informed of the tortious 
 taking (without being of the covin or practising therein), he ought, 
 nevertheless, to detain the prisoner, he being delivered to him with 
 a good warrant of arrest, though the execution of it was illegal; for 
 if such inforniation had been false, and the gaoler had set the 
 prisoner at large, he had been liable for an escape. And the plain- 
 tiff was not without remedy, for he had a good action against 
 wrong-doers " (x). But if a sheriff's officer arrests the wrong man, 
 and hands him over to a gaoler, there, as the arrest is altogether 
 unjustifiable, and the warrant no protection, the gaoler who receives 
 and detains the wrong man is responsible for the wrongful im- 
 prisonment, and cannot justify under the warrant, though he had 
 no means of ascertaining the identity of the party brought to him 
 with the person named in the warrant, and could not, consistently 
 with his duty, have refused to receive and detain him (p). But if 
 the person thus wrongfully arrested does not, when brought to the 
 gaoler, complain of the wrongful arrest, or give the gaoler any 
 means of ascertaining that he is not the person named in the war- 
 rant, nominal damages only would be recoverable. 
 
 A gaoler is bound to discharge a prisoner, committed for con- 
 tempt of court in not answering a bill in Chancery, at the end of 
 thirty days, if the plaintiff in the cause does not bring the prisoner 
 to the bar of the court within that period (z). 
 
 LicMlity of the messenger of the Court of BankrWptcy. — By the 
 31 & 32 Vict. c. 71, s. 99, power is given to the Court of Bank- 
 ruptcy, where there is reason to believe that property of a bankrupt 
 is concealed in any house or place not belonging to him, to grant, a 
 search-warrant to any constable or prescribed officer of the court, 
 who may execute the same according to the tenor thereof, and may 
 also break open any house, building, or room of the bankrupt where 
 the bankrupt is supposed to be, or any building or receptacle of 
 the bankrupt, where any of his property is supposed to be («). 
 
 (as) OUiet V. Bessey, T. Jo:Aes, 214. (a) See Edge r. Pa/rJeer, 8 B. & 0. 
 
 ' ■ Aaron v. Alex<mder,Z Campb. 34. 700. Under the 12 & 13 Vict. c. 106, 
 
 T. Colemam, 4 H. & N. 265; 28 s. 10 6, the messenger of the Ootirt of Bank 
 
 Law J., Exch. 134 ; Bro. Abr. Tbespass, niptoy was entitled to the same protec- 
 
 pl. 133, 256, 265. tion as is allowed bylaw in the execution 
 
 (z) 11 Geo. 4 & 1 W. 4. c. 36, s. 15. of a search warrant for property reputed 
 
 Moone v. Rose, L. K., 4 Q. B. 486 ; 38 to be stolen or concealed. 
 L. J., Q. B. 236. 
 
SECT. 3.] ACTIONS AGAINST JUDGES. 667 
 
 SECTION III. 
 
 OF ACTIONS AGAINST JUDGES, SHEEIFFS, AND MINISTEEIAL OFFICEES 
 AND THEIR ASSISTANTS (b), AND PAETIES SETTING THEM IN MOTION. 
 
 Actions against county court judges — Notice of action. — Provision 
 is madB by the County Courts Act (19 & 20 Vict.'c. 108, s. 19) for 
 the prosecution of actions in the county court against judges of the 
 county court in the court of a district adjoining the district in 
 which the defendant is judge.. By 9 & 10 Vict. c. 95, s. 138, notice 
 of action is required, as we have seen, to be given to all persons 
 acting in execution of the County Courts Act. If, therefore, a 
 county court judge, in making an order of commitment, acts under 
 the lond fide belief that his duty as judge of the county court 
 renders it incumbent on him to do so, notwithstanding a prohibi- 
 tion has been issued, the act done by him must be considered as 
 done in pursuance of the County Courts Act, and he is entitled to 
 notice of action (c). 
 
 All judges of courts of inferior jurisdiction acting under the 
 authority oi an Act of Parliament, are in general entitled to notice 
 of action, and to an opportunity of tendering amends and paying 
 money inio court, and the action against them must in general be 
 brought within a certain limited period. 
 
 Eemedies against sheriffs and officers far an escape. — Formerly 
 the 13 Edw. 1, c. 11 {d), and 1 Eic. 2, c. 12, gave the party who 
 suffered by an escape of his debtor tlie same remedy against a 
 sheriff or gaoler guilty of the escape that he had against the debtor, 
 and enabled him to recover from such sheriff or gaoler the whole 
 debt and costs in an action of debt; but it has been enacted by 
 5 & 6 Vict. c. 98, s 31, that if any debtor in execution shall escape 
 out of legal custody, the sheriff, bailiff, or other person having 
 the custody of such debtor, shall be liable only to an action upon 
 the case for damages sustained by the person at whose suit such 
 debtor was imprisoned, and shall not be liable to any action of debt 
 in consequence of such escape. 
 
 Adions to recover money in the hands of the sheriff. — After a 
 return to &fi.fa. that the money is levied, the sheriff may be liable 
 to an action for money had and received without any demand of 
 payment (e). 
 
 (b) See 30 & 31 Vict. c. 142, s. 10, & f Vict c. 83 , „., « 
 ante V 555 ^*^ Dak v. Bwcli, 3 Campb. 347. See 
 
 (c) Booth V. Olive, 10 C. B. 835 ; Mte, ante, pp. 347, 348, as to the sheriff re- 
 ^ tog gg^ taining m certain cases the proceeds of a 
 
 (d) This Act is repealed by the 32 levy for fourteen days. 
 
668 PROTECTION OF HIGH BAILIFFS, ETC. [CHAP. XIV. 
 
 Actions against high lailiffs of county courts (/) and their assis- 
 tants.— By the County Courts Amendment Act, 19 & 20 Vict. 
 c. 108, s. 21, it is enacted that if an action he brought in the county 
 court against an officer of the county court, the summons may issue 
 in the district of which he is an officer, or in an adjoining district 
 (although in a different county (g) ), the judge of which is not the 
 judge of a court of which the defendant is an officer; and it has 
 been held that this section, by virtue of the operation of the 28 & 
 29 Vict. c. 99, s. 21, extends to suits in equity (h). By the County 
 Courts Act, 9 & 10 Vict. c. 95, s. 138, notice of action is, as we 
 have seen, required to be given to all persons actiiig in execution 
 of that Act (i). If the bailiff of a county court, under a warrant 
 against the goods of A, by mistake takes those of B, this is an act 
 done in pursuance of the County Courts Act, which entitles the 
 bailiff to notice of action (/<;). 
 
 Statutory protection to high hailiffs (/), and persons acting hy their 
 order, or in their aid, in the execution of county court warrants. — By 
 13 & 14 Vict. c. 61, s. 19, it is enacted, that no action shall be 
 brought against any high bailiff or bailiff, or any person acting by 
 his order, or in his aid, for anything done in obedience to any 
 warrant under the hand of the clerk of the county court and the 
 seal of the said court, until demand hath been made, or left at the 
 office of such high bailiff, by the party intending to briqg such 
 action, or by his attorney or agent, in writing, signed by the party 
 demanding the same, of the perusal and copy of the warrant, 
 and the same hath been refused or neglected for the space of six 
 days after the demand ; and in case, after demand and compliance 
 therewith, by showing the warrant, and permitting a copy to be taken, 
 any action shall' be brought against the high bailiff, bailiff, or other 
 person acting in his aid, for any such cause as aforesaid, without 
 making the clerk of the court who signed or sealed the warrant 
 defendant, then, on producing or proving the warrant at the trial 
 of the action, the jury shall give their verdict for the defendant, not- 
 withstanding any defect of jurisdiction or other irregularity in the 
 warrant ; and if the action be brought jointly against the clerk and 
 high bailiff, or bailiff, or person acting in his aid, then, on proof of the 
 warrant, the jury shall find for the high bailiff, or bailiff, or person 
 so acting as aforesaid, notwithstanding such defect or irregularity. 
 
 And by 19 & 20 Vict. c. 108, s. 60, it is further enacted, that no 
 
 (/) See 29 & 30 Vict. c. 14, s. 11, (i) As to the form of notice, see ^wrton 
 
 ante, p. 664. v. Le Oros, 34 Law J., Q. B. 91. 
 
 {g) Partridge v. ElUngton, L. E., 6 Q. (i) Bwling v. Barley, 3 H. & N. 271; 
 
 B. 82. 27 Law J., Exch. 258. As to parties 
 
 {h) Linford v. Gudgeon, L. E., 6 Oh. interfering in the execution of the pro- 
 
 App. 359. cess, see Cronahaw v. Chapman, 31 Law 
 
 J., Esch. 277. 
 
SECT. 3.] STAYING PEOCEEMNGS. 669 
 
 officer of a coimty court, in executing a warrant of a county court, 
 and no person at whose instance any such, warrant shall be exe- 
 cuted, shall be deemed a trespasser by reason of any irregularity or 
 informality in any proceeding on the validity of which such warrant 
 depends, or in the form of such warrant, or in the mode of executing 
 it, but the party aggrieved may bring an action for any special 
 damage which he may have sustained by reason of such irregularity 
 or informality against the party guilty thereof, and in such action 
 he shall recover no costs, unless the damages awarded shall exceed 
 forty shillings. Also (s. 55), that any warrant to a high bailiff, to 
 give possession of a tenement under that statyte, shall justify the 
 bailiff named in the warrant in entering upon the premises named 
 therein, with such assistants as he shall deem necessary, and in 
 giving possession ; but the entry must be made between the hours of 
 nine in the morniug and four in the afternoon, and the warrant must 
 be executed within three months from the day it bears date (s. 56). 
 
 Of the, staying of proceedings in actions against high hailiffs and ' 
 officers of the county court. — The 30 & 31 Vict. c. 142, s. 31, enacts, 
 that if any claim shall be made to goods or chattels taken in execu- 
 tion under the process of a county court, or to the proceeds or value 
 thereof by any person, it shall be lawful for the registrar of the 
 court, upon application of the high bailiff, as well before as after 
 any action brought against him, to issue a summons, calling before 
 the court as well the party issuing the process as the party 
 making the claim, and thereupon any action which may have been 
 brought in any court in respect of such claim, or of any damage 
 arising out of the execution of such process, shall be stayed ; and 
 the judge of the county court is to adjudicate upon the claim, and 
 make such order in respect thereof and of the costs as to him shall 
 seem fit. He is also to adjudicate between the parties or either of 
 them and the high baihff with respect to " any damage arising or 
 capable of arising out of the execution of such process," and the 
 costs' of the proceedings : which order is to be enforced like any 
 other order of the county court, and is to be final and conclusive 
 between such parties and the high bailiff, unless the decision of the 
 court be appealed from. 
 
 The above section is in substitution of the 118th section of the 
 9 & 10 Vict. c. 95, which is repealed, and under which it was held 
 that if the county court judge decided in favour of the bailiff, the 
 superior court in which an action had been brought against him 
 would stay all further proceedings against him in the action, unless 
 there was some substantive cause of complaint beyond that of 
 entering the house to make the seizure (Z), but that if it was 
 
 (Z) Jessop V. CTwwUy, 15 Q. B, 212. 
 
670 MISCONDUCT OF SHERIFFS, ETC. [CHAP. XIV. 
 
 decided against the bailiff, and it was found that he had entesred 
 the house and seized the goods of the wrong person, and had 
 committed a trespass by entering the house as well as by seizing 
 the goods, damages might in such a case be recovered against him 
 for the unlawful entry into the house, as well as for tha seizure of 
 the goods (m). It was further held under that section that if the 
 action was brought for an unlawful breaking and entering of the 
 outer door of a dweUing-house, as well as for an unlawful seizure 
 of the goods, the judge had no power to stay the proceedings, as no 
 damages could have been awarded to the plaintiff for the trespass to 
 the house on the he^iring of the interpleader summons as to the goods 
 before the county court («,). The first-mentioned section, however, 
 now provides that the county court judge " shall " adjudicate on 
 any claim " capable of arising out of the execution of the process." 
 The claimant, therefore, cannot subsequently sue in a superior 
 court, for any special damages arising out of the execution, although 
 he omitted to claim them in the coimty courf (o). 
 
 Plaintiffs in actions against sheriffs. — To entitle a person to sue 
 a sheriff or his officer for neglecting the, duties of his office, he 
 must show that he had sued out some process which entitled him 
 to the performance of some duty at the hands of the sheriff which 
 the latter has neglected or negligently execvited, or he must s.^iov 
 that he has been damnified either in his person or his property by 
 some act of trespass, or wrongful and unauthorized proceeding, on 
 the part of the sheriff; or if he sues upon an Act pf Parliament 
 giving damages to the party grieved, he must show that he is the 
 party grieved within the meaning of the statute (p). 
 
 Of the defendants in actions, for wrongs done under '^Imr of legal 
 process. — The sheriff and his officer, who, by inadvertence or 
 • mistake, have entered the house and seized the goods of the wrong 
 person, or have arrested a wrong pa^rty, in th^ execution of legal 
 process, are resppnsible for the trespass, "although the taking be 
 by the showing of the party to the suit " {g) ; and so are all persons, 
 whether plaintiffs, attorneys in the action, or strangers, who 
 interfere in any way, by giving directions or assistance or 
 officiously volunteering information to the officjers {ante, p^ 594); 
 for every person who procures or directs the commission of an act 
 of trespass is as much responsible fpr the injury as the person who 
 actually commits it; but a simple intimation or direction to the 
 officer that he is not to be prevented by an adverse claim from seizing 
 
 (m) Foster T. Pritchwd, 2 H. & N. 151 ; (p) Woodgate v. Knatcklvtt, 2 T, K. 
 
 26 Law J., Exch. 215. ; 158. Boyce v. Higgins, 14 C. B. 14. 
 
 (n) Cater t. Ohigndl, 15 Q. B. 219. JRoUis v. Marshall, 2 H. & N. 755. 
 
 BoUier v. Laurie, 3 C. B. 339. (q) 2 Boll. Abr. 552. Jormam v. 
 
 (o) See Death r. Sarrisorl, L. K., 6 Hooper, 7 Sc. N. E. 663; 13 Law J., C.P. 
 
 Exch. 15. 63 ; 6 M. & Gr. 848. 
 
SECT. 3.], ACTIONS— PAETIES. 671 
 
 goods found in the dwelling-house of the execution debtor, will not 
 render the person, interfering to such an extent only, responsible for 
 a wrongful seizure by the baihff (r). 
 
 Sheriffs' ofl&cers executing a writ of ca. sa. are not the agents or 
 bailiffs of the plaintiff for whos'e benefit the writ is issued ; and if 
 they arrest a wrong person, the plaintiff in the action is not 
 responsible for their misconduct, unless either he or his attorney 
 have personally interfered, and have superintended or directed the 
 movements of the sheriff or his officers (s). If 'the plaintiff in an 
 action, or his attorney, does no more than set the court in motion, 
 he is no trespasser, notwithstanding that such court should, on his 
 motion, do an act of trespass by its officers, unless by special plea 
 he admits and undertakes to justify his concurrence in the act, in 
 which case he can only inake out his justification by showing a 
 legal authority under which he acted (f) ; and an attorney who 
 merely delivers a writ of execution to the sheriff, and does not 
 take upon himseK to give wrong directions, and- does not, by word 
 or act, induce the officer to seize the \yrong person, is not 
 responsible for the mistakes of the officer and for a trespass 
 committed by the latter in seizing the goods of such person, ■ or 
 seizing beyond the limits of his bailiwick, although he believes 
 that the officer is about to go wrong and to exceed his duty (u). 
 It has been held, however, that if the attorney gives wrong 
 directions to the sheriff or his officers, and .thereby causes them to 
 seize the goods of the wrong person, the client is responsible for 
 the act of the attorney (x). 
 
 If goods which have been let to hire to an execution debtor 
 have been seized and sold by a sheriff under the writ of execution, 
 the sheriff cannot, as we have seen, be sued, unless it be proved 
 that the owner of the goods has sustained some actual damage by 
 the act of the sheriff (2/); but the purchaser who takes away the 
 goods without any right or title so to do, may be made responsible 
 in damages for the conversion of the property. If acts of trespass 
 have been committed under colour of legal process, which has been 
 set aside as irregular, both the client who commands the attorney 
 and the attorney who sues out the process are, as we have alreaidy 
 seen, responsible as principals in the commission of the acts of 
 trespass done by their procurement and commandment (s). They 
 
 (r) Cronshcm v. Chapmm, 7 H. & N. Liv. Gas. Co., 3 Ad. &_B. 433. 
 911-31 Law J., Bxoli. 277. - W ^"^^^^ '^- Champion, 6 Ad. & B. 417. 
 
 («) Wilson V. Tummon, 6 M. & Gr. 244; \x) Jwmmn v. Hooper, 6 M. &. Gr. 
 
 6 Sc N K 906. Walley v. M'Connell, 850 ; 7 So. N. B. 681. CoUett t. Foster, 
 
 13 Q B. 911. WooUm v.' Wright, 1 H. 2 H. & N. 361. Brooks v. HodgUnson, 4 
 
 & 0. 554;. 31 L'aw J., Bxch. 513. Wdt- ib. 112,1 oMe.V- 596. ^ ^ ^ ^ ^^ ^„_, 
 
 imre v. Greene, 13 M. & W. 104. iv) Fancred v. AUgood, 4 H. & N. 438; 
 
 (t) Kvnning v. Buchaman, 8 0. B. 291. 28 La-«ir J Eich. 362. , „ , ^ „ ^ 
 
 AUey T. Dale, 10 0. B. 62. Painter r. (z) Codrington v. Lloyd, 8 Ad. & E, 
 
672 MISCONDUCT OF SHERIFFS, ETC. [CHAP. XIV. 
 
 are in tlie same situation after the process has been set aside as if 
 they had themselves, orallyor by writing, desired the sheriff or his 
 officer to make the seizure (a) ; but it is otherwise if the issue of 
 the process is a judicial act, and the process is afterwards set aside, 
 not for irregularity, but for error (b). 
 
 Declaration against a sh&riff fornot executing ike Queen's writ, 
 or for an escape. — The principle on which an action is maintainable 
 against a sheriff for a neglect of duty in not arresting or in not 
 making a levy in obedience to the Queen's writ directed to him, or 
 for permitting an escape, is not simply because the plaintiff has 
 sued out a writ and delivered it to the sheriff and the sheriff 
 has not obeyed it, but because in mesne process he has a 
 cause of action, in final process he has a judgment, against the 
 defendant, which gives him an interest in the writ, and creates a 
 duty in the shetiff towards him (c). There is no duty due from the 
 sheriff to the person suing out a writ, unless he be entitled to do 
 so. It is essential, therefore, in an action against a sheriff for 
 disobeying a ca. sa. ox^&fi'.fa., that the party should show that he 
 had a judgment in his favour, or was entitled to the due execution 
 of a writ of ca. sa., under the 6th section of the 32 &; 33 Vict, 
 c. 62, &c., ante, p. 625. 
 
 Declarations against sheriffs for removing goods taken in execution 
 without paying rent due to the landlord, should show that a 
 messuage, lands or tenements, had been demised by the plaintiff to 
 a named tenant for a certain term, at a specified rent, payable 
 half-yearly ; that a certain sum of money, being half a year's or a 
 year's rent of the messuage, &c., as, the case may be, became due 
 to the plaintiff, and that during the existence of the tenancy, and 
 whilst the rent was in arrear, the defendant then being sheriff, 
 seized certain goods and chattels of the tenant, then being upon 
 the demised messuage, lands or tenements, &c., under a writ of 
 execution against the tenant ; that the defendant at -the time of 
 the seizure, and before the removal of the goods from the premises, 
 had notice of the half-year's (or year's) rent so being due and in 
 arrear (d), and that he nevertheless wrongfully removed the goods 
 before the plaintiff had been paid the said an-ears of rent, contrary 
 to the statute in that behalf made (e). 
 
 - Declarations against sheriffs for treble damages for ■ extortion 
 should set forth the recovery of the judgment ; the issue of a writ 
 
 449. SarJcer v. SraJiam, 8 Wils. 376. (d) Andfevis \. Dixon, 8 B. & Aid. 
 
 Bates T. PUlmg, 6 B. & C. 39. 645; 
 
 (a) Tindal, C.J., Wilson v. Tummm, 6 (c) 8 Anne, c. 14, s. 1, ante, p. 656. 
 
 Se. N. E. 905 ; 6 M. & Gr. 236. Griin SmaUman v. PoUm-d,.6 M. & Gr. 1009. 
 
 V. Mgie, 5 Q. B. 114. Eiseley v. Myle, 11 M. & W. 16. Thur- 
 
 (6J WilMams v. Smith, amte, p. 662. good T. Jlichardson, 7 Bing. 428. 
 Jones V. Pope, 1 Saund. 38b. 
 
 (4 
 
SECT. 3.] ACTIONS— PLEADINGS. 673 
 
 of fi. fa. to the sheriff ; the indorsement on the writ ; the delivery 
 of the writ to the defendant as sheriff of some specified county ; 
 the seizure by the defendant as sheriff; the amount of the levy ; 
 and that the defendant, by reason and colour of his oftice, 
 wrongfully received and took from the plaintiff, for the serving and 
 executing the said execution, a certain specified sum (/), averring 
 it to be a larger consideration and recompense than is limited and 
 appointed to be taken in that behalf (^). Wlien the action is 
 brought against the sheriff's officer, the declaration should set forth 
 the warrant made and delivered by the sheriff to the defendant, as 
 one of his bailiffs, to be executed, and the levy made thereunder by 
 the defendant, and the extortionate charges then made by him (h). 
 When the declaration is for extortionate charges on the execution 
 of several writs, the declaration should show what sum ought to 
 , have been taken, and what was the extortionate charge on each 
 writ (z). It is not necessary to recite the statute ; it is enough to 
 state that the thing was done contrary to the form of the statute in 
 such case made and provided Qc). 
 
 The plea of not guilty in actions against a sheriff or his officers 
 for an escape, operates as a denial of the neglect or default of the 
 sheriff or his officers, but not of the debt, judgment, or preliminary 
 proceedings (J). All matters of inducement set forth in the decla- 
 ration, if intended to be denied and put in issue by the defendant, 
 should be specially traversed (m) ; and all matters of justification 
 and excuse must, as we have seen, be specially pleaded, and cannot 
 be given in evidence under the general issue {n). 
 
 Pleas of justification must confess the assault or trespass, and 
 set forth the facts and circumstances which justified it {ante, p. 601, 
 et seq.) A good justification for an assault and imprisonment is 
 disclosed by a plea alleging, that at the time when the trespass was 
 committed the defendant was sheriff of a certain specified county, 
 and in that character was presiding at an election of knights of the 
 shire to serve for the county in parliament ; that the plaintiff made 
 a great noise and disturbance at the election, and molested and 
 obstructed him in the execution of his duty, upon which he ordered 
 a constable to take the plaintiff into custody, and to carry him before 
 a justice of the peace, to be dealt with according to law (o). 
 
 Justification in the execution of legal process.— A sheriff who 
 
 (/) AsJiby V. Emris, 2 M. & W. 678. (m) Post, ch. 21, s. 1. Traverse of the 
 
 (a) Pilkmgton v. Opohe, 16 M. & W. whole or part of a declaration. 
 
 eif; """'"^'^ ' („) Arae, pp. 367—369. Sowden v. 
 
 (A) Wrightup v. Qreenacre, 10 Q. B. 3. Stamdiah, 6 C. B. 518. Lem v. AUoch, 
 
 (i) Benon v. Lawrence, 5 Bxoh. 816. 3 M. & W. 188. Wright v. Lamson, % 
 
 (h) Holmes v. Spwrhes, 12 C. B. 251. i6. 739 ,,.,,,, ., , ^ , 
 
 (l) Keg. Gen. Hil. Term, 16 Vict. K. (o) Spilsbwry v. Miclelethwaite, 1 Taunt. 
 
 16 ; 1 Eli. & si. App. Ixixi. Eo(^es Y. 146. 
 
 Paterson, 26 Law J., Exeh. 223. 
 
 X X 
 
674 MISCONDUCT OF SHEEirFS, ETC. [CHAP. XIV. 
 
 justifies an act of trespass in the execution of a writ, does enough 
 if he sets forth the writ of execution in obedience to which he 
 acted, unless, by taking an indemnity, he has so identified himself 
 with the judgment creditor as to place himself in the same position 
 as the latter, in which case he must set forth and rely upon the 
 judgment as well as upon the writ. If the plaintiff in the action, 
 however, is not the execution debtor, but some third party suing 
 the sheriff, the latter must then show not only the writ of execution, 
 but the judgment. Therefore, where the sheriff or his bailiff sets 
 up a claim against a plaintiff, to goods taken in execution under a 
 writ against a third person, the sheriff must show a judgment 
 against such third person, and his production of the writ of 
 execution alone is not sufficient {p).; and the reason for this seems 
 to be, because the party against whom the judgment has passed 
 might have applied to set it aside if there were error attending it ; 
 and if he omit to do so, it is .presumed, from his acquiescence, that 
 the judgment is right {g). A plea of justification by a private 
 person, who has gone with the sheriff's ofiicer to make an arrest, 
 or who has personally interfered in aid of the sheriff, must show 
 the judgment as well as the writ ; the officer need show the writ 
 and warrant only, unless he joins the other party in pleading, in 
 which case he foregoes the benefit of his warrant (r). The stranger 
 must set out the proceedings at length if he justifies under them, 
 and if he does not, the plea of the officers who join with him in his 
 justification is bad (s). A plea of justification by a sheriff's officer 
 should set forth the warrant under which he acted (t). 
 
 ReplioO'tions.^WheTe a man has abused an authority or license 
 which the law gives him, by which he becomes a trespasser ah initio, 
 if the defendant pleads such license or authority, the plaintiff must 
 reply the abuse (u). Eeplications to pleas justifying under process 
 which has been set aside, usually allege that the writ imder which 
 the defendant attempts to justify was irregularly sued out of the 
 said court o"f, &c., and that afterwards, by a certain order made by, 
 &c., one of the judges, &c., bearing date, &c., and which order was 
 afterwards made a rule of court, it was upon hearing, &c., and read- 
 ing, &c.j ordered that the said writ should be set aside for irregu- 
 larity {x). The replication should show that the process was set 
 aside under such circumstances as prevent it from being a justifica- 
 tion to the defendant (^). 
 
 (f)) White V. Mmris, 11 C. B. lOlS ; (i) HewUt v. Macquire, 7 Eich. 80. 
 
 21 Law J., C. P. 185. Cotes v. MicJdU, 3 Lev. 20. 
 
 {q) Bayley, J., Doe v. Mmless, 6 M. & (u) 1 Wms. Sannd. 300h. 
 
 S. 114. (aj) Oodrington r. Lloyd, 8 Ad. & E. 
 
 (r) Andrews v. Mamis, 1 Q. B. 17. 449. Jones v. WiUiams, 8 M. & W. 357. 
 
 TwmerY. Felgate, I Jjev. 95. Scmkm y. De Medma, 2 1), &li. 81S. 
 
 (s) Morse T. James, Willes, 128. (y) Prentice v. Smrison, 4 Q. B. 852. 
 
SECT. 3.] ACTIONS — EVIDENCE. '675 
 
 Evidence at the trial — Proof on the -part of the flainti;ff. — In 
 actions against sheriffs for not arresting nrlder a ca. sa., or for not 
 making a levy under a Ji. fa., or for permitting an escape, the plain- 
 tiff must, as we have seen, prove a judgment in his favour (2), the 
 issue of a writ thereon, and the delivery of the writ to the' sheriff 
 to he executed, if those facts are traversed and put in issue by the 
 pleadings. If it appears that the plaintiff has sued but void pro- 
 cess, or that the judgment on which the process is founded is a void 
 judgment, the plaintiff has no cause of action against the sheriff for 
 neglecting to execute it, or for discharging a prisoner taken under 
 it ; hut if the judgment is erroneous only, the sheriff cannot take 
 advantage of the error (a). 
 
 Proof of Judgments, writs, and process from the sv/perior courts. — 
 The usual mode of proving a judgment of a superior court is by an 
 examined copy. The witness who produces the cbpy should prove 
 that he examined it with the original record, and that the latter 
 came from the proper Custody (&). Writs and warrants, before they 
 have been returned and have become matter of record, must be 
 proved by the actual production of the instrument itself. Notice 
 to produce the original writ, therefore, must in general be giveii to 
 the sheriff, in an action against him for a breach of duty in neglect- 
 ing to obey it. 
 
 Delivery of the writ to the sheriff to be executed. — If a writ which 
 has been delivered to the sheriff to be executed has been returned, 
 and has become matter of record, the writ and its delivery to the 
 sheriff, may be proved by an examined copy of the record, without 
 the production of the writ itself (c). 
 
 Proof that a person has acted as sheriff is primd facie evidence 
 of his being sheriff, without proof of his appointment (d). 
 
 Proof of the sheriffs having directed or authorized the commissiofi, 
 of the wrongful act. — lu order to charge the sheriff with the act of 
 the bailiff, it is not enough, as we have seen, to show that the person 
 committing the wrongful act was a sheriff's officer dul/ appointed^ 
 and apparently acting as the sheriff's officer, and that he had given 
 a bond of indemnity to the sheriff. It must be shown that he had 
 a special authority from the sheriff to do the particular act of which 
 the plaintiff complains. For this purpose the officer should be 
 called, upon a subpoena duces tecum, to produce the original 
 warrant under which he acted, which being the best evidence of 
 the fact no other can be admitted, unless it is improperly withheld 
 after notice to produce it; in which case secondary evidence may 
 
 (8) Jones V. Pope, ante, p. 672. (c) BamboUom v. SucMurst, 2 M. & S. 
 
 (a) Gold r. Strode, Garth. 148. SAvrley 565. , ^ , „ 
 
 V. Wright, Cro. Jac. 775; Bull. N. P. 66. {d) Bunhwy v. Matthews, 1 C. & K. 
 
 (6) SM V. Margkon, 1 Campb. 469 ; 380. 
 
 pott, oh. 20. 
 
 X X 2 
 
676 JPSCONDUOT OF SHERIFFS, ETC. [CHAP. XIV. 
 
 be given of its contents (e). If the warrant has heen returned by 
 the officer to the under-sheriff, notice should be given to the latter, 
 or to the attorney of the sheriff, to produce it, if the sheriff is still 
 in .office (/). If the defendant has gone out of office, and the 
 warrant has been sent to the persons who acted as his London 
 agents whUst he was in office, and who are also his attorneys on 
 the record, notice to them to produce the warrant is sufficient to 
 entitle the plaintifp to give secondary evidence of its contents (g). 
 
 On production of the warrant bearing the sheriff's seal of office, 
 it is right to presume that the seal was properly affixed, unless 
 evidence to the contrary is adduced ; and on production of the 
 sealed warrant the plaintiff establishes a primd facie case against 
 the sheriff; and if the under-sheriff improperly issued it without 
 having received a writ upon which it purports to be founded, the 
 fact must be proved by the defendant as an answer to the plain- 
 tiff's case (h). 
 
 But the production of the warrant is not the only mode by 
 which the privity of the sheriff with the act of the bailiff may be 
 established. If the sheriff takes the fruits of an arrest made, or 
 execution levied, by the officer, and ratifies and adopts the acts of 
 the latter, he wiU have recognised him as his authorized agent in 
 the particular transaction, and wiU be responsible accordingly (i). 
 If it be proved that by the ordinary course of business in the 
 under-sheriff's office the name of the officer who ie to execute the 
 writ is endoi^sed on the process, and the writ sp endorsed is returned 
 and filed, and the plaintiff offers in evidence a writ with the name 
 of a bailiff indorsed upon it, and proves that the indorsement was 
 made at the under-sheriff's office,, or was made before it got there, 
 and was afterwards adopted there, it will be primd facie evidence 
 that the person named in the indorsement was the person autho- 
 rized by the sheriff to execute the writ, for if the warrant be granted 
 to, a different officer, the sheriff has the means of proving it (Jc). 
 But the mere production of the writ and indorsement, without 
 proof that the indorsement was made in the sheriff's office, or 
 adopted by the sheriff, will not be sufficient to implicate the 
 sheriff (T). • 
 
 If upon the pleadings the defendant, as sheriff, admits his parti- 
 cipation in the act of the officer, it is of course unnecessary to 
 produce and prove the warrant (m). 
 
 (e) Drake v. Sikes, 7 T. E. 113, Min- v. Wood, 3 Campb. 228. 
 vtt V. LUyd, 2 M. & W. 458. KnatcUvU, 2,T. K. 155. 
 
 (f) Taplm\.Atty,Z'Bvag. 166. % Scott y. MwrshaU, 2 Cr. & Jerv. 
 
 (g) Suter v. BumU, 2 H. & N. 867. 242. Tetdby v. Oascoigne, 2 Stark. 202. 
 (A) Gibbins v. Philii^, 7 >B. & C. 535, (I) Hill v. Shenff of Middlesex, 7 
 
 note- Taunt. 8. 
 
 (0 Martin v. Bell, 1 Stark. 416. Jones (m) Reed v. ThoyU, 6 M. & W. 415. 
 
SECT. 3.] ACTIONS — EVIDENCE. , 677 
 
 Proof of false return to a writ. — If it be proved, that a debtor 
 whom the sheriff ought to have arrested in obedience to a writ 
 lodged in his hands, did not abscond, but continued in the daily 
 exercise of his usual occupation, or appeared publicly as usual, or 
 was to be found at his home or his usual haunts, and the sheriff 
 neglected to arrest him, and returned non est inventus to the writ, 
 there will be abundant evidence of a false return (n). 
 
 When admissions by an under-sheriff and bailiffs are evidence 
 against the sheriff. — The statements and declarations of an under- 
 sheriff are no evidence to charge the sheriff, unless they accompany 
 some of&cial act, or unless they tend to charge himself, he being 
 in truth the real party in the cause (o). What a baUiff says in a 
 general conversation with any indifferent person, certainly is not 
 evidence against the sheriff; but declarations made by him in the 
 course of the execution of a writ to parties interested in making 
 the inquiry, are evidence against the sheriff in the particular matter 
 to which they relate {p). 
 
 Proof of the removal of goods taken in execution without 'paying 
 the landlord's rent. — If the material facts of the tenancy, the rent 
 in arrear, the seizure of the goods, the defendant's knowledge of the 
 rent being in arrear, and the removal of the goods without payment 
 of it, as set forth in the plaintiff's declaration, are traversed by the 
 pleadings, the plaintiff must establish them in evidence by produc- 
 tion and proof of a written demise, where the tenant holds under a 
 writing {g), and by showing that a certain ascertained rent was 
 payable and in arrear at the time of the levy, knowledge thereof on 
 the part of the sheriff or his of&cer (r), and an actual removal of 
 ' the goods without payment of the rent (s). 
 
 Evidence of the process under which the sheriff acted. — When the 
 existence of the authority under which the sheriff acted is pjit in 
 issue by the pleadings, it is in general enough, as we have seen, to 
 prove the writ under which he acted. If the plaintiff, in order to 
 prove his case against the sheriff, puts in evidence the warrant 
 from the sheriff to his officer, he does not thereby make the recital 
 of the writ in the warrant to the sheriff evidence for the latter 
 of the writ, and dispense with the necessity of proof of it by the 
 sheriff {t). 
 
 Evidence for the defence — Proof of rent being in arrear at the time 
 
 (k) Beckford v. Montague, 2 Esp. 476. HosUns v. Knight, 1 M. & S. 245. Saun- 
 
 Brown v. Jcmns, 1 M. & W. 704. BandeU ders v. Musgrave, 6 B. & C. 524. A ndrews 
 
 V. Wheble, 10 Ad. & E. 719. v. Dixon, SB. & Aid. 645. 
 
 (o) SnowbaU v. Goodricke, 4 B. & Ad. (s) SmaUman v. Pollard, 6 M. & Gr. 
 
 543 1001. Wharton v. Naylor, 12 Q. B. 679. 
 
 (p) North V. MUes, 1 Campb. 390. (t) WhUe v. Morris, 11 C. B. 1033, 
 
 Jacobs V. Ewmphreg, 2 Or. & M. 414. overruling Bessey v. Windham, 6 Q. B. 
 
 (g) Augustien v. ChaUis, 1 Exch. 279. 166. 
 
 (r) RiseUy v. Ryle, 11 M. & W. 16. 
 
678 ^ MISCONDUCT OF SHEEIFFS, ETC. [CHAP. XIV. 
 
 of the levy.-^li the sheriff, in order to support a return of nulla bona, 
 or to defend himself against an action for negligence in not leyying 
 under a writ of fi. fa., is driven to show that rent was due to the 
 landlord, the lease itself must be produced if it appear that there 
 was a written demise (u). In an action against a sheriff for neglect- 
 ing to levy under a fi. fa., it is not enough for the sheriff to show 
 that the landlord made a claim for a year's rent, which exceeded 
 the Talue of the goods. The sheriff must prove that the rent was 
 actually due. Where the sheriff relied upon an actual payment by 
 him of rent claimed to be due to the landlord. Lord EUenborough 
 held, that if he had before him reasonable evidence of the rent 
 being in arrear, and a sight of the lease, where the debtor held 
 under a lease, there would be a primd facie case in favour of the 
 sheriff, and it would be for the plaintiff to show that the rent was 
 not due (x). If the sheriff has given notice to the execution creditor 
 of the claim of rent, and the latter assents to the proceedings of the 
 sheriff in respect thereof, he cannot of course afterwards turn round 
 and complain of what he has himself sanctioned, although both he 
 and the sheriff may have been' deceived, or have acted under a 
 misapprehension, or taken some erroneous view of the matter (y). 
 
 Proof of propeecHngs in the county court.-^The 9 & 10 Vict. c. 95, 
 s. Ill, requires the clerk of every county court to cause a note of 
 aU plaints, judgments, orders, and proceedings in the court, to be 
 fairly entered in a book to be kept at the of&ce of the court, and 
 the entries in this book, or a copy thereof, bearing the seal of the 
 court, and purporting to be signed and certified as a true copy by 
 the clerk of the court, are to be admitted in all courts as evidence 
 of such entries, and of the proceedings, and of the regularity* 
 thereof, without any further proof. 
 
 Damages recoverable in actions against sheriffs and offvcm-s — 
 Negligence and breach of duty. — Whenever it has been proved that 
 the sheriff owed a duty to the plaintiff, and that there has been a 
 breach of that duty, nominal damages are recoverable, although 
 there is no proof of any actual pecuniary damage having been 
 sustained by the plaintiff. A'VTien a debtor has been taken in 
 execution and lodged in gaol, the execution creditor has a right to 
 have him kept in gaol ; if, therefore, the sheriff allows the debtor 
 to go beyond the limits of the prison for ever so short a period, 
 there is an infringement of the legal right of the execution creditor, 
 in respect of which damages are recoverable by him, though no 
 actual damage be proved (s). So if a sheriff, having had a writ of 
 cai. sa. put into his hands, unnecessarily delays putting it in force, 
 
 (w) Augustien t. ChalUa, 1 Exch. 279. (s) WUliams v. Mostyn, 4 M. & W. 153. 
 
 (a;) KeigMey v. Bi/rdh, 3 Campb. 523. See Haines T. East Inddq, Co., 11 Moore, 
 {ij) Stuart V. Whittalcer, Ey. & M. 310. P. C. Ca. 39. 
 
SECT. 3.] ACTIONS — DAMAGES EECOVBEABLE. 679, 
 
 and there is no proof of actual pecuniary damage from tlie delay, 
 nominal damages are recoverable, for the plaintiff's right to have 
 the body of his debtor detained has been invaded through the 
 breach of duty by the sheriff. If actual loss has been sustained, 
 the plaintiff will be entitled to recover the amount of such loss (a): 
 However, the above rule does not apply to writs of f,. fa., and in 
 such cases, although primd facie the measure of damages is the 
 value of the goods which might have been taken, yet it is for the 
 jury to say under all the circumstances, whether, if the" execution 
 had been levied, the plaintiff would have derived any benefit from 
 it ; as, for instance, if the other creditors of the execution debtor 
 were in a position to make him bankrupt (h). ISTor will the plaintiff 
 in such a case be entitled to noniinal damages (6). 
 
 If the sheriff has improperly delayed the execution of a writ, 
 and the plaintiff has been put to expense in trying to have the 
 writ executed, he may be entitled to recover these expenses as part 
 of the damages (c). In an action against a sheriff for not selling 
 the execution debtor's share in chattels, in which he was jointly 
 interested with another person. Lord EUenborough said to the jury, 
 " I cannot lay down any measure for your assessment of damages 
 short of half the value. In giving any other you will take a leap 
 in the dark. Some purchasers might think the value depreciated 
 by the co-partnership, others might not[regard the circumstance "(d). 
 
 In an action against a sheriff or his officer for the wrongfiil 
 taking of goods, the plaintiff, if he recovers a verdict, -is entitled to 
 the full value of the goods. It is not competent for the sheriff to 
 say as to part of it, " I have paid tent," for, being a wrong-doer, he 
 had no right to take upon himself to apply the proceeds of the 
 wrongful sale (e). So, in an action against a sheriff for taking the 
 plaintiff's goods under process upon a regular judgment, but in a 
 place to which the process did not extend, the plaintiff is entitled 
 to recover the whole value of the goods and not merely the damage 
 he has sustained by their being taken in a wrong place (/). 
 Whenever a public officer has wrongfully seized and detained goods 
 from the owner, the latter is entitled to recover aU the loss resulting 
 from the wrongful act, so that if the property detained has fallen 
 in value in the market, the plaintiff is entitled to add the amount 
 of that to the other damage he has sustained (g). But if a sheriff 
 takes goods in execution after an act of bankruptcy, and sells them, 
 the jury may, in an action by the trustee in bankruptcy for thfe 
 
 g ffi: ;• ^Ssill l,%. B. ' ?) WMtej.Binstea,, 13 C. B.' 30a ; 
 
 „/„•' 22 Law J., C. P. Xlo. . • 
 
 (cj Mason v. Paynter, 1 Q. B. 974. (/) Sowell v. Chm^im 6A.k E. 407. 
 
 ((/) Tyler v. Leeds {Duke of), 2 Start. (g) Bm-row v. Armud, 8 Q. B. 609, 
 
680 MISCONDUCT OF SHERIFFS, ETC. [CHAP. XV. 
 
 unlawful taking, allow to the sheriff the expenses of the sale, if 
 they think the trustee must have sold the goods if they had not 
 been sold by the sheriff (h). 
 
 If a sheriff or his officer threatens to make a levy on goods 
 which belong to. the plaintiff, and the latter, in order to preVent his 
 goods from being, seized and sold, pays a sum of money to such 
 sheriff or officer, he is entitled to recover back the money on 
 proving that the sheriff had no right to make the levy or seize the 
 goods he threatened to seize (*'). 
 
 In actions for unlawfully removing goods without paying rent 
 due to the landlord, the damages recoverable by the latter are not 
 limited to the amount realised by the sheriff on the sale of the 
 goods, but the landlord may recover the actual damage sustained 
 by him by the sheriff's neglect of duty, whatever that may be (Jc). 
 
 Assessment of damages in actions for an escape. — "The true 
 measure of damages," observes Jervis, C.J., "in actions against 
 a sheriff for an escape, is the value of the custody of the debtor at 
 the moment of the escape, and no deduction can be made therefrom 
 on account of anything which the plaintiff might have obtained by 
 diligence after the escape. If the laches of the plaintiff could be 
 used to mitigate the damages against the sheriff, the plaintiff 
 would be compelled in every case to issue a fresh writ, and incur 
 expense, to relieve himself to some extent from the consequence of 
 the sheriff's negligence. It must not, however, be understood that 
 the plaintiff's conduct can, under no circumstance, have a material 
 bearing upon the damages. If he has done anything to aggravate 
 the loss occasioned by the sheriff's neglect, or has prevented the 
 sheriff from retaking the debtor, the damages would be materially 
 affected by such conduct " (I). 
 
 "The damages to be paid by the sheriff must be assessed 
 according to the circumstances of each particular case. If the 
 execution debtor had not the means of satisfying the judgment at 
 the moment of the escape, the plaintiff will have lost only the 
 security of the debtor's body, and the damages may be small." But 
 the jury may take into consideration the fact that the debtor, 
 though insolvent, is the only son of a wealthy and aged father, and 
 that the debtor's solicitor had before the arrest offered a composition 
 of six shillings in the pound ; in other words, the chance that the 
 debt or some part of it might be recovered by the pressure put upon 
 the debtor (m). 
 
 (A) Clark v. Nicholson, 6 C. & P. 712 ; (2) Arden v. Ooodacre, 11 C. B. 
 
 10.M.&B.724. See a»fe, pp. 347, 348. 375. 
 
 (i) Valpy T. Mmley, 1 C. B. 602. (m) Macrae v. ClarJc, L. K., 1 C. P. 
 
 (k) Foster T. Hdton, 1 Dowl. P. C. 38. 403 
 Cah&'t V. JoUfe, 2 B. & Ad, 421. 
 
SECT. 3.] DAMAGES EECOVBRABLE. 681 
 
 Special damages. — All special and extraordinary damage, wMch 
 is the natural and direct result of the wrongful act of which the 
 plaintiff complains, is recoverable by him if it is set forth and 
 claimed in the declaration (n). The cost of setting aside a judgment 
 for irregularity, however, cannot be made the subject of special 
 damage in an action against the plaintiff or his attorney for seizing 
 the plaintiff's goods under colour of the irregular judgment, if such 
 costs have been applied for, and refused by the court on motion (o). 
 
 Exemplary dwmages. — ^Where trespasses of a serious nature 
 have been committed by officers of the law under colour of legal 
 process, exemplary damages are recoverable. Violent and illegal 
 conduct on the part of officers charged with the execution of legal 
 process " is calculated to lead to dangerous conflicts ; and when it 
 is proved to the satisfaction of a jury to have taken place, the 
 proper amount of damages to be awarded must depend so much 
 upon the general circumstances that it is very difficult to discover 
 any standard by which to measure the amount " {p) ; and the court 
 wUl not interfere, on behalf of the sheriff or his officers, with the 
 constitutional functions of the jury in assessing the damages, 
 although it may do so, if the defendant making the application, 
 and who was jointly sued with the sheriff, was not implicated in 
 the aggravations justifying the amount of damages as against the 
 sheriff {q). 
 
 Recovery of treble damages for extortion. — If the plaintiff, in an 
 action against a sheriff for extortion, frames his declaration on the 
 statute of Elizabeth {ante, pp. 663, 672) for the recovery of treble 
 damages, the jury should be asked to assess the actual damage 
 sustained, and the finding should be entered upon the record as the 
 actual damage, so as to entitle the plaintiff to judgment for treble 
 the amount found by the jury (r). 
 
 (n) Ante, pp. 378, 609 ; post, ch. 22. (?) Gregorys. Cottrdl, 1 Ell. & Bl. 369; 
 
 (o) Loton V. Devereux, 3 B. & Ad. 22 Law J., Q. B. 217. 
 345 (r) Post, ch. 21, s. 1, Double and 
 
 (p) Brunsvdch {Duke of) v. Slowman, 8 Treble Damages. Buckle v. Bewes, 4 B. 
 
 C. B. 331. & C. 154. 
 
682 
 
 CHAPTEE XV. 
 
 OF TRESPASSES AND INJURIES COMMITTED IN EXECUTION OF 
 WARRANTS AND OKDERS OP JUSTICES— RESPONSIBILITY OS". 
 MAGISTRATES, CONSTABLES, THEIR ASSISTANTS, AND PERSONS 
 SETTING THEM IN MOTION— REMEDIES FOR WRQNGS DQNE- 
 UNDER COLOUR OF CONVICTIONS AND WARRANTS OF JUSTICES. 
 
 SlOTiON I. — Of trespasses in the execution 
 of warrants and orders of justices. — 
 Jurisdiction of justices — Summary 
 conTiction — ^Liability of justices for 
 misconduot^Search-warrants— Liabi- 
 lity of justices acting without jurisdic- 
 
 ' tion- — Tlieir exemption from actions 
 where no objection was taken to their, 
 jurisdiction — Interested justices — 
 Wrongful commitments — Summary 
 conTiotions, orders, and adjudications — 
 Unlawful proceedings without infor- 
 mation — When complaint cannot be 
 withdrawn — Ouster of jurisdiction by 
 claim of title — Exercise of discretionary 
 power — Wrongful ministerial acts^ — 
 Convictions upon by-laws — Of the 
 drawing-up of convictions and orders — 
 Disclosure of jurisdiction— Warrants 
 of distress and commitment — Power of 
 appeal — Execution of convictions and 
 orders after notice of appeal-^State» , 
 ment of a case— Quashing of convic- 
 tions and orders — Commitment for' 
 
 contempt — Removal by certiorari — 
 Proof of circumstances calling for in- 
 terference— 'Amendment of orders, &c. 
 — ^Habeas corpus — Costs ordered" by. 
 justices. 
 
 Section II. — Duties and Besponeihilities 
 of constaVles. — Exemption of constables 
 and their assistants feoin liability for 
 acts done in obedience to a warrant — ■ 
 Excess of authority on the part of con- 
 stables. 
 
 Section III. — Remedies for wrongs done 
 under colour of conmctions and warrants 
 of justices. — Replevin of chattels dis- 
 trained — Actions against" justices for 
 things done without jurisdiction, for 
 malicious convictions, commitments, 
 and distresses — Effect of the existence 
 of a power, of appeal — ^Vexatious ac- 
 tions — Satting aside actions — Limita- 
 tion of actions — Notice of action-r^ 
 Tender of amends — Parties, pleadings, 
 defences, and evidence — Damages re- 
 coverable. 
 
 SECTION I. 
 
 OF TRESPASSES AND INJURIES COMMITTED IN THE EXECUTION OF 
 WARRANTS AND ORDERS OF JUSTICES. 
 
 Of the Jurisdiction of justices of the ;peace [a). — The ancient con- 
 servators of the peace, the nature and extent of whose power and 
 authority are now unknown, were formerly elected by the freeholders 
 of the county ; but since the reign of Edward III. they have been 
 appointed by the crown. By the 34 Edw. 3, c. 1, it is enacted, 
 
 (a) See ante, p. 264. 
 
SKCT. 1.] JURISDICTION OF JUSTICES. 683 
 
 that in every county of England there shall be assigned for the 
 ieeping of the peace one lord, and with him three or four of the 
 most worthy of the county, with some learned in the law ; and 
 they shall have power to restrain offenders, rioters, and all other 
 barrators, and cause them to be imprisoned and duly punished 
 according to the law and customs of the realm ; and inform them- 
 selves of pOlors and robbers who go wandering about and will not 
 labour, and put them in prison, and take of all them that be not of 
 good fame sufficient surety and mainprize of their good behaviour, 
 and duly punish others ; and hear and determine, at the king's 
 suit, all manner of felonies and trespasses done in their several 
 counties, according to the laws and customs of the realm. From 
 this statute, therefore, it appears that justices of the peace were to 
 be appointed by commission from the crown ; that they were to 
 have authority to hold a coiirt, and were to be judges of a court of 
 record. Courts accordingly were holden by them for hearing and 
 determining offences within their cognizance ; records were kept by 
 them of their proceedings in these courts, and eaich justice named 
 in the commission came to be called custos rotulorum, or keeper of 
 the records and roUs of the county (6). 
 
 The power " to hear and determine " gave justices of the peace 
 authority oiily to hear and determine through the medium of the 
 common-law method of inquisition, by the verdict of a jury, " for 
 that is implied by law, and the court wiU adjudge as the law 
 appoints, although it be not so expressed " (c). 
 
 Hence, justices were under the necessity of holding sessions 
 and assembling juries for the trial of all offences of which they had 
 cognizance ; and these sessions were by 36 Edw. 3, stat. 1, c. 12, 
 commanded to be held at least four times a-year. Special sessions 
 were afterwards directed to be held for executing certain statutes 
 which the justices were charged to execute, and they were enjoined 
 the diligent perusal and study of these statutes at the Easter 
 sessions in every year (d). 
 
 "Where a trial or other proceeding is commenced at one sessions, 
 and is continued and concluded at another, the continuity of the 
 proceeding and the jurisdiction of the court must be preserved by 
 a formal adjournment, otherwise the proceeding is coram nonjiidice, 
 and will be a nullity (e). 
 
 The form of the commission of the peace as it exists at present, 
 is said to have been settled by the judges in the 33rd year of Queen 
 Elizabeth's reign (/). It assigns the' several persons named in it, 
 
 ill's Holt, C. J., Harcowrt v. Fox, 1 Show. (e) Hex v. West Torrirngton, Burr. S. 0. 
 
 507 293. Beg. v. Payn, 34 Law J., Q. B. 59. 
 
 (c) See Holland's case, 4 Co. 74a, 74b. (/) 2 Hawk. P. 0. c. 8, § 2. 
 ((^) 33 Hen. 8, c. 10. 
 
684 JURISDICTION OF JUSTICES. [CHAP. XV. 
 
 and every one of them jointly and severally, the queen's justices, 
 to keep the peace in a particular county, and to cause to be kept all 
 statutes made for the good of the peace and the quiet government 
 of the people ; and to punish all who offend against any of the said 
 statutes ; and to cause to come before them all who shall threaten 
 any of the people as to their persons, or the burning of their 
 houses, in order to compel them to find surety for the peace or good 
 behaviour ; and if they shall refuse, to find such surety, to cause 
 them to be safeily kept in prison till- they shall find it : also to 
 inquire, upon the oath of good and lawful men of the county, of all 
 felonies, trespasses, and offences, of which justices of the peace may 
 lawfully inquire, &c. {g). 
 
 Besides the general authority confided to justices by the com- 
 mission of the peace, they are clothed by various Acts of Parliament 
 with a special and partictdar jurisdiction over particular offences, 
 which jurisdiction must be exercised sometimes by one justice and 
 sometimes by two ; sometimes in their sessions, and sometimes 
 out of their sessions. Whenever these statutory powers are exer- 
 cised by justices, care must be taken that the special authority is 
 strictly pursued. 
 
 Every single justice has regularly a jurisdiction for the preser- 
 vation of the peace through the whole county by virtue of his 
 commission, but the power of hearing and determining offences is 
 by the commission given to two or more ; and whenever a thing is 
 required to be done by two justices, they must both be present at 
 the execution of it. A justice has no power to do any judicial act 
 out of his county, but he may do a merely ministerial act, such as 
 the taking of an information Qi). 
 
 A justice of the peace has jurisdiction to require sureties for 
 good behaviour from persons charged with aggravated defamation, 
 and with persisting in a continued course of libelling. Therefore, 
 where a person persisted in writing libel? upon a wall against a 
 private individual, and was required to find sureties for his good 
 behaviour, and in default was committed to prison, it was held that 
 the justice had acted in a matter over which he had jurisdiction (i). 
 If the charge be of an offenca over which, if the offence charged be 
 true in fact, the magistrate has jurisdiction, the magistrate's juris- 
 diction cannot be made to depend upon the truth or falsehood of 
 the facts, or upon the evidence being sufficient or insufficient to 
 establish the corpus delicti, nor can the jurisdiction be ever held to 
 depend upon the value or credibility of the evidence (/). 
 
 lurisdictidn of justices residing or being out of the county of 
 
 (g) p^t J. p. Ch 5. (t) ffayloch v. Sparke, 22 Law J., M. C. 
 
 (A) 2 Hale, P. C. 61. 72. 
 
 O') Cave V. Mountain, 1 M. & Gr. 262. 
 
SECT. 1.] SUMMARY CONVICTION. 685 
 
 which they are Jiistices. — A justice of the peace for one county, 
 riding, division, liberty, city, borough, or place may act for the same 
 whilst residing, or being in an adjoining county, riding, &c., of 
 -which he is also a justice ; and a justice of the peace for any 
 county at large, riding, division, or liberty, may act as such within 
 any city, town, or precinct next adjoining thereto, or surrounded 
 thereby, being a county of itself, or otherwise having exclusive 
 jurisdiction (k). 
 
 Jurisdiction of Bm^ough justices under the Municipal Corporation 
 Act.—Bj s. Ill of 5 & 6 Wm. 4, c. 76, county justices have 
 concurrent jurisdiction with borough justices in boroughs which 
 have not received the gxant of a separate court of quarter sessions 
 
 All offences committed within any borough against the provi- 
 sions of any local Act of Parliament are cognizable by the justices of 
 the borough, and such justices possess aU the powers and jurisdiction 
 with respect to such offences which were formerly possessed by 
 county justices (f). These, and all other offences punishable in 
 boroughs upon summary conviction, must be prosecuted in con- 
 formity with the provisions of the statutes regulating the proceedings 
 of justices {post, p. 694, et seq.) ; but the prosecution for the offence 
 must be commenced within three calendar months (m), and any 
 person who thinks himself aggrieved by the summary Conviction 
 may appeal to the court of quarter session for the borough or the 
 county (n). 
 
 The power of summary conviction of offenders by justices without 
 the intervention of a jury is entirely the creature of the statute law. 
 No such power is accorded to them by the common law. " In very, 
 early times such a power appears to have been conferred upon them 
 in . two, cases, which seemed in their nature to require a speedy 
 interference ; but even in these it was confined to their own view. 
 These are the cases of forcible entries, 12 Eic. 2, c. 2, and of riots, 
 13 Hen. 4, c. 7 j in the latter of which, it may be remarked, this 
 extraordinary jurisdiction is carefully limited by the urgency of the 
 occasion, by which alone, therefore, it was probably thought to be 
 justified; for it is there directed, that if the rioters had departed 
 before the arrival of the justices, so that the view could not be had. 
 they are then to inquire of the matter, not by themselves, but by 
 means of a jury, which they are specially directed in that case to 
 summon. One other instance also occurs of a power to convict 
 without jury, and that was on confession of the party, viz., by the 
 Act of 2 Hen. 5, st. 1, c. 4, relating to labourers, which authorized 
 them to examine labourers, &c., on their oath, and on their confession 
 
 (h) 11 & 12 Vict. c. 42; 11 & 12 Viot. (m) 5 & 6 Wm. 4, c. 76, s. 127 ; 11 & 
 
 c. 48, ss. 6, 35 ; 26 & 27 Vict. c. 77. 12 Vict. c. 43, s. 11. 
 
 {I) 7 Wm. 4 & 1 Vict. c. 78, s. 31. (m) 5 & 6 Wm. 4, c. 76, s. 131, ' 
 
686 MISCONDUCT OF JUSl'ICES. [CHAP. XV. 
 
 to punish them as if they were convict ly inqusst. These two cases 
 of view and confession seem to be the only clear instances in which 
 justices of the peace were empowered in those early times to inflict 
 punishinent upon their own inquiry and judgnient " (o). 
 
 " The earliest statute upon which a summary conviction by a 
 justice is on record, or of which a precedent is found in the books, 
 is that of 33 Hen. 8, c. 6, against the practice of carrying daggs or 
 short guns. Lambard has given a precedent of a conviction upon 
 this statute (p), and there appears to have been one removed into 
 the Court of Queen's Bench by certiorari as early as the 43fd year 
 of Elizabeth, A.D. 1600 ; and this v^ry case affords a proof of the 
 objection, which, in the state of manners at that day, might well 
 exist, against relaxing the jealousy of the common law by intrusting 
 anything like arbitrary authority in private hands" (q). 
 
 Until recently justices of the peace had no power to convict 
 summarily for felony, but by 18 & 19 Vict. c. 126, power is given 
 to justices of the peace assembled at petty sessions to hear and 
 determine charges of larceny in a summary way, without the inter- 
 vention of a jury, where the value of the property stolen does 
 not in the judgment of such justices exceed 5s., and the person 
 charged consents to have the case heard and determined by such 
 justices. * 
 
 Liability of justices for misconduct in the exercise of their judicial 
 functions.— A justice of the peace who acts corruptly in the dis- 
 charge of the duties of his office, and uses the power of the law for 
 the purpose of injuring and op|)ressing those over whom he has 
 authority, and gratifying his own private animosity, is responsible 
 in damages to the parties injured ; but it must be proved that he 
 has acted wrongfully from personal motives of spite or iU-will, or, 
 in legal parlance, that he "has acted maliciously, and without 
 reasonable and probable cause," for he cannot be made responsible 
 for an erroneous judgment, or for mere mistakes, or for ignorance, 
 negligence, or misconduct, not amounting to an abuse of his 
 authority (r). 
 
 Of the granting of search-warrants hy magistrates. — Upon a 
 representation to a magistrate that a person has reason to suspect 
 that his property has been stolen and is concealed in some specified 
 place, the magistrate may lawfully issue his warrant to search the 
 place and to bring the occupier or owner before him. It need not 
 .be a positive and direct averment upon oath that the goods are 
 stolen, in order to justify the magistrate in granting his warrant. 
 
 (o) Paley on Svunmary Convictions, (g) Paley, vt ivp., pp. 10, 11. 
 
 introd., pp. 5, 6, 5th gd. (r) Pease v. Ohaytor, 32 Law J., M. 0. 
 
 {p) Lambard's Justice, p. 298. 121 ; pott, e. 2. 
 
SECT. 1.] ACTS DONE WITHOUT JUKISDICTION. 687 
 
 If a warrant is issued without due authority on the part of the 
 magistrate, and a house is entered and searched under it, that is a 
 trespass on the part of the magistrate. And if a person goes before 
 a magistrate and falsely and maliciously, and without reasonable 
 and probable cause, makes such a representation to a magistrate as 
 induces him to grant a search-warrant, the person so acting is 
 responsible in damages in an action for a malicious prosecution (s). 
 The. power of a justice to grant a search-warrant is now extended 
 to property in, or near, or with respect to which, any offence, 
 punishable either upon indictment or summary conviction by virtue 
 of the Criminal Law Consolidation Act (24 & 25 Vict. c. 96), has 
 been committed (t). 
 
 Liability/ of justices for acts done by them without jurisdiction, or 
 in excess of their jiorisdiction. — If magistrates, while occupying the 
 bench from which magisterial business is usually administered, 
 publicly disseminate slanders under the pretence of giving advice, 
 they are no more privileged than if they were illiterate mechanics 
 assembled in an alehouse {u). If a magistrate convicts an accused 
 person of an oifence without having any jurisdiction in the matter, 
 and then proceeds to sign and issue a warrant of commitment or 
 distress, under which an imprisonment is effected or goods are 
 seized, the conviction may be removed into the Court of Queen's 
 Bench and quashed by certiorari, and an action may then, and not 
 before, be commenced against the magistrate (jpost, s. 2), to recover 
 damages for the wrong done. Similar proceedings may be taken 
 against him where he has exceeded his jurisdiction, and done more 
 than he was authorized by law to do. 
 
 Uxenvption of justices from actions in cases where they had aprimd, 
 facie jwisdiction; and no objection was taken to their jurisdiction 
 until after they had adjudicated.— li, under the special powers of 
 particidar Acts of Parliament, justices have a primd facie juris- 
 diction to inquire into and adjudicate upon certain matters that 
 have been brought before them, and nothing appears, either on one 
 side or the other, to show any want of jurisdiction, they are exempt 
 from liability in respect of their proceedings in the matter (x)i 
 Thus, where an Act of Parliament gave certain magistrates a 
 general jurisdiction over disputes between certain friendly societies 
 and their members, excepting where the rules of the society 
 contained an arbitration clause, and certain disputes were brought 
 before a magistrate, who adjudicated thereon in ignorance of the 
 
 , («) Shee V. SmUh, Wyatt v. White, omte, Levy, Ell. Bl. & EU. 554; 27 Law J., Q. B. 
 
 % 24 & 25 Viot^ Q.' 96, s. 103. See 32 (x) Calder t. Halkett,Z Moore.P. C. C. 
 
 & 33 Vict. c. 12, s. 10; c. 57, s. 6. 68. PeMB v. Ohaytor, 32 Law J., M. C. 
 
 (u) LA. Campbell, O.J., in Lems v. 121. 
 
688 MISCONDUCT OP JUSTICES. . [CHAP. XV, 
 
 existence of the arbitration clause in the rules of the society, which 
 deprived him of jurisdiction, it was held that he was not responsible 
 for his want of jurisdiction. " "^en a party," it was observed by 
 the court, "relies on an exception from a general law, the burthen 
 is on him to show that his case falls within the exception ; and if 
 the society had produced before the magistrate the clause in their 
 rules enabling them to refer their disputes to arbitration, the 
 magistrate would have had an opportunity of judging whether he 
 had any jurisdiction or not : but they omitted to do this, and 
 the magistrate's attention was never called to the denial of his 
 jurisdiction " (y). 
 
 So, if a person be exempted from serving a particular office, 
 and, on being called before a magistrate to show cause why he 
 refuses to do so, if he do not inform the magistrate of the particular 
 ground of his exemption, he cannot maintain an action against the 
 magistrate who orders proceedings to be taken against him in 
 .consequence of such refusal (j(). 
 
 In a case that arose on the 20 Geo. 2, c. 19, giving magistrates 
 jurisdiction to determine differences between masters and servants 
 in husbandry, and other labourers, respecting wages {a), it was held 
 that an action of trespass woiild not lie against magistrates, acting 
 upon a complaint made to them on oath, by the terms of which it 
 appeared that they had jurisdiction, although the real facts of the 
 case might not have supported such complaint, if such facts were 
 not laid before them at the time by the party complained against, 
 he having notice of such complaint, and being duly summoned to 
 attend. " The facts stated in the case," observes Lord EHenborough, 
 "are not stated as facts appearing before the magistrates at the 
 time, and, in order for the plaintiff to avail himself of them, it 
 should have appeared that the same facts were stated to the 
 magistrates before whom he had notice to appear; for how, 
 otherwise, could the magistrates be affected as trespassers, if the 
 facts stated to them upon oath by the complainant were facts 
 whereof they had jurisdiction to inquire, and nothing appeared in 
 answer to contradict the first statement " ? (b). 
 
 Wrmvgfid proceedings, iy justices interested in the matter before 
 them. — A justice of the peace ought never to execute his office in 
 his own case, or in any case in which he is himself personally 
 interested (c), but must cause the offender to be carried before some 
 other justice. " And therefore the Mayor of Hereford was laid by 
 the heels for sitting in judgment where he himself was the 
 
 Qy) Pike v. CwrUr, 10 Moore, 376. (5) Lmther v. Radnor (Sari of\ 8 
 
 (a) Best, C.J., 10 Moore, 386. East, 113. 
 
 (a) See 30 & 31 Vict. c. 141, continued (c) Seg. v. Allen, 33 Law J., M. C. 98. 
 
 by 31 & 32 Viet. c. 111. Rex y. Boieaton, li East, 608. 
 
SECT. l.J INTERESTED JUSTICES. 689( 
 
 complainant, though, by the charter, he was the sole judge of the 
 court" (c^, And where a justice of the peace, being also a 
 surveyor of highways, joined in making an order at the sessions in 
 a matter which concerned his office, the court quashed the order (e). 
 So, where a churchwarden, being also a magistrate, made a 
 complaint of the chargeability of a pauper and then adjudicated 
 in his character of magistrate upon his own complaint as church- 
 warden and made an order of removal, the court quashed the 
 order (/). A justice of the peace rated to the poor-rate has been 
 held incompetent to make an order for the removal of a pauper 
 from his own parish on the ground of interest (^i). But the 16 
 Geo. 2, c. 18, enables justices within their jurisdiction to do all acts 
 appertaining to their office as justices relating to the laws for the 
 relief, &c., of the poor, notwithstanding they are rated to or 
 chargeable with poor-rate, &c., but no such justice is (s. 3) to act in 
 the determination of any appeal to the quarter-sessions from any 
 order relating to the place where he is taxed or chargeable. 
 
 But where magistrates are acting strictly in the discharge of a 
 public duty in ordering a prosecution to be instituted and have no 
 private object to serve, they are not disqualified from adjudicating 
 upon the prosecution or complaint which they have themselves 
 directed to be preferred Qu). A somewhat analogous case is where 
 they have directed a charge to be brought against the clerk of the 
 peace for misdemeaning himself in his office (withia 1 W. & M. 
 c. 21, s. 6), and have themselves heard the charge and dismissed 
 the clerk (*). And in cases where a contempt of court is supposed 
 to have been committed it becomes the unfortunate duty of the 
 court to act both as party and judge, and to decide whether it has 
 been treated with contempt {k). Therefore, where words are spoken 
 in the presence and hearing of a justice of the peace reilecting 
 upon him in the execution of hi? office ; if he is to his face called 
 a rogue and a liar, the justice may make himself both party and 
 judge, and punish the offender immediately©. So, if he be 
 assaulted, he may at once commit the offender for trial ; or if 
 he be abused to his face in the execution of his office, he may 
 commit the party until he finds sureties for his good behaviour (m). 
 If, however, the magistrate himself begins a breach of the peace, 
 he forfeits the protection of the law in the execution of his 
 office [n). , 
 
 (d) Per Holt, C.J., Anon. 1 Salk. 396. (») Wildes t. Sussett, L. E., 1 C. P. 
 
 (e) FoxhamTithmg case, 2 Saii.. 601. 722. - _, - . ^ „^,, 
 f) Bex V. at. Ym-mmth, 6 B. & C. (Tc) Ld. Denman J., in Cm-rn Wd- 
 
 ■' ' snn.s r.n.sp.. 7 Q. B. 1015. 
 
 son 
 
 ^% Mx V. Gt. Clm-t, Burr. S. C 194 ; f)Rexj. Revel,l Str 421. 
 
 2 Str. 1173. And see Sex y. Gudndge, 5 m) Dalt. Just. o. 173. 
 
 B & C 459 ^"^ ^' '^2''"°"*' C!*' Temp. Hard- 
 
 ■(A) Pettimangin, Ex pmte, 33 Law J., wioke, 240. 
 M, 0. 99 n. 
 
690 TEESPASS BY JUSTICES. [CHAP. XV- 
 
 Although any direct pecuniary interest, however small, in the 
 subject of inquiry disqualifies a person from acting as judge, the , 
 mere possibility of bias in favour of one of the parties will not 
 have that effect. Where, therefore, two justices after due inquiry 
 gave a certificate that a certain reservoir had been completed by the 
 corporation of a borough, which certificate was necessary before the 
 corporation could compulsorily take water to fill the reservoir, and 
 the effect of such certificate thus necessarily improved the 
 corporation property as a security for money borrowed, and a 
 hospital of which the justices were trustees had lent money on the 
 security of such property, it was held that the interest of such 
 justices, as trustees only, was not sufficiently direct to invalidate 
 their certificate (o). And if the magistrate has no interest in 
 the matter at the time that the order is made, the fact that he 
 subsequently becomes interested will not invalidate the order {p). 
 
 By 30 & 31 Vict. c. 115, a justice is not incapable of acting on 
 the trial of an offence under a statute to be put into execution by a 
 municipal corporation, local board of health, improvement commis- 
 sioners, trustees, or any other local authority, by reason only of his 
 being one of several ratepayers or other class of persons liable, in 
 common with others, to be benefited by any fund, to which the 
 penalty payable for such offence is to be carried, being thereby 
 increased, or to contribute to any rate, &c., in diminution of which 
 such penalty will go. 
 
 If the magistrate, being disqualified by interest or .otherwise, 
 remains on the bench and takes any part at all in the proceedings, 
 his presence wUl vitiate them (g). If he remains he should give a 
 public notice that he is there merely as a spectator and wiLL not 
 take any part in the adjudication of the matter (r). 
 
 Wrcmgful commitment and imprisonment hy justices. — A magis- 
 trate is not at liberty to detain a Itnown person to answer a charge 
 not yet made against him; he ought to have an information 
 regularly before him {post, p. 693), that he may be able to judge 
 whether it charges. any offence which the person ought to answer. 
 It may be otherwise in the case of a mere vagabond, who, if he 
 were once allowed to depart from the presence of the magistrate, 
 would, probably, never be seen again (s). 
 
 In an action against a magistrate for an assault and false 
 imprisonment, it appeared that the plaintiff had been summoned, 
 and had appeared before the magistrate to answer a complaint of 
 
 (o) Reg. V. Rand, L. E., 1 Q. B. 230. M. C. 169. Reg. t. Hertfmdshwe Justices, 
 
 See Reg. v. Manch. and SJieff. Rail. Co., 6 Q. B. 756. 
 
 cmte, p. 642. (r) Reg. v. Herefordshire Justices, 2 D. 
 
 (p) Reg. T. Surrey Justices, 21 Law J., & L. 500 n. 
 
 M. C. 198. (s). Per Ld. Tenterden, C.J., Rex v. 
 
 (q) Reg. v. Suffolk Justices, 21 Law J., Birnie, 1 Mood. & E. 160 ; 5 C. & P. 206. 
 
SECT. l.J FOEM OF COMMITMENT. 691 
 
 having unlawfully killed a dog ; that the magistrate proposed an 
 arrangement which was rejected by the plaintiff, upon' which the 
 magistrate told him that, unless he paid a certain sum of money, 
 he should convict him in a penalty of that amount, and commit 
 'him to prison ; that he then called in a constable, and ordered him 
 to take the plaintiff outside, and if the matter was not settled to 
 bring him in again, when he would proceed to commit him ; and 
 that the plaintiff then went out with the constable and settled the 
 affair by paying a sum of money. It was held that the magistrate 
 was guilty of an assault and false imprisonment, and was respon- 
 sible in damages, as there was no evidence of any conviction, and 
 he had no right to give the plaintiff into the hands of a constable, 
 in order to drive him into a settlement of the complaint (t). 
 
 When constables have arrested a man, and are taking him 
 before a magistrate for the purpose of inquiring into a charge, it is 
 not competent for a magistrate who meets them in the street to 
 otder the constables to take the man back to gaol, and keep him in 
 prison. " It is a magistrate's duty," observes Patteson, J., " on all 
 occasions, either to examine into a charge, or, if there is a reason 
 why he cannot examine into it, he is not to interfere at all, and he 
 should let the constable take the party before some other magis- 
 trate. It would be a very fearful thing, indeed, if any magistrate 
 is at liberty, meeting a man in custody of the constables in the 
 street, to say, ' Take him back for twenty-four hours, and bring him 
 up to-morrow ' " («). 
 
 Acts of a justice of the peace who has not duly qualified are not 
 absolutely void; and, therefore, persons seizing goods under a 
 warrant of distress, signed by a justice who has not taken the 
 oaths at the general sessions, nor delivered in the certificate 
 required, are not trespassers. Many persons acting as justices of 
 the peace in virtue of offices of corporations, have been ousted of 
 their ofiBices from some defect in their election or appointment; 
 and although all acts, properly corporate and official, done by such 
 persons are void, yet acts done by them as justices, or in a judicial 
 character, have in no one instance been thought invalid {x). 
 
 Of the form of commitment. — A commitment by way of punish- 
 ment, by word of mouth only, without warrant in writing, cannot 
 be supported {y). The commitment should be in writing, under 
 the hand and seal of the justice by whom it is made, and should 
 set forth his office and authority on the face of it, and the time 
 and place at which it is made ; also the cause of the commitment, 
 and the period of the imprisonment. A commitment for an 
 
 (t) Bridgett v. Coyney, 1 M. & Ky. {x) The Mwrgaie, Pier Company \. ffan- 
 
 215 nam, 3 B. & Aid. 271 . 
 
 {u)- Edwards v. Ferris, 7 C. & P. 542. (y) Maykew v, Looke, 7 Taunt. 69. 
 
 Y Y 2 
 
692 COMMITMENTS BY JUSTICES. [OHAP. XV 
 
 indefinite period cannot be supported (z). It need not be immedi- 
 ately made out; the detention of the person during the time 
 necessarily required to make it out would be justifiable, but it 
 should be made out as soon as possible. A commitment is in no 
 "respect like a conviction, which is only an entering on parchment 
 the proceedings of a court which have already taken place, like 
 recording a judgment (a). 
 
 "Statutory forms of warrants of commitment are given by 11 & 
 12 Vict. c. 42, and it is enacted (ss. 9, 10), that no objection shall 
 be taken or allowed to any summons or warrant against a party 
 accused for any defect therein in substance or in form, or for any 
 variance between it an(| the evidence adduced on the part of the 
 prosecution before the justice who has taken the examination of 
 the witnesses ; but if any such variance shall appear to the justice 
 to have deceived or misled the accused, the justice, at the request 
 of the party charged, may adjourn the hearing to some future day, 
 and in the meantime remand the accused, or admit him to bail. 
 
 Commitment hy justices of accused persons for trial — EoaamiriM- 
 tion of the witnesses. — By 11 & 12 "Vict. c. 42, s. 17, it is enacted, 
 that in aU cases where any person shall appear or be brought before 
 any justice of the peace, charged with any indictable offence, the 
 justice, before he commits the accused person for trial, or admits 
 him to bail, shall, in the presence of such accused person, who is 
 to be at liberty to put questions to any witnesses produced against 
 him, take the statement on oath or affirmation of those who know 
 the facts and circumstances of the case, and shall put the same 
 into writing, and such depositions shall be read over to, and signed 
 respectively by, the witnesses who shall have been so examined, 
 and also by the justice or justices taking the same, and shall after- 
 wards be delivered to the proper -officer of the court in which the 
 trial is to be had(s. 20) ; and before the first sitting of the court 
 at which the person committed Or^bailed is to be tried, such person 
 shall be entitled to have, frora the officer or person having custody 
 of the same, copies of the depositions on which he shall have been 
 committed or bailed, on payment of a reasonable sum (s. 27). If 
 the depositions when taken contain no charge of any indictable 
 offence, oral evidence given before the justice, but not contained 
 in the depositions, cannot be brought in aid of the depositions, to 
 support the proceedings of the magistrate, and establish a valid 
 information and the requisite jurisdiction (&). 
 
 Effect of the defpositions being taken in the absence of the magis- 
 trate who acts upon them. — Every magistrate taking the depositions 
 
 (sV Prickett t. Qratrix, 8 Q. B. 1029. • (5) Lawrenson v. HUl, 10 Ir. Com. Law 
 
 (a) Hvichinson v. Lowndes, 4 B. & Ad. Eep. 185. It has been held, howerer, in 
 
 121. icariz-T. PaiWci, 15 Q. B. 274. an action for a malicious pfosecution, 
 
SECT. 1.] STIMMAEY CONVICTIONS. 693 
 
 on oath of the party making the charge has a discretion to exercise ; 
 he is to examine the witness, hear his answers, and judge of the 
 manner in which they are given, and to determine in many cases 
 whether bail can or shall be taken. If, therefore, the depositions 
 are taken by the magistrate's clerk in the absence of the magis- 
 trate, and the magistrate proceeds to act upon depositions so taken, 
 he acts entirely without jurisdiction : there is no proper charge, 
 before him, and if he directs the imprisonment of the person 
 accused by them he is responsible for a trespass (c). 
 
 The magistrate is not answerable for the correctness of the 
 charge, or for any erroneous judgment of his own upon the facts. 
 " The only question is, whether the magistrate hacl jurisdiction tq 
 investigate and commit " (d). 
 
 Convictions by magistrates on their own view. — ^A conviction 
 before a justice or justices of the peace, without the intervention 
 of a jury, is always, as we have seen, under some statute, the 
 common law sanctioning no such proceeding. It is regarded by 
 the courts with no particular favour, and it is necessary that the 
 justice should, on the record of it, show that he has proceeded recto 
 ordine (e). In some cases, and under particular Acts of Parliament, 
 a summary remedy is provided, as we have seen, for particular 
 •offences, hj enabling a magistrate to convict and punish upon his 
 own view of the commission of the offence, without making^ any 
 iaquiry upon oath or taking any iaformation (/). The record of 
 the proceedings in such cases need only set forth such circumstances 
 as were necessary to give the magistrate jurisdiction, and show that 
 he pursued the directions of the statute (g). 
 
 Summary convictions founded wpon informations. — When the 
 magistrate has not been authorized by statute to act upon his own 
 view, he must have some information or complaint before him in 
 order to give him jurisdiction in the matter. He may have juris- 
 diction over the offence, in the abstract, but to give him jurisdiction 
 in any particular case over a particular individual, there must be 
 a proper charge or information before him Qi). If, therefore, he 
 grants a warrant Against a person upon a supposed charge of 
 felony, without taking any deposition or information on oath, and 
 
 that oral evidence is admissible to add to But the writing must be produced, to see 
 
 or explain the examination of the defen- what it contains, before questions can bo 
 
 dant before a magistrate, though the asked respecting matters which it does 
 
 examination was taken down in writing, not contain. 
 
 and that anvthing the defendant may (c) Caudle v. Seymour, 1 Q. B. 892. 
 
 have said as "part of his information be- (d) MUls v. CoUelt, 6 Bing. 92. Wind- 
 
 yond what was put into writing may be ham, v. Clere. Cro. Eliz. 130 ; 1 Leon. 187. 
 proved. Venafra v. Johnson, 1 M. & Kob. (e) 1 Smith's L. C, note to Orepps v. 
 
 316, for "what a party says is evidence Dv/rden, 6th ed. 
 against himself whether another person (/) Jones v. Owen, 2 D. & P,. 602. 
 
 took it down or not." Alderson, B., in (g) Basten v. C(wew, 3 B. & C. 649. 
 
 Robinson v. Yaughton, 8 0. & P. 255. (A) Caudle v. Seymour, 1 Q. B. 892. 
 
694 TRESPASS BY JUSTICES. [CHAP. XV. 
 
 the party is arrested under the warrant, this is a trespass, for which 
 an action may forthwith be maintained against such justice for 
 compensation in damages (t). So, if he makes an order for the 
 removal of a pauper, without having before him a complaint by the 
 parish officers of the chargeability of such pauper to the removing 
 parish, he acts whoUy without jurisdiction in the matter, and is a 
 trespasser (k). 
 
 Statutory provisions respecting summary convictions and orders of 
 justices. — By 11 & 12 Vict. c. 43, s. 1, it is enacted, that in all cases 
 where an information shall be laid before one or more of Her 
 Majesty's justices of the peace for any county, riding, division, 
 liberty, city, borough, or place, that any person has committed, or 
 is suspected to have committed, any offence or act within the 
 jurisdiction of such justice, &c., for which he is liable, upon sum- 
 mary conviction, to be imprisoned or fined, or otherwise punished, 
 and also in all cases where a complaint shall be made to any such 
 justice, &o., upon which he has authority to make any order for 
 payment of money, it shall be lawful for the justice, &c., to issue 
 his summons, stating shortly the matter of the information and 
 complaint, and req[uiring the accused party to appear and answer, 
 and be further dealt with, in manner therein provided. 
 
 Begmsites of the information or complaint. — By s. 8 it is further 
 enacted, that in all cases of complaints upon which a justice of 
 the peace may make an order for the payment of money or other- 
 wise (Z), 'it shall not be necessary for the complaint to be in writing, 
 unless it shall be required to be so by some particular Act of 
 Parliament upon which it is framed ; and (s. 10) that every 
 complaint upon which a justice of the peace is authorized by law 
 to make an order, and every information for any offence or act 
 punishable upon summary conviction, unless some particular Act 
 of Parliament shall otherwise require, may be made or laid without 
 any oath or affirmation being made of the truth thereof, except in 
 cases of informations, where the justice receiving the same shall 
 thereupon issue his warrant in the first instance to apprehend the 
 defendant ; and in every such case the matter of such information 
 shall be substantiated by the oath or affirmation of the informant, 
 or by some witness on his behalf, before any warrant shall be 
 issued. 
 
 Every such complaint must be for one matter of complaint 
 only and every such information for one offence only, and every 
 complaint or information may be laid or made by the complainant 
 or informant in person, or by his counsel or attorney, or other 
 ■person authorized in that behalf ; and must disclose upon the face 
 
 (t) Morgom v. Hughes, 2 T. K. 225. 807. 
 
 fjc) Reg. T. Justices of Bricks, 3 Q. B. (t) See Sweetman v. Giiest, post, p. 695. 
 
SECT. 1.] PROCEEDINGS UPON INFORMATION. 695 
 
 of it some offence, neglect, or default, into which the magistrate has 
 authority to iaquire, and respecting which he has jurisdiction to 
 adjudicate (m). 
 
 When a warrant is intended to he issued on the strength of the 
 information, the iaformation must, in order to give the justice 
 jurisdiction in the matter, disclose a complaint ahout something 
 that the justice has authority to inquire iuto and adjudicate 
 upon, and the facts necessary to show jurisdiction must be 
 substantiated on oath. An information on oath laid before a 
 magistrate, charging an offence within his cognizance, is sufficient 
 to , give the magistrate jurisdiction over the charge and the person 
 charged, although the information does not disclose any legal 
 evidence of the guilt of the prisoner, and states nothing beyond 
 mere hearsay, upon which neither judges nor juries could properly 
 act. The commitment by the magistrate of a person to gaol upon 
 the strength of such an information amounts at the utmost to no 
 more than an error in judgment on the part of the magistrate, for 
 which, if acting within his jurisdiction, he is not liable (n). But 
 the information must impute a criminal offence within the juris- 
 diction of the magistrate, and not a mere civil wrong, in respect of 
 which he has no jurisdiction (o). 
 
 Of the time within which the information or complaint must he 
 laid. — By s. 11, it is further enacted, that in all cases where no 
 time is specially limited for making or laying any such complaint 
 or information, such complaint or information shall be laid within 
 six calendar months from the time when the matter of such 
 complaint or information arose. This limitation as to time being 
 entirely distinct from the enactment creating the offence, and there 
 being a prima facie jurisdiction, until it is shown that the period of 
 limitation had expired at the time of the laying the information, 
 the limitation need not be noticed, and it need not be shown on the 
 face of the proceedings that they had been originated within the 
 appointed period. "AU that is matter of defence, and need not be 
 noticed in the conviction "(i?). "Such" complaint refers to the 
 provisions of s. 8, and is limited to cases mentioned in that section, 
 viz., orders for the payment of money. It does not, therefore, refer 
 to warrants of distress for non-payment of rates (q). 
 
 Proceedings upon information or complaint. — By the same statute, 
 provision is made for the service of the summons and for the 
 proof of service thereof, and (s. 2) for the issue of a warrant for the 
 ajlprehension of the party summoned in case of his non-appearance, 
 
 (m) Lawrenson v. BiU, 10 Jr. Com. (o) Lawrenson v. Hill, supra. 
 
 Law Eep. 185. Reg- v. Scotton, 5 Q. B. (p) Wray v. Tolce,12 Q. J3. 507. 
 
 -499. Perham, In re, 5 H. & N. 30. (?) Sweetman v. Guest, L. E., 3 Q. B. 
 
 In) Cave v. Mountain, 1 M. & Gr. 257. 262. 
 
g^g INFOKMATION BEFOKE JUSTICES. [OHAP. XV. 
 
 according to the exigency of the summons ; and also for the issue, 
 in the fif st instance, in certain cases, of a warrant for apprehending 
 the person against whom the information has been laid, and 
 ]>i;inging him up to answer thereto, and to be dealt with accprding 
 to law. Power is also given to justices under various statutes to 
 issue summonses, and, in default of appearance, warrants, for the 
 apprehension of material witnesses (r), and to issue warrants for 
 the apprehension of parties who have been duly, summoned to 
 appear before them, and have failed to appear according to the 
 exigency of the summons (s). 
 
 Where the statute creating the offence directs the issue of a 
 summons, and gives the party summoned a certain time to appear 
 and plead, there will lae a clear want of jurisdiction, if the justices 
 proceed tq hear the complaint before the expiration of the fuU 
 period allowed (t). 
 
 There must be some evidence before the magistrate of the 
 commission of the particular offence charged in the information or 
 complaint in prdpr to justify a convic|;ion upon it (u). 
 
 If a person is simimoned before a magistrate for an offence imder 
 a particular statute, and appears to auswer the charge stated in 
 the summons, he cannot be lawfully convicted on a charge, although 
 an analogous one, under a different statute (v) ; nor, if the evidence 
 fails to substantiate the particular charge specified in the summons, 
 can the summons be altered or amended so as to alter the nature of 
 the offence origiually charged, and to answer which the party has 
 appeared (w) ; a magistrate cannot justify a cominitment for one 
 offence by a conviction for another and different offence (x) ; 
 but if the accused party or his attorney appears before the 
 magistirate and cross-examines the witnessses, and makes no 
 objection to his proceeding until after thp case for the prosecution 
 has closed, he cannot then object to the hearing and adjudication 
 on the ground that no information had been laid, or that the 
 accused had not been duly summoned to answer the particular 
 charge (y). Magistrates cannot give themselves jurisdiction by 
 voluntarily shutting their eyes to one part of the charge and adapt- 
 ing it to a charge of some other offence, for the purpose of giving 
 themselves jurisdiction («). Every accused person must of course 
 be heard in his own defence before he can lawfully be convicted (a). 
 
 (r) 11 & 12 Vict. c."42, s. 16 ; 11 & 12 (w) Mcurtin y. Pridgeon, 1 Ell. & EU. 
 
 Vict. c. 43, s. 7. 778 ; 28 Law J., M. C. 179. 
 
 (s) 24 & 25 Vict. c. 97, S. 62 ; 11 & 12 (x) Rogers T. Jones, 3 B. & C. 412. 
 
 Vict. c. 43, s. 13. ' {y) Tvmer v. Postmaster-Qm., 34 Law 
 
 (t) Mitchell V. Foster, 12 Ad. & E. 475. J., M. C. 11. 
 
 (a) KirHn v. JenUns, 32 Law J., M. 0. .(») Thompson, In re, 6 H. & N. 193 ; 
 
 141. Sheriom v. Wells, 3 B. & S. 784. 30 Law J.,m. C. 19. 
 
 Evans v. Botterill, ib. 787. (a) Cooper t. WandswoHh Board, &c. 
 
 (v) Seg. V. Brkhhall, 33 Law J., M. C. 32 Law J., C. P. 185 ; post, cli. 23. 
 156. 
 
SECT. l.J CONVICTIONS IN EXCESS OF JURISDICTION. 697 
 
 Unlawful proceedings of justices when there is no information or 
 complaint before them. — Magistrates have no jurisdiction to convict 
 summarily and impose a fine for an assault, when it is an established 
 fact that a complainant before them does not complain of the assault, 
 and does not intend to give them jurisdiction to deal with it. 
 Therefore, where a person who had been assaulted went before 
 magistrates to have the assaulting party bound over to keep the • 
 peace, and the magistrates, finding that an assault had been 
 committed, proceeded to deal with the assault by summary 
 conviction, notwithstanding a protest by the complainant against 
 their deciding on the assault, it was held that the justices had 
 acted without anyjurisdiction in the matter, the assault not having 
 been brought before them with a view to their adjudicating upon 
 it, and a rule for a certiorari to remove and quash the conviction 
 was made absolute, in order that the conviction might be no bar to 
 ulterior proceedings by indictment or by action (5). 
 
 When a complaint once made cannot be settled and withdrawn. — 
 Where, however, a complaint of any crime or misdemeanour, or 
 other statutory offence, has been duly laid before a magistrate, it 
 does not rest with the complainant himself to abandon the charge, 
 or to proceed further with the prosecution. Thus, where a complaint 
 of an assault was duly laid before justices, and a summons issued 
 for the appearance of the defendant, and the defendant went and 
 settled the matter -with the complainant by paying him a sum of 
 money, and the complainant told one of the justices that the affair 
 was settled, and that he did not intend to prosecute, but the justices 
 nevertheless issued warrants for the apprehension of the parties, and 
 compelled the complainant under the exigency of a warrant to 
 appear and give evidence, and, then convicted the defendant, it 
 was held that the justices had not exceeded their authority, for the 
 original complaint gave them jurisdiction in the matter, and the 
 coinplaint having been made before them, they were justified in 
 exercising aU the powers vested in them by law for the purpose of 
 enabling them to investigatfe it, and adjudicate upon it ; and that 
 it was not competent to the complainant to deprive them of 
 jlirisdiction by settling the matter with the accused party (c). 
 
 Convictions by justices in excess of their jurisdiction. — Where 
 there is no evidence at aU before justices of the facts necessary to 
 give them jurisdiction, they cannot lawfully adjudicate or convict {d). 
 Where the nature of the offence is such that it can only be committed 
 once on the same day by the same person, and the magistrate pro- 
 ceeds to hear and convict, he is functus officio, and has no power to 
 
 (6) Reg. v. Deny, 20 Law J., M. C. {d) Reg. v. Johmon, 34 Law J., M. C. 
 
 189 ; 2 L. M. & P. 230. 86. 
 
 (c) Reg. T. HawUns, 2 N.'E. 62. 
 
698 JURISDICTION OF JUSTICES. [CHAP. XV. 
 
 entertain or adjudicate upon a charge of a second offence on the 
 same day hy the same person. Thus, where a magistrate convicted 
 a baker in four separate penalties for exercising his ordinary calling 
 by baking rolls on a Sunday, and there were four separate con- 
 victions for selling four rolls, upon which the magistrate issued four 
 distress-warrants, it was held that the magistrate,, afteif he had 
 convicted the baker in the first penalty, had no jurisdiction to 
 convict him again for the same offence on the same day. "The 
 Act of Parliament," observes Lord Mansfield, " gives authority to the 
 justice to punish a man for exercising his ordinary calling on a 
 Sunday. The justice exercises his jurisdiction by convicting him 
 in the penalty for so doing. But then he has proceeded to convict 
 him for three other similar offences on the same day. Now, if 
 there are four convictions for one and the same offence, committed 
 on one and the same day, three of them must necessarily be bad"(e). 
 So, e converso, a single conviction for several distinct offences is 
 bad, and if a distress issue to levy the penalty imposed, trespass 
 win lie against the justices (/). But the swearing a profane curse 
 several times repeated may constitute one offence only, although 
 it subjects the swearer to a cumulative penalty of a' certain sum for 
 each oath (ff). 
 
 Ouster of the jurisdiction of justices hy setting wp a claim of title. 
 — ^Whenever a criminal statute authorizes justices to punish 
 trespassers on land, a wilful trespass is intended, and not an entry 
 on land in the hond fide assertion of some legal right or title. 
 Whenever, therefore, in sumnaary proceedings before magistrates, a 
 bond fide claim of title to real property, or to the possession of 
 some incorporeal right or privilege over land, is set up before 
 justices by a defendant in answer to some complaint of- trespass, 
 the jurisdiction of the justices in the matter is ousted, and the 
 information or complaint ought to be dismissed (h). But the 
 complaint ought not to be dismissed on the strength of the mere 
 assertion of the claim, for it is the duty of the justices to inquire 
 into the circumstances, and ascertain whether there is any plausible 
 or colourable ground for the claim, and whether the act was done 
 in the bond fide exercise of what the defendant supposed to be his 
 right in the matter (i). When the defendant sets up some pretended 
 right, which is unknown to ihe law, or some impossible claim, the 
 title to property cannot be said to come in question. Thus, where 
 
 (c) Crepps V. Burden, Oowp. 465. (i) Heg. v. Dodson, 9 Ad. & E. 712 ; 
 
 (/) Newmam, v. Sendyshe, 10 A. & E. Morden t. Porter, 7 C. B., N. S. 641. 
 
 11- Seg. V. Cridlcmd, ut sup. Zeggv. Pa/rdoe, 
 
 (g) Reg. v. Scott, 33 Law J., M. C. 15. 30 Law J., M. C. 108. Leatt v. Vine i* 
 
 (A) Seg. T. Cridland, 7 Ell. & Bl. 867 ; 207. Eiimfidd v. Newman, 4 C. B., N s' 
 
 27 Law J., M. C. 28. R. v, Bumaby, 2 418. 
 Ld. Baym. 900. 
 
SECT. 1.] CLAIM OF TITLE. 699 
 
 a man, in answer to an information under the Game Act, set up a 
 right of shooting in gross, which he alleged he had acquired by a 
 forty years' user as of right, it was held that the justices were right 
 in disregarding the claim, as the acquisition of sucTi an easement in 
 gross was an impossibility in point of law (j). The mere belief of 
 the party himseK that he has the right he asserts is not sufficient, 
 uuder the Trespass in Pursuance of Game Act (1 & 2 Wm. 4, c. 32, 
 s. 30), or the Larceny Consolidation Act (24 & 25 Vict. c. 96, s. 24), 
 to oust the justices of their jurisdiction, as it might under the 
 Malicious Trespass Act (k). Whenever a question of title is raised 
 before them, and there is fair and reasonable evidence in support of 
 it, the justices ought not to proceed, for they cannot themselves 
 decide whether the claim is well or ill-founded in fact, although, if 
 it can have no foundation in law, they may disregard it as above 
 stated. "Whenever a real question is raised between the parties as 
 to the right, the justices ought not to convict (l). 
 
 Upon a question of highway arising before justices under the 
 Highway Act, no matter of title comes in question, although the 
 information or complaint is laid against the owner of the land who 
 disputes the existence of a highway across his land (m). 
 
 The jurisdiction of justices, under the 1 & 2 Vict. c. 74, for 
 facilitating the recovery of possession, by landlords, of premises 
 held over by tenants, after the due determination of their tenancy, 
 cannot be ousted by the tenant's setting up the title of some third 
 party, under whom he claims to hold, for as soon as the tenancy is 
 proved to the satisfaction of the justice, the tenant is estopped 
 from disputing the title of his landlord, and no question of title 
 can be raised between them (n). 
 
 Justices cannot, of course, give themselves jurisdiction by 
 erroneously and capriciously deciding contrary to the truth upon 
 the question upon which their jurisdiction depends (o). " Justices 
 cannot give themselves jurisdiction by finding that as a fact which 
 is not the fact" (p). Where, therefore, their jurisdiction depends 
 upon whether the objection to the validity, of a rate be londfide or 
 not, if there are facts beforfe the justices tending to show that the 
 objection is not lond fide, the justices are not responsible for an 
 erroneous judgment upon those facts {cj), but there must be some 
 reasonable ground before them to warrant them in coming to that 
 
 (^■) CornweU v. Sanders, 32 Law J., M, (m) Williams v. Adrnns, 31 Law J., M. 
 
 C. 6. Budson v. Mac Bae, 33 Law. J., C. 109. 
 
 M C 65 • 4 B. & S. 585. See Simpson (m) Rees v. Dames, 4 C. B., N. S. 56. 
 
 WelU, L. E., 7 Q. B. 214. (o) Reg. v. Nunndey, 27 LawJ., M. C. 
 
 {k) CornweU v. Sanders, Hudson v. 261. 
 
 Mac Rae, ut iwp. (P) Lawrence, J., in Wdch v. Nash, 8 
 
 il) Beg. T. Stimpson, 4 B. & S. 307; 32 East, 403. 
 
 Law J., M. C. 209. («) R^- v. Blachburn, 32 LawJ., M. C. 
 
 41. 
 
700 DISCRETIONARY POWER OF JUSTICES. [CHAP. XV. 
 
 conclusion ; if there is no such evidence, they act wholly without 
 jurisdiction, and may become liable in trespass for their acts (r). 
 "Whenever the defendant, however, submits his case and objections 
 to the decision of the magistrates, and invites them to decide upon 
 them, and makes no objection to their jurisdiction until after they 
 have heard and adjudicated, he is estopppd from afterwards objecting 
 to their decision, and the proceedings taken thereon (s). 
 
 To what extent a justice of the, peace is protected .in the exercise 
 of a discretionary power. — "Where justices have a discretionary 
 power they must make a fair and reasonable use of their discretion, 
 and cannot refuse to act, and decline performance of a duty 
 imposed upon them, because they think the operation of an Act of 
 Parliamei]|.t unjust. "Where, therefore, justices were empowered 
 tq issue a distress-warrant, " if they should think fit," and cir- 
 pumstances were established showing it to be their duty to issue 
 their warrant, but they declined to do so because they thought 
 the law unjust, the court made a rule absolute against them, with 
 cpsts (t). 
 
 By 11 & 12 "Vict. c. 44, s. 4, it is enacted, that in all cases where 
 a discretionary power shall be given to a justice of the peace by 
 any Act of ParUanient, no action shall be brought against siich 
 justice for, or by reason of, the manner in which he shall have 
 exercised his discretion in the execution of any such power. But 
 for the justice to secure his exemption under this section, it is 
 essential that he should be clothed with a legal authority to do the 
 act concerning which he exercises his discretion. If he has no 
 jurisdiction in the naatter, he has no valid discretionary power, and 
 is not within the exemption. The magistrate, moreover, must be 
 acting judicially in the exercise of his discretion, for if he is merely 
 determining upon the propriety or expediency of performing some 
 mere ministerial function, and makes a wrong exercise of Jiis 
 discretion by doing what he has no legal authority to do, he cannot 
 claim the statutory exemption. "Where magistrates, for example, 
 exercise their discretion as to the granting or withholding a distressr 
 warrant to enforce payment of a rate, the existence of a valid rate 
 and a legal liability to pay on the part of the person distrained 
 upon, are essential to the inagistrate's exemption from liability, 
 unless the rate is a poor-rate, and they can shelter themselves 
 under that part of s. 4 of 11 & 12 Vict. c. 44, which expressly 
 
 (r) Pease y. Clw/ytor, 1 B. & S. 658; of which all compulsory prooeedings are 
 
 31 Law J., M. 0. 1 ; 32 ib. 121. Reg. v. abolished by 31 & 32 Vict. o. 109 unless 
 
 Huntsworth, 33 Law J., M. C. 131, post, they have been made under a statutable 
 
 s. 2. authority. See Rvppin v. Bastin, L. E., 
 
 (s) Reg. v. Salop, 29 Law J., M. C. 39. 2 Adm. & Ecel. 386. 
 
 All the above, except Wdch v. Nash, are (t) Reg. v. Boteler, 33 Law J M C 
 
 cases of church rates, for the enforcement 10]. '' 
 
SECT, l.j WRONGFUL MINISTERIAL ACTS. 701 
 
 exempts justices from actions in respect of the issue of warrants of 
 distress for poor-rate againsi; persons not liable to pay the rate 
 {post, p. 709) {u). So when the discretion exercised by the magis- 
 trate respects the issuing of a distress-warrant to enforce the 
 payment of money ordered to be paid by some third person, the 
 validity of the order, and the legal liability to pay the money, are a 
 preliminary condition to the magistrate's having any authority to 
 act at all in the matter {oo). 
 
 Wrongful ministerial acts by magistrates may render them liable 
 to an action of trespass, although they may have had the power of 
 hearing and determining on the facts necessary to empower them 
 to do the ministerial act, and have exercised their judgment upon 
 such facts prior to the performance of the ministerial act. Thus, 
 where an Act of Parliament empowered the owners, occupiers, &c., 
 of abbey -lands to make a rate for certain purpose^ upon the owners 
 of such lands, and provided, that if any owner who had been rated 
 should neglect or refuse to pay the rate after demand, then, upon 
 proof thereof before a justice, the same should be levied by distress, 
 the defaulter having been first duly summoned to appear and show 
 cause for his neglect or refusal, and the plaintiff being rated, and 
 refusing to pay, was summoned before the defendant, and denied 
 his liability, but failed to show cause for his refusal to the satisfac- 
 tion of the defendant, who issued a distress-warrant, under which 
 the plaintift's goods were seized, and the plaintiff then brought his 
 action for a wrongful seizure, and proved that his land was not 
 abbey-land, and that he was not liable to be rated, and recovered 
 damages, it was held that the defendant could not shelter himself 
 from liability on the ground that he was acting judicially when 
 inquiring into, and determining upon, the facts made preliminary 
 to the issue of the warrant. The statute, it was observed, gave the 
 defendant no power to try the question of the plaintiff's claim from 
 exemption from the rate, on the ground that his land was not abbey- 
 land, or to inquire into the validity of the rate, or to adjudicate 
 upon the liability to pay. He was directed to begin by inquiring 
 whether the rated owner had refused to pay, not whether the rate 
 was valid, and his inquiry and determination had reference to the 
 discharge of a mere ministerial function, and were not of a judicial 
 character (y). 
 
 So, where an Act of Parliament, 2 & 3 Vict. c. 84, s. 11, provided 
 that, when any contribution from overseers of moneys required by a 
 board of guardians should be in arrear, it should be lawful for 
 
 (u) PedUy t. Davis, 30 Law J„ C. P. (y) PeiUey v. Daw, awpra. May, Ex 
 
 ^^Y "^ " parte, 2 B. & S. 426 ; 31 Law J., M. 0. 
 
 (x) Newboidd r. Ooltman, 6 Bxch. 201; 161. Reg. t. Higgimon, 2 B. & S. 471. 
 
 20 Law J., M. C. 149. See anU, p. 637. Pease v. Chaytor, awpra. 
 
702 TRESPASS BY JUSTICES. [CHAP. XV. 
 
 justices, to summon the overseers to show cause, &c., and, after 
 having heard the complaint, &c., to issue their distress-warrant for 
 the recovery of such contribution, and, a distress-warrant having 
 been issued under the above section, the overseers brought an action 
 of trespass against the justices, it was held that, as the statute did 
 not require any conviction, or order, or act of adjudication at all, but 
 simply a warrant of distress for the levying of the sums legally due, 
 the justices; in hearing and deciding upon the facts which were to 
 guide them in the exercise of their discretion as to the issue or 
 refusal of the warrant, were not acting in the discharge of any 
 judicial functions, but were exercising their discretion respecting 
 the performance of a mere ministerial duty, and that a valid order 
 from the board of guardians, and a legal liability to pay on the part 
 of the overseers, were essential to give the magistrates jurisdiction 
 to aet at aU in the matter (2). 
 
 Convictions upon hy-laws. — If a corporation or a local board 
 exceed their powers in making a by-law, a justice exceeds his 
 power in convicting upon it ; and the allowance of the by-law by 
 the Secretary of State does not prevent the Court of Queen's Bench 
 from granting a certiorari for the purpose of bringing up and 
 quashing the conviction (a). If the validity of a by-law, and the 
 jurisdiction of a justice to convict upon it, depend upon the exist- 
 ence or non-existence of a particular fact, the justice cannot give 
 himself jurisdiction by finding the existence of the fact, unless 
 there is reasonable evidence before him to support his finding. It 
 is open to the person convicted to show by affidavit that there was 
 no evidence before the justice on which he was warrianted in 
 coming to the conclusion that the by-law was valid, and that he 
 had authority to enforce it, because it shows that the justice has 
 exceeded his jurisdiction (&). And if, upon the facts proved before 
 the justice, and the circumstances under which the conviction 
 took place, it appears either that the justice did not determine 
 upon the validity of the by-law, but thought himself bound to 
 enforce it whether valid or invalid, and the by-law is invalid, or if 
 it appears that the justice came to a wrong conclusion in point of 
 law in determining that the facts before him gave him jurisdiction, 
 the court will correct his mistake and quash the conviction, for the 
 " magistrate has no power to hear at all, or to convict, except in the 
 case of a valid by-law " (c). But if there are facts before the justice 
 warranting him in coming to the conclusion that he had jurisdiction 
 in the matter, and he adjudicates accordingly, his decision cannot 
 
 (z) Newbould v. OoUman, 6 Exch. 189 ; v. Dickenson, 26 Law J., M. C. 204. 
 20 Law J., M. C. 149. (c) Campbell, C.J., and Crompton, J., 
 
 (a) Reg. v. Wood, 5 Ell. & BI. 49. Beg. v. Wood, 5 Ell. & BI. 57, 58. 
 \b) Bailey's case, 3 EU. & BI. 618. Reg. 
 
SECT. 1.] DRAWING UP CONVICTIOIT. 703 
 
 be impugned on the ground thg,t there were other facts before him 
 from which he ought to have drawn a contrary conclusion (d). 
 
 It is suf&cient to support a conviction for a penalty under a by- 
 law made by a railway company pursuant to the Eailway Clauses 
 Consolidation Act, 8 & 9 Vict. c. 20 (ss. 108 — 111) to prove that a 
 copy of the by-laws was af&xed at the stations where the defendant 
 entered and where he left the train, although the 110th section 
 directs that they shall be hung up at " every wharf or station," &c., 
 and that no penalty shall be recoverable unless they shall have 
 been "kept published in manner aforesaid" (e). Such by-laws 
 are public documents within the meaning of the 14 and 15 Vict., 
 c. 99, s. 14, and therefore provable by certified copy under that 
 Act (e). 
 
 Of the dra-iving-up of convictions and orders (/). — If the justice 
 or justices convict or make an order against the defendant, a minute 
 or memorandum thereof must then be made (11. & 12 Vict. c. 43, s. 
 14), and the conviction or order afterwards drawn up in form, and 
 lodged with the clerk of the peace, to be filed among the records of 
 the quarter-sessions. Any omission by the clerk of the justices to 
 perform this duty may render the justices liable to have proceed- 
 ings taken against them (g). The conviction may be drawn up in 
 form at a future time, after it has been acted upon, and may then 
 be exhibited to authenticate the proceeding and protect the magis- 
 trate Qi). 
 
 Disclosure of the authority and jwrisdiction of justices on the face 
 of their proceedings. — " In the case of special authorities given by 
 statute to justices or others acting out of the ordinary course of the 
 common law, the instruments by which they act, whether warrants 
 to arrest, commitments, or orders, or convictions or inquisitions, 
 ought, according to the course of the decisions, to show their autho- 
 rity on the face of them, by direct averment or reasonable intend- 
 ment. Not so the process of the superior courts, acting by the au- 
 thority of the common law" (i). Every order of justices, therefore, 
 should show on the face of it a complaint and an adjudication 
 thereon (J). "1 think," observes Coleridge, J., "that the rule is a 
 good rule, and that it is right that the jurisdiction of a judge with 
 limited powers should be shown upon the face of his proceedings ; 
 and if this is not done, it would not be known that the matter was 
 coram non judice, and it is not fitting that jurisdiction should be 
 established one way or the other by parol evidence " (k). 
 
 (d) Bailey's case, gwpra. {K) Massey v. Johnston, 12 East, 81. 
 
 (e^ Motteram v. Bast. Co. Rail., 7 0. B., (i) Gosset v. Howa/rd, 10 Q. B. 453. 
 
 N. S. 58; 29. Law J., M. C. 59. (j) Ldbalmmdiere t. Frost, 1 Ell. & 
 
 (/) See ante, p. 696. ~ Ell. 527. Lindsay t. LeigK, 11 Q. B. 466. 
 
 (q) HoMward, In re, 3 B. & S. 546 ; 32 , {k) Reg. v. St. George, Bhomsbury, 24 
 
 Law J., M. a 89. Law J., M. C. 49. 
 
704 WEONGFUL CONVICTIONS. [CHAP. XV. 
 
 Description of the oJ'eV'Ce o?" suiject-matter of complaint. — The 
 nature of the offence concerning which the justice is to inquire and 
 determine must be correctly stated, in order to show that the justice 
 has jurisdiction over it. It should be described in the wbrds of the 
 statute creating it (l). Where an Act of Parliament made the wilful 
 misapplication of parish money by a relieving officer a penal offence, 
 to be iuquired into and adjudicated upon by justices, and the in- 
 formation charged merely a misapplication of the ;parish moneys 
 not saying that it was wilful, it was held that it did not charge any 
 -offence cognizable by the justices, and that the conviction founded 
 upon it could not be supported (m). And where an Act of Parlia- 
 ment made it a penal offence, cognizable by justices, to expose for 
 sale metal buttons marked gilt, " knowing the same not to be gilt 
 with gold or plated with silver," and the information charged the 
 act to have been done fraudulently and unlawfully; without saying 
 " knowingly," it was held that there was no offence charged of which 
 the justices had authority to take cognizance (n). 
 
 A description, in the corLviction, of the offence, in the ternis of , 
 the Act creating it, where it appears from the whole tenor and scope 
 of the Act that more is necessary to be proved by the evidence in 
 order to constitute the offence than is stated in express terms upon 
 the face of the statute, is not a sufiBcient description (o). Where a 
 statute enacted "that ho conviction on this Act shall be set aside by 
 any court for want of form, or through the mistake of any fact,, cir- 
 cumstance, or other matter whatsoever, provided the material facts 
 alleged in such conviction, and upon which the same shall be 
 grounded, be proved to the satisfaction of the court," Lord Kenyoh 
 declared that he could understand the enactment so far as it re- 
 garded the proceedings before courts of quarter sessions on appeal, 
 but not as applied to proceedings removed into the Court of King's 
 Bench. " On an appeal," observes his lordship, " the whole case is 
 to be gone into ; evidence is to be given to support the conviction, 
 and then it may be known whether or not* the material facts alleged 
 in such conviction, and upon which the same shall be grounded, be 
 proved to the satisfaction of that court : but when the conviction is 
 removed here by certiorari, I do not understand how we can inquire 
 into those facts. The great question here is, whether or not the 
 material facts to constitute the offence be alleged in the convic- 
 tion"(^). 
 
 Of singling out the offender. — Although it is, generally speaking, 
 sufficient, in describing an offence in a conviction, to follow the 
 
 (J) Rex V. Speed, 1 Ld. Eaym. 583. (n) Rex v. Jukes, 8 T. E. 536. 
 
 'ndth, Ex'poKrU, '2.1 Law J., M. 0. 186. lo) Fletcher v. CaUhorp, 6 Q. I 
 
 (m) Cwrpenter v. Masori, 12 Ad. & B. (p) Rex v. Juhes, 8 T. B. 540. 
 
SECT, l.j VOEM OF CONVICTIONS. 705 
 
 words of the Act creating the offence, yet it is always necessary to 
 add such facts as show that the person convicted was a party to the 
 offence so described (q). The conviction must single out the offender, 
 and specify him by name, and therefore a conviction of " Harrison 
 and Company" is a nullity, even against the party named. "We 
 cannot tell upon the face of "such a proceeding whether the delin- 
 quency of Harrison's partners who are not before the court may 
 not have been imputed to him" (r). If the conviction convicts the 
 offender of one or other of two offences in the alternative, it is bad (s). 
 
 Bescription of the locality of the offence. — It is a geiieral rule, 
 that all judicial acts exercised by persons whose judicial authority 
 is limited as to locality must appear to. be done within the locality 
 to which the authority is limited. Justices, therefore, acting jiidi- 
 cially, must appear to be acting in their jurisdiction, as well as for 
 it ; and those cases which seem at first sight to afford some ground 
 for a different opinion, wUl be found on examination to be aU cases 
 in which the act done might be valid, though in point of fact done 
 out of the jurisdiction {t). It is not sufficient to describe the jus-, 
 tices as justices in the county, nor as justices for the county ; but 
 if they are described as doing the act as "justices in and for the 
 county," that will suffice. " For," observes WiUiams, J., describes 
 the authority, "in" the place, in which the justices were when they^ 
 made the order {u). 
 
 In convictions, the place for which the magistrates act rnust be 
 shown, the offence must be set out, and either it must appear that 
 the offence was committed within the limits for which the convict- 
 ing magistrates are appointed, or facts must be stated which give 
 them jurisdiction beyond those limits {x). It is not suflicient to 
 affirm that the offence was committed within a locality over which 
 they had jurisdiction as justices, without naming it {y). Even where 
 justices followed a form of conviction prescribed by statute, which 
 form did not set forth the place where the offence was committed, 
 it was nevertheless held that the conviction was bad for not show- 
 ing that the offence was committed at some place within the county 
 of which they were justices {z). It is not in all cases sufficient, 
 therefore, to follow a form given by statute (a). 
 
 Where a statute directs an act to be done by justices acting for 
 the division, any justice of the county acting within the division is 
 for this purpose a justice of the division (6). 
 
 (a) Chaney v. Payne, \ Q. B. 721. («) Reg. v. Slochton 7 Q. B. 527. 
 
 Ir) Bex V. Hmrison, 8 T. E. 508. (») Kite and Lanes case, 1 B. & C. 
 
 (s) Rex V. Morley, 1 Y. & J. 221. Rex 104. Rex v. EdMoirds, 1 East, 278. R. 
 
 V. iVbrtA, 6 D. & R. 146. See anie, p. 696, CAamd/er, 14 i6. 274. 
 and Morris v. Ogden, L. E., 4 C. P. 687 ; iy) Rex v. Johnson 1 Sir 261. 
 
 38 Law J., C. P. 329. 2) Rj='^' f{<^l' J3 |*^*;i"- 
 
 (t) Reg. T. Totness, 11 Q. B. 90. Reg. (a) Re Peerless, 1 Q B. l.';2. 
 
 V. Orman, 14 ib. 221. (^) R- ^- P^^<^> Cald. 305 n. 
 
 V. 
 
706 JUBISDICTION OF JUSTICES. [CHAP. XV. 
 
 Orders and adjudications ly justices must show upon the face of 
 them that the justice had jurisdiction to make the order. " How- 
 ever high the authority may be, where a special statutory power is 
 exercised, the person who acts must take care to bring himself 
 within the terms of the statute. Whether the order be made by 
 the Lord Chancellor or by a justice of the peace, the facts which 
 gave the authority must be stated" (c). An order of justices under 
 11 Geo. 2, c. 19, s. 4, adjudging a person to pay double the value 
 of goods fraudulently removed to prevent a distress, must show on 
 the face of it that the person removing the goods was the tenant, 
 and that the complainant was his landlord, or the bailiff, agent, or 
 servant of such landlord, as otherwise it is not made to appear that 
 the magistrates had any jurisdiction to make the order {d). There 
 must be a distinct finding on the face of the order by the magis- 
 trates of aU the facts necessary to constitute the offence, and to 
 give the justices authority to deal with it (e). An order of justices, 
 therefore, was quashed because it did not appear on the face of it 
 that they were justices of the county or for the county, but only 
 thatthey were residing in the county (/). 
 
 The mention of the name of the county in the margin of the 
 instrument only proves that it was made by the justices for that 
 county, but does not show that the act to which it relates was com- 
 mitted in -the county {g) ; nor does it show that the justices were 
 acting within the county at the time they made the order {h), unless 
 the marginal note of the county is incorporated into the body of 
 the order by words of reference, and the whole when read together 
 shows upon the face of it that the justices making the order were 
 justices of or for the county, and that they made it in the county. 
 Where an order of justices was headed " Westmoreland to wit," 
 and the justices were described in the body of the order as justices 
 of the peace " in and for the said county," it was held that this 
 could mean no other county than the county stated in the margin ; 
 that the reference to it made it part of the order, and that it suffi- 
 ciently appeared that the order, was made in the county by justices 
 for the county {%). But where one county was named in the margin 
 of the order and another in the body of it, and the justices omitted 
 to state of which county they were justices, it was held that the 
 jurisdiction was not shown, and that the order was bad {k). It is 
 not sufficient to place the name of a county or of a borough in the 
 margin of the order, and to state in the body of it that the order is 
 
 (c) Coleridge, J., Christie v. Vnwin, 11 (g) Sex t. Austin, 8 Mod. 310. 
 
 Ad. & E. 379. (h) Reg. v. ;S*. George, Sloomsbv/ry, 24 
 
 (d) Sex V. Davis, 5 B. & Ad. 554. Law J., M. C. 49. 
 
 (e) Day t. King, 5 Ad. & E. 366. (i) Seg. v. Casterton, 6 Q.B. .';i2. 
 
 (f) Rex T. Doibyn, 2 Salk. 474. (k) Sex v. Moor Critc/iell, 2 East, 66. 
 
S^<^T- 1- FOEM OF CONVICTIONS. 707 
 
 made by justices having jurisdiction within and for the said county 
 , or borough, without stating or showing that the order itself was 
 made by them within the county or the borough for which they 
 were justices (I). 
 
 If a conviction and order, and adjudication thereupon made, are 
 so worded as to impose ti larger obligation than is imposed by the 
 statute authorizing them, the conviction and order cannot be sup- 
 ported. A conviction, therefore, of several defendants, making each 
 of them liable to be imprisoned imtil he has paid a penalty, and 
 the costs and expenses of conveying not only himself but the other 
 persons convicted to gaol, will be bad, unless the statute on which 
 the conviction is founded expressly renders all the defendants liable 
 to be imprisoned until the costs of conveying all to gaol have been 
 paid (m). 
 
 Statutory forms of convictions and orders are given by 11 & 12 
 Vict. c. 43, s. 17. These forms begin with a marginal note of the 
 county ; and they record that on a certain day and year vAthin the 
 said county the offending party was convicted before the undersigned 
 justices of the peace for the said county ; they state the nature of 
 the offence, the time and place when and where it was committed, 
 and the adjudication and order thereupon made. In stating the 
 offence, care must be taken to show that the offence or act is within 
 the cognizance or jurisdiction of the justice who makes the convic- 
 tion or order, and that the offence created by the statute upon 
 which the proceedings are founded has been committed (m). The 
 forms given by these statutes dispense with the necessity of setting 
 out the information, the summoning of the defendant, the fact of 
 his appearance or non-appearance, the evidence adduced against 
 him, and the various details previously considered necessary to 
 show that the magistrates proceeded recto ordine (o). " If justices 
 substantially adopt the forms given by the statute, they do all that 
 is required of them " {p). See ante, p. 705. 
 
 Immateriality of mere sv/rphcsage. — If proceedings before magis- 
 trates correctly describe the offence, and show when and where it 
 was committed, and that the magistrate had jurisdiction over it, 
 and over the individual charged with it, and contain all that is 
 prescribed by statute to make them valid, they are not rendered 
 invalid because they set out the information, the summons, the 
 defendant's appearance, the examinations of the witnesses, and a 
 host of particulars which are not now required to be stated or set 
 forth on the face of the proceedings. Where a particular form is 
 
 28 
 
 (I) Reg. V. Newton Ferrers, 9 Q. B. 32. (») Reg. v. /o^fflson 8 Q. B. 106. 
 
 m) Reg. v. Oridh,nd, 27 Law J., M. 0. \o) Wra.y v. Tohe, 12 Q. B 492 
 
 ^ ' '' (^) AUMon, In re, 10 Bxch. 568. 
 
 z z 2 
 
708 FORM OF DISTRESS AND COMMITMENT. [CHAP. XV. 
 
 required by statute, and the form actually used contains all that 
 the statute requires, and a great deal more, the unnecessary addition 
 does not necessarily invalidate the proceedings (q). But it will do 
 so if the unnecessary addition renders the order or instrument 
 substantially different from what is required by the statute (r). 
 
 Ilffect of the conviction. — ;So long as the conviction remains in 
 force, it cannot be contradicted, nor the facts recorded therein be 
 controverted (s) ; and it is a principle ^of law, that where justices of 
 the peace have an authority given them by an Act of Parliament, and 
 they appear to have acted within the jurisdiction so given, and to 
 have done all that thej' are required by the Act to do to originate their 
 jurisdiction, a conviction drawn up in due form and remaining in 
 force is a protection in any action brought against them for the act 
 so done, unless ^they have acted corruptly, and have convicted and 
 granted a warrant maliciously, and without any reasonable and 
 probable cause (t) (post, s. 2). And now, although the magistrate 
 had no jurisdiction in the matter, and had no legal authority to 
 make the conviction or order, the conviction is nevertheless conclu- 
 sive, and protects him from an action until it has been quashed. 
 
 Warrants of distress and commitment must state the cause of 
 the committal or distress (u). By 11 & 12 Vict. c. 43, s. 19^ it is 
 enacted, that where a conviction adjudges a pecuniary penalty to 
 be paid, or where an order requires the payment of money (v), and 
 by the statute authorizing the conviction or order such penalty, 
 compensation, or sum of nloney is to be levied upon the goods and 
 chattels of the defendant by distress and sale thereof, and also in 
 cases where, by the statute in that behalf, no mode of levying the 
 penalty, compensation, &c., is provided, it shall be lawful for the 
 justice, &c., making the conviction or order, or for any justice of 
 the peace for the same county, riding, division, &c., to issue a 
 distress-warrant for the levying of the same in the mode therein 
 provided, or, in case the defendant has no suflacient goods and 
 chattels, to issue a warrant of commitment (s. 21). And it is 
 enacted (s. 20), that in aU cases where a justice of the peace shall 
 issue any such warrant of distress, it shall be lawful for him to 
 suffer the defendant to go at large, or verbally, or by a Avritten 
 warrant, to order the defendant to be detained in custody until 
 return be made to such warrant of distress, unless security is 
 given by recognizance or otherwise, to the satisfaction of such 
 justice, for his appearance, &c. " It is to be remembered," observes 
 
 (4) ^. y. Jeffene, 4 T. E 769. («) Ag to imprisonment in case of non- 
 
 t} ^- li T'ur^-A ^^^^ . payment of penalties of 51. and under, sec 
 
 (s) Strickland V. TTord, 7 T. E. 633 n. t"-- " — " n._^i,! . . .._ .' _. 
 
 (i) Basten v. Carew, 3 B. & C. 653. 
 
 («) LawrensonY.Jl'Ul,10 Ir.C.L.Il.l84. 
 
SECT. l.J DIST14ESS FOE NON-PAYMENT OF POOR-EATB. 709 
 
 Coleridge, J., "that such an imprisonment is not a part of the 
 punishment under the conviction, but is a mere detention unto, the 
 return of the warrant, in case there should be no distress. It is a 
 power to imprison quia timet, extra the punishment, and such a 
 power should be strictly pursued. Now, assuming that magistrates 
 acting in the exercise of that power, have detained a party by 
 parol commitment for an indefinite time (the warrant of distress 
 not being returnable on a day certain), there is an excess of juris- 
 diction " (a;). In all cases of commitment of persons to prison, 
 the exact period of imprisonment must be stated on the face of the 
 warrant, for " if it is left indefinite a man may be imprisoned for 
 life" (3/). 
 
 In all cases of convictions where the statute on which the 
 same are founded provides no remedy, in case it shall be returned 
 to a warrant of distress thereon, that no sufficient goods can be 
 found, the justice to whom such return is made (s. 22), or any 
 other justice for the same county, &c., may, by his wan-ant, commit 
 the defendant for any term not exceeding three calendar months, 
 unless the sum adjudged to be paid, and all costs, &c. (the amount 
 thereof being ascertained and stated in such commitment), shall be 
 sooner paid. Provision is made (s. 23) for the issue of warrants of 
 commitment for inforcing payment of penalties, and, punishing 
 (s. 24) disobedience of orders of justices. See 28 & 29 Vict. c. 127, 
 ante, p. 708, n. 
 
 Where an imprisonment, warrant of justices, and seizure of 
 goods thereunder, are aU. defended on the ground that there was an 
 adjudication to pay costs, and there is no such adjudication, the 
 warrant is illegal, and the imprisonment and seizure of the goods 
 are wrongful, and an excess of jurisdiction {z). 
 
 By the 32 & 33 Vict. c. 62, arrest and imprisonment for debt 
 are abolished with certain exceptions, one of which is " default in 
 payment of aiiy money recoverable summarily before a justice or 
 justices of the peace " (s. 4). Under these words it has been held 
 that costs, awarded by the court of quarter sessions to one of the 
 parties to an appeal, and which by certain Acts might be enforced 
 before a justice by warrant of distress, and in default of distress by 
 warrant of commitment, are within the exception (a). 
 
 Exemption of justices from actions in respect of warrants of 
 distress for poor-rate.— Bj the 11 & 12 Vict. c. 44, s. 4, it is 
 enacted, that where any poor-rate shaU be made, .allowed, and 
 published, and a warrant of distress shall issue against the person 
 named and rated therein, no action shall be brought against the 
 
 (X) Lemy v. Patrkh, 15 Q. B. 274 if) Lm^V %^«*^f '^^ ^-^B- 274. 
 
 \y) Ld. Denman, C.J., PricUtt v. (o) P^g. v- PraU, L. R„ 5 Q. B. 176. 
 
 Gratrex, 8 Q. B. 1029. 
 
VI APPEAL AGAINST CONVICTIONS. [CHAP. XV. 
 
 justice who shall have granted such warrant by reason of any 
 irregularity or defect in the rate, or by reason of such person not 
 being liable to be rated therein. See ante, pp. 700, 701. 
 
 Warrants of distress and commitment in case of non-payment of 
 costs by an informer or complainant. — By 11 & 12 Vict. c. 43, s. 25, 
 it is enacted, that where any information or complaint is dismissed 
 with costs, the sum awarded for costs may be levied by distress on 
 the goods of the prosecutor or complainant; and, in default of 
 distress or payment, such prosecutor or complainant may be com- 
 mitted to prison for any time not exceeding one calendar month, 
 unless such sum, and all costs and charges of the distress, and of 
 the commitment, and conveying of suCh prosecutor or complainant 
 to prison (the amount thereof being ascertained and stated in the 
 commitment), shall be sooner paid. 
 
 Service of a copy of the minute of the order lefore tJie issue of a 
 warrant of commitment or distress. — It is enacted also (s. 17), that 
 in all cases where by Act of Parliament authority is given to commit 
 a person to prison, or to levy upon his goods or chattels by distress, 
 for not obeying any order of justices, the defendant shall be served 
 with a copy of the minute of such order before any warrant of 
 commitment or of distress shall issue, and such order or minute 
 shall not form any part of such warrant of commitment or of 
 ' distress. Wherever the interest of a person is to be affected by an 
 order of magistrates, he ought to have an opportunity of contesting 
 it (&). 
 
 The power of appeal to the court of quarter sessions against sum- 
 mary convictions and orders of justices is not a matter of common 
 right, but of special provision in particular statutes. It may be 
 given either absolutely, or conditionally, and if no limits as to time 
 be prescribed, the appeal must be brought within a reasonable 
 time (c). A right of appeal cannot be implied, but must be given 
 in express terms {d). Most statutes giving to justices a power of 
 summary conviction, also give a right of appeal, and prescribe the 
 time and mode of exercising the right ; and some of them impose 
 upon the convicting justice the duty of making known to the 
 party convicted his right of appeal (e). Any person who thinks 
 himself aggrieved by any summary conviction by borough justices, 
 under the Municipal Corporation Act, may appeal to the court of 
 quarter sessions in the manner therein provided (/). The procedure 
 in cases of appeal to courts of quarter sessions is now mainly 
 
 (6) Beg. t. Totmm Union, 7 Q. B. 699. (d) Seg. v. Stock, 8 Ad. & E. 411 
 
 Painter v. Uv. Gas Co., 3 Ad. & E. U'd. (e) Paley on Summary Convictions 
 
 (c) Lord Ellenborough, Rex v. Oxford- 5th ed., p. 340, et sea. ' 
 
 shire Just., 1 M.&S. 448. Sex v. Cashio- (f) 5 & 6 Wm. 4, u 76 s 131 
 
 bury Just, 3 D. & K. 35. . ■ . • 
 
SECT. l.J STAY OF EXECUTION PENDING APPEAL. 711 
 
 regulated by 12 & 13 Vict. c. 44, wMcli prescribes fourteen clear 
 days notice of appeal, and requires the grounds of appeal to be set 
 forth in such notice ; but the provisions in this statute relating to 
 notices of appeal do not (s. 2) affect appeals against summary 
 convictions, orders of removal, orders relating to pauper lunatics, 
 orders in bastardy, or proceedings under statutes relative to the 
 excise, customs, stamps, taxes, or post office. ^ 
 
 Eaxess of jurisdiction tnay he made a ground of appeal as well as 
 an erroneous decision. But a person haAdng a power of appeal is 
 not bound to appeal where a magistrate has acted without juris- 
 diction. He is at liberty to treat the act as void, and to avail 
 himseK of aU existing remedies at common law for obtaining 
 satisfaction for the wrong done. Many recent statutes giving 
 magistrates authority to make orders in certain cases for certain 
 things to be done, but giving parties the power of appealing to the 
 superior courts against the decision . of such magistrates, do not 
 in anywise abridge the controlling power of 'the Court of Queen's 
 Bench, in cases where the justices have exceeded their authority, or 
 have acted without authority. The power of appeal is given for 
 the purpose of reviewing the decision of justices in cases where 
 they had jurisdiction in the matter, but are supposed to have 
 decided erroneously in point of law on the facts before them, or 
 upon the merits. Where they had no jurisdiction to make the 
 order, an aggrieved party is entitled to a writ of certiorari, to 
 remove the order and quash it, just the same as if no power of 
 appeal at aU had been given {g). 
 
 Of the execution of convictions and orders after notice of appeal. 
 — Some statutes giving an appeal against summary convictions 
 expressly stay execution pending the appeal Qi). From the 27th 
 section of the 11 & 12 Vict. c. 43, it may be argued that, pending 
 an appeal, justices are not at liberty to grant a warrant of execution, 
 as they are expressly authorized to grant the warrant after the 
 appeal is determined. But section 35 enacts that the Act shall 
 not extend to any complaints, orders, or warrants in matters of 
 bastardy, with certain exceptions. The pendency of an appeal, 
 therefore, against an order on a putative father, and the granting 
 of a case for the opinion of the Court of Queen's Bench, as to 
 whether the order ought to be enforced, does not take away the 
 jurisdiction of justices to issue a warrant in execution of the 
 conviction, and to enforce payment of the money due under the 
 order in the interim ; for if the putative father could, as a matter 
 of right, entirely escape all liability to contribute to the maintenance 
 
 (g) Birmingham Churchwa/rdens, &c. v. 30 Law J., C. P. 379. ' And see ante, 
 Shaw, 10 Q. B. 880 ; 18 Law J., M. C. p. 642 , t -ivVr ■. -o .m 
 
 89. Pedley v. Davis, 10 0. B., N. S. 492; (h) lUg. r. Aston, 1 L. M. & V. 491. 
 
712 APPEAL AGAINST CONVICTIONS. [CHAP. XV. 
 
 of the child pending the appeal, he might for three months allow 
 the child to starve and oppress the mother, although he never 
 meant bond fide to prosecute the appeal. " In a vast majority of 
 cases, however," observes Lord Campbell, " it would be exceedingly- 
 improper in the justice to grant a warrant after notice of appeal 
 had been given and recognizances entered into, and before the 
 hearing of the appeal, or before the time for hearing it, has expired. 
 And, acting from a corrupt motive, he might be liable to an action 
 for maliciously granting it. But I do not think that in granting it 
 he could be said to have acted without jurisdiction, and possibly, 
 he might show that he had acted laudably in granting it. It might, 
 on the other hand, be highly improper for the justice to try to 
 enforce the order when the justices at quarter sessions had expressed 
 a grave doubt as to its validity, and his doing so might be evidence 
 of malice " (i). 
 
 Exemption of justices from liability where a -defective conviction or 
 order has been confirmed upon appeal. — By the 11 & 12 Vict. c. 44, 
 s. 6, it is enacted, that in all cases where a warrant of distress or 
 warrant of commitment shall be granted by a justice of the peace 
 upon any conviction or order, which either before or after the 
 granting of such warrant shall be confirmed upon appeal, no action 
 shall be brought against the justice who granted the warrant for 
 Anything which may have been done under the same by reason of 
 any defect in such conviction or order. 
 
 Statement of a case to the superior cowts by way of appeal from 
 decisions of justices.— B,y 20 & 21 Vict. c. 43, it is enacted, that after 
 the hearing and determining by justices of any information or 
 complaint which they have power to hear and determine in a 
 summary way {k), either party to the proceeding may, if dissatisfied 
 with the determination as being erroneous in point of law, apply in 
 writing within three days to the justices to state and sign a case, 
 setting forth the facts and grounds of such determination, for the 
 opinion thereon of one of the superior courts of law, to be named 
 by the party applying (;). Notice in writing, with a copy of the 
 case stated and signed, is to be given to the other party to the 
 proceedings, and security is to be given (m) by the appellant to 
 prosecute the appeal without delay, and to pay such costs as may 
 be awarded (s. 3). If the justices refuse to state a case (s. 4), the 
 appeUant may apply (s. 5) to the Court of Queen's Bench, upon an 
 
 ,i\ \\ ^ ' °;®.^- . *o jistioes, under 21 & 22 Vict c 101 
 
SECT. 1.] EEMOVAL BY CEETIOEAM. 713 
 
 affidavit, for a rule calling upon the justices and the respondent to 
 show cause why the case should not be stated ; and if the rule is 
 made absolute, the case is to be stated on the appellant's entering 
 into the required recognizances. 
 
 Power is given to the superior courts to hear and determine 
 cases sent up to them under this statute, and reverse, affirm, or 
 amend the decision of the justices below, or send the case back (s. 7) 
 for amendment, and to make all necessary orders in the matter. The 
 authority and jurisdiction of the superior courts in the matter 
 may (s. 8) be exercised by a judge at chambers, and after the 
 decision of the superior court has been given, the order is to be 
 enforced in the mode pointed out by the statute. '' It is a very 
 salutary practice," observes Lord Campbell, "for the recorder or 
 justices to find the facts, and submit them to this court for us to 
 decide whether the case was within the jurisdiction of the justices 
 or not. That is much better than for the court to have to gather 
 the facts from conflicting affidavits " (n). 
 
 Of the giiasMng of convictions and orders — Removal of orders and, 
 convictions ly certiorari (o). — The proceedings of all inferior courts 
 of record are removable by certiorari, for the purpose of being 
 examined by the Court of Queen's Bench, except where the writ of 
 certiorari is expressly taken away by statute {p) ; and even then 
 the writ is not taken away, as we shall presently see, in those cases 
 where inferior courts or magistrates have acted in a matter over 
 which they had no jurisdiction, nor in cases where they have 
 exceeded their jurisdiction, nor is it taken away by express 
 prohibitory words when it is moved for on behalf of the crown. 
 If there has been before the inferior court reasonable evidence from 
 which that court could draw the conclusion that facts existed which 
 would give them jurisdiction, and they have drawn that conclusion, 
 the Court of Queen's Bench has no power to review their decision, 
 and determine whether it was right or wrong {q). Where an order 
 of justices confirming a conviction is void, on the ground of interest 
 in the justices who made the order {ante, p. 688, et seq.), the Court of 
 Queen's Bench will ^ant a certiorari to bring up the order for the 
 purpose of quashing it, although the writ is taken away by statute, 
 for a statutory clause taking away the writ must be understood to 
 assume that the order has been made by proper authority, but that 
 is not proper authoritjr which is exercised by interested justices (r). 
 
 (n) Reg. v. mci:enson, 26 Law J., M. C. (?) Blaotburn J., in I^ Pater, 33 Law 
 
 J., M. C. 151. Pease v. Chaytor, 32 Law 
 
 (o) See Chitt. Arch. Pr., 11th cd., tit. J. M. C. 121. _ 
 
 nifRTioRAEi • andante, p. 642. (r) Jieg. v. HeHfordshvre Justices, 6 Q. 
 
 fT^TenvTvBur^eU, 1 Ld. Eaym. B. 753. Reg v. OMt Com., 1 Q. B. 467. 
 
 469 R. V. Moreky, 2 Burr. 1041. R. v. See R^x v. Justices of Monm., 8 B. & C. 
 
 West Riding Justices, 34 Law J., M. C. 137. 
 227. 
 
714 QUASHING CONVICTIONS. [CHAP. XV. 
 
 If the order was made by a court of quarter sessions on appeal 
 from justices in petty sessions, the Court of Queen's Bench wUl 
 quash it, and grant a mandamus to compel the quarter sessions to 
 enter continuances, and again hear the appeal (s). But a person 
 who seeks to quash a conviction on the ground that the justices 
 were personally interested, should make the objection at the time 
 of the hearing, or show that both he and his attorney were ignorant 
 of the fact at that time {t). 
 
 Decisions which are final, and canTWt be reviewed hy certiorari or 
 mandafmis. — By 12 & 13 Vict. c. 45, it is enacted, that the decisions 
 of courts of quarter sessions upon the hearing of any appeal, as to 
 the sufficiency of the statement of any ground of appeal, and as to 
 the amending, or refusing to amend, any order or judgment of jus- 
 tices appealed against, or the statement of any ground of appeal, 
 and as to the substitution of new recognizances, shall be final, and 
 not liable to be reviewed in any court by means of a writ of cer- 
 tiorari or mandamus, or otherwise. 
 
 Commitment fm' contempt. — If an inferior court having power to 
 commit or fine for contempt treats that as a contempt which there 
 was no reasonable ground for so treating, the Court of Queen's 
 Bench will interfere to protect the person subjected to an improper 
 exercise of the power, but the court cannot take upon itself the 
 functions of a court of appeal from the decision of the court below, 
 and if there was any colourable ground for the exercise of its juris- 
 diction, the Court of Queen's Bench will not interfere with its 
 judgment in the matter (u). A contempt of court being a criminal 
 offence, no person can be punished for it, unless the specific offence 
 charged against him be distinctly stated, and an opportunity given 
 him of answering (a;). See ante, p. 640. 
 
 When the writ of certiorari is not taken away by express statutory 
 prohibition. — The writ of certiorari .is not taken away by express 
 prohibitory or restraining clauses in cases where justices of the 
 peace have acted without jurisdiction (y), or where there were no 
 facts before them to give them jurisdiction, or where a summons 
 has been granted under one statute, and the defendant is convicted 
 under another (s), or where the decision has been made by a court 
 improperly constituted, as where magistrates have acted in the 
 execution of their office in matters and proceedings in which they 
 
 (a) Hopkme, Ex pcvrte. Ell. BI. & Ell. Oa. 106. See M'Dermctt v. Judges oj 
 
 100. - British Ouiama, 38 Law J. P C 1 • L 
 
 (t) Meg. V. Ld. Huntingtower, 8 Cox Cr. R., 2 1*. C. Ca. 841. ' ' 
 
 C. 562. Reg. v. CMt. Com., 1 Q. B. 474. \y) Rex v. Derh. Just.. 2 Kenyon, 299. 
 
 Dimes v. Qrand June. CamaZ Co., 3 H. L. Reg. v. Wwrwich Just., 6 Ell. & Bl! 837! 
 
 ^- 759. Reg. v. Badger, ib. 154. lieg. v. St. Albans 
 
 (u) Pater, In re, 33 Law J., M. 0. 142. 22 Law J., M. C. 142. See ante p 642 
 
 (a:) Ex pwrte Pollard, L. K., 2 Pri. Co. (z) Reg. t. Briclchall, ante, p. 696. 
 
SECT. 1.] REMEDY BY CEKTIOEARI. 715 
 
 ■were personally interested (a), or where it can be shown that the 
 conviction has been obtained by fraud and collusion to defeat the 
 law, or interfere with the pure administration of justice ; for in all 
 cases where the proceedings of courts of inferior jurisdiction are 
 shown to have been a fraud and mockery, or the result of conspiracy 
 and subornation of perjury, the court will exercise its jurisdiction 
 as a court of control over inferior jurisdictions, and will interfere 
 by certiorari and quash the proceedings, although it is expressly 
 enacted that no certiorari shall be issued to remove them (&), " for 
 fraud is an extrinsic collateral act, which vitiates the most solemn 
 proceedings of courts of justice." Lord Coke says, " It avoids all 
 judicial acts, ecclesiastical or temporal," and therefore the sentence 
 of a spiritual court may be annulled by proving the same to have 
 been obtained by fraud or collusion (c). 
 
 If a local board exceed their powers in making a by-law, and a 
 justice convicts upon the strength of it, he exceeds his authority in 
 so doing, and the conviction may be quashed on certiorari, although 
 the statute authorizing the creation of the board and the making of 
 the by-laws enacts that no proceeding touching the conviction of any 
 offender shall be removable by certiorari ; and the allowance of the 
 by-law by the Secretary of State makes no difference, " for no power 
 is given to him to legislate ; he can only confer an authority on a by- 
 law made conformably to the statute authorizing it to be made (cZ). 
 
 " It is a known rule," further observes Bayley; J., " that general 
 words in an Act that no certiorari shall be allowed, or the like, will 
 not bind the crown " (e), nor any private person prosecuting on 
 behalf of the crown (/), for the king's prerogative cannot be taken 
 away by Act of Parliament except by express words, and it is part 
 of Ms prerogative to try his cause in what court he pleases (g). 
 "If," observes Erie, J., "the use of the writ of certiorari were 
 restored in all cases, for the purpose of raising questions of sub- 
 stance for the opinion of the court, it would be a salutary addition 
 to the jurisprudence of this country " (h). 
 
 A certiorari wUl lie to remove judicial acts only. It will not 
 be granted, therefore, to remove mere ministerial proceedings, such 
 as a warrant to apprehend an offender, or a warrant of distress (i), 
 or an order for the appointment of overseers (Jc). 
 
 (a) Sea v. OheUenham, 1 Q. B. 474. («) ^ex v. AUen, 15 East, 342. Jiex v. 
 
 Jt^.Y. Aberdwre Canal Co., 14 ih. 854. Davks, 5 T. R 626. 
 
 (5) Reg. v. GiUyard, 12 Q. B. 527. /) R<y- y- Spencer 9 Ad. & E. 485. 
 
 \c) Duchess of Kingston's case, 2 Smith's (<7 Rex t. Ba-Jdey, 1 Kenyon, 100. 
 
 L. C. 679, eth ed. See Patch v. Ward, (h) Reg. v. Dichenson, 26 Law J., M. C. 
 
 l' E 3 Ch. App. 203. PeoA-se v. DoUn- 206. 
 
 sonTl.l,i Bq.^Oa. 241. ^ « Rfr.Kmg, 2 T. E. 235. Rex v. 
 
 (O) Rea V. Wood, 5 Ell. & Bl. 55. Atkms, 4 zb. 12. 
 
 Brown 7. local Board of Holyhead, 32 (k) Re The Overseers of Pudding Nor- 
 
 Law J., Exch. 25. B. v. Grey, L. R, 1 ton, 33 Law J., M. 0. 136. 
 Q. B. 469. 
 
716 QUASHING CONVIOTIONS. [CHAP. XV. 
 
 "Proof ly afldavit of the facts and circwnstances calling for the 
 interference of the superior court. — Altliough the proceedings before 
 justices are all regular on the face of them, and disclose a case 
 within the jurisdiction of the magistrates, yet the parties on either 
 side may bring before the superior courts affidavits disclosing on 
 the part of the magistrates the evidence on which they acted, and 
 on the part of the defendant the evidence on which he relied before 
 them, as well as other evidence affecting the merits not adduced 
 before them, for the purpose of showing that the case was not within 
 the jurisdiction of the magistrates. The superior court has no power 
 to review the decision on the merits, and to reverse it on the ground 
 that it was unwise or unjust. All that it can do is to see that the 
 case was within the jurisdiction of the magistrates who adjudicated 
 upon it, and that their proceedings are on the face of them regular, 
 and according to law (J). 
 
 " Magistrates," observes the court, " cannot, as it is often said, 
 give themselves jurisdiction merely by their own affirmation of 
 it (m). But it is obvious that this may have two senses : in the 
 one it is true ; in the other, on sound principle and on the best- 
 considered authority, it will be found untrue. Where the charge 
 laid before the magistrate does not amount in law to' the offence 
 over which the statute gives him jurisdiction, his finding the party 
 guilty, by his conviction in the very terms of the statute, would 
 not avail to give him jurisdiction. If, the charge being really 
 insufficient, the magistrate has misstated it in drawing up the 
 proceedings, so that they appear to be regular, it would be clearly 
 competent to the defendant to show by affidavits what the real 
 charge was, and, that appearing to be insufficient, we should quash 
 the conviction. Whenever a charge has been presented to the 
 magistrate over which he has no jurisdiction, he has no right to 
 entertain the question, or commence an inquiry into the merits, 
 and his proceeding to a conclusion will not give him jurisdiction. 
 But as in this latter case we cannot get at the want of jurisdiction 
 but by affidavits, of necessity we must receive them. But where a 
 charge has been well laid before a magistrate, on its face bringing 
 itself within his jurisdiction, he is bound to commence the inquiry. 
 In so doing he undoubtedly acts within his jurisdiction, but in the 
 course of the inquiry, evidence being offered for and against the 
 charge, the proper, or the irresistible, conclusion to be drawn may 
 be that the offence has not been committed, and so that the case in 
 one sense was not within the jurisdiction. Now to receive affida- 
 vits for the purpose of showing this is clearly in effect to show that 
 the magistrate's decision was wrong if he affirms the charge, and 
 
 (0 Terry v. Suntingdon, Hardr. 480. (m) Welch v. Nash, 8 East, 404. 
 
SECT. l.J AMENDMENT OP OEDEES. 717 
 
 not to show that he acted without jurisdiction; for they would 
 admit that, in every stage of the inquiry up to the conclusion, he 
 could not but have proceeded, and that if he had come to a diffenent 
 conclusion, his judgment of acquittal would have been a binding 
 judgment, and barred another proceeding for the same offence. 
 Upon principle, therefore, affidavits cannot be. received under such 
 circumstances. The question of jurisdiction does not depend on 
 the truth or falsehood of the charge, but upon its nature (n) ; it is 
 determinable on the commencement, not at the conclusion, of the 
 inquiry ; and affidavits to be receivable must be directed to what 
 appears at the former stage, and not to the facts disclosed in the 
 progress of the inquiry" (o). 
 
 Affidavits may be used to show that there was no evidence 
 before the justice of the facts necessary to give him jurisdiction in 
 the matter, but if there were facts in evidence before the justice, 
 from which it was reasonable to infer that he had jurisdiction, it 
 cannot be shown that there was other evidence, from which the 
 justice might reasonably have inferred the contrary ; for that would 
 only go to show that the finding of the justice on a matter within 
 his jurisdiction was wrong. Thus, although an information under 
 4 Geo. 4, c. 34, for punishing certain classes of servants who have 
 contracted to serve, and have refused to enter upon the service, or who 
 have absented themselves therefrom without leave, or have miscon- 
 ducted themselves in such service, is good on its face, as showing 
 that there was the requisite contract to serve, yet it is competent 
 to an accused person to show that there was no evidence before the 
 justice on which he was warranted in coming to the conclusion that 
 there was any contract of service at all, and that there was nothing 
 from which he could legally or reasonably infer that he had any 
 jurisdiction in the matter (p). 
 
 If justices have proceeded to remove a pauper without any 
 complaint by parish officers of the chargeability of such pauper, the 
 fact may be shown by affidavit ; for if there is no complaint, the 
 magistrates have nothing before them in respect of which they can 
 make an order, or exercise their magisterial functions (q). 
 
 Amendment of orders or judgments of Justices on return to a cer- 
 tiorari. — By 12 & 13 Vict. c. 45, s. 7, it is enacted, that if upon the 
 return to any writ of certiorari any objection shall be made, on 
 account of any omission or mistake in the drawing up of an order 
 
 (n) See Ex parte Vauglan, L. K., 2 Q. {p) BaiUy's case, 3 Ell & Bl. 618. Reg. 
 
 B 114 .r ^ _^ jj^j^j^ggj^^ 26 Law J., M. C. 204. Ped- 
 
 (o) Beg. T. Bolton, 1 Q. B. 72. Thomp- grift v. Ohevallier, 8 0. B., N. S. 240, 246. 
 
 sm. T. Ingham, 14 Q. B. 718. Thompson, Ellis v. Kelly, 6 H. & N. 222. Craven v. 
 
 In re, 30 Law i., M. C. 23. Penny, In Stubbins, 34 Law J., Ch. 126. 
 
 re. 7 BU. & Bl. 600; 26 Law J., Q. B. (?) Beg. v. Justices of Bucks, 3 Q. B. 
 
 225. 807. 
 
 E*. 
 
7.18 HABEAS COEPUS. [CHAF. XV. 
 
 or judgment of justices, and it shall be shown to the satisfaction of 
 the court that sufiicient grounds were in proof before the justices 
 making such order, or giving such judgment, to have authorized 
 the drawing up thereof free from the said omission or mistake, it 
 shaU be lawful for the court, upon such terms as to payment of 
 costs as it shall think fit, to amend such order or judgment, and to 
 adjudicate thereupon as if no such omission or mistake had existed ; 
 but no such objection is to be allowed unless the omission or mis- 
 take has been specified in the rule for issuing such certiorari (r)- 
 -If, on the face of an order, the justices making it are not described 
 as justices " in and for " the borough in which the order is made, or 
 there is any other defect in point of form, the court will amend the 
 defect without payment of costs on either side (s). 
 
 Of testing the legality of a commitment hy vjrit of habeas corpus. 
 — The legality of an imprisonment under a warrant of commitment 
 may be brought under the consideration of the superior courts, or a 
 judge in chambers, by writ of habeas corpus, which may be sued 
 out either in term or vacation. It is directed to the gaoler in whose 
 custody the prisoner is detained, directing him to bring up the body 
 of such prisoner before the court or judge, together with the cause 
 of his being taken and detained (t). Where a prisoner has been 
 lodged in gaol under a bad warrant of commitment in execution of 
 a conviction, a good warrant of commitment subsequently made out 
 and delivered to the gaoler, but before a rule for a habeas corpus 
 has been obtained, is a good answer to the rule {u). 
 
 The validity of the commitment may be tried on moving for a 
 rule to show cause why a writ of habeas corpus should not issue, 
 and why, in the event of the rule being made absolute, the prisoner 
 should not be discharged, without the writ actually issuing, or the 
 prisoner being personally brought before the court {x). On moving 
 for a writ of habeas corpus, the conviction may be brought before 
 the court, verified by af&davit, for the purpose of defeating the 
 magistrate's commitment ; but in such case the commissioner, before 
 whom the affidavit is sworn, ought to certify on the exhibit annexed 
 that it is the document referred to in the affidavit (jj). Although 
 a return to a writ of habeas corpus may be good on the face of it, 
 it may be shown that the conviction and commitment, under which 
 the prisoner is detained, were substantially a civil proceeding, and 
 that the arrest took place on a Sunday (a). 
 
 (r) Reg. v. Higkam, 26 Law J., M. 0. (m) Cross, Ex parte, 26 Law J., M. C. 
 
 116. iJ. T. Purdey, Zi Law J., M. C. 4. 201. jReg. v. Bichwrds, 5 Q. B. 932. 
 
 (s) Seg. T. HelUngley, 1 Ell. & Ell. 749 ; Smith, Ex parte, 27 Law J., M. C. 186. 
 
 28 Law J., M. C. 167. (x) Eggmgton's case, 2 Ell. & Bl. 731. 
 
 («) 2 Chitt. Arch. Pr. 1309, llth ed. (y) AlUson, In re, 10 Exch. 661. 
 
 Fry's Habeas Corpus {Gcmadian Pri- {z) Eggington's case, 2 Ell. & Bl. 717. 
 
 soner's case). Swan y.,Dc3cins, 16 0. B. 93. 
 
SECT. l.J COMPELLING JUSTICES TO ACT. 719 
 
 Upon a return to a habeas corpus affidavits are not admissible to 
 show that the offence was not committed within the jurisdiction of 
 the committing justice (a). 
 
 When a prisoner is entitled to his discharge from custody as a 
 matter of right, the court has no power to impose any terms upon 
 him as the condition of his release, and will not make his discharge 
 from custody dependent upon his undertaking to bring no action 
 against those who have unlawfully caused him to be imprisoned (&). 
 
 Proceedings a,gainst justices to connfel them to act in particular 
 cases. — By the 11 & 12 Vict. c. 44, s. 2, it is enacted, that in all 
 cases where a justice of the peace shall refuse to do any act relating 
 to the duties of his office as such justice (c), it shall be lawful for 
 the party requiring such act to be done to apply to the Court of 
 Queen's Bench, upon an affidavit of the facts, for a rule calling upon 
 such justice, and also the party to be affected by such act, to show 
 cause why such act should not be done ; and if, after due service 
 of such rule, good cause shall not be shown against it, the said 
 court may make the same absolute, with or without, or upon pay- 
 ment of, costs, as to them shall seem meet ; and the justice, upon 
 being served with such rule absolute, is to obey the same and do 
 the act required ; and no action or proceeding whatsoever is to be 
 commenced or prosecuted against such justice for having obeyed 
 the rule and done the act thereby required (cQ. 
 
 Before the court will make an order under this section of the 
 statute it must be satisfied that the act sought to be enforced would 
 be a lawful act. Where a rule was obtaiued calling upon justices 
 to show cause why they should not issue a distress-warrant to 
 enforce an order made by them, and it appeared that the order was 
 invalid, and that the issuing and execution of a distress-warrant 
 upon it would be an act of trespass, the court discharged the rule (e). 
 But the court cannot inquire into the merits, and if the justices 
 have jurisdiction, and the order is good upon the face of it, they 
 will be compelled to enforce it (/). 
 
 The court will not try a doubtful question of title on application 
 for an order under this section. " It would be very awkward," 
 observes Patteson, J., " if the new statute had the effect of bringing 
 all questions of title before us upon affidavit " (^). 
 
 Right of county justices to order the expense of county litigation to 
 he defrayed out of the county funds. — ^Wherever a duty is imposed 
 on a county, and costs incidentally and necessarily arise in 
 
 (a) Smith, Ex pwHe, 27 Law J., M. 0. {d) Seg. v. Mainwaring, Ell. Bl. & Ell. 
 
 186. 474. 
 
 (6) Downey's case, 7 Q. B. 281. (e) Reg. v. CoUins, 21 Law J., M. C. 73. 
 
 (c) As to what is a refusal, see R. v. (/) Hartley, In re, 31 Law J., M. 0. 
 
 Paynter, 26 Law J., M. 0. 102. 232. 
 
 {g) Reg. v. Browne, 13 Q. B. 654. 
 
720 EESPONSIBILITY OF CONSTABLES, ETC. [CHAP. XV. 
 
 questioning the propriety of acts done to enforce that duty, the 
 magistrates who have the superintendence of the county purse have 
 a right to defray such expenses out of the county stock. Expenses 
 of this sort have always been borne by the county, and uniform and 
 unbroken usage facit jus (Ji). 
 
 Of the power of justices to give costs. — Justices in their courts have 
 power under divers statutes to order payment of costs by the party 
 whom they decide against {i). An order directing the losing party 
 to pay costs to the clerk of the j)eace to be by him paid to the party 
 entitled to them is correct in form (Ic). Where there has been an 
 information before, and a conviction by, justtces, which conviction is 
 appealed against and quashed, the informer lodging the information, 
 and not the justices who convict, is the party to the proceedings 
 against whom the order for costs is to be made {I). 
 
 SECTION II. 
 
 EXEMPTION OF CONSTABLES AND THEIR ASSISTANTS FROM LfABILITY 
 WHEN ACTING IN THE EXECUTION OF WARRANTS AND ORDERS 
 OF MAGISTRATES. 
 
 Exemption of constables, officers, and their assistants from liability 
 for acts done by them, in obedience to a warrant of justices. — By 24 
 Geo. 2, c. 44, s. 6, it is enacted, that no action shall be brought against 
 any constable or other officer, or against any person acting by his 
 order or in his aid, for anything done in obedience to any warrant 
 under the hand and seal of any justice, until demand has been 
 made or left at his usual place of abode by the party intending to 
 bring the action, or his attorney or agent, in writing, signed by the 
 party demanding the same (m), of the perusal and copy of such 
 warrant, and the same hath been refused or neglected for the space 
 of six days after deraand. And in case after demand and 
 compliance therewith any action shall be brought against such 
 constable, officer, or person acting in his aid, without making the 
 justice a defendant, the jury shall, on production and proof of the 
 warrant at the trial, give their verdict for the defendant, notwith- 
 standing any defect of jurisdiction in such justice. And if the 
 
 {h) Rex V. Essex, i T. K. 591. the liability to repair is disputed, 25 & 26' 
 
 (i) As to costs under the Vagrant Acts, Vict. c. 61, s. 19. 
 
 5 Geo. 4, c. 83. Coats in appeals, 12 & 13 (i) Gay v. Matthews, 33 Law J,, M. C. 
 
 Vict. c. 45, ss. 5, 13. Seg. v. Justices of 14. As to orders to pay to the party 
 
 Middlesex, L. K., 6 Q. B. 320. Savmsley entitled, see JReg. v. Huntley, 3 Ell. & Bl. 
 
 T. HvicUnson, L. R., 6 Q. B. 305. Costa 172. 
 
 of prosecutions for the non-repair of a {I) Reg. t. Purdey, 34 Law J., M. C. 4. 
 
 highway, 5 & 6 Wm. 4, c. 50, s. 98. Where (m) Cla/rh t. Woods, 2 Exch. 405. 
 
SECT. 2.] EXEMPTION OF CONSTABLES. 721 
 
 action is brought jointly against the justice and constable, or officer, 
 &c., then, on proof of the warrant, the jury shall iind for such 
 constable, ofacer, &c., notwithstanding such defect of jurisdiction. 
 
 Every person to whom a statute requires a warrant to be directed 
 and who is required to execute the same, may be considered an 
 officer of the law, coming within the principle of the protection 
 afforded by this statute (n), and has the period of six days after the 
 demand of his authority for the production of it ; within which 
 time, if he comply with the demand, he secures his indemnity. 
 But if he delay after that time, he subjects himself to be sued as 
 any other person. If, however, after the six days have expired, 
 but before the issue of a writ, he complies with the demand, he is 
 still entitled to the protection of the statute (o). This statute is 
 confined to actions of tort (p), and the officer, in order to be entitled 
 to the protection, must show that in doing what he did he acted 
 in obedience to the warrant ; for if he exceeds his authority, or acts 
 without a warrant, or arrests a person not named in the warrant, 
 he is not entitled to the benefit of the statute (q). 
 
 If the warrant is directed to be executed within the limits of a 
 particular county, and the officer by mistake executes it beyond 
 the prescribed limits, he has not acted in obedience to the warrant, 
 and is not entitled to the statutory protection (r). Neither can he 
 claim the benefit of the statute in cases where, when acting under a 
 search-warrant, he has seized an(l carried away articles not men- 
 tioned in the warrant, and not in anywise connected therewith (s) ; 
 nor when, under a warrant to apprehend A, or to seize the goods of 
 A, he apprehends B, or takes the goods of B (i) ; nor if he exceeds 
 the authority given him by the warrant and commits any excess, 
 such as remaining longer in a dweUii^g-house than he was legally 
 authorized to remain, or breaking open doors and windows which he 
 was not authorised to break open (u). But whenever the officer has 
 acted in obedience to the warrant, he secures his indemnity by 
 complying with the requirements of the statute, although the 
 warrant may be illegal or improper, or may have been granted by 
 a magistrate who had no jurisdiction or power to grant it (x). If 
 the officer loses the protection of the statute, he must justify under 
 the justice's warrant (y). 
 
 (n) PeiOey x. Davis, 30 Law J., C. P. Hoye\. Bush, 1 M. & Gr. 775 j 2 Sc. N. B. 
 
 374. 92. 
 
 (o) Jones V. Vaughan, 5 East, 447. (u) Peppercorn v. ETofman, 9 M. & W. 
 
 (p) Irving T. Wilson, 4 T. E. 485. 628. BeU v. OaUey, 2 M. & S. 259. See 
 
 (g^ Bdl V. Oahley, 2 M. & S. 259. Pos- Sir Michael Foster's Discourse offfond- 
 
 tletMoaite v. Gibson, 3 Esp. 226. Qalliard eide, p. 319. 
 
 V. Laxton, ante, p. 57.6. W Atlrnis v. lOiby, 11 Ad. & E. 784. 
 
 (r) MiUon v. Green, 5 Bast, 238. Price t. Messenger, 2 B. & P. 158. Reg. 
 
 (s) Orozier v. Oundey, 6,B. & 0. 232. t. Davis, 30 Law J., M. C. 159. 
 
 (t) Money y. Leach, 3 Burr. 1768. Kay (y) Read v. Cocker, 13 0. B. 859. 
 V. Qr<mer, 7 Bing. 312 ; 5 M. & P. 145. 
 
722 EESPONSIBILITY OF CONSTABLES. [CHAP. XV. 
 
 By the 11 & 12 Vict. c. 43, s. 19, constables are authorized to 
 execute warrants out of their districts, provided they are executed 
 within the jurisdiction of the justice granting or backing the same. 
 But the constable is not bound to execute a warrant out of his own 
 district (z). A warrant of distress for rates directed to two persons 
 for execution, may be executed by one of them alone (a). 
 
 Excess of authority on the part of constables and officers — Hand- 
 cujffimg unconvicted prisoners. — If a constable abuses the legal au- 
 thority conferred upon him by detaining a prisoner an unreasonable 
 time without taking him before a magistrate, or by unnecessarily 
 handcufiing him, he becomes a trespasser ah initio, and cannot 
 protect himself under the warrant. A constable or peace-officer 
 has no right to handcuff an unconvicted prisoner unless he has 
 attempted to escape, or except it be necessary in order to prevent 
 his escaping. " Such a degree of violence and restraint," observes 
 Bayley, J., " upon the person cannot be justified, even by a con- 
 stable, unless he makes it appear that there are good special reasons 
 for his resorting to it " (6). 
 
 Abuse of a search-warrant. — If a constable armed with a search- 
 warrant searches the wrong house, or stays an unreasonable and 
 unnecessary time in a house he is authorized to search, or uses any 
 unnecessary violence in the execution of the warrant, or seizes 
 things not specified in the warrant, and which are not likely to 
 furnish evidence of the identity of the articles stolen and mentioned 
 in the warrant, or to support a charge of felony, he becomes a 
 trespasser, and is liable to an action for damages (c). 
 
 SECTION III. 
 
 EEMEDIES fOE WEONGS DONE UNDEE COLOUE OP CONVICTIONS 
 AND WAEEANTS OF JUSTICES. 
 
 Beplevin of chattels distrained wnder wa/rrant of justices. — " Though 
 in ordinary practice," observes Parke, B., "the remedy by replevin 
 is applied only to a distress for rent, yet it. is at common law 
 applicable in aU cases where goods are improperly taken {d) ; and 
 I find no satisfactory authority to show that it will not lie where 
 goods are improperly taken under a warrant of a justice of the 
 peace. In some cases, no doubt, the court will interfere to prevent 
 
 («) Qmhert v. (%n«y, M'Clel. & Y. 265 j 28 Law J., Exch. 134. 
 
 *8^\ _ , (c) Cromr v. Cundey, 6 B. & C. 232 ; 
 
 (a) Lee v.Vessty, 25 Law J., Exch. 271. 9 D. & E. 224. Bum's Justice, Seabch- 
 
 (6) Wright V. Court, 6 D. & E. 625 ; i Wabrakt. ' 
 
 B. & C. 5,96. Oriffin v. Coleman, iS.&N. (d) Mellor v. Leather, 1 EU. & Bl. 619. 
 
SECT. -3.] ACTIONS AGAINST JUSTICES. 723 
 
 a replevin, to save its process from being defeated. The rule is 
 correctly stated in Chief Earon Gilbert's treatise on Eeplevin, 
 p. 138, where it is said, ' If a superior court award an execution, 
 it seems that no replevin lies for goods taken by the sheriff by 
 virtue of the execution, and if any person shall pretend to take out 
 a replevin and execute it, the court would commit them for contempt 
 for attempting to defeat the execution, and would punish the sheriff 
 by attachment.' But Chief Baron Gilbert also says, ' that in cases 
 in which the court has no jurisdiction, the goods may be replevied.' 
 If, therefore, goods have been seized under a justice's warrant, and 
 the justice had no jurisdiction to make the warrant, the goods so seized 
 may be replevied" (e). "It is true," further observes Alderson, B., 
 " that replevin will not lie for goods seized under the judgment of 
 a superior court ; for if you replevied on the first judgment, you 
 could do so on the judgment upon that also, and so there would be 
 replevin on replevin ad infinitum. It is different in the case of an 
 inferior jurisdiction, wliich is to be set right by the- superior " (/). 
 
 Of actions against justices. — By the 11 & 12 Vict. c. 44, s. 1, it is 
 -enacted, that every action thereafter against a justice of the peace, 
 for any act done by him in the execution of his duty with respect 
 to any matter within Ms jurisdiction, shall be an action on the case 
 as for a tort, and in the declaration of the cause of action it shall 
 be expressly alleged and proved at the trial that the act was done 
 maliciously, and without reasonable and probable cause (g). 
 
 Also (s. 2), that for any act done by a justice of the peace in a 
 matter of which bylaw he has not jurisdiction, or in which he shall 
 have exceeded his jurisdiction, any person injured thereby, or by 
 any act donfe under any conviction, or order made, or warrant 
 issued, by such justice in any such matter, may maintain an action 
 against such justice as before the passing of the Act, without proving 
 that the act was done maliciously, and withoitt reasonable and 
 probable cause Qi) : but no such action shall be brought for anything 
 done under such conviction or order, until after the conviction shall 
 have been quashed, either upon appeal or upon application to the 
 Court of Queen's .Bench : nor shall any such action be brought for 
 anything done under any warrant which shall have been issued by 
 such justice to procure the appearance of a party before him, and 
 which shall have been followed by a conviction or order in the 
 same matter, until after the conviction or order shall have been 
 quashed ; or if such last-mentioned warrant shall not have been 
 
 (e) George v. Chambers, 11 M. & W. (/) H M. & W. 161. As to proceed- 
 
 ,159 Om V. Mathews, 32 Law J., M. C. ings m replevin, see ante, pp. 551—554. 
 
 -58 Pease v. Chaytor, ib. 121. Morrell (rf).Burleyv. Bethune, 5 Taunt. 583. 
 
 V MaHin, 3 M. & Gr. 590. Parke, B., {h) See Midelton t. Gale, 8 A. & E. 
 
 Jones T. Johnson, 5 ExoL, 875. 155. Pease t. Chaytor, supra. - 
 
 A A A 2 
 
724 ACTIONS AGAINST JUSTICES. [CHAP. XT. 
 
 followed by any such conviction or order, or if it be a warrant upon 
 an information for an alleged indictable offence, nevertbeless, if a 
 summons was issued previously to such warrant, and served upon 
 the party, either personally or by leaving the same for him with 
 some person at his last or most usual place of abode, and he did 
 not appear according to the exigency of the summons (i), in such 
 case no action shall be maintained against such justice for anything 
 done under such warrant. 
 
 When the action is brought in respect of things done without jwis- 
 diction, or in excess of jurisdiction, therefore, as where a warrant is 
 made or an order granted, which the justice had no authority to 
 make or grant, and the warrant or order has been enforced, and any 
 person has been imprisoned or his goods have been seized under it, 
 an action for a trespass is maintainable against the justice (k). But 
 before such action is commenced notice of action must be given 
 (post, p. 726), and the conviction or order must be quashed. 
 
 When ihe action is brought for a malicious conviction, commitment, 
 or distress, or a malicious ahise by a magistrate of the functions of 
 his office, it is not necessary to get the conviction quashed before 
 bringing the action, but notice of action must te given, and the 
 action must be brought within the time limited by the statute, and 
 proof must be given that the magistrate acted corruptly or mali- 
 ciously, and had no reasonable or probable cause for convicting or 
 making the order (J). 
 
 Where an information was laid before a justice, upon which he 
 convicted and awarded a penalty and costs, and ordered them to be 
 levied by distress, and so far pursued his jurisdiction, but he then 
 exceeded it, by adding an alternative that the plaintiff should be 
 put in the stocks in case the penalty and costs were not paid or 
 raised by distress, and the plaintiff's goods were seized under a 
 distress, but the plaintiff was not put in the stocks, and the convic- 
 tion was afterwards quashed, and an action was brought against 
 the justice for the distress, it was held that the justice was entitled 
 to the protection afforded by the first section of the statute,' and 
 could not be treated as a trespasser. " It cannot be doubted," it 
 was observed, "that the justice had jurisdiction in everything 
 except the alternative order, and the action is brought, not for ' 
 putting the plaintiff in the stocks under it, but for doing that 
 which the defendant might have justified if he had drawn up his 
 conviction in proper form. The construction of sect. 2 of the 
 statute must be so controlled by sect. 1 as to be consistent with it ; 
 
 (i) An appearance by counsel or attor- (W Leary v. Pafyick, 15 Q.' B. 272. 
 
 ney is a sufficient appearance. Bmell v. Lawrenson v. Hill, <mte, p. 708. 
 Wilson, 1 Ell. & Bl. 496. (f) Kirby v. Simpson, 10 Exch. 367 ; 23 
 
 Law J., M. C. 165. See post, p. 730. 
 
SECT. 3.] SETTING ASIDE ACTIONS. 725 
 
 and that is done by so construing sect. 2 as to confine its applica- 
 tion to cases in which the cause of action arises from the excess of 
 jurisdiction, as it would have done in this case, if the plaintiff had 
 been put in the stocks, and had brought his action for that '' (m). 
 
 Effect of ilie existence of a power of appeal on the right to bring 
 an action. — It does not follow that because a plaintiff had a power 
 of appeal and failed to exercise it, that he is thereby precluded 
 from having recourse to the ordinary remedy' by action to try the 
 right. There is a great distinction in this respect between cases 
 where there was jurisdiction to convict or to make an order and 
 issue a warrant, and the aggrieved party had a ground of appeal 
 against the conviction or order made with jurisdiction, and the case 
 where there was no jurisdiction to convict or to make the orders 
 and so no jurisdiction to issue the warrant. " If, in the first instance, 
 the court has gone beyond its jurisdiction, the Act is void. The 
 party aggrieved may, if he pleases, appeal, because excess of juris- 
 diction is as much a ground of appeal as a merely erroneous deci- 
 sion ; and if the court of appeal erroneously confirms the act of the 
 court below, it may be that the party appealing carmot object to 
 the want of jurisdiction in any collateral proceeding. His own act 
 may estop him personally, but he is not bound to appeal, because 
 he is at liberty to treat the act as void" (ra). 
 
 Objections Tyy justices to actions against them in the county court. — 
 In all actions against justices of the peace in the county court, the 
 action must be brought in the court within the district in which 
 the act complained of was committed ; but no action can be brought 
 in any county court against a justice of the peace for anything 
 done by him in the execution of his office, if such justice shaU 
 object thereto (o). Where a justice of the peace, who had been 
 sued in the county court for an act done by him in the execution 
 of his office, gave notice that he objected to being sued in the 
 county court, and afterwards applied for and obtained a writ of 
 certiorari to remove the cause from the county court into the Court 
 of Exchequer, it was held that this notice terminated the proceed- 
 ings in the county court altogether, and therefore that iie suit 
 could not be removed into the superior court (p). 
 
 Of setting aside certain actions drought against justices of the peace. 
 —Provision is made by the 11& 12 Vict. c. 44, s. 7, for setting aside 
 proceedings in certain actions against justices of the peace, brought 
 in defiance of the provisions of that statute. (See ante, pp. 723—4.) 
 
 (m) Per Coleridge and Erie, JJ. ;• Bar- 89. Pedley v. Dams, 10 0. B., N. S. 492 j 
 
 ton V. BrickmU, 13 Q. B. 393; 20 Law J., 30 Law J., C. P. 379. 
 M. C. 1. Lawrenson v. Sill, ante, p. 692. (o) 11 & 12 Vict. c. 44, s. 11. 
 
 (n) Churchwwrdens of Birmingham v. (p) Weston v. Sneyd, 1 H. & N. 703 ; 
 
 Shaw, 10 Q. B. 8S0 ; 18 Law J., M. C. 26 Law J., Esoh. 161. 
 
726 ACTIONS AGAINST JUSTICES. [CHAP. XV 
 
 Limitation of actions against justices of the peace. — By s. 8 it is 
 enacted, that no action shall be brought against any justice of the 
 peace for anything done by him in the execution of his office, 
 unless the same be commenced within six calendar months after 
 the act complained of has been committed. The period of limita- 
 tion runs from the termination, not fromthe commencement, of the 
 wrongful act (g). Therefore, when a person'has been wrongfully 
 imprisoned under an illegal commitment, the time of limitation will 
 run from the period of the termination of the imprisonment, and 
 not from the time of the making out of the warrant of commit- 
 ment (r). And ' where goods have been sold under an illegal 
 warrant of distress, the time of limitation will run from the period 
 of the sale of the goods, and not from the time of the original 
 seizure. The seizure is not made absolutely in the first instance, 
 but with a view only to the detention of the goods until the amount 
 ordered to be levied should be paid, and their subsecpient sale if it 
 should not be paid, so that the seizure and sale form part of one 
 continued grievance, which distinguishes it from cases where the 
 seizure is for a forfeiture (s). 
 
 Where an action is intended to be brought against a justice of 
 the peace for a wrongful imprisonment, under a conviction or order 
 of commitment which the justice had no jurisdiction to make, the 
 time of limitation will run from the tifae of the making of the con- 
 viction or order, and not from the time of the qiiashing thereof. 
 .The quashing of the conviction is only a condition to the prosecu- 
 tion of the action, like the delivery of an attorney's bill, or the 
 giving a notice of action (t). 
 
 Of notice of action against justices. — By s. 9 it is enacted, that 
 no action shall be commenced against any justice of the peace for 
 anything done by him in the execution of his office, until one 
 calendar month at least after a notice in writing of such intended 
 action shall have been delivered to'him, or left at his usual place 
 of abode, by the party intending to commence such action, or by 
 his attorney or agent ; in which notice the cause of action, and the 
 court il which the same is intended to be brought, sliaU be clearly 
 and explicitly stated, and upon the back thereof shall be indorsed 
 the name and place of abode of the party intending to sue, and also 
 of the attorney or agent, when the notice is served by an attorney 
 or agent (u). 
 
 Statutory clauses for the protection of magistrates in the execution 
 
 (a) JacoTfib V. Dodgson, 32 Law J., M. (s) .CoUms v. Hoss, 5 M. & W. 202. 
 
 C. 113. («) Bayloch v. Sparke, 1 Ell. & Bl. 471; 
 
 (r) Massey v. Johnson, 12 East, 67. 22 Law J., M. C.,67, 71. 
 
 Saa-dy V. Syle, 9 B. & C. 607. Violett v. (a) As to notice of action, see ante, 
 
 Sympson, 8 Ell. & Bl. 346. pp. 589—593, 667, 668. 
 
SECT. 3.] NOTICE OF ACTION. 727 
 
 of the duties of their office, appear always to have been construed 
 on the principle that where the magistrate, with some colour of 
 reason and bond fide, believes that he is acting in pursuance of his 
 lawful authority,, he is entitled to protection, although he may pro- 
 ceed iUegaUy or exceed his jurisdiction (x). And where he acts in 
 his magisterial capacity maliciously, and without ioTid fides, he is 
 still entitled to the statutory protective preliminaries to an action, 
 and to an opportunity of tendering amends. A magistrate may act 
 maliciously (post, s. 2), and yet may have reasonable and probable 
 cause for his acts. So he may be in the execution of his duty 
 although he may act maliciously; and in all cases where the substance 
 of the complaint is that he has abused his power as a magistrate, he 
 is entitled to notice of action (y). The question as to whether the 
 magistrate was acting in the execution of his office, is a question at 
 the trial for the judge, and not for determination by a jury (y). 
 
 Wherever the magistrate has authority to act upon the subject- 
 matter of the complaint brought before him, he must be considered 
 to have acted by virtue of his office, although the place where the 
 offence was committed was not within his jurisdiction (z). In a 
 case where one magistrate acted alone in a matter which required 
 the concurrence of two, it was held that he was acting in execution 
 of his office, and was entitled to notice of action (a). 
 
 Wherever, also, the magistrate, in what he did, intended to act 
 in the execution of some special power or authority conferred by a 
 statute requiring notice of action to be given, notice of action must 
 be given to the magistrate, although, in point of fact, he was not 
 acting under the statute, and had no power to do what he has done 
 (ante, pp. 586 — 589). But to be entitled to the protection,- the 
 party claiming it must be actually a justice, accidentally commit- 
 ting an error, and not doing a wrongful act for his own benefit (b). 
 
 A person who intends to sue a justice of the peace for an act 
 done by him in a matter respecting which he had no jurisdiction, 
 need not wait for the quashing of the conviction or order of com- 
 mitment before giving the notice of action. The notice of action 
 may be given as soon as the wrongful act has been committed, 
 though the action itself cannot be commenced imtil after the con- 
 viction or commitment has been quashed (c). If in the case of a 
 conviction the magistrate receives notice of action before the con- 
 viction is quashed, he may at his peril rely upon the validity of the 
 
 (x) HazeUine v. Grove, 3 Q. B. 1006. («) Wdler y. me, 9 Eas^ 363 
 
 LaJren,on v. ffill, 10 Ir. Com. Law Rep. (6) Morgan w. Palmer, 2 B & a 729 ; 4 
 
 504 ; ante, pp. 586-589. D- & E. 433. Brw^ v. Evelyn, 2 H. Bl. 
 
 Law' J., M C. 165. (0 ^"'V^^ v. Sparh, 22 Law J., M. 
 
 (z) Prestidge v. Woodman, 1 B. & C. 12 ; 0. 67. 
 2D.&K. 45. 
 
728 ACTIONS AGAINST JUSTICES, CONSTABLES, ETC. [CHAP. XV. 
 
 conviction, and abstain from tendering amends ; but if he does so 
 and the conviction is quashed, the action may be commenced against 
 him one calendar month after service of the notice {d). 
 
 Statement of the cause of action on the face of the notice. — The 
 nature of the cause of action, or of the complaint or grievance, 
 should be explicitly stated on the face of the notice, so as to show 
 whether the plaintiff proceeds against the magistrate for an act 
 done by him maliciously, and without reasonable and probable 
 cause, in the execution of his duty as a justice, with respedt to 
 some matter within his jurisdiction, within the first section of 11 
 & 12 Vict. c. 44, or for an act done by him in a matter over which 
 he had no jurisdiction, or respecting which he had exceeded his 
 jurisdiction within the second section of that statute. If the notice 
 fails clearly and explicitly to point out the nature of the cause of 
 action, so as to show whether it is governed by the first or the 
 second section of the statute, it will be a bad notice. (e). " But the 
 notice," justly observes Abbott, C.J., " ought not to be construed 
 with great strictness, its object being merely to inform the defen- 
 dant substantially of the ground of complaint, but not of the mode 
 or manner in which the injury has been sustained " (/). The time 
 and place of the doing the act complained of ought also to be stated 
 in the notice. "I do not go so far," observes Lord Denman, "as to say 
 that a party wiE. always be strictly bound to prove the time and place 
 , which he names in his notice, but I ±ha«k the words of the statute 
 require that a time and place for- the occurrence be named" (jf). 
 
 Tender of amends before action. — By 11 & 12 Vict. c. 44, s. 11, 
 it is enacted, that after notice of action has been given to a justice, 
 and. before the action shall be commenced, the justice to whom 
 such notice shall be given may tender to the party complaining, or 
 to his attorney or agent, such sum of money as he may think fit, 
 as amends for the injury complained of in such notice ; and if the 
 jury at the trial shall be of opinion that the plaintiff' is not entitled 
 to damages beyond the sum so tendered, then they shaU give a 
 verdict for the defendant, and the plaintiff shall not be at liberty 
 to elect to be non-suited.' Whether the preliminary matters 
 reqxiired by statute for the protection of magistrates have been duly 
 complied with appears to be a question for the decision of the judge 
 at the trial, and not for determination by a jury (h). 
 
 Of the com'putation of the month's notice, and of the time for 
 tendering amends. — The general rule is, that when time for a parti- 
 
 (d) Ma/j/hcJc v. Sparhe, ut sup. v. Fytche, 14 M. & W 387 
 
 (e) Tayhr v.NesfiOd, 3 EU..&BI. 724; (g) Mas-tins v. Upcher, 3 O. B 668 
 
 23 Law J., M C. 169. (k) Parke, B., ICirby v. Simpson^ 10 
 
 (/) Prtchett V. Gratrex, 8 Q. B. 1020. Exoh. 366. J mold v. Mamek ij. 366 
 Jones T. £ird, 5 B. & Aid. 844. JacTclin 
 
SECT. 3.] PAKTIES TO BE DEFENDANTS. 729 
 
 cular period is allowed to a person to do any act, the day from 
 • whicli the computation is to be made is to be reckoned exclusively. 
 And "whenever a certain space of time is given to a person to do 
 some act, which space of time is included between two other acts 
 to be done by another person, " both the days of doing those acts 
 ought," observes Alderson, B., " to be excluded, in order to insure to 
 him the whole of that space of time. Thus, where a month's 
 notice of action is req[uired to be given to a justice of the peace 
 before an action can be commenced against him, and the justice is 
 to have the whole of that month for tendering amends, both the 
 day of the giving of the notice and the day of the tendering amends 
 are to be excluded from the computation of the time ; for, wherever 
 the Act of Parliament allows a party an intervening period of a 
 Bionth, within which to deliberate whether he will tender amends 
 or not, unless you exclude both the first and the last day, you do 
 not give him a whole month for that purpose " (i). 
 
 Of the statutory protection to constalles, officers, and their assist- 
 ants from vexatious actio7is. — Where a constable is acting bond fide, 
 and with an honest optaion that he is discharging his duty, and 
 that he is acting at the time in obedience to the warrant of a 
 magistrate, he is entitled to the statutory protection mentioned 
 ante, p. 586 et seq^., although he is altogether mistaken in the pro- 
 ceedings he has adopted, and had in truth no warrant or authority 
 for what he has done. If, for example, an officer, meaning hand fide 
 to act under a warrant, by mistake arrests the wrong person, or 
 seizes the goods of the wrong party, and so does an act which the 
 warrant did not order him to do, and for which he had consequently 
 no authority, he is, nevertheless, if he acted land fide, entitled to 
 the benefit of the protecting clause, limiting the time for the 
 bringing of an action against him for the trespass (k). 
 
 Parties to he made defendants — Wrongful convictions and orders 
 by one justice acted upon by another justice. — By 11 & 12 Vict. c. 44, 
 s. 3, it is enacted, that where a conviction or order shall be made 
 by one justice, and a warrant of distress or of commitment shall be 
 granted thereon by some other justice, bond fide and without collu- 
 sion, no action sliall be brought against the latter by reason of any 
 defect in such conviction or order, or for any want of jurisdiction 
 in the justice who made the same ; but the action, if maintainable,' 
 is to be brought against the justice or justices who made the 
 conviction or order. 
 
 Liability of persons who set justices and constables in motion. — If 
 a person merely lays a cause of complaint before a maigistrate in a 
 
 (i) Alderson, B., Young v. Sigyon, 6 (h) Pwrton v. WilUams, 3 B. & Aid. 
 
 M. k W. 54. See ante, p. 592. 335. Smith v. Wiltshire, 5 Moore, 322. 
 
730 ACTIONS AGAINST JUSTICES, CONSTABLES, ETC. [CHAP. XV. 
 
 matter over -vvhicli the magistrate lias a general jurisdiction, and 
 the magistrate grants a warrant, upon which the person charged is 
 arrested, the party laying the complaint is not responsible for an 
 assault and false imprisonment, although the particular case be one 
 in which the magistrate had no authority to act (I). But if the 
 proceeding is founded in malice, or if the complainant accompanies 
 the constable charged with the execution of the warrant, and points 
 out the person to be arrested under it, he may render himself liable 
 either to an action for a malicious prosecution, or to an action for 
 false imprisonment (m). If a private person intervenes between the 
 magistrate and the constable, and busies himself in executing the 
 justice's warrant, and the proceedings should be «et aside, he may 
 render himself responsible in damages for the consequences of his 
 interference (n). "Wliere the defendant having accused the plaintiff 
 of embezzlement, both parties agreed to go before a magistrate to 
 settle the matter^ and fhe defendant, addressing the magistrate, said 
 he came to prefer a charge of embezzlement against the plaintiff, 
 whereupon the plaintiff was ordered to go into the dock, and was 
 detained in custody until the charge had been heard and dismissed, 
 it was held that the defendant was not responsible for the imprison- 
 ment, which was an act done by the magistrate in the exercise of 
 his authority (o). 
 
 . Evidence at the trial of actions against justices {p). — In all actions 
 against justices of the peace for any matter done by them in the 
 execution of their office, they may plead the general issue, not 
 guilty by statute, and give the special matter in evidence (g) ; and 
 the sarnie privilege is extended by various statutes to constables and 
 officers in cases of actions against them for things done by them by 
 virtue of their offices. If the act of a magistrate is done without 
 jurisdiction, it is a trespass ; if within his jurisdiction, the action 
 rests .upon the corruptness of motive, and to establish this the act 
 must be shown to be malicious (r). . 
 
 Proof of malice and of the want of reasonable and probable cause. 
 — There is a wide distinction between an action against a prosecutor 
 for a malicious prosecution, and an action against a magistrate for a 
 malicious conviction and imprisonment thereunder. In the former 
 case, proof that there was in reality no ground for imputing the crime 
 to the plaintiff, shows that the prosecution was instituted without 
 probable cause, and malice may be" inferred from thence ; but in 
 
 (I) Carrait v. MorUy, 1 Q. B. 28. Barher v. RolUnson, 1 Cr. & M. 330. 
 . (to) Cohen v. Morgan, 6 D. & E. 8. {p) As to the pleadings, see ante, 
 
 Barber v. RolUnson, 1 Cr. & M. 330. p. 723, et aeg. 
 
 Westv.SmaUwood, ZM.&W. 418; ante, (q) U &. 12 Vict. c. ii, s. 10. See 
 
 pp. 594—596, 670. ante, pp. 599, 600. 
 
 (n) Painter v. Liv. Gas Co., 3 Ad. & E. ()■) Erie, J., Taylor v. Nesfidd, 3 Ell. & 
 
 444. Bl. 730. 
 
 (o) Brown v. Cliapman, 6 C. B. 376. 
 
SECT. 3.] WANT OF PROBABLE CAUSE. 731 
 
 an action against a magistrate for a malicious conviction, the 
 question is not "whether there was any actual ground for imputing 
 the crime to the plaintiff, but whether, upon the hearing, there 
 appeared to he none. The plaintiff must prove a want of probable 
 cause for the conviction, which he can only do by proving what 
 passed upon the hearing before the magistrate when the conviction 
 took place. TJie magistrate has nothing to do with the guilt or 
 innocence of the offender, except as they appear from the evidence 
 laid before him. The conviction miist be founded on that evidence 
 alone, and it is impossible to show that there was no probable cause 
 for the conviction without showing what that evidence was. There 
 may be a malicious prosecution without a malicious conviction, and 
 there may be an unfounded conviction by the magistrate without 
 malice (s). 
 
 The question as to whether the magistrate has acted in the 
 discharge of his duty with bond fides, and with reasonable and 
 probable cause, is a question at the trial for the decision ,of the 
 judge, and not for determination by a jury (i). 
 
 A justice's warrant put in by the plaintiff is evidence for the 
 defendant of an information on oath before the justice recited in the 
 warrant. The recital must Idc considered part of the warrant, and 
 admissible evidence for the defendant, when the warrant is produced 
 against him by the plaintiff, for the purpose of showing on what 
 grounds, and in relation to what subject-matter he was acting when 
 he granted it; in the same manner as if a magistrate were to 
 cominit for a felony on his own view, the warrant reciting that he 
 had seen the felony committed when put in evidence against him, 
 would be admissible evidence for him that he had seen the felony 
 committed («). 
 
 Evidence at the trial of actions against constables and officers — 
 Proof of the injury having teen done in execution of a warrant of 
 justices. — By the common law, an of&cer who merely executed the 
 warrant of a magistrate, was answerable for the consequences if 
 the magistrate acted without authority. But the 6th section of 
 24 Geo. 2, c. 44, makes it necessary to demand a copy of the 
 warrant from the officer before he can be sued. If he gives 
 that copy, although the party may be entitled to an action -against 
 the magistrate, yet, if he joins the of&cer in it, the production of 
 the warrant wiU be a protection to the latter, and wiU entitle him 
 to- a verdict. The 6th section is, therefore, obviously intended to 
 protect the officer in those cases only where the justice remains 
 liable. It is necessary, in order to bring the officer within it, that 
 
 I («) Burhy v. Bethune, 5 Taunt. 583. («) Haylock v. Sparh, 22 Law J., M. 
 
 («) Idrly V. Simpson, ante, p. 724. C. 71. 
 
732 ACTIONS AGAINST JUSTICES, CONSTABLES, ETC. [CHAP. XV. 
 
 he should act most strictly in obedience to his warrant: and in 
 that case the statute gives him absolute protection, at whatever 
 time the' suit may he brought against him (x). See ante, p. 720. 
 
 Proof of warrant of justices — Secondary evidence of the contents 
 of a warrant, — "Where the high constable of a borough, who had 
 been served with a subpoena duces tecum, to produce a warrant 
 under which he had made a levy, stated that he had no doubt he 
 had deposited the warrant in his office ; that he had searched for it 
 and could not iind it, and did not know what had become of it, and 
 that the town-clerk had access to his office, and might have taken 
 it away, it was held that secondary evidence might be given of the 
 contents of the warrant {y). 
 
 Proof hy the plaintiff of his demand of the^ perusal and copy of 
 the warrant. — If a plaintiff's attorney, previous to bringing, an 
 action against a constable or officer for an imprisonment or seizure 
 of goods by a constable, makes out two papers in writing precisely 
 similar, purporting to be demands of the perusal and copy of the 
 warrant, and signs both for his client, and then delivers one to the 
 defendant, they are both duplicate originals ; and the one retained 
 by the attorney may be given in evidence at the trial, without 
 proving any notice to produce the one left in the hands of the 
 defendant. " Unless I am mistaken," observes Lord Eldon, C. J., 
 " it is the usual course in actions of this sort to produce a duplicate 
 original ; and the same thing is done with respect to- notices to 
 quit. The practice of allowing duplicates of this kind to Ue given 
 in evidence seems to be sanctioned by this principle, that the 
 original delivered being in the hands of the defendant, it is in his 
 power to contradict the duplicate original by producing the other 
 if they vary " (z). 
 
 Proof hy the defendant of the production of the warrant — Pro- 
 dvetion and perusal of a copy of the warrant. — Where the warrant 
 under which the constable acted was lodged in the hands of the 
 gaoler at the time the plaintiff was taken to prison, and the 
 constable proved that when the demand for the perusal of the 
 warrant was made he produced a correct copy of it, telling the 
 person making the demand that the original was in the hands of 
 the gaoler, and no objection was made to the non-production of the 
 original, it was held that there had been a substantial compliance 
 with the requirements of the statute by the officer, so as to entitle 
 him to the benefit pf the statutory protection. "The conduct -of 
 the agent of the plaintiff," observes Lord Denman, C. J., " was such 
 as to lead to the belief that the delivery of a copy of the warrant, 
 
 (z) Abbott, C..T., Parton v. WilUama, 3 (y) FernUij v. Worthivnton, 1 M & Gr 
 
 B. & Aid. 332. 49}. 
 
 (c) Jory T. Orchard, 2 B. & P 41. 
 
SECT. 3.] DAMAGES EECOVERABLE. 733 
 
 under the circumstances, was all that was required. But for this, 
 steps might have been taken to procure the original ; and the 
 plaintiff cannot therefore rely on its non-production to oust the 
 constable of the protection of the statute " (a). 
 
 Damages recoverable in actions against justices of the peace. — By 
 11 & 12 Vict. c. 44, s. 13, it is enacted, that where the plaintiff in 
 any action against a justice of the peace, for anything done by him 
 in the execution of his office, shall be entitled, to recover, and shall 
 prove the levying or payment of any penalty or money, under any 
 conviction or order, as parcel of the damages he seeks to recover ; 
 or if he prove that he was imprisoned under such conviction or 
 order, and seeks to recover damages for such imprisonment, he 
 shall not be entitled to recover the amount of such penalty or sum 
 so levied or paid, or any sum beyond the sum of 2d. as damages for 
 such imprisonment, or any costs of suit whatever, if it is proved 
 that he was actually guilty of the offence of which he was con- 
 victed, or that he was liable by law to pay the sum he was ordered 
 to pay, and (with respect to such imprisonment) that he had 
 undergone no greater punishment than that assigned by law for 
 the offence of which he was convicted, or for non-payment of the 
 sum he was ordered to pay. 
 
 If a magistrate has committed the plaintiff to prison in a case 
 in which he has no jurisdiction, and the conviction is quashed 
 (ante, p. 723), the magistrate is liable for all the usual and ordinary 
 injurious consequences of a conviction and commitment, such as 
 handcuffing, cutting off the hair, immersion in a bath, payment of 
 penalties, fees, and aU such expenses as are reasonably necessary 
 to enable the plaintiff to procure his liberty; but the magistrate 
 is not responsible for any unnecessary or excessive violence dn the 
 part of the officers executing the warrant (6). 
 
 (a) Athins v. Kilby, 11 Ad..& E. 785. recoverable in actions for felse imprison- 
 (6) Mason T. Barken-, 1 0. & K. 100. ment. 
 And see ante, pp. 607 — 610, as to damages 
 
734 
 
 CHAPTEE XVI. 
 
 OP INJUEIES PROM THE EXERCISE OF STATUTORY POWERS- 
 STATUTORY COMPENSATIONS FOR INJURIES 
 AUTHORIZED BY STATUTE. 
 
 Section I. — Of injuries from the exercise 
 of statutory powers — Exemption of 
 parties from personal liability in re- 
 spect of tilings done under statutory 
 autliority — Negligent exercise of statu- 
 tory powers — Nuisances from tlie negli- 
 gent working of railways — Duties and 
 responsibilities of public boards, trus- 
 tees, and commissioners, surveyors, 
 contractors, and workmen, acting in 
 the exercise of statutory powers — Sur- 
 yeyors of highways — EfEect of clauses 
 in particular statutes exonerating per- 
 sons from all personal liability in re- 
 spect of things done in the bona fide 
 execution of the statute — Responsi- 
 bility of persons for negligence not- 
 withstanding the protecting clause — 
 Right of commissioners, trustees, and 
 public officers to indemnify themselves 
 in respect of costs and expenses out of 
 the public funds they are authorized to 
 administer — When expenses incurred 
 through blunders or negligence may 
 be charged upon a public or trust fund 
 — Injuries from non-repair of autho- 
 rized public works — Creation, of nui- 
 sances in the bonS fide exercise of 
 statutory powers — Pollution of streams 
 and injuries to docks, wharfs, towing- 
 paths, &c. — Power to take lands and 
 streams for public purposes — Licenses 
 to enter upon land to commence the 
 construction of public works — Seizure 
 of goods in the exercise of statutory 
 powers. 
 
 Section II.— 0/ statutory remedies for the 
 
 recovery of compensation for injuries 
 authorized hy statute. — Injuries estab- 
 lishing a right to statutory copipensa- 
 tion — Ascertaining the amount by 
 arbitration — Damages recoverable be- 
 fore justices — Statutory remedy for the 
 recovery of compensation under the 
 Lands Clauses and Eailway Clauses 
 Consolidation Act — Statutory compen- 
 sation to tenants and occupiers of 
 lands taken for public works — Notices 
 by claimants of the nature and extent 
 of the injury, and the amount of com- 
 pensation required — Inquisition of 
 damage — Assessment of damage to 
 which the claimant is not legally en- 
 titled — Removal of the inquisition by 
 certiorari — Actions for the recovery 
 of compensation— Pleadings, defences, , 
 and evidence — Remedy for subsequent 
 unforeseen damage. 
 Section III. — Remedies hy action and ly 
 injunction in respect of imjuries from 
 the negligent doing of things authorized 
 to he done by statute. — Limitation of 
 actions in respect of things done under 
 local and personal statutes — Accrual 
 of the cause of action — Notice of action 
 — Tender of amends — Parties to be 
 made defendants — Pleadings, defences, 
 and evidence — Injunction to prevent 
 unnecessary injury from the exercise 
 of statutory powers — Injunction to re- 
 strain nuisances by pubHo bodies and 
 local boards, and to prevent misuse of 
 their property. 
 
 SECTION I. 
 
 OF INJUEIES FKOM THE EXERCISE OP STATUTOEY POWEES. 
 
 Exemption of persons from personal Uahility in reject of things 
 done under statutory authority, — ^An action will not lie on behalf of 
 
SECT. 1.] INJURIES DONE UNDER A STATUTE. 735 
 
 a plaintiff who has sustained injury from the execution of powers 
 and authorities given by an Act of Parliament, those powers heing 
 exercised with judgment and caution (a). But if the statutory 
 powers are exceeded, or are not strictly pursued (&), or the things 
 authorized to be done are carelessly and negligently done, an action 
 is maintainable for damages (post, s. 3). " If the thing done is 
 withiij the statute, it is clear that no compensation can be afforded 
 for any damage sustained thereby, except so far as the statute itself 
 has provided it ; and this is clear on the legal presumption, that 
 the act creating the damage being within the statute, must be a 
 lawful act " (c). "Where, therefore, the legislature authorized a rail- 
 way company to lay down a railway alongside a public highway, it 
 was held that the . legislature must be presumed to have contem- 
 plated the possibility that the railway would be a nuisance to 
 persons using the highroad, and that such persons must submit to 
 the inconveidence necessarily resulting from the working of the 
 railway (d). And where a railway company was authorized to lay 
 down a railway across a public thoroughfare, and have gates across 
 the highroad to prevent persons from passing along the road at the 
 time when it would be dangerous by reason of trains being near at 
 hand, it was held that a person, who had been delayed and impeded 
 in his journey along the highroad by reason of the necessary closing 
 of the gates, had no right of action against the railway company 
 for the injury he had sustained. Neither has the owner of an 
 estate any right of action against a railway company for laying 
 down a railway across a turnpike road close to the entrance of his 
 estate under the powers of an Act of Parliament, by means whereof 
 he is impeded and hindered in going from and returning to his 
 house, and his horses are frightened and become ungovernable from 
 the noise of the trains (e). But these cases only decide that where 
 the statute expressly contemplates the creation of a nuisance no 
 action wfll lie. "Where, therefore, a canal company were empowered 
 to take the water of a certain brook,, which was then pure, but 
 subsetjuently became polluted by drains, &c., and the company by 
 using and penning back the water of the brook in the canal after 
 it had become so polluted created a nuisance, it was held that they 
 were responsible (/). 
 
 (a) Ld. Traro, Land, and NoHh.-West. («) Duncan v. Mndlaler, 6 CI. & Ktl, 
 
 HaiL Co. V. SradUT/, 3 Mac. & G. 341 ; 908. 
 
 6 EaiL Cas. 551. Caledonian Sail. Co. t. (d) Bex r. Pease, 4 B. & Ad. 42. But 
 
 OgUvy, 2 Macq. So. App. 246. Bowlton not to unnecessary annoyances ; Mam- 
 
 V. Crawther, 2 B. & C. 706. Chester and Altr. Bail. Co. v. FuUarton, 14 
 
 (6) BrmnUnu v. Metrop. Board, <&c., 0. B., N. S. 64. 
 
 31 Law J., C. P. 140. B. v. Darlington (e) Caledonian Bail. Co. t. OgHvy, 2 
 
 Local Board, d;c., 6 B. & S. 515 } 6 ib. Macq. Sc. App. 229. 
 
 562 ; 33 Law J., Q. B. 305 ; 35 ib. 45. (/) Beg. \. Bradford Navigation Co., 
 
 34 Law J., Q. B. 191. 
 
736 NEGLIGENT EXECUTION OF STATUTORY POWERS. [CHAP. XVI. 
 
 It has been held, that if a canal company has been authorized 
 by statute to make and use a canal, and the canal is made in the 
 usual manner, and water leaks out and comes upon the plaintiff's 
 jaremises, without any negligence or breach of duty on the part of 
 the canal company, the company wiU not be responsible in damages 
 for the injury {g) ; but every canal company is bound to maintain 
 and keep its canal in good order, and manage it so that it may not 
 become a source of injury to the adjoining landowners ; and if the 
 water can be prevented from escaping from the canal, it is the 
 duty of the company to adopt the necessary measures for the pur- 
 pose QC). 
 
 Injv/ries from the neffligent execution of statutory powers. — 
 " Powers given by statute," observes Watson, B., " are not to be 
 used to the peril of the lives or limbs of the Queen's subjects. 
 They are to be exercised reasonably, and with due care, so as not 
 by negligence to cause dangers to others." Where, therefore, a 
 canal company was authorized by a statute to intersect highways 
 with their canal, carrying the highway over the canal by means of 
 bridges, it was held that they were bound to erect proper and suit- 
 able bridges, sufficient for all the requirements of an increasing 
 traffic, and were bound to put up proper lights, fences, and guards 
 for the protection of the public ; and that if they erected a swing- 
 bridge, they must use all due and proper precautions for the 
 protection of the public whilst the bridge was open. And if such 
 a bridge is left open by boatmen using the canal, and a passenger 
 traversing the highway falls into the canal and~ is injured, the 
 canal company will be responsible for the injury in an action for 
 negligence (f). 
 
 Where a municipal corporation was authorized by statute to 
 lay down gas-pipes, and an action was brought against them for an 
 injury to the plaintiff's eye, by reason of the negligence of a servant 
 of the corporation, who had been employed by them to chip a gas- 
 pipe, and the corporation pleaded that the injury was done in the 
 execution of their Local Improvement Act, and without any 
 neglect or mismanagement of the defendants otherwise than by 
 their workman, and that the workman employed by them was well 
 skilled and qualified, it was held that the plea was no answer to 
 the action (/). 
 
 If persons authorized by statute temporarily to close a public 
 
 (j) Whitehouse v. Birm. Can. Co., 27 Law J., 0. P. 193. 
 
 Law J., Exoh. 25. (i) MarUey v. St. Helen's Canal and 
 
 Qi) Lawrence v. Ot. North. Rail. Co., EaU. Co., 2 H. & N. 840 : 27 Law J., 
 
 16 Q. B. 653 ; 20 Law J., Q. B. 293. Exch. 164. 
 
 BagnaU v. Lond. cmd North.-West. Sail. (j) Scott v. Mayor, <6c., of Manchester, 
 
 Co., 31 Law J., Exeh. 121. Barber v. 1 H. & N. 59 ; 2 H. & N. 204. 
 Nottingham and Grantham Rail. Co., 33 
 
SECT. 1.] NEGLIGENT WORKING OF UAILWAYS. 737 
 
 higliway have by mistake stopped up the wrong thoroughfare, or if 
 they have continued an obstruction in a public thoroughfare beyond 
 the time authorized by statute, and an adjoining houseliolder or 
 shopkeeper sustains a particular injury beyond what is sustained 
 by the public at large ; if he loses his customers, or his trade is 
 injured by the unauthorized obstruction, there is a remedy by action 
 for damages (k). 
 
 Where a railway company was authorized to make an embank- 
 ment for carrying their railway across a valley, through which 
 the waste waters from the adjoining land flowed away, and the 
 embankment was made without proper openings and culverts for 
 the passage of the waste water, by reason whereof the flood water 
 was penned back after heavy rains and forced upon the plaintiff's 
 land and injured his crops, it was held that the plaintiff was 
 entitled to an action for damages. "It is contended by the 
 defendants," observes Patteson, J., "that they have constructed 
 their railway according to the provisions of their Act of Parlia- 
 ment, and that they are not liable for any consequences which 
 may follow to the damage of the plaintiff; and the question is, 
 whether the company are protected by their Act ? Here the 
 company might, by executiag their works with proper caiition, 
 have avoided the injury which the plaintiff has sustained ; and we 
 think that the want of such caution is sufficient to sustain the 
 action " (J). And this is so, even though the injury might not 
 have happened but for the fault of others in not keeping an outfall 
 for the water of the dimensions which they, and not the defen- 
 dants, were bound to keep it (m). Where a trading company was 
 incorporated by statute for the purpose of manufacturing gas, and 
 was authorized to make gas to light the streets of a town, it was 
 held that the statute did not authorize the company to make gas so 
 as to create a nuisance, and therefore that they were liable, notwith- 
 standing the statute, to an action for damages for making gas so as 
 to create a nuisance (n). 
 
 Nuisances from the negligent working of railways. — It does not 
 foUow that because a railway company is authorized to carry its 
 railway across or alongside a public carriage-road, that it is thereby 
 authorized to conduct its traffic so as to create a nuisance. The 
 company is not responsible for unavoidable noises caused by its 
 
 (Je) WUTces v. Hmigerford Mm-M Co., 42. Grocers' Co. v. Donm, 3 So. 357. 
 
 2 Sc. 462, 463 ; 2 B. N. C. 281. See as Brine v. Ot. West. Ma. Co., 31 Law J., 
 
 to this case, Richet r. Metrop. Bail. Co., Q. B. 101. BagnaU v. Lond. md North- 
 
 L. E., 2 H. of L. Ca. 188. West. Rail. Co., mte, p. 736. 
 
 (I) Lcmrmce v. Gt. North. RaU. Co., 16 (m) Ha/rrison v. Gt. North. Rail. Co., 
 
 Q. B. 653, 654; 20 Law J., Q. B. 293. 33 Law J., Exch. 266. 
 
 Broadbent v. Imp. Gas Co., 26 Law J., («) Broadhent v. Imp. Gas Light Cu. 
 
 Ch. 281. Blagrave r. Waierworhs Co., 1 26 Law J., Ch. 280. 
 i:. & N. 369. Sutton v. Cki/rlce, 6 Taunt. 
 
 BBS 
 
738 NEaLIGENT EXEEOISE OF STATUTOEY POWEKS, [CHAP. XVI. 
 
 engines (o) ; but if the engine-driver unnecessarily puts on the 
 w^histle, or unnecessarily lets off steam, or discharges mud or water 
 when crossing or running alongside a public carriage-road, and by 
 so doing frightens horses lawfully traversing the highway, and 
 causes them to upset a carriage, the railway company will be 
 responsible for the damage done (p). 
 
 So, if the property of the plaintiff adjoining a railway has 
 been set on fire and destroyed by a spark- from a locomotive 
 engine and furnace, which the railway company is authorized by 
 statute to use on their railway, the railway company is pnm4 
 facie responsible for the damage done, for the Acts of Parliament 
 authorizing railway companies to run locomotive steam furnaces 
 through the country, do not authorize them to scatter sparks or 
 lighted coals upon the adjoining land, to the injury of the pro- 
 prietors thereof, if by any means their engines can be prevented 
 from so doing (§'). 
 
 Duties and responsibilities of hoards of public works, trustees, and 
 commissioners — Contractors and workmen acting in the exercise of 
 statutory powers. — Trustees and commissioners of public works 
 having certain public duties to perform under the authority of a 
 statute, incur no personal responsibility for their acts if they act 
 within the strict line of their duty ; but if they order a thing to be 
 done which is not within the scope of their authority (r), or are 
 themselves or by their servants guilty of negligence or misconduct 
 in doing that which they are empowered to do, they render them- 
 selves liable to an action. If an action is brought against con- 
 tractors and workmen who are personally engaged in the execution 
 of public works, under the order or authority of trustees, or a board 
 of public works, and the damage of which the plaintiff complains 
 is the inevitable result of the execution of a public work under 
 statutory authority, the action will fail ; but if the damage arises 
 from the negligent execution of the work, and might have been 
 avoided by the exercise of proper skill and care, the contractors 
 and workmen, or the trustees, &c., as the case may be (see infra), 
 wiU be personally answerable for the damage done (s). 
 
 Where an action was brought by the plaintiff against one of several 
 trustees under a turnpike act, who had joined in an order made by 
 the trustees for cutting a drain through certain lands, whereby 
 considerable damage had been done to the plaintiff's estate, and it 
 
 (o) Rex V. PeaM, 4 B. & Ad. 30. (r) Jleg. \.L<mgton Gas Co., 29 Law J., 
 
 (p) Mcmch. and Altnng. Mail. Co. v. M. C. 118. 
 
 Fullarton, 14 C. B., N. S. 54. (s) Jones v. £.irdi 5 B. & Aid. 837. 
 
 ((?) Freennantte v. Gt. Nm-th. Mail. Co., Clothier v. Webster, 12 B N S 790 • 
 
 31 Law J., C. P. 12. Dimmoch v. NoHh 31 Law J., C. P. 317 •»••_. 
 Staff. Mail. Co., 4 F. & F. 1058. See ante, 
 p. 248. 
 
SECT. l.J BY TEU6TEES, COMMISSIONERS, ETC. 739 
 
 appeared that the trustees had acted in the execution of statutory 
 powers, in the best mode they could, under competent advice, and 
 in the faithful execution of the duties imposed upon them by the 
 Legislature, it was held that they were not personally responsible for 
 the damage done (t) ; but where the act authorized to be done by the 
 trustees is done. so carelessly and improperly that the careless or 
 improper manner in which it is done either increases the damage 
 or creates it, then the trustees will be liable, if the work has been 
 done by their own servants, or persons acting under their immediate 
 orders. Where the trustees of a public road covered over an open 
 di'ain by the roadside, and thereby caused an accumulation of 
 water in the road, which flooded the adjoining land, and ran into 
 and swamped the plaintiff's colliery, it was held that the trustees 
 were responsible in damages for the injury (u). 
 
 If the act done is ta itself lawful, it can only become unlawful 
 in consequence of the negligent and improper manner in which it 
 is executed (v). 
 
 When commissioners intrust the execution of public works to 
 contractors, engineers and surveyors, who select their own workmen 
 for the execution of the work, the commissioners are not personally 
 liable for the mistakes or negligence of the contractors, engineers, 
 or workmen (x). So trustees of turiapike-roads, in whom the soil 
 of the highway is not vested, and who are not in possession thereof 
 (ante, p. 282), are not personally responsible for the negligence of 
 contractors and those employed by the contractors in the repair 
 of the roads, unless they personally interfere in the manage- 
 ment of the works (y). But if trustees and commissioners of 
 public works, acting within their jurisdiction, and exercising 
 powers given them by Act of Parliament, act wantonly and 
 oppressively, and do unnecessary injury to individuals, they are 
 personally responsible in damages to the parties injured. Thus, 
 where an action was brought against certain commissioners of 
 pavements for so raising a pavement as to obstruct the plaintiff's 
 doors and windows, and it appeared that the commissioners 
 were acting in the exercise of statutory powers, but that proper 
 advice had not been taken, and the works were improperly 
 executed, and the injury done to the plaintiff might have been 
 readily avoided by laying down the pavement in a proper manner, 
 it was held that the commissioners were personally responsible 
 
 (i) Sutton V. Clarhe, 6 Taunt. 42. (v) Boulton v. Orowther, 2 B. & C. 709. 
 
 Gi-ocers' Co. v. Donne, 3 So. 357 ; 3 B. N. Governor, Sc, of Oast Plate v. MereddtA, i 
 
 0. 34. Herring v. Metrop. Board of T. B. 796. 
 
 Worhs, 34 Law J., M. C. 224. Coe v. (x) See arate, pp.. 413-415. 
 
 Wise, post, p. 7 iO. (y) Humfreijs v. Mewrs, 1 M. & Ry. 
 
 (tt) Whitehouse v. FeUowes, 30 Law J., 187. Human t. Findlater, 6 CI. & Pin. 
 
 C. P. 305. 89*- 
 
 B B s 2 
 
740 NEGLIGENT EXERCISE OF STATUTOEY POWERS. [CHAP. XVI. 
 
 in damages for the nuisance tliey liad unnecessarily and wantonly 
 created {z). 
 
 Public commissioners and trustees who continue in the actual 
 occupation of public works constructed and maintained for the 
 use of the public, and in receipt of the tolls levied for the use 
 thereof, are bound, as we have seen, to maintain and manage their 
 property so that it may not become a source of danger to those who 
 are invited to use it (a). But if they have demised the property 
 to a lessee, who is in the actual use and occupation of it, and in 
 receipt of the tolls, it is not then the duty of the commissioners or 
 trustees to maintain the works in a safe and secure state, unless the 
 particular statute under which they act imposes that duty upon 
 them (&). Whenever an Act of Parliament imposes upon com- 
 missioners, or tipon any public body, the duty of maintaining or 
 repairing a highway or any public work, and special damage is 
 sustained by a particular individual from the neglect of the public 
 duty, an action for damages is maintainable against such com- 
 missioners or public body (c), unless there are provisions in the 
 statutes creating them for limiting their liability (cf), or the duty 
 of repairing the highway, &c., is not absolute (e) ; • the rule being, 
 that in the absence of something to show a contrary intention, the 
 Legislature intends that the body, the creature of the statute, shall 
 have the same duties, and that its funds shall be rendered subject 
 to the same liabilities, as the general law would impose on a private 
 person doing the same things (/). And this, whether they have or 
 have not funds at their disposal for effecting the repairs ; though if 
 there be no funds, there may be a difficulty in" the way of the 
 plaintiff's getting his damages {g). 
 
 "Whenever injury is sustained from the non-repair of water-pipes, 
 fire-plugs, drains, or works erected for the use or accommodation of 
 the public, the liability to make compensation for the injury arising 
 from such neglect rests with the parties upon whom the duty of 
 repairing is imposed (A). 
 
 Surveyors of highways and county hridges are not responsible in 
 damages to travellers who have sustained injury from the highway 
 
 (z) Leader v. Moxon, 2 W. Bl. 926 ; 3 (/) Per Blactburn, J., Meirsey Dock 
 
 Wils. 461. Trustees v. Gibhs, L. R., 1 App. Ca. 110 
 
 (a) Gihbs v. Trvst. lAv. Docks, 27 Law (g) Sm-tnda\.Byde ImprmiementComr- 
 
 J., Exch. 321 ; 3 H. & N. 164 ; 35 Law J., missioners, 33 Law J., Q. B. 39 £ush v 
 
 Exch. 225 ; ante, pp. 186, 210. MoHm, 33 Law J., Exch. 17. ' Okrhv v 
 
 (6) Walker v. Goe, 3 H-. & N. 395 ; 27 Jtyde Commis., 33 Law J., Q B 296' 
 
 Law J., Exch. 427. Ooe v. Wise, L. E., 1 Q. B. 711. If thev 
 
 (c) Gibis V. Trustees of Uverp. Docks, 35 are ia possession of land, it may be taken 
 
 Law J.,Exch. 225; L. E., lApp.Ca. 93. under a writ of elegit, WorraU Water- 
 
 .(d) Young v. Davis, 31 Law J., Exch. works Co. t. Lloyd, L. E., 1 C. P. 719. 
 
 ^^f\ tjt; ,t ^tt ... ^ ^ ('') BayUy v. Wohierhaminon Water- 
 
 (e) Wilson T. Mayor of Halifax, L. E., works Co., 6 H. & N. 241 ■ 30 Lnw T 
 
 3 Exch. 114. Exch. 57. ^ , ou x,aw j. 
 
SECT, l.j SUKVEYOKS OF HIGHWAYS, ETC. 741 
 
 or bridge being out of repair (*). Nor is a local board in whom the 
 higbways have been vested by the Public Health Act, 1848, 11 & 12 
 Vict. 0. 63 (see ss. 68 & 117), so liable, i.e., for mere misfeasance 
 in omitting to repair, simply as surveyors (/ ). But a local board 
 of health discharging the duties of surveyor of highways 
 under s. 117 of 11 & 12 Vict. c. 63, is liable for the negligence of 
 themselves or their servants in leaving heaps of stones, &c., 
 unlighted at night, though it seems doubtful whether they would 
 be, if the negligence was that of their surveyor appointed under 
 s. 37, as he is not removable at their pleasure, but only on the 
 approval of the General Board of Health (k). The proper remedy 
 for the non-repair of a highway is by indictment against the parish, 
 but a surveyor of highways is responsible, like any other person, 
 for any negligent act of his own, creating a nuisance, and causing 
 injury to another {ante, pp. 411-413). The only legitimate way in 
 which a parish can do an act is by convening a vestry, and duly 
 conducting the proceedings therein to their legitimate termination, 
 by show of hands, or by poll, when a poll is duly demanded. If, 
 therefore, a poll is demanded and refused, and a resolution carried 
 by show of hands, the resolution so carried cannot be safely acted 
 upon as being the resolution of the parish, for a ratepayer has a 
 right, at common law, to obtain the sense of the parish by means 
 of a poll, and this right cannot be taken away by any general 
 words in a statute respecting the taking the sense of a vestry (J). 
 
 Effect of clauses in -particular statutes exonerating persons from 
 all personal liability in respect of things done in the hand fide 
 execution of the statute. — By s. 140 of the Public Health Act, 1848 
 (11 & 12 Vict. c. 63), it is enacted, that no matter or thing done 
 by the local board of health, nor by any superintending inspector, 
 or any member -of the local board, or by the officer of health, clerk, 
 surveyor, inspector of nuisances, or other officer or person acting 
 under the direction of the local board, shall, if the matter or thing 
 were done bond fide for the purpose of executing the Act, subject 
 them, or any of them personally, to any action, liability, claim, or 
 demand whatsoever, and any expense incurred by such local board, 
 member, officer of health, &c., acting as last aforesaid, shall be borne 
 and repaid out of the general district rates levied under the 
 authority of the Act. 
 
 Similar provisions are to be found in other statutes respecting 
 matters or things done by commissioners, or by any clerk, surveyor, 
 
 (i) Younff r. Darns, 31 Law J., Exch. (j) Gibson t. Mayor of Preston, L. E., 
 
 250 • 2 H. & C. 197. M'Kinnon y. Pen- 5 Q. B. 218. 
 
 son 9 Exch. 609. See Parsons T. St. (h) Foreman y. Mayor, d-c, of Canter- 
 
 Matthews, Bethnal Green, L. E., 3 C. P. hwy, L. R., 6 Q. B. 214. 
 S6 V (1) White Y. Steele, 12 C. B., N. S. 408; 
 
 31 Law J., C. P. 265. 
 
742 NEGLIGENT EXERCISE OP STATUTOEY POWERS. [CHAP. XVI. 
 
 or other officer or person acting under the direction of sucli 
 commissioners, and, in some cases, the saving clause is added, 
 " unless the action, suit, damages, costs, and charges have arisen 
 in consequence of wilful neglect or default on the part of the 
 commissioners, or person incurring the same." 
 
 The effect of clauses of this sort is not to leave a complaining 
 party remediless, but to oblige him to bring his action against the 
 public board, or against the commissioners as a body, in the name 
 of their clerk, in which case the liability would not be personal ; 
 and any damages that might be recovered would be payable out of 
 the funds at their disposal under the provisions for the payment of 
 damages and costs, recovered in any such action against the clerk (m). 
 Thus, where certain commissioners for the improvement of a town, 
 acting under the powers of the Public Health Act, made a new 
 sewer communicating with the plaintiff's drain, and neglected to 
 take proper precautions to prevent the plaintiff's premises from 
 being flooded by storm waters, and by inundations from an adjoining 
 river, which communicated with the new sewer, it was held that 
 the plaintiff was entitled to maintain an action against the clerk 
 of the commissioners, for the recovery of all the damage he had 
 sustained by reason of the negligence of the commissioners, and 
 that these damages were to be paid out of the rates levied under 
 the Act (m). 
 
 But protecting clauses of this sort do not exempt contractors 
 and workmen from personal liability in respect of the negligent 
 performance of work intrusted to them to execute. Where there 
 is no negligence, a person doing the act in obedience to the 
 commissioners or the board would be properly absolved, and the 
 board would have to make compensation ; but if he has been guilty 
 of negligence in doing the act, and damage ensues, he is personally 
 liable for the consequences, notwithstanding the statute, for he 
 cannot pretend that negligence was ordered or directed by the 
 commissioners or board (o). 
 
 Bight of commissioners, trustees, and piiblid offlcers to indemnify 
 themselves in respect of the costs and expenses they incur out of the 
 public funds they are authorized to administer. — ^Wherever a duty is 
 imposed by statute upon public officers, and costs incidentally arise 
 in questioning the propriety of acts done in the fulfilment of that 
 duty, the commissioners and public officers have a tight to defray 
 
 (m) Ward t. Lee, 7 Ell. & Bl. 430; 26 27 Law J., Exch. 367. Allen y. Bay- 
 
 Law J., Q. B. 142. Southampton and ward, 7 Q. B. 960. Ot. West. Sail. Co. of 
 
 ItcMn Bridge Co. v. Southamptoh Local Canada t. Braid, 1 Moore'a P C Ca 
 
 Boa/rd, tt-c, 8 Ell. & Bl. 801, 812; 28 N. S. 101. 
 
 Law J., Q. B. 41 ; post, e. 2. Bush v. (o) Arthy v. Coleman, 6 W. E. 35 : 30 
 
 Martmante,^.m. Law I.E. 101. Newton v. MUs, 2i haw 
 
 (») Ruck T. Wilham, 3 H. & N. 308 ; J., Q. B, 337. ■ 
 
SECT. 1.] EECOUPING EXPENSES. 743 
 
 those expenses out of the funds they are authorized to administer, 
 and they may in general levy a rate to defray such expenses {p). 
 And wherever necessary expenses are incurred in the execution of 
 a trust, or in the performance of duties thrown on any persons, and 
 arising out of the situation in which they are placed, such persons 
 are entitled, without any express provision for that purpose, to 
 make the payments required to meet those expenses out of the 
 funds in their hands belonging to the trust {q). But the expenses 
 raust be such as have been legitimately and properly incurred by 
 the persons intrusted with the administration of the fund in the 
 loTid fide and necessary discharge of the duties imposed upon 
 them (r). If they embark in reckless litigation, or exceed the 
 powers and authorities conferred on them by the statute, although 
 with the best intentions, and for the pxiblic benefit, or are guilty of 
 any wilful personal misconduct in incurring the expenses they have 
 incurred, they cannot charge them on the public funds at their 
 disposal, for funds raised under the authority of a statute are liable 
 only for acts done strictly in pursuance of the directions of that 
 statute, and cannot be applied in satisfaction and discharge of 
 liabilities arising from wilful misconduct, gross mistake, or wilful 
 neglect of duty. " Such damages are to be paid out of the pocket 
 of the wrong-doer, and not from a trust-fund " (s). 
 
 When expenses incurred ilirovgh Uunders m- negligence may he 
 charged upon a public or trust-fund. — In respect of aU acts lond 
 fide done by commissioners or local boards acting in the execution 
 of the Public Health Act and divers statutes for the improvement 
 of towns and the construction of public works, but erroneously 
 done, and causing damage to others, the commissioners or members 
 are liable, and the expenses they are pHt to in consequence thereof 
 they have authority to discharge out of the public funds. " It is 
 said," observes Lord Campbell, "that it is a great hardship on the 
 ratepayers to be made to pay for the blunders or negligence of 
 the board. That objection, however, seems to be met by the 
 consideration that the members of the board are elected by the rate- 
 payers, and are, therefore, their representatives ; and there would be 
 greater injustice, perhaps, if it were held that persons injured by 
 the negligence or wrongful abts of the board had no remedy " (;;). 
 
 Creation of nuisances in the iondfide exercise of statutory powers.— 
 "Where certain contractors, acting tinder the directions of the 
 
 (p) Hex V. Commismners, Sc, for W Durwm y MndMe^GC\.& Fin. 
 
 Tml EwmUts, 1 B. & Ad. 232. Be^ r. 908 Me^t s SospUal Feofees r. Ross, 
 
 I- f 79(1 12 CI. & xin. olo. 
 
 ussex, (mK,^.i^^. Norwich, 2 (0 Southampton md ItcUn Bridge Co. 
 
 ^i to^^i u2.. tayT^clof J 'Ltr^v^Loc.l Bo«.d 8 EU, & Bl. 
 
 iJoctofer, 30 Law J., C. P. 169. 812 ; 28 Lay? J., Q. B. 41. 
 
 (r) Reg. \. Mayor of SheffM, L. B., 6 
 Q. B. 652. 
 
744 NEGLIGENT EXEECISE OF STATUTORY POWEKS, [CHAP. XVI. 
 
 Metropolitan Commissioners of Sewers, altered a sewer com- 
 municating with the plaintiff's drain, and thereby caused a nuisance 
 to the plaintiff, for which he brought an action against the 
 contractors, and the jury, in answer to a question left them by the 
 judge, found that the contractors had, in making the sewer, acted 
 bond fide under the orders and directions of the commissioners, it 
 was held that the contractors were absolved from all personal 
 liability for the nuisance. " The object of the Legislature," observes 
 Wightman, J., " seems to have been in such a case not to leave the 
 complaining party remediless, but to oblige him to bring his action 
 against the commissioners as a body in the name of their clerk, in 
 which case the liability would not be personal ; and any damages 
 that might be recovered would be payable out of funds at their 
 disposal under the provisions of the 125th section, which provides 
 for the payment of the damages and costs recovered against the 
 clerk in any such action " (m). Here there was no evidence of any 
 negligence on the part of the contractors, the sewer having been 
 properly constructed by them under the orders of the commissioners, 
 and the nuisance to the plaintiff being the natural and necessary 
 result of the making of the sewer. 
 
 Whenever the mischief is the natural and necessary result of 
 the doing of the act ordered to be done, and not the result of some 
 collateral or negligent act not ordered, the maxim respondeat superior 
 applies (i;). 
 
 Pollution of streams and injuries to docks, wharfs, towing-paths, 
 cfcc, in the exercise of statutory powers. — By the Public Health Act 
 (11 & 12 Vict. c. 63), s. 145, it is enacted, that nothing contained 
 in the Act shall be construed to authorize a local board of health 
 to use, injure, or interfere with any watercourse, stream, river, 
 dock, basin, wharf, quay, or towing-path, in which the owner or 
 occupier of any lands, mills, mines, or machinery, or the proprietors 
 or undertakers of any canal or navigation, shall or may be interested, 
 without consent in writing first had and obtained. Where, there- 
 fore, a local board of health constructs drainage works and pours 
 the filth from public sewers into streams or watercourses running 
 through the private grounds of adjoining landowners, they cannot 
 shelter the ratepayers or the public funds at their disposal from the 
 consequences of the creation, of the nuisance by showing that they 
 acted in the exercise of the statutory powers conferred upon them (x). 
 Generally speaking, where local boards are authorized and required 
 to execute drainage works in a particular district, and to make 
 
 (ti) WoA-d V. Lei, 7. Ell. & Bl. 430. Jur. N. S. 180. Manchester, Sh^., tSic, 
 
 (v) Sole X, SiUinghourne, die. Hail. Co., Sail. Co. v. Worhsop Board of Health, 23 
 
 30 Law J., Eioh. 81. Beav. 198. 
 (x) Att.-Qen. v. Luton Local Board, 2 
 
SECT. 1;] CREATION OP NUISANCES. 745 
 
 compensation to parties sustaining injury therefrom, they have no 
 power to collect together the sewage and pour it into streams 
 which were previously pure, so as to create a nuisance and deterio- 
 rate the value of the adjoining land. A power to take possession 
 of streams, and to cover over open watercourses for draiaage 
 purposes, and to give compensation therefor, gives to the hoard no 
 power by implication to pollute water which was previously sub- 
 stantially pure {y). 
 
 Although the inhabitants of a town may have a right to open 
 ' their sewers into a river in the natural course of drainage, this does 
 not entitle them to foul the water with the contents of water- 
 closets, and convert a sweet and limpid stream into a stinlcing 
 sewer. The ordinary right of sending house-drainage into streams 
 and natural watercourses, is like the right of drainage which exists 
 in the case of adjoining mines upon different levels. " From the 
 necessity of the case, every owner of a mine must submit to the 
 inconvenience of having the water of an adjoining mine upon a 
 higher level descend upon his mine, so long as it descends in the 
 natural course of drainage (ante, p. 59) ; but that does not entitle 
 the o-wner of the adjoioing mine to throw upon him, in some other 
 and more objectionable way, water which might be allowed to 
 descend upon him in a modified form, not occasioning the same 
 amount of injury to his property " (s). 
 
 Creation of nuisances in the exercise of the statutory powers con- 
 tained in the Towns Improvement Clauses Act. — By 10 & 11 Vict, 
 c. 34, s. 24, power is given to commissioners and public bodies 
 intrusted with the execution of the powers of the Act, to construct 
 sewers for the drainage of towns, and to carry such sewers through 
 inclosed and other land, making full compensation to the owners 
 and occupiers thereof, and to cause such sewers to empty themselves 
 into the sea or any public river, or to cause the refuse from such 
 sewers to be conveyed to a convenient' site for sale, for agricultural 
 or other purposes, but so that the same shall in no case become a 
 nuisance. And by s. 107 it is further enacted, "that nothing in the 
 Act contained shall be construed to render lawful any act or omis- 
 sion on the part of any person which is, and but for the Act would 
 be deemed to be, a nuisance at common law." If, therefore, com- 
 missioners, trustees, or any body corporate, intrusted with the 
 exercise of the powers of this statute, create a nuisance by their 
 system of drainage, they may be restrained by injunction from 
 continuing the nuisance (a). 
 
 (y) Oator V. Lewisham, Boa/rd of Works, (a) Att.-Gen. v. Sorough of Birming- 
 
 34 Law J., Q. B. 75. liam, 4 Kay & J. 543. Att.-Gen. v. Cor- 
 
 (z) Wood, V.-C, Att.-Gen. v. Borovgh poration of Leeds, L. R., 5 Ch. App. 583. 
 of Birmingham, 4 K. & J. 542. 
 
746 INJURIES AUTHORIZED BY STATUTE. [CHAP. XVI. 
 
 The Metropolis Local Management Act, 18 & 19 Vict. c. 120 (&), 
 provides (s. 86), that where any work by 'any vestry or district 
 board, done, or required to be done, in pursuance of the provisions 
 ot the Act, interferes with, or prejudicially affects, any ancielit mill, 
 or any right connected therewith, or other right to the use of water, 
 full compensation shall be made to all persons sustaining damage 
 thereby, in manner thereinafter provided ; or it shall be lawful for 
 the vestry or board, if they think fit, to contract for the purchase 
 of such mill, or any such right connected therewith, or other right 
 to the use of water. If any vestry or district board, in the exercise 
 of the powers conferred upon them by this statute, cause work to 
 be done which is negligently and unskilfully done, and damage is 
 thereby caiised to another, it is a proper case for an action or an 
 injunction ; but if the work is properly done, and the injury is the" 
 natural and necessary result of the doing of the work,' it is then a 
 proper case for the. statutory compensation (c). 
 
 Of the power to take lands and streams for public purposes. — By 
 tlie Waterworks Clauses Act, 10 & 11 Vict. c. 17, it is enacted (s. 6), 
 that where by the special Act the undertakers shall be empowered 
 to take or use any lands or streams otherwise than with the consent 
 of the owners or occupiers thereof, they shall, in exercising the 
 power so given to them, be subject to the provisions and restrictions 
 contained in the Lands Clauses Consolidation Act, 1845, and shall 
 make to the owners and occupiers of, and all other parties interested 
 in, any lands or streams taken or used for the purposes of the special 
 Act, or injuriously affected by the construction or maintenance of 
 the works thereby authorized, or otherwise by the execution of the 
 powers thereby conferred, full compensation for the value of the lands 
 and streams so taken or used, and for all damage sustained by such 
 owners, occupiers, and other persons by reason of the exercise, as to 
 such lands and streams, of the powers vested in the undertakers, 
 the amount, except where otherwise directed, to be determined in 
 the manner provided by the Lands Clauses Consolidation Act. 
 
 If, therefore, a company, under the powers conferred by this 
 statute, takes the whole stream, it must pay the whole price of it ; 
 if it injuriously affects it, compensation must be made in the 
 ordinary way. Before an entire stream can be taken, the company 
 must proceed to have the amount of compensation assessed, and 
 paid or deposited, or security given, in the mode prescribed by the 
 statute; and the court will by injunction restrain them from 
 diverting the stream iinless they have complied with the statutory 
 requirements (d). 
 
 {b) See 25 & 26 Vict. e. 102. HaU. Co., 1 Euss. & M. 181. 
 
 (c) Stainton v. WooVrycli, 23 Beav, 233 ; (d) Ferrand v. Ciyrj^ration of Brad- 
 
 6 Law J., Ch. 300. Cotrts v. Clarence ford, 21 Beay. 412. 
 
SECT. l.J SEIZURE OF GOODS AT CUSTOM-HOUSE. 747 
 
 If a company or public board, acting under the powers of the 
 Lands Clauses Act, require only part of a building, &c., they may 
 be compelled to take the whole, and have the value thereof assessed, 
 and paid into court before they take possession of part (e). AIL 
 fixtures, whether they be tenant's or landlord's fixtures, form part 
 of the premises which the company may be required to value and 
 take (/). 
 
 Licenses to enter upon land autliorized to he taken for public works. 
 — Where the owners and occupiers of land authorized to be taken 
 for public works have licensed the entry of a public board or com- 
 pany for the purpose of commencing the construction of the works, 
 they cannot revoke the consent once given, and treat their licensees 
 as trespassers, but must resort to the statutory remedy for compen- 
 sation {g). 
 
 Seizure and detention of goods iy custom-house officers acting in 
 the execution of statutory powers. — Eevenue-officers, acting under an 
 authority given them by statute to examine goods and merchandise, 
 in order to ascertain the amount of duty payable upon them, or 
 whether they are goods that may lawfully be imported, are not 
 liable to an action for the seizure or the unlawful detention of the 
 goods, unless the goods are taken and kept an unreasonable time, 
 and there has been a clear abuse of authority on the part of the 
 officers. If they, fairly and honestly believing that goods are liable 
 to seizure, take and detain them, and the decision of the matter is 
 referred to the proper authorities, they are not responsible for the 
 detention of the property, although it may turn out that their 
 judgment in the matter was erroneous, and that the goods ought to 
 have been examined and passed (h). By the 8 & 9 Vict. c. 87, 
 s. 116, it is enacted, that if any information or suit shall be 
 commenced or brought to trial on account of the seizure of any 
 vessel, boat, or goods, &c., as forfeited by any act relating to the 
 customs, wherein a verdict shall be found for the claimant, and it 
 shall appear to the judge or court, before whom the same shall 
 have been tried, that there was a probable cause of seizure, such 
 judge or court shall certify on the record that there was such pro- 
 bable cause, and in such case the person making the seizure shall 
 not be liable to an action on account of such seizure. 
 
 (e) Goes v. Lmd., Chat., dkc, Sail. Co., Kna^p v. £ond., Chat, and Dover Sail. 
 30 iaw J., Ch. 603. Co 32 Law J Exch 236. 
 
 ( f) Gibson \. Hammersmith Bail. Co., (h) Jacolsolm t. Blake, 7 Se. N. E. 
 32 Law J., Ch. 337. 784 ; 13 Law J., C. P. 89. As to deten- 
 
 (g) Doe V. Leeds and Bradford Bail. tion for freight, nee 22 & 23 Vict. c. 37, 
 Co., 16 Q. B. 796 ; 20 Law J„ Q. B. 486, s. 2. 
 
748 INJURIES AUTHOEIZED BY STATUTE. [CHAP. XVI. 
 
 SECTION II. 
 
 OF STATUTORY REMEDIES FOR THE RECOVERY OF COMPENSATION FOR 
 INJURIES AUTHORIZED BY STATUTE. 
 
 Injuries establishing a right to statutory compensation. — ^Where 
 land has been taken under the provisions of the Lands Clauses 
 Consolidation Act (8 & 9 Vict. c. 18), and the usual warrant has 
 been issued to assess compensation for the land taken, and for 
 severance, and for the land being otherwise injuriously affected, 
 the claimant, the land-owner, is entitled to compensation in respect 
 of the residue of his land being injuriously affected by the 
 execution of the works, although the injury may be of such a 
 nature that an action for damages would not have been maintain- 
 able in respect of it, for where the owner is turned out of his 
 property by a company under compulsory powers of purchase, the 
 company is bound to compensate him for all the loss occasioned by 
 .the expulsion, as in trespass for expiilsion (i). But where no land 
 has been compulsorily taken from the plaintiff under statutory 
 powers, but the injury complained of has arisen from something 
 done on land which has not been taken by them from the claimant, 
 and the injury would not have formed a ground of action against 
 an ordinary proprietor, if done by him, such injury cannot' be 
 made a ground for compensation under the statute (/). 
 
 Where, therefore, the New Eiver Company, in the exercise of 
 its statutory powers, constructed some underground works, on their 
 own land which drew off the water from the plaintiff's well, it 
 was held that the plaintiff was not entitled to compensation under 
 the statute, as the company, in drawing off the water from the 
 well, had not infringed any right of the plaintiff, or done anything 
 which would have rendered them liable to an action at common 
 law, independently of the statute (k). A similar decision has been 
 made under the Public Health Act (11 & 12 Vict. c. 63), where the 
 local board of health constructed a sewer, which caused the 
 ■ plaintiff's houses, which, though erected on old foundations, had 
 within twenty .years been built of .a much more substantial 
 
 (t) Julh V. HuU Dock Co., 9 Q. B. 457. post, p. 754. Citif of Glasgow Union Sail. 
 
 Re StockpoH, &<:., Bail. Co., 33 Law J., Co. v. Hunter, L. S,., 2 Sc. App. 78. 
 
 Q. B. 251. See Duke of JBucdeuch v. Q:) New River Co. v. Johnson, 29 Law 
 
 Metrop. Boarrd of Works, L. R., 3 Exeh. J., M. C. 93. Reg. v. MeWoj). Board, &e., 
 
 307. 5 Exeh. 221 ; 5 Bng. & Ir. App. 418. 32 Law J., Q. B, 105. 
 
 {j) See Ricket v. Metrop. Rail. Co., 
 
SECT. 2.] STATUTORY COMPENSATION. 749 
 
 character, to crack (I). So, where the tenant of a public-house 
 claimed compensation for the loss of profits he had incurred by- 
 reason of a railway company having, under statutory powers, 
 purchased and pulled down the adjoining houses, it was held that 
 he was not entitled to compensation, for if any private person had 
 purchased and puUed down the adjoining property, no action would 
 have lain against them (m). 
 
 Of ascertaining the amount of statutory damage lyy arbitration. — 
 Most of the Acts of Parliament authorizing the execution of 
 public works which may be productive of injury to private indi- 
 viduals, direct compensation to be paid to aU persons who have 
 suffered injury from the execution of the authorized works, and 
 direct the amount of compensation in certain cases, if the amount 
 is disputed, to be referred to arbitration. The reference to arbitra- 
 tion is in many cases made compulsory, for if one party refuses to 
 appoint an arbitrator the other may do so alone. But that is con- 
 fined to disputes as to amount, and not to the question of liability 
 to make compensation. If that is denied altogether, the question 
 must be referred to the regular tribunals (?i). An arbitrator has no 
 jurisdiction to determine the question of liability, or any question 
 of damage distinct from the damage naturally resulting from the 
 exercise of the statutory powers, unless the parties mutually 
 consent to refer such matters to him to decide upon(o). The 
 award, therefore, merely settles the amount to be recovered, and if 
 the defendant refuses to pay on the ground that he is not liable, 
 the plaintiff must enforce his claim by action, and not by an 
 application to the court to enforce the award (p). 
 
 The Public Health Act, 1848, 11 & 12 Vict. c. 63, s. 144, gives 
 a right of full compensation out of the general or special district 
 rates to aU persons sustaining damage by reason of the exercise of 
 any of the powers of the Act, and directs that in case of dispute 
 as to the amount, the same shaU be settled by arbitration (q), or be 
 recovered in a summary way before justices, if the sum claimed 
 does not exceed 201. Under the powers of this statute a local 
 board made a sewer, and in so doing cut a ti-ench through the 
 claimant's land, and the local board contended that no damage had 
 been thereby done to the claimant, but the claimant contended 
 that he had sustained damage, and was entitled to compensation, 
 and it was held that this clearly was a dispute as to the amount of 
 
 (Q HaU V. Mayor of Bristol, L. E., 2 (o) Se Byles, 11 Exch. 464. Brandon 
 
 C. P. 322. '^^ Brandon, 34 Law J., Oh. 333. 
 
 {m) Reg. v. Vaughan, 38 Law J., M. (p) Newboldv. Mebrop. Bail. Co., 14 
 
 C. 49 ; L. R. 4 Q. B. 190. C. B., N. S. 405. Reg. t. Land, and 
 
 (n) Reg. v. Metrop. Commis. of Sewers, North-West. Bail. Co., post, p. 756. 
 
 1 El & Bl. 702. (?) See Reg. v. WaUasey Local Board, 
 
 38L. J.,'Q. B. 217. 
 
750 INJURIES AUTHORIZED BY STATUTE. [CHAP. XVI. 
 
 compensation to be settled by arbitration, and that if the arbitrator 
 found the damage nominal or inflnitesimaUy small, he might iind 
 the amount of compensation to be nil (r). But when there is a 
 dispute as to whether the act complained of was done by the local 
 board, or as to some matter of fact which would, if found for the 
 local board, show that there was no liability to make compensation, 
 then the dispute is not within the jurisdiction of the arbitrator. 
 
 Jurisdiction of the arbitrator. — Parties cannot attend before an 
 arbitrator and go into the inquiry, reserving to themselves the 
 right to contest the jurisdiction of the arbitrator, on the ground 
 that he has not complied with some bare formality, such as the 
 enlargement of the time for making the award. If, therefore, they 
 attend in such a case under protest, the protest is of no avail. 
 But where the objection is a substantial one, — that the arbitrator 
 has no jurisdiction at all over the subject-matter of the inquiry, 
 and no power to decide upon it, e.g., if the time for making his 
 award has expired, or he has misconducted himself, it is other- 
 wise (s). 
 
 Damages recoverable before justices of the peace and not by action. 
 -—When an Act of Parliament, authorizing the doing of an act 
 which has been productive of injury to another, provides, that if 
 the parties cannot agree upon the amount of compensation, the same 
 shall be settled and ascertained by order of one or more justices of 
 the peace, &c., the parties are confined to the specific remedy given 
 by the statute, and have no choice of any other tribunal to settle 
 the amends in; any case within the Act {t) ; but if the powers of 
 the Act have been exceeded, or the thing authorized to be done has 
 been negligently or carelessly done, and the damage is the result of 
 negligence, then an action for damages must be brought, and the 
 matter is not within the cognizance of the statutory tribunal 
 appointed for settling the amount of statutory compensation (m). 
 Under the Towns Improvement Clauses Act (10 & 11 Vict. c. 34), 
 the Railway Clauses Consolidation Act (8 Vict. c. 20), the Metro- 
 polis Local Management Act (18 & 19 Vict. c. 120), and other 
 statutes authorizing the construction of public works, it is provided 
 that certain statutory expenses therein specified may be recovered 
 as damages (x) ; and by other sections of these statutes it is provided, 
 that when damages are to be paid they are to be ascertained before 
 justices. These clauses creating the right and providing a specific 
 remedy, impose upon the parties seeking to avail themselves of the 
 
 (r)Bradbyv. Southampton, Local Board, 790; 31 Law J., C. P. 316. Whiteioiise 
 
 i El. & Bl. 1018. V. Felhwes, ante, p. 739. 
 
 («) Eingland v. Lowndes, 33 Law J., (a;) See Herrmrf v. Mdrop. Boajrd of 
 
 C. P. 30 ; S. C. in error, p. 337. Works, 34 Law J., M. C. 224, as to da- 
 
 (t) Boyfield v. Porter, 13 East, 208. mage by obstructing access to house. 
 
 («) Clothier v. Webster, 12 C. B., N. S. 
 
SECT. 2.] STATUTOKY COMPENSATION. 751 
 
 provisions of the statute the obligation of following the particular. 
 remedy given, and no other {y), unless the statutory remedy does 
 not extend to and cover the whole right (z). 
 
 Giving an appeal to the court of quarter-sessions will not oust 
 the Queen's courts of their jurisdiction (a). 
 
 Of tlie statutory remedy for the recovery of compensation under the 
 provisions of the Lands Clauses and Railway Glauses Consolidation 
 Acts. — The 8 & 9 Vict. c. 18, commonly called the Lands Clauses 
 Consolidation Act, 1845, consolidates into one Act certain provisions 
 to be thereafter incorporated into Acts of Parliament, relative to 
 the acquisition of lands required for undertakings or works of a 
 public nature, and to the compensation to be made to the owners 
 or occupiers of, or parties interested in, such lands, for any damage 
 that may be sustained by them by reason of the execution of the 
 works authorized by statute. If the claim for compensation by 
 such persons is under 50^., it is to be settled (s. 22) by two justices; 
 if it exceeds 50Z., the claimant may elect (s. 23) to have it settled 
 by arbitration, or by the verdict of a jury (ss. 24 — 49), or, in cases 
 of railways, by the trial of an issue {post, p. 752). The General 
 Compensation Clause (s. 68) provides that if any party shall be 
 entitled to compensation in respect of any lands, or of any 
 interest therein (b), which shaU have been taken for, or injuriously 
 affected by, the execution of the works, and for which satisfaction 
 has not been made, and the compensation claimed exceeds 50/., 
 such party may have the same settled by arbitration or the verdict 
 of a jury, as he shall think fit. And if lands required or taken for 
 the purposes of the Tindertaking, or injuriously affected thereby, are 
 in the possession of a person having no greater interest therein 
 than that of a tenant for a year or from year to year (c), and such 
 person be required to give up possession of the whole or of part of 
 such lands before the expiration of his interest therein ((f), the 
 amount of compensation is, if the parties differ, to be settled (s. 121) 
 by two justices. The general words of the 68th section of the 
 statute, therefore, are restricted by s. 121, so that the proceedings 
 
 {y) Mayor, &c., of Blackburn, v. Par- 529. But it is a statutable agreement 
 
 himon, 28 Law J., M. C. 7. upon wlilch, if not duly carried out, au 
 
 (z) Shepherd t. Hiiy, ante, p. 39. action for damages and a mandamus may 
 
 JBogg y. Midlamd Sail. Co., post, Tp. 752. be sustained: Morgcm v. Metrop. JlaU. 
 
 (a) Leader y. Moxon, 2 W. Bl. 924; 3 Co., L. E., 3 C. P. 553; 4 iUd. 97; and 
 
 Wils. 461 ; ante, p. 710. it is no defence to such an action that the 
 
 (6) This does not extend to an agree- whole capital of the company has not 
 
 raent for sporting, Bird v. Gt. Eastern been subscribed, as required by a. 16 of 
 
 Rail. Co., 34 Law J., C. P. 366 ; unless, the Lands Clauses Act, that section only 
 
 perhaps, it be by deed ; ibid. applying, to lands cqrmpulsorily taken : 
 
 (c) See Tyson y. Mayor of London, Quest y. J'oole 'and Bournemouth Mail., 
 L. E., 7 C. P. 18. L. E,, 5 0. P. 553. SeeBichmond v. North 
 
 (d) A notice to treat under s. 18 is not Lond. Bail. Co., L. K., 5 Eq. Ca. 352 ; 
 equiyalent to requiring possession under S. 0. 3 Ch. App. 679. Sarding v. Metrop. 
 this section : R. v. Stone, L. E., 1 Q. B. Bail, L. E., 7 Ch. App. 154. 
 
752 ' INJURIES AUTHOEIZED BY STATUTE. [CHAP. XVI. 
 
 in cases falling within the latter section must be in the mode there 
 prescribed (e). But where no part of the land of a tenant from year 
 to year is required to be given up, but is merely injuriously affected 
 by the execution of the works of a railway, the claim to compen- 
 sation is regulated by s. 68 of the statute, and does not come within 
 the restrictive operation of s. 121 (/). The fact that the works 
 cannot be executed without the consent of some third person, who 
 owns the land on which the works are to be made, does not render 
 the consent of such Ijhird person, when given, equivalent to an 
 agreement to give up his land voluntarily,. but such third person 
 will still be entitled to claim as for lands compulsorily taken {g). 
 
 By another statute, 8 & 9 Vict. c. 20, commonly called the 
 Eailway Clauses Consolidation Act, consolidating into one Act 
 sundry .provisions to be introduced into Acts of Parliament 
 thereafter passed, authorizing the construction of railways, it is 
 provided (s. 6), that in exercising the power given to the company 
 to construct a railway, the company shall make to the owners 
 and occupiers of, and all other parties interested in, any lands 
 taken or used for the purposes of a railway, or injuriously affected 
 by the construction thereof, full compensation for the value of the 
 lands so taken or used, and for all damage sustained by such 
 owners, occupiers, and other parties, by reason of the exercise as 
 regards such lands of the powers vested in the company, the amount 
 of compensation to be ascertained and determined in the manner 
 provided by the Lands Clauses Consolidation Act. In cases to 
 which the Lands Clauses Act does not apply, as, for instance, where, 
 the lessee of lands taken by a company is entitled to a right of 
 renewal, the Court of Chancery has jurisdiction to decide between 
 the claimant and the company Qi). 
 
 If the claimant or the railway company prefer it, they may, 
 at anytime before the issue of the writ to the sheriff, apply to 
 a judge of a superior court of common law for the trial of the 
 question between them, by directing an issue in such form, and 
 to be tried at such place, &c., as he shall direct, and the proceedings 
 in respect of such issue shall be subject to tha jurisdiction of the 
 court, but the jury nevertheless must, where the issue relates .to 
 land purchased, and injury done to other land held therewith, deliver 
 their verdict separately, as provided by the 49th section of the 
 Lands Clauses Act; 31 & 32 Vict. c. 119, ss. 41, 42, 43. 
 
 The statutory remedy provided by these Acts of Parliament is 
 
 (e) Reg. v. Manckr., &c., Ma. Co., 4 (/) -Somera, 7m re, 31 Law J., Q. B. 261 
 
 Ell. & Bl. 103. Knwpp t. Land., Chat., (g) Thames Conservators v. Victoria 
 
 and Dover Sail. Co., 32 Law J., Exch. Station Sail. Co., L. E., 4 C P 59 
 236. Beg. v. Lord Mayor of London, L. {h) Bogg y. Midland Sail. Co L E 
 
 K., 2 Q. B. 292. 4 Eq. Ca. 310. Shepherd v. mis, ante 
 
 p. 751. 
 
SECT. 2. J STATUTORY COMPENSATION. 753 
 
 substituted in lieu of the ordinary remedy ^by way of action, so 
 that parties aggrieved by anything done in the exercise of the 
 powers granted by the statute must follow the statutory remedy, 
 and cannot resort to an action for damages (i). The fact of the 
 claimant being entitled to the compensation he seeks is a condition 
 precedent to his right to avail himself of the machinery provided 
 by s. 68 of the Lands Clauses Consolidation Act. If, therefore, the 
 claimant has no title to compensation, the whole proceedings before 
 the arbitrator or a jury are coram non judice (Ic), of which the 
 company are entitled to avail themselves in answer to an action 
 on the award {J). 
 
 In cases of railway compensations, it has been held that the 
 occupier of a house and shop adjoining a railway is entitled to 
 the statutory compensation for damage sustained by him in 
 consequence of the dust and dirt from the railway works having 
 penetrated his shop and damaged his goods (m), or from the 
 obstruction to the access of light and air to ancient windows, 
 provided in all these cases that the act causing the injury has been 
 authorized to be done by Act of Parliament, and has been 
 judiciously and carefully done in the exercise of the statutory 
 powers. 
 
 Wherever real property is depreciated in value by the 
 construction of a railway, and the depreciation is caused by 
 that being done which, but for the powers contained in the Act 
 of Parliament, would have been actionable as between the 
 landowner and the company, that is a case for compensation 
 under the provisions of the statute, and for the adoption of the 
 statutory remedy, to the exclusion of an action at common law. 
 Thus, if a private way of the landowner has been obstructeci, 
 although an easement only {n), or his enjoyment thereof infringed 
 or rendered less convenient by reason of the private way being 
 crossed by a railroad, and obstructed by railway gates, or the 
 means of access to his house or land from the highway has been 
 rendered less convenient from a road being raised or lowered (o), or 
 the light coming to his house has been impeded {jp), a case for the 
 
 (i) Watkins v. Gt. North. Rail. Co., v. Gattke, 3 Mac. & G. 155 ; 20 Law J., 
 
 16 Q. B. 968. Jolly y. Wimbledon, Sfc, Ch. 17. , „ , , 
 
 Sail Co., 31 I^aw J., C.V. 96. Chamher- (m) Suhe of Buccleue/i v. Metrop. 
 
 lain V. West End, &c.. Bail. Co., 31 Law Board of Works, ante, p- 7*8. 
 
 J Q B 201 (") S^^ -^y- ^- ^*- -^"s *> Ij- I'". Q- B. 
 
 '\h) E.Y. CambrimEaa. Co., !..■&., i 512 -7 ibid. US. 
 
 B 320 ^ (P) ^o-Q^ '^- Cmrvng Cross Bail. Co., 
 
 (l) See Hooper t. Bristol Port Bail- L. K., 2 0. P. 688 ; and it makes no dil'- 
 
 way Comvany, 35 Law J., 0. P. 299. ference that the value of his house has 
 
 Beckett v. Midhmd Baihiay Company, not been lessened, owing to the increase 
 
 L E. 1 C. P. 241.' °f value by reason of the proximity of 
 
 (m) Kriock\. Metrop. Bail. Co., h. K., the railway ; .S'. C. 
 i C. P. 131. JUast and West India Docks 
 
754 INJUKIES AUTHORIZED BY STATUTE. [CHAP. XTI. 
 
 statutory compensation is made out (q). But in the case of injury 
 to adjoining houses by the vibration caused by trains running in 
 the ordinary manner without negligence, after the line is opened 
 for trafi&c, or by the noise and smoke of the trains, it is now held 
 that, although the right of action is taken away, there are no 
 provisions either in the Lands Clauses or Eailway Clauses Act 
 under which a person whose house is so injured can recover 
 compensation (r). And where a highway has been diverted or 
 rendered less convenient, by being narrowed for instance (s), and 
 premises abutting thereon have been rendered less suitable for 
 shops or a public house (t), or where a public turnpike-road is 
 crossed by a railway, and no special damage has been sustained 
 thereby, and no injury or inconvenience, different in kind, although 
 it may be greater in degree, has been suffered by a complaining 
 party than that which is common to all the Queen's subjects 
 passing along such public highway, there is no ground for 
 statutory compensation, for no action for damages would be 
 maintainable (u). 
 
 Of statutory compensations to tenants and occv/piers of lands 
 taken for public works. — In the case of lands under lease required 
 for railways or undertakings of a public nature, it is enacted (8 & 9 
 Vict. c. 18), that every lessee shall be entitled to receive 
 compensation for damage done to him in his tenancy by reason of 
 the severance of his land for the purposes of the undertaking, or 
 otherwise, by reason of the execution of the works authorized by 
 statute, and that if any such lands be in the possession of any 
 person having no greater interest therein than as a tenant from 
 year to year, and such person be required to give up possession 
 before the expiration of his interest, he shall be entitled to 
 compensation for the value of his unexpired term or interest, and 
 for any just allowance which ought to be made to him by an 
 
 (g) Qlmer v. North Staff. Sail. Co., 16 v. Mid. Sail. Co., L. E., 3 C. P. 82. City 
 
 Q. B. 923. Moore v. Gt. Sovih cmd West. of Glasgow Union MaiMaay Co. v. Hunter, 
 
 -ffiaiZ. Co., 10 Ir. C.L. Kep. 46. Chaniber- L. E„ 2 So. App. 78. So, if aroad way 
 
 lain V. West End of Land., dc. Bcdl. Co., be substituted for a waterway, Duke of 
 
 32 Law J., Q. B. 173. Bucoleueh Y. Metrop. Bowrd of Works, L. 
 
 (r) Brand v. ITammersmith Bail Co., E., 3 Exoh. 306 ; 5 Exch. 221 : 5 Eng. & 
 
 L. R., 1 Q. B. 130 ; 2 ibid. 223 ; 4 Eng. Ir. App. 418. 
 
 & Ir. App. 171 ; 38 Law J., Q. B. 265. (t) Sex v. London Doch Co., 5 Ad. & 
 
 City of Glasgow Union Sail. Co. v. Hunter, B. 163. 
 
 L. E. 2 So. App. 78. Bee Lond. avid North- (u) Caledonian Rail. Co., t. Ogil/iiy, 2 
 
 West. Sail. Co. v. Bradley, 6 Kail. Cas. Macq. Sc. Ap. 23. Sicket t. Meirop. 
 
 556 ; 3 Mac. & G. 336. Beg. v. Oamhrian Sail. Co., L. R., 2 H. of L. Ca. 175 ; 34 
 
 Bail., ante, p. 13. Law J., Q. B. 257 (overruling Senior r. 
 
 (s) HoweTer, if the narrowing of the Metrop. Sail. Co., 32 Law J., Exch. 25 ; 
 
 road sensibly interferes with the light and Cameron v. Chairing Cross Sail. Co., 
 
 and air coming to a house, bo that it is 33 Law J., C. P. 31B). Lond. and North- 
 
 worth less to let, as a house, and not with West. Bail. Co. v. Smith, 1 Mc. & G. 216. 
 
 reference to any particular trade, &c., Beg. v. Metrop. Boa/rd of Works, SS h J , 
 
 carried oa in it, that is "injuriously Q. B. 201, 
 afl'coting " it within the statute, Beckett 
 
SECT. 2.] STATUTORY COMPENSATION. 755 
 
 incoming tenant, and for any loss or injury lie may sustain ; or, if 
 a part only of such, lands be required, compensation for damage 
 done to him in his tenancy by severing the lands held by him, or 
 otherwise injuriously affecting the same. A lessee, therefore, who 
 has been obliged to give up his house and business for the purpose 
 of a railway, is entitled to compensation for the loss he sustains in 
 giving up his business, until he can get other suitable premises for 
 carrying it on (x). 
 
 Notices hy claimants of the nature and extent of the injury 
 sustained, and of the amount of compensation required. — Every 
 owner and occupier whose land has beeii taken by a public 
 company for public purposes under statutory powers, or whose land 
 has been injuriously affected by the execution of works of a public 
 nature authorized by statute, must give notice in writing to the 
 railway oi; other company, declaring whether he desires «, 
 settlement by arbitration or by the verdict of a jury, stating in sucb 
 notice the nature of his interest in the lands in respect of which 
 he claims compensation, and the amount claimed by him, i.e., such 
 particulars of his estate or interest as will enable the company to 
 form a proper judgment respecting the claim (y). If he desires an 
 arbitration and gives the requisite notice, and the compensation 
 claimed is not paid, or agTced to be paid, he will be entitled to have 
 the amount of the compensation settled by arbitration pursuant to 
 the provisions of the statute (z). If, on the other hand, he desires 
 to have the amount of compensation settled by the verdict of a 
 jury, and gives the requisite notice (s. 68), and the amount claimed 
 is not paid, or agreed to be paid, the railway company is bound, 
 within twenty-one days after the receipt of the notice, to direct 
 the sheriff (a) to summon a jury for settling the amount of 
 compensation in the manner provided by the statute, and in default 
 thereof the company is liable to pay to the party injured the amount 
 of compensation claimed, and the same may be recovered by action 
 in any of the superior courts (&). 
 
 "Where the owner of land taken by a railway company gave 
 notice under s. 68 of this statute of his desire to have the amount 
 of compensation settled by a jury, and before the expiration of the 
 twenty-one days limited by that section for the company to issue 
 their warrant to the sheriff to summon a jury, the owner gave a 
 second notice of his desire to have the question settled by a special 
 jury under s. 54, which fixes no time for the issuing of the warrant, 
 
 (x) Jubb V. SuU Dock Co., 9 Q. B. (z) 8 & 9 Vict. c. 18, ss. 25—37 ; ante, 
 
 443. Chamberlain \. West End, d'C, p. 749. 
 
 Rail. Co., 31 Law J., Q. B. 201. (a) If the sheriff is interested, see 
 
 («) HeeUy v. Thames Valley Bail. Co., write, p. 638. 
 
 34 Law J., Q. B. 55. Cameron v. Chariny (ft) 8 & 9 Vict, c. 18, s. 68. 
 Cross Rail. Co., 33 ikid, 0. P, 313. 
 
 c oa 
 
756 INJURIES AUTHORIZED BY STATUTE. [CHAP. XVI. 
 
 it was held that the company were bound to issue their warrant for 
 the special jury within twenty-one days after the receipt of the first 
 notice, or pay the compensation claimed (c). If the company do 
 not, within a reasonable time after notice, issue their warrant to the 
 sheriff, an action for a mandamus under the Common Law Procedure 
 Act, 17 & 18 Vict. c. 125, may be sustained {d). 
 
 ' Assessment of damages. — It is not competent to the sheriff's jury 
 to determine the right of a claimant to compensation. It is for the 
 court to decide upon the right or title of the party to be 
 compensated, and for the jury to settle the amount, so that the 
 amount has to be tried first and the title last (e). Neither the jury 
 nor an arbitrator has any jurisdiction to inquire into collateral 
 matters, creating a head of damage distinct from the damage 
 flowing from the exercise of the statutory powers, unless the parties 
 mutually consent to refer such matters to them for their decision (/). 
 And in an action on the award the arbitrator may be examined, to 
 prove what was the subject-matter into which he was inquiring, 
 and upon which his judgment was founded, but not as to the 
 motives which induced him to arrive at the particular sum 
 awarded {g). Where the value of the claimant's estate is increased 
 by a particular covenant, such enhanced value must be taken 
 into account in assessing the compensation (h). If part of a 
 man's land be taken, and part of the remainder be severed from 
 the rest, and such part have a prospective value for building 
 purposes, although then used as agricultural land, the owner 
 is entitled to compensation for it as if access were absolutely 
 cut off, and without regard to the power of justices to .order ac- 
 commodation works, under ss. 68 and 69, which only apply to 
 agricultural land {i). If land be taken subject to restrictive 
 rights, rendering it of little or no value to the owner, as, for 
 instance, to a right of way, or if a churchyard which has been 
 closed under an Order in Council be taken, the amount of com- 
 pensation is assessed with reference to the value of the owner's 
 interest therein, and not with reference to its value to the persons 
 taking it {Ic). 
 
 Future Damages. — The jury have no right to assess prospecr 
 tive damages, unless there be an actually existing cause of 
 
 ivr ^i f^r X-//"''^r '^"''i^o;',^ ^- ^■' (-^^ ^' ^y^' 11 E^ch. 464 ; 25 Law 
 
 N. S. 359 ; 28 Law J., C. P. 271. J., Exch. 53 
 
 /^■'l ^- ^- ^r^- ^ , ^<'^- <^o-' L- e!, 6 Bq. Ca. 429. 
 
 Vict. Station and Pirn. Rail. Co., 32 (i) Meg. v. Brown, L. B., 2 Q. B. 630 
 
SECT. 2.] ASSESSMENT OF DAMAGES. 757 
 
 damage proved before them. The provision respecting future 
 damage is, that the jury shall assess the sum of money to be 
 paid by way of recompense for the future temporary or per- 
 petual continuance of any recurring damage which shall have been 
 occasioned by the exercise of the powers thereby granted. A 
 cause of damage, therefore, must exist in some work of the company 
 already done, to give the ju.ry the power of computing the future 
 damage. They then know what the injury is at present, how often 
 it may accrue, and from these data they have the power of making 
 a contingent assessment of damages. When no injury has been 
 actually done, there is nothing in respect of which future damages 
 can be assessed (Z). "When the amount of damage to be sustained 
 in future years is not capable of being ascertained, and depends upon 
 a variety of contingencies which may or may not occur, the compen- 
 sation cannot be assessed at once and for ever in respect of this 
 future contingent injury. But when it is capable of being known 
 and estimated, it ought to be brought forward, and the amount of 
 compensation assessed at once and for ever (m). See post, p. 760. 
 The cases relating to railways seem to establish that compen- 
 sation is given in respect of the calculable damage caused, or to 
 be caused, in or by the execution of the permanent works of the ' 
 company authorized by the statute, such as obstructing private 
 ways, injuring lights, &c., and not the uncertain prospective 
 damage or injury which may or may not result from the use of 
 the railway after it has been constructed (n). Thus, where the 
 plaintiff and a railway company, before a railway was constructed, 
 referred to arbitration the sum to be paid by the company for the 
 purchase of part of the plaintiff's land, and as compensation for 
 all injury and damage to his remaining estate by severance or 
 otherwise, it was held that the compensation awarded related only 
 to all damage known or contingent by reason of the construction 
 of the railway on the land purchased, and to such other damage 
 arising from the construction of the railway as was apparent and 
 capable of being ascertained and estimated at the time when the 
 compensation was awarded, that it did not embrace contingent and 
 possible damages which might arise afterwards, and which could 
 not at the time have been foreseen by the arbitrator, and that the 
 plaintiff was entitled, notwithstanding the award, to claim com- 
 pensation for such damages (o). 
 
 (I) Parke, B., Lee v. Milner, 2 M. &W. (ra) SvoaMent v. Imip.Qas Co., 26 Law 
 
 841. J.,Ch. 281. 
 
 (m) Rex \. Leeds and Selhy Rail. Co., Z (o) Lawrence v. Gt. Nm-tk. Rail. Co., 
 
 Ad. &E. 690. Reg. V. Aire and Colder 16 Q. B. 643; 20 Law J., Q. B. 293. 
 
 Nav. Co., 30 Law J., Q. B. 337. Croft Brand v. Hammeirsmltk Rail. Co., ante, 
 
 T Lond'and North-Wett, Rail. Co., 32 Tp.75i; Ragnallv. Land, d: N.W. Rail. Co., 
 
 Law J., Q. B. 113, . 7 H. & N. 423 ; 31 Law J,, Exoh. 153. 
 
758 INJURIES AUTHOEIZED BY STATUTE. [CHAP. XVI. 
 
 Assessment of damages to which the daiinant is not legfilly entitled 
 — Removal of the inquisition ly certiorari. — If, upon an inquisition 
 of damages resulting from the execution of works done umter the 
 authority of an Act of Parliament, the under-sheriff has directed the 
 jury to assess and include in their verdict damages for an item which 
 they ought not to have included, and there is reasonable evidence 
 that they did include such an item in making their calculation, a 
 certiorari clearly lies, inasmuch as the jury have thus committed 
 an excess of jurisdiction ; and the excess of jurisdiction may be 
 shown upon affidavits, and need not appear upon the face of the 
 proceedings. Thus, where it was shown by affidavit that the under- 
 sheriff directed the jury that they might give compensation in 
 respect of an alleged nuisance resulting from persons standing on 
 a railway platform, which had been constructed under statutory 
 authority near the plaintiff's dwelling-house, and thence overlooking 
 the plaintiff's premises, it was held that the' nuisance was not a 
 legitimate subject of compensation ; that the jury had exceeded, 
 their jurisdiction ia giving compensation in respect of it, and as 
 they had given one lump sum for the damage done, the court 
 quashed the inquisition {p). Wherever, therefore, several items of 
 claim are brought under the consideration of a sheriff's jury, and it 
 is doubtful whether they are all legitimate subjects of copipensation, 
 the proper course is for the under-sheriff to direct the jury to find 
 separately upon each iteiD., to guard against the quashing of the 
 whole inquisition. 
 
 Recovery of the amount of compensation assessed hy a jury. — 
 Although the verdict of the jury and the judgment are made records, 
 they are not made records of any superior court, nor is there any 
 express provision for any writ of execution to issue for enforcing' 
 them. The consequence is, that an action must be resorted to for 
 recovering the amount (5). 
 
 Declaration in actions for railway compensations. — The plaintiff's 
 declaration in an action for the amount of compensation assessed by 
 a sheriff's jury under 8 & 9 Vict. c. 18, s. 68, usually sets forth the 
 plaintiff's possession of a house or land, that it was injuriously 
 affected by the execution of the works and the construction of the 
 railway, and that the plaintiff was entitled to compensation; 
 whereupon he gave notice to the railway company, . stating the 
 nature of his interest in the land, and the amount of compensation 
 claimed by him pursuant to the statute in that behalf, that 
 the plaintiff claimed to have the amount settled by a jury, that a 
 jury was duly impanneUed and sworn, and the parties having 
 
 (p) Be Penny, 7 El. & Bl. 660 ; 26 Co. t. Ogihy, 2 Macq. 229. 
 Law J., Q. B. 225. Beg. v. South Wales (g) Coleridge, J., Beg. v. Land, and 
 
 Bail. Co., 18 Q. B. 994. Caledonian Bail, North- West. Bail. Co., 3 BU. & Bl. 468. 
 
SECT. 2.] STATUTORY COMPENSATION— PLEADINGS. 759^ 
 
 appeared and given evidence before them, the jury assessed the 
 amount of compensation for the injury to the house at, &c., and for 
 the injury to (stating any other legal injury), at, &c., amounting in 
 
 the whole to the sum of £ , and that the sheriff gave judgment 
 
 for that sum to be paid to the plaintiff according to the provisions 
 of the said statutes, and that the verdict and judgment were duly 
 deposited with the clerk of the peace, by whom the 'same were 
 kept among the records of the court of quarter sessions, yet the 
 
 defendants had not paid to the plaintiff the said sum of £ , or 
 
 any part thereof (r). 
 
 Pleadings — Defences — Traverse of the injury to the land. — The 
 finding of the sheriff's jury on an inquisition under s. 68 of the 
 Lands Clauses Consolidation Act (8 & 9 Vict. c. 18) is not conclusive; 
 and, therefore, in an action brought on such an inquisition, it is 
 competent to the defendants to traverse the allegation that the 
 plaintiff's property was damaged or injuriously affected by the 
 construction of the railway, or by the exercise of the powers vested 
 in the company, within the meaning of the Act, and that the 
 plaintiff was entitled to compensation under the provisions of the 
 statute in respect of the same having been damaged or injuriously 
 affected ; or to plead these facts, and to prove that the subject- 
 matters of the claim submitted to the determination of the sheriff's 
 jury are not such as are contemplated by the 68th section (s). 
 
 If the sheriff's jury had any jurisdiction over the subject-matter 
 of the inquiry, and power to award compensation to the plaintiff, 
 the defendants cannot afterwards, in an action upon the judgment, 
 set up as a defence that there was an excess of jurisdiction as to 
 some part of the claim. In an action upon the judgment, it must 
 be taken that there was jurisdiction, and the quantum of it cannot 
 be investigated, for if that could be done the plaintiff would have 
 to go down to trial prepared to prove each part of his claim, and 
 such a course would be most inconvenient. Where, therefore, an 
 action was brought upon a judgment following an inquisition found 
 before the sheriff in a proceeding by the plaintiff to obtain com- 
 pensation for an injury done to his premises by works carried on 
 under the authority of an Act of Parliament, and the defendants 
 sought to bar the action, and prevent the plaintiff from recovering, 
 by proving that part of the damages was given in respect of an 
 injury arising from the cutting off some water to which the plaintiff 
 had no legal title, it was held that no such defence was open to the 
 
 (r) Chapmcm t. Monm. Sail. <t-c., Co., Station and Pim, Mail. Co., 32 Law J., 
 11 Bxch. 267; 27 Law J., Eioh. 97. Exch. 167. £a/rber v. Notting. and Gran- 
 la) CJuwmajiT. Monm. Bail. &c., Co., tham Sail. Co., 33 Law J., C. P. 193. 
 utsvm Seg.T. Land, and Norih-Weat. Hooper y. Bristol, Sc, Sail. Co., Beckett 
 Bail. Co., 3 Ell. & Bl. 468. Bead v. Vict, v. Mid. Bail. Co., amis, p. 764. 
 
760 ' INJUKIES AUTHORIZED BY STATUTE. [CHAP. XVI. 
 
 defendants in that- action, and. that if the sheriff's jury had im- 
 properly taken upon themselves to give damages in respect of the 
 loss of the water, the matter should have been set right by certiorari, 
 and the inquisition quashed (t). 
 
 BeTmdy for siiisequeiit unforeseen damages. — In respect of all 
 damages which can be foreseen and ascertained at the time of the 
 inquiry, there can be no fxirther compensation. The assessment 
 must " be once for all ; finally ; for all time " (u) ; but if, after 
 compensation has been obtained for the known calculable injury, 
 damage has been sustained which could not have been foreseen, and 
 this damage is the natural and necessary result of the construction 
 of the works authorized by statute, the remedy appears to be by 
 resort to the sheriff's jury, under s. 68 of the Lands Clauses 
 Consolidation Act (x). Thus, if some violent storm has destroyed 
 a portion of the earthworks of a railway, or if there has been a 
 subsidence or fall of an embankment from purely accidental causes, 
 and the accident and its reparation have caused injury to an 
 adjoining landowner, the claim for compensation seems to fall 
 within the compensatory clause of the statute. "The damage 
 ■ resulting from the reparation of a mischief of this sort," observes the 
 Lord Chancellor, " appears to me to be damage strictly arising from 
 the carrying on of the works, and as much within the Lands Clauses 
 Consolidation Act as if it had. occurred before the opening of the 
 railway. I see no difference between the title to compensation 
 of a person who has sustained loss by an unexpected land-slip, 
 whether the accident happened before the line was opened, or two 
 or three days, or two or three weeks, subsequently to that period " (j/)'. 
 See ante, p. 757. Where an Act of Parliament (z) provided that no 
 action or proceeding should be commenced against the Metropolitan 
 Board of Works till after notice, and that " every such action and 
 proceeding should be brought and commenced within six months next 
 after the accrual of the cause of action or ground of claim or de- 
 mand; and not afterwards," it was held that those words referred to 
 some hostile claim against the Board, and not to a claim of arbitra- 
 tion for damage to buildings caused by the works of the board (a). 
 
 If, on the other hand, the subsequent injury results from negli- 
 gence, or want of care and skill in the execution of the authorized 
 works, or from the doing of some wrongful and unauthorized act, 
 
 1 .Efl;; 
 
 {tyjifoi-timer v. South- West. Rail. Oo., West. Mail. Co. v. Bradley, 3 Mac. & G. 
 
 Ell;;'* Ell. 382 ; 28 Law J., Q.B. 129. 336. See Brand v. Hammersmith Mil. 
 
 Gorrigaly. Land. and BlachwaU Sail. Co., Co., ante, p. 754. 
 
 5'M. & Gr. 245. (y) Lane, and Yorh. Bail. Co. v. Erans, 
 
 *S.(«) Croft T. Land, and NorthAVest. 15 Beav. 332. 
 
 Bail. Co., 32 Law J., Q. B. 120. (a) 25 & 26 Vict. c. 102 (3. 106). 
 
 lAWan-e, In re, 9 Exch. 402 ; 7 Rail. , (a) Delany v. Met/roip. Board'of Worhs, 
 
 CasTW);; Glover v. North Staff.' Bail. h. R., 2 C. P. 532; 3'iUd. 111". 
 Co., 16 Q. B; 643, Lond. and North- 
 
SECT. 2.] REMEDY IN CASES OF SEVERANCE. 761 
 
 or for not doing what an Act of Parliament or a legal obligation 
 requires to be done, the remedy is by action (&), for no compensation 
 is given, as previously mentioned, by s. 68 of the Lands Clauses 
 Consolidation Act, or, generally speaking, by any compensation 
 clauses in statutes authorizing the commission of injurious acts, 
 unless the injury is the natural and necessary result of the doing 
 of the authorized act. If the act is, a wrongful act, notwithstanding 
 the statute, the compensation clauses do not apply (c) ; and if the 
 statutory remedy does not apply, an action for damage is, as we 
 have seen, maintainable (d). 
 
 Remedy in cases of severance. — The 128th section of the Lands 
 Clauses Act (8 & 9 Vict. c. 18) provides that, before disposing of 
 the superfluous lands, unless they be " situate within a town,' or 
 be lands built upon or used for building purposes," the company 
 shall offer them to the person entitled to the land from which they 
 were originally severed, and in case of his refusal, to the owners 
 of the land adjoining (e). Under this section it has been held, that 
 land situate within the limits of a borough, and chargeable and 
 charged with paving, lighting, and other borough rates, and with a 
 cottage upon it, but which was at some distance from the mass of 
 houses forming the town, was not within the meaning of the words 
 " within a town," or " built upon or used for building purposes," 
 although the railway had paid the price of building land for it, and 
 that the original vendors to the company or purchasers from them 
 niight, therefore, exercise their right of pre-emption {f). But if the 
 land has been actually sold as building land and been laid out for 
 building purposes, or has been let upon building leases, although 
 the houses have not been actually commenced, it is not within the 
 section, and the right of pre-emption wiU not arise {g). This right 
 of pre-emption accrues as soon as the company have clearly shown 
 that the land is superfluous land, e.g., by selling it to another per- 
 son or otherwise permanently dedicating it to purposes other than 
 those authorized by their Act, although the limit of time mentioned 
 in the 127th section of the Lands Clauses Act, or the company's 
 own Act, within which superfluous lands must be sold, has not yet 
 amved (A). The right accrues to lessees for a long term of years of 
 
 (b) Lawrence v. Gt. North. Rail. Co., L. E., 2 Eq. Ca. 825 ; 3 Ch. App. 377. 
 16 Q. B. 643. Bagnall v. Land, and London and South-West. Rail. Co. v. 
 North- West. Rail. Co., 31 Law 3.; Exeh. Blmkmore, L. R, 4 Eng. & Ir. App. 610. 
 121. How in such a case the arbitration to de- 
 
 (c) Sroadbent T. Imp. Oas, S[C., Co., 26 termine the price should be conducted, 
 Law J., Ch. 280. gumre? 
 
 (d) Ante, p. 735 et seq. Blagrwve v. ig) Coveniry v. L., B., and S. Coast 
 Waterworks, &c., Co., 1 H. & N. 385. .Rail. Co., L. K.; 5 Eq. Ca. 104. 
 
 (c) If more than one, see Lond. and (h) Lord Beauchamp v. Ot. West. Rail. 
 
 South-West. Rail. Co.y. Blachmore, L. R,' Co., L. R, 3 Ch. App. 745. Lond. and 
 
 i En?. & Ir. App. 610. South- West. Rail. Co. v. Blachmore, L. K., 
 
 {f) Carington v. Wycombe Rail. Co., 4 Eng. & Ir. App, 610. 
 
762 INJURIES AUTHORIZED BY STATUTE. [CHAP. XVI. 
 
 the adjoining land as well as to owners of the fee (i). But it has 
 no application to lands taken by a company for a line which has 
 never been made (j). Superfluous lands remaining unsold at the 
 expiration of the time limited by the 127th section vest, under the 
 provisions of that section, in the owners of the adjoining lands (A). 
 
 Compulsory purchase of house hy railway company. — The 92nd 
 section of the Lands Clauses Act, 8 & 9 Vict. c. 18, provides that 
 no person shall be required to sell to the promoters " a part only of 
 any house or other building or manufactory," if such person be 
 willing to sell the whole. Where a manufactory was partly worked 
 by water-power supplied by a reservoir, which in its turn was sup- 
 plied by a goit, into which water was turned from a natural stream 
 at Some distance from the manufactory, and at the point where the 
 goit commenced there was- a weir, with shuttles to regulate the 
 supply of water to the goit, and a mill-house for the residence of a 
 man to see to the shuttles, and the railway company proposed to 
 take the weir, shuttles, mill-house, and part of the goit, it was 
 held that they must take the manufactory also (Q. So a vacant 
 piece of land in front of a public-house, not separated by any fence 
 from the street, which had been always treated as passing to the ' 
 lessee of the public-house under a demise thereof, and formed the 
 only means of approach for vehicles coming to the house, is part of 
 the " house " within the meaning of the section (m). But, although 
 the company may be compelled to take whatever is thus necessary 
 for the convenient or profitable occupation of the house or manu- 
 factory, they cannot be compelled to take what is necessary only 
 for the personal use or convenience of the owner for the time being. 
 Where, therefore, the plaintiff, the proprietor of a house and six 
 acres of land on one side of a road, bought several acres of land on 
 the other side, upon which he kept cows and horses requisite for 
 his family and establishment, which was a large one, and built, or 
 found built thereon, a cottage, which he used for the residence of 
 his grooms, it was held that the last-named land was not part of 
 his " house " within the meaning of the section {n). It makes no 
 difference that the grounds are used partly for ornament and 
 partly for business purposes, e. g., growing plants, &c., for sale, if the 
 company propose to take part of that which is used for ornament 
 and can fairly be considered as part of the house, as a residence (o). 
 
 (i) Coventry v. L,, B., and S. Coast (m) Manon v. Land., Chjat,, and Dover 
 
 Sail. Co., supra. Hail. Co., ibid. 101. 
 
 is) Smithv. Smith, SSliOW J., 'Ejich.S7. (n) Steele y. Mid. Bail. Co., L. E., 1 
 
 (h) See May v. Gt. West. Rail., L. K. 7 Ch. App. 275. 
 
 Q. B. 364. (0) SaMer v. Metvop. District Sail., li, 
 
 (l) Fumiss V, Mid. Sail. Co., L. R., 6 K., 9 Eq. Oa. 432. 
 Eq. Ca. 473. 
 
SECT. 3.] NEGLIGENT EXERCISE OF STATUTORY POWERS. 763 
 
 SECTION III. 
 
 REMEDIES BY ACTION AND BY INJUNCTION IN RESPECT OF INJURIES 
 FROM THE TJTEGLIQENT DOING OF THINGS AUTHORIZED TO BE 
 DONE BY STATUTE. 
 
 Limitation of actions in respect of things done rnider local and 
 personal statutes. — By 5 & 6 Vict. c. 97, s. 5, it is enacted, that 
 the period withia which any action may be brought for anything 
 done under the authority or in pursuance of any local and personal 
 Acts (jp), shall be two years, or, in case of continuing damage, then 
 the action must be brought within one year after such damage 
 shall have ceased, and so much of any enactment as appoints any 
 other period of limitation is repealed. 
 
 Accrual of the cause of action and commencement of the period of 
 limitation. — Where the defendant, who was a surveyor of highways, 
 ■ dug into the plaintiff's soil, threw down fences, and erected a wall, 
 and the Highway Act, 13 Geo. 3, c. 78, s. 81, required the action 
 to be brought " within three months after the fact committed, and 
 not afterwards ; " and no action was brought within the three 
 months, and after that period had expired, the surveyor raised the 
 wall and finished it, it was held that the raising of the wall was not a 
 fresh fact committed within the meaning of the statute, and would 
 not extend the period of limitation beyond the . three months (g). 
 But where the cause of injury was a digging in the soil of a street, 
 and the excavation at first produced no injury to the plaintiff, 
 but some months after it had been made, it weakened the foun- 
 dations of the wall of the plaintiff's house, and caused it to fall, it 
 was held that the falling of the wall of the house constituted the 
 cause of action ; that no action was maintainable for the digging 
 in the street until injury to the plaintiff resulted therefrom, and, 
 therefore, that the time of limitation ran from the falling of the 
 wall, and not from the time of the making the excavation (r). A 
 continuing excavation of this sort has been said to be a continuing 
 nuisance, constituting a continuing cause of action so long as it is 
 permitted to exist (s) ; and so is a continuing obstruction to a 
 watercourse and flow of water {t). 
 
 > 
 
 {p) See Cock v. Gent, 13 Law J., Eich. 34 Law J., Q. B. 181. Smith v. Thac- 
 
 24, and ante, p. 588. herah, L. R., 1 C. P. 564. 
 
 (q) Wordsworth T. Barley, 1 B. & Ad. (s) Holroyd, J., ffowdl v. Toung, 5 B. 
 
 391. & 0. 268. Gitlon v. Boddington, Ey. & 
 
 (r) RoleHs r. Bead, 16 East, 217. M. 164. 
 
 Sonomi v. Backhmne, ante, pp. 62, 609 ; (0 Whitehome v. Fellowes, 30 Law J., 
 
 C.P.305. 
 
764 NEGLIGENT EXERCISE OF STATUTORY POWERS. [CHAP. XVI. 
 
 Of notice of action. — The words in clauses of Acts of Parliament 
 requiring notice of action to be given " in respect- of anything done 
 in pursuance of the Act, or in execution of the powers thereof," 
 apply to all cases where the parties are intending to act upon 
 powers given by the statute, and not merely using it as a cloak 
 for their own private purposes (it). Those words do not mean acts 
 done iu strict pursuance of the Act, because in such a case a person 
 would be acting legally, and would not require protection. They 
 mean, that a person, to be entitled to the protection, must hoinA fide, 
 and really believe himself to be authorized by the Act (a;). Though 
 he may erroneously exceed the powers the Act gives, or inadequately 
 discharge the duties imposed upon him, yet if he acts hoiiiA fide, in 
 order to execute such powers, or to discharge such duties, he is to be 
 considered as acting in pursuance of the Act, and is entitled to the 
 protection conferred upon persons so acting (2/). Whenever, indeed, 
 any action is brought against any one for anything done by the 
 order, direction, or authority of a person authorized to act in the 
 matter, under the provisions of a public or a private Act of Parlia- 
 ment, it will generally be found necessary to give notice of action. 
 It must be given in cases of nonfeazance, where the person, having 
 undertaken to act in pursuance of some statute, has failed to do 
 what he ought to have done ; as well as in cases of misfeazance, 
 where he has acted negligently or wrongfully in the execution 
 of the Act (s). The notice must state positively that an action 
 will be brought, and must in general state the cause of 
 action [a). 
 
 Notice of action is required only where the action is brought 
 for a tort or a quasi tort, and not for a breach of a specific 
 contract (&). 
 
 Notice of action to gas companies and trading corporations aiid 
 their officers. — The right to notice of action has been extended by 
 numerous Acts of Parliament to all sorts of trading corporations, 
 joint-stock companies, and associations called into existence by 
 statute for a variety of local and private purposes, and purposes of 
 gain, so that whenever an action of tort is brought agaiast a com- 
 pany or association which is incorporated or regulated by statute, 
 or derives its powers from some special Act of Parliament, or 
 against the officers of any such company or association, it will, in 
 
 (m) OaUey v. Kensington Canal Co., 5 per Blackburn, J., L. E., 6 Q. B. 84. And 
 
 B. & Ad. 139'. Beechey v. Sides, 9 B. & see ante, p. 588 et seq. 
 
 C. 809. (a) Mason v. Bwhenhead Com., Sic, 6 
 (x) Hughes y. Buckland, 15 M. & W. H. & N. 72 ; 29 Law J., Exch. 406. 
 
 353. OcSry t. Wilts Comal Co., 3 M. & (6) Wightman, J., Dams v. Cwrling, 8 
 
 S. 589 ; amU, p. 589. Q. B. 293. Fletcher y. GreenweU, 4 Dowl. 
 
 (y) Smithy. TViifeAire^ 2 B. & B. 620. P. C. 166. Davis y. Mayor, &e., of 
 
 Smith V. Sham, 10 B. & C. 284. Swansea, 22 Law J., Exch. 297. 
 
 (z) Joule T. Taylor, 7 Exch. 58. See 
 
SECT. 3.] NOTICE OF ACTION. 765 
 
 general, be Jiecessary to give notice of action. This will be found 
 to be the case in actions against many of the gas companies or their 
 officers for things done by them under the powers or in pursuance 
 of their several Acts of Incorporation, also against certain railway 
 companies (c) when there has been an omission of some duty 
 imposed upon the company by the Act, such as the non-repair of 
 fences, or the charging or levying excessive tolls under the powers 
 of their Act of Incorporation (d) ; but when the action is brought 
 against them for a breach of their duty as common carriers, no notice 
 of action is recLuisite (e). 
 
 Neither the Lands Clauses nor the Companies Clauses Consoli- 
 dation Act, however, contain any section requiring notice of action 
 to be given to companies in respect of things done by them under 
 the authority of those statutes ; but s. 141 of the Companies Clauses 
 Act (8 & 9 Vict. c. 16), and s. 135 of the Lands Clauses Act (8 & 9 
 Vict. c. 18), entitle the company to a verdict, if before action they 
 tender sufficient amends. 
 
 Notice of action to toll and tax-collectors and revenue-officers. — 
 ITotice of action also is required to be given in respect of things 
 done by toll-collectors on turnpike-roads acting in pursuance of the 
 General Turnpike Act (/), or certain special Acts of Parliament 
 authorizing the collection of toll (a), or by revenue-officers (A), tax- 
 collectors (i), or commissioners and other persons acting in the 
 execution of the several'Acts relating to the land-tax (/). If the 
 pfficer has reasonable grounds for thinking that his duty required 
 him to do the injurious act complained of, he is entitled to notice 
 of action (Jc). If a toll or tax, though not legally payable, is 
 demanded londfide by a collector, who intends to act right, and has 
 fair and reasonable grounds for believing that he has a right to 
 demand the money, the collector is entitled to the statutory protec- 
 tion, and must have notice of action {l). But if a revenue officer, 
 toll or tax-coUector, impraperly, and without colour of right, extorts 
 money by virtue of his office, and in plain and manifest abuse of 
 the statute under which he acts, he will then lose the statutory 
 protection, and will not be entitled to any notice of action. If he 
 makes an improper seizure of goods, and then ta,kes money as a 
 bribe to deliver them up again, there is no statutory protection (m). 
 If he makes a wholly unauthorized charge, and is guUty of manifest 
 extortion under a threat of legal proceedings, or the pressure of 
 
 (c) Carpue v. Land, and Brighton Sail. (g) Waterhoitse v. Keen, 4 B. & 0. 200. 
 Oo 5 Q. B. 747. W Oreenway v. Hurd, 4 T. E. 553. 
 
 (d) Kent v. 6t. West. Rail. Co., 3 C. (i) 43 Geo. 3, c. 99, s. 70. 
 
 B. 725. U) 5 & 6 yrm. 4, c. 20, s. 19. Tliomas 
 
 (e) Palmer v. Grwnd Junction Rail. T. W'jKwtos, 13 Law J.,Exch. 87. 
 Oo 4 M. & W. 766. Gwrton v. Ot. West. (h) Damiel t. Wilson, 5 T. E. 1. 
 Rail. Co., E. B. & E. 837, 846, {l) Waterhouse v. Keen, 4 B. & 0. 211. 
 
 (/) 3 Geo. 4, c. 126. {m) Irving v. Wilson, i T. E. 486. 
 
766 NEGLIGENT EXEBCISE OF STATUTOEY POWERS. [CHAP. XVI. 
 
 a distress (n), he cannot shelter himself under the provisions of the 
 statute. 
 
 Notice of action against contractors, &c., under Local Boards of 
 Health. — A contractor who contracts with a Local Board of Health 
 for the digging of drains and wells and making excavations, is a 
 person acting under the direction of the board within 11 & 12 
 Vict. c. 63, s. 139, and is entitled to notice of action for digging a 
 hole in a puhlic thoroughfare, and leaving it unguarded and without 
 a light, although the hoard might not be liable for the contractor's 
 act (o). So a contractor is entitled to notice of action, under the 
 Metropolis Local Management Amendment Act, 25 & 26 • Vict, 
 c. 102, who, in enlarging a sewer, under a contract with the Metro- 
 politan Board of Works, has dammed it up, although he has been 
 guilty of negligence in not pumping away the seVage water which 
 had accumulated, and which in consequence flowed into the plain- 
 tiff's house {p). But where the injury is caused by the negligence 
 of his servant, in leaving his cart unattended in the public streets, 
 and the horse runs away and causes damage, he is not entitled to 
 notice {q). Nor is a person who receives notice to drain his house 
 under the 106th section of the 25 & 26 Vict. c. 102, and who in so 
 doing commits a trespass by laying the drain-pipe in the land of 
 another, entitled to notice (r). 
 
 Notice of action against surveyors and persmis acting in execution 
 of tlie Highway Acts. — The Highway Act, 5 & 6 Wm. 4, c. 50, s. 109, 
 requires notice of action to be given for anything done in pursuance 
 of the Act. Where, therefore, a surveyor of highways left an 
 obstruction of gravel and sand in a highway, and had notice to 
 remove it, and failed so to do, it was held that he was entitled to 
 notice of action (s). And where a highway board, with their 
 surveyor, trespassed upon private grounds, and broke down a 
 private gate in the assertion of a supposed right of way which had 
 no existence, it was held that they were entitled to notice of action. 
 "The defendants," observes Lord Denman, "might believe that they 
 were acting in execution of the power to remove obstructions in 
 public roads without coming to a very irrational conclusion. The 
 argument against it is, indeed, founded on a specific clause, which 
 prescribes a different course of proceeding to this end, but we are 
 not prepared to hold that officers of this description are bound 
 to argue on a comparison of clauses in a long Act, and to decide 
 correctly" (f). Wherever, therefore, a surveyor is acting bond fide 
 
 (n) UmpMby v. M'Lean, 1 B. & Aid. L. K., 3 C. P. 114. 
 
 ^^; , „ , ^„. ,„„ (g) Wlm1many.Pe(wson,l,.'R.,ZC.V. 
 
 (o) Neuilomr. mis, 5 BU. & Bl. 115; 422. 
 
 24 Law J. Q. B. 337. (r) Doust v. Slater, 38 Law J. Q. B.159. 
 
 (j>) Paulson V. Thirst. L. E., 2 C. P. (s) Dcms v. Curling, 8 Q. B. 292 
 
 419, See Wilson v. Mayor of Halifax, [t) Smith v. Hopper, 9 (J. B 1014 
 
SECT. 3,] TENDER OF AMENDS. 767 
 
 in his public capacity as surveyor, he is entitled to notice of 
 action (m). 
 
 A person acting as surveyor under an appointment in fact, 
 though an informal and illegal one, is, nevertheless, entitled to notice 
 of action if he was acting in what he did in the ioTid fide belief 
 that he had been properly appointed {v}. And so where a surveyor 
 received payment under an informal assessment, made apparently 
 under a repealed Act, but lond fide intended to act according to the 
 duties of his office, and in pursuance of the statute authorizing him 
 in that behalf (w). 
 
 Tender of amends before action. — The statutes requiring notice of 
 action to be given further provide, as we have seen, that the action 
 shall not be maiatainable, and that the jury shaU give a verdict for 
 the defendant, if there has been a tender of sufficient amends before 
 action (ante, pp. 593, 728). This is the case with the Lands Glauses 
 Act (8 & 9 Vict. c. 18, s. 135) ; the Eailway Clauses Act (8 & 9 
 Vict. c. 20, s. 139) ; the Waterworks Clauses Act (10 & 11 Vict. 
 c. 17, s. 84) ; the Harbours, Docks, and Piers Clauses Act (10 & 11 
 Vict. c. 27, s. 91) ; the Towns Improvement Clauses Act (10 & 11 
 Vict. c. 34, s. 209) ; the Commissioners Clauses Act (10 & 11 Vict. 
 c. 16, s. 103) ; the Markets and Fairs Clauses Act (10 & 11 Vict. 
 c. 14, s. 51) ; the Town Police Clauses Act (10 & 11 Vict. c. 89, 
 s. 72) ; the Cemeteries Clauses Act (10 & 11 Vict. c. 65, s. 61) ; the 
 Contagious Diseases (Animals) Act, 1869 (32 & 33 Vict. c. 70, 
 ss. 110-113) ; and the Ecclesiastical Dilapidations Act, 1871 (34 & 
 .35 Vict. c. 43, s. 68). 
 
 Parties to te made defendants. — ^AU persons who have been guilty 
 of negligence or misconduct in the execution of public works 
 vmder the authority of an Act of Parliament, or who have exceeded 
 the powers iatrusted to them (x), or who have neglected a public 
 duty imposed upon them by statute, or by the common law, are, 
 as we have seen, liable to be sued by the party injured (ante, 
 p. 736 et seq.) ; but if the injury of which the plaintiff complains is 
 the inevitable result of the execution of the authorized Act, the 
 liability will be regulated and governed by the statute. , "Where an 
 Act of Parliament imposed upon a waterworks company the duty 
 of repairing, renewing, and keeping certain fire-plugs in proper 
 order, it was held that it was no answer to an action for damages 
 resulting from a breach of this duty, to show that the fire-plugs 
 were the property of another public body which was required to 
 pay the costs and charges of keeping them in repair (y). 
 
 (u) HardAiiiek v. Moss, 31 Law J., (») Reg. v. Lmgton Gas Co., 2 EH. & 
 
 Exch. 207. Ell. 651. 
 
 {m\ Hughes v. BucUand, 16 M. & W. (y) Bwyley v. Woherhampton Water- 
 
 355 ™* Co., 6 H. & liT, 241 ; 30 L. J,, 
 
 (in) Selmes v. Judge, L, B., 6 Q. B. 721. Excb. 57. 
 
768 NEGLIGENT EXERCISE OF STATUTORY POWERS. [CHAP. XVI. 
 
 Sec. 138 of tlie Public Health Act, 1848/11 & 12 Vict. c. 63 (z), 
 provides that the Local Board of Health of any non-corporate 
 district may be sued in the name of the clerk for the time being 
 concerning any matter or thing whatsoever relating to any matter 
 done by them under the provisions of the Act, and that the clerk 
 shall be reimbursed out of the general district rate all costs and 
 damages. Where public health Acts, or local Acts for the 
 improvement of towns, and the authorisation of public works to be 
 effected through the medium of trustees or commissioners, or a 
 board, enact that the trustees or the commissioners, or the board, 
 shall and may sue and be sued in the name of their clerk, it is 
 generally meant that they must so sue and be sued ; so that au 
 action for a wrong done in the execution of the Act cannot be 
 brought against individual commissioners or trustees, or individual 
 members of the board. In some cases these statutes require the 
 action to be brought against the clerk (a) ; in others they require 
 the action to be brought against the board in its statutory name, as 
 a quasi-corporate body (h). If it is sued in a wrong corporate 
 name, the misnomer must be pleaded in abatement. 
 
 Pleadings — Plea of not guilty. — The 5 & 6 Vict. c. 97, s. 3, 
 repeals so much of any clause or provision in any public local and 
 personal Act, or local and personal Act, or in any Act of a local and 
 personal nature, as enables any party to plead the general issue 
 only, and to give any special matter in evidence. The plea of 
 not guilty by statute, therefore, is not available for railway com- 
 panies, gas companies, trading corporations, local commissioners, 
 or their subordinates, or any persons acting in the execution of 
 local Acts for the improvement, lighting, and paving of towns, 
 unless there is some special enactment in that behalf overriding 
 the provisions of the last-named statute. And if the defence of 
 the want of notice of action is founded on the provisions of a local 
 and personal Act, it must be specially pleaded, and cannot be given 
 in evidence under the plea of not guilty by statute (c). Thus, a 
 railway company, whose local and personal Act requires notice of 
 action to be given to the company, must plead the want of such 
 notice specially (d) ; and persons who claim to have acted under 
 local Acts for paving, lighting, watching, or cleansing towns (e), or 
 any of the local and personal Acts requiring notice of action to be 
 given, must plead specially the want of such notice. If upon the 
 face of the declaration of the cause of action there is nothing to 
 
 (2) See ante, p. 749. (c) Davey v. Wane, 14 M. & W. 208. 
 
 (a) Allen v. Hayviard, 7 Q. B. 793. (d) Edwards v. Gt. West. Mail. Co., H 
 
 Huch V. WiUiams, 3 H. & N. 308. C. B. 650. 
 
 (6) Southampton, Sc, Bridge Co. v. (e) Law v. PgM, 17 Law J., M. C. 
 
 Southampton Local Board, 8 Ell. & BI, §5, 
 814. See ante, pp. 741—743. 
 
SECT. 3.] PLEADINGS— EVIDENCE — INJUNCTION. 769 
 
 show that the action, is brought in respect of something done or 
 omitted to be done, in pursuance of the statute, the plea must 
 contain an averment to that effect, and show on the record that 
 the action is brought for some matter or cause of action in respect 
 of which notice of action ought to have been given. If it fails to 
 do this, and the matter does not appear upon the record, the plea 
 will be bad after verdict (/). 
 
 Plea, of tertder of amends before action. — It is not necessary for 
 a party who pleads a tender of amends before action to pay the 
 money into court, as the tender is not a tender of any debt, but is 
 a matter collateral to the defence. If the plaintiff chooses to 
 renounce the tender, and prefers the chance of what he may gain 
 by verdict, he has no claim to the amount tendered, and if the 
 verdict goes against him he gets nothing {g). 
 
 Pleas of justification under the authority of an Act of Parlia- 
 ment. — When the defence relied upon is that the act complained 
 of was done under the authority of an Act of Parliament, the 
 defendant may justify under the Act, unless the matter of justifica- 
 tion is authorized to be given in evidence under a plea of not 
 guilty. When the defendant justifies under the statute, he may 
 plead generally that the several acts, matters, and things of which 
 the plaintiff complains, were lawfully done by the defendant in 
 exercise, and by virtue of the powers and authorities given for that 
 purpose to the defendant by an Act of Parliament made, &c., inti- 
 tailed, &c. (A). 
 
 'JEvidence at the trial — Proof of notice of action. — When the 
 
 statute requiring notice of action to be given specially directs that 
 
 no evidence shall be given of anything not included in the notice, 
 
 the plaintiff must prove the giving of the notice, in order to lay a 
 
 , foundation for the other evidence (f). 
 
 Povjer of the Court of Chancery to grant an injunction to prevent 
 unnecessary injury from the execution of statutory powers. — The 
 statutory right to compensation given by Act of Parliament to 
 persons sustaining injury from the exercise of statutory powers, 
 does not abrogate the regulating and restraining jurisdiction of the 
 Court of Chancery, for nothing would be more pernicious than to 
 leave the large and ample powers so frequently conferred by Act 
 of Parliament free from all control. Persons, therefore, having 
 such powers will be restrained from exercising them so as to inflict 
 avoidable and unnecessary injury upon others. Thus, where a 
 
 (/) Oarton t. Gt. West. Rail. Co., E. 961. As to the replication to this plea, 
 
 B & E. 837, 846. Bee Brine v. Qt. West, Bail. Co., .31 Law 
 
 {g) Jones v. Oooday, 9 M. & W. 744. J., Q. B. 101. 
 
 (h) Beaver -v. Man/or of Manchester. 8 (i) Johnson v. Lord, M. & M. 444 ; 
 
 Ell. & Bl. 44; 26 Law J., Q. B. 311. agd gee aftte,pp, 730— 733 j j3os«,oh. 21, 
 WatUns T. at. North, Ml, Cp., IS Q. B, 
 
 p D D 
 
770 NUISANCES CREATED UNDEE A STATUTE. [CHAP. XVI. 
 
 railway company, in the exercise of its statutory powers, com- 
 menced the building of a bridge across a miU-raoe in such a way 
 as to diminish the full force of the current and lessen the working 
 power of the mill, the Lord Chancellor by injunction prevented the 
 erection of any bridge over the stream with arches of less dimen- 
 sions than those recommended in the report of a particular 
 engineer (]c). Here it was shown that the bridge was altogether 
 wrongly constructed, and the work negligently and unskilfully 
 done ; but where there is no proof of negligence, and the accruing 
 injury arises naturally and necessarily from the doing of what is 
 authorized to be done, the court cannot interfere, but must remit 
 the injured party to the statutory compensation for the damage, 
 where that is provided (J). 
 
 The court will by injunction restrain public boards and com- 
 missioners from doing acts in excess of the statutory powers 
 intrusted to them (m), and from carrying out what they may be 
 pleased to call the spirit of the Act in an airbitrary manner {n). 
 
 The 68th section of the Eailway Clauses Act, 1845, (8 & 9 
 Vict. c. 20,) enacts that the company shall maintain certain works 
 for the accommodation of the owners and occupiers of lands adjoin- 
 ing the railway, such as gates, fences, culverts, drains, watering- 
 places for cattle in certain cases, &c. ; and the 69th section enacts 
 that if any difference arises between the company and such owners 
 or occupiers as to the kind, number, size, maintenance, &c., of such 
 works, it shall be determined by two justices. The Court of 
 Chancery, therefore, will, as a rule, refuse to interfere in such 
 casfes (o). 
 
 Injunction to restrain nuisances created ly pullic lodies acting in 
 the exercise of statutory powers. — ^Where commissioners of sewers 
 and boards of health have obtained statutory powers of drainage 
 into rivers, streams, and natural watercourses, the power must be 
 exercised so as not to create a nuisance or interfere with the 
 private rights of individuals (^). If a riparian proprietor has a 
 right to enjoy a river so far unpolluted that fish can live in it, and 
 cattle drink of it, and the town council of a neighbouring borough, 
 professing to act under statutory powers, pour their house-drainage 
 and the filth from water-closets into the river in such quantities 
 that the water becomes corrupt and stimks, and fish will no longer 
 live in it, nor cattle drink it, the court will grant an injunction to 
 
 (h) CoaU V. Clarence Sail, Go., 1 Eubs. {n) TinkW y. WandswoHli Bowrd of 
 
 & ^. 181. Works, 1 Giff. 417 ; 2 De G. & J. 261. 
 
 (?) Sta/mton v, Metrop. Booffd, i'C, 23 Mangdey v. Mid. Bail. Co., L, B, 3 Cli, 
 
 Bear. 232 ; 26 Law J, Ch. 300, . Bid- App. 306. 
 
 dMy. St. George's Vestry, 83 Law J., (o) Hood v. NorthEast. Mwy., L. R., 
 
 ^■"/t^,. ^ . JlE<J.Ca.ll6. 
 
 T Kl' "?«■?. ''■po^of^i^n of Rochdale, (p) Catorv. Lewisham Board of WorJcs, 
 
 U tv., 10 Eq. Ca, 354, 5 B. ife S, 1 15, See mte, jjp.isr, 743 et sfcj, 
 
SECT. 3.] INJUNCTION TO PEBVENT. 771 
 
 prevent the continued defilement of the stream, and to relieve the 
 riparian proprietor from the necessity of bringing a series of actions 
 for the daily annoyance {q). 
 
 In deciding on the right of a single proprietor to an injunction, 
 the court cannot take into consideration the circumstance that a 
 vast population will suffer hy reason of its interference. " There 
 are cases at law," observes Sir W. P. Wood, V.C., " in -which it has 
 been held that where the question arises between two portions of 
 the community, the convenience of one may be counterbalanced by 
 the inconvenience of the other, where the latter are far more 
 numerous. But in the case of an individual claiming certain 
 private rights, and seeking to have those rights protected, the 
 question simply is, whether he has those rights, and not whether 
 a large population will be inconvenienced by measures taken for 
 their protection " (r). 
 
 Injunction to prevent misuse hy companies and public bodies of 
 land acquired by them under statutory authority. — ^Acts of Parlia- 
 ment compelling landowners to part with portions of their property 
 for purposes considered beneficial to the public, are regarded as 
 contracts made by the legislature on behalf of aU persons interested 
 under them, and the purposes for which the land is taken are of 
 the essence of the contract, so that the landowner may obtain an 
 injunction to restrain the company from taking the laud for 
 another and dijBferent purpose (s), or from devoting it to such 
 purpose, if they have already taken it (t). "The principle is this, 
 that when persons embark in great undertakings, for the accom- 
 plishment of which those engaged in them have received authority 
 from the legislature to take compulsorily the lands of others, 
 making to the latter proper compensation, the persons so authorized 
 cannot be allowed to exercise the powers conferred on them for any 
 collateral object " (u). But although this is so with regard to Acts 
 of Parliament authorizing a company of adventurers, for their own 
 profit, to take compulsorily the lands of others, the case is different 
 where the legislature has entrusted an existing public body, such 
 as the corporation of a city, with authority to take lands oompul' 
 sorHy for the purpose of public improvements, and not for gain, 
 and in such case a more liberal construction as to the purposes for 
 which the land is taken will prevail (a?). But they must still, of 
 
 {q) Wood, V.-C, Att.-Gen. v. Borough (t) Bostock T. North Staff. Sail. Go., 3 
 
 of Bwmmgham, 4 K, & J. 528. Mt.- Sm. & (J. 291 ; 4 Ell. & Bl 798. See 
 
 Qrni. V. Metmp. Board, ^c, 1 H. & M. Canngton t. Wycombe Mil. Co., L. B,, 
 
 298. 2 Eq. Ca. 825 ; 3 Ch. App, 377. 
 
 (r) Att.-Oen.-v.Bofough of Birmingham, («) Lord Cranworth, _ in Galloway t, 
 
 ut sup. See Maplwd v. Thames Valley Corporation of I/onion, infra. 
 Mail, Co., L. E., 2 Ch. App. 147. (w) Gallowas/ t. Corpora^n of Lari^o^, 
 
 (a) Flower V. L., B., mfl! 8, Qoa^tfi^il, li, R, % H, gf li, 34. 
 
 Co,, 8 Dv. fe S. 8?0. 
 
 p » n 2 
 
772 TJNAUTHOEIZED EXEECISE OF STATUTORY POWERS. [CHAP, XVI. 
 
 course, domply with the provisions entitling them to avail them- 
 selves of their compulsory powers {y). Nor does the same strict 
 construction prevail where land is taken, not compulsorily under 
 a statute, but in pursuance of an option reserved hy agreement 
 inte^ partes (e). 
 
 If any puhlic body authorized to enter land and construct works 
 in the execution of statutory powers, exceed the authority conferred 
 upon them, and do acts ultra vires, the court will by injunction 
 restrain their proceedings (a), and confine them within the limits 
 of their jurisdiction (&), " otherwise the result may be, that after 
 your property has been taken and destroyed, after your house 
 has been pulled down and a railway substituted in its place, you 
 may have the satisfaction of discovering that the railway company 
 was wrong, and that a pecuniary compensation is the only 
 satisfaction you can receive for the injury" (c). Thus, where 
 a local board of health withdrew its opposition to a railway 
 biU, on the insertion of a clause that the bridges within their 
 district were to have a certain gradient, and the company could 
 not make the bridges of such a gradient without encroaching on 
 adjoining lands, against which the adjoining proprietor obtained 
 an injunction, and the company consequently made the bridges 
 of a steeper gradient, the court granted a mandatory injunction 
 to the company to alter the bridges (d). So where, by a local Act, 
 commissioners were appointed to pave, drain, and otherwise improve 
 a certain district, and to levy rates for that purpose, the court 
 granted an injunction to restrain them from applying the 
 moneys produced by such rates towards the promotion of a bill 
 in Parliament, the object of which was the extension of their 
 district, although the bill had received the approval of the rate- 
 payers («). 
 
 And whenever public bodies, acting in the exercise of statutory 
 powers, have failed to comply with any condition imposed by 
 statute for the protection of the public, the Court of Chancery will, 
 as we have seen, by injunction prevent the exercise of the statutory 
 avithority until the condition precedent has been strictly ful- 
 
 (y) Thomas v. Daw, L. E., 2 Ch. 409 ; L. E., 2 Exch. 356 ; 4 Eng. & Ir. 
 
 A.pp. 1. App. 628. If the shareholders have 
 
 (2) Butt T. Imp. Gas Co., L. E., 2 Ch. ratified the act, see Phosphate of Lime 
 
 App. 158. See Cwrimgton t. Wycomle Co. v. Green, L. E., 7 C. P. 43. 
 
 Bail. Co., supra. (c) Vwn. Nav. Co. v. North Mid. EaU. 
 
 (a) See Att.-Gen. v. -Ely, &e., Rail. Co., Co., 1 Kail. C. 154. 
 
 L. E., 6 Eq. Ca. 106; ibid. 4 Ch. App. (d) Att.-Oen. v. Mid. Kent Sail. Co., 
 
 194 ; 38 Law J. Ch. 258, as to making a L. R, 3 Ch. App. 100. 
 
 more convenient road. (e; Att.-Oen. v. West ffwrtlepool Im- 
 
 (V) TinTchr v. Warndsworth District proaiement Commissioners, h.'R.tW^q.Ca,, 
 
 Board, 2 De 1. & Q. 273. As to con- U2. See Secf. r. Mayor of Sheffield, WR., 
 
 tracts ultra vires, see -Taylor v. Chi- 6 Q, B, 652, 
 Chester and MiUhwst Mil. Co,, 4 H, ^ C, 
 
SECT. 3.] INJUNCTION TO EESTEAIN. 773 
 
 filled (/). Thus, it will restrain a railway company from using land 
 for which, and the injury to it, the compensation assessed under 
 the Lands Clauses Act has not been paid, although the railway has 
 been opened for public use {g) ; although in cases where the effect of 
 such an injunction would be to make the land useless to both 
 parties, an injunction will be refused and a receiver appointed 
 instead (K) ; nor wiU an injunction be granted from running trains 
 over the land until its sale, which has been ordered by the 
 court {i). The Court of Chancery has also, it seems, jurisdiction 
 to restrain an application to Parliament to enable a company to 
 abandon the formation of certain lines, and the statutable contracts 
 that they have made thereunder, or to restrain an improper appli- 
 cation to Parliament for a private Act, though such a jurisdiction 
 can hardly ever be exercised Qc). " You cannot restrain a man from 
 going to Parliament on public grounds, . , . but if he is 
 going on in violation of a plain contract, which is personal to him- 
 self, with which the public interests have nothing whatever to do, 
 you cannot, under the pretence that 'he is going to Parliament^ refuse 
 the relief which, if there were no .question about Parliament, this 
 Court would be bound to give " {V). 
 
 (/) Oibson Y. Sammersmith Sail. Co., App. 751. The vendor, however, liae no 
 
 ajite, p. 747. Cosens y. Bognor Rail. Co., lien for the costs of the arbit:?atiou : 
 
 L. K., 1 Ch. App. 594. See Kent Coast Ferrers (Earl of) v. 5'iJrf. amd Utt. Rail. 
 
 Rail. Co. V. Land., Chat., and Dover Co., L. K., 13 Eq. Ca. 524. 
 Rail. Co., L. E., 3 Ch. App. 656. The (h) Pell v. Northampton and Banbury 
 
 company would also be liable in trespass Rail., L. K., 2 Ch. App. 100. Munns t. 
 
 if they had taken the plaintiff 's land, Isle of Wight Rail., L. K., 8 Eq. Ca. 653 ; 
 
 without performing the statutory condi- 5 Ch. App. 414. 
 
 tions : CranwellY.Mayor,il:c.,of London, ii) LycettY. Staff.andUttox.Rail.,'h.'R., 
 
 L. K, 5 Exch. 284. .13 Eq. Ca. 261. 
 
 (g) Walker y. Ware, <i:c. Rail. Co., (Ic) Steele v. North Metrop. Rail. Co., 
 
 Ii. R., 1 Eq. Ca. 195. FiddY. Carnarvon 'L. E., 2 Ch. App. 237. Re Lond., Chat., 
 
 and Llanberris Rail. Co., L. E.., 5 Eq. Ca. and Dover Rail. Ex parte Ba/rtridge, 
 
 190. St. Oermans {Earl of) v. Crystal L. R., 5 Ch. App. 671. 
 Palace Rail., L. R., 11 Eq. Ca. 568. (1) Per Bacon, V. G., Telford y. Met. 
 
 Stretton v. Ot. Western Rail., L. R. 6 Ch. Board of Works,.!,. R., 13 Eq. Ca. 594. 
 
774 
 
 CHAPTER XVII. 
 
 or LIBEL AND SLANDER (a). 
 
 Section I. — Of libel or written slander. — 
 Distinction between slander by word 
 of mouth, and slander in a published 
 writing — Oral slander rendered action- 
 able by being printed and published 
 — ^Exemption of the author, and lia- 
 bility of the publisher — What writings 
 are libellous and actionable — Of malice 
 — Privileged writings and communi- 
 cations — Defamatory writings in courts 
 of justice — Defamatory petitions to 
 the Queen, to Parliament, or to 
 ministers or officers of state — Orimi- 
 natoiy communications made in dis- 
 charge of a public or private duty — 
 Criminatory pastoral letters — Defa- 
 matory letters respecting clergymen — 
 Privileged communications between 
 relations and friends — Privileged com- 
 munications by persons specially in- 
 terested in the subject-matter of the 
 communication — Eeckless and incon- 
 siderate communications — Disclosures 
 made at the plaintiff's request — An- 
 swers to inquiries — Communications 
 between subscribers to a charity — ^Pri- 
 vileged communications respecting the 
 character of servants — Comments in 
 excess of the privilege— Effect of ad- 
 dressing privileged communications to 
 the wrong person — Report in news- 
 papers of trials and proceedings preli- 
 minary thereto — Reports of speeches in 
 Parliament, or at public meetings — 
 
 Reviews and criticisms in public 
 papers — Comments upon the public 
 character of public men — Disparaging 
 criticisms by one journalist or trades- 
 man upon another. 
 
 Section II. — Of oral slander. — ^Defama- 
 tory words not actionable without 
 proof of special damage — Defamatory 
 words actionable per se — In what casgs 
 actionable words are rendered not 
 actionable by precedent or subsequent 
 words — Defamatory words concerning 
 tradesmen and professional men — 
 Words imputing official misconduct 
 — ^Words rendered actionable by rea- 
 son of special damage — Slanderous 
 denunciations from the pulpit causing 
 loss of situation or employment — Ef- 
 fect of the dismissal being a wrongful 
 dismissal — Unauthorized repetition 
 of verbal slander — Privileged com- 
 munications by word of mouth — 
 Privileged charges and accusations of 
 felony — ^Privileged statements before 
 magistrates and judicial tribunals — 
 Privileged comments by magistrates 
 and judges — Of the interpretation and 
 application of slanderous words — Slan- 
 der of title. 
 
 Section III. — Of actions and indictments 
 for label emd slander. — Consolidation of 
 actions — Parties, pleadings, defences, 
 and evidence — Damages recoverable 
 — Indictment for libel. 
 
 SECTION I. 
 
 OP LIBEL AND WEITTEN SLANDER. 
 
 Of the distinction let%oeen slander ly word of mouth and slander 
 in a published writing. — Slander in writing or in print has always 
 teen considered in our law a graver and more serious wrong and 
 injury than slander hy mere word of mouth, inasmuch as it is 
 accompanied with greater coolness and deliberation, indicates 
 
 (a) See Starkie on Slander and Libel, 3rd ed. (1869). 
 
SECT. l.J FEINTING, ETC., OF ORAL SLANDER. 775 
 
 greater malice, and is in general propagated wider and further than 
 oral slander. Hence words of a depreciatory character, which, if 
 spoken only, would not be actionable, may become so by being put 
 into writing or print and published. " There is a very material 
 distinction," observes Gould, J., " between libels and words. A 
 libel is punishable both criminally and by action, when mere 
 speaking the words would not be punishable in either way." For 
 speaking the words " rogue " and " rascal " of any one, an action 
 will not lie ; but if these words were written and published of any 
 one, an action would lie (6). Merely to caU a man a swindler, or a 
 cheat, or dishonest person by word of mouth, is not actionable (c), 
 unless it be spoken of him in his trade or business, so as to have 
 damaged him with his customers {d) ; but if such words are 
 published in writing or printing, they are actionable per se (e). 
 Verbal reflections upon the chastity of a young lady are not 
 actionable, unless they have prevented her from marrying, or have 
 been accompanied by special damage ; but if they are published in 
 a newspaper, they are at once actionable, and siibstantial damages 
 are recoverable (/). 
 
 Before, therefore, a person gives general notoriety to oral 
 calumny, by circulating it in print, he must be prepared to prove 
 its truth to the letter ; for he has no more right to take away the 
 character of the plaintiff, without being able to prove the truth of 
 the charge that he has made against him, than he has to take his 
 property without being able to justify the act by which he pos- 
 sessed himself of it. "Indeed," observes Best, C.J., "if we reflect 
 on the degree of suffering occasioned by loss of character, and 
 compare it with that occasioned by loss of property, the amount of 
 the former injury far exceeds that of the latter " (g). 
 
 Oral slander rendered actionable ly leing printed and published 
 — Exemption of the author, and liability of the publisher. — Oral 
 slander uttered under circiimstances not rendering it actionable, 
 may therefore become actionable by being printed and published, 
 and the publisher may become responsible in damages for pub- 
 lishing and circulating in writing what would not be actionable so 
 long as it was circulated only by word of mouth. In cases of this 
 sort, the author who has spoken the words is exempt from all legal 
 responsibility, while the man who prints them and circulates them 
 in writing, and all who aid and assist therein, are liable to an 
 action for damages (h). "What has been said by word of mouth is 
 
 (i) Villiers t. Mousley, 2 Wils. 403 ; 5 (g) De Crespigny v. WettesUy, 5 Bing. 
 
 Co. 125 b. 406. 
 
 (c) Savile v. Jardine, 2 H. Bl. 532. (h) M'Gregor t. Thwaites, ,3 B. k C. 
 
 (d) Bac. Abr. Slanbee, B. 35. Thorley v. £ord J{eri-y, 4 Taunt. 
 
 (e) Janson v. Stuart, 1 T. E. 748. 354. 
 (/) Bl, Com., by Christian, 126, n, 6. 
 
776 LIBEL, [CHAP. XVIL 
 
 known only to a few persons, and, if the statement be untrue, the 
 imputation cast upon any one may be got rid of ; the report is not 
 heard of beyond the circle in which all the parties are known, and 
 the veracity of the accuser, and the previous character of the 
 accused, wiU be properly estimated. But if the report is to be 
 spread over the world by means of the press, the malignant false- 
 hoods of the vilest of mankind, which would not receive the least 
 credit where the author is known, would make an impression 
 which it would require much time and trouble to erase, and which 
 it might be difficult, if not impossible, completely to remove." As 
 to the question of the publisher of a libel being allowed to 
 exonerate himself from the responsibility of the act by naming the 
 author, " Of what use is it," observes Best, J., " to send the name 
 of the author with a libel that is to pass into a part of the country 
 where he is entirely unknown ? The name of the author of a 
 statement wiU not inform those who do not know his character, 
 whether he is a person entitled to credit for veracity or not ; 
 whether his statement was made in earnest or by way of joke ; 
 whether it contains a charge made by a man of sound mind or the 
 delusion of a lunatic " (i). 
 
 It is no defence, therefore, to an action for a libel, to show that 
 a ludicrous narrative in a newspaper concerning the plaintifi' was 
 only a repetition of a story told by the plaintiff of himself; "for 
 there is a great difference between a man's telling a ludicrous , 
 story of himself to a circle of his own acquaintance, and a 
 publication of it to all the world through the medium of a 
 newspaper" (j). 
 
 What writings are libellous and aetionaUe. — All publications in 
 writing or in print, imputing to another disgraceful, or fraudulent, 
 or dishonest conduct (k), or which are injurious to the private 
 character or credit of another (Z), or tend to render a man 
 ridiculous or contemptible in the" relations of private life, are 
 libellous, and an action for damages is maintainable against the 
 writer and publisher, unless the publication ranges within that 
 class of communications which are termed privileged communica- 
 tions, presently mentioned, or unless the libeller can prove the 
 truth of the libel. To impute td a landlord that, in putting in a 
 distress, he was colluding with an insolvent tenant, is libellous (m). 
 It is a libel, also, to describe a man in writing as an " infernal 
 villain " (n), or an " itchy old toad " (o), or as being in insolvent 
 
 (i) He Crespigny r. Wettesley, 5 Bing. (l) Fray t. Fray, Si Law J., C. P. 45 
 
 ^03- „ , . (m) Baire r. Wilson, 9 B. & 0. 645. 
 
 0) CooJc T. Ward, 6 Bing. 415. (») Bell r. Stone, 1 B. & P. 331. 
 
 (&) Dighj V. Tlmipson, 4 B. & Ad. (o) Gould, J., ViUiers v. Mousley, 2 
 
 821. Wils, 403. 
 
SECT. 1.] INSTANCES OF. 777 
 
 circumstances and unable to pay his debts {p), or as being a mere 
 man of straw {g), unfit to be trusted with money {r), or as being 
 guilty of ingratitude to his friends and benefactors, although the 
 facts upon which the charge is founded are also stated, and they 
 do not support the charge (s), or of misconduct in an office of trust, 
 or of general misconduct, corruption, or neglect of duty in the 
 management of business that has been intrusted to him to Execute. 
 
 Every publication in writing, imputing insanity to the 
 plaintiff (<), or holding him up to public hatred, contempt, or 
 ridicule, or having a tendency to make him feared, or his society 
 shunned and avoided, is a libel. To publish in writing, therefore, 
 of a man that he has been guilty of gross misconduct, and has 
 insulted two females and a gentleman in the most barefaced 
 manner, is a libel (w). It is a libel, also, to publish of a person 
 soliciting relief from a charitable society that she prefers unworthy 
 claims, and that she has squandered away the funds of the 
 benevolent in printing circulars abusive of the society's secre- 
 tary (v) ; or to impute in writing to the captain of a ship that his 
 ship is unseaworthy, as the imputation reflects upon the personal 
 character and professional conduct of the captain. "It is like 
 saying of an innkeeper or tea-dealer that his wine or his tea is 
 poisoned " (tw). To impute to a physician of character and 
 eminence that he is concerned in vending quack medicines is also 
 libellous ; and, therefore, if a vendor of pills falsely advertises his 
 pills as being prepared and furnished by a physician in practice, 
 without the authority of the latter, he is guilty of a libel upon the 
 physician {x). But merely to write of a person that he has done 
 something in bad taste or manner {y), or that he has kept company 
 unworthy of his position in society, or of his position in his 
 profession, is not actionable (2). 
 
 To publish falsely in placards or newspapers, or through the 
 medium of letters or writings, of a publican, that his licence has 
 been refused (a), or of a tradesman, that he knowingly sells bad 
 articles, or of a gunsmith or manufacturer, that he is a bad 
 workman and unable to turn out a good gun or other article, is 
 actionable ; but mere puffs between rival tradesmen, the one 
 
 ( «) Metrop. Salocn Omnibus Co. v. (b) Olarh v. Freenum, 11 Beav. 117. 
 
 Hawkins, 4 H. & N. 116; 28 Law J., As to injunctions against the publication 
 
 Exch. 201. See Cox v. Lee, L. B*., 4 of libels, see Dixon v. Holden, L. E., 7 
 
 Excli' 284, per Kelly, C.B. Eq. Ca. 488. Springhead Spinning Co. 
 
 (a) Eaton v. Johns, 1 Dowl. N. S. 612. v. M.iley, L. E., B Eq. Ca. 561. Mvlhern 
 
 »•) CUese V Scales, 10 M. & W. 488. v. Ward, L. E. 1 3 Eq. fa. 619. 
 
 (s) Cox V. Lee, L. E., 4 Exoh. 284. (y) But see Jenner v. A' Beckett, L. E., 
 
 (t) Morgan v. Lingen, 8 L. T. E., N. S. 7 Q. B. 11. 
 
 800 (^) Olay T- Holerts, 11 W. E. 649; 9 
 
 («) Clement v. Chims, 9 B. & 0. 176. Jur. N. S. 580. 
 
 (v) Hoa/re v. Sikerlock, 12 Q. B. 624. (a) BigneU v. Buzswrd, 3 H. AN. 217 ; 
 
 (w) Ingram v. Lwaaon, 8 Sc. 478. 27 Law J., Exch, 355. 
 
778 LIBEL AND SLANDEE. [CHAP. XVIL 
 
 depreciating the other's wares and exalting his own above them, 
 are defensible (6). It is a libel, also, to say in writing of the 
 publisher of a newspaper that he is a "Ubellous journalist," for the 
 words either mean that the plaintiff has been habitually pub- 
 lishing libels in his paper, or that he has permitted them to be 
 published from base and malicious motives. To show, therefore, 
 that the plaintiff has been guilty, on one occasion only, of 
 publishing a libel, is not enough to justify the use of the term 
 " libellous journalist," but the evidence would go in mitigation of 
 damages (c). 
 
 "Where a man complains "of a libel, written respecting an illegal 
 transaction in which he is engaged, the illegality of the transaction 
 is an answer to his complaint ; but fraud ultra that transaction is 
 not, on that account, to be imputed to him with impunity {d). If, 
 therefore, a man is charged in writing with having cheated at dice, 
 he is entitled to recover damages for the libel, although gambling 
 and playing at dice are illegal (e). 
 
 Of inalice. — Malice is said to be the gist of an action for 
 defamation or slander, but the word is not used in the popular 
 sense, but in the sense the law puts upon the expression. In 
 every case of ordinary libel, not being a privileged communication, 
 the law implies malice from the very fact of the publication of the 
 defamatory matter. "Malice in common acceptation," observes 
 Bayley, J., " means ill-will against a person, but in its legal sense 
 it means a wrongful act done intentionally without just cause or 
 excuse. If I give a perfect stranger a blow likely to produce death, 
 I do it of malice, because I do it intentionally, and without just 
 cause or excuse. If I maim cattle without knowing whose they 
 are, or if I poison a fishery without loiowing the owner, I do it of 
 malice, because it is a wrongftd act done intentionally. And if I 
 traduce a man, whether I know him or not, and whether I intend 
 to do him an injury or not, the law considers it as done of malice, 
 because it is wrongful and intentional. It equally works an injury 
 whether I meant to produce an injury or not, and if I had no legal 
 excuse for the slander, there shall be a remedy against me for the 
 injury it produces. And the law recognizes the distinction between 
 these two descriptions of malice, — malice in fact, and malice in 
 law, in actions of slander" (/). 
 
 Where, therefore, the circumstances under which the com- 
 munication was made do not present any justifiable occasion 
 for speaking or writing the defamatory matter, or show it to have 
 
 (5) Hwrman v. Delaney, 2 Str. 898. {d) Best, C, J., Yntcuri v. Clement, 3 
 
 Evams v. IlaHovi, S Q. B. 624. Bing. 441. 
 
 (c) Wakley v. Cooke, 4 Exch. 518. (e). 6reville.\. Chaprmn, 5 Q. B. 744. 
 
 (/) Bromage v. Prosser, 4 B. & 0. 255. 
 
SECT. 1.] MALICE— PEIVILEaED COMMUNICATIONS. 779 
 
 been done either in pursuance of some duty, or for the purpose of 
 endeavouring to enforce a right, the communication is deemed in 
 law to be malicious ; and the circumstance of the juiy having 
 negatived actual malice in such cases does not get rid of the 
 effect of legal malice, and does not render the communication 
 justifiable (g). 
 
 Privileged writings and communications. — ^When a communi- 
 cation is fairly made by one person to another in the discharge 
 of some public or private duty, -whether legal, moral, or social, 
 or in the conduct of his own affairs in matters where his interest 
 is concerned, "the occasion," observes Parke, B., "prevents the 
 inference of malice, which the law draws ^ from unauthorized 
 communicatioTis, and affords a qualified defence, depending upon 
 the absence of actual malice. If fairly warranted by any reasonable 
 occasion or exigency, and honestly made, such communications are 
 protected for the common convenience and welfare of society, and 
 the law has not restricted the right to make them within any 
 narrow limits " (h). " The rule," observes Lord Campbell, " is, that 
 if the occasion be such as repels the presumption of malice, the 
 commimication is privileged, and the plaintiff must then, if he can, 
 give evidence of actual malice : if he gives no such evidence, it is 
 the office of the judge to say that there is no question for the jury, 
 and to direct a nonsuit or a verdict for the defendant ; otherwise 
 there might be a question for the jury in every case where a master, 
 however fairly, gives the character of a servant; and if they 
 conceived that there was malice lurking in the mind of the master, 
 they might give a verdict for the plaintiff on the ground merely of 
 the communication having taken place; and this would apply 
 to aU cases in which the occasion has been said to repel the 
 presumption of malice " (i). " A communication of this sort," 
 observes Alderson, B., " is not strictly what is called a privileged 
 communication, but is rather a communication privileged by the 
 occasion, and if it was made land fide the particular expressions 
 ought not to be too strictly scrutinized, provided the intention of 
 the defendant was good " (/). 
 
 Whether the circumstances under which a communication was 
 made constitute it a privileged communication or not is a question 
 which tbe court has assxuned the jurisdiction of determining (k). 
 But if there is any dispute about those circumstances, the question 
 
 (a) Maule, J., Wenmm t. Ash, 13 C. B. Adams, 33 Law J., C. P. 94. CowUs t. 
 
 845 Poife, 34 Law J., Q. B. 247. 
 
 (h) Toogood v. Spyrmg, 1 C. M. & E. H) Taylor v. HawUns, 16 Q. B. 321. 
 
 193. SomermUe v. SawUns, 10 C. B. (/) Woodiuiard \. Lande); 6 C. & P. 
 
 583. Croft V. Stevens, 7 H. & N. 570 ; 550. Seei)os«,p. 782. 
 31 Law J.. Exch. 143. Whiideg y. (h) Stace v. Griffith, L. K., 2 P. C. Ca. 
 
 420. 
 
780 LIBEL AND SLANDEE. [CHAP. XVII. 
 
 must be submitted to a jury. It is essential to the existence 
 of the privilege and protection that the communication, under 
 whatever circumstances made, should be believed to be true by 
 the party making it ; for a person cannot shelter himself under the 
 privilege if he believes the charge imputed untrue, unless he at the 
 same time declares his belief of its untruth. If a man knowingly 
 makes a false charge, there is at once actual malice, and the 
 privilege is blown to -the winda 
 
 Where the auditors of a public company, employed in accordance 
 with the provisions of the articles of association, made a report 
 reflecting upon the conduct of the company's manager, and the 
 directors had the report printed -and circulated among the share- 
 holders, and it was used at an adjourned meeting, it was held that, 
 the directors having , done -nothing contrary to the usual practice, 
 the communication was privileged> and that, in the absence of 
 express malice, no action lay against the directors for such 
 publication (I). " Independently of any authority," says MeUor, J., 
 "I am quite prepared to hold that a company having a great 
 number of shareholders all interested in laiowing how their officers 
 conduct themselves, are justified in making a communication in a 
 printed report relating to the conduct of their officers to all share- 
 holders, whether present or absent, if the communication be made 
 without malice, and lond Jide." "1 think," further observes 
 Hannen, J., "that the failure of the directors to report to the 
 shareholders a statement made by the auditors upon their own 
 responsibility of what they found to be the state of the accounts, 
 •might have led the directors into a position of great difficulty." 
 
 Defamatory writings 4n courts of justice. — ^An action for defama- 
 tion will not lie for anything sworn or stated in the course of a 
 judicial proceeding before -a court of competent jurisdiction, such 
 as defamatory bills or proceedings filed in Chancery or in the 
 ecclesiastical courts, or affidavits containing false and scandalous 
 assertions against others (m). Therefore, if a man goes before 
 justices of the peace and exhibits articles against the plaintiff 
 containing divers false and scandalous charges concerning him, 
 the ,plaintiff cannot have an action for a libel in respect of any 
 matter contained in such articles, for the party preferring them 
 " has pursued the ordinary course of justice in such a case ; and if 
 actions should be permitted in such cases, those who have just 
 cause for complaint would not dare to complain, for fear of infinite 
 vexation " (^). There is a large collection of cases where parties 
 
 (1) Lamleae t. Anglo~Ilgyptian Cotton ionv. Dohniet, Cro. Jae.' 432. Astley T. 
 
 Co., L. E., 4 Q. B. 262 ; 38 Law J., Q. B. Youtige, 2 Burr. 809. 
 
 129. (w) CuUej- T. Dixon, 4 Co, 14 h, 
 
 {m) Earn y, Ztimley,UM. 113. Wee- 
 
SECT. 1.] PETITIONS TO PARLIAMENT, ETC. 781 
 
 have from time to time attempted to get damages for slanderous 
 and malicious charges contained in affidavits made in the course of 
 a judicial proceeding, but in no one instance has the action been 
 held to be maintainable (o) ; but the libeller may be punished, and 
 the abuse repressed by a prosecution for perjury, the result of 
 which is to make the libeller infamous if he is convicted {p). 
 
 Where the cause of action against a defendant was, that he 
 falsely and maliciously, and without any reasonable or probable 
 cause, went before a Commissioner for takijig oaths in the Court 
 of Chancery, and swore an affidavit stating of the plaintiff, in 
 his character of an auctioneer, that he conducted his business 
 fraudulently and improperly, and that he was not, in the deponent's 
 opinion, a fit and proper person to be intrusted with the sale of 
 certain property then the subject of a suit in the Court of Chancery, 
 and the court, upon the evidence before it, decided that the plaintiff 
 was not a fit and proper person to conduct the sale, it was held that 
 the affidavit, being made in the course of a judicial proceeding, 
 could form no ground of action (cj). But if the court has no 
 jurisdiction in the matter, and no right to entertain the proceeding, 
 and the charge is recklessly and maliciously made, it will not be 
 regarded as a privileged communication (r). 
 
 Bef amatory 'petitions to the Queen, to Parliament, or to ministers 
 or officers of state respecting the conduct of magistrates and officers. — 
 As aU persons have an interest in the pure administration of public 
 justice, and as it is the duty of all persons who witness misconduct 
 on the. part of magistrates to try by aU means in their power to 
 bring such misconduct to the notice of those whose duty it is 
 to inquire into and punish it, it has been held that petitions 
 and memorials prepared bond fide, and forwarded to the proper 
 authorities, complaining of the conduct of magistrates, and conr 
 ' taining statements and allegations honestly believed to be true, 
 are privileged communications ; but if they are made on frivolous 
 grounds, or with knowledge of their being untrue, or without 
 knowledge of their truth or falsehood, and without inquiry, when 
 inquiry would have made the truth apparent, and would have 
 shown the allegation of misconduct false, the calumniator wiU be 
 deemed to have acted from malicious motives, and his statements 
 will not be privileged (s). Petitions to the Crown upon matters 
 respecting which it cannot directly interfere, and petitions to 
 
 (o) Henderson v. Broomhead, 4 H. & N. Law J., C. P. 195. 
 
 579 ; 28 Law J., Exch. 360. (r) Buckley v, Wood, 4 Co. 14^, lewis 
 
 (p) As to a certificate from a mHitary v. Levy, BU, Bl, & Ell. 554 ; 27 jjaw J., 
 
 officer that his inferior officer left his Q. B. 282. 
 
 quarters without permission, see KeigUy (s) Marris<^n t. Bush, 5 Ell. & Bl, §54 ; 
 
 V. Bell, 4 F. & F. 763. 25 Law J., Q. B. 25. Sturi v. Btaga, 10 
 
 (2) SemY. Smith, 18 C, B, 126 ; gg Q, B. 906, •. ' ' ' ^5' 
 
782 LIBEL AND SLANDEK, [CHAP. XVIL 
 
 Parliament, although the petitioners, besides presenting them to 
 the House, print them and distribute them amongst the members, 
 fall within the same rule. All these are pioteoted, that men may 
 not be prevented by the dread of a prosecution or action from 
 making communications which may be beneficial to the public {t). 
 
 Defamatory statements respecting the conduct of public officers, 
 contained in an application for the redress of a grievance, or to 
 expose some public abuse, made iond fide, to one of the king's 
 ministers, who is supposed to have authority to afford redress, do 
 not render the person making the application liable to an action. 
 Thus, where the creditor of an officer in the army sent a petition 
 to the secretary-at-war, inclosing bUls of exchange accepted by the 
 officer, and containing statements derogatory to the character of 
 the officer as a man of honour, and concluded with a prayer that 
 the oficer might be ordered to discharge the debts due on the bills, 
 it was held, that although neither the secretary-at-war nor the king 
 had power to order the money to be paid, yet that if the jury 
 thought that the petition contained only an honest statement of 
 facts, according to the understanding of the person who sent it, 
 and that it was addressed to the secretary-at-war 'bona fide, for the 
 purpose of obtaining redress, and not for the purpose of slandering 
 the plaintiff, they ought, under a plea of not guilty, to find a 
 verdict for the defendant («). " Inasmuch as the defendant," 
 observes Maule, J., " might, reasonably enough, conceive that the 
 public officer to whom he addressed himself had power to assist 
 him in obtaining payment of a just debt, the occasion justified the 
 communication, however mistaken the defendant might be as to 
 the extent of the jurisdiction of the person to whom he was 
 addressing himself" (■«). But if the statements contained in the 
 application be wholly or partly false, that may be sufficient to 
 renew the presumption of malice, which ]pri7rvd facie the nature of 
 the communication would rebut («). See post, p. 790. 
 
 Crminato-fy commimications hy public ofikers acting in discharge 
 of a public duty. — A criminatory communication made by a clerk 
 of the peace to the justices at quarter sessions is privileged, pro- 
 vided it is confined to a statement of facts pertinent to a matter 
 which it is his duty to investigate, and contains nothing but what 
 the clerk of the peaxje believes to be true; bixt if he imputes 
 improper motives to others, and accuses them of attempts to extort 
 money by misrepresentation ; if irrelevant calumny is introduced 
 into it, or it contains strictures upon the motives and conduct of 
 others, which the fagt^ stated do uot- warrant, he will exceed big 
 
 (t) Laki V. King, 1 Saund. 132. (») W(,nmm, v. Aiii, 13 O.B. 845, 
 
 (tt) Favmm T. Im, § B, & Aid, 8«, (a;) Sim t. St,wt^ 10 q. E!, p05, 
 
SE€T. 1.] BY PUBLIC OFFICERS, CLERGYMEN, ETC. 783 
 
 privilege, and subject himself to an action for damages {y). But 
 no action will lie for statements made by a superior military or 
 naval officer of his inferior in the course of his duty, even though 
 made maliciously and without reasonable or probable cause {£). 
 
 Criminatory pastoral letters, and ^printed communications from 
 clergymen to their parishioners. — There is nothing in the position of 
 a rector of a parish, or a vicar, curate, or any other minister of 
 religion, which entitles him to publish or circulate defamatory 
 letters in his parish, and such letters, though written and published 
 under the gravest sense of duty, or the sincerest desire to improve 
 the morals of the community, are actionable, if they cast serious 
 imputations on the character or conduct of private persons. Where 
 the schoolmaster of a national school, established in a parish of 
 which the defendant was rector, had been dismissed by the 
 trustees of the school from his situation, and had then obtained 
 possession of a dissenting chapel, and opened a school there, it was 
 held that the rector had no right to circulate letters in the parish, 
 injuriously reflecting upon the conduct of the schoolmaster and the 
 tendency of his teaching, under the pretext that he was watching 
 over the souls of his parishioners, and exerting himself for their 
 spiritual welfare. The parson in this case had, in a pastoral letter 
 to divers parishioners, stigmatized the schoolmaster as not being a 
 rightly-disposed Christian, as being imbued with a spirit of opposi- 
 tion to authority and the commands of Scripture, and designated 
 his school as a schismatic school, upon which God's blessing could 
 not rest ; and he warned the rich against supporting it with sub- 
 scriptions of money, and the poor against sending their children 
 to it to be educated ; and it was held that the libel was not privi- 
 leged, and that there was evidence of malice for a jury. " What 
 was there," observes Maule, J., " in the position of the defendant, 
 as rector of the parish, which entitled him to circulate a defamatory 
 letter, not only in his own, but in the adjoining parish, and so 
 endeavour to prevent -persons from subscribing and sending their 
 children to the plaintiff's school ? It is difficult to understand how 
 the slightest right to do so can be suggested. As rector he might, 
 no doubt, visit and remonstrate with any of his flock ; but when a 
 meritorious individual is about to set up a school, of which he 
 disapproves, because he thinks it may rival the school in which be 
 takes an interest, that he should on that account cast serious impu- 
 tations on that individual, and still be considered as having 
 published a privileged communication, certainly seems a strange 
 and inconvenient doctrine. We think that there was sufflcieot 
 
 ({/) Coole V. WMes, 5 EU. & Bl. 340 : Q. B. 94 (diss. Cockburn, C. J.). Qutere, 
 24 Law J., Q. B. 867, PopJmm v. Pick' if the statements made bo false to tha 
 Iwn, 81 Law J., Exoh, 133. knowledge gf t|}e qfleev waking tfaew, 
 
784 LIBEL AND SLANDEK. [CHAP. XVIL 
 
 evidence for the jury to infer malice, and that in determining the 
 question of malice, the particular nature of the Libel itself cannot 
 be excluded from the consideration of the jury. ... In this case 
 the terms of the letter itself are not without the character of malice. 
 The endeavour to make the plaintiff's conduct a matter of spiritual 
 delinquency; to represent it as something opposed not only to 
 some worldly rule, but unchristian-like, and contraiy to what 
 would be done by a person who had faith in, and a willingness to 
 obey, scriptural precepts, are matters on the face of the libel which 
 make it proper that the jury, looking at the libel itself, should say 
 whether or not there was actual malice '' (a). 
 
 Defamatory letters respecting clergymen, addressed to the bishop 
 of the diocese, will be privileged, if there was fair and reasonable 
 cause for a resort to the bishop, but not if they were written on 
 light and frivolous grounds. Where a parishioner wrote a letter to 
 the bishop of the diocese, informing him of reports current in the 
 parish derogatory to the character of the clergyman, and throwing 
 scandal upon the Church, and praying that an inquiry might be 
 instituted, it was left to the jury to determine whether the letter 
 was written with the malicious intention of slandering the plaintiff 
 to the bishop, and giving currency to idle rumours, or with the 
 honest intention of obtaining an inquiry (&). If the writer of the 
 letter has means at hand for ascertaining whether the rumours are 
 true or false, and neglects to avail himself of them, and chooses to 
 remain in ignorance when he might have obtained full information, 
 there would be no pretence for any claim of privilege. 
 
 Privileged confidential communications between relations rejecting 
 the character of a person proposing marriage.- — Where the defendant, 
 being the son-in-law of a widow lady, to whom the plaintiff was 
 paying his addresses, wrote a letter to the lady charging the 
 plaintiff with various acts of gross misconduct, and warned her 
 against listening to his addresses, it was held that the communica- 
 tion was privileged. " If no explanation," observes Alderson, B., 
 "had been given bf the circumstances under which the letter .was 
 written, the law would, from the contents, infer it to have been 
 published with a malicious motive against the plaintiff. But when 
 it is shown that the parties were standing in circumstances of 
 confidence and near relationship towards each other, I think the 
 defendant's conduct justifiable, if he really believed in the truth of 
 the statements which he made, though such statements were, in fact, 
 erroneous, for it is for the common good of all, that communications 
 between parties situated as these were should be free and unre- 
 strained. The whole question is, whether this is a iondfide letter "(c). 
 
 {a) Gilpin, t. Fowler, 9 I!scli. 627: (6) James v. Boston, 2 C. & K. 8. 
 
 23 livn J„ Excb. 152, ' (c) ToM v, ffapJfins, 2 M. & Rpb, ?1. 
 
SECT. 1.] PRIVILEGED COMMUNICATIONS. 785 
 
 Privileged confidential communications "between friends to prevent 
 an injury. — If a confidential communication is honestly made 
 between friends, purely to prevent an injury, and not for the 
 purpose of slandering, the occasion justifies the act, and the 
 communication is privileged (d). But no moral duty will justify 
 the repetition and communication in writing of all the idle gossip 
 a man hears to the prejudice of his neighbour. If a person is, 
 under certain circumstances, under the pressure of a moral obliga- 
 tion to disclose the truth, he is, under all circumstances, under the 
 pressure of a moral obligation to abstain from circulating and 
 propagating falsehoods. No person, therefore, ought to hazard 
 statements or assertions in writing injurious to the character of 
 another, until he has by inquiry, where the means of inquiry exist, 
 satisfied himself that they are founded in truth. The benefit to one 
 man by the disclosure of the information, supposing it to be true, is 
 counterbalanced by the injury done to another if it should turn out 
 to be false. 
 
 "Where the defendant had received a letter from his friend, the 
 mate of a ship, containing a long narrative of dangers v'^hich the 
 mate had incurred from the drunkenness of the captain, and asking 
 for the defendant's advice, and the defendant, honestly believing 
 in the truth of his friend's statement, handed the letter to the 
 shipowner, who dismissed the captain, and the latter sued the 
 defendant for damages, the court were equally divided in opinion 
 as to whether the communication was privileged or not ; Tindal, 
 C.J., and Erie, J., being of opinion that the occasion and circum- 
 stances under which the communication took place, and the purity 
 of motive of the defendant in making it, rendered it a privileged 
 and protected communication ; while CressweU, J., and Coltman, J., 
 were of a contrary opinion. "It was not contended," observes 
 CressweU, J., " that any legal duty bound the defendant to com- 
 municate to the shipowner the contents of the letter he had 
 received, nor was the communication made in the conduct of his 
 own affairs, nor was his interest concerned. The authority for the 
 publication, if any, must therefore be derived from some moral 
 duty, public or. private, which it was incumbent upon him to dis- 
 charge. I think it impossible to say that the defendant was called 
 upon by any public duty to make the communication ; neither his 
 own situation, nor that of any of the parties concerned, nor the 
 interests at stake, were such as affect the public weal. Was there 
 any private duty ? There was no relation of principal and agent 
 between the shipowner and the defendant ; nor was any trust or 
 confideuce reposed by the former in the ' latter ; there was ^q 
 
 (rf) Holroyd, J,, Fmnmn t, Jvet, 5 B, & AJdi §45. 
 
786 LIBEL AND SLANDEK. [CPAP, XVII. 
 
 relationship or intimacy between them ; no inquiries had been 
 made ; they were, until the time in question, strangers ; and the 
 duty, if it existed at all, as between them, must, therefore, have 
 arisen from the mere circumstance of their being fellow-subjects of 
 the realm. But the same relation existed between the plaintiff and 
 the defendant. If the iDrdperty of the shipowner on the one hand 
 was at stake, the character of the captain was at stake on the 
 other ; and I cannot but think that the moral duty, not to publish 
 defamatory matter which he did not know to be true, was quite as 
 strong as the duty to communicate to the shipowner that which he 
 believed to be true" (e). Here, however, the defendant had no 
 means of ascertaining the truth or falsehood of the information, 
 and the. responsibility of acting upon it, without due inquiry, 
 ought to rest with the shipowner. And, if the defendant had been 
 possessed of any personal interest in the subject-mattpr to which 
 the letter related ; if he had been a part owner of the ship, or an 
 underwriter on the ship, or had any property on board, the com- 
 munication of the letter to the shipowner would have fallen clearly 
 within the rule relating to excusable publications ; and so, if the 
 danger disclosed by the letter either to the ship or the cargo, or the 
 (ship's company, had been so immediate as that the disclosure to 
 the shipowner was necessary to avert such danger, then, upon the 
 ground of social duty, by which every man is bound to his neigh- 
 bour, the defendant would have been not only justified in making, 
 but would have been bound to make, the disclosure (/). 
 
 Privileged communications ly persons having a pecu7iiary interest 
 involved in the matter of the communication. — ^A communication 
 made by a person immediately concerned in interest in the subject- 
 matter to which it relates for the purpose of protecting his own 
 interest, in the full belief that the communication is true, and 
 without any malicious motive, is a privileged communication, and 
 protected from liability in an action for Hbel. "Where a letter was 
 written confidentially to certain bankers, conveying charges injurious 
 to the professional character of a solicitor in the management of 
 certain concerns which they had intrusted to him, and it appeared 
 that the writer of the letter was himself interested in the affairs 
 which he supposed to be mismanaged, and wrote the letter lona 
 fide under the impression that his statements were well founded, 
 it was held that the communication was privileged. " If a com- 
 munication of this sort," observes Lord EUenborough, " which was 
 not meant to go beyond those immediately interested in it^ were 
 
 (e) Cresswell, J., Ooxhead v. Richa/rds, 2 C. B. 596. Wilson v. SoUnson 7 Q B. 
 
 ^J<;^- ■^°^,- ^e^^tty. Deacon, ih. 633. 68. Willes, J., Amann v. JJamm, 8 
 
 BeU V. Pm-Jce, 10 Ir. C. L. R. 284. C. B., N. S. 602 
 
 (/) Tindal, C. J., Coxhec(d\. Rkhwis, 
 
SECT. 1.] EECKLESS AND UNFOUNDED ASSERTIONS. 787 
 
 the subject of an aotion for damages, it would be impossible for the 
 affairs of mankind to be conducted " {g). 
 
 Among the various communications which have been held tq 
 be protected, in consideration of the private interest of the person 
 making them, may be enumerated notices of the commission of an 
 act of bankruptcy by the plaintiff, given by a creditor 'Wtose 
 pecuniary interests required the information to be given (^), and 
 communications respecting the character of servants {fo^t, p. 788), 
 
 Reohle^ and inconsiderate communications. — But it is not suf-r 
 iicient in every case of a confidential communication made by a 
 person having an interest in the subject-matter thereof, to show 
 that it was made hond fide and without malice. A man has no 
 right, as we have seen, to make himself the medium of propagating 
 scandalous and defamatory accusations, unless he himself honestly 
 believes them to be true, and his belief is not an honest belief, if it 
 is formed in a reckless and inconsiderate manner. If he has the 
 means by inquiry of ascertaining whether the charge is true or 
 false, and neglects to make inquiry, and exercises no effort to arrive 
 at the truth, his belief can hardly be said to be an honest belief; 
 for whoever publishes and circulates in writing opinions and gtater 
 ments unfavourable to another, ought to be prepared to show that 
 he had some reasonable ground for it. There is a wide distinction 
 between reckless assertions made by a man who assumes to have a 
 knowledge of the facts he comiminicates, and honest cemmunir 
 cations made with a view to inquiry and information by a person 
 interested in knowing the truth (i). If a question is asked 
 concerning the character of another, the person interrogated is not 
 justified in giving a damaging answer, unless he has some fair and 
 reasonable foundation for it. 
 
 Disclosures made hond fide in the course of an investigation set on 
 foot hy the plaintiff himself are also privileged and protected. If, 
 therefore, the plaintiff, or another person at the pls-intiff's request, 
 writes to the defendant asking for information on some point 
 affecting the plaintiff's character, and the defendant merely relates 
 hond fide what he has heard, the communication is privileged (k). 
 Where the defendant, having given notice of dismissal to his 
 footman and cook, they separately went to him and asked his 
 reason for discharging them, when he told each, in the absence of 
 the other, that (he or she) was discharged because both h9,4 been 
 robbing him ; whereupoii each brought an action fqj? the words §o 
 spoken to the other, it was held that the statement was privileged (^. 
 
 to) M'J>ougall V. Olariage, 1 Can>pb. ^^ ^o^^^- n-^,. ^' ^- 31«- 
 
 (i) BlaohMm y. Pugh, 2 C. B. 611. (?) Manby v. WiU, 18 0. B. Hi. 
 
 H) James v. Boston, 2 Oar. & K. 7. 
 
 ^ ' B B E 2 
 
788 LIBEL AND SLANDEK. [CHAP. XVII. 
 
 Answers to inquiries, therefore, made by persons interested in 
 maMng.:the inquiry are privileged, if they are given lond fide m. 
 the discharge of any legal, moral, or social duty, as where the writer 
 is, by his situation, bound to protect the interests of the inquirer, 
 and they are believed to be trae by the parties who give them. 
 Thus, the answer to an inquiry addressed by a landlord to his 
 tenant, respecting the character of a person proposing to be 
 appointed game-keeper, or -to take a farm, is privileged, by the 
 occasion, if made hand fide (m). But if a person is supposed to 
 have libelled or slandered another, and the party aggrieved asks 
 him if he has done so, and he replies that he has, and repeats it, 
 such a communication is not privileged {n) ; and per Wightman, J., 
 " If the reports had originated elsewhere than with the defendant, 
 and he had been merely called upon for information, and had given 
 it, the case would have been different." 
 
 Communications between subscribers to charities. — ^Words spoken 
 by one subscriber to a charity in answer to inquiries by another 
 subscriber, respecting the conduct of a medical man employed by 
 the charity, in his attendance upon the objects of the charity, are 
 not, merely on account of those circumstances, a privileged com- 
 munication. " There may be a thousand subscribers to a charity," 
 observes Lord Denman. " Such a claim of privilege is too large" (o). 
 
 Privileged comnminications respecting the character of servants. — 
 One of the most ordinary and common instances of the application 
 in practice of the privilege of protection to confidential communi- 
 cations of a criminatory character, is that of a former master 
 giving the character of a discharged servant, which, if given with 
 honesty of purpose to a person who has any interest in the inquiry, 
 is a privileged communication, although made in the presence and 
 hearing of a stranger {p). Even though the statement be untrue in 
 fact, the master will be held justified by the occasion in making 
 the statement, unless it can be shown to have proceeded from a 
 malicious mind. Malice may be established by various proofs : 
 one may be that the statement is false to the knowledge of the 
 person making it, and if there is any evidence of wilful untruth in 
 the statements as to character, there is evidence of malice to be 
 submitted to a jury. Generally speaking, anything said or written 
 by a master when he gives the character of a servant is a privileged 
 communication, if made bond fide in answer to inquiries that have 
 been addressed to him. It is not essential that the person TnaV^ng 
 the communication should be put into action in consequence of a 
 
 (m) Coeka/jfMY.HodgUMon, 5 0. & P, (p) Toogood v. Spynng, 1 C. M. & E. 
 
 '%) GHfitU .. Le^. 7 Q. B. 64. noi ''"'"^''''^ "' ^'^*'' ^ ^' «' 
 
 (o) Martin Y, ^Prong, 5 Ad. & E, 538, 
 
SECT. 1.] GIVING CHAKACTER OF SERVANTS. 789 
 
 third party's putting questions to him. He may, when he thinks 
 that another is about to take into his service one whom he knows 
 ought not to be taken, set himself in motion to induce that other 
 to seek information and put questions to him. The answers to such 
 questions given bond fide, with the intention of communicating 
 such facts as the other party ought to know, wOl, although they 
 contain slanderous matter, come within the scope of a privileged 
 communication. But in such a case it will be a question for the 
 juiy, whether the defendant has acted lovdfide, intending honestly 
 to discharge a duty, or whether he has acted maliciously, intending 
 to do an injury to the servant. When he volunteers to give the 
 character, stronger evidence that he acted londfide will be required 
 than in the case where he has given the character after being 
 requested so to do {q). 
 
 Jf the employer has received credible information of the mis- 
 conduct of a servant after the latter has left his situation, it is his 
 duty to disclose the fact in answer to inquiries as to character, in 
 order that a proper investigation may be made by the persons 
 interested in knowing the truth (r). If a- good character is given 
 to a servant, and then circumstances are discovered which show 
 that the character was not deserved, it is the duty of the person 
 who has given the good character to communicate the discovery to 
 the person to whom such character has been given, and the com- 
 munication, if made loTiAfide, is privileged and protected (s). But 
 if it appear from the terms and language of the communication 
 and the surrounding circumstances of the case that there was any 
 malicious or spiteful feeling actuating the master when making the 
 communication, then it is not protected. If, therefore, it be proved 
 that the bad character given of the servant is false, and that the 
 master knew it at the time he gave it, there is evidence of express 
 malice, and the privilege is annihilated. If the master characterises 
 his servant as a " bad-tempered, lazy, impertinent fellow," and the 
 servant brings forward persons with whom he has previously lived 
 who give him a good character, and contradict the allegation of his 
 bad temper, laziness, and impertinence, it is incumbent on the 
 master to give some general evidence, showing that he had, a 
 reasonable ground for using the language he did use, and that the 
 statement was not totally unfounded and wholly devoid of truth. 
 If he fails to give some general evidence of this sort, the charge 
 agamst the servant will be considered reckless and unfounded, and 
 there will be evidence of malice for a jury (;!). 
 
 (a) Pattison x. Jones, 8 B. & 0. 678. (s) Gardmer v. Slade, 13 Q. B. 801. 
 
 Bee Fryer y. Kinnersly, 33 Law J., C. P. (t) Rogers v. Clifton, 3 B. & P. 591, 
 
 97 .Ace. iu the case of a governess, Fountain 
 
 (r) ChUd V. AffiecJc, 9 B. & 0, 403. v. Boodle, 3 Q. B. 11, 
 
790 LIBEL AND SLANDER. [CHAP. XVIL 
 
 Where a libel imputed to the plaintiff incompetency and 
 Tinskilfuiness in a particular transaction in which the plaintiff had 
 been employed by the defendant, it was held that it was not 
 competent to the plaintiff to give evidence of- general competency 
 and skilfulness, without meeting the specific instance relied upon 
 by the defendant (u). 
 
 Where the plaintiff, being secret-ary of an association called 
 the Brewers' Company, was 'dismissed for alleged tnisconduct, 
 and the defendant, who was a director of the company, and also 
 a director of another company, called the London Necropolis 
 Company, of which the plaintiff was auditor, called the attention 
 of the directors of the last-named company to the plaintiff's 
 misconduct and dismissal from the secretaryship of the other 
 company, alleging that he had been charged with obtaining money 
 from the solicitors of the company by false pretences, and taking 
 up a bill of his own with it, it was held that the defendant might 
 properly, in his character of director of the Necropolis Company, 
 make the communication he did, although it charged the plaintiff 
 with the actual commission of the offence imputed to him, or 
 amounted to an assertion on the defendant's part that he believed 
 the charges to be true ; for it was both his duty and interest to 
 make the communication ; and it was held that, in order to render 
 the defendant liable in damages, actual malice must be shown, 
 in the shape of proof that the defendant was not actuated by 
 a justifiable motive, but by some evil intention towards the 
 plaintiff (x). 
 
 Comments in excess of- the privilege. — " The proper meaning of 
 a privileged communication," observes Parke, B., "is only this, 
 that the occasion on which the ' communication was made rebuts 
 the inference of malice, primd facie arising from a statement 
 prejudicial to the character of the plaintiff, and puts it on him to 
 prove that there was malice in fact, i.e., that the defendant was 
 actuated by motives of personal spite or ill-will, independent of 
 the occasion on which the communication was made " (y). This 
 may be established by the language of the communication itself, 
 by showing that it was made in virulent and abusive terms, and 
 that the words used, were , stronger than the occasion justified (2). 
 When the communication is in writing, the jury are entitled* to 
 look at and read the writing, in order to judge of its true character. 
 
 " Any one, in the transaction of business with another, has a 
 
 M Aw V. Bm^ate, 8 Exeh. 694. {y) WngU y. Woodgate, 2 Cr. M. &K. 
 
 («) ffarru y. Thompson, 13 0. B. 348. 677; 
 SeeLcmlaa t. Aiigh-EgypUm Co., mte, (z) Brown v. Grooms, 2 Stark. 297. 
 
 P- '*"■ Qodi(M V. Hone, 1 B. & B. 1. BUgg t. 
 
 Stwrt, cmie, p. 782. 
 
SECT. 1.] EEPOETS OF TEIALS, ETC. 791 
 
 riglit to use language, hand fide,, which is relevant to that business, 
 and which a due regard to his own interest makes necessary, even 
 if it should directly, or by its consequences, be injurious or painful 
 to another ; but he has no right to make defamatory comments on 
 the motives or conduct of the party with whom he is dealing." 
 Where, therefore, the defendant claimed a sum of money from the 
 plaintiff, and the plaintiff's clerk wrote, by direction of the plaintiff, 
 to the defendant, telling him that the plaintiff denied his liability, 
 whereupon the defendant wrote to the .clerk, alleging facts in 
 support of his claim, and added, " this attempt to defraud me is as 
 mean as it is dishonest," it was held that the comment was not 
 privileged, and was libellous and actionable (a). 
 
 Of the effect of addressing privileged communications to a wrong 
 party by mistake. — It does not appear to have been expressly 
 decided, whether an honest mistake, made in sending a privileged 
 communication to the wrong person, destroys the privilege, and 
 subjects the party making the communication to an action ; or how 
 it would be. if a gentleman, asked by letter for the character of 
 a servant, should, bond fide, write an answer, stating acts of 
 dishonesty and immorality committed by the servant, and, by 
 mistake, address the letter to another person, different from the 
 inquirer, although of the same name (6). 
 
 Reports of trials containing defamatory matter. — " Newspapers 
 and other publications," observes Tindal, C. J., "which narrate 
 what passes in courts of justice, are, to a certain extent, privileged, 
 No one can read their accounts of judicial proceedings without 
 being sensible that, on several occasions, they do, to a certain 
 extent, serve the cause of public justice. They ought therefore to 
 be privileged, but their privilege must be restrained to occasions in 
 which they publish fairly what passes in court. Everybody knows 
 that the statement of counsel is ex parte, and that he is often 
 instructed to make allegations which it is afterwards impossible to 
 support in proof. If, therefore, after a cause has been tried, a 
 defamatory statement by counsel, which the evidence has not at aU 
 supported, is published in a newspaper, the publication is not 
 privileged, because it is not a fair account of what passed in 
 court" (c). The cases in which reports of legal proceedings, 
 whether ex parte or not, have been held to b6 libellous and 
 actionable are, where the account published has been false or 
 highly coloured, or where the reporter has added comments, 
 allegations, and opinions of his own, reflecting upon the character 
 
 (a) Tuson T. Evans, 32 Ad. & E. 733. J., C. P. 215. Beauclwnvps (Ld.) r. Croft, 
 
 (b) Harrison t. Bush, 5 Ell. & Bl. 350. Dyer, 285a. Curry v. Walter, 1 B. & P. 
 
 (c) Saunders t. MiUs, 6 Bing. 218. 525. Lewis v. WtMer, 4 B. & Aid. 614. 
 Eoare t. SHverloch, 9 C. B. 20 ; 19 Law , 
 
792 LIBEL AND SLANDER. [CHAP. XVII. 
 
 or conduct of others (c^), or where the matters given in evidence 
 and published are of a grossly scandalous, blasphemous, or immoral 
 character (e). 
 
 Publications of ex parte statements and, of proceedings preliminary 
 to a trial. — " We are not prepared," observes Lord Campbell, " to lay 
 down for law, that the publication of preliminary inq[uiries before 
 magistrates is universally lawful, nor that the publication of such 
 inquiries is universally unlawful. One of the resolutions of this 
 court, in Duncan v. Thwaites (f), lays down the doctrine that the 
 report of a preliminary examination before a magistrate is unlaw- 
 ful, where the party accused has been committed or held to bail for 
 an indictable offence ; there the actual pendency of a prosecution 
 was a main ingredient in the decision : but where the party accused 
 has neither been committed nor held to bail, but absolved by the 
 magistrate, we think we are at liberty to hold that an impartial and 
 correct report of the proceedings is lawful. In the cases relied 
 upon to establish the general doctrine that reports of preliminary 
 proceedings before magistrates are not lawful, it will be seen that 
 there were either vituperative comments accompanying the state- 
 ment of the evidence, or some aggravation attending the publication 
 of the report, or some peril which was likely to be caused to the 
 person complaining of it" (g). 
 
 The privilege is not confined to the publication of the proceed- 
 ings of the superior courts. The dignity of the court cannot be 
 regarded, and " no distinction can be made for this purpose between 
 a court oipie poudre and the House of Lords." 
 
 A magistrate, upon any preliminary iuquiry respecting an indict- 
 able offence, may, if he thinks fit, carry on the inquiry in private, 
 and the publication of any such proceedings before Tiitti would 
 undoubtedly be unlawful ; but while he continues to sit foribus 
 apertis, admitting into the room where he sits as many of the 
 public as can be conveniently accommodated, and thinking that 
 this course is best calculated for the investigation of truth and the 
 satisfactory administration of justice (as in most cases it certainly 
 will be), the court in which he sits is to be considered a public 
 court of justice, provided the magistrate has jurisdiction over the 
 matters brought before him, and authority' to inquire into them. 
 But " if magistrates publicly hear slanderous complaints respecting 
 matters over which they have ■ no jurisdiction, a report of what 
 passes before them is as little privileged as if they were illiterate 
 mechanics assembled in an ale-house " (A). 
 
 (d) StUes V. NoJcea, 7 East, 492. Zema (g) Ld. Oamrf)ell, C. J., in LewU t. 
 
 T. Clement, 3 B. & Aid. 710. Andrews y. Levy, EU. Bl. ^ Ell. 557 : 27 Law J., 
 
 Ch%pman, 3 C. & K. 288. Q. B. 289. 
 
 (c) Rex T. Garlile, 3 B. & Aid. 160, (A) 27 Lair, J., Q. B. 288. M'GregorV, 
 
 ( /) 3 B, & 0. 556. Thwaites, 3 B, & C. 24. 
 
-SECT. 1.] PUBLICATION OF SPEECHES, ETC. 793 
 
 Publication of speeches and proceedings in F&rliament. — Infor- 
 mation printed merely for the use of members of. Parliament and 
 circulated amongst them is privileged ; hut writings containing 
 defamatory matter, though printed for the use of members, cannot 
 lawfully be circulated amongst those who are not members of 
 Parliament (i). However, the 3 & 4 Vict. c. 9, enact s, that a 
 defendant in any civU or criminal proceeding brought for the publi- 
 cation of any report, paper, vote, or proceeding published under the 
 authority of either House of Parliament, may, on the production of 
 a certificate from the speaker of either House, duly verified, stating 
 that such report, paper, &c., was published by the authority of the 
 House, apply to the court, or judge of the court, in which the pro- 
 ceedings are pending, and have them stayed. By the 2nd section 
 it is provided, that any suit or criminal proceeding for the publica- 
 tion of a copy of such authorized report, paper, &c., may be stayed 
 on the production of the original report, paper, &c., and of an affi- 
 davit verifying the correctness of the copy. And by the 3rd section 
 it is enacted that in any civU or criminal proceeding for the publi- 
 cation of any extract or abstract of such report, paper, &c., the 
 defendant may give evidence under the general issue that the extract 
 or abstract was published londfide and without malice, and,, on the 
 jury being satisfied of that, shall be entitled to a verdict. 
 
 A member of Parliament may make what reflections he pleases 
 upon the character of others from his place in the House of Com- 
 mons, but if he prints and publishes his speeches (except, perhaps, 
 lonob fid^e for the information of his constituents {k) ), he will be 
 responsible in damages if they are of a libellous character (J). 
 However, a faithful report by a public newspaper of an entire 
 debate in either House of Parliament, containing matter disparaging 
 to the character of an individual, as having been spoken in the 
 course of the debate, is not actionable at the suit of the party whose 
 character is thus called in question ; but the publication is privi- 
 leged on the same principle as an accurate report of proceedings in 
 a court of justice is privileged, viz., that the advantage of publicity 
 to the community at large outweighs any private injury resulting 
 to the individual from the publication (m). 
 
 Defamatory reports of proceedings at pMic meetings, vestry meei- 
 %s, c&c— The principle which protects newspaper proprietors and 
 others, who publish a fair and correct statement of what takes place 
 in courts of justibe, does not extend to protect the publication of 
 reports, speeches, and proceedings at vestries and public meetings, 
 
 Bex y. Ld. Abingdon, 1 Esp. 226; cited 
 26 Law J., Q. B. 107 ; 7 BU. & Bl. 233. 
 O b' 9r " """ ' W Waaon t. Walter, L. B., 4 Q. B. 
 
 \l) B^ V. Creerey, 1 M. & S. 280, .73. 
 
 (i) Stochdale v. Hansard, 9 Ad. & B. 1. Be. 
 (k) See Wason r. Wcdter, L. E., i 26 
 
 W 
 
794 LIBEL AND SLANDER. [OHAP. XVIL 
 
 or meetings of commissioners appointed to be holdenby statute for 
 public purposes. "At such meetings," observes Lord Campbell, 
 " things may be said very relevant to the subject in hand, but very 
 calumnious ; and in what an unhappy situation the calumniated 
 person would be, if the calumny might be published, and yet he 
 could not bring an action and challenge the printer and publisher 
 of the libel to prove its truth (n). 
 
 JRmiews and criticisms in public papers. — " Every man," observes 
 Lord EUenborough, " who publishes a book, commits himself to 
 the judgment of the public, and any one may comment upon his 
 performance. If the commentator does not step aside from the 
 work, or introduce fiction for the purpose of condemnation, he 
 exercises a fair and legitimate right ; but if he foUows the author 
 into domestic life for the purpose of slander, that wiU be libellous. 
 Authors are liable to criticism, to exposure, and even to ridicule, if 
 their copipositions are ridiculous, otherwise the first who writes a 
 book upon any subject will m9,intain a monopoly of sentiment and 
 of opinion respecting it, which would tend to the peipetuity of erjror." 
 " The critic does a great service to the public who writes down any 
 vapid or useless -publication, such as ought never to have appeared. 
 He checks the dissemination of bad taste, and prevents people from 
 wasting both their time and their money upon trash. I speak of 
 fair 'and candid criticism, and this every one has a right to publish, 
 although the author may suffer a loss from it. Such a loss the law 
 does not consider an injury, because it is a loss which the party 
 ought to sustain. It is the loss of fame and profit to which he was 
 never entitled " (o). 
 
 "The editor of a public newspaper," observes Lord Kenyon, 
 " may fairly and candidly comment on any place or species of public 
 entertainment, but it must be done without malice or view to injure 
 or prejudice the proprietor in the eyes of the public. If fairly done, 
 however severe the censure, the justice of it screens the editor from 
 legal animadversion ; but if it can be proved that the comment is 
 malevolent, and exceed the bounds of fair opinion,, then it is a libel 
 and actionable " (p). And the same rule applies to an article in 
 a newspaper upon a debate in either House of Pa,rliament upon a 
 subject of public interest. It must be honest, and fair, i.e., the 
 writer must believe it to be true or just, and it must be made with 
 a reasonable degree of judgment and moderation (q). 
 
 Criticisms ly one public journalist upon another. — It is com- 
 petent to one public writer to criticise another and ridicule his 
 
 (n), Davison v.. Dimccm, 1 Ell. & Bl. (o) Cwn v. ffood, cited in Tabart t. 
 
 231; 26 Law J., Q. B. 106 ; 7 H. & N. Tipper, 1 Campb. 357. 
 
 89. Mophma v. Pichhwrn, 31 Law J., {p) Dihdin v. Swan, 1 Esp. 26. 
 
 Exch. 133. See Coxy. Feeney, 4 E. & F. (g). Wuson v. Walter, wnte, p. 793. 
 
SECT. 1.] CRITICISMS ON SERMONS, CLERGYMEN, ETC. 795 
 
 sentiments and opinions, but he is not justified in making- 
 calumnious remarks on the private character of the individual, 
 or in imputing to him sordid and dishonest motives, or base and 
 dishonourable conduct. In that respect, the editor of a newspaper 
 enjoys a right of protection in common with every other subject (r). 
 A paragraph in one newspaper charging another with being a 
 vulgar, ignorant, and scurrilous journal, is not actionable ; but it is 
 otherwise if it asserts that it is in low circulation, and calls the 
 attention of advertisers to the fact, as the plain object of it is to 
 damage the sale of the paper, and diminish the profits from adver- 
 tising (s). 
 
 Works of art are as much the subjects of criticism as the 
 writings of an author. "Any man has a right," observes Lord 
 Tenterden, " to express his opinion of them ; and however mis- 
 taken, in point of taste, that opinion may be, or however unfavour- 
 able to the merits of the author or artist, the person entertaining it 
 is not precluded by law from its fair, reasonable, and temperate 
 expression, although through the medium of ridicule. If it is unfair 
 and intemperate, and written for the purpose of injuring the artist 
 in his profession, it is actionable " (t). 
 
 Criticisms upon handbills and advertisements. — If a man circu- 
 lates a printed handbill, or posts it up in a public thoroughfare, or 
 advertises in the public papers, the handbill, or the advertisement, 
 is as much open to fair and candid comment and criticism as any 
 published book or pamphlet. But those who criticise it must not 
 go out of their way to impute motives, and make reflections upon 
 private character not fairly warranted by the terms and tendency 
 of the writing or advertisement (u). 
 
 Criticisms upon sermons and clergymen. — The law permits com- 
 ments to be made upon the sermons delivered by clergymen from 
 their pulpits, provided the comments are fairly, justly, and truly 
 made. A clergyman also may be fairly characterised as a remark- 
 ably bad preacher, or as a preacher of erroneous doctrines, and if the 
 parson sustains an injury from the criticism, it is an injury for which 
 there is no redress at law by damages. But the preaching^ of a 
 sermon in the ordinary mode of a clergyman's duty in the parish 
 church does not make the sermon public property, so as to invite 
 observation upon it, and authorize the same freedom of criticism and 
 comment from the press in general, as is extended to the publication 
 of a literary work («). And all reflections upon the private characr 
 ter or conduct of the clergyman, calculated to bring him into 
 
 (r) Ld. EUenborough, Siua/rtr. Lovett, (u) Paris v. levy, 30 Law J., C. P. 
 
 2 Stark. 97. Caw^beU v. Spottiswoode, 11. if- ,7 -ik tit » vit- 
 
 g2 Law JOB 185 - W Gathercoh v. M^lM, 16 M. & w. 
 
 \(s) Heriot v. Stuart, 1 Esp. 436. 344. Heww T. StmeU, 12 Ad. & E. 
 
 \t) Soane t. Knight, M. & M. 74. 719. 
 
796 LIBEL AND SLANDER. [CHAP. XVII. 
 
 disrepute with his parishioners, are libellous aad actionaUe. How- 
 ever, what he does in the vestry-room, and allows to be done in the 
 church during Divine service, is a matter of public interest, and 
 therefore any comments upon it, unless stronger language is used 
 than the occasion justifies (which is a question for the jury), are not 
 actionable {y). 
 
 Comments upon the public character of public men. — There is a 
 wide difference between publications relating to public and private 
 individuals. Every person has a right to comment upon those acts 
 of public men which concel-n him as a subject of the realm, if 
 he do not make his commentary a vehicle for malice and the 
 indulgence of some private spite or pique. "You have a right to 
 comment on the public acts of a minister, upon the public acts of a 
 general, upon the public judgments of a judge, upon the public 
 skill of an actor, but you have no right to impute to them such 
 conduct as disgraces and dishonours them in private life " (2). 
 
 Disparaging criticisms by one tradesman upon the goods of a rival 
 tradesman are not actionable, unless it be proved that they have 
 been maliciously and fraudulently made, and were false to the 
 knowledge of the party at the' time they were made. Thus, where 
 a mineral oil merchant got a chymist to test the quality of a 
 mineral oil he had imported, and to compare it with the oil sold by 
 a rival oil-merchant, and then printed and circulated the chymist's 
 report, which spoke disparagingly of the plaintiff's oil in comparison 
 with the oil of the defendant, it was held that this report was no 
 libel upon the plaintiff if it was the result of a lond fide examina- 
 tion and comparison of the two oils, and contained nothing that 
 was false to the knowledge of the defendant. at the time he pub- 
 lished and circulated it {a). JBut where a gunsmith published an • 
 advertisement in a newspaper of his being the inventor of a short 
 gun which shot as far as other longer guns, and another. gunsmith 
 inserted a counter advertisement cautioning persons against, these 
 guns, and stating that the inventor durst not engage with any 
 artist in town, and had made no such experiment, &c., it was held 
 that this was a libel, for though any one in the trade might 
 contradict the fact asserted respecting the short gun, no one had 
 a right to indulge in any general reflections upon the character of 
 the inventor and his conduct of his business ; that the advice to 
 all persons to be cautious was a reflection on the inventor's honesty 
 as leading people to suppose that he would deceive them, and the 
 allegation that, he would not engage with any other artist was 
 setting him below the rest of his trade (6). 
 
 (y) KMy y. Timling, L. B., 1 Q. B. (o) Taung r. Macrae, 32 Law J., 
 
 699. ■ ' Q. B. 6. 
 
 {») ParmiterY. CovfiUtnUiS M. & W. (b) Harmm v. DeJaneu, 1 Barnard. 
 
 108. 289; 2 9tr. 898. 
 
SECT. 2.] OEAL SLANDEE. 797 
 
 SECTION II. 
 
 OF VERBAL SLANDEE. 
 
 When defamatory words are actionable. — The old cases respecting 
 the- liability of persons for the utterance of verbal slander are of 
 the most unsatisfactory and contradictory character. " They are," 
 observes Pratt, C. J., " very odd cases " (c). At one period the 
 courts seem to have regarded actions for slander, by word of mouth, 
 with great disfavour, and to have done all they could to discourage 
 them; at another time they favoured the action, because men's 
 tongues were growing more and more virulent and dangerous, and 
 people were apt to take the law into their own hands, and revenge 
 themselves on the slanderer if they failed to obtain redress in a 
 court of justice {d). In some cases we find judges complaining of 
 the growth of actions for verbal slander, saying that they would 
 spoil all communications between man and man, and repress all 
 expression of opinion, so that one would be afraid to speak 
 disparagingly of the accommodation afforded by a particular inn, 
 or of the wine sold therein, or of the surveys furnished by a 
 particular surveyor (e). At another period we find judges lament- 
 ing the frequency of scandals and the licence given to the tongue 
 of the slanderer, and expressing their surprise that cases are to be 
 foimd in the books in which a clergyman failed- to obtain com- 
 pensation in damages for an imputation of adultery (/), and that a 
 schoolmistress had been declared incompetent to maintain an action 
 for verbal charges of prostitution (g). 
 
 "The opinions of later times," observes Holt, C. J., "have been 
 in many instances different from those of former days in relation to 
 actions for words, and judgments have gone different ways ; ... but 
 for my part, wherever words tend to take away a man's reputation, 
 I will encourage such actions, because so doing will contribute 
 much to the preservation of the peace " QC). 
 
 Defamatory words not adionahU without special damage. — ^As the 
 law at present stands, mere vituperation and abuse by word of 
 mouth, however gross, is not actionable, unless it is spoken of a 
 professional man or tradesman in the conduct of his profession or 
 business. Thus, to call a man a scoundrel, or blackguard, or a 
 
 le) Mtton T. ffeyward, 8 Mod. 24. (g) Per Twisden, J., Wharton t. £rooh, 
 
 (d) Harmony. Thornborough, lOMod, 1 Ventr. 2X. WUby /r. Ehton, 8 C. B. 
 198 142. Ld. Deuman, C. J., 4yr«T. Crown, 
 
 (e) King v. Lake, 2 Ventr. 28. CrofU 2 Ad. & E, 7. 
 Brown. Z Bulstr. 167. (K) Bakery. Pierce, 6 Mod, g4. For 
 
 '(/) Pamir, Ga/rpmter, Cxo,W*.i02i tescug, J„ ^wttojt t, ffe^w(^d^ § Mod. 
 Noy, 64, 24, 
 
798 ORAL SLANDEE, [CHAP. XVII. 
 
 swindler, or a rogue, or to say of a man, "Yoa are a fellow, a 
 disgrace to the town, and unfit for decent society, on account of 
 your conduct witli whores," is not actionable {%). Neither is it 
 actionable to call a man a blackleg, unless it be shown that by the 
 use of the term the defendant intended to impute to the plaintiff 
 that he is a cheating gambler (A) ; nor to say of a young lady that 
 she is a notorious liar, an infamous wretch, and hg,s been all but 
 seduced by a notorious libertine (l). Words imputing to a l^dy 
 that she gets her living by imposture and prostitution, and that she 
 is a swindler, are not actionable, without special damage (m) ; nor 
 the words, " He is a rogue, and has robbed and cheated his brother- 
 in-law of upwards of 2000Z." {%). 
 
 Defamatory words actionable per se without proof of any special 
 damage. — But words imputing an indictable offence are actionable 
 per se without proof of any special damage, as they render the 
 accused person liable to the pains and penalties of the criminal 
 law. Such are words imputing felony, bigamy (o), forgery, the 
 receipt of stolen goods, knowing them to be stolen (p) ; the careless 
 or unskUful administration, of mercury, or any other poisonous or 
 dangerous drug, and thereby causing death (q) ; the keeping of a 
 bawdy-house (r), or the doing of any other criminal or indictable 
 offence. But words conveying only a vague sort of suspicion in 
 the inind of the speaker (s), uttered hond fide with a view of 
 obtaining information, or by way of warning, or spoken in grief and 
 sorrow for the news (t) will not create any cause of action, as the 
 circumstances rebut the presumption of malice ; nor any words of 
 mere suspicion or opinion, which do not convey any positive 
 imputation of guilt (u) ; but if a man says of another, '" I am 
 thoroughly convinced you are guilty of stealing, &c., &c.," this is 
 equivalent to a positive averment of the fact (x). 
 
 In what cases actionable words are rendered not actionable by 
 precedent or subsequent words. — Simply to call a man "thief" is 
 primd facie actionable, as it imputes felony, but if it appears that 
 the word was used as a mere term of abuse, and that there was in 
 point of fact no imputation of actual theft conveyed by it, there is 
 no cause of action. Thus, where the defendant said of the plaintiff 
 " he is a damned thief, and so was his father before him," but it 
 appeared that the words were uttered in the heat of anger during 
 
 (i) Immhy v. Allday, 1 Cr. & Jery. (p) Alfred v. FaHom, 8 Q. B. 864. 
 
 301. SoAsiU T. Ja/rdine, 2 H. Bl. 531. (q) Edsall v. RusseU, 5 So. N. E. 801. 
 
 (Vj Earnett t. AUen, 3 H. & K. 376; (r) Brayne v. Comer, 5 M. & W. 2pp. 
 
 27 Law J., Exch. 412. («) Tozer r. #pMi)-(«, 6 Exch. 5391 
 
 (l) lynch T. Knight, 9 H. of L. Ca. (<) Gramford t. Middleton, 1 Lev. 82. • 
 
 577. (if) Com. Dig. Action on the case for 
 
 (m) WOby v. Slston^ 8 C. B. 142. Defamation, P. 13. 
 
 (») ffopwood V. Thorr^, ib. 313. (x) Peajce y. OUham, Cowp. 275. 
 
 (o) Heming v. Power, 10 M. & W. 570. 
 
SECT. 2.] WHEN ACTIONABLE. 799 
 
 a conversation respecting the plaintiff's refusal to pay over some 
 money which he had received as executor, Lord EUenborough 
 directed a nonsuit, saying that it was manifest fi:om the whole 
 conversation that the words as used did not impute a felony (y). 
 The jury ought not to find for the plaintiff, if from the accompany- 
 ing words or the surrounding circumstances they believe that the 
 defendant did not intend to impute actual theft to the plaintiff (z). 
 
 Where the defendant said of the plaintiff, " thou art a thief, for 
 thou hast taken my beasts under an execution, and I will hang 
 thee," it was held that there was no actionable slander, for the 
 reason given for the plaintiff's being a thief, manifestly showed that 
 he was no thief at all, and that no the^t had been committed (a). 
 
 Defamatory words imputing to the plaintiff that he is afflicted with 
 a coiitagiovs disorder are actionable per se. Thus, to say seriously 
 and positively of a person that he has got the leprosy, or the pox, 
 is actionable, without proof of any special damage, because it causes 
 hiin to be shunned and avoided by society (&). The imputation 
 must refer to the time present, and not to the time past, for words 
 are not actionable which merely impute to the plaiutiff that at 
 some previous period he h9,d the disease (c). 
 
 Defamatory words concerning tradesmen and professional men, 
 spoken of them in the way of their trade or profession, will sustain 
 an action when such words would not be actionable when spoken 
 of a person having no trade or profession (d). Words imputing to 
 a tradesman fraudulent conduct in the transaction of business, such 
 as the use of false weights, are actionable per se, without proof of 
 special damage (e) ; and so are words imputing to a tradesman that 
 he is in the constant habit of cheating and defrauding his customers, 
 and those who deal with him (/), and words imputing bankruptcy 
 or insolvency to a person engfiged in trade, such as " if he does not, 
 come and make terms with me, I will make a bankrupt of him, and 
 ruin him" (g). And it is not necessary that the office or trade 
 should be one of which the court can take judicial notice, for it is 
 actionable, without special damage, to say of a gamekeeper that he 
 
 kills foxes (h). 
 
 But " if one tradesman wiU pretend to be a greater artist than 
 
 (v) Thompson v. Sernard, 1 Campb. (c) Cwrslaie v. Mapledoram, 2 T. K. 
 
 47. Cristie V. Oowell, 1 Peake, N. P. 475. n , n 
 
 Q g (d) Per. Cm-. Har'num v. Veumy, 2 
 
 \z) MaMfieia, C. J., PenfoU^. West- Str. 898. , - n t, «« 
 
 cote 2 B & P N. R. 335. («) Griffiths v. Lewis, 7 Q. B, 65. 
 
 (i) Wak-s case, 1 EpU. Abr. 51. Brit- (/) ^ve v. Holgate 2 Lev^ 62 
 
 fridge's case, 4 Eep. 19. Bac. Abr. {g) Brown y. Smith, U G. B. 599. LA 
 
 SlaSdeb K Denman, C. J., itoowjson. v. Marchant, 7 
 
 (b) Bi'aoduiorth Y. Gray, 7 iH. & Qi. Q-;B. 918 r r i, n •=. ,. 
 
 334 ■ 8 Sc. N.B. 9. Icmes v. MuUecJi,, 4 (h) Foulger v. Newcaml, L. R,, 2 Bxch. 
 
 Rep! 17b. ' ^2^- 
 
800 DEAL SLANDER, [CHAP. XVII. 
 
 others, it is lawful for them to support their pwn credit in the same 
 way ; " and, eonsequently, it is not actionable for one tradesman to 
 depreciate the wares and merchandise of another in comparison with 
 his own. So long as it is a mere puff by one of two rival tradesmen, 
 recommending his own articles in preference to those of another, it 
 is defensible on account of the interest the defendant has in the 
 matter ; but to say generally of a tradesman that he is in the habit 
 of selling goods which he knows to be bad, is actionable (i). 
 
 Words imputing miscondioct, or gross ignorance or incapacity, to 
 professional men, in the discharge of their professional duties, are 
 actionable per se, without proof of any special damage ; such as 
 words imputing to a practising physician that he is a quack or a 
 mountebank (Jc), or that he has kiUed a patient through ignorance 
 of the first principles of his profession (I) ; or words imputing to 
 a surgeon or accoucheur the want of a proper qualification for his 
 profession or business, or the want of skill, or of any professional 
 requisite, or that his character is so bad amongst' his professional 
 brethren that they wUl not meet him (m) ; or to say of a master 
 mariner in command of a vessel that he was frequently drunk, and 
 in that state had to be carried on board his vessel (n). But words 
 conveying an imputation against a medical man not necessarily 
 connected with his profession, such as a general imputation of 
 adultery, are not actionable (o) ; but if the statement be, that he. 
 has seduced or committed adultery with one of his patients, it would 
 be otherwise. 
 
 Words imputing to a barrister that he has wilfully and corruptly 
 deceived his client, and revealed the secrets of his cause, or that he 
 has given vexatious counsel, and seeks only to fiU his own pockets, 
 without regard to the interests of his clients, are actionable (p) ; 
 and so are words imputing to a practising attorney that he is 
 well known to be a corrupt man, and to deal corruptly in his 
 profession (q) ; or words imputing to him that he betrays the secrets 
 of his clients, or that he is ignorant of his profession, and is no 
 lawyer, and that fools only go to him for law, or that he is guilty of 
 mal-practice, or is a cheat, a rogue, or a knave in his profession (r). 
 But mere vituperative language or general abuse of a professional 
 man is not actionable, unless it has reference to his conduct in his 
 profession. Thus, to caU an attorney a cheating knave is not 
 
 (j) SvtmsY. Em-low, 5 Q. B. 633. See (o) Ayre v. Cravei}, 2 Ad. & E 2 
 
 ante V,7S6. , „ „ , ^ „ ^ (f ) §naff v. Gray, I EoU. Abr. 67. 
 
 (fc) Goddart v. ffaselfoot, 1 EoU. Abr, gmg_T^Lake^2^ Ven|r, 28. 
 
 ^*/K m .. ., . . „ , (a) .B»reA%'« eoie, i Sep. 16a, pi. 6. 
 
 (V) Tuttyy. Alemn, 11 Mo*. 221. (r) Banks v. Allen, 1 Eoll. Abr. U. 
 
 (m) Smthee v. Denny, 1 Esch. 196, Baker r. Morfue, 1 Sid, 327. Day t. 
 
 (n) Inmn v, BramJImQoA, 83 Law J., 2«ifcr, 8 Wlls, 59, •"' 
 
 Kscb, 857. ' ■"' * ■ • 
 
SECT. 2.] WHEN ACTIONABLE. 801 
 
 actionable, but to say that he cheats his clients is actionable (s). In 
 all actions founded- on -^ords imputing to a professional man 
 conduct which disgraces and injures him in his profession, it must 
 be averred and proved that the plaintiff was in the exercise and 
 practice of his profession at the time of the utterance of the slander ; 
 for if he has ceased to exercise his profession or employment at the 
 time the words are spoken, the words are not actionable on the 
 ground that they were spoken of him in his profession (f). 
 
 To say of a beneficed clergyman that he is drunk in church, or 
 that he preaches false doctrine, lies, and malice, and ought to be 
 degraded (u), or that he is an old rogue, and a contemptible fellow, 
 hated and despised by his parishioners (x), or that he has preached 
 a seditious sermon, and has moved the people to sedition (y), is 
 actionable : words also imputing fraudulent "and dishonest conduct 
 to a beneficed clergyman in some clerical matter (z), or accusing 
 him of incontinence, or the preaching of false doctrine, are action- 
 able, as they tend to injure him in his professional character, and, 
 if true, to subject him to a deprivation of his benefice, and to a 
 degradation of orders, and, consequently, to a loss of temporal 
 emolument. But if, at the time of the speaking of the words, the 
 plaintiff is not beneficed, and is not in the actual receipt of pro- 
 fessional beneficial emolument as a preacher, lecturer, curate, or 
 the like, there is no actual damage, and an action for slander is 
 not maintainable. " If the plaintiff be in orders merely, and not 
 in possession of any temporal advantage, as having professional 
 occupation, the only remedy appears to be in the Ecclesiastical 
 Court" (a). And whenever the words imply only general abuse, 
 and do not affect the plaintiff in his professional and clerical 
 character, they are not actionable without proof of special 
 damage (&). 
 
 Words impiiting^ official misconduct to a person in an office of 
 profit or trust are actionable per se. Thus, to say publicly of a man 
 who is in the enjoyment of an office of honour, profit, or trust, that 
 he is wanting in integrity in his office, or that he habitually neglects 
 his official duties, or that he is a corrupt man and takes bribes, is 
 actionable ; but if the words merely impute to him want of abUity 
 and general unfitness for his post, the words are not actionable 
 without proof of special damage (c). Whenever words are sought 
 to be made actionable on the ground that they were spoken of a 
 
 (s) AUeaon v. Moor, Het. 167. iv) Snt^idge's ccisei Co 19b 
 
 (t) BMamy v. Burch, 16 M. & W. (s) Pembertonr.ColU, 10 Q. B. 461 ; . 
 
 590 * 16 Law J., Q. B. 403. 
 
 (i)J)odd V. BoUnson, Aleyn, 63. (a) Gallwey y.ManMl, 9 :B^xoh. 295 ; 
 
 Oranden, v. Waldm, 3 Lev. 17 ; 1 KoU. 23 Law J., Exch. 78. 
 
 ^Ijj. gg (J) Pemherton v. OoUi, ut supra. 
 
 (x) Musgrave t. Boveg, 2 Str. 946. (c) Bac. Abr. Slandbe, B. 
 
 I F F F 
 
802 ORAL SLANDEK.V [CHAP. XVII. 
 
 man in office, it must be shown that they were spoken of him in 
 his character or conduct ill his office, and that they impute to him 
 the want of some qualification for, or misconduct in, his office ; for 
 if they impute to him only general misconduct and unfitness for 
 his situation, they wiU fail to support an action, without proof of 
 special damage (d). e 
 
 Words rendered actionable hy zeason of special damage. — If any 
 special damage has been sustained) by the plaintiff by reason of the 
 utterance of slanderous words, an action for damages is then main- 
 tainable. Thus,, to say of a spinster that she is in the family way, 
 or that she has had a child, is not per se actionable ; but if the girl 
 is about to be married, and she loses her marriage in consequence 
 of the utterance of the slander, a very grave cause of action arises (e). 
 If, in consequence of the utterance ' of slanderous words by the 
 defendant, the plaintiff has lost a situation, or been refused em- 
 ployment, there is special damage resulting from the wrongful act, 
 capable of sustaining an action. Thus, where the plaintiff was 
 chaplain to a peer, and the defendant falsely alleged of him that 
 he had had a bastard, whereby he lost the chaplaincy, it was held 
 that the plaintiff was entitled to maintain an action for compensa- 
 tion in damages on the ground that the chaplaincy was a temporal 
 preferment (/). So the loss by a married woman of the society, 
 comfort, and attention of friends by reason of slander, is a sufficient 
 "temporal" damage to sustain an action (g), although the loss of 
 her husband's society and conjugal attentions only, has been held 
 insufficient (Ji), unless the slander amounts to an imputation of 
 adultery on the wife, and the husband leaves her in consequence of 
 such imputation (i). But words spoken of a married woman 
 imputing want of chastity to her, whereby.she was not allowed to 
 continue a member of a religious society do not constitute sufficient 
 temporal damage (k). 
 
 Slanderous denunciations from the pulpit causing loss of custom, 
 situation, or employment. — If a priest or clergyman, or minister of 
 any religious denomination, singles out any particular member of 
 his congregation, and denounces him for misconduct in his trade or 
 profession, or in the execution of any office of trust, or if he defames 
 him generally, and slanders him in the face of the congregation, 
 whereby he loses a situation, or is dismissed from his employment, 
 and sustains special damage, the priest or clergyman wiU be answer- 
 
 (d) Lwmhy v. Allday, \ Cr. & J. 301. (h) LyncTi v. Knight, 9 H. of Ii. Ca. 
 Bopwood T. Thorn, 8 C. B. 313. 577. 
 
 (e) Davis v. Gardiner, i Co. 16b, pi. {i} Per Ld. Campbell and Ld. Cran- 
 11- worth, ib. 591, 596. 
 
 (/) Payne v. Seamiwrris, 1 Lev. 248. (Ic) Rolerts v. Boherts, 33 Law J., Q. B. 
 
 ((/) Davies y. Solomon, L. E., 7 Q. B. 249. 
 112. 
 
SECT. 2.] WRONGFUL DISMISSAL OF SERVANTS, ETC. 80.3 
 
 able in damages, if he cannot prove the truth of the charge he 
 makes ; for no minister of religion has a right to propagate slander 
 under the guise of. disseminating religious truth or repressing 
 vice (I). 
 
 Effect of the dismissal of a slandered servant, "being a wrongful 
 dismissal on the part of the master. — Where the plaintiff had been 
 hired by his master by the year, and his master wrongfully dis- 
 missed him, in consequence of some slanders respecting him, 
 circulated by the defendant, which were not actionable without 
 special damage, it was held that, as the dismissal was a wrongful 
 act on the part of the master, for which he was answerable in 
 damages to the plaintiff, there was no special damage resulting to 
 the plaintiff' capable of sustaining an action against the defendant. 
 "The supposed special damage," observes Lawrence, J., "was the 
 loss of the advantages to which the plaintiff was entitled under his 
 contract with bis master ; but he could not be considered in law as 
 having lost them, for he still had a right to claim them of his 
 master, who, without a sufficient cause, had refused to continue the 
 plaintiff in his service." "The special damage," further observes 
 Lord EHenborough, " must be the legal and natural consequence of 
 the, words spoken, and here it is an illegal consequence : a mere 
 wrongful act of the master, for which the defendant was no more 
 answerable than if, in consequence of the words, other persons had ' 
 afterwards assembled and seized the plaintiff, and thrown Trim into 
 a horsepond, by way of punishment for his supposed transgres- 
 ^sion" (m). 
 
 Effect of the slander being disbelieved by the master. — If the dis- 
 missal of the servant has been caused by the utterance of the 
 slander against him, the special damage results from the slander, so 
 as to render an action maintainable, although the master did not 
 believe in the slander, and did not dismiss the servant, because he 
 thought him guilty of the charge made against him, or considered 
 him untrustworthy. Thus, where the plaintiff set forth that she 
 was a straw bonnet-maker, in the employ of a Mrs. Enoch, and that 
 the defendant, who was the landlord, came to her mistress, and 
 told her that the plaintiff tapped at the windows, and conducted 
 herself shamefully and disgracefully, so that the house looked like 
 a bawdy-house, and Mrs. Enoch dismissed the plaintiff, but stated 
 in her evidence that she did not dismiss her because she believed 
 what the defendant told her, but because he was her landlord, and 
 she was afraid he would.be offended if she did not send the plaintiff 
 away after what he had said, it was held that the dismissal was the 
 
 (I) Gilpin V. Ifowler, 9 Exoh. 625; 23 1 Vin. Abr. 396. 
 LawJ.,Exch.l52. Barnabas 7. Trmnter, (m) Vicars v. If jZcocfe, 8 East, 3. 
 
 F F p 2 
 
804 DEAL SLANDER. [CHAP. XVII. 
 
 consequence of the slanderous words, and that damages were re- 
 coverable in respect thereof, although the mistress, to whom the 
 slander was uttered, did not helieve it (n). 
 
 Special damage, not being the immediate and natural consequence 
 'of the words spolcen — Unauthorized repetition of verbal slander. — 
 Whenever proof of special damage is necessary to maintain an 
 action of slander, it must appear that the special damage is the 
 immediate and natural consequence of the words spoken (o). If, 
 therefore, the use of slanderous words by the defendant, not 
 actionable per se, would have wholly faUed to produce any injurious 
 consequences, unless aided by the act of another, the injury resulting 
 from that act of the other is not to be ascribed to the defendant. 
 The unauthorised repetition of slanderous words is not the necessary 
 consequence of the original uttering of the words; and the original 
 utterer, therefore, is not responsible iu damages for the subsequent 
 repetition of the slander by persons who had no authority from him 
 to repeat what he had said. 
 
 Thus, where the substance of the plaintiff's allegation of special 
 damage was, that by reason of the defendant's false representations 
 to divers persons, one John Bryer refused to trust the plaintiff, and 
 the evidence was, that the words were addressed to one Edward 
 Bryce, and that Bryce, at a subsequent time and place, and without 
 any authority from the defendant, repeated the representations to 
 Bryer, so that the repetition of the words, and not the original 
 statement, occasioned the damage, it was held that the action was 
 not maintainable. " Every man," observes Tindal, C. J., " must be 
 taken to be answerable for the necessary consequence of his own 
 wrongful acts ; but such a spontaneous and unauthorized commu- 
 nication cannot be considered as the necessary consequence of the 
 original uttering of the words, for no effect whatever followed from 
 the first speaking of the words to Bryce.. If he had kept them to 
 himself, Bryer would stni have trusted the plaintiff. It was the 
 repetition of them by Bryce to Bryer, which was the voluntary act 
 of a free agent, over whom the defendant had no control, and for 
 whose acts he is not answerable, that was the immediate cause of 
 the plaintiff's damage. We therefore think that, as each count in 
 the declaration alleges as the only grievance the original false 
 speaking of the words, the allegation that, ' by reason of the 
 committing of such grievance, Bryer refused to give the plaintiff 
 credit,' is not made out by the evidence " (p). 
 
 But where the utterer of the slander directs it to be repeated in 
 any particular quarter, or mentions it to a person whose known 
 
 («) Knight T. Oibhs, 1 Ad. & E. 46. Bing. 211. Parhim v. Scott, 1 H. & C. 
 
 (o) Vicare v. Wikoch, 8 East, 3. 153 ; 31 Law J., Exch. 331. 
 
 (p) Ward T. Week!, 4 M, & P. 808 ; 7 
 
SECT. 2.] MALICE — PIUVILEGED COMMUNICATIONS. 805 
 
 duty it is to repeat it, he is responsible for the repetition of it. It 
 IS then his act, and is the natural and necessary result of the 
 utterance of the words (q). 
 
 Special damage directly resulting from the repetition of oral 
 slander. — ^Whenever loss of situation, or employment, or any other 
 special damage is the direct consequence of the utterance of oral 
 slander, the utterer is responsible, whether he is himself the 
 original author of the scandal, or merely repeats what he has heard 
 some one else say. A man cannot by law justify the repetition of 
 slander by merely naming the person who first uttered it ; he must 
 also show that he repeated it on a justifiable occasion, and believed 
 it to be true. " As great an injury may accrue from the wrongful 
 repetition as from the first publication or utterance of slander. 
 The person who repeats it may give greater weight to the 
 calumny, and may be actuated by greater malice than the original 
 utterer " (r). 
 
 Circumstances rebutting the presumption of malice. — If the 
 .circumstances connected with the utterance of the words rebut the 
 presumption of malice, there is no cause of action. Thus, where the 
 plaintiff brought an action against one for falsely and maliciously 
 saying of him that he had heard he was hanged for stealing a 
 horse, and on the evidence it appeared that the words were spoken 
 in grief and sorrow for the news, Hobart, J., caused the plaiatiff to 
 be nonsuited, for it was not said maliciously (s). 
 
 Privileged communications — Proof of malice. — We have already 
 seen that many communications and statements of a slanderous 
 character are privileged {ante, p. 779, et seg.). Where the plaintiff 
 proved that he had been in the service of the defendant, and had 
 been dismissed on a charge of theft, and that he afterwards came 
 to the defendant's house and had some communication with the 
 defendant's servants, when the defendant said to them, " I have 
 dismissed that man for robbing me ; do not speak to him any more 
 in public or in private, or I shall think you as bad as him," it was 
 held, that the statement being honestly made by a master as a 
 warning to his servants was a privileged communication, and that 
 it was incumbent on the plaintiff to give some evidence of malice 
 in order to raise a question for the jury {t). And where a vestry 
 meeting was held for the purpose of nominating and electing 
 constables, and hearing and deciding upon any objections that 
 might be brought forward against any of the candidates for the 
 office, and the defendant, a ratepayer, made a statement imputing 
 
 (q) Kendillon v. MaUby, Car. & M. Tidmany. Ainslie,\Q'E.xoh^&Z. 
 402. (s) Craviford.-v. Middletmi, 1 Lev. 82. 
 
 (r) M'Pkermn Y. Daniels, 10 B. & C. (t) SomirvUh v. Hawkins, 10 C. B. 
 
 273. Lewk v. ' Walter, 4 B, & Aid. 615. 590. 
 
80C ORAL SLA.NDEK. [CHAP. XVIT. 
 
 perjury to the plaintiff, who was one of the candidates, and said 
 that he was a person not to be believed on his oath, it was held 
 that the statement was privileged and protected if it was bon^ fide 
 and honestly made in full belief of its truth, and that it was 
 incumbent on the plaintiff to bring forward evidence of his general 
 character for truthfulness, in order to raise the question ^s to 
 whether the defendant in making the statement had been actuated 
 by any malicious motive (u). But althou.gh a man who makes a 
 charge against another may be justified by the occasion in making 
 it, yet he may make the charge in such a way, accompanied by 
 such expressions and under such circumstances, as furnish proof 
 that it was made maliciously (x). "When once a confidential 
 relation is established between two persons with regard to an 
 inquiry of a private nature, in which they are mutually interested, 
 whatever takes place between them relative to the same subject at 
 subsequent interviews, may be as much privileged as what passed 
 at the original interview (y). 
 
 Privileged clia/nges qf felony made bond fide, with reasonable 
 growids for, suspicion. — For the sake of public justice, charges and 
 communications which woidd otherwise be slanderous, are protected 
 if bond fide made in the prosecution of an inquiry into a suspected 
 crime. " It is argued," observes Coleridge, J., " that the charge 
 ought to be true, or ought to be made only before an officer of 
 justice. But the exigencies of society could never permit such a 
 restriction. If I stop a party suspected, must I not say why I do 
 so ? The presence of Qther parties would not do away with the 
 privilege." It is for the jury to say whether the circumstances 
 warranted the charge made by the defendant, whether it was made 
 bond fide, or before more persons than was necessary, or in language 
 stronger than the occasion justified (z). 
 
 Privileged statements and comments by advocates in the course of 
 judicial froceedings, or in the conduct of a cause. — " If a counsel (or 
 an attorney acting as an advocate) speaks scandalous words against 
 one in. defending his client's cause, an action lies not against him 
 for so doing ; for it js his duty to speak for his chent, and it shall 
 be intended to be spoken according to his client's instructions " {a). 
 The freedom of speech at the [bar is the privilege of the client 
 vested in the counsel who represents, him. It would be impossible 
 properly to conduct a cause in court unless considerable latitude 
 were allowed to the advocate, and if any evil follow therefrom, it 
 
 («) Kershaw t. Bailey, 1 Exch. 743. (z) Padmore v. Lawrence, 11 Ad. & E. 
 
 (as) Semior v. Medlmd, 4 Jur. N. S. 882. Amann v. Damm, 8 C, B., N. S. 
 1039. . ■ , 597, 
 
 (y), Beatson v. Shene, 5 H. & N. 855. 
 WaUace t. CarroU, 11 Ir. C. L. B. 485. 
 
 (») Wo9d V. Gmstom, Styles, 462. 
 Mackoi}^ V. JPoj-j?, ?9 Law J., Bxch, 404. 
 
SECT. 2.] STATEMENTS BY ADVOCATES, JUDGES, ETC. 807 
 
 must be endured for the sake of the greater good which attend it 
 "A counsellor, therefore, hath a privilege to enforce anything which 
 is informed unto him for his client and to give it in evidence, it 
 being pertinent to the matter in question, and not to examine 
 whether it be true or false " (&). It is pertinent to the cause for 
 counsel to comment both on the facts proved and on those which 
 he might expect to prove, and he may indulge freely in any 
 calumnious imputation which the facts before the court, whether 
 true br false, appear to warrant. " It would be impossible," observes 
 Abbott, J., " that justice could be well administered if counsel were 
 to be questioned for the too great strength of their expressions ; but 
 they ought not to avail themselves of their situation maliciously to 
 utter words wholly unjustifiable." Where, therefore, an attorney 
 was mixed up in the concoction of a pretended cause of action, and 
 in suing for a sum of money when he knew that there was no legal 
 claim and that the action must fail, and the counsel of the defendant 
 said that the action was founded in the knavery of the attorney, 
 that it was one of the most profligate things ever done by a pro- 
 fessional man, and that the attorney was a fraudulent and wicked 
 attorney, it was held that these observations and expressions of 
 opinion were privileged. " Perhaps," observes Lord EUenborough, 
 "the words were too strong, and, in the exercise of a candour 
 fit to be adopted, might have been spared. But still a counsel 
 might, bond j^de, think the expressions justifiable under the 
 circumstances " (c). 
 
 Befamatorry statements iy a jparty in open 'court conducting his 
 ovm cause are also privileged and protected, if they are relevant to 
 the subject-matter of inquiry, or are spoken during the heat and 
 excitement of a trial. " The party himself," observes Hoboyd, J., 
 "from his comparative ignorance of what is and what is not 
 relevant, maybe indulged in a greater latitude, and not be restricted 
 within the same limits as a counsel, whose superior knowledge 
 should be sufficient to restrain him within due bounds " {d). 
 
 Privileged comments and charges hy Judges and magistrates in 
 the eocercise of the duties, of their office. — We have already seen 
 that judges are not responsible for slanderous words spoken by 
 them concerning private individuals, if the words are material aiid 
 relevant to the cause or matter in issue before them. " Neither 
 party, witness, counsel, jury, or judge,, can be put to answer civilly 
 or criminally for words spoken in office " (e). But no judge of an 
 inferior court or magistrate has any immunity for slander ; and if 
 
 (V) Rrooh T. Montague, Cro. Jac. 90. 244 : KoU. Abr. 87, pi. 4. Ssvis v. 
 
 \c) Hodgscm V. Scarlett, 1 B. & Aid. Smith'W 0. B. 126 ; 25 L. J., C. P. 195. 
 2^1. (e) Beg. v. Skinner, Lofft. 55. 
 
 (d) Hodgson v, Sm-Utt, 1 B. & Aid. 
 
808 ORAL SLANDEE. [CHAP. XVII. 
 
 he goes out of, his way to calumniate an individual by uttering 
 charges wholly irrelevant to the matter in issue before him, and not 
 warranted by the occasion, he will be answerable in damages if 
 malice be clearly made out, and there is a want of reasonable and 
 probable cause for the slanderous observations {ante, p. 637). But 
 it is clearly within the sphere of the duty of magistrates to make 
 such comments upon the conduct and demeanour of witnesses and 
 parties coming before them, and upon the character of persons 
 whose conduct is involved in the inquiry before them as the occa- 
 sion seems to them to warrant, and they are entitled to express 
 their opinions concerning them with the utmost freedom, however 
 erroneous those opinions may be (/), provided the proceedings 
 before them are within their jurisdiction, and they have authority 
 to inquire into and adjudicate upon them. An action, therefore, is 
 not maintainable against a coroner for anything said by him whilst 
 he is addressing a jury impanneled before him, however defamatory, 
 false, or malicious in fact it may be {g). 
 
 Of the interpretation and application of the words used. — " In 
 former times," observes Pratt, C.J., " words were construed in mitiori 
 sensu, to avoid vexatious actions, which were then very frequent ; 
 but distinguenda sunt tempora, and we ought to expound^ words 
 according to their general signification to prevent scandals, which 
 are at present too frequent " (h). " The rule," observes Lord 
 EUenborough, " which at one time prevailed, that words are to be 
 understood in mitiori seTim, has been long ago superseded ; and 
 words are now construed by courts as they always ought to have 
 been, in the plain, popular sense in which the rest of the world 
 naturally understand them" (t). The effect of the words used, and 
 not the meaning of the paa^y uttering them, is the test of their 
 being actionable. " You must first ascertain the meaning of the 
 words themselves, and then give them the effect any reasonable 
 bystander would affix to them " (h). 
 
 Slander of title. — If lands or chattels are about to be sold by 
 auction, and a man declares in the auction-room, or elsewhere, that 
 the vendor's title is defective, that the lands are mortgaged, or that 
 the chattels are stolen property, and so deters people from buying, 
 or causes the property to be sold for a less price than it would 
 otherwise have realized, this is a slander upon the title of the 
 owner, and gives the latter a claim for compensation in damages, 
 unless the slanderer can prove the truth of his statement (T). . " An 
 
 (/) KendiUon y. Malthy, 2 M. & Rob. (») Roberts v. Camden, 9 East, 96. 
 
 438. Allardice t. Robertson, \ Dow., Woolmoth v. Meadows, 5 East, 468. 
 
 N. S. 514. (i) HanUnsom t. BilVy, 16 M. & W. 
 
 ig) Thomas v. Chirton, 31 Law J., Q. B. 442. 
 
 139. {I) ChasoU T. Mathers, 1 M. & W. 501. 
 
 (A) Button T, Heyward, 8 Mod. 24. Wren v. WeUd, infra. 
 
SECT. 2.] SLANDER OF TITLE. 809 
 
 action for slander of title," observes Tindal, C. J., "is not properly 
 an action for words spoken, or for a libel written and published, but 
 an action on the case for special damage, sustained by reason of the 
 speaking or publication of the slander of the plaintiff's title. It 
 is ranged under that division of actions in the Digests, and by 
 other writers on the text law." The plaintiff, therefore, in order to 
 sustain the action, must prove special damage, and there must be 
 an express allegation on the face of the declaration of some parti- 
 cular damage resulting to the plaintiff from the slander. Where, 
 therefore, a shareholder in a mining company complained of a 
 paragraph in a newspaper, asserting that a bUl had been filed in 
 Chancery invalidating his title to his shares, whereby he was 
 injured in his rights and his shares were depreciated in the market, 
 and he was prevented from selling them, it was held that this was 
 not such an allegation of special damage as the law required in 
 such actions ;' and that the necessity for an allegation of special 
 damage does not in anywise depend upon the medium through 
 which the slander is disseminated ; that is, whether it be through 
 words, or writing, or print (m). "To support the action," observes 
 Parke, B., " it ought to be shown that the false statement was made 
 Tnaldfide, and that the special damage ensues therefrom. If some 
 portions of the statement are lond flde, the injured party cannot 
 recover, unless he can distinctly trace the damage as resulting from 
 that part which is maid fide " (n). 
 
 To enable a party, moreover, to maintain an action for slander of 
 title, there must be malicfe, either express or implied, and the words 
 spoken must go to defeat the plaintiff's title. If the words are 
 spoken by a stranger, who has no right or business to interfere, the 
 law presumes malice ; and if he cannot' show the truth of his asser- 
 tion he is responsible in damages ; but if he is himself interested in 
 the matter, and announces the defect of title bond fide, either for the 
 purpose of protecting his own interest or preventing the commission 
 of a fraud, the legal presumption of malice is rebutted (o), and the 
 plaintiff must then show that there was no reasonable or probable 
 ground for the statement- If the alleged slanderer of title is him- 
 seK interested, or has fair and reasonable ground for believing 
 himself to be interested, in the sale or disposition of the property, 
 the title to which is alleged to be slandered, and has acted bond fide, 
 though under the influence of prejudice or misconception, he is not 
 responsible in damages unless it be shown that he must have known 
 that there was not the slightest pretence for his interference. " The 
 bona fides of the communication," observes Lord EUenborough, " and 
 
 (m) Malachj v. Soper, 3 Sc. 737-739. 2423. Smith v. Spooner, 3 Taunt. 253. 
 (n) Brook v. Bawl, 4 Exch. 524. See Steward x. Toung, L. R., 5 C. P. 
 
 {o) Hwrgrave y. Le Breton, i Burr. 122. 
 
810 LIBEL AND SLANDER. [CHAP. XVII. 
 
 not whether a mau of rational understanding would have made it, 
 is the question to be canvassed " {p). 
 
 In an action for slandering the plaintiff's title to a patent, 
 therefore, it is not sufficient to show that the defendant wrote to 
 persons in negotiation with the plaintiff for the purchase of 
 patented articles from him, stating that such articles were an 
 infringement of a patent of his, the defendant's, and that he should 
 claim royalties from them, if the defendant really had an existing 
 patent for somewhat similar articles, and no evidence of mala fides 
 is given (g). 
 
 " Slander of title," observes Maule, J., " ordinarily means a 
 statement of something tending to cut down the extent, of title, 
 which is injurious only if it is false. It is essential to give a cause 
 -of action that the statement should be false, and therefore its false- 
 hood is given in evidence under not guilty, since the new rules. 
 It is essential also that it should be malicious ; not, as Lord 
 Ellenborough observes, malicious in the worst sense, but with 
 intent to injure the plaintiff. If the statement be true — ^if there 
 really be the infirmity of title that is suggested, no action will he, 
 however malicious the defendant's intention might be. The jury- 
 may infer malice from the absence of probable cause, but they are 
 not bound to do so. The want of probable cause does not neces- 
 sarily lead to an inference of malice, neither does the existence of 
 probable cause afford any answer to the action " (r). 
 
 SECTION" III. 
 
 OE ACTIONS FOK LIBEL AND SLANDER (s). 
 
 Consolidation of actions for the same libel. — ^Where seven different 
 actions were brought against the same defendant, for seven different 
 publications of the same libel to different persons, which might all 
 have been comprised in one action, the court stayed the proceedings 
 in all of them, except one, until that one had been tried (t). 
 
 , Pa/rties to be made plaintiffs. — The party to be made plaintiff 
 in an action for libel or slander, is the person to whom the injury 
 immediately accrues, and not the party indirectly or remotely 
 affected by the libel. An action of slander does not lie by two 
 
 [p) Pitt T. Donovmi, 1 M. & S. 648. (s) See 30 & 31 Vict. c. 142, s. 10, 
 
 (?) WrenY. Weild, L. K., 4 Q. B. 730. ante, p. 565. 
 
 (r) Pater v. SaJcer, 3 C. B. 868. (t) Jones v. Pntehard, 6T>.&h. 530 ; 
 
 18 Law J., Q. B. 104. 
 
SECT. 3.] ACTIONS — PARTIES— PLEADINGS. 811 
 
 jointly against a defendant, when the tort which one received hy 
 the words spoken was not the tort which the other received ; but 
 they ought to sever in their actions, as in the case of false imprison- 
 ment (u). If, however, defamatory words he spoken of two partners 
 in trade respecting them in their trade, they may maintain a joint 
 action for the slander, averring special damage (x). 
 
 Parties to be made defendants. — Every publisher and disseminator 
 of written slander is liable to an action for damages, as well as the 
 ■oiiginal inventor, author, or utterer of the calumny. The person 
 who repeats it may, as we have seen, give greater weight to the 
 scandal, and may be actuated by greater malice than the original 
 utterer, and he cannot discharge himself from responsibility by 
 giving up the name of the author or first utterer of the slander. 
 The person slandered may, consequently, maintain an action for 
 damages arising from the publication of written slander against the 
 author and first publisher of the slander, as well as against any 
 subsequent publisher or disseminator thereof, unless the publication 
 can be justified or excused (?/). But in the case of verbal slander, 
 where the action is maintainable only in respect of some special 
 damage that has accrued from the utterance of the slander, the 
 action must, as we have seen, be brought against the person whose 
 wrongful act is the direct and immediate cause of the special 
 damage (z). 
 
 A corporation aggregate may be made answerable for a libel 
 published by its directions (a), 'although the body corporate had no 
 ill-will to the plaintiff, and did not mean to injure him, for great 
 injustice would be suffered by individuals if their remedy for 
 wrongs authorized by corporations aggregate were to be confined 
 to the agents employed by them. Therefore, where a railway 
 company falsely published through their electric, telegraph that a 
 bank had stopped payment, it was held that the company was 
 responsible ia damages for the false and slanderous intelligence (&). 
 Where the slander is made by two persons in a joint publication, 
 such as an affidavit sworn by both, they may both be made 
 defendants in one and the same action (c), but where slanderous 
 words are spoken by two different persons, separate actions should 
 be brought (d). 
 
 Declarations for libel and slander. — In every declaration forUbel 
 
 («) Dyer, 19a. ; Burrough, J., Barratt (a) Alexander v. North-East. Hail. Co,, 
 
 V. dUins; 10 Mdore, 451. 34 Law J., Q. B. 152. 
 
 (x) Le Fanu v. Makolmson, 1 H. L. C. (d) WhitfiM v. South-East. RaM. Ga., 
 
 637. Cook v. SatcheUor, 3 B. & P. 150 ; EU. Bl. & EU. 121 ; 27 Law J., Q. B. 
 
 ante, p. 594—1 ; post, eh. 21. 229. 
 
 (y") M'Phersm, v. Paniels, 10 B. & C. (c) Maithmd r. Ooldney, 2 East, 426. 
 
 273. Tidman y. Ainslie, 10 Bxoli. 63, (d) Chamberlam t, Qoodmn, Oro. Jac. 
 
 (?) Wa/rd T. Weeks, PasrUns t. Scott, 647. Swithim, v. Vincent, 2 Wilsi 227. 
 tttOe, pp. 5, 804. 
 
812 LIBEL AND SLANDER. [CHAP. XVIL 
 
 or slander, either by publication in writing or by words, the writing 
 or the very words themselves must be set out on the face of the 
 declaration, in order that it may be shown to the court that the 
 words are capable of receiving the innuendo or interpretation put 
 upon them, and of producing the injury whiich is charged to have 
 resulted from them (e) ; and also that the defendant may know the 
 certainty of the charge, and may be able to shape his defence either 
 on the general issue or by plea of justification accordingly ; and 
 this defect is not cured by verdict (/). "Whenever the charge," 
 observes Holroyd, J., " arises out of the publication of a written 
 instrument, the invariable rule is, that the instrument itself must be 
 set out in the declaration, that the defendant may have an opportu- 
 nity, if he pleases, of admitting all the facts charged, and of having 
 the judgment of the court whether the facts stated amount to a cause 
 of action ; for it is clear, that when it can be shown distinctly what 
 the instrument is upon which the whole charge depends, that 
 instrument must be shown to the court, in order that they may form 
 their judgment upon it. A defendant is not bound to put the 
 question as a combined question of law and fact to the jury, but 
 has a right to put it as a mere question of law to the court. The 
 setting out only the substance and effect of the writing would not 
 only deprive the defendant of that advantage, but also of his writ 
 of error ; and it would make the verdict of a jury binding in cases 
 where it ought not to be so " {g). 
 
 In actions for slandering a man in his trade or profession, the 
 declaration ought not merely to state that such scandalous conduct 
 was imputed to the plaintiff in his profession, but ought also to 
 show in what manner it was connected by the speaker with that 
 profession (Ji). 
 
 Of the innuendo or defamatory sense attributed to the writing or 
 words on the face of the declaration. — By the Common Law Procedure 
 Act, 1852, 15 & 16 Vict c. 76 (s. 61), it is enacted, that in all 
 actions for libel and slander the plaintiff shall be at liberty to aver 
 in his declaration that the words or matter complained of were 
 used in a defamatory sense, specifying such defamatory sense, 
 without any prefatory averment to show how such words or matter 
 were used in that sense, and such averment shall be put in issue by 
 the denial of the alleged libel or slander ; and where the words or 
 matter set forth, with or without the alleged meaning, show a cause 
 of action, the declaration is sufficient (€). The pleader, therefore, 
 may put any construction he pleases upon the words, and it is for 
 
 (e) Outsole v. MatKerg, 1 M. & W. 503. (h) Ayre v. Crmen, 2 Ad. & E. 7. 
 
 (/) Cookv. Cox, 3 M. & s: 116. James v. Brook, 9 Q. ti. 13. 
 
 (g) Wright y. Clements, 3 B. & Aid. (i) See Tfo«if» v. ^a«,. L. B., 3- Q. B. 
 
 509. Wood V. Brown, 6 Taunt. 169. 396. 
 
SECT. 3.] PLEADINGS — STATEMENT OF SPECIAL DAMAGE. <S13 
 
 the juiy to determine whether the construction is borne out by the 
 evidence (k). 
 
 The forms of declaration in the schedule to the above Act merely 
 set forth that " the defendant falsely and maliciously printed and 
 published of the plaintiff^ in a newspaper called, &c., the words 
 following, that is to say, &c., meaning thereby," &c., and, in cases 
 of verbal slander, " that the defendant falsely and maliciously spoke 
 and published of the plaintiff the words following, that is to say, 
 he is a thief, whereby the plaintiff lost his situation as, &c., in the 
 employ of," &c. Where the words, whether written or spoken, are 
 susceptible of a harmless, but also of an injurious meaning, the 
 injurious meaning must be set out as well as the words, and their 
 true import and signification may be established by evidence of 
 the surrounding circumstances (I). When the words are libellous 
 in themselves, no innuendo to explain their meaning is required (m). 
 If they are -incapable of the interpretation put upon them the 
 declaration is bad, and the court wiU, if necessary, arrest the judg- 
 ment. It is not necessary to allege formally that the defendant 
 published the libel, it is sufficient if the circumstances set forth 
 show that the libel was, in point of fact, published (n). 
 
 Statement of special damage in actions for verbal slander. — 
 When the words themselves are not actionable without proof of 
 special damage, the nature of the special damage must be parti- 
 cularised and set forth, in order that the defendant may be enabled 
 to meet the charge. If, by reason of the speaking of the words, the 
 plaintiff has lost the society of friends and neighbours, and the sub- 
 stantial benefits arising from their hospitality, this temporal damage 
 should be particularised, and the names of the neighbours and 
 friends who have refused to receive the plaintiff into their houses, 
 and entertain him at dinner, &c., should be specified (o). Where a 
 sinf'le woman brought an action against the defendant for saying 
 she was with child, and had miscarried, in consequence of which 
 she lost several suitors, it was held that she ought to have specified 
 the names of these suitors, as they were necessarily within her 
 knowledge {p). And where a; tradesman complained of a loss of 
 custom as a consequence of the slander, and must have known who 
 his customers were whom he had lost, he was required to state 
 ' their names on the face of his declaration (g). But if the declara- 
 tion alleges the special damage with as much certainty as the 
 
 (Ic) Hemminasr. (?a«so», Ell. Bl. & Ell. innuendo which is incorrectly stated is 
 
 346 • 27 Law J., Q. B. 253. bad. Watkim v. ffaU, supra. 
 
 (l) Griffiths T. Lewis, 8 Q. B. 851. (») Baldmm v. Slphinston, 2 W. Bl. 
 
 Galley v. MarshaU, 9 Exoh. 294 ; 23 1037. 
 
 Law J., Exch. 78. (o) ^oore-v. Meagher, 1 Taunt. 39. 
 
 (m) Bwrrett v. Long, 3 H. L. C. 413 ; (p) Barnes v. Pnidlin, 1 Sid. 396. 
 
 and, therefore, a plea answering an (?) Fenn t. Diae, 1 Koll. Abr. 68. 
 
814 LIBEL AND SLANDEE. [CIIAr. XVII. 
 
 suliject-matter is capable of, it is now sufficient. Thus, M'liere the 
 declaration alleged that the plaintiff, before the speaking of the 
 scandalous words by the defendant, was employed to preach to a 
 dissenting congregation at a certain licensed chapel, and that he 
 derived considerable profit from his good character and preaching, 
 and that by reason of the scandal of the- defendant the persons 
 frequenting the chapel had refused to permit him to preach there, 
 and had discontinued giving him the profits which they would 
 otherwise have given him, it was held that it was not necessary to 
 state the names of the persons who, in consequence of the slander, 
 discontinued giving the plaintiff the emoluments, and that it 
 was sufficient to show that, in consequence of the slander, he was 
 removed from his office, and lost the emoluments of it (r). And in 
 an action for slandei* of the plaintiff in his business of an innkeeper 
 or eating-house keeper, it was held to be sufficient to allege and 
 prove as special damage a general loss of custom from the slander, 
 Avithout stating the names of thfe customers who ceased to frequent 
 the establishment, as the customers of an inn are travellers and 
 persons passing to and fro, and it might be impossible for the 
 plaintiff to ascertain their names, or the reason why they ceased to 
 frequent the house (s). 
 
 What may he given in evidence under the plea of not guilty.^-. 
 It is competent to the defendant under the general issue to show 
 that the words were not spoken maliciously, by proving that they 
 were spoken on an occasion or under circumstances which the law, 
 on grounds of public policy, allows ; as in the course -of a par- 
 liamentary or judicial proceeding, or in giving the character of a 
 servant (t). If a shareholder in a public company has published 
 letters or writings imputing insolvency to the company, he may, 
 under the plea of not guilty, show that he was actuated by a desire 
 to protect the interests of the shareholders, and had reasonable 
 ground for making the imputation (m). The plea of not guilty 
 puts in issue the tendency of the alleged libel, and also the lawful- 
 ness of the occasion upon which it was published. The fact, there- 
 fore, that a libellous publication was a privileged communication, 
 or that it was a fair comment in a public journal on the acts of a 
 public man, may be given in evidence under this plea, but the latter 
 fact may be pleaded specially in addition to the plea of not guilty. 
 It does not foUow that a defence may not be given in evidence 
 imder " not guilty," because it might also form the subject of a 
 special plea {x). In an action for slander of the plaintiff in his 
 
 (»•) HunOey r. Uerring, 8 T. E. 133. (w) Metrop. Saloon Ommbm Co. v. 
 
 (s) Evans v. Em-ries, 1 H. & N. 251 ; BomUm, 4 H. & N. 151 • 28 Law J 
 
 26 Law J., Exdi. 31. Exch. 201. "' 
 
 (t) Littledale, J., M'Pheraon v. Danida, {x} IMie v. Price, ,5 Ad. & B. 6i5. 
 
 11 B. & C. 272. Hoare v. Siherloclc, 9 C. B. 28. Mean 
 
SECT. 3.] PLEA OF NOT GUILTY, APOLOGY, ETC. 815 
 
 office, profession, or trade, the plea of not guilty will operate as a 
 denial of speaking the words, or speaking them maliciously, and in 
 the defamatory sense imputed, and with reference to the plaintiff's 
 ofiice, profession, or trade, but it will not operate as a denial of the 
 fact of the plaintiff's holding the office or heing of the profession 
 or trade alleged. The innuendo or meaning, therefore, attributed to 
 the words in the declaration is put in issue by the plea of not 
 guilty (2/). 
 
 When the substance of the charge in the declaration is, that the 
 defendant has inflicted injury upon the plaintiff by the speaking 
 of disparaging words, not actionable in themselves, but forming a 
 ground of action, by reason of special damage having arisen from 
 the utterance of them, the plea of not gTiilty puts in issue all the 
 facts creating the special damage ; for without those facts, and with- 
 out the special damage, there is no wrong of which the plaintiff 
 has any reason to complain {z). Where the words are actionable in 
 themselves without special damage, a traverse of the allegation of 
 the special damage is immaterial and unnecessary. In such a case, 
 if the plaintiff proves his special damage he will recover it ; if he 
 fails in proving it, he may still resort to and recover his general 
 damages. A finding upon it, therefore, one way or the other, will 
 have no effect as to the right to the verdict (a). A plea to the 
 damage only is bad, unless the damage is so essentially the cause 
 of action that without it the action could not be maintained (5). 
 
 Plea that the libel was inserted without malice or gross nefflig'ence, 
 and that an apology was published — Payment of money into court. — 
 Ey 6 & 7 Vict. c. 96, s. 2, it is enacted, that in any action for a libel 
 contained in any public newspaper, or other periodical publication, 
 it shall be competent to the defendant to plead that the libel was 
 inserted without actual malice, and without gross negligence, and 
 that before the commencement of the action, or at the earliest 
 opportunity afterwards, the defendant inserted in such newspaper, 
 or other periodical publication, a fuU apology for the libel; or, if 
 the newspaper or periodical publication is published at intervals 
 exceeding a week, that he had offered to publish the apology in any 
 newspaper or periodical publication, to be selected by the plaintiif ;' 
 and that every defendant shall,, upon filing such plea, be at liberty 
 to pay into court a sum of money by way of amends for the injury 
 sustained (c). To entitle the defendant to the benefit of an apology 
 
 (Earl of) V. Smith, 26 Law J., Exeh. 94. B. N. 0. 372. Wyait v. Gore, Holt, N. 
 
 Lewis \.Lwy, 27 Law J., Q. B. 287. P. t!. 305 n. 
 
 (y) Eeg. Gen. 16 Vict. ; 1 Ell. & Bl. (6) BoUnson v. Mwrchant, 7 Q. B. 918. 
 
 App. Ixxx'l. K. 16 ; 16 & 16 Vict. c. 76, (c) The special plea of apology and 
 
 g g^_ payment into court cannot be pleaded 
 
 • (z) Wilby T. EUton, 8 C. B. 149. along with not guilty to the same part 
 
 NOrion v -SAolefidd, 9 M. & W. 665. of the declaration. O'Brien v. Clement, 
 
 {a) Smit/i V. Thorns, 2 Sc. 546 ; 2 15 M. & W. 435. 
 
816 LIBEL AND SLANDER. [CHAP. XVII. 
 
 under this statute, the apology should be printed in such a part of 
 the paper, and in siich a type, as -will he likely to ensure its perusal 
 by the persons who read the libel, or by all who read the paper (cZ). 
 
 When a plea denying actual maKce, and stating the publication 
 of an apology is pleaded, the publication of previous libels on the 
 plaintiff by the defendant is admissible in evidence, to show that 
 the defendant wrote the libel in question with actual malice. A 
 long practice of libelling the plaintiff may show in the most satis- 
 factory manner that the defendant was actuated by malice in the 
 particular publication, and that it did not take place through care- 
 lessness or inadvertence ; and the more the evidence approaches to 
 the proof of a systematic practice, the more convincing it is. The 
 circumstance that the other libels are more or less frequent, or 
 more or less remote from the time of the pubKcation of the libel in 
 question, merely affects the weight, not the admissibility, of the 
 evidence (e). 
 
 Pleas of justification. — To enable the defendant to give the truth 
 of the charge or imputation in evidence as a defence to the action, 
 the defendant must plead a plea of justification, alleging that the 
 plaintiff did the act imputed to him by the libel, and that the de- 
 fendant therefore published or spoke the words of which theplaiptiff 
 complains (/). Every plea of justification must meet and justify 
 the charge or complaint set out on the face of the declaration. If 
 it does not do this, reasonably and substantially, it is a nullity {g). 
 It must also, where the libel is in writing, justify everything con- 
 tained in the libel which is injurious to the plaintiff. If it imputes 
 to the latter that he has been guilty of some act that is discredit- 
 able to him as a gentleman, as well as of a criminal offence, the 
 plea of justification must cover the whole charge (A). But if the 
 libel contains several charges, the defendant may justify some of 
 them, and plead not guilty as to others (*). A plea of justification, 
 imputing general misconduct to the plaintiff, and giving no specific 
 instances of it, was formerly held bad on special demurrer Q£). A 
 defendant, for example, was not at liberty to charge a plaintiff with 
 swindling, without showing any special instances of it on the record, 
 that the plaintiff might come prepared to meet them 0. 
 
 (d) Lafone v. Smith, 7 W. R. 13. diet, it has been said that the plaintiff 
 
 (e) Barrett t. Long, 3 H. L. C. 414. may afterwards be put upoii his trial for 
 (/) Smith V. Michwrdson, Willes, 20. the felony by that Terdict without the in- 
 (g) Tighe v. Cooper, 7 Ell. & Bl. 639 ; tervention of a grand jury. Ld. Kenyon, 
 
 26 Law J., Q. B. 215. Wyatt v. Gore, Cook y. Field, 3 Esp. 134. 
 
 Holt, N. P. C. 308, n. (i) M'Qregor y. Gregory, 11 M. & W. 
 
 (A) Hdsham t. Blackwood, 11 C. B. 287. 
 128. Mountney v. Watfon, 2 B. & Ad. {k) HicUnbothamir. Leech, 10 M. & W. 
 
 673. Where a defendant justifl«s words 361. O'Brien t. Clement, 16 ib. 165. 
 which amount to a charge of felony, and (1) BuUer J., J'Anion v. Stawrt, 1 T. E. 
 
 proves his justification, and obtains a vert j'S^ ; 2 Smith's L, 0„ 6t;b ed., 67 — 70. 
 
SECT. 3.] ACTIONS— EVIDENCE. 817 
 
 The publication and dissemination of written or printed slander 
 cannot be justified^ as we have seen, on the ground that the libellous 
 matter was previously published by a third person, and that the 
 defendant, at the time of his publication, disclosed the name of that 
 person, and believed all the statements contained in the libel to be 
 true (m). 
 
 Evidence for the plaintiff (n) — Printed placards — Proof of 
 publication. — If a man writes a libel, aud puts it into his desk, this 
 is no publication of it ; but if a libellous paper or placard has been 
 notoriously circulated or posted up in places of public resort, proof 
 of a paper in the defendant's handwriting, corresponding with the 
 libellous placard, will be prima facie evidence against him of his 
 being the author of the libel, and render it necessary for him to 
 explain the matter (o). A libellous paper in the handwriting of 
 the defendant, found in the house of the editor of a newspaper, in 
 which the libel complained of appeared, is admissible in evidence 
 against the defendant, notwithstanding several parts of it have been 
 erased and are omitted in the newspaper, provided the passages 
 erased do not qualify the libel (p). If the Ubel on which the 
 action is founded contains any marked peculiarities in spelling, 
 style, or composition, letters of the defendant concerning the 
 plaintiff containing similar peculiarities are admissible in evidence, 
 to show that the defendant was the writer of the libel (q). The 
 2 & 3 Vict: c. 12, s. 2, which is re-enacted by the 32 & 33 Vict. 
 c. 24, requires every person who prints any paper or book intended 
 to be published or dispersed, to print his name and place of abode 
 or business upon the front of such paper, or upon the first and last 
 leaves of every paper or book consisting of more than one leaf, on 
 pain of forfeiting 51. for each copy so printed. 
 
 If in an action for slanderous words it be proved that some 
 person took down the words, that will not prevent another witness 
 from giving parol evidence of what the words were (r). If a party 
 makes a memorandum of particular facts and circumstances at the 
 time they occur and has not the paper with him, he may neverthe- 
 less give oral evidence of the facts independently of the writing (s) ; 
 
 (m) Tidman v. Ainslie, 10 Eich. 63. infringements of his patent, if he has no 
 
 M'Pherson v. Daniels, 10 B. & C. 273, bond fide intention to follow up his 
 
 OTerriiline the 4th resolution in .Lord threats by taking such proeeedmgs, 
 
 Northampton's case, 12 Kep. 134. See Bolhnsj. Hxnlcs, L. R., 13 Eq. Ca. 355. 
 
 ante p 776 (<') ^^ ^- -^^"™' ^ ^^- ^^T^- *17. 
 
 (»') As to'partionlars. where the action Lamih's case, 9 Co. 59 b. Rex y.Burdett, 
 
 is for stating that chattels sold by the 3 B. & Aid 717 ; 4 B. & Aid. 95 
 
 plaintiff were infringements of the de- [p) TarpUy r. BUheyi B. N. C. 437. 
 
 fendant's .patent, see Wren T. WeOd, (q) Brookes v. Titchboi-ne, 5 Exch. 
 
 L;'K., 4 Q. B. 213. And see as to an 929. 
 
 - injunction against u, patentee from pub- « Sheridan s tme, 31 How. St. Tr. 
 
 lishing statements of his intention to 673. 
 
 institute legal proceedings, in order to (s) Thistlewood's case, 33 ibid. /58. 
 deter persons from purchasing alleged 
 
 GOG 
 
f5l8 UBEL AND SLANDER. [CHAP. XVII. 
 
 but the non-production of the writing is of course matter for 
 comment and observation. 
 
 Where a defendant, who had a copy of a libellous caricature in 
 his house, showed it to another on being requested so to do, Lord 
 Ellenborough ruled that this was not sufficient evidence of publi- 
 cation to support an action (t). 
 
 Libellous matter contained in a private letter addressed to the 
 plaintiff himself, and only delivered into his own hands, is not 
 such a publication of a libel as will support an action {u). But 
 where it was proved that the defendant addressed a libellous letter 
 to the plaintiff, knowing that the plaintiff's clerk, in the absence of 
 the plaintiff, was in the habit of opening the plaintiff's letters, and 
 the letter was, in point of fact, received and opened by the clerk 
 before it reached the plaintiff's hands, Lord Ellenborough held that 
 there was sufficient evidence for the jury to consider whether the 
 defendant did not intend to put the clerk in possession of the 
 letter, and that if he did, there would be a publication of its 
 libellous contents (a;). The sending of a letter to a wife containing 
 libellous charges against her husband is a sufficient publication of 
 the libel ; for, to injure a man's character with his wife, or to assail 
 his honour by communications made to her, is to do him a grievous 
 wrong {y). 
 
 If a letter is sent by post, it is primd facie, evidence that the 
 person to whom it was addressed received it in due course («). 
 
 Where the defendant's daughter had been employed by him to 
 make out his bills and write letters for him on matters of business, 
 and the daughter wrote and published a libel upon the plaintiff in 
 her father's (the defendant's) name, it was held that this was not 
 sufficient to fix him with the authorship of the libel ; for the 
 principal is only responsible for the acts of his agent within the 
 limits of the authority delegated to the agent, and that it did not 
 follow, from a daughter being employed to make out bills and 
 write letters for her father for the purpose of conducting his 
 business, that she was authorized by him to write a libel ; and that 
 there ought to be some evidence to show that the libel was written 
 either by the command, or with the knowledge, of the defendant (a). 
 But if a man request another generally to write a libel, he is 
 answerable for the libel written pursuant to his request, and must 
 take his chance of what appears He is responsible, though some- 
 thing may be added which he did not state (6). 
 
 (e) SmAtTh T. Wood, 3 Campb. 323. (s) Warren v. Warrm, 1 Cr. M. & E. 
 
 (») Phillips T. Jansen, 1 Esp. 625. 250. 
 
 Peacock t. Meyml, 2 Brownl. 151. (o) Harding v. Greening, 1 Moore, 
 
 (x) Delacroix v. Thevenot, 2 Stark. 63. 479. 
 
 {y) Wenman v. Ash, 13 C. B. 842 ; 22 (6) Reg. t. Cooper, 8 Q. B. 536. 
 Law J., C. P. 190. 
 
SKCT. 3.] EVIDENCE— PUBLICATION IN NEWSPAPERS. 819 
 
 Pullication in newspapers.— E,\iirj sale of a newspaper to a 
 person sent to purchase it is a fresh publication, and, therefore, 
 "where an action was brought in respect of a libel in a newspaper, 
 published seventeen years before the action, and the Statute of 
 Limitations was pleaded, it was held that the plea was negatived 
 by proof that a copy of the paper had been purchased from the 
 defendant by the plaintiff's servant, sent to obtain it, within the 
 six years. , And where the proof of publication relied on was the 
 sale of a copy of a newspaper to a messenger sent by the plaintiff 
 to procure it, who, on receiving it, carried it to the plaintiff, it was 
 held that this was a sufficient publication to sustain an action for 
 damages ; for a < lefendant who, on the application of a stranger, 
 delivers to him the writing which, libels a third person, publishes 
 the libellous matter to such stranger, though he may have been 
 sent for the work by the plaintiff himself (c). 
 
 If a man wraps up a newspaper, and sends it into another 
 county by a boy, the man who sends the paper is the publisher of 
 it, and not the boy, who is ignorant of the contents of the paper, 
 and is an innocent agent in the transaction (d). 
 
 Proprietorship of newspapers containing libels. — Theprovisions of 
 the 32 & 33 Vict. c. 2-t, as to the printing the name of the printer 
 on every paper or book intended for publication, have been men- 
 tioned {ante, p. 817). That Act further re-enacts the 19th section 
 of the 6 & 7 Will. 4, c. 76 (e), which provides, that if any person 
 shall file a bill for the discovery of the name of any printer, 
 publisher, or proprietor of a newspaper, in order more effectually 
 to bring or carry on an action for libel, it shall not be lawful for' 
 the defendant to plead or demur to such bill ; but the defendant 
 shall be compellable to make the discovery required. It has 
 accordingly been held that a bill against the publisher of a news- 
 paper to discover the name of the proprietor is not demurrable (/) ; 
 such discovery, however, is not to be made use of against the 
 defendant in any other proceeding than that for which the 
 discovery is made. 
 
 Proof of the utterance of the words charged in actions for verbal 
 slander.— The plaintiff need not pi'ove all the words laid in the 
 declaration, but he must prove so much of the very words alleged 
 to have been spoken as is sufficient to sustain his cause of action; 
 and it is not enough for him to prove equivalent words of 
 
 Ic) Brunswick {Duke of) r. Banner, 1 tion in Rex v. AmpUit, 4 B. & 0. 35. 
 
 Q B 189 (e) The 6 & 7 Will. 4, c. 76, is 
 
 (d) Best S.RexY. Burdett, 4 B. & repealed by the 33 & 34 Viet. c. 99. 
 
 Aid 126 Proof of the delivery, by (/) Dixon t. Enoch, L. K, 13 Eq. Ca. 
 
 order of the defendant, of a copy of a 394. Whether it would he against a 
 
 newspaper to the officer at the Stamp mere stranger who happened to know 
 
 Office, was held to be proof of publica- the name of the proprietor, qumre, S. 0. 
 
 a a a 2 
 
820 LIBEL AND SLANDEE. [CHAP, XVII. 
 
 slander (7); but if the words proved in evidence convey sub-, 
 stantially the same imputation, and the only difference is that the 
 same thing is expressed in a different form of words, or is jDroved 
 to have been done in a different way from that charged in the 
 declaration, the variance may be amended at the trial (A). If 
 words alleged to have been spoken affirmatively were only put 
 interrogatively, or if they convey quite a different imputation from 
 that charged in the declaration, the defect cannot be amended (i). 
 
 Proof of the siiigmg of libellous songs. — -Where a libellous song 
 was sung in the streets from a printed paper, which had been 
 destroyed, the singer of the song was allowed to prove that a paper 
 produced was an exact copy of the song that was sung {h). Where 
 a number of placards are printed by order of the defendant, no one 
 of the printed papers is an original more than the rest. When 
 they are printed they aU become originals, and the manuscript is 
 discharged {!). 
 
 Application of the libel to the plaintiff. — If the libellous words 
 point to no person in particular, it becomes a question of evidence 
 whether they do or do not apply to the plaintiff (m). If the name 
 of the person libelled is left in blank, or is designated by asterisks, 
 evidence may. be given to show who was meant. "It is not 
 necessary that aU the world should understand the libel; it is 
 sufficient if those who know the plaintiff can make out that he is 
 the person meant" (n).- Where a class is described, it may very 
 well be that the slander refers to a particular individual. That is 
 a matter of which evidence is to be laid before a jury, and the 
 jurors are to determine whether, when a class is referred to, the 
 slander was pointed at the plaintiff (0). Where, however, it appears, 
 from the matter complained of, that there was not any intention 
 of libelling any particular individual, but that the imputations 
 intended to be conveyed were meant to be cast upon the public 
 authorities, or some of several public functionaries, the plaintiff 
 cannot recover (p). 
 
 Proof of the defamatory sense of the words used. — It must appear 
 to the court, from the words set out in the declaration, that they are 
 capable of conveying or bearing the defamatory meaning assigned 
 to them ; and if so, it is for the jury to determine whether, in 
 point of fact, the construction put upon the words by the plaintiff 
 
 (g) Maitland v. Goldney, 2 East, 437. (k) Johnson v. Eudaon, 7 Ad. & E. 
 
 Orpwood V. Ba/rkes, i Bing. 263. 233, n. 
 
 {h) Post, cli. 21, s. 1. Amendment. (I) Rex v. Watson, 2 Stark. 130. 
 
 (ii Barnes -v. HoUoway, 8 T. K. 150. (m) Hfyry wether -r. Turner, 19 Law J 
 
 Bdl V. Byrne, 13 East, 563. WalUrs v. C. P. 10. 
 
 Mace, 2 B. & AUi. 756. Cartvyright v. (n) Bourke v. Wa/rren, 2 C. & P. 310. 
 
 Wright, 5 B. & Aid. 616. Brooks v. (o) Le Fanu \. Modcolmson, 1 H. L 
 
 Blmsha/rd, 1 Cr. & M. 791. See Sheri- 637. 
 d<in's case, ante, p. 817. (p) Solomon t, Lawson, 8 Q. B. 823. 
 
SECT. 3.] EYIDENCE— SENSE OF -WOEDS USED. 821 
 
 is borne out by the evidence (q). When the words are susceptible 
 of a harmless meaning, it is for the plaintiff to show that they 
 were used in a libellous and not in a harmless sense. If the 
 plaintiff attributes to them a much wider and more extensive 
 meaning than they fairly warrant, or the words do not fairly bear 
 the meaning imputed to them, the defendant will be entitled to a 
 verdict (r), unless the words are manifestly libellous as they stand, 
 and require no meaning to be assigned to them ; in which case 
 the meaning assigned to them by the plaintiff may be rejected 
 as surplusage (s). An insensible or repugnant meaning may be 
 rejected as surplusage on demurrer, or on motion in arrest of 
 judgment; but a plaintiff who has by his declaration assigned a 
 particular meaning to equivocal words, which are not necessarily 
 slanderous, and fails to establish that meaning by his evidence, 
 cannot reject the meaning he has himself adopted, and resort to 
 another interpretation of the words (f). 
 
 Where the words used have an equivocal meaning, but are 
 well understood and known in a libellous sense, it is for a jury to 
 say whether they were used in that sense or not (u). " We ought 
 to attribute," observes Coleridge, J., " to a jury an acquaintance 
 with ordinary terms and allusions, whether historical, or figurative, 
 or parabolical. If an expression, originally allegorical, has passed 
 into such common use that it ceases to be figurative, and has 
 obtained a signification almost literal, we must understand it as it 
 is used." The term "frozen snake," has an application very 
 generally, known, which is calculated to bring into contempt a 
 person against whom it is directed. If, therefore, a publication 
 imputes to a person that his friends, who have been assisting him, 
 have realised in him the fable of the frozen snake, it is for a jury 
 to say whether these words do not convey an imputation of 
 ingratitude to friends and benefactors, and if they do they are 
 actionable {x). 
 
 If the meaning is so obscure and doubtful as to render the 
 document incomprehensible, it is not actionable, although the 
 plaintiff's name may be mentioned therein in an impertinent 
 manner, and the publication may have been evidently intended to 
 vex and annoy him (ij). 
 
 In an action for words, some of which, if spoken and understood 
 
 (q) Solomon-v. Zawson, ut sup. Hem- Smith v. Caren, S Camiph. 4:61. Sellers j. 
 
 -mings \. Gasson, ante, p. 813. Homer v. Till, 4 B. & 0. 655. 
 
 Taunton, 5 H. & N. 663 ; 29 Law J., («) Wakleij v. ffealey. 7 C. B. 605. 
 
 Exch. 318. Saboneau v. Farrell, 15 C. B. 360. Ore- 
 
 (r) Broome v. Gosdm, 1 C. B. 732. OT7Je v. CAopman, 5 Q. B. 745. 
 
 Williams \. Gardiner, 1 M. & "W. 249. (x) Howre v. Silverlook. I -I Q. B. 624. 
 
 (s) Harvey v. French, I Cr. & M. 11. See Cox v. Lee, L. B. 4 Exch. 284; 38 
 
 Roberts v. Camden, 9 East, 92. Law .J., Exch. 219. 
 
 it) Williams t, Stott, 1 Cr..& M. 689. {y) CapelY. Jones, 4 C. B. 263. 
 
822 LIBEL AND SLA.NDEE. [CHAP. XVIL- 
 
 iu their ordinary sense, would certainly be actionable, the juiy may 
 consider whether, taking the whole of the conversation together, 
 the particular words are so qualified by the other parts of the 
 conversation as to show that they were not intended to give the 
 idea which their ordinary and primary meaning would give (z). 
 If the words themselves are not of a defamatory character, they 
 are not actionable, although special damage may have resulted to 
 the plaintiff from the utterance of them. There is no ground for 
 presuming malice from the utterance of words innocent in them- 
 selves, and a jury cannot infer it. Thus, where the plaintiff, a 
 serving-maid and shopwoman, alleged in her declaration that the 
 defendant maliciously spoke these words concerning her,—" She 
 (the plaintiff) secreted Is. 6d. under the till, stating that these are 
 not times to be robbed ; " and that by reason of the speaking of 
 these words by the defendant she had been refused "a situation, it 
 was held that, as the words did not of necessity import anything 
 injurious to the plaintiff's character, they were not capable of 
 sustaining an action, although they had been followed by special 
 damage. " It is said," observes Patteson, J., " that the words are 
 actionable because a person, after hearing them, chose in his 
 caprice to reject the plaintiff as a servant. But if the matter was 
 not in its nature defamatory, the rejection of the plaintiff cannot 
 be considered the natural result of the speaking of the words. 
 To make the speaking of the words wrongful, they must in their 
 nature be defamatory " (a). 
 
 Admissibility of evidence of surrounding circumstances to explain 
 and iJoint the libel — Interpretation of the words used. — The ordinary 
 popular sense of the writing, language, or words alleged to be 
 libellous or defamatory, is to be taken to be the meaning of 
 the printer, publisher, or speaker of them {ante, p. .808) ; but a 
 foundation may be laid for showing another and different meaning. 
 Something may have previously passed which gives a peculiar 
 character and meaning to some expression ; and some word, which 
 ordinarily, or popularly is used in one sense, may, from something 
 .that has gone before, have a meaning different from its usual one. 
 When, therefore, it is wished to get rid of the ordinary meaning, 
 the witness must be asked if there was anything to prevent those 
 words from conveying the meaning they ordinaHly would convey ; 
 and if evidence is given, and a foundation laid for it, then the 
 further question may be put, "What did you understand by 
 them ? " (&). It must first be shown that the word is used in, and 
 
 (z) Shvfiey r. TodMnter, 7 C. & P. (o) Kellp v. Partington, 5 B. & Ad. 
 
 680. 651. 
 
 (h) Daines T. EarUey, 3 Exch. 205, 
 
SECT. 3.] EVIDENCE— SUBSEQUENT LIBELS. 823 
 
 has acquired, a peculiar sense, and then a witness may he asked 
 ■whether he understood it ip that sense. The phrase "lame duck," 
 would be actionable if applied to a person on the Stock Exchange, 
 because there it has acquired a particular meaning, which could be 
 shown. So of the word " black sheep," as applied to an attorney ; 
 or of the word " blackleg," if it can be shown that it had acquired 
 a similar signification as applied to gamesters (c). 
 
 The defendant has a right to have the whole of the publication 
 read, in order that the meaning of particular passages may be 
 illustrated and explained by the context of the whole writing (d) ; 
 and in an action for oral slander, he is entitled to have the whole 
 conversation of which the slanderous words formed part given in 
 evidence, in order to explain the meaning of particular expressions, 
 and to show that they did not convey the imputation sought to be 
 fastened upon them. 
 
 Froof of subsequent libels to explain and point the libel charged in 
 the declaration may be given, hut if the evidence is offered for the 
 mere purpose of swelling the damages it will he rejected. " The 
 distinction," observes Lord Abinger, " is, you may give evidence of 
 subsequent words to explain the words in the declaration : but 
 when there is nothing equivocal in the words charged, you cannot 
 give evidence of subsequent words of the same import, for which 
 subsequent words another action may be brought and damages 
 recovered ; inasmuch as the record in this action would be no bar 
 to a subsequent action for the same words, though the evidence 
 now offered would tend to aggravate the damages in this " (e). 
 
 Proof of successive libel's to show malice. — As the spirit and 
 intention of the person publishing a libel are fit to be considered 
 by a jury in estimating the injury done to the plaintiff", evidence 
 tending to prove it cantiot be excluded simply because it may 
 disclose another and different cause of action ; but whenever the 
 evidence given does disclose another cause of action, the jury 
 should be cautioned against giving any damages in respect of it. 
 And if such evidence is offered merely for the purpdse of obtaining 
 damages for such subsequent iiijury, it will be properly rejected (/). 
 Defamatory statements, therefore, made by the defendant subse- 
 quently to the publication of the libel, are admissible in evidence 
 merely to show malice ; but if any considerable distance of time 
 has elapsed between the publication of the libel and the speaking of 
 the words; they ought to be received with very great caution, as they 
 
 (c) Watson, B., Sarnett v. AUen, 3 H. (/) Pern-son v. Le Maitre, 5 M. & Gr. 
 
 & N 381 • 27 Law J. Exch. 415. 720 ; 6 Sc. N. E. 607. Barwell v. Ad&ins, 
 
 {d) Cooke V. Hughes. Ry. & M. 115. 1 M. & G. 808. Darby y. Ouseley, 1 H, 
 
 (e) Pearce v. Omsby, 1 M. & Bob. & N. 13.. 
 456. 
 
824 • LIBEL AND SLANDER. [CHAP. XVII. 
 
 may refer to something that has taken place between the plaintiff 
 and the defendant subsequently to the libel, and may not, there- 
 fore, amount to any proof of malice at the time of the publication 
 of the libel (^). And when such statements are given in evidence, 
 the defendant is entitled to get rid of the effect of them by proving 
 the truth of the words QC). 
 
 Evidence of malice. — To sustain an action for libel or slander, 
 the plaintiff must show that it was malicious; but every un 
 authorized publication of defamatory matter is, in point of law, to 
 be considered as malicious, and it is a question of law, whether the 
 communication is authorized or not. If it be authorized, the legal 
 presumption of malice arising from the unauthorized publication 
 of defamatory matter fails, and the plaintiff, to sustain his action, 
 must prove actual malice, or, as it is usually expressed, malice in 
 fact (i). Whenever one man is proved to have used words imputing 
 the commission of felony, or of any other indictable offence to 
 another, he will be taken to have used them maliciously, unless he 
 gives some sufficient excuse for using them, as in giving the 
 character of a servant, makiag a charge to a constable, &c. The 
 defendant's conduct in putting a justification on the record which 
 he does not attempt to prove, and will not abandon, may be taken 
 into consideration by a jury, as proving malice and aggravating 
 the injury, and every other part of the defendant's conduct down 
 to the time of the trial may be considered by the jury ; for acts, 
 although subsequent, may indicate the existence of motives at a 
 former time (A). 
 
 Froof of injury to the plaintiff. — If the tendency of the 
 publication is injurious to the plaintiff, the law will presume that 
 the defendant, by the act of publishing it, intended to produce the 
 injury it was calculated to effect, and it is the duty of a judge, if 
 he thinks the publication injurious to the plaintiff, to teU ,the jury 
 it is a libel and actionable (Z). Every person who publishes in 
 writing matter injurious to the character of another, is considered 
 in point of law to have intended the consequences resulting from 
 his act («i). 
 
 Evidence of special damage. — When proof of special damage is 
 essential to the maintenance of the action {ante, p. 798), it must be 
 proved as laid, and any substantial variance between the allegation 
 and th.e proof will be ground of nonsuit. It must appear also to 
 be the natural and necessary result of the speaking or publishing 
 of the words, or it will fail to sustain the action. Where the 
 
 ig) ITemmings v. Qasion, Ell. Bl. & 2 C. B. 605. 
 
 Ell. 346 ; 27 Law J., Q. B. 252. (k) Simpson T. Robinson, 12 Q. B. 513. 
 
 {k) Warne v, Chadwell, 2 Stark. 457. (l) Haire v. WiUon, 9 B. & 0. 645. 
 
 (i) Cressn-ell, J., Coxhead v. Hieharda, (m) Fisher v, ClemeM, 10 B. & G. 475. 
 
SECT. 3.] EVIDENCE OF PLAINTIFF'S TEADE, ETC. 825 
 
 plaintiff alleged that he had. engaged Madame Mara to sing at his 
 oratorio, and that the defendant published a libel concerning her, 
 in consequence of which she was prevented from singing, from an 
 apprehension of being hissed, whereby the plaintiff lost the benefit 
 of her services, it was held that the injury complained of was too 
 remote, and not to be connected with the cause assigned for it ; 
 that if the libel was injurious to Madame Mara she might have 
 an action for it, but her refusing to perform might have proceeded 
 from groundless apprehension or mere caprice, and not from the 
 publication of the libel; and the plaintiff therefore was non- 
 suited (n). If there are two distinct causes of special damage, one 
 proceeding from the act of the defendant and another from the act 
 of a third party, and the special damage may have resulted from 
 either, it will fail to support an action (o). If the declaration 
 alleges as special damage, that several named persons had ceased 
 to have dealings with the plaintiff in the way of his trade, the 
 persons themselves must be called to prove the fact (p). 
 
 Proof of the trade, or profession, or official chiracter of the 
 plaintiff. — ^Where the libel imputes to the plaintiff misconduct in 
 his practice of a physician or surgeon, or as an attorney, and does 
 not call in question or deny his qualification to practise, it will not 
 be necessary for him to do more than prove that he was acting in 
 the particular professional capacity imputed to him at the time of 
 the publication of the libel (q). But when the libel or slander 
 imputes to a medical or legal practitioner that he is not properly 
 qualified, and the professional qualification is denied, the plaintiff 
 must be prepared to prove it, by producing his diploma or 
 certificate (r), duly sealed or signed, and stamped, where a stamp is 
 requisite (s). If the document is not admissible in evidence on its 
 production under the Documentary Evidence Act {t), the signatures 
 must be proved in the ordinary way. 
 
 Proof that the words were spoken concerning a tradesman or 
 professional man in the way of his trade orprofession. — In order to 
 recover damages for slanderous words spoken of a tradesman or pro- 
 fessional man in his trade or profession, it must be shown how the 
 words were connected with his profession. To impute immorality to 
 a clerk of a gas company, to say that he " consorts vrith whores," is 
 " a disgrace to the town," and " unfit to hold his situation,'' is not 
 actionable, because they are not connected with his character and 
 
 (n) Ashley v. Harriaon, 1 Esp. 48. Smith v. Taylm; 1 B. & P. N. R. 204. 
 
 (o) Vica/rs v. Wil^oclca, 8 East, 2. Rutherford t. Evans, 6 Bing. 461. 
 
 (») TUk T. Parsons, 2 C. & P. 202. (r) As to apothecaries, see 14 & 15 
 
 T-unniOiffe v. Moss, 3 C. & K. 83. Vict. c. 99, s. 8. 
 
 lo) Berrvman t. Wue, 4 T. R. 366. (s) See 33 & 34 Vict. c. 97, ss. 16, 17. 
 
 ^ (e) 8 & 9 Vict. c. 113 i post, ch. 21. 
 
82G LIBEL AND SLANDEE. [CHAP. XVII. 
 
 conduct ,as a clerk. He may be a very good clerk, well fitted for 
 his duties, although he is scandalously immoral (■«). 
 
 Eoidmce on the, part of the defendant — Traverse of material 
 allegations. — If the libel contains a cha'rge upon a man in the way 
 of his trade or business, the allegation concerning such trade or 
 business must, if traversed, be strictly proved as it is set forth in 
 the declaration, and the defendant is at liberty to bring evidence to 
 disprove it, notwithstanding the disproving of the allegation does 
 in effect prove the truth of the libel. If the plaintiff in his 
 declaration alleges that he was, at the time of the publication of 
 the libel, themanufacturer of a particular article, which he sup- 
 plied to his customers in tlie way of his trade, and the defendant 
 traverses the allegation, and the plaintiff establishes a primd facie 
 case, the defendant is entitled to prove that the plaintiff did not 
 manufacture the particular article he pretended to make, but a 
 composition of a very different description, although the evidence 
 amounts to proof of the truth of the charge imputed by the libel, 
 and there is no plea of justification on the record (x). 
 
 Froof of the truth of the charge or accusation. — If the defendant 
 can show that the defamatory charge or accusation made by him 
 against the plaintiff is true in substance, he answers the claim for 
 damages (jj). But to enable him to give the truth in evidence, in 
 answer to the action, there must be a plea of justification on the 
 record (z). The truth is an answer to the action, not because it 
 negatives the charge of malice (for a person may wrongfully or 
 maliciously utter slanderous matter, though true), but because it 
 shows that the plaintiff is not entitled to recover damages, for the 
 law will not permit a man to recover damages in respect of an 
 injury to character which he either does not, or ought not to, 
 possess (a). 
 
 Where the defendant justifies words which impute a felony to 
 the plaintiff, it is competent to him to go into proof of his 
 justification, although the plaintiff has been tried and acquitted of 
 the charge, the trial and acquittal being res inter alios acta (b). If 
 the plaintiff has been tried and convicted, the conviction may be 
 given in evidence in support of the plea of justification. If a man 
 be adjudged by the sessions to be the father of a bastard child, the 
 
 (m) Lumby v. Allday, 1 Cr. & Jerv. As to an order for particulars of the 
 
 301. matters relied on to prove tlie truth of 
 
 (a;) Manning t. Clement, 7 Bing. 368. the plea, see Jones t. Bewicke, L. li., 5 
 
 (y) An ii, accurate statement is not, C. P. 32. 
 
 therefore. necessaii'y libellous. SieAlex- (a) Littledale, J., in M'Pherson v. 
 
 ondir T. North-Fast. Hail. Co., 34 Law Daniels. 10 B. & C. 272. 
 
 J., Q. B. l.';2. (b) JSngkmd v. Bourke, 3 Esp. 80. 
 
 (z) O'Brien v. Bryant, 16 M. & W. Cook v. Field, ib. 134. 
 168. MsaUv. Russell, S Sc. }!). E. 801. 
 
SECT. 3.] DAMAGES EECOVEEABLE. 827 
 
 adjudication is an answer - to any complaint made by him against 
 any one for saying or publishing that he has had a bastard (c). 
 When the plaintiff has not been actually convicted of the felony 
 he must be tried by the jury on the plea of justification, in the 
 same way as if he was on his trial upon an indictment for the 
 offence in a criminal court ; so that, if there is a doubt of his guilt, 
 the jury are bound to give him the benefit of the doubt {d). 
 
 If a person publishes a libel and then pleads a justification, the 
 court will not assist him to obtain evidence in support of his plea (e). 
 
 The damages recoverable in actions for defamation will materially 
 depend upon the nature and character of the libel, the extent of its 
 circulation, the position in life of the parties, and the surrounding 
 circumstances of the case. Where an action was brought for 
 slanderous words, imputing subornation of peijury to the plaintiff, 
 and the defendant snffered judgment by default, and on the 
 execution of a writ of inquiry of damages the plaintiff gave no 
 evidence of any actual damage, but his counsel addressed the jury, 
 who assessed the damages at 40Z., and the defendant then moved to 
 set aside the inquisition on the ground that nominal damages only 
 were recoverable in the absence of any proof of actual damage on 
 the part of the plaintiff, it was held that the plaintiff was not 
 bound to give any such evidence to support the- inquisition (/). 
 If the defendant had any ground to urge in mitigation of damages, 
 he should have proved it before the sheriff's jury. 
 
 The jury may give to the plaintiff damages for the publication 
 of the libel and for the mental suffering arising from the appre- 
 hension of the consequences of the publication {g). The damages 
 are almost altogether in the discretion of the jury (A). The 
 court will not interfere with them unless they are shown to be 
 manifestly outrageous and extravagant {i). 
 
 Evidence in aggravation of damages cannot, as we have seen, 
 be given, if it establishes another cause of action against the 
 defendant {ante, p. 823) ; for, if that were permitted, the jury would 
 be giving damages for a second libel in an action for the first (Jc). 
 Although a plea of justification, imputing felony to the plaintiff" is 
 abandoned at the trial and apologized for, still the putting of such 
 a plea upon the record and failing to prove it is evidence of malice, 
 
 (c) Thornton v. Pickering, 1 Freem. 686, where tte jury pave a farthing under 
 
 283 Webb v. Cook, Cro. .Jac, 535. Hex the circumktai.ces of thc^case, although 
 
 V MiUp 1 Lfi. Ka\m. 394. Jer\is,C.J., the libels were gross and offensive, and 
 
 mUham V. Blackwood, 11 C. B., 128. had been frequently repeated. Forsdyke 
 
 id) Richnrds v. Turner, Car. & M. 417. v. Stone, \j. R., 3 C. 1' 607, ace 
 
 (e) Metrop. Saloon Ormibus Co. v. H) Gilbert v. Burtenshaw. Cowp. 230. 
 
 Hawkins, 4 H. & N. 151. Highmore v. Eavl of Harrington, 3 C. B., 
 
 if) Trim V. Thomas, 3 15. & C. 427. N. S. 142. Harrison v. Pewree, 32 Law 
 
 Yq) Goslin v. Corn,. 8 Sc. N. K. 25. T. R. 298. 
 
 (A) KeUy v. Sherlock, L. K., 1 Q. B. (Jc) Pinnerty v. Tipper, 2 Campb. 74. 
 
828 LIBEL AND SLANDEE. [CHAP. XVIL 
 
 and a great aggravation of the defendant's conduct, as showing an 
 animus of persevering in the charge to the very last. The putting 
 of such a plea upon the record, therefore, is a matter proper to be 
 taken into account by the jury in estimating the amount of 
 damages (I). 
 
 Mitigation of damages. — A defendant is not now allowed to 
 give evidence of the truth of the defamatory charge or statement 
 in mitigation of damages (m), but must, if he wishes to rely upon 
 it in any way, put a plea of justification on the record (ante, p. 826). 
 But where the plaintiff, by his declaration, alleges that before the 
 publication of the libel he had always preserved a good character 
 and position in society, from which he has been driven by the 
 insinuations in the libel, and claims damages accordingly, evidence 
 is admissible to show that, prior to the publication of the libel, the 
 plaintiff's character was so bad, that he was universally avoided 
 and shunned (n) ; for whenever a person claims damages on the 
 ground of disparagement t6 his character, it may be shown by 
 evidence that his character was blemished prior to the utterance of 
 the slander of which he complains (o). 
 
 Evidence of this sort must, however, be used with extreme 
 caution, or it will tend to the aggravation rather than the mitigation 
 of the damages." If the circumstances amount to a justification 
 of the libel, they are not then receivable in mitigation of damages, 
 as '.they should have been pleaded by way of justification if the 
 defendant meant to rely upon them (p). In some cases, general 
 evidence of the plaintiff's bad character has been held to be inad- 
 missible in mitigation of damages (q). In other cases, the defendant 
 has been allowed to prove, by cross-examination of the plaintiff's 
 witnesses, that rumours and reports of the same tenor as the libel 
 were current prior to the publication of the libel, and were the 
 common topics of conversation (r). Eumours current after the 
 utterance of slander cannot, of course, help the defence, as they are 
 the natural result of the dissemination of the slander, and tend only 
 to aggravate the damages (s). 
 
 It is no ground for mitigation of damages that the defendant, at 
 the time he uttered the slander, stated that he heard it from another 
 person, naming such person (t). 
 
 Proof of libels hy the plaintiff on the defendant. — " If a man is 
 
 (Z) Wcmiiich v. Foulkes, 12 M. & W. ^ost, cli. 22, b. 1. 
 508. (5) Jones v. Stevens, U Pr. 265. 
 
 (m) Underwood t. Paries, 2 Str. 1200. (r) Wyatt t. Gore, Holt, N. P. C, 306. 
 
 (m) Leicester (Earl of), v. Walter, 2 Richards v. Richards, 2 M. & Eob. 557. 
 Campb. 251. (s) Thompson V. Nye, 20 Law J., Q. E. 
 
 (o) Lord EUenborough, C.J,, t. 85 ; 16 Q. B. 175. 
 
 Moor, 1 M. & S. 286. (<) Bennett v. Bennett, 6 C. & P. 588. 
 
 (p) Watson T. Christie, 2 B. & P. 224 ; .See ante, p. 817. 
 
SECT 3.] ■ DAMAGES— OTFEK OF AI'OLOGY, 829 
 
 in the habit of libelling others^ he complains," observes Sir James 
 Mansfield, " with a very bad grace of being libelled himself ; and 
 if- two men are concerned in publishing monstrous libels against 
 each other every day, there can be no claim to damages on either 
 side " (v). But the defendant cannot give in evidence, in mitiga- 
 tion of damages, other libels published by the plaintiff concerning 
 him, unless the defendant can show that the libels proceeding 
 from the plaintiff were connected with the libels proceeding from 
 the defendant, for one libel cannot be set off against another, 
 unless it can be shown that they are connected together, and that 
 the libel published by the plaintiff provoked the libel published by 
 the defendant, and that the plaintiff is himself, to a certain extent, 
 the cause of the injury for which he claims compensation in 
 damages (x). When the object is to show that the defendant was 
 provoked, by libels published against him by the plaintiff, to 
 retaliate by publishing the libel of which the plaintiff complains, 
 it is essential to prove that the plaintiff's libels came to the 
 defendant's knowledge before he published his libel (2/). When the 
 libel is published concerning persons not parties to the record, it 
 cannot be read in evidence in mitigation of damages. 
 
 Evidence of offers of apology in mitigation of damages. — By 6 & 7 
 Vict. c. 96, s. 1, it is enacted, that in any action for defamation it 
 shall be lawful for the defendant (after notice in writing of his 
 intention, given to the plaintiff at the time of filing or delivering 
 the plea in such action), to give in evidence, in mitigation of 
 damages, that he made or offered an apology to the plaintiff for such 
 defamation before the commencement of the action, or as soon after- 
 wards as he had an opportunity, in case the action was commenced 
 before there was an opportunity of offering an apology. (See ante, 
 
 p. 815). 
 
 Of the judge's direction' to the jury. — The 32 Geo. 3, c. 60, s. 1, 
 
 enacts, that on trials for libel the jury may give a general verdict of 
 auilty or not guUty, upon the whole matter put in issue, and shall 
 not be required or directed by the court or judge to find the de- 
 fendant guilty merely on the proof of the publication by the 
 defendant of the paper charged to be a libel, and of the sense 
 ascribed to the same. Also (s. 2) that the judge shall, according to 
 his discretion, give his opinion and directions to the jury on the 
 matter in issue (z), who may (s. 3) find a special verdict. The usual 
 course in cases of libel since the passing of this statute is, first to 
 give a legal definition of the offence, and then to leave it to the 
 jury to say whether the facts necessary to constitute that offence are 
 
 (a) Firmerty v. Tipper, 2 Campb. 72. (y) Watts v. Fraser, 7 Ad. & E. 232. 
 
 ix) May T Brovm, 3 B. & 0. 126. (2) Baylis v, Jiawrmce, 11 Ad. & B. 
 
 ro)yZe3fT,-BZa6ey,2B, N, U. 441. 924. 
 
.830 LIBEL AND SLANDER. [CHAP. XVII. 
 
 proved to their satisfaction, and that, whether the libel is the sub- 
 ject of a criminal prosecution or a civil action. The judge, as a 
 matter of advice to them in deciding the question, may give his own 
 opinion as to the nature of the publication, but is not bound to do 
 so as a matter of law (a). "The cases," observes Lord Denman, 
 " show that a judge mufet not leave the fact of the defendant's 
 intention as a question for the jury (&), except so far as the inten- 
 tion may be shown by the tendency of the publication itself. A 
 man may wilfully publish a mischievous libel without intending to 
 injure the party, and may be responsible. He may, indeed, in effect, 
 do him no harm by the publication ; for it may be that blame from 
 some quarters is more valuable than praise. Yet he must answer 
 for such a publication " (c). 
 
 It is the duty of the judge to say whether a publication is 
 capable of the meaning ascribed to it ; but when the judge is satis- 
 fied of that, it must be left to the jury to say whether the publication 
 has that meaning or not (d). 
 
 Where the defendant sets up as a defence that the communi- 
 cation was a privileged communication, but the judge holds that 
 there are comments by the defendant in excess of the privilege, the 
 judge is not thereby justified in telling the jury that the defendant, 
 by exceeding his privilege, has been guilty of a libel, for whenever 
 there is evidence of malice, either extrinsic or intrinsic, in answer 
 to the immiinity claimed by reason of the occasion, a question arises 
 which the jury, and the jury alone, ought to determine. AVhenever 
 there are expressions in a publication which may reasonably be 
 contended to prove malice, the plaintiff has a right to have the 
 whole matter submitted to the jury, for them to say whether, in 
 writing and publishing it, the defendant was acting hand fide or 
 maliciously (e). But if words used in a privileged communication 
 are capable of two interpretations, one compatible with, the other 
 incompatible with, the absence of malice, the former interpretation, 
 it seems, should be allowed to prevail (/). 
 
 Setting aside verdict— Arrest of judgment, — If the publication is, 
 on the face of it, libellous, and the jury, nevertheless, find their 
 verdict for the defendant, the verdict may be set aside, and a new 
 trial obtained {g). If the judge and jury think the publication 
 libellous, still if on the record it appears not to-be so, judgment 
 must be arrested Qi). If an action be brought for speaking slanderous 
 
 (a) Parmiter y, Goupland, 6 M. & W. 25 Law J., Q. B. 367. Staee v. QriMth 
 
 108. .Rex V. Watson, 2 T. R. 206. L. R.,, 2 P. C. Ca. 420. ' 
 
 (6) //aire v. Wihon, 9 B. & C. 645. (/) Spia v. Maide, 38 Law J., Exch. 
 
 (c) Baylit V. Lawrence, 11 Ad. & E. 138. 
 924. (g) Parmiter v. Coupland, 6 M. & W 
 
 [d\ Stvrt T. Blagsf, 10 Q. B. 908. 105. 
 
 (e) Coohe v. WUdes, 5 Ell. & Bl. 342 ; (A) Heame v. Stowell, 12 Ad. & E. 
 
SECT. 3.] REMEDY BY INDICTMENT. , 831 
 
 words all at one time — that is, all in one count — and there is a 
 verdict for the plaintiff, though some of the words will not maintain 
 the action, yet if any of the words will, the damages may be given 
 generally ; for it shall be intended that the damages were given for 
 the words which are actionable, and that the others were inserted 
 only for aggravation. But if the action be brought for several 
 slanders spoken at several times, and the action will not lie for the 
 words spoken at one time, but will lie for the words spoken at another, 
 and a verdict be found for all the words, and entire damages given, 
 the judgment will, it seems, be arrested . (i). If the words appear, 
 upon the face of the declaration, to have been spoken at one time, 
 the whole may be considered as one count, containing words action- 
 able and not actionable, and the verdict will stand upon those which 
 are actionable (k). 
 
 Indictments for libel and slander. — Malicious defamation either 
 in printing or writing, or by signs and pictures, and, in certain cases, 
 by word of mouth, has always been considered an indictable offence 
 at common law {l), as tending to promote strife, and quarrels, and 
 breaches of the peace by inciting persons to revenge themselves for 
 the affront, or for the preservation of their good name. A libel 
 upon a magistrate or public officer in the execution of his public 
 duty, has also always been considered a great public offence, as it 
 tends to bring the administration of justice and the government itself 
 into contempt. 
 
 Although the person libelled be dead at the time of the publica- 
 tion of the libel, yet it is punishable if its tendency is to stir up 
 others of the same family or society to break the peace in vindica- 
 tion of the memory of the deceased, or if ft be a libel upon a 
 magistrate or public officer (m). 
 
 A person may be indicted and punished criminally, not only for 
 the publication of scandalous writings, but also for singing libellous 
 songs and poems directly tending to a breach of the peace, and for 
 holding up persons to shame and ignominy by ridiculous and 
 degrading pictures and prints, or by reproachful or ignominious 
 signs, such as fixing up a gallows over a man's door (n). 
 
 A person may be convicted, also, of a misdemeanour for pub- 
 lishing a libel upon a class of persons, such as the clergy of a 
 particular diocese, or the residents of a particular locality, if the 
 direct tendency of the publication is to stir up riot and disorder, and 
 incite to a brfeach of the peace (o). 
 
 731 GoldsUin v. Fois, 6 B. & C. 159. (m) De Libellis Famosis, 5 Co. 254. 
 
 SolortKm T. Lawsan, 8 Q. B. 837. Bex v. Topkam, 4 T. R. 194. 
 
 (i) Grifdlis v. Lewis, 8 Q. B. 852. (ft) De Libel liij Famosia, ut sup. 
 
 Ik) Alfred T. Farlow, ib. 863. (o) Rex v. Williams. 5 B. & Aid. 595. 
 
 U) Hawkins' Pleas of the Crown, Bex. v. Osborne, 2 iiarnard. 138, 166. 
 
 eh. 73 ; 3 Inst. 174 ; Bract, lib. 3, c. 86. Anon, 2 Swanat. 503, n. 
 
832 LIBEL AND SLANDEK. [CHAP. XVII. 
 
 When a person, either by writing, or by publications in print, 
 or by any other means, calumniates the proceedings of a court of 
 justice, he renders himself liable to an indictment for a misde- 
 ^meanour (p) ; but the propriety of a verdict; or the correctness of 
 the decisions of a judge, may be canvassed and controverted, pro- 
 vided it be done with fairness and candour, and temperate reasoning 
 and argument, published with a view to elucidate the truth, and not 
 to bring the administration of justice into hatred and contempt (q). 
 
 The composing and writing of a libel, with a view to its publica- 
 tion, is in itself a misdemeanour, triable in the county where the 
 libel was composed and published, though the publication after- 
 wards takes .place in a different county. If, therefore, a libel be 
 written in one county and published in another, the libeller may be 
 prosecuted in either county (r). 
 
 Upon an indictment, as well as in an action, there is a great 
 distinction between slander by word of mouth, and slander in a 
 published writing. As regards slanderous writings, it is said that 
 wherever an action will lie for composing or publishing them, 
 without alleging any special damage, an indictment may. also be 
 maintained (s) ; but an indictment cannot be supported for mere 
 verbal slander, unless it is seditious or blasphemous, or directly 
 tending to a breach of the peace, or is uttered respecting a magis- 
 trate in the execution of his office (t). Thus, where it was said of 
 an alderman, " "When he puts on his gown Satan enters into it," and 
 of a mayor, " You are a forsworn mayor, and have broke your oath," 
 also, " You, Mr, Mayor, are a rogue and a rascal," it was held that 
 these were but loose, unmannerly words, not punishable criminally 
 ' by indictment (u). 
 
 The 6 & 7 Vict. c. 96, ss, 4, 5, makes a distinction in respect 
 of punishment between persons who maliciously publish defamatory 
 libels, knowing them to be,fa,lse, and those who publish them with- 
 out having any knowledge one way or the other on the subject, 
 
 When the truth of the matter may be given in evidence. — Formerly, 
 in all cases of indictment or information for the public or criminal 
 offence of libel, it was immaterial whether the libel was true or 
 false, or whether the person libelled was of good or ill fame (x). 
 But now, by 6 & 7 Vict. c. 96, s. 6, it is enacted, that on the trial ' 
 of any indictment or information for a defamatory libel, the defen- 
 dant, having pleaded such plea as in the statute mentioned, may 
 have the truth of the libel inquired into, but that the truth of it 
 
 (jj) Rexv. Watson, 2 T. E. 199. v. Imgley, 2 Salk. 697. H. v. Wriaht- 
 
 (5) Bex V. White, 1 Campb. 359. son, ibid. . 
 
 {r) Rex T. Bwrdett, 4 B, & Aid. 95. («) £eg. v. LcmgUy, 6 Mod 125 Sex 
 
 (s) ArcKb. Crim. Plead., 16th ed., 899, v. Pocock, 2 Str. llgS, See ante, p. 798 
 
 '" W See pe Jiibelljp Pamosisl 5 Co! 
 
 900. 
 
 (i) Sex V. Weltye, 2 "Campb, ^4^. ^^ 254, 
 
SECT. 3.] EEMEDY BY INDICTMENT. 833 
 
 shall not amount to a defence, unless it was for the public benefit 
 that the matters charged as libellous should be published. 
 
 In an information for a seditious libel, the production of the 
 London Gazette, stating that certain addresses had been presented 
 to the Crown, is sufficient evidence of the fact {y). 
 
 Evidence for the defence. — If, upon the trial of any indictment 
 or information for libel, evidence is given establishing a presump- 
 tive case of publication against the defendant by the act of any 
 other person by his authority, it is competent to the, defendant to 
 prove that the publication was made without the defendant's 
 authority, consent, or laiowledge, and that the publication did not 
 arise from want of due care or caution on his part. 
 
 The public offence of libel against a private individual, being 
 only a misdemeanor, does not in anywise suspend or interfere with 
 the right of action for damages (s). 
 
 It is not competent to a defendant charged with the publication 
 of a seditious libel to prove that similar libels had been previously 
 published by other persons who had not been prosecuted for it (a). 
 
 (2/) R. V. HoU, 5 T. E. 436. (o) R. y. Holt, supra, 
 
 {z) See ante, pp. 31, 32. 
 
 H H H 
 
834 
 
 CHAPTER XVIII. 
 
 OF FRAUDULENT MISEEPEESENTATION AND DECEIT, PEAUDU- 
 
 LENT CONCEALMENT, BREACH OF WARBANTY AND 
 
 FALSE PRETENCES. 
 
 Seption I. — Of fravdvlent misrepresenta- 
 tion and deceit, fravdvient concealment, 
 breach of wwrranty, and false pretences. 
 — ^Wilful or unintentional deceit — 
 • — Representations by a person of a par- 
 ticular fact wlien he knows that he has 
 no knowledge at all about it — State- 
 ments and representations which must 
 be authenticated by a signed writing — 
 False representations coneerning the 
 conduct, credit, ability, trade, or deal- 
 ings of co-partnerships and joint-stock 
 companies — Misrepresentation by di- 
 rectors — PubUoation of deceitful pro- 
 spectuses and (reports — Fraudulent 
 breach of warranty — Proof of warranty 
 — Private representations — False re- 
 presentations amounting to a warranty 
 — Eepresentations concerning matters 
 which lie ae much within the know- 
 ledge of one party as the other — Re- 
 presentations amounting merely to 
 expressions of opinion and belief — 
 Statements in answer to inquiries — 
 Warranties by vendors — False repre- 
 sentations of title— False representar 
 tions by vendors and manufacturers 
 of the character and quality of the 
 articles they manufacture and sell- 
 
 Sale of goods by sample — False re- 
 presentations by railway companies — 
 Deceit by agents — False assumption 
 of authority — Counterfeiting trade- 
 marks — Warranty of articles sold with 
 trade-marks upon them — Fraudulent 
 assumption of the name of a bank — 
 Deceit by provision-dealers — False 
 and fraudulent representations by mar- 
 ried women and infants — Fraudulent 
 concealment on sales of chattels — 
 Fraudulent concealment of the dan- 
 gerous nature of articles delivered to 
 a, bailee to be warehoused or carried 
 — Fraudulent sales with all faults and 
 without allowance for any defect, error, 
 or mis-statement. 
 Section II. — Of actions for fraud amd 
 deceit — Remed/y ty indictment a/nd im- 
 junction. — Parties, pleadings, defences, 
 and evidence — ^Proof of fraudulent 
 warranties on sales of horses — Proof 
 of unsoundness — Damages recoverable 
 — Indictments for obtaining money or 
 goods by false pretences, and for the 
 fraudulent use of trade-marks — In- 
 junction to prevent fraud, and thft 
 fraudulent use of trade-marks, names, 
 &c. 
 
 SECTION I. 
 
 OF FRAUDULENT MISREPRESENTATION AND DECEIT; FRAUDULENT 
 CONCEALMENT AND BREACH OP WARRANTY. 
 
 Of wilful deceit.^- An action cannot be supported for the telling 
 a bare, naked lie, ie., saying a thing which is false, knowing or not 
 knowing it to be so, and without any design to impose upon or 
 cheat another, and without any intention that another should rely 
 
SECT. l.J WILFUL OR UNINTENTIONAL DECEIT. 835 
 
 upon the false statement, and act upon it (a) ; but if a falseliood 
 be knowingly told, with an intention that another person should 
 believe it to be true, and act upon it, and that person does act 
 upon it, and thereby suffers damage, the party telling the falsehood 
 is responsible in damages in an action for deceit, there being a 
 conjunction of wrong and loss, entitling the injured person to 
 compensation (b). Where a gun had been delivered by the 
 defendant to the plaintiff for the purpose of being used by him, 
 with an accompanying representation that he might safely use it, 
 and that representation was false to the defendant's knowledge, and 
 the plaintiff, acting upon the faith of its being true, used the gun, 
 and received damage thereby, it was held that he was entitled to 
 recover compensation for the injury from the defendant (c). 
 
 If a defendant has made a false representation knowing it to 
 be false, with intent to induce, and has thereby induced, the 
 plaintiff to enter into a contract into which, but for that mis- 
 representation, he would not have entered, and the plaintiff has 
 been damnified by the falsehood, a case of fraud is made out, and 
 an action for damages is maintainable (d). But if it be a contract 
 made with the defendant, the plaintiff, on discovering the fraud 
 should at once repudiate the contract; for, where the plaintiff 
 engaged to convey away certain rubbish for a certain price under 
 a false representation by the defendant as to the amount of 
 rubbish to be moved, it was held, that, having knowledge of the 
 fraud before the work was finished, he was not at liberty to finish 
 the work and then sue for more than the stipulated price. He 
 ought to have repudiated the contract at once (e). It is not 
 necessary in all cases to show that the defendant knew the 
 representation to be untrue ; for if he made the statement for a 
 fraudulent purpose, and without believing it to be true, and with 
 the 'intention of inducing the plaintiff to do an act, and the 
 plaintiff does the act to his own prejudice, an action for damages 
 is maintainable (/). 
 
 Unintentional deception. — But a person who has reason to believe, 
 and actually believes, a particular fact to be true, and accordingly 
 represents what he believes, is not liable to an action merely 
 because it turns out that he was mistaken, and that his represen- 
 tation was unintentionally false (g) ; for, if every untrue statement 
 
 (a) Behnv. KembU, 7 C. B., N. S. 260. 4 M. & W. 337. Farrant v. Barnes, 11 
 
 lb) Com Dig. Action upon the case C. B., N. S. 553 ; 31 Law J., 0. P. 139. 
 
 Deoeipt, a. 9, A. 10. Parke, B., Watson Barry v. CrosJcey, 2 Johns. & H. 21. 
 
 V Poidson 15 Jur. 1112. " Dolus mains {d) Oanham t. Barry, 15 0. B. 620. 
 
 est omnis'machinatio, calliditas, fallacia, (e) Selway v. Fog^, 5 M. & W. 86. 
 
 ad oircumTeniendum, fallendum, decipi- (/) Taylor v. Ashton, 11 M. & W. 415. 
 
 endum aliquem adhibita."-Dig. Ub. 4, (g) OoUms v Fvms, 5 q. B. 826. 
 
 tit 3 lex 1 s 2 Ormrod v. Ruth, 14 M. & W. 664. Chil- 
 
 (c/ Lmigndger. levy, 2 M. & W. 530; ders v. Wookr, 29 Law J., Q. B. 129. 
 
 H H H 2 
 
836 FKAUD AND DECEIT. [CHAP. XVIII. 
 
 whicli produces damage to another would found an action at law, 
 a man might sue his neighbour for any mode of communicating 
 erroneous information, such (for example) as having a conspicuous 
 clock too slow, whereby the plaintiff was induced to neglect some 
 important duty : hut if it be shown that the defendant was under 
 any legal obligation to state the truth correctly to the plaintiff, 
 there would be a legal grievance in misleading him, for which an 
 action would lie ; still more so, if he made the false representation 
 with a view to some unfair advantage to himself Qi). 
 
 In order to maintain an action for deceit, or for a false and 
 
 fraudulent representation, it is not necessary to prove that the 
 
 false representation was made from a corrupt motive of gain to 
 
 the defendant, or a wicked motive of injury to the plaintiff; it is 
 
 enough if a representation is made which the person making it 
 
 knows to be untrue, and which is intended or calculated to 
 
 induce another to act on the faith of it in such a way as that he 
 
 may incur damage, and that damage is actually incurred. A 
 
 wilful falsehood of such a nature is, in the legal sense of the word, 
 
 a fraud (i). Whether the defendant has any interest in the 
 
 assertion he makes, or in the matter respecting which it is made, 
 
 is perfectly immaterial (Jc). And whether the representation be 
 
 made to the plaintiff, or a third party, is immaterial, if it is false 
 
 to the knowledge of the defendant, and has been made for the 
 
 purpose of being communicated to the plaintiff, in order that he 
 
 might act upon it, and the plaintiff has acted upon it, and has 
 
 sustained damage from the deceit (i). The general rule appears to 
 
 be, that if any man makes a fraudulent representation for another 
 
 to act upon, either directly or indirectly, and such representation 
 
 is calculated to induce that other person to act on it, and he does 
 
 act on it, the person who makes the representation is responsible 
 
 in damages. Thus, where a director of a company puts forth 
 
 transferable shares into the market, and publishes and circulates 
 
 false statements and representations for the purpose of selling the 
 
 shares, the false representation is deemed in law to be made to 
 
 all persons who read the public announcements, and become 
 
 purchasers of shares on the faith of the statements contained in 
 
 them (m). But it must be shown that the damage of which the 
 
 plaintiff complains was brought about by the wrongful act of the 
 
 defendant (w). 
 
 (h) Barky \.Walford, 9 Q. B. 208. , (m) Scott v. Dixon, 29 Law J., Exeh. 
 
 (■i) Ld. Tenterclen, C.J., PolhiU t. 62, n. Bedford v. Bagshm, ib. 65. Ld. 
 
 Walter, 3 B. & Ad. 123. MUne v. Mar- Campbell, Wilde v. Gibson, 1 H. L. C. 
 
 wood, 15 C. B., 778 ; 24 Law J., C. P. 623. Barry v. Croehey, ante, p. 835. 
 
 36. (») CoUms V. Oa/ee, 4 H. & N. 234 ; 28 
 
 (k) Pasley v. Freeman, 3 T. E. 60, 62. Law J., Bxch. 204, 
 
 Q) Langridge v, Levy, ante, p. 835, 
 
SECT. l.J FALSE CLAIM OF LIEN, ETC. 837 
 
 False representations under pretence of a claim of right — False 
 claim of lien. — An action is maintainable for a false and malicious 
 representation, though made under the pretence of a claim of right, 
 if it was made without reasonable and probable cause, and must 
 have been known to be false by the person making it, and special 
 damage has resulted to the plaintiff from the wrongful act. Thus, 
 where a defendant, knowing that there had been no agreement 
 between him and the plaintiff for a lien on the plaintiff's goods, 
 falsely pretended that he was entitled to a lien on them, and 
 made the representation without any reasonable foundation for it, 
 and from improper and malicious motives, and dp-mage resulted 
 therefrom to the plaintiff, it was held that the defendant was 
 bound to make compensation to the plaintiff for the wrong done to 
 him (o). 
 
 Representations Tyy a person of his knowledge of a particular fact, 
 when he knows that he has no knowledge at all about it. — If a man 
 imdertakes positively to assert that to be true which he does not 
 know to be true, and which he has no grounds for believing to be 
 true, in order to induce another to act upon the faith of the 
 representation, and the representation is acted upon and turns out 
 to be false, and the person who has acted upon it has been 
 deceived and damnified, he is entitled to maintain an action for 
 compensation. Whoever pretends to positive knowledge of the 
 existence of a particular fact, when in truth he knows nothing at 
 all about it, does iu reality make a wilful representation, which he 
 knows to be false, and if the representation is made in order that 
 another may rely upon it and act upon it, and it is acted upon, 
 and damage flows from the false representation, the person making 
 it is in principle guilty of wilful deception and fraud (p). Lord 
 Mansfield lays it down generally that, in a representation made to 
 induce a person to enter into a contract, it is equally actionable 
 for a man to undertake to assert that of which he knows nothing, 
 as to af&rm that to be true which he knows to be false (q). And, 
 says Lord Kenyon, " If a man affirms that to be true within his 
 own knowledge which he does not know to be true, this falls 
 within the notion of legal fraud. The fraud consists in asserting 
 positively his knowledge of that which he did not know " (r), So, 
 according to Maule, J., " If a man, having no knowledge whatever 
 upon the subject, takes upon himself to represent a certain state 
 of facts to exist, he does so at his peril ; and if it be done either 
 
 (o) Oreen v. Button, 2 C. M. & R. t. Hutchinson, 13 Q. B. 748. BandeUr. 
 
 », g ' Trimen, 18 C. B. 786. 
 
 (v) Smmt V Ilbery, 10 M. & W. 10. (?) Pawson > v. Watson, Cowp. 788. 
 
 Crefswell J and Wilde, C.J., Jarrett v. Pulsford v. Richards, 17 Bear, 04. 
 
 Kennedy 'e C. B. 322. Erie, J., JenUna (r) Haycraft v. Creasy, 2 East, 103, 
 
838 FEAUD AND DECEIT. [CHAP. XVIII. 
 
 with a view to secure some benefit to himself^ or to deceive a third 
 person, lie is in law guilty of a fraud ; for he takes upon himself 
 to warrant his own belief of the truth of that which he asserts. 
 Although the person making the representation may have no 
 knowledge of its falsehood, the representation may, nevertheless, 
 have been fraudtdently made " (s). 
 
 Statements and representations which must he authenticated ly a 
 signed writing — False representations concerning the conduct, credit, 
 aMlity, trade, or dealings of third persons.— '&j 9 Greo. 4, c. 14, s. 6, 
 it is enacted, that no action shall be brought to charge any person^ 
 upon, or by reason of, any representation or assurance made or 
 given concerning or relating to the conduct, credit, ability, trade, or 
 dealings of any other person, to the intent or purpose that such 
 other person may obtain credit, money, or goods, unless such repre- 
 sentation or assurance be made in writing, signed by the party to 
 be charged therewith. A representation to be within the Act, must 
 be of the third person's trustworthiness, as evidenced by his 
 character, conduct, ability, credit, trade, or dealings, with intent 
 that he may obtain personal credit on the faith of such representa- 
 tion (f). Any representation that a person may be trusted, consti- 
 tutes a representation as to his credit and ability (m). If the 
 representation is in writing, and signed by the defendant pursuant 
 to the statute, and the defendant at the time he makes the repre- 
 sentation knows that it is untrue, he will be responsible in damages 
 in an action; for deceit, if the plaintiff has been induced to give 
 credit on the faith of it (x), although he has not relied altogether on 
 the writing, but has trusted partly to the writing and partly to 
 subsequent oral representations {y). 
 
 Where the defendant's son, being about to open a shop, applied 
 to the plaintiffs for a supply of goods upon credit, stating that he 
 had a capital of 300Z. to begin with, and referred them to his father, 
 the defendant, for a corroboration of his statement, and the plaintiffs 
 wrote to the father inquiring whether the son had, as he asserted, 
 300Z. capital his own property, and the defendant wrote in reply 
 that he had, whereas the defendant knew that his son had nothing 
 but borrowed capital, it was held that this was a fraudulent misre- 
 presentation, for which the defendant was liable in damages to the 
 plaintiffs in an action for deceit (z). Eut if the person makes the 
 representation in good faith, honestly believing it to be true, and 
 
 («) Evans v. Edmonds, 13 0. B. 786.- (u) Swann v. Phmip!, 8 'Ad. & E. 
 Milne T. Marwood, 21 Law J., C. P. 37. 461. 
 
 («) Ab to representations of the ability {x) PasUy t. Freeman, 3 T. E. 51. 
 
 irf parties, see Lyde v. Ba/rmwd, 1 M> & Foster T. Cliarlei, 6 Bin?. 400 ; 7 Bins. 
 \{.Wl,aXLA Ha/rmwr V.Alexander, i B. : 107. '0,5 
 
 & P. N.B,. 241, decided before tlie passing {g) Tatton t. Wade, 18 C. B. 371. 
 of the statute, Wade v. Tatton, 25 Law J., C. P. 242. 
 
 (s) Gorlett t. Brmn, 8 Bing. 33. 
 I 
 
SECT. 1.] MISEEPilESENTATION IJY DIRECTORS, ETC. 839 
 
 has reasonable ground for Bs belief, he is not then responsible if 
 he is altogether mistaken, and formed a wrong judgment in the 
 matter, whatever damage may have resulted to the plaintiff there- 
 from (a). 
 
 Representations concerning the character, credit, trade, or dealings 
 of co-partnerships and joint-stock companies — Authentication thereof 
 hy a signed writing. — A representation by one of several partners 
 as to the trustworthiness of the firm, is a representation as to the 
 credit of another person within the statute. It is not the less a 
 representation of the solvency of the other partners that it includes 
 himself (6). The word "person " is of extensive signification, and 
 is applicable to a corporation sole or aggregate, as well as to a 
 private individual (c) ; so that representations by one member of a 
 company as to the circumstances, credit, and condition of the com- 
 pany, in order to induce another to lend his money, or subscribe, 
 or take shares in the undertaking, must be authenticated by a 
 signed writing, in order to be made the foundation of an action for 
 deceit (d). 
 
 Misrepresentation hy directors and offlcers of public companies — 
 Publication of deceitful prospectuses and reports. — Where a defendant, 
 knowing that a joint-stock company, of which he was a promoter 
 and director, was a bubble company, and that no bond-fide dividend 
 could be paid upon the shares, frudtdently pretended by a signed 
 writing to guarantee the bearers of shares a minimum annual divi- 
 dend of 33 per cent, to induce persons to purchase shares> and the 
 plaintiff, by reason of this representation, purchased shares, and lost 
 his money, it was held that the defendant was responsible in 
 damages to the plaintiff 'in an action for deceit (e). And where the 
 defendant, a director of a joint-stock bank, sanctioned the publica- 
 tion of a report, with his signature attached thereto, professing to 
 set forth the state and condition of the bank, and representing that 
 a particular dividend had been fairly earned, and was properly 
 payable out of profits, and the report was publicly sold, and the 
 plaintiff purchased a copy of it, and read it, and bought shares in 
 the bank, relying on its correctness, and the bank was proved to be 
 insolvent to the knowledge of the defendant, at the time he 
 sanctioned the publication of the report, and the plaintiff lost his 
 money, and incurred serious liabilities, it was held that he was 
 entitled to maintain an action against the defendant for damages (/) 
 
 (a) Haycraftx. Creasy, 2 Bast, 105. tions of the condition of trading com- 
 
 (6) Devaux v. StemkeOer, 6 B. N. C. panies, see Wontner t. Sliai/rp, i C. B. 
 
 89. 439. Watson v. JEarl OJlarlenlortt, 12 
 
 (c) Boyd Y. Croydon MaU. Co., 4 B. N. Q. B. 856. 
 
 C. 669. («) Gerha/rd v. Bates, 2 BU. & Bl. 490. 
 
 (d) As to the recovery of money pSid (/) Scott y. Dixon, 29 Law J., Q. B. 
 on the strength of fraudulent representa- 62, n. Bedford v. Bagshaw, 4 H. & N. 
 
840 PEAUD AND DECEIT. [CHAP. XVIII. . 
 
 If, therefore, directors of public companies authorize the 
 publication and cu'culation of prospectuses and advei-tisements 
 concerning the transactions and monetary affairs of the company, 
 coiitaining statements, with their signatures annexed thereto, which 
 are false, to the knowledge of the directors, or whi6h the directors, 
 from their position and means of knowledge, may fairly be taken 
 to warrant as true {g), or if, on the formation of the company, they 
 conceal a material fact, they will be personally responsible, both at 
 law and in equity, to parties who have taken shares, and invested 
 money in the company, on the faith of those prospectuses, and have 
 sustained damage in consequence thereof (A). But the person 
 defrauded would not, it seems, in such a case, be entitled to sue 
 the company for the deceit {€). So, if the officers of the company 
 ■knowingly and fraudulently aid in the concoction of false and 
 deceitful reports, to induce persons, to invest in the company, and 
 investments are made and losses sustained by persons who have 
 acted on the faith of such reports, the officers so acting wiU be 
 responsible to the parties they have defrauded Qc). 
 
 Directors and officers so acting may also be punished for a mis- 
 demeanour or fined, &c. (Q. These statutes, however, do not in any- 
 wise interfere with the civil remedy by way of action against any 
 such director, manager, or officer, for damages for fraud and deceit ; 
 the rule requiring parties to proceed for the criminal offence before 
 they pursue their civil remedy applying only, as we have seen, to 
 felonies (m). 
 
 To support the action, the plaintiff must prove that he acted 
 on the faith of the representation, and sustained actual pecuniary 
 damage in consequence thereof (w), and that the statements were 
 false, not highly coloured merely (o). But it is no answer that the 
 plaintiff might have ascertained the truth by proper inquiry (p), 
 
 548 5 29 Law J., Exch. 59. Barry v. (k) CuUen v. Thompson, 6 Law T. R., 
 
 Crotkey, amte, p. 835. Staimhack v. Pern- N. S. 870. 
 
 Uy, 9 Sim. 566. (I) 24 & 25 Vict. c. 96, s. 84 ; 31 & 
 
 (g-) Ante, p. 837. TwyUr v. Asheton, 32 Vict. c. 119, s. 5 ; 33 & 34 Vict. c. 61, 
 
 11 M. & W. 415. New Brwnsmck, &c., s. 19 ; 34 & 35 Vict. c. 78, s. 10. 
 
 ^ml. Cq. t. Conyhewre, 31 Law J., Ch. (m) Ante, p. 33. 
 
 297. T}i£ same v. Muggeridge, 30 ib. 242 ; (») Eagtwood v. Bain, 28 Law J.. E.xch. 
 
 . 1 Dr. & Sm. 363. Smith's case, L. E., 2 74. 
 
 Ch. App. 604. (o) See Dentrni t. Macneil, L. E. 2 
 
 (h) Clarke y. Ihxon, 28 Law J., C. ?. Eq. Ca. 352. 
 
 225 ; 6 C. B., N. S. 453. HOI v. Lane, (p) Venezuela Rail. Oo.y. Kisch, L. R, 
 
 L. R, 11 Bq. Ca. 215. Peek v. Owney, 2 H. of L. Ca. 99, in which case it was 
 
 L. K., 13 Lq. Ca. 79. Or the share- held that the statement of the capital 
 
 holderB may plead fraud in an action for of the company as 500,000?., omittine 
 
 calls. £wlch-y-plmi Mining Co. t. the fact that 50,000i. would have to be 
 
 S«fnes,h. R., 2 Exch 324 paid for the concession, was fraudulent ; 
 
 (i) Western Bank of Scotland v. Addie, and that the terms " available capital of 
 
 L. R^l So. & Div. App 158, 166, 167. the company " meant capital, exclusive 
 
 Bee MenOerson v. La£on, L. R., 6 Lq. Ca, of any borrowing powers. See also 
 
 249; mi post, p. 863, 864. Moss v. Estates Investment Co., L E 3 
 
 Eq. Ca. 122. ■' 
 
SECT. 1.] MISREPEESENTATION BY DIEECTOES, ETC. 841 
 
 or that the statements were in a sense literally true, if calculated 
 and intended to mislead, e.g., that so many shares had been already 
 subscribed for, when in fact all that had been obtained was a 
 contract to place so many {q), or that all that is stated is true, if 
 material facts have been omitted (r). The plaintiff is, however, it 
 seems, bound to make himself acquainted with the provisions of 
 the articles of association (s), if they are in existence at the time 
 of the contract {t), or within a reasonable time, i.e., semble the 
 earliest practicable time, after they are in existence (u). Although, 
 however, he may thus sue the directors for fraudulent misrepre- 
 sentation, or plead fraud to an action for calls brought by the 
 company, or within a reasonable time («) rescind and be relieved 
 from the contract on the ground of fraud {y), he wOl stiQ be liable 
 as a contributory, in case the company winds up {z), so far as his 
 original contract extends (a), unless it was annulled on the ground 
 of misrepresentation or otherwise before the commencement of the 
 winding up (&). 
 
 It is no answer by the directors to an injunction to restrain an 
 action for calls that they believed the statements, and were them- 
 selves deceived (c) ; and it is sufficient to show that there was a 
 fraudulent misrepresentation as to any part of the consideration 
 that induced the defendant to enter into the contract. But a mere 
 innocent misrepresentation, tonA fide made, and on reasonable and 
 probable ground, is not sufficient, unless it goes to the root of the 
 matter, and makes the shares he has got something totally different 
 from what he contracted to get (d). And a misrepresentation of 
 law, e.g., that a company is legally competent to issue certain 
 securities, made to an intending lender, but which turns out to be 
 incorrect, will not entitle the lender to relief on the ground of 
 misrepresentation (e). 
 
 The representations of a director or manager, or a clerk, are 
 not the representations of the company, unless they are adopted 
 
 (g) Boss V. Sstatea Investment Co., M'NeiVs case, 10 iJnd. 503. 
 
 supra. (y) ^^'"^ ■^^ FftehoW, Land Co., L. K., 
 
 (r) Heyrmn v. European Central i Eq. Ca. 588. 
 
 Sail. Co., L. K., 7 Bq. Ca. 154. (s). Oakes v. Turquand, ut sup. Kent 
 
 (s) Oahes v. Turquand, L. B., 2 H. of v. Freehold Land Co., L. R., 3 Ch. App. 
 
 L. Ca. 326. Ex parte Briggs, L. K., 1 493. 
 
 Eq. Ca. 483. Be Madmd Bamk, 2 iUd., (a) Waterhouse t. Jamieson, L. E., 2 
 
 218. Scotch App. 29. 
 
 (t) Webster's case, L. E., 2 Eq. Ca. (5) Wright's case, L. K., 7 Ch. App. 
 
 741. Stewart's case, L. E., 1 Ch. App. 55. 
 
 674. EaOows y. Fernie, L. E., 3 Eq. Ca. (c) Smith v. Beese Ewer Minmg Co., 
 
 520 ; 3 Ch. App. 467. I'- '^■< 2 Eq. Ca. 264; 2 Ch. App. 604 ; 
 
 (m) Be Cachair Company, h. E., 2 Ch. 4 Eng. and Ir. App. 65. 
 
 Add 412 Be Madrid Bamk, ib. 536. (<*) Kennedy v. Pamama Steam, Co., 
 
 PeeVs case, ih. 674. L- »-. 2 Q- B. 580. 
 
 (x) See Whitehouse and Tait's cases, (e) Bashdall t. Ford, L. E., 2 Eq. Ca. 
 
 • L E. 3 Eq. Ca. 790, 795. Downes v. 750. See HaUows v. Femie, supra. 
 
 Price' L R , 3 Engl, and Ir. App. 343 ; When time is a bar ; Smallcombe's case, 
 
 Ashky's case, L. R., 9 Eq. Ca. 263. L. R., 3 Eq. Ca. 769. 
 
842 FKAUD AND DECEIT. [CHAP. XVIII. 
 
 and ratified by the shareholders at a general meeting of the 
 company (/). But the representations of the promoter may he, in 
 certain cases {g). 
 
 By the 30 & 31 Vict. c. 131, s. 38, it is enacted, that every 
 prospectus of a company, and every notice inviting persons to 
 subscribe for shares, shall specify the dates and names of any 
 contract entered into by the company, or by the promoters, 
 directors, or trustees thereof, before the issue of the prospectus, 
 whether subject to adoption by the directors or not, and that every 
 prospectus or notice not specifying the same shall be deemed 
 fraudulent on the part of the promoters, directors, or officers 
 knowingly issuing the same, as regards any person taking shares 
 in the company on the faith of the prospectus^ unless he has had 
 notice of the contract. 
 
 Fraudulent Ireach of warranty. — Whenever the representation 
 or statement amounts to a warranty of the fact stated, and is 
 untrue, it is fraudulent, in contemplation of law, whether there was 
 knowledge or want of knowledge of the untruth on the part of the 
 person making it. "If one man," observes Lord Ellenborough, 
 " luU another into security as to the goodness of a commodity he 
 offers for sale, by giving him a warranty of it, it is the same thing 
 whether or not. the seller knew it at the time to be unfit for sale : 
 the warranty is the thing which deceives the buyer who relies on 
 it, and is thereby put off his guard, and it is sufficient to prove the 
 warranty broken to establish the deceit (A). If, therefore, a watch- 
 maker warrants a watch to go well, or a horse-dealer warrants his 
 horse to be sound, or quiet and free from vice, or a wine-merchant 
 warrants his claret to be in a fit and proper state for exportation, 
 or a copper manufacturer warrants his copper to be fit for sheathing 
 vessels, and a purchaser buys upon the faith of the warranty, and 
 then finds that the watch wiE not go, or that the horse is unsound 
 or vicious, or that the claret is sour, or that the copper is unfit for 
 sheathing, this is a fraud, though neither the watchmaker, the 
 horse-dealer, nor the copper manufacturer was aware of the fact at 
 the time he gave the warranty (i). A warranty wUl not bind a 
 man in, a thing that is apparent; as to warrant that a horse has 
 both his eyes, when he is manifestly blind of one of them, or 
 that a house is in perfect repair, when it has neither roof nOr 
 windows (Jc). To warrant a thing that may be perceived at sight 
 
 (/) Royal Brit. Bamk, In re, 3 Law (i) WaUace v. Jwfnum, 2 Stark. 162. 
 
 T. R., N. S. 843 ; 9 W. E. 328. See Ve.r- Anon., LofEt, 146. Oresham t. Postan, 2 
 
 guson T. Wilson, h. E., 2 Ch. App. 77. C. & P. 540. WilUamion v. Alison, 2 
 
 {g) Soas T. Estates Investment Co., Mast, 446. Jones v. Bright, 3 M. & P. 
 
 L. E., 3 Eq. Ca. 122. S. C, 3 Ch. App. 173. 
 
 682 
 
 (k) Elans v. TrisJuim, 1 Let. 102. 
 
 (A) Williamson v. Allison, 2 East, 450. Dyer t. Hwrgrame, 10 Ves. 507, 
 
SECT. l.J BREACH OF WAEEANTY. 843 
 
 is not good (J). If, therefore, at the time of the sale of a horse the 
 animal is warranted sound, that is understood to mean, saving 
 those manifest and visible defects which are obvious to all man- 
 kind, and known to the purchaser at the time he bought the 
 animal(m). If, however, the manifest defect is not necessarily of 
 a permanent nature ; if a horse has a coug^ and running at the 
 nose, and the vendor says that it is merely a cold, and that the 
 horse will be sound and well in a given time, and the purchaser 
 buys in reliance upon the truth of the representation, the vendor, 
 as we have seen, wiU be responsible in damages if the horse 
 continues unsound and permanently diseased (n). And a pur- 
 chaser who relies upon a warranty is not bound to make any 
 particular examination of a horse before he buys, to ascertain 
 whether a defect exists. If, relying upon the warranty, he 
 neglects to make any particular examination of the animal, and 
 fails consequently to discover a defect, which might have been 
 ascertained by examination, he is, nevertheless, entitled to main- 
 tain an action for deceit (o). 
 
 The purchaser of a warranted but worthless article is entitled 
 to maintain an action for deceit, although he has stipiilated that if 
 he dislikes the article it shall be exchanged for another of the 
 same value (p). 
 
 Warranties made pending a negotiation for the sale of pro- 
 perty. — " As to selling with a warranty," observes Holt, C. J., 
 "that will be so, though the warranty be before the sale; as 
 if, 'upon a treaty about the buying of certain goods, the buyer 
 should ask the seller if he would warrant them to be of such 
 a value, and to be his own goods, and the seller should warrant 
 them, and then the buyer should demand, and the seller set the 
 price, and then the buyer should take time to consider for two or 
 three days, and then should come and give the seller his price ; 
 though the warranty here was before the sale, yet this wOl Ise well, 
 because the warranty is the ground of the treaty, and this is selling 
 with a warranty. But it is otherwise if the warranty be after the 
 Bale ; as if a man sells goods and afterwards warrants them, such 
 warranty is not good. But in the other case the warranty is part 
 of the contract {q). 
 
 Private representations made prior to a sale hy auction forming 
 no part of tie public contract of sale.— 11 what passes between a 
 
 7) BaUy v. Memll, 3 Bulstr. 95. Iron Works v. Wwhns, L. K., 4 Ch. App. 
 
 ' ft) Mwrgeeson v. Wright, 5 M. & P. 101. „ a. i i«o 
 
 ■ 7 Bine 603 (i') WaJMce v. Jwmum, 2 Stark. 162. 
 
 i') IMdaird v. Kain, 9 Moore, 356. (?) Lysney y.Sdby, 2 Ld. Kaym. 1120 ; 
 
 («') UddSrdy. Kwin, 9 Moore, 356 {q)Zysney Y.SeUy, 2 Ld. Kaym 1120; 
 
 (o) ffolvdav V. Morgmi, 1 Ell. & Ell. 1 Salk. 211. Omham v. Bmry, 15 C. B. 
 
 1-28 Law J B 9. &ee Aheramm 697 ; 24 Law J., C. P. 100. ^scoria y. 
 
 ' ' ^' Thomas, 3 Q. B. 236. 
 
844 FRAUDULENT MISEEPKESENTATION. [CHAP. XVIII. 
 
 vendor and purchaser forms no part of the negotiation ending in 
 the purchase, it cannot be treated as a warranty. Thus in the case 
 of a sale by auction, you cannot "tack on a previous private 
 communication to what is said by the auctioneer at the time of the 
 actual public sale, in order to constitute a warranty. Td permit 
 such a practice," observes Maule, J., "would be to encourage a 
 fraud upon aU others attending the sale." If, therefore, a horse is 
 advertised to be sold by auction without a warranty, and the owner 
 privately represents the horse to be sound and free from vice, to a 
 person who attends the sale, and bids for and purchases the horse in 
 reliance on the representation, the representation carmot be treated 
 as a warranty. Those who bid at a public auction, bid against 
 each other on the supposition that they aU stand upon an equal 
 footing; and if the sale is announced and conducted as a sale 
 without a warranty, and the biddings are made upon that under- 
 standing, any secret underhand bargain for a warranty would be a 
 fraud (r). 
 
 False representations amounting to a warranty hy a person of his 
 knowledge of a particular fact, where the means of knowledge lie 
 peculiarly or eaxlusively within his reach. — If the means of infor- 
 mation lie peculiarly or exclusively within reach of the person 
 making the representation, and he pretends to know the truth of 
 the matter, he must be taken to warrant his knowledge of the 
 fact, and his want of knowledge constitutes a fraud (s). Thus, a 
 jeweller or a diamond merchant, who deals in diamonds and 
 precious stones, has better means of knowing the nature and 
 quality of the stones he sells than an unskilled stranger who 
 comes to his shop to buy them. If, therefore, he represents a 
 glittering stone to be a diamond, he impliedly warrants his know- 
 ledge of the truth of his representation. His statement amounts 
 to a warranty of the fact to a purchaser, and the jeweller is 
 responsible if the stone turns out to be only a piece of crystal, 
 whether he knew the representation to be true or false (t). Where 
 the vendor of a ship published a written description of the vessel, 
 without knowing whether the description was true or false, and the 
 vessel was afloat and the huU covered with water, so that the 
 purchaser had no means of examining the huU himself, it was 
 held that the vendor must be considered to have warranted the 
 fact to be as he asserted, and that his want of knowledge con- 
 stituted a fraud, " If he made the representation," observes Lord 
 Mansfield, " not knowing at the time whether it was true or false. 
 
 (f) EopUm V. Tangneray, 15 0. B. Salmon v. Ward, 2 C. & P. .211. Lid- 
 130 ; 23 Law J., 0. P. 162. da/rd v. Kain, 9 Moore, 356. 
 
 («) Cme V. Colmam,, 3 M. & By. 4. (t) CAandetor v. iopws, 1 Smith's Lead. 
 
 Cas., 6th ed. 
 
SECT. 1,] EXPRESSION OF OPINION ONLY. 845 
 
 it is a fraud, if, in point of fact, it turns out to be false. It is 
 equally false and' fraudulent for a man to af&rm his knowledge of 
 that of which he knows nothing, as to aver that to he true which 
 he knows is not true " (u). 
 
 Mepresentations concerning matters which are obvious to ordinary 
 intelligence, and which lie as much within the knowledge of one jparty 
 as the other. — ^Where the real quality of the thing is an object of 
 sense obvious to ordinary intelligence, and the parties making and 
 receiving the representation have equal knowledge or means of 
 acquiring information, and the correctness or incorrectness of the 
 representation may be ascertained by the party interested in know- 
 ing the truth, by the exercise of ordinary inquiry and diligence, and 
 the representation is not made for the purpose of throwing the 
 latter off his guard, and preventing him from making those inqui- 
 ries and examinations which every prudent person ought to make, 
 there is no warranty of the person's knowledge of the truth of his 
 representation, or of the fact being as it is stated to be {x). In an 
 action for deceit, it appeared that the defendant having a load of 
 wood to be carried, came to the plaintiff, who was a carrier, and 
 bargained with him for the carriage of it at 2s. a hundredweight, 
 representing that there were eight hundredweight ; whereupon the 
 plaintiff, relying upon the representation, caused the wood to be 
 put into his cart and carried, but finding that he had got an over- 
 powering load, and having killed two of his horses in dragging it 
 along, he caused the wood to be weighed, when he found the weight 
 to be twenty hundredweight ; and thereupon he brought an action 
 to recover compensation for the damage he had sustained by reason 
 of the deceit ; but it was held that the action was not maintainable, 
 as it was his own fault not to have weighed the wood before he 
 put it into his cart. " There is a difference," observes Dodderidge, 
 J., " where the carrier is absent and where he is present ; for where 
 the carrier is there present, it is very easy for him to see the dif- 
 ference between 800 and 2000 weight" {y). 
 
 Bepresentations arfu>unting merely to expressions of opinion andle- 
 
 lief, ^When the representation is made concerning somethiag which 
 
 is mere matter of opinion, which every man can exercise his own 
 judgment.upon and inquire about, it is the plaintiff's own fault if 
 he suffers himself to be deceived. If the person giving his opinion, 
 or expressing his belief, does not possess any exclusive means of 
 knowledge, and merely says that wliich he thinks to be true, there 
 is no fraud however erroneous may be the statement he has made. 
 
 (li) Schneider v. ffeath, 3 Campb. 508. (m) Claphcm v.- Smito, 7 Beav. 150. 
 
 Pawsmy. Watson, Coyr^. 788. Adam- Scott v. Sanson, 1 Sim. li^ 
 son V. farm, i Bing. 73. V) Smlg v. Merrell, 3 Bulstr, 93. See 
 
 Sdway v, Fogg, amtf, p, 835. 
 
846 FRAUDULENT MISREPRESENTATION, [CHAP. XVIII. 
 
 If, therefore, a defendant having reason to believe, and actually 
 believing, a particular fact to be true, has represented it as such to 
 the plaintiff, he is not, as we have seen, liable to an action merely 
 because it turns out that he was mistaken, and that his representa- 
 tion was false (z). The credit to which a man is , entitled in the 
 commercial world, is a matter which does not lie exclusively within 
 the knowledge of any one person. It is to a great extent matter of 
 judgment and opinion, on which different men will form different 
 opinions, and if a man in answer to inquiries respecting the 
 solvency or credit of a particular individual, or of a partnership, 
 or joint-stock company, does no more than state his own honest 
 opinion, believing what he says to be true, he is not responsible 
 for the correctness of the opinion, and does not warrant the fact to 
 be as represented by him (a). 
 
 Statements m anmver to inquiries — Information to sheriffs and 
 public officers. — If a sheriff, about to seize the goods or the person of 
 a debtor- under a writ of execution, makes inquiry of another as to 
 whether certain goods do or do not belong to the debtor, or as 
 to the identity of the person of the debtor, and the person applied 
 to for information does no more than represent what he believes to 
 be true, he is not responsible in an action for deceit, if the informa- 
 tion he gives turns out to be false, and the sheriff who has acted 
 upon it believing it to be true has been dampified ; but if a person 
 oflBiciously interferes and gives directions to the sheriff, he may make 
 himself responsible for trespasses committed by the sheriff whilst 
 acting in obedience to those directions, and may become liable to 
 make good any damages which the sheriff himself has been obliged 
 to pay in consequence of his having obeyed such directions (&) ; but 
 it has been held that a mere indication of the defendant's place of 
 residence, indorsed on the back of a writ of ff,. fa. by the attorney 
 of the plaintiff, for the purpose of affording the sheriff information, 
 is not a direction to execute a writ against the person pointed out, 
 so as to render the attorney responsible if the indorsement should 
 turn out to be incorrect, and to relieve the sheriff from the respon- 
 sibilty of making inquiry, and acting in the matter upon his own 
 responsibility (c). 
 
 Warranties ly vendors on sales of real profS/rty. — If, pending a 
 negotiation for the sale of real property, the vendor affirms the rents 
 to be more than they really are, and the peTson to whom the affir- 
 mation is made relies upon it and purchases the property, the 
 vendor is liable to an action for deceit whether he knew or did not 
 
 (z) CoUins T. miam, 5 Q. B. 826. (6) CoUins v. Mvani, 5 Q. B. 830. See 
 
 ChUden v. WooUr, 29 Law J., Q. B. 136. ante, pp. 694, 595. 
 Jiashddl V. Ford, ante, p. 841. (c) OhOders v. Wooler, 29 Law J 
 
 (ffl) Haycmft v. Creaiy, 2 East, 105. Q. B. 129 ; diss. Wightman, J., Cromhaw 
 
 T. Chapman, ante, p. 671. 
 
SECT. 1.] OF TITLE, ETC. 847 
 
 know of the falseness of the affirmation at the time it was made, 
 and although a conveyance is subsequently executed which con- 
 tains no notice of any such affirmation. A representation of this 
 sort has heen held to amount to a warranty of the fact, on the 
 ground that the vendor had better means of knowledge than the 
 purchaser, who relied upon the truth of the statement and was 
 deceived by it ; " for," says Gould, J., " the value of the rents was 
 a thing hard to be known, and secret, known to none but the land- 
 lord and his tenants, and they might be in confederacy together." 
 " If," observes Holt, C. J., "the vendor gives in a particular of the 
 rents, and the vendee says he wiU. trust him and inquire no further, 
 but rely upon his particular, there, if the particular be false, an 
 action will lie ; but if the vendee wiU go and inquire further what 
 the rents are, there it seems unreasonable he should have an action, 
 though the particular be false, because he did not rely upon the 
 particular" (d). And even if the rent stated is literally true, but 
 the fact is that the property had been only let for one year at the 
 rent stated, which was far above its value, so that the statement is 
 calculated to mislead, the vendee is entitled to be relieved in equity 
 from his purchase (e). On the other hand, a statement which is 
 not literally true, but which does not substantially mislead, is not 
 ground for annulling a contract ; as where a vendor of a leasehold 
 house stated himself as a lessee for twenty-four years, whereas he 
 was an under-lessee for that period, less three days (/). 
 
 Where the vendor of a public-house made, pending the treaty 
 for the sale of the house, sundry false representations to the plain- 
 tiff concerning the amount of business done in the house, and 
 the rent received for part of the premises, whereby the plaintiff 
 was induced to give a larger sum than he would otherwise have 
 given for the property, it was held that the plaintiff was entitled 
 to maintaiii an action against the defendant for the deceit {g). 
 
 False representations of title iy vendors of corporeal and incor- 
 poreal hereditaments — Representations not amounting to a warranty. — 
 Eepresentations and assertions of title by a vendor of real property, 
 where the title-deeds are submitted to the inspection of the pur- 
 chaser, who exercises his own or such other judgment as he con- 
 fides in on the goodness of the title, amount only to expressions of 
 opinion and belief, and cannot be treated as a warranty (h). Every 
 prudent purchaser of real property looks into the title of the 
 
 (d) Lymey v. SeWy, 2 Ld. Eaym. 1120. App. ] 02. See Aberamm Iron WorJcs v. 
 
 Ekins T. Tresham, 1 Lev. 102. See Bos Wivhens, h. K., 4 Ch. App. 101. 
 
 T. Helsham, L. K., 2 Exch. 72. (g) DobM v. Stevens, 3 B. & 0. 623. 
 
 (c) Dimmoch T. HaUett, L. B., 2 Ch. Canh/m v. Barry, 15 C. B. 597. 
 
 App. 21. (^) Soswell V. Vaughwn, Ovo. Jac. 196. 
 
 (/) DuddeU v. Simpson, L. B.., 2 Ch. See ITume v. Pococh L. E., 1 Ch. App. 
 
 u7y» 
 
848 FRAUDULENT MISEEPKESENTATION. [CHAP. XVIII. 
 
 vendor before he accepts a conveyance and pays the purchase- 
 money, and he has a right to have a covenant for title on the part 
 of the vendor inserted in the deed of conveyance ; and if he waives 
 his right of examination and approval of the title, and does not 
 think fit to require any covenant for title on the part of the vendor, 
 he must be presumed to have been content to take whatever estate 
 or interest in the land the vendor might chance to possess, and 
 when the vendor's title, such as it is, is actually conveyed to him, 
 the rule of caveat emptor applies (i). But if a representation as to 
 title was false, to the knowledge of the person making it, and was 
 made for the purpose of preventing, inquiry and covering a fraud, 
 then it may be made the foundation of an action for deceit, although 
 the party receiving and acting upon the representation had accepted 
 a conveyance, without requiring any covenant for title (/<;). 
 
 Bepresentation of title on sales of chattels amounting to a war- 
 ranty. — " Where one having the possession of any personal chattel 
 seUs it, the bare affii-ming it to be his," observes Holt, C.J., 
 " amounts to a warranty, and an action lies on the affirmation ; for 
 his having possession is a colour of title, and perhaps no other title 
 could be made ; aliter where the seller is out of possession, for 
 there may be room to question the seller's title, and caveat emptor 
 in such a case to have either an express warranty or a good title " (l). 
 Mr. Justice BuHer, however, has disclaimed any distinction between 
 the vendor's being in or out of possession, treating the afOrmation 
 as equivalent to a warranty in both cases (m), the true principle 
 being, " that he who affirms either what he does not know to be 
 true, or knows to be false, to another's prejudice and his own gain, 
 is both in morality and law guilty of falsehood, and must answer 
 in damages " {n). In the ordinary case of a sale of goods in a shop 
 the seller does in effect warrant that the goods are his own, and is 
 liable if they are not (o). However, if a man does not seU as 
 owner, but in some special character or capacity, such as sheriff or 
 pawnbroker, and does not make any representation as to title, he 
 is presumed to sell only such a title as he actually possesses {p). 
 Where the defendant sold a boiler (affixed to a house, but re- 
 movable piecemeal without injury), which had been distrained for 
 a poor-rate, and which he had bought at the auction, to the plaintiff, 
 explaining to him at the same time the circumstances, it was held 
 
 (i) Bree v. Holbeeh, 2 Doug. 655 ; Ld. (m) Pasley v. Freeman, 3 T. E. 58. 
 
 Alvanley, 0. J., in Johnson v. Johnson, (n) Per Best, C.J., Adamson v. Jarvis, 
 
 3B.&P. 170. Duhey. Bamett, 2 Coil i 'Bing. 73. Fwmis v. Leicester, Cm. Sa.a. 
 
 Ch. C. 337. Maynard t. Moseley, 3 474 ; 1 Roll. Abr. 90, pi. 6. 
 Swanst. 655. (o) Eicholz v. Bammskr, 34 Law J., 
 
 (Jc) See per Turner, L. J., in Eume y. C. P. 105. 
 Pocock, L. K. 1 Cai. App. 385. (p) Oha^pman^. Speller, 14 Q. B. 624. 
 
 (I) Medma t. Stov^Mon, 1 Salk. 210, Morley v, At(eniorough, 3 Esch, 500. 
 Crossf V. Gardner, Carth. 90, 
 
SECT. 1.] BREACH OF WAKKANTY. 849 
 
 that the plaintiff (who had beeu prevented by the mortgagees of 
 the house from removing it) could not sue the defendant on a war- 
 ranty of title, or upon an implied undertaldng that he should be 
 permitted to remove it {q). 
 
 False representatims ly manufacturers of .the charaeter and 
 quality of the articles they manufacture and sell.—Th.Q manfacturer 
 of an article has siiperior means of information as to the nature 
 and quality of the article he makes than a stranger not engaged 
 in the manufacture. If, therefore, he represents the article he 
 makes to be of some superior or peculiar quality, or to be fit for 
 some particular purpose, in order to recommend it to a purchaser, 
 his representation amounts to a warranty of the fact. " It is not 
 necessary," observes Best, C.J., "that the seller should say, 'I 
 warrant ;' it is sufficient if he says that' the article he seUs is 
 of a particular quality, or fit for a particular specified purpose." 
 Where, therefore, the plaintiff, a shipowner, on being introduced to 
 the defendant, a copper manufacturer, stated that he wanted some 
 copper for sheathing a vessel, and the defendant said, " We will 
 supply you well," whereupon the plaintiff gave an order for some 
 copper, it was held that this amounted to a warranty on the part 
 of the copper manufacturer that the copper he supplied to the 
 plaintiff in execution of the order should be fit for sheathing 
 vessels, and that he was responsible in an action for deceit for 
 furnishing defective copper unfit for that purpose. This tends to 
 protect the purchaser, who is necessarily ignorant of the nature of 
 the article sold, from imposition, whilst the person who manu- 
 factures it must, or ought to, know its particular virtues and 
 qualities (r). But when the purchase is of a well-known ascer- 
 tained article, and the manufacturer represents that it is fit for 
 the purpose for which it is made, and for which it is generally 
 used, there is no warranty on the part of the vendor that it is fit 
 for any peculiar or special purpose for which the , purchaser 
 requires it (s). 
 
 A person who receives the order and gets the article made is 
 as much the manufacturer of it as the person who actually makes 
 
 it(0. 
 
 Eepresentations hy. a vendor who is told that the purchaser iuants 
 the article he proposes to huy for a particular purpose. — If a 
 stranger goes to a shop and tells the shopkeeper that he wants an 
 article fit for a particular specified purpose, and it is the clear 
 
 (g) BagueUy v. Hawley, L. R, 2 C. P. (s) Chanter v. Hophms, 4 M. AW. 
 
 625. 399. Camac v. Warriner, 1 C. B. 367. 
 
 (»•) Jones V. Bright, 3 M. & P. 174; 5 (t) Brown v. Edgington, 2 M. & Gr. 
 
 Bine. 533. ' 279. Addison ofi Contracts, 6tli gij., 
 
 . . p. 213. 
 
850 FRAUDULENT MISREPRESENTATION. [CHAP. XVIII. 
 
 understanding of the parties that the purchaser relies upon the 
 skill and judgment of the shopkeeper for the supply of an article 
 fit for the purpose specified, there is an implied warranty on the 
 part of the shopkeeper that the article he furnishes is reasonably 
 fit for that purpose. "It appears to me/' observes Tindal, C.J., 
 "to be a distinction well founded, both on reason and on 
 authority, that if a party purchases an article upon his own 
 judgment, he cannot afterwards hold the vendor responsible, on 
 the ground that the article turns out to be unfit for the purpose 
 for which it was required ; but if he relies upon the judgment of 
 the seller, and informs him of the use to which the article is to be 
 applied, it seems to me the transaction carries with it an implied 
 warranty that the thing furnished shall be fit and proper for the 
 purpose for which it was designed " (m). 
 
 False representations hy mndoi's, inade to absent purchasers 
 amounting to a warranty. — Wherever the purchaser has no 
 opportunity of inspecting the commodity he buys, the rule of 
 caveat emptor does not apply. Every representation, therefore, 
 made by a vendor to an absent purchaser, as to the quality or 
 fineness of the article he offers for sale, amounts to a warranty of 
 the fact to such absent purchaser, who has no means of judging 
 for himself, but reHes exclusively on the judgment and good faith 
 of the vendor (a;). If a purchaser orders a particular article to be 
 forwarded to his agent abroad for a foreign market, and the vendor 
 executes the order, and pretends or represents, that he has sold the 
 particular article required, and the purchaser has had no oppor- 
 tunity of inspection or examination, the representation of the 
 vendor amounts to a warranty of the fact {jj). If an article, 
 represented to be of a particular or peculiar quality, turns out to 
 be of a substantially different or inferior quality, it does not accord 
 with the representation, and damages are therefore recoverable {i). 
 " A seller," observes Lord EUenborough, " is unquestionably liable 
 to an action for deceit if he fraudulently misrepresent the quality 
 of the thing sold to be other than it is in some particulars which 
 the buyer has not equal means with himself of knowing, or if he 
 do so, in such a manner as to induce the buyer to forbear from 
 making the inquiries, which, for his own security and advantage, 
 he would otherwise have made " (a). 
 
 False representations hy vendors where the purchaser has means 
 of examination and judgment — Sale of goods hy sample. — ^Whenever 
 the vendor is not himself the manufacturer of the goods he sells, 
 
 (u) Tindal, C.J., in Brown v. Edging- {y) Bridge v. Wain, 1 Stark. 604. 
 
 ton, 2 M. & ar. 289. See Walker v. {z) Wider v. Schiliezi, 25 Law J ., G. F. 
 
 Milner, 4 F. & F. 745. 90. ' 
 
 {x) Ld. EUeiborougli, C.J., in Ga/rdi- (a) Vernon v. Kei/s, 12 East, 637. 
 
 ner v. Gray, 4 Camjib. 145, 
 
SECT. 1.] SALE BY SAMPLE. 851 
 
 and the purchaser is afforded the means of inspection and exami- 
 nation, and of forming his own judgment of their quality, the 
 representations made hy the vendor of the quality of the goods 
 amount merely to assertions of his own opinion and belief, and 
 not to a warranty. If, therefore, the representation is honestly 
 made, and is believed at the time to be true by the person making 
 it, it does not constitute a fraud in law, though it was not true in 
 point of fact. The rule of caveat emptor applies, and the represen- 
 tation does not furnish a ground of action (6). 
 
 Every person who exhibits a sample of goods for sale, impliedly 
 represents ot warrants that the sample has been fairly taken from 
 the bulk of the commodity, and he does no more than this. The 
 purchaser takes the risk of all latent defects and infirmities 
 inherent in the article, and unknown to the seller, whether they 
 arise from natural causes or fraudulent dealings with the goods by 
 persons through whose hands they have passed. Thus, where the 
 plaintiff bought hops (c) of the defendant, whom he knew not to be 
 the grower, by samples taken from the pockets in which the 
 commodity was closely packed, and at the time of the sale the 
 samples answered fairly to the commodity in bulk, and no defect 
 was perceptible at the time to the buyer; but, owing to the 
 grower of the hops having fraudulently watered them after they 
 were dried, to increase their weight, they gradually deteriorated in 
 quality, and became utterly u.nsaleable shortly afterwards, it was 
 held that the defendant, who had fairly drawn and exhibited the 
 samples, and was whoUy ignorant of the fraud at the time of the 
 sale, was not responsible for the latent defect afterwards discovered 
 in the hops, although it rendered them unmerchantable, and of no 
 value in the hands of the buyer. Here the vendor and purchaser 
 had both equal means of knowledge. Both examined the sample, 
 and neither of them discovered, or had the least idea of, the defect 
 which was afterwards disclosed by the gradual process of heating. 
 The maxim of caveat emptor, therefore, applied (d). 
 
 So, where cotton had been fraudulently packed in America, the 
 interior of the bales being filled with bad, unmerchantable cotton, 
 and the outer part of the bales, from whence the samples would be 
 taken, with cotton of superior quality, and the cotton so falsely 
 packed was consigned to a Liverpool merchant, who drew samples 
 in the ordinary way, and exhibited them to the plaintiff, who 
 purchased and received forty-five of the bales, and then brought 
 his action against the defendant for the deceit, it was held that 
 the action was not maintainable, unless the jury could see grounds 
 
 (6) OrmroA r. Euth, U M. & W. 664. p. 856. r o i? * ^on 
 
 (c See 29 & 30 Viot. o. 37 , post, (d) Parhtmon v. iee, 2 Bast, 320. 
 
 I I I 2 
 
852 FRAUDULENT MISEEPEBSENTATION [CHAP. XVIII. 
 
 for inferring that the defendants or their brokers were acquainted 
 with the fraud that had been practised in the packing of the bales, 
 or had themselves acted in the matter against good faith, or with 
 some fraudulent purpose (e). And, generally, if it be understood 
 that there is to be a purchase of the article shown by sample, and 
 the salnple is fairly taken from the bulk, there is no misrepresen- 
 tation or deceit, although the vendor may have given an incorrect 
 description of the age or quality of the article, provided the 
 description was honestly given in full belief of its truth (/). A 
 sale, however, by sample of goods to order includes a warranty of 
 merchantable quality as to all matters th^t cannot be j^udged of by 
 the sample {g). 
 
 False representations hy raihvay companies amounting to a 
 warranty. — It has been held that railway companies mitst be 
 taken to warrant the truth of the representations made by them 
 in their published time-tables, as to the time of the starting of 
 their trains, so that if the representation is untrue, it is what the 
 law calls a fraudulent representation, and may be made the founda- 
 tion of an action of deceit by any person who has relied upon 
 the representation, and has sustained damage in consequence 
 thereof (K). 
 
 False representation 0/ authority (i) — Pretended agency — Deceit 
 hy agents. — If the vendor of goods afiirm that the goods he sells 
 are the goods of a stranger, his friend, and that he had authority 
 from him to sell them, and upon that B buys 'them, when, in 
 truth, they are the goods of another, yet if he sell them falsely 
 and fraudulently on this pretence of authority, though he do not 
 warrant them, and though it be not averred that he sold them, 
 knowing them to be the goods of the stranger, yet B shall have 
 an action for this deceit (7c). If an agent, who has no authority 
 to make a contract in the name of his principal, and knows it, 
 nevertheless makes the contract as having such authority, he is 
 responsible in an action for deceit, for he induces the other party to 
 enter into the contract on what amounts to a misrepresentation of 
 a fact peculiarly within his own knowledge ; and it is but just that 
 he who does so should be considered as holding himself out as one 
 having competent authority to contract, and as guaranteeing the 
 consequences arising from any want of such authority. "Where, 
 also, a party making a contract, as agent, hand fide believes that he 
 has authority, but has, in fact, no authority, he is still personally 
 
 (e) Ormrod t. Huth, 14 M. & W. 663. 5 Ell. & Bl. 867 ; 25 Law J., Q. B. 129. 
 
 (/) CturUr V. Crick, 4 H. & N. 412 ; 28 (i) Mere excess of authority does not 
 
 Law J., Exch. 238. constitute equitable fraud. Stewart v. 
 
 ig) Modyv. ffregrson, L. R., 4 Excli. 49 ; Auitim, L. E., 3 Eq. Ca. 299. Shim v. 
 
 38 Law J., Exch. 12. CrossUU, L. K., 10 Eq. Ca. 82. 
 
 (h) Denton v. Great Northern Rml. Co., {h) 1 Boll. Abr. 91, pi. 7. 
 
SECT. 1.] OF AUTHORITY— DECEIT BY AGENTS. 853 
 
 liable. It is a wrong, differing only in degree, but not in its 
 essence, from the former case, to state as true what the individual 
 making such statement does not know to be true, even though 
 he does not know it to be false, but believes, without sufficient 
 grounds, that the statement will ultimately turn out to be correct ; 
 and if that wrong produces injury to a third person, who is wholly 
 ignorant of the grounds on which such belief of the supposed 
 agent is founded, and who has relied on the correctness of the 
 assertion, it is equally just that he who makes the assertion should 
 be personally liable for its consequences (I). " One person may," 
 observes Erie, J., " assert he has authority to, make a contract on 
 behalf of another, and land fide believe it, and yet it may be deceit 
 if he makes the positive assertion without disclosing the grounds 
 on which he erroneously, as it turns out, believes it " (m). 
 
 Where, therefore, the defendant represented himself to be the 
 agent of one Gardner, and as such authorized to let an estate to the 
 plaintiff, and the defendant had no authority to let the property, 
 although he believed that he had, and in consequence of that mis- 
 take the plaintiff was induced to lay out money upon the estate, 
 relying on the representation, it was held that the defendant was 
 liable for all the expenses incurred by the plaintiff on the strength 
 of the representation (n). " I am of opinion," observes Willes, J., 
 "that a person who induces others to contract with him as the 
 agent of a third party, by an unqualified assertion of his being 
 authorized to act as such agent, is answerable to the person who so 
 contracts for any damages he sustains by reason of the asser- 
 tion of the a)uthority being untrue. This is not the case of a 
 bare misstatement to a person not bound by any duty to give in- 
 formation. The fact that the professed agent honestly thinks that 
 he has authority affects the moral character of his act, but his moral 
 innocence, in so far as the person he has induced to contract is 
 concerned, in no way aids him, or alleviates the inconvenience and 
 damage which he sustains. If one of the two in such cases is to 
 suffer, it ought not to be the person who has been guilty of no 
 error, but he who, by an untrue assertion, believed and acted upon, 
 as he intended it should be, and touching a subject within his 
 peculiar knowledge, and as to which he gave the other party no 
 opportunity of judging for himself, has brought about the damage. 
 The obligation arising in such a case is well expressed by saying 
 that the person professing to contract as agent for another impliedly 
 
 (I) Alderson, B., Smout v. Ilbery, 10 25 Law J., C. P. 307. Richardson r. 
 
 M. & W. 9 ; PoUiiU v. Walter, 8 B. & Dunn, 8 C. B., N. S. 655 ; 30 Law J., 
 
 Ad. 114. C. P. 44. 
 
 (m) Jenkins v. ffutchmson, 13 Q. B. (») CoUen v. Wright, 8 Ell. & Bl. 647 ; 
 
 748. Randeli v. Trimen, 18 C. B. 786 ; 26 Law J., Q. B. 147; 27 ib. 215. 
 
854 FEAUDULENT MISKEPKESENTATION. [CHAP. XVIII. 
 
 undertakes -witli the person who enters into snch a contract upon 
 the faith of his being duly authorized, that the authority he pro- 
 fesses to have does in point of fact exist" (o). Thus where a person 
 lent money to a huilding society, and received a receipt signed by 
 two directors, but the society had no power to borrow money, it 
 was held that, by signing the receipt, the directors in effect repre- 
 sented that they had authority to make a valid contract of loan on 
 beha;lf of the society, and that they were therefore personally liable 
 to repay the money (p). 
 
 If the authority is of a public nature, or the grounds of it are 
 known to tlie other contracting party, and the agent does no more 
 than express his own opinion and belief as to the nature and extent 
 of the authority vested in him, and manifests an intention merely 
 to bind the principal if he has power so to do, and guards himseK 
 against any positive representation of authority, he will not then be 
 responsible if it should turn out that he had not the power he was 
 supposed to possess (g). 
 
 A mistake made by an agent in describing the quantity of goods 
 he has bought for his principal, or the time of their delivery, or the 
 price to be paid for them, may render such agent liable to his 
 principal for negligence or for a breach of duty (r), but does not 
 render him liable to an action for deceit (s) ; it is otherwise, 
 however, if he knowingly makes a false representation with intent 
 to deceive his employer (i). 
 
 When a principal is responsible for the fraud of his agent.— ^ 
 Deceits and frauds practised by agents do not faU upon the 
 principal, unless the principal adopts and takes the benefit of the 
 fraudulent act with knowledge of the fraud (u), or unless the fraud 
 was committed by the agent in the transaction of the ordinary- 
 business of the principal. The general rule is, that the master is 
 answerable for every such wrong of the servant or agent as is com- 
 mitted in the course of the service, and for the master's or princi- 
 pal's benefit, though no express command' or privity by the master 
 or principal be proved (v). Thus, a trustee who employs a solicitor 
 to invest the money of the cestui que trust, is responsible if the- 
 solicitor fraudulently fabricates a surrender of copyholds by which 
 
 (o) CoUenv. WrigJa, supra. Pow v. (s) Thorn v. Bigland, 8 Exch. 729. 
 
 i>a*M,lB & S.220; 30LawJ.,Q.B.257. (t) Pewtnssv. Imtm, 6 Taunt. 622. 
 
 fi ff ^R ofr«*° V- W^«^fon Jj ^■, («)■ Addison on Contracts, Sth edit. 
 
 6 Q. B. 276. See Cherry y. CohniM Bank 617—621. Udell v. Atherton, 7 H. & N. 
 
 of Amtralasm, L. E 3 P. 0. Oa. 24. 181 ; 30 Law J., Bxeh. 337. £am, v. 
 
 Xe^her T. S^mpson, L. E., 11 Eq. Ca. Cto%, 2 Johns. & Hem. 1. NewBiuns. 
 
 (9)Macgregory. Se<dmid Dover RaU. p. 840. See Wilson v. RanUn,, L. E., 1 
 Co ,22 Law J., Q. B 69. Q. b. 162 ; audpos«, p. 862. 
 
 JMncjston, u K., 5 Engl., and Jr. App. L. E., 2 Bxoh. 269. 
 
SECT. 1.] COUNTEErEITING TEADE-MARKS. 855 
 
 the cestui que trust incurs loss (x). An exception to this rule 
 ocQurs in the case of misrepresentation by directors of public com- 
 panies, which do not render the company responsible in an action 
 of deceit as for statements made by their authorized agents (y). 
 "Where fraud has been committed, and a third person is concerned 
 who was ignorant of the fraud, such third person is innocent of the 
 fraud only so long as he does not insist upon deriviag any benefit 
 from it, but when once he takes the benefit he becomes a party to 
 the fraud " (z). See post, 862. 
 
 False assumption of authority, as between master and servant, 
 employer and employed. — Every man who employs another to do an 
 act which the employer assumes to have, and appears to have, a 
 right to authorize him to do, impliedly warrants that he has the 
 authority he pretends to have, as the means of knowledge are 
 peculiarly within his power ; and if he has no such authority he is 
 guilty of deceit, and must indemnify his servants or agents for all 
 such wrongful acts as have been done by them ia obedience to his 
 commands, and which would have been lawful if the employer had 
 the authority he pretended to have (a). If a landlord employs a 
 bailiEf, and represents that he has a right to distrain on a tenant for 
 rent, and signs a distress-warrant, and delivers it to the bailiff to be 
 executed, and it turns out that the landlord had no right to distrain, 
 and the bailiff has to pay damages for the unlawful distress, he may 
 maintain an action against the landlord for deceit, although the ^ 
 landlord made the representation believing it to be correct, and' 
 without any intention to deceive (6). 
 
 Counterfeiting trade-marlis — Fraudulent use hy one person of the 
 trade-mark of another with intent to deceive. — If a manufacturer has 
 adopted a particular mark to denote that the goods so marked were 
 made by him, and the mark has become known and understood in 
 the trade, he who uses the mark for the purpose of deceiving pur- 
 chasers and making them believe the goods to be the goods of the 
 manufacturer who has introduced the mark, is guilty of a false and 
 fraudulent representation, and if this produces damage to another, 
 the person injured is entitled to an action for the deceit (c). Where 
 " a clothier in G-loucestershire sold very good cloth, so that in 
 London if they saw any cloth of his mark they would buy it with- 
 out searching thereof; and another who made ill cloth put the 
 Gloucestershire mark upon it, and an action was brought by him who 
 bought the cloth for this deceit, it was adjudged maintainable" {d). 
 
 (as) Bostack v. Floyer, L. E., 1 Eq. {a) Best, C.J., Adwmon t. 'Jarms,i 
 
 Ca. 26. 5««0!iT. TfJWera, L. B., 12Bq. Bing. 72. 
 
 Ca. ace. (p) Ramlingsy. Bell, 1 0. B. 959. 
 
 (V) Western Bmh ofScotlmd v. Addie, (c) Oramthay v. Thompson, 4 M. ifc 6r. 
 
 ante, p. 840. 386 n. 
 
 (s) Wood, V.-C, SchoUfiddr. Templer, (d) 33 EHz. rated by Dodderidge, J., 
 
 1 Johns. 163. Cro. Jac. 471. 
 
856 FllAUDULENT MISEEPRESENTATION, [CHAP. XVIII. 
 
 The manufacturer, also, who is damnified in having goods fraudu- 
 lently palmed upon the world as goods made by him when in 
 truth they are not so, is also entitled to an action for the deceit (e). 
 He does not, in an action of this sort, claim any abstract right to 
 the exclusive use of the mark in question. He merely says that, 
 having adopted a particular mark to denote that the goods so 
 marked were made by him, and the mark having become known 
 and understood in the trade, the public were led to believe that 
 goods so marked were of his manufacture, and that the defendant 
 marked his goods with a mark resembling the plaintiff's mark with 
 a view to deceive the public to purchase the same as and for the 
 plaintiff's goods, and by reason thereof the plaintiff sustained 
 damage (/). 
 
 Warranty of the genuineness of articles with trade-marks. — By 
 25 & 26 Vict. c. 88, s. 19, it is enacted, that where any person shall 
 sell, or contract to sell, to any other person, any chattel or article 
 with any trade-mark thereon, or upon any thing together with 
 which siich chattel or article shall be sold, or contracted to be sold, 
 the sale or contract to sell shall be deemed to have been made with 
 a warranty by the vendor to the vendee, that every trade-mark 
 upon such chattel or article, or upon any such thing sold therewith 
 as aforesaid, was genuine and true, and not forged or counterfeit, 
 and not wrongfully used, unless the contrary shall be expressed in 
 some writing signed by, or on behalf of, the vendor, and delivered 
 to and accepted by the vendee. 
 
 Warranty of description as to quantity or country. — By s. 20, it 
 is further enacted, that in every case in which any person shall sell, 
 or contract to sell, to any other person, any chattel or article upon 
 which, or upon any thing together with which, such chattel or 
 article shall be sold, or contracted to be sold, any description, state- 
 ment, or other indication of or respecting the number, quantity, 
 measure, or weight of such chattel or article, or the place or country 
 in which such chattel or article shall have been made, manufac- 
 tured, or produced, the sale, or contract to sell, shall in every such 
 case be deemed to have been made with a warranty by the vendor, 
 to or with the vendee, that no such description, statement, or other 
 indication was in any material respect false or untrue, unless the 
 contrary shall be expressed in some writing signed by, or on behalf 
 of, the vendor, and delivered to and accepted by the vendee. 
 
 By the 29 & 30 Vict. c. 37, s. 18, every person who shaU sell 
 any hops in a bag or pocket, having marked thereon any name, 
 description, date, trade-mark, or symbol, intended to indicate the 
 name of the grower, the place of growth, or the year when the hops 
 
 (e) Dodderidge, J., Poph. 142, 144. (/) Modgeny. Noviill, 5 C. B. 127, 
 
SECT. 1.] BY MARRIED WOMEN, INFANTS, ETC. 857 
 
 were grown, shall be deemed to contract that the said description, 
 &c., is genuine and true, and in accordance with the provisions of 
 the Act. And by s. 19, that in case of any person acting contrary 
 to the provisions of the Act, the person aggrieved by the wrongful 
 act shall be entitled to maintain an action for damages against the 
 person doing or causing the doing of the wrongful act. 
 
 Fraitdulent assumption of the name of a hank. — Where the 
 declaration in an action against a banking corporation stated that 
 the plaintiff had established in the city of London a bank called 
 the Bank of London, and had caused that name to be affixed on the 
 offices of the bank, and had made the bank well known as the only 
 Bank of London, and that the defendant, after the plaintiff's bank 
 had been so established, and whilst it was the only bank styled the 
 Bank of London, wrongfully established another bank in the city of 
 London under the name of the Bank of London, and as representing 
 the plaintiff's bank, and under the pretence that the bank so estab- 
 lished was the plaintiff's bank, whereby the plaintiff was injured in 
 his business, &c., it was held that the declaration disclosed no cause 
 of action ; but it seems to have been thought that, if it had been 
 averred and shown that the plaintiff carried on the business of a 
 banker under the name and style of the Bank of London, and that 
 whilst he was so carrying on business the defendant came and 
 established another bank of the same name, and carried on business 
 under that name, for the purpose of making the public believe 
 that the plaintiff's business was carried on at the defendant's 
 bank, and so drew away customers from the plaintiff's bank, 
 there would have been a good cause of action {g). 
 
 Deceit hy provision-dealers in selling unwholesome food. — Every 
 dealer in provisions offered for sale as food for man, who knowingly 
 sells cornipt and unwholesome food, whereby the plaintiff is injured, 
 is liable to an action for deceit ; but he cannot be made responsible 
 in damages, unless it is shown that he sold it as sound and good 
 meat, knowing it at the time to be unsound and unfit for food {h). 
 
 False and fraudulent representations ly married women and 
 infants. — Neither a married woman nor her husband can be sued for 
 a false and fraudulent representation by such married woman that 
 she was a feme sole, whereby she induced the plaintiff to make a 
 contract with her, which he could not enforce by reason of her being 
 married {i). Nor can an infant be sued for a false and fraudulent 
 representation that he was of full age, whereby the plaintiff was 
 induced to contract with him (k). Nor for falsely affirming goods 
 
 (g) Lwwson r. Barih of London, 18 (i) Limrpool AdebpU Loan Assoc, t. 
 
 C B. 84 ■ 25 Law J., C. P. 188. Fairhurst. Wright y.Leona/rd, ante, p. 34. 
 
 Ui) Bumhy v. BoOet, 16 M. & W. 644. (h) Johnson v. Pye, 1 Sid. 268. Bart- 
 
 Bmmerton v. Matthews, 7 H. & N. 586 ; lett t. Welis, 1 B. & S. 836 ; 31 Law J.; 
 
 31 Law J., Exch. 139. Q. B. 57. Price v. ffewett, 8 Exoh. 146, 
 
858 FRAUD AND DECEIT. [CHAP. XVIII. 
 
 to be his own goods, and that he had a right to sell them, and 
 thereby inducing the plaintiff to purchase them {1). 
 
 Fraudulmt coTicealment. — A suppressio veri, or concealment of 
 the truth, will alone, in certain cases, and under certain circum- 
 stances, amount to a fraud, and give rise to an action for deceit. 
 Where on the sale of a house the seller, being conscious of a defect 
 in a main wall, plastered it up and papered it over, it was held, that 
 as the vendor had expressly concealed the defect, the purchaser 
 might recover damages in an action for deceit (w). And where on a 
 sale of goods the vendor knew that he had no title to the goods he 
 sold, and failed to disclose the fact to the purchaser, it was held that 
 the latter was entitled to maintain an action for damages " on the 
 ground that he had been deceived, and was the worse for the deceit, 
 and that he was entitled to recover to the extent to which he had 
 been damnified by the deception " (n). So, where an auctioneer sold 
 a lease which he knew to have been forfeited in consequence of a 
 breach of covenant by the lessee, and failed to disclose the forfeiture, 
 and the plaiiitiff bought the lease in ignorance of the breach of 
 covenant and forfeiture,, it was held that the auctioneer had been 
 guilty of a deceit, and was responsible in damages to the plaintiff (o). 
 
 If it is a custom of trade for a vendor of merchandise to disclose 
 particxUar defects at the time of the sale, if he is cognizant of their 
 existence, the vendor will be responsible in damages for a fraudulent 
 concealment, if, knowing of the particular defect, he fails to make 
 the customary disclosure (j)). And if the vendor is cognizant of 
 any serious secret defect materially deteriorating the value of the 
 goods in the market, and nevertheless offers them for sale at the 
 ordinary market price, and knows that the purchaser is deceived by 
 the appearance of the goods at the time of the sale, and is labouring 
 under a gross delusion respecting them, and the vendor takes no 
 trouble to rectify the mistake and disclose the real facts to the 
 purchaser, he is responsible in damages for wilful deceit (g). But 
 if the defect is patent, and can readily be discovered by proper 
 examination, and the purchaser has the means of examination at 
 hand, there is no fraudulent concealment, and the maxim of caveat 
 emptor will apply. But the vendor must in no case resort to any art 
 or contrivance to conceal a defect, for if he does he wUl be answer- 
 able, as we have just seen^ for wilful deceit. " If I sell a horse 
 that has lost an eye, no action lies against me for so doing; 
 but if I sell him with a false and counterfeit eye, there an action 
 lieth " (r). If the vendor of a glandered horse has resorted to any 
 
 II) Grove \. Nevitl, 1 Keb. 778. (o) Steiiens v. Adatimn, 2 Stark. 422, 
 
 (m) Anon, cited by Gibbs, J., Picker- (p) Jones v. Bowden, i Taunt. 846. 
 
 ing V. Dowaon, i Taimt. 785. (g) Bill v. Gra^, 1 Stark. 434. 
 
 (n) Gibbs, C. J., Peto v. Blades, 6 (r) Southerns t. Howe, 2 Koll. 5, 
 
 Taunt. 659. ' 
 
SECT. 1.] CAKEIAGB, ETC., OF DANGEROUS AETICLES. 859 
 
 doctoring or contrivance for the purpose of suppressing the marks 
 of the disease, and has thereby deceived the purchaser, the latter 
 will be entitled to recover aU the damages he has sustained by the 
 deception (s) ; but on a general sale of a horse, when there, is no 
 warranty, the rule of eamat emptor applies ; and, except there be 
 deceit, either by a fraudulent concealment or fraudulent misrepre- 
 sentation, no action for unsoundness lies by the vendee against the 
 vendor of the animal (f). 
 
 Fraudulent concealment of the dangeroiis nature of articles 
 delivered to a iailee to be warehoused or carried. — Every person who 
 conceals in boxes and packages articles known by him to be of 
 an explosive, corrosive, or combustible and dangerous nature, and 
 delivers them to another to be warehoused or carried with other 
 goods by land or by sea, and fails to disclose the dangerous nature 
 of the articles to the bailee, is guilty of a tortious act,' and is 
 responsible for all the consequences of his carelessness, unless the 
 bailee knew of the dangerous nature of the articles, and the danger 
 and risk attendant upon the receiving and dealing with them. 
 And it is no answer to aver that the articles were well known 
 in trade and commerce, and that the plaintiff knew what they 
 were, without an express averment that he knew them to be 
 dangerous (u). 
 
 "It is clearly a tortious act," observes Crompton, J., "for the 
 consequences of which shippers are responsible, to ship goods 
 apparently safe and fit to be carried, and from which the shipowner 
 is ignorant that any danger is likely to arise, without notice of such 
 goods being dangerous, if the shipper is aware of such danger. Such 
 shipment when the scienter is made out is clearly wrongful and 
 tortious ; but it does not seem that there is any authority decisive 
 on the point as to whether the shipper is liable for shippiag 
 dangerous goods without a communication of their nature, when 
 iieither he nor the shipowner are aware of the danger. It seems 
 very difficult to hold that the shipper can be liable for not commu- 
 nicating what he does not know. Lord Ellenborough's dictum (os) 
 would tend to show that knowledge of the party shipping is an 
 essential ingredient. I entertain great doubt whether either the 
 duty or the warranty extends beyond the cases where the shipper 
 has knowledge, or the means of knowledge, of the dangerous nature 
 of the goods when shipped, or where he has been guilty of some 
 negligence, as shipper, as by shipping without communicating 
 
 (g) MuUett v. Mason, L. R., 1 C. P. 149 ; 28 Law J., C. P. 63. Fwrranf v. 
 
 559 Ba/mes, 11 0. B,, N. S. 553 ; 31 Law J., 
 
 (i) Hill V. Sails, 2 H. & N. 299 ; 27 0. P. 139. 
 
 Law J., Exch. 45. (») WiUiams y. East Ind. Co., 3 East, 
 
 (u) EuUhinson v. Guim, 5 C. B., N.S. 192. 
 
860 FRAUD AND DECEIT. [CHAP. XVIII. 
 
 danger, which lie had the means of knowing, and ought to have 
 communicated" {y). 
 
 Fravdulent sales loith all faults. — A sale of a chattel to a 
 purchaser "with all faults," does not. mean that the purchaser is to 
 take with it all frauds. Such a stipulation, therefore, will not pro- 
 tect the vendor from an action for deceit, if he has resorted to any 
 artifice to conceal a defect, or has made use of any false represen- 
 tation for the purpose of lulling to sleep the vigilance of the pur- 
 chaser. Therefore, where a ship was sold, to be taken as she lay 
 with all faults, and it was proved that the vendor had used means 
 to prevent purchasers from discovering certain defects in the vessel, 
 and had also knowingly made a false representation of her condition 
 at the time of the sale, it was held by Mansfield, C. J., that although 
 the words " to be taken with all faults " were very large, and framed 
 expressly to exclude the buyer from calling upon the seller for any 
 defect in the thing sold ; yet if the seller was guilty of any positive 
 fraud in the sale, either in the making a false representation or in 
 using means to conceal a defect, the seller would be answerable in 
 damages to the buyer for the deceit (2). And where the vendor of 
 a vessel which was to be taken with all faults, represented the vessel 
 in his handbills and advertisements of the sale to have been buUt 
 in 1816, whereas she had been launched the year before, and the 
 difi'erenee of time materially affected her value, it was held that the 
 purchaser was entitled to recover damages for the deceit, notwith- 
 standing the stipulation that the vessel was to be taken with all 
 faults. " The vendor," observes Abbott, C. J., " ought either to be 
 silent or to speak the truth. In case he spoke at all, he was bound 
 to disclose the real fact " {a). " The meaning of selling with all 
 faults," observes Heath, J., " is, that the purchaser shall make use 
 of his eyes and understanding to discover what faults there are; but 
 I admit that the vendor is not to make use of any fraud or practice 
 to conceal a defect" (6). 
 
 A stipulation that the thing sold is to be taken with all faults, 
 and without allowance for any defect, error, or misdescription, will 
 protect the vendor from all unintentional mistakes, mis-statements, 
 and misdescription (c), but not from the consequences of any wilful 
 deception. 
 
 (2/) Brass V. Maitlavd, 6 Ell. & Bl. 486. (a) Fletcher v. Bowsher, 2 Stark. 565. 
 
 Gibbon y. Paynton, 4 Burr. 2298. Batson Baglehole v. Walters, 3 Campb. 154. 
 V. Donovmi, 4 B. & Aid. 33, 37. (b) Pickering v. Dowaon, 4 Taunt. 784. 
 
 («) Schneider v. Heath, 3 Campb. 507. (c) Taylor v. BuUer, 5 Exoh. 779 ; 20 
 
 Law J., Exoh. 21. 
 
SECT. 2.] KEMEDY BY ACTION— PARTIES TO SUE. 861 
 
 SECTION II. 
 
 OF ACTIONS FOR FRAUD AND DECEIT, AND THE REMEDY BY 
 INJUNCTION. 
 
 Actions for deceit — Parties to he made plaintiffs (d). — The person 
 to whom a false representation is made to be acted upon, and who 
 acts upon it, believing it to be true, and who sustains damage 
 thereby, is the party to sue for compensation ; but an action may 
 also be brought by a person to whom the representation is indirectly 
 made, as where it is made to one man in order to be communicated 
 to another. Where the father of the plaintiff told the defendant 
 that he wanted to purchase a gun for the use of the plaintiff, and the 
 defendant, in order to effect the sale, warranted the gun to have 
 been made by Nock, and that it was a safe and secure gun, and the 
 father then purchased the gun and delivered it to the plaintiff, who, 
 on the faith of the warranty, and believing it to be true, used the 
 gun, and was injured by its bursting in his hand, it was held that 
 the plaintiff was entitled to sue the defendant for damages, as there 
 was fraud, and damage the result of that fraud, not from an act 
 remote • and consequential, but from one contemplated by the 
 defendant at the time as one of its results. " We decide," observes 
 the court, " that the defendant is responsible in this case for the 
 consequences of his fraud whilst the gun was in the possession of a 
 person to whom his representation was either directly or indirectly 
 communicated, and for whose use he knew the gun was pur- 
 chased " (e). And where the defendant, in the course of a negotia- 
 tion for the sale of a public-house, made a false and fraudulent 
 representation to one Bourner as to the receipts of the house, and 
 thereby induced Bourner to agree to buy it, and Bourner being 
 unable to complete the purchase, got the plaintiff to take his con- 
 tract off his hands by repeating to him the false representation 
 made by the defendant, and the defendant then carried out the 
 bargain with the plaintiff, and took the plaintiff's money, knowing 
 that the false and fraudulent representation had been communicated 
 to the plaintiff, and that he was acting under the influence of it, it 
 was held that the plaintiff was entitled to sue the defendant for the 
 deceit, although the false representation had not been made to him 
 directly by the defendant, but through the medium of a third party. 
 
 (d) See ante, pp. 855, 856. Sail. Co., 8 Ell. & BI. 1052 ; 27 Law 
 
 (e) Langridge v. Levy, 2 M. & W. 532 ; J., Q. B. 167. Farrant v. Barnes, ante, 
 i ib. 337. Blakemore v. Brist. and Ex. p. 859. 
 
862 FEAUD AND DECEIT. [CHAP. XVIII. 
 
 ''The defendant," observes Bosauquet, J., "knowing that the 
 fraudulent representation he had made to Bourner had been com- 
 municated to the plaintiff, with whom he was about to contract, 
 and withholding an explanation or denial of Bourner's authority for 
 the communication, and suffering the plaintiff on the faith of that 
 communication to enter into the contract, was as much gniilty of a 
 deceit on the plaintiff as if he had in terms repeated the statement 
 himself" (/). 
 
 So, if the vendor of a lamp represents the lamp to be fit and 
 proper to be used, knowing that it is not, and intending it to be 
 used by the plaintiff's wife, or any particular individual, the wife, 
 joining her husband for conformity, or that individual, will be 
 entitled to an action for the deceit, upon the principle that if any 
 one knowingly tells a falsehood with intent to induce another to do 
 an act which results in his loss, he is liable to that person in an 
 action for deceit (g). 
 
 Parties to ie made defendants — Principal and agent. — If a fraudu- 
 lent act has been committed by an agent without the knowledge of 
 the principal, and the latter afterwards adopts the act, and takes 
 the benefit of the fraud, he will be responsible in damages to the 
 person who has been deceived and injured by the fraudulent act (7i). 
 But if he repudiates the transaction as soon as he becomes ac- 
 quainted with the fraud, and shuns all participation therein, he will 
 not be responsible for the fraud, if it was committed by the agent 
 without his sanction and authority, and the representation was not 
 within the scope of the ordinary authority of an. agent acting in 
 such a matter (*). Where a merchant employed a factor to sell 
 silk for him, and the factor , fraudulently sold one sort of silk for 
 another, " and the doubt was whether this deceit could charge the 
 merchant," Holt, C.J., was of opinion that the merchant was an- 
 swerable for the deceit of his factor, " though not criminaliter yet 
 civiliter; for, 'seeing somebody must be a loser by this deceit, it is 
 more reason that he that employs the deceiver should be a loser 
 than a stranger " (k). " The principal and his agent are for this 
 purpose completely identified " (I). The representation, if fraudu- 
 lently made by the agent, within the scope of his authority, will 
 bind the principal equally as if made by the principal (m). See 
 ante, p. 852. 
 
 A servant or agent of a horse-dealer employed to sell a horse 
 and receive the price, has an implied authority to warrant the 
 
 (/) Pilmore r. Hood, 5 B. N. C. 109. (h) Hern v. Nichols, 1 Salk. 289. 
 
 (g) Longmeidr. SoUidwy, 6 Exch. 766. {I) Ld. Denman, C.J., Fuller v. Wil- 
 
 See George v. Skivington, L. B., 5 son, 3 Q. B. 67. 
 
 Exch. 1. (m) Wilson v. AZZer, 3 Q. B. 1010. 
 
 {h) WiigMr. Oroohes, 1 So. N. E. 685. Tm/hr t. Orem, 8 C. & P. 319. See 
 
 (i) Grant v. Nonmy, 10 C. B. 688. Proud,footY.Montefiore,Jj.'R.,'iQ,.B.Zll. 
 Cornfoot v, Pmcl^e, 6 M> & W. 369. 
 
SECT. 2.] JOINT-STOCK COMPANIES. 863 
 
 horse (n) ; for in such a case there is an ostensible authority to do 
 that which is usual in the conduct of the business of a horse- 
 dealer (o). But a servant of a private owner, employed on a par- 
 ticular occasion to sell a horse, has no such implied authority (p) ; 
 a fortiori, therefore, a servant, who is merely employed to deliver 
 the animal to a purchaser has not (q.) If a broker who is autho- 
 rized to advertise a ship for a voyage warrants by his advertisement 
 that she shall sail with convoy, the shipowners are bound by the 
 warranty, although in giving it the broker may have exceeded his 
 authority (r). If an agent employed by the indorsees of a bill to 
 get it discounted, and not restricted as to the mode of doing it, 
 warrants the bill to be a good biU, his employers are bound by 
 the warranty (s). 
 
 Joint-stock companies. — The shareholders of a joint-stock com- 
 pany cannot be made individually responsible in damages in an 
 action for deceit, for adopting and authorizing the publication of a 
 false and fraudulent report respecting the pecuniary state and con- 
 dition of the company, unless it be proved that the report has been 
 signed by them (ante, p. 840), and was false to their knowledge at 
 the time they attached their signatures to it (t) ; but the company 
 itself may be made responsible for fraud through the medium of 
 acts done by the managers and shareholders in the management of 
 its concerns. If, with a view to raise the marketable value of the 
 shares of a tottering and insolvent company, a report, fraudulently 
 misrepresenting the real state of the concern, the real amount of 
 its assets, and of the demands upon it, is received and adopted by 
 the shareholders at a general meeting, and promulgated and pub- 
 lished to the world to induce strangers to come forward and invest 
 capital in the concern, this must be taken as between the company 
 and third persons, who receive and act upon the report to their 
 detriment, to be a representation by the company: "otherwise 
 companies of this sort would be in this extraordinary predicament 
 that they might employ, nay, must employ, agents to carry on their 
 concerns, and those agents, with the authority of the company, might 
 make representations, be they ever so false and ever so fraudulent, 
 and yet, nevertheless, the company may benefit by those misrepre- 
 sentations, without being at all liable to be told. That is your 
 
 fraud" (u). 
 
 But the representation in these cases must be within the scope 
 and authority of the person making it ; for where a representation 
 
 (n) Alexamdery. Gibson, 2 Campb. 555. (s) Penn v. Harrison, 4 T R 177. 
 
 (o)3owardr.Shewm-d,h.-R.,2C.P.US. (t) Barry v. Oroskey, 2 Johns. & H. 
 
 (p)JBradyv.Toddr9C.S.,-N.S.592; 27 , j^ ,, v, ^ 
 
 30 Law J C P 223 (") Glasgow JSatl. Jixchange Co. v. 
 
 (a) Wo'iAy'Swrford, 2 Or. & M.392. Drew, 2 Macq. 124. See, however, West. 
 
 (r) Rinquist v. DitcheU, 2 Campb. Bank of Scotland v. Addie, anlje, p 840, 
 
 556, n. 865. 
 
864 FKAUD AND DECEIT. [CHAP. XVIII. 
 
 on behaK of a public comiDany was made by the mere law agent or 
 solicitor of the company, who was acting ultra vires when he made the 
 representation, the company was held not to, be bound by his act (a;). 
 
 Of declarations for deceit. — It is not necessary, in a declaration 
 for a deceitful representation, to set out the representation in the 
 precise words in which it was made. It is enough to statethe 
 substance and effect of it {y). This is the case with declarations 
 for the assertion of a false claim of lien by the defendant upon the 
 plaintiff's goods {z) ; a false assumption of authority to accept bills 
 by procuration (a) ; a false assumption of title to goods (&) ; false 
 representations by railway companies as to the time of the starting 
 of their trains (c) ; by managing directors of joint-stock companies 
 as to the amount of dividend guaranteed to the shareholders {d) ; 
 by secretaries of insurance companies as to the management and 
 iinancial condition of the company (e) ; false representation of 
 authority to distrain (/) ; false representations that the patterns and 
 designs of silk goods had been copied from registered patterns {g) ; 
 false representations as to the character, credit, and circumstances 
 of third parties Qi) ; or of a firm or company of which the party 
 making the representation is a member {j) ; false representations 
 by agents of the sums due to them from their principals {k) ; false 
 representations of the character, quality, or make of goods through 
 the medium of counterfeit trade-marks and labels Q) ; and false 
 assumption of agency and of authority to order goods on behalf of 
 a named principal. 
 
 Declarations for a ireach of warranty on the sale of a horse set 
 forth " that the defendant, by warranting a horse to be then sound 
 and quiet to ride, sold the horse to the plaintiff, yet the said horse 
 was not then sound and quiet to ride " (m). A declaration which 
 stated, that in consideration that the plaintiff, at the request of the 
 defendant, had bought a horse of the defendant, the defendant 
 promised that the horse was sound, was held bad in arrest of 
 judgment, as setting forth a warranty after a sale, and not a sale 
 founded upon and induced by a warranty {n). 
 
 {x) Burnes v. Pennell, 2 H. L. C. 497, (i) Vevaux v. Steinheller, 8 So. 202. 
 
 cited 2Macq. Sc. A. 125. (i) Pewtriss v. Austen, 6 Taunt. 522. 
 
 (y) Gutsole v. Mathers, 1 M. & W. 503. As to declarations against persons who 
 
 (z) Green v. Button, 2 0. M. ,& E. 707. have contracted as agents without autho- 
 
 (a) PolhUlv. Walter, ZK & Ad. 114. rity, see Randett v. Trimen, 18 C. B. 
 
 (6) Dyster v. Battye, 3 B. & Aid. 448. 786 ; amte, p. 853. 
 
 (c) Demtan y. 6t. North. Bail. Co., 5 {1} Morison v. Salmon, 2 Sc. N. R. 
 Ell. & Bl. 860 ; 25 Law J., Q. B. 129. 449. Orawshay v. Thompson, 4 M. & Gr. 
 
 (d) Gerhard v. Bates, 2 BU. & Bl. 479. 357 ; 5 So. N. E. 662. Badgers T.Novnll, 
 
 (e) Pontifex, v. Bignold, 3 Sc. N. E. 390. 5 C. B. 109. Blofeld v. Payne, 4 B. & Ad. 
 (/) BamUngs r. Bett, 1 0. B. 951. 410. Syhes v. Srjkes, 3 B. & C. 541. 
 
 (ff) Ba/rley v. WaZford, 9 Q. B, 199. (m) 15 & 16 Vict. u. 76, Sehed. B. . 
 
 (It) CorbeU v. Brown, 8 Bing. 33. Tat- (n) Roscorla v. Thomas, 3 Q. B. 236. 
 
 ton T. Wade, 18 C. B. 371. Simadn, t. Holt, C.J., Lysney r. SeWv, 2 Ld. Eavm. 
 
 PWlips, 8 Ad. & E. 457. H2o! ' '^ * •'' •> 
 
SECT. 2.] ACTIONS — PLEADINGS. 865 
 
 Declaration hy an agent against a pnncipal for a false re'presen- 
 tation. — Where a declaration stated that the defendant, being pos- 
 sessed of certain cattle, represented to the plaintiff that he, the 
 defendant, was entitled to sell the said cattle, and requested the 
 plaintiff to put them up to auction, and the plaintiff, confiding in 
 the representation, sold the cattle by auction, and, after deducting 
 the expenses of the sale, paid over the purchase-money to the 
 defendant, whereas the defendant was not entitled to sell the cattle, 
 and afterwards the true owner brought an action against the plain- 
 tiff, and recovered llOOZ. damages and 95Z. costs, which the plaintiff 
 was obliged to pay, together with 300Z., his own costs of defending 
 the action, whereupon the plaintiff requested the defendant to pay 
 him the amount of the said damages and costs, but the defendant 
 refused, it was held that the declaration disclosed a good cause of 
 action (o). 
 
 Declarations for fraudulently inducing an architect to withhold 
 his certificate of the completion of certain work, and thereby 
 preventing the plaintiff from recovering his stipulated remune- 
 ration, should set forth that the plaintiff had done all things 
 necessary to entitle him to the certificate, and that he had com- 
 pleted the work to the satisfaction of the architect, and that the 
 architect with fuU knowledge thereof fraudulently neglected to 
 certify in collusion with and by the procurement of the defen- 
 dant (jp). 
 
 Of the plea of not guilty. — Where an action was brought against 
 the defendant for selling a certain lease, and certain fixtures and 
 goodwill, for a larger price than they were worth, by means of a 
 false and fraudulent representation, it was held that the plea of 
 not guilty put in issue the sale by means of the fraudulent 
 representation, and that the plaintiff was bound to prove both the 
 sale and the misrepresentation (q). And where the wrongful act 
 complained of was, that the defendant represented himself to be 
 the agent of the master of a vessel, and thereby induced the 
 plaintiffs to enter into a charter-party with him, when in fact he 
 was not such agent, and had no authority to charter the vessel, it 
 was held that the plea of not guilty put in issue both the fact of 
 the misrepresentation and the fact of the making of the charter- 
 party, the two facts together constituting the cause of action (r). 
 Where the scienter is the gist of the action, it is put in issue by - 
 the plea of not guilty (s). 
 
 Under the plea of not guilty, the defendant may show that the 
 
 (o) Adamson v. Jarvis, i Bing. 69 ; 12 (q) Mummery v. Pavl, 1 C. B. 326. 
 
 MToore, 241. ('") Srink v. Wingua/rd, 2 C. & K. 657. 
 
 (m) 'jSaUerbury T. Vysi, 2 H. & C, 42 ; (s) Thomas T. Morgan, 2 C. M. & E. 
 
 32 Law J., Esch. 177. 498. 
 
866 FRAUD AND DECEIT. [CHAP. XVIII. 
 
 representation ia •within the 9 Geo. 4, c. 14, s. 6 {ante, p. 838), and 
 that it was not made by -writing signed by the defendant (t). 
 
 Proof of fratidulent misrepresentation and deceit.^"" It is settled 
 law," observes Parke, B., " that, independently of duty, no action 
 will lie for a misrepresentation, unless the party making it knows 
 it to be untrue, and makes it with a fraudulent intention to induce 
 another to act on the strength of it, and to alter his position to his 
 damage " (u). In order, therefore, to maintain an action for deceit 
 arising from a false and fraudulent misrepresentation, it must be 
 proved either that the defendant knew his statement to be untrue 
 (ante, p. 835), or that he pretended to a knowledge which he must 
 have known that he did not possess at the time he made the 
 representation (ante, p. 837), or that he stated a fact to be true for 
 a fraudulent purpose (x), and that he made it with the intention 
 that the plaintiff should, either directly or indirectly, come to the 
 knowledge of it, and act upon it. 
 
 Proof of the representation having heen made to the plaintiff.''^ 
 Public annoimcements and representations issued by the authority 
 and under the direction of the directors or managers of public 
 companies, and intended by them for general circulation in share- 
 markets, and amongst purchasers of shares, are deemed in con- 
 templation of law, as we have seen, to be made to all persons who 
 desire to have dealings with the company, and to become purchasers 
 of shares. The allegation in a declaration that the representation 
 was made to the plaintiff is completely proved by showing that it 
 was contained in a report or prospectiis, published by the defen- 
 dants, and sold or distributed by them, for the purpose of influencing 
 the sale of shares and being perused by persons desirous of bujdng 
 shares, and that the plaintiff perused it, and was induced by the. 
 statements and representations contained in it to buy shares (y). 
 
 Proof that the •plaintiff relied upon the representation, and nat 
 lipon his own examination and judgment — " Cases frequently occur 
 in which, upon entering into contracts, misrepresentations made by 
 one party are not in any degree relied upon by the other party. 
 If the party to whom the representations were made, himself 
 resorted to the proper means of verification before he entered into 
 the c6ntract, it may appear that he relied upon the result of his 
 own investigation and inquiry, and not upon the representations 
 made by the other party ; or if the means of investigation and 
 verification be at hand, and the attention of the party receiving the 
 representations be drawn to them, the circumstances of the case 
 
 (t) Turnleij t. Maegregor, 6 M. & Gr. (x) Twylai- v. Ashton, 11 M. & W. 415. 
 
 *°; . _, ^2^) Scott V. Dixon, 29 Law J., Exch. 
 
 («) Tliom \. Bighnd, 8 Eioh. 731, 62, n. Bedford y. £agBhaw,ib. 6i; ante. 
 
 Chlders v. Wookr, 2 EH. & Ell. 287. p. 839. 
 
SECT. 2.] ACTIONS — JBVIDENCE — WAEKANTIES. 867 
 
 may be such as to render it incumlDent upon a court of justice to 
 impute to him a knowledge of the result ■which, upon due inquily, 
 he ought to have obtained, and thus the notion of reliance upon 
 the representations made to him may be excluded. Again, when 
 we are endeavouring to ascertain what reliance was placed on 
 representations, we must consider them with reference to the 
 subject-matter and the relative knowledge of the parties. If the 
 subject is capable of being accurately known, and one party is, or 
 is supposed to be, possessed of accurate knowledge, and the other 
 is entirely ignorant, and a contract is entered into after representa- 
 tions made by the party who knows, or is supposed to know, 
 without any means of verification being resorted to by the other, 
 it may well enough be presumed that the ignorant man relied on 
 the statements made by him who was supposed to be better 
 informed ; but if the subject is in its nature uncertain, if all that 
 is known about it is matter of- inference from something else, and 
 if the parties making and receiving representations on the subject 
 have equal knowledge, and means of acquiring knowledge, and 
 equal skill (see ante, p. 845), it is not easy to presume that 
 representations made by one would have much influence upon the 
 other" (z). 
 
 Cases frequently occur in which it appears that a contract was 
 entered into after erroneous representations made by one party, 
 and yet without the other party having at all relied upon those 
 erroneous representations (a). 
 
 In an action for damages for a false representation by the 
 defendant that he was authorized to accept a bill of exchange in 
 the name of a public company, and to bind the company by the 
 acceptance, the plainttEf must prove that he has sustained some 
 actual pecuniary damage from the false representation. The mere 
 fact of the biU coming into the plaintiff's hands does not per se 
 import damage, as the plaintiff may have received the bUl without 
 having given any consideration for it (6). 
 
 Proof of warranties. — Although a warranty made orally on the 
 completion of a written contract cannot be introduced as part of the 
 contract, if the contract is silent as to the fact of the warranty (c), 
 yet, if it can be shown that the warranty or representation was 
 false to the knowledge of the person making it, and therefore 
 fraudulent, it may be given in evidence as a circumstance collateral 
 to the contract, and may be made the foundation of an action for 
 
 (z) The Master of the Rolls, Clapham (h) Eastwood V. Sain, 3 H. & N. 738 ; 
 
 V. ShilMto, 7 Beav. 149. ^8 Law J, Ezoh. 74 ; 7 W. B. 90 
 
 (a) Shrmsbwry T. BUunt, 2 Sc. N. B. (c) Addison on Contracts, 6th ed., pp. 
 
 594. Holt, C.J., Lysney v. Selby, 2 Ld, 19, 220. 
 
 Eaym. 1120. 
 
 ■' k K k 2 
 
868 FKAU0 AND DECEIT. , [CHAP. XVIII. 
 
 deceit (d) : for wherever a written contract or undertaking has been 
 procured through, the medium of falsehood and fraud, the fact may 
 he proved by oral testimony, notwithstanding the existence of a 
 writing embodying the terms of the bargain, but making no 
 mention of the false representation (e). 
 
 An unstamped written agreement may be given in evidence to 
 prove fraud, if it is used merely for the purpose of showing that a 
 person paying money has been imposed upon (/). 
 
 Proof of the terms and conditions of warranty ly proof of public 
 notices stuck up in an auction-room or repository ■ where the thing 
 warranted was sold.—Ii in an auction-room, or at a repository 
 established for the sale of horses, the rules or conditions of sale 
 are painted up in legible characters in a conspicuous position, the 
 purchaser will be deemed to have had notice of the regulations, 
 and will be bound by them, unless the vendor has resorted to some 
 misrepresentation or contrivance to prevent the purchaser from 
 reading them. And if by these rules or conditions it is stipulated 
 that a warranty of soundness shall remain in force for a given 
 period only, unless in the meantime a certificate of unsoundness 
 is procured from a veterinary surgeon, the purchaser must comply 
 with the stipulation, or lose his remedy upon the warranty (ff). 
 
 Evidence of the breach of warranty of a horse — What constitutes 
 unsoundness. — " The rule as to unsoundness," observes Parke, B., " is, 
 that if at the time of the sale the horse has any disease, or has under- 
 gone any alteration of structure either from disease or accident, 
 which 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, or from its ordinary effects, will diminish 
 the natural usefulness of the animal, such horse is unsound. I 
 think the word ' sound ' means, that the animal is free from disease, 
 at the time he is warranted. If we once let in considerations of the 
 slightness of the disease and facility of cure, where are we to draw 
 the line ? A.horse may have a cold, which may be cured in a day ; 
 or a fever, which may be cured in a week or month ; and it would 
 be difficult to say where to stop. Of course, if the disease be slight, 
 the unsoundness is proportionally so, and so also ought to be the 
 damages " (A). Convexity of the cornea, rendering a horse short- 
 sighted, and causing him to shy, is unsoundness (*). It is not 
 nough for the plaintiff to give evidence inducing a suspicion that 
 
 (d) DoheU V. Stevens, 3 B. & 0. 623. (/) Holmes vt Sixsmith, 7 Exch. 807. 
 
 Meyer y. Everth, 4 Campb. 22. WHgkt (g) Byviater v. Richardson, 1 Ad. & E, 
 
 V. Grookes, I Sc. N. R. 685. Hutchin- 508. Mesnard t. AlcMdge, 3 Egp. 271. 
 son, V. Mm-ley, 1 So. 341. Oanham. y. (h) Kiddell v. Buml^d, 9 M. & W. 
 
 Barry, 15 C. B. 597 ; 24 Law J., C. P. 669. 
 
 ■"'a,\ n • o , , « ^ « (^^ -Bolyday y. Morgm, 28 Law J., 
 
 (c) .Z)aTOy.«jrmonrfs,lCox,Eq. Ca.405. Q. B. 9. 
 
SECT. 2.] ACTIONS — EVIDENCE — TEADE-MAEKS. 869 
 
 the horse was unsound at the time of the warranty. If he only- 
 throws the soundness into doubt he is not entitled to recover {k). 
 
 Proof of manifest defects not covered hy the warranty. — If the 
 defendant can prove that the defect complained of by the plaintiff 
 was a manifest defect obvious to all observers, and that the plaintiff 
 examined the horse, and knew of the defect at the time he bought 
 the animal, the defect will be excluded from the warranty {ante, 
 p. 845). If the horse was naturally ill-formed from turning out 
 one of its fore-legs, so as to be incapable of doing much work 
 without cutting the ankle with the shoe so as to produce lameness, 
 this is not unsoundness, rendering the vendor liable in damages for 
 a breach of warranty (I). The peculiar form of hock called " curby 
 hock," which is a natural defect, is not an unsoundness, if it has not 
 occasioned lameness up to the time of the sale, although such horses 
 are very liable to throw out a curb, and become lame (m). But bone 
 spavin in the hock is unsoundness, although it may not produce 
 lameness for years (n). A natural malformation of the animal, 
 constituting a patent defect visible to the eye of every observer, 
 must be taken to be known to a purchaser who has examined the 
 horse, and he will be deemed to have bargained for the warranty of 
 soundnesa subject to the patent defect {ante, p. 845) ; but if the' 
 defect is not obvious, it must be proved that the purchaser was 
 cognizant of it at the time he purchased, for the very fact of the 
 warranty having been given would tend to throw him off his guard, 
 and prevent biTn from making a close examination of the animal (o). 
 
 Proof of vice. — If a horse has been warranted free from vice, and 
 the horse is proved to be a crib-biter, the warranV is broken. " The 
 habit of crib-biting," observes Parke, B., " may not indeed show vice 
 in the temper of the animial, but as it is a habit decidedly injurious 
 to its health, and tending to impair its usefulness, it comes within 
 the meaning of the term vice" {p). 
 
 Proof of the use of cownterfeit trade-marks. — In actions for 
 damages for the fraudulent use by the defendant of the plaintiff's 
 trade-mark, it is hecessary to prove that the plaintiff, being a 
 manufacturer, has been accustomed to use a certain mark to denote 
 that the goods, so marked were of his manufacture, that such mark 
 was well known and understood in the particular trade, and that 
 the defendant had adopted the mark, and sold goods bearing such 
 mark upon them, as and for the plaintiff's goods, with intent to 
 deceive {q). It must be proved that the mark closely resembled the 
 
 (h) Eaves v. Diaxm-, 2 Taunt. 343. (o) Holyday v. Morgan, 28 Law J., 
 
 II) Alderson, J., Dickinson v. FoUelt, Q- I^-, ^- , , . , , „ „ „ - , „ _ , 
 
 1 M & Kob. 300. (P) Scholefield v. Eobh, 2 M. & Rol). 
 
 (m) Brovm x-'ElkingUm, 8 M. & W. 210. ^ t p .7 Ar •,; 
 
 ,„!, ' (g) Wilde, C. J., Eodgers v. Nowill, 
 
 ' {n) Watson v. Denton, 7 0. & P. 85. 5 0. B. 125. 
 
870 FK^UD AND DECEIT. [CHAP. XVIII. 
 
 plaintiffs mark, and that it was used by the defendant to enable 
 him to pass off his own goods as being of the plaintiff's make (r). 
 
 Hemedies in equity for a false representation. — Where a false 
 representation is made by one man to induce another to enter into 
 a contract, and the person making the representation is np party 
 to the contract, the Court of Chancery will compel the latter to 
 make good his assertion as far as possible. The principle of equity, 
 that where a person by misrepresentation draws another into a 
 contract, such person shall be compelled, if possible, to make good 
 the representation, applies not merely to cases where the statements 
 were known to be false by those who made them, but to cases where 
 statements, false in fact, were made by persons who believed them 
 to be true, if in the due discharge of their duty they ought to have 
 known, or if they had formerly known, and ought to have remembered, 
 the fact which aiegatives the representation (s). The principle is this, 
 that a representation made by one party for the purpose of in- 
 fluencing the conduct -of another, and acted on by him, wUl.in 
 general be sufficient to entitle him to the assistance of a Court of 
 Equity for the purpose of realizing such representation (t). And it 
 seems that in many cases of false and iraudulent representation, 
 the remedy by action at common law for dalHages, and by biU in 
 equity, is concurrent («). 
 
 Of the damages recomrahle in actions for fraudident misr^^e-n,^ 
 tation and deceit.^-Jiwaages are, as we have seen, recoverable from 
 every defendant who has knowingly made a false statement to the 
 plaintiff, with an intention that he should act upon it in reliance 
 upon its truth, an'd the plaintiff has acted upon it, and been 
 damnified ; for " wherever a man wickec^ly asserts that which he 
 knows to be false, and thereby draws his neighbour into a heavy 
 loss, he is responsible for it, or for so much of the loss as was the 
 necessary, natural, or probable and known consequence of the mis- 
 representation " (ic). Pamages also are recoverable, as we have 
 seen, from persona who represent that to be true within their own 
 knowledge which they do not know to be true, and so induce others 
 to act upon the faith of the representation, and sustain damage 
 (uTUe, pp. 837, 844), more particularly in those cases where the 
 means of knowing the truth of the matter, rest peculiarly or ex- 
 clusively with the persons piaking the representation (ante, pp. 844, 
 845). If a man assumes to be an agent when he is not so, he must 
 answer for any damage which is the natural and direct result of 
 
 (r) Orcmshfiy y. Thompson, 4 M. & Gr. Simpsm, L. E, 9 Bq. Ca., 506. 
 
 387 ; 5 So. N. R. 562.- Morison v. Sahnm, («) Raraskwe v. BoUon, L. K., 8 J!q- Ca. 
 
 2 Sc. N. R. 452. See Seim v. Prmezmde, 294 ; 38 Law J., Ch. 694. Leather v. 
 
 post, 876. Simpson, L. R., 11 Eq. Ca. 398. 
 
 (s) Pvlsford V. Richards, 17 Bpav. 94. (x\ PasUy v. Freemcm, 3 T. E. 65. 
 
 («) Per Stuart, V.-C, Thomson v. See ante, pp. 26, 836. 
 
SECT. 2.] AOTIONS— DAMAGES. 871 
 
 confidence being given to the representation of authority. If he 
 believed that he had authority to contract as agent when he had not, 
 he is answerable for the consequences in an action of contract. If 
 he knew that he had no authority, he is then responsible in an action 
 for deceit {y). 
 
 Special damages — Breach of warraniy.'-^Ii special damages have 
 been sustained by reason of the misrepresentation and deceit, or 
 breach of warranty, of a vendor, they may be recovered from the 
 latter, if the plaintiff has claimed them in his declaration. Where 
 a cable was warranted sound, and a purchaser, relying on the 
 warranty, attached an anchor to the cable, and the cable was un- 
 sound and broke, and the purchaser lost bis anchor, it was held 
 that the value of the anchor might be recovered in addition to the 
 price paid for the cable, but that the plaintiff must expressly claim 
 it in his declaration (z). But the damages must be such as may 
 fairly and reasonably be considered in the ordinary course of things 
 to be the probable result of the plaintiff's acting on the faith of the 
 representation or warranty. If there are special circumstances 
 rendering the misrepresentation or deceit peculiarly injurious to the 
 plaintiff, the defendant will not in general be responsible for the 
 increased damages resulting therefrom, unless the special circum- 
 stances were known to him at the time of the making of the 
 representation (a). However, there is a distinction, it seems, 
 between an action on a breach of warranty and one for fraudulent 
 misrepresentation; for damage which may be the necessary or 
 probable result of a false representation would not necessarily be 
 within the contemplation of the parties on a warranty (6). 
 
 fecial damages— False assumption of agenei/.—'Wh.&ves the de- 
 fendant, a land agent, professed that he had, and supposed that he 
 had, authority from a landlord to let an estate, and thereupon 
 entered into an agreement in writing with the plaintiff, whereby he 
 professed to bind the landlord to grant the plaintiff a lease of the 
 estate for twelve years, and the plaintiff, supposing that the de- 
 fendant had the authority he pretended to have, entered upon the 
 land, and bought and paid for the straw and manure, and expended 
 considerable sums ip preparing the land for cultivation, and the 
 landlord then refused to grant the lease on the ground that the 
 defendant was. not authorised to let the land on the terms of 
 the agreement, and the plaintiff, relying on the representation of 
 
 M OoUmv. Wright, 7 n\. & Bl. 314. dison on Contracts, 6tli edit., pp. 1075, 
 
 Manddl V. Trimen, 18 C. B. 786 ; 25 1077. ^ , „ -n, \. „., 
 
 Law J C P 307. Simons v. Patchett, (a) Sadley v. Baxendcde, 9 Exch. 341 ; 
 
 7EU.&Bi.568; 26LawJ.,'Q. B. 195. 23 Law J., Exch. 179. Portman v. 
 
 (zV BorradaUe v. Brunton, 2 MoOre, MtddUton, i 0. B., N. S. 322 ; ^os*, ch. 
 
 582 • 8 Taunt. 335. As to damages re- 22, s. 1. 
 
 coverable for breach of warranty, see Ad- (6) Mullett v. Mason, L. R., 1 C. P. 559. 
 
872 FRAUD AND DECEIT. [CHAP. XVIII. 
 
 authority that had been made by the defendant, instituted a suit 
 in the Court of Chancery to enforce a specific performance of the 
 agreement, and gave notice to the defendant of the institution of 
 the suit, and that the landlord defended on the ground that the 
 defendant had no authority to sign the agreement on his behalf, and 
 that if the suit failed from want of authority the plaintiff would 
 look to the defendant for costs, and the defendant did not with- 
 draw his assertion of authority, but said he would resist any demand 
 the plaintiff might have against him, and the suit weiit on, and 
 it was established that the defendant had no authority to let the 
 land on the terms specified, and the plaintiff had to pay the costs 
 of the suit, it was held that he was entitled to recover these costs 
 from the defendant, as well as the expenses he had incurred in pre- 
 paring the land for cultivation (c). So, in such a case, he would 
 be entitled to recover the estimated value of the lease ; but not 
 expenses incurred by reason of his having resold his interest in the 
 lease to a third party without notice to the defendant, such damages 
 not necessarily or naturally resulting from the wrongful act of the 
 defendant, but from the fact that the plaintiff had chosen to resell 
 his interest (d). So where the defendant, a joint owner of an 
 estate, contracted, without authority from his co-owners, to sell it to 
 the plaintiff, and on their failure to complete the sale the pliaintiff 
 sued them and failed, it was held that the plaintiff was entitled 
 to recover from the defendant all costs, up to the time when it 
 appeared that the defendant had no such authority, as well as the 
 expenses he had incurred in the investigation of title, and the 
 difference between the contract price and market price of the estate, 
 but not losses he had incurred on the re-sale of stock bought for the 
 purpose of stocking the land, as that was not shown to have been 
 in contefliplation of the parties at the time of the sale (e). 
 
 Prevention of fraud by indictment (/). — All deceitful practices 
 for defrauding, or endeavouring to defraud, another of his just rights 
 by means of some artful device, or fraudulent contrivance, are 
 punishable as misdemeanours at common law. Persons have been 
 indicted and convicted for playing with false dice ; also for causing 
 an illiterate person to execute a deed to his prejudice by reading it 
 over to him in words different from those in which it was written ; 
 also for persuading a woman to execute writings on her marriage 
 as being a settlement of her property upon her, but which consti- 
 tuted an acknowledgment of a debt with a warrant of attorney to 
 
 (c) Collen V. Wright, 8 Ell. & BI. 647 ; (e) Oodviin \. Francis, L. R.. 5 C. P 
 
 26 Law J., Q. B. 147 ; 27 ib. Exoh. 217. 295. 
 See Hughes v. Grwme, 33 Law j;, Q. B. (/) By the Merchandise Marks Act, 
 
 ^^h. c , 7- ,r „ -r T, - „ ^^^2' 25 * 26 Vict. c. 88, the fraudulent 
 
 {d) Speddmg v. Nevell, L. E., i C. P. use of trade marks is made a misde- 
 212. meanour. See ss. 2, 3, 12, 13. 
 
SECT. 2.] EEMEDY BY INDICTMENT. 873 
 
 enter up judgment {g). Where a man went about the country and 
 offered blacking for sale as " Everett's Premier," representing it to 
 be a well-known article of that name, but knowing that it was not 
 so, and intending to cheat his purchasers by palming off upon them 
 a spurious article as the true one, it was held that he was indict- 
 able for a misdemeanour (A). 
 
 Indictments for obtaining, or endeavouring to obtain, money or 
 goods by false pretences. — Shopkeepers also have been indicted and 
 convicted for obtaining, or endeavouring to obtain, money from 
 their customers by false pretences, by preparing and selling spurious 
 articles fraudulently represented by them to be genuine, in order 
 that by means of the counterfeit they might obtain the price of the 
 genuine article. This was the case where a tradesman prepared 
 some baking powders of his own manufacture, and put them into 
 printed wrappers and represented them to be the baking powders 
 of a celebrated manufacturer, and sold them, and received the 
 money for them as such (i); where a shopkeeper obtained the price 
 of silver for base metal, by knowingly and fraudulently represent- 
 ing an article of base metal sold by him to be silver (k) ; where 
 dealers in wares and merchandise knowingly and fraudulently mis- 
 represented the quantity or weight of articles of merchandise, 
 delivered by them to the order of a purchaser, for the purpose of 
 obtaining, or who thereby obtained from such purchaser, the price 
 of a larger quantity of goods than had been actually delivered {l). 
 
 But a mere misrepresentation, at the time of a sale, of the 
 quality of the goods sold, if it amounts only to a vaunting or 
 exaggerated statement of the value of the article — the high-flown 
 praise often bestowed by a vendor on the wares he sells — will not 
 amount to an indictable offence, as where the vendor of spoons 
 represented that they were " equal to Elkington's A" (m). But 
 where the vendor of a gold chain falsely represented that it was 
 15-carat gold, when it was in reality only 6-carat gold, and the 
 vendor knew it, his conviction was affirmed (%). 
 
 Various statutes have been passed for the repression of fraud, 
 and the punishment of persons who obtain money, goods, or 
 securities under false pretences (o) ; but " these statutes," observes 
 PoUock, O.B., " were never, in my opinion, meant to apply to a 
 mere fraud committed in the course of a mercantile transaction, and 
 to make it the subject of an indictment, unless the matter was 
 
 (q\ Hawkins' Pleas of the Crown, ch. • 81. Seg. v. Bagg, Bell, Cr. C. 214. Reg. 
 
 71 T. Eagleton, Pears. & P., Cr. 0. 515. Meg. 
 
 (h) Reg. V. Dundas, 6 Cox, Cr. C. 380. v. Lee, 33 Law J., M. C. 129. 
 
 (i) Reg. v. Smith, 26 Law J., M. C. (m) Reg. y: Bryan, Dears. & B., C. C. 
 
 105. 265. 
 
 a) Reg. V. Roebuck, 25 Law J., M. C. (n) Reg. v. Ardley, L. E., 1 C. C. E. 
 
 lOi. 301. 
 
 {1} Beg. V. Sherwood, 26 Law J., M. C. (o) 24 & 25 Vict. c. 96, s. 88. 
 
874 ' EEAUD AND DECEIT. [CHAP. XVIII. 
 
 really and wholly a designed piece of swindling" (p). To consti- 
 tute' an obtaining within the statute, it is necessary that there should 
 be an intention wholly to deprive the owner of his property in the 
 chattel ; obtaining the loan of a chattel, therefore, by false preten ces, 
 is not within the statute (q). 
 
 Injunction to prevent fraud. — ^Whenever a person has been in- 
 jured in his trade or business, or has sustained some special or 
 peculiar injury from a fraud committed by another, he is entitled 
 to an injunction to prevent the continuance of the injury as well 
 as to compensation in damages. But the court will not lend 
 its assistance for the purpose of preventing mere falsehood, not 
 interfering with the rights of another. It will not, therefore, 
 restrain a tradesman from putting a false statement upon the 
 goods he sells, such as a representation that they had obtained a 
 prize-medal, when no such medal had ever been obtained (»•). 
 
 Fraud on the public affords no ground for a plaintiff coming 
 into a court of equity for an injunction where he has himself' no 
 interest in the subject-matter by which the fraud is committed. 
 In these oases, the suit must be at the instance of the Attorney- 
 General (s). , 
 
 Injunction to prevent the fraudulent use of trade'marhs, names, 
 (&c.— The assumption of a name by a stranger who has never before 
 been called by iihat name is not the subject of a civil action, for by 
 the English law there is no right of property in a person to the use 
 of a particular name, except in connection with a trade or business, 
 which right is recognised, and a person assuming it, colourably or 
 otherwise, in invasion of another's rights, is guilty of a fraud for 
 which a remedy lies either at law or equity {t). Thus, it is a fraud 
 on the part of a defendant to set up a business under such a designa- 
 tion as is calculated to lead, and does lead, other people to suppose 
 that his business is the business of another person {u). Where, 
 therefore, the plaintiffs, trading under the name of " The Guinea 
 Coal Company," had obtained a considerable reputation, the defen- 
 dants, who started in the same street a business under the name of 
 "The PaU Mall Guinea Coal Company," were restrained from using 
 such name in the same street (u). 
 
 There is no property, strictly speaking, in a trade-mark, but a 
 person may acquire a right of using a particular mark for articles 
 which he manufactures, so that he may be able to prevent any 
 other person from using it. Where the mark denotes that articles 
 
 (p) Reg. V. Evans, 32 Law J., M. C. (s) BaU v. Barrows, 32 Law J„ Ch. 
 
 38. 551. 
 
 (g) Beg. v. KUham, L, K., 1 C. C. K. («) Du Boulmi v. Xlw MoiMy, L, E., 2 
 
 261. P. C. Ca. 430. 
 
 (r) Batty v. HiU, 1 H. & M. %U. (a) Lee v. Haley, L, K., 5 Ch. App. 155. 
 
SECT. 2.] REMEDY BY INJUNCTION. 875 
 
 SO marked are manufactured by a particular person, and another 
 person puts the same mark on his own goods, this is a fraud upon 
 the original manufacturer who first used the mark, and on pur- 
 chasers who buy the goods under the impression that they are 
 manufactured by the person whose mark they bear ; and this fraud 
 may be redressed by injunction in this country, if it is committed 
 here (x), whatever may be the country of the manufacturer who has 
 been defrauded (y), and although the marks have been used in 
 ignorance, and under the belief that they were merely fancy decora- 
 tions (z). Where the trade-mark has been used with the knowledge 
 of its being the distinctive device of another manufacturer, the 
 court will, in addition to an injunction against the future use of it, 
 decree an account of profits, and compensation in respect of the 
 past use after knowledge of the prior right (a). 
 
 A trade-mark may be of the greatest possible value, even 
 though in reality it may not affect the quality of the article on 
 which it is impressed. It may either indicate that the article was 
 ma^e by a particular person or firm, and so serve as a guarantee for 
 its excellence ; or it may have a merely capricious value, as where 
 the article is intended to be sold in a place where the brand is 
 known, and from mere inveteracy of habit people choose to go 
 on purchasing those articles only of the kind which are marked 
 in that particular way, and to which they have always been 
 accustomed (b). 
 
 The principle upon which courts of law and equity proceed in 
 granting Telief .and protection in cases of this sort is, that a man 
 ought not to sell his own goods under the pretence that they are 
 the goods of another man, and ought not to be permitted to practise 
 such a deception, nor to use the means which contribute to that 
 end. He is not, therefore, allowed to use names, marks, letters, or 
 other indicia, by which he may induce purchasers to beUeye that 
 the goods which he is selling are the manufacture of another 
 person (c), even although he may have some right to the name (c[). 
 However, where the article sold bears upon its face evidence that 
 it has passed through the hands of a manufacturer other than the 
 original one, and therefore may not be genuine, a mere repreaenta-- 
 
 (x) HoUoway v. HoV/iwn, 13 Beav. pgriodieal puljlication. See Maxwell v. 
 
 213. Framks v. JfcaW, 10 ih. 303. mgg, L. E., 2 Cli. Appt 307. 
 
 («) CqUins' Oa. V. Brfwn, 3 K»y & J, (6) So^lsm T. Hitchcock, 32 Law J., 
 
 428. Leniker Cloth Co. v. American C. P. 154. 
 
 Leather Cloth Co., 1 H. & M. 271. (c) Perry v. Tnmfltt, 6 Beav. 73. 
 
 Cp) MiUinffton t- i^w, 3 My), & Or. JHxon v. Pim!Q%a, 30 Law J., Q. B. 137. 
 
 338. Cfirtm T, Cm-iisU, 31 Bear. 2aa, -Dent v. Turpin, Tucker v. Turpim, 2 
 
 (a) Edelstm v. Edelsten, 1 De .G-. J, & Johns. & Hem. 139 ; 30 Law 3., Oh. 
 
 S. 185. Leather Ckih Co. t. ArneriQan 495. 
 
 Leather Cloth Co., supra. See ante, p. 8, {d) Seixo v, Prove^nde, L. B. 1 Ch. 
 
 A trade-mark may exist in the title of a App. 192. 
 
876 FEAUD AND DECEIT. [CHAP. XVIII. 
 
 tion by the seller that he knows it to he manufactured by the 
 original maker, is not such a degree of wilful misrepresentation as 
 to justify the grant of an' injunction (e). 
 
 Where goods marked with a fraudulent trade-mark were 
 deposited in the hands of a bailee, the court granted an injunction 
 against the bailee to prevent him from parting with the goods, and 
 another injunction against the owner to prevent him from proceed- 
 ing with an action against the bailee for refusing to deliver them 
 up to him (/).' And where goods bearing a forged trade-mark were 
 in the hands of, a iirm of forwarding agents, who were ignorant of 
 the forgery, it was held that the persons whose right was infringed 
 were entitled to have the spurious imitation of their mark removed 
 from the goods, and to a lien on the goods for their costs {g). 
 
 Two things are requisite to be proved to establish a fraud of 
 this description. First, there must be such a general resemblance 
 by one man of the trade-mark of another as to mislead the public, 
 and this is sufficient although the marks are so far different that 
 any one seeing them side by side would not be misled (h). And, 
 secondly, a sufficient distinctive individuality must be preserved, so 
 as to procure for the wrong-doer himself the benefit of the deception 
 which the general resemblance is calculated to produce (j). 
 
 The original inventor of a new manufacture, and persons claim- 
 ing through him, is alone entitled to designate such manufacture as 
 "the crriginal," and after the manufacture has obtained a reputa- 
 tion, an injunction will be granted to restrain another manufacturer 
 from applying the designation of "original" to his goods (yfc). 
 But there is nothing to prevent a person who has become acquainted 
 with the mode of compeiinding a particular preparation from pre- 
 paring and selling it after the death of the original discoverer, as 
 the preparation of such discoverer, provided he does not assert or 
 suggest that his preparation is the manufacture of the successors in 
 business of the original discoverer, or that his preparation only is 
 genuine, &c. (J). 
 
 If it is found that the defendant is manufacturing printed labels 
 which the plaintiff alone has a right to use, and the use of which 
 on any goods not manufactured by the plaintiff would be a fraud 
 on the plaintiff, the court will, at the instance of the latter, interfere 
 by injunction to prevent the printing, manufacturing, and selling 
 of such labels, and will not hold back until the whole fraud is 
 brought to a completion by the sale of spurious goods with the 
 
 (e) AinswoHh v. WaMsley, L. B., 1 (h) Sekm v. Provezende, supra. WotJier- 
 
 Eq. Ca. 518. »pooBV.(7ume,L.K.,5Engl.&Ir.App 608 
 
 (/) Bunt T. Mmiere, 34 Law J. Ch. (i) Cmft v. Day, 7 Bear. 84. 
 
 1*2. (ft) Cocks T. Chandler. L. E. 11 Eo Ca 
 
 {g) Upmann y. Elkan, L. E. 12 Eq. 446. ' ^" 
 
 Ca. 140 ; 7 Ch. App. 130. (I) Jammy.James,!,.^., 13Eq. Ca.421. 
 
SECT. 2.] EEMEDY BY INJUNCTION. 877 
 
 spurious trade-marks affixed (m). The equitable interference of 
 the court is ■ founded on its jurisdiction to give relief in the shape 
 of preventive justice, in order to protect and make more effectual a 
 legal right, and " protect property from that which, if completed, 
 ■would give a right of action " (n). ' ' 
 
 Where the plaintiff started omnibuses with particular words 
 and devices marked upon them, an injunction was granted restrain- 
 ing the defendant from starting opposition omnibuses having the 
 same words and devices marked upon them, so as to make it ap- 
 pear that the defendant's omnibuses belonged to, and were under 
 the management of, the plaintiff (o). 
 
 Where manufacturers have introduced a rare or superior article, 
 and have given it a new name, by which it is known in the market, 
 the court will restrain another manufacturer from bringing out a 
 similar article, and calling it by the same name (_p). " The court, 
 when it interferes in cases of this sort, is exercising a jurisdiction 
 over legal rights ; and although sometimes, in a very strong case, 
 it interferes in the first instance by injunction, yet in a general 
 way it puts the party upon asserting his right by trying it before a 
 jury. If it does not do that, it permits the plaintiff, notwithstand- 
 ing the suit in. equity, to bring an action. In both cases the court 
 is only acting in aid of, and as ancillary to, the legal right, and will 
 not, therefore, at once interfere by injunction, and prevent a de- 
 fendant from disputing the plaintiff's legal title " {q). 
 
 Where a trade-mark, the property of a partnership, has been 
 used to denote the place where a particular article is manufactured, 
 or the quality of the goods, it constitutes, as between the surviving 
 partner and the estate of a deceased partner, a portion of the pro- 
 perty of the partnership. Where it is used to denote the persons 
 by whom the article is manufactured, the exclusive right of using it 
 would, perhaps, vest in the surviving partners to the exclusion of 
 the deceased if). 
 
 Where any particular article derives its celebrity from the place 
 where it is grown or manufactured, such as wine made from a 
 particular vineyard, a sale of the property would carry with it a 
 right to the use of a trade-mark known in the market as .denoting 
 the growth of that particular property (s). 
 
 , (m) Farina v. Silverlock, 24 Law J., a tort. Du Boulay v. Bu Boulay, ante, 
 
 Ch. 634 ; 26 »5. 11 ; 6 De G. M. & G: p. 874. 
 
 2\^ (q) Ld. Oottenham, Motley v. Dawn- 
 in) Emperor of Austria v. Bay, 30 man, 3 Myl. & Or. 1. OoUins' Co. v. 
 
 Law J Ch 706. Eddstm r. Edelsten, iJcCTCS, 28 Law J., Ch. 56. Blanchardx. 
 
 supra.'' Hai,%l.tk.m. 
 
 (o) Knott T. Morgan, 2 Keen, 219. ()■) Hdl v. Barrows, 32 Law J., Ch. 
 
 (p) Braham y. Bustard, 1 H. & M. 548 ; 33 ib. 204. 
 
 447. But the mere assumption oF (s) Leather Cloth Co. v. American 
 
 another person's name apart from any Leather Cloth Co., 1 H. & M. 287, 8, 
 
 connection with trade or business, is not Wood, V.-O. 
 
878 FEAUD AND UECEIT. [CHAr. iVIII. 
 
 TLe person entitled to a trade-mark may, unless it is a purely- 
 personal one and imports that the goods sold are the manufacture 
 of a particular individual, assign to another the right to use the 
 mark in common with himself, or he may assign the exclusive use 
 of it, coven antilig that he will not use it himself {f). If the trade- 
 mark be local, i.e., if it import that goods he manufactured at a 
 particular place, it is doubtful if it could be assigned to persons 
 carrying on business elsewhere (m). 
 
 If the trade-mark itself contains a material misrepresentation 
 as to the character of the goods to which it is applied, that wiU 
 disentitle a complainant to an injunction, although the misrepre- 
 sentation is so obvious that no purchaser would be deceived {x). 
 But the mere statement on the trade-mark that the article is 
 "patent" is not such a misrepresentation, although no patent for 
 it has been taken out, if the goods have, from many years' usage, 
 acquired the designation, in the trade generally, of patent (y). 
 
 (t) Bury V. Bedford, 33 Law J., Ch. («) Leather Cloth Co. v. American 
 
 465 ; <mte, p. 101. Leather Cloth Co., 33 Law J., Ch. 199. 
 
 (m) Lord Westbnry, C, in Leather {y) MarshaU \. Boss, L. K., 8 Eq. Ca. 
 
 Cloth Co. T. American Leather Cloth Co., 661. 
 swpra. See Kerr on Injunctions, p. 476. 
 
879 
 
 CHAPTEE XIX. 
 
 OF MATEIMONIAL AND PABENTAL INJUKIES, ADULTERY, AND 
 
 SEDUCTION. 
 
 Section X.-^Of infringements of matrimo- 
 nicd and parental rights. — Rights of 
 ■wives deserted by their husbands — 
 Restitution of conjugal tights — Judi- 
 cial separation — Cruelty and desertion 
 — Reyival of condoned cruelty — What 
 amounts to desertion without cause — 
 Eights of married women after a decree 
 for a judicial separation — ^Alimony- 
 Adultery and dissolution of the mar- 
 riage contract — Adultery and desertion 
 on the part of the husband — Wilful 
 neglect or misconduct conducing to 
 adultery — Connivance — Condonation 
 of adultery — Alimony on dissolution of 
 marriage — Orders for settlement of 
 property for the benefit of the innocent 
 party and children — Power of the Di- 
 vorce Court over marriage settlements 
 — Orders respecting the custody of 
 children — ^Right of fathers and guar- 
 dians to the custody of infant children 
 — Control over this right exercised by 
 the courts — Custody of children of 
 British subjects born abroad — Custody 
 of children of foreigners — Right of 
 
 motliers to the custody of children 
 under seven years of age — Obligation 
 of parents to {irovide for children — 
 Evidence on the hearing of petitions — 
 Competency of the husband and wife 
 to give evidence — Trial of questions 
 of fact before a jury — Petitions for 
 damages from adulterers — Evidence 
 thereon — Proof of marriage — Damages 
 recoverable — Application thereof. 
 Section II. — Of seduction. — Harbouring 
 of married women — Seduction and loss 
 of service of servants, daughters, and 
 wards^Pretended hiring of girls for 
 purposes of seduction — Seduction of 
 married daughters — Proof that defen- 
 dant, though he seduced the girl, was 
 not the father of her child — Proof of 
 the seduction having been occasioned 
 by the plaintiff's neglect of his parental 
 duties — Parties to actions for seduction 
 —Pleadings, defences, and evidence — 
 Damages recoverable — Indictments for 
 the abduction of unmarried girls under 
 age. 
 
 SECTION I. 
 
 OF THE INFEtNGEMENT OF MATRIMONIAL AND PARENTAL EIGHTS. 
 
 Sights of wives deserted hy their hitshands. — A wife deserted by 
 her husband may at any time after such desertion, if resideiit 
 ■within the metropolitan district, apply to a police magistrate, or if 
 resident in the country, to justices in petty sessions, or in either 
 case to the Divorce Court, or the judge ordinary thereof, for an 
 order to protect any money or property she may acquire by her 
 own lawful industry {a), and property which she may become 
 
 (o) As to the meaning of term "lawful," see Mason v. MitcheU, 34 Law J., 
 Exch. 68. 
 
880 MATRIMONIAL INJURIES. [OHAP. XIX. 
 
 possessed of, after sucli desertion, against her husband, or his 
 creditors, or any person claiming under him ; and such magistrate, 
 or justices, or court, if satisfied of the fact of the desertion, and 
 that the same was without reasonahle cause, and that the wife is 
 maintaining herself by her own industry or property, may make 
 and give to the wife an order protecting her earnings and property, 
 acquired since the commencement of the desertion (6), from her 
 husband and aU creditors and persons claiming under him ; and 
 such earnings and property will belong to the wife as if she were a 
 feme, sole (c) : but every such order, if made by a police-magistrate 
 or justices at petty sessions, must, within ten days after the 
 making thereof, be entered with the registrar of the county court 
 within the jurisdiction of which the wife is resident; and the 
 husband, and any creditor or other person claiming under him, 
 may apply to the court, or to the magistrate, or justices by whom 
 such order was made (d), for the discharge thereof. If the husband 
 or any creditor of, or person claiming uuder, the husband, shall 
 seize, or continue to hold, any property of the wife after notice of 
 any such order, he may be compelled, at the suit of the wife, to 
 restore the specific property, and also a sum eqixal to double the 
 value of the property so seized or held after such notice as afore- 
 said : 20 & 21 Vict. c. 85, s. 21 ; 21 & 22 Vict. c. 108, s. 6. 
 
 Bight of action of married women after they have obtained an 
 order for protection. — ^When an order of protection has been made, 
 the wife, during the continuance thereof, is in the like position in 
 all respects with regard to property and contracts, and suing and 
 being sued, as if she had obtained a decree of judicial separation 
 (s. 21). These provisions extend to property to which the wife 
 becomes entitled as executrix, admiaistratrix, or trustee (e). It has 
 been held that a retrospective effect cannot be given to this order 
 — so far as it affects the rights and liabilities of third parties — and, 
 therefore, if a married woman commences an action after the 
 desertion of her husband, but before she has obtained an order, the 
 subsequent procurement of the order cannot make valid the in- 
 valid" proceeding, for it would lead to .incalculable mischief if the 
 words of the statute were construed to have that effect as regards 
 third parties (/). 
 
 The affidavit in support of an application .to the Divorce Court 
 
 (5) See In the goods of Ann Elliott, L. charge it, but the 27 & 28 Vict. c. ii, 
 
 R., 2 Prob. & Div. 274. now provides tliat his successor, or the 
 
 (c) See The Married Women's Pro- justices at subsequent sessions, or the 
 perty Act, 1870 (33 ^ 34 Vict. c. 935. court may discharge the order. 
 
 (d) It was held, in Ex parte Sharp, 33 (e) 21 & 22 Vict. c. 108, s. 7. 
 
 Law J., M. C. 152, that where the ma- (/) Mid. RaU. Co. t. Pye, 30 Law J., 
 
 gistrate who had made the order died, C. P. 315 ; 10 0. B., N. S. 179. 
 his successor had no jurisdiction to dis- 
 
SECT. l.J DESERTION — RESTITUTION OF CONJUGAL RIGHTS. 881 
 
 for an order under this section of the statute should state circum- 
 stances sufficient to satisfy the court of the fact of the desertion. 
 It should set out the time of the husband's going away, and state 
 whether the wife has had any subsequent communication with him, 
 and if so, the nature of that communication, whether she loiows 
 where he is or what he is doing, and whether she has received any 
 money from him, or any promise to contribute to her support, or to 
 return to her (g). 
 
 What amounts to desertion. — Desertion, under s. 21 of the 
 Divorce- Act, 20 & 21 Vict. c. 85, means not only that the husband 
 has absented himself from his wife, but has left her unprovided 
 for ; and such desertion must continue at the time of making the 
 order, so that a bond fide offer on the part of the husband to return 
 and provide for his wife would take away her right to have the 
 order made (h). 
 
 A married woman, whose earnings and property have been 
 protected against her husband and his creditors by an order made 
 under s. 21, on account of his desertion of her, may obtain an 
 order from the Court of Chancery for the payment of a legacy 
 given to her in general terms (i). In case of her death, also, her 
 personal property will descend to her next of kin, to the exclusion 
 of her husband (J). 
 
 Of the restitution of conjugal rights. — ^Applications for the resti- 
 tution of conjugal rights must be made to the Court for Divorce 
 and Matrimonial Causes (k). The court may compel the man and 
 wife to live under the same roof, but it cannot constrain them to 
 have intercourse with each other, nor to live together on terms of 
 conjugal affection (l). A husband who has been served with a 
 decree in a suit for restitution of conjugal rights, ordering him to 
 take his wife home, is bound to take the first step by inviting her 
 to return to him. If he does not, an attachment will be issued (m). 
 A deed of separation is no bar to a suit for the restitution of con- 
 jugal rights (n). 
 
 The doctrine of the canon law, that, where husband and wife 
 have both been guilty of adultery, there, is compen^atio criminum, 
 and both are restored to the position of innocent parties, forms no 
 part of the law of England. A suit, therefore, for the restitution 
 of conjugal rights cannot be maintained by a wife who has com- 
 
 (17) SeweU, Ex parte, 28 Law J., Prob. (I) Shelford on Marriage and Divorce. 
 
 & Matr. 8. Bogera on Ecclesiastical Law. 
 
 (h) CarciUl v. CaraiU, 27 ih. 70. See (m) Alexander y.AUmnder, 30 Law J., 
 
 poVp. 884. Prob. & Matr. 173. , 
 
 (i) Re Kingsky, 28 Law J., Ch. 80: (n) Sperinc/ v. Spenng, 3 Sw. & Tr. 
 
 {j) He Stephenson, L. K., 1 Prob. & 211 ; 32 Law Ji, Prob. & Matr. 116. See 
 
 Div. 287. Anquez v. Anquez, L. E., 1 Prob. & Div. 
 
 {h) 20' & 21 Viet. c. 85, s. 17 ; 21 & 177. 
 22 Vict. c. 108, s. 19. 
 
882 MATEIMONIAL INJtJEIES. . [CHAP. XIX. 
 
 mitted adulteiy, alttowgli the husband also has committed 
 adultery (o)v A stispension of the cohabitation must be clearly 
 proved, in order to warrant the interference of the court (j>). 
 
 Of judicial separation on the ground of adultevy, cruelty, or deser- 
 tion.-^Bj the 20 & 21 Vict. c. 85, s. 7, divorce a mensd et thoro is 
 abolished, and in lieu thereof the Court for Divorce and Matri- 
 monial Causes is authorised to pronoimce a sentence of judicial 
 separation between husband and wife, which may be obtained 
 (s. 16) either by the husband or the wife on the ground of adultery, 
 or cruelty, or desertion without cause for two years and upwards {q). 
 A decree for a judicial separation, if made in the absence of the 
 respondent, may be reversed (r). A deed of separation is no bar 
 to a suit for a judicial separation, although it may form a material 
 element for the court to consider in investigating such a Suit (s), 
 and although, if it contained a covenant by the wife not to sue for 
 a judicial separation, such a covenant might perhaps be enforced 
 in equity (f). If, after the decree for judicial separation on the 
 ground of cruelty, aad while they are living apart, the husband 
 commits adultery, the wife will be entitled to a dissolution of the 
 marriage (ti). 
 
 The wife is entitled, in the discretion of the court, to alimony 
 pendente lite (v), and an order for such is good, although she is 
 subsequently proved to have been guilty of adultery, and her 
 petition is dismissed (w). Such alimony is by the practice of the 
 court payable to her personally, but if she chooses to pay it into 
 her attorney's hands, his lien upon it for his costs will attach (ss)^ 
 
 What amounts to cruelty.— li a husband refuses his wife the 
 common necessaries of life, or treats her with gross insult and 
 indignity ; if he spits in her face, attempts to debauch her maid- 
 servants (^), or puts her unnecessarily into confinement, or under 
 personal restraint ; or strikes her, or threatens her with personal 
 violence unjustifiably, and without adequate provocation {%), and 
 conducts himself so as to give her a reasonable apprehension of 
 bodily harm if she continues to reside with him, he is guilty of 
 cruelty, and entitles her to separation of bed and board (a). 
 
 (o) H<ype V. Hope, 27 JJaw J., Prob. & [v) Thompson \. Thrni/pion, L. E., 1 
 
 Mate. 43. Prob. & Div. 553. Jones v. Jones, L. R, 
 
 (p) Orme v. Orme, 2 Add. 384. 2 Prob. & Div. 333. 
 
 ({) Brookes v. Brookes, 28 Law J., (w) Whitmore v. Whitnwre, L. E., 1 
 
 Prob. & Matr. 38. Prob. & Div. 96. See Coombs v. Coonibs, 
 
 (r) 20 & 21 Viet. c. 85, b. 23. PMUvps ib. 218. As to an injunction against the 
 
 V. PhiUvps, L. K., 1 Prob, & Div. 169. payment of alimony pendente lite, see 
 
 (») WiUiams v. Williams, L. E., 1 Prob. Williams v. BaUy, L. E., 2 Eg. Ca. 731. 
 & DiT. 178. See Williams v. Baih/, (x) Ex parte Bremner, L. E., 1 Prob. 
 
 infra. & Diy. 254. 
 
 (<) WiUiams v. Baily, infra. See (y) Saunders v. Saunders, 1 Bob. Boel. 
 
 Brown v. Brown, L. E., 7 Eq. Ca. 185. 649. 
 
 (m) Blamd v. Bland, L. E., 1 Prob. & («) Waring v. Waring, 2 Phill. 132. 
 
 Kr. 237. (a) Gregory's case, i Bnrv. 1991. Lette 
 
SECT. l.J CRUELTY. 883 
 
 Everything is, in legal construction, cruelty, which tends to bodily 
 harm, and in that manner renders cohabitation unsafe. Whenever 
 there is a tendency to bodily mischief, it is a peril from which the 
 wife is to be protected. It is not necessary to inquire from what 
 motive the treatment proceeds. Nor is it necessary that the 
 conduct of the wife should be entirely without blame, for the 
 imputation of blame to the wife will not justify the ferocity of the 
 husband. Constant insult, constant vituperation, and charges of 
 gross offences, made in the presence of the wife and before her 
 friends, servants, or strangers, and such injurious treatment as 
 renders life unbearable, constitute good grounds for a separation, 
 but mere turbulence of temper and petulance of maimers are not 
 sufficient. The assistance of the court, moreover, will iiot be 
 afforded to a wife who has taken upon herself to avenge her own 
 wrongs, and to maintain a contest of retaliation (&). In order to 
 establish the charge of cruelty, it is necessary to prove actual 
 violence of such a character as to endanger personal health or 
 safety, or the reasonable apprehension of such violence, And the 
 ground of the court's interference is the wife's (ot husband's) 
 safety, and the impossibility of her (or him) performing the duties 
 of matrimony in a state of dread (c). However, moral force only, 
 if systematically exerted to Compel the submission of a wife in 
 such a manner, and to such a degree, as to injure her health and 
 render a serious illness imminent, amounts to legal cruelty (d). 
 
 Where it appeared that a married couple had for thirty years 
 been continually quarrelling, and the wife petitioned for a judicial 
 separation, the judge held that he had no power to separate them 
 on that account ; for married persons cannot be legally separated 
 upon the disinclination of one or both of them to cohabit together 
 leading to perpetual quarrels (e). " If a woman gets drunk, and 
 loses her self-possession and uses violence, or attempts to destroy 
 the property or stock in trade of her husband, he may employ as 
 much violence as is necessary to protect his property or himself; 
 but he goes too far if he follows her away, and strikes her after she 
 has ceased her violence. The law gives a man no authority to beat 
 a drunken wife" (/). Where a husband sought to get rid of a 
 drunken and passionate wife, who destroyed his furniture, the 
 judge said, " I must be cautious about opening the court to cases 
 of this description. The wife may have an unruly propensity in her 
 
 V Leete, 31 Law J., Prob. & Matr. 121. (c) Milford v. M&ford, L. K., 1 Prob. 
 
 (6) Holden v. JSoldm, 1 Hagg. Cons. (d) KeUyx. Kelly, L. E., 2 Prob. & 
 
 458. Evans y.Evami.ib.n^. Oliver r. Matr. 31 ; j6. 59 
 
 Oliver ib 364. Paterson T. Paterson, 3 (e) Bostock T. Bostock, 27 Law J., Prob. 
 
 H. L. 0. 328. CurUs r. OurUs, 27 Law & *tatr. 87. „„,>.., 
 
 J , Prob. & Matr. 75. (/) Pearvxm v. Pewrrrum, 29 il. 54. 
 
 ' L L L 2 
 
884 MATRIMONIAL INJURIES. [CHAP. XIX. 
 
 drunken fits to destroy property, but there is no evidence of such 
 scevitia as would justify me in decreeing a judicial separation " {g)> 
 And, conversely, it has heen held, that habitual drunkenness on the 
 part of the husband, although united with much annoyance and 
 extraordinary conduct,, does not amount to legal cruelty {h). But 
 the communication to the wife of venereal disease does, if wilful, 
 and the wilfulness is to be presumed in the absence of evidence to 
 the contrary (i). 
 
 Revival of condoned cruelty. — If cruelty has been condoned by 
 the wife on condition that she is received back and restored to her 
 proper position as a wife in her husband's household and the con- 
 dition is broken by the husband, the cruelty is revived, and the 
 wife entitled to a judicial separation (j). Where there have been 
 acts of violence followed by condonation, threats subsequently 
 uttered of such a nature, and so expressed, as to satisfy the cgurt 
 that further cohabitation would be attended with danger to the 
 party threatened, constitute a sufficient ground for a decree for a 
 judicial separation (k). The doctrine of revival, however, does not 
 apply to the compromise of a divorce suit, for where a suit is in 
 derogation of the marriage contract, the court will favour an 
 arrangement that prevents the scandal of a public investigation (^). 
 
 What amoimts to desertion without cause. — ^Desertion does not 
 necessarily commence when cohabitation ceases (m). A husband 
 who absents himself from his wife for the hand fide purpose of 
 obtaining employment, and continues absent with the concurrence 
 of his wife, or without any communication to him of her disapproval 
 of his absence, or any manifestation' of a desire on her part for his 
 return to her, cannot be said to have deserted hei; within the 
 meaning of s. 16 of the Divorce Act. " I think it clear," observes ' 
 the Judge Ordinary, " that to constitute desertion without cause by 
 the husband, it must be shown that he has wilfully absented him- 
 self without cause from the society of his wife, and in spite of her 
 wish, she not being a consenting party" (n). A voluntary cesser of 
 cohabitation, therefore, upon the execution of a deed of separation, or 
 the execution of such a deed subsequently to the cesser of cohabi- 
 tation, is an answer to the charge of desertion, unless it be shown 
 that the husband had fraudulently, by a pretence of an agreement 
 Avhich he never intended to fulfil, induced her to consent to 
 
 {rj) Scott V. Scott, 29 Law J., Prob. & 81, 154. 
 
 Matr. 64. (h) Bostoch y. Bostock, 27 ib. 88. 
 
 (A) Brown v. Brown, L. R, 1 Prob. & {I) Rowley v. Rowley, L. E., 1 Sc. k 
 
 Div. 46. Div. App. 63. 
 
 (») 8. C, and Boardnmn t.. Bowriman, (m) Qaiehouse r. Cfatehouae, L. E., 1 
 
 L. E., 1 Prob. & Div. 233. See Morphett Prob. & Div. 331. See ante, p. 881. 
 
 V. Morphett, 38 Law J., Prob. & Matr. (n) Thompson v. Thompson, 27 Law J , 
 
 ^^■'.^■^■>'^^^o}>-S^Oiv.702. Prob. & Matr. 68. HavUandy. ffaviland, 
 
 {}) Ooohe V. Coolce, 32 L. J., P. & M. 32 ih. 65. 
 
SECT. l.J DESEETION — ALIMONY. 885 
 
 such separation (o). The " cause " mentioned, although not neces- 
 sarily a distinct matrimonial offence on which a decree of judicial 
 separation or dissolution of marriage could be founded, must be 
 grave and weighty. Mere .frailty of temper (unless amounting to 
 cruelty), and habits distasteful to, the husband, are not sufficient 
 causes (p). 
 
 Desertion under this section means that the husband has with- 
 drawn from cohabitation, even although he has not left his wife 
 improvided for (q) ; and such desertion must have continued 
 for two years at the time of the making of the petition for a 
 judicial separation, so that a honoifide, offer of the husband to return 
 and provide for his wife and take her home, he having a home 
 prepared for her, would take away her right to a judicial separa- 
 tion (r). But a mere vague intimation by the husband to the wife 
 that she may rejoin him, not containing any definite offer of a home, 
 will not deprive her of this right when once acquired (s). Nor is 
 an offer to return by a man who is then living with another woman 
 a honab fide one (t). Nor will the payment of an allowance by the 
 wife to the husband for a short time, or even the signing of a deed 
 of separation, prevent the desertion from being contrary to her 
 wish, if she ceased payment of the allowance shortly after the 
 execution of the deed, on the ground that it would induce him to 
 keep away {u). "When once cohabitation has ceased to exist, 
 whether by the adverse act of the husband or vrafe, or even by the 
 mutual consent of both, desertion becomes from that moment 
 impossible to either, tUl their common life and home have been 
 resumed (v). 
 
 Rights of married women after a decree for a judicial s^igaration. 
 — After a decree for a judicial separation, the wife has the legal 
 status of a /erne sole in respect of wrongs and injuries, and suing and 
 being sued in any civil proceeding, and her husband is not liable in 
 respect of any wrongful act or omission by her, or for any costs she 
 may incur as plaintiff or defendant (s. 26) {w). 
 
 Alimony in cases of judicial separation, — The Divorce Court, 
 after making a decree for a judicial separation, may also make a 
 decree or order for alimony, for her comfortable subsistence in 
 
 (o) Crahh v. Cralh, L. R., 1 Prob. & («) Nott v. NoU, L. K., 1 Prob. & Div. 
 
 Div. 601. PwrHnson. v. Pwrhinaon, L. B., 251. And see Keech v. Keecli, 38 Law J., 
 
 2 Prob. & Matr. 25. Prob. & Matr. 7. Pm-kinson v. ParUn- 
 
 (v) Yeatmom r. Yeafmim, viifra, . son, li. K., 2 Pr,ob. & Matr. 27. 
 
 (a) Yeatmm v. Yeatman, L. B., 1 Prob. (v) Fitzgerald v. FitzgeraM, 38 Law J., 
 
 & Diy. 489. ProlJ- ^ M**''- 1 ^ ; L- E.., 1 Prob. & Matr. 
 
 Ir) Oa/rahl v. Cwraill 27 Law J., Prob. 694. See Bwckmaster v. Buchtmster, h. 
 
 & Matr. 69. K., 1 Prob. & Matr. 713 ; 38 L. J., Prob. 
 
 (s) Cudiipp V. OuMvpp, ih. 64. & Matr. 73- ^ , ^ ^, ^ 
 
 («) MaUmson-r. M aUinson, Jj. K., 1 (w) See i?c /nsoie, L. E., 1 Bq. Ca. 471. 
 Prob. & Div. 93. 
 
886 MATRIMONIAL INJURIES. [CHAP. XIX. 
 
 aocordafice with her husband's income (x) and her own earnings, 
 where she is supporting herself {^), and may (s. 24) direct the same 
 to be paid either to the wife hersel£ or to any trustee on her 
 behalf, to be approved by the court, and may impose any terms or 
 restrictions which to the court may seem expedient (z) ; and if 
 alimony decreed, or ordered to be paid, is not duly paid, the 
 husband wiH (s. 26) be liable for necessaries supplied to the wife. 
 The payment of alimony will be enforced by writ of sequestration 
 if necessary (a), and the alimony may be increased by the court, if 
 the husband's income increases (&). 
 
 Of adultery and the dissolution of the marriage contract. — 
 Adultery was formerly an indictable, and for about ten years was 
 de facto a capital, oiffence, being made so by a statute passed a.d. 
 1650 (c). This statute became a nullity at the Eestoratioaa, and 
 adultery has since been held to be a mere civil injury and ground 
 for divorce. -The Divorce Act, 20 & 21 Vict. c. 85, s, 27, enacts, 
 that & husband (^d) may f)etition the court for the dissolution of the 
 marriage on the ground of adultery on the part of his wife (d), and 
 the wife (d). may petition fpr the -dissolution of the marriage on the 
 ground that her husband (d) has been guilty of incestuous adultery, 
 or of bigamy with adultery (e), or of rape, sodomy, or bestiality, or 
 of adultery coupled with such cruelty as without adultery would 
 have entitled her to a divorce a mensd et ihoro {f), or of adultery 
 coupled with desertion, without reasonable excuse, for two years or 
 upwards. But if it appears to the court ithat the petitioner has 
 been in any manner accessory to, or conniving at, the adultery .(^), 
 or has condoned it fs. 29), or that the petition is presented ©■r 
 prosecuted in collusion with either of the respondents (A), the 
 petition wiU (s. 30) be dismissed. And if in the opinion of 
 the court the petitioner has been guilty of unreasonable delay 
 in presenting or prosecuting the petition, or of cruelty towards the 
 other party to the marriage, or of having deserted or wilfully sepa- 
 rated from the other party to the marriage before the adultery com- 
 
 (k) Hooper v. Hooper, 30 Law J., in any C)Ojmti;y where polygamy is lawful, 
 
 Prob. & Matr. 49. See Haigh v. Haigh, and the court liere has no jurisdioiion 
 
 38 Law 3., Proib. & Matr. 37 ; L. K., 1 over such maa-riages, for the term mar- 
 
 Prob. & Div. 694. _ riage, as understood in Christendom, is 
 
 (y) Goodheim t. Goodheim, 30 Law J., the voluntary union for life of one per- 
 
 frob. & Matr. 162. son with another, to the exclusion of all 
 
 (z) FnmJes v. Froin^g, -SI Law J„ Prob. ©thers. Hyde v. Hydfi, L. R., 1 Prob. & 
 
 & Matr. 23. AvUa v. AvUa, ib. 176. Div. 130, 
 
 Fletcher v. Fletcher., ib. 83. (e) Home v. Horne, 27 Law J., Prob. 
 
 (o) Clinton % GUntcm, L. K., 1 Srob. & Matr. ^0. 
 
 & Div. 215. (/) Ante, p. 882. Ward v. Ward, 27 
 
 (ft) Louis V. ZoiJiiSj L. E., 1 Prob, & ib. 63. Milner v. Milner, 31 ib. 158. 
 
 Div. 2S0. See WWiHums ^. WHMams, ib. is) Wdlion-<r.WaUon,1l&ib.9i. Studdy 
 
 370. V. Studdy, ib. 105. 
 
 (c) 2 Scobell's Acts, part 2, p. 121. (h) See I'odd v. Todd, L. R., 1 Prob. & 
 
 [d) These words have no application to Div. 121. Bwnies v. Bat^nea, ib. 505. 
 the case of a union between two persons 
 
SECT. 1.] ADULTEltY AND DESERTION. 887 
 
 plained of, and without reasonable excuse (i), or of such wilful 
 neglect or misconduct as has conduced to the adultery (k), it 
 is competent to the court (s. 31) to refuse to dissolve the 
 marriage (I). The court, however,^ may, in the exercise of its 
 discretion, dissolve the marriage at the instance of the wife, 
 although she has been guilty of adultery,, if such adultery 
 was caused by the coercion of the (respondent, and was practised 
 against the wiU and desire of the petitioner (m). Misconduct con- 
 ducing to -adultery is not mere carelessness, but a kuowledge by 
 the husband of an intimacy distinctly dangerous, and a purposed 
 or reckless disregard of it (n). 
 
 A suit for dissolution of marriage cannot be maintained against 
 a lunatic on any ground whatever (o) ; and if, at the time of the 
 service of the citation, the respondent is so mentally deranged as to 
 be unfit to aaswer the petition or to instruct her a;ttorney, the suit 
 will be stayed till she recovers her mental capacity .(jp). But the 
 committee of a lunatic may maintaiia a suit for a judicial separation 
 on the, ground of the adultery of the wife of the lunatic {§). And 
 a suit for nullity of marriage may be mmntained by & lunatic 
 through a guardian appointed by the court (r). 
 
 AdtdUry and desertion on the part of the husband giving the wife 
 a right to a dissolution of the m-arriage must, therefore, continue for 
 two years or upwards without reasonable excuse. Where the hus- 
 band on being reproached with his adulterous connection, declared 
 he would go away amd live with his paramour, and his wife said, 
 " fio, and when you are tired of her, come back to me," and the 
 husband took up his hat, but before he got out of the house his 
 wife made him promise that he would return to her, but he never 
 came back, and, two years and upwards having elapsed, the 
 wife sued for a (^ssolution of the marriage, it was held that she 
 had given no such assent or ganctiom to the desertion as disentitled 
 her to a decree (s), A wife is not deprived of her right under s. 27 
 to a divorce on the ground of adultery eoupled with desertion, for 
 two years and upwards, by a subsequent offer on the part of the 
 husband to return and cohabit wi& her (t). 
 
 (i) Ootdtluwt T, Go^U?lart^ 28 Law J., (n) Bpring v. Depng, L. E,, 1 Prqb. & 
 
 Prob. & Miitr. 21 Yeatman v. Teatmam, Div. 531. 
 
 jL. E. 2 Prjjb. & Div. 187. (o) BawAen v. Bcmdm, 31 Law J., 
 
 '(k)'j)u Terraim t- -0« Terrmtx, 28 Law Prob. & Matr. 94. See Mordauni v. Mor- 
 
 J., Prob. & Matr. &5. -Cwrmington y. dmnt, L. E., 2 Prob. & Matr. 382. 
 
 Cvnnmgton, ih. 101. Orovee t. fymes, (p) Mordmmt t. MordoMitt, L. R., 2 
 
 a. 108. BamoeU v. Haswett, 29 ib. 21. Prob. & Div. 109, diss. Kelly, O.B. 
 
 Muahes v. Huqheg, L. K., 1 Prob. & Div. (?) Woodgate v. Naylor, 30 Law J., 
 
 2] 9; Prob. & Matr. 197. 
 
 (i) Boreham v. Boreham, L. B., 1 Prob. (r) Eammih v. Peaty, L. R., 1 Prob. & 
 
 & Div. 77. Zempriere t. Lempriere, ii. Div. 335. 
 
 ggg (s) Savilamd v. HmUand, 32 Law S., 
 
 (m) OoUman t. 'Cokimn, L. E., 1 Prob. Prob. & Matr. 65. 
 
 & Div. 81. («) Owrgill t. CmgiU, 27 ib. 69. 
 
888 MATRIMONIAL INJURIES. [CHAP. XIX. 
 
 Wilful neglect or misconduct on the ;pairt of the husband conducing 
 to advMery on the •part of the wife.—Ta.Q policy of the legislature 
 seems to have been to deprive the husband of a remedy by divorce 
 if he has misconducted himself as a husband, and has contributed 
 to his own dishonour {u), not to punish neglect or misconduct un- 
 connected with the relation of husband and wife. The neglect or 
 misconduct of the husband, therefore, which disentitles him to a 
 divorce, must be in his marital capacity, and a breach of some 
 marital duty. If, therefore, the husband is convicted of felony 
 and transported, and the wife, being deprived of the protection of 
 her husband, then lives in adulterous intercourse with another 
 man, the conviction and transportation of the husband do not con- 
 stitute misconduct in the husband disentitling him to a divorce (■«). 
 So, where an infant under age, who had contracted a clandestine mar- 
 riage with a prostitute, was sent out of the country by his guardians 
 and prevented from communicating with his wife, and the wife 
 relapsed into her old trade of prostitution, it was held that the in- 
 voluntary desertion of -the wife by t'he infant husban^ fori^ed no 
 bar to a suit by him for the dissolution of the marriage (w). But 
 where a person, having married a woman of loose character, sepa- 
 rated himself from her agaiust her will, and sent her to live at a 
 place where she would be peculiarly subject to temptation, and she 
 committed adultery accordingly, it was held that the husband's 
 conduct had conduced to it (ic). The neglect, however, intended by 
 the legislature is neglect conducing to the wife's original fall, not 
 neglect conducing to any particular act of adultery committed sub- 
 sequent to her fall (y). 
 
 Connivance or toleration of adultery on the part of the husband 
 will deprive him of his right to the dissolution of the marriage. 
 If, therefore, a husband, finding that his wife has committed adul- 
 teiy, forgoes his claim to a divorce in consideration of a sum of 
 money, not condoning the offence, but allowing her to remain his 
 wife, and allowing his remedy to be barred by a verdict in favour 
 of the respondent and co-respondent, he wUl be taken to have 
 given a tacit consent to any future intercourse between her and her 
 paramour. A man so acting withdraws his objection to the inter- 
 course that has taken place, and sells his assent to the prostitution 
 of his wife, and cannot afterwards complain of that which he has 
 himself sanctioned. A man consenting to adultery with A, but 
 not consenting to adultery with B, cannot make the adultery with 
 
 (tt) Jeffreys t. Jeffreijs, 33 Law J., Prob. (a;) Ba/yUs v. Baylis, L. B., 1 Prob. & 
 
 & Matr. 84. Div. 395. 
 
 (») Cunnington v. Curmington, 28 iJ. (y) St. Paul t. St. Paul, L. E., 1 Prob. 
 
 101. & Matr. 439 ; 38 L. J., Prob. & Matr. 
 
 (w) Beavcm v. Beavan, 32 ib. 36. 57. 
 
SECT. 1.] CONNIVANCE OE CONDONATION OF ADULTERY. 889 
 
 B a ground for a dissolution of the marriage. He cannot be heard 
 to say non omniJms dormio, or non semper dormio. Such language 
 and such conduct are not be endured. Connivance, therefore, by 
 the husband to any one act of criminal intercourse on the part of 
 the wife, may deprive him of redress by a dissolution of the mar- 
 riage for a subsequent act of adultery not tolerated or connived at 
 by him (z). To establish connivance, it is requisite, not that the 
 person conniving should be actually an accessory before the fact 
 by doing anything to bring about the adultery, but that he should 
 be cognizant that it would or must result from certain transactions 
 that he approved of, and* consented to (a). Mere negligence, mere 
 inattention, mere dulness of apprehension, mere indifference, will 
 not suffice, there must be an intention on the husband's part that 
 the wife should commit adultery. If such a state of things existed 
 as would, in the apprehension of reasonable men, result in the wife's 
 adultery, and the husband, intending and desiring such a result, 
 refrains from interfering to prevent it, when he might have done 
 so, he is guilty of connivance (&). 
 
 Connivance on the pari of the wife. — An agreement to live sepa- 
 rate would amount to connivance if it were made with knowledge 
 of the adultery compaitted by the husband and the probability of 
 its continuance, even although it might be forced upon the wife 
 by the pressure of circumstances — e. g., to obtain an allowance (c). 
 
 Condonation of adultery is forgiveness of the conjugal offence, 
 with fuU knowledge of all the circumstances {d). "Judges of 
 great eminence have said, that there is a great difference between 
 what would constitute condonation of the adultery of the husband 
 and what that of the wife ; that conduct which would be considered 
 culpable in a husband would be praiseworthy in a wife ; that for- 
 giveness on the part of the wife, in the hope of reclaiming her 
 husband, would be meritorious, while a similar forgiveness by the 
 husband would be dishonom-able. Passages to this effect abound 
 in the judgments of Lord Stowell and Sir J. Mcholl" (e). The 
 forgiveness of a wife, which is to take away the husband's right to 
 a* divorce, must not fall short of reconciliation, and this must be 
 shown by the reinstatement of the wife in her former position, so 
 that subsequent conjugal cohabitation must be proved. Mere 
 words of condonation, however strong, can only be regarded as im- 
 
 (z) Gippg V. Oipps, 32 Law J., Prob. & (c) Boss v. Boss, L. E., 1 Prob. & Matr. 
 
 Matr. 78. Zovermg v. Lovermg, 3 Hagg. 734. 
 87 Orewe v. Crewe, ib. 126. (d) Dempster v. Dempster, 31 L. J., P. 
 
 (a) Olennie v. Glennie, 32 Law J., Prob. & M. 20. See Newsome v. Newsome, L, 
 
 & Matr. 17. PhiUips v. PhiUvps, 31 ib. B., 2 Prob. & Div. 306. 
 69 Allen v. Darcy, 30 ». 4. (c) Peacock v. Peacock, 27 Law J., 
 
 (6) Alhn V. AUen, 30 ih. 4. Marria t. Prob. & Matr. 71. 
 Marris, 31 ib. 69. 
 
890 MATRIMONIAL INJURIES. [CHAP. XIX. 
 
 perfect forgiveness, and unless followed up by reconciliation and 
 the reinstatement of the wife in the pbsition she occupied before 
 she transgressed, are incomplete, and do not amount to legal con- 
 donation. There is no legal condonation where the act of forgive- 
 ness has not been accompanied or followed by conjugal cohabita- 
 tion (/). 
 
 The raot of the adultery of one of the parties having been con- 
 doned is 'HO bar to a petition for a divorce on account of adultery 
 afterwards committed by the other (g), provided there has been no 
 cbnnivance in, or sanction of, the adulterous intercourse (A). The 
 adultery of the wife, therefore, if it has been condoned by 
 the husband, is no bar to a suit by her for a judicial separation on 
 the ground of adultery subsequently committed by him (*). 
 
 When the issues are to be tried by a jury, the question whether 
 or not tliere has been condonation is a question of fact to be decided 
 by the jury, and not a question of law. It is for the court 
 to direct the jury what will constitute condonation, and for the 
 jury to determine whether, subject to that direction, the cir- 
 cumstances of the particular case amouat to condonation (_;'). 
 
 Alimotay in cases of dissolution of marriage. — On a deciree (k) 
 for a dissolution of marriage, the oomrt may (s. 32) order the 
 husband to secure such a sum of money for the support of tte wife 
 as it may deem reasonable, having regard (s. 32) to the wife's 
 fortune, the ability of the husband, and the conduct of the 
 jDarties (Z). And the payment may be ordered to be made weekly 
 or monthly, 29 & 30 Vict. c. 32, 
 
 Orders for the settlement of property for the henefvt of the irmoomt 
 ■party and children of the marriage may be made as to the property 
 of the wife, where a sentence of divorce or judicial separation has 
 been founded on adultery committed by her (m). 
 
 Power of the Divorce Gowrt over wm/rfmg&sMeme'nis. — By 
 22 & 23 Vict. c. 61, s. 5, it is enacted, that the Court of 
 Divorce, &c., after a final decree of nullity of maa-riage, or dissolution 
 of marriage, may inquire into the existence of ante-nuptial or post- 
 nuptial in) settlements, made on the parties whose marriage is the 
 subject of the decree, and may make such orders with reference to 
 the application of the whole, or a portion of th^ property settiesd, 
 either for the benefit of the children of the maxriage (o), or of their 
 
 (/) KmU V. KeaU, 28 Law J., Prob. Q) Fiaher v. Fisher, 31 Law J., Prob. 
 
 & Matr. 78. & Matr. 1. Morris v. Morris, ib. 33. 
 
 (g) Armhim'y. Anichmi, 2 Curt. 210. Molatham v. Mobotham, 27 ib. 61. 
 
 (A) Giipps V. Gipps, ante, p. 889. (ra) 20 & 21 Vict. c. 85, s, 45 ; 23 & 24 
 
 (i) Seller v. Sellm; 28 Law J., Prob. & Vict. c. 144, s. 6. Milme v. MUm, L. E., 
 
 Matr. 99. 2 Prob. & Div. 295. 
 
 (}) Peacock t. Peacock, 27 Law J., (») Bullock v. BtiUoch, L. E.., 2 Prob. 
 
 Prob. & Matr. 71. & Matr. 389. 
 
 (k) i.e., on the final decree, Ohwrles v. (o) Paul v. Paid, L. &., 2 Prob. & 
 
 Cha/rles, L. K., 1 Prob. & Div. 250. Matr. 93. 
 
SECT. 1.] OliDEES FOE' CU8T0DY, ETC., OF CHILDKEN. 891 
 
 respective parents, or botb (p), as to the court shall seem fit (q). 
 \Vhere there is no issue of the marriage, or if there has been and 
 the children are dead, the court cannot vary or alter the marriage- 
 settlements (?'). The court will not, at the prayer of an adulterous 
 wife, deprive an innocent husband of any interest he takes under a 
 settlement, however much it may benefit the children of the mar- 
 riage (s). In making an order under the above section, the court 
 will take into consideration the conduct of the parties, as well as 
 their pecuniary position (t). 
 
 Orders rejecting the custody of children, — In any suit or 
 proceeding for obtaining a judicial separation, or a decree of nullity 
 of marriage, and on any petition for dissolving a marriage, the 
 court may from time to time, before making its final decree, make 
 such interim orders (u), and may make such provision in the final 
 decree, as it may deem just and proper with respect to the custody, 
 maintenance, and education of the children, the marriage of whose 
 parents is the subject of such suit or other proceeding, and may, if 
 it shall think fit, direct proper proceedings (y) to' be taken 
 far placing such children under the protection of the Court of 
 Chancery, 20 & 21 Vict. c. 85, s. 35. The power of the court under 
 this section of dealing with the custody of and access to children 
 exists only where there is a suit for obtaining a judicial separation, 
 a decree of nullity, or of dissolution of marriage. Where a petition 
 for dissolution of marriage, therefore, is dismissed, the court has no 
 power to make an order as to the custody of, or access to, the 
 children of the marriage (w). The words, "just and proper," are to 
 be construed with reference to the circumstances affecting the suit, 
 and not merely with reference to the rules by which courts of equity' 
 and of common law have been governed in questions respecting the 
 custody of infants (x). 
 
 The above Act only applied to orders made before or as part of 
 the final decree, but by the 22 & 23 Vict. c. 61, s. 4, it is enacted, 
 that after a final" decree of judicial separation, nullity of marriage, 
 
 (p) Mwrch V. Mm-ch, L. R., 1 Prob. & Prob. fc Matr. 39. See Smith t. Smith, 
 
 Matr 440 L. R., 1 Prob. & Div. 587. 
 
 (a) Johnson v. Johnson, 31 Law J., («) Ghetwynd v, Chetwynd_, L. E., 1 
 
 Prob. & Matr. 29. " Pearce v. Fearce, 80 Prob. & DiT. 39. March v. March, 
 
 ib. 182. Morne v. fforne, ib. 200. If the siiipra. 
 
 fund is in the Court of Chancery, appli- («) Thompson v. Thompson, 31 Law J., 
 
 cation must be made to such court to Prob. & Matr. 213. , „„ ^ 
 
 carry out the order, Pratt v. Jenner, L. E., (v) Milford v. Milford, 38 Law J., 
 
 1 Oh App 493. ^™''- ^ ^^'■■- ®^- 
 
 (r) Dempster v. Dempster, 31 Law J., (jo) Scddon v. Seddon, 31 Law J., Prob. 
 
 Prob & Matr. 113. Thomas v. Thomas, & Mati-. 101. 
 
 2 Sw & Tr. 89.' Oorrance v. Corrance, (x) Ma/rsh v. Marsh, 28 ib. 16 ; 2 Sw. 
 LEI Prob & Matr. 495. Oraham v. & Tr. 276. See Chetwynd t. Ohetwynd, 
 Graham, L. E., 1 Pro'^. & J>iv. 711. L. E., 1 Prob. & Diy. 39. Barnes v. 
 Syhex V. Sykes, L. E., 2 Prob. & Div. 163. °~— -'■ 
 
 (s) Thompson v. Thompson, 32 Law J., 
 
892 ,' MATRIMONIAL ■ INJURIES. [CHAP. XIX. 
 
 or dissolution of marriage, the court may, upon' application (by 
 petition) for this purpose, make, from time to time, aU such orders 
 and provisions with respect to the custody, maintenance, and 
 education of the children, the marriage of whose parents was the 
 subject of the decree, or for placing such children under the pro- 
 tection of the Court of Chancery, as might have been made by such 
 final decree, or by interim orders, in case the proceedings for 
 obtaining such decree were still pending ; and all orders under this 
 enactment may be made by the Judge Ordinary alone, or with one 
 or more of the other judges of the court (y). In the interval 
 between a decree nisi for dissolution of marriage being pronounced 
 and its being made absolute, the only order the court can make as 
 to the custody of childrfen, is an interim order under s. 85 of 
 20 & 21 Vict. c. 85 (z). 
 
 The court under these statutes has no greater power over infants 
 than parents themselves have at common law. It cannot, therefore, 
 interfere with the liberty of children where the parents themselves, 
 if living together unsuspected, could not interfere with it. It 
 may order maintenance for children up to the age of twenty-one, 
 for that is conferring a benefit upon them, but it cannot control 
 them in the free choice of a residence after' the age of sixteen (a). . 
 Up to that age, however, it has jurisdiction under s. 35 to make 
 orders as to their custody (6). 
 
 When a wife has been proved to have been guilty of adultery, 
 the court will not give her access to, or the custody of, the children 
 of the marriage (c). It is otherwise as to access in the case 
 of cruelty only (d). 
 
 In all suits and proceedings, other than proceedings to dissolve 
 any marriage, the court is to proceed and give relief (s. 22 of 21 & 22 
 Vict. c. 108), on principles and rules as nearly as may be conform- 
 able to the principles and rules on which the ecclesiastical courts 
 have hitherto acted and given relief. 
 
 As, in the ecclesiastical courts, acts of cruelty to children, com- 
 mitted in the presence of the mother, have, in some instances, been 
 held cruelty to her, such acts may be alleged in a petition to the 
 Divorce Court, praying for a judicial separation on the ground 
 of cruelty, and also for an order respecting the custody of the 
 children of the marriage ; but at the hearing the court will confine 
 the inquiry to the conduct of the husband and wife. In the 
 majority of cases, enough will come out in the course of the 
 
 (y) Webster v. Webster, 31 Law J., (6) MaUimon v. MaUinson, L. K., 1 
 
 Prob. & Matr. 184. Milford v. Milford, Prob. & Div. 221. 
 
 L. R., 1 Prob. & Matr. 715. (c) Bent v. Bent, 30 Law J., Prob. & 
 
 (z) Cuble;/ t. Oubletj, 31 Law J., Prob. Mala-. 175. Clout v. Clout, ib. 176. 
 
 & Matr. 161. {d) Bacon v. Bacon, L. K., 1 Prab. & 
 
 (a) Ryder v. Ryder, 30 ib. 44. Div. 167. 
 
SECT. 1.] . CUSTODY OF CHILDREN. 893 
 
 inquiry to enalDle the court to give directions as to the custody 
 of the children, and where this is not the case the court will require 
 further evidence to be given before making any decree (e). The 
 court will not deal with a petition for custody of children*under the 
 22 & 23 Vict. c. 61, s. 4, until both parties are before it (/). 
 
 Of the common law right of fathers to the custody of their infant 
 children. — Every father has a right by the common law to the 
 exclusive custody of his legitimate infant children, although they be 
 within the age of nurture (g), and with this right the Court 
 of Probate and Divorce will not interfere under the Acts we have 
 just been considering, unless the father is notoriously leading 
 a dissolute life (h), or there are other circumstances rendering the 
 transfer of them to the custody of the m'other just and proper (i). 
 If the father has been deprived of the custody of his children, it 
 wlU be restored to him both by the courts of common law and the 
 Court of Chancery (post, s. 2), so long as he has not by immorality 
 and misconduct disqualified himself from being the legal guardian 
 of his children, and forfeited his claim to the assistance of the 
 court. A contract by the father for the abandonment of these 
 rights, and for the maintenance and education of the child by 
 a relation, or any other person, does not prevent him from claiming 
 the custody of the child, and requiring the child to be delivered up 
 to biTn ( j). But when a parent has committed the care of an infant 
 child to a relation who has brought it up, and had the guardian- 
 ship and control of it for a lengthened period, the Court of 
 Chancery will not interfere, and will not compel the restoration 
 of the child to the parent, if the effect of the proceeding would 
 be productive of serious injury to the position and prospects of the 
 child (/<;). 
 
 Whenever an infant is in the custody of the mother, or of any 
 third party, the courts of common law will compel her or the person 
 having the child to deliver it into the custody of the father, unless 
 it appears to the court that the child will be improperly restrained. 
 or its morals contaminated, by being placed in the father's 
 custody (T). The power of the father over the child seems to 
 be subordinate, even in a court of common law, to the higher 
 interests of the state ; so that the court will not interfere in favour 
 of a father who has been convicted of felony, and who is manifestly 
 
 fel Suaaate v. Sugqate, 28 Law J., (i) See Swmes v. Ba/mes, ante, p. 891. 
 
 Prob &Matr.46. (j) Meg. y. Smith, 22 Uw J., Q. K 116. 
 
 (f) Stacev V. Stacey, 29 Law J., Prob. (k) Lyon? v. BlenJcin, Jao. 245. Pres- 
 
 & Matr 63. Browne's Div. Pract., 2n(i ton, In re, 5 D. & L. 233 ; 17 Law J., y. B. 
 
 ed p' 125 etseq 221. Fynn, In re, 2 De Gex & Smale, 
 
 7q)' Owrtledge v. Oarlledge, 31 Law J., 457 ; Anon. 2 Sim. N. S. 54. 
 
 Prob & Matr. 85. (^) Cresswell, J., HakewiU, In re, 12 
 
 (hi March V. March, L. E., I Prob, & C. B. 232. M'fleUan, Ex parte, 1 Dgwl. 
 
 Matr. 437. P. 0. 81 ; 13 C. B. 680. 
 
SW MATRIMONIAL INJtKIES. • [CHAP. XlX. 
 
 an improper person to iiave the guardianship of the infant (m). The 
 courts of common law have authority to restore the father to his 
 rights, hut they have no power to compel him to perform his duty. 
 
 Although a father is entitled to have the custody of his children 
 up to their attaining the age of twenty-one years, the courts of law 
 will not interfere, by haieas corpus, to withdraw a female child 
 from the custody of persons with whom it may he, and hand 
 it over to the custody of the father, if the child has attained 
 the age of sixteen years. Up to that age; a female child is 
 not entitled to withdraw herself from the father's protection, when 
 there is nothing to show that he will not exercise proper parental 
 care and protection over her ; and persons who induce girls to leave 
 their fathers before that age incur great danger of being convicted 
 of abduction (n). Parental control, however, ceases at the age of 
 sixteen, so that a girl, after that age, has a right to say that 
 she will not be controlled by either, or by both parents, as to where!, 
 or with whom, she will live (o). 
 
 Right of guardians for nurfiir& to the custody of infant children. — 
 Guardianship for nurture continues until the child has attained the 
 age of fourteen years, and a guardian for nurture may, by hctbeas 
 corpus, get possession of the child during that period, unless it be 
 shown that he is scandalously immoral, or wants the child for an 
 improper purpose (p), for every guardian for nurture has by law 
 a right to the custody of the child (§'). 
 
 InaUlity of courts of common law to interfere with the right of 
 the: father to the, custody of his ehildrert.^— The courts of common 
 law have professed themselves incompetent to control the right of 
 the father to the custody of his infant children, and have decided 
 that they have no power to interfere to take an infant child from 
 the custody of its father, except for the purpose of preventing 
 improper and unjustifiable restraint of the person of the child, and 
 protecting it from personal ill-usage and gross cruelty. Thus, 
 where an Englishwoman married a Frenchman, and then separated 
 herself from him on account, as she alleged, of ill-treatment, taking 
 with her her infant at the breast, only eight months old, and the 
 foreign husband came to her house, seized the child, carried it 
 away with him half-naked in inclement weather, the Court of 
 Queen's Bench held that it could not interfere for the purpose of 
 taking the child from the father and restoring it to the mother, as 
 the father had by the common law an undoubted right to the 
 
 (m) Blissefs case, Lofft. 748. iJeas v. (o) Rj/der v. Ryder, 30 Law J., Prob. & 
 
 Wilson, i Ad. & B. 645, n. jBailey, Ex Matr. 44.; 
 
 parte, 6 Dowl. P. C. 311. (p) Mce, In re, 26 Law J., Q. B. 169. ' 
 
 (re) Reg. t. Howes, 30 Law J., M. C. , (q) Com. Dig. Guardian (D). 
 47. Beg. v. Timmms, ib. 45. 
 
SECT. 1.] CUSTODY OF CHILBEEN. 895 
 
 custody of his chilrl (r). And the courts of comHion law have 
 decided that they have no j arisdictiou to interfere to take a child 
 out of the custody of its father, although the father's cruelty to 
 the mother has rendered it impossible for her to live with him, 
 and he is himself confined in gaol, and cohabiting there with a 
 profligate woman, who takes the child daily to the prison to see 
 him (s). 
 
 Of the controlling power of the Court of Chancery over the father's 
 right to the custody of Ms infant children. — The Court of Chancery, 
 on the other hand, representing the sovereign as parens patriee, 
 exercises a general control over the maintenance and education of 
 all the Queen's subjects within its jurisdiction, and will restrain 
 the father from acquiring possession of the person of his infant 
 children when he has deserted their mother, and has by immoral 
 conduct proved himself to be imfit to have the guardianship of 
 them, and the interference of the- court is necessary to protect the 
 child from temporal ruin or spiritual peril (t). When the conduct 
 of the father has been such as to render it impossible that the 
 wife can live with him, and the court has therefore the duty 
 cast upon it of deciding whether the children shall be brought up 
 by one parent or the other, it will adopt that custody which seems 
 best for the interests of the children. 
 
 The grotmds upon which the court has deprived a father, who 
 has deserted, or driven away his wife, of the custody of his child- 
 ren, and placed them under the care of the mother, or a guardian 
 appointed by the court, are, notorious impiety and irreligion, 
 profligacy and adultery (m), teaching the children to swear, and 
 introducing them to low company and immoral companions J^) ; 
 the public avowal by the father of his being an atheist, and the 
 publication by him of books deriding the truth of the Christian reve- 
 lation and denying the existence of God (w). There are no bounds 
 to the interference of the Court of Chancery with the rights of the 
 father to the custody of his children, whenever his misconduct has 
 brought about a separation between himself and the mother of 
 • those children, and his natural rights to the custody of them clash 
 with their true interests ; but it is a jurisdiction which the court 
 is extremely reluctant to exercise («), and it will not be exercised 
 upon the mere consideration of what may be manifestly for the 
 benefit of the children. 
 
 iJ\ mrmerEx parte, 9 Moore, 278. Wm-de t. Warde, 2 PhiU. 791. 
 M^Kj^ZmeTi M. 255 ; 4 Ad. ^ W WellesUy y. WeBesley, 2 Bligh, N. S. 
 
 ^ ft] Thomas V. mens, 3 De Gex & (») SMUy v. Westbro^e, Jao. 266. 
 
 Smale, 781 ; 19 Law J., Ch. 506. Creuzc {x) Ld Cranworth, Hope v. Hope, 23 
 
 T. Hunur, 2 Cox, 242. Law J., Oh. 689. 
 
896 , MATEIMONIAL INJURIES. [CHAP. XIX. 
 
 Before the jurisdiction can be called into action, the court 
 must he satisfied, not only that it has the means of acting safely 
 and efficiently, hut that the father has so conducted himself as to 
 render it essential to the safety of the children, or to their welfare 
 in some very serious respect, that his acknowledged rights should 
 be superseded or interfered with (y). The mere fact of the father's 
 having committed adultery, or of his keeping up an adulterous 
 intercourse and being separated from his wife, has been held not 
 to be sufficient of itself to warrant the interference of the court 
 with his natural right to the custody of his children (z). But it is 
 now competent to the Divorce Court, whenever a decree has been 
 pronounced for a judicial separation by reason of the adultery of 
 the husband, to order the infant children of the marriage to be 
 placed under the custody of the mother {ante, pp. 891, 892). 
 
 When the Court of Chancery is compelled, in consequence of 
 the profligacy or immorality of the father, to remove female 
 children from the contamination of his example, it will not accom- 
 pany that measure with the great evil of separating one portion of 
 the family from the other ; " for if one child were to be brought 
 up by the father and the other by the mother, that very circum- 
 stance would create factions in the family, which it is the bounden 
 duty of the court, as far as possible, to guard against." (a). 
 
 Jurisdiction of the Court of OluMwery over the custody of tlie 
 children of British subjects born abroad. — ^According to the doctrine 
 of our law, the sovereign, as parens patrice, hds an interest in the 
 maintenance and education of all its subjects, whether they be 
 resident within the realm or domiciled, abroad. The child of a 
 British father, born abroad, is a British subject, and is, to all 
 intents and purposes, to be deemed as if born in England ; and the 
 Court of Chancery, as representing the sovereign, will afford its 
 aid, when requisite, in favour of the children of British subjects 
 born abroad. Belief may be sought, and the jurisdiction of the 
 court exercised, on behalf of an infant that .is not, at the time the 
 jurisdiction is asked for, within the control of the court. It may 
 be that a child is out of the jurisdiction under such circumstances,, 
 that no jurisdistion can be exercised because no order can be 
 enforced ; and in such a case there is not a want of jurisdiction, 
 but a want of power of enforcing jurisdiction. If persons abroad 
 have property here, the court will proceed against that property 
 to enforce obedience to its decress (&). 
 
 Jurisdiction of the Court of Chanceoy over the children of 
 foreigners in this country. — The Court of Chancery exercises the 
 
 (2^) BeCwHis, 28 Law J. Ch. 458. (a) Warde v. Warde, 2 Phill. 791. 
 
 (z) Ball V. Bcdl. 2 Sim. (b) Mope v. Hope, 23 Law J., Ch. 68(5. 
 
SECT. 1.] CUSTODY OF, AND ACCESS TO, CHILDREN. 897 
 
 same jurisdiction over the custody of foreign cMldren in this 
 country that it does over native children ; and the reason is, that 
 foreign children, as well as foreign adults, owe allegiance to the 
 crown, and are, to a certain extent, subjects of the crown, as long 
 as they are in this country (c). But, although guardians in this 
 country have been appointed, the court will not from any con- 
 siderations of supposed benefit to foreign infants, interfere with 
 the discretion or custody of a guardian who has been appointed 
 by a foreign court of competent jurisdiction, and who wishes to 
 remove them back to their native country to complete their educa- 
 tion there (d). 
 
 Sight of access of mothers to their infant children and to the 
 custody of children under seven years of age. — The 2 & 3 Vict. c. 54, 
 s. 1, enables the Lord Chancellor and the Master of the EoUs, upon 
 the petition of the mother of any infant in the sole custody or 
 control of the father, or of any person by his authority, or of any 
 guardian after the death of the father, to make order for the access 
 of the petitioner to such infant, at such times, and subject to such 
 regulations as he shall deem just. The Lord Chancellor and the 
 Master of the Eolls are also empowered (ss. 3, 4), on tlie petition 
 of the mother of any infant under the age of seven years, to order 
 that such infant shall be delivered to, and remain in the custody 
 of, the mother, until the infant attains that age ; but no order is to 
 be made in favour of any mother against whom adultery shall be 
 established. This statute does not destroy the right of the father 
 to the sole custody of his infant child, but introduces new elemenjis 
 and considerations under which that right is to be exercised. 
 "The Act," obser^'es Sir G. Turner, V.C., "proceeds upon three 
 grounds. First, it assumes and proceeds upon the existence of 
 the paternal right. Secondly, it connects the paterngil right with 
 the marital duty, and imposes the marital duty as the condition of 
 recognising the paternal right. Thirdly, the Act regards the 
 interest of the child, for on no other grounds can I account for the 
 distinction taken between the cases of children above and under 
 seven years of age. These three grounds, then— the paternal right, 
 the marital duty, and the interest of the child — are to be kept in 
 mind in deciding any case imder this statute." Unless there has 
 been a clear neglect by the father of his duty as a husband in some 
 important particular affecting the interests of the child, the court 
 will not deprive him of his right to the custody of it ; nor will 
 it interfere to give the wife access to the child if it be proved 
 that she is an habitual drunkard, or that intercourse between the 
 
 (c) ffope V. Hope, 23 Law J., Ch. 688 j (d) Nugent v Vetura. L. H., 2 Eq. Ca. 
 
 SEq. B. 1047, /S. C. '04- See i?osto- v. i^rani/, 2 Ch. Ca. 237. 
 
898 PEOCEEDINGS IN DIVOECE CODET. [CHAP. XIX. 
 
 mother and child would be likely to be prejudicial to the interests 
 of the child (e). Although the child is, at the time of the. presen- 
 tation of a petition by the mother, and continues to be, in the 
 custody of the mother, the Court of Chancery has, -within the 
 equity of the Act, jurisdiction to interfere (/). 
 
 0/ the right of the mother to the custody of her children ofi the 
 d^ath or transportation of the father. — On the death of the father, 
 the surviving mother has an absolute right to the custody of her 
 infant children (jf), and if the father is convicted of felony, and 
 sentenced to be transported, the courts of common law will grant a 
 habeas corpus to bring up the infants, that they may be delivered 
 to the inotheir Qi). 
 
 Of the obligation of parents to provide for their children. — By 
 the common law, a father who gives no authority to another, and 
 enters into no contract, is no more liable for goods supplied to his 
 child than a brother, or an uncle, or a mere stranger would be. 
 " In order to bind a father in point of law for a debt incurred by 
 his son, you must prove that he has contracted to be bound, just 
 in the same manner as you would prove such a contract against 
 any other person" (i) ; but the 43 Eliz. c. 2, s. 7, for the relief of 
 the poor, provides that the father and grandfather, and mother and 
 grandmother, and the children of every poor, old, blind, lame, and 
 impotent person, or other poor person not able to work, being of 
 sufficient ability, shall at their own charges, relieve and maintain 
 every such poor person ; and the 4 & 5 Wm. 4, c. 76, s. 56, pro- 
 vides, that all parish relief given to the wife or to a child under 
 the a,ge of sixteen, not being blind, or deaf, or dumb, shall be con- 
 sidered as given to the husband or parfent, as the case may be, iand 
 may be treated (s. 58) as a loan to the latter, and may be re- 
 covered in the mode thereby appointed (s. 59.) A child left to 
 starve, therefore, must apply to the parish, and the parish will 
 compel payment of subsistence-money from the parent (k). 
 
 Uvidence on the hearing of petitions-^Oompeiency of the husband 
 and wife to give evidence. — By the 32 & 33 Vict. c. 68, the excep- 
 tion contained in the 14 & 15 Vict. c. 99, s. 4, and 16 & 17 Vict, 
 c. 83, s. 2, as to husbands and wives not being competent or com- 
 pellable to give evidence against each other " in any proceeding 
 instituted in consequence of adultery " (Q, is repealed (m), and the 
 
 (c) HalMday, In Te, 17 Jur. 56. under an order of the Court of Chancery, 
 
 .(/) Tomlinson, In re, 3 De G. & Sm. see BaeeUy v. Border, L. K., 3 Q. B. 659. 
 
 8?2. (Jc) SkeUon v. Springetl, 11 C. B. 452. 
 
 (g) 2 & 3 Vict. 0. 54, s. 1. See The Married Women's Property Act, 
 
 {k) Bailey, ExpaHe, 6 Dowl. P. C. 311. 1870 (33 & 34 Vict. c. 93), a. 14. 
 
 if) Ld. Abinger, Mortimore t. Wright, (l) See Blackhorne v. Blacliborm, L. E.., 
 
 6 M. & W. 487. See Suttmger v. Temple, 1 Prob. & Diy. 563. 
 
 33 Law J., Q. B. 1 ; 4 B. & S. 491. ' (m) See He RideouVi Trmti, L. R., 10 
 
 ■Where the child is living with its mother, Eq. Ca. 41. 
 
SECT. 1.] TBIAL OF QUESTIONS OF FACT. ' 899 
 
 3rd. section of the first-mentioned Act provides that the parties to 
 any proceeding instituted in consequence of adultery, and the hus- 
 bands and wives of such parties, shall be competent to give evidence, 
 provided that no witness, whether a party to the suit or not, shall 
 be bound to answer any question tending to show that he or she 
 has been guilty of adultery, unless such witness has already given 
 evidence in disproof of his or her alleged adultery. But this pro- 
 vision is for the protection of the witness only ; if, therefore, the 
 witness is willing to give evidence, counsel cannot exclude it (m). 
 
 Previously to the first-mentioned Act it was enacted by the 22 & 
 23 Vict. c. 61, s. 6, that on any petition presented by a wife, praying 
 that her marriage might be dissolved by reason of her husband 
 having been guilty of adultery coupled with cruelty, or of adultery 
 coupled with desertion, the husband and wife respectively should 
 be competent and compellable to give evidence of or relating to 
 such cruelty or desertion. And it was held, that when once in the 
 witness-box upon those issues they might be cross-examined, and 
 therefore re-examined, upon the issues of their own and of each 
 other's adultery respectively (o). 
 
 Trial of questioTis of fact lefore a Jury. — By 20 & 21 Vict. c. 85, 
 s. 28, it is enacted, that either of the parties to a petition praying 
 for the dissolution of the marriage may insist on having the con- 
 tested matters of fact tried by a jury ; and by s. 36 it is further 
 enacted, that in all questions of fact arising in proceedings under 
 the Act it shall be lawful for, but, except as thereinbefore provided 
 (and above stated), not obligatory upon, the court to direct the truth 
 thereof to be determined before itself, or before any one or more 
 of the judges of the court, by the verdict of a special or common 
 jury. In a suit for a judicial separation the parties cannot, as in a 
 suit for dissolution of marriage, demand, as a matter of right, that 
 the issues of fact be tried by a jury ; but the court has a discre- 
 tionary power, under the above section, to grant or refuse the appli- 
 cation for a jury. It will generally, however, on the application 
 of either party, direct questions of fact to be tried by a jury (p). 
 And in cases which have to be tried before the full court, 
 in which there is likely to be any considerable controversy as 
 to the facts, trial by jury will generally be directed (q). Upon 
 the trial of any question of fact before a jury, the court or 
 judge has (s. 38) the same power, jurisdiction, and authority as-any 
 judge of any of the superior courts sitting at nisi p-ius. A bill of 
 exceptions maybe tendered, and a general or special verdict, subject 
 
 (») HAUahiewiU V. EehUethieaite, L, (p) Marchmont v. Marchmonl, 27 Law 
 E., 2 Prob. & DiT. 29. J., Prob. & Matr. 59. 
 
 (o) Soardmam v. Eowrdmari) L. B;, 1 (?) MatcKffe t. Mkliffe, ih. 60. 
 
 Prob. & DiT. 233, 
 
 It it It 2 
 
900 PROCEEDINGS IN DIVOKCE COURT. [CHAP. XIX. 
 
 to a special case, may be returned as in causes tried in the superior 
 courts, and the matter of law heard and determined hy the full court, 
 subject to such right of appeal as is given by the statute (s. 39). 
 
 Petitions for damages from adulterers. — By the 20 & 21 Vict. 
 c. 85, s. 59, the action for criminal conversation is abolished, but by 
 s. 33 it is enacted, that any husband may either in a petition for 
 dissolution of marriage, or for judicial separation, or by petition 
 only, claim damages from any person on the ground of his having 
 committed adultery with the wife of such petitioner, and suph 
 claim is to be heard and tried on the same principles, in the same 
 manner, and subject to the same or the like rules and regulations, 
 as actions for criminal conversation were formerly tried and decided 
 in courts of common law (r), and the damages to be recovered are 
 in all cases to be ascertained by the verdict of a jury, although the 
 respondents or either of them may not appear. 
 
 Evidence at the trial of a claim for damages. for adultery — Proof 
 of the marriage. — In order, to establish a pritnd facie case for 
 damages from a defendant who is charged with having committed 
 adultery with the claimant's wife, it is necessary to prove a legal 
 marriage between the claimant and the woman alleged to be his 
 wife (s). It is not enough to show that he and his alleged wife 
 intended to celebrate, and did in their belief celebrate, a lawful and 
 formal marriage, and did afterwards cohabit as man and wife upon 
 the faith o^ this hond-fide belief, for the burthen is on him to prove 
 a clear legal'^marriage. whereby the relation of husband and wife is 
 really created ; and a mere proof of the ceremony which the parties 
 suppose to be sufficient to constitute that relation is not enough. 
 It must be shown to be sufficient according to law for that 
 purpose (t). 
 
 Proof of marriage hy certified extracts from parochial registers of 
 marriages. — The 52 Geo. 3, c. 146, formerly provided (ss. 1 — 5) for 
 the making and keeping, by the rector, vicar, curate, or officiating 
 minister of every parish or chapelry where marriages, &c., have been 
 celebrated according to the rites of the Established Church, of a 
 public register of such marriages, and for the transmission (ss. 6, 7) 
 of annual copies of such registers to the registrar of the diocese, 
 and for the making and preserving (s. 12) of alphabetical lists and 
 indexes, to be open to public search at all reasonable times, on 
 payment of the usual fees. But this statute, so far as it relates to 
 the registration of marriages, has been repealed by 6 & 7 Wm. 4, 
 c. 86, which provides (s. 2) a general register office in London for 
 
 (r) See Seddon v. Seddon, 30 Law J., (i) Oathermod v. Caslon, 13 M. & W. 
 
 Prob. & Matr. 12. 265 j 13 Law J., Exoh. 334. Morris T. 
 
 (») Broirne'B Diy. Praet., 2nd ed., p. MiUer, 1 W. Bl. 632: 4 Burr. 2057, 
 124. 
 
SECT. 1.] PEOOF OF MARRIAGE. 901 
 
 keeping a register of marriages, &c., and provincial registers (s. 9) 
 in every union. Marriage-register books are to be furnished to the 
 rector, vicar, or curate of every church or chapel, and to the regis- 
 tering officers of the various bodies of Dissenters, in whose chapels 
 marriages are celebrated (s. 30), who are required (s. 31) to register 
 therein all marriages, and forward (s. 33) certified copies thereof 
 to the superintendent registrars, who are to send them (s. 34) 
 to the Eegistrar-General, to be arranged for public inspection. 
 By s. 35 it is enacted, that every rector, vicar, or curate, and 
 every registrar, registering office, and secretary, who shall have 
 the keeping for the time being of any register book of marriages, 
 &c., shall at all reasonable times allow searches to be made of 
 any register-book in his keeping, and shall give a certified copy 
 under his hand, of any entry or entries in the same, on payment 
 of certain specified fees. Provision is also made for searches 
 at the superintendent registrar's (s. 36), and the General Eegister 
 Office (s. 39), and for the issue of certified copies under the hand of 
 the superintendent registrar (s. 36), and under the seal of the 
 Eegistrar-General. And aU certified copies of entries, purporting 
 to be sealed or stamped with the seal of the General Eegister 
 Office, are to be received as evidence without any further or other 
 proof of such entry ; and no certified copy purporting to be given 
 in the said office, which is not sealed or stamped as aforesaid, is to 
 be of any force or effect. 
 
 Proof of marriage through the medium of examined copies avd 
 certified extracts from non-parochial registers. — The 6 & 7 Wm. 4,c. 85, 
 also provides (s. 4) for notices of intended marriages to be given to 
 the Superintendent Eegistrar of Marriages (m), who is (s. 5) to file 
 such notices, and to furnish therefrom to the Eegistrar-General a 
 book, to be called " the Marriage-Notice Book," which is to be 
 open at all reasonable times to persons desirous of inspecting it. 
 Provision is made for the appointment of registrars of mar- 
 riages, for registering (s. 18) places of worship for the solemnisation 
 of marriages in the presence (s. 20) of the registrar ; for the regis- 
 tration (s. 23) of such marriages ; for the making and delivering 
 (s. 24) certified copies of the entries of marriage in the register to 
 the superintendent registrar, to be kept by him with the records of 
 his office. And by the 3 & 4 Vict. c. 92, and 21 & 22 Vict. c. 25, 
 ss. 1 & 2, provision is made for the verification and deposit in the 
 custody of the Eegistrar-General of various non-parochial registers 
 of marriages, &c., for the framing of lists of aU such records and 
 registers ; for the making of searches, and the grant (3 & 4 Vict. 
 c. 92, s. 5,) of certified extracts : also (s. 6) for the production in 
 
 («) See Holmes r. Simmons, L. E,, 1 Prob. k Div. ,523. 
 
902 PKOCEEDINGS IN DIVORCE COUKT. [CHAP. XIX. 
 
 courts of justice of such original registers and records; for the issue 
 (s. 9) of certified extracts therefrom, sealed with the seal of the 
 General Eegister Office ; for the admission of such certified extracts 
 on the trial of causes, but not on criminal trials (s. 11), after notice 
 given to the opposite party, in sufficient time before the trial to 
 enable him to inspect the original register or record; also (s. 12) 
 for the use of the original register or record in evidence after notice. 
 In criminal cases, the original register or record is required (s. 18) 
 to be produced, and notice given of the intention to use it. 
 
 Marriages of 3ritish subjects solemnised abroad, may be proved 
 through the medium of certified copies of the consular registers, 
 which are transmitted annually to the Eegistrar- General (x)., 
 A marriage in India may be estatilished by an authenticated copy 
 of the register of marriages kept in India by public authority and 
 transmitted to this country (y). 
 
 By 19'& 20 Vict. c. 119, s. 24, the Eegistrar-Gener-al is required 
 to give to any one demanding the same a certified copy^f the 
 returns made to him, or an extract therefrom, with respect to any 
 place of meeting for religious worship contained therein, ■ 
 
 Marriages, therefore, may be proved by a copy or extract from 
 the register, purporting to be signed and certified as a true copy or 
 extract by the parish-officer, whether incumbent, rector, vicar, or 
 curate, who has the custody of such register (s). And the identity 
 of the claimant and his wife with the parties named in the register, 
 as having been married at the time and place therein mentioned, 
 may be proved by any person who was present at the ceremony, ox 
 by any evidence sufficient to satisfy a jury of their identity (a). 
 
 The fact of the marriage may also be proved by the testimony 
 of an eye-witness of the ceremony, without the production of any 
 examined or certified extract from the register (6). "Where a, witness 
 deposed that he was present in a Wesleyan chapel, and that a form, 
 of marriage was th^re celebrated between A and B, in the presence 
 of the registrar of marriages, and spoke to aU the circumstances 
 attending the ceremony, the entry in the registrar's book, a copy 
 of which was produced at the trial, it was held that this, was 
 prima facie evidence of the due solemnisation of a marriage be- 
 tween the parties in a duly registered chapel, in which marriages 
 might be legally solemnised (c). Such formal proof as the above. 
 
 (x) 12 & 13 Vict. c. 68, sa. 11, 12, 18. (o) Birt v. Bmhw, 1 Doug. 174. See 
 
 As to the admissibility of a certificate of a JBublavd v. Lees, L. E., 1 Exch. 255. 
 
 foreign marriage, Ablott t. Oodoy, 29 Law (V) St. Devereux v. Much Dew Church, 
 
 J., Prob. & Matr. 57. 1 W. Bl. 867. 
 
 (yl J^tcUffe V. ScUcUfe, 29 Law J., (c) Seg. y. Mamwwring, 26 Law .J., M. 
 
 Prob.'& Matr. 202. C. II. See Sichd v. LambeH, 33 haw J., 
 
 (a) Se Hall's EstaU, 22 Law J., Ch. C. P. 137. 
 177; 14&15 Vict. 0. 99, ,s. U. 
 
SECT. 1.] DAMAGES FOE ADULTERY. 903 
 
 however, is not in all cases necessary, for where, in a suit for dis- 
 solution, tlio evidence was, that the parties left a certain place in 
 order to be married, that they retvirned and stated that they' had 
 been married, and subsequently lived together as man and wife for 
 many years, it was held sufficient (d) ; the presumption in favour of 
 marriage in such and similar cases being yery strong (e). 
 
 Of the damages recoverable in cases of adultery. — The injury 
 suffered by the husband from the seduction of Ms wife depends 
 upon the circumstances and situation in life of the husband at the 
 time of the seduction, upon the mode in which he fulfilled his 
 marital duties, the terms upon which the husband and wife were 
 living together, and upon the general character of the wife at the 
 time she was led astray. These are circumstances for the proper 
 and sole cognizance of the jury, and the court will not interfere 
 with their estimate of damages unless it is manifestly and palpably 
 outrageous (/). Where the plaintiff's wife had not been criminally 
 connected with the defendant alone, Lord Ellenborough directed the 
 jury to award damages proportioned to so much of the plaintiffs 
 loss of comfort, &c., as they might suppose to have been occasioned 
 by the defendant's misconduct, and not to give damages for the 
 whole of the injury that the plaintiff had sustained (g). So, proof 
 of adulterous intercourse between the wife and other men prior to 
 the commission of the adultery with the defendant, may be given 
 in evidence in reduction of damages, for the purpose of showing 
 that the claimant has lost a wife who was worth nothing (h). 
 
 A voluntary separation was no bar formerly to the husband's 
 claim for damages in an action of crim. con. ({), but it may be now 
 under the Divorce Act, if it amount to such misconduct as would 
 induce the court in the exercise of its discretion, under s. 31; to 
 dismiss the petition, and is properly pleaded (Ic). If the claimant 
 connived at the adulterous intercourse (I), or if he suffered or 
 encouraged his wife to live in a, state of prostitution, he could not, 
 before the passing of the Divorce Act, come into a court of justice 
 to ask for dama;ges. His -having suffered such connexion with other 
 men, was equally a bar to the action as if he had permitted the 
 defendant to be ooxinected with her (m). But the infidelity of the 
 husband was held to constitute no bar to his claim for damages from 
 
 (d) PatncUon v. Patriehon, L. E., 1 (A) Alierson, 3., Winter Y.Smn, 4 C. 
 ■Prob & DiT. 86. As to the proof of a & P. 498. Forster v. Forster, 33 Law J., 
 foreign marriage, soe Fmlay r. Fmlaij, 31 Prob. & Matr. 150, n. 
 
 Law J., Prob. & Matr. 149. ») Chambers y Cauim,6 Bast, 256 
 
 (e) See Ompertz v. KmsU, L. E., 13 (k) Seddon v. Seddon, 30 Law J„ Prob. 
 Ea Ca 369 *- -^^''■- ^^' 
 
 if) 'wUfm-d V. BerMey, 1 Burr. 609. (I) OMer\. Sloper, cited 4 T. E. 655. 
 
 Suieky y. Ounnins/, 4 T. E. 657. , (™)^ Pf>^ Ld. Kenyon, Jlodgis v. Wind- 
 
 (g) Gregson v. Theater, 1 Campb. ham, 1 Peake, 54. 
 415, n. 
 
904 PfiOOEEDINGS IN DIVOKCE COURT. [OHAP. XIX. 
 
 the adulterer, although it might he given in evidence in mitigation 
 of damages (w). AH these circumstances, however, may now he 
 pleaded as a defence to the petition for the dissolution of the' 
 marriage, as above stated, and if not so pleaded they are inadmis- 
 sible (o). If, however, they do not amount to a defence within the 
 above section, they would, semble, be admissible in mitigation of 
 damages, for, previous to the passing of the Divorce Act, it might 
 be shown in mitigation of damages that the husband neglected his 
 wife, or treated her with coldness, and as a person whom he did not 
 esteem or regard ; also that the marriage was kept secret, and that 
 the wife was allowed to live with her mother, and pass as a single 
 woman, and that she was not Icnown by the defendant to be 
 married at the time of the commission of the adultery (p). 
 
 When the husband and wife are separated from each other the 
 wife's letters to her husband are admissible in evidence for the 
 purpose of showing the state of her affections at the time of the 
 writing of the letters ; but to remove all grounds for any suspicion 
 of collusion between the husband and wife, it should be proved that 
 the letters were written at the time they bear date, and before there 
 was any knowledge or suspicion of the adulterous intercourse (q). 
 Such letters are not to be rejected merely- because they contain 
 statements of specific facts calculated to influence the minds of the 
 jury, and which are not strictly evidence. But the jury must be 
 cautioned not to allow themselves to be influenced by the particular 
 facts alluded to (r). 
 
 Evidence of the defendant's circumstances or property has been 
 held to be inadmissible for the purpose of enhancing the damages, 
 it being considered that the jury ought to give compensatioh for the 
 injury sustained without reference to the wealth of the defendant(s). 
 But if the co-respondent has used his wealth for the purpose of 
 seducing the respondent, the jury may, it seems, take it into con- 
 sideration in assessing the damages (t). Evidence of the humble 
 condition in life, and of the poverty of the defendant, has been 
 received in mitigation of damages, for the purpose of showing that 
 the allurements and temptations to the commission of the adultery, 
 did not emanate from the defendant. Letters,' also, written by the 
 claimant's wife before the commission of the adulteiy, soliciting 
 the defendant's addresses, and enticing him into the adulterous 
 connexion, are admissible in evidence in mitigation of damages, but 
 
 (71.) Bromley v. Wallace, i Esp. 237. Esp. 38. 
 
 (0) Plumer v. Plumer, 29 Law J., ()■) WiUis v. Bernard, 1 M. & Sc. 584 ; 
 
 Prob. &, Matr. 63 ; S. & S. 147, S. O. 8 Bing. 376. 
 
 (p) Caleraft v. Harl JTarlorough, 4 C. (s) Alderson, B., James t. Biddington, 
 
 & P. 501. 6 C. & P. 590. 
 
 (3) Trelavmey v. Coleman, 1 B. & Aid. (i) Ooviiwg v. Cowing, 33 Law J., Prob. 
 
 90; 2 Stark. 191. Edwards \. Crock, i & Matr. 149. 
 
SECT. 2.] SEDUCTION. 905 
 
 not proofs of misconduct subsequent to the commission of the 
 adultery (u). 
 
 Application of the damages recovered — Payment of costs (x). — 
 After verdict, or decree, the Court for Divorce and Matrimonial 
 Causes is to direct in what manner the damages are to be applied (y), 
 and is empowered to settle the whole, or any part thereof, for the 
 benefit of the children (if any) of the marriage, or as a provision 
 for the maintenance of the wife (z). And whenever, in any petition 
 presented by a husband, the alleged adulterer shall have been made 
 a co-respondent, and the adultery shall have been established, the 
 court may order the adidterer to pay the whole or any part of the 
 costs of the proceeding (a) ; or, if no sufficient justification has been 
 proved for making him a co-respondent (&), or the husband has 
 connived at the adultery (c), may order the husband to bear his own 
 costs. But, where the court of appeal has exercised its discretion 
 with regard to costs, the Judge Ordinary will not interfere (c?). 
 Under certain circumstances the wife wUl have to bear her own 
 costs (e) as well as those of her husband (/). The payment of costs 
 may be enforced by writ of sequestration (17). 
 
 SECTION II. 
 OP SEDUCTION. 
 
 Of the harhowring of married women and inducing them to live 
 apart from their husbands. — Every person who receives a married 
 woman into his house, and suffers her to continue there after he has 
 received notice from the husband not to harbour her, is liable to an 
 action for damages, unless the husband has, by his cruelty or mis- 
 conduct, forfeited his marital rights, or has turned his wife out 
 of doors, or has, by some insult or ill-treatment, compelled her to 
 leave him. Where a married woman came to the defendant's house 
 and represented herself to have been very ill-used by her husband, 
 who, she said, had turned her out of doors, and upon this repre- 
 
 (u) EUam v. Fmeett, 2 Esp. 562. (c) Adam v. Adams, L. K., 1 Prob. & 
 
 Ix) See West v. West, L. K., 2 Prob. & ])iv. 333. 
 
 Div. 196. (d) L V. H , L. R, 1 Prob. & 
 
 («) See Patterson t. Patterson, L. K., Div. 293. 
 
 2 Prob. & Div. 189. (e) ^eal v. Heal, L. R., 1 Prob. & Div. 
 
 (z) Bent V. Bent, 30 Law J., Prob. & 300. 
 
 Matr. 175. BOlimgay v. BeUingay, L. E., ( f) MiUer v. MUkr, L. E., 2 Prob. & 
 
 1 Prob. & Oir. 168.' Matr. 13. Milne v. Milne, ih. 202. See 
 
 (a) 20 & 21 Vict. c. 85, ss. 33, 34. Wait v. Wait, ib. 228. 
 
 (5) WhUmore v. Whitmm-e, L. R, 1 (cf) Dent v. Dent, L, H,.,! Froh.lt Div. 
 
 Prob. & Div. 25. And see Conradi v. 366. MiUer v. MiZler, L. E., 2 Prob. & 
 
 Conradi, &. 163. l^i^'- 5^- 
 
906 SEDUCTION OR ENTICING AWAY [CHAP. XIX. 
 
 sentation the defendant received her into hia house, and suffered 
 her to continue there after he had received notice from the husband 
 not to harbour her. Lord Kenyon held that an action could not be 
 maintained against him, as he appeared to have acted solely from 
 principles of humanity (h), and that, if a husband ill-treats 
 his wife, so that she is forced to leave his house through fear 
 of bodily injury, any person may safely, nay honourably, receive 
 her and protect her (*). Where the defendant persuaded and 
 procured a wife to separate from her husband and- live apart from 
 him, it was held that he was responsible in damages to the latter, 
 and that every moment a wife continues absent from her husband 
 without his consent is a new tort, and every one who persuades her 
 to do so does a new injury (Tc). . 
 
 Of the seduction and loss of service of servants. — ^Every person 
 M?ho knowingly and designedly interrupts the relation subsisting 
 between master and servant by procuring the servant to depart 
 from the master's service, or by harbouring him and keeping him 
 a§ servant, after he has quitted iis place, and during the stipulated 
 period of service, whereby the master is injured, commits a 
 wrongful act, for which he is responsible in damages (I ). And if 
 a servant or apprentice quits his master or employer without just 
 cause, before his term of service expires, and another retains and 
 employs him against the wUl of the master, and with notice of his 
 having deserted the service of the latter, an action for damages is 
 maintainable against him, as the very act of giving the servant 
 employment is affording him the means of keeping out of his 
 former service (m). 
 
 A taskworkman, who contracts with another by the job or 
 piece, is the servant of that other until the work is finished, and no 
 other person can, whilst such work is going on and is unfinished, 
 lawfully employ the servant, if, by so doing, he causes him to leave 
 his work unfinished, and has knowledge of the fact, Thus, where a 
 journeyman shoemaker, living and working in his house, was 
 employed by a shoe manufacturer to make a certain number of 
 shoes at so much per pair, to be completed by a given time, and the 
 defendant took the man into his service, and thereby caused him 
 to leave a number of shoes uniinished, and neglected to discharge 
 him after having received notice from the plaintiff of the subsisting 
 engagement between such workman and himself, he was held 
 responsible in damages to the plaintiff for the injury (n). If the 
 
 (A) Philp V. Sqwm, 1 Peake, 115. Fawcett y. Beama, 2 Lev. 63. Adarm v. 
 
 (») Berthm v. Owrtwright, 2 Esp. 480. Bafeald, 1 Leon, 2i0. Hamilton v. Vere, 
 
 'Jc) Winsmore T. Cfreenhank, ante, p. 9. 1 Lev. 299 ; 2 Saund. 169. 
 
 ^l) Lumley v. Oye, 2 Ell. & BI. 224. (m) ffm-t v. Aldridge, Cowp. 54. Bao. 
 
 ;m) BlaJce t. Loyton, 6 T. E. 221. Abr. Master and Seevant (0). 
 
SECT. 2.] OF SERVANTS OR CHILDREN. 907 
 
 defendant has derived any benefit from the services of the servant 
 or apprentice, the master is entitled to recover tlie value of it (o). 
 
 The master may maintain an action for compensation for the 
 loss of the services of his servant through the tortious act of 
 another, whether the servant be a child or not, provided it appear 
 that the child was capable of rendering, and did render, some 
 service, however trifling; but if no service was, or could be, 
 performed by the child, an action is not maintainable. However, if 
 the tortious act is in effect a breach of contract, e. g., the neglect of 
 a railway company to carry a servant, who is a passenger on their 
 railway, safely, the master of the servant is not entitled to sue the 
 railway company, for the contract is not with him {p). 
 
 Of injuries to parents in being deprived of the services of their 
 children throiogh the tortious act_ of another. — A parent has no 
 remedy for an injury done to his child by the wrongful act of 
 another, unless the child is old enough to be capable of rendering 
 him some act of service, and can be treated in law as his servant ; 
 but it is not necessary to allege or prove any contract of service 
 beyond what the law will imply from the relationship of parent 
 and child {q). Thus, where the plaintiff brought an action against 
 IhE -defendant for carelessly driving over and injuring the plaintiff's 
 child, whereby the plakitiff was deprived of the service of the 
 child, and was obliged to expend a large sum of money in 
 doctors and nurses, and it appeared that the child was only 
 two years and a half old, and incapable of performing any act 
 of service, it was held that the action was not maintainable (r). If 
 the father of a child incurs necessary expense in curing his child 
 from an injury wrongfully inflicted by the defendant, he cannot 
 recover those expenses upon a declaration describing, as the cause 
 of action, the obligation of the father to incur that expense. 
 
 Of injuries to parents from the seduction of tlieir daughters. — 
 The law gives no remedy to the parent for the mere seduction of 
 his daughter, however wrongfully it may have been accomplished. 
 Incontinence on the part of a young woman cannot be made the 
 foundation of an action against the person who has tempted her 
 and deprived her of her chastity (s) ; but if she is living with her 
 parent at the time of the seduction, and the seduction is followed 
 w pregnancy and illness, whereby the parent is deprived of the 
 filial services theretofore rendered to him, an action is m,ain- 
 tainable against the seducer. 
 
 . (0\ Foster r. SUwart, 3 M. & S. 201, W ^^rinndly. WA, 7 M. & Gr. 1041; 
 
 (p) Alton T. MidlarvA Mil. Go., 34 Law 8 ^e ^N. B. 741. • 
 
 T r p 909 (') Satertkwazte v. Duerst, i ])(nie. 
 
 'S)Eval\. WaUm, L. B., 2 0. P. 315 ; 5 East, 47, .. 
 815. 
 
908 SEDUCTION OF SERVANTS OE CHILDREN. [CHAP. XIX. 
 
 The foundation, therefore, of the action by a father to, recover 
 damages against a wrong-doer for the seduction of his daughter 
 has been uniformly placed, from the earliest time, not upon the 
 seduction itself, which is the wrongful act of the defendant, but 
 upon the loss of the. service of the daughter,, in which service he 
 is supposed to have a legal right or interest. It has, consequently, 
 always been held, that the loss of service must be alleged in the 
 declaration of the cause of action, and be proved at the trial, or 
 the plaintiif must fail. It is not enough for the father to show 
 that his daughter was a poor person maintaining herself by her 
 labour, that the defendant seduced her and got her with child, and 
 that she became unable to maintain herself, and that the father 
 was forced to maintain her at his own expense, and to pay for 
 doctors and nurses to attend upon her, &c. (t) ; or that the father 
 had apprenticed her to the defendant, and paid him a large simi of 
 money to instruct her in a trade, but that the defendant seduced 
 her and got her with child, and rendered her unable to learn the 
 trade (u). However slight the act of service may be, it must be a 
 real genuine service, such as the parent may command. The making 
 tea, or doing any, household work at the command of the parent is, 
 however, quite suliicient to constitute the relationship of master and 
 servant when the girl is residing with her father and mother («). 
 
 Effect of the absence of the daughter from the parent's roof at the 
 time of the seduction. — As the loss of service is the foundation of 
 the action, it follows that the relation of master and servant must 
 subsist between the plaintiff and the person seduced at the time of 
 the seduction, for otherwise the defendant's act does not infringe 
 upon the plaintiff's rights, or deprive him of anything then belong- 
 ing to him. If, therefore, the daughter, at the time she was 
 seduced, was at the head of an establishment of her own, and her 
 father was living with her as a visitor in her own house, she 
 cannot be treated as being in the subordinate position of a servant, 
 and the father cannot maintain an action for loss of service {y). If 
 the daughter, at the time she was seduced, did not reside with the 
 father, but was living away from home in the service of another 
 person, the father has no ground of action for the seduction (a), 
 unless the person with whom she is living inveigled her away 
 from home into a pretended service, for the purpose of seducing 
 her, although it be alleged in the declaration, and proved at the 
 trial, that-the absence was only temporary, and that she intended 
 
 (i) Gnrmdl v. Wdls, U Law J., C. P. {y) Mardey v. Fidd, 1 C. B., N. S. 96 ; 
 
 19. 29 Law J., C. P. 79. 
 (u) HarrU v. BuOer, 2 M. & W. 539. (z) Dean v. Fed, 5 East, 47. CfrirmeU 
 
 (x) Thompson v. Ross, 5 H. & N. 16 ; v. Wdlt, 7 M. & Gr. 1042; 8 Sc. N. E. 
 
 29 Law J., Exch. 1. Evms t. Walton, 741. 
 
SECT. 2.] PRETENDED HIEING. 909 
 
 to return and live with her father after the term of service had 
 expired (a). But if she is away only on a temporary visit, and 
 still forms part of her father's family, and makes herself ser- 
 viceable to him when she is at home, such temporary absence con- 
 stitutes no impediment to an action by the father for damages (I). 
 And if she is seduced while on her way home from her 
 master's to her father's house, having been dismissed by her master, 
 that is' sufficient constructive service (c). Whenever the girl is 
 away in actual service, the mere fact of her mistress being in the 
 habit, from time to time, of allowing her to go home and assist her 
 widowed mother in needlework, has been held to be insufficient to 
 enable the mother to maintain an action for damages (d), although 
 the seduction actually is effected while she is on such a temporary- 
 visit, and during such visit she assists in the housework (e). If the 
 relation of master and servant is contracted after the seduction, the 
 loss of service cannot then be made the foundation of an action. 
 The state of the case then is, that the master has taken into his 
 service a servant whose services are less valuable to him by reason 
 of antecedent occurrences, and there is no consequential injury 
 of which he has any right to complain as against the seducer (/). 
 
 Pretended hiring of girls for pu/rposes of seduction. — If a person 
 hires a girl as a servant, and withdraws her from her father's 
 service for the very purpose of getting possession of her person and 
 seducing her, this fraudulently-concocted service does not piit an 
 end to the relation of master and servant previously subsisting 
 between the daughter and her father, and does not throw any im- 
 pediment in the way of an action by the latter for the seduction. 
 Thus, where the plaintiffs daughter, who was residing with the 
 plaintiff, and rendering him service in domestic matters, advertised 
 for a situation as lady's maid, and the defendant, seeing the adver- 
 tisement, proposed to engage her in that capacity for his sister, 
 but afterwards hired her at weekly wages to take care of an empty 
 house, where he seduced her and got her with child, it was held by 
 Abbott, C.J., to be a question for the jury whether the daughter 
 was withdrawn from her father's house by the defendant under a 
 hondfide contract for her services, or the whole matter was a mere 
 pretence and contrivance on the part of the defendant to get pos- 
 session of her person. " If she was the servant of the defendant," 
 observes his lordship, " the action certainly cannot be maintained ; 
 but had she ceased to be the servant of her father, the plaintiff ? 
 
 (a) Sldymtre V. ffaiep, 6 M. & W. 56. (d) Thompson v. Ross, 29 Law J.,' 
 
 Harris t. Butler, 2 il. 539. Eioh. 1. 
 
 (h) Gnffiths T. Teetyen, 15 0. B. 344. (e) Sedges t. Tagg, L. R., 7 Exeh. 283. 
 
 (e) Terry t. HvtcUmon, L. E., 3 Q. B. (/) Danim v. Williams, 10 Q. B..728 ; 
 
 599, " 16 Law J., Q. B. 369. 
 
910 SEDUCTION OF SERVANTS OE CHILDKEN. [CHAr. XIX. 
 
 If the jury be of opinion that the defendant practised a fraud and 
 contrivance to procure her to leave her father's house, without any- 
 real intention' to hire her as a servant, I am of opinion that the 
 action is maintainahle." And afterwards, in summing up to the 
 jury, his lordship said, "During the time that she was in her 
 father's house she was his servant ; was there an end put to that' 
 service ? It is alleged by the defendant that there was, because he 
 himself hired her for the purpose of keeping his own house at the 
 rate of 7s. per week : but if he did not in reality hire her with that 
 intention, but with the wicked view of seducing her, then I am of 
 opinion that the relation of master and servant was never con- 
 tracted between them " {g). 
 
 Seduction of married daughters. — Where a married woman 
 separated from her husband, returned to her father's house and 
 lived with him, performing various acts of service, it was contended 
 that a married woman was not capable of making any contract Of 
 service ; but the court held that, as against a wrong-doer, it was 
 sufficient to prove that the relationship of master and servant 
 de facto existed at the time of the seduction, and that, in the 
 absence of any interference on the part of the husband, it was not 
 competent to the defendant to set up the husband's right to the 
 services of his wife as an answer to the action Qi). 
 
 Effect of proof that the defendant, though he seduced the girl, was 
 not the father of the child of which she was delivered.-^li the de- 
 fendant, though he seduced the girl, was not the father of the child 
 of which she was subseqiiently delivered, and did not consequently 
 cause the pregnancy and illness, and the consequent loss of service, 
 there is no cause of action against him (i). • 
 
 Effect of the seduction and loss of service liaving heen occasioned hy 
 the plaintiff's own misconduct and neglect of his parental duties.^^It is 
 expected of every parent that he should be jealous of, and watchful 
 over, the honour of his daughter, and protect her, as far as possible, 
 from the advances and solicitations of notorious libertines. If, 
 therefore, he introduces her to profligate acquaintances, encourages 
 improper intimacies, and invites the injury of which he complains, 
 he has no groimd of action for damages. Where the defendant 
 proposed to marry the daughter of the plaintiff, and was received 
 and entertained as her suitor at the plaintiff's house, and the plain- 
 tiff then ascertained that the defendant was a married man and a 
 great libertine, notwithstanding which he allowed him to continue 
 his addresses to the daughter, on the strength of certain' assurances 
 which he gave to the effect that hi* wife was afflicted with a mortal 
 
 ig) Speight y. OliiDiem, 2 Stark. 495. (i) llager v. Gvimiieod, 1 Exck 61 : 
 
 {h) Harper t. Luffkin, 7 B. & 0. 387. 16 Law J., Exch. 236, 
 
SECT. 2.] PLEADINGS. 911 
 
 disease, and could not live long, and tlien he would marry the 
 daughter, and the defendant ultimately seduced her, it ■yvas held, that, 
 as the plaintiif had by his own misconduct contributed to the injury 
 of which he complained, he had no ground of action for redress (j). 
 
 Of the parties entitled to maintain an action for seduction (k). — 
 To entitle a person to maintain an action for the seduction of a girl, 
 it must be proved, as we have seen, that the relationship of master 
 and servant existed between the plaintiff and the person seduced 
 at the time of the seduction. The action may be brought by any 
 person with whom the seduced girl was residing at the time she 
 was seduced, either in the character of a daughter and servant, or 
 as a ward and servant, or as a servant only. Thus, in the case of 
 an orphan living with a relation, or a friend or benefactor, and 
 rendering such domestic attendance and obedience as is usually 
 rendered by a daughter to her father, the relation or benefactor is 
 the proper person to sue for the wrong done (I) ; and standing 
 loco parentis, and being thus entitled to sue, he is permitted to 
 recover damages beyond the mere loss of service, as when the 
 action is brought by the actual parent (m). 
 
 Of the pleadings in actions for seduction. — If a declaration by a 
 ■parent for the seduction of his daughter contains no allegation of 
 the loss of the service of the daughter, it is bad in arrest of judg- 
 ment. " The loss of service must be alleged in the declaration, and 
 must be proved at the trial, or the plaintiff must fail" (n). The 
 defendant either pleads " Not guilty," or that he did what is com- 
 plained of by the plaintiff's leave, and the plaintiff replies, taking 
 issue upon the plea (o). The plea of not guilty puts in issue both 
 the fact of the seduction and the fact that the person seduced was 
 the servant of the plaintiff (p). Under this plea the defendant 
 may show that the seduced girl was in the service of a third 
 person, and was not at the time of the seduction residing with the 
 plaintiff; also that he, though he had carnal knowledge of the 
 seduced woman, was not the father of the child of which she was 
 delivered, and, consequently, that the confinement and iUness, and 
 loss of service and expense, were not occasioned by the act of the 
 defendant (s) ; also that the illness and consequent loss of service 
 were not occasioned by the act of seduction, but by the defendant's 
 leaving and abandoning the girl after he had seduced her (r) ; 
 
 (J) Seddk r. Scoolt, 1 Peake, 316. ^ {") 15 & 16 Vict. e. 76, Sohed. B, 38, 
 
 (k) See 30 & 31 Vict. c. U2, s. 10, 39- „ „ a% j >, n i^ -o ,=oq 
 
 r,r,tP r, 655 iP) SottowayT. Aid, 7 C. & P. 528, 
 
 m Holt 453 note. ^-omnc. t. CfibUns, 5 Q. B. 297. 
 
 fl)^nr: Znmn, 11 East, 24. ^ (s) Eagjr v. Grir..wood, 1 Exch. 61 ; 16 
 
 .^1:)'?S,^t^^L".- 1 wens, 7 ^;f 4f|-|™.^», 13 M. . W. 738; 
 M. & Gr. 1040. 1* ^^"^ J-' ^^°^- ^^*' 
 
912 SEDUCTION OF SERVANTS OE CHILDREN. [CHAP. XIX. 
 
 also that the seduced woman entered the service of her master in 
 a state of pregnancy (s), or that the plaintiff was a party to his 
 own dishonour, and by his own imprudence and misconduct has 
 contributed to the injury of which he complains (t). 
 
 Evidence at the trial in actions for seduction — Proof of the 
 relationship of master and servant.-^As the , loss of service is the 
 foundation of . the action for seduction, it is necessary to establish 
 the relationship of master and servant between the plaintiff and 
 the seduced girl, as well as to prove the fact of the seduction itself, 
 in order to make out a case for damages. The relationship of 
 master and servant must be shown to have subsisted at the time 
 of the seduction, for, if it appears that the relationship was con- 
 tracted afterwards, there is no injury to the plaintiff, and no 
 ground of action to him (u). It would seem also that no action is 
 maintainable by the parent, if, at the time of the daughter's con- 
 finement, she is in the service of another (v). Very slight evidence of 
 actual service, such as milking cows,, making tea, nursing children, 
 will suffice to prove the fact of actual service (x). And where a 
 daughter is shown to have been living with her father at the time 
 of the seduction, forming part of his family, and liable to his 
 control and command, service will be presumed, and proof of acts 
 of actual service will be unnecessary (y). It is not. necessary to 
 produce the seduced daughter as a witness at the trial, if the 
 seduction can be proved aliunde, though the withholding of 
 her testimony may afford a strong topic of observation to the 
 
 jury (a). 
 
 Of the damages recoverable in actions for sediietion. — In esti- 
 mating the damages to be given to a father for the loss of service 
 of his daughter from seduction, the jury are not confined to the 
 consideration of the mere loss of service,, but may give damages 
 for the distress of mind which the parent has sustained in being 
 deprived of the society and comfort of his child, and by the dishonour 
 which he receives (a). The jury also must take into consideration 
 the situation in life and circumstances of the parties, and say what 
 they think, under aU the circumstances, is a reasonable compensation 
 to be given to the parent (&). "In point of form," observes Lord 
 Eldon, " the action only purports to give a recompense for loss of 
 service; but we cannot shut our eyes to the fact, that it is an 
 action brought by a parent for an injury to her child, and the jury 
 
 («) Dweies T. William, 10 Q. B. 728. Jones v. Srouin, 1 Esp. 217. Fores v. 
 
 (t) Reddie v. Scoolt, 1 Peake, 316. Wilson, 1 Peake, 77. Ooleridge, J., Tor- 
 
 (u) Davies t. Williams, 10 Q. B. 729. rence v. Gibbins, 5 Q. B. 300. 
 
 {v) Hedges v. Tagg, supra. (s) Farmer v. Joseph, Holt, 462. 
 
 (x) Buller, J., Bennett v. Allcott, 2 T. (a) Irwin v. Dearman, 11 East, 23. 
 
 E. 168 ; ante, p. 908. (6) And/rews v. Aihey, 8 C. & P. 9. 
 
 (y) Maunder t. Venn, M. & M. 323. Southernwood v. Jiamsden, cited ib. 9. 
 
SECT. 2.] DAMACES RECOVERABLE. 913 
 
 may take into their consideration all that she can feel from the 
 nature of the loss. They may look upon her as a parent losing 
 the comfort as weU as the service of her daughter, in whose virtue 
 she can feel no consolation ; and as the parent of other children 
 whose morals may be corrupted by her example (c). 
 
 Evidence in aggravation of damages — Froof that the defendant 
 made his advances to the daughter tinder the guise of matrimony. — 
 Evidence is inadmissible to show that the defendant accomplished 
 the seduction through the medium of a promise of marriage, for 
 the purpose of enhancing the damages, as the breach of promise 
 constitutes a distinct cause of action, in respect of which damages 
 are recoverable by the daughter. "But you may ask," observes 
 Lord EUenborough, " whether the defendant paid his addresses to 
 her in an honourable way " {d). " The jury do right," observes 
 WHmot, C. J., " in a case where it was proved that the seducer had 
 made his advances under the guise of matrimony, in giving liberal 
 damages ; and if the party seduced brings another action against 
 the defendant for the breach of promise of marriage, so much the 
 better. If much gi'eater damages had been given, we should not 
 have been dissatisfied therewith, the plaintiff having received this 
 insult in his own house, where he had civilly received the defen- 
 dant, and permitted him to pay his addresses to his daughter " (e). 
 
 If, in the course of the trial, a j)romise of marriage is in- 
 advertently proved, the jury must be told to exclude the injury 
 resulting to the seduced girl from the breach of promise of 
 marriage from their consideration, and leave it quite out of the 
 question in determining the amount of the damages to be recovered 
 by the father and master for the loss of service (/). 
 
 Evidence in mitigation of damages. — The loss that the father 
 sustains by the seduction of his daughter depends, to a very great 
 extent, upon the value of her previous character. -Primd facie, it is 
 to be presumed that she was a moral and virtuous girl at the time 
 of her seduction, and contributed to the domestic happiness of her 
 parents, but it is competent to the defendant to show that this was 
 not the case, in order to diminish the loss and reduce the damages ; 
 and if evidence is given to impeach the character of the girl, it 
 may be met and rebutted by evidence on the part of the plaintiff 
 of her previous good character. The defendant may call witnesses 
 to prove particular acts of sexual intercoursebe tween the plaintiff's 
 daughter and those witnesses prior to the period of the seduction, 
 either for the purpose of reducing the damages (g), or for the 
 
 (c) Bedford v. M'Kovil, 3 Bsp. 120. EUiott t. NicUin, 5 Pr. 641. 
 
 See per Lord EUenborough, C.J., in Ir- (e) TulMdge v. Wade, 3 Wils. 18. 
 
 win T. Dearman, supra. (f) Ibid. 
 
 {d) Dodd T. Norrii, 3 Campb. 620. {g) Verryv. WatHna, 7 C. &V. Z08. 
 
 N N N 
 
914 SEDUCTION — DAMAGES. [CHAP. XIX. 
 
 purpose of showing that the defendant is not the father of 
 the child, and, therefore, that his sexual intercourse with the 
 daughter did not occasion the loss of service of which the plaintiff 
 complains Qi). It may he shown that the seduced girl, prior to the 
 seduction, was in the habit of keeping loose company or of giving 
 utterance to loose language and immodest remarks ; she may 
 be asked, for instance, whether she had not admitted that some 
 person other than the defendant was the father of her child ; but 
 before witnesses can be called to prove the nature of the language 
 or of the remarks, she must be pointedly and expressly asked 
 in her cross-examination, whether she ever used the particular 
 language or the precise remarks intended to be given in evidence 
 against her {i). 
 
 "Where the whole of the cross-examination in an action for 
 seduction went to show that the person seduced had conducted 
 herself immodestly and kept improper company, witnesses werp 
 allowed to be called to prove her general good character and 
 modest deportment, and the general respectability of the family (k). 
 But where the daughter was cross-examined to show that she had 
 submitted herself to the defendant's embraces under circumstances 
 of extreme indelicacy, and had been guilty of great levity of 
 conduct, Lord Ellenborough refused to allow witnesses to be called 
 to the general character of the daughter, saying she had had ample 
 opportunity of setting her conduct right in the course of her re- 
 examination (I). And where evidence was given on the part of the 
 ■ defendant to prove that the girl, previous to her acquaintance with 
 h-im, had had a child by another man. Lord Ellenborough restricted 
 the evidence tendered by the plaintiff in reply thereto to disproving 
 the specific breach of chastity alleged by the defendant, and would 
 not allow him to give general evidence of his daughter's good 
 character for chastity and respectability (m). 
 
 Damages recoverable in actions for inducing or persuading wives, 
 servants, or workmeri, to ahandon their duties or neglect the fulfilment 
 of a contract. — If a servant or contractor is induced not to perform 
 the work or contract which he has undertaken to perform, through 
 the malicious persuasion of the defendant, damages far beyond the 
 value of the subject-matter of the contract may be recoverable 
 from the wrong-doer (n). The measure of damages is not to be con- 
 fined to the loss of the services of the servants who were actually 
 enticed away, but the jury are justified in giving ample compen- 
 sation for all the damage resulting from i- the wrongful act (o). 
 
 (k) Eager v. Grimwood, I Exch, 61 ; (m) Bamfield v. Massey, 1 Campb. 460. 
 
 16 Law J., Exch. 236. (») Crompton, J., Lamley v. Gye, 2 
 
 (i) Cwrpenter v.WaU, 11 Ad. & E. 803. , Ell. & Bl. 230 ; 22 Law J., Q. B. 463. 
 (k) Bate V. irUl, 1 0. & P. 100. (o) Guntor v. Aator, i Moor, 15. 
 
 (I) Dodd T. Norris, 3 Campb. 518. 
 
SECT. 2.} INDICTMENT FOE ADDUCTION, 915 
 
 Where the plaintiff alleged that his wife left him and lived fipart 
 from him, during which time a considerable fortune was left to her 
 separate use, and that, she being willing to return to the plaintiff, 
 the defendant unlawfully persuaded her to continue to live away 
 from the plaintiff, whereby he lost the assistance of his wife in his 
 domestic affairs and the advantage of her fortune, '60001. damages 
 were recovered for the wrong done (p). 
 
 Indictment for the abduction of unvmrried girls. — Whoever un- 
 lawfully takes, or causes^ to be taken, any unmarried girl, being 
 under the age of sixteen years, out of the possession, and against 
 the wiU, of her father or mother, or of any other person having 
 the lawful care or charge of her, may be indicted and convicted 
 of a misdemeanour {q). And whoever fraudulently allures, takes 
 away, or detains any woman under the age of twenty-one years, 
 who has any interest in any real or personal estate, or is pre- 
 simiptive heiress, or co-heiress, or next of kin, &c., to any one having 
 such interest, out of the possession, and against the will, of her father 
 or mother, or other person having the lawful care or charge of her, 
 with intent to marry or carnally know her, or to cause her to be 
 married or carnally known by any other person, may be indicted for 
 felony ; and, if convicted, he is incapable of taking any estate or 
 interest in any property of the woman, or in which she shall have 
 any interest, or which may come to her as heiress, co-heiress, or 
 next of kin, &c. {r). The taking and detaining, from motives of 
 lucre, of any woman over twenty-one, who is entitled to any real 
 or personal estate, «S;c., against her wiU, with intent to marry or 
 carnally know her, subjects the wrong-doer to a similar punishment 
 and disability (s). 
 
 (p) Winsmore v. Greeribaiik, Willes, ManUdow, 22 ih. 115. 
 580. (r) 24 & 25 Victi c. 100, s. 53. 
 
 (?) 24 & 25 Vict. c. 100, s. 55. Beg. t. (») Ibid. 
 
 Timmins, 30 Law J., M. C. 45. Eeg. v. 
 
 NN K 2 
 
916 
 
 CHAPTER XX. 
 
 OF ACTIONS EX DELICTO— PARTIES THERETO— NON-JOINDEB AND 
 
 MIS-JOINDER OF PAETIES. 
 
 Section I. — Fwrtks to be made plaintiffs common, corporate bodies, public 
 
 in actions ex delicto. — Parties to be boards, joiut-atoek companies, trustees 
 
 made plaintiffs in actions of tort and commissioners, public officers, 
 
 founded on contract — Remedies of master and servant, principal and 
 
 tenants in common and joint tenants agent — Subsequent ratification and 
 
 against each other — Rights of the sur- adoption of a wrongful act — Servants 
 
 vivor — ^Trustee and cestui que trust — and agents — Husband and wife — In- 
 
 Bailees of goods — Master and servant fants — Executors or adrainistratorB— 
 
 — Husband and wife — Actions by Trustees in bankruptcy — Liability of a 
 
 married women after a judicial separa- bankrupt after his bankruptcy — Num- 
 
 tion, or an order for prptection — ^Ac- ber of the defendants.^ 
 
 tions by infants, heirs-at-law, devisees, Section III. — Of the non-joinder and 
 
 and personal representatives^ — ^Actions misjoinder of paHies. — Amendment 
 
 by administrators and trustees of bank- before and at the trial — Misjoinder of 
 
 rupts — Number of the plaintiffs — Joint defendants in actions of tort founded 
 
 and separate rights of action. on contract — Plea in abatement for 
 
 Section II. — Pea-ties to he made defen- non-joinder — Amendment. 
 dwnti in actions ex delicto. — Tenants in 
 
 SECTION I. 
 
 01' ACTIONS EX DELICTO AND THE PAETIES TO BE MADE PLAINTIFFS 
 IN SUCH ACTIONS (a). 
 
 Parties to be made plaintiffs in actions of tort founded, on con- 
 tract. — Where a contract creates a duty, the neglect to perform that 
 duty, as well as the negligent performance of it, is a ground of 
 action for a tort. Both the non-feazance and the mis-feazance 
 constitute a wrongful act, for which the remedy is Toy action of 
 contract or of tort, at the option of the party injured (&). "When- 
 ever the goods and chattels or materials of an employer are placed 
 in the hands of a workman to be worked upon, any loss or injury 
 to the chattels and materials, from the neghgent execution of the 
 work, forms a ground of action upon a tort as well as upon a 
 contract. So if I deliver goods to a carrier to he carried for hire, 
 and the goods are lost or injured through the negligent per- 
 formance of the work of carrying, an action of contract or of tort 
 
 (o) Parties to be made plaintiffs in See Index im, voce. 
 particular actions hare already been- con- l^) Boorman y.Brovm, % Q B 526 • 
 
 sidered under their appropriate heads. II CI. & Fin. 1 >-»••. 
 
SECT. l.J PARTIES TO ACTIONS. 917 
 
 is maintainable agalinst the carrier, at the option of the owner of 
 the goods (c). 
 
 But it is said to be a rule of law that, whenever a wrong is 
 founded upon a breach of contract, the plaintiff who sues in re- 
 spect thereof must be either a party or privy to the contract, in 
 order to establish a duty on the part of the defendant towards the 
 plaintiff, and show a wrong done to the latter (c^). Thus, where the 
 defendant had contracted with the Postmaster-General to supply a 
 certain number of stage-coaches, and keep them in good working 
 order and condition, and fit for the road, and, through his neglect 
 to do the tiecessary repairs, one of the coaches broke down and 
 injured the coachman, it was held that the coachman could not 
 maintain an action against the coachmaker, as the negligence and 
 breach of duty on the part of the coachmaker were grounded purely 
 upon a breach of contract, and the coachman was neither a party 
 nor privy to that contract (e). So where a person sent his luggage 
 with his servant by a railway, aiid himself went by a later train, 
 and the railway company received the luggage as the servant's, it 
 was held that the master could not sue for its loss (/). But every 
 person who exercises an employment is bound, as we have seen, to 
 take especial care to do his work so as not to injure another by the 
 negligent performance of that work, whether wha,t he does is done 
 merely to please himself, or by Virtue of a contract made with 
 another {ante, pp. 411-415). If materials furnished to a workman 
 to be manufactured or worked upon are injured by the negligent 
 execution of the work, the owner of the materials, or the person 
 who furnished them to the workman, is the person to be made 
 plaintiff in an action for the neglect of duty ; but if the person or 
 the property of a stranger is injured by the negligent execution of 
 the work, the injured stranger is the person to be made plaintiff 
 {ante, pp. 411-415). 
 
 Every person who enters upon the performance of the work of 
 carrying merchandise or passengers is bound to exercise due and 
 proper care and skiU in the performance of the work, whether the 
 work is done under a contract or gratuitously {g), and every person 
 who has been injured by the negligent performance of the work 
 of carrying is entitled, as we have seen, to an action against the 
 carrier, although he is no party to the contract nnder which the 
 work was done {h). 
 
 There are other cases, also, in wMch a third person, though not 
 
 (c) Ooggs v. Bemwrd, Smith's L. C, (/) Becher v. Great East. Rwy., L. E., 
 6th ed 177. 5 Q. B. 241. 
 
 (d) ToUitv. Sherstone, 5 M. & W. 288. (g) See Austin v. Gt. West. RaU. Co., 
 
 (e) Wmterbottom v. Wright, 10 M. & W. L. K., 2 Q. B. 442. 
 
 115 BlakemoreY.Brist. and Exeter Bail. (A) OoUett v. Land, and North- West. 
 
 Co 8 Ell &B1. 1049; 27 Law J., Q. B. RaU. Co. Marshall v. York, <fcc., ante, 
 167 ; emte, pp. 14r— 15. PP- 505. 506. 
 
^18 PABTIES TO ACTIONS, [CHAP,, XX, 
 
 a party to a contract, may sue for the damage sustained if it be 
 broken. As, for example, if an apothecary administers improper 
 medicines to his patient, or a surgeon unskilfully treats him, and 
 thereby injures his health, the apothecary and the surgeon -will 
 be liable to the patient, although the father or friend of the patient 
 may have been the contracting party with the apothecary or sur- 
 geon : for, though no such contract had been made, the apothecaiy, 
 if he gave improper medicines, or the surgeon, if he took him as a 
 patient and unskilfully treated him, would be liable to an action 
 for a mis-feazance (i). 
 
 If a mason contract to erect a bridge or other work in a public 
 road, which he constructs, but not according to the contract, and 
 the defects of which are a nuisance to, the highway, he may be 
 responsible for it to a third persOn who is injured by the defective 
 construction, and he cannot be saved from the consequences of his 
 illegal act in committing the nuisance on the highway, by showing 
 that he was also guilty of a breach of contract, and responsible for 
 it. And it may be the same when any one delivers to another, 
 without notice, an instrument in its nature dangerous, as a loaded 
 gun, which he himself has loaded, and that other person to whom 
 it is delivered is injured thereby ; or if he negligently places it in 
 an improper situation, easily accessible to a third person, who sus- 
 tains damage from it, not supposing that a loaded gun would have 
 been placed- in such a spot (j). 
 
 Whenever an action of tort is founded upon a contract, it pro- 
 ceeds upon the assumption that the contract is good in law, and 
 can be enforced by action; if, therefore, the contract is verbal when 
 by law it is required to be in writing, no duty is created by it, and 
 an action founded upon such contract is not maintainable (A). 
 
 Of the remedies which tenants in common and joint tenants have 
 against each other.— r-li two several owners of houses have a river 
 or stream in common, and one of them corrupts it, the other shall 
 have an action against him for damages. And whenever one 
 tenant in common misuses the common property, or commits 
 waste, he is responsible to his co-tenant in common for the injury 
 he has done. If there be two tenants in common of a wood, and 
 one of them leases his part to the other, who cuts down young 
 timber trees and does waste, he shall be punished for a moiety of 
 the waste, and the lessor shaU recover a moiety of the place wasted: 
 but one tenant in common cannot maintain an action in the nature 
 of waste against the other, for cutting down trees of a proper age 
 and proper growth, for this is no injury to the inheritance ; but he 
 
 (») Parke, B., Longmeid v. HoUiday, 6 (j) Parke, B., Longmeid t. HolUdau, 6 
 
 TSixch.1%1. GUdu!eUy.Steggall,^&e.m; Exch. 767. i>ia:o» v. jBeH, 5 M. & S. 198. 
 6 ~B. N. C. 733, (]c) CarringUm v. Roots, ^ M. & W. 255. 
 
SECT. 1.] JOINT TENANTS, ETC. — BAILEES. 919 
 
 is entitled, in an action of account, to recover a moiety of the value 
 of the tree (J). 
 
 By the common law, indeed, joint tenants and tenants in com- 
 mon had no remedy against each other where one alone received the 
 whole profits of the estate : for he could not be charged as baiUff or 
 receiver to his companion,'unless he actually made him so ; but by 
 4 Anne, c. 16, s. 27, it is provided, that joint tenants and tenants 
 in common, and their executors and administrators, may have an 
 account against the others as bailiffs, for receiving more than their 
 just share or proportion (m). 
 
 Rights of the survivor of two Joint tenants or tenants in common. 
 — In case of the death of one of two joint tenants of lands or 
 chattels, the whole interest in the property passes, as we have seen, 
 to the survivor ; but in the case of the death of one of two tenants 
 in common of real property, the share and interest of the deceased 
 passes to his heir-at-law, and in the case of a tenancy in common 
 of chattels, to the personal representatives of the deceased. But in 
 the case of the death of one of two tenants in common of a patent, 
 the right of action for an infringement of the patent in the lifetime 
 of the deceased tenant in common survives to the other, and the lat- 
 ter is consequently entitled to recover the whole of the damages (n). 
 
 Trustee ,and cestui que trust. — In the case of a permanent injury 
 to real property in the occupation of a tenant to whom it has been 
 demised by a cestui que trust, the trustee in whom the legal estate 
 in reversion is vested is the proper person to sue for the injury to 
 the reversion, and not the cestui que trust, who has only an equitable 
 interest. " The cestui que- trust," observes Tindal, C. J., " has no 
 interest in law ; if he enters, his possession is considered the posses- 
 sion of the trustee, and any disposition made by him and adopted 
 by the trustee is considered the disposition of the trustee " (o). 
 
 Bailees of goods.— We have seen that many persons who have 
 only a special property in goods may maintain an action for 
 damages done to them, or for the conversion, detention, or loss of 
 them (ante, pp. 362—364, 452): sudh as a carrier, who is the mere 
 instrument of conveyance, or a workman, to whom goods have been 
 sent to be repaired or worked upon, or a warehouse-keeper, who has 
 them for safe custody, or an auctioneer or shopkeeper, to whom 
 they have been sent to sell (p), or the master of a vessel, or of a 
 canal boat, who is intrusted with the possession and management 
 of the vessel or boat, and its tackle and furniture (q), and many 
 
 (2) Mm-tyn v. KnowUyi, 8 T. B. 145 j (o) Fatowe v. Savage, 7 Bing^ 599. 
 
 ante VV 241 286 W WiUiams tt. MiUmgton,la.B\. 8i. 
 
 (m) See Jacobs t. Seward, L. R„ 5 Colwelij. Jteeves, 2 Campb. 576. 
 ■Engl & Ir App. 464. (q) -P*"* "■ Gaince, 1 Salk. 10. Moore 
 
 (»)' Smith Y.Lond. and North-West. v. Robinson, 2 B. & Ad, 817. 
 Raa. Co., 2 Ell. & Bl. 69. 
 
920 PAKTIES TO ACTIONS. [CHAP. XX. 
 
 others, to whom goods have been delivered for a special purpose, 
 and who do not pretend to any absolute property in them (r). 
 
 Master and servant. — The master is entitled, as we have seen, 
 to maintain an action for damages for a personal injury to his 
 servant, whereby he has been deprived of the services of the latter, 
 and for expenses incurred by him in curing his servant's personal 
 injuries, and recovering the benefit of his services. "Courts of 
 justice have allowed all the circumstances of the case to be taken 
 into consideration with a view to the calculation of the damages "'(s). 
 The master may claim, and will be entitled to recover, damages 
 not only for the loss of the ser\'ices of his servant up to the time 
 of the commencement of the action, but, if the servant continues 
 disabled, down to the time when it appears by the evidence that 
 the disability ma,y be expected to cease (t). A parent whose child 
 was, before the injury it sustained, capable of performing acts of 
 service, may, as we have seen, maintain an action for damages for the, 
 loss of the services of the child, if he can prove that the child was 
 living with him, and rendered him some sort of personal service (m). 
 The serVant himself, also, is entitled to an action for the damage 
 he has sustained by the tortious act : for loss of wages, bodily pain, 
 and the expenses he has incurred in procuring medical advice and 
 medicine, food; and lodging, which would otherwise have been 
 provided for him by his master. The servant himself who sustains 
 bodily pain and anguish, is the only person entitled to damages in 
 respect thereof {v). 
 
 Hiisband and wife (w). — If a man marries a woman seised in fee 
 of certain lands and tenements, he gains a freehold interest therein 
 in right of his wife ; and if he is the actual occupier of them, he is, 
 of course, entitled to sue for all damage done to his beneficial occu- 
 pation and enjoyment of the property. If the wife, on her marriage^ 
 was possessed of chattels real, such-as leasehold interests, estates by 
 statute merchant, statute staple, &c., the husband will be entitled 
 to them as a gift in law, and may, during the marriage, deal with 
 them as the absolute owner of them ; but if he fails to make any 
 transfer or disposition of them in his lifetime, and his wife survives 
 him, she will then take them by.survivorship. The husband cannot 
 devise them, but he may transfer them by deed (x). If the wife's 
 estates have, prior to the marriage, been conveyed to trustees, the 
 husband wiU then have no legal interest in the property, and no 
 right to maintain an action for any damage that may be done to it. 
 
 (r) Ma/rtimi v. Colea, 1 M. & S. 147. , («) Ante, p. 908. HaU v. ffoUcmder, i 
 
 («) Abbott, C.J., Ball y. Hollander,. 4 B. & 0. 662. 
 B. & C. 663 ; anU, p. 912. („) GlackieU t. SteggaU, 5 B. N. C. 736. 
 
 (t) HodsoU T. StaUebrass, 11 Ad. & E. (w) See "The Married Women's Pro- 
 
 iOl; post, eh. 22. Pkospbctive Damages. peity Act, 1870," 33 & 34 Vict. c. 93. 
 
 (x) Bac. Abr. Babon and Feme, C. 
 
SECT. 1.] HUSBAND AND WIFE. 921 
 
 If the husband, having an interest in the wife's real estate, grants 
 leases thereof during their joint lives, reserving rent to himself and 
 making his wife no party to the lease, then, as the reversion is in 
 the husband, he is the proper person to sue for damage done to his 
 reversionary estate (y), and for double value under 4 Geo. ?, c. 28, 
 s. 1, for holding over by tenants after notice to quit (2). If a feme 
 sole hath a right to have common for life, and she marries, and the 
 husband is hindered in his enjoyment of the right of common, he 
 alone may have an action for damages (a). 
 
 Actions for the conversion of the goods of a feme covert before 
 her marriage, and for wrongs done to her before marriage, should 
 be brought by the husband and wife jointly, as the chose in action 
 in case of the death of the husband would survive to the wife ; but 
 if the wife sues alone on such chose in action, she will be entitled 
 to damages, unless the non-joinder of the husband is pleaded in 
 abatement (&). The marriage operates, as we have seen, as an 
 absolute gift in law to the husband of all the goods and chattels 
 and personal property of the wife. The husband, therefore, after 
 the marriage, may demand possession of the chattels of the wife in 
 the hands of a stranger ; and if the latter has no lien upon 'them or 
 right to detain them, and refuses or neglects to deliver them up to 
 the husband, the latter may maintain an action for the detention 
 or conversion of them without joining the wife, as the tort is to the 
 husband : but if the action is brought for the conversion of deeds 
 and securities relating to property and choses in action which 
 would survive to the wife in case of the death of the husband, the 
 wife would be properly joined with the husband for conformity (c). 
 
 So absobite is the husband's right to all chattels and personal 
 property which come to his wife's hands after marriage, that if the 
 wife buys wearing apparel out of money settled to her separate use, 
 and received by her from her trustees,, such wearing apparel vests 
 by law in the husband as the legal owner thereof; and the same 
 rule prevails with regard to money and aU kinds of personalty, as 
 soon as it is placed by the trustees in the hands of the wife in the 
 execution of the trusts (d). In actions for the recovery of damages 
 for a personal wrong or violence done to the wife, where the action 
 would survive to her in the case of the death of her husband, the 
 wife ought to be joined as a plaintiff, although the declaration sets 
 forth and claims some special damage accruing to the husband; but 
 
 f7/1 WaUis V. Harruon, 5 M. & W. Mid. Count. Mil. Co., 13 0. B. 474. 
 
 W "I""™ "■ (p) j^yiing V. Whicher, 6 Ad. & E. 259. 
 
 (z) ffarcouriy. Wyman, 3 Exch. 824; Jd) Cwrne v. Brice, 7 M. & W. 183. 
 
 18 Law J Bxoh. 453. ■S»'-«« v. Peagrum, 13 C. B. 649. See 
 
 /„x pni'frv ■ 2 Bulstr. 14. "The Married Women's Property Act, 
 
 6 Ser V. MUnes, 3 T. R. 627. Mc- 1870," 33 & 34 Vict. c. 93. 
 gany.CuUU, 3 Eich. 612. Dalton t. 
 
922 PARTIES TO ACTIONS. [CHAP. XX. 
 
 where there is no injury to the person of the wife, and the action 
 would not survive to her, the wife ought not to he joined, she having 
 no legal interest in the damages to be recovered (e). The hushand, 
 for example, is alone entitled to sue for the loss of the services 
 of his wife through the tortious act of the defendant, and for the 
 expenses he has incurred in doctors and nurses in curing her of in- 
 juries resulting from an assault upon her by the defendant; but when 
 damages are sought to be recovered for the bodily pain suffered by 
 the wife from personal violence, or for injury to her personal feelings 
 from slanderous attacks upon her, the wife must be a plaintiff in 
 the action, and the husband be joined with her for conformity (/). 
 
 By the old law, therefore, it was often necessary to bring sepa- 
 rate actions for the recovery of the etntire damage resulting from an 
 injury to the person of the wife, in one of which the husband alone 
 was made plaintiff, and in the other the wife was joined for con- 
 formity; but now, by the Common Law Procedure Act, 1852, 15 
 & 16 Vict. c. 76, s. 40, it is enacted, that in any action brought by 
 a man and his wife for an injury done to the wife, in respect of 
 which she is necessarily joined as co-plaintiff, it shaU be lawful for 
 the husband to add thereto claims in his own right, and separate 
 actions brought in respect of such claims may be consolidated if 
 the court or a judge shall think fit ; but it is provided that in the 
 case of the death of either plaintiff such suit, so far only as relates 
 to the causes of action, if any, which do not survive, shall abate. 
 
 If a defendant has been guilty of a fraudulent representation that 
 a chattel is fit for use, knowing that it is not, and making the repre- 
 sentation in order that the chattel may be used by the plaintiff's 
 wife, and the wife uses it and is injured, botli the husband and wife 
 may be properly joined in an action for the deceit, but the wife 
 cannot be joined with the husband where the action is founded 
 merely on a breach of warranty without proof of wilful deceit (g). If 
 a person professing to sue as the husband of an injured female is 
 not in truth her husband, he has no right to maintain the action. 
 It is a good plea in bar, therefore, to an action professing to be an 
 action by husband and wife for an injury done to the wife, to plead 
 that the female plaintiff is not the wife of the male plaintiff (A,). 
 
 Where the husband and wife were seised of a messuage for their 
 joint lives and the life of the survivor, and all the estate and interest 
 of the husband became vested in the defendant, who permitted waste 
 during the lifetime of the husband, it was held that the wife who 
 survived her husband, could not maintain an action against the 
 , defendant in respect of such waste {i). 
 
 (e) Saville v. Sweeney, 4 B. & Ad. 523. {K) ChanUer v. Liudsey, 16 M. & W. 
 
 (/) Dengate v. Gardmer, i M. & W. 6. 82. 
 
 (</) Lonymeid t. HolUday, 6 Exch. 761. (i) Bacon v. Smitli, 1 Q. B. 345. 
 
SECT. 1.] INFANTS— HEIRS — DEVISEES, ETC. 923 
 
 Actions by married women after a judicial separation, or an order 
 for p-otection. — When a married woman is living separate from her 
 husband xmder a decree for a judicial separation, she is considered 
 as a/eme sole for the purpose of suing for damages for any wrong 
 or injury that she may have sustained (J). But until a decree for 
 a judicial separation has been obtained, she ought, although she is 
 living apart from her husband, to sue in his name for any trespass 
 that may have been committed in her dwelling-house {k). 
 
 Infants have a right to sue by guardian or prochein ami to 
 recover damages for injuries done to their persons or property 
 through the tortious act of another. 
 
 Heir-at-law, devisee, and personal representatives. — All causes 
 of action in respect of injuries of a continuing nature to real pro- 
 perty descend with the property to the heir-at-law on the death of 
 the ancestor, or vest in the devisee, remainderman, or personal 
 representative, in whom the legal estate in the land may be vested 
 by deed, will, or administration (Z). 
 
 The heir-at-law is the proper person to maintain an action for 
 the entire damage resulting from a nuisance of a continuing nature 
 to land which comes into his possession by descent. Thus, where 
 one John Eolf buUt a house so near to the house of Eichard Eolf that 
 the eaves of his said house did overhang the house of Eichard, and 
 pour water thereon, and afterwards both John and Eichard died, 
 and' their respective houses descended to their respective sons and 
 heirs-at-law, and the heir of Eichard, on request made to him by 
 the heir of John, did not reform the wrong, whereupon the latter 
 brought an action against the heir of Eichard, who did demur in 
 law, it was adjudged that the action was maintainable, because the 
 defendant did not on request reform the nuisance which his father 
 had made, but suffered it to continue, to the prejudice and damage 
 of the plaintiff, son and heir of him to whom the wrong was done (m). 
 
 So, where a nuisance erected on the land of a devisor in the 
 lifetime of such devisor was continued afterwards in the time of 
 the devisee, it was held that the devisee should have an action for 
 it, for the continuance thereof is a new erecting of such nuisance (w). 
 
 When the reversionary interest of a deceased leaseholder, who 
 has underlet the premises demised to him, becomes vested in his 
 personal representatives, they are, of course, the proper persons to 
 sue for damages in respect of permanent injuries to the property 
 of a continuing nature, diminishing the value of their reversionary 
 
 U) 20 & 21 Vict. c. 85, s. 26 ; amte, (m) 2 Hen. 413 ; 31 Ed. 3, Voucher, 
 
 BB 880 885. 272, cited in PenruMock's case, 5 Co. 
 
 (h) Boggett v. Frkr, 11 East, 301. 101 a. OiOon v. BodMngtonj cited 5 B. 
 
 (A Vivian v. Champion, 2 lA. Eaym. & C. 268. 
 J226. W Some v. Bwrwish, Cro. Jac. 231. 
 
924 PAETIES TO ACTIONS. [OHAP. XX. 
 
 estate {ante, pp. 202, 289). When the damage done to real property 
 was not of a continuing nature, but accrued wholly in the lifetime 
 of the testator, the heir-at-law, devisee, or remainderman, could not 
 sue in respect of it ; neither could the personal representative, in 
 consequence of the old maxim of the common law, actio personalis 
 moritur cum persond. Thus, if trespassers entered upon the land 
 and cut down trees, or gathered, carried away, and sold growing 
 crops and fruit ; or set fire to buildings, and caused tliem to be 
 utterly consumed, the heir could not sue, because the damage was 
 sustained in the lifetime of the ancestor, and the personal repre- 
 sentatives could not recover the damages that had been sustained, 
 because they were personal to the deceased, and the remedy died 
 with him (o). But by 3 & 4 Wm. 4, c. 42, s. 2, reciting that there 
 was no remedy provided by law for inJTjries to the real estate 
 of any person deceased, committed in his lifetime, it is enacted, 
 that an action of trespass or case may be maintained by the exe- 
 cutors or administrators of any person deceased for any injury to 
 the real estate of such person, committed in his lifetime, for which 
 an action might have been maintained by svich person, so as such 
 injury shall have been committed within six calendar months 
 before the death of such deceased person, and provided such action 
 shall be brought within one year after the death of such person. 
 
 On the death of an owner of gbods and chattels in the hands of 
 bailees and depositaries, the right of property in the chattels vests 
 in the personal fepresentatives, and if the bailee has no lien upon 
 them, or interest in them, or right to detain them as against the 
 owner, the personal representatives may demand possession of 
 them ; and if the bailee refuses to deliver them he may be sued 
 for the detention or conversion of the property (jp). Being them- 
 selves the owners of the property on the death of the testator or 
 intestate, they are the proper persons to sue in respect of trespasses 
 committed by persons who take the goods out of their actual or 
 constructive possession, or out of the custody of their servants or 
 agents (q) ; but they cannot, at common law, sue in respect of any 
 detention or conversion of the property in the lifetime of the 
 deceased owner, nor for a trespass in taking it away, by reason of 
 the maxim actio personalis moritur cum persond. To remedy this 
 it was enacted by 4 Ed. 3, c. 7, that executors shall have actions 
 for a trespass done to their testators in respect of the goods and 
 chattels of the said testators carried away in their lifetime, and 
 recover their damages in like manner as they whose executors 
 they be should have had if they were in Life. By 25 Ed. 3, c. 5, the 
 
 (o) Adam v. Bristol, 2 Ad. & E. 389. {p) HoUis v. Smith, 10 East, 292; ante, 
 
 Maymond v. Fitch, 2 C. M. & K. 597. pp. 362—364, 452, et seq. 
 
 (q) Adams T. Cheverel, Cro. Jac. 113. 
 
SECT. 1.] EXECUTOES AMD ADMINISTRATORS. 925 
 
 benefit of this statute is extended to the executors of executors ; 
 and administrators are witliin the equity of the statute. It has 
 been held that an action is maintainable by executors under this 
 statute against a defendant for cutting down and carrying away a 
 growing crop of wheat from the testator's land in his lifetime, 
 because corn growing is a chattel ; but that if the defendant had 
 cut down the corn and let it lie, no action would have been 
 maintainable by the executor; nor if grass had been cut and 
 carried away by the defendant ; because grass is part of the free- 
 hold (r). 
 
 As actions for personal wrongs die with the person, it follows 
 that executors and administrators cannot maintain an action for a 
 libel upon their deceased testator or intestate, or for an assault or 
 false imprisonment, or any act of negligence or violence causing 
 injury to the person, not ending in death. But if the declaration 
 of the cause of action, though framed in tort, is in substance for a 
 breach of contract which has damaged the personal estate of the 
 testator, the action is maintainable, as the substance, and not the 
 form, of the thing must be regarded. Thus, if a person contracts 
 with a coach-proprietor to be safely and securely carried from one 
 place to another, and through the negligence of such proprietor or 
 his servant the coach be overturned, in consequence of which the 
 passenger so contracting dislocates or fractures a liihb, and owing 
 to his confinement in procuring a cure, his personal property 
 sustains an injury, although he, during his lifetime, would have 
 the option to sue the proprietor either on contract or tort, still his 
 representative may after his death maintain an action on the 
 contract to carry him safely, and recover damages for the injury 
 which has accrued to his personal estate from the breach thereof 
 "Where the plaintiff suing as administrator set forth in his declara- 
 tion that the defendant was employed by the intestate in his 
 lifetime to act as his attorney to investigate the title to an estate 
 the intestate had purchased, that the defendant entered upon the 
 employment, but neglected to investigate the title, and caused the 
 intestate to accept a defective title by representing, it to be a good 
 title, showing special damage to the personal estate, it was held 
 that the action was clearly maintainable, as the intestate in his 
 lifetime might have sued in contract as well as in tort (s). But as 
 regards personal injuries unconnected with contract causing the 
 death of the party injured, it has been enacted, as we have seen, 
 by the 9 & 10. Vict. c. 93 {ante, p. 408), that whenever the death of 
 a person has been occasioned by any wrongful act, or by neglect or 
 default, such as if death had not ensued would have entitled the 
 
 (r) Emerson v. Emerson, 1 Ventr. 187. (») Knight v. Quarks, 4 Moore, 541. 
 
926 PARTIES TO ACTIONS. [CHAP. XX 
 
 injured party to maintain an action,, and recover damages in respect 
 thereof, then the person who would have been liable if death had 
 not ensued shall be liable to an action' for damages, to be brought 
 in the name of the executor or administrator 6i the person 
 deceased, or by the persons beneficially interested. 
 
 Administrators. — ^An action is maintainable by an administrator 
 for a wrongful seizure by the defendant of the intestate's goods 
 made between the death of the intestate and the grant of the 
 letters of administration (t) ; and an action is maintainable in 
 respect of goods wrongfully sold after the death of the intestate, 
 and before the grant of the letters of administration (u). 
 
 Trustees of lanhrupts may bring or defend any ^action, suit, or 
 other legal proceeding relating to the property of the bankrupt {v). 
 Such trustees also, where any portion of the property of the 
 bankrupt consists of things in action, may institute suits in their 
 ofacial names, and such things shall, for the purposes of such 
 action, &c., be deemed to be assignable at law, and to have been 
 duly assigned to such trustee (w). In all actions by or against 
 trustees of a bankrupt, the character in which the plaintiff or 
 defendant is stated on the record to sue or be sued is not 
 in any case to be considered in issue, unless it is specially 
 denied (x). By the 106th, 107th, and 108th sections, provision is 
 made for the admission in evidence in all courts of the various 
 proceedings in bankruptcy, provided they purport to be sealed or 
 signed as thereiii mentioned. And by the 109th section, judicial 
 notice is to be taken of the various seals of the Court of Bank- 
 ruptcy, and of the signature of the judge or registrar of any such 
 court. The production of the certificate of appointment of the' 
 trustee in bankruptcy under the seal of the court (see s. 18) would 
 therefore, (semble), be conclusive evidence of his title, although the 
 seal was not in fact affixed till after the commencement of the 
 action (y). A party to a suit, however, may, by his conduct and 
 actions in dealing with trustees in bankruptcy, have so recognised 
 their title as to be afterwards precluded from requiring formal proof 
 of it (»). 
 
 Transfer of rights and liabilities ex delicto to trustees of bank- 
 rupts. — We have already seen that all the real and personal estate 
 
 («) Tharpe v. StaWmod, 5 M, & Gr. (x) Eeg. Gen. Hil. T., 16 Vict., 1 Ell. 
 
 777. i Bl. App. Ixxix. 
 
 («) Foster y. Bates, 12 M. & W. 226. (y) KeUy v. Morray, L. K., 1 C. P. 667. 
 
 («) 32 & 33 Vict. 0.71, s. 25. As to The 18th section, however, has the words 
 
 their power to compromise disputes, see "and such appointment shall date irom 
 
 s. 27. the date of the certificate," which were 
 
 (jo) Sect. 22. As to a trustee in bank- not in the Act, 24 k 25 Vict. c. 134, under 
 
 ruptcy fraudulently omitting to prosecute which the above case was decided, 
 
 an action, see Benjkld v. Solomons, 9 Ves. (z) Sichinson v. Cowwrd, 1 B. & Aid. 
 
 84. Smith V. Mcgat, L. K., 1 Eq. Ca. 397. 677. Inglis v. Spence, 1 Or. M. & K. 432. 
 
SECT. l.J TRUSTEES OF BANKRUPTS. 927 
 
 and effects of bankrupts, witli certain exceptions, are vested in the 
 trustees in bankruptcy {ante, p. 34-4, et seq). The trustees, there- 
 fore, are the proper parties to maintain an action for injuries done 
 to real or personal property, which has become vested in them by 
 reason of the bankruptcy (a) ; but they cannot maintain an action 
 for injuries to the person of the bankrupt. They cannot sue, for 
 example, for damages for a libel upon him, although the injury 
 occasioned thereby to the man's reputation may have been the sole 
 cause of his bankruptcy ; nor can they sue for damages for an 
 assault upon the bankrupt, or for the seduction of his servant (6) ; 
 and the same may be said of some purely personal injuries arising 
 out of breaches of contracts, such as contracts to cure or to marry ; 
 and if in these cases a consequential damage to the personal estate 
 follows from the injury to the person, that damage may, neverthe- 
 less, be so dependent upon, and inseparable from, the personal 
 injury, which is the primary cause of action, that no right to main- 
 tain a separate action in respect of such consequential damage 
 will pass to the trustees. But where the primary and substantial 
 cause of action is not, properly speaking, personal to the bankrupt, 
 but the injury to the person is the consequence of an injury to the 
 personal estate, the injury to the personal estate is the primary and 
 substantial cause of action, and such right of action wiU pass to the 
 trustees as part of the personal estate (c). 
 
 "Where a plaintiff who had become bankrupt complained that 
 the defendant had seized his goods under a false and pretended 
 olaim of right ; that he was thereby much annoyed and prejudiced 
 in his business, and believed to be insolvent ; and that by means of 
 the premises certain of his lodgers, being induced to believe that 
 he was in embarrassed circumstances, and that the defendants were 
 entitled to seize the goods for a debt, quitted the house, and the 
 declaration then claimed special damages, it was held, that as the 
 jury were entitled upon the declaration as it stood to give vindictive 
 damages for the personal injury far beyond the mere value of the 
 goods, a plea of the bankruptcy of the plaintiff, and of the transfer 
 of the causes of action to the assignees, afforded no answer to the 
 plaintiff's claim {cl). "There is no doubt," observes Lord Campbell, 
 " that a cause of action which is exclusively confined to injury 
 to property will pass to the assignees, but there is a difficulty 
 when there is a mixed case of injury to the person and injury 
 
 (o) Michea V. HugJUs, 6 Bing. 689, (5) Hatba/rd v. Crowther, 8 M. & W. 
 
 although the bankrupt of whom &ey are 601. 
 
 trustees was an uncertificated bankrupt (o) Drake v. Beckham, H M. & W. 
 
 at the time of their appointment, i.e., if 319. Hodgson v. Sidmey, L. E., 1 Exch. 
 
 the trustees under the first bankruptcy . 313. 
 
 do not Interfere: Morgan v. Knight, 33 {d) Brewer v. Drew, 11 M. & W. 625: 
 Law J., C. P. 168. 
 
928 PAKTIES TO ACTIONS. [CHAP. XX. 
 
 to property. It may be that in such a case the law will give 
 an« action to the bankrupt for the personal injury sustained by 
 him, and an action to the assignees for the injury done to the 
 property" (e). 
 
 If the bankrupt, notwithstanding his bankruptcy, continues in 
 the possession and occupation of land which has been demised to 
 him, he may maintain an action for trespasses or injuries done to 
 the land, if the trustees do not interpose and take the lease (/). 
 But if he goes away and abandons the possession of the premises, 
 he has no right of action {g), unless he returns and resumes posses- 
 sion, with the assent of the trustees or the landlord, before any 
 other person has entered and become the occupier of the property (A). 
 If the trustees think fit to take to the lease, they are then the 
 proper parties to sue for any trespass or injury committed upon the 
 demised premises (i). 
 
 Bight of the trustees to the ianhrupt's wife's choses in action. — 
 When a right of action of the bankrupt's wife is of such a character 
 that if vested in the bankrupt alone, it would have passed to the 
 trustees, such right of action passes to the trustees, subject to the 
 condition that it is reduced into possession by them during the 
 joint lives of the husband and wife, and that may be done in a 
 joint action by the trustees and the wife (f). 
 
 Of the number of the plaintiffs in actions ex delicto — Joint and 
 separate rights of action. — Joint tenants of lands, and all persons 
 having a joint interest in property, real or personal, should be 
 joined as plaintiffs in actions for damages for injuries done to their 
 joint property, as we have abeady seen. Tenants in common 
 should also, as we have seen, be joined as plaintiffs in actions 
 for injuries to their common property, such as trespasses upon their 
 land, nuisances to their estates, and for all trespasses and injuries 
 to their common property; because, though their estates are several, 
 yet the damages survive to all, and it would be unreasonable for 
 them to bring several actions for one single injury (k). If a 
 nuisance to the land of two tenants in common be continued after 
 the death of one of them, the devisee of the deceased tenant in 
 common should join the survivor in an action for such nuisance (l). 
 
 Trustees in bankruptcy taking, as they do, a joint interest in 
 the bankrupt's estate, should all be joined as plaintiffs in an action 
 
 (e) Sogers v. Spence, 12 01. & Fin. 720. (g) Clarke v. Oahert, 8 Taunt. 762. 
 
 But see per Bramwell, B,, in Hodgson t. (h) Topham v. Dent, 6 Bing. 515. 
 
 Sidney, supra ; and Morgan v. SMile, k) Hancock v. Oaffyn, 8 Bing. 367. 
 
 L. K., 7 Q. B. 611. \j) Richbea v. Alexamder, 30 Law J., 
 
 (/) See s. 23, which provides that if C. P. 268. 
 
 the trustees disclaim any lease or other (k) Hare v. Celey, Cro. Eliz. 143. Some 
 
 onerous property, the lease shall be deemed v. JSa»ms^, Cro. Jao. 231. 
 
 to be surrendered from the date of the (f) Bac. Abr., Jomt-Tmmts, &c., K. 
 order of adjudication. 
 
SECT. 1.] MIS-JOINDER OF PLAINTIFFS. 929 
 
 brought by them in their representative character in respect of 
 injuries to such estate (m). 
 
 But parties cannot properly be joined as plaintiffs in an action 
 where the wrong done to one is no wrong to the other, as in the 
 case of false imprisonment, assault, and personal injuries (n). If 
 slander is published concerning two partners, containing imputa- 
 tions injurious to them in their trade and affecting their joint 
 interests, they may sue jointly for damages (o). 
 
 Where the duty springs out of a joint contract, if either of the 
 parties has a separate interest, he may sue separately in respect 
 of such separate interest (j)). Thus, where the defendants, who 
 carried on the business of accountants, were called in to adjust 
 the accounts and settle the balance due to each of three partners 
 separately, it was held, that the defendants owed a duty as well to 
 each member of the firm as to the three, that there was a contract 
 with each partner individually, as well as a contract with the firm 
 collectively, and that one partner alone might maintain an action 
 for the damage sustained by him individually by reason of the 
 negligence of the defendants in making out the accounts (q). 
 
 Provision is made, as we shall presently see (post, s. 3), by the 
 Common Law Procedure Act, 1852, 15 & 16 Vict. c. 76, for amend- 
 ing a non-joinder or mis-joinder of plaintiffs, either before or at the 
 trial, upon such terms as the court or a judge may think proper. 
 
 By 23 & 24 Vict. c. 126, s. 19, it is enacted, that the joinder of 
 too many plaintiffs shall not be fatal, but every action may be 
 brought in the name of all the persons in whom the legal right 
 may be supposed to exist ; and judgment may be given in favour 
 of the plaintiffs by whom the action is brought, or of one or more 
 of them, or, in case of any question of mis-joinder being raised, 
 then in favour of such one or more of them as shall be adjudged 
 by the court to be entitled to recover : Provided always, that the 
 defendant, though unsuccessful, shall be entitled to his costs occa- 
 sioned by joining any person or persons in whose favour judgment 
 is not given, unless otherwise ordered by the court or a judge. 
 
 (m) Sndgrove v. HaH, 2 Stark. 424. (p) Ecdeston v. (Mpsham, 1 Wiiis. 
 
 Janes v. Smith, 1 Exch. 831. Saund. 154. 
 
 (n) Bwrratt v. Collins, ante, p. 594. (?) Story v. Richa/rdson, 8 So, 291 ; 6 
 
 (o) Le Panu v. Malcolmson, 1 H. L. C. B. N. 0. 123. 
 637; ante, p. 811. 
 
930 PARTIES TO ACTIONS. [OHAP, XX. 
 
 SECTION II. 
 
 OF ACTIONS EX DELICTO AND THE PARTIES TO BE MADE DEFENDANTS 
 IN SUCH ACTIONS (r). 
 
 Tenants in common. — If one tenant in common misuse that 
 which he has in common with another, he is answerable to the 
 other in an action as for misfeazance (s). He is responsible to his 
 co-tenant in common, as we have seen, for cutting down trees, or 
 pulling down walls, or the doing of any act tending to the lasting 
 injury of the common property (t). So an action of trespass is 
 maintainable by one tenant in common against his co-tenant in 
 common for digging and carrying away brick-earth or turf, as it 
 destroys the subject-matter of the tenancy in common, and amounts 
 in contemplation of law to an actual ouster (u). The putting of a 
 lock upon a gate, however, by one tenant in common, without 
 more, is not sufficient evidence of ouster to sustain an action of 
 trespass (v). 
 
 Corporations.' — A corporation, by accepting a grant of land from 
 the crown upon certain conditions as to the repair of sea-walls and 
 defences, may render themselves liable to an action of tort at the 
 suit of any party sustaining any private and peculiar damage from 
 the non-repair of such sea-walls, &c. (w). A corporation may also 
 be made responsible in an action for a trespass in breaking and enter- 
 ing a close, and for seizing goods, for every corporate body is liable 
 in tort for the tortious acts of its agents and servants acting in the 
 ordinary service of the corporation, without any order or authority 
 under its common seal (x). A corporation may give a warrant to 
 distrain without deed, and thus render itself responsible for a 
 wrongful distress, and the jury may infer the agency of the cor- 
 poration in the matter of a wrongful distress or seizure of goods 
 from the fact of their having received the proceeds of the seizure (y). 
 
 Individuals constituting a foreign corporation cannot be made 
 personally Kable for its contracts or torts in this country (^) ; but the 
 corporation, if it carries on business here, may (semUe) be sued on 
 
 ()•) Parties to be made defendants in (v) Jacobs v. Sewa/rd, L. R., 5 Engl. & 
 
 particular actions liave already been con- Ir. App. 464. 
 
 sidered under their appropriate heads, (w) Mayor, die, of Lyme Regw \. Hen- 
 see Index, Ml voce. ■ ley, 1 B. N. 0. 240. 
 
 (») Ld. Kenyon, C. J., MaHyn v. (a) Maund v. Manm. Rail. Co., 4 M. & 
 
 KnowUys, 8 T. B. 145. Gr. 452 ; 5 Sc. N. R. 457. See ante, 
 
 (t) Holt, C.J., Waterman v. Soper, 1 p. 596. 
 
 Ld. Eaym. 737. Cubitt v. Porter, ante, (y) Smith v. Birm. Gas Co., 1 Ad. & E. 
 
 p. 286. 526. ■ ■ 
 
 («). Wilkinson y. Haygarth, 12 Q. B. * (z) General Steam Nav. Co. v. GuiUou, 
 
 845. IIAI.&W. 877. 
 
SECT. 2.] COEPOEATIONS. 931 
 
 a cause of action arising in this country, and service upon the head 
 officer of the English branch is sufficient (a). 
 
 An action for a wrong lies against a corporation where the thing 
 done is within the purpose of the corporation, and it has heen done 
 in such a manner as to constitute what would be an actionable 
 wrong if done by a private individual. Therefore, where an action 
 was brought against the London General Omnibus Company for 
 interfering with the rights of the plaintiff, by driving their omni- 
 buses in such a manner as to molest him in the use of the highway, 
 it was held that as the company was incorporated for the purpose 
 of driving omnibuses, and the whole of the wrongful acts charged 
 in the declaration of the cause of action were acts connected with 
 the driving of their vehicles along the public highway, and were, 
 therefore, within the purpose of their incorporation, an action for 
 damages was maintainable against them. " We think it extremely 
 important," observes Erie, J., " where such companies admit that 
 they have in fact intentionally committed a wrong, that the public 
 , should have a remedy against them, and not be driven to an action 
 against their servants and others whom they have employed, and 
 who may be entirely incapable of giving the recompense which the 
 law may award " (6). 
 
 A corporation may become liable in damages for the improper 
 and careless construction and management of dangerous premises 
 and dangerous machinery (c) ; for an assault and battery, or false 
 imprisonment, committed by its servants in the exercise of its 
 orders, or in the discharge of their duty, without proof of any 
 authority under seal from the corporation {d). But where a cor- 
 poration have employed a solicitor to, conduct legal proceedings, the 
 corporation are not necessarily liable for unlawful acts of which the 
 solicitor may have been guilty in the conduct of the proceediags (e), 
 nor is his appearance to conduct a prosecution necessarily evidence 
 as against the company that they ratified the assault complained 
 of (/). A corporation aggregate may, as we have seen, be made 
 responsible for the negligence and unskilfulness of its servants in 
 the execution of the ordinary work and business of the corpora- 
 tion, without any proof that the work was ordered under the 
 common seal {g). 
 
 It has been thought that an action for a malicious prosecution 
 
 (a) Newby v. Colt's Patent Fire-Arms ante, p. 585. 
 
 Co., L. B., 7 Q. B. 293. (e) Eggington v. Maym- of Lichfield, 5 
 
 (6) Qreen v. LoTid. Gen. Omnibus Cq. Ell. & Bl. 112. 
 
 29 Law J., C. P. 13. (/) Walk&- v. South-East. Rwy., L. K., 
 
 (c) Coidey v. Mayor, iSic, of Su'uder- 5 C. P. 643. 
 
 land, ante, p. 399. (g) Scott v. Mayor, <L-c., of Manchester, 
 
 (d,) Eastern Co. Rail. Co. t. Broom, 6 ante, p. 738. 
 Exch. 314. Gog V. Gt. North. Rail. Co., 
 
 2 
 
932 PARTIES TO ACTIONS. [CHAP. XX. 
 
 is not maintainable against a corporation aggregate (A), but express 
 malice may be imputed to, and proved against, a corporation, and 
 an action of libel may consequently be maintained against a cor- . 
 poration for the publication of libellous intelligence tlarough the 
 medium of their servants, acting in the course of their ordinary 
 employment in the management of an electric telegraph (*'). If it 
 be essential to the conversion of property by a corporation that the 
 act of conversion should have been authorised by them under their 
 common seal, a jury may, from proof that the conversion was com- 
 mitted by the servants and agents of the corporation in the exercise 
 of their ordinary employment and service, presume that the act was 
 done under the common seal (/). And in the case of corporations 
 called into existence for trading purposes, and carrying on trade 
 through the medium of their servants and agents, the corporation 
 may be made responsible ,for a conversion of property by such 
 servants and agents, acting in the ordinary course of their employ- 
 ment in the business of the corporation (k). If the wrongful act 
 was not done by the servant or agent of the corporation in the exer- 
 cise of his ordinary employment, or in the discharge of his ordi- 
 nary duties as servant of the corporation, it must be shown that the 
 corporation has ratified and adopted the act. 
 
 When a joint-stock company is respo'iisiMe for the tortious acts of 
 the directors arid managers. — We have already seen that railway 
 companies and joint-stock companies are responsible for the tor- 
 tious acts of their directors and managers, when acting in the 
 discharge of their official duties, and within the scope of their 
 authority as the managers of the company {ante, pp. 584, 596). 
 Wliere the plaintiff set forth that he was entitled tq certain " ear- 
 marked shares " in a railway company, that these shares had been 
 wrongfully declared forfeited, that the forfeiture had been con- 
 firmed at a general meeting of the shareholders of the company, 
 and the shares directed to be sold, it was held that there was a 
 good cause of action against the company. So, where the directors 
 had been guilty of a wrongful act of omission in not registering the 
 plaintif["s name in their books, whereby the plaintiff was deprived 
 of the ordinary privileges of a shareholder, and of any profits that 
 might have arisen upon the shares, it was held that the company 
 was resp6nsible for the wrongful act of the directors (J). 
 
 But where the directors have acted beyond the scope of their 
 authority the company is not responsible for their acts, but the 
 directors themselves are the parties to be made personally respon- 
 
 (/t) Stevens v. Mid. Oo. Rail. Co., 10 16 East, 6. 
 Exch. 352. ■ (k) Giles v. Taff VcUe Rail. Co., 2 Ell. 
 
 (i) Whitfield t. S.-E. Rail. Co., 27 Law & Bl. 831. 
 J.,Q. B. 229 ; Ell. Bl. & EU. 121. (I) Catchpole v. Ambergate, d-c. Rail. 
 
 {j) Ywrborough v. Bank of England, Co,, 1 Ell. & Bl. 120. 
 
SECT. 2.] DIEECTOKS, ETC. — COMMISSIONERS, ETC. ' 933 
 
 sible in damages. Thus, where directors have signed false and 
 fraudulent reports of the state and circumstances of a joint-stock 
 company, such directors, and not the company, are the proper 
 parties to be sued for the damages resulting from the misrepresen- 
 tation. Ko body of shareholders can authorise directors to put 
 forward fraudulent representations and false accounts of the trans- 
 actions of the company, so as to render the company at large 
 responsible for the fraud. That is a course which no body of share- 
 holders could sanction against a single dissentient, or against a 
 single absent, shareholder. Where, therefore, false reports of the 
 actual condition and circumstances of a joint-stock company were 
 knowingly and designedly printed and circulated by the defendants 
 and others in concert with them, with their signatures attached, 
 and the plaintiff, relying upon the representations contained in these 
 reports of the flourishing state of the concern, bought shares in it, 
 and lost his money, and incurred serious liabilities, it was held that 
 he was entitled to maintain an action for damages against the 
 defendants (m). 
 
 Trustees and commissioners of 'public works. — -We have already 
 seen that commissioners acting strictly in the execution of a sta- 
 tutory authority, and not exceeding their jurisdiction or powers, 
 are not personally responsible, nor are their officers or servants 
 acting under them personally responsible, in an action for damages, 
 to a private individual who has sustained damage from their 
 authorised acts {n) ; but if they act in a careless and oppressive 
 manner, and are guilty of negligence or misconduct in the execu- 
 tion of the statutory -authority, they are, as we have seen, respon- 
 sible in damages for the consequences of their acts (o). Under 
 certain Acts of Parliament, trustees and commissioners acting in the 
 discharge of public duties are, as previously mentioned, relieved 
 from aU personal liability whilst acting in the execution of the 
 powers of the statute {ante, p. 741), but are charged with the duty 
 of imposing rates and collecting a fund, out of which all the 
 expenses tacurred in carrying the Act into execution are to be made 
 good (ante, p. 742). 
 
 When it is provided by statute that commissioners or trustees 
 appointed for the execution of public works shall be sued by their 
 clerk, or treasurer, or public officer, an action is' not maintainable 
 against such officer, except where it could have been • suppoited 
 against the commissioners or trustees themselves (p) ; but when- 
 
 (m) Ante, pp. 839, 863. Damdson v. (o) Ante, pp. 734—746. Bovlton v. 
 
 Tuiloch^ 3 Macq. 783. Crowther, 2 B. & C. 706. Sutton v. Clarke, 
 
 (n) See CracJcneUv. Mayor, &c., ofThet- 6 Taunt. 43. Harrii v. Baker, 4 M. & S. 
 
 ford, L. E., 4 C. P. 629, as to Commis- 29. 
 
 sioners for the improvement of naviga- (jp) Hall v. Smith, 2 Biiig. 158. 
 tion. 
 
934 PARTIES TO ACTIONS. [CHAP. XX. 
 
 ever there has been a breach of duty on the part of the commis- 
 sioners or trustees causing a private injury to another, an action is 
 maintainable against their clerk or public officer to recover com- 
 pensation for such breach of duty {q). The clerk is not in general 
 personally liable to make compensation out of his own private 
 means, he being only the nominal defendant; but the funds of the 
 trustees or commissioners may be made answerable for satisfaction 
 of the damages (r). 
 
 Military and naval officers are mot responsible for arrests made 
 by them in the exercise and discharge of their military and naval 
 authority (s) ; but if they exceed their authority, and make arrests 
 for offences which are not military offences, and over which they 
 have no jurisdiction or authority, they will be responsiHe in 
 damages for their unlawful acts (t). 
 
 Master and servant. — The maxim, quifa^itper aliumfaeitpef se, 
 renders the master liable, as we have already seen, for all the 
 negligent acts of the servant in the course of his ordinary employ- 
 ment (u). 
 
 Principal and agent (x). — In order to make the principal liable 
 in tort for an injuiy caused by the wrongful act of the agent, it 
 must be shown that the act was within the scope of the authority 
 given by the party against whom the action is brought, for if the 
 servant was not acting in the due course of his employment for his 
 master, but in contravention of his duty to him, and against his 
 interest,. the master is not, as we have seen, responsible for the con- 
 sequences of the act {y). Where a railway passenger was taken 
 into custody by a railway servant by command of a superintendent, 
 for travelling on the railway without having paid his fare, with 
 intent to avoid payment thereof («), and the charge fell to the 
 ground, and an action was brought against the company for an un- 
 lawful imprisonment, it was held that they were liable in damages, 
 for it must be presumed that a superintendent of trafl&c, or of 
 police, and all officers in authority, upon the line, or at the station, 
 had power on behaK of the company to determine whether the 
 servant of the company should, or should not, arrest persons for 
 criminal frauds upon the company (a). 
 
 Subsequent ratification and adoption of a ivronc/fiol act by parties 
 for whose use and benefit the act was done. — " He that receiveth a 
 
 (?) Cane v. Chcyamaii, 5 Ad. & B. 647. (y) ColemmiY. Riches, 16 C. B. 104; 24 
 
 (r) WormmU v. Hailstone, 6 Bing. Law J., C.'P. 126. UdeU v. Atherton 
 
 676. 7H. &N. 181. See anie, p. 386. 
 
 (s) Bradley v. Arthur, 4 B. & C. 305. (z) See 8 Vict. c. 20, ss. 103, 104. 
 
 («) Warden v. Bailey, 4 Taunt. 67. (a) Ooff t. Gt. NoHh Rail. Co., 30 Law 
 
 (m) Ante, pp. 23—26, ill, a seq. Shar- J., Q. B. 148, qualifying and explaining 
 
 rod T. Lond. and N.- W. Rail. Co., 5 E^h. Roe v. Rirhmhead. Lane, &e., RaU Co 7 
 
 S35. Exch. 41. See ante, p. 684. ' 
 
 (x) See ante, pp. 862, 863, ■" 
 
SECT. 2.] PKINCIPAL AND AGENT— RATIFICATION. 935 
 
 trespasser, and agrees to a trespass after it is done, is no trespasser," 
 observes Lord Coke, " unless the trespass was done to his use or 
 for his benefit, and then his agreement subsequent amounteth to a 
 precedent commandment, for in that case om.nis ratihahitio retrotra- 
 hitur et mandato priori cequiparatur" (&). But to make the 
 subsequent ratification equivalent to a precedent commandment, 
 the act of trespass must have been committed in the name, and 
 avowedly on behalf and for the benefit, of the party subsequently 
 ratifying it. If the trespass was not done for his use or benefit, or 
 he is not in a situation to have originally commanded the act, then 
 his subsequent assent does not make him a trespasser (c). " It is 
 a known and well-established rule of law," observes Tindal, C.J., 
 " that an act done for another by a person not assuming to act for 
 himself, but for such other person, though without any precedent 
 authority whatever, becomes the act of the principal if subsequently 
 ratified by him. In that case the principal is bound by the act, 
 whether it be for his detriment or advantage, and whether it be 
 founded on a tort or a contract, to the same extent and with all the 
 consequences which follow from the same act if done by his previous 
 authority. Such was the precise distinction taken in the Year 
 Book, 7 Hen. 4, fo. 35, where it was held that if a bailiff took a 
 heriot, claiming property in it himself, the subsequent agreement 
 of the lord would not amount to a ratification of his authority as 
 bailiff at the time ; but if he took it at the time as bailiff of the 
 lord, and not for himself, without, however, any command of the 
 lord, yet the subsequent ratification by the lord made him bailiff at 
 the time " {d).. 
 
 What amounts to evidence of ratification of a wrongful act. — But 
 to make a man a trespasser by relation from having ratified and 
 adopted an act of trespass done in his name, and for his benefit, it 
 must be sliown that the act was ratified and adopted by him with 
 full knowledge of its being a trespass, or of its being tortious, or it 
 must be shown that in ratifying and taking the benefit of the act 
 he meant to take upon himself, without inquiry, the risk of any 
 irregularity which might have been committed, and adopt the 
 transaction, right or wrong. Promises to make inquiries, expressions 
 of disapprobation of the conduct of the agent, accompanied by 
 offers of compromise and overtures to purchase peace by returning 
 the property taken, or paying the value of it, are of themselves no 
 evidence of the ratification of the wrongful act (e). 
 
 Servants and agents. — All persons procuring, commanding, 
 
 (h) i Inst. 317. Dallas, C.J., Hull v. (d) Wilson v. Tummon, 6 Sc. N. E. 
 
 PkkersgiU, 1 B. & B. 282. 906 ; 6 M. & Gr. 242. Woollen v. Wright, 
 
 (c) Wilson V. Barker, 4 B. & Atl. 616 ; ante, p. 671. 
 
 1 Jf. & M. 409. Nicotl V, Gknnie, 1 M. (e) Roe t. Birkenhead, itc, Sail. Co., 7 
 
 &S.'592. Exeh. »6. 
 
936 PARTIES TO ACTIONS. [CHAP. XX. 
 
 aiding, or assisting in the commission of a trespass, are principals 
 in the transaction, and persons assenting to a trespass after it has 
 been done may also' become trespassers. Both the master who 
 commands the doing, and the servant who does an act of trespass, 
 may be made responsible as principals, and sued jointly for 
 damages (/). A servant keeping the key of a room, knowing that 
 a man is imprisoned therein, is a trespasser {g). Where an arrest 
 has been made under process, which is afterwards set aside for 
 irregularity, both the attorney -who sued out the process and the 
 client who set the attorney in motion may be sued for the assault 
 and false imprisonment {ante, p. 596). The servant is, as we have 
 seen, equally liable with the master in respect of his own personal 
 participation in a wrongful act, and cannot discharge himself from 
 liability on the ground that he acted under unavoidable ignorance 
 and in obedience to his master's orders, nor can he justify under 
 any authority from his master when his master had no authority in 
 the matter (h). A servant may, as we have seen, be liable for a 
 conversion to which he is a party, though he is acting in obedience 
 to the commands of his master, and under authority from him {i). 
 
 Husband and wife. — The husband is by law answerable for all 
 actions for which his wife stood attached at the time of the 
 marriage, and also for all her torts and trespasses during cover- 
 ture ; but the action must be against them both jointly, for if she 
 alone were sued, it might be a means, of making the husband liable 
 without giving him an opportunity of defending himself (Ji). The 
 husband takes his wife with all her obligations and liabilities. 
 If, therefore, at the time of her marriage she is tenant of certain 
 premises, and has received notice to quit, the husband after the 
 marriage incurs the obligation of giving up possession of the 
 premises, and may render himself liable to an action for double! 
 value for holding over; for if the wife incurs the penalty the 
 husband will have to pay it, and he cannot get rid of the 
 obligation by pleading ignorance, for it is his duty to make inquiry, 
 nor by showing that his wife deceived him, or concealed the notice 
 to quit (I). 
 
 The husband must be sued jointly with the wife for an assault 
 or libel committed by the wife, or for the destruction or conversion 
 of property by the wife, or for any act of trespass committed by 
 her during the coverture (m). He continues answerable in 
 
 (/) Bates V. PUling, 6 B. & C. 38. pp. 325, 326 
 
 {g)' Bro. Abr. Tbespass, pi. 133, 256, (A) Bac. Abr. Babon and Feme, L. 
 
 n^ ^. i TT, „ , „ (0 ^ahe V. Smith, 1 B. & P., ST. K. 
 
 (/*) Stephens t. Mwall, 4 M. & S. 261 179 . 
 
 Bennett y^.Bayes, 5 H. & N. 391; 29 Law (m) CcaUraU v. Kem,<m., 3 Q. B. 315. 
 
 \-\v{? e .r , , Keywmh x. BUI, 3 B. & Aid. 686. 
 
 MPerkini v. Smith, 1 Wils. 328. Draper y. FvZkes.Y ely. 165. 
 JJavies V. Vernon, 6 Q. B. 443. See ante, 
 
SECT. 2.] HUSBAND AND WIFE. 937 
 
 damages to all persons who have been injured by the wrongful 
 act of the wife so long as the relation of husband and wife 
 continues, though they are living apart [n), unless they are 
 separated under a decree of judicial separation, 20 & 21 Vict. c. 85, 
 s. 26, or the wife has obtained a protecting order under s. 21, in 
 which case the husband is not liable for the wife's tortious acts. 
 If the marriage be dissolved, the husband cannot be sued jointly 
 with the wife for a tort committed during the coverture (o). 
 
 Where a married woman signed and delivered a distress-warrant 
 to a bailiff, and directed him to distrain the goods of a tenant, 
 under the impression that she had a right to distrain when she had 
 no such right, and the bailiff having been sued and compelled to 
 pay damages for the illegal distress, brought ah action of tort for 
 deceit against the wife and her husband, it was held that the 
 action was not maintainable, as it was not founded upon an alleged 
 assertion of the wife that she had a right to distrain, and there 
 could be no retainer of the plaintiff to distrain given by the wife, 
 nor any contract by her to indemnify him (p). 
 
 The husband of an executrix or administratrix is liable in 
 respect of all assets received and wasted, and devastavits committed 
 by himself or by his wife during the coverture, and his estate 
 remains liable after his death (^). 
 
 After the death of the wife, or dissolution of the marriage (see 
 supra), the husband is discharged from all responsibility for her 
 tortious acts, unless he himself participated therein, or authorised 
 or instigated them, in which case he wiU. be responsible, like any 
 other master who has committed a tortious act through the medium 
 of his servant. After the death of the. husband the wife may be 
 sued alone for all tortious acts in which she has participated, 
 whether she was a, sole actor in them or whether they were 
 committed by her at the instigation or under the influence and 
 direction of her husband (r). And the same rule of law prevails 
 where the husband has abjured the realm, or has been transported, 
 and is thereby civiliter mortuus (s). 
 
 In every case of a judicial separation, or divorce a vinculo 
 matrimonii, or a protecting order, the wife so separated, or divorced, 
 is considered a feme sole, for the purpose of being sued for wrongs 
 and injuries done by her, and her husband is not liable for any 
 wrongful act or omission by her {t). 
 
 (re) Head v. Briscoe, 5 C. P. 484. (r) Vine v. Saunders, i B. N. C. 102. 
 
 (o) Cafpel T. PoweU, 34 Law J., 0. P. As to damages in the latter case, qucere, 
 
 lg8. see per Bosanquet, J., S. 0. 
 
 (p) EawUngs v. Bell, 1 C. B. 959. (s) Bac. Abr. Babon and Feme, M. 
 
 See Liverpool Adelphi Loan, d-c. x. Fair- (<) 20 & 21 Vict. c. 85. ss. 21, 26, 
 
 hvrst, Wright v. Leonwrd, ante, p. 34. Capel v. PoweU, supra, 
 
 (g) Smith T. Smith, 21 Bear. 385. 
 
938 PARTIES TO ACTIONS. [CHAP. XX. 
 
 Infants. — ^An infant in the actual occupation of land is 
 responsible for nuisances and injuries to his neighbour, arising 
 from the negligent use and management of the property. A man 
 who has made a contract with an infant cannot convert anything 
 that arises out of that contract into a tort, and seek to enforce 
 the contract through the medium of an action of tort. Thereforej 
 where a lad hired a mare, and injured it by immoderate riding, it 
 was held that a plea of infancy was an answer to the action, the 
 action being founded on contract (it). But where a horse is hired 
 for one purpose and is used for another, or is let out to be used by 
 one person, and he allows it to be used by another, there is a tort 
 independent of contract. And, therefore, where an infant hired a 
 horse on the terms that it was to be ridden on the road and not over 
 fences in the fields, and the infant having got possession of the 
 horse lent it to a friend, who took it off the high-road, and in 
 endeavouring to jump the animal over a hedge transfixed it on a 
 stake and killed it, it was held that the infant was responsible in 
 damages for the value of the horse (a;). 
 
 An infant is not liable for the conversion of goods if the cause 
 of action is grounded on matter of contract with the infant, and 
 constitutes a breach of contract as well as a tort (y). Neither is 
 he liable, as previously mentioned, to an action for a fraudulent 
 representation or a breach of warranty (»), where a contract made 
 by means of the misrepresentation or a sale effected through the 
 false warranty is substantially the cause of action; nor is he 
 chargeable on the custom of the realm as a common innkeeper. 
 But if an infant gets goods into his hands by fraud and false 
 pretences, or under colour of a pretended contract, and then refuses 
 to deliver up the goods on the demand of the party who has been 
 defrauded of the possession of them, he cannot, if the goods were 
 in his hands or under his control at the time they were demanded 
 back, set up his minority as a defence to an action grounded on 
 such demand and refusal (a). 
 
 Where an action for money had and received was brought 
 against an infant to recover money which the infant had embezzled, 
 Lord Kenyon said that infancy was no defence to the action ; that 
 infants were liable to actions ex delicto, though not ex contractu ; 
 and though the action was in form an action of the latter descrip- 
 tion, yet it was ex delicto in point of substance ; that if an action of 
 trover had been brought for any part of the property embezzled, or 
 an action grounded on the fraud, infancy would have been no 
 
 (u) Jennings v. RundaU, 8 T. E. 335. (z) Ante, p. 857. Howlett v. Ha&meM, 
 
 (x) Ijurnci/rdv.Haggis,S2JjavJ.,C.P. i Compb. 118. Green v. Gremhwiik, 2 
 
 189. Marsh. 485. 
 
 (jl) Manly v. Scott, 1 Sid. 129. (a) Mills v. Gra/tam, 1 B. & P., N.K. U5. 
 
SECT. 2.] INFANTS — EXE0UTOES, ETC. 939 
 
 defence; and that as the object of the action was precisely the 
 same, his opinion was that the same rule of law should apply (&). 
 
 Executors and administrators. — An action does not in general 
 lie at common law against executors to recover damages for waste 
 committed by their testator, it being a tort which dies with the 
 person (c). They ai'e not responsible in damages for injuries done 
 by their testator in cutting down another man's trees, or for tres- 
 passes committed by him in entering in his lifetime upon another 
 man's land, and prostrating fences, or digging therein, where the 
 wrong-doer acquires no gain to himself from the commission of the 
 wrong; but wherever by the wrong done property is acquired 
 which benefits the testator, there an action for the value of the 
 property shall survive against the executor. So far as the tort 
 itseK goes, an executor shall not be liable ; but so far as the act of 
 the offender is beneficial to his personal estate, his assets ought to 
 be answerable, and his executor therefore shall be charged. Where, 
 therefore, trees, coals, or -minerals wrongfully severed by one man 
 from the soil and freehold of anothet, have been sold by the wrong- 
 doer, and the latter dies, his estate, in the hands of his executor, 
 is answerable for the price, and an action for money had and re- 
 ceived may be maintained against the executor for the recovery 
 thereof (d). 
 
 Personal representatives are not responsible for a conversion or 
 unlawful detention by their testator or intestate in his lifetime of 
 another man's chattels, the private wrong being, as we have seen, 
 buried with the offender. But .where there has been a conversion 
 of property by the deceased, which has benefited his personal 
 estate, the personal representative may, in general, be sued in form 
 ex contractu, founded on the tort. " Thus an action on the custom 
 of the realm against a common carrier for not receiving and 
 carrying goods, being for a tort, will not lie- against an executor ; 
 but an action ex contractu for the same cause will lie. If a man 
 take a horse from another, and bring him back again, an action for 
 the trespass will not lie against Ids executor, but an action for the 
 use and hire of the horse by the deceased may be maintained " (e). 
 Where the plaintiff declared that he was possessed of a cow which 
 he delivered to the testator to keep for him, and that the testator 
 sold the cow, and converted and disposed of the money to his own 
 use, it was held that the executor was not responsible ia trover for 
 the conversion of the beast by the testator, but that he might be 
 made liable for the value of it in an action for money had and 
 received (/). 
 
 (6) Frlstow V. Eastman, 1 Esp. 172. (e) Hamhly v. Trott, Gowp. 375. 
 
 (c) 2 Inst. 301. (/) Bailey v. Birttes, Sir T. Baym. 71. 
 
 (d) Powell V. Rees, 7 Ad. & E. 428. Perkinson v. Gilford, Cro. Car. 539. 
 
940 PARTIES TO ACTIONS. [CHAP. XX. 
 
 No action lies against an executor of a deceased sheriff, gaoler, 
 or officer, for an escape suffered or permitted by his testator, or by 
 reason of his testator's having neglected to attend a'nd give 
 evidence in a cause in obedience to a subpoena served upon him in 
 his Lifetime {g), nor are executors liable in equity for the negligence 
 of their testator Qi). 
 
 Wrongs committed hy a deceased person within six months lefore 
 death. — By 3 & 4 Wm. 4, c. 42, s. 2, reciting that there was no 
 remedy provided by law for certain wrongs done by a person 
 deceased in his lifetime to another in respect of his property, real 
 or personal, it is enacted, that an action of trespass or .case may be 
 maintained, against the executors or administrators of any person 
 deceased, for any wrong committed by him in his lifetime to another 
 in respect of his property, real or personal, so as such injury shall 
 have been committed within six calendar months before such 
 person's 'death; and so as such action shall be brought within six 
 calendar months after such executors or administrators shall have 
 taken upon themselves the administration of the estate and 
 effects of such person ; and the damage to be recovered in such 
 actions shall be payable in Like order of administration as the 
 simple contract debts of such person. Where a watch was shown 
 to have been in the possession of a testatrix more than six months 
 before her decease, and she was asked within the six months to 
 give it up, and wrongfully refused, this was held to be evidence of 
 a conversion within six months of her death (i). 
 
 Actions against the executor of a. prebendary, vicar, or incumbent 
 of a benefice for dilapidations are maintainable where the prebendal- 
 house, chancel of the church (where that is repairable by the 
 incumbent), or the buildings, hedges, and fences belonging to the 
 prebendary, vicarage, or benefice are left in a state of decay, or 
 where there' has been a felling of timber otherwise than for repairs 
 or fuel (/<;) ; but the incumbent of a vicarage cannot maintain an 
 action against the executor of his predecessor for not cultivatinof 
 the glebe-land in a husband-like manner (/). And in the case of 
 dilapidations to buildings, no claim for dilapidations can now be 
 made, except under the provisions of the Ecclesiastical Dilapida- 
 tions Act, 1871 (34 & 35 Vict. c. 43), except in the case of wiKul 
 waste. See ante, pp. 239, 240. 
 
 Iddbilities of executors and administrators for their own wrongful 
 acts. — If a testator or intestate at the time of his death was in the 
 possession of the goods and chattels of third persons, and had no 
 
 (g') WiUiams on Executors, 6th ed., (Ic) jRadcliff v. D'Oyly, 2 T. E. 630. 
 
 pt. 4, bk. 2. Wise y. Metcalfe, 10 B. & C. 312 ; 1 
 
 (h) Overend & Go, v. Gurney, L. E., i Saund. 216 a, note a. 
 
 Ch. Ap^. 701. (J) Bird v. Rdph, 4 B. & Ad. 830. 
 
 (i) Biehmond v. Nicholson, 8 So. 137. 
 
SECT. 2.] TRUSTEES IN BANKRUPTCY — BANKRUPTS. 941 
 
 lien upon them, and these goods come into the possession of his 
 personal representatives after his decease, or under their dominion 
 and control, and they refuse to give them up to the owners on 
 demand made hy the latter, they are responsible in damages for a 
 conversion or unlawful detention of the property. But those only 
 who have been guilty of the tort should be made defendants. Thus, 
 if there are three executors, and one only of the three has got 
 possession of, or meddled with, the goods of the plaintiff, that one 
 alone should be sued. 
 
 Formerly, if an executor committed a devastavit and died, the 
 wrong died with him, so that his executor was not liable for it; 
 but by 30 Car. 2, c. 7, and 4 & 5 W. & M. c. 34, s. 12, the executors 
 or administrators of any executor or administrator, who shall waste 
 or convert to his own use the estate of his testator or intestate, 
 shall be liable in the same manner as their testator or intestate 
 would have been if they had been living (m). A feme covert 
 executrix who survives her husband is liable for any devastavit 
 committed by him during their joint lives (n). 
 
 An executor is as liable for what he omits to do, if it is his 
 duty to do it, as for a misfeazahce (o). 
 
 Trustees in bankruptcy. — Trustees of the estate and effects of 
 bankrupts may defend any action or suit which the bankrupt might 
 have defended (ante, p. 926). They are not liable as assignees of a 
 lease unless they have done some act which unequivocally indicates 
 that they have elected to take the lease (p) ; nor even then, unless 
 they have refused for twenty-eight days after notice, or such 
 further time as the court may allow, to disclaim the lease. See, 
 ante, p. 344. 
 
 Of the continued liability of a bankrupt to actions ex delicto, and 
 to arrest. — The Bankrupt Act does not exempt a bankrupt from 
 actions for damages in respect of wrongs done by him prior to, or 
 during the bankruptcy, for the damages do not constitute a debt 
 until they have been assessed by a jury, and judgment for them has 
 been obtained {q). If the action has been tried, and damages 
 recovered, before the granting the order of discharge, so that the 
 amount has become a judgment debt provable against the estate, 
 then the order of discharge will be a bar to further proceedings 
 thereon (r). The 31st section of the 32 & 33 Vict. c. 71, enacts that 
 " demands in the nature of unliquidated damages, otherwise than 
 
 (m) See Oowa/rd v. Gregory, L. E., 2 C. (p) See Goodwin v. Nolle, 8 Ell. & Bl. 
 
 p. 153. 587 ; 27 Law J., Q. B. 204. 
 
 (n) Soady v. Twmhull, L. E., 1 Oh. App. (?) LUyd v. PetU, 3 B. & Aid. 408. 
 
 494. Parker v. Crote, 5 Bing. 63. Parher v. 
 
 (o) Graybum v. Ola/rTcaon, L. E.., 3 Ch. Norton, 6 T. E. 699. 
 
 App. 605. (*■) Longford v. Ellis, 1 H. Bl. 29, n. 
 
 Qreemway t. Fisher, 7 B. & C. 436. 
 
» 
 
 942 PARTIES TO ACTIONS. [CHAP. XX. 
 
 by reason of a contract or promise, sliaH not be provable in bank- 
 ruptcy." 
 
 Arrest and imprisonment for debt have been abolished, with a 
 few exceptions, by 32 & 33 Vict. c. 62 (s). The second part of that 
 Act, however, sect. 11 to 23, provides for the punishment of certain 
 misdemeanours committed by bankrupts, and the 9th section pro- 
 vides that nothing in the first part of the Act, sect. 1 to 10, shall 
 affect any right or power under the 32 & 33 Vict. c. 71 (the BanTi- 
 ruptcy Act, 1869), to arrest or imprison any person. The last- 
 mentioned Act, sect. 86, provides that a debtor may be arrested, and 
 his goods, papers, &c., seized, if, after a petition of bankruptcy has 
 been presented, there is reason to believe he is going abroad, or 
 quitting his residence, to avoid service of the petition, examination 
 in bankruptcy, &c., or if he is about to remove or conceal his pro- 
 perty, &c., or if he removes any property without leave of the 
 trustee in bankruptcy, or fails to attend any examination (t) ; and 
 the 33 & 34 Vict. c. 76, extends the power of arrest to cases where 
 a debtor summons has issued, but before any petition for adjudication 
 has been presented.. 
 
 Of the number of the defendants in actions ex delicto — Parties 
 jointly and severally liable. — ^Whoever wilfully assists in the doing 
 of an unlawful act becomes answerable for aR the consequences of 
 such act; and when several persons have been jointly concerned in 
 the commission of a wrongful act, they may in general, as We have 
 seen, all be charged jointly as principals, or the plaintiff may 
 sue any of the parties upon whom individually a separate trespass 
 attaches (u). 
 
 Torts are in their nature several, and in all actions of tort, 
 therefore, one defendant may be acquitted and others found guilty. 
 
 In the case of actions for the wrongful conversion of property, 
 several parties may be joined as defendants, and one or more of 
 them be found guilty and the rest acquitted ; and unless all are 
 implicated in a joint conversion, all cannot be found guilty (x). 
 But where the action, though for a tort, is founded on a contract, 
 and several defendants are sued jointly, it has been doubted whether 
 one can be acquitted and another found guilty (y). Where an 
 action was brought against two defendants for deceit, alleged to- 
 have been committed in a joint sale by them of some sheep, and 
 the declaration set forth that the defendants sold to the plaintiff 
 some sheep, their joint property, and warranted them to be sound, 
 and they proved to be unsound, and there was ho evidence to 
 
 (s) See R v. Master, L. R., 4 Q. B. huU, 5 T. E. 651. Sutton v. Clarke, 6 
 
 285. Taunt. 29. 
 
 (() And see s. 77. (x) McoU t. Glermie, 1 M. & S. 688. 
 
 (u) Ld. Kenyon, C.J., Mitchell t. Tar- {y) Pozzi t. Shipton, 8 Ad. & E. 975. 
 
SECT. 3.] NON-JOINDEK OR MIS-JOINDER — AMENDMENT. 943 
 
 affect one of the defendants, it was held that the action was founded 
 on the joint contract of both, and that one defendant could not be 
 acquitted and the other found guilty (2). See post, s. 3. 
 
 Where an action has been brought against several joint- 
 trespassers, the evidence must be confined to the joint offence in 
 which all are implicated. The plaintiff cannot recover for what 
 was done by one or more before or after the joint act (a) ; and when 
 an action is brought for one joint-trespass, and the plaintiff elects 
 to go for a trespass committed at any particular time, he must 
 confine himself to that period ; and if all the defendants were not 
 concerned in the trespass then committed, the plaintiff cannot have 
 recourse to a trespass committed at a subsequent time, when some of 
 the defendants were concerned who were not implicated in the first 
 transaction (6), for some of the defendants might be thereby sub- 
 jected to damages for a trespass wherein they had no part or 
 concern (c) ; but if he fails in proving a joint-trespass by all on the 
 day he first selects, he is at liberty to abandon that trespass and to 
 prove a joint-trespass at another period (d). 
 
 When the plaintiff's evidence discloses no joint-trespass com- 
 mitted by all the defendants, but only separate trespasses by each, 
 the plaintiff may be put to his election against which of the several 
 defendants he will proceed (e). 
 
 One of several partners cannot, as we have seen, drag the firm 
 or his co-partners into a trespass by signing a warrant or authority 
 for the doing a wrongful act in the name of the firm of which he is 
 a member ; for one partner has no authority to bind the partnership 
 to the commission of a wrongful act without the previous consent 
 or subsequent concurrence of all the partners (/). If the act is 
 done by the one partner for the benefit of the firm, and the firm 
 afterwards take advantage of the act, and adopt the transaction, 
 they may then, as we have seen, become responsible for it. 
 
 SECTION III. 
 
 OF NON-JOINDER AND MIS-JOINDER OF PARTIES — AMENDMENT BEFORE 
 AND AT THE TRIAL. 
 
 By the Common Law Procedure Act, 1860, 23 & 24 Vict. 
 c. 126, s. 19, it is provided, that the joinder of too many plaintiffs 
 
 (2) WeaU V. King, 12 East, 452. {d) Roper r. Harper, 5 So. 250 : 4 B. 
 
 (a) Aaron v. Alexander, 3 Campb. 35. N. C. 20. 
 
 (6) Sedley v. Sutherland, S Esp. 204. (e) Howard v. Newton, 2 M. & Eob. 
 
 (c) Ihid. Taity. Harftt, 6 C. & P. 510. 
 
 73. (/) Petrk V. Lamont, Car. & M. 96. 
 
944 PARTIES TO ACTIONS. [CHAP. XX. 
 
 shall not be fatal, but every action may be bronght in the name of 
 all the persons in whom the legal right may be supposed to exist, 
 and judgment may be given in favour of such one or more of the 
 plaintiffs as shall be adjudged by the court to be entitled to 
 recover (^) ; but the defendant, though .unsuccessful, is entitled to 
 the costs occasioned by joining any jjerson in whose favour judg- 
 ment is not given, unless otherwise ordered by the court or judge. 
 This section applies only to cases where there was fair ground to 
 believe that there was a joint cause of action vested in all who 
 were joined as plaintiffs. It 'does not enable two or more persons 
 to join in a speculative sort of action, saying, one or other of us is 
 entitled to recover, but not both Qi). Nor does it enable the court 
 to give judgment for one plaintiff, who might have been prevented 
 from maintaining the action, if he had been the sole plaintiff at 
 first {£). 
 
 Amendment of non-joinder and mis-joinder lief ore trial. — By the 
 Common Law Procedure Act, 1852, 15 & 16 Vict. c. 76, s. 34, it is 
 enacted, that "it shall be lawful for the court or a judge, at any 
 time before the trial of any cause, to order that any person not 
 joined as plaintiff shall be so joined, or that any person origihally 
 joined as plaintiff shall be struck out, if it shall appear that injustice 
 will not be done by such amendment, and that the person to be 
 added consents, either in person or by writing under his hand, to' 
 be so joined, or that the person to be struck out was originally 
 introduced without his consent, or that such person consents in 
 manner aforesaid to be struck out ; and such amendment shall be 
 made upon such terms as to the amendment of the pleadings (if 
 any), postponement of the trial, and otherwise, as the court or judge 
 by whom such amendment is made shall think proper ; and when 
 any such amendment shall have been made, the liability of any 
 person who shall have been added as co-plaintiff shall, subject to 
 any terms imposed as aforesaid, be the same as if such person had 
 been origiually joined in such cause." 
 
 Amendment at the trial. — It is further enacted, by s. 35, that in 
 case it shall appear at the trial of any action that there has been a 
 mis-joinder of plaintiffs, or that some person, not joined as plaintiff, 
 ought to have been so joined, and the defendant shall not, at or 
 before the time of pleading, have given notice in writing that he 
 objects to such non-joinder, specifying therein the name or names 
 of such person, such mis-joinder or non-joinder maybe amended as 
 a variance at the trial by any court of record holding plea in civil 
 actions, and by any judge sitting at nisi prius, or other presiding 
 
 {g} Brenmer v. Hull, L. E., 1 C. P. 332. 
 748. (j) Stubs V. Stubs, 31 Law J., Exoh. 
 
 (A) Bellingham t. Clark, 1 B. & S. 511. 
 
SECT. 3.] MIS-JOINDER — AMENDMENT. 945 
 
 officer, ill like niauuei" as in the case of amendments of variances 
 imder tlie 3 & -4 Wni. 4, c. 42, if it shall appear to such court, or 
 judge, or other presiding ofiicer, that such mis-joinder or non-joinder 
 was not for the purpose of obtaining an undue advantage, and that 
 the person to be added consents, either in person or by writing 
 under his hand, to be so joined, or that the person to be struck out 
 was originally introduced without his consent, or that such person 
 consents in manner aforesaid to be so struck out ; and such amend- 
 ment shall be made upon such terms as the court, or judge, or other 
 presiding officer by whom such amendment is made shall think 
 proper ; and when any such amendment shall have been made, the 
 liability of any person who shall have been added as co-plaintiff 
 shall, subject to any terms imposed as aforesaid, be the same as if 
 such person had been originally joined in sucla action. And by 
 s. 222, further powers of amendment (post, ch. 21, s. 2) are given, 
 enabling fresh plaintiffs to be added in certain cases, in order to 
 bring the real question in dispute before the court (Jc), biit not a 
 fresh defendant (J). The court will not add a party to the record 
 as plaintiff if he is trustee for a person who objects to his being 
 added (m). Nor can the court under s. 222, substitute the personal 
 representative as plaintiff, if the plaintiff was dead at the time the 
 writ was issued (ii). 
 
 Amendment after notice or plea in ahatement of non-joinder tf 
 parties. — It is also enacted, by s. 36, that in case notice of non- 
 joinder be given, or any plea in abatement of non-joinder of a 
 person as co-plaintiff, in cases where such plea in abatement may 
 he pleaded, be pleaded by the defendant, the plaintiff shall be at 
 liberty, without any order, to amend the writ and other proceedings 
 before plea, by adding the name of the person named in such notice 
 or plea in abatement, and proceed in the action without any further 
 appearance, on payment of the costs occasioned by such amend- 
 ment ; and, in such case, the defendant shall be at liberty to plead 
 de novo. 
 
 Mis-Joinder of defendants.— The, 15 & 16 Vict. c. 76, s. 37, 
 provides for the amendment of a mis-joinder of defendants at the 
 trial by the judge "or other presiding officer." A county court 
 judge therefore may, in an action sent down for trial under 19 & 20 
 Vict. c. 108, s. 26, amend a mis-joinder of defendants under this 
 section (o). The acquittal of one defendant in an action founded 
 on neglect of duty and not upon breach of contract, does not affect 
 
 (;!;) Bhke V. Done, 31 Law J., Excli. (ffl) Stargk v. Smitli, 5 L. T. E., TS. S. 
 
 102. ^®^' 
 
 Q) GwrrojfA t. Owbdei, 34 Law J., C. P. («) Clay v. O^ord, L, R, 2 Exch. 54. 
 
 131 ■ ih. 270, (") Smniion v. Walker, L. K, 7 Exchi 
 
 P p p 
 
0-46 1"ARTIES TO ACTIOKS. [CHAP. XX. 
 
 the right of the plaintiff to have his judgment against the de- 
 fendant against whom the verdict has been obtained Q?). 
 
 The effect of marriage, death, and hanhr^i^ptcy tipon, the proceedings 
 in an action is provided for and regulated by the Common Law 
 Procedure Act, 1852, 15 & 16 Vict. c. 76, ss. 135-142. The right 
 of a personal representative of a deceased plaintiff to continue the 
 action by entering a suggestion of the death upon the record (s. 137), 
 applies only to such causes of action as would have survived to the 
 personal representative, and not where the cause of action died 
 with the plaintiff at common law, and a perfectly new right has by 
 statute been given to the personal representative, as under Lord 
 Campbell's Act, 9 & 10 Vict. c. 93 (q). 
 
 {2}) Goiett r. Radnidge, 8 East, 62. (g) Flinn v; Perkins, 32 Law J., Q. 13. 
 
 10. 
 
947 
 
 CHAPTER XXI. 
 
 or ACTIONS EX DELICTO, PLEADINGS, DEFENCES, AND 
 EVIDENCE. 
 
 Section I. — PUadiru/s and defences in 
 actions ex delicto. — Of actions in the 
 county court — Jurisdiction of the 
 county court — Waiver of objection to 
 jurisdiotioa — Actions in the Superior 
 courts — Joinder of diiferent causes of 
 action — Requisites of the]declaration — 
 Statement of special damage — SeTeral 
 counts in declarations — Pleas to the 
 jurisdiction — What matters must be 
 specially pleaded — Pleading several 
 matters of defence — Traverses — Re- 
 quisites of special pleas — Eictitious 
 and needless averments — Defences 
 arising after the commencement of 
 the action — Payment of money into 
 court — Pleas of infancy, accord and 
 satisfaclion, pendency of another 
 action for the same cause, judgment 
 recovered, bankruptcy, statutes of 
 limitations — Equitable defences — Join- 
 
 der of issue — New assignments — De- 
 murrers. 
 Section II. — Procecdinr/s and evidence at 
 the trial. — Bight to begin — Proof by 
 plaintiff — Effect of payment of money 
 into court — Primary and secondary 
 evidence — When a copy may be re- 
 ceived as primary evidence — Notice to 
 produce to let in secondary evidence — 
 Where notice to produce is unneces- 
 sary — Evidence of admissions of liabi- 
 lity — Proof of facts resting on hearsay 
 and reputation — Declarations of de- 
 ceased persons — Entries in boots — 
 Statements and declarations forming 
 part of the res gesta — When a party is 
 estopped from contradicting his own 
 representations — Evidence of manorial 
 customs, of title, seisin, &c.— Amend- 
 ment of variances — Admissions — Ill- 
 ness of witness. 
 
 SECTION I. 
 
 OF PLEADINGS, DEFENCES, AND EVIDENCE IN ACTIONS EX DELICTO. 
 
 Of actions in the county court (a). — The 30 & 31 Vict. c. 142, 
 enacts (s. 1), that a plaint may be entered in the county court 
 within the district of A\'hich the defendant or one of the defendants 
 dwells or carries on his business at the time of bringing the action ' 
 or suit, or, by leave of the judge or registrar, within which he 
 dwelt or carried on business within six months of the time of com- 
 mencing the action, or, by the like leave, within which the cause of 
 action wholly or in part arose (&). It has been held (c) that a rail- 
 way company neither "carries on its business," nor "dwells," within, 
 the district of every county court where it may happen to have a 
 station, but that it must be considered to " carry on its business," 
 and to " dwell," at its head quarters, i. c, at the place where its 
 
 (b) See Pollock's County Court Prac- 
 tice, 6th ed. (1868). 
 (6) As to coVinty court actions in Lon- 
 
 don, see 8. 3. 
 
 (c) Under the repealed sections of the 
 9 & 10 Vict, c. 95. 
 
 P I' t 8 
 
'948 ACTIONS IN COtlNTY COURT. [CHAP. XXL 
 
 principal offioe is situate, where the directors meet, and where all 
 the affairs of the company are managed and directed (d). But in 
 the case of a manufacturing company, they carry on business where 
 the goods are mamifactured and sold, although the registered ofiice 
 of the company, where the board of directors meet, may be else- 
 where (e). If the company merely receives tolls elsewhere than at 
 Its registered ofiBce, as in the case of a bridge company, its regis- 
 tered ofi&ce would probably be its place of business within the above 
 section (/). A commercial company established in the metropolis, 
 and carrying on business there, does not also carry on business in 
 a country town merely by employing an agent there and transact- 
 ing business there in the name of such agent and not in their own 
 names (ff). A man who has no permanent residence " dwells" 
 wherever he is temporarily resident (h). 
 
 A party injured by the wrongful act of the company may also 
 sue them in the district where the cause of action wholly or in 
 part arose, by making application to the registrar, or by obtaining 
 the leave of the judge of the county court of that district; 30 & 31 
 Vict. c. Ii2, s. 1. Under the repealed 16th section of the 9 & 10 
 Vict, c, 95, "the action could only be brought in the district where 
 the cause of action, i. e., the whole cause of action, arose, that is to 
 say, everything which it was necessary for the plaintiff to prove as 
 a condition precedent to his right to recover (i). 
 
 The general jurisdiction of the counts/ court extends to all actions 
 ex delicto for the recovery of demands not exceeding 501. ; 13 & 14 
 Vict. c. 61, s. 1, except actions for malicious prosecution, libel, 
 slander,'or seduction; 9 & 10 Vict. c. 95, s. 58. But by the 80 & 
 31 Vict. c. 142, s. 10, any action " for malicious prosecution, illegal 
 arrest, illegal distress, assault, false imprisonment, libel, slander, 
 seduction, or other action of tort," brought in a superior court, may 
 be remitted for trial to a county court (/), unless the plaintiff gives 
 security for costs to the satisfaction. of a master, or satisfies the 
 judge that he has a cause of action fit to be prosecuted in the supe- 
 rior court (Jc). The substance, and not the form of the cause of 
 action, must be regarded in order to determine whether it is one of 
 
 {d) Shiehv. Gt. North. SaU. Co., 30 {h) Alexander v. Jones, L. R., 1 Exeh. 
 
 Law J., Q. B. 331. Adams v. Gt. West. 133 
 
 Rail. Co., 30 Law J Exch. 124. Brown {i) Fuller v. Machay, 22 Law J., Q. B. 
 
 V. Land, and North-West. Bail. Co., 32 415. Aris y. Orchwrd, 6 H. & N. 160 ; 
 
 Jjaw J^ y. B. 318. 80 Law J., Exch. 21. See Bonsev r. 
 
 (e) Keynsham Blm Lias Co. t. Baher, Wordsworth, 18 C. B. 325. 
 
 V^r//: , -'ii,- ^ ^ U)^6^'riwmeweUy.Wigner,-h.'S..,6 
 
 (f)-Aberystwith Pier Co. y. Cooper, 35 Exch, 87. 
 
 ^u,\ rJ^Lff'S r' c ,T „ (*) ^^^ Owens V. Woosmwn, Owens v. 
 
SECT. l.J OOryfilGHT — FEIENDLY SOCIETIES, ETC. 949 
 
 the excepted actions. If, therefore, a plaint in the county court ia 
 in form founded on negligence, but is in substance a plaint for a 
 malicious prosecution, the county court has no jurisdiction to hear 
 and determine it (l) ; unless it be remitted for trial under the above 
 provision. The signing of the charge-sheet at a police station is 
 not necessarily the commencement of a malicious prosecution, 
 at all events if the plaintiff is discharged when taken before the 
 niagistrates, and there is nothing to prevent him from suing in 
 the county court for false imprisonment only, although he may 
 have appeared before the magistrates to support the charge (m). 
 
 Copyright of design. — The proprietor of copyright in any design 
 may institute proceedings in the county court of the district in 
 which the piracy is alleged to have been committed, for the recovery 
 of the damages he has sustained by reason of such piracy ; but in 
 any such proceedings the plaintiff must deliver with his plaint a 
 statement of particulars as to the date and title, or other description 
 of the registration of the copyright, and of the alleged piracy ; and 
 the defendant must give notice of any objections to the copyright, 
 or to the title of the proprietor, in manner therein provided (n). 
 
 Friendly Socieiies. — Applications for the settlement of disputes 
 arising in friendly societies, the rules of which do not prescribe 
 any other mode of settling such disputes, may be made to the 
 county court of the district within which the usual (o) or principal 
 place of business of the society is situate, and the court is to give 
 such relief and make such orders as might be made by the Court 
 of Chancery (p). And it has been held that the county court has 
 jurisdiction to reinstate a member of an enrolled friendly society 
 improperly expelled, although the rules of the society prescribe a 
 mode of determining disputes under them (q). 
 
 Ouster of jurisdiction of county court in cases where the title to 
 land, &c., is in question. — The 58th section of the 9 & 10 Vict. c. 95, 
 further excepted from the cognisance of the county court actions 
 " of ejectment, or in which the title to any corporeal or incorporeal 
 hereditaments, or to any toll, fair, market, or franchise shall be in 
 question" (r). But the 30 & 31 Vict. c. 142, ss. 11, 12, now pro- 
 vides, that actions of ejectment where neither the value of the land, 
 &c., nor the rent payalale for it, shall exceed 20^., may be brought in 
 the county court of the district in which the lands are situate. The 
 value of the land under the above section means the value of the 
 
 (V) Hunt V. North Staff., <fcc., Rail. Co., (o) See Shea v. United Assurance Soc, 
 
 2 H. & N. 451. Sogers v. Macnamara, h. E., 3 C. P. 21. 
 14 C. B. 27 ; post, ch. 22. {p) 18 & 19 Vict. o. 63, ss. 41, 42, 44. 
 
 (m) Austin v. Dowling, L. E., 5 C. P. ' (q) Wooldridge, Ex parte, 31 Law J., 
 
 534. Q. B. 122. See ShipUm Industrial Co- 
 
 (») 21 & 22 Vict. c. 70, s. 8. As to operative Soc. v. Prince, 33 ih. 323. 
 proceedings in appeal or prohibition, see {r) Lawford t Partridge, 1 H. & N, 
 
 s. 9. 621. 
 
930 ACTIOXS IX COUNTY COURT. [CHAP. XXI. 
 
 land to let by the owner, not the value of the plaintiff's interest in 
 the land; as where lie is himself a lessee under the ground landlord, 
 and -sub-lets (s). But the rent payable means the rent payable 
 between the litigant parties {t). If the title to be tried affects other 
 lands of greater value than 20/., the action may, by order of a judge, 
 be tried in the superior court (s. 12). 
 
 The exception of actions in whicli the title to any coi'-poreal or 
 incorporeal hereditament, toll, fair, market, or franchise comes in 
 question, it will be observed, still remains. The mere assertion, 
 however, of a bond fide claim of title by a party to the action is not 
 sufficient to oust the jurisdiction of the county court. It must be 
 shown that the title to land really " is in question" (u) ; and if it 
 really comes in question, it is immaterial whether it is brought 
 forward maid fide or honafide (v). If a plaintiff shapes his case so 
 as to show by his plaint, or the particulars of demand thereunto 
 annexed, that the title to land, &c., comes into question, he then 
 ousts the court of its jurisdiction ; but if 'the plaintiff proceeds for a 
 matter which is primd facie within the jurisdiction of the county 
 court, a mere allegation or notice by the defendant that the title is 
 in question, or a plea setting up title, &c., is not sufficient to oust 
 the jurisdiction of the • court (w;). Proof of the facts stated or 
 pleaded must in the first instance be given, that the judge may 
 inquire into them, and determine whether the title really is in 
 question. But he cannot by his own decision give himself jurisdic- 
 tion, and if he comes to a wrong judgment, and improperly assumes 
 jurisdiction, a j)rohibition will lie (x), and he and his officers will 
 be responsible for their proceedings. The judge must of necessity 
 determine the question of his jurisdiction for himself in the first 
 instance, because on that determination it depends whether he 
 hears the case on the merits (y). 
 
 It was held that title to a corporeal hereditament came into 
 question in the following cases : where the plaint was for breaking 
 and entering certain apartments of the plaintiff, removing the 
 furniture and expelling the plaintiff, and the plaintiffs case was 
 that he had let the defendant a portion of the cottage, retaining the 
 rest with the furniture i'or himself ; that the defendant broke and 
 entered this (the plaintiff's) part of the cottage, and removed the 
 furniture into' a neighbouring shed, affirming that he had taken the 
 whole cottage and would keep it (z); where the plaint was for a 
 
 («) Mston T. Sose, L. E., 4 Q. B. 4. (x) EUton t. Rose, supra, 
 
 (t) Brown t. Cocking, L. R., 3 Q. B. (y) Thompsons. Ingham, 14 Q.B. 718; 
 
 "'f, „ ^ ■ ■ 19 Law J., Q.B. 189. Brown v. Coding, 
 
 (u) Emery, In re, 2 0. B., N. S. 423 ; supra. 
 
 ^\^l/-\^- ^:^^^®- (^) <^''««' "■■ Ilolroyd, 8 Exch. 249 : 22 
 
 (v) Marsh v. Bewes, 17 Jur. 558. Law J., Exch. 95. 
 
 (to) Lilley v. Barney, 5 U. & L. 648, 
 
SECT. 1.] QUESTIONS OF TITLE. 951 
 
 year's rent of a house let by the plaintiff to the defendant, and the 
 defence was that the plaintiff's title expired subsequently to the 
 letting, and was then vested in another party, who claimed the rent, 
 and it appeared that it was a lond fide defence with some evidence 
 to support it, and not a mere illusory matter set up for the mere 
 purpose of ousting the jurisdiction of the court (a); where, on a 
 claim for rent, the defendant set up a bond fide claim of ownership 
 subject to a quit rent (h). 
 
 Where an action for false imprisonment was brought against the 
 defendant for giving the plaintiff into custody for trespassing on his 
 close and talcing sand therefrom, and a question was raised as to 
 the right to take sand from the close, it was held that this right was 
 not involved in the inquiry into the question of the false imprison- 
 ment, as it might have been if the action had been brought for a 
 trespass upon the land, or for a trespass in removing the plaintiff 
 from the land, and the defendant had justified under a plea of 
 molliter manus imposuit (c). 
 
 It is to be observed, also, that the 58th section of the 9 & 10 
 Vict. c. 95 does not extend to oust the jurisdiction of the county 
 court in cases where a new remedy has been expressly given in the 
 county court by a subsequent statute. Thus, where an Act {d) pro- 
 vided, that the amount paid for carrying into force an order of two 
 justices to abate a nuisance might be recovered in the county court 
 from the owner of the premises where the nuisance existed, and a 
 plaint was brought in the county court charging the defendant with 
 certain expenses as being the owner of a ditch, and the defence was, 
 that the defendant was not the owner of the ditch, it was held that 
 the title certainly did come in question on this issue, but that the 
 particular statute on which the action was founded gave a special 
 jurisdiction to the county court over the particular question, and 
 gave it express power to try the question of ownership, which 
 necessarily involved the question of title (e). 
 
 Recovery of possession of smcdl tenements in the county court. — 
 When the term and interest of any tenant of premises, the rent of 
 which does not exceed oQl. a-year, and upon which no fine 
 or premium has been paid, has expired or been determined by 
 notice to quit, and the tenant, or any person claiming under him, , 
 neglects or refuses to deliver up possession, the landlord may, by 
 plaint in the county court of the district in which the premises lie, 
 
 (a) Mountnoy T. CoUiev, 1 Ell. & Bl. pealed by 29 & 30 Vict. c. 90. The latter 
 
 630 ; 22 Law J., Q. B. 124. Act, howerer, s. 34, and the 18 & 19 Vict. 
 
 (6) Pearson V. Glazehrooh, L. E.,3 Exch. c. 121, s. 19, substantially make similar 
 
 27 provisions. 
 
 \c) Eversjkld v. Nevman, 4 0. B., N. S. (e) Re;), v. Harden, 2 Ell. & Bl. 191 ; 
 
 418. 22 Law J., Q. B. 299. 
 
 (d) 11 & 12 Vict, c. 123, which is re- 
 
952 - ACTIONS m COUNTY COtJET. [CHAP. XXI. 
 
 proceed for the recovery, of such premises, adding a claim for rent 
 or mesne profits, &c. (/). He may proceed also in such cases to 
 recover possession hy plaint in the county court where he has a . 
 right to re-enter for non-payment of rent {g). No question of title 
 arises in the case of a landlord proceeding to recover possession of 
 premises demised by him to a tenant, as both the tenant, and all 
 persons claiming under the tenant, are estopped from disputing the 
 landlord's title. If, therefore, the tenant voluntarily lets another 
 person into possession, the person so let in is in the same position 
 as the tenant himself, and is bound by the estoppel (A). But the 
 tenant, and those claiming under him, may show that the title 
 which the landlord had at the time of the deraise subsequently 
 expired, or was determined ; and if such a point comes in question 
 before the counfy court judge, there is then, as we have seen, a 
 question of title ousting the jurisdiction of the court (i). And to 
 give the county court jurisdiction, it must be established that 
 the relationship of landlord and tenant exists between the 
 parties (/). 
 
 Equitable jurisdiction. — The 58th section of the 9 & 10 Vict. 
 c. 95, further excepted from the jurisdiction of the county court any 
 action " in which the validity of any devise, bequest, or limitation 
 under any will or settlement may be disputed." But, by the 28 & 
 29 Vict. c. 99, s. 1, the county court may, in cases where the 
 subject-matter of the suit does not exceed 500^., exercise the juris- 
 diction of the Court of Chancery in administration suits, in suits 
 for the execution of trusts (k), of foreclosure or redemption, for 
 enforcing any charge or lien, for specific performance, or reforming 
 or setting aside agreements (/), in proceedings iinder the Trustee Eelief 
 Acts, in all proceedings relating to the maintenance or advancement 
 of infants, or for the dissolution of partnerships, " in all proceedings 
 for orders in the nature of injunctions where the same are requisite 
 for granting relief in any matter in which jurisdiction is given by 
 this Act to the county court," and for stay of proceedings at law for 
 debts provable under an administration suit then pending in such 
 court ; also by 31 & 32 Vict. c. 40, s. 12, in partition suits. Pro- 
 ■ vision is also made by ss. 3 and 9 of 28 & 29 Vict. c. 99, and 30 & 
 31 Vict. C; 142, s. 9, for the transfer of suits from the county court 
 to the Court of Chancery, and vice versd, either at the discretion 
 
 (/) 19 & 20 Vict. c. 108, SB. 50, 51. (i) Mountnoy v. Collier, ante, p. 951. 
 
 See Harrington (Earl) t. Ramsay, 22 Law (j) Banks v. Eebhech, 20 Law J., Q. B. 
 
 J., Exch. 326. An order for delivery of 476. 
 
 possession, however, made under these (k) Clayton \. l{enton,h.'R,, i'Eci- Ca. 
 
 sections does not affect the rights of a 158. 
 
 person not a party to the proceedings : (l) 30 & 31 Vict. c. 142, s. 9, and 
 
 Hodson V. Walker, L. E,., 7 Exch. 55. sched. C. Wilcox v. Marshall, L. R., 3 
 
 (g) .19 & 20 Vict. o. 108, s. 53. Eq. Ca. 270, 
 
 (K) Emery, In re, 4 C. B., N. S. 423. 
 
SECT. 1.] EQUITABLE ANU ADMIRALTY JUEISDICTION. 953 
 
 of a vice-chancellor, or by order of the judge of the county court 
 or vice-chancellor, whenever it appears during the progress of the 
 suit that the subject-matter exceeds or does not exceed 500^., as the 
 case may be (m) ; by s. 18 of the 28 & 29 Vict. c. 99, for an appeal 
 from the decision of the county court to a vice-chancellor («,), and. 
 by ss. 10 and 11 for the determination of the particular court in 
 which proceedings in equity must be taken or prosecuted under the 
 Act. 
 
 Admiralty jurisdiction. — By the 31 &; 32 Vict. c. 71, jurisdic- 
 tion in admiralty cases is given to certain county courts (designated 
 by order in council) over claims for salvage (o), towage, neces- 
 saries {p), or wages, subject in each case to the limitation of amount 
 specified in the Act, and also " as to any claim for damage to cargo 
 or damage by collision — in which the amount claimed does not 
 exceed three hundred pounds," s. 3. And by the 32 & 33 Vict, 
 c. 51, s. 2, " as to any claim in tort in respect of goods carried in 
 any ship" (§') subject to a similar limitation as to amount, which juris- 
 diction may be exercised by proceedings either in rem or in personam, 
 s. 3. By the 4th section of that Act it is enacted that the above 3rd 
 section of the 31 & 32 Vict. c. 71, shall extend to all claims 
 to damage to ships, whether by collision or otherwise, when the 
 amount claimed does not exceed 300^. It had been previously held 
 (under 3 & 4 Vict. c. 65), that the jurisdiction of the Court of 
 Admiralty does not extend to barges propelled by oars only {r), and 
 the same construction has now been put upon the above Acts con- 
 ferring admiralty jurisdiction upon the county courts (s). By ss. 6, 
 7, and 8, of the first-mentioned Act, provision is made for the transfer 
 of causes from the county court to the High Court of Admiralty {t), 
 or to another county court, according to circumstances, by s. 10 and 
 s. 5 of 32 & 33 Vict. c. 51, for the summoning of nautical assessors, 
 in any admiralty or maritime cause, to assist the judge ; by s. 21 
 of the former Act for the determination of the particular county 
 court in which proceedings should be commenced, and by s. 26 of 
 that Act for an appeal to the High Court of Admiralty from 
 the decree or order of the county court (w). If less than the sum 
 to which the jurisdiction of the county is limited, i.e. 300^., in 
 
 (m) See Baker v. Wait, L. B., 9 Eq. (g) See The Nuova Baffaelina, L. E,, 3 
 
 Ca. 103. Birhs v. SUverwood, L. E,, 14 Adm. & Eocl. 483. 
 
 Eq. Ca. 101. M The Bilbao, 2 Lush. 149. 
 
 (n) See Harper v. Pole, L. E., 3 Eq. («) Bvera/rd v. Kendall, L. E 5 P 
 
 Ca. 752 ; 30 & 31 Vict, c. 142, s. 35. 428. See The Dowse, L. E., Z Adm. & 
 
 (o) The county court had previously Eccl. 135. Simpson v. Blues, L. E. 7 C. 
 
 exercised a limited jurisdiction in salvage P. 290. 
 
 cases. See 25 & 26 Viet. o. 63, s. 49 ; 17 (t) See The Bengal, L. E. 3 Adm & 
 
 & 18 Vict. c. 104, ss. 458, 460. EccL 14. The Swam., ibid. 314. 
 
 (p) See The Biga, L. E., 3 Adm. & (m) See The Forest Queen L. E 3 
 
 Eccl. 516. Adm. & Eccl. 299. "' 
 
954. ACTIONS IN COUNTY COURT. [UHAP. XXL 
 
 aotions of tort, is " recovered " in a superior court (v), the plaintiff 
 is not entitled to costs (w). 
 
 • Jurisdiction ly consent. — By 19 & 20 Vict. c. 108, s. 23, it is 
 further enacted, that with respect to all actions other than for crim. 
 con. (now abolished), which may be brought in any superior court 
 of common law, if both parties shall agree by memorandum signed 
 by them or their respective attorneys, that any county court named 
 in such memorandum shall have power to try such . action, such 
 county court shall have jurisdiction to try the same. And (s. 25) 
 that in any action in the county court in which the title to any 
 corporeal or incorporeal hereditament, or to any toll, fair, market, 
 or franchise, shall incidentally come in question, the judge shall 
 have power to decide the claim, which it is the immediate object of" 
 the action to enforce, if both parties at the hearing consent in 
 writing, signed by them or their attorneys ; but the judgment of 
 the court in such cases is not to be evidence of title between the 
 parties or their privies in any other proceeding ; and the consent is 
 not to affect any right of, appeal. 
 
 A similar consensual urisdiction is by the 31 & 32 Vict. c. 71, 
 s. 3, and 32 & -33 Vict. c. 51, s. 2, given to the county court in 
 Admiralty causes, where the sum claimed exceeds the amount to 
 which their ordinary jurisdiction is limited. But no such con- 
 sensual jurisdiction is given to them in equity. 
 
 Waiver of objection to jurisdiction. — When parties appear before 
 a judge and submit their case to his determination, and make no 
 objection to his jurisdiction until after he has adjudicated, they are 
 often bound by his determination because they have assented to 
 it (x). Where a judge made an order under the Interpleader Act 
 which the Act gave him no power or authority to make without 
 the consent of the parties, and there was no express formal consent, 
 but both the plaintiff and defendant attended the hearing of the 
 summons before the judge, and took no objection to the making of 
 the order, it was held that they must by their conduct be taken to 
 have submitted the matter to his decision, and that the order was 
 binding and conclusive upon them as an award between them. It 
 was held, also, that as, the order was the order of a superior court, 
 the consent which was necessary to give jurisdiction need not be 
 stated on the face of the order, as it would be intended that the 
 court had jurisdiction (y); for nothing shall be intended to be out 
 of the jurisdiction of the superior court but what expressly appears 
 to be so (z). 
 
 (u) See Hewitt t. Cory, L. E., 5 Q. B. (y) Harrison v. Wright, 13 M. & W. 
 
 418. 816. 
 
 (mi) 31 & 32 Vict. c. 71, s. 9. (z) Peacoclc y. BeU, 1 Wms, Saund. 
 
 (x) Mumh V. Murray, 13 M. & "\V, 56. 74 a. 
 
SECT. 1.] JOINDER OF CAUSES OF ACTION. 955 
 
 So, where the 17 & 18 Vict. e. 125, s. 1, gave jurisdiction to a 
 judge to try issues of fact without a juiy, in case the parties con- 
 sented in writing, and the court or a judge allowed such trial, and 
 the parties to an action verbally consented to try issues of fact 
 before a judge without a jury, and both parties appeared, and the 
 case was heard and decided, it was held that they could not object 
 to his jurisdiction on the ground that there had been no consent in 
 writing, nor any order of the court, or a judge, allowing such trial 
 as required by the Act, but that both parties were estopped by their 
 conduct from talving the objection (a). 
 
 Where a party against whom costs have been given by a Court 
 of Quarter Sessions consents tirat the taxation shall take place after 
 the sessions are over, and the justices give judgment for costs nuna 
 pro tunc, the party so consenting is precluded from afterwards 
 objecting to the want of jurisdiction (5). 
 
 But where the objection is that the person adjudicating has no 
 power or jurisdiction over the matter in controversy (c), e.g., that 
 an arbitrator has not duly ^enlarged the time for making his award, 
 by which his authority is determined (d), the attendance of the 
 complainant and his taking part in the proceedings will not pre- 
 clude him from subsequently raising the objection ; although if the 
 objection be that some bare formality has not been observed, that 
 will be waived if, the parties are substantially before the right 
 tribunal, and the person who raises the objection takes part in the 
 proceedings, although under protest, intending to avail himself of 
 the decision if in his favour, aiid to object to it if dgainst him (e). 
 
 Of actions in the sujoeHor courts— Joinder of different causes of 
 action in the same suit. — By the Common Law Procedure Act, 1852, 
 ,15 & 16 Vict. c. 76, it is enacted (s. 3), that it shall not be neces-' 
 sary to mention any form or cause of action in any writ of summons; 
 and (s. 41) that causes of action, of whatever kind, provided they 
 be by and against the same parties and in the same rights, may be 
 joined in the same suit, except replevin or ejectment ; and where 
 two or more of the causes of action so joined are local, and arise in 
 different counties, the venue may be laid in either of such counties ; 
 but the court, or a judge, has power to prevent the trial of different 
 causes of action together, if such trial would be inexpedient, and 
 may order separate records to be made up, and separate trials to be 
 had ; also (s. 40), that in any action brought by a man and his wife 
 for an injury done to the wife, in respect to which she is necessarily 
 
 (a) Andrews v. Elliott, 25 Iiaw J., Q. (d) Ringland v. Lovmdes, 33 Law J 
 
 B.l. C.P.337. ■ 
 
 (5) Freeman v. Read, 30 Law J., M. 0. (e) Rinnland T. Lovmdes, 33 Law J 
 
 123. C. P. 25. 
 
 (c) Davies v. Price, 34 Law J., Q. B. 8. 
 
956 PLEADINGS IN ACTIONS. [CHAP. XXI. 
 
 joined as co-plaintiff, it sliall be lawful for the husband to add 
 thereto claims in his own right. 
 
 Requisites of the declaration. — Every declaration of the cause of 
 action niust be entitled of the court in which the action is brought, 
 and of the day of the month and year when it is pleaded, and must 
 bear no other time or date {g). It must have a certain formal com- 
 mencement and conclusion, and the name of the county from which 
 the jury are to come to try the action is in all cases to be stated in 
 the margin of the declaration, and taken to be the venue intended 
 by the plaintiff, and no venue is to be stated in the body of the 
 declaration, or in any subsequent pleading; but wherever local 
 description is required, such local description is to be given Qi), 
 and the cause of action must be proved to have arisen at the parti- 
 cular place named : but where local description is not necessary, 
 and the declaration does not allege that the injury was done in any 
 particular locality, it is not necessary to prove the exact place where 
 it was done (i). 
 
 The plaintiff is at liberty in all personal actions to lay his venue 
 where he pleases, except in certain actions against justices, con- 
 stables, officers and their assistants (Tc), and the court will not make 
 an order for changing the venue, unless there is manifest incon- 
 venience or impropriety in trying the cause in the county selected 
 by the plaintiff {I). 
 
 When the declaration is for a breach of duty, the facts creating 
 the duty should be set forth on the face of the declaration. It is 
 not enough to state that it was the duty of the defendant to do the 
 act which he is stated to have neglected to do (m). "The decisions," 
 observes Lord Campbell, " show that the allegation of duty in a 
 declaration is in all cases immaterial, and ought never to be intro- 
 duced, for if the particular facts set forth raise the duty, the alle- 
 gation is unnecessary ; and if they do not, it will be unavailing. 
 If the particular facts stated in the declaration do not raise the 
 duty, it cannot be established by other facts not stated. The 
 declaration, therefore, must stand or fall by the facts stated (w). 
 Negligence creates no cause of action unless it expresses or 
 establishes some breach of duty (o). 
 
 The novelty of the particular complaint set forth in a declaration 
 is no objection to it, provided it shows an injury cognizable by law {p). 
 
 (</) 15 & 16 Vict. e. 76, s. 54. 119. Church v. Bamett, L. E., 6 C. P. 
 
 (A) 15 & 16 Vict. 0. 76, Bs. 59, 60. Eeg. 116. 
 
 Gen. 16 Vict., 1 Ell. & Bl. App. Ixxix. (m) Broum v. MaUett, 5 C. B. 615. 
 
 (i) Simmons v. LiUystone, 8 Exoh. 441; (n) Seymowr v. Maddox, 16 Q. B. 331. 
 
 22 Law J., Exoh, 218. (o) Dution v. PowUs, 30 Law J., Q. B 
 
 (h) Ante, p. 586. And see Chitty's 169; 31 ib. Q. B. 191. 
 
 .Arch. Pr., 12th edit., title, Venue. (p) Ashby v. White, 1 Smith's L, C . 
 
 (I) HeUiwell t. Hohson, 3 C. B., N. S. 6th ed., 227. 
 761. See Levy v. Rice, L. R., 5 C. P. 
 
SECT. 1.] DECLARATION — PLEAS. 957 
 
 Statement of specidl damage. — If any peculiar or special damage 
 lip,s been sustained by the plaintiff, it should be stated in the 
 declaration, with svich reasonable particularity as to give notice to 
 the defendant of the peculiar nature of the injury. Where the 
 action is not maintainable at all without proof of special damage, 
 then the fact of special damage having been sustained cannot be 
 given in evidence without a statement of it in the declaration ; and 
 in other actions, such as actions for words which are actionable in 
 themselves, particular instances of special damage cannot be given 
 in evidence, unless they are particularised in the declaration (g). 
 
 It is not necessary in a declaration by a plaintiffj who sues as 
 the adra"inistrator of his deceased wife for an injury causing her 
 death, under 9 & 10 Vict. c. 93, for his own benefit as husband, to 
 disclose or allege any pecuniary damage suffered by the plaintiff 
 beyond the ordinary claim for damages (r). 
 
 Several counts in deelaraiion in respect of the same cause of action. — 
 By the rules a:id orders made by the judges pursuant to the Common 
 Law Procedure Act, 1852, it is provided that, except as thereinafter 
 mentioned, several counts on the same cause of action shall not be 
 allowed, and any count or counts used in violation of the rule may, 
 on the application of the party objecting, within a reasonable time, 
 or before an order made for time to plead, be. struck out or amended 
 by the court or a judge, on such terms as to costs or otherwise as 
 such court or judge may think fit; but the court or judge may allow 
 such counts on the same cause of action as may appear to be proper 
 for the purpose of determining the real question in controversy 
 between the parties on its merits, subject to such terms as to costs 
 and otherwise as the court or judge may think fit. And when no 
 rule or order has been made as to costs, and on the trial there is 
 more than one count founded on the same cause of action, and the 
 judge or presiding of&cer before whom the cause is tried shall, at 
 the trial, certify to that effect on the record, the plaintiff will be 
 liable for all costs occasioned by such count, in respect of which he 
 has failed to establish a distinct cause of action, including those of 
 the evidence as well as those of the pleading (s). 
 
 Pleas. — AU pleadings must be entitled of the court in which 
 the action is brought, and must bear date the day of the month and 
 year when they are pleaded (t). 
 
 Pleas to the jurisdiction — Privileges of amhassadors. — The ac- 
 credited ambassadors of foreign potentates resident in this country 
 are not amenable to the jurisdiction of our civil tribunals. They 
 
 In) Srovming. V, Newman, 1 Str. 666; («) Mercer v. Stanlury, 25 Law J., 
 
 ante, p. 8l'3. Exdh. 316 ; 2 H. & N. 155, n. 
 
 (r) Chapman T. Rothwell, 27 Law J., (<) 16 & 16 Vict. c. 76. 
 
 Q. B. 315 i ante, p. 423. 
 
958 PLEADINGS IX ACTIONS. [CIIAP. XXt. 
 
 cannot be lawfully imprisoned in any civil proceeding, nor can 
 their goods bs taken in execution ; and if a writ is sued out against 
 thejn, the defendant may defeat the action by pleading to the 
 jurisdiction of the court (u). In other cases, to repel the jurisdic- 
 tion of the king's court, you must show a more proper and more 
 sufficient jurisdiction, for if there is no other mode of trial that 
 alone will give the king's courts a jurisdiction (x). 
 
 Plea of Not Guilty. — In actions for a wrong or a breach of duty, 
 the plea of not guilty operates, as we have seen, as a denial only 
 of the breach of duty or wrongful act alleged to have been com- 
 mitted by the defendant, and not of the facts stated in the induce- 
 ment, and no other defence than such denial is admissible under 
 that plea. All other pleas in denial must take issue on some 
 particular matter of fact alleged in the declaration (y). But where 
 an action is brought against a master or employer for injuries 
 sustained -through the negligence of his servant or workman in 
 doing his master's work, or executing' his orders, the plea of not 
 guilty puts in issue the fact whether the party doing the injury 
 was the servant of the defendant, and whether he was doing his 
 work or executing his orders (2). If several wrongful acts are 
 alleged in the same declaration, the plea of not guilty puts them 
 all in issue (a). "Where special damage is substantially the thing 
 complained of, as in actions for verbal slander, where the words 
 spoken are not actionable jper se, the plea of not guilty puts in issue 
 the existence of the special damage (&). 
 
 Not guilty hy statute. — The 5 & 6 Vict. c. 97, s. 3, which repeals 
 so much of any clause in any act of a local and personal nature 
 whereby parties are entitled to plead the general issue, and give the 
 special matters in evidence, is, T3y its preamble^ confined to actions 
 " for any matter done in pin-suance of, or under the authority of, 
 the said acts " (c). 
 
 0/ pleading severed matters of defence. — By the new rules of 
 pleading it is provided, that in all actions, for torts, all matters in 
 confession and avoidance of the cause of action shall be pleaded 
 specially, as in actions on contract (d). The defendant may, by 
 leave of the court or a judge, plead, in answer to the declaration or 
 other subsequent pleading of the plaintiff, as many several matters 
 as he shall think necessary for his defence, upon an affidavit being 
 made by him or his attorney, if required by the court or judge, to 
 
 («) MagdaUna ISi. Kav. Co. v. Martin, (a) Card r. Card, 5 0. B. 632. 
 
 28LawJ.,Q. B. 310. ((,) Wilbtj v. Mston, ante, -p. S15. 
 
 . (x) Ld. Mansfield, Mostyn t. Fabrvjas, (c) Carr v. Royal Ex. Ass. Co., 1 B; & 
 
 Cowp. 172. S. 95(3 ; 31 Law J., Q. B. 93. 
 
 {y) Reg. Gen. Hil. Term, IB Yict.j 1 (rf) Keg. Gen. Hil. Term, 16 Vict., 1 
 
 BU. & Bl. App. IxxKi. Ell. & Bl. App. Ixxxi. 
 
 (z) Mikhdl T. Crasswenm-i 13 C. B. 245, 
 
SECT. 1.] PLEAtlING SEVEIUL MATTKKS, 959 
 
 the effect that lie is advised or 'believes that he has just ground 
 to traverse the several matters proposed to be traversed by him, 
 and that the several matters sought to be pleaded are respectively- 
 true in substance and in fact. But the pleas of not guilty, release, 
 statute of limitations, bankruptcy of the defendant, coverture, 
 denial that the property, an injury to which is complained of, is 
 the plaintiff's, leave and licence, and son assauli demesne, may be 
 pleaded together as of course, withoiit leave (e). 
 
 Except in cases specifically provided for, if either party plead 
 several pleas, replications, avowries, cognizances, or other pleadings, 
 without leave of the court or a judge, the opposite party is at 
 liberty to sign judgment ; which may, however, be set aside upon 
 an affidavit of merits (/). 
 
 Several pleas, replications, or subsequent pleadings, or several 
 avowries or cognizances, founded on tlie same ground of answer or 
 defence, are not to be allowed, unless they appear to the court or 
 judge to be proper for determining the real question in controversy 
 between the parties on its merits, and subject to such terms as to 
 costs and otherwise as the court or judge may think fit. When no 
 rule or order- has been made, and on the trial there is more than one 
 plea, replication, or subsequent pleading on the record, founded on 
 the same ground of answer or defence, and the judge or presiding 
 officer, before whom the cause is tried, certifies to that effect on the 
 record, the defendant will be liable for all costs occasioned by such 
 plea or other pleading, in respect of which he has failed to establish 
 a distinct ground of answer or defence, including those of the 
 evidence as well as those of the pleading {g). 
 
 Traverses hy the defendant.— The defendant may either traverse 
 generally such of the facts contained in the declaration as might 
 have been denied by one plea, or may select and traverse se^jarately 
 any material allegation in the declaration, although it might have 
 been included in a general traverse. He is at liberty also to 
 traverse the whole or part of a replication or subsequent pleading 
 of the plaintiff by a general denial, or, admitting some part or 
 parts thereof, to deny all the rest, or to deny any one or more 
 allegations (7i). 
 
 Traverses h/ the plaintiff. — The plaintiff, on the other hand, is 
 at liberty to traverse the whole of any plea or subsequent pleading 
 of the defendant, by a general denial ; or, admitting some part or 
 parts thereof, to deny all the rest, or to deny any one or more 
 allegations (i). 
 
 (e) 15 & 16 Vict. c. 76, ss. 81, 84. {{/) Reg. Gen. 16 Vict., 1 Ell. & BI. 
 
 (/) 35 & 16 Vi3t. c. 76, s. 86. Messitcr App. Ixxix. 
 V, Soe, 13 C. B. 162. (A) 15 & 16 Vict, c. 76, ss. 76, 78, 
 
 (i) 15 & 16 Vict. 0. 76, 8, 77, 
 
960 PLEADINGS IN ACTIONS. ' [CHAP. XXI. 
 
 Requisites of special pleas. — A plea pleaded generally to the 
 whole declaration must offer a good answer in point of law to all 
 the causes of action comprised therein. If it does not do this it is 
 ,bad, and the plaintiff is entitled to judgment for so much as is not 
 covered by the plea {k). A plea, which is a good plea to some only 
 of the counts of a declaration, should in the introductory part 
 thereof be confined to those counts, and not be pleaded generally to 
 the whole declaration, notwithstanding s. 75 of the Common Law 
 Procedure Act, 1852, 15 & 16 Vict. c. 76, which enact,s, that pleas 
 capable of being construed distributively shall be taken distribu- 
 tively, for that has reference only to the finding of the jury upon 
 the issues joined {I). If a plea, which professes to answer the 
 whole of the declaration, is in truth an answer only to part, the 
 plaintiff may be entitled to judgment imn obstante veredicto {in). 
 
 In an action of libel, where the declaration sets out several 
 distinct libels in different counts, the defendant cannot plead one 
 plea in justification of the whole, but must plead the truth of the 
 libel to each coiint separately (w). 
 
 Any plea, good in substance, is not objectionable on the ground 
 of its treating the declaration either as framed for a breach of 
 contract or for a wrong (s. 74). 
 
 Where proof of the precise locality is material to the defence, 
 and the place is not described in the declaration {ante, p. 956), the 
 defendant is bound to show it by his pleading (o). 
 
 Fictitious and needless averments in pleading. — All statements 
 which need not be proved, such as the statement of time, quantity, 
 ■quality, and value, where these are immaterial ; the statement of 
 losing and finding, and bailment, in actions for goods, or their value; 
 the statement of acts of trespass having been committed with force 
 and arms, and against the peace, &c., and all statements of a like 
 kind, are to be omitted in pleading {p). 
 
 , " It is an elementary rule in pleading, that when a state of 
 facts is relied on it is enough to allege it simply, without setting 
 out the subordinate facts which are the means of producing it, or 
 the evidence sustaining the allegation. Thus, in a case very 
 familiar, if a trespass be justified by. a plea of highway, the pleader 
 never states how the locus in quo became a highway ; and if the 
 plaintiff's case is that the locus in quo, by an order of justices, 
 award of inclosure commissioners, local act of parliament, or any 
 other lawful means, had ceased tp be a highway at the time alleged 
 
 (A) Eogm-s v. Spence, 12 CI. & Fin. 718. («i) Xj^»e v. Siesfeld, 1 H. & N. 281. 
 
 (/) Jervis, C.J., Odbrid v. Dresser, 15 (n) Honess v. Stuhis, 7 C. B., N. S. 
 
 C. B. 627. WilJcimon v. £iriy, 23 Lavir 555 ; ante, p. 816. 
 
 J., C. P. 224. Chajppell v. Davidson, 18 (o) Webber v. Sparlces, 10 M. & W. 487. 
 
 C. B. 194. But see Blagrave v. Brist. Ellison \. Isles, 11 Ad. & E 676 
 Wat. Go,, 1 H. & N. 387. (p) 16 & 16 Vict. c. 76, s. 49. 
 
SECT. 1.] PAYMENT INTO COUET. 961 
 
 in the declaration, he simply puts in issue the fact of its being a 
 highway at the time, withoiit alleging the particular mode by which 
 he intends to show, in proof, that it had before then ceased to be 
 such. The certainty or particularity of pleading is directed, not to 
 the disclosure of the case of a party, but to the informing the 
 court, the jury, and the opponent, of the speciiic proposition for 
 which he contends ; and a scarcely less important object is the 
 bringing the parties to issue on a simple and certain point, avoiding 
 that prolixity and uncertainty which would very probably arise 
 from stating all the steps which lead up to that point " (q). 
 
 Defences arising after the commencement of the action may be 
 pleaded, together with pleas of defences arising before the com- 
 mencement of the action, but the plaintiff may confess such plea, 
 and become entitled to the costs of the cause up to the time of 
 pleading such plea. The rule does not apply to the case of a plea 
 pleaded by one or more only out of several defendants (r). Any 
 defence arising after the commencement of the action must be 
 pleaded according to the fact, without any formal commencement 
 or conclusion, and any plea which does not state whether the 
 defence therein set up arose beforg or after action, will be deemed 
 to be a plea of matter arising before action (s). 
 
 Payment of money into court by way of compensation or amends, 
 —By 15 & 16 Vict. c. 76, it is enacted (s'. 70), that it shall be 
 lawful for the defendant in all actions (except actions for assault 
 and battery, false imprisonment, libel, slander, malicious arrest or 
 prosecution, criminal conversation (which is now abolished), or 
 debauching the plaintiff's daughter or servant, and, by leave of the 
 court or a judge, upon such terms as they or he may think fit, for 
 one or more of several defendants, to pay into court a sum of 
 money by way of compensation or amends, and such payment is 
 to be pleaded, as near as may be, in the form given by s. 71 of 
 the statute. However, in trespass for breaking and entering the 
 plaintiff's house, and assaulting his son, whereby the plaintiff lost 
 his son's services, it was held that the defendant might pay money 
 into court (f), and in cases of libel and slander payment into court, 
 together with a plea of apology, may be made as mentioned ante, 
 p. 815. The plaintiff may reply to the plea by accepting the sum 
 paid into court in full satisfaction and discharge of the cause of 
 action in respect of which it has been paid in, and is at liberty, in 
 that case, to tax his costs,- and, in case of nonpayment thereof 
 within forty-eight ho\rrs, to sign judgment for such costs ; or the 
 
 («) William T. Wilcox, 8 Ad. & E. (s) 15 & 16 Vict. c. 76, s. 68. 
 
 833. (0 Newton v. Holford, 6 Q. B, 921, 
 
 (r) Eeg. Gen, 1$ Vict., 1 Ell. & Bl. Aeton'v. Pfrlces, 16 M. & W. 885. 
 App. Ixiicxii. 
 
 « Q Q 
 
1562 PLEADINGS IN ACTIONS. [CHAP. XXI. 
 
 plaintiif may reply that the sunr paid into court is not enough to 
 satisfy the claim 6f the plaintiff in respect of the matter to which 
 the plea is pleaded ; and, in the event of an issue thereon being 
 found for the defendant, the defendant is entitled to judgment and 
 his costs of suit (u). 
 
 Flea of infancy in actions ex delicto': — A plea of infancy con- 
 stitutes no defence, as we have seen, to an action for an assault or 
 false imprisonment, or to an action of libel and slander, or for 
 seduction ; but it is an answer to an action for deceit, and to actions 
 of tort founded on contract, such as an action for a false and 
 fraudulent representation by an infant that he was of full age, 
 whereby the plaintiff was induced to contract with him ; for if 
 such an action was maintainable, all the pleas of infancy would be 
 taken away, as such affirmations are in every contract (»). 
 
 Plea of accord and satisfaction. — Whenever the plaintiff has 
 consented to receive, and has actually received, satisfaction and 
 recompense for the injury he has sustained, the cause of action is 
 discharged, although the satisfaction, and recompense were not one 
 hundredth part of the value of his loss ; for, by his own accord 
 and agreement, the injury is dispensed with, and in all actions in 
 which nothing but amends are to be recovered in damages, there a 
 concord carried into execution is a good plea (2/). The ordinary 
 form of a plea of accord and satisfaction is to the effect that, after 
 tlie accrual of the cause of action, and before the commencement 
 of the suit, the defendant delivered to the plaintiff, and the plaintiff 
 accepted from the defendant, certain goods and chattels, or moneys, 
 or securities for money, &c., specifying the nature and character of 
 the things delivered in full satisfaction and discharge of the cause 
 of action, and of all damages sustained therefrom by the defendant. 
 To support this plea it must be proved that the satisfaction was 
 given and accepted in respect of the identical cause of action 
 included in the declaration; for where a plaintiff who had received 
 some internal injury in a railway collision, but was not aware of 
 it, accepted a small sum of money as compensation for damage 
 done to his clothes and hat, and then brought an action for the 
 injury to the person, it was held that such cause of action was 
 untouched by the accord and satisfaction in respect of the injury 
 to the clothes («). And in cases where the person injured has been 
 
 (it) As to the effect of a payment of 460. See Lee v. Lancasldre and Yorhhire 
 
 money into court in actions of tort, see Ewy., L. B., 6 Ch. App. 527.. As to accord 
 
 ,\^'r\ T, , r. and satisfaction for the injury and aZnts 
 
 (x) Johnson T. Pj/e, 1 Sid. 258. Ziv. consequences, Mideal t. Ot. West. Hail. 
 
 Add. Loan Ass. v. Fairkurst, 9 Exch. Co., ib. 706. As to inspection of the 
 
 il,\ A J r, , ■,-. - reports of railway officials and medical 
 
 (y) Andrew y.Boughey, Dyer, 75 b. men to the company, see Baker v. Land. 
 
 (z) Roberts v. E. C. Mil. Co., 1 jb\ & 1'. and South- West? Bail. Co., L. K., 3 Q. B. 
 
SECT. 1.] INFAKCY — ACCOED AND SATISFACTION. 963 
 
 indiiced by the false representations of the medical ofacers of the 
 railway company to accept a small and almost nominal siim in full 
 of all demands, and to give a receipt for the same, the company 
 will be restrained from setting up the plea of accord and satisfac- 
 tion or relying upon the receipt given at aU (a). 
 
 Either money or chattels, railway bonds or negotiable securities 
 or an estate or interest in land, or a mere agreement only, may be 
 given, granted, or surrendered, and accepted by way of compensa- 
 tion and amends for the damages that may have been sustamed. 
 If goods of the defendant are in the hands of the plaintiff, and it is 
 agreed between the plaintiff and defendant that the plaintiff shall 
 retain these goods as his own property, in satisfaction and dis- 
 charge of the cause of action, and the goods are accordingly retained 
 and accepted by the plaintiff in satisfaction, &c., this is a valid 
 accord executed, and is pleadable in bar of an action (b). But the 
 delivery and acceptance of a man's own goods and chattels con- 
 stitute no satisfaction. Thus, in an action of trespass, against a 
 defendant in respect of an entry by him upon the plaintiff's land, 
 the defendant said that after the entry there was an accord be- 
 tween them that the plaintiff should re-enter into the same land, 
 and should enjoy it without interruption by the defendant, and 
 that the defendant should deliver to the plaintiff all the title deeds 
 concerning' the said land, that the plaintiff had re-entered, and 
 that the defendant had delivered the title deeds ; and it was held 
 that this was no answer, for it must be intended that the title 
 deeds were the plaintiff's own title deeds, and then to deliver hitn 
 ' his own deeds, and put him in possession of his own land, was no 
 satisfaction of the wrong done before in keeping him out ; but it 
 was admitted, that if the defendant had shown any title in himself 
 to the possession of the deeds, then his delivering them up would 
 have been a good bar to the action (c). 
 
 The meaning of an accord and satisfaction is, that there has 
 been an agreement for something to be done in satisfaction and 
 discharge of the cause of action, and that the agreemeint has been 
 completely performed, so that there is a total extinguishment of 
 the original cause of action. The plea, therefore, must set forth an 
 accord executed, showing a complete performance by the defendant 
 of the substituted contract (cl). Where the defendant had slan- 
 dered the plaintiff, and after the iitterance of the slander the 
 
 91. Cossey y. London and Si-ighton JRvn/., Fund, L. R., 6 C. P. 252i Richards v. 
 
 h. E., 5 0. P. 146. And as to inspec- Gettathj, L. B., 7 C. P. 127. 
 
 tion generally, WooUey v. North Land. (a) Stewart v. Ot. West, Rwy., 2 De G. 
 
 Hwt/., L. E., i C. P. 602 ; 38 Law J., 0. J. & S. 319. 
 
 P. 317. Pape t. Idster, L. E., 6 Q. B. (6) Jones v. Sawkins, 5 C. B. 142. 
 
 242. Mahoney v. Widows Life Assurance (c) Bro. Abr. Accord, 1. 
 
 (d) aalmel v. Dresser, 15 C. B. 622, 
 
 Q q Q 2 
 
964 PLEADINGS IN ACTIONS. [CHAP, XXI. 
 
 plaintiff and defendant met, and it was agreed that certain letters 
 and documents in the handwriting of the plaintiff, in the pos- 
 session of the defendant, containing certain proofs against the 
 plaintiff of the truth of the charges made by the defendant, should 
 he hurnt, and that ■ no action should be brought, and the letters 
 were burnt, but the plaintiff, nevertheless, brought an action, it' 
 was held that the accord executed was a bar to the action (e). 
 
 Plea of the pendency of another action for tlie same lurong. — "The 
 law abhors multiplicity of actions, and therefore, whenever it appears 
 u^pon record that the plaintiff has sued out two writs against the 
 same defendant for the same thing, the second writ shall abate" (/). 
 Therefore, in an action of trespass for a horse, it is a good plea in 
 abatement that another action is pending for the same trespass, 
 whether the action be in the same court or in another and different 
 court of co-ordinate jurisdiction {cf). But the pendency of a suit 
 in an inferior court (h), or in a foreign court (i), cannot be pleaded 
 to an action in one of the courts of Westminster for the recovery 
 of the same demand ; and if an action be brought in the county 
 court, the pendency of an action in the superior court does not 
 oust the jurisdiction of the county court (k) ; also, if the two suits 
 are in their nature different, if the proceeding in one is in rem, 
 and the other in personam, the pendency of the one cannot be 
 pleaded in suspension of the other {!). If a plaintiff sues both at 
 law and in equity for the same cause of action, he may be com- 
 pelled to elect in which suit he wiU. proceed (m). 
 
 The court in many cases will relieve on motion where different 
 actions are brought for the same cause, instead of putting the party 
 to plead. Thus, where compensation in damages has been claimed 
 for a trespass committed by several persons,'_and full compensation 
 in damages has been received from one of the co-trespassers, the 
 court will interfere summarily to' prevent the plaintiff from seeking 
 the same compensation a second time from another co-trespasser ; 
 but where the injury done is an injury to character from the pub- 
 lication of a libel, the court will not interfere in a summary way 
 to prevent the continuance of proceedings against the publisher of 
 the Ubel, on the ground that damages have been recovered by the 
 plaintiff from another publisher of the same libel, as the nature 
 
 (e) i^ne t. Applegate, 1 Stark. 97. As Scott v. Ld. Seymour, 31 Law J., Exch. 
 
 to an agreement for the making and 457. Smifv.PilUnglon,Zl'LmfJ.,Cl.'&. 
 
 acceptance of a public apology, Boosey v. 81. As to two actions for the same cause 
 
 Wood, 34 Law J., C. P. 65. in the Admiralty Court in this country 
 
 (/) Bac. Ahr., Abatement, M.' and abroad, see The Mali Ivo, h. E,., 2 
 
 (g) Lev. Ent. 54. Sparry's case, 5 Co. Adra. & Eccl. 356. 
 
 62 a; Com. Dig., Abatement, H. 24, (i) M'Murmy v. Wi-igU, 11 W. E, 35. 
 
 (h) lavghton v. TayJor, 6 M. & W. Mssil t. Willianmn, 7 Exch. 391 
 
 ^^f\' ,,. , „ ^ . (.i) Marnier y..BeU,TM.OQIe,F.C.28^. 
 
 W Cox T. Mitchell, 29 Law J., C. P. (m) Sinv^cn v. Sudd, 21 Law J., C. P 
 
 83. Oitdl V. Lepage, 5 Do G. & Sm. 95, 156, i » »" u., u. jr, 
 
SKCT. 1.] PLEA OF JUDGMENT UECOVEKED. 965 
 
 and extent of the injury in each particular case depend upon the 
 extent of the circulation of the libel (n). 
 
 Plea of Judgment recovered (o). — ^Whenever judgment has been 
 recovered in an action of tort, the judgment, if pleaded, is a bar to 
 any subsequent action for the same wrong ; " for you shall not 
 bring the same cause of action twice to a final determination; nemo 
 dehet bis vexari pro eadem cmisd : and what is the same cause of 
 action is, where the same evidence will support both actions " (p). 
 But by allowing judgment to go by default in an action to which 
 there is a good defence, the defendant is not precluded from setting 
 up such defence in any subsequent action in which the matter may 
 arise between the same parties (q). In an action for slander ,you 
 cannot have an action twice over against the same person for the 
 utterance of the same words on the same occasion, but every fresli 
 utterance and publication of the slander create a fresh cause of 
 action, so that you may have two actions for words spoken at 
 different times, conveying distinct imputations upon the plaintiff ; 
 and judgment recovered in the first action would be no bar to the 
 second action. Every plea alleging that the plaintiff brought a 
 prior action against the defendant for the same wrong, and recovered 
 judgment therein (r), must contain in the margin thereof a state- 
 ment of the date of such judgment ; and, if such judgment be in 
 a court of record, of the number of the roll, if any, on which the 
 proceedings are entered. In default of such statement, the 
 plaintiff wiU be at liberty to sign judgment as for want of a plea ; 
 and in case the same be falsely stated by the defendant, the 
 plaintiff, on producing a certificate from the proper of&cer or 
 person having the custody of the records or proceedings of the 
 court where such judgment is alleged to have been recovered, that 
 there is no such record or entry of a judgment as therein stated, is 
 at liberty to sign judgment as for want of a plea (s). 
 
 If the record, when produced, shows on the face of it that the 
 cause of action in the second suit is not the same as that for 
 which judgment was recovered in the former action, the record at 
 once disproves the plea, and the plaintiff will be entitled to a 
 verdict (t). But the varying of the form of the claim, where the 
 claim is substantially the same, will not be allowed to defeat the 
 operation of the rule. Therefore, where a servant in husbandry, 
 being hired for a quarter of a year, and having entered the service, 
 
 (n) MaHin v. Kennedy, 2 B. & P. 69. ()•) See Basham v. Lumhy, 3 C. & P. 
 
 (o) As fo the effect of a foreign juclg- 489 n. 
 
 ment in rem, see Castrigue v. Imrie, L. B., (s) Reg. Gen. Hil. T., 16 Vict., E. 10 ; 
 
 i lingl. & Ir. App. 414. ' 1 ilH. & Bl. App. iii. 
 
 ( b) Kitchen v. CampbeU, 3 Wils. 304 ; (0 Wadaworth v. Bentley, 23 Law J., 
 
 2 W. Bl. 827. Q- B. 3. 
 
 (7) HowkU r. Tarte, 31 L. J., C. V, 150. 
 
9.66 PLEADINGS IN ACTIONS. [CHAP. XXI. 
 
 was discharged therefrom before the end of the quarter, and then 
 sued her toaster in the county court for discharging her without 
 reasonable cause, and her master obtained a verdict on the ground 
 that he had good cause for dismissing her, and the servant then, 
 after the qimrter had elapsed, took out a summons before justices 
 against her master to recover the quarter's wages, it was held that 
 the question before the justices under this summons was substan- 
 tially the same as that which had been adjudicated upon by the 
 county court, viz., whether the dismissal was wrongful; that the 
 decision in the county court was conclusive between the parties, 
 and coiild not be reviewed by the justices. "It was open to the 
 justices," observes Cockburn, C.J., " to inquire whether the county 
 court had jurisdiction, and whether the judge had determined that 
 the discharge of the respondent was rightful ; but as soon as they 
 had ascertained .both those facts in the affirmative, they were 
 bound by law to treat- the decision of the county court as conclu- 
 sive between the parties, and not to allow the dispute as to the 
 discharge being wrongful to be reopened " (to). 
 
 The recovering from a servant of damages for leaving the 
 service of his master, has been held to be a bar to a second action 
 against another person for seducing the servant away from his 
 master's service, because the damage for the loss of service was 
 compensated for in the first action (x). 
 
 If two commit a joint tort, the judgment against one is of 
 itself, without execution, a sufficient bar to an action against the 
 other for the same caiise (?/) ; and whenever the cause of action in 
 the two suits is identical, the recovery of judgment in the one is a 
 bar to the other (z). A judgment, therefore, in a county court, is a 
 bar to an action on the same subject-matter in any other court (a). 
 If, therefore, two persons jointly convert goods, and one of them 
 receives the proceeds, you cannot, after a judgment against one in 
 trover, which is unsatisfied, have an action against the other for 
 the same conversion ; or, having once elected to treat the matter as 
 a wrong, bring an action against the other for money had and 
 received^ to recover the value of the goods (&). But a judgment 
 obtained upon some technical collateral point, not touching the 
 substantial cause of action between the parties, is no bar to a 
 subsequent action. If the plaintiff makes a mistake in his 
 declaration, and the defendant demurs, and judgment is given for 
 
 (u) Soutledge v. Ilislop, 29 Law J., M. Berryman, 3 Doug. 288. 
 
 ^'?\'t>- j k j 7, o t. ,„,. <"^ ^'"'*" ■»■• ^i^' 9 Exch. 288; 23 
 
 (x) Bird V. Bandall, 3 Burr. 1345. Law J., Exch 42 
 
 r„l^^ f '"^ ""■ ^°'"'^'2^ M- & W. 504- (6) BuMand w. Johnson, 15 C. S. 161 ; 
 
 506 ; Bnnsmead v. ffm-nson, L. E., 6 23 Law J., C. P. 204. Brown y.Wootton, 
 
 \\%ij' 4 r, „. , „,.„. Cro. Jac. 73. Brinsmead \: Harrison, 
 
 (z) Stades case, i Co. Sib. PhiUips v. supra. 
 
SECT. 1.] PLEA OF JUDGMENT REOOVEEED. 9G7 
 
 him, the plaintiff may rectify the mistake in a second action (c). 
 " Wlaere the declaration in the second action is framed in such a 
 manner that the causes of action may he the same as those in the 
 first suit, it is incumbent on the party bringing the second action 
 to show that they are not the same " (d). " The plaintiff who 
 brings a second action, ought not to leave it to nice investigation to 
 see whether the two causes of action be the same; he ought to 
 show, beyond all controversy, that the second is a different cause of 
 action from the first." "Where there are two distinct demands not 
 in the least blended together, and the plaintiff has failed thro.ugh 
 inadvertence in proving one of them, he may maintain a second 
 action for the other (e). "Whenever the same point was not in issue 
 in the' prior action, the judgment in such prior action can have 
 no effect upon the second action (/ ) ; but when the pleading and 
 the state of the record are such that the plaintiff might, if he had 
 thought fit, have recovered his whole demand in the first action, 
 he cannot afterwards be allowed to recover it in a second action. 
 
 Eecovery of judgment tipon a contract with insurers against 
 loss is, as we have seen, no bar to an action against the wrong- 
 doer who occasioned the loss, although the insurer has received a 
 full indemnity (g). 
 
 A plea of the recovery of judgment and damages in an action 
 for a false imprisonment upon a charge of felony, is no answer to an 
 action for a malicious prosecution for the same felony. "It is 
 altogether," observes Parke, B., " a different cause of action. The 
 taking a man upon a charge of felony, is distinct from the act of 
 going before a grand jury and falsely and maliciously taking an 
 oath to get a bill found against him for the same felony, and then 
 going before a petty jury and trying to induce them to find him 
 guilty (A). 
 
 "Where the second action is founded upon some special damage 
 -flowing from the original wrong, a plea of jud^ient recovered in an 
 action for such original wrong, will be a bar to such second action, 
 unless the special damage alleged in the declaration be shown to 
 constitute a new cause of action. Thus, where the plaintiff in his 
 declaration alleged that the defendant beat the plaintiff's head 
 against the -ground, and that the plaintiff brought an action of 
 assault and battery for that and recovered damages, and that since 
 the recovery of such damages, by reason of the same battery, a 
 piece of the plaintiff's skull had come out, and the defendant 
 
 (c) Lampen v. Kedgemn, IMod. 207. HowUtt t. Tarte, 31 Law J., C. P. 146. 
 
 U) Baqot (Lord) T. Williams, 3 B. & C. (fir) Yales V. Whyte, i B. N. C. 282 ; 
 
 239 ante, pp. 253, 422. 
 
 (e) Seddon t. Tuiop, 6 T. B. 609. {h) Guest v. Warren, 9 Exch. 379 ; 23 
 
 (/) CaHer v. Janies, 13 M. & W. 137. LaTV J., Exch. ,121. .... 
 
968 PLEADINGS IN ACTIONS. [CHAP. XXI. 
 
 pleaded in bar the recovery mentioned in the declaration, and 
 averred it to be for the same assault and battery, and the plaintiff 
 demurred, and it was urged that this subsequent damage was a 
 new matter which could not be given in evidence in the first action, 
 when it was not known, it was held that the recovery of damages 
 in the first action was an absolute bar to any subsequent action 
 for the same battery (i). 
 
 Continuing injuries — Judgment recovered. — But where the injury 
 is of a continuing nature, the bringing of an action and the reco- 
 very of damages for the perpetration of the' original wrong does not 
 prevent the injured party from bringing a fresh action for the con- 
 tinuance of the injury. Thus^ if a building has been wrongfully 
 erected upon the plaintiff's land,, and the plaintiff has brought an 
 action and recovered damages for the trespass, he is not thereby 
 precluded from bringing a fresh action and recovering fresh damages 
 for the continuance of the erectioui If the defeildant, for example, 
 has thrown a heap of stones on the land of the plaintiff, and leaves 
 them there, the defendant is responsible in trespass from day to 
 day until they are removed. Thus, where the trustees of a turn- 
 pike road built buttresses on the land' of the plaintiff to support 
 the road, and the plaintiff thereupon sued them and their workmen 
 in trespass for such erection, and accepted money paid into court in 
 fuU satisfaction of the trespass, it was held that after notice to the 
 defendants to remove the buttresses, and a refusal to do so, the 
 plaintiff might bring another action of trespass against them for 
 keeping and continuing the buttresses on the land, to which the 
 former redovery was no bar (k). 
 
 So where an action was brought against the defendant for 
 obstructing an ancient window of the plaintiff's house, by keeping 
 and continuing a certain roof before then wrongfully erected 
 adjoining the said house, to the injury of the plaintiff's reversion, 
 and a former judgment recovered by the plaintiff against the de- 
 fendant for the same grievance was pleaded in bar, and the plaintiff 
 replied that the grievances were not the same, and issue was joined 
 thereupon, and it appeared that on a former trial between the same 
 parties of an action for an injury to the plaintiff's reversion in the 
 same premises by erecting and keeping up the roof, the plaintiff 
 recovered damages, it was held that such recovery was no bar to 
 the second action ; for if the erection of the roof in the first instance 
 was an injury to the reversion, the continuance of it subsequently 
 to the first action was a fresh injury to the reversioner, in respect 
 of which a fresh action was maintainable (l). 
 
 (i) Fetter t. Beale, 1 Salk. 11, (I) ShadwOl v. HutcUmon, 2 B. & Ad. 
 
 (i) Hdmes y.Wiison, 10 Ad. & E. 503. 97. 
 
SECT._ 1.] JUDGMENT RECOVERED— BANKEUrTCY. 969 
 
 But where the injury is not of a continuing nature, and the 
 damages which flow therefrom, when they accrue, have accrued 
 once for all, then the recovery of judgment in a previous action is, 
 as we have seen, a good bar. Thus, if a man has dug a pit, or 
 made a trench in another's land, and an action has been brought 
 and damages have been recovered for the injury, such recovery of 
 damages is a complete satisfaction for the wrong done in cutting 
 into the plaintiff's land, and no other action is maintainable (m) ; 
 but where a man digs a trench or deepens a ditch in his own land, 
 which has the effect of injuriously diverting water from his neigh- 
 bour's stream, or of diminishing the supply of water to a neighbour's 
 miU, then there is a continuing injury so long as the trench remains 
 open, and the ditch deepened, and the diverted water is allowed to 
 run through it to the injury of the neighbouring proprietor. 
 
 When both landlord and tenant are responsible for the injury, 
 the plaintiff may proceed against either at his election ; but he can 
 have but one satisfaction for the same wrong, and having sued and 
 recovered judgment against one,- he cannot recover against the 
 other (n). 
 
 Effect of the recovery of judgment in actions for the conversion of 
 property. — We have already seen, that by a recovery of judgment in 
 an action for the conversion of property, the plaintiff's right of 
 property in the things converted, is. barred, and the property vests 
 in the defendant in the action (o). The property in the goods is 
 changed by relation from the time of the conversion. It is not, 
 however, the recovery only, but the recovery coupled with the pay- 
 ment .i)f the damages, that changes the property {p). 
 
 Recovery of judgment in rem is no bar to proceedings in per- 
 sonam, and, therefore, a judgment in rem in the Admiralty Court is 
 not pleadable in bar of an action for damages {q). So, conversely, a 
 judgment in personam, e. g. in an action at law for damages, is no 
 bar to a suit' in the Court of Admiralty m re7n. Where there is a 
 remedy both in personam and in rem a person who has resorted to 
 one of the remedies may, if he does not thereby get fully satisfied, 
 resort to the other (r). 
 
 Plea of the lankruptcy of the plaintiff. — By s. 142 of the Common 
 Law Procedure Act, 1852, 15 & 16 Vict. c. 76, it is enacted, that the 
 bankruptcy of the plaintiff in an action shall not be pleaded in bar 
 to such action, unless the assignees shall decline to continue and 
 give security for the costs thereof, upon a judge's order to be 
 
 (m) Clegg v. Oearden, 12 Q. B. 591. Holroyd, J., in Morris v. RoUnson, 3 B. 
 
 \n) HoseweU v. Prior, 2 SaUc. 460 ; 12 & C. 206. 
 Mod. 636. Srent v. Haddon, Cro. Jao. (p) Brimmead v. Ha/ii-ison, L. E., 6 
 
 555. C. P. m. 
 
 (o) Cooper 7. Shepherd, 3 C. B. 272 ; (?) Nelson v.OoucJi, 33 L. J. C. P. 46. 
 
 (r) Yeo V. Tatem, L. R., 3 P. C. C. 696. 
 
970 PLEADINGS IN ACTIONS. [CHAP. XXI. 
 
 obtained for that purpose, within such reasonable time as the judge 
 may order, but the proceedings may be stayed . until such election 
 is made ; and in case the assignees neglect or refuse to continue the 
 action and give such security within the time limited by the order, 
 the defendant may, within eight days after such neglect or refusal, 
 plead the bankruptcy. 
 
 Pleas of tlie Statute of Limitations. — By 21 Jac. 1, c. 16, s. 3, it 
 is enacted, that all actions of trespass quare clausum fregit, all 
 actions of trespass, detinue, trover, and replevin for taking away of 
 goods and cattle, aU actions upon the case, and all actions of 
 assault, menace, battery, wounding, and imprisonment, or any of 
 them, shall be commenced within the time and limitation there- 
 after expressed, and not after ; that is to say, the said actions upon 
 the case other than for slander, and the said actions for trespass, 
 detinue, and replevin for goods or cattle, and the said actions of 
 trespass quare clausum fregit, within six years next aftet the cause 
 of such actions or suit, and not after ; and the said action of tres- 
 pass, of assault, battery, wounding, imprisonment, or any of them, 
 within four years next after the cause of such actions or suit, and 
 not after ; and the said actions upon the case for words within two 
 years next after the words spoken, and not after. But (s. 4) if in 
 any of the said actions judgment be given for the plaintiff, and the 
 same be reversed by error, or a verdict pass for the plaintiff, and 
 upon matter alleged in arrest of judgment the jiidgment be given 
 against the plaintiff, that he take nothing by his plaint or writ, the 
 plaintiffj his heirs, executors, &c., may commence a new action 
 -within a year after such judgment reversed, or given against the 
 plaintiff, and not after. And by 19 & 20 Vict. c. 97, s. 10, absence 
 beyond seas, or imprisonment at the time of the accrual of the 
 cause of action, is no longer to have the effect of extending the 
 period of limitation. This section is retrospective (s). 
 
 Commencement of the period of limitation,. — The time of limita- 
 tion begins to run from the accrual of the cause of action ; and 
 when an act has been done which is lawful in itself, but becomes 
 unlawful only in case it causes damage and injury to another, the 
 time of limitation will ran, not from the period of the doing of the 
 lawful act, but from the time of the accrual of the damage, and the 
 consequent conversion of the act whieh was lawful in its inception 
 into a tort. Thus, where one person is possessed of the surface of 
 land, and another is owner of the subsoil, and the owner of the 
 subsoil excavates therein for minerals, without causing any imme- 
 diate apparent injury to the surface, but damage ultimately ensues, 
 
 (s) ComUl v.. Hudson, 8 E. & B. 429 ; 27 Law J., Q. B. 8. Pardo v. Binqhani, 
 L, K, 4 Oh. App.,.735. .. . . ) -v. ... ./. . 
 
SECT. l.J STATUTES OF LIMITATIONS. 971 
 
 and the surface subsides, the time of limitation will begin to run 
 from -the time when the damage manifested itself, and not from 
 the period of the making of the excavation (if). Wlienever one 
 person does anything or permits anything to be done on his own 
 land which causes injury to his neighbour, and the injuiy is of a 
 continuing natiire, the cause of action, as we have seen, continues, 
 and is renewed, de die in diem, as long as the cause of-the con- 
 tinuing damage is allowed to continue. If a man, by digging and 
 constructing basins and canals on his own land, causes a stream of 
 water to flow against his neighbour's wall, and gradually to u:nder- 
 mine it, so that at last the wall falls, the period of limitation runs 
 from the time of the falling of the wall, and not from the time of 
 the construction of the basins and canals {u). And if a man, by 
 digging on his own land, wrongfully lays open the foundations of 
 his neighbour's wall, and causes them to be gradually weakened by 
 the effect of flowing water, rain, and frost, so that at last the wall 
 falls, the time of limitation runs from the time of the falling of the 
 wall, and not from the time of the excavation of the soil {v). And 
 in aU cases of continuing nuisances and injuries arising from a 
 continuing wrongful act, there is a continuing cause of action (x). 
 Where slanderous words are uttered which create no cause of action 
 unless they are followed by special damage, the period of limi- 
 - tation runs from the time that special damage accrues, and not from 
 the time of the utterance of the words {y). 
 
 "Where an action is brought against a justice of the peace for a 
 false and malicious imprisonment (ante, p. 723), every continuance 
 ol the imprisonment de die in diem is, in point of law, a new 
 imprisonment, and, therefore, the time of limitation runs from the 
 last day of such imprisonment, and not from the time of the issuing 
 of the warrant (z). 
 
 As a general rule, the period of limitation runs from the time 
 of the commission of the wrongful act, and not from the time of the 
 knowledge of that act by the plaintiff", there being no proof of any 
 fraud practised by the defendant in order to conceal that Imowledge 
 from the plaintiff (a). Thus, in actions for negligence or for a 
 breach of duty, the cause of action accrues at the time of the 
 occurrence of the act of negligence or the breach of duty, and not 
 from the period of its discovery by the plaintiff. If,- therefore, an 
 attorney or agent has been guilty of a neglect of duty, and the 
 
 (i) Bononi v. Backhouse, 28 Law J., (x) WMtehousev.FeU,S0La,-wS.,O.F. 
 
 Q. B. 378 ; 3i ib., Q. B. 181. Ld. Wens- .305. 
 
 leydale, Bowbotham v. Wilson, 8 H. L. C. (y) Saunders v. Edma/rds, 1 Sid. 96; see 
 
 359; 30 Law J., Q. B. 965. See Smith v. ante, p. 5. 
 
 ThacTcerah, L. K., 1 0. P. 564. (z) Hardy v. Byle, 9 B. & 0. 608. 
 
 («) GiUm T. Boddingto>i, 'Rj. & M. Massey t. Johiison, 12 East, 68. 
 
 161. («) Granger v. George, 7 D. & E. 730 ; 
 
 (v) Boberts v. Bead, 16 East, 217. 5 B. & 0. 149., 
 
972 1>LEADIXGS IN ACTIONS, [CHAP. XXI- 
 
 injurious consequences thereof do not come to the knowledge of the 
 principal until after the lapse of six years from the occurrence of 
 the wrongful act, the right of action of the principal is barred (6). 
 But in actions of detinue, where the defendant has goods under his 
 charge under an implied contract to re-deUver them on request, and 
 has wrongfully dealt with them without the knowledge of the 
 owner, the period of limitation runs either from the date of such 
 conversion, or, at the option of the owner, from the date of the 
 defendant's broach of duty by refusing to re-deliver on request (c). 
 Extension of the period of limitation in certain cases. — When the 
 action abates by the death of the plaintiff, or is abated without 
 default of the plaintiff by the act of God, and the period of limita- 
 tion has run out before the commencement of a fresh action, 
 the courts have indulged the plaintiff with the liberty of suing out 
 a new writ, so that he did it within a reasonable time. One mode 
 of measuring the time was with reference to the time it would 
 occupy in getting to the place where a new writ was to be obtained. 
 Hence the writ got the name of a writ of journey's accounts. But 
 there was no exact limit of time to govern the court in saying what 
 was a reasonable time in getting the writ, and the question is, 
 whether the action is, under the particular circumstances of the 
 case, brought within a reasonable period after the expiration of the 
 time of limitation (d). 
 
 Equitable pleas and defences. — By 17 & 18 Vict. c. 125, s. 83, it 
 is enacted, that it shall be lawful for every defendant, or for a 
 plaintiff in replevin, in any case in any of the superior courts in 
 which, if judgment were obtained, he would be entitled to relief 
 against such judgment on equitable grounds, to plead the facts 
 which entitle him to such relief by way of defence, and these courts 
 are thereby empowered to receive such defence by way of plea, 
 provided that such plea shaU begin with the words " for defence on 
 equitable grounds," or words to the like effect. Any such matter 
 (s. 84) which, if it arose before or during the time for pleading, 
 would be an answer to the action by way of plea, may, if it arise 
 after the lapse of the period during which it could be pleaded, be 
 set up by way of auditd quereld. The plaintiff may reply (s. 85), 
 in answer to any plea of the defendant, facts which avoid such 
 plea upon equitable grounds ; provided that such replication shall 
 ' begin with the words, " for replication on equitable grounds," or 
 words to the like effect. But it is provided (s. 86), that in case it 
 shall appear to the court, or any judge thereof, that any such 
 
 9\ i^?^,"!^ '''■ Young, 5 B. & C. 265. (d) CurUwis v. Mm-nington, 27 Law J ,' 
 
 (c) WtmnsonY.Veriiy,l,.-R.,6C.'B. Q. B. 439. ' 
 
 206. 
 
SECT. 1.] EQUITABLE PLEAS— JOINDER 01? ISSUE, ETC. 973 
 
 ec[iiitable plea, or equitable replication, cannot be dealt with by a 
 court of law so as to do justice between the parties, it shall be 
 lawful for such court or judge to order the same to be struck out. 
 
 Matters which would entitle the defendant to an unconditional 
 and perpetual injunction in equity to restrain an action in respect 
 thereof, may, under this statute, be pleaded by way of equitable 
 defence ; but if the matters of defence are not such as to entitle the 
 defendant to unconditional relief, they cannot be made the founda- 
 tion of a good equitable plea (e). Where the plaintiff complained 
 of three grievances, one relating to the obstruction of his lights, 
 another relating to the taking away of the support of his building, 
 and a third to the obstruction of his chimneys, and causing them to 
 smoke, and the defendant pleaded by way of equitable defence that 
 the whole of the grievances complained of arose from the pulling 
 down of an ancient house and the building of another messuage on 
 the site of it, and that the acts causing' the grievances complained 
 of were done with the knowledge, consent, and acquiescence of the 
 plaintiff, and upon the faith of his approval of the mode in which 
 they were done, it was held that the plea disclosed a good equitable 
 defence ; but that it was well answered by a replication setting up 
 that the acquiescence and consent upon the faith of which those 
 acts were done were obtained from the plaintiff by the represen- 
 tations of the defendant, that none of the gTievances complained 
 of would take place if the plaintiff would give his consent as 
 alleged (/). 
 
 Joinder of issue. — Either party may plead in answer to the plea 
 or subsequent pleading of his adversary that he joins issue thereon, 
 and such joinder of issue operates as a denial of the substance of 
 the plea or other subseqiient pleading and an issue thereon ; and in 
 all cases where the plaintiff's pleading is in denial of the pleading 
 of the defendant, or some part of it, the plaintiff may add a joinder 
 of 'issue for the defendant (15 & 16 Vict. c. 76, ss. 76—79). The 
 object of this new form of replication, "the plaintiff joins issue on 
 each of the pleas," merely enables a party in a compendious 
 manner to traverse all those allegations in a plea which he could 
 have traversed before ; but such matters as, before the above Act, 
 must have been replied specially, must still be so replied ; and all 
 matters which must have been, pleaded by way of new assignment, 
 must still be so pleaded (g). 
 
 Pleadings construed distributiwly. — Pleas of payment and set- 
 off, and aU other pleadings capable of being construed distributively, 
 are to be taken. distributively ; a;nd if issue is taken thereon, and 
 
 (b) Hyde^ v. Cfraham, Wakleij v. Prog- JiawUm v. WicMiam, 3 De G. & J. 304. 
 gaU, ante, p. 294, ■ (ff) Glover v. Dixon, 9 Exch. 159. 
 
 (/) Vavies v, Manhdl, ante, p. 156. ffuddart v. Bigby, infra. 
 
974 PLEADINGS IN ACTIONS. [OHAP. XXI. 
 
 SO mucli thereof as shall be sufficient answer to part of the causes 
 of action proved shall be found true by a jury, a verdict is to pass 
 for. the defendant in respect of so-much of the causes of action as 
 shaU be answered, and for the plaintiff in respect of so much of the 
 causes of action as shall not be answered Qi). 
 
 New assignments. — "Where the defendant answers what may 
 reasonably be considered the gist of the trespass described in the 
 declaration, it wiU be presumed that the action is carried on only 
 for that which the defendant has thus attempted to justify, unless 
 the plaintiff intimates by a new assignment that the defendant 
 has overlooked a part of the grievances he complains of, or has 
 altogether misapprehended his meaning" 0. Where the defendant 
 has committed several trespasses, either upon the person, goods, or 
 lands of another, some of which are justifiable, and others not, and 
 the action is brought for those trespasses which are not justifiable, 
 but the defendant by his plea answers those only which are justifi- 
 able, the plaintiff should by his replication make a new assign- 
 ment, showing the trespasses for which the plaintiff proceeds (/«). 
 And where the declaration is general, and the subject-matter 
 thereof divisible, and the plea apparently answers the whole cause 
 of action, but in reality answers only a part, the plaintiff must new 
 assign as to the part not really answered. Thus, where the plain- 
 tiff complained that the defendant entered upon the plaintiff's 
 close and cut down one hundred yards of railing, and the defendant 
 pleaded a right of way over the close, and justified the cutting down 
 of the rails, because they obstructed him in the exercise of his right 
 of way, and the plaintiff merely traversed the allegation that the 
 rails were in the highway, and it appeared that some of the rails 
 cut were there, it was held that, upon this issue, both parties must 
 be taken to have agreed that those were the rails in question, and 
 that if the plaintiff meant to go for rails cut down ou'Other parts of 
 his close, he should have so stated by a new assignment (V). 
 
 The object of a new assignment, therefore, is to correct a mis- 
 take occasioned by the generality of the declaration, and is in the 
 nature of a replication to the defendant's plea ; or it may be more 
 properly considered as an explanation of the declaration, setting 
 forth the true ground of complaint, as being different from that 
 which is covered by the plea (m). The 15 & 16 Vict. c. 76, ss. 
 
 (/i) 15 & 16 Vict. c. 76, s. 75. Reg. Saund. 299. Sobertson v. GauntUtt 16 
 
 Gen. HH. Term, 16 Vict., No. 62 ; 1 Ell. M. & W. 297. Huddart v. Sigby, L. R., 
 
 & Bl. App. xiii. Patterson v. Hams, 31 5 Q. B. 139. 
 
 Law J., Q. B. 277. (I) Bracegirdle v. Peacock, 8 Q. B. 186. 
 
 (i) Mon^rivatt Y. Smith, 2 Oamph. 176, (m) Stephens on Pleading, pp. 205, 
 As to new assignment, see the note (o 206, 7th edn. HUison v. Isles, 11 Ad. & 
 Taylor T. Oole, 1 Smith's L. C. IIB, 6th ed. E. 671. Lancashire Waggon Co. V. Fits- 
 Lambert V. Hodgson, 1 Bing. 319. fiugh, 6 H. & N. 502. 
 
 (k) See the notes to Qreene t. Junes, 1 
 
SECT. 2.] NEW ASSIGNMENT. 975 
 
 87, 88, now regulate the pleading of new assignments, and forms 
 of new assignment are given by schedule B. Nos. 55, 56, and 57> 
 to that Act. 
 
 There can be no new assignment for a cause of action not 
 included in the declaration. A new assignment, therefore, of an 
 entirely new cause of action is bad. The object of it is to inform 
 the defendant that there is another cause of action included in the 
 declaration beyond that which the defendant has answered by his 
 plea, and that the plaintiff means to rely upon the last-named 
 cause of action, and not the cause of action to which the plea is 
 pleaded (n). A new assignment admits that the declaration is well 
 answered by the plea. If, therefore, the plaintiff fails to take issue 
 on the plea, but new assigns a distinct substantive trespass, and 
 fails to prove it, the defendant will be entitled to a verdict. Where 
 in trespass the defendant pleaded that the locus in quo was part of 
 a common which had been allotted to him, to which the plaintiff 
 new assigned that the trespass complained of was in another place, 
 and upon its being admitted in the opening of the plaintiff's 
 counsel to the jury that the trespass was in the same place, but 
 that the defendant had no title to it, the chief justice said that ^^'as 
 decisive against the plaintiff^ and that the defendant was entitled 
 to a verdict (o). 
 
 . SECTION II. 
 
 PKOCEEDINGS AND EVIDENCE AT THE TEIAL. 
 
 RigM to begin. — The sixteen judges have made a resolution that 
 the plaintiff shall begin at the trial in all actions for personal 
 injuries, -libel, and slander, although the general issue may not be 
 pleaded, and the affirmative be on the defendant (p). And it is 
 now held that the plaintiff should bring liis own cause of complaint 
 before the court and jury in every case where he has anything to 
 prove, either as to the facts necessary for his obtaining a verdict, or 
 as to the amount of damages to which he conceives the proof of 
 such facts may entitle him (q). 
 
 Under the Common Law Procedure Act, 1854 (17 & 18 Vict, 
 c. 125), s. 18, if counsel announces his intention not to adduce 
 evidence, he cannot afterwards do so (r). 
 
 (n) Sogers r. Spence, 12 CI. & Kn. (jp) Gm-ter v. Jones, 6 C. & P. 64; 1 
 
 719. " ^ jl ,j. jjob. 281. 
 
 (o) Anon, cited 16 East, 86. OaJcUy v. {q) Mercer y.WhaU, 5 Q. B. 458. Tay- 
 
 Davis, ib. 82. Atkinson v. MaUeson, 2 lor on Evidence, §§ 353, 354, 4th ed. 
 1'. K. 172. ('•) ^arby v. Ousdet/, 1 H, & N. 8. 
 
976 PROCEEDINGS AT TRIAL. [CHAP. XXI. 
 
 Proof on the part of the plaintiff. — If a declaration discloses a 
 state of facts upon which an action may be maintained^ althongli 
 there be neither malice nor fraud, the plaintiff is not bound to 
 prove either, though both be alleged, and may recover upon the 
 liability which the facts disclose, though fraud and malice be 
 disproved, just as where a defendant who is charged with doing an 
 act wilfully may be made responsible for the act and ifs con- 
 sequences, whether done wilfully or not (s). 
 
 When affirmative pleas of justification are put upon the record 
 with the general issue, the plaintiff's counsel may, if he pleases, 
 not only prove the facts of the declaration, but also may in the 
 first instance, and before the defendant's case is gone into at all, 
 go into any evidence which tends to destroy the effect of the 
 justification by way of anticipating the defence ; or he may, if he 
 pleases, content himself with proving the fact on the general issue, 
 and then close his case, leaving the defendant to make out his 
 justifications as he can, and afterwards go into evidence, in reply, 
 as to the justifications. But if the plaintiff's counsel, knowing by 
 the pleas what the defence is to be, close their case, and trust to 
 evidence in reply, they are restricted to such evidence as goes 
 exactly to answer the case proved, or attempted to be proved, by 
 the defendant in support of the justifications, and they cannot be 
 allowed to go beyond it {t). 
 
 Where an act of parliament prohibits the doing of a particular 
 act affecting the public, no person has a right of action against 
 another merely because he has done the prohibited act. The 
 plaintiff must, therefore, prove some special damage, some peculiar 
 injury, beyond that which he may be supposed to sustain in 
 common with the rest of the Queen's subjects by an infringement 
 of the law (w). 
 
 Effect of payment of money into court.-^" Formerly it was sup- 
 posed by the profession that by paymerit of money into court in an 
 action of tort the defendant admitted the cause of action sued for, 
 and that as the plaintiff was at liberty to prove any cause of action 
 he pleased, consistent with the declaration, it was the duty of the 
 defendant to take care by the form of his pleading or by obtainipg 
 particulars on summons, that his admission by payment into court 
 was not used to his prejudice ; but of late years this rule has been 
 greatly modified, and it has been held that where in an action of 
 tort the declaration is general and unspecific, the payment of 
 money into couii;, though it admits a cause of action, does not 
 adinit the cause of action sued for, and that the plaintiff must give 
 
 (a) Swivfen v. Ld. Chelmford, 5 H. & (a) Chamherlaine r. Chester and £iv 
 
 N. 920. Icenhcad Rail. Co., I Excli. 877. 
 
 {t)Pierpointv.ShafaridilC.&'P.ii7. 
 
SECT. 2.] PEIMAEY AND SECONDARY EVIDENCE. 977 
 
 evidence qf the cause of action sued for before he can have larger 
 damages than the amount paid into court. On the other hand, if 
 the declaration is specific, so that nothing would be due to the 
 plaintiff from the defendant, unless the defendant admitted the 
 particular claim made by the declaration, the payment of money 
 into court admits the cause of action sued for, and so stated in the 
 declaration. If the breach is single, and the damages entire, then 
 of course, it becomes under such circumstances a mere question of 
 damages ; but if the damages be compourided of several things, 
 although the payment of money into court may, from the form of 
 declaration, admit the particular cause of action sued for, still it 
 may be necessary to prove the cause of action, with a view to the 
 damages" (x). 
 
 Primary and secondary evidence. — "Our ancestors," observes 
 Best, C. J., " were wise in making it a rule of law that in all cases 
 the best evidence that could be had should be produced ; for if the 
 best evidence be kept back, it raises a suspicion that, if produced, 
 it would falsify the secondary evidence on which the party has 
 rested his case." "Where in an action against a wrong-doer for an 
 injury to the reversion, the plaintiff proved that the premises were 
 devised to him, and that the occupier held as tenant to him, the 
 latter fact being established by oral evidence only, though it 
 appeared on cross-examination that he held under a written 
 agreement, the Court of Common Pleas were divided in opinion 
 whether the reversion of the plaintiff had been sufficiently 
 proved {y). 
 
 Where a witness not a party to the cause, and whose answer 
 will affect the rights of others, is asked a question respecting the 
 contents of a written document, the document itself must, in 
 general, be produced, as being the primary and best evidence of 
 what it is, whether the inquiry arise on examination-in-chief, 
 cross-examination, or re-examination, or goes to the credit of the 
 witness (z). In an action for the infringement of copyright in a 
 musical composition, therefore, a witness was not' allowed to be 
 asked, in support of the defendant's plea that the composition in 
 question was not first published in England, whether he had seen 
 printed copies of it for sale in a certain shop in a foreign town, at 
 a date previous to the registration of the copyright in England, no 
 such copies being produced in court, and no proof being given that 
 they could not have been produced {a). But this rule did not of 
 
 (x) Jervis, C.J., Perrin V. MdrM. Rail . (2:) Tlie Queen'i ease, 2 B. & B. 286. 
 Co., 11 0. B. 865. Macdonnell v. Bvans, 11 0. B. 930. Darhy 
 
 (y) Strother v. Barr, 5 Bing. 151. See v. Omeley, 1 H. & JST. 6. 
 Fenn v. Qriffitli, 6 Bing. 533. Augustien (a) Boosey t. Davidson, 13 Q. B. 267, 
 
 T. ChaUis, 1 Exch. 2,79. 
 
 R R R 
 
I 
 
 978 EVIDENCE AT TMAL. [CHAP. XXI. 
 
 course apply to oral statements (6). AbcI a witness may now be 
 cross-examined as to previous statements made by Mm in writing, 
 or reduced into writing, relative to tlie subject-matter of the cause, 
 without such writing being shown him; but if it is intended to 
 contradict him by the writing, his attention must be called to it 
 before it can be used for that purpose (c). To exclude oral 
 evidence respecting the contents of a written document, it should 
 appear either that the document itself would be evidence upon the 
 issue if produced, or to contradict the witness if he answered in 
 a particular way, or that the precise terms and language of the 
 writing itself were necessary to be referred to, in order to answer 
 the question (d). 
 
 A party to the cause is also allowed to affect his own rights by 
 parol admissions respecting the contents of written documents, if he 
 chooses to answer the questions that may be put to him respecting 
 them (e). Thus, where in an action for fraudulent misrepresen- 
 tation as to the price which certain seed would command in 
 London, whereby the plaintiff had been induced to sell seed to the 
 defendant at a lower price than he otherwise would have done, 
 the plaintiff's counsel proposed to ask the defendant, in cross- 
 examination, whether a similar action had not been brought against 
 him in the county court, what was the subject of that action, and 
 what its result, and the defendant's counsel objected to the question 
 on the ground that it related to the contents of a judicial pro- 
 ceeding, the record of which would be the primary and best 
 evidence, it was held that as the defendant was a party to the 
 proceeding, what he said as to the result of it, and the verdict of 
 the jury, would be evidence against him, whether it related to a 
 record or writing or not, and that the question therefore might 
 be put, but that he had the option of answering or not as he 
 pleased (/). 
 
 " Although," observes Holroyd, J., " it be a general rule of law 
 that the best evidence is to be produced, yet that rule is not to be 
 taken literally, for, with respect to evidence of a person holding an 
 office, such as constable, or holding any official character or appoint- 
 ment, it is not necessary to produce the actual appointment, 
 though it be made under sBal. It is sufficient to show," (as against 
 a wrong-doer,) "that the party is actually in the exercise of his 
 office or public employment, and constantly discharging the official 
 or public duties thereof" (g). Evidence, also, of persons being 
 
 (b) Cnmky v. Pa^e, 7 C. & P. 7Se, (/) Henma-ii v. LeiUv, 12 C. B., N. S. 
 
 (c) 17 & 18 Vlot. c. 125, 68. 24, 103, 789; 31 Law J., C. P. 870. 
 SIMdmy. Serjeant, 1 F. & P. 328. (g) Brewster y. SewcOl, 8 B. & Aid. 
 
 (d) Hmman \. Lester, infra. 802. Dexter t. Hayes, 11 Ir. C. L. K. 
 
 (e) Ante, p. 565. 106. 
 
SECT. 2.] NOTICE TO PEODUCE. 979 
 
 trustees or commissioners of turnpikes and excise officers, may be 
 given by proof of their having acted as such, without proof of 
 their appointment (A). 
 
 Further, the adverse party to a suit may have so treated and 
 dealt with a copy of an original document, as to have admitted the 
 truth of the contents of the* copy, and rendered it receivable as 
 primary evidence against him by way of an admission. Thus, a 
 document in the possession of a lord of a manor which he represents 
 to contain a true account of the customs of the manor, would be 
 admissible as primary evidence against him, although it purport to 
 be a copy of the decree of the Court of Chancery (i). So in an 
 action of replevin, where the question was as to the boundary of a 
 certain estate, depositions made by the defendant in a prior suit 
 against him in chancery by a stranger to the present action were 
 held admissible against him, at all events to the extent and for the 
 purpose for which they were so used by him in the former suit (/<;). 
 
 Notice to produce a written document to let in secondary evidence 
 of its contents. — ^Whenever a written instrument which requires to 
 be proved is in the hands of the opposite party, notice to produce 
 it is, generally speaking, necessary, before secondary evidence of its 
 contents can be given. If the document is seen in court at the 
 trial, in the hands of the adverse party or his attorney, notice to 
 produce it at once is aU that is required (t). But it is open to the 
 opposite party to show that it was not in his possession or under 
 his control at the time the notice was served. Where, therefore, 
 the plaintiff, in an action for an excessive distress, proposed to 
 give secondary evidence of the warrant of distress, and the 
 defendant proved that it had been handed over to the Commis- 
 sioners of Excise pursuant to the statute, it was held that secondary 
 evidence of its contents was not admissible (m). 
 
 However, various instances may be mentioned where notice to 
 produce a writing is unnecessary in order to let in secondary 
 evidence of its contents. This is the case where the instrument 
 produced and that to be proved are duplicate originals ; where the 
 instrument to be proved is a notice, such as a notice to quit (n) ; 
 also where, from the nature of the action, the opposite pai-ty must 
 know that he is charged with the possession of the document, as 
 where the action is brought for recovering possession of the instru- 
 ment itself (o). So the contents of a notice affixed to the freehold 
 
 (7i) 3 Geo. 4, B. 126, s. 134; 7 & 8 (m) Ean&) ^.Mitchell, 2 M. & Hob. 
 
 Geo. 4, e. 53, s. 17. 366. 
 
 {i) PiHee V. Woodhouse, 3 Exoh. 616. (n) Doe v. S&merton, 7 Qi B. 68, See 
 
 (Jc) Richaifds v. Morgan, 38 Law J., Q. Doe t. Turfmd; 3 B. & Ad. 890. 
 
 l3. 116. (o) Hw V. Hda, 14 JSast, 274. Scott 
 
 (I) Snetgrove v. Stevens, Car. & M. 508. v. Jones, 4 Taunt. 864. Whitehead vi 
 
 Dwyer t. CoUina, 7 Exch. 639. Seott, 1 M. & Bob. 2. 
 
 B E ft 2 
 
980 EVIDENCE At TRIAL. [CHAP. XXI. 
 
 may be proved by oral testimony, without producing or giving 
 notice to produce the board, &c., itself; as where, in an action for 
 shooting the plaiutiff's dog, a witness was allowed to give oral 
 evidence (to connect the defendant with the trespass) of a notice 
 af&xed to a pole driven into the ground, that "all dogs found 
 trespassing would be shot " (p). But portable notices, not affixed 
 to the freehold, must be produced, where they are relied upon as 
 forming the basis of some contract or arrangement between the 
 parties. Thus, in trover against a carrier, where the question was 
 whether the goods were rightfully detained by the defendant in 
 satisfaction of a general lien, it was held that parol evidence could 
 not be given of the contents of a portable notice hung up in the 
 defendant's office, to the effect that aU goods carried, &c., would be 
 subject to such general lien, but that the notice itself must be 
 produced (q). 
 
 If at the trial, e.g., in an action of libel, the plaintiff produces 
 what- he alleges to be a copy of the libellous document, and the 
 defendant then produces a document which he alleges to be the 
 origiaal, the judge must determine whether it is the original, for if 
 it is, the copy is inadmissible (r). 
 
 Proof of facts resting on hearsay and reputation. — Hearsay 
 evidence or evidence not founded upon the personal knowledge of 
 the witness, _ but upon what he has heard another person say 
 respecting some particular fact, is generally speaking inadmissible. 
 But the declarations or statements of deceased persons respecting 
 facts and circumstances, which may be presumed to have been 
 within their own knowledge, are receivable in evidence in certain 
 cases in proof of matters of common reputation or notoriety, and 
 of local and personal or family interest. In cases of general rights 
 depending upon immemorial usage, also (ante, pp. 112, 220 — 225), 
 living witnesses can only speak of their own knowledge to what 
 has passed in their own time, and therefore to supply the necessary- 
 evidence the law receives the declarations or statements of persons 
 who are dead. But such evidence is admissible only to prove a 
 public right in which all the Queen's subjects are interested. If 
 the right is a mere private prescriptive, right, it is inadmissible. 
 When all the inhabitants or tenants of a manor, or all the inhabi- 
 tants of a particular district are interested {ante, p. 101 c^ seq.), the 
 right is of a public nature, and may be supported by hearsay 
 evidence of reputation. Thus the declarations of deceased copy- 
 holders are admissible to prove a right of free warren claimed over 
 the whole [manor (s). So evidence of reputation is admissible to 
 
 (p) Sarthohmw v. Stephens, 8 C. & P. (r) BoyU v. Wiseman, H Exoli. 367. 
 
 i\ T rr J. mvT ,L,,T .», , W Cwnanon (Earl) v. Villehois, 13 
 
 (?) Jonea v. Tarkton, 9 M. & W. 676. M. & W. 332 ; 14 Law J,, Exch. 233. 
 
SEOT. 2,] HEARSAY — ENTRIES BY DECEASED PERSONS. 981 
 
 show by whom a certain bridge is repairable ratione tenurce, for 
 that concerns every one who passes along the highway, and all the 
 ratepayers of the county (i). But where a certain number only of 
 the tenants of a manor claim separate prescriptive rights of common 
 over the lord's waste (a7iie, pp. 105 — 109), depending on each 
 separate prescription, these rights are not of a public character, 
 although .there be many of them, and they cannot consequently 
 be supported by hearsay evidence of reputation (it). Traditionary 
 reputation is, for the same reasons, evidence of boundary between 
 two parishes or manors (x), but not of the boundary between two 
 estates (y). When the statements and declarations of deceased 
 persons are sought to be given in evidence respecting matters of 
 local interest, it should be shown that such deceased persons were 
 conversant with the locality (z). When the right claimed is of a 
 more general nature, such as a right of highway, or of ferry, in 
 which all persons are interested, evidence of what any deceased 
 person has been heard to' say respecting the right is receivable, but ■ 
 it would be almost worthless unless it comes from some one having 
 good means of knowledge (a). And the declaration or statement 
 of a deceased person with regard to a particular fact which would 
 support or negative the right is inadmissible. Thus, the ancient 
 answers of conventionary tenants of a manor stating the rights of 
 the lord, are admissible even against the freeholders of the manor ; 
 but if they state a fact only, eg., that the commons of the manor 
 belong to the tenants without stint on payment of — I per annum, 
 they are not admissible (&). 
 
 Maps, &c., used by deceased stewards of a manor, stand on the 
 same footing as declarations, but they are only admissible for the 
 purposes for which they have been used. A map, therefore, used 
 only for the purpose of defining the copyholds of a manor, would 
 not be evidence as a declaration as to the existence of a highway 
 marked on it (c). 
 
 Entries of deceased ^persons against their interest, made in books, 
 accounts, &c., are also admissible. Thus, where the right to the 
 soil is in question, entries made by the deceased steward of a former 
 owner through whom the plaintiff claims title, charging himself 
 with the receipt of money for trespasses committed on the locus in 
 quo are admissible {d). And when the book in which the entry is 
 
 it) Beci. V. Bedfordshire, i Ell. & Bl. (a) Parke, B., Crease v. BmreU, 1 Or. 
 
 535 M. & B. 929. Pirn v. Curell, 6 M. & W. 
 
 (u) Dunraven {Lord) v. LUwMyn, 15 234. 
 
 Q B 809 See Warrich v. Queen's VoUege, (h) Crease v. Barrett, supra. 
 
 l! e!, 10 Eq. Ca. 105 ; 6 Ch. App. 716. (c) Pm v. Fulcher, 1 Ell. & Ell. 111. 
 
 Ix) NiehoUs y. Parher, 14 East, 331, n. (d) Ba/rry v. Beddington, 4 T. K. 514. 
 
 iy) Clothier v. Chapman, ib. Doe V. Stacey, post, p. 986. 
 
 (z) Weeks V. ^rke, 1 M, & S. 689, 
 
982 . EVIDENCE AT TKIAL. [CHAP. XXI. 
 
 found is an ancient' book, and conies from the proper custody, it 
 is not necessary to prove the handwriting of the party who made 
 the entry (e). But entries in a deceased steward's hook made in 
 his favour, and not connected with other entries made against 
 him, are not evidence of the facts mentioned in such entries (/), 
 Where there are entries in an account-book charging and dis- 
 charging the person making them, both sides of the account may 
 be looked at ; and it is no objection to the reception of an account 
 containing items of charge and discharge, that the balance appears 
 to be in favour of the deceased person making the entries (g). 
 
 Entries made iy deceased persons in the exercise of their duties 
 are also admissible. Thus, to disprove a lien in an action of trover, 
 the entry of a tender and refusal of the amount claimed as lien, 
 made by a deceased clerk of the plaintiff's attorney in a day-book 
 kept by him for the purpose of minuting his daily transactions, is ' 
 admissible (Ji). But where, in an action of deceit, the defendant 
 offered in evidence a book purporting to be made up from slips of 
 paper on which the daily transactions of his business as a pawn- 
 broker were entered, but it appeared that it was kept privately by 
 him at his own house, and that none of his clerks had access to it, 
 the evidence was rejected (z). 
 
 Where the entry is admitted in evidence as being against the 
 interest of the party making it, it carries with it the whole state- 
 ment ; but if the entry is merely an act done in the course of a 
 man's duty, then it is confined to matters within that duty (h). 
 Thus where, according to the practice of a sheriff's office, the 
 officer making an arrest was required to make" and did make a 
 return signed by him of the arrest, and of the time and place where 
 it was made, and after his death this return was offered in evidence, 
 it was held that it was evidence of the fact of the arrest and 
 perhaps also of the time when, but certainly not of the place where, 
 it was made, and per Denman, C, J., " whatever effect may be due 
 to an entry made in the course of any of6.ce reporting facts neces- 
 sary to the performance of a duty, the statement of other circum- 
 stances, however naturally they may be thought to find a place in 
 the narrative, is no proof of those circumstances " (Z). 
 
 Statements and declarations accompanying an act are admissible 
 in evidence as part of the res gesta to show the real nature and 
 character of the transaction. Thus, the cries of a mob during a 
 riot are admissible in evidence to show the object and intentions' of 
 
 (e) Wynne v. TyrwUt, 4 B. & Aid. Qi) Mwrlcs v. Lahee, 3 B. N. 0. 419. 
 
 h\ ir -vt ™r < ^ , ,,, <*) ■'^'»«^- ^<"^«. 2 C. & K. 719. 
 
 ■^r ^^Jnlir ^- ^<'^fo^^ {Mwrgnis), 4 (h) Pollock, C.B., in Per(Aval v. Nanson, 
 
 y.&C.284. yBsch. 3. 
 
 (g) BuUery Michel, 2 Pr. 399. Rowe (l) Ohomlen t. Bmaiconi, 1 C. M. & 
 
 T. Srenton 3 M. & Ky, 268, T!.- 347. • . "" 
 
SECT. 2.] STATEMENTS ACCOMPANYING AN ACT. 983 
 
 the rioters, and so are the cries and exclamations of a person 
 injured uttered at the time of an alleged assault (m). So the 
 exclamations of bystanders when an accident occurs, and the 
 conduct of a particular person is in question, 'are admissible in 
 evidence, as part of the res gesta. They may be the result of 
 prejudice or passion, but they are admissible, and the jury must 
 judge what reliance may be placed upon them. A letter written 
 by the plaintiff himself on the day a certain transaction toolf 
 place, making certain inquiries and directing certain things to be 
 done, which were done in obedience to the letter, has been held 
 admissible in evidence on the part of the plaintiff himself in 
 support of his own case, to show the nature and character of the 
 transaction in which he was engaged (n). So where a dressing- 
 case, the property of the defendant's sister-in-law, had been stolen 
 from the defendant's house, and suspicion fell on the plaintiff, and 
 a policeman was sent for, who, on hearing the facts stated by the 
 sister-in-law in the presence of the plaintiff, said, "Do you give 
 her (the plaintiff) into custody ? " and the sister-in-law replied, 
 " I will go and ask my brother-in-law " (the defendant), and went 
 out and then returned, it was held that what she said when she 
 came back was admissible in evidence against the defendant as part 
 of the res gesta (o). 
 
 Whenever a wrongful act forming the subject-matter of an 
 action has been done by an agent, bailiff, or servant acting in the 
 ordinary course of his employment, or in obedience to the express 
 directions of his employer or principal, what he says in the course 
 of the transaction is evidence against those he represents. In an 
 action for false imprisonment, therefore, what the person into whose 
 custody the defendant commits the plaintiff says, is admissible in 
 evidence against the defendant (p). But in an action of detinue 
 against a pawnbroker, where the only evidence of the goods having 
 come to the defendant's hand was a declaration by the pawnbroker's 
 servant that it was a hard case, for his master had advanced 200Z. 
 upon them at iive per cent., it was held that such a declaration was 
 inadmissible, for it was not an ordinary pawnbroking transaction, 
 but a loan by the defendant as by any other person (g). 
 
 Declarations by one of several tort feasors, in such actions as 
 for negligence, where no common motive or object can exist, are 
 evidence against himself alone, unless they are made in the 
 presence and hearing of the others (r) ; but if several co-defendants 
 be shown by other evidence to have combined together for a 
 
 (m) Thompson v. Trevanion, Skin. 402. (p) Powdl v. Eodgetts, 2 C. & P. 432. 
 
 (m) MUne v. Leisler, 7 H. & N. 796 ; 31 (q) Oa/rth r. Hovia/rd, 8 Bingh. 453. 
 
 Law J., Exch. 257. {r) Dawiek v. Potter, M. & M. 503. 
 (o) Hmrm.Di^num, 29 Ij. J-, Exch. 23, 
 
984 EVIDENCE AT TRIAL. [CHAP. XXI. 
 
 common object, what each says as to the motives and circumstances 
 of the trespass, becomes admissible against the other (s). 
 
 When the adverse party in a suit is estopped from giving evidence 
 to contradict his own statements and representations to the plaintiff . 
 ■ — Where one person by his words or conduct wilfully induces 
 another to believe in the existence of a certain state of things, and 
 induces him to act on that belief, or to alter his own previous 
 position, the former is concluded from averring against the latter a 
 different state of things as existing at the same time (t). "Ey the 
 term ' wilfully,' " observes Parke, B., " we must understand, if not 
 that the party represents that to be true which he knows to Jbe 
 untrue, at least that he means his representation to be acted upon, 
 and that it is acted upon accordingly ; and if, whatever a man's 
 real intention may be, he so conducts himself that a reasonable man 
 would take the representation to be true, and believe that it was 
 meant that he should act upon it, and he did act upon it as true, 
 the party making the representation would be equally precluded 
 from contesting its truth " (u). 
 
 Where an action was brought for the conversion of a policy of 
 insurance, and the plaintiff proved that he had given instructions 
 to the defendant to effect a policy for him, and gave in evidence 
 a letter from the defendant to the plaintiff stating that he had 
 effected the policy, Lord Mansfield refused to allow the defendant 
 to contradict his own representation, and show that no policy had 
 been effected, and held him liable as an insurer for the amount 
 that would have been recoverable by the plaintiff on the policy if it 
 had been duly effected (x). 
 
 Wherever, indeed, a man has made a false assertion calculated 
 to lead others to act upon it, and they have done so to their 
 prejudice, he is forbidden, as against them, to deny that assertion. 
 Wherever, also, he has led others into the belief of a certain state of 
 facts by conduct of culpable neglect, calculated to have that result, 
 and they have acted on that belief to their prejudice, he wHl not 
 be heard afterwards, as against such persons, to show that that state 
 of facts did not exist. In short, a man is not permitted, or at 
 liberty, to charge the consequences of his own fault on others, and 
 complain of that which he has himself brought about (y). But the 
 ■neglect must be in the transaction itself, and be the proximate 
 cause of the injury sustained, and must not be the neglect of some 
 
 (s) Lord Ellenborough, C.J., in R. v. Haines v. E, Ind. Co., 11 Moored P.O. 0, 
 
 HardwkTce, 11 East, 584. 57. 
 
 (t) Pickard v. Sears, 6 Ad. & E. 474. (x) Harding v. Carter, Part on Insur- 
 
 Piggott V. Stratton, 29 Law J., Ch. 9. ance, 5. 
 
 M'Oimce V. Lond. and North-West. Rait. (y) Swan v. North Brit. AusW. Co., 31 
 
 Co., 34 Law J., Excli. 39. Law J., Exch. 436. 
 
 («) Freeman v, CoQhe, 2 Exoh, 633, 
 
SECT. 2.] MA.NOEUIi CUSTOMS— TITLE, 985 
 
 duty owing to third persons, witli whom those seeking to set up the 
 estoppel are not privy (2). 
 
 Thus the principal whose negligence has enabled hi? agent to 
 cheat a third person acting with ordinary caution, is universally 
 estopped from denying the authority of the agent. A retired 
 partner, who has given no notice of dissolution to a customer, is 
 estopped from denying the authority of the continuing partner to 
 bind him with that customer. A master who has accredited a 
 servant to a tradesman to order goods in his name, and has recalled 
 the authority from the servant without giving notice to the 
 tradesman, is estopped from denying the authority of the servant 
 to bind him with such tradesman. The same principle applies to 
 instruments under seal. But the party who claims the benefit of 
 this doctrine of estoppel, must - show that he has acted in the 
 transaction in which he was deceived with ordinary caution {a). 
 So a company, by entering the name of a shareholder on their register 
 under a forged or invalid transfer, represents that the person so 
 entered is entitled to transfer the shares to a third person, and is 
 estopped from denying it ; and if the real holder's name is restored 
 to the register, such third, person is entitled to sue the company, 
 and to recover the value of the shares at the time they first refused 
 to recognise him as shareholder, with interest (b). 
 
 Uvidence of manorial customs. — Proof of entries on the rolls of 
 a manor court are admissible in evidence to prove manorial cus- 
 toms (c). A presentment in a manor court, setting forth the bounds 
 of a manor, is likewise evidence of such bounds, although some 
 portion of the document be cut off, if there is no reason to suppose 
 that that part contains any evidence to the contrary of the part 
 produced. When an ancient manor-book is offered in evidence, it 
 must be proved that it comes from the proper custody {d). 
 
 Evidence of title and seizin may be proved by proof of the 
 pernancy of the rents and profits of land, and of the exercise of acts 
 of ownership over land, and the exercise of acts of ownership may 
 be established by production of expired and ancient leases, or 
 counterparts of leases, executed by deceased persons or their 
 deceased lessees (e) ; and declarations of deceased occupiers of land, 
 as to the parties under whom they held, are admissible in evidence 
 to show who was the owner of the inheritance in their time (/). 
 
 (3) Blackburn, J.,J5. 32 ; ih. 277. (c) Damerell v. Protheroe, 10 Q. B 20 
 
 (a) Brie, O.J., Swan, Exparte, 30 Law (d) Evans r. Sees, 10 Ad. & E 151 
 
 J., C. P. 318. _ _ (e) Doe y. J>ulman, 3 q. B. 622. And 
 
 (6) Re BaUa and San Francisco Sail. see, as to land-tax assessments bein? evi 
 
 Co., L. K., 3 Q. B. 584 ; 37 Law J., Q. B. dence of seizin, Doe t. Arkm-iqU 2 AA 
 
 176. HoA-t T. Frontino <Si Bolivia Gold & E. 182. ' ' 
 
 Mining Co., L. K.j 5 Exoh. 111. See Re (/) Peaceable v. Watson, 4 Taunt 16 
 
 London <i: Provincial Telegraph Co. h. 3.. Doe y. Coulihred, 7 Ad, & 'K 235 ' ' 
 '9 Eq. Ca. 663. 
 
986 PEOCEEDINGS AT TRIAL. [CHAP. XXI. 
 
 Entries by a deceased agent of the plaintiff charging himself with 
 the" receipt of money as rent are admissible for the same purpose, 
 although the defendant does not claim through the person so 
 proved to have paid rent {g). 
 
 Amendment of variances between the declaration of the cause of 
 action and the proof adduced in support of it. — By 3 & 4 Wm. 4, 
 c. 42, s. 2.3, it is enacted, that any court of record in civil 
 actions, or any judge at nisi prius, may cause the record, writ, or 
 document on which any trial may "he pending in a civil action, 
 where any variance shall appear between the proof and the recital 
 on the record, &;c., of any contract, custom, prescription, name, or 
 other matter, in any particular in the judgment of such court or 
 judge not materialto the merits of the cause, and by which variance 
 the opposite party cannot have been prejudiced in the conduct of 
 his action or defence, to be forthwith amended, on such terms as to 
 payment of costs or postponing the trial as the court or a judge 
 shall think reasonable ; and in case such variance shaU be in some 
 particular in the judgment of such court or judge not material to 
 the merits, but such as that the opposite party may have been 
 prejudiced thereby in the conduct of his .action or defence, then the 
 same may be amended on the payment of costs to the other party, 
 and withdrawing the record and postponing the trial, as such court 
 or judge shall think reasonable. The judge may, however, avoid 
 (s. 24) the responsibility of deciding, by directing the jury to find 
 the facts according to the evidence, and leave the question of the 
 materiality of the evidence for the consideration of the court above. 
 
 In actions for libel and slander, the judge had power under this 
 statute, if there was a variance between the libel or slander charged 
 in the declaration and the writing adduced in evidence, or the 
 words proved to have been uttered, to amend the variance, if the 
 amendment did not create a new and different cause of action (h). 
 
 By the Common Law Procedure Acts, 15 & 16 Vict. c. 76, 
 s. 222, 17 & 18 Vict. c. 125, s. 96, and 23 & 24 Vict. c. 126, s. 36, 
 it is now further enacted, that it shall be lawful for the superior 
 courts of common law, and every judge thereof, and any judge 
 sitting at nisi prius, at all times to amend all defects and errors in 
 any proceedings in civil causes, whether there is anything in 
 writing to amend by or not, and whether the defect or error be that 
 of the party applying to amend or not ; and all such amendments 
 may be made with or without costs, and upon such terms as to the 
 court or judge may seem fit, and all such amendments as may be 
 necessary for the purpose of determining in the existing suit the 
 
 g) Doe V. Staeey, 6 C. & P. 139. 564. Southee v. Benm/, 1 Exch. 196. 
 
 Qi) Smith V. KnoweUen, 2 M. & Gr. Pater v. Baker, 3 0. B, 854, 
 
SECT. 2.] AMENDMENT. 987 
 
 real question in controversy between the parties, shall be so made 
 if duly applied for. 
 
 Under these statutes, where in a declaration for libel the 
 substance only of the libel was set out, an amendment was allowed 
 by the insertion of the actual letter verbatim in which the libel 
 was contained, with the words "meaning thereby" immediately 
 preceding the statement of the substance of the libel in the decla- 
 ration (i). So in an action for a false representation as to the 
 takings of a public-house, an amendment that such takings were 
 made chiefly over the counter, and not by out-door business, was 
 allowed (Je). So, where the question in dispute was to whom the 
 freehold belonged, a count in trespass has been amended by turning 
 it into a count for an injury to the plaintiff's reversion (Z). So a 
 statute omitted in the margin of a plea of not guilty by statute has 
 been allowed to be added (m). And to a declaration for knowingly 
 keeping a fierce and mischievous dog, an amendment by the 
 addition of the words " and accustomed to bite mankind," has been 
 allowed (n). 
 
 The power of amendment, however, given by these statutes is 
 not confined to the amendment of variances, but enables the judge 
 to amend by adding fresh plaintiffs in an action of ejectment (o), or 
 a plea necessary for the trial of the substantial question between 
 the parties, or to strike out a count, where by an inadvertence no 
 issue has been joined thereon (jp). Thus, in an action for injuries 
 sustained by the negligent driving of the defendant, a plea that the 
 person driving was not at the time of the accident in the employ 
 of the defendant as his servant has been allowed to be added (§■). 
 Whether or not the proposed amendment is necessary for the 
 purpose of determining the real question in controversy between 
 the parties is a' matter to be decided by the judge (r), but no 
 amendment ought to be made which affords reasonable grounds of 
 demurrer (s), or which alters the cause of action set forth on the 
 face of the declaration into another and a different cause of action (t), 
 unless it is manifestly necessary to determine the real question 
 which both parties came to try (lo). Thus, an action for money 
 lent may be altered into an action for a false representation of 
 authority, where that is the real cause of action (x). But in an 
 
 U) Saunders v. Bate, 1 H. & N. 402. (?) MitcheU v. Crassweller, 13 0. B. 
 
 (V) Soles V. Davis, 4 H. & N. 484. 239. 
 
 (l) May\. FootTier, 5 Ell. & Bl. 595. (r) WOkin v. Heed, 15 C. B. 205; 23 
 
 (m) Edmwds v. Hodges, 15 C. B. 477. Law J., C. P. 193. 
 
 (n) Worth v. GiUing, L. K., 2 C. P. 1. (s) Martyn v. WilUmns, 1 H. & N. 
 
 (o) Blahe v. Done, 7 H. & N. 465 ; 31 817. 
 
 Law J., Exch. 100.; but not a fresli de- (t) BradwoHh t. Foshww, 10 W. B. 760. 
 
 fendant, Oarrard t. Qvuhdei, 11 C. B., {u) May v. Footner, supra. 
 
 N. S. 616 ; 31 Law J., 0. P. 270. (x) Richwrdson v. WUUwmson, ante, p. 
 
 (jp) Berresford v. Geddes, L. K., 2 0. P. 854. 
 385. 
 
988 ADMISSIONS— ILLNESS OF WITNESS. [CHAP. XXI. 
 
 action for fraudulent misrepresentation as to the defendant's reason 
 for dismissing his clerk, in which it appeared that the clerk had as 
 a fact been guilty of dishonesty while in the defendant's service, 
 but that he was not dismissed for that reason, an amendment to 
 the effect that the defendant fraudulently omitted to mention the 
 fact of the clerk's dishonesty was disallowed, the question to be 
 tried on the declaration as it stood being, whether the defendant 
 assigned the right reason for dismissing him {y). Nor will a count 
 in trespass or trover by one tenant in common against another be 
 allowed to be altered into a count for an account under 4 Anne, 
 c. 16, s. 27 {z). 
 
 Admissions of liahility. — Admission of parties under a misap- 
 prehension of the responsibility which the law would cast upon 
 them, is not such an admission as can be used with effect against 
 them (a). "When a man, to prevent litigation, and by way of com- 
 promise, expresses a willingness to pay a sum of money, such 
 conduct does not fairly raise an admission of such a liability as 
 will make him answerable in law. Statements made to purchase 
 peace and stave off litigation do not necessarily evince a conscious- 
 ness of liability (&). 
 
 Illness of witness. — The deposition or examination of a witness 
 on interrogatories, unable to attend a trial from' " permanent " 
 sickness, is made admissible by 1 W. 4, c. 22, s. 10, if the judge is 
 satisfied by such evidence as he shall think fit of the sickness, and 
 it is only necessary that the sickness shall be so far permanent as 
 to prevent the witness being able to attend within any reasonable 
 time (c). 
 
 {y) WUhin y. Seed, supra. house, 3 C. & P. 321. 
 
 (z) Jacobs T. Sewa/rd, L. R., 5 Engl. & (6) BuU. N. P. 236 b, 7th ed. 
 
 Ir. App. 464. (c) Beaufort. (Diike of) \. Crmvshay, 
 
 (a) Ld. Tenterden, Bradley v. Water- L. E., 1 C. P. 699: 
 
98^ 
 
 CHAPTER XXII. 
 
 OP THE DAMAGES ANB COSTS EECOVEKABLE IN ACTIONS 
 EX DELICTO. 
 
 Section I. — Of damages recoverable in 
 actions ex delicto. — AsBessment of da- 
 mages in actions ex delicto — ^Wheu 
 special and extraordinary damages are 
 recoverable as the natural or necessary 
 consequences of the wrongful act — 
 Damages too remote, and not naturally 
 resulting from the wrong done — Ex- 
 pense of obtaining legal advice not 
 recoverable — Costs of previous legal 
 proceedings when recoverable — Da- 
 mages which the plaintiff has become 
 liable to pay through the default of the 
 defendant — Prospective damages — Ex- 
 emplary and vindictive damages — Evi- 
 dence in aggravation and mitigation of 
 damages — Recovery of damages from 
 one of several co-trespassers — Damages 
 when the plaintiff has insured against 
 loss — Double and treble damages — 
 New trial on the ground of excessive 
 or small damages — Quashing of inquisi- 
 tions of damages. 
 
 Section II. — Recovery of costs in actions 
 ex delicto. — Award of costs to the suc- 
 cessful party — Costs of pleas puis dar- 
 rein continuance, on stay of proceedings, 
 
 arrest of judgment, &o. — When the 
 court has no jurisdiction it has no 
 power to award costs — Effect on costs 
 of withdrawing a juror — Costs in ac- 
 tions of slander and libel — When the 
 certificate of a judge or presiding 
 ofiioer is necessary to enable the plain- 
 tiff to recover costs — Certificate that 
 the action was brought to try a right — 
 County court acts depriving a plaintiff 
 of ,his costs — Certificate for costs, and 
 rule, or order for costs, under these 
 statutes — Costs on references — Certifi- 
 cate for full costs in cases of wilful and 
 malicious trespass — Full costs after 
 notice not to trespass — Costs in actions 
 for wilful and malicious grievances — 
 Costs in actions against justices, con- 
 stables, and others, in respect of things 
 done under statutory powers — Costs in 
 actions against executors — In actions 
 upon judgments — New trials, appeals, 
 removal by certiorari, prohibition, in- 
 dictment, mandamus, and injunction 
 — Double costs — Taxation of costs — 
 Security for costs — Costs in the county 
 court. 
 
 SECTION" 1; 
 
 M' DAMAGES EECOVEKABLE IN ACTIONS EX DELICTO. 
 
 Of the assessment of damages in actions em delicto. — In actions of 
 tort a greater latitude is allowed by the court to a jury in the 
 assessment of damages than is allowed in actions of contract (a). 
 " The damages must be excessive and outrageous to warrant a new 
 trial " (h) ; " for it is not to be expected that a jiiry will measure 
 their verdict so nicely as in cases of contract " (c). Therefore, 
 where some printer's devils, who had been unlawfully imprisoned 
 
 (a) De Grey, C.J., Sluurpc v. Brice, 2 
 W. B1.-942. 
 (6) HwkU v. Monmj, 2 Wils. 205. 
 
 (c) Cresswell, J., WiUiama v. Currie, 1 
 C. B. 848. Fabrigas v. Mostyn, 2 W. Bl 
 928. ./ > . 
 
990 DAMAGES, [chap. XXII. ' 
 
 for six hours, brought their several actions, and the jury gave each 
 of them 300^. damages, the court declined to meddle with the 
 verdict, although it was proved that each of the plaintiffs had been 
 civilly treated and fed upon beef-steaks and porter during the 
 period of their imprisonment (d). " If the jiiry," observes Pratt, C. J., 
 " had been confined by their oath to consider the mere personal 
 injury only, perhaps 201. damages would have been thought suffi- 
 cient; but the smaE. injury done to the plaintiff, or the inconsider- 
 ableness of his station and rank in life did not appear to the jury 
 in that striking light in which the great point of law touching the 
 liberty of the subject appeared to them at the trial." 
 
 The court will not in general interfere with the damages unless 
 the finding has proceeded from some mistake ; or the jury have acted 
 from some sinister feeling, and the judge is dissatisfied with their 
 verdict (e). If the jury give the plaintiff more damages than by 
 his own showing he ought to recover (/), or if there be several 
 coiints in the declaration, and a verdict is entered generally on all 
 the counts, and entire damages are given, and one count is bad, 
 the damages so assessed cannot be recovered, and a venire de novo 
 must be awarded (g). If an action of slander be brought for 
 words spoken at different times, and the action will not lie for the 
 words spoken at one time, but will lie for words spoken at another, 
 and a verdict is found for aU the words, and entire damages are 
 assessed, no judgment will be given (h) ; but when words are all 
 spoken at one time, and some of them are actionable and some not, 
 and damages are assessed generally, they shaU be intended to be 
 given only for those words which are actionable, and it shall be 
 presumed that the others were inserted only for aggravation (i). 
 
 Damages recoverable in particular actions. — The damages 
 recoverable in particular actions have already been in most cases 
 considered under the headings of those actions (J). 
 
 Where a person has been induced, by false accounts of the 
 transactions and profits of a joint-stock company, to buy shares 
 therein, and give for them a sum far beyond their real value, the 
 measure of damages is the difference between the actual value of 
 the shares at the time of the purchase, and the fictitious value 
 imparted to them by the false representation (Jc), 
 
 (d) jHmcHc v. Money, 2 Wils. 205i (i) Penson v. Gooday, ib. 327. ThaxUe 
 
 (e) Watlimgton v. Wood, C. P. Nov. x. Smith, Cro. Eliz. 788i Berkdey v. Bad 
 8th, 1860. Briiton v. S. W. Bail, Co., i1 of Pemhrohe, Moore, 706. Broughton'i 
 Law J., Exch. 355 ; see post, Kew case, ib. 708. 
 
 Trials. (j) As to datoages in an action by a 
 
 (/) HanibleMnv.Veerei 2 Wms; Saund. judgment-creditor against a sheriff for an 
 
 170. escape, see Hemming v. Bale, 29 Law J., 
 
 (g) Orant v. Asth, Doug. 730. ieacJi C. P. 137 ; but imprisonment for debt is 
 
 V. Thomas, 2 M. & W. 427. How abolishedi 
 
 {h) Fopham, S., Brooke v. Clarke, Cro. (i) Davidson V, fulloth, S Macq. 783 ! 
 
 Eliz. 328. Jaminy. Tamir, Cro. Car; 237. ante, p. 838; 
 
SECT. 1.] NATURALLY EESULTINfi FEOM THE WRONG. 991 
 
 As against a manifest -wrong-doer a jury is, as we have seen, 
 justified in making the strongest presumptions, so that if an article 
 , of value, such as a diamond necklace, has been taken away, and 
 part of it is traced to the possession of the defendant, the jury may 
 reasonably infer that the whole thing has come into his hands, and 
 give damages accordingly (J). Where the plaintiff, by his own 
 dealings and acts, renders the nature of his interest in the pro- 
 perty and the extent of the damages altogether doubtful, he may 
 vacate his whole claim, or destroy his right to more than nominal 
 damages (m). 
 
 Special .and extraordinary damages. — All damages which 
 ordinarily and in the natural course of things might fairly be 
 expected to result, and have resulted, from the commission of the 
 wrongful act, are recoverable, provided they are jclaimed by the 
 plaintiif in his declaration (ra). If by reason of the defendant's 
 negligence and breach of duty the property of the plaintiff has 
 become deteriorated and reduced in value by rain, storm, or frost, 
 or any destructive agencies of ordinary occurrence, the plaintiff 
 will be entitled to recover all the damage he has sustained 
 thereby (o). All persons are responsible for all the natural con- 
 sequences resulting from acts done by them in violation of the 
 rights of others. The jury are entitled to look into all the circum- 
 stances and at the conduct of both parties, and see where the 
 blame is, and what ought to be the compensation according to 
 the way the parties have conducted themselves {p). Where the 
 plaintiff has been compelled to pay money to release himself from 
 the injurious consequences naturally resulting from the wrongful 
 act of the defendant, such money is recoverable from the defendant 
 as part of the damages. See ante, p. 609. 
 
 Whenever one person commands' or authorises an act to be 
 done by another, he is responsible for all that the other does in the 
 necessary execution of his authority. If, therefore, an assault and 
 imprisonment of the plaintiff are the necessary or probable con- 
 sequence of orders given by the defendant, the defendant will be 
 responsible in damages for such assault and imprisonment, although 
 he did not directly order it, or contemplate the possibility of its 
 occurrence (g'). 
 
 In an action for breaking and entering the plaintiff's dwelling- 
 house, and assaulting and beating him, Lord Ellenborough allowed 
 
 {I) MoHimef V. Cradick, antet p. 375. (o) Smeed v. Poordi 28 Law J., Qi Bi 
 
 (m) Antet p. 377. Prmgle t. Taylovi 178. 
 
 2 Taunt; 150; (p) Dams v. JHolrlh-West. Sail. Oti.i 7 
 
 (n) Pollock, C.B.J Eigbp v. Mewitt, 5 W. E. 105. Collard t. S. E. Rait. Go., 1 
 
 Exch. 242. Warhman v. Qt. North. Bail. fi. & N. 79. 
 
 Co., 32 Law J., Q. B. 79. GilberUon t. (g) Qlynn v. Houston, 2 M. & Gr; 337. 
 Jtichardson, 5 G. B. 502. 
 
d92 ftAMAGtES. [chap. XXll. 
 
 the plaintiff to give in evidence that his wife was so temfied by 
 the conduct of the defendant that she was immediately taken ill 
 and died soon afterwards, not as a substantive ground of damage, 
 but for the purpose of showing how outrageous and violent had 
 been the conduct of the defendant (r). "But I entertain con- 
 siderable doubt," observes Pollock, C.B., " whether a person who 
 is guilty of negligence is responsible for all the consequences 
 which may under any circumstances arise, and in respect of 
 mischief which could by no possibility have been foreseen, and 
 which no reasonable person would have anticipated " (s). 
 
 Damages too remote, and not naturally resulting from the wrong 
 done (f). — ^Where a passenger on board ship was assaulted and im- 
 prisoned for one night by the captain, and in consequence thereof 
 took the first opportunity of leaving the ship, and paid 100^. for 
 his passage homo in another vessel, it was held that, in .order to 
 recover the 1001. as part of the damages for the assault and 
 imprisonment, it was necessary for the plaintiff to prove that there 
 was fair and reasonable ground for fearing a renewal of the ill- 
 treatment, and that he left the vessel under the influence of such 
 fear, and not merely because he was angered and displeased with 
 the captain, and could not continue on board with ease and 
 comfort (u). 
 
 Damages in actions of tort founded on contract. — When the 
 action of tort is founded on a breach of contract, the damages 
 recoverable are those which may fairly and reasonably be con- 
 sidered to arise naturally, according to the usual course of things, 
 from the breach of contract itself, or which may reasonably be 
 supposed to have been in the contemplation of both parties at the 
 time they made the contract as the probable result of the breach 
 of it. If special circumstances exist which render the neglect or 
 breach of duty productive of more than ordinary injury and 
 damage to the plaintiff, such special circumstances must have been 
 communicated to the defendant in order to make him responsible 
 for the special and extraordinary damages resulting from any 
 neglect or breach of duty on his part (x). A man cannot, by 
 merely changing the form of his action, entitle himself to recover 
 greater damages than those to which he is by law entitled according 
 to the true facts of the case and the real nature of the trans- 
 action (y). 
 
 (»•) likxtsi/ V. iefg, 1 Stai:k. 9§. Srdcdr (*) Sadt&y v. SaxendSde, 9 Exch. 364. 
 
 girdle v. Orford, 2 M.- & S. 77. Portmam v. Middhton, 4 C. B., JiT. S. 322 ; 
 
 (a) Greenland v. OhapUrt, 5 Exoh. 248. 27 Law J., C. P. 231. TheolcM v. MaA 
 
 (i) Ante, pp. 5 — 7. Walker v. Olding, Pais. Ass. Co., 10 Exch. 45. Petersen T. 
 
 32 Law J., Exoh. 142. WUson v. LanV. Ayrii,lZ C. B. 353. 
 
 And York. Bail. Go., ante, p. 513. / (y) Ohinery v. Vicdl, 5 H. & N. 295, 
 
 (m) Boyce y. Bayliffe, 1 Campb. 58. Johnson v. Stem; 83 ii, J., 0, P, 130, 
 
SECT. 1.] COSTS PilEVlOUSLY INCUKRED. 993 
 
 Expense of obtaining legal advice. — The expense incurred by a 
 plaintiff in consulting an attorney and obtaining a legal opinion 
 upon the validity of his claim, is not recoverable as part of the. 
 damages. "Parties must do what they think is right, and the 
 expense of getting the experience of attorneys to advise is not to 
 be repaid by the other party. Nothing of that sort can be allowed 
 in damages, and everything of that nature that a plaintiff is. 
 entitled to will be allowed in the taxation of costs " (2). 
 
 Costs of previous legal proceedings. — A defendant in an action 
 ex delicto is responsible in damages, as we have seen, for the 
 natural and ordinary consequences of the wrong done. Where, 
 therefore, the defendant, who was employed as architect to 
 superinten'd the building of a church, ordered stone for the church 
 from the plaintiffs in ^'s name, and on his account, and the 
 plaintiffs supplied the stone, and afterwards sued A for the price, 
 but failed in their action, and had to pay A's costs and the costs 
 of their own attorney, because it was proved at the trial that the 
 defendant had received no -authority from A to order the stone in 
 his name, and the plaintiffs then brought an action against the 
 defendant to recover the damages they had sustained by reason of 
 his false assumption of agency and pretence of authority for the 
 order he gave, it was held that the plaintiffs were entitled to 
 recoyer from the defendant not only the value of the stone ordered 
 by him in A's name, but also the costs they had incurred and paid 
 in the former action (a). So where a land agent professed to have 
 authority from a landowner to let land, and signed an agreement 
 for a lease, and the landowner repudiated the lease and denied the 
 authority, and the intended tenant, relying on the representation 
 of the agent, filed a bill in Chancery against the landowner for a 
 specific perfoi-mance of the agreement, and notice of the suit was 
 given to the agent, and the latter failed to withdraw his assertion 
 of authority, he was held liable to pay the costs of the Chancery 
 suit (6). But no person relying on a pretended authority of this 
 sort ought in prudence to take legal proceedings against the 
 supposed principal without giving notice to the pretended agent, 
 and giving him an opportunity of withdrawing or verifying his 
 assertion of authority (c). 
 
 Where a tenant gave his landlord notice to quit, and then 
 refused to give up possession, it was held, as we have seen, that 
 the landlord was entitled to recover the costs of an action brought 
 
 (z) Clare v. Maynard, 7 C. & P. 743.- 8 ih. 647, in error; 26 Law J., Q. B, 147; 
 
 (a) RandeU v. Trimen, .18 .0. B. 786 ; 27 ib. 215. Hughes v. Grceme, 33 Law J., 
 
 25 Law J., C. P. 307. Eiclmrdson v. Q. B. 835. Spedding \. Nevdl, ante, 
 
 Dunn, 8 0. B,; N. S. 655 ; 30 Law J., p. 872. 
 C. P. 47. (c) Wightman, J., in Collen v. Wi-ight, 
 
 (i) Uollen V. Wright, 7 Ell. & Bl. 311 ; 26 Law J., Q. B. 151. 
 
 s s s 
 
t 
 
 994 BAMAGES. [CHAP. XXII. 
 
 against him by a person to whom he had contracted to let the 
 premises, but to whom he was unable to give possession in con- 
 sequence of the refusal of the tenant to go out pursuant to his 
 notice. ".The letting to a new tenant," observes Cockburn, C.J., 
 " is the ordinary course of dealing on the part of an owner of land 
 under such circumstances. The defendant, therefore, must have 
 understood, that when the plaintiff gave him notice to quit he 
 would enter into a new contract with a new tenant to let the 
 premises to him from the expiration of such notice. And in this 
 case the tenant was apprised of the fact that the landlord had 
 relet the premises, and was consequently aware of the incon- 
 venience and loss he was exposing him to by his improper con- 
 duct" (cf). - 
 
 In an action for ranning down a ship, in which it appeared that 
 the plaintiff had been obliged, in consequence of the injury, to 
 employ a steam-tug, the owners of which demanded 150/. for 
 salvage, and commenced a suit in the Admiralty Court against 
 the plaintiff, who paid 201, and the court ultimately decreed the 
 payment of 45/., with costs, to the salvors, and the plaintiff sought 
 to recover these costs as part of the damage he had sustained, it 
 was held that the proper question for the jury was, whether the 
 plaintiff, in paying only 201. into court, and risking the costs of the 
 action, had pursued the course which a prudent and reasonable man 
 would take in his own case, and that if the jury thought he had, 
 the costs of the siiit might be recovered (e). 
 
 If the buyer of a horse or a picture with a warranty, relying 
 on the warranty, re-sells the horse or the picture with a warranty, 
 and being sued thereon by his vendee, gives notice to the defendant 
 of the action, and receives no direction from the latter to give up 
 the cause, and proceeds to defend and is worsted, the costs and 
 damages of the defence to that action are part of the damages 
 which the plaintiff sustains by reason of the false warranty, and 
 may be recovered by the plaintiff in an action against the 
 defendant for damages for the breach of warranty (/). But if the 
 plaintiff has made a rash and improvident defence, after having 
 had an opportunity of ascertaining by examination that the 
 warranty could not be supported, he will not be permitted to 
 recover the costs of his defence (g) ; for "no person has a right to 
 inflame his own account against another by incurring expenses in 
 an unrighteous resistance to an action which he cannot defend with 
 
 (d) BramUy v. Chesterton, 2 0. B., N. S. v. Saper, 27 Law J., Q. B. 266 ; EU. Bl. 
 605. & Ell. 84 
 
 (e) Tindaa V.Ben, nM.&W. 228. (g) Wi-ightup r. diamlerlain, 7 Sc. 
 (/) Lewis V. Peahe, 7 Taunt. 162. Pen- 689. 
 
 neU v.WoodJmti, 7 C. & P. 118. Mndcdl 
 
SECT. 1.] MEDICAL EXPENSES. 995 
 
 any prospect of success " (A). If the costs have been taxed, the 
 taxed costs only can be recovered (i). 
 
 If the costs incurred in legal proceedings are not part of the 
 consequences of the wrong done {j), or if they do not naturally 
 result from the breach of any warrant of authority, or if they are 
 the remote, unexpected, and unusual consequence of the wrong, 
 such as costs incurred in upholding a defence which is manifestly 
 wholly untenable (h), they are not recoverable Q). 
 
 Recovery of damages which the plaintiff has hecome liahle to pay 
 through the default of the defendant. — A liability on the part of the 
 plaintiff to pay damages to a third party, by reason of the default 
 of the defendaht, is enough, as we have seen, to enable the plaintiff 
 to recover those damages from the defendant. It is not necessary 
 that the money itself should be actually paid. Thus, where the 
 defendant sold barley to the plaintiff, warranted to be chevalier 
 seed-barley, and fhe plaintiff resold it with a similar warranty, and 
 the barley was not chevalier seed-barley, and the sub-purchaser 
 claimed damages from the plaintiff, whereupon the plaintiff fell 
 back upon the defendant and sued him for these damages, it was 
 held, as we have seen, {ante, p. 870), that he was entitled to recover 
 them, although he had not actually paid them to the sub-purchaser. 
 " I consider," observes Crompton J., " that it was not necessary 
 that there should be a payment before the right to recover these 
 damages accrued, and that the jury may well calculate all the 
 mischief , which, according to the breach of contract, might accrue 
 to the plaintiff. This matter has been a good deal discussed in 
 cases of special damage, and it has been usual to, give in. evidence 
 the amount of the bOIs sent in by surgeons and attorneys, but it 
 has never been said that the liability to pay is not enough to 
 enable the plaintiff in an action of that kind to recover, and from 
 the very nature of the thing here the amount of damages is 
 ascertainable from the kind of crop ' which grows up. Then, 
 another reason for so holding is, that according to the principle 
 upon which damages are assessed they are only to be assessed once, 
 and therefore the jury ought to take aU these circumstances into 
 consideration in estimating the amount of damages to which the 
 plaintiffs are entitled" (m). 
 
 .Medical eccpemes — Physician's fees. — Where the plaintiff had 
 been wounded by the negligence of the defendant in the manage- 
 
 (h) Ld. Denman, C.J., Short v. Kallo- (I) Pow v. Davis; 1 B. & S. 220 ; 30 
 
 ieay, 11 Ad. & B. 31. Law J., Q. B. 256. Richardson v. Dunn, 
 
 (i) Grace v. Morgan, 2 Sc. 793. But 8 0. B., N. S. 655; 30 Law J., 0, P. 44; 
 
 see per Martin, B., in Howard v. Love- ante, pp. 5 — 7. 
 grove, L. B., 6 Exch. 45. (m) Randall v. Roper, supra. Spairh 
 
 {j)'HoUoway v. Turner, 6 Q. E. 928. T. Heslop, 28 Law J., Q. B. 197. Dingle 
 
 (h) Ronneberg v. FalUmd Islands Co., v. Hare, 29 ib. C. P. 143. Addison on 
 
 34 Law J., C. P. 34. " Contracts, 6th ed, 1054, et.seg. 
 
 s s s 2 
 
996 _ DAMAGES, [chap. XXII. 
 
 ment of a gun, and had employed a surgeon and physician for the 
 cure of the iiijury he had sustained, Lord EUenborough told the 
 jury, that as to the surgeon's bill they were to consider the amount 
 as paid by the plaintiff, since the surgeon Could compel the payment 
 of it as a legal debt, but that the physician's fees could not be taken 
 into account, since they 'had not been actually paid, and the 
 physician could not enforce payment by action (n). 
 
 But where the declaration alleged an actual payment of the 
 charges of a third person, the allegation was. held material, _and 
 necessary to be proved in order to enable the plaintiif to recover 
 the amount of them '(p). 
 
 Prospective damages (p). — AlthovTgh a plaintiif is not to be 
 compensated for uncertain and doubtful consequences which may 
 never ensue, yet he is entitled to compensation for losses which 
 will " almost to a certainty happen." The jury may take into 
 their consideration, in making up their minds* on the damages, 
 losses which wiU in all probability be sustained by the plaintiff ; 
 for " when the cp,use of action is complete, when the whole thing 
 has but one neck, and that neck has been cut off by the act 
 of the defendant, it would be most mischievous to say — it 
 would be increasing litigation to say — ^you shall not have all you 
 are entitled to in your first action, but you shall be driven to 
 bring a second, a third, or a fourth action for the recovery of your 
 damages " (§'). 
 
 In estimating the damages in an action for a libel against a 
 trader, the jury may take into consideration the prospective injury 
 which will probably accrue to the trader from the publication of 
 the libel (r). It has been said that the damage sustained at the 
 time of the commencement of the action is all that the plaintiff can 
 recover, and that the jury cannot take into account the prospective 
 injury; but "it appears to me," observes Bosanquet, J., "that 
 the juiy were warranted in proportioning the damages to the 
 amount of injury that would naturally result from the act of the 
 defendant, though it might not affect him until a subsequent 
 period" (s). And the jury may, it seems, give damages for the 
 mental suffering arising from the apprehension of the future 
 consequences of the publication of the libel (t). 
 
 Exemplary and vindictive damages. — We have already seen that 
 
 (ji) Dixon T. Bell, 1 Stark. 289. Loose- (r"S Gregory v. Williams, 1 C. & K. 
 
 more v. Radford, 9 M. & W. 657. SparJc 568.' 
 
 V. Beslop, 28 Law J., Q. B. 197. («) Ingram v. Laviaon, 8 Sc. 477. 
 
 (o) Jones V. Lewis, 9 Dowl. P. C. 150. (0 Goslin v. Carry, 8 So. N. E. 25. 
 
 Priuhet V. Boevey, 1 Cr. & M. 778. See JRandaU v. Ra/per, ante, p. 994. Lam- 
 
 (p) See ante, pp. 213, 214, 609. rence v. Qt. North Sail. Co., and Bagnall 
 
 (?) Best, C.J., Richardson v. Mellish, v. London and N.-Weit. Rail. Co., ante 
 
 2 Bmg. 240. See Fetter v. Real, ante, p. 757. 
 
 p. 601. HodsoU y. iSiaUeln-ass, ante, p. 920. , 
 
SECT. 1.] EXEMPLAKY AND VINDICTIVE. 997 
 
 in actions of tort the damages are left very much to the discretion 
 and judgment of the jury ; and in all cases of malicious injuries 
 and trespasses accompanied by personal insult, or oppressive and 
 cruel conduct, juries are told to give what are called exemplary 
 damages, although the actual personal injury, measured by any 
 pecuniary standard, may be but small. " It tends," observes Heath 
 J., " to prevent the practice of duelling, if juries are permitted to 
 punish insult by exemplary damages. I remember a case where a 
 jury gave 500^. damages for knocking a man's hat off, and the court 
 refused a new trial " (u). " Where," observes G-ibbs, C. J., " a man 
 is disposed to disregard every principle which actuates the conduct 
 of a gentleman, what is to restrain him except large damages 1 " (x). 
 So, where an action was brought by the plaintiff for the seduction 
 of his daughter, and damages were recovered, and a motion for a 
 new trial was grounded on circumstances showing the damages to 
 be excessive, Wilmot, C. J., stated that " actions for seduction are 
 brought for example's sake ; and although the plaintiff's loss in this 
 case may not really amount to the value of 20s., yet the jury have 
 done right in giving liberal damages " (y). 
 
 'W'Tierever the wrong or injury is of a grievous nature, done with 
 a high hand, or is accompanied with a deliberate intention to injure, 
 or with w^ords of contumely and abuse, and by circumstances of 
 aggravation, the jury are authorised in giving, and may be told to • 
 give, vindictive damages («). Thus, where in an action against a 
 colonel of militia for ordering the plaintiff, a common soldier,- to be 
 whipped, it appeared that the colonel had acted unjustifiably and 
 illegally, and out of mere spite and revenge, and the jury gave 150^. 
 damages, and a new trial was moved for on the ground that the 
 man appeared to have been moderately punished, and not much 
 hurt, and that the damages were disproportioned to his sufferings, 
 the court refused the, application, because the man was scandalized 
 and disgraced by such a punishment (a). 
 
 Wherever injury has been done to the fair fame, reputation, or 
 character of the plaintiff, juries are generally invited to give, and 
 are justified in giving, such a sum sis, marks their sense of the 
 maliciousness or recklessness of the wrong-doer in offering the 
 insult and injury ; their belief in the groundlessness of the charge, 
 and their desire to vindicate 'the character of the plaintiff (&). 
 Thus, in all actions of libel and slander, jvhere the object of the 
 plaintiff is to clear himself from, aspersions that have been cast 
 
 (u) Merest v. ITerveij, 5 Taunt. 442; 3.53. Wi]]es, J ., Bell v. Mid. Bail. Go., 
 
 ante, pp. 310, 607. 30 C. B., N. S. 307 ; 30 Law J., C. P. 
 
 (sc) 5 Taunt, 441. 281. imUen \. Myers, 6 H. & N. 54; 30 
 
 {ij) TiMidge v. Wade, 3 Wils. 18. And Law J., Exch. 71. 
 
 see Hackh r. Money, ante, p. 990. ' (a) Benson v. Frederick, 3 Burr. 1847. 
 
 (z) Thomas v. Harris, 27 Law J., Exch. (b) Doe v. FiUiUr, 13 M & W. 51. 
 
998 ' DAMAGES, ■ [CHAP. XXII. 
 
 upon him, the jury are in the habit of giving large damages, with 
 a view of vindicating the plaintiff's character from the aspersions 
 cast upon it. And in an action for oral slander, where the cause 
 of action rests upon special damage alleged and proved, the jury, 
 in assessing their damages,^ are not limited to the amount of special 
 damage proved, but may give their verdict for general damages, 
 which would in their judgment be the natural and probable result 
 of it. They must, however, as we have seen iante, p. 804), exclude 
 from their consideration damages resulting from the repetition of 
 the slander by third parties who had no authorityfrom the defendant 
 to repeat it (c). 
 
 Evidence in mitigation of damages (c^.^-Circumstances cannot 
 be given in evidence in mitigation, of damages where they would 
 amount to a complete justification, and might have been pleaded as 
 such ; but where they fall short of a complete justification, and do 
 not amount to a defence to the action, they may be given in 
 evidence in mitigation of damages, as establishing a less aggravated 
 case against the defendant (e). Thus, in an action for an assault 
 and battery, the jury are not at liberty to take into consideration 
 the circumstances that led to the assault, with a view to the reduc- 
 tion of the damages, if those circumstances amount to a justification, 
 and could have been pleaded as such(/); but if they merely 
 . palliate the character of the offence and mitigate, the wrong, they 
 are admissible in evidence in reduction of the damages under the 
 general issue {g). 
 
 In an action for assaulting the plaintiff and seizing his goods, 
 it may be shown in mitigation of damages that the defendant was 
 a custom-house officer, and that the plaintiff was going away from 
 a vessel with goods liable to duty, without paying the duty, where- 
 upon the defendant detained him and took possession of his goods; 
 for this evidence does not amount to a complete justiflcationj 
 inasmuch as a custom-house officer cannot forcibly take goods from 
 the person without a previous demand Qi). Where the defendant 
 gave the plaintiff in charge for stealing fat, and it appeared that 
 there was no legal evidence of any felony, but the defendant lonA 
 fide believed that his fat had been stolen, and that the plaintiff had 
 stolen it, and there was reasonable ground for his belief. Best, C.J., 
 allowed the grounds of suspicion to be given in evidence in miti- 
 gation of damages (i). 
 
 (c) Dixon V. Smith, 5 H. & N. 450 ; 29 Dowl. 470 ; 5 M. & W. 281. 
 Law J., Exch. 125. Emns v. Barnes, If) Watson v. Christie, 2 B. & P. 224. 
 
 2? i6. 31. Allsop V. AUsop, 5 H. & N. (g) Linford y. ZaJce, 3 H. & N. 276;- 
 
 "^f- „ ' 27 Law J., Exch. 334. 
 
 )} m?^^^'*'^P;^9"^- W Ld. Denman, C.J., De Gondouin r. 
 
 W Imdal, O.J., Perkins t. Vavghan, Lewis, 10 Ad. & E. 120. 
 7 be. Is. K. 886. Spech y. Phillips, 7 (t) Chinn v. Moi-ris, 2 C. & P. 364. 
 
SECT. l.J MITIGATION OF. 999 
 
 •In an action for libel or slander, where the plaintiff claims 
 damages on the ground of the disparagement of his character, 
 general evidence of the plaintiff's bad character prior to the publi- 
 cation of the libel is admissible in evidence, as we have seen, in 
 reduction of the damages, but not evidence of the truth of the 
 words spoken, or anything which, if pleaded, would have amounted 
 to a justification (k). 
 
 Where the defendant wrote a novel, and the plaintiff in review- 
 ing it went beyond the bounds of fair criticism and libelled the 
 defendant and his family, and the defendant thrashed the plaintiff, 
 who brought an action for the assault, it was held that the libel 
 might be given in evidence in mitigation of damages, although it 
 was the subject of another action by the defendant against the 
 plaintiff ; but the jury were told that, as the defendant had chosen 
 his remedy for the libel by his action for damages, he could not 
 fairly be allowed to take much advantage of it in mitigation of 
 damages in the action for the assault (T). 
 
 Where the plaintiff painted a picture, which he designated 
 " The Beauty and the Beaet," and caused it to be exhibited in Pall 
 Mall for money, where crowds went to see it, and the defendant 
 went and hacked the picture in pieces, and the plaintiff claimed 
 the full value of the picture, and compensation for the loss of the 
 exhibition, the defendant was permitted to show in mitigation of 
 damages that the picture was a scandalous libel upon the defendant's 
 brother and sister, and the exhibition of it a public nuisance. "If," 
 observes Lord EUenborough " this picture was a libel upon the 
 persons introduced into it, the law cannot coiisider it valuable as a 
 picture. Upon an application ,to the Lord Chancellor, he would 
 have granted an injunction against its exhibition, and the plaintiff 
 was both civilly and criminally liable for having exhibited it. The 
 jury, therefore, in assessing the damages must not consider 
 this as a work of art, but must award the plaintiff merely the 
 value of the canvas and paint which formed its component 
 parts " (m). 
 
 If a vendor has sold goods to a purchaser, and' delivered them 
 to him without payment of the price, and then, fearing that he 
 never will be paid, goes and takes them out of the possession of 
 the debtor, and the latter brings an action for damages, the jury 
 cannot lawfully take into their consideration, in reduction or 
 mitigation of the damages, the 'fact that the goods had not been 
 paid for, and that there was reasonable gi'ound to 4Delieve that the 
 
 {h) Ante, p. 828 ; Keilw. 203 b, Denrm, {1} Fraser v. BerJceky, 7 C. & P. 625. 
 
 T. Pawling, Tin. Ab'r., Evidence (1 b), (m) Du Boat v. Siresford, 2 Campb. 
 
 pi. 16. See ante, p. 913. 511. 
 
1000 DAMAGES — JOINT-TKESPASS. [CHAP. XXII. 
 
 purchaser never would pay for them, as that would be equivalent 
 to allowing a set-off of a debt in an action of trespass (n). 
 
 In actions for damages for seizing goods under irregular or void 
 process, it is no ground for mitigation of damages that a regular 
 judgment had been recovered against the plaintiff. Parties are not 
 to extort even what is justly due by the improper execiition of a 
 warrant, and wherever goods are seized under process in a place to 
 which the process does not run, the full value of the goods and all 
 provable damage are recoverable (o). 
 
 Joint-trespasses — Recovery- of damages from, one of several co- 
 trespassers. — We have already seen, that where several persons 
 commit a trespass in pursuit of one common design, each is 
 answerable for the aggregate damage done by all {p). The jury 
 cannot regularly assess several damages for one trespass with which 
 the defendants are jointly charged ; for though in fact one was 
 more malicious and did greater wrong than the other, yet, all 
 coming to do an unlawful act, the act of one is the act of all the 
 parties present ; and it is a rule of law, that what the plaintiff hath 
 laid joint in his declaration, the jury cannot sever (g). Whenever, 
 therefore, two or more persons are charged with a joint trespass, 
 and both or aU are found jointly guilty, the jury cannot afterwards 
 assess several damages (r). The damages must be assessed against 
 all jointly, thougb all may not have been equally culpable (s). 
 Where an action of trespass was brought against three defendants, 
 and two of them pleaded, and the other let judgment go by default, 
 and several damages ' was given, thirty-five shillings, against the 
 two, and two shillings against the single defendant, the court held 
 that the plaintiff might either take judgment of the thirty-five 
 shillings, or enter a remittitur, but could not take the whole 
 damages (thirty^seven shillings) assessed (f). 
 
 - No contribution can be claimed as between joint wrong-doers. 
 If, therefore, a plaintiff who has recovered judgment against two 
 defendants for a joint trespass, levies the whole damages on one of 
 them, that one has no claim for a moiety of the damage from the 
 other (u). 
 
 Damages when the plaintiff has insured against loss, or has 
 received full indemnity under a contract of insurhnce. — Where a 
 contract of insurance has been entered into, and a loss has been 
 sustained by the assured for which he has received indemnity from 
 
 (n) GWard v. Brittan, 8 M. & W. 575. (r) HiU v. GoodcUld, 5 Burr. 2791. 
 
 (o) SowM y. Champion, 6 Ad. & E. 407. (s) Eliot v. AUen, 1 C. B. 18. 
 
 Edmondson v. NuttaU, 34 Law J., C. P. (t) Sabin v. Long, 1 Wils. 30. 
 
 102. (■«) Merryweatker v. Nixan, 8 T. E. 
 
 (p) Hume T. Oldacre, ante, p. 314. 186. Farcbrother v. Avsley, 1 Campb. 
 
 Clarh V. Newsam, ante, p. 609. 344. 
 
 (q) Brown v. AUen, i Esp. 158. ., 
 
SECT. l.J IF PLAINTIFF IS INSUKED. 1001 
 
 tlie underwriters, and the assured has afterwards brought an actiori 
 against the wrong-doer who occasioned the loss and recovered 
 damages, the insurer or underwriter who has paid the amount of 
 the loss may recover from the assured the amount of the damages 
 he has received from the wrong-doer. Thus, the owner of goods 
 who has intrusted them to a carrier, by land or by water, to be 
 carried, and insures them against loss, and then sustains loss 
 through the negligence of the carrier, is entitled to recover an 
 indemity on the contract of insurance, and also the full value of 
 the goods from the carrier who has lost them ; but he is not 
 entitled to double satisfaction. As soon as he has received from 
 the underwriter or insurer the amount for which he has insured, 
 he becomes a trustee for the latter in respect of any compensation 
 paid or pay3,ble by the wrong-doer, and is bound to hand over to 
 the insurer whatever money he receives from the wrong-doer over 
 and above the actual loss he has sustained, after taking into 
 aecoimt the amount he has received under the contract of insurance. 
 The insurer, moreover, who has paid the loss, is entitled to sue in 
 the name of the insured, for the purpose of recovering from the 
 wrong-doer full compensation for the injury (x) ; and in such an 
 action the court will not allow the sum received by the plaintiff on 
 the policy of insurance to be given in evidence in reduction of 
 damages. " If a plaintiff who has received full indemnity for his 
 loss under a contract of insurance, could not recover from a wrong- 
 doer, the latter," observes Tindal, C.J., " would take the benefit of 
 a policy of insurance without paying the premium." 
 
 In an action for an injury done to the plaintiff's vessel from 
 negligence in running it down at sea, the fact of the plaintiff's 
 having received from the underwriters the amount of the loss was 
 held to be no answer to the plaintiff's claim for damages (3/). And 
 where certain insurers had paid the amount of the loss occasioned 
 by the demolition of a house by rioters, it was held that they 
 might maintain an action in the name of the assured against the 
 hundred, under the statute, to recover compensation for the injury (2;). 
 
 Double and treble dayrtages. — Various statutes give, as we have 
 seen, double and treble damages against persons who violate their 
 provisions, such as the statutes prohibiting and punishing a forcible 
 entry into lands /and tenements {a); or the improper impounding 
 of a distress (&) ; or the levying of a distress where no rent is 
 due {ante, p. 537) ; or the rescuing a distress (c) ; or the takin" 
 by sheriff's bailiffs, their officers, deputies, &c., more than the 
 
 {x) Randall v. Cochran, 1 Ves. Ben. Clarh v. Blytldng, 2 B. & C. 251 • 3 D & 
 
 97. E. 489. 
 
 (y) Yates v. WhyU, 5 Sc. 640 ; 4 B. N. (a) 8 Hen. 6, c. 9 ; Dyer, 214 a 
 
 0. 272. (6) 1 & 2 Pk & M. c. 12, g. 1. 
 
 (z) Mason v. Sainshury, 3 Doug. 64. (c) 2 Wm. & M. sess. 1, c. 5, s. 4. 
 
1002 EXCESSIVE DAMAGES. [CHAP. XXII. 
 
 appointed fees or recompense on executions {cmU, pp. 663, 672, 
 673). In these cases, it should be ascertained at the trial whether 
 the amount of dg,mage assessed by the jury is the actual damage 
 sustained, or the statutory damage of double or treble the actual 
 damage; for if the jury assess the damages generally at a certain 
 sum, and there is nothing on the record to show that the jury have 
 fouhd only the single value, the court cannot allow the matter to be 
 explained by affidavit and the postea amended ; for they are bound 
 to conclude from the postea that the jury have taken into their 
 consideration and have assessed all the damages that the plaintiff 
 
 , is entitled to recover. But if the jury find the actual or single 
 damage expressly, then the plaintiff may come into court to have 
 the judgment entered up for double or trfible value according to the 
 statute (cZ). 
 
 In the- case of actions brought by the Crown for penalties of 
 double or treble the amount of duty fraudulently kept back, the 
 practice appears to be " for those who attefnd to the interests of the 
 Crown to get the jury to find the actual amount of 'the duty which 
 ought to have' been paid, and then, without any further communi- 
 cation with them, to enter up judgment for double or treble the 
 amount " (e). When the jury have by their verdict found only the 
 
 . single dp.mage, the application to the court to increase the damages 
 to the statutory amount should, it seems, be made within four days 
 of the return of the jury process (/). 
 
 l^ew trial on the grownd of excessive and outrageous damages. — 
 " I should be sorry to say," observes Lord Mansfield, " that in cases 
 of personal torts, no new trial should ever be granted for damages 
 which manifestly show the jury to have been actuated by passion, 
 partiality, or prejudice. But it is not to be done without veiy 
 strong grounds indeed, and such as carry internal evidence of 
 intemperance in the minds of the jury " (g). " I always have felt 
 that it is extremely difficult to interfere, and say when damages are 
 too large. You may take twenty juries, and every one df them will 
 differ from 2000^. down to 200?. Nevertheless it is now well 
 acknowledged ifl all the courts of Westminster Hall, that if the 
 damages are clearly too large, the courts will send the inquiry to 
 another jury. Where they interfere, they always go into all the 
 circumstances, put themselves in the situation of the plaintiff and 
 defendant, and examine closely into all their conduct" (A). 
 
 [d) Baldmyn v. Girries, Godb. 245. (g) GitbeH v. Burteiuhaw, Cowp. 230 ; 
 Sandford v. ClarJce, 2 Chitt. 352. Buckle Lotft. 771. BrittonT. South Wales Mail. 
 V. Bewes, 4 B. & 0. 154. Ba!cer v. Bromi, Co., 27 Law J., Exch. 355. 
 
 2 M. & W. 199. (A)- MewZett v. CrucUey, 5 Taunt. 281. 
 
 (e) Attorney-eerural v. Hutton, M'Clel. Pym v. Gt. North Rail. Co., 31 Law J., 
 216. Q B.252. 
 
 (/) Matters v. Farrii, 1 C. B. 716. 
 
SECT. 1.] NEW TRIAL. 1003 
 
 " I think further," observes Ashhurst, J., " that before the court 
 can set a verdict aside merely for excess of damages, they ought to 
 be able to ascertain some^rule by which the damages are to be 
 measiired, and to which the facts may be applied. Where damages 
 depend in anywise upon calculation, the court have some medium 
 to direct them by which they are enabled to correct any mistake of 
 the jury. But where there is no such light to guide them, where 
 the damages depend upon mere sentiment and opinion,, the court 
 have no line to go by ; and, therefore, it would be very dangerous 
 for us to interfere. We have no right in such a case to set up- our 
 own judgment against that of the jury, to which the constitution 
 has referred the decision of the question of damages " (i). 
 
 But when there is any rule or guidance for the assessment of the 
 damages, and the jury have not been properly directed on the point, 
 or have disregarded the ruling of the judge, and have manifestly 
 given excessive damages, the court wiU grant a new trial. So where 
 the plaintiff has himself fixed the amount of damage and received 
 it, and the jury give him a sum 'altogether disproportionate to his 
 own estimate, the court wUL interpose and grant a new trial, unless 
 the plaintiff consents to reduce the damages to a reasonable amount. 
 Thus, where an importunate beggar having refused to quit the 
 defendant's premises, the defendant ordered him to be apprehended 
 by a constable, which was done, and he remained in custody one 
 night at an inn, and was brought before the defendant the follow- 
 ing morning, when he demanded compensation,, and the defendant 
 told him he might have two sovereigns or go before a justice, and 
 the plaintiff consented to take the money, but said at the same time 
 that he must have something for the keep of his horse, and 'the 
 defendant then gave him half-a-crown, and directed the butler to 
 give him some refreshment, and the butler did so, and the plaintiff 
 went away, and then brought an action against the defendant, and, 
 there being no plea of accord and satisfaction on the record, 
 recovered a verdict with damages to the amount of 100^., it was 
 held that the damages were enormous and disproportionate, on 
 account of the limit which the plaintiff himself had put on his 
 demand in the first instance. " It seems to me," observes Tindal, 
 C. J., " that if accord and satisfaction had been pleaded, it would 
 have been a bar to the action. A verdict for 100^, is far beyond 
 the merits, as we cannot but see, on the evidence of the plaintiff 
 himself, who has set the measure on his own damages " (k). 
 
 Wherever the facts show that the plaintiff has taken upon him- 
 self to avenge his own wrongs, and to retaliate upon the defendant, 
 these facts ought to be taken into consideration by the jury in 
 
 (t) DuberUy v. Gunning, 4-T. K. 656. {k) Price v. Severn, 7 Bing. 319. 
 
1004 DAMAGES, [CHAP. XXII. 
 
 reduction of damages ; and if the jury have not been directed to do 
 this, or have disregarded the direction, and have given excessive 
 damages, the court will grant a new trial. Where an action was 
 brought by a servant for an assault alleged to have been committed 
 upon him by his master, and it appeared that the master had giveii 
 the servant a slight blow for impertinent behaviour, whereupon the 
 servant turned upon his master and gave him a violent thrashing, 
 and then brought an action for the original assault upon himself, 
 and recovered 40^. damages, the court granted a new trial (f). 
 
 Where also the plaintiff himself has been guilty of misconduct 
 in the matter of his complaint, and does not come into court with 
 clean hands and a fair case for damages, and the circumstance has 
 been overlooked by the jury, and excessive and disproportionate 
 damages have been given, the court will allow the matter to be 
 revised by another jury (m). And when a defendant against whom 
 excessive damages have been recovered appears to have been acting 
 in the discharge of some duty, or in the intended execution of an 
 Act of Parliament, or in the hondfide exercise of some power or 
 authority which he supposed that he possessed, and intended to act 
 right, but by mistake did wrong, and the damages are manifestly 
 out of all proportion to* the injury actually sustained, the court will 
 interfere and grant a new trial for the purpose of confining the 
 damages within moderate and reasonable limits (n). 
 
 New trial on account of tJie sniallness of the damages. — ^A new 
 trial will sometimes- be granted in actions ex delicto for sinallness of 
 damages, when it appears that if the plaintiff is entitled to a verdict 
 at all he is manifestly entitled to much greater damages than have 
 been given by the jury. Thus, where it was proved that by reason 
 of the defendant's negligence in driving an omnibus the plaintiff 
 was run over and his thigh broken, and that "the doctor's bOl for 
 setting his leg and attending upon him came to 10^. os. 6d., and the 
 jury gave the plaintiff a verdict with a farthing damages, the court 
 ordered a new trial (o). But where there is no standard for estimat- 
 ing the damages, and the court are unable to lay down any rule for 
 the guidance of the jury, the court will -not grant a new trial, 
 although they may think the damages much too small (p). 
 
 Arrest of judgment where the plaintiff has a verdict for greater 
 damages than he is legally entitled to. — Whenever some of the 
 damages claimed in the declaration are not legally recoverable, and 
 damages are assessed generally, so that the plaintiff has recovered 
 more .damages than he ought, judgment will be arrested {q). AVhere 
 
 (I) Jones V. Sparrow, 5 T. K. 257. ' (o) Armijtage t. Haley, i Q. B. 918. 
 (m) Bailer, J., iu Svberley v. Ounning, ' (p) Strafford's case, cited 4 T. II. 655. ' 
 
 4 T. R. 658. See amU, p. 827, n. (h). 
 
 (n) Eliot T. Allen, 1 0. B. 40. (q) Prince v. MoU, 2 Salk. 663. 
 
SECT. l.J INQUISITION OF, BEFORE SHEKIFF. 1005 
 
 the plaintiff declared against the defendant for seducing the plain- 
 tiff's apprentice from his service, and for the loss of the service of 
 the apprentice for the whole residue of the term of apprenticeship, 
 and the jury assessed the damages generally, and it appeared that 
 the term was not expired, judgment was arrested on the ground 
 that the plaintiff was not entitled to recover damages for all the 
 term, as well for the time to come as for the time past, as claimed 
 in the declaration ; for the apprentice may return to his master and 
 serve him for the residue of the term yet to come, or the master 
 may compel the apprentice by law to serve him for the residue of 
 the term, and the plaintiff ought not to have hoth the service and 
 damages for the loss of it (r). 
 
 " The cases seem to establish this principle, that where it is 
 positively and expressly averred in the declaration that the plain- 
 tiff has sustained damages from a cause subsequent to the com- 
 mencement of the action, or previous to the plaintiff's having any 
 right of action, and the jury give entire damages, judgmeiit will be 
 arrested ; but where the cause of action is properly laid, and the 
 other matter either comes under a scilicet, or is void, insensible, or 
 impossible, and therefore iij cannot be intended that the jury ever 
 had it under their consideration, the plaintiff will be entitled to his 
 judgment " (s). - , 
 
 The plaintiff can recover no more damages than he has claimed 
 in his declaration, although the jury give him more, for he best 
 knows the measure of his own wrong, and the amount of compen- 
 sation to which he is entitled. If, therefore, the jury give him 
 more than he claims, he must relinquish the extra damages, or 
 there will be error on the record (t). 
 
 Inquisition of damages before the sheriff. — When judgment has 
 been suffered by default in an action of tort, a writ of inquiry must 
 be issued for the summoning of a jury, and the assessment of 
 the damages before the sheriff (?t). The plaintiff must appear at 
 the time and place appointed for the execution of the writ, and 
 prove the amount of damages sustained by him ; and he must be 
 careful to confine his claim to matters which can lawfully be made 
 a ground for compensation ; for if he gives evidence of losses which 
 are not the natural result of the injury of which he complains, and 
 induces the jury to include in their verdict damages which are not 
 legally recoverable, the court will set aside the inquisition (x), un- 
 less it appears that no objection was taken by the defendant, and 
 that both parties mutually consented to take the verdict of the jury 
 
 ()•) Hambklon v. Veere, 8 Wms. Saund. (t) Ohevekyy. Morris, 2 W. Bl. 1300. 
 
 170. («) Chitt. Arch. Pr., Inquiry. 
 
 (s) Hamhleton v. Veere, 3 Wms. Saund. (k) Penny, In re, 7 Ell. & Bl, 668; 26 
 
 171 c, in, notu. Law J., Q. B, 225. 
 
1006 COSTS, ' [CHAP. xxn. 
 
 upon the matters subinitted to them. It is the duty, however, of 
 the sheriff to-point out to the jury the true grounds and measure of 
 ^ compensation, and if he directs them wrongly, and they go beyond 
 their authority, the court will interfere to set matters right. 
 
 SECTION II. 
 
 OF THE KEOOVEKY OF COSTS IN ACTIONS EX DELICTO. 
 
 Award of costs tg a successful plaintiff in the superior courts. — ■ 
 The expenses that a party has incurred in ohtaining his riglit, such 
 as the fees of counsel, the attornies' bills, and the expenses of wit- 
 nesses, Ave termed costs, and these are given by the court and taxed 
 by their -officer. " In contemplation of law the word damages 
 emphatically includes costs. It is so considered by Lord Coke, and 
 in various authorities. Costs, therefore, properly fall under the 
 nomen generate of damages " (y). 
 
 "By the statute of Gloucester, 6 Ed. 1, c. 1, there was no mode of 
 giving a successful plaintiff his costs unless the jury assessed them, 
 and included them in the amount of damages, but that statute 
 enables the plaintiff to recover his costs, by the judgment of the 
 court, in all cases where he recovers damages (z). And the 4 Anne, 
 c. 16, which enabled defendants to plead several matters, enacts 
 (s. 5) that if any such matter shall, upon demurrer joined, he 
 judged insufficient, costs shall be given at the discretion of the 
 court ; or if, a verdict shall be found upon any issue in the said 
 cause for the plaintiff, costs shall be given in like manner, unless 
 the judge who tried the issue shall certify that the defendant, had 
 a probable cause to plead such matter (a). 
 
 Costs to a successful defendant. — By the 23 Hen. 8, c. 15, it is 
 enacted, that if 'the plaintiff, in any action of detinue, or account, 
 or upon the case, or upon any statute for any offence or personal 
 wrong, should be nonsuited, or a verdict should pass against him, 
 the defendant should have judgment to recover his costs against the 
 plaintiff, to be assessed and taxed by the discretion of the judges 
 of the court. And the 4 Jac. 1, c. 3, enacts (s. 2), that if any 
 person shall commence any action of trespass or ejectment, or any 
 
 (y) Per Ld. Ellenborough, C. J., Phil- E. 29, 30 ; 1 Ell. & Bl. Appendix, Ixxxiii. 
 
 lips V. Bacon, 9 East, 303 ; Co. Litt. Mobbs v. Vandenbrande, 33 Law J., Q. B. 
 
 257 a. As to costs in error, see ParJcer 177. Cole on Ejectment. 
 
 V. Tootal, L. E., 1 Exch. 41, 115. ■ (a) As to costs under this statute, see 
 
 (s) Jachson v. Cdlesworth, 1 T. E. 72. Partrid!/eY.Oardner,i'Exc\i.Z0Q. ffowett 
 
 As to costs in actions of ejectment, see v. Bodhard, ib. 311. 
 New Pleading Eules, Hil. Term, 1853, 
 
SECT. 2.] ' OF DEFENDANT. 1007 
 
 other action whatsoever, whei'ein the plaintiff or demandant might 
 have costs, in ease judgment should be given for him, and the 
 plaintiff or demandant be nonsuited, or any verdict happen to pass 
 against him, then the defendant shall have judgment to recover his 
 costs against the plaintiff or demandant. This statute, therefore, 
 gives a successful defendant his costs in all cases where the plain- 
 tiff, if successful, would be entitled to costs (6). 
 
 By 8 & 9 Wm. 3, c. 11, s. 1, it is further enacted, that where 
 several persons shall be made defendants to any action or plaint of 
 ti''espass, assatilt, or false imprisonment, and any one or more of 
 them shall, upon the trial thereof, be acquitted by verdict, every 
 person so acquitted shall recover his full costs of suit, unless the 
 judge shall, immediately after the trial, in open court, certify upon 
 the record under his hand that there was reasonable cause for 
 making such person a defendant. And (s. 2) that if upon any 
 demurrer, either by the plaintiff or defendant, judgment shall be 
 given against such plaintiff; or if, after judgment given for the 
 defendant, the plaintiff shall sue a writ of error, and the judgment 
 shall be afHrmed, or the writ be discontinued, or the plaintiff shall 
 be nonsuited therein, the defendant shall have judgment to recover 
 his costs, and have execution for the same. 
 
 The 32nd section of 3 & 4 Wm. 4, c. 42, also enacts, that where 
 several persons shall be made defendants, and any one or more of 
 them shall have a nolle prosequi entered as to him or them, every 
 such person shaU. recover his reasonable costs ; and if a verdict 
 shall pass for any one or more of them, every such person shall 
 have judgment for and recover Ms reasonable costs, unless the judge 
 shall certify that there was reasonable cause for making him a 
 defendant. And by s. 34 it is enacted, that in all writs of sci. fa. 
 the plaintiff, obtaining judgment on an award of execution, shall 
 recover his costs upon a judgment by default, as well as upon a 
 judgment after plea pleaded, or demurrer joined, and that where 
 judgment shall be given either for or against a plaintiff, or for or 
 against a defendant, upon demurrer in any action whatever, the 
 successful party shall have his costs. 
 
 Where one of two defendants is struck out at the trial and the 
 plaintiff obtains a verdict against the other, the ordinary course is 
 to tax the whole costs of the action on each side and deduct from 
 the plaintiff's costs a moiety of the costs of the defence (c). 
 
 Costs on pleas setting up matters of defence which have arisen since 
 the last 'pleading. — It seems that formerly, if a defendant pleaded 
 puis darrein continuance, that pleading operated as a withdrawal of 
 
 (J) Cobbett V. Wlieder, 30 Law J., Q. B. (c) Redmy v. WMen', 13 C. B., N. S. 
 61 254. 
 
1008 ■ COSTS, [CHAP. XXII. 
 
 all other pleas, and the defence rested on this alone, so that the 
 plaintiif had nothing but this one plea to traverse ; and if he was 
 obliged to confess this he could get no costs, because he could only- 
 get them under the statute of Gloucester by a judgment, and the 
 defendant was entitled to judgment. But justice seemed to require 
 that if the plaintiff was prosecuting a just claim up to a certain 
 point, he ought to have his costs of suit up to that time, and the 
 pleading rules made under statutory authority have accordingly 
 given the plaintiff his costs up to the time of pleading the plea, if 
 he admits the truth of it (d). 
 
 Costs on a stay of proceedings. — Upon a summons, to stay pro- 
 ceedings, on payment of a certain sum and costs, if the plaintiff 
 refuses to take the amount offered in discharge of his claim, but 
 afterwards accepts it, there is no absolute rule which entitles the 
 defendant to his costs incurred subsequently to the summons (e). 
 
 Costs on arrest of Judgment, or judgment non obstante veredicto. 
 — By the Common Law Procedure Act, 1852, 15 & 16 Vict. c. 76, 
 it is enacted (s. 145), that upon arrest of judgment, or judgment 
 non obstante veredicto^ the court shall adjudge to the party against 
 whom such judgment is given the costs occasioned by the trial of 
 any issues of fact arising out of the pleading, for defect of which 
 such judgment is given, upon which such party shall have suc- 
 ceeded, and such costs shall be set off against any money or costs 
 adjudged to the opposite party, and execution may issue for the 
 balance, if any (/). 
 
 Where the court ha,s no jurisdiction it has no power to give costs. 
 —When a case has been dismissed by a court of law for want of 
 jurisdiction, the court cannot give judgment for costs (g), unless 
 it is empowered so to do by express statutory authority (h). By 
 the County Court Act, 9 & 10 Vict. c. 95 (s. 79), it is enacted, that 
 if the plaintiff shall not make proof of his demand to the satis- 
 faction of the court, it shall be lawful for the judge to nonsuit the 
 plaintiff, or to give judgment for the defendant, and, in case where 
 the defendant shall appear and shall not admit the demand, to award 
 to the defendant by way of costs such sum as the judge shall think 
 fit. It has been held that this enactment does not empower the 
 judge to nonsuit and award costs when the case is out of his 
 jurisdiction, for the plaintiff might be able conclusively to prove 
 the cause of action brought before the court, but for the objection 
 
 (d) Ueg. Gen. Trin. Term, 1853, E. 22, (g) Strader v. Orahm, 18 How. Eep. 
 
 23 ; 1 Ell. & Bl. App. lx?xii. Howarih v. Supreme Court, U. S. 602. Reg. t. Jus- 
 
 Brovm, 32 Law J., Exch. 99. Bennett v. ticea of Hampshire, 32 Law J., M. C 47. 
 
 Land, and North- West. Sail. Co., 5 H. & Tsle of Wight Ferry Co. t. Bvde Com. <tc., 
 
 N. 604 ; 29 Law J., Exch. 473. 7 L. T. E., N. S. '391. 
 
 (c) Walton V. Brovm, 3 H. & N. 879. {h) 8 & 9 Wm. 3, c. 30, s. 3 ■ 12 & 13 
 
 (/) Whaleyy.Lmng,5K.&l!i.m. Vict. c. 45, s. 6. '<'>'' 
 
SECT. 2.] IN ACTIONS OF SLANDER OR LIBEL. 1009 
 
 to the jurisdiction on the part of the defendant. Under such 
 circumstances the court has merely power to declare its own incom- 
 petency to try the cause, and to direct that the suit shall ahate, the 
 plea to the jurisdiction being a plea in abatement of the suit. 
 " We are of opinion," observes PoUock, C.B., " for the same 
 reasons, that the provision over costs in the 88th section of the 
 same Act only applies to cases within the jurisdiction of the county 
 court to hear and determine " (i). 
 
 Effect on costs of withdrawing a Juror. — If on the trial of a 
 cause a juror is withdrawn by consent, each party pays his own 
 costs (k) ; there is an end to the action, and, if the withdrawal was 
 made by virtue of an agreement between the parties under circum- 
 stances showing that the particular cause of action was abandoned, 
 no future action can be brought for the same cause. If, therefore, 
 a second action is brought, the court will stay the proceedings 
 therein (I). 
 
 Costs in actions of slander and libel. — By 21 Jac. 1, c. 16, s. 6, 
 it is enacted, that in all actions for slanderous words, if the jury 
 upon the trial of the issue in such actions, or the jury that shall 
 inquire of the damages, do find or assess the damages under 40s., 
 the plaintiff shall have and recover only so much costs as the 
 damages so given or assessed amount unto. In the construction of 
 this statute it has been held, that where the words are in them- 
 selves not actionable, but the action is maintainable by reason of 
 special damage sustained by the plaintiff, the statute does not 
 apply, and the plaintiff is consequently entitled (independently of 
 the County Court Acts,) to full costs, though the damages are 
 under 40s., for it is riot the words but the special damage which is 
 the cause of action ; but that when the words are actionable in 
 themselves, and the special damage is laid by way of aggravation, 
 then if the damages are under 40s. there should be no more costs 
 than damages, for the action is properly an action for words within 
 the statute (m). Nor does the statute apply to cases where no 
 damages at all are given. "Where, therefore, to a declaration for 
 slander the defendants pleaded not guUty and a justification, and 
 at the trial no evidence was offered upon the second issue, and a 
 verdict was given thereon for the plaintiff without any damages ; 
 but under the issue upon the plea of not guilty the defendants 
 proved that the words spoken were a privileged communication, 
 and upon that issue the verdict was for the defendants, it was held 
 that the statute of James did not affect the case, and that the 
 
 (i) Lawford v. Partridge, I'H. & N. 15 Law J., Exch. 7. Harries v. Thomas, 
 
 626 ; 26 Law J., Exch. 147. 2 M. & W. 38. 
 Ih) StodhaH v. Johnson, 3 T. R. 657. (m) Burryy. Perry, 2 Ld. Eaym. 158S. 
 
 (?) Oibls y. Ralph, 14 M. & W. 804 ; Brovm v. Gibbons, ih. 831 ; 1 Salk. 236. 
 
 T T T 
 
1010 COSTS. [CHAP. XXlIr 
 
 plaintiff was entitled to his full costs upon the second issue under 
 the statute of Anne {ante, p. 1006) {n). Nor does the statute apply, 
 it seems, to actions referred before trial, and where therefore there 
 is no yerdict. A plaintiff, therefore, would, in such a case, be 
 entitled (independently of the County Court Act,) to full costs in 
 such a case, although he recovered but 20s. (o). 
 
 The 3 & 4 Vict. c. 24, s. 2 {post, p. 1011), enacts, that if the 
 plaintiff in any action on the case recovers less than 40s. damages, 
 he shall not be entitled to any costs,, unless the judge or presiding 
 officer, certifies in manner therein provided that the grievance Ivas 
 wilful and malicious. This section, however, does not conflict with 
 the 21 Jac. 1, c. 16, s. 6, so as to repeal it, but both enactments 
 stand together. If the judge certifies under s. 2 of the statute of 
 Victoria, the certificate will have the effect of taking the case out 
 of the enacting part of that section, and will leave the plaintiff in 
 the same position with respect to costs as he would have been in if 
 the 3 & 4 Vict. c. 24 had never been passed. In cases where the 
 statute of Gloucester {ante, p. 1006) applies, this would give the 
 plaintiff his fuU costs, but where the right under the statute of 
 Gloucester is qualified by any subsequent statute (by the County 
 Court Acts, for instance), the certificate under 3 & 4 Vict. c. 24, 
 leaves the plaintiff with that qualified right. A plaintiff, therefore, 
 in an action for slander, who has obtained a certificate under 3 & 
 4 Vict. c. 24, s. 2, that the slander was wilful and malicious, and 
 under 30 & 31 Vict. c. 142, s. 5, that there M'as sufficient reason 
 for bringing the action in a superior court, is nevertheless only 
 entitled to the same costs as he would have been entitled to if those 
 statutes had not been passed, i.e., independently of 21 Jac. 1, c. 16, 
 to full costs, but under that statute to as much costs only as 
 damages {p). Where, therefore, the words giving rise to an action 
 of slander are not actionable in themselves, and the action is 
 maintainable only by reason of special damage, the certificate of 
 the judge or presiding officer under 'the statute of Victoria will 
 entitle the plaintiff (independently of the County Court Acts) to 
 full costs {q). 
 
 Where to an action for a libel in a newspaper the defendant 
 pleaded the insertion of an apology and payment of 40s. into court 
 {ante, p. 815), and the jury found that the apology was not suffi- 
 cient, but thaUhe money paid into court was sufficient to cover the 
 damage sustained, and thereupon the judge directed a verdict for 
 
 in) Skmner v. Shoppee, 8 Sc. 276 ; 6 2 Or. M. & K. 249. MwrshM v. Martin, 
 •/^''S- ^^^- ^- K-. 5 Q. B. 239. 
 
 (o) Freanj. Sm-gent, 2 H.. & 0. 293; (9) Buiry y. Per,-y, ut sup. Turner y. 
 
 U,\ pi' ^"""^^^^ r. T! AT a ,n, ^'"■*""' ^^™?^' 132; WiUcs, 438. Foster 
 
 30 £aw J., C. P. 16. Goodall v. Fnsell, note to Craft v. Boite, 246 a. 
 
SECT. 2.] CEETIFICA.TE FOE. 1011 
 
 the plaintiff with Is. damages, it was held that the plaintiff was 
 deprived of costs, and that, the plea not being proved, the payment 
 into court was not warranted by law, . and the defendant ought to 
 have his money back again (r). The damages in such cases must 
 be assessed wholly irrespective of the plea, which is not proved ; 
 the jury may give less or more than the amount paid in, and 
 according to what they give will the plaintiff be entitled to costs or 
 the contrary (s). 
 
 When the certificate of a judge or presiding officer is necessary to 
 enable the plai7itiff to recover costs. — By the 43 Eliz. c. 6, s. 2, it was 
 enacted, that in any personal action in the superior courts (not 
 being for any title or interest in land, or for any battery), the 
 plaintiff should not recover more costs than damages where the 
 damages recovered did not amount to 40s. But the 3 & 4 Vict. 
 c. 24, s. 1, repealed the above statute so far as it relates to costs 
 in actions of trespass or on the case, and therefore practically 
 altogether, so far as actions of tort are concerned (i!). It also 
 repealed so much of 22 & 23 Car. 2, c. 9, as relates to costs in 
 personal actions, and enacts (s. 2), that if the plaintiff in any 
 action of trespass or trespass on the case in any of the courts at 
 Westminster, or the Court of Common Pleas at Lancaster or 
 Durham, shall recover by the verdict of a jury less than 40s. 
 damages, the plaintiff shall not be entitled to recover any costs 
 whatever, whether it shall be given upon an issue tried, or judg- 
 ment shall have passed by default, unless the judge or presiding 
 officer before whom such verdict shall be obtained, shall immedi- 
 ately afterwards certify on the back of the record, or on the writ of 
 trial, or writ of inquiry, that the' action was really brought to try 
 a right, besides the mere right to recover damages for the trespass 
 or grievance for which the action has been brought, or that the 
 trespass or grievance in respect of which the action is brought was 
 wilful and malicious. See post, p. 1017. 
 
 Under this statute, the under-sheriff who presides at a writ of 
 inquiry of damages after judgment by default may grant the 
 certificate, but he should sign it in the name of the sheriff, and not 
 in his own name {u). 
 
 Certificate that the action was brought to try a n^^iS.— Wherever 
 a defendant in an action for a trespass upon the plaintiff's land 
 sets up a bond fide claim to the enjoyment of some easement, 
 privilege, or profit thereon, such a right^ to take water from the 
 plaintiff's well, or to dig turves on the plaintiff's common, and has 
 
 (r) Lafone v. Smith, 4 H. & N. 158. cumstances, in actions of detinue, which 
 
 Newton v. Rowe, 1 G. B. 187. is in form an action ex contractu, though 
 
 (s) Jones T. Maekie, L. R, 3 Exch. 1. the gist of the action is the wrongful de- 
 
 (t) See Mnby v. Lamh, 11 0. B., N. S. tainer. S. O. 
 
 423; except, perhaps, under certain cir- («) Stroud v. WaUs, 2 C. B. 929. 
 
 T T T 2 
 
1012 COSTS. [CHAP. XXII. 
 
 any colourable ground for the claim, the action is brought to try a 
 right, and the judge or presiding officer ought to certify to that 
 effect upon the record (x). lii actions for a nuisance, there is in 
 general a question of right between the parties. The action may 
 be brought to recover damages for the infringement of an acknow- 
 ledged right, or to try whether the defendant has a right to do the 
 act of which the plaintiff complains. In actions for a nuisance to 
 a house, where the plaintiff asserts his right to occupy his house 
 free from the nuisance caused by the defendant, and the latter 
 declares that the acts complained of are not a nuisance, a right 
 beyond the mere right to recover damages comes in question, and 
 the judge has power to certify. 
 
 An action may be brought to try a right, though nothing 
 appears on the record to indicate such an intention. Wherever 
 the plaintiff seeks to negative the right of the defendant to do the 
 act of which he complains, the action may be brought to try a right 
 beyond the mere question of damages {y). " Suppose," obseiTCS 
 Tind3.1, C. J., " a case can be put of a declaration in trespass or 
 case (although I do not think it can) in which a right could not by 
 possibility come in question, still, if it should appear to the judge 
 that the plaintiff had really intended to try a right, I conceive 
 that the judge would have power to certify. If an action be really 
 brought to try a right, whether it is calculated for that purpose or 
 not, the party is within the letter, and, as it seems to me, also 
 within the spirit, of the Act " (z). 
 
 Wherever the record is so framed that a right beyond the mere 
 right to recover damages mcdy come in question, the court will not 
 inquire whether or not the judge has exercised a. sound discretion 
 in granting a certificate. It is a matter entirely for the discretion 
 of the judge, upon the^effect of the evidence and the course taken 
 at the trial (a). 
 
 Within what time the certificate must he granted. — The words 
 " immediately afterwards," in s. 2 of the 3 & 4 Vict. c. 24, do not 
 mean that the certificate is to be granted the very instaht after- 
 wards. " We interpret the words to mean," observes Lord Abinger, 
 'f within such reasonable time as will exclude the danger of inter- 
 vening facts operating upon the mind of the judge, so as to disturb 
 the impression made upon it by the evidence in the cause." 
 Where, therefore, the certificate was given by the judge after the 
 jury had been dismissed, and the court adjourned, and the judge, 
 had retired to his lodgings in the town, it was held that the certifi- 
 
 (x) Tyl^ y. Bennett, 5 Ad. & E. 377. (s) Morison t. Salmon, 2 M. & Gr 394 
 
 ooX^^ ^^^^^^orth V. CocJcer, 1 M. & Gr, 1 ^. & Gr. 8^7 
 otJy ; 2 oc. N. K, 47 
 
SECT. 2.] COUNTY COUKT ACTS. 1013 
 
 cate was well giveu (6). So where the under-sheriff, as presiding 
 officer, on the execution of a writ of inquiry, on being asked for a 
 certificate, said he would take time to consider, and adjourned the 
 court, and sxibsequently in the evening of the same day gave a 
 certificate, it was held that the time taken by the under-sheriff 
 to consider his judgment was perfectly reasonable. "I do not," 
 observes Lord Abinger, " limit the reasonable time to the interval 
 before the trial of another cause, or even neoessaply to the same 
 day " (c). But whenever the under-sheriff certifies, the certificate 
 must be given before the return of the writ of inquiry {d). And 
 a certificate not applied for till ten days after the trial cannot be 
 granted (e). Where under a local statute, the London Small Debts 
 Act(/), the certificate was to be granted "forthwith," and the 
 judge took time to consider before he granted it, and the defendant 
 did not object, it was held that he must be taken to have assented 
 to the course pursued by the judge {g). 
 
 Where, on an application for a certificate under the above 
 statute, the judge said that he would certify, if necessary, that the 
 right came in question, and made a memorandum to that effect on 
 his notes, it was held that a certificate siibsequently indorsed on 
 the record, had the same effect as if it had been indorsed at the 
 trial Qi). 
 
 Cowrdy Court Acts dejpriving the -plaintif of costs in the superior 
 courts. — ^By the 30 & 31 Vict. c. 142, which was passed on 20th 
 August, 1867, but came into operation on the 1st January, 
 1868 {i) (s. 33 and sched. C), all the sections of previous county 
 court acts as to costs are repealed {j), and by s. 5 it is enacted, 
 that " if in any action commenced -after the passing of this Act in 
 any of Her Majesty's superior courts of record, the plaintiff shall 
 recover a sum not exceeding 20/. if the action is founded on 
 contract, or 10/. if founded on tort (k), whether by verdict, 
 judgment by default, or on demurrer (J), or otherwise, he shall not 
 be entitled to any costs of suit, unless the judge certify on the 
 
 (J) Thompson v. Gibson, 8 M. & W. Q. B. 335. Levi v. Sanderson, L. E., 4 
 
 287. ~ Q. B. 330. Mount v. TayUyr, L. E., 3 C. 
 
 (c) Page v. Pearce, 8 M. & W. 679. P. 645. 
 
 (d) Knapman v. Pryer, 1 H. & N. 721. {k) As to detinue, see Danby v. Lamb, 
 
 (e) Forsdylce v. Stone, L. E., 3 C. P. ante, p. 1011, in notis. 
 
 607. (l) Tiie prohibition as regards costs was 
 
 (/) 15 & 16 Vict. 0. Ixxvii., s. 121, held under the repealed Acta to apply to 
 
 which has been repealed by 30 & 31 Vict. issues of law as well as of fact, so that if 
 
 c. 142, s. 33, and sched. C. in an action of tort there was an issue of 
 
 {g) Scden \. Atlantic Mail, <&c., Co., 29 fact and an issue of law, both of which 
 
 Law J., Q. B. 191. were detei-mined in favour of the plaintiff, 
 
 (h) Jones v. Williams, 13 M. & W. but the damages recovered were less than 
 
 423. the statutable amount, the plaintifB was 
 
 (i) See Wood v. Jiiley, L. K., 3 C. P. wholly deprived of costs, unless he ob- 
 
 26. Ings v. Land, and South- West. Rail. tained an order or a certificate. Dunston 
 
 Co., L. It., 4 C. P. 17. V. Palerson, 5 C. B., N. S. 279. AUey v. 
 
 (j) See Butcher v. Henderson, L. E., 3 Dale, 11 C. B. 893. 
 
1014 COSTS. [CHAP. XXII. 
 
 record {m) that there was sufficient reason for bringing suet action 
 in such superior court, or unless the court or a, judge at chambers 
 shall, by rule or order, ^allow such costs." 
 
 It has been held that this section applies to actions which have 
 been commenced in an inferior coiirt, but have been removed into 
 a superior court by certiorari (n); d fortiori therefore to actions 
 which have been commenced in a superior court, but have been 
 sent for trial before a county court judge under 19 & 20 Vict, 
 c. 108, s. 20 (o). It also applies to actions referred by consent to 
 an arbitrator who is to have the power of a judge at nisi prius as to 
 certifying, &c. {p). It has been held also that it applies to all 
 actions, both to those which can and to those wliich cannot 
 be brought in the county court {q), but that if the plaintiff in an 
 action of slander recovers any amount beyond 40s., inasmuch as he 
 could not have sued in the county court (r), he ought, in the 
 absence of circumstances showing that the action was vexatious, or 
 of a trumpery character, or that the- amount given was too large, 
 &c. (s), to be allowed his costs, under 'the general power given by 
 the concluding words of the section, although the judge had refused 
 to certify (t). It is no ground for the exercise of the discretion of 
 the court under the above section, that the plaintiff was misled by 
 the registrar of the county court, or that the expense and delay of 
 the proceedings in the county court would have exceeded those of 
 the proceedings in the superior court (v), or that the parties reside 
 a long way from one another (v). 
 
 When the fonbiidation of the action is a contract, and no right to 
 sue exists independently of the contract, the action, though in form 
 ex delicto, is in substance an action ex contractu, and the plaintiff 
 nmst recover more than 20^., or obtain a certificate, rule, or order, 
 in order to entitle himself to costs in the superior courts (w). 
 
 When money has heen paid into court not. exceeding 2QI. or lOZ., 
 as the case maybe, and the plaintiff accepts it in satisfaction of the 
 cause of action, ho cannot get any costs, as he has not recovered 
 more than the amount mentioned in the Act (x) ; but if he pays in 
 more than 2QI. or 10^., the plaintiff will then be entitled to his costs. 
 And if the amount recovered in the action, together with the 
 amount paid into court, exceeds the amount mentioned, the plaintiff 
 
 m) See Jones v. WMiams, swpra. Sampson v. Mackay, L. B., 4 Q. B. 643 ; 
 
 m) Pellaa v. Bresslauer, L. E., 6 Q. B. 38 Law J., Q. B. 245. Hinde \.r 
 
 438. •post, p. 1016. 
 
 (o) Taylor v. Oass, L. E., 4 C. P. 614. {u)- Holborow y. Jones, L. B., 4 0. P.14. 
 
 (p) SarXand t. Mayor, &c., of New- (v) Thompson t. Dallas, L. B., 3 Q. B. 
 
 eastle-on-Tyne, L. B., S Q. B. 47. 859. 
 
 (g) Craven v. Smith, L. B., 4 Exch. {w) legge v. Tudxr, 1 H. & N. 500 ; 26 
 
 146 ; 38 Law J., Exch. 90. Law J., Exch. 71. 
 
 (r) See post, p. 1016. {x) Brnddimg v, Tyler, ,3 B. & S. 472 
 
 (s) Sampson v. Mackay, infra. 82 Law J., Q. B. 85. Pmr T. LiUiwam, 
 
 (t) Gray v. West, L. B., 4 Q. B. 175, ib. Exch. 161, 
 
SECT. 2.] COUNTY COURT ACTS — CERTIFICATE. 1015 
 
 will be entitled to his costs. What the legislature meant by the 
 word " ' recover ' was what the plaintiff is to get and put into his 
 pocket" {y) by means of the action; and therefore, if the action is 
 referred, although by consent, and the arbitrator awards a sum less 
 or more than 20?. or 10/., as the case may be, the plaintiff will be 
 entitled to or deprived of his costs accordingly (»). If the cause is 
 referred compulsorily, the same rule holds, both with regard to the 
 costs of the cause and also the costs of the reference or award, 
 which in such a case form part and parcel of the costs of the 
 cause (a). Where, however, an action is referred by consent, and 
 the costs of the reference are in the discretion of the arbitrator, the 
 plaintiff will be entitled to them if the arbitrator so awards, although 
 he recover less than the statutable amount, and so cannot have the 
 costs of the cause (b). If the reference is of the cause and all 
 matters in difference, and the submission states that the costs are to 
 follow " the event of the reference," and the arbitrator finds, on a 
 balance of accounts, less than the statutable amount due to the 
 plaintiff, the plaintiff may nevertheless obtain his costs if the 
 arbitrator so decides, for he cannot be said to " recover " such 
 amount within the meaning of the County Courts Act (c). 
 
 Where an action is brought against a common carrier for breach 
 of the common-law duty to carry safely, the action is not founded 
 on contract, but is an action ex delicto for negligence. It is an 
 action on the case, and, therefore, if the plaintifffecovers more than 
 lOZ., he is entitled to his costs (d). Where the plaintiff in the first 
 count of his declaration complained of an assault, and in the second 
 count of slander, and recovered less than the statutable amount on 
 the first count,, but failed on the second, it was held that he was 
 entitled to no costs without a certificate or judge's order (e). 
 
 The certificate that it appeared to the judge that there was sufficient 
 reason for bringing the action in the superior court is very much a 
 matter of discretion with the judge. There is no rule to guide him, 
 but he must form his own opinion from the materials before him at 
 the trial, and the court will not review his decision where the 
 question is one of damages only (/). Where, however, an action is 
 brought to try a right, and the right is of sufficient importance to 
 make the action one proper to be brought in a superior court, the 
 judge ought to Certify, and if he does not, his decision will be 
 
 («) Gowms V. Moore, 3 H. & N. 540. (d) Tattan v. Qt. West. Rail. Co., 29 
 
 fe) Cowdl V. Amman OoU. Co., 34 Law Law J.,' Q. B. 184. 
 J Q B. 16X. See post, p. 1017. (e) Smith v. Bamor, 3 0. B., N. S. 
 
 "{a) Moore t. Watson, L. B., 2 C. P. 829. r • , w «, -kt „«- 
 
 32^. (/) Hatch t. Levns, 7 H. & N. 367; 
 
 (b) Farshaw v. De Wette, L. K., 6 31 Law J., Exch. 26. Dimsdale v. Lond., 
 
 Exish 200 Brighton, and South Coast Badl. Co., 11 
 
 (c)' Stevens v. Chowan, L. R., 6 Bxch, W. K., Q. B. 729. 
 213. 
 
1016 COSTS. [CHAP. XXII 
 
 reviewed {g). The certificate, when granted, does not in anywise 
 modify or control s. 2 of the 3 & 4 Vict. c. 24 {ante, p. 1011), for 
 the discouragement of trifling and vexatious suits. Therefore, if 
 such a certificate be obtained in a case where a less sum that 40s. 
 is recovered in an action for a wrong, the plaintiff cannot get his 
 costs without the further certificate that the action was brought to 
 try a right, or that the grievance was wilful and malicious {li). A 
 judge may, under this statute, it would seem, certify for costs 
 at any time before taxation (j) ; but the under-sheriff, or presiding 
 officer on a writ of trial, must probably certify before the writ is 
 returned Qc). 
 
 If it appears that the cause of action was one for which a plaint 
 could not have been entered in the county court, although the 
 judge or presiding officer should refuse to certify, the plaintiff wiU, 
 generally speaking, obtain an order for his costs as above men- 
 tioned il). Where, under -the repealed Acts, an action was brought 
 in a superior court for the detention of goods exceeding the value 
 of 50^., and the goods were returned to, and taken back by, the 
 defendant after action, and the plaintiff went on with the action to 
 recover further damages, and his costs, and obtained a verdict for a 
 shilling damages, but the jury found that the value of the goods 
 detained exceeded 50^., it was held that the plaintiff was entitled to 
 judgment for his costs, as no plaint would lie in the county court 
 for goods of the value assessed (m). But where an action of trover 
 was brought for the detention of a portmanteau of the value of 251. 
 for a claim of Is. &d., and the portmanteau was delivered up to the 
 plaintiff, and received back by him in court, and the jury then gave 
 a verdict for 40s. damages, and the plaintiff failed to take a verdict 
 for the value of the portmanteau, it was held that an order for 
 costs could not be made, as a plaint could have been entered in the 
 county coiirt, and no sufficient reason was shown for bringing the 
 action in the superior court (w). 
 
 Costs on references. — Neither the 21 Jac. 1, c. 16 {ante, p. 1009), 
 nor the 3 & 4 Vict. c. 24, apply to cases where, before trial, an action 
 is referred by consent, or {semhle) compulsorily, and where conse- 
 quently no verdict is given (o). But where a verdict is taken, sub- 
 ject to a reference, they do, the verdict in such a case being the 
 verdict of the jury, and the arbitrator merely determining the 
 
 {g) ffinde v. Shejapard, L. E., 7 Bxch. {t) Ante,p.l0\4. And eee MaedtmgaU 
 
 71- V. Pateraim, 11 C. B. 773, decided under 
 
 th) PowU V. Oaniiy, 7 C. B., N. S. 556. the repealed sections. 
 
 (i) Martin, B., Mason v. Tucker, 4 H. (m) Leader v. Ehys, 10 C. B., N. S. 
 
 & N. 538. Bennett v. Thompson, 6 Ell. 369 ; 30 Law J., C. P. 345. 
 
 & Bl. 683 ; 25 Law J., Q. B. 378. (n) Dimidcde v. Land, and Brighton 
 
 (k) Ante, p. 1013. Craven t. Smith, Rail. Co., 11 "W. E., Q. B. 729. 
 
 ante, p. 1014. (o) Wigens v. Cooh, 6 C. B., N. S. 784. 
 
SECT. 2.] WILFUL OR MALICIOUS TRESPASS. 1017 
 
 amount {p). But under the County Court Acts there is no distinc- 
 tion in this respect between causes referred, either before or after 
 verdict (<?). When the cause has been referred, therefore, the 
 plaintiff cannot obtain judgment for his costs, unless he recovers, 
 through the instrumentality of the award and the verdict, a suffi- 
 cient sum to carry costs under those acts (r). So in the case of a 
 compulsory order of reference, in the common form, made under the 
 Common Law Procedure Act, 1854, 17 & 18 Yict. c. 125, by which 
 the costs of the cause are to abide the event, if the plaintiff recovers 
 less than the statutable amount mentioned in the act, he is not 
 entitled to his costs without a rule or order for them (s). 
 
 Costs of reference. — Whenever on a reference before issue joined 
 the costs are to abide the event, and the plaintiff succeeds as to a 
 very small part of the claim for which he brings his action, and 
 fails as to the greater part of it, he is not entitled, as against the 
 defendant, to the costs of the reference, for the event, in such a 
 case, is substantially in favour of the defendant (<). It is otherwise 
 on a reference after issue joined (w). But if the plaintiff recovers 
 less than the amount mentioned in the County Court Acts in a 
 cause compulsorily referred under the Common Law Procedure Act, 
 1854 (17. & 18 Vict. c. 125), he is not entitled to the costs of the 
 reference {x). 
 
 Certificate for full costs in actions for wilful and malicious grie~ 
 vances. — The 3 & 4 Vict. c. 24, s. 2, which deprives plaintiffs in the 
 superior and palatine courts of their costs, if they recover by the 
 verdict of a jury less than 40s., excepts cases in which the judge or 
 presiding officer (ante, p. 1011) immediately afterwards certifies on 
 the back of the record, &c., that the trespass or grievance in respect 
 of which the action was brought was wilful and malicious. When- 
 ever the judge certifies that the grievance for which the action was 
 brought was wilful and malicious, the plaintiff is entitled to his costs 
 under this statute. This has been held to be the case in an action 
 for libel, where the plaintiff recovered a farthing damages, and the 
 judge certified that the grievance was wilful and malicious (y). If 
 a man inadvertently walk across another person's close, and the 
 latter bring an action, the action would be frivolous, and the judge 
 ought not to certify. But if the walking across the close "be proved 
 to have been done audaciously, and with a view of annoying the 
 owner or his family, then the judge would be justified in granting 
 
 (p) Sdd V. AMj/, 1 3 C. B. 897. («) Kdcei/ v. Stuppks, 32 Law J., Exch. 
 
 (g) CoioeU T. Amman CoU. Co., ante, 6. 
 
 p. 1015. («) Wigene v, Cooh, supra. 
 
 (r) Smith v. £dge, 2 H. & C. 659 ; 33 (aj) Mooi-e y. Watson, L. E., 2 C. P. 
 
 Law J., Exch. 9. But nee Stevens v. 314. 
 
 Chapman, ante, p. 1015. (y) Foster v. Pointer, 9 C. & P. 721 : 8 
 
 («) Robertson v. Sterne, 13 C. B., N, S. M. & W. 398. 
 248. See ante, p. 1015. 
 
1018 COSTS, [CHAP. XXII, 
 
 the plaintiff a certificate that the trespass was wilful and mali- 
 cious (z). A trespass which is committed after notice may fairly 
 be deemed to be a wilful and malicious trespass. Originally the 
 judges considered themselves absolutely bound to certify in all 
 cases where the trespass was after notice, but it is now held that 
 the judge has a discretion in the matter ; but the discretion wUl 
 generally be exercised in favour of the plaintiff when notice has 
 been given. Where the defendant went to the plaintiff's house to 
 make a seizure under process from the county court, and, being 
 refused admittance, unlawfully broke open the outer door of the 
 plaintiff's house with an axe, after a warning not to do so, and the 
 jury gave only 40s. damages, the judge certified that the trespass 
 was wilful and malicious, so as to give the plaintiff his full costs (a). 
 
 Full costs in actions for wilful and malicious trespass, or after 
 notice not to trespass. — By 8 & 9 Wm. 3, c. 11, s. 4, it is enacted, 
 that in all actions of trespass in any of her Majesty's Courts of 
 Eecord at Westminster, wherein at the trial of the cause it shall 
 appear and be certified by the judge under his hand, upon the back 
 of the record, that the trespass upon which any defendant shall be 
 found guilty, was wilful and malicious, the plaintiff shall recover 
 not only his damages but his full costs of suit. And the 3 & 4 
 Vict. c. 24, s. 2 (supra), excepts cases where the judge certifies that 
 the trespass was wilful and malicious. 
 
 But the 3 & 4 Vict. c. 24 (ante, p. 1011), further enacts (s. 3), 
 that nothing therein contained shall deprive any plaintiff of costs 
 in any actions brought for a trespass over lands, commons, wastes, 
 closes, woods, plantations, or inclosures, or for entering into any 
 dwellings, outbuildings, or premises, in respect of which any notice 
 not to trespass thereon or therein shaU have been previously served 
 by or on behalf of the owner or occupier of the land trespassed over 
 or upon, or left at the last reputed or known place of abode of the 
 defendant or defendants in such action. The plaintiff, therefore, is, 
 under this section, entitled as of right to his full costs in an action 
 for, a trespass committed after notice, though he recover less than 
 40s. damages, and though the judge has refused to certify. The 
 proper course for the plaintiff to adopt to entitle himself to costs is 
 by entering a suggestion on the record, to the effect that the tres- 
 pass was committed after n'otice, leaving the defendant to traverse 
 the suggestion if so advised (J). If the defendant has a right of 
 way over the plaintiff's land, a general notice not to trespass will 
 not entitle the plaintiff to his costs under this section. The notice 
 should be framed so ag to warn the defendant not to deviate from 
 
 (z) Shuttleworih v. Coclcer, 1 M. & Gr. (o) SJieninn \. SwmdaU, 12 M & W 
 
 836. 783. 
 
 (5) Btiwyer v. Cooh, i C, B. 236, 
 
SECT. 2.] AGAINST JUSTICES OR CONSTABLES. 1019 
 
 the way. " The plaintiff/' observes Patteson, J., " should say in 
 effect. It is true you have a right of way over a particular part of 
 the close, but you are to take care that you do not go out of that 
 way. Here he has given a notice not to come upon the close at 
 aU"(c). 
 
 Costs in the superior courts in actions against justices. — By 11 & 
 12 Vict. c. 44, s. 14, it is enacted, that if the plaintiff in an action 
 against a justice of the peace for anything done by him in the 
 execution of his of&ce recovers a verdict, or the defendant allows 
 judgment to pass against him by default, the plaintiff shall be 
 entitled to costs as if the Act had not been passed ; or if, in such 
 case, it be stated in the declaration, or in the summons and parti- 
 culars in a county court action, that the act complained of- was done 
 maliciously and without reasonable or probable cause, the plaintiff, 
 if he recover a verdict for any damages, or if the defendant allow 
 judgment to pass against him by default, shall be entitled to his 
 full costs of suit, to be taxed as between attorney and client ; and 
 that in every action against a justice of the peace for anything done 
 by him in the execution of his office, the defendant, if he obtain 
 judgment upon verdict, or otherwise, shall in all cases be entitled 
 to his full costs in that behalf, to be taxed as between attorney and 
 client. The exception to the above rule contained in s, 13 has been 
 mentioned, ante, p. 733. 
 
 The 24 Geo. 2, c. 44, s. 6, enacts, as we have seen, that the con- 
 stable or officer executing a justice's warrant shall, in a certain 
 event,^be sued only in conjunction with the justice or justices who 
 issued the warrant, and that the jury on proof of the warrant shall 
 find for the constable {ante, p. 720) ; and as regards the costs it is 
 enacted, that if the verdict be given against the justice, the plain- 
 tiff shall recover his costs, to be taxed so as to include the costs the 
 plaintiff is liable to pay to the defendant for whom such verdict 
 shall be found. 
 
 In actions against constables and officers, and parties acting or 
 intending to act in the execution of statutory powers, such as those 
 contained in the 1 & 2 Wm. 4, c. 41, the plaintiff, though he 
 obtains a verdict, cannot (s. 19) recover, any costs from the defen- 
 dant unless the judge before whom the trial takes place certifies his 
 approbation of the action and of the verdict ; and generally when 
 aji action is brought against, a constable or a police-officer, or against 
 private individuals, for anything- done in pursuance of an Act of 
 Parliament, ox with the hondfide intention of executing the provi- 
 sions of some particular statute, and a verdict passes for the defen- 
 dant, or the plaintiff becomes nonsuit or discontinues the action 
 
 (c) Bourne v. Alcoch, i Q. B. 625. 
 
1020 COSTS. [chap. XXII. 
 
 after issue joined, or if, upon demurrer or otherwise, judgment is 
 given against the plaintiff, the defendant is entitled to recover his 
 full costs as between attorney and client, and has the like remedy 
 for the same as any defendant has in ordinary cases (d). . 
 
 Certificate for costs in actions for things done in supposed pur- 
 suance of the Act for the protection of property from malicious 
 injuries. — By the 71st section of the 24 & 25 Vict. s. 97, it is 
 enacted, that though a verdict. shall be given fer the plaintiff in an 
 action against any person for anything done in pursuance of the 
 Act, such plaintiff shall not h^ve costs against the defendant unless 
 the judge before whom the trial shall be shall certify his approba- 
 tion of the action. If, therefore, the' judge does not at the trial 
 give a certificate of approbation in conformity with the statute, the 
 defendant is entitled to a suggestion of the fact on the record, 
 in order to deprive the plaintiff of costs which he would otherwise 
 recover («). 
 
 Costs in actions against executors. — By 3 & 4 Wm. -4, c. 42, s. 31, 
 it is enacted, that in every action brought by any executor or ad- 
 ministrator in right of the testator or intestate, such executor or 
 administrator shall, unless the court in which such action is brought, 
 or a judge of any of the superior courts, shall otherwise order, be 
 liable to pay costs to the defendant in case of being nonsuited, or a 
 verdict passing against him, and in all other cases in which he would 
 be liable if he were suing in his own right Upon a cause of action 
 accruing to himself; and the defendant shall have judgment for 
 such costs, and. they shall be recovered in like manner (/). 
 
 Costs in actions for duties and penalties at the suit of the' Crown. 
 ■ — By 16 & 17 Vict. c. 107, s. 263, it is enacted, that in aU suits or 
 proceedings at the suit of the Grown for the recovery of any duty or 
 penalty, or the enforcement of any forfeiture under that Act, or any 
 Act relating to the customs, the parties thereto shall be entitled to re- 
 cover costs against each other, in the same manner as if such suits 
 or proceedings were conducted and had between subject and subject. 
 
 In actions upon judgments, the plaintiff is not entitled to any 
 costs of suit unless the court in which the action is brought, 
 or some judge of the same court, makes an order for costs, 43 Geo. 
 3, c. 46, s. 4. And the 31 & 32 Vict. c. 54, which enables Scotch 
 and Irish .judgments to be registered in England, and vice versd, 
 contains a similar provision (s. 6). But these statutes apply only 
 where the action is brought on the judgment alone. Where, there- 
 fore, a declaration contained two counts, one on a judgment, and 
 another on a separate and distinct cause of action, and the plain- 
 
 {d) See 5 & 6 Wm. 4, c. 76, g. 133. 41st section of the repealed Act, 7-& 8 
 
 (e) Norwood v. PUt, 5 H. & N. 801 ; 28 ' Geo. 4, o. 30. 
 Law J., Exoh. 212 ; decided under the (/) See Gray on Costs, 227—235. 
 
SECT. 2.] ON NEW TRIALS, APPEALS, ETC. 1021 
 
 tiff succeeded on both counts, it was held that he was entitled to 
 his full ciosts without any order (jj). 
 
 Costs on new trials. — If a. new trial be granted without any 
 mention of costs in the rule, the costs of the first trial will not be 
 allowed to the successful party, though he succeed on the second (A). 
 In the case of a new trial granted by reason of the misdirection of 
 the jiidge, in an action in the superior courts, the party who suc- 
 ceeds in obtaining the rule absolute gets no costs. And where the 
 judgment of the court below is reversed in a court of error, 
 inasmuch as the judgment is not given for the defendant, -but 
 merely that the plaintiff nil capiat per hreve,' the statutes which 
 give costs to the successful party in actions brought in the superior 
 courts do not apply (i). 
 
 In cases of appeals from the decision of a county- court judge, or 
 judge of an inferior tribunal (k), it is. entirely in the discretion 
 of the court to make such order with respect to costs as it thinks 
 fit. " The rule," observes Willes, J., " which will in future be 
 adopted, in this court, is, that the successful party, whether appel- 
 lant or respondent, will be entitled to his costs, unless there are 
 some special circumstances which take the case out of the general 
 rule ; for we do not think that there is, for the purpose of costs, any 
 analogy between the case of a hew trial obtained by reason of the 
 misdirection of a judge in an action brought in one of the su- 
 perior courts, and an appeal from a county court on the ground of 
 misdirection " (I). But the costs must be asked for at the time the 
 case is disposed of (m). If the judgment below be reversed, that 
 part of it that deals with costs will be reversed also (n). 
 
 In the case of an appeal to the Privy Council from the decision 
 of the judge of the Court of Admiralty, the Privy Council, having 
 reversed the decision, gave the appellant not only his costs of 
 appeal, but also the costs in the court below, saying that the 
 unsuccessful party must take the consequences of bringing an 
 action which he could not sustain (o). 
 
 In the case of an appeal from a superior court to the Court of 
 Exchegn,er Chamber, the general • rule is, that costs follow the 
 affirmance of the judgment below ; but when the court is equally 
 divided there can be no judgment for costs {p\ 
 
 {g) Jackson v. Everett, 1 B. & S. 857 ; ing from Qee t. Lane. & York. Sail Co 
 
 31 Law J., Q. B. 59. 6 H. & N. 221 ; 30 Law J., Exoh'. ll! 
 
 (A) Eeg. Gen. Hil. Term, 1853, R. 54; Conybea/re v. Farnes, L. R., 5 Exch. 16 
 
 1 Ell. & Bl. App. xii. (m) Taylor v. Gt. North. Rail. Co.,'h. K 
 
 (i) Schroder t. Ward, 13 C. B., N. S. 1 0. P. 430. Budenherg v. Roberts L B 
 
 410 ; 32 Law J., 0. P. 150. 2 0. P. 292. ' ' '' 
 
 {h) As to costs on appeals against the (re) Gage v. OoUins, L. R., 2 C. P. 381. 
 
 decisions of magistrates, see Wednlesbwy (o) Valentine v. Oleugh, 8 Moo. P. C. 
 
 Board of Health V. Stephenson, 33 haw J., 0. 16/ ; and see 7 ii. 'Appendix. 
 
 M. C. 111. (p) Archer v. James, 2 B. & S. 61. 
 
 (I) Schroder v. Ward, ut *up., dissent- 
 
1022 COSTS. • [chap. XXII, 
 
 Costs on removal . of actions hy vjrit of certiorari. — When an 
 action ex contractu is removed by certiorari (ante, p. 642), the 
 plaintiff is not bound to follow the action into the superior courts. 
 If, therefore, the plaintiff fails to proceed, the defendant has no 
 means of getting judgment for his costs (q). If, however, the 
 plaintiff proceeds with the action so removed and obtains a verdict, 
 he will be entitled to his full costs, to be taxed on the higher scale, 
 though he recovers less than 201. (r). 
 
 In cases of prohibition, a plaintiff for whom a verdict is given 
 by the jury is not entitled to recover the costs of the proceedings 
 in the court below as damages under the 1 Wm. 4, c. 21 s. 1 (s). 
 
 On indictments for libel and slander, preferred by a private 
 prosecutor, if judgment is given for the defendant, the defendant 
 is entitled to his costs ; but if there be a special plea of justifica- 
 tion, and the issue thereon be found for the prosecutor, the latter 
 will be entitled to recover from the defendant the costs he has sus- 
 tained by reason of such plea, 6 & 7 Vict. c. 96, s. 8. 
 
 Costs of writs of mandamus and injunction. — By the Common 
 Law Procedure Act, 1860, 23 & 24 Vict. e. 126 -(s. 32), it is enacted, 
 that when a writ of mandamus or of injunction is issued under the 
 provisions of the Common Law Procedure Act, 1854 {post, ch. 23), 
 such writ shall, unless otherwise ordered by the court or a judge, 
 in addition to the matter directed to be inserted therein, command 
 the defendant to pay to the plaintiff the costs of preparing, issuing, 
 and serving such writ ; and payment of such costs may be enforced 
 in the same manner as costs payable under a rule of court. 
 
 On an application for an injunction under the Baihoayand 
 Canal Trafk Act, costs will be awarded to the successful applicant, 
 for the court wUl not without strong reason depart from the rule, 
 that when a company has so acted as to make it proper for any 
 person to come to the court for relief under the statute, that relief 
 ought to be obtained at the costs of those whose acts have occa- 
 sioned the application (f). 
 
 Repeal of divers statutes enabling plaintiffs in certain actions to 
 recover double costs.— By the 5 & 6 Vict. c. 97, s. 1, it is enacted, 
 that so much of any clause or enactment in any local an'd personal 
 Act, or in any Act of a local or personal nature, whereby it is enacted 
 that either double or treble costs, or any other than the usual 
 costs between party and party, may be recovered, shall be repealed, 
 and in lieu thereof the usual costs between party and party may 
 be recovered, and no more. And (s 2) that so much of any enact- 
 
 {q) Gwrton r. Gt. West. Sail. Co., 28 (s) ^Vhitey. Steel, 12 C. B., N S 383- 
 
 Law J., Q.. B. 103. 32 Law .7., C. P. 1. ' 
 
 (r) Perry t. Bennett, 14 0. B., N. S. (t) Baxendale v. Land. & SouthrWest 
 
 ^02. Rafi. Co., 12 C. B., N. S. 758. 
 
SECT. 2.] IN COMPENSATION CASES. 1023 
 
 ment in any public Act, not local or personal^ whereby it is enacted 
 that either double or treble costs, or any other than the usual costs 
 between party and party, may be recovered, shall be repealed, and 
 instead of such costs the party shall receive such full and reason- 
 able indemnity as to all costs, charges, and expenses incurred in 
 and about any action or other legal proceeding as shall be taxed by 
 the proper officer in that behalf. 
 
 No double costs in error are to be allowed to either party (w). 
 
 Costs in compensation cases («). — An offer of compensation by a 
 railway company to a person whose land has been injuriously 
 affected by the construction of a railway (ante, p. 751), must be made 
 at least ten days before the holding of the inquisition of damages 
 {ante, p.755), in order to throw upon the party seeking compensation, 
 and not obtaining more than the sum offered, the burthen of paying 
 his own costs (y). There is nothing, however, to prevent the com- 
 pany from subsequently making a larger offer, provided they make 
 it in time, and if the aggregate of the sums recovered by the 
 claimant does not exceed the aggregate of the sums so offered by the 
 company, he will not be entitled to his costs (z). The offer must 
 be unconditionaL An offer of one sum for compensation and costs 
 is, therefore, bad (a). In the case of a landowner, whose land has 
 been severed, demanding a communication to be made, and the 
 company preferring to take to the land as being of less value than 
 the expense of. making the communication, the Act makes no pro- 
 vision as to costs (5). A person whose lands are injuriously 
 affected, and who recovers by the verdict of a jury under s. 68 of 
 the 8 & 9 Vict. c. 18, more than the company offered is entitled to 
 the costs of the inquiry (c). 
 
 Taoaation of costs. — By the Common Law Procedure Act, 1852, 
 15 & 16 Vict c. 76 (s. 223), the judges, or eight or more of them, 
 with their chiefs, are empowered to make general rules and orders 
 for fixing costs, apportioning costs of issues, and for enforcing uni- 
 formity of practice in the allowance of costs. " Costs are an 
 indemnity; they are given to the person who receives them to 
 indemnify him in respect of the cost of some proceeding which 
 
 (u) 5 k 6 Vict. c. 97, s. 2; 17 & 18 (y) Metro-p. Rail. Co. v. Tmmham, U 
 
 Vict. c. 125, s. 44. New Pleading Rules, C. B., N. S. 212. See Owen v. Land, and 
 
 Hil. Term, 1853, K. 69 ; 1 Ell. & Bl. J^oHh-West. Mil. Co., L, R., 3 Q. B. 54. 
 
 App. xlv. Cooper v. Slade, 1 Ell. & Ell. (s) Hayvxird v. Metr&p. Rail. Co., 33 
 
 .336. Gray on Costs, 181—186. Law J., Q. B. 73. See Ocdedonmn Mwy. 
 
 (x) By 32 & 33 Vict. c. 18, " The Lands v. Garmkhael, L. 'R., 2 Sc. App. 56. 
 
 Clauses Act, 1869," anch costs may be (a) Bails v. Metrop. Boa/rd of Works, 
 
 taxed by a master ; but the Act only L. E., 1 Q. B. 337. 
 
 refers to arbitrations pure and simple (J) Cobb v. Mid. Wales Sail. Co., L. E., 
 
 under the Lands Clauses Act, and not to 1 Q. B. 342. 
 
 cases, where other matters arc involved : (c) South-Eait. Rail. Co. v. Richardson 
 
 Doidton V. Met. Boa/rd of WorTcs, L. R., 5 21 Law J., C. P. 122. 
 Q. B. 333. 
 
1024 COSTS. [chap. XXII. 
 
 the other person has compelled him to take. They are not a 
 punishment on the party who is to pay them, nor a bonus to 
 the party who is to receive them. The principle, therefore, is 
 to find out the extent of the damnification, and then you can 
 find out the amount of costs you are to allow (d). They ought 
 to be a fair indemnity to the party, and if they are not so, the 
 rules which govern the taxation of costs ought to be altered (e). 
 
 A plaintiff who-has been kept attending as a material witness 
 in his own cause may be allowed the expenses of his attendance, 
 for the reasonable expenses to which a plaintiff is put by being 
 obliged to attend and be examined as a witness to seek redress for 
 an injury should be thrown upon the wrong- doer (/). And if the 
 plaintiff has been obliged to quit his vessel and abandon an 
 intended voyage, and remain in England to give evidence, the 
 reasonable and necessary expenses of his maintenance may be 
 allowed him (jf). And where the defendant's presence in court is 
 reasonably necessary for his defence, the expense of his attendance 
 will be allowed if the defence is successful Qi). 
 
 Wlien there are several defendants who defend jointly, and one 
 of them gets a verdict, he will be entitled to an aliquot portion of. 
 the joint costs of the defence, and to any additional costs that were, 
 reasonably necessary for his defence (i). If several defendants 
 defend separately by separate attorneys, and a verdict is given in 
 favour of some or all of them, each successful defendant is entitled 
 to the costs of his defence {k). 
 
 Where the jury, being unable to agree upon their verdict, are 
 discharged by the judge, and the plaintiff afterwards discontinues, 
 the defendant is not entitled to the costs of the trial (V). 
 
 The court is bound not to allow a successful party all the 
 expense he may have thought proper to incur when it can see that 
 part of it has been needless. "Where there is matter ascertained in 
 the cause, whether appearing upon the face of the proceedings or 
 established by the statement of the judge, founded upon his judicial 
 knowledge of the facts, whereby the master is satisfied that 
 witnesses called by the successful party have been wholly useless, 
 he ought to disallow the expenses of such evidence (m), ' 
 
 Costs of particular issues.— The costsof any issue, either of fact 
 
 (d) Bramwell, B., Harold v.' Smith, 5 (j) Griffiths v. Kaynaaton, 2 Tvr 757 
 
 (e) PoUook, C.B., Doe v. FillUer, 13 M. Gray on Costs, 96. 
 
 * ^- ^■'- (*) Newton V. Boodle, 4 C. B 359 Gam- 
 
 (/) Howes y. Barber, 18 Q. B. 588 ; 21 hrea\. Falmouth, 5 Ad. & E 403 
 
 Law J. Q. B. 254. Q) WaU v. Lor,d. and South-West. JtaU. 
 
 (g) Ansett v. Marshall, 22 Law J., Q. Co., 11 Exch. 696. 
 
 "^■/i?^B7 « J , r, T. -VT o, ("') Reynolds v. Harries, 3 C. B.. N. S. 
 
 (h) Flower v. Ga/rdmeir, 3 C. B., -N. S. 291 : 28 Law J., C P 26 
 187 ; 27 T..aw J., 0. P. 56. ' ^"'' 
 
SECT. 2.] TAXATION" — SECURITY FOE. 1025 
 
 or of law, follow the finding or judgment upon sucli issue,. and will 
 be adjudged to the successful party, whatever may be the result of 
 the -other issues (n). But when issues in law and fact are raised, 
 the costs of the several issues, both in law and fact, will follow the 
 finding or judgment ; and if the party entitled to the general costs 
 of the cause obtain a verdict on any material issue, he will also be 
 entitled to the general costs of the trial (o) ; but if no material issue 
 in fact be foimd for the party otherwise entitled to the general 
 costs of the cause, the costs of the trial will be allowed to the 
 opposite party (p). If judgment goes by default, the plaintiff is 
 entitled to nominal damages on each count. He is, therefore, 
 entitled to the expenses of witnesses called to prove daniage on 
 every count, although the jury on the inquisition disbelieve such 
 witnesses, and find there was no damage as to one count (q). 
 
 The party who is entitled to the costs of the cause is entitled to 
 the costs of evidence applicable to any issue or issues found for him, 
 .though also applicable to an issue or issues found against him, and 
 the other party is entitled only to the costs of evidence exclusively 
 applicable to an issue or issues upon which he has succeeded. 
 Costs apart from, costs in the cause are only given by the rule of 
 court and the statute to a party succeeding lipon an issue (r). -It is 
 for the master to ascertain whether any and what costs have been 
 incurred as to -part of the issue found for the defendant, and when 
 they can be ascertained to have been incurred relative to that only, 
 to tax them to the defendant, though the plaintiff has succeeded, 
 and is entitled to the general costs of the cause (5). 
 
 Where a plea consists of several parts, the party succeeding on 
 any one of those parts is entitled to have that part treated as if it 
 were a separate plea raising a several issue (if). 
 
 Where cosis are to ie taxed hy the court in which the action is 
 Irought, under the provisions of certain acts of parliament, giving 
 a defendant costs in certain cases where he would not otherwise be 
 entitled to them, and the cause is removed by writ of certiorari 
 from an inferior to a superior court, the superior court cannot give 
 judgment for costs, as it is not the court in which the action wa,s 
 brought (u). 
 
 Secwriiy for costs. — ^When the plaintiff in the action is a 
 
 (n) 15 & 16 Vict. c. 76, s. 81. W Traherne v. Gardner, 8 EII. & Bl. 
 
 {0) See Dignamy. BaUey, L. E., 5 Q. 182. As to costs of abortive issues, 15 & 
 
 B. 53. 16 Vibt. 0. 76, a. 145, and the New Pr. 
 
 (p) Eeg. Gen. Hi). Terra, 16 Vict., Eules, Hil. Term, 1853, E. 63 ; 1 Ell. & 
 
 E. 62 ; 1 Ell. & Bl. Ap^. xiii. As to Bl. App. xiii. 
 
 this, see Chitty's Arch. Pr., 1 1th ed. 498. (i) Davis v. Thomas, 5 Jiir. N". S. 709. 
 
 (q) Dods V. Fvans, 33 Law J., C. P. («) ConneU v. Watson, 2 Dowl. P. 0. 
 
 146. 139. Woodhall t. Voighi, 6 H. & N. 153 ; 
 
 (»•) Reynolds v. ffarris, 3 0. B., N. S. 30 Law J., Exoh. 31. Oostetto v. Corlett, 
 
 289. 4 Bmg. 474. 
 
1026 COSTS IN COUNTY COtET. [CHAP. XXII. 
 
 foreigner, having no permanent , place of abode in this country, the 
 court will stay proceedings in the action until he has given security 
 for costs to the satisfaction of the master (x). "Where, also, a sham 
 plaintiff, a pauper, is set up to sue for penalties for th-e benefit of 
 others who keep in the background, the court may require him to 
 give security for costs (y). If, also, the plaintiff is residing abroad 
 out of the jurisdiction of the court, he may be required to give 
 security for costs (z). But an officer engaged in the service of 
 the Crown in a foreign country cannot be required to give such 
 security (a) ; nor is it necessary for a plaintiff suing in England 
 but residing in Ireland or Scotland, or vice versd, to find security, 
 " unless the court, on special grounds, shall otherwise order " 
 (31 & 32 Vict. c. 54, s. 5); nor for the trustee of a bankrupt, or the 
 executor of a deceased person, suing for the benefit of the estate, 
 although such trustee or executor be in insolvent circumstances (J). 
 The proviso in the 30 & 31 Vict. c. 142, s. 10, has been mentioned, 
 ante, p. 948. 
 
 Where a limited liability company is plaintiff, it may be requiredi 
 to give security for costs, if it. be shown that there is reason to 
 believe that the assets of the company wiU not suffice to pay the 
 defendant his costs, in case he is successful, and proceedings may 
 be stayed until such security is given (c). * - 
 
 Award of costs in the eotmtp court. — By 9 & 10 Vict. c. 95j s.,88, 
 it is enacted, that all the costs of any action or proceeding in the 
 county court, not therein otherwise provided for, shall be paid by 
 or apportioned between the parties, in such manner as the judge 
 shall think fit, and in default of any special direction shall abide 
 the event of the action. And by the 30 & 31 Vict. c. 142, s. 14, 
 it is enacted, that whenever an action or suit is brought in the 
 county, court, which the court has no jurisdiction to try, the court 
 shall order the cause to be struck out, and shall, unless the parties 
 consent to the trial of the cause in the county court, have power to 
 award costs in the same manner as if the court had jurisdiction, 
 and the plaintiff had not appeared, or had appeared and failed to 
 prove his demand. If the cause has been sent by a superior 
 court to a county court for trial under 30 & 31 Vict. c. 142, s. 10, 
 the costs are entirely in the jurisdiction, of the county court (d). 
 
 (x) NyVmder t. Sames, 30 Law J., (a) WhittaU t. Campbdl, 5 H. & N. 
 
 Exoh. 150. ZychUnaU v. Malfby, 14 C. 601. 
 
 B., N. S. 322. Chappie \. Watt, 29 Law (i) Denston v. Ashton, L. E , 4 Q B 
 
 J., Q. B. 167. 690. Sykes v. Syhes, L. E , 4 C. P. 645 ': 
 
 (y) Browne v. Redmond, 11 Ir. 0. L. E., 38 L. J., 0. P. 281. 
 
 App. ixviii. Rice v. Dvb. and Wick. (c) 20 & 21 Viet. c. 14, s. 24. See 
 
 BaU. Co., 8 ib. 155, C. P. CaiUaud's Patent Tannvtig Co. v. CadUaud, 
 
 (s) Holmes y. Pemberion, 28 Law J., 28 Law J., Ch. 357. 
 
 Q- B- 172. (rf) Moody V. Steward, L. R., 6 Exoh. 
 
 35. 
 
SECT. 2.] OF PKOSEOUTIONS. 1027 
 
 Costs of prosecutions. — When any person has been convicted on 
 an indictment for a common assault, or an assault with wounding, 
 &c., the court may, in addition to the sentence pronounced upon the 
 offender, order him to pay to the prosecutor his actual and necessary 
 costs and expenses of the prosecution, and such moderate allowance 
 for loss of time as the court may, by affidavit, or other inquiry 
 and examination, ascertain to be reasonable ; and if the sum awarded 
 is not paid, the offender may be imprisoned, or the amount levied 
 by distress and sale of his goods and chattels (e). 
 
 As to costs of injunction under Common Lavj Procedure Act, 
 see post, p. 1035. 
 
 (e) 2i & 25 Tict. e. lOO, bs. 74, 75. 
 
 u n u 2 
 
1028 
 
 CHAPTER XXIII. 
 
 OP DAMAGES IN CHANCEEY, AND THE EEMEDY BY INJUNCTION, 
 PROHIBITION, AND CERTIOEAKI. 
 
 Section I. — Damages in courts of equity. 
 — Award of damages in Chancery — 
 The writ of injunction to* prevent or 
 restrain the commission or continuance . 
 of wrongful acts — Injunction to restrain 
 a public company from exceeding its 
 statutory powers, to prevent disturb- 
 ance of grave-yards and obstructions 
 to rights of burial, to restrain the 
 infringement of patent rights and 
 copyright, and the sale or detention of 
 chattels — Effect of delay in applying 
 for the writ — Acquiescence precluding 
 the plaintiff from relief — Trial of ques- 
 tions of lavr and fact in the Courts of 
 Chancery — Eemedy by injunction at 
 common law — Injunction at common 
 law to restrain infringements of patent 
 right and copyright — Injunctions and 
 orders to stay proceedings. 
 
 Section II. — Of the remedy hy proldbition 
 for the prevention ofjwMcial wrongs. — 
 The jprit of prohibition — Prohibition 
 before and after judgment and execu- 
 tion — Prohibition where appeal lies — 
 
 Principle on which the writ goes to 
 the spiritual courts — Prohibition not- 
 withstanding an appeal — -Writ of pro- 
 hibition to restrain a county-court 
 judge — Prohibition totheLord Mayor's 
 court — Proceedings in prohibition — 
 Rule to show cause — Notice of the 
 issue of the writ— -lief usal of writ when 
 final — Of setting aside prohibitions 
 issuing out of Chancery. 
 Section III. — Of the remed/y by certiorari. 
 — The writ of certiorari — Where the 
 inferior court has jurisdiction — Where 
 the inferior court has no jurisdiction — 
 Grounds for the issue of the writ — 
 Upon an inquisition of damages before 
 the sheriff— Certiorari to remove causes 
 from the county court — Of the con- 
 cuiTent remedy by appeal and by 
 certiorari — Application for the writ — 
 Affidavits when necessary — Notice and 
 effect of the issue of the writ' — -Refusal 
 of the writ — Proceedings after removal 
 —Quashing of the writ — ^Procedendo. 
 
 SECTION I. 
 
 OF DAMAGES IN CHANCERY AND THE EEMEDY BY INJUNCTION, 
 
 Award of damages in the Court of Chancery. — By the Chancery 
 Amendment Act, 1858, 21 & 22 Vict. c. 27, commonly called Lord 
 Cairn's Act, it is enacted (s. 3), that in all cases in which the Court 
 of Chancery has jurisdiction to entertain an application for an 
 injunction against the commission or continuance of any -wrongful 
 act, it shall be lawful for the court, if it shall think fit, to award 
 damages to the party injured, either in addition to or in substi- 
 tution for such injunction, and such damages may be assessed in 
 such manner as the court shall direct (a). The meaning of the 
 
 (a) Moldy. Wheatcroft, 30 Law J., Ch. 598. SchoUman v. Lancashire and Torh 
 shvre Mail. Co., D. E., 1 Eq. Ca. 349. 
 
SECT. l.J DAMAGES IN CHANCERY. 1029 
 
 statute is, that where the court has jurisdiction in the suit, it may 
 award damages in substitution for specific performance (&). Damages 
 independent of relief in the Court of Chancery will not be given, 
 for the statute, it has been observed, was never intended to transfer 
 the jurisdiction in a simple case of damages from a court of common 
 law to a court of equity (c), and throw upon a court of equity the 
 functions which properly belong to a jury (cf). But this will not 
 prevent a plaintiff, who at the time of filing his biU is entitled to 
 to injunction to restrain the infringement of his patent, from 
 pursuing his remedy for damages in Chancery, although the patent • 
 expires between the time of the filing of the bill and the hearing (e) ; 
 nor is the plaintiff prevented by the Act from pursuing his remedy 
 for damages at common law, though he may also be suing for relief 
 in equity (/). He is not entitled, however, to damages in a court 
 of equity if he filed his bill only four days before the expiration 
 of the patent {g). If the plaintiff, a patentee, and also a manu- 
 facturer, has been in the habit of licensing others to use his patent, 
 at a fixed royalty, the loss of that royalty is the measure of damages 
 against a person who has infringed the patent, and the plaintiff 
 cannot claim in addition manufacturer's profit, on the supposition 
 that the articles made by the defendant, and in which the infringe- 
 ment took place, might have been sent to him to be fitted with the 
 patent Qi). 
 
 The iwii of injunction issuing out of Chancery is, as we have 
 seen {ante, p. 76), a prohibitory writ granted at the discretion of 
 the court, restraining a defendant from the repetition or continuance 
 of a wrongfiil act; and enforceable, in case of disobedience, by 
 attachment (i). The object of the equitable interference by injunc- 
 tion, is to prevent the infringement or disturbance of a clear legal 
 right (y ), or for the purpose of better enforcing legal rights, or 
 preventing mischief until such rights have been ascertained (Jc). 
 Various instances of the granting of this Writ for the protection and 
 preservation of legal rights have been already given in the case of 
 injunctions to prevent the disturbance of rights incident to the 
 possession and ownership of land {ante, pp. 76, 77), easements and 
 profits a ^prendre {ante, pp. 156, 157), for the prevention of brick- 
 burning {I) and nuisances {ante, p. 215, et seq.), for the prevention 
 
 (5) Soames v. Edge, Johns. 669. Ca. 302. 
 
 (c) ffoive V. Sunt, 32 Law J., Oh. 36. (/) Anglo-DanuUan Co. t. Eogerson, 
 
 Chmnoch v. Saimbury, 30 ib. 409. Betts L. E., 4 Eq. Ca. 3. 
 
 T. Oallais, infra. ■ (g) Betts v. GaUais, L. E., 10 Eq. Ca. 
 
 Id) Rogers v. OhaUis, 27 Bear. 175 ; 29 392. 
 
 Law J., Ch. 240. BetU v. De Vitre, 34 {h) Penn v. Jach, L. E., 5 Eq. Ca. 81. 
 
 Law J., Oh. 289. DureU t. Pritchard, ^ (i) Drewry on Injuactions, Kerr on In- 
 
 L. K., 1 Ch. App. 244. Ferguson t. junctions. Goldsmith's Eq. Pr.i 5th ed. 
 
 Wilson, L. E., 2 Ch. App. 77. Scott v. (j) Serr v. Union Bank, 2 Qiff. 686. 
 
 Rayment, L. E., 7 Eq. Ca. 112. \k) Samnders v. Smith, 3 Myl. & Cr.729. 
 
 (e) Davenport v. Rylamds, L. E., 1 Eq. I}) Beardmore v. Tredwdl, 3 Giff. 683. 
 
1030 INJUNCTION IN CHANCEEY. [CHAP. XXIII. 
 
 of waste (ante, pp. 258-261), for the prevention of trespasses (ante, 
 pp. 315, 317), to enforce compliance by railway and canal com- 
 panies with the provisions of the Eailway and Canal Traflic Act 
 (ante, pp. 513-516), to restrain public companies from doing acts 
 %atra vires (ante, p. 769 et seq.), and to prevent and repress fraud 
 and the fraudulent use of trade-marks (ante, p. 874 et seq.) (m). 
 
 The interference of the court is not, as we have seen, confined 
 to the prevention of the continuance of an injury already done, 
 but its assistance may be invoked for the purpose of averting a 
 threatened mischief (n). The court will not interfere for- the 
 protection of public rights, unless it is satisfied that the interests 
 of the public require the issue of the injunction (o). 
 
 Injunction to restrain a pablic company from exceeding its statu- 
 tory powers, wiU be granted at the suit of a private person who has 
 sustained some private individual injury thereby, but not, as we 
 have seen, at the instance of a ri^al company, or any public body 
 not qualified to represent the interests of the public (p ). Thus it 
 wiU issue to restrain a public company, which by its deed of 
 settlement was empowered to refuse to authorise a transfer tp any 
 person not approved by them, from refusing to transfer at all, 
 though whether it would issue to compel them to^ authorise a 
 transfer of shares to a nominee of a rival company was considered 
 doubtful (g). So to restrain a railway company from paying 
 dividends out of capital (r), or from prosecuting a suit not insti- 
 tuted by it (s), 
 
 Injunction to restrain disturbarme of grave-yards, and obstructions 
 to rights ofburial. — If a person takes a mortgage of the ground of a 
 cemetery belonging to a company, and the company continues after 
 the mortgage to grant permanent rights of burial, and persons are 
 buried in ±he mortgaged land with the knowledge of the mortgagee, 
 the Court of Chancery will, by injunction, restrain the latter from 
 disturbing the ground and interfering with the graves and the 
 right of buriaL The Act to amend the laws concerning the burial 
 of the dead in the metropolis (15 & 16 Vict. c. 85), putting an end 
 
 (m) As to infringements of right of W. E. 156. Bostoch t. North Staff., <tc., 
 
 access to a public river, Atl.-Gen. v. ante, p. 771. TinUer -v. Wandsworth, &c., 
 
 Thames Conservators, 1 H. & M. 1. ante, p. 772. 
 
 (») Ante, pp. '76, 315. Tinkler v. (q) Sobinson y. Chartered Sanh, li. ^., 
 
 Wandsworth District JBoard, 2 Be G.. & J . 1 Bq. Ca. 32. 
 
 272. Gibson t. Smith, 2 Atk. 182. ()•) Bloxam v. Metrop. Rail. Co., L, K., 
 
 (o) Felkin v. Ld. Herbert, 30 Law J., 8 Oh. App. 337. Salisbury t. Metrop. 
 
 Oh. 604. Byde Com. v. Isle of Wight Bail. Co., 38 Law J., Ch. 249. See MooU 
 
 Ferry Co., SO Bear. 616.' Wandsworth v. Ot. West. Bail. Co., L. E., 3 Ch. App. 
 
 Board, &C. v. Bond, and South- West. Bail. 262. 
 
 Co.-, 31 Law J„ Ch. 854. Wintle v. Brist. (s) Kemagham, v. WiUiamjs, L. E., 6 
 
 andSouth-West,Rail,Co.,6h.T.K,'!i!. Jlq. Cg.. 228.. See Abrahams v. Lord 
 
 S. 20. Mayor, <Sic„ of London, L, E„ 6 Pq, 0^. 
 
 (p) Ante, p. 258. Stoekport District 625. 
 "p, V, ilfaup^csfe)' {Mayo^; ic.), }1 
 
SECT. l.J PATENT KJGHT AND COPYRIGHT. 1031 
 
 to the general right of burial therein, specially reserves permission 
 for particular individuals having private rights to bury in the 
 grounds which are within the provisions of the Act, provided they 
 previously obtain the sanction of one of Her Majesty's principal 
 secretaries of state for the time being, for the purpose. The 
 legislature, therefore, has in a qualified manner preserved these 
 rights, and the interference of the court may be obtained for their 
 protection against the acts of wrong-doers who seek to interfere 
 with the graves or the soil of the burying ground (t). 
 
 Injunction to restrain the infringement of patent rights and 
 copyright. — If a plaintiff- is in a position to support by proper 
 evidence his title to a patent, and to prove the fact of its having 
 been infringed, he is entitled to an injunction to stop the mischief (m), 
 both against the manufacturer and the person who uses the patent («), 
 and to an account of the profits they may have made by their 
 invasion of the plaintiff's privilege, or to an inquiry as to damages, 
 at his option (w). Eut it is not the practice of the courts of equity 
 to grant a perpetual injunction to restrain the infringement of a 
 patent, unless the legal validity of the patent has been conclusively 
 established (oi), which must now, under the 25 & 26 Vict. c. 42, the 
 Chancery EeguMion Act, 1862, be done before the Court of 
 Chancery itself (2/). If, after th§ decree has been pronounced, the 
 patent becomes void, by the decision of a court of competent 
 jurisdiction or otherwise, the injunction becomes of no effect (a). 
 -Whpre the patentee manufactures and sells the patent both in 
 this country and abroad, the onus lies upon him to show not only 
 that the article of which the sale is complained of was not made 
 by him in this country, but also that it was not made by him or 
 his agents abroad {a). 
 
 We have seen that an 'injunction may be obtained to prevent 
 persons attending lectures, from taking notes and publishing such 
 lectures for profit without the author's consent (6) ; also to restrain 
 the publication of private letters without leave of the person who 
 wrote them, or, in case of his death, without the leave of his 
 executor (c), and from printing and publishing any private manu- 
 
 (i) Morelmd t. Riehardson, 26 Law J., (a) Hills v. Evans, 31 Law J., Ch. 457. 
 
 Ch. 690 ; 25 ih. 883. As to the leg?,l validity of patent riglits', 
 
 (m) Gardner v. JBroadbent, 2 Jur. N. S. see Zang v. Qishorne, ib. 771. 
 
 loil. Bacon v. Jones, i Myl. & Or. 433. (y) Femie v. Young, L. R,., 1 Eng, & 
 
 DavenportY.JRyl(mds,ante,'p.'iQW. EqvUI Ir. 4-Pp. 63. 
 
 V. Goodier, L. E., 2 Eq. Ca. 195. (z) Daw v. Eley, L. R., 3 Eq. Ca. 496. 
 
 (v) Penn t. Bibby, L. E., 3 Eq. Ca. (a) Beits y. Willmott, L. E., 6 Ch. App 
 
 308. , 239. 
 
 (to) NeUson v. Betts, L. E., 5 Kng. & (J) Abernethy v. If iachin3on,,a,nte, p. 10. 
 
 Ir. App- 1- Se,e Saxby v. Easierbrobk, L. ' (c) Thompson v. Stanhope, Ambl. 737, 
 
 R, 7 Exch. 207. As to interrogatories, See Hophinson v. Ld. Burnhley, L, K 2 
 
 see ffoffmn v. fostill, L. R., i Ch, App, Ch, App. 447, ' ' 
 
 67g. 
 
1032 INJUNCTION IN CHANCEliY. , [CHAP. XXIII. 
 
 script or unpublished work, without the consent of the author or 
 proprietor (cZ). If a person under the pretence of writing a criticism 
 upon an author's work, copies out the most attractive parts of it, 
 and so large a quantity of the text as to injure and interfere with, 
 the sale of the work, the author or proprietor is entitled to an- 
 injunction (e). But where the reviewer or critic takes no more 
 than is reasonably sufficient for a mere review or critique, an 
 injunction wiU be refused (/). A fair abridgment is in certain 
 ' cases allowable, but not where it is merely colourable or evasive, 
 and is so far a reproduction of the original work as to injure the 
 sale of it (g). • 
 
 An injunction may also be obtained to restrain an infringement 
 of the statutory copyright in printed books, including maps Qi), 
 lectures, dramatic literary property and musical compositions, 
 sculpture, useful and ornamental designs, prints and engravings, 
 paintings, drawings, and photographs (j). It is maintainable by the - 
 grantee or assignee of a printed -work, although he has not paid the 
 author the price agreed upon for the writing of the work (/) ; but 
 before the court vrill interfere in his favour, it must be shown that 
 he has a good legal title to the copyright (/<;). "Where a person, 
 being about to publish a periodical publication under a certain title, 
 and knowing another publisher was engaged in the production of a 
 periodical under a similar title, allowed the latter to continue his 
 preparations without objection, and himself advertised it, it was 
 Keld that he could not restrain the latter from using the title, 
 although as a matter of fact his periodical was published first Q). 
 
 Injunction to restrain the sale or detention of chattels. — Where 
 specific chattels necessary for conducting a particular business are 
 in the possession of persons who claim a lien upon them, and 
 threaten an immediate sale, the -court will interfere by injunction, and 
 give the debtor an opportunity of redeeming his property {m). And 
 a court of equity has also jurisdiction to enforce a right of stoppage 
 in transitu {n). The Court of Bankruptcy also has jurisdiction, 
 under :the Bankruptcy Act, 1869, 32 & 33 Vict. c. 71, to prevent by 
 injunction a third person from dealing with property fraudulently 
 assigned before a bankruptcy (o). 
 
 (d) queensburyf^Dukeof) v. Shebbeare, (j) Coxy. Cox, 11 Hare, 118. 
 
 ante, p. 10. Prince Albert r. Strange, (h) Stevens v. Venning, 24 Law J., Ch. 
 
 anfe.p.lO. MacMin Y. Eichardaon, AmU. 153; ante, Tp. il,et seq. Addison on Con- 
 
 694. ■ tracts, 6th ed., 120, 121. 
 
 (c) CampbeUT.Scott,ll Sim. 31. Saun- (I) Maxwell Y..IIoog, L. R.. 2 Ch Ado 
 
 ders y. Smith, SMy\.&Cr. 711. Bmm- 307. . xv , ^ v.n. iipp. 
 
 well J. HalaymJ>,Zih. 737. (m) NonTi y. Qt. Northern RaU. Co., 
 
 (/) BeU T. Walker, 1 Bro. Ch. C. 450. 69; 29 Law J., Ch 301 
 
 (g) Tonson v. W(dker, 3 Swanst. 672 ; (n) SchoUmans v. Lane, and Yori;. Rail, 
 
 ante, p. 41, et seq. Co., L. R., 2 Ch. App. 332 
 
 (A) Standard J. Lee, L. E., 6 Ch. App, (o) Ex paHe Anderson, L. K., 5 Ch. App. 
 
 346 ; ante, p. 46. 473. ■ ' '^'^ 
 
 (i) Ante, p. 41, et seq. 
 
SECT. 1.] DELAY OE ACQUIESGENCE. 1033, 
 
 Effect of Idchcs and delay in applying for an injunction. — The 
 court, in the exercise of its discretion with regard to. the granting 
 of an injunction, will, as we have seen'i be influenced by any laches 
 or delay which may have taken place in the institution of the 
 l^roceedings {p). Long delay may amount to absolute proof of 
 acquiescence in the act complained of, and will, if unexplained, 
 certainly throw considerable doubt on the reality of the alleged 
 injifty (^).- 
 
 Acquiescence precluding a plaintiff from relief. — A man who lies 
 by while he sees another person expend his capital and bestow his 
 labour upon any work which he claims to have a right to prevent, 
 without giving that person any notice or attempting to interrupt 
 him, and who thus acquiesces in proceedings inconsistent with his 
 own claims, wUl in vain ask for an injunction, the effect of which 
 would be to render all the expense useless which he voluntarily 
 suffered to be incurred (r). Where there was a parol agreement for 
 the maldng of a watercourse through the defendant's land, for 
 a certain consideration to be paid to the latter, and the watercourse 
 was made and used for some time, and the parties could not after- 
 wards agree upon the amount to be paid for the easement, and the 
 defendant then stopped up the watercourse, an injunction was 
 granted to' restrain him from interfering with the plaintiff's use of 
 it, and it was referred to the master to ascertain the amount that 
 ought to be paid for the enjoyment of the privilege (s). 
 
 Of the statutory oMigation upon the Court of Chancery to decide 
 all questions oflaiv and fact on the determination of which the title to 
 relief in- equity depends. — Formerly, when an injunction was granted 
 for the protection of a legal -right, and a question, was raised as to 
 the existence of the right, the court made the continuance of the 
 injunction dependent upon an action being brought to try the right, 
 or it required the complainant iirst to establish his title at law, and 
 suspended the grant of the Injunction until the result of the legal 
 investigation had been ascertained {t) ; but the Chancery Amend- 
 ment Act, 15 & 16 Vict. c. 86, s. 62, provides, that in cases where 
 it is the practice of the court to decline to grant equitable relief 
 until the legal title or right of the parties seeking such relief has 
 been established in a, proceeding at law, the court may itself 
 determine such title or ■ right without requiring the parties to 
 
 {p) Bridson y, Benecke, 12 Beav. 1. 515. Cotohin v. Bassett, ante, p. 216 
 
 BoviU T. Crate, L. E., 1 Eq. Ca. 388. MaxweU v. Hogg, supra. 
 
 (2) Ante, pp. 215—217, 261. Ware-v. (s) Devonshire {Duke of) v. Blgm, 20 
 
 Hegent's Canal Co., 3 De G. & J. 230. Law J., Ch. 496. See ante, p. 156. 
 Wicks T. Hunt, 1 Johns. 372. (t) Earl Ripon t. Hohwt, 3 Myl. & K. 
 
 (r) Parrott v. Palmer, ante, p. 261. 177. Clowes t. Bech, 13 Bear. SHi- 20 
 
 Birmingham Canal Co. v. Lloyd, 18 Ves. Law J., Ch, 605. Bacon '7. Jones, i Mvl 
 
 &Cr. 436. ' ^ 
 
1034 , INJUNCTION IN CHANCERY. [CHAP. XXIII. 
 
 l^roceeii at law to establish the same ; and the 21 & 22 Vict. c. 27, 
 s. 3, provides for the trial of questions of fact arising in any suit or 
 proceeding in Chancery, either before a common or special jury, or 
 (s. 5) before the court itself -without a jury (w). When the trial 
 takes place before a jury, the court has the same powers, jurisdic- 
 tion, and authority as any judge of any of the superior courts sitting 
 at nisi prius. But this provision does not, by its reference to pro- 
 ceedings at common law> impose limits upon the right of appeal 
 previously existing upon questions both of law or fact, against any 
 order made by the Court of Chancery (v). Nor d,oes it give the 
 defendant a right ex debito justitim to have his case tried by a 
 jury, where, as in a patent case, a trial by the judge .alone is 
 preferable («), 
 
 And by 25 & 26 Vict. c. 42, s. 1, it is enacted, that in all cases 
 in which any relief or remedy within the jurisdiction of the courts 
 of Chancery is sought in any cause or matter instituted or pending 
 in either of the said courts, and whether the title to such relief or 
 remedy be, or be not, incident to, or dependent upon, a legal right, 
 any question of law of fact cognizable in a court of common law, 
 on the determination of which the title to such relief or remedy 
 depends, shaWbe determined by or before the same courts (y). But 
 whenever it shall appear (s. 2) that any question of fact may be 
 more conveniently tried by a jury at the assizes, or at any sitting in 
 London or Middlesex for the trial of issues, the court may, never- 
 theless, direct any issue to try the question at the assizes, or at a 
 sitting for the trial of issues in London or Middlesex {z). All the 
 provisions with reference to the trial of questions of fact by courts 
 of Chancery, contained in the Chancery Amendment Act, 1858, 
 21 & 22 Vict. c. 27 {ante, p. 1028), apply to the determination of 
 questions of fact under this act. But the court is not bound 
 to grant relief in any matter respecting which a court of common 
 law has concurrent ji^risdiction, if it shall appear that such matter 
 has been improperly brought into equity, and that the same ought 
 to have been left to the sole determination of a court of common 
 law ; 25 & 26 Vict. c. 42, s. 4. This section applies to cases where 
 there has been some interference with the plaintiff's rights, but not 
 sufficient to entitle the plaintiff to an injunction (a). 
 
 This act of parliament renders it compulsory upon the courts of 
 Chancery to decide the whole question brought before them, both 
 as regards the legal title of the parties, and the claim to equitable 
 
 («) See Simpson v. Bolliday, L. E., 1 (y) See Fernie v. Young, ante p. 1031 
 
 App. Ca. 316. (z) See Roskdl v. WhiiwoHh, L. R., 5 
 
 (v). VurtU V. Piatt, h. B., 1 App. Ca. Ch. App. 459. 
 
 837. (a) Durell v. Pritcluird, h, K„ 1 Ch. 
 
 (x) Bov%a,f.HUf}Uock,'L.'&.,ZC\i,k^Tp^ App, 244. 
 
 417, ' - ' .. , . -' • 
 
SECT. 1.] INJUNCTION AT COMMON LAW. 1035 
 
 relief (b). The act applies not merely to rights, but to remedies 
 given by the courts of equity, and does away with the power of 
 refusing or postponing remedies until the legal title has been 
 established by a trial at law (f). But there is nothing in the act 
 which authorises the court to transfer to itself an action actually 
 pending in a court of law (d), or to take cognizance of wrongs and 
 interfere by injunction, when the act complained of has been done, 
 and the question whether the act is wrongful or not depends upon 
 matters of fact and law, for the trial of which no tribunal is so fit as 
 a jury having the assistance of a judge to direct them (e). 
 
 Of the remedy h/ injunction at common law. — By 17 & 18 Vict. 
 c. 125, sb- 79, it is enacted, that in all cases of injury where the 
 party injured is entitled to maintain, and has brought, an action, 
 such party may indorse upon the writ and copy to be served, a 
 notice that the plaintiff intends to claim a writ of injunction, and 
 the" plaintiff may thereupon claim a writ of injimction -against the 
 repetition or continuance of such injury, or the committal of any 
 injury of a like kind ; and he may also, in the same action, include 
 a claim for damages, or other redress, and judgment may be given 
 (s. 81) that the writ of injunction do or do not issue, as justice may 
 require. In case of disobedience, such writ of injunction may be 
 enforced by attachment by the court, or, when the courts shall not 
 be sitting, by a judge. The claim of the injunction, however, in the 
 writ and declaration, is merely a preliminary formality to enable 
 the plaintiff to ask for an injunction at the proper time, and 
 it cannot therefore be pleaded to (/). 
 
 It is further provided (s. 82), that it shall be lawful for the 
 plaintiff, at any time after the commencement of the action, and 
 whether before or after judgment, to apply ex patte to the court or 
 a judge for a writ of injunction to restrain the defendant, in such 
 action, from the repetition or continuance of the wrongful act, or 
 the committal of any injury of a like kind, relating to the same 
 property or right ; and the writ may be granted or denied by the 
 court, or jiidge, upon such terms as to the duration of the. writ, 
 keeping an account, giving security, or otherwise, as to the court or 
 judge shall seem reasonable and just {g). In case of disobedience, 
 the writ may be enforced by attachment by the court, or when the 
 court is not sitting, by a judge. But the order, or any writ issued 
 by virtue thereof, may be discharged, or varied, or set aside by the 
 court, on the application of any party dissatisfied with the order. 
 
 The court will, by injunction under this statute, compel a 
 
 (5) Fernie v. Young, ante, p. 1031. 30 Beay. 287 ; 31 Law J., Ch. 329. Dow- 
 
 (c) Hooper, In re, 32 Law J., Ch. 55, ling v. Betjemamn, 2 Johns. & B,. 5ii. 
 
 (d) Curlmiis v. Garter, 33 Law J., Oh, (/) Booth r. Ta^hr, L. K., 1 Exoh. 51, 
 370. (ff) As to costs, see Grindley y, BQoth, 
 
 (e) 4tt.-Gen. t, Unipd King, Tel Oo.^ 3^ Law J., Exph, 135, 
 
1036 INJUNCTION AT COMMON LAW. [CHAP. XXIII. 
 
 wrong-doer to pull down a building, or remove a wall obstructing 
 ancient windows, and wiU, in certain cases, retain the writ in the 
 office, on the defendant undertaking to pull down so much of a 
 building as may be necessary, (in the opinion of a surveyor, to be 
 selected by the parties or nominated by a judge,) to restore to the 
 plaintiff the fuU enjoyment of the light and air he previously 
 possessed (/;-). The practice in equity is to direct an issue to try the 
 right, and that an account be taken in the meantime, and to grant 
 an interlocutory injunction until the cause is determined, and the 
 courts of common law wUl mould their proceedings as nearly as 
 possible in accordance with the proceedings in equity (j). 
 
 There being no appeal from the exercise of this jurisdiction, 
 the courts are slow to exercise it, where the- applicant can obtain 
 an adequate remedy by action (although Tepeated actions may be 
 necessary), and in "cases to which the powers of the Court, of Com- 
 mon Pleas to grant an injunction under the Eailway and Canal 
 Traffic Act (17 & 18 Vict. c. 31, s. 3), are especially applicable {k). 
 
 When once an injunction has been obtained under s. 82 of this 
 statute (17 & 18 Vict. o. 125), it is in itself a continuing injunc- 
 tion, and, if it is disobeyed at any time, the plaintiff may apply to 
 the court, or, if the court be not sitting, to a judge, to enforce 
 obedience to it by attachment (T). 
 
 The court has no power to grant an injunction in an action of 
 ejectment (m). 
 
 Injunction at common law to restrain infringements of patent- 
 right and copyright. — By the Patent Law Amendment Act, 15 & 16 
 Vict. c. 88, s. 42, it is enacted, that in any action in the superior 
 courts for the infringement of letters patent, it shall be lawful for 
 the court in which the action is pending, or, if the court be not 
 sitting, then for a judge of such court, on the application of the 
 plaintiff or defendant, to make an order for an injunction, &c. ; and 
 by 25 & 26. Vict. c. 68, s. 9, it is further enacted, that in any action 
 for an infringement of copyright in paintings, drawings, and photo- 
 glyphs, in the superior courts, the court in which the action is 
 pending, or a judge of the court, if the court is not sitting, may 
 , make an order for an injunction. 
 
 Where the plaintiff, in the first count of his declaration,. alleged 
 that the defendant wrongfully took, and kept possession of, certain 
 photographic plates of the plaintiff for printing portraits, and printed 
 and sold portraits therefrom, and thereby rendered the plates less 
 valuable to the plaintiff, and deprived him of the profits he would 
 
 ill) Jessd V. Chaplin, 2 Jur. N. S. 931 ; (l) Be La Rue v. Portescue, 2 H. & N. 
 
 4 W. E. 610. 324 j 26 Law J., Exch. 339.. 
 
 («) Gittim T. Syrma, 15 0. B. 362. (m) Baylia v. Le Gros, 26 Law J., C. P. 
 
 {k) Sutton V. South-East. Rail. Co., L. 176. 
 K, 1 Exoh. 32. 
 
SECT. 2.] PROHIBITION. 1037 
 
 have derived from printing and, selling portraits from the said 
 plates ; and in a second count charged the defendant with detain- 
 ing the said photographic plates, and claimed a return of them, or 
 their value, and 101. for their detention, and 1000?. in respect of 
 the causes of action in the first count mentioned, and also claimed 
 an injunction to restrain the defendant from continuing to print 
 portraits from the said plates, it -was held that the plaintiff was 
 entitled to recover damages on bott counts of his declaration, and 
 was also entitled to an injunction (n). 
 
 Injunctions and orders to stay proceedings. — If any action, suit, 
 or proceeding is commenced, or prosecuted, in disobedience of a 
 writ of injunction, rule, or order from the superior courts, or a judge 
 thereof, the proceeding will be utterly null and void, and the parties 
 prosecuting it wiU. be liable to an attachment, 15 & 16 Vict. c. 76, 
 s. 226. The court also will stay proceedings after order made, and 
 before the writ of injunction is actually issued (o). 
 
 SECTION II. 
 
 OF THE REMEDY BY PROHIBITION FOR THE PREVENTION OF JUDICIAL 
 
 WRONGS. 
 
 The wi'it of prohibition is a writ issuing out of Chancery (p), or 
 one of the superior courts at Westminster, directed to the judge or 
 officers of an inferior court, prohibiting them, from intermeddling 
 with, or executing, anything of which, by law, they ought not to take 
 cognizance. The object of the writ is to enforce the due adminis- 
 tration of justice by keeping all inferior courts within the limits 
 and- bounds of their several jurisdictions, as defined by the laws, 
 customs, and statutes of the realm {q). Where an inferior court 
 proceeds in a course properly within its jurisdiction, no prohibition 
 can be awarded tUl the pleadings raise some issue which the court 
 is incompetent to try. But where the foundation for the jurisdic- 
 tion is itself defective, a prohibition may be applied for at once (r). 
 
 The writ of prohibition, therefore, from the Queen's .courts at 
 Westminster, stiU goes to the ecclesiastical courts (s), as well as to 
 the courts of admiralty {t), courts-martial, county courts, courts 
 
 {») MwyaU t. Bigby, 31 Law J., Exoh. Urns del Eoy, 12 Co. 63—64. 
 
 329 ; 1 H. & C. 148 ; ante, pp. 45—47. {r) See Mfayor, of London v. Cox, L. E., 
 
 (o) Corhett T. LvMam, 11 Exch. 450 ; 2 H. of L. Ca. 239. 
 
 25 Law J., Exch. 25. • (s) 2 Inst. 698, 599. 
 
 (jp) See Re Sateman, L. K., 9 Eq. Ca. («) James v. Land, and South- West 
 
 660. , iJwy., L. E., 7 Exch. 187, 287. 
 
 {q) Bac. Abr. Prohibition. ProMU- 
 
1038 PROHIBITION, [CHAP. XXIII. 
 
 baron, the Vice-Chancellor's court, the court of the Earl Marshal, 
 the Lord Mayor's court, courts of quarter sessions, municipal 
 councils, and to all magistrates, sheriffs, commissioners, and persons 
 acting in a judicial capacity, to restrain their proceedings when 
 they are acting, or are about to act, in excess of their jurisdiction (ii). 
 It lies also in certain cases to restrain the proceedings of courts of 
 criminal jurisdiction, and will be granted to prevent a coroner hold- 
 ing an inquest from extending his inquiries beyond the proper 
 limits of his of&ce (v). 
 
 When the act sought to be prohibited is not a judicial act, a 
 prohibition will not lie (w) ; but all acts based upon a decision 
 judicial in its nature, and affecting either a public or a private right, 
 are judicial acts ; such as an order by church-building" commis- 
 sioners to stop up a footpath through a churchyard (x) ; or the 
 apportionment of a county-rate by commissioners (y) ; or an order 
 of sessions regulating the fees of the clerk of -the peace («). 
 
 Prohibition lef ore judgment. — "Wherever the case is of such a 
 nature as to show on the face of the proceedings a want of jurisdic- 
 tion in the inferior court, it is the bounden duty of the superior 
 court to issue the writ of prohibition, in whatever stage of the pro- 
 ceedings below that fact is made manifest, either by the Crown or 
 by any one of its subjects. The misconstruction of an Act of Par- 
 liament by an inferior tribunal, whereby it is about to do some- 
 thing which it is not authorised to do, is one of these cases ; the 
 enforcement of a rate or tax imposed without lawful authority is 
 anpther (a). 
 
 When it appears from the very form of an information or plaint, 
 and particulars of a cause of action in the inferior courtj that the 
 court has no jurisdiction in the matter, the party served with the 
 process may at once apply for a prohibition, without entering any 
 appearance, or taking any steps to defend himself in the court 
 below (6), or he may appear and take the objection, and go for a pro^ 
 hibition, in case the judge rules against him. When the defect of 
 jurisdiction is not made manifest at the commencement of the pro- 
 ceedings by the plaintiff himself, but depends upon certain ques- 
 tions of fact, the defendant piay bring before the court the facts 
 depriving it of jurisdiction, and object to any further proceeding in 
 
 (u) Bac. Abr., Pbohibition(I), Birch, (y) Sea. v. Aherdare Canal Co., 14 Q. 
 
 In re, 15 CT. B.- 743. GhaMot, In re, 17 B. 854. 
 
 Law J., Q. B. 336. Church v. Incloa. Com., (z) Reg. t. OoUs, 8 Q. B. 75. 
 
 31 Law J., C. P. 201. Mayor of London (a) Murder v. Vdey, 12 Ad. & E. 263. 
 
 T. Cox, supra. , Vd^ v. Bu/rder, ib. 311. White y. Steel, 
 
 («) Seg. v. Herford, 29 Law J., Q. B. 13 0. B.,N. S. 231 ;' 31 Law J., C. P. 265. 
 
 249. Foster v. Foster, 32 Law J., Q. B. 314. 
 
 {w) Death, Ex pm-ie, 18 Q. B. 647; 21 (6) De Haler v. Qae«» of PoH/ugid, 20 
 
 Law J., Q. B. 337. Reg. v. Salford, 18 Law J., Q. B. 489. Ctolnpton, J., Mam- 
 
 Q. B. 687. niiy T. Favguharaon, 30 Law J., Q. B. 21 
 
 (x) Reg. Y. ArJcvyright, 12 Q. B. 960. Mayor of London t. Cote, supra. 
 
SECT. 2.] BEFORE OE AFTER JUDGMENT. 1039 
 
 the matter, and go for a prohibition, if the judge comes to an erro- - 
 neons decision upon the facts before him, and assumes to have 
 jurisdiction when in point of law he has none (c). 
 
 Cases are to be met with where the courts have refused to grant 
 ■writs of prohibition upon motion, where the question of the cause 
 of action having arisen within oi without tlie limits of a limited 
 jurisdiction might be raised by plea in the court below, and the 
 question, being one of fact, seemed proper for the decision of the 
 inferior court, and there was no reason to suppose that it would 
 come to a wrong conclusion and exceed its jurisdiction (d); but the 
 court will grant the writ even in these cases, if it deems it advis- 
 able ; and it is laid down that the writ ought to go in any stage of 
 the proceedings below, if the superior court see sufficient reason to 
 suppose that the inferior court is exceeding, or is about to exceed, 
 its jurisdiction (e). 
 
 ProMhition after judgment and execution. — " The king's courts 
 at "Westminster," observes Lord Coke, " being informed either by 
 the parties themselves, or by any stranger, that any court, temporal 
 or ecclesiastical, doth hold plea of that whereof they have not 
 jurisdiction, may lawfully prohibit the same,'as well after judgment 
 and execution as before" (/). If goods seized in execution still 
 remain in specie in the hands of the bailiffs, or the sheriff or officer 
 of the court, the writ may command that they release the distress, 
 and restore the goods to the party from whom they have taken 
 them (y). But when goods seized under an execution no longer 
 exist in specie in the hands of the officer, but have been sold, and 
 the proceeds paid over to the execution creditor, the suit in the 
 inferior court is at an end ; everything has. been done that can be 
 done, and no prohibition can then be issued or enforced, for there 
 is nothing left to prohibit (h). 
 
 " If it appears," observes Lord Mansfield, " upon the face of the 
 proceedings, that the court below have no jurisdiction, a prohibition 
 may be issued at any time, either before or after sentence, because 
 aU is nullity ; it is coram nonjudice. Bijt where it does not appear 
 upon the face of the proceedings, if the defendant below will lie by, 
 and suffer that court to go on under an apparent jurisdiction, 
 it would be unreasonable that this party who, when defendant 
 below, has thus lain by, and concealed from the court below a col- 
 lateral matter, should come hither after sentence against him there, 
 
 (c) AnU, pp. 716—717. Jackson v. Law J., Exeh. 285 ; 1 H. & C. 338 : L R 
 Beaumont, 11 Eioh. 300. Hardy v. 2 H. of L. 239. '' 
 Walker, 23 Law J., Exch. 57. (/) 2 Inst. 602. Kitrmton v. WiUeu 1 
 
 (d) Joseph V. Menr;/, 19 Law J., Q. B. L. M. & P. 280. "' 
 369. Iteff. T. Tvtm, L. K., 4 Q. B. 407 ; (g) Ktz. Nat. Brev. 46 a. Jones v 
 38 L. J., Q. B. 228. Oiocn, 18 Law J., Q. B. 8. 
 
 (e) Cox T. Mayor, &c., of London, 32 Qi) Denton v. MarshaU, 32 Law J 
 
 Exch, 91. Poe, In re, 5 B. & Ad. 681. '' 
 
1040 PROHIBITION, [chap. XXIII. 
 
 and suggest that collateral matter as a cause of. proMbition, and 
 obtain a prohibition against it after all this acquiescence in the 
 jurisdiction of the court below " (i). , ■ 
 
 Prohibition where appeal lies. — It is no ground for refusing a 
 writ of prohibition to show that the party applying for it has a 
 power of appeal, or has appealed, against the decision of the court 
 below, for " the power of prohibition is in no case taken away by 
 the privilege of appeal " {k). 
 
 Prohibition to the ecclesiasticaL courts to restrain their proceedings 
 in a matter or cause before them will be granted whenever it is 
 shown that the court has done, or is about to do, something con- 
 trary to the general law of the land, or manifestly beyond the 
 jurisdiction of the court ; but not to correct mere irregularities 
 of practice (I), or misconstruction of the canons of the church, in 
 matters not affecting the rights and liberties of the subject at 
 common law (m). 
 
 The principle on which the writ goes to the spiritual court, as 
 stated by Blapkstone (n), is the danger of a different decision of the 
 same rights, and even of the same identical interests by different 
 courts, " an impropriety, he observes, which no wise government 
 can, or ought to, endure, and which- is, therefore, a ground of 
 prohibition " (o). The writ is granted not only wher^ a plain and 
 manifest excess of jurisdiction has been claimed or exercised by 
 the court, but also in cases where, although the subject-matter is of 
 ecclesiastical cognizance, yet the party would receive some wrong 
 or injury by the course of proceeding in the ecclesiastical court, or 
 be deprived of some benefit or advantage to which the common or 
 statute law would have entitled him. One class of those cases is, 
 where such court is proceeding to try a matter which is triable only 
 by the common law, as a custom, prescription, or modus. Another 
 where, in a case of spiritual cognizance, a collateral question arises 
 which is not properly of spiritual cognizance, in which case the 
 courts of common law oblige the ecclesiastical court to admit such 
 evidence as the common law would allow (p) ; as when a lease is 
 offered to be proved in an ecclesiastical court, and is rejected 
 because by their law two witnesses are required. Another, where 
 the spiritual court takes upon itself the construction of statute law. 
 
 (i) Suggin v. Bennett, 4 Burr. 2087. 8 Exoh. 201 ; 22 Law J., Exch. 33. Rich- 
 Yates v. Palmer, 1 D. & L. 288. Ld. ards v. Byhe, 3 Q. B. 256. Home y. 
 Abinger, Huberts v. Hvmly, 3 M. & W. Camden, 2 H. BI. 533, per Eyre C.J. 
 122 ; anU, pp. 954—955. (m) Titchmarsh v. Ohamman, 1 D. & L. 
 
 (4) Ld. Denman, C.J. , Bwrder v. Yeley, 732. 
 
 12 Ad. & E. 263. JaeTamx v. Beaumani, (n) Vol. iii. pp. 112, 113. 
 
 11 Exoh. 300 j 24 Law J., Exch. 301. (o) Burder y. Veley'l2 Jcd &'E 259 
 
 (I) 2 Inst. 599-617. BuU. N. P. 218. ■ {p) Breedon v. OiU, 1 Ld. 'Raym. 219, 
 
 Oonld V. Ca^er, 5 East, 365. Bii/rder y. 222. 
 Fe%, 12 Ad. & E. 261. Story, Bx parte, 
 
SECT. 2.] TO ECCLESIASTICAL OR COUNTY COURT. 1041 
 
 and decides contrary to the construction which is put upon the 
 statute hy the temporal courts. And many instances are found 
 where the ecclesiastical courts have been prohibited from enforcing 
 church-rates, although that was a matter within their jurisdic- 
 tion (q). But all compulsory proceedings for enforcing such rates 
 are now abolished, as has been previously mentioned. . 
 
 A prohibition will also go to the ecclesiastical courts to pre- 
 vent them from taking cognizance of any suit or proceeding for 
 defamation and slander, or for brawling in a church or churchyard ; 
 which were formerly matters of ecclesiastical cognizance (r), but 
 have now been removed from the jurisdiction of the spiritual 
 courts (s). 
 
 Notwithstanding an appeal entered in a superior court of ecclesi- 
 astical jurisdiction, the writ of prohibition will go to the inferior 
 spiritual court to stop the appeal, and all further proceeding in 
 the matter ; for " there is no reason," observes Lord Denman, " for 
 driving the subject to the expensive process of appealing from one 
 spiritual court to another, to abide the chance of a repetition of 
 the error, which, if committed, can at last be rectified only by 
 prohibition, and may be so committed as to be placed beyond the 
 reach even of that remedy." If the party has appealed, the 
 superior court not only may, but must, prohibit, wherever the error 
 involving the want of jurisdiction is apparent upon the face of the 
 proceedings, " though repeated adjudications to the same effect have 
 been made in the courts below, and even after the solemn sentence 
 of a spiritual court on final appeal " (t). 
 
 The writ of 'prohihition to restrain a county-court judge from 
 further j)roceeding in a matter over which he has no jufisdiction, is 
 a writ of right to which a person is entitled ex debito justitim. If 
 the want of jurisdiction appears upon the face of the proceedings, 
 " the courts of Westminster Hall have no discretion to award or 
 refuse the writ, but are bound to award it " (w). And if the defect 
 does not appear upon the face of the proceedings, the facts and 
 circumstances depriving the court of jurisdiction may be brought 
 before the superior court by affidavit ; and the court is bound to 
 issue the writ on fair and reasonable ground being shown for it (a;). 
 The writ lies only where the county court has assumed to act 
 without or beyond its jurisdiction. It does not lie where the 
 
 (?) Jeffrye's case, 5 Eep. 67 b. 17 "Vin. c. 32 ; but brawling Ijy persons in holy 
 
 Abr., Pbohibition, H. PI. 4. 2 Eoll. orders is still within the cognizance of 
 
 Abr. ih. pi. 5 ; ih. K. pi. 1, 10. Blank v. the spiritual courts : Ibid. 
 
 Newcomp, 12 Mod. 327. Bogen t. Dave- (t) Burder t. VeUy, 12 Ad. & E. 260, 
 
 nant, 1 Mod. 194 ; 2 Mod. 8. Anon. 12 263. White v. SUd, 12 C. B., N. S. 383 : 
 
 Mod. 416. Fe%. V. Burder, 12 Ad. & B. 31 Law J., C. P. 268. 
 
 311. (m) Burder \. Veley, 12 Ad. & E. 256. 
 
 (r) Bvanx, Ex parte, 2 Dowl. N. S. 726. {x) Jackson v. Beaumont, 11 Exeli. 302 
 
 (s) IS & 19 Vict. 0. 41 ; 23 & 24.Vict. ante, p. 716. 
 
 XXX 
 
1042 PEOHIBITION [CHAP. XXIII. 
 
 county court is the tribunal to .decide in the first instance upon 
 some preliminary matter and there has heen no hearing nor decision 
 at ali upon it (jj), nor does it lie to protect an injured party from 
 the consequences of a mistake made by the judge upon a question 
 of fact {z), or in point of law (a). A mistalce in the latter respect 
 would, ordinarily speaking, be matter of error ; but the Act creating 
 the county courts has taken away that form of remedy. Therefore, 
 where the defendant, having been summoned- to the county court 
 in an action for goods sold and delivered, set up as a defence that 
 the plaintiff had already recovered judgment against him for the 
 same debt in another court, and the plaihtiiff admitted that it was 
 so, and the county-court judge nevertheless overruled the defence, 
 and gave judgment for the plaintiff, the court refused a rule for a 
 prohibition, saying that the decision of the judge was final, whethier 
 it was right or wrong (6). 
 
 ■ We have seen that every judge of an inferior court must have 
 some cause of action, charge, or complaint before him, into which 
 he has authority to inquire, or his proceedings will be extra- 
 judicial (c) ; but if a county-court judge having a plaint before him 
 for a cause of action within his jurisdiction, finds a verdict for the 
 plaintiff without a particle of evidence to support it, this is, it 
 seems, no ground for a prohibition («Z). It wotdd be desirable, 
 however, that there should be some ineans of preyehting a verdict 
 or judgment from being enforced under such circumstances. 
 
 If the claim in the county court is substantially for a matter 
 excluded from its jurisdiction, but the plaint and particulars are 
 framed so as to show a cause of action within its jurisdiction, the 
 superior court will look beyond the record in the county court to 
 ascertain the real nature of the claim (e) ; and if that appears to 
 be not within the cognizance of the court, a prohibition wUl be 
 granted. Thus, where a plaintiff in his plaint and particulars sued 
 for a debt of 18^., for money paid and for loss of time in attending 
 before magistrates for, and on behalf of, the defendant, and it 
 appeared that the action was brought to recover expenses incurred 
 by the plaintiff by reason of his having been wrongfully summoned 
 before certain magistrates at the instance of the defendant, it was 
 held that the cause of action, if any existed, was for a malicious 
 prosecution, over which the county court had no jurisdiction; and 
 the plaintiff could not, by putting down the items of his expenses 
 
 (y) Re Skypton Industrial, &c.. Society (6) Toft v. Sayriir, 5 C. B. 162. Smiili 
 
 T. jPrmce, 33 Law J., Q. B. 323. \. Mm/or of London, 6 yLoA.. 18. 
 
 258 
 
 iz) BMmion v. Lenaghm, 2 Exoh. 337. (c) Eopper, In re, mte, p. 638 ; and 
 
 (a) Lexden Union {Ouardmns of) t. see ante, p. 697. 
 
 {d) Zexden Union y. Sou 
 
 , Exoh. 316. ■ 
 
 (e) Ante, pp. 716—717. 
 
 Southgate, 23 Law J., Exch. 316. See (d) Zexden Union t, Souihgate, 23 Law 
 
 Farrow V. Hague, 33 Law J., Exch. J., Exoh. 316. ' 
 
SECT. 2.] . TO COUNTY COUliT. 1043 
 
 and pecTiniaiy loss, concoct a debt for the purpose of giving an 
 apparent colourable authority to the county-court judge to take 
 cognizance of the matter (/). 
 
 If, under colour of proceeding upon a plaint for a trespass by 
 false imprisonment, the complainant and the court proceed to try 
 what is in substance and effect an action for a malicious prosecu- 
 tion, a prohibition wiU issue to prevent any proceeding being taken 
 upon the judgment. Thus, if the defendant, upon a suspicion of 
 felony, has made a complaint and charge to the police, upon -which 
 they have themselves acted, and taken the plaintiff into custody, 
 then, as trespass for false imprisonment is not maintainable for that, 
 but an action on the case, a prohibition will go to the county court, 
 if it proceeds to try and give judgment. But where the defendant 
 has expressly directed the constable to take the plaintiff into 
 custody, and has thereby rendered himself amenable to an action 
 of trespass for an assault and false imprisonment, and the plaintiff 
 brings his plaint for that act of trespass only, the county' court has 
 jurisdiction to try it, though the other circumstances in the case 
 would properly be the subject of an action for a malicious prosecu- 
 tion (g). So, previous to the late Act conferring an ec[uitable 
 jurisdiction on county courts {ante, p. 952), plaints in such courts 
 for legacies or shares of a residuary estate bequeathed by will have 
 been prohibited (h). 
 
 If a plaintiff, having one entire cause of action for an amount 
 exceeding what the county court is entitled to take cognizance of, 
 splits his cause of action into divers causes of action, and founds 
 thereon divers suits in the county court, a prohibition will be 
 granted to stop the unlawful proceedings (*). But it is competent 
 for a plaintiff to abandon the excess of his claim above 50?., in order 
 to give the county court jurisdiction, by giving notice of abandon- 
 ment to the defendant on or before the hearing of the cause (k) ; 
 but the abandonment must be made either by the plaintiff himself, 
 or by some person authorized on his behalf. The judge has no 
 power to make the abandonment at the trial as an act of his own, 
 and if he does so aU proceeding upon the judgment may be arrested 
 by prohibition (I). 
 
 We have seen that, in certain cases, a plaintiff in the county 
 
 (/) Ifunt T. North Staff. Sail. Co., 2 Exoh. 157. Catchmade's case, 6 Mod. 91. 
 
 H. & N. 451 ; 26 Law J., Bxch. 374. Kim/pton v. TfiZ%,.9 C. B. 719. 
 
 {g) Chivers t. Savage, 5 Ell. & Bl. 701. (k) Isaac -v. Wyld, 7 Exch. 163. The 
 
 Chiest V. Warren, amte, p. 967. county-court rules require' notice of the 
 
 (h) Bea/rd v. Sine, 10 W. R. 45. Hew- abandonment to be entered on the parti - 
 
 ston T. PMUipps, 11 Exeh. 699 ; 25 Law cularg of demand, E. 43. See North v. 
 
 J., Exch. 133. Longiottom v. Longbottom, HoVroyd, post, p. 1051. 
 8'Exoh. 208; 22 Law J., Bxch. 76. Pmrs {l)SUl, In re, 10 Exch. 726 ; 24 Law 
 
 V. Wilson, 6 Exch. 833. J., Exoh. 137. Boppe/r, In re, ante, p. 
 
 (i) Orimhly v. Aehroyd, 17 Law J., 638. 
 
 X X X 2 
 
1044 PROHIBITION [CHAP. XXIII. 
 
 court may, by leave of the judge, sue in the district where the cause 
 of action or part of it arose. If, therefore, an action is brought in 
 the county court of any other district, the progress of the suit may 
 be arrested by prohibition,*.unless the defendant dwells or carries on 
 his business in the district, as previously mentioned (m). 
 
 When a question of title to land, or to any incorporeal heredi- 
 tament, beyond the value to which the jurisdiction of the county 
 court is limited (ante, p. 949), is raised before such court, or any 
 other inferior tribunal, having no power to adjudicate upon the 
 question, it is the duty of the court, as we have seen, to inquire 
 into the facts, so far as may be necessary to enable them to ascer- 
 tain whether the title really does come in question, and whether 
 the amount is beyond their jurisdiction; but if they come to a 
 wrong conclusion, and proceed to hear and adjudicate when they 
 ought not to have done so, all proceedings upon the judgment may 
 be stayed by prohibition (n). 
 
 A county-court judge can neither give . himself jurisdiction 
 where he has it not, nor deprive himself of jurisdiction where he 
 has it, by an en'oneous decision on a matter of fact. A writ of 
 prohibition sometimes issues to a county-court judge to prohibit 
 him from proceeding in one direction, in order to compel him to 
 exercise his judicial functions in another direction, where he has 
 declined jurisdiction, and was wrong in so doing (o). . 
 
 Where a county-court judge having heard, and adjudicated 
 upon, a plaint before him, and given a verdict for the defen- 
 dant, afterwards and after the judgment had been recorded, and 
 the parties had left the court, rescinded his decision, and ordered 
 the cause to be adjourned to the next court, and then gave 
 judgment for the plaintiff, it was held that, having decided the 
 case in the first instance, he was functus officio, and could not 
 afterwards alter his judgment ; that he had therefore exceeded his 
 authority in giving the second judgment, and that a prohibition 
 must go to restrain all proceedings thereon. But the judge 
 may alter his judgment before it is recorded, and the record 
 may be amended to correct a mistake, provided it be done 
 the same day, and at the same court, in the 'presence of the 
 parties {p). 
 
 If a county-court judge has entertained an application for a 
 new trial, and pronounced his decision upon it, and entered his 
 
 (m) Ante, p. 947. Barnes t. Marshall, 24 Law J., Excli. 223. Lawford v. Part- 
 
 18 Q. B, 785. Buckley x. Hann, 5 ExcL ridge, ante, p. 949. 
 
 43. WUde V. Sheridan, 21 Law J., Q. B. (o) Sardy v. WaZher, 23 Law J., Eioh. 
 
 260; and see Neweombe v. De Boos, 29 57. 
 
 ^^^•'n^- ^- ^ ■ (P) Jo^ ■^- -^onM. 17 Law J., Q. B. 
 
 (n) Thompson v. Ingham, Chew v. Hoi- 170. 
 royd, ante, p. 950. Knowles v. HoUen, 
 
SECT. 2.] TO LORD MAYO]{'S COURT. 1045 
 
 judgment of record, he cannot rescind his judgment and entertain 
 a fresh application (q). 
 
 A prohibition cannot be issued to the county court after execu- 
 tion, and a le\'y and a payment of the amount thereof to the 
 execution- creditor ; for the action is then at an end, and, there being 
 no further proceeding to be taken in the matter, there is nothing to 
 prohibit (r). 
 
 Whenever objection is takeii to the jurisdiction of a county- 
 court judge, it is his duty to set out the facts upon the record, 
 so that the superior courts may see the grounds upon which he 
 proceeded, and the subject may not be left without the redress to 
 which he is by law entitled (s). He ought to assist parties in 
 obtaining their right to a decision of the superior court (t). 
 
 Prohibition to the Lord Mayor's Court cannot be issued when 
 the question of jurisdiction depends upon a matter of fact proper 
 for the determination of that court, and the want of jurisdiction 
 does not appear upon the face of the proceedings; for by the 
 Mayor's Court of London Procedure Act (u) it is enacted, that " no 
 defendant shall be permitted to object to the jurisdicticfn of the 
 court, in or by any proceeding whatever, except by plea." Where, 
 therefore, a person was sued for a debt in the Lord Mayor's Court, 
 and it appeared that no part of the cause of action arose within 
 the locality over which the court had jurisdiction, it was held that 
 the defendant must raise the objection to the jurisdiction by plea, 
 and that the court must decide upon it, and that a prohibition to 
 prevent it from so doing could not be granted (v). But this does 
 not apply to a garnishee who i& sued in the Lord Mayor's Court, 
 who may apply for a prohibition in the first instance accord- 
 ingly (w), 
 
 Proceedings in prohihition. — By 1 Wm. 4, c. 21, s./ 1, it is 
 enacted, that an application for a prohibition may be made on 
 affidavits only, and in case the party applying shall be directed to 
 declare in prohibition, the declaration shall be expressed to be, on 
 behalf of such party only, and not on his behalf and that of the 
 Crown, and shall set forth in a concise manner so much only of 
 the proceeding in the court below as may be necessary to show the 
 ground of the application, and shall conclude by praying a writ of 
 
 (a) Ifossop V. Gt. NoHhem Sail. Co., ' Bxch. 102. Jackson v. Beaumont, U iJ. 
 
 16 C. B. 580 : 17 ib. 130. 303. , • 
 
 (r) DenUm v. Marshall, 32 Law J., («) 20 & 21 Vict. c. cItu. b. 15. 
 
 Bxch. 91 J 1 H. & C. 654.' Poe, In re, 5 {v) Manning v. Farguha/rson, 30 Law J., 
 
 B. & Ad. 681. RoUnson v. Lenaghan, 2 Q. B. 22. 
 
 Exch 333 ' (■'*) Ooxv.Mayor,&c.,ofLondon,l'K. 
 
 . (s) Parke, B., Pears v. Wilson, 6 Exch. & C. 338 ; 32 Law J., Exch. 285 ; L. S., 
 
 838; 2 H. o£ L. Ca. 239. See Banque de Credi 
 
 (t) U»,Ttirt, B,, Mungean Y.WheaOei/, 6 Commercial v. De Gas, L, K., 6 C, P 
 
1046 PROCEEDINGS IN PROHIBITION. [CHAP. XXIII. 
 
 prohibition;, to which declaration the defendant may demur or 
 plead such matters as may be proper, to show that the wjit ought 
 not to issue, and the party in whose favour judgment shall he 
 given shall be entitled to costs, &;c. (x) ; and in case a verdict shaU 
 be given for the party plaintiff, it shall be lawful for the jury to 
 assess damages. " The legislature," observes Erie, C.J., " has not 
 given us the slightest intimation what kind of damages is here 
 meant. Perhaps what was intended was to give damages in case 
 execution had issued in the court below, and the goods of the 
 plaintiff in prohibition had been, taken by a proceeding which 
 afterwards turned out to be contrary to law. I am, however, 
 clearly of opinion that the legislature did not intend that the 
 plaintiff, who declares in prohibition, should recover as damages 
 the costs of the proceedings in the ecclesiastical court, upon a 
 verdict on the prohibition in his favour" (y). 
 
 The application for a prohibition may be made to either of the 
 superior courts, or to a judge at chambers ; but, except under special 
 circumstances, it should be made to the latter' in the first instance. 
 During vacation the application may be made to the Court of 
 Chancery (2). The affidavit used in moving for the rule should set 
 forth the facts necessary to support the application, and should be 
 entitled in the court to which the judge before whom the appli- 
 cation is made belongs, but should not be entitled in any cause (a). 
 But after a rule has been granted, the affidavits used in showing 
 cause may be entitled in the cause (i). The judge's decision, if he 
 refuses. a rule, may be reviewed as in ordinary cases (c). 
 
 The rule or summons to shoiv cause why a writ of pvhibition 
 should not'issue to a county court operates as a stay of proceedings 
 in -the cause, if the superior court or judge so directs, until the 
 determination of the rule or summons, or until the superior court 
 or judge thereof otherwise orders ; and the judge of the county 
 court is required to adjourn the hearing of the cause untO. the 
 matter is determined. When the writ is issued to the judge of 
 the county court, the matter is now finally disposed of by rule or 
 order, and no declaration or further proceedings in prohibition are 
 allowed (d). 
 
 Notice of the issue of the writ must be given to the opposite 
 
 (a) Where, therefore, the rule for a 12 Law J., Q. B. 68. « 
 
 prohibition is made absolute without (6) Breedon v. Ca^, 9 Jur. 781, Cor- 
 
 pleadings, there is no "judgment " within ner's Crown Pr., Pbohibition. 
 
 the meaning of the section, and the appli- (c) 13 & li Vict. c. 61, s. 22, Chitt. 
 
 cant is not entitled to his costs : Mx parte Arch. Pr., 11th edit., 1725, Pbohibition 
 
 Overseers of Everton, L. R,, 6 0. P. 245. (d) 19 & 20 Vict. c. 108, ss. 40, 42. As 
 
 Ml I"^'"*^ ^* **^''' ^2 ^'^ '^•' 0. P. 2 J to costs in the county court, ib. ss. 40, 
 
 J3 0, B., N. S. 825, 41. As to prohibition in copyright cases 
 
 (z) Re Batermn, L. E., 9 Eq. Ca. 660, in the county court, 21 & 22 Vict, 70, 
 
 to) &Q,m., *'« f<i,rte, 3 P„ W, S. 410 j b, 9, " \ ' ' ' 
 
SECT. 3.] CERTIOEARI. 1047 
 
 party, and the writ lodged with the registrar of the county court, 
 when the writ is issued to that court, two clear days hefore the 
 day fixed for the hearing of the cause, or the judge may order the 
 party obtaining the writ to pay the costs of the day, unless some 
 order respecting costs has been made by the judge or court 
 above (e). 
 
 Refusal of writ when final. — When a superior court, or a judge 
 thereof has refused to grant a writ of prohibition to the county 
 court, no other superior court or judge can grant the writ. But 
 the party going before a judge in the first instance, may appeal 
 from his decision to the court, and a second application may be 
 made to the same court or judge, on grounds different from those 
 on which the first application was founded (/). 
 
 Of the setting aside writs of prohibition issuing out of Chancery. — 
 By the 12 & 13 Vict. c. 109, it is enacted (s. 39), that in every 
 action, suit, and proceeding on the common-law side of the Court 
 of Chancery, it shall be lawful for the superior courts of common 
 law, and the judges thereof, and they are thereby required, to hear 
 and determine all matters and applications incident to such actions, 
 &c. ; and it has been held that the superior courts have jurisdiction 
 under this statute, to set aside a writ of prohibition improperly 
 issued out of the Court of Chancery to a county court {g). 
 
 SECTION III. 
 
 0/ THE REMEDY BY CERTIO KARL 
 
 The writ of certiorari is a writ issued out of Chancery (7i), or out 
 of the Court of Queen's Bench, or some one or other of the Queen's 
 courts at Westminster, for' the purpose of removing some cause, 
 suit, or proceeding from an inferior to the superior court, either for 
 the purpose of examining into the legality of the proceedings, or 
 annulling or quashing an order or judgment of such inferior court 
 given in a matter over which the court had no jurisdiction, or for 
 the purpose of giving a defendant, sued in such inferior court, 
 surer and more certain justice before a higher tribunal. 
 
 Where the inferior court has jurisdiction to try the cause,but it is 
 sought to remove it on the ground that it is a fit matter for the 
 decision of a superior court {fost, pp. 1049, 1050), the writ must 
 
 (e) 19 & 20 Vict. o. t08, s. 41, Chitt. Arch. Pr., llth edit., part xii. 
 
 ) f\ jiid s 44, (h) See- Davies v. McHenry, L, B,, 3 
 
 {0 Baddeley V. Denton, i B^cli, 508 ; Ec|. Ca, 200,; 6 ibid, m. 
 
1048 CERTIORARI [CHAP. XXIII. 
 
 be obtained and served before issue has been joined in the inferior 
 court, and before the first juryman has been sworn (i), except 
 in those cases vrhere the writ is applied for "with the view of 
 enforcing in the superior court the judgment of an inferior 
 tribunal (j). 
 
 Where the inferior court has no Jurisdiction, on the other hand, 
 over the cause or matter brought before it, the writ may be applied 
 for after judgment and execution (ante, pp. 1039, 1040), if the 
 want of jurisdiction appears upon the face of the proceedings, or 
 exception to the jurisdiction was taken at the trial, and the cir- 
 cumstances depriving the court of authority in the matter were 
 brought to the knowledge of the judge (a7ite, pp. 638, 639, 687, 
 688), and the objection was improperly overruled, and judgment 
 wrongfully given against the defendant (ante, pp. 639, 641, . 716, 
 717) ; but. where the want of jurisdiction does not appear upon 
 the face of the proceedings, and no objection to the jurisdiction 
 was raised by the defendant in the court below, until after the 
 matter had been decided against him (ante, pp. 687, 688, 954, 
 955); or tjie defendant has failed to draw the attention of the judge 
 to the facts and circumstances depriving him of jurisdiction, the 
 court will not, as we have seen (ante, pp. 638, 639, 699), grant the 
 writ, or interfere in the matter. Thus, where an application was 
 made for a; certiorari to bring up an order of sessions for payment 
 of costs, for the purpose of quashing it, on the ground that the 
 costs were taxed after the sessions had expired, and the authority 
 of the court had ceased (k), but it appeared that the applicant had 
 attended the taxation, and made no objection thereto whilst it was 
 going on, it was held that he had waived his right to object, and 
 had no claim to the writ (I) ; for wherever a party makes no ob- 
 jection to the jurisdiction of the court whilst the case is proceedincr, 
 but apparently acquiesces, and suffers ,the court to act without 
 protest or objection, as if it had jurisdiction, down to actual judg- 
 ment, it is then too late to apply for a certiorari, unless the defect 
 appears upon the face of the proceedings (m). 
 
 Limitation of time for issuing the vjrit.—By 13 Geo. 2, c. 18, 
 no writ of certiorari is to be granted to remove any conviction, &c., 
 before a justice of the peace, unless such certiorari be applied for 
 within six calendar months next after the conviction shall be 
 
 (i) 43 Eliz. c. 5, s. 2 ; 21 Jae. 1, c. 23, execution thereon • Morebm v HoU 10 
 6. 2. Laverach .v. Bmn, 3 M. & W. 62 Exch 707 • 24 Law T T-r^h Vfio ' 
 Holroyd, J., Walker v. Oann, 7 D. & E. (h Z 'y L«f7l O B 740 
 
 U) Chitt. Arch. Pr., Uth edit., Ce«. Z^' ^kf^' ^^^' ^'■"^" ""■ ^"'^' 
 TioBAKi. A county-court judgment is fmf Yat^ v Pnlmm- i -n * t ooo 
 
 not removable for the purpose of having ^ ' ^"^" ' ^^■^^- 288. 
 
SECT. 3.] TO REMOVE CAUSES FROM COUNTY COURT. 1049 
 
 made (?i). But there is no general rule of practice, except in those 
 cases, which requires the application for the certiorari to be made 
 within that time (o). 
 
 Grounds for the issioe of the writ may he established either by 
 showing that the inferior court had no power to adjudicate upon 
 the matter brought before it, or that it has exceeded its authority 
 in adjudicating upon it, and that objection was taken to the juris- 
 diction before the court gave judgment in the matter (^), or that 
 dif&cult and important questions of law will arise, and have to be 
 decided, or that a fair trial cannot be had, or an impartial jury 
 be obtained, or that the judge or magistrate who has adjudicated had 
 some personal interest in the subject-matter of the suit or proceed- 
 ing (2). A certiorari is never granted where a procedendo cannot 
 be awarded. Where, therefore, a magistrate gives notice that he 
 objects to be sued in the county court {ante, p. 725), and by so 
 doing puts an end to the proceedings there, he cannot afterwards 
 remove them into the superior court (r). Nor will it be granted 
 to remove a provisional order of a secretary of state, under 21 & 
 22 Yict. c. 98, empowering a local board to put in force the Lands 
 Clauses Act, with respect to the purchase of land ; such an order 
 having no validity till confirmed by Act of Parliament (-s). 
 
 - The writ lies at common law, as we have seen, for the purpose 
 of removing convictions and orders of magistrates made without 
 jurisdiction, although the writ is expressly taken away by statute 
 {ante, pp. 713-715), for a legislative prohibition of removal by 
 certiorari applies only to cases which the inferior court has autho- 
 rity to try, and not to causes which are not within the cognizance 
 of the inferior tribunal (f). A writ of certiorari is not granted as 
 of course, either when applied for on behalf of the Crown, or where 
 the applicant applies as one of the pubKc, but where the appli- 
 cant has, by reason of his local situation or otherwise, a peculiar 
 grievance of his own, the writ is grantable ex debito jiistitice (u). 
 
 Certiorari to remove causes from the county court. — When the 
 claim in the county court exceeds 5Z., and the court has jurisdiction 
 over the subject-matter of the action, the issue of the writ is dis- 
 cretionary with the judge of the superior court to whom the appli- 
 cation is made, and is not a matter of right. It is to be granted 
 • upon such terms as to payment of costs, and giving security for 
 
 (to) As to the casual absence of the (r) We^on v. Smyd, 1 H. & N. 703. 
 
 judge on the last day for making the («) Frewen t. Hastings £ocal Board, Zi 
 
 application : Reg. v. AUen, 33 Law J., Law J., Q. B. 159. And see Meg. r. New- 
 
 M. C. 98. lorough, L. R., 4 Q. B. 585 ; 38 L. J., M. 
 
 (0) Reg. V. Mayor of Sheffield, L. K., 6 C. 129. 
 
 Q. B. 652. (0 Reg- V. Badger, 6 Ell. & Bl. 137. 
 
 (p) Rees V. WitUams, 7 Exch. 51. (u) Rsg. v. Justices of Swrey, L, R., 5 
 
 (9) Reg. V. Suffolk, 18 Q. B, 416 ; aiite, Q. B. 466, 
 p. 688, 
 
1050 " CEETIOKAEI, [CHAP. XXIII. 
 
 debt or costs, or sucli other terms as the judge shall think fit ; 9 & 
 10 "Vict. c. 95, s. 90. 
 
 The 13 & 14 Vict. c. 61, s. 1-4, giving a right of appeal to some 
 one or other of the superior courts, from the decision of the county- 
 court judge, in cases where the amount claimed exceeds 201. 
 (infra), and enacting (s. 16) that no judgment, order, or deter- 
 ,mination of any judge of a county court, nor any cause or matter 
 brought before him, or pending in his court, shall be removed by 
 appeal, motion, writ of error, certiorari, or otherwise, into any other 
 court whatever, save and except in the manner and according to 
 the provision thereinbefore mentioned, does not affect the right of 
 removal by certiorari, where the damages claimed exceed 51. ; for 
 by s.' 2 of that statute it is declared, that that Act, and the 9 & 10 
 Vict. c. 95, shall be read and construed as one Act, just the same as 
 if the several provisions of the former statute, not inconsistent with 
 the provisions of the later statute, were repeated and re-enacted 
 therein. "The provision of the Act of 9 & 10 Vict. c. 95, is by- 
 no means inconsistent," observes Parke, B., " with the right of 
 appeal given by 13 & 14 Vict. c. 61, ss 14, 15. They may both 
 well stand together, and, therefore, the last-named statute is to be 
 read as if that clause were in it" (x). The writ of certiorari, there- 
 fore, for the removal, of a cause from the county court, where the 
 damages clauned exceed 51., is untoucljed by the 13 & 14 Vict, c. 61, 
 s. 16(2/). 
 
 Where the claim does not exceed 51., and the court has jurisdic- 
 tion to try the cause, a certiorari can only be obtained in cases 
 which the court, or a judge, deem" fit to be tried in the superior 
 court, and where the party applying for the writ gives security, to 
 be approved of by one of the masters, for the amount of the, claim 
 and the costs of the trial, not. exceeding in all lOOZ. ; and assents to 
 such terms as the court or judge may think fit to impose ; 19 & 20 
 Vict. c. 108, s. 38 (_z). 
 
 When the writ is sought for on the ground that the county court 
 has no jurisdiction in the matter, it is grantable ex debito justitice, 
 and as a matter of right, on' fair ground being shown for contending 
 that the court h^s no jurisdiction («). 
 
 Of the concii/rrent remedy ly appeal and by certiorari — County 
 court appeals. — By 13 & 14 Vict. c. 61, s. 14, a right of appeal against 
 the decision of the county court judge is given, whenever the amount 
 recoverable by action in the county court exceeds 20^., and the 
 
 (x) Parker v. BHst. and Ex. Rail. Co., Iz) As to the mode of eivinar security, 
 
 6 Bxoh. 184; 20.Law J„ Exoh. 112. see ss. 70, 71. 
 
 Broqhmm v. Wenham, 30 Law J., Q. B, (a) Jachson v. Beaumont, 11 Escli. 300 1 
 
 278 ; 2 L. M. & P. 233. ante, v. H8, et eeq. 
 
 (^) Mo7^ V, Qx^n^ 9 Exqh, 503, 
 
SECT. 3.] PliOCEEDINGS IN. 1051 
 
 defendant is " dissatisfied witli the determination of the court in 
 point of laWj or upon the admission or rejection of any evidence ;" 
 but notice must be given within ten days to the opposite party, or 
 his a,tfc0rney, and security must also be given for costs, or the appeal 
 cannot be heard (6). The right to have such security given may 
 however be waived (c). It is not the amount for which the action 
 is brought that determines the right of appeal, but " the amount 
 recoverable," or the sum that, may reasonably be expected to be 
 recovered (d). The plaintiff cannot? abandon part of his claim at 
 the trial by permission of the judge, so as to deprive the defendant 
 of his right of appeal (e). By 30 & 31 Vict. c. 142, s. 13, an appeal 
 may be brought in actions of ejectment, or in which title comes in 
 question, and by leave of the judge in actions " in which an appeal 
 is not now allowed," if the judge thanks fit. 
 
 The statutory power of appeal does not, as we have seen, in any- 
 wise abridge the common-law right of a party to a certiorari (/) ; 
 and if an appeal has been actually entered, a certiorari may, never- 
 theless, be obtained for the purpose of annxdling an order or 
 judgment on the ground of want of jurisdiction, or excess of juris- 
 diction (g). 
 
 The application fw the writ should be made to a judge at 
 chambers in the first instance, and not to the court Qi); and an 
 appeal lies from his decision to the full court. A certiorari to 
 remove a plaint from the county court may issue on an ex parte 
 application, without notice to the opposite party {%) ; but when it 
 is sought for to. remove an order of justices, or an order of sessions, 
 six days' notice of the application inust be given in the manner 
 previously^mentioned, to the justice or justices making the order, 
 or to two justices present at the sessions wTien the order was 
 made Qc). The application must be made by, or in the name of, the 
 party aggrieved by the order or proceeding, and not by any other 
 person, not being his attorney or agent duly authorised to act on 
 his behalf (T). 
 
 Affidavits when necessary. — When the application for the writ is 
 founded on the want of jurisdiction, and the defect appears upon 
 the face of the proceedings, an affidavit is not necessary for the 
 support of the application ; but every suggestion that does not 
 appear upon the face of the proceedings, but is collateral and out 
 
 (6) Stme V. Dean, E. B. & B. 504 ; 27 ante, p. 1041. 
 
 L. J., Q. B. 319. (A) RobeHion v. Womaeh, 19 Law J., 
 
 (c) Pwrh Gate Iran Co. v. Coates, L. R., Q., B. 367. Bowen v. Evans, 3 Exoh. 
 5 C. P. 634. 111. Staiplea v. Acdd. Death Ins. Co., 10 
 
 (d) Mayer y. Burgess, 4 BU. & Bl. 655. W. E, 59 ; and see Corner's Crown Pr. 
 
 (e) SceiVortAv. 5^oZroyti,L, E., SExch, Cebtiobabi. '' 
 69. ■ (*') Symonds v. DmscLale, 2 Esoh, 533, 
 
 (/) Ante, pp. 38, 711, 725. (i) Heg. v. Sufolk. 18 Q. B. 416. 
 
 {g) JcKkson v, Beaumont, 11 ^xch, 300 ; {1} Reg. v, Ball, 11 Jr, 0, L, :r, 380, 
 
1052 PEOCEEDINGS IN CERTIORARI. [CHAP. XXIII. 
 
 of the proceedings, ought to be verified by affidavit (m). All the 
 material facts of the case should be stated by affidavit, that the 
 judge may be able to impose such terms upon the parties as he, iu 
 the exercise of his discretion, may think requisite (n). The rule 
 for the writ is absolute in the first instance (o). 
 
 Notice of the issue of the writ must be given, and the writ itself 
 lodged with the registrar, as in the case of the issue of a writ of 
 prohibition (p). 
 
 The effect of the issue of the writ is to stay all proceedings in 
 the inferior court, if the superior court or judge thereof so directs, 
 as in the case of the issue of a prohibition (2). It is the duty of a 
 county-court judge to receive and yield obedience to the writ, and 
 do all that is necessary to be done for the removal of the cause ; 
 and if he fails to do so, the court will issue an attachment against 
 him (r). 
 
 The effect of the refusal of a writ of certiorari, and the power of 
 making a second application, is the same as in the case of the 
 application for a writ of prohibition (s). 
 
 Proceedings after removal. — After the cause has been removed 
 by certiorari, the plaintiif may proceed or not, as he thinks fit (t). 
 
 Quashing of the wi'it — Procedendo. — If the writ of certiorari has 
 been improvidently issued in a case where it did not lie (u) ; or if 
 it has been misdirected, or is otherwise bad in law ; or if it appears 
 from the admission of the party suing it out, that he issued it 
 merely for purposes of delay {x) ; or if it is shown that the rules 
 and practice, of the court have not been complied with, the writ 
 may be quashed, and a procedendo awarded, which is a writ 
 sending the case back for trial to the inferior court. The writ of 
 procedendo may be granted ex parte by a single judge at chambers; 
 and it is in his discretion whether the order for the issue of the 
 writ shall fce made upon a summons to show cause, or immedi- 
 ately (y). The writ of procedendo may, in its turn, be quashed, 
 and the cause again remanded to the superior court, on the ground 
 that the procedendo itself has been improvidently awarded (s). 
 
 (m) Bwggin v. Bewnett, i Burr. 2037 ; (s) 19 & 20 Vict. c. 108, s. ii, ante 
 
 ante, pp. 716—717, 758. Comer's Crown p. 1047. 
 
 Pr. Apfidavits. ' (*) Garton t. Gt. West. Sail. Co., ante, 
 
 (n) Parher v. Brist. and Ex. Bail. Co., p. 1022. 
 
 6 Bxch. 184. («) Bees t. Williams, 21 Law J., Exoh. 
 
 (0) Pamiey v. Gooday, 3 Dowl. 605. 24. 
 
 Dowding v. Gt. West. Bail. Co., 3 Jur. N. (x) Zandens v. Shid, 3 Dowl. 90 
 
 S. 1130. , „ „ <3') ^S- V. Scaife, 18 Q. B. 773 ; 21 
 
 (p) 19 & 20 Vict. u. 108, 8. 41, anU, Law J., M. 0. 2'2I. Comer's Crown Pr. 
 
 p. 1046. Pboobdbndo. ' 
 
 (9) Ibid. 8. 40, ante, p. 1046. (2) Chitt. Arch. Pr., llth edit., Cer- 
 
 (r) Mungean v..Wheatley, 6 Excn. 88. tiosari. 
 
1053 
 
 CHAPTER XXIV. 
 
 OF THE REMEDY BY Mj\JSrDAMUS. 
 
 Section I. — Of the remedy Vy mandamus 
 for the vindication of rights and the en- 
 forcement of the performance of public 
 duties. — The prerogative -writ of man- 
 damus — Mandamus to judicial officers 
 to hear and adjudicate — Mandamus to 
 ministerial officers, and to overseers 
 and rectors — Of the granting of the 
 writ where there is another remedy — 
 Mandamus to compel the suirender of 
 public documents, or to restore to a 
 public freehold office — How a freehold 
 office may be forfeited and vacated — 
 Offices held at will — Visitatorial power 
 excluding the proceeding by manda- 
 mus — Mandamus to restore the name 
 of a medical practitioner to the medical 
 register, — to test the validity of an 
 election, — to elect corporate and public 
 officers, — to enforce an appointment to 
 a public or corporate office, — to make 
 calls, — to levy rates and discharge 
 judgment-debts, &c., — to mate com- 
 pensation for lands taken and injuries 
 
 inflicted in the exercise of statutory 
 powers — Laches and delay in applying 
 for the writ — Proceedings upon a man- 
 damus—Conditions precedent to the 
 issue of the writ- — Parties to whom the 
 writ is to be directed — Service of the 
 writ — Time fortaking objections — Pleas 
 to the return — Damages and costs — 
 Actions and informations for a. false 
 return — Judgment non obstante vere- 
 dicto — Attachment for disobedience of 
 peremptory writ. 
 Section II. — Of the claim to a writ of 
 mandamus in an action at common law, 
 — Of the union of an action in respect 
 of a private injury with a claim for a 
 mandamus— Actions in which a claim 
 for a mandamus may be sustained — 
 Actions in which a claim for a manda- 
 mus cannot be sustained — The declara- 
 tion in the action — Pleadings — Da- 
 mages — Costs— Orders for the rectifica- 
 tion of registers of shareholders. 
 
 SECTION I. 
 
 OS THE EEMEDY BY MANDAMUS FOR THE VINDICATION OF EIGHTS, 
 
 AND THE EXFOECEMENT 0| THE PERFORMANCE OF 
 
 PUBLIC DUTIES. 
 
 The prerogative writ of mandamus is a writ issuing in the 
 Queen's name from the Court of Queen's Bench, directed to some 
 chartered, corporate, or public body, or official, or other person, 
 commanding the performance of soine public act, or duty, therein 
 specified, in the performance of which the party claiming the writ 
 is interested, or by the non-performance of which li e is aggrieved 
 or injured (a). It was termed a prerogative writ , because the 
 
 (a) Reg. r. Ohicheiter {Bishop of), 29 Law J., Q. B. 23. Briggi, Expwrte, 28 %b. 272. 
 
1054 MANDAMUS [CHAP. XXIY. 
 
 power to award it rested with the justices of the Court of Queen's 
 Bench, in which court the sovereign is supposed to be personally 
 present (b). Through the medium of this writ the Court of Queen's 
 Bench exercises control over all public officers, corporations, 
 chartered companies, and persons intrusted with extensive powers 
 for public purposes, and enforces the exercise of such powers within 
 reasonable limits, more especially where there is no other efficient 
 or convenient remedy (c). The issue of the writ is in the discre- 
 tion of the court and will not be ordered, if the effect of it will be 
 to enable some persons to avoid the performance of some duty 
 which they ought in equity to perform (d). 
 
 Maiydamus to enforce statiitory, corporate, and public duties and 
 obligations. — Whenever the law requires a thing to be done, and 
 the public at large are interested in the doing of it, a mandamus 
 will go to order it to be done by the person upon whom the TDbliga- 
 tion of doing it is imposed. If he is to act according to his dis- 
 cretion, and he will not 'act or even consider the matter, the court 
 may compel him to put himself in motion to do the thing, though 
 it cannot control his discretion (e). Permissive words, authorising 
 a thing to be done^ are often held to be directory and compulsory, 
 when the power or authority has been given in order that it may 
 be exercised for the public benefit, and the public interests mani- 
 festly require the authority to be acted upon (/). 
 
 . Thus, where the charter - of incorporation of an ancient town, 
 conferring various municipal privileges on the town, provided "that 
 the mayor and jurats may, for the future, hereafter have and hold, 
 and have power to hold, a court of record, to hear and determine 
 all pleas, actions, complaints, &c.," it was held that the words were 
 compulsory, and that they were bound to hold the court for the 
 benefit of the inhabitants {g). So a mandamus will go to the 
 mayor and assessors of a borough, commanding them to hold a 
 court to revise the list of burgesses (A). 
 
 But permissive words will receive their natural meaning, and 
 will not be made obligatory, unless it plaialy appears from the ' 
 general context of the instrument in which they are found that 
 they were intended to be obligatory, or unless it be shown that the 
 public interests manifestly require such a construction to be put 
 upon them. Eailway Acts, incorporating railway companies, and 
 
 (h) Com. Dig. Mandamus, A. (/) Com. Dig. Parliament, E. 22. 
 
 (c) Ld. Denman, C.J., Reg. y.Emt. Co, {g) Rex v. Mayor of Hastmgs, 1 D. & 
 
 Rail. Co., 10 Ad. & E. 531. K, 148 ; 5 B. & Aid. 692, n. Rex v. 
 
 (t?) Reg. T. Og/rlcmd, L. R., 5 Q. B. 269. Avenng Atte B&iger, ii, 691. Rex t. Wells 
 
 (e) Best, J., Rex y. North Riding, <l:c., {Mayor of), i Dowl. P. C. 562. 
 
 Jmtices, 2 B. & C. 291. Rex v. Kent (h) Reg. v. Mayor, <t-c., of Monmouth, 
 
 JusUces, 14 East, 395. Ress v. Cmnberland L. E., 5 Q, jB. 261. 
 Justice!, 1 M.. & S. 194. 
 
SECT. 1.] TO ItECOKDEES, MAGISTRATES, ETC. 1055 
 
 authorising the construction of a railway, are, in general, merely 
 permissive. They confer extensive powers for the compulsory 
 purchase of land, and the construction of works for the benefit of 
 the public, but it is, in general, discretiohary with the companies 
 whether they will exercise the whole or a portion of these powers, 
 or refrain altogether from using them (i). And when the words of 
 a statute or charter are imperative, and command the thing to be 
 done, it is, nevertheless, a good excuse to show that circumstances 
 have arisen rendering the exercise of the statutory power and com- 
 mand impracticable (_;') ; or, in cases of private Acts of Parliament, 
 not imposing a duty relating to the public interest, that a previous 
 agreement had been made by the person applying for the per- 
 formance of the duty, not to exact its performance Qc). With 
 reference to the inferential repeal of a previous statute by a 
 subsequent one, the principle is, that a general Act is not to be 
 construed to repeal a previous particular Act unless there is some 
 express reference to the previous' legislation on the subject, or the 
 two Acts are necessarily inconsistent (T). 
 
 Mandamus to judges,- m&gistrates, and judicial officers, conimartd- 
 ing them, to hear and adjudicate. — We have seen that, by 11 & 12 
 Vict. c. 44 (ante, p. 719), more simple means (by rule to show 
 cause) than the ordinary remedy by mandamus have been devised 
 for compelling justices of thp peace to exercise the duties of their 
 ofl&ce, where the legality of their proceedings is likely to be called 
 in question, and they refuse to act by reason of doubts entertained 
 by them as to the extent of their authority and jurisdiction ; or 
 make an arbitrary and illegal use of their discretion, &c. (m). 
 The proceeding established by this statute is cumulative upon the 
 ordinary common-law remedy by mandamus, which still goes to 
 courts of quarter session (n), recorders of boroughs, justices of the 
 peace, and judges of inferior courts of record (other than county- 
 court judges), to compel them to fulfil the duties of their several 
 offices, and receive, hear, and adjudicate upon an information, 
 claim, or dispute brought before them, and which they have refused 
 to hear and adjudicate upon, from some erroneous view of the. law, 
 or of the extent of their powers and jurisdiction (o) ; but where they 
 
 (») YorJc and North Mid. Rail. Co. v. (k) Savin v. Hoylahe Rail. Co., L. E., 1 
 
 The Queen, 1 Ell. & Bl. 861 ; 22 Law J., Exch. 9. 
 
 Q. B. 225. Ot. West. RaU. Co. T. The (I) 2%orpcv. ^ofams, L. B., 6 C. P. 125. 
 
 Queen, 1 Ell. & Bl. 874. Brie, J., Reg. t. (m) Reg. t. Boteler, 33 Law J., M. C. 
 
 North Mid. RaU. Co., 1 EU. & Bl. 203. 101. 
 
 Rex T. Birm. Cam. Nam., 2 W. BL 708. (»i) As to the coats of the application, 
 
 See post, pp. 1069 — 70. see Reg. t. Kent Justices, 36 Law J., M. C. 
 
 (j) Reg. Y. Land, and North- West. Rail. 130. 
 
 Co., 16 Q. B. 884. Reg. y. Ambergate, dkc, (o) Reg. v. Richards, ante, p. 718. Reg. 
 
 1 EU. & Bl. 381 ; 22 Law J., Q. B. 191; v. Richmond Recorder,' Ell. Bl. & Ell. 
 
 post, p. 1075. . 253. Beg. v. Newport Oniurd/km'sjZZ Law 
 
 J., M. C. 155. 
 
1056 MANDAMUS [CHAP. XXIV, 
 
 have entered upon the matter and given the parties a hearing, 
 and have decided, the court will not, by mandamus, review their 
 decision, or compel them to rehear the. case on the ground that 
 they have come to a wrong conclusion in point of law (p). That 
 must he done on appeal, where an appeal is given, or on a case 
 stated for the opinion of the court (q) ; for "the Court of Queen's 
 Bench has never, in cases of applications for a mandamus to judges 
 or courts of a judicial character, assumed a power to do more than 
 to direct them to hear and decide ; it has never dictated to them in 
 what manner they are to decide " (r). Where justices or judicial 
 officers have begun to hear a complaint within their jurisdiction, 
 they are bound to hear the whole of the evidence offered, and have 
 no right to stop a complainant and prevent him from bringing his 
 whole cause of complaint before them (s). 
 
 The writ of mandamus formerly lay against a county-court judge 
 to compel him to hear and adjudicate upon a claim, and give judg- 
 ment upon a verdict (<).' But, by the County Court Acts, the 
 remedy by mandamus against a county-court judge, or any officer 
 of the county court, for refusing to do an act relating to the duties 
 of his office, is taken away, and a different remedy, by rule to show 
 cause and order of court, is substituted in its place («).- 
 
 A mandamus will go to the lord of a manor to compel him to 
 hold a court baron, and , to the homage to present conveyances of 
 burgage tenure (v); also to hold a court leet to swear in a constable, 
 or to admit persons entitled to a franchise (x) ; also to a corpora- 
 tion, to permit a court leet and court baron to be held, according 
 to immemorial custom, in the town hall (y) ; also to justices of the 
 peace, to hear and determine a complaint against overseers for not 
 properly accounting (z), to examine and allow overseers' accounts (a), 
 and to swear them to their accounts (b) ; to summon parties for not 
 paying (c), and to issue distress-warrants for levying poor-rates (d). 
 
 {p) Reg. V. Leicester Deputies, 15 Q. B. W. E. 46i. Beg. v. Harwood, 22 Law J., 
 
 674. Reg. v. Goodmeh, 19 Law J., Q. B. Q. B. 127. Churchward v. Coleman, L. 
 
 413. Reg. v. Blanshard, 13 Q. B. 325. K., 2 Q. B. 18. 
 
 Reg. T. Liverpool Recorder, 20 ikw J., M. (») Rex v. Moniacuie (Ld.), 1 W. Bl. 60. 
 
 C. 37. BvUer, Ex parte, 1 Jur. U. S. Rex v. Midhurst, 1 Wils. 283. 
 
 709. Reg. v. Mast Riding Just., 13 Jur. (x) Rex v. Colehroohe, 2 Kenyon, 163. 
 
 447. Rex V. Milverton (Ld. of), 3 Ad. & E. 284. 
 
 (5) Reg. T. West Riding Just., 1 New (y) Rex v. Grantham, 2 W. Bl. 716. 
 
 Sess. Cas. 247. Rex v. Ilchester Bailiffs, iic, 2 B. & C. 
 
 (r) Cockbum, C.J., CooTc, Ex paHe, 29 764 ; 4 D. & R. 324. 
 
 Law J., Q. B. 68. Bird, Ex parte, 28 ib. (z) Rex t. Worcestershire Justices, 3 D. 
 Q. B. 223. . & R. 299. 
 
 (s) Rex V. Cumberh/nd Justices, 4 Ad. (a) Rex v. Cambridge Justices, 8 Dowl. 
 
 & E, 695. P. 0. 89. 
 
 (t) Reg. T. Richards, 20 Law J., Q. B. (5) Rexy. Middlesex Justices,! Wils.125. 
 
 362. Broohe v. Ewers, 1 Str. 113. Mil- (c) Anon., 2 Chitt. 257. 
 
 ner, Exparte, 15 Jur. 1037. (d) St. Luke t. Middlesex Justices, 1 
 
 (it) 19 & 20 Vict. c. 108,' B. 43 ; 21 & Wils. 133. Reg. v. CUek, 11 Jur. 86, n. 
 
 22 Viot. c. 74, s. 4. Furber, Ex parte, 27 Rex v. Middlesex Justices, 2 Kenyon, 163. 
 
 Law J., Exoh. 453. Jardine T. Smith, 8 Rex v. Benn. 6 T. B. 198. 
 
Sect. l.J to ministerial officers. 1057 
 
 The court never grants a mandamus except it indisputably 
 appears that the party to whom it is "directed has, by law, power to 
 do what he is enjoined to do, and will not compel any person to 
 exercise a doubtful jurisdiction (e). 
 
 Mandamus to ministerial officers.' — The writ of mandamus lies 
 also against all ministerial officers, to compel them to execute the 
 duties of their several offices, and discharge the functions delegated 
 to them for the public benefit, although there be a penalty for their 
 neglect (/). It will go to a'gaoler to compel him to give up the 
 body of a deceased prisoner for debt to his executors {g), or to 
 receive a prisoner Qi) ; to the trustees of a public charity, whose 
 duty it is to furnish a churchwarden with the keys of a chest, 
 enjoining them to deliver the keys (?) ; to justices and clerks of the 
 peace of a borough, to permit a ratepayer to inspect and take 
 copies of a rate (/) ; also to a corporation, commanding them to 
 permit a member of the body corporate to inspect the' minute- 
 books, bye-laws, and records of the corporation, for the purpose of 
 determining a matter in controversy between the corporation and 
 the individual member, respecting the rights and privileges of the 
 'latter under the, charter {k). But the court will not by mandamus 
 compel the justices and the clerk of the peace of a county to a,Ilow 
 ratepayers an inspection of the accounts and bills of charges of 
 county officers settled and ordered to be paid at the sessions and 
 deposited by the clerk of the peace amongst the county records, the 
 ratepayers having no right to examine such accounts (Z) ; nor will 
 the court interfere by mandamus with the administration of the 
 funds of charities (m), nor compel trustees of turnpike roads to 
 repair and keep in repair a turnpike road (n) ; nor will a manda- 
 mus lie to the king's officer to compel him to deliver up property 
 which he holds in his hands on behalf of the Crown ; for a man- 
 damus to the officer in such a case would be like a mandamus to 
 the Crown, which the court cannot grant (o). 
 
 The court will by mandamus compel the performance of a 
 public duty by public officers, although the time prescribed by 
 statute for the performance of the duty has .passed {p) ; and if the 
 public officer to whom the performance of the duty belongs has in 
 
 (f) Rex T. Bishop of Ely, 1 W. Bl. 58. {j) Rex v. Leicester Justices, 4 B. & C. 
 
 Rex V. SaUfant, 4 Ad. & B. 361. Reg. v. 891. 
 
 Land, and North-West. RaU. Co., 6 Eail. (h) Burton, In re, 31 Law J., Q. B. 62. 
 
 Cas. 634. Lee, Ex parte. Ell. Bl. & Ell. (I) Rex v. Staff. Justices, 6 Ad. & E. 84. 
 
 ggg (??i) Rugby Charity, Ex parte, 9 D. & 11. 
 
 ( h Com. Dig. Mandamus, 31 B. R. H. 214. , „ , 
 
 201 (n) Reg. v. Oxford, dkc, Roads, 12 Ad. 
 
 (a) Reg. v. Pox, 2 Q. B. 246. & E. 427. 
 
 (h) R. V. CoMU, 34 Law J., M. C. 137. (o) Rex v. Commissioners of Customs, 5 
 
 R. V. Governors of Whitecross St. Prison, Ad. & E. 380. , , „ 
 
 ■I jQg - {p} Reg, Y. Mayor, <ic,, of Monmouth, 
 
 \i) Reg. T. Abrahams, 4 Q. B. 161. ante, p. 1054. 
 
 Y Y Y 
 
1058 MANDAMUS [CHAP. XXIV. 
 
 the meantime quitted his oliice, and been succeeded by another, 
 it is the duty of the successor to obey the writ, and to do the 
 acts, when required, which his predecessor has omitted to per- 
 form {q). 
 
 In certain cases, however, where a public officer, occupying a 
 subordinate position, has received an order from his superiors, or 
 any competent authority, and is liable to an indictment for disobey- 
 ing the order, the court has refused to proceed by mandamus, and 
 has left the parties to the ordinary remedies {r).. Thus, in the 
 ordinary case of disobedience, by surveyors, treasurers, and minis- 
 terial officers, of an order of sessions, the proper remedy is by 
 indictment, or by removal of the order into the Court of Queen's 
 Bench (s), and not by mandamus {t). " The court," observes Lord 
 Kenyon, C. J., " grants a mandamus to justices to make an order 
 when they refuse to do their duty. But it would be descending 
 too low to grant a mandamus to inferior officers to obey that order : 
 we might as well issue a writ to a constable, or other ministerial 
 officer, to compel him to execute a warrant directed to him " (m). 
 So a mandamus wiU not go to a clerk of justices to return a record 
 of all summary convictions pursuant to the 11 & 12 Vict. c. 43, 
 s. 14, although such return ought to be made, and proceedings by 
 rule or indictment might be taken against the justices to enforce 
 it (v). But where a ministerial officer is put forward as the 
 nominal party, and a chartered company or corporation is in the 
 background disputing the liability, and is the party really to be 
 acted upon by the mandamus, the court will direct the writ to 
 issue {vj). 
 
 Mandamus to overseers or clergymen to hury fhe dead hody of a 
 pauper. — It should seem that the individual under whose roof a 
 poor person dies is bound to carry the body decently covered to the 
 place of burial ; he cannot keep it unburied, nor do anything which 
 prevents Christian burial ; he cannot, therefore, cast it out, so as to 
 expose the body, or offend the feelings, or endanger the health, of 
 the living ; and for the same reason he cannot carry it uncovered 
 to the grave. It will probably be found, therefore, that where a 
 pauper dies in any parish-house, poor-house, or union-house, of the 
 parish or union, the overseers of the parish, or the guardians- of the 
 union, may be compelled by mandamus to bury the body; but the 
 court will not grant a mandamus to oVerseers to bury the body of 
 
 (g) Bochester {Mayor, &c., of) v. Reg., Jeyes, 3 Ad. & E. 416. DownUm Over- 
 
 2.7 Law J., Q. B. 436. seers, Ex parte, 8 Ell. & Bl. 856. 
 
 (r) Coleridge, J., Rex v. Paynf^ Ad. («) Rex v. Bristow, 6 T. E. 170. 
 
 * ?• ^3\ „ ,.. (") Saywari, In re, 3 B. & S. 546 ; 32 
 
 (s) 12 & 13 Vict. c. 45, 8. 18. L. J., M. C. 89! 
 
 («) Rex T. BrisUyw, 6 T. K. 168. Rex v. (w) Reg. v. Wood Ditton Survmora, &c., 
 
 ISLaw J., M.C. 218. 
 
SECT. 1.] WHERE ANOTHER REMEDY EXISTS. 1059 
 
 a pauper wIlo haa died in a private house in the parish, or in a 
 hospital not belonging to the parish authorities (x). 
 
 A mandamus to a rector to bury a corpse will be granted if it 
 be shown that the rector has refused altogether to bury it ; but 
 there is no common-law right of burial in any particular part of the 
 churchyard, and the court will not, by mandamus, enforce private 
 rights of burial in any particular vault (y), or in any unusual or 
 extraordinary manner (z). 
 
 Of the granting of the writ where there is another remedy. — ■ 
 It is no answer to an application for a mandamus to enforce 
 the performance of a public duty, to show that the party claim- 
 ing the writ has another remedy, unless it is also shown that 
 the other remedy would be more suitable and effectual than 
 the proceeding by mandamus (a). Where there is another 
 remedy equally convenient, beneficial, and effectual, a manda- 
 mus wiU not be granted. "This is not a rule of law, but a 
 rule regulating the discretion of the court in granting writs of 
 mandamus " (b). Thus, where the duty sought to be enforced is 
 the payment of a sum of money, and an action of debt is maintain- 
 able for the money, ^and affords as convenient and effectual a 
 remedy as a writ of mandamus, the court will leave the party to 
 the ordinary remedy by action, and will refuse a mandamus (c). So 
 it is no answer to an application for a mandamus to show that the 
 defendant may be proceeded against by indictment {d), unless it is 
 also shown that an indictment would be a more effectual and suit- 
 able course of proceeding. And the writ is never granted as a 
 remedy for a mere private wrong, where there is a clear cause of 
 action, and compensation in damages would be an effectual or 
 appropriate remedy (e). 
 
 A party applying for a mandamus must make out a legal right 
 and a legal obligation (/), and if he show such legal right it is 
 sufficient, although there be also a remedy in equity, for when the 
 court refuses to grant a mandamus because there is another specific 
 remedy, they mean only a specific remedy at law {g). A legal 
 obligation, which is the proper foundation for a -mandamus, can 
 
 (x) Beg. V. Stewm-t, 12 Ad. & E. 773. B. & Aid. 650. Seg. v. Brist. Dock Co., 2 
 
 ly) Blackmore, Ex 'parte, 1 B. & Ad. Q. B. 70. Reg. v. Yict. Parle Co., 1 Q. B. 
 
 122. 291. 
 
 Iz) Sex V. OoUridge, 2 B. & Aid. 809. ,(e) Com. Dig. Mandamus, A. Sex j. 
 
 (a) Clwi-Jce T. Bishop of Sarum, 2 Str. aear, 4 B. & C. 901. Seg. v. Ponsford, 
 
 1082. 
 
 1 D. & L.' 116 ; 12 Law J., Q. B. 313. 
 
 (b) Hill, J., Barlow, In re, 30 Law J., (/) Seg. v. BcOby, &c., Turnpike Trust, 
 
 Q B 271 22 Law J., Q. B. 164. Seg. t. Abrahams, 
 
 Ic) Sea. V. SuUaaid Selby SaU. Co., 6 4 Q. B. 161. Seg. v. OHon Trustees, 14 
 
 Q. B. 70 ; 13 Law J^Q. B. 257. Seg. v. Q. B. 146. Bassett, Expa/rte, 7 B11.& Bl. 
 
 Brist. and Exeter SaU. Co., 3 Bail. Cas. 280 ' c ^ jv,^ 
 
 y^y_ - (g) Buller, J., Sex v. Stafford {Marquis 
 
 (d) Sex V. Smm and Wye SaU. Co., 2 of), 3 T. K. 651. 
 
 T Y Y 2 
 
1060 MANDAMUS [CHAP. XXIV. 
 
 only arise from common law, from statute, or from contract. An 
 of&cer in tlie Queen's army, therefore, has no claim for a manda- 
 mus against the Paymaster of the Forces, to compel the payment 
 of pay improperly withheld from him, as the obligation, though 
 binding in eq^uity and conscience, wants the vinculum juris, and is 
 not a legal obligation (h). But where public officers had actually 
 received a specific sum of money for the use of the prosecutor, and 
 wrote and informed him that he might receive it on application at 
 their office, and then refused to pay it except on conditions which 
 they had no right to impose, the court granted a mandamus, enjoin- 
 ing them to pay the money (i). But the mere receipt of a lump 
 sum of money by public officers, to be distributed or administered 
 by them, does not render them liable to a mandamus for not pay- 
 ing the money Qc). 
 
 AVhere an annuity has been granted by Act of Parliament, and 
 charged upon the consolidated fund, and the annuity is in arrear, 
 and payment can only be obtained by warrant of the Lords of the 
 Treasury, and the duty of granting the warrant is imposed upon 
 them by statute, and they refuse to fulfil this duty, and to do what 
 is necessary to be done to enable the prosecutor to obtain payment, 
 there is a case for a mandamus (Z) ; but if the prosecutor fails in 
 establishing a clear, statutoiy duty, the court will decline to inter- • 
 fere (m). And as against the servants of the Crown, as such, and 
 merely to enforce the satisfaction of claims upon the Crown, it is 
 an established rule that a mandamus will not lie {n). 
 
 Mandamus to compel the surrender of public doeuntenis. — The 
 eourt has refused to grant a mandamus to compel a private indivi- 
 dual to give up documents of a public nature, where the party 
 claiming the possession of them had a remedy by action for the 
 conversion or detention of the documents (o); but the remedy by 
 action is not an effectual remedy for the recovery of the docu- 
 ments themselves; and wherever a private individual, who has 
 quitted office, keeps back public documents of which he obtained 
 custody whilst acting in an official character or capacity, and by 
 colour of his office, the court will by mandamus compel the pro- 
 duction of the documents, and if private and public documents 
 have been so mixed up together that they cannot be severed, the 
 
 (h) Napkr, Ex pmie, 18 Q. B. 695 ; 21 sioners of Treasury, supra. 
 Law J , Q. B. 332. ,,. , ^^ ^ . ^ ^ (m) Rex v. Treasury [Lords of), i Ad. 
 
 ^(■'')^'^^'>-''"^^y(^ordsof),iAA.& & E. 981. And see Ji. v. Seceiver of 
 
 Ji. 286. iJut see Meg. v. Commvmiomrs Metrop. Police, 33 Law J Q B 52 
 
 °^fl^l' ^- H '' ^ ^-.^i^- .. „ ("' ^"^^ (^"^"^ '^«). I^ «. 6 Dowl. P. 
 
 (A) WalmsUy, ExpwrU, 1 B. & S. 81. C. 792. Hand, In re, 4 Ad. & E 984 
 
 g.) S^. V. Trmsury (Lordf of ) 16 Q. B. SmUh, In re, ib. 976. Jiichetts, Ex 'parte. 
 
 361. Jieg. v. Ambergate, die.. Rail. Co., ib. 999. ' r > 
 
 17 Q. B. 967. But see Reg. v. Commis- (o) Reg. v. HopUns, 1 Q. B. 169. 
 
SECT. l.J TO KESTOKE TO A FEEEIIOLD OFFICE. 1061 
 
 whole must be produced (p). Thus, a mandamus will he granted 
 to a person who has previously served the of&ce of town-clerk in a 
 borough, directing him to deliver up records and books connected 
 with the administration of public justice in the borough, which 
 came into his custody as town-clerk, and to hand them over to his 
 successor in the office (q) ) also to a retired overseer of the poor, to 
 compel him to deliver over the parish books to the new overseer (r) ; 
 also to a dismissed clerk of a chartered company, requiring him, to 
 deliver up to the company all books, papers, &c., which he had in 
 his custody by virtue of being their clerk (s). But where a vestry 
 clerk moved for a mandamus to certain churchwardens to give up 
 to him the custody of the vestry-book, which had been taken from 
 him at a vestry meeting, the court refused the application, as the 
 vestry clerk had no certain tenure of of&ce, and was the mere 
 servant of the vestry, and could be dismissed, and the book taken 
 away from him at their will (f). 
 
 A Tnandamus to restore a piMic officer to a freehold office from 
 which he has been wrongfully dismissed, may be obtained on due 
 proof of the wrongful dismissal (m). A public officer appointed for 
 life, or during good behaviour, cannot lawfully be removed from his 
 ofi&ce for taisconduct without being called upon to make, and being 
 afforded an opportunity of making, his defence, for " NuUus liber 
 homo disseisietur de hbero tenemento suo nisi per legale judicium 
 parium suorum vel per legem terras" {x). If he has committed 
 felony, or a misdemeanour, he must be tried and convicted by 
 a jury before the offence can work a forfeiture of his office, and if 
 he has been guilty of misconduct in the discharge of , his official 
 duties, he must have an opportunity given him of answering the 
 • charge,- or have been heard in his own defence before he can law- 
 fully be removed. Where a vicar removed a parish clerk for acts 
 of misconduct alleged to have been committed in the vicar's own 
 view, the court granted a mandamus to compel the vicar to restore 
 the clerk to his office. For the vicar it was contended, that as he 
 acted on his own view of the prosecutor's misconduct, any kind of 
 process for enabling him to disprove or explain it must be super- 
 fluous, and that the law invested the vicar with the functions of 
 accuser, witness, and judge, in respect of indecent conduct publicly 
 exhibited in his presence; but the court held that sentence of 
 removal from a freehold office ought to be preceded by some mode 
 of inquiry, in which the accused* should have an opportunity of 
 
 (p) Rex V. Payn, 6 Ad. & E. 399. («) Hex v. WUdman, 2 Str. 879, 
 
 (a) Nottingham Town Clerk's case, I (f) Anion., 2 Chitt. 255. Ban t. Oroy- 
 
 Sid 31. Bex r. Ingram. 1 W. Bl. 49. dm, 5 T. K. 714. 
 
 (r) Bex V. Clapham, 1 Wils. 305. Beg. {u) Bex v. Morpeth Ballivos, 1 Str. 58. 
 
 V Fox W W. & H. 4. (a;) Magna Chakta, c. 29. 
 
1062 MANDAMUS [CHAP. XXIV. 
 
 being heard/ and of explaining his behaviour. "The important 
 principle that every man ought to be heard before he is condemned, 
 so strenuously asserted by Lord Kenyon {y), is not excluded," 
 observe the court, "because the charge rests on the minister's 
 personal observation, inasmuch as that is not inconsistent with the 
 disproof of criminal motives and intentions, with the mitigation to 
 which other facts might possibly entitle the accused, or with con- 
 donation of the offence. This principle appears to us valuable to 
 thB judge, whom it tends to secure against yielding too hastily to 
 his own first impressions, while we think it indispensable, for the 
 sake of the party charged, in all cases, to the due execution of 
 every judicial power " (»). 
 
 Even although the of&cer, having been duly elected, has, pro- 
 cured himself to be admitted to the office by means of fraudulent 
 misrepresentation and deceit, he must be called upon to come in 
 and defend himself before he can lawfully be removed {a). Where, 
 however, the election itself was void ah initio, on the ground of 
 fraud, so that the party has never become a member, his admission 
 may, it seems, be cancelled without a hearing (b). 
 
 There seems to be a great deal of difference between a man- 
 damus to admit, and a mandamus to restore, to a freehold office. 
 The former is granted merely to enable the partyto try his right, 
 without which he would be left without any legal remedy. But 
 the court have always looked much more strictly to the right of 
 the party applying for a mandamus to be restored. In these cases 
 he must show a fyrimci, facie title ; for if he has been before 
 regularly admitted, he may try his right by bringing an action for 
 money had and received for the profits. Therefore, in order to 
 entitle himself to this extraordinary remedy, he must lay such 
 facts before the court as will warrant them in presuming that the 
 right is in him (c). 
 
 How a freehold office may he forfeited and vacated. — If a man 
 grant an office to another for term of his life, the freehold estate 
 which the grantee hath in the office is upon condition in law that 
 he shall well and faithfully do that which to such office belongeth 
 to do, or otherwise it shall be lawful to the grantor and his heirs to 
 oust him, and grant the office to another (d). There are, says Lord 
 
 (y) In Rex v. Gashm, 8 T. E. 209. Oen. fJoimcU Med., &c., 30 Law J., Q. B. 
 
 And see per Ld. EUenborough, C.J., in 201. 
 Buchanan y. Bvcker, 1 Campb. 65. (c) Rex v. Jotham, 3 T. R. 575. 
 
 (z) Reg. V. Smith, 5 Q. B. 623 ; 14 Law {d) Litt. sect. 378. The grantee may 
 
 J., (J. B. 166. Doe t. Gwrtham, 1 Bing. be ousted "s'il non attend sur son office, 
 
 3o7. Coaper v. Wandsworth Bowrdj &c., s'il fait contrariant chose k son office, ou 
 
 32 Law J., C.P 186. misfeseance de son office," 11 Edw. 4, 
 
 , ol"^ o^?l 'n^-'^'^l'S^^'^J'^''' '^•' "^^ 2- fol- 1- -^ to the duties annexed to the 
 186 ; 32 tb. 337 ; 10 IL L. C. 404. freehold office of clerk of the peace, see 
 
 (6) Meg. V. Sadkrs Co., utsup. Reg, v, Ifdrdin^ v, Pqlloch, 6 Bing, 50, 
 
SECT. 1.] TO RESTOEE TO A FREEHOLD OFFICE. 1063 
 
 Coke, three causes of forfeiture, or seizure of offices : 1, by abuser ; 
 2, non-user ; 3, refusal (e). If the officer is removed by reason of 
 the forfeiture of his freehold office, through breach of the implied 
 trust upon which it was granted, that will be a removal " per legem 
 terras." If he is not so removed, he ought to be convicted, " per 
 judicium parium suorum," of some public crime before he can 
 lawfully be dispossessed of his freehold (/). And the crime must 
 be of such a nature as to render the officer publicly infamous, and 
 unfit to hold any public office ; for if he has been convicted of an 
 assault, or any other offence which does not carry such infamy 
 with it, the conviction will be no ground of disfranchisement (g). 
 
 " There are," observes Lord Mansfield, " three sorts of offences 
 for which an officer or corporator may be discharged : first, such as 
 have no immediate relation to his office; but are in themselves of 
 so infamous a nature as to render the offender unfit to execute any 
 public franchise ; secondly, such as are only against his oath and 
 the duty of his office as a corporator, and amount to breaches 
 of the tacit condition annexed to his franchise or office ; thirdly, 
 such as are of a mixed nature, as being an offence not only against 
 the duty of his office, but also a matter indictable a.t common law. 
 For the first sort of offences there must be an indictment and 
 conviction before removal; but in respect of the second class of 
 offences the party must be tried by the corporation " (A). And 
 there cannot, it seems, be any cause to disfranchise a member of a 
 corporation, unless it be for a thing done which tends to the 
 destruction of the body corporate, or to the destruction of the 
 liberties and privileges thereof. Any mere personal offence of one 
 member thereof affords no cause for disfranchisement (^). Mere 
 misapplication of the money of the corporation is not a good ground 
 for the disfranchisement of a corporator ; the corporation must have 
 an action for the money (j?'). 
 
 Offices held at will, or during^ the good pleasure, or at the discre- 
 ■ tion, of the parties appointing to them, may be "taken away without 
 any reason assigned, or any summons or hearing of the party 
 removed (k). This is the case with the office of a vestry-clerk 
 (ante, p. 1061), clerk to justices (I), clerks and treasurers of 
 guardians of the poor (m), and the minister of a dissenting congre- 
 
 (e) Earl of Shrewsbury's case, 9 Kep. Jiex v. Mayor of Liverpool, 2 Burr. 733. 
 46b. See WUdes v. RusseU. L. K., 1 0. Seg. v. Barnes, 6 Mod. 182 ; 2 Salk. 6?0. 
 p «22 (*) ilarle's case, Garth. 176. 
 
 (f) Saga's case, 11 Co. 99. Harcourt (j) Rex v. Ckalke, 1 Ld. Eaym.-225. 
 V Pox 1 Show. 431, 506; 4 Mod. 169. Rex t. WUton (Mayor, &c.), 5 Mod. 257. 
 
 ' (q) 'Bex V. Richardson, 1 Rurr. 538 ; {h} Rex t. Stratford {Mayor, i-c), 1 
 
 Bailer's N. P. 7tli ed. 206. Reg. v. Olerh Lev. 291. 
 
 of the Peace of Omiberlcmd, 11 Mod. 81 ; 1 {1} Sandys, Ex parte, 4 B. & Ad. 863. 
 
 Koll. Abr., OfTlCB, 155. - Cruise's Digest, (m) Rex v. St. Nicholas, <fcc„ 4 M. & S, 
 
 Franchise. 324. 
 {h) Rex V. Richardson, I Burr. 537, 
 
1064 MANDAMUS [CIIAP. XXIV. 
 
 gation, who is elected by the majority of the members of the con- 
 gregation, and who may be removed by stich majority, and be 
 turned out of his house, premises^ and chapel, if they are dissatisfied 
 with his doctrines and religious teaching («.), or restrained by 
 injunction from further officiating (o). 
 
 Where the charter by which a charity was founded conferred 
 on the governots full power to appoint the schoolmaster, and to 
 remove him and appoint another according to their sound discretion, 
 and a schoolmaster was appointed and afterwards dismissed, it was 
 held that the court could not interfere with the discretion of the 
 governors, or review their reasons for the dismissal (p). 
 
 Visitatorial power excluding - the proceeding hy mandamus. — 
 Where corporate offices are held in private or eleemosynary corpo- 
 rations, on the terms that, if any dispute should arise respecting the 
 right to the office, or the validity of a discharge, or a motion from it, 
 such dispute should be settled or determined by a visitor or judge 
 whom the founder has nominated, the court will not interfere by 
 mandamus (q). But one branch of a corporation has no visitatorial 
 power over another. The visitatorial power emanates from the 
 founder. In royal - foundations of a private or eleemosynary 
 character, if no special visitor has been appointed, the lyng exercises 
 the power by his chancellor. In corporations established for the 
 government of cities and towns, the king may be said to exercise 
 the power by mandamus through the Court of Queen's Bench (r). 
 
 Mandamus to restore the name of a medical practitioner to the 
 Medical Register. — By M & 22 Vict. <c. 90, s. 29, it is enacted, that 
 if any medical practitioner shall be convicted of any felony or mis- 
 demeanour, or shall, after due inquiry, be judged by the general 
 council of medical education and registration (s) to have been guilty 
 of infamous conduct in any professional respect, the general council 
 may, if they see fit, direct the registrar to erase the name of such 
 medical practitioner from the register. The decisions of the council 
 under this section, made after due inquiry, are final, and cannot be 
 reviewed by the superior court. Where, therefore, the medical 
 council, after communicating to a medical practitioner certain 
 charges made against him of infamous conduct in his profession, 
 and having heard and considered his answers and explanations, 
 directed the registrar to remove his name from the medical register, 
 the court refused a mandamus to restore him (t). 
 
 ^1!) ^"^ "-./T^f' ^° ^ * °- ^^*- ^"^ 15 Q. B. 513. Reg. t. Dean and Cliap. of 
 
 T. McKaeg, ih. 721. Sochester, 17 Q. B. 1. 
 
 (o) GooperY.&ordon, L. B., 8 Eq. Ca. (r) Bex v. London (Mayor of), 4 M. & 
 
 .449 ; dB li; J., Uh. 489. E. g2. > « .< /. 
 
 a j^P^^^S-J-Mington School Governors, \s) See 26 & 26 Vict. c. 91: 31 & 32 
 ,\ D ' n Viet. 0.29. 
 
 (2) Meg. T. Dean and Chap, of Chester, {(} LaMert,E3>parte,SZha,\r J., Q. B. 69, 
 
SSCT. l.J TO ENFORCE APPOINTMENT TO OFFICE. 1065 
 
 Mandamus to test the validity of an election. — The mere rejection 
 of votes at au election of corporate officers furnishes no ground for 
 interference by mandamus, where it does not appear that the elec- ' 
 tion has been thereby vitiated. It must be shown that the rejection 
 of the votes led to the declaration of a candidate as duly elected 
 who would have failed if the votes had been received (u). The 
 validity of an election by parishioners of churchwardens may, under 
 certain circumstances, be tried by mandamus {x). And where it is 
 the custom for the parishioners to elect one churchwarden and for 
 the rector to nominate the other, the validity of the rector's nomi- 
 nation may be tested by mandamus (jj). 
 
 ' Mandamus to elect corporate- and public officers. — A mandamus 
 lies also to the inhabitants of a parish, directing them to meet 
 together and elect churchwardens (zj, but not to churchwardens, to 
 call a vestry to elect a sexton, where the office is fuU by the 
 appointment of the rector, and there is a remedy by refusing the 
 sexton his fees, or bringing an action if they are taken (a) ; or to 
 elect an organist (6). 
 
 Mandamus to enforce an ajjpointment to a public or corporate 
 office. — It is the duty, also,, of the Court of Queen's Bench to see 
 that the functions appertaining to public offices are discharged by 
 persons duly elected to the office. When, therefore, a public office 
 is vacant, and a party has been elected to serve the office, the court 
 wiU by mandamus enforce the right to the office ; but where the 
 office has been created by charter, or by statute, and is not vacant, 
 but has been usurped by an intruder, and the right to the office is 
 disputed between two rival claimants, the right must in general be 
 tried by g^io warranto, and not by mandamus (c). If, however, 
 there is only a colourable election, it is void, and a mandamus to 
 hold an election will be granted {d). And there are occasions 
 where a giw warranto will lie, and yet the remedy by mandamus 
 may be deemed a more appropriate remedy (e). 
 
 Wherever a person has been properly appointed to a corporate 
 office, having a salary annexed to it, or has been duly elected to 
 serve the office, and the corporation refuses to institute him in the 
 office, a mandamus lies to compel them to do so (/) ; but the court 
 
 lu-S Mawbv Ex parte, 3 EU. & Bl. 718. Q. B. 423. DarUy v. The Queen, 12 CI. 
 
 (I) sTvBirmir^ham (Sector of), 7 & Kn. 520. Hill y. Seg., 8 Moore. P. 0. 
 
 AA'/trVakl C. 139. Sex y. Winchester {Mayor of ), 7 
 
 {y)^rlL: In re, 39 Law J., Q. B. Ad & E. 222. Meg v. Derby ib. 419 
 „yY ' (d) Sex Y. Cambridge, 4 Burr. 2010. 
 
 (i\ Sexv Wix 2B.& Ad. 197. Seg. v. Oxford {Mayor of), 6 Ad. & E. 
 
 (a) Sexv Stok Damerel 5 Ad. & K 353.- Seg. v. Leeds {Mayor of), 11 Ad. & 
 
 *^M Sea V St. Stephens, &e., 14 Law J., (e) Lawrence, J., Bex v. Bedford Level, 
 
 O V 34 ' ® ^^^> 
 
 (c) Sex T. Colchester {Mayor of), 2 T. E. ^ (/)/«»= J. Oambnd&e Unwerdty, 1 W. 
 259 Seg V St. Martins, &c., 20 Law J., Bl. 551. Bex v. Wmdham, 1 Cowp. 377. 
 
1066 MANDA-MUS [CHAP. XXIV. 
 
 will not interfere where it will have to unravel the rights of voters 
 who are alleged to have been themselves unduly elected^ and to 
 have had no right to.vote {g). 
 
 The writ of mandamus lies also against a rector or a parson, to 
 compel him to receive and swear in a person who has been duly 
 appointed to the office of churchwarden, sexton, parish-clerk, &c. (A) ; 
 to a dean and chapter, to admit a prebendary to his stall and 
 voice (i)-; to the lord of a manor, to admit a copyholder to a 
 copyhold estate Qc), or to permit him to inspect the court-rolls of 
 the manor Q) ; to the trustees of a meeting-house, to compel 
 them to admit to the pulpit -thereof a dissenting minister duly 
 elected (m). But a mandamus does not lie to compel the admission 
 of a person to any mere private appointment, situation, or employ- 
 ment («), such as that of clerk or secretary to a joint-stock com- 
 pany (o), vestry-clerk or toll-gate keeper {p), nor to restore to an 
 office a person who is admitted to have been rightly removed {q), 
 or who is removable at will (r). 
 
 The writ of mandamus will not lie to compel the institution of a 
 clergyman to a presentative benefice, as the appropriate remedy by 
 quare impedit is open to those who present him, and he has himself 
 no legal right whatever (s). 
 
 Mandamus to chartered companies and corporations. — The writ 
 of mandamus. lies also agaiast all chartered companies and corpora- 
 tions, to compel them to conform to the provisions of their charter or 
 act of incorporation, and to discharge the functions vested in them. 
 Wherever a company, incorporated by royal charter or by Act of 
 Parliament, has imposed upon it the duty of keeping a register, and 
 inserting therein the names of the shareholders, the court will by 
 mandamus .compel the performance of the duty (t). The writ lies 
 also against the directors of a chartered company, enjoining them 
 to admit, or to swear in as a director of the company, a person who 
 has been duly elected to the office (m) ; or to admit the prosecutor 
 of the writ a member of the company (tc). It is available, also, 
 
 {if)-Reg. Y. DolgeUey Guardians, tfcc, 8 (j) Rex y. Mayor, &c., of Axbridgfi, 2 
 
 Ad. & E. 564. Cowp. 523. 
 
 (h) Barlow, In re, 30 Law J., Q. B. 271 ; (r) Le Roy v. Campion, 1 Sid. 14 
 
 March, 101. (s) Reg. y. Orton {Trustees of), 14 Q. B. 
 
 (i) Rex r. Dean, diC; of Norwich:, 1 Str, 146. 
 159. ClarHee r. Bishop of Sa/rum, 2 ib. (t) Norris v. Trish Land Co., 8 EU. & 
 
 1082. Bl. 625. Swan v. North Brit. Austral. 
 
 (h) Rex V. Hendon (Lord of the Manor, Co., 31 Law J., Exch. 425. 
 <t-c.), 2 T. E. 484. See Beg. v. Garland, (y) Anon., 2 Str. 696. 
 
 L. K., 5 Q. B. 269. (x) Dacosta v. The Russia Co., 2 Str. 
 
 (I) Rex v. Tower, 4 M. & S. 162. 783. Rex v. March, 2 Burr. 1000. Reg. 
 
 (m) Rex V. Barker, 3 Burr. 1265. Rex v. Sailers' Co., Bail. Court. Cas. 183. As 
 
 Jotham, 3 T. R 577. to the replacement of stock sold out and 
 
 (») Jle's ease, 1 Ventr. 143. transferred on the authority of a fprged 
 
 (o) White's case, 6 Mod. 18. signature, see Mid. Rail. Co, v. Taylor, 31 
 
 (p) Rex. V. Croydon Churchwardens, itc,. Law J. Ch, 336. 
 T, B, 713, 
 
SECT. 1.] TO ENFOKCEf STATUTORY DUTIES. 1067 
 
 against the steward of a corporation, for the purpose of compelling 
 him to produce the public books at corporate meetings (y) ; also 
 against the master of a hospital incorporated for charitable pur- 
 poses, for the purpose of compelling him to put the common seal of 
 the corporation to an instrument of presentation («); against the 
 warden of a college, to compel him to affix the common seal of the 
 college to an answer of the sub-warden, bursars, dean, and principal 
 officers of the college, to a bill in Chancery (a). 
 
 The court will by mandamus entertain the question whether a 
 corporation, not having affixed its seal, is bound to do so ; but not 
 the question whether, when they have affixed it, they were right in 
 so doing. The writ is granted when that has not been done which 
 a statute orders to be done, but not for the purpose of undoing what 
 has been done (b). 
 
 The writ is available, also, for the purpose of enforcing per- 
 formance of the duties imposed by. charter, custom, or contract, on 
 the body corporate in favour of particular members thereof. Where 
 there is a dispute and matter of controversy between the corpora- 
 tion on the one hand, and one of its members on the other, respect- 
 ing the corporate rights and p)rivileges of the latter, a mandamus 
 may be obtained at his instance against the corporation, command- 
 ing them to allow him to inspect the corporate records, by-laws, 
 minute-books, and other documents relating to the matter in con- 
 troversy, to see whether he can make out a case in his favour, and 
 initiate proceedings against the corporation with a prospect of 
 success (c). But the court will not grant a mandamus for a general 
 inspection of all records, muniments, &c., but only of such as relate 
 to the particular matter in controversy ; for the members of a cor- 
 poration have no right, on speculative grounds, to call for an exami- 
 nation of the'books and muniments, to see if they can fish out of 
 them some complaint or charge against the corporate body. It is 
 necessary that there should be some particular matter in dispute 
 between the members, or between the corporation and individuals in 
 it, in which the applicant is interested, and in respect of which the 
 examination becomes necessary {d). 
 
 The writ "^oes also to a corporation or chartered company, to 
 compel it to fulfil the duties it has contracted towards strangers, 
 where there is no other suitable or effectual remedy. A judgment 
 creditor therefore, of a trading corporation may obtain a mandamus 
 enjoining the corporation to give him inspection of the register of 
 
 M Borough of Calm's case, 2 Str. 948. Law J., Q. B. 296. 
 
 (z{ Bea V Kendal, 1 Q. B. 366. But (c) Bwrton, In re, 31 Law J., Q. B. 62. 
 
 Bee W V OrUm Trustees, U Q. B. 146. (d) B^x r. Merchant Taylors' Co., 2 B. 
 
 M Rex, V Wiridham,, 1 Oowp. 377. & Ad. 1 15. iJea; v. ffostmn of Newcastle, 
 
 Jj) N^h, S^ parte, 15 Q. B. 95 ; 19 2 Str. 1223. 
 
1068 MANDAMUS [CHAP. XXIV. 
 
 sharehoHerSj if he has no other or effectual means of ohtaining such 
 inspection (e). 
 
 There is no practical distinction in this respect between 
 companies existing by statute and co;iipanies created by charter. 
 A mandamus, therefore, lies against a company incorporated by 
 statute, commanding them by the hand of their secretary to enter 
 on their books, or to register, the probate of the will of a 
 deceased shareholder (/) ; also transfers, or memorials of transfers, 
 of shares (g). 
 
 But if the prosecutor of the writ of mandamus is not proceed- 
 ing loitd fde for the purpose of enforcing his rights as a shareholder, 
 and has no interest himself as one of the public in the performance 
 of the thing which he seeks to have done, he is not entitled to the 
 writ {h). Nor will the court grant the writ at the instance of one 
 of several partners in a trading corporation, who seeks merely to 
 compel the directors to produce their accounts and divide profits, 
 the Court of Chancery being the proper tribunal for that 
 purpose [i). 
 
 Mandamus to make calls. — Where a public board or corporate 
 body is clothed with certain defined statutory powers, and is 
 authorised to enter into contracts, and has the power of creating, 
 by calls on shareholdersj a future corporate j^roperty, from time 
 to time, out of the priyate assets of its individual members, and 
 contracts are made with the corporation on the faith that an honest 
 exercise will be made of these powers, and it is clearly established 
 that the corporation is evading the payment of its just debts, and 
 the due satisfaction of a judgment recovered against them, on the 
 ground that they have no corporate assets in hand wherewith to 
 pay, the court will, by mandamus, compel them to exercise the 
 powers vested in them for raising funds, and answer the demands 
 of their creditors (/). But where an action has been brought 
 against a corporation for a debt claimed to be due, and judgment 
 has been recovered, and the plaintiff has the ordinary legal remedy 
 of an execution, the court will not issue a mandamus merely 
 because the execution may produce no fruits (/<;). 
 
 Mandamus to local hoards, commissioners, trustees, and public 
 officers to levy rates and satisfy and discharge a judgment-debt, or a 
 
 (e) Beg. v. Derbyshire, &c., Rail. Co., 3 (li) Beg. v. Liverpool, Manchester, tbc.. 
 
 Ell. & Bi. 784. Sail. Co., 21 Law J., Q. B. 284. Briggs, 
 
 (/) Bex y. Worcester Canal Co , 1 M. Ex pwrte, 28 Law J., Q. B. 272. 
 
 & I'y- 529. (i) Bex v. Bank of England, 2 B. & Aid. 
 
 (g) Beg. v. Lond. and Colera/ine Bail. 622. 
 
 Co., 13 Q. B. 998. Beg. v. Wing, 17 ib. (j) Bex v. St. Cath. Dock Co., 4 B. & Ad. 
 
 64.5. Beg. v. Qen. Cem. Co., 6 Ell. & Bl. 360. 
 
 415. Norris v.Ir. Land. Co., 8 Ell. & BJ. (k) Beg. v. Victoria Park Co., 1 Q. B. 
 
 512. Beg. v. Mid. &c., Bail. Co., 15 Ir. 292. 
 C. L. Eep. 525. 
 
SECT. l.J TO LEVY BATES, OR MAKE CALLS. 1069 
 
 pecuniary obligation. — Whenever judgment has been recovered in 
 an action againat the clerk of a local board, or of commissioners or 
 trustees, in respect of something done by such commissioners or 
 trustees in the execution of statutory powers, exempting tliem from 
 personal liability, the judgment-creditor, when he fails to obtain 
 satisfaction of his judgment-debt from the corporate estate and 
 effects of the board, is, in general, entitled to a mandamus to 
 compel the board or other public body to levy a rate, and discharge 
 the judgment-debt. Wherever public officers have borrowed 
 money upon the security of rates they are authorised to impose, 
 and have not themselves contracted any personal liability to pay, 
 a mandamus will go to compel them to make a rate and repay the 
 money (t). If an Act of Parliament authorises parish officers, 
 commissioners of public works, -or boards of health, to enter into 
 contracts for public works, to emj)loy subordinate salaried officers, 
 and to charge the costs and expenses they incur upon rates they 
 are authorised to impose, and contracts are made by them, and 
 officers appointed, and expenses incurred, and there is no per- 
 sonal liability to pay, and the ordinary remedy by way of action 
 is not available, the court will, by mandamus, compel them to 
 make a rate, and provide themselves with funds, and pay such 
 expenses (m). 
 
 Under s. 89 of the Local Board of Health Act, 11 & 12 Vict, 
 c. 63, a local board of health may be compelled by mandamus to 
 make a rate for the purpose of satisfying a judgment within six 
 months after the judgment has been obtained against them (n). 
 And the remedy is not, generally speaking, available after the six 
 months have expired (o). But a rate may be ordered in aid of 
 a judgment within six months after the judgment is obtained, 
 although the action on which the judgment was obtained was 
 commenced more than six months after the claim accrued, if the 
 delay is excused and shown not to have been undue (^p). 
 
 Mandamus to railway companies, corporate bodies, and local 
 boards to make compensation for lands taken, or injuries inflicted 
 upon private persons. — Whenever any public body, executing 
 public works under statutory powers, is^ required by Act of Parlia- 
 ment to make compensation to all persons who may sustain injury 
 
 (l) Sea V Brancaster Churchwardens, (o) Burland v. Kingston-upon Hull 
 
 7 \d & E 458. ^<"^ Board, 32 Law J., Q. B. 17. In 
 
 ''im) Sea' v ffurstbowrne Tarrant, &c., other cases, the plaintiff is not concluded 
 
 27 liaw.J M. C. 214 J Ell. Bl. & Ell. by delay: W>-d t. Xownics, 17 C. B. 940. 
 
 246 Rm' V Norfolk Commissioners of Reg. t. Churchwa/rdens, ikc, 27 Law J., 
 
 Sewers 20 Law J.,.Q. B. 121. Bogg v. M. C. 215. See Bush v. Martin, 2 H. & 
 
 bZI: 10 0. B. 542; 20 Law J.. C P. C. 311 -.n^post p. 1071. 
 
 qq ' (p) Worthtngton v. Mutton, L. K., 1 Q. 
 
 (n) Red V Rotherham. 8 Ell. & BL B. 63. See Ringland v. Lowndes, 33 Law 
 
 906 ■ 27 Law J., Q. B. 156. J-. C. V. 25. 
 
1070 MANDAMUS, [CHAP. XXIY. 
 
 from the exercise of the powers intrusted to it, and machinery is 
 provided for ascertaining and determining the amount by arbitration, 
 and the board refuses to make compensation, or denies its liability, 
 the court will, by mandamus, compel it to make compensation, and 
 put the necessary machinery in motion for ascertaining and settling 
 the amount {q) ; and it is no bar to the prosecutor's right to a 
 mandamus that he has not claimed a specific sum, or taken steps 
 to have the amount ascertained and settled pursuant to the Act {r). 
 So a mandamus will lie to compel a railway company to restore a 
 highway which they have diverted without statutable authority 
 for so doing (s). 
 
 A mandamus will go also against railway companies who have 
 given notice to a landowner under the compulsory powers intrusted 
 to them that they require to purchase his land, and are willing to 
 treat, &c., to' compel them to summon a jury and take the neces- 
 sary steps for settling 'the amount of purchase-nioney and compen- 
 sation (t). - But commissioners acting on behalf of the public, and 
 giving notice that lands are wanted for public purposes, may 
 revoke the notice before it has been acted upon, and cannot be 
 compelled by mandamus to take and pay for the land (%). 
 
 A mandamus will go to an arbitrator, commanding him to give 
 compensation in respect of lands being injuriously affected by the 
 formation of a railway, or the construction of public works, executed 
 under statutory authority (x) ; and if, after a railway has been 
 made, and compensation given, fresh damage has been sustained 
 from the execution of the railway works, the question whether the 
 railway company is bound to make compensation in respect of this 
 subsequent damage may be determined on a claim for a manda- 
 mus {y). 
 
 Mandamus to "boards of health to make compensation. — "Where a 
 mandamus was issued to a local board of health, enjoining them to 
 make compensation to the prosecutor for damage sustained by him 
 by reason of the exercise by the board of certain powers conferred 
 upon them by the Public Health Act, and the defendants returned 
 that they had not denied their liability to make compensation, 
 but were ready to make it so soon as it hg,d been duly ascertained, 
 but that the prosecutor had taken no steps to have it ascertained, 
 nor given the defendants notice of his claim, or of the cause or 
 
 (2) Rex T. Nottingham Old Water Works 647. South YorJeshvre, ^c, In re, 14 Jar. 
 
 Co., 6 Ad. & E.-370. 1093 ,'see post, p. 1081, Morgan v. Metrop. 
 
 (r) Beg. y. Burslem Local Board, &c.. Rail. Co. 
 
 29 Law J., Q. B. 242 ; 28 ib. 345. (m) Seg. v. Com. of Woods and Forests, 
 
 (s) Reg. V. High Wycombe Rail. Co., 15 Q. B. 774. 
 
 L. E., 2 Q. B. 310, decided under s. 16 (x) Reg. v. Rynd, 9 L. T. R, N. S. 27. 
 
 of the Eailway Clauses Act, 8 & 9 Viet. (y) Reg. v. Aire and Colder Nam. Co. 
 
 "• 20. Rex T. Zeeds and Selby Rail. Co., ante, 
 
 (t) Reg. T. Birm, &c. Rail. Co., 15 Q. B. p. 767. 
 
^^'^'^- !•] DELAY IN APPLYING FOE. 1071 
 
 amount thereof, and had not appointed an arbitrator, or given 
 notice of his intention to do so, pursuant to the statute, and the 
 return was traversed generally, and on the trial it was found that 
 the defendants had denied all liability, it was held that the pro- 
 secutor was entitled, to a verdict on the whole return, and to a 
 peremptory mandamus. " It is said," observes Williams, J., " that, 
 looking at the provisions of the Public Health Act, 1848 (z), and 
 construing them by analogy to those of the Lands Clauses Conso- 
 lidation Act, the proper course would have been for the applicant 
 himself to have taken steps pursuant to s. 144, and to have got the 
 amount of the compensation fixed by means of the course there 
 prescribed, and then to have brought his action to recover the 
 amount, in which action the question of liability might have been 
 decided; but that involves the necessity, in all cases where there is 
 a doubt whether the party be entitled to compensation, of an ex- 
 pensive inquiry in the first instance, which in the result may prove 
 entirely futile, and we think the question of liability should be first 
 settled by mandamus. Secondly, it is said that the applicant ought 
 to have claimed a particiilar amount. We are of opinion that there 
 is no necessity for talking such a step. It would not regulate the 
 frame of the mandamus, or the future rights of the parties " {a). 
 
 Effects of Idches or delay in applying for the writ. — A party who 
 is entitled to a mandamus to a public board, to compel the maldng 
 of a rate for the payment of a debt, should apply to the court within 
 a reasonable time after default made. And if there is a primd facie 
 case of IdcTies or delay, the onus is thrown on the applicant of show- 
 ing that he has not been guilty of such negligence as disentitles 
 him to his remedy (b). 
 
 The application for a mandamus to a court of quarter-sessions, 
 to compel the hearing of an appeal, must be made in the term next 
 after the hearing of the appeal has been refused, unless special 
 circumstances appear by affidavit to account for the delay to the 
 satisfaction of the court (c). 
 
 The proceedings upon a mMndamus were first given by the 
 9 Anne, c. 20, and are the creature of that Act, but they have been 
 further extended by later statutes (d). The Srst step to be taken 
 by a party desirous of obtaining a mandamus, is to move the Court 
 of Queen's Bench for a rule to show cause why the writ should not 
 issue, or for a rule absolute in the first instance (e). By the Com- 
 
 (z) 11 & 12 Vict. 0. 63, s. Hi. (c) Beg. Y.MichmoruHSecorderof),^]. 
 
 (a) Sea. y. Burslem, §-c., mU, p. 1070. Bl. & Ell. 255. 
 
 (b) Sea V. HwrsOiowme Tarrant, 27 (d) -1 Wm. 4, c. 21, s. 3 ;.17 & 18 Vict. 
 Law J M. 0. 214. Seg. r. Halifax c. 125, s. 68 ; post, p. 1079. 
 
 Soad Trustees, 12 Q. B. 448. See Tfor- (e) Corner's Crown Practice (Manda- 
 
 thington T. Sidton, Simghmd t. Lowndes, Mus). 
 ante, p. 1069 ; and ib. n. (o). 
 
1072 MANDAMUS [CIIAP. XXIV. 
 
 mon Law Procedure Act, 1854, 17 & 18 Vict. c. 125, s. 76, it is 
 enacted, that upon application by motion for any writ in the Court 
 of Queen's Bench, the rule may be absolute in the first instance, if 
 the court "shall think fit ; and the writ may bear teste on the day 
 of its issuing, and may be made returnable forthwith, whether in 
 term or in vacation ; but time may be allowed to return it by. the 
 court, or a judge, with or without terms. It is further enacted, 
 s. 75, that no writ of mandamus issued out of the Court of Queen's 
 Bench shall be invalid by reason of the right of the prosecutor to 
 proceed by action for mandamus under that statute ; also (s. 77), 
 that the provisions of the Common Law Procedure Acts, 1852 and 
 1854, shall, so far as they are applicable, apply to the pleadings 
 and proceedings upon .a prerogative writ of mandamus. 
 
 Proceedings hy mandamus in respect of corporate offices in 
 boroughs have been expedited by 6 & 7 Vict. c. 89, s. 5, which 
 enacts, that in all cases of intended application for a mandamus, to 
 proceed to an election of corporate oificers, or for a quo warranto 
 against any person claiming to be a corporate of&cer, the party 
 intending to make the application may give notice in writing, and 
 deliver a copy of the affidavits, and cause may be shown in the 
 first instance ; and, if no sufficient cause be shown, the rule may 
 be made absolute, and a peremptory writ of mandamus issued, as 
 therein provided. 
 
 Conditions precedent to the issue of the writ. — To entitle a person 
 to a mandamus, enjoining the performance of some particular act 
 or duty, it must be shown that there has been a distinct demand of 
 that which the person moving .for the writ desires to enforce (/), 
 and a refusal or withholding of compliance on the part of the 
 defendant (g); but the objection that no sufficient demand' and 
 refusal appear must be taken before the merits are discussed (h). 
 
 "Where a party applies for a mandamus to compel churchwardens 
 to allow the applicant to inspect parish accounts, he must state 
 some special reasons on public grounds for the desired inspection ; 
 his right as a parishioner being a mere private right, in respect of 
 which a mandamus will not be granted (i). 
 
 Requisites of the writ. — If a writ of mandamus command the 
 defendant to do more than he is under a legal obligation to per- 
 form, the writ is invalid, and will be quashed (k). And where a 
 
 (■/) Seg. V. Brist. and Ex. Rail. Co., i (i) Sex x. Clear, i B. & 0. 901 ; Sex 
 
 Q. B. 162 ; 12 Law J., Q. B. 106. v. SmaV/piece, 2 Chitt. 288. 
 
 (g) Rex V. Brecknock, i/c. Canal Co., 3 (i) York and North Mid. Rail. Co. r. 
 
 Ad. &E. 222. Seg. r. Trustees of Cheadle MUner.lb Law J., Q. B. 379. Reg. v. 
 
 Sighway, 7 Jur. 373. R^. w. Norwich Lond. and South- West. Sail. (7o., 17 Law 
 
 and Brandon Rail. Co., 3 D. & L. 385. J., Q. B. 326. Seg. t. Ledgaird, 1 Q. B. 
 
 (A) Seg. V. East Co. Rail. Co., 10 Ad. & 623. Reg. v. Caledonian Rail. Co., 3 6 Q. 
 
 E. 531. B. 19. 
 
SECT. l.J PEOCEEDINGS IN. 1073 
 
 mandamus orders several things to be done, and is bad in respect 
 of one of the things commanded, it is bad in toto (I). If the writ 
 omits a necessary fact, it cannot be cured by the return (m). But 
 a defective statement of a valid claim, if that statement renders it 
 necessary to establish facts, which being established would support 
 the claim to the writ, is cured by verdict, although it might be fatal 
 on demurrer (n). 
 
 A writ of mandamus may be questioned by showing that the 
 title set out does not warrant the mandatory part of the writ. Thus, 
 if there is any discretion to be exercised as to the time when a 
 thing is to be done, or if the time or mode of performance is con- 
 ditional, or dependent upon a contingency, a writ commanding the 
 doing of the thing at once, without giving any discretion, or 
 providing for the contingency, will be defective (o). So where an 
 Act of Parliament directs, one or other of two things to be done, the 
 party who is to do the act has the option of doing which thing he 
 pleases. A writ of mandamus, therefore, founded on the statute, 
 and failing to give the election, is invalid, imless it assigns some 
 sufl&cient reason why the party is no longer to have his election (p). 
 
 The writ may be very general in its terms, showing what ought 
 to be done by the defendants, and what is required to be done 
 by them, but the return to the writ must be particular and 
 minute (q). 
 
 A writ of mandamus to a corporation or chartered company, to 
 compel the payment of a stim of money, should show on the face of 
 it that the remedy by way of action or distress, for the recovery of 
 the money, is not available (r). 
 
 Parties to whom the writ is to he directed. — Writs of mandamus 
 must be directed to those, and those only, who are to obey the writ. 
 Therefore, " if the writ be directed to the coroner and sheriff, where 
 it ought to be to one only, it is naught " (s). And so it is if it be 
 directed to a corporation in a wrong name (t) ; but it may be 
 directed either to the corporation in its corporate name or to those 
 who by the constitution of the corporation ought to do the act (u). 
 A mandamus to compel the admission to customary or copyhold 
 estates must be directed to the lord and steward jointly, and not to 
 
 J) Beg. V. Title C<m., 19 Law J., Q. B. ^^^^l^^^^ f « ^^ fi'^ Q- ^■ 
 
 (m) Reg. v. South-East. BaU. Co., i H. (r) Jt^ y. Margate Pkv Co 3 B. & 
 
 L Ca 471; 20 Law J., Q. B. 428. Aid. 224. Beg.y. HuU ar^ Selhj Rml. 
 
 '(n) Delamere (Lord) v. The Queen, L. K., Co., ante, p. 1059. 
 
 2 H of L 419. **> ^- '^- -Sere/orti {Mayor, &c., of), 2 
 
 (o-\ Red y St.Lukes,CkeUea,Zll&yi3., Salk. 701. 
 
 to; Meg. y.ot.jjaK^ , ^^^ j^ ^ ^^^^ {Mayor of), ib. 433. 
 
 (p) Beg. V. Southeastern RaU. Co., Bex y. ^ormch (Mayor, j-c), 1 Str. 55. 
 ^j,; jicy. ^^j j^^^ ^ AUngdon (Mayor, ij-c), 1 
 
 '"%)'Reg. y. Southampton Port Commit- £d. Haym. 559. 
 
10.74 PROCEEDINGS IN MANDAMUS. [CHAP. XXIV 
 
 tiie steward alone, in order that the interests of the lord may he 
 effectually protected (x). It is at the peril of the person who 
 desires the writ to have it properly directed (g'). 
 
 Service of the writ may he effected by delivery of a copy of the 
 writ, hut the original writ ought to he shown to each party served 
 at the time of the delivery of the copy {z). 
 
 Beturn to the writ. — The first writ of mandamus always concludes 
 with a comniand of obedience, or cause to he shown to the con- 
 trary (a) ; and the 9 Anne, c. 20 (6), requires a return to he made 
 to the first writ. The return is generally indorsed on the original 
 writ, and professes to be the answer of the parties to whom the 
 writ is directed, who humbly certify, and return to their sovereign 
 lad)', the Queen, at the time and place in the writ mentioned, 
 either that they have done what by the said writ they are com- 
 manded to do, using generally the very words of the mandatory- 
 part of the writ (c), or, if they have not yielded strict or substan- 
 tial obedieilce, setting forth the grounds and reasons for their 
 disobedience, which reasons must be fuUy and carefully specified, 
 and sho\^n to be sufiicient in law to excuse or justify such disobe- 
 dience. 
 
 When the writ has been issued to a judge, magistrate, or 
 judicial officer, commanding him to receive, hear, and determine 
 the merits of an information or complaint which he has wrongfully 
 refused to hear, it is a sufficient return, that he has received, heard, 
 and deterinined, or that he has received, heard, and dismissed, the 
 information or complaint. The coi^rt cannot, as we have seen, 
 interfere 'with the decision, however erroneous it may be (d), 
 
 The return, being matter of record, need not, when made by a 
 corporation, be under the corporate seal (e). 
 
 It is not necessary, in order to support the return, that every 
 part of it should be good ; it is sufficient if enough appear to show 
 a good justification, or a good legal reason, why the mandamus 
 should not be obeyed (/). If, therefore, a return is good in part, 
 and bad in part, the good part may be "separated from- that which 
 is bad (g). 
 
 The return to a mandamus to restore a dismissed public o^cer to 
 his office, must set out all the necessary facts precisely, to show that 
 
 (x) Rig, t. PoweU, 1 Q. B. 360. (d) Reg. v. Mairmaring, Ell. B3. & Ell. 
 
 (y) Re.x\. Culrghey, 2 Burr. 782. 474 ; ante, pp. 716, 719. 
 
 (z) Reg. T. Sinn..4rc. Rail. Co., 1 Ell. (e) Rex v. Eiteter (Bishop, A-c), 1 Ld. 
 
 & BI. 293 ; 22 Law J„ Q. B. 195. Cor- Rayrii. 223. 
 
 ner's Crown Pr., p. 227. ' (/) Rex v. Torh (Archbishop of), 6 T. 
 
 (a) Corner's Crown Pr., Mandamus. R. 498; Rex v. &ripihi, 5 B. & Aid. 735. 
 
 (6) Extended by 1 Wni. 4, c. 21, s. 8, Rex v. Londm (Mayor, SfC. of), 3 B. & 
 
 to all writs of mandamus. Ad. 268. 
 
 (c) Corner's Crown Pr,, Mandamus, (g) Reg. t. Nexu Windsor (Mayor of), 7 
 
 Appendix. Q. b. 917. Com. Dig. Mandamus. 
 
SECT. l.J KETUKN— PLEAS. 1075 
 
 the party has been removed in a legal and proper manner, and for 
 a legal cause ; and, where he has been discharged for misconduct, 
 that he was previously heard in his own defence, or that he was 
 summoned to answer the charge and made default, and that the 
 charge was proved against him Qi). 
 
 Return setting u^ inability or impossibility of 'performance — 
 Expiration of statutory power. — ^A writ of mandamus supposes the 
 required act to be possible, and to be obligatory when the writ issues. 
 Generally speaking, the writ suggests facts showing the obligation 
 and the possibility of fulfilling it, and a return pursuing this sug- 
 gestion, and traversing it, is good. Wliere the alleged obligation 
 is founded on public Acts of Parliament recited in the writ and 
 return, and it appears that the statutory power has expired, the 
 writ of mandamus is bad, and will be quashed if). It is, however, 
 no objection to an application for a mandamus to levy a rate, that 
 there are funds to pay the amount required, and therefore that a 
 fresh rate may not be necessary (/<;). 
 
 Pleas to the return — Traverse of material allegations. — By 9 Anne, 
 c. 20, s. 2, it is enacted,- that every person prosecuting a writ of 
 mandamus may plead to, or traverse, all or any of the material facts 
 contained in the return, to which the person making the return 
 shall reply, take issue, or demur, and such further proceedings shall 
 be had for the determination thereof as might have been had if the 
 person suing the writ had brought his action on the case for a false 
 return ; and if any issue be joine'd on su^h proceedings, the person 
 suing the writ may try the same as an issue joined in such action 
 on the case would be tried ; and in case a verdict shall be found for 
 the person suing the writ, or judgment be given for him upon 
 demurrer, or by nil dicit, or for want of a replication or other 
 pleading, he shall recover his damages and costs in such manner 
 as he might have done in such action on the case, and a peremp- 
 tory writ of mandamus shall be granted without delay for him for 
 whom judgment shall be given, as might have been done if the 
 return had been adjudged insufficient. And in case judgment 
 shall be given for the person making the return, he shall recover 
 his costs of suit. But it is provided (s. 3), that if any damages 
 shall be recovered by virtue of that act against any persons making 
 such return, they shall not be liable to be sued in any other actioti 
 for making such return. And the courts are to allow (s. 3) to 
 persons to whom any writ of mandamus may be directed, or to 
 
 (K) Bex v.Lifiierpool {Mayor ofll'RMrv. C'o., 16 Q. B. 884 S^. v. AmhergaU 
 731^ BexY.FavJ-shamFishCo.,8'];.'R. 4"^., 1 EIL & Bl. 381 
 352 Hex V. Lyme Regis {Mayor, &o.), 1 {h) RingUmd v. Lovyndes, 33 Law J., 
 
 Doug. 149. , ^ ., ^- ^- 2^- 
 
 (i) Reg. r. Land, and North- West. Rati. 
 
 z z z 2 
 
1076 PROCEEDINGS IN MANDAMUS. [CHAP. XXIV. 
 
 persons who shall sue or prosecute the same, such convenient time 
 to make a return, plead, reply, rejoin, or demur, as shall seem just 
 and reasonable. And the 4 Anne, c. 16, and aU statutes of jeofails, 
 are thereby (s. 7) extended to all writs of mandamus arid proceed- 
 ings thereon ; and by 1 Wm. 4, c. 21, s. 3, the several enactments 
 contained in the 9 Anne, c. 20, relating to the return, and the 
 proceedings on such return, arid to the recovery of damages and 
 costs, are extended to all writs of mandamus and the proceedings 
 thereon (I). 
 
 When the real object of a proceeding by mandamus is the 
 recovery or enforcement of a civil right, the mandamus is in effect 
 a civil action. Several matters, therefore, may be pleaded to the 
 return, and orders for the inspection of documents will be made, as 
 in any ordinary action (m). 
 
 Statutory protection to certain public officers, to whom writs of 
 mandamus are directed, is given by 1 Wm. 4, c. 21, s. 4, which 
 recites that writs of mandamus (other than such as relate to the 
 offices and franchises mentioned in 9 Anne, c. 20), are sometimes 
 issued to of&cers . and other persons commanding them to admit 
 to offices, and perform other matters in respect whereof the per- 
 sons to whom the writs are directed claim no right or interest, or 
 whose functions are merely ministerial in relation to such offices, 
 and that it may be proper that such officers should ifi certain cases 
 be protected against the payment of damages or costs ; wherefore it 
 is enacted, that it shall be lawful for the court to which application 
 is made for the writ of mandamus (other than such as relate to the 
 offices and franchises mentioned in the statute of Anne), to make 
 rules and orders calling not only upon the person to whom the 
 writ may be required to issue, but also upon every other person 
 having or claiming any right or interest in or to the matter of the 
 writ, to show cause against the issuing of the writ and payment 
 of the costs of the application, and upon the appearance of such 
 other person in compliance with such rules, or in default of 
 appearance, after service thereof, to exercise such powers and 
 authorities, and make such rules and orders as may be made under 
 the Interpleader Act, 1 & 2 Wm. 4, c. 58 (ante, p. 455), for giving 
 relief against adverse claims mad^ upon persons having no interest 
 in the subject of such claims (n) ; but it is provided, that the 
 return to be made to the writ and' issues joined in fact or law upon 
 any traverse thereof, or upon any demurrer, shall be made and 
 joined 'by, and in the name of, the person to whom the writ is 
 directed ;. but the same may, if the court so direct, be expressed to 
 
 (I) See Seg. v. Fatt, 1 Q. B. 636. 9' 7. 
 
 (m) Seg. v. Amiergate, ^c, 17 Q. B. (n) See 1 & 2 Wm.-*, o. 58, s. 
 
SECT. l.J INTEKPLEADEK — WRIT OF EEROK. 1077 
 
 be made and joined on behalf of sucli other person as may be 
 mentioned in such rules ; and, in that case, such other person may- 
 frame the return, and conduct the subsequent proceedings at his 
 own expense ; and, in such case, if any judgment shall be given 
 for or against the party suing the writ, the judgment shall be given 
 against or for the persons on whose behalf the return shall be 
 expressed to be made, and who shall have the like remedy for the 
 recovery of costs, and enforcing the judgment, as the person to 
 whom the writ has been directed would otherwise have had. 
 
 When the return is made on behalf of a third party under the 
 authority of the statute, the proceedings are not to abate on the 
 death, resignation, or removal from office of the person having 
 made such return, but "may be carried on in the name of such 
 person ; and if a peremptory writ is awarded, it may be directed 
 to any successor in office or right to such person (s. 5). 
 
 After a demurrer to a return m9,de by the party -to whom the 
 writ has been delivered, the court will, in the exercise of the 
 powers of this statute, let in another party really interested in the 
 matter to join in making an amended return (o) ; but the party 
 who seeks to come in must satisfy the court, or a judge at chambers, 
 that there is reason for his claim, and that he is acting lomfide, 
 and is not merely seeking to raise frivolous objections {p). 
 
 Time for taking objections to the writ. — There are cases where it 
 has been held that, after a return to a mandamus, the court will 
 not allow the validity of the writ to be questioned; but on a 
 concilium, where the whole record is set down for argument, the 
 defendant has a right to object to the writ in matters of substance, 
 as much as a defendant has a right to object to a declaration where 
 the whole record is set out upon demurrer, or writ of error after 
 plea, in civil proceedings {q). The question whether the writ does, 
 or does not, upon the face of it, disclose a good legal ground, for 
 the issue of it may be raised at any stage of the proceedings ;- ^nd 
 the court will, at any time before a peremptory writ of mandamus 
 issues, examine whether the writ' is so framed as to give them 
 jurisdiction (r). But Where the writ is good upon the face of it, 
 and a return has been made, and an issue thereon tried, the court 
 will not quash the writ on grounds which do not appear on the 
 record, and which might have been shown against making the rule 
 
 absolute (s). 
 
 Beview of proceedings in mandamus ly .writ of error. — By 6 & 7 
 
 (0) Beo. V. Paynter, 14 Law J., M. 0. ^ ir)CUrU ^-^f^^.^^. C^f^Oo.. 
 (2) Reg. V. 'PoweU, 1 Q. B. 360. B. Ul. 
 
1078 PEOCEBDINGS IN MANDAMUS. [CHAP. XXIV. 
 
 Vict. c. 67, s. 1, it is enacted, that whenever the person prosecuting 
 a writ of mandamus wishes to object to the validity of the return, 
 he shall do . so by way of demurrer to the same, and thereupon the 
 writ and return, and the demurrer, shall be filed of record, and 
 proceediags taken as upon demurrer to pleadings in personal 
 actions ; 'and the courts shall thereupon adjudge either that the 
 return is valid in law, or that it is not valid ; or that the writ of 
 mandamus is not valid ; and if they adjudge that the writ is valid, 
 but that the return is not valid, then they shall also by their 
 judgment award that a peremptory writ of mandamus shall issue, 
 which writ may be sued out within four days ; and the courts are 
 required by their judgment to award costs to be paid to the party 
 iu whose favour they decide. 
 
 And whenever any such judgment has been given, or whenever 
 issue in fact or in law has been joined upon the pleadings, and 
 judgment given thereon, any party to the record who thinks him- 
 self aggrieved by the judgment may sue out a writ of error to 
 reverse it, and proceedings thereon are to be taken, and costs 
 awarded, as in ordinary cases. of writs of error upon judgments. 
 Provision is made for the issue of a peremptory writ of mandamus 
 in case of the reversal of the judgment of the court below ; and 
 it is declared that no action shall be prosecuted against any 
 person for anything done in obedience to a peremptory writ of 
 mandamus. 
 
 Damages and costs. — Wherever a party traversing a- return 
 obtains a verdict, he is now, since the passing of the 1 Wm. 4, c. 
 21, s. 3 (ante, p. 1076), entitled to some damages and costs ; and if, 
 at the trial of any issue raised on a traverse of any material allega- 
 tion contained in the return, the jury omit to find damages, the 
 judge who tried the cause may dtder, from his recollection, the 
 verdict to be entered on the pqstea for noniinal damages, to enable 
 the successful party to recover his costs (t). 
 
 The costs of the application for the writ, independently of the 
 trial of issues of fact raised by traverse or the return, &c., are 
 regulated by the 1 Wm. 4, c. 21, s. 6, which enacts/ that in all cases 
 of application for a writ of mandamus, the costs of the application, 
 whether the vrait shall be granted or refused, and also the costs of 
 the writ, if the same shall be issued and obeyed, shall be in the 
 discretion of the court ; and the court is authorised to order and 
 direct by whom and to whom the same shall be paid, 
 
 Judgment non obstante veredicto. — ^Where the issues raised are 
 altogether upon iinmaterial points, and the return is virtually and 
 substantially a good return, the court will give judgment for the 
 
 (<) Reg. V. Fall, 1 Q. B. 636. As to coats ia error, see swpra. 
 
SECT. l.J ACTION, ETC., FOR FALSE RET UEX—- ATTACHMENT. 1079 
 
 defendant, notwithstanding the finding of the jury on those im- 
 material issues for the plaintiff (m). , _ 
 
 Action or information for a false return. — Actions for a false 
 return are maintainable by the party injured or aggrieved thereby («), 
 unless damages have been recovered by him, under the statute of 
 Anne, against the person making the return, upon a traverse of the 
 facts contained therein, and an issue thereupon raised under the 
 statiite (ante, p. 1075). The action must be brought against the 
 party or parties who caused the return 'to be made (y). It is not 
 maintainable against one who voted against the false return, and 
 was consequently no. party to- it (2). 
 
 If the matter of the -return concerns the public government, 
 and no particular person is so coacerncd or interested' as to be 
 aggrieved or injured thereby, an information may be filed against 
 the particular persons joining in and making the false return (a). 
 
 Attach?nent for disobedience of peremptory writ of tnandamus. — • 
 Objections to the validity of a peremptory writ of mandamus may 
 be taken on a motion for an attachment, and it may be shown that 
 the writ either commands the defendant to do more than he is 
 bound to do, or that he is enjoined to do itin some particular mode, 
 where the law gives 1dm an option or discretion in the mode of 
 performance. But no return will be admitted to a peremptory Avrit 
 of mandamus other than a certificate of perfect obedience and due 
 execution of the writ (&). 
 
 SECTION II. 
 
 OF THE CLAIM TO A WRIT OF MANDAMUS IN AN ACTION AT 
 COMMON LAW. 
 
 Of the union of an action in respect of a private injury with an 
 application for a mandamus. — By the Common Law Procedure Act, 
 17 & 18 Vict. c. 125, it is enacted ^s. 68), th^t the plain^iif, in any 
 action in any of the superior courts, except replevin and ejectment, 
 may endorse T^Don the writ and copy to be served a notice that' the 
 plaintiff intends to claim a writ of mandamus, and the plaintiff 
 may thereupon claim in the declaration, either together with any 
 other demands which may now be enforced in any such action, or 
 separately (c), a writ of mandamus commanding the defendantt 
 
 (u) Req y. Darlington School Governors, {a) Surgeons' Company's case, 1 Salk. 
 
 6 B 719 ^^^' -^"^ ^' 4ilngdon [Mayor of), 2 
 
 (x) Green.\. Pope, 1 Ld. Eaym. 125. Salk 431. . , n T! «i^ " 
 
 Yaughan v. Lewis, Carth. 227. 6 Rog- 1- Ledgm-i, I Q. B. 61 6 
 
 (v) Hex V. Ripon (Mayor of), 1 Ld. (c) See Fotlierhy v. Metrop. Rail Co., 
 
 Ea/m. 564. i"'««. P- 1080. 
 
 (z) R. V. Pilkington, Carth. 172. 
 
lUOU AUTIUIS JiUit A JVIAJNUAMUB, l^aAt. AAIV. 
 
 fulfil any duty in the fulfilment of which the plaintiff is personally 
 interested. The declaration in such action (s. 69), is to set forth 
 sufiicient grounds upon which such claim is founded, and that the 
 plaintiff is personally interested therein, and that he sustains, or 
 may sustain, damage by the non-performance of such duty, and that 
 performance thereof has been demanded by him, and refused or 
 neglected. The pleadings and other proceedings in any action in 
 which a writ of mandamus is claimed (s. 70) are to be the same, as 
 nearly as may be, and costs are to be recoverable by either party, 
 as in an ordinary action for the recovery of damages. In case 
 judgment is given for the plaintiff, that a mandamus do issue, the 
 court in which such judgment is given may (s. 71), if it shall see 
 fit, besides issuing execution in the ordinary way for the costs 
 and damages, also issue a peremptory writ of mandamus to the 
 defendant, commanding him forthwith to perfoim the duty to be 
 enforced. The writ need not recite (s. 72), the declaration or other 
 proceedings, or the matter therein stated, but may simply command 
 the performance of the duty, and may, in other respects, be in the 
 form of an ordinary writ of execution, except that it must be 
 directed to the party, and not to the sheriff, and may be issued in 
 term or vacation, and returnable forthwith ; and no return thereto, 
 except that of compliance, is to be allowed ; but time to return it 
 may, upon sufficient grounds, be allowed by the court or a judge, 
 either with or without terms. An action for a mandamus may be 
 maintained separately, i.e., without the commencement of another 
 action, and it lies whenever a public duty, in the fulfilment of 
 which the plaintiff is interested, is created by statute, whether the 
 plaintiff has sustained damage or not (d). 
 
 The writ of mandamus so issued is to have (s. . 73) the same 
 force and effect as a peremptory writ of mandamus issued out of 
 the Court of Queen's Bench, and, in case ,of disobedience, may be 
 enforced by attachment. The court may (s. 74), upon application 
 by the plaintiff, instead of proceeding against the disobedient 
 party by attachment, direct that the act required to be done may 
 be done by the plaintiff, or some other person appointed by the 
 court, at the expense of the defendant ; and, upon the act being 
 done, the amount of such expense may be ascertained- by the court, 
 either by writ of inquiry or reference to a master,, as the court 
 or judge may order ; and the court may order payment of the 
 amount of such expenses and costs, and enforce payment thereof 
 by execution. 
 
 "VVe have seen that the prerogative writ of mandamus is never 
 granted for the enforcement of a mere private duty, where there is 
 
 (d) Potherhy v. Melrop. Rail Ge,, L. E., S C. P. 188. 
 
SECT. 2.] WHEN MAINTAINABLE. 1081 
 
 a clear cause of action, and compensation in damages would be an 
 effectual remedy (ante, p. 1059). And the same rule lias been held 
 to apply to the action of mandamus ; and that where the duty to be 
 performed is nothing more than the ordinary duty springing out of 
 a contract in respect of which an action for damages is the appro- 
 priate remedy, the action for a mandamus does not lie. A manda- 
 mus, therefore, cannot be claimed to make a debtor pay a mere 
 private debt, in respect of which the ordinary remedy by action is 
 available (e). 
 
 Actions in which a claim for a mandamus may he sustained. — 
 Wherever, by charter or Act of Parliament, a duty is imposed upon 
 a corporate body or chartered company, in the fulfilment of which 
 the plaintiff is interested, and in respect of the non-fulfilment of 
 which the plaintiff is entitled to maintain an action for damages, 
 he may in the same action claim a mandamus for the fulfilment of 
 the duty (/). Thus where the plaintiff, in an action for a manda- ' 
 mus against a trading company, set forth the incorporation of the 
 company by letters patent, directing 'amongst other things that the 
 capital of the company should be divided into shares, and provision 
 made for the registration of the names of all the proprietors of such 
 shares ; and showed that a register of shareholders had been estab- 
 lished, in conformity with the provisions of the charter ; and that 
 the plaintiff was entitled, as the executor of a deceased shareholder, 
 to have his name inserted in such register ; averring that he was 
 personally interested, &c., and had sustained damage, and had made 
 a demand on the company to have his name entered, and that they 
 had refused, &c., it was held on demurrer that the plaintiff was 
 entitled to the writ ; for wherever there is a duty in the fulfilment 
 of which the plaintiff is personally interested, and which ought 
 to be fulfilled under royal charter, the non-performance being a 
 giievance to an individual, that is a case for an action for a manda- 
 mus (g). It is a case also, as we have seen, where a prerogative 
 writ would be granted independently of the statu,te (h}. 
 
 So, where the plaintiff having set forth that the defendants were 
 a joint-stock company, duly- incorporated under the Joint-Stock 
 Companies Act, and that the plaintiff was duly entered on the 
 register of shareholders as a holder and proprietor of certain shares, 
 numbered, &c., and that the defendants removed his name from 
 the register, and refused, after demand, to restore it, &c., and 
 
 (e) Bush V. Seavan, 32 Law J., Exob. 116. But a company is not bound to 
 
 54 ■ 1 H & 0. 500. Benson v. Paul, 6 register a transfer not in accordance with 
 
 Til' & Bl 273 • 25 Iiaw J,, Q. B. 274. the statutable form, Reg. v. Gen. Cm,. Co., 
 
 if) See Mt^aan v. Metrop. Rail. Co., 6 Ell. & Bl. 415 ; 25 Law J., Q. B. 342. 
 
 L B 3 0. P. 553' Copdand v. North-Bast. Bail, Co., 6 Ell. 
 
 (a^'lA bainpbell. Norris v. Ir. Land & Bl. 277. 
 Co, 8 Ell. & Bl. 512 ; 27 Law J., Q. B. {h} Ante, pp. 1066, 1067. 
 
1082 ACTION FOK A MANDAMUS, [CHAP. XXIV. 
 
 claimed damages and a mandamus, it M'as held that the claim was 
 properly made (i). 
 
 Where the plaintiff, in his declaration against the clerk of a 
 local board of health, set forth that certain improvement commis- 
 sioners, appointed under a local Act, contracted to pay him a certain 
 sum for certain services towards carrying into effect the purposes 
 of the Act ; that the services were rendered, but the commissioners 
 neglected to pay, and that afterwards, by virtue of another Act of 
 Parliament, the duties of the commissioners were transferred to the 
 local board of health ; and it was enacted that all debts payable by 
 the commissioners should be satisfied by the local board out of 
 rates they were authorised to levy > and the declaration went on 
 to show that the debt remained unpaid ; that the plaintiffs were 
 personally interested in the levying a rate for payment thereof; 
 that they had demanded and been refused payment and a rate, and 
 ' sustained damage ; and they then claimed a mandamus ; and the 
 cause went to trial, and the damages were assessed, it was held that 
 the plaintiff was entitled to the mandamus claimed. " The provi- 
 sions of the Common Law Procedure Act," observes Hill, J., " now 
 enable a plaintiff, in an action in which he might recover judg- 
 ment, but could not have execution, and would have had to apply 
 for a mandamus, to combine a claim for a mandamus with his 
 action, so that if he succeeds, a mandamus issues as part of the 
 judgment. In such a case, I think the amount of the debt for 
 which the mandamus is ultimately to issue luay be ascertained in 
 the action " (k). 
 
 Commissioners, or the members of a local board, appointed 
 annually for' executing the powers of a local Act of Parliament, are 
 generally a fluctuating body in the nature of a corporation, repre- 
 sented by their clerk, who is the party, as we have seen, to be sued 
 for services rendered them for purposes within the scope of the 
 Aot(l). But for the statute, the 'commissioners who. retain, or 
 order the services to be rendered by, the plaintiff, would be per- 
 sonally liable ; but as they are acting for public purposes under 
 statutory authority, with power over a public fund created by the 
 statute, they are generally expressly exempted from personal liabi- 
 lity, and the burthen of satisfying and discharging the debts they 
 incur in the execution of the purposes of the Act is thrown upon 
 the fund they are authorised to administer. An action to enforce 
 payment of these debts must, as we have seen, be brought a!gainst 
 them in the name of their clerk, and when judgment is obtained 
 
 (i) Swan t. SHt. Austr. Co., 7 H. & N. 940 ; 28 Law J., Q. B. 265 ; 29 ib. 40 
 604 ; 2 H. & C. 175. Ward v. Sotlth- (I) Ante, p.. 76?. £u$h v. Maitin, 3-3 
 
 East. Rail. Co. 29 Law J., Q. B. 177. Law J., Exch. 17. 
 
 (Ic) Ward v. Lowndes, I Ell. & Ell. 
 
SECT. 2.] WHEN IT CANNOT BE SUSTAINED. 1083 
 
 against the clerk, the public fund, or the rates, are to be resorted 
 to for its satisfaction, and not the private property of the commis- 
 sioners (m). If, therefore, after judgment has been recovered 
 against the clerk, a demand is made upon the commissioners for 
 satisfaction and discharge of the judgment debt, and they neglect 
 to provide themselves with funds, or to make the payment, an 
 action for damages may be brought upon the judgment, and the 
 claim for a mandamus conjoined therewith, to compel the levying 
 of a rate and the satisfaction and discharge of the judgment debt. 
 But, in these cases, the old prerogative writ of mandamus would 
 seem to afford as convenient a remedy for enforcing satisfaction of 
 the judgment debt (n) as the bringing of a second action for a" 
 mandamus. If a second action is brought it must, in many cases, 
 be commenced within six months of the recovery of the judg- 
 ment (o) ; and it must appear that the judgment has been 
 recovered against the clerk or secretary of the board in respect of 
 some act or proceeding by the members of. the board in the bond 
 _fide execution of the statutory powers entrusted to them, so as to 
 exempt them, and their clerk or secretary, from personal liabi- 
 lity (p) ; for if they have exceeded the powers conferred upon them, 
 and are not protected from personal liability by the statute, they 
 cannot charge the debts they* incur, or the consequences of their 
 unauthorised proceedings, upon the rates, and a mandamus cannot 
 issue to compel them to do what they have no power or authority 
 to do (q). 
 
 Actions in which a claim for a mandamus cannot he sustained. — 
 If, in an action for a mandamus, nothing more appears upon the 
 record than that the action is brought for the recovery of a debt 
 incurred by the members of some local board, commissioners, or 
 corporate body, acting in discharge of public duties, or in the exer- 
 cise of statutory powers, and there is nothing to exclude the per- 
 sonal liability of the defendants, and to show that the ordinary 
 remedy by action would not be available, a claim for a mandamus 
 cannot be sustained. Thus, where the. plaintiffs in an action for a 
 mandamus set forth that the defendant, as clerk to certain commis- 
 sioners, for putting into execution a local improvement act, became 
 indebted to the plaintiffs for certain salary, due to them for services 
 rendered to the commissioners under the provisions of the Act, 
 upon the retainer and request of the 'commissioners, and also for 
 work and labour, journeys and attendances, as solicitors for the 
 
 Cm) ffall V. Taylor, Ell. Bl. & BlI. 107; Board, ante, p. 1069. 
 27 Law J. Q. B. 311. Kendall v. King, ip) Southampton, ^e., Bridge Co. v. 
 
 17 C B 483 ■ ante, pp. 742 — lH- Sovihavypton Local Board, ante, p. 742. 
 
 In) Ante, pp. 1068, 1069. (?) Duncan v. Findlater, -amte, p. 743. 
 
 (o) Burland v. Kingston, SfC, Local Bush v. Beavan, 32 Law J., Exoh. 58. 
 
1084 ACTION FOE A MANDAMUS. [CHAP. XXIV. 
 
 commissioners upon their retainer, &c., and for fees, &c., money 
 paid, &c., and on an account stated, and that these debts were a 
 charge upon any monies and funds which might be in the hands of 
 the commissioners, if the commissioners had funds, and, if not, then 
 upon a rate leviable under the statute ; that the plaintiffs were ' 
 personally interested, &c. ; that they demanded and were refused 
 payment, and sustained damage, &c., and the plaintiffs then 
 claimed a mandamus, it was held, on demurrer, that no right to a 
 mandamus had been shown, for there were various ways in which 
 the commissioners might retain the services of an attorney in 
 matters relating to their ofi&cial duties, and become personally 
 •liable in respect thereof ; and there was nothing to show that the 
 debt claimed could not be recovered by the ordinary remedy by 
 way of action of debt. " The mandamus in this case," observes 
 Channel, B., " is to pay out of the rates, or to levy rates for the 
 purpose ; it is objected that the writ is bad from being in the 
 alternative ; but passing this by, both branches of the alternative 
 assume and imply a legal duty, when the writ of mandamus 
 issued, to pay these claims out of the rates, or levy rates for the 
 purpose; and this without even alleging that the services were 
 rendered to, or on the retainer or request of, the commissioners 
 as smh, or for business done in carrying out the purposes of the 
 Act. Assuming the services not to have been in execution of the 
 powers of the Act, then they would not be even payable out of the 
 rates" (r). 
 
 Declaration in an aoiion for a mandamus. — "When the mandamus 
 is claimed for the satisfaction and discharge of a pecuniary demand, 
 it must be shown, as we have seen, that it does not constitute a 
 mere private debt, in respect of which the ordinary action of debt 
 would be an available remedy, but that the only mode of obtaining 
 payment is by recourse to a rate, the duty of making and levying 
 which is, by statute or royal charter, imposed upon the defendants. 
 The declaration need not state the precise amount due, as in the 
 case of the prerogative writ of mandamus to enforce a judgment 
 obtained against an officer of a corporation ; but the plaintiff is at 
 liberty to allege the existence of the debt generally, leaving it to 
 the jury to find the precise amount for which the mandamus 
 claimed is to issue, and when that amount is found by them, the 
 mandamus forms part of the" judgment in the action (s). 
 
 (r) Bitsh V. Beavan, 32 Law J., Exch. Common Law Procedure Act, 17 & 18 
 
 60. Some of the passages in the judg- Vict. c. 125, orrfe, pp. 1079—80. Wm-d v. 
 
 ment in this case do not appear to be Lowndes, 1 J5I1. & Ell. 940 • 28 Law J." 
 
 reconcileable with the judgment of the Q. B. 265 ; (mte, p. 1083. ' ' 
 
 Court of Queen's Bench, in narrowing the (s) Ward t. Lowndes, 1 BU. & EH. 940 • 
 
 operation of ss. 69, 70, and 71, of the see ante, pp. 1082, 1083. ' ' 
 
SECT. 2.] RECXmCATION OF EEGISTEE. 1085 
 
 The pleadings in the action are, as previously mentioned, to be 
 the same, as near as may be, as in an ordinary action for the 
 recovery of damages {ante, p. 1080). 
 
 Orders for the rectification of the register of shareholders in joint- 
 stock companies.— ThQ 25 & 26 Vict. c. 89, s. 35, enables any of the 
 superior courts of law or ec[uity to make orders for the rectification 
 of the register of shareholders of registered joint-stock companies, 
 on the application of persons entered, or omitted to be entered, on 
 the register, or if unnecessary delay takes place in entering on the 
 register the fact of a person having ceased to be a member {t), and 
 to decide on the title of the alpplicdnt to have his name entered on, 
 or erased from, the register ; but when once a person has been put 
 on the register, the company cannot erase his name therefrom, 
 except at the instance of a party having a better title, or by showing 
 that the registration is a nullity, by reason of fraud, misrepresen- 
 tation, or forgery (u). The courts* will not exercise the powers 
 given by this section, except in cases which are clear and free from 
 complication (x). 
 
 Most of the applications for the rectification of the registers 
 under the above section take place on the winding up of a com- 
 pany (y), and in deciding them the court will take into consideration 
 who is the applicant, whether the official liquidator, as the repre- 
 sentative of the company, or the transferor of shares, the transfer of 
 which was not registered before the commencement of the winding 
 up {z). The directors of a company have no discretionary power, 
 independently of any power expressly given them by the articles 
 of association, to refuse to register a transfer which has been hond 
 fide made. Where, therefore, a transferee gave an address at which 
 he was only an occasional visitor, it was held that the directors 
 were bound to register the transfer, although the company was 
 then in difficulties, the transferee a person of small means, and the 
 shares were sold by the transferor in order to get rid of his 
 liabUity (a). Where, however, a discretion is given to the directors 
 by the articles of association, a transferor cannot claim to have 
 his name removed from the register under the above section, 
 on the ground of unnecessary delay, unless the transferee be 
 a responsible person (6). And there is no duty, it seems, on the 
 
 (t) See Lowe's case, L. E., 9 Eq. Ca. 589. App. 95. As to such applications by an 
 
 («) Swan, Ex parte, 7 0. B-.N. S. 400; infant, see ITaH's case, L. B., 6 Eq. Ca. 
 
 30 Law J., C. P. 113. Addison on Con- 512. Imnsden's case, L. E., 4 Ch. App. 
 
 tracts, 6th edn., pp. 131—134. 31. 
 
 {x} Re Beaton Steel and Iron Co., (s) SicheU's case, L. R., 3 Ch. App. 119. 
 
 Simpson's case, h. E., 9 Bq. Ca. 91. (a) Weshm's case, L. E., 4 Ch. App. 20 ; 
 
 ^«) Musgrave's case, li. S.., 5 Eq. Ca. ibid. 6 Ejj. Ca. 238. 
 
 193. SaUgreen's case, L. E., 3 Ch. App. (b) Shipman's case, L. E., 5 Eq. Ca. 
 
 323. Be Banle of Hindustan, China, and 219. And see /ToWere's Ciise, L. E., 8 Eq. 
 
 Japan, Ex parte Kintrea, L. E., 5 Ch. Ca. 444. 
 
1086 KECTIFICATION OF KEGISTEE. [CHAP. XXIV. 
 
 part of a company to communicate a refusal to register to the 
 transferor (c). 
 
 " We must not/' says Kelly, C.B., " exceed the powers conferred 
 upon us hy this section." An application, therefore, by a person to 
 have his name removed from the register has been refused, as not 
 coming within the terms of the section, although it had, been 
 decided in an action by the company against him, that he was not 
 liable to calls, on the ground that the company could not lawfully 
 commence business without having passed a certain resolution, 
 which they had not passed {d). 
 
 Where shares belonging to a person have been transferred by a 
 forged transfer, the real owner may' under the above section obtain 
 the restoration of his name to the register (e) ; and th^ company ' 
 which has registered the forged transfer, and which, by giving 
 certificates to the forger, has thus enabled him to hold himself out 
 to the world as the owner of the shares, is estopped from denying 
 its liability to an innocent purchaser for value, who has, in reliance 
 upon such certificate, purchased the shares from the forger, and 
 will be liable to pay to such purchaser, as damages, the value of 
 the shares at the time it first refused to recognise him as a share- 
 holder, with interest at four per cent. (/); 
 
 (c) Gustard'scase, L. R., 8 Eq. Ca. 438 ; (e) Or he may file a bill in Chaneery ; 
 
 38 L. J., Oh. 610. Johnson y. Senton, L. B,, 9 Eq. Ca. 181. 
 
 {d) Ex parte Ward, 37 Law J., Eich. (/) Se Bahia and San Francisco Rail. 
 
 83. Co., ante, p. 985. 
 
INDEX, 
 
 '^'T^/ri.*-^^*''''''-''"-"-^— «--<-^-^ 
 
 /jr- 
 
 ABATEMENT. See Ndisanoe. 
 
 ABSENCE, 
 
 efiFect of, under Statute of Limitations, 270 
 
 ACCIDENT. ;Sce Assault. 
 
 injuries caused by, when actiOBalble; 2 
 whether a person is liable for the effects of, 169 
 non-liability for, unless caused by negligence, 380 — 382 
 
 ACCOED AND SATISFACTION. See Plea— Injunction. 
 
 ACCOUNTANT, 
 negligence of, 929 
 
 ACTION. See Statute of Limitations. 
 
 cannot be brought more than once for the same wrong, 965, 967, 968 
 brought against the wrong person by mistake, not a tort, 4 
 several, in respect of same cause, cannot be brought in court of co-ordinate juris- 
 diction, 964 — 967 
 seous — ^if one action is. in inferior or foreign, the other in a Superior court or 
 court in this country, 964, 964 n. 
 or where one action is in personam, and the other in rem, 964, 969 
 different causes of, when may be joined in the same suit, 955, 956 
 pleadings in. See Deolaeation— Damage — Pleas. 
 unfounded. See Malice. 
 
 ACT OF PARLIAMENT. See Statute. 
 
 ADMINISTBATOE. See Executor. 
 
 when may sue for injuries to intestate's personal property, 926 
 
 ADMIRALTY COURT, 
 prohibition to, 1037 
 
 ADMISSIONS. See Malicious Prosecution. 
 
 of liability by a party to a cause, 988 
 
 of defendant in action for conversion, 371 
 
 of under-sheriff or bailiffs, when evidence against the sheriff, 677 
 - • of occupancy in actions for nuisances, 210, 211 
 
 of knowledge of ferocity of animal kept, 212 
 
 to prove malice, 616 
 
 are evidence, although they relate to a deed, lease, &;c,, not produced, 565 
 
 ADULTERATION. See Bread. 
 
 ADULTERY. &e Husband— Wife. 
 
 damages recoverable for, 903 — 905 ^ 
 
 ADVOCATE ^ ^ 
 
 statements of, in conduct of case, are privileged, 806, 807 
 
1088 
 
 INDEX. 
 
 AGENT. See Brokeb—Authobitt— Principal — Bailifi'. 
 
 receipt of rent by, on behalf of person wrongfully claiming land, 271 
 occupation of house by, rent free, for twenty years does not confer title, 272, 273 
 lien o'f, 443, 444 
 
 AGISTMENT. &e Cattle. 
 lien for, 440 
 
 AIR. See Light — Mill. 
 grant of right of, 94—96 
 
 ALIEN, 
 
 ■when entitled to copyright, 41 
 security for costs by, '1025, 1026 
 
 ALIMONY. See Wife. 
 
 AMBASSADOR, 
 
 cannot be sued, 957, 958 
 
 property of, exempt from distress, 531 
 
 AMENDMENT. See Plaintiffs. 
 
 of variances between the declaration and eTidence, 986 — 988 
 
 of all defects and errors in civil causes to determine the real question in contro- 
 versy between the parties, 986, 987 
 
 instances of, in actions of libel, for false representation, tresspass to land, or for 
 keeping a ferocious dog, 987 
 
 by adding fresh plaintiffs in actions of ejectment, a fresh plea, striking out a 
 count, or altering a declaration or count from one form of action to another, 
 987, 988. 
 
 of variance in action of slander, 820 
 
 of nonjoinder or misjoinder of plaintiffs before trial, 944 
 
 at trial, 944, 945 
 
 of nonjoinder of plaintiffs after notice or plea in abatement, 945 
 
 of misjoinder of defendants, 945 
 
 AMENDS, 
 
 tender of, under statute, 593, 767 
 tender of, by justices, 728 
 
 within what time to be made, 728, 729 
 by companies, 765 
 plea of tender of, 769 
 
 ANCHOEAGE. ^cePoRT. 
 
 ANIMALSi See Eee^ Natub*. 
 
 distinction between, if ferce, and if mamsuetw ndturce, 191 
 
 injuries from keeping ferocious, 190 — 193 
 
 injuries from driving ferocious, along a highway, 192, 193 
 
 injuries by ferocious, may be an act of trespass against person who loosed them 
 
 319 
 negligence need not be proved in actions for injuries from ferocious, 212 
 declarations for injuries by ferocious, 208 
 liability for keeping, though not negligently, 208 
 effect of plea of not guilty in actions for keeping ferocious, 209 
 evidence in actions for keeping ferocious, 212, 213 
 damages in actions for injuries from ferocious, 214. 
 
 APOTHECARY, 
 negligence of, 918 
 
 APPEAL. -See Justices. 
 costs on, 1021 
 
 APPRENTICE. See Mastbk. 
 
 inducing to leave his master, is actionable, 906 
 
 ARBITRATOR. See Aeohiteot. 
 
 not liable for mistakes or carelessness in conducting arbitration, without malice 
 
 or corruption, 636 
 neglect by, to hear both parties, or undue bias, will invalidate award, 636 
 power of, under Lands Clauses Act, 749, 760, 763, 756 ' 
 
 authority of, determined, if time for making award is not duly enlarged 955 
 power of, over costs, 1015 ' 
 
INDEX. 1089 
 
 ARBITRATOR— coiiiiBMed 
 
 may be examined in action on award in oompenaation case, 756 
 mandamus to, to assess statutory compensation for injuries caused by construction 
 of railway, 1070 
 
 ARCHBISHOP. See Eoolesiastical Dilapidations. 
 
 ARCHITECT, 
 
 employed to determine questions between builder and employer, is not liable for 
 errors of judgment, 636, 637 
 but may be sued for neglect to perform his functions at all, 637 
 fraudulently inducing, to withhold certificate of completion of works, is action- 
 • able, 865 
 
 AREA. See Hi&hway— Shaft. 
 
 liability for dangerous state of, 172, 173 
 
 ARREST. See Constable— Costs — Impeisonment — Sheriff. 
 what constitutes, 606, 626. 
 on Sunday illegal, 718 
 
 on suspicion of felony, what is reasonable and probable cause for, 603 
 for felony, when justifiable without warrant in house of another, 295 
 by person other than constable, when jiistifiable, 578, 586 
 for misdemeanour, 578, 579 
 of wrong person, 579 
 
 for malicious injuries to property, 579, 590 
 of persons committing indictable offence at night, 580 
 by servants of railway companies, 584, 585, 596, 597 
 of persons as deserters, 585 
 of dangerous lunatics, 585, 586 
 for preservation of the peace, 580 — 582 
 
 breach of the peace, what amounts to, 531, 582 
 of persons disturbing divine service, 582 
 
 of vagrants and persons committing acts of public indecency, 582 
 under Merchant Shipping Act, 582 
 of principal by his bail, 582, 583 
 for offences within metropolis, 583, 584 
 
 of persons suspected of being in possession of government stores, 583 
 for a disturbance and refusal to leave a house or shop, 604 
 of soldiers, &c., by their superior officers, 604, "695 
 by military or naval officers, 934 
 
 by persons intending to act in pursuance of an Act of Parliament, 589, 591 
 on mesne process is abolished, 605, n., 625 
 when allowable in an action, 625 
 malicious, when actionable, 625, 626 
 
 by sherift of person privileged from, as a witness, is not actionable, 626 
 who to be defendants in actions for unlawful, 627 
 
 attorney and client, 627 
 plea of not guilty in actions for, 628 
 evidence in actions for, for plaintiff, 628, 629, 630, 631 
 if caused by plaintiff's own disobedience of summons, not actionable, 631 
 
 ^ARTIFICER. See Workman. 
 
 ASSAULT. See Costs. 
 
 what constitutes, 570, 571 
 
 in self-defence or defence of property, or in obedience to legal warrant", or the 
 
 result of mere accident, is justifiable, 569, 573, 606 
 in defence of person or property, 572, 673, 574, 575, 607 
 in resistance of forcible entry or to prevent seizure of chattels, 573 
 caused by inevitable accident is not actionable, 598, 599 
 resulting from acts of negligence, 570> 571 
 by handcuffing unconvicted prisoners, 571 
 distinction between, and battery, 571 
 mayhem and wounding, 572, 574 
 in preservation of the public peace, 574, 604 
 by license of person assaulted is not actionable, 598 
 by whipping a horse and causing him to run over a person, 6 
 on persons wrongfully in possession of land, 269 
 by servants of corporation is actionable, 931 
 liability of corporation to action for, 596, 597 
 malice not a necessary ingredient of, 27 
 who to be plaintifTs in action for, 594 
 
 A.A A A 
 
1090 INDEX. 
 
 ASiSATJVS— continued. 
 
 declarations for, 597, 598 
 
 plea of son assault demesne to action of, and evidence thereundeiveOe, 60/ 
 
 pleas of justification in action of, 601 
 
 in defence of children, wife, servants, or friends, is justifiable, 602 
 
 in moderate correction by parents of children, schoolmasters of pupils, and 
 
 masters of ships, of seamen, &c., is justifiable, 603 
 evidence of, 605 
 damages for, 607—610 . 
 
 where assault by more than one, 608, 609 
 
 prospective, 609 
 
 ASSIGNEES. See Lessees. 
 of patent. See Patent. 
 
 ASSiaNMENT, 
 
 of chose in action, notice of, 352, n. 
 
 ATTORNEY, 
 
 negligence of, 403— i06, 420, 421_, 971, 972 
 retainer of, ceases on recovery of judgment, 405 
 has no implied authority to postpone execution, 406 
 
 - is not liable for trespasses committed by sheriff in execution of writ, unless he 
 interferes, 671 
 or the process is set aside for irregularity, 671, 672 
 when liable for unlawful arrest, as well as his client, 627 
 
 liabnity of, for false imprisonment, if process has been set aside as irregular, 596 
 otherwise, if for eiTor, 696 
 or if judgment be set aside in the exercise of equitable jurisdiction, 596 
 fraud of, in forging deeds, his employer liable, 854, 855 
 lien of, on alimony money, 882 
 lien of, 446—447. 
 charge on property recovered by, 447 
 
 ATTOENEY-GENEEAL, , 
 
 may apply for injunction against obstruction of highway, 225 
 injunction against public nuisances by, 217, 218 
 
 AVOWRY. See Replevin. 
 pleas in bar of, 559, 560 
 
 AUCTIONEER, 
 
 duty of, to disclose facts affecting the title to the property he sells, 858 
 
 sale by, only conveys such title as the auctioneer has, 848, 849 
 
 may sue person, who orders him to sell goods which do not belong to him, 865 
 
 may sue for conversion of chattels entrusted to him to sell, but not for conversion 
 
 of fixtures, 362 
 lien of, 438, 439 
 
 AUDITOR, 
 
 report of, to company, reflecting on the conduct of the manager, is a privileged 
 communication, a;nd may be published to the shareholders, 780 
 
 AUTHOR. See Manuscript — Copyright. 
 rights of, at common law, 41 
 
 AUTHORITY. See False Representation — ^Lbavb and License. 
 
 false representation of, by vendors, agents, &c., when actionable, 852 — 855 
 
 abuse of. See Military Oeeiceb — Naval Opeiobe. 
 
 abuse of, is actionable, 29, 30 
 
 abuse of, renders a person a trespasser, 264, 265 
 
 abuse of, on sale of goods, 34 
 
 BAIL. See Arebbt. 
 
 BAILEE. See BAiLOBrrCoMMON Caeeier— Damaqes — Injunction- Jus teeth- 
 Lien. 
 cannot dispute the title of his bailor, 342 
 of goods for sale can give a valid title, 339 
 
 negligence of, in keeping, using, or selling the article bailed, 425 et seg. 
 not liable for negligence, if act of bailor has conduced to the loss, 433 
 or bailor takes them under his own charge, 437 
 
INDEX. 1091 
 
 BAILEE — continned. 
 
 may impose conditions upon his receipt of goods, but they must be reasonable 
 
 ones, 435, 447, 448 
 liability of, for loss of goods bailed, 460 
 
 if carried gratuitously, 435 
 
 if for hire, 436, 437 
 may set up jus tertii against bailor, only upon his (bailor's) authority, or if tho 
 
 bailment was made by a wrongdoer, or thief, or with intent to defraud, 461 . 
 liability of, for parting with goods bailed, 461 
 
 unless he has parted witlj them before the plaintiffs' title accrued, 461, 462 
 conversion of goods by, 326, 327 
 has no better title than his bailor, 327 
 liability of, for delivering to one person property bailed to him by two or more, 
 
 451, 452, 454, 455. ^ r j j 
 
 when liable in case of theft, 431, 432, 433, 436, 437 
 sale of goods by, with knowledge of real owner, 372 
 detei-mination of bailment by, 363 
 
 determines the bailment by parting with the goods bailed, 463 
 is entitled to authority from bailor before parting with goods bailed to a third 
 
 person, 453, 454 
 may sue for damage to or loss to goods in his possession, 464, 505 
 is not liable if he deliver property to his immediate bailor, although the pro- 
 perty bailed may belong to more than one person, 464 
 .may sue for loss, &c., of goods bailed, though he has only a special property 
 
 in them, 506, 919, 920. 
 may sue for conversion of goods, though he has never had possession of them, 370 
 may sue for conversion of chattels by wrongdoers, or in some cases by owner, 362 
 when goods in possession off pass to trustee on his bankruptcy, 356, 357 
 is not the true owner of goods within reputed ownership clause of Bankruptcy 
 
 Act, 351 
 cannot set up title to goods deposited in furtherance of fraud, 340 
 remedy for, by interpleader, &c., where goods, the title to which is doubtful, are 
 
 demanded from him, 327 
 power to compel rival claimants to property in his possession to interplead, 455, 
 
 456 
 declarations againstj for loss or damage to goods bailed, 456, 457 
 plea of not guilty, 457 
 remedy for, in equity, where deposit made in furtherance of fraud, 327 
 
 BAILIFF. See Landlokd — Shebifp. 
 
 is liable ior making an illegal distress, and has remedy over against the landlord, 
 546. 
 may justify distress in name cSf landlord, though he distrains in his own name, 
 523, 543 
 is liable for refusing to receive rent and expenses after making a distress, 542 
 
 BAILIFF OF COUNTY COTJET, 
 
 is liable to the same extent in the execution of writs as the sheriff, 664. See 
 
 Sheeipf. 
 duties of now transferred to registrar, 664 
 duty of, to satisfy the landlord's claim for rent, by distraining on goods seized 
 
 under execution, 666 
 cannot be sued without the clerk of the court being joined, and on proof of the 
 
 warrant is entitled to judgment, 668 
 not liable as trespasser by reason of any irregularity or informality of warrant 
 
 under which he acts, but is for any fecial damage from any irregularity in his- 
 
 mode of executing it, 668, 669, 670 
 protection of, by interpleader, where there are rival claimants to property seized, 
 
 669, 670 
 
 BAILMENT, 
 
 different kinds of, 425, et seq. 
 distinction between, and sale, 426, n. 
 
 BAILOR, ifee Bailee— ImuNCTioir, v. ^n , -i-j ^in ^n 
 
 may sue for damage caused by negligence to chattel bailed, 410, 411 
 when may sue for conversion of, or injury to, property bailed, 362, 363, 364. 
 may sue wrong-doer foB detention, &c., of, or injury to, goods bailed, 452, 453, 454 
 may sue bailee if he parts with the goods, 463 ,., „ ^ . 
 
 duty, of, to declare the value and nature of goods to which the Carriers Act 
 applies, 476 
 
 A A A a2 
 
1092 INDEX. 
 
 BAILOR — continued. u •! j 
 
 liability of, for not disclosing dangerous or very valuable nature of goods bailed, 
 
 17, 18, 19, 126, 427, 452, 472, 473, 859 . u • 
 
 cannot replevy goods, but must prove his title in action of trespass or for their 
 
 detention, 552 
 
 BAKER, 
 
 conviction of, for baking rolls on Sunday, 698 
 
 BALLOON, 
 
 ascent or descent of, when a nuisance, 167 
 
 BANK. See Public Officer. 
 
 assumption of name of, whether actionable, 857 
 
 BANKER, 
 
 negligence or neglect of duty by, 407 
 
 liability of, for loss of box left in his custody, 407, 430 
 
 refusal by, to cash his customer's draft, when a tort, 8 
 
 ■liable for paying forged cheque, 21 
 
 liable only to the person who deposits the money, although the right to it 
 
 belongs to several, 455 
 lien of, 445 
 liability of, for delivering to one property deposited with him by two or more, 
 
 452 
 
 BANKRUPT. See Bankbdpxcy — LiQuiDATioif — Trdstee in Bankruptcy. 
 title to property of, passes to trustee, 344, 845 
 
 but leaseholds or any onerous property may be disclaimed by trustee, 344, 345 
 contracts or dealings with, without notice of bankruptcy, are valid, 345, 346 
 transfer of property by, -when an act of bankruptcy, 346, 347 
 , petition of, for liquidation, is an act of bankruptcy, 347 
 execution levied on property of, when an act of bankruptcy, 346, 347, 348 
 goods in reputed ownership of, when they pass to trustee in bankruptcy or not, 
 
 349—359 
 goods in possession of, as trustee, do not pass to trustee in bankruptcy, 358, 359 
 goods in "apparent possession" of, within Bills of Sale Act, 359, 360 
 may sue for injuries to land in his own occupation, unless the trustees take the 
 
 lease, 928 
 remains liable for torts committed prior to or during the bankruptcy, unless 
 
 judgment has been given, 941, 942 
 arrest of,' in certain cases, 942 
 
 property of, fraudulently assigned before bankruptcy, infunction to restrain deal- 
 ings with, 1032. 
 peer, cannot sit or vote in House of Lords, 659, n. 
 
 BANKRUPTCY, fe Notice. 
 
 effect of, on propeedings in an action, 946 
 
 on action commenced by bankrupt, 969, 970 
 
 on power to distrain, 518, 519 
 malicious proceedings in, when actionable, 623, 624 
 evidence of adjudication of, or other proceedings in, 371, 371, n. 
 judges in, in the country, 641 
 
 BANK MANAGER. See Ba-nkeb. 
 
 BANKNOTE. /Sie Bill. 
 
 BARGE. 
 
 owner of, is a common carrier, 467 
 and liable as such, 471 
 
 BARRISTER. See Advocate. 
 
 not liable for negligence, unless malicious or fraudulent, 403, 406 
 
 BATHING. See Sea-shobe — Indecency. 
 indecent, is a public nuisance, 219 
 by-laws for the suppression of indecenf, 36, 37 
 right of, at common law, 37 
 
 BATHS, 
 
 negUgence in mamagement of, 186 
 
 BATTERY. -See Assault. 
 
INDEX. 1093 
 
 BAWDY HOUSE, 
 
 keeping, is a public nuiFance, 219 
 wliat is " keeping " of, 219, n. 
 
 BEACH. See Sba-shorb. 
 
 BEAES. See FEnai Naiuile. 
 
 BELLS, 
 
 ringing of, may be a nuisance, 217 
 
 BIGAMY, 
 
 committal of, is actionable, 33 
 
 BILL OF LADING, 
 title by, 342 
 
 BILL OF PEACE, 
 
 to ascertain rights where the persons asserting or contesting it are numerous, 169 
 -between lords of manors and tenants of manors, whether freeholders or c'onv- 
 
 holders, 159, 160 ^•' 
 
 does not lie to ascertain public rights, e.g., a public right of way, 160 
 
 BILL OF SALE, 
 
 title by, 332, n., 342, 343, 353 
 
 priority as between two holders of, 332, n. 
 
 necessity for registration of, 332, u., 353, n., 359 
 
 BILLS, 
 
 title to, 343 
 
 when paid off, 337 
 conversion of, 327, 328, 329 
 
 false assumption to accept by procuration is actionable, 864, 867 
 damages in action for conversion of, 377 
 
 BILLS OF SALE ACT, 
 
 when goods are in " apparent possession " of bankrupt within meaning of, 
 
 359, 360 
 goods in " the apparent possession " of the assignors within meaning of, 332, n. 
 
 BIRMINGHAM. See Smoke. 
 
 BISHOP. See Ecclesiastical Dilapidation .s. 
 
 liable for neglecting to perform the duties of his office, 16 
 injunction against, to prevent waste, 260 
 
 BOARD OF HEALTH, 
 
 must be sued in the name of their clerk if the statute so requires, 768 
 
 liabilities of, as surveyor of highway, 741 
 
 not liable personally for any injury committed in the execution of Public Health 
 
 Act, 741, 742 
 mandamus to, to make compensation, 1070 
 
 BOARD OF TRADE. See Poet— Sea-shoee. 
 
 inquiry by, in cases of collisions of ships causing death or personal injury, 410 
 
 BOATS. See Canal. 
 
 BOND. See Secueities. 
 
 obligee entitled to possession of, though money paid, 337 
 
 BOOKS. See Copteight— Pbinteb. 
 
 exportation or sale of, if protected by copyright, 41 
 
 BOUNDARY. See Fences. 
 
 BOUNDARY WALLS. See Fences. 
 property in, 285, 286, 287 
 
 BBAWLING. See Chueoh. 
 
 BREAD, 
 
 adulteration of, is a public nuisance, 219 
 
 BREW-HOUSE, 
 
 is a nuisance, 162 * 
 
1094 INDEX. 
 
 BEICK-EAETH, 
 
 unlimited claim of, in alieno so^, is bad,, 8 1 
 
 BRICK-KILN, 
 
 when a nuisance, 162, 164 
 illegality of, adjoining highway, 171 
 
 BRICKS. See Briok-eabth— Brick-kiln — Custom. 
 right of lessees to make or not, 233, -237 
 right of tenant for life with regard to, 236, 237 
 injunction against burning, 215 
 
 BRIDGE, 
 
 obligation to repair ratioM tenurce, 143 
 
 BROKERS. See BAitm. 
 
 negligence of, in purchase of goods, 854 
 lien of, 438, 442, 443, 444, 445, 449 
 
 BROOK. See River. 
 
 BUILDER. See Architect — Contractor. 
 negligence of, in erecting house, 402 
 
 BUILDING-. See House — NBeLioENOE — Support. 
 pulling down or dismantling, is waste, 231 
 fire in, caused by negligence, is waste, 232 
 right to support of land weighted with, 60, 61, 62. 
 
 rights of person who Ijas erected, on another's land without opposition, 156 
 ruinous, adjoining highway, is a public nuisance, 218 
 shoring up or removal of ruinous, in London, 194, 196, 199 
 
 BULL. See Animals. 
 
 BURIAL. See Churohtabd. 
 
 Acts of Parliament for regulating, 194 
 
 BUSHES, 
 
 property in, is in tenant, 285 
 
 BUSTS. ,See SouLPiUEK. 
 
 BY-LAWS, 
 
 under a statute must strictly follow the statute under which they ai'e made, 35, 37 
 imposing penalties for suppression of torts are cumulatiye upon remedy at common 
 
 law, 35, 38 
 as to indecent bathing, 36, 37 
 for the suppression of nuisances, 36, 201 
 for the regulation of markets, 38, n. 
 in restraint of trade when valid, 38 
 of municipal corporations, 35 — 37 
 
 upon whom binding, 36 
 by public commissioners, local boards, and public companies, 37, 38 
 all restraints imposed by, are illegal, unless under statutable authority, 37 
 of railway companies, must be hung up at every station or wharf, 703 
 may be partly valid,, partly not, 39 
 
 no powerto apprehend for breach of, unless given by statute, 38 
 Summary convictions under, 35 
 convictions for breaking, 702, 703 
 
 CABMAN, 
 
 is not a common carrier, 468 
 
 CALLS. See MAiTDAMUs. 
 
 CANAL. See Canal Company— Fixtures — Water. 
 injuries from negligent management of, 185, 186 
 injuries from negligent construction of works connected with, 205 
 right to soil of towing paths of, 284, 285 
 license to use boats upon, 101 
 right to use of pleasure boats upon, 69 
 right of riparian proprietor to use of water of, 69 
 as to mines under or adjacent to, 89, 90, 91, 92 
 
INDEX. 1095 
 
 CANAL COMPANY. See Canal— Common Caekiek— Water. 
 duty of, to afford equal facilities of carriage to all, 468, 469 
 are liable for penning hack polluted water, though they may be authorised by 
 
 statute to pen back the water so long as it is pui-e, 735 
 not liable for leakage of water, without negligence, 736 
 
 bound to use every precaution where highway crosses canal by a swing bridge, 736 
 duty of, to take all roasnnable precautions where canal crosses a highway, 185, 186 
 
 if canal is in possession of lessee, 186 
 when bound to fence off oanal from highway, 186 
 power to make "reasonable" conditions as to receiving and delivering animals or 
 
 goods, 480^484 
 special contract with, for carriage under the Canal Traffic Act, must be 
 signed, 482 
 
 and the signature faii-ly obtained, 510 
 surplus water of, used by another company, 123 
 summary proceedings against, for contravening the Canal Traffic Act, 504 
 
 CANON. See Ecolesiabtical Dilapidations. 
 
 CAPTAIN. See Mastek op Ship — Shipmastek. 
 
 CAIi:?ENTEE, 
 
 negligence of, in execution of work, 402 
 
 CAKRIAGE. See Coach. 
 
 injuries from unskilful or reckless management of, 1.9, 20, 25 
 
 CAKRIER. See Common Careier — ^Bailee — Railway Compant. 
 does not warrant the absolute safety of goods earned, 436, 437 
 
 unless a common carrier, 430 
 duty of, to use due care, whether paid for carriage or not, 917 
 does not warrant the safety of passengers carried, but engages to use due care, 
 
 417 
 negligence of, 382— 386. , c 
 
 of goods, though not a common carrier, how far liable for negligence or loss ot 
 
 the goods, 435 
 who to be plaintiffs in actions against, 504—506 
 
 when the consignor and when the consignee, 504, 505 
 - liability of, for negligence to servant, though his master pay the fare, 505, 506 
 who to be defendants in actions against, 506, 507 
 
 carrier or his servant, 506 
 
 CARRIERS ACT, 
 
 articles to which it applies, 474, 477, 478 
 
 only applies to carriers Jy Zand, 476 . , ^ ^ ,.,„ cca 
 
 does not apply where goods carried under a special contract, 479, 580 
 
 CASTS. See Sodlptuee. 
 
 CATTLE. ;See Animals— Sheep. 
 
 right of pasturage for, is a. profit d. prcwdje, 80 
 
 right to wash or water, on another s land, 80 
 
 right to water or wash, claimable by custom, 101 
 
 trespasses by, 265, 266, 291 
 
 straying on highway or turnpike road, 226, n. 
 
 right of passage along highway, but not to remain, 181 
 
 Sing fSfghway," hen distrainable as trespassing, 266, 267 
 
 iturS S 7rom gSt/a iaUway through gates at a level crossing 184, 185 
 injure to from filling down unguarded weUs and shafts, £c., 168, 169 
 pursuit of, an another's land. When justifiable, 264 
 iniuries from the escape of, though without negligence, 68, 69 
 njnr es to° ft'om eating poisonous clippings of boundary fence, 69 
 
 tt:n'i'pair of boundary or raihvay fences,^180, 181 
 trespass by driving, or striking, 318, 6W 
 
 bv dogs in pursuit ot, dl9 „„ifli loo 
 
 neeligence in delivery of, by railway company, 181 182 
 Uabilf 'y of agisters for negUgence in the care of, 434 
 
1096 • INDSX. 
 
 CATTTuE— continued. 
 
 negligence by sending small boys in charge of, 189 
 
 sale, or exposure for sale, or otherwise, of diseased, when unlawful, 3, 4, 23 
 
 damage caused by the escape of diseased, 312 
 
 injuries from cutting up diseased, 187 
 
 injuries from negligent management of, if diseased, 22, 23 
 
 importation of, from abroad, i, n. 
 
 impounded must be fed, 541 
 
 slaughter of, whether a nuisance, 163, n. 
 
 CATTLE-GATES, 
 right of, 109 
 
 CELLAR. See Area.- 
 
 injuries from negligently leaving flap-door of, unsecured, 20, 21 
 
 CERTIFICATE. See ABOHiTBCT—SuEVBroK— Costs. 
 of under-sheriff for costs, 1011, 1013, 1016 
 of probable cause for seizure of ship or goods under Customs Acts, 379 
 
 CERTIFICATED CONVEYANCER, 
 lien of, 447 
 
 CERTIORARI, 
 
 lies to remove proceedings of justices and all inferior courts who are acting with- 
 out jurisdiction, or are disqualified to adjudicate by interest, although the writ 
 
 is expressly taken away by statute, 713, 714, 715 
 to remove and quash proceedings of inferior court acting without jurisdiction, or 
 to remove proceedings in which, the Crown is interested, 642 
 
 although the writ is expressly taken away by statute, 642 
 right of Crown to remove cases Ijy, although the writ is expressly taken away by 
 ^ statute, 713, 715 
 
 lies to remove judicial, not ministerial acts, 715 
 
 to quash convictions, orders, &c., of justices, made without jurisdiction, 687, 1048, 
 1049 
 
 although right of appeal exists, 711 
 
 or writ expressly taken away by statute, 1049 
 to remove inquisition before sheriff in compensation case, 758, 759, 760 
 to remove actions of replevin from county to superior court, 553 
 to remove causes from county court, 1049, 1050 
 
 although power of appeal exists, 1051 
 to remove cause where inferior court has jurisdiction, when to be applied for, 
 1047, 1048 
 
 where it has not, may be applied for after judgment and execution, 1048 
 will not be granted where no objection to the jurisdiction was made in the court 
 below, 1048 
 
 unless the want of jurisdiction appears on the face of the proceedings, 1048 
 limitation of time for issuing, 1048, 1049 
 ground on which writ may be applied for, 1049 
 when grantable debiio juatitice, 1049, 1050 
 application for, may be made on affidavits, 716, 717 
 amendment of orders, &c., of justices on return to, 717, 718 
 proceedings on application for, affidavits, notice, &c., 1051, 1052 
 effect of, in staying proceedings in court below, 1052 
 quashing of, where it has improvidently issued, &c., procedendo, 1052 
 costs on, 1022 
 is available in equity, 642 
 
 CESSPOOL. See Sewer. 
 is a nuisance, 162 
 
 CESTUI QUE T;rUST. See Parties to AaiiONS— Trustee. 
 cannot sue for injuries to land, 70 
 ^ not a tenant at will to his trustee within the Statute of Limitations, 273, 274 
 
 CHANCEL, 
 
 title to, is in rector, though possession is in incumbent, 278, 279 
 obligation of rector to repair, 238, 239, 240. 
 
 CHAR,ACTER, 
 
 evidence of, when admissible in actions for a malicious prosecution, 633 
 
 CHARTS. SeeUi.-pB. 
 
INDEX. 1097 
 
 CHASTITY, ' ' 
 
 reflection upon, when actionable, 775, 79S, 802 
 
 CHATTELS 
 
 ,lost, are property of finder against every one but real owner, 320 
 conversion of, 320, et seq. See Conversion.- _ 
 on land of another, when may be retaken, 264, 265, 266 
 sale of, without authority, is actionable, 34 
 
 CHATTELS REAL. See Leases. 
 
 CHEQUE. &e Banker— Bills. 
 
 CHILDREN. See Infant — Negligence. 
 
 cruelty to, may be cruelty to wife, 892, 893 
 
 father entitled to custody of, at common law, 893, 894, 895 
 
 subject, however, to the controlling power of the Court of Chancery in case 
 
 of his misconduct, 895, 896, 897, 898 
 • and of the Divorce Court, in certain case?, 891, 892 
 order by Divorce Court respecting custody of,, 891 — 893 
 guardians of, are entitled to custody of, 894, 897 
 right of access to, by mother, 897, 898 
 
 custody of, mother entitled to, on death, or transportation of father, 898 
 obligation of parents to provide for, 898 
 
 injuries to, or seduction of, causing loss of service, is actionable by parent, 907 
 abduction of, a misdemeanour, 915 J-^^^Ji-L,^^ -^ X^ 
 
 CHIMNEY, 
 
 easement of using, 157 
 
 CHOSES IN ACTION 
 
 are not "goods or chattels" within reputed ownership clause of Bankruptcy Act, 
 
 350 ' 
 
 notice of assignment of, 352, n. 
 
 CHURCH. See Pew— Sexton. 
 
 title to, is in rector, but possession in incumbent, 278, 279 
 
 title to pews in, 287 
 
 private chapel annexed to, may be the property of a private person, 279, 280 
 
 right to ring bells of, 280, 280, n. 
 
 brawling in, by persons in holy orders, 1041, 1041, n. 
 
 disturbance in, a misdemeanour, 582 
 
 CHURCH RATE, 
 
 all compulsory proceedings for inforcement of, abolished, 700, n. 
 
 CHURCHWARDEN, 
 
 right of access of, to church, 280 
 
 may not remove bones from churchyard without faculty, 279 
 
 or remove ornaments illegally in church, without sanction of ordinary, 280 
 right of, to communion plate, in case of its conversion by rector, 280 
 cannot dispossess person in possession of pew, &c., without notice, 287 
 election of, may be tested by mandamus, 1065 
 mandamus to, to allow inspection of parish accounts, 1072 
 
 CHURCHYARD. See Tombstones. 
 
 freehold of, is in rector, though closed under order in council, but possession in 
 
 incumbent, 7, 278, 279 
 if taken compulsorily under an Act of Parliament, 279 
 removal of bones, &c., from, without faculty, is unlavfful, 279 
 
 CHYMIST, 
 
 negligence of, in compounding hair-wash, 403 
 
 CISTERN, . ^ , 
 
 injuries from bursting or leakage of, to lower stones of house, 69 
 
 CLERGYMAN. See Incumbent — Rector — ^Libbl — Slander. 
 liable for refusing to perform the duties of his office, 16 
 cannot be arrested while performing divine service, 658 
 
 CLERK. See County Court— Court of Beoord. 
 
1098 INDEX. 
 
 CLERK OF MAGISTRATES, 
 has not a freekold office, 1063 
 duty of, to draw up minute of conviction or order, 703 
 
 CLERK OF POOR LAW GUARDIANS, 
 has not a freehold office, 1063 
 
 CLERK OP THE PEACE, 
 
 duties annexed to office of, 1062, n. 
 
 may be dismissed for misdemeaning himself in his office, 689 
 
 report hy, to quarter sessions, is a privileged communication, 782, 783 
 
 CLIENT. See Plaintiff. 
 
 CLOAK-ROOM. See Kaiiway Company. 
 
 CLOCKMAKER, 
 
 negligence of, in execution of work, 402, 403 
 
 CLOTHES, 
 
 right to.hang and dry, on another's land, 80 
 
 COACH. See Common Careieb. 
 
 accidents to, from overturning, &c., 382, 385 
 
 negligence in management of, or carriages, 386 — 389 
 
 injuries from negligently or recklessly driving, 416 
 
 overturning, is primd facie evidence of negligence, 382 
 
 hirer or borrower of, when liable for negligence in driving, 386 — 388 
 
 remedy for passenger by, in cases of collision, when both drivers are in fault, 388, 
 
 389 
 injuries to hired, when chargeable to owner, when to hirer, 428 
 proprietor of, is a common carrier, 467 
 lien of owner of, on passengers' luggage, 491, 492 
 
 COACHMAKER, 
 lien of, 441, 442 
 
 COALS. See Cdstom— Highway — Minerals — ^Mines. 
 
 grant of, includes right to go on land and erect engines, &c., 87 
 
 grant of all, passes the fee, 100 
 
 reservation of, in a conveyance of landj 84 
 
 license to get and carry away, 99, 100 
 
 right to make way for the passage of, 88 
 
 carriage of, along highway, when illegal, 224 
 
 COFFEE HOUSE, 
 
 keeper of, not an innkeeper, 495 
 
 COLLEGE, 
 
 mandamus to Warden of, 1067 
 
 COLLIERY, 
 
 statutory regulations for management, ventilation, &c., of, 398, 398, n., 399 
 
 COLLISION. See Coaoh— Ships, 
 
 COLONY. See Governoe of Colony. 
 
 COMMISSIONERS. JSee Mandamus. 
 
 liability of, for negligence or misconduct in carrying out powers given by statute 
 738, 933, 934 . • 
 
 unless they entrust the performance of the work to independent contractors, 739 
 liability of, for the creation of unnecessary nuisances in cariying out woi'ks, 739 740 
 in occupation of works for which they receive toU, &c., are bound to maintaih 
 the property, so as not to be dangerous to those who use it, 740 
 unless they have demised the works to a lessee, or the duty of repairing is not 
 absolute, &c., 740 
 right of to indemnify thereselves for expanses incurred in defending proceedings 
 against them, 742, 743 
 except in case of wilful misconduct, gross mistakfe, &c., 743 
 cannot create a nuisance by a system of drainage, 745 
 personal liability of, for negligently managing docks, wharfs, &c., 186 
 action against, to be brought, if so directed, against their public officer or clerk 
 933, 934 ' 
 
INDEX. 1099 
 
 COMMISSIONERS— con imuerf. 
 
 liability of for the natural consequences of works executed by contract and handed 
 
 over CO tnem, 414 
 mandamus to, to levy rate to discharge judgment debt, 1082 1083 
 prohibition to, 1038 = = > i 
 
 injunction against, 217 
 of Treasury, Customs, or Excise. See Pdbuc Oitioees. 
 
 COMMISSIONERS OF NAVIGATION. See Conservators-Statute-Wateu 
 are not entitled to soil of towing paths and banks of rivers, 303 
 
 COMMISSIONERS OF PUBLIC "WORKS, 
 liable for arbitrary or negligent conduct, 30 
 
 COMMISSIONERS OF SEWERS, 
 repair of sea-wall by, 229 
 
 COMMISSIONERS OF TREASURY. See Port— Public OmoERS, 
 
 COMMITMENT. See Justices. 
 
 COMMON. See Enclosure Act — PasttJragb. 
 rights of, 99 
 appendant, 105 
 appurtenant, 104, 105 
 of shack, 106 
 pur cause de vicinage, 106 
 of turbary, 106 
 
 of estovers, or right to cut wood, &o., 107 
 in gross, 108, 109 
 
 right of, claimable by prescription, 113 
 right of, arising from long user, 114 
 interruption in the enjoyment of, 129 
 enjoyment; of, to confer right must be without interruption, but need not be 
 
 without intermission, 129, 130, 131, 133 
 ri^ht of, valid after thirty years' user under Prescription Act, 116 
 
 indefeasible after sixty years' enjoyment, 116 
 right of, an exception to rule that a profit A prendre is not claimable by custom 
 103 J : 
 
 suspension of, by non-user, 133 
 destruction of right of, by unity of ownership, 133, 134, 139 
 
 except in case of copyholds, 140 
 right of, over land of which lord is only tenant for life, 120, 121 
 inconsistent rights of, between commoner and lord, 110 
 right of lord of manor to enclose, 104 
 ascertainment of right of, by bill of peace, 159 
 injury to, is actionable without special damage, 155 
 taking manure from, is actionable, 144 
 interruption to right of, by erection of rails, 130 
 obstruction to right of, may be abated, 144 
 obstruction of, by fences, how remedied, 105, 110 
 disturbance of, by railway company, 105 
 obstructions to, by a house, gate, o'r fence, may be pulled down, 196 
 
 unless the house is in occupation of some one, 269 
 hares or rabbits on, may he destroyed, unless coming from lord's land, 145, 196, 
 
 267 
 trespass by cattle straying from, 266 
 
 cattle trespassing on, may be distrained by either commoner or lord, 526, 547 
 ' right to distrain beast wrongfully on, 144 
 
 remedy for surcharge of, by commoners, 144, 145 
 surcharge of, may be remedied by distress, 547 
 surcharge of, by lord of manor, 110, 145 
 
 hy commoners, 106 
 declarations in actions for obstructing, 148 
 
 COMMON CARRIER. See Caerieb— Cabeiers Act— Railway Company- 
 Steam Boat Company. 
 who is, 467 
 instances of, railway companies, stage coaches or,waggons, lightermen, hoymon, 
 barge-owners, canal boatmen, shipowners, jobmaster, cabmen, &o., 467, 468 
 obligation on, to carry goods for all persons, ready to pay him, 466, 466 
 
 except petroleum, nitro-glycerine, and other " specially dangerous " ijoods, 466 
 of passenger, not obliged to carry goods, and vice versd, 466 
 
1100 INDEX- 
 
 COMMON CAREIER— coniinacd 
 
 may carry goods that he does not profess to carry, as an ordinary bailee only, 
 
 466, 467 
 of passengers, must also carry their personal luggage, 467, 472, 473 
 liability nf, for loss of goods, or animals, unless by the act of God, or the King's 
 enemies, 470, 471 
 
 although the loss is occasioned by the misconduct of a stranger, 471, 472 
 cannot rid himself of the public duties imposed upon him, by stipulating that all 
 
 merchandise (if he carries merchandise), shall be at the risk of consignor, or 
 
 that personal luggage of passengers (if he carries passengers) shall be at the 
 
 risk of owner, 473 
 statutory protection of, in respectof the carriage of gold and silver, title deeds, ' 
 and other specially valuable articles, unless due notice of their nature bo 
 declared, and an increased charge paid, 473 — 479 
 
 requisites of notice to be given by carrier, 474, 475 
 liability of, where goods carried under a special contract, 479, 480, 481, 482 
 liability of, for acts of persons employed in doing his work, though not, strictly 
 
 speakint', his servants, 480 
 liability o^ for negligence, although goods carried under a special contract, 482, 
 
 483, 484 
 commencement and duration of liability of, 484 
 when liable as warehouseman only, 485, 486 
 delivery of goods by, at place of destination, 485, 486 
 
 if consignee refuse to receive them, 489, 490 
 of passengers only not liable (except as gratuitous bailee) for loss of luggage, 472 
 may sue consignor of dangerous goods for damage caused by neglec,t to give 
 
 notice of their nature, 472 
 is released from liability if the misconduct or negligence of consignor has con- 
 duced to the loss or damage, 471, 473 
 acceptance of passengers or goods by, to be conveyed beyond.the limit to which 
 
 he himself carries, 486, 487 
 not liable for goods not actually or constructively delivered into his charge, 509, 
 510 - 
 
 but delivery to his servant or agent is a delivery to him, 510 
 not liable for goods, which the passenger carries in his own hands, 509 
 not liable if goods placed in his cart, &c., without his knowledge, 509 
 
 or delivered to his servant on other terms than those on which he was autho- 
 rized to receive them, 509 
 when not liable for loss of valuable or fragile articles of the nature of which he 
 
 has no notice, 19 ' . . 
 
 liability of, for negligence or theft of servants, although consignor has omitted 
 
 to declare value of article carried, 475, 479, 512 
 lien of, 490—492 
 action against, for not carrying safely is an action of tort for negligence, and not 
 
 in contract, 1015 
 declaration against, for refusing to carry, 507 
 pleas in actions against, 508 
 when he may set up jas tertii in actions against him for loss of, or damage to 
 
 goods or not, 505, 508, 510, 511 
 evidence in actions against, for the plaintiff, 509—511 
 evidence of negligence of, from delivery of short weight, 471 - 
 damages recoverable in actions against, 611 — 513 
 
 limited by statute in certain cases if value not declared, 511 
 
 delay in delivery, 512, 513 
 
 COMMONEK See Gommoit. 
 
 COMPANY. See Directors — Talsb Rbpeesshtation — Joint-Stock Compahy — 
 
 LlClTIIDATION — MaKDAMIIS — EeQISTER — SHARES — STATUTORY CoMPEHSATION. 
 
 liability of, for the wrongful acts of its directors, managers, &6., 932, 933 
 prospectus of, to contain certain particulars or to be deemed fraudulent, 842 
 where it carries on its business within meaning of County Court Acts, 948 
 acting under Lands Clauses Act, compellable to take the whole of a house, build- 
 ing, &c., if they take part, 762 
 land severed and not required by (except in a town), vests in proprietor of land 
 
 severed, whether owner in fee or lessee for a long terni, 761, 762 
 no duty on, to communicate refusal to register transfer to transferor, 1086 
 liability of, to the innocent transferee of forged shares, 986, 1086 
 in occupation of premises after winding-up order may be distrained on, 531 
 power of tendering amends by, 765 
 
 mandamus to, to register shareholder or probate of will, 1081, 1082 
 mandamus to, to admit secretary or clerk, 1066 
 
IKDEX. 1101 
 
 OOMFANY— continued. 
 
 security for costs from, 1026 i 
 
 injunctioa to restraia action for calls by, on the ground of false representation or 
 fraud, 841 
 
 COMPENSATION. See Statute — Statutory Compensation. 
 offer of, how far an admission of liability, 213 
 for mines, under or within a certain distance of railways or canals, 89, 90, 91 
 
 COMPOSITION. See Liquidation. 
 
 CONSENT. See Jtjkisdiction. 
 
 CONSERVATOKS, 
 
 of river, rights and liabilities of, 176, 177 
 
 CONSIGNOK. 5eeBAiL0B. 
 
 CONSOLS. -Sf«e Stock. 
 
 CONSPIRACY, 
 
 action lies for, if malicious, and damage ensues, 611 — 613 
 
 to molest an actor in his profession, 611, 612 
 
 to institute legal proceedings qr obtain conviction of plaintiff, 612, 613 
 
 to obtain property by forgery, 33 
 
 to convict a man of felony, 33 
 
 damages in actions for, 634 
 
 indictment for, 611 
 
 CONSTABLE. -SeeAuREST. 
 
 may take person guilty of assault in his presence into custody, 572 
 is not bound to turn intruder out of a house, but he may do so, 572 
 cannot arrest without warrant, except for felony, or reasonable suspicion of, 576, 
 577 
 
 what is reasonable suspicion, 577 
 not liable for arresting a man on reasonable suspicion of felony, 603 
 not liable for arresting a person by order of another, 577 
 liability of, if assisting another constable in a wrongful arrest, 577 
 may arrest person found committing malicious injury to property, 579 
 
 or person committing a breach of the peace in his presence, 580, 581 
 
 or person hindering him from so arresting, 580 
 may arrest persons continuously ringing at a door-bell, or collecting crowd at a 
 
 person's house, 581 
 powers of, in the Metropolis, 583, 584 
 
 is not liable for seizing goods on a charge that they were stolen, 558 
 is liable for handcuSBng unconvicted prisoners, 571 
 distinction between arrest by, and by private person, for felony, 578 
 statutory protection of, from vexatious actions, 586 — 594 ^ 
 
 protection of, where they intend to arrest, &o., in pursuance of ^n act of parlia- 
 ment, 588—591 
 limitation of time for bringing actions against, 729 
 assault on, or on revenue officers, punishable, 580 
 protection of, where he has acted under a warrant, and gives a copy of it on 
 
 demand, 731, 732 
 protection of, from liability to action while acting under justice's warrant, 720— 
 722 
 
 80 long as he does not exceed his authority, e. g., by handcuffing unconvicted 
 prisoner, searching wrong house, &c., 721, 722 
 venue local in actions against, 597 ^ 
 
 plea of not guilty by statute in actions against, /30 
 evidence in actions against, 731, 732 
 costs in actions against, 1019, 1020 
 
 CONTAGION. See Cattle— Infection. 
 
 CONTAGIOUS DISEASES (ANIMALS) ACT, 4 
 
 CONTEMPT 01' COURT, 
 
 what is, and committal for, 640 
 
 before magistrates, 689 
 
 in not answering a bill m Chancery, 6bb 
 
 extortion by sheriff is, 663, 664 , 
 
 upraonffuiltvof, must be heard m his defence, 714 
 
 remedy for imprisonment for, by application to Court of Queen s Bench, 714 
 
 ^]^,fc,,^-^1.-''£^C'->-T--t-»-.^^ ^T^».-^*i-n^ y V^lJ 
 
1 102 INDEX. 
 
 CONTRACT, ' 
 
 torts founded on, 14, 17, 18 
 
 torts founded on, how far parlies to stclions are affected thereby, 17, 18, 916, 917. 
 
 entered into under false representation or fraud is actionable, though no warranty 
 
 given, 867, 868 
 made under a false representation should be repudiated on disoorery of the fraud, 
 
 835 
 inducing another to breai, is a tort, 8, 28, 906, 907 
 
 damages recOTerable for, 914, 915 
 costs in actions of tort founded on, effect of County Court Acts on, 1014, 1015 
 
 CONTEACTOK. See Master— Notiob of Action. „ 
 
 liability of, for negligence in constructing works, &o., 205, 413, 414 
 although the persons employing him may be exempt from personal liability 
 by statute, 742 ' 
 
 CONTBIBITTION, 
 
 no right of, as between wrong:doers, 1000 
 
 CONTRIBUTORY NEGLIGENCE, 400—402, 422 
 
 by consignor of goods, by defective packing or otherwise, 471, 473 
 by guest staying at a common inn, 499, 501 
 
 CONVERSION. See Title. 
 
 » of chattels, what is, 320 ; see Chattels. 
 
 mere removal of, without any olaiuii, is not, 320 
 
 removal of, for use of defendant or third person, is, 320, 321 
 refusal to deliver goods is, 321 
 delivery to third person contrary to orders is, 321 
 k misdelivery by mistake is not, 321 
 sale of goods before stipulated time is, 321 
 
 leaving goods with third person, .whereby a lien is created, is, 321 
 re-selling goods, sold ou credit, before time for payment, is, 321 
 wrongful distress is, 321 
 
 obtaining goods by abuse of legal process is, 321 
 by sheriff in selling more goods than necessary, 321 — 322 
 
 or in selling goods in possession of bailee or pawnee, 322 
 mere negligent dealing with goods is not, 322 
 wrongful destruction or damage to goods is, 322, 323 
 of fixtures, 323 
 
 of goods by purchasers without title, 323 
 when demand and refusal is necessary to prove, 323 
 
 what a sufficient demand and refusal, 323 — 325 
 f of goods,~not in possession, or under control, of persons from wbom they are 
 
 demanded, 324—325 
 of goods left on premises without consent of occupier, 325 
 of goods found, 325 
 of goods by pmblic ofBeers, &o., 325, 326 
 
 by servants, 325, 326 
 
 by bailees, 326, 327 
 of stolen goods, 338—339 
 
 of goods, where the property in them has passed, 339, 340 ^ 
 
 of goods obtained by fraud, 340, 341 
 of goods in hands of bailees, 341, 342 
 of goods by railway companies, 327 
 of bills and notes, 327, 328, 329 
 
 by one partner, joint tenant or tenant in common, 329 — 331 
 of trust property, 331, 337 
 by persons claiming a lien, 331, 332 
 of policy of assurance, 337 
 of property of bankrupts, 346 
 by owner as against bailee, 362 
 of timber or fixtures, 362, 372 
 by sherifis, 371 
 of goo^s in the possession of children, 362 
 
 or bailees or hirers, 362, 363, 364 
 of goods that have been distrained, 363 
 of goods in possession of servants, 363, 364 
 by executor, de son tort, 365 
 by married women, 365, 366 
 "of articles pawned, 365 
 of cargo of ship, 365 
 
INDEX. 1103 
 
 COWV^T^SION— continued. 
 
 distinction between and trespass, 366 
 
 of soil by can-ying it away, 367 
 
 demand and refvisal does not amount to, but is evidence of only, 367 
 
 liability of corporation for, 932 
 
 liability of infant for, 938 
 
 remedy for, by recaption or action, 361, 362 
 
 remedy for, by redelivery of chattels converted, by order of Court or a Judge 366 
 
 action for, or for money had and received at plaintiff's option, if the goods t'aten 
 
 have been sold, 361 . -r > 5 
 
 ■who to be plaintiffs in actions for, 362 
 
 joint tenants or tenants in common, 364 
 who to be defendants in actions for, 364 — 866 
 
 joint tort feasors, 365 
 declaration for, 366 
 pleas in actions for — • 
 
 not guilty, effect of, 367, 368 
 
 not possessed effeet-of, 368 
 
 of justification, 369 
 evidence in actions for, 369 — 373 
 
 for the plaintiff, 369—371 
 
 by admission of defendant, 371 
 
 for the defendant, 372, 373 
 damages in actions for, 373 — 379. See Damages. 
 effect of judgment for, in altering the property, if the judgment has been 
 
 satisfied, 969 , 
 
 CONVICTION. See Summary Conviction. 
 
 COPAECENEES. See Joint Tenants. 
 
 should join in action for injury to reversion, 290 
 possession of, effect of, under statute of limitations, 275 
 
 COPYHOLD. See Common— Custom 
 
 right to support of surface allotted under Enclosure Act, 62, n. 
 
 COPYHOLDEE, 
 
 may sue for injuries to trees, 290 
 
 action by, against his lord for refusing to hold a Court for his admission, 16 
 
 -waste by, when a forfeiture, 240, 241 
 
 mandamus to admit, or to allow him to inspect court rolls, 1066 
 
 COPYEIGHT, 41—47. See Books. 
 
 in lectures or dramatic or musical compositions, 43, 44 
 in maps, charts, guide books, or directories, 42 
 in books, containing prints, &c., in illustration of the letterpress, 46 
 in prints or engravings, 46, 47 
 in paintings, drawings, and photographs, 47 
 in histories, dictionaries, or articles in magazines, 41, 41, n. 
 in dramatized novels, 43, 44 
 in combination of music with words, 44 
 in sculpture, 45 
 
 in useful, or ornamental designs, 45, 46 
 colonial or international, 41, n. ' 
 aliens, when entitled to, 41 
 
 none in works founded on fraud, or subversive of morality, 42 
 none in the title of a periodical publication, 42 
 may be obtained in certain porticjps only of a book or drama, 42, 44 
 in articles published in newspapers, 42, 43 
 
 registration of, a necessary precedent to action for infringement of, 47 
 assignment of, 43, n., 44 
 rights of assignees, of, 47 
 rights of assignors of, 44, n. 
 action for breach of, when to be commenced, 41 
 of design, action for infringement of in county court, 949 
 interrogatories in actions for breach of, 41, n. 
 injunction against infringement of in equity, 1031, 1032 
 at common law, 1036, 1037 
 
 CORNICE, 
 
 overhanging is a nuisance, 161, 162, 286, n. 
 
 COENWALL. See Stannaries— Tin. 
 
1104 INDEX. 
 
 COEONER, 
 
 not liable for acts done in course of judicial duty, 636 , 
 
 has power to exclude public from inquest, 636 
 and is not liable, therefore, for expelling a person from the room where inquest 
 is held, 636 
 statements of, at inquest kow far privileged, 808 
 prohibition to, 1038 
 
 CORPOEATION. See Company — Municipal Coeporation. 
 liability for, in trespass for, seizing goods, 930 
 
 for wrongful distress, 930 
 
 for assault or false imprisonment, 596, 597, 931, 934 
 
 for negligence in the construction or managetaent of machinery, 931 
 
 for negligence or wrongful acts of servants, 736, 930, 931, 932 
 
 for malicious prosecution or libel, 627, 930, 931 
 
 for conversion or detention of property, 932 
 
 for libel published by its direction, 811 
 
 for negligence in management of baths and wash-houses, 186 
 foreign, is not liable for torts, unless committed in this country, 830, 831 
 ecclesiastical, or eleemosynary, recovery of land by, under Statute of Limitations, 
 
 276 
 mandamus to. See Mandamus. 
 indictment against, 220 
 injunction against, 217 
 
 COSTS, 
 
 causing a person to incur, is a tort, 6 
 
 at common law are damages, but are now given by statute, 1006 
 
 to a plaintiff on demurrer on verdict, 1006 
 
 to a defendant, where the plaintiff, if successful, would have been entitled to them, 
 
 1006, 1007 
 to one of several defendants acquitted, or against whom a nolle prosequi is entered, 
 
 1007 
 of several defendants defending jointly or separately, 1024 
 on pleas jiwis darrein continuance, 1007, 1008 
 on stay of proceedings, 1008. 
 
 on arrest of judgment, or judginent non obstante veredicto, 1008 
 where case dismissed on ground of want of jurisdiction, 1008, 1009 
 where jury are discharged, and plaintiff discontinues, 1024 
 if juror withdrawn, 1009 
 in actions of detinue, 1011, n. 
 
 of libel and slander, 1009—1011, 1014 
 
 against executors, 1020 . . 
 
 by Crown for duties or penalties, 1020 
 
 on judgments, 1020, 1021 
 on new trials, 1021 
 
 on appeals from inferior to superior court or to Exchequer Chamber, 1021 
 on certiorari or prohibition, 1022, 1025 
 on indictments for libel or slander, 1022 
 or writ of mandamus- or injunction, 1022, 1027 
 
 under Railway and Canal Traffic Act, 1022 
 double or treble not now given, 1022, 1023 
 in compensation cases, 1023 
 general, of cause, who entitled to, 1025 
 on, or of, reference, 1016, 1017 
 in actions of trespass, after notice, 1018, 1019 
 
 against justices or constables, and others intending to act -in execution of 
 statutory powers, 1019, 1020 
 where plaintiff recovers less than 300i. in a case of collision between ships, or 
 
 action of tort in respect to the carriage of goods in ships in a superior court, 
 
 953, 954 
 of several counts founded on same cause of action, 957 
 of several pleas founded on same ground of defence, 959 
 of action up to plea olpuis darrein continuance, 961 
 
 after plea of payment into Court, 961 
 of proceedings under Railway and Canal Traffic Act, 514 
 of proceedings to compel County Court Judge to perform his duties, 643 
 in ejectment, 1006, n. 
 in prohibition, 1046, n. 
 on mandamus, 1075, 1078 
 power of justices to give, 720 
 under Vagrant Acts, 720, n. 
 
LNDEX. 1105 
 
 COST&-~c<mtirmed. 
 
 on appeals from justices, 720, n. 
 
 of prosecution for uon-repair of highway, 720, n. 
 when certificate necessary to entitle plaintiff to, 1011—1013 
 
 that action was brought to try a right, 1011, 1012, 1015, 1016 
 within what time to be granted, 1012. 1013 
 
 that action was fit to be brought in the superior Court, 1013—1016 
 
 that trespass or giieyanoe was wilful and malicious, 1017-1019 
 
 ot approval of action in actions against constables and others intending to act 
 under statutory powers, 1019, 1020 
 effect of County Court Acts on, 1013—1016 
 
 in actions of tort founded on contract, 1014 
 
 in case of payment into Court, 1014, 1015 
 
 where cause referred, 1015 
 taxation of, 1023, 1024 
 
 needless expense not to be allowed, 1024 
 of particular issues, or abortive issues, 1024, 1025, 1025, n 
 security for, 1025, 1026. 
 in County Court, 1026 
 of prosecutions, 1027 
 security for, in all actions of tort, 555. 
 
 COUNTS. See Deolabation— Costs. 
 
 COUNTY COURT. See Bailiff— County Court Judge. 
 actions in, in what Court to be brought, 947, 918 
 jurisdiction of, to what actions, and claims to what amount it extends, 948, 
 
 949, 1041—1045 
 jurisdiction of, depends upon the substance of the action, not its form, 1042, 1043 
 
 copyright of design, 949 
 
 friendly societies, 949 
 
 where title to land, &o., is in question, 949—952 
 
 recovery of possession of small tenements, 951, 952 
 
 in equity, 952, 953 
 
 in Admiralty cases, 953, 954 
 
 by consent, or without objection by parties to suit, 954, 955 
 
 where plaintiff abandons part of his claim' so as to bring it to the amount to 
 which the jurisdiction extends, 1043, 1051 
 
 in actions of replevin, although title to land comes in question, 563 
 
 where action in superior Court has been brought for same cause, 964 
 appeal from, in actions of replevin, 558, 554 
 
 actions brought in superior Court of law or equity may be remitted or trans- 
 ferred to, for trial, 948, 952 , 
 judgment in, is a bar to another action for same cause in another Court, 966 
 proof of proceedings in, 678 
 co^ts in, 1026 
 cannot give costs where case dismissed for want of jurisdiction, 1008, 1009 
 
 unless expressly authorised by statute, 1026 
 prohibition to, 950, 1037, 1041—1045, 1046, n. 
 certiorari to remove causes from, 1049, 1050 
 appeal from, 1050, 1051 
 mandamus to, 1056 
 costs on appeal from, 1021 
 clerk of, how far liable for seizures made under irregular or informal warrant of 
 
 execution, 668, 669 
 
 COUNTY COURT JUDGE. See Judges. 
 
 how far liable for acts done Without jurisdiction, 639, 640 
 
 must inquire to see if a question of title is really involved, 639 
 
 may commit for contempt, 640 
 
 power of, to imprison, 641 
 
 forms of commitment by, 640, 641 
 
 are judges in ba;nkruptcy in the country, 641 
 
 how compellable to act, 643 
 
 are entitled to notice of action, 667 
 
 actions against, must bo brought in adjoining district, 667 
 
 COURT. See Court of Record. 
 
 refusal to obey decree of, is a tort, 27 
 
 COURT OF ADMIRALTY, 
 
 jurisdiction of, in cases of collision, causing death, 892, 397 
 
 B B B B 
 
1106 INDEX. 
 
 COURT or ADMIRALTY— cojiijjwct?. 
 
 jurisdiction of, In suits for limitation of liability, 395 
 in eases of eollision, 395, 396 
 
 in oases of negligent navigation, stowage, &Cy 396, 397 ; 
 over collisions between ships caused by negligence,. 409, 410, 
 and over any claim for damage done by aBhip, 409, 410 
 proceedings in, usually in rem, 410 
 but are no bar to action at law for damages, 392, 410 
 
 COURT OP BANKRUPTCY. See Bankbuptoy— Messenger. 
 
 COURT BARON, 
 
 steward of, is a judicial officer, 641 
 prohibition to, 1037 
 
 COURT OF CHANCERY. See Injunction. 
 
 jurisdiction of, to order delivery up of goods unlawfully detained, 463 
 to award damages for infringement of patent, 52 
 
 COURT OF JUSTICE. See Couex of Recced. 
 
 COURT MARTIAIj. See Akkbst— Militabt Oemoek— Naval Oeficee. 
 officers may be tried by, 29, 30 ^?-iW{ ^ /-"-'•''^^ ' 
 proceedings of, can only be interfered with by Court of Queen's Bench to protect 
 
 the civil lights of a person, iidt his military status, 643 
 no action lies for malicious proceedings before, by inferior agaiflst superior 
 
 officer, 621 
 prohibition to, 1037 
 
 COURT OF RECORD, 
 who are Judges of, 641 
 power of, to commit for contempt, 640 
 
 Judges of, have power to commit by word of month, and without warrant, 576 
 liability of clerk of, for neglect of duty, 644 
 
 COVERTURE. Sie Pbesoeiption Act. 
 
 effect of,- under Statute of Limitations, 276 
 
 COW-GRASSES, 
 ' right of, 109 
 
 CRICKET, 
 
 injuries to persons from others playing at, 401 
 
 CROWD, 
 
 collection of, wlien a public nuisance, 167, 218 
 
 CROWN. See Costs— Palace — Extent. 
 
 grants by, in derogation of forestal rights, 102 
 
 ^CiyjELTY. See Husband— Wife. 
 
 CURSE, 
 
 penalty for, 698 ' 
 
 CUSTOM, /-«^ ^ fU-^t^^^^^JiA^t-'y^ 
 what it is, 101 - 
 
 must be reasonable, and have existed from time immemorial, 101 
 to demand a licence to fish, 101 
 
 to use water from a spring or well, or to wash cattle, 101 
 to erect booths, &c,, on waste of manor, 102 
 to resort to village greens, &c., for recreation, 102 
 to tate sand and gravel from sea-shore, 102 
 to fish in another's pond, 102 
 to take estovers, 102, 107 
 right of common claimable by, 103 
 to search for tin in Cornwall, 109 
 to pass over sea-shore to bathe, 112 
 to pass over arable land when crops are standing, 308 
 to dry nets on seashore. 111 
 
 to dig and get clay, coals, minerals, or to cut timber, 103, 104 
 to use water for mining, 121 
 
 by lord of manor to enclose against commoners, 104 
 easements acquired by, 80 
 
INDEX. 1107 
 
 CUSTOM HOUSE. See Revenue Oitioebs. 
 
 CUSTOMS, 
 
 commissioners of. <Sice Public Ofeioekb. 
 
 collector of, responBible for neglect to sign a bill of entry, &c., 16 
 
 superintendent of, is liable for ruining the trade of a merchant, 17 
 
 DAMAGE. See Damages. 
 
 to person or property, though not" causing any pecuniary loss, is a tort, 7 
 arising from acts lawful in themselves, e. g., lighting a fire or sinking a mine on 
 
 your own land, ia nevertheless actionable, 9 
 when sufficiently connected or not with the wrong to create a cause of action, 
 
 or the contrary, 5, 6 
 statement of, in declaration, 957 
 
 under Lord Campbell's Act, 957 
 apportionment of, in Court of Admiralty, in oases of collisions of ships, 401, 402 
 injunction against prospective, 215, n. 
 
 DAMAGES. See Court of Chancery — Statutory Compensation. 
 recoverable in actions of tort, 989, 990, 991 
 ordinarily and naturally resulting from the wrongful act are recoverable if 
 
 claimed, 991, 992 
 too remote and not naturally resulting from the wrong, 992 
 if more given than claimed, 990, 1005 
 if given entire, and one count be bad, 990, 1004, 1005 
 in actions of slander, where some words charged are actionable, and others 
 
 not, 990 
 in actions for false representation by joint stock company, and the purchase of 
 
 shares in consequence, 990 
 in actions of tort founded on contract, 992 
 in actions for false representation or fraud, 870 — 872 
 in,actions for false representation of agency, 993 
 _ where tenant has kept possession aiter tenancy has determined, and landlord 
 
 has been obliged to pay damages to the tenant to whom he has relet the 
 fai-m, 993, 99'4 
 where plaiutiif has paid for services of steam-tug in case of collision caused by 
 
 negligence of defendant, 994 
 where plaintifE has resold an article with a warranty, which was warranted to 
 
 him, 994, 995 
 in actions of libel or slander, 827—829, 996 
 
 for injuries to land whenever act complained of would lay the foundation of a 
 right, though no actual damage proved, 74, 75 
 
 but not otherwise, 75 
 in actions of trespass to realty, 310 — 314 
 
 after notice, 310, 311 
 for trespass, if wilful or after notice, 264 
 in actions of trespass to land — 
 
 trespasses in dwelling-houses, 311 
 
 by tenant against landlord for damage in cutting timber, 311 
 
 injuries to buildings, 311 
 
 digging and carrying away coal, &c., 311, 312 
 
 in respect of diseased cattle, 312 
 
 if plaintifE only tenant at will or on sufiferanee, 312, 313 
 
 if reversion injured- as well as occupation, 313 
 
 if several co-trespassers, in case of hunting, &c., 313, 314 
 
 if tenant holds over, 314 
 in actions of trespass, where several al;e concerned, 608 
 in actions for conversion, 373 — 379 
 
 if property stolen, 375 
 
 if action brought by bailee against owner,, or owner against bailee, 376, 377 
 
 if plaintiff's property is doubtful, 376, 377 
 
 for seizures under Customs Act, 379 
 
 of bills and notes, 377 
 
 if goods have been, delivered up, 377, 378 
 interest in addition to, by statute, 378 ^, ^ , „ ., , , 
 
 exceeding the value of the goods, if the natural consequences of the wrongful 
 
 act, 378,, 379 
 inactionsforseduction, 912— 914 j v , ,■ 
 
 in actions for inducing a servant to leave his service, a workman to break his 
 
 contract, or a married woman to live apart from her husband, 914 
 
 B B B B 2 
 
1108 INDEX. 
 
 DAMAGES — eontinued. 
 
 in actions for injuries to servants causing loss of service, 920 
 in actions against justices, 733 
 in actions against sheriffs, 678 — 6Sl 
 in actions for malicious prosecution, 608 
 
 in actions for malicious prosecution, malicious indictment, or malicious con- 
 spiracy, 633, eu 
 ill actions for waste, 256 — 258 
 for obstructing entry to inspect waste, 258 
 
 in actions for fall of house from negligence of adjoining proprietor, 214 
 for severance of fixtures, 256 
 
 in actions for unlawful or excessive distress, 565 — 568 
 in actions against common carriers or innkeepers, 511 — 513 
 in actions of detinue, 462 — 464 
 
 where the whole or part of the property has been delivered up after action, 
 463, 464 
 
 where property, e. g., railway shares, the value of which fluctuates, have been 
 detained, 464 
 in actions for negligence, 421 — 424 
 
 if death caused by, 423, 424 
 in actions of assault and false imprisonment, 607 — 610 
 in actions for injuries from ferocious animals, 214 
 in actions for nuisances, 213, 214 
 
 in action by reversioner for a nuisance to demised premises, 213, 214 
 in prohibition, 1046 
 in equity, 1028, 1029 
 
 for waste already committed, 261 
 in Divorce Court, 900, 903—905 
 
 apportionment of, between tenant and reversioner, 75, n., 313 
 expense of obtaining legal advice, 993 
 costs of previous legal proceedings, 993 — 995 
 recovered from one of several tort feasors is generally an answer to claim against 
 
 another, 964, 966 
 secus in cases of libel, 964, 965 
 expenses, &c., which the plaintifi is liable to pay, though not actually paid, 
 
 995 
 medical expenses, 995, 996 
 prospective, 996 
 exemplary, where wrong accompanied with personal insult or degradation, wilful 
 
 malice, &c., 996, 997 
 mitigation of, 998—1000 
 
 in actions against custom-house officers for seizing goods, 998 
 
 in actions for false imprisonment where defendant had reasonable grounds for 
 suspecting plaintiff, 610, 998 
 , in action of libel or slander by evidence of bad character of plaintiff, 999 
 
 in action for assault, where plaintiff had libelled the defendant, 999 
 
 in actions of trespass or trover, where defendant has retaken goods sold, fearing 
 they would not be paid for, 999, 1000 
 
 where goods have been seized under void process, though the judgment was 
 regular, 1000 
 
 where plaintiff has retaliated upon the defendant, 1003, 1004 
 ' where plaintiff has been guilty of misconduct, or defenda,nt intended to act 
 rightly, under an Act of Parliament, or supposed authority, 1004 
 
 where plaintiff has received full compensation under a contract of insurance, 
 1000, 1001 
 double and treble, in what cases given, 1001, 1002 
 excessive, are ground for new trial, 1002 — 1004 
 
 where plaintiff has himself fixed the amount, and received it, 1003 
 must be assessed jointly against joint trespassers, though all are not equally 
 
 culpable, 1000 
 too small, are ground for new trial, 1004 
 inquisition of, before sheriff, 1005, 1006 
 include costs, 1006. See Costs. 
 
 DAMS. See Sea-walls. 
 
 DEAN. See Ecclesiastical Dilapidations. 
 
 DEAN AND CHAPTER, 
 
 mandamus to, to admit prebendary, 106G 
 
INDEX. 1109 
 
 DEATH, 
 
 negligence causing, is actionable, 408, 409 
 
 action for injury causing, though amounting to t, felony, 32 
 
 ettect of, on proceedings in an action, 946 
 
 DEBT, 
 
 imprisonment for, is abolished, 662, n., 709, 942 
 
 DECEIT. See Falsehood— False Kepeesentation 
 instances of actions for, 864 
 licence obtained by, is a nullity, 307 
 
 DECLARATION. See Ameitdmekt—Vabianoe— Venue 
 requisites of, 956 
 
 Teuue, 966 
 
 statement of, special damage, 957 
 
 several counts, 957 
 in actions for injuries to land, 71 — 73 
 
 for the diversion, obstruction, or pollution of water, 71 72 
 
 for injuries to, the right of support, 72, 73 
 
 of waste, 72 
 in action for^obstructioas of easements or profits d, prendre to a ferry, market, or 
 
 against innkeeper for loss of chattels, 507, 508 
 
 for nuisances, 205 —208 
 
 for trespass to land, 291, 292 
 
 for malicious prosecution, 628 
 
 for libel or slander, 811 — 814 
 
 for seduction, 911 
 
 for deceit, fraud, or false representation, 864, 865 
 
 for statutory compensation, 758, 759 
 
 for wrongful excavatioiis, &c., 149, 150 
 
 for obstruction to flow of water through a drain, &c., 149 
 
 against bailees for loss of, or damage to, goods bailed, 456, 457 
 
 in actions of detinue, 456 
 
 against carrier for refusing to carry, 507 
 
 in replevin, 557 
 
 for wrongful or excessive distress, 557 
 
 for distraining and selling goods without notice of distress or appraisement, or for 
 
 not selling for the best price, 557 
 for negh'gence, 416, 417 , 
 
 for waste, by fire or otherwise, 254, 255 
 for assault and false imprisonment, 597, 598 
 ^ in trover or trespass to personalty, 366 
 for injuries to the right of light and air, 150 
 ^^t^j^sw^J^notice of action Jsnecessary, must agree with notice, 597, 598 
 
 DECLARATIONS. See Admissions. 
 
 DECOY-POND, 
 
 driving away wild fowl from, is actionable, 10 
 disturbance of, by firing guns, is a nuisance, 160 
 
 DEDICATION. See Highway. 
 
 DEER. See Game— Waste. 
 
 DEPENDANT, 
 
 expenses of, as witness, may be allowed, 1024 
 
 DEFENDANTS. See Amendment — Pakties to Actions. 
 
 in actions of tort may be sued jointly or severally, unless the action is substan- 
 tially founded on contract, in which case they must be jointly sued, .942, 943 
 
 in actions for injuries to land, 70, 71 
 master or servant, 70 
 
 in actions for conversion, 364 — 366 
 joint tort feasors, 365 ■ 
 
 in actions for negligence, &c., in carrying 'goods, 506, 607 
 
 in actions for negligence generally, 411 — 413 
 
 DEMAND. See Conversion. 
 DEPOSITIONS. /Sec Justices. 
 
1110 INDEX. 
 
 DESERTION. See Hdsband— Wife. 
 
 DESIGN. See Copteight. 
 
 registraiaon of, useful or ornamental, 45, n. 
 
 DETINUE, 
 
 plaintiffs in actions of, -454, 455 
 declarations in, 456 
 plea of non-detinet, in action of, 457 
 not possessed in actions of, 457, 458 
 payment into court, in actions of, 459 
 evidence in actions of, for the plaintiff, 459, 460 
 
 > for tlie defendant, 460, 461, 462 
 damages in actions of, 462 — 464 
 
 order of court or judge, for delivery of goods detained, 462, 463 
 costs in actions of, 1011, n. 
 
 DEVISEE. See Tenant in Common. 
 
 when may sue for injury to land devised, 923, 924 
 may sue for detention of title deeds, 462 
 
 DICTIONARY, 
 copyright in, 41 
 
 DILAPIDATIONS. See Ecclesiastical Dilapidations. 
 
 DIEEOTOKS. jSceAuDiTOB— Company. 
 
 liability of, for false and fraudulent reports, 932, 933 
 false representation hy, to sell shares, &c., 836, 839 — 842 
 
 is a misdemeanour, 840 
 false representation by, 836, 839—842, 855, 863, 864 
 negligence, or neglect of duty, by, 407, 408 
 
 DIBECTORY, 
 
 copyright in, 42 
 
 DISSENTING MINISTER, 
 
 has. not a freehold office, 1063, 1064 
 mandaniuB to admit, 1066 
 
 DISTRESS. See Cosis— Landloed— Rent. 
 
 at common law only a pledge, and may be detained till rent paid, 517, 528, 546 
 there must be a tenancy, at an ascertained or ascertainable rent, and distrainor 
 
 must be entitled to immediate reversion, 518, 519 — 521 
 by mortgagee under agreement in mortgage deed, 518, n. 
 no power of, against wrongdoer, e. g., tenant holding ovey after expiration of 
 
 term, 518 
 on bankrupt tenant, or by bankrupt landlord, 518, 519 
 must not be repeated vexatiously, 519, 539 
 extent by crown takes precedence of, 519 
 at suit of crown for duties due from bankrupt, 519, n. 
 for royalties, 520 
 by successor of tenant for life, where tenancy determines on death of such tenant, 
 
 520, 521 
 right of, inay be conditional, e. g., on the landlord doing certain repairs, &o., 521 
 for rent payable in advance, 521 ' . • . 
 
 illegal, may be resisted by force, and goods retaken till they are impounded, 
 
 522 
 after termination of tenancy for rent due before, 522, 523 
 on executors, &c., after the death of tenant, 521 
 on premises after the departure of tenant, 522, 523 • 
 on away going crop, 523; 
 by executors, 559 
 
 may be made for six years' arrears, 530, 531 
 on goods or crops seized under an execution, 530, 531 
 
 on goods of bankrupt tenant in possession of Inortgagee und.er a bill of sale, 533 
 under a licence from debtor to creditor, 533, 534 
 by grantee of tithe or other rent-charge, 534, 534, n. 
 on goods fraudulently removed by tenant, 534, 535 
 what amounts to, 535, 536, 541 
 
 by warehousemen or lodging-house keeper, 536 
 abuse of, renders landlord ?[ trespasser at comn^on law, and is sictionable, 536, 
 
 §37,540 ■ i . .. . . ... . 
 
INDEX. 1111 
 
 I>IS,TUm&— continued. 
 
 when no rent in arreai-, is illegal, 537 
 
 excessive, by seizing more goods than necessary, ia actionable, 537, 538 
 although they do not ultimately realise more than the rent and eipenses and 
 although the tenant had the free use of them, 638 
 for more rent than is due, not actionable unless more goods are sold than is 
 
 necessary to pay the rent really due, 538, 539, 542 
 after termination of tenancy by notice to quit, revives the tenancy, 623 
 by agents, receivers, cestui que trusty or mortgagor, 623, 524 
 by joint owners, or tenants in common, 624, 525 
 by mortgagees, 524 
 
 by executors or administrators of landlord, 525 
 right of, may be abandoned by agreement, 525 
 
 right of, not destroyed by landlord taking a bill or note for the rent, 525, 539 
 wrongful, if rent has been tendered, 525 
 
 unlawful or excessive, is actionable, though the tenant enters into an arrange- 
 ment with landlord respecting the things seized, 564 
 time, mode, and place of, 525, 526, 535, 636 
 must be made on land demised, 526 
 on cattle, &c., on common, 526 
 not wrongful, a6 initio, because goods not distrainable are seized, with others that 
 
 are, 567, 568 
 does not alter the property, 333 
 affirms the tenancy, 546, 564 
 
 on goods seized and sold by sherifE to execution creditor, but not removed, 657 
 by county court bailiflF or registrar, 665 
 by order of justices, 708—710 
 
 for non-payment of poor-rate, 709, 710 
 for non-payment of poor-rate, 695 
 what things are liable to, or not — 
 tenant's fixtures, 526, 527 
 millstones, railway sleepers, &o., 527 
 beasts of plough, sheep, implements of husbandry and tools, or clothing, &c., in 
 
 actual use, 527 — 528 
 growing crops, fruit, or other perishable articles, money, &o., 628 
 trees or shrubs in nursery gardens, 528 
 property of third persons on <lemised premises, but in their own possession, 
 
 actual or constructive, 528, 629 
 property of third persons, placed on demised premises, with leave of landlord, 
 
 529 
 property of lodgers, 529, 530 
 
 property of third person placed on demisad premises to be worked on in the 
 , way of trade, pawnbroker's pledges, &o., 530 
 
 property of guests at an inn, 630 
 goods in the custody of the law, 530, 531 
 
 goods of foreign ambassador, or his servants, or of companies in liquidation, 531 
 goods left by owner on demised premises in possbssion of the tenant, and not 
 
 necessary for the carrying on of tenant's trade, 531 — 533 
 goods mortgaged by tenant, 533 
 impounding and removal of, 539, 540, 541 
 removed from pound, may be recaptured, 640 , 
 impounded, must be fed, 541 
 leaving possession of, for a temporary purpose, is not an abandonment of, 
 
 541 
 notice of, inventory of things seized, and appraisement before sale, 543, 544 
 sale of articles not included in, illegal, 543 
 sale of, must be for best price, 544, 657 
 costs and expenses of, 544 
 sSilo of 541 544 
 
 irreguiarity'in sale is actionable if tenant suffers actual damage, 545 
 ' ijnlawful after tender of rent and expenses, 641, 542, 543 
 surplus goods to be returned to distrainee, 322 
 wrongful, amounts to a conversion, 321 
 remedy for wrongful, by replevin. See Replevin 
 remedy for unlawful or "excessive, or for distraining things not liable to distress 
 
 by replevin, action of trespass, or trover, according to circumstances, 554, 555 
 plaintiffs in actions for excessive, 556- , , , . , , 
 
 lodgers, under-tenants, persons who have the actual possession of goods, &c., 
 556 ' 
 defendants in actions for illegal, 556, 557 
 landlord or bailiff, partners, kc, 556, 657 
 
1112 INDEX. 
 
 DiaiB.'E&S— continued. 
 
 declarations ifor wrongful or excessive, for selling goods without notice of distress, 
 
 or appraisement, or for not selling for the best price, &c, 557 
 plea of recorery of goods by replevin in actions for excessive, 561, 562 ^ 
 evidence of fact of, 562 
 
 evidence in actions for unlawful or excessive, 562^565 
 
 proof of special damage necessary in actions for irregularity in making, 563, 564 
 payment of rent under, not conclusive admission of title of distrainor, 564 
 damages in actions for unlawful or excessive, 565 — 568 
 landlord cannot claim to apply proceeds of goods wrongfully seized in discharge 
 of rent, 566 
 damage feasant, 546 — ^551 
 on commons, 547, 549 
 on unfenced land adjoining highway, 547, 548 
 
 or land which person distraining was bound to fence, 561 
 what things are liable to, horses in use, dogs, nets, pigeons, railway engines, 
 
 &c., 548, 549 
 tender of amends, 549, 550 
 impounding of, 550 
 1 sale of, to discharge expense of feeding the impounded animals, 550, 551, 554 
 on beasts wrongfully on common, 144 
 ■ right of, between one commoner and jinother, 144 
 pleas justifying entry to make, or seizure of animals "or goods damage 
 feasant, 561 
 
 DITCHES. See Drains. 
 
 repair of, by side of turnpike road, 162 
 
 adjpining highway, are a pubUo nuisance if choked up, 218 
 
 boundary, property in, 287 
 
 DIVORCE. See Husband— "Wife. 
 
 DOCK, 
 
 negligence in the management of, 186 
 
 DOCK COMPANY, 
 ' lien of, 448, 449 
 
 DOGr. See Animals — Hounds. 
 
 injuries from attacks of, 191, 192 
 
 person "keeping," is Hable for injuries inflicted-by, although not the owner, 191 
 
 injuries by, to horses, cattle, sheep, or game, 23/ 23, n., 192 
 
 attacking a person, may be shot, 192 
 
 stray, may he detained by police, 192 
 
 dangerous, may be destroyed by order of justices, 192 
 
 injury by, to crops, sheep, or cattle, 267, 268 , 
 
 chasing of cattle, sheep, or game by, when a trespass or not, 319 
 
 may be shot, if cattle, sheep, or- game, which they are chasing, cannot otherwise 
 
 be preserved, 319, 369, 373—4. 
 reputed mad, duty to keep carefully, 192 
 right of action for injury to, from spears or traps, 168 
 liability of common carrier, or railway company, for escape of, 471 
 may be, distrained, damage feasant, 549 ,/ „ 
 
 DOG SPEARS, ^ 
 
 setting of, not illegal, 168 
 
 DRAIN. See CEsaPOOL— Sewer — Tenant — Watek — Watekooursb. 
 
 obligation to repair, lies on person using, not necessarily on tenant, 211 
 
 right of repair of, in alieiM solo, 85, 86, 88 
 
 fight to use, in common with adjoining proprietor, 85, 86 
 
 right to use of water from, 123 
 
 DRAINAGE. S«c Water. 
 statutory powers of, 60 
 
 DRAMA. See Copyright — Novel. 
 unlawful representation of, 44 
 
 DRAWINGS. See Coptbioht— Paintings. 
 
 DRIVING. See Carriage — Coach — Horses. 
 
INDEX. • 1113 
 
 DUTY. SeeToKi. 
 
 breach of, is a tort, li. 
 
 instances of trsach of, by joint-stock companies, shareholders, assignees of leases, 
 
 public officers, bishops, clergymen, lords of manors,- postmasters, bailors of 
 
 chattels, &c., 15 — 18 
 
 DUTIES. See Costs. 
 
 imposed by statute. . See Statute. 
 
 DYE-HOUSE, 
 
 is a nuisance, 162 
 
 EASEMENT, /^^^-^-'v-'^^^^^'^t^y A- ^ 
 
 how acquired or extended, 79, 80 
 
 wlien may be acquired over land let on lease, 114, 115, 119, 120 
 
 presumption of grant of, from long user, 114 
 
 what may be claimed under Prescription Act, 118 
 
 user of, must be without interruption, but need not be without intermission, 129, 
 130, 131,133 
 
 of recreation and amusement on village greens, 81 
 
 of towing on river or canal, 284, 285 
 
 of using your neighbour's chimney, 157 
 
 of support. See SupppET. 
 
 not extinguished by destruction of house or mill to which they are attached, if 
 house or mill rebuilt, 142, 143 ^ 
 
 extinguishment of, when purpose for which it was granted, ceases to exist, 134 
 
 cannot be created, but may be destroyed, by Ucenoe, 134 
 
 extinguishment of, by unity of possession of the dominant and servient tene- 
 ments, 97, n., 133, 134, 138—142 
 
 revival of, which has been extinguished by unity of ownership, 140 — 142 
 
 transfer of, 96 et seq. 
 
 reservation of, on sale, 84, et seq. 
 
 of necessity, when they pass by sale of land to which they are appurtenant, 
 84, 85 
 
 effect of valuable consideration ha,ving been paid for enjoyment of, 157 
 
 declarations for obstructions to, 147,. 148 
 
 injunction to prevent distur tonye of, 156, 157 ^,'-1 
 
 B.4.TING HOUSE, 
 
 keeper of, not an innkeeper, 495 
 
 EAVES. See Coknice— Eevbesionee— Watee. 
 right to use of water from, 123 
 
 ECCLESIASTICAL DILAPIDATIONS. feEiXTUEES. 
 
 liability of rector,' archbishop, dean, &o., to repair and re-build buildings, chancel, 
 &c., 238 
 but not for internal decoration, 238 , '., , , .,-,. , ^A s. 
 
 rights of same persons to make alterations, substitute new buildings for old, &e., 
 
 238 
 and to alter cultivation of glebe, plough up grass land &e 238, 239 
 rights of same persons over mines, and to cut down timber 239 
 law as to, so far as buildings are concerned, how altered by -the 34 and 35 Vict. 
 
 for^non-replir^ot buUdings or fences, but not for state of agricultural land, 940 
 negligence in valuing for, 406, 407 " 
 
 ECCLESIASTICAL COURT, 
 prohibition to, 1037, 1040, 1041 
 
 ^'^^™fbe^ioined with another cause of action, 955 
 
 when maVbe brought in County Court, 949, 950, 951, 952 
 costs in action of, 1006, n. 
 injunction in actions of, 103b 
 
 ELECTION. See Sherief. 
 
 TCLECTBIC TELEGRAPH COMPANY, 
 
 liabmty of, for mistakes in transmission of messages, 14 
 
1114 INDEX. 
 
 EMBANKMENT. See Sea-wall— Water 
 erection of, when actionable, 3 ,/ /'/? 
 
 EMBLEMENTS, 
 
 statutory provision as to, where tenancy determines on death of tsnant for life, 
 &o., 520, 521 
 
 ENCLOSURE. See Enolosdeb Act. 
 right of, by lord of manor, 104 
 
 ENCLOSURE ACT. See Copyhold. 
 
 rights of lords of manor, and allottees, under, to surface and minerals respectiTely, 
 
 159 
 rights of lords of manor to game, &c., under, 83, 84 , 
 
 title to highways laid out under, 309 
 
 ENCROACHMENT. See Tenant. 
 
 ENGRAVINGS. See Piotuebs— Prints. 
 
 ENTRIES. See Evidence. 
 
 ENTRY. See Indictment — Ndisanoe — Statute of Limitations. 
 sufficient against person not entitled to land, 304, 305 
 ■ by landlord iusj;ifiable if premises vacant, otherwise not, 573 
 
 ESCAPE. See Sheriff. 
 
 ESTOPPEL, 
 
 as between landlord and tenant, 699, 952 
 
 as between distrainor and distrainee, 518 
 
 as between tenant and receiver of Court of Chancery, 565 
 
 as between plaintiff and defendant, 372, 373 
 
 as between bailor or owner and bailee of goods, 372, 461 
 
 as between execution creditor and execution debtor, 656 
 
 .as between judgment debtor and sheriflf, 662, 663 
 
 as between. the sheriff and the owner of goods, not the defendant, seized in 
 
 execution, 651 
 as between principal and agent, 271 
 as between patentee and assignee or licensee of, 54 
 as between a person representing a certain state of fact? as true, and the person 
 
 who has acted upon such representation, 984 
 f as between company and innocent transferee of forged sha,r?3, 985, 1086 
 must be pleaded, but if not pleadable may be relied on at trial, 293 
 
 ESTOVERS, 
 
 common of, 107, 108 
 
 grant of, 96 
 
 claim of, in a royal forest, 102 
 
 ETCHING. Sec Pictures. 
 
 EVIDENCE, 
 
 in actions for injuries from non-repair of drains or sewers, 21 1 
 
 in actions for injuries from dangerous excavations, or fall of ruinous buildings, 211 
 
 in actions foi: injuries from non-repair of party walls or fences, 211 
 
 in actions for negligent management of buildings, railways, canals, or docks, 21 1 
 
 in actions for inj uries to workmen from dangerous premises, defective ladde'rs &c 
 
 211 , • ' 
 
 in actions for injuries to guests from dangerous premises of host, 21 1 
 in actions for injuries from ferocious animals, dogs, &c., 212, 213 
 in actions for. illegal arrest, for the plaintiff, 628, 629, 630, 631 
 in actions for maEoious prosecution, for the plainliflF, 629 — 633 
 ~ oral, of what took place before the magistrates,"630 
 
 of malice, and want of probable cause, 631 — 633 
 
 of malice from want of probable cause for a prosecution, 614 
 
 of want of probable cause from malice, 614, 615, 621 
 
 of malice from admission of defendant, 616 
 in actions for malicious prosecution, for t|he defendant, 633 
 in actions against justices — proof of malj.oe sjiud -yp-iint of probable cause, 730, 731 
 
INDEX. 1115 
 
 EVIDENCE— coniiwi/cd 
 
 iu actions of libel or slander, for the plaintifF, 817—826 
 of maliee, 823, 824 
 in actions against newspapers, 816 
 
 for the defendant, 826, 827 
 „ ., under plea of not guiltv. 814 SK 
 
 in actions for false representation or deceit, 866— 8'70 
 
 of contract with railway company, by production of ticket only is not sufficient, 
 
 _ of fraud by an agreement though unstamped, 868 
 in actions for seduction, 912 
 in actions for injuries to land, 74 
 for the plaintiSf in actions for waste, 255, 256 
 in actions of trespass to land, for the plaintiff, 301—305 
 for the defendant, 305 — 310 
 under plea of not guilty, 292 
 under plea pf Uberum tenementum, 271, 305 
 under plea of leave and licence, 306, 307 
 of public right of way, 309 
 in actions against carriers, for the plaintiff, 509, 510 
 
 of felony by servants of carrier, 510 
 in actions against constables, 731, 732 
 iu actions of assault, for the plaintiff, 605 
 for the defendant, 606, 607 
 
 under plea of not gUilty, 598, 599 
 under plea of son assault demesne, 606, 607 
 in actions against sheriffs, for the plaintiff, 675— 677 
 
 for the defendant, 677, 678 
 in actions of detinue, for the plaintiff, 459, 460 
 for the defendant, 460 — 462 
 in mitigation of damages, 464 
 for plaintiff in actions for nuisances, 210 — 213 
 of occupation, 210, 211 
 for defendant, 213 
 
 under plea of not guilty, 213 
 for the plaintiff under plea of not guilty in actions for obstructions to easements 
 or profits d prendre, 151 
 under plea traversing right stated in the declaration, 151 
 for the plaintiff in actions for conversion, 369 — 371 
 
 of conversion by admission of defendant, 371 
 for the defendant, 372, 373 
 iu actions for false imprisonment for the plaintiff, 605, 606 
 
 signing charge sheet, 595, 596 
 for the defendant, 599, 560 
 
 under plea of not guilty by statute, 599, 600 
 in actions for unlawful or excessive distress, for the plaintiff, 562, 563 
 of tenancy, 564, 565 
 of fact of distress, 562 
 for the defendant, under plea of not guilty "by statute," 560, 561 
 of malice from distraining upon a bankrupt for poor rate, 617 
 of manorial customs, boundaries, 985 
 
 of title and seizin by receipt of rent, declarations of deceased tenants, &c , 74 270 
 304, 985, 986 • > > > , 
 
 of title to sea-shore, 280, 281 
 
 of ownership of ship by production of ship's register, 419, 420 
 of title of trustees in bankruptcy, executors, administrators or nominal parties 
 
 371 
 in actions for negligence, for the plaintiff,- 41 8 — 420 
 
 of negligence from the very occurrence of the accident or loss of the goods 383 
 384, 419, 435, 436 e. . , 
 
 from loss of goods by theft, 480 
 
 in case of goods on board ship being injured by oil, 482 
 from delivery of short weight, 471 
 for the defendant, 420, 421 
 in Court of Divorce, 898—903 
 
 of marriage, 900—903 
 erf proceedings in county court, 678 
 
 of adjudication or other proceedings in bankruptcy, 371, 371, n., 926 
 primary and secondary, 977, et seq. 
 best to be produced, 977 
 except in cases of admission of person against himself 978, 979 
 
1116 INDEX. 
 
 EVIDENCE -continued. 
 
 and cases of appointment to an office, such as constable, trustee of turn- 
 pike road, excise officer, &e., where it is sufficient as against a wrong-doer 
 to prove that they were acting as such, though their appointment was 
 by deed or writing, which is not produced, 978, 979 
 notice to produce writing, &c., necessary to let in secondary evidence of its con- 
 tents, 979 
 except in case of duplicate originals, notices affixed to freehold, or where the 
 action is brought for the detention of the writing or document itself, 979, 
 980 
 ' hearsay, ,when admissible, 980, 981 
 
 entries of deceased persons against their interest or in the exercise of their 
 
 duties, 981, 982 
 declarations accompanying an act, 982, 983 
 by agents or servants in the course of a wrongful act done in obedience to 
 
 master's orders, 983 
 by one of several wrong-doers in actions for negligence, 983, 984 
 when the adverse party in a suit is estopped from giving, to contradict his own 
 
 representations, 984, 985 
 depositions of witness too ill to attend, 988 
 in mitigation of damages. See Damages. 
 
 EXCAVATION. See Declaeation — Mines — Suppokt. 
 on a man's own land to build a house, 164 
 unfenced, by side of highway, is a nuisance, 166 
 illegality of adjoining highway, 171 
 
 EXCISE, 
 
 commissioners of. See Public Opeiobes. 
 
 EXECUTION. S«eSHEEiFP. 
 
 right to issue may be exercised, though it be done maliciously, 621 
 
 for a larger sum than due, when actionable, 622 
 
 abuse of, to obtain something not authorised by the process of law, e. g., the delivery 
 
 up of a ship's register, is actionable, 624, 626 
 property may be taken away to avoid, 374 
 against company in liquidation is void, 531 
 suffering, when an act of bankruptcy, 346, 347, 348 , 
 title to' property under, in case of bankruptcy of execution debtor, 347, 348 
 
 EXECUTION CREDITOB. See Judgment Cbeditoe. 
 
 EXECUTOK, 
 
 has constructive possession of testator's goods from the time of the death, 370 
 right of, to fixtures against heir, 241, 242 
 
 against reversioner, 241, 242 
 not liable at common law for torts committed by their testator, although, if the 
 tort be beneficial, or injurious to the estate, an action of contract may be 
 brought against them, 939, 940 
 but are made liable by statute for injuries to real or personal property com- 
 mitted by testator within six months of his death, 940 
 of prebendaries, incumbents, &c., liability of, for ecclesiastical dilapidations, 940 
 not liable in equity for negligence of their testator, 940 
 liability of, for their own wrongful acts, e. g., in detaining or converting property, 
 
 or committing waste, 940, 941 
 when, may sue for injury to land devised, 923, 924 
 or to personal property of testator, 924, 925, 926 
 cannot sue for injuries to person, or personal character of testator, unless the cause 
 of action is founded on contract, 925, 926 
 but may sue for negligence causing death of testator, 408, 409, 925, 926 
 damages recoverable insuch case, 423, 424 
 distress by, 525 
 
 of tenant may be distrained upon, 522 
 
 character of, need not be proved,- unless it is specially denied, 371 
 costs in actions against, 1020 
 security for costs from, 1026 
 
 EXECUTOR DE SON TOUT, 
 
 liable to administrator for conversion of goods of deceased, 365 
 
 EXPOSURE. See Indecency. 
 
INDEX. 1117 
 
 EXTENT, 
 
 takes precedence of landlord's claim to rent, 667 
 maliciously issuing, when actionable, 623 
 
 FACTOK. See Bailee— Broker. 
 
 FACTORY, 
 
 statutory regulations for management of, 398, n., 399 
 
 FAIR See Market. 
 
 interference with, how far a tort, 11 
 
 injunction against holdirtg, 217 
 
 unlawful within Metropolitan Police District, 102, n. 
 
 may be abolished by Home Secretary, 102, u. 
 
 FALSE IMPRISONMENT. See Arrest— Costs— Imprisonment. 
 what amounts to imprisonment, 575, 576 
 constructive, 575, 576 
 unlawful detainer, 578 
 need not necessarily be malicious, 27 
 arrest by constables, with or without warrant, 576 —578 ' 
 by private persons, 578 
 for misdemeanour, 578, 579 
 of wrong person, 579 
 
 if such person has caused the arrest by his own misrepresentations, 579 
 for malicious injury to property, or wilful and malicious trespass, ^79, 580 
 of persons committing indictable offences at night, 580 
 for breach of the peace, 580— 582, 604 
 during affray, 580, 581 * 
 of persons disturbing divine service, 582, 604 
 of vagrants and persons committing acts of public indecency, 582 
 under Merchant ShijJping Act, 582 
 of principal by his bail, 582 
 for offences within Metropolis, 583, 584 
 
 of persons suspected of being in possession of Government stores, 583, n. 
 by servants of railway companies, 584, 585, 931 
 of persons as deserters, 585 
 of lunatics, 585, 586 
 by person assisting a constable in arresting, &c. ; secus if he merely makes a state- 
 ment to a constable, or lays a complaint before a magistrate upon which tlie 
 constable arrests, or the magistrate issues a warrant; 595, 599, 729, 730 
 on void writ, though not set aside, if issued contrary to express provisions of 
 
 statute, 662 
 under void writ, is a justification to the sheriff, but not to the client or attorney 
 
 who issued it, 662 
 by order of corporation, 931 
 by order of court martial, 604, 605 
 plaintiffs in actions for, 594 
 
 if two or more are imprisoned, 594 
 defendants in action for, 594—597, 729, 730 
 aU persons ordering, &c., or assisting in the impriaonmeut, or giving informa- 
 tion which causes the imprisonment, 594, 695, 596, 606 
 or subsequently ratifying the act, 597 
 signing charge-sheet is primd facie evidence that person signing ordered the 
 
 imprisonment, but is not conclusive, 595, 596, 605 
 attorney and client, if legal process has been set aside as irregular, 596 
 otherwise, if /or error, 596 
 or if judgment be set aside in the exerciseof equitable jurisdiction of the 
 Court, 596 
 corporations, railway companies, &c., 696, 597 
 
 persons ratifying an arrest committed by their agents or servants, 597 
 declarations for, 597, 598,606 
 pleas in— not guilty, 598, '599 
 not guilty by statute, 599, 600 
 
 previous hearing, and dismissal by magistrates, 600, 601, 607 
 imprisonment for preservation of discipline, or the safety of a ship, 602, 603 
 that felony had been committed, and that defendant had reasonable cause of 
 
 suspecting the plaintiff, 603, 604 
 that plaintiff would not leave defendant's hou^e or shop, 604 
 
1118 INDEX. 
 
 FALSE IMPRISONMENT— comiimwed 
 
 evidence in actions for, for plaintiff, 605, 606 
 
 for the defendant, 607 
 damages in actions for, 607-— 610 
 where plaintiff remanded by magistrate, 608 
 money paid to obtain release, &c., 609, SIQ 
 eyidence in mitigation of, 610 
 judgment recovered in action for, is no bar to action for malicious proseontion, 
 610, 967 
 
 TALSEHOOD. See False Eepeesentamon. 
 causing damage is actionable, 26 
 no action lies for, without intention that another should act upon it, 834, 835 
 
 FAJLSE PRETENCES. See Indictment. 
 to obtain money by, is actionable, 33 « 
 
 FALSE EEPEESEiSTTATION. See Falsehood— False Pbetences — Fkaud — 
 
 WlEE. 
 
 when actionable, 9, 10, 835 
 causing loss of marriage is actionable, 8 
 
 by which a person is induced to enter into a contract, is actionable, though the 
 contract is in writing, and no warranty is given, 868, 869 
 but the contract must be repudiated on discovery of the fraud, 835 
 made without knowledge of its untruth, but without belief of its truth, 835, 837, 
 
 838, 844, 845 
 unintentional deception, 835, 836 
 
 made for another to act upon, is actionable, if damage ensues, 836, 861, 862 
 by directors, promoters, or officers of public company, 836, 839 — 842, 863, 864, 
 . 866, 932, 933 
 
 by directors, whether the company liable, 840, 841, 842, 855, 863, 864 
 of right of lien, 27, 837, 864 
 respecting the conduct, credit, &c., oT third persons, whether individuals or 
 
 members of a partnership or company, 838, 839, 864 
 fraudulent breach of warranty, 842 
 
 obvious defects, 842, 843 
 
 statements made before sale, whether by auction or otherwise; 843, 844 
 that designs of goods were copied from registered patterns, 864 
 by a vendor, or others, where the means, of knowledge lie peculiarly or exclu- 
 sively within their reach, 844, 845, 847 
 respecting matters, which lie as much within the knowledge of one party as the 
 
 other, 845 
 amounting merely to expressions of opinion and belief, e. g. respecting the credit, 
 
 &c., of a third person, 845, 846 
 to sheriffs, as to the ownership of goods, proposed to be taken in execution, 846 
 by vendors on sales of real property, 846, 847 
 of title on sales of real property, 847, 848 ' ^ 
 
 of title on sales of personal chattels, 848, 849 
 
 except where a man does not sell as owner, e. g. sheriff or auctioneer, 848, 849 
 by manufacturers, of the quality of the articles they make (or get made) and 
 
 sell, .849 
 by vendors of an article wanted for a special purpose, 849, 850 
 
 to absent purchaser, 850 
 
 on sale of goods by sample, 850, 852 
 by railway companies as to the time of their trains starting, 852, 864 
 of authority by vendors, agents, &o., 852 — 855, 864, n., 993 
 
 by landlords in ordering distress, 855, 864 
 by agents with intent to deceive principal, 854, 864 
 . when principal is liable for, 854, 862, 863 
 by company, who have registered a forged transfer, 1086 
 by counterfeiting trade-marks, 855, 856, 864, 869, 870 
 by vendors of articles with trade-marks upon, them, or upon which any description 
 
 of the place, country, &o., where the articles were made, is marked, 856 
 by vendors of hops, 856, 857 
 of name of bank, 867 
 by provision dealers, 857 
 by married women or infants, 857, 858, 938 
 by concealment of defects, 858, 859 
 
 although goods sold " virith all faults," 860 
 of facts which it is a person's duty to disclose, 858, 859 
 
 dangerous nature of articles bailed, 859, 860 
 
INDEX. 1119 
 
 ifALSE REPEESENTATION— conimueA 
 
 made to A. to be oommunicated to B., or which are communicated to B., 861, 
 
 862 
 plaintiffs in actions for, 861, 862 
 defendants in actions for — 
 
 principal and agent, 862, 863 
 
 joint-stock companies, 863, 864 
 declarations in actions for, 864, 865 
 
 plea of not guilty in actions for and evidence thereunder, 865, 866 
 eyidenoe in actions for — 
 
 of the false representation, 866 
 
 of the representation having been made to the plaintiff, 866 
 
 that the plaintiff relied on the representation and not upon his own judgment, 
 866, 867 
 
 of fraud and falsehood on a written contract, though no warranty is given in 
 such contract, 867, 868 
 
 of unsoundness in horse, 868, 869 
 manifest defects — vice, &o., 869 
 
 in case of counterfeit trade-marks, 869, 870 
 damages for, 870—872, 993 
 remedies for, in equity, 870 
 
 by bill to compel a person to make his representation good, 870 
 
 by injunction in case of fraud, counterfeit trade-marks, &c., 874 — 878 
 indictment for, 872, 873, 874 
 money paid under may be recoveredj 839, n. 
 
 FATHER. iSee Childeen. 
 
 FELONY. See False Impbisonment — Justices. 
 
 is a tort, but criminal proceedings must be taken before civil, 31, 32 
 
 effect of, on title to goods, 337—339 
 
 accusation of, is slanderous, 4 
 
 conspiracy to charge a person with, 'is actionable, 33 
 
 arrest for, when justifiable without warrant in house of another, 295 
 
 FEME COVERT. See Coveetore— Makbied Woman— Wipe. 
 
 FENCES. SeeBouNDABY Wall. 
 
 lessee or tenant must preserve and repair, 233, 291 
 and may cut wood for, 235 
 
 liability of tenant for non-repair of, 147 
 
 cuttings' of, belong to tenant, 285 
 
 duty of railway company to maintain, 180, 181 
 
 trespass by cattle from want of, or defective, 266, 267 
 
 injuries to cattle, &c., from non-repair of, 180 
 
 right to repair of, by one adjoining proprietor against another, 80, 125 
 
 servitude of repairing, is destroyed by unity of ownership, 139 
 
 right of action for injuries caused by non-repair of, 155 
 
 boundary, property in, 287 
 property in trees in, 285 
 
 cutting of boundary, 265 . ... 
 
 right of proprietor of boundary, to let poisonous clippings fall on adjoming pro- 
 perty, 69 
 
 declaration in action for non-repair of, 148 
 
 evidence in action for non-repair of, 154 
 
 FEJRJE NATVUM, 
 
 keeping animals, liability for, 23 
 
 FERRY, .. ,,, 11 io 
 
 interference with, how far actionable, 11, 1^ * , . ... ^ . .^ 
 
 owner of, is entitled to compensation under the Lands Clauses Act, if ferry inter- 
 fered with, 12, 13 . i.„ - . 
 declaration in action for obstructing, 14S 
 
 FBRRYMAJSr, 
 
 duties and liabilities of, 493, 494 
 lien of, 441 
 
 ■"^^^Ut on one person's land, but spreading to another's, is lictioiiaMe, 9 
 injuries by, to house, caused by negligence, may be waste, 232. 
 
1120 INDEX. 
 
 FIRE^— continued. 
 
 illegality of, adjoining highway, 171 
 liability for, of landlord on demised premises, 2i7 
 of tenant, on demised premises, 247 
 if fire spreads to adjoining premises, 248, 249, 250 
 if fire caused by guest, servant, or stranger, 248, 251, 252 
 if spreading of fire caused by sudden tempest, &c., 249 
 if fire caused by use of dangerous engine, e. g. steam engine, furnace, &c., 
 
 250, 251 ■ 
 if arising from pare accident or negligence, 249, 250 
 if caused by negligence of servant, 251, 252 
 if caused by explosion of gunpowder, gas, &c,, 252 
 of railway companies' from fires spreading to adjoining property, 250, 251 
 caused by sparks from railway engine, 738 
 insurance against, tow far it affects right to sue for damage caused by, 253, 258 
 right of tenant or reversioner to sue for injuries caused by, 254, 257 
 when damages caused by, may be recovered from water company, 40 
 declarations for negligently keeping, 254, 255 
 evidence in actions for injuries caused by, 256 
 
 assessment of damages for injuries caused by, where several persona interested, 
 267 
 and generally, 257, 258 
 
 PIRBWOEKS, 
 
 injuries from, when and how far actionable, 2, 6 
 near or on highway illegal, 171 
 
 FISH. Se& Fishermen — Fishebt. 
 
 right of fisherman to, when caught, 335, 336 
 interference with, when nearly iietted, is a tort, 336 
 rights of lessees with regard to, 233, 234 
 
 FISHERMEN, 
 
 rights of rival, 12 
 
 FISHERY. See Licence — Salmon. 
 right of, in the sea. 111 
 right -of, on sea-shore, 281 
 
 right of, in a navigable or non navigable river. 111 
 oyster and mussel. 111, n. 
 rights of riparian proprietors to. 111 
 right of several, 108 
 grant of right of, 96 
 
 grant of several, in freshwater lake, 282, n. 
 merger of several, 282, n. 
 right of, not claimable by custom, 101, 102 
 right of, when a ■profit & prendre, 80 
 right of, where channel of river has altered, 154 
 right to have weir for purposes of, 153, 154 
 ascertainment of right qf, by bill of peace, 160 
 nets impeding, when illegal, 199 
 destruction of, by fouling the -water, is a nuisance, 162 
 statutable regulations for the management of the pilchard, 40 
 removal of obstructions to, under Salmon' Fishery Acts, 199 ' 
 licence of, from Board of Conservators, 198, n. 
 
 FIXTURES, 
 
 removal of, as between heir and executor, 241, 242 
 
 as between executor of tenant for life, or in tail, and remainderman, 241, 242 
 
 as between landlord and tenant, 241, 242, et seq. 
 
 as between outgoing and incoming incumbent, 242 
 in case of trade, or buildings accessory to matter of a personal nature 241 242 
 
 244 ... 
 
 agricultural, 242, 243, 244 
 agricultural, not removable at common law, 242 
 removable by statute, 244 
 or custom, 245 
 landlord's, what are, 242, 248 
 
INDEX. 1121 
 
 FIXTUEES— contiKdcrf. 
 
 tenant's, what are, 242 — 246 
 ornamental or domestic, e.g., mirrors, conservatories, doors, grates, &c., 242, 
 243,244 . . .B , . > 
 
 trade, e.g., brewery, coal mines, canals, cider mills, salt pans, dyer's vats, &c., 
 241, 242, 243 
 right to remove abandoned, by contract, 245 
 removal after expiration or forfeiture of term, 245, 246 
 removal of, by purchasers, mortgagees, or assignees of tenant, 246 
 removal of, is waste, 231 
 removal of, is actionable by reversioner, 289, n. 
 right to, when severed, 370 
 wrongfully severed', vest in landlord, 254 
 damages recoverable for severance of, 256 
 conversion of, 323 
 are not distrainable, 526, 527 
 
 sal? of, by auctioneer, only gives right of removal, 362 
 sale of, by sheriff, may be restrained by injunction, 656 
 are not "goods or chattels" within reputed ownership, clause of Bankrupiey 
 
 Act, 350 
 must be taken with house, &c., under Lands Clauses Act, 747 
 
 FLATS. -See Support. 
 
 FLOOD. See Water. 
 
 FLOOES. .?ee Support. 
 
 FOOD, 
 
 selling of unwholesome, is actionable, 857' 
 
 FOO'TPATH. See Highway. 
 right of ploughing up, 173 
 
 through wood, in several directions, not a highway, 221 
 right of, includes ordinary accompaniments of foot passengers, 221 
 right of, whether consistent with existence of gate across, if gate allowed to go to 
 
 decay, 221, 222 
 prescriptive user of land adjoining by tenants of houses, 224, 225 
 right of adjoining owner to make carriage-way across, 270 
 is included in proof of carriage-way, 307, 308 
 
 FORCE, 
 
 any invasion of another's rights by, is actionable, 8 
 
 FORCIBLE ENTRY. See Assault. 
 
 FORGE. See Noise. 
 
 FORGERY. See Banker— Company. _ 
 
 inducing a person to commit, is actionable, 28 
 conspiracy to procure property by, is actionable, 33 
 action to recover money procured by, 32 
 
 FOUNTAIN, 
 
 penalty for fouling water in, 201 
 
 FRAUD. See Contract— Deceit— False Representation. 
 
 any injury or invasion of another's right by, is actionable, 8, 9, 26 
 
 effect of, on title to goods, 340, 341, 342 
 
 goods obtained by, property in, does not pass, 321 
 
 goods obtained by, are not in reputed ownership of bankrupt, 358 
 
 effect of, under statute of limitations, 276 
 
 evidence of, by unstamped agreement, 868 
 
 indictment for, 872, 874 
 
 iniunction'to prevent, 874, et seq. _ 
 
 interference by Court of Chancery to prevent, where goods m possession of 
 
 , bailee, 327 
 FRAUDULENT PREFERENCE. See Bankrupt. 
 
 FREEHOLD OFFICE, See Ofpioe. 
 
 ;» c c c 
 
1122 INDEX. 
 
 FRIENDLY SOCIETIES. 
 
 remedy for disputes between members of, 39 
 
 disputes between members of, referred to justices, may be appealed from to 
 
 superior Court, 712, n. 
 jurisdiction of County Court in cases of, 949 
 
 FULLER, 
 lien of, 439 
 
 FUNDS. : See Stock. 
 
 GAMBLING HOUSE, 
 
 keeping, is a public nuisance, 219 
 
 GAME. See Dbcot-Pond— Grouse. 
 title to, 334, 335 
 
 when killed, is the property of the person on whose land it falls, 7 
 right of lord of manor to, on common, 109 
 right of lord of manor to,-under Enclosure Act, 83, 84" 
 rijght to, under a reservation in a conveyance of land, 84 
 rights of lessees with respect to, 233, 234 
 right to shoot and carry away is a profit ft prendre, 80 
 destruction or chase of, by dogs, 23, n., 192. See Dos. 
 
 GAMES. See Gambling House. 
 on highways illegal, 171 
 
 GAOLER, 
 
 liabilities of, for detaining the wrong man in prison, if he has notice of it, 
 
 665, 666 
 •when must discharge a person committed for contempt of Court of Chancery, 666 
 
 GARNISHMENT, 
 
 right of, at common law, 455 
 
 GAS. See Gas-works. 
 
 injuries caused by explosion of, 19, 252, 415 
 
 GAS-WORKS, 
 
 injury to view from erection of, 3 
 
 remedy for nuisances arising from, 200, 201 
 
 injunction against injury arising from, 215 
 
 GATES. See Fences— Highway — Railway. 
 across public highway may be cut down, 198 
 
 unless legally there, 174 
 locking of, across a way, is actionable by the reversioner, 146, 149 
 erection of, across private way, or carriage way, whether actionable, 153 
 
 GLANDERS, 
 
 sale of horses affected with, when unlawful, 3, 4 ^ 
 
 GLASS, 
 
 manufactory is a nuisance, 162, 164 
 
 GLEBE. See EcoLEsrASTiCAL Dilapidations. 
 
 GOATS, 
 
 sale of diseased, when unlawful, 4 
 
 GOODS. See Chattels. 
 
 GOVERNOR OF COLONY, 
 
 abuse of authority by, is actionable, 29 
 
 is liable for trying a civilian by court-martial, 29 
 
 GRANT. See Crown. 
 
 easements acquired by, 80 
 
 right to use of water by, 66 
 
 no man may derogate from his own, 96 
 
 GRASS, 
 
 sale of, implies right to cut, 87 
 
1123 
 
 ' index: 
 
 GROINS. See Sea- Walls. 
 
 GROUSE, 
 
 driving away, when actionable, 10 
 GUARDIAN, 
 
 right of, to custody of childi-on, 894 
 
 GUEST, 
 
 injuries to, from dangerous premises of host, 188, 189 
 
 GUIDE BOOK. See Dieectoet. 
 
 GUN, 
 
 accidents from, 416, 417 
 
 injuries from bursting of, when actionable, 26, 27 
 liability for accidents arising from use of, 380 'ssi 
 firer of, is liable for fire caused by, 248 ' 
 
 firing of, near decoy-pond a nuisance, 162 
 letting off, on or near highway illegal, 171 
 false warranty of, 835 
 
 GUNPOWDER, 
 
 liability for injuries caused by explosion of, 252 
 injuries to servants from explosion of, 187 
 .keeping of, when a public nuisance, 218 
 
 HABEAS "CORPUS, 
 
 to test the validity of a commitment by judge of inferior court 643 
 to test the legality of a commitment by justices, 718, 719 ' 
 
 HACKNEY COACHMAN. See Cabmas. 
 
 HARBOUR. See Pom. 
 
 HARES. See CoMMOjf. 
 
 HAY, 
 
 fires arising from heating of, 249, 250 
 
 HEALTH, 
 
 overcrowding houses, or carrying infected persons through public streets, so as to 
 endanger, is a public nuisance, 218 
 
 HEDGES. See Eehces. 
 
 HEIR-AT-LAW, 
 
 when may sue for injuries to inheritance, 923, 924 
 when may maintain trespass on land descended, 304 
 cannot maintain trespass before entry, 289 
 may sue for detention of title deeds, 454. 
 right of, to fixtures, 241, 242 
 
 HIGHWAY. See Eootpath — Statuioet Compensation — Sbevetor op Highways 
 
 TuBHPiKB Road — Wat. 
 title to soil of, 282, 283 
 
 if created under Enclosure Act, 283 
 title to waste land adjoining, 283, 284 
 
 user of land of, between carriage and footway by tenants of adjoining houses, 224 
 title to land adjoining, between road and fence, under Enclosure Act, 309 
 soil of, remains in owner, subject to right of passage by public, 269 ^ 
 right of persons, cattle, &o., to pass along, but not to remain, 181 
 right of free passage by carriages, &c., along, free from interruption, 174 
 use of locomotive steam engines on, 172 
 
 right of, prim A facie extends to whole space between fences, 225, 226 
 occupation roads are not, 222 
 
 roads up to houses, and nowhere else, may or may not be, 222, 223 
 of necessity, where no other road exists, 224, 225 
 dedication of, 220-224 
 
 c c c 2 
 
1124 INDEX. 
 
 niGUWAJ— continued. 
 
 dedication of, may be inferred from acts, although no intention to dedicate exists, 
 
 221 
 obstruction of, once a year, &o., or by bar, &c., is inooosistent with dedication, 
 
 221, 222, 223 
 dedication of, tliongh owner not known, 222 
 
 notice of intention to dedicate to be given to surveyor of highway, 226 
 no particular time of enjoyment necessary to prove dedication of, 222, 223 
 tenant or lessee cannot dedicate, 223 
 
 but consent of landlord may be inferred under certain circumstances, 223 
 dedication of, over land vested in commissioners, or others, by statute, for a 
 
 particular purpose, 223, 224 
 once dedicated to public, is dedicated for ever, 224 
 limited dedication of, 309 
 dedication of, subject to right in adjoining owners of depositing goods thereon, 
 
 225 
 limited dedication of, e.g., for all purposes except carriage of, coals, or subject to 
 
 certain inconveniences and risks, e.g., gates, door steps, cellar flaps, open areas, 
 
 &c., 173, 174, 224 
 liability of parish to repair, unless washed away by sea, or relieved by order of 
 
 magistrates, 226, 227, 228 
 proof of, by evidence of repairs by parish, 225 
 liability to repair, by adjoining owner, 284 
 liability to repair ratione clausurce, 227, 228 
 repair of, by district highway board, 228 
 remedy for non-repair of, by indictment against the parish, 741 
 repair of railway bridges over, and their approaches, 184 
 repair of damage done to, by railway during construction, 184 
 obstructions in, by erecting gates, building bridges, houses, &c., 174 
 obstruction, of, by gates, when legal, or not, 224 
 railway gates across, are not actionable, 735 
 obstruction to, when actionable at suit of individual, ^01 
 
 liability for oljstructions of, by persons, or public companies who employ inde- 
 pendent contractors, 204, 205 
 trespasses on, by deposit of rubbish, building bridge, &c., 269, 270 
 removal of obstructions to, when legal, 198 
 gates placed across, may be cut down, 198 
 cattle lying in, 198, n. 
 cattle straying on, 226, n. 
 
 cattle straying from, when distrainable as trespassing, 266, 267 
 obstructions in, must not be recklessly ridden, or driven over, 401 
 obstruction^ of, by boughs of trees, &o., a public nuisance, 21« 
 trees overhanging, may be cut, 196 
 
 penalties on playing games on, obstruction of, or allowing filth to flow on, 171 
 action or indictment for obstructions in, S3 
 penalty for encroachments, deposit of rubbish, &o., on, or removing turf from , 
 
 nuisances in, whether highway be for carriages, horses, or foot-people, are indict- 
 able, 219 o ' . i- r ; 
 
 obstruction of, by corporation or railway company, is indictable, 220 
 
 when crossed by canal. See Canal. ■ 
 
 when crossed by railroad. See Railway. 
 
 fences between, and canal, 186. 
 
 ditches of, choked up, are a public nuisance, 218 
 
 ruinous houses adjoining, are a publio nuisance, 218 
 
 railway running alongside of, how far actionable, 735, 737, 738 
 
 nniaances adjoining, dangerous pits and excavations, steam-engines, lime-kilns, 
 
 lettmg off fireworks, &c., 171, 172 > s . i 
 
 negligent quarrying stone near, is indictable, 172 
 offensive manufactures adjoining, are a public nuisance, 218 
 collection of crowds in, is a public nuisance, 218 
 obstruction of, by beer barrels, logs of tiro.ber, unloading coals, &c., when a public 
 
 nuisance, 218, 219 o , j r 
 
 coal holes in, vvhen legal, 218, 219 
 openings in, when legal, 219 
 steam engines on, are a public nuisance, 219 
 telegraph posts, or tramways on, are indictable, 225 
 carriage of infected persons along, is a public nuisance, 218 
 unfenced sewers, ditches, or areas alongside of, 172, 173 
 obstructions in, or near, legalised by prescription, must not be increased, 173, 
 
INDEX. 1125 
 
 HIGHWAY— conimucA 
 
 injuries from falling into unfenced holes, areas, &e., adjoining, 169, 170, 190 
 conditional user of, by public, may be stopped, if conditions not complied with, 
 
 de-yiation from, if highway stopped, 220, 221 
 
 stoppage of, gives right to pass over adjoining land, 297 
 
 deviations from, if highway out of repair, 308 
 
 proof of, 309 
 
 closing of, under an Act of Parliament when-actionable, 736, 737 
 
 declarations for injuries from unfenced holes, &c., adjoining, 207 
 
 mandamus to restore, if illegally diverted by railway company, 1070 
 
 injunction against obstruction of, must be at suit of Attorney-General, 225 
 
 HIGHWAY BOABD, 
 
 powers and duties of, 228 
 
 HISTOEIES, 
 
 copyright in, 41 
 
 HOPS, 
 
 warranty on sale of, where bags marked with name oi grower, place of growth, &c., 
 856, 857 
 
 HORN, 
 
 blowing of, when a nuisance, 167 
 
 HOBSES. See Cattle — Glanders — Hounds. 
 
 liability for accidents arising in riding or driving, 381 
 Injuries from unskilful or neglectful management of, 19, 20, 25, 26 
 unavoidable accidents arising in management of, 418 
 liability for leaving unattended in a street, 416, 421 
 liability for negligent attendance of, 22 
 negligence in breaking in in the street, 389 
 exposure of glandered, is a public nuisance, 218 
 ' implied authority to warrant by servants of horse-dealer or private person, 862, 
 
 863 
 what is unsoundness in, 868, 869 
 
 public notices on sale of, are binding on purchasers, 868 
 injuries to, which have escaped, through defect of fences, 155 
 Injuries to hired, who responsible for, 428, 429 
 injuries to, by dogs, 23. &e Dog. 
 wrongful detainer of, cannot claim the expense of his keep in mitigation of 
 
 damages, 464 
 lien for training or keeping, 439, 440 
 
 HOSPITAL, 
 
 mandamus to master of, 1067 
 
 HOST. 5cc Guest. 
 
 HOUNDS, . - 
 
 damage caused by horses following, 313, 314 
 
 HOUSE. See Aib—Boundabt Walls— Building — Company— Fibe— Fixtuebs— 
 Hbalth—Light—Pabtt Walls— Support— Tenant. 
 possession of key of, effect of, 303 
 negligence in pulling down, 179 
 
 non-repair of, by joint tenants or tenants in common, 180 t 
 non-repairof adjoining, remedy for, 180 " , „„ „, 
 
 repair of, when upper and lower stories belong to different people, 93, 94 
 injuries from things falling from, into' the street, 169 
 overhanging cornice of, 285, n. ^ x r loo ion 
 
 injuries to visitors, servants, or family, from dangerous state ot, 18», 1S9 
 alterations in, by tenant, are actionable, 8 
 
 HOUSE BOTE. See Estovers. 
 
 HOYMAN, 
 
 is a common carrier, 467 
 
 warrants the safety of goods earned, 430 
 
 loss of goods by, 494 
 
 HUNDRED, J V w 088 
 
 liability of, for damage caused by not, 288 
 
1126 INDEX. 
 
 HUNTING. See Hound?. 
 
 HUSI3AND. See Chilb ken— Father — Wife. 
 
 liability of, for torts committed by wife before or diu-ing coyerture, 936, 937 
 
 and must therefore be jointly sued with her, 936, 937 
 
 except in case of divorce, judicial separation, or a protecting order, 937 
 of executrix or administratrix is liable ior waste, 937 
 liability of, for trespass by wife, 265, 266 
 not liable for filse representation by wife, 857 
 not liable for acts of wife after a judicial separation, 885 
 
 but is for her subsistence, unless alimony duly paid, 886 
 when may sue for injuries to real property or chattels real of the wife, 920, 921 
 
 when for injuries to person, or personal property, 921, 922 
 may join causes of action accruing to himself with causes accruing to himself and 
 
 wife, 955, 956 
 when to sue alone, and when wife to be joined in actions of replevin, 555 
 cannot sue his wife for false representation that alie was single, 34 
 right of, to restitution of conjugal rights, 881, 882 
 right of, to judicial separation on ground of adultery, cruelty, or desertion, 882 
 
 cruelty, what amounts to, 882 — 884 
 
 desertion, what amounts to, 884, 885 
 when entitled to dissolution of marriage, 886 — 890 • 
 
 if wife a lunatic, 887 
 
 wilful neglect, &c., conducing to adultery of wife, 888 
 
 connivance or toleration of fidultery, 888, 889' 
 . condonation of adultery, 889, 890 
 
 competency of, to give evidence in cases of adultery, 898, 899 
 may claim damages in Divorce Court from co-respondent, 900 
 
 application of the damages by order of the Court, 905 
 
 IDIOCY. See PEEsnaiPTiON Act — Lunacy. 
 eifect of, under Statute of Limitations, 276 
 
 ILLNESS. -See Witness. 
 
 IMPRISONMENT. See Debt— False Imprisonment. 
 each continuance of, is a fresh cause of action, 971 
 for non-payment of penalties, 201 
 for debt is abolished, 662, n. 
 
 with certain exceptions, 709 , , 
 
 INCLO^URE ACT. See Enolosuee Act. 
 
 INCUMBENT. &e Eectoe. 
 
 is entitled to possession of church and churchyard, though freehold in rector, 
 
 278, 279 
 injunction against, to prevent waste, 260 
 
 INDECENCY. See Arrest— JBathins. 
 
 by exposure of person, when a public nuisance, 219 
 
 INDICTMENT, . 
 
 against parish for noa-repair of highway, 227, 228, 741 
 for public nuisances, 218,' et seq. 
 for nuisances arising from gasworks, 200 
 for obstruction in thoroughfare, 33 
 for the obstruction of a right of way, 146 
 for nuisances in carriage-way, bridle paths, or footpaths, 219 
 against corporation or railway company, 220 
 for placing telegraph posts on highway, 225 
 for placing tramways on highway, 225 
 for negligent quarrying of stone near highway, 172 
 
 for obstructions in navigable rivers, by wharfs, sunken vessels, &c., 175, 226 
 for abduction of unmarried girls or women, 915 
 for conspiracy, 611 
 for forcible entry, 269 
 for non- repair of ruinous house, 178 
 
 for fraud, talse representation, or obtaining money or goods by false pretences, 
 872—874 o ./ & J r I 
 
 for libel or slander, 831 — 833 
 costs on, 1022 ^ 
 
INDEX. 112'J 
 
 ^N^jOTUmT -continued. 
 tor pound breach, 540 
 
 preferring of unfounded, when actionable or not, 633, 634 
 malicious, is actionable, 621 
 
 INFANCY, 
 
 effect of, under Statute of Limitations, 276 
 
 INFANT. See Children— Peesobiption- Act. 
 when liable in tort, 962 
 
 ^^*!'!^*'\°'' '^?'' ^1^ *°''*^' ^^"^^^ ^^^^'"^ *'>s <=a,use of action is substantially founded 
 on a breach of contract, 938, 939 otauKunj, lounaea 
 
 not liable for false representation, 34 
 
 _ e.g., that he is of age, &c., 857, 858 
 
 IS not liable as an innkeeper, 495 
 
 when may sue for conversion of goods in his possession, 362 
 
 property of, in reputed ownership of bankrupt, 351 
 
 Illegitimate, is not entitled to benefit of Lord Campbell's Act 408 n 
 
 injuries to, from negligence, 20, 21 > • ■ 
 
 injury to, while travelling by railway, 383 
 
 injuries to, while trespassing on railway, or climbing on a cart, 401 
 
 may sue by jjrocAem ami, 923 
 
 INFECTION. See Cattle-Glandbbs-Health. 
 INFRINGEMENT. See Patent. 
 
 INJUNCTION. See Bankeupt— Bin op Peace. 
 In Equity — 
 against continuance of wrongful act, 1029, 1030 
 
 instances of, 1029, 1030 
 to avert threatened injury, 1030 ' 
 * against commission of trespass, 315 — 317 
 
 to restrain disturbance of graveyards, &c., 1080, 1081 
 to restrain infringement of access to public river, 1030, n. 
 to restrain infringement of patent right, 52, 1031 
 
 damages for, 1029 
 to restrain infringement of copyright, 1031, 1032 
 lectures, private letters, m8S.,maps, dramatic or musical compositions, sculpture 
 paintings, designs, &c., 1031, 1032 r , 
 
 to restrain sale of chattels, 1032 
 
 to restrain sheriff from selling landlord's fixtures under an execution, 656 
 to restrain execution on goods pf company in liquidation, 653 
 to restrain action or execution against a railway company that has filed a scheme 
 
 of arrangement with its creditors, 653 
 to prevent disturbance of rights incident to the possession of land, 76 
 to restrain the diversion of water, 77, 1033 
 
 to prevent' obstruction to repair of watercourse on another man's land, 77, 78 
 to prevent obstruction to light, 157, 158 
 
 to prevent disturbance of easements granted by parol, 156, 157 
 to prevent disturbance of right of support, 158, 159 
 against fouling stream or canal, burning bricks, smoking chimneys, offensive 
 
 trades, interference with light, or storage of infiammable materials, 215 
 against noise, bj' ringing bells, 215" 
 against public nuisances, created under statute, in excess of statutory powers or 
 
 otherwise, 217, 218 
 against public nuisances, by Attorney-General, 217, 218 
 or private persons, if individual damage sustained, 217 
 for obstruction of highway must be in name of Attorney- General, 223 
 to prevent waste, 258 — 262 , : 
 
 against tenants or lessees fr'om digging minerals, injurious cultivation, altering 
 
 premises, &c., 258, 259, 260 
 against tenants for life, or lessees for lives, mortgagors or mortgagees in posses- 
 sion, 259 
 against one tenant in common at suit of another, 259, 260 
 against incumbent or bishop, 260 
 at suit of infant in ventre so, mere, contingent remainderman, or executory devisee, 
 
 260 
 if committed by stranger, 261 
 
 although the title is in dispute, 261 
 i£ permissive only, 261 
 if all the injury has been done, 281 
 
1128 INDEX. 
 
 INJUNCTION— eoreimwec?. 
 
 at suit of one partner against another, 261 
 
 if acquiesced in, or delay in coming to the court, 261, 262 
 
 at suit of one party, for himself and all otliers interested, 262 
 
 to restrain a company from exceeding its statutory powers, 1030 
 
 to prevent unnecessary injury from the execution of statutory powei-s, 769, 
 770 - ■■ 
 
 to restrain public boards, commissioners, &c.,.from doing acts in excess of statu- 
 tory powers, 770, 772 
 
 to restrain nuisances created in the exercise of statutory powers, e.g., the pollu- 
 tion of a river by sewage, 770, 771 
 
 to restrain commissioners, &c., from creating a nuisance in executing drainage 
 works, 7i5, 7i6 
 
 to prevent misuse by companies and others of land acquired under statutory 
 authority, 771, 772 _ " 
 
 to restrain exercise of statutory power till a condition precedent, e.g., the pay- 
 ment of compensation has been complied with, 772, 773 
 
 to restrain waterworks company from taking stream tUl compensation paid, or 
 security given, &c., 746 
 
 to restrain an application to Parliament for a private act, 772, 773 
 
 to prevent fraud, 874, et seq. < 
 
 to prevent the fraudulent use of trade-marks, names, &c., 8, 874 — 878 
 unless the trade-mark itself contains a material misrepresentation, 878, 
 
 against bailee, to prevent his parting with goods marked with a counterfeit trade- 
 mark, and against bailor, "to prevent action for non-delivery, 876 
 
 to prevent manufacture of counterfeit labels, 876, 877 
 
 to restrain action for palls on the ground of false representation or fraud, 841 
 
 against magistrates, corporations, or commissioners, 217 
 
 interlocutory, for protection of property, 218 
 
 not granted merely to protect title, 218 
 
 not granted to stop a mere temporary nuisance, 164 
 
 will not be granted when the act complained of has been done, and nothing 
 remains but to assess the damages, 1034, 1035 
 
 on application for, legal right of applicant to be decided by court or jury, but aa 
 issue may be directed, 1033 — 1035 
 
 against railway companies to enforce compliance with Railway and Canal Traffic 
 Act, 513—516 
 
 to enforce right of stoppage in transitu, 1032 
 
 to prevent injury from the effects of intimidation by trades unionists, 11 
 
 against publication of libel, 777, n. 
 
 to restrain railway company from setting up plea of accord and satisfaction. 962. 
 963 
 
 against paynient of alimony pendente lite, 882, n. 
 
 against patentee from threatening legal proceedings, if he has no intention to 
 follow them up, 817, u. 
 
 against prospective damage, 215, n. 
 
 suspension of, in certain cases, 216 
 
 enforcement of, by sequestration, 216 
 
 what acquiescence wiU, preclude grant of, 216, 217 
 
 where land haa been purchased with knowledge__df existing nuisance affecting 
 
 , it} Axi 
 although plaintiff is more injured by others than by defendant, 217 
 
 effect of delay in application for, or acquiescence in the wrong complaiued of, 
 
 costs on, 1022, 1027 
 
 under Eailway and Canal Traffic Act, 1022 
 in County Court, 952 
 ' At Common Law — 
 
 notice of claim for, may be endorsed on writ of summons, 1035 
 
 but cannot be pleaded to, 1035 
 or claimed, ex parte, after commencement of action, 1035 
 to compel a wrongdoer to pull down a building which interferes with rieht to 
 
 light, 1035, 1036 ° 
 
 not granted in actions of ejectnlent, 1036 ' 
 to restrain infringement of patent right, or copyright, photographs, &c.,.1036, 
 
 against erecting a jetty in a navigable river, 282 
 y.. • J^iy.P'^ooeedine in disobedience to, isvoid, and ngiptiea liable to attachment, 1037 
 
 INN, 
 
 obstruction of access to, along highway or navigable river, is a tort,"201, 202 
 
INDEX. 1129 
 
 INNKEEPER, 
 who is, 495 
 duty of, to provide slielter, &o., for guests, i9i, 495 
 
 who are guests, 497, 501, 502 
 duty of, to protect guest from robbery, 496, 497 
 
 unless committed by guest's own servants or friends, or by liis default, 497, 
 493, 501 ■ ■ 
 
 or the guest takes upon himself the exclusive charge of the goods, 499 
 not absolved from liabiUty by delivering the key ot his bedroom to guest, 497, 
 
 499 
 liable for all goods committed to his charge, though placed outside the inn, 450, 
 
 499 
 not liable for accidental fire, 500 
 
 nor for injuries to guest's horses from horses of other guests, 500 
 limitation of liability of, by statute, 500 
 lien of, 438, 441 - 
 
 on goods but not person of guest, ,502, 503 
 may retake goods on which he has a lien on fresh pursuit, 503 
 cannot sell horse of guest for the expense of his keep, except in London, 450 
 cannot rid himself of public duty imposed upon him by providing that he shall 
 
 not be responsible for the luggage or goods of guest, 473 
 declaration against, for loss of goods, 507, 508 
 damages recoverable in actions against, 511 
 
 INSPECTION, 
 
 of report of railway officials and medical men to the company, and generally, 
 962, n., 963, n. 
 
 INSPECTORS. See Salmon. 
 
 INSURANCE. See Policy. 
 
 effect of, on actions for negligence, 422, 423, 1000, 1001 
 
 fact of, does not take away right to sue for injuries from waste caused by fire, 
 negligence, riot, &c., but plaintiff sues as trustee for insurer, 253, 258 
 
 INTEREST. See Judses — Jitstioes — Sheriff. 
 
 INTERPLEADER. See Bailee. 
 
 protection by, to sheriff, 653 — 656 
 
 does not apply to claims for rent, 654 
 
 is available for execution creditor as well as sheriff, 655 
 
 right of, to bailee, where several persons clS-im goods in his possession, 4S5 
 
 order in case of, made without jurisdiction, but without objection by parties, is 
 
 valid, 954 
 protection to persons by, in case of mandamus, 1076 
 
 INTERROGATORIES, 
 
 in action for malicious prosecution, 628, n. 
 ■ in cases of copyright, 41, n. 
 in patent oases in Chancery, 1031, n. 
 
 INTIMIDATION. See Menaces. 
 
 injunction to prevent, by trades-unionists, 11 
 
 IRON, . , . , .,,1 171 
 
 manufactory of, adjoinmg highway illegal, 171 
 
 IRRIGATION. See Watbk. 
 
 JEWELLER. ^. „ , .., ,., 
 
 negligence of, in execution of work, 402, 403 
 
 JOBMASTER, 
 
 U.u!iir^S^^n::o"lryZi let out with horses to a third pei.on, 387 
 
 JOINDER. See Action. 
 
 JOINT-STOCK OOMPANy. See Oompany-Shareholder^Shakes. 
 duty of, to register shareholder, 15 
 
1 130 INDEX. 
 
 JOINT-TENANTS. &e Paktneks. 
 
 of deeds or chattels, who entitled to possession of, 451 
 cannot sue co-tenant for detention of goods, 469, 460 
 rights of survivor of, 919 
 one may distrain unless others dissent, 524 
 avowries by, for distress made by agent or bailiff, 559 
 possession of, effect of, under Statute of Limitations, 275 
 engaged in wrongful act are jointly and severally liable, 254 
 of chattel should join in actions for negligence, 411 
 each of several, may sue wrong-doer for detention of chattels, 454, 455 
 * should join in actions for conversion of property, 364 / ~ 
 
 must sue jointly for injuries to land, 70, 928 
 e.g., for waste, 254 
 
 for nuisance, 20.3 
 
 for injury to reversion, 290 
 
 JOURNEY'S ACCOUNTS, 
 writ of, 972 
 
 JUDGE. See Coubt of Kecord — Slander. 
 
 not responsible for acts done in course of judicial duty, 635, 636 
 e.g., for slander, in reference to a matter before him, 637 
 
 but is for slander in respect of matters into which he has no jurisdiction 
 to inquire, 637 
 disqualification of, on account of interest, 638 
 is liable for acts done without jurisdiction, 637, 638 
 unless he hsts primd facie jurisdiction, and the facts depriving him of it are not 
 brought to his knowledge, 638, 639 
 who is a, so as to be exempt from liability to actions, 641 
 
 duties of, cannot be delegated to a clerk, and if they are, the clerk is liable for any 
 illegality committed, 641, 642 
 but not for bis ministerial acts, 643, 644, 664 
 proceedings of inferior, without jurisdiction, may be removed by certiorari into 
 
 ,Court of Queen's Bench, and quashed, 642 
 validitj- of commitment by inferior, may be tested by habeas corpus, 643 
 
 JUDGMENT. See ExEOUTioif. 
 
 recovered, when a bar to a second miction for same cause in the same or another 
 
 Court, 965—969 
 eflect of foreign, in rem, 965, n. 
 effect of, in altering the property, 374, 375 
 effect of, in actions for conversion, in altering the property in the goods converted, 
 
 360, 361, 368, 369, 969 - ^ 
 
 how proved, 675 
 costs in action on, 1020, 102] 
 
 JUDGMENT CKEDITOK, 
 
 no duty imposed on to assist the sheriff to execute a writ of execution, 645 
 remedy for, by interpleader, where he has interfered in an execution, and ren- 
 dered himself liable to an action, 655 
 
 JURISDICTION, 
 
 when obtainable by consent, or non-objection of parties to the proceedings, 955 
 for acts done without, judges are liable, 637, 638 
 
 JURYMAN, 
 
 not liable in tort for ^ wrong indictment or wrong verdict, 636 
 
 JUS TERTII, 
 
 when bailee may set up, 461 
 
 may be set up by pawnee against pawnor who has obtained goods without title, 
 
 442 
 when carrier can or cannot set up, in actions against him for loss of or damae? to 
 
 goods, 505,508, 510, 511 " -■ 
 
 may be set up, under plea of not possessed, 458 
 wrongdoer cannot set up, 372 
 
 JUSTICES. See Certiorari — Constable — Judges — Magistrates— Quarter Ses. 
 SIGNS— Slander. 
 jurisdiction of, at Quarter Sessions, 682 — 684 
 under particular statutes, 684 
 e.g., to ordei- accommodation works to be made by railway or other com- 
 pany, 756, 770 - 
 
INDEX. 1131 
 
 JUSTICES— co»i«Jftuc(i. 
 
 cannot act judicially out of their county, but may miniBterially, 684 
 jurisdiction of, does not depend upon truth or falsehood of the facts, or the suffi- 
 ciency or credibility of the evidence, 684 
 may act, if residing in adjoining count}', 685 
 concurrent jurisdiction of, in boroughs, 685 
 borough, jvu-isdiction of, under Municipal Corporation Act, 685 
 power of summary conviction by, 685, 686 
 
 for felony, 686 
 jurisdiction of, to inquire into a case which has been Bubstantially decided pre- 
 viously in the County Court, 965, 966 
 power of, to issue search warrant, 686, 687 
 cannot act if interested, 688 — 690 
 
 but may act in matters relating to poor lavv, local board of health, &c., 
 although rated to the poor, or to the fund of local board, 689, 690 
 and may adjudicate on complaint or prosecution ordered by themselves in 
 
 the discharge of a public duty, 689 
 and may commit for contempt of Court, 689 
 
 what amount of interest disqualifies, 690 
 •wrongful detainer by, to answer charge not then made, 690 
 cannot force a settlement upon complainant under threat of conviction, 690, 691 
 
 or remand a person without inquiring into charge, 691 
 acts of, though not duly qualified, are not void, 691 
 may adjourn hearing if defendant or prisoner misled by defect in summons, &c., 
 
 or by any variance between summons, &c., and evidence, 692 
 commitment by, must be in writing, 691, 692 
 
 and for a definite period, 691, 692 
 
 statutory forms of, 602 , 
 
 of prisoners for trial, depositions how to be taken, 692, 693 
 not liable for correctness of charge, or for erroneous judgment, 693 
 convictions by, on their own view, 693 
 must have information or charge to give them jurisdiction, 693, 694 
 
 and the information must be on oath to justify a warrant to arrest, 693, 694, 
 695 
 but not necessarily on oath to justify a summons to appear, 694 
 
 requisites of information or complaint, 694, 695 
 within what time to be made, 695 
 proceedings thereon, service of summons, &c., 695, 696 
 drawing up convictions or orders, 703 
 power of, to issue warrants to apprehend material witnesses, 696 
 cannot hear a complaint before time allowed by summons has expired, 696 
 must have soTrae evideiioe of offence charged to j ustify conviction, 696, 697, 699, 700 
 cannot justify a commitment for one offence by a conviction for another, 696 
 
 nor alter the charge to agree with the evidence, 696 
 must hear the accused, 696 
 
 and all the evidence, 1056 
 cannot convict on a charge not brought before them, 697 
 
 but when once a charge is laid, may compel its being proceeded with, 697 
 cemvictions by, in excess of jurisdiction, 697, 698 
 ouster of jurisdiction of, by claim, of title, 698, 699 
 
 if there is colourable ground for it, and the claim itself is legal, 698, 699 
 how far protected in the exercise of a discretioiiary power, 700, 701 
 cannot refuse to act because they think the law unjust, 700 
 invalid convictions by, upon by-laws, 702, 703 , . ^, . ^, „ 
 
 warrant, commitment, or conviction by, must show their authority on the face of 
 
 them, 703 '" ,. , . . ^„ < 
 
 and describe correctly the offence or subject-matter ot complaint, /04 
 and single out the offender, 704, 705 . . ,. . , , . 
 
 and show that the offence was committed within the jurisdiction of the jus- 
 orders and adjudications by, must show jurisdiction on the face of them, e.g., that 
 
 the act was committed in the county, and the adjudication by justices acting 
 
 in and for the county, &c:, 706, 707 x , • ^, 
 
 adjudications, &o., of, under statute, must show all things necessary to bring the 
 
 case within the statute, 706, 707 
 statutory forms of commitment by, 707 
 
 immateriality of mere surplusage, '07, 708 
 are protected by conviction until quashed, 708 
 disU-ees or oommitment by order ol, 708—710 
 
 fur non-payment of poor-rate, 709, 710 
 
 for non-payment of costs by complainant on dismissal of charge, 710 
 
1132 INDEX. 
 
 JUSTICES— continacrf. 
 
 cannot commit for an indefinite period, 709 
 commitment by, for non-payment of money, 709 
 appeal from,, to Quarter Sessions, 710 — 712 
 
 on ground of excess of jurisdiction as well as erroneous judgment, 711, 725 
 orders, &c., of, made without or in excess of jurisdiction, may be treated as void, 
 
 and action brought, although right of appeal exists, 711, 725 
 must generally stay execution pending appeal, 711, 712 
 
 except in bastardy cases, 711, 712 * 
 
 appeal from, to Superior Court on case stated, 712, 713 
 
 decisions of, at Quarter Sessions which cannot he reviewed by certiorari or man- 
 damus, 714 
 committal by, for contempt of Court, 714 
 quashing convictions, &c., of, hy certioraH, 713 — 718 
 
 proof by affidavits, 716, 717 
 
 amendment of orders, &c., on return to, 717, 718 
 legality of commitment by, may be tested by writ of habeas corpus, 718, 719 
 may order expense of county litigation to be defrayed out of county funds, 719, 
 
 720 
 power of, to give costs, 720 
 liability of, for acting maliciously, and without reasonable cause, but not for 
 
 erroneous judgment, ignorance, or negligence, 686 
 liability of, for acts' done without or in excess of jurisdiction, after conviction 
 quashed, 687 
 
 unless they have a primd facie jurisdiction, and the facts depriving them of 
 jurisdiction are not brought to their notice, 687, 688 
 how far liable for wrongful ministerial acts, 701, 702 
 liable for omission of clerk to make minute of conviction or order, 703 
 exemption of, from liability, wlxere a defective conviction or order has been con- 
 firmed on appeal, 712 
 in actions against, for acts within their jurisdiction, malice and want of probable 
 
 cause must be proved, 723, 724, 725 
 in actions against, for acts without jurisdiction, conviction, &c., must first be set 
 aside, 723, 725 
 
 except where they have acted corruptly, or in abuse of their office, 724 
 may object to being sued in the County Court, 725 
 actions against, must be brought within six months, 726 
 
 time how Calculated, 726 
 venue local in actions against, 597 
 are entitled to a month's notice of action, 726, 727 
 
 requisites of notice, 728 
 
 time how calculated, 728, 729 
 tender of amends by, 728 
 
 liability of, where one justice has committed, and another signs- the warrant, 729 
 plea of not guilty by statute in actions against, 730 
 
 evidence in actions against— .pfoof of malice and want of probable cause, 730, 731 
 damages in actions against, 733 
 costs m actions against, 1019 
 how compellable to act, 719 
 prohibition to, 1038 
 
 KEY, 
 
 possession of, not evidence of possession of house, 303 
 
 LABELS. See Injunction. 
 
 LAKE, 
 
 title to soil of, 282 
 
 grant of several fishery in, 282, n. 
 
 LAND. See Suppokt, 
 
 title to, by long possession, 271 — 278 
 excavations on one's own, how far lawful, 9 
 
 LANDLOED. See Distress— Entky-Lessor— Master— Kevebsionek— Tenant 
 when responsible for nuisance on land demised, 203, 204 
 liability of, for nuisance, although he has parted with the land, 202 
 when liable or not for nuisance on demised premises, from dangerous excavations 
 fall of ruinous buildings, &c., 211 ' 
 
INDEX. 1133 
 
 T-A-NBhOnT)— continued. 
 
 not liable for repair of drains or sewers on land demised, 206 
 
 third pei-sra m'lrs''' °^ '"*"'* demised, as between himself, his tenant, and 
 '°Xma'e''^311 °" ^*°'^ demised, but must make compensation to tenant for 
 
 may sue for conversion of timber or fixtures severed from inheritance, 370 
 IS not prejudiced by the acquiescence or admissions of his tenant 154 
 acquiescence of, in dedication of highway, when to be inferred 223 
 
 ii^'AK""ii'oPnT^°®'^ ^^ '"^ *^"*"' "°' oPPasiiig "S3 of easements, &c., 
 
 -Li-4, XJ.O) IltJ, 120 
 
 acquiescence of, in user of easements, may be presumed in certain cases, 115, 120 
 IS entitled to his rent in priority to an execution, but not to an extent, 656, 
 
 007, 665 
 not liable to mortgagee of tenant's goods for not returning to him instead of 
 
 tenant surplus goods after distress, although he has had notice to do so, 
 
 IS entitled, as against mortgagee under a bill of sale of tenant's goods, to move 
 
 than a year's rent in case of tenant's bankruptcy, 533 
 ''*sKK*^o<!°/' *° P^^'son ■>^hom he directs to distrain, if distress be wrongful, 
 
 LEASE. See Leases. 
 
 right of lessee to deed of, although term expired, 337 
 
 assignment of, for benefit of creditors, vests lease in assignee, and renders him 
 liable, if he has acted, for the rent, 344 
 
 LEASES, 
 
 are not "goods or chattels," within reputed ownership clause of Bankruptcy 
 
 LEAVE. See Injunction — Licence. 
 
 LEAVE AND LICENCE. See Plea. 
 
 plea of, in actions for trespass to land,, 293, 294 
 evidence under plea of, 151, 306, 307 
 
 LECTCrEES, 
 
 unpublished, are the property of the lecturer, 1 
 
 copyright in, 43 
 
 injunction against publishing, without author's consent, 1031 
 
 LEGAL PROCESS. See Execution. 
 
 LESSEE. , &e Lease— Tenant. 
 
 is liable to lessor for removal of soil, 367 
 
 right of, to minerals, 268 
 
 with right of renewal, how to obtain compensation for land taken under statutory 
 
 power, 752 
 right of pre-emption of, to superfluous land taken under statutory authority, 761, 
 
 762 
 duty of assignee of, to pay rent, perform covenants, &c., 15 
 duty of, to obtain landlord's colisent to assignment, 15, u. 
 for lives, injunction against to prevent waste, 259 
 
 LESSOR. See Landlord — Reveksionbr — Tenant. 
 may sue lessee for removal of soil, 367 
 
 LETTERS. 
 
 property in, 337 
 
 posting of, ia prima facie evidence of their receipt in due course, 818 
 damages in actions for detention of, 463 
 
 injunction against publishing, without leave of writer or his personal represen- 
 tative, 1031 
 
 LEVEL OROSSING-S. See Railway— Railway Company. 
 accidents at, 184, 384, 385 
 
 LIBEL. See Costs— Slander. 
 
 distinction between, and slander, 11 i— ITS 
 
 publisher of, cannot defend himself by giving up the name of the ntterer, although 
 such utterer may be the plaintiff, 776, 817 
 
1134 * INDEX. 
 
 LIBEL — contirmed. 
 
 what writings are actionable as, 776 — 778 * 
 
 anything tending to malce a man ridiculous or contemptible, 776, 777 
 but not to say that a man has acted in bad taste, &c., 777 
 or mere-puffs between rival tradesmen, 777, 778, 796 
 illegality of the transaction to which the libel relates is an answer to action for, 
 
 'but not fraud vltra the transaction, 778 
 malice is implied in, 778, 779 
 privileged communications, i. e., communications fairly made, in the belief of their 
 
 truth, by one person to another in the discharge of some public or private duty, 
 
 whether legal, moral, or social, 779, 780, 787, 790 
 in course of judicial proceedings, 780, 781 
 by military officer on his subordinate, 781, n., 783 
 on opera singer, 5 
 
 petitions to the Crown or Parliament respecting conduct of magistrates, military 
 . or other public officers, 781, 782 
 reports by public officers in the discharge of their duty, e. g., the report by a clerk 
 
 of the peace to magistrates in quarter sessions, 782, 783 
 pastoral letters from clergymen, 783, 784 
 communications to bishop respecting the conduct of a clergyman, 784 
 
 respecting the character of a person proposing marriage, 784, 785 
 
 between friends to prevent an injury, 785, 786 
 
 by persons having an interest in the subject-matter of the communication, 
 e. g., notice of the commission of an act of bankruptcy given by a creditor 
 whose interests are involved, 786, 787 
 reports of auditors, communication of, to shareholders, 780, 814 
 reckless and inconsiderate communications, 787 
 
 answers to inquiries made by plaintiff himself, or by others than plaintiff, in dis- 
 charge of some duty, 787, 788 
 giving characters of servants or governesses, 788, 789 
 imputing incompetence in particular transaction is not answered by evidence of 
 
 geneial competence, 790 
 comments in excess of the privilege, 790, 791 
 
 privileged communications addressed to wrong person by mistake, 791 
 reports of trials, 791, 792 
 
 of proceedings before magistrates, 792 
 
 of speeches in Parliament, 793 
 
 of proceedings at public meetings, &c., 793 
 Parliamentaiy papers, 793 
 by member of House of Commons, 793 
 leading articles, reviews, and criticisms in newspapers, 794 
 remarks by one newspaper, &e., on another, 794, 795 
 criticisms upon handbills and advertisements, 795 
 
 upon sermons or clergymen, 795, 796 
 
 upon the acts of public men, 796 * 
 
 by one tradesman on the goods of another, 796 
 ■- every publisher of, is as liable for as original libeller, 811, 964, 965 
 every fresh publication of, is actionable, 965 
 
 what is publication of, 817, 818 / 
 
 action for, cannot be brought in, but may be remitted for trial to. County Court, 
 
 948 
 consolidation of actions for, 810 
 plaintiffs in actions for, 810, 811 
 defendants in actions for, joint or separate, 811 
 
 corporations, 811, 932 
 declarations for, 811 — 814 
 particulars in action of, 817, n., 826, n. 
 
 plea of not guilty in actions for, and evidence thereunder, 814, 815 
 pjea of apology, and payment into Court in actions against newspapers or other 
 
 periodical publications, 815, 816 
 plea of the truth of the libel, 816, 817 
 pleas of justification, .where several libels are charged in distinct counts, 
 
 960 
 evidence in actions for, for the plaintiff, 817 — 826 
 
 proof of publication, 817, 818 
 
 letters written to a man's wife, or by a man's daughter, &c., 818 
 
 in newspapers, 819 
 
 libellous songs — printed placards, &o., 820 
 
 application of libel to plaintiff, 820 
 
 defamatory sense of words, where meaning doubtful, 820, 821, 822, 823 
 
 of malice, 824 
 
INDEX. 1135 
 
 LIBEL — continued. 
 
 of subsequent libels to prove malice. 823, 824 
 
 of the profession or trade, &o., of the plaintiff, and that the words were written 
 of him as such, 825, 826 
 evidence in actions for, for the defendant, 826—827 
 
 of the truth of the charge or accusation, 826, 827 
 damages recoverable in actions for, 827—829 
 njental suffering, &c., 996, 997, 998, 999 
 
 evidence of apology in mitigation of, 829 
 costs, 1009—1011, 1014, 1017 
 
 of the judge's direction to the jury in actions of, 829, 830 
 arrest of judgment, or setting aside verdict in actions of, 830, 831 
 indictment for, 831—833 
 costs on indictment for, 1022 
 injunction against publication of, 777, n. 
 
 LIBERUM TENEMENTUM, 
 
 effect of plea of, in actions for trespass to Ismd, 292, 293 
 plea of, is no answer to action for assault, 292 
 evidence mider plea of, 271, 305 
 
 LICENCE. See Authokitt — ^Leave and Licence. 
 
 to do an act implies everything necessary to the performance of it, 306 
 
 by wife, child or servant, whether valid against hufeband, father, or master, 306 
 
 to sell furniture, 306 
 
 to enter and remove furniture goods, &c., 306, 307 
 
 to fish, 83, n. 
 
 not claimable by custom, 101 
 to enter house, means by the door only, 306, 310 
 to put goods on another's land, 82 
 to shoot and carry away game killed, 82 
 to out down timber, 83 
 to raise and carry away mines, &c., 99, 100 
 to use way to church, marliet, &c., '97 
 to open a window overlooking land of licensor, 94 
 to go on another's land, effect of, 81, 82 
 to majse drain, &c., on another's land, 83 
 to go on land, implied from grant of trees, crops, &c., 98, 99 
 of right of way, or passage with boats on a canal, 101 
 implied from oivner to finder of goods lost to keep them, unless demanded by 
 
 owner, 320 
 to seize chattels is merely personal, and cannot be assigned over, 534 
 of pleasure extends only to licensee, but of profit extends to servants of licensee, 
 
 294 ' . • 
 
 to enjoy easement or profit 6, 'prendre prevents it from being enjoyed as " of 
 
 right" under Prescription Act, 130, 151, 152, 298, 299 
 to company to enter on laud scheduled cannot be revoked, 747 
 coupled with an interest, or that has been acted on and expense incurred, is not 
 revocable, 134, 151, 156, 157, 293, 294 
 
 otherwise it is, 151 
 is revoked by transfer of property, 307 
 
 revocation of, may be shown under a traverse of the right stated in the declara- 
 tion, 151 
 will not suffice for the creation, but will for the destruction of an easement, 134, 
 
 135 
 ob(;ained by misrepresentation or deceit, or on a misunderstanding, is a nullity, 
 
 307 
 
 LICENSEES. See Patent. 
 LIE. See Falsehood, 
 
 LIEN, 
 
 of agisters of cattle, 440 
 
 of common carriers, 490 — 492 
 
 of rail or steamboat company for charges of food for animals carried, 467 
 
 of publishers, 443 _ _ ..,„,,, 
 
 of agents acting for undisclosed principal, 443, 444 
 
 of factors and brokers, 444, 445, 449 
 
 of bankers, 445 ^ 
 
 of attorneys or proctors, 445— 447 . _ 
 
 of unpaid vendor of chattels who has not parted_^with possession, 437, 438 
 
1136 INDEX. 
 
 IjlEN—continv£d. 
 
 of lenders of money upon deposit of title deeds or other securities, 438, 442 
 
 of innkeepers, common carriers, shipowners, salvors, brokers, auctioneers, &c., 438, 
 441, 442 
 
 of shipwrights, printers, and other workmen, who have repaired or bestowed 
 labour on goods, 438, 439, 440, 442 
 
 of vendor of land sold to railway company for costs of arbitration, 773, n. 
 
 of coachmaker, 441, 442 
 
 of coach proprietors, 491, 492 
 
 of dock companies, 447, 448 
 
 of innkeepers, 502, 503 
 
 of livery-stable keeper, 440 
 
 of pawnbrokers, 438, n. 
 
 of warehouseman, 441 
 
 of ferryman, 441 
 
 of town clerk or steward of manor, 446 
 
 of certificated conveyancers, 447 
 
 of shipmasters or shipowners, 447 
 for freight, 447, "450 
 
 of consignees, 447 
 
 maritime, 439, a. 
 
 particular or general, 438, 442, 443 
 
 may exist, though arising out of an immoral consideration, 438 
 
 by express CQBtract, 447, 448 
 
 by custom of trade or express agreement, 438,-439, 442, 443, 447, 448 
 
 cannot exist it at variance with the express or implied conditions on which pro- 
 perty was received, 440, '441, 443 
 or on goods deposited for a particular purpose, 440, 443, 446, 447 
 
 cannot exist if no work has been done upon chattel deposited, '440 
 or be claimed, generally speaking, for an antecedent debt, 440, 442, 443 
 or for goods sold on credit, 441 „ 
 
 not destroyed, though remedy for recovery of debt be barred by Statute of Limi- 
 tations, 438 
 
 is destroyed if bill or note taken for debt, 441, 446 
 
 cannot be obtained against the will of the owner, 332, 333 
 
 wrong-doer cannot obtain, 375 
 
 wrong-doer cannot create, against true owner, 441, 442, 445 
 
 when a servant may create, as against his master, 441, 442 
 
 is lost by abandonment of possession, 449, 450 
 
 is extinguished by tender of debt or charges due, 450, 451 
 
 put an end to by wrongful sale, 331 
 
 cannot be assigned or transferred, 450 
 
 distinction between, and pledge to secure repayment of money, 450 
 
 seizure by sheriff of property subject to, 450 
 
 statutory power of sale under Merchant Shipping Act in discharge of, 450 
 
 conversion of property by person claiming right of, 331, 332 
 
 effect of liquidation on, 438, n., 446, n. 
 
 must bo specially pleaded, 458, 459 
 
 right of, may be set up under plea of not possessed, 368 
 " false claim or representation ot^ when. actionable, 27, 837, 864 
 
 LIGHT. See AiE — Statbtoey Compeksation. 
 right to natural amount of, 128 
 right to, acquired by unfinished house, 128 
 
 right of, only belongs to houses, and not to open yards or gardens, 153 
 grant of fight of, 94, 95, 96 
 right to, under Prescription Act, 117 
 right to, how obtained by prescription, 125 — 128 
 
 must be over land of another, 126, 127' 
 enjoyment of, subject to rent, 126, 127 
 right to, over land let on lease, 115 
 right to, is determined by the size of the window, exclusive of muUions or other 
 
 partitions in it, 158 
 right of obstruction of, where windows are enlarged, 197 
 what diminution of, is actionable, 153 
 partial obscuration of, for a long period, does not entitle u, person totally to 
 
 destroy, 216 
 right to, suspended during unity of possession, 127 
 right to, is extinguished by unity of owmership, 139 
 right to, destroyed by an obstruction erected by permission of the possessor of the 
 
 easement, 134 ■ 
 
INDEX. 1137 
 
 LIG HT — continued. 
 
 abandonment of right to, by permission given to adjoining owner to do something, 
 
 mvolving expense, which will interfere with it, 156, 157 
 abandonment of right of, by overt acts indicating intention to abandon, but not 
 _ by mere non-user, 135, 136 
 
 right of, when lost by alteration in windows, 136, 137 
 obstruction of, by tenant is actionable, li7 
 
 by reversioner when actionable, 147 
 
 by stranger is actionable, 147 
 interruption in the enjoyment of, 128, 129 
 obstruction of, is a nuisance, 166 
 
 obstruction of, is an injury to the reversioner as well as tenant, 146 
 obstruction to, may be removed though on another's land, 195 
 obstruction of, not allowable under Metropolitan Act, 153 
 declaration for injury to right of, 150 
 
 by reversioner, 150, 155 
 injunction to prevent obstruction to, or interference with, 157, 158, 215 
 what diminution of, sufficient to justify an injunction, 157, 158 
 damages for obstruction of, in Court of Chancery, 158 
 interference with, may be restrained by injunction at common law, 1035, 1036 
 
 LIGHTERMAN, 
 
 is a common carrier, 467 
 
 LIME-KILN, 
 
 is a nuisance, 162 
 
 illegality of, adjoining highway, 171 
 
 LIMITATIONS^ See Statute op Limitations. 
 
 LIONS. 
 
 LIMITATIONS^ See Statute op Limitations. 
 LIONS. ^rce%fiMALS. 
 
 LIQUIDATION, 
 
 title of trustee under, 345, n. 
 
 distinction between, and composition with creditors, 345, n. 
 
 filing petition for, is an act of bankruptcy, 347 
 
 effect of, on distress, attachment, or ej^ecution, 531 
 
 effect of, on execution, 653 
 
 LIQUIDATOR. See Gpfioial Liquidatob. 
 
 LIVERY. See Servant. 
 
 LIVERY STABLE KEEPER. See Hokses. 
 is not a common carrier, 468 
 
 LOCAL BOARD. See Mandamus. 
 by-laws made by, 37, 38 
 
 LOCAL BOARD OF HEALTH, 
 
 cannot pollute river, &c., by pouring in town sewage, 744, 745 
 
 LOCOMOTIVE. See Steam Engine. 
 
 LODGINGS. See Distress. 
 
 keeper of, not an innkeeper, 495 
 
 liability of keeper of, for loss of lodgers' goods, 503, 504 
 
 LONDON. feMETKOPOLIS. , . m. ma mo onn 
 
 statutory powers for removal of dangerous buildings, in, 194, 19b, 199, i.m 
 
 LORD MAYOR'S COURT, 
 ' prohibition to, 1037, 1045 
 
 LORD OE MANOR. See Bill of Peace— Common. 
 is the owner of the soil of the common, 110 
 right of, to hares, &c., on common, 110 
 may sue for injuries to trees, 290 _ 
 
 may sue a stranger for trespass in seizing estrays or wrecks, 3^0 
 right of, to enclose, 104 ' , ^ , ,„ 
 
 right of, to work mines, under an Enclosure Act, 159 
 right of, to game, under Enclosure Act, 83, 84 
 
 D D DD 
 
1138 iNl^l''-X- 
 
 LORD OF MAN O'R— continued. 
 duty of, to hold couH;, iB 
 mandamus to, to admit cdpyholder, 1066 
 
 ^^*^tt1^-deeds carried by an attorney, rocking.torse, bedding, chronometer, &c., 
 
 467 
 LUNACY. See Idioot. 
 
 ■"^^f^not sue or be sued for divorce, but may for judicial seiJaration, 887 
 dangerous, may be arrested, 585, 586 
 statutory provisions for detention of, 686 
 
 A/r A OTTTNT'liiY ■ " 
 
 are "goods' and chatiels " withitl feplited o^vnershijJ clause of BankrliptBy Act, 
 
 350, 355 
 
 MAGAZINE, 
 
 copyright, in articles published in, 41, n. 
 - no copyright in title of, 42 
 
 MAGISTRATES. See Justices. , . ^ ^ . kt^ 
 
 may remand a prisfiner by word of mouth, and without warrant 6/0 
 duty of, to grant certificate of dismissal of case of assatdt, if apphed for, COO, 001 
 injunction against, 217 
 
 ' MALICE. See Mamoious Prosecution. 
 causing damage is actionable, 27, 28 
 not' a necessary ingredient in a tort, 27 
 
 isimpliedinUbelor slander, 778 _ .. . 
 
 in the assertion of a legal right, e.g., in bringing actioh, is iiot actiotiable, bil, bii 
 
 unless brought in the naine of a paiipbr of iitsolvent, 622 
 in levying execution for larger sum than is due; 622, 623 
 in issuing extent at suit of Crbwn, 623 
 in petitioning for adjudication of bankruptcy, 623, 624 
 in causing search or distress warrant to issu^, 617, 620 
 in petitioning for adjudication in bankruptcy, 623, 624 
 ■ in abuse of legal process, 624 
 in detention of judgment debtor, 624, 625 
 in making arrest, 625, 626 
 in discharging a soldier, 621 
 
 in obtaining a warrant of distress for poor-rate against a bahkrupt, 617 
 evidence of, 27, 631 
 
 from admissiqns of defendant,. 616 
 
 in action of libel or slander, 823, 824 
 
 in actions against newspapers for libel, 816 
 
 in actions aga.inst justices, 730, 731 
 
 want of probable cause is evideiicfe of, 614 
 but evidence of malice is not evidence of want of probable cause, 614, 615, 
 621 
 
 MALICIOUS PROSECUTION. See Costs— Malice— Peace. 
 
 is a tort, if with mahce and want of probable cause, 613, 614 , 
 
 what is evidence of malice and want of pMbable cause, 614, 615, 621, 63i, 632 
 by persons who manifest a consciousness of the innocence of the accused, 615, 
 
 616, 617 
 by persons who put the crialinal law in hiotion to obtaiii payitieht of a debt, 
 or restitution of goods, 615 
 under advice of counsel, 617 
 by persons bound over to prosecute, where the proceedings originated from ihalioe 
 
 in the first instance, 617, 618 
 by persons after they have obtaiiied knowledge of the innoceiioe of the accused, 
 
 617, 618 . 
 
 by complaint of felorly, &c., made to a inagistrate, upon which the magistrate 
 
 issues a warrant, 618 — 620 
 by continuance. Of proceedings commenced without a peraon'a knowledge, 62(5 
 by causing search-warrant to issue, 620 
 by preferring indictment, 621 
 before court-martial, 621 ' 
 
INDEX. 1139 
 
 MALICIOUS PROSECUTION— continwcci. 
 by proceedings in baiilcruptoy, 62g, 624 
 conviction, unreversed, or adjudication in banla:uptcy, is an answer to an action 
 
 for, 620, 624 
 liability of corporation for, 627, 931, 932 
 action for, cannot be brought in, but may be remitted for trial to, county 'court, 
 
 948, 949 
 who to be defendants in actions for, 626, 627 
 
 persons prosecuting through an agent, 626, 627 
 
 railway coinpany, 627 ^ 
 
 action for, a bar to a criminal information on the same subject-iaatter, G27, 62S 
 declarations in action for, 628 
 pleas ^n actions for, not guilty, 62^ 
 
 of justification, 628 
 interrogatories in action for, 628, n. 
 evidence in actions for, for the plaintiff, 629 — 633 
 
 proof of prosecution. and acquittal, 631 
 
 proof of malice and want of probable cause, 63i — 633 
 evidence in actions for, for defendant, 633 
 
 oral evidence of admissions of plaihtift before magistrates, though not taken down 
 in writing, are admissible in actions for, 692, 693, n. 
 damages recoverable in actions for, 633, 634 
 
 sigtiing charge-sheet, and appearing to support charge, is not necessarily the com- 
 mencement of, 949 
 not barred by a recovery of judgment in an action of a false imprisonmeiit, 610, 
 
 967 
 
 MANDAMUS, 
 Prerogative-writ of-^ 
 object of, 1053, 1054 
 issue of, is discretionary with court, 1054 
 to enforce statutory, corporate, or public duties, 1054 , , ., 
 
 imless their performance has become impossible, 1055, 1057 , 
 
 to mayor and burgesses, lords of manor, and others, to hold courts, 1064, 1056 
 to judges, magistrateS,'&c., to hear and adjudicate, and generally to perform the 
 
 duties of their office, 1055, 1056 
 to quarter sessions, recorders, justices, and judges of inferior courts, 1055 
 
 except county courts, 643, 1056 
 to justices, to grant a certificate of dismissal of case of assault heard befone them, 
 
 ?01 . - . , . 
 
 to ministerial officers, to compel them to perform their duties, e.g., to a gaoler, to 
 receive a prisoner ■ to trustees of a charity, to dehver up keys ; to Corporations, 
 to permit inspection of mimite-books, &c., &c., 1067, 1058 
 
 although the time prescribed by statute has elapsed, 1057 
 to Crown, 1057, 1059, 1060 , 
 
 to overseers or clergymen, to bury a pauper, 1058, 1059 
 where there is another remedy at law equally effectual, 1059 
 to public officers of the Crown, to pay over money, 1059, 1060 . 
 
 to compel surrender of public documents by persons who have obtained them in 
 
 their official capacity, e.g., town-clerks, overseers, clerk of company, &c., 1060, 
 
 to restore or admit a person to a freehold, office, e.g., parish clerk, clerk of the 
 peace, &c., 1061, 1062 
 
 freehold office, how forfeited, or vacated, 1062, 1063 
 to restore to offices held at Will, will not be granted, 1063, 1064 
 
 instances of such offices, 1063, 1064 
 to medical council to restore name of medical man to the register, 1064 
 to test the vaUdity of an election, e.g., of churchwardens, 1065 
 to elect churchwardens, sexton, or organist, 1065 , , i i. j 
 
 to compel institution to pubUc office, where a person has been duly elected or 
 appointed, e.g., a churchwarden, parish clerk, or sexton, prebendary, dissenting 
 minister, &c., 1065, 1066 " ^ , , s, mpH 
 
 but not to private offices, e.g., secretary of company, vestry clerk, &o., lO&b 
 or to a presentative benefice, 1066 
 to admit copyholder, 1066 ,t, ■ j j.- mcA in'rn 
 
 to joint-stock companies to compel ttem to pbrform their duties, 1066—10/0 
 
 to register shareholder, 1066 
 
 to admit director, 1066 
 
 to register probate of will, or transfer of shares, 1068 
 
 to make calls to fflscharge a debt, 1068, 1069, 1073 
 
 to restore a highway illegally diverted, 1070 
 
 D D D D 2 
 
1140 INDKX. 
 
 MANDAMUS — continued. 
 
 to make compensation, and to take the necessary steps for ascertaining it, 755, 
 
 1069,1070 
 to allow inspection of register, 1066, 1067 
 to chartered companies and corporations — • 
 to admit a member, 1066 - 
 to produce books at public meetings, 1067 
 to affix common seal, 1067 
 
 to allow inspection of corporate records, by-laws, &c., 1067 
 to commissioners, local boards, &c., to levy rates to discharge a, debt, 1068, ,1069 
 
 to. make compensation, 1070, 1071 
 to court of quarter sessions, 1071 
 
 to churchwardens to allow inspection of parish accounts, 1072 
 instances where it will -not be granted, 1057, 1058 
 
 will not be granted, where a visitor has been appointed by the founder, 1064 
 effect of delay in application for, 1071 
 previous demand of performance necessary, 1072 
 is in effect a civil action, 1076 
 pwceedmgs in, 1071 — 1079 
 
 in case of election to corporate offices in boroughs, 1072 
 
 requisites of virrit, 1072, 1073 
 
 in case of impossibility of performance, or alternative performance, 1073 
 
 objections to, if appearing on the face of it, may be made at any time, 1077, 
 
 1079 
 persons, to whom directed,. 1073, 1074 
 
 corporations, lords of manor, &c., 1073 
 service, 1074 
 return, 1074, 1075 
 impossibility of performance, 1075 
 pleas, or demurrer to, 1075, 1078 
 interpleader order, 1076, 10/7 
 error on, 1077, 1078 
 damages and costs, 1075, 1078 
 costs, 1022~, 1055, n. ' 
 
 judgment, non obstante veredicto, 1078, 1079 
 action or information for false return to, 1079 
 attachment for disobedience to, 1079 
 In an action : — 
 
 in what actions may be claimed, 1079 
 but may be claimed separately, 1080 
 lies, whenever a duty is imposed by statute on a public company, &c., in the per- 
 formance of which the plaintifi is interested, 1081 
 instances of, registration of probate and admission of executor on register, 
 registration of shareholder, &c., 1081, 1082 
 to local board, or commissioners, to levy a rate, 1082, 1083 
 cannot be brought to enforce mere payment of debt or damages, 1080, 1081 
 for instance, for the salary, expenses, &c., of a clerk of commissioners, 1083, 
 1084 ' 
 
 declaration, pleadings, atid judgment, 1080, 1084, 1085 
 
 MANOR. See Common— Lord of Manok — Pasturage — Steward. 
 claim by customary tenants of, to turbary, 81 
 
 MANTEAP, 
 
 setting, a misdemeanour, except in a dwelling-house, 168 
 
 MANUSCRIPT, 
 
 cannot be used, copied, or published, without the consent of the author, 10 
 injunction against publishing, without consent of the author; 1031, 1032 
 
 MAPS, 
 
 copyright in, 42 
 
 MARKET, 
 
 , interference Vfith, how far actionable, 11, 13 
 obstruction to public, is a nuisance, 166 
 toUs at, on the stall, or article sold, 13 
 
 must be reasonable, 13 
 sale of horses by auctioneer in, 13, n. 
 right to erect stalls in, an easement only, 270 
 by-laws for the regulation of, 38, n. 
 declaration in action for obstructing, 148 
 
INDEX. 1141 
 
 MAEKET OVERT. See Sale. 
 MARRIAGE. See Hdsband— Wipe. 
 
 otihel^s^^SSs'' '*'°^'-™**'^y ""^°" °* *'^^° persons for life to the exclusion of all 
 loss of, caused by slander, is actionable, 14 
 loss of, from fraudulent misrepresentation, is actionable, 8 
 effect of, on proceedings in action, 946 
 how proved, 900 — 903 
 
 MARRIAGE SETTLEMENT, 
 
 powers of the Divorce Court over, 890, 891 
 
 MARRIED WOMAN. See Wipe. , 
 
 false representation by, that she is a. feme sole, is not actionable, 857 
 
 MASTER. See Pbincipal. 
 
 liability of, for acts of servant, 23—26, 174, 175 
 
 not liable for acts of servants not .ipjointed by himself, but by some third person 
 
 e.g., a contractor, 24 r , 
 
 liability of, for negligence of servant in ordinary course of employment. 386 387 
 
 411,412, 413, 419,«34 f j x , i, 
 
 in case of jobmasters, 387 
 
 in causing explosions of gas, fires, &c., 251, 252 
 is entitled to indemnity from the servant for the latter's negligence, 26 
 liability of, for wrongful acts of servants, workmen, or persons aotine bv his " 
 direction, 935, 936 i- 5 j' 
 
 for trespass or injuries to land committed by servant, 70, 74, 290 
 trespasses committed by servant in charge of cattle, &c., without authority, 265 
 in the creation of a nuisance, 204 
 for conversion of property by his servant, 365 
 
 for illegal distress by baiUfif, or servants, 556 " 
 
 when estopped from denying authority of servant, 935 
 
 how far liable for injury to his servant, in the course of his employment, 397 
 
 399 
 duty of, to take reasonable precautions for security of his servants, 186, 187, 188 
 bound to protect his servant from latent dangers known to him, but not to his 
 
 servant, 398 
 bound to comply with statutory regulations for safety of servants or workmen 
 398, 399 - * ' 
 
 not liable for injuries to servants from dangerous employments, if danger is known 
 to the latter, 187, 188 
 unless duty, e.g., of fencing machinery be imposed by statute, 188 
 ^ how far liable for injury to one servant (or any one helping him gratuitously), from 
 negligenoe of another, 188, 399, 400 
 may sue for injuries to his servant, 920 
 when entitled to sue for assault on servant, 594 
 
 may sue for the loss of service of servant through tortious act of another, 907, 911 
 ^ unless such act be a breach of contract, and the contract is not with him, 907 
 
 e.g., for loss of luggage sent by his servant by railway,- as the contract is not with 
 
 him, 917 
 may lawfully chastise his apprentice, 602 
 
 MASTER OF SHIP. See Shipmaster. 
 
 may be liable for negligent navigation though owner is not, 391, 392 
 
 duty of, in case of collision, 390, 394 
 
 negligence of, 390—397 
 
 non-observance of statutory or Admiralty regulations, 392, 393 
 
 damage to cargo, 395 
 
 goods damaged on the voyage, 396 ^ 
 
 negligent stowage, 396, 397 
 
 warrants the safety of goods carried, 430 
 
 Uen of, 447 
 
 MAYOR. See Sheeipp. 
 
 is liable for refusing a poU at elections, 27, 28 
 duties of, at elections, 28 
 
 MEAT. See Food. 
 diseased, 194, n. 
 
1142 INDEX. 
 
 medicaij council, 
 
 mandamus to, 1064 
 
 MENACES, 
 
 injuries caused by, are actionable, 9, 10, 11 
 
 MESNE PR0PITS, 
 
 action of trespass for, 814, 815 
 
 MESSENGER, 
 
 under search-warrant of Court of Bankruptcy, may break open house, &c., 666 
 
 METROPOLIS. See Areest— London. 
 
 METROPOLITAN BUILDING ACT. See Light— PENALir. ' 
 
 no duty imposed by, of protecting adjoining house, when your own is puUed down, 
 179 
 
 MILITARY OITICER, 
 
 is liable for abuse of authority, 29, 30 
 
 but not for acts done by command of superior oflRcer, 30 
 cannot be sued for, bringing a subordinate officer before a court-martial, 34 
 arrest by, when acfiionable, 934 
 quartered abroad', security for costs by, 1026 
 
 MILL. See House — Watee. 
 right of water flowing to, 121 
 right to have grain ground at, 148 
 
 alteration of premises by lessee of, by -altering right of water, or changing nature 
 . of miU, is waste, 233 
 is not entitled to wind to work its sails, 153 
 carrying on, may be a nuisance, 167 
 interference with, by Metropolitan District Board, 746 
 declaration in action for obstruction of, 148 
 
 MILLER, 
 
 lien of, 439 
 
 MINERALS, fe Mines. 
 
 right of lessee in respect of, 268 
 
 wrongfully severed, vest in landlord, 254 
 
 injunction against getting, by lessees or tenants, 258, 259 
 
 MINE-OWNER, 
 
 liability of, for acts of persons appointed by his agent, manager, pr sj^eward, 24 
 
 MINES. See Coai — Minerals — Shatt — Support. 
 grant of right of, 96 
 
 on demise of, right to support of surface is implied, 62 
 rigjit to take when a profit & prendre, 80 
 rights of rector with regard to, 239 
 rights of lessees with regard to, 233 
 
 tenants for life, 235 
 right to search for, &c;, cannot be claimed under Prescription Act, 118 
 title to, not barred by non-user for twenty years, 272 
 under railways, 159 
 
 right to compensation for severance of, 91 
 sinking of, is lawful, until it injures your neighboiv's land, 9 
 trespasses in, 268 
 
 injuries from defective state of shaft of, 188 
 injuries to, from water from adjoining mines, 68 
 water descending into from another mine in the natiiral course of draina"e is not 
 
 actionable, 745 
 water flowing from. See Watee — Watercourse. 
 
 MINOR. See Children — Infant. 
 
 MISDEMEANOUR, 
 
 committal of, is actionable, 33 
 accusation of, is slanderous, 4 
 
 MISJOINDER. See Amendment. 
 
 MISREPRESENTATION. See False Repeesentation. 
 licence obtained by, is a nullity, 307 
 
iNpiix. 1143 
 
 MODEL. See Sculptuke. 
 
 MORTGAGEE. See Fixtdees. 
 
 rights of entry of, under Statute of Limitations, 278 
 may distram under an agreement in mortgage deed, 518, n. 
 when, may distrain for rent previously paid to mortgagor, 524 
 m possession, injunction against, to prevent waste, 'liS 
 
 MORTGAGOR See Owner 
 
 not a tenant at wiU to the mortgagee within the Statute of Limitations, 273, 27i 
 may distram m name of mortgagee, 523, 524 
 injunction against, to prevent waste, 259' 
 
 MOTHER See Childhen— Wipe. 
 
 MUNICIPAL CORPORATIONS, 
 by -laws made by,. 35 — 37 
 
 MUSICAL COMPOSITION. See Copykight. 
 unlawful representation of, 44 
 
 MUSSEL. See Eisheby. 
 
 name/ 
 
 assumption of, is not actionable, except where it is coimected with a trade, 
 business, periodical publication, &c., and is assumed fpr the puroose of fraud! 
 874, 875, u., 876, 877, n. 
 
 NAVAL OFFICER. See Military Opficep. 
 is liable for abuse of authority, 29 
 
 but not for acts done in pursuance of command of superior officer, 30 
 cannot be sued for bringing a subordinate oflBcer before a court-martial, 34 
 not liable for negligence of subordinate officer in carrying out his orders, 16 
 
 394 ■ ■ 
 
 NAVIGATION. See Commissioners op Navigation — Conseevatoes — Negligence 
 — Ships — Watek. 
 
 NAVIGATION COMPANY. See Canal Company— Rivee. 
 
 NEGLIGENCE. &e Waste. 
 
 distinction between, and inevitable accident, 380, 881 
 
 torts founded on, 18 
 
 must be proved affirmatively, 18 
 
 "gross," meaning of, 18, n. 
 
 creates no cause of action, unless it involves some breach of duty, 95S 
 
 where damage caused by, is partly also caused by neglect of a third person, 
 
 18, 19 
 of common carrier. See Common Cakeier. 
 
 of bailor in not disclosing dangerqus nature of goods bailed, 472, 859 
 of coach proprietors, 382, 385 
 in the construction of buildings to which the public are admitted by payment, 
 
 207 _ - ' 
 
 of persons erecting race stands, &c., 386 
 in driving, 386—389 
 in breakmg horses in the street, 389 
 of foot passengers, 389, 390 
 in navigation of vessels, 422 
 
 liability for, though plaintiff is insured, 422, 423 
 of owners or masters of ships, 390 — 397 
 
 non-observance of statutory or Admiralty regulations, 392, 393 
 
 if naval officer is on board and navigates the ship, 394, 395 
 
 causing damage to cargo, 395, 396 
 
 goods damaged on the voyage, 396 
 of naval officers, 394 
 
 of masters causing injury to their servants, 397 — 399 
 of one fellow-servant causing injury to another, 188, 399, 400 
 of telegraph companies in the delivery of messages, 437 
 
 of contractors and sub-contractors, 205, 413 — 415 _ ^ * 
 
 in leaving dangerous articles in places where injury is likely to occur, 415, 416 
 in leaving horses unattended, 416 ()^?-/^^(L,^.,:^tx.X^s:^^^^^^=.c<.i_s-^ /(f^ 
 
1144 INDEX. 
 
 NEGLIGENCE— con«t)i«ccJ. 
 
 of skilled workmen, professional men, ohymists, &o,, 402, 403 
 
 of building owner under Metropolitan Building Act, 402 
 
 of attomies and soUoitors, 403—496, 420, 421, 971, 972 
 
 of partners, 403, n., 416 
 
 of surveyors and valuers; 406, 407 
 
 of bank-managers or bankers, 407 
 
 of directors, 407, 408 , 
 
 of ferrymen, 412, 493, 494 
 
 of consignors or bailors of chattels, 17, 18 
 
 duty to give notice of dangerous or fragile nature of chattels consigned or 
 bailed, 17, 18, 19 
 of bailors and bailees, 425 — 437 
 of accountants, 929 
 by Metropolitan District Board, 746 
 of clerk of court of justice, 644 
 of sheriff in the execution of writ, 644 
 
 in dealing with goods in possession of consignee or bailee, 322 
 in the management of gas, 252 
 of broker or agent on purchase of goods, 854 
 of railway companies. See Railway Company. 
 
 in delivery of cattle, 181, 182 
 
 in the management of, stations, 182, 183 
 
 in the management of gates at level crossings, 184, 185 
 
 by sending small boys in charge of cattle, 189 V ^ 
 
 in not keeping accommodation gates across railway closed, 185, 189, 190 
 in the management of canals, docks, wharfs, &c., 185, 186 
 in the performance of work under powers of an Act of Parliament, 736 — 741 
 of board of public works, trustees, commissioners, contractors, and others, in the 
 
 performance of work under a statute, 738 — 741 
 action lies for, though the injury is done by persons acting under an Act of 
 
 Parliament, 767 
 in the management of guns or horses, 380, 381 
 in concealing the dangerous nature of things bailed to be carried, 381 
 of carriers of passengers for hire, 382 — 386 
 in quarrying stone near highway, 172 
 of innkeepers. See Innkeeper. 
 
 in running against telegraph cables at the bottom of the sea, 176 
 in j)ulling down houses, 179 
 by corporations, 931 
 contributory by the plaintiff, 18, 19 — 22 
 
 what is, 420, 421 ' 
 
 disentitles injured or killed persons from recovering, 189, 190, 400 — 402, 409 
 
 if an immediate co-operative cause of the injury sustained, 402, 420, 421 
 must be direct, and not remote or indirect, to be an answer to the action, 21, 22 
 by a mere child, 20, 21 
 is provable under plea of not guilty, 209 
 assault resulting from acts of, 570, 571 
 master ;responsible for servants, 411, 412, 413, 419 
 
 but not for that of contractor employed by him, but exercising an independent 
 employment, 412; 413 — 415 
 of servant, liability of master for, 386, 387 
 
 causing fires. See Fire. ' 
 
 causing burning of house is waste, 232 
 where death is caused by, 408, 409, 420, 423, 424 
 jurisdiction of Admiralty in cases of collisions between, or damage caused by, 
 
 ships, arising from, 409, 410 
 plaintiffs irj actions for, 410, 411, 452 
 
 joint owners, &o,, 411 
 defendants in actions foi', 411 — 413, 416 
 
 contractor and sub-contractor, 413 — 415 
 
 joint proprietors, or wrong-doers, 416 
 declaration in actions for, 416, 417 
 
 against bailees, 456, 457 
 l)le^s in actions of, not guilty, 418 
 
 contributory negligence admissible in evidence under, 418 
 or inevitable accident, 418 
 • evidence of, for the plaintiff, 418 — 420 
 
 pnmdfmie proof of, from very occurrence of accident or loss, 18, 250, 251, 382. 
 383, 384, 435, 436 > . > i . 
 
 loss by theft is primd fade evidence of, 480 
 
INDEX. • 1145 
 
 NEGIJGENCE— conii/wcd 
 
 primd facie evidence of, in case of goods on board ship injured by oil, 482 
 need not be proved in actions for injuries from ferocious animals, 212 
 .evidence of,for the defendant, 420, 421 
 damages recoverable for, 421 — 424 
 expense of employing steam-tug, medical expenses, 994, 995, 996 
 all reasonable consequences of, but not unreasonable and unexpected conse- 
 quences, 22, 23 
 
 NETS, 
 
 right of landing,-how acquired, 115 
 
 right to hang and dry on another's land, 80 
 
 custom to dry on sea-shore. 111 
 
 impeding navigation of river, or passage of fish, illegal, 199 
 
 NEW ASSIGNMENT, 974, 975 
 
 NEWSPAPER. See Libel— Malice. 
 
 copyright in title of, and articles published in, 42, 43 
 
 shares in, in reputed ovmership of bankrupt, 350 
 
 bai of ^discovery against publisher of, to ascertain the name of proprietor, 819 
 
 NEW TRIAL. See Damasbs. 
 costs on, 1021 
 
 NITRO-GLYCERINE, 
 
 carriage and manufacture of, 466 
 
 NOISE. See iNJUNOTioif. 
 
 making of, when a public nuisance, 218 
 by forge or workshops, 162, 167- 
 
 unless a prescriptive right has been obtained, 167 
 nuisances arising from, not actionable by reversioner, 203 
 
 NON-JOINDER. See Amendment. 
 
 NOTES, ^-ee Bills. 
 
 NOT GUILTY. See Evidence— Pleas. 
 
 / plea of, operates as denial of breach of duty or wrongful act, 958 
 in actions against master for negligence of his servant, 958 
 in actions for slander, where the words are not actionable without special 
 
 damage, 958 
 in actions of libel or slander, and evidence thereunder, 814, 815 
 in actions for the obstruction of easements aiaA profits cb prendre, 150 
 in action for nuisance, 208, 209 
 
 in actions against bailees for loss of, or injury to chattels bailed, 457 
 in actions against carriers for loss of or damage to goods, 508 
 In action for seduction, and evidence thereunder, 911, 912 
 in actions for false representation, and evidence thereunder, 865, 866 
 in actions of trespass to land, 292 
 in actions for waste, 255 
 in action for assault, 598 
 
 and evidence thereunder, 598, 599 
 in action for malieious arrest, malicious prosecution, or malicious jiroceedings in 
 
 bankruptcy, 628 
 evidence necessary by plaintiff under plea of, 151 
 
 NOT GUILTY BY STATUTE, 
 
 effect of, in actions for the obstruction of easements and profits a prendre, 
 
 150, 151 
 in actions against justices or constables, 730 
 
 in actions of trespass, or on the case for an unlavsrful distress, 560, -561 
 in actions for assault and false imprisonment, and evidence thereunder, 599, 600 
 not available to railway, gas, or other companies, local boards of health, &c., excejjt 
 
 tmder a special Act, 768 
 not allowable under local statutes, 958 
 
 NOTICE 
 
 of distress, 543 - 
 
 to abate a nuisance, when necessary, 202 
 
 if nuisance is on land of another, 195 
 to adjoining proprietor, before pulling down ruinous houses in London, 196, 197 
 
1146 INDEX. 
 
 ISOTlCE—cmtinued. 
 
 of special damage, 378, n. 
 requisites of, under the Carriers Act, 474 
 of act of baniruptoy, what sufficient, 348 
 of afisignment of chose in action, 362, n. 
 
 NOTICE OP ACTION. See Deolasation. 
 
 who entitled to, 764 " 
 
 gas companies, railway companies, toll or tax collectors, revenue officers, and 
 
 land-tax commissioners, 766, 766 
 contractors under local board of health, or Metropolis^ Local Management 
 
 Act, 766 
 svirveyors of highways, highway boards, &c., 766, 7B7 
 
 constables and others, intejiding to" act under an Act of Parliament, 588 — 591 
 persons acting injexecution of Larceny Act, or Metropolitan Police Act, 591, 592 
 county court judges, 667 
 
 county court bailiffs, 668 ' 
 
 justices, 726, 727 
 
 may be given before the conyiction is quashed, 727 
 requisites of, 728 
 
 to be given one mouth before, 592 
 what particulars must be contained in, 592, 593 
 tender of amends after, 767 ' ' 
 
 defence of want of, must be specially pleaded, 768, 769 ~ 
 proof of, 769 ^ 
 
 NOTICE TO PEODUCE. See Evidence. 
 
 NOTICE TO QUIT, • 
 
 waiver of, by distress, 623 
 
 NOTICE TO TREAT, 
 
 is binding as a statutable agreement, 751, n. 
 
 NOVEL,- 
 
 'dramatising of, whether an infringement of copyright in the novel, 43, 44 
 
 NUISANCE, 
 
 what it is, and instances of, 161, et seq. 
 
 corrupting water with gas refuse, 48 
 
 carrying on uqxious trade, 48, 48, n,. 
 
 turning out diseased cattle, &c., on unenclosed land, 48 
 
 exposing disegaed cattle, &c., for sale, 48 
 
 caused by constnjction or maintenance of gasworks, 737 
 
 penalties and remedy for, 200, 201 
 steam thpeshing m^ichines, 171, n. 
 keeping ferocious animajls, 190 — 193 
 , keeping pigs, 36 
 
 non -repair of sefvers, drains, wd watercourses, 162 
 on highways, 171, 172, 174, 175 ' 
 adjoining highways, dangerous excavations, steam-engines, Eme-kilns, lettin"' off 
 
 fireworks, 171, 172 ' , ° 
 
 ringing bells, 2l7 
 
 necfessarily created under an Apt of Parhanient is not actionable, 734, 735 
 'public, is actionable if special damage sustained, otherwise not, 201 218 
 inducing a person to create, is actionable, 28 
 
 every person guilty of creating of, by himself or his servants, is liable for 201 
 205 ■ ' 
 
 upless works ordered do not necessarily create a nuisance, and an independent 
 contractor is employed, 204, 205 
 every person ordering the act producing, is liable for, 203, 204 
 where several join in creating, 194, n. 
 
 all persons liable for, are liable jointly as well as severally, 205 
 when reversioner liable for, 147, 165, 166 
 
 although he has- parted with the land, 165 
 tenant always liable for, 166 
 
 liability for, though no longer in possession of land, 202 
 tenant and landlord, when responsible respectively for, 203, 204 
 ' liability of infant for, 938 
 no amswer to action for, to say that the trade is carried on in a fit place and is a 
 
 benefit to the public, 163 
 
INDEX. l-[47 
 
 NUISANCE— conimiMd. 
 continuing, 763 
 
 is-a fresh injury, 202 
 
 and actionable so long as it continues, 214, 968, 969, 97t 
 abatement of, in case of commons, 196 
 
 removal of ruinous buildings in London, 194, 196 
 
 ■where limited right is exceeded, 197 
 
 by puUing down house, 269 
 
 under statutory powers, 194, 195 
 _ by order of magistrates, 194 i 
 
 notice to abate, when necessary, 202 
 
 when an entry justifiable on another's laud to abate, 195, 19G 
 abatement of, no defence to an injury already suffered, 202 
 expense of removal of, how recoverable, 194, 195 
 penalties for the suppression of, 48 
 by-laws for the suppression of, 36, 201 
 who to be plaintiffs'in actions for, 202, 203 
 
 joint-tenants or tenants-in-common of property affected, 203 
 who to be defendants in actions for, 20g^205 
 declarations for, 205 — 208 
 
 effect of plea of not guilty in actions for, 208, 209 
 evidence in actions for, for^ihe plaintiff, 210 — 213 
 
 for the defendant, 213 
 damages recoverable in actions for, 213, 214 
 prohibition formerly issued against public, 217 
 indictment for public, 218, d seq. 
 
 instances of, 218, 219 
 
 in Garriage-ways, bridle- ways, or footpaths, 219 
 injunction against, 215 — 218 
 
 e.g., the pollution of a river by sewage, 770, 771 
 
 if created under statute, 217 
 
 public, injimetion must be at suit of Attorney-General, 217 
 
 if land purchased with Ijnp^ledge of, 217 ' " 
 
 if acquiesced in, 216, 217 
 
 if only temporary, 164 
 
 OCCUPATION, 
 
 evidence of, in actions for nuisances, 210, 211 
 
 OCCUPIER -See Tenant. 
 
 OFFEB. See Compensation. 
 
 OFFICE, ^ 
 
 freehold, what is, how forfeited, &c., and instances of, 1062, et seq. 
 
 OFFICER. See Naval Officek. 
 
 OFFICIAL LIQUIDATOK, 
 
 may sue directors for losses occurring through their miscondvfctj 407, ^408 
 
 OMNIBUS. See Highway. 
 
 liability of proprietor of, for loss of luggage, 472 
 "nursing" by rival omnibiis is actionable, 931 
 
 OMNIBUS PROPRIETOR, _ . 
 
 liable for the acts of his servant in course of his employment, 24, 25 
 
 OPERA. See Coptright— Musical Composition. 
 
 OPTICIAN, 
 
 negligence of, in execution of work, 402, 408 
 
 OUTFALL. See Drainage— Water. 
 OVERHANGING. See Cornice— Trees. 
 
 OWNER, . ^ . . , . . , ,, „„ 
 
 mortgagor is, for repaying expenses mcurred m repair of sea-wall, 229 
 who is under a building agreement, or Public Health Act, for repaying paving 
 
 expenses, 229, n. 
 meaning of, in Metropolitan Building Act, 196, 200 
 
1148 INDEX. 
 
 OYSTERS. &cJ?isHEET. 
 
 right of taking on sea-shore, 281 
 
 obstructions caused by, in bed of navigable ver, 176 
 
 PACKED PARCELS., -See Railway Company 
 
 PAINTINGS. See Copyright. 
 
 sale of, when it passes right to copy, &c., 47 
 
 PALACE, 
 
 no execution can be levied in, 952 
 
 PARENT. See Childeen. _ 
 
 may sue for injury to his child, or seduction of his daughter, if loss of -service 
 caused thereby, 907, ct seq. 
 absence of daughter from parent's house, 908, 909 
 
 under a pretended hiring, 909, 910 
 if daughter a married woman,.910 
 
 if his OTfQ misconduct has conduced to the seduction, 910, 911 
 may lawfully chastise his child, 602 
 
 PARISH, 
 
 can only act by vestry meeting, and poll, if demanded, 741 
 
 liability of, to repair highway, 226,- 227, 228 
 
 boundary of, where highway separates it from another jparish, 283, u. 
 
 PARISH CLERK, 
 
 has a freehold in his office, 1061, 1062 
 
 PARLIAMENT. % Libel. 
 
 hindering a person from voting at an election of members for, is a tort, 27, 28 
 imprisonment by order of colonial, 640, u. 
 
 PARSON. See Reotoe. 
 
 PARTICULARS, 
 
 in action of libel, 817, n., 826, n. 
 of breaches of patent, 52, u. 
 
 PARTIES. See Defendant — Paeties to Actions — Plaintiff. 
 to actions of trespass to land, 289, 290, 291 
 to actions of tort founded on contract, 916, 917, 918 
 to suits in equity for the prevention of waste, 262 
 
 PARTIES TO ACTIONS. See Amendment— Paeties. 
 Plaintiffs : — 
 
 joint tenants and tenants in common against their co-tenants, 918 919 
 
 joint tenants and tenants in common against third persons, 928, 929 
 
 partners, 929 
 
 trustee and cestui que trust, 919 
 
 bailees of goods, 919, 920 
 
 master and servant, 920 
 
 husband and wife, 920—923 
 
 infants, heirs-at-law, devisees, and personal representatives, 923 926 
 
 trustees of bankrupts, 926—928, 929 
 bankrupts, 928 
 Defendants ;— 
 
 joint or several, 942, 943 
 
 tenants in common, 930 
 
 corporations, 930—933 
 
 trustees and commissioners of public works, 933, 934 
 
 military and naval officers, 934 
 
 master and servant, 934, 935, 936 
 
 principal and agent, 934 — 936 
 
 husband and wif^, 936, 937 
 
 infants, 938, 939 
 
 executors and administrators, 939 — 941 
 
 trustees in bankruptcy, 941 
 
 bankrupts, 941, 942 
 
INDEX. 1149 
 
 PARTNERS. See Joint Tenakts — Paeties to Actions — Tenants in Common. 
 negligence of, 403, n. 
 
 when liable for wrongful or negligent act of co-partner, 416, 943 
 not liable for illegal distress made by oo-pai'tner in name of firm, 556, 557 
 ■■ conversion or destmction of goods by, 329 — 331 ■ 
 when estopped from denying authority of co-partner, 985 
 may sue jointly for libel or slander, 811, 929 
 
 conspiracy by agent of, to procure share of partnership at an undervalue, 613 
 injunction to prevent injury by, to partnership property, 261 
 
 PARTY WALL. See Boundary Walls — Metropolitan Building Act. 
 injuries from non-repair of, 180 
 injuries from pulling down, 401 
 in London, how regulated, 287 
 
 PASSENGER. See Master oe Ship — Railway— Shipmaster. 
 smuggling by, on board ship, is a tort, 6 
 who is, within meaning of Merchant Shipping Act, 390, n. 
 
 PASTURAGE, 
 
 right of sole and several, 99, 108, 109 
 
 PATENT. See Patent Right. 
 duration of, 48, 48, n. 
 what a publication of, 48, n. 
 
 true and first inventor only entitled to grant of, 49, 50 
 must be both new and useful, 49, 52, 54—56 
 subject-matter of, what is, 50 — 52 • 
 
 method or process may be, 50, 51 
 
 combination of processes may be, 51, 54 
 
 cannot be taken out for principle, but may for a principle coupled with the mode 
 of carrying it into effect, 52 
 
 for an improvement on an existing patent, 53 
 specification of, 51, 52 
 
 provisional or complete, 51, n. 
 
 disclaimer of, 51, 52 
 remedies for infringement of, by action or injunction, 52, 53 ' 
 infiingement of, by sale, user, importation, or transmission only through the 
 ^ country, 52, 52, n. 
 particulars of breaches of, 52, n. 
 
 remedies for inJfringement of, by assignees and licensees, 53, 54 
 pleadings, want of novelty or utility, 54—56 
 slander of title to, 810 
 
 held in common, in whom it vests on decease of one tenant in common, 919 
 in reputed ownership of bankrupt, 350 
 
 injimetion against infringement of, damages for, and account of profits in equity, 
 1031 
 
 at common law, 1035^1036 
 
 PATENT RIGHT, 48, et seq. See Patent. 
 does not exist at common law, 48 
 what if is, 48, 49 
 is not valid against the Crown, 49 
 ^signment of, 48, n. 
 
 PAUPER, 
 
 security for costs by, 1026 
 
 ■ PAVING. &c Owner. 
 
 expenses of, when recoverable by vestry, 39 
 
 PAWNBROKER. See Bailee. 
 
 duties of, with regard to the article pawned, 429 
 action against, for recovery of stolen property, 32 
 lien of, 438, n., 442 
 
 PAYMENT INTO COURT, 
 in what actions allowable, 961 
 in actions of detinue, 459 
 
 in actions of replevin, 560 . - j. , . 
 
 by constables and others entitled to protection when acting in pursuance of statute 
 
 593, 594 
 
Il50 INtiEX. 
 
 PAYMENT INTO COVRT— continued. 
 
 effect of, in actions of tort, as to the admission or non-&diliission of the cause of 
 
 action stated in declaration, 976, 9^7 
 costs on, effect on, of Cbtmty Court Acts, 1014, 1015 
 
 PEACE, 
 
 maliciously summoning a person to be bound over to keep, is actionable, 613 
 
 EBNALTIES. &c By-laws— Costs. _ , 
 
 on nuisances, &o.,, arising from construction or maintenance of gasworks, 200, 201 
 
 on encroachments, deposit of rubbish, &c., on, or removing tiirf from, highways, 225, 
 ' 226 ■ 
 
 on obstructions j or persons suffering filth to flow on high'fray, 171 ^ , 
 • on sinking pits, erecting windmills, steam engines, &;c., adjoinitg higHway or 
 turnpike-road, 171 .. ^j. 
 
 ,on persons playing gaihes, letting olF fireworks, guns, &d., near highVrAf, l7l 
 
 for fouling water in weU, fountain, or puinp, SOl 
 
 for non-consumption of smoke, 261 
 
 on masters of vessels throwing rabbishj &c., into navigable river, 199 
 
 on leaying open accommodati<Ju gates across railway, 18.§ ' 
 
 on servants for negligently or carelessly eaiiSiiig flreS, 251 
 
 on publishing lectures without consent of lecturer, 43 
 
 on unlawful importation or sale of books, 41 
 
 for the unlawful representation of dramatic or musical compositions, 44 
 
 for the -piracy of prints and engravings, 46, 47 _ . 
 
 for the piracy of useful or ornamental dsygii^, 4S, 48 
 
 on the copying, &c., of paintings, drai*iligs, diiid photographs, 47 
 
 for selling pirated copies of sculpture, &o., 45 
 
 for the use of counterfeit trade-marks, 47, 48 . , , 
 
 ' under Metropolitan Building Act, for not iakiiig good injury ddfie t& adjoining 
 t)WnSr, 17s , ~ • J 
 
 on building owner, who damages adjoining briildilig's in Lbhdofl, 462 ^ 
 
 under by-laws of railway compdhy, 703 
 
 for the commission of nuisances are cumulative on remedy by actibri, 48, lOS 
 
 given by statute when a cumulative, exclusive. Or altertiative reinfedy to that 
 given by common law, 39, 40, 48, 402 
 
 recovery of, before justices, 194, ti. ' 
 
 imprisonment for non-pSyiiient of, 201 
 
 distress or imprisonment for non-payment of, 708 — 710, 708, ii. 
 
 PEEJUEY, 
 
 inducing a person to commit, is actionable^ 23 
 
 PERMISSIOiT. &eLioEi«roB. 
 
 user of easements o:^proflts by, vrill not raise presumptioii of grant, 114 
 
 PBRSUwiSlTfr^^OifeEL— OoNVEKSio*— Tkespass. , 
 
 PETEOLETTM, 
 
 carriage and storage of, 466, 466, n, 
 
 PEW, 
 
 title to, 287 
 
 title to, by prescription, 113, 114 
 
 PHOTOGEAPHS. See Pbints. 
 copyright in, 47 
 
 cannot be copied without the consent of the owner, 10 
 on sale of, whether copyright in passes, 47 
 
 PICTUEES, 
 
 cannot be copied without the consent of the painter or o'Vimet^, 10 
 
 PIGEONS. See Pigeon Shooting. 
 
 rights of lessees with regard to, 233, 234 
 remedy for crops injured by, 267 
 damage feasant may be shot, 548 
 
 PIGEON SHOOTING, 
 when a nuisance, 167 
 
PIGS. See Cattle — Pigstye. 
 
 keeping of, not necessarily a nuisance, 3G 
 
 keeping, in London, 163, n. 
 
 sale of diseased, when Unlawftil, 4 
 
 PIGSTYE, 
 
 is a nuisance, 162, 164 
 
 PILCHARDS. See Pisheet. 
 
 PILES, 
 
 injuries from, in bed of navigable river, 17G 
 
 PILOT, 
 
 employment of, when compulsory, 390, 391 
 
 PIPES. See Drains. 
 
 PIEATE. See Sale— Ship. 
 
 PISTOLS. See Guns. 
 
 PIT. See Shaft. 
 
 PLAINTIFFS. See Amendment — Evidence — PAS'fttES to Actions TfiiAt. 
 
 joint o^ several, in actions of tort, 928, 929 
 
 in actions for negligence, 410, 411, 452 
 
 in actions of detinue where the property belongs to two or more, 454 455 
 
 in actions for conversion, 362 
 
 joint tenants or teliants in common, 364 
 •in actidns of trespass to land, 69, 70 
 in actions for consequential injuries to land, 70 
 tenant or reversioner, 70, 72, 75, 76 
 joint tenants or tenants in common, 70 
 in actions for assault, 594 
 
 if two or more are assaulted, 594 
 in actions for false representation, 861, 862 
 ' in actions'against carriers, 504 — 506 
 in actions for false imprisonment, 594 
 
 if two or more are imprisoned, 5&4 
 in actions of replevin, 555 
 in actions against sheriffs, 670 
 
 misjoinder of, will not prevent judgment for plaintiff entitled to sflodeed, 943, 944 
 non-joinder or misjoinder of, may be amended, or judgment given in favour of 
 
 those entitled, 929 
 are liable for trespasses committed by the sheriff or his officers in the execution 
 of a writ, if they interfere, or give wrong directions, otherwise not, 670, 671 
 
 or the process is set aside for irregularity, 671, 672 
 if residing abroad, or in Scotland or Ireland, security for costs from, 1026 
 expenses of, as witness may be allowed, 1024 
 
 PLEADINGS. See Deolaeation — Leave and Licence — Not Guilty— Not 
 " Guilty by Statute — Pleas — Venue. 
 in case of patents', 54 — 56 
 
 PLEAS. See Not Guilty— Not Guilty bt Statute. 
 to the jurisdiction, 957, 968 
 requisites of special, 960 
 puis darrein continuance, 961 
 payment into court, 961, 962, 976, S77 
 infancy, 962 
 
 accord and satisfaction, 962, 963, 964 
 
 pendency of another action for the same cause in a different court, 964, 965 
 judgment recovered, 965 — 969 
 bankruptcy of plaintiff, 969, 970 
 Statute of Limitations, 970 — 972 
 not guilty in actions for injuries to land, 73 ' 
 in actions of trespass to land, 292 — 297 
 in justification of trespass, 306, 307 
 
 ^pave and Ucenoe, 305, 306 
 
 Uherum tenemenium, and evidence thereunder, 271 
 
 entry to abate a nuisance, 195, 196 
 
1152 ' INDEX. 
 
 PLE A S — continued. 
 
 entry to levy distress, 561 
 equitable, 294 
 in actions for trespass to goods, cattle, &o. — seizure of the goods, cattle, &c., 
 
 damage feasant, 561 
 in actions for excessive distress, a previous recovery of the goods, in an action of 
 
 replevin, 561, 562 
 in actions for nuisances, e.);., fbuling water, &o., not guilty,' 208, 209 
 evidence under, 213 
 leave and licence, 73, 74 
 
 prescriptive right to obstruct water by throwing in cinders, &c., 209 
 prescriptive right to divert water, 73 
 prescriptive right to carry on offensive trade, 210 
 of obstruction of watercourse, damaging defendant's land, 209, 210 
 in actions for waste, 255 
 of not guilty in actions for negligence, 418 
 contributory negligence admissible in evidence under, 418 
 or inevitable accident, 418 
 in actioiis of trover — - (--, ^ 
 
 n:tStetl^8°^'IU-1-^--^^^-— -^^ 
 of justification on ground that plauitifi"s goods were on defendant's land, or 
 that his dog was chasing defendant's sheep, &c., 369 
 
 of son assault demesne in action of trespass, 572 
 
 of not guilty in action against sheriff' for escape, 673 , 
 
 in replevin, 557, 558, 'i-nf^''''^^^ *'^'^ " '■^-"■^ /^^ 
 
 equitable, 294, 972, 973 '^ 
 
 of justification must be specially pleaded, 73, 367 
 
 several, when allowable with or without leave of court or judge, 958, 959] 
 
 to j5e,opnstn}qd distributively, 973, 974,^ • 
 
 ►-2-»--'''''^^*-'''-C-«^ /7u. 
 
 PLEDGE. See BailIe — Pawnbbokek. 
 
 PLOUGH, 
 
 right to turn on another's land, 80 
 
 POLICE. -See Constable. 
 
 POLICY, 
 
 equitable owner of, entitled to possession of, 337 
 
 POLL, 
 
 right of every voter to demand, 27 
 
 POOE-BATE, . 
 
 distress for non-payment of, 695 
 
 POET, 
 
 right of public anchorage in, 281 
 
 limits of, may be altered by the Commissioners of Treasury, 280, n. 
 
 shingle on shore of, not tq be taken if forbidden by Board of Trade, 280 
 
 POSSESSION, 
 
 is suflBoient title against a wrong-doer, 369, 370, 372 
 constructive, 370, 371 
 
 slight evidence of, sufficient against wrong-doer, 302, 303 
 of heir, against wrong-doer, 304 
 
 POSTMASTEE, 
 
 duty of, to deliver, and liability for non-delivery of, letters, 17 
 
 POSTMASTEE-GBNEEAL. Sen Post Ofmob. 
 
 not responsible for neglect of subordinate offioers, 16 
 
 POST OFEICE, 
 
 officers of, responsible for their own neglect to perform their duties, 16 
 
 POULTEY, 
 
 trespasses by, 265 
 
 POUND. SeR Distress. 
 
 action or indictment for breach of, 540 ^ 
 
 keepers of, not liable for detention of animals impounded, although distress 
 wrongful, 551 
 
INDEX. 1153 
 
 PREBENDARY, 
 
 mandamus to admit, 1066 
 
 PRE-EMPTION. See Company. 
 
 PRESCRIPTION. See Presckiption Act. CU-«^^Z^i=w^ 
 title by, 112, et seq. 
 
 must be laid in tenant of fee, 112, 113 
 incorporeal hereditaments only claimable by, 113 
 easements acquired by, 80 
 allowed to supply the place of a lost grgit, 113, 114 
 
 title to pews by, 113, 114 i2i<>CC^^|^-^^^.,-^^«-^ J^'"""^'/?'^ 
 water by, 121, 122^ )z4y'OL^^ff~€'^'A':B-€>r^-->'p-i'''tiZ^///, 
 right by, to carry on oflFensive or noisy trade, ^ to fouLor obstruct water, 165, 
 _ 167, 209, 210 ^ /2„^^ A7/^^z::;pz5i%^ >^^ /^3>^-V--^4^-^«.^..^t-.._,,„«^ 
 right to use of, or to pollute water by, 66, 67, 209 " 
 
 what interruption of enjoyment prevents acquisition of title by, 128, 129 
 title by, not lost ^y mere non-user, J.29 — 131 
 
 pleas of, 73, 74, ^<i^«»->i-'<^c.-»'i-^fi-e^-*i<7 i^~>-'-^->'>'x^ ^ -^ ^ 
 in actions for trespass to land, 295 — 301 ^ 
 
 PRESCRIPTION ACT, 115, et seq. C^f-'-^^^^i^^'^ 
 
 what profits or easements may be claimed under, 118 
 
 enjoyment to gain title unfler, must haro been " of right," and not by permission. 
 
 &o., 119, 120, Airy^ /y .ASst^g^SE ^C?^ ^~^ '^ &¥^<^»<-<-^-:sv^/S', 
 what is an interruption within meaning of, 117, 129 — Isl 
 what admissible evidence under, 117 
 
 periods of infancy, idiocy, coverture, and tenancies for life, &o., excluded from 
 computation of time under, 117, 118, 131, 132j 
 
 except in case of light, 126, 127 ' 
 
 pleadings under, in.actions for. trespass to land, 295^-301 
 
 PRINCIPAL, 
 
 when liable for the fraudulent act of his agent, 854, 855, 862, 863. 
 when liable for wrongful acts of agents, 934, 935 
 
 subsequent ratification, 934, 935 
 when estopped from denying authority of agent, 985 
 
 PRINTER, 
 
 duty 0^ to print his name and place of business on first and last sheets of book 
 
 printed, 817 
 lien of, 439, 443 
 
 PRINTS, 
 
 infringement of copyright in, 46, 47 
 
 copying of, by photography, is unlawful, 46, 47 
 
 PRIVILEGED COMMUNICATION. &e Libel— Slander. 
 
 PRIVY.' iSee Tenant. 
 
 is a nuisance, 162, 165, 166 
 
 PRIVY COUNCIL, , ^ , J . 
 
 power of, as to importation of animals from abroad, 4, n. 
 
 PROBATE, 
 
 mandamus to register, 1068 
 
 PROCTOR, 
 
 lien of, 447 
 
 PROFIT A PRENDRE, 
 
 what it is, and how claimable, 80 
 
 to out down and carry away trees, com, &c., 97, y» 
 
 claim of, must not be unlimited, 81 mo ins 
 
 not claimable by the inhabitants of a parish by custom, 102, 103 
 
 presumption of grant of, from long user, 114 
 
 what may be claimed under Prescription Act, 118 _ a t ii« 
 
 right to take, vaUd after 30 years' enjoyment under Presenption Act, 116 
 
 i'S:"ofright^rSu"rbe\'ontmuo^ but user need not be, 129, 130, 131, 
 when may be acquired over land let on lease, 114, 115, 120 
 
 E EE E 
 
lloi IKDEX. 
 
 PROFIT A PRENDRE— corAinneA. 
 
 extinguished by unity of possession of dominant and aervieht tenements, 138^142 
 
 merger of, by unity of possession, 97, n. 
 
 transfer of, 96, et scq. 
 
 declarations for obstructions to, 147, 148 
 
 PROHIBITION, 
 
 object of, to restrain acts done without jurisdiction, and to what courts it runs, 
 
 1037, 1038 
 lies, wherever act sought to be prohibited is a judicial act, by whomsoever done, 
 
 e. g., an order by Church Building Commissioners stopping up a footpath - 
 
 through-a churchyard, &o., 1038 
 before judgment, 1038, 1039 
 after judgment and execution, 1039, 1040, 1045 
 to the Ecclesiastical Court, 1040, 1041 
 to the County Court, 950, 1041—1045, 1046, u. 
 to coroner, W38 
 
 to the Lord Mayor's Court, 1045 
 not taken away by appeal, 1040, 1041 
 formerly issued against public nuisances, 217 
 ancient writ, of against waste, 253 
 proceedings in, 1046 — 1047 
 
 application for, operates as a stay of proceedings, 1046 
 dainagos— costs, 1022, 1046, 1048, n. 
 setting aside writ of issuing out of Chancery, 1047 
 
 PROMISSOEY NOTES. See Bills. 
 
 PEOSECUTION. See Costs— Malicious Prosecution. 
 
 PROSPECT. SeeYi-m. 
 
 PROSPECTUS. See Company— Dikeotoes. 
 
 PROTECTION ORDER. See Wiee. 
 
 PROVISIONS. SeeYooT,. 
 
 PUBLIC COMMISSIONERS, 
 by-laws made by, 37, 38 
 
 PUBLIC COMPANY. See Company. 
 by-laws made by, 37, 38 
 
 PUBLIC HEALTH. See Coepokation— Owneb. 
 acts relating to, 194 
 
 PUBLIC HOUSE, 
 
 owner of may eject persons acting in a disorderly manner, 572, 573 
 
 PUBLIC OFFICER. See Mayoe— Militaey Oppicee— Naval Opeicee— Sheeipp. 
 duty of, to perform mininsterial functions, 15, 16 
 not liable for neglect of subordinate officers, 16 / -^ C/ 
 
 conversion of goods by, 325 -^!^(2£,,<-i2-c-u-aj J-tT-^-Cc^ ^ Y 
 cannot sue for remuneration imposed by statute, ilnless expressly given, 56 
 character of, need not be proved unless it is specially denied, Zll 
 
 PUBLIC WORKS. See Commissionebs of Public Works. 
 
 PUBLISHER, 
 lien of, 443 
 
 PUMP. See Water— Well. 
 
 grant of right to use, implies right to repair, 86 
 penalty for fouling water in, 201 
 
 QUARRY, 
 
 negligence in management of, near highway, is indictable, 172 
 obligation to fence, 169 
 
 QUARTER SESSIONS. See Justices. 
 prohibition to, 1037 
 mandamus to, to hear appeal, 1071 
 
INDEX. 1155 
 
 QUO WARRANTO, 
 
 where an oflBce is full, b»t has been usurped by intruder, 1065 
 
 EABBITd. See Common— Game. 
 
 title to, when killed, or in a warren, 334, 335 
 remedy for crops or grass injured by, 267 
 
 RACE HOESES. See Horses. 
 
 RACE-STANDS, 
 
 injuries from falling of, 386 
 
 RAILWAY. See Railway Company. 
 mines under, 159 
 
 mines under, or adjacent to, 89, 90 
 trees overhanging, 285, n. 
 injuries to person going to, -on business, 189 
 injuries to children trespassing on, 401 
 
 RAILWAY COMPANY. See Common Cabeibk— Company— Scares — Sxatdtoet 
 
 Compensation. 
 not liable to an action for nuisances necessarily created in carrying out the powers 
 
 of their Act, 735 
 duty of, to make accommodation works, snob as gates, fences, culverts, &c., 770 
 disturbance of right of common by, 105 
 are liable in trespass for taking a man's land without previous perfonnance of the 
 
 statutory conditions, 773, n. 
 liability for damage done to highway during construction of, 184 
 negligence of, in not majdng cijlverts, &ic., to carry away waste -syater, 737 
 duty of, to maintain fences against adjoining owners and their cattle, but not 
 
 against persons or cattle trespassing, 180, 181 
 liability of, for dangerous state of their line, though the person injured js conveyed 
 
 in the carriage of another company, 507 
 liability of, for ruinous or insecure bridges, viaducts, embankments, &c., except in 
 
 case of extraordinary floods, &c., 183 
 duty of, to maintain brjdges, with their aj^roaches, &c., over highways, 183, 184 
 duty of, to maintain gates at level crossings, of a certain size, and to keep them 
 
 always closed, except for the passage of persons, cattle, &c., across the line, 
 
 184, 185 
 not Jjound to keep accommodation gates closed, 185 
 negligent management of stations by, 182, 183 
 not bound to fence their own yards, &c., 181 
 not liable for the negligence of contractors employed by them, 413, 414 , 
 
 but will be for the natural consequences of work properly performed by con- 
 tractor, and handed over to them, 414 
 are common carriers, 467 
 
 not liable for necessary nuisances in the carrying on the traffic, but are for un- 
 necessary on^s, e. g., noises unnecessarily made near a highway, setting fire to 
 
 property by sparks from the engine, &c., 737, 738 . 
 fires caused by, spreading to adjoining property, 250, 251 
 negligence of, or of its servants or agents, 382 — 385 
 
 in stopping at stations, 383 
 
 in not repairing bridges, &c., 384 
 
 in passing level crossings, 384, 385 
 
 causing injury to servants in their employ, 399, 400 
 duty of, to take reasonable precautions -for the security of its servants, 187 ' 
 not bound at its peril to provide roadworthy carriages, 382, 383 
 acceptance of goods or passengers by, to be carried beyond the limits of its own 
 
 Unej 486—488, 507 ,,.,,,, 
 
 conveyance of passengers, animals, or goods by, partly by rail and partly by sea, 
 
 487 488 
 liability of, for negligence in carrying servant, though the servant's fare be paid 
 
 by the master, 505 — 506 
 liability of, for injuries to servants injured by their negligence, but not to ma,ster, 
 
 907 " 
 liable for injuries to infants, though no fare paid, 388 _ 
 responsibility of, for injiuries caused to passengers in carrying out rules of, 183 
 obligation of, to carry passengers' luggage, 467. See Luggage, 488, 489 
 
 £l 13 £ £j ^ 
 
1156 INDEX. 
 
 RAILWAY COMPANY— continued. _ 
 
 liability of, for negligence of porters in delivery of luggage, 489 
 
 for loss of luggage placed in tlie same carriage with passenger, 489, 510 
 
 for loss of merchandise carried as luggage, 489 
 
 in delivering luggage at stations, 486, 489 
 
 for loss of luggage in excursion trains, 472, 481, 488 
 delivery of goods by, 485, 486, 489, 490 
 
 not liable for injuries caused by defective packing (unless patent), or other 
 negligence of consignor, 471, 473 
 negligence in delivery of cattle by, 181, 182 
 liability of, for escape of dogs, 471 
 
 not responsible for the malicious or negligent acts of strangers, 383, 384 
 not responsible for delay caused by the negUgenee of another company running on 
 
 their Une, 884, 469, 470 
 liability of, for negligence of their porters, at station used in common by other 
 
 companies, 25 
 evidence of negligence of, from the mere occurrence of the accident, 383, 384 
 power to make " reasonable " conditions as to receiving and delivering animals, 
 goods, or luggage, 480 — 483 
 
 what is a reasonable condition, 481, n., 483, 484, 486, n. 
 special contract with, for, carriage, under Railway Traffic Act, must be signed, 
 482 
 
 and the signature fairly obtained, 510 
 liability of, for negligence, though goods carried under a special contract, 483, 
 
 484 - 
 duty of, to afford equal facilities of carriage to all, 468, 469, 470 
 
 but not equal facilities for storage, 469 
 duty of, to give equal accommodation to all, 514, 515 
 
 but may charge lower rates for large consignments at regular periods, 515 
 charges of, must be equal — packed parcels, 492, 493 
 
 where passengers carried partly by rail, and partly by sea, 492 
 
 duty of, to give account how much is charged for use of railway, and how much 
 for unloading and delivery, &c., 493 
 responsibility of, for luggage left at cloak-rooms, 434, 435, 485 
 conversion of goods by, 327 
 
 liability of, for negUgeuce or detention of property by their servants, 506, 507 
 duty of, to disinfect cattle trucks, 467 
 
 to provide animals carried with food and water, 467 
 
 to provide means of communication between passengers and guard, 382 
 
 to consume their own smoke, 201 
 by-laws of, to be hung up at every station, &c., 703 
 
 how proved, 703 
 lien of, 490 — 492 
 
 for food supplied to animals carried, 467 
 
 not for disinfecting cattle trucks, 491 
 nor for goods previously carried, 491 
 arrest or assault by servants of, 596, 597 
 arrest by servants of, 584, 585, 934 
 
 are liable for not starting trains at time mentioned in their time tables, 852, 864 
 liability of, for false representations as to time of trains starting, &c., contained in 
 their time tables, 468 
 
 production of ticket only is not sufficient to prove contract with, time-bills must 
 be produced, 468 ' 
 
 duty of, to use all reasonable exertions to forward passengers : secus, cattle or 
 goods, 469 . L s > , 
 
 cannot prevent passenger from getting down at nearer station, if he has paid his 
 
 fare to a further one, 493 
 liability of, for libel, by publication of false telegram, 811 
 not liable for malicious prosecution instituted by their servant without their 
 
 knowledge, 627 
 may distrain engines," &c., encumbering their line, 549 
 
 where it carries on its business within meaning of County Court Acts, 9-17, 948 
 when entitled to notice of action, 765 
 
 reports of officials and medical men to, when may be inspected, 962 n., 963 n 
 protection of rolling stock and plant of, from execution or distress, 653. See 
 
 Addenda. 
 protection of property of, from action or execution (without leave of Court), after 
 
 Uing of a scheme of arrangement with its creditors, 653 
 summary proceedings against, for contravening the Railway Traffic Act, 504 
 injunction from paying dividends out of capital, &c., 1030 
 
 to enforce compUance with Railway and Canal Traffic Act, 513—516 
 
INDEX. Ugy 
 
 RAILWAY COUFANY-continued. 
 
 n^audamuB to, to make compensation for land, taken, or statutory injuries, 1069, 
 
 . to restore highway, 1070 
 
 mdiotment against, 220 
 
 KAIN. See Water. 
 
 EATmcATION. See Talse Impkisonment. 
 EATS, 
 
 damage caused by, in causing cisterns to burst or leak 69 
 
 mjunes caused by, to goods on board a barge, 471 
 
 EECAPTION. ^eCoNVEKsiON. 
 KEOEIVER, 
 
 may distrain, if appointed by Court of Chancery, but not otherwise, 523, 52i 
 EECREATION. See Easement. 
 
 right of, by custom, 102 
 
 right to go on land for, not claimable under Prescription Act, 118 
 
 EEOTOR. See Ecclesiastical Dilapidations— Incumbent - 
 
 IS entitled to freehold of church, chancel, and churohYard 278 279 
 
 IS entitled to keep keys of church, 280 ^ > , 
 
 right of, to compensation for churchyard taken under Act of ParUament 279 n 
 
 conversion of communion plate by, 280 ' ' 
 
 mandamus to institute, 1066 
 
 mandamus to, to swear in churchwarden, parish clerk, or sexton, 1066 
 
 REFERENCE. See Aebitbator— Costs. 
 
 EEEDSAX. See Convbbsion. 
 
 REGISTER, 
 
 orders for rectification of, 1085, 1086 
 
 EEGISTEAR, 
 
 of county court. See Bailiff. 
 
 of births liable for refusing to register a birth, r6 
 
 EEaiSTE.\TION. See Copiright. 
 of title, 271, u. 
 
 EBMAINDEBMAN. See Eevebsioneb. /^^•^x-.-z^ J" f- ^^ 
 
 RENT. See Distress — Landlord. 
 
 when payable with or without agreement, 521, 522 
 not due till end of day appointed for payment, 525 
 payment of, establishes the fact of a tenancy between payer and payee, 564 
 
 unless made under a mistake or under false representation, 561, 565 
 what payments of, are valid against landlord, 560 
 payment of, in advance, not valid against mortgagees, unless tenant is bound to do 
 
 it, 524 
 receipt of, Tsprimd facie evidence of title, 211, 270, 304, 985, 986 
 wrongful receipt of, for twenty years, against person rightfully entitled, 271, 275, 
 tender of, makes distress wrongful, 525 
 
 tender of, and expenses,- makes sale of distress unlawful, 541, 542, 543 
 tender of, may be made to bailiff who makes the distress, 542 
 
 REPAIRS. See Tenant. 
 
 doing, is evidence of occupation or ovniership, 211 
 
 ^^^^.'-Set^Z^/' ^^-^^^ /-^4%^^.^^^^/,^ 
 at common law, 551, 553 
 
 distinction between, and trespass or trover, 552, 563 
 not available against bailee claiming a Hen, 552 
 ■ must be made in county court, but action may be in county or superior court, 553 
 654 
 and if commenced in county court may be removed into superior court by cer- 
 tiorari, 553 
 for goods distrained damage feasant, 554 
 
1058 INDEX. 
 
 EEPLEVIN— confimueo!. 
 
 for goods ifhjtfbperly taken by distress or otherwise, except under process of superior 
 
 court, 722, 723 
 cannot be joined with another cause of action, 955 
 plaintiffs in actions of, 555 
 
 bailees, agisters of cattle, husband and wife, 555 ^ 
 declarations in, 557 
 pleas in, 557, 558 
 avowries in, 558, 559, 561 
 
 for double rent, 559 
 
 by joint-tenants, coparceners, &o., 559 
 payment into court in actions of, ^60 
 
 EEPOSITORY. te Houses. 
 
 REPUTED OWNEESHIP. /See Bankrupt— Title. 
 
 KETFEN. -See Mandamus. 
 
 EETUENING OFriCEB. See Mayoe— Sheeipi'. 
 duties of, partly judicial, partly ministerial, 28 
 liability of, for refusing to receive a vote, 28 
 
 EEVENUE OPFICEES. See Constable. 
 
 how far liable for detention of luggage, merchandise, ftc, 747 
 when entitled to notice of action, 765 
 
 EEVERSIONEE. See Landloed— Plaintiffs. 
 
 when entitled to sue for injuries to land, 70, 72, 75 
 when may sue for nuisance to land deniised, 202, 203 
 right of, to sue for waste by fire or otherwise, 253, 254 
 
 for obstructions of easements, e.g., a right of way or light, or p'rofe dS preniii'C, 
 
 when injury permanent or the obstruction is to a right, 145, 146, 149, 155 
 for obstruction of way by locking a gate, 149 
 for injury to right of support or light, 150, 153, 155 
 for the pollution of water, 208 
 for injury from eavesdi;opping, 213 
 for diversion of water from mill, 146 
 for timber unlawfully cut, 313 
 
 for alterations by lessee of premises, or cultivation, although preinises increased 
 in value thereby, 232, 233, 256, 257 
 and he has alternative remedy on a covenant, 233 
 to contest easements obtained over land on lease or in the hands of a tenant for 
 
 life, 132 
 to resist claim to easement, &c., after determination Of term, 118 
 right of entry of, to inspect waste, 247 
 right of, if house or buildings destroyed by fire, 247 — 252 
 may sue for damage to his reversion, 289, 290 
 cannot sue for a mere trespass, 146, 289, 290 
 joint-teilants, coparceners, &c., to join in action, 290 
 
 when liable fbr creation or continuance of n. nuisance on land demised, 147, 165, 
 166 
 although he has parted with the land, 165 
 evidence of, by receipt of rent, 304. See EsNTr 
 damages recoverable by) in actions for nuisances to demised premises, 213, 214 
 
 EIDINa. See Hoeses. 
 
 injuries occurring from negligence in, 23 
 
 EIGHT, 
 
 procuring the violation of, is a tort, 8, 9 
 
 EIOT, 
 
 liability of hundred for damage caused by, 288 
 
 RIPAEIAN PEOPEIETOE. See Injunction— Eiveb—Wateb. 
 right of, to the use of water, 121 
 to fish. 111 
 
 to take water from canal, 69 
 to remove obstructions to flow of water made by another proprietor, e. g., by 
 
 enlarging a dam or weir, 197 
 with consent of adjoining rip,irian proprietor, to alter channel of stream, 67" 
 whether he can assign his right to water tB a person, hot a riparian proprietor, 67 
 
IXBEX. 1159 
 
 RIVER. See Bathing — Conservators — Fishery — Water — Watercourse. 
 soil of tidal, between high and low water-mark is primd facie in Crown, 280 
 soil of navigable, is vested in Crown; 175 
 navigable, title to soil of, towing paths, and banks of, 88, H., 284, 285, 303 
 
 public right of navigation in, 282 
 
 right of public anchorage in, 281 
 
 right to tow on banks of, 88 
 obstruction to navigation of, when actionable at suit of private individual, 201, 202 
 obstructions in navigable, by oyster beds, sunken vessels, telegraph wires, wharfs, 
 
 piles, &c., remedy by action or indictment, 175, 176 
 obstructions In, by wharfs, sunken vessels, &o., when indictable, 226 
 removal of obstructions by weirs, nets, &c., in navigable, 198, 199 
 penalty on persons throwing rubbish into navigable, from passing vessels, 193 
 non-navigable, title to soil of, 282 
 
 encroachments on, by embankment, 3 
 
 encroachments on, by erecting jetty, &c., unlawful, 282 
 
 enlargement of prescriptive, dam on, right to remove, 197 
 
 right of stepping stones across, does not include right to have bridge, 197 
 
 pollution of, may be restrained by injunction, 770, 771 
 
 ROOF. See Water. 
 
 ROOKS, 
 
 driving away, from a rookeryj not action.ible, 10 
 
 SAILOR, 
 
 may sue shipowner for not keeping medicines on board, 40 
 
 SALE. See Bill of Sale— Conversion— Title. 
 effect of, on title to goods, 339, 340 
 in market overt ehitoges the property, 337 
 pretended, does not pass the property, 372, 373 
 colourable or fraudulent, 340, 341 
 obtained by fraud is a nullity, 321 
 
 of goods taken by pirates, 337, n. . , . . 
 
 right of, where goods deposited as security for loati to bfe repaid at a certain time, 
 
 °331 
 distinction between, and bailment, 426, n. 
 
 SALMON, 
 
 statutes relating to, 194 
 
 inspectors and commissioners of fisheries, 194, n. 
 
 SALVAGE, - ,...,.,„„ 
 
 recovery of, where both ships in fault, iA^ 
 lien for, 438 
 
 SAND, ^fee Sea-shore. ,.4 m.i 
 
 claim to take in alieno solo, when valid, lO^i 
 
 SCHOOL, .: 1,, 11 
 
 interference with, when aotionabie, ii 
 keeping, not necessarily a nuisance, 167 
 
 SCHOOLMASTER, 
 
 has not a freehold office, 1064 
 
 may lawfully chastise his pupils, 602 
 
 ^"^^rS^^OT infringement of property in, by copying, &c., 45 
 
 SEA. See Bathing— Fishery— Sea-shore— Sea- Walls. 
 soil of, is vested in Crown, 175 
 title to land gained from, 282, n. 
 
 SEAMAN. See Sailor. ^ 
 
 smuggling by, on board shif), is a tort, b 
 
1160 INDEX. 
 
 SBA-SHOKE, 
 
 right to soil of, 111 , . . ,-, 
 
 title to, between high and low water mark, is prvmA facie in Crown, 280 
 
 may belong to manor by grant from Crown, 280, 281, 282 
 
 is primA facie extra-parochial, 280 * 
 
 title to waste land adjoining, 282 
 
 or land gained from sea, 282, n. 
 custom to taJke sand and gravel from, 102 
 
 to 4ry nets on, 111 
 right to pass over, to bathe, &o., 112 
 shingle on, powers of Board of Trade over, 102, n., 280, n. 
 
 SEA-WALLS, 
 
 right to erect, 177 
 
 erection of, not actionable, 3 
 
 duty of person benefited by, to repair, 110, 111 
 
 liability for non-repair of, by corporation, 930 
 
 repair of, by Commissioners of Sewers at expense of owner, 229 
 
 non-repair of, by lessee, is waste, 232 
 
 destruction of, by tempest, &c., is not, 232 
 
 dedication of highway along, 222 
 
 injuries to, from ships running against, 397 
 
 SECUKITIES. See Title-Deeds. 
 
 right to possession of, belongs to person beneficially interested, 460 
 
 SECUKITY FOR COSTS, 1025, 1026 
 
 SEDUCTION. See Costs— Parent. 
 when actionable or not, 34 
 action for, cannot be brought in, but may be remitted for trial to, county court, 
 
 948 
 who may sue for, 911 
 declarations in actions for, 911 
 
 pleas in actions for, not guilty, and evidence thereunder, 911, 912 
 evidence in actions for, proof of service, 912 
 damages in actions for, 912 — 914 
 
 SELF DEFENCE, 
 
 acts done in, not actionable, 2 
 
 SBKVANT. See Master — Slander— Woekman. 
 
 is responsible for wrong in carrying out his master's orders, 364, 365 ' 
 
 is respon^ble for injuries to land committed by order of his master, 70, 71 
 
 is liable for his wrongful acts done by command of master, though master may also 
 
 be, 506, 935, 936 
 liability of, for negligence, though master also liable, 388 
 when master liable or not for acts of, 23 — 26 
 master liable for negUgence of, 386, 387, 388 
 master not liable for injuries caused by negligence of, to fellow-servant, 188 
 
 though engaged by him, 412 
 must indemnify the master from the consequences of his negligence, 26 
 the proper person to sue for injuries from negligence of bailor in not disclosing the 
 
 dangerous nature of goods bailed to the servant's master, 452 
 may sue for a WTOngfal act, e.g., assault, though master may sue also, 920 
 
 i.e., if he is thereby deprived of his servant's services, 594 
 may sue carrier for negfigenoe in carrying him, though his fare is paid by his 
 
 master, 505 
 injuries to, from dangerous premises or employment, 186, 187 
 cannot recover for injuries received in a dangerous employment, if rules made for 
 
 his safety be habitually violated, 402 
 inducing to leave service, or harbouring after he has left, is actionable, 28, 906, 
 907 
 
 unless master has recovered damages from the servant for breach of his con- 
 tract of service, 966 
 
 damages recoverable, 914, 915 
 possession of cottage, &c., by, is the possession of the master, 272, 273 
 possession of goods, by, is the possession of the master, 363, 364 
 conversion of goods by, 325, 326 
 not entitled to take away their livery, 336 
 penalty on, for carelessly or negligently causing fires, 251 
 giviftg character of, is a privileged communication, 788, 789 
 
INDEX. 1161 
 
 SERVICE. See Seduction. 
 
 SERVITUDE. See Easement — Pkopit a pbbndbe — Support. 
 prsadial or urban, 58, 59 
 natural or conventional, 59 
 
 instances of, given by Bracton, and how created, 80, 81 
 o£ receiving water from higher, and transmitting it to land lower down the stream 
 
 59, 60 
 of support from adjoining land, 60, 63 
 torts arising from the disturbance of rights of, 57, et seq. 
 transfer of, passes by sale to vendee, 63 
 
 SETTLEMENT; See Mabhiagb Settlement— Wife. 
 
 property under, does not pass to trustee on bankruptcy of husband, 358 
 -effect of bankruptcy on, 348, 349 
 
 SEVERANCE. See Statutoey Compensation. 
 right of landowner to compensation for, 91 
 
 SEWAGE, 
 
 acts for utilization of, 194 
 
 SEWER. See Commissionebs op Sewees— Drain— Tenant — Watee. 
 public, repair of, 229 
 grant of right of, 96 
 
 obligation of occupier to keep repaired, 162, 163 
 power of making, through private property, 194 
 expense of construction of, how recoverable, 194, 195 . 
 
 SEXTON, 
 
 rights of, in burial ground substituted for old churchyard, 280 
 mandamus to elect, 1065 
 
 SHAET, 
 
 obligation to fence, 168, 169 
 
 illegality of, adjoining turnpike road or highway, 171, 171, n., 172 
 
 SHAREHOLDER. See Company — Registbk— Shaees. 
 duty of, to execute transfer of shares, 15 
 remedy of, by mandamus against company. See Mandamus. 
 
 SHARES, 
 
 in reputed ownership of bankrupt, 350j 352, 355 
 mandamus to register transfers of, 1068 
 
 SHEEP. See Cattle. 
 
 negligent management of, if diseased, 23 
 sale of diseased, when unlawful, 3, 4 
 injuries to, from dogs, 23, 192. See Dog. 
 importation of, from abroad, 4, n. 
 
 SHERIFF. See Intebpleadee. 
 how far a judicial officer, 641 
 is liable for refusing a poll at elections, 27, 28 
 
 duties of, at elections, 28 , , ^. ^ ^ . , ■ . 4. i «7o 
 
 may order person disturbmg county election to be taken mto custody, 673 
 duties of, with regard to replevin, now transferred to registrar of County Court, 
 
 553 
 duties of, in compensation cases, 755, 756, 758 ^ „ . ^ , „„„ 
 
 disqualification of, in a railway compensation case on account of interest, bdB 
 certificate of, on inquisition for costs, 1011 1013 1016 
 liabiUty of, for escape of judgment-debtor, 660, 661, 667, 672 
 action against, for money paid under threat of execution, which the sheriff had no 
 
 right to levy, 680 , , .^ 0.0 
 
 sale bv only conveys such title as the sheriff possesses, 848 
 sale byi conveys no better title than the execution-debtor possessed, 657, 671 
 conversion of goods by, 370, 371 -,,,,, rk^ r-to 
 
 duties and UaUUties of, in the execution of innU 644-653, 672 
 
 must make due inquiry before executmg writ of JJ. fa., &c., 846 
 
 but may sue persons officiously interfering, and giving false information and 
 directions, 846 
 
 execution levied by wrong officer, 645 
 
Ilfi2 INDEX. 
 
 SB:EB1¥F— continued. 
 
 must execute the writ that is first delivered to himii unless countermanded, 
 
 645, 646 
 
 liability for the acts of the under-sheriff and his officers — special bailiflFs, 
 
 646, 647 
 
 entering the house of third persons, 647, 648, 649, 655 
 
 power to break open a house or outbuildings in the execution of process, 643, 
 
 649, 650 
 illegality of seizure, if entry illegal, 649, 650 
 remaining in the house an unreasonable time, 650 
 
 seizure of goods of wrong person, though of same name as defendant, 660, 6ol, 
 657, 670 
 
 or of wrong person, 667, 668, 670 
 seizure of goods of testator for debt due from executor, 651, 652 
 method of levying, some overt act must be done, a man left in possession, &c., 
 
 652 . . : 
 
 must execute subsequent valid writ against goods, though he has previously 
 
 seized under a void one, 652 
 seizure of protected or privileged goods^ in Royal Palace, &c., 652 
 
 rolling stock or plant of railway company, 653 
 seizure of goods bond Jidesold before the levy without notice, 662, 663 
 seizure by, under writ of goods which haV6 been given to another, 336 
 carmot sell property on which execution-debtor has a lien oiily, 450 
 seizure and sale by, of goods wMch the execution-debtor has hired, is only 
 
 actionable against, if damage ensues, but the real owner may sue the pur- 
 chaser, 671 
 seizure of goods of companies after a winding-up order, 652, 653 
 seizure of property of raUway company after filing of a scheme of arrangement 
 
 with its creditors, 653 
 seizure of goods and receipt of notice of adjudication of bankruptcy before 
 
 sale, 665, 656 
 duty of, to pay rent to landlord before- removal of goods seized under an 
 
 execution, 631 
 where rent (not ground-rent) is in arrear from executioii-debtor, 656, 657, 672, 
 
 677, 678 
 sale of goods seized, 667 
 
 -may sell goods seized by auction or otherwise, 342, 343 
 
 liability of, for selling more goods than necessary, 321, 322 
 
 sale of goods by, in possession of bailee or pawnee, 322 
 duty of, when execution levied for more than £60, 347, 343 
 method of arrest, 660 
 
 arrest of wrong person, or of right person, under wrong name, 6§7, 668, 670 
 
 where the injury, arrest, &c., has been caused' by the misrepresentation of 
 judgment-debtor, 662, 663 
 
 arrest or seizure on Suudajr, or of clergyman while performing divine service, 
 668 
 
 arrest under void writ, does not authorise detainer under valid one ; secus in 
 the case of goods, 652, 658 , 
 
 liability of, for seizure or arrest under forged writ, but not under one void 
 for irregularity, 661, 662 
 
 arrest of privileged persons, 669 
 
 not liable for arrest of person privileged from arrest as a witness, 626 
 countermand of writs, 669, 660 
 power to receive the judgment debt, 669, 660 
 
 may discharge judgmetit-debtor on payment of debt with consent of judgment- 
 creditor, 624 
 
 or on written order of attotney in the cause, 661 
 return to writ — false return, 663, 677 
 fees payable to, extortion, 663, 664, 672, 673, 681 
 payment of proceeds to execution-creditor, 667 
 power of, to protect himself from actions, and to compel rival claimants to 
 
 property seized under an executioti to interplead, 653 — 666 
 except in cases of claims for rent, 654 
 or where sheriff has illegally broken open an outer door, or otherwise 
 
 misconducted himself, or has delayed in claiming the protection of the 
 
 Court, 655, 666 
 plaintiffs in actions against-,670 
 Declaration against : 
 
 for not levying, or for an escape, 672 
 
 for removing goods without paying the rent due to the landlord, 672 
 
 fcr extortion, 672, 673 
 
INDEX. 1163 
 
 SHERIFF— coniJK ued. 
 
 Pleas in Actions against : 
 
 not guilty, 673 
 
 justification in execution of legal process, 673, 674 
 
 replications, 674 
 evidence in actions against, for the plaintiff, 675 — 677 
 for the defendant, 677, 678 
 damages in actions against, 678 — 681 
 injunction to restrain from selling landlord's fixtures, 657 
 prohibition to, when it lies, 1039 
 
 SHINGLE. See Sea-shoke. 
 
 SHIPMASTER.' &c Master op Ship. 
 
 power of, to preserve order, &o., in his steamer, 582 
 
 may lawfully chastise seamen or imprison passengers if necessary for the preserva- 
 tion of discipline or the safety of the ship, 602, 603 
 duty of, to give notice to consignee of arrival of goods, 486 
 
 SHIPOWNER. See Mastee of Ship. 
 is a common carrier, 467 
 liability of, for negligence of master, 390 — 397 
 
 unless the charter-party amounts to a demise of the ship, 394, 395 
 how far exempt from liability for negligence of master where the employment of a 
 
 pilot is compulsory, 390, 391 
 liability of, for loss of life or damage to goods, limited by Merchant Shipping Act, 
 
 391, 395, 422 
 liability of, for acts of crew appointed by master, 23, 24 
 landing of goods by, where consignee fails to take them away, 490 
 liability of, for not keeping medicmes on board, 40 
 liability of, for loss of gold, silver, &c., or for loss by fire, or robbery, unless value 
 
 is declared, is limited by statute, 437, 489 
 may sue master of ship for the consequences produced by the latter having been 
 
 guilty of smuggling, 26 
 may recover from person guilty of smuggling on board his ship the loss he thereby 
 
 incurs, 6 
 Uen of, 438, 447 
 
 SHIPPER. See Bailob. 
 
 SHIPS. See Couet op Admibaltt— Master oe Ship— Shipmaster. 
 negligence in the management of, 390 — 397 
 negligent navigation of, 422 
 
 mooring of, across navigable fiver, when actionable, 202 
 duty of, to show a light, 393, 394 
 jurisdiction of Court of Admiralty and Coimty Court in casfes of oolhsion between, 
 
 or torts in carriage of goods by, 953 
 
 what are ships, 953 . j. r i, 
 
 collisions between, remedy in Court of Admiralty where both m fault, 410^ 
 collisions between, causing death or personal injury, inquiry by Board of Trade a 
 
 condition precedent to action, 410 « , . 
 
 collisions between, damage how apportioned in Court of Adimfalty, 401, 402 
 collisions between foreign, out of English jurisdictibn, 392 
 title to, 332, n. 
 
 damages in action for conversion of, 376 
 
 remedy for, if wrongfully seized for being engaged m slave trade, 365 
 seizure of, under Eoreign Enlistment Act, 365, n. 
 damage for seizure of, under Customs Act, 379 
 sale of, if formerly engaged in acts of piracy, 337, n. 
 injuries to persons going to, on business, 186, 189 
 master of, liable for throwing rubbish into navigable river, 199 
 injuries to, while under convoy of man-of-war, 30 
 
 obstructions in navigable river from sunken 176 ^r ,. .. -, 
 
 sunk in navigable river, whether owner liable to indictment for obstructions caused 
 
 by, 226 . 
 
 in reputed ownership of bankrupt, 354 
 
 Uen on, 439, 439, n. 
 
 joint owners of, should join in actions for injuries to, caused by,neghgence, 411 
 smuggling by master of. See Shipowner. 
 
 SHIPWRIGHT, 
 
 lien of, 439 
 
1164 INDEX. 
 
 SHOP, 
 
 injuries to persons entering, on business, 189. 
 
 SHOPKEEPEfi., 
 
 right of, to erect stalls in front of their shops, 13, n. 
 
 SINGER. &e Libel. 
 
 SLANDER See Costs— Libel. 
 
 distinction between, and Ubel, 774 — 776 
 
 not actionable, may become so, if printed, 773 
 
 and printer or publisher, not utterer, is liable, 775, 776 
 when actionable, i 
 each utterance of, is actionable, 965 
 repetition of, who liable for, 5 
 repeater of, cannot discharge himself by giving, up name of original utterer, 811, 
 
 8*7 _ •., '. 
 
 of a wife, when actionable, or not, 34 
 malice is implied in, 778, 779 
 
 but may be rebutted,- 798, 799, 805, 809 
 mere abuse is not, unless spoken of a man in his profession, business, or employ- 
 jnent, 797—799, 800, 801, 802 
 
 or special damage ensues, 798, 801, 802 
 by imputation of an indictable offence, 798, 799 
 
 or that a man has a contagious disorder, 799 
 puffs of rival tradesmen, 799, 800 
 
 by clergymen, 802, 803 ^ 
 
 causing dismissal of servant, when actionable, 803, 804 
 special damage caused by, must be the natural result of the words- spoken, and not 
 
 the wrongful or capricious act of a third person ; — %he repetition, therefore, by A. 
 
 of slanderous words used by B. may be actionable, though the original utterance 
 
 by B. be not so, 803, 804, 805, 822, 824, 825 
 pri-vileged statements — 
 
 respecting servants, or in course of public duty, 805, 806 
 
 charges of felony, &c., 806 
 
 by advocates, defendants, or prisoners, in course of judicial proceedings, 621, 
 806, 807 
 
 by judges or magistrates in the course of their duty, 637, 807, 808 
 interpretation of words used, 808 
 of title, 808—810 
 
 special damage must be proved, and malice and falsehood, 810 
 
 to a patent, 810 
 action for, cannot be brought in, but mav be remitted for trial to, Count-y Court 
 
 948 •' - ' 
 
 plaintiffs in actions for, 810, 811 
 
 partners, 811 
 
 on partners is joint, and they may sue jointly, 929 
 defendants in actions for, joint or separate, 811 
 declarations for, 811 — 814 
 
 statement of special damage, 813, 814 
 plea of not guilty in actions for, and e-vidence thereunder, 814, 815 
 
 where the words are not actionable -without special damage, 958 
 
 of the truth of the slander, 816, 817 
 evidence in actions for, for the plaintiff, 817, 819, 820, 821, 822, 823 
 
 of malice, 824 
 
 of special damage, 824, 825 
 
 of the trade, profession, &c., of the plaintiff, and that the words were spoken of 
 him as such, 825, 826 
 evidence in actions for, for the defendant, 826, 827 
 
 truth of the charge or accusation, 826, 827 
 judge's direction to jury in actions of, 829, 830 
 damages recoverable in actions for, 827 — 829, 997, 998, 999 
 
 evidence of apology in mitigation of, 829 
 damages in actions for, must be stated in declaration, or evidence of cannot be 
 
 given, 957 ' 
 
 costs' in actions of, 1009—1011, 1014 
 
 arrest of judgment or' setting aside verdict in actions of, 830, 831 
 indictment for, 831—833 
 
 costs on, 1022 
 
 SLUICES, fe Sea-Walls. 
 
INDEX. 1 165 
 
 SMELL. See Injunction — Prksoription. 
 when amounting to a nuisance, 163, 164: 
 
 SMOKE, 
 
 nuisance arising from, not actionable by reversioner, 203 
 statute for prevention of, 194 
 penalties for non-consumption of, 201 
 consumption of, in Birmingham, 163 
 injunction against injuries arising from, 215 
 
 SMUGGLING. See Shipowkeb. 
 
 torts caused by, to the master of the vessel on which it occurs, 6 
 
 SOLDIER, 
 
 cannot sue his commanding officer for maliciously discharging him from the reo-i- 
 ment, 621 j = =, 
 
 SOLICITOR See Attorney. 
 
 SPECIFICATION. See Patent. 
 
 SPORTING. See Game. 
 
 right of, when an incorporeal right in gross, 97, ii. 
 
 SPEING GITNS, 
 
 setting, a misdemeanour, except in a dwelling house, 168 
 
 STAGE COACH. See Coach. 
 
 STAGE PLAY. See Copyright— Novel. 
 
 STAIiLS. See Shopkeeper. 
 
 STANDS. See Race-Stands. 
 
 STANNARIES, 
 
 customs of, to dig for tin, 103 
 
 STATION. £fce Railway. 
 
 STATUE. See Sculpture. 
 
 STATUTE. See Bye- Laws— Compensation — Penalty — Statutory Compensation. 
 injuries caused in the necessary execution, with due care, of powers given by, are 
 
 not actionable, 734, 735 
 for injury resulting from the execution of, without negtigenee, the remedy is on 
 
 the statute, but if the injury is the result of negUgenoe or wrongful act, an action 
 
 lies, 767 
 providing a specific method of obtaining compensation for injury, no other remedy 
 
 available, 40, 750, 751 
 injuries from negligence in performance of work under, are actionable, 736 — 741 
 action for breach of duty or obligation created by, 38, 39, 40 
 benefits given by, and burdens imposed by, are co-relative, 56 
 right of support to land taken under, 89, n. 
 duties on public officers imposed by, 66 
 duty imposed by, of fencing machinery, 188 
 
 on railways of maintaining fences, 180, 181 
 
 for purpose of making river navigable, 176, 177 
 
 cannot be avoided by showing that some other person ought to have performed 
 it, 767 
 powers given by, for drainage of land, 60 
 
 for abatement of nuisances, 194, 195 
 
 over rivers and canals, 69 
 
 for the regulation of salmon fisheries, burials, public health, and metropolitan 
 buildings, for the prevention of smoke, and the utilisation of sewage, 194 
 no action lies for doing a thing Iprohibited by, unless damage suffered by plaintiff 
 
 beyond what he suffers in common with everyone else, 976 
 limitation of time for bringing actions for injuries committed under, 763 
 
 commencement of period of limitation, 763 
 actions for injuries committed under, must generally be preceded by notice, 764, 
 
 765. See Notice op Action. 
 directing actions to be brought against a clerk of a board or commissioners ia 
 
 generally compulsory, 768 
 
1166 INDEX. 
 
 STATVTE— continued. 
 
 ' pro-visions protecting persons intending to act in pursuance of, §39, 59X 
 pleas of justification under, 769 
 
 costs in actions against person intending to act under, 1019, 1020 
 powers given by, if exceeded may b,e restained by injunction, 217. See Injunciion 
 injunction to prevent unnecessary injury in the execution of, 769 — 771 
 against nuisances created under, 217 
 
 STATUTE OF LIMITATIONS, 
 
 provisions of, as to actions of tort, 970 
 commencement of the period of limitation, 970 — 972 
 
 in cases of excavation of land, &c., 971 
 
 in cases of slander or false imprisoflment, 971 
 
 in cases of negligence or detention of goods, 971, 972 
 
 in case of conversion of timber by tenant for life, 236 
 - in case of boundary waiis, 286 
 idth regard to the recovery of land, 271 — 278 
 
 in case of unopened mines, 272 
 
 in case of occupation of cottage, &c., by poor relations, servants, or agents, 272, 
 273 
 
 accrual of right of entry on death, alienation, or forfeiture, 273 
 
 possession by tenants at wiU, mortgagors, cestui que trusts, persons let into 
 possession under an agreement for purchase, &c., 273, 27 i 
 
 possession by tenants from year to year, 274, 275 
 
 purchasers of trust estates, 274 
 
 effect of wrongful receipt of rent, 275 
 
 entry, or continued claim, 276, 277 
 
 possession of coparceners, joint-tenants, or tenants in common, 275 
 
 possession of younger brothers, or relations, 276 
 
 acknowledgments of title, 276 
 
 in case of ecclesiastical, or elemosynary corporations, 276 ~, 
 
 in case of disabilities, 276 
 
 ■in case of concealed fraud, 276 
 
 in case of entry only, or entry and expulsion, or a fresh agreement made, 27? — 
 278 '. , . 
 
 in case of mortgagees, 278 
 extension of the period in certain cases, 972 
 effect of, on lien, 438 
 
 STATUTORY COMPENSATION. See Compensation— Injunction. 
 does, not apply to injuries caused by. negligence, 750 
 
 or to negligent or wrongful acts, 760, 761, 767 
 what claimable by landowner whose laud has been taken under statutory powers, 
 
 and what by landowner whose land has not, but who has been injured by the 
 
 works, executed by the company, commissioners, &o., 748, 749 
 amount of, ascertainable by arbitration, 749 
 
 but not the legal liability to pay, 749, 760 
 where amount is ascertainable in one particular way, e. q., by arbitration, or 
 
 before justices, no other method of obtaining is; available, 760, 751, 762, 753, 
 
 767 
 under Lands Clauses, or Eailway OUuses Act, how obtainable, by arbitration, by 
 verdict of jury, or before justices, 751, 752 
 
 if case not within statute, the Court of Chancery has jurisdiction to, decide on 
 the claim to, 752 
 for dust and dirt from railway works, 763 
 for obstruction to light and air, 763 
 for depreciation of property, if but for the statute, the act of the railway, or 
 
 other company, commissioners, &c., would have been actionable, 753 
 for diversion, or narrowing a highway, or tumpilce road, 754 
 for substitution of roadway for waterway, 754, n. 
 for obstruction of private way, or access to house, 763 
 for vibration, and the noise and smoke of railways, 754 
 for nuisance arising from railway platform overlooking dwelling-house, 768 
 for subsequent damage, 760, 761 
 for the whole building, if pajrt taken, 747 
 or severance, 754, 765 
 alue of land and damage to it, how assessed, 756, 767 
 
 prospective damage, 766, 757, 760 
 to lessees and tenants from year to year, 754 
 notice by person whose land is taken of the amount, &o., claimed, 755, 756 
 
INDEX. 1167 
 
 STATUTOKY COMPmSXTIOi^-cordinued. 
 action for, if company makes default, 755, 75S 
 declarations in actions for, 758, 759 
 judgment on sheriff's inquisition not conclusive, 759 
 mandamus to obtain, 1069, 1070 
 costs on, 1023 
 
 STEAM-BOAT COMPANY, 
 
 power to make "reasonable" conditions as to receiving and forwarding animals 
 
 or goods, 480 — 48i ® 
 
 duty of, to disinfect cattle pens, 467 
 lien of, for food supplied to animals carried, 467 
 
 STEAM-BOATS. See Shipmasteb— Steam- Boat Company. 
 duty of, to consume their own smoke, 201 
 
 STEAM ENGINES. See Steam Ploughing Machine. 
 use of, on highways legalised by statute, 172 
 
 unless they amount to a public nuisance, 219 
 illegality of, adjoining highway, unless screened from view, 171 
 illegality of, adjoining turnpike road, 171, ii. 
 
 STEAM PLOUGHING MACHINE, 
 
 legality of, adjoining highway, or turnpike road, 171, n. 
 
 STEAM VESSEL. See Shipmastek— Steam-Boats. 
 
 STEPPING STONES. See Eiveb. 
 
 STEWARD. See Court Baron. 
 lien of, 446 
 
 STOCK, 
 
 in reputed ownership of bankrupt, 350 
 
 STOLEN GOODS, 
 
 may be retaken, 361 
 
 action for, when it wiU lie, 31, 32 
 
 STONE. See Minerals — Quarry. 
 
 STOPPAGE IN TRANSITU", 
 
 right of, in unpaid vendor of chattels, 433, n. 
 biU in equity to enforce, 1032 
 
 STOEM, 
 
 non-liability for accidents arising from effects of, 169 
 
 STREAM. &e Water. 
 
 STREET. See Tenant. 
 
 SUBSOIL. ;Sce Support. 
 
 SUMMARY CONVICTIONS, fe Justices. 
 under by-laws, 35 
 
 SUNDAY, 
 
 execution or arrest on, illegal, 658 
 
 SUPERFLUOUS LAND. See Company. 
 
 SUPERINTENDENT OE CUSTOMS. See Customs. 
 
 right of lateral or subjacent, from adjoining or superjacent laud, 60—63 
 right of, from adjoining land, 58, 179 
 right of, from one house to another, 92, 93 
 prescriptive right to, how gained, 124, 125 
 between adjoining houses, 124, 125 
 
1168 INDEX. 
 
 SUFFOnT— continued. 
 
 right of, between owiier of surface and owner of mines, under an Enclosure Act, 
 159 
 between owners of upper and lower floors of house or warehouse, 177 
 for railway or canal bridges, viaducts, &o., 91 
 when it passes as incidental to a conveyance of land, 88, 89 
 when land taken under the provisions of an Act of Parliament, 89, n. 
 when land weighted with buildings, railways, or canals, 89, 00 
 where separate storeys of house belong to different people, 93, 94 
 when owner alienes the surface, reserving the mines, 96 
 abridgement of right of, by contract, 63 
 
 no right of action for injuries to, till actual damage sustained, 75 
 declarations for injuries to the right of, 72, 73 
 by reversioner, 150 
 in actions for injury to, against adjoining proprietor, 149 
 
 or a stranger,, 150 
 injunction to prevent disturbance of right of, 77, 158, 159 
 
 SURFACE. See Sotpobt— Water. 
 
 SURGEON, 
 
 negligence of, 403; 918 
 
 SURVEYOR, 
 
 negligence or fraud of, in refusing certificate of work done, 406, 407 
 
 SURVEYOR OF HIGHWAY, 
 
 not liable for non-repair of highway, 17 
 
 not liable for injuries caused by non-repair of highway, 740, 741 
 
 but is for leaving heaps of Stones, &c., unlighted, 741 
 is entitled to notice of action, 766, 767 
 
 SWEARING. &«CtJESE. 
 
 TALLOW, 
 
 manufactory, is a nuisance, 162, 164 
 
 TAN- YARD, 
 
 is a nuisance, 162, 163, 164 
 
 TAX-COLLECTORS. See Rbvenhb OrnoEBS. 
 
 TELEGRAM. See Tblegeaph Companies. 
 
 is a post-letter, within 7 WiU. IV. & 1 Vict. c. 36, 437, n. 
 production of, in court of law, 437, n. 
 
 TELEGRAPH COMPANY. See Eleoteic Teleoeaph Company. 
 negligence of, in delivery of messages, 437 
 injuries to submarine cables of, 176 
 posts of, on highway, are indictable, 225 
 
 TEMPEST. See Stoem. 
 
 TENANCY. See Ocodpation. 
 
 TENANT. See Damages — Fixtuees^Joint-tenants — Lessee — Tenants in Com- 
 mon — Tenant-eight — Waste. 
 for years, rights of, in respect of brick-earth, gravel, and minerals generally, 233, 
 
 in respect of woods, timber, underwoed, streams or ponds, fish, pigeons, same. 
 &c., 233, 234, 235 r , , f & , ^ i 
 
 has the property in bushes, but not in trees, 285 
 is entitlejJ to, cuttings of fences, 285 
 for Ufe, rights of, with respect to timber, underwood, mines, &c., 235, 236 
 
 without impeachment of waste, rights of, 247 
 for years or at will, liability of, for waste, 232 
 
 tor life or years now liable for waste, commissive or permissive, 230, 231 
 at will, not liable for permissive waste, 231 
 from year to year or at wiU, waste by, 234, 235 
 for life, waste by, 235, 236, 237 
 
INDEX. 1169 
 
 TF.N ANT -continued. 
 
 "tvira?aiSrrsl\reSt247' '*""'" "'^ ''"'"' P>=en.i.e, but remedy 
 from year to year, liability of, for repairs, 234 
 tor life, liability of, for repairs or to rebuild, 235 
 
 ™f 8^°2'56!^2T7*'°" °^ ^'■^'"'''' "'■ ''^"i™*^°"' tl^o^gli ^'^l^e tliereby in- 
 for^years, must not convert arable land into pasture, or vice versd, or destroy fences, 
 
 liabiUty of, for obstruction of entry to inspect waste, 247, 258 
 for a term, not bound to rebuild, 231 
 
 _ liability of, for repairs, 231, 232 ' 
 
 liability of, for non-repair of bouse, 178 
 
 liability of, for stone, timber, or rubbish being placed on highway while repairs 
 _ gomg on to his house, 174, 175 ^ 
 
 right of, to cut timber for repairs, 235 
 for years, waste by, by non-repair of sea-wall, 232 
 
 by alteration of premises, 232, 233 
 bound of common right to keep pipes, sewers, drains, privies, &c.', repaired, if used 
 
 by him, 162, 206, 207, 211 r . j r . 
 
 when liable for expenses of paving, 39 
 is liable for non-repair of fence, 147, 291 
 liability of, to repair highway in certain cases, 227 
 
 duty of, to keep all accessories to his premises in a proper and safe state, 173, 174 
 _ e. g. to secure shutters, swing doors, cellar doors, &c., 169, 170 
 is liable for injuries to third persons from unfenced holes or dangerous areas, &c., 
 on his premises, if the person injured was rightfully there, 169, 171, 172, 173 
 or for the dangerous state of pathway to his house, 170 
 when liable or not for nuisances from fall of ruinous buildings, 211 
 when liable for injuries to passengers from things falling from his house into the 
 
 street, 169 
 liability of, for using premises demised so as to create a nuisance, 166, 203, 
 204 , ' ' ' 
 
 for explosions of gas, 252 
 - -for fires, negligently or otherwise caused, 247 — 252. See Fire, 
 for acts of ;^ersons appointed by his bailiff, 24 
 holding over, is liable for all consequential damage, 314 
 
 except for the holding over of his sub- tenant in an action for mesne profits, 315 
 cannot dispute his landlord's title, 699 
 
 but may show it has expired, 952 
 statements by, in derogation of his landlord's title, are not admissible, 154 
 encroachments made by, enure to benefit of landlord, 271 
 if driven from his holding, by the menaces of a third_ person, 10 
 user by, of land opposite his house between carriage and footway, 224 
 cannot dedicate highway, except with consent, express or implied, of landlord, 
 
 223 
 laches of, in permitting easements to be acquired, 114, 115, 119, 120 
 from year to year, who underlets from year to year, may nevertheless distrain, 
 
 518 
 statutory provision as to emblements, 520„521 
 
 right of, to away-going crop operates as extension-of tenancy pco tanto, 523 
 may sue bailiff for refusing to receive rent and expenses after a distress, 542 
 may show, in defence to distress, that he has paid rent to mortgagee or ground 
 
 landlord, &o., 560 ^ ' 
 
 may resist illegal distress by force, or rescue goods till they are impounded, 522, 
 547 
 or resist abuse of distress, 540 
 when to be plaintiff in actions for injuries to land, 69, 70 
 at will only, or by mere possession, may maintain action against wrongdoer, 302, 
 
 ,303 
 may sue for nuisance to lands demised, 202, 203 
 may sue for injuries caused by fire to demised premises, 254, 257 
 not landlord, is the person to sue for trespass to land, 289 
 may sue landlord fof damage done to crops by cutting timber, &c,, 311 
 may sue for injury to trees. Causing loss of shade, fruit, &c., 313 
 may sue for olistructions to easements or profits a prendre, 145 
 may sue, or be sued, for the obstruction of light, 146, 147 
 for life, injunction against waste by, 259, 260, 261 
 injunction against, to prevent waste by digging minerals, altering premises, injurious 
 
 cultivation, &c., 258, 269, 260 
 for life. See Pbesokiption Act — Ebversioner, 
 
 p r p p 
 
117D INDEX. 
 
 TENANT IN COMMON. &cPabtneb. 
 
 wjien liable to Qo-te>i^fit for ipjj}yi,es to, or oiipter fyom, property held iji commcn, 
 
 930 
 liability of, to his co-tenant for d^^truejtion of tjie property held in common, 330, 331 
 
 or for destruction or alteration of boundary* wall held in compion, 28i5 
 
 or for misuse .of property held in common, 241 
 when may maintain trespass against his co-tenant or his licensee, 289 
 cannot license ^t^anger to conjinit );rBspass against co-tepan(;, 306 
 of deeds or chattels, who entitled to possession of, 451 
 cannot sue co-tenant for detention of goods, 459, 460 
 rights of survivor of one of two, 919 
 , possession of, effect of, under Statute of Lipaitatibns, 275 
 may distrain for their own share of rent, 524, 525 
 ayovry by, 559 
 should join in actions for injuries to land held in common, 70, 928 
 
 e. g. for trespass, 290 
 or for a nuisance, 205 
 devisee of deceased, should join co-tena!it ip actioif for ipjuripg tp Jai}4 lield in 
 
 common, §28 
 should join in actions for.conversioh of property, 864 
 injunction against, by co-tenant, to prevent ^vs^sje', 259, 26Q 
 
 TENANT-RIGHT, 
 
 effect of assignment pf, 99 
 
 TENDER. See Amends. 
 
 of amejids by constables |^d others acting in pursu^cp of ptatute, 593 
 of debt or charges extinguishes lien, 45Q, 451 ' 
 
 THAMES. See Conseevatobs. 
 
 THEATRE, 
 
 liability of leasee of, for the unlawful representation of dramatic pieces, 44, 45 
 .action of libel by manager of, 5 
 
 THEFT. &c Felony. 
 
 THREATS. See Menace?. 
 
 THRESHING MACHINE, 
 
 nuisances arising from, 171, n, 
 
 TIGER. See Animals — ^FebjE Natubb. 
 
 TIMBER. — See Custom — Estovebs — Pboeit a pbendee — ■^V'aste. 
 title to, •syjien severed from the freehold, 333, 3g2, 370 
 
 by tenant for life, &c., 264 
 proceeds of, when severed by the owner of a limited estate, to be invested for the 
 
 benefit of the inheritance, 333 
 cutting and sale of, by tenant for life, when lawful or not, 236, 237, 238 
 decaying, may be cut by order of Court of Chancery, unless ornamental or useful 
 for shelter of dwelling house, 236 
 
 and proceeds inyestpd tof benefif of inheritance, 236 
 cutting of, by one tenant in common, 241 
 right of rector to cut for repairs, &;c., 239 
 
 cutting of, by trustees "without 'impeachment of waste," or otherwise, when 
 _ lawful or not, 237 
 license to cut down, 83 
 
 grant of, implies license to go on land to out, 86, 87 
 injunction against cutting, although title in dispiite, 261 
 
 TIN. See Stannakies. 
 
 right to search for in Cornwall, 109 
 
 TIN-BOUNDERS. See Tin. 
 
 TITLE. See Title Deeds. 
 
 to realty, from twenty years' possession, 271 — 278 
 
 registration of, 271, n. 
 
 by custom. See Cdstom. 
 
 by prescription, 112, et seg. See Peesobiption. 
 
 to trust property, 360 
 
 to soU carried away, 367 
 
 to timber severed from the land, 333, 362 
 
mx)tx. II71 
 
 TITLE— coMitMucd. 
 
 evidence 'of, by proof of receipt of rent, &c., 985, 9SS 
 
 to chattels, evidence of — ^in actions of trespass" or oonversibii, 3^9 — 371 
 
 to personal securities, in whom vested, 460 
 
 to chattels, by joint tenants, or tenants in common, 451 
 
 to goods stolen, 361 
 
 to stolen goods by purchase, 338, 339 
 
 to chattels by finding, 333, 334, 343 
 
 to property for the conversion of which damages have been recovered, 360, 361. 
 
 by purchase from sheriff under an execution, 342, 343 
 
 not affected by reversal of judgment on which execution issued, 662 
 to goods in possession of children, 362 
 by bm of sale, 332, n., 342, 343, 353 
 to ships, 332, n. 
 
 to goods altered by wrongdoer, 332, 333 
 to birds and animals /ertB natura, 33'4, 335 
 to fish, when struck with harpoon, or caught in nets, 335, 336 
 to chattels by gift, 336 
 to servant's liveries, 336 
 to grants of arms, title deeds, leases, bonds, and other securities, 336, 337,.3'13, 
 
 460 " ■ " 
 
 to bills and notes, 327,. 3'28, 329, 337, 343 
 
 to letters, 337 ■ ■, n, 
 
 to chattels by purchase in market overt or by private contract, 337 — 340 
 of innocent purchasers from fraudulent vendors, 340, 341 
 by delivery order, dock warrant, bill of lading, &c., 341, 342 
 to property of bankrupts, 344, 345, 348, 349 
 
 under an execution, 347, 348 
 to property of which bankrupt was reputed owner, 349 — 358 
 warranty of, on sale of chattels, 858 
 may be tried in an action of trespass, 304, 305 
 question of, before county court judge, how far inqnirable into, 639 
 jurisdiction of county court in questions of, to land, &c., 949-— 952 
 false representation of, on sale of real proRerty or personal chattels, 84^,: »4i5, »*» 
 false assumption or representation of, is actionable, 864, 865 
 slander of, 808—810 
 
 TITLE DEEDS, . , . , , ,„„ 
 
 belong to the person in whom the legal title is vested, 460 
 right to possession of, where two persons equaUy entitled, 4ol 
 heir at law may sue for detention of, 454 
 right of owner, mortgagee, or tenant for life to, 336, 367 
 right of cestui que trust to, 337, n. 
 action of detinue for, 456 
 
 by devisee, 462 
 damages in actions for detention of, 463 
 
 TOLLS. See Maeket. 
 
 TOMBSTONES, 
 
 property in, 279, n. 
 
 taking up or defacing, is a tort, 7 
 
 in a private cemetery, 7, n. 
 
 TOKT. See Torts. 
 
 ^SSe^iT^^^^e property orri^^an.ther is, 7, 8. 9 
 • writing on the certificate or Ucense of another constitutes, 7 
 ltlZt^1t^^:^'^:u^^^'Lt^r'^ trade, o.c.p.tion, or means of liveli- 
 
 hood is, 10, 11 1 1 1 1 i 1 a 
 
 arising from breach of duty unposed by law 14-18 
 by refusing to obey decree of couri;pf justice, 27 
 malice not a necessary ingredient oi, Z7 
 
 nSioTar^i'on the contract or the tort 916, 917, 918 
 arisSig out of contract who can sue for, 17, 18 
 
 waiver of, 34 
 
1172 INDEX. 
 
 TOETS, 
 
 are in their nature several, 942 
 
 one defen^aut, therefore, may be aoquittod, and judgment given against ,the 
 other, 945, 946 
 
 TOWINa-PATH. &c Canal— KiVBK. 
 
 right of adjoining landowner to cross, for loading and imJoading vessels, 284, 285 
 
 TOWN CLBKK, 
 lien of, 446 
 
 TKADE. -See Fixtubes. 
 
 interference with, when a tort, 8, 10, 11, 12 , 
 
 by-laws made in restraint of, 38 
 
 offensive and noisome, when a nuisance, 163, 164 
 
 prescriptive right to exercise, 165 
 penalties for establishing noxious,- 48, 48, u. 
 
 TRADE MARK. See Injunction. 
 
 counterfeiting is actionable, by purchaser as well as by person whose, mark is , 
 
 imitated,, 865, 856, 869, 870 
 imitation of, is actionable, though no damage suffered, 8 
 
 but on application for injunction, evidence of damage is necessary, 8 
 no property, strictly speaking, exists in, but right of user may be obtained, and 
 
 that right protected from invasion by injunction, 874 — 878 
 may exist in the title of a periodical publication, 875, n. 
 
 or words and devices, 877 
 the property of partners, to whom it descends on death of one partner, 877 
 on wines, &c., produced in a particular place only, will pass, on sale of the place, 
 
 to the purchaser, 877 
 sale of, how far lawful, 8/7, 878 
 penalties for the use of counterfeit, 47, 48 
 
 TKADlE UNION. See Intimidation. 
 
 TKAINBR. See Hokses. 
 
 TRAMWAY, 
 
 on highway is indictable, 225 
 
 grant of, by parol, irrevocable if expense incurred, 156 
 
 TRANSFERS., See Shakes. 
 
 TRANSPORTS. See Ships. 
 
 TREASURY. See Commissioners of Treasuuy — Public OrFicEBS. 
 
 TREES. See Estovers — Timber. 
 title to, is in landlord, 285 
 
 if standing in boundary fence, 285 
 
 if on waste land adjoining highway, set out under Enclosure Act, 309 
 
 if growing on banks or towing-paths of navigable river, title to, 303 
 lessee cannot cut, except for repairs, 233, 235 - 
 
 effect of grant of, by tenant in fee, 98 
 
 right to cut and carry away, cannot be claimed under Prescription Act, 118 
 overhanging branches of, may be cut by adjoining proprietor, 285 
 overhanging railways, 285, n. 
 
 overhanging highway, or private property, may be cut, 196 
 overhanging highway, are a public nuisance, 218 
 tenant and landlord may both sue for injuries to, 290 
 
 and so may lord and copyholder, 290 
 injunction against, injury to, from offensive trades, 215 
 
 TRESPASS. See Arrest— Assault — Defendant — Plaintiff- Trespasser. 
 malice not a necessary ingredient of, 27 
 
 by agent in name of principal, and subsequently ratified by him, 934, 935 
 to person or personalty ; 
 
 by letting loose a dangerous animal, 2 
 
 by keeping a person in confinement, though not the original confiner, 936 
 
 by throwing a squib into a crowd, which is tossed from one to another, 415 
 
 by carrymg away goods, driving away, or striking cattle, &c., 318, 319, 320 
 
 by dogs in pursuit of cattle, game, &c., 319 
 
 by abusing or destroying a chattel found, 320, 325 
 
 by conversion of chattels, 320, ei seq. . , -j y c^ 
 
 £,0-1. 
 
 }h^ 
 
INDEX. 
 
 11V3 
 
 TK ESPASS — contiimed. 
 
 for distraining cattle contrary to agreement, 525 
 
 in seizing estrays or wrecks, 370 
 
 under void or irregular process, 671, 672 
 
 by sheriff. See Shekipf. 
 
 merger of, in felony, 31, 32 
 
 declaration for, 366 
 
 plea of not guilty, 367 
 
 justification of, on ground that goods were on defendant's land, 369 
 
 in defence of oneself, one's property, or one's rights, e.g., a right of access 
 to one's own house, 319 
 to realty ; 
 
 what constitutes, 263, 264, 265 
 
 after notice, 264 
 
 if- committed to escape danger, or to retake animals or chattels on land of 
 
 another, 264 
 by throwing rubbish, or water, building wall, &c.,,265, 270 
 by cattle, or other domestic animals, or birds, 265, 266 
 
 in charge of servants, or -v/iie, 265, 266 
 
 straying from common, or highway, 266, 267 
 
 from want of, or defective fences, 266, 267 
 by rabbits, pigeons, or dogs, 267, 268 
 if surface and subsoil belong to separate persons, 268 
 when may be repelled by force, or house erected pulled down, 268, 269 
 none, if person entering be the lawful owner, 269 
 if a highwaj', 269, 270 
 
 if continuing, right of action accrues de die in diem, 270 
 by locking door of plaintiff's room, and keeping him out, 301 . 
 by lessee of herbage, or-purohaser of crops, 302 
 on towing-paths of navigable river, 303 
 antecedent to plaintiff's possession of land, 304 
 by person lawfully entitled, after entry, 304, 305 
 by landlord after expiration of tenancy, 304, 305 
 leave and hcense, 306, 307 
 
 by entering house under a license, otherwise than by the door, 306, 310 
 by tenant in common against stranger, licensee of co-tenant, 306 
 to remove or retake goods, papers, &c., 306, 307, 309, 310 
 to replace goods on plaintiff's land or to remove therefrom goods, papers, &c., 
 
 of defendant, 309, 310 
 by riding over another's land, 7 
 
 by picking up game which falls on the land of another, 7 
 . from fall of chimney, or flow of filth from laud or house of the defendant to 
 
 or on land of the plaintiff, 206 
 against wrongdoer, constructive, or mere possession, is sufficient, 302 303 
 
 304 
 title may be tried in action for, 271, 304, 305. See Title. 
 action of, may be brought, either against person trespassing, or person by whose 
 authority the trespass was committed, 290 
 
 and against aU or any one of persons trespassing, 291 
 parties to actions for, 289, 290, 291 
 
 reversioner, 146 
 declaration and venue in actions for, 291, 292 
 pleas in, 292^297 
 pleas of justification in actions of, 601 
 
 by right of way, &c„ 307—310 
 
 if trespass continuing, 601, 602 
 replications, 297 — 301 
 new assignjnent, 974, 975 
 evidence for plaintiff, 301 — 305 
 
 for defendant, 305—310 
 damages recoverable in actions of, 31.0 — 314 
 
 where trespass is by several, 608 
 costs for, if wilful and malicious, 1017 — 1019 
 costs in actions of, afternotice, 1018, 1019 ' 
 for mesne profits, 314, 315. 
 injunction against, 315^317 
 
 TRESPASSEB, 
 
 injuries to, not generally actionable, 169, 170, 171, 190, 213 
 when may sue for injuries sustained while tresp'assing, 172 
 
1 I 7-i INDEX. 
 
 TIIIAL. See Evideuce. 
 
 proceedings at, plaintiff to begin, &c., 975, 976 
 
 TEOVEB. ,See Conversion. 
 
 TRUSTEE. See Oo'nveesion — Cestui que Tbust — Pakties to Actions— Tkusieb 
 
 IN Bankeuptot. 
 liabilities of, 360 
 
 for fraud of solicitor employed by hiin, S5i, 855 
 cutting of timbeif by, 237 
 
 duty of, to pretent commissive but not permissive waste, 237, 238 
 must sue for injuries to land; 70 
 is entitled to his expenses out of the trust fund, 743 
 new appointment of, if the'trustee becomes bankrupt, 358, n. 
 
 TKUSTEE IN BANKEUPTCY. See Bankedpt— Liquidation. 
 liability of, as assignee of lease, 941 
 
 may bring or defend actions for injuries to the property of bankrupt, 926, 927, 
 928 
 
 but not to his person, 927 > 
 
 if more than one, should all join in actions for injuries to property of bankrupt, 
 
 928, 929 
 evidence of appointment of, 926 
 
 character need not be proved unless it is specially denied, 371 
 security for costs from, 1026 
 
 TRUSTEES. See CommissioSees. 
 
 TUEBAEY. See Bin of Peace— Tuef. 
 common of, 106 
 
 TUEF. See Tuebaky. 
 
 right to ciit, or wood, is a pi-ofit 6, prend/re,- 80 
 
 claim to dig and carry away, from another's land. When valid, 81 
 
 TURNPIKE EOAD. See Hiohway— Statutobt CompensatioS. 
 title to soil of, 282, 283 
 , repair of ditches or watercourses by the side of, 162, 228,- 229 
 cattle straying on, 226, n. ' 
 
 UNDERWOOD. ;See Tebes; 
 
 UNITY OF OWNERSHIP. See Common— Light— WatAu— AY ay. 
 
 what sort of, is essential to the extinguishment of easements, 140 — 142 
 
 UNSOUNDNESS. See Hoeses. 
 
 VAGRANT. See Aeeest. 
 
 VALUER. See Suevetoe. 
 
 VARIANCE. &» Amendment. 
 
 none, if right claimed includes the right proved, 152 
 
 VENDOE. See False Eepeesentation. 
 
 of goods, warrants that he has right to sell them, and is liable if he has not, 848 
 
 VENUE. ./Scc'Declaeation. 
 
 in actions for injuries to land, 71 
 for trespass to land, 291 
 
 for obstructions to easements or profits & prencl/re, 147, 148 
 against justices, constables, churchwardens, overseers, &c., 597 
 
 VERDICT. See Watee. 
 
 VESSEL. See Ship. 
 
 VESTEY CLERK, - 
 
 has not a freehold offioe,^lp61, 1063 
 mandamus to admit, 
 
INDEX. 1175 
 
 VICAE. See Incumbent — Reotok. 
 right to name of, 279, n. 
 has no right to fees for vaults or tablets in chancel, 279 
 
 VICE-CHANCELLOR, 
 
 of University not li^rble for a wrongful imprisonment, 636 
 is a judge of Court of Eecord, 641 
 
 VIEW, 
 
 interference with, not actionable, 3 
 
 VILLxVGE GREEN. Se'e Easement— Eeokeation. 
 VISITOR. Sen Guest. 
 
 VOTE. ^Tfe Parliament. 
 VOT^**&/poiZ 
 
 WAIVER. See Notice to Quit. 
 of tort, 34 
 
 WALL. See Boundary Wall — Fences — Party Wall. 
 pulling down, is waste, 231 
 
 building, across a way, or obstructing light, is actionable by the reversioner, 146, 
 149 .... 
 
 declaration in actiqn for non-repair of, 148 
 
 WAREHOUSE. See Support. 
 
 injuries to persons entering on business, 189 
 
 ■WAREHOUSEMAN. See Wharfinger. 
 
 not bound to receive petroleum, nitro-glycerinp, or other " specially dangerous " 
 
 goods, 466 
 is entitled to authority from owner before parting with goods in his keeping to a 
 
 third person, 453, 454 
 lien of, 441, 442, 448, 449 
 
 WARRANT, 
 
 how proved, 675, 676 
 
 WARRAN'TY. See False Eepreseutation — Horses. 
 damages in actions for breach of, 994, 995 ' 
 
 . WASTE. See Common — Highway — Injunction — Recreation. 
 what it is, different kinds of, and who liable for, 230^247 
 pulling down houses, or neglect to repair, 230, 231 — 234 
 commissive or permissive, 231 — 233 
 fire, 247—252. See Fire. 
 alteration of premises, or cultivation, though value thereby increased, 266, 257. 
 
 See Tenant. 
 removal of fixtures, 241 — 246. See Fixtures. 
 in trees or woods, what is, 235 
 sale of timber by tenant for life, 236 
 taming deer, 236 
 
 equitable, by committal of wanton and malicious destruction, 23?, 237 
 license to commit, 247 
 
 right of entry to inspect by reversioner, 247, 258 
 
 .wSful, npt semble affected by Ecclesiastical Dilapidations Act, 1871, 239 
 by tenant for life, 230, 231, 235, 236, 237, 238 
 by tenant in fee, with executory Revise over, 236; 237 
 by tenant for years, 230, 231—234 
 
 by non-repair of sea-wall, 232 
 
 by alterations iu demised premises, 232, 233 
 although covenant to repair exists, 233 
 
 in respect of brick earth and minerals, 233 
 
 in respect of woods, underwood, streams, or ponds, fences, pigeons, game, &c., 
 233, 234, 235 
 
 by removing glass, wainscot, &c., 234 
 by tenant from year to year, or at will, 231, 232, 234, 235 
 tenant from year to year, or at will, not liable for permissive, 231, 234 
 by copyholders, when a forfeiture, 240, 241 
 
1176 iNrtex. 
 
 WASTE— con(m«crf. 
 
 by tenants in common, 241 
 
 on proper^ held in common, 918, 919 
 by trustees, " without impeaelnnent of waste," 237 
 
 duty of trustees to prevent commissive, but not permissive, 237, 238 
 by rector, dean, &o. See EoolesiastioAl Dilapidations, 
 by executors, 941 
 
 by feme coverte, executrix, or administratrix, 937 
 committed by strangers on land demised, 246 _ 
 action for, 253 
 
 how aifected by insurance, 253 
 
 parties to, 253, 254 
 
 declarations, 72, 254, 255 
 
 pleas, 255 
 
 evidence, 255, 256 
 , damages; 256 — 258 
 
 judgment, 256, 257 
 injunction to prevent, 253, 258 — 262 
 
 damages in equity fo?, if already committed, 261 
 
 acquiescence in, effect of, or of delay in coming to the Court of Chs,ncery, ?61, 
 262 
 
 parties to suits in equity to prevent, 262 
 
 prohibition against, 253 
 
 WATER. See Canal Company — Mill — Mine — Riparian Pijoprietoe— Eivek— 
 
 Watercouksb — Well. , 
 
 natural right to the use of flowing, 58, 59, 60, 63, 64, 65 
 right to use of, as figainst wrongjdoer, by a person who is. not a ripjirian proprie- 
 
 ,tor, 67 ^.ck^T^t--^— ^ Sti^i^ ^ri4 'P'-'Tf-h.^X^ fy-''-^^ ^/ 
 right to use, claimable by custom, 101 
 
 under Prescription Act, 116, 118 ' 
 
 right to surface, 59, 65 
 
 right to underground, and springs of, beneath surface, 67, 68, 748 
 right to artificial, 64 ^ 
 
 riglit of navigation and canal companies to, 69 
 
 right -to, flowing through drain, conduit, or watercourse, on land of another, 
 • 82, 85 
 claim to diversion of, 116, n. 
 
 for purposes of iirigation or drainage, 64, 65 
 diversion or abstraction of running, whether actionable, if the plaintiff does not use 
 
 it, or is not himself injured, 8, 74, 75 
 diversion of, from mUl, is actionable by reversioner, 146 
 diversion of, from mill, is a nuisance, 162 
 effect of acquiescence in the unlawful diversion of, 65, 66 
 effect of fine on, or verdict against, the unlawful diverter of, 66 
 right to vary the channel of, 64 
 right to pen back, 66 
 
 by prescription, 121 
 right to discharge of, from eaves of house, 80 
 
 disohai'ge of, from eaves of adjoining house, is actionable by reversioner, 203 
 grant of right of, 96 
 reservation of, on demise, 84 
 
 enjoyment of right of, over lands vested in tenant for life, or for a long term, 132 
 right to, may be destroyed by permission given to divert it, if expense has been 
 
 incurred in such diversion, 134, 135 
 right of, extinguished by unity of possession, 1 40 
 right to, when not extinguished by unity of ownership, 141, 142 
 interruption in the enjoyment of, 129 
 
 forfeiture of limited right to, if right attempted to be extended, 138 
 abandonment of right to, by acts indicative of intention, but not by mere non-user, 
 
 138, 142 
 right to, not destroyed by, the destruction of house or mill to which the right 
 
 belongs, if house or mill rebuilt, 142, 143 
 collection of surface, &c. , when actionable, 59 
 injuries arising from the artificial collection of, 68, 69 
 injuries to lower stories of house from bursting or leakage of cisterns on upper 
 
 floor, 69 . 
 
 discharge of, on another's land, is a trespass, 265 
 injuries from the escape of, 18 
 fouling rf, may be an injuiy to the reversion, 208 
 contamination of, by refuse from gas works, 200 
 
INDEX. ii>jfj 
 
 WATEU—continued. 
 
 light to use or pollute by grant or prescription, 66, 67 
 right to foul, in derogation of a grant, 96 
 obstruction of, by throwing in cinders, &c., whether legal, 209 
 fouling of, IS a nuisance, 162, 166, 167 
 
 and actionable without special damage, 74 
 passage of dirty, may be stopped, if right to passage of clean water only exists, 
 
 declaration for obstructing flow of water through a drain &o 149 
 
 for injury from wrongful diversion, obstruction, or pollution of, 71, 72 74 75 
 for poUution of, 207 > i^, i^, it, ij 
 
 by reversioner, 208 
 
 effect of plea of not guilty in actions for fouling, 209 
 
 plea of prescriptive right to foul, 209 
 
 plea of prescriptive right to divert, 73, 74 
 
 injunction against disturbance of right of, thougji granted by parol, 156 
 to prevent the diversion of, 77 j r , 
 
 to prevent pollution of, 215 
 
 WATEE COMPANY, 
 
 duty of, to keep pipes duly charged with water, 40 
 
 to keep fire-plugs, &c., in proper order, 767 
 not liable for bursting of pipes through frost, 419 
 power to take water under Waterworks Clauses Act, 746 
 
 WATEECOUESE. See Dbain— ■Watee. 
 naturalNjUght to use of, 121 
 rights acquired by prescription to use of, 116, 121 
 artificial, right to, e. </., mine-adits, drains, &c., 122, 123 
 grant of right of, 96 /ry-i-< lU^ -^^^ (^ </ 
 
 right to stop up, if used for other purposes than those granted, 162, 163 
 prescriptive right to pollute, 122 
 repair of, in aiieno solo, 88, 121, 143, 162 
 
 injunction to prevent obstructions to repair of, on another man!s land, 77, 78 
 • along turnpike road, repair of, 228, 229 
 obstruction of, is a nuisance, 166, 167 
 right to obstruct, if doing damage, 209, 210 
 removal of obstiTictions to, on another's land, 198 
 
 stoppage of, on another's land to prevent injury by flood, &c., to one's own, 1D8_ 
 when a nuisance, new sewer to be provided, 194 ' 
 
 WAY. See Highway — Tdenpike Eoad— Statctoey CoMraMSAiioN. 
 private or accommodation, title to soil of, 283 
 right of, arising from long user, 114 
 right of, under Prescription Act, 113, 116, 118 
 
 what enjoyment of, sufficient to give right under Prescription Act, 120 
 proof of right of, by user, express grant, &c., 152 
 reasonable exercise of right of, is a question for the jury, 152 
 user of, by stealth, or by license, or without knowledge o£ landlord over land let 
 
 on lease,' does not confer right, 299, 300 
 right of, over lands vested in tenant for life or for a long teim, 132 
 dedication of, by tenant for a long term, 120 
 right of, must be appurtenant to land, 97 ^ /^r-^^^ /S^ 2_ 
 ri|ht of, by permission, 97^ /^^^^ ^ '^/ ^V^ 
 assignment of right of, 97 ^ 
 
 transfer of right of, 97 
 for carriages, includes a footpath, 307, 308 
 right of, 5 appurtenant to premises is available for landlord as well as tenant, 
 
 right of, to go in one direction, or one place, is not available for another, 308, 
 
 deviations from, are a trespass, unless the way is public, 308 
 
 right of, by license, when revocable, 81, 82 
 
 <rf necessity, will pass on sale or demise of house, 86 , n ~ 
 
 of necessity, pass, or are reserved bylaw, without any express words of conveyance 
 
 of necessity, ceases when necessity for it ceases, and revives when necessity 
 
 revives, 138 _ i_- -ijn t^i 
 
 of necessity is not destroyed by unity, of ownership, 140, 141 
 right of, not lost by mere non-user, 133, 134 ^ 
 
 abandonment of, 187 
 
 G GGG 
 
1178 INDEX. 
 
 WAY— continued. . , , <„» ,00 
 
 abandonment of right of, not to h4 inferred from mere non-uaer, 137, lis 
 user of new, substituted, is an exerciae of the right over the old, 137 
 right of private, not extinguished by dedication to public, 138 
 forfeiture of right of, by non-performatoe of conditions, e.g., repairs annexed to 
 
 the grant, 138 , . , , . , 
 
 right of, when extinguished by unity of owemership, and how re-oreatea or 
 
 revived, 140—142 
 repair of, in alienb solo, 88, 143 
 obligation to repair ratione tenurce, 1^3 _ 
 grantor of private, may be bound to repair, 207, 208 
 repair of, by Highway Board in return for its public use, 228 
 injuries from the dangerous state of, 170 _ 
 
 obstruction of private, by gates, when actionable, 153 j r , . 
 
 obstruction to, whether public or private, is actionable whether enjoyed as a right 
 
 or by permission, 145, 146 . - . j ii, 
 
 obstruction^ of, is actionable, both against tenant a&d-%tranger, who caused the 
 
 obstruction, 147 
 obstruction of, is actionable without special damage, 155 
 obstruction of, is actionable by reversioner, 155 
 obstruction to right of, may be abated, 144 
 obstruction of, is indictable by any one, including reversioner, 146 
 declaration for obstructing, 148, 149 
 
 for non-repair of, 148 
 injunction against disturbance of right of, though granted by parol, 1 56 
 right of public, not ascertainable by a bill of peace, 160 
 
 WEIR. See Fishert — River. 
 
 WELL. &e Pump— Water. , , 
 
 right to take water from, belonging to another, 80 
 
 right- to use, by permission, wiU not pass on sale of house, 86 
 
 abstraction of water from, by an adjoining owner digging a deeper one, is not 
 
 actionable, 748 . . . ' 
 
 right of support to, from owner of adjoining land, 61 
 obligation to fence, 168 
 penalty for fouling water in, 201 
 
 WHARF. See Dock— Sba-W ails. 
 
 liability for existence of, if an obstruction to a navigable river, 175, 176 
 whether an indictable obstruction to navigable river, 226 
 
 WHARFINGER, 
 
 negligence of, in care of article warehoused, 432, 433, 434 
 
 lien of, 4-42, 448, 449 
 
 may sell goods to satisfy his charges upon them, 450 
 
 WIFE. See Childben — Coveetcre— Married Woman — Settlement. 
 
 liability of, for torts after death, or transportation of husband, or in case of divorce, 
 
 judicial separation, or protecting order, 937 
 communications to, may be evidence of husband's knowledge, 212 
 conversion of property by, 365, 366 
 not liable for false representation that she was single, 34 
 not liable for false representation that signature of biU of exchange was her 
 
 husband's, 34 
 cannot authorise distress, 937 
 
 cannot sue for deprivation of her husband's society by slander, 34 
 when to be joined with her husband in actions of tort, and when not, 920 — 922, 
 
 923 
 when ohoses in action of, vest in trustees in bankruptcy of husband, 929 
 persuading of, to live apart from her husband, is actionable, 9 
 inducing, to separate from her husband, or harbouring her after she hafi separated, 
 is actionable, 905, 906 
 
 damages recoverable, 915 
 seduction of, while living with her parents is actionable, 910 
 right of access to children, and to custody of, up to seven in certain oases, 897, 
 
 898 
 right of, to protection order, when deserted by her husband, and its effect on her 
 property, her right to sue, and liability to be sued, 879 — 881 
 
 desertion, what amounts to, 881 
 
INDEX. 1179 
 
 WW1&— continued. 
 
 right of, to restitution of conjugal rights, 881, 882 
 to alimony, pendente lite, 882 
 
 to judicial separation on ground of adultery, cruelty, or desertion, 882 
 cruelty, what amounts to, 882 — 884 
 desertion, what amounts to, 884, 885 
 status of, after a judicial separation, 885 
 right of, to alimony after a judicial separation, 885, 886 
 when entitled to dissolution of marriage, 886 — 887 
 connivance, or condonation of adultery, 889, 890 
 competency of, to give evidence in cases of adultery, 898, 899 
 right of, to alimony after divorce, 890 
 
 settled property of, may be ordered by Divorce Oourt to be paid to husband or 
 children, 890, 891 
 
 WILD 'FpWh.^' See Decot-Pond. 
 
 WIND. See XiVL—-^iLt. 
 
 WINI)MILL, 
 
 right to wind coming to, 118, 119 
 illegality of, adjoining highway, 171 
 illegality of, adjoining turnpike road, 171, a. 
 
 WINDOW. feAiK— Light— Waste. 
 right to enlarge, 127, 128 
 effect of alteration in, upon right to light, 136, 137 
 
 WINE, 
 
 mixing of, with water, is a conversion, 322 
 
 WITNESS, 
 
 not liable for false statements in the course of a judicial proceeding, 34 
 depositions of, disabled by permanent illness, are admissible, 988 
 privileged from airest, 659 
 
 WORKMAN. See Master — Servant. 
 
 liability of, for negligence in performance of work, 402 
 
 -injuries to, from dangerous or defective machinery, ladders, &c,, 187, 188 
 
 if duty of fencing machinery, &c., be imposed by statute, 188 
 lien of, 438—440, 442 
 
 WOUKSHOP. &« Noise. 
 
 WOOD. See Estovbes— Tour. 
 
 WRECK. See Ship. 
 
 WRIT, 
 
 how proved, 675 
 
 THE END. 
 
 LONDON : 
 
 STEVENS AND KICHABDSON, PMNTEES, 5, GBEAT QUEEN STREET, 
 
 LINCOLN'S INN FIELDS, W.C.