djorttpll ICam i>rl|nnl ICtbrary Cornell University Library KF 1250.A73 1876a ¥.2 A treatise on the law of torts / 3 1924 019 300 072 Cornell University Library The original of tiiis bool< is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924019300072 A TREATISE ON THE LAW OF TORTS BY C. G. ADDISON Author of " A Treatise on the Law of Contracts" REPRINTED FROM THE LAST LONDON EDITION WITH FULL AMERICAN NOTES BY H. G. WOOD Author of " A Treatise on the Law of Nuisances * VOL. II JEBSET city; FRED. D. LINN & COMPANY, PUBLISHEBS. 1881, Entered, according to act of Congress, in the year 1875. Uy James Cockcroft & Company, la the o£Sce of tha Librarian of Congress, at We(shinstoB. CONTENTS. CHAPTER XII. OF ASSAULT AND BATTERY, AND WRONGFUL IMPRISONMENT. Section I. — Of assault and battery, and mayhem. 787. What constitutes an assault. 788. Assaults resulting from acts of negligence. 789. Assaults by constable — Hand- cuffing unconvicted prisoners. 79.0. Assault and battery. 791. Mayhem and wounding. 792. Assault and battery in self-de- fense. 793. Assault in defense of the posses- sion of a house, or close, or of property. 794. Assault in resistance of a forcible entry, or to prevent a seizure of chattels. 795. Resistance of a forcible entry by a landlord. 796. Assaults in preservation of the public peace. 797. Battery and wounding in self- defense, or in defense of the possession of tenements or chattels. Section II. — Of false imprisonment. 798. Definition of false imprisonment. 799. Constructive imprisonment. 800. Imprisonment by order of a judge or judicial officer. 8or. Arrest in execution of warrants of justices. 802. Arrest by constables without warrant. 803. Arrest by private persons with- out warrant. 804. Arrest for" a.misderaeanor. 805. Arrest of the wrong party. 806. Arrest for malicious injuries to property. 807. Willful and malicious trespass. 808. Arrest of persons committing in- dictable offenses in the night. 809. Arrest for an assault and breach of the peace. 810. Arrest during the continuance of the affray. 811. What amounts to a breach of the peace. 812. Arrest of persons disturbing di- vine service. 813. Arrest of vagrants and persons found committing acts of pub- lic indecency. 814. Arrest under the merchant ship. ping act. 815. Arrest of principal by his bail. 816. Arrest for offenses committed within the limits of the metro- politan police district. 817. Arrest by servants of railway companies. 818. Detention of recruits and desert- ers. 819. Imprisonment of dangerous luna- tics. I Section III. — Of actions for an assault and battery, atid faf false imprisonment. IV CONTENTS. 820. Statutory protection to constables and their assistants from vexa- tious actions. 821. Protective clauses in favor of parties acting in the execution of acts of parliament. 822. Limitation of actions and notice of action. 823. Notice of action to persons act- ing in execution of the larceny act. 824. Notice of action to persons act- ing in execution of the metro- politan police act. 825. Persons entitled to the benefit of the protection. 826. Length of notice of action. 827. Statement of the cause of action. 828. Tender of amends. 829. Payment of money into court. 830. Parties to be made plaintiffs — Master and servant. 831. Of the parties to be made de- fendants. , 832. Liability of a corporation to an action for an assault. 833. Subsequent ratification of wrong- ful imprisonment rendering the ratifying party responsible for the wrong. 834. Declarations for an assault and false imprisonment. 835. What may be given in evi dence under the plea of not guilty. 836. Not guilty by statute. 837. Pleas setting forth a previous hearing and dismissal by magistrates. 838. Pleas of justification. 839. Defense of neighbors and friends. 840. Moderate correction by parents, schoolmasters, masters of ships, &c. 841. Pleas of justification of imprison. ment. 842. Evidence at the trial. Proof of an assault. 843. Prciof of an arrest and imprison- ment. 844. Evidence for the defense. 845. Damages recoverable. Damages where there are several co-trespassers. Prospective damages. Special damages in actions for false imprisonment. 849. Evidence in mitigation of dam- ages. 846. 847. 848. CHAPTER XIII. OF MALICIOUS CONSPIRACY, MALICIOUS PROSECUTION, AND ARREST — MA- LICIOUS ABUSE OF LEGAL PROCESS. Section I. — Of malicious conspiracy, malicious prosecution and arrest — Malicious abuse of legal process. 850.- Malicious conspiracy. 851. Malicious exhibition of articles of the peace against another. 852. Malicious prosecution. '853. What is evidence of a want of reasonable and of probable cause, and of malice. 854. Prosecution by persons who manifest a consciousness of the innocence of the accused. 855. Prosecutions under the advice of counsel. 856. Malicious complaints before magistrates — Maliciously caus- ing a justice's warrant to be issued against the plaintiff. 857. Continuance by defendant of pro- ceedings commenced without his knowledge. 858. Effect of the complaint or in- formation before the magistrate being followed up by a con- viction of the plaintiflF. 859. Maliciously causing a search warrant to issue. 85o. Malicious indictment. 861. Malicious prosecution by court martial. CONTENTS. 862. Malicious assertion of a legal right. 863. Malicious and unfounded actions. 864. Maliciously putting the process of the law in motion in the name of a pauper or insolvent. 865. Maliciously issuing execution for a larger sum than is due upon judgment. 866. Maliciously causing an extent to issue. 867. Malicious proceedings in bank- ruptcy. 868. Malicious abuse of legal process. 869. Malicious detention of judgment debtors after tender of the debt and costs. 870. Malicious arrest. 871. What amounts to a malicious arrest — Proof of actual custody. Section II. — Of actions for malicious arrest afid malicious prosecution. 872. Parties to be made defendants. 873. Pendency of a rule for a criminal information against the defend- ant. 874. Declarations for a malicious pros- ecution. 875. Of the plea of not guilty in ac- tions for a malicious arrest and malicious prosecution. 876. Pleas of justification. 877. Evidence at the trial — Proof on the part of the plaintiff^Ma- licious arrest or prosecution. 878. Proof of malicious informations and complaints before magis- trates. 879. Proof of certified copy of the record of the prosecution and acquittal. 880. Proof of malice and of want of reasonable and probable cause. 881 Proof on the part of the defend- ant. 882 Of the damages recoverable in actions for a malicious prose- cution. CHAPTER XIV. OF TRESPASS IN EXECUTION OF VOID OR IRREGULAR PROCESS — RESPONSI- BILITY OF JUDGES AND MINIS- TERIAL OFFICERS OF JUS- TICE, AND PERSONS SETTING THEM IN MOTION. Section I. — Of trespass in execution of void 0} irregular pro- cess — Responsibility of judges and ministerial ojjicers of courts of justice, and persons set- ting them in motion. 883. Exemption of judges from actions in respect of things done in the exercise of their judicial functions. 884. Conditions precedent to the ex- istence of jurisdiction on the part of a judge. 885. Disqualification of judges on ac- count of interest. 886. Exemption of judges from ac- tions where they have a.primd facie jurisdiction, and no ob- jection is taken to their juris- diction. 887. Orders of commitment by county court judges. 888. Commitments for contempt. 889. Statutory forms of commitment by county court judges. 890. Who are judges and judicial officers. 891. Delegation of judicial functions. 892. Removal of the proceedings of inferior courts for revision by a superior tribunal. 893. Proceedings against county court judges to compel them to act in particular cases. 894. Proceedings of courts-martial. Section II. — Of the duties and respon- sibilities of ministerial officers of courts oj justice. 895. Illegal assumption of the jud' CONTENTS. cial office by ministerial of- ficers. 896. Neglect of duty by ministerial officers of courts of justice. 897. Duties and responsibilities of the sheriff and his officers — Execu- tion of writs. 898. Priority of writs of execution. 899. Trespasses by the sheriff and his officers. 900. Execution of writs by special bailiffs. 901. Trespasses in dwelling-houses by sheriff's and their officers under color of the execution of legal process. 902. Of the breaking open the outer door of it dwelling-house in the execution of legal process. 903. What amounts to a breaking of the outer door. 904. Of the breaking open of inner doors in the execution of a writ. 905. Illegality of an arrest or seizure of goods effected through the medium of an act of trespass. 906. When the sheriff becomes a trespasser by remaining on premises an unreasonable time. 907. Seizure of the goods of the wrong person. 908. Seizure by sheriffs and their officers of privileged or pro- tected goods. 909. Power of the sheriff to compel rival claimants to interplead and establish their title. 910. Claims of landlords on sheriffs for rent in arrear. 911. Sale by sheriff^ of goods taken in execution. 912. Capture of the wrong person. 913. Arrest of the right person under a wrong name. 914. Illegal arrest on Sundays. 915. Incurability of a wrongful im- prisonment — Arrest under one of several writs. pt6. Arrest of privileged persons. 917. Countermand of writs and war. rants. 918. Liability of the sheriff for an escape. 919. Recapture upon fresh pursuit. 940. Discharge of debtors taken in execution. 921. Arrest of the person and seizure of goods under void or irregu- lar process. 922. Exemption of sheriffs and others from responsibility when the injury has been brought about by the misrepres»ntation of the plaintiff. 923. False returns to writs of execu- tion. 924. Extortion by sheriffs and their officers. 925. Duties and responsibilities of the high bailiff, bailiffs, and regis- trars, of the county court. 926. Liability of ministerial officers where the court has no juris- diction and no authority to issue process. 927. Duty of bailiffs of the county court to satisfy the landlord's claim for rent. 928. Liabilities of jailers. 929. Liability of the messenger of the Court of Bankruptcy. Section III. — Of actions against judges, sheriffs, and ministerial officers, and their assist- ants, and parties setting them in motion. 93b. Actions against county court judges — Notice of action. 931. Remedies against sheriffs and officers for an escape. 932. Actions to recover money . in the hands of the sheriff'. 933. Actions against high bailiffs of county courts and their assist- ants. 934. Statutory protection to high bailiffs, and persons acting by their order, or in their aid, ia the execution of county court warrants. CONTENTS. Vll 93b- Of ^^ staying of proceedings in actions against high bailiffs and officers of the county court. 93G. Plaintiffs in actions against slieriffs. 937. Of the defendants in actions for wrongs done under color of legal process. 938. Declaration against a sheriff for not executing the Queen's writ, or for an escape. 939. Declarations against sheriffs for removing goods taken in exe- cution without paying rent due to the landlord. 940. Declarations against sheriffs for treble damages for extortion. 941. The plea of not guilty. 942. Pleas of justification. 943. Justification in the execution of legal process. 944. Replications. 945. Evidence at the trial — Proof on tlie part of the plaintiff. 946. Proof of judgments, writs, and pro- cess from the superior courts, 947. Delivery of the writ to the sheriff, to be executed. 948. Proof of the sheriff's having di- rected or authorized the com- I'lission of the wrongful act. 949. Proof of false return to a writ. 950. When admissions by an under- sheriff and bailiffs are evidence against the sheriff'. 951. Proof of the removal of goods taken in execution without paying the landlord's rent. 952. Evidence of the process under which the sheriff acted. 953. Evidence for the defense — Proof of rent being in arrear at the time of the levy. 954. Proof of proceedings in the county court. 955. Damages recoverable in actions against sheriffs and officers — Negligence and breach of duty. 956. Assessment of damages in ac- tions for an escape. 957. Special damages. 958. Exemplaiy damages. 959. Recovery of treble damages for extortion. CHAPTER XV. OF TRESPASSES AND INJURIES COMMITTED IN EXECUTION OF WARRANTS AND ORDERS OF JUSTICES — RESPONSIBIL- ITY OF MAGISTRATES, CONSTABLES, THEIR ASSISTANTS, AND PERSONS SETTING THEM IN MOTION — REME- DIES FOR WRONGS DONE UNDER COLOR OF CONVICTIONS AND WAR- EANTS OF JUSTICES. Section I. — Of trespasses and injuries committed in the execu- tion of warrants and orders of justices, 960. Of the jurisdiction of justices of the peace. 961. Jurisdiction of justices residing or being out of the county of which they are justices. 962. Jurisdiction of borough justices under the municipal corpora- tion act. 963. The power of summary convic- tion of offenders by justices without the intervention of a jury. 964. Liability of justices for miscon- duct in the exercise of their judicial functions. 965. Of the granting of search-war- rants by magistrates. 966. Liability of justices for acts dene by them without jurisdiction or in excess of their jurisdic- tion. 967. Exemption of justices from ac- tions in cases where they had z. prima facie jurisdiction, and no objection was taken to their jurisdiction until after they had adjudicated. 968. Wrongful proceedings by justices viu CONTENTS. interested in the matter before them. 969. Wrongful commitment and im- prisonment by justices. 970. Acts of a justice of the peace who has not duly qualified. 971. Of the form of commitment. 972. Commitment by justices of ac- cused persons for trial — Ex- amination of the witnesses. 973. Effect of the depositions being taken in the absence of the magistrate who acts upon them. 974. Convictions by magistrates on their own view. 975. Summary convictions founded upon informations. 976. Statutory provisions respecting summary convictions and or- ders of justices. 977. Requisites of the information or complaint. 978. Of the time within which the in- formation or complaint must be laid. 979 Proceedings upon information or complaint. 4S0. Tj nla wful proceedings of justices when there is no information or complaint before them. 981. When u. complaint once made can not be settled and with- drawn. 982. Convictions by justices in excess of their jurisdiction. 983. Ouster of the jurisdiction of justices by setting up a claim of title. 984. To what extent a justice of the peace is protected in the exer- cise of a discretionary power. 985. Wrongful ministerial acts by magistrates. 986. Convictions upon by-laws. 987. Of the drawing-up of convic- tions and orders. 988. Disclosure of the authority and jurisdiction of justices on the face of their proceedings. 989. Description of the offense or sub- ject-matter of complaint. 992. 993- 994. 995- 996. 997- 998. 999. 990. Of singling out the offender. 991. Description of the locality of the offense. Orders and adjudications by jus- tices. Statutory forms of convictions and orders. Immateriality of mere surplus- age. Effect of the conviction. Warrants of distress and commit- ment. Exemption of justices from ac- tions in respect of warrants of distress for poor-rate. Warrants of distress and com- mitment in case of non-pay- ment of costs by an informer or complainant. Service of a copy of the minute of the order before the issue of a warrant of commitment or distress. 1000. The power of appeal to the court of quarter sessions against summary convictions and or- ders of justices, looi. Excess of jurisdiction may be made a ground of appeal. 1002. Of the execution of convictions and orders after notice of appeal. Exemption of justices from lia- bility where a defective con- viction or order has been confirmed upon appeal. Statement of u, case to the superior courts by way o! appeal from decisions of justices. 1005. Of the quashing of convictions and orders — Removal of orders and convictions by certiorari. 1006. Decisions which are final, and can not be reviewed by cer- tiorari or mandamus. Commitment for contempt. When the writ of certiorari ia not taken away by express statutory prohibition. 1003. 1004. 1007. 1008. CONTENTS. IX 1009. Proof by affidavit of the facts 1022. and circumstances calling for the interference of the su- perior court. 1023. 1010. Amendment of orders or judg- ments of justices on return to a certiorari. 1024. ion. Of testing the legality of a com- mitment by writ of habeas corpus. 1025. 1012. Proceedings against justices to compel them to act in par- 1026. ticular cases. 1013. Right of county justices to or- 1027. der the expense of county litigation to be defrayed out 1028. of the county funds. 1029. 1014. Of the power of justices to give costs. Section II. — Exemption of constables IO30. and their assistants from liability when acting in the execution of war- rants and orders of 1031. magistrates. Exemption of constables, offi- cers, and their assistants-from liability for acts done by 1032. them in obedience to war- rants of justices. Excess of authority on the part IO33. of constables and officers — Handcuffingunconvictedpris- 1034. oners. Abuse of a search-warrant. Section III. — Remedies for wrongs 1035. done under color of convictions and wat~ rants of justices. 1018. Replevin of chattels distrained under warrant of justices. 1036. Of actions against justices. When the action is brought in respect of things done with- 1037. out jurisdiction, or in excess of jurisdiction. When the action is brought for 1038. a malicious conviction, com- mitment or distress, or a mali- cious abuse by a magistrate of the functions of his office. 1039. 1315. 1016. 1017. 1019. 1020. Effect of the existence of A power of appeal on the right to bring an action. Objections by justices to actions against them in the county court. Of setting aside certain actions brought against justices of the peace. Limitation of actions against justices of the peace. Of notice of action against justices. Statement of the cause of action on the face of the notice. Tender of amends before action. Of the computation of the month's notice, and of the time for tendering amends. Of the statutory protection to constables, officers, and their assistants from vexatious ac- tions. Parties to be made defendants — Wrongful convictions and orders by one justice acted upon by another justice. Liability of persons who set justices and constables in motion. Evidence at the trial of actions against justices. Proof of malice and of the want of reasonable and probabl* cause. Evidence at the trial of actions against constables and officers — Proof of the injury having been done in execution of a warrant of justices. Proof of warrant of justices- Secondary evidence of the contents of a warrant. Proof by the plaintiff of his de- mand of the perusal and copy of the warrant. Proof by the defendant of the production of the warrant — Production and perusal of a copy of the warrant. Damages recoverable in ae> CONTENTS. tions against justices of the peace. CHAPTER XVI. OF INJURIES FROM THE" EXERCISE OF STATUTORY POWERS — STATUTORY COMPENSATIONS FOR INJURIES AUTHORIZED BY STATUTE. Section I. Of injuries from the exer- cise of statutory powers. 1040. Exemption of persons from personal liability in respect of things done under statutory authority. 1041. Injuries from the negligent exe- cution of statutory powers. 1042. Nuisances from the negligent working of railways. 1043. Duties and responsibilities of boards of public works, trustees and commissioners — Contractors and workmen acting in the exercise of sta- tutory powers. Surveyors of highways and county bridges. Effect of clauses in particular statutes exonerating persons from all personal liability in respect of things done in the bona fide execution of the statute. Right of commissioners, trustees and public officers to indem- nify themselves in respect to the costs and expenses they incur out of the public funds they are authorized to admin- ister. 1047. When expenses incurred through blunders or negligence may be charged upon a public or trust fund. 1048 Creation of nuisances in the bona fide exercise of statutory powers. 1049. Pollution of streams and inju- 1044. 1045. IQ46. ries to docks, wharfs, towing- paths, &c., in the exercise of statutory powers. 1050. Creation of nuisances in the ex- »ercise of the statutory powers contained in the Towns Im- provement Clauses Act. 105 1. The Metropolis Local Manage- ment Act. ■1052. Of the power to take lands and streams for public purposes. 1053. Licenses to enter upon land authorized to be taken fr>r public works. 1054. Seizure and detention of goods by custom-house officers act- ing in the execution of statu- tory powers. Section II. — Of statutory remedies for the recovery of compensa- tion for injuries author- ized by statute. 1055. Injuries establishing a right to statutory compensation. 1056. Of ascertaining the amount of statutory damage by arbitra- tion. 1057. Jurisdiction of the arbitrator. 1058. Damages recoverable before justices of the peace and not by action. 1059. Of the statutory remedy for the recovery of compensation under the provisions of the Lands Clauses and Railway Clauses Consolidation Acts. 1060. Of statutory compensation to tenants and occupiers of lands taken for public works. 1061. Notices by claimants of the nature and extent of the in- jury sustained, and of the amount of compensation re. quired. 1062. Assessment of damages. 1063. Future damages. 1064. Assessment of damages to which the claimant is not legally en titled — Removal of the in quisition by certiorari. 1065. Recovery of the amount oi CONTENTS. XI compensation assessed by a jury. 1066. Declaration in actions for rail- way compensations. 1067. Pleadings — Defenses — Traverse of the injury to the land. 1068. Remedy for subsequent unfore- seen damages. lo5g. Remedy in cases of severance. 1070. Compulsory purchase of house by railway company. Section III. — Remedies by action and by injunction in re- spect of injuries from the negligent doing of things authorized to be done by statute. 1071. Limitation of actions in respect of things done under local and personal statutes. 1072. Accrual of the cause of action and commencement of the period of litigation. 1073. Of notice of action. 1074. Notice of action to gas com- panies and trading corpora- tions and their officers. 1075. Notice of action to toll and tax collectors and revenue offi- cers. 1076. Notice of action against con- tractors, &c., under local boards of health. 1077. Notice of action against sur- veyors and persons acting in execution of the highway acts. 1078. Tender of amends before action. 1079. Parties to be made defendants. 1080. Pleadings — Plea of not guilty. 108 1. Plea of tender of amends be- fore action. 10S2. Pleas of justification under the authority of an act of parlia- ment. T083. Evidence at the trial — Proof of notice of action. 1084. Power of the court of chancery to grant an injunction to prevent unnecessary injury /rom the execution of statu- tory powers. 1085. Injunction to restrain nuisances created by public bodies act- ing in the exercise of stat utory powers. 1086. Injunction to prevent misuse bjr companies and public bodies of land acquired by them un- der statutory authority. CHAPTER XVII. OF LIBEL AND SLANDER. Section I. — Of libel and written slander. 1087. Of the distinction between slander by word of mouth and slander in a published writing. 1088. Oral slander rendered action- able by being printed and published — Exemption of the author, and liability of the publisher. lo8g. What wrifings are libellous and actionable. 1090. Of malice. logl. Privileged writings and com- munications. 1092. Defamatory writings in courts of justice. 1093. Defamatory petitions to the Queen, to Parliament, or to ministers or officers of state respecting the conduct of magistrates and officers. 1094. Criminatoi-y communications by public officers acting in dis- charge of a public duty. 1095. Criminatory pastoral letters, and printed communications from clergymen to their parishioners, 1096. Defamatory letters respecting clergymen. 1097. Privileged confidential com- munications between rela- tions respecting the charactei of a person proposing mar riage. xu CONTENTS. 1098. Privileged confidential com- 1117. nuinications between friends to prevent an injury. 1099. Privileged communications hjr H18. persons liaving a pecuniary interest involved in the mat- ter of the communica- 1119. tion. 1100. Reckless and inconsiderate communications. 1101. Disclosures made bona fide in 1 120. the course of an investigation set on foot by the plaintiff himself. 1102. Communications between sub- 1121. scribers to charities. 1 103. Privileged communications re- specting the character of 1 1 22. servants. 1 104. Comments in excess of the pri- vilege. 1123. 1 105. Of the effect of addressing privileged communications to a wrong party by mis- 1 124. take. IZ06. Reports of trials containing 1125. defamatory matter. II07 Publications of ex parte state- ments and of proceedings preliminaiy to a trial. 1126. 1 108. Publication of speeches and proceedings in Parliament. 1 109 Defamatory reports of proceed- ings at public meetings, 1127. vestiy meetings, &c. 1110. Reviews and criticisms in public I128. papers. 1111. Criticisms by one public journal- ist upon another. 1112. Criticisms upon handbills and advertisements. 1129. 1113. Criticisms upon sermons and clergymen. 1114. Comments upon the public cha- 1130. racter of public men. 1115. Disparaging criticism by one I131. tradesman upon the goods of a rival tradesman. II32. Section II. — Of verbal slandre. 1116. When defamatory vfords are actionable. ii33- Defamatory words not action- able without special dam* age. Defamatory words actionabia per se without proof of any special damage. In what cases actionable vrords are rendered not actionable by precedent or subsequent words. Defamatory words imputing to the plaintiff that he is af- flicted with a contagious disorder. Defamatory words concerning tradesmen and professional men. Words imputing misconduct, 01 gross ignorance or inca. pacity, to professional men. Words imputing official mis. conduct to a person in an office of profit or trust. Words rendered actionable by reason of special damage. Slanderous denunciations from the pulpit causing loss of custom, situation, or employ- ment. Effect of a dismissal of a slan- dered servant, being a wrong- ful dismissal on the part of the master. Effect of the slander being dis« believed by the master. Special damage not being the immediate and natural con- sequence of the words spoken — Unauthorized repetition of verbal slander. Special damage directly result- ing from the repetition of oral slander. Circumstances rebutting the presumption of malic. Privileged communications- Proof of malice. Privileged charges of felony made bona fide, with reason- able grounds for suspicion. Privileged statements and com* CONTENTS. xui inents by advocates in the 1154. course of judicial proceed- ings, or in the conduct of a cause. 1134. Defamatory statements by a party in open court conduct- II55- ing his own cause. TI35. Privileged comments and charges by judges and ma- 1156. gistrates in the exercise of the duties of their office. II57. 1136. Of the interpretation and ap- 1158. plication of the words used. II59. 1137. Slander of title. 1160. Section III. — Of actions for libel and slander. 1138. Consolidation of actions for the 1161. same slander. 1 139. Parties to be made plaintiffs. 1140. Parties to be made defendants. 1 141. Declarations for libel and slan- der. 1162. 1 142. Of the innuendo or defamatory sense attributed to the writing or words on the face I163. of the declaration. 1143. Sta.tement of special damage in I164. actions for verbal slander. 1 144. What may be given in evidence 1165. under the plea of not guilty. 1145. Plea that the libel was inserted 1166. without malice or gross neg- 1167. ligence, and that an apology was published — Payment of 1 168. money into court. 1146. Pleas of justification. Ii6g. 1147. Evidence for the plaintiff — — Printed placards — Proof of 1170. publication. 1148. Publication in newspapers. 1171. 1149. Proprietorship of newspapers containing libels. I172. 1150. Proof of the utterance of the words charged in actions for 1173. verbal slander. 1151. Proof of the singing of libel- lous songs. 1152. Application of the libel to the plaintiff. 1 1 53. Proof of the defamatory sense of the words used. Admissibility of evidence o( surrounding circumstances to explain and point the libel-^ Interpretation of the words used. Proof of subsequent libels to explain and point the libel charged in the declaration. Proof of successive libels to show malice. Evidence of malice. Proof of injury to the plaintiff. Evidence of special damage. Proof of the trade, or profes- sio,ii, or official character of the plaintiff. Proof that the words were spoken concerning a trades- man or professional man in the way of his trade or pro- fession. Evidence on the part of the defendant — Traverse of ma- terial allegations. Proof of the truth of the charge or accusation. The damages recoverable in ac- tions for defamation. Evidence in aggravation of damages. Mitigation of damages. Proof of libels by the plaintiff on the defendant. Evidence of offers of apology in mitigation of damages. Of the judge's direction to thn jury. Setting aside verdict — Arres'" of judgment. Indictments for libel and slan der. When the truth of the matter may be given in evidence. Evidence for the defense. XIV CONTENTS. 1 1 74. 1175- 1176. II77-— 1178. CHAPTER XVIII. OF FRAUDULENT MISREPRESENTATION, AND DECEIT, FRAUDULENT CON- CEALMENT, BREACH OF WAR- RANTY, AND FALSE PRE- TENSES. Section I. — Of fraudulent misrepresen- tation and deceit ; fraud- ulent concealment and breach of warranty. Of willful deceit. Unintentional deception. False representations under pretense of a claim of right — False claim of lien. •Representations by a person of his knowledge of a particular fact, when he knows that he has no knowledge at all about it. Statements and representations which must be authenticated by a signed writing — False re- presentations concerning the conduct, credit, ability, trade, or dealings of third persons. 1179. Representations concerning the character, credit, trade, or dealings of co-partnerships and joint-stock companies — Authentication thereof by a signed writing. 1180. Misrepresentation by directors and officers of public com- panies — Publication of de- ceitful prospectuses and re- ports. 1181. Fraudulent breach of war- ranty. 1182. Warranties made pending a ne- gotiation for the sale of prop- erty. 1183. Private representations, made prior to a sale by auction forming no part of the pub- lic contract of sale. 1184. False representations amounting to a warranty by a person of his knowledge of a particular fact, where the means of knowledge lie peculiarly or exclusively within hij reach. 11 8 5. Representations concerning mat- ters which are obvious to ordinary intelligence, and which lie as much within the knowledge of one party as the other. 1186. Representations amounting merely to expressions of opinion and belief. 1187. Statements in answer to in- quiries — Information to sher- iffs and public officers. 1188. Warranties by vendors on sales of real property. Il8g. False representations of title by vendors of corporeal and in. corporeal hereditaments-— Representations not amount- ing to a warranty. 1 190. Representation of title on sales of chattels .imounting to a warranty. 1191. False representations by manu- facturers of the character and quality of the articles they manufacture and sell. 1192. Representations by a vendor who is told that the purchaser wants the article he proposes to buy for a particular purpose. 1193. False representations by vendors made to absent purchasers amounting to a warranty. 1194. False representations by vendors where the purchaser has means of examination and ' judgment — Sale of goods by sample. 1195. False representations by rail- way companies amounting to a warranty. 1 196. False representation of authority — Pretended agency — De- ceit by agents. 1 197. When a principal is responsibla for the fraud of his agent. CONTENTS. XV 1203. 1204. 1198. False assumption of authority, as between master and servant, employer and employed. XI99. Counterfeiting trade-marks — Fraudulent use by one per- son of the trade-mark of an- other with intent to deceive. ISOO. Warranty of the genuineness of articles with trade-marks. 1201. Warranty of description as to quantity or country. 1202. Fraudulent assumption of the name of a bank. Deceit by provision-dealers in selling unwholesome food. False and fraudulent representa- tions by married women and infants. 1205. Fraudulent concealment. 1206. Fraudulent concealment of the dangerous nature of articles delivered to a bailee to be warehoused or carried. 1207. Fraudulent sales with all faults. Section II. — Of actions for fraud and deceit, and the remedy by in- junction. Actions for deceit — Parties to be made plaintiffs. Parties to be made defendants — Principal and agent. 1210. Joint-stock companies. 1211. Of declarations for deceit. 1212. Declarations for a breach of warranty on the sale of a horse. 1213. Declaration by an agent against a principal for a false repre- sentation. Declarations for fraudulently inducing an architect. Of the plea of not guilty. Proof of fraudulent misrepre- sentation and deceit. 1217. Proof of the representation having been made to the plaintiff. Proof that the plaintiff relied upon the representation, and not upon his own examina- tion and judgment. 1219. 1220. 1208. 1209. 1214. 1215. I2l6. 1218. 1223. 1224. 1225. 1226. 1227. 1228. 1229. 1230. 1231. 1232. Proof of warranties. Proof of the terms and condi- tions of warranty by proof ol public notices stuck up in an auction-room or repository where the thing warranted was sold. Evidence of the breach of war- ranty of a horse — What con- stitutes unsoundness. Proof of manifest defects not covered by the warranty. Proof of vice. Proof of the use of counterfeit trade-marks. Remedies in equity for a false representation. Of the damages recoverable in actions for fraudulent mis- representation and deceit. Special damages — Breach of warranty. Special damages — False as» sumption of agency. Prevention of fraud by indict- ment. Indictments for obtaining, or endeavoring to obtain, money or goods by false pretenses. Injunction to prevent fraud. Injunction to prevent the fraudu- lent use of trade-marks, names, &c. CHAPTER XIX. OF MATRIMONIAL AND PARENTAL IN- JURIES, ADULTERY, AND SEDUCTION. Section I. — Of the infringement tf matrimonial and parent^ rights. 1233. Rights of wives deserted by their husbands. 1234. Right of action of married women after they have ob- tained an order for protection 1235. What amounts to desertion. XVI CONTENTS. 1236. Of the restitution of conjugal rights. 1237. Of judicial separation on the ground of adultery, cruelty, or desertion. 1238. What amounts to cruelty. 1239. Revival of condoned cruelty. 1240. What amounts to desertion without cause. 1241. Rights of married women after a decree for a judicial separa- tion. 1242. Alimony in cases of judicial separation. 1243. Of adultery and the dissolution of the marriage contract. 1244. Adultery and desertion on the part of the husband. 1245. Willful neglect or misconduct on the part of the husband conducing to adulteiy on the part of the wife. J246. Connivance or toleration Of adultery. 1247. Connivance on the part of the wife. 1248. Condonation of adultery. 1249. Alimony in cases of dissolution of marriage. 1250. Orders for the settlement of property for the benefit of the innocent party and children. 125 1. Power of the divorce court over marriage-settlements. 1252. Orders respecting the custody of children. 1253. Of the common law right of fathers to the custody of their infant children. 1254. Right of guardians for nurture to the custody of infant children. 1255. Inability of courts of common law to interfere with the right of the father to the custody of his children. 1256. Of the controlling power of the court of chancery over the father's right to the custody of his infant children. 1257. Jurisdiction of the court of 1261. 1262. chancery over the custody ol the children of British sub' jects born nlnoad. 1258. Jurisdiction of the court of chancery overlhe children of foreigners in this ciiimtry. 1259. Right of access of m^jjicrs to their infant children and to the custody of children under seven years or age. 1260. Of the right of the mother to the custody of her children on the death or transportation of the father. Of the obligation of parents to provide for their children. Evidence on the hearing of petitions — Competency of the husband and wife to give evidence. 1263. Trial of questions of fact before a jury. 1264. Petitions for damages from adulterers. 1265. Evidence at the trial of a claim for damages for adultery — Proof of the marriage. 1266. Proof of marriage by certified extracts from parochial reg- isters of marriages. 1267. Proof of marriage through the medium of examined copies and certified extracts from non-parochial registers. Of the damages recoverable in cases of adultery. 1269. Evidence of the defendant's cir- cumstances or property. 1270. Application of the damages re- covered — Payment of costs. Section II. — Of seduction. I'i'jx. — Of the harboring of married women and inducing them to live apart from their hus- bands. Of the seduction and loss of service of servants. Of injuries to parents in being deprived of the services of their children through the tortious act of another. 1268. 1272. 1273. CONTENTS. XVII 1174. Of injuries to parents from the seduction of their daughters. ia/5. Eftect of the absence of the daughter from the parent's roof at the time of the seduc- tion. 1276. Pretended hiring of girls for purposes of seduction. 1277. Seduction of married daugh- ters. 1278. Effect of proof that the defend- ant, though he seduced the girl, was not the father of the child of which she was de- livered. 1279. Effect of the seduction and loss of service having been oc- casioned by the plaintiff's own misconduct and neglect of his parental duties. 1280. Of the parties entitled to main- tain an action for seduction. 123 :. Of the pleadings in actions for seduction. 1282. Evidence at the trial in actions for seduction — Proof of the relationship of master and servant. 1283. Of the damages recoverable in actions for seauction. 12S4. Evidence in aggravation ol damages — Proof that the de- fendant made his advances to the daughter under the guise of matrimony. 1285 Evidence in mitigation of damages. 1286. Damages recoverable in actions for inducing or persuading wives, servants, or workmen, to abandon their duties or neglect the fulfillment of a contract. 1287 Indictment for the abduction of unmarriea girls. CHAPTER XX. OF ACTIONS EX DELICTO — PARIIB THERETO — NON-JOINDER AND MIS- JOINDER OF PARTIES. Sbction I. — Of actions er delicto ana the parties to be made plain- tiffs in such action. 1288. Parties to be made plaintiffs in actions of tort founded on contract. 1289. Of the remedies which tenants in common and joint tenants have against each other. 1290. Rights of the survivor of two joint tenants or tenants in * common. I2QI. Trustee and cestui que trust. 1292. Bailees of goods. 1293. Master and servant 1294. Husband and wife. 1295. Actions by married women after a judicial separation, or an order for protection. 1296. Infants. 1297. Heir-at-law, devisee, and per- sonal representatives. 1298. Administrators. 1299. Trustees of bankrupts. 1300. Transfer of rights and liabilities ex delicto to trustees of bankrupts. 1301. Right of the trustees to the bank- rupt's wife's choses in action. 1302. Of the number of the plaintiffs in actions ex delicto — Joint and separate rights of action. Section II. — Of actions ex delicto a^d the parties to be made defend- ants in such actions 1303. Tenants in common. 1304. Corporations. 1305. When a joint-stock company is re- sponsible for the tortious acts of the directors and managers. 1306. Trustees and commissioners oi public works. 1307. Military and naval officers. 1308. Master and servant. 1309. Principal and agent. Tl.— ?? xvm CONTENTS. 1316. 1317- 1318. 1319- 1310. Subsequent ratification and adoption of a wrongful act by parties for whose use and benefit the act was done. 1311. What amounts to evidence of ratification of a wrongful act. 1312. Servants and agents, 1313. Husband and wife. 13 14. Infants. 1315. Executors and administrators. Wrongs committed by a de- ceased person within six months before death. Actions against the executor of a prebendary, vicar, or in- cumbent of a benefice. Liabilities of executors and ad- ministrators for their own wrongful acts. Trustees in bankruptcy. 1320. Of the continued liability of a banlcrupt to actions ex de- licto and to arrest. 1321. Of the number of the defendants in actions ex delicto — Par- ties jointly and severally lia- ble. Section III. — Uf non-joinder and mis-joinder of parties — Amendment before and at the trial. 1322. Amendment of non-joinder and mis-joinder before trial. 1323. Amendment at the trial. 1324. Amendment after notice or plea in abatement of non-joinder of parties. 1325. Mis-joinder of defendants. 1326. The eftect of marriage, death, and bankruptcy upon the proceedings in an action. CHAPTER XXI. OF ACTIONS EX DELICTO, PLEADINGS, DEFENSES. AND EVIDENCE. Suction I. — Of pleadings, defenses, and evidence in actions ex delicto. 1327. Of actions in the county court. 1328. The general jurisdiction of the county court.' 1329. Copyright of design. 1330. Friendly societies. 1331. Ouster of jurisdiction of county court in cases where the title to land, &c., is in question. 1332. Recovery of possession of small tenements in the county court. 1333. Equitable jurisdiction. 1334. Admiralty jurisdiction. 1335- Jurisdiction by consent. 1336. Waiver of objection to jurisdic- tion. 1337. Of actions in the superior courts — :Joinder of different causes of action in the same suit. 1338. Requisites of the declaration. 1339. Statement of special damage. 1340. Several counts in declaration in respect of the same cause of action. 1341. Pleas. 1342. Pleas to the jurisdiction — Privi- leges of ambassadors. 1343- Plea of not guilty. 1344. Not guilty by statute. 1345. Of pleadi«g several matters of defense. 1346. Traverses by the defendant. 1347. Traverses by the plaintiff". 1348. Requisites of special pleas. 1349. Fictitious and needless aver- ments in pleading. < 1350. Defenses arising after the com- mencement of the action. 1351. Payment of money into court by way of compensation or amends. 1352. Plea of infancy in actions ex de- licto. 1353. Plea of accord and satisfaction. 1354- Plea of the pendency of another action for the same wrong. 1355. Plea of judgment recovered. 1356. Continuing injuries — Judgment recovered. 1357. Effect of the recovery of judg. ment in actions for the con- version of property. CONTENTS. XIX 1358. Recovery of judgment in rem. 1359. Plea of the bankruptcy of the plaintiff. 1360. Pleas of the statute of limita- tions. 1361. Commencement of the period of limitation. 1362. Extension of the period of lim- itation in certain cases. 1363. Equitable pleas and defenses. 1364. Joinder of issue. 1365. Pleadings construed distribu- tively 1366. New assignments. Section II — Proceedings aud evidence at the trial. 1367. Right to begin. 1368. Proof on the part of the plain- tiff. 1369. Effect of payment of money into court. 1370. Primary and secondary evidence. 1371. Notice to produce a, written document to let in secondary evidence of its contents. 1372. Proof of facts resting on hearsay I and reputation. 1373. Entries of deceased persons against their interest. 1374. Entries made by deceased per- sons in the exercise of their duties. 1375. Statements and declarations ac- companying an act. 1376. When the adverse party in a suit is estopped from giving evidence to contradict his own statements and representa- tions to the plaintiff. 1377. Evidence of manorial customs. 1378. Evidence of title and seizin. 1379. Amendment of variances be- tween the declaration of the cause of action and the proof adduced in support of it. 1380 Admissions of liability. 1381 . Illness of witness. CHAPTER XXII. OF THE DAMAGES AND COSTS RECOV- ERABLE IN ACTIONS EX DELICTO. Section I. — Of damages recoveralle in actions ex delicto. 1382. Of the assessment of damages in actions ex delicto. 1383. Damages recoverable in par- ticular aclions. 1384. Special and extraordinary dam- ages. 1385. Damages too remote, and not naturally resulting from the wrong done. 1386. Damages in actions of tort founded on contract. 1387. Expense of obtaining legal ad- vice. 1388. Costs of previous legal proceed- ings. 1389. Recovery of damages which the plaintiff has become liable to pay through the default of the deft.idant. 1390. Medical expenses- — Physician's fees. 1391. Prospective damages. 1392. Exemplary and vindictive dam- ages. 1393. Evidence in mitigation of dam- ages. 1394. Joint-trespasses — Recovery of damages from one of several co-trespassers. 1395. Damages when the plaintiff has insured against loss, or has received full indemnity under a contract of insurance. 1396. Double and treble damages. 1397. New trial on the ground of ex- , cessive and outrageous dam- ages. 139S. New trial on account of the smallness of the damages. 1399. Arrest of judgment where the plaintiff has a verdict fot greater damages than he is legally entitled to. XX CONTENTS. 1400, Section 1401. 1402. 1403. 1404. 1405. 140b. 1407. 1408. 1409. 1410. 1411. 1412. 1413. 1414. »4I5- 1416. 1417. 1418. 1419. 1420. Inquisition of damages before 1421. the sheriff. II. — Of the recovery of costs in actions ex delicto. Award of costs to a successful plaintiff in tJie superior courts. 1422. Costs to a successful defendant. Costs on pleas setting up mat- ters of defense wiiich have arisen since the last pleading. Costs on a stay of proceedings. 1423. Costs on arrest of judgment, or judgment non obstante vere- 1424. dicto. Where the court has no juris- diction it has no power to 1425. give costs. 1426. Effect on costs of withdrawing a 1427. juror. Costs in actions of slander and libel. When the certificate of a judge 1428. or presiding ofiScer is neces- sary to enable the plaintiff to recover costs. 1429. Certificate that the action was brought to try a right. 1430. Within what time the certifi- 1431. cate must be granted. County Court Acts depriving 1432. the plaintiff of costs in the superior courts. 1433. When the foundation of the ac- tion is a contract. When money has been paid 1434. into court. The certificate that it appeared to the judge that there was sufficient reason for bringing 1435. the action in the superior 1436. court. 1437. Costs on references. 1438. Costs of reference. Certificate for full costs in ac- tions for willful and malicious 1439. grievances. 1440. Full costs in actions for willful and malicious trespass, or after notice not to trespass. Costs in the superior courts in actions against justices. In actions against constables and officers, and parties act- ing or intending to act in the execution of statutory powers. Certificate for costs in actions for things done in supposed pursuance of the Act for the protection of property from malicious injuries. Costs in actions against execu- tors. Costs in actions for duties and penalties at the suit of the Crown. In actions upon judgments. Costs on new trials. In cases of appeals from the decision of a county-court judge, or judge of an inferior tribunal. In the case of an appeal from a superior court to the Court of Exchequer Chamber. Costs on removal of actions by writ of certiorari. In cases of prohibition. On indictments for libel and slander. Costs of writs of mandamus and injunction. On an application for an in- junction under the Railway and Canal Traffic Act. Repeal of divers statutes en- abling plaintiffs in certain actions to recover double costs. Costs in compensation cases. Taxation of costs. Costs of particular issues. Where costs are to be taxed by the court in which the action is brought. Security for costs. Award of costs in the county court. CONTENTS. xxl CHAPTER XXIII. or DAMAGES IN CHANCERY, AND THE REMEDY BY INJUNCTION, PROHIBI- TION, AND CERTIORARI. Section I. — Of damages in chancery and the remedy by injunc- tion. 1441. Award of damages in the court of chancery. 1442. The writ of injunction issuing out of chancery. 1443. Injunction to restrain a public company from exceeding its statutory powers. 1444. Injunction to restrain disturb- ance of grave-yards, and ob- structions to rights of burial. 1445. Injunction to restrain the in- fringement of patent-rights and copyright. ' 1446. Injunction to restrain the sale or detention of chattels. 1447. Effect of laches and delay in applying for an injunction. 1448. Acquiescence precluding a plaintiff from relief. 1449. Of the statutory obligation upon the court of chancery to de- cide all questions of law and fact on the determination of which the title to relief in equity depends. 1450. Of the remedy by injunction at common law. 1451. Injunction at common law to restrain infringements of patent-right and copyright. 1452. Injunctions and orders to stay proceedings. Section II. — Of the remedy by prohibi- tion for the prevention of judicial wrongs. 1453. The writ of prohibition. 1454. Prohibition before judgment. 1455. Prohibition after judgment and execution. 1456. Prohibition where appeal lies. 1457. Prohibition to the ecclesiastical courts. 1458. Notwithstanding an appeal en- tered. 1459. The writ of prohibition to re- strain a county court judge. 1460. Prohibition to the Lord Mayor's court. 1461. Proceedings in prohibition. 1462. The application for a prohibi- tion. 1463. ■The rule or summons to show cause why a writ of prohibi- tion should not issue to a county court. 1464. Notice of the issue of the writ. 1465. Refusal of writ, when final. 1466. Of the setting aside writs of prohibition issuing out of chanceiy. Section \\\.—0f the remedy by certiorari, 1467. The writ of certiorari. 1468. Where the inferior Court has jurisdiction. 1469. Where the inferior court has no jurisdiction. 1470. Limitation of time for issuing the writ. 1471. Grounds for the issue of the writ. 1472. Certiorari to remove causes from the county court. 1473. Of the concurrent remedy by appeal and by certiorari— County court appeals. 1474. The application for the writ. 1475. Affidavits, when necessary. 1476. Notice of the issue of the writ. 1477. The effect of the issue of the writ. 1478. The effect of the refusal of a writ of certiorari. 1479. Proceedings after removal. 1480. Quashing of the writ — Pro- cedendo. CHAPTER XXIV. OF THE REMEDY BY MANDAMUS. Section I. — Of the remedy by mandamus far the vindicatien of rights, and the enforce' XXll CONTENTS. ment of the performance of public duties. 74S1. The prerogative writ of manda- mus. 1500. 1482. Mandamus to enforce statutory, corporate, and public duties 1501. and obligations. 1483. Mandamus to judges, magistrates, 1502. and judicial officers, com- manding them to h%ar and 1503. adjudicate. 1484. Mandamus to ministerial officers. 1485. Mandamus to overseers or 1504. clergymen to bury the dead body of a pauper, 1505. i486. Of the granting of the vifrit 1506. where there is another remedy. ' 1507. 1487. Mandamus to compel the sur- 1508. render of public documents. 1509. 1488. A mandamus to restore a public officer to a freehold office from which he has been 1510. wrongfully dismissed. 1489. How a freehold office may be forfeited and vacated. 1490. Offices held at will. 1511. 149: Visitatorial power excluding the proceeding by mandamus. 1512. 1492. Mandamus to restore the name of a medical practitioner to 1513. the Medical Register. 1493. Mandamus to test the validity 1514. of an election. 1494. Mandamus to elect corporate 1515. and public officers. 1516. 1495. Mandamus to enforce an ap- pointment to a public or 1517. corporate office. 1496. Mandamus to chartered com- 1518. panies and corporations. 1497. Mandamus to make calls. 1498. Mandamus to local boards. Section commissioners, trustees, and public officers to levy rates and satisfy and discharge a 1 5 19. judgment-debt, or a pecuniary obligation. 1499. Mandamus to railway companies, corporate bodies, and local 1520. boards to make compensation for lands taken, or injuriei inflicted upon private per- sons. Mandamus to boards of health to make compensation. Effects of laches or delay in ap- plying for the writ. The proceedings upon a manda- mus. Proceedings by mandamus in respect of corporate offices in boroughs. Conditions precedent to the issue of the writ. Requisites of the writ. Parties to whom the writ is to be directed Service of the writ. Return to the writ. The return to a mandamus to restore a dismissed public officer to his office. Return setting up inability or impossibility of performance — Expiration of statutory power. Pleas to the return — Traverse of material allegations. Statutory protection to certain public officers. Time for taking objections to the writ. Review of proceedings in mandamus by writ of error. Damages and costs. Judgment non obstante vere- dicto. Action or information for a false return. Attachment for disobedience of peremptory writ of manda- mus. II. — Of the claim to a writ of mandamus in an action at common law. Of tbe union of an action in re- spect of a private injury with an application for a manda- mus. Actions in which a claim for a mandamus may be sustained. CONTENTS. xxiiL 1521. Actions in which a claim for a 1523. The pleadings in the action. mandamus can not be sus- 1524. Orders for the rectification tained. ^ of the register of «tire- 1522. Declaration in an action for a holders in joint-stock com- mandamus. panies. THE LAW OF TORTS. CHAPTER XII. OF ASSAULT AND BATTERY, AND WRONGFUL IMPRISONMENT. Section I. — Of assault and battery, and 802. mayhem. 787. What constitutes ar. assault. 803. 788. Assaults resulting from acts of negligence. 804. 789. Assaults by constable — Hand- 805. cuffing unconvicted pjisoners. 806. 790. Assault and battery. 791. Mayhem and wounding. 807. 792. Assault and battery in sfflf-de- 808. fense. 793. Assault in defense of the posses- 8og. sion of a house, or close, or of property. 810. 794. Assault in resistance of a forcible entry, or to prevent a seizure 811. of chattels. 795. Resistance of a forcible entry by 812. a landlord. 796. Assaults in preservation of the 813. public peace. 797. Battery and vifounding in self- defense, or in defense of the 814. possession of tenements or chattels. 815. Section II. — Of false imprisonment. 816. 798. Definition of false imprisonment. 799. Constructive imprisonment. 800. Imprisonment by order of a 817. judge or judicial officer. Sox. Arrest in execution of warrants 818. of justices. 11.— I Arrest by constables without warrant. Arrest by private persons with- out warrant. Arrest for a misdemeanor. Arrest of the wrong party. Arrest for malicious injuries M property. Willful and malicious trespass. Arrest of persons committing in- dictable offenses in the night. Arrest for an assault and breach of the peace. Arrest during the continuance of the' affray. What amounts to a breach of the peace. Arrest of persons disturbing di- vine service. Arrest of vagrants and persons found committing acts of pub- lic indecency. Arrest under the merchant ship, ping act. Arrest of principal by his bail. Arrest for offenses' committed within the limits of the metro- politan police district. Arrest by servants of railway companies. Detention of recruits and desert- ers. 2 THE LAW OF TORTS. [Ch. XII. 819. Imprisonment of dangerous luna- tics. Section III. — Of actions for an assault 834. and battery, and for fulse imprisonment. 835, 820. Statutory protection to constables and their assistants from vexa- tious actions. 836. 821. Protective clauses in favor of 837. parties acting in the execution of acts of parliament. 822 Limitation of actions and notice 838. of action. 839. 823. Notice of action to persons act- ing in execution of the larceny 840. act. 824. Notice of action to persons act- ing in execution of the metro- 841. politan police act. 825. Persons entitled to the benefit of 842. the protection. 826. Length of notice of action. 843. 827. Statement of the cause of action. 828. Tender of amends. 844. 829. Payment of money into court. 845. B30. Parties to be made plaintiffs — 84b. Master and servant. 831. Of the parties to be made de- 847. fendants. 848. 832. Liability of a corporation to an action for an assault. 849. 833. Subsequent ratification of wrong- ful imprisonment rendering the ratifying party responsible for the wrong. Declarations for an assault and false imprisonment. What may be given in evi- dence under the plea ot not guilty. Not guilty by statute. Pleas setting forth a previous hearing and dismissal by magistrates. Pleas of justification. Defense of neighbors and riends. Moderate correction by parents, schoolmasters, masters of ships, &c. Pleas of justification of imprison, ment. Evidence at the trial. Proof of an assault. Proof of an arrest and imprison- ment. Evidence for the defense. Damages recoverable. Damages where there are several co-trespassers. Prospective damages. Special damages in actions for false imprisonment. Evidence in mitigation of dam- ages. SECTION I. OF ASSAULT AND BATTERY, AND MAYHEM. 787. What constitutes an assault. — Every laying of hands on the person of another, and every blow or push, consti- tutes 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-defense, or in defense of one's property, or in obedience to some legal warrant or authority, or was the result of inevitable acci- dent. Every attempt, also, to offer with force and violence, Sec. I.J ASSAULT AND BATTERY. 3 to do hurt to another, constitutes an assault, such as striking at a person with or without a weapon ; holding up a fist in a threatening attitude, sufficiently 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 pistol- shot range, and near enough to create terror and alarm ; riding after a man with a wh,ip threatening to beat 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 unintention- ally striking another ; {b) cutting off the hair of a pauper in a poor-house ; [c) throwing water upon the person of an- other ; {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 dis- tant from each other that immediate contact is impossible, there is no assault, {f) 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, ig) 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, {k) 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 (a) Bac. Abr. Assault. Martin v. {e) Read v. Coker, 13 C. B. 860. Shopper, 3 C. & P. 373. Stephens v. (/) Pollock, C. B., Cobbett v. Grey, 4 Myers, 4 C. & P. 35c. Rex v. St. Exch. 744. George, 9 C. & P. 493. {g) Tulaerville v. Savage, i Mod. 3. (^) James v. Campbell, 5 C. & P. 372. [h) Blake v. Barnard, 9 C. & P. 628. 1 Forde v. Skinner, 4 C. & P. 239. (z) Coward v. Baddeley, 4 H. & N ) Pursell V. Home, 3 N. & P. 564. 481 ; 28 Law J., Exch. 261. » 4 THE LAW OF TORTS. [Ch. XII against the person of another in endeavoring to make a way through a crowd ; but if it is done in a rude and violeni 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 assaulted, and therefore it can not be said that a per- son 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. {Ji) 788. Assaults resulting from acts of negligence. — An assault may be committed without any design or intention to com- mit an assault, for if the person of one man is violently struck through the carelessness and negligence of another, this is an assault, and it is no answer, as we have seen, to say that it was done unintentionally. Thus, if a man drives against and violently upsets the plaintiff in his carriage, and knocks ■ him down, or overturns 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. (/) ' (;■) Cole V. Turner, 6 Mod. 149. R. v. Johnson, 34 Law J., M. C. 192. {Ji) Christopherson v. Bare, 11 Q. B. (/) Hopper v. Reeve, 7 Taunt. 698. 477. Reg. V. Martin, 9 C. & P. 214. ' The distinction between an assault and a battery is, that the one is an ofFer to strike or commit violence to another against his will, while a battery is an actual violence done to the person of another without his assent ; United States v. Hand, 2 Wash, (U. S.) 435 ; Johnson v. Tompkins, I Baldwin (U. S.) 571 ; Smith v. State, 12 Ohio St. 466 ; Duncan v. Com., 6 Dana (Ky.) 295 ; but in all cases in order to constitute an assault there must be an intetit to injure, and the person making it must be in a position that, if not prevented, he can carry his intent into effect ; Richels v. State, i Sneed. (Tenn.) 606 ; State v. Malcolm, 8 Iowa, 413 ; People v. Yslas, 27 Cal. 630; see note, ante ; United States v. Orteza, 4 Wash. (U. S.) 534. So it has been held that one may commit an assault by merely stopping a person on the street, and by threats or menaces preventing him from passing ; Johnson v. State, 17 Tex. 515 ; or doubling one's fist and approaching another with a threat to strike, if certain things are done; United States v. Myers, I Cranch C. C. (U. S.) 310; United States v. Richardson, 5 Id. 348 ; or riding a horse so near another as to endanger his person and engender a fear that it is the rider's intention to ride over him ; State v. Sims, 3 Strob. (S. C.) 137 ; or approaching another threateningly brandishing a knife or other weapon ; Barnes v. Martin, 15 Wis. 240; or pointing a loaded gun or pistol at another and threatening to shoot, although there is no actual attempt to shoot, if ihe circumstances are such as to indicate an intention to do so, or the means of carrying the threat into execution ; United States v. Kierman Sec. I.] ASSAULT AND BATTERY. 5 789. Assaults by constables — Handcuffing unconvicted prison' ers. — If a constable orders an unconvicted prisoner to be handcuffed when there is no attempt to escape, nor any rea- 6 Cranch C. C. (U. S.) 435 ; Kiefe v. State, 19 Ark. 190 ; Richels v. State, ante ; Com. V. McLaughlin, 5 Allen (Mass.) 507 ; so it has been held an assault for one to point a pistol at a person, which is not loaded, if the person at whom it is pointed does not know but that it is loaded, or has no reason to believe that it is not ; State V. Cherry, 11 Ired. (N. C.) 475 ; State v. Shepherd, 10 Iowa, 126; Beach v. Han- cock, 27 N. H. 223 ; but the doctrine of these cases, except in special instances, is not consistent either with principle or authority. It is a matter of no consequence in determining the character of the offense in the first instance, whether the pistol which was pointed was loaded or not. It is not the fear excited in the person assaulted that constitutes an assault, but the actual intention of the person making it. If he did not know whether the pistol was loaded or not, his pointing it at a person and threatening to shoot, might well be said to be an assault, because his intention is evident, and that is the gist of the offense. In order to constitute an assault there must " in all cases be the means of carrying the threat into exe- cution" or the person making it must suppose that such is the case ; Blake v. Barnard, 9 C. & P. 620 ; Stephens v. Myers, 3 C. & P. 374 ; State v. Richels, flK/f. If I raise a feather at another person, and threaten to knock his brains out with it, this can not be said to be an assault, for the very nature of the weapon defeats the intention, and shows the absurdity of my threat. So if I point a pistol at an- other, knowing that it is not loaded, and threaten to shoot him with it, the very fact that the pistol is not loaded, deprives the act of the elements essential to constitute it an offense, — " intention and the means of executing it." But if A points a pistol at B, knowing that it is not loaded, and B, supposing that it is, or not know- ing but that it is, shoots A, he would under proper circumstances be justified, for he would have a right to believe his life in danger or that he was in danger of re- ceiving bodily harm from A. As to the necessity of showing an actual intention to carry a threat into execution, and the means of doing it, see State v. Bryson, I Wins. (N. C.) 86 ; Lawson v. State, 30 Ala. 14 ; Osborn v. Veitch, I F. & F. 317; Stephens v. Myers, ante ; State v. Davis, I Ired. (N. C.) 125 ; Woodruff v. Woodruff, 22 Ga. 237 ; Blake v. Barnard, 9 C. & P. 626 ; Smith v. State, 39 Miss. 521 ; State v. Blackwell, 9 Ala. 79 ; State v. Morgan, 3 Ired. (N. C.) 186 ; Com. v. Eyre, I S. & R. (Penn.) 347 ; State v. Crow, i Ired. (N. C.) 375; State v. Benedict, II Vt. 236; People v. Bransby, 32 N. Y. 525. Any actual violence inflicted upon one person by another is both an assault and battery, if it is done intentionally ; Johnson v. State, 11 Tex. 515 ; State v. Davis, I Hill (N. Y.l 46 ; thus, the mere touching of a person, willfully and in anger, or any- thing about his person, as his coat ; Respublica v. De Longchamps, i Dall. (U. S.) 114; United States v. Ortega, 4 Wash.. (U. S.) 434 ; or a cane in his hand ; State v. Davis, ante ; but in order to constitute a battery, something attached to the person must be touched, and against the will of the person touched, and with a malicious intent ; State v. Breck, i Hill (N. Y.) 363 ; Mills v. Carpenter, 10 Ired. (N. C.) 298 ; Smith v. State, 10 Ohio St. 466 ; Duncan v. Com., 6 Dana (Ky.) 295 ; thus, if A raises a club and approaches B with an intent to strike B, who is in a carriage, and actually strikes at him, but only hits the carriage or horse, this is not a battery upo' B, but an assault merely. 6 THE LAW OF TORTS. [Ch. XII. sonable ground to fear a rescue, the constable will be respon- sible in damages for an assault, {m) 790. Assault and battery. — A battery as distinguished from {m) Post, ch. 18, s. 2, Griffin v. Cole- 265. Wright v. Court, 4 B. & C. 596. man, 28 Law J., Exch. 134 ; 4 H. & N. An assault and battery committed upon one with his consent, and at his request, and for some purpose which the person supposes will be beneficial to him if within the limits of the license, is not actionable, for there is an absence of malice or wrongful intent. But if the battery is for an unlawful purpose, or is excessive, the assent will not operate as a defense ; Pillow v. Bushnell, 5 Barb. (N. Y.) 156 ; State V. Breck, i Hill (N. Y.) 363. For instances where assent was held not a defense, see Stout v. Wren, i Hawks (N. C.) 420 ; Logan v. Austin, I Stew.(Ala.) 476. In order to constitute an assault and battery actionable, or indictable, it must have been done unlawfully, for a mere accidental injury inflicted upon another, is not a battery, nor is it actionable unless it is shown to result from negligence. Thus in Morris v. Piatt, 32 Conn. 75, it was held that, where one was assaulted by an- other under such circumstances as warranted a reasonable apprehension that his life was about to be taken, fired a pistol at his assailant, and missing him accidentally hit the plaintiff, unless he could be held chargeable for negligence, no action would lie against him, for the act which produced the injuiy was lawful. Therefore, a, battery inflicted by one in the reasonable defense of his person ; Com. v. EUenger, I Brewster (Penn.) 352 ; State v. Davis, 7 Jones (N. C.) 52 ; Murray v. Boyne, 42 Mo. 472 ; Morris v. Piatt, 32 Conn. 75 ; or his property, real or personal, but the force used must not be in excess of that necessary for protection of person or prop- erty, is not actionable. Baldwin v. Hagan, 6 Conn. 453 ; Scribner v. Beach, 4 Den. (N. Y.) 448 ; Hill V. Rogers, 2 Iowa, 67 ; Thompson v. Berry, I Cranch C. C. (U. S.) 45 ; Davis v. Whitridge, 2 Strob. (S. C.) 232 ; Robinson v. Hawkins, 4 T. B. Mon. (Ky.) 274 ; Elliott v. Brown, 2 Wend. (N. Y.) 497. But in order to justify an assault and battery in defense of either person or property, the danger must be such as to create an apprehension of danger in the mind of a reasonable man, and must not be in excess of the force reasonably necessary to prevent the consummation of the injury, and as to whether or not more force was used than was necessary, is purely a question of fact for the jury. Gallagher v. State, 3 Minn. 270. And the force used to repel the assault, is to be measured by the nature and character of the assault itself. The mere raising of the hand or fist in a threatening manner is an assault which a person will be justified in repelling, but common sense dictates that such an assault would not justify the person assaulted in stabbing his assailant with a knife, or shooting him with a pistol or gun, or striking him with a club. It would merely warrant the assailed person in using that degree and form of force, reasona- bly necessary to prevent injury to himself from his assailant, and must be measured by the assault itself and by the attendant circumstances, and a person judges and acts at his peril. Com. v. Ellinger, i Brews. (Penn.) 352 ; Floyd v. State, 36 Ga. 91. But, on the other hand, if a person raises an axe, knife, pistol, heavy club, or other dangerous or deadly weapon in a threatening manner, and approaches another vnth an evident intention to do him bodily harm, and there is no ready or reasonable avenue for retreat, the person assailed would be justified in meeting the assault with similar weapons, or with any weapons necessary to protect his own life and. Sec. I.] ASSAULT AND BATTERY. 7 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, (0) or has water, stones, or dirt rudely thrown upon him, (/) or has his hat insolently knocked off, or his hair forcibly cut, {g) (») Rawlings v. Till, 3 M. & W. 28. 4 N. & P. 564. {0) Reg. V. Cotteswoith, 6 Mod. 172. (g) Forde v. Skinner, 4 C. & P. 239. (J) Pursell V. Horn, 8 Ad. & E. 604 ; if the circumstances are such as to raise an apprehension of clanger of great bodily harm, in t/ie mind of a reasonable person, if the assailant is permitted to carry out his purpose, and the person assailed can not reasonably retreat, he luill be justified in taking the life even of his assailant. Floyd v. State, ante ; Scribner v. Beach, 4 Den. (N. Y.) 448. The mere fact that a person believed himself in danger of bodily harm is not enough ; he must show that the circumstances were such as to occasion an appre- hension of danger in the mind of a reasonable person. State v. Bryan, I Wins. (N. C.) 86. Nor can the act be justified, if the person assaulted provoked the assault, and as to whether he did provoke it, and as to whether he was justified in using the degree of force employed in repelling it is a question for the jury from all the cir- cumstances. State V. Bryson, ante. In order to justify a battery, there must be an actual assault, or an attempt to infringe upon one's rights of property. The use of abusive, insulting, or opprobrious language, however aggravating or humiliating, will never justify, although it may sometimes serve to mitigate, an assault. The right of assaulting another, is only given by the law, in cases where it is rendered necessary for the protection of one's person or property, real or personal, or of his wife and children or members of his family ; Hill v. Rogers, 2 Iowa, 67. Opprobrious or insulting words must be borne without physical resistance, however provoking, and if one so far forgets himself as to allow his passions, thus excited, to involve him in an assault upon the person, the law will not protect him against liability for, although it may mitigate the offense ; Thompson v. Munnua, 2i Iowa, 65 ; Cushman v. Ryan, I Story (U. S.) 91 ; State v. Wood, I Bay. (S. C.) 351 ; and in order to allow evidence of such provocation to be given in mitigation, it must be shown to be immediate, and so recent as to warrant a presumption that the assault was committed under the immediate influence of it.^ If the provocation arose some time before the assault, it is not admissible in evi- dence even ; Barry v. Inglis, I Tayl. (N. C.) 121 ; Matthews v. Terry, 10 Conn. 455 ; Ellsworth v. Thompson, 13 Wend. (N. Y.) 651; Lee v. Wolsey, ig Johns. (N. Y.) 319 ; Cox V. Whitney, 9 Me. 531 ; Jakeway v. Dula, 7 Yerg. (Tenn.) 82. Any person present, aiding or abetting an assault, may be held chargeable there- with civilly or criminally, and as there are no accessories in trespass, but all are regarded as principals, in a civil action the assault may be charged to have been made by any person who aided or abetted it, even though he did not strike a blow, and evidence that an assault was committed which the defendant upheld or aided or abetted, will be sufficient to support an allegation of an actual striking and wound- ing by him ; Gaetz v. Ambs, 27 Mo. 28 ; and the fact that the defendant has beep criminally proceeded against, is no bar to a civil action, nor to the recovery of ex- emplary damages ; Hoadley v. Watrous, 45 Vt. 287 ; 12 Am. Rep. 197. 8 THE LAW OF TORTS. [Ch. XII. 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 m friendship, clap a man on the back, and it would be ridiculous to say that every such case constitutes a bat- tery." {s) A touch given by a constable's staff in order to engage the attention of a person is not a battery, {t) 791. Mayhem and wounding. — When the assault has been carried to the extent of maiming or crippling, or of wound- ing 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 wound- ing amounts to a felony, or can be justified or excused in the manner presently mentioned. The old word " mayme " or " meyhem," derived from the French word meyhemer, 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 himself or annoy his adversary ; such as the cutting off, disabling, or weakening a hand or finger, striking out an eye or foretooth, breaking a bone, or injuring the head, or wounding a sinew, &c. {^ 792. Assault and battery in self-defense. — If the assault is in self-defense, 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 assaulted the defendant, who thereupon necessarily committed the alleged assault in his own defense, {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 bat- tery is excusable ; {w) but he has no right to revenge himself, and if, when all the danger is past, he strikes a blow not neces- sary for his defense, he commits an assault and battery, {x) {r) Dodwell V. Burford, I Mod. 24 ; I (u) Bac. Abr. Maihem Beames's Sid. 433. Glanv. p. 350. Bract, lib. 3, tr. 2. (j-) Ld. Hardwicke, Williams v. Jones, (w) See 15 & i6 Vict. c. 76, sched. B. Hard. 301. (w) Oakes v. Wood, 3 M. & W. 150. (t) Wiffin V. Kincard, 2 B. & P. N. R. {x) Coleridge J., Reg. v. DriscoU, Car 472. Coward V. Baddeley, o«/?. & M. 214. Sec. L] assault AND BATTERY. g 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 can not be justified, (jj/) ' 793. Assault in defense of the possession of a house, or close, or of property. {£) — An atrsault and battery may be justified in defense of the possession of a house or a close, or a vestry- room, or pulpit, (a) or in defense of the possession of goods and chattels by the person entitled to the possession and use of them. (3) " If one man enters the house of another with force and violence, the owner of the house may justify turn- ing 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 xipon 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 in- truder 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 authority and at the request of the master of the house, himself 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. {dy 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 (jc) Holt, C. J., Cockcroft V. Smith, II 8; 27 Law J., Q. B. 37; Bro. Abr Mod. 43. Trespass, pi. 128. (z) As to equitable defense in such a (b) Roberts v. Taylor, i C. B. 149. case, see Allen v. Walker, L. R. 5 Exch. (c) Weaver v. Bush, 8 T. R. 78. 187. (1^) Wheeler v. Whiting, 9 C. & P. 265. (a) Jackson v. Courtenay, 8 Ell. & Bl. ' Schlosser v. Fox, 14 Ind. 365 ; Halliday v. Noble, I Barb. (N. Y.) 137. ' Ford V. Logan, 2 A. K. Mar. (Ky.) 325 ; McAuley v. State, 3 Iowa, 435 ; Com. V. Lakeman, 4 Gush. (M.-iss.) 597 ; U. S. v. Bartle, I Cr. C. C. (U. S.) 236 ; Causee V. Anders, 4 Dev. & B. (N, C.) 246. ' Sampson v. Henry, 11 Pick. (Mass.) 379; McDermutt v. Kennedy, i Harr. (Del.) 143 ; Mcllroy v. Cochran, 2 A. K. Mar. (Ky.) 276. * Baldwin v. Hayden, 6 Conn. 453 ; Gyne v. Culver, 47 Barb. (N. Y.) 592 ;, Davis V. Whitridge, 2 Strob. (S. C.) 232 ; Com. v. Goodwin, 3 Cush., (Mass.) 154 Dale V. Erskine, 35 N. H. 503 ; Robinson v. Hawkins, 4 T. B. Mon. (Ky.) 136. lo THE LA W OF TORTS. [Ch. XII, to leave the shop after having been requested so to do by the sb.opkeeper 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 landlord requests him to go out, and he will not, the landlord may turn him out, though the disturbance does not amount to a breach of the peace. To do this, 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 un- justifiable assault upon the landlord. (/) ' 794. 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, (^) unless the person making the forcible entry is a constable or officer acting under competent legal authority ; for there is a manifest distinction between endeavoring to turn a man out of a house or close into which he has previously entered quietly, and residing a forcible attempt to enter, (h) The same rule prevails with regard to a forcible seizure of goods and chat- tels, for wherever force is used to gain possession of a thing, " the force may be opposed by force without more ado," («') although the person using the force has a right to the posses- sion he seeks to acquire." {e) Timothy v. Simpson, 6 C. & P. 500. (K) Polkinghorn v. Wright, 8 Q. B (/) Howell V. Jackson, 6 C. & P. 725. 206. Webster V. Watts, 11 Q. B. 311; 17 Law («) Green v. Goddard, 2 Salk. 641; J., Q. B. 73. Owen, 150. {g) Tullay V. Reed, i C. & P. 6. • In Howell v. Jackson, 6 C. & P. 725, Parke, B. said, " There is no doub t that a landlord may turn out a person who is making a disturbance in a public house, though such disturbance does not amount to a breach of the peace. To do this the landlord may lay hands on him, and in doing so, is not guilty of a breach of the peace." The only distinction between a putting out by the landlord of one who is actually committing a breach of the peace, and one who is creating a disturbance or misbehaving himself, is, that in the former case there need be no request to depart, before violence is used, whereas in the latter case there must be, and a reasonable time given for him to do so before actual force is resorted to. 2 Mcllroy v. Cochran, 2 A. K. Mar. (Ky.) 276; Hyatt v. Woods, 3 Johns. (N Y.) 339 ; Sampson v. Henry, 11 Pick. (Mass.) 379. Sec. I.] ASSAULT AND BATTERY. ii 795- Resistance to a forcible entry by a landlord. — A forcible entry is expressly prohibited by the 5 Rich. 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 posses- sion, this is a forcible entry. (7) If a tenant who holds over after the expiration of his lease is -de 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 can not 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 can not truly say that this was done in defense of his (the land- lord's) possession of the house, such possession not having been gained until after the exercise of the act of force consti- tuting 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 trespass, and he may be turned out of the house or off the land. \k) ' 796. Assaults in preservation of the public peace. — Any per- son who 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. (/) 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 purpose, {ni) 797- Battery and wounding in self-defense , or in defense of the possession of tenements or chattels. — When a person has (y) Bosanquet, J., Newton v.Harland,. ton v. Costar, 7 T. R. 431. Butchery. I Sc. N. R. 474 ; I M. & Gr. 660 ; Bac. Butcher, 7 B. & C. 402. Abr. Forcible Entry. (/) Noden v. Johnson, 16 Q. B. 218. (k) Browne v. Dawson, 12 Ad. & E. (ni) Timothy v. Simpson, 6 C. & P. 629. Taylor v. Cole, 3 T. R. 295. Taun- 500. ' Carey v. People, 45 Barb. (N. Y.) 262 ; Sampson v. Henry, ante ; ITiggins v. State, 7 Ind. 549 ; Com. v. Lakcman, 4 Cush. (Mass.) 597 ; Causee v. Anders, 4 Dev. & Bat. (N. C.) 246 , McAuIey v. State, 3 Iowa, 435 , Bush v. State, Tread. (S. C.) 489. 12 THE LAW OF TORTS. [Ch. XII. 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 m such a way as to put him into bodily fear, the mayhem oi wounding, if inflicted in self-defense, is held excusable. " A man can not justify a maim for every assault, as, if A strikes B, B can not justify the drawing his sword and cutting ofl his hand." {n) " If A strike B, and B strike again, and they close immediately, and in the scufHe 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." (p) ' " Cockcroft in a scuffle ran his finger towards Smith's eye, who bit a joint off from the plaintiff's finger: the ques- tion was, whether this was a proper defense for the defend- ant to justify in an action of mayhem ; and Hoi-T, 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 case plead what is necessary for a man's defense, 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." (/) 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 complains 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 plaintiff intruded himself into the defendant's dwelling-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 meas- ures 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 must be shown that the force used was no more than was reasonably necessary to overcome such '"esistance. {g) (?i) Pur. Cur. Cook v. Beal, I Ld, (/) Cockcroft v. Smith, II Mod. 43. Raym. 177 ; 3 Salk. 115. (q) Gregory v. Hill, 8 T. R, 29^: (o) Cockcroft V. Smith, 2 Salk. 642. Oakes v. Wood, 2 M. & W. 291. ' See note i, page 4. Sec. II.J false IMPRISONMENT. 13 In an action of trespass it was alleged that the defendant overturned a ladder upon which the plaintiff was standing, and threw the plaintiff from it upon the ground, and the de- fendant pleaded that he was possessed of a house and garden, and that the plaintiff erected a ladder in the garden, and went up 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 plain- tiffs persisting in nailing the board, he gently shook the lad- der, 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 overturning and throwing down of the ladder, however gently, with the plaintiff upon it, was unjustifiable, and the plea bad. (r) SECTION II. OF FALSE IMPRISONMENT. 798. 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 executed at an unlawful time. 799. Constructive imprisonment. — Actual contact is not nec- essary 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 per- son 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 imprisonment, (j) If a bailiff who has a process against any one says to him, " You (r) Collins v. Renison, Say. 138. (s) Warner v. Riddiford, 4 C. B. N. S, 206. 14 THE LA W OF TORTS. [Ch. XII. 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, be- cause he submitted to the process. (/) If a person is com- manded 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 will which constitutes the imprisonment. («) " 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 pow- er to compel him, that is an arrest." {x) But a partial re- straint of the will 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, {yj (t) Grainger v. Hill, 4 B. N. C. 212. (x) Tindal, C. S., Wood v. Lane, 6 G (a) Williams, J., Bird v. Jones, 7 Q. B. & P. 774. 743 ; 2 Inst. 589 ; Bull, N. P. 62. (y) Bird v. Jones, 7 Q. B. 742. ' It is enough to uphold an action for a false imprisonment if the plaintiff is pre- vented from going where he pleases, even though he is not assaulted, provided he is so deterred from exercising his will by a reasonable apprehension of personal danger ; Smith v. State, 7 Humph (Tenn.) 43 ; Johnson v. Tompkins, I Bald. (U. S.) S71 ; Pilie V. Hanson, g N. H. 491 ; Floyd v. State, 7 Eng. (Ark.) 43. It is not necessary that a person should be confined in a prison or house ; it is enough if he is forcibly detained in the public streets ; Floyd v. State, ante. A false imprison- ment is any unlawful detention of a person against his will^ whether under a void process or without any process at all. It is placing a person against his will in a position where he can not exercise his will, in going where he lawfully may go, and holding him subject to the will of another, without lawful authority ; Crowell v. Gleason, 10 Me. 325. Sec. II.] FALSE IMPRISONMENT. 15 800. Imprisonment by order of a judge or judicial officer. — All judges of a court of record have power to commit to the custody of their officer sedente curia, by oral command, without any warrant made at the time. This proceeds upon J the ground that there is, in contemplation of law, a record of such commitment, which record may be drawn up when necessary. A prisoner is in lawful custody although com- mitted to prison for the purpose of being brought up again for rehearing, without any warrant or commitment in writ- ing. (^) ' 801. A rrest 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 jus- tified in making an arrest, unless the arrest be made for fel- ony, or suspicion of felony, (a) 802. Arrest by constables without warrant. — A constable has no power at common law to arrest a person without war- rant on suspicion of his having committed a misdemeanor ; {b) but if he has reasonable 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 his conduct investigated, (d') '' There is no (z) Kemp V. Neville, 31 Law J., C. P. 134 ; 4 H. & N. 265. 165. Throgmortoa v. Allen, 14 M. & (c) Marsh v. Loader, 14 C. B., N. S, W. 70. 535- (a) Galliard v. Laxton, 31 Law J., M. {d) Beckwith v. Philby, 5 B.&C. 635 ; C. 123. 9 D. & R. 487. Lawrence v. Hedger, 3 (b) Bowditch v. Balchin, 5 Exch. 380. Taunt. 14. Buckley v. Gross, 32 Law Griffin v. Coleman, 28 Law J., Exch. J., Q. B. I2g. ' But if a justice of the peace commits a person to prison because of his refusal to comply with an order for bail, when there is no written com- plaint against him, he will be liable for false imprisonment ; Tracy v. Williams, 4 Conn. 107 ; or for any cause not justified by law ; Streshley v. Fisher, Hood (Ky.) 249 i or if a warrant is issued, and the name of the respondent is wrong ; Scott v. Ely, 4 Wend. (N. Y.) 555 ; or if a capias is issued against a defendant without a compliance with all the statutory provisions ; Whitcomb v. Cook, 39 Vt. 584 ; or an arrest upon an execution issuing upon a void judgment, or one that has been fully satisfied, or a void warrant ; Woodall v. McMillan, 38 Ala. 622. ' An officer having authority to execute criminal warrants, may arrest a person charged with felony without a warrant, upon informatioa given by others, bui ue THE LA W OF TORTS. [Ch. XII. standard or fixed rule as to what is reasonable ground ol suspicion which can be laid down as applicable to all cases. •' The charge," observes Watson, B., " maybe reasonable or unreasonable with reference to the circumstances and Che character of the party making it. And while on the one hand a constable ought to be protected in the execution ot his duties, he ought on the other to be guided in the dis- charge of those duties by ordmary reason, care, and caution." Where, therefore, a traveling 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 plaintiffs 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 bought 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 plaintiflt 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 im- prisonment, (e) But if one man charges another with having robbed him, and desires a constable to apprehend the sus- pected 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 Avith felony, and requires an officer to take him into custody, and carry him before a magistrate, " it would be most mischiev- ous," 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 ac- cused before a magistrate, who is authorized to examine and [e) Hogg V. Ward, 3 H. & N. 417 ; 27 (/) Hale, P.C., 177, Davis v. Russell, Law ]., Exch. 443. 2 M. & P. 607 ; 5 Bing. 354. does so at his peril, for, unless he has reasonable grounds for believing the person arrested to be guilty of a felony, he will be liable for assault and false imprison- ment Aarns v. Brunet, i Phil. (Penn.) 175 ; Wakeley v. Hart, 6 Binn. (Penn,) 316 ■";om. V. Deacon, 8 S. & R. (Penn.) 49. Sec. II.] FALSE IMPRISONMENT. 17 commit or discharge." {g) If an arrest by a constable is in its inception wrongful, all other constables who aid and as- sist in the continuance of the wrongful imprisonment are re- sponsible for the entire damage thereby caused to the plain- tiff, although they had no knowledge of the unlawfulness of the imprisonment, and intended to act in strict discharge of their official duty, {k) ' Every unlawful detainer of a pris- {g) Samuel v. Payne, I Doug. 360. 28 Law J., Exch. 134. Wright v. Court, (/«) Griffin V. Coleman, 4 H, & N. 265; 3 B. & C. 596. ' In Davis v. Russell, 5 Bing. 354, the question of the powers, duties, and liabilities of an officer making an arrest without a warrant were fully discussed by the court. In that case the plaintiff, an elderly lady, was arrested at her lodgings, by the defendant, between the hours of ten and eleven o'clock at night, and detained in prison until the following day, when she was taken before a magistrate and was held in prison for twenty days. The defendant showed that some two months prior to the arrest, a robbery had been committed at the lodgings where the plaintiff then resided, and that among other things done by the thief, the plaintiff's trunk was broken open and a ten-pound note stolen therefrom. That shortly after the robbeiy, the plaintiff left those lodgings and went to reside in the lodgings at Cheltenham, where she was arrested. That on the day when she was arrested, Miss Hamerton, at whose house the robbery was committed, showed the defendant, then being superintendent of the Cheltenham police, a letter addressed to the plaintiff at her former lodging-house (Miss Hamerton's) which she (Miss Hamerton) alleged that, by looking in at the ends of the letter, she believed bore some reference to the robbery, and thereby induced the defendant to break it open. The letter, which was anonymous, purported to come from an accomplice in the robbery residing in London, and demanding money of the plaintiff as a joint perpetrator of the offense. Miss Hamerton also told him that four days .after the robbery a^letter had arrived for plaintiff in the same han4writing, bearing the London post-mark, and that the plaintiff refused to show it, and Miss H. then expre-sed her suspicions that the plaintiff was concerned in the robbery, and said she thought the defendant ought to arrest her, which he did. The plaintiff, after having been detained twenty days, was discharged, it having transpired that the robbery was, in fact, committed by Miss Hamerton, who was, tried and convicted therefor. The judge charged the jury, that if the constable had a complaint made to him under such circumstances as to induce him to believe it true, he had a right to take the plaintiff into custody, provided the facts were such as to warrant an apprehension ; and that the jury must consider whether the state ment they had heard, satisfied them, looking at the letter and the other facts, that the defendant had reasonable grounds to suppose the plaintiff implicated in the felony with which she had been charged, and whether, standing in his place, they would have made the arrest. The jury having found for the defendant, upon appeal the ruling of the court was fully sustained. The authority of a constable to arrest one without a warrant, where the offense was committed in his view, or for a felony, when acquainted with the facts by mother, has long been recognized. I Hale's P. C. 567 ; 4 Inst. 177-222 ; Beck- II. — 2 i8 THE LAW OF TORTS. [Ch. XII, oner after he has gained a right to be discharged is a fresh imprisonment. («') 803. Arrest by private persons without warrant. — " If trea- son or felony be 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 determined by the justices in an ac- tion for false imprisonment brought by the party grieved, or upon a habeas corpus." {Ji) 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 im- prisonment, 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 circum stances 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 ; (/) whereas a constable having reasonable 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 in- vestigated, (m).^ (i) Withers v. Henley, Cro. Jac. 379. C. & P. 526. Hall v. Booth, 3 N. & M {k) 2 Inst. 52, Davis v. Russell, 5 316. B'-ng- 357 ; 2 M, & P. 590. (m) Ld. Tenterden, Beckwith v. (/) Tindal, C. J., Allen v. Wright, 8 Philby, 6 B. & C. 638. with V. Philby, 6 B. & C. 637 ; Reynolds v. Kennedy, I Wils. 232 ; Ledwith v. Catchpole, Cold.. 291 ; Samuel v. Payne, 7 H. 4, 35, pi. 3 ; Rohan v. Sawin, 5 Cush. (Mass.) 281 ; Com, v. McGahey, II Gray (Mass.) 194 ; McLennon v. Richard- son, 15 Id. 74 ; In Re Powers, 25 Vt. 261. ' A private person may arrest a person for a felony, without a warrant, even though there is time to first obtain a warrant. Keenan v. State, 8 Wis. 132 ; Hol- ley V. Mix, 3 Wend. (N. Y.) 350. But he must first be sure that the person has committed a felony, as otherwise he will be liable for trespass and false imprison- ment, unless there was a reasonable ground to suspect the person arrested. Com V. Deacon, 6 S. & R. (Penn.) 49 ; Pennsylvania v. Kerr Add (Penn.) 325 ; Wake- ley V. Hart, 6 Binney (Penn.) 316. But see Findlay v. Pratt, 9 Port. (Ala.) 295 Aarns v. Brunet, I Phil. (Penn.) 175 ; where it was held that a private person arrested a person for a felony, without a warrant, at his peril, and that unless the person had, in fact, committed a felony, the ai-rest is illegal, and the person making it, liable in trespass therefor. See also to the same effect, Johnson v. Tompkins, 1 Bald. (U. S.) 578. But the defendant may show, in mitigation of damages, that Sec. II.] FALSE IMPRISONMENT. 19 Every person to whom property is offered to be sold, pawned, or delivered, may, if he has reasonable cause to sus- pect that an offense 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 jus- tice of the peace ; {n) and any person "found committing" an offense punishable by the Act, except the offense of angling in the daytime, may be immediately apprehended by any per- son without a warrant, and taken before a justice, together with the property, if any. — Ibid. 804. Arrest for a 77iisdemeanor. — Regularly no private person can of his own authority, without warrant, arrest another for a misdemeanor, 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 anyone may appre- hend a common notorious cheat going about the country with false dice, and being actuall}"^ caught playing with them, in order to have him before a justice of the peace, for the pub- lic good requires the utmost discouragement of all such per- sons ; and the restraining of private persons from arresting them without a warrant from a magistrate would often give them an opportunity of escaping." {p) " These cases in Haw- kins," observes Lord Tenderten, " are where the party is («) 24 & 25 Vict. v.. 96, s. 103. See (o) Hawkins, P. C. 2, c. 12, s. 20. 32 & 33 Vict. c. 12, B. 10 ; c. 57, s. 6. he had a reasonable ground to suspect the person arrested to have been guilty of a felony. Phillips v. Trull, 11 Johns. (N. Y.) 486 ; Rogers v. Wilson, Minor (Ala.) 407 ; Wrexford v. Smith, 2 Root (Conn.) 486 ; Eames v. State, 6 Humph. (Tenn.) 53 ; Drennan v. People, 10 Mich. 169. But a private person, as well as an officer, may arrest, without a warrant, any person whom he sees committing a felony or a breach of the peace. In Re Powers, ante ; People v. Adler, 3 Parker C. R. Rep. (N. Y.) 249 ; Broclcway v. Crawford, 2 Jones (N. C.) 4S3 ; Knot v. Gay, i Root (Conn.) 66 ; Phillips v. Trull, II Johns. (N. Y.) 486 ; Taylor v. Strong, 3 Wend. (N. Y.) 384 ; Vanderveer v. Mattocks, 3 Ind. 479 ; City Council v. Payne, 2 N. & M. (S. C.) 475 ; Mayo v. Wilson, i N. H. 53. So where a person who has been arrested for a felony, escapes, any person may arrest him without a warrant. Com. T. Sheriff, i Grant's Cas. (Penn.) 187 ; Dow's Case, i8 Penn. St. 37. 20 THE LA W OF TORTS. [Ch. XII, 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 misdemeanor, the parties aggrieved should apply to a justice of the peace for a warrant, and not take the law into their own hands." (/)' 805. 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, {q) 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 consequence of that representation, he has obviously no valid ground for complaining of the imprisonment which nat- urally resulted from his own act. But after he has given notice that he is not the person he represented himself to be, he can not 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)' 806. Arrest for malicious injuries to property. — The statutes for consolidating the laws relative to malicious injuries to property, enact that any person found committing any offense 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 neighboring 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 offense prohib- ited and made punishable was actually committed, if) that the {p) Fox V. Gaunt, 3 B. & Ad. 800. S. 495 ; 26 Law J., C. P. 267. Xq) Davies v. Jenkins, 11 M. & W. (s) 24 & 25 Vict. c. g7, s. 61. 754. (0 Parrington v. Moore, 2 £xch. 225. (r) Dunston v. Paterson, 2 C. B., N. ' Wood V. Brooklyn, 14 Barb. (N. Y.) 425 ; Paw v. Becknel, 3 Ind. 475 ; Phillips V. Trull, 11 Johns. (N. Y.) 486. * Aarns v. Brunei, i Phil. (Penn.) 175 ; Johnson v. Tompkins, I Bald. (U. S.) 578 ; and he must not be detained an unreasonable time. Johnson v. Americas, 46 Ga. 80 ; Flinn v. Graham, 3 Pitts. (Penn.) 195. Sec. II.] FALSE IMPRISONMENT. 21 plaintiff was found and taken in the act, {li) and that the per- son arresting was either the occupier or the landlord of the property injured. It must also be shown that the trespass was a willful and malicious trespass. 807. Willful and malicious trespass. — A trespass can only be willful and malicious where it is committed by a person who knows that he has no claim or pretense of right to enter the land. If he had reasonable ground for supposing that he had a right, his conduct can neither be called willful nor mali- cious, {x) 808. Arrest of persons committing indictable offenses in the night. — It is lawful for a private individual to apprehend any- one who shall be " found committing " any indictable offense in the night, /. e., between 9 P. M. and 6 A. M., and to convey him or deliver him to some constable or other peace-of&cer, to be conveyed before a justice of the peace, to be dealt with according to law. ( j) 809. Arrest for an assault and breach of the peace. — A con- stable may ex officio arrest a breaker of the peace in his view, and keep Mm in his 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 C thereupon come to the constable and tell him that B hurt him, the con- stable 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 can not 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 conveni- ently 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 («) Simmons v, Millingen, 2 C, B. (j/^ 14 & 15 Vict. c. ig, s. II. 530. («) Hale, P. C. 587. (jr) Looker v. Halcomb, 12 Moore, (a) Reg. v. Light, 27 Law J., M. C. I 416 4 Bing. 183. 22 THE LAW OF TORTS. [Ch. XII. person into custody, but not in giving him a blow, {b) nor in nandcuffing him. Various statutes provide for the punishment of all persons who shall assault peace-officers or revenue officers, (c) metro- politan police-officers, {d) special constables and district con- stables, {e) in the execution of their duty, or who aid or incite others so to do. 8io. Arrest during 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 breaking 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 affi-ayer 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 can not after the affray has ceased lawfully give the affrayers, or one 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 affray. (/) If the affrayers, on seeing or hearing that the police-constables are coming, run away and disperse, they can not lawfully be pursued and taken by constables, or given into custody by private individ- uals, 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, (i) The continued ringing at a door-bell without cause or ex- cuse 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 calculated to lead to a breach of the peace, and if it is done and persisted in within view of a constable, the lat- ter may take the aggressor into custody. (/) And if the nuis- ance be committed within the metropolitan police district, (i) Levy V. Edwards, i C. & P. 40. 39. (osi. V. Lond. and S.-West. Rail. Co., 26 Law 28 THE LAW OF TORTS. [Ch. XII a superintendent, 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 offenses for which persons found in the commission of them are liable to be at once taken into custody, and carried before a magistrate. 818. Detention of recruits and deserters.— ^'hs, Articles of War do not justify the arrest and detention by an officer oi any but a recruit or a soldier. The annual Mutiny Act gener ally enacts, that every person who shail Knowingly receive enlistment-money from certain persons employed in the recruiting-service " shall be deemed to be enlisted as a sol dier 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 pro- cured 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.' 819. Imprisonment of dangerous lunatics. — A private per son ma}'', 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 neces sary both for the safety of the lunatic, and the preservation of the public peace ; but as the custody of those unfortunate persons is matter of great public interest, the 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) estab- lish a form of proceeding, based upon medical certificates, for the purpose of facilitating the reception of persons of un- sound 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 (d) Gofif V. Gt. North. Rail. Co., ut pi. 28. sup. {g) See Gore v. Grey, 33 Law J., C, {e) See Wolton v. Gavin, 16 Q. B. 48. P. 109. (/) Bro. Abr. Faux Imprisonment, ' A private person can not arrest a deserter. Trask v. Paywe, 43 Barb (N. V.) S69. Sec. III.] A CTIONS FOR A SSA ULT. 29 are not strictly complied with, the imprisonment is unlawful. {fi) The fact of a person's acting so as to appear to be of un- sound mind is no justification to anotner 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 re- quired to be made 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 con- finement 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. (?) SECTION III. OF ACTIONS FOR AN ASSAULT AND BATTERY, AND FOR FALSE IMPRISONMENT. (_/') 820. Statutory protection to constables and their assistants from vexatious actions. — By 7 Jac. i, c. 5, and 21 Jac. i, c. 12, s. 5, it is enacted, that if any action upon the case, trespass, battery, or false imprisonment, shall be brought against con- stables, their deputies or assistants, 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 p ead 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 snah not prove to (h) Coleridge, J., Reg. v. Pinder, 24 (i) Fletcher v. Fletcher, 28 Law J., Law J., Q. B. 148. Reg. v. Munster, 20 Q. B. 134. It M. C. 48. Norris v. Seed, 3 Exch. (J) See 30 & 31 Vict. c. 142 s. 10 782. ante. 30 THE LAW OF TORTS. [Ch. XII the jury that the trespass, battery, imprisonment, or other tact or cause of action, was committed or done within the oounty wherein the action shall be laid, the jury shall find tlie defendant not guilty, without regard to any evidence on the merits. By the i & 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 com- mitted, and not otherwise ; and notice in writing of such action, and of the cause thereof, shall be given to the defend- ant one calendar month at least before the commencement of the action ; and in any such action the defendant may plead the general isstie, and give the Act and the special matter in evidence at the trial ; and no plaintiff shall recover in any such action if tender of sufficient 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. I'd, reg- ulating 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 in 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. 1 1 3 contains the usual clause for the protection of persons acting in execution of the Act, m.aking 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 recov- Sec. III.] ACTIONS FOR ASSAULT. 31 ering after tender of sufficient amends before action, or pay- ment of a sufficient sum into court after action. B}- 2 & 3 Vict. c. 71, for regulating the police courts of ; the metropolis, it is enacted (s. 53), that no action, suit, infor- 1 mation, or other proceeding, shall be brought against any person for anything done, or omitted to be done, in pursuance of the Act, or in the execution of the powers thereof, unless twenty days' 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 dam- age has ceased, nor unless the actions, &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 ^he 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 i & 2 Wm. 4, c. 41, 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 bor- oughs ; 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 to- gether as one Act. 821. Protective clauses in favor of parties acting in the exe- cution of Acts of Parliament. — Most Acts of Parliament con- ferring special powers and authorities upon constables and others for the accomplishment of particular purposes, contain the usual protective clauses for the benefit of persons acting (,J) See Mellor v. Leather, i Ell. & Bl. 623. 32 THE LA W OF TORTS. [Ch. XII. in the execution of the Act ; making the cause of action local, and requiring the action to be commenced within a cer- tain 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 plaintijBF from recovering after tender of amends. This is the case with the annual Mutiny Act, the Larceny Act, (/) the Maliciou^s Trespass Act, the Metropoli- tan Police Act, the Game Acts, the Statute for the Prevention of Cruelty to Animals, (^) the Revenue, Excise, and Customs Acts, the Public Health Act, the Contagious Diseases (Ani- mals) Act, 1869, in) and various statutes, enabling constables and private individuals to arrest persons found in the com- mission of a felonious or prohibited act. 822. Limitation of actions, and notice of action. — Protective clauses in Acts of Parliament in favor of constables and officers acting in the execution of their offices, or in favor of constables or of private individuals acting in the execution or in pursuance of particular Acts of Parliament, are intended for the 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 con- stables 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 protect- ing them in those cases where they intended to act within it, but by mistake exceeded it. (. R., 6 C, M. 23. P. 474. Sec. III.] ACTIONS FOR ASSAULT. 35 opinion on any oi the facts which must exist to give him the power will not deprive him of his right to the protection of the statute, {b) If, as a reasonably reflecting and careful per- son, he must have known that he was not clothed with the requisite official character, he has no ground for claiming the protection of notice of action, (c) 823. Notice of action to persons acting in execution of the Larceny Act. — By 24 & 25 "Vict. c. 96, s. 113, {d') it is enacted that all actions for anything done in pursuance of that Act shall be laid and tried in the county where the fact was com- mitted, 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 plain- tiff 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 per- sons reasonably suspected of felony. Several new offenses are, however, created and made criminally punishable by this statute, and sect. 103 {e) enacts that any person found commit- ting any offense punishable either upon indictment or sum- mary conviction by virtue of the Act, except only the offense of angling in the daytime, may be immediately apprehended without warrant by any person, and forthwith taken, together with such property, if any, before some neighboring 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 offense had been committed, and believed that he had found the person arrested in the act of committing it. (/) Where, therefore, the offense, if any, was , committed at I P. M., and the pursuit of the supposed offender not com- menced till 3 P. M., it was held that the person arresting was not entitled to notice. (^) . {I) Kine v. Everted, lo Q. B. 150. ie) See 32 & 33 Vict. c. 12, s. 10 \c) Lidster v. Borrow, 9 Ad. & E. 654. (/) Roberts v. Orchard, 2 H. & C, Booth V. Clive, 10 C. B. 835. 769 ; 33 Law J., Exch. 65. (d) See 32 & 33 Vict. c. 12, s. 10 ; u. {g) Downing v. Capel, L. R., 2 C. P. 57, s. 6. 461. See Leete v. Hart, supra. 36 THE LAW OF TORTS. [Ch. XII. 824. Notice of action to persons acting in execution of the Metropolitan Police Act. — The 79th section of the Metro- politan Police Act, 2 & 3 Vict. c. 47, 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 pro- hibited by the Metropolitan Police Act, he is entitled to notice of action. {H) 825. Persons entitled to the benefit of the protection. — A per- son who acts as a prime mover and principal in setting a con- stable 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 ; if) but he who acts only when required by the constable to assist him, is within the protecting clauses of the statutes.' 826. 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 notwith- standing. In the computation of the calendar month, the day of giving the notice and the day of suing out the writ are to be both excluded, for otherwise the intervening period is not a whole month as required by the statute, (y ) 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 can not properly be said to be passed until the day is passed, {k) 827. Statement of the cause of action. — A notice of action against a constable or officer should set forth the substantial ground of complaint against him, and should specify the (K) Danvers v. Morgan, I Jur., N. S., (Ji) Lester v. Garland, 15 Ves. 248. Exch, 105 1. Webb v. Fairmaner, 3 M. & W. 476. (z) Staight V. Gee, 2 Stark. 449. See See per Lord Kenyon, C. J., in Ex pdrit post. Fallon, 5 T. R. 286. (/■) Young V. Higgon, 6 M. & W. 49. ' Coyles V. Hartin, 10 Johns. (N. Y.) 85. Sec. III.] ACTIONS FOR ASSAULT. 37 time and place of the commission of the grievance. (/) 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 ; {ni) but the court in which the action is brought, if stated at all, should be correctly stated, partic- ularly if several notices of action have been served, (ji) 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, [p) but every plaintiff who sues must give notice of action, and every defendant must receive no- tice. Notice on behalf of two complaining parties, one of them being dead, was held not to support an action brought by the survivor. (/) 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 pre- cisely where the cause of injury arose. (^) When the statute requires the name and place of abode of the attorney of the party giving the notice to be endorsed on the notice, any material error or misstatement calculated to mislead will in- validate the notice ; but if the information given is sufficiently specific and sufficiently accurate to enable the defendant to avail himself of the privileges and advantage that the act in- tended to confer upon him, it will be sufficient, and it is for the defendant to show that the error or misstatement, or in- sufficient description in the notice, has deprived him of the opportunity of taking advantage of the statute, (f) 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 resi- (/) Breese v. Jerdein, 4 Q. B. 585. (k) Elstob v. Wright, 3 C. & K, 35, Martins v. Upcher, 3 Q. B. 668. Taylor \o) Bax v. Jones, 5 Pr. J'^'^. V. Nesfield, 23 Law J., M. C. 169. Jones (/) Pilkington v. Riley, 3 Exch, 741. V. Nichoils. 13 M. & W. 361. See Bur- (q) Jones v. Bird, I D. & R. 503 ; 5 B. ton V. Le Gros, 34 Law J., Q. B. 91. & Aid. 837. {m) MacGregor v. Galsworthy. I C. & {r) Osborn v. Gough, 3 B. & P. 5E4, K. 8. (j) James v. Swift, 3 B. & C. 6S1. 38 THE LA W OF TORTS. [Ch. XII dence 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, {ii) 828. 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 ex- ecution 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 dam- ages beyond the sum tendered or paid into court, they are to give a verdict for the defendant, and the plaintiff can not elect to be nonsuited. 829. Payment of money into court. — Every constable, officer, and private person 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 pay- ment under the plea of 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 can not 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, (t/) 830. Parties to be 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 maintainable, must be brought by his personal representative ; or unless the person assaulted is a servant, and the master has lost the ben- efit 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 can not have an action for the beating unless 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 net any damage by {t) Roberts v. Williams, 4 Dowl. P. C. («) HUder v. T)-^rr«4«. I T»unt. 384. 486 ; 2 C. M,. & R. 561. (j/) See 11 & is Vioi c 4.1, .-. 9, 11. Sec. III.J ACTIONS FOR ASSAULT. 39 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 can not do so where the wrong done to one is no wrong done to the other, as in the case of false imprisonment, or assult and battery, where what one man suffers is altogether different from the injury that accrues to another from the same cause, (.r) 831. Of the parties to be made defendants. — Every private unofficial person not acting in a judicial capacity, or in the authorized execution of legal process [fast, chs. 14, 15), is responsible in damages for a wrongful imprisonment, ordered, directed, or authorized by him. (^) 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 directions to police constables for the imprisonment of the plaintiff, he will be responsible in damages if he is unable to excuse or justify the act. Where the defendant out of spite and ill-will, and for the pur- pose of getting the plaintiff out of the way, went to the place of rendezvous for the impress service near the Tower, and gave information there which caused the plaintiff to be seized by the press-gang and carried on board the tender, where he was detained until 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 im- prisonment. " If a person," observes Lord Ellenborough, " 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 he should think most advisable, she would not then have been amenable to this action, but she took upon herself positively to aver that the plaintiff was compellable to serve in a king's ehip, and caused him to be seized, and she must answer for (bi) Robert Mary's case, g Co. 205. Moore, 451. (x) Best, C. J., Barratt v. Collins, 10 {y) Ante. 40 THE LAW OF TORTS. [Ch. XII. the consequences." {s) Here the person giving the informa- tion was the sole moving cause of the arrest, and herselt trumped up a false story for the very purpose of wrongfully depriving the plaintiff of his liberty. There is a wide dis- tinction, therefore, between this case and the case of a man who gives bona fide information, or makes a bona 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 defendant, and the latter seat for the police and complained of the robbery, and stated various circumstances of suspicion which had come to his knowledge, 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 plain- tiff with the felony, it was held that these facts did not render the defendant responsible for a tresp.^ss, as charging a person with an offense was a different thing from giving him into cus- tody. " The arrest and detention of the plaintiff," observes Pollock, C. B., "were the acts of tht police-officer; and the defendant did nothing more than he was, under the cir- cunistances, bound to do, viz., sign the charge-sheet. He might have been liable if he had acted mala fide, but not otf.erwise. We ought to take care that people are not put in peril for making a complaint when a crime has been com- mitted. If a charge be made mala fide, there are ample means of redress." («) But if the defendant gives the plain- tiff in charge, {b) or directs the policeman to take him into custody, he will be answerable in damages for the imprison- ment if he can not establish a justification, {c) and the signing c f a charge-sheet by the defendant is prima facie evidence against him that he ordered and directed the arrest, {d) ' : (z) Flewster v. Royle, r Campb. i88. (c) Warner v. Riddiford, 4 C. B., N. (3) Grinham v. Willey, 4 H. & N. 499 ; S. 200. Ashurst, J., in Morgan v. Hughes, 28 Law J., Exch. 242. Brown v. Chap- 2 T. R. 231. Stonehouse v. Elliot, 6 lb. man, 6 C. B. 374. 315. , (b) Hopliins V.Crowe, 4 Ad. & E. 774. (-nd one of those blunders," observes Bramwell, B., "for which a man who commits it should be punished, as it is very likely that the person charged with felony through the blun- der will, as long as he lives, be sometimes asked, whether he had not been had up before the magistrate for felony." (/) It is not necessary, in order to maintain an action against a person for having made a false and unfounded charge ot felony against another 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 satis- fied that it was made to the magistrate with a view of induc- ing him to entertain it as a charge of felony, (m) 857- Continuance by defendant of proceedings commenced witJi- out his knowledge. — When the proceedings have not been com- menced by the defendant, but have only been continued by him, his responsibility commences at the point at which he becomes cognizant of the proceedings. And there is a mate- rial 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 rXtcnding the hearing, adopts the proceeding, or renders himsi (f responsible {k) Leigh V. Webb, 3 Esp. 165. Wyatt (/) Huntley v. S'-nson, 37 Law J., V. White, 5 H. (& N. 371 ; 29 Law J., Exch. 137 ; 2 H. & N. 600. Exch. 193. (m) Clarke v. Pot,tan, 6 <, St P. 423. Sec. I J MALICIOUS PROSECUTION. -j-j for the motives or actions of the person who instituted it, al- though that person may be an agent of the defendant. («) ' 858. Effect of the complaint or information before the magis- trate being followed up by a conviction of the plaintiff. — A con- viction 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. {0) '' 859. Maliciously causing a search warrant to issue. — If a per- son, without reasonable and probable cause, and from mali- cious 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 judg- ment upon, 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 reckless- ly, and without due inquiry, sworn to what was false. (/) 860. 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, {g) 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) («) Weston V. Beeman, 27 Law J., H. & N. 565 ; 27 Law J., Exch. 222 ; 28 F.xch. 57. Law J., Exch. 225. Wyatt y. White, (p) Mellor V. Baddeley, 2 Cr. & M. 678 ; supra, ^ost, ch. 15, and s. 2 of this chapter. (q) Reed v. Taylor, 4 Taunt. 617. (/) Cooper V. Booth, 3 Esp. 144 ; (r) Delisser v. Towne, i Q. B. 343 cited I T. R. 535. Philips v. Naylor, 4 Ellis v. Abrahams', 8 Q. B. 713. ' Ruffner v. Williams, 3 W. Va. 243 ; Burns v. Erben, 26 How. Pr. (N. Y.) 273 ; Latham v. Libby, 38 Barb. (N. Y.) 339 ; Gold v. Bissell, i Wer.d. (N. Y.) 2io. ' Whitney v. Peckham, 15 Mass. 243 ; Burt v. Place, 4 Wend. (N. Y.) 591 ; Wood V. Laycock, 3 Met. (Ky.) 192 ; Driggs v. Burton, 44 Vt. 124 ; O'Brien v. Barry, 106 Mass. 300; Williams v. Woodhouse. 3 Dev. (111.) 257 ; Clark v, Cleave- land, 6 Hill (N. Y.) 344 ; Herman v. Brookerhoff, 8 Watts (Penn.) 240. ;8 THE LAW OF TORTS. [Ch. XIII. 861. Malicious prosecution by court-martial. — An action for a malicious prosecution will not lie at the suit of a subordin- ate 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 pri- vate soldier against his commanding officer for a malicious discharge, {f) 862. Malicious assertion of a legal right. — The malicious assertion of a legal right is not actionable. " Let a prosecu- tion be never so maliciously carried on, yet if there be proba- ble cause or ground for it, no action for a malicious prosecu- tion will lie." (?/) 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. (2^) ' 863. Malicious and unfounded actions. — If one man prose- cutes a civil action against another maliciously, and without reasonable and probable 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 will lie for it. {iv) There is a great difference between the bringing of an action and indicting maliciously and with- out 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 stat- l.s) Johnstone v. Sutton, I T. R. 548. See ibid, 486, in nota. Sutton V. Johnstone,.! Bro. P. C. 76. («) Anon, 6 Mod. 73. Floyd V, Barker, 12 Rep. 23. Dawkins \v) Roret v. Lewis, 5 D. & L. 373 V. Lord Rokeby, ante. Magnay v. Burt, 5 Q. B. 394. {t) Fresr v. Marshall, 4 F. & F. 485. (w) Beauchamp v. Croft, Keilw. 26. ' Parker v. Francis, i Penn. St. 156 ; Davis v. Clough, 8 N. H. 157 1 Wood- munsie v. Logan, I Id. 93 ; Stone v. Swift, 4 Pick. (Mass.) 389 ; Pierce v. Thomp- «on, 6 Id. 193 ; Gfrton v. De Angelis, 6 Wend. (N. Y.)4i8. Sec. I.J MALICIOUS PROSECUTION. 79 utes gave costs to the successful defendants. But there was no amercement upon indictments, and the party had not any remedy to reimburse himself but by action. But if A sues an action against B for mere vexation, in some cases upon par- ticular damage, B may have an action, but it is not enough to sa}' 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) ' 864. Maliciously putting the process of the lazv in motion in the name of a pauper or insolvent. — No action will lie for improperly promoting a civ-il action in the name of a third person, unless it be alleged and provbd to have been done maliciously, and without reasonable or probable cause ; (j) but if there be malice and want of reasonable or probable cause the action will lie, provided there be also legal damage. {£) If the plaintiff in an action charges the defendant with having maliciously, and without any reasonable or probable cause, commenced and prosecuted an action against him in the name of a third person for his (the defendant's) own bene- fit, whereby the plaintiff has sustained damage, and it appeafs that the party so wrongfully put forward by the defendant was a person in solvent circumstances, the action will be defeated, inasmuch as the award of costs upon the failure of that action would, in contemplation of law, have been a full compensation for the unjust vexation caused by the bringing of the action, and no damage would be deemed to have been sustained ; but if it appears that in the previous action there was judgment of non-suit, with an award of costs, and that the plaintiff was a pauper, or an insolvent, and could pay no costs, and that the defendant knew of the insolvency of the plaintiff at the time he induced the latter to bring the action, and had himself no {x) Savile v. Roberts, i Ld. Raym. (2) Williams, J., in Cotterell v. Jones, 374 ; 1 Salk. 13. II C. B. 730 ; i Roll. Abr. ACTION SUR (y) Flight V. Leman, 4 Q. B. 883. Case, H. pi. i, p. loi. ' The declaration should set forth such facts as show affirmatively a want of probable cause ; a mere allegation of malice amounts to nothing, for if there was probable cause, the most express malice would not render the defendant liable. Presfon v. Cooper, t Dill. (U. S.) 589; Davis v. Clough, 8 N. H. 157 ; FuUenwider V. McWilliams, 7 Bush. (Ky.) 389. 8o THE LAW OF TORTS. [Ch. XIII. interest in the subject-matter of the suit, there would appear to be a good ground of action, {d) 865. Maliciously issuing execution for a larger sum than is due upon a judgment. — Process of execution on a judgmen for the purpose of obtaining the sum recorded is prima faci lawful, and the judgment creditor can not be rendered re- sponsible in damages for issuing execution for more than is due upon the judgment, unless some actual damage can be shown to have been sustained by the plaintiff therefrom. It is not enough for the plaintiff to show that he was arrested and kept in custody for a greater amount than was due upon the judgment. (B) 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 his dis- charge increased. His remedy, where the thing has been done inadvertently, 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 judg- ment, 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 summary 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." (c) An action, therefore, is maintainable against a judgment creditor for maliciously and without reasonable or probable cause indors- ing a writ of ca. sa., issued on such judgment to levy a larger sum than was due, and causing the debtor to be arrested (a) Cotterell v. Jones, II C. B. 728, 305. 730; 21 Law J., C. P. 3. Attwood V. (i-) Churchill v. Siggers, 3 Ell. & BL Monger, Stjies, 378. Waterer v. Free- 938 ; 23 Law J., Q. B., 308. Jenings v. man, Hob. 266. Savile v. Roberts, I Florence, 2 C. B., N. S. 467 ; 26 Law J., Ld. Raym. 378 ; 12 Mod. 208. Pechel v. C. P. 277. Wentworth v. Bullen, 9 B. & Watson, 8 M. & W. 691. C. 849. Saxon v. Castle, 6 Ad. & E. {b) See Gerard v. Lewis, L. R., 2 C. P. 659. Sec. I.] MALICIOUS PROSECUTION. 8i 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. (^) But where before judg- ment the plaintiff paid part of the debt for which he was sued, and subsequently judgment was signed and a ca. sa. issued for the whole amount, it was held that no action lay so long as the judgment stood for the full amount, {e) 866. Maliciously causing an extent to issue. — If a defendant,, from feelings of ill-will, and with a view to annoy and injure the plaintiff, prays an extent to secure a debt due from the plaintiff to the crown, under the pretense that the debt is in danger of being lost to the crown, when he knows it not to be in danger, or has no reasonable or probable cause for be- lieving it to be in danger, he will be responsible in damages in an action for a malicious prosecution. Such a proceeding is calculated to affect the plaintiff's credit, and bring demands upon him, and be productive of injurious and even ruinous consequences to him. In the action for the malicious prose- cution, the law requires that the writ of extent should be :raced to its close, and that may be done by showing it to be discharged by the court, though upon an arrangement, and by consent. (/) 867. Malicious proceedings in bankruptcy. — An action for a malicious prosecution will lie against persons who petition for an adjudication in bankruptcy, without reasonable or proba- ble cause, and knowingly and willfully, or recklessly, swear to depositions false in fact. (^) In order, however, to prove a want of reasonable or probable cause, the proceedings must be superseded or set aside before the commencement of the action, for the very existence of a commission of bankruptcy has been held to be evidence of probable cause. (A) The mere fact, however, of the proceedings having been supersed- ed or set aside, does not of itself establish the fact of the want of probable cause for them, and the plaintiff must give some prima facie evidence of want of probable cause, in order to {) Newsam v. Carr, 2 Stark. 70. See post, cli. 17, s. 3. Thomas v. Russell, supra. {o) Downing v. Butcher, 2 M. & Rob. ( q) Freeman v. Arkell, 3 D. & R. 671. 374. Cornwall v. Richardson Ry. & M. Byne v. Moore, 5 Taunt. 191. 305. (r) Savile v. Roberts, I Ld. Raym. 378.' Sec. II.] MALICIOUS PROSECUTION. 95 cution and a verdict is given for the plaintiff, he is entitled to recover the amount of the attorney's bill as part of the dam- ages, unless each had a distinct defense and the costs thereof were severable, is) Every expense that the plaintiff has ne- cessarily 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 dec- laration, {t) 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 flagrantly ex- cessive as to afford internal evidence of prejudice and par- tiality 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, {jif is) Rowlands v. Samuel, II Q. B. 41. («) Leith v. Pope, 2 W. BI. 1326. (t) Foxall V. Barnett, ante. I Stewart v. Cole, 46 Ala. 646 ; Kindred v. Stett, 51 111. 401 ; Walker v. Martin, ;2 Id, 347 ; Reno v. Wilson, 49 111. 95 ; Chapman v. Dodd, 10 Miua, 350, 96 THE LAW OF TORTS. rcH. XIV. CHAPTER XIV. OF TREPASSES IN EXECUTION OF VOID OR IRREGULAR PRO- CESS — RESPONSIBILITY OF JUDGES AND MINISTERIAL OFFICERS OF JUSTICE, AND PERSONS SETTING THEM IN MOTION. Section I. — 0/ trespass in execution of void or irregular pro- cess — Responsibility of judges and ministerial officers of courts of justice, and persons set- ting them in motion. 883. Exemption of judges from actions in respect of things done in the exercise of their judicial functions. 884. Conditions precedent to the ex- istence of jurisdiction on the part of a judge. 885. Disqualification of judges on ac- count of interest. 886. Exemption of judges from ac- tions where they have aprimd facie jurisdiction, and no ob- jection is taken to their juris- diction. 887. Orders of commitment by county court judges. 888. Commitments for contempt. 889. Statutory forms of commitment by county court judges. 8go. Who are judges and judicial officers. 8gl. Delegation of judicial functions. 892. Removal of the proceedings of inferior courts for revision by a superior tribunal. 893. Proceedings against county court judges to compel them to act in particular cases. 894. Proceedings of courts-martial. Section II. — Of the duties and respon- sibilities of ministerial officers of courts of justice. 895. Illegal assumption of the judicial office by ministerial officers. 896. Neglect of duty by ministerial officers of courts of justice. 897. Duties and responsibilities of the sheriff and his officers — Execu- tion of writs. 898. Priority of writs of execution. 899. Trespasses by the sheriff snd his officeis. goo. Execution of writs by special bailiffs. goi. Trespasses in dwelling-houses by sheriffs and their officers under color of the execution of legal process. 902. Of the breaking open the outer door of a dwelling-house in the execution of legal process. 903. What amounts to a breaking of the outer door. 904'. Of the breaking open of inner doors in the execution of a writ. 905. Illegality of an arrest or seizure of goods effected through the medium of an act of trespass. 906. When the sheriff becomes a trespasser by remaining on premises an unreasonable time. 907. Seizure of the goods of the wrong person. 908. Seizure by sheriffs and thei Sec. I ] TRESPASS IN EXECUTION. 97 officers of privileged or pro- tected goods. 909 Power of the sheriff to compel rival claimants to interplead and establish their title. 910. Claims of landlords on sheriffs for rent in arrear. 911. Sale by sheriffs of goods taken in execution. 912. Capture of the wrong person. 913. Arrest of the right person under a wrong name. 914. Illegal arrest on Sundays. 915. Incurability of a wrongful im- prisonment — Arrest under one of several writs. 916. Arrest of privileged persons. 917. Countermand of writs and war- rants. 918. Liability of the sheriff for an escape. 919. Recapture upon fresh pur- suit. 920. Discharge of debtors taken in execution. 921. Arrest of the person and seizure of goods under void or irregu- lar process. 922. Exemption of sheriffs and others from responsibility when the injury has been brought about by the misrepresentation of the plaintiff. 923. False returns to writs of execu- tion. 924. Extortion by sheriffs and their officers. 925. Duties and responsibilities of the high bailiff, bailiffs, and regis- trars, of the county court. 926. Liability of ministerial officers where the court has no juris- diction and no authority to issue process. 927. Duty of bailiffs of the county court to satisfy the landlord's claim for rent. 928. Liabilities of jailers. 929. Liability of the messenger of the Court of Bankruptcy. II.-7 930. Actions 931. 933- 934- 935- 936. 937- Section III. — Of actions against judges sheriffs, and ministerial officers, and their assist- ants, and parties setting them in motion. against county court judges — Notice of action. Remedies against sheriffs and officers for an escape. 932. Actions to recover money in the hands of the sheriff. Actions against high bailiffs of county courts and their assist- ants. Statutory protection to high bailiffs, and persons acting by their order, or in their aid, in the execution of county court warrants. Of the staying of proceedings in actions against high bailiffs and officers of the coun.ty court. Plaintiffs in actions against sheriffs. Of the defendants in actions for wrongs done under color of legal process. 938. Declaration against a sheriff for not executing the Queen's writ, or for an escape. Declarations against sheriffs for removing goods taken in exe- cution without paying rent due to the landlord. Declarations again'^t sheriffs for treuie damages for extortion. The plea of not guilty. Pleas of justification. 943. Justification In the execution ot legal process. 944. Replications. 945. Evidence at the trial — Proof on the part of the plaintiff. 946. Proof of judgments, writs, and pro- cess from ,the superior courts. 947. Delivery of the writ to the "snenfi, to be executed. 948. Proof of the sheriff's having di rected or authorized the com- mission of the wrongful act. 939- 940. 941. 942. 98 THE LAW OF TORTS. [Ch. XIV. 949. 950. 951. 952. 953. Proof of false return to a writ. When admissions by an under- sheriff and bailiffs are evidence against the sheriff. Proof of the removal of goods taken in execution without paying the landlord's rent. Evidence of the process under vfhich the sheriff acted. Evidence for the defense — Proof of rent being in arrear at the time of the levy. 95 ^. Proof of proceedings in the county court. 955. Damages recoverable in actions against sheriffs and officers — Negligence and breach of duty. 956. Assessment of damages in ac- tions for an escape. 957. Special damages. 958. Exemplary damages. 959. Recovery of treble damages for extortion. SECTION I. OF TREPASSES IN EXECUTION OF VOID OR IRREGULAR PRO - CESS — RESPONSIBILITY OF JUDGES AND MINISTERIAL OFFICERS OF COURTS OF JUSTICE, AND PER- SONS SETTING THEM IN MOTION. 883. Exemption of judges from actions in respect of things done in the exercise of their judicial functions. — When the ex- ecutive power of the sovereign has been delegated to others, to be 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 judg»s 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) jior against a grand jur)rman 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 univer- sity 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 {a) Hamondv. Howell, i Mod. 184 ; 2 Mod. 219. {b) Kemp v. Neville, 10 C. B., N. S. 523 ; 31 Law J., C. P. 158. Sec. I.] TRESPASS IN EXECUTION. 99 the inquiry ; and if the exclusion of any particular person appears to him to be necessary or proper, it is for him to de- cide who is to be excluded. And if a person has by order of the coroner been forcibly turned out of a room when an in- quisition 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 shall never," observes Lord Holt, " be arraigned more than any other judges," {d) for if it should be allowed to make arbitrators defendants, and give them the trouble to defend their judgments and set forth the particular reasons upon which they founded their award, it would introduce very great inconvenience, and be a discouragement to any person to undertake a reference. If there is any palpable mis- take 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 favor the award is made to have it rectified, but not against the arbitrator, {e) Arbitra- tors, therefore, are not responsible in damages for their mis- takes 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 employer, and in determining charges to be made for extras, he can not be made responsible for mere errors of judgment in the dis- charge of the duties devolved upon him, but he may be sued for neglecting to exercise the functions he has undertaken to perform, and any undue bias under which he labors will in- validate 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 can not be pleaded to an action on the award, {k) Th general rule as regards judges and judicial officers is, that if they do any act beyond the (<:) Garnett v. Ferrand, 6 B. & C. 6ii. Re Hopper, L. R., 2 Q. B. 367. Pappa {d) Morris v. Reynolds, 2 Ld. Raym. v. Rose, L. R., 7 C. P. 32. 857. (,f)Kemp V. Rose, I Giff. 258. &« U) Ld. Hardwicke, Anon. 3 Atk. 644. Kimberly v. Dick, L. R., 13 Eq. Ca. i. {/) Wills V. Maccarmick, 2 Wils. 148. {h) Thorburn v. Barnes, L. R., a C. P, Tozer V. Child, 7 Ell. & Bl. 3S3. See 384. joo THE LAW OF TORTS. [Ch. XIV. limit of their authority causing injury to another, they there- by 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 re- ference to a matter before him, although it be spoken mali- ciously and without reasonable cause, and be irrelevant and not bona fide in the discharge of his duty as judge ; (_/' ) 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 conse- quences, {k)' Where parties are not acting as judges, but have only a discretion confided to them, an erroneous exercise of that dis- cretion, however plain the miscarriage may be, will not ren- der 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. ( /)' (0 Doswell V. Impey, i B. & C. 169. 289. M'Gregor v. Thwaites, 3 B. & C. Gahan v. Lafifitte, 5 Moore, P. P. C. 382. 24 ; post, ch. 17, s. I. {j) Scott V. Stansfield, L. R., 3 Ex. (/) Ferguson v. Kinnoul (Earl of), g 220. CI. & Fin. 290 ; and see Pedley v. Davis, {k) Lewis V. Levy, 27 Law J., Q. B. post, ch. 15, s. 1. ' So if a ministerial duty is attached to his office he will be liable for its wrong- ful execution, whether by fraud or mistake. Stone v. Graves, 8 Mo. 148 ; Tayloi V. Doremus, 16 N. J. 473. ° Officers of municipal corporations, or, indeed, any persons in whom the law has vested certain powers, and left their exercise to the discretion of such officers or persons, are not liable for injuries resulting therefrom, unless the acts are tiltra vires, or fraudulent, or corrupt. Wells v. Atlanta, 43 Ga. 67 ; Coulson v. Portland, Deady (U.S.), 481 ; Donahue v. New York, 3 Daly (N. Y.) 65. All acts involved in the necessary performance of a duty prescribed by a municipal ordinance are held to be strictly ministerial, and liability attaches for injuries resulting either from the willful or negligent execution of such acts ; Danbury, &c. R. R. Co. v. Norwalk, 37 Conn. 109 ; McCarthy v. Syracuse, 46 N. Y. 194 ; Lewenthal v. New York, 5 Lans. (N. Y.) 532 ; Williams v. Dunkirk, 3 Id. 44 ; but the decision as to whether 9r not an act shall be done, is purely judicial ; Donahue v. New York, ante. Sec. I.] TRESPASS IN EXECUTION. 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 Tenter- DEN, " ought to be." 884. Conditions precedent to the existence of jurisdiction on the part of a judge. — Every judge of a court of inferior juris- diction must have before him some cause of action, charge, or complaint, into which he has by law authority to inquire, or his proceedings will be extra-judicial, and he will be respon- sible 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 with- in the jurisdiction of the court ; and if they disclose a cause of action over which the court has no jurisdiction, the judge can not 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, {ni) 885. Disqrialijication of judges on account of interest. — In ac- cordance with the maxim, " Nemo debet esse judex in propria sua causa," it has been held, that whenever it appears that the judge is a party to a suit the judgment is erroneous, {n) If, therefore, he has any private or pecuniary interest in the sub- ject-matter of the suit, he can not adjudicate upon it. {0) Such interest, however, must be direct and certain, and not merely remote or contingent. Where, therefore, at the time of tak- ing 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. {j>) (?«) Hopper, In re, 32 Law J., Q. B. Co., 3 H. L. C. 75g. Reg v. Aberdeen ro4. Canal Co , 14 Q. B. 866. Kemp v. Rose, («) London (City of) v. Wood, 12 Mod. supra. Seeposi, " Interested Justices." 688. (p) Reg. V. Manchester and Sheffield (a) Dimes v. Grand Junction Canal Rail., L. R., 2 Q. B. 336. The case waa I02 THE LAW OF TORTS. [Ch. XIV. 886, Exemption of judges from actions where they have a prima facie jurisdictiofi, and no objection is taken to their juris- diction. — A judge of a court of record in England with limited iurjsdiction is not responsible in damages for the conse- quences of his acts and proceedings in respect of matters over which he had no jurisdiction, if he had a prima facie ju- risdiction 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 shonld be intended to know where the cause of action arose ; b lit not against the judge or officer who had 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 plain- tiff, (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 ot the borough, {f) ' decided under s. 39 of the Lands Clauses Reg. v. 'Kxa&,p05t, ch. 15, s. i. Act, but it was considered that the (q\ Olliet v. Bessey, 2 W. Jones, 214. words "interested in the matter in dis- (r) Gwynn v. Poole, Lutw. App. 1566. pute," used in that section, were merely Calder v. Halkett, 3 Moore, P. C. C. 77, declaratory of the common law. See Taaffe v. Dewnes, Id. 36, n. ' In this country, the rule adopted by the English courts in reference to the lia- bility of judges and judicial officers, has generally been adopted, and the rule can not be said to be of doubtful policy. Individual instances now and then occur when it would seem that the ends of justice would be well served if some hot- headed or wrong-headed judge, who has, by an arbitrary exercise of the duties of his office, involved a party in proceedings before him in a position of great bard- ship, could be made to respond in damages therefor ; but, while this might be the case in special instances, yet these individual cases pale into insignificance before the general disaster and disorder that would result if a judge were to be constantly involved in litigation because ot his judicial action. If such were the rule, very few lawyers would have the temerity to accept judicial positions, and, as was well said by Lord Stair, in La Caux v. Eden, Doug. 594, "nobody but fools or knaves could be found to accept the office of judge." No instance is to be found in which, in the courts of this country, a judge or judicial officer has been held amenable for Sec. I.] TRESPASS IN EXECUTION. 103 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 jurisdic- tion, 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 pretense for it, and give judgment against the defendant, all the members of the court present, and taking part in the judgment, may render themselves liable to an action, {t) A county court judge is not ousted of his jurisdiction by a notice of a bona 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 (s) Houlden v. Smith, 14 Q. B. 852. the land, &c., in dispute exceeds £20 ; (t) Wingate v. Waite, 6 M. & W. 746. 30 & 31 Vict. u. 142, ss. n, 12. («) /. e., where the rent or the value of an erroneous judgment or act in a case over which he had jurisdiction. Whether, if a judge acts iiialiciously and corruptly, an action would lie, may perhaps be an open question ; Randall v. Brigham, 7 Wall. (U. S.) 253 ; but I imagine that even if the rule was to be relaxed to that extent, that the proof of malice or corruption would have to be direct and positive, and not left to inference or presumption. The remedy against a judicial officer for malfeasance in office, is by impeachment, and the remedy against his oppressive acts is found by appeal. Morrison v. McDonald, 21 Me. 550 ; Brodie v. Rutledge, 2 Bay. (S. C.) 69 ; Yates v. Lansing, 5 Johns. (N. Y.) 282 ; Ambler v. Church, I Root (Conn.) 211 ; Upshaw v. Oliver, Dudley (Ga.) 241 ; Rap V. Rittenhouse, 2 Dall. (U. S.) 160 ; Moor v. Ames, 3 Caine's Cas. (N. Y.) 170; Wood V. Ruland, 10 Mo. 143 ; Hamilton v. Williams, 26 Ala. 527 ; Way V. Tovvns'end, 4 Allen (Mass.) 114 ; Little v. Moore, 4 N. J. 74 ; Taylor v.. Doremus, 16 Id. 473 ; Phelps v. Sill, i Day (Conn.) 315 ; Tompkins v. Sands, 8 Wend. (N. Y.) 468 ; Ely v. Thompson, 3 A. K. Marsh. (Ky.) 76 ; Evans v. Foster, I N. H. 374 ; Carter v. Dow, 16 Wis. 298 ; Lenox v. Grant, 8 Mo. 254 ; Stone v. Graves, 8 Id. 148 ; Maguire v. Hughes, 13 La. Ann. 2S1 ; Burnham v. Stevens, 33 N. H. 247 ; Vanderheyden v. Young, II Johns. (N. Y.) 150 ; Bailey v. Wiggins, 5 Harr. (Del.) 462 ; Reid v. Hood, 2 N. & M. (S. C.) 168 ; Young v. Herbert, 2 Id. ; Glu- veclce V. Tijiriner, 24 Tex. 663. 104 THE LA W OF TORTS. [Ch. XIV. appears that the tenant has been actually turned out of pos- session by a third party, claiming by title paramount, a ques- tion of title arises ; but this is not the case if it appears that the tenant voluntarily gave up possession to such third par- ty- W 887. Orders of commitment by 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. (7) But if he had no jurisdiction in the matter, and the order or warrant of commitment is put in force, he is liable to an action for false imprisonment, if the facts depriving him of his jurisdic- tion were brought to his knowledge. 888. Commitments for contempt. {£) — 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 par- ticular 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, («) e. g., the publication of a petition for winding up a public company before the hearing. (3) When the committal is by way of punishment, it ought to be certain as a sentence, and the term of imprisonment should be specified, (t:) The court can not for contempt suspend a barrister from practising, if the contempt be not in his char- acter as barrister, but as suitor, for the proper punishment for contempt of court is fine and imprisonment, {d) The court can not delegate to a single judge the power of issuing a warrant for the apprehension and committal of the person in contempt. (^) A superior court may adjudge a man to be ix) Emery v. Barnett, 4 C. B., N. S. 3 P. C. Ca. 268. 431 ; 27 Law J., C. P. 216. (a) Daw v. Eley, I.. R., 7 Eq. Ca. 49. (j) Hamond v. Howell, i Mod. 184. \b) Re Cheltenham, &c., Carriage and (2) See post, ch. 15, ». i. As to com- Waggon Co., 38 Law J., Ch. 330 ; L. R. mitments by legislative assemblies, see 8 Eq. Ca. 580. Doyle V. Falconer, L. R., i P. C. Ca. (nging to the debtor, he is bound to keep it at all hazards, and, if he leaves it in the custody of the debtor, and it is sold by the debtor, or if it is attached at the suit of another person, or if by any lack of care on his part it is damaged or lost, he is b'ahle therefor to the attaching creditor to the extent of the judgment obtained by him, and to the debtor, for the balance of its value. He is bound to take such steps to insure the safety of the property, as a careful, prudent man would take of his own, in view of the kind, character and situation of the property, and for any failure in this respect, he is liable both to the attaching creditor and the debtor. Moore v. Westervelt, 27 N. Y. 234; Hartlieb v. McLane, 44 Penn. St. 510; Jenner V. JoUiffe, 9 Johns. (N. Y.) 381 ; Conover v. Gatewood, -j. A. K. Marsh. (Ky.) 568. And the fact that a statute provides that the property may be attached by leaving a copy in the town clerk's office, does not exonerate him for its loss. He is bound to keep the property, even though its attachment is allowed to be made without an actual removal. Fay v. Munson, 40 Vt. 468 ; Whitney v. Farrar, 51 Me. 418. Thus, if goods in the process of manufacture are attached, which will be seri- ously injured or impaired in value if not manufactured at once, he is bound to have their manufacture completed. So if grain in the straw is attached, if necessary to its preservation, he is bound to have it threshed. Briggs v. Taylor, 35 Vt. 57. And he is entitled to charge these expenses to the attaching creditor, and to deduct them from the amount received for the property on final sale. Twdmbly v. Hunnewell, 2 Me. 221. So far as the attaching creditor is concerned, the sheriff is bound to keep the property at all hazards except against the act of God or the king's ene- mies, so a.s to have it forthcoming on the execution, and in a case where the shetiff levied upon goods sufficient to pay the plaintiff's debt, and a part of them were stolen between the levy and sale so that there was a deficiency, he was held liable therefor. liartleib v. McLane, ante. So, if the goods are lost by fire, he is liable, and it is his duty to insure them for his own protection, and the protection of the cred- itor, and he can charge the expense of insurance to the plaintiff. White v. Madi- son, 26 N. Y. 117. The sheriff, when a process is left in his hands calling for the arrest of the debtor, is bound to use reasonable diligence to secure his arrest. He i Sec. II.] DUTIES OF OFFICERS. 113 fi. fa. he must endeavor to ascertain what goods the execution debtor possesses within his bailiwick and seize them, (c) and sell them to the best advantage, (d) If he sells 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 suffice to satisfy the execution, poundage, and expenses, he will be responsible in damages to the party damnified. (^)' {c) See post. (e) Gawler v. Chaplin, 2 Exch. 506. (rf) Pitcher v. King, 5 Q. B. 767. Mullet v. Challis, 16 Q. B. 239. not liable absolutely for a failure to arrest, although the defendant was in his juris- diction at the time, if he used reasonable diligence in that respect, but failed to find the debtor. Thus, in a case where a bail process was left with the sheriff, and he went out with it to find the debtor, and while he was gone the debtor came to his office, and not finding the sheriff, took the cars and left, it was held that the sheriff could not be charged with negligence, and was not liable for a failure to arrest ; Erwin v. Scott, 15 Rich. (S. C.) 12 ; but when a writ is placed in the sheriff's liands against the body of a defendant, whether at night-fall or at any other time, and he is told that the defendant is in a certain place and intends to abscond, he is liable if he neglects to make a reasonable search for the defendant, whereby he escapes arrest. Phillips v. Ronald, 3 Bush (Ky.) 244. So, when be has arrested the debtor, he is bound to keep him safely, and if he suffers him to go at large and he escapes, he is liable absolutely for the debt, and he can not set up the insolvency of tiie debtor in defense, nor can he set up irregularity in the process or judgment. Ben- sel V. Lynch, 44 N. Y. 162. A sheriff is bound to serve a process left with him, andean not refuse to do so be cause in his opinion it is irregular. Roth v. Duvall, I Idaho Ten 167. ' A sheriff is bound to exercise due diligence in levying upon the property of an execution debtor, and if, after the execution is placed in his hands, by reason of his neglect or delay in making a levy, the debt is lost, he is liable therefor. Lowe v. Ownley, 49 Mo. 71; Kimbro v. Edmonson, 46 Ga. 130 ;- French v. Snyder, 30 111. 339; White V.Wilcox, I Conn. 347 ; Murray v. Troutman, 5 Jones (N. C.) 379; Noble v. Whet- stone, 45 Ala. 361 ; Blivens v. Johnson, 40 Ga. 297. And he is bound to levy upon enough property to satisfy the execution, if the debtor has it, and for a failure to do so, he can not show that he had reasonable grounds to believe, or that he actually did believe, that he had seized enough. He is bound in this respect to exercise such dili- gence as prudent men use in the management of their own affairs, and should make proper allowance for the depreciation of property, and the expense of keeping ithtlyite.'o. the time of levy and the sale. French v. Snyder, ante. The bankruptcy of an execu- tion debtor will not excuse the sheriff from making a levy ; Noble v.Whetstone, 45 Ala. 361 ; Holmes v. Dunn, 13 La. Ann. 153 ; nor the fact that he believed the property to be exempt from attachment. If he has a reasonable doubt as to the title to the property or its liability to levy, he may demand indemnity, and if he fails to do so, hs will be liable unless he can show that in fact the property was exempt from levy, or that it belonged to another person. Ronnell v. Bowman, 53 111. 460. A sheriff is only bound to exercise due diligence to find the debtor's property. Even though the debtor has property, and the sheriff fails to find it, yet if he has exercised reasonable diligence to fijid ii and has failed to do so, he will not be liable, and the II.— 8 114 THE LAW OF TORTS. [Cil. XIV. There is no duty or obligation 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 execu- tion of writs, both from the danger there is of fraud and col- lusion with defendants, 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 Westminister the 2nd, c. 39. {g) The law is tender also of the liberties and interests of the subject, and requires the presence of the (/) Dyke v. Duke, 4 B. N. C. 203. (g) Howden v. Standish, 6 C. B. 520. question as to whether he has exercised due diligence, is for the jury. Lowe v. Ownley, 49 Mo. 71. The creditor is not bound to give any instructions to the sheriff, but if he does, and the sheriff follows them, he is relieved ft-om liability. But in order to have that effeet, the instructions must be followed substantially ; if there is any material deviation therefrom, they will not operate as a protection. Ross v. Cave, 49 Mo. 129 ; Hammond v. Root, 15 Gray (Mass.) 516 , Abbott v. Jacobs, 49 Me. 319 ; Ranlett,v. Blodgett, 17 N. H. 298 ; Bacon v. Fitch, Kirby (Conn.) 373 ; Barnard v. Ward, 91 Mass. 269. If the creditor intermeddles with the execution, or undertakes to give instructions to the officer, the officer is relieved from liability. Thus, where a creditor directed the sheriff to conduct in the most advantageous manner possible, and with as little expense, and he could not make service before the return day expired, it was held that he was not liable for not returning the exe- cution within its life. Bacon v. Fitch, ante ; Shannon v. Clark, 3 Dana (Ky.) 152. So, where he was directed to do the best he could, if no damage actually results. Walker v. Haskett, 11 Mass. 177. A sheriff is bound to return an execution within its life, and upon failure to do so, the law presumes the debt to be lost, and prima facie tlie execution creditor is entitled to recover of him the full amount of the debt, and the burden is upon the sheriff to show that the debtor had no property upon which the execution could have been levied. Dunphy v. Whipple, 25 Mich. 10, And the fact that the execution was returnicd within a few days after it expired, is no defense. Brookfield v. Remsen, I Abb. (N. Y. Ct. App.) 210. And, whether the money could have been made upon the execution or not, the sheriff is liable for nominal damages. Keith v. Com., 5 J. J. Marsh. (Ky.) 359 ; Laflin v. Willard, l5 Pick. (Mass.) 64 ; Runlett v. Bell, 5 N. H. 433. And the burden is upon the sheriff to show that the debtor had no property upon which a levy could be made. Dunphy V. Whipple, ante. And he can not screen himself from liability upon the ground that the execution debtor and creditor had agreed to suspend the levy, unless the execution creditor notifies him of the fact. Derby Bank v. London, 2 Conn. 417. Nor can he question the regularity of the execution. Ford v. Treasurer, I N. & M. (S. C.) 234 ; Adams v. Balch, 5 Me. 188. But if the process is void on its face, ho will be excused from serving it. Baal v. King, 6 Ham. (Ohio) 11. ' Ross V. Cave, 49 Mo. 129 ; Barnard \, Ward, 9 Mass. 269 ; Abbott V Jacobs 49 Me. 319 ; Runlett v. Blodgett, 17 N. H. 298. Sec. II.] DUTIES OF OFFICERS. 115 responsible officer to control the execution of the writ. If, therefore, an arrest is made under a ca. sa. by a bailiff to to whom the warrant is not addressed, in the absence of the officer 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 im- posed upon him terms prohibiting him from bringing an action, (h) Where a gentleman who had obtained a warrant directed to a sheriff's officer to arrest his debtor, struck out the officer's name and inserted his own in its stead, and the gentleman was shot by the debtor whilst he was endeavor- ing 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) 898. 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 counter, manded ; in which case the writ, whilst the countermand continues, must be considered as not delivered at all to be executed, because the sheriff can not 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 of the execution of the writ is equivalent to its withdrawal, and it is not until the sheriff receives no- tice of withdrawal of the countermand, and an order to pro- ceed, that the writ is considei-ed to have been again delivered to him to be executed. (^) ' (h) Rhodes v. Hull, 26 Law J., Exch. {i) Kenyon, C.J., Housin v. Barrow, 6 265. Gregory v. Cotterell, 5 Ell. & Bl. T. R. 123. 571. (k) Hunt V. Hooper, 12 M. & W. 672. ' When two or more executions are delivered to a sheriff at the same time, esch is to share /ra rata the avails of the levy, in the absence of any instructions or agree- ment to the contrary. But wiien several executions against the same party are given to the sheriff at different times, the executions first received are to be first satisfied, in the order in which they are received. Jones v. Edmunds, 3 Murph. ii6 THE LAW OF TORTS. [Ch. XIV. 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 subse- quent execution. (/) ' 899. Trespasses by the sheriff and his officers. — The high- sheriff may be responsible for the acts of the under-sheriff in the execution of the duties of his office, as he is the general officer of the sheriff; but the bailiff is not the general officer 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 xs granted him he becomes the special officer of the sheriff for the execution of the particular warrant, and the sheriff is re- (/) Imray v. Magnay, 11 M. & W. 275. (N. C.) 43 ; Rogers v. Edmunds, 6 N. H. 70 ; Ex parte Stagg, I N. & M. (S. C.) 405 ; Brown v. Clark, 4 How. (U. S.) 4 ; Ulrich v. Dreyer, 2 Watts (Penn.) 303 ; Childs V. Dilwoith, 44 Penn. St. 123 ; Arberry v. Noland, 2 J. J. Marsh. (Ky.) 421 ; unless there has been an attachment of the same property upon mesne process, ia which case the executions are to be satisfied according to the order of the attach- ments, if they were regularly issued within the time prescribed by law, so as to pre- serve the lien created by attachment. State Bank v. Etter, 15 Ark. 268 ; Bliss v. Stevens, 4 Vt. 88 ; Gary v. Gregg, 3 Stew. (Ala.) 433 ; Bayley v. French, 2 Pick. (Mass.) 586. But in those states where, by virtue of special statutes, a judgment operates as a lien upon the judgment debtor's property, the precedence is given to the oldest judgment. McFee v. Harris, 25 Penn. St. 102 ; Jennings v. Dennis, 14 Miss. 379. Otherwise, as between the execution creditors, the precedence is given to the execution under which levy is first made. Arberry v. Noland, 2 J. J. Marsh. (Ky.) 421 ; McCall v. Trenor, 4 Blackf. (Ind.) 4g6 ; Lash v. Gibson, I Murph. (N, C.) 266. But the sheriff will be liable to the creditor in the execution first received, if he levies under a later execution and pays over the avails to the creditor in such execution ; Rogers v. Edmonds, ante ; except where executions against >• partner- ship and executions against individual members of the firm are levied upon partner- ship property, in which case, the executions against the firm are to be first paid, without any reference to the time when they were received by him. Coover's Appeal, 2g Penn. St. I. ' The withdrawal of a prior execution from the hands of a sheriff, or its satis- faction by payment, removes the lien created by it upon the goods levied upon under it, and the next execution in order attaches and takes the benefit of the lien so removed. Leach v. Pine, 41 111. 66. And the same rule prevails where for any cause the prior execution is set aside, unless the action upon which it was predicated is still pending, and a lien upon the property had been acquired by attachment upon the original writ, in which case the lien is not lost by the setting aside of the execution, unless the action itself is abated. Benjamin v. Smith, 12 Wend. (N. Y.) 404 ; Steiher v. Haye, i Cranch (U. S. C. C.) 40 ; Parker v. Dennie, 6 Pick. (Mass.) 227 ; Wilson v. Hensley, 4 Ired. (N. C.) 66. Sec. II.] DUTIES OF OFFICERS. 117 sponsible 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. (;«) ' 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 mis- feasance of the officer, it is no answsr 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 fi. fa. issues his warrant to his officer, directing 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 sheriff will be responsible in damages for the mistake, although the sheriff never directed or authorized him to make the arrest, {0) the case of a sheriff differing in this respect from the liability of an ordinary principal for the acts of an agent who does not pursue the authority committed to him. ^ (ff«) Littledale, J., Crowder v. Long, 8 {o) Smart v. Hutton, 8 Ad. & E. 568. n. B. & C. 605. Drake v. Sykes, 7 T. R. Raphael v. Goodman, Id. 565. Gregory 116. V. Cotterell, 5 Ell. & Bl. 586; 25 Law (») Smith V. Pritchard, 8 C. B. 5S8. J., Q. B. 38. ' The sheriff is the principal, and his deputies are his agents for the discharge of the duties of his office committed to them, and as such he is liable for all their laches, defaults, or miscarriages. And, if the sheriff dies, the powers of his deputies die with him, and they cease to be deputies from that time. Jackson v. Collins, 3 Cow. (N. Y.) 89 ; Paddock v. Cameron, 8 Id. 212 ; unless provision is made by statute for a continuance of their powers. Paddock v. Cameron, ante. ' The sheriff is liable for all misdoings of his deputy that pertain to the dis- charge of the duties of his office, and in law, is treated as having directed the doing of all acts done, that pertain to the discharge of such duties. Seaver v. Pierce, 42 Vt. 325 ; Norton v. Nye, 56 Me. 211 ; Morse v. Betlon, 2 N. H. 184 ; Smith v. Joiner, D. Chipp. (Vt.) 62 ; Tobey v. Leonard, 15 Mass. 200 ; Knowlton v. Bart- lett, I PicK. (Mass.) 271 ; Stinson v. Pierce, 42 Vt. 334. But not for personal torts, although committed in the discharge of his duties. Smith v. Joiner, ante. Nor for contracts made by his deputy as such. Whetherbee v. Foster, 5 Vt. 136. ' In law, the sheriff and his deputy are treated as one person, and the principal is liable civiliter for all the acts of his deputies that come strictly within their powers as such. Campbell v. Phelps, 17 Mass. 244. And the act of the deputy, is treated as the act of the sheriff himself, therefore trespass vi et armis lies against the sheriff for an act done by his deputy for which trespass would have lain if the act had been done by the sheriff himself. Com. v. Kennard, 8 Pick. (Mass.) 133; Campbell v. Phelps, a;«/^/ James v. McCubbiii 2 Call (Va.) 273. So case fof ii8 THE LAW OF TORTS. [Ch. XIV. But if the officer derives his authority for what he does from some third party, and not from the sheriff, (/) 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 ex- ecution debtor arrested under a ca. sa. pays the debt and costs to the sheriff's officer to obtain his 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 officer 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) ' 900. Execution of writs by special bailiffs. — 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 riot then liable for the acfs of the officer so appointed, (f) 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 {p) Cook V. Palmer, 6 B. & C. 742, Doe v. Trye, 7 So. 704 ; 5 B. N. C. 573. (q) Woods V. Finnis, 7 Exch. 372. {s) Alderson v. Davenport, 13 M. & W. (r) Ford v. Leche, 6 Ad. & E. 706. 42. Corbet v. Brown, 6 Dowl. 794. negligence, or misfeasance, or malfeasance on the part of the deputy. Green v. Lowell, 3 Me. 373 ; Williams College v. Balch, 8 Me. 74 ; Waterhouse v. Waite, II Mass. 207 ; but only so far as they pertain to the ordinary course of his official duty. He is not responsible for a departure from the ordinary powers incident to the office. Gorham v. Gale, 7 Cow. (N. Y.) 739. ' But if the officer, in the discharge of his duty as such, is entitled to receive the money thereon, the sheriff is Uable to the execution creditor therefor ; Williams College V. Balch, 9 Me. 74 ; Evans v. Hayes, I Miss. 697 ; Walden v. Davison, 15 Wend. (N. Y.) 575 ; but in order to charge the sheriff, the relations of the deputy to the process must be such that a payment of the money to him, operates as a dis- charge of the cause of action, and estops the plaintiff from pursuing the debtor therefor further. Boyce v. Young, 3 H. & M. (Md.) 84. Sec. II.] DUTIES OF OFFICERS. 119 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 responsibility as to matters in which the debtor has not interfered, (f) ' 901. Trespasses in dwelling-houses by sheriffs and their offi- cers under color of the execution of legal process. — If a sheriff by lifting the latch of the outer door of a dwelling-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, (a) 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 pursuit after an escape. The house in which the execu- tion debtor resides, i.e., where he sleeps, may be considered to be his own house, although he is not the proprietor there- of, but only a lodger or visitor. " I see no difference," observes Lord Loughborough, " between a house of which the execution debtor is solely possessed, and a house in which he resides by the consent of another." (7) 902. Of the breaking open the outer door of a dwelling-house in the execution of legal process. — In Semayne's case {z) it was resolved — " i. That the house of every man is to him as his castle and fortress, as well for his defense 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 * pos- {t) Wright V. Child. L. R., i Exch. (x) Ratcliffe v. Burton, 3 B. & P. 229. 358, Johnson v. Leigh, 6 Taunt. 245. (a) Morrish v. Murray, 13 M. & W. {y) Sheers v. Broolcs, 2 H. Bl. 122. 57. ' (z) 5 Co. 91. ' Stephenson v. Hillhouse, Harper (S. C.) 23 ; Allen v. Smith, 7 Halst. (N. J.) 159. If the sheriff at the request of the plaintiff specially deputes a person to serve it, he will be relieved from all liability. But if he, for his own convenience, gives it to a special deputy, he will be liable for all laches or miscarriages, the sama as though he had served the process himself. 120 THE LAW OF TORTS. [Ch. XIV sessionem; ' 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 can not 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 sub- ject, 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 rnade), 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 anyone 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 therefore, 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, {b) 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 in breaking open the o i.er door to get out again, if the door is locked and there is no one within who will open the door, {d) (a) Semayne's Case, i Smith's L. C, {c) Aga Kurboolie Mahomed, 4 Moore 6th ed., p. 88. P. C. C. 239. (p) renton v. Browne, i Sid. 186. (1^) Pugh v. Griffith, 7 Ad. & E, 827. Sec. II.] DUTIES OF OFFICERS. 121 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 officer 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 ad- mission, (^g) ' (?) Anon., 7 Mod. 8. Sandon v. Jer- (/) Lloyd v. Sandilands, 8 Taunt, vis, E. B. & E. 935 ; 28 Law J., Exch. 250. 156. {g) Anon., Lofft, 390. ' It will be seen by the cases referred to by the author, that the dwelling-house _ of a person is so far " his castle," that an officer with a warrant for the apprehen- sion of the owner or any member of his family, or to attach or levy upon his goods, has no right to enter the house by force. At the same time, it will be seen that the occupant must not expose himself to arrest by the sheriff, by placing himself in a position where he can be so actually arrested by him without an actual breaking o£ the house, or an invasion of its privileges as a castle. But, the question arises whether, if the door be closed, and the debtor is not within reach of the officer although within sight, and the window be open, the sheriff would be justified in entering by the window to arrest him? The cases referred to by the author, of an actual manual arrest through an open window, without an actual entry, have car- ried the rule further than seems to be warranted by principle. The doctrine of those cases seems to proceed upon the ground that, if the occupant of the house places himself in a position where he can be arrested by the sheriff from the out- side, without an actual entry into the house, the sheriff may then, if necessary, break into the house, unless the debtor will go out to the sheriff, or open the door after demand made, upon the ground that his refusal to go operates as an escape. But in view of some American cases, it is perhaps doubtful whether this doctrine would be held by our courts. There can be no doubt that the sheriff may lawfully enter the house by the ordinary and usual modes of entry, if he can do so peaceably, without force, strategy, or fraud, but he can not enter by any other mode, even though an opportunity is presented. The mere fact that a window-pane is broken, or the window itself is left open, does not amount to a license to any person to enter the house by that mode, and such an entry would be unlawful, and a trespass. If then, the sheriff can not Lawfully enter the house through the window in the first instance, how can he lawfully make an arrest by putting his hand through it? Is not the one, in la«', as much a trespass as the other ? If so, he could not lawfully pursue the arrest by breaking into the house, for the arrest was unlawful and void, for an arrest or an attachment of goods made by a forcible or unlawful entry into one's dwelling house, is void. This question was directly passed upon in the case of Ilslev V. Nichols, 12 Pick. (Mass.) 269. In that case the defendant Nichols, who was a deputy sheriff, broke the outer door of the plaintiff's house, against his will and contrai-y to his express prohibition, and attached certain goods of the plaintiP 122 THE LA W OF TORTS. [Ch. XI Y. 903. What amounts to a breaking of the outer door. — If the sheriff, or his officer, opens the outer door of a house by lift- ing the latch, or drawing back a sliding bar, in the ordinary found there. It appeared that the plaintiff had failed, and shut himself up in his dwelling-house with the goods, intending to dispose of them as he should think just, among his creditors. The plaintiff, insisting that the attachment was invalid, and that the sheriff's possession of them obtained in that way wa? unlawful, brought an action of trespass against him for the breaking of his dwelling and the carrying away of the goods. The supreme court, in passing upon the question, held that the entry being illegal, no valid attachment of the goods could be made by the defendant, and that the plaintiff, in addition to the damages for the wrongful breaking of the house, was entitled to recover the value of the goods taken. Chief Justice Shaw in delivering the opinion of the court, among other things said, " It is remarkable that, upon a question of such frequent recurrence in practice, and al so much importance in the service of civil process and the powers and duties of officers therein, no direct judicial authority is to be found. The circumstances to be taken into consideration are, that the. goods were in a dwelling-house, and were attached in consequence of the house being broken open by forcing the outer door ; that the direct and avowed purpose of breaking open the house, was to make an attachment, and that this was done againbt the will, and contrary to the express pro- hibition of the plaintiff. " It is clear from all the authorities, and wholly undisputed as a rule of law, thai the act of thus breaking the outer door of a dwelling-hotise is unlawful. The goods were attached in pursuance of a previous design, and through the medium of this unlawful act, and could not have been otherwise attached, and the question is, whether the attachment was valid, and constituted a legal lien upon the goods. Were it not for some very respectable authorities, it would seem from a mere state- ment of the question, that it must be decided in the negative. In Bacon's Abr., and by other respectable compilers, it is stated that, on a capias or fi. fa. the sheriff is not authorized to break the outer door of a dwelling-house, though the execution •would be good" (Bac. Abr. Sheriff, n. 3), and the learned judge proceeds to review the cases in which the same dicta appeared, viz. : Year Book, 18 Ed. 4, £ 4 ; Semayne's case, 5 Coke, 93 ; Lee v. Gansell, i Cowp. i ; Heminway v. Saxton, 3 Mass. 222, and Widgery v. Haskell, 5 Mass. 155 ; and he adds, " From a review of the cases it seems never to have been judicially determined, that an attachment on mesne process or fieri facias, where the possession is obtained by unlawful means, would be valid and effectual to give the sheriff or the creditor a legal right to hold the property. But on the other hand there are many cases, quite analogous in principle, which seem strongly to support the contrary doctrine. There are many cases where arrests on civil process are held to be unlawful and void, in con- sequence of the unlawful means used to place the party in a situation to be arrested, or where he has been unlawfully detained until he could be lawfully arrested, or other unlawful means used to obtain the custody of the person. These authorities go directly to support the broad position laid down by Lord Holt who, after stating that if a man is wrongfully brought into a jurisdiction and there lawfully arrested, he ought to be discharged, adds, ^* for no lawfiU thing, founded upon a wrongful act, can be supported." Suttin v. Bevin, i Mod. 50. " A distinction was taken at the bar, between an arrest made by means of breaking a man's castle, and an attachment of goods made by the same meansi Sec. II.] DUTIES OF OFFICERS. 123 way in which persons going into the house open the door, this is not a breaking of the door. " As to the passage," ob- serves Pollock, 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." (Jt) ' (/<) Ryan v. Shilcock, 7 Exch. 77 ; 21 Law J., Exch. 58. upon the ground that the privilege of inviolability given by law to the dwelling- house, is designed exclusively for his person and that of his family and inmates.'' The learned judge proceeded to combat this doctrine, and show by a number of authorities, that an artest unlawfully effected is void. He then proceeds : " The cases seem to establish the general principle, that a valid and lawful act can not be accomplished by any unlawful means ; and whenever such unlawful means are used, the law will interpose and afford some suitable remedy, according to the nature oi the-case, to restore the party injured by these unlawful means, to his rights." See also Boggs v. Vandyke, 3 Harr. (Del.) 2S8 ; Curtis v. Hubbard, 4 Hill (N. Y.) 437 ; Oystead v. Shed, 13 Mass. 522. The bare raising of the latch of the door, is treated as such force as renders the entry unlawful ; Curtis v. Hubbard, ante ; or the use of artifice or fraud, whereby an entry is effected. In Park v. Evans, Hob. 62a, the defendant was an under sheriff, and having a civil process against one Porter, who lay in the house of the plaintiffs, he went to the plaintiffs' door and knocked, and the wife of one of the plaintiffs opened it a little to see who was there, when the defendant and his assistants at once rushed into the house and broke open the chamber door where Porter was. The entry was held unlawful, and the defendants were fined ,1^200 each, upon the ground that it was effected by craft, and was forcible. In Higgins v. Andrews, 2 RoUe, 55, an entry through an open door, without the license or consent of the owner, was held unlawful. In Taylor v. Fisher, Cro. Eliz. 246, an entry through the open door of the plaintiff's dwelling to take away the defendant's property, although done with the consent of the plaintiff's wife, was held a trespass. Indeed it may be said that any entry into the house of another, •without a license from the occupant, express or implied, is a trespass. Brown v. Perkins, i Allen (Mass.) 89 ; Adams v. Freeman, 12 Johns. (N. Y.)4o8 ; Bro. Tresp. pi. 430 ; Nichols v. Sanford, 13 Mass. 286 ; Oystead v. Shed, 13 Id. 520 ; Stedman V. Crane, II Met. (Mass.) 295 ; Hooker v. Smith, 19 Vt. 151 ; State v. Patterson, 45 Vt. 308 ; People v. Hubbard, 24 Wend. (N. Y.) 369 ; and it would seem, that an arrest effected by an officer by putting his hand through a broken window-pane, or by an entry through an open window, is unlawful, and, upon principle, void. It is clearly an entry into the dwelling of another, without a license, express or implied, and according to the doctrine announced in Ilsey v. Nichols, ante, is clearly void. Arrests have been held unlawful, as well as the service of process, when effected by unlawful means. Thus where a person by strategy or fraud has been inveigled from another jurisdiction ; Goulpil v. Simonson, 3 Abb. (N. Y.) Pr. 474 , or has been confined to enable a party to get out a writ ; Barlow v. Hall, 2 Ansthr. 42 ; or has been arrested upon a void process and held until a valid one could be issued ; Loveridge v. Plaistow, 2 H. Bl. 29 ; Ex Parte Wilson, i kx\. 152 ; or has been detained by force until an officer could be obtained ; Burch v. Prodger, 4 B. & P. 135 ; Lyford v. Tyrell, 2 Ansthr. 85 ; Wells v. Curney, 8 B. & C. 7(^9- ' The rule is otherwise in this countiy, and the raising of a latch, or any entry 124 THE LAW OF TORTS. [Ch. XIV. 904. 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 be- fore he breaks them in order to take goods under a fi. 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. (/) ' (j) Lee V. Gansell, I Cowp. I ; Lofft, Lloyd v. Sandilands, 2 Moore, 210 374. (/) Rex V. Backhouse, Lofft, 61. (k) Hutchison v. Birch, 4 Taunt. 618. which does not have relation to a license, express or implied, is unlawful. Brown V. Perkins, i Allen (Mass.) 89 ; Curtis v. Hubbard, i Hill (N. Y.) 336. In Curtis v. Hubbard, ante, Cowen, J., in delivering the opinion of the court, said: " The point is made, tliat the mere lifting of the latch is not such a forcible breaking as tlie law forbids to a sheriff who holds civil process. . . . The rule is clearly otherwise. It is enough that the outer door be shut ; then, merely opening it, is a breaking within the meaning of the law." Haggerty v. Wilber, 16 Johns. 288 ; Penton v. Brown, Keb. 698 ; Seymour v. Gresham, Cro. Eliz. 908 ; Ratcliffe 1. Burton, 3 B. & P. 223 ; Buckingham v. Francis, 11 Moore, 40. ' It often becomes important to know what constitutes an outer or an inner door within the meaning of the rule. It may be said that where a building is occupied by one family, which has the general charge and supervision of the whole house although some of the rooms are let out to lodgers, the doors of the rooms of the lodgers, as well as tliose to rooms occupied by members of the family, are inner doors ; Lee v. Gansell, i Cowp. i ; but when the same house is let to different families, although they have a common entrance, and a common outer door, yet if they each occupy a distinct part of the house, and distinct rooms, and each has exclusive control over the part of the house so occupied by him, an entry through the common outer door, will not justify a breaking of the doors of the rooms occu- pied by either family ; Stedman v. Crane, 11 Met. (Mass.) 295 ; Swain v. Minzer, 4 Gray (Mass.) 182. They are treated as outer doors, unless the control is joint. Stedman v. Crane, ante. Nelson, C. J., in Swain v. Minzer, ante, laid down the rule, in his charge to the jury, thus, " that if the plaintiff had proved to their entire satisfaction that he had the rightful and exclusive control and possession of a portion of the house, and had also forbidden and endeavored to prevent the entrance of the defendant, then the defendant would have no right violently to break and enter igainst the plaintiff's will, although he was an officer, and had a legal process vhich he was endeavoring to serve, and although he had, without the knovi-ledge of the plaintiff, and without breaking, got an entrance through the outer door of this common house or building. The whole question turns upon the question whether each family holds by separate title, and has full and exclusive jurisdiction and control over tlie part of the building occupied by it. See Lee v. Gansell, 1 Sec. II.] DUTIES OF OFFICERS. 125 905. Illegality of an arrest or seizure of goods effected through the 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 trespass, their continuance in the house is unlawful, and they can not avail themselves of an entry or possession unlawfully gained to execute a ca. sa. [iri) If the sheriff, in making his entry, " has been guilty either of a breach of a positive statute, or of an offense against the com- mon law, such violation of the law in making the entry causes the possession therejjy obtained to be illegal." {n) And if ad- vantage is taken of the unlawful entry to effect an arrest of a judgment debtor, the court will order the prisoner to be discharged. {0) To break and enter a man's house for the purpose of exe- cuting a ca. sa. " is really," observes Parke, B., " not an abuse of the authority 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 dwell- ing-house." (/) As regards the seizure of goods, how- ever, after an unlawful breaking into the house, a dif- ferent doctrine has prevailed, on the authority of the fol- lowing 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 dwelling-house to execute a 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 ' de! prisel des biens tantum.' " " This case," observes Coleridge, J., " is cited in Semayne's case, ( q) as establishing that if the sheriff breaks the dwelling-house by force of a fi. fa., he is a trespasser by the breaking, and yet the execution which he then doth is good. But it may be doubted whether the judges meant anything more in the Year Book than to state {jn) Hooper v. Lane, 6 H. L. C. 535. {0) Hodgson v. Towning, 5 Dowl. 410. («) Tindal, C. J., Newton v. Harland, {f) Kerbey v. Denby, i M. & W. 341. I M. & Gr. 658. (?) 5 Co. 92a, g2b. Cowp. I ; The King v. Rogers, Leach Cr. Ca. 89 ; The King v. Trapshaw, Id. 427 ; The King v. Carrell, Id. 237 ; i Hale's P, C. 557 ; Tracy v. Talbut, 6 Mod. 214. But see Williams v. Spencer, 5 Johns. (N. Y.) contra ; also Fitch v. Loveland Kirby (Conn.) 386. 126 THE LA W OF TORTS. [Ch. XIV. generally what a fi. fa. authorized a sheriff to do ; but assum- ing that they did, still the dictum there, and that in Semayne's case, are both purely extra-judicial, (r) ' (r) Hooper v. Lane, 12 H. L. C. 542. ' Ilsley V. Nichols, 12 Pick. 269. See note i, ante. It seems now to be gener- ally conceded that an arrest or an attachment made by an unlawful entry into the dwelling of another, is void, and this ruli is predicated upon a sound public policy. The law regards it as essential to the peace and security of families that their dwell- ings shall not be open to invasion by any person against their will, even though thereby the service of civil process is delayed, or even defeated, and that no valid arrest or right to property can be acquired through a.vialation of this right. Chief Justice Shaw, in Ilsley v. Nichols, ante, comments upon the claim that an arrest or attachment made in such a manner would be legal. "Such a decision," says he, "would afford a direct encouragement to a rash and turbulent creditor to violate the rules of law, and do that which might lead to an open breach of the peace, by giving legal effect to his attachment, if he can procure force enough to procure one by unlawful and violent means. It is to be recollected that an officer, while acting within the scope of his authority, and in conformity to the rules of law, is not only entitled to the protection of the law, but has also the power to command the pro- tecdon of all other citizens ; and the law extends the like protection to them. But it would be placing the officer and his assistants in a most critical and questionable predicament if they could be employed in making a lawful attachment by unlawful means. . . . And as it is a well-settled rule of law, established upon considera- tions of policy, that the doors of a dwelling-house can not lawfully be forced for the service of civil process, we think it follows, as a necessary legal consequence, that no valid attachment can be thereby made." But this privilege only extends to dwelling-houses, and does not extend to out-buildings, or buildings occupied for other purposes, as stoves, shops, &c. Piatt v. Brown, 16 Pick. (Mass.) 553 ; Newton V. Adams, 4 Vt. 437 ; FuUerton v. Mack, 2 Aik. (Vt.) 415 ; Fullam v. Stearns, 30 Vt. 443. But if there is any person having the custody of the building, to be found, a demand for admission should be first made. Id. It becomes important to know what persons are entitled to the benefit of this privilege. In Foster's Crown Law, 320, i Hale, 459, 2 Id. 117, and in Seymour's Case, 5 Coke, 93, the doctrine is clearly announced, that " the outer doors or windows of a house shall not be forced by an officer in the execution of a civil process against the occupier, or any of his family, who have their domicil or ordinary residence there ; but that the house shall not be a sanctuary for any other person. So that if a stranger, whose ordinary residence is elsewhere, upon a pursuit, takes refuge there, the house is not his castle ; and the officer may break open the doors or windows in order to execute his process ; and if one, after arrest, flee into his own house, it shall not protect him." Thus it would seem that all persons who actually reside in the house, in- cluding the owner or occupant, his wife, children, domestics, boarders, and all per- sons whose residence is there, are entitled to the privilege. Oystead v. Shed, 13 Mass. 522 ; but the outer doors of the rooms occupied by any of these persons, when an entrance is lawfully obtained through the otiter door, may be broken. But if the entrance is unlawful, the breaking of doors, or the arrest of persons or attachment of property, may be resisted, with as much force as is necessary to pre- vent its consummation. Ilsley v. Nichols, 12 Pick. (Mass.) 267 ; Closson v. Mor- rison, 47 N. H. 474. Sec. II.] DUTIES OF OFFICERS. 127 906. When the sheriff becomes a trespasser by remaining on premises an unreasonable time.— The writ of fi. fa. authorizes the sherifif, 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 be- comes a trespasser, and in the position of a man who has walked into another person's house without any author- ity. The reasonableness of the time is a question for the jury, {s) ' (s) Ash V. Dawnay, 8 Exch. 243. Play-fair v. Musgrove, 14 M. & W. 239. See Hubbard v. Mack, 17 Johns. (N. Y.) 127, as to an entry made through an open door ; also White v. Whiteshire, Palm. 184 ; Ratdiffe v. Burton, 3 B. escape is voluntary, th'! sheriff can not retake the prisoner ; Butter v. Washburn, 25 N. H 251 ; Jackson v. Hampton, 6 Ired. (N. C.) 34 ; unless authorized by the creditor, Id. • but when the escape is negligent, the sheriff may retake him upon fresh pur- suit, and absolve himself from liability ; Lockwood v. Mercereau, 6 Abb. Pr. (N. Y.) ao6 ; Whitehead v. Keyes, I Allen (Mass.) 350 ; and in a criminal case he may Sec. II.] DUTIES OF OFFICERS. 143 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 office, to ascertain whether there any other writs lodged against him. [y) 921. Arrest of the person and seizure of goods under void or irregular process. — In deprivmg 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 nullity, and the sheriff" can derive no protection from the piece of waste paper. (^■) But if the sheriff" has acted under a genuine writ, issued from one of the superior courts, he and his officers act- ing 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, {y) Samuel v. BuUer, I Exch. 440. (a) Countess of Rutland's case, 6 Rep. (z) Hooper v. Lane, 10 Q. B. 561 ; 6 54a. Cotes v. Michill, 3 Lev. 20. H. L. C. 443. retake the prisoner whether the escape was voluntary or negligent. Clark v. Cleveland, 6 Hill (N. Y.) 344. The measure of damages for an escape, except in those cases where debt will lie, is not necessarily the amount of the debt for which the prisoner was committed, prima facie this would be the rule, the law presuming every person to be solvent and able to respond to his debts, but in all actions on the case, the damages are confined to the actuallo^s sustained, hence the sheriff may show in mitigation of damages that the prisoner had no means with which to pay the debts, in which case the damages would be merely nominal. Or that he had but a small amount of property, and not nearly sufificient to pay the entire debt, in which case the damages would be the amount which might probably have been realized from the prisoner's confinement. The burden of proving these matters in mitigation is, however, upon the sheriff ; Brooks v. Hoyt, 6 Pick. (Mass.) 468 ; Simmons v. Bradford, 15 Mass. 82 ; Colby v. Sampson, 5 Mass. 311 ; Nye v. Smith, 11 Mass. 188 ; Burrell v. Lith- gow, 2 Id. 526 ; BuUer's Misi Prius, 69 ; and he may also show that the process upon which the prisoner was confined was invalid ; Kidder v. Barber, 1 8 Vt. 454 ; Tuttle V. Wilson, 24 III. 553 ; or that his arrest wa's procured by unlawful means ; Griffin V. Bowen, 2 Pick. (Mass.) 304 ; or that the escape was connived at by the ■•itditor ; Drake v. Chester, 2 Conn. 473 ; or that he was liberated by order a\ court : Bender v. Graham, Minor (Ala.) 269 ; or on habeas corpus ; Wiles v. Brown, 3 Barb (N. Y.) 37 ; or that the judgment was obtained by fraud, or that the court had no jurisdiction ; Sampson v. Lundon, 5 Day (Conn.) 506 ; Austin v Fitch, I Root. (Conn.) 288. 144 THE LAW OF TORTS. [Cil. XIV. ds a ca. sa. not made properly returnalale ; for the officers ought not to examine the judicial act of the court, nor exer cise 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 been set aside by the court or a judge unless it has been set aside for error, {b) or on the terms that no action shall be brought, {c) and they will be responsible, 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 justi- fication 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,-therefore, 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.(^) If the sheriff, by force of a fi. fa., sells goods, and after- wards the judgment is reversed by writ of error, the defend- ant shall not have restitution of his goods, but the value of them, for which they were sold ; and there are two reasons fijf this : — I. If the sale of the sheriff, by force of a fieri facias, should be avoided by subsequent reversal of the judgment, there would be no buyer, and by consequence no execution done. 2. In the case of a fieri facais, the sheriff is compella- ble to make and levy the debt of the goods, &c., of the de- fendant, and therefore there is reason that it should stand, {k) (a) Countess of Rutland's case, 6 Rep. 33. Elanchenay v. Burton, 4 Q. B. 707. 54a. Cotes V. Michill, 3 Lev. 20. (/) Jones v. Williams, 8 M. & W. (i5) Williams v. Smith, ante. 356. Best, J., in Woolley v. Clark, 5 B. (4 Parsons v. Lloyd, 3 Wils. 341. & Aid. 746. Turner v. Felgate, I Lev. (d) Brooks v. Hodgkinson, 4 H. & N. 95. 712. By the 32 & 33 Vict. c. 62, im- (g) Parke, B., in Jones v. Williams, g prisonment for debt is abolished, viith a Dowl. 710. Doe v. Thorn, i M. & S. few exceptions. 427. {e) Riddell v. Pakeman, 2 C. M. & R. [h) Hoe's case, 5 Co. gob. Sec. II.] DUTIES OF OFFICERS. 145 922. Exemption of sheriffs and others from responsibility when the injury has been brought about by the misrepresentation of the plaintiff. — Every person who by misrepresentation or misstatement, causes an officer charged with the execution of legal process to make a mistake and arrest the wrong person, or seize his goods, can not 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 officer. (?) If the plaintiff has represented himself to be the person against whom the process has been issued, and is arrested in conse- quence of that representation, he is estopped, as regards that imprisonment, from denying that he was the right person ; but, after he has given notice of the real state of facts to the officers, and given them a fair opportunity of inquiry, the de- tention would be unlawful. (/) 923. 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. (/) A return of nulla bona to a writ ol fi. fa. means, that there are no goods applicable to the execu- tion of the plaintiff's writ, not that there are no goods at all belonging to the execution debtor. If, therefore, the pay- ment 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 sheriff 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. («) 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 puttmg a construction Fisher v. Magnay, 5 M. & Gr. 77S. B. I75- Dunston v. Patterson, 2 C. B., N, (w) Shattock v. Garden, 6 Exch. 725. 26 Law J., C. P. 268. Wintle v. Freeman, 11 Ad. & E. 54,7. lie V. Birch, 4 Q. B. 566. ]Ieeman v. Evans, 4 Sc. N. R. 2. son V. Farnham, L. R., 7 Q. («) Barton v. Gill, 12 M. & W. 315. II. — 10 146 THE LAW OF TORTS. [Ch. XJV. nn his own return which, although making it true in fact would make it bad in law, when it admits of another construc- tion which will make it good, (o) 924. Extortion by sheriffs and their officers. — By 29 Eliz. c. 4, s. I, 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 color of their offices, to receive or take for the serving or executing any extent or execution, more con- sideration 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 con- trary, 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 & i Vict. c. 55, further enacts, that it shall 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, 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 ; (/>) but there shall be payable to the sheriff, or other person having the return 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 i 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 i Vict, and no more. If his offi- cer takes more the sheriff is guilty of extortion, and is liable to an action for treble damages, {g) 925. Duties and responsibilities of the high bailiff, bailiffs, and registrars, of the county court. — 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 {0) Reynolds v. Barford, 8 Sc. N. R. I2. Pilkington v. Cooke, l6 M. & W 839. 6i5- Woodgate v. KnatchbuU, 2 T R (/) Hayley v. Racket, 5 M. & W. 620. 155. (^) Wrightup V. Greenacre, 10 Q. B. Sec. II.] DUTIES OF OFFICERS. 147 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 color of some special power or authority supposed to be given to them under the County Courts Act, and not done under the author- ity or in execution of a warrant, {s) The 29 & 30 Vict. c. 14, s. 1 1, provides for the appointment of the registrars of county courts to succeed to the duties and liabilities of high bailiffs, as vacancies shall occur. 926. Liability of ministerial officers where the court has no jurisdiction and no authority to issue 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 proceeding being coram non judice, 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, judicum a non suo judice datum nullius est momenti." {t) Therefore, where an officer acting under a warrant of a commissioner of bankrupts took and de- tained a person in custody under it, and it appeared that 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) 927. Duty of bailiffs of the county court to satisfy the land- lord's claim for rent. — By the 19 & 20 Vict. c. 108, s. 75, it is enacted, that the 8 Anne, c. 14, shall not apply to goods taken in execution under the warrant of a county court ; but (r\ Burton v. Le Gros, 34 Law J., Q. (0 Marshalsea case, 10 Co. 76a. B. gi. («) Watson v; Bodell, 14 M. & W. 57 is) Smith V. Pritchard, 8 C. B. 588. \v) Post, ch. 15. X48 THE LAW OF TORTS. [Ch. XIV. 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 rent in arrear, and the time for which it is due ; and if such 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 perishable 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 will 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 for which the warrant issued. If any re- plevin 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 can not under this statute, distrain the goods of a stranger on the demised premises for the purpose of satisfying the landlord's rent, {w) 928. Liabilities of jailers. — A jailer 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 deten- tion. Where the plaintiff had been delivered into the custody of the jailer of a liberty under a good warrant for arrest, though the execution of it was illegal, inasmuch as the plain- tiff, under a warrant to the bailiff of the liberty, had been ar- rested without the liberty, and afterwards carried into the liberty and delivered to the jailer, it was held that an action could not be maintained against the jailer, who was not bound to 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 tne covin or practic- {w Beard v. Knight, 8 Ell. & Bl. 865 ; 27 Law J., Q. B. 359 Foulger v. Tay- lor, 5 H. & N. 202. Sec. II.] DUTIES OF OFFICERS. 149 ing 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 information had been false, and the jailer had set the prisoner at large, he had been liable for an escape. And the plaintiff was not without remedy, for he had a good action against wrong-doers." (.r) But if a sheriff's officer arrests the wrong man and hands him over to a jailer there, as the arrest is altogether unjustifi- able, and the warrant no protection, the jailer who re- ceives and detains the wrong man is responsible for the wrongful imprisonment, and can not 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. (j/) But it the person thus wrongfully arrested does not, when brought to the jailer, complain of the wrongful arrest, or give the jailer any means of ascertaining that he is not the person named in the warrant, nominal damages only would be recoverable. A jailer is bound to discharge a prisoner, committed for contempt 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. {£) 929. Liability of the messenger of the Court of Bankruptcy. — By the 31 & 32 Vict. c. 71, s. 99, power is given to the Court of Bankruptcy, 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 bank- rupt, where any of his property is supposed to be. {a) {x) Olliet V. Bessey, T. Jones^ 214. (a) See Edge v. Parker, 8 B. & C. 700. {y) Aaron v. Alexander, 3 Campb. 34. Under the 12 & 13 Vict. c. 106, s. 106, Griffin V. Coleman, 4 H. & N. 265 ; 28 the messenger of the Court of Bank- Law J., Exch. 134 ; Bro. Abr. Tres- ruptcy was entitled to the same protec- I'ASS, pi. 133, 256, 265. tion as is allowed by law in the execution {«) II Geo. 4 & I W. 4. c. 36,5. 15. of a search warrant for property reputed Moone v. Rose, L. R., 4 Q. B. 486 ; 38 to be stolen or concealed. L. J., Q. B. 236. X48 THE LAW OF TORTS. [Ch. XIV. 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 rent in arrear, and the time for which it is due ; and if such 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 perishable 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 will 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 for which the warrant issued. If any re- plevin be made, the bailiff is notwithstanding, to sell such portion ot 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 can not under this statute, distrain the goods of a stranger on the demised premises for the purpose of satisfying the landlord's rent, {w) 928. Liabilities of jailers. — A jailer 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 deten- tion. Where the plaintiff had been delivered into the custody of the jailer of a liberty under a good warrant for arrest, though the execution of it was illegal, inasmuch as the plain- tiff, under a warrant to the bailiff of the liberty, had been ar- rested without the liberty, and afterwards carried into the liberty and delivered to the jailer, it was held that an action could not be maintained against the jailer, who was not bound to 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 ot tne covin or pr£.ctic- (w Beard v. Knight, 8 Ell. & BI. 865 ; 27 Law J., Q. B. 359 Foulger y. Tay- lor, 5 H. & N. 202. Sec. II.] DUTIES OF OFFICERS. 149 ing 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 information had been false, and the jailer had set the prisoner at large, he had been liable for an escape. And the plaintiff 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 jailer there, as the arrest is altogether unjustifi- able, and the warrant no protection, the jailer who re- ceives and detains the wrong man is responsible for the wrongful imprisonment, and can not 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. ( j) But it the person thus wrongfully arrested does not, when brought to the jailer, complain of the wrongful arrest, or give the jailer any means of ascertaining that he is not the person named in the warrant, nominal damages only would be recoverable. A jailer is bound to discharge a prisoner, committed for contempt 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) 929. Liability of the messenger of the Court of Bankruptcy. — By the 31 & 32 Vict. c. 71, s. 99, power is given to the Court of Bankruptcy, 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 bank- rupt, where any of his property is supposed to be. {a) (x) Olliet V. Bessey, T. Jpnes^ 214. (a) See Edge v. Parker, 8 B. & C. 700. (jc) Aaron v. Alexander, 3 Campb. 34. Under the 12 & 13 Vict. c. 106, s. 106, GrifBn v. Coleman, 4 H. & N. 265 ; 28 the messenger of the Court of Bank- Law J., Exch. 134 ; Bro. Abr. Tres- ruptcy was entitled to the same protec- I'ASS, pi. 133, 256, 265. tion as is allowed by law in the execution (a) II Geo. 4 & I W. 4. c. 36,3. 15. of a search warrant for property reputed Moone v. Rose, L. R., 4 Q. B. 4S6 ; 38 to be stolen or concealed. L. J., Q. B. 236. ISO THE LAW OF TORTS. [Ch. XIV. SECTION III. OF ACTIONS AGAINST JUDGES, SHERIFFS, MINISTERIAL OFFI- CERS AND THEIR ASSISTANTS, {b) AND PARTIES SET- TING THEM IN MOTION. 930. Actions against county court judges— Notice of action. — Provision is made 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 dis- trict 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 bona fide belief that his duty as judge of the county court renders it incumbent on him to do so, notwithstanding a prohibition 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 of an act of Parliament, are in general entitled to notice of action, and to an opportunity of tendering amends and paying* money into court, and the action against them must in general be brought within a certain limited period. 931. Remedies against sheriffs and officers for an escape. — Formerly the 13 Edw. i, c. 11, (^) and i Ric. 2, c. 12, gave the party who suffered by an escape of his debtor the same remedy against a sheriff or jailer guilty of the escape that he had against the debtor, and enabled him to recover from such sheriff Or jailer 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 cus- tody, 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 IJi) See 30 & 31 Vict. c. 142, s. 10. ( (e) White v. Binstead,' 13 C. B. 308 ; i C. M. & R. 724- See ante. i66 THE LAW OF TORTS. [Ch. XIV. If a sheriff or his officer threatens to make a levy on goods which belong to the plaintiff, and the latter, in order to pre- vent 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 realized 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. (k) 956. 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 plaintiS 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 him- self to some extent from the consequence of the sheriff's neg- ligence. It must not, however, be understood that the plain- tiff's conduct can, under no circumstance, have a material bearing upon the damages. If he has done anything to ag- gravate 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." (/) " 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 ber fore the arrest offered a composition of six shillings in the pound ; in other words, the chance that the debt or some part (j) Valpy V. Manley, i C. B. 602. Calvert v. Joliife, 2 B. & Ad. 421. {k) Foster v. Hilton, i Dowl. P. C. 38. (/) Ardeii v. Goodacre. 11 C. B. 375. Sec. II.] DUTIES OF OFFICERS. 167 of it might be recovered by the pressure put upon the debtor, {m) 957. Special damages. — All special and extraordinary dam- age, which is the natural and direct result of the wrongful act of which the plaintiff complams, is recoverable by him if it is set forth and claimed in the declaration, {n) The cost of set- ting aside a judgment for irregularity, however, can not be made the subject of special damage in an action ■ against the plaintiff or his attorney for seizing the plaintiff's goods under color of the irregular judgment, if such costs have been ap- plied for, and refused by the court on motion. {0) 958. Exemplary damages. — Where trespasses of a serious nature have been committed by offiers of the law under color of legal process, exemplary damages are recoverable. Vio- lent 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 circum- stances that it is very difficult to discover any standard by which to measure the amount ;" {P) and the court will not interfere, on behalf of the sheriff or his officers, with the con stitutional functions of the jury in assessing the damages, al- though 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. ( g) 959. Recovery of treble damages for extortion. — If the plain- tiff, in an action against a sheriff for extortion, frames his declaration on the statute of Elizabeth for the recovery ol 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, if) (vi) Macrae v. Clark, L. R I C. P. 8 C. B. 331. 403. (q) Gregory V. Cottrell, i Ell. & Bl. (») Post, ch. 22. 369 ; 22 Law J., Q. B. 217. (0) Loton V. Devereux, 3 B. & Ad. (r) Post, ch. 21, s. i, Double and 345. Treble Damages. Buckle f. B«wes, (/) Brunswick ^Duke of) v. Slowman 4 B. & C. 154. i68 THE LAW OF TORTS. [Ch. XV. CHAPTER XV. OF TRESPASSES AND INJURIES COMMITTED IN EXECUTION OF WARRANTS AND ORDERS OF JUSTICES — RESPONSIBILITY OF MAGISTRATES, CONSTABLES, THEIR ASSISTANTS, AND PERSONS SETTING THEM IN MOTION — REME- DIES FOR WRONGS DONE UNDER COLOR OF CONVICTIONS AND WARRANTS OF JUSTICES. Section I. — Of trespasses and injuries 969. committed in the execu- tion of warrants and 970. orders of justices. 960. Of the jurisdiction of justices of 971. the peace. 972. 961. Jurisdiction of justices residing or being out of the county of which they are justices. 973. 962. Jurisdiction of borough justices under the municipal corpora- tion act. 974. 963. The power of summary convic- tion of offenders by justices 975. without the intervention of a jury. 976. 964. Liability of justices for miscon- duct in the exercise of their judicial functions. 977. 965. Of the granting of search-war- rants by magistrates. 978. 966. Liability of justices for acts done by them without jurisdiction or in excess of their jurisdic- 979. tion. 967. Exemption of justices from ac- 980. tions in cases where they had ^ prima facie jurisdiction, and no objection was taken to their 981. jurisdiction until after they had adjudicated. 968 Wrongful proceedings by justices 982, interested in the matter before them. 983, Wrongful commitment and im- prisonment by justices. Acts of a justice of the peace who has not duly qualified. Of the form of commitment. Commitment by justices of ac- cused persons fcr trial — Ex- amination of the witnesses. Effect of the depositions being taken in the absence of the magistrate who acts upon them. Convictions by magistrates on their own view. Summary convictions founded upon infornsations.- Statutoiy provisions respecting summary convictions and or- ders of justices. Requisites of the information or complaint. Of the time within which the in- formation or complaint must be laid. Proceedings upon information or complaint. Unlawful proceedings of justices when there is no information or complaint before them. When a complaint once made can not be settled and with- drawn. Convictions by justices in excess of their jurisdiction. Ouster of the jurisdictioa ct Sec. I.] TRESPASSES IN EXECUTION. 169 justices by setting up a claim of title. 984. To what extent a justice of the peace is protected in the exer- cise of a discretionary power. 985. Wrongful ministerial acts by magistrates. 986. Convictions upon by-laws. 987. Of the drawing-up of convic- tions and orders. 988. Disclosure of the authority and jurisdiction of justices on the face of their proceedings. 989. Description of the offense or sub- ject-matter of complaint. 990. Of singling out the offender. 991. Description of the locality of the offense. 9g2. Orders and adjudications by jus- tices. 993. Statutory forms of convictions and orders. 994. Immateriality of mere surplus- age. 995. Effect of the conviction. 996. Warrants of distress and commit- ment. 997. Exemption of justices from ac- tions in respect of warrants of distress for poor-rate. 998. Warrants of distress and com- mitment in case of non-pay- ment of costs by an informer or complainant. 999. Service of a copy of the minute of the order before the issue of a warrant of commitment or distress. 1000. The power of appeal to the court of quarter sessions against summary convictions and or- ders of justices. 1001. Excess of jurisdiction may be made a ground of appeal. 1002. Of the execution of convictions and orders after notice of appeal. 1003. Exemption of justices from lia- bility where a defective con- viction or order has been confirmed upon appeal. 1004. Statement of a case to the superior courts by way of appeal from decisions of justices. 1005. Of the quashing of convictions and orders — Removal of orders and convictions by certiorari. 1006. Decisions which are final, and can not be reviewed by cer- tiorari or mandamus. 1007. Commitment for contempt. 1008. When the writ of certiorari is not taken away by express statutory prohibition. 1009. Proof by affidavit of the facts and circumstances calling for the interference of the su- perior court. loio. Amendment of orders or judg- ments of justices on return to a certiorari. loil. Of testing the legality of a com- mitment by wiit of habeas corpus. 1012. Proceedings against jr.stices to compel them to act in par- ticular cases. 1013. Right of county justices to or- der tlie expense of county litigation to be defrayed out of the county funds. 1014. Of the power of justices to give costs. Section II. — Exemption of constables and their assistants from liability when acting i?i the execution of war- rants and orders of magistrates. 1015. Exemption of constables, offi- cers, and their assistantS'from liability for acts done by them in obedience to war- rants of justices. 1016. Excess of authority on the part of constables and officers — H andcuffing unconvicted pris- oners. 1017. Abuse of a search-warrant. Section III. — Remedies for wrong- 170 THE LAW OF TORTS. [Ch. XV. done under color of 1030. convictions and war- rants of justices. 1018. Replevin of chattels distrained under warrant of justices, 1031. 1019. Of actions against justices. I0?0. When the action is brought in respect of things done with- out jurisdiction, or in excess 1032. of jurisdiction. 1021. When the action is brought for a malicious conviction, com- IO33. mitment or distress, or a malicious abuse by a magis- 1034. trate of the functions of his office. 1022. Effect of the existence of a 1035. power of appeal on the right to bring an action. 1023. Objections by justices to actions against them in the county court. 1036. 1024. Of setting aside certain actions brought against justices of the peace. 1037. 1025. Limitation of actions against justices of the peace. 1025. Of notice of action against 1038. justices. 1027. Statement of the cause of action on the face of the notice. 1028. Tender of amends before action. 1039. 1029. Of the computation of the month's notice, and of the time for tendering amends. Of the statutory protection to constables, officers, and their assistants from vexatious ac- tions. , Parties to be made defendants — Wrongful convictions and orders by one justice acted upon by another justice. Liability of persons who set justices and constables in motion. Evidence at the trial of actions against justices. Proof of malice and of the want of reasonable and probable cause. Evidence at the trial of actions against constables and officers — Proof of the injury having been done in execution of a warrant of justices. Proof of warrant of justices — Secondary evidence of the contents of a warrant. Proof by the plaintiff of his de- mand of the perusal and copy of the warrant. Proof by the defendant of the production of the warrant — Production and perusal of a copy of the warrant. Damages recoverable in ac- tions against justices of the peace. SECTION I. OF TRESPASSES AND INJURIES COMMITTED IN THE EXECU- TION OF WARRANTS AND ORDERS OF JUSTICES. 960. Of the jurisdiction of justices of the peace, [a) — The ancient conservators of the peace, the nature and extent oi whose power and authority are now unknown, were formerly (a) See ante. Sec. I.] TRESPASSES IN EXECUTION. 171 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. i, it is enacted that in every county of England there shall be assigned for the keeping 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 themselves of pillors and robbers who go wandering about and will not labor, and put them in prison, and take of all them that be not of good fame sufficient surety and mainprize of their good behavior, aud duly punish others ; and hear and determine, at the king's suit, all manner ot felonies and trespasses done in their several counties, accord- ing 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 court, and were to be judges of a court of record. Courts accordingly were holden by them for hearing and determining offenses within their cognizance ; records were kept by them of their proceedings in these courts, and each justice named in the commission came to be called custos rotulorum, or keeper of the records and rolls of the county, {b) The power "to hear and determme " gave justices of the peace authority only 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 will adjudge as the law appoints, although it be not so ex- pressed." {c) Hence, justices were under thd necesity of holding ses- sions and assembling juries for the trial of all offenses of which they had cognizance ; and these sessions were by 36 Edw. 3, Stat. I, 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 (h) Holt, C. J., Harcourt v. Fox, I (c) See Holland's case, 4 Co. 74a, 74b, Show. 507. 172 THE LA W OF TORTS. [Ch. XV. 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 con- tinuity of the proceeding and the jurisdiction of the court must be preserved by a formal adjournment, otherwise the proceeding is coram non judice, 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, 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 pun- ish 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 beha- vior ; and if they shall refuse to find such surety, to cause them to be safely 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 offenses, of which justices of the peace may lawfully inquire, &c. {g) Besides the general authority confided to justices by the commission of the peace, they are clothed by various Acts of Parliament with a special and particular jurisdiction over particular offenses, which jurisdiction must be exercised sometimes by one justice and sometimes by two ; sometimes ii;i their sessions, and sometimes out of their sessions. When- ever these statutory powers are exercised by justices, care must be taken that the special authority is strictly pursued. Every single justice has regularly a jurisdiction for the preservation of the peace through the whole county by virtue of his commission, but the power of hearing and determining offenses is by the commission given to two or more ; and whenever a thing is required to be done by two ]ustices, they must both be present at the execution of it. A justice has no power to do any judicial act out of his coun- (d) 33 Hen. 8, c. lo. 59. [e) Rex V. West Torrington, Burr. S. (/) 2 Hawk. P. C. c. 8, § 2. C. 293. Reg. V. Payn, 34 Law J., Q. B. (^) Dalt. J. P. Ch. 5. Sec. I.] TRESPASSES IN EXECUTION. 173 ty, but he may do a merely ministerial act, such as the taking of an information, {k) A justice of the peace has jurisdiction to require sureties for good behavior from persons charged with aggravated defamation, and with persisting in a continued course of libelling. Therefore, where a person persisted in writing libels upon a wall against a private individual, and was required to find sureties for his good behavior, and in de- fault was committed to prison, it was held that the justice had acted in a matter over which he had jurisdiction. (?) If the charge be of an offense over which, if the offense charged be true in fact, the magistrate has jurisdiction, the magis- trate's jurisdiction can not 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. (J) 961. Jurisdiction of justices residing or being out of the county of which they are justices. — 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 adjoin- ing 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 pre- cinct next adjoining thereto, or surrounded thereby, being a county of itself, or otherwise having exclusive jurisdic- tion. Qi) 962. Jurisdiction of Borough justices under the Municipal Corporation Act. — By s. 1 1 1 of 5 & 6 Wm. 4, c. J^, county jus- tices have concurrent jurisdiction with borough justices in boroughs which have not received the grant of a separate court of quarter sessions. All offenses committed within any borough against the provisions of any local Act of Parliament are cognizable by the justices of the borough, and such justices possess all the powers and jurisdiction with respect to such offenses which were formerly possessed by county justices. ( /) These, and (h) 2 Hale, P. C. 51. 262. (i) Haylock v. Sparke 22 Law J., M. {k) 11 & 12 Vict. c. 42 ; 11 & 12 Vict C. 72. c. 43, ss. 6, 35 ; 26 & 27 Vict. c. 77. (j) Cave V. Mountain, I M. & Gr (/) 7 Wm. 4 & i Vict c. 78, s. 31. 174 THE LAW OF TORTS. [Ch. XV. all other offenses punishable in boroughs upon summary con- viction, must be prosecuted in conformity with the pro- visions of the statutes regulating the proceedings of justices; but the prosecution for the offense must be commenced within three calendar months, {m) and any person who thinks him- self aggrieved by the summary conviction may appeal to the court of quarter sessions for the borough or the county. («) ' 963. 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 in- terference; but even in these it was confined to their own view. These are the cases of forcible entries, 12 Ric. 2, c. 2, and of riots, 13 Hen. 4, c. 7 ; in the latter of which, it may be re- marked, 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 mattfer, 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. I, c. 4, relating to laborers, which authorized them to examine laborers, &c., on their oath, and on their confes- sion to punish them as if they were convicted by inquest. 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 punishment upon their own in- quiry and judgment." (p) " The earliest statute upon w'hich a summary conviction (ill) 5 & 6 Wm. 4, c. 76, s. 127 ; il & {o) Paley on Surnmary Convictions, 12 Vict. c. 43, s. II. Introd., pp. 5, 6, 5th ed. («) 5 & 6 Wm. 4, t. 76, s. 131. ' In this country, the jurisdiction of justices of the peace is regulated by statute in the several states ; hence no general idea as to their powers, generally applicable, can be given, but the statute in each state should be consulted, to ascertain the extent and limit of their powers. Com. v. Leach, i Mass. 59 ; Bridge v. Ford, 4 Id. 641. Sec. L] trespasses IN EXECUTION. 175 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 prece- dent of a conviction upon this statute, (/) and there appears vo have been one removed into the Court of Queen's Bench by certiorari as early as the 43rd year of Elizabeth, a. d. 1600; and this very case affords a proof of the objection, which, in the state of manners at that day, might well exist, against relaxing the jealously of the common law by intrust- ing anything like arbitrary authority in private hands." {q) Until recently justices of the peace had no power to con- vict STjramarily 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 intervention of a jury, where the value of the property stolen does not in the judgment of such justices ex- ceed 5s., and the person charged consents to have the case heard and determined by such justices. 964. liability of justices for misconduct in the exercise of their judicial functions. — A justice of the peace who acts corruptly in the discharge of the duties of his office, and uses the power of the law for the purpose of injuring and oppress- ing those over whom he has authority, and gratifying his own private animosity, is responsible in damage to the parties in- jured ; but it must be proved that he has acted wrongfully from personal motives of spite or ill-will, or, in legal parlance, that he " has acted maliciously, and without reasonable and probable cause," for he can not 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, {f) ' (/) Lambard's Justice, p. 298. (r) Pease v. Chaytor, 32 Law J., M. C \q) Paley, ut sup., pp. 10, II. 121 ; post, s. 2. ' Reid V. Hood, ; Maguirev. Hughes, 13 La. Ann. 281 ; Garfield v. Doug- lass, 22 111. 100 ; Kennedy v. Terrill, Hard. (Ky.) 490; Terrail v. Tinney, 20 La. Ann. 444. Justices of the peace and all judges of inferior tribunals are amenable in dam- ages, as well as criminally, for all acts done by them in their official capacity, from corrupt motives, and that, too, whether the act complained of was judicial or purely ministerial. A distinction is made between judges of courts of general, and judges of courts ot limited, jurisdiction. The former are never amenable in dams^es fr 176 THE LAW OF TORTS. [Ch. XV. 965. Of the granting of search-warrants by magistrates. — Upon a representation to a magistrate that a person has rea- son to suspect that his property has been stolen and is con- any act done by them in an official capacity, even though corruptly done. Groan velt V. Burwell, i Ld. Rayd. 468 ; Thorp's Case, Colton's Record's, 74-316 ; Med- gate's Case, 28 Assize Book, pi. 21 ; Floyd's Case, 10 Coke, 23 ; LaCaux v. Eden, Doug. 5g4 ; Brodie v. Rutledge, 69. In such cases the only remedy is by impeach- ment ; Yates v. Lansing, 5 Johns. (N. Y.) 282 ; but justices of the peace, and judges of courts of limited jurisdiction, are liable iax judicial acts even, when they are done corruptly or maliciously. Mason v. Cook, 2 N. & M. (S. C.) 379 ; Shoemaker V. Nesbitt, 2 Rawle (Penn.) 201 ; Reed v. Hood, 2 N. & M. (S. C.) 168 ; Bullitt v. Clement, 16 B. Mon. (Ky.) 237 ; Bonard v. Hoffman, 18 iMd. 479 ; Downing v. Her- rick, 47 Me. 462 ; Little v. Moore, 4 N. J. 74. So, wlien any ministerial duty is annexed to the office, if it is wrongrally, neg- ligently, or improperly exercised, whether the act proceeded from mistake or fraud, liability attaches therefor. Taylor v. Doremus, 16 N. J. 473 ; Stone v. Graves, 8 Mo. [48. So, where they have no jurisdiction over the matter, their acts are coram non jtcdice, and actions will lie against them without any reference to the precept or process, unless the facts upon which the want of jurisdiction depended were pecu- liarly within the possession of the party aggrieved, and were not communicated to the court. But if the facts were such as the court was bound to kncv, liability attaches. Pike v. Carter, 3 Bingham, 78. In Lo-wtherv. The Earl of Radnor, 8 East, 113, the rule was laid down that a magistrate can not be made liable as a trespasser, if facts stated to him on oath by the complainant are such as show jurisdiction in him over the subject-matter, and nothing appears in the answer to contradict the first statement, or to show a want of /urisdiction. In Pike V. Carter, a^tte, the court held that, before any action could be brought against a magistrate for anything done in the discharge of his duty, it must appear that his attention was called to all 'the facts necessary to enable him to form a judg- ment as to the course he ought to have pursued. But this is only the cafe when the facts are such as he is not bound to know, or as do not appear upon the face of the papers. If his want of jurisdiction is apparent, he is liable, whether the ques- tion of jurisdiction was raised before him or not ; Wise v. Withers, 3 Cranch (U. S. C. C.) 331 ; Wilkins v. Hemsworth, 3 Nev. & P. 55 ; West v. Small, 3 M. & W. 418 ; but there must have been a total want of jurisdiction. If there was jurisdic- tion for any purpose, so that a valid judgment could be rendered, the fact that his jurisdiction has in some respects been exceeded, does not constitute a good ground of action, or render the judgment void. The rule seems to be that in order to create liability there must have been a total want of jurisdiction, so that any judg- ment rendered therein would have been absolutely void, and that in all cases where there was partial jurisdiction, so that the judgment is not void, but voidable only, no liability exists. Burton v. Eyre, Cro. Jac. 28S ; Gold v. Strode, Carth. 148 ; 3 Mod, 324 ; Weaver v. Clifford, Cro. Jac. 3 ; Ognell v. Paston, Cro. Eliz. 165 ; Houlden V. Smith, ig L. J. (Q. B.) 170. But, even where the jurisdiction depends upon a pe(.uliar state of facts which were not disclosed to the magistrate, so that no liabil- ity attaches for the acts done by him, yet if he afterwards seeks to enforce the judgment, he, and all persons aiding therein will be liable in trespass therefor I.owther v Radnor, ante ; Wicks v. Clutterbuck, 2 Bing. 483. Sec. I.] TRESPASSES IN EXECUTION. 177 cealed in some specified place, the magistrate may lawfully issue his warrant to search the place and to bring the occu- pier or owner before him. It need not be a positive and di- rect averment upon oath that the goods are stolen, in order to justify the magistrate in granting his warrant. If a war- rant is issued without due authority on the part of the magis- trate, 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 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 offense, punishable either upon indictment or summary conviction by virtue of the Criminal Law Consolidation Act (24 & 25 Vict. c. 96), has been com- mitted, (i) ' (s) Elsee v. Smith, Wyatt v. White, (t) 24 & 25 Vict. c. 96, s. ^03. See 32 ante; 4 Inst. 177. & 33 Vict. c. 12, s. 10 ; c. 57, s. 6. ' The power to issue warrants to search dwelling-houses or other buildings in which it is suspected that stolen property is concealed, is now purely statutoiy, and the provisions of the statute must be strictly complied wtth, or the officer and all persons acting in pursuance of it, will be trespassers. State v. MaJiu, 5 Ired. (N. C.) 45 ; Reed v. Rice, 2 J. J. Marsh. (Ky.) 44 ; Tuell v. Wrink, 5 Blackf. (Ind.) 24g. By the common law a justice of the peace, being a conservator of the public peace, had power to issue a warrant to search suspected places for stolen goods, or for concealed felons, but he could not do this upon mere surmise, but was bound to predicate his warrant upon such facts as amounted to a reasonable suspicion. Wood's Institutes, 86 ; Johnson v. Leigh, 4 Taunton, 247. And a warrant issued by a magistrate upon iare suspicion, although said to be quitecommon, was against magna charta, and not justifiable. Wood's Institutes, p. 644. It seems that by the common law, a justice of the peace, who by virtue of his commission was created a conservator of the peace, might, when a felon was known, or suspected \.o be in a certain house, send his warrant to the constable to go alon" with the party giving the information of the felony and of the facts, to make a search, but in order to justify the issue of a search-warrant, the magistrate must either have had personal knowledge of the facts, or have received information, from others, and that in all cases there must have been reasonable grounds to sus- pect, &c. Wood's Institutes, p. 644. But, as has previously been stated, in this country the jurisdiction and powers of justices of the peace are derived from stat- utes, and the search of dwellings or buildings of any description for felons or stolen goods, is also regulated by statute, special reference to which should be kad. II. — 12 178 THE LAW OF TORTS. [Ch. XV 966. Liability of justices for acts done by them without juris- diction, or in excess of their jurisdiction. — If magistrates, while occupying the bench from which magisterial business is usually administered, publicly disseminate slanders under the pretense of giving advice, they are no more privileged than if they were illiterate mechanics assembled in an ale- house, {ti) If a magistrate convicts an accused person of an offense 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 magis- trate (post, s. 2), to recover damages for the wrong done. Sim- ilar proceedings may be taken against him where he has exceeded his jurisdiction, and done more than he was au- thorized by law to do.' ' 967. Exemption of justices from actions in cases where they had a prima facie jurisdiction, and no objection was taken to their jurisdiction until after they had adjudicated. — If, under the special powers of particular Acts of Parliament, justices have a prima facie jurisdiction to inquire into and adjudicate upon ,eertain matters that have been brought before them, 1 («) Ld. iCampbeU, C.J., in Lewis v. Levy, Ell. BI. & Ell. 554 ; 27 Law J., ' Q. B. 282. ' Bailey v. Wiggins, 5 Har. (Del.) 462 ; Diipont v. Downing, 5 Clark (Iowa), 172 ; Hall V. S.pgers. 2 Blackf. (Ind.) 429 ; Modisett v. Governor, 2 Id. 135 ; Ely v. Thompson, 3 A. K. Marsh. (Ky.) 70 ; Kern v. Shoemaker, 4 Ohio, 331 ; Harmon v. Gould, Wright i(Oliio) 432 ; Howe v. Mason, 14 Iowa, 570 ; Ambler v. Church,' i Root (Conn.) 211 ; Piper v. Pearson, 2 Gray (Mass.) 120 ; Clark v. May, 2 Id. 140 ; as for issuing an order .or warrant for the arrest of a person withont authority ; John- son y. Tompkins, i Bald. (U. S.) 511 ; or without a compliance with all statutory requirewents. Whitoomb v. Cook, 3g Vt. 261 ; Sullivan v. Jones, 2 Gr?.y (Mass.) 570 ; or an execution, in a case where he had no jurisdiction ; Inas v. Winspear, 18 Cal. 399 ; .ai against one not a party to the suit ; Terrail v. Tinney, 20 La. Ann. 444 ; or who acts when he has no jurisdiction, knowing the facts ; Clark v. May, 2 Gray (Mass.) 410 ; but a justice of the peace or other judicial officer can not be held liable in trespass for an act done by him in excess of his jurisdiction, when the facts Apeasioning the want of jurisdiction are not known to him, or are not of such a character that he ought to have known them ; Calder v. Hackett, 3 Moors, I'. C. 77 ; Pike v. Carter, 3 Biag. 78 ; Lowther v. Earl of Radnor, 8 East, 113 ; Clark y. May, ante; Wicks v. Clutterback, 2 Bing. 483 ; or when he acts corruptly ; Garfield v. Douglass, 22 111. 100 ; or maliciously ; Kennedy v. Terrell, Hard. (Ky.) 490, Sec. I.] TRESPASSES IN EXECUTION: 179 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) Thus, where an Act of Parliament gave certain magistrates a general jur- isdiction over disputes between certain friendly societies and their members, excepting where the rules of the society con- tained an arbitration clatxse, and certain disputes were brought before a magistrate, who adjudicated thereon in ig- norance of the 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. " When a party," it was observed by the court, " relies on an exception from a general law, the burden 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 mag istrate 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 can not main- tain an action against the magistrate who orders proceedings to be taken against him in consequence of such refusal, {z) In a case that arose on the 20 Geo. 2, c. 19, giving magis- trates jurisdiction to determine differences between masters and servants in husbandry, and other laborers, respecting wages, {a) it was held that an action of trespass would 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 sum- moned to attend. " The facts stated in the case," observes {x) Calder v. Halkett, 3 Moore, P. C. (z) Best, C.J., lo Moore, 386. ^. 6S. Pease v. Chaytor, 32 Law J., M. (a) See 30 & 31 Vict. c. 141, continued C. 121. by 31 & 32 Vict. u. HI. (y) Pike v. Carter, 10 Moore, 376. i8o THE LAW OF TORTS. [Ch XV Lord Ellenborough, " are not stated as facts appearing be- fore the magistrates at the time, and, m order for the plam- tiff 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 mag- istrates 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) ' 968. Wrongful proceedings by 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 him- self personally interested, (c) but must cause the offender to be carried before some other justice. " And therefore the Ma)for of Hereford was laid by the heels for sitting in judg- ment where he himself was the complainant, though, by the charter, he was the sole judge of the court." ( it is enacted that in all cases where any person shall appear or be brought before any justice of the peace, charged with any indictable offense, the justice, before he commits the accused person for trial, or admits him to bail, shall, in the presence (jf) The Margate Pier Company v. (a) Hutchinson v. Lowndes, 4 B. & Hannam, 3 B. & Aid. 271. Ad. 121. Leary v. Patrick, 15 Q. B. (y) Mayhew v. Locke, 7 Taunt. 69. 274. {%) Priclcett v. Gratrix, 8 Q. B. 1029. ' Weeks v. Ellis, 2 Barb. (N. Y.) 320 ; Kattman v. Ayer, 3 Strob. (S. C.) gs , Greenleaf v. Law, 4 Den. (N. Y.) 168 ; Ex-parte BoUman, 4 Cranch (U. S.) 75- ' Sec. L] trespasses IN EXECUTION. 185 of such accused person, who is to be at liberty to put ques- tions to any witnesses produced against him, take the state- ment 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 respec- tively by the witnesses who shall have been so examined, ana 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, from 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 reason- able sum (s. 27). If the depositions when taken contain no charge of any indictable offense, oral evidence given before the justice, but not contained in the depositions, can not be brought in aid of the depositions, to support the- proceedings of the magistrate, and establish a valid information and the re.quisite jurisdiction, {d) 973. Effect of the depositions being taken in the absence of the magistrate who acts upon them. — Every magistrate taking the depositions 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 magis- trate's clerk in the absence of the magistrate, and the magis- trate proceeds to act upon depositions so taken, he acts en- tirely 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 {b) Lawrenson v. Hill, lO Ir. Com. be proved. Venafra t. Johnson, I M. Law Rep. 1S5. It has been held, how- & Rob. 316, for "whatapai-ty says is ever, in an action for a malicious prose- evidence against himself, whether an- cution, that oral evidence is admissible other person took it down or not." to add to or explain the examination of Alderson, B., in Robinson v. Vaughton, the defendant before a magistrate, though 8 C. & P. 255. But the writing must be the examination was taken down in produced, to see what it contains, before writing, and that anything the defendant questions can be asked respecting mat- may have said as jKiit of his information ters which it does not contain. beyond what was put into writing may (c) C . die v. Seymour, i Q. B. 892. 1 86 THE LAW OF TORTS. [Ch. XV. the charge, or for any erroneous judgment of his own upon the facts. " The only question is, whether the magistrate had jurisdiction to investigate and commit." (d) 974. Convictions by magistrates on their own view. — A con- viction before a justice or justices of the peace, without the mtervention 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 favor, 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 offenses, by enabling a magis- trate to convict and punish upon his own view of the commis- sion of the offense, without making any inquiry upon an oath or taking any information, (y) 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. (^) 975. Summary convictions founded upon 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 jurisdiction over the offense in the abstract, but to g'.ve him jurisdiction in any particular case over a particular individual, there must be a proper charge or information be- fore him. (li) If, therefore, he grants a warrant against a per- son upon a supposed charge of felony, without taking any deposition or information on oath, and the party is arrested under the warrant, this is a trespass, for which an action may forthwith be maintained against such justice for compensa- tion in damages, (i) 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 re- moving parish, he acts wholly without jurisdiction in the matter, and is a trespasser. ( li) (d) Mills V. CoUett, 6 Bing. g2. Wind- (g) Basten v. Care ff, 3 B. & C 649. ham V. Clere, Cro. Eliz. 130 ; i Leon, {h) Caudle v. Seymour, i Q. B. 852. r8;. (0 Morgan v. Hughes, 2 T. R. 225. (e) I Smith's L. C, note to Crepps v. (k) Reg. v. Justices of Bucks, 3 Q. B, Durden, 6th ed. 807. (/) Jones V. Owen. 2 D. & R. 602. Sec. I.] TRESPASSES IN EXECUTION. 187 976. Statutory provisions respecting summary convictions and orders of justices. — By 11 & 12 Vict. c. 43, s. i, 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 per- son has committed, or is suspected to have committed, any offense or act within the jurisdiction of such justice, &c., for which he is liable, upon summary conviction, to be impris- oned or fined, or otherwise punished, and also in all cases where a complaint shall be made to any such justice, &c., upon which he has authority to make any order for payment of money, it shall be lawful for the justice, &z., to issue his summons stating shortly the matter of the information and complaint, and requiring the accused party to appear and an- swer, and be further dealt with in manner therein provided. 977- Requisites 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 take an order for the payment of money or otherwise, (/) it shall not be necessary for the com- plaint 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 offense or act punishable upon summary conviction, unless some particular Act of Parliament shall otherwise re- quire, may be made or laid without any oath or affirmation being made of the truth thereof, except in cases of informa- tions, where the justice receiving the same shall thereupon issue his warrant in the first instance to apprehend the defen- dant ; and in every such case the matter of such information shall be substantiated by the oath or affirmation of the infor- mant, or bv 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 offense only, and every complaint or information may be laid or made by the complainant or informant in person, or by his counsel or at- torney, or other person authorized in that behalf; and must disclose upon the face of it some offense, neglect, or default, (/) See Sweetman v. Guest, post. 1 88 THE LAW OF TORTS. [Ch. XV. into which the magistrate has authority to inquire, and re- specting which he has jurisdiction to adjudicate, {m) When a warrant is intended to be issued on the strength of the information, the information must, in order to give the justice jurisdiction in the matter, disclose a complaint about something that the justice has authority to inquire into 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 offense within his cogni- zance, is sufficient to give the magistrate jurisdiction over the charge and the person charged, although the informa- tion 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 jail upon the strength of such an information, amounts at the utmost to no more than an error in judgment on the part of the magis- trate, for which, if acting within his jurisdiction, he is not liable, {it) But the information must impute a criminal offense within the jurisdiction of the magistrate, and not a mere civil wrong, in respect of which he has no jurisdiction, {p) 978. Of the time within which the information or complaint must be laid. — By s. 1 1 , 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 informa- tion 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 offense, 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 limita- tion 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. " All that is matter of defense, and need not be noticed in the conviction." (/>) " Such " com- plaint refers to the provisions of s. 8, and is limited to cases nentioned in that section, viz., orders for the payment of (ni) Lawrenson v. Hill, lO Ir. Com. (k) Cave v. Mountain I, M. & Gr. 257. Law Rep. 1S5. Reg. v. Scolton, 5 Q. B. {0) Lawrenson v. Hill, supra. tgg. Peiham, In re, 5 H. & N. 30. (/) Wray v. Toke, 12 Q. B. 507. Sec. I.] TRESPASSES IN EXECUTION. 189 money. It does not, therefore, refer to warrants of distress for non-payment of rates, {q) 979- Proceedings upon information or complaint. — By the same statute, provision is made for the service of the sum- mons and for the proof of service thereof, and (s. 2) for the issue of a warrant for the apprehension of the party sum- moned, in case of his non-appearance, according to the exigency of the summons ; and also for the issue, in the first instance, in certain cases, of a warrant for apprehending the person against whom the information has been laid, and bringing him up to answer thereto, and to be dealt with according 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 wit- nesses, if) and to issue warrants for the apprehension of par- ties 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 offense directs the issue of a summons, and gives the party summoned a certain time to appear and plead, there will be a clear want of jurisdiction, if the justices proceed to hear the complaint before the ex- piration of the full period allowed, {t) There must be some evidence before the magistrate of ■ the commission of the particular offense charged in the in- formation or complaint, in order to justify a conviction upon it. (?0 ' If a person is summoned before a magistrate for an offense under a particular statute, and appears to answer tiie charge stated in the summons, he can not be lawfully con- victed on a charge, although an analogous one, under a dif- ferent statute ; {v) nor, if the evidence fails to subsbantiate the particular charge specified in the summons, can the summons (q) Sweetman v. Guest, L. R., 3 Q. B. {t) Mitchell v. Foster, I2 Ad. & E. 475. 262. («) Kirkin v. Jenkins, 32 Law J., M (r) II & 12 Vict. c. 42, s 16 ; 11 & 12 C. 141. Sherborn v. Wells, 3 B. & S. Vict. c. 43, s. 7. 784. Evans v. Botterill, lb. 787. (j) 24 & 25 Vict. u. 97 s. 62 ; II & 12 (z/) Reg. v. Biickhall, 33 Law J., M" Vict. c. 43, s. 13. C. 156. ' Com. V. Ward, 4 Mass. 497 ; Ex parte Branigan, 19 Cal. 143. 190 THE LA W OF TORTS. [Ch. XV. be altered or amended so as to alter the nature of the offense originally charged, and to answer which the party has appeared ; (w) a magistrate can not justify a commitment for one offense by a conviction for another and different offense ; {x) but if the accused party or his attorney appears before the magistrate and cross-examines the witnesses, and makes no objection to his proceeding until after the case for the prosecution has closed, he can not then object to the hearing and adjudication on the ground that no information had been laid, or that the accused had not been duly sum- moned to answer the particular charge, {y) Magistrates can not give themselves jurisdiction by voluntarily shutting their eyes to one part of the charge and adapting it to a charge of some other offense, for the purpose of giving themselves jurisdiction, (z) Every accused person must of course be heard in his own defense before he can lawfully be convicted, {a) 980; Unlawful proceedings of justices when there is no infor- mation or complaint before them. — Magistrates have no jurisdic- tion 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 as- saulting party bound over to keep the peace, and the magis- trate's, finding that an assault had been committed, proceeded to deal with the assault by summary conviction, notwithstand- ing a protest by the complainant against their deciding on the assault, it was held that the justices had acted without any jurisdiction 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 convic- tion was made absolute, in order that the conviction might be no bar to ulterior proceedings by indictment or by action (^) {w) Martin v. Pridgeon. i Ell. & Ell. (z) "Thompson, In re, 6 H. & M 193 778 ; 28 Law J., M. C. 179. 30 Law J., M. C. 19. (x) Rogers v. Jones, 3 13. & C. 412. (a) Cooper v. Wandsworth Board, &c, (j)') Turner v. Postmaster-Gen., 34 32 Law J., C. P. 185 ; post, EXECUTION. 197 for example, exercise their discretion as to the granting or withholding a distress-warrant to enforce payment of a rate, the existence of a valid rate and the legal liability to pay on the part of the person distrained upon, are essential to the magistrate's exemption from liability, unless the rate is a poor- rate, and they can shelter themselves under that part of s. 4 of II & 12 Vict. c. 44, which expressly exempts justices from actions in respect of the issue of warrants of distress for poor- rate against persons not liable to pay the rate, {u) So when the discretion exercised by the magistrate respects the issu- ing of a distress-warrant to enforce the payment of money ordered to be paid by some third person, the validity of tho order, and the legal liability to pay the money, are a prelim inary condition to the magistrate's having any authority to act at all in the matter, {x) ' {i/) Pedley v. Davis, 30 Law J., C. P. (x) Newbould v. Coltman, 6 Exch. 378. 201 ; 20 Law J., M. C. 149. V. Inskip, I N. J. 231. But where no objection is talcen to the jurisdiction, but the party allows the justice to proceed to judgment, he is estopped from attacking the judgment upon tliat ground. Bellows v. Sackett, 15 Barb. (N. Y.) 56. ' Where tlie law invests a justice of the peace with a discretionary power, he is not liable for an honest exercise thereof. But if he acts corruptly or fraudu- lently, he is liable ; Tyler v. Alfred, 38 Me. 53 ; Bevand v. Hoffman, 18 Md. 479; Halcomb v. Cornish, 8 Conn. 375 ; Ambler v. Church, i Root (Conn.) 211 ; Howe v. Mason, 14 Iowa, 510; Lester v. Governor, 12 Ala. 624; Downing v. Herrick, 47 Me. 462 ; Little v. Moore, 4 N. J. 74 ; Gregory v. Brown, i Bibb. (Ky. ) 28 ; so when he acts beyond his jurisdiction ; Johnson v. Tompkins, I Bald. (U. S.) 571 ; Inos V. Winspear, iS Cal. 397; Reville v. Petit, 3 Met. (Ky.) 314; Ely V. Thompson, 3 A. K. Mar. (Ky.) 76 ; Wise v. Withers, 3 Cranch. (U. S.) 331 ; or corruptly or maliciously ; Garfield v. Douglass, 22 111. 100 ; Kennedy v. Ferrel, Hard. (Ky.) 490 ; or negligently in the performance of a ministerial duty, he is liable for all the consequences of his acts ; State v. Flinn, 3 Blatchf. (Ind.) 72; ex parte Neal, 14 Mass. 205 ; Houghton v. Swarthout, i Den. (N. Y.) 589 ; Kerns v. Shoe- maker, 4 Ohio, 331. But, where a justice is made the judge of the sufficiency of bail, he is not liable for an error of judgment whereby insufficient bail is taken ; Tyler v. Alford, ante; Chickering v. Robinson, 3 Cush. (Mass.) 543 ; Jordan v. Hannon, 49 N. H. igg ; but he is liable for refusing to accept a recognizance for an appeal when offered in time, and wherj an appeal is allowed by law, not because the recognizance was not sufficient, or in due form, but because it was too late to appeal ; Guenther v. Whiteacre, 24 Mich. 504 ; Hardman v. Jordan, C. & N. (N. C.) A'yi. : but contra, see Jordon v. Hanson, ante; or refusing an appeal upon im- proper grounds ; Levy v. Inglish, 4 Pike (Ark.) 65 ; Handison v. Jordon, ante; Tompkins v. Sands, 8 Wend. (N. Y.) 462 ; so he is liable for neglecting to return a recognizance taken by him within the time prescribed by law ; Ex parte Neal, ante; Cairns v. Sheets, 4 Blatchf (Ind.) 275 ; Sherwood v. McKinney, 5 Whart. (Penn. 435 ; or for negligently entering a recognizance so that it is inefifectual j 198 THE LAW OF TORTS. [Ch. XV. 985. 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 ne- cessary to empower them to do the ministerial act, and have exercised their judgment upon such facts prior to the perfor- mance of the ministerial act. Thus, where an Act of Parlia- ment empowered the owners, occupiers, &c., of abbey-lands to make a rate for certain purposes 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 satisfaction of the defendant, who issued a distress-warrant, under which the plaintiff'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 ot the warrant. The statute, it was observed, gave the defendant no power to try the question of the plaintiff's claim from ex- emption 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 be- gin by inquiring whether the rated owner had refused to pay, not whether the rate was valid, and his inquiry and deter- Kerns v. Shoemaker, ante ; or for an erroneous return upon an appeal ; Tloughton V. Swarthout, ante ; or for erroneously entering a satisfaction of a judgment Madisett v. Gavenor, 2 Blackf (Ind.) 135 ; or receiving counterfeit or de- preciated currency in satisfaction of a judgment ; Welch v. Frost, i Mich. 30 ; or for a false return to a certiorari ; Kidz v. Suckridev, 14 Johns. (N. Y.) igs ; or for refusing to grant an adjournment upon improper grounds, as for refusing to pay his fees; People 1. Calhoun, 3 Wend. (N. Y.) 420; and generally in all cases where his action is corrupt or fraudulent ; State v. Flinn. ante ; or where in the discharge of ministerial duties he is chargeable with ignorance, neg* ligence, malice, or fraud ; Benard v. Hoffman, ante; McDowell v. Buffam, 31 How, Pr. (N. Y.) 154 ; Bigelow v. Stearns, 19 Johns. (N, Y.) 39 ; Welch v. Frost, I Mich. 30. Sec. I.] TRESPASSES IN EXECUTION. 199 mination had reference to the discharge of a mere ministerial function, and were not of a judicial character, (jj/) So, where an Act of Parliament, 2 & 3 Vict, c, 84, s. 1 1 provided that, when any contribution from overseers of moneys required by a board of guardians should be in arfear, it should be lawful for 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 contribu- tion, 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 re- quire 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 act at all in the matter. {£) ' 986. Convictions upon by-laws. — If a corporation or a local board exceed their powers in making a by-law, a justice ex- ceeds 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 pur- pose of bringing up and quashing the conviction, {a) If the validity of a by-law, and the jurisdiction of a justice to con- vict upon it, depend upon the existence or non-existence of a particular fact, the justice can not give himself jurisdiction by {y) Pedley v. Davis, siipra. May, Ex (z) Newbouid v. Coltman, 6 Exch. parte, 2 B. & S. 426 ; 31 Law J., M. C. 189 ; 20 Law J., M. C. 149. 161. Reg. V. Higginson, 2 B. & S. 471. (a) Reg. v. Wood, 5 Ell. & Bl. 49. Pease v. Chaytor, supra. ' Modisett v. Gavenor, 2 Blackf. (Ind.) 135 ; Howe v. Mason, 14 Iowa, 510 ; Ambler v. Church, i Root (Conn.) 211 ; Ex parte Neal, 14 Mass. 205 ; Price v. Haistead, 3 Mo. 461; Houghton v. Swarthout, i Den. (N. Y.) 589; Kerns v. •Shoemaker, 4 Ohio, 331 ; Inos v. Winspear, 18 Cal. 397 ; Flack v. Harrington, i 111. 165; Spencer v. Perry, 17 Me. 413; Kennedy v. Terrell, Hard. (Ky.) 490 j Jones V. Wenden, 12 Cush. (Mass.) 543 ; Tyler v. Alford, 38 Me. 530 ; Noxon v, Hill, 2 Allen (Mass.) 215 ; Welch v. Frost, i Mich. 30. 200 THE LAW OF TORTS. [Cii. XV 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 evi- dence before the justice on which he was warranted in com- ing 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. (iJ) 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 war- ranting him in coming to the conclusion that he had jurisdic- tion in the matter, and he adjudicates accordingly, his deci- sion can not be impugned on the ground that there were other facts before him from which he ought to have drawn a con- trary conclusion, {d) It is sufficient to support a conviction for a penalty under a by-law made by a railway company pursuant to the Railway Clauses Consolidation Act, 8 & 9 Vict. c. 20 (ss. 108 -III), to prove that a copy of the by-laws was affixed at the stations were the defendant entered and where he left the train, although the iioth 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 pub- lished in manner aforesaid." {e) Such by-laws are public documents within the meaning of the 14 & 15 Vict., c. 99, s. 14, and therefore provable by certified copy under that Act. {e) 987. Of the drawing up bf convictions and orders. — (/) If the justice or justices convict or make an order against the {b) Bailey's case, 3 Ell & Bl. 618. {d^ Bailey's case, supra. Reg. V. Dickenson, 26 Law J., M. C. (e) Motteram v. East. Co. Rail., 7 C, 204. B., N. S. 58 ; 2g Law J., M. C. 59- (c) Canjpbell, C.J., and Crompton, J., (/) See ante. Reg. V. Wood, 5 Ell. & Bl. 57, 58. Sec. I.] TRESPASSES IN EXECUTION. 201 defendant, a minute or memorandum thereof must then be mado (11 & 12 Viot. c. 43, s. 14), and the conviction or order afterwards drawn up in form, and lodged with the clerk 0/ the peace, to be filed among the records of the quarter-ses- sions. Any omission by the clerk of the justices to perform this duty may render the justices liable to have proceedings taken against them. (£) 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 magistrate. {Ji) 988. Disclosure of the authority and jurisdiction 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 authority on the face of them, by direct averment or reasonable intendment. Not so the^ process of the superior courts, acting by the authority of the common law." (?) Every order of justices, therefore, should show on the face of it a complaint and an adjudication thereon. (/) " I 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) ' (^) Hayward, In re, 3 B. & S. 546: Ell. 527. Lindsay v. Leigh, II Q. B. 32 Law J., W. C. 8g. 465. (k) Rlassey v. Johnston, 12 East, 81. {k) Reg. v. St. George, Bloomsbury, (j) Gosset V. Howard, 10 Q. B. 453. 24 Law J., M. C. 49. (j) Labalmondiere v. Frost, I Ell. & ' The jurisdiction of a justice must appear upon the face of the record, and will not be presumed. In Bridge v. Ford, 4 Mass. 641, PARSONS, C.J., in delivering the opinion of the court, said : " It does not appear from any part of the record, that the justice had any jurisdiction in the cause referred to in the recognizance. We can not conjec- ture in what manner the process was instituted, or what was the cause of it, or whether it was a cause within the jurisdiction of the justice. Ata/ ive caii not pre. iumc anything in favor uf the jurisdiction of an inferior magistrate , as it is not gen- eral, but s:i''-'cn and limited by statute. The justice ought to have recited so much 202 THE LAW OF TORTS. [Ch. XV 989. Description of the offense or subject-matter of complaint, — The nature of the offense 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 words of the statute, creating it. (/) Where an Act of Parliament made the willful misapplication of parish money by a relieving officer a penal offense, to be inquired into and adjudicated upon by justices, and the in- formation charged merely a misapplication of the parish money, not saying that it was willful, it was held that it did not charge any offense cognizable by the justices, and that the conviction founded upon it could not be supported, (iti) And where an Act of Parliament made it a penal offense, 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 say- ing " knowingly," it was held that there was no offense charged of which the justices, had authority to take cogni- zance, {ri) A description, in the conviction, of the offense, in the terms 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 offense than 'is i :ated in express terms upon the face of the statute, is not a sufficient description. (rded by this statute, in) and has the period of six days after the demand of his authority for the produc- tion 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, how- ever, 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, (p) This statute is confined to ac- tions of tort, (/) and the officer, in order to be entitled to 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 sta- tute, {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 protec- (m) Clark v. Woods, 2 Exch. 405. (/) Irving v. Wilson, 4 T. R. 485. («) Pedley v. Davis, 30 Law J., C. P. (V) Bell v. Oakley, 2 M. & S. 250 374. Postlethwaite v. Gibson, 3 Enp. 220 {p) Jones V. Vaughan, 5 East, 447. Galliard v. Laxton, ante. 224 THE LAW OF TORTS. [Ch. XV. tion. {f) Neither can he claim the benefit of the statute in cases where, when acting under a search-warrant, he has seized and carried away articles not mentioned in the war- rant, 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 ; {t) nor if he ex- ceeds the authority givea him by the warrant and commits any excess, such as remaining longer in a dwelling-house than he was legally authorized to remain, or breaking open aoors and windows which he was not authorized 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 magis- trate 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) By the ii & 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 exe- cute a warrant out of his own district, {z) A warrant of dis- tress for rates directed to two persons for execution, may be executed by one of them alone, {a) 1016. Excess of authority on the part of constables and offi- cers — Handcuffing unconvicted prisoners. — If a constable abuses the legal authority conferred upon him by detaining a pris- oner an unreasonable time without taking him before a mag- istrate, or by unnecessarily handcuffing him, he becomes a trespasser ab initio, and can not protect himself under the warrant. A constable or peace-officer has no right to hand- cuff an unconvicted prisoner unless he has attempted to es- cape, or except it be necessary in order to prevent his es- {r) Milton v. Green, 5 East, 238. Homicide, p. 319. \s) Crozier v. Cundey, 6 B. & C. 232. (x) Atkins v. Kilby, 11 Ad. & E. 784. {t) Money v. Leach, 3 Burr. 1768. Price v. Messenger, 2 B. & P. 158. Reg. Kay V. Grover, 7 Bing. 312 ; 5 M. &. P. v. Davis, 30 Law J., M. C. 159. 145, Hoye V. Bush, i M. & Gr. 775 ; 2 {y) Read v. Cocker, 13 C. B. 859. N. R. 02. \z) Gimbert v. Coyney, M'Clel. & Y. '«) Peppercorn v. Hofman, 9 M. & W. 469. Bell V. Oakley, 2 M. & S. 259. (a) Lee v. Vessey, 25 Law J., Excl bir Michael Foster's Discourse of 271, Sec. III.] REMEDIES FOR WRONGS. 225 caping. " Such a degree of violence and restraint," observes Bayley, J., " upon the person can not be justified, even by a constable, unless he makes it appear that there are good special reasons for his resorting to it." {b) 1017. 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 author- ized to search, or uses any unnecessary violence in the exe- cution 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. REMEDIES ■ FOR WRONGS DONE UNDER COLOR OF CONVIC- TIONS AND WARRANTS OF JUSTICES. 1018. Replevin of chattels distrained under warrants of jus- tices. — " 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 all cases where goods are improperly taken ; (^) and I find no satisfactory authority to show that it will not lie where goods are im- properly taken under a warrant of a justice of the peace. In some cases, no doubt, the court will interfere to prevent a replevin, to save its process from being defeated. The rule is correctly stated in Chief Baron Gilbert's treatise on Re- plevin, 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 exe- cution, and would punish the sheriff by attachment.' But {V) Wright V. Court, 6 D. & R. 625 ; 4 9 D. & R. 224. Burn's Justice, SeArch- B. & C. 596. Griffin v. Coleman, 4 H. WARRANT. & N. 265 ; 28 Law J., Exch. 134. () Fernley v. Worthington, I M. & («) Jorj' v. Orchard, 2 B. & P. 41. Gr. 491 (a) Atkins v. Kilby, 11 Ad. & E. 785. 238 THE LA W OF TORTS. [Ch. XV. 1039. 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 two pence as damages for such imprisonment, or any costs of suit what- ever, if it is proved that he was actually guilty of the offense of which he was convicted, 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 pun- ishment than that assigned by law for the offense of which he ivas convicted, or for non-payment of the sum he was or- dered to pay. If a magistrate has committed the plaintiff to prison in a case in which he has no jurisdiction, and the convic- tion is quashed, 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 all such expenses as are reasonably necessary to enable the plaintiff to procure his liberty ; but the magistrate is not re- sponsible for any unnecessary or excessive violence on the part of the officers executing the warrant. (5) (B) Mason v. Barker, i C. & K. icx), As to damages recoverable in actions for false imprisonment, see ante. Sec. I.] INJURIES BY STATUTE. 239 CHAPTER XVI. OF INJURIES FROM THE EXERCISE OF STATUTORY POWERS — STATUTORY COMPENSATIONS FOR INJURIES AUTHOR- IZED BY STATUTE. Section I. Of injuries from the exer- cise of statutory powers. 104O Exemption of persons from personal liability in respect 1050. of things done under statutory authority. 1041. Injuries from the negligent exe- cution of statutory powers. 1051. 1042. Nuisances from the neghgent working of railways. 1052. 1043. Duties and responsibilities of boards of public works, IO53. trustees and commissioners — Contractors and workmen acting in the exercise of sta- 1054. tutory powers. 1044. Surveyors of highways and county bridges. 1045. Effect of clauses in particular Section statutes exonerating persons from all personal liability in respect of things done in the bona fide execution of the 1055. statute. 1046. Right of commissioners, trustees 1056. and public officers to indem- nify themselves in respect to the costs and expenses they 1057. incur out of the public funds 1058. they are authorized to admin- ister. 1047. When expenses incurred through 1059. blunders or negligence may be charged upon a public or trust fund. 1048. Creation of nuisances in the bona fide exercise of statutory 1060. powers. 1049. Pollution of streams and inju- ries to docks, wharfs, towing- paths, &c., in the exercise of statutory powers. Creation of nuisances in the ex- ercise of the statutory powers contained in the Towns Im- provement Clauses Act. The Metropolis Local Manage- ment Act. Of the power to take lands and streams for public purposes- Licenses to enter upon iand authorized to be taken for public works. Seizure and detention of goods by custom-house officers act- ing in the execution of statu- tory powers. II. — Of statutory remedies for the recovery of compensa- tion for injtiries author- ized by statute. Injuries establishing a right to statutory compensation. Of ascertaining the amount of statutory damage by arbitra- tion. Jurisdiction of the arbitrator. Damages recoverable before justices of the peace and not by action. Of the statutory remedy for the recovery of compensation under the provisions of the Lands Clauses and Railway Clauses Consolidation Acts. Of statutory compensation to tenants and occupiers of lands taken for public works 240 THE LA W OF TORTS. [Ch. XVI. I06I. Notices by claimants of the nature and extent of the in- jury sustained, and of the 1075. amount of compensation re- quirt i. 1062. Assessment of damages. 1076. 1063. Future damages. 1064. Assessment of damages to which the claimant is not legally en- 1077. titled — Removal of the_ in- quisition by certiorari. 1065. Recovery of the amount of com- pensation assessed by a jury. 1078. 1066. Declaration in actions for rail- 1079. way compensations. 1080. 1067. Pleadings — Defenses — Traverse of the injury to the land. 1081. 1068. Remedy for subsequent unfore- seen damages. 1082. 1069. Remedy in cases of severance. 1070. Compulsory purchase of house by railway company. 1083. Section III. — Remedies by action and 1084. by injunction in re- spect of injuries from the negligent doing of things authorized to be done by statute. 1085. 107 1. Limitation of actions in respect of things done under local and personal statutes. 1072. Accrual of the cause of action and commencement of the period of litigation. 1086. 1073. Of notice of action. 1074. Notice of action to gas com- panics and trading corpora, tions and their officers. Notice of action to toll and tax- collectors and revenue offi. cers. Notice of action against con tractors, &c., under local boards of health. Notice of action against sur- veyors and persons acting in execution of the highway acts. Tender of amends before ac- tion. Parties to be made defendants Pleadings — Plea of not guilty. Plea of tender of amends be- fore action. Pleas of justification under the authority of an act of parlia- ment. Evidence at the trial — Proof of notice of action. Power of the court of chancery to grant an injunction to prevent unnecessary injury from the execution of statu- tory powers. Injunction to restrain nuisances created by public bodies act- ing in the exercise of stat- utory powers. Injunction to prevent misuse by companies and public bodies of land acquired by them un- der statutory authority. SECTION I. OF INJURIES FROM THE EXERCISE OF STATUTORY POWERS. 1040. Exemption of persons from personal liability in re- spect of things done under statutory authority. — An action will not lie on behalf of a plaintiff who has sustained injury from th execution of powers and authorities given by an Act of Parlia Sec. I.] INJURIES BY STATUTE. 241 ment, those powers being exercised with judgment and cau- tion, {a) But if the statutory powers are exceeded, or are not strictly pursued, {b) 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 within the statute, it is clear that no compensation can be afforded for any damage sustained thereby, except so far as the statute itself has pro- vided 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 railway company to lay down a railway alongside a public highway, it was held that the legislature must be presumed to have contemplated the possibility that the railway would be a nuisance to persons using the highroad, and that such persons m^ust submit to the inconvenience necessarily result- ing from the working of the railway, {d ) ' And where a rail- (a) Ld. Truro, Lond. and North West. 562 ; 33 Law J., Q. B. 305 ; 35 Id. 45. Rail. Co. V. Bradley, 3 Ma£. & G. 341 ; 6 {c) Duncan v. Findlater, 6 CI. & Fin. Rail. Cas. 551. Caledonian Rail. Co. v. 908. Ogilvy, 2 Macq. So. App. 246. Boulton (d) Rex v. Pease, 4 B. & Ad. 42. But V. Crowther, 2 B. & C. 706. not to unnecessary annoyances ; Man- {&) Brownloiv v. Metrop. Board, &c., Chester and Altr. Rail. Co. v. Fullarton, 31 Law J., C. P. 140. R. V. Darlinci'.on 14 C. E., N. S. 54. Local Board, &c., 5 B. & S. 515 ; 6 Id. ' The right t6 take private property for public purposes, is a power necessarily incident to all governments, and, unless there is some check or limitation imposed by constitutional provision, it may be exercised without giving any compensation for the property so taken. In England the power of Parliament is omnipotent, and it may give the right to take private property for public uses without compensation; but in this country both the national and state governments are, by constitutional provisions, limited in the exercise of this power, and can not authorize the taking of private property for a/ty purpose without providing for the payment of a just and reasonable compensation therefor. Nor can it authorize the taking of private prop- erty for any but public purposes. Weir v. St. Paul R. R. Co., t8 Minn. 155 ; R.R. Co. V. Greeley, 17 N. H. 47 ; Hall v. Boyd, 14 Ga. I ; Lance's Appeal, 55 Penn. St. 16 ; Charles River Bridge Co. v. Warren Bridge Co., 7 Pick. (Mass.) 344; Dunham V. Williams, 36 Barb. (N. Y.) 136; Stockton, &c., R. R. Co. v. Stockton, 41 Cal. 147; County Commis. v. Humphrey, 47 Ga. 565 ; Matter of Commis. of Washington Park, 52 N. Y. 131 ; Osborn v. Hart, 24 Wis. 89. The legislature can not, even by providing the fullest compensation therefor, give authority to take private property iox private uses, nor is the legislature the final judge as to what is, and what is not, a public use. Osborn v. Hart, ante'; Sadler v. Langham, 34 Ala. 311; Le Coul v. Police Jury, 20 La. An. 30S ; Memphis Freight Co. v. Memphis, 4 Cald. (Tenn.)4r9; Vanhorne's Lessee v.Dorrance, 2 Dallas (U. S.) 312. It can not authorize the taking of the property of one person for the bene6t of another. Coster v. Tide Water Co., 3 Green. (N.J.) 54; Nesbitt v. Trumbo, II. — 16 242 THE LAW OF TORTS. [Ch. XVI. way 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 {/) Caledonian Rail. Co. v. Ogilvy, 2 Macq. Sc. App. 229. 39 111. 10 ; Tyler v. Beacher, 44 Vt. 649 ; Crear v. Crossley, 40 111. 175. In the first instance, the legislature is the judge as to whether the purpose for which land is authorized to be taken is a public purpose, but its determination is not conclusive, and it is the province of the courts to say, whether in fact it is So. Sweet v. Hurl- burt, 57 Barb. (N. Y. ) 312 ; Coster v. Tide Water Co., anle ; Horton v. Squakham & Freehold Marl Co., 17 Amer. Law Reg. 179; Tyler v. Beacher, ante ; Talbot v. Hudson, 2 Mass. 417 ; Fleming's Appeal, '65 Penn. St. 444. But as to the necessity for the taking, except where a different provision is made by the constitution, the legislature is the sole judge, and its action, in that respect, is final and conclusive. De Varaigne v. Fox, 2 Bl. C. C. (U. S.) 95 ; Powers v. Bergen, 6 N. Y. 358; Tyler v. Beadier, ante ; Talbot v. Hudson, ante ; Coster v. Tide Water Co., ante. As to what in law, within the meaning of the several state constitutions, is a tuhlic use, is, in a great measure, dependent upon the facts and circumstances of each case. No definite and fixed rule, applicable to all cases, can be given, but it may be said that, where the benefit or advantage is mainly restricted to a few persons, or to a body of persons, and there is no corresponding benefit or advantage therefrom derived by any considerable number of people, or to any considerable Bection of country, the purpose is /in'z/afc, and can not be upheld as within the con- templation of the constitution. Thus, where the legislature authorized the owner of a grist-mill to flow the lands of supra riparian owners for the benefit of his mill, it appearing that the owner of the mill conducted the business for his own benefit and profit, and, while he ground all grain brought to his mill for that purpose, yet was under no obligation to grind grain brought to him, and was at liberty to receive or refuse it, as he chose, it was held that the act was unconstitutional, as the purpo>e could not in any sense be said to be public. Tyler v. Beacher, 44 Vt. 649. If, however, a legal obligation had been imposed upon the mill owner to receive and grind all grain offered to him for that purpose, and the mill had been a convenience and a benefit to a considerable number of people and to the neighborhood, although not a convenience or beaefet to all the public, yet the rule would probably hav» Sec. I.] INJURIES BY STATUTE. 243 expressly contemplates the creation of a nuisance, no action will lie. Where, therefore, a canal company were empow- ered to take the water of a certain brook, which was then pure, but subsequently 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. ( /) It has been held, that if a canal company has been au- thorized 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 premises, without any negligence or breach of duty on the part of the canal company, the com- pany will not be responsible in damages for the injury ; {g) (f) Reg. V. Bradford Navigation Co., (g) Whitehouse v. Birm. Can. Co., 27 34 Law J.. Q. B. igl. Law J., Exch. 25. been different, as it has repeatedly been held that acts allowing theflowage of lands fnr mill purposes, is a public use, and as such are valid to confer tlie right. Thien V. Voegiland, 3 Wis. 461 ; Olmstead v. Camp, 33 Conn. 532 ; Boston, &c., Mill Dam V. Newman, 12 Pick. (Mass.) 467 ; Harding v. Goodlett, 3 Yerg. (Tenn.) 41 ; Hazen v. Es^e.K Co., 12 Cu^h. (.Mass.) 47S ; Com. v. Essex Co., 13 Gray (Mass.) 249. The rule seems to be, as nearly as it can be definitely stated, that, in order to amount to s. public use, within the letter and spirit of the constitution, the use must be such as in its nature and effect concerns the whole community, as distinguished from particular individuals, and that, while the immediate and direct result may be to enhance the private gains and personal advantage of certain individuals, yet if, indirectly, and as a natural result, the community as a whole is benefited thereby, although all are not benefited, and the benefit is not equal in degree, the purpose is public. But the purpose must reach beyond mere private gain or individual advan- tage, and confer some benefit or advantage upon the public, as such, as a result of the exercise of the right. The benefits need not be direct ; it is enough if they are the natural result, although indirect and consequential, and affect the general public, altliough mainly confined to a particular community or neighborhood, as by de- veloping its resources, opening up new avenues for business, increasing its business facilities, promoting industrial enterprises and the productive power of the locality, or as tends to increase its population, enhance its convenience, or in any sensible measure increases its prosperity or importance. Gilmer v. Lime Point, 18 Cal. 229 ; Matter of Bloomfield Gas Co., 63 Barb. (N. Y.) 437 ; Talbot v. Hudson, 82 Mass. 417 ; Hayes v. Risher, 32 Penn. St. l6g. Thus, the legislature may authorize the taking of private property for the con- stniction of railroads and lateral lines thereof. Hays v. Risher, 32 Penn. St. 169 ; United States v. Railroad Bridge, 6 McLean (U. S.) 517 ; Wills v. Somerset, &c., R. R. Co., 47 Me. 345 ; Scudder v. Trenton Del. FalL Co., 1 N. J. 694 ; Arnold v. Hudson R. R. R. Co., 49 Barb. (N. Y.) 108. For the laying out of highways. Shaver T. Starett, 4 Ohio St. 494. Across railroad tracks, even without ccmpensiition. Albany, &c., R. R. Co. v. Brownell, 24 N. Y. 345. For the laying out and grading public streets, and may impose the expense on the lands contiguous thereto 244 THE LAW OF TORTS. [Ch. XVI, 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 purpose, {h) 1041. Injuries from the negligent 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 author- ized 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 suitable (Ji) Lawrence v..Gt. North. Rail. Co., Co., 31 Law J., Exch. 121. Barber v. 16 Q. B. 653 ; 20 Law J., Q. B. 293. Nottingham and Grantham Rail. Co., 33 Bagnall v. Lond. & North- West. Rail, Law J., C. P. 193. Trustees v. Berry, 2 J. J. Marsh. (Ky.) 483 ; Walsh v. Matthews, 29 Cal. 123 ; Emery v. San Francisco Gas Co., 28 Id. 345. For the erection of bridges for pub- lic use. Charles River Bridge v. Warren Br. Co. ; United States v. Railroad Bridge, 6 McLean (U. S.) 517; Philadelphia v. Field, 58 Penn. St. 320. For re- claiming swamp lands. Columbia, &c., Co. v, Mier, 39 Mo. 53. For the erection of light-houses. Gilmer v. Lime Point, 18 Cal. 229. Wharves, piers, warehouses, &c. Stevens v. Walker, 15 La. An. 577 ; Eddings v. Seabrook, 12 Rich. (S. C.) 504. For the laying of aqueducts to supply water to a town. Cringh v. Harris- burgh, I Penn. St. 132. For rendering a river navigable. Canal Appraisers v. People, 17 Wend. (N. Y.) 571 ; Hinde v. Navigation Company. For improving a great mill power. Hazen v. Essex Co., 12 Cush. (Mass.) 475. For turnpikes with toll-gates. Att.-Gen. v. Germantown, &c., Road, 55 Penn. St. 466. For building and maintaining canals. Hooker v. Canal Co., 14 Conn. 146. For forts. Gilmer V. Lime Point, ante. For public school-houses. Williams v. School Dist., 33 Vt. 271. For the improvement of harbors. Owners v. Mayor of Albany, 15 Wend. (N. ■ Y.) 374. For widening and improving streets. Parks v. City of Boston, 15 Pick. (Mass.) 19S. For laying gas pipes to supply a town with gas. Matter of The Bloomfield Gas Co., 63 Barb. (N. Y.) 437. And generally for any and all purposes of public improvement, benefit, or advantage. And, as has been heretofore stated, although primarily, the object of the power sought to be exercised is private advan- tage and gain. Yet, if the effect of its exercise will tend to purposes of public utility and will result in essentially promoting public interests or enhancing its convenience, it is not prohibited by the constitution, or beyond the power of the legislature to confer. The question as to what constitutes 2. public use, within the meaning of such constitutional provisions, was very ably considered by BlGEl.ow, C, J., in Talbot v. Hudson, cited ante, and his views upon this point are so clear and so correct — in my judgment — that I have concluded to give them here. In that case Sec. I.] INJURIES BY STATUTE. 245 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 re- sponsible for the injury in an action for negligence, {i) 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 (j) Manley v. St. Helen's Canal and Rail. Co., 2 H. & N. 840 ; 27 Law J., Exch. 164. the legislature of Massachusetts had authorized the removal of a dam belonging to the Middlesex Company from the Concord river in Bilerica, in order to redeem and reclaim the lands bordering on the stream about the dam from overflow occasioned by the maintenance of the dam. It was insisted that the provisions of the act were inoperative to confer the power, because the purpose thereof was not a public pur- pose, and the removal of the dam was sought to be restrained. In denying the in- junction and sustaining the validity of the act, he said : " The ultimate purpose which the legislature had in view in passing the act under consideration, does not distinctly appear by the terms of the act itself. But it may be inferred from the title of the act and the general scope of its provisions, that it was intended to re- lieve the meadows lying on the borders of Concord and Sudbury rivers, chiefly in the towns of Lincoln, Concord, Sudbury, and Wayland, from large quantities of water with which they are constantly overflowed, and which are supposed to be set back by the dam owned by the plaintiffs. . . In many cases there is no difficulty in determin- ing whether an appropriation of property is for a public or a private use. If land is taken for a fort, a canal, or a highway, it would clearly fall within the first class ; if it is transferred from one person to another, or to several persons, solely for their peculiar benefit and advantage, it would as clearly come within the second class. But there are intermediate cases where public and private interests are blended together, in whicli it becomes more difficult to decide within which of the two classes they may properly be said to fall. . . In the present case there can be no doubt that every owner of meadow land bordering on these rivers will be directly benefited to a greater or less extent by the reduction of the height of the plamtiff"'s dam. The act is, therefore, in a certain sense, for a private use, and enures directly to the advantage of such owners. But this is by no means a decisive test of its validity. Many enterprises of the greatest utility are productive of great and immediate benefits to individuals. A railroad or canal m.ay largely enhance the value of pri- vate property, situated at or near its termini ; but it is not for that reason any the 246 THE LAW OF TORTS. [Ch.XVI, Local Improvement Act, and without any neglect or mis- management of the defendants otherwise than by their work- man, and that the workman employed by them was well skilled and qualified, it was held that the plea was no answer to the action, {j) If persons authorized by statute temporarily to close a public highway 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 householder or shopkeeper sustains a par- ticular injury beyond what is sustained by the public at large ; if he loses his customers, or his trade is injured by the unau- orized obstruction, there is a remedy by action for dam- ages, {k) Where a railway company was authorized to make an em- (J) Scott V. Mayor, &c., of Manchester, 2 Sc. 462, 463 ; 2 B. N. C. 381. See as I H. & N. 59 ; 2 H. & N. 204. to this case, Ricket v. Metrop. Rail. Co., (k) Wilkes V. Hungerford Market Co., L. R., 2 H. of L. Ca. 188. less a public enterprise, for the construction of which private property may well be taken. ... It has never been deemed essential that the entire community, or any considerable portion of it, should directly enjoy or participate in an improve- ment or enterprise, in order to constitute a public use, within the true meaning of these words as used in the constitution. Such an interpretation would greatly narrow and cripple the authority of the legislature, so as to deprive it of the power of exerting a material and beneficial influence on the welfare and prosperity of the state. In a broad and comprehensive view, such as has been heretofore taken of this clause of the declaration of rights, everything which tends to enlarge the resour- ces, increase the industrial energies, and promote the productive power of any consider- able number of the inhabitants of a section of the state, or which leads to the growth of towns and the creation of new sources for the employment of private capital and labor, indirectly contributes to the general welfare and the prosperity of the whole comtmmity. It is upon this principle that many of this statutes of this commonwealth, by which private property has been heretofore taken and appropriated to a supposed public use, are founded. Such legislation has the sanction of precedents, coeval with the origin and adoption of the constitution," and he proceeds to enumerate the instances in which such power has been exercised, as for the support and regu- lation of mills, and the creation of large mill powers, in the one instance authorizing the flooding of lands, and in the other a similar power, with the added right of de- stroying other mills and other mill powers even, for the consummation of the object and purpose sought, by a concentration of such power at a particular locality. He then goes on to say : " It is certainly difficult to see any good reason for making a discrimination in this respect between different branches of industry. • If it is law- ful and constitutional to advance the manufacturing or mechanical interests of a section of the state, by allowing individuals, acting primarily for their own profit, to take private property, there would seem to be little, if any, room for doubt as to Sec. I.] INyURIES BY STATUTE. 247 bankment 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 where- of 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 Parliament, and that they are not liable for any consequences which may follow to the damage of the plaintiff" ; and the question is whether the com- pany are protected by their Act ? Here the company might, by executing their works with proper caution, have avoided the injury which the plaintiff" has sustained ; and we think the authority of the legislature . . to promote the agricultural interests of a large territory," and he then proceeds to enumerate instances in which the legislature has by similar acts provided fur redeeming swamp lands, and cites the cases of Cooms V. Burt, 22 Pick. (Ma.^s.) 422, and Day V. Hurlburt, il Met. (Mass.) 321. In the Matter of the Commissioners, &c. of The Central Park, 63 Barb. (N. Y.) 282, it was held that an act which authorized the taking of land for public parks and squares, whether advantageous to the public for recreation, health, or business, or not, was constitutional, and that the taking was for a public use. In the Matter of the Bloomfield Gas Co., 63 Barb. (N. Y.) 437, it was held that the power to exercise the right of eminent domain is not affected by the fact that the corporation upoa which it is conferred acts for its own interests and for purposes of grivate gain, but that the question as to whether it is for a public use, depends upon its effect upon the public, or as to how the public would be affected thereby, if the purposes of the corporaHon are carried out, and that the mere fact that the public benefit contem- plated may be confined to a particular community, does not strip it of the character of a public use. It is sometimes quite difficult to determine what is a taking oi property within the meaning of the constitution, for which compensation must be made. It may be said that, even in cases where the property of an individual is not actually taken, yet, if the exercise of the power operates a partial destruction thereof, or even a dimunutioa of its value, by reason of actual physical agencies, or divests him of actual vested rights, or essentially impairs their enjoyment, or deprives him of their ordinary use, it is a taking of property which the legislature can not authorize without compensation, and in an action for the injury, the legislative grant is no protection, unless the land to which the right or easement attaches, has been actually taken, and the damages duly assessed and paid, as provided by the terms of the act. Hooker v. Canal Co., 14 Conn. 146 ; Glover v. Powell, 10 N. J. 211 ; Cash v. Whit- worth, 13 La. An. 401. Thus, although the land itself is not taken, yet, if by the exercise of the authority conferred by the act an easement is destroyed or materially impaired in its convenient use or value, as a right of access to premises ; Miller v. R. R. Co., 6 Hill. (N. Y.) 61 ; a right of way ; a franchise issuing out of land 248 THE LA W OF TORTS. [Ch. XVI, that the want of such caution is sufficient to sustain the ac- tion." (/) 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 defendants, were bound to keep it. {m) Where a trading company was incorporated by statute for the purpose of man- ufacturing gas, and was authorized to make gas to light the streets of a town, it was held that the statute did not author- ize the company to make gas so as to create a nuisance, and therefore that they were liable, notwithstanding the statute, to an action for damages for making gas so as to create a nui- sance, {n) 1042. Nuisances from then egligent working of railways. — It does not follow that because a railway company is author- ized to carry its railway across or alongside a public carriage- (/) Lawrence V. Gt. North. Rail. Co., 16 Law J , Q. B. loi. Bagiiall v. Lend, and Q. B. 653, 654 ; 20 Law J., Q. B. 293. North-west. Rail. Co. Broadbent v. Imp. Gas. Co., 26 Law J., (?«) Harrison v. Gt. North. Rail. Co., Ch. 281. Blagrave V. Waterworks Co., 33 Law J., Exch. 266. I H. & N. 369. Sutton V. Clarke, 6 {11) Broadbent v. Imp. Gas. Light Co., Taunt. 42. Grocers' Co. v. Donne, 3 Sc. 26 Law J., Ch. 2S0. 357. Brine v. Gt. West. Rail. Co., 31 either by grant or prescription ; Enfield Bridge Co. v. R. R. Co., 17 Conn. 454 ; or any right or privilege incident to and properly a part of the estate, it is * taking <:ti the property within the meaning of the constitutional limitation, as much , as the taking of the land itself, which the legislature can not authorize without compensa- tion. In reference-to the damages, it maybe said that all the loss that will be the natural and proximate result of the exercise of the power is the proper measure of compen- sation. The damages are not limited to the actual value of the land actually taken, or to the depreciation of the value of the remaining portion, but in addition thereto, the probable loss, inconvenience, and damage that will result to the premises. Thus, in estimating the damage to premises from the construction of a railroad through a town lot, on which dwellings and out houses were erected, that would be a very unjust measure of compensation that simply allowed the owner the actual value of the land taken, without reference to the injuries to his remaining portion of the lot, from the noise, smoke, vibration, risk from fire, and destruction of essential conve- niences, and these elements not only may, but should be considered. Matter of Utica, &c., R. R. Co., 56 Barb. (N. Y.) 436; Virginia, &c.. R. R. Co, v. Elliott, 5 Nev. 358. As to injuries resulting to the premises of those not taken ^nder the grant, it may be said that the legislature can not authorize the doing of an act by another, that operates to destroy the value of property of others, by any of the elements con- stituting an actual nuisance, so as to preclude a recovery by the person injured thereby. Thus, it can not authorize the erection of a slaughter-house, or a gas- house, or any other erection for the prosecution of a noxious trade, so as to prevent SEC. I.] INJURIES BY STATUTE. 249 road, that it is thereby authorized to conduct its traffic so as to create a nuisance. The company is not responsible for una- voidable noises caused by its engines ; {0) but if the engine- driver unnecessarily puts on the whistle, or unnecessarily lets off steam, or discharges mud or water when crossing or run- ning alongside a public carriage-road, and by so doing fright- ens horses lawfully traversing the highway, and causes them to upset a carriage, the railway company will be responsible for the damage done. ( /) So, if the property of the plaintiff adjoining a railway has been set on fire and destroyed by a spark from the locomo- tive engine and furnace, which the railway company is au- thorized by statute to use on their railway, the railway com- pany is prima facie responsible for the damage done, for the Acts of Parliament authorizing railway companies to run (0) Rex V. Bease, 4 B. & Ad. 30. FuUarton, 14 C. B. N. S. 54. (/) Manch. and Altring. Rail. Co. v. me from recovering for the injury to my premises, if, in the prosecution of the busi- nes.s, noxious smells or gases are emitted therefrom, so as to essentially impair the value of my property or its comfortable enjoyment. The only effect of the grant, is to authorize the doing of the act named therein, and, so far as the public is concerned, upon compensation for the property taken, and to debar the public from proceeding against the persons exercising the power iox a. public nuisance. If a. private nuisance results therefrom, an action lies therefor, notwitlistanding the grant. People v. Manhattan Gas Light Co., 64 Barb. (N. Y.) 55 ; Carhart v. Auburn Gas Light Co., 22 Id. 297 ; Richardson v. Vt. Cenll. R. R. Co., 25 Vt. 465 ; Wilson v. New Bedford, 108 Mass. 261. By this, it is not meant that every discumf rt, every annoyance, or every inconverrience, or even the actual depreciation of the value of surrounding property, by reason of the exercise of the powers conferred by the grant, gives a right of action, but that, when the injury is suc;li that, if it had been caused by the act of the owner of the adjoining property, an action would lie therefor, an action will lie against the person or corpora- tion, notwithstanding the legislative grant. People v. Gas Light Co., ante ; Claric V. Mayor of Syracuse, 13 Barb. (N. Y.) 32 ; Richardson v. Vt. Cent. R. R. Co., ante ; State v. Western Inland Lakes Nav'n Co., 2 Johns. (N. Y.) 2S3 ; Man- hattan Gas Co. V. Barker, 36 How. Pr. (N. Y.) 233 ; Eastman v. Company, 44 N. & L. 143 ; Lee v. Pembroke Iron Co., 57 Me. 481 ; Estabrook v. Peterboro R. R. Co., 12 Cush. (Mass.) 224; Eaton v. Boston & Concord R. R. Co., 51 N. H. 504 ; 12 Am. Rep. 147. In Robinson v. N. Y. & Erie R. R. Co., 27 Barb. (N. Y.) 512, the court held that a legislative grant to construct a railroad can give no authority to invade any private rights without just compensation. It confers a franchise simply, and the title and the rights of a private corporation, but no exemption for wrongs to private property. In Hatch v. Vermont Central R. R.' Co., 25 Vt. 67, Redfield, J., in commenting upon the liabilities of corporations exercising powers conferred by 2SO THE LAW OF TORTS. [Ch. XVI. locomotive steam furnaces through the country, do not au- thorize them to scatter sparks or lighted coals upon the adjoin- ing land, to the injury of the proprietors thereof, if by any means their engines can be prevented from so doing, {q) 1043. Duties and responsibilities of boards of public works, trustees, and co7nmissioners — Contractors and workmen acting in the exercise of statutory powers. — Trustees and commis- sioners of public works, having certain public duties to per- form under the authority of a statute, incur no personal re- sponsibility 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 themselves liable to an action. If an action is brought against contrac- tors and workmen who are personally engaged in the execu- tion 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 {q) Freemantle Gt. North. Rail. Co., {f) Reg. v. Longton Gas Co., 29 Law 31 Law J., C. P. 12. Dimmock V. North. J., M. C. 118. Staff. Rail. Co., 4 F. & F. 1058. specia'. gi-ant from the legislature, for injuries to those whose lands have not been taken, seems to have favored the doctrine that their liability stands upon precisely the same ground as that of an individual. In that case the plaintiff sought to recover for consequential injuries arising from the construction of the defendant's railroad in the village of Burlington, upon the ground that the excavations and em- bankments made by the defendants in the necessary construction of their road, prevented the free escape of surface-water arising from rains and the melting of snow from the streets, so that it was sent into his store and upon his premises, to his damage, and whereby his premises were rendered less accessible from the street ; that before the erection of the plaintiff's road, people could safely hitch their horses in front of his premises, and that he could safely drive to and from his prem- ises with horses and carriages. The court held that the plaintiff was not entitled to recover the damages ensuing from these acts of the company, upon the ground that, even if the acts had been done by an individual clothed with no special pow- ers from the state, it would not have created an actionable injury. The work done was lawful. It was jierformed prudently and " with as little injury as possible to the plaintiff 's property consistently," &c. The learned judge said : " In the ab- sence of all statutory provisions to that effect, no case, and certainly no principle, seems to justify the subjecting a person, either natural or artificial, in the prudent pursuit of his own lawful business, to the payment of consequential damages to other persons in their property or business. This always happens more or less in Sec. I.] INJURIES BY STATUTE. 251 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 projser skill and care, the contractors and workmen, or the trustees, &c., as the case may be (see infra), will be personally answer- able for the damage done, (j) 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 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 exe- cution of the duties imposed upon them by the Legislature, it was held that they were not personally responsible for the {s) Jones V. Bird. 5 B. & Aid. 837 ; 31 Law J., C. P. 317. Clothier v. Webster, 12 C. B., N. S. 790; all rival pursuits, and often, where there is nothing of that kind, one mill or one store or school injures another. One's dwelling is undermined, or its lights dark- ened, or its prospect obscured and thus materially lessened in value, by the erection of buildings upon the lands of other proprietors. One is beset with noise or dust or other inconvenience, by the alteration of a street, or more especially by the in- troduction of a railway, but there is no redress in any of these cases. The thing is lawful in the railroad as much as in the other cases supposed." In the same opinion the court disposes of a question between one Whitcomb and the same defendnnt, for injuries resulting from a neglect of the defendant to build a proper sluice or culvert for the passage of a stream of water, whereby the plaintiff's lands were injured. For the neglect of the defendant to erect such a culvert as was necessary and sufficient for that purpose, the court held that the defendant was clearly liable both at common law and under the provisions of its charter. The conferring of special privileges upon an individual or corporation to exer- cise a particular franchise, is always upon the implied understanding that the fran- chise shall be prudently exercised, and in such a manner as to inflict the least injury upon others. It is upon this principle that it is held that where there are two modes of exercising the right, by one of which it would be a nuisance to others, and by the other of which it would not, that the method by which the nuisance would be avoided must be adopted. Corporations are given large latitude for the exercise of a reasonable discretion in the prosecution of their work, but they are subject to the supervision of the courts ; and if they abuse this discretion and exercise it in a care less or unreasonable manner, redress may be had for d.images resulting therefrom, either at law or in equity. Whitcomb v. Vermont Central R. R. Co., 25 Vt. 6g ; Regma v. Scott, 3 Ad. & El. 543. Damages that result from a careless or unreason- able exercise of their powers, are not treated as covered by the franchise, or as hav ing been contemplated by the act conferring the authority ; consequently a land- 252 THE LAW OF TORTS. [Ch. XVI. damage done ; (/) 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 in- creases the damage or creates it, then the trustees will be lia- ble, if the work has been done by their own servants, or per- sons acting under their immediate orders. Where the trus- tees of a public road covered over an open drain by the road- side, 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 re- sponsible in damages for the injury, {u) If the act done is in itself lawful, it can only become un- lawful in consequence of the negligent and improper manner in which it is executed, {v) When commissioners intrust the execution of public (t) Sutton V. Clarke, 6 Taunt. 42. {ti) Whitehouse v. Fellowes, 30 Law J. Grocers' Co. v. Donne, 3 Sc. 357 ; 3 B. C. P. 305. N. C. 34. Herring v. Metrop. Board of {v) Boulton v. Crowther, 2 B. & C. 705. Works, 34 Law J., M. C. 224. Coe v. Governor, &c., of Cast Plate v. Meredith, Wise, post. 4 T. R. 796. owner whose land has been taken under the grant, and whose damages have been appraised and paid, is not thereby debarred of a remedy for damages arising from such a course, whereas he would be if the damages arose from a prudent and reason- able exercise of the powers conferred. Such damages are not regarded as covered by the appraisal or award, and may be recovered by him, as well as by one whose land lias not been taken, as all shch acts are regarded as being ultra vires, and not pro- tected by the grant. Eaton v. Boston, Concord & Maine R. R. Co., 51 N. H. 504; 12 Am. Rep. 147 ; Baltimore & Potomac R. R. Co. v. Magruder, 34 Md. 79 ; 6 Am. Rep. 311 ; Cooper v. N. British R. R. Co., 27 Jur. 241 ; Fletcher v. R. R. Co., 25 Wend. (N. Y.) 462 ; State v. Stoughton. 5 Wis. 291 ; People v. Law, 34 Barb. (N. Y.) 494 ; Hinchman v. R. R. Co., 17 N. J. 75 ; Potter's Dwarris on Statutes, 75 ; Fir^t Baptist Church v. R. R. Co., 5 Barb. (N. Y.) 79 ; Steele v. Western In- land Nav. Co., 2 Johns. (N. Y.) 283. The real test is really this : all the natural and probable consequences of the exercise of the power given may be said to have been within the contemplation of the grant, but those results which are & possible, but not the necessary result thereof, are »^< covered by the grant, and liability exists therefor as much as though the legislative power had never been given. In Estabrook v. Peterboro R. R. Co., 12 Cush. (Mass.) 224, the defendants, in the construction of their railroad, filled up the bed of a river running through the plaintiff's lands, so that his lands were thereby overflowed and injured. The de- fendants contended that, as the injury resulted from the construction of the road, as authorized by the statute, the plaintiff could have no remedy except such as the statute provided, even though the road did not actually touch the plaintiff's land. The court held, that as the result was not such as necessarily arose from the con- struction of the road, the plaintiff could maintain the action. Shaw, C. J., said: Sec. I.] INJURIES BY STATUTE. 253 works to contractors, engineers and surveyors, wno select their own workmen for the execution of the work, the com- missioners are not personally liable for the mistakes or negli- gence of the contractors, engineers, or workmen, {x) So trustees of turnpike-roads, in whom the soil of the highway is not vested, and who are not in possession thereof, 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 management 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 commis- (x) See ante. 107. Duncan v. Findlater, 6 CI. & Fin. {y) Humfreys v. Mears, i M. & Ry. 894. " The remedy of the plaintiff was by an action of tort for the nuisance. If the ob- struction of the river was strictly necessary, and no sufficient lateral canal could be made, then we should consider that the mode of laying the railroad was contem- plated and authorized by the legislature, and the remedy would be by complaint for damages ; " and he cites in support of the position, Dodge v. County Commrs. of Essex, 3 Met. 380 ; Springfield v. Conn. Riv. R. R. Co., 4 Cush. 63. " But," nc adds, " it does not appear that it was necessary to locate the railroad so as to crosi the river and obstruct it, but only that the engineers thought it the best mode, the easiest, and, perhaps, the cheapest. Nor does it appear that a canal could not be made of a capacity equal to the original watercourse, to carry off the water, as re- quired when such artificial watercourse is substituted for a natural one. The course adopted by the railroad company not being over the plaintiff's land, was a nuisance for which he has his remedy at law'' It has been held that a legislative grant does not exempt a gas company from liability for damages for polluting the air so as to impair the comfortable enjoyment of surrounding property ; People v. Manhattan Gas Co., ante ; or from damnges arising from the pollution of the waters of a stream by turning therein the refuse from its works ; Carhart y. Auburn Gas Light Co., ante; or a railroad company from injuries resulting from the obstruction of a navigable stream by the erection of abridge; Jolly v. Terre Haute R. R. Co., 6 McLean (U. S.) 661 ; or from ex- cavating so near the lands of another as to let down his soil ; Richardson v. Vt. Central R. R. Co., ante ; or so as to injure adjoining houses ; Biscoe v. Great East- ern R. R. Co., L. R. l5 Eq. Cas. 640 ; turning surface-water upon another's prem- ises ; Waterman v. Vt. Central R. R. Co., 30 Vt. 61 ; diverting the water of a .stream ; Catt v. Lewiston, 35 N. Y. 214 ; charging the soil with water by reason of em- bankments ; Wilson v. New Bedford, 108 Mass. 261 ; flooding the lands of another by removing embankments ; Eaton v. Boston & Concord R. R. Co., 51 N. H. 504; cutting off access to public streets ; Wetmore v. Story, 22 Barb. (N. Y.) 414 ; Cutting 254 THE LA W OF TORTS. [Ch. XVI. sioners 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 pow- ers, 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 commis- sioners were personall}'- responsible in damages for the nui- sance they had 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 (z) Leader v. Moxon, 2 W. BI. 926 ; 3 J., Exch. 321 ; 3 H. & N. 164 ; 35 Law Wils. 461. J., Exch. 225. (a) Gibbs v. Trust. Liv. Docks, 27 Law off access to a navigable stream, when the right existed as an incident of the estate ; Duke of Buccleugh v. Bd. of Met. Works ; 5 H. L. Cas. 405 ; casting rocks upon an .adjoining estate in the process of blasting ; Labin v. Vt. Cent'l R. R. Co., 25 Vt. 3f)3 ; injuries by noise from erection of forges near dwellings ; Cooper v. No. British R. R. Co., 35 Jurist, 295 ; and generally for all such injuries to the estate of another as amount to an actual nuisance thereto; Johnson v. Atlantic, &c. R. R. Co., 35 N. H. 569 ; Whitcomb v. Vt. Centl. R. R. Co., 25 Vt. 465 ; Drake v. Hudson R. R. R. Co., 7 Barb. (N. Y.) 508 ; Renshaw v. Slate River Co., 6 Rand. (Va.) 245 ; Hogg V. Zanesville Canal, &c. Manuf. Co., 5 Ham. (Ohio), 410; People v. Manhattan Gas Light Co., ante : Stone v. F. P. & N. W. R. R. Co., (111.) Am. L. T. (N. S.) vol. 2, p. 54 ; Wood on Nuisances, 782-798. Where the lands of an individual are taken under the authority of the state, the assessment of damages is regarded as including all the natural and probable damages resulting from the use of the property for the purpose for which it was taken, and no recovery can be had for any injuries resulting from such use within the scope and provisions of the grant, express or implied. But all such privileges, conferred upon an individual or corporation, are always held to be subject tothe qualification that the franchise shall be prudently exercised, and in such a manner as to produce the least possi- ble injury to others. In Wood on Nuisances, p. 795, the doctrine is laid down, thus : " Where a person or corporation is vested with authority by the legislature to do an act which, unless carefully and skillfully done, will operate injuriously to the public or to individuals, they are bound to execute the power in good faith, "and to exercise the highest degree of care to prevent injurious results, and it is only against those acts which, in the exercise of such care and skill, operate injuriously, that their grant operates as an excuse or defense. If negligence can in any measure be predicated of their acts, they are liable for all the consequences, civilly and crini' Sec. I.] INJURIES BY STATUTE. 255 ha-ve 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, {b) Whenever an Act of Parliament imposes upon commission- ers, or upon any public body, the duty of maintaining or re- pairing 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 commissioners or public body, {c) unless there are pro- visions in the statutes creating them for limiting their liabili- ty, {d) 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 {b) Walker v. Goe, 3 H. & N. 395 ; 27 (d) Young v. Davis, 31 Law J., Exch. Law J., Exch. 427. 256. (c) Gibbs V. Trustees of Liverp. Docks, (e) Wilson v. Mayor of Halifax, L. R., 35 Law J., Exch. 225 ; L. R., i App. Ca. 3 Exch. 114. 93- inally, resulting therefrom. Briscoe v. Great Eastern Railway Co., 10 L. R. Eq. Ca. 640. The rule is, that where a corporation or an individual are authorized to do an act whicli is in derogation of private rights, they are bound to exercise the power given, with moderation and discretion, and not negligently. Thus, where a railroad company were authorized to make execavations for their road-bed, it was held that they were bound to make them with reasonable regard to the rights of adjoining owners, and when they were proceeding with the work without taking sufficient precaution to secure the safety of an adjoining house, they were restrained from proceeding until such precautions were properly provided for, and an inquiry as to damages was granted. Rickett v. Metropolitan Railway, 2 H. L. 175. When the company can exercise its rights in a way that will not be productive of injury to private rights, it is bound so to exercise it, and a court of equity will always inter- fere to prevent their exercise in a vexatious or careless way. R. R. Co. v. Canal Co., I Ra. Ca. 225. If there are two modes in which the work can be done, one of which would create a nuisance, and the other not, they are bound to choose the method which will obviate the nuisance. In Matthews v. West London Water Works Co., 3 Camp. 402, the defendants were authorized to make excavations in the street to lay their water pij^es. In doing so they threw up rubbish without properly guarding the same, whereby a stage coach, which the plaintiff was driving, was overturned and injured, and he, plaintiff, severely injured. Lord Ellenborough held that the company was clearly liable, even though the work was done by a contractor. In Waterman v. Conn. & Pass River R. R. Co., 30 Vt. 610, damages were allowed for injuries from surface-water, through the unskillful manner in which the road was constructed. But see Henry v. Vt. Central R. R. Co., 30 Id. 638, where land resulting from change in the course of a river by a railroad company 256 THE LAW OF TORTS. [Ch. XVI. 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 per- son 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. (^) 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 com- pensation for the injury arising from such neglect rests with the parties upon whom the duty of repairing is imposed. (Ji) 1044. Surveyors of highways and county bridges are not responsible in damages to travellers who have sustained in- jury from the highway or bridge being out of repair, {i) Nor «) Maron v. Lond., Chat., and Dover (0) Salter v. toetrop. District RaiU, U Rail. Co., Ibid. loi. R., gEq. Ca. 432. Sec. III.] REMEDIES BY ACTION. 289 SECTION III. REMEDIES BY ACTION AND BY INJUNCTION IN RESPECT OF INJURIES FROM THE NEGLIGENT DOING OF THINGS AUTHORIZED TO BE DONE BY STATUTE. 1071. Limitation of actions in respect of things done under local and personal statutes. — By 5 & 6 Vict. c. 97, s. 5, it is en- acted, that the period within which any action may be brought for anything done under the authority or in pursu- ance of any local and personal Acts, (/) shall be two years, or, in case of continuing damage, then the action mus* 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. 1072. 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 dig- ging in the soil of a street, and the excavation at first pro- duced no injury to the plaintiff, but some months after it had been made, it weakened the foundations of the wall of the 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 thereform, and, therefore, that the time of limination ran from the falling of the wall, {p^ See Cock v. Gent, 13 Law J., (?) Wordsworth v. Harley, I B. & Ad, Excli. 24. 391. II. — 19 290 THE LAW OF TORTS. [Ch. XVI. and not from the time of the making the excavation, (r) A continuing excavation of this sort has been said to be a con- tinuing nuisance, constituting a continuing cause of action so long as it is permitted to exist : {s) and so is a continuing obstruction to a viratercourse and flow of water, {t) 1073. Of notice of action. — The words in clauses of Acts of Parliament requiring notice of action to be given " in re- spect of anything done in pursuance of the Act, or in execu- tion of the powers thereof," apply to all cases where the par- ties are intending to act upon powers given by the statute, and not merely using it as a cloak for their own private pur- poses, ill) Those words do not mean acts done in strict pur- suance 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 bona fide and really believe himself to be authorized by the Act. {x) Though he may erroneously exceed the powers the Act gives, or inadequately discharge the duties imposed upon him, yet if he acts bona 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 pro- tection conferred upon persons so acting, {^y) Whenever, indeed, any action is brought against any one for anything done by the order, direction, or authority of a person au- thorized to act in the matter, under the provisions of a public or a private Act of Parliament, it will generally be found ne- cessary 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 the cases of misfeazance, where he has acted negligently or wrongfully in the execution of the Act. {z) The notice must state positively that an action ir) Roberts v. Read, 16 East, 217. B. & Ad. 139. Beechey v. Sides, 9 B. Bonomi V. Backhouse, (T»rw^, ch. 21. Watkins v Gt. North. Rail. Co., 16 Q. Sec. III.] REMEDIES BY ACTION. 297 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 noth- ing wotild 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 avoid- able and unnecessary injury upon others. Thus, where a railway company, in the exercise of its statutory powers, commenced the building of a bridge across a mill-race iji 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 dimensions than those re- commended in the report of a particular engineer, {k) Here it was shown that the bridge was altogether wrongly constrvicted, 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 can not interfere, but must remit the injured party to the statutory compensa- tion for the damage where that is provided. (/) The court will by injunction restrain public boards and commissioners 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 arbit- rary manner, {n) The 68th section of the Railway Clauses Act, 1 845 (8 & 9 Vict. c. 20), enacts that the company shall maintain certain works for the accommodation of the owners and occupiers of lands adjoining the railway, such as gates, fences, culvert? drains, watering places for cattle in certain cases, &c. ; an i the 69th section enacts that if any difference arises between {k) Coats V. Clarance Rail. Co., 1 (m) Holt v. Corporation of Rochdale, Russ. & M. i8i. L. R., lo Eq. Ca. 354. (/) Stainton v. Metrop. Board, &c., 23 (») Tinkler v. \\'andsworih Bo.ird ot Beav. 232 ; 26 Law J., Cli. 300. Bid- Works, i Giff. 417 ; 2 De G. & J. 261 dulph V. St. George's Vestry, 33 Law J., Rangeley v. Mid. Rail. Co., L. R. 3 Ch Ch. 4J r. App. 306. 298 THE LAW OF TORTS. [Ch. XVI, the company and such owners or occupiers as to the kind, number, size, maintenance, &c., of such works, it shall be de- termined by two justices. The Court of Chancery, therefore, will, as a rule, refuse to interfere in such cases. (-«. (a) See Att.-Gen. v. Ely, &c., Rail, 300 THE LAW OF TORTS. [Ch. XVI, confine them within the limits of their jurisdiction, (b) " other, wise 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 satis- faction 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 bill, 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 ob- tained 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 re- ceived the approval of the ratepayers, (e) 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 authority until the condition prece- dent has been strictly fulfilled. (/) Thus, it will restrain a railway company from using land for which, and the injury Co., L. R., 6 Eq. Ca. uo6 ; liiii. 4 Ch. (e) Att.-Gen. v. West Hartlepool Im- App. 194 ; 38 Law J. Ch. 258, as to provement Commissioners, L. R,, to Eq, maldng a more convenient road. Ca. 152. See Reg. v. Mayor of Sheffield, (/j) Tinl>iMs 'nd advertisements. Criticisms upon sermons »nd clergymen. (a) See Starkie on Slander and Libel, 3d ed. (1869). Sec. I.] LIBEL AND SLANDER. 393 1114. Comments upon the public cha- racter of public men. 1 1 15. Disparaging criticism by one tradesman upon the goods of a rival tradesman. Section II. — Of verbal slander. 1 1 16. When defamatory words are actionable. 1117. Defamatory words not action- able without special dam- age. 1118. Defamatory words actionable per se without proof of any special damage, 1119. In what cases actionable words are rendered not actionable by precedent or subsequent words. 1120. Defamatory words imputing to the plaintiff that he is af- flicted with a contagious disorder. 1121. Defamatory words concerning tradesmen and professional men. 1122. Words imputing misconduct, or gross ignorance or inca- pacity, to professional men. 1123. Words imputing official mis- conduct to a person in an office of profit or trust. 1124. Words rendered actionable by reason of special damage. H25. Slanderous denunciations from the pulpit causing loss of custom, situation, or employ- ment. 1126. Effect of a dismissal of a slan- dered servant, being a wrong- ful dismissal on the part of the master. 1127. Effect of the slander being dis- believed by the master. 1 128. Special damage not being the immediate and natural con- sequence of the words spoken — Unauthorized repetition of verbal slander. 1129. Special damage directly result- ing from the repetition^ of oral slander. 1 130. Circumstances rebutting the presumption of malice. 1131. Privileged communications — Proof of malice. 1 1132. Privileged charges of felony' made bona fide, with reason- able grounds for suspicion. 1133. Privileged statements and com- ments by advocates in the course of judicial proceed- ings, or in the conduct of a cause. 1134. Defamatory statements by a party in open court conduct- ing his own cause. 1135. Privileged comments and charges by judges and ma- gistrates in the exercise of the duties of their office. 1136. Of the interpretation and ap- plication of the words used. 1137. Slander of title. Section III.— 0/ actions for libel and slander. 1138. Consolidation of actions for the same slander. 1139. Parties to be made plaintiffs. 1140. Parties to be made defendants. 1141. Declarations for libel and slan- der. 1142. Of the innuendo or defamatory sense attributed to the writing or words on the face of the declaration. 1143. Statement of special damage in actions for verbal slander. 1144. What may be given in evidence under the plea of not guilty 1145. Plea that the libel was inserted without malice or gross neg- ligence, and that an apology was published — Payment of money into court. 1146. Pleas of justification. 1 147. Evidence for the plaintiff — — Printed placards — Proof of publication. 1148. Publication in newspapers. 1 149. Proprietorship of newspapers containing libels. 1150. Proof of the utterance of the 304 THE LAW OF TORTS. [Ch. XVII words charged in actions foi verbal slander. 11 51. Proof of the singing of libel- lous songs. 1 162. 11 52. Application of the libel to the plaintiff. 1153. Pi'oof of the defamatory sense 1163. of the words used. 1154. Admissibility of evidence of 1164. surrounding circumstances to explain and point the libel — 1 165. Interpretation of the words used. 1166. 1155. Proof of subsequent libels to T167. explain and point the libel charged in the declaration. 1168. 1156. Proof of successive libels to show malice. II 60, 1157. Evidence of malice. 1158. Proof of injury to the plaintiff. 1170. 1159. Evidence of special damage. n5o. Proof of the trade, or profes- 1171. sion, or official character ot" the plaintiff. 1 1 72. 1161. Proof that the words were spoken concerning a trades- 1173. man or professional man in the way of Ws trade or pro- fession. Evidence on the part of the defendant — Traverse of ma- terial allegations. Proof of the truth of the charge or accusation. The damages recoverable in ac- tions for defamation. Evidence in aggravation of damages. Mitigation of damages. Proof of libels by the plaintiff on the defendant. Evidence of offers of apology in mitigation of damages. Of the judge's direction to the jury. Setting aside verdict — ^Arrest of judgment. Indictments for libel and slan- der. When the truth of the matter may be given in evidence. Evidence for the defense. SECTION I. OF LIBEL AND WRITTEN SLANDER, 1087. Of the distinction between slander by word of mouth and slander in a published writing. — Slander in writing or in print has always been considered in our law a graver and more serious wrong and injury than slander by mere word of mouth, inasmuch as it is accompanied with greater coolness and deliberation, indicates greater malice, and is in general propagated wider and further than oral slander. Hence words of a depreciatory character, which, if spoken only, Avould 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 Sec. I.] LIBEL AND SLANDER. 305 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. (d) Merely to call a man a swindler, or a cheat, or dishonest per- son 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 ; (1^) 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 action- able, 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 substantial 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 possessed himself of it. " Indeed," observes Best, C. J., " if we reflect on the degree of suffer- ing occasioned by loss of character, and compare it with that {b) Villiers v. Mousley, 2 Wils. 403 ; 5 (d) Bac. Abr. Slander, B. Co. 125b. {e) Janson v. Stuart, i T. R. 748. (f) Savile v. Jardine, 2 H. Bl. 532. (/) Bl. Com., by Christian, 125, n. 6. ' A libel is a publication calculated to bring a person into disrepute, or lias a tendency to injure him in the estimation of others, impair his reputation, degrade him socially or to bring him into disrepute or to excjr.e ag?,inst him public hatred, contempt or ridicule ; Chenery v. Goodrich, 98 Mass. 224 ; Lansing v. Carpenter, 9 Wis. 540 ; State v. Jeandell. 5 Harr. (Del.) 475 ; Com. v. Clapp, 4 Mass. 163 ; Mr. Townshend, in his work on Slander and Libel, page 77, defines a. libel thus : "Libel is a wrong occasioned by writing or effigy," but this definition is very in- complete and unsatisfactory, and does not cover the fields of libel, "in any essential measure. In order to amount to a libel the publication need not be in words, it ii enough if it is in signs, pictures, paintings or caricatures, calculated to produce any of the results before enumerated ; State v. Southwick, 9 Johns. (N. Y.) 214; State V. Farley, 4 McCord (S. C.) 314 ; White v. Nichols, 3 How. (U. S.) 266 ; Parsons, Ch. J., in Com. v. Clapp, ante, defines a libel as " a malicious publication, expressed either in printing or writing, or by signs and pictures, tending either to blacken the memoiy of one dead, or the reputation of one who is alive, and expose him to pub- lic hatred, contempt or ridicule.'' In order to constitute a libel, the matter need not h^ printed, it is enough if it is written, if the writing passes into the hands oi or is read by others ; Joannes v. Bennett, 5 Allen (Mass.) 169. II.— 20 3o6 THE LAW OF TORTS. [Ch. XVII. occasioned by loss of property, the amount of the former in- jury far exceeds that of the latter." (^)' 1088. Oral slander rendered actionable by being printed and published — Exemption of the author, and liablity of the publisher. — Oral slander uttered under circumstances not ren- dering it actionable, may, therefore, become actionable by being printed and published, and the publisher may become responsible in damages for publishing and circulating in writing what would not be actionable so long as it was cir- culated 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. {Ji) " What has been said by word of mouth is known only to a few persons, and, if the state- ment 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 will be properly estimated. But if the report is to be spread over the world by means of the press, the malignant falsehoods oi the vilest of mankind, which would not receive the least cre- ig) De Crespigny v. Wellesley, 5 35. Thorley v. Lord Kerry, 4 Taunt. Bing. 406. 354. [ji) M'Gregor v. Thwaites, 3 B. & C. ' The faot that the matters alleged as libellous, are commonly reported as true, and are generally circulated in the community and believed to be true, is no justi- fication. The person who seeks to give piiblicity to matters disparaging to the character of another, by publishing them, must be sure that he can prove the truth of the charge, for he will not be permitted to show that it is a matter of common rumor. Rumors concerning a person's character or acts, are not evidence by which to establish the guilt of the person of the acts imputed to him. Rumor is many tongued, and busy, but it is too frail, and unreliable to raise even a suspicion, in a court of law, that its slanderous allegations are true ; York v. Johnson, 116 Mass. 482 ; Schenck v. Schenck, 20 N. J. 208 ; and a person can not shield himself from liability for a libellous publication by putting it in the form of rumors, or hearsay. It is as libellous to publish of one " they say he is a thief" or " it is commonly reported that he is a thief, &c." as that " he is a thief," and nothing will justify or excuse it, except strict proof of the truth of the allegation, in whatever form it is put, and the fact that the person publishing it believed it to be true, is no justifica- tion or defense. Unless it is true, in fact, the law will imply malice, and liability both civil and criminal will attach therefor; Smart v. Blanchard, 42 N. H. 137) Littlejohn v. Greeley, 13 Abb. Pr. (N. Y.) 41. Sec. I.] LIBEL AND SLANDER. 307 dit 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 un- known ? The name of the author of a statement will 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 delusions of a lunatic." (?) It is no defense, therefore, to an action for a libel to show that a ludicrous narrative in a newspaper concerning the plaintiff was only a repetition of a story told by the plaintift of himself; " for there is a great difference between a man's telling a ludicrous story of himself to a circle of his OAvn acquaintance, and a publication of it to all the world through the medium of a newspaper." (_/')' 1089. What writings are libellous and actionable. — All publi cations in writing or in print, imputing to another disgrace- ful, or fraudulent, or dishonest conduct, {Jz) or which are in- iurious to the private character or credit of another, (/) or tend to render a man ridiculous or contemptible in the relations of private life, are libellous, and an action for dam- ages is maintainable against the writer and publisher, unless the publication ranges within that class of communications which are termed privileged communications, presently men- tioned, or unless the libeller can prove the truth of the libel." (?) De Crespigny v. Wellesley 5 Bing. {k) Digby v. Thompson, 4 B. & Ad. 403. 821. ij) Cook V. Ward, 6 Bing. 415. (/j Fray v. Fray, 34 Law J., C. P. 45. ' As to what constitutes a publication, see Snyder v. Andrews, 6 Barb. (N. Y.) 43 ; Van Cleef v. Lawrence, 2 City Hall Rec. (N. Y.) 41 ; -Baldwin v. Elphinstone, 2 W. Bl. 1037 ; Rex v. Amphlitt, 4 B. & Cr. 35 ; Keene v. Ruff, i Clarke (Iowa), 482 ; Miller v. Butler, 6 Cush. (Mass.) 71 ; Thorn v. IMaser, I Den. (N. Y.) 120 ; Hayes v. Leland, 29 Me. 233 ; Sutton v. Smith, 13 Miss. 120 ; Mayne v. Fletcher, 4 M. & Ry. 312 I Layton v. Harris, 3 Har. (Del.) 406 ; Weir v. Hass, 6 Ala. 881 j Viele V. Gray, 18 How. Pr. (N. Y.) 567. ' Anything written or published of a person, which defames his character with- 3o8 THE LAW OF TORTS. [Ch. XVII. To impute to a landlord that, in putting in a distress, he was colluding with an insolvent tenant, is libellous,' (w) It is a libel, also, to describe a man in writing as an "infernal vil- {ni) Haire v. Wilson, 9 B. & C. 645. ()ut legal excuse, is libellous. This law recognizes the value of personal character, and throws around it all safeguards essential for its preservation or vindication and whoever by writing, signs, pictures, effigies, or other physical means, does that vifhich tends to defame another by bringing him into contempt, ridicule or dis- repute, socially or morally, with his fellows, or which injures him in his office, trade, profession, or business, does an unlawful and unwarrantable act, unless he can vindicate his act by showing that it did not in fact defame such person, because of its truth or fitness as applied to the individual affected thereby. Thus to charge a person with having voted twice for the same officers at the same election ; Walker V. Winn, 8 Mass. 248 ; with endeavoring to extort- money from anothor ; Robertson v. McDougall, 4 Bing, 670 ; to charge a person with dishonesty and instigating calumnies ; Clark v. Binney, 3 Pick. (Mass.) -379 ; to charge a woman with un- chastity ; Badwell v. Osgood, 3 Id. 379 ; to charge a person with being corrupt in office, even though he is not in office when the libel is published ; Cramer v, K.'ggs, 17 Wend. (N. Y.) 209 ; to publish of a person " he is a miserable fellow, and it is impossible for a newspaper article to injure him to the extent of six cents, for the community could hardly dispise him worse than they do now ;" Brown v. Remington, 7 Wis. 462 ; to charge a person with official misconduct, or malfeasance, or misfeasance ; Turrell v. DuUaway, 17 Wend. (N. Y.) 426 ; to insinuate that a person has been insane ; Howse v. Stanford, 4 Sneed (Tenn.) 520 ; to charge a person with being a. drunkard, a cuckold and a tory ; Giles v. State, 6 Ga. 276; to charge a person with being a drunkard, and making extortionate charges ; Sanderson v. Caldwell, 45 N. Y. 39S ; to publish an obituary notice of a living person couched in monical language ; Com. v. Batchelder, Thacher's Cas. (Mass.) 191 ; McBride v. Ellis, 9 Rich. (S. C.) 313 ; to charge a person with blackmailing • may be libellous ; Edsall v. Brooks, 3 Robt. (N. Y.) 287 ; to charge a person with having been dismissed from office for blackmailing ; Edsall v. Brooks, ante; a resolution expelling a member from a medical society, reciting that he lacks the requisite qualifications, and obtained admission by false pretences ; Fawcett v. Charles, 13 Wend. (N. Y.) 473; to publish a 'person, "he is a lying, slanderous rascal ;" Snowden v. Lindo, i Cr. C. C. (U. S.) 569 ; to charge that a person has defrauded another, or with maliciously accusing another of an offense ; Kerr v. Force, 3 Id. 8 ; to publish of a man, " I look upon him as a rascal, and have for many years ;" Williams v. Carnes, 4 Humph. (Tenn.) 9 ; that he has circulated scandalous and scurriUous reports ; Calby v. Reynolds, 6 Vt. 489 ; that he is thought no more of than a horse-thief or counterfeiter; Nelson v. Musgrave, 10 Mo. 648 ; to assail the integrity or capacity of a judge ; Robbins v. Treadway, 2 J. J. Marsh. (Ky.) 540'; to publish of a person who is an applicant for office, or lor a situation that he is a slanderer, ignorant and thoughtless ; White v. NichoUs, 3 How. (U. S.) 2(56 ; that he had illicit intercourse with his wife before he was married to her ; Dexter v. Spear, 4 Mass. (U. S.) 113 ; that the writer believes a person to be guilty of a crime ; Kerr v. Force, ante ; to charge a maltster with using dirty, filthy water; White v. Delavern, 17 Wend. (N. Y.) 49; to charges parson with smuggling ; Stilwell v. Barter, 19 Id. 487 ; with kidnapping ; Nash T. Sec. I.] LIBEL AND SLANDER. 309 lain," («) or an " itchy old toad," (0) or, as being in insolvent circumstances and unable to pay his debts, (/) or as being a mere man of straw, {cf) 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 miscon- duct in an office of trust, or of general misconduct, corrup- tion, 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, {t) 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 writ- ing, therefore, of a man that he has been guilty of gross mis- conduct, and has insulted two females and a gentleman in the most barefaced manner, is a libel. («) 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 squan- dered away the funds of the benevolent in printing circulars abusive of the society's secretary {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 pro- fessional conduct of the captain. " It is like saying of an innkeeper or tea-dealer that his wine or his tea is poi- soned." {w) To impute to a physician of character and eminence that he is concerned in vending quack medicines (») Bell V. Stone, I B. & P. 331. if) Cheese v. Scales, 10 M. & W. 488. (0) Gould, J., Villiers v. Mousley, 2 [s] Cox v. Lee, L. R., 4 Exch. 284. Wils. 403. \t) Morgan v. Lingen, 8 L. T. R., N, {f) Metrop. Saloon Omnibus Co. v. S. 800. Hawkins, 4 H. & N. 146 ; 28 Law J., («j Clement v. Chivis, 9 B. & C. 176. Exch. 201. See Cox v. Lee, L. R., 4 (w) Hoare v. Silverlock, 12 Q. B. 624. Exch 284, per Kelly, C. B. (w) Ingvem v. Lawson, 8 So. 478. (q) Eaton V. Johns, I Dowl. N. S. 612. Benedict, 25 Wend. (N. Y.) 645 ; ■viS.'Ca. poverty , when crouched in such language as to expose him to ridicule ; Moffat v. Cauldwell, 5 Sup. Ct. Rep. (N. T.) 256 ; and generally any charge published of another which injures him in his office, trade, ■ occupation, or business, or which exposes him to the contempt or ridicule of socie:ty, or which tends to disgrace him or render him infamous. In order to constitute a libel, it is not necessary that the words or charge should be printed, or generally circulated, it is enough if it is in writing, and only shoHvn to one person ; Wyatt v. Gore, Halt. 299 ; Keene v. Ruff, I Iowa, 482 ; even though that be the plaintifi'j wife ; Schenck v. Schenck, i Spen^jr (Ala.) 208. 3IO THE LAW OF TORTS. [Ch. XVII. is also libellous ; and, therefore, if a vendor of pills falsely advertises his pills as being prepared and furnished by a phy. sician 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 man- ner, (j/) or that he has kept company unworthy of his position in society, or of his position in his profession, is not ac- tionable. {£) To publish falsely in placards or newspapers, or through the medium of letters or writings, of a publican, that his license has been refused, {a) or of a tradesman, that he know- ingly 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 depreciating the other's wares and ex- alting his own above them, are defensible, {b) It is a libel, also, to say in writing of the publisher of a newspaper that he is a " libellous journalist," for the words either mean that the plaintiff has been habitually publishing 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 journahst, " 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 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 re- cover damages for the libel, although gambling and playing at dice are illegal. {/) {x) Clark V. Freeman, ii Beav. 117. (z) Clay v. Roberts, 11 W. R. 649; 9 As to injunctions against the publica- Jur. N. S. 580. tion of libels, see Dixon v. Holden, L. (a) Bignell v. Buzzard, 3 H. & N. R., 7 Eq. Ca. 488. Springhead Spin- 217; 27 Law J., Exch. 355. ning Co. v. Riley, L. R., 6 Eq. Ca. 561, (b) Harraan v. Delaney, 2 Str. 898. Mulkern v. Ward, L. R.. 13 Eq. Ca. Evans v. Harlow, 5 Q. B. 624. 619. (r) Wakley v. Cooke, 4 Exch. 518. i^y) But see Jenner v. A'Beckett, L. \d) Best, C. J., Yrisarri v. Clement, 3 R., 7 Q. B. II. Bing. 441. (er se. In all other cases express malice must be proved. Malice, in its ordinary sense implies personal ill-will, but in a legal sense, when used as a legal term, it does 312 THE LAW OF TORTS. [Ch. XVII. IO91. Privileged writings and communications. — When a communication is fairly made by one person to another in the discharge of some public or private duty, whether legal, not necessarily have that significance, but rather signifies an act done with an evil intention, a virongful motive, wilfully, unlawfully, and against the just rights of another. Bayley, J., in Bromage v. Prosser, 4 B. & C. 455, gave, what seems to me to be the most accurate definition of the term, when used as a legal term. He said: " Malice, in common acceptation, means ill-will against a person,^but in its /i?^a/ sense it means, a wrongful act done intentiqnally, without just cause or ex- cuse." And he proceeds to illustrate the matter thus : " If I give a perfect stranger a blow likely to cause death, I do it of malice, because I do it intentionally without just cause or excuse. If I maim cattle, without knowing whose they are ; if I poison a fishery without knowing who is the owner, I do it of malice, because it is a wrongful act and done intentionally. If I am arraigned of felony, and wilfully stand mute, I am said to do it of malice, because it is intentional and without just cause or excuse." And, generally, it may be said that malice is always inferred in all cases, criminal or civil, where an unlawful act is done for which no legal excuse is shown. Cora. v. York, 9 Met. (Mass.) 104 ; Com. v. Bonner, 9 Id. 410. There- fore, where there is an apparent legal excuse, if malice is of the gist of the action, it must be shown, but where there is no legal excuse it is inferred ; and even though there is not malice in fact, yet there is malice in law, which will sustain the action. Hart V. Reed, i B. Mon. (Ky.) 166. In actions for words written or spoken that are not actionable fer se but only become so by reason of their imputing something that affects the plaintiff in his trade., calling, or profession, the declaration or complaint must set forth particularly in what manner it was connected by the speaker with that trade, calling, or pro- fession, and the special damage resulting therefrom ; and, unless the words clearly import such an application, or are shown to have been so used, an action will not lie. Ayre v. Craven, 2 Ad. & El. 8. To charge a merchant with using false weights is actionable. Grifiiths v. Lewis, 7 Ad. & EL (Q. B.) 61. Words which reflect upon a person in his profession or trade are actionable if special damage is alleged and proved. Thus, to charge a clergyman with obtaining money by fraud ; Pemberton v. Calls, 10 Ad. & El. (N. S.) 461 ; of a physician, that he is no scholar ; Cawdrey* v. Highley, Cro. Cas. 270 ; or that he is an adulterer ; Ayre v. Craven, z Ad. & El. 2 ; of a barrister that he is, a dunce ; Peard v. Jones, Cro. Cas. 382 ; Cowdry v. Chickly, Cro. Cas. 270 ; or a quack ; Allen v. Eaton, Vin. Abr. Actions, pi. 10 ; or an emperic and mountebank, and a base fel- low ; Goddardt v. Hasselfoot, Viner's Abr. pi. 12 ; or to charge a professional roan or mechanic, or any person whose avocation requires skill and responsibility, with lack of skill or want of responsibility, or unfitness for the place or want of ability, are actionable ; Blunden v. Eustace, Cro. Jac. 504 ; but, when spoken of a mechanic they must clearly and unequivocally apply to his trade ; but otherwise, when spoken of a professional man or person whose duties require the exercise of talent and ability. The rule was well illustrated in Blunden v. Eustace, ante. In that case the plaintiff was a surveyor and. measurer of lands by profession, and relied upon his profession for his maintenance, and the court held that to say of him, " Thou art a cozening and shifting knave, and a cheating knave," were actionable, as they touched him in his profession. So, to say of a magistrate or other judicial officet Sec. I.j LIBEL AND SLANDER. 313 moral, or social, or in the conduct of his own affairs in mat- ters where his interest is concerned, " the occasion," observes Parke, B., " prevents the inference of malice, which the law that he is a partial magistrate or judge, is actionable ; but no action lies by him for words spoken of him in his official capacity, unless they charge him with that which is quasi corrupt. Kemp v. Haufgae, Cro. Jac. go. It is libellous to write of a person soliciting relief from a charitable society that she prefers unworthy claims which it is hoped the members will reject, and that she has squandered away money already obtained by her from the benevolent in print- ing circulars, abusive of the society's secretary, or that her friends in giving up their advocacy of her, had stated that they had realized the fable of the " Frozen Snake," such words being generally understood as meaning ingratitude to friends. Hoare v. Silverlock, I2 Ad. & EI. (Q. B.) 624. Express malice may be shown, by proof that the imputation is false, and it is sufficient to establish such malice, if it is proven that a material part of the imputa- tion is false. Blagg v. Sturt, lo Ad. & El. (Q. B.) Sgg. See also Robinson v. May, 2 Smith (English) 3, where it was held that " absence of all ground for the repre- sentation is proof of express malice." In Blagg v. Sturt, ante. Lord Denman said; " We are of opinion that proof of falsehood, in a part of the statement, is evidence for the jury, to renew the presumption of malice, where the occasion of the publication has been given in evidence to rebut it." So, while for the sake of public justice charges and communications which would otherwise be slanderous are pro- tected if made bo>ia fide, in the prosecution of an inquiry into a suspected crime, and are not made in stronger language or before more persons than is necessary. Toogood V. Spyring, i C. M. & R. 181 ; Lay v. Lawson, 4 Ad. & El. 7g5 ; Wright V. Woodgate, 2 C. M. & R. 573 : Martin v. Strong, 5 Ad. & Ell. 535 ; Fowler v. Homer, 3 Camp. 294 ; Kine v. Sewell, 3 Mees. & Welb. 2g7 ; Blake v. Pifold, I Moo. & R. igS ; Finden v. Westlake, Moo. & M. 461 ; Bromage v. Prosser, 4 B. & C. 247 ; and it is for the juiy to say whether the charge was made in an unwarranted and unreasonable manner, or in an unfit place before more persons than was neces- sary, or in language too strong. Ravenga v. Mackintosh, 2 B. & C. 6g3 ; Padmore V. Lawrence, 11 Ad. & El. 382. Malice is a question which must go to the jury, but the question whether there is reasonable and probable cause, is a question which may or may not be for the jury, acccording of the particular circumstances of the case. James v. Phelps, It Ad. & El. 488. But if there are any facts in dispute the question mzist be submitted to the jury. Blackford v. Doe, 2 B. & Adolphus, 184. Lord Tenterden, C. J., in discussing this question in the case last cited, to illustrate the rule adopted by him, which was recognized by the court as correct in James v. Phelp-;, ante, referred to the case of Ravenga v. Mcintosh, and said, " An attempt has been made to draw a general rule from this case, which is in its own circumstances vei-y peculiar and specific. There, it was clear from the plain- tiffs case, that the defendant had no demand whatever upon the plaintiff, for the sum for which he arrested him ; the defendant therefore prima facie had no reasona- ble or probable cause for making that arrest. Bui his defense was that he acted honestly in arresting, because he proceeded upon the opinion given him by his legal adviser, and to show that he gave in evidence the opinion, founded on a statement made by himself. Such a defense necessarily introduced a question of fact, whether he did act honestly on the faith of the opinion which he had obtained, believing 314 THE LAW OF TORTS. [Ch. XVII. draws from unauthorized communications, and affords a qualified defense, depending upon the absence of actual malice. If fairly warranted by any reasonable occasion or that the party might lawfully be arrested. That question, was unavoidably left to the jury." As to what constitutes reasonable and probable cause, it was said in Delegal v. Highley, 3 New Cas. 950, that it " must be that which exists in the minds of the party at the time of the act in question," and this definition is referred to by Cole- ridge, J., in James v. Phelps, ante, with approval. This being the case, whenever there is any dispute as to the facts, it becomes necessarily a question of fact for the jury to find, whether the defendant acted reasonably bona fide under the circum- stances, whether he honestly believed in the truth of his charge, and made it under that belief, and in a reasonable manner in view of all the facts and circumstances of the case. A man may not, simply because he honestly suspects another of having committed a crime against himself, go about the community proclaiming it, publicly or privately, and claim exemption from an action because of such belief, however honest. His privilege extends no further than to such communications as are jiecessarily and reasonably made in furtherance of justice, to secure the apprehension and conviction of the person. For all that is said or done by him beyond that, lia- bility attaches. The rule is, that words which may injure a person in his trade or profession, but which do not necessarily ■^xoA.v.z^ that result are not actionable without a special damage is alleged and proved. They must be spoken with reference to th? actual trade or profession. Thus in Lumby v. AUday, Cr. & J. 301, it was alleged in the plaintiff's declaration, that he was a clerk in a gas company, and that the defendant intending to have it believed that he was of a bad character, unfit for his situation, and an improper person to be employed by the company, and to cause him to be deorived of his situation, used words which charged him with incontinence. The plaintiff had a verdict, but upon motion in arrest it was held that the action would not lie: Bayley, J., in giving the judgment of the court, said, "Every authority which f have been able to find, either shows the want of some general requisite, as honesty, fidelity, capacity, &c., or connects the imputation with the plaintiff s trade, office, or business. As at present advised, therefore, I am of opinion that the charge proved in this case is not actionable, because the imputation it contains does not im- ply the want of any of those qualities which a clerk ought to possess, ajid because tilt imputation has no reference to his conduct as clerk'' So it has beei'i held that to charge a clergyman with adulteiy ; Parrat v. Carpenter, May. 64, Cro. Eliz. 502 ; flunt v. Jones, Cro. Jac. 499 ; Hartley v. Marring, 8 T. R. 130 ; Moore v. Meaghen, i Taunt, 39 ; a schoolmistress with being a prostitute; Wharton v. Brook, i Vint. 21 ; Witherhead v. Armitage, -i. Lev. 233 ; 2 Shaw. 18 ; are not actionable unless special damage is alleged and proved, and the doctrine of these cases is expressly confirmed in Ayre v. Craven, 2 Ad. & El. 8, and m Lumley v. AUday, Cro. & J. 305. Where words spoken are piima facia privileged, and therefore requiring proof from the plaintiff of express malice, the conduct of the defendant after speaking the words may be given to establish such malice ; as that he pleaded their truth in justification, and then gave no evidence in support of the plea, and refused to admit the falsity of the words ; Simpson v. Robinson, 12 Ad. & El. (Q. B.) 511 ; overruling Milen v. Andrews, Mas. & M. 336 ; and Wilsoi. V. Robinson, 7 Ad. & El. (Q. B.) 68. See also in effect sustaining the same principle Sec. I.] LIBEL AND SLANDER. 315 exigency, and honestly made, such communications are pro- tected for the common convenience and welfare of society, and the law has not restricted the right to make them within that putting a plea upon the record asserting the truth of the charge, and then putting in no evidence to sustain it, may be considered as evidence of malice. Warwick v. Faulkes, 12 M. & W. 507. See also Pearson v. Lematre, 5 M. & G. 700 ; but in such a case if the plea was honestly entered, and there is otherwise an ab- sence of any acts to show malice on the part of the defendant, and the communica- tion is privileged, neither the entry of such a plea will be regarded as evidence of malice, nor will the fact that the defendant attempted to find testimony to sustain his plea, but failed to do so, be allowed to be shown in aggravation of the wrono- • Orsmby v. Douglass, 37 N. Y. 477. Indeed, in Wilson v. Robinson, referred to ante, where such evidence was held not proper to be considered by the juiy upon the question of malice, the judgment of Lord Denman was predicated upon the ground, not that such evidence should never be considered by the jury, but that the fact whether it was proper to be sub- mitted to them depended entirely upon the circtcmstances of the case. If the co7n- munication is prijna facice privileged and a plea of justification is entered in good faith, and it is shown by evidence on the part of the defendant that the occasion of the communication was such as to make it privileged, the mere fact that the defendant had abandoned the plea of justification, would not of itself ht evidence of malice. Indeed, Lord Denman expressly intimates that if there is any evidence beyond the communication itself to establish express malice, the fact of the abandonment of the plea might properly be considered in aggravation of, damages, but in that case there was no proof of malice except it could be inferred from the fact of the abandonment of the plea, and the defendant expressly proved that th«, document was privileged, while in Simpson v. Robinson, ante, the defendant not only abandoned his plea, but refused to acknowledge its falsity when the plaintiff offered to accept an apology and nominal damages. Under such circumstances, the filing of the plea and its abandonment, was clearly evidence of malice, and it was upon that ground that the court predicated its judgment. It did not hold that in all cases the abandonment of the plea was to be submitted to the jury as perse evidence of malice, but that, whenever the facts and circumstances were such as to rendet its abandonment evidence of express malice, it might be considered by the jury in determining that question. A communication imputing corruption in office to one who fills the office, can not be regarded as privileged, because it relates to such person in his ofiice, and the party writing supposed he was making it to a competent tribunal. He is bound at his peril to know whether it is made to such a tribunal, and if it is not, it is not privileged ; Blagg v. Sturt, 10 Q. B. 899 ; and this is but a repetition of the doctrine laid down in Weston v. Dobinet, Cro. Jac. 432, where the court held that words spoken in the course of justice were not actionable, but, that if o scandalous bill is exhibited to a court that has no jurisdiction over the subject-matter of it, an action will lie. If a person has spoken slanderou words of another, and being called on by the person of whom the words were spoken, in answer to an inquiry as to whether he used the words, says that he did, and that they are true, the fact that the words were given in response to an inquiry by the plaintiff will not render them privileged, as to that portion of them re-affirm- ing the slander. Griffiths v. Lewis, 7 Ad. & El. (Q. B.) 61. 3i6 THE LAW OF TORTS. [Ch. XVII, any narrow limits.!' {h) " The rule," observes Lord Camp- bell, " is, that if the occasion be such as repels the presump- tion of malice, the communication is privileged, and 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 ques- tion for the jury in every case where a master, however fairly, gives the character of a servant ; and if they con- ceived 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 all cases in which the occasion has been said to repel the presumption of malice." {i) " A com- munication 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 bona fide the particular expressions ought not to be too strictly scrutinized, provided the intention of the defendant was good." (J) Whether the circumstances under which a communicai don was made constitute it a privileged communication or- not is a question which the court has assumed the jurisdic- tion of determining, (k) But if there is any dispute about those circumstances, the question must be submitted to a lury. It is essential to the existence of the privilege and protection that the communication, under whatever circum- stances made, should be believed to be true by the party making it ; for a person can not 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 winds. Where the auditors of a public company, employed in accordance with the provisions of the articles of association, (A) Toogood V. Sparing, i C. M. & R. (i) Taylor v. Hawkins, i6 Q. B. 321. 193. Somerville v. Hawlcins, 10 C. B. (j) Woodward v, Lander, 6 C. & P. 583. Croft V. Stevens, 7 H. & N. 570; 550. 31 Law J., Exch. 143. Wiiiteley v. (/5) Stace v. Griffith, L. R., 2 P. C. Cfc Adams, 33 Law J., C. P. 94. Cowles v. 420, Potts, 34 Law J.," Q. B. 247. Sec. I.] LIBEL AND SLANDER. 317 ■ made a report reflecting upon the conduct of the company's manager, and the directors had the report printed and circu- lated among the shareholders, 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- privi- leged, and that, in the absence of express malice, no action lay against the directors for such publication. (/) " Independently of ai;iy authority," says Mellor, J., " I am quite prepared to hold that a company having a great number of shareholders all interested in knowing how their officers conduct them- selves, 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 bona fide." " I 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 difficult}'." ' (/) Lawless v. Anglo-Egyptian Cot- ton Co., L. R., 4 Q. B. 262 ; 38 T-aw J., Q. B. 129. ' A privileged communication is one made at such a time, on such an occasion, and under such circumstances, that the inference of malice prima facie arising from a statement prejudicial to the plaintiifs character, is thereby rebutted, and imposes upon the plaintiff the bui den of showing malice in fact — that the defendant was actuated by motives of personal spite or ill will, independent of the occasion on which it was made. Parke, B., in Wright v. Woodgate, 2 Cro. M. & R. 573. Such communications, in order to be privileged, must have been made in good faith and for a justifiable purpose, in the discharge of a duty public or private, legal or moral, or in the prosecution of his own rights or interests, and without any design to defame the person to whom they relate, even though they are untrue. White v. Nichols, 3 How. (U. S.) 266 ; Coffin v. Coffin, 4 Mass. i, 31. Privileged communications are divided into four classes : 1. Where a person acts in the prosecution of his own rights, or in the bona fide discharge of a public or private duty, legal or moral. 2. Anything said or written by a master in giving the character of a servant who has been in his employ. 3. Publications made in the ordinaiy mode of parliamentaiy proceedings ; and 4. Words used in the course of legal proceedings, pertinent thereto, before a tribunal having jurisdiction over the matter litigated. Daniels, J., in White v. Nicholls, 3 How. (U.S.) 266. The ground upon which such communications are held to be privileged, is that owing to the rights and duties of the person making the communication, there is no presumption of malice, consequently can be no recovery unless express malice is shown. Ormsby v. Doug- lass, 37 N. Y. 477. Whether the publication or communication was made in good 3i8 THE LAW OF TORTS. [Ch. XVII. 1092. Defamatory writings in courts of justice. — An action ' for defamation will not lie for anything sworn or stated in the course of a judicial proceeding before a court of competent faith or not, is a question for the jury. Thus where a person applies to a magistrate for a warrant for another for felony with which he accuses him, if the application is made with probable cause, and in good faith, the communication made to the magis- trate is privileged, but if it was made without probable cause, and mala fide, an action lies. Burlingame v. Burlingame, 8 Cow. (N. Y.) 141 ; Bunton v. Wesley, 4 Eibb. (Penn.) 38. And the same is true of words spoken in the discharge of an official duty — they are only privileged when spoken in the discharge of that duty, without wantonness or malice. Goodenow v. Tappan, I Ham. (Ohio) 60. The occa- sion of using such words, if in the discharge of an official duty, is prima facie an- excuse, unless there is something in the occasion itself that rebuts the presumption, and the plaintiff is charged with the burden of proving express malice. Sands v. Robinson, 12 Sm. & M. (.Miss.) 704. Where a communication is privileged, unless the plaintiff introduces proof of malice beyond the publication itself, the court should not submit the question to the jury. If there is no evidence tending to show that the publication or communi- cation is not bona fide, it is the duty of the court to non-suit the plaintiff. Taylor V. Hawkins, 16 Ad. & El. (U. S.) 307. It is only for the jury to pass upon the question of malice, when there is evidence beyond the communication or publica- tion itself, tending to show it. Then it is for them to say whether the words used were used colorably or bona fide. Wright v. Woodgate, 2 Cro. M. & R. 573. It is not enough that the evidence is as consistent with malice as its absence, but it is necessary that the evidence should be such as is more consistent with its existence than with its non-existence. It is not necessary that it should be such as necessarily leads to the conclusion that malice exists, but such as tends more to warrant a con- clusion of its presence than its absence. Maule, J., in Somerville v. Hawkins, 16 L. T. 2S3. When this condition exists, the plaintiff is entitled to have the question go to the jury, otherwise it is purely a question of law for the court. A person who discharges a person from his employ, under the honest belief that such person has been guilty of dishonest conduct, whether the conduct amounts to a felony or not, may, upon being inquired of, state the reason for such dismissal, and no action will lie therefor, unless express malice, beyond the speaking of the words, is prqved ; Toogood v. Spyring, i Cro. M. & R. 181 ; Taylor v. Hawkins, 16 Ad. & El. 307 ; and if, when about to discharge such person from his employ, he calls a third person to hear the reason therefor, and states the reason in his presence, wtiich, except for the privilege would be actionable, the calling of such third person will not deprive the defendant of the privilege ; Taylor v. Hawkins, ante ; but the communication must be made with honesty of purpose, and if made in answer to inquiries to some person who has an interest in the inquiry, rat)ier than as mere matter of gossip ; Toogood v. .Spyring, ante. But in all cases where the claim of privilege is set up in defense, it must appear that the circumstances were such as to call for it and forbid any influence of malice ; Elam v. Badger, 2J 111. 498 ; and the privilege must not be exceeded. Thus, where a committee is appointed by a corporation to investigate the conduct of his officers and agents their report as well as their conclusions from the evidence may be privileged, but they would not be justified in printing and circulating the report in the form of » Sec. I.] LIBEL AND SLANDER. 319 jurisdiction, such as defamatory bills or proceedings filed in Chancery, or in the ecclesiastical courts, or affidavits con- taining false and scandalous assertions against others, {rri) (m) Ram v. Lamley, Hutt. 113. Wes- ton v. Dobniet, Cro. Jac. 432. Astley V. Younge, 2 Burr. 809. book ; Phila. &c. R. R. Co. v. Quigley, 21 How. (U. S.) 202 ; and all such reports must be such as are made in good faith and required to protect the interests of the corporation and the public against fraudulent representations ; Gassett v. Gilbert, 6 Gray (Mass.) 94 ; Burrows v. Bell, 7 Id. 301. A complaint made to a police officer charging a person with theft, if made bona fide, under an honest belief that it is true, is not actionable, but if made mala fide, \\. would be. Smith v. Kerr, i Edm. Sel. Cas. (N. Y.) 190; Whitney v. Adams, 15 C. B. (U. S.) 392 ; Reed v. McLenden, 44 Ga. 136. So where a newspaper publishes the evidence taken before an investigating committee, or upon the trial of cause, the publisher is not chargeable with libel unless he comments upon the evidence, and makes statements in reference thereto not fairly within the privilege. Terry v. Fel- lows, 21 La. An. 375. The publishers of a newspaper owe certain duties to the public, and have a right to discuss fairly all matters of public interest, and to criticise the public acts of offi- cials. But, while they have this right, they are bound to exercise it fairly, in good faith and without wantonne.'is or a reckless disregard of private rights. If they make charges without probable cause, and from improper motives, they can not claim any privilege therefor, neither can they attack the character of private citizens, except subject to the peril of being mulcted in damages, in case they are not prepared to fully sustain the truth of the charge made. Snyder v. Fulton, 34 Aid. 128; Usher v. Severance, 20 Me. 9; Hotchkiss v. Oliphant, 2 Hill (N. Y.)5io; Powers V. Dubois, 17 Wend. (N. Y.) 63 ; Turrill v. Delaway, 17 Id. 426 ; Cramer V. Riggs, 17 Id. 209 ; Cooper v. Stone, 24 Id. 434. In reference to candidates for office it may be said that, their character may be canvassed, but not calumniated. Seeley v. Blair, Wright (Ohio) 358, 683; Wilson v. Fitch, 41 Cal. 363. So words spoken or written in a legal proceeding pertinent thereto are privileged. Marsh v. Ellsworth, 2 Sweeney (N. Y. Sup. Ct.) 589 ; Garr r. Selden, 4 N. Y. 91 ; Lee v. White, 4 Siieed. (Tenn.) in ; Reid v. McLendon, 44 Ga. 136 ; but otherwise if the court did not have jurisdiction over the subject- matter of the action. Millan v. Burnside, I Brev. (S. C.) 295. In order to constitute a privilege that will excuse a libel, the person charged therewith must be able to establish a legal excuse therefor, either by showing that it was published in pursuance of a duty public or private, in good faith and under Buch circumstances as to deprive the publication of any inference or presumption of malice. If the duty is exceeded, if the privilege is abused, liability attaches, and even though otherwise within the privilege, if express malice or mali fide can be shown, the privilege will be of no avail. Private character is of too much value in the eye of the law to be made the mere sport of libellers or slanderers, and it holds them up to a rigid accountability if, under the guise of privilege, they step aside to make wanton or unwarranted attacks upon private citizens or public officers. Rec- tor v. Smith, n Iowa, 302 ; McCabe v. Cauldwell, 18 Ab. Pr. (N. Y.) 377 ; Littlejohn T. Greeley, 13 Id. 41 ; Aldridge v. Printing Co., 9 Minn. 133 ; Shackett v. Jackson, 10 Cush. (Mass.) 25 ; Hunt v. Bennett, 19 N. Y. 173 ; Taylor v. Church, i E. D. S. (N. Y.) 179. 320 THE LAW OF TORTS. [Ch. XVII. 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 plain- tiff can not 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 com- plain, for fear of infinite vexation." (n) There is a large col- lection of cases where parties have from time to time at- tempted 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 con- victed, {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 taking oaths in the Court of Chancery, and swore an affidavit stating of the plaintiff, in his character of an auctioneer, that he con- ducted 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 sub- ject 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, {q) But if the court has no jurisdiction in the matter, and no right to entertain the pro- («) Cutler V. Dixon, 4 Co. 14 b. quarters without permission, see Keighly (0) Henderson v. Broomhead, 4 H. & v. Bell, 4 F. & F. 763. N. 579 ; 28 'Law J., Exch. 360. (?) Revis v. Smith, 18 C. B. 126 ; 25 {p) As to.a certificate from a military Law J., C. P. 195. officer that his inferior officer left his Mercantile agencies may give information to any of its members in reference to the pecuniary, moral or social standing of a person, if given in good faith, but it may not print such information in a book for circulution among its members unless it is prepared to establish the truth of the statements made therein. Taylor v. Church, I E. D. S. (N. Y.)'279 ; Beardsley v. Tappan. 5 Bl. C. C. (U. S.) 497 ; (^<"»' v. Stany, I Penn. Leg. Gaz. (Penn.) 114 ; Sunderlin v. Bradstreet, 46 N. Y. 188, Sec. I.] LIBEL AND SLANDER. 321 ceeding, and the charge is recklessly and maliciously made, it will not be regarded as a privileged communication, (f) ' 1093. Defamatory petitions to the Queen, to Parliament or to ministers or officers of state respecting the conduct of magis- trates and officers. — As all 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 all 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 pre- pared bona fide, and forwarded to the proper authorities, complaining of the conduct of magistrates, and containing 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 with- out knowledge of their truth or falsehood, and without in- (r) Buckley v. Wood, 4 Co. 14 b. Lewis v. Levy, Ell. Bl. & Ell. 554 ; 27 Law J., Q. B. 282. ' Hartstock v. Reddick, 6 Blackf. (Ind.) 255 ; Usher v. Severance, 20 Me. 9 ; Kidder v. Parkhurst, 3 Allen (Mass.) 393 ; McLaughlin v. M'Makin, Bright. (Penn.) 132 ; Milan v. Burnsides, I Brev. (S. C.) 295. As to proceedings in a court of justice, it is held that a publication thereoif when the tribunal whose proceedings are published is legally competent to investi- gate the matter, are privileged, as well as charges made before such a court, pertinent to the m«tter on trial, and so, too, any comments upon the same warranted by the testimony published are included within the privilege, but comments resting upon inferences not fairly warranted by the proof, are not. Fry v. Bennett, 3 Bass. (N. y,) 200 ; Edsall v. Brooks, 26 How. Pr. (N. Y.) 426 ; Stanley v. Webb, 4 Sandf. (N. Y.) 21. Proceedings before a grand jury are held not to be proceedings before a court of competent jutisdiction, and are not privileged ; Rector v. Smith, II Iowa, 302 ; McCabe v. Cauldwell, 18 Abb. Pr. (N. Y.) 377. Statements made in a petition to the governor for the removal of a public officer, are yi^ajj judicial, and if pertinent thereto, are privileged ; but, if the parties petitioning step aside from the real facts, and make a wanton attack upon the public or private character of the officer, the privilege is abused, and liability attaches for all such excess ; Laikin V. Noonan, 19 Wis. 82 ; and this is the rule in reference to words charged to be libellous in any judicial proceeding. If they were pertinent to tlie issues, they are privileged, otherwise not ; Warner v. Paine, 2 Sand. (N. Y.) 195 ; Garr v. Selderi, 4 N. Y. 91 ; Marsh v. Ellsworth, 36 How. (N. Y.) 520 ; Bailey v. Dean, 5 Barb. (N. Y.) 297 ; an ex parte affidavit made to obtain the arrest of a person on a criminal charge, is, if made bona fide, and pertinent to the charge, privileged as to the affiant, but the privilege does not extend to its p^lblication in a newspaper. Cin. &c. Co. V. Timberiake, 10 Ohio St. 548 ; Klinch v. Colby, 45 N. Y. 427 • Reid ». McLendon, 44 Ga. 156. II. — 21 322 THE LA W OF TORTS. [Ch. XVll. quiry, when inquiry would have made the truth apparent, and would have shown the allegation of misconduct false, the calumniator will be deemed to have acted from malicious motives, and his statements will not be privileged, {s) Peti- tions to the Crown upon matters respecting which it can not directly interfere, and petitions to 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 protected, that men may not be prevented by the dread of a prosecution or action from making communications which may be beneficial to the public, {i) Defamatory statements respecting the conduct of public officers, contained in an application for the redress of a griev- ance, or to expose some public abuse, made bona fide to one of the king's ministers, who is supposed to have authority to afford redress, do not render the person making the appHca- tion liable to an action, Thus, where the creditor of an officer in the army sent a petition to the secretary-at-war, inclosing bills of exchange accepted by the officer, and con- taining statements derogatory to the character of the officer as a man of honor, and concluded with a prayer that the officer 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, {u) "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 persoi to (s) Harrison v. Bush, 5 Ell. & Bl. 354 ; (0 Lake v. King, I Saund. 132. as Law J. Q B. 25. Sturt v. Blagg, 10 («) Fairman v. Ives, 5 B. & Al« Q. B. 906, Sec. I.] LIBEL AND SLANDER. 323 whom he was addressing himself." {v) But if the statements contained in the application be wholly or partly false, that may be sufficient to renew the presumption of malice, which prima facie the nature of the communication would rebut, {x) ' 1094. Criminatory communications by public officers acting in discharge of a public duty.—K criminatory communication made by a clerk of the peace to the justices at quarter ses- sions is privileged, provided 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 peace believes to be true ; but if he imputes improper motives to others, and accuses them of attempts to extort money by misrepre- sentation ; if irrelevant calumny is introduced into it, or it contains strictures upon the motives and conduct of others, which the facts stated do not warrant, he will exceed his 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, {z) " 1095. Criminatory pastoral letters, and printed communica- tions from clergymen to their parishioners.— T\\Qr& 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 commu- nity, are actionable, if they cast serious imputations on the character or conduct of private persons. Where the school- master of a national school, established in a parish of which the defendant was rector, had been dismissed by the trustees {v) Wenman v. Ash, 13 C. B. 845. (2) Daw kins v. Lord Pau.let. L. R. (j;) Blaggv. Sturt, 10 Q. B. 905. 5 Q. B. 94 (diss. Cockburn, C. J.). (/) Cooke V. Wildes, 5 Ell. & Bl. 340 ; Quiiere, if the statements may be false to 24 Law J., Q. B. 367. Popham v. Pick- the knowledge of the officer making burn, 31 Law J., Exch. 133. them, Ibid. ' White V. Nicholls, 3 How. (U. S.) 266 ; Larkin 1. Noonan, 19 Wis. 82 ; Cook V. Hill, 3 Sandf. (N. Y.) 341 ; Thorn v. Blanchard, 5 Johns. (N. Y.) 508 ; Harris v. Harrington, 2 Tyler (Vt.) 109. • Burrows v. Bell, 7 Gray (Mass.) 301 ; Phila. &c. R. R. Co. v. Quigley, f How. (U. S.) 202 ; Garrett v. Gilbert, 6 Gray (Mass.) 94. 324 THE LAW OF TORTS. [Ch. XVII of the school from his situation, and had then obtained pos- session 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 parishion- ers, and exerting himself for their spiritual welfare. The parson in his case had, in a pastoral letter to divers parish- ioner,s, 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 desig- nated his school as a schismatic school, upon which God's blessing could not rest ; and he warned the rich against sup- porting it with subscriptions of money, and the poor against sending their children to it to be educated ; and it was held that the libel was not privileged, 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 parisli, which entitled him to circulate a defamatory letter, not only in his own, but in the adjoining parish, and so endeavor 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 he takes an interest, that he should on that account cast serious imputations on that individual, and still be considered as having published a privileged communica- tion, certainly seems a strange and inconvenient doctrine. We think that there was sufficient evidence for the jury to infer malice, and that in determining the question of malice, the particular nature of the libel itself can not be excluded from the consideration of the jury. ... In this case th terms of the letter itself are not without the character of malice. The endeavor to make the plaintiff's conduct a, matter of spiritual delinquency ; to represent it as something opposed not only to some wordly rule, but unchristian-like, and contrary to what would be done by a person who had faith in and a willingness to obey scriptural precepts, are Sec. I.] LIBEL AND SLANDER. 325 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) 1096. 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, in- forming 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 plain- tiff to the bishop, and giving currency to idle rumors, or with the honest intention of obtaining an inquiry. {B) If the writer of the letter has means at hand for ascertaining whether the rumors 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.' 1097. Privileged confidential communications between rela- tions respecting 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 communication was privileged. " If no explanation," ob'serves Alderson, B., " had been given of 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 (a) Gilpin v. Fowler, 9 Exch. 627 ; 23 {b) James v. Boston, 2 C. & K. 8. Law J., Exch. 152. ' O'Donoghue v. M'Govern, 23 Wend. (N. Y.) 26. 326 THE LAW. OF TORTS. [Cn. XVII. these were, should be free and unrestrained. The whole question is, whether this is a bona fide letter." {c) 1098. 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 neighbor. If a person is, under certain circumstances, un- der the pressure of a moral obligation to disclose the truth, he is, under all circumstances, under the pressure of a moral obli- gation to abstain from circulating and propagating false- hoods. 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, sat- isfied himself 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 sh Duld turn out to be false. Where the defendant has received a letter from his friend, the mate of a ship, containing a long narrative of dangers which the mate had incurred from the drunkenness of the captain, and asking for the defendant's advice, and the de- fendant honestly believing in the truth of his friend's state- ment, 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 Erle, 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 Cress- WELL, J., and COLTMAN, J., were of a contrary opinion. "It was not contended," observes Cresswell, J., "that any legal duty bound the defendant to communicate to the shipowner the contents of the letter he had received, nor was the com- munication made in the conduct of his own affairs, nor was ^^ Todd V, Hawkins. 2 M. & Rob. 21. {d) Hblroyd, J., Fairman v. Ives, 5 B. & Aid. t^'. Sec. I.] LIBEL AND SLANDER. 327 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 con- cerned, 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 confidence reposed by the former in the latter ; there was no relationship or inti- macy between them ; no inquiries had been made ; they were, until the time in question, strangers ; and the duty, if it ex- isted 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 plain- tiff and the defendant. If the property of the shipowner on the one hand was at stake, the character of the captain was at stake on the other ; and I can not 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 com- municate 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 inquir}^, ought to rest with the shipowner. And if the defendant had been possessed of any personal interest in the subject-matter 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 communication of the letter to the shipowner would have fallen clearly within the rule relating to excusa- ble 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 neighbor (e) Cresswell, J., Coxhead v. Richards, Bell v. Parke, lo Ir. C. L. R. 284. S C. B. 605. Bennett v. Deacon. Id. 633. 328 THE LA W OF TORTS. [Ch. XVII. the defendant would have been not only justified in making, but would have been bouad to make, the disclosure. (/) ' 1099. Privileged communications by persons having a pecu- niary interest involved in the matter of the communication. — Communications made by a person immediately concerned in interest in the subject-matter to which it relates for the pur- pose 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 libel. Where a letter was written confidentially to certain bankers, conveying charges injurious to the profes- sional 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 bona fide under the impression that his statements were well founded, it was held that the communication was privileged. " If a communication of this sort," observes Lord Ellen- borough, " which was not meant to go beyond those imme- diately interested in it, were the subject of an action for dam- ages, it would be impossible for the affairs of mankind to be conducted." {£) Among the various communications which have been held to 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 whose pecuniary interests required the infor- mation to be given, {h) and communications respecting the character of servants. "^ (/") Tindal, C. J., Coxhead v. Richards {g) M'Dougall v. Claridge, i Campb. 2 C. B. 596. Wilson V. Robinson, 7 Q. 266. B. 68. Willes, J;, Amann v. Damm, 8 {h) Blackham v. Pugh, 2 C. B. 611. C. B., N. S. 602. ' Sunderlin v. Bradstreet, 46 N. Y. 188 ; Taylor v. Church, r E. D. S. (N. Y.) 279. = In Sunderlin v. Bradstreet, 46 N. Y. 18S, the court laid down the rule that a communication is privileged when made in good faith to one having an interest m the information sought ; and that the same rule prevails even though the informa- tion is volunteered, if it is communicated to one having an interest therein, and stands in such a relation to the j>erson making it, that it is a proper or reasonable duty on his part to give the information. As to the rule in such cases sec Phi-a. &c. R. R. Co. V. Quigley, 21 How. (U. S 202 ; Burrows v. Bell, 7 Gray (Mass,; Sec. I.] LIBEL AND SLANDER. 329 1 100. Reckless and inconsiderate communications. — But it is not sufficient 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 bona fide and without malice. A man has no right, as we have seen, to make himself the medi- um 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 statements unfavorable to another, ought to be prepared to show that he had some reasonable grounds for it. There is a wide distinction between reckless assertions made by a man who assumes to have a knowledge of the facts he com- municates, and honest communications made with a view to inquiry and information by a person interested in knowing the truth, (z) If a question is asked concerning the charac- ter of another, the person interrogated is not justified in giv- ing a damaging answer, unless he has some fair and reason- able foundation for it. ' 1101. Disclosures made bona fide in the course of an investi- gation set on foot by the plaintiff himself are also privileged and protected. If, therefore, the plaintiff, or another person at the plaintiff 's request, writes to the defendant asking for information on some point affecting the plaintiff's character, and the defendant merely relates bona fide what he has heard, the communication is privileged, {li) Where the defendant, if) James v. Boston, 2 Car. & K. 7. (k) Hopwood v. Thorn, 8 C. B. 316. Warr v. Jolly, 6 C. & P. 4g7. 301 ; Gassell v. Gilbert, 6 Id. g4 ; Washburn v. Cook, 3 Den. (N. Y.) no ; Lewis V. Chapman, 16 N. Y. 369 ; Farrsworth v. Storrs, 5 Gush. (Mass.) 412 ; Elam v. Badger, 23 111. 49S ; O'Donoghue v. M'Govern, 23 Wend. (N. Y.) 26 ; Van Wyck v. Aspinwall, 17 N. Y. 190 ; Gray v. Pentland, 4 S. & R. (Penn.) 420 ; Taylor v. Church, 8 N. Y. 452 ; Lawler v. Earle, 5 Allen (Mass.) 22 ; Hatch v. Lane, 105 Mass. 394 ; Knight v. Gibbs, 3 N. & M. 469. ' Hill V. Miles, 9 N. PI. 9 ; Powers v. Dubois, 17 Wend. (N. Y.) 63 ; Simmons V. Halsler, 13 Minn. 249 ; Kemlee v. Sass, 12 Mo. 499 ; Edsall v. Brooks, 2 Robt. (N. Y.) 79 ; Woodburn v. Miller, Cheves (S. C) 194 ; Sheckell v. Jackson, 5 Cush (Mass.) 25. 330 THE LA W OF TORTS. [Ch. XVII. 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 had been robbing him ; whereupon each brought an action for the words so spoken to the other, it was held that the statement was privi- leged. (/) . . . ■ Answers to inquiries, therefore, made by persons in- terested in making the inquiry are privileged, if they are given bona fide in 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 true 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 bona 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 dif- ferent." 1 102. Communications between subscribers to charities. — Words spoken by one subscriber to a charity in answer to mquiries 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 drcumstances, a privileged communication. " There may be i thousand subscribers to a charity," observes Lord Denman. " Such a claim of privilege is too large." (p) 1 103. Privileged communications 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 communications of a criminatory character, is that of a former master giving the character of a discharged (^ Manby v. Will, 18 C. B. 544. (») Griffiths v. Lewis, 7 Q. B. 64. («) Cockayne v. Hodgkisson, 5 C. & {0) Martin v. Strong, 5 Ad.& E. 53»' P. 543. Sec. I.] LIBEL AND SLANDER. 331 servant, which, if given with honest}' of purpose to a person who has any interest in the inquiry, is a privileged communi-i cation, 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 vari- ous proofs : one may be that the statement is false to the knowledge of the person making it, and if there is any evi- dence of willful untruth in the statements as to character there is evidence of malice to be submitted to a jury. Gen- erally speaking, anything said or written by a master when he gives the character of a servant, is a privileged communi- cation, if made bona fide in answer to inquiries that have been addressed to him. It is not essential that the person making the communication should be put into action in con- sequence of a 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 him- self in motion to induce that other to seek information and put questions to him. The answers to such questions given bona fide, with the intention of communicating such facts as the other party ought to know, will, 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 jury, whether the defendant has acted bona fide, intend- ing 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 bona fide will be required than in the case where he has given the character after being requested so to do. {q) ' (p) Toogood V. Spyring, I C. M. & R. ig) Pattison v. Jones, 8 B. & C. 578. 193. Weatherston v. Hawkins, I T. R. See Fryer v. Kinnersly, 33 Law J., C. no. P. 97. ' White V. Nicholls, 3 How. (U. S.) 266 ; Fowles v. Bowen, 30 N. Y. 20 ; Smith V. Higgins, 16 Gray (Mass.) 251. In Dale v, Harris, 109 Mass. 193, the defendant kept a shop in Lowell for the sale of dry goods, and the plaintiff was in his employ as a clerk. Having dis- covered, as he believed, a loss of about $1,800 in the shop, he told the city mar- shal of his loss and his suspicions that the plaintiff was the thief. The marshal went with him to the store, and there, in the presence of the marshal and other" 332 THE LAW OF TORTS. [Ch. XVII, If the employer has received credible information of the misconduct 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 communication, if made bona fide, 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 mak- ing the communication, then it is not protected. If, there- fore, 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 anni- hilated. 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 against the servant will be considered reckless and unfounded, and there will be evidence of malice for a jury, [t) Where a libel imputed to the plaintiff incompetency and unskillfulness in a particular transaction in which the plain- (r) Child V. Affleck, g B. & c. 403. Ace. in the case of a governess, Fountain {s) Gardner v. Slade, 13 Q. B. 801. v. Boodle, 3 Q. B. 11. (t) Rogers v. Clifton, 3 B. & P. 591. he repeated his suspicions. The court charged the jury that what was said by the defendant to the marshal alone, or what might be said to any individual who sought information with a view to employing the plaintiff, if made in good faith, would be privileged, but that as to such a charge not made confidentially, but in the presence and hearing of others, liability would attach unless the truth of the charge was established. The plaintiff had a verdict for $2,100, which was upheld on appeal. Sec. I.] LIBEL AND SLANDER. 333 tiff had been employed by the defendant, it was held that it was not competent to the plaintiff to give'evidence of general competency and skillfulness, without meeting the specific instance relied upon by the defendant, {u) Where the plaintiff, being secretary of an association called the Brewers' Company, was dismissed for alleged misconduct, and the defendant, who was a director of the company, and also a director of another company, called the London Necropolis Compan)^ 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 Compan}', make the communication he did, although it charged the plaintiff with the actual commission of the offense imputed to him, or amounted to an assertion on the defendant's part that he be- lieved 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 defen- dant was not actuated by^a justifiable motive, but by some evil intention towards the plaintiff, {x) II04. 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 communica- tion was made, rebuts the inference of malice, prima 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 per- sonal spite or ill-will, independant of the occasion on which the communication was made." (^) 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 («) Brine v. Bazalgette, 3 Kxch. 694. ante. (a:) Harris v. Thompson, 13 C. B. 3-18. (/) Wright v. Woodgate, 2 Cr, M. & See Lawless v. Anglo-Egyptian Co., R. 577. 334 THE LA W OF TORTS. [Ch. XVII. words used were stronger than the occasion justified. (g\ 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 b|usiness with another, has aright to use language, bona 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 de. fendant claimed a sum of money from the plaintiff, and the pfeintifTs clerk wrote, by direction of the plaintiff, to the de- fendant, 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 com- ment was not privileged, and was libellous and actionable, ia) ' 1 105. 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 send- ing a privileged communication to the wrong person, destroys the privilege, and subjects the party making the communica- tion to an action ; or how it would be if a gentleman asked- by letter for the character of a servant, should, bona 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. {B) 1 106. 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 (z) Brown v. Croome, 2 Stark. 297. (a) Tiison v. Evans, 12 Ad. & E. 733. Godson V Home, i B. & B. 7. Blagg {b) Harrison v. Bush, 5 Ell. & Bl. 350. V. Sturt, ante. ' Fry V. Bennett, 3 Bos. (N. Y.) 200 ; Van Wycke v. Guthrie, 4 Duer (N. Y.), 208 ; Stanley v. Webb, 4 Sand. (N. Y.) 21 ; Edsall v. Brooks, 26 How. Pr, (N. Y.) 426 ; Gasset'. v. Gilbert, 6 Gray (Mass.) 94. Sec. I.] LIBEL AND SLANDER. 335 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 in- 1 structed-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 all 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 be libellous and actionable are, where the account pub- lished has been false or highly colored, or where the reporter has added comments, allegations, and opinions of his own, reflecting upon the character or conduct of others, {d') or where the matters given in evidence and published are of a grossly scandalous, blasphemous, or immoral character, {e) 1 1 07. 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 inquiries before magistrates is universally law- ful, nor that the publication of such inquiries is universally unlawful. One of the resolutions of this court, in Duncan v. Thwaites, (/) lays down the doctrine that the report of a preliminary examination before a magistrate is unlawful, where the party accused has been committed or held to bail for an indictable offense ; there the actual pendency of a pro- secution 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 lib- erty to hold that an impartial and correct report of the pro- ceedings 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- (f) Saunders v. Mills. 6 Bing. 2l8. {d) Stiles v. Nokes, 7 Fast, 492. Hoare v. Silvertock, 9 C. B. 20 ; 19 Law Lewis v. Clement, 3 B."& Aid. 710. An- J.. C. P. 215. Beauchamps (Ld.) v. drews v. Chapman, 3 C. & K. 288. Croft, Dyer, 285a. Curry v. Walter, I {e) Rex v. Carlile, 3 B. & Aid. 169 E. & P. 525. Lewis V. Walter, 4 B. & (/) 3 B. & C. 556. Aid. 614. 336 THE LAW OF TORTS. [Ch. XVII. ment of the 'evidence, or some aggravation attervding the pub- lication of the report, or some peril which was likely to be caused to the person complaining of it." (^) ' The privilege is not confined to the publication of the pro- ceedings of the superior courts. The dignity of ^he court can not be regarded, and " no distinction can be made for this purpose between a court of pie poudre and the House of Lords." A magistrate, upon any preliminary inquiry respecting an indictable offense, may, if he thinks fit, carry on the inquiry in private, and the publication of any such proceedings before him 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 accom- modated, 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 Kenyon, " may fairly and candidly comment on any placti or species of public entertainment, but it must be done with out malice or view to injure or prejudice the proprietor ii' the eyes of the public. If fairly done, however severe thi (») Davison v. Duncan, 7 Ell. & Bl. Exch. 133. See Cox v. Feeney, 4 F- ^t 831 ; 26 Law J., Q. B. 106 ; 7 H. & N. F. 13. 89. Popll«m V. Pickburn, 31 Law J., {0) Carr v. Hood, cited in Tabart » Tipper, i Campb. 357. • Lewis V. Fenn, Anth. N. P. (N. Y.) 75 j 5 John. (N. Y.) I. Sec. I.J LIBEL AND SLANDER. 335 censure, the justice of it screens the editor from legal anim- adversion ; but if it can be proved that the comment is mal- evolent, and exceeds the bounds of fair opinion, then it is a libel and actionable." (/) And the same rule applies to an article in a newspaper upon a debate in either House of Parliament upon a subject of public interest. It must be honest, and fair, /. e., the writer must believe it to be true or just, and it must be made with a reasonable degree of judg- ment and moderation, [q) illl. Criticisms by one public journalist upon another. — It is competent to one public writer to criticise another and ridicule his 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 dishonorable conduct. In that respect, the editor of a newspaper enjoys a right of protection ii.. common with every other subject, (r) A paragraph in om. 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 dam- age the sale of the paper and diminish the profits from adver- tising, is) 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 mistaken, in point of taste, that opinion may be, or however unfavorable to the merits of the author or artist, the person entertaining it is not precluded by law from its fair, reasona- ble, 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 ac- tionable." (i") 1 1 12. Criticisms upon handbills and advertisements. — If a man circulates a printed handbill, or posts it up in a public thoroughfare, or advertises in the public papers, the hand- (/) Dibdin v. Swan, i Esp. 26. 3 Stark. 97. Campbell v. Spottiswoode, ^) Wason V. Walter, ante. 32 Law J., Q. B. 185. (r) Ld. Ellenborough, Stuart v. Lovell, (s) Heriot v. Stuart, i Esp. 436. (/) Soane v. Knight, M. & M. 74. 340 THE LAW OF TORTS [Ch. XVII. bill, 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 writ ing of advertisement, {u) 1 1 13. Criticism iipon sermons and clergymen. — The law per- mits comments 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 remarkably 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 or- dinary mode of a clergyman's duty in the parish church does not make the sermon public property, so as to invite observa- tion 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, {x) And all reflections upon the private character or conduct of the clergyman, calculated to bring him into disrepute with his parishioners, are libel- lous and actionable. However, 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 com- rnents upon it, unless stronger language is used than the oc- casion justifies (which is a question for the jury), are not ac- tionable, {y) 1 1 14. 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 concern 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 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 (») Paris V. Levy, 30 Law J., C. P. 344. Hearne v. Stowell, 12 Ad. & E. u. 719. (x) Gathercole v. Miall, 15 M. & W. (y) Kelly v. Tinling, L. R., i Q- »■ 698. Sec. I.] LIBEL AND SLANDER. 341 you have no right to impute to them such conduct as dis- graces and dishonors them in private life." {z) ' 1 1 15. Disparaging criticisms by one tradesman upon the goods of a rival tradesman 2X& 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 his report was no libel upon the plaintiff if it was the result of a bona fide examination and comparison of the two oils, and contained nothing that was false to the knowledge of the defendant at the time he published and circulated it. (ci) But where a gunsmith pub- lished an advertisement in a newspaper of his being the inven- tor 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 ex- periment, &c., it was held that this was a libel, for though any one in the trade might contradict the fact asserted re- specting 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 ; but 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 alle- gation that he would not engage with any other artist was setting him below the rest of the trade, {b) ^ («) Parmiter v. Coupland, 6 M. & W. B. 6. Io8. ip') Harman v. Delaney, I Barnard, (a) Young v. Macrae, 32 Law J., Q. 289 ; 2 Str. 898. ' In Snyder v. Fulton, 34 Md. 128, the court laid down what seems to be the true rule in reference to comments upon the acts of public officers, and what indeed seems to be the generally accepted doctrine. " The editor of a newspaper," said tha court, " has a right honestly to discuss all matters of public interest, and to comment on and criticise fairly the public acts of official persons." But such privilege does not include the right to make wanton, reckless and unfounded charges against either public or private citizens ; any person doing so, does it at his peril, if they are untrue and unfounded. See also Wilson v. Fitch, 41 Cal. 363. ' Boynton v. Remington, 3 Allen (Mass.) 397. 342 THE LA W OF TORTS. [Ch. XVII. SECTION II. OF VERBAL SLANDER. II16. 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 contradic- tory character. "They are," observes Pratt, C. J„ "very odd cases." {c) At one period the court seem to have regarded actions for slander, by word of mouth, with great disfavor, and to have done all they could to discourage them ; at another time they favored the action, because men's tongues were growing more and more virulent and danger- ous, 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 slanaer, 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 ac- commodation afforded by a particular inn, or of the wine sold therein, or of the surveys furnished by a particular sur- veyor, (e) At another period we find judges lamenting the the frequency of scandals and the license given to the tongue of the slanderer, and expressing their surprise that cases are to be found in the books in which a clergyman failed to ob- tain compensation in damages for an imputation of adul- tery, (/) and that a schoolmistress had been declared hicom- petent to maintain an action for verbal charges of prostitu- tion, {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 (c) Button T. Heyward, 8 Mod. 24. (/) Parrot y. Carpenter, Cro. Elir. id) Harrison v. Thornborough, 10 502 ; Noy, 64. Mod. 198. (^) Per Twisdem, J., Wharton 1. (e) King v. Lake, 2 Ventr. 28. Crofts Brook, I Ventr. 21. Wilby v. Elston, 3 V. Brown. 3 Bulstr. 167. C. B. 142. Ld. Denman, C. J., Ayre v. Craven. 2 Ad. & E. 7. Sec II.] VERBAL SLANDER. 343 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." {h) 1117. Defamatory words not actionable without special dam- age. — 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 L man a scoundrel, or blackguard, or a swindler, or a rogue, or to say of a man, " You are a fellow, a disgrace to the town, and unfit for decent society, on account of your conduct with 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 ; {Ji) nor to say of a young lady that she is a notorious liar, an infamous wretch, and has been all but seduced by a notorious libertine. (/) Words imputing to a lady that she gets her living by imposture and prostitution, and that she is a swindler, are not actionable without special damage ; {tfi) nor the words, " He is a rogue, and has robbed and cheated his brother-in-law of upwards of ^2000." in) 1 1 18. Defamatory words actionable per se without proof of any special damage. — But words imputing an indictable offense 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, {p) forgery, the receipt of stolen goods, knowing them to be stolen ; (/) the careless or unskil- ful administration of mercury, or any other poisonous or dangerous drug, and thereby causing death ; {g) the keeping of a bawdy-house, (f) or the doing of any other criminal or indictable offense. But words conveying only a vague sort of suspicion in the mind of the speaker, {s) uttered bona fide {h) Baker v. Pierce, 6 Mod. 24. For- {in) Wilby v. Elston, 8 C. B. 142. fescue, J., Button V. Heyvvard, 8 Mod. 24. (k) Hopwood v. Thorn. Id. 313. (z) Lumby v. Allday, I Cr. & Jerv. 301. {o) Heming v. Power, 10 M. & W. Savile v. Jardine,'2 H. BI. 531. 570. {k) Barnett v. Allen, 3 H. & N. 376 ; (/) Alfred v. Farlow, 8 Q. 854. 87 Law J.. Exch. 412. \q) Edsall v. Russell, 5 Sc. N. R. 801. (/) Lynch v. Knight, 9 H. of L. Ca. {r) Brayne v. Cooper, 6 M. & W. 250. 577. (j) Tozer v. Mashford, 6 Exch. 539. 544 THE LAW OF TORTS. [Ch. XVII. with a view of obtaining information, or by way of warning, or spoken in grief and sorrow for the news, {i) will not create any cause of action, as the circumstances rebut the presump- tion of malice ; nor any words of mere suspicion or opinion, which do not convey any positive imputation of guilt; («) 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) ' (/) Crawford v. Middleton, i Lev. 82. Defamation, F. 13. {ti) Com. Dig. Action on the case for ( x) Peake v. Oldham, Cowp. 275, ' In order to make words actionable by reason of their slanderous nature or imputation, they must either be slanderous /^r se, or because they damage him specially. Words slanderous /^r j^ so as to be actionable, must either impute to him some infamous crime, or must be spoken of him in his office, trade, occupation or business, and be of such a character as to injure him therein. Kimmis v. Stiles, 44 Vt. 351. And they must be spoken (7/ him to some third person. Words spoken to the plaintiff alone are never actionable. Broderick v. James, 3 Daly C. Pi (N. Y.) 48. Neither is it actionable per se to say of a married woman " she has a vene- real disease, and has given it to C. W. a married man," because the words of them- selves do not import that she had committed adultery, nor can they be extended to cover such a charge by an innuendo. But to say of a married woman that she has held illicit intercourse with a man, or words that convey the charge directly, as " C. W. has the venereal disease," and in answer to a question as to where he got it, "I don't know, but he has been with ," a married woman, is actionable per se. York v. Johnson, 116 Mass. 4S2. Thus it will be seen that in order tomake words aoiXo-aahXe per se they must impute a crime to the person to whom they are spoken, in such terms that, without the aid of innuendo, the nature of the offense charged is obvious. Thus it has been held actionable per se to say of another " He has sworn false to my injury, six or seven hundred dollars." Jacobs v. Tyler, 3 Hill. (N. Y.) 572 ; Magee v. Stark, i Humph. (Tenn.) 506. Thus to say of a person, " he is a thief," is actionable //"rj^, as it imputes larceny without the aid of an innuendo. McNamara v. Shannon, 8 Bush. (Ky.) 557. But to say of a person, " he is a thief, he picked my corn and carried it away," is not ac- tionable, because the application of the term is qualified, and nullifies itself, because growing corn is not the subject of larceny, and this seems to be the rule, even though by statute the taking of growing corn is made a misdemeanor. Stitzell v. Reynolds, 67 Penn. St. 54. So it is actionable ^^>" se to say of another, " he is a perjurer." Green ^. Long 2 Cal. (N. Y.) 91. But to say of another, "he has sworn falsely," is not actionable per se, because, without the aid of an innuendo, it does not impute an indictable offense, and is not actionable at all unless alleged precisely and shown to have been intended to charge the person with having sworn falsely in an action and upon a material matter. Kimmis v. Stiles, ante ; Vaughan v. Havens, 8 Johns. (N. Y.) 109; Watson V. Hampton, 2 Bibb. (Penn.) 319 ; Sherwood v. Chace, 11 Wend. (N. Y.) 38 ; Crookshank v. Gray, 20 Johns. (N. Y.) 344 ; Power v. Miller, 2 McCord (S. C.) 330 ; Ross v. Rouse, i Wend. (N. Y ) 475 ; Stafford v. Green, i Johns. (N. Y.) 505 ) Sec. II.] VERBAL SLANDER. 345 1 1 19. In what cases actionable words are rendered not action- able by precedent or subsequent words. — -Simply to call a man "thief" is prima facie actionable, as it imputes felony, but if it appears that the word was used as a mere term of abuse, Shaffer v. Kintzer, I Binn. (Penn.) 537 ; Robertson v. Lea, I Stew. (Ala.) 13S ; Ward V. Clark, 2 Johns. (N. Y.) 10 ; Harvey v. Boies, I Penn. 12 ; Packer v. Spangler, 2 Binn. (Penn.) 20. " He will be a bankrupt in six months ; " Else v. Ferris, Anth. (N. Y.) 23. To say of a physician, " he has killed the child by giving it too much calomel ; " Johnson v. Robertson, 8 Port. (Ala.) 486. To say of a person, " he removed my land-mark;'' Young v. Miller, 3 Hill, (N. Y.) 21 ; "You have been cropped for felony ; " Wiley v. Campbell, 5 Monr. (Ky.) 396. To charge a person with forgery of a deposition ; Atkinson v. Riding, 5 Blackf. (Tnd.) 39. To charge a person who has the custody of goods, with stealing them ; Gill v. Bright, 6 Monr. (Ky. 130. To say to a person "you are a thieving fellow, you stole and ran away ;" Alley V. Neeley, 5 Blackf. (Ind.) 200. To call one a "thief," or a " murderer ; " Dudley v. Robinson. 2 Ired. 141, To charge a person with adultery where the offense is punishable as a felony; Smalley v. Anderson, 2 ilonr. (Ky.) 56. To charge a person with arson ; Wallace v. Young, 5 Monr. (Ky.) 155. With kid- napping another and hurrying him into slavery; Nash v. Benedict, 23 Wend. (N. Y.) 645. Saying to a witness, while giving his evidence in court, " I believe you sweir false, it is false what you say ; " Cole v. Grant, 3 Harr. 327. Or, " It is false. I believe it is false. That is false;" Id. To charge a partner with "pilfering" goods from the store ; Beckett v. Sterett, 4 Blackf (Ind.) 499. To charge a person with robbing the mail ; Jones v. Chapman, 5 Id. 88. To charge a person with passing a forged check knowingly; Thom v. Moser, I Den. (N. Y.) 48S. "You will steal," spokeu in such a way as to show that the speaker intends to convey an idea that the person designated has stolen ; Cornelius v. Van Slyck, 2r Wend. (N. Y.) 70. " You swore false at the trial of your brother J." ; Fowle v. Robbins, 12 Mass. 498." " I will venture anything he has stolen my book ; " Nye v. Otis, 8 Mass. 122. " He swore to a lie, on a trial before Squire T.," Squire T. being a justice of the peace ; " Canterbury v. Hill, 4 S. & P. (Ala.) 224. To charge a post- master with embezzling letters ; Cheadle v. Buel, 6 Ham. (Ohio) 67. " I lost ray v/atch, and I have reason to think that T. took it, and that her mother concealed it ;" Miller v. Miller, 8 Johns. (N. Y.) 74. " I saw A. taking corn from B's. crib twice, and looking around to see if anyone saw him ; " Jones v. McDowell, 4 B bb. (Penn.) 188. " Tell him he is riding a stolen horse, and has a stolen watch in his pocket ; " Davis v. Johnston, a Bailey (S. C.) 579. Calling a man n " hog thief ; " Hagg v. Wilson, I N. & M. (S. C.) 216. " I can prove that C. burnt J's. gin house," or " C. was in a condition about the gin house, previous to its burning, which caused everybody in the settlement to believe that he burnt the house ; " Waters v. Jones, 3 Port. 442. " I have every reason to believe he burnt the barn," or " I believe he burnt the barn ; " Logan v. Steele. I Bibb. (Penn.) 593. And thus generally all words which in themselves, without the aid of an innuendo, impute a crime or mis- demeanor, punishable in the temporal courts by corporeal punishment, are actiona- ble per se, the law implying malice without any other proof thereof than the bare speaking of the words. Words not actionable pef se, may yet be actionable by reason of the special damage they produce, or by reason of their having been spoken of or concerning a person in his trade, business, occupation or calling. Demarest v. Haring, 6 Cow. (N. Y.) 76, 346 THE LAW OF TORTS. [Ch. XVII. 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 a con- versation respecting the plaintiff's refusal to pay over some money which he had received as executor, Lord Ellenbor- OUGH directed a non-suit, saying that it was manifest from 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 accprapanying words or the surrounding circum- stances they believe that the defendant did not intend to im- pute 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 piaintiff's being a thief, manifestly showed that he was no thief at all, and that no theft had been committed. («) ' (^) Thompson v. Bernard, I Campb. cote, 2 B. & P. N. R. 335. 47. Cristie v. Cowell, i Peake, N. P. («) Wilk's case, i Roll. Abr. 51, Brit C. 5. tridge's case, 4 Rep. Ig, Bac. Abr, Slan (0) Mansfield, C. J., Penfold v. West. DER, R. ' In order to render words spoken or written, actionable, it must appear. tha' they were spoken or written in a slanderous or libellous sense. That is, that they were not qualified or spoken in such a sense as to show that they were not intended to convey the meaning ordinarily given to the words, and they must have been un derstood by those who heard them, in a slanderous sense ; Stoddard v. Linville, 3 Hawks. (N. C.) 474 ; Kennedy v. Gififord, 19 Wend. (N. Y.) 296 ; Dorland v Patter.son, 23 Wend. (N. Y.) 422 ; McKee v. Ingalls, 4 Scam. (111.) 30; Dyers v. Morris, 4 Mo. 214 ; they must contain and import an express implication of some punishable offense ; Brite v. Gill, 2 Mon. (Ky.) 363 ; Chaddock v. Briggs, 13 Mass. 248 ; or be such as import a slanderous meaning, for if they are not intended to convey a slanderous meaning and are not so understood by those to whom they are addressed, they are not actionable ; Pegram v. Styrom, i Bailey (S. C.) 595 ; Sprout V. McDowell, Const. (S. C.) 35 ; or, if words that, unexplained, would be actionable, are at the time of their speaking so qualified or explained as to show that they impute no legal crime, or are not intended to convey a slanderous mean- ing, no action lies for their speaking; Pegram v. Styron, ante; Trabufe v. Mays, 3 Dana (Ky.), 138 ; but, even though the words are spoken in reference to a tran.s- action in itself innocent, and are so understood by some who were 'present at their speaking, yet if others were present who did not so understand them, and no ex- planation is made, they are actionable ; Phillips v. Barker, 7 Wend. 439. It was formerly the practice of courts to construe words mitiori sensu and if they were Sec. II.] ORAL SLANDER. 347 1 120. Defamatory words imputing to the plaintiff that he is afflicted with a contagious 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 him to be shunned and avoided by society, {b) The imputation must refer to the time present, and not to the time past, for words are not actionable which merely impute to the plaintiff that at some previous period he had the disease, {c) ' {])) Bloodworth v. Gray, 7 M. & Gr. (c) Carslake v. Mapledoratn, 2 T. R. 334 ; 8 Sc. N. R. g. James v. Rutlech, 475.- 4 Rep. 17b. susceptible of /wo meanings, they would give them the milder one, and if in that sense they were not actionable, the action failed, even though in the ordinary sense in which the words were used, they would be actionable. Coote v. Gilbert, Hobart, 77 Vt. 100. But this rule originated from a disposition to discourage ac- tions for slander, and as it was clearly unjust and unreasDnable, it was long since exploded, and the better and more sensible rule adopted, that words are to be taken in their ordinary acceptation, and according to their usual and natural import, unless qualified or explained in such a way as to clearly indicate that they were spoken and understood in a different sense ; Gibson v. Williams, 4 Wend. (N. Y.)- 320; Button V. Hayward, 8 Mod. 24 : Bush v. Sommer, 20 Penn. St. 159 ; Duncan V. Brown, 15 B. Mon. (Ky.) 186; Backus v. Richardson, 5 Johns. (N, Y.) 176 j Woodbury v. Sackrider, 2 Abb. Pr. (N. Y.) 405 ; Holt v. Schofield, 6 D. & E. 691 ; Edgerly v. Swain, 32 N. H. 478 ; Gosling v. Morgan, 32 Penn. St. 273 ; Joralemon V. Pomeroy, 2 N. J. 271 ; Van Rensselaer v. Dale, Johns. Cas. (N. Y.) 279 ; and in all cases where the words are susceptible of two meanings, it is for the jury to say in which sense they were used ; Welsh v. Eakle, 7 J. J. Mar.'ih (Ky.) 424. It is not necessarily the case that words are actionable, because they were understood by those who heard them, as imputing a crime, but they are to be con- strued iu the light of all explanatory circumstances known to the speaker and tiie hearers, and the sense in which they would, in view of such circumstances, naturally be understood. Thus, where a shoe dealer said " I have missed a pair of shoes and you took them," it was held, that the fact that the plaintiff was known to have taken one pair, and possibly two, home with him for trial, which fact was known to the persons present, was proper to be considered in determining whether the defen- dant intended to impute a theft of the shoes. Dixon v. Stewart, 33 Iowa, 125. ' Mons V. Field, 9 R. S. 2l6 ; Pike v. Van Wormer, 5 How. Pr. (N. Y.) 171 ; Joannes v. Burt, 6 Allen (Mass.) 236 ; Williams v. Haldridge), 22 Barb. (N. Y.) 398 ; Goldman v. Starns, 7 Gray (Mass.) 281 ; Watson v. McCarthy, 2 Kelly (Ga.), 57 ; Hewitt v. Mason, 24 How. Pr. (N. Y.) 366. Kennedy v. Mc- Laughlin, 5 Gray (Mass.) 3 ; Hampton v. Wilson, 4 Dev. (N. C.) 468 ; San ford V. Bennett, 24 N. Y. 20 ; Knight v. Foster, 39 N. H. 576 ; Smally v. Ander son, 4 Monr. (Ky.) 367 ; Clarke v Munsell, 6 Met. 373 ; Curtis v. Mussey, 6 Gray (Mass.) 261 ; and the fact that similar reports existed in the community, or had been published in the newspapers, is not admissable in evidence, in defense; Watson V. Buck, 5 Cow. (N. Y.) 499 ; Kennedy v. Gifford, 19 Wend. (N Y.) 296; 348 THE LAW OF JORTS. [Ch. XVII. II2I. 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 action- able when spoken of a person having no trade or profes- sion. id) 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 bank- ruptcy or insolvency to a person engaged in trade, such as " if he does not come and make terms with me, I will make a bankrupt of him, and ruin him." (^) 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 dam- age, to say of a gamekeeper that he kills foxes, (h) ' ((/) Per. Cur. Harman v. Delaney, 2 Denman, C. J., Robinson v. Marchant, 7 Str. 898. Q. B. 918. {e) Griffiths v. Lewis, 7Q. B. 65. (K) Foulger v. Newcomb, L. R., 2 . . (_/) Reeve v. Holgate, 2 Lev. 62. Exch. 327. (^) Brown v. Smith, 13 C. B. 599. Ld. Mapes v. Weeks, 4 Wend. (N. Y.) 659 ; Maberly v. Preston, 8 Mo. 462 ; nor is it any defense that the defendant merely spoke the words as a report ; Wheeler v. Shields, 2 Scam. (111.) 348; and gave the author; Skinner v. Grant, 12 Vt. 456; Jones V. Chapman, 5 Blackf. (Md.) 88. But in some cases it has been held that such facts may be shown in mitigation. Anthony v. Stevens, i Mo. 254 ; Kennedy V. Gregory, I Binn. (Penn.) 85; Romayne v. Duane, 3 Wash. (U. S.) 246; Calloway v. Middleton, 2 A. K. Marsh. (Ky.) 72 ; Leister v. Smith, 2 Root (Conn.) 24 ; Young ■). Hemans, Wright (Ohio), 124. ' To say of any person whose business necessarily leads to dealing on credit, that "he keeps false books," is actionable ; Rathburn v. Emigh, 6 Wend. (N. Y.) 407; as of a blacksmith, Burtch v. Nickerson, 17 John. (N. Y.) 207 ; or a merchant; Backus V. Richardson, 5 John. (N. Y.) 476. So any words, the natural effect of which is to injuriously affect the business of a person, as of a physician, that he killed a person by an overdose of calomel, or giving him too much medicine ; Johnson v. Robertson, 8 Port. (Ala.) 476 ; Sumner v. Utley, 7 Conn. 258 ; or of a merchant, anything which implies that he is not entitled to credit; Small V. Catlin, 3 Wend. (N. Y.) 291 ; Davis v. Davis, i N. & M. (S. C.) 290 ; Mott V. Comstock, 7 Cow. (N. Y.) 654 ; or to anyone to whom credit is important; Phillips V. Hoeffer, I Penn. St. 62 ; Ostram v. Calkins, 5 Wend. (N. V.) 263 ; Lewis V. Hawley, 2 Day (Conn.) 495 ; or his fitness for his trade or business ; as of a lawyer, that he is not a man of integrity, and will takes fees on both sides Chipman v. Cook, 2 Tyler (Vt.) 456 ; or with divulging his clients' secrets ; Riggs V. Denniston, 3 Johns. Cas. (N. Y.) 198 ; or a minister with being the father of a bastard child; Demarest v. Haring, 6 Cow. (N. Y.) 76; or with drunkenness; Chaddock v. Briggs, 13 Mass. 208. And so, generally, it may be stated, that Sec. II.] ORAL SLANDER. 349 But " if one tradesman will pretend to be a greater artist than others, it is lawful for them to support their own credit in the same way ; " and, consequently, 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 tradesman, recommending his own articles in preference to those of another, it is defensi- ble on account of the interest the defendant has in the mat- ter ; but to say generally of a tradesman that he is in the habit of selling goods which he knows to be bad, is action- able, {i) ■ 1 122. Words imputing misconduct , or gross ignorance, or in- capacity, to professional men, in the discharge of their profes- sional duties, are actionable per se, without proof of an} special damage ; such as words imputing to a practicing physician that he is a quack or a mountebank, (/fe) or that he has killed a patient through ignorance of the first principles of his profession ; (/) or words imputing to a surgeon or ac- coucheur 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 profes- {i) Evans v. Harlow, 5 Q. B. 633. 54. \k) Goddart v. Haselfoot, l Roll. Abr. (/) Tutty v. Alewin, 11 Jlod. 221. words occasioning actual damage, even though not defamatory, may, nevertheless, be actionable ; but in order to render them so, the damage must be the immediate result of the speaking of the words. Bentley v. Reynolds, i McMiillen (Ga.) 16 ; Davis v. Farrington, Walker (Miss.) 304 ; Wilcox v. Edwards, 5 Blackf. (Ind.) 183 ; Else V. Ferris, Anth. (N. Y.) 23 ; Davis v. Ruff, Cheves (S. C.) 17 ; Williams v. Hill, 19 Wend. (N. Y.) 305. ' In Boynton v. Remington, 3 Allen (Mass.), 397, the plaintiff, who was a dealer in coal, advertised genuine Franklin coal for sale by him. The defendant, who was also a coal-dealer, published an advertisement as follows : — " Caution ! The sub- scribers, the only shippers of the true and original Fi'anklin coal, notice that other coal-dealers, in Lowell, than our agent, advertise Franklin coal. \\'e take this method of cautioning the public against buying of crther parties, except if they hope to get the genuine article, as we have neither sold, or shipped any Franklin coal to any party in Lowell, except our agent " The court held that the publication of this notice did not constitute an actionable libel, because it did not impute to the plaintiff anything which held him up to the contempt or ridicule of society, nor did it allege that the plaintiff did not sell genuine Franklin coal. If there had been a denial that the plaintiff sold the genuine Franklin coal, the only ground of liability would have been that the plaintiff was perpetrating 3.frauJ upon his customers. 350 THE LAW OF TORTS. [Ch. XVII. sional brethren that they will 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 ves- sel. (;«) But words conveying an imputation against a medi- cal 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 other- wise. Words imputing to a barrister that he has willfully and corruptly deceived his client, and revealed the secrets of his cause, or that he has given vexatious counsel, and seeks only to fill his own pockets, without regard to' the interests of his clients, are actionable ; (/) and so are words imputing to a practicing 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 secret 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 profes- sion, (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 call an attorney a cheating knave is not actionable, but to say that he cheats bis clients is actionable, {s) In all actions founded on words im- puting to a professional man conduct which disgraces and in- jures him in his profession, it must be averred a.nd 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, {t) To say of a beneficed clergyman that he is drunk in church, or that he preaches false doctrine, lies, and malice, (m) Southee v. Denny, i Exch. 196. (r) Banks v. Allen, I Roll. Abr. 54. (h) Irwin n. Brandwood, 33 Law J., Baker v. Morfue, I Sid. 327. Day v. Exch. 257. BuUer, 3 Wils. 59. ip) Ayre v. Craven, 2 Ad. & E. 2. (s) AUeston v. Moor, Het. 167. (p) Snag V. Gray, I Roll. Abr. 57. (t) Bellamy v. Burch, 16 M. & W. King V. Lake, 2 Ventr. 28, 590. (y) Birchley's case, 4 Rep. l6a. pi. 6. Sec. II.] ORAL SLANDER. 351 and ought to be degraded, («) or that he is an old rogue, and a contemptible fellow, hated and despised by his parish- oners, {x) or that he has preached a seditious sermon, and has moved the people to sedition, (j/) is actionable ; words also imputing fraudulent and dishonest conduct to a beneficed clergyman in some clerical matter, {z) or accusing him of in- continence, 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 speak- ing of the words, the plaintiff is not beneficed, and is not in the actual receipt of professional 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 char- acter, they are not actionable without proof of special dam- age. (5) I123. Words imputing 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 honor, 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 ability 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 man in office, it must be shown that they were spoken of him in his character or conduct in his office, and that they impute to him the want of some qualification for, or miscon- {it) Dodd V. Robinson, Aleyn, 63. 16 Law J., Q. B. 403. Cranden v. Waldon, 3 Lev. 17 ; i Roll. (a) Gallwey v. Marshall, 9 Exch. 295 | Abr. 58. 23 Law J., Exch. 78. (x) Musgrave v. Bovey, 2 Str. 946. {b) Peraberton v. Colls, ut supra^ \y) Brittridge's case, J Co. 19b. () Ward V. Weeks, 4 M. & P. 808 ; 7 ig) Kendillon v. Maltby, Car. & M Bing. 2H. Parkins v. Scott, i H. & C. 402. 153 ; 31 Law J., Exch. 331. 356 THE LA W OF TORTS. [Ch. XVII. calumny, and may be actuated by greater malice than the original utterer." (;-) 1130. 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 evi- dence it appeared that the words were spoken in grief and sorrow for the news, Hobart, J., caused the plaintiff to be non-suited, for it was not said maliciously, {s) ' 1131. Privileged communications — Proof of malice. — We have already seen that many communications and state- ments of a slanderous character are privileged. Where the plaintiff proved that he had been in the service of the de- fendant, 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 rob- bing me ; do not speak to him any more in public or in pri- vate, 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 ot malice in order to raise a question for the jury, it) And where a vestry meeting was held for the purpose of nominat- ing 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 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 bona 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 charac- ter for truthfulness, in order to raise the question as to (r) M'Pherson v. Daniels, 10 B. & C. {s) Crawford v. Middleton, I Lev. 82. 873. Lewis T. Walter, 4 B. & Aid. 615. It) Somerville v. Hawkins, 10 C. B. Tidiaan v. Ainslie, IQ Exch. 63. 590. ' Dixon V. Stewart, 33 Iowa, 125 ; McKee v. Ingalls, ante. Sec. II.] ORAL SLANDER. 357 whether the defendant in making the statement had been actuated by any malicious motive, (u) But although 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 cir- cumstances, 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 in- terviews, may be as much privileged as what passed at the original interview. (^) ' 1 132. Privileged charges of felony made bona fide, with rea- sonable grounds for suspicion. — For the sake of public justice, charges and communications which would otherwise be slan- derous, are protected if bona fide made in the prosecution of an inquiry into a suspected crime. " It is ai-gued," observes Coleridge, J., " that the charge ought to be true, or ought to be made only before an officer of justice. But the exigen- cies 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 other parties would not do away with the privi- lege." It is for the jury to say whether the circumstances warranted the charge made by the defendant, whether it was made bona fide, or before more persons than was necessary, or in language stronger than the occasion justified, {z) '' 1133. Privileged statements and comments by advocates in the course of judicial proceedings, 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 is his duty to speak for his client, and it shall be intended to be spoken (u) Kershaw v. Bailey, I Exch. 743. Wallace v. Carroll, 11 Ir. C. L. R. 485. (x) Senior v. Medland, 4 Jur. N. S. (z) Padmore v. Lawrence, II Ad. & 1039. E. 382. Amann v. Daram, 8 C. B., N. (y) Beatson v. Skene, 5 H. & N. 855. S. 597. ' White V. Nicholls, 3 How. (U. S.) 266 ; State v. Burnham, 9 N. H. 34 ; Swan V. Tappan, 5 Cush. (Mass.) 104 ; Perkins v. Mitchell, 31 Barb. (N. Y.) 467. ' O'Donoghue v. McGowen, 23 Wend. (N. Y.) 26 ; Thorn v. Blanchard, 5 Johni. W. Y.) 508 ; Bunton v. Worley, 4 Bibb. (.Penn.) 38. 358 THE LA W OF TORTS. [Ch. XVII 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 prop- erly to conduct a cause in court unless considerable latitude were allowed to the advocate, and if any evil follow there- from, it 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." {b) 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 imputa- tion which the facts before the court, whether true or false, appear to warrant. " It would be impossible," observes Abbott, J., " that justice could be well administered if coun- sel were to be questioned for the too great strength of their expressions ; but \k\&y ought not to avail themselves of their situation maliciously to utter words wholly unjustifiable." Where, therefore, ai:i attorney was mixed up in the concoc- tion 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 attorrey, that it was one of the most profligate things ever done by a professional man, and that the attorney was a fraudulent and wicked attorney, it was held that these observations and ex- pressions of opinion were privileged. " Perhaps," observes Lord Ellenb6r©UGH, " the words were too strong, and, in the exercise of a cand'Gr fit to be adopted, might have been spared. But still a counsel might, bona fide, think the ex pressions justifiable under the circumstances. " {c) ' 1 134. Defamatory statements by a party in open court con- ducting his own 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 {a) Wood V. Gunstone, Styles, 462. (. 362 THE LAW OF TORTS. [Ch. XVII. tion of the property, the title to which is alleged to be slan- dered, and has acted bona 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 slighest pretense for his interference. "The bona tides of the communication," observes Lord EllenijOROUGH, " and not whether a man of rational understanding would have made it, is the question to be canvassed." {f) 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, [q) " 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 falsehood 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 lie, 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 necessarily lead to an inference of malice, neither does the existence of probable cause afford any answer to the action." {r) (/) Pitt V. Donovan, I,M. & S. 648. 730. (^) Wren ». Weild, L. R., 4 Q. B. {r) Pater v. Baker, 3 C. B 868. Sec. III.] ACTIONS FOR LIBEL ANL SLANDER. 363 SECTION III. OF ACTIONS FOR LIBEL AND SLANDER, {s) 1 138. Consolidation of actions for the same libel. — Where seven different actions were brought against the same defend- ant, for seven different publications of the same libel to differ- ent persons, whicTr might all have been comprised in one ac- tion, the court stayed the proceedings in all of them, except one, until that one had been tried, {t) 1 139. Parties 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 in- directly or remotely affected by the libel. An action of slan- der does not lie by two jointly againt a defendant, when the tort which one received by 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 imprisonment, {u) If, however, defamatory words be spoken of two partners in trade resp.^cting them in their trade, they may maintain a joint ac- tion fc the slander, averring special damage, {x) ' (s) See 30 & 31 Vict. c. 142, s. 10. v. Collins, 10 Moore, 451. \t) Tones V. Pritchard, 6 D. & L. 530; {x) Le Fanu v. Malcolmson, i H. L 18 Law J., Q. B. 104. C. 637. Cook v. Batchellor, 3 B. & P. («) Dyer, 19a. ; Burrough, J., Barrett 150 ; post, ch. 2i. ' Where a libel or slander applies to a class of persons, as such, the action must be in the name of all ; White v. Delavan, 17 Wend. (N. Y.) 49 ; but the mere fart that several aie affected thereby, does not warrant the bringing of a joint action; there must be .such a joinder of interest that the libel or slander affects them jointly, otherwise the action must be in the name of each. Ryckman v. Delavan, 25 Wend. (N. Y.) 186 ; Smart v. Blanchard, 42 N. H. 137. Words spoken of a parinership as such, are only actionable in the name of all the members of the firm, but if the language affects any individual member specially, he may bring an action in his own name, and must, for the special individual damage ; Fidler v. Delavan, 20 Wend. (N. Y.) 57 ; Tait v. Culbertson, 57 Barb. (N. Y.) g ; Taylor v. Church, I E. D. S. (N. Y.) 279 ; so where words relate to both husband and wife, the hu./5f(/ of, &c., without adding "and spoke." Watts v. Greenlee, 2 Dev. (N. C.) 115. Words actionable /«-j^, may be charged in the same count with those not actionable /^r«, in aggravation of damages. Dwyt v. Tanner, 20 Wend. (N. Y.) 190 ; Klumph v Dunn, 66 Penn. St. 141 ; Pennington v. Meeks, 46 Mo. 217. Sec. III.j ACTIONS FOR LIBEL AND SLANDER. 36/ The forms of declaration in the schedule to the above Act merely set forth that " the defendant falsely and malic- iously printed and published of the plaintiff, in a newspaper called, &c., the words following, that is to say, &c., meaning J thereby," &c., and, in cases of verbal slander, "that the de- fendant falsely and maliciously spoke and published of the plaintiif 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. (/) 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 will, if necessar}', arrest the judgment. It is not ne- cessary 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. {?i) ' (/) Griffiths V. Lewis. 8 Q. B. 851. endo which is incorieclly stated, is bad. ' Gallwey v. Marshall, 9 Exch. 294 ; 23 Watkiii v. Hall, supra. Law J., Exch. 78. («) Baldwin v. Elphinston, 2 W. Bl. {ill) Barrett v. Long, 3 H. L. C. 413 ; 1037. and, therefore, a plea answering an innu- ' The office of an innuendo is to set forth the sense in which the words were used, the full extent of the meaning intended hy the use of the words ;poken, and it is the duty of the court as a matter of law to determine whether the words used are susceptible of the meaning ascribed to them, and for the jury to find whether they were used in that sense. Blagg v. Sturt, 10 Ad. & El. (Q. B.) 899. And an innuendo is not necessary where the libel sufficiently appears without it. Id. Peterson v. Sent- man, 37 Md. 140. After verdict, if words which are not of themselves actionable, but may be shown to be so by innuendo, but are not stated with an innuendo, it will be presumed that the jury found that, they were used, and understood in a slanderous sense, and the ver- dict will not fur that cause be set aside. Hoare v. .Silverlock, 12 Ad. X: El. (Q. B.) 633. 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 un- derstand it as used according to the sense which has become familiar, and in which it is generally understood. COLERIDGE, J., in Hoare v. Silverlock, /!?«/£•. A verdict will not be disturbed when there is any ground upon which the construction placed upon the words used can be predicated. Opinion of Earle, J., in same case. When words may or may not be used in a libellous sense, it is for the jury to find whethei they were used in such a sense or not, and their finding will not be distuibef Lord Denman in case, ante 368 THE LA W OF TORTS. [Cn. XVII. 1 143. 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 In an indictment or information for a libel, the word's and the libel must be clearly and distinctly charged, and with legal certainty, that is, with certainty to a common intent. The charge must contain such a description of the offense that the defendant may fully understand what he is called upon to answer, and whatever is necessary to constitute the offense, must be set out. The libel must be clearly and distinctly alleged, and, if it is not expressed in words entirely unambiguous, so as of themselves to amount to a libel, they may be aided by proper innuendos, so that as applied, the libel is made clear and distinct. This is always necessary when the terms of the libel arc general or ironical ; or are spoken by way of allusion or reference, even though every person reading it might put the same construction upon it, because it is by 2tnderstanding something tliai is ?iot expfesssed in direct words Ma/ the libel is made applicable, and therefore something beyond the words themselves are essential to enable the jury to determine the fact, and the nature of the fact on which the whole cliarge depends, which they can not do unless by proper averments the whole matter is placed upon the records, and properly applied. Therefore it often be- comes necessary to set forth extrinsic facts in direct and specific terms, so that tlie record may show hota the words become libellous. This is always necessary when the libel does not in itself contain the crime, and in such cases it should be put upon the record by way of introduction if new matter, or by way of innuendo if it is merely by matter of explanation. In illustration of the rule and to show when cxtrin-iic matter must be placed upon the record, either by direct averment, recitals or general inference, and aided by innuendos properly applied, we will take I>arham's Case 4 Coke, 314. In that case Barham brought an action against Nethersal for slander, for speaking of him these words : " Mr. B did burn my barn with his own hands, and none but he." At that time (1602) it was not a felony to burn a barn unless it was " parcel of a mansion house or full of corn." The plaintiff in his declaration set up the words with innuendo as follows ; " Mr. B (meaning the plaintiff) did burn my barn (meaning that the plaintiff, feloniously, did set fire to his, the (defendant's, barn, then being full of corn), &c." The court held that the declaration was not aided by the innuendo, as the words must of them- selves be sufficient to maintain the action, and that an innuendo can not be used to enlarge or extend their meaning, but only to apply the words. See also Lovet V, Hawthorn, Cro. Eliz. 834 ; Crofts v. Boite, I Saund. 243 ; Rex v. Grepe, 2 Salk. 513 ; Peake v. Oldham, I Camp. 276 ; Rex v. Home. 2 Id. 684 ; Hawkes v. Hawkey, 8 East. 428. In this case it was attempted to extend the meaning of the words spoken, by the aid of the innuendo, without the averment of extrinsic facts. If the ]5laintiffhad alleged that the defendant's barn at the time of the burning thereof was " full of corn," the declaration would have been sufficient, and the action maintainable, if the truth of the extrinsic matter, that the barn was full of corn, had been established. De Grey, J., Rex v. Home, 2 Camp. 684. As to the ofBce of an innuendo, see Nichols v. Packard, l6 Vt. 83 ; McCuen v. Ludlum, 2 Harr. (Del.) 12 ; Weir v. Hess, 6 Ala. 881 ; Croswell v. Reed, 25 Wend. (N. Y.) 621 ; Watts V. Greenleaf, 2 Dev. (N. C.) 215 ; Harris v. Burley, 8 N. H. 256 ; Ryan ». Madden, 12 Vt. 51 ; Linville v. Earlywine, 4 Blackf. (Ind.) 470; Saunderson v. Hubbard, 14 Vt. 462 ; Wood v. Scott, 13 Vt. 42 ; Small v. Clewly, 60 Me. 262; ^undy V. Hart, 46 Mo. 460. Sec. III.] ACTIONS FOR LIBEL AND SLANDER. 369 damage must be particularized 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 neighbors, and the substantial bene- fits arising from their hospitality, this temporal damage should be particularized, and the names of the neighbors and friends who have refused to receive the plaintiff into their houses, and entertain him at dinner, &c., should be spe- cified, {p) Where a single woman brought an action against the defendant for saying she was with child, and had mis- carried, 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. (/) 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 declaration alleges the special damage with as much cer- tainty as the subject-matter is capable of, it is now sufficient. Thus, where the declaration alleged th^t 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 discon- tinued 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, m 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. (f) And in an action for slander 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 gen- eral loss of custom from the slander, without stating the names of the customers who ceased to frequent the estab- lishment, as the customersi of an inn are travelers and per- (0) Moore v. Meagher, i Taunt. 39. (if\ Fenn v. Dixe, i Roll. Abr. 58. '/) Barnes v. Prudlin, i Sid. 396. (r) Huntley v Herring, 8 T. R. 133. II. — 24 370 THE LAW OF TORTS. [Cli. XVII. sons 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) ' 1 144. What may be given in evidence under the plea of not ouilty. 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 parliamentary or judicial pro- ceeding, or in giving the character of a servant, if) If a share- holder 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 pro- tect the interests of the shareholders, and had reasonable ground for making the imputation, {u) The plea of no* guilty puts in issue the tendency of the alleged libel, and also the lawfulness of the occasion upon which it was pub- lished. The fact, therefore, that a libellous pubUcation 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 follow that a defense may not be given in evidence under " not guilty," because it might also form the subject of a special plea, {x) In an action for slander of the plaintiff in his office, profession, or trade, the plea of not guilty will op- erate as a denial of speaking the words, or speaking them maliciously, and in the defamatory sense imputed, and with {s) Evans v. Harries, i H. & N. 251 : Exch. 201. 26 Law J., Exch. 31. (x) Lillie v. Price, 5 Ad. & E. 645. if) Littledale, J., M'Pherson v. Daniels, Hoare v. Silverlock, g C. B. 28. Lucan 10 B. & C. 272. (Earl of) v. Smith, 26 Law J., Exch. 94. itt) Metrop. Saloon Omaibus Co. v. Lewis v. Levy, 27 L. J., Q. B. 287. Hawkins, 4 H. & N. 151 ; 28 Law J., ' Where words are actionable /^>- se, or where the words relate to one in his trade or occupation, special damage need not be alleged, because damage is the necissaiy consequence of the words complained of. But in all cases where special damage is th* gist of the action, the plaintiff must both allege and prove special damage and the allegation must be specific, and such as shows a legal damage. Weir v. Allen, 51 N. H. 177 ; Bostwick v. Hawley, Kirby (Conn.) 296 ; Squier v. Gould, 14 Wend. (N. Y.) 151 ; Birch v. Benston, 26 Miss. 155 ; Barnes v. Trundy, 31 Me. 321 ; Shipman v. Burrows, 1 Hall, (N. Y.) 399 ; Maloney v. Daws, 15 How Pr. 265 ; Herrick v. Lapham, 10 Johns, (N. Y.) 281. Sec. III.] ACTIONS FOR LIBEL AND SLANDER. 371 reference to the plaintifi's office, profession, or trade, but it wil- not operate as a denial of the fact of the plaintiff's hold- ing the office or being 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, {y) 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 them- selves, but forming a ground of action, by reason of specid damage having arisen from the utterance of them, the plea of not guilty puts in issue all the facts creating the special damage; for without those facts, and without 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 allega- tion 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, {b) " {y) Reg. Gen. i6 Vict. ; I Ell. & BI. {a) Smith v. Thomas 2 Sc. 546 ; 2 B. App. Ixxxi. R. 16 ; 15 & 16 Vict. c. 76, N. C. 372. Wyatt v. Gore, Holt, N. P. s. 5i. C. 305 n. (z) Wilby V. Elston, 8 C. B. 149. (b) Robinson v. Marchant, 7 Q. B. Norton v. Scholefield, 9 M. & W. 665. 918. ' Under the general issue, the defendant can not give evidence of the tru/h of words, but he may give evidence in mitigation. Jarnigan v. Fleming, 43 Miss. 710; Mousler v. Harding, 33 Ind. 176 ; Adams v. Smith, 58 111. 417 ; Miles v. Harrington. 8 Kans. 425. And the truth of the words can not be given in evidence even in miti- gation. Haskett v. Brown, 2 Heisk. (Tenn.) 264 ; Brickett v. Davies, 21 Pick. (Mass.) 404. But evidence of the general bad character of ihe plaintiff may be given even where the answer sets up the truth of the*\vords. Young v. Bennett, 4 Scam. (111.) 43 ; Anthony v. Stevens, r Mo. 254 ; Eastland v. Cauldwell, 2 Bibb. (Penn.) 21; but not special acts; Sawyer v. Erbert, 2 N. & M. (S. C.) 511 ; tamos v. Snell, 6 N. H. 413 ; Bowdish v. Peckham, I Chip. (Vt.) 145. And evidence tending to rebut the presumption of malice, is admissible under the general issue. Arrington V. Jones, 9 Port. (Ala.) 139. Or to show that the words were not used in a slanderous lense. Brite v. Gill, 2 Mon. (Ky.) 65 ; Sibley v. Marsh, 7 Pick. (Mass.) 38. Or if the plaintiff prove the speaking of words not laid in the declaration, the defendant 372 THE LAW OF TORTS. [Ch. XVII. 1145. Plea that the libel was inserted without malice or gross negligence, and that an apology was published — Payment of money into court. — By 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 mahce, and without gross negligence, and that before the commence- ment of the action, or at the earliest opportunity afterwards, the defendant inserted in such newspaper, or other periodi- cal publication, a full apology for the libel ; or, if the news- paper or peri(;dical publication is published at inter- vals exceeding a week, that he had offered to publish the apology in anf newspaper or periodical publication, to be selected by the plaintiff; 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 under this statute, the apology should be printed in such a part of the paper, and in such a type, as will be likely to ensure its perusal by the persons who read the libel, or by all who read the paper, (d') When a plea denying actual malice, and stating the pub- lication of an apology is pleaded, the publication of previous libels on the plaintiff by the defendant, is admissible in evid- ence, to show that the defendant wrote the libel in ques- tion with actual malice. A long practice of libelling the plaintiff may show in the most satisfactory manner that the defendant was actuated by malice in the particular publication, and that it did not take place through careless- (c) The special plea of apology and the declaration. O'Brien v. Clement, 15 payment into court can not be pleaded M. & W. 435. along with not guilty to the same part of {d) Lafone v. Smith, 7 W. R. 13. may, under the general issue, prove the truth of those words. Burke v. Miller, 6 Elackf. (Ind.) 165. Or that suspicions as to the guilt of the plaintiff, as to the matter charged, generally existed, or that the defendant heard the report from others, and only repeated what he had heard, may be shown in mitigation. Leister v. Smith, 2 Root (Conn.) 24 ; Hensoi) v. Veatch, I Blackf. (Ind.) 369 ; Calloway v. Middleton, 2 A. K. Marsh. (Ky.) 372. And anything may be shown in mitigation under the general issue that does not amount to a justification. Wilson v. Apple, 3 Ham, (Ohio) 270 ; Bechler y. Steever, 2 Whart i;Penn.) 313; Regden v. Wolcott 6 G.«r J rMd.) 413. Sec. III.] ACTIONS FOR LIBEL AND SLANDER. 373 ness 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 publica- tion of the libel in question, merety affects the weights, not the admissibility, of the evidence, (e) 1 146. Pleas of justification. — To enable the defendant to give the truth of the charge or imputation in evidence as a defense to the action, the defendant must plead a plea of jus- tification, alleging that the plaintiff did the act imputed to him by the libel, and that the defendant therefore published or spoke the words of which the plaintiff 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. (^) It must also, where the libel is in writing, jus- tify everything contained 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 discreditable to him as a gentleman, as well as of a criminal offense, the plea of justification must cover the whole charge, {li) But if the libel contains several charges, the defendant may justify some of them, and plead not guilty as to others, (z) A plea of justification imputing general misconduct to the plaintiff, and giving no specific instances of it, was formerl)' held bad on special demurrer. (/^) 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. (/) The publication and dissemination of written or printed blander can not be justified, as we have seen, on the ground that the libellous matter was previously published by a third (if) Barrett v. Long, 3 H. L. C. 414. may afterwards be put upon his trial for (/) Smitlr V. Richardson, Willes, 20. the felony by that verdict without thein- {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 v. Fields, 3 Esp. 134. Holt, N. P. C. 308 n. {i) M'Gregor v. Gregory, II M. & W {h) Helsham v. Blackwood, 11 C. B. 287. 128. Mountney v. Watton, 2 B. & Ad. (k) Hickinbotham v. Leech, 10 M. & 673. Where a defendant justifies words W. 361. O'Brien v. Clement, 16 Id. which amount to a charge of felony, and 165. proves his justification, and obtains a (/) Buller, J., J'Anson v. Stuart, I T, verdict, it has been said that the plaintiff R. 753 ; 2 bmith's L, C. 6th ed., 5 , > 374 THE LAW OF TORTS. [Ch. XVII, person, and that the defendant, at the time of his publication, disclosed the name of that person, and believed all the state- ments contained in the libel to be true, (in) ' 1 147. Evidence for the plaintiff {n) — Printed placards — Proof of publication. — If a man writes a libel, and 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. {0) 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. (/) If the libel on which the action is founded contains any marked peculiarities in spelling, style, or composition, letters of the defendant concerning the plaintiff containing similar pecu- liarities are admissible in evidence, to show that the defend- ant 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 pub- (?«) Tidman v. Ainslie, 10 Exch. 63. ter persons from purchasing alleged in- M'Pherson v. Daniels, 10 B. & C. 273, fringements of his patent, if be has no overruling the 4th resolution in Lord bona ^fide intention to follow up his Northampton's case, 12 Rep. 134. threats by taking such proceedings, («) As to particulars, where the ac- Rollins v. Hinks, L. R., 13 Eq. Ca. 355. tion is for stating that chattels sold by (p) Rex v. Beare, i Ld. Raym. 417. the plaintiff were infringements of the Lamb's case, g Co. 5q b. Rex v. Bur- defendant's patent, see Wren v. Weild, dett, 3 B. & Aid. 717 ; 4 B. & Aid. 95. L. R., 4 Q. B. 213. And see as to an in- (p) Tarpley v. Blabey, 2 B. N. C. junction against a patentee from pub- 437. lishing statements of his intention to in- {q) Brookes v. Titchborne, 5 Exch. stitute legal proceedings, in order to de- 929. ' The justification must be full and complete, and cover the entire charge embraced in the words spoken. There can be no half-way justification ; unless it is full to a certain intent, it completely fails. Stilwell v. Barter, 19 Wend. (N. Y.) 488 ; An- drews V. Van Denser, 11 Johns. (N. Y.) 38 ; Self v. Gardner, 15 Mo. 480 ; Whittaker V. Carter, 4 Ired. (N. C.) 461 ; Talmage v. Baker, 22 Wis. 624 ; Ridley v. Perry, 4 Shep. (Me.) 21 ; Pallett v. Sargent, 36 N. H. 496 ; Holton v. Muzzey, 30 Vt. 365 ; Fidler v. Delevan, 20 Wend. (N. Y.) 57; Wachter v. Quenzer, 29 N. Y. 547! Lewis V. Black, 27 Miss. 425: Gregory v. Atkins, 42 Vt. 237 ; Fenn v. Ruscal, 4 N Y. 165 ; Skinner v. Grant, 12 Vt. 466. Sec. III.] ACTIONS FOR LIBEL AND SLANDER. 375 lished 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 ^5 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 takes a memorandum of particular facts and circumstances at the time they occur, and has not the paper with him, he may nevertheless give oral evidence of the facts independently of the writing ; {s) but the non-pro- duction of the writing is of course matter for comment and observation. Where a defendant, who had a copy of a libellous carica- ture in his house, showed it to another on being requested so to do, Lord Ellenborough ruled that this was not sufficient evidence of publication 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 pos- session of the letter, and that if he did, there would be a publication of its libellous contents, {x) The sending of a letter to a wife containing libellous charges against her hus- band, is a sufficient publication of the libel ; for, to injure a man's character with his wife, or to assail his honor by communications made to her, is to do him a grievous wrong. (^) (r) Sheridan's case, 31 How. St. Tr. Peacock v. Reynal, 2 Brownl. 151. 673. (x) Delacroix v. Thevenot, 2 Stark. {s) Thistlewood's case, 33 ibid. 758. 63. {t) Smith V. Wood, 3 Camp. 323. {y) Wenman v. Ash, 13 C. B. 842 ; 2a » Phillips V. Jansen, i Esp. 625. Law J., C P. 190. 376 THE LAW OF TORTS. [Ch. XVII. If a letter is sent by post, it is prima facie evidence that the person to whom it was addressed received it in due course, {z) 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 author- ship 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 defend- ant. («) 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 something may be added which he did not state, {b) 1 148. Publication in newspapers. — Every sale of a news- paper 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 plain- tiff'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 suflficient publication to sustain an action for damages ; for a defendant who, on the application of a stranger, delivers to him the writing which libels a third person, publishes the libellous matter to such stranger, (z) Warren v. Warren, i Cr. M. & R. (a) Harding v. Greening, i Moore, 850. 479. (*) Reg. V. Cooper, 8 Q. B. 536- • Sec. III.] ACTIONS FOR LIBEL AND SLANDER. 377 though he may have been sent for the work by the plaintiff himself, (c) Jf a man wraps up a newspaper, and sends it into another county by a boy, the man who sends the paper is the pub- lisher of it, and not the boy, who is ignorant of the contents of the paper, and is an innocent agent in the transaction, {d) 1149. Proprietorship of newspapers containing libels. — The provisions of the 32 & 33 Vict. c. 24, as to the printing the name of the printer on every paper or book intended for publication, have been mentioned. 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 compelled to make the discovery required. It has accordingly been held that a bill against the publisher of a newspaper to discover the name of the proprietor, is not demurrable ; (/) such dis- covery, however, is not to be made use of against th.e de- fendant in any other proceeding than .that for which the dis- covery is made. 1 150. Proof of the utterance of the words charged in actions for verbal slander. — The plaintiff need not prove 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 slander; (^) but if the words proved in evidence convey substantially the same imputa- tation, and the only difference is that the same thing is ex- pressed in a different form of words, or is proved to have been done in a different way from that charged in the de- claration, the variance may be amended at the trial, {h) If words alleged to have been spoken affirmatively were only (c) Brunswick (Duke of ) v. Harmar, I {e) The 6 & 7 Will. 4, c. 76, is re- Q. B. 189. pealed by the 33 & 34 Vict. c. 99. (d) Best. J., Rex v. Burdett, 4 B. & (/) Dixon v. Enoch, L. R., 13 Eq. Aid. 126. Proof of the delivery, by Ca. 394. Whether it would lie against order of the defendant, of a copy of a a mere stranger who happened to know newspaper to the officer at the Stamp the name of the proprietor quare, S. C. Office, was held to be proof of publica- (^) Maitland v. Goldney, 2 East, 437. tion in Rex v, Amphlit, 4 B. & C. 35. Orpwood v. Barkes, 4 Bing. 263. (/4) Post, ch. 21, s. I. Amendment. 57S THE LAW OF TORTS. [Ch. XVII, put interrogatively, or if they convey quite a different impu- tation from that charged in the declaration, the defect can not be amended, {i) ' 1151. Proof of the singing of libellous songs. — Where a libel- lous song was sun^ 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. {Ji) 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 all become originals, and the manuscript is discharged. ( /) 1 152. Application of the libel to the plaintiff. — If the libel- lous words point to no person in particular, it becomes a question of evidence whether they do or do not apply to the plaintiff, {ni) 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 all 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. () Daines v. Hartley, 3 Exch. 205. & N. 381 ; 27 Law J., Exch. 415. id) Cooke V. Hughes, Ry. & M. 115. 382 THE LAW OF TORTS. [Ch. XVII. that they did not convey the imputation scught to be fastened upon them. ' 1^55- Proof of subsequent libels to explain and point the libel charged in the declaration may be given, but if the evi- dence is ofiered for the mere purpose of swelling the dam tiges, it will be rejected. "The distinction," observes Lord Adinger, "is, you may give evidence of subsequent woids to explain the words in the declaration : but when there is nothing equivQcal in the words charged, you can not give evidence of subsequent words of the same import, for which subsequent words another action may be brought and dam- ages 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 "dam- ages in this." (e) I15&. Proof of successive libels 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 injuiy done to the plaintiff, evidence tending to prove it can not 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 purpose of obtaining damages for such subsequent injury, it will be properly rejected.- (/) Defam- atory statements, therefore, made by the defendant subse- quently to the publication of the libel, are admissible in evi- dence merely to show malice ; but if any considerable dis- tance 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 may refer to something that has taken place between the plaintiff and the defendant subse- quently to the libel, and may not, therefore, amount to any proof of malice at4;he time of the publication of the libel, (g) (f) Pearce v. Ormsby, I M. & Rob. kins, I M. & G. 808. Darby v. Ouseley, 456. I H. & N. 13. (/) Pearson v. Le Maitre, 5 M. & Gr. {g) Hemmings v. Gasson, Ell. Bl. & 720 ; 6 Sc. N. R. 607. Barwell v. Ad- Ell. 346 ; 27 Law J., Q. B. 252. ' Com. V. Snelling, 15 Pick. (IVTass.) 321; Fowle v. Robbins, 12 Mass.493 ; Carter V. Andrews, 16 Pick. (Mass.) i : Mix v. Woodward, 12 Conn. 262 ; Trafue v. Mays, 3 Dana (Ky.l 138 ; Phillips v. Barker, 7 Wend. (N. Y.) 439 ; Kennedy v. Gifford. 19 Wend, (N. Y.) 296. Sec. III.] ACTIONS FOR LIBEL AND SLANDER. 383 And when such statements are given in evidence, the defen- dant is entitled to get rid of the effect of them by proving the truth of the words. (/«) ' 1 157. Evidence of malice. — To sustain an action for libel or i slander, the plaintiff must show that it was malicious ; but every unauthorized 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 actinn, must prove actual malice, or, as it is usually expressed, malice in fact. (?) Whenever one man is proved to have used words imputing the com- mission of felony, or of any other indictable offense 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, making 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 Avill not abandon, may be taken into consideration by a jury, as prov- ing 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 [k) ' I158. Proof of injury to the plaintiff. — If the tendency of the publication is injurious to the plaintiff, the law will pre- sume 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 tell the jury it is a libel and actionable. (/) Every (K) Warne v. Chadwell, 2 Stark. 457. {k) Simpson v. Robinson, 12 Q. B {«) Cressvvell, J., Coxhead v. Richards, 513. % C. B. 605. (/) Haire v. Wilson, 9 B. & C. 645. ' Markham v. Russell, 12 Allen, (Mass.) 573 ; Cavanaugh v. Austen, 42 Vt 579 Elliott V. Bayles, 31 Penn. St. 165 ; Deffries v. Davies, 7 C. & P. 112 ; Howard v Sexton, 4 N. Y. 157 ; Steams v. Cox, 17 Ohio, 590 ; Johnson v. Brown, 57 Barb. (N Y.) 118 ; Lincoln v. Chrisman, 10 Leigh (Va.) 338 ; Intnan v. Foster, 8 Wend. (N Y. ) 602 ; Randall v. Halsenbake, 3 Hill (S. C.) 175 ; Shrimper v. Hielman, 2/ Iowa, 505 : Miller v. Kerr, 2 McCord (S. C.) 285 ; Robbins v. Fletcher, loi Mass 115. ' See note l, page , ante. 384 THE LAW OF TORTS. [Ch. XVIL person who publishes in writing matter injurious to the char- acter of ai other, is considered in point of law to have in- tended the consequences resulting from his act. {m) 1 159. Evidence of special damage. — When proof of special damage is essential to the maintenance of the action, it must be proved as laid, and any substantial variance between the :illegation and the proof will be ground of non-suit. 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 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 ot being hissed, whereby the plaintiff lost the benefit of her ser- vices, it was held that the injury complained of was too re- mote, 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. («) If there are two distinct causes of special damage, one proceeding from the act of the defend- ant, and another from the act of a third party, and the special damage may have resulted from either, it will fail to support im action. {0) If the declaration alleges as special damage, that several named persons had ceased to have dealings with \ he plaintiff in the way of his trade, the persons themselves must be called to prove the fact, {p)'- 1160. Proof of the trade, or profession, or official character of the plaintiff. — Where the libel imputes to the plaintiff mis- conduct in his practice of a physician or surgeon, or as an attorney, and does not call in question or deny his qualifica- tion to practice, it will not be necessary for him to do more than prove that he was acting in the particular professional Uii) Fisher v. Clement, 10 B. & C. io) Vicars v. Wilcocks, 8 East. 2. ^75. \p) Tilk V. Parsons, 2 C. & P. 2oa., (n) Ashley v. Harrison, I Esp, 48. Tunnicliffe v. Moss, 3 C. & K. 83. • Maloney v. Dews, 15 How. Pr. (N. Y.) 265 ; Squier v. Gould, 14 Wend. (N. Y.) 159 ; Tobias v. Harland, 4 Wend. (N. Y.) 537 ; Halleck v. Miller. 2 Barb. (N. Y.) 30 ; Cook V. Cook, 100 Mass. 194, Sec. III.] ACTIONS FOR- LIBEL AND SLANDER. 385 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 requi- site, {s) If the document is not admissible in evidence on its production under the Documentary Evidence Act, {t) the sig- natures must be proved in the ordinary way. 1 161. Proof that the ivords were spoken concerning a trades- man or professional man in the way of his trade or profession. — [n order to recover damages for slanderous words spoken of a tradesman or professional man in his trade or profession, it must be shown how the words were connected with his pro- fession. To impute immorality to a clerk of a gas company, to say that he " consorts with 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 con- duct as a clerk. He may be a very good clerk, well fitted for his duties, although he is scandalously immoral. («) 1 162. Evidence on the part of the defendant — Traverse of material allegations. — If the libel contains a charge upon a man in the way of his trade or business, the allegation con- cerning 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, the manufac- turer of a particular article, which he supplied to his custom- ers in the wa}^ of his trade, and the defendant traverses the allegation, and the plaintiff establishes a prima facie case, the defendant is entitled to prove that the plaintiff did not manu- facture 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 (?) Berryman v. Wise 4 T. R. 366. (j) See 33 & 34 Vict. c. 97, ss. 16, 17. Smith V. Taylor, i B. & P. N. R. 204. (0 8 & 9 Vict. c. 113. /"w/.rh, 21. Rutherford V. Evans, 6 Bing. 451. (»)Lumby v. Allday i Cr. & Jery. (r) As to apothecaries, see 14 & 15. 301. ct. c. 99, s. 8. II.— 25 386 THE LAW OF TORTS. [Ch. XVII. by the libel, and there is no plea of justification on the record, {x) 1 163. Proof 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. (7) 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. {£) 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 fel- ony to the plaintiff, it is competent to him to go into proof of kis justification, although the plaintiff has been tried and ac- quitted of the charge, the trial and acquittal being res inter alios acto. (3) 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 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 offense in a criminal court 5 so that, if there is a doubt of his guilt, the jury are bound to give him the benefit of the doubt, [d') * (a:) Manning V.Clement, 7 Bing 368. (a) Littledale, J., in McPhersoff v. (y) An inaccurate statement is not, Daniels, lo B. & C. 272. therefore, necessarily libellous. See {b) England v. Bourke, 3 Esp. 80. Alexander v. North-East. Rail. Co., 34 Cook v. Field, Id. 134, Law J., Q. B. 152. ( State V. Burnham, 9 N. H. 34 ; Com. v. Guild, Thacher's Cr. Cas. (Mass.) J»> State V. Perrin, 3 Brev. (S. C.) 152 ; Townshend on Slander, 63. Sec. III.] ACTIONS FOR LIBEL AND SLANDER. 393 A person may be convicted, also, of a misdemeanor for publishing a libel upon a class of persons, such as the clergy of a particular diocese, or the residents of a particular local- ity, if the direct tendency of the publication is to stir up riot and disorder, and incite to a breach of the peace. ( in- directly, communicated, and for whose use he knew it was purchased." The rule to be deduced from this case, then, is much broader than that stated by the author, and seems to be this : A person who, by false representations and fraud in the sale of an article to be used for a particular purpose, knowing that it is to be used by other persons than the plaintiff, and the persons are designated, so that the person making the representations can be said to have such use by such persons in contemplation, he is liable for any damage resulting to such persons from the use of such article inits ordinary way, and for ordinary purposes, if such article is not as represented by him, in consequence of which the injury resulted. The principle established in this case was c:irrled somewhat further in an American case, Thomas v. Winchester (6 N. Y. 397), and we are not aware that the doctrine of this case has ever been con- troverted. In that case it was held that where a person negligently sells s. poisonous drug, dangerous to life, for a harmless one, he is liable to any person who sustains injury therefrom, upon the ground, not that the injury vested in contemplation, but that it resulted from a violation of a duty to the public, which requires the exercise of the highest c^ire on the part of persons vending articles that, in their ordinary use, endanger human life. In that case the doctrine was broadly asserted that a dealer in drugs, who carelessly labels a deadly poison as being a harmless drug of a different kind and name from that which in fact is, is liable to all vvho, without fault on their own part, are injured by using it, in consequence of the false label. In duces all the ill effects of falsehood." See also Harding v. Randall, 15 Me. 332 ; Craig V. Ward, 36 Barb. (N. Y.) 377 ; Hubbard v. Briggs, 31 N. Y. 518 ; Foster v. Kennedy, 38 Ala. 359 ; Smith v. Richards, 13 Pet. (U. S.) 26 ; Terhune v. Dener, 36 Ga. 648 ; but see Marshall v. Gray, 39 How. Pr. (N. Y.) 172 ; Wheeler v. Randall, 48 111. 182. But no action lies when the vendee ^«i;r(« the representations are false. In such a case he can not be said to rely upon them, or to have been de- frauded or injured thereby. Ely v. Stewart, 2 Md. 40S ; Anderson v. Burnett, 6 Miss. 165 ; Clopton v. Clozart, 21 Miss. 363. False representations in reference to minor matters that do not operate as an inducement to the purchase or the making of the contract — mere puffing, or expres- sions of an opinion rather than of a substantial fact in reference to a material matter, are not actionable. In order to form the basis of an action, they must amount to a statement of facts rather than opinion, in reference to material matters, and must be such as the party not only did, but had a right to rely on, and they must have been made in reference to matters not equally open to the observation of both parties, and of which the party complaininij could, by reasonable prudence, have attained correct knowledge. A person can not rely upon the statements ol others too implicitly. He must, when he reasonably can, exercise reasonable diligence himself; and if he blindly trusts another, or closes his eyes when he should see, he can not predicate an action for the damage. Thus, for a man to rely upon a repre- sentation that a horse is not blind, when both eyes are out, or that it is sound and •11 right, when it has but three legs, would hardly be actionable even under an ex- II. — 26 402 THE LAW OF TORTS. [Ch. XVIII. tain 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 such a case the liability does not rest upon any contract or direct privity between the vendor and the person using ths drug, but out of a public duty, which imposts upon every person to avoid acts in their nature dangerous. The distinction between the doctrine of this case and that of Langridge v. Levy is quite marked. In the latter, the article itself, and by itself, was not dangerous. It was only its use in connection with other agencies, as gunpowder, &c., that made it so, and the sale of it was not unlawful ; therefore, however much fraud was practised by the seller, he could not be made liable for injuries resulting from it, except such as were fairly within his contemplation at the time of sale, and to such persons as he had noticed would use the article. Thus, if A sells B a horse, and falsely warrants it to be kind and steady, to be used in a livery, to let for hire, when in fact, it is a vicious and unmanageable animal, he would be liable to B for all damage sustained by him from injuries resulting from the viciousness of the horse, iut he would not be liable to a person who hired'the horse of B for injuries resulting to him from its viciousness, although he knew and was informed that it was to be let for hire. So, if a blacksmith shoes a horse defectively, in consequence of which he falls and injures a person who is riding it, having procured it from the owner for that purjjose, the blacksmith can not be held chargeable in damages for the injury, i£&r there is no privity between him and the person injured, and he owed hivi no duty in respect to the shoeing of the horse, public or private. But in all cases where the act itself is unlawful, the defendant is liable to any person sustaining injury there froimj as a natural and necessary result of the act. No privity is necessary in such a case esuept such as grows out of the unlawftl act. Myers v. Malcolm, 6 Hill (N. W.),, 272 ; Vanderburgh v. Truax, 4 Den. (N. Y.) 464 ; Underwood y. Stuy- vesant, 19 Johns. (N. Y.) 181. But in order to predicate liability, the injury must grow out of the ordinary use of the article, in the ordinary way, and for ordinary purposes, or a .use of which the vendor had notice, so that the injury can be said to be the natur.cd .oy necessary consequence of the wrong. If the article itself is not dangerous, and .only becomes so by a particular use to which it is not ordinarily devoted, or in the case of a drug or chemical, by being mixed with other substances with which it is not .ordinarily used, and of which use the vendor has no notice, no liability can arise against the vendor for any fraud practised by him or for any negligence b_y which he delivers a different article from that intended, except to the purchaser himself . The rule is that, for an injury resulting from a breach of con- press warranty, unless the horse was purchased without being seen by the purchaser. Thus, as to ail defects or fauJts apparent upon inspection, without the exercise of any particular skill, if the purchaser has the opportunity for examination, he must see for himself, and has no right to be deceived. Frenzel v. .Miller, ante ; Hager v. Grassman, 31 lad. 223 ; Smith v. Webb, 64 N. C. 541. In Beebe v. Keep, 28 Mich. 53, the court say : " In order to maintainjan action for deceit in making false rep- resentations, it is not necessary to show that the party making them knew them to be false. If a party recklessly makes a false representation, of the truth or falsehooa tf which he knows nothing, for the fraudulent purpose of inducing another, in re- liance upon it , to make a contract or do an act to his prejudice, and the other party dots rtly on it, he is liable for the fraud as much as if ht had known it to bt false! ! Sec. I.] FRAUDULENT MISREPRESENTATION. 403 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 neces- sary in all cases to show that the defendant knew the repre- sentation 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. (/ ) ' I175. Unintentional deception. — But a person who has rea- son to believe, and actually believes, a particular fact to be true, and accordingly represents what he believes, is not lia- ble to an action merely because it turns out that he was mistaken, and that his representation was unintentionally false ; (^) for, if every untrue statement which produces damage to another would found an action at law, a man might sue his neighbor for any mode of communicating erroneous information, such (for example) as having a con- spicious clock too slow, whereby the plaintiff was induced to neglect some important duty ; but if it be shown that the de- fendant was under any legal obligation to state the truth cor- rectly 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 un- fair advantage to himself, {h) ' (e) Selway v. Fogg, 5 M. & W. 86. Orinrod v. Huth, 14 M. & W. 664. Chil- (/) Taylor v. Ashton, II M. & W. ders v. Wooler, 29 Law J., Q. B., 129. 415. (/<) Barley v. Walford, 9 Q. B. 208. {g) Collins V. Evans, 5 Q. B. 826. tract merely, no action, whether ex contractu or ex delicto, can be maintained, except by those who are privy thereto. But when the injury results from the breach of public duty, any person injured may maintain an action therefor Davidson v, Nichols, et al., 11 Allen (Mass.) 517 ; Longmird v. Halliday, 6 Exch. 761 ; Thomas v. Winchester, 6 N. Y. 397 ; Lasser v. Clute, 53 N. Y. i6g ; Loop y. Litchfield, 42 N. Y. 351. ' Carroll v. Rice, Walk. (Mich.) 373. ' Foster v. Kennedy, 38 Ala. 359 ; Hubbard v. Briggs, 31 N. Y. 578 ; Hazard v. Irwin, 13 Pick. (Mass.) 95 ; Grove v. Hodges, 55 Penn. St. 504 ; Frenzel v. Miller, 37 Ind. I ; Elder v. Allison. 45 Ga. 13 ; Craig v. Ward, i Abb. (N. Y. App.) 454. » Wheeler v. Randall, 48 111. 182 ; Marshall v. Gray, 39 How. Pr. (N. Y.) 172 ; Weed v. Case, 55 Barb. (N. Y.) 534 ; Taylor v. Seaville, 54 Barb. (N. Y.) 54 ; Bunk- head v. AUoway, 6 Cold. (Tenn.) 56 ; unless he states a matter to be true when he does not know whether it is true or false, or when the representation is as to a material 404 THE LA W OF TORTS. [Ch. XVIII. 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 willful falsehood of such a nature is, in the legal sense of the word, a fraud. ( ? ) ' Whether the de- fendant has any interest in the assertion he makes, or in the matter respecting which it is made, is perfectly imma- terial. {U) " 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 pur- pose 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. (/) " The general rule appears to be, that if any man makes a fraudulent represen- tation for another to act upon, either directly or indirectly, {i) Ld. Tenterden, C. J., Polhill v. 36. Walter, 3 B. & Ad. 123. Milne v. Mar- (Ji) Pasley v. Freeman, 3 T. R. 60, 62. wood, 15 C. B., 778 ; 24 Law J., C. P. (t) Langridge v. Levy, afte. matter, and amounts to a false warranty. Terhune v. Dener, 36 Ga. 648 ; or there are facts or circumstances that should put him on his guard as to the truth of the statement; Craig v. Wood, 36 Barb. (N. Y.) 377. ' Foster v. Kennedy, 38 Ala. 389 ; Bennett v. Judson, 21 N. Y. 238 ; Wakeman V. Dailey, 51 N. Y. 27 ; Hubbell v. Meigs, 50 Id. 480 ; Reid v. Flippen, 47 Ga. 373 * If A, with a fraudulent purpose, to enable B to defraud C in the sale of prop- erty, falsely represents that the property is different from what it is, or is of greater value than is asked for it, or, as in the case of a horse, is sound when in fact it is not sound, and he knows it, thus inducing or encouraging C to buy it, he is answerable for the fraud as much as though he sold the property himself as his own. Bean v. Herrick, 12 Me. 226 ; Carpenter v. Lee, 5 Yerg. (Tenn.) 265 ; Irwin v. Sherrell, 7 Tayl. (N. C.) I. So, where, by false representations as to pecuniary standing, he in- duces credit to be given to one who is, in fact, insolvent ; Newsom v. Jackson, 26 Ga. 241 ; Stiles v. White, 11 Met. (Mass.) 356 ; Medbury v. Watson, 6 Met. (Mass.) 246 ; and in all cases where one, either by words or actions, by false representations with intent to deceive another, and by which he is in fact deceived and damaged, an action lies, even though the person guilty thereof had no interest in making them, and was not to be personally benefited thereby ; Nowlan v. Cain, 3 Allen (Mass.), 361 ; Hubbard v. Briggs, 31 N. Y. 518 ; Ives v. Carteor, 24 Conn. 532 ; Fames v. Morgan, 37 111. 360 ; McAleer v. Murray, 58 Penn. St. 126 ; Weed v. Case, 55 Barh, (N. Y.) 534. Sec. I.] FRAUDULENT MISREPRESENTATION. 405 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 damagfts. 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 per- sons who read the public announcements, and become pur- chasers 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, (k) ' (ot) Scott V. Dixon, 29 Law J., Exch. 623. Barry v. Crosky, ante. 62, n. Bedford v. Bagshaw, Id. 65. Ld. (») Collins v. Cave, 4 H. & N 234 ; Campbell, Wilde v. Gibson, I H. L. C. 28 Law J., Exch. 204. ' In Nelson v. Taylor, 46 How. Pr. (N. Y.) 355, the plaintiff sued the defendants as directors of " The New York and Bremen Steamship Co.," for fraudulently combining to organize said company, for the purpose of deceiving such of the public as might be induced to become stockholders therein, and with inducing the plaintiff, by false and fraudulent representations, to purchase a number of shares therein. ItTvas held that,- in order to entitle the plaintiff to recover, he must show that the representations claimed to be fraudulent, were fwt only false in fact, but that they ■were made with a fraudulent intent to deceive. And that, while fraud would not be presumed, yet it would be inferred from evidence of their falsity, and the fact that the defendants knew them to be false, or that they professed knowledge of their truth, when in fact they were conscious that they had none, but that in either case 2. fraudulent intent is essential. ' There can be no actionable fraud unless attended with actual damage. Both fraud and damage must concur. Upton v. Vail, 6 Johns. (N. Y.) 181 ; Bennett v. Terrill, 20 Ga. 83 ; Zabriskie v. Smith, 13 N. Y. 322 ; Nye v. Merriam, 36 Vt.438 ; Hanson v. Edgerley, 29 N. H. 343 ; Nowlan v. Cain, 3 Allen (Mass.), 261. The rule is, that to entitle a party to maintain an action for fraud by false representa- tions, there must be proof, not only that the assertions were false, but that they related to a material matter, and were made with an intent to defraud, and have been productive of actual damage. Taylor v. Saville, 54 Barb. (N. Y.) 34 ; Taylor V. Guest, 58 N. Y. 262. In Marsh v. Falker, 40 N. Y. 562, the rule as to the necessity of proving a fraudulent intent in an action for deceit, arising from false representations, was thus slated ; " An intent to deceive is essential to sustain an action for false representa- tions ; and the rule, that one who makes representations which are untrue, upon a subject as to which he has no knowledge, may be held liable for deceit, should be limited to cases where the circumstances indicate that he intended the injured party to suppose that he spoke f 10m actual knowledge." In determining whether the representations are mere expressions of an opinion or statements oi facts as such, reference must always be had to the subject-matter to which they relate, the circumstances under which they, were made, and the difference 4o6 , THE LAW OF TORTS. [Ch. XVIII. 1176. False representations binder pretense of a claim of right.—False claim of lien. — An action is maintainable for a false and malicious representation, though made under the pretense of a claim of right, if it was made without reason- able and probable cause, and must have been known to be false, by the person making it, and special damage has re- sulted to the plaintiff from the wrongful act. Thus, where a defendant, knowing thiat 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 damages re- sulted therefrom to the plaintiff, it was held that the defend- ant was bound to make compensation to the plaintiff for the wrong done to him. [p) ' 1 1 77. Representations by a person of his knowledge of a par- ticular fact, when he knows that he has no knowledge at all about it. — If a man undertakes 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 represen- tation 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 {0) Green v. Button, 2 C M. & R. 716. in the means of knowledge in reference to the matter between the plaintiff and defendant. If the plaintiff ought, by reasonable diligence, to have known the truth or falsity of the statements, or had equal facilities for knowing as the defendant, he can not by blindly believing where he ought not to have believed, or trusting where he ought not to have trusted, or shutting his eyes where he ought to have kept them open, charge the defendant with the consequences of his folly. Every man is bound to exercise his judgment when he can do so, but when the means of forming a correct conclusion are peculiarly possessed by one, then, if that person misrepre- sents and deceives another to his damage, he is liable, otherwise not. Marsh v. Falker, ante ; Frenzel v. Miller, 37 Ind. I ; Ellis v. Andrews, 56 N. Y. 83. ' PauU V. Halferty, 63 Penn. St. 46 ; Kendall .. Sione, 5 N. Y. 14; Stark v. Chetwood, 5 Kan. 141 ; McDaniel v. Baca, 2 Cal. 326 ; Hill v. Ward, 13 Ala. 310 ; Swan V. Tappan, 5 Cush. (Mass.) 104. See upon this subject a very full and satis- factory note to the case of Malachy v. Soper, in Bigelow's Leading Cases on The Law of Torts, where the editor has brought together the cases, English and Ameri- can, bearing upon the question, and eliminated the doctrines in a very able and satisfactory manner. Sec. I.] FRAUDULENT MISREPRESENTATION. 407 pretends to positive knowledge of the existence of a parti- cular fact, when in truth he knows nothing at all about it, does in reality make a willful representation, which he knows to be false, and if the representation is made in order that another may rely 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 willful deception and fraud. (/) Lord Mansfield lays it down generally that, in a represen- tation 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 affirm 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, accord- ing 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 with a view to secure some benefit to himself, or to deceive a third person, he 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 repre- sentation may have no knowledge of its falsehood, the repre- sentation may, nevertheless, have been fraudulently made." {s) ' (p) Smout V. Ilbery, 10 M. & W. lo. (q) Pawson v. Watson, Cowp. 788. Cresswell, J., and Wilde, C. J., Jarrett Pulsford v. Richards, 17 IBeav. 94. V. Kennedy, 6 C. B. 322. Erie, J., (r) Haycraft v. Creasy, 2 East. 103. Jenkins v. Hutchinson, 13 Q. B. 748. (s) Evans v. Edmond's, 13 C. B. 786. Randell v. Trimen, 18 C. B. 786. Milne v. Marwood, 24 Law J., C. P. 37. ' Where a person makes a statement honestly believing it to be true, he will not, generally, be held liable for fraud, even though the statement subse juently proves to be untrue. Weed v. Case, 55 Barb. (N. Y.) 534. But where he asserts that to be true of the truth or falsity of which he has no knowledge, with a view of inducing another to rely and act upon it, he is treated as warranting the truth of the state- ment, and if another has acted upon it to his damage he is held chargeable for all the consequences. The fraud consists in asserting that as a fact, in reference to a material matter, when he knew that he had no knowledge as to its truth or falsity, and when he could not have had because the fact did not exist. The assertion, however, must have been made with a. fraudulent intent. Marsh v. Falker, 40 N. Y. 562. The rule in reference to such matters was well stated in Cabot v. Christie, 42 Vt. 121, substantially thus : A person may render himself liable to an action of damages for deceit, by stating his mere belief as knowledge. Thus, if the vendor of 408 THE LAW OF TORTS. [Ch. XVIII. 1 178. Statements and representations which must be authen- ticated by a signed writing. — False representations concerning the conduct, credit, ability, trade, or dealings of third persons. — By 9 Geo. 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 representation 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 representation, [f) Any representation that a person may be trusted, constitutes a representation as to his credit and ability, {u) If the representation is in writ- ing, and signed by the defendant pursuant to the statute, and the defendant at the time he makes the representation 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. (/) (<) As to representations of the ability 461. of parties, see Lyde v. Barnard, i M.& (jr) Pasley v. Freeman, 3 T. R. S'- W. lot, and Harmar v. Alexander, 2 B. Foster v. Charles, 6 Bing. 400 ; 7 Bing & P. N. R, 241, decided before the pass- 107. ing of the statute. {y) Tatton v. Wade, 18 C. B. 371. (?() Swann v. Phillips, 8 Ad. & E. Wade v. Tatton, 25 I,aw J., C. P. 242. land has only an opinion or belief as to the quantity contained in the tract he offers to sell, to pass off suck belief as knowledge is an imposition, and is actionable if the quantity is overstated. And this is so if he makes an absolute statement which is understood and intended as a statement upon knowledge, although, in terms, he does not profess to have knowledge. Generally, a declaration is not deemed fraud- ulent if the declarant believes it to be true. But a person who is aware that he has only an opinion, who represents that opinion as knowledge, can not believe that repre- sentation as true, for he knows that his representation, when stated as positive knowl- edge, although it rests in opinion merely, is false and fraudulent. See also Sharp v. New York, 40 Barb. (N. Y.) 56 ; Smith v. Babcock, 2 W. & M. (U. S.) 246 ; Hazard V. Irwin, 18 Pick. (Mass.) 95 ; Bennett v. Judson, 21 N. Y. 238 ; Harding v. Ran- dall, 15 Me. 332 ; Craig v. Ward, 36 Barb. (N. Y.) 377 ; Foster v. Kennedy, .1 Ala. 359 ; Terhune v, Dener, 36 Ga. 648. Sec. I.] FRA UDULENT MISREPRESENTA TION. 409 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 ;^300 to begin with, and referred them to his father, the defendant, for a corroboration of his statement, and the plaintiffs wrote to the father inquir- ing whether the son had, as he asserted, ;^300 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 mis- representation, for which the defendant was liable in damages to the plaintiffs in an action for deceit, (z) But if the person makes the representation in good faith, honestly believing it to be true, and has reasonable ground for his 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 therefrom. («) 1 1 79. Representations concerning the character, credit, trade, or dealings of co-partnerships and joint-stock companies — Au- thentication thereof by 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 hiniself. {by The word "person " is of extensive signification, and is applicable to a corporation sole or aggregate, as well as to a private individ- ual ; ic) so that represeptations by one member of a company as to the circumstances, credit, and condition of the company, 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 ac- tion for deceit, (d') 1 180. Misrepresentation by directors and officers of public companies — Publication of deceitful prospectuses and reports. — («) Corbett V. Brown, 8 Bing. 33. () 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 (h) Clarke v. Dixon, 28 Law J., C. P. (0) See Denton v. Macneil, L. R. 2 225 ; 6 C. B., N. S. 453. Hill v. Lane, Eq. Ca. 352. L. R. II Eq. Ca. 215. Peek v. Gurney, (/) Venezuela Rail. Co. t. Kisch, L. L. R. 13 Eq. Ca. 7g. Or the shave- R., 2 H. of L. Ca. gg, in which case it holders may plead fraud in an action for was held that the statement of the cap- calls. Bwlch-y-plwm Mining Co. v. i^tal of the company as ,^500,000, omit- Baynes, L. R ., 2 Exch. 324. ting the fact that pf 50,000 would have to [i) Weston Bank of Scotland v. Addie, be paid for the concession, was fraud- L. R., I Sc. & Div. App. 158, 166, 167. ulent ; and that the terms "available See Henderson v. Lacon, L. R., 5 Eq. capital of the company" meant capital, Ca. 24g. exclusive of arly borrowing powers. See, (k) Cullen v. Thompson, 6 Law T. R., also, Ross v. Estates Investment Co., L. N. S. 870. R., 3 Eq. Ca. 122. (/) 24 & 25 Vict. c. g6, s. 84 ; 31 & (q) Ross v. Estates Investment Co., 2 Vict. u. iig. s. 5 ; 33 & 34 Vict. c. 61, supra. s. ig ; 34 & 35 Vict. c. 78, s. 10. (r) Heyman v. European Central Rail (») Eastwood V. Bain, 28 Law J., Co.,'L. R., 7 Eq. Ca. 154. Exch. 74. ' Nelson v. Taylor, 46 How. Pr. (N. Y.) 355. Sec. I.] FRAUDULENT MISREPRESENTATION. .i!3 to make himself acquainted with the provisions of the arti- cles of association, {s) if they are in existence at the time of the contract, (/) or within a reasonable time, i.e., semble the "earliest practicable time, after they are in existence. («) Al- though, however, he may thus sue the directors for fraudu- lent misrepresentation, or plead fraud to an action for calls brought by the company, or within a reasonable time (,r) rescind and be relieved from the contract on the ground of fraud, {y) he will still 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. (b) It is no answer by the directors to an injunction to re- strain an action for calls, that they believed the statements, and were themselves 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, bona 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 se- curities, 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 (s) Oakes v. Turquand, L. R., 2 H. of 4 F.q. Ca. 588. L. Ca. 326. Ex parte Briggs, L. R. I (z) Oakes v. Turquand, ut sup. Kent Eq. Ca. 483. Re Madrid Bank, 2 Ibid., v. Freehold Land Co., L. R., 3 Ch. App. 218. 493. (/) Webster's Case, L. R., 2 Eq. Ca. (a) Waterhouse v. Jamieson, L. R., 2 741. Stewart's Case, L. R., I Ch. App. Scotch App. 29. 574. Hallows V. Fernie, L. R., 3 Eq. ib) Wright's Case, L. R. 7 Ch. App. Ca. 520 ; 3 Ch. App. 467. 55. (a) Re Cachar Company, L. R., 2 Ch. (f) Smith v. Reese River Mining Co., App. 412. Re Madrid Bank, lb. 536. L. R., 2 Eq. Ca. 264 ; 2 Ch. App, 604 ; Peel's Case, lb. 674. 4 Eng. and Ir. App. 65. {x) See Whitehouse and Tait's Cases, {d) Kennedy v. Panama Steam Co., L. R., 3 Eq. Ca. 790, 795. Downes v. L. R., 2 Q. B. 580. Price, L. R., 3 Engl, and Ir; App. 343 ; {/) Rashdall v. Ford, L. R., 2 Eq. Ca. Ashley's Case, L. R. 9 Eq. Ca. 263. 750. See Hallows v. Fernie, supra. M'Neil's Case, 10 Ibid. 503. When time is a bar ; Smallcombe's Case, (>) Kent V. Freehold Land Co., L. R., L. R., 3 Eq. Ca /6(). 414 THE LAW OF TORTS. [Ch. XVIH. they are adopted and ratified by the shareholders at a gene- ral meeting of the company. (/) But the representations ol the promoter may be, in certain cases. (^) 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 promo- ters, 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 specifjdng 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. I181. Fraudule?tt breach of warranty. — Whenever the rep- resentation or statement amounts to a warranty of the fact stated, and is untrue, it is fraudulent, in comtemplation 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, " lull another into security as to the goodness of a commodity he offers for sale, by giv- ing 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 war- ranty 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, {h) If, there- fore, a watchmaker 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 war- rants his copper to be fit for sheathing vessels, and a pur- chaser buys upon the faith of the warranty, and then finds that the watch will 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 (/) Royal Brit. Bank, In re, 3 L«w {g) Ross v. Estates Investment Co , T. R., N. S. 843 ; 9 W. R. 328. See L. R., 3 Eq.Ca. 122. S. C, 3 Ch.App. Ferguson v. Wilson, L. R. 2 Ch. App. 682. 77. (/4) Williamson v. Allison, 2 East, 450. &EC. I.] FRAUDULENT MISREPRESENTATION. 415 the fact at the time he gave the warranty. ( ^ ) A warranty will 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, {k) To warrant a thing that may be perceived at sight is not good. (/) ' If, therefore, at the (j) Wallace v. Jarman, 2 Stark. 162. 173. Anon., Lofft, 146. Gresham v. Postan, \k) Ekins v. Tresham, I Lev, 102. 2 C. & P. 540. Williamson v. Alison, 2 Dyer v. Hargrave, 10 Yes. 507. East, 446. Jones v. Bright, 3 M. & P. (/) Baily v. Merrell, 3 Bulstr. 93. ' Warranties on the sale of property are either express or implied. An express warranty is a positive and unequivocal affirmation by a vendor of goods or chattels as to the state or quality of the thing sold, on the faith of which the purchase is made, and the consideration paid, or agreed to be paid. An implied warranty is a warranty inferred from' the language or conduct of the vendor at the time of sale, or both, or from the character of the article sold, and knowledge of the purpose for which it is purchased, and to which it is to be devoted. Thus, where the manu- facturer of an article sells it for a particular purpose, knowing the purpose to which it is to be devoted by the purchaser, the law implies a warranty on the part of the vendor that the article is fit for that purpose. Lespard v. Van Kirk, 27 Wis. 152 ; Boothby v. Scales, 27 Id. 636 ; Pacific, &c., Works v. Newhall 34 Conn. 67 ; Miller V. Gaither, 3 Bush. (Ky.) 152 ; Field v. Kinnear, 4 Kan. 476. So, where goods are sold by sample, there is an implied warranty that the goods shall correspond with the sample ; Whittaker v. Hurske, 29 Tex. 355 ; unless the buyers have an opportunity to inspect the goods themselves ; Leonard v. Fowler, 44 N.Y. 2S9 ; Barnard v. Kellogg, 10 Wall. (U. S.) 383 ; so when a person sells a negotiable security as a note, bond, or coupon, in the absence of statements to the contrary, there is an implied warranty that it is genuine, and that the amount purporting to be due thereon is actually due ; McCay v. Barber, 37 Ga. 423 ; Flynn v. Allen, 57 Penn. St. 482 ; so where pork or other articles of meat are sold to be used as food, there is an implied warranty that it is sound and fit for the purposes of food ; Hoover v. Peters, 18 Mich. 51 ; so where a person sells property which at the time of sale is in his possession, the law implies a warranty of title; Chancellor v. Wiggins, 4 B. Mon. (Ky.) 201 ; Ricks v. Dillahunty, 8 Port. (Ala.) 133 ; but there b no such implied warranty when he is not in possession ; Scranton v. Clark, 39 N. Y. 220 ; so, that merchandise sold without being seen by the buyer, is of a merchantable quality. Howard v. Hoey, 23 Wend. (N. Y.) 350. In order to constitute a warranty no particular form ofwords are necessary. It is not essential that the vendor should use the word warrant ; it is enough if he makes positive representations in reference to the quality, quantity, or character of the article sold, as /ac^j rather than opinion, upon which the vendor has a righi to and does rely in the purchase of the article, and which is a part of the inducement to the purchase. Thus, where A, on the sale of a horse to B, said, " he is fourteen years old," it was held to amount to a warranty that the horse was no older ; McGregor v Penn, 9 Yerg. (Tenn.) 74; Merrill ». Wallace, g N. H. iii ; Burge v. Stroberg, 42 Ga. 89 , so, where on the sale of cows, the vendor said, " they are all coming in in good season in the spring," it was held that this amounted to a warranty that they 4i6 THE LAW OF TORTS. [Ch. XVIII. time of the sale of a horse the animal is warranted sound, that is understood to mean, saving those manifest and visible de- fects which are obvious to all mankind, and known to the purchaser at the time he bought the animal, {ni) If, however, the manifest defect is not necessarily of a permanent nature ; if a horse has a cough and running at the nose, and the ven- dor 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, will be responsible in damages if the horse con- tinues unsound and permanently diseased. («) And a pur- chaser who relies upon a warranty is not bound to make any particular examination ' of a horse before he buys, to ascer- tain whether a defect exists. If, relying upon the warranty, he neglects to make any particular examination of the animal, {ni) Margetson v. Wright, 5 M. & P. («) Liddard v. Kain, g Moore, 356. 606 ; 7 Biiig. 603. were all with calf; Richardson v. Mason, 53 Barb. (N. Y.) 601; but mere com- mendation of property, or an expression of a mere opinion, and not amounting to the positive assertion of a material fact, as, where in answer to the purchaser's in- quiry as to diseased sheep, the vendor says, " they appear to be healthy, and aie doing well," it was held that this could not be construed as more than a mere ex- pression of an opinion, and did not amount to a warranty ; Tewksbury v. Bennett, 31 Iowa, 83. See also, McGrew v. Forsylhe, 31 Id. 179; Horton v. Green, 66 N. C. 596 ; Vandewalker v. Osmer, 65 Barb. (N. Y.) 556 ; Hawkins v. Pemberton, 51 N.Y. 198 ; Kinley v. Fitrpatrick, 59 ; McGregor v. Penn, 9 Yeig. (Tenn.) 74 ; Morrill v. Wallace, q N. H, iii ; Ricks v. Dillahunty, 8 Port. (Ala.) 303 ; Bunn v. Stevens, 2 Ired. (N. C.) 411 ; but, in determining whether or not these representations amount to a warranty, the situation of the property, and the circumstances under which they are made, are to be taken into account. Thus, where a purchaser of trees was present at their packing, it was held that the assurance of the vendor of the trees that they were all right, and were not injured, did not amount to a warranty ; that it was a mere expression of an opinion, and not of a substantive fact peculiarly with- in his knowledge. Baker v, Henderson, 24 Wis. 509 ; Ricks v. Dillahunty, 8 Port, (Ala.) 133. Whether or not a statement is a warranty or a mere statement of opinion, is for the jury in view of all the facts ; Morrill v. Wallace, g N. H. Ill ; Kinley v. Fitzpatrick, 5 Miss. 59 ; Hause v. Fort, 4 Blackf. (Ind.) 293 ; but in all cases a warranty, in order to be available, must be made before the sale ; if made afler, it is not good unless predicated upon a new consideration ; Lowell v. Gate- wood, 2 Scam. (111.) 22. So a warranty against obvious, visible defects, not requir- ing the exercise of any special knowledge or skill to detect, is not operative ; Lang v. Hicks, 2 Humph. (Tenn.) 305 ; but although obvious, if any special know- ledge or skin is necessary to detect the defects, the warranty is good ; Thompson v. 'iatts, 8 Miss. 710 ; Pinney v. Andrus, 41 Vt. 631. Sec. I.] FRAUDULENT MISREPRESENTATION. 417 and fails consequently to discover a defect, which might have been ascertained by examination, he is, nevertheless, entitled to maintain an action for deceit. {0) The purchaser of a warranted but worthless article is en- titled to maintain an action for deceit, although he has stip- ulated that if he dislikes the article it shall be exchanged for another of the same value. (/) 1 182. Warranties made pending a negotiation for the sale of property. — " 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 will be well, because the warranty is the ground of the treaty, and this is selling with a warranty. But it is other- wise if the warranty be after the sale ; as if a man sells goods aiid afterwards warrants them, such warranty is not good. But in the other case the warranty is part of the contract. {tor does not apply. In Medbury v. Watson, 6 Met. (Mass.) 259, which was an action against a third person for false affirmations in reference to the value of a tannery, which, by reason of such false affirmations, plaintiffs were induced to purchase, a verdict for the plain- tiffs was sustained, upon the ground that, the buildings being covered with snow, plaintiffs did not have an opportuaity to form a fair and reasonable judgment in refer- ence to their condition and value ; and this doctrine seems to confomi fully to the principles controlling all such actions. If the property, in reference to which the affirmations are made, is, at the time, in such a condition or situation that the pur- chaser can not fairly judge for himself as to it's value, he has a right to rely upon the affirmations of the vendor, and the maxim caveat emptor does not apply. Thus, necessarily, the question whether such affirmations are of matters of opinion, or of facts amounting to a warranty, must depend upon the nature, condition, and situa- tion of the property, and the relations of the parties thereto, and is a question of fact for the jury. Therefore it would seem that, when a person fraudulently asserts that the value of property is a certain sum, which he knows to be false, which assertion he makes as of a fact, with an intent to induce a purchase of stock from him at much more than its value, that at least as much consideration should be shown him as is shown to one who has been similarly cheated in the purchase of a mortgage of land, the value of which could be easily ascertained. At least it would seem to be right to give the vendee of such stock an opportunity to show whether the vendor and himself stood upon an equal footing as to means of information, and that the burden of proving this equality as to mea^is of information, is upon the defendant. See Cronk v. Cole, 10 Ind. 485 . In all cases where statements of value are attended with statements as to the elements that go to make up the value, which are false, such statements are not treated as statements of an opinion, but of facts, which, if false, render the person making them liable for all' damages resulting to the vendee from a purchase upon the faith of them. 5 Hill (N. Y.) 70 ; 50 N. Y. 480 ; i Starkie, 75. As to fraud on the part of a vendor of property, in reference to extrinsic facts which may affect the value of the property being negotiated for, it is held that, where the means of information are equally accessible to both parties, the vendor, although at the time in the exclusive possession of a knowledge of such defects, is not bound to disclose them, but he must be careful not to say or do anything to impose upon the vendee. In Laidlaw v. Organ, 2 Wheat. (U. S.) T95, Marshall, Ch. J., thus announced the rule : " The question in this case is. whether the in, telligence of extrinsic circumstances which might influence the price of the com- modity, and which was exclusively withint he knowledge of the vendor, ought to have been disclosed by him to the vendee. The court is of the opinion jhat he wa' 426 THE LA W OF TORTS. [Ch. XVIII. believing it to be true, has been damnified ; but if a person officiously interferes and gives directions to the sheriff, he may make himself responsible for trespasses committed by the sher- iff whilst acting in obedience to those directions, and may be- come liable to make good any damages which the sheriff himself has been obliged to pay in consequence of his having obeyed such directions ; (b) but it has been held that a mere indica- tion of the defendant's place of residence, endorsed on the back of a writ of fi. fa. by the attorney of the plaintiff, for the purpose of affording the sheriff information, is not a di- rection to execute a writ against the person pointed out, so as to render the attorney responsible if the endorsement should turn out to be incorrect, and to relieve the sheriff from the responsibility of making inquiry, and acting in the matter upon his own responsibility, (c) Il88. Warranties by vendors on sales of real property. — If, pending a negotiation for the sale of real property, the ven- dor affirms the rents to be more than they really are, and the person to whom the affirmation is made relies upon it and purchases the property, the vendor is liable to an action for {B) Collins V. Evans, 5 Q. B. 830. B. 129 ; diss. Wightman, J., Cronshaw v, (;■) Childers v. Wooler, 29 Law J., Q. Chapman, ante. not bound to disclose it. It would be difficult to circumscribe the contrary doctrine within the proper limits, — where the means of intelligence are equally accessible to both parties ; but at the same time, each party must take care not to say anything tending to impose upon the other." Butler's Appeal, 26 Penn. St. 63 ; Kintz- ing V. Elrath, 5 Barr. (Penn.). In Bench v. Sheldon, 14 Barb. N. Y.) 66, the plaintiff lost a flock of sheep, and having made diligent search for them without hnding them, the defendant meeting him — and knowing where the sheep were — asked the plaintiff if he had found them, and being answered in the negative, said, "I suppose you never will find them," s.ni offered him $ to for the sheep, which the plaintiff accepted. The court held that this was a fraud, and that the defendant was liable for the value of the sheep. The purchase of land when the vendee knows that there is a mine on it, and the vendor is ignorant of the fact, is not fraudulent if the vendee does not sav or do anything to throw the vendor off his guard. Harris v. Tysor, 24 Penn. St. 349. So, where a statement as to the value of property is fraudulently made with an in- tent to defraud another, and the facilities for obtaining information in reference to the value are not equal, or the vendor induces the vendee to forbear making in- quiries, or by any fraudulent practice induces him to rely on his statement, an action will lie for the damage resulting to the vendee therefrom ; Simar v. Cannady 53 N. Y. 298 ; JMcClellan v. Scott, 24 Wis. 81 ; Medbury v. Watson, 6 Met. (Mass.) 255 ; I Rolle's Abr. 91, pi. 8 ; also loi, pi. 16; Risney v. Selby, Salk. 211 ; Leaking Y. Clissel, 2 Ld. Rayd. 1118. Sec. I.] FRAUDULENT MISREPRESENTATION. 42; deceit whether he knew or did not know of the falseness of the affirmation at the time it was made, and although a con- veyance is subsequently executed which contains no notice of any such affirmation. A representation of this sort has been held to amount to a warranty of the fact, on the ground that the vendor had better means of knowledge than the pur- chaser, 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 landlord 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 will 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 will 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 particu- lar." [dy 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 con- tract ; as where a vendor of a leasehold house stated him- self 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 plaintiff 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 {d) Lysney v. Selby, 2 Ld. Raym. App. 21. II20. Ekins v. Tresham, I Lev. 102. See (/) Duddell v. Simpson, L. R., 2 Ch. Bos V. Helsham, L. R., 2 Exch. 72. App. 102. See Aberaman Iron Works {e) Dimmock v. Hallett, L. R., 2 Ch. v. Wickens, L. R., 4 Ch. App. loi. • As to title; Hays v. Bonner, 14 Tex. 663; as to improvements; Miller v. Howell, 2 111. 499 ; as to quantity ; Howell v. Chilton, 2 W. Va. 410 ; Harlow v. Green, 34 Vt. 379 ; as to price piid for it by vendor ; Hemmer v. Cooper, 8 Allen (Mass.), 334 ; as to quality and description ; Sikes v. Baer, S Iowa. 368. See note >• P^ge , Cinte. 428 THE LAW OF TORTS. [Ch. XVIII. plaintiff was entitled to maintain an action' against the defend- ant for the deceit. ( j-) ' 1 189. False representations of title by vendors of corporeal and incorporeal hereditaments. — Representation^ not amounting to a warranty. — Representations and assertions of title by a vendor of real property, where the title-deeds are submitted to the inspection of the purchaser, who exercises his own or such other judgment as he confides in on the goodness of the title, amount only to expressions of opinion and belief, and can not be treated as a warranty. (Ji) Every prudent pur- chaser of real property looks into the title of the 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 con- tent 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. (?) 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 representa- t' on had accepted a conveyance, without requiring any cov- :rnant for title. (/^) " (^) Dobell V. Stevens, 3 B. & C. 623. Ld. Alvanley, C. J., in Johnson v. John- Canhnm v. Barry, 15 C. B. 597. son, 3 B. & P. 170. Duke v. Barnett, 2 (/;) Roswell v. Vaughan, Cro. Jac. ig5. Coll. Ch. C. 337. Maynard v. Moseley, See Humev. Pocock, L. R., I Ch. App. 3 Swanst. 655. 379. (Ji) See per Turner, L. J., in Hume v. {i) Bree v. Holbech. 2 Doug. 655 ; Pocock, L. R. i Ch. App. 385. ' The rule is that if the owner of a lease fraudulently greatly, exaggerates its value, and tliereby induces another to purchase it at a price largely in excess of its value, his statements can not be regarded as mere puffing, but is a statement of a substantive fact, which renders him liable for damages to the purchaser. Adams v. 'Soule, 33 Vt. 538. '' McCreery v. Pursley, I A. K. Mar. (Ky.) 114 ; Aldrich v. Warren, 16 Me. 465. As to the effect of stifling inquiry, see Medbuiy v. Watson, 6 Mass. 298 ; Hubbard v. Meigs, 50 N. Y. 480 ; Dawes v. King, 1 Starkie, 75 ; Van Epps v. Har- rison, 5 Hill (N. Y.) 70; Simar v. Carmady, 53 N. Y. 298. Sec. I.] FRAUDULENT MISREPRESENTATION. 429 1 190. Representation of title on sales of chattels amounting to a warranty. — " Where one having the possession of any per- sonal chattel, sells it, the bare affirming 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 color 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." (/) Mr. Justice BULLER, however, has disclaimed any distinction between the vendor's being in or out of possession, treating the affir- mation as equivalent to a warranty in both cases, {in) 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 false- hood, and must answer in damages." {n) In the ordinary case of a sale of goods in a shop, the seller does in effect war- rant that the goods are his own, and is liable if they are not. {0) However, if a man does not sell 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 pre- sumed to sell only such a title as he actually possesses. \p) ' Where the defendant sold a boiler (affixed to a house, but removable piecemeal without injury), which had been dis- trained for a poor-rate, and which he had bought at the auc- tion, to the plaintiff, explaining to him at the same time the (/) Medina v. Stoughton, i Salk. 210. Cro. Jac. 474 ; i Roll. Abr. go, pi. 6. Crosse v. Gardner, Carth. 90. (0) Eicholz v. Bannister, 34 Law J., {m) Pasley v. Freeman, 3 T. R. 58. C. P. 105. {«) Per Best, C. J., Adamson v. Jar- {f ) Chapman v. Speller, 14 Q. B. 624. vis, 4 Bing 73. Furnis v. Leicester, Morley v. Attenborough, 3 Exch. 500. ' In reference to the title of personal property, the rule is that where the chat- tel at the time of sale is in the possession of the vendor he is treated as warranting his title thereto ; Grap v. Kierski, 41 Cal. Ill ; Storm v. Smith, 43 Miss. 497 ; Bardwell v. Colie, i Lans. (N. Y.) 141 ; but where the chattel is in the possession of third persons a warranty is not implied ; Storm v. Smith, 43 Miss. 497 ; Scranton v. Clark, 39 N. Y. 220 ; nor when a written bill of sale embracing the contract is given ; Sparks v. Mesick, 65 N. C- 440. In reference to affirmations as to the title of chattels, the maxim caveat emptor does not apply. Common prudence does not re- quire that the purchaser should investigate the title, and he has a right to rely on the assertions of the vendor as to his title. Crosse v. Gardner, I Salk. 210 ; Medina V. Stoughton, I Ld. Rayd. 593 ; Defreeze v. Trumper, i Johns. (N. Y.) 274. 4,30 THE LAW OF TORTS. [Ch. XVIII. circumstances, it was held that the plaintiff (who had been prevented by the mortgagees of the house from removing it) could not sue the defendant on a warranty of title, or upon an implied undertaking that he should be permitted to remove it. {q) 1 191. False representations by manufacturers of the char- acter, and quality of the articles they manufacture and sell. — The manufacturer of an article has superior means of infor- mation as to the nature and quality' of the article he makes than a stranger not engaged in the manufacture. If, there- lore, he represents the article he makes to be of some supe- rior or peculiar quality, or to be fit for some particular pur- pose, in order to recommend it to a purchaser, his represen- tation 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 sells is of a parti- cular quality, or fit for a particular specified purpose." Where, therefore, the plaintiff, a shipowner, on being intro- duced to the defendant, a copper manufacturer, stated that he wanted some copper for sheathing a vessel, and the defend- ant 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 pur- chaser, who is necessarily ignorant of the nature of the article sold, from imposition, whilst the person who manufac- tures it must, or ought to, know its particular virtues and qualities, if) But when the purchase is of a well-known Ascertained 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) ' (q) Bagueley v. Hawley, L. R., 2 C. Bing. 533. P. 625. (j) Chanter v. Hopkins, 4 M. & W (r) Jones v. Bright, 3 M. & P. 174 ; 5 399. Camac v. Warriner, I C. B. 367. ' Where a machinist sold a machine which was wholly worthless, representing Sec. I.] FRAUDULENT MISREPRESENTATIQN. 431 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. (t) | 1 192. Representations by a vendor who is told that the pur-^ chaser wants the article he proposes to buy for a particular pur- pose. — 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 understanding of the parties that the pur- chaser 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 can not after- wards 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 im- plied warranty that the thing furnished shall be fit and proper for the purpose for which it was designed." {u) ' 1 193. False representations by vendors made to absent pur- chasers 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 (0 Brown v. Edgington, 2 M. & Gr. («) Tindal, C. J., in Brown v. Edging. 279. Addison on Contracts, 6th ed., ton, 2 M. & Gr. 289. See Walker v. Mil- p. 213. ner, 4 F. & F. 745. it to be a good one, it was held to be a fraud although the vendor was, through want of skill in his business, ignorant that the machine was not a good one ; Donel- son V. Young, Meigs (Tenn.) 155. See Holden v. Clancy, 58 Barb. (N. Y.) 590 ; Post Carbon Iron Co. v. Graves, 68 Penn. St. 149 ; and generally, when a manu- facturer sells a manufactured article, knowing the purpose for which it is to be used, there is an implied warranty on his part that it is fit for that use ; Lespard v. Vankirk, 27 Wis. 152 ; Boothby v. Scales, 27 Id. 626 ; Field v. Kinnear, 4 Kan, 476. ' Lespard v. Van Kirk, 27 Wis. 152 ; Boothby v. Scales, 27 Id. 626 ; Field Kinnear, 4 Kan. 162. 432 THE LAW OF TORTS. [Ch. XVIIl no means of judging for himself, but relies exclusively on the judgment and good faith of the vendor, {x) 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 particu- lar article required, and the purchaser has had no opportunity of inspection or examination, the representation of the vendor amounts to a warranty of the fact, (^y) If an article, repre- sented 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, (^r) " A seller," observes Lord Ellenborough, " is unquestionably liable to an action for deceit if he fraudu- lently 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 other- wise have made." (a) ' 1 194. False representations by vendors where the purchaser has means of examination and judgment — Sale of goods by sample. — Whenever the vendor is not himself the manufac- turer of the goods he sells, and the purchaser is afforded the means of inspection and examination, and of forming his own 'udgment of their quality, the representations made by the vendor of the quality of the goods amount merely to asser- tions 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 con- stitute a fraud in law, though it was not true in point of fact. The rule of caveat emptor applies, and the representatioii loes not furnish a ground of action. (^) {x) Ld. Ellenborough, C. J., in Gardi- (z) Wieler v. Schilizzi, 25 I/aw J., C. ner v. Gray, 4 Campb. 145. P. go. (>■) Bridge v. Wain, i Stark. 504. (a) Vernon v. Keys, 12 East, 637. {b) Ormrod v. Huth, 14 M. & W. 664. ' Thus, where a person makes false statements in reference to lands situated in a distant county, it is immaterial that the other party has correct sources of infor- mation. He may rely on the vendor's statement Spaulding v. Hedges, 2 Penn. 3t. 240. Sec. I.] FRAUDULENT MISREPRESENTATION. 433 Every person who exhibits a sample of goods for sale, impliedly represents or 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 fraud- ulent dealings with the goods by persons through whose hands they have passed. Thus, where the plaintipff 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 un- saleable shortly afterwards, it was held that the defendant, who had fairly drawn and exhibited the samples, and was wholly 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 pur- chaser 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, unmerchanta- ble 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 ex- hibited 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 wa? not maintainable, unless the jury could see grounds for in- ferring that the defendants or their brokers were acquainted (<) See 29 & 30 Vict. c. 37. {d') Parkinson v. Lee, 2 East, 320. II.— 28 434 THE LAW OF TORTS. [Ch. XVIII. with the fraud that had been practiced 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 arti- cle shown by sample, and the sample is fairly taken from the bulk, there is no misrepresentation or deceit, although the vendor may have given an incorrect description of the age or quality of the article, provided the description was hon- estly given in full belief of its truth. (/) A sale, however, by sample of goods to order includes a warranty of merchanta- ble quality as to all matters that can not be judged of by the. sample, {gy 1 195. False representations by railway companies amounting to a warranty. — It has been held that railway companies must 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 foundation of an action of deceit by any person who has relied upon the representation, and has sustained damage in consequence thereof, {fi) '' {e) Ormrod v. Huth, 14 M. & W. 663. 49 ; 38 Law J., Exch. 12. (/) Carter v. Crick, 4 H. & N. 412 ; {h) Denton v. Great Northern Rail. 28 Law J., Exch. 238, Co., 5 Ell. & Bl. 867 ; 25 Law J., Q. B. \g) Mody V. Gregson, L. R., 4 Exch. I2g. ' To constitute a sale by sample, the contract must have been made solely with reference to the sample exhibited, and this must have been understood by both parties. Day v. Raguet, 14 Minn. 273 ; Kellogg v. Barnard, 6 Blatch. (U. S.) 279 ; Hubbard v. George, 49 111. 275 ; Whittaker v. Hueske, 2g Tex. 355 ; Conrad v. Dater, 2 Biss. (U. S.) 342 ; Barnard v. Kellogg, 10 Wall. (U. S.) 383 ; but, if the party has an opportunity to examine the goods themselves, and does do so, it is not a sale by sample ; Barnard v. Kellogg, ante ; Hubbard v. George, ante ; and where there is a sale by sample, if there is a substantial compliance therewith, an action ^srill not lie even though the goods are not precisely like the sample in in all respects. Leonard v. Fowler, 44 N. Y. 280. ' It can no,t be fiUimed that the publication of a time-table by a railroad com- pany amounts to an $bs<]lute warranty that its trains shall arrive and depart at its diflferent stations at the times named therein, but it does impose upon such com. panics the duty of ejfercising due care and skill to have the cars arrive and depart at fte precise time designated- therein, and when through negligence or want of can oil its part, its trains are delayed, whereby a person seeking conveyance over the road by such train is delayed and sustains damage, he may maintain an action therefor. But in all cases whan the train is delayed or fails to stop at a station, fee fiompaay may show that the delay or neglect arose from matters which it couW Sec. I.] FRAUDULENT MISREPRESENTATION. 435 II96. False representations of authority — {iy^Pretendea agency — Deceit by agents. — If the vendor of goods affirm 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 sells them falsely and fraudulently on this pretense 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. (Jz) If an agent, who has no authority to make a contract in the name of his principal, and knows it, neverthe- less makes the contract as having such authority, he is re- sponsible in an action for deceit, for he induces the other party to enter into the contract on what amounts to a mis- representation 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, bona fide believes that he has authority, but has, in fact, no authority, he is still per- sonally liable. It is a wrong, differing only in degree, but not m 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 ulti- mately 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 (s) Mere excess of authority does not Crosskill, L. R., lo Eq. Ca. 82. constitute equitable fraud. Stewart v. (k) i Roll. Abr. 91, pi. 7. Austin, L. R., 3 Eq. Ca. 299. Ship v. not prevent by proper care or reasonable diligence. Gordon v. Manchester R. R. Co., 52 N. H. 596 ; Weed V. Panama R. R. Co., 17 N. Y. 362 ; Sears v. Eastern R. R. Co., 14 Allen (Mass.) 433 ; Boston & Maine R. R. Co. v. Bartlett, 5 Cush. (Mass.) 227 ; Brown v. Eastern Railroad, II Id. loi ; Malone v. Boston & Worcester R. R. Co., 12 Gray (Mass.) 388 ; Lafayette R. R. Co. v. Simms, 27 Ind. 59 ; Dunlop. v. Edinburgh & Glasgow R. R. Co., 16 Jurist, 407 ; Denton v. Gt. Northern R. R. Co., El. 8: BI. 860 ; N. O., &c., R. R. Co. v. Hartz, 36 Miss. 360 ; Heirn v. McCaughan. 2 Miss. 17 ; Strohn v. Detroit, &c., R. R. Co., 23 Wis. 126 ; Hawcroft v. Gt. Northern R. R. Co., 8 Eng. Law & Eq. 362. 436 THE LAW OF TORTS. [Ch. XVIII. and who has relied on the correctness of the assertion, it is equally just that he who makes the assertion should be per- sonally liable for its consequences. (/) "One person may," observes Erle, J., " assert he has authority to make a con- tract on behalf of another, and bona fide believe it, and yet it may be deceit i{ he makes the positive assertion without dis- closing 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 mistake 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 in- curred by the plaintiff on the strength of the representa- tion. («) "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 assertion of the authority being untrue. This is not the case of a bare mis-statement to a' person not bound by any duty to give information. 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 al- leviates 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 op- portunity of judging for himself, has brought about the dam- age. The obligation arising in such a case is well expressed by saying that the person professing to contract as agent for (/■) Alderson, B., Sraout v. Ilbery, lo 25 Law J., C. P. 307. Richardson v. M. & W. 9 ; Polhill v. Walter, 3 B. & Dunn, 8 C. B., N. S. 655 ; 30 Law J., C' Ad. 114. P. 44. (m) Jenkins v. Hutchinson, 13 Q. B. («) CoUen v. Wright, 8 EIL & Bl. 647 ; 748 Randell v. Trimen, 18 C. B. 786 ; 26 Law J., Q. B. 147 ; 27 Id. 215. Sec. I.] FRAUDULENT MISREPRESENTATION. 437 another impliedly undertakes with the person who enters into such a contract upon the faith of his being duly author- ized, that the authority he professes to have does in point of fact exist." () If the authority is of a public nature, or the grounds of it are known to the 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 mani- fests an intention merely to bind the principal if he has powers so to do, and guards himself against any positive rep- resentation of authority, he will not then be responsible if it should turn out that he had not the power he was supposed to possess, {q) 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 de- ceit ; {s) it is otherwise, however, if he knowingly makes a false representation with intent to deceive his employer. {{) 1197. When a principal is responsible for the fraud of his agent. — Deceits and frauds practised by agents do not fall 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 trans- action of the ordinary business of the principal. The gen- (0) Collen V. Wright, supra. Pow v. Livingston, L. R., 5 Eng. and Ir. App. Davis, I B. & S. 220 ; 30 Law J., Q. B. 395. 257. (j) Thorn v. Bigland, 8 Exch. 729. {f) Richardson v. Williamson, L. R., (/) Pewtriss v. Austen, 6 Taunt. 522. 6 Q. B. 276. See Cherry v. Colonial (u) Addison on Contracts, 5th edit. Bank of Australasia, L. R., 3 P. C. Ca. 617-621. Udell v. Atherton, 7 H. & N. 24. Leather v. Simpson, L. R., ii Eq. 181 ; 30 Law J., Exch. 337. Barry v. Ca. 398. Croskey, 2 Johns. & Hem. I. New ((/) Macgregor v. Deal and Dover Bruns. and Can. Rail. Co. v. Conybeare, Rail. Co., 22 Law J., Q. B. 69. ante. See Wilson v. Rankin, L. R., I (r) See, per Blackburn, J., Ireland v. Q. B. 162. ,,438 THE LAW OF TORTS. [Ch. XVIII. eral rule is, that the master is answerable for every such wrong of the servant or agent as is committed in the course of the service, and for the master's or principal's benefit, though no express command or privity by the master or principal be proved, {v) ' Thus, a trustee who employs a sol- icitor to invest the money of the cestui que trust, is responsi- ble if the solicitor fraudulently fabricates a surrender of copy- holds by which the cestui que trust incurs loss, {x) An ex- ception to this rule occurs in the case of misrepresentation by directors of public companies, 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 deriving any benefit from it, but when once he takes the benefit he be- comes a party to the fraud. "(^) 1 198. 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 in obedience to his com- mands, and which would have been lawful if the employer had the authority he pretended to have. («) If a landlord employs a bailiff, 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 land- lord had no right to distrain, and the bailiff has to pay (z/.) Barwick v. English Joint Stock (y) Western Bank of Scotland v. Ad- Bk., L. R., 2 Exch. 259. die, ante. \x) Bostock V. Floyer, L. R., I Eq. Ca. (z) Wood, V. C, Scholefield v. Tem- 26. Sutton V. Wilders, L. R., 12 Eq. Ca. pier, i Johns, 163. ace. (a) Best, C. J., Adamson v. Jarvis, 4 Bing. 72. ' Bennett v. Judson, 21 N. Y. 138 ; Locke v. Stearns, I Met. (Mass.) 540 ; Jef- frey V. Bigelow, 13 Wend. (N. Y ) 518 ; Durst v. Burton, 47 N. Y. 167 ; AUerton v. AUerton, 50 Id. 670 ; Cook v. Cartner, 9 Cush. (Mass.) 266 ; Sandford v. Hurdy, 23 Wend. (N. Y.) 266 ; Chester v. Dickenson, 52 Barb. (N. Y.) 349. Sec I.] FRAUDULENT MISREPRESENTATION. 439 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. (^) 1 199. Counterfeiting trade-marks — Fraudulent use by one ferson 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 purchasers and making them believe the goods to be the goods of the manufacturer who has introduced the mark, is guilty of a false and fraudu- lent representation, and if this produces damages to another, the person injured is entitled to an action for the deceit, {c) Where " a clothier in Gloucestershire sold very good cloth, So that in London if they saw any cloth of his mark they would buy it without 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 de- ceit, it was adjudged maintainable." ( sound and fit for that purpose. Hoover v. Peters, 18 Mich. 51 ; Divine v. McCor- mick, 50 Barb. (N. Y.) 116. 442 THE LAW OF TORTS. [Ch. XVIII. enforce by leason 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 con- tract with him. (k) Nor for falsely affirming goods to be his own goods, and that he had a right to sell them, and thereby inducing the plaintiff to purchase them. (/) 1205. Fraudulent concealment — A suppressio veri, or con- cealment of the truth, will alone, in certain cases, and under certain circumstances, 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. (»«) 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 decep- tion." («) 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 plaintiff 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. (0) If it is a custom of trade for a vendor of merchandise to disclose particular defects at the time of the sale, if he is cognizant of their existence, the vendor will be respon- sible in damages for a fraudulent concealment, if, knowing of the particular defect, he fails to make the customary dis- closure. (/) ' And if the vendor is cognizant of any serious (i) Liverpool Adelphi Loan Assoc, v. (?«) Anon., cited by Gibbs, J., Picker- Fairhurst. Wright v. Leonard, ante. ing v. Dowson, 4 Taunt. 785. {k) Johnson v. Pye, I Sid. 258. Bart- \n) Gibbs, C. J., Peto v. Blades, 5 lett V. Wells, r B. & S. 836 ; 31 Law J,, Taunt. 659. Q. B. 57. Price v. Hewett, 8 Exch. (<;) Stevens v. Adamson, 2 Stark. 422. 146. \p ) Jones V. Bowden, 4 Taunt. 846. (/) Grove V. Nevill. i Keb. 778. ' Griggs V. Woodruff, 14 Ark. g ; Torrey v. Buck, 2 N. J. 366 ; State v. Hallo- " way, 8 Blackf. (Ind.) 45 ; Cape v. Arherny, 2 J. J. Mar. (Ky.) 796 ; Linker v. Smith, Sec. I.] FRAUDULENT MISREPRESENTATION. 443 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 laboring 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 willful deceit. (^) ' But if the defect is patent, and {q) Hill V. Gray, I Stark. 434. 4 Wash. (U. S.) 224. Whenever an article has a latent defect known to the seller and not known to the buyer, or when animals are afflicted with a contagious disease, to the knowledge of the seller and not known by the buyer, and generally in all instances where there is a legal or moral obligation upon the vendor to communi- cate to the vendee certain facts relative to the chattels, known to the vendor and not to the vendee, the suppression of such facts is a fraud. Dickinson v. Davis, 2 Leigh (Va.) 401 ; Van Arsdale v. Howard, 5 Ala. 596 , Jenkins v. Simpson, 14 Me, 364 ; Wortsen v. Richardson, 18 111. 23 ; Dupre v. Uzee, 6 La. An. 280 ; Durrell v. Haley, I Paige (N. Y.) 492 ; Prentiss v. Rup, 16 Me. 30 ; Stuart v. Luddington, I Rand. (Va.) 403. The obligation must be jure et de jure, and not merely in foro conscientia. Harris v. Tyson, 24 Penn. St. 347 ; Matthews v. Bliss, 22 Pick. (Mass.) 4S. ' The doctrine of implied warranty upon the sale of property for a special pur- pose is extended to cover the sale of articles for the consumption of man or beast for the purposes of food. This doctrine is well illustrated in the case of French v. Vining, 102 Mass. 132. In that case the defendant sold to the plaintiff a quantity of hay to be fed to her cow, upon which the defendant knew that a quantity of white lead had been spilled. He had attempted to remove all the hay affected by it, and supposed he had, but knowing that the plaintiff wanted the hay to feed to her cow, he did not disclose the fact to her that paint had been spilled on it, and as a result she fed the hay to her cow and it sickened and died. The court held that the defendant was liable. Ames, J., in delivering the opinion of the court, said : " It may, perhaps, be more accurate to say, that independently of any express or formal stipulation, the relation of the buyer to the seller may be of such a character as to impose a duty upon the seller differing very little from a warranty. The cir- cumstances attending the sale may be equivalent to a distinct affirmation on his part as to the quality of the thing sold. A grocer, for instance, who sells at retail, may be presumed to have some general notion of the uses which his customers will jnake of the articles they buy of him. If they purchase Jlour, or sugar, or other articles of daily domestic use iox their families, ox grain or meal Iok their cattle, the act of selling to them under the circumstances is equivalent to an affirmation that the things sold are at least wholesome and reasonably fit for use, and proof that he knew at the time of the sale that they were not wholesome and reasonably fit for use, would be enough to sustain an action against him for deceit, if he ,4a(/Ko/ disclosed the true state of facts. The buyer has a right to suppose that the thing which he buys, under such circumstances, is what it appears to be, and such purchases are usually made with a reliance upon the supposed skill or actual knowledge of the vendor'' So in reference to articles sold for domestic use generally, there is an ini- 444 THE LA W OF TORTS. [Ch, XVIII. 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 plied warranty that tliey are fit for such use ; Winsor v. Lombard, l8 Pick. (Mass.) 57 ; Emerson v. Brigham, lo Mass. 197 ; Van Bracklin v. Fondu, 12 Johns. (N. Y.) 468 ; but this is restricted to cases where the seller is presumed to know the quality of the goods, or is a professed dealer therein ; Moses v. Nead, 1 Den (N. Y.) 378 ; Burnby v. Ballett, 16 M. & W. 644 ; and is not extended to cases where it is evident that the purchaser relies upon his own judgment, or upon the brand u^on the goods; Emerson v. Brigham, ante; Winsor v. Lombard, ««!'«/ but in a// cases where the seller says or does anything which misleads a person in purchasing the article, upon his own judgment, or upon faith of the brand thereon, he is liable for fraud, even though he sold it with all faults. This is well illustrated in the case, Shepard v. Kain, 5 B. & Aid. 240, where the defendant advertised a vessel for sale, and represented it as a copper-fastened vessel, but that it was to be sold with ah faults. The vessel lay in the water, so that its bottom could not be examined, and it turned out that slie was only partially copper-bottomed, and was not what is known to the trade as a copper-fastened vessel. The court held that the defendants were liable, and that the words with all faults must be construed to mean all faults which a copper-fastened vessel had. So where fish or beef or any articles of food are sold as merchandise in barrels that have been branded and inspected, or that bear a particular mark, or the name of a particular manufacturer, the vendor can be regarded as warranting only that the goods are of the class, kinds and description represented by the marks or brands, and, in the absence of an express warranty or representations amounting thereto, is not liable if the quality of the articles is not good ; Winsor v. Lombard, ante y Emerson v. Brigham, ante ; but if the vendor knew that the goods were bad, he would be liable for fraud ; Emerson v. Brigham, ante. A description of goods in an invoice, as of a particular description or quality, is held to amount to a warranty that they are of that quality ; Hastings v. Layering, 2 Pick. (Mass.) 220 ; Bridge v. Wain, i Starkie, 504 ; so as to articles of food or drink, there is an implied warranty on the part of a manufacturer thereof that the goods are merchantable. Thus, in Hol- corabe v. Hewson, 2 Camp. 391, the plaintiff was a brewer, and entered into a con- tract with the defendant, by the terms of which the defendant was to take all the beer he manufactured, and that if he did not, he should pay an advanced rent for the house he occupied. The beer proved bad, and not merchantable, and in an action by the brewer upon the contract, it was held that he must be regarded as having warranted the beer to be of a merchantable quality. And generally, in the sale, personalty, of any kind or description, there is an implied warranty that the goods are of the kind or description for which they are sold, and of the quality designated in the contract ; Higgins v. Plimpton, 2 Pick. (Mass.) 214 ; Hastings v. Layering, n Id. 97 ; Osgood v. Lewis, 2 Har. & G. (Md.) 495 ; and if the vendor knows that the property is not what it purports to be, or what the vendee supposes he is buying, or that it is unwholesome, deleterious, or dangerous, silence would be deceit of itself; McDonald v. Snelling, 14 Allen, 290 ; Thomas v. Winchester, 6 N. Y. 397 ; Langridge v. Levy, 2 Mees. & Well. (S. C.) ;,09. In all cases of the sale of articles of food there is an implied warranty that they are wholesome, and not, by reason of disease, decay, or adulteration, injurious to health ; this implied warranty grows out of a duty to the public en the part of Sec. I.] FRAUDULENT MISREPRESENTATION. 445 apply. But the vendor must in no case resort to any art or contrivance to conceal a defect, for if he does he will be an- swerable, as we have just seen, for willful deceit. " If 1 sell ihe vendor, as well as out of the contract itself, and the fact that the vendor does not know that the articles are unwholesome or dangerous, does not absolve him from' this duty or obligation, if there is any thing in the nature of the article itself that should put him on his diligence. Quite recently, in England, a grocer was indicted for selling adulterated tea, injurious to the health of those using it. The defendant showed that he did not know that the tea was adulterated, but it being shown that such adulteration could be readily detected by dealers in tea upon ex- amination, the court held him amendable to punishment. See Langridge v. Levy ; 2 M. & W. 519; Thomas V. Winchester, 6 N. Y. 397; Goodrich v. People, 5 E. D. S. (N. Y.) 549 ; State v. Norton, 2 Ired. (N. C.) 40. So, where goods are sold by sample,the law implies a warranty that the goods shall conform in kind to the sample, but not that the goods are sound or in good condition ; Andrews v. Kneeland, 6 Cow. (N. Y.) 354 ; Sands v. Taylor, 5 Johns. (N. Y.) 404 ; Gallagher v. Waring, g Wend. (N. Y.) 20 ; Mfg. Co. v. Lawrence, 4 Cow. (N. Y.) 440 ; Bradford v. Manly, 13 Mass. 139; Connor v. Henderson, 15 Id. 319; Beebe v. Roberts, 12 Wend. (N. Y.) 413 ; and in the case of all executory contracts for goods there is an implied warranty that they shall be merchantable ; Hamilton v. Ganyard, 34 Barb. (>f. Y.) 204 ; and in all cases of the sale of personal property upon inspection, where the means of knowledge on the part of the vendor and vendee are equal, no warranty is implied, but if the article is such that the vendor is presumed to have some superior knowledge in reference to it, the law implies a warranty that it is of the kind and quality represented ; Lord v. Graw, 39 Penn. St. 88 ; Denning v. Foster, 42, N. H. 165 ; but on the sale of notes and other negotiable securities, there is an implied warranty that they are genuine ; Thompson v. McCullough, 31 Miss. 224 ; Sill V. Road, 15 Johns. (N. Y.) 240 ; Ritchie v. Summers, 3 Yeales (Penn.) 531 ; 6 Mass. 182. Where the purchaser knows that an article is not as represented, the law will not imply a warranty ; Wood v. Ash, i Strob. (S. C.) 407 ; nor where the defects complained of are visible, or the sources of information are equally open to both parties ; Hudgkins v. Perry, 7 Ired. (N. C.) 102 ; nor will a warranty be im- plied as to defects where there is an express warranty. The contract will be treated as covered by and included in that warranty, and excludes all idea of any other or further warranty ; nor will a warranty be implied when there is a written bill of sale ; Sparks v. Merrick, 65 N. C. 440. When a merchant sells goods to be sent to a distant market, it is said that the law will imply a warranty that the goods are properly packed and fit for such shipment. But that this warranty does not go to the extent that the goods shali remain sound for any particular time. The con- tract is answered if at the time of shipment they were in a proper condition ; Mann V. Evertson, 32 Ind. 355. As to whether or not acts done or words used by a person on the sale of prop- erty was intended as a warranty, is a question of fact for the jury, and an express intent is not essential. It is enough if, in view of the nature, character, and de- scription of the property, the situation of the parties and their facilities for knowl- edge in reference to the property, the plaintiS was justified in relying upon the acts done or statements made by the party, as the statement of s^fact rather than the expression of an opinion. Hawkins v. Pemberton. 51 N. Y. 198 ; Foster v. Cald- well, 18 Vt. 176 ; Bradford v. Bush, 10 Ala. 386 ; Blackman v. Mackay, i Hilt. (N 446 THE LAW OF TORTS. [Ch. XVIII. 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 {r) Southern v. Howe, 2 Roll. 5. Y.) 266. No particular form of words are necessary to constitute a warranty. It is enough if the vendor, at the time of sale, makes assertions in reference to the property material to its value, that the vendee does, in fact, and has a right to rely upon as true. Blackman v. Mackay, ante. It is not the privilege of the vendee to rely upon every statement made by a vendor as to all matters in reference to which he has an equal opportunity with the vendor to form a jndgment or opinion ; he can not blindly trust the vendor and allow his own judgment to be overridden by his. He must not shut his eyes to visible defects, or those a.scertainable by the ex- ercise of a reasonable diligence. He must — in the absence of artifice or fraud to prevent it — do that which a prudent man would do under the same circumstances. Beyond that he is not bound to go. He need not make an unusual or extraor- dinary effort to ascertain the quality or character of the goods, but having done that which a prudent man similarly situated would have done, he may rely upon the statements of the vendor, and. for all essential purposes they are a warranty to the full extent of their purport. Lamme v. Gregg, i Met. (Ky.) 444 ; Dean v. Money, 33 Iowa, 120 ; Carter v. Black, 46 Mo. 381 ; Quintard v. Newton, 5 Rob. (N. Y.) 72 ; Bigler v. Flickinger, 55 Penn. St. 279 ; Terhune v. Bener, 36 Ga. 648 ; Jones V. Quick, 28 Ind. 125. A warranty may be implied from a usage of trade. Thus, where a usage was shown among tobacco dealers of Cincinnati, to warrant all tobacco of a particular kind to remain sound and merchantable for the period of four months after its sale, it was held that this was a reasonable usage, and being established as such, was operative as a warranty ; Fatnian v. Thompson, 2 Dis. (Ohio) 482 ; but, of course, in such cases, the usage must be general and well known, so as to fairly enter into and form n part of the contract of sale, and both the vendor and vendee must be aware of it, and contract with reference to it. In reference to a warranty of title, the rule is, that when the property is in the possession of the vendor, there is an implied warranty of title, but, when the prop- erty is in the custody of a third person, the maxim caveat emptor, which, according to Evans, in his notes on sales of property, 32, is interpreted to mean " the devil take the hindmost," applies, and in such cases the vendee is bound, to require an express warranty of title, or he is remediless upon its failure ; Storm v. Smith, 43 Miss. 497 ; Sparks V. Merrick, 65 N. C. 446 ; Linton v. Porter, 31 111. 107 ; Miller v. Van Tassell, 24 Cal. 458 ; Tatum v. Mohr, 21 Ark. 349 ; Johnson v. Meyers, 34 Miss. 255 ; Tipton v. Triplett, i Met. (Ky.) 570 ; Ward v. Cavin, i Head (Tenn.) 506 ; Williamson v. Sammons, 34 Ala. 6gi ; Gross v. Vierski, 41 Cal. iii. In the sale of property every vendor et jure de jure is bound, where they know that the purchaser is laboring under a delusion in reference to it which materially influences his judgment, to remove that delusion, and, failing to do so, he is guilty of an actionable fraud, as much as though he had by positive false assertions induced the sale. Thus in Hill v. Gray, i Starkie, 434, the plaintiff employed an agent to sell a painting for him. The defendant, being desirous of purchasing it, pressed Butt to inform him who owned the picture, which he refused to do. In the course of nego- tiations for the picture, the defendant, being misled by circumstances, erroneously supposed that the picture was the property of Sir Felix Agar. Butt knew that tt Sec. I.] FRA UDULEN T MISREPRESENTA TION. 447 resorted to any 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 all the damages he has sustained by the deception ; (j) but on a gen- ; eral sale of a horse, when there is no warranty, the rule of caveat emptor applies ; and, except there be deceit, either by a fraudulent concealment or fraudulent misrepresentation, no action for unsoundness lies by the vendee against the vendor of the animal. (/) 1206. Fraudulent concealment of the dangerous nature of articles delivered to a bailee 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 ware- housed 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 (s) MuVett V. Mason, L. R., i C. P. {t) Hill v. Balls, 2 H. & N. 299 ; 2) 559- Law J., Exch. 45. defendant labored under this delusion, but did not remove it, and the defendant, under this misapprehension purchased the picture. In action against the defendant for the price of the painting, he set up this matter in defense, as a fraud upon him. Lord Ellenborough said, "Although this were the finest picture that Claude ever painted, it must not be sold under a deception. The agent ought to have cautiously adhered to his original stipulation, that he should not communicate the name of the proprietor, and not to have let in a suspicion, on the part of ike purchaser, which he knew enhanced the price. He saw that the defendant had fallen into a delusion in supposing the picture to be Sir Felix Agat's, and yet he did not remove it." For this fraud the court held that the contract was void. " This case said the learned judge "has arrived at its termination ; since it appears that the purchaser labored under a deception, in which the agent permitted him to remain on a point which he thought material to influence his judgment, I am of opinion that the contract is void." The doctrine announced in this case, that the artful concealment of a fact exclusively within the knowledge of the vendor, and known by him to be material, is a fraud which will avoid a contract or sustain an action where damage results, has been recognized by numerous authorities in this country. Engle v. Burns, 5 Call (Va.) 463 ; Prentiss v. Ross, 16 Me.,:30 ; Story v. R. R. Co., 24 Conn. 94 ; Truebody t. Jacobson^ 2 Cal. 269 ; Trigg v. Reed, 5 Humph. (Tenn.) 529 ; McAda; V. Cotes, 24 Mo. 223 ; Durrell v. Haley, I Paige (N. Y.) 492. 448 THE LAW OF TORTS. [Ch. XVIII. what they were, without an express averment that he knew them to be dangerous. («) ' "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 shipping dan- gerous goods without a communication of their nature, when neither he nor the shipowner are aware of the danger. It seems very difficult to hold that the shipper can be liable for not communicating what he does not know. " Lord Ellen- («) Hutchinson v. Guion, 5 C. B., N. S. Barnes, II C. B., N. S. 553 ; 31 Law J., 149 ; 28 Law J., C. P. 63. Farrant v. C. P. 139. ' Boston & Albany R. R. Co. v. Shandley, 107 Mass. 568. See note i, p. 713, vol. I. ' The principle or rule of law was well settled in the case of Williams v. The East India Company, 3 East, 192, that a person who delivers to a common carrier a highly combustible or explosive compound for transportation, without notifying him of the nature of the article, is liable for all the damages resulting therefrom, and this doctrine has been recognized and acted upon in numerous cases since. The doctrine is predicated upon the principle that, in such a case, the shipper owes a duty to the carrier, to inform him of the character of the article, in order that he may reject it if he chooses, or if he receives it, may exercise proper precaution to prevent injury to himself or others therefrom, and where either the property or persons of others may be injured thereby, the duty is still stronger in a moral, although in a legal sense it is the same. The rule is in nowise dependent upon a contract, express or implied, but it is an absolute duty that the law imposes upon every member of society, and is expressed in that time-honored maxim, sit utere tuo alienum nan ladas ; Brass v. Maitland, 6 El. & Bl. 470; Farrant v. Barnes, 11 C. B. (N. S.) 553 ; Boston & Albany R. R. Co. v. Shanley, et al., 107 Mass. 568. The same principle controls in such a case as upheld a recovery in Thomas v. Winchester, 6 N. Y. 397, against a druggist, for a careless sale of a poisonous drug for a harmless one ; in Carter v. Towne, 98 Mass. 567, for an injury to a boy eight years of age, who was inexperienced in the use of it, by the explosion of gunpowder, which the defendant sold him ; and in Wellington v. Downer Kero. sene Oil Co., 104 Mass. 64, for knowingly selling naphtha to the plaintiff, who was ignorant of its explosive qualities, to be used in a lamp, and from the explosion of which he was injured ; and in George v. Skivington, L. R., 5 Exch. i, against a chemist for injuries sustained by the plaintifFs wife, by the use of a hair wash made by the defendant, and the ingredients of which were known only to himself, and which he knew was to be used by her upon her hair. Thus, it will be seen, that ia Sec. I.] FRAUDULENT MISREPRESENTATION. 449 borough's dictum [x) 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 negli- gence as shipper, as by shipping without communicating danger, which he had the means of knowing, and ought to have communicated." {y) 1207. Fraudulent sales with 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 protect the vendor from an action for de- ceit, if he has resorted to any artifice to conceal a defect, or has made use of any false representation for the purpose oi lulHng to sleep the vigilance of the purchaser. 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 pre- {x) Williams v. East. Ind. Co., 3 East, Gibbon v. Paynton, 4 Burr. 2298. Batson 192. V. Donovan, 4 B. & Aid. 33, 37. (jc) Brass v. Maitland, 6 Ell. & Bl. 486. the case of the sale of articles dangerous in their character, when the vendor is aware of their dangerous qualities, or ought to be aware of them, an absolute duty is im- posed upon him which he can not shirk or evade, to see to it that through no fault of his, injury ensues to another. In the case of Boston & Albany R. R. Co. v. Shanley et al., ante, the defendants were held liable under the following circumstances : The Shanleys were doing business in North Adams, Mass., and ordered from one of the other defendants, ten cases of dualin — a highly explosive compound — and from one of the other defend- ants a quantity of exploders, used in exploding dualin. The plaintiffs, as common carriers, received both of these articles without knowing their nature, and neither the shipper of the dualin, or of the exploders, knew that the two articles were ordered, or that they were to be shipped together, but the plaintiff, not knowing that they were dangerous, or having any knowledge of their nature, or that there was any danger from combining the two, received them, and while being carefully transported over their line, they exploded, injuring the property of the carrier, and the property of others being transported by it. It was held that the shippers of the articles were liable, but that the consignee of the articles could not be held charge- able, as no duty had been violated by him, as he was not called upon to make any disclosures to the carrier. See, also, Barney v. Bumstinbinder, 64 Barb. (N. Y.) 612, where nitro-glycerine was shipped without notice of its character, and having sprung a leak, was taken to a warehouse at San Francisco for examination, and while being opened, exploded, damaging the warehouse and freight therein ; it was leld that the shipper was liable, even though the immediate cause of the explosion ' . ss the opening of the package. II.— 29 *5o THE LA W OF TORTS. [Ch. XVIII. vent purchasers from discovering certain defects in the ves- sel, and had also knowingly made a false representation of her condition at the time of the sale, it was held by Mans- field, 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, {z) And where the vendor of a vessel which was to be taken with all faults, rep- resented the vessel in his handbills and advertisements of the sale to have been built in 1816, whereas she had been launched the year before, and the difference of time materially affected her value, it was held that the purchaser was entitled to re- cover damages for the deceit, notwithstanding the stipula- tion that the vessel was to be taken with all faults. " The vendor," observe^ Abbot, 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 meaijing of selling with all faults," observes Heatu, 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." {b) ' A stipulation that the thing sold is to be taken with all faults, and without allowance for any defect, error, or mis- description, will protect the vendor from all unintentional mistakes, mis-statements, and misdescription, (e) but not from the consequences of any willful deception. {e) Schneider v. Heath, 3 Campb, 507. (6) Pickering v. Dowson, 4 Tajint. («) F'leteher v. Bowsher, 2 Stark. 565. 7S4. Pagjehole Jr. Walters, 3 Campb. 154. (c) Taylor v. Buller, 5 Exch. 779; 20 Law J., Exch. 21. ' The rule is that where a person designedly produces a false impression, in order to mislead or .eotrap another, or to obtain an undue advantage over him, in every such cast there is a fraud. Howard v. Gould, 28 Vt. 524 ; Peter v. Wright, 6 Ipd. 183 ; Chester y. Pkckenson, 52 Barb. (N. Y.) 349 ; Turner v. Johnson, 2 Cr. C .>(IJ.S.)i87. Sec. II.] ACTIONS FOR FRAUD. 451 SECTION II. OF ACTIONS FOR FRAUD AND DECEIT, AND THE REMEDY BY INJUNCTION. 1208. Actions for deceit — Parties to be 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 com- pensation ; 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 believ- ing it to be true, used the gun, and was injured by its burst- ing 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 represen- tation was either directly or indirectly communicated, and for whose use he knew the gun was purchased." {e) And where the defendant, in the course of a negotiation for the sale of a public-hduse, made a false and fraudulent represen- tation to one Bourner as to the receipts of the house, and thereby induced Bourner to 'agree to buy it, and Boumer being unable to complete the purchase, got the plaintiff to take his contract off his hands by repeating to him the false (rf) See anle. Rail. Co., 8 Ell. & Bl. 1052 ; 27 Law J. {e) Langridge v. Levy, 2 M. & W. 532 ; Q. B. 167. Farrant v. Barnes, ante. 4 Td. 337. Blakemore v. Brist. and Ex. 4S2 THE LAW OF TORTS. [Ch. XVIII. representatation 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 re- presentation 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. " The defendant," observes Bosanquet, J., " knowing that the fraudulent representation he had made to Bourner had been communicated 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 guilty of a deceit on the plaintiff as if he had in terms repeated the statement himself" (/) So, ir'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 individ- ual, the wife, joining her husband for conformity, or that in dividual, 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 aii action for deceit. (^) 1209. Parties to be made defendants — Principal and agent. — If a fraudulent act hag 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. iji) But if he repudiates the transaction as soon as he become acquainted with the fraud, and shuns all participation therein, he will not be re- sponsible 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 em- ployed a factor to sell silk for him, and the factor fraudulently (/) Pilmore v. Hood, 5 B. N. C. 109. (Ji) Wright v. Crookes, I Sc. N. R. (^) Longmeid v. Holliday, 6 Exch. 685. 766. See George v. Skivington, L. R., 5 (i) Grant v. Norway, 10 C. B. 68^ Exch. I. Comfoot v. Fowke, 6 M. & W. 369. Sec. II.] ACTIONS FOR FRAUD. 453 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 answerable 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 stran- ger." {k) " The principal and his agent are for this purpose completely identified." (/) The representation, if fraudulently made by the agent, within the scope of his authority, will bind the principal equally as if made by the principal, {tn) A servant or agent of a horse-dealer employed to sell a horse and receive the price, has an implied authority to war- rant the horse ; («) 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. {0) But a servant of a private owner, employed on a particular occasion to sell a horse, has no such implied authority ; (/> ) a fortiori, therefore a servant, who is merely employed to deliver the animal to a purchaser, has not. {q) If a broker who is authorized 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 bill, his employers are bound by the warranty, {s) 1210. Joint-stock companies. — The shareholders of a joint- stock company can not be made individually responsible in damages in an action for deceit, for adopting and authoriz- ing the publication of a false and fraudulent report respect- ing the pecuniary state and condition of the company, unless it be proved that the report has been signed by them, and was false to their knowledge at the time they attached their {k) Hern v. Nicholls, I Salk. 289. {o) Howard v. Sheward, L. R., 2 C. P. (/) Ld. Denman, C. J., Fuller v. Wil- 14S. son, 3 Q. B. 67. (/ ) Brady v. Todd, 9 C. B., N. S. 592 ; (/«) Wilson V. Fuller, 3 Q. B. loio. 30 Law J., C. P, 223. Tayiir v. Green, 8 C. & P. 319. See (?) Woodin v. Burford, 2 Cr. & M. Proudfoot V. Montefiore, L. R., 2 Q. B. 392. 511. (r) Rinquist v. Ditchell, 2Campb. 556 (k) Alexander v. Gibson, 2 Campb. n. 555. (j) Fenn v. Harrison, 4 T. R. 17/, 454 THE LAW OF TORTS. [Ch. XVIII. signatures to it ; (^ ) but the company itself may be made re- sponsible for fraud through the medium of acts done by the managers and shareholders in the management of its con- cerns. If, with a view to raise the marketable value of the shares of a tottering and insolvent company, a report fraudu- lently 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 pro- mulgated and published 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 re- ceive and act upon the report to their detriment, to be a rep- resentation 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 com- pany, might make representations, be they ever so false and ever so fraudulent, and yet, nevertheless, the company may benefit by those misrepresentations, without being at all lia- ble to be told, That is your fraud." {li) But the representation in these cases must be within the scope and authority of the person making it ; for where a representation on behalf of a public company was made by the mere law agent or solicitor of the company, who was acting ultra vires when he made the representation, the com- pany was held not to be bound by his act. {x) 121 1. Of declarations for deceit. — It is not necessary, in a declaration for a deceitful representation, to set out the repre- sentation in the precise words in which it was made. It is enough to state the substance and effect of it. (jc) This is the case with declarations for the assertion of a false claim of lien by the defendant upon the plaintiff's goods ; {i) a false assump- tion of authority to accept bills by procuration ; («) a false as- sumption of title to goods ; (b) false representations by railway companies as to the time of the starting of their trains ; {c) by (t) Barry v. Croskey, 2 Johns. & H. (y) Gutsole v. Mathers, I M. & W. 27. 503- (k) Glasgow Natl. Exchange Co. v. («) Green v. Button, 2 C. M. & R. ^o■^. Drew, 2 Macq. 124. See, however. West. (a) Polhill v. Walter, 3 B. & Ad. 114. Bank of Scotland v. Addle, ante. {b) Dyster v. Battye, 3 B. & Aid. 448. {x) Burnes v. Pennell, 2 H. L. C. 497. {c) Dentan v. Gt. North. Rail, Co., 5 cited 2 Macq. So. A. 125. Ell. & Bl. 860 ; 25 Law J., Q. B. 129. Sec. II.] ACTIONS FOR FRAUD. 455 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 financial con- dition 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 circum- stances of third parties ; {h) or of a firm or company of which the party making the representation is a member; (?) 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; (/) and false assumption of agency and of authority to order goods on behalf of a named principal. 1212. Declarations for a breach 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." {in) 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 in- duced by a warranty. («) 12 13. Declaration by an agent against a principal for a fake representation. — Where a declaration stated that the defendant, being possessed 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 ((/) Gerhard v. Bates, 2 Ell. & Bl. rity, see Randell v. Trimen, l8 C. B 479- 786. (e) Pontifex j. Bignold, 3 Sc. N. R. (/) Morison v. Salmon, 2 Sc. N. R. 390. 449. Crawshay v. Thompson, 4 M. & (yi P.awl'.ngs V. Bell, r C. B. 951. Or. 357 ; 5 Sc. N. R. 562. Rodgers v. {g) Barley /. Walford, 9 Q. B. igg. Nowill, 5 C. B. 109. Blofeld v. Payne, \h) Corbett v. Brown, 8 Bing. 33. Tat- 4 B. & Ad. 410. .Sykes v. Sykes, 3 B. & ton V. Wade, 18 C. B. 371. Swann v. C. 541. Phillips, 8 Ad & E. 457. (ot) 15 & 16 Vict. c. 76, Sched. B. (j) Devaux v. Steinkeller, 8 Sc. 202. (») Roscorla v. Thomas, 3 Q. B. 236. \k) Pewtriss v. Austen, 6 Taunt. 522. Holt, C. J., Lysney v. Selby, 2 Ld. Raym, As to declarations against persons who II20. have contracted as agents without autho- 456 THE LAW OF TORTS. [Ch. XVIII. over tlie purchase-money to the defendant, whereas the de- fendant was not entitled to sell the cattle, and afterwards the true owner brought an action against the plaintiff, and recov- evered ^^1,100 damages and £% costs, which the plaintiff was obliged to pay, together with ;^300, his own costs of defend- ing the action, whereupon the plaintiff requested the defend- ant to pay him the amount of the said damages and costs, but the defendant refused, it was held that the declaration dis- closed a good cause of action. (0) 1214. Declarations for fraudulently inducing an architect to withhold his certificate of the completion of certain work, and thereb}?^ preventing the plaintiff from recovering his stip- ulated remuneration, should set forth that the plaintiff had done all things necessary to entitle him to the certificate, and that he had completed the work to the satisfaction of the architect, and that the architect with full knowledge thereof fraudulently neglected to certify in collusion with and by the procurement of the defendant. (/) 1215. 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 representa- tien, 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 misrepre- sentation, {g) 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, {f) Where the scienter is the gist of the action, it is put in issue by the plea of not guilty, {i) Under the plea of not guilty, the defendant may show that (0) Adamson v. Jarvis, 4 Bing, 69 ; 12 (^) Mummeiy v. Paul, i C. B. 326. Moore, 241. (r) Brink v. Winguard, 2 C. & K. 657: (/*) Batterbury v. Vyse, 2 H. & C.42 ; \s) Thomas v. Morgan, 2 C. M, & R/ 32 Law J., Exch. 177. ^ 498. Sec. II.] ACTIONS FOR FRAUD. 457 the representation is within the 9 Geo. 4, c. 14, s. 6, and that it was not made by writing signed by the defendant, (t) 1216. Proof of fraudulent 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, or that he pretended to a knowledge which he must have known that he did not possess at the time he made the representation, 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. 1217. Proof of the representation having been made to the plaintiff. — -Public announcements and representations issued by the authority and under the direction of the directors or managers of public companies, and intended by them for gen- eral circulation in share- markets, and amongst purchasers of shares, are deemed in contemplation 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 prospectus, published by the defend- ants, and sold or distributed by them, for the purpose of in- fluencing the sale of shares and being perused by persons desirous of buying shares, and that the plaintiff perused it, and was induced by the statements and representations con- tained in it to buy shares, {y) 1218. Proof that the plaintiff relied upon the representation , and not upon his own examination and judgment. — " Cases frequently occur in which, upon entering into contracts, mis- [t) Turnley v. McGregor, 6 M. & Gr. {x) Taylor v. Ashton, ii M. & W. 46- 415. (») Thorn V. Bigland, 8 Exch. 731. {y\ Scott v. Dixon, 29 Law J., Exch CSUders v. Wooler, 2 Ell. & Ell. 287. 62, n. Bedford v. Bagshaw, Id. 64. 458 THE LAW OF TORTS. [Ch. XVIII. representations 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 contract, it may appear that he relied upon the result of his own investi- gation and inquiry, and not upon the representations made by the other party ; or if the means of investigation and verifica- tion be at hand, and the attention of the party receiving the representations be drawn to them, the circumstances of the case may be such as to render it incumbent upon a court of justice to impute to him a knowledge of the result which, upon due inquiry, he ought to have obtained, and thus the notion of reliance upon the representations made to him may be excluded. Again, when we are endeavoring to ascertain what reliance was placed on representations, we must con- sider 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, pos- sessed of accurate knowledge, and the other is entirely igno- rant, and a contract is entered into after representations 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, 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 re- lied 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 (z) The Master of the Rolls, Clapham (a) Shrewsbury v. Blount, 2 Sc. N. R. V, Shillitj, 7 Beav. 149. 594. Holt, C.J., Lysney v. Selby, 2 Ld, Raym. 1120. Sec. II.] ACTIONS FOR FRAUD. 459 by the acceptance, the plaintiff must prove that he has sus- tained some actual pecuniary damage from the false represen- tation. The mere fact of the bill coming into the plaintiff's hands does not per se import damage, as the plaintiff may have received the bill without having given any considera- tion for it. {b) 1219. Proof of warranties. — Although a warranty made orally on the completion of a written contract can not be in- troduced 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 deceit : {d) for wherever a written contract or undertaking has been pro- cured through the medium of falsehood and fraud, the fact may be proved by oral testimony, notwithstanding the exis- tence 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 evi- dence to prove fraud, if it is used merely for the purpose'of showing that a person paying money has been imposed upon. (/) 1220. Proof of the terms and conditions of warranty by •broof of public notices stuck up in an auction-room or repository where the thing warranted was sold. — If 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 conspicious 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 war- ranty of soundness shall remain in force for a given period only, unless in the meantime a certificate of unsoundness is (i) Eastwood V. Bain, 3 H. & N. 738 ; son v. Morley, 7 Se. 341. Canhain v. 28 Law J., Exch. 74 ; 7 W. R. 90. Barry, 15 C. B. 597 ; 24 Law J., C. P. {f) Addison on Contracts, 6th ed., pp. 100. 19, 220. {e) Davis v. Symonds, I Cox, Eq. Ca. (d) Dobell V. Stevens, 3 B. & C. 623. 405. Meyer v. Everth, 4 Campb. 22. Wright (/) Holmes v. Sixsmilh, 7 Exch. 807, ». Crookes, i Sc. N. R. 685. Hutchin- 46o THE LA W OF TORTS. [Ch. XVIII. procured from a veterinary surgeon, the purchaser must comply with the stipulation, or lose his remedy upon the warranty, {g) 1221. Evidence of the breach of warranty of a horse — What constitutes unsoundness. — " The rule as to unsoundness," ob- serves Parke, B., " is, that if at the time of the sale the horse has anjr disease, or has undergone 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 nat- ural 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 propor- tionally so, and so also ought to be the damages." (Ji) Con- vexity of the cornea, rendering a horse short-sighted, and causing him to shy, is unsoundness. ( «') It is not enough for the plaintiff to give evidence inducing a suspicion that the horse was unsound at the time of the warranty. If he only throws the unsoundness into doubt he is not entitled to re- cover, {k') 1222. Proof of manifest defects not covered by the war- ranty. — If the defendant can prove that the defect complained of by the plaintiff was a manifest defect obvious to all ob' servers, 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. 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, i"endering the vendor liable in damages for a breach of war- (g) Bywater v. Richardson, I Ad. & 669. E. 508. Mesnard v. Aldridge, 3 Esp. {i) Holyday v. Morgan, 28 Law J., 871. Q. B. 9. (K) Kiddell v. Burnard, 9 M. & W. {k) Eaves v. Dixon, 2 Taunt. 343, Sec. II.] ACTIONS FOR FRAUD. 461 ranty. (/) 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 nat- ural 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 sound- ness subject to the patent defect ; but if the defect is not ob- vious, 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 present him from making a close examination of the animal. {0) 1223. Proof of vice. — If a horse has been warranted free from vice, and the horse is proved to be a crib-biter, the war- ranty is broken. " The habit of crib-biting," observes Parke, B., " may not indeed show vice in the temper of the animal, but as it is a habit decidedly injurious to its health, and tend- ing to impair its usefulness, it comes within the meaning of the term vice." (/) 1224. Proof ef the use of counterfeit trade-inarks. — In actions for damages for the fraudulent use by the defendant of the plaintiff's trade-mark, it is necessary 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. (^) It must be proved that the mark closely resembled the plaintiff's mark and that it was used by the defendant to (/) Alderson, J., Dickinson v. Follett, B. g. I M. & Rob. 300. (f) Scholefield v. Robb, 2 M. & Rol: (m) Brown v. Elkinton, 8 M. & W. 210. 132. {q) Wilde, C J., Rodgers v. Nowill, 5 («) Watson V. Denton, 7 C. & P. 85, C. B. 125. (0) Holyday v. Morgan, 28 Law J., Q. 462 THE LA W OF TORTS. [Ch. XVIII. enable him to pass off his own goods as being of the plain- tiff's make, {r) 1225. Remedies 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 represen- tation is no party to the contract, the Court of Chancery will compel the latter to make good his assertion as far as possi- ble. The principle of equity, that where a person by mis- representation draws another into a contract, such person shall be compelled, if possible, to make good the representa- tion, 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 nega- tives the representation, (s) The principle is this that a rep- resentation made by one party for the purpose of influencing the conduct of another, and acted on by him, will in general be sufficient to entitle him to the assistance of a Court of Equity for the purpose of realizing such representation. (/) And it seems that in many cases of false and fraudulent rep- resentation, the remedy by action at common law for dam- ages, and by bill in equity, is concurrent {u) 1226. Of the damages recoverable in actions for fraudulent misrepresentation and deceit. — ^Damages 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, and the plain- tiff has acted upon it, and been damnified ; for " wherever a man wickedly asserts that which he knows to be false, and thereby draws his neighbor 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 misrepresenta- tion." {x) Damages also are recoverable, as we have seen, from persons who represent that to be true within their own if) Crawshay v. Thompson, 4 M. & Simpson, L. R., 9 Eq. Ca. 506. Gr. 387 ; ; Sc. N. R. 562. Morison v. («) Rarashire v. Boulton, L. R., 8 Eq. Salmon, 2 Sc. N. R. 452. See Seixo v. Ca. 294 ; 38 Law J., Ch. 594. Leather Provezende, /tfrf. v. Simpson, L. R., 11 Eq. Ca. 398. (s) Pulsford V. Richards, 17 Beav. 94. [x) Pasley v. Freeman, 3 T, R. 65 (/) Per Stuart, V.-C, Thomson v. See ante. Sec. II.] ACTIONS FOR FRAUD. 463 knowledge which they do not know to be true, and so in- duce others to act upon the faith of the representation, and sustain damage, more particularly in those cases where the m6ans of knowing the truth of the matter rest peculiarly or' exclusively with the person making the representation. 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 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, (j/) 1227. Special damages — Breach of warranty. — If special damages have been sustained by reason of the misrepresen- tation 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 unsound and broke, and the purchaser lost his 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. {£) 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 plain- tiff's acting on the faith of the representation or warranty. If there are special circumstances rendering the misrepresen- tation or deceit peculiarly injurious to the plaintiff, the de- fendant will not in general be responsible for the increased damages resulting therefrom, unless the special circumstances were known to him at the time of the making of the repre- sentation, (a) However, there is a distinction, it seems, between an action on a breach of warranty and one for frau- dulent misrepresentation; for damage which may be the necessary or probable result of a false representation would (J') Collen V. Wright, 7 EU. & Bl. coverable for breach of warranty, see 314. Randell v. Trimen, l8 C. B. 786 ; Addison on Contracts, 6th ed., pp. 1075, 25 Law T-, C. P. 307. Simons v. Pat- 1077. Ghett, 7 EU. & Bl. 568 ; 26 Law J., Q. B. (a) Hadley v. Baxendale, 9 Exch. 841 ; 195. 13 Law J., Exch. 179. Portman v \z) Borradaile v. Brunton, 2 Moore, Middleton, 4 C. B., N. S. 322 ; post, cb 582 ; 8 Taunt. 535. As to damages re- 22, s. I, 464 THE LAW OF TORTS. [Cii. XVIII. not necessarily be within the contemplation of the parties on a warranty, {b) 1228. Special damages — False assumption of agency. — Where the defendant, a land-agent, professed that he had, and sup-j posed 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 defendant had the authority he pretended to have, entered upon the land, and bought and paid for the straw and manure, and expended considerable sums in pre- paring the land for cultivation, and the landlord then refused to grant the lease on the ground that the defendant was not authorized to let the land on the terms of the agreement, and the plaintiff, relying on the representation of 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 withdraw his assertion of authority, but said he would resist any demand the plaintiff might have against him, and the suit went 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 prepar- ing the land for cultivatien. (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 re-sold his interest in the lease to a third party without notice to the defendant, such damages not necessarily or naturally result- ing from the wrongful act of the defendant, but from the fact that the plaintiff had chosen to re-sell his interest, {d) So {b) Mullett V. Mason, L. R., I C. P. See Hughes v. Grasme, 33 Law J., Q. B. 559. 335. (c) Colien V. Wright, 8 Ell. & Bl. 647 ; {d) Spedding v. Nevell, L. R., 4 C. P ^5 Law J., Q. B. 147 ; 27 lb. Exch. 217. 212. Sec. II.] ACTIONS FOR FRAUD. 465 where the defendant, a joint-owner of an estate, contracted, without authority from his co-owners, to sell it to the plain- tiff, and on their failure to complete the sale the plaintiff 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 contemplation of the par- ties at the time of the sale, {e) 1229. Prevention of fraud. by indictment. (/") — All deceitful practices for defrauding, or endeavoring to defraud, another of his just rights by means of some artful device, or fraudulent contrivance, are punishable as misdemeanors 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 dif- ferent from those in which it was written ; also for persuad- ing a woman to execute writings on her marriage as being a settlement of her property upon her, but which constituted an acknowledgment of a debt with a warrant of attorney to enter up judgment. (^) Where a man went about the coun- try 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 pur- chasers by palming off upon them a spurious article as the true one, it was held that he was indictable for a misde- meanor. (^) 1230. Indictments for obtaining, or endeavoring to obtain, money or goods by false pretenses. — Shopkeepers also have been in- dicted and convicted for obtaining, or endeavoring to obtain, money from their customers by false pretenses, by preparing and selling spurious articles fraudulently represented by them to.be genuine, in order that by means of the counterfeit (e) Godwin v. Francis, L. R., 5 C. P. meanor. See ss. 2, 3, 12, 13. 2g5. (^) Hawkins' Pleas of the Crowij, ch. (/) By the Merchandise Marks Act, 71. , 1862, 55 & 26 Vict. t. 88, the fraudulent (h) Reg. v. Dundas, f Cox Cr. C. use of trade marks is made a misde- 380. II.— 30 466 THE LAW OF TORTS. [Ch. XVIII. 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 cele- brated manufacturer, and sold them, and received the money for them as such ; (?) where a shopkeeper obtained the price of silver for base metal, by knowingly and fraudulently repre- senting an article of base metal sold by him to be silver ; {k) where dealers in wares and merchandise knowingly and frau- dulently misrepresented 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. (/) 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 offense, as where the vendor of spoons represented that they were " equal to Elk- jngton's A." {m) But where the vendor of a gold chain falsely represented that it was 1 5-carat gold, when it was in reality only 6-carat gold, and the vendor knew it, his convic- tion was affirmed, {n) Various statutes have been passed for the repression of fraud, and the punishment of persons who obtain money, goods, or securities under false pretenses ; {0) but " these statutes," observes Pollock, C. B., "were never, in mj 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 really and wholly a designed piece of swindling." {p) To constitute an obtaining within the statute, it is necessary that there should be an in- tention wholly to deprive the owner of his property in tbe ' {i) Reg. V. Smith, 26 Law J., M. C. {m) Reg. v. Bryan, Dears & B., C. C 105. 265. {k) Reg. V. Roebuck, 25 Law J., M. C. (») Reg v. Ardley, L. R., 1 C. C. R. (()!) Reg. V.Sherwood, 26 Law J., M.C. ( The doctrine of the canon law, that, where husband and wife have both been guilty of adultery, there is compensatio criminum, and both are restored to the position of innocent parties, forms no part of the law of England. A suit, there- fore, for the restitution of conjugal rights can not be main- tained by a wife who has committed adultery, although the husband also has committed adultery. (0) A suspension of the cohabitation must be clearly proved, in order to warrant the interference of the court. (/) 1237. Of judicial separation on the ground of adultery, cruelty, or desertion. — By the 20 & 21 Vict. c. 85, s. 7, divorce a mensa et thoro is abolished, and in lieu thereof the Court for Divorce and Matrimonial Causes is authorized to pro- nounce 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 deser- tion 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, {t) If, after the decree for judicial separation on the ground of cruelty, and while they are living apart, the husband commits adultery, the wife will be entitled to a dissolution of the marriage, {u) The wife is entitled, in the discretion of the court, to ali- ('«) Alexander v. Alexander, 30 Law Prob. & Matr. iS. J., Prob. & Matr. 173. (r) 20 & 21 Vict. c. 85, s. 23. Phillips (») Spering v. Spering, 3 Sw. & Tr. v. Phillips, L. R., i Prob. & Div. 169 211 ; 32 Law J., Prob. & Matr. 116. See (s) Williams v. Williams, L. R., i. Anquez V. Anquez, L. R., I Prob. & Div. Prob, & Div. 17S. hee Williams v. 177- Baily, infra. {0) Hope v. Hope, 27 Law J., Prob. & (t) Williams v. Baily, infra. See Matr. 43. Brown v. Brown, L. R., 7 Eq. Ca. 185. (p) Orme v. Orme, 2 Add. 384. (a) Bland v. Bland, L. R., i Prob. & (?) Brookes v. Brookes, 28 Law J., Div. 237. 48o THE LAW OF TORTS. [Ch. XIX. mony 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 aUmony is by the practice of the court payable to her personally, but if j she chooses to pay it into her attorney's hands, his lien upon it for his costs will attach, {x) 1238. What amounts to cruelty. — If a husband refuses his wife the common necessaries of life, or treats her with gross msult and indignity ; if he spits in her face, attempts to de- bauch her maid-servants, (^) or puts her unnecessarily into confinement, or under personal restraint ; or strikes her, or threatens her with personal violence unjustifiably, and with- out adequate provocation, {z) and conducts himself so as to give her a reasonable apprehension of bodily harm if she con- tinues to reside with him, he is guilty of cruelty, and entitles her to separation of bed and board, {a) 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 vitu- peration, and charges of gross offenses, made in the presence of the wife and before her friends, servants, or strangers, and such injurious treatment as renders life unbearable, consti- tute good grounds for a separation, but mere turbulence of temper and petulance of manners are not sufficient. The as- sistance of the court, morever, will not be afforded to a wife who has taken upon herself to avenge her own wrongs, and to maintain a contest of retaliation, {b) In order to establish the charge of cruelty, it is necessary to prove actual violence (v) Thompson v. Thompson, L. R., I (_j/) Saunders v. Saunders, I Rob. Prob. & Div. 553. Jones v. Jones, L. R., Eccl. 549. 2 Prob. & Div. 333. {z) Waring v. Waring, 2 Phill. 132. (w) Whitmore v. Whitmore, L. R., I {a) Gregory's case, 4 Burr. iggi. Leete Prob. & Div. 96. See Coombs v. Coombs, v. Leete, 31 Law J., Prob. & Matr. 121. ib. 218. As to an injunction against the Waddell v. Waddell, ib. 123. payment of alimony pendente lite., see (i5) Holden v. Holden, i Haggs. Cons. Williams v. Baily, L. R., 2 Eq. Ca. 731. 458. Evans v. Evans, ib. 119. Olivet (x) Ex parte Bremner, L. R., I Prob. v. Oliver, ib. 364. Paterson v. Paterson, & Div. 254. 3 H. L. C. 328. Curtis v. Curtis, 27 Law J., Prob. & Matr. 75. Sec. I.V MATRIMONIAL RIGHTS. 481 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 (or 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 in- jure her health and render a serious illness imminent, amounts to legal cruelty, {d) ' (c) Milford v. Milford, L. R., I Prob. {d) Kelly v. Kelly, L. R., 2 Prob. & & Div. 295. Matr. 31 ; ib. 59. ' In some of the states, although not in all, intolerable severity or cruelty on the part of the husband towards the wife, or of the wife towards the husband, is a ground for an absolute divorce, and no good reason can be alleged why, if a divorce should be granted for any cause, it should not for this. To compel parties to live in marital relations to each other, subjected to brutal treatment which robs life of all its comfort, is of doubtful policy, to say the least. As to what constitutes cru- elty, or intolerable severity, within the meaning of the term as used in the statutes, it may be said that it is not necessary that actual personal violence should be used , it is enough that such conduct is shown as shocks the moral sensibilities and shows a brutal or depraved disposition on the part of either the husband or wife, and ren- ders it unsafe or improper for them to live together. Thus it has been held that groundless charges of adultery made against the wife are acts of gross cruelty, and sufficient to warrant the granting of a divorce on the ground of cruelty. Sheffield v Sheffield, 14 Tex. 356 ; Johnson v. Johnson, 4 Wis. 135 ; Hooper v. Hooper, 19 Mo. 355. Actual violence need not be shown, although when it is shown it furnishes a full cause, if it is of such a character as endangers the life or health of either, and renders cohabitation unsafe. Gracen v. Gracen, 2 N. J. 459; Odaur v. Odaur, 36 Ga. 3S6; Whispell v. Whispell, 4 Barb. (N. Y.) 217 ; King v. King, 28 Ala., 315. But where the ground of divorce is predicated upon acts of personal violence alone, the evidence must show that the violence was intentionally inflicted, and that it was of such a character as to endanger the life, limbs, or health of the libellant, or as to raise reasonable apprehension of such danger. Ford v. Ford, 104 Mass. 198. And habitual drunkenness, under some circumstances, has been held sufficient. Dunlap V. Dunlap, Wright (Ohio), 557. Thus, in Doan v. Doan, 3 Penn. L. J. Rep. 17, it was held that frequent intoxication on the part of the husband, and the habitual use of profane, abusive, and insulting language towards the wife, of which she vv'as kept in constant fear and terror, and neglecting to provide for her, and assaulting her without provocation, although only for once, is such indignity offered to her person as entitles her to n. divorce. But in order to be a ground of divorce, the alleged cruelty must be habitual rather than occasional, and a divorce is never granted for a single act of cruelty, however harsh, rude, vulgar or coarse. Bennett v. Bennett, 24 Mich. 482 ; Richards v. Richards, 37 Penn. St. 225 ; Cook v. Cook, 1 1 N. J. 195 ; Finley v. Finley, 9 Dana (Ky.) 52 ; Hill v. Hill, 2 Mass. 150; Vignas v. Vignas, 15 111. 186; Sheffield v. Sheffield, ante; Freeman v. Freeman, 31 Wis. 335 ; Boyce v. Boyce, 23 N. J. Eq. 337 ; Harmon v. Harmon, 16 111. 85. Neither will a divorce be granted upon the ground of cruelty when the petitioner provoked the acts com- II.— ^ I 482 THE LA W OF TORTS. [Ch. XIX. 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 can- not be legally separated upon the disinclination of one or botn 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 him- self; 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 drunken fits to destroy property, but there is no evidence of such sasvitia as would justify me in decreeing a judicial separation." {g) And, conversely, it has been held, that habitual drunkenness on the part of the husband, although united with much annoy- ance and extraordinary conduct, does not amount to legal cruelty, {h) But the communication to the wife of venereal disease does, if willful, and the wilfullness is to be presumed in the absence of evidence to the contrary, {i) 1239. 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 hus- band's household and the condition is broken by the hus- band, the cruelty is revived, and the wife entitled to a judi- cial separation. (/) Where there have been acts of violence (e) Bostock V. Bostock, 27 Law J., (i) S. C, and Boardman T. Boardman, Prob. & Matr, 87. L. R., I Prob. & Div. 233. See Mor- (/) Pearman v. Pearman, 29 ib. 54. phett v. Morphett, 38 Law J., Prob. & (g) Scott V. Scott, 29 Law J., Prob. & Matr. 23 ; L. R., i Prob. & Div. 702. Matr. 64. {j) Cooke v. Cooke, 32 L. J., P. & M. (h) Brown v. Brown, L. R., i Prob. & 81, 154. Div. 46. plained of, and it is always competent to show the conduct of the petitioner as well as of the petitionee. Von Glahn v. Von Glahn, 46 111. 134 ; Johnson v. J«hnson, 14 Cal. 447 ; Davies v. Davies, 37 How. Pr. (N. Y.) 45 ; Mayhugh v. Mayhugh, 7 & Mon. (Ky.) 424; Knight v. Knight, 31 Iowa, 457. Sec. I.] MATRIMONIAL RIGHTS. 483 followed by condonation, threats subsequently uttered of such a nature, and so expressed, as to satisfy the court that further cohabitation would be attended Avith danger to the party threatened, constitute a sufficient ground for a decree for a judicial separation, (k) The doctrine of revival, how- ever, does not apply to the compromise of a divorce suit, for where a suit is in derogation of the marriage contract, the court will favor an arrangement that prevents the scandal of a public investigation. (/) ' 1240. What amounts to desertioii without cause. — Desertion does not necessarily commence when cohabitation ceases, (w?) A husband who absents himself from his wife for the bona fide purpose of obtaining employment, and continues absent with the concurrence of his wife, or without any communica- tion to him of her disapproval of his absence, or any mani- festation of a desire on her part for his return to her, can not be said to have deserted her 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 nusband, it must be shown that he has willfully absented himself without cause from the society of his wife, and in spite of her wish, she not being a consenting party. " (;«) A voluntary cesser of cohabitation, therefore, upon the ex- ecution of a deed of separation, or the execution of such a deed subsequently to the cesser of cohabitation, is an answer to the charge of desertion, unless it be shown that the hus- band had fraudulently, by a pretense of an agreement which he never intended to fulfill, induced her to consent to such separation. {0) The " cause " mentioned, although not neces- sarily a distinct matrimonial offense on which a decree of {k) Bostock V. Bostock, 27 ib. 88. J., Prob. & Matr. 68. Haviland v. Havi- (/) Rowley V. Rowlev, L. R., I Sc. & land, 32 Id. 65. Div. App. 63. ' (p) Crabb v. Crabb, L. R., I Prob. & (w:) Gatehouse v. Gatehouse, L. R., i Div. 601. Parkinson v. Parkinson, L. R., Prob. & Div. 331. See ante. 2 Prob. & Matr. 25. {>2) Thompson v. Thompson, 27 Law ' Condonation is always conditional, consequently, where a reconciliation is had after the perpetration of acts of cruelty sufficient to entitle one to a divorce, and after such reconciliation, further acts of cruelty are perpetrated, this revives the ormer cruelty, and renders proof of it admissible, and it may operate as a cause for divorce. Burr v. Burr, 10 Paige (N. Y.), 20 ; Hughes v. Hughes, 19 Ala. 307 Phillips V. Phillips, 27 Wis. 282 ; Sullivan v. Sullivan, 34 Ind. 368. 484 THE LAW OF TORTS. [Ch. XIX. 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. (/) Desertion under this section means that the husband has withdrawn ii om cohabitation, even although he has not left his wife unprovided for; {g) and such desertion must have continued for two years at the time of the making of the peti- tion for a judicial separation, so that a bona fide 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 separation, {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 bona fide one. {t) Nor will the payment of an al- lowance 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 wife, or even by the mutual consent of both, desertion becomes from that moment impossible to either, till their common life and home have been re-, sumed. {v) 1241. Rights of married women after a decree for a judi- cial separation. — After a decree for a judicial separation, the wife has the legal status of a feme sole in respect of wrongs and injuries, and suing and being sued in any civil proceed- ing, 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) (p) Yeatman v. Yeatman, infra. 251. And see Keech v. Keech, 38 Law Iq) Yeatman v. Yeatman, L. R., I Prob. J., Prob. & Matr. 7. Parkinson v. Par- & Div. 489. kinson, L. R., 2 Prob. & Matr. 27. (r) Car^ill v. Cargill, 27 Law J., Prob. {v) Fitzgerald v. Fitzgerald, 38 Law J., & Matr. 69. Prob. & Matr. 14; L. R., I Prob. & Matr. (s) Cudlipp V. Cudlipp, Id. 64. 694. See Buckmaster v. Buckmaster, L. (/) Mallinson v. Mallinson, L. R., I R., I Prob. & Matr. 713 ; 38 L. J., Prob. Prob. & Div. 93. & Matr. 73. («) Nott V. Nott, I,. R., I Prob. & Div. {w) See Re Insole, L. R., i Eq.Ca.471 Sec. I.] MATRIMONIAL RIGHTS. 485 1242. 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 accordance with her husband's income {x) and her own earnings, where she is supporting herself, (7) and may (s. 24) direct the same to be paid either to the wife her- self, 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 will (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, {b) 1243. Of adultery and the dissolution of the marriage con- tract. — Adulterjr was formerly an indictable, and for about ten years was de facto a capital, offense, being made so by a statute passed A. D. 1650. (c) This statute became a nullity at the Restoration, 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, enants, that a husband (^) may pe- tition the court for the dissolution of the marriage on the ground of adultery on the part of his wife, ( d') and the wife ( rf) may petition for 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 mensa et thoro, (/) or of adultery coupled with desertion, (x) Hooper V. Hooper, 30 Law J., (if) These words have no application to Prob. & Matr. 49. See Haigh v. Haigh, the case of a union between two persons 38 Law J., Prob. & Matr. 37 ; L. R., I in any country where polygamy •= law- Prob. & Div. 694. ful, and the court here has no jurisdiction (j') Goodheim V. Goodheim, 3oLaw J., over such marniges, for the term mar- Prob. & Matr. 162. riage, as understood in Christendom, is (z) Franks v. Franks, 31 Law J., Prob. the voluntary union for life of one per- & Matr. 23. Avila v. Avila, Id. 176. son with another, to the exclusion of all Fletcher v. Fletcher, Id. 83. others. Hyde v. Hyde, L. R., i Prob. (a) Clinton v. Clinton, L. R., i Prob. & Div. 130. & Div. 215. [e) Home v. Home, 27 Law J., Probt {b) Louis V. Louis, L. R., i Prob. & & Matr. 50. Div. 230. See Williams v. Williams, Id. (/) Ante. Ward v. Ward, 27 Id. 63. 370. Milner v. Milner, 31 Id. 159. if) 2 Scobell's Acts, part 2, p. 121. 486 THE LAW OF TORTS. [Ch. XIX. without reasonable excuse, for two years or upwards. But if it appears to the court that the petitioner has been in any manner accessor)^ to, or conniving at, the adultery, {g) or has condoned it (s. 29), or that the petition is presented or prosecuted in collusion with either of the respondents, {h) the petition will (s. 30) be dismissed. And if in the opinion of the court the petitioner has been guilt)' of unreasonable delay in presenting or prosecuting the petition, or of cruelty towards the other party to the marriage, or of having de- serted or willfully separated from the other party to the marriage before the adultery complained of, and without reasonable excuse, (2) or of such willful neglect or miscon- duct as has conduced to the adultery, {k) it is competent to the court (s. 31) to refuse to dissolve the marriage. (/) The court, however, may, in the exercise of its discretion, dis- solve the marriage at the instance ot 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 will and desire of the petitioner, {in) Misconduct conducing to adultery is not mere carelessness, but a knowledge by the husband of an intimacy distinctly dangerous, and a pur- posed or reckless disregard of it. {n) ' {^) Walton V. Walton, 28 Id. 97. Id. 108. Haswell v. Haswell, 29 Id. 21. Studdy V. Studdy, Id. 105. Hughes v. Hughes, L. R., i Prob. & (A) See Todd v. Todd, L. R., I Prob. Div. 219. & Div. 121. Barnes v. Barnes, Id. 505. (/) Boreham v. Boreham, L. R., I Prob. (i) Coulthart v. Coulthart, 28 Law J., & Div. 77. Lempriere v. Lempriere, Id. Prob. & Matr. 21. Yeatman v. Yeat- 569. man, L. R., 2 Prob. & Div. 187. (m) Coleman v. Coleman, L. R., I (/J) Du Terraux v. Du Terraux, 28 Law Prob. & Div. 81. J., Prob. & Matr. 25. Cunnington v. (») Dering v. Dermg, L. R., I Prob. & Cunnington, Id. loi. Groves v. Groves, Div. 531. ' Adultery is a cause for divorce a vinculo in all the states where divorces are permitted at all. but the mere fact of adulteiy on the part of one party, does not always furnish a ground for a divorce, although fully proved. Ledoux v. Boyd, 10 La. Ann. 663; William- son V. Williamson, i Johns. Ch. (N. Y.) 488. Thus, where the husband had absented himself for five years, without being known to be alive by the wife, and she married another man, and cohabited with him, it was held that such cohabitation did no' constitute a sufficient cause for divorce on the ground of adultery. Valleau v. Valleau, 6 Paige (N. Y.), 207. Neither does adultery on the part of the husband or wife at , a time when they are insane, constitute a ground of divorce. Wray v. Wray, 19 Ala. 520. Nor where after knowledge of the adultery the parties continue to live together as husband and wife. Jones v. Jones, 18 N. J. 33. In such cases the offense is condoned. Backus v. Backus, 3 Me. l85 ; Johnson v. Johnson, i Edh. (N. \'.) 439 • Gardner v. Gardner, 2 Gray (Mass.), 434. But, adultery committed by the h .= and Sec. I.] MA TRIMONIAL RIGHTS. 487 A suit for dissolution of marriage can not be maintained against a lunatic on any ground whatever ; {0) and if, at the time of the service of the citation, the respondent is so men- tally deranged as to be unfit to answer the petition or to in- struct her attorney, the suit will be stayed till she recovers her mental capacity. (/) But the committee of a lunatic may maintain a suit for a judicial separation on the ground of the adultery of the wife of the lunatic, {q) And a suit for nullity of marriage may be maintained by a lunatic through a guar- dian appointed by the court, {r) 1244. Adultery and desertion on the part of the husband giv- ing the wife a right to a dissolution of the marriage, must, therefore, continue for two years or upwards without reason- able excuse. Where the husband on being reproached with his adulterous connection, declared he would go away and live with his paramour, and his wife said, " Go, 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 dissolution of the marriage, it was held that she had given no such assent or sanction to desertion as dis- entitled her to a decree, is) A wife is not deprived of her right under s. 27 to a divorce on the ground of adultery coupled with desertion, for two years and upwards, by a sub- sequent offer on the part of the husband to return and cohabit with her. if) 1245. Willful neglect or misconduct on the part of the hus- band conducing to adultery on the part of the wife. — The policy of the legislature seems to have been to deprive the husband {0) Bavvden v. Bawden, 31 Law J., Prob. & Matr. 197. Prob. & Matr. 94. See Mordaunt v. if) Hancock v. Peaty, L. R., i Prob. & Mordaunt, L. R., 2 Prob. & Matr. 382. Div. 335. (/>) Mordaunt v. Mordaunt, L. R., 2 (/) Haviland v. Haviland, 32 Law J., Prob. & Div. 109, diss Kelly, C. B. Prob. & Matr. 65. (y) Woodgate V. Naylor, 30 Law J., (/) Cargill v. Cargill, 27 Id. 69. lOr wife when sane, and when the offense has not been condoned, or the one has not been absent for the period of seven years, and not heard from, is a good ground of divorce. It is understood, of course, that the intercourse must be voluntary, for if it was accomplished by force, the wife can not be said to have committed adultery but is the victim of a rape, for which she is not responsible, Mehle v. Lapeyralhire^ 16 La. Ann. 4 ; Tewksbury v. Tewksbury, 5 Miss. 109. 488 THE LA W OF TORTS. [Ch. XIX. of a remedy by divorce if he has misconducted himself as a husband, and has contributed to his own dishonor, {u) not to punish neglect or misconduct unconnected with the relation of husband and wife. The neglect or misconduct of a 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 constitute misconduct m the husband disentitling him to a divorce, {u) So where an infant under age, who had con- tracted a clandestine marriage with a prostitute, was sent out of the country by his guardians and prevented from commu- nicating with his wife, and the wife relapsed into her old trade of prostitution, it was held that the involuntary deser- tion of the wife by the infant husband formed 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, separated himself from her against 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. {x) The neglect, however, intended by the legislature is neglect conducing to the wife's original fall, not neglect conducing to any particular ict of adultery committed subsequent to her fall, {y) 1246. Connivance or toleration of adultery on the part of the husband will deprive him of his nght to the dissolution of the marriage. If, therefore, a husband, finding that his wife has committed adultery, foregoes his claim to a divorce in consideration of a sum of money, not condoning the offense, but allowing her to remain his wife, and allowing his remedy to be barred by a verdict in favor of the respondent and co- respondent, he will 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 intercourse that («) Jeffreys V. Jeffreys, 33 LawJ.,Prob. {x) Baylis v. Baylis, L. R., I Prob. & & Matr. 84. Div. 395. {v) Cunnington v. Cunnington, 28 Id. (y) St. Paul v. St. Paul, L. R., i Prob, loi. & Matr. 439 ; 38 L. J., Prob. & Matr (tf) Beavan v. Beavan, 32 Id. 36. 57 Sec. L] ma TRIMONIAL RIGHTS. 4S9 has taken place, and sells his assent to the prostitution of his wife, and can not afterwards complain of that which he has himself sanctioned. A man consenting to adultery with A, but not consenting to adultery with B, can not make the adultery with B a ground for a dissolution of the marriage. He can not be heard to say non omnibus dormio, or non semper dormio. Such language and such conduct are not to 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 marriage 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 cer- tain transactions that he approved of, and consented to. (a) Mere negligence, mere inattention, mere dullness of appre- hension, mere indifference, will not suffice, tnere 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. iU) ' 1247. Connivance on the part of the wife. — An agreement to live separate would amount to connivance if it were made with knowledge of the adultery, committed 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) 1248. Condonation of adultery 15 forgisf&nQSS of the conjugal offense, with full knowledge of all the circumstances, {d) " Judges of great eminence have said, that there is a great (s) Gipps V. Gipps, 32 Law J., Prob. & {i) Allen v. Allen, 30 Id. 4. Marris v. Matr. 78. Lovering V. Levering, 3 Hagg, Marris, 31 Id. 6g. 87. Crewe v. Crewe, Id. 126. (c) Ross v. Ross, L. R., i Prob. & (a) Glenniev. Glennie, 32 Law J., Prob. Matr. 734. & Matr. 17. Phillips v. Phillips, 31 Id. (d) Dempster v. Dempster, 31 L. J., 69. Allen V, Darcy, 30 Id. 4. P. & M. 20. See Newsome v. Newsome; L. R., 2 Prob. & Div. 306. ' Pierce v. Pierce, 3 Pick. (Mass.) 299. Wolf v. Wolf, Wright (Ohio), 243 Meyers v. Meyers, 41 Barb. (N. Y.) 114. 490 THE LAW OF TORTS. [Ch. XIX. 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 forgiveness on the part of the wife, in the hope of reclaiming her husband, would be meritorious, while a similar forgiveness by the hus- band would be dishonorable. Passages to this effect abound in the judgments of Lord Stowell and Sir J. Nicholl." {e) The forgiveness of a wife, which is to take away the hus- band'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 imperfect forgiveness, and unless followed up by reconciliation and the reinstatement of the wife in the position she occupied before she trans- gressed, are incomplete, and do not amount to legal condona- tion. There is no legal condonation where the act of for- giveness has not been acccompanied or followed by conjugal cohabitation. (/) ' The fact of the adultery of one of the parties having been condoned is no bar to a petition for a divorce on account of (e) Peacock v. Peacock, 27 Law J., {/) Keats v. Keats. 28 Law J., Prob. Prob. & Matr. 71. & Matr. 78. ' When it appears that the libellant had reasonable grounds to believe that the libellee had been guilty of adultery and continued to live with him, it will be pre- sumed that the offense was remitted, and, unless an offense subsequent thereto is established, it will be a complete bar to a divorce upon that ground ; Johnson v. Johnson, 4 Paige (N. Y.) 460 ; Hall v. Hall, 4 N. H. 462 ; but if subsequently a similar offense is committed, the condonation goes for nothing, and the original offence is revived and may be used as a part of the ground upon which to procure a divorce ; Langdon v. Langdon, 25 Vt. 678 ; Armstrong v. Armstrong, 27 Ind. 186 ; Armstrong v. Armstrong, 32 Miss. 279. But cohabitation after knowledge of the offense is not always a bar. The court will take all the circumstances surrounding the parties into consideration, and if the wife is the libellee, it will consider her means of support, her necessities, &c., &c.; Wood v. Wood, 2 Paige (N. Y.) 108 ; and generally condonation on the part of the wife will be pressed with less rigor than condonation on the part of the husband. Gardner v. Gardner, 2 Gray (Mass.) 434 ; Armstrong v. Armstrong, 32 Miss. 279. A mere offer on the part of a wife to return and live with her husband after knowledge of the offense, not accepted by him, does not amount to a condonation. In order to have that effect the parties must actually cohabit together after knowledge of the offense. Quarles v. Quarles, 19 Ala. 363 ; Betz v. Betz, 6 Rob. (N. Y.) 691. Sec. I.] MATRIMONIAL RIGHTS. 491 adultery afterwards committed by the other, {g) provided there has been no connivance in, or sanction of, the adulter- ous intercourse. {It) 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 subse- quently committed by him. (?) When the issues are to be tried by a jury, the question whether or not there 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 condo- nation, and for the jury to determine whether, subject to that direction, the circumstances of the particular case amount to condonation, (j) 1249. Alimony in cases of dissolution of marriage. — On a decree {k) for a dissolution of marriage, the court may (s. 32) order the husband to secure such a sum of money for the support of the 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 parties. (/ ) And the payment may be ordered to be made weekly or monthly, 29 & 30 Vict. c. 32. 1250. Orders for the settlement of property for the benefit of the innocent 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. (;?/) 1251. Power of the Divorce Court over marriage-settlements. — By 22 & 23 Vict. c. 61, s. 5, it is enacted that the Court of Divorce, &c., after a final decree of a nullity of marriage, or dissolution of marriage, may inquire into the existence of ante-nuptial or post-nuptial {n) settlements, made on the par- ties 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 the property settled, either for the benefit of (,?) Anichini v. Anichini, 2 Curt. 210. (/) Fisher v. Fisher, 31 Law J., Prob. {K) Gipps V. Gipps, ante. & Matr. i. Morris v. Morris, Id. 33. (i) Seller v. Seller, 28 Law J., Prob. & Robotham v. Rohotham, 27 Id. 5r. Matr. gg. («) 20 & 21 Vict. c. 85, s. 45 ; 23 & 24 (;') Peacock v. Peacock, 27 Law J., Vict. c. 144,5.6. Milne v. Milne, L. R., Prob. & Matr. 71. " 2 Prob. & Div. 295. {k) I. e., on the final decree, Charles v. («) Bullock v. Bullock, L. R , 2 ProU Charles, L. R., 1 Prob. & Div. 260. & Matr. 389. 492 THE LA W OF TORTS. [Ch. XIX. the children of the marriage, {o) or of their respective parents, or both, {p) as to the court shall seem fit. {q) Where there is no issue of the marriage, or if there has been, and the children are dead, the court can not vary or alter the marriage- settlements, {r) 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 marriage, (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) 1252. Orders respecting 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, («) and may make such provision in the final decree, as it may deem just and proper with respect to the custody, maintenance, and educa'tion of the children, the marriage of whose parents is the subject of svich suit or other proceeding, and may, if it shall think fit, direct proper proceedings iv) to be taken for 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 separ- ation, 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 (p) Paul V. Paul, L. R., 2 Prob. & Graham, L. R., i Prob. & Div. 711. Matr. 93. Sykes v. Sykes, L. R., 2 Prob. & Div. {p) March v. March, L. R., i Prob.& 163. Matr. 440. (j) Thompson v. Thompson, 32 Law {q) Johnson v. Johnson, 31 Law J., J., Prob. & Matr. 39. See Smith v. Prob. & Matr. 2g. Pearce v. Pearce, 30 Smith, L. R., I Prob, & Div. 587. Id. 182. Home v. Home, Id. 200. If {t) Chetwynd v. Chetwynd, L. R., 1 the fund is in the Court of Chancery, ap- Prob. & Div. 39. March v. March, ilication must be made to such court to supra. -.zx-rj out the order, Pratt v. Jenner, L. («) Thompson v. Thompson, 31 Law R., I Ch. App. 493- J-. P™b. & Matr. 213. (r) Dempster v. Dempster, 31 Law J., (w) Milford v. Milford, 38 Law J, Prob. & Matr. 113. Thomas v. Thomas, Prob. & Matr. 63. 2 Sw. & Tr. 89. Corrance v. Corrance, (if) Seddon v. Seddon, 31 Law • L. R., I Prob. & Matr. 495. Graham v. Prob. & Matr, loi. Sec. I.] MATRIMONIAL RIGHTS. 493 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 re- specting 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, or dissolution of marriage, the court may, upon application (by petition) for this purpose, make, from time to time, all such orders and prx)visions 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 protection 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, (j) 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 children, is an interim order under s. 35 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 can not, 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 can not control them in the free choice of a resi dence after the age of sixteen, {a) Up to that age, however, it has jurisdiction tinder s. 35 to make orders as to their cus- tody, {b) & (x) Marsh v. Marsh. 28 Id. ifi ; 2 Sw. L. R., i Prob. & Matr. 715. Tr. 276. See Chetwynd v. Chetwynd, (z) Cubley v. Cubley, 31 Law J,, Prob, L. R., I Prob. & Div. 39. Barnes v. & Matr. i5l. Barnes, Id. 463. {a) Ryder v. Ryder, 30 Id. 44. (y) Webster v. Webster, 31 Law J., (i) Mallinson v. Mallinson, L. R., i Prob. & Matr. 184. Milford v. Milford, Prob. & Div. 221. ' The statutes of the several states generally regulate this matter. At common law the court had no power to take the custody of the children from the father. Ahrenfelt v. AJirenfelt, I Hoffman (N. Y.) 497. 494 T^HE LA W OF TORTS. [Ch. XIX. When a wife has been proved to have been guilty of adul- tery, 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, {a) In all suits and proceedings, other than proceedings to dissolve any marriage, the court is to proceed and give re- lief (s. 22 of 21 & 22 Vict. c. io8), ou principles and rules as nearly as may be conformable 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, committed in the presence of the mother, have, in some in- stances, been held cruelty to her, such acts may be alleged in a petition to the Divorce Court, praying for a judicial separ- ation on the ground of cruelty, and also for an order respect- ing 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 inquiry to enable 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. (/) 1253. Of the common law right of fathers to the custody of their infant children. — Every father has a right by the com- mon 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 ot 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 mother just and proper, (i) If the father has been deprived of the custody of his children, it will be restored to him both by the courts of common law (ett v. Allcott, 2 T. (a) Irwin v. Dearman, 11 East, 23. R. 168 ; ante. (b) Andrews v. Askey, 8 C. & P. 9. {y) Maunder v. Venn, M. & M. 323. Southernwood v. Ramsden, cited ib. 9. Jones V. Brown, i Esp. 217. Fores v. ' The action is person.al, and where the seduction took place in the life-time of the father, neither his personal representatives nor the mother, can maintain an action. The right of action dies with the parent entitled to bring it. George v. Van Horn, 9 Barb. (N. Y.) 523 ; and in such a case the mother can not maintain an action even though she was subsequently charged, with the daughter's mainte- nance. Vassill V. Cole, 10 Miss, 634. Sec. II.] SEDUCTION. 521 vice of her daughter, in whose virtue she can feel no con- solation ; and as the parent of other children whose morals may be corrupted by her example, {c) 1284. Evidence in aggravation of damages — Proof that the defendant made his advances to the daughter imder the guise of matrimony. — Evidence is inadmissible to show that the de- fendant accomplished the seduction through the medium of a promise of marriage, for the purpose of enhancing the dam- ages, 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 Ellenbor- OUGH, "whether the defendant paid his addresses to her in an honorable way." id) " The jury do right," observes WiLMOT, 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 ac- tion against the defendant for the breach of promise of mar- riage, so much the better. If much greater damages had been given, we should not have been dissatisfied therewith, the pkintiflF having received this insult in his own house, where he had civilly received the defendant, and permitted him to pay his addresses to his daughter." {ey If, in the course of the trial, a promise of marriage is in- advertently proved, the jury must be told to exclude the (c) B'jdford v. JIcKowI, 3 Esp. 120. (d) Dodd v. Norris, 3 Campb. 520. See per Lord EUenborough, C. J., in Ir- Elliott v. Nicklin, 5 Pr. 641. win V. Dearmaii, supra. {e) TuUidge v. Wade, 3 Wils. 18. * In actioa for seduction, the plaintiff can not prove, in aggravation of damages that the seduction 'vas effected under a promise of marriage. Kniffen v. McConpell 30 N. y. 3S5 ; Hagan v. Creagon, 6 Rob. (N. Y.) 138; Whitney v Elmer, 60 Barb, (N. Y.) 250 ; Kip y. Berdan, i Spen. (Ala.) 239 ; nor that the defendant procured an abortion on her ; Klapper v. Brommer, 26 Wis. 372. The parent need not wait where pregnancy transpires, until the birth of the child, but may sue at once ; Brigg V. Evans, 5 Ired. (N. C.) 16; and any facts, the natural consequercce of the seduction, though they did not happen until after suit brought, may be shown in aggravation ; Hewitt V. Prime, 21 Wend. (N. Y.) 79 ; but the plaintiff, while he may show the standing and character of his family in aggravation, can not show his special charac- teristics, as that he is a modest and retiring man, nor can the defendant show such facts in defense ; McRae v. Lilly, i Ired. N. C. 118. In an action forseduction of a daughter, the plaintiff may show his own standing in society, and his own pecuniary condition as well as that of the defendant, in aggravation of damages, and may recover not only for loss of service, but for the wounded honor and lacerated feeling of himself and family, arising from the disgrace. Grable v. Margrave, 3 Scam. (Ill 372 ; Yundt v. Hartrunft, 41 111. 9. 522 THE LAW OF TORTS. [Ch. XIX. injury resulting to the seduced girl from the breach of prom- ise of marriage, from their consideration, and leave it quite out of the question in determining the amount of the dam- ages to be recovered by the father and master for the loss of service. (/) 1285. 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. Prima 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 intercourse between the plaintiff's daughter and those witnesses prior to the period of the seduction, either for the purpose of reducing t*he dam- ^&6s, {g) ' or for the 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. [Ji) It may be shown that the seduced girl, prior to the seduction, was in the habit (jf keeping loose company or of giving utterance to loose lan- guage and immodest remarks ; she may be asked, for in- stance, 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 (y) Id. (K) Eager v. Grimwood, i Exch. 61 ; \g) Verry v. Watkins, 7 C. & P. 308. 16 Law J., Exch. 236. ' But the character of the house where she lived can not be shown by general reputation to be a bawdy house, nor would the fact that it was such a hou-ie necessa- rily affect the character of the daughter for chastity. In order to effect that, particular acts of unchaslity on her part must be pi-oved. But quere. If the action is by the parent, would not such evidence be admissible if he was shown to have kvown the character of the house, or \i he ought to have known it, on the ground of his negli- gence? Kiffen v. McCoUum, 30 N.Y. 285 ; and in order to render previous un- chastity admissible in mitigation, it must have been known to the defendant at the time of the seduction ; Lea v. Henderson, I Cold. (Tenn.) 146, and subsequent unchastity can not be shown ; Mann v. State, 34 Ga. i. Sec. II.] SEDUCTION. 5?3 in her cross-examination, whether she ever used the particu- lar language or the precise remarks intended to be given in evidence against her. (« ) ' Where the whole of the cross-examination in an action for seduction went to show that the person seduced had con- ducted herself immodestly and kept improper company, wit- nesses were allowed to be called to prove her general good chiiracter and modest deportment, and the general respecta- bility of the family. {E) But where the daughter was cross- examined to show that she had submitted herself to the de- fendant's embraces under circumstances of extreme indeli- cacy, 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, sa^'ing she had had ample opportunity of setting her conduct right in the course of her re-examination. (/) And where evidence was given on the part of the defendant to prove that the girl, pre- vious to her acquaintance with him, 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. (?«) ' 1286. Damages recoverable in actions for inducing or persuad- ing wives, servants, or workmen to abandon their duties or neg- lect the fulfillment 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- (?) Carpenter v. Wall, 11 Ad.&E. 803. (/) Dodd v. Norris, 3 Campb. 518. (k) Bate V. Hill, I C. & P. 100. (;«) Bamfield v. Massey, I Campb. 460. ' So far as actual loss of service is concerned, the previous unchaste character of the daughter has no effect in mitigation, nor so far as actual expenses and trouble in taking care of her are concerned, and if nothing more is claimed it can not be shown in mitigation, but, when damages for wounded honor and lacerated feelings are claimed, such facts are admissible, not as a bar to the action, but to mitigate or reduce the damages ; Fletcher v. Randall, Anth. N. P. (N. Y.) 267 ; Akerly v. Haines, 2 Cai. (N. Y.) 292 ; Hagan v. Creagan, 6 Rob. (N. Y.) 338 ; State v. Shean, 32 Iowa, 88 ; State v. Sutherland, 30 Id. 570. ' The fact that the defendant offered to marry the daughter, but the plaintiff refused his consent, can not be shown in mitigation ; IngersoU v. Jones, 5 Barb, (N. V.) 661 ; but previous unchastity may be shown in mitigation. 524 THE LAW OF TORTS. [Ch. XIX. matter of the contract may be recoverable from the wrong- doer, {n) The measure of damages is not to be confined to the loss of the services of the servants who were actually enticed away, but the jury are justified in giving ample com- pensation for all the damage resulting from the wrongful act. {o) Where the plaintiff alleged that his wife left him and lived apart from him, during which time a considerable for- tune 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, ;£'3,ooo damages were recovered for the wrong done. (/) 1287. Indictment for the abduction of unmarried girls. — Whoever unlawfully takes, or causes to be taken, any un- married girl, being under the age of sixteen years, out of the possession, and against the will, 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 misdemeanor, {q) And whoever fraudulently allures, takes away, or detains any woman under the age of twenty-one years, who has any in- terest in any real or personal estate, or is presumptive 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 {«) Crompton. J., Lumley v. Gye, 2 {q) 24 & 25 Vict. c. 100, s. 55. Reg. Ell. & BI. 230 ; 22 Law J., Q. B. 463. v. Tiramins, 30 Law J., M. C. 45. Reg. (0) Guntor v. Astor, 4 Moor, 15. v. Manktelow, 22 Id. 115. {p) Winsmore v Greenbank, Willes, (r) 24 & 25 Vict. c. 100, s. 53. 580. ' These matters are regulated by statute for special instances. See State v. Ruhl, 8 Iowa, 147 ; Stowe v. Heywood, 7 Allen (Mass.), 118; Com. v. Nickerson, 5 Id. 51S ; Rice v. Nickerson, 9 Id. 478 ; Carpenter v. People, 8 Barb. (N. Y.) 603; Mandeville v. Gurnsey, 51 Id. 99 ; State v. Tidwell, 5 Strobh. (S. C.) i ; State v. Farrar, 41 N. H. 53. SF.C II.l SEDUCTION. yi, woman over twenty-one, who is entitled to any real or per- sonal estate, &c., against her will, with intent to marry or carnally know her, subjects the wrong-doer to a similar pun- ishment and disability, {s) (x)lU. 526 THE LAW OF TORTS. [Cll. XX. CHAPTER XX. OF ACTIONS EX DELICTO — PARTIES THERETO — NoN-JOINDER AND MIS-JOINDER OF PARTIES. Section I. — Of actions ex delicto and the parties to be made plain- tiffs in such action. 1288. Parties to be made plaintiffs in actions of tort founded on contract. 1289. Of the remedies which tenants in common and joint tenants liave again^t each other. 1290. Rights of the survivor of two joint tenants or tenants in common. I2ql. Trustee and cestui que trust. 1292. Bailees of goods. 1293. Master and servant. Husband and wife. Actions by married women after a judicial separation, or an order for protection. Infants. Heir-at-law, devisee, and per- sonal representatives. Administrators. 1299. Trustees of bankrupts. 1300. Transfer of rights and liabilities ex delicto to trustees of bankrupts. 1301. Right of the trustees to the bank- rupt's wife's choses in action. 1302. Of the number of the plaintiffs in action ex delicto — Joint and separate rights of action. Section II. — Of actions ex delicto and the parties to he made defend' ants in such actions. 1303. Tenants in common. 1304. Corporations. 1305. When a joint-stock company is re- sponsible for the tortious acts of the directors and managers. 1294. 1295- 1296. 1297. 1 21 1306. Trustees and commissioners of public works. 1307. Military and naval officers. 1308. -Master and servant. 1309. Principal and agent. 13 10. Subsequent ratification and adoption of a wrongful act by parties for whose use and benefit the act was done. 1311. What amounts to evidence of ratification of a wrongful act. 1312. Servants and agents. 1313. Husband and wife. 1314. Infants. 1315. Executors and administrators.. 1316. Wrongs committed by a de- ceased person within six months before death. 1317. Actions against the executor of a prebendary, vicar, or in- cumbent of a benefice. 13 18. Liabilities of executors and ad- mini-trators for their own wrongful acts. ' 1319. Trustees in bankruptcy. 1320. Of ilie continued liability of a bankrupt to actions ex de- licto and to arre.^it. 1321. Of the number of the defendants in actions ex delicto — Par- ties jointly and severally lia- ble. Section III. — Of non-joinder and mis-joinder of parties — Amendment before and at the trial. 1322. Amendment of non-joinder and mis-joinder before trial. 1323. Amendment at the trial. Sec. I.] PLAINTIFFS IN EX DELICTO. 52? 1324. Amendment after notice' or plea 1326. The effect of marriage, death, in abatement of non-joinder and bankruptcy upon the of parties. proceedings in an action, 1325. Mis-joinder of defendants. SECTION 1. OF ACTIONS EX DELICTO AND THE PARTIES TO BE MADE PLAINTIFFS IN SUCH ACTIONS. («) 1288. Parties to be made plaintiffs in actions of tort founded on contract. — 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 by action of contract or of tort, at the option of the party in- jured. (B) Whenever 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 negligent 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 be carried for hire, and the goods are lost or in- jured through the negligent performance of the work of carry- ing, an action of contract or of tort is maintainable against 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 respect thereof must be either a party or privy to the con- tract, in order to establish a duty on the part of the defen- dant towards the plaintiff, and show a wrong done to the latter, {d) 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 condi- tion, and fit for the road, and, through his neglect to do the necessary repairs, one of the coaches broke down and in- jured the coachman, it was held that the coachman could not (a) Parties to be made plaintiflfs in 11 CI. & Fin. i. particular actions have already been con- (f ) Coggs v. Bernard, Smith'i L. C. sidered under their appropriate heads. 6th ed., 177. See Index in voce. (d) ToUit v. Sherstone, 5 M, & W, (i) Boorman y. Brown, 3 Q. B. 526; 288. 528 THE LAW OF TORTS. [Ch. XX. 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 coach- man was neither a party nor privy to that contract, {e) So where a person sent his luggage with his servant by a rail- way, and himself went by a later train, and the railway com- pany 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 what he does is done merely to please himself, or by virtue of a con- tract made with another. If materials furnished to a work- man 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 in- jured by the negligent execution of the work, the injured stranger is the person to be made plaintiff. Every person who enters upon the performance of the work of carrying merchandise or passengers is bound to ex- ercise due and proper care and skill 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 under which the work was done, {k) There are other cases, also, in which a third person, though not 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 unskillfully 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 {e) Winterbottom v. Wright, 10 M. & 5 Q. B. 241. W. 115. Blakemore V. Brist. and Ex- (^) See Austin v. Gt. West. Rail. Co., e'p.T Rail. Co., 8 Ell. & Bl. 1049 ; 27 L. R., Q. B. 442. Law J., Q. B. 167. (h) Collett v. Lond. and North-West. (/) Becher v. Great East. Rwy., L. R., Rail. Co. Marshall v. York, &c., anU. Sec. I.] PLAINTIFFS IN EX DELICTO. 529 the contracting party with the apothecary or surgeon : for, though no such contract had been made, the apothecary, if he gave improper medicines, or the surgeon, if he took him as a patient and unskillfully treated him, would be liable to an action for a mis-feazance. (?) 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 can not be saved from the consequences of his illegal act in commiting 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 sustains damage from it, not supposing that a loaded gun would have been placed in such a spot. (7) Whenever an action of tort is founded upon a contract, it proceeds upon the assumption that the contract is good in law, and can be enforced by action ; if, therefore, the contract -S verbal when by law it is required to be in writing, no duty is created by it, and an action founded tipon sucL jontract is not maintainable, {k) 1289. Of the remedies which tenants in common and Joint tenants have against each other. — If two several owners oi 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 oi a wood, and one of them leases his part to the other, who cuts do nxs. young timber trees and does waste, he shall be punished for a moiety of the waste, and the lessor shall recover a moiety of the place wasted : but one {i) Parke, B., Longmeid v. Holliday, 6 6 Exch. 767. Dixon v. Bell, 5 M. & S Exch. 767. Gladwell v. Steggall, 8 Sc. xqS. 67 ; 5 B. N. C. 733. 'Jt) Carrington v. Roots, 2 M. & W. (_/■) Pavke, B., Longmeid v. Holliday, II-— 34 530 THE LAW OF TORTS. [Ch. XX, tenant in common can not 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 inheri- tance'; but he is entitled, in an action of account, to recover a moiety of the value of the tree. (/) ' By the common law, indeed, joint tenants and tenants in common had no remedy against each other where one alone received the whole profits of the estate ; for he could not be charged as bailiff or receiver to his companion, unless he actually made him so; but by 4 Anne, c. 16, s. 27, it is pro- vided, that joint tenants and tenants in common, and their executors and administrators, may have an action against the others as bailiffs, for receiving more than their just share or proportion, {in) 1290. 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 latter is consequently entitled to recover the whole of the damages, {ri) 1291. Trustee and cestui que trust. — In the case of a per- manent injury to real property in the occupation of a tenant (/) Martyn v. KnowIIys, 8 T. R. 145 ; Engl. & Ir. App. 464. ante. (n) Smith v. Lond. and North-West. {ml See Jacobs v. Seward, L. R., 5 Rail. Co., 2 Ell. & Bl. 69. ' If one tenant in common of a mill uses it to the injury of a stranger, the other co-tenant, not participating in the act, is not liable therefor. Simpson v. Leavey, 8 Me. 138. So, where a stranger does an act upon the premises by permission of one joint tenant, he is not liable to the other. Sheperd v. Young, 2 La. Ann. 238. So, where two joint owners of hay deposited it in the barn of a third person, it was held that one of them had no right to break the barn open to get the hay. Croc' er V. Cirson, 33 Me. 436. So, where one tenant in common erects a dam upon the joint estate and raises the water so as to flood the separate estate of the other ten- ant, he is liable to him therefar. Great Falls Co. v. Worcester, 15 N. H. 412 ; see note X, page , vol. I. Sec. I.] PLAINTIFFS IN EX DELICTO. . 531 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) 1292. 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, de- tention, or loss of them ; such 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 ware- house-keeper, who has them for safe custody, or an auc- tioneer or shopkeeper, to whom they have been sent to sell, (/) or the master of a vessel, or of a canal-boat, who is in- trusted with the possession and management of the vessel or boat, and its tackle and furniture, {q) and many others, to whom goods have been delivered for a special purpose, and who do not pretend to any absolute property in them, (f) 1293. Master and servant. — The master is entitled, as we have seen, to maintain an action for damages for a persona) 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." (j) The mas- ter may claim, and will be entitled to recover, damages not only for the loss of the services of his servant up to the time of the commencement of the action, but, if the servant con- tinues disabled, down to the time when it appears by the evidence that the disability may be expected to cease, (f) A parent whose child was, before the injury it sustained, capa- {0) Vallance v. Savage, 7 Bing. 599. (j) Abbott, C. J., Hall v. Hollander, 4 (/) Williams v. Millington. i H. Bl. B. & C. 663 ; ante. %\. Colwell V. Reeves, 2 Campb. 576. (^) Hodsoll v. Stallebrass, II Ad. & E, (?) Pitts v. Gaince, i Salk. 10. Moore 301 ; post, ch. 22. rROSPECTlVE Dam T. Robinson, 2 B. & Ad. 817. ages. (r; Martini v. Coles, I M. & S. 147. 532 • THE LAW OF TORTS. [Ch. XX ble of performing acts of service, may, as we have seen, main- tain 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, {u) 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 en- titled to damages in respect thereof {v) 1294. Husband and wife, [w) — If a man marries a woman seized in fee of certain lands and tenements, he gains a free- hold 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 occupation 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 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 can not 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 will then have no legal interest in the property, and no right to maintain an ac- tion for any damage that may be done to it. 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, ( j) and for double value under 4 Geo. 2, c. 28, s. i, for holding over by tenants after notice to quit, {z) If a feme sole hath a right to have common for life, and she marries, and the husband is («) Ante. Hall v. Hollander, 4 B. & Property Act, 1870," 33 & 34 Vict. c. 93, C. 662. iv) Bac. Abr. Baron and Feme, C. (zi) Gladwell v. Steggall, 5 B. N. C. (y) Wallisv. Harrison, 5 M. &W. 142. 736. (z) Harcourt v. Wyman, 3 Exch. 824 ! (w) See " The Married Woman's 18 Law J., Exch. 453. Sec. I.J PLAINTIFFS IN EX DELICTO. 533 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-joiner of the husband is pleaded in abatement. {U) 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 mar- riage, 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 de- liver them up to the husband, the latter may maintain an action for the detention or conversion of them without join- ing 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 prop- erly joined with the husband for conformity, (c) So absolute is the husband's right to all chattels and per- sonal 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 all kinds of personalty, as soon as it is placed by the trustees in the hands of the wife in the execution of the trusts. ( ^ ) 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 where there is no injury to the (a) Baker v. , 2 Bulstr. 14. {c) Aviing v. Wliicher, 6 Ad. & E. 25'^ {b) Milner v. Milnes, 3 T. R. 627. (rf) Came v. Brice, 7 iM. & W. 183 Morgan v. Cubitt, 3 Exch. 612. Dal- Bird v. Peagrum, 13 C. B. 649. See ton V. Mid. Count. Rail. Co., 13 C. B. "The Married Women's Property Act 474- 1870," 33 & 34 Vict. c. 93. 534 THE LAW OF TORTS. [Ch. XX. person of the wife, and the action would not survive to her; the wife ought not to be joined, she having no legal interest in the damages to be recovered, {e) The husband, for exam- ple, 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 injuries resulting from an assault upon her by the defen- dant ; 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, {f) By the old law, therefore, it was often necessary to bring separate actions for the recovery of the entire damage re- sulting 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 conformity ; but now, by the Com- mon 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 neces- sarily joined as co-plaintifif, it shall 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 sur- vive, shall abate. If a defendant has been guilty of a fraudulent representa- tion that a chattel is fit for use, knowing that it is not, and making the representation in order that the chattel may be used by the plaintiff's wife, and the wife uses it and is in- jured, both the husband and wife may be properly joined in an action for the deceit, but the wife can not be joined with the husband where the action is founded merely on a breach of warranty without proof of willful 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 {e) Saville v. Sweeney, 4 B. & Ad W. 6. 523. {g-) Longmeid v. HoUiday, 6 Exch. (/) Dengate v. Gardiner, 4 M. & 761, Sec. I.] PLAINTIFFS IN EX DELICTO. 535 action. It is a good plea in bar, therefore, to an action pro- fessing 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. (Ji) Where the husband and wife were seized 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 de- fendant, 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. (?) 1295. Actions by married women after a judicial separation, or an order for protection. — When a married woman is living separate from her husband under a decree for a judicial sep- aration, she is considered as a feme sole for the purpose of suing for damages for any wrong or injury that she may have sustained. (_/") 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, (fi) ' 1296. 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.' 1297. Heir-at-law, devisee, and personal representatives. — All causes of action in respect of injuries of a continuing nature to real property descend with the property to the heir-at-law on the death of the ancestor, or vest in the devi- see, remainderman, or personal representative, in whom the legal estate in the land may be vested by deed, will, or admin- istration. {I) The heir-at-law is the proper person to maintain an action for the entire damage resulting from a nuisance of a continu- ing nature to land which comes into his possession by (h) Chantler v. Lindsey, i6 M. & W. {k) Boggett v. Frier, ii East, 301. 82. (/) Vivian v. Champion, 2 Ld. Raym, (j) Bacon v. Smith, I Q. B. 345. 1126. (j) 20 & 21 Vict. c. 85, s. 26 ; ante. ' This is only the case where provision is specially made by statute therefor. ' And can only sue in that way, and in all cases when defendants in a cause, the plaintiff must see to it that there is a guardian ad litem appointed, or the judgment will be set aside on audita querela, or by proceedings in equity. 536 THE LAW OF TORTS. [Ch. XX descent. Thus, where one John Rolf built a house so near to the house of Richard Rolf that the eaves of his said house did overhang the house of Richard, and pour water thereon, and afterwards both John and Richard died, and their respective houses descended to their respective sons and heirs-at-law, and the heir of Richard, 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 Richard, who did demur in law, it was adjudged that the action was main- tainable, because the defendant did not on request reform the nuisance which his father had made, but suffered it to con- tinue 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. («) 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 estate. 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 persona. 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 them to be utterly consumed, the heir could not sue, because the damage was sustained in the lifetime of the ancestor, and the personal representatives could not recover the damages /hat had been sustained, because they were personal to the deceased, and the remedy died with him. ( action dies, as battery, false imprisonment, trespass, words (slander or libel, Ed.), nuisance, obstructing ancient lights, diverting a vvater-courbe, escape against a sheriff, and many other cases of the like kind." As to those which survive or die in respect of the form of action, in son-f actions the defendant could have waged his law, and, therefore, no action in tb i^ form lies against the executor. But now other actions are substituted in their room, upon the very same cause, which do survive, and lie against the executor. No action, where in form the declaration must be quare vi et armis il contra parent, or where the plea must be not guilty, can lie against the executor. Upon, the face of the record, the cause of action arises ex delicto, and all pnvate criminal injuries and wrongs, as well as all public crimes, are buried with the offenders. But in most, if not all the cases where trover lies against the testator, another action might be brought against the executors, which would answer every purpose. An action on the custom of the realm against a common carrier, is for a tort, and supposed crime ; the plea is not guilty, and, therefore, it will not lie against the executor, ^al assumpsit, which is another action for the same cause, will lie. So, 540 THE LAW OF TORTS. [Ch. XX. the passenger so contracting dislocates or fractures a limb, and owing to his confinement in procuring a cure, his per- sonal property sustains an injury, although he during his life- if a man take a horse from another, and brings him back again, trespass will not lie against the executor, although it would against the testator, but an action for the use and hire of a horse, will lie against the executor. There is a case in Sir Thomas Raymond (Bailey v. Birtles, 71), which sets this matter in a clear light. There, in an action upon the case, the plaintiff declared " that he was possessed of a cow, which he delivered to the testator in his lifetime, to keep the same for the use of him, the plaintiff ; which said cow the said Richard afterwards sold, and did convert and dispose of the money to his own use, and that neither the said Richard, in his life, nor the defendant, after his death, ever paid the said money." Upon this state of the case, no one can doubt but the executor was liable for the value. But the special injury charged compelled him to plead that the testator was not guilty. The jury found him guilty. It was moved in arrest of judgment, because this is a tori for which the executor is not liable to answer, but moritur cum fersonA. For the plaintiff it was insisted that, though an executor is not chargeable for a misfeasance, yet for a nonfeasance he is. . . The court held that " it was a tort, and that the executor ought not to be chargeable." Sir Thomas Raymond adds (see SaviUe, 40), a difference taken, " That was the case of .Sir Henry Sherrington, who had cut down trees upon the Queen's land, and converted them to liis own use in his lifetime. Upon an information against his widow after his decease, Manwood, Justice, said : " In every case where any price or value is set upon a thing in which the offense is committed, if the defendant dies, his executor shall be chargeable, but where the action is for damages only, in satisfaction of the injury done, his executor shall not be liable.' " These are the words Sir Thomas Raymond refers to. "Here, therefore, is a fundamental distinction. If it is a sort of injury by which the offender acquires no gain to himself, at the expense of the sufferer, as beating 01 imprisoning a man, &c., there the person injured has only a delictum in damages to be assessed by a jury. But where, besides the crime, property is acquired which benefits the testator, then an action for the vahie shall survive against the executor. As, for instance, the executor shall not be chargeable for the injury done by his testator in cutting down another maji*s trees, but for the benefit arising to his testator, for the value or sale of the trees, he shall. So far as the tort itself goes, an executor shall not be liable ; and, therefore, it is that all public and private crimes die with the offenders, and the executor is not chargeable. But so far as the act is beneficial, his assets ought to be answerable, and his executor, therefore, shall be chargeable'' But, in this case the judgment was arrested, upon the ground that trover would not lie, but that the form of action should be assumpsit _/<)?• 7noney had and received. In this case the court seem to regard it as essential to a recovery from the executor, for the value of property converted by the testator, that it should have been sold by the testator, for he remits the plaintiff to his remedy for money had and received, which could not lie unless it had been sold and converted into money. See Jones v. Hoar, 5 Pick. (Mass.) 285 ; Lightly v. Clouston, I Taunt. 112 ; Bennett v. Francis, 2 B. & P. 554 ; Lindon v. Hooper, Cowper, 419 ; King v. LeitTi, 2 T. R. 144 ; Hitchin f. Campbell, 2 W. BI. 827 ; Lemine v. Dorrell, 2 Ld. Rayd. 1216. Thus it wi' 1 be seen that in all cases where tile cause of action rests in tort, and ^le of the partus dies, no recovery can be had against his executor for the injury, ani Sec. I.] PLAINTIFFS IN EX DELICTO. 541 time, 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 c?>XTy him safely, and that in no case can there be a recovery against the estate^ except in those cases ivlicre the party can waive the tort and bring assumpsit therefor. Thus it has been lield that an action for diverting a water course dies with the person ; Holmes v. Mooie, 5 Pick. (Mass.) 257 ; so that the following actions have been held not to survive an action of trespass for cutting down trees, or trespass on the freeliold generally ; Wil- liams V. Breeden, r B. & P. 329 ; an action for a penalty, or an action of debt, given by special statute for cutting down trees ; Little v. Conan!", 2 Pick. (Mass.) 527 ; an action for overflowing another's land will not survive to the executor of the person injured ; McLaughlin v. Dorsey, i H. & McH-. (Md.) 224 ; an action for obstructing a highway, whereby the plaintiff's horse was killed ; Hawkins v. Glass, i Bibb. (Penn.) 246 , an action for mesne profits, while the testator was wronirfully in possession ; Harker v. Whittaker, 5 Watts. (Penn.) 474 ; an action against the estate of a postmaster for money feloniously taken out of a letter by his clerk ; Franklin v. Law, I Johns. (N. Y.) 376 ; an action of debt against the executor of a sheriff for an escape in the sheriff's life time ; Martin v. Bradley, i Cai. (N. V.) 124 ; an action for a fraud of the deceased ; Traup v. Smith, 20 Johns. (N. Y ) 43 ; actions for assault and'battery, false imprisonment, slander or libel, nuisance, escape against a sheriff, and all merely personal wrongs, arising from the wrongful or negligent acts of another, die with the person ; Cravath v. Plympton, 13 Mass. 453 ; so, an action for deceit ; Newsom v. Jackson, 2g Ga. 61 ; Cutting v. Tower, 14 Gray (Mass.), iS'3 ; an action for trover; Barnard v. Harrington, 3 Mass. 228. Actions for replevin survive as to the plaintiff, but not as to the defendant. Miller v. Baldwin, 4 Mass. 4S0 ; Lehay v. Brady, I Daly (N. Y.) 449 ; Emerson v. Bleakley, 2 Abb. Ct. of App. (N. Y.) 22. Trover, trespass de bonis asportatis and replevin may be brought by an execu- tor, but not afflz»j< him. Mellen v. Baldwin, «»/^y Cherry v. Hardin, 4 Heisk (Tenn.) 199. So, where the statute makes certain acts of an officer a tort, no action at law can be maintained therefor against his executors. Maies v. Sprague, 9 R. I. 541. An action for breach of promise to marry ; Wade v. Kalbflei~h, 58 N. \. 202; libel ; Moore v. Bennett, 65 Barb. (N. Y.) 338 ; ejectment, nor actions in the nature of, do not survive the death of the defendant. Benjamin v. Smith, 17 Wend. (N. Y.) 208. An action of waste survives to but not against an executor. Ruther- ford V. Aiken, 3 Sup. Ct. Rep. (T. cSc C. N. Y.) 60. An action of trespass survives to but not against an estate. Snyder v. Craig, 2 Johns. (N. Y.) 227. And where the action is purely tortious it does not survive, even though by statute assumpsit may be brought therefor; People v. Gibbs, 9 Wend. (N. Y.) 2^ ; and, generally, un- less the nature of the act is such that a contract can be implied, the action does not survive at common law. Thus, actions for personal injury resulting in instant death by the negligence of a carrier of passengers, do not survive ; but if the deceased lived after the injury was inflicted, for however short a period of time, an action lies, but the action is upon the contract, and not in tort. Yertone v. Wiswell, i How. Pr. (N. Y.) 8. Thus, in Bancroft v. Boston & Worcester R. R. Co., II Alle (Mass.), 35, the plaintiff's intestate survived, although wholly insensible, for abotii fifteen minutes after the injury, and the court held that a recovery could be had. Bir.ELOW, J., in giving the opinion of the court, said : " The length of time during which life remains is not material in determining whether the cause of action survives, 542 THE LA W OF TORTS. [C.l. XX. recover damages for the injury which has accrued to his personal estate from the breach thereol. Where the plaintiff suing as administrator set forth in his declaration that the defendant was employed by the intestate in his lifetime to act as his attorney to investigate the title to an estate the intes- tate had purchased, that the defendant entered upon the em- ployment, 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 es- tate, 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 uncon- nected with contract causing the death of the party injured, it has been enacted, by thQ^p & lo Vict. c. 93, 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 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 of the person deceased, or by the persons beneficially interested. {s) Knight V. Quarles, 4 Moore, 541. Suppose a person should receive an injury by which one of the main arteries was severed, and life thereby extinguished in five minutes. If he Avas a soldier or sailor and received such injury in actual service, there can be no doubt that a nuncupative will made by him would be good. The time, tliough brief, would be sufficient to enable him to do a valid legal act. Could there be any doubt, then, that under the same circumstances, a cause of action would accrue to him against a party who negli- gently caused the injury which would survive to the administrator? Time, then,'' adds the learned judge, " can not be the test by which the right of the personal rep- resentative to sue can be tried ; nor can the presence or absence of consciousness or sensibility be the standard." And in the same opinion he gives the test thus, " The continuance of life after the accident, and not insensibility or want of conscious- ness, is the test by which to determine whether u. cause of action survives" See also Hallenbe-:k v. Berkshire R. R. Co., g Cush. (Mass.) 478. An action under a st.itute for selling liquor to an habitual drunkard, survives Kilham v. Cae, 48 How. Pr. (N. Y.) 144. An action for fraudulent misrepresenta- tion in reference to property sold, survives. Haight v. Hoyt, 19 N. Y. 464. So an action against an attorney for negligence in the conduct of the plaintiflTs bu.siness. E'der V Bogardus, Lalor's Supt. (N. Y.) 116. But, in determining what actions survive to or against an executor, reference must always be had to the statute of the state where the claim is sought to be enforced, as the common law rules have been essentially changed in many of the states. Sec. I.] PLAINTIFFS IN EX DELICTO. 543 1298. 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 tne intestate, and before the grant of the letters ol administration, {li) 1299. Trustees of bankrupts may bring or defend any ac- tion, suit, or other legal proceeding relating to the property of the bankrupt, (z^) Such trustees also, where an)? portion of the property of the bankrupt consists of things in action, may institute suits in their official 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 bank- rupt, 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 io6th, 107th, and io8th sections, provision is made for the admission in evidence in all courts of the various pro- ceedings in bankruptcy, provided they purport to be sealed or signed as therein mentioned. And b}' the 109th section, judicial motive is to be taken of the various seals of the Court of Bankruptcy, and of the signature of the judge or registrar of any such court. The production of the certificate of ap- pointment 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, (jr) A party to a suit, however, may, by his conduct and actions in dealing with trustees in bankruptcy, have so recognized their title as (/) Tharpe v. Stallwood, 5 M. & Gr. Eq. Ca. 397. 777. {x) Reg. Gen. H:1. T., 16 Vict., i Ell. («) Foster v. Bates, 12 M. & W. 226. & Bl. App. Ixxix. (v) 32 & 33 Vict. c. 71, s. 25. As to (j)') Kelly v. Morray, L, R., i C. P. their power to compromise disputes, fee 667. The l8th section, however, has S. 27. the words " and svich appointment shall (a/) Sect. 22. As to a trustee in bank- date from the date of the certificate," ruptcy fraudulently omitting to prose- which were not in the Act, 24 & 25 Vict. cute an action, see Benfield v. Solomons, c. 134, under which the above case was 9 Ves. 84. Smith v. Moffat, L. R., I decided. 544 THE LAW OF TORTS. [Ch. XX. to be afterwards precluded from requiring formal proof of it. {z) 1300. Transfer of rights and liabilities ex delicto, to trustees of bankrupts. — We have already seen that all the real and personal estate and effects of bankrupts, with certain excep- tions, are vested in the trustees in bankruptcy. The trustees, therefore, 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 ; {ci) but they can not maintain an action for injuries to the person of the bankrupt. They can not sue, for example, for damages for a Ubel 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; ib) 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, nevertheless, be so dependent upon, and insep- arable from, the personal injury, which is the primary cause of action, that no right to maintain a separate action in re- spect 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 will 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 claim 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 (z) Dickinson v. Coward, I B. & Aid. do not interfere : Morgan v. Kniglit, 33 677. Inglis V. Spence, i Cr. IM. & R. Law J., C. P. 168. 432. . {b) Howard v. Crowther, 8 M. & W. (a) Michell v. Hughes, 6 Bing. 689, 6oj. although the bankrupt of whom they are {c) Drake v. Beckham, II M. & W. tnistecs was an uncertificated bankrupt 319. Hodgson v. Sidnsy, L. R., I Exch. at the time of their appointment, i.e.y if 313. the trustees under the first bankruptcy Sec. L] plaintiffs in ex delicto. 545 lodgers, being induced to believe that he was in embarrasssd 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 vindic- tive 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, {d^ " 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 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, con- tinues in the possession and occupation of land which has been demised to him, he may maintain an action for tres- passes or injuries done to the land, if the trustees do not in- terpose and take the lease. (/) But if he goes away and abandons the possession of the premises, he has no right of action, (^) unless he returns and resumes possession with the assent of the trustees or the landlord, before any other per- son 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) 1301 Right of the trustees to the bankrupt's wife's choses in action. — When a right of action of the bankrupt's wife is af 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 pos- session by them during the joint lives of the husband and {(1) Brewer v. Drew, 11 M. & W. 625. onerous property, the lease shall be {e) Rogers v. Spence, 12 CI. & Fin. deemed to be surrendered from the date "J-AQ. But see per Bramwell, B., in Hodg- of the order of adjudication. son V. Sidney, supra; and Morgan v. {g) Clarke v. Calvert, 8 Taunt. 752. Steble, L. R., 7 Q. B. 611. (//) Topham v. Dent, 6 Bing. 515. ( f) See s. 23, which provides that if {i) Hancock v. Caffyn, 8 Bing. 367, the trustees disclaim any lease or other II.— 3S 546 THE LAW OF TORTS. [Ch. XX. wife, and that may be done in a joint action by the trustees and the wife, {j) 1302. 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 already 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 com- mon 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 sihgle 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. (/) Trustees in bankruptcy taking, as they do, a joint interest in the bankrupt's estate, should all be joined as plaintiffs in an action brought by them in their representative character in respect of injuries to such estate, {ni) But parties can not 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 in- juries, {n) If slander is published concerning two partners, containing imputations injurious to them in their trade and affecting their joint interests, they may sue jointly for dam- ages, ip) ' Where the duty springs out of a joint contract, if either of the parties has a separate interest, he may sue separately (/) Richbell v. Alexander, 30 Law J., (ni) Snelgrove v. Hart, 2 Stark. 424, C. P. 268. Jones V. Smith, i Exch. 831. {k) Hare v. Celey, Cro, Eliz. 143. («) Barratt v. Collins, ante. Some V. Barwish, Cro. Jac. 231. (0) Le Fanu v. Malcolmson, I II. L. if) Bac. Abr., Joint-Tenants, &c., K. C. 637 ; ante. ' All parties should be made plaintiffs wljo have a legal interest in the subject- matter of the action sued for, when the interest is joint, and the interest has not been severed ; Sawyer v. State, 4 Wash. (U. S.) 227 ; but where severance has been Bsa.de, each may sue separately ; Hall v. Leigh, 8 Cr. (U. S.) 50 ; but this does not apply to tortious actions unless the interest was severed before the injury cc- c'lrred. Sec. II.] DEFENDANTS IN EX DELICTO. 547 in respect of such separate interest. (/) 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 mdividually, 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 ac- counts, (g) Provision is made, as we shall presently see {post, s. 3), by the Common Law Procedure Act, 1852, 15 & 16 Vict. c. 76, for amending 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 legaf right may be supposed to exist ; and judgment may be given in favor 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 favor of such one or more of them as shall be adjudged by the court to be entitled to re- cover : Provided always, that the defendant, though unsuc- cessful, shall be entitled to his costs occasioned by joining any person or persons in whose favor judgment is not given, unless otherwise ordered by the court or a judge. SECTION II. OF ACTIONS EX DELICTO AND THE PARTIES TO BE MADE DEFENDANTS IN SUCH ACTIONS, {f) 1303. Tenants in common. — If one tenant in common misuse that which he has in common with another, he is answerable {p) Eccleston v. Clipsham, i Wms. {r) Parties to be made defendants in Saund. 154. particular actions have already been (^) Story V. Richardson, 8 Sc. 291 ; 6 considered under their appropriate heads, B. N. C. 123. see Index, in voce. 548 THE LAW OF TORTS. ■ [Ch. XX. to the other in an action for misfeazance. (s) He is respon- sible 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 propert)'. {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 contem- plation of law to an actual ouster. (?<) 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) 1304. Corporations. — A corporation, by accepting a grant of land from the crown upon certain conditions as to the repair of sea-walls and defenses, 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 entering 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 corporation in the matter of a wrong- ful distress or seizure of goods from the fact of their having received the proceeds of the seizure. ( j/) Individuals constituting a foreign corporation can not be made personally liable for its contracts or torts in this coun- try ; (^r) but the corporation, if it carries on busin'ess here, may (semble) be sued on a cause of action arising in this country and service upon the head officer of the English branch is sufficient, {a) (s) Ld. Kenyon, C. J., Martyn v. Henley, I B. N. C. 240. KnowUys, 8 T. R. 145. (x) Maund v. Monm. Rail. Co., 4 M. (f) Holt, C. J,, Waterman v. Soper, I & Gr. 452 ; 5 Sc. N. R. 457- Ld. Raym. 737. Cubitt v. Porter, ante. ■ (j) Smith v. Birm. Gas Co., I Ad. & {ri) Wilkinson v. Haygarth, 12 Q. B. E. 526. 845. (z) General Steam Nav. Co. v. Guillou, {v) Jacobs V. Seward, L. R., 5 Engl. II M. & W. 877. & Ir. App. 464. {a) Newby v. Colt's Patent Fire-Anni (z») Mayor, &c., of Lyme Regis v. Co., L. R., 7 Q. B. 293. Sec. II.] DEFENDANTS IN EX DELICTO. 549 An action for a wrong lies against a corporation where the thing done is within the purpose of the corporation, and it has been done in such a manner as to constitute what would be an actionable wrong if done by a private indi- vidual. Therefore, where an action was brought against the London General Omnibus Company for interfering with the rights of the plaintiff, by driving their omnibuses 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 Erle, 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." {U) A corporation may become liable in damages for the im- proper and careless construction and management of danger- ous 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 corpora- tion. (^) But where a corporation have, employed a solicitor to conduct legal proceedings, the corporation are not neces- sarily liable for unlawful acts of which the solicitor may have been guilty in the conduct of the- proceedings, {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 unskillfulness of its {b) Green v. Lond. Gen. Omnibus Co., Exch. 314. Goff v. Gt. North. Rail. Co. 29 Law J., C. P. 13. ante. {c) Cowley v. Mayor, &c., of Sunder- {e) Eggington v. Mayor of Lichfield, 5 \xa^,ante. Ell. &B1. 112. {. •85. Tarbutt, 5 T. R., 651. Sutton v. Clarke, (/) And see s. 77. 6 Taunt 29. Sec. IL] DEFENDANTS IN EX DELICTO. 563 found guilty; (v) 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 com- mitted in a joint sale by them of some sheep, and the declara- tion 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 no evidence to 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, (z) See post, s. 3. Where an action has been brought against several joint- trespassers, the evidence must be confined to the joint offense in which all are implicated. The plaintiff can not 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 can not have recourse to a tres- pass committed at a subsequent time, when some of the defendants were concerned who were not implicated in the first transaction, {b) for some of the defendants might be thereby subjected 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 committed 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 can not, as we have seen, drag {») Nicoll V. Glennie, I M. & S. 588. (r) Ibid. Tait v. Harris, 6 C. & P. \y) Pozzi V. Shipton, 8 Ad. & E. 975. 73. («) Weall V. King, I2 East, 452. {d) Roper v. Harper, 5 Sc. 250 ; 4 B. (a) Aaron v. Alexander, 3 Campb. N. C. 20. 35. (e) Howard v. Newton, 2 M. & Rob. (!>) Sedley v. Sutherland, 3 Esp. 204. 510. 564 THE LAW OF TORTS. [Ch. XX. the firm or his co-partners into a trespass by signing a war- rant 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 trans- action, they may then, as we have seen, become responsible for it. SECTION III. OF NON-JOINDER AND MIS-JOINDER OF PARTIES — ^AMEND- MENT BEFORE AND AT THE TRIAL. By the Common Law Procedure Act, i860, 23 & 24 Vict. c. 126, s. 19, it is provided, 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 favor o.t 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 person in whose favor judgment is not given, unless otherwise ordered by the court or judge. This sec- tion 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, {ji) 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, {i ) 1322. Amendment of non-joinder and mis-Joinder before trial. — By the Common Law Procedure Act, 1852, 15 & 16 (/) Petre V. Lament, Car. & M. 96. {h) Bellingham v. Clark, i B. & S. {g\ Bremner v. Hull. L. R., I C. P. 332. 748. W Stubs V. Stubs, 31 Law J., Exch, 511. Sec. III.] NON-JOINDER AND MIS-JOINDER. 565 Vict. c. "](), 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 originally 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 afore- said, be the same as if such person had been originally joined in such cause." 1323. 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 may be 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 officer, in like manner as in the case of amendments of vari- ances under the 3 & 4 Wm. 4, c. 42, if it shall appear to such court, or judge, or other presiding officer, that such mis- joinder or non-joinder was not for the purpose of obtaining an undue advantage, and that the person to be added con- sents, either in person or by writing under his hand, to be so joined, or that the person to be struck out was originally in- troduced without his consent, or that such person consents in manner aforesaid to be so struck out ; and such amendment 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 566 THE LAW OF TORTS. [Ch. XX 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 origin- ally joined in such action. And by s. 222, further powers of amendment {post, ch. 21, s. 2) are given, enabling fresh plain- tiffs to be added in certain cases, in order to bring the real question in dispute before the court, {k) but not a fresh defend- ant. (/) 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. («) 1324. Amendment after notice or plea in abatement of non- joinder of 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 be pleaded, be pleaded by the defen- dant, 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 abate- ment, and proceed in the action without any further appear- ance, on payment of the costs occasioned by such amend- ment ; and, in such case, the defendant shall be at liberty to plead de novo. 1325. Misjoinder of defendants. — The 15 & 16 Vict. c. "](>, s. 37, provides for the amendment of a mis-joinder of defen- dants 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 the right of the plaintiff to have his judgment against the defendant against whom the verdict has been obtained. (/?) 1326. The effect of marriage, death, and bankruptcy upon thi proceedings in an action is provided for and regulated by the {k) Blake v. Done, 31 Law J., Exch. S. 586. 102. (») Clay V. Oxford, L. R., 2 Exch. 54- (/) Garrard v. Guibelei, 34 Law J., C. (0) Rennison v. Walker, L. R., 7 Exch. P. 131 ; ib. 270. 143. (m) Sturgis y. Smith, 5 L. T. R., N. (/) Govett v. Radnidge, 3 East, 62. Sec. III.] NON-JOINDER AND MIS-JOINDER. 567 Common Law Procedure Act, 1852, 15 and 16 Vict. c. ^6, ss 135-142. The right of a personal representative of a deceased p,laintiff to continue the action by entering a suggestion of the death upon the record (s. 137), apphes only to such causes of action as would have survived to the personal representa- tive, 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 Campbells's Act, 9 & 10 Vict. c. 93 {q) (g) Flinn v. Perkins, 32 Law J., Q, B. la S68 THE LAW OF TORTS. [Ch. XXI. CHAPTER XXI. OF ACTIONS EX DELICTO, PLEADINGS, DEFENSES, AND EVIDENCE. Section I. — Of pleadings, defenses, ana evidence in actiins ex delicto. 1327. Of actions in the county court. 1328. The general jurisdiction of the county court. 1329. Copyright of design. 1330. Friendly soCtSties. 1331. Ouster of jurisdiction of county court in cases where the title to .land, &c., is in question. 1332. Recovery of possession of small tenemeHts in the county court. 1333. Equitable jurisdiction. 1334. Admiralty jurisdiction. 1335. Jurisdiction by consent. 1336. Waiver of objection to jurisdic- tion. 1337. Of actions in the superior courts — ^Joinder of different causes of action in the same suit. 1338. Requisites of the declaration. 1339. Statement of special damage. 1340. Several counts in declaration in respect of the same cause of action. 1341. Pleas. 1342. Pleas to the jurisdiction — Privi- leges of ambassadors. 1343. Plea of not guilty. 1344. Not guilty by statute. 1345. Of pleading several matters of defense. 1346. Traverses by the defendant. 1347. Traverses by the plaintiff. 1348. Requisites of special pleas. 1349. Fictitious and needless aver- ments in pleading. 1350. Defenses arising after the com- mencement of the action. 1351. Payment of money into court by way of compensation or amends. 1352. Plea of infancy in actions ex de- licti). 1353. Plea of accord and satisfaction. 1354. Plea of the pendency of another action for the same wrong. 1355. Plea of judgment recovered. 1356. Continuing injuries — Judgment recovered. 1357. Effect of the recovery of judg- ment in actions for the con- version of property. 1358. Recovery of judgment in rem. 1359. Plea of the bankruptcy of the plaintiff. 1360. Pleas of the statute of limita- tions. 1361. Commencement of the period of limitation. 1362. Extension of the period of lim- itation in certain cases. 1363. Equitable pleas and defenses. 1364. Joinder of issue. 1365. Pleadings construed distribu* tlvely 1366. New assignments. Section II — Proceedings aud evidence at the trial, 1367. Right to begin. 1368. Proof on the part of the plain- tiff. 1369. Effect of payment of money into court. 1370. Primary and secondary evidence. 1371. Notice to produce a written document to let in secondary evidence of its contents. 1372. Proof of facts resting on hearsay and reputation. Sec. I.] PLEADINGS IN EX DELICTO. 569 •373' Entries of deceased persons against their interest. 1374. Entries made by deceased per- sons in the exercise of their duties. 1375. Statements and declarations ac- companying an act. 1376. When the adverse party in a suit is estopped from giving evidence to contradict his ov^n statements and representa- tions to the plaintiff. 1377. Evidence of manorial customs. 1378. Evidence of title and seizin. 1379. Amendment of variances be- tween the declaration of the cause of action and the proof adduced in support of it. 1380. Admissions of liability. 1381. Illness of witness. SECTION I. OF PLEADINGS, DEFENSES, AND EVIDENCE IN ACTIONS EX DELICTO. 1327. Of actions in the county court, {a) — The 30 & 31 Vict. c. 142, enacts (s. l), that a plaint may be entered in the county court within the district of which 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 regis- trar, within which he dwelt or carried oh business within six months of the time of commencing the action, or, by the like leave, within which the cause of action wholly or in part arose. (/5) It has been held {c) that a railway company neither " car- ries 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 headquarters, i. e., at the place where its principal office 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 manufactured and sold, although the registered office of the company, where the board of directors meet, may be ' elsewhere, (e) If the company merely receives tolls elsewhere than at its registered office, as in the case of a bridge company, (a) See Pollock's County Court Prac- tice, 6th ed. (1868). (i) As to county court actions in Lon- don, see s. 3. {c) Under the repealed sections of the 9 & 10 Vict. c. 95. (\ 13 & 14 Vict. c. 61, s. I, except actions for malicious prosecution, libel, slander, or seduction ; 9 & 10 Vict. c. 95, s. 58. But by the 30 & 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 superior court. (/6) The substance, and not the form, of the cause of action, must be regarded in order to determine whether it is one of the ex- cepted actions. If, therefore, a plaint in the county court is in form founded on negligence, but is in substance a plaint for a (/) Aberystwith Pier Co. v. Cooper, 415. Aris v. Orchard, 6 H. & N. 160; 35 Law J., Q. B. 44. 30 Law J„ Exch. 21. See Bonsey v. (g) Corbett v. Gen. Steam Nav. Co., Wordsworth, 18 C. B. 325. 4 H. & N. 482. Minor V. Londj and (/) See Thornwell v. Wigner, L. R., 6 North-West. R. Co., i C. B., N. S. 331. Exch. 87. Oldham Bridge Co. v. Heald, 33 Law J., {k) See Owens v. Woosman, Owens v. Exch. 236. Jones, L. R., 3 Q. B. 469 ; 37 Law J., (h) Alexander V. Jones, L. R., I Exch. Q. B. 159. Kimbray v.. Draper, L. R., . 133- 3 Q. B. 160 I 37 Law J., Q. B. 80. 14.) Fuller V. Mackay, 22 Law J., Q. B. Sec. I.] PLEADINGS IN EX DELICTO. 571 malicious prosecution, the county court has no jurisdiction to hear and determine it; (/) unless it be remitted for trial under the above provision. The signing of the charge-sheet at a po- lice station is not necessarily the commencement of a malicious prosecution, at all events if the plaintiff is discharged when taken before the magistrates, 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) 1329. 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 com- mitted, for the recovery of the damages he has sustained by reason of such piracy ; but in any such proceedings the plain- tiff 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. («)' 1330. Friendly Societies. — 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 (1?) 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. (^) 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 deter- termining disputes under them. ($■) 1331. Ouster of jurisdiction of county court in cases where the title to land, &c., is in question. — The 58th section of the (t) Hunt V. North Staff., &c., Rail. Co., s. 9. 2 H. & N. 451. Rogers v. Macnamara, {0) See Shea v. United Assurance Soc. 14 C. B. 27 ; post, ch. 22. L. R., 3 C. P. 21. {m) Austin v. Dowling, L. R., 5 C. P. (/>) 18 & 19 Vict. c. 63, ss, 41, 42, 44. 514. (jf) Wooldridge, Ex parte, 31 Law J. (k) 21 & 22 Vict. c. 70, s. 8. As to Q. B. 122. See Skipton Industrial Co- proceedings in appeal or prohibition, see operative Soc. v. Prince, 33 Id. 323. ' In this country no such rule prevails. The declaration or complaint must .show a legal cause of action, and this involves the setting forth of such facts as show a legal and valid copyright interest in the plaintiff, and a clear infringement by the defendant. 572 THE LAW OF TORTS. [Ch. XXI. 9 & 10 Vict, c, 95, further excepted from the cognizance 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." {f) But the 30 & 31 Vict. c. 142, ss. II, 12, now provides, that actions of ejectment where neither the value of the land, &c., nor the rent payable 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 land to let by the owner, not the value of the plaintiff's interest in the land, as where he 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 titlis 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 which the title to any cor- poreal or incorporeal hereditament, toll, fair, market, or fran- chise comes in question, it will be observed, still remains. The mere assertion however, of a bona 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 mala fide or bona fide, {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 prima 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. (zw) 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 can not by his own decision give himself jurisdiction, and if he comes to a (r) Lawford v. Partridge, i H. & N. (»<) Emery, In re, 2 C. B., N. S. 423 1 621. 27 Law J., C. P. 2i6. (s) Elston V. Rose, L. R., 4 Q. B. 4. (») Marsh v. Dewes, 17 Jur. 558. («) Brown v Cocking, L. R., 3 Q. B. {w) Lilley v. Harvey, 5 D. & L. 648. 672. Sec. I.] PLEADINGS IN EX DELICTO. 573 wrong judgment, and improperly assumes jurisdiction, a pro- hibition will lie, {^) and he and his officers v;ill be responsible for their proceedings. The judge must of necessity determine the question of his jurisdiction for himself in the iirst 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 for himself; that the defendant broke and entered this (the plaintiff's) part of the cottage, and removed the furniture into a neighboring shed, affiirming that he had taken the whole cottage and would keep it; {z) where the plaint was for a year's rent of a house let by the plaintiff to the defendant, and the defense 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 bona fide defense 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 bona fide claim of ownership subject to a quit rent. {U) Where an action for false imprisonment was brought against the defendant for giving the plaintiff into custody for trespass- ing on his close and taking 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 imprisonment, 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 (») Elston V. Rose, supra. {a) Mountnoy v. Collier, i EU. & Bl. (y) Thompson v. Ingham, 14 Q. B.718; 630 ; 22 Law J., Q. B. 124. igLawJ., Q. B. 189. Brown v. Cocking, (^) Pearson v. Glazebrook, L. R., 3 lufira. Exch. 27. (2) Chew V. Holroyd, 8 Exch. 249 ; 22 (c) EversfieM v. Newman, 4 C. B., N. Law J., Exch. 95. S. 418. 574 THE LA W OF TORTS. [Ch. XXI. 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) provided 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 ^'here the nuisance existed, and a plaint was brought in the county court charging the defendant with certain expenses as being t>he owner of a ditch, and the defense 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 questioij of ownership which necessarily involved the question of title, {e) 1332. Recovery of possession of small tenements in the county court. — When the term and interest of any tenant of premises, the rent of which does not exceed ;^50 a-year, and upon which no fine or premium has been paid, has expired or been deter- mined 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, proceed for the recovery of such prem- ises, adding a claim for rent or mesne profit, &c. (/") He may proceed, also, in such cases, to recover possession by plaint in the county court where he has a right to re-enter for non-pay- ment of rent. (^) 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, {li) But the tenant, and those claiming under him, may show that the title which the landlord had at the time of the demise subsequently ( 1342. Pleas to the jurisdiction. — Privileges of ambassadors. — The accredited ambassadors of foreign potentates resident in (r) Chapman v. Rothwell, 27 Law J., {s) Mercer v. Stanbury, 25 Law ]., Q. B. 315 ; ante. Exch. 316 ; 2 H. & N. 155, n. it) 15 & 16 Vict. I,. 76. V. Stewart, 47 Me. 419 ; Teayanden v. Hetfield, 11 Ind. 522 ; but all damages that necessarily result from an act may be recovered under a general allegation ; Hitch- inson v. Granger, 13 Vt. 386 ; Laraway v. Perkins, 10 N. Y. 371 ; Stevens v. Syford, 7 N. H. 360. ' In New York, under the Code, the cause of action can only be set forth in om count, but any number oi causes of action may be embraced in the same complaint. ,582 THE LAW OF TORTS. [Cn. XXI. this country are not amenable to the jurisdiction of our civil tribunals. They can not be lawfully imprisoned in any civil proceeding, nor can their goods be taken in execution ; and if a writ is sued out against them, the defendant may defeat the action by pleading to the jurisdiction of the court, {u) In other cases, to repel the jurisdiction 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, {y) 1343. 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 committed by the defendant, and not of the facts stated in the inducement, and no other defense 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 negli- gence 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 execut- ing his orders, {z) If several wrongful acts are alleged in the same declaration, the plea of not guilty puts them all in issue. («) Where special damage is substantially the thing com- plained of, as in actions for verbal slander, where the words spoken are not actionable per se, the plea of not guilty puts in issue the existence of the special damage, {b) 1344. Not guilty by 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, by its preamble, confined to actions " for any matter done in pur- suance of, or under the authority of, the said acts." {c) 1345. Of pleading several matters of defense. — By the new rules of pleading it is provided, that in all actions for torts, all («) Magdalena St. Nav. Co. v. Martin, («) Mitchell v. Crassweller, 13 C. B. 28 Law J., Q. B. 310. 245. (v) Ld. Mansfield, Mostyn v. Fabrigas, (a) Card v. Card, 5 C. B. 632. Cowp. 172. \b) Wilby v. Elston, ante. iy] Reg. Gen. Hil. Term, 16 Vict., I (c) Carr v. Royal Ex. Ass. Co., I B.4 Ell. & Bl. App. Ixxxi. S. 956 ; 31 Law J., Q. B. 93. Sec. I.] PLEADINGS IN EX DELICTO. 583 matters in confession and avoidance of the cause of action shall be pleaded specially, as in actions on contract, (a^ 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 defense, upon an affidavit being made by him or his at- torney, if required by the court or judge, to the effect that he 15 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 license, and son assault demesne, may be pleaded together as of course, without 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 the same ground of answer or defense, 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 defense, 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 estabhsh a distinct ground of answer or defense, including those of the evidence as well as those of the pleading. (^) 1346. Traverses by the defendant. — The defendant may either traverse generally such of the facts contained in the (d) Reg. Gen. Hil. Term, i6 '^ict., i (/) 15 & 16 Vict.c. 76,3.86. Messiter Ell. & Bl. App. Ixxxi. V. Roe, 13 C. B. 162. W 15 & 16 Vict. c. 76, ss. 81, 84. (^) Reg. Gen. 16 Vict, i Ell. & BL App. Ixxix. 584 THE LAW OF TORTS. [Ch. XXI. declaration as might have been denied by one plea, or may select and traverse separately 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, {li) 1347. Traverses by the plaintiff. — The plaintiff, on the other hand, is at liberty to traverse the whole of any plea or subse- quent pleading of the defendant, by a general denial ; or ad- mitting some part or parts thereof, to deny all the rest, or to deny any one or more allegations. (/) 1348. 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, iji) 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. ^6, which enacts, that pleas capable of being construed distributively shall be taken distributively, for that has reference only to the finding of the jury upon the issues joined. (/) 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 non obstante veredicto, (ifi) In an action of libel, where the declaration sets out several distinct libels in different counts, the defendant can not plead one plea in justification of the whole, but must plead the truth of the libel to each count separately, (n) 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 defense, (h) 15 & 16 Vict., c. 76, ss. 76, 78. J., C. p. 224. Chappell v. Davidson, 18 \i) 15 & 16 Vict. c. 76, 5. 77. C. B. 194. But see Blagrave v. Bris'.. {k) Rogers v. Spence, 12 CI. & Fin. Wat. Co. i H. & N. 387. 718. (?») Lyne v. Siesfeld, i H. & N. 281. (/) Jervis, C. J., Gabriel v. Dresser, 15 (n) Honess 1. Stutbs, 7 C. B., N. & C. B. 627. Wilkinson v. Kirby, 23 Law 555 ; ante. Sec. I.] PLEADINGS IN EX DELICTO. 585 and the place is not described in the declaration, the defendant is bound to show it by'his pleading, {p) 1349. Fictitious and needless averments in pleading. — All statements which need not be proved, such as the statement of time, quantity, quahty, 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. (/) " 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 par- liament, or any other lawful means, had ceased to be a highway at the time alleged in the declaration, he simply puts in issue the fact of its being a highway at the time, without alleging the particular mode by which he intends to show, in proof, that it had before then ceased to be such. The certainty or particu- larity 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 specific 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) 1350. Defenses arising after the commencement of the action may be pleaded, together with pleas of defenses arising before the commencement 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 defense arising after the commencement {0) Webber v. Sparkes, lo M. & W. {q) Williams v. Wilcox, 8 Ad . & E, 487. Ellison V. Isles, 11 Ad. & E. 676. 333. (/) 15 & 16 Vict. c. 76, s. 49. (r) Reg. Gen. 16 Vict. I Ell. & B' App. Ixxxii. 586 THE LAW OF TORTS. [Ch.XXI. 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 defense therein set up arose before or after action, will be deemed to be a plea of matter arising before action, (j) I35I' Payment of money into court by way of compensation or amends. — :By 15 & i6 Vict. c. ^6, 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 defend- ants, to pay into court a sum of money by way of compensa- tion 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, to- gether with a plea of apology, may be made as mentioned. 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 hours, to sign judgment for such costs ; or the plaintiff may reply that the sum paid into court is not enough to satisfy the claim of 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 defend- ant is entitled to judgment and his costs of suit, {u) 1352. Plea of infancy in actions ex delicto. — -A plea of in- fancy constitutes no defense, 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 (j) 15 & 16 Vict. c. 76, a. 68. (a) As to the effect of a payment of \t) Newton v. Holford, 6 Q. B. 921. money into court in actions of tort, se« Aston V. Perkes, 15 M. & W. 385. post, s. a. Sec. I.] PLEADINGS IN EX DELICTO. 587 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, {v) ' 1353- Plea of accord and satisfaction. — Whenever the plaintiff has consented to receive, and has actually received, satisfaction and recompense for the injury he has sustainpd, 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 car- ried into execution is a good plea, {y) The ordinary form of a plea of accord and satisfaction is to the effect that, after the 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 chat- tels, 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 sus- tained 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 inter- nal injury in a railway collision, but was not aware of it, ip) Johnson v. Pye, I Sid. 258. Liv. 430. Adel. Loan Ass. v. Fairhurst, 9 Exch. (y) Andrew v. Boughey, Dyer. 75b. ' Infancy is a bar to all actions arising out of a contract, except for actual neces- saries, and this includes all actions for torts growing out of contracts, as actions for fraud, false representations, &c ; Bent v. Manning, 10 Vt. 225 ; Hyman v. Cain, 3 Jones (N. C.) in ; Hall v. Woods, 4 La. Ann. 85 ; but even upon such contracts the recovery is not confined to the contract, but only the value of the articles can be recovered if their actual value is less than the contract price, otherwise the contract price controls ; Passenger R. R. Co. v. Stutter, 54 Penn. St. 375 ; Hyer v. Hyatt, 3 Cr. C. C. (U. S.) 276. The rule is, that a contract to an infant's prejudice is void, Thile one that is for his benefit is merely voidable. He may affirm it or disaffirm it upon attaining his majority; Oliver v. Hoodlett, 13 Mass. 237 ; Wlieaton v. East, 5 Yerg. (Tenn.) 41 ; but for torts founded on positive wrongs, as trespass, trover bastardy, assault, and that species of wrongs that do not arise out of a contract, he is held liable the same as an adult ; Humphrey v. Douglass, 10 Vt. 71 ; Baxter v. Sush, 29 Vt. 465 ; Fitts v. Hall, 9 N. H. 441 ; Scott v. Watson, 46 Me. 362 ; Dist. V. Bragdon, 23 N. H. t^cq ; Conklin v. Thompson, 29 Barb. (N. Y.) 218 ; Chandler V, Com, 4 Met. (Ky.) 60 ; Towne v. Wiley, 23 Vt. 355. 588 THE LAW OF TORTS. [Ch. XXI. 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 in- jury to the clothes, {z) And in cases where the person injured has been induced by the false representations of the medical officers of the railway company to accept a small and almost nominal sum 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 satisfaction, or relying upon the receipt given at ^11. {of 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 compensation and amends for the damages that may have been sustained. 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 discharge 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 constitute 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 between 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 («) Roberts v. E. C. Rail. Co., I F. & Brighton Rwy., L. R., 5 C. P. 146- And F. 460. See Lee v. Lancashire and York- as to inspection generally, WooUey v lihire Rwy., L. R., 6 Ch. App. 527. As North Lond. Rwy., L. R., 4 C. P., 602; to accord and satisfaction for the injury 38 Law J., C. P., 317. Pape v. Listet, and all its consequences, Rideal v. Gt. L. R., 6 Q. B. 242. Mahoney v. Widows' \Vest. Rail. Co., Id. 706. As to inspec- Life Assurance Fund, L. R., 6 C. P. 252. ion of the reports of railway officials and Richards v. Gellatly, L. R., 7 C. P. 127. medical men to the company, see Baker (al Stewart v. Gt. West. Rwy., 2 De V. Lond. and South-West. Rail. Co., L. G. J. & S. 319. R.. 3 Q. B. gl. Cossey v. London and (b) Jones v. Sawkins, 5 C. B. 142. ' Stafford v. Bacon, i Hill (N. Y.) 132. Sec. I.] PLEADINGS IN EX DELICTO. 589 ans^ver, for it must be intended that the title deeds were the plaintiff's own title deeds, and then to deliver him his own deeds,- and put him in possession of his own land, was no sat- isfaction 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 satisfac- tion and discharge of the cause of action, and that the agree- ment has been completely performed, so that there is a total ex- tinguishment of the original cause of action. The plea, there- fore, must set forth an accord executed, showing a complete performance by the defendant of the substituted contract. \dy Where the defendant had slandered the plaintiff, and after the utterance of the slander the plaintiff and de- fendant met, and it was agreed that certain letters and doc (c) Bro. Abr. Accord, i. (d) Gabriel v. Dresser, 15 C. B. 622 ' An accord without satisfaction is no bar to an action ; Russell v. Lyttle, 6 Wend. (N. Y.) 390 : Ballard v. Nooks, 2 Ark. 45 ; Brooklyn Bank v. De Graun, 23 Wend. (N. Y.) 342 ; but where there is an accord with satisfaction, predicated upon a full and adequate consideration, it is a full bar. But in most of the states it is held that, where a debt is liquidated, and there is no dispute between the parties as to the amount due, an agreement to take a less sum, although it is actually paid by the debtor and received by the creditor in full discharge of the debt, is not a bar to s recovery of the balance. It does not operate as a satisfaction of the debt, because the agreement to take a less sum than vyas actually due is not predicated upon a consideration, and the amount paid only operates pro ianto as a discharge ; Warren V. Skinner, 20 Conn. 559 ; Daniels v. Hatch, 21 N. J". 391 ; Makepeace v. Harvard College, 10 Pick. (Mass.; 298 ; White v. Jordan, 27 Me. 370 ; Seymour v. Minturn, 17 Johns. (N. Y.) 169 ; Eve v. Mosley, 2 Strob. (S. C.) 203 ; Girser v. Cushner, 4 G. & J. (Md.) 305 ; Morse v. Hylton, I Div. (N. C.) 429 ; Sullivan v. Finn, 4 Greene (Iowa) 544; Higgins v. Halligan, 46 111. 173 ; University v. Walden, 15 Ala. 655 ; Mordecai v. Stewart, 36 Ga. 126 ; Harriman v. Harriman, 12 Gray (Mass.) 341 ; Beardsly V. Davis, 52 Barb. (N. Y.) 1^9 ; Miller v. Holden, 18 Vt. 337; but where there is a new consideration, as a new benefit received or burden imposed, an agree- ment, executed, to take less than the sum due, may be a bar, as where the agree- ment is predicated upon a payment iefore'the money under the original contract is due ; Rose v. Hall, 26 Conn. 392 ; Jones v. BuUett, 2 Litt. (Ky.) 49 ; Smith v. Brown, 3 Hawks (N. C.) 580 ; but in Kentucky the payment of a less sum, under an agreement that it shali discharge the whole debt, is held an accord and satisfaction ; Pepper v. Aiken, 2 Bush (Ky.) 254 ; so in Delaware ; Silver v. Reynolds, 2 Harr. (Del.) 275 ; so in Massachusetts it is held that an agreement to take less than the amount due on a note, if executed, and the note is delivered up to the payor, operates »s a discharge of the entire debt ; Bawker r. Childs, 3 Allen (Mass.) 34 ; so that such 590 THE LAW OF TORTS. [Ch. XXI. uments in the handwriting of the plaintiff, in the possession of the defendant, containing certain proofs against the plain- tiff of the truth of the charges made by the defendant, should be burnt, 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) 1354. Plea of the pendency of another action for the same wrong. — "The law abhors multiplicity of actions, and there- fore, whenever it appears upon 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, i^g) But the pendency of a suit in an inferior court, (/?) or in a foreign court, (i) can not 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 (e) Lane v. Applegate, i Stark. 97. As («') Cox v. Mitchell, 2g Law J., C. P, to an agreement for the making and ac- 33. Ostell v. Lepage, 5 De G. & Sm. 95. ceptance of a pnblic apology, Boosey v. Scott v. Ld. Seymour, 31 Law J., Exch. Wood, 34 Law J., C. P. 65. 457. Scott v. Pilkington, 31 Law J., Q. (/) Bac. Abr., Abatement, j\L B. 81. As to two actions for the same (f) Lev. Ent. 54, Sparry 's case, 5 Co. cause in the Admiralty Court in this 62a; Com. Dig. Abatement, H. 24. country and abroad, see The Mali Ivo, (h) Laughton v. Taylor, 6 M. & W. L. R., 2 Adm. & Eccl. 356. figs- payment will operate as a discharge if made before the money is due, or if made in the notes of a third person ; Brooks v. White, 2 Met. (Mass.) 283; so where it is agreed to iAs property in full payment, even though not worth more than one cent; Jones V. Bullitt, 2 Litt. (Ky.)4g. But it is not with the question as applicable to contracts that we are dealing, but as applicable to torts. In all such cases the dam ages are unliquidated, and, in the absence of fraud, the payment of any sum, how- ever small, under an agreement that it shall operate as a full discharge, will, when- executed, amount to an accord and satisfaction, and be a complete bar to an action for the same injury, however inadequate it may be ; so, too, where there are several joint wrong doers, a settlement with one operates as a discharge of all, and will be a bar to a recovery against the others ; Bank v. Curtis, 37 Barb. (N. Y.) 317 ; Ruth V. Turner, 2 H. & M. 38; Ellis v. Bitzer, 2 Ohio, 8g ; Stockton v. Frey, 4 Gill (Md.) 406 ; Phillip V. Kelly, 29 Ala. 628 ; R. R. Co. v. Reed, 37 111. 484 ; but an accord and satisfaction must be specially plead, and can not be relied on under the general issue ; Phillip v. Kelly, ante ; Kenyon v. Sutherland, g 111. gg ; and the plea must set forth a discharge of the claim by an executed agreement predicated upon a legal consideration. Sec. I.] PLEADINGS IN EX DELICTO. 591 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 can not 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 compelled to elect in which suit he will proceed, {ni) The court in many cases will relieve on motion where dif- ferent 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 sum- marily to prevent the plaintiff from seeking the same compen- sation a second time from another co-trespasser; but where the injury done is an injury to character from the publication of a libel, the court will not interfere in a summary way to prevent the continuance of proceedings against the publishei of the libel, on the ground that damages have been recoverec) by the plaintiff from another publisher of the same libel, as the nature and extent of the injury in each particular case depend upon the extent of the circulation of the libel. («) 1355. Plea of judgment recovered, (p) — Whenever judgment has been recovered in an action of tort, the judgment, if pleaded, is a bar to any subsequent action for the sanie wrong, " for you shall not bring the same cause of action twice to a final determination ; nemo debet bis vexari pro cadem causi ; and what is the same cause of action is, where the same evi- dence v/ill support both actions." (/) But by allowing judg- ment to go by default in an action to which there is a good defense, the defendant is not precluded from setting up such defense in any subsequent action in which the matter may arist; between the same parties, {q) In an action for slander you can not have an action twice over against the same person for the utterance of the same words on the same occasion, but (It) M'Murray v. Wright, II W. R. 35. (c) As to the effect of a foreign judg- Bissil V. Williamson, 7 Exch. 391. ment in rem, see Castrique v. Imrie, L. (/) Harmer v. Bell, 7 Moore, P. C. R., 4. Eng. & Ir. App. 414. 281. (f) Kitchen v. Campbell, 3 Wils. 304 ] ('») Simpson v. Sadd, 24 Law J., C. P. 2 W. Bl. 827. 156. {q) Hewlett V. Tarte, 31 L. J., C. P (») Martin v. Kennedy, 2 B. & P. 69, 150. 592 THE LAW OF TORTS. [Ch. XXI. every fresh 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 impufSitions 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 rec6vered judgment therein, (r) must contain in the margin thereof a statement 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 aie entered. In default of such statement, the plaintiff will 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 pro- ducing a certificate from the proper officer 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) ' (r) See Basham v. Lumley, 3 C. & P. {s) Reg. Gen. Hil. T., 16 Vict., R. lO ; 489 n. I Ell. & Bl. App. iii. ' A plea or answer setting up a former adjudication must set forth facts that show either that the matter in controversy was actually determined in a former suit, or that it might have been litigated under the issues joined therein ; Columbus, &c., R. R. Co. V. Watson, 26 Ind. 50 ; and so, where an award of arbitrators is plead in bar, it must show that the very matters embraced in the action are covered by the award ; Davison v. Johnson, 13 N. J. 112. The pendency of another suit for the same cause of action is matter of abate- ment, whether the other action is pending in another state or not, but, in order to hit effectual, tlie plea must show that the court has jurisdiction over the action ; Ex ■parte Balch, 3 McLean (U. S.) 221 ; Boswell v. Tunnell, 10 Barr. (Penn.) 958 ; James v. Dowell, 7 S. & M. (Miss.) 333 ; but the pendency of a former suit in the courts of a foreign country is not matter of abatement ; Williams v. Ayrault, 31 Barb. (N. Y.) 364 ; but a prior suit can not be abated by the bringing of a second action for the same cause ; the plea is only available when it sets forth the pendency of another action for the same cause before the bringing of the second action ; Hail- man v. Buckmaster, 8 111. 498 ; and the action must be between the same parties, and one in which a valid judgment can be obtained ; Cornelius v. Vanansdallen, 3 Barr. (Penn.) 434 ; and the parties must stand in the same relation in the former action. That is, the fact that the defendant had previously brought an action against the plaintiff, in which the same questions and issues are involved, is not a matter of abatement. New England Screw Co. v. Bleven, 3 Blatch. C. C. (U. S.) 240. Being matter of abatement, it must be plead before issue joined, or is treated as waived. Estep v. Larsh, 21 Ind. 190. The plea need not state that the former action is still pending. It is enough if it was pending when the suit was brought, and its subsequent discontinuance does not avail to cure the cause of abatement. Lee V. Hefly, 21 Ind. 98. Sec. I.] PLEADINGS IN EX DELICTO 593 If the record, when produced, shows on the face of it th,it 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 U verdict. (^) 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, was discharged therefrom before the end of the quarter, and then sued her master 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 quarter 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 substantially the same as that which had been adjudicated upon by the county court, viz., whether the dismissal was wrongful; that the deci- sion in the county court was conclusive between the parties, and could 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 conclusive between the parties, and not to allow the dispute as to the discharge being wrongful to be re- opened." («) 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, {v) If two commit a joint tort, the judgment against one is of itself, without execution, a shfficient bar to an action against the other for the same cause ; (^y) and whenever the cause of action in the two suits is identical, the recovery of judgment (/) Wadsworth v. Bentley, 23 Law J. {v) Bird v. Randall, 3 Burr. 1345. Q. B 3. (y) King V. Hoare, 13 M. & W. 504- («) Routledge v. Hislop, 29 Law J., 506 ; Brinsmead v. Harrison, L. S.., 6 M. C. 90. C. P. 584- 11.-38 594 THE LAW OF TORTS. [Ch. XXI. 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. («) If, therefore, two persons jointly con- vert goods, and one of them receives the proceeds, you can not, 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, (b) 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 him, the plaintiff may rectify the mistake in a second action, {c) " Where the declaration in the second action is framed in such a manner that the causes of action may be 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 investiga- tion 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 pjaiiitiff has failed through 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 can not afterwards be allowed to recover it in a second ac- tion. Recovery of judgment upon a contract with insurers against loss is, as we have seen, no bar to an action against ' (?) Slide's case, 4 Co. 94b. Phillips v. (c) Lampen v. Kedgewin, i Mod. Beriyman, 3 Doug. 288. 207. (o) Austin V. Mills, 9 Exch. 288 ; 23 {d) Bagot (Lord) v. Williams, 3 B. & Law J., Exch. 42. C. 239. (6) Buckland v. Johnson, 15 C. B. 161 ; (e) Seddon v. Tutop, 6 T. R. 609. 83 Law J., C. P, 204. Brown v. Wooton, (/) Carter v. James, 13 M. & W. 13' Cro, Jac. 73. Brinsmead v. Harrison, Howlett v. Tarte, 31 Law J., C. P. 146. *ttfm. Sec. I.] PLEADINGS IN EX DELICTO. 595 the wrongdoer 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 petit jury and trying to induce them' to find him guilty, {fi) Where the second action is founded upon some special damage flowing from the original wrong, a plea of judgment 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 pleaded in bar the recovery mentioned in the declaration, and averred it to be for the same assault and battery, and the plaintiff de- murred, 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 sub- sequent action for the same battery. (?) 1356. Continuing injuries — Judgment recovered. — But where the injury is of a continuing nature, the bringing of an action and the recovery of damages for the perpetration of the origi- nal wrong does not prevent the injured party from bringing a fresh action for the continuance 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 {g) Yates V. Whyte, 4 B. N. C. 282 ; (Ji) Guest v. Warren, 9 Exch. 379 ; 23 «•*. Law J., Exch. 121. («) Fetter V. Beale, x Salk, n. 596 THE LAW OF TORTS. [Ch. XXI. fresh action and recovering fresh damages for the continuance of the erection. If the defendant, 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 full 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 but- tresses on the land, to which the former recovery was no bar. ik) ■ 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 defendant 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 dam- ages, 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. (/) (k) Holmes v. Wilson, lo Ad. & E. (/) Shadwell v. Hutchinson, 2 B. & 503. Ad. 97. ' In all cases- where the injury is of a continuous nature, every new injury is a ground of action, and the person whose property is injured thereby may maintain separate and distinct suits therefor, each embracing all causes of action therefrom up to the time of action brought, and the pendency of a former suit is not a matter of abatement, for, althoagh the damage is only enhanced by the act complained of in the former actions, yet the cause of action is entirely distinct, and the damage there- from can not be recovered in the former suit. Cohocton Stove Co. v. R. R. Co., ja Barb. (N. Y.) 396 ; Clowes v. N. Staffordshire Potteries Co., L. R., 8 Ch. App. 102; Seclcwith n Griswold, 29 Barb. (N. Y.) 291. Sec. I.] PLEADINGS IN EX DELICTO. 597 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 ; (;«) 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 neighbor's stream, or of diminishing the supply of water to a neighbor's mill, 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 neighboring 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 can not recover against the other. (;«) 1357- Effect of the recovery of judgment in actions for the conversion of property. — We have already seen, that by a re- covery 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. (0) 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 payment of the damages, that changes the property. (/>) 1358. Recovery of judgment in rem is no bar to proceedings in personam, 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 in rem. Where there is a remedy both in personam and in rem a (ni) Clegg V. Dearden, 12 Q. B. 5gi. Holroyd, J., in Morris v. Robinson, 3 B. («) Rosewell v. Prior, 2 Salk. 460 ; 12 & C. 20&. Mod. 636. Brent v. Haddon, Cro. Jac. (/) Brinsmead v. Harrison, L R., 6 555- C. P. 584. (#) Cooper V. Shepherd, 3 C. B. 272 ; ( f ) Nelson v. Couch, 33 L. J., C. P. 46. 598 THE LAW OF TORTS. [Ch. XXI. person who has resorted to one of the remedies may, if he does not thereby get fully satisfied, resort to the other, (r) 1359. Plea of the bankruptcy 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 obtained for that purpose, within such reasonable time as the judge may order, but the proceed- ings 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 defend- ant may, within eight days after such neglect or refusal, plead the bankruptcy. 1360. Pleas of the Statute of Limitations. — By 21 Jac. i,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, all actions upon the case, and all actions of assault, menace, battery, wounding, and imprison- ment, or any of them, shall be commenced within the time and limitation thereafter 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 after the cause of such actions or suit, and not after ; and the said action of trespass, 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 judgment be given against the plaintiff, that he take nothing by his plaint or writ, the plaintiff, 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 imprison- ment at the time of the accrual of the cause of action, is no (r) Yeo V. Tatem, L. R., 3 P. C. C. 696. Sec. I.] PLEADINGS IN EX DELICTO. 599 longer to have the effect of extending the period of limitation. This section is retrospective, (s) ' 1361. Commencement of the period of limitation. — The time of limitation 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 run, 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 which 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 immediate apparent injury to the surface, but damage ultimately ensues, 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. {{) " Whenever one (s) Cornill v. Hudson, 8 E. & B. 429 ; Q. B. 378 ; 34 ib. Q.B. 181. Ld. Wens- 27 Law J., Q. B. 8. Pardo v. Bingham, leydale, Rowbotham v. Wilson, 8 H. L. L. R., 4 Ch. App. 735. C. 359 ; 30 Law J., Q. B. 965. See (/) Bononi v. Backhouse, 28 Law J., Smith v. Thackerah, L. R., i C. P. 564. ' If the Statute of Limitations is relied upon as a matter of defense, it must be specially plead in bar, and can not be insisted on under the general issue. It is a personal privilege of the party pleading it, and unless plead is treated as waived ; Bank v. Waterman, 26 Conn. 324 ; In re Young's Estate, 3 Md. Ch. 461 ; Spear v. Griffin, 23 Md. 418 ; Partridge v. Mitchell, 3 Edw. Ch. (N. Y.) 180 ; and the statute of ih^ forum is alone available. The fact that the parties reside in New York, and the cause of action is barred under the Statute of Limitations there, will be of no avail if an action is brought in another state, and the court has jurisdiction of the defendant ; unless the statute of the forum has run upon the claim, it is no bar ; Med- bury V. Hopkins, 3 Conn. 472 ; Blackburn v. Morton, 18 Ark. 384 ; Upton v. Hunter, 2 W. Va. 83 ; Thompson v. R. R. Co., 36 Barb. (N. Y.) 79 ; but in Ohio, by special statute passed in 1830, no action can be maintained in the courts of that state upon which the statute has run in another state ; Worth v. Wilson, Wright (Ohio), 152 ; Horton V. Homer, 14 Ohio, 437 ; and so in Texas ; Bryton v. Bouton, 10 Tex. 62 ; Thompson v. Berry, 26 Id. 263 ; Kentucky ; Cargile v. Harrison) 9 B. Mon. (Ky.) 518 ; Massachusetts ; Halsey v. McLean, 12 Allen (Mass.), 439 ; but the statute bar must be perfected in such other state. The statute does not run against the state ; State V. Joiner, 23 Miss. 500; Lenasser v. Washburn, ii Gratt. (Va.) 572; Alton V. Transn. Co., 12 III. 38 ; U. S. v. White, 2 Hill (N. Y.) 59 ; but it does run against a municipal corporation the same as against an individual ; County v. Powell, 22 Mo, 525 ; nothing less than sovereignty exempts a party from its opera- tion ; Lane v. Kennedy, 13 Ohio St. 42, ' Whenever an injury is complete as a legal injury, however slight, the statute begins to run. But, although the promoting cause of the injury may nave preceded the injury itself for a long time, the statute does not commence to run until an actual 6oo THE LAW OF TORTS. [Ch. XXI. person does anything or permits anything to be done on his own land which causes injury to his neighbor, and the injury is of a continuing nature, the cause of action, as we have seen, continues, and is renewed, de die in diem, as long as the cause of the continuing damage is allowed to continue. If a man, by digging and constructing basins and canals on his own land, legal injury ensues \ Bank v. Waterman, 26 Conn. 324 ; by legal injury is meant such injury as entitles a party to maintain an action, even though the damage is merely nominal ; therefore, where the injury is such that a right of action accrues, the statute begins to run from that time, however slight the damage ; Richman v. Richman, 10 N. J., 114 ; Jones v. Conway, 4 Yeates (Penn.) 109 ; Hardee v. Dunn, 13 La. Ann. 161. In an action of trover, where the conversion is dependent upon a demand and refusal, the statute does not begin to run until after demand, but where no demand is necessary, the statute begins to run from the time of conversion ; Cadman v. Rogers, 10 Pick. (Mass.) 112 ; Read v. Markle, 3 Johns. (N. Y.) 523. The fact that the injurious consequence is not known, does not prevent the operation of the statute from the time when the injury was done and a cause of ac- tion accrued ; Gastin v. Jefferson, 15 Iowa, 185 ; but the injury must be complete as a legal injury. Thus in Polly v. McCall, 37 Ala. 20, the defendant diverted the water of a brook by means of a ditch and hole, which, when first constructed, pro- duced no injury to the plaintiff's estate, except at times of extraordinary floods. In time, however, the ditch became partly filled with sand, and set the water back upon the plaintiffs land, and flooded it. The court held that the statute only began to run from the time when legal injury was inflicted upon the plaintiff, and hence the defendant could not claim by prescription except from the time when such injury accrued. See also Mitchell v. Mayor of Rome, 49 Ga. 19 ; Napier v. Bulwinkle, 5 Rich. (S. C.) 311. In cases of fraud, in equity, the statute only begins to run from the time when the fraud was discovered hy i'hs person Aehaxiiei. Bricker v. Lightner, 40 Penn. St. 199 ; Mayne v. Griswold, 3 Sandf. (N. Y.) 463 ; Donnelly v. Donnell, 8 B. Hon. (Ky.) 113; Curry v. Allen, 34 Cal. 254; Shields v. Anderson, 3 Leigh. (Va.) 729 ; Longworth v. Hunt, 11 Ohio St. 194; Haywood v. Marsh, 6 Yerg. (Tenn.) 69 ; Raymond v. Simonson, 4 Blackf. (Ind.) 77 ; Craft v. Arthur, 3 Dessan ^S. C.) 223 ; Stocks V. Leonard, 8 Ga. 511 ; Wilson v. Ivy, 32 Miss. 233 ; but at law, the limita- tion begins to run, except where saved by statute, from the commission of the fraud ; Ellis v. Kelso, 18 B. Mon. (Ky.) 296 ; except in cases where a relation of trust and confidence exists ; Wilson v. Ivy, 32 Miss. 233 ; Nudd v. Hamblin, 8 Allen (Mass.), 230 ; Cooledge v. Allcock, 30 N. H. 329, A fraudulent concealment of the origin, or of the cause of action itself, is a good reply to a plea setting up the statute of limita- tions ; Allen v. Mille, 17 Wend. (N. Y.) 202 ; McKown v. Whittemore, 31 Me. 448 ; Turnpike v. Field, 3 Mass. 201 ; Smith v. Bishop, g Vt. no ; Douglass v. Elkins, 28 N. H. 25 ; Hoyle v. Jones, 35 Ga. 40 ; Kane v. Cook, 8 Cal. 449 ; but mere ignorance of one's rights does not affect the operation of the statute ; it must, in order to repel its force, be an ignorance induced by the fraud of the defendant, and such as would not have been discovered by the exercise of due diligence on his part ; Martin v. Bank, 31 Ala. 115 ; Bossard v. White, 9 Rich. (S. C.) 483 ; R. R. Co. v. Bridges, 7 B. Moh. (Ky.) 556. Sec. I.] PLEADINGS IN EX DELICTO. 6oi causes a stream of water to flow against his neighbor's wall, and gradually to undermine 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. (?<)' And if a man, by digging on his own land, wrongfully lays open the foundations of his neighbor'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 all 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 limitation runs from the time that special damage accrues, and not from the time of the utterance of the w'ords. (j/) Where an action is brought against a justice of the peace for a false and malicious imprisonment, every continuance of the imprisonment de die in diem is, in point of law, a new im- prisonment, 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 practiced by the defendant in order to conceal that knowledge from the plaintiff. («) Thus, in actibrts for negligence or for a breach of duty, the cause of action ac- crues 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 injurious consequences thereof do not come to the knowledge of the principal until (a) Gillon v. Boddington, Ry. & M. {y) Saunders v. Edwards, i Sid. 95 ; 161. see ante. (v) Roberts v. Read, 16 East, 217. (2) Hardy v. Ryle, 9 B. & C. 608. {x) Whitehouse v. Fell, 30 Law J., C. Massey v. Johnson, 12 East, 68. P. 305. (a) Granger v. George, 7 D. & R. 730 ; 5 B. & C. 149. ' Ludlow V. H. R. R. Co., 6 Lans. (N. Y.) 128 ; Webb v. Bird, 13 C. B. (N. S.) 843 ; Elliott V. N. E. R. R. Co., 10 Ho. Lord's Cas. 3S3 ; but, contra, see Kerns " Schoonmakor, 4 Ohio, 331. 6o2 THE LAW OF TORTS. [Ch. XXI, after the lapse of six years from the occurrence of the wrong- ful act, the right of action of the principal is barred. (J?) But in actions of detinue, where the^ defendant has goods under his charge under an implied contract to re-deliver them on re- quest, and has wrongfully dealt with them without the knowl- edge 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 breach of duty by refusing to redeliver on request, (c) 1362. 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 limitation 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 reason- able 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, {dy 1363. Equitable pleas and defenses. — 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 en- titled to relief against such judgment on equitable grounds, to plead the facts which entitle him to such relief by way of de- fense, and these courts are thereby empowerd to receive such defense by way of plea, provided that such plea shall begin with the words " for defense on equitable grounds," or words to the like effect. Any such matter (s. 84) which, if it arose be- fore 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 (b) Howell V. Young, 5 B. & C. 265. (d) Curlewis v. Mornington, 27 Law (rt M ilkinson v. Verity, L. R., 6 C. P. J., Q. B. 439. 206, ' For instances where the statute is suspended, see the statutes and decisioM in each state. Sec. I.] PLEADINGS IN EX DELICTO. 603 period during which it could be pleaded, be set up by way of auditi querela. 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 equitable plea, or equitable replication, can not 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 uncon- ditional and perpetual injunction in equity to restrain an action in respect thereof, may, under this statute, be pleaded by way of equitable defense; but if the matters of defense are not such as to entitle the defendant to unconditional relief, they Can not be made the foundation of a good, equitable plea. (1?) Where the plaintiff complained of three grievances, one relat- ing 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 defense that the whole of the grievances complained of arose from the pulling down of an ahcient house, and the building of another mes- suage on the site of it, and that the acts causing the grievances complained of were dohe with the knowledge, consent, and ac- quiescence 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 defense ; 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 representations of the de- fendant, that none of the grievances complained of would take place if the plaintiff w6uld give his consent as alleged. (/) 1364. 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 de- nial of the substance of the plea or other subsequent plead- (e) Hyde v. Graham, Wakley v. Frog- (/) Davies v. Marshall, anle. RawU gatt anle. ins v. Wickham, 3 De G. & J. 304. 6o4 THE LAW OF TORTS. [Ch. XXI ing 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 & i6 Vict. c. y6, 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 as- signment, must still be so pleaded, {g) 1365. Pleadings construed distributively. — Pleas of payment and set-off, and all other pleadings capable of being construed distributively, are to be taken distributively ; and if issue is taken thereon, and so much 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 shall be answered, and for the plaintiff in respect of so much of the causes of action as shall not be answered. (/«) 1366. New assignments. — " Where the defendant answers what may reasonably be considered the gist of the trespass described in the declaration, it will 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." (?) 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 justifiable, the plaintiff should by his replication make a new assignment, showing the trespasses for which the plaintiff proceeds, (i) {g) Glover v. Dixon, 9 Exch. 159, note to Taylor v. Cole, I Smith's L. C. Huddart V. Rigby, eV/ra. 115, 6th. ed. Lambert v. Hodgson, I {h) 15 & 16 Vict. c. 76, s. 75. Reg. Bing. 319. Gen. Hil. Term, 16 Vict., No. 62 ; I EU. {k) See the notes to Greene v. Jone*, & Bl. App. xiii. Patterson v. Harris, 31 I Saund. 2gq. Robertson v. Gauntlstt, Law J., Q. B. 277. 16M. &W. 297. Huddart V. Rigby, ' (i) Monprivat v. Smith, 2 Campb. R., 5 Q. B. 139. 76. As to new assignment, see the Sec. I.] PLEADINGS IN EX DELICTO. 605 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 plaintiff 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 on other parts of his close, he should have so stated by a new assign- ment. (/) The object of a new assignment, therefore, is to correct a mistake 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 de- claration, setting forth the true ground of complaint, as being different from that which is covered by the plea. {iit) The 15 &16 Vict. c. ^6, ss. 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, {ri) 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 tres (/) Bracegirdle v. Peacock, 8 Q. B. E. 671. Lancashire Waggon Co. v. Fitz- t86. hugh, 6 H. & N. 502. (»«) Stephens on Pleading, pp. 205, («) Rogers v. Spence, 12 CI. & Fin 2o6, jth ed. Ellison v. Isles, 11 Ad. & 719. 6o6 THE LAW OF TORTS. [Ch. XXI. pass, 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 was decisive against the plaintiff, and that the defendant was entitled to a verdict, (o) SECTION II. PROCEEDINGS AND EVIDENCE AT THE TRIAL. 1367. Right to begin. — The sixteen judges have made a res- olution 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 his 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 can not afterwards do so. (r) 1368. Proof on the part of the plaintiff.- — If a declaration discloses a state of facts upon which an action may be main- tained, although there be neither malice nor fraud, the plain- tiff 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 willfully may be made responsible for the act and its consequences, whether done willfully or not. (j) (») Anon, cited 16 East, 86. Oakley (") Strother V. Barr, 5 Bing. 151. See Macdonnell v. Evans, II C. B. T3tt Fenn v. Griffiths, 6 Bing. 533. Augustien Darby v. Ouseley, i H. & N. 6. Sec. II.] PLEADINGS IN EX DELICTO. 609 of the copyright in England, no such copies being produced in court, and no proof being given that they could not have been produced. («) But this rule did not of course apply to oral statements. ( b) And a witness may now be cross-examined as to previous statements made by him in writing, or reduced into writing, relative to the subject-matter of the cause, without such writing being shown him ; but if it is intended to contra- dict 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 an- swer the question, {d) A party to the cause is also allowed to affect his own rights by parol admissions respecting the contents of written docu- ments, if he chooses to answer the questions that may be put to him respecting them. {/) Thus, where in an action for fraud- ulent misrepresentation as to the price which certain seed would command in London, whereby the plaintiff had been in- duced 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 ac- tion 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 proceeding, 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 wri- ting 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 oflaw that the best evidence is to be produced, yet that rule is not to be taken literally, for, with respect to evidence of a per- (a) Boosey v. Davidson, 13 Q. B. 267. (d) Henman v. Lester, infra. , (0) Crowley v. Page, 7 C. & P. 789. W Ante. (c) 17 & i8 Vict. c. 125, ss. 24, 103. (/) Henman v. Lester, 12 C. B.,N.S Sladden v. Serjeant, I F. & F. 323. 789 I 3i Law J., C. P. 370. 11.-39 6io THE LAW OF TORTS. [Ch. XXI. son holding an office, such as constable, or holding any official character or appointment, it is not necessary to produce the actual appointment, though it be made under seal. It is suffi- cient 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." (^) Evidence, also, of persons being trustees or commission- ers of turnpikes and excise officers, may be given b\' proof of their having acted as such, without proof of thtir appoint- ment, iji) Further, the adverse party to a suit may have so treated and dealt with a copy of an original document, as to have ad- mitted the truth of the contents of the copy, and rendered it receivable as primary evidence against him by way of an admis- sion. 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 evi- dence against him, although it purport to be a copy of the decree of the Court of Chancery, [i) So in an action of re- plevin, 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. (/&) 1371. 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 docu- ment is seen in court at the trial, in the hands of the adverse party or his attorney, notice to produce it at once is all that is required, {f) 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 (g) Brewster v. Sewall, 3 B. & Aid. {i) Price v. Woodhouse, 3 Exch. 616. 302. Dexter V. Hayes, 11 Ir. C. L. R. {k) Richards v. Morgan, 33 Law J. 106. Q. B. 115. . iji) 3 Geo. 4, c. 126, s. 134 ; 7 & 8 Geo. {t) Snelgrove v. Stevens, Car. & M. 5o8i 4, c. 53, s, 17. Dwyer v. Collins, 7 Exch. 639. Sec. II.] PLEADINGS IN EX DELICTO. 6ii evidence of the warrant of distress, and the defendant proved that it had been handed over to the Commissioners of Excise pursuant to the statute, it was held that secondary evidence of its contents was not admissible, (in) However, various instances may be mentioned where notice to produce a writing is unnecessary in order to let in secondary evidence of its contents. Tliis is the case where the instru- ment produced and that to be proved are duplicate originals ; where the instrument to be proved is a notice, such as a notice to quit; («) also where, from the nature of the action, the opposite party must know that he is charged with the possession of the document, as where the action is brought for recovering possession of the instrument itself. () Price V. Severn, 7 Bing. 319. (J) Jones v. Sparrow, 5 T. R. 857. Sec. I.] DAMAGES AND COSTS. 657 cumstance has been overlooked by the jury, and excessive and liisproportionale damages have been given, the court will allow the matter to be revised by another jury, [m) And when a Jefendant against whom excessive damages have been recov- ered appears to have been acting in the discharge of some duty, or in the intended execution of an Act of Parliament, or '\n the bona fide exercise of some power or authority which he ^supposed that he pos.-^cssed, and intended to act right, but by mistake did wrong, and the damages are manifestly out of all proportion to the injurv actually sustained, the court will inter- fere and grant a new hic^l for the purpose of confining the tlamages within moderate a. id reasonable limits, {n) 1398. New trial on accost n^ of the sinalliiess of the damages. — 'V new trial will sometimes be granted in actions ex delicto for s;mallness of damages, when it appears that if the plaintiff is entitled to a verdict at all he is manifestly entitled to much gr.;ater damages than have been given by the jury. Thus, where it v/as proved that by reason of the defendant's negli- gence in driving an omnibus the plaintiff was run over and his thigh broken, and that the doctor's bill for setting his leg and attending upon him came to ;^io 5s. 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 estimating 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. (/>) 1399. 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 recov- erable, and damages are assessed generally, so that the plaintifif has recovered more damages than he ought, judgment will be arrested. (^) Where the plaintiff declared against the defend- ant for seducing the plaintiff's apprentice from his service, and for the loss of the service of the apprentice for the whole resi- due of the term of apprenticeship, and the jury assessed the damages generally, and it appeared that the term was not ex- pired, judgment was arrested on the ground that the plaintiff • (m) Buller, J., in Duberly v. Gunning, {d) Armytage v. Haley, 4 Q. B. 918. 4 T. R. 658. (/) Strafford's case, cited 4 T. R. 655. («) Eliot V. Allen, i C. B. 40. (?) Prince v. IMoIt, 2 Salli. 663. II.— 43 6s 8 THE LAW OF TORTS. [Ch. XXII. 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 mas- ter may compel the apprentice by law to serve him for the residue of the term, and the plaintiff ought not to have both the service and damages for the loss of it. {f) "The cases seem to establish this principle, that where it is positively and expressly averred in the declaration that the plaintiff has sustained damages from a cause subsequent to the commencement of the action, or previous to the plaintiff's hav- ing any right of action, and the jury give entire damages, judg- ment will be arrested ; but where the cause of action is prop- erly laid, and the other matter either comes under a scilicet, or is void, insensible, or impossible, and therefore it can not be in- tended that the jury ever had it under their consideration, the plaintiff will be entitled to his judgment." {$) The plaintiff can recover no more damages than he has (claiinaed in his declaration, although the jury give him more, for he best knows the measure of his own wrong, and the amount of compensation 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, {ty 1400. Inquisition of damages before the sheriff. — When^judg- ment has been suffered by default in an action of tort, a writ of inquiry must be issued for the summoningof a jury, and the assessment of the damages before the sheriff, (u) 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 foi 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 in- (»■<) Hambleton v. Veere, 3 Wins. Saund. 171c, in notis. Saund. 170. (/) Cheveley v. Morris, 2 W. Bl. 1300. is) Hambleton. v. Veere, 3 Wms. («) Chit. Arch. Pr., Inquiry. ' But in such cases the error may be cured by remittitur at the same time. Lin- der V. Monroe, 33 111, 388 ; Taylor v. Jones, 42 N. H. 25 ; Collins v. R. R. Co., I* Barb, (N. y.) 492 ; Starbird v. Eaton, 42 Me. 569 ; Glen v. Davis, 2 Grant's casei, (Penn,) 153 ; Cross v. Wilkins, 43 N. H. 332 ; Ashmore v. Charles, 14 Rich. (S, C.) 63 ; Eanney v. McRae, 14 Ga. 589. Sec. II.] RECOVERY OF COSTS. 659 elude in their verdict damages which are not legally recover- able, the court will set aside the inquisition, {x) unless it appears that no objection was taken by the defendant, and that both parties mutually consented to take the verdict of the jury upon the matters submitted 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 RECOVERY OF COSTS IN ACTIONS EX DELICTO. 1401. Award of costs to a successful plaintiff in the superior courts. — The expenses that a party has incurred in obtaining his right, such as the fees of counsel, the attorneys' bills, and the expenses of witnesses, are 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 generale of dam- ages." {y) ' By the statute of Gloucester, 6 Ed. i, c. I, 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. {£) 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, be judged insufficient, costs shall be given at (jt) Penny, In re, 7 Ell. & Bl. 668 ; 26 (z) Jackson v. Calesworth, i T. R. 72. Law J., Q. B. 225. As to costs in actions of ejectment, see {)<) Per Ld. EUenborough, C. J., Phil- New Pleading Rules, Hil. Term, 1853, lips V. Bacon, 9 East, 303 ; Co. Litt. R. 29 30 ; Ell, & Bl. Appendix, Ixxxiii. 257 a. As to costs in error, see Parker Mobbs v. Vandenbrande, 33 Law J., Q. V. Tootal, L. R., i Exch. 41, 115. B. 177. Cole on Ejectment. ' The subject of costs, being a matter of statutory regulation, the bringing together of special cases in this chapter would be of no practical value. 66o THE LAW OF TORTS. [Ch. XXII. 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 mat- ter, {a) ■ . 1402. 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 of- fense 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. I, c. 3, enacts (s. 2) that if any person shall commence any action of trespass or ejectment, or any other action whatsoever, wherein the plaintiff or demandant might have costs, in case judgment should be given for him, and the plaintiff or demand- ant 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 plaintiff, if successful, would be entitled to costs. iU) By 8 & 9 Wm. 3, c. 11, s. i, it is further enacted, that where several persons shall be made defendants to any action or plaint of trespass, assault, 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 sha|l sue a writ of error, and the judgment shall be affirmed, or the writ be discontinued, or the plaintiff shall be nonsuited, there- in, 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 (fl) As to costs under this statute, see (i) Cobbett v. WHeeler, 30 Law. J., Qi Partridge v. Gardner, 4 Exch. 306. B. 64. Howell V. Rodbard, ib. 31!. Sec. II.] RECOVERY OF COSTS. 66i 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 shall 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 his 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 judgrnent 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 defense, {c) 1403. Costs on plea setting up matters of defense which have arisen since the last pleading. — It seems that formerly, if a de- fendant pleaded puis darrein continuance, that pleading operated as a withdrawal of all other pleas, and the defense rested on this alone, so that the plaintiff 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 according- ly given the plaintiff his costs up to the time of pleading the plea, if he admits the truth of it. {d) 1404- Costs on a stay of proceedings. — Upon . a summons to stay proceedings, on payment of a certain sum and costs, if the plaintiff refuses to take the amount offered in discharge of his {c) Redway v. Webber, 13 C. B., N. arth v. Brown, 32 Law J., Exch. gg. S 254. Bennett v. Lond. and North- West. RaiL {d) Reg. Gen. Trin. Term, 1853, R. Co., 5 H. & N. 604 ; 2g Law J., Exch. 82. 23 ; I Ell. & Bl. App. Ixxxii. How- 473. 662 THE LA W OF TORTS. [Ch. XXII. claim, but afterwards accepts it, there is no absolute rule which entitles the defendant to his costs incurred subsequently to the summons, {e) 1405. Costs on arrest of judgment, or judgment non obstante veredicto. — By the Common Law Procedure Act, 1852, 15 & 16 Vict. c. y6, it is enacted (s. 145), that upon arr'est 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 v.'hich such party shall have succeeded, 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. (/) 1406. Where the court has 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 can not give judgment for costs, {g) unless it is empowered so to do by express statutory authority. (Ji) 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 satisfaction of the court, it shall be law- ful for the judge to nonsuit the plaintiff, or to give judgment for the defendant, and, in case where the defendant shall ap- pear and shall not admit the demand, to award to the defend- ant 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 Tionsuit and award costs when the case is out of his jurisdic- tion, for the plaintiff might be able conclusively to prove the cause of action brought before the court, but for the objection to the jurisdiction on the part of the defendant. Under such circumstances the court has merely power to declare its own incompetency to try the cause, and to direct that the suit shall abate, the plea to the jurisdiction being a plea in abatement of the suit. " We are of opinion," observes POLLOCK, C. B., " for the same reason, that the provision over costs in the 88th sec- tion of the same Act only applies to cases within the jurisdic- tion of the county court to hear and determine." (?) (e) Walton v. Brown, 3 H. & N. 879. 47. Isle of Wight Ferry Co. v. Ryde (/) Whaley v. Laing, 5 H. & N. 480. Com. &c., 7 L. T. R. N. S. 391. (g) Strader v. Graham, 18 How. Rep. (k) 8 & 9 Wm. 3, c. 30, s. 3; 12 & 13 Supreme Court, U. S. 602. Reg. v. Vict. c. 45, s. 6. Justices of Hampshire, 32 Law J., M. C. (i) Lawford v. Partridge, I H. & N. 626 ; 26 Law J., Exch. 147. Sec. II.] RECOVERY OF COSTS. 663 1407. 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 circumstances 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. (/) 1408. Costs in actions of slander and libel. — By 21 Jac. i, 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 dam- ages under 40J., the plaintiff shall have and recover only so much costs as the damages so given or assessed amount untu. In the construction of this statute it has been held, that where the words are in themselves 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 conse- quently entitled (independently of the County Court Acts), to full costs, though the damages are under 40J., for it is not 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 dam- ages are under ops. there should be no more costs than dam- ages, fqr the action is properly an action for words within the statute. (?«) 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 guilty and a justifica- tion, 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 plaintiff was entitled to his full costs upon the second issue under the statute of Anne. («) Nor does the statute apply, it seems, to actions referred before trial, and (i) Stodhart v. Johnson, 3 T. R. 657. (?«) Burry v. Perry, 2 Ld. Raym. 1588. (/) Gibbs V. Ralph, 14 M. & AV. 804 ; Brown v. Gibbons, lb. 831 ; I iialk. 236. 15 LawJ., Exch. 7. Harries v. Thomas, (») Slcinner v. Shoppee, 8 Sc. 276; 6 « M. & W. 38. B. N. C. 131 664 THE LAW OF TORTS. [Ch.XXII, where therefore there is no verdict. 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 20^. {0) The 3 & 4 Vict. c. 24, s. 2, enacts, that if the plaintiff in any action on the case recovers less than 4.0s. damages, he shall not be entitled to any costs, unless the judge or presiding officer certifies in manner therein provided that the grievance was willful and malicious. This section, however, does not conflict with the 21 Jac. i, 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 ef- fect 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 applies, this would give the plaintiff his full costs, but where the right under the statute of Gloucester is qualified by any subsequent statute (by the County Court Act, for instance), the certificate under 3 & 4 Vict. c. 24, leaves the plaintiff with that qualified right. A plaintiff, therefore, in an action for slan- der, who has obtained a certificate under 3 & 4 Vict. c. 24, s. 2, that the slander was willful and malicious, and under 30 & 31 Vict. c. 142, s. 5, that there was sufficient reason for bringing the action in a superior court, is nevertheless only enti,tled to the same costs as he would have been entitled to if those statutes had not been passed, i.e.^ independently of 21 Jac. i, d. 16, to full costs, but under that statute to as much costsonly as damages. (/>) Where, therefore, the words giving rise to an action of slander are not actionable in themselves, and the ac- tion is maintainable only by reason of special damage, the cer- tificate 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 40^. into (0) Frean v. Sargent, 2 H. & C. 293 ; L. R., 5 Q. B. 239. 32 Law J., Exch. 281. (?) Burry v. Perry, ut sup. Turner ▼ {p) Evans v. Rees, 9 C. B., N. S. 391 ; Hoiton, Barnes, 132 ; Willes, 438. Foster 30 Law J., C. P. 16. Goodall v. Ensell, v. Pointer, 8 M. & W. 398 ; i Wms. 2 Cr. M.' & R. 249. Marshall v. Martin, Saund. note to Craft v. Boite, 246 a. Sec. II.] RECOVERY OF COSTS. 665 court, and the jury found that the apology was not sufficient, but that the money paid into court was sufficient to cover the damage sustained, and thereupon the judge directed a verdict for 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 defend- ant 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) 1409. When the certificate of a judge or presiding officer is necessary to enable the, plaintiff to recover costs. — By the 43 Eliz. c. 6, s. 2, it was enacted, that in any personal action in the su- perior 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. i, 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 ar« concerned, if) 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 ^os. damages, the plaintiff shall not be entitled to recover any costs whatever, whether it shall be given upon an issue tried, or judgment shall have passed by default, unless the judge or presiding officer before whom such verdict shall be obtained, shall immediately 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 willful and malicious. (r) Lafone v. Smith, 4 H. & N.. 158. circumstances, in actions of detinue, Newton v. Rowe, i C. B. 187. which is in foim an action ox Gontiactu, (s) Jones V. Macliie, L. R., 3 Exch. I. though the gist of the action is the (0 See Danby v. Lamb, II C. B., N. wrongful detainer. S. C. S. 423 ; except, perhaps, under certain 666 THE LAW OF TORTS. [Cil. XXII. 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, (w) 1410. Certificate that the action was brought to try a right. — Wherever a defendant in an action for a trespass upon the plaintiff's land sets up a bona fide claim to the £njoyment of some easement, privilege, or profit thereon, such a right to take water from the plaintiff's well, or to dig turves on the plaintiffs common, and has any colorable 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 rec- ord, (^x) In actions for a nuisance, there is in general a ques- tion of right between the parties. The action may be brought to recover damages for the infringement of an acknowledged 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 defeadant to do the act of which he complains, the action may be brought to try a right beyond the mere question of damages. (/) " Sup- pose," observes TiNDAL, C. J., " a case can be put of a decla- ration 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 in- tended 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 («) Stroud V. Watts, 2 C. B. 929. {y) Shuttleworth v. Cocker, I M. & (jt) Tyler v. Bennett, 5 Ad. & E. 377. Gr. 839 ; 2 Sc. N. R. 47. Macdougal V. Patterson, 11 C. B. 755. {%) Morison v. Salmon, 2 M. & Gr, 39.4- Sec. II.] RECOVERY OF COSTS. 667 mere right to recover damages may 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). 1411. Within what time the certificate must be 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 instant afterwards. " We interpret the words to mean," ob- serves Lord Abinger, " within such reasonable time as will exclude the danger of intervening 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 certifi- cate was given by the judge after the jury had been dismissed, and the court adjourned, and the judge had retired to his lodg- ings in the town, it was held that the certificate was well given. (B) 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 subsequently in the evening of the same day gave a certi- ficate, 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 necessarily to the same day." {c) But whenever the under-sheriff certi- fies, the certificate must be given before the return of the writ of inquiry, (rf) And a certificate not applied for till ten days after the trial can not 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. (^) Where, on an application for a certificate under the above statute, the judge said that he would certify, if necessary, that (a) Eosanquet, J., Shuttleworth v. (e) Forsdyke v. Stone, L. R., 3 C. P. Cocker, i M. & Or. 837. 607. {b) Thompson v. Gibson, 8 M. & W. (/) 15 & 16 Vict. c. Ixxvii., s. 121, 287. which has been repealed by 30 & 31 («■) Page V. Pearce, 8 M. & W. 679. Vict. c. 142, s. 33, and sched. C. W) Knapman V. Pryer, i H. & N. 721. ( g) Heden v. Atlantic Mail, &c., Co^ 29 Law J., Q. B. lyl. 668 THE LA W OF TORTS. [Ch. XXII. the right came in question, and made a memorandum to that effect on his notes, it was held that a certificate subsequently- indorsed on the record had the same effect as if it had been indorsed at the trial. (It) 1412. County court acts depriving the plaintiff 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 pre- vious county court acts as to costs are repealed, (_/') and by s. 5 it is enacted, that " if in any action commenced after the pass- ing of this act in any of Her Majesty's superior courts of record, the plaintiff shall recover a sum not exceeding i^20 if the action is founded on contract, or ;^io if founded on tort, {M) whether by verdict, judgment by default, or on demurrer, (/) or otherwise, he shall not be entitled to any costs of suit, unless the judge certify on the record {in) that there was suffi- cient reason for bringing such 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 court, but have been re- moved into a superior court by certiorari ; (ri) a fortiori there- fore 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. {0) 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. (/) It has been held also that it applies to all actions, both to those which can and to those which can not be brought in the county (K) Jones v. Williams, 13 M. & W. of fact and an issue of law, both of 423. which were determined in favor of the («) See Wood v. Riley, L. R., 3 C. P. plaintiff, but the damages recovered were 26. Ings V. Lond. and South-West. less than the statutable amount, the Rail. Co., L. R., 4 C. P. 17. plaintiff was wholly deprived of coits, (/) See Butcher v. Henderson, L. R., unless he obtained an order or a ceriifi- 3 Q. B. 335. Levi v. Sanderson, L. R., cate. Dunston v. Paterson, 5 C. B., N. 4 Q. B. 330. Mount V. Taylor, L. R., 3 S. 279. Abley v. Dale, 11 C. B. 803. C. P. 645. {m) See Jones v. Williams, supra. {k) As to detinue, see Danby v. Lamb, (k) Pellas v. Bresslauer, L. R., 6 Q. B, ante. 438. (/) The prohibition as regards costs {0) Taylor v. Cass, L. R., 4 C, ?. 61+ was held under the repeal acts to apply (/) Harland v. Mayor, &c., of Ncfl to issues of law as well as of fact, so that castle-on-Tyne, L. R., 5 Q. B. 47. if in an action of tort there was an issue Sec. II.] RECOVERY OF COSTS. 669 court, (^) but that if the plaintiff in an action of slander re- covers any amount beyond 40J., inasmuch as he could not have sued in the county court, (r) he ought, in the absence of circum- stances showing that the action was vexatious, or of a trump- ery character, or that the amount given was too large, &c., (j) to be allowed his costs, under the general power given by the concluding words of the section, although the judge had refused to certify. (/) 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, (it) or that the parties reside a long way from one another, (v) 1413. W/ien the foundation 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 con- tractu, and the plaintiff must recover more than ;^20, or obtain a certificate, rule, or order, in order to entitle himself to costs in the superior courts, iw) 1414. When money has been paid into court not exceeding ;£'20 or_^io, as the case may be, and the plaintiff accepts it in satisfaction of the cause of action, he can not get any costs, as he has not recovered more than the amount mentioned in the act ; (;ir) but if he pays in more than ^20 or;^io, 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 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 £\o as the case may be, the plaintiff will be (?) Craven v. Smith, L. R., 4 Exch. 14. 446 ; 3S Law J., Exch. 90. {v) Thompson v. Dallas, L. R., 3 Q, W <:ftz}ost. B. 359- (s) Samp.son v. Mackay, infra. (w) Legge v. Tucker, i H. & N. 500 j (/) Gray v. West, L. R., 4 Q. B. 175. 26 Law J., Exch. 71. Sampson v. Mackay, L. R., 4 Q. B. 643 ; {x) Boulding v. Tyler, 3 B. & S. 472 ; 3S Law J., Q. B. 2J5. Hincle v. Shep- 32 Law J., Q. B. 85. Parr v. Lillicrap, pard./w/. lb. Exch. 151. (tt) Holborow V. Jones, L, R., 4 C. P. {y) Gowens v. Moore, 3 H. & N. 54(1 670 THE LAW OF TORTS. [Ch. XXII. entitled to or deprived of his costs accordingly, {z) If the cause is referred compulsorily, the same rule holds, both with regard to the costs of thecause and also the costs of the refer- ence 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 statuta- ble amount, and so can not 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 can not 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 negli- gence. It is an action on the case, and, therefore, if the plain- tiff recovers more than £"10, 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) 1415. 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 («) Cowen V. Amman Coll. Co., 34 id) Tattan v. Gt. West. Rail. Co., 29 La«- J., Q. B. 161. ?>eepost. Law'j., Q. B. 184. (a) Moore v. Watson, L. R., 2 C. P. (e) Smith v. Harnor, 3 C. B., N. S. 314- 829. (b) Farshaw v. De Wette, L. R., 6 (/) Hatch v. Lewis, 7 H. & N. 367 ; Zxch. 200. 31 Law J., Exch. 26. Dim^dale v. (c) Stevens v. Chap nan, L. R., 6 Lend., Brighton and South Coast Rail Exch. 213. Co., II W. R., Q. B. 729. Sec. II.] RECOVERY OF COSTS. 671 to be brought in a superior court, the judge ought to certify, and if he does not, his decision will be reviewed, {g) The cer- tificate, when granted, does not in anywise modify or control s. 2 of the 3 & 4 Vict. c. 24, for the discouragement of- trifling and vexatious suits. Therefore, if such a certificate be obtained in a case where a less sum than 40J. is recovered in an action for a wrong, the plaintifir can not get his costs without the further certificate that the action was brought to try a right, or that the grievance was willful and malicious, {h) A judge may, under this statute, it would seem, certify for costs at any time before taxation; (?) but the under-sheriff, or pre- siding officer on a writ of trial, must probably certify before the writ is returned, {k) 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 plain- tiff will, generally speaking, obtain an order for his costs as above mentioned. (/) Where, under the repealed Acts, an ac- tion was brought in a superior court for the detention of goods exceeding the value of £'^0, and the goods were returned to, and taken back by, the defendant after action, and the plaintiff went on ■\\'ith 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 £^^0, 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, {nt) But where an action of trover was brought for the detention of a portmateau of the value of £2'^ for a claim of IS. 6d., and the portmanteau was delivered up to the plain- tiff, and received back by him in court, and the jury then gave a verdict for40J. damages, and the plaintiff failed to take a ver- dict 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 (g) Hinde v. Sheppard, L. R., 7 (k) Craven v. Smith, ante. Exch. 71. (/) See Macdougall v. Paterson, II C. (h) Powle V. Gandy, 7 C. B., N. S. B. 773, decided under the repealed sec- 556. tions. (0 Martin, B., Mason v. Tucker, 4 H, (?«) Leader v. Rhys, 10 C. B., N S. & N. 538. Bennett v. Thompson, 6 Ell. 369 ; 30 Law J., C. P. 345. &B1. 683; 25LawJ., Q. B. 378. 672 THE LAW OF TORTS. [Ch. XXII. in the county court, and no sufficient reason was shown for bringing the action in the superior court. (») 1416. Costs on references. — Neither the 21 Jac. I, c. 16, nor the 3 & 4 Vict. c. 24, apply to cases where, before trial, an action is referred by consent, or (semble) compulsorily and where consequently no verdict is given. {0) But where a verdict is taken, subject to a reference, they do, the verdict in such a case being the verdict of the jury, and the arbitrator merely determining the amount. (/) But under the County Court Acts there is no distinction in this respect between causes referred, either before or after verdict, {g) When the cause has been referred, therefore, the plaintiff can not obtain judgment for his costs, unless he recovers, through the instru- mentality of the award and the verdict, a sufficient sum to carry costs under those acts, (r) So in the case of a compul- sory order of reference, in the common form, made under the Common Law Procedure Act, 1854, 17 & 18 Vict. 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) \ I4I7' 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 refer- ence, for the event, in such a case, is substantially in favor of the defendant, {f) It is otherwise on a reference after issue joined, i^i) 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 refer- ence, {x) 1418. Certificate for full costs in actions for willful and ma- in) Dimsdale v. Lond. and Brighton Chapman, ante. Rail. Co., II W.R., Q. B. 729. (j) Robertson v. Sterne, 13 C. B., N. (p) Wigens v. Coolc, 6 C. B., N. S. S. 248. 784. {t) Kelcey v. Stupples, 32 Law J. (/) Raid V. Ashley, 13 C. B. 897. Exch. 6. (^) Cowell V. Amman Coll. Co., ante. (a) Wigens v. Cook, supra. (f) Smith V. Edge, 2 H. & C. 659 ; 33 Ix) Moore v. Watson, L. R., 2 C. P. Law J., Exch. g. But see Stevens v. 314. Sec. IL] recovery OF COSTS. 673 licious grievances. — 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 40J., except cases in which the judge or presiding officer immediately after- wards certifies on the back of the record, &c., that the trespass or grievance in respect of which the action was brought was willful and malicious. Whenever the judge certifies that the grievance for which the action was brought was willful and malicious, the plaintiff is entitled to his costs under this stat- ute. 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 willful 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 the plaintiff a certificate that the trespass was willful and malicious, {z) A trespass which is committed after notice may fairly be deemed to be a willful 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 will generally be exercised in favor of the plaintiff when notice has been given. Where the defendant went to the plaintiff's house to make a seiz- ure under process from the county court, and, being refused ad- mittance, unlawfully broke open the outer door of the plain-? tiff's house with an axe, after a warning not to do so, and the jury gave only 40J. damages, the judge certified that the 'tres- pass was willful and malicious, so as to give the plaintiff his full costs, {a) 1419. Full costs in actions for willful and malicious trespass, or after notice not to trespass. — By 8 & 9 Wm. 3, c. 1 1, s. 4, it is enacted, that in all actions of trespass in any of her Majesty's Courts of Record at Westminster, wherein at the trial of th6 cause it shall appear and be certified by the judge under hi^ (y) Foster v. Pointer, q C. & P. 72t ; 836. 8 M. & W. 398. () Cobb V. Mid. Wales Rail. Co., L. M. & W. 51. R., I q. B. 342. (/) Howes v. Barber, 18 Q. B. 588 -■ 21 Law J., Q. B. 254. SEC.II.] RECOVERY OF COSTS. 68i to give evidence, the reasonable and necessary expenses of his maintenance may be allowed him. {g) And where the defend- ant's presence in court is reasonably necessary for his defense, the expense of his attendance will be allowed if the defense is successful. (Ji) When there are several defendants who defend jointly, and pne of them gets a yerdict, he will be entitled to an aliquot portion of the joint costs of the defense, and to any additional costs that were reasonably necessary for his defense. («') If several defendants defend separately by separate attorneys, and a verdict is given in favor of some or all of them, each success- ful defendant is entitled to the costs of his defense, {k) Where the jury, being unable to agree upon their verdict, are discharged by the judge, and the plaintiff afterwards dis- continues, the defendant is not entitled to the costs of the trial. (/) 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 ascer- tained in the cause, whether appearing upon the face of the pro- ceedings 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) 1437. Costs of particular issues. — The costs of any issue, either of fact or of law, follow the finding of judgment upon such 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 judg- ment ; 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; {p) but if no material {g) Ansett V. Marshall, 22 Law J., Q. Gambrell v. Falmouth, 5 Ad. & E. 403. B. 118. (/) Wall V. Lond. and South-West. (h) Flower v. Gardner, 3 C. B., N. S. Rail. Co., 11 Exch. 696. 187 ; 27 Law J., C. P. 56. {ni) Reynolds v. Harries, 3 C. B., 'N. (i) Griffiths V. Kaynaston, 2 Tyr. 757. S. 291 ; 26 Law J., C. P. i(- Banholomew v. Stephens,. 5 M. & W. («) 15 & 16 Vict.'c. 76. s. Si. 386. Gray on Costs, 96. " \o) See Dignam v. Bailey, L. R., 5 Q {ft) Newton v. Boodle, 4 C. B. 359. B. 53. 682 THE LAW OF TORTS. [Ch. XXII. issue in fact be found for the party otherwise entitled to the general costs of the cause, the costs of the trial will be allowed to the opposite party. (j>) 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 damage on every count, although the jury on the inquisition disbelieve such witnesses, and find there was no damage as to one count. (^) 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 upon 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 ca.use. {s) 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. (/) 1438. W7tere costs are to be taxed by the court in which the action is brought, under the provisions of certain acts of par- liament, 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 can not give judgment for costs, as it is not the court in which the action wa* brought. («) 1439. Security for costs. — When the plaintiff in the action (/) Reg. Gen. Hil. Term, 16 Vict., R. 16 Vict. c. 76, s. 145, and the Kew Pr. 62; I Ell. & Bl. App. xiii. As to this, Rules, Hil. Term, 1853, R. 63 ; I Ell. & see Chitty's Arch. Pr. nth ed. 498. Bl. App. xiii. iq) Dods V. Evans, 33 Law J., C. P. (/) Davis v. Thomas, 5 Jur. N. S. 709 146. («) Connell v. Watson, 2 Dowl. P. C. (r) Reynolds v. Harries, 3 C. B., N. S. 139. Woodhall v. Voight, 6 H. & N, 289. 153 ; 30 Law J., Exch. 31. Costello V , is) Traherne v. Gardner, 8 Ell. & Bl. Corlett, 4 Bing. 474. i8a. As to costs of abortive issues, 15 & ' Sec. II.] RECOVERY OF COSTS. 68? is a 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 the 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 versa, 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 cir- cumstances, {b) The proviso in the 30 & 31 Vict. c. 142, s 10, has been mentioned. Where a limited liability company is plaintiff", it may be required to give security for costs, if it be shown that there is reason to believe that the assets of the companj^ will not suf- fice to pay the defendant his costs, in case he is successful, and proceedings may be stayed until such security is given, {c) 1440. Award of costs in the county court. — By 9 & 10 Vict. c. 95, s. 88, it is enacted, that all the costs of any action or proceeding in the connty court, not therein otherwise pro- vided 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 (x) Nylander v. Barnes, 30 Law J., (o) Whittall v. Campbell, 5 li. & N. Exch. 150. Zychlinski v. Maltby, 14 C. 601. B., N. S. 322. Chappie v. Watt, 29 Law {b) Denston v. Ashton, L. R., 4 Q. B. J., Q. B. 167. 590. Sykes v. S s, Lye. R., 4 C. P. 645 ; {y) Browne v. Redmond, II Ir. C. L. 38 L. J., C. P. 28i.k R., App. xxviii. Rice v. Dub. and Wick. {c) 20 & 21 Vict. c. 14, s. 24. See Rail. Co., 8 lb. 155, C. P. Caillaud's Patent Tanning Co. v. Caillaud, (z) Holmes v. Pemberton, 28 Law J., 28 Law J., Ch. 357. \ B. 17a. 684 "^HE LA W OF TORTS. [Cii. XXII. 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. 1440a. 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 prose- cutor his actual and necessary costs and expenses of the prose- cution, 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 dis- tress and sale of his goods and chattels, {e) {J' Moody V. Stewart, L. R., 6 Exch. (e) 24 & 25 Vict. c. lOO, ss. 74, 75. S5- Sec. I.l DAMAGES IN CHANCER V. 68 s CHAPTER XXIII. OF DAMAGES IN CHANCERY, AND THE REMEDY BY INJUNC- TION, PROHIBITION, AND CERTIORARI. Section I, — 0/ damages in chancery and the remedy by injunc- tion. 1441. Award of damages in the court of chancery. 1442. The writ of injunction issuing out of chancery. 1443. Injunction to restrain a public company from exceeding its statutory powers. 1444. Injunction to restrain disturb- ance of grave-yards, and ob- structions to rights of burial. 1445. Injunction to restrain the in- fringement of patent-rights and copyright. 1446. Injunction to restrain the sale or detention of chattels. 1447. Effect of laches and delay in applying for an injunction. 1448. Acquiescence precluding a plaintiff from relief. 1449. Of the statutory obligation upon the court of chancery to de- cide all questions of law and fact on the determination of which the title to relief in equity depends. 1450. Of the remedy by injunction at common law. 1451. Injunction at common law to restrain infringements of patent-right and copyright. 1452. Injunctions and orders to stay proceedings. Section II. — Of the remedy by prohibi- tion for the prevention of judicial wrongs. 1453. The writ of prohibition. 1454. Prohibition before judgment. 1455, Prohibition after judgment and execution. 1456. Prohibition where appeal lies, it's?. Prohibition to the ecclesiastical courts. 1458. Notwithstanding an appeal en- tered. 1459. The writ of prohibition to re- strain a county court judge. 1460. Prohibition to the Lord Mayor's court. 1461. Proceedings in prohibition. 1462. The application for a prohibi- tion. 1463. The rule or summons to show cause why a writ of prohib- tion should not issue to r. county court. 1464. Notice of the issue of the writ. [465. Refusal of writ when final. 1466. Of the setting aside writs of prohibition issuing out of chancery. Section III. — Of the remedy by certiorari. 1467. The writ of certiorari. 146B. Where the inferior couVt has jurisdiction. 1469. Where the inferior court has no jurisdiction. 1470. Limitation of time for issuing the writ. 1471. Grounds for the issue of the writ. 1472. Certiorari to remove causes from the county court. 1473. Of the concurrent remedy by appeal and by certiorari— County court appeals. 1474. The application for the writ. 1475. Affidavits, when necessary. 1475. Notice of the issue of the writ. 686 THE LAW OF TORTS. [Ch. XXIII. 1477. The effect of the issue of the 1479. Proceedings after removal. writ. 480. Quashing of the writ — Pn>- 1478. The effect of the refusal of a cedendo. writ of certiorari. SECTION I. OF DAMAGES IN CHANCERY AND THE REIMEDY BY INJUNCTION. 1441. Award of damages in the Court of Chancery. — By the Chancery Amendment Act, 1858, 21 & 22 Vict. c. 27, com- monly called Lord Cairn's Act, it is enacted (s. 3), that in all cases in which the Court of Chancery has jurisdiction to enter- tain 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 substitution for such injunction, and such damages may be assessed in such manner as tht? court shall direct, {a) The meaning of the statute is, that where the court has jurisdiction in the suit, it may award damages in sub- stitution for specific performance. iV) 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 juris- diction in a simple case of damages from a court of common law to a court of equity, (<:) and throw upon a court of equity the functions which properly belong to a jury, {d) But this will not prevent a plaintiff, who at the time of filing his bill is entitled to an 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 {d) Mold V. Wheatcroft, 30 Law J., 29 Law J., Ch. 240. Betts v. De Vitre, Ch. 598. Schotsman v. Lancashire and 34 Law J., Ch. 289. Durell v. Pritchaid, Yorkshire Rail. Co., L. R., I Eq. Ca. L. R., I Ch. App. 244. Ferguson v. 349. Wilson, L. R., 2 Ch. App. 77. Scott v. (b) Soames v. Edge, Johns. 66g. Rayment, L. R., 7 Eq. Ca. 112. (c) Howe V. Hunt, 32 Law J., Ch. 36. (e) Davenport v. Rylands, L. R , I Chinnock v. Sainsbury, 30 ib. 409. Betts Eq. Ca. 302. T. Gallais, infra. \f) Anglo-Danubian Co. v. Roger: on^ (d) Rogers v. Challis, 27 Beav. 175 ; L. R., 4 Eq. Ca. 3. Sec. I.] DAMAGES IN CHANCERY. 687 bill only four days before the expiration of the patent, {g) If the plaintiff, a patentee, and also a manufacturer, has been in the habit of licensing others to use his patent, at a fixed royalty, i the less of that royalty is the measure of damages against a» person who has infringed the patent, and the plaintiff can not 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, {h) ' 1442. The writ of injunction issuing out of chancery is a pro- hibitory writ granted at the discretion of the court, restraining a defendant from the repetition or continuance of a wrongful act; and enforceable, in case of disobedience, by attachment. {i) The object of the equitable interference by injunction, is to prevent the irfringement 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. (Ji) Various instances of the granting of this writ for the pro- tection 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, easements and profits S. prendre, for the prevention of brick-burning (/) and nuisances, for the prevention of waste, for the prevention of trespasses, to enforce compliance by railway and canal compa- nies with the provisions of the Railway and Canal Traffic Act, to restrain public companies from doing acts ultra vires, and to prevent and repress fraud and the fraudulent use of trade- marks, {ni). The interference of the court is not, as we have seen, con- fined to the prevention of the continuance of an injury already done, but its assistance may be invoked for the purpose of {g) Betts V. Gallais, L. R., lo Eq. Ca. (k) Saunders v. Smith, % Myl. & Cr. 392- • 729- {h) Penn v. Jack, L. R., 5 Eq. Ca. 81. (/) Beardmore v. Tredwell, 3 GifiF. (i) Drewry on Injunctions, Kerr on 683. Injunctions, Goldsmith's Eq. Pr., 5th {ni) As to infringement of right of ed. access to a public river, Attorney-Gen- (/) Herr v. Union Bank, 2 Giff, 686. eral v. Thames Conservators, i H. & M. 1. ' In a proper case a court of equity will settle all the rights of the parties, even to the extunt of assessing damages. Bassett v. Company, 43 N. H. 249 ; Dunnett v. Dunnett, 43 id. 499. 688 THE LAW OF TORTS. [Ch. XXIII. averting a threatened mischief. («)' The court will not inter- fere for the protection of public rights, unless it is satisfied that the interests of the public require the issue of the injunc- tion. ((?) 1443. Injunction to restrain a public company from exceeding its statutory powers will be granted at the suit of a private per- son who has sustained some private individual injury thereby, but not, as we have seen, at the instance of a rival company, or any public body not qualified to represent the interests of the public. (/>) Thus it will issue to restrain a public com- pany which by its deed of settlement was empowered to refuse to authorize a transfer to any person not approved by them, from refusing to transfer at all, though whether it would issue to compel them to authorize 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, (f) or from prosecuting a suit not instituted by it. (j)" 1444. Injunction to restrain disturbance of grave-yards, and obstructions to rights of burial. — 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 the mortgaged land with the knowledge of the mortgagee, the Court of Chancery (k) Ante. Tinkler v. Wandsworth ante. Tinkler v. Wandsworth, &c., District Board, 2 De G. & J. 272. Gib- ante. son V. Smith, 2 Atk. 182. {g) Robinson v. Chartered Bank, L. (0) Felkin v. Ld. Herbert, 30 Law J., R., I Eq. Ca. 32. Ch. 604. Ryde Com. v. Isle of Wight {r) Bloxam v. Metrop. Rail. Co., L. Ferry Co., 30 Beav. 616. Wandsworth R., 3 Ch. App. 337. Salisbury v. Me- Board, &c. v. Lond. and South-West. trop. Rail. Co., 38 Law J., Ch. 249. See Rail. Co., 31 Law J., Ch. S54. Wintle Hoole v. Gt. West. Rail. Co., L. R., 3 V. Brist. & South-West. Rail. Co., 6 L. Ch. App. 262. T. R., N. S. 20. (s) Kemaghan v. Williams, L. R., 6 (;>) Ante. Stockport District Water Eq. Ca. 228. See Abrahams v. Lord Co. V. Manchester (Mayor, &c.), 11 W. Mayor, &c., of London, L. R. 5 Eq. Ca. R. 156. Bostock V. North Staff., &c., 625. ' See Wood on Nuisances, 838, 839, 840, 841. ' In a case where an Injunction is soirght to restrain a public company authorized by the legislature to erect its works and carry on a special business, a clear case of an unlawful exercise of power must be shown ; Sparhawk v. Phenix Iron Co., 54 Penn. St. 401 ; Lee v. Pembroke Iron Co., 57 Me. 481 ; Stevens v. Canal Co., 12 Met, (Mass.) 466 ; either because in excess of its powers ; Sanford v. R. R. Co., 24 Penn. St. 344 ; H. R. R. Co. v. Artcher, 6 Paige (N. Y,) 83 ; or because it is so carelessly and recklessly done as to be a nuisance ; Stainton v. Woolrych, 23 Beav. 225 ; or because it is not within the contemplation of the act ; Brock v. Conn. & ' Pass. R. R. Co., 35 Vt. 373 ; Wood on Nuisances, 858-859. Sec. I.] DAMAGES IN CHANCERY. 689 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 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) 1445. Injunction to restrain the infringement of patent rights and copyright. — If a plaintiif 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, {u) both against the manufacturer and the person who uses the patent, iy) 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, (ui) But it is not the practice of the courts of equity to grant a perpetual injunction to restrain the infringement of a patent, un- less the legal validity of the patent has been conclusively established, (^) which must now, under the 25 & 26 Vict. c. 42. the Chancery Regulation Act, 1862, be done before the Court of Chancery itself, (jj/) If, after the decree has been pronounced, the patent becomes void, by the decision of a court of com- |)etent jurisdiction or otherwise, the injunction becomes of no •effect, (z) Where the patentee manufactures and sells the ()atent both in this country and abroad, the onus lies upon him to show not only that the article of which the sale is com- [t) Moreland v. Richardson, 26 Law L. R., 7 Exch. 207. As to interrogato- J., ch. 690 ; 25 lb. 883. ries. see Hoffman v. Postill, L. R., 4 Ch, (a) Gardner v. Broadbent, 2 Jur. N. App. 673. S. 1041. Bacon v. Jones, 4 Myl. & Cr. {x) Hills v. Evans, 31 Law J., Ch. 433. Davenport v. Rylands, ante; 457. As to the legal validity of patent Bovill V. Goodier, L. R., 2 Eq. Ca. 195. rights, see Lang v. Gisborne, Id, 771. {31) Penn v, Bibby, L. R., 3 Eq. Ca. (j') Fernie v. Young, L. R., I Eiig. & 308. Ir. App. 63. M Neilson v. Belts, L. R., 5 Eng. & (z) Daw v. Eley, L. R., 3 Eq. Ca. 496 Ir. App. I. See Saxby v. Easterbrook, II.— 44 690 THE LAW OF TORTS. [Ch. XXIII. plained 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 pre- vent persons attending lectures from talcing notes and pub- lishing such lectures for profit without the author's consent ; {b) also to restrain the publication of private letters without leave of the person who wrote them, or, in case of his death, with- out the leave of his executor, (c) and from printing and pub- lishing any private manuscript or unpublished work without the consent of the author or proprietor, {d) If a person under the pretense of writing a criticism upon an author's work, copies out the most attractive parts of it, and so large a quan- tity of the text as to injure and interfere with the sale of the work, the author or proprietor is entitled to an injunction., {/) But where the reviewer or critic takes no more than is reason- ably sufficient for a mere review or critique, an injunction will be refused, {f) A fair abridgment is in certain cases allowable, but not where it is merely colorable or evasive, and is so far a reproduction of the original work as to injure the sale o{ An injunction may also be obtained to restrain an infringe- ment of the statutory copyright in printed books, including maps, (/?) lectures, dramatic literary property, and musical com- positions, sculpture, useful and ornamental designs, prints and engravings, paintings, drawings, and photographs. It is main- tainable by the grantee or assignee of a printed work, although he has not paid the author the price agreed upon for the writ- ing of the work ; (?") but before the court will interfere in his favor, 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 periodi- (a) Betts V. Willmott, L. R., 6 Ch. Saunders v. Smith, 3 Myl. & Cr. 711. App. 239. Bramwell v. Holcomb, 3 Id. 737. (*) Abemethy v. Hutchinson, ante. (/) Bell v. Walker, I Bro. Ch. C. 450. \c) Thompson v. Stanhope, Ambl. 737. {g) Tonson v. Walker, 3 Swanst. 672 j See Hopkinson v. Ld. Burghley, L. R. ante. 2 Ch. App. 447. {h) Stannard v. Lee, L. R., 6 Ch. App. (d) Queensljuiy (Duke of) v. Sheb- 346. beare, ante. Prince Albert v. Strange, (i) Cox v. Cox, II Hare, 118. ante. Macklin v. Richardson, Ambl. {/) Stevens v. Benning, 24 Law J, 694. Ch. 153. Addison on Contracts, 6th ed, (<) Campbell v. Scott, 11 Sim. 31. 120, 121. Sec. I.] DAMAGES IN CHANCERY. 691 cal under a similar title, allowed the latter to continue his pre- parations without objection, and himself advertised it, it was held that he could not restrain the latter from using the title^ although as a matter of fact his periodical was published first, (k) 1446, 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 redeem- ing his property. (/) And a court of equity has also jurisdic- tion to enforce a right of stoppage in transitu {in). The Court of Bankruptcy also has jurisdiction, under the Bankruptcy Act, 1869, 32 & 33 Vict. c. 71, to prevent by injunction a third per- son from dealing with property fraudulently assigned before a bankruptcy, in) 1447. Effect of laches 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, be influenced by any laches or delay which may have taken place in the in- stitution of the proceedings. (/>) 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 injury, {q) ' 1448. Acquiescence precluding a plaintiff from relief. — A man who lies by while he sees another person expend his capital and bestow his labor 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 pro- ceedings inconsistent with his own claims, will in vain ask for an injunction, the effect of which would be to render all the {h) Maxwell v. Hogg, L. R., 2 Ch. (n) Ex parie Ande.rson, L. R., 5th Cb» App. 307. App. 473. (t) North V. Gt. Northern Rail. Co., (/) Bridson v. Benecke, 12 Beav. i. 69 f 29 Law J., Ch. 301. Bovill v. Crate, L. R., i Eq. Ca. 388. (m) Schotsmans v. Lane, and York. (?) Ware v. Regent's Canal Co., 3 De Rail. Co., L. R., 2 Ch. App. 332. G. & J. 230. Wicks v. Hunt, 1 Johns. 372. ' Atlanta v. R. R. Co., 40 Ga. 471 ; Wood on Nuisances, 831 ; Meigs v. Lester, 23 N. J. igg ; Carlisle v. Cooper, 25 Id. 576 ; Atty.-Gen. v. R. R. Co., 24 Id. 49 j Goodwin v. Canal Co., 18 Ohio St. 169. 692 THE LA W OF TORTS. [Ch. XXIII expense useless which he voluntarily suffered to be incurred, (r) Where there was a parol agreement for the making of a water- course 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 afterwards agree upon the amount to be paid for the easement, and the defend- ant 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)' 1449- Of the statutory obligation upon the Court of Chancery to decide all questions of law 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 de- pendent upon an action being brought to try the right, or it required the complainant first to establish his title at law, and suspended the grant of the injunction until the result of the legal investigation had been ascertained ; {f) but the Chancery Amendment 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 seek- ing such relief has been established in a proceeding of law, the court may itself determine such title or right without requiring the parties to proceed 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, (u) When the trial takes place before a jury, the court has the same powers, jurisdiction, and authority as any judge of any of the superior courts sitting at nisi prius. But this (»•) Parrott v. Palmer, ante. Binning- (;) Earl Ripon v. Hobart, 3 Myl. & ham Canal Co., v. Lloyd, l8 Ves. 515. K. 177. Clowes v. Beck, 13 Beav. 354 Cotchin V. Bassett, ante. Maxwell v. 20 Law J., Ch. 505. Bacon v. Jojes, 4 Hogg, supra. Myl. & Cr. 436. (.f) Devonshire (Duke of) v. Elgin, 20 (») See Simpson v. HoUiday, L. R., : Law J., Ch. 495. See ante. App. Ca. 316. ' Bridge Co. v. Bragg, II N. H. 102; Lefevre v. Lefevre, 4 S. & R. (Penn.) 841 ; Hepburn v. McDowell, 17 S. & R. 333 ; Houston v. Laffe, 46 N. H. 608 ; Ricker v. Kelly, i Greenl. (Me.) 117. But see Cook v. Steams, 11 Mass. 553 ; E* farU Cobuin, i Cow. (N. Y.) 570; Prince v. Case, 10 Conn. 37s. Sec. I.] DAMAGES IN CHANCERY. 693 provision does not, by its reference to proceedings 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, {u) Nor does it give the defendant a right ex debito justitiae to have his case tried by a jury, where, as in a patent case, a trial by the judge alone is preferable, {v) And by 25 & 26 Vict. c. 42, s. i, 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 insti- tuted or pending in either of the said courts, and whether the title to such relief or remedy be, or be not, incident to, or de- pendent upon, a legal right, any question of law or fact cogniz- able in a court of common law, on the determination of which the title to such relief or remedy depends, shall be determined by or before the same courts. (7) 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, nevertheless, direct any issue to" try the question at the assizes, or at a sitting for the trial of issues in London or Middlesex, (s) 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, 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 jurisdiction, 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 relief. (^) The act applies not merely to rights, but to remedies, given by the courts of equity, and does away («) Curtis V. Piatt, L. R., I App. Ca. {z) See Roskell v. Whitworth, L. R., 5 337- Ch. App. 459. (») Bovill V. Hitchcock, L. R., 3 Ch. (a) Durell v. Pritchard, L. R., i Clj. App. 417. App. 244. (.y) See Fernie v. Young, ante. {b) Fernie v. Young, ante. 694 THE LAW OF TORTS. [Ch. XXIII. with the power of refusing or postponing remedies until the legal title has been established by a trial at law. {c) But there is nothing in the act which authorizes 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. {/) 1450. Of the remedy by injunction at cominon law. — By 17 & 18 Vict. c. 125, s. 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 injunction 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 can not 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 parte to the court or a judge for a writ of injunction to restrain the de- fendant, 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 judge, 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 rea- (c) Hooper In re, 32 Law J., Ch. 55. Bowling v. Betjemann, 2 Johns. & H. {ft) Curlewis v. Carter, 33 Law J., Ch. 544. 370. (/) Booth V. Taylor, L. R., i Exch. (<) Att.-Gen. v. United King. Tel. 51. Co., 30 Beav. 287 ; 31 Law J., Ch. 329. Sec. I.] DAMAGES IN CHANCERY. 695 sonable and just. (^) 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 wrong-doer to pull down a building, or remove a wall obstruct- ing ancient windows, and will, 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 full enjoyment of the light and air he previously possessed, (/z) 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 injunc- tion until the cause is determined, and the courts of common law will mould their proceedings as nearly as possible in ac- cordance with the proceedings in equity. (?) There being no appeal from the exercise of this jurisdiction, the courts are slow to exercise it, where the applicant can ob- tain an adequate remedy by action (although repeated actions may be necessary), and in cases to which the powers of the Court of Common Pleas to grant an injunction under the Rail- way and Canal Traffic Act (17 & 18 Vict. c. 31, s. 3), are especially "applicable. (/&) When once an injunction has been obtained under s. 82 of this statute (17 & 18 Vic. c. 125), it is in itself a continuing injunction, 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. (/) The court has no power to grant an injunction in an action of ejectment, {m) 1451. Injunction at common law to restrain infringements of patent-riglit and copyright. — By the Patent Law Amendment Act, 15 & 16 Vict. c. 83, s. 42, it is enacted, that in any action {g) As to costs, see Gridley v. Booth, R., i Exch. 32. 34 Law J., Exch. i",5. (/) De La Rue v. Fortescue, 2 H. & (/i) Jessel V. Chaplin, 2 Jur. N. S. N. 324 : 26 Law J., Exch. 339. 931 ; 4 VV. R. 5io. (ot) Baylis v. Le Gros, 26 Law J., C («■) Gittins V. Symes, 15 C. B.'362. P. 176. {k) Sutton V. South-East. Rail. Co., L. 696 THE LAW OF TORTS. [Ch. XXIII. 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 fnrther enacted, that in any action for an infringement of copyright in paintings, drawings, and photographs, 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 posses- sion of, certain photographic plates of the plaintiff for print- ing portraits, and printed and sold portaits therefrom, and thereby rendered the plates less valuable to the plaintiff, and deprived him of the profits he would have derived from printing and selling portraits from the said plates ; and in a second count charged the defendant with detaining the said photographic plates, and claimed a return of them, or their value, and £\o for their detention, and ;^i,ooo 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 both counts of his declaration, and was also entitled to an injunction. («) 1452. 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 will be iiable to an attachment, 15 & 16 Vict. c. ^6, s. 226. The court also will stay proceedings after order made, and before the writ of injunction is actually issued, (p) {n) Mayall v. Higby, 31 Law J., Exch. (0) Corbett v. Ludlam, II Exch. 450 539 ; I H, & C. 148. 25 Law J., Exch. 25. Sec. II.] REMEDY BY PROHIBITION. 697 SECTION II. OF THE REMEDY BY PROHIBITION FOR THE PREVENTION OF JUDICIAL WRONGS. 1453. The "writ of prohibition is a writ issuing out of chan- cery, (/) or one of the superior courts at Westminster, directed to the judge or ofificers 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 administration 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. (^V Where an inferior court proceeds in a course properly within its jurisdiction, no prohibition can be awarded till the pleadings raise some issue which the court is incompe- tent to try. But where the foundation for the jurisdiction is itself defective, a prohibition may be applied for at once, if) ' The writ of prohibition, therefore, from the Queen's courts at Westminster, still goes to the ecclesiastical courts, (s) as well as to the courts of admiralty, {f) courts-martial, county courts, courts baron, the Vice-Chancellor's court, the court of the Earl Marshal, the Lord Mayor's court, courts of quarter ses- sions, municipal councils, and to all magistrates, sheriffs, com- missioners, 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, (u) It lies also in certain cases to restrain the proceedings of courts of criminal jurisdiction, and will be granted to prevent a coroner holding an inquest from (/) See I?e Bateman, L. R., g Eq. Ca. (i) James v. Lond. and South- West 660. Rwy., L. R., 7 Exch. 187, 287. . (?) Bac. Abr. Prohibition. Prohibi- («) Bac.Abr., Prohibition (i). Birch, tions del Roy, 12 Co. 63-64. In re, ic C. B. 743. Chabot, In re, 17 (r) See Mayor of London v. Cox, L. Law J., Q. B. 336. Church v. Inclos. R., 2 H. of L. Ca. 239. Com., 31 Law J., C. P. 201. Mayor of (j) 2 Inst. 598, 599. London v. Cox, supra. ' Prohibition is a proper remedy when a judge attempts to proceed in execution of a judgment after an appeal has been taken. State v. Judge of 5th Dist. Court, 21 La. Ann. 1x3 ; State v. Judge of 4th Dist. Court, 21 Id. 123. ' Hanger v. Keating, 26 Ark. 51 ; Ex fartt Little Rock, 26 Id. 52. 698 THE LAW OF TORTS. [Ch. XXIII. extending his inquiries beyond the proper limits of his office, ill) When the act sought to be prohibited is not a judicial act, a prohibition will not lie; (w)" but all acts based upon a deci- sion judicial in its nature, and affecting either a public or a private right, are judicial acts ; such as an order by church- building connmissioners to stop up a footpath through a church- yard, {x) ' or the apportionment of a county-rate by commis- sioners ; (j) or an order of sessions regulating the fees of the clerk of the peace, (z) I4S4' Prohibition before judgment. — Wherever the case is of such a nature as to show on the face of the proceedings a want of jurisdiction in the inferior court, it is the bounden duty of the superior court to issue the writ of prohibition, in whatever stage of the proceedings belov/ that fact is made manifest, either by the Crown or by any one of' its subjects. The mis- construction of an act of parliament by an inferior tribunal, whereby it is about to do something which it is not authorized to do, is one of these cases; the enforcement of a rate of tax imposed without lawful authority is another, {a) ' When it appears from the very form of an information or plaint, and particulars of a cause of action in the inferior court, {v) Reg. V. Herford, 39 Law J., Q. B. Q. B. 854. 249. (2) Reg. V. Coles, 8 Q. B. 75. {w) Death, Ex parte, 18 Q. B. 647 ; 21 (a) Burder v. Veley, 12 Ad. & E. 263. Law J., Q. B. 337. Reg. v. Salford, 18 Veley v. Binder, lb. 311. White v. Q. B. 687. Steel, 13 C. B., N. S. 231 ; 31 Law J., {x) Reg. V. Arkwright, 12 Q. B. 960. C. P. 265. Foster v. Foster, 32 Law J., \y) Reg. V. Aberdare Canal Co., 14 Q. B. 314. ' Casly V. Thompson, 42 Mo. 133 ; Home Ins. Co. v, Flint, 13 Minn. 244 ; The People V. Supervisors, i Hill (N. Y.), 195 ; State v. Allen, 2 Ired. (N. C.) 183. * The writ does not lie to restrain the institution of a threatened suit, but only one already commenced, nor to restrain any threatened judicial act unless a part of the proceedings of an action already instituted ; but if the act is judicial, and can be performed without the existence of an action. Hence, if the act will be illegal and in excess of the lawful j iirisdiction of the person or body upon whom its execu- tion rests, a writ of prohibition may issue to restrain the doing of it at all. Thus, where an act of the Legislature which was unconstitutional, provided for the ap- pointment of commissioners to carry into effect an act authorizing a town to borrow money and donate it to a railroad company, which act required him to appoint such commissioners under his hand and seal, upon application of three freeholders of the town, it was held that this was a judicial act, to restrain which a writ of pro- hibition was the proper remedy. Sweet v. Hurlbert County Judge, 51 Barb. (N.Y.) 312. ' A writ of prohibition will not be issued to restrain an act which can be dis- posed of on an appeal, or other method of review. People v. Wayne, II Mich. 393. Sec. II.] DAMAGES IN CHANCERY. 699 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, (^) or he may appear and take the objection, and go for a prohibition, in case the judge rules against him. When the defect of jurisdiction is not made manifest at the commencement of the proceedings by the plaintiff himself, but depends upon certain questions of fact, the defendant may bring before the court the facts depriving it of jurisdiction, and object to any further proceeding in the matter, and go for a prohibition, if the judge comes to an erroneous 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 or without the 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 a writ even in these cases, if it deems it advisable; 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) (b) De Haber V. Queen of Portugal, 20 {d) Joseph v. Henry, ig Law J., Q. Law J., Q. B. 489. Crompton, J., Man- B. 369. Reg. v. Twiss, L. R., 4 Q. B. ning V. Farquharson, 30 Law J., Q. B. 407 ; 38 L. J., Q. B. 228. 22. Mayor of London v. Cox, supra. () If a county-court judge has entertained an application for a (»«) Ante. Barnes v. Marshall, iS Law J., Exch. 223. Lawford v. Par- Q. B. 785. Buckley v. Hann, 5 Exch. tridge, ante. A3- Wilde v. Sheridan, 21 Law J., ((>) Hardy v. Walker, 23 Law J., Exch. Q. B. 260 ; and see Newcombe v. De 57. Roos, 2q Law J., Q. B. 4. (J>) Jones v. Jones, 17 Law J., Q. B, (a) Thopipson v. Ingham, Chew v. 170. Holroyd, ante. Knowles v. Holden, 24 7o8 THE LAW OF TORTS. [Ch. XXIII. new trial, and pronounced his decision upon it, and entered his judgment of record, he cannot rescind his judgment and enter- tain a fresh application, {q) A prohibition can not be issued to the county court after execution, and a levy 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 taken 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 re- dress 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) 1460. Prohibition to the Lord Mayor s Court can not be is- sued 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 pro- ceedings ; for by the Mayor's Court of London Procedure Act {u) it is enacted, that " no defendant shall be permitted to object to the jurisdiction 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 TIG part of the cause of action arose within the locality over which the court had jurisdiction, tt 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, (z/) But this does not ap- ply to a garnishee who is sued in the Lord Mayor's Court, who may apply for a prohibition in the first instance accord- ingly, (w) (g) Mossop V. Gt. Northern Rail. Co., 6 Exch. 102. Jackson v. Beaumont, 11 16 C. B. 580 ; 17 Id. 130. Id. 303. (r) Denton v. Marshall, 32 Law J., («) 20 & 21 Vict. c. clvii. s. 15. Exch. 91 ; I H. & C. 654. Poe, In re, 5 \v) Manning v. Farquharson, 30 Law E. & Ad. 681. Robinson v. Lenaghan, J., Q. B. 22. 2 Exch. 333. (to) Cox V. Mayor, &c., of London, i (j) Parke, B., Pears V.Wilson, 6 Exch. H. & C. 338; 32 Law J., Exch. 285 ; 838. L. R., 2 H. of L. Ca. 239. See Banque (/) Martin, B., Mungean v. Wheatley, de Credi Commercial v. De Gas, L. R., 6 C. P. 142. • U. S. V. Hoffmann, 4 Wall. (U. S.) 158. Sec. II.] REMEDY BY PROHIBITION. yog 1461. Proceedings in Prohibition. — By i Wm. 4, c. 21, s. i, 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 prohibition ; to which declaration the defendant may demur or plead such matters as may be proper, to show that the writ ought not to issue, and the party in whose favor judgment shall be given shall be en- titled to costs, &c. ; {v) and in case a verdict shall be given foi the party plaintiff, it shall be lawful for the jury to assess dam- ages. " The legislature," observes Erle, 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 turns out to be contrary to law. I am, how- ever, 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 favor." (j/) 1462. The applicatioit 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 appHcation may be made to the Court of Chancery. {£) 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 appHcation is made belongs, but should not be entitled in any cause, (a) But after a rule has been granted, the affidavits used in show- ing cause may be entitled in the cause, (b) The judge's i {?) Where, therefore, the rule for a {y) White v. Steele, 32 Law J., C. P prohibition is made absolute without 2 ; 13 C. B., N. S. 325. pleadings, there is no "judgment" with- (z) Re Bateman, L. R., g Eq. Ca. 66a in the meaning of the section, and the {a) Evans, ex parte, 2 D., N. S. 410 ; applicant is not entitled to his costs : 12 Law J., Q. B. 68. Fx parte Overseers of Everton, L. R., (b) Breedon v. Capp, 9 Jur. 781. Cor 6 C. P, 245. ner's Crown Pr., PROHIBITION. 710 THE LA W OF TORTS. [Ch. XXIII. decision, if he refuses a rule, may be reviewed as in ordinary cases, (c) 1463. The rule or summons to show cause why a writ of pro- hibition should not issue to 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 un- til the superior court or judge thereof otherwise orders; and the judge of the county court is required to adjourn the hear- ing of the cause until 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) 1464. Notice of the issue of the writ must be given to the opposite party, and the writ lodged with the registrar of the county court, when the writ is is.sued to that court, two clear days before 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, {ef 1465. 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. (/") 1466. 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 appli- cations incident to such actions, &c. ; and it has been held that the superior courts have jurisdiction under this statute to set (f) 13 & 14 Vict. c. 61, s. 22, Chitt. 40, 41. As to prohibition in copyright Arch. Pr., nth edit., 1725, Prohibi- cases in the county court, 21 & 22 Vict TION. c. 70, s. g. (d) 19 & 20 Vict. <,. io8„ ss. 40, 42. {f) ig & 20 Vict. c. 108, s. 41. As to costs in the county court, Id. ss. (_/") Id. s. 44. ' Ex parte Tucker, 25 Ark. 457, Sec. III.] REMEDY BY CERTIORARI. 711 aside a writ of prohibition improperly issued out of the court of chancery to a county court. (^) SECTION III. OF THE REMEDY BY CERTIORARI. 1467. The writ of certiorari is a writ issued out of chancery, (K) 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 re- moving^ 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. 1468. 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 supe'rior court, the writ must be obtained and served before issue has been joined in the inferior court, and before the first juryman has been sworn, («') except in those cases where the writ is applied for with the view of enforcing in the superior court the judgment of an inferior tribunal. (/) 1469. 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, if the want of jurisdiction appears upon the face of the proceedings, or exception to the jurisdiction was taken at the trial, and the circumstances depriving the court of authority in the matter were brought to the knowledge of the judge, and the objection was improperly overruled, and judgment wrongfully given against the defendant ; hut where the want of jurisdiction does {g) Baddeley v. Denton, 4 Exch. 508 ; 772. Williams, J.. Kemp v. Balne, i D. Chitt. Arch. Pr., nth edit., part xii. & L. 885. {K) See Davies v. McHenry, L. R., 5 (J) Chitt. Arch. Pr., nth edit., Cer- Eq. Ca. 200; 6 Id. 462. tiorari. A county court judgment is (0 43 Eliz. c. 5, s. 2 ; 21 Jac. I, c. 23, not removable for the purpose of having s. 2. Laverack v. Bean, 3 M. & W. 62. execution thereon ; Moreton v. Holt, 10 Holroyd, J., Walker v. Gann, 7 D. & R. Exch. 707 ; 24 Law J., Exch. 169. 712 THE LA W OF TORTS. [Ch. XXIII, 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, or the 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, 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 ; (/) for wherever a party makes r.o objection to the jurisdiction of the court whilst the case is proceeding, but apparently acquiesces, and suffers the court to act without protest or objection, as if it had jurisdic- tion, down to actual judgment, it is then too late to apply for a certiorari, unless the defect appears upon the face of the pro- ceedings. (;;«) 1470. Limitation of time for issuing the writ. — 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 made-, (ri). But there is no general rule of practice, except in those cases, which requires the applica- tion for the certiorari to be made within that time, (o) 1471. Groimds for the issue of the writ may be established either by showing that the inferior court had no power to ad- judicate upon the matter brought before it, or that it has ex- ceeded its authority in adjudfcating upon it, and that objection was taken to the jurisdiction before the court gave judgment in the matter, (/) or that difficult and important questions of law will arise, and have to be decided, or that a fair trial can not be had, or an impartial jury be obtained, or that the judge or magistrate who has adjudicated had some personal interest in (k) Reg. V. Long, i Q. B. 740. plication, Reg. v. Allen, 33 Law J., (/) Watkins, ex fa:te, 10 W. R. 249; M. C. 98. Freeman v. Read, ante. (0) Reg. v. Mayor of Sheffield, L. R {m) Yates v. Palmer, I D. & L. 288. 6 Q. B. 652. («) As to the casual absence of the (/) Rees v. Williams, 7 Exch. 51. judge on the last day for making the ap- Sec. III.] REMEDY BY CERTIORARI. 713 the subject-matter of the suit or proceeding, {q) A certiorari is never granted where a procedendo can not be awarded. Where, therefore, a magistrate gives notice that he objects to be sued in the county court, and by so doing puts an end to the pro- ceedings there, he can not afterwards remove them into the superior court, (r) Nor will it be granted to remove a pro- visional order of a secretary of state, under 21 & 21 Vict. c. 98, empowering a local board to put in force the Lands Clauses Act, with respect to the purchase of land, such an order hav- ing no validity till confirmed by Act of Parliament, {s) The writ lies at common law, as we have seen, for the pur- pose of removing convictions and orders of magistrates made without jurisdiction, although the writ is expressly taken away by statute, for a legislative prohibition of removal by certiorari applies only to cases which the inferior court has authority to try, and not to causes which are not within the cognizance of the inferior tribunal, if) 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 public, but where the applicant has, by reason of his local situation or otherwise a peculiar grievance of his own, the writ is grantable ex debito jvstitice. {u) 1472. Certiorari to remove causes from the county court. — When the claim in the county court exceeds ^5, and the court ^as jurisdiction over the subject-matter of the action, the issue of the writ is discretionary with the judge of the superior court to whom the application 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 debt or costs, or such other terms as the judge shall think fit ; 9 & 10 Vict. c. 95, s. 90. The 13 & 14 Vict. c. 61, s. 14, 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 ;^20 {infra), and enacting (s. 16) that no judgment, order, or determination of any judge of a county court, nor any cause or matter brought before him, or pending in his (?) Reg. V. Suffolk, 18 Q. B. 146. Newborough, L. R., 4 Q. B. 585 ; 38 \r) Weston v. Sneyd, i H. & N. 703. L. J., M. C. 129. (4 Frcwen v. Hastings Local Board, {t) Reg. v. Badger, 6 Ell. & Bl. 137. 34 Law J., Q. B. 159. And see Reg. v. («) Reg. v. Justices of Surrey, L. H., ! Q. B. 466. 714 THE LAW OF TORTS. [Ch. XXIII. court, shall be removed by appeal, motion, writ of error, cer- tiorari, or otherwise, into any other court whatever, save and except in the manner and according to the provision therein- before mentioned, does not affect the right of removal by cer- tiorari, where the damages claimed exceed £ti ; for by s. 2 of that statute it is declared, that that Act, and the 9 & lo 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." (i/) The writ of certiorari, therefore, for the removal of a cause from the county court, where the damages claimed exceed ;^5, is untouched by the 13 & 14 Vict. c. 61, s. 16. {y) Where the claim does not exceed £t), and the court has jurisdiction 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 iJioo; and assents to such terms as the court or judge may think fit to impose ; 19 & 20 Vict. c. 108, s. 38. {2) When the writ is sought for on the ground that the county court has no jurisdiction in the matter, it is grantable ex debito justiti(£, and as a matter of right, on fair ground being shown for contending that the court has no jurisdiction, {a) l/^'JZ- Of the concurrent remedy by 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 defendant is " dissatisfied with the determination of the court in point of law, or upon the ad- mission or rejection of any evidence ;" but notice must be {v) Parker v. Brist. and Ex. Rail Co., (z) As to the mode of giving secuity 6 Exch. 184; 20 Law J., Exch. 112. see, ss. 70, 71. Erookinan v. Wenham, 20 Law J., Q. B. {a) Jackson v. Beaumont, ii Exch. 300; ^ 278 ; 2 L. M. & P. 233. ante, (y) Box V. Green, 9 Exch. 503. Sec. III.] REMEDY BY CERTIORARI. 715 given within ten days to the opposite party, or his attorney, and security must also be given for costs, or the appeal can not be heard, {p) The right to have such security given may, how- ever, 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 ex- pected to be recovered. () and if the public officer to whom the performance of the duty belongs has in the meantime quitted his office, 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 perform. (^) ' In certain cases, however, where a public officer, occupying a subordinate position, has received an order from his superi- ors, or any competent authority, and is liable to an indictment for disobeying the order, the court has refused to proceed by mandamus, and has left the parties to the ordinary remedies. if) Thus, in the ordinary case of disobedience, by surveyors, treasurers, and ministerial 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. (/) "The court," observes Lord Kenyon, C. J., "grants a man- dartius to justices to make an order when they refuse to do their duty. But it would be descending too low to grant a Hiandamus 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." («) So a mandamus will not go to a clerk of justices to return a record of all summary convictions pursuant to the ii & 12 Vict. c. 43, s. («) Rugby Charity, Ex parte, 9 D. & (?) Rochester (Mayor, &c., of) v. Reg., R. 214. 27 Law J., Q. B. 436. (k) Reg. V. Oxford, &c., Roads-, 12 Ad. {r) Coleridge, J., Rex v. Payn, 6 Ad. & E. 427. & E. 401. (0) Rex V. Commissioners of Customs, (s) 12 & 13 Vict. u. 45, s 18. 5 Ad. & E. 380. (^) Rex V. Bristow, 6 T. R. 168. Rex. (/) Reg. V. Mayor, &c., of Monmouth, v. Jeyes, 3 Ad. &. E. 416. Downton ante. Overseers, E parte, 8 Ell. & Bl. 856. («) Rex V. Bristow, 6 T. R. 170. ' Hamilton v. State, 3 Ind. 452 ; provided the act can lawfully be done ; People » Olmstead, 45 Barb. (N. Y.) 454 ; Strong's case, Kirby (Conn.) 345. Sec. I.] REMEDY BY MANDAMUS. 729 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, {w) 1485. Mandamus to overseers or clergymen to bury the dead hody of a pauper. — It should seem that the individual under whose roof a poor person dies is bound to carry the body de- cently covered to the place of burial ; he can not keep it unburied, nor do anything which prevents Christian burial ; he can not, therefore, cast it out, so as to expose the body, or of- fend the feelings, or endanger the health, of the living ; and for the same reason he can not 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 a pauper who has died in a private house in the parish, or in a hospital not belonging to the parish authorities, ix) 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, (/) or in any unusual or extraordinary manner, {z) i486. 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 claiming 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 efFictual, a mandamus will not be granted. " This is not a rule of law, (») Hayward. In re, 3 B. & S. 546 ; 32 {y) Blackmore, Ex parti, i B. & Ad. L. J., M. C. Sg! 122. (w) Reg. V. Wood Ditton Surveyors, (z) Rex v. Coleridge, 2 B. & Aid. 809 &c., 18 Law J., M. C. 218. (a) Clarke v. Bishop of Sariim, 2 Str. (x) l",eg. V. Stewart, 12 Ad. & E. 773. 1082. 730 THE LAW OF TORTS. [Ch, XXIV. 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 (i) Hill, J., Barlow, /n re, 30 Law J., Q. B. 271. ' In order to entitle a person to relief by writ of mandamus, it must appear that he has a clear legal right to the relief demanded against the person to whom he seeks to have the writ directed, and that it is the duty of such person to do the act, the doing of which the writ is sought to enforce. People v. Booth, 42 Barb. (N. Y.) 41 ; Trustees v. State, 11 Ind. 205 ; People v. Supervisors of Greene, 12 Barb. (N. Y.) 217 ; People v. Thompson, 25 Barb. (N. Y.) 73 ; Ex parte Conway. 4 Ark. 302 ; Ex parte Stickney, 48 Ala. 160. Thus, where, by law, certain instruments are re- quired to be recorded, and it is the duty of certain officers to record them, if such officer refuses to enter upon the record an instrument entitled to record, he will be compelled to discharge the duty by peremptory mandamus. Ex parte Goodell, 14 Johns. (N. Y.) 325 ; Strong's case, Kirby (Conn.) 345. So where it is the duty of a board of canvassers to canvass the votes cast for a certain officer at an election, and give a certificate to the person receiving the largest vote — as for senator — the board will be compelled, by peremptory mandamus, to give their certificate to such person, irrespective of the question of his right, otherwise, thereto. They are not to pass upon questions of fraud or other irregularities, but simply to canvass the votes and give their certificate to the one to whom by law they are required to give it. Their duties are purely ministerial, and being plain, simple, and unquestionable, they will be compelled to perform them. O'Farrell v. Colby, 2 Minn. 180 ; People v. Hil- liard, 2g 111. 413. So, where a judgment is obtained against a municipal corpora- tion, and there is no other method to enforce its payment, a mandamus lies to com- pel its payment. City of Olney v. Harvey, 50 111. 453. So, to compel the payment of land damages for land taken for a street or highway ; Minhinnah v. Haines, 29 N. J. 388 ; and so in all cases where the duty of the person, officer, board, or cor- poration against whom the writ is sought, and the right of the person seeking it is clear, and there is no other adeqtiate specific remedy, the remedy by mandamus exists. Draper v. Noteware, 7 Cal. 276. The mere fact that the party has another remedy, is not of itself sufficient to warrant a denial of the writ. There must be some other equally adequate specific legal remedy, which will place the parly in the situation to which his rights enti- tle him, and in which it is the duty of the officer, board, or corporation, or person against whom the writ is sought, to place him. Etheridge v. Hall, 7 Port. (Ala.) 47; Gaings V. Mills, i Pike (Ark.), II ; The State v. Justices of Moore, 2 Ired. 430 ; The State v. Justices, Dudley (Ga.), 37 ; People v. Taylor, 30 How. Pr. (N. Y.) 78. Thus, the fact that a person who has a right to have an instrument re- corded, has a remedy against the officer whose duty it is to record it, for refusing to record it, in damages, does not deprive him of his remedy by mandamus, for the remedy by action is not the specific relief to which he is entitled ; nor does it even tend to place him in the situation in which by law he is entitled to stand. The failure to record may defeat his title to property, and the remedy in damages is not adequate within the meaning of the term. But where a party holding a judgment against a municipal corporation is entitled to an execution, and there is an ample remedy for the collection of the money due thereon by levy upon municipal prop- erty, then mandamus will not lie, for the party has an adequate remedy for the specific relief to which he is entitled, to wit, the liquidation of his judgment; and Sec. I.] REMEDY BY MANDAMUS. 731 of debt is maintainable for the money, and affords as con- venient and effectual a remedy as a writ uf mandamus, the court will leave the party to the ordinary remedy by action, and v/ill 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 suitable (f) Reg. V. Hull and Selby Rail. Co., {d) Rex v. Severn and Wye Rail. Co., 6 Q. B. 70 ; 13 Law J., Q. B. 257. Reg. 2 B. & Aid. 650. Reg. v. Brist. Dock V. Brist. and Exeter Rail. Co., 3 Rail. Co., 2 Q, B. 70. Reg. v. Vict. Park Co., Cas. 777. I Q. B. 291. thus in a// cases where there is no adequate legal remedy by action, equivalent to a specific remedy, and the right on the one hand and the duty on the other is clear ; U. S. V. Bank of Alexandria, i Cr. C. C. (U. S.) 7 ; Williams v. Judges, &c., 27 Mo. 225 ; and the writ will be effectual to secure the right ; Woodbury v. Co. Commrs., 40 Me. 404 ; People v. Tremain, 2g Barb. (N. Y.) 96 ; Com. v. Supervisors, 2g Penn. St. 121 ; and the amount or interest involved is not insignificant ; Hull v. Cross- man, 27 Vt. 297 ; and the act sought to be enforced is not unlawful ; Johnson v. Lucas, II Humph. (Tenn.) 301 ; or discretionary; Gray v. Bridge, II Pick. (Mass.) 189 ; Respublica v. Clarkson, I Yeates (Penn.) 46 ; and there is no sufficient excuse for a refusal to do the act ; People v. Minor, 32 Barb, (N. Y.) 612 ; a mandamus will generally be granted ; but it must be remembered that the writ is not purely a matter of right, but, like the granting of an injunction, rests in the sound discretion of the court, in view of all the facts set forth in the petition, affidavits, or proved upon the hearing. Woodman v. Somerset, 29 Me. 151 ; People v. Commi.ssioners of Sewers, 22 Barb. (N. Y.) 114 ; Ex parte Stickney, 48 Ala. 160 ; Ex parte Conway, 4 Ark. 302 ; Woodbury v. Co. Commrs., 40 Me. 304. A mandamus properly issues from a court of general jurisdiction, or from a court of the highest jurisdiction to an inferior court, when the act sought to be enforced is on the part of a judicial tribunal. United States v. Co. Commrs., I Morris (Iowa), 31. There are two classes of writs, one called alternative, and the other peremptory. The usual course in applying for a mandamus, is to present a petition to the court by law clothed with the power to issue it, by petition, setting forth the relief desired, the right of the relator thereto, and the duty of the defendai>t in the premises, properly verified by affidavit of the party. Upon this petition a rule to show cause why a mandamus should not issue is granted. If the cause is found in.sufficient, then a mandamus in the alternative issues, to which a return must be made, and if, upon the return a sufficient excuse for not doing the act is shown, u peremptory mandamus issues ; but except in cases entirely free from doubt, n. peremptory mandamus will not be granted in the first instance. Upon petition and answer, where a peremptory mandamus is prayed for, the truth of the answer is admitted ; and the same is also the case on a motion on a showing against a rule to show cause why a mandamus should not issue ; the truth of the showing is admitted By the common-law, the return to an alternative mandamus is taken to be true, and the party is left to his remedy for a false return. Hoxie v. Co. Commrs., 25 Me. 333 ; Board of Police v. Grant, 9 S. & M. (Miss.) 77 ; Shepper v. Franklin Lyceum, 7 R. I. 523 ; Com. V. Commrs., 37 Penn. St. 277 ; People v. Barrows 27 Barb. (N. V.) 89 ; People v. Delaware, 2 Wend. (N. Y.) 255. 732 THE LAW OF TORTS. [Ch. XXIV. 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 effectua 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. {gY A legal obligation, which is the proper foundation for a mandamus, can only arise from common law, from statute, or from contract. An officer in the Queen's army, therefore, has no claim for a mandamus against the Paymaster of the Forces, to compel the payment of pay improperly with- held from him, as the obligation, though binding in equity and conscience, wants the vinculum juris, and is not a legal obligation, {h) Bat 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 applica- tion at their office, and then refused to pay it except on con- ditions which they had no right to impose, the court granted a mandamus, enjoining them to pay the money. (J) But the {e) Com. Dig. Mandamus, A. Rex. parte, 7 Ell. & Bl. 280. V. Clear, 4 B. & C. gor. Reg. v. Pons- (^) BuUer, J., Rex v. Stafford (Mar- ford, I D. & L. n6 ; 12 Law J., Q. B., quis of), 3 T. R. 651. 313. (h) Napier, Ex parte, 18 Q. B. 695 ; (/) Reg. V. Balby, &c., Turnpike 21 Law J., Q. B. 332. Trust, 22 Law J., Q. B. 164. Reg. v. (z) Rex v. Treasury (Lords of), 4 Ad. Abrahams, 4 Q. B. 161. Reg. v. Orton & E. 286, But see Reg. v. Commis- Tmstees, 14 Q. B. 146. Bassett, Ex sioners of Treasury, L. R., 7 Q. B. 3B7. ' Wilkinson v. Providence Bank, 3 R. T. 22 ; but the mere fact that right of ac- tion for damages exists, will not exclude a mandamus, where such remedy does not go to the specific relief sought. People v. Taylor, 3 How. Pr. (N. Y.) 78 ; People V. Thompson, 25 Barb. (N. Y.) 27 ; Spraggins v. Co. Ct., Cooke (Tenn.) 160 ; State V. McCrillis, 4 Kan. 250; Morgan v. Monmouth, &c., Co., 26 N. J. 99; Matter of White River Bank, 23 Vt. 478 ; Goldsby's Case, 2 Gratt. (Va.) 575 ; Comm'rs v. Lynch, 2 McCord (S. C.) 170; State v. Judges, 12 La. Ann. 342; Trustees v. State, 11 Ind. 205. '■' The fact that a person may have the specific relief sought for in equity, is no good ground for refusing a writ of mandamus. The application for the writ being addressed to the discretion of the court, it may consider all the equities, as well as the facts, and should be guided by the legal rights and equities of the case ; Hard- castle V. Maryland, &c., R. R. Co., 32 Md. 32 ; People v. Chicago, 53 111. 424 ; but if proceedings for the particular relief have been brought, and are pending in a court of equi.y, the party will generally be left to pursue his remedy there. lb. Sec. I.] REMEDY BY MANDAMUS. ;33 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 paying the money. (Ji) Where 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 ; (/) but if the prosecutor fails in establishing a clear statutory duty, the court will decline to interfere. (;;;) 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. (ri) 1487. Mandamus to compel the surrender of public docu- ments. — The court has refused to grant a mandamus to compel a private individual 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 doc- uments; {0) but the remedy by action is not an effectual remedy for the recovery of the documents 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 color of his office, the court will by mandamus compel the production of the documents, and if private and public documents have been so mixed up together that they can not be severed, the whole must be produced. (/>) Thus, a mandamus will be granted to a person who has previously served the office 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 (>5) Walmsley, Ex parte, 1 B. & S. 81. (») Bode (Baron de), In re, 6 Dowl, (/) Reg. V. Treasury (Lords of), 16 Q. P. C. 792. Hand, In re, 4 Ad. & E. B. 361. Reg. V. Ambergate, &c., Rail. 984. Smith, In re, ib. 976. Ricketts, Co., 17 Q. B. 967. But see Reg. v. Ex parte, Sb. <:jri^. Commissioners of Treasury, supra. {0) Reg. v. Hopkins, i Q. B. l6g. (m) Rex V. Treasury (Lords of), 4 (/) Rex v. Payn, 6 Ad. & E. 399. Ad. & E. 981. And see R. v. Receiver (?) Nottingham Town Clerk's Case, I ofMetrop. Police. 33 Law J., Q. B. 52. Sid. 31. Rex. v. Ingram, i W. Bl. 49. 734 THE LA W OF TORTS. [Ch. XXIV to a retired overseer of the poor, to compel him to deliver over the parish books to the new overseer ; (r) also to a dis- missed 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. (J) 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 office, and was the mere servant of the vestry, and could be dismissed, and the book taken away from him at their will, (f) ' 1488. A mandamus to restore a public officer to a freehold office from which he has been wrongfully dismissed, may be ob- tained on due proof of the wrongful dismissal. («) " A public officer appointed for life, or during good behaviour, can not lawfully be removed from his office for misconduct without being called upon to make, and being afforded an opportunity of making, his defense, for " Nullus liber homo disseisietur de (r) Rex V. Clapham, I Wils. 305. Reg. (;) Anon. 2 Chitt. 255. Rex v. Cioy- V. Fox, W. W. & H. 4. don, 5 T. R. 714. (i) Rex V. Wildman, 2 Str. 879. {u) Rex v. Morpeth Ballivos, I Str. 58. ' Mandamus is the proper remedy to compel the incumbent of an office to ' deliver the books, papers, property, and insignia of his office to his successor; Kimball v. Lamprey, 19 N. H. 215 ; Church v. Slack, 7 Cush. (Mass.) 226 ; as to compel a person whose term of office as mayor has expired, to deliver up to his successor the seal, books, papers, muniments, &c., the property,of the city, properly belonging in the custody of the mayor ; People v. Kelduff, 15 III. 492 ; People v. Head, 25 Id. 325 ; so to compel the delivery to the selectmen of the town, the books, papers and property belonging to an office, in the hands of persons who have usurped it ; Kimball v. Lamprey, ante ; to compel a town clerk to deliver the records of the town to his successor ; Taylor v. Henry, 2 Pick. (Mass.) 397 ; to compel ex-officers of a church or other corporation to deliver up the books and property pertaining to his office, to his successor ; St. Luke's Church v. Slack, f^«/, 7 Cuch. (Mass.) 226. ■' Mandamus was held a proper remedy to restore an inspector of tobacco to the office from which he had been irregularly removed ; Singleton v. Commrs., 2 Bay. (S. C.) 105 ; see also, Den v. Judges, 3 H, & M. (Va.) 1 ; State v. Common Council, 9 Wis. 254; Lindsey v. Luckett, 20 Tex. 516 ; Felts v. Memphis, 2 Head. (Tenn.) 650 ; Board of Police, &c., 35 Barb. (N. Y.) 535 ; but the title to an office can not be tried under this remedy ; People v. Stephens, 5 Hill (N. Y.) 615 ; People v. Detroit, 18 Mich. 338 ; Bonner v. State, 7 Ga. 473. It has been held a proper remedy to restore an attorney to the rolls, who had been improperly disbarred by an inferior tribunal ; People v. Justices, I Johns. Cas. (N. Y.) 181 ; Ex parte Bradley, 7 Wall. (U. S.) 364 ; Withers v. State, 36 Ala. 252. Sec. I.] REMEDY BY MANDAMUS, 735 libero tenemento suo nisi per legale judicium parium suorum vel per legem terrse." (ze/) If he has committed felony, or a misdemeanor, he must be tried and convicted by a jury be- fore the offense can work a forfeiture of his office, and if he has ' been guilty of miscciiduct 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 defense before he can lawfully be removed. Where a vicar removed a parish clerk for acts of misconduct alleged to have been committeG in the vicar's own view, the court granted a mandamus to com- pel 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 pro- secutor's misconduct, any kind of process for enabling him to disprove or explain it must be superfluous, 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 ; that 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 being heard, and of explaining his behaviour. "The important principle that every man ought to be heard before he is con- demned, so strenuously asserted by Lord Kenyon, (j)/) is not excluded," observe the court, "because the charge rests on the minister's personal observation, inasmuch as that is not incon- sistent with the disproof of criminal motives and intentions, with the mitigation to which other facts might possibly entitle the accused, or with condonation of the offense. This prin- ciple appears to us valuable to the 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." {z) Even although the officer, having been duly elected, has procured 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 law- fully be removed, {a) Where, however, the election itself was • (a/) Magna Charta, c. 29. Bing. 357. Cooper v. Wandsworth (.y) In Rex V. Gaskin, 8 T. R. 209. Board, &c., 32 Law J., C. P. 186. -And see per Ld. EUenborough, C. J., in {a) Reg. v. Sadlers' Co., 30 Law J., Buchanan v. Rucker, i Campb. 65. Q. C. 186 ; 32 ib. 337 ; 10 H. L. C (i) Reg. V. Smith, 5 Q. B. 623 ; 14 404. Law J., Q. B. 166. Doe v. Garthanri, I 736 THE LAW OF TORTS. [Ch. XXIV. void ab initio, qvl the ground of fraud, so that the party has never become a member, his admission may, it seems, be can- celled without a hearing. {I}) There seems to be a great deal of difference between a mandamus to admit, and a mandamus to restore, to a freehold office. The former is granted merely to enable the party to 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 2, prima 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 extraor- dinary remedy, he must lay such facts before the court as will warrant them in persuming that the right is in him. (t-)' 1489. How a freehold office may be 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 othi;rwise it shall be lawful to the grantor and his heirs to oust bim, and grant the office to another, {d) There are, says Lord COKE, three causes of forfeiture, or seizure of offices: I, 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 terrae." 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 (b) Reg. V. Sadlers' Co. ,ut sup. Reg. freehold office of clerk of the peace, see V. Gen. Council Med., &c.. 30 Law J., Harding v. Pollock, 6 Bing. 50. Q. C. 201. ■(') Earl of Shrewsbury's Case, 9 Rep, {c) Rex V. Jotham, 3 T. R. 575. 46 b. See Wildes v. Russell, L. R., i () 1499. 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 parliament to make compensation to all persons who may sustain injury 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 com- pensation, 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 ; {(j) 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 au- thority for so doing, {s) {m) Reg. V. Hurstbourne Tarrant, &c., Law J., M. C. 215. See Bush v. Martin, 27 Law J.,- M. C. 214; Ell. Bl. & Ell. 2 H. & C. 311. 246. Reg. V. Norfolk Commissioners of (/) Worlhington v. Hulton, L. R., i Sewers, 20 Law J., Q. B. 121. Bogg v. Q. B. 63. See Ringland v. Lowndes, Pearse, 10 C. B. 542 ; 20 Law J., C. P. 33 Law J., C. P. 25. 99. (f) Rex V. Nottingham Old Water (k) Reg, V. Rotherham, 8 Ell. & BI. "Works Co., 6 Ad. & E. 370. 906; 27 LawJ,, Q. B. 156. (r) Reg. v. Burslem Local Board, &c., (») Buvland v. Kingston-upon-Hull 29 Law J., Q. B. 242 ; 28 ib. 345. Local Board, 32 Law J., Q. B. 17. In (s) Reg. v. High Wycombe Rail. Co. Other cases the plaintiff is not concluded L. R., 2 Q. B. 310, decided under s. :6 by delay : V\'ard v. Lowndes, 17 C. B. of the Railway Clauses Act, 8 & 9 Vict 840- Reg. V. Churchwardens, &c., 27 c. 20. 746 THE LAW OF TORTS. [Ch. XXIV 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 necessary steps for settling the amount of purchase- money and compensation, {t) But commissioners acting in behalf of the public, and giving notice that the lands are wanted for public purposes, may revoke the notice before it has been acted upon, and can not 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 ; {w) 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 mandamus, {y) ' 1500. Mandamus to boards of health to make compensation. — Where a mandamus was issued to a local board of health, en- joining 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 (/) Reg. V. Birra. &c-., Rail. Co., 15 Q. Forests, 15 Q. B. 774. B. 647. South Yorkshire, &c.. In re, 14 {w) Reg. v. Rynd, 9 L. T. R., N. S. Jur. 1093 ; see post, Morgan v. Metrop. 27. Rail. Co. {y) Reg. v. Aire and Cal'der Nav. Co. («) Reg. V. Com. of Woods and Rex v. Leeds and Selby Rail. Co., ante. ' Minhinnah v. Haines, 26 N. J. 388; Himmelman v. Caffrau, 36 Cal. 411. Carroll v. Board of Police, 28 Miss. 38 ; People v. Supervisors, 5 How. (N. Y.) 292 People V. Edmonds, 19 Barb. (N. Y.) 468. Mandamus is the proper remedy to compel a municipal corporation to levy a tax to pay a judgment against it, where levy can not be made under the execution ; United States v. Bd. Supervisors, 2 Biss. (U. S.) 77 ; so to compel the state auditor to issue his warrant to pay money due from the state for property delivered to it under a contract ; People v. Secretary of State, 58 111. 90 ; so to compel supervisors to raise money to meet a claim against the county, even before the amount has been judicially determined ; People v. Supervisors of N. Y., 3 Abb. App. (N. Y.) 566 ; but a comptroller of a state or city can not be compelled to pay a debt against the state or city where there are no moneys in his hands appropriated for such purposes ; State v. Dubuclet, 24 1.a. Ann. 16 ; People v. Burrows, 27 Barb. (N. Y.) 89 ; People v. Connolly, 2 Abb. Pr. (N, V.) N. S. 315. Sec. I.] REMEDY BY MANDAMUS. 747 denied their liability to make compensation, but were ready to make it so soon as it had 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 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 prosecutor 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 Consolidation 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 pre- scribed, 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 com- pensation, of an expensive inquiry in the first instance, which in the result may prove entirely futile, and we think the ques- tion of liability should be first settled by mandamus. Sec- ondly, it is said that the applicant ought to have claimed a particular amount. We are of opinion that there is no nec- essity for taking such a step. It would not regulate the frame of the mandamus, or the future rights of the parties." {a) 1501. Effects of Idches or delay in app'ying for the writ. — A party who is entitled to a mandamus to a public board, to compel the making 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 prima facie case of laches or delay, the onus is thrown on the applicant of showing that he has not been guilty of such negligence as disentitles him to his remedy. {U) ' (2) II & 12 Vict. c. 63, s. 144. Road Trustees, 12 Q. B. 448. See Wor- (n) Reg. V. Burslem, &c., ante. thington v. Hulton, Ringland v. {b) Reg. V. Hurstboume Tarrant, 27 Lowndes, ante ; and ib. u. (p). Law J., M. C. 214. Reg. v. Halifax ' Where pai:ies have acquiesced a year in the proceedings sought to be set »side, tlie writ will be denied in the absence of a sufficient reason for delay. 748 THE LAW OF TORTS. [Ch. XXIV 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) 1502. The proceedings upon a mandnmus 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 first 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 Common Law Procedure Act, 1854, 17 & 18 Vict. c. 125, s. ^6, it is enacted, that upon appli- cation 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. "jf), 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. 1503- Proceedings by 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 officers, or for a quo warranto against any person claiming to be a cor- porate officer, the party intending to make the application may give notice in writing, and deliver a copy of the affi- davits, and cause may be shown in the first instance; and, if (c) Reg. V. Richmond (Recorder of), c. 125, s. 68 ; post. Ell. Bl, & Ell. 255. {e) Corner's down Practice (MandA- (d) I Wm. 4, c. 21, s. 3 ; 17 & 18 Vict. MUS). People V. Seneca, 2 Wend. (N. Y.) 264 ; four years ; True v. Melwaine, 43 N. H, 503 ; Wavel v. Lasher, i John's Case (N. Y.), 241 ; People v. Supervisors of West- chester, 12 Barb. (N. Y.) 446 ; People v. Del. Common Pleas, 2 Wend, (N. Y.) 256 People V. Supervisors of Ulster, 16 Johns. (N. Y.) 59. Sec. I.] /REMEDY BY MANDAMUS. 749 no sufficii^rt cause be shown, the rule may be made absolute, and a perriwptory writ of mandamus issued, as therein pro- vided. 1504. 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 (Z"), and a refusal or withholding of compliance on the part of the defendant; (^) ' but the objec- tion that no sufficient demand and refusal appear must be taken before the merits are discussed. {It) Where a party applies for a mandamus to compel church- wardens 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) 1505. Requisites of the writ. — If a writ of mandamus com- mand the defendant to do more than he is under a legal obli- gation to perform, the writ is invalid, and will be quashed. {Ji) And where a mandamus orders several things to be done, and is bad in respect of one of the things commanded, it is bad in tota. (/) ' If the writ omits a necessary fact, it can not be cured (/) Reg. V. Brist. and Ex. Rail. Co., (0 Rex v. Clear, 4 B. & L. goi ; Rex 4 Q. B. 162 ; 12 Law J., Q. B. 106. v. Smallpiece, 2 Chitt. 288. (g) Rex V. Brecknock, &c., Canal Co., {k) York and North Mid. Rail. Co. v. .3 Ad. & E. 222. Reg. v. Trustees cf Milner, 15 Law J., Q. B. 379. Reg. v. Cheadle Highway, 7 Jur. 373. Reg. v. Lond. and South-West. Rail. Co., 17 Norwich and Brandon Rail. Co., 3 D. & Law J., Q. B. 326. Reg. v. Ledgard, t L. 385. Q. 13. 623. Reg. V. Caledonian Rail. (X) Reg. V. East Co. Rail. Co., 10 Ad. Co., 16 Q. B. 19. 6 E.531. (/) Reg. V. Tithe Com., J9 Law J., Q. B. 177. ' Leonard v. House, 15 Ga. 473 ; People v. Minor, 37 Barb. (N. Y.) 466 ; Com. V. Pittsburgh, 34 Penn. St. 277 ; State v. Governor, 25 N. J. 331. As a general rule an applicant for a mandamus must show a demand ; Alexander v. McDowell, 07 N. C. 330 ; but where the duty is imperatively imposed by law, as to levy a tax, a mere neglect to perform the duty is sufBcient ; Columbia Co. v. King, 13 Fla. 451 ; State V. Hull, 17 Minn. 429 ; State v. Sabine, 7 Rich. (S. C.) 234. If the relator is not entitled to what he deihands in the alternative writ, his motion for a peremptory writ should be denied, although it appears that he is entitled to 3.fortion of the reliefs demanded. The peremptory writ must follow the alternative. People v. N. Y. Supervisors, 18 How. Pr. (N. Y.) 52 ; People v. Baker, 35 Barb. (N. Y.) 105 State v. Hastings, 10 Wis. 518. 750 THE LAW OF TORTS. [Ch. XXIV. by the return. (;«)' 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. («) 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 conditional, or dependent upon a contin- gency, a writ commanding the doing of the thing at once, without giving any discretion, or providing for the contingency, will be defective, (p) 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, unless it assigns some sufficient reason why the party is no longer to have his election. (/) 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 sum 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. {jY {>ii) Reg. V. South-East. Rail. Co., 4 supra. H. L. Ca. 471 ; 20 Law J., Q. B. 428. {q) Reg. v. Southampton Port Com- («) Delamere (Lord, v. The Queen, L. missioners, I B. & S. 5 ; 30 Law J., Q. R., 2 H. of L. 419. B. 224 ; L. R.. 4 Eng. & Ir. App, 449. (0) Reg. V. St. Luke's, Chelsea, 31 Law if) Rex v. Margate Pier Co., 3 B. & J., Q. B. 50. Aid. 24. Reg. v. Hull and Selby Rail. i.P) I'^^g- ■*'• South-Eastern Rail. Co., Co., ante. ' No amendment is'allowed to cure a defect in an alternative mandamus after the return day ; People v. Metropolitan Police Commis., 5 Abb. Pr. (N. Y.)N. 8. 241; But see State v. Gibbs, 13 Fla. 55, where it was held that an alter navive mandamus may be amended, and Columbia Co. v. King, 13 Fla. 451, where it was held that a peremptory mandamus can not be amended. In State v. Alderman, I So. 30, it was held tliat an alternative mandamus might be amended where the peremptory writ could not issue in the exact terms of the alternative, by striking out immaterial mat- ter. ' In all cases the proceedings, on their face, should show a clear right to the relief demanded, and set forth all the material facts, so that they may be admitted or traversed ; State v. Hustings, 10 Wis. 518 ; State v. Elwood, 11 Id. 17 ; Trustees Sec. I.] REMEDY BY MANDAMUS. 751 1506. Parties to whom the tvrit is to be 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; (^) but it may be directed either to the cor- poration in its corporate name or to those who by the consti- tution of the corporation ought to do" the act. {zi) A manda- mus to compel the admission to customary or copyhold estates must be directed to the lord and steward jointly, and not to the steward alone, in order that the interests of the lord may be effectually protected, {w) It is at the peril of the person who desires the writ to have it properly directed. (/) 1507. Service of the writ may be effected by delivery of a copy of the writ, but the original writ ought to be shown to each party served at the time of the delivery of the copy, (s') 1508. Return to the writ. — The first writ of mandamus always concludes with a command of obedience, or cause to be shown to the contrary ; («) and the 9 Anne, c. 20, iU) requires a return to be made to the first writ. The return is generally {s) Reg. V. Hereford (Mayor, &c., of), (^) Rex v. Curghey, 2 Burr. 782. 2 Salic. 701. (2) Reg. v. Birm, &c. Rail. Co. i Ell. {t) Rex V. Ripon (Mayor of), ib. 433. & Bl. 293 ; 22 Law T., Q. B. 195. Cor- Rex V. Norwich (Mayor, &c.), I Str. 55. ner's Crown Pr., p. 227. (a) Rex V. Abingdon (Mayor, &c.), I {a) Corner's Crown Pr., Mandamus. 'Ld. Raym. 559. {b) Extended by i Wm. 4, c. 21, a. 3, (aj) Reg. V. Powell, I Q. B. 360. to all writs of mandamus. V. People, 12 111. 248 ; People v. Hatch, 33 Id. g. Thus a petition for a mandamus to county commissioners to compel them to declare a person a commissioner of defds, should aver affirmatively that a vacancy existed when the alleged election took place ; Rose v. Co. Commrs, 50 Me. 243. In order to warrant the issue of a mandamus, the petition should not only aver that the defendant has omitted a manifest duty, and contain all necessary affirmative allegations, but should also contain an averment that other facts, which would constitute an excuse, do not exist ; Hoxie v. Co. Commissioners, 25 Me. 333 ; State v. Board of Trustees, 4 Nev. 400 ; People v. Township Board, 14 Mich. 28 ; Commonwealth Bank v. Canal Com- missioners, 10 Wend. (N. Y.) 25. ' People V. Judges of Westchester, 4 Cow. (N. Y.) 93 ; People v. Richey, 19 111. 415 ; People v. Herkimer Common Pleas, 7 Wend. (N. Y.) 536 ; People v. Essex Common Pleas, i How. Pr. (N. Y.) 114. The writ should be served by giving the original writ to the defendant, and if there is more than one defendant, copies should be given to the others, as a part of the command is that the writ shall be returned ; State v. Brady, 6 Phil. (Penn.) 121 ; but it may be served by copy, although the proper way is to deliver the original writ; Hempstead v. Underh'" 80 Ark. 337. 752 THE LAW OF TORTS. [Ch. XXIV 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 lady, the Queen, at the time and place in the writ mentioned, either that they have done what by the said writ they are commanded to do, using generally the very words of the mandatory part of the writ, {c) or, if they have not yielded strict or substantial obedience, setting forth the grounds and reasons for their disobedience, which reasons must be fully and carefully specified, and shown to be sufficient in law to excuse or justify such disobedience. When the writ has been issued to a judge, magistrate, or judicial officer, commanding him to receive, hear, and de- termine 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 determined, or that he has received, heard, and dismissed, the informatioh or complaint. The court can not, 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. (^) ' (c) Corner's Crown Pr., Mandamus, T. R. 493. Rex v. Griffith, 5 B. & Aid. Appendix. 735. Rex v. London (Mayor, &c., of), (d) Reg. V. Mainwarning, Ell. Bl. & 3'B. & Ad. 268. Ell. 474 ; ante. (g) Reg. v. New Windsor (Mayor (e) Rex V. Exeter (Bishop, &c.), I Ld. of), 7 Q'. B. 917. Com. Dig. Man- Raym. 223. DAMUS. (/) Rex V, York (Archbishop of), 6 ' The answer to a mandamus must respond to all the allegations of the writ ; Gorgas V. Blackburn, 14 Ohio, 252 ; and must set forth distinctly all facts essential to excuse the defendant from a performance of the acts sought to be enforced ( Society, &c., v. Com., 52 Penn. 'St. 125 ; State v. Avery,. 14 Wis. 122 ; People v. White, II Abb. Pr. (N. Y.) 168 ; if the answer is evasive ; State v. Cincinnati, 19 Ohio, 252 ; or not responsive to all the material allegations of the writ, and does not set up a legal excuse, a peremptory mandamus will issue ; Gorgas v. Blackburn, 14 Ohio, 252 ; People v. Collins, 7 Johns. (N. Y.) 549 ; People v. Burrows, 27 Barb. (N. Y.) 89. All the allegations in the return unless denied by the relator, are taken to be true, but if denied, they must be proved ;, People v. Supervisors of Delaware, ■ How. Pr. (N. Y.) 50. If the defendant moves to quash the writ, the motion is Sec. I.] REMEDY BY MANDAMUS. 753 1509. The return to a mandamus to restore a dismissed public cfficer to his office, must set out all the necessary facts precisely, to show that the party has been removed in a legal and proper manner, and for a legal cause ; and, where he has been dis- charged for misconduct, that he was previously heard in his own defense, or that he was summoned to answer the charge and made default, and that the charge was proved against \i\m.{li) 1510. Return setting up inability or impossibility of perform- ance — Expiration of statutory power. — A writ of mandamus sup- poses 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 suggestion, and traversing it, is good. Where the alleged obligation is founded on public Acts of Par- liament recited in the writ and return, and it appears that the statutory power has expired, the writ of mandamus is bad, and will be (juashed. (?) It is, however, no objection to an appli- cation 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. {Ji) ' 1511. Pleas to the return — Traverse of material allegations. — By 9 Anne, c. 20, s. 2, it is enacted, that every person pro- secuting a writ of mandamus may pl-ead to, or traverse, all or any of the material facts contained in the return, to which the person making the return shall apply, 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 joined on such proceedings, the person suing the writ may try the same as an issue joined in such action on the {K) Rex V. Liverpool (Mayor of), 2 Rail. Co., i6 Q. B. 884. Reg. v. Am- Burr. 733. Rex v. Faversham Fish Co., bergate, &c., i Ell. & Bl. 381. 8 T. R.352. Rex V. Lyme Regis (Mayor, (I) Ringland v. Lowndes, 33 Law J., &c.), 1 Doug. 149. C. P. 25. (j) Reg. V. Lond. and North-West. treated as a demmrer and admits the truth of its allegations ; People v. College, &c., 7 How. Pr. (N. Y.) 2go. ' People V. Commrs. of Fort Edward, 11 How. Pr. (N. Y.) 2g ; People v. Tremain, 17 Id. 142 ; People v. Burrows, 27 Barb. (N. Y.), 89 ; People v. City of Chicago, 51 III. 58 ; People v. Stout, 23 Barb. (N. Y.) 349. A peremptory mandamus may be quashed if it was prematurely, improperly, or unnecessarily issued, or if bad in sub- stance, or if it be impossible or illegal to obey it, and these questions may be raised •>n a motion to attach for contempt ; Weber v. Zimmermann, 33 Md. 45. 11.-48 754 1'HE LAW OF TORTS. [Ch. XXIV. 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 man- ner as he might have done in such action on the case, and a peremptory 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 skall 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 action for making such return. And the courts are to allow (s. 3) to persons to whom any writ of man- damus may be directed, or to persons who shall sue or pros- ecute 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 all statutes of jeofails, are thereby (s. 7) extended to all writs of mandamus and proceedings thereon ; and by i 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, and to the recovery of damages and costs, are extended to all writs of mandamus and the proceedings there- on. (/) 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) ' (/j See Reg. v. Fall, i Q. B. 636. {m) Reg. v. Ambergate, &c., 17 Q. B. 957. ' A return that is 'insufficient because it does not answer the allegations of the writ, or properly meet or avoid them, should not be traversed, because the matter of return should not be put in issue ; Com. y. Justices, 2 Va. Cas, 9 ; and such a plea taking issue on an immaterial return is bad; State v. Eaton, 11 Wis. 29; if tha return is insufficient, the relator may demur ; Silverthorne v. Warren R. R. Co., 33 N. J. 173 ; Com. v. Commrs. of Allegheny, 32 Penn. St. 218 ; People v. Beebe, i Barb. (N. V.) 379 ; or he may move for a supplementary return ; People v. Common Pleas, 9 Wend. (N. Y.) 427 ; and, if the return is evasive, and fails to meet the allegations ef the writ, or set forth a legal excuse for not doing the act, a per- emptory mandamus will issue ; State v. Cincinnati, 19 Ohio, 116. If the relator demurs to the return, he thereby admits its truth, and an issue of law is thus rai=''d / People V. Cario, 50 111. 154 ; People v. Vermillion County, 47 111. 256. Sec. I.] REMEDY BY MANDAMUS. 755 1512. 'Statutory protection to certain public officers, to whom writs of mandamus are directed, is given by i 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. 3o), are sometimes issued to officers and other persons commanding them to admit to offices, and perform other matters in respect whereof the persons to whom the writs are directed claim no right or interest, or whose functions are merely ministerial in rela- tion to such offices, and that it may be proper that such officers should in certain cases be protected against the payment of damages or costs ; wherefore it is enacted, that it shall be law- ful 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 call- ing 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 per- son 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 In- terpleader Act, I & 2 Wm. 4, c. 58, for giving relief against adverse claims made 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 be made and joined on behalf of such other person as may be mentioned in such rules ; and, in that case, such other per- son may frame the return, and conduct the subsequent pro- ceedings at his own expense; and, in such case, if any judg- ment 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 *ould otherwise have had. («) See I and 2 Wm. 4, c. 58, s. 8. 7S6 THE LAW OF TORTS. [Ch. XXIV. 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. s). After a demurrer to a return made 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 ; {p) 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 bona fide, and is not merely seeking to raise frivolous objections. (/) 1513. 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 argu- ment, 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. ($') 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 ; and 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) ' {0) Reg. v.Paynter, 14 Law J., M. C. if) Clarke v. Leicester, ftc:. Canal Co., 182. 6 Q. B. go2. Rex v. Margate Pier Co., {f) Reg. V. Cheek, 9 Q. B. 947 ; t6 3 B. &'Ald. 224. Law J., M. C. 65. (j-) Reg. v. Stamford (Mayor of), 6 Q. ( q) Reg. V. Powell, I Q. B. 360. B. 441. ' People V. Cairo, 50 111. 154; State v. Sabine, 9 Rich. (S. C.)234; Silver v. The People, 45 111. 224 ; but substantial defects in the writ may be taken advantage of at any time before the peremptory mandamus is awarded ; People v. Supeivisois of Fulton, 14 Barb. (N. Y.) 52. Sec. I.] REMEDY BY MANDAMUS. 757 1514. Review of proceedings in mandamus by writ of error. — By 6 & 7 Vict. c. dj, s. i, it is enacted, that whenever the per- son 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 proceedings taken as upon demur rer to pleadings in personal actions ; and the courts shall there- upon adjud-ge 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 in whose favor they decide. And whenever any such judgment has been given, or when- ever issue in fact or in law has been joined upon the pleadings, and judgment given thereon, any party to the record who thinks himself 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 pros- ecuted against any person for anything done in obedience to a peremptory writ of mandamus. ISI5' Damages and costs. — Wherever a party traversing a return obtains a verdict, he is now, since the passing of the i Wm. 4, c. 21, s. 3, entitled to some damages and costs; and if, at the trial of any issue raised on a traverse of any material allegation contained in the return, the jury omit to find dama- ges, the judge who tried the cause may order, from his recollec- tion, the verdict to be entered on the postea for nominal damages, to enable the successful party to recover his costs, {f) 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 i 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 writ shall be granted or refused, and (/) Reg. V. Fall, l Q. B. 636. As to costs in error, see supra. 758 THE LAW OF TORTS. [Ch. XXIV. 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 authorized to order and direct by whom and to whom the same shall be paid. 1516. Judgment non obstante veredicto. — Where the issues raised are altogether upon immaterial points, and the return is virtually and substantially a good return, the court will give judgment for the defendant, notwithstanding the finding of the jury on those immaterial issues for the plaintiff. (?/)' 1517. Action or information for a false return. — Actions for a false return are maintainable by the party injured or aggrieved thereby, {w) 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 statute. The action must be brought against the party or parties who caused the return to be made, (jv) It is not maintainable against one who voted against the false return, and was consequently no party to it. {zY If the matter of the return concerns the public government, and no particular person is so concerned 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) 1518. Attachment for disobedience of peremptory writ 0/ mandamus. — 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 («) Reg. V. Darlington School Govern- Raym. 564. ors, 6 Q. B. 719. (z) R. v. Pilkington, Carth. 172. (to) Green v. Pope, i Ld. Raym. 125. (a) Surgeons' Company's case, I Salk. Vaughan v. Lewis, Carth. 227. 374. Rex i^. Abingdon (Mayor of), 2 (y) Rex V. Ripon (Mayor of), I Ld. Salk. 431. ' But where a relator in a mandamus has pleaded to an amended return to an alternative mandamus, he can not subsequently question its sufficiency in law, and if the verdict is against him, judgment non obstante, Sec, can not be issued ; People v, Board of Met. Police, 26 N. Y. 316. ^ On motion for a mandamus, the return is taken as true by the court, and the party injured must proceed for a false return, and if it is found false by the jury, he recovers damages equivalent to the injury sustained, and thereupon a peremptory mandamus issues to the defendant to compel him to do his duty ; Tallapoosa v. Turner, 21 Ala. 661. / Sec. II.] MANDAMUS A T COMMON LA W. 759 to do more than he is bound to do, or that he is enjoined to do it in some particular mode, where the law gives him an option or discretion in the mode of performance. But no return will be admitted to a peremptory writ of* mandamus other than a certificate of perfect obedience and due execution of the writ, {b) ' SECTION II. OF THE CLAIM TO A WRIT OF MANDAMUS IN AN ACTION AT COMMON LAW. 1519. Of the union of an action in respect of a private injury •with an application for a mandamus.— 'Qy the Common Law Procedure Act, 17 & 18 Vict. c. 125, it is enacted (s. 68), that the plaintiff, in any action in any of the superior courts except replevin and ejectment, may endorse upon 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 defendant to fulfill any duty in the fulfillment of which the plaintiff is personally interested. The declaration in such action (s. 69), is to set forth sufficient grounds upon which such claim is founded, and that the plain- tiff 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 plain- tiff that a mandamus do issue, the court in which such judg- (b) Reg. V. Ledgard, i Q. B. 6i6. {c) See Fotherby v. Metrop. Rail. Co., fast. I ' The remedy against a board of supervisors for disobedience of a mandamus is not by an attachment against the board, but against the individual members guilty of contempt. People v. Delaware, 9 Abb. Pr. (N. Y.) N. S. 408. 76o THE LAW OF TORTS. [Ch. XXIV. ment is given may (s. 71), if it shall see fit, besides issuing exe- cution in the ordinary way for the costs and damages, also issue a peremptory writ of mandamus to the defendant, com- manding him forthwith to perform the duty to be enforced. The writ need not recite (s. 72) the declaration or other pro- ceedings, or the matter therein stated, but may simply com- mand 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 when- ever a public duty, in the fulfillment 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 niay (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. We have seen that the prerogative writ of mandamus is never granted for the enforcement of a mere private duty, where there is a clear cause of action, and compensation in damages would be an effectual remedy. And the same rule has been held to apply to the action of mandamus ; and that Adhere 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 appropriate remedy, the action (d) Fotherby v. Metrop. Rail. Co., L. R., 2 C. P. 188. Sec. 11.] MANDAMUS AT COMMON LAW. ;6i for a mandamus does not lie. A mandamus, therefore, can not be claimed to make a debtor pay a mere private debt, in respect of which the ordinary remedy by action is available, (f) 1520. Actions in which a claim for a mandamus may be sustained. — Wherever, by charter or Act of Parliament, a duty is imposed upon a corporate body or chartered company, in the fulfillment 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 fulfillment of the duty. (/) Thus where the plaintiff, in an action for a mandamus 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 pro- vision made for the registration of the names of all the pro- prietors of such shares ; and showed that a register of share- holders had been established, 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 re- fused, &c., it was held on demurrer that the plaintiff was entitled to the writ ; for wherever there is a duty in the fulfillment of which the plaintiff is personally interested, and which ought to be fulfilled under royal charter, the non-per- formance being a grievance to an individual, that is a case for an action for a mandamus, i^g) It is a case also, as we have seen, where a prerogative writ would be granted independently of the statute. {K) 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 proprie- tor of certain shares, numbered, &c., and that the defendants {e) Bush V. Bevan, 32 Law J., Exch. 116. But a company is not bound to 54 ; 1 H. & C. 500. Benson v. Paul, 6 register a transfer not in accordance with Ell. & Bl. 273 ; 25 Law J., Q. B. 274. the statutable form, Reg. v. Gen. Cem (/) See Morgan v. Metrop. Rail. Co., Co., 6 Ell. & Bl. 415 ; 25 Law J., Q. B L. R., 3 C. P. 553. 342. Copeland v. North-East. Rail. Co.. (^■) Ld. Campbell, Norris v. Ir. Land 6 Ell. & Bl. 277. Co., 8 Ell. & Bl. 512 ; 27 Law J., Q. B. (A) Ante. 762 THE LAW OF TORTS. [Ch. XXIV. removed his name from the register, and refused, after demand, to restore it, &c., and claimed damages and a mandamus, it was held that the claim was properly made. (?) Where the plaintiff, in his declaration against the clerk of a local board of health, set forth that certain improvement commissioners, 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 satified by the local board out of rates they were authorized 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 provisions of the Common Law Procedure Act," ob- serves Hill, J., "now enable a plaintiff, in an action for which he might recover judgment, 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 may 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 Parlia- ment, are generally a fluctuating body in the nature of a cor- poration, represented 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 Act. (/) But for the statute, th« commissioners who retain, or order the services to be rendered by, the plaintiff, would be personally liable; but as they are acting for public purposes under statutory authority, with (z) Swan V. Brit. Austr. Co., 7 H. & N. (J) Ward v. Lowndes, i Ell. & EIL 604 ; 2 H. & C. 175. Ward v. South- 940 ; 28 Law J., Q. B. 265 ; 29 Id. 40. East. Rail. Co., ag Law J., Q. B. 177. (/) Ante. Bush v. Martin, 33 Law J., Exch. 17. Sec. II.] MANDAMUS AT COMMON LAW. 763 power over a public fund created by the statute, they are gen- erally expressly exempted from personal liability, aud 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 authorized to administer. An action to enforce payment of these debts must, as we have seen, be brought against them in the name of their clerk, and when judgment is obtained against the clerk, the public fund, or the rates, are to be resorted to for its satisfaction, and not the private property of the commissioners. (;«) 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 com- menced within six months of the recovery of the judgment ; {0) 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 bona fide execution of the statutory powers entrusted to them, so as to exempt them, and their clerk or secretary, from a per- sonal liability ; (/) for if they have exceeded the powers con- ferred upon them,, and are not protected from personal liability by the statute, they can not charge the debts they incur, or the consequences of their unauthorized proceedings, upon the rates, and a mandamus can not issue to compel them to do what they have no power or authority to do. {g) 1521. Actions in which a claim for a mandamus can not be sus- tained. — If, in an action for a mandamus, nothing more appears upon the record than that the action is brought for the , (m) Hall V. Taylor, Ell. Bl. & Ell. 107 ; Board, ante. 87 Law J., Q. B. 311. Kendall v. King, (;>) Southampton, &c., Bridge Co. v. 17 C. B. 483. Southampton Local Board, ante. (ft) Ante. (q) Duncan v. Findlater, ante. Buab (0) Burlard v. Kingston, &c., Local v. Beavan, 32 Law J., Exch. 58. 764 THE LAW OF TORTS. [Ch. XXIV. 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 exercise of statutory powers, and there is nothing to exclude the personal liability of the defend- ants, and to show that the ordinary remedy by action would not be available, a claim for a mandamus can not be sustained. Thus, where the plaintiffs in an action for a mandamus set forth that the defendant, as clerk to certain commissioners, for putting into execution a local improvement act, became in- debted 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 labor, journeys and attendances, as solicitors for the 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 moneys and iunds which might be in the hands of the commissioners, if the com- missioners had funds, and if not, then upon a rate leviable under the statute ; that the plaintiffs were personally inter- ested, &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 man- damus had been shown, for there were various ways in which the commissioners might retain the services of an attorney in matters relating to their official 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 such, 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) (r) Bush V. Beavan, 32 Law J., Exch. 60. Some of the passages in the judg- Sec. II.] MANDAMUS A T COMMON LA W. 765 1522. Declaration in an action 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 declara- tion 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) 1523. The pleadings in the action are, as previously men- tioned, to be the same, as near as may be, as in an ordinary action for the recovery of damages. 1524. Orders for the rectification of the register of share- holders in joint-stock companies. — The 25 & 26 Vict. c. 89, s. 35, enables any of the superior courts of law or equity to make orders for the rectification of the register of shareholders of registered joint-stock companies, on the application of per- sons 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 applicant to have his name entered on, or erased from, the register ; but when once a person has been put on the register, the company can not erase his name there- from, except at the instance of a party having a better title, or by showing that the registration is a nullity, by reason of fraud, misrepresentation, or forgery, [u) The courts will not exercise ment in this case do not appear to be {s) Ward v. Lowndes, I Ell. & Ell. reconcilable with the judgment of the 940 ; see ante. Court of Queen's Bench, in narrowing {t) See Lowe's case, L. R., 9 Eq. Ca. the operation of ss. 69, 70, and 71 of the 589. Common Law Procedure Act, 17 & 18 («) Swan, Ex parte, 7 C. B., N. S. 400 ; Vict. c. 125, ante. Ward v. Lowndes, i 30 Law J., C. P. 131. Addison on Con. ^11. & Ell. 940; 28 Law J., Q. B. 265 ; tracts, 6th ed., pp. 131-134. U. ;66 THE LAW OF TORTS. [Cn. XXIV. the powers given by this section, except in cases which are clear and free from complication, (z;) Most of the applications for the rectification of the registers under the above section take place on the winding up of a com- pany, (j/) and in deciding them the court will take into con- sideration who is the applicant, whether the official liquidator, as the representative of the company, or the transferor of shares, the transfer of which was not registered before the com- mencement of the winding up. (^r) 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 bona 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 diffi- culties, the transferee a person of small means, and the shares were sold by the transferor in order to get rid of his liability. (a) Where, however, a discretion is given to the directors by the articles of association, a transferor can not 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, (b) And there is no duty, it seems, on the 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 by 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 has 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) {v) Re Heaton Steel and Iron Co., (z) Sichell's case, L. R., 3 Ch. App. Simpson's case, L. R., 9 Eq. Ca. 91. Ilg. (_)') Musgrave's case, L. R., 5 Eq. Ca. (a) Weston's case, L. R., 4 Ch. App. 193. Sahlgreen's case, L. R., 3 Ch. App. 20 ; Id, 6 Eq. Ca. 238. 323. ^f Bank of Hindustan, China, and {b) Shipman's case, L. R., 5 Eq. Ca. Japan, Ex parte Kintrea, L. R., 5 Ch. 219. And see Holden's case, L. R., S App. 95. As to such applications by an Eq. Ca. 444. infant, see Hart's case, L. R., 6 Eq. ("a. \c) Custard's case, L. R., 8 Eq. Ca, 512. Lumsden's case, L. R., 4 Ch. App. 438 ; 38 L. J., Ch. 6l0. 31. (d) Ex parte Ward, 37 Law J., Eieh, Sec. II.] MANDAMUS AT COMMON LAW. 76; 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 the company which has registered the forged transfer, andi which, by giving certiiicates to the forger, has thus enabled him to hold himself out to the world as tlie 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 recognize him as a shareholder, with interest at four per cent. (/) (e) Or he may file a bill in Chancery ; (/) Re Bahia and San Francisco Roii. Johnson v. Renton, L. R., 9 Eq. Ca. 181. Co., antt. INDEX OF CASES. Aaron v. Alexander, ii. 149, 563. Abbot V. Weekly, i. 157. Abbott V. Godoy, ii. 506. V. Macfie, i. 40, 6og. Aberaman Iron Works v. Wickens, ii. 417, 427. Aberdeen Arc. Co. v. Sutter, i. 514. Abernethy v. Hutchinson, i. 21, ii. 688. Aberystwith P.ier Co. v. Cooper, ii. 570. Abington v. Lipscomb, i. 500. Abley v. Dale, ii. 155, 667. Abraham v. Reynolds, i. 608. Abrahams V. London (Lord Mayor, &c., of), ii. 687. Absor V. French, i. 323, 441. Ackland v. Paynter, ii. 130. Ackroyd v. Smith, i. 151. Acton V. Blundell, i. 987, 109. Adam v. Bristol, ii. 536. Adams v. Adams, ii. 510. V. Andrews, i. 453. V. Bafeald, ii. 511. V. Broughton, i. 594. V. Cheverel, ii. 537. V. Crane, i. 796. V. Gt. West. Rail. Co., ii. 567. V. Lane, and Yorks. Rail. i. 609, 637. Adarason v. Jarvis, ii. 400, 410, 430, 471. Addison v. Overend, i. 548. Adlam v. Colthurst, i. 408. Aga Kurboolie Mahomed, ii. 120. Agra Bank, Ex parte. Re Worcester, i. 554- Agra, The, and The Elizabeth Jenkins, >• 597- 11.-49 Ainsworth v. Walmsley, ii. 472. Aitkenhead v. Blades, i. 387. Albert (Prince) v. Strange, i. 21, ii. 688. Alderson v. Davenport, ii. 118. Aldred's case, i. 10, 235. Aldred v. Constable, i. 497. Aldridge v. Gt. West. Rail. Co., i. 368, 374. 729, 738. Aldworth v. Stewart, ii. 49. Alexander v, Alexander, ii. 479. V. Gibson, ii. 453. V. Jones, ii. 570. V. N. E. Rail. Co., ii. 364, 386. V. Southey, i. 502. Alford V. Vickery, i. 782. Alfred v. Farlow, ii. 343, 392. Allan V. Gorame, i. 455. AUardice v. Robertson, ii. 359. AUday v. Gt. West. Rail. Co., i. 731. Allen, Ex parte, i. 510. V. Allen, ii. 489. V. Bonnett, i. 527. V. Clark, i. 6i6. V. Darcy, ii. 489. V. Flicker, i. 813. V. Hayward, i. 303, ii. 261, 29|a V. L. and S. W. Rail. ii. 42. V. Smith, i. 669, 733. V. Walker, i. 394, 433, ii. 9, V, Wright, ii. 18. Alleston v. Moor, ii. 350. Allison, In re, ii. 206, 220. Allsop V. AIlsop, ii. 648. AUwood Vi Heywood, i. 516. Alsager v. Close, i. 505, 559. no INDEX OF CASES. Alston V. Grant, i. 239. V. Scales, i. 426, 473. Alton V. Mid. Rail. Co., ii. 512. Amalia, The, i. 596. Amann v. Damm, ii. 328, 357. Ambergate, &c.. Rail. Co., v. Mid. Rail. Co., i. 819. Amies v. Stevens, i. 747. Amoiy V. Brown, i. 88. Amys V. Creed, i. 287= Ancaster v. Milling, i. 452, 461. Anderson, Ex parte, ii. 689. V. Buckton, i. 10, 471. V. Mid. Rail. Co., i. 781, 784. V. Passman, i. 702. V. Smith, i. 6g6. Andrew, Re, i. 681. V. Boughey, ii. 588. Andrews v. Askey, ii. 520. V. Buckton, i. 44. V. Chapman, ii, 335. V. Dixon, ii. 132, 157. V. Elliott, ii. 57S. V. Harris, ii. 106, III, 159. Anglo-Danubian Co. v. Rogerson, ii. 68. Anichini v. Anichini, Igo. Annapolis, The, i. 594. Anne and Mary, The, i. 622. Ann Elliott, In the goods of, ii. 476. Anon., 3 Atk. ii. 99. 2 Chitt. ii. 732. 2 Chitt. ii, 724. Cro. Eliz. i. 365. 2 Dick. i. 680. Dyer, pi. i. 44. cited 16 East, ii. 606. Keilw. 98, pi. 4, i. 146. Lofft, 842, i. 121, ii. 415. 6 Mod. ii. 25, 78, 7 Mod. ii. 53, 121. 11 Mod. i. 146. 12 Mod. ii. 701. Poph., i. 511. 2 RoUe's Rep., i. 418. 1 Salk, ii. 180. 2 Sim., N. S., ii. 495. Skin., i. 56. 2 Str., ii. 739. 2 Swanst., ii. 393. cited 4 Taunt., ii. 442. Anon. 3 Wils., i. 391. V. Moor, 823. V. Sabine, i. 52. Anquez v. Anquez, ii. 479. Ansett V. Marshall, ii. 680. Anthony v. Brecon Markets Co., i. 239, V. Haney, i. 456. Arbouin v. Anderson, i. 506. Arcedeckne v. Kelk, i. 226, 227. Archer v. Bennett, i. 135. V. James, ii. 677. V. Williams, i. 702, 704. Arden v. Goodacre, ii. 166, Argentina, The, i. 522. Aris V. Orchard, ii. 570. Arkwright v. Gell, i. 179, 184, 139. Arlett V. Ellis, i. 160. Armistead v. White or Wilde, i. 754, 760. Armory v. Delamirie, i. 512, 560, 699, Armsworth v. S. E. Rail Co., i. 638, Armytage v. Haley, ii. 656. Amison, Ex parte, i. 801, 813. Arnold v. Hamel, ii. 233. V. Blaker, i. 258. Arthington v. Fawkes, i. 229. Arthy v. Coleman, ii. 262. Arundell v. Tregono, ii. 87. V. White, ii. 88. Ash V. Dawnay, ii. 127. Ashbury, Ex parte, i, 363. Ashby V. Harris, i. l5. V. White, i. 15, 16, 50, 51, 58. Ashley v. Harrison, i. 13, 210, 592, ii. 384, 580. Ashley's case, ii. 413. Ashmore v. Hardy,, i. 557. Ashton, In re, i. 537. V. Blackshaw, i. 535. Ashworth v. Heyworth, i. 26. V. Stanwix, i. 276, 605, 6o8. Aslin V. Parker, i. 474. Assop V. Vates, i. 604. Astley V. Younge, ii. 319. Aston V. Aston, i. 346. V. Heswen, i. 584, 631. V, Perkes, ii. 586. Atkins V. Kilby, ii. 224, 237. V. Owen, i. 505. Ati^insoa y. Marshall, '\. 504. V. Matteson, ii. 606. INDEX OF CASES. 771 Atkinson v. Newcastle and Gateshead Waterworks, i. 68. V. Raleigh, ii. 87. V. Wame, ii. 55. Attack V. Bramwell, i. 387, 481, 804, 815; 839, 840. AttersoU v. Stevens, i. 363, 472. Att.-Gen. V. Birmingham (Borough of), i. 315. 317. ii- 267, 298. V. Bradford Canal, i. 315. V. Cambridge Gas Co., i. 318. V. Chambers, i. 172, 410. V. Cleaver, i. 243, 315. V, Colney Hatch Asylum, i. SI*. V. Dakin, ii. 130. V. Doughty, 10. V. Ely, &c.. Rail. Co., ii. 299. V. Forbes, i. 318. V. Gee, i. 316. V. Hallett, i. 476. *. Hatton, ii. 653. V. Jones, i. 172, 410. V. Leeds (Corporation of), ii. 268. V. Lonsdale (Earl of), i. 412. V. Luton Local Board, ii. 267. V. Mathias, i. 157. V. Metrop. Board, &c., ii. 298. V. Mid. Kent. Rail. Co., ii. 300. V. Nichol, i. iig. V. Norwich (Mayor of), ii. 263. V. Rees, i. 414. V. Richmond, i. 315. V. Sheffield Gas. Co., i. 318. V. Southampton Corp., i. 318. V. Thames Cbnservators, ii. 686. V. United Kingdom Tel. Co., i. 121, 318, ii. 6gi. V. West Hartlepool Commis- sioners, ii. 300. of New South Wales v, Mac- pherson, ii. 104. Attwood V. Ernest, i. 691. Atwood V. Mbhge?; ii. 80. Aubrey v. Fisher, i. 343. Augustein v. Challis, ii. 162, 163, 608. Austin V. Dowling, ii. 571. V. Great Western Rail. Co., i, 576, ii. 528. V. Mills, ii. 594. Austria (Emperor of) v. Day, ii. 470. Avanzo v. Mudie, i. 69. Avery v. Cheslyn, i. 359. Avila V Avila, ii. 485. Ayles V. S. East. Rail. Co., i. 578. Ayling v. Whicher, ii. 533. Ayre v. Craven, ii. 342, 350, 366. Baboneau v. Farrell, ii. 379. Bach v. Meats, i. 802. Back V. Stacey, i. 221, 226. Backhouse v. Bonomi, i. loi, 119, 217. V. Harrison, i. 506. Bacon v. Bacon, ii. 494. V. Jones, ii. 687, 6go. v. Smith, i. 372, ii. 535. Baddeley v. t)enton, ii. 709. Badger v. Ford, i. 205. v. South York. Rail. Co., i. 417. Badkin v. Powell, i. 821. Bagge V. Mawby, i. 783, 807. Bagg's Case, ii. 734. Baglehole v. Walters, ii. 450. Bagnall v. London and N. W. Rail. Co., i. 145, ii. 240, 248, 282, 286, 643. Bagot V. Bagot, i. 343, 345. (Lord) v. Williams, ii. 594. Bagshaw v. Seymour. Bagueley v. Hawley, ii. 43b. Bahia and San Francisco Rail. Co., Se, ii. 624, 765. Bail V. Mellor, i. 805, 827. Bailey's Case, i. 200, ii. 219. Bailey, Ex pdrte, ii. 495, Soi. V. Appleyard, i. I92, V. Bidwell, i. 505, 506, 524. V. Birtles, ii. 559. V. Hobson, i. 351, 380. V. Merrell, i. 48. V. Stephens, i. 151, 163, 178, 439- V. Sweeting, i. 724. Baily v. Merrell, ii. 415. Bain v. Fothergill, i. 29. Baird v. Fortune, i. 207. V. Neilson, i. 88. 772 INDEX OF CASES. Baird v. Williamson, i. III. Balcer v. ii. 533. V. Brown, ii. 653. V. Lond. and S. W. Rail. Co., ii. 588. V. Mcrfue, ii. 350. V. Pierce, ii. 343. V. Wait, ii. 575. V. Webberly, i. 44. Balch V. Symes, i. 680. Baldwin v. Cole, i. 496, 499. V. Elphinston, ii. 367. Baldwyn v. Girries, ii. 653. BalLv. Ball, ii. 498. V. Herbert, i. 140. Ballard v. Dyson, i. 220. Ballinger v. Ferris, ii. 34. Balls V. Metrop. Board of Works, ii. 679. Banfielif v. Massey, ii. 523. Bamford v. Turnley, i. 240, 242. Bancroft v. Mitchell. Bank of Bengal v. Macleod, i. 524. V. Fagan, i. 524. Bank of Ireland v. Trustees of Evan's Charity, i. 41, 42. Bank of Hindustan, Re, i. 680, ii. 764. Bank of Upper Canada v. Bradshaw, i. 619 Bankar, v. Houghton, i. 317. V. Tennent, i. 224. Banks v. Allen, ii. 250. V. Bebbeck, ii. 275. Bannister v. Hyde, i. 859. Banque de Credit Commercial v. de Gas, ii. 706. Barber v. Lesiter, i. 58, ii. 64. V. Nottingham and Grantham Rail. Co., ii. 244, 284. V. RoUinson, ii. 45, 234. V. Walduck, i. 80. V. Whiteley, i. 126, 390. Barclay, Ex parte, i. 532. Barker v. Braham, ii. 41, 150. V. Richardson, i. 195. Barley v. Walford, ii. 403, 465. Barlow, In re, ii. 728, 737, 738. V. Rhodes, i. 207. Barnabas v. Traunter, ii. 353. Barnardiston v. Chapman, i. 507. Barnes v. Barnes, ii. 486, 493, 494. Barnes v. Holloway, ii. 378 V. Hunt, i. 433, 453. V. Marshall, ii. 705. V. Prudlin, ii. 369. V. Ward, i. 257, 282. Bamett v. Allen, i. 12, ii. 343, 381. V. Brandao, i. 679. V. Crystal Palace Co., i. 500. V. Guildford (Earl), i. 423, 449, 475- Barnewell v. Williams, i. 697. Barraclough v. Johnson, i. 322, 324. Barratt v. Collins, ii. 392, 363, 546. Barrett v. Long, ii. 367, 373. Harrington v. Turner, i. 481, 554, 559- Barrington's Case, i. 153. Barrow v. Arnaud, i. 702, 703. V. Bell, i. 542. Barry v, Arnaud, i. 30. V. Bebhington, ii. 617. V. Croskey, ii. 398, 405, 411, 437, 454- Bartholomew v. Stephens, ii. 611, 680. Bartlett v. Baker, i. 264, 628. V. Wells, ii. 442. Barton v. Bricknell, ii. 228. V. Brown, i. 553. V. Gainer, i. 698. V. Gill, ii. 145. Barton Hill Coal Co., v. Reid, i. 279, 604, 608. Bartram v. Payne, i. 539. Barwell v. Adkins, ii. 382. V. Winterstoke, i. 422. Barwick v. Eng. Joint St. Bank, ii. 438. Basebe v. Mathews, ii. 87. Basham v. Lumley, ii. 592. Basset v. Maynard, i. 152. Bassett, Ex parte, ii. 730. V. Mitchell, i. 453. Basten v. Carew, ii. 186, 207. Bastow & Co., Re, ii. 131. Batchelor v. Vyse, ii. 136. Bate V. Hill, ii. 523. Bateman, Re, ii. 695, 707. V. Bluck, i. 292, 325, 3t6i V. Farnswbrth, ii. 132. V. Hotchkin, i. 343, Baten's Case, i. 233. Bates V. Pilling, ii. 156, 555. V. Wingfield, ii. 136, INDEX OF CASES. 771 Bateson v. Green, i. 167. Bather v. Day, i. 760. Batson v. Donovan, i. 38, 719, ii. 449. Batten v. Butter, i. 611. Batterbury v. Vyse, ii. 456. Battishill v. Reed, i. 193, 196, 204, 212, 224, 314. Batty V. Hill, ii. 467. Bawden v. Bawden, ii. 487. Bax V. Jones, ii. 37. Baxendale, In re, i. 776. V. Gt. East. Rail. Co., i. 722, 728. V. Gt. West. Rail. Co., i. 712, 745, 776- V. Hart, i. 723. ; V. Lond. and S. W., i. 745, ii. 678. V. McMurray, i. 183. V. North Devon Rail. Co., i. 776. Baxter v. Taylor, i. 181, 427, 430. Bayley v. Wolverhampton Water Works Co., ii. 256, 294. Baylis v. Baylis, ii. 488. y. Lawrence, ii. 390, 39I. V. Le Gros, ii. 693. V. Usher, i. 806, 836. Bayliss v. Fisher, i. 559. Baynes v. Brewster, ii. 22, Bazeley v. Forder, ii. 501, Beachey v. Sides, ii. 33, 290. Beadel v. Perry, i. 227. Beadell v. East Co. Rail. Co., i. 776. Beal, Ex parte, i. 77. V. South Devon Rail. Co., i. 731. Bealey v. Shaw, i. 183, 248. Beard v. Hine, ii. 704. V. Knight, ii. 148. Beardmore v. Tredwell, i. 121, 242. Beasley v. Clarke, i. 443. Beatson v. Skene, ii. 357. Beaty v. Gibbons, i. 545. Beauchamp v. Croft, ii. 78, 335. V. (Ld.) V. Gt. West. Rail. Co., ii. 287. V. Powley, ii. 666. Beaufcrd (D. of) v. Bates, V. Crawshay, ii. 631. V. Mayor, &c., of Swansea, i. 409. Beauford (D. of) v. Patrick, i. 131. Beaulieu v. Finglam, i. 366. Beavan v. Beavan, ii. 488. V. Delahay, i. 782, 788. Beaver v. Mayor of Manchester, i. 437, ii. 296. Becher v. Gt. East Rail., ii. 528. Beck V. Denbigh, i. 803. v. Dyson, i. 312. V. Rebow, i. 359. Beckervaise v. Gt. West. Rail., i. 574. Beckett v. Mid. Rail. Co., ii. 277, 278, 284. Beckford v. Hood, i. 58, 67, 68, 71. v. Montague, ii. 162. Beckwith v. Corrall, i. 507. V. Philby, ii. 15, 18, 50. V. Shoredike, i. 392. Bedford v. Bagshaw, ii. 405, 411, 457. V. Hunt, i. 90. V. "McKowl, ii. 521. Bedingfield v. Onslow, i. 113, 427, 472. Beechey v. Sides, ii. 290. Beeston v. Weate, i. 182. Behn v. Kerable, ii. 398. Behrens V. Gt. North. Rail.Co., i. 723, 726. Belcher v. Bellamy, i. 532, 536. V. Capper, i. 537. Belfast and Ballymena Rail. Co. ▼. Keys, i. 741. Bell V. Byrne, ii. 378. V. Chaplain, i. 765. V. Mid. Rail. Co., i. 22, ii. 646. V. Oakley, ii. 223. V. Parke, ii. 327. V. Stone, ii. 309. V. Twentyman, i. 235, yoo V. Walker, ii. 688. V. Warden, i. 157, 454. V. Wilson, i. 141. Bellamy v. Burch, ii. 350. Bellew V. Langdon, i. 167, Bellingay v. Bellingay, ii. 5 10, Bellingham v. Clark, ii. 564. Benest v. Pipon, i. 174. Bendfield v. Solomons, ii. 543. Bengal, The, ii. 576. (Bank of ) v. Macleod, i. 524. V. Fagan, i. 534. Bennet's Case, ii. 135. Bennett v. AUcott, ii. 520. 774 INDEX OF CASES. Bennett v. Bayes, i. 790, ii. 555. V. Bennett, ii. 389. V. Deacon, ii. 327. V. Lond. and N'. W. Rail. Co., ii. 660. V. Man., Sheff., and Line. Rail. Co., i. 777- V. Mellor, i. 755. V. Reeve, i. 161. V. Robins, i. 788. V. Thompson, ii. 670. Bennison v. Cartwright, i. 191. Benson v. Chester, i. 164. V. Fredericit, ii. 647. V. Paul, ii. 759. Bent V. Bent, ii. 494, 510. Berkeley v. Earl of Penibrolce, ii. 634. Eermondsey Vestry v. Brown, i. 327, 328. V. Ramsey, i. 66. Bernstein v. Baxendale, i. 724, 721;. Berresford v. Geddes, ii. 629. Berridge v. Ward, i. 415. Berrie v. Howitt, i. 683. Berriman v. Peacock, i. 417. Berry v. Heard, i. 546. Berryman v. Wise, ii. 385. Bertlion v. Cartwriglit, ii. 511. Bertie v. Beaumont, i. 213, 399, 547. Berton v. Lawrence, ii. 157. Bessant v. Gt. West. Rail. Co., i. 269. Bessell v. Wilson, ii. 227. Bessey v. Wyndham, ii. 163. Best V. Drake, i. 476. V. Hayes, i. 693. Beta, Tiie, i. 596. ' Betts V. De Vitre, i. 48, ii. 685. V. Gallais, ii. 685. V. Neilson, i. 81, 86, 89. y. Thompson, i. 160, 229. V. Willmott, i. 88, ii. 688. Bevan v. Waters, i. 670. Bewick v. Whitfield, i. 344, 511. Bibbey v. Carter, i. 115, 217. Bickett V. Morris, i. 107, 412. Bickford v. Darcy, i. 613. V. Skewes, i. 85. Biddle v. Bond, i. 504, 6g6, 700. Biddulph V. St. George's Vestry, ii. 297. Biederman v. Stone, i. 29. Biggins V. Goode, i. 840. iL'egs V. Mitchell, i. 319. Biglin V. Wylie, i. 333. BignoU V. Buzzard, ii. 310. V. Clarke, i. 82b. Bignold V. Waterhouse, i. 770. Bilbao, The, ii. 576. Bilbee v. Lond. and Bright. Rail. Co., L 579- Billiter v. Young, i. 497. Bills V. Smith, i. 527. Binckes v. Pash, i. 202. Binks V. S. Yorkshire and River Dun Co., i. 253, 257, 275. Binhs V. Pigot, i. 762. Birch, In re, ii. 695. V. Wright, i. 474. Birchley's Case, ii. 350. Birch-Wolfe v. Birch, i. 379. Bird, Ex parte, ii. 723. V. Elwes, i. 288. V. Gt. Eastern Rail. Co., ii. 275. V. Gt. Northern Rail. Co., i. 579. V. Hollrook, i. 250. V. Jones, ii. 14. V. Peagrum, ii. 533. V. Randall, ii. 593. Bird V. Relph, ii. 560. Birket v. Whitehaven Junction RaiL Co., i. 271, 624, 767. V. Willan, i. 736. Birks V. Silverwood, ii. 575. Birley v. Salford, i. 421. Birminghan Canal Co. v. Lloyd, ii. 69I, Churchwardens v. Shaw, ii. 211, 228. Gas Co., Ex parte, i. 526. Birt v. Barlow, ii, 506. Bishop v. Bryant, i. 812, 829. V. Trustees of Bedford Charity, i. 247, 253, 257, 266, 301, 306, 310. Bissil V. Williamson, ii. 591- Black V. Baxendale, i. 735, 773. Blackbom v. Greaves, i. 826. Blackborue v. Blackbome, ii. 501. Blackburn, Ex parte, i. 528. (Mayor, &c., of) v. Parkinson, ii. 274. Blackett v. Bradley, i. 159. Blackham v. Pugh, ii. 328. Blackman v. Simmons, i. 285. Blackmore, Ex parte, ii. 728. INDEX OF CASES. m Blades v. Arundel, i. 15, ii. 13b. V. Higgs, i. 15, 456, 513, 545. ; V. Sturt, ii. 323, 334. grave v. Bristol Waterworks Co., ii. 248, 286, 584. Blake v. Barnard, ii. 3. V. Done, ii. 566, 629. V. Gt. Western Rail. Co., i. 738. V. tayton, ii. 511. V. Midland Rail Co., i. 638. V. Nicholson, i. 670, 677. V. Peters, i. 346. V. Thirst, i. 303, 628. Blakemore v. Br. and Ex. Rail. Co., i. 10, 27, 35, 652, ii. 451, 528. Blanchard v. Bridges, i. 149, 190. V. Hill, ii. 471. Blanchenay v. Burton, ii. 144. Bland v. Bland, ii. 479. V. Lipscombe, i. 157. Blank v. Newcomb, ii. 701. Blaymire v. Haley, ii. 515. Bleaden v. Hancock, i. 671. Elenfciron v. Gt. Central Gas Co., i. 370. Blewett V. Jenkins, i. 159. Btewitt V. Rill, i. 15, 48. V. Tregoning, i. 129, 157. Bliss V. Hall, i. 234, 243. Blisset's Case, ii, 445. Blofield V. Payne, i. 17, ii. 455. Blood V. Keller, i. 199. Bloodworth v. Gray, ii. 347. Bloxam v. Elsee, i. 80^ 87. V. Hubbard, i. 624. V. Metropolitan Rail. Co., ii. 687. V. Sanders, i. 519. Blundell v. Catterall, i. 169. Blunden v. Desert, i. 680. Blunt V. Beaumont, ii. 54. BIyth V. Birm. Water Co., i. 633. Blythe v. Topham, i. 257. Blything Union v. Warton, i. 288. B(jardman v. Boardraan, ii. 482, 502i V. Sill, i. 674. Bock V. Gorrissen, i. 676, 678. Bode (Baron de). In re, ii. 732. Bodley v. Reynolds, i. 565. Bogg V. Midland Rail. Co;, ii. 274, 276; V. Pearse, ii. 744. Boggett V. Frier, ii. 535, Bogue V. Houlston, i. 76. Bohn V. Bogue, i. 69. Bolch V. Smith, i. 278. BoUand, Ex parte, i. 528. Bolton (Ld.) v. Tomlin, i. 838. V. Lahc. and York. Rail., i. 669. Bond V. Downton, i. 233. Bonomi v. Backhouse, i. 16, 20, 93, lOt, n8, 217, ii. 58, 2^0, 599. Bonsey v. Wordsworth, ii. 570. Boorttian v. Brown, ii. 527. Boosey v. Davidson, ii. 609. V. Wood, ii. 590. Booth V. Clive, ii. 33, 35, 150. V. Taylor, ii. 693. Boreham v. Boreham, ii. 486. Borries v. Hutchinson, i. 775. Borrodaile v. Brunton, ii. 463. Borrows v. Ellison, i. 404. Bos v. Helsham, ii. 427. Boss V. Litton, i. 584. ' Bostock V. Bostock, ii. 482, 483. V. Floyer, ii. 43S. V. N. Staff. Rail. Co., ii. 299, 687. Boulding v. Tyler, ii. 668. Boulter v. Peplow, i. 838. Boulton's Case, i. 392. Boulton, Ex parte, i. 534. V. Bull, i. 81. v. Crowther, ii. 241, 252, 55a. V. Reynolds, i. 811. V. Watt, i. 84. Bourke v. Warren, ii. 378. Bourne v. Alcock, ii. 673. V. Fosbrooke, i. 557, 700. V. Gatliffe, i. 737. V. Liveipool (Mayor of), ii. <8l. Bovill V. Crate, ii. 690. V. Finch, i. 79. v. Goodier, ii. 688. V. Hitchcock, ii. 692. BowditcH V. Balchin, ii. 15. V. Wakefield Local Board, L 332- Bowen V. Evans, ii. 714. Bower v. Hill, i. 16, 210, 220, 223. BoweS V. Foster, i. 520, 558. Bowler v. Nicholson, i. 833. Bowles's Case, i. 372. •Bowman v. Taylor, i. 88. 7;6 INDEX OF CASES. Bowyer v. Cook, i. 396, ii. 673, Box V. Green, ii. 713. Boyce, In re, ii. 108. V. Bayliffe, ii. 637 V. Higgins, ii. 108, 154. Boyd V. Croydon Rail. Co., ii. 409. V. Shorrock, i. 363. Boydell v. M'Michael, i. 532. Boyfield v. Porter, ii. 274. Boyle V. Brandon, ii. 519. V. Tamlyn, i. 126, 187, 205, 222, 390- V. Wiseman, ii. 611. Boys V. Pink, i. 724. Boyson v. Coles, i. 522. Bracegirdle v. Peacock, ii. 605. V. Orford, ii. 637. Bracey v. Carter, i. 614. Eradbee v. Christ's Hospital, i. 267. Bradbury v. Grinsell, i. 195. Bradby v. Southampton Local Board, ii. 273. Bradley v. Arthur, ii. 552. V. Copley, i. 544, 556. V. Gill, i. 233, 249. V. Waterhouse, i. 38, 727, ii. 631. Bradshaw v. Eyre, i. 207. V. Vaughton, ii. 47. Bradworth v. Foshaw, ii. 630. Brady v. Todd, ii. 453. Braham v. Bustard, ii. 471. Braithwaite v. Cooksey, i. 787. V. Skinner, i. 65. Bramley v. Chesterton, i. 474, ii. 640. Bramwell v. Eglinton, i. 790. V. Halcomb, ii. 689. Brancker v. Molyneux, i. 555. Brand v. Hammersmith Rail. Co., ii. 278, 282, 285. Brandao v. Bamett, i. 679. Brandling v. Barrington, ii. 136. Brandon v. Brandon, i. 788, ii. 272. V. Scott, i. 68g, 692. Brandt v. Craddock, ii. 54. Branly v. S. Eastern Rail. Co., i. 746. Brass V. Maitland, i. 35, ii. 439. Brassington v. Llewellyn, i. 398, 405, Bray v. Mayne, i. 657. V. Tracy, i. 372. Brayne v. Cooper, ii. 343. Brazier v. The Polytechnic Institution, i. 306. Brecon (Mayor, &c., of) v. Edwards^ i. 25. Bree v. Holbech, ii. 428. . Breedon v. Capp, ii. 708. V. Gill, ii. 702. Breese v. Jerdein, ii. 37. Bremner, Ex parte, i. 680, ii. 480. ,v. Hull, ii. 564. Brent v. Hadden, ii. 597. Brest V. Lever, i. 450. Brewer v. Drew, i. 565, ii. 545. V. Sparrow, i. 59. Brewin v. Short, i. 526, 531. Brewster v. Sewell, ii. 610. Briddon v. Gt. Northern Rail Co., t 712. Bridge v. Grand Junction Rail, Co., i. 632. V. Wain, ii. 432. Bridges v. Blanchard, i. 147, 452. V. Hawkesworth, i. 512. V. North Lond. Rail., i. 578. Bridgett v. Coyney, ii. 183. Bridgewater's (Duke of) Trustees t Bootlecum-Linacre, i. 409. Bridgland v. Shapter, i. 25. Cridson v. Benecke, ii 690, Brierly v. Kendall, i. 563. Brig, Ex parte ii. 413, 718, 742. V. Evelyn, ii. 231. V. Mercht. Trad., &c., i. 669. V. Oliver, i. 36. V. Sowry, i. 782. Bright V. Walker, i. 179, 180. 1^ 442. Brind v. Dale, i. 668, 709. V. Hampshire, i. 521. Brine v. Bazalgette, ii. 333. V. Gt. West. Rail Co , i. 437, ii. 248, 296. Brink v. Winguard, ii. 456. Brinsmead v. Harrison, i. 544, ii. 593. 594, 597- Briscoe v. Drought, i. 105. Bristol and Exeter R. Co. v. Collins, L ■ 738. Bristowv. Eastman, ii. 558. British Columbia Sawmill Co. 7. Nettle* _ ship, i. 773, 774. INDEX OF CASES. 777 British Empire Shipping Co. v. Somes, i. 671. British Museum (Trustees of) v. Fin- nis, i. 324. Britten v. S^ Western Rail. Co., ii. 634, 654. Brittridge's Case, ii. 351. Broad v. Ham, ii. 6g, 93. Broadbent v. Imperial Gas Co., i. 120. 296, ii. 248, 282, 286. V, Ledward, i. 692. V. Hamshotham, i. 105. V. Wilks, i. 159. Broadwater v. Blot, i. 664. Broadwood v. Granara, i. 748, 762. Brock V. Copeland, i. 283. Brocklehurst v. Lawe, i. 800. Bromage v. Prosser, ii. 311. Bromley v. Holden, i. 802. V. Wallace, ii. 508. Brooke v. Montague, ii. 358. V. Rawle, ii. 361. Brooke v. Clark, ii. 634. V. Ewers, ii. 724. V. Pickwick, i. 718. Brooks V. Brooks, ii. 479. V. Titchborne, ii. 374. Brookman v. Wenham, ii. 713. Brooks v., Blanshard, ii. 378. V. Hodgkinson, ii. 144, 155. V. Warwick, ii. 6g. Broom v. Davis, i. 611. Broome v. Gosden, ii. 379. Broomhead, In re, i. 669. Brough V. Homfray, i. 605. Broughton's Case, ii. 634. Broughton v. Jackson, ii. 50. Brown's Case, i. 164. (Lady) Case, i. 208, Brown v. Accrington Cotton Co., i. 277. V. Allen, ii. 651. V. Annandale, i. 81, 88. V. Arundel, i. 796. V. Bateman, i. 515. V. Best,i. 105, 113. V. Brown, ii. 479, 482. V. Bussell, i. 247, 288. V. Chapman, ii. 45, 81, 234. V. Cocking, ii. 572, 573. V. Groome, ii. 334. V. Edgington, ii. 431. Brown v. Elkington, ii. 461. V. Gibbons, ii. 662, V. Giles, i. 392. V. Glenn, i. 791. V. Heathcote, i. 536. V. Holyhead Local Board, i. 60, ii. 216. V. Jarvis, ii. 112, 162. V. Lond. and N. W. Rail. Co., ii. 569- V. Mallett, i. 329, ii. 580. V. Met. Co., &c., i. 155, 801. V. NichoUs, i. 135. V. Notley, i. 447. V. Robins, i. loi. V. Russell, i. 247, 288. V. Shevill, i. 796. ' V. Smith, ii. 348. ' V. Wilkinson, i. 637. Brown v. Windsor, i. 185. V. Wootton, ii. 594. Browne v. Dawson, i. 394, ii. II. V. Redmond, ii. 682. Browning v. Newman, ii. 580. Brownlow v. Met. Board of Works, i. 303,11.241. Bruce v. Helliwell, i. 133. Brucker v. Fromont, i. 634. Brunswick (Duke of) v. Hanover (King of), i. 34. V. Plarmer, ii. 377. V. Slowman, ii. 167. Brunt V. Mid. Rail. Co., i. 720, 724. Brunton v. Hall, i. 220, 453. V. Hawkes, i. 89. Bryant v. Foot, i. 156. V. Warden, i. 547. Brydges v. Kilburn, i. 382. V. Stephens, i. 378. Brydon v. Stewart, i. 280. Bryson v. Wylie, i. 533. Bubb V. Yelverton, i. 346. Buccleuch (Duke of) v. Met. Board of Works, ii. 271, 278, 2S1. Buchanan v. Findlay, i. 673. v. Rucker, ii. 734. Buckby v. Coles, i. 470. Buckland v. Butterfield, i. 354, 355. v. Johnson, i. 544, ii. 594. V. Papillon, i. 524. 778 INDEX OF CASES. Buckle V. Bewes; ii. 167, 653. Buckley v. Gross, i. 512, ii. 15. V. Hann, ii, 706. V. Wood, ii. 321. Buckman v. Levi, i. 769. Buckmaster v. Buckmaster, ii. 484, Budenberg v. Roberts, ii. 676. Buggin V. Bennett, ii. 701, 715. Bullard v. Harrison, i. 440, 455, Buller, Ex parte, ii. 724. V. Michel, ii. 617. Bullock V. Bullock, ii. 491, Bunbury v. Matthews, ii. 160. Bunch V. Kennington, i. 818. Burbridge, Ex parte, i. 542. Burder v. Veley, ii. 697, 701, 703. Burges v. Lamb, i. 344, 346. Burgess v. Clements, i. 758, 760. V. Freelove, ii. 53. V. Gray, i. 214, 261. V. Great Western Rail, Co., i. 271. Burke v. Bryant, i. 548. Eurland v. Kingston-upon-HuU Local Board, ii. 744, 761. Burley v. Bethune, ii. 226, 234. Burling V. Harley, ii. 151, V. Read, i. 431. Burn V. Brown, i. 673. V. Morris, i. 505, 523. Bumard v. Haggis, ii. 557. Burnby v. BoUett, ii. 441. Burne v. Richardson, i. 475, 782. Burnes v. Pennell, ii. 454. Burnett v. Lynch, i. 29. Buron v. Denman, i. 53, ii. 45. Burridge v. Nicholetts, i. 432, 456. Burroughes v. Bayne, i. 496, Burrows v. March Gas Co., i. 37. Burry v. Perry, ii. 662, 663, Burton, In re, ii. 726, 741. Burton v. Hughes, i. 538, 546.- V. Legros, ii. 37, 147, 151. Bury V. Bedford, ii. 471. Bush V. Beavan, ii. 760, 761, 762, 763.. V. Green, ii. 45. V. Martin, ii. 256, 260, 744. V. Parker, ii. 48. V. Steinman, i. 260, 303. Bushel V. Miller, i. 491. Busst V. Gibbons, iL 66, 92, Buszard v. Capel, i. 791. Butcher v. Butcher, i. 449, ii. 11. V. Henderson, ii. 667. V. L. & S. W. Rail. Co., i. 737 741. Butler V. Basing, i. 770. V. Hunter, j. 626. V. Knight, i. 615. V. Woolcott, i. 743. Butt V. G. W. Rail. Co., i. 727. V. Imperial Gas Co., i. 10, ii. 299. Butterfield v. Forrester, i. 610. Butterworth v. Brownlow, i. 36, 717 718. Button V. Heyward, ii. 342, 343, 360. Buxton V. Baughan, i. 503, 675. V. N. E. Rail Co., i. 269, 738. Bwlch-y-plwm Mining Co. v. Baynes, ii 412. Byerley v. Prevost, i. 510. Byles, In re, ii. 272, 281. Byne v. Moore, ii. 94. Byrne v. Boadle, i. 254, 261, 267, 633. Bywater v. Richardson, ii, 460. Cachar Co., Re, ii. 413. Caddy v. Barlow, ii. 87, 91. Cahill V. L. & N. W. Rail. Co., i. 741. Cailiff V. Danvers, i. 603. Caillaud's Pat. Tan. Co. t. Caillaud, ii. 682. Cairns v. Robins, i. 662, 735. Calabar, The, i. 595. Calcraft v. Harborough (EarD, ii. 508. Calder and Hibble Nayig. Co. v. Pilling, , i. 60, 63, 65. Calder v. Halkett, ii. 102, 179. Caldwell, Ex parte, i. 534. jCaledouian Rail Co. v. Carmichael, ii. V. Sprot, i. 141, J 146. V. Ogilvy, ii. 241, 242, 278, 283. Calmady v. Rowe, i. 410. Calne's (Borough of) Case, ii. 740. Calvert v. Joliffe, ii. 166. .Calye's Case, i. 752. jCamac v. Warriner, ii. 430. : Cambrian Railways Co's. Scheme, il. 131. INDEX OF CASES. 779 Cameron v. Charing Cross Rail. Co., ii. 279. V. Wynch, i. 563. Campbell v. Allgood, i. 347. , V. Mayor, &c., of Liverpool, i. '407. V. Scott, i. 69, ii. 68g. V. Spottiswoode, ii. 339. Campion v. Benyon, i. 83. Canadian Prisoners' Case, ii. 220. Cane v. Chapman, i. 65, ii. 552. Canham v. Barry, ii. 400, 417, 428, 459. V. Fisk, i. 135, 148. V. Jones, i. 78. Cann v. Clipperton, ii. 34. Cannee v. Spanton, i. 509. Cannington v. Nuttall, i. 82. Canotv. Hughes, i. 501, 505. Canterbury (Lord) v. The Queen, i. 366. (Viscpunt) v.Att, Gen., i. 367. Capel V. Jones, ii. 380. V. Powell, ii. 556, 557. Capella, The, i. 598, 637. Card V. Card, ii. 582. V. Case, i. 44, 308. Cardigan (Earl of ) v. Armitage, i. 133, 152, 155- Cargill V. Cargill, ii. 477, 484, 487. Carington v. Wycombe, Rail Co., ii. 287, 299. Carlisle (Mayor of) v. Graham, i. 222, 411. Carlyon v. Lovering, i. 114, 183, 308. Carnarvon (Earl of) v. Villebois, ii. 612. Carne v. Brice, ii. 533. Cames v. Nisbitt, i. 379. Carpenter v. Collins, i. 401, V. Mason, ii. 202. V. Pearse, ii. 134. V, Smith, i. 89. V. ■\yall, ii. 523. Carpue v. L. and B, Rail. Co., i. 578, ii. 291. Carr v. Benson, i. 155, 156. . V. Foster, i. 192. V. Hood, ii. 338. V. Lambert, i. 161. V. R. Exchange Ass. Co,, ii, 582. Carrett v. Morley, ii. 234. Carrill v. Pack, \. 167. Carrington v. Roots, ii. 529. V. Taylor, i. 235. Camithers v. Payne, i. 20, 539, 540 Carslake v. Mapledoram, ii. 347. Carstairs v. Taylor, i. III. Carter v. Crick, ii. 434. v. James, ii. 594. V.Johnson, i. 556. Carter v. Jones, ii. 606. Cartier v. Carlisle, ii. 468. Cartledge v. Cartledge, ii. 494. ^ Cartwright v. Amatt, i. 87. V. Earner, i. 79. V. Wright, ii. 378. Gary V. Longman, i. 69, 73. Casanova v. The Queen, i. 549. Casburn v. Rei.i, ii. 88. Cashill V. Wright, i. 760. Cast Plate, Governor, &c., of, v. Mere- dith, ii. 252. Castellaiu v. Thompson, i. 675. Castle, Ex parte, i. 533. Castleman v. Hicks, i. S08. Castrique v. Behrens, ii. 61, 63. V. Imrie, ii. 592. Caswell V. Cook, i. 26. V. Worth, i. 605. Catchmade's Case, ii. 705. Catchpole v. Ambergate, &c.. Rail Co„ i. 28, ii. 551. Cater v. Chignell, ii. 153. Caterham Rail Co., Ri, i. 778. Catherwood v. Caslon, ii. 503. Cator V. Lewisham Board of Works, ii 267, 298. Catterall v. Kenyon, i. 550, ii. 556. Catteris v. Cowper, i. 447. Caudle v. Seymour, i. 185, 186. CaudweU V. Hanson, i. 291. Cave V. Coleman, ii. 418. Cave V. Mountain, i. 188. ii. 173, Cavey v. Lidbitter, i. 240, 243. Cawkwell V. Russell, i. 203, 238, 291. (^habot, In re, ii. 696. Chadwick v. Marsden, i. 133, 135. V. Trower, i. 267. Chalk V. Wyatt, i. 476. Chamberlain v. Goodwin, ii. 365. V. King, ii. 33, 34. V. West End, &c.. Rail Co., ii. 277, 278, 279. 78o INDEX OF CASES. Chamberkine v. Chester and Birk. Rail. Co., ii. 607. Chamberlayne v. Dummer, i. 346. Chambers v. Bemasconi, ii. 618. V. Caulfield, ii. 508. V. Robinson, ii. 91. Champernown v. Scott, i. 681. Champneys v. Arrowsmith, i. 407. Chandeler v. Doulton, i. 805, 841.- V. Thompson, i. igo. Chandelor v. Lopus, ii. 418. Chaney v. Payne, ii. 203. Channon v. Patch, i. 554. Chanter v. Hopkins, ii. 430. Chantler v. Lindsey, ii. 535. Chapman v. Allen, i. 673. V. Chapman, i. 615. V. Cripps, i, 323. V. Jones, i. 408. j V. Monm. Rail. Co., ii. 284. V. Pickersgill, i. 56. V. Rothwell, li. 581. V. Speller, i. 518, ii. 136, 429. V. Van Toll, i. 635. Chappell V. Davidson, ii. 584. Chappie V. Watt, ii. 682. Charles v. Charles, ii. 491. Charhvood v. Greig, i. 284. Chase v. Westmore, i. 670. Chasemore v. Richards, i. 93, 103, 109, no, 113. Chauntler v. Robinson, i. 266, 268, 305. Chauvin v. Alexandre, ii. 139. Cheasley v. Barnes, ii. 52. Cheese v. Scales, ii. 309. Cheesman v. Exall, i. 676, 690, 700, 769, 772. V. Hardham, i. 62. Cheetham v. Hampton, i. 214, 428. Chelsea Vestry v. King, i. 39. Cheltenham, &c.. Carriage and Wagon Co., Re, ii. 104. Cherry v. Colonial Bank of Australasia, ii. 437. Chester v. Holyhead Rail. Co., i. 272. Chetham v. Hoare, i, 404. V. Williamson, i. 154, 170. Chetwynd v. Chetwynd, ii. 492, 493. Cheveley v. Morris, ii. 657. Chew V. Holroyd, ii. 573, 706. Chichester v. Lethbridge, i. 298, 327. Child V. Affleck, ii. 323. V. Chamberlain, i. 813. V. Hudson's Bay Co., i. 64. V. Mann, ii. 134. Childers v. Wooler, ii. 403, 420, 426 457- Chilton V. Barrington, i. 688, 702. V. Lond. & Croy. Rail Co., i. 65, ii. 27. Chinn v. Morris, ii. 649. Chinnery v. Viall, i. 496, ii. 638. Chinnock v. Sainsbury, ii. 685. Chivers v. Savage, ii. 54, 705. ChoUet V. Hoffman, i. 88. Christie v. Cowell, ii. 346. V. Griggs, i. 584. V. Unwin, ii. 204. Christopherson v. Bare, ii. 4, 44. Church v. Barnet, ii. 580. V. Inclos. Comm., ii. 696. Churchill v. Siggers, ii. 65, 80, no. Churchvifard v. Coleman, ii. no, 725. V. Study, i. 513. Churton v. Frev^en, i. 408. Cibber v. Sloper, ii. 508. Clapham v. Shillito, ii. 419, 458. Clare v. Maynard, ii 639. Clark V. Armstrong, i. 2S5. V. Blything, i. 377, ii. 652. V. Calvert, ii. 545. V. Chamberlain, i. 502. v. Freeman, ii. 310. V. Gaskarth, i. 794. V. Newsam, ii. 57, 650, V. Nicholson, ii. 165. V. Webster, i. 286. V. Woods, ii. 223. Clark's Patent, i. 79. Clarke v. Clark, i. 227. V. Cogge, i. 138. V. Dixon, ii. 412. V. Earnshaw, i. 661, 663. V. Hutchins, i. 723. V. Leicester, &c.. Canal Co., ii. 755- V. Postan, ii. 76, go. V. Sarum (Bishop of), ii. 728, 739- V. Spence, i. 536. V. Tinker, i. 162. V. Watson, i. 618. INDEX OF CASES. 781 CUy V. Oxford, ii. 566. V. Roberts, ii. 310. V. Willan, i. 38. Clayards v. Dethick, i. 610 Clayton v. Corby, i. I2g, 170, 194, 438, 442, 445. V. Renton, ii. 575. Cleeve v. Mahany, i. 243, 315. Clegg V. Dearden, ii. 597. Cleland, Ex parte, i. 680. Clement v. Chivis, ii. 309. V. Milner, i. 8i6. Clements v. Flight, i. 699. V. Lambert, i. 205. V. Ohrly, ii. 99. Clerk V. Gilbert, i. 686. Cliff V. Mid. Rail., i. 580. Clifton V. Hooper, ii. 164. Climie v. Wood, i. 363. Clinton v. Clinton, ii. 485. Clossman v. White, i. 694, 699. Clothier v. Chapman, ii. 612. V. Webster, ii. 251, 274. Clough V. L. and N. W. Rail., i. 520. Clout V. Clout, ii. 494. Clowes V. Beck, ii. 691. V. Hughes, i. 781. Coats V. Chaplin, i. 764. V. Clarence Rail. Co., ii. 268, 297. Cobb V. Mid. Wales Rail. Co., ii. 679. Cobban v. Downe, i. 664. Cobbett V. Cliitton, ii. 500. V. Grey, ii. 3. V. Wheeler, ii, 659. Cock V. Gent, ii. 289. Cockayne v. Hodgkinson, ii. 330 Cockcroft V, Smith, ii. 9, 12, 34. Cocker v. Cowper, i. 130, 218. V. Cardwell, i. 288. V. Crompton, i. 429, 450. V. Musgrove, ii. 135. Cockle V. L. & S. E. Rail., i. 577. Cocks V. Chandler, ii. 470. Ccdrington v. Lloyd, ii. 156, 159. Coe V. Wise, ii. 256. Coffin V. Coffin, i. 381. Coggs V. Bernard, i. 642, 643, 656, 666, 693. 694, 713, ii. 527. ' Cohen, Ex parte, i. 527, 543. V. Huskisson, ii. 23. Cohen v. Morgan, ii. 75, 234. Colchester (Mayor of) v. Brooke, i. 41 263, 292, 410. Cole V. Forth, i. 340, 341. V. Foxman, i. 162. V. Goodwin, i. 719. V. Green, i. 17, 338. V. Maundy, i. 456, 480, 455. V. Turner, ii. 4. Colegrave v. Dios Santos, i. 499. Coleman v. Coleman, ii. 486. V. Foster, i. 155. , V. Riches, ii. 553. Colemere, Re, i. 527. CoUard v. Allison, i. 85. V. S. E. Rail. Co., ii. 636. Collen V. Wright, ii. 436, 437, 463, 464, 639, 640. CoUett V. Curling, i. 786. V. Foster, ii, 41, 155. V. Lond. and N. W. Rail. Co., i. 575, 766, ii. 528. Collins V. Bristol and Exeter Rail. Co., i. 738. V. Cave, i. 48, ii. 405. V. Evans, ii. 403, 420, 426. V. Forbes, i. 539. V. Maitin, i. 680. V. Renison, ii. 13. V. Ross, ii. 230. Collins Co. V. Brown, ii. 468. V. Reeves, ii. 471. Collis v. Selden, i. 28, 281, 306, 604. Colnaghi y. Ward, i. 76. Colwell V. Reeves, ii. 531. Colyer v. Speer, ii. 135. Compton V. Richards, i. 149. Concordia, The, and The Spring, i. 597 Connell v. Watson, ii. 681. Conradi v. Conradi, ii. 5 10. Constable v. Nicholson, i. 157. Conybeare v. Farries, ii. 676. Cook, Ex parte, ii. 724. V. Batchellor, ii. 363. V. Bath (Mayor of), i. 197, 200. V. Beal, ii. 12. V. Cox, ii. 365. V. Field, ii. 373, 386. V. Ipswich Local Board, i. 331. V. Leonard, ii. 33, 34. V. Palmer, ii. 118. 782 IND'E^ OF CASES. Cook V. Ward, ii. 307. Cooke V. Cooke, ii. 482. V. Forbes, i. 316. V. Hemming, i. 532. V. Hughes, ii. 3S1. Cooke V. Jackson, i. 430. V. Waring, i. 44. V. Wildes, ii. 323, 391. Coomber v. Howard, i. 7S6. Coombs V. Beaumont, i. 532, V. Coombs, ii. 480. V. Bristol and Exeter Rail. Co., i. 764- V. Noad, i. 697. Cooper V. Barber, i. 107. V. Bill, i. 669. V. Blandy, i. 837. V. Booth, ii. 77. V. Gordon, ii. 737. V. Harding, ii. 41. V. Hubbuck, i. 177, 190, 193, 227, 309, 316, 438. y. Lond. & S. W. Rail. Co., i. 777- V. Marshall, i. 166, 2go, 392. V. Shepherd, ii. 597. V. Slade, ii. 678. V. Stephenson, i. 616. V. Wandsworth. Board, &c., i. 437, ii- 190. 734- V. Willomat, i. 6go. . V. Woolley, i. 239. Copeland v. N. East. Rail. Co., ii. 760. V. Stephens, i. 525. Copley V. Burton, i. 747. Coppinger v. Gubbins, i. 378. Corbet's (Sir Miles) case, i. 162 Corbett v. Brown, ii. liS, 409, 455. V. Gen. St. Nav. Co., ii. 570. V. Ludh»m, ii. 695. Corby v. Hill, i. 212, 216, 254. Corner v. Champneys, i. 559. Cornfoot v. Fowke, ii. 452. Cornill v. Hudson, ii. 599. Cornish v. Hockin, V. Keene, i. 80, 88. V. Stubbs, i. 131. Comman v. E. C. Rail. Co., i. 271. Cornwall v. Metrop. Com. of Sewers, i. 258. V. Richardsod, ii. 94. Cornwell v. Sanders, ii. 193. Corrance v. Corrance, ii. 492. Corrigal v. Lond. and Bl. Rail. Co., ii 285. Cosens v. Bognor Rail. Co., ii. 300. Coshay v. Tute, i. 724. Cossey v. Lond. and Brighton Rail., ii 588. Costar V. Hetherington, ii. 47. Costard v. Wingfield, i. 163. Costello V. Coflett, ii. 681. Costworth V. Betisoii, i. 808. Cotchiug V. Bassett, i. 225, 316, ii. 691. Cotes V. Michill, ii. 143, 144, 159. Cotesworth v. Spokes, i. 815. ' Cotterell v. Griffiths, i. 201. V. Jones, ii. 79, 80. Cotterill v. Hobby, i. 214. V. Starkey, ii. 44. Cotton V. Browrie, ii. 87, V. Bull, i. 803. V. James, ii. 82. V. Wood, i. 36, 585. Counch V. Steel, i. 59, 67, 68. Coulson V. White, i. 476. Coulthart v. Coulthart, ii. 486. Coupland v. Hardingham, i. S57. Courtald v. Legh, i. 190. Cousens v. Hall, i. '220. Coutts V. Gorham, 1. 149. Coventry v. Gladstone, i. 522. V. Lond. Brighton, and S. C Rail. Co., ii. 287. Coward v. Baddeley, ii. 3, 8. V. Gregory, ii. 561. Cowell V. Amman Coll. Co. ii. 669, 671. V. Simpson, i. 674. Cowing V. Cowing, ii. 509. Cowlam V. Slack, i. 161. Cowles V. Potts, Cowley V. Mayor, &c., of Sunderland, i. 276, 605, 652, ii. 549. Cowling V. Higginson, 1. 220. Cowper (Earl) v. Baker, i. 378, 476. Cox V. Bent, i. 784. V. Burbidge, i. 43, 45; 388. V. Cox, ii. 689. V. Feeney, ii. 338. V. Glue, i. 100, 395, 445. V. Gt. East. Rail. Co., i. 708, 7»3. V Land and Water Journal, i. 71 INDEX OF ' CA SES. 783 Cox V. Lee, ii. 309, 380. V. Leech, i. 615. V. London (Mayor of), ii. 698, 707. T. Matthews, i. 149. V. Mitchell, ii. 591. V. Mousley, i. 393. V. Raid, ii. 33. Coxe V. Smith, i. jr. Coxen V. Gt. West. Rail. Co., i. 738. /:9«head V. Richards, ii. 327, 328, 383. Crabb v. Crabb, ii. 483. Cracknell v. Mayor of Thetford, i. 264, ii. 552. G^aft V. Boite, ii. 663. Crafter v. Metrop. Rail. Co., i. 271. Craig V. Hasell, ii. 82. Cramer v. Mott, i. 802, 803. Cranch v. White, i. 505. Cranden v Walden, ii. 251. Crane v. London Dock Co., i. 517. V. Price, i. 81, 85. Cranwell v. London (Mayor of), ii. 300. Craven, Ex parte, i. 528. V. Smith, ii. 668, 670. V. Stubbins, ii. 2ig. Crawford's Case, ii. 104. Crawford v. Middleton, ii. 344, 356. V. Satchwell, ii. 137. Crawshay v. Homfrey, i. 674. V. Thompson, ii. 439, 455, 462. Crease v. Barrett, ii. 615. Crepps V. Durden, ii. 186, 192, Creuze v. Hunter, ii. 497. Crewe v. Crewe, ii. 489. Cristie v. Cowell, ii. 346. Crocker v. Molyneux, i. 515. Croft V. Alison, i. 590, 634, 635. V. Day, ii. 469. V. Lond. and N. W. Rail. Co., ii. 282, 285. V. Stevens, Crofts V. Brown, ii. 342. V. Haldane, i. 222. V. Waterhouse, i. 573. Crompton v. Ibbotson,. i. 80. Cronshaw v. Chapman, ii. 151, 154, 426. Crook V. Dowling, ii. 88, Crosby v. Leng,;i. 55. V. Wadsworth, i. 446. Cross, Ex parte, ii. 220, Cross V. Andrews, i. 759. ■i. Androes, i. 748. V. Lewis, i. 175, 189. Crosse v. Gardner, ii. 429. Crossfield v. Such, i. 701, 703. Crossley v. Beverly, i. 83. V. Lightovvler, i. 108, 120, 149, 200, 204, 317, 412. Crouch V. Great Northern Rail. Co., i. 746. V. Great West. Rail. Co., i. 738. V. Lond. and N. W. Rail. Co., i. 707, 723. Crowder v. Long, ii. 117. V. Tinkler, i. 318. Crowley v. Page, ii. 659. Crozer v. Pilling, ii. S3. Crozierv. Cundey, ii. 224, 225. Crump V. Day, ii. 134. v. Lambert, i. 315. Cubitt V. Porter, i. 419, ii. 548. Cubley v. Cubley, ii. 493. Cudlipp V. Cudlipp, ii. 484. Cullen V.' Morris, i. 50, 51. V. Thomson, ii. 412. Culling V. Tuffnell, i. 361. Culwick V. Swindell, i. 363. Cumberland v. Copeland, i. 72. Cumpston v. Haigh, i. 671,697. Cunnington v. Cunnington, ii. 486, 488 Curlewis v. Broad, i. 28. V. Carter, ii. 693. V. Laurie, i. 436. V. Mornington, ii. 602. Curry v. Walter, ii. 335. Curtis, Re, ii. 498. V. Curtis, ii. 480. V. Drinkvirater, i. 630. V. Mills, i. 284. V. Piatt, ii. 692. V. Wheeler, i. 782. Cuthbertsons v. Parson, i. 626. Cutler V. Dixon, ii. 320. Czech V. Gen. St. Nav. Co., i. 36, 730. Da Costa v. The Russia Co., ii. 740. Daines v. Hartley, ii. 381. Daintry v. Brocklehurst, i. 397, 449. bale V. Birch, ii. 151. V. Hall, i. 715, 768. 784 INDEX OF CASES. Dale V. Wood, ii. 54. Dalton V. Mid. Co. Rail. Co., ii. 533. V. S. E. Rail. Co., i. 639. V. Wliitten, i. 792. Dalyell v. Tyrer, i. 45, 625. Damerell v. Protheroe, ii. 624. Danby v. Lamb, ii. 664, 667. Dand v. Kingscote, i. 137. Daniel v. Anderson, i. 136, 181, 207. V. Grade, i. 784. V. Metrop. Rail. Co., i. 579. V. North, i. 174, 223. V. Wilson, ii. 292. Daniels v. Fielding, ii. 84. V. Potter, i. 254, 259, ii. 620. Dann v. Spurrier, i. 225. Dansey v. Richardson, i. 661, 663, 763. Danvers v. Morgan, ii. 36. Darby v. Harris, i. 792. V. Ouseley, ii. 382, 606, 608. V. Waterlow, ii. 130. Darcy v. Allin, i. 79. D'Arcy (Lord) v. Askwith, i. 341. Dare v. Heathcote, i. 220. V. Hopkins, i. 509. V. Valley Rail. Co., Re, ii. 281. Darley v. The Queen, ii. 739. Darling v. Clue, i. 192. Daunt V. Crocker, i 408. Davenport v. Rylands, ii. 685, 688. Davey v. Chamberlain, i. 585. V. Mason, i. 724. V. Warne, ii. 295. Davidson v. TuUoch, ii. 551, 635. Davies v. England, i. 277. V. Jenkins, i. 12, ii. 20, 137. V. Lond. and Blackw. Rail., i. 267. V. McHenry, ii. 710. V. Mann, i. 41, 292. V. Marshall, i. 190, 224, 317, 452, ii. 603. V. Nicholas, i. 500. V. Price, ii. 578. V. Sear, i. 138. V. Solomon, ii. 352. V. Stacey, i. 832. V. Stear, i. 128. T. Stephens, i. 174, 219, 326, 453- T. Vernon, i. 500, ii. 555, Davies v.Williams,i. 289, 290.516,11. jaa Davis v. Bowsher, i. 679. V. Curling, ii. 291 293. V. Danks, i. 546. V. Gardiner, ii. 352. V. Gyde, i. 790. V. James, i. 765. V. Jones, i. 355. V. Living, i. 536. V. Lond. and N. W. Rail. Co., t 702. V. Nest, i. 696. V. Noake, ii. 75. V. North. West. Rail. Co., i. 772, ii. 636. V. Oswell, i. 565. V. Russell, ii. 16, l8, 50. v. Swansea (Mayor of), ii. 39I, v. Symonds, ii. 459. V. Thomas, ii. 681. Davidson v. Duncan, ii. 338. V. Gill, i. 414. V. Wilson, i. 394, 436. Daw V. Eley, ii. 104, 688. Dawes v. Hawkins, i. 323, 324, 327. V. Peck, i. 764. Dawkes v. Coveneigh, i. 55. Dawkins v. Paulet (Lord), ii. 52, 323. v. Rokeby (Lord), ii. 52, 78. Dawson V. Chamney, i. 759. v. Cropp, i. 783, 807, 826. V. Manch., &c.. Rail. Co., i. 578. V. Van Sandau, ii. V. Willoughby-with-Sloothby, i 331. V. Wood, ii. 128. Dawtry v, Huggins, i. 388, 389. Day V. Buller, ii. 350. V. Carr. ii. 133. V. Day, i. 490. V. King, ii, 205. Dayrell v. Hoare, i. 436. Dean v. Branthvraite, i. 589. v. Hogg, ii. 55. V. Peel, ii. 515. V. Taylor,, ii. 54. V. Clayton, i. 251. Deane v. Keate, i. 657. Dearden v. Townsend, i. 746. Death, Ex parte, ii. 697. v. Harrison, ii. 154. ) INDEX OF CASES. 78? De Beauvoir v. Owen, i. 831. De Crespigny v. Wellesley, ii. 306, 307. Deeble v. Lineham, i. 174, 180, Deere v. Guest, i. 477- Deering v. Moor, 1. 427. JJegg V. Midland Rail. Co., i. 608. De Gondotiin v. Lewis, ii. 649. De Haber v. Portugal (Queen of), ii. 6g8. Delacroix v. Thevenot, ii. 375. Delamere (Lord) v. The Queen, ii. 749. De la Rue v. Fortescue, ii. 694. Delegal v. Highley, ii. 88, 293. Delaney v. Metrop. Board of Works, ii. 286. Delfe V. Delamotte, i. 6q. Delisser v. Towne, ii. 77. Dempster v. Dempster, ii. 492. Dendy v. Simpson, i. 415. Dengate v. Gardiner, ii. 534. De NichoUs v. Saunders, i. 785, 789. Dennett v. Grover, i. 452. Dennis v. Pawling, ii. 649. Denston v. Asliton, ii. 682. Dent V. Auction Mart. Co., i. 120. V. Dent, ii. 510. V. Turpin, ii. 469. Denton v. Gt. North. Rail. Co., i. 710, ii. 434, 454. V. Macneil, ii. 412. V. Marshall, ii. 700, 707. Derby (Earl of) v. Bury Improvement Commissioners, i. 288. Derecourt v. Corbishley, ii. 22. Dering v. Dering, ii. 486. Derosne .v. Fairie, i. 83. De Rothschild v. R. M. St. P. Co., i. 663, 668. De Roufigny v. Peale, i. 614. Devaux v. Steinkeller, ii. 409, 455. Devonshire (Duke of) v. Elgin, i. 131, 224, ii. 691. Dewell V. Sanders, i. 392. Dews V. Riley, ii. III. Dexter v. Hayes, ii. 610. D'Eyncourt v. Gregory, i. 354. Dibble v. Bowater, i. 802. Dibdin v. Swan, ii. 338. Dickenson v. Watson, i. 6. Dickinson v. Coward, ii. 544. V. FoUett, ii. 461. II.— SO Dickinson v. North-East. Rail. Co., i, 621. Digby V. Thompson, ii. 307. Dignam v. Baily, ii. 680. Dimes V. Grand Jun. Can. Co., ii. loi, 214. V. Petley, i. 262, 292. Dimmock v. Hallett, ii. 427. V. North Staff. Rail. Co., ii. 250. Dimsdale v. Lond., Brighton, and S, Coast Rail. Co., ii. 669J 671. Dingle v. Hare, ii. 642. Dirks V. Richards, i. 509. Ditcham v. Bond, i. 451. Dixon V. Bell, i. 570, 630, ii. 529, 642. V. Enoch, ii. 377. v. Fawcus, i. 14, ii. 469. V. Holden, ii. 310. V. Smith, ii. 648. Dixon V. Stansfeld, i. 678. Dobell V. Stevens, ii. 428, 459. Dobree v. Napier, i. 54. Dobson V. Blackman, i. 426. V. Blackmore, i. 213. Dockwray v. Dickenson, i. 548, 563. Dod V. Monger, i. 803. Dodd V. Burchall, i. 135, 201. V. Holme, i. 267. V. Norris, ii. 521, 523. V. Robinson, ii. 351. Dods V. Evans, ii. 681. Dodwell V. Burford, ii. 8. Doe V. Arkwright, ii. 625. V. Beckett, i. 402. V. Benham, i. 402. V. Billett, i. 402. V. Bridges, i. 65. V. Challis, i. 475- V. Coombes, i. 405. V. Coulthred, ii. 625. V. Davidson, i. 132. V. Filliter, ii. 647, 679. V. Garth.-im, ii. 734. V. Gower, i. 402. v. Hampson, i. 415. V. Harlow, i. 475. V. Hinde, i. 402. V. Johnson, i. 397. V. Jones, ii. 737. V. Kemp, i. 416. 7^Z6 INDEX OF CASES. Doe V. Laming, i. 749. T. Leeds and Bradford Rail. Co., ii. 270. V. Massey, i. 406. V. McKaeg, V. Moore, i. 400. V. Morris, i. 837. .. Murless, ii. 158. V. Pearsey, i. 415. V. Penfold, i. 396. V. Phillips, i. 401. V. Pulman, ii. 625. V. Reed, i. 172. V. Rock, i. 401. V. Somerfon, ii. 611. V. Stacey, ii. 617, 625. V. Stanton, i. 299. V. Thorn, ii. 144. V. Trye, ii. 118. V. Turford, ii. 611. Y. Wood, i. 154, 170. Donald v. Suckling, i. 509, 658, 686. Donaldson v. Beckett, i. 68. V. Gillott, i. 41. Donford v. Ellys, i. 475. Doorman v. Jenkins, i. 643, 659, 666, 693. Dorchester (Mayor of) v. Ensor, i. 25. Dorrington v. Carter, i. 552. Doswell V. Impey, ii. 100, 105. Douglas V. Corbett, ii. 92. V. Yallop, ii. ill. Doulton V. Met. Board of Works, ii. 678. Doust V. .Slater, ii. 293. Dovaston v. Payne, i. 39I, Dover, Ex parte, i. 535. V. Mills, i. 662. V. Rawlings, i. 829. Dowding v. Gt. West. Rail. Co., ii. 715. Dowell V. Gen. Steam Nav. Co., i. 597. Dowglass V. Kendall, i. 152. Dowling V. Betjemann, i. 702, ii. 690. Down V. Hailing, i. 524. Downes v. Price, ii. 413. Downey's Case, ii. 221. Downing v. Butcher, ii. 94. V. Capel, ii. 35. Downshire (Marquis of) v. Lady Sandys, i. 347. Downton Overseeis, Ex paiie, ii. 727. Dowse, The, ii. «'7. Doyle T. Falconer. ". 104. Dracachi v. Anglo Egyptian Nav. Co., i 522. Drake v. Beckham, ii. 544. V, Sykes, ii. 117, r6o. Draper v. Fulkes, ii. 556. V. Sperring, i. 288. Dresser v. Bosanquet, i. 685. Drewell v. Towler, i. 125. Drummond v, Sant, i. 400, 401. Drury v. Molins, i. 378. Duberley v. Gunning, i!. 507, 654, 656, Dubois V. Keats, ii. 72, 74. Du Bost V. Beresford, ii. 650. Du Boulay v. Du Boulay, ii. 467, 471. Duckworth v. Johnson, i. 621, 634. Duddell V. Simpson, ii. 427. Dudden v. Guardians of Glutton Union, i. 105. Dudley v. Smith, i. 572. Dudley Can. Nav. Co. v. Grazebrook, i, 143. Dudley and West Bromw. Bank Co. v. Spittle, i. 55. Duff V. Budd, i. 736, 765. Dugdale v. Robertson, i. 101. Duignan, Ex parte, i. 526, 528, 529. Duke v. Barnett, ii. 428. Dumas, Ex parte, i. 540. Dumergue v Rumsey, i. 361. Dun. Nav. Co. v. North Mid, Rail. Co., ii. 300. Duncan v. Blundell, i. 612. V. Findlater, ii. 241, 253, 264, 762. V. Louch, i. 203, 220. v. Thwaites, Duncomb v. Reeve, i. 808. Dundalk Western Rail. Co. v. Tapster, i.65. Dundonald (Earl of) v. Masterman, k 613- Dunlop V. Lambert, i. 765. Dunn V. Large, i. 475. , Dunnicliff v. Mallett, i. 87. Dunraven (Lord) v. Llewellyn, ii. 612. Dunston v. Paterson, ii. 20, 137, 145 667. Duppa V. Mayo, i. 590. Durell V. Pritchard, i. 227, ii. 685, 693. INDEX OF CASES. 787 Durham and S'lnd. Rail. Co. v. Wawm, i. 380. Du Terraux v. Du Terraux, ii. 486. Button V. Powles, ii. 580. Duvergier v. Fellows, i. 87. Dwyer v. Collins, ii. 610. Dyce V. Hay, i. 128, 157. Dyer v. Hargrave, ii. 415. Dyer's Co. v. King, i. 202. Dyke v. Duke, ii. 114. Dynen v Leach, i. 279, 603. Dyson V. Collick, i. 447, 448. Dyster v. Battye, ii. 454. Eager v. Dyott, ii. 86, 89. Eager v. Grimwood, ii. 517, 519, 521. Eagle V. Charing Cross Rail. Co., ii. 778. Eagleton v. Gutteridge, i. 833. Eaile V. Holderness, i. 550. V. Picken, i." 838. Earle's Case, ii. 736. Easley v. Crockford, i. 506. East India Co. v. PuUen, i. 770. V. Vincent, i. 224, 382. East and West I. D. Co. v. Gattke, ii. 277. Eastern Co. Rail. Co. v. Broom, ii. 43, 549- V. Dorling, i. 138, 293. Easton v. London, i. 516. V. Richmond Highway Board, i. 329. Eastwood V. Bain, ii. 412, 459. Eaton V. Johns, ii. 309. V. Swansea Water Co., i. 106, 191. Eaves V. Dixon, ii. 460. Eccleston v. Clipsham, ii. 547. Eclipse, The, i. 598. Edelsten v. Edelsten, ii. 468, 470. Edge V. Parker, ii. 149. Edgeberry v. Stephens, i. 88. Edgell V. Francis, ii. 55. Edmonson v. Machell, ii. 518. V. Nuttall, i. 544, 559, 560, 564, 841, ii. 650. Sdsall V. Russell, ii. 343, 386. Edwards v. Bridges, ii. 128. V. Crock, ii. 509. Edwards v. Farebrother, ii. 129. V. Ferris, ii. 183. V. Gt. West. Rail. Co., ii. 295. V. Halinder, i. 265. V. Hodges, ii. 629. V. Hooper, i. 50S, 527. V. L. & N. W. Rwy., ii. 42- V. Martin, i. 534. V. Sherratt, i. 770. Eggington's Case, ii. 138, 220. Eggington v. Mayor of Lichfield, ii. 549- Egreraont (Lord) v. Pulman, i. 209, 235. Egyptian (The), i. 594. Eicholz V. Bannister, ii. 429. Ekins V. Tresham, ii. 415, 429. Eliot V. Allen, ii. 34, 651, 656. Elliot's Case, i. 321. Elliotson V. Feetham, i. 233, 243, 249. Elliott V. Bishop, i. 355, 360, 361. V. Nicklin, ii. 521. V. North-East. Rail. Co., i, 143. Ellis V. Abrahams, ii. 77. V. Bridgnorth (Mayor of), i. 26, 150, 169. v.'Cowne, ii. 617. V. Kelly, ii. 219. V. Lond. & S. W. Rail. Co., i. 274, 282. V. Sheffield Gas Co., i. 261, 303. V. Taylor, i. 8 ro. Ellison V. Isles, ii. 605. Ellwood V. Christy, i. 77. Elmhirst v. Spencer, i. 120.. Elmslie v. Boursier, i. 86. Elsam V. Faucett, ii. 509. Elsee V. Smith, ii. 74, 177. Elstob V. Wright, ii. 37, 43. Elston V. Rose, ii. 572^ 573. El well V. Crowther, i. 121. Elwes V. Maw, i. 351, 358, 361. Elworthy v. Sandford, i. 516, 549. Ely (Dean, &c., of) v. Warren, i. 16a. Emblem v. Myers, i. 636, 646. Embrey v. Owen, i. 16, 105, 107. Emerson v. Emerson, ii. 538. Emery, In re, ii. 572, 574. V. Barnett, ii. 104. Emmerton v. Matthews, ii. 441. Enderby, Ex parte, i. 533. 788 INDEX OF CASES. Energy, The, i 594. England v. Bourke, ii. 386 English V. Purser, ii. 53. Ennor v. Barwell, i. 105^ 121. Esdaile v. Oxenham, i. 681. Esk, The, i. 597, 598. Europ. & Austr. R. M. Co. v. R. M. Steam P. Co., i. 503, 769. Evans, Ex parte, ii. 702, 708. V. Botterill, ii. 189. V. Edmonds, ii. 407. V. Evans, ii. 480. V. Hallam, i. 530. V. Harlow, ii. 349. V. Harries, ii. 370, 648. V. Matthias, i. 837. V. Nichcl, i. 519. V. Rees, ii. 625, 662. V. Roberts, 446. * V. Walton, ii. 512, 514. V. Wright, i. 497, 800. Evelyn v. Raddish, i. 119, 372, 376. Everard v. Kendall, ii. 576. Everett v. Grapes, i. 61, 296. Eversfield v. Nevi'man, ii. 193, 573. Everton (Overseers of), Exparte, ii. 708. Every v. Smith, i. 395, 447. Ewart V. Cochrane, i. 135. v. Graham, i. 133. Ewbank V. Nutting, i. 550, 559. Excelsior (The), i. 598. Exeter Carriers' Case, i. 742. Exeter (Corporation of) v. Devon (Earl of), i. 264, 316. Exley V. Inglis, i. 526. Explorer, The, i. 596. Fabrigas v. Mostyn, ii. 633. Fairman v. Ives, ii. 322, 326. Faithful, Re, i. 681. Faldo V. Ridge, i. 434. Falke v. Fletcher, i. 485. Fallon, Ex parte, ii. 36. Fairbrother v. Ansley, ii. 651. Farina v. Silverlock, ii. 470. Farley v. Danks, ii. 81. Farmer v. Darling, ii. 66. V. Hunt, i. 480. V. Joseph, ii, 520. Famsworth v. Garrard, i. 612. Farnworth v. Packwood, i. 756- Farr v. Nevirman, ii. ii9. Farrant v. , i. 518. V. Barnes, i. 35, 570, 6C4, 64a 689, 718, ii. 398, 448, 451. v. Lovell, i. 380. V. Thompson, i.547, 555. Farrow v. Hague, ii. 703. Farshawv. DeWette, ii. 669. Farwell v. Boston, &c., Rail. Co., i. 38c Fauconberg v. Piers, i. 229. Fawcet v. Beavres, ii. 511. Fawcett v. Fearne, i. 526, 531. Fawcett v. York and N. Mid. Rail Co i. 274. Fay v. Prentice, i. 233. Feather v. The Queen, i. 79. Felkin v. Herbert (Lord), ii. 687. Fell V. Knight, i. 748. V. Whittaker, i. 827. Feltham v. England, i. 280. Fenham (The), i. 597. Fennv. Bittleston, i. 547. v. Dixe, ii. 369. v. Griffith, ii. 60S. v. Harrison, ii. 453. Fennerv. Duplock, i. 837. Fennings V. Grenfield (Lord), i. 508. Fentiman v. Smith, i. 130. Fentonv. Logan, i. 799. Fenwick v. Laycock, ii. 129, 133. Ferguson, Ex parte, i. 599. V, Carrington, i. 497. V. Kinnoul (Earl), i. 28, 30, 49, ii. 100. V. Wilson, ii.' 414, 685. Fernandez, Ex parte, ii. 105. Femie v. Young, ii. 688, 692. Femley v. Worthington, ii. 237. Ferrand v. Bradford (Corpor. of), ii. 269. Ferrers (Earl of) v. Staff. & Uttox.' Rwy., ii. 301- Fetter v. Beale, ii. 58, 595, 643. Fevershara v. Emerson, i. 432. Field V. Adames, i. 818. v. Brown, i. 344. V. Carnarvon & Llanberris Rail. Co., ii. 301. V. Mitchell, i. 805. Figlia Maggiore, The, i. 602. Filliter v. Phippard, i. 20, 367, 368, 374 Finch V. Blount, i. 559. INDEX OF CASES. ;89 Findon v. M'Laren, i. 798. Finlay v. Finlay, ii. 507. Finnerty v. Tipper, ii. 388, 389. Finucane v. Small, i. 662. Firth V. Purvis, i. 807. Fislier v. Algar, i. 805, 827. V. Bristow, ii. 87. V. Clement, ii. 384. V. Fisher, ii. 491. V. Magnay, ii. 137, 145. V. Prowse, i. 258. Fitch V. Rawlings, i. 125, 157. Fitzgerald v. Fitzgerald, ii. 484. V. Northcote, ii. 49. Fitzjohn v. Mackinder, i. 51, ii. 73, 74. Fleeming v. Orr, i. 285, 312. Fletcher v. Bowsher, ii. 450. ■I. Braddick, i. 599. V. Calthorp, ii. 202. V. Fletcher, ii. 2g, 485. V. Greenwell, ii. 291.. V. Rylands, i. lit, 267. Flewster v. Royle, ii. 40. Flight V. Leman, ii. 79. V. Thomas, i. 188, 191, 309. Flinn v. Perkins, ii. 567. Flower v. Adam, i. 39. V. Gardner, ii. 680 V. London, Brighton, & S. C. Rail. Co., ii. 299. Floyd V. Barker, ii. 78. Flyn V. Matthews, i. 536. Foiston V. Crachroode, i. 158. Foley V. Wilson, i. 344. Ford V. Leche, ii. n8. V. Tynte, i. 345. Forde v. Skinner, ii. 3, 8. Fordham v. Akers, i. 824. V. Brighton Rail. Co., i. 578. Foreman v. Canterbury (Mayor of), ii. 257- Fores V. Wilson, ii. 520. Forest Queen, The, ii. 576. Foreman v.' Dawes, i. 554, 630. Forsdyke v. Stone, ii. 387, 666. Forster v. Forster, ii. 508. Forsyth's Case, i. 82, 84. Forth V. Simpson, i. 673. Forward v. Pittard, i. 714. Foster V. Bates, ii. 543. V. Charles, ii. 408. Foster v. Cookson, ii. 135. V. Crabb, i. 688, 698. V. Denny, ii. 499. V. Dod, i. 288. V. Foster, ii. 697. V. Hilton, ii. 135, 166. V. Pointer, ii. 663, 672. V. Pritchard, ii. 134, 15,. V. Stewart, ii. 512. Fotherby v. Metrop. Rail. Co., ii. 280, 758, 759- Fouldes V. Willoughby, i. 496. Foulger v. Newcomb, ii. 348. V. Taylor, ii. 148. Fountain v. Boodle, ii. 332. Fowkes V. Joyce, i. 799. Fowler v. Down, i. 555. Fowles V, Great West. Rail. Co., i. 738. Fox, Ex parte, i. 87. V. Fisher, i. 542. V. Gaunt, ii. 20. Foxall V. Barnett, ii. 59, 95. Foxcraft v. Wood, i. 677. Foxliam Tithing Case, ii. 180. Foxley, Ex parte, i. 527. Foy V. London, Brighton, &c., Rail. Co., i. 577- France v. Gaudet, i. 565. Frances v. Ley, i. 16. Francis v. Cockrell, i. 584. V. Wyatt, i. 798. Frankland v. Cole, i. 614. Franklin v. Hosier, i. 670. V. Neate, i. 6go. V. S. E. Rail. Co., i. 638. Franks v. Franks, ii. 485. V. Weaver, ii. 468. Frankum v. Falmouth (Earl of), Eraser v. Berkeley, ii. 649. V. Swansea Navig. Co., i. 533 Fray v. Fray, ii. 307. V. Voules, i. 615. Frean v. Sargeant, ii. 663. Freedom, The, i. 602. Freeman v. Appleyard, i. 678. V. Arkell, ii. 90, 94. v. Birch, i. 691, 765. V. Cooke, ii. 621. V. Edwards, i. 800. V. Read, i. 330, ii. 578, 711. V. Rosher, i. 827. 790 INDEX OF CASES. Freeman tie v. Gt. North. Rail. Co., ii. 250. Freer v. Marshall, ii. 78. Freestone v. Caswell, i. 292. Fremantle v, Lond. & N. W. Rail. Co., i. 368, 369, 374. French v. Phillips, i. 806, 835. Freshney v. Carrick, i. 533. Frewen v. Hastings Local Board, ii. 712. V. Phillips, i. 1S9. Friswell v. King, i. 680. Frith V. Cartland, i. 544. V. Forbes, i. 683. Fryer v. Kinnersley, ii. 331. Fulber, Ex f arte, ii. no. Fuller V. Mackay, ii. 570. , V. Wilson, ii. 453. Furber, Ex parte, ii. 725. Furnis v. Leicester, ii. 429. V. Midland Rail. Co., ii. 288. Fursdon v. Clogg, i. 404. Futcher v. Hinder, ii. 140. Fynn, In re, ii. 495. Gabriel v. Dresser, ii. 584, 589. Gaby v. Wilts. Canal Co., ii. 290. Gage V. Collins, ii. 676. V." Smith, i. 344. Gahan v. Laffitte, ii. 100. Gale V. Dalrymple, ii. 48. Gallagher v. Humphrey, i. 254. V. Piper, i. 280. Galliard v. Laxton, ii. 15, 223. Galloway v. Bird, i. 822. V. Bleaden, i. 89. V. London (Corp. of), ii. 299. Gallwey v. Marshall, ii. 351, 367. Gambart v. Ball, i. 76. V. Sumner, i. 76. Gambrell v. Falmouth, ii. 680. Gandy v. Jubber, i. 214, 244, 301. Gann v. Whitstable Free Fishers, i. 410, 411. Gardiner v. Gray, ii. 452. V. Williamson, i. 783. Gardner V. Broadbent,-ii. 68. V. Blade, ii. 332. Gamett v. Backhouse, i. 294. V. Ferrand, ii. 99. V. Willan, i. 738. Garside v. Trent Navig. Co., i. 735. Garrard v. Guibelei, ii. 566, 629. V. Tuck, i. 401. Garret v. Taylor, i. 22. Garrett v. Messenger, i. 320. Garritt v. Sharp, i. 201. Garth v. Howard, ii. 620. Garton v. Bristol & Exeter Rail. Co., i, 712, 731, 745. V. Gt. West. Rail. Co., i. 776 ii. 291, 296, 677, 715. Gaskell v. Marshall, ii. 429. Gatehouse v. Gatehouse, ii. 483. Gateward's Case, i. 158. Gathercole v. Miall, ii. 340. Gaudret v. Egevton, i. 255. Gauntlett v. King, i. 827. Gaved v. Martyn, i. 182, 183, li)4. Gawler v. Chaplin, ii. 113. Gay V. Matthews, ii. 222, 226. Gayford v, Moiifatt, i. 138, 207 Gee V. Lane, and York. Rail. Co. i. 773, ii. 676. Gelley v. Clerk, i. 760. General Exchange Bank, Re, i. 679. V. Homer, i. 620. Gen. St. Navig. Co. v. Br. and Col. St. Navig. Co., i. 594, 597- V. Guillou, ii. 548. V. Hedley, i. 597. Genges v. Genges, i. 680. Gent V. Harrison, i. 345, 372. George v. Beaumont, i. 88. V. Chambers, ii. 226. George and Richard, The, i. 596, 602. George v. Skivington, i. 49, 612, ii. 452, Gerard v. Lewis, ii. 80. Gerhard v. Bates, i. I2, 49, ii. 410, 455. Gerrard v. Cooke, i. 140. Gibbins v. Phillips, ii. i5i. Gibbon v. Paynton, i. 38. Gibbons v. Alison, ii. 84. v. Pepper, i. 14, 571, 629, 632. Gibbs V. Cole, i. 83. V. Ralph, ii. 662. V. Trus. of Liv. Dock, i. 274, 275, 306, ii. 254, 255. Giblin v. McMuUen, i. 619, 659. Gibson v. Bray, i. 537. INDEX OF CASES. 791 Gibson v. Hammersmith Rail. Co., ii. 269, 300. V. Humphrey, i. 550. V. Ireson, i. 7g6. V. Preston (Mayor of), ii. 257. V. Smith, i. 378, ii. 687. V. Wells, i. 342. Gilbert v. Burtenshaw, ii. 387, 653. Gilbertson v. Richardson, ii. 635. Gilding v. Eyre, ii. 81. Giles V. Lend. & Chat. Rail. Co., ii. 26q. V. Spencer, i. 785, 790, 795. V. TaffVale Rail. Co., ii. 550. Gill V. Cubitt, i. 524. Gillard v. Brittain, ii. 650. Gillett V. Wilby, i. 86. Gillon V. Boddington, ii. 290, 536, 606. Gilman v. Elton, i. 796. Gilpin V. Cohen, ii. 139. V. Fowler, ii. 325, 353. Gimbert v. Coyney, ii. 224. Gimson v. Woodfall, i. 518. Gipps V. Gipps, ii. 489, 491. Girlington v. Pitfield, ii. 8g. Gisbourn v. Hurst, i. 795. Gittins V. Symes, ii. 694. Gladman v. Johnson, i. 312. Gladstone v. Padwick, ii. 129. Gladwell v. Steggall, i. 635, ii. 529, 532, Glaholm v. Barker, i. 595. Glasgow (City of) Union Rwy. v. Hunter, ii. 271, 278. Glasgow Nat. Ex. Co. v. Drew, ii. 454. Glasspoole v. Young, i. 562, ii. 128. Glave V. Harding, i. 135. Glennie v. Glennie, ii. 489. Glover v. Dixon, ii. 604. V. Lond. & N. W. Rail. Co., i. 504. V. Lond. & S. W. Rail. Co., ii. 57- V. North StaflF. Rail. Co., ii. 278, 285. Glyn V. Aberdare Rail. Co., ii. 280. Glynn v. Houston, ii. 53, 636. V. Thomas, i. 806, 810, 814, 820, 835. Goddard v. Harris, ii. 138. Goddart v. Haselfoot, ii. 349. Godefroy v. Dalton, i. 615. V. Jay, i. 614. Godfrey v. Furzo, i. 541. Godson V. Home, Godts V. Rose, i. 522. Godwin V. Francis, ii. 465. Goff V. Gt. North. Rail. Co., ii. 27 a8, 41, 43, 549, 553. Goggerley v. Cuthbert, i. 505. Gold V. Strode, Golden v. Manning, i. 736. Golding V. Stocking, i, 292. Goldsraid v. Tunbridge Wells Commrs., i- 314. 317- Goldstein v. Foss, ii. 391. Gompertz v. Kensit, ii. 507. Good V. Lond. Steam Shipowners' Asso- ciation, i. 6oi. Goodall V. Ensell, ii. 663. Goode V. Job, i. 403. Goodheim v. Goodheim, ii. 485. Goodman v. Boycott, i. 662, 691, 694,' 699, 701. V. Harvey, i. 506. Goodtitle v. Alker, i. 395. V. Tombs, i. 479. Goodwin v. Noble, ii. 561. Goodwyn v. Cheveley, 1. 387, 391, 817, 834- Gordon v. East India Co., i. 534. V. Harper, i. 546. v. Woodford, i. 345. Gore V. Grey, ii. 28. V. English Fishery Commissioners, i. 294. Gorton V. Falkner, i. 799. Goslin V. Corry, ii. 387, 643. Gossett V. Howard, ii. 201. Gott V. Gandy, i. 265. Gough V. Everard, i. 543. Gould V. Capper, ii. 701. Governor, &c., of Cast Plate v. Meredith, 739- Govett V. Radnidge, ii. 566. Gowens v. Moore, ii. 668. Grace v. Morgan, ii. 641, Graham v. Furber, i. 531. V. Graham, ii. 492. Grainger v. Hill, i. 497. ii- I4. 82, 84. Grand Junction Canal Co. v. Shugar, L no. Granger v. George, ii. 601. Grant v. Astle, ii. 634. 792 INDEX OF CASES. Grant v. Moser, ii. 22, 51. V. Norway, ii. 452. V. Vaughan, i. 506. Grantham v. Hawley, i. 154. Graves v. Ashford, i. 76. Graves' Case, i. 77. Gray v. Bond, i. 174. V. Carr, i^ 669. V. PuUen, i. 260, 302, 628. V. West, ii. 668. Grayburn v. Clarkson, ii. 561. Greasly v. Codling, i. 57. Greatrex v. Hayward, i. 185. Gt. North Co. v. Shepherd, i. 708, 741. Gt. Ship Co., Jie, ii. 631. Gt. West. Rl. Co. of Canada v. Braid, ii. 261. V. Favifcett, i. 272, 579. Great West. Rail. Co. v. Bennett, i. 142. V. Crouch, i. 742. V. Goodman, 1. 740. V. Redmayne i. 774- V. Rimell, i. 727, 774. •r. The Queen, ii. 722. V. Sutton, i. 746. Great Yarmouth (Mayor of) v Groom, i. 25- Greathead v. Morley, ii. 132. Green v. Bartram, ii. 51. V. Button, i. 18, 49, 51, ii. 406, 454. V. Dunn, i. 502. V. Elgie, ii. 156. V. Farmer, i. 677. V. Goddard, ii. 10. V. Greenback, ii. 557. V. Ingham, i. 534. V. Lon. Gen. Om. Co., i. 298, ii. 549- ». New River Co., i. 48. V. Pope, ii. 756. V. St. Cath. Dock Co., i. 803. Greene v. Jones, ii. 604. Greenhow v. Ilsley, i. 211. Greening v. Wilkinson, i. 561, Greenland v. Chaplin, i. 41, 43, 593, 598 Greenslade v. Darby, i. 407. V. Halliday, i. 292 Greenway v. Fisher, ii. 561. v. Hurd, ii. 32, 292. Greenwich Board of Works v. Maudsley, i- 325- Gregg v. Wells, i. 558. Gregory's Case, ii. 480. Gregory v. Brunswick (Duke of), ii. 62, V. Cotterell, ii. 115, 117, 167. V. Hill, ii. 12. V. Piper, i. 304, 428. V. West Mid. Rail. Co., i. 733. V. Williams, ii. 643. Gregson v. Theaker, ii. 507. Gresham v. Postan, ii. 415. Greville v. Chapman, ii. 310, 379. Griffin V. Coleman, ii. 6, 15, 17, 41, 149, 225. V. Dighton, i. 407. Griffith V. Matthews, i. 171. Griffiths V. Gidlow, i. 280, 604. V. ICynaston, ii. 680. V. Lewis, ii. 330, 348, 367, 392. V. Longdon & Ellersfield Drain- age Board, i. 97. V. Teetgen, ii. 515 Grill V. Gen. Iron Screw Collier Co., i. 36, 601. Grimbly v. Ackroyd, ii. 705. Grimstead v. Marlow, i. 158. Grimston v. Innkeeper, i. 761. Grindley v. Booth, ii. 694. Grinham v. Willey, ii. 40, 54. Grinnell v. Wells, i. 58, 515, ii. 519. Grocers' Co. v. Donne, ii. 248, 252. Groenvelt v. Burwell, ii. 106, 213. Grose v. West, i. 416. Grote V. Ches. & Holyh. Rail. Co i. 579, Grove v. Nevill, Groves v. Groves, i. 262, ii. 486. Grubb v. Burlington (Earl of), i. 351. Grymes v. Boweren, i. 355. Grymes v. Peacock, i. 205. Guest V. Poole & Bournemouth Rail. ii. 275. v. Warren, ii. 59, 595, 705. Guille v. Swan, i. 250. Guldfaxe, The, i. 596. Gulliver v. Cosens, i. 819, 825. INDEX OF CASES. 793 Gunmakers' Co. v. Fell, i. 65. Guntor v. Astor, ii. 524. Gurr V. Cuthbert, i. 510. Gustard's Case, ii. 765. Gutsole V. Mathers, ii. 360, 365, 454. Gwinnett v. Phillips, i. 835. Qwynn v. Poole, ii. 102. Haddrick v. Heslop, ii. 69, 87. Hadesden v. Gryssel, i. 167, 514. Hadley v. Baxendale, i. 773, ii. 463, 638. V. Taylor, i. 253, 282. Hague V. Dandeson, i. 669. Haigh V. Haigh, ii. 485. V. Jaggar, i. 381. V. Lond. & N. West. Rail. Co., i. 274,281. Hailes v. Marks, ii. 50 68. Haines v. East India Co., ii. 164, 621. V. Roberts, i. 141. V. Taylor, i. 315. V. Welsh, i. 785. Haire v. Wilson, ii. 308, 363, 390. Hakewill, In re, ii. 495. Hale V. Oldroyd, i. 204. Hall's Case, i. 317. Estate, J^e, ii. 506. Hall V. Ball, i. 516. V. Barrows, ii. 467, 471. V. Booth, ii. 18. V. Bristol (Mayor of), ii. 272. V. Fearnley, i. 44, 632. V. Harding, i. 210. V. Hollander, ii. 531, 532. V. Johnson, i. 607. V. Luiid, i, 135. V. Pickard, ;. 590. V. Smith, ii. 552. V. Swift, i. 104. V. Taylor, ii. 762. Halley, The, i. 597. Halliday, In re, ii. 500. V. Holgate, i. 509. Hallows V. Fernie, ii. 413. Hamar v. Alexander, ii. 40S. Hambleton v. Veere, ii. 634. Hambly v. Trott, ii. 558. Hamer v. Knowles, i. 100. Hamilton v. Bell, i. 536, 540. (Duke of) V. Graham, i. 393- Hamilton v. Vere, ii. ill, 657. Hammack v. White, i. 36, 571. Hammond v. Barclay, i. 678. Hamond v. Howell, ii. 98, 104. Hams, In re, i. 533. Hancke v. Hooper, i. 612. Plancock v. Caffyn, ii. 545. V. Peaty, ii. 487. V. Somes, ii. 47. V. Southall, i. 633. Hand, In re, ii. 732. Handcock v. Baker, i. 438. Handford v. Palmer, i. 657. Hando v. Lond., Chat., & Dover Rail Co., i. 608. Hankinson v. Bilby, ii. 360. Hanna (The), i. 594. Hannaford v. Hunn, ii. 52. Hannam v. Mockett, i. 19, 20, 392. Harbidge v. Warwick, i. 1S8, i8g. Harcourt v. Fox, ii. 171, 735. V. White, i. 382. V. Wyman, ii. 532. Hardcastle v. S. York, &c., Rail Co., i, 253,257, 283. Harding v. Carter, ii. 622. V. Greening, ii. 375. V. King, ii. 46. V. Metrop. Rail. Co., ii. 275. V. Pollock, ii. 735. Hardwick v. Moss, ii. 293. Hardy v. Ryle, ii. 229, 5ol. V. Veasey i. 6ig. V. Walker, ii. 698, 706. Hare v. Celey, ii. 546. V. Horton, i. 426. Hargrave v. Le Breton, ii. 361. Harland v. Mayor of Newcastle-on-Tyne ii. 667, 679. Harman v. Cornelius, i. 612. V. Delaney, ii. 310, 341. Harmer v. Bell, ii. 591. Harnett v. Maitland, i. 336, 343. Harold v. Smith, ii. 679. Harper v. Charlesworth, i. 326, 447. V. Godsell, i. 6gl. V. Luft'kin, ii. 517. V. Pole, ii. 575. Harries v. Thomas, ii. 662. Harrington (Earl) v. Ramsay, ii. 574, Harris v. Baker, ii. 552. 794 INDEX OF CASES. Harris v. Butler, ii. 515. V. Cockermouth Rail., i. 777. V Costar, i. 573, 631. V. Dignum, ii, 40, 53, 619. V. Ryding, i. 141. V, Shipway, i. 790. V. Thompson, ii. 333. Harrison, Ex parte, i. 534. V. Bainby, i. 789. V. Blackburn, i. 447. V. Bush, ii. 322, 334. V. Dixon, i. 553. V. Good, i. 250. V. Gt. North. Rail. Coi, i. 37, 95, 24S. V. Lond. Br., & S. C. Rail. Co., i. 731- V. Parker, i. 448. V. Pearce, ii. 387. V. Taylor, i. 75. V. Thornborough, ii. 342. V. Wright, ii. 578. Harrop v. Hirst, i. 107, 118. Harrow School v. Alderton, i. 376, 382. Hart's Case, ii. 765. Hart V. Aldridge, ii. 511. V. Baxendale, i. 769. V. Crowley, i. 632. V. Frame, i. 613. V. Frontino and Bolivia Gold Min- ing Co., ii. 624. V. Leach, i. 827. Hartley, In re, ii. 221. V. Halliwell, i. 312. V. Harriman, i 307. V. Hindmarsh, ii. 46 55. V. Moxham, i. 804. Hartnall v. Ryde Improv. Commrs., i. 216, 740. Hartop V. Hoare, i. 674. Hartz V. Schrader, i. 382. Harvey v. Brydges, i. 395. V. French, ii. 379. V. Mitchell, ii. 611. V. Pocock, i. 793, 841. Harwood v. Great North. Rail. Co., i. 89. Haseler v. Lemoyne, i. 827. Haselinton v. Gill, i. 541. Hassall v. Wright, i. 87, 88. Haswell v. Haswell, ii. 486. Hatch V. Hale, i. 811. V. Lewis, i. 636, ii. 669 Hatton V. Kean, i. 72. Haviland v. Haviland, ii. 483, 487. Hawkes v. Dunn, i. 501, 522. V. Smith, i. 716. Hawkins v. Carbines, i. 220. V. Harwood, i. 614. V. Plomer, ii. 140. Haworth v. Hardcastle, i. 90. Hawthorn v. Hammond, i. 748. Hay V. Weakley, ii. 82. Haycraft v. Creasy, ii. 407, 409, 422. Hayes v. S. W. Rail. Co., i. 738. Hayley v. Racket, ii. 146. Hayling v. Okey, i. 435. Haylock v. Sparke, ii. 173, 230, 231 ii. 236. Hayward, In re, ii. 201, 728. V. Met. Rail. Co., ii. 679. V. Seawood, i. 500. Hazeldine v. Grove, ii. 230, Head v. Briscoe, ii. 556. Headlam v. Hedley, i. 416. Healv. Heal, ii. 510. Heald v. Carey, i. 49S. Heapv. Barton, i. 362. Hearn v. Lond. and S. W. Rail. Co., L 726. Hearne v. Stowell, ii. 340, 391. Heath v. Bucknell, i. 190. v. Milward, i. 557. Heaton Steel and Iron Co., Re, ii, 765, Hebbert v. Thomas, i. 446. Hebblethwaite v. Hebblethwaite, ii. 502, Hedeu v. Atlantic Mail, &c., Co., ii. 666. Hedges v. Tagg, ii. 516, 520. Heeley v. Thames Valley Rail. Co., ii. 279. Heeman v. Evans, ii. 145. Hegan v. Johnson, i. 784. Hegingbotham v. East, and Cent, St. P. Co., i. 240, 321. Heilbut V. Nevill, i. 527. Heinrich v. Sutton, i. 582. Hellawell v. Eastwood, i. 792. Helliwill V. Hobson, ii. 579. Helsham v. Blackwood, ii. 386. Heming v. Power, ii. 343. Hemming v. Hale, ii. 635. Hemmings v. Gasson, ii. 366, 379, 382. INDEX OF CASES. 795 Hendeisonv Broomhead, ii. 320. V. Lacon, ii. 412. Y. Lond. and N. W. Rail., i. 725. V. Squire, i. 474, 725. Henicel v. Pape, i. 27. Henley v. Mayor of Lyme, &c., i. 30, 167. Henman v. Lester, ii. 609. Henning v. Burnett, i. 454. Hepburn v. Lordan, i. 318. Heriot v. Stuart, ii. 339. Heriot's Hospital Feoffees v. Ross, ii. 264. Herlakenden's Case, i. 342. Hermann v. Seneschall, ii. 33. Hemv. Nichols, ii. 453. Hernaman v. Bowker, i. 523. Heme v. Benbow, i. 342. Herr v. Union Bank, ii. 686. Herring v. Finch, i. 50. V. Metrop. Bd. of Works, ii. 252, 274. Harvey v. Smith, i. 226. Herz V. Union Bank, Heslop V. Baker, i. 553. V. Chapman, ii. 71. Hesse v. Stevenson, i. 87. Heughv. Lond. and N. W. Rail., i. 737, 742. Heurteloup's Case, i. 80. Hewison v. Guthrie, i. 674. Hewitt V. Cory, ii. 577. V. Isham, i. 432. V. Macquire, ii. 159. Hewlett V. Cruchley, ii. 73, 654. Hewlins v. Shippam, i. 130, 2l5, 2l8. Hewston v. Phillips, ii. 715. Hey V. Moorhouse, i. 450. Heydon and Smith's Case, i. 158. Heymann v. Eur. Central Rail. Co., ii. 412. Hey wood v. Collinge, ii. 82. V. Potter, i. 75. Hibbs V. Ross, i. 634. Hickinbotham v. Leech, ii. 373. Hide V. Thornborough, i. 185. Hider v. Dorrell, ii. 38. Higgins V. Brctherton, i. 744. V. Thomas, i. 552. Higgon V. Mortimer, i. 341, 551. Higgons V. Burton, i. 521. Higham v. Rabett, i. 441. Highmore v. Harrington Earl of), ii. 387. Hilbery v. Hatton, i. 499. Hill, In re, ii. 705. V. Balls, i. 125, 447. V. Goodchild, ii. 651. V. Gray, ii. 443. V. Lane, ii. 412. V. Reg., ii. 739. V. Sheriff of Middlesex, ii. 163, V. Thompson, i. 82, 85, 90. V. Tupper, i. iii, 151, 155. V. Warren, i. 610. Hills V. Evans, ii. 6.'?8. Hilton V. Earl Granville, i. 159. V. Woods, i. 471. Hilton (Overseers of) v. Bowes (Over- seers of), i. 151. Hinchliffe v. Kinnoul (Earl), i. 135. Hinde v. Sheppard, ii. 668, 670. Hindley v. Emery, i. 382. Hindustan (Bank of). Re, i. 680, ii. 765. Hinsley v. Wilkinson, i. 392. Hinton v. Dibbin, i. 725. v. Heather, ii. 6g. Hipkins v. Birm., &c.. Gas Co., i. 296. Hirst v. Halifax Local Board, i. 330. V. Molesbury, ii. 24. Hiscocks V. Jones, ii. 141. Hiscox V. Greenwood, i. 5 10, 675. Hitchings v. Thompson, i. 837. Hitchman v. Walton, i. 361. Hoare v. Dickinson, i. 235, 305. V. Silverlock, ii. 309, 335, 370, 380. Hobson V. Thelluson, ii. 131, 165. V. Todd, i. 211. Hoddesdon v. Gresil, i. 167. Hodges V. Paterson, ii. 157. V. Windham, ii. 508. Hodgkinson v. Enner, i. 235, 248, 305. v. Fernie, i. 53, 600. Hodgman v. West Midi. Rail. Co., L 254, 728. Hodgson V. Duce, i. 476. V. Fullarton, i. 663. V. Gascoigne, ii. 135. V. Scarlett, ii. 358, 359. V. Sidney, ii. 544 545. V. Towning, ii. 125. 796 INDEX OF CASES. HodsoU V. Stallebrass.ii. 531, 643. Hodson V. Walker, ii. 574. Hoe's Case, ii. 144. Hoey V. Felton, i. 13. Hoffman v. Postill, ii. 688. Hogarth v. Jackson, i. 514. Hogg V. Ward, ii. 16. Holborow V. Jones, ii. 668. Holcome v. Rawlins, i. 449. Holden v. Holden, ii. 480. V. Liv. Gas Co., i. 308, 370. V. Weeks, i. 349, 380. Holden's Case, ii. 765. Holder v. Coates, i. 418. V. Soulby, i. 763. Holderness v. Collinson, i. 677. V. Rankin, i. 536. Holdringshaw v. Rag, i. 441. Hole V. Barlow, i. 240, 244. V. Sittingbourne, &c.. Rail. Co., i. 260, 266, 303. V. Thomas, i. 380. Holford V. George, i. 294. "V. Hankinson, i. 216, 438. Holland's Case, ii. 171. Holland (Lady) v. Kensington Vestry, i. 332- Holliday v. Camsell, i. 507. HoUier v. Laurie, ii. 133, 153. HoUis V. Claridge, i. 681. V. Goldfinch, i. 4x7. V. Marshall, ii. 154. V. Smith, ii. 537, HoUister v. Nowlen, i. 719. HoUoway v. Abel, ii. 519. V. HoUoway, ii. 468. V. Turner, ii. 641. Holmes v. Bellingham, i. 415. V. Clarke, i. 279, 605. V. Goring, i. 203. V. Hodgson, i. 551. V. Lond. & N. W. Rail. Co., i. 86. V. North-East Rail., i. 271, 281. V. Onion, i. 625. V. Pemberton, ii. 682. V. Simmons, ii. 505. V. Sixsmith, ii. 459. V. Sparkes, ii. 157. V. Wilson, i. 396, 449, ii. 596. Hol»ie's Case, i. 321. Holroyd v. Breare, ii. 105. V. Marshall, i. 153. Holt V. Daw, i. 440. V. Frost, ii. 134. V. Rochdale, Corporation of, ii. 264, 297. Holyday v. Morgan, ii. 415, 460, 461. Homan, Ex parte, i. 535. Home V. Camden, ii. 701. V. Grimble, ii. 34. Homer v. Taunton, ii. 379. Honess v. Stubbs, ii. 584. Hood V. N. E. Rail., ii. 298. Hoole V. Gt. West Rail. Co., ii. 687. Hooman, Ex parte, i. 543. Hooper, In re, ii. 705. V. Bristol Port Rail. Co. , ii. 277, 284. V. Hooper, ii. 485. V. Lane, ii. 125, 126, 129, 140, 143. Hopcroft V. Keys, i. 781. Hope V. Hope, ii. 479, 499- Hopgood V. Parkin, i. 616. Hopkins, Ex parte, ii. 214. V. Crowe, ii. 32, 34, 40. V. Hitchcock, ii. 468. V. Tanqueray, ii. 418. Hopkinson v. Burghley (Lord), ii. 689. Hopper, In re, ii. 99, loi, 704, 705. V. Reeve, i. 4. Hopwood V. Schofleld, i. 213, 224. V. Thorn, ii. 329, 343, 352. Horn V. Baker, i 532, 538. V. Swinford, ii. 25. V. Thornborough, ii. 33. Hornblower v. Boulton, i. 82. V. Proud, i. 532. Homcastle v. Farran, i. 674. Home V. Home, ii. 485 492. V. Widlake, i. 454. Homidge v. Cooper, i. 523. Hornsby V. Miller, i. 530. Horrocks v. Metrop. Rail. Co., ii. 280, Horsefall v. Davy, i. 364, 421, 802. V. Mather, i. 364. Horsfall v. Holland, i. 421. V. Thomas, i. 49. Horsford v. Webster, i. 790, 795. Horwood V. Smith, i. 518. Hosking v. Phillips, i. 317,426, 473. Hoskins v. Knight, ii. 162. INDEX OF CASES. 797 Hoskins v. Robins, i. 165, 817. Hossack V. Gray, i. 594. Hotten V. Arthur, i. 69. Houghton V. Butler, i. 495. V. Matthews, i. 678. Houghton's Patent, i. 79. Houlden v. Smith, ii. 103. Hounsell v. Smyth, i. 253. Housin V. Barrow, ii. 115. How V. Hall, ii. 611. Howard v. Crowther, ii. 544 V. Jemmett, i. 542. V. Lovegrove, ii. 641. V. Newton, ii. 563. V. Shepherd, i. 27. V. Sheward, ii. 453. V. Smith, i. 838. Howarth v. Brown, ii. 660. V. Tollemaclie, i. 553. Howden v. Standish, ii. 114, 158. Howe V. Hunt, ii. 685. V. Scarrot, i. 781. Howell V. Jackson, i. 748, ii. 10, 23. V. Rodliard, ii. 659. V. Young, ii. 290, 602. Howes V. Ball, i. 800. V. Barber, ii. 679. Hewlett V. Haswell, ii. 557. V. Tarte, ii. 592, 594. Hovvton V. Frearson, i. 13S, 44P. Hoye V. Bush, ii. 224. Htibbard v. Bagshaw, i. 532. V. Lees, ii. 506. Huckle V. Money, ii. 55, 633, 634, 644. Huddart v. Grimshaw, i. 81. V. Rigby, ii. 604. Hudson V. Baxendale, i. 742. V. Granger, i. 678. V. McRae, i. 16S, 193. V. Roberts, i. 285. Hudston V. Midi. Rail., i. 708. Huffer V. Allen, ii. 8i. Hughes V. Buckland, ii. 33, 290, 293. V. Grasme, ii. 463, 639. V. Hughes, ii. 486. V. Quentin, i. 634. Hull V. Pickersgill, ii. 553. Humberstone v. Dubois, i. 831. Hume V. Oldacre. i. 473, ii. 57, 650. V. Pocock, ii. 428. Humfrey v. Gery, i. 797. Humfrey v. Lend, and N. W. Rail. Co., i- 439- Humfreys v. Mears, ii. 253. Humphrey v. Mitchell, ii. 138. Humphries v. Brogden, i. 97, 100, 146, 185. Hunt V. Coison, i. 399. V. Dowman, ii. 364, 378. V. Harris, i. 420. V. Hooper, ii. 115. V. Maniere, i. 504, ii. 469. V. North Staff., &c.. Rail. Co., ii. 571, 704- V. Peake, i. gS, loi, 121, 185. Hunter v. Caldwell, i. 616, 633. V. French, ii. 91. V. Westbrook, i. 546. Huntley v. Herring, ii. 369. V. Russell, i. 348. V. Simson, ii. 70, 76. Hurst V. Gt. West. Rail. Co., i. 710. Hussey v. Christie, i. 683. Hutchins V. Scott, i. 834. Hutchinson v. Copestake, i. 201 V. Guion, ii. 448. ' V. Lowndes, ii. 184. V. Morley, ii. 459. V. York, Newc, &c., Rail, Co., i. 585, 592, 607. Hutchison v. Birch, ii. 124. Hutton V. Cruttwell, i. 528. Huxley V. Berg, ii. 637. Huzzey v. Field, i. 46. Hyams v. Webster, i. 264, 628. Hyde V. Graham, i. 129, 451, ii. 603. V. Hyde, ii. 485. V.Trent. Nav. Co., i. 714, 735,767. Ibbett V. De La Salle, i. 815. Ibbotson V. Peat, i. 21, 235. He's Case, ii. 740. Illidge V. Goodwin, i. 14, 629. Ilott V. Wilkes, i. 251. Imperial Gas Co. v. Broadbent, J. 315. Imray v. Magnay, ii. Il5. Inchbald v. Harrington, i. 315. V. Robinson, i. 315. Incledon v. Berry, ii. 89. Indermaur v. Dames, i. 253, 255, 281. Industrie (The), i. 398. Ingate v. Christie, i. 709. 798 INDEX OF CASES. Ingle V. Bell, ii. 23. Tnglis V. Spence, ii. 544. Ingram v. Lawson, ii. 309, 643. Ings V. Lond. and S. \V. Rail. Co., ii. 667. Inman v. Reck, i. 598. Insole, Re, ii. 484. lona. The, i. 595. Ipswich (Tailors of), i. 60. Ireland (Bank of) v. Trustees of Evan's Charities, i. 41, 43. Ireland v. Johnson, i. 835. V. Livingston, ii. 437. Ireson v. Pearman, i. 615, 616. Irons V. Smallpiece, i. 515. Irving V. Wilson, ii. 223, 292. Irwin V. Brandwood, ii. 350. 1. Dearman, ii. 518, 520, 521. V. Grey, i. 30. Isaac V. Belcher, i. 553. V. Wyld, ii! 705. Isack V. Clarke, i. 481. Isle of Wight Ferry Co. v. Ryde Com., &c., ii. 661. Israel v. Clark, i. 584. Iveson V. Moore, i. 298. \\ imey v. Stocker, i. 166, 184, 205. Jacklin v, Fytche, ii. 232. Jackson v. Beaumont, ii. 69B, 701, 702, 707, 713, 714. v. Calesworth, ii. 658, V. Cator, i. 224, 382. V. Courtenay, ii. 9. V. Cummins, i. 673. V. Everett, ii. 676. V. Pesked, i. 112, 430. V. Smithson, i. 2S4. v. ToUett, i. 592. 1. Turquand, i. 620. Jacobs V. Humohrey, ii. 136, 162. v. Latour, i. 670, 686. V. Seivard, i. 351, 508, ii. 520, 631. Jacobsohn v. Blake, ii. 270. Jacombv. Dodgson, ii. 229. V. Knighi, i. 149. James (The), i. 597. James v. Biddington,, ii. 509. V. Boston, ii. 325 329. V. Brook, ii. 366. James v. Campbell, ii. 3, 56. V. Gt. Western Rail. Co., i. 582. V. Hayward, i. 221, 259, 293, 327. V. James, ii. 470. V. Lond. and S. W. Rail., ii. 695. V. Phelps, ii. 92. V. Plant, i. 207. V. Rutlech, ii. 347. V. Swift, ii. 37. Janson v. Brown, i. 48, 559. V. Stuart, ii. 305, 373. Jardine v. Smith, ii. 725. Jarmain v. Hooper, ii. 128, 155, 164. Jarman v. WooUoton, i. 541. Jarrett v. Kennedy, ii. 407. Jarrold v. Houlston, i. 6g. Jarvis v. Dean, i. 255, 257, 310, 325. Jaxon V. Tanner, ii. 634. Jayne v. Price, i. 396. Jeans v. Wheedon, ii. 90. Jeff Davis (The), i. 680, 683. Jefferson v. Durham (Bishop of), i. 371. v. Jefferson, i. 427. Jefferys v. Boosey, i. 68. Jeffreys v. Jeffreys, ii. 488. Jeffries v. Gt. West. Rail. Co., i. 557. v. Williams, i. 115, 217. Jeffrye's Case, ii. 702. Jegon V. Vivian, i. 471. Jenings v. Florence, ii. 80. Jenkins v. Betham, i. 618. v. Gething, i. -355. V. Hutchinson, ii. 407, 436. V. Turner, i. 44, 284, 307. Jenner v. A'Beckett, ii. 310. V. Clegg, i. 782. Jennings v. Gt. North. Rail. Co., i. 746. V. Rundall, ii. 557. Jessel V. Chaplin, Jesser v. Gifford, i. 112, 124, 213. Jessop's Case, i. 83. Jessop V. Crawley, ii. 53. Joe! V. Morison, John V. Bacon, i. 281, 739. Johns V. Jenkins, i. 801. Johnson v. Emerson, ii. 82. V. Faulkner, i. 801. V. Hill, i. 762. V. Hudson, ii. 378. V. Johnson, ii. 428, 49; V. Leigh, ii. 119. INDEX OF CASES. r99 Tolinson v. Lord, ii. 2g6. V. Midland Rail. Co., i. 707. V. Ossenton, i. 510. V. Pye, ii. 442, 587. V. Renton, i. 4:2, ii. 766. V. Royal Mail. S. P. Co., . 500, 510. V. Stear, i. 496, 563, 681, ii. 638. V. Upham, i. 810. V. Windle, i. 523 Johnston v. Renton, Johnstone v. Sutton, i. 52, 58, ii. 78, Q2. Jolly V. Arbuthnot, i. 781. V.Wimbledon, &c.. Rail. Co., li. 277. Jombart v. WooUett, i. 539. Jones V. Bewicke, ii. 386. V. Bird, i. 267, ii. 37, 232, 251. Y. Bowden, ii. 442. V. Boyce, i. 636. V. Bright, ii. 415, 430. V. Brown, i. 508, ii. 520. V. Carmarthen (Mayor of), i. 91. V. Carter, V. Chapman, i. 431, 450, V. Davies, i. 552. V. Dowle, i. 694, 700. V. East. Co. Rail. Co., i. 777. V. Festiniog Rail. Co., i. 369. V. Gooday, i. 471, ii. 296. V. Harber, i. 52b, 527, 528. V, Hart, i. 549. V. Howell, ii. 33. V. Johnson, ii. 226. V. Jones, i. 289, 290, 394, ii. 480, 706. V. Lewis, ii. 642. V. Mackie, ii. 664. V. Morris, i. 832. *. NichoUs, ii. 37. V. Owen, ii. 186, 700. V. Pearce, i. 79. V. Pearle, i. 686, 762. V. Perry, i. 286, 686. V. Pope, ii. 156, 159. V. Powell, i. 234, 240. V. Price, i. 438, 440. V. Pritchard, ii. 363. V. Sawkins, i, 815, ii. 589. V. Smith, ii. 546. T. Sparrow, ii. 665. Jones V. Stevens, ii. 389. V. Tapling, i. 190, 201, 247, V. Tarleton, ii. 6ii. V. Thurloe, i. 763. V. Tyler, i. 758, 768. V. Vaughan, ii. 223. V. Williams, i. 289, ii. 144, Ijq 667. V. Wood, ii. 161. Jordan v. Moore, i. 8g. Jordin v. Crump, i. 251. Jory V. Orchard, ii. 237. Joseph V. Henry, ii. 698. Joule V. Jackson, 796, 798. V. Taylor, ii. 290. Joyce V. Foukes. i. 795. Jubb V. Hull Dock Co., ii. 271, 279, Judge V. Cox, i. 312. Judson V. Etheridge, i. 673. Jupe V. Pratt, i. 84, 84 Justice V. Gosling, ii. 25. Kavanagh v. Gudge, i. 432, 45 1. Kay V. Grover, ii. 224. V. Marshall, i. Sg. V. Wheeler, i. 662. Keane, /^e, i. 683. Kearney v. Lend. & Brighton Rail. 36. 633- Kearns v. Cordwainers' Co., i. 264. Keats V. Keats, ii. 490. Keble v. Hickeringill, i. 20, 23, 235. Keech v. Keech, ii. 484. Keen v. Priest, i. 793, 841. Keene v. Dilk, i. 565. Keihley v. Bell, ii. 52, 82, 320. Keightley v. Birch, ii. 163. Kelcey v. Stubbles, ii. 671. Kelk V. Pearson, i. 221, 226, Kelly V. Hutton, i. 70. V. Kelly, ii. 481. V. Lawrence, ii. 737. V. Moray, ii. 543. V. Morris, i. 6g, 70, ii. 543. V. Partington, ii. 3S0. V. Sherlock, ii. 387. V. Tinling, ii. 340. Kelsack v. Nicholson, i. 698. Kemp V. Balne, ii. 710. V. Burt. V. Neville, ii. 75, 98, I06, 800 INDEX OF CASES. Kemp V. Rose, ii. 99. 101. Kempston v. Butler, i. i(}, Ex parte, i. 387, 407. Adelphi, &c., v. Fairhurst, i. 58, ii. 442, 55O, 587. New Cattle Market v. Hodson, i. 239. (Rector of), Ex parte, i. 407. Livesay v. Hood, i. 540. Livett V. Wilson, i. 172, 410. LlandafT, &c.. Market Co. v. Lyndon, 13, Lloyd, Ex parte, i. 532. V. Burrap, i. 65. V. Peell, ii. 561. V. Sandilands, ii. 121, 124. V. Screw Collier Co., 396. Load V. Green, i. 541, 675. Lock V. Ashton, ii. 56. Locke V. Matthews, i. 406. Lockley v. Pye, i. 562. Loeschman v. Machin, i. 547, 625. Lomax v. Buxton, i. 528. London's (Bishop of), Case, i. 514. London (Bishop of) v. Web., i. 345, 346, 378. (City of) V. Pugh, i. 379. V, Wood, ii. loi. Chatham & Dover Railway, Re, ii. 301. (Mayor of) v. Cox, ii. 696, 698, V. Hedger, i. 378. & N. W. R. Co. V. Ackroyd, i. 143- V. Bartlett, i. 736. V, Bradley, ii. 241, 278, 285. V. Lancashire &c. Rail. Co., i. 226, 477- V. Skirton, L 273- V. Smith, ii. 279. &. S. W. Rwy. V. Blackmore, ii. 287. & West. Loan, &c., Co., i. 36a. Cotton Co., Re, ii. 131. INDEX OF CASES. 803 London & Devon Biscuit Co., Jie, ii. 131. & Provincial Tel. Co., Re, ii. 624. Long V. Orsi, 405. Longbottom v. Berry, i. 363, 792. V. Longbottom, ii. 705. Longford v. Ellis, ii. 561. Longman v. Tripp, i. 533. Longmeid v. HoUiday, ii. 452, 529, 534. Longmore v. Great West, Rail. Co., i. 272. Lonsdale (Earl) v. Curwen, i. 476. V. Nelson i. 290. V. Rigg, I 513. Looker V. Halcomb, ii. 21. Loosemore v. Radford, ii. 642. Lopes V. De Tastet, i. 631. Lord V. Mid. Rail. Co., i. 733. V. Sydney (Commrs. of), i. 514. Loring v. Warburton, i. Sio. Losh V. Hague, i. 80, 8g. Lotan V. Cross, i. 548. Ix)ton V. Devereux, ii. 167. Louis V. Louis, ii. 485. Lousley v. Hayward, i. 171. Lovegrove v. Lond. & Brighton Rail. Co., i. 608. ■V. White, i. 616. Lovell V. Martin, i. 523. v. Smith, i. 202. Lover v. Davidson, i. 73. Levering v. Lovering, ii. 489. Lovett V. Hobbs, i. 709, 769. Low V. Routledge, i. 69. V. Ward, i. 70, Lowe V. Carpenter, i. 19 [. V. Govett, i. 414. Lowe's Case, ii. 764. Lowelh V. Smith, ii. 48. Lowry v. Guildford, i. 614. Lowther v. Radnor (Earl), ii. 180. Lucan (Earl) v. Smith, ii. 370. Lucas V. Dorrien, i. 678, 679. V. Lond. Dock Co., i. 550. V. Tarleton, i. 814, 828, 835, 840. Ludlow V. Browning, 1. 542. Lukin V. Godsall, i. 314, 377, Lumby v. AUday, ii. 343, 352, 385. lumley v.*Gye, i. 18, 51, ii. 511, 524- Lumsden's Case, ii. 765. Lundy Granite Co., Re, i. 782, 798. Lunn V. Thornton, i. 153. Lunt V. Lond. & North Rail Co., i. 583. Lutterell v. Reynell, i. 55. Luttrell's Case, i. 163. Lycett V. Staff. & Uttox. Rail., ii. 301. Lyde v. Barnard, ii. 408. Lygo V. Newbold, i. 610. Lyme Regis (Mayor, &c., of), v. Henley, i, 91, ii. 548. Lynch v. Knight, ii. 43, 58, 352. V. Nurdin, i. 14, 40, 629, 636. Lyne, Ex parte, ii. 25. V. Leonard, i. 294. V. Siesfeld, ii. 584. Lynvi Co., Ex parte, i. 525. V. Brogden, i. 471. Lyon V. Knowles, i. 74. V. Mells, i. 731. V. Tomkies, i. 813. Lyons v. Blenkin, ii. 495, V. Martin, i. 827. Lysney v. Selby, ii. 417, 427, 455, 458. Lythgoe v. Vernon, i. 59. Maauss v. Henderson, i 685. M'Cance v. Lond. &. N. W. Rail. Co., 1 i. 733, ii. 621. MacCarthy v. Young, i. 35, 652. WQX€Az.n, Ex parte, ii. 495. M'Combiev. Davies, i. 499. Macrae v. Clark, ii. 167. M'Crea v. Holdsworth, i. 75. M'Curday v. Driscoll, ii. 48. M'Dermott v. Justices of British Guiana, ii. 215. M' Donald v. Rooke, ii. 69. V. Thompson, i. 524. M'Donnell v. Evans, ii. 608. V. M'Kinty, i. 398. MacDougal v. Patterson, ii. 665, 670. M'Dougall V. Claridge, ii. 328. M'Eniry v. Waterford, M'Fadzen v. Mayor, &c., of Liverpool, ii. 88. M'Gargor v.Deal & Dover Rail.Cc.ii. 437, V. Galsworthy, ii. 37. v. Gregory, ii. 373. V. Thwaites, ii. 100, 30& Mackay v. Ford, ii. 358. McKean v. M'lvor, i. 738. I McKenzie v. M'Leod, i. 369. 804 INDEX OF CASES. M'Kewen v. Cotching, i. 557. M'Kinnon v. Penson, ii. 2^,0. M'Kone v Wood, i. 285. M'Laughlin v. Pryor, i. 5yl. M'Leish v. Tate, i. 784. M'Leod V. M'Ghie, i. 563. M'Manus v. Crickctt, i. 470, 585. V. Lanc.,i.o., Rail. Co., i. 731, 732. M'Murray V. Wright, <,i. 591. McNiel's Case. M'Phersonv. Daniels, ii. 336, 364, 370, 374. 386. M'Swiney V. Haynes, i. 122, 139, 209. Mace V. Cammel, i. 535. V. Philcox, i. 63, i6g, 409. Machell v. Ellis, i. 825. Machu V. L. & S. W. Rail. Co., i. 728, Macklin v. Richardson, ii. 58o. Macrow v. Gt. West. Rwy., i. 709. Madrid Bank, &, ii. 413. Magdalena Steam Navig. Co. v. Mar- tin, ii. 582. Magnay v.'Burt, ii. 78, 84, 139. V. Monger, ii. 140. Magorv. Chapwick, i. 183. Mahoney v. Widow's Life Ass., ii. 588, Maitland v. Goldney, ii. 365, 377, Major V. Park Lane Co., i. 291. Malachy V. Soper, ii. 361. Mali Ivo, The, i. 597, ii. 5gi. Mallam v. Arden, i. 786. Mallinson v. Mallinson, ii. 484, 493, Malone v. Harris, i. 153, 155. Manby v. Scott, ii. 557. V. Witt, ii. 330. Manceaux, Ex parte, i. 83. Manchester & Altr. Rail. Co. v. Fullar- ton, ii. 241, 249. Sheff., &c.. Rail. Co. v. Work- sop Board of Health, i. 567, ii. 817. Man., Sheff. &. Lin. Rail.Co. v. WalHs.i. 269, 817. V. Wood, i. 296. Manders v. Williams, i, 548, 689. Mangan v. Atterton, i. 40. Manley V. Field, ii. 515. V. St. Helen's Can. & Rail. Co., i. 245. 275. M^nn V. Forrester, i. 679, 685. V. Shniffner, i. 679. Manning v. Clement, ii, 386. V. Farquharson, ii. 698, 707. V. Wasdale, i. 125. Mansergh, /» ?«, ii. no. Manton v. Moare, i. 536. v. Parker, March v. March, ii. 492, 494. Marchmont v. Marchmont, ii. 503. Marfell v. South Wales Rail Co., i. 269, 270, 274. Margate Pier Company (The) v. Hannam, ii. 184. Margetson v. Wright, ii. 416. Maria, The, i. 594. Marker v. Kendrick, i. 340. Markham v. Cobb, i. 55. Marks v. Lahee, ii. 617. V. Feldman, i. 527. Marlborough (Duke of) v. Saint John, i, 380. Marrable, Ex parte, i. 535. Marriott v. Lond. & S. W. Rail. Co., L 776. Marris v. Mavris, ii, 489. Marsh v. Conquest, i. 74. V. Dewes, ii. 572. V. Loader, ii. 15. V. Marsh, ii. 493. Marshall v. Martin, ii. 663. V. Moran, i. 594. V. Ross, ii. 472. V. UUeswater, i. 413. V. Watson, i. 382. V. York, Newcastle, &c.. Rail, Co., i. 718, 765, ii. 528. Marshalsea (The) Case, ii. 147. Marson v. Lond., Chat., & Dover Rail. Co., Martin, Ex parte, i. 541. V. Bell, ii. 161. V. Gilham, i. 342. V. Great Ind. Peninsul. Rail. Co., i. 708, 730. ,v. Great North. Rail. Co., i. 871, 609. V. Headon, i. 226, 227. V. Kennedy, ii. 591. V. Porter, i. 471. V. Pridgeon, ii. 190. INDEX OF CASES. 805 Martin v. Roe, i. 349, 354. V. Shopper, ii. 3. V. Strong, ii. 330. V. Temperley, i. 626. Martindale v. Smith, i. 496. Martini v. Coles, ii. 531. Martins v. Upcher, ii. 37, 232. Martyn v. Knowles, i. 551, ii. 530, 548. V. Williams, i. 154, ii. 630. Martyr V. Bradley, i. 361, 373. Mary's (Robert) Case, ii. 39. Mary Caroline, The, i. 637. Marzetti v. Williams, i. 18, 27. Mason v. Barker, ii. 238. V. Birkenhead Com., &c., ii. 291. V. Caesar, i. 290. V. Farnell, i. 696. V. Hill, i. 103. V. Keeling, i. 284, 388, 392. V. Mitchell, ii. 475. V. Newland, ii. 825. V. Paynter, ii. II2, 165. V. Sainsbuiy, ii. 652. V. Shrewsbury & Hereford Rail., i. t03, 176, 184. V. Tucker, ii. 670. Massam v. Hunter, i. 205. Massey, Re, i. 683. V. Goyder, i. 267. V. Johnson, ii. 201, 229, 6or. V. Sladen, i. 510. Masterman, Ex parte. Masters v. Farris, i. 832, ii. 653. Mather v. Lay, i. 531. Mathers v. Gieen, i. 87. Mathew v. Sherwell, i. 563. Mathie.'ion v. Harrod, i. 77. Matson v. Cooke, i. 447. Matthews v. Hopping, i. 667. Matthias v. Mesnard, i. 796. Matts V. Hawkins, i. 420. Maughan v. Sharpe, i. 658. Maund v. Monm. Rail. Co., ii. 548. Maunder v. Venn, ii. 520. Mawby, Ex parte, ii. 738. Maxwell v. Hogg, i. 70, ii. 468, 690, 691. May, Ex parte, ii. 199, 212. V. Brown, ii. 389. V. Burdett, i. 42, ii. 283, 307. V. Footner, ii. 628, 630. y. Great West. Rail., ii. 287. May V. Harvey, i. 691. Mayall v. Higby, i. 21, ii. 695, Mayer v. Burgess, ii. 714. Mayhew v. Eames, i. 38. V. Herrick, i. 508 V. Locke, ii. 184. V. Maxwell, i. 69. V. Nelson, i. 724. V. Suttle, i. 399, 547. Maynard v. Moseley, ii. 428. Hears v. Lond. & S. W. Rail. Co. I. 547, 623, 689. Mechelen v. Wallace, i. 785. Med. Nav. Co. v. Romney (Earl of), i III. Medina v. Stoughton, ii. 429. Melling v. Leak, i. 401. Mellor V. Baddeley, ii. 77. V. Leather, i. 829, ii. 31, 225. V. Spateman, i. 164. Mellors v. Shaw, i. 276, 280, 604. Melville v. Doidge, i. 666. Melvina, The, i. 622. Mennie v. Blake, i. 822, 823. Mercer v. Jones, i. 563. V. Peterson, i. 510. V. Stanbury, ii. 581. V. Whall, ii. 606. V. Woodgate, i. 258. Merest v. Harvey, i. 15, 386, 468, ii. 644. Meriton v. Coombes, i. 388, 395, 432. Merivale v. Exeter Turnp. Rd. (Trustees of), ii. 35, 332. Merryweather v. Nixon, ii. 651, Mersey Dock Trustees v. Gibbs, ii. 250. V. Penhallow, i. 275- Meryweather v. Turner, ii. 378. Mesnard v. Aldridge, ii. 460. Messiter v. Roe, ii. 583. Metcalf V. Hetherington, i, 216, 306. V. Lond. & Bri. &c., Rail. Co., i. 692, 726, 771. V. Lumsden, i. 518. V. Westaway, i. 133. Metropolitan Associat. v. Fetch, i. 213, 218, 221, 307. Bd. of Works v. Metro, Rail. Co., i. 141. Co. Ins. Soc. V. Brown, i 361. 8o6 INDEX OF CASES. Metropolitan Rail. Co. v. Tumham, ii. 678. Saloon O'm. Co. v. Haw- kins, ii. 309, 370, 387. Meyer v. Everth, ii. 459. Meyerstein v. Barber, i. 522. Meynell v. Angell, i. 693. Miciiael v. Alestree, i. 592. Michell V. Brown, i. 294. V. Hughes, ii. 544. V. Williams, ii. 71, 85. Micklethwaite v. Micklethwaite, i. 346. Middlesex, Sheriff of, Ex parte, i. 526, 529. Middleton v. Fowler, i. 770. Midi. Rail. Co. v. Checkley, i. 142. V. Daykin, i. 270. V. Pye, ii. 476. V. Taylor, ii. 740. Midelton v. Gale, ii. 226. Milan, The, i. 593, 598, 601, 622, 637. Milburn v. L. & S. W. Rail., i. 600. Mildred v. Weaver, i. 322. Miles V. Cattle, i. 774. Milford V Milford, ii. 481, 492, 493. Milgate v. Kebble, i. 510. Mill V. New Forest Comm., i. 179. Mil.ar v. Taylor, i. 68. Miller v. Miller, iL 510. V. Race, i. 506. 523. Milligan v. Picken. i. 74. V. Wedge, i. 627. Millington v. Fox, ii. 468. Mills V. Colchester (Mayor of), i. 156. V. CoUett, ii. 186. V. Graham, ii. 558. Milman v. Dolwell, i. 552. Milne v. Leisler, ii. 6l8. V. Marwood, ii. 404, 407. V. Milne, ii. 491, 510, 532. Milner, Ex parte, ii. 724. V. Miluer, ii. 485. V. Milnes, ii. 533. Milton V. Green, ii. 224. Miner v. Gilmour, i. 105, 150. Minet v. Morgan, i. 229. Minna, The, i. 595, 622. Minor v. Lond. &. N. W. Rail. Co., ii. 570. Minshull V. Lloyd, ii. 160. Minter v. Wells, i. 80, 82. Minter v. Williams, i. 86. Mires v. Solebay, i. 502. Mitchell V. Crassweller, i. 586, ii 58a, 629. V. Foster, ii. 18 9. V. Jenkins, ii. 92. V. Tarbutt, i. 428, ii. 56a. Mitten v. Faudrye, i. 481. Mobbs V. Vandenbrande, ii. 658. Mody V. Gregson, ii. 434. Moffatt V. Bateman, i. 36, 585. Mold V. Wheatcroft, i. 224, 225, ii. 685, Molesworth v. Robbins, 1. 681. Money v. Leach, ii. 224. Moneypenny v. Hartland, i. 611. Monk V. Sharp, i. 526. Monkton v. Ashley, ii. 53. Monmouth Canal Co. v. Harford, i. 442. Monm. Can. & Rail. Co. v. Hill, i. 417. Monprivatt v. Smith, ii. 604. Moody V. Spencer, i. 680. V. Steward, ii. 683. Moon V. Raphael, i. 564. Moone v. Rose, ii. 149. Moore v. Gt. South & West. Rail. Co., ii. 278. V. Meagher, ii. 369. V. Moore, ii. lao. V. Plymouth (Earl), i. 435. V. Rawson, i. 197, 200. V. Robinson, ii. 531. V. Watson, ii. 669, 671. V. Wilson, i. 765. Morant v. Chamberlain, i. 258, 328. Mordaunt v. Mordaunt, ii. '487. Morden v. Porter, ii. 193. Moreland V. Richardson, i. 131, ii. 688. Moreton v. Harden, i. 630. V. Holt, ii. 710. Morgan v. Cubitt, ii. 533. V. Hughes, ii. 40, 186. V. Knight, ii. 544. V. Lingen, ii. 309. V. Marquis, i. 508, 696. V. Met. Rail. Co., ii. 275, 280, 745, 760- V. Palmer, ii. 231. V. Powell, i. 475. V. Ravey, i. 748, 759. V. Seaward, i. 79, 81, 90. V. Sim, i. 36. INDEX OF CASES. 807 Morgan v. Steble, ii. 545. V. Vale of Neath R. Co,, i. 607, 609. Moriarty v. L. C. & D. Rail., i. 635. Morison v. Salmon, ii. 455, 462, 665. Morland v. Cook, i. 167. Morley v. Attenborough, i. 518, 523, ii. 429. V. Pincombe, i. 793. V. Pragnell, i. 234. Morphett v. Morphett, ii. 482. Morrell v. Martin, ii. 226. Morris v. Ashbee, i. 70. V. Branson, i. 87. V. Cannon, i. 534. V. Edgington, i. 138. V. Miller, ii. 504. V. Morris, i. 346, ii. 49I. V. Nugent, i. 286. V. Ogden, ii. 203. V. Reynolds, ii. gg. V. Robinson, ii. 597. V. Wright, i. 70. Morrish v. Murray, ii. 119. Morrison, Ex parte, i. 680. V, Gen. St. Nav. Co., i. 598. Morse v. James, ii. 159. Mortimer v. Cottrell, i. 476. V. Cradock, i. 561, ii. 635. V. S. W. Rail. Co., ii. 285. V. Wright, ii. 301. Morton v. Woods, i. 782, 784. Mosley v. Fosset, i. 664. Moss, Re, i. 681. V. Townsend, i. 762. Mossop V. Great North. Rail. Co., ii. 707. Mostyn v. Fabrigas, i. 52, 54, ii. 582. Motley -V. Downman, ii. 471. Motteram v. E. Co. Rail. Co., ii. 200. Moule V. Garrett, i. 29. Mounsey v. Ismay, i. 157, 179, 454. Mount V. Taylor, ii. 667. Mountjoy's Case, i. 155. Mountjoy v. Wood, ii. 107. Mountney v. Watton, ii. 373. Mountnoy v. Collier, ii. 573, 575. Mourilyan v. Labalmondiere, i. 291. Mouse's Case, i. 747. Muir V. Fleming, i. 673. Mulkern v Ward, ii. 310. Muller V. Moss, i. 534. Mullet V. Challis, ii. 113. MuUett V. Mason, ii. 447, 464. Mumford v. Oxford, Wore. & Wolv Rail. Co., i. 301. Mummery v. Paul, ii. 456. Mungean v. Wheal ley, i. 824, ii. 707, 715. Munns v. Isle of Wight Rail., ii. 301. Munro v. Butt, i. 612. Munster v. S. E. Rail Co., i. 729, 740. Murchie v. Black, i. 97, 102. Mure V. Kaye, ii. 50. Murgatroyd v. Robinson, i. 107, 248, 309. Murish v. Murray, ii. 577. Murly V. M'Dermott, i. 419. Murphy v. Caralli, i. 627. Murray, Ex parte, i. 540. V. Currie, i. 627. V. Hall, i. 419, 423. Muschamp v. Lan. & Pres. Rail. Co., i 738. Musgrave's Case, ii. 765. Musgrave v. Bovey, ii. 351. V. Forster, i. 133. Mushett V. Hill, Muspratt v. Gregory, i. 794, 798. Mutton V. Young, ii. 134. Myers v. L. & S. W. R., i. 707. Mytton V. Mid. Rail. Co., i. 738, 74X 767. Napier, Ex parte, ii. 731. Nargett v. Nias, i. 793, 826, 828. Nash, Ex parte, ii. 742. V. Dickenson, ii. 129. V. Lucas, i. 791. Nathan v. Buckland, i. 691. National Guar. Manure Co. v. Donald, i. 198. Naylor v. CoUinge, i. 361. V. Mangles, i. 677. Neale v. Cripps, i. 381. V. Mackenzie, i. 783. Neat V. Harding, i. 544. Needham v. Rawbone, i. 497. Neilau v. Hanny, i. 497. Neilson v. Betts, ii. 688. Nelson's Case, i. 205. l Nelson v. Couch, i. 596, 622, ii. 597. 8o8 INDEX OF CASES. i I Nelson v. Mackintosh, i. 667. Neporter, The, i. 602. Neville, Ex parte, i. 613 Newbold V. Coltman, ii. igg. Newbould v. Met. Rail. Co., ii. 197, 273. NewBruns.,&c., Rail Co. v.Conybeaie, ii. 4". 437- V. Muggeridge, ii. 4H. Newby v. Colt's Firearms Co., ii. 548. V. Harrison, i. 155. Newcastle (Duke of) v. Clarke, i. 448. V. Hundred of Brox- towe. i. 470. V. Morris, ii. 138. Newcombe v. De Roos, ii. 706. Newman v. Bendyshe, ii. 192. New River Co. v. Johnson, ii. 272. Newsam v. Carr, 294. Newsome v. Newsome, ii. 489. Newton v. Beck, i. 516. V. Boodle, ii. 680. V. Cubitt, i. 24. V. Ellis, ii. 262, 292. V. Harland, i. 394, ii. 11, 125. V. Holford, ii. 586. V. Newton, i. 516, 679. y. Rowe, ii. 664. V. Scott, i. 782. NichoU V. Allen, i. 91. V. Darley, ii. 141. Nicholls V. Chamberlain, i. 135. V. Parker, ii. 612. Nicholson v. Great West. Rail. Co., i. 777. V. Lane. & York Rail. Co., i. 271. V. Mouncey, i. 599. V. Williams, i. 409. Nicklin v. Williams, i. 210., NicoU V. Glennie, i. 549, ii. 554, 563. NicoUs V. Bastard, i. 548, 691, 765. Nightingale v. Adams, i. 822. Nixon v. Freeman, i. 791. V. Roberts, i. 591. Noden v. Johnson, ii. 11, 48, Norbury (Lord) v. Kitchen, i. 105. Norman v. Westcombe, i. 833. Normand's Patent, i. 79. Nonnandy, The, i. 600. Norris v. Baker, i. 289. V. Irish Land Co., ii. 740, 742, 760. Norris v. Seed, ii. 2g< v. Staps, i. 60. V. Williams, i. 66g. North v. Cox, i. 165. V. Gt. Northern Rail. Co. ii. 69a v. Holroyd, ii. 705, 714. V. Miles, ii. 162. V. Smith, i. 47, 572. North-East Rail. Co. v. CrbssUtnd, i. 141. V. Elliott, i. I \i, 144, 22S Northam v. Bowden, i. 447, 555. V. Hurley, i. 215. Northampton's (Lord) Case, ii. 374. Northampton (Mayor of) v. Ward, i. 396. Northumberland (Duke of) v. Houghton, i. 411. Northumbria, The, i. 595. Norton v. Nicholls, i. 75. V. Scholefield, i. 234, 308, ii. 371. Norway v. Rowe, i. 381. Norwood V. Pitt, ii. 33, 675. Notara v. Henderson, i. 601. Nott V. Nost, ii. 484. Nottingham Town Clerk's Case, ii. 732 Novello V. Sudlow, i. 68. Nugent v. Vetzera, ii. 499. Nuova Raffaelina, The, ii. 576. Nuttall V. Bracewell, i. 109. v. Staunton, i. 787. Nutting, Exparte, i. 534. Nylander v. Barnes, ii. 682. Oakes V. Turquand, ii. 412. V. Wood, ii. 8, 12, 54. Oakley v. Davis, ii. 606. V. Kensington Can. Co., ii. ago, V. Ports, and Ryde St. Packet Co., i. 713. O'Brien v. Bryant, ii. 386. V. Clement, ii. 372, 373. V. Lewis, i. 680. Ogle V. Atkinson, i. 690. O'Hanlan v. Gt. West. Rail. Co., i. 774. Ohrby v. Ryde Comm., ii. 250. Ohrloff V. Briscall, i. 596, 730. Oldacre v. Hunt, i. 315. Oldham v. Langmead, i. 88. Bridge Co. v. Heald, ii. 570. Olivant v. Berino, i. 550. INDEX OF CASES. 809 Olive V. Smith, i. 685. Qliver v. Barllett, i. 532. V. Oliver, i. 4S0, 516, 698. OUiet V. Bessey, ii. 102, 149. Onley v. Gardiner, i. Igl, 196. Onslow V. , i. 379. Oppenheim v. Russell, i. 743. V. White Lion Hotel Co., i. 758. Opperman v. Smith, i. 801. Orchard v. Rackstraw, i. 673. Ord, Ex parte, i. 542. Orme v. Orme, ii. 479. Ormond v. Holland, i. 280. Ormrod v. Huth, ii. 403, 432, 434. Orpheus (The), i. 595. Orpwood v. Barkes, ii. 377. Osbond v. Meadov^s, i. 13, Osborn v. Gough, ii. 37. Ostell V. Lepage, ii. 591. Overend & Co. v. Gurney, ii. 559. Overton v. Freeman, i. 303. Owen V. Burnett, i. 724. V. Knight, i. 553. V. Legh, i. 810. V. Lond. and N. W. Rail. Co., ii. 678. Owens V. Jones, ii. 570. V. Woosnam, ii. 570. Oxlade, In re, i. 710. V. North-East. Rail. Co., i. 710. Oxley V. Watts, i. 481, 804. Packer v. Wellstead, i. 206. Packlngton's Case, i. 378. Padmore v. Lawrence, ii. 357. Page V. Cowasjee Edulgee, i. 496. V. Hatchett, i. 117. V. Pearce, ii. 666. Paget's Case, Painter v. Liv. Gas Co., ii. 155, 2to. V. Lond. and Br. Rail. Co., i. 778. Palk V. Skinner, i. 195. Palmer's Case, i. 152. Palmer v. Fletcher, i. 148. V. Grand June. Rail. Co., ii. 291. V. Jarmain, i. 505. V. Lond. and Br. Rail. i. 744, 777- V. Lond. and S. W. Rail. Co., i. 778. Panton v. Ishara, i. 365, 371, 373, 377. V. Jones, i. 837. V. Williams, ii. 92, 93. Pape V. Lister, ii. 588. Papendick v. Bridgwater, i. 123. Pappa v. Rose, ii. 99. Pardington v. South Wales Rail. Co., i. 731. Pardo V. Bingham, ii. 599. Pariente v. Pennell, i. 531. Paris V. Levy, ii. 340. Parke v. Eliason, i. 539. Parker v. Bristol and Ex. Rail Co., ii. 713. 715- v. Crole, ii. 561. v. Flint, i. 749, 761. V. Godin, i. 549. ». Gt. West. Rail. Co., i. 746. v. Leach, i. 171. v. Mitchell, i. 193. V. Norton, ii. 561. V. Patrick, i. 675. V. Smith, i. 221. V. Staniland, i. 446. V. Tootal, ii. 658. Parkes v. Stevens, i. 82, 89. Park Gate Iron Co. v. Coates, ii. 714. Parkins v. Scott, i. 13, ii. 255, 364. Parkinson v. Gt. West. Rail., i. 777. V. Lee, ii. 433. V. Parkinson, ii. 483, 484. Parmenter v. Webber, i. 781. Parmiter v. Coupland, ii. 341, 390, 391. Parr v. Lillicrap, ii. 668. Parrett Navigation Co. v. Robins, i. 264. Parrington v. Moore, ii. 26. Parrot v. Carpenter, ii. 342. Parrott v. Anderson, i. 790, 807. V. Palmer, i. 382, ii. 69I. Parry v. Roberts, i. 666. V. Thomas, i. 441. Parsons v. Brown, ii. 90. V. Gingell, i. 798, 799. V. Lloyd, ii. 41, 144. V. St. Matthews, Beth. GreeHj ii. 250. Parteriche v. Powlett, i. 346. Parton v. Williams, ii. 233, 236. Partridge v. Elkington, ii. 151. V. Gardner, ii. 659. V. Scott, i. 97, 186. 8 10 INDEX OF CASES. Pasley v. Freeman, i. 48, 49, ii. 404, 408, 462, Patch V. Ward, ii. 216. Pater, Re, ii. 213, 215. V. Baker, ii. 362, 627. Paterson v. Harris, ii. 604. V. Paterson, ii. 480. V. Wallace, i. 603. Patrick v. Colerick, i. 432, 456. Patrickson v. Patrickson, ii. 507. Patten v. Rea, i. 634, 635. Patterson v. Patterson, i. 680, ii. 509. Pattisnn v. Jones, ii.. 331. Paul V. Paul, ii. 4g2. Pauli, Ex parte, i. 540. Pawly V. Holly, i. 703. Pawsey v. Gooday, ii. 715. Pawson V. Watson, i. 407, 419. Payne v. Beaumorris, ii. 352. V. Brander, i. 518. V. Rogers, i. 266, 310. V. Shedden, i. 180, 202. Peaceable V. Watson, ii. 625. Peachey v. Rowland, i. 302, 303. Peacock v. Bell, 578. V. Peacock, ii. 490, 491. V. Reynal, ii. 375. Peake v. Oldham, ii. 343. Pearce v. Ornsby, ii. 382. V. Pearce, ii. 492. Pearcy v. Walter, ii. 44. Peardon v. Underhill, i. 453. Pearman v. Pearman, ii. 480. Pears v. Wilson, ii. 705. Pearse v. Coker, i. 475. V. Dobinson, ii. 216. Pearson v. Glazebrook, ii. 573. V. Le Maitre, ii. 382. V. Spencer, i. 13;, 203, 206, 207. Pease V. Chaytor, ii. 175, 179, 195, igg, ' 213, 226. V. Gloahec, i, 522. Peatfield v. Barlow, i. 681. Pechell V. Watson, ii. 180. Pedgrift v. Chevallier, ii. 219. Pedley V. Davis, ii. 100, 197, 199, 211, 223, 229. Peek V. Gurney, ii. 412. V. Larsen, i. 669. V. North StaflF. Rail. Co., i. 730, 731. 733- Peck V. Spencer, i. 229. V. Waterloo, &c., Loc. Bd.,i. 28B, 291. Peel's Case, ii. 413. Peer v. Humphrey, i. 517, 675. Peerless, The, i. 594. Re, ii. 204. Pegler v. Monm. Rail. Co., i. 745. Pell V. Northampton and Banbury Rail, Co., ii. 301. Pellas V. Bresslauer, ii. 667, Pemberton v. Colls., ii. 351. Pembroke's (Earl of) Case, i. 163, Penfold V. Westcote, ii. 346. Penn v. Bibby, ii. 688. V. Jack, i. 86, ii. 686. V. Ward, ii. 49, 54. Pennell v. Woodburn, ii. 641. Penny In re, ii. 107, 218, 283, 658. Penruddock's Case, i. 233, 300, ii. 536. Pen son t. Gooday, ii. 634. Penton v. Browne, ii. 120. V. Robart, i. 360. Peppercorn v. Hofman, ii. 224. Peppin V. Shakspear, i. 129, 439. Percival v. Nanson, ii, 618. V. Stamp, i. 446, ii. 129, 138. Perham, In re, ii. 188. Perkins v. Smith, ii. 555. V. Vaughan, ii. 648. Perkinson v. Gilford, ii. 559. Perren v. Monm. Rail. Co., ii. 608. Perrot v. Perrot, i. 378. Perry v. Bennett, ii. 677. V. Fitzhowe, i. 289. V. Truefitt, ii. 469. Perryman v. Lister, ii. 51, 66. Peskett V. Somers, i. 783. Petch V. Tutin, i. 154. Peter v. Daniel, i. 441. V. Kendal, i. 24. Peterson v. Ayre, ii. 638. Peto V. Blades, ii. 442. Petrie v. Lamont, i. 828, ii. 84,88, 564, 608, Pettimangin, Ex parte, ii. 181. Pewtriss V. Austen, ii. 437, 455. Peyton v. London (Mayor of), i. 186. Phelps V. Lond. and N. Western RaiL Co., i. 708, 740. Phene v. Popplewell, i. 782. Pheysey v. Vicary, i. 135, 207. INDEX OF CASES. 8ii Philippine, The, i. 683. Philips V. Biron, ii. 41. Phillips V. Bacon, ii. 658. V, Barlow, i. 345. V. Berryman, i. 834, ii. 594, V. Clark, i. 730. V. Eyre, i. 52, 54. V. Homfray, i. 471. V. Hudson, i. 229. V. Jansen, ii. 375, V. Jones, i. 701. V. Phillips, ii. 479, 489. V. Naylor.ii. 72, 77. 91. V. Shervill, i. 782. V. Smith, i. 341. Phillipson v. Gibbon, i. 419. Philp V. Squire, ii. 511. Philpott V. Dobbinson, i. 831 V. Kelley, i. 498. Phosphate of Lime Co. v. Green, ii. 300. Phythian v. White, i. 451. Pianciani v. Lond. and S. W. Rail. Co., i. 723, 769. Pickard v. Sears, ii. 621. V. Smith, i. 253, 257. Pickering v. Dowson, ii. 442, 450. V. Rudd, i. 304. Pickford v. Grand June. Rail. Co., i. 707, 768. Pierce v. Bartrum, i. 62. Pierpoint v. Shapland, ii. 607. Piggot V. East Co. Rail. Co., i. 368, 509. Piggott V. Birtles, i. 805, 833, 840. V. Cubley, i. 496, 509. V. Stratton, ii. 521. Pike V. Carter, ii. 179. V. Nicholas, i. 70. Pilgrim v. Southamp., &c.. Rail. Co., Pilkington v. Cooke, ii. 146, 157. V. Riley, ii. 37. Pillot V. Wilkinson, i. 503. Pilmore v. Hood, ii. 452. Pim V. Curell, i. 639, ii. 615. Pindarv. Wadsworth, i. 2ii, 376. Pinhorn v. Souster, i. 401, 833. Pinkett v. Wright, i. 542. Pinnington v. Galland, i. 138. Pipe V. Fulcher, ii. 616. Pippet V. Hearn, ii. 93. Pitcher v. King, ii. 113. Pitt V. Donovan, ii. 36s V. Shew, i. 792. V. Yalden, i. 614. Pitts V. Gaince, ii. 531. Plant V. James, i. 207. Plasterers' Co. v. Parish Clerks' Co.., i, 188. Plas-yn-Mhowys Mining Co., Z"^, ii. 131. Play fair v. Musgrove, ii. 127. Playford v. United Kingdom Telegraph Co., i. 27, 668. Pluckwellv. Wilson, i. 584. Plumer v. Plumer, ii. 508. Plunket V. Gilmore, i. 51. Poe, In re, ii. 707. Polden V. Bastard, i. 206. Polhill V. Walter, ii. 404, 436, 454. Polkinhorn v. Wright, ii. 10, 52. Pollard, Ex parte, ii. 215. Pollen V. Brewer, i. 394. Pollitt V. Forrest, i. 784, 830. Pollock V. Lester, i. 242. Pomfret v. Ricroft, i. 136, 150, 20g. Ponsford v. Walton, i. 528. Pontifex v. Bignold, ii. 455. Poole's Case, i. 360. > Poole V. Huskisson, i. 323. Popham V. Pickburn, ii. 323, 338. Portland (Duke of) v. Hill, i. 159. Portman v. Middleton, ii. 463, 638. Postlethwaite v. Gibson, ii. 223. Potter V. Faulkner, i. 609. V. North, i. 171. Potteries, Shrewsbury, & North Wales Rail., Re, ii. 132. V. Minor, ii. 132. Potts V. Port Carlisle Co., i. 277, 604. V. Plunkett, i. 278, 604. V. Smith, i. 221, Poulson V. Thirst, ii. 293. Poulton V. Lond. and S. West. Rail. Co., ii. 27, 42. Pow V. Davis, ii. 437, 641. Powell V. Hodgetts, ii. 619. V. Rees, ii. 559. V. Salisbury, i. 124. _ • V. Thomas, i. 224. Powes V. Marshall, i. 826. Powle V. Gandy, ii. 67q. Powlett V. Bolton (Duchess of), i. 51 r. Powys V. Blagrave, i. 346, 347, 348, 381, 8l2 INDEX OF CASES. Poynton v. Gill, i. 234. Pozzi V. Shipton, ii. 563. Pratt V. Brett, i. 378. V. Jenner, ii. 492. V. Pratt, i. 436. Preece v. Corrie, i. 7?T, Prentice v. Harrison, ii. 159.1 Prestige V. Woodman, ii. 231. Preston, In re, ii. 495. Price V. Harewood, ii. 137. V. Hewett, ii. 442. 1. Messenger, ii. 224. V. Seeley, ii. 22, 51. V. Severn, ii. 655. V. Woodhouse, ii. 610. Priestley v. Fowler, i. 604, 615. Prickett v. Gratrix, ii. 184, 208, 232. V. Piatt, i. 535. Prince -v. Molt, ii. 656. Prince Albert v. Strange, i. 21, ii. 689. Princess Royal, The, i. 602. Pririgle v. Taylor, i. 563, ii. 635. V. Wernham, i. 221. Pristwick v. Foley, i. 615. Pritchard v. Long. i. 554, 620. Pritchett v. Boevey, i. 565, ii. 58, 642. Proctor V. Harris, i. 254, 259. 1. Hodgson, i. 138, 440. Progress Assurance Co., Re, i. 797. Prohibitions del Roy, ii. 696. Protheroe v. Mathews, i. 559. V. May, i. 88. Proud V. Holis, i. 454. Proudfoot V. Montefiore, ii. 453. Froudlove v. Twemlow, i, 840. Provost, &c.. Queen's College v. Hallet, i. 338, 340. Pudding Norton (Overseers of). Re, ii. 217. Pugh v. Acton, i. 362. V. Griffith, ii. 120. V. Vaughan, i. 346. Pullen V. Palmer, i. 788. PuKford V. Richards, ii. 407, 462. Pultney v. Keymer, i. 678. Parcell v. Macnamara, ii. 92. V. Nash, i. 380. Pursell v. Home, ii. 3, 7. Purves V. Landell, i. 615. Pye V. Mumford, i. 445. Pyer v. Carter, i. 135, 136. Pym V. Gt. North. Rail. Co., i. 622, U ess- Pine V. Dor, i. 345. Quarman v. Burnett, i. 591. Queensbury (Duke of) v. Shebbeare, L 21, ii. 689. Queen, The, i. 599. Queen's Case, The, ii. 608. Queen's College (Provost, &c., of) T. Hallett, i. 338. Queen v. Staines, ii. 129. Race, In re, ii. 496. V. Ward, i. 125, 156. Rackman v. Jesup, i, 555. . Radcliff v. D'Oyly, ii. 560. \ Raitt V. Mitchell, Ji Ralston v. Smith, i. 83, 85. Ram V. Lumley, ii. 319. Ramsay Re, ii. 104. Ramsbottom v. Burkhurst, ii. 160. Ramshire v. Bolton, ii. 462. Ranee's Case, i. 620. Rand v. Vaughan, i. 802. Randal v. Cockran, i. 371, ii. 652. Randall v. Raper, ii. 641, 642, 643. v. Stevens, i. 406. Randell v. Trimen, ii. 407, 436, 455, 463, 639. V. Wheble, ii. 162. Randleson v. Murray, i. 627. Rangeley v. Midland Rail. Co., ii. 297. Rankin v. De Medina, ii. 159. Ransome v. East Co. Rail. Co., i. 714, 779- Raphael v. Bank of England, i. 506, 524. V. Goodman, ii. 117. V. Pickfoid, i. 735. V. Thames Valley Rail. Co., ii. 298. Rapson v. Cubitt, i. 629. Rashall v. Ford, ii. 413, 420. Ratcliff V. Davies, i. 687. Ratcliffe v. Barnard, i. 616. V. Burton, ii. 119. V. Ratcliffe, it 503, S06. Rawlings v. Bell, 1. 815, ii. 439, 455, 937. V. Till, ii. 7. Rawlins v. Wickham, ii. 603. INDEX OF CASES. 8x3 Rawnsley v. Hutchinson, ii. 222. Reg.v Rawstorne v. Backhouse, i. 294. Rawstron v. Taylor, i. 185. V. Raymond v. Fitch, ii. 536. V. Rea V. Sheward, i. 480, 553. V. Read v. Burley, i. 794. V. V. Coker, ii. 3, 33, 224. V. V. Edwards, i. 44, 285, 392, 555. V. V. Gt. East. Rail. Co., i. 621. V. V. Vict, and Pimlico Rail. Co., ii. 280, 284. V. Reade v. Conquest, i. 72. V. V. Lacy, i. 72. Readhead v. Midi. Rail. Co., V. Reddie v. Scoolt, ii. 518, 519. V. Redfern v. Smith, i. 336. v. Redway v. Webber, ii. 660. V. Reece v. Rigby, i. 614. V. V. Taylor, ii. 51. V. Reed v. Harrison, i. 387. V. V. Taylor, ii. 77. v. V. Thoyts, ii. 162. V. Reedie v. Lond. & N. Western Rail. Co., i. 627. V. Rees V. Bowen, ii. 88. V. V. Davies, ii. 195. V. Williams, ii. 711, 715. V. Reeve v. Holgate, ii. 348. V. Palmer, i. 662, 694, 699. v. V. Taylor, ii. 54. v. V. Whitmore, i. Soo. V. Reeves v. Capper, i. 686. V. Reg. V. Aberdare Canal Co., ii. 215 697. V. V. Aberdeen Canal Co., ii. lOi. V. V. Abrahams, ii. 726, 731. V. V. Aire & Calder Nav. Co., i. 144, ii. 282, 745. V. V. Allen, ii. 180, 711. V. V. Ambergate, ii. 722, 732, 752, 753- V. V. Ardley, ii. 466. V. V. Arkwright, ii. 697. V. V. Ashby Folville, i. 331. V. Aston, ii. 211. V. V. Badger, ii. 215, 712. V. Baines, ii. 736. V. V. Baker, i. 332. V. Balby, &c., Turnpike Trust, ii. V. 731. V. V. Bateman, i. 287. V. T. Bedfordshire, ii. 612. V. T. Bessel, i. 74. V. . Birm., &c., Rail. Co., . 3 22, 745, 750. Blackburn, ii. 195. Blanshard, ii. 724. Bolton, ii. 218. , Boteler, ii. 196, 723. Bradford Nav. Co., ii. 243. Brickhall, ii. 189, 215. Brancaster Chur'liwardens, ii. 743- , Bristol Dock Co., ii. 730. Bristol & Exeter Rail. Co., ii. 729, 748. Brown, ii. 2i8i Browne, ii. 22i. Bryan, ii. 466. Bucks (Justices of), ii. l86, 219. Burslem Local Board, ii. 744, 746. Caledonian Rail. Co., \\. 748. Cambrian Rail. Co., i. 24, ii. 277. Casterton, ii. 205. Cheadle Highway Trustees, ii 748. Cheek, ii. 725, 755. Cheltenham Commers., ii. 214, 215. Chester (Dean and Chapter of), ii. 737- Chichester (Bishop of), ii. 718. Chorley, i. 203. Churchwardens, &c. , ii. 744. Coles, ii. 697. , Collins, ii. 221. Colvill, ii. 726. . Commissioners of Woods and Forests, ii. 745. , Cooper, ii. 376. , Cotesworth, ii. 7, , Cridland, ii. 193, 206. , Crowan, ii. 203. , Cumberland (Clerk, &c., of), ii. 746. , Darlington Local Board, ii. 241. Darlington School Governors, ii. 736, 756- Davis, ii. 224. Denny, ii. 190. Derby, ii. 739. Derbys, &c.. Rail. Co., ii. 742. Dickenson, ii. 200, 123, 216, 219, 8 14 INDEX OF CASES. '. V. Dodson, ii. 193. Reg. V. Kent Justices, ii. 723. V. Dolgelly Guard., &c., ii. 739. V. Kilham, ii. 467. V. UriscoU, ii. 8. V. Lambarde, ii. 212. V. Dunnas, ii. 465. V. Langley, ii. 394. V. Eagleton, ii. 465. V. Ledgard, ii. 748, 758. V. East. Co. Rail. Co., ii. 719, 748. V. Lee, ii. 466. V. East Marie, i. 324. V. Leech, i. 319. V. East Riding Justices, ii. 724. V. Leeds (Mayor of), ii. 739. V. Evans, ii. 466. V. Leicester Deputies, ii. 724. V. Fall, ii. 753, 756. V. Levi, i. 556. V. Farrer, i. 332. V. Light, ii. 21. V. Fox, ii. 726. V. Liver., Manch., &c., Rail. Co., ii. V. Frere, i. 746. 742. V. Garland, ii. yig, 739. V. Liverpool Recorder, ii. 724. V. Gen. Cemet. Co., ii. 742, 760. V. Lond. and Coleraine Rail. Co V. Gen. Council Med., &c., ii. 735. ii. 250, 742. V. Gillyard, ii. 216. V. Lond. and N. W. Rail. Co., ii V. Goodrich, ii. 724. 273, 280, 722, 726, 752, ii. 282. V. Gt. North of Engl. Rail. Co., i. 322. V. Lond. and S. W. Rail. Co., ii. V. Grey, ii. 216. 283, 284. V. Halifax Road Trustees, ii. 746. V. London (Lord Mayor of), ii. V. Hampshire (Justices of), ii. 661. 275. 737. V. Harden, i. 288, ii. 574. V. Long, ii. 711. V. Hardy, i. 57. V. Longton Gas Co., i. 320, ii. 294, V. Harris, i. 321. 299. V. Harwood, ii. 725. V. Lundie, i. 65. V. Hawkhurst, i. 328. V. McCleverty, i. 517. V. Hawkins, ii. 47, ig2. V. Mainwaring, ii. 221, 506, 751. V. Hellingley, ii. 2ig. V. Manch. & Sheffield Rail. Co., ii, V. Henson, i. 319. loi, 107, 182, 275. V. Herefordshire Justices, ii. 1S2. V. Manktelow, ii. 524. V. Hereford (Mayor of), ii. 750. V. Mann, i. 65. V. Herford, ii. 697. V. Martin, ii. 4. V. Hertfordshire Justices, ii. 182, 214. V. Master, ii. 562. V. Higginson, ii. igg. V. Mathias, i. 323. V. High Wycombe Rail. Co., ii. 744. V. Metrop. Board, &c., i. 98, ii. 272, V. Higham, ii. 2ig. 279. V. Hopkins, ii. 732. V. Metrop. Com. of Sewers, ii. 272. >■. Hornsea, i. 330. V. Metrop. Police (Receiver of), il V. Horn.sey (Inhab. of), i. 328. 732. V. Howes, ii. 496. v. Mid. Rail. Co., ii. 742. V. Hull and Selby Rail. Co., ii. 730, V. Middlesex Justices, ii. 222. 749- v. Monmouth (Mayor of), ii. 721 V. Huntingtower (Lord), ii. 214. 727. V. Huntley, ii. 222. V. Munster, ii. 29. V. Huntsworth, ii. 195. V. Musson, i. 409. V. Hurstbourne Tarrant, &c., ii. 744, V. Mutters, i. 257. 746. V. Newborough, ii. 712. Y. Jenkins, i. 287. V. Newton Ferrers, ii. 205. ». Johnson, ii. 4, 192, 2o5. V. New Windsor (Mayor of), ii. 7c I. v. Kendal, ii. 740. V. Newport Guardians, ii. 724. INDEX OF CASES. :i5 Reg. V. Norfolk Comm. of Sewers, ii. 744- V. North Mid. Rail. Co., ii. 722. V. Norwich and Brandon Rail. Co., ii. 748. V. Nunneley, ii. 195. V. Orchard, i. 321. V. Orton Trustees, ii. 731, 740 V. Oxford (Mayor of), ii. 739. Oxford, &c.. Roads, ii. 727. Payn, ii. 172, 732. Paynter, ii. 221, ii. 755. Petrie, i. 324. Pinder, ii. 29. Ponsford, ii. 731. Powell, ii. 750, 755. Pratt, ii. 209. Purdey, ii. 219, 222, Ragg, ii. 466. Ramsden, i. 330. Rand, ii. 102, 182. Riall, ii. 714. Richards, ii. 220, 724. Richmond Recorder, ii. 724, 747. Rochester (Dean, &c., of), ii. 736. Roebuck, ii. 466. Rogier, i. 320. Rose, i. 6r. Rotherham, ii. 744, Rynd, ii. 745. Sadler's Co., ii. 734, 735. St. Albans, ii. 215. St. George's, Bloomsbury, ii. 201, 205. V. Saintiff, i. 321. V. St. Luke's, ii. 278, 749. V. St. Luke's, Chelsea, V. St. Martin's, ii. 739. V. St. Stephen's, ii. 737. V. Salford, ii. 697. V. Salop, ii. 195. v. Scaife, ii. 716. V. Scott, ii. 193. V. Scotton, ii. 188. - V. Sheffield (Mayor of), ii. 263, 711. V, Sherwood, ii. 466. V. Skinner, ii. 359, V. Smith, ii. 466, 495. T. Southampton Port Commrs., ii. 749- V. S. E. Rail Co., ii. 749. Reg. V. South Wales Rail. Co., ii. 137 283. V. Spencer, ii. 216. V. Stamford (Mayor of), ii. 755. V. Stannard, i. 320. V. Stephens, i. 262. V. Stewart, ii. 727, V. Stimpson, i. i68, ii. 194. V. Stock, ii. 210. V. Stockton, ii. 204. V. Stone, ii. 275. V. Strand Board of Works, i. 414. V. Suffolk Justices, ii. 182. V. Suffolk, ii. 712, 714. V. Surrey Justices, i. 182, 330, ii 712. V. Thallman, i. 321. V. Timmins, ii. 496, 524. V. Tithe Commissioners, ii. 748. V. Totness, ii. 203, 210. V. Train, i. 321, 328. V. Treasury (Comms. of ), ii. 732. V. Treasury (Lords of), ii. 732. V. Trustees of Cheadle Highw., ii 748. V. Twiss, ii. 698. V. United Kingd. Teleg. Co., i. 328 V. Vaughan, ii. 272. V. Victoria Park Co., ii. 729, 743. V. Wallasey Local Board, ii. 273. V. Warwick Justices, ii. 215. V. Watson, i. 321. V. Watts, i. 266. V. West Riding Justices, ii. 213 724. V. Whitecross Street Prison (Gover nor's of), ii. 726. V. Williams, i. 320. V. Wing, ii. 742. V. Wood, i. 61, 64, ii. igg, 200, 21S V. Wood Ditton Surveyor-;, ii. 728. Regnart v. Porter, i. 785. Raid V. Ashby, ii. 671. V. Fairbanks, i. 562. V. Margison, ii. 160. Reignolds v. Edwards, i. 54 Renuison v. Walker, ii. 566. Renshaw v. Bean, i. 201. Revett V. Brown, i. 448. Revis V. Smith, ii. 320, 359. Rex V. Abingdon (Lord), ii, 337. 8i6 INDEX OF CASES. Rex V. Abingdon (Mayor, &c., of), ii. 750, 756. V. Allen, ii. 216. V. Amphlit, ii. 377. V. Arkwright, i. 80, 83, 87. V. Atkins, ii. 217. V. Austin, ii. 205. V. Avering Atte Bower, ii. 721. V. Axbridge (Mayor, &c., of), ii. 740. V. Backhouse, ii. 124. V. Bagley, i, 330. V. Bank of England, ii. 742. V. Barker, ii. 739, V. Barr, i. 322. V. Beare, ii. 374. V. Bedford Level, ii. 739. V. Benn, ii. 725. V. Berkley, ii. 216. V. Betterton, i. 317. V. Birmingham Canal Co., ii. 722. V. Birmingham Rector, ii. 738. V. Bimie, ii. 182. V. Bradshaw, i. 808. V. Brangan, ii. 91. V. Brecknock, &c., Canal Co., ii. 748. V. Bristow, ii. 727. V. Buckingham (Marquis of), i. 324. V. Burdett, ii. 377, 393. V. Burnaby, ii. 193. V. Butterton, i. 382. V. Cambridge, ii. 739. V. Cambridge Justices, ii. 725- ■ V. Cambridge University, ii. 739. V. Carlile, ii. 335. V. Cashiobury Justices, ii. 210. y. Chalke, ii. 736. V. Chandler, ii. 204. V. Churchill, i. 165. Y. Clapham, ii. 733. V. Clear, ii. 731, 748. V. Colchester (Mayor of), ii. 739. V. Colebrook, ii. 725. V. Coleridge, ii. 728. V. Commissioners of Customs, ii. 727. V. Commissioners of Sevi^ers of Es- sex, i. 167. V. Commissioners of Tower Hamlets, ii. 262. v. Cotton, i. 783. Rex V. Creevey, ii. 337. V. Cross, 1. 319. V. Croydon Churchwardens, ii. 733 740. V. Crunden, i. 63, i6g, 320. V. Cumberland Justices, ii. 720, 724, V. Curghey, ii. 750. V. Dant, i. 282. V. Davies, ii. 216. V. Davis, ii. 205. V. De Manneville, ii. 496. V. Derbyshire Justices, ii. 215, V. Dewsnap, i. 319. v. Dixon, i. 320. v." Dobbyn, ii. 205. V. Doherty, ii. 64. v. Dorset Justices, i. 317. V. Ecclesfield, i. 300. V. Edwards, ii. 205. V. Ely (Bishop of), ii. 726. v. England (Bank of), ii. 742, V. Essex, ii. 222, 262. V. Exeter (Bishop of), ii. 751. V. Faversham Fish. Co., ii. 752. v. Gaskin, ii. 734 ■ v. Grantham, ii. 725. V. Great Chart, ii. 180. V. Great Yarmouth, ii. 180, V. Greenhill, ii. 497. V. Griffiths, ii. 751. V. Gudridge, ii. 180, V. Hardwick, ii. 620. V. Harrison, ii. 203. V. Hastings (Mayor of), ii. ^n. V. Hat&eld, i. 415. V. Hazell, ii. 204. V. Hendon, ii. 739. V. Hermitage, i. 205. V. Higginson, i. 319. V. Holt, ii. 394, 395. V. Hoseason, ii. 180. V. Hostmen of Newcastle, V. Huggins, i. 284. V. Hull,i. 837. V. Hurnphery, i. 684. V. Ilchester Bailiffs, &c., ii. 7*5. V. Ingram, ii. 732. V. Ivens, i. 748. V. James, ii. 104. V. Jefferies, ii. 207. V, Jeyes, ii. 727, INDEX OF CASES. 817 Rex v„ Johnson, ii. 204. Rexv. V. Jones, i. 319, 320. V. V. Jotham, ii. 735, 739. V. V. Jukes, ii. 202, 203. V. V. Kent Justices, &c., ii. 720. V. V. King, ii. 217. V. V. Langley, ii. 393. V. V. Leake, i. 326. V. V. Leeds and Selby Rail. Co., ii. V. 282, 74S. V. V. Leicester Justices, ii. 726. V. V. Liverpool (Mayor of), ii. 736, 752. V. V. Lloyd, i. 322. V. V. London Dock Co., ii. 278. V. V. London (Mayor, &c., of), i.. 446, V. ii. 737, 7';i. V. V. Londonthorpe, i. 353. V. Lyme Regis (Mayor of), ii. 752. V. V. March, ii. 740. V. V Margate Pier Co., ii. 749, 755. V. V. Merchant Taylors' Co., ii. 742. V. V. Middlesex Justices, ii. 725. V. V. Midhurst, ii. 725. V. V. Milverton (Lord of), ii. 725. V. V. Mitton, i. 545. V. V. Monmouth Justices, ii. V. V. Montacute (Lord), ii. 721. V. V. Moor Critchell, ii. 205. V. V. Moore, i. 250, 319. V. V. Moreley, ii. 213. V. V. Morley, li. 203. V. V. Morpeth Ballivos, ii. 733. V. V. Neil, i. 319. V. V. Newcastle Coopers, &c., i. 65. V. V. North, ii. 203. V. V. North Riding, &c., Justices, ii. V. 725. V. V. Norwich (Dean, &c., of), ii. 739. V. V. Norwich (Mayor of), ii. 758. V. V. Nottingham Old Water Works, V. ii. 744- V. V. Osborne, ii. 393. V. V. Otiey, i. 355. V. V. Oxfordshire Justices, V. V. Pagham (Commissioners of), i. 2, V. 8, 264. V. V. Pappineau, i. 319. V. V. Payn, ii. 727, 732. V. V. Pease, ii. 241, 249. V. V. Pedley, i. 244, 245, 265. " V. ' ▼. Pilkington, ii. 756. V. ' II.— 52 . Pocock, ii. 394. Price, ii. 204. , Priest, ii. 207. Reed, ii. 90. Revel, ii. 181. Richardson, ii. 73b. Ripon (Mayor of), ii. 750, 756. Rislip, ii. 386. Robinson, ii. 47. Rosewell, i. 289. Russell, i. 319, 321, 329. St. Cath. Dock Co., ii. 743. St. George, ii. 3. St. Nicholas, ii. 736. Sankey, i. 681. Severn and Wye Rail. Co., ii, 730. Sillifant, ii. 726, Smallpiece, i. 748. Smith, i. 248, 320, ii. 734. Southerby, ii. 136. Sparrow, ii. 87. , Speed, ii. 202. Stafford (Marquis of), ii. 731 , Staffordshire Justices, ii. 726, , Stoke Damerel, ii. 738. Stratford (Mayor of), ii. 636. Symonds, ii. i8i. Taylor, i. 319. Tindall, i. 321. Topham, ii. 392. , Tower, ii. 739. Treasury (Lords of), ii. 731. , Vantandillo, i. 319. Ward, i. 321, 328. Watson, i. 319, ii. 378, 390, 393. Watts, i. 266. , Wells (Mayor of), ii. 720. Weltye, ii. 393. West Torrington, ii. 172. , Westwood, i. 61. Wheeler, i. 81, 83. White, i, 319, ii. 393. Wildman, ii. 733. , Williams, ii. 393. Wilson, ii. 495. , Wilton (Mayor oi% ii. 736. Winchester (Mayor of), ii. 739. , Windham, ii. 73^4. 741. , Wix, ii. 738. , Worcestershire Canal Co., ii. 740, 8i8 INDEX OF CASES. Rex V. Worcestershire Justices, ii. 725. V. Wright, i. 328, 456. V. Wrightson, Ji. 393. V. Yarmouth (Great), ii. 180. V. York (Archbishop of), ii. 751. Reynolds v. Barford, ii. 146. V. Bowley, i. 534. V. Clarlc, i. 233. V. Clarke, i. 388. V. Harris, ii. 680, 68l. V. Reynolds, i. 397. Rhodes v. Hull, ii. 115. Rice V. Dub. and Wick. Rail, Co., ii. 682. Rich V. Aldred, i. 691. V. Basterfield, i. 247. V. WooUey, i. 8og, 833. Richards v. Dyke, ii. 701. V. Frankum, i. 695. V. Gellatly, ii. 588. V. Harper, i. 102. V. Johnston, ii. 134. V. Lond. B.. &c.. Rail. Co., i. 737. 741. 770. V. Morgan, ii. 610. V. Richards, ii. 389. V. Rose, i. 145. V. Symons, i. 553. V. Turner, ii. 386. Richardson, Ex parte, i. 532, 534. V. Ardley, ii. 135. V. Atkinson, i. 498. V. Dunn, ii. 436, 639, 641. V. Goss, i. 685. V. Locklin, i. 297. V. Mellish, ii. 643. V. Metrop. Rail. Co., i. 578. V. North-East. Rail., i. 716. V. Williamson, ii. 437, 630. Richbell v. Alexander, ii. 546. Richmond v. Nicholson, ii. 560. V. N. Lond. Rail. Co., ii. 275. V. Smith, i. 754. Ricket V. Metrop. Rail. Co., ii. 241, 271, 278. '^xt^fM.i, Ex parte, \\. 732. V. East and West India Docks Rail. Co., i. 269 Riddle v. Pakeman, ii. 144. Rideal v. Fort, ii. 130, 138. Rideal v. Gt. West. Rail. Co., ii. 388. Rideout's Trusts, Rt\ ii. 501. Rider v. Smith, i. 214, 306. Ridgway v. Lord Statiord, i. 813. Riga, The, ii. 576. Rigby V. Hewitt, i. 593, ii. 635. Rigg V. Lonsdale, i. 165, 179, 513. V. Parsons, i. 375. Riley v. Baxendale, i. 604. Ringland v. Lowndes, ii. 273, 578, 74^ 752. Rinquist v. Ditchell, ii. 453. Ripon (Earl) v. Hobart i. 121, ii. 691. Rippin V. Bastin, ii. 195. Riseley v. Ryle, ii. 157, 162. Ritchings v. Cordingley, i. 408. Riviere v. Bower, i. 149. Roads V. Overseers of Trumpington, i 446. Robbins v. Jones, i. 258, 266, 267, 310. Robert Mary's Case, ii. 39. Roberts v. Camden, ii. 360, 379. V. Carr, i. 322. V. E. C. Rail. Co., ii. 588. V. Gt. West. Rail. Co., i. 270. V. Haines, i. 100. V. Humby, ii. 701. V. Hunt, i. 330. V. Macord, i. 221. V, Orchard, ii. 35. V. Read, ii. 2go, 6ot. V. Roberts, ii. 352. V Rose, i. 293, 309. V. Smith, i. 280. V. Taylor, i. 432, ii. 9. V. Thomas, ii. 128. V. Williams, ii. 38. V. Wyatt, i. 546. Robertson v. Adamson, i. 278. V. Fleming, i. 27. v. Gantlett, ii. 604. V. Sterne, ii. 671. V. Womack, ii. 714. Robins v. Barnes, i. 204. Robinson v. Briggs, i. 510. v. Byron (Lord), i. 121. V. Chartered Bank, ii, 687. V. Dunmore, i. 668, 741- V. Gell, ii. III. V. Gt. West. Rail Co., L 7">, 730. INDEX OF CASES. 819 Robinson v. Iloffinan, i. 788. V. Lenaghan, ii. 703, 707. V. Litton, i. 379, 381. V. Marchant, ii. 348, 371. V. S. West. Rail. Co., i. 723. V. Vaughton, ii. 185. V. Waddiiigton, i. 812. V. Ward, i. 662. V. Wiay, i, 132, 165. Robotham v. Robothara, ii. 491. Rochdale Canal Co. v. King, i, 16, n8. Rochester (Mayor of) v. Reg., ii. 727. Rocke, Ex parte, i. 529. Roden v. Eyton, i. 805. Rodger v. Comptoir d'Escompte de Paris, i. 522, 669. Rodgers v. Maw, i. 544. V. Novvill, i. 17, ii. 439, 455, 461. V. Parker, i. 814, 836, 840. Rodrigues v. Melhuish, i. 594. Rodriguez v. Tadmire, ii. 94. Roe V. Birkenhead, Lane, &c.. Rail. Co. ii. 554- Roebuck V. Stirling, i. 81. Rogers, Ex parte, i. 542. V. Brenton, i. 156, 158, 166. V. Challis, ii. 685. V. Clifton, ii. 332. V. Davenant, ii. 702. V. Driver, i. 75. V. Head, i. 667. V. Jones, ii. igo. V. Macnamara, i. 16, ii. 571. V. Ragendro Dutt, i. 23, 31, 50. V. Spence, i. 470, ii. 545, 584,605. V. Taylor, i. loi, 115, 185, 217. Roles V. Davis, ii. 628. Rolfe V. Gregory, i. 40S. V. Peterson, i. 379. Rolin V. Steward, i. 18. Rolle V. Whyte, i. 168, 293, 294. Rollins V. Hinks, ii. 374. Romney Marsh (Bailiffs of) v Trinity House, i 602. Ronneberj v.Falkland Islands Co.,ii.64i. Rooke V. i\liu. Kail. Co., i. 504. Rooth V.N. East Rail. Co., i. 270, 729. V. Wilson, i. 214, 223, 268 loper V. Harper, i. 452, ii, 563 Roret V. Lewis, ii. 78 Roscorla v. Thpmas, ii. 417, 455, Roscorla v. Rose v. Grovts, i. 262, 2gg. V. Hart, i. 677. V. Miles, i. 57, 299. V. Wilson, ii. 51. Rosewell v. Pryor, i. 149, 214, 245, ii, 597- Roskell V. Whitworth, ii. 692. Roskrugev. Caddy, i. 830. Ross v. Adcock, i. 349. V. Estates Invest. Co., ii. 412, 414, v. Hill, i. 667, 709. V. Norman, ii. 89. v. Ross, ii. 489. Rosse V. Bramsteed, i. 763. Rosvifell V. Prior, i. 214, 245, 247. V. Vaughan, ii. 428. Rotherey v. Wood, ii. 135. Routledge v. Hislop, ii. 593. Rowbotham v. Wilson, i. 100, 102, 153. 155. 159, ii. 599. Rowe V. Brenton, i. 555, ii. 617. Rowlands v. Samuel, ii. 95. Rowley v. Rowley, ii. 483. Rowning v. Goodchild, i. 35, 59,67. Royal British Bank, In re, ii. 414. Ruck v. Williams, ii. 261, 295. Rudd V. Scott, ii. 33. Ruffey V. Henderson, i. 362. Rugby V. Charity, Ex parte, ii. 727. Rugg V. Kingsmill, i. 407. V. Winchester (Bishop of), i. 407. Rumsey v. N. East. Rail. Co., i, 740. Runcorn v. Cooper, i. 174. Rundle v. Little, i. 561. Rushforth v. Hadfield, i 677, 743. Rushton V. Crawley, i. 82. Rushworth v. Taylor, i. 500. Russell V. Briant, i. 74. V. Cowley, i. 82. V. Harford, i. 136. V. Palmer, i. 613. V. Shenton, i. 305. Rutherford V. Evans, ii. 385. Rutland's (Countess of) Case), ii. 144 Ruttinger v. Temple, ii. 501. Ryall V. Rowles, i. 333. Ryan v. Clark, i. 431. V. Shilcock, i. 791, ii. 123. V. Thompson i. 832. Ryde Com. v. Isle of Wight Feny Co, ii. 687. 820 INDEX OF CASES. Ryder v. Bentham, i. 226. V. Ryder, ii. 493, 496. r Sabin v. Long, ii. 651. Sablicich v. Russell, i. 504. Sacheverell v. Porter, i. 160. Sadler v. Belcher, i. 539. V. Henlock, i. 624. Saffron Hill (Overseers of). Ex parte, i. Sagrill V. Milward, i. 389. Sahlgreen's Case, ii. 765. Saint Devereux v. Much Dew Church, ii. 507. St. Albans (Duke of) v. Skipwith, i. 349. St. Germans (Earl of) v. Crystal Palace Rail, ii, 301. Saint Helen's Smelting Co. v. Tipping, i. 240. Saint John's Coll. v. Murcott, i. 797. St. Luke V. Middlesex Justices, ii. 725. St. Margaret's Rochester (Burial Board of) V. Thompson, i. 408. St. Martin's, Birmingham, (Rector of), Ex fartey i. 407. St. Mary Newington v. Jacobs, i. 396. St. Pancras Vestry v. Batterbury, i. 65.* St. Paul V. St. Paul, ii. 48S. Salisbury (Marquis of) v. Gt. North Rail. Co., i. V. Gladstone, i. 159. 350. Salisbury v. Metrop. Rail. Co., ii. 687. Salmon v. Bensley, i. 300. V. Ward, ii. 418. Salter v. Metrop. Distr. Rail., ii. 288. Salters' Co. v. Jay, i. 177. Sammell v. Wright, i. 589. Sampson v. Hoddinott, i. 104, 107, 182. V. Mackay, ii. 668. V. Smith, i. 315, 318. Samuel v. Buller, ii. 143. V. Payne, ii. 17. Sandeman v. Scurr, i. 599. Sanders v. Spencer, i. 760. Sanderson v. Bell, i. 671. Sandford v. Clarke, ii. 653. Sandon V. Jervis, ii. 53, 121. Sandys, Ex parte, ii. 736. Sankey Brook Coal Co. (Jie), i. 669. I Sarazin v. Hamel, i. 75. Sarch v. Blackburn, i. 284, 285. Saterthwaite v. Duerst, ii. 513. Saunders v. Bate, ii. 628. V. Edwards, ii. 601. V. Mills, ii. 334. V. Musgrave, ii. 162. V. Newman, i. 182. V. Oliffe, i. 205. V. Plummer, i. 748. V. Saunders, ii. 480. V. Smith, ii. 686, 68g. Saunderson v. Baker, ii. 128. Savage v. Brook, i. 64. Savile v. Jardine, i. 12, ii. 305, 343. V. Roberts, ii. 79, 80, 85, 94. Savill v. Barchard, i. 677. Saville v. Sweeney, ii. 534. Savin v. Hoylake Rail. Co., ii. 723. Savory v. Price, i. 80, 83. Sawin v. Guild, i. 86. Saxby's Patent, i. 79. Saxby v. Manchester Rail,, i. 214, 244. V. Easterbrook, ii. 688. Saxon V. Castle, ii. 80. Scarfe v. Morgan, i. 509, 670, 674. Scattergood v. Silvester, i. 517. Schneider v. Heath, ii. 419, 456. Scholefield V. Robb, ii. 461. V. Templer, ii. 438. Schotsmans v. Lane, and Yorksh. Rail. Co., ii. 685, 6go. Schroder v. Ward, ii. 676. Schuringe v. Dowell, i. 323. Schuster v. M'Kellar, i. 549. Schwalbe, The, i. 594. Scothorn v. South Staff. Rail. Co., i. 738. Scott V. Craig, i. 280. V. Dixon, ii. 405, 411, 457. V. Dub. and Wickl. Rail. Co., i. 42, 609. V. Hanson ii. 418. V. Jones, ii. 6ll. V. London Dock Co., i. 37, 254, 578, 633. V. Manch. (Mayor, &c., of ), ii. 446, 550. V. Marshall, ii. 161. V. Newington, i. 546. V. Pilkington, ii. 591 V. Porcher, i. 522. V, Rayment, ii. 685, INDEX OF CASES. 821 Scott V. Scott, i. 5;9, ii. 482. V. Seymour (Lord), i. 54, ii. 591. V. Sliepherd, i. 9, 14, 629. V. Stanford, i. 69. V. Stansfield, ii. 100. V. Surman, i. 541. Scott V. Young, Ex parte, i. 33. Scratton v. Brown, i. 410. Seagram v. Knight, i. 344, 345. Seare v. Prentice, i. 612. Searle v. Law, i. 280, 698. V. Lindsay, i. 280, 607. Sears v. Lyons, i. 15, 470. Seddon v. Seddon, ii. 492, 503, 508. V. Tutop, ii. 594. Sedgworth v. Overend, i. 624. Sedley v. Sutherland, ii. 563. Seixov. Provezende, ii. 462, 469. Selby V. Cryst. Pal. Distr. Gas Co., i. 325. V. Greaves, i. 781. V. Robinson, i. 163. Seller v. Seller, ii. 491. Sellers v. Till, ii. 379. Selmes v. Judge, ii. 294. Sells V. Hoare, i. 835. Selway v. Fogg, ii. 403, 420. V. HoUoway, i. 769. Semayne's Case, ii. 120. Semple v. Lond. and Birm. Rail. Co., i. 315. Senhouse v. Christian, i. 140. Senior v. Medland, ii. 357. V. Metrop. Rail. Co., ii. 279. V. Pawson, i. 227. V. Ward, i. 280, 605, 610. Serres v. Dod, i. 826. Sewell, Ex parte, ii. 477. Seymour v. Greenwood, i. 47, 585, 586. V. Maddox, i. 278, 306, ii. 580. Shackell v. West, i. 658. Shadwell v. Hutchinson, i. 124, 212, 213^ 300, 314, ii. 596. Sharp, Ex parte, ii. 426. V. Grey, i. 573, 583. Sharpe v. Brice, ii. 6>I. V. Hancock, i. 95. Sharrod v. Lond. and N. W. Rail. Co., ii. 553- Shattock V. Garden, ii. 145. Shatwell v. Hall, ii. 34. Shaw, In re, i. 534. Shaw V. Harvey, i. 536,540. Shea V. United Assur. Co., ii. 571. Sheers v. Brooks, ii. 119. Sheffield Waterworks v. Yeomans, i, 228. Shelbury v. Scotsford, i. 699. Shelley v. Westbrooke, ii.497, 498. Shepherd v. Bristol and Exeter Rail. Co., i. 737. V. Harrison, i. 522. v. Hills, i. 65, ii. 274, 276. Sheppard v. Shoolbred, i. 521. v. Wakeman, i. i8. Sherborn v. Wells, ii. 189. Sheridan's Case, ii. 375, 378. Sheridan v. New Quay Co., i. 503, 773, 796. Sherwin v. Swindall, ii. 672. Shiels v. Gt. North. Rail. Co., ii. 569. Shilcock V. Passman, i. 615. Ship V. Crosskill, i. 620, ii. 435. Shipley v. Todhunter, ii. 380. Shipman's Case, ii. 765. Shirley v. Wright, ii. 160. Short v. Kalloway, ii. 641. Shower v. Pilck, i. 515. Shrewsbury's (Earl of) Case, ii. 735. Shrewsbury v. Blount, ii. 458. Shrewsbury (Countess of) v. Cromptoi^ i. 364. Shury v. Piggot, i. 95. Shuttleworth v. Cocker, ii. 665, 666, 672. V. Hernaman, i. 533. V. Le Fleming, i. 178, Sichel V. Lambert, ii. 507. Sichell's Case, ii. 765. ^ Sidley's Case, i. 321. Simmondsv. Gt. East. Rail. Co., i. 681. V. South East. Rail. Co., i 774- Simmons v. Edwards, i. 535, 541. V. Lillystone, i. 429, 498, iu 57q- V. Millingen, ii. 21, 23, 27. Simons v. Gt. West. Rail. Co., i. 681, 731. 733, 771. V. Patchett, ii. 463. Simpson v. Blues, ii. 576. V. Dendy, i. 415. V. Hartopp, i. 793. S32 INDEX OF CASES. Simpson v. Holliday, i. S3, ii. 6gi. V. I.ethwaite, i. 441. V. Robinson, ii. 383. V. Sadd, ii. 591. V. Savage, i. 301. V. Wells, ii. 193. Sinden v. Bankes, i. 66. Siner v. Gt. West. Rail. Co.. i. 577. Singleton v. East. Co. Rail. Co., i. 609. V. Williamson, i. 818, 819. Six Carpenters' Case, i. 387, 804. Skelton m. Lond. and N. W. Rail. Co., i. 579- V. Springet, ii. 501. Skinner, Ex parte, ii. 497. V. Chapman, i. 514. V. Lond. Br. &c.. Kail. Co., i. 573- V. Shoppee, ii. 662. Skipp V. East. Co. Rail. Co., i. 603. Skipton Indus. Co-operative Soc. v. Prince, ii. 571, 703. Skipwith V. , i. 762. Skull V. Glennister, i. 454. Skuse V. Davis, i. 454, ii. 46. Blackford v. Austen, ii. 141. Sladden v. Serjeant, ii. 609. Slade's Case, ii. 594. Slater v. Baker, i. 481, 612. V. Finder, i. 529. V. Sunderland (Mayor of), V. Swann, i, 480. Slatterie v. Pooley, i. 838. Sleat v. Fagg, i. 774. Sleath V. Wilson, i. 585. Sleddonv. Cruiksliank, i. 355. Slim V. Gt. North. Rail. Co., i. 770. Slocorabe v. Lyall, i. 431. Small V. Moates, i. 669. Smallcombe's Case, ii. 413. Smallman v. Pollard, ii. 136, 157, 163. Smart v. Hutton, ii. 117. V. Morton, i. 100, 147. Smeed v. Foord, ii. 635. Smith's Case, ii. 411. Smith, Ex parte, ii. 202, 220. In re, ii. 732. v.Ashforth, i. 805, 835. V. Birm. Gas Co., ii. 547, 548. V. Bonsall, i. 162. T. Brown, i. 596, 602, 622. Smith V. Brownlow (Earl o^, i, 229. V. Carey, ii. 379. V. Dearlove, i. 760, 762, V. Edge, ii. 671. V. Feverell, i. 211. ' V. Goodwin, i. 807. ' V. Gt. East. Rail. Co., i. 285 V. Harnor, ii. 669. V. Hopper, ii. 33, 34, 293. V. Hudson, i. 541. V. Kenrick, i. no. V. Knowelden, ii. 627, V. Lawrence, i. 589. V. Lloyd, i. 399. V. Lond. and Br. Rail. Co., i. 725- v. Lond. and N. W. Rail. Co., ii. 530. V. Lond. and S.W. Rail. Co., i. 369, V. London Dock Co., i. 276. V. Mayor of London, ii. 704. V. Mapleback, i. 781. V. Milles, i. 555. V. Moifat, ii. 543. V. Powdich, i. 35. V. Pritchard, ii. 117, 147. V. Reese River Mining Co., ii.413. V. Render, i. 359. V. Richardson, ii. 373. V. Royston, i, 450. V. Russell, i. 797. V. Shaw, ii. 290. V. Shirley, i. 430. V. Smith, ii. 287, 492, 556. V. Spooner, ii. 361. V. Stokes, i. 256. V. Sydney, ii. 42. y. Taylor, ii. 385. V. Tett, i. 474. V. Thackerah, i. 20, ii. 290, 599. V. Thomas, ii. 371. V. Topping, i. 533. V. Wiltshire, ii. 233, 290. V. Wood, ii. 375. V. Wright, i. 804, 808. V. Young, i. 501. Smout V. Ilbery, ii. 407, 436, Smyth v. Carter, i 337, 381. Smythe v. Smythe, i. 345. Snag v. Gray, ii. 350. Snead v. Watkins, i. 762. Snelgrove v. Hart, ii. 546. INDEX OF CASES. 823 Snelgrove v. Sterens, ii. 610. Snell V. Finch, i. 788. Snook V. Davidson, i. 685. Snow V. Leatham, i. 505. V. Peacock, i. 506. Snowball v. Goodricke, ii. 162. Soady v. TurnbuU, ii. 561. Soames v. Edge, ii. 685. Soane v. Knight, ii. 339. Solomon v. I.awson, ii. 378, 379, 391. V. Vintners' Co., i. 97, 145, i86- Solomons v. Dawes, i. 503, 690. Soltau V. De Held, i. 249, 296, 317, 318. Some V. Barwish, ii. 536, 546. Somers, In re, ii. 276. Somerville v. Hawkins, ii. 356. Southampton, &c.. Bridge Co. v. Local Board, Southampton, ii. 260, 263, 295, 762. South Australian Co. v. Randell, i. 642. Southcote's Case, ii. 141. Southcote V. Stanley, i. 281, 306. Southee v. Denny, ii. 350, 627. Southerne v. Howe, ii. 446. Southernwood v. Ramsden, ii. 520. South East. Rail. Co. v. Richardson, ii. 679. South Essex Reclamation Co., Re, i. 680. South Yorkshire Rail. Co., In re, ii. 745- Sowell V. Champion, i. 840, ii. 155, 165, 650. Sowerby v. Coleman, i. 157. V. Prior, i. 349. Spackman v. Miller, i. 533. Spark V. Heslop, ii. 642. Sparry's Case, ii. 5gt. Speaker of Victoria Assembly v. Glass, ii. 104. Spears v. Hartly, i. 669, 677. Speck V. Phillips, ii. 56, 59, 648. Spedding v. Nevell, ii. 464. Speight V. Oliviera, ii. 517. Spencer v. Lond. & Birm. Rail. Co., i. 318. Spering v. Spering, ii. 479. Spill V. Maule, ii. 391. Spilsbu\7 V Micklethwaite, ii. 55, 158. Spokes V. Banbury Board of Health, i. 316. Spooner v. Brewster, i. 16. Spring, The, i. 507. Springhead Spinning Co. v. Riley, i, 23, ii. 310. Squire, Ex parte, i. 528. Stace V. Griffith, ii. 391. Stacey v. Stacey, ii. 494. Stafford (Marquis of) v. Coyney, i. 327, 455- Staffordshire, &c.. Canal Co. v. Birm. Canal Navigations, i. 184. Staight V. Burn, i. 202. V. Gee, ii. 36, 43. Stainback v. Fernley, ii. 411. Stainton v. Metrop. Board, &c., ii. 297. V. Woolrych, ii. 268. Stallard v. Gt. West. Rail. Co., i. 664. Stan>mers v. Yearsley, ii. 48. Stanford V. Robinson, i. 516. Stanhope v. Thorsby, ii. 212. Stannard v. Ullthorne, i. 614. Stannerd v. Lee, i. 77, ii. 68g. Stansfeld v. Cubitt, i. 531. V. Mayor of Portsmouth, i. 3' 2. Stante v. Pricket, ii. 53. Staple V. Heydon, i. 138. Staples V. Accid. Death Ins. Co., ii. 714. Stapley v. Lond., Br., and S. Coast Rail. Co., i. 83. Starling v. Turner, i. 50. Staveley v. Allcock, i. 789. Stead V. Williams, i. 80. Steadman v. Hockley, i. 683. Stebbing v. Met. Bd. of Works, i. 407 ii. 281. Stedman v. Bates, i. 831. v. Smith, i. 419. Steel v. Prickett, i. 323, 416. V. South East. Rail. Co., i. 628. Steele v. Midland Rail. Co., ii. 288. v. North Metrop. Rail. Co., ii 301. Stephens V. Elwall, i. 549, ii. 555. v. Myers, ii. 3. Stephenson, Re, ii. 478. V. Hart, i. 736, 765. Stevens v. Adamson, ii. 442. V. Benning, ii. 689. V. Chapman, ii. 66g, 671. V. Evans, i. 65. V. Jeacocke, i. 65, 67, 514. S24 INDEX OF CASES. Stevens v. Mid. Rail. Co., ii. 67, 86, 550. Stevenson v. Blakelocke, i. 680. V. Newnham, i. 526, 807. Steward v. Gromett, ii. 65. V. Young, ii. 361. Stevi^art's Case, ii. 413. Stewart, Ex parte, i. 537, 542. V. Austin, i. 620, ii. 435. V. Gt. West. Rail., ii. 588. V. Lond. and N. W. Rail. Co., i. 717, 719. 729. 740- V. Smith, ii. 88. Stiles V. Cardiff Steam Navigation Co., i. 284. V. Nokes, ii. 335. Stimson v. Farnham, ii. 145.] Stinson v. Browning, i. 256. Stockdale v. Hansard, ii. 236. Stockley v. Hornidge, ii. 86. Stockport Dis. Waterworks Co. v. Man- chester (Mayor of), i. 248, ii. 687. v. Potter, i. 109, 242, 248. Stockport, &c., Rail. Co., Re, ii. 271. otodhard v. Johnson, ii. 662. Stoessiger v. South East. Rail. Co., i. 725. Stokoe V. Singers, i. 200. Stonard v. Dunkin, i. 522. Stone V. Cartwright, i. 302, 625. V. Dean, ii. 714. V. Jackson, i. 255, 283. V. Marsh, i. 55. Stoneham v. Lond. & Bright. Rail., i. 160. Stonehouse v. Elliott, ii. 40. Storer v. Hunter, i. 362, 538. Storey v. Ashton, i. 586. Storr v. Crowley, i. 736. Story, Ex parte, ii. 701. V. Richardson, ii. 546. Stott V. Stott, i. 117. Stourbridge Canal Co. v. Dudley, i. 143. Strachy v. Francis, i. 349. Strader v. Graham, ii. 661. Strafford's Case, ii. 656. Stretton v. Gt. West. Rail., ii. 301. Strick V. Swansea Canal Co., i. 777. Strickland v. Waid, ii. 207. Strother v. Barr, ii. 608. Stroud V, Watts, ii. 664. Stuart V. Crawley, i. 717. V. Lovell, ii. 339. V. Whittaker, ii. 163. Stubley v. Lond. & N. W. Rail. Co., '. 580. Stubs v. Stubs, i. 515, 564. Studdy V. Studdy, ii. 486. Stukeley v. Butler, i. 152. Sturgis V. Smith, ii. 566. Sturt V. Blagg, ii. 322, 391. Submarine Telegraph Co. v. Dickson, i. 263. Suffield V. Brown, i. 135, 206. Suggate V. Suggate, ii. 494. Sumner v. Bromilow, i. 355, 361, 362. Sunbolf V. Alford, i. 762, 763. Surgeons' Company's Case, ii. 759. Surrey Canal Co. v. Hall, i. 324. Sury V. Pigot, i. 208. Sutcliffe V. Booth, i. 184, 292. V. Surveyors of Sowerby, i. 292, Suter V. Burrell, ii. 161. Sutherland v. Murray, i. 52. Sutton v. Buck, i. 546. v. Clarke, ii. 248, 252, 552, 562. . V. Gt. West. Rail. Co., i. 711. v. Johnstone, i. 58, ii. 78. V. Ld. Montfort, i. 226. V. Moody, 1. 513. V. South East. Rail. Co., ii. 694. V. Wilders, ii. 438. Swan, The, ii. 576. Ex parte, ii. 623, 764. V. Brit. Aust. Co., ii. 622, 761. V. Dakins, ii. 220. V. North Brit. Austr. Co., i. 36, 40, 41, ii. 622, 740. Swann v. Falmouth (Earl), i. 803. V. Phillips, ii. 408, 455. Swannell v. Ellis, i. 614. Swansborough v. Coventry, i. 148. Swayne's Case, i. 164. Sweet V. Pym, i. 686. Sweetman v. Guest, ii. 187, 189, 212. Swinfen v. Ld. Chelmsford, i. 61S, ii, 606. Swire v. Leach, i. 796. Swithin v. Vincent, ii. 365. Sybray v. White, i. 252, 310. Syeds v. Hay, i. 496, 564, 737. , Sykes v. Sykes, ii. 435, 492, 682. INDEX OF CASES. 825 Sylph, The, i. 602. Syme v. Harvey, i. 355. Symonds v. Dimsdale, ii. 714. Syms's Case, i. 163 Syms V. Chaplin, i. 770. Taafe v. Downes, ii. 102. Tabart v. Tipper, ii. 338. Taff Vale Rail. Co. v. Giles, i. 767. Tailors of Ipswich's Case, i. 60. Tait's Case, ii. 413. Tait V. Harris, ii. 563. Talbot (Earl) v. Scott, i. 381, 476. Talley v. Gt. West. Rwy., i. 741. Tancred v. AUgood, i. 547, 554, ii. 129, 136. 155- V. Leyland, i. 806, 811, 835. Tanistry's Case, i. 156. Tanner v. European Bank, i. 693. Taplin v. Atty, ii. 161. Tapling v. Jones, i. 187, 201. Tarleton v. M'Gawley, i. 22. Tarpley v. Blabey, ii. 374, 389. Tarrant v. Webb, i. 607. Tate V. Gleed, i. 799. Tattan v. Gt. West. Rail. Co., ii. 669. Tatton V. Wade, ii. 408, 455. Taunton v. Costar, ii. 11. Taverner v. Little, i. 632. Taylor v. Fisher, i, 451. Taylerson v. Peters, i. 787. Taylor v. Ashton, ii. 403, 411, 457. y, Blacklow, V. BuUer, ii. 450. V. Cass, ii. 667. V. Chester, i. 670. V. Chichester & Midhurst Rail- Co.,ii. 300. V. Cole, ii. II, 48, 604, i. 432, 436. V, Gt. Ind. Penins., V. Gt. North. Rail. Co., ii. 676. V. Green, ii. 453. V. Hawkins, \ V. Humphreys, i. 747. V. Lanyon, ii. 135. V. Nesfield, ii. 37, 232, 235. V. Pillow, i. 74. y. Plumer, i. 539. V. Robinson, i. 678. V. Smith, ii. 53. V. Stendall, i. 267. Taylor v. Whitehead, i. 139, 455. V. Willans, ii. 93. Tealby V. Gascoigne, ii. 161, Tear v. Freebody, i. 496. Tebb V. Hodge, i. 363. Tebbutt V. Brist. & Ex. Rail., i. 47, V. Selby, i. 215. Telford v. Met. Board, i. 304. Tenant v. Golding, i. 235, 305, 305. V. Goldwin, i. 146, 391. Tenham v. Herbert, i. 229. Tennant's Case, i. 80. Tennant v. Field, i. 809. Terry v. Huntington, ii. 217. V. Hutchinson, ii. 515. Thackthwaite v. Cock, i. 536. Thames Conservators v. Hall, i. 594, V. Victoria Station Co., ii. 276. Thames Iron Works Co. v. Patent Der- rick Co., i. 671. Tharpe v. Stallwood, ii. 543, Tha.xbie v. Smith, ii. 634. Theobald v. Crichmore, ii. 32. V. Rail. Pass. Assur. Co.,ii. 638. Thistlewood's Case, ii. 374. Thorn i. Bigland, ii. 457. Thomas, Ex parte, V. Chirton, ii. 359. V. Daw, ii. 299. V. Harries, i. 803, 808, 819. V. Harris, i. 803, ii. 646. V. Jones, i. 379. V. Morgan, i. 312, ii. 456. V. Oakley, i. 378, 476. V. Philips, i. 519. V. Powell, ii. 59. V. Rhymney Rail., V. Roberts, ii. 497. V. Russell, ii. 93, 94. V. Saunders, ii. 43. V. Sorrell, i. 132. V. Thomas, i. 125, 206, ii. 492, V. Welch, i. 83. V. Williams, ii. 292. Thomlinson v. Brown, i. 200. Thompson, In re, ii. 190, 218. V. Bernard, ii. 346. V. Dallas, ii. 668. V. Gibson, i. 245, 247, 300, ii 666. 626 INDEX OF CASES. Thompson v. Giles, i. 539. V. Hill, i. 268. V. Ingham, ii. 218, 573, 706. V. Lacy, i. 749. V. Mashiter, i. 796. V. North-East. Rail. Co., i. 275- V. Nye, ii. 389. V. Pettit, i. 375. V. Ross, ii. 514, 516. V. Stanhope, ii. 68g. V. Thompson, ii, 480, 483, 492. V. Trevanion, ii. 6l8. V. Wood, i. 829. Thomson v. Simpson, ii. 462. Thorburn v. Barnes, ii, 99. Thorley v. Kerry (Lord), ii. 306. Thorn v. Bigland, ii. 437. Thome v. Tilbury, i. 553,699. Thornewell v. Wigner, ii. 570. Thornton v. Adams, i. 802. V. Pickering, ii. 386. Thorogood v. Bryan, i. 592, 630. V. Robinson, i. 499. Thorp V. Facey, i. 400, 406. Thorpe v. Adams, ii. 723. Ihresher v. East. Lond. Water Co., i. 361. Throgmorton v. Allen, ii. 15. Thurgood v. Richardson, i. 499, ii. 157. Tickle V. Brown, i. 193, 442, 444. Tidman v. Ainslie, ii. 356, 364, 374. Tighe V. Cooper, ii. 373. Tilk V. Parsons, ii. 384. Tilson V. Warwick Gas Light Co., 1. 65. Timothy v. Simpson, ii. 10, ii. II, 22. Tindall v. Bell, i. 637, ii. 640. Tinkler v. Wandsworth District Board, ii. 297, 300, 687. Tinsley v. Lacey, i. 69, 72. Tipping V. St. Helens' Smelting Co., i. 244, 317- Titchmarsh v. Chapman, ii. 701. Tobacco Pipe, &c., Co. v. Loder, i. 62. Tobin V. The Queen, i. 549. Todd V. Flight, i. 265. V. Hawkins, ii. 326. V. Todd, ii. 486. .Todhunter, Ex parte, i. 529. Toft V. Rayner, ii. 704. Tollemacher v. Lond. & S. W. Rail. Co. ii. 27. ToUit V. Sherstone, ii. 527. Tomlinson, In re, ii. 500. Tonson v. Walker, ii, 689. Toogood V. Spyring, ii. 331. Tooke V. HoUingworth, i. 539, 541. Toomey v. Lond. & Br. Rail. Co., i. 371 Topham v. Dent, ii. 545. Torrence v. Gibbons, ii, 519, 520. Torriano v. Young, i. 340. Tottenham v. Byrne, i, 415. Towne v. Lewis, i. 501. Townley v. Gibson, i. 132. V. Jones, i. 615. Townsend v. Wathen, i. 252. Tozer V. Child, i. 50, 51, ii. 99. V. Mashford, ii. 343. Tracy v. Open Stock Exchange, ii. 107, V. Veal, i. 56. Traherne v. Gardner, ii. 681. Treadwin v. Gt. East. Rail. Co., i. 725. Trelawney v. Coleman, ii. 509. Trent v. Hunt, i. 788, 811, 8l2, 831. Trent Nav. Co. v. Ward, i. 717. Tripp V. Thomas, ii. 387. Trismall v. Lovegrove, i. 532. Trower v. Chadwick, i. 267. Truscott V. Merchant Taylor's Co., L 177- Trust. Brit. Museum v. Finnis, i. 324. Tubb V. Good, i. 290. Tubervil v. Stamp, i. 20, 366, 368. Tuberville v. Savage, ii. 3. Tucker v. Newman, i. 301, 313. V. Tuipin, ii. 469. V. Wright, 1. 550. Tuff V. Warman, i. 42, 598, 609, 635. Tufton V. Harding, ii. 134. Tulk V. Metrop. Board of Works, i. 157 Tullay V. Reed, ii. 10. Tullidge V. Wade, ii. 55, 521, 644. TuUit V. Tullit, i. 511. Tunney v. Midland Rail. Co., i. 608. Tunnicliffe v. Moss, ii. 384. V. Tedd, ii. 47. Tunno v. Morris, ii. 105. Turberville v. Stampe, i. 20, 366, 368. Turner v. Ambler, ii. 68, 93. Y. Baynes, i. 408, 787. V. Cameron, i. 792. INDEX OF CASES. 827 Turner v. Deane, i. 681. V. Doe, i. 399. V. Felgate, ii, 144, 159, V. Ford, i. 547, 548, 562. V. Hortoii, ii. 663. V. Postmaster-General, ii. 190. V. Ringwood Highway Board, i. 328, 456- V. Spooner, i. 190, 201, 227. V. Winter, i. 83. V. Wright, i. 346. Turnley v. Macgregor, ii. 457. Turquand v. Marshall, i. 620. Turrill v. Crawley, i. 762. Tuson V. Evans, ii. 334. Tutton V. Darke, i. 791. Tutty V. Alewin, ii. 349. Two Ellens, The, i. 670. Twort V. Twort, i. 380. Twymah v. Knowles, i. 472, Twynam v. Porter, i. 682. Tyler v. Bennett, ii. 665. V. Leeds (Duke of), ii. 165. Tyne Improvement Commissioners v. Gen. Steam Nav. Co., i, 594. Tyringham's Case, i. 205. Tyson V. Smith, i. 156, 157. V. London (Mayor of), ii. 275. Udell V. Atherton, ii. 437, 553. Uhla, The, i. 602. Umphelby v. M'Lean, ii. 292. Underbill v. EUicombe, i. 65. Underwood v. Hewson, i. 570. V. Parks, ii. 388. Union Bank of Manchester, Ex parte, i. 532, 53-I- Cement and Brick Co., Re, i. 680. United Service Co., In re, i. 41, 6ig, 637. Unity Joint-Stock Bank Min. Asssocia- tion V. King, i. 433. Upman v. Elkan, i. 86, ii. 469. Valentine V. Cleugh, ii. 677. V Penny, i. 162. Vallance, Ex parte, i. 534. V. Savage, i, 113, ii. 531. Valpy V. Manley, ii. 166. V. Sanders, i. 527. Vanderberg v. Truax, i. 14, Vanderzee v. Willis, i. 679. Vane v. Lord Barnard, i. 346. Van Sandau v. Turner, ii. 104. Van Toll v. South-East. Rail. Co., i. 665, 735- Vaughan, Ex parte, ii. 218. V. Cork and Yough. Rail. Co., i. 609. V. Lewis, ii. 757. V. Menlove, i. 367, 369, 370, 374. V. Taff Vale Rail. Co., 1. 369, 374- Vaughton v. Bradshaw, ii. 47. Velasquez, The, i. 595. Veley v. Burder, ii. 697, 702. Venafia v. Johnson, ii. 64, 185. Veness, Ex parte, i. 529. Venezuela Rail. Co. v. Kisch, ii. 413, Vera v. Cawdor (Lord), i. 559. Vernon v. Keys, ii. 432. Verrall v. Robinson, i. 500, 552. Verry v. Watkins, ii. 522. Vicars v. Wilcocks, i. 12, ii. 352, 354, 384. Victor, The, i. 595. Villiers v. Mousley, ii. 305, 309. Vine v. Saunders, ii. 557. Viner v. Cadell, i. 533. V. Vaughan, i. 378. Violett v. Sympson, ii. 229. Virtue v. Bird, i. 40. Vivian v. Champion, ii. 535. Vivid, Thei., 598. Vizard, Re, i. 524. Vose V. Lane, and York. Rail. Co., L 272, 277, 605. Vowles v. Miller, i. 420. Voyce v. Voyce, i. 420. Waddell v. Waddell, ii.480. Wade V. Tatton, ii. 408. Wadhurst v. Damme, i. 481, 559. Wadsworth v. Bentley, ii. 593. Wain v. Bailey, i. 516. Wait V. Wait, ii. 510. Waite V. Garston Local Board, i. 64. V. North-East. Rail. Co., i. 6og. Wakefield v. Buccleugh (Duke of), i. 100, 159, 228. Wakeman v. Lindsey 1. 812. V. Robinson, i. 571, 632. 828 INDEX OF CASES. Wakeley v, Coolce, ii. 310. V. Froggatt, i. 433, ii. 603. V, Healey, ii. 379. Walker V. Birch, i. 677. V. Brewster, i, 250. V. Brit. Guarantee Ass., i. 642, 661. V. Evans, i. 296. V. Gann, ii. 710. V. Goe, i. 275, ii. 255. V. Jackson, i. 774. V. Milner, ii. 431. V. Olding, ii. 637. V. S. E. Rail., ii. 42, 43, 549. V. Ware, &c., Rail. Co., ii. 301. V. Willoughby, ii. 137. Wall V. Hinds, i. 360. V. London and S. W. Railway Co., ii. 6S0. V. McNamara, i. 53. Wallace, Re, ii. 104. V. Carroll, ii. 357. V. Jarman, ii. 415, 417. V. Woodgate, i. 6S5, 744. Waller v. Drakeford, i. 558. V. Holmes, i. 681. V. Soutli-East. Rail. Co., i. 608. Walley v. M'Connell, ii. 155. Wallingtou v. Wood, ii. 634. Wallis V. Harrison, i. 155, 453, ii. 532. V. L. and S. W. Rail., i. 743. Walmsley, Ex parte, ii. 732. V. Milne, i. 351, 357. Walsliara v. Stainton, ii. 64. Walshe v. Provan, i. 692. Walter v. Selfe, i. 234, 241, 242, 315. Walters v. Mace, ii. 378. V. Pfiel, i. 267. V. Webb, i. 400. Walton V. Brown, ii. 65i. V. Lavater, i. 87. V. Walton, ii. 486. Wandsworth Board v. Lond. and S. W. Rail Co., i. 316, 318, 476, ii. 687. Wanless v. N. E. Rail., i. 583. Wansbrough v. Maton, i. 355. JVanstead Local Board, &c., v. Hill, i. 61, 78, 242. Warburton v. Gt. West. Rail. Co., i. 608. V. Parke, i. 180, 181, 608. Warde, Ex parte, ii. 765. V. Lee, ii. 260, 266. V. Lowndes, ii. 744, 761, 764. V. Robins, i. 191, 193. V. Shew, i. 788. V. South-East. Rail. Co., ii. 761. V. Ward, i. 193, 197, 202, ii. 485, V. Weeks, i. 13, ii. 355, 364. V. Eyre, i. 511. V. Warde, i. 193, 197, 202, ii. 485. 497, 498. Warden v. Mourillyan, i. 737. Warden v. Bailey, ii. 552. Wardle v. Brocklehurst, i. 135, 207. Ware, In re, ii. 285. V. Regent's Canal Co., ii. 690. Waring v. Waring, ii. 480. Warne v. Chadwell, ii. 383. Warner v. Riddiford, ii. 13, 40, 54. Warr v. Jolly, ii. 330. Warren v. Warren, ii. 376. V. Webb, i. 429. Warrick v. Queen's Coll., i. 157, igi, 229, ii. 612. Warwick v. Foulkes, ii. 51, 388. Wason V. Walter, ii. 337, 339. Watbroke v. Griffith, i. 761. Waterer v. Freeman, i. 3, ii. 80. Waterhouse v. Jamieson, ii. 413.] V. Keen, ii. 291. Waterlow v. Bacon, i. 219, 228. Waterman v. Soper, i. 418, ii. 548. Waters v. Monarch, i. 562. V. Towers, i. 565. Watkin v. Hall, ii. 366, 367. Watkins, Ex parte, i. 537, ii. 711. V. Gt. North. Rail. Co., i. 437 ii. 277, 296. V. Lee, ii. 87. V. Reddin, i. 256, 320. Watling V. Oastler, i. 279. Watson V. Ambergate Rail. Co., i. 738, V. Bodell, ii. 147. V. Charlemont (Earl), ii. 499, V. Christie, ii. 56, 389, 648. V. Denton, ii. 461. V. Maclean, i. 517. V. Peache, i. 538. V. Poulson, ii. 398. V. Russell, i. 524, V. Waud, i. 783. INDEX OF CASES. 829 Watts, Ex parte, i. 536. V. Fraser, ii. 390. V. Kelson, i. 135, 207. V. Lucas, i. 294. Weall V. King, ii. 563. Weatherby v. Ross, i. 201, 227. Weatherston v. Hawkins, ii. 331. Weaver v. Bush, ii. 9. V. Ward, i. 8, 570. Webb's Case, i. 321. Webb, Jn re, i. 737. V. Bird, i. 179, 221. V. Cook, ii. 386. V. Fajrmaner, ii. 36. V. Fox, i. 554, 677. V. Paternoster, i. 480. V. Portland Manufact. Co., i. 16. Webber v. Gt. Western Rail. Co., i. 738. V. Sparkes, ii. 585. Webster's Case, ii. 413. Webster v. Watts, ii. 10, 23. V. Webster, ii. 493. Wednesbury Bd. of Health v. Stephen- son, ii. 676. Weekly v. Wildman, i. 164. Weeks v. Goode, i. 509, 674. V. Sparke, ii. 612. Weems v. Mathieson, i. 279, 604. Welch V. Nash, ii. 195, 217. Welcome v. Upton, i. 165. Weld V. Hornby, i. 319. Weldon v. Gould, i. 675. Welfare v. Brighton Rail., i. 36, 254, 633- Weller v. Toke, ii. 231. Wellesley v. Wellesley, i. 346, ii. 497. Wellock V. Constantine, i. 54. Wells V. Gurney, ii. 137. V. Head, i. 481, 559, 561. V. Ody, i. 221. V. Watling, i. 211. Welsh V. Rose, i. 790. Wenman v. Ash, ii. 311, 323, 375. Wentworth v. Bullen, ii. 80. West V. Baxendale, ii. 50. V. Blakeway, i. 361. V. Fraiicis, i. 76. V. L. & N. W. Rail., i. 711. V. Nibbs, i. 815,826. V. Skip, i. 532. T. Sraallwood, ii. 45, 234. West V. West, ii. SOvj. Riding Rail. Co. v. Wakefield Bd. of Health, i. 273, 627. Western Bank of Scotland v. Addie, ii. 412, 438, 454. Weston's Case, ii. 765. Weston V. Beeman, ii. 77, 85, 93. V. Dobniet, ii. 319. V. Sneyd, ii. 229, 712. Westwood V. Bell, i. 685. V. Cowne, i. 813, 841. Wettor V. Dunk, i. 253. Whaley v. Laing, i. 108, 114, 215, 661. Wharton v. Brook, ii. 342. y. Naylor, i. 796, ii. 163. Whatman v. Pearson, i. 48, ii. 293. Wheatley v. Patrick, i. 592. Wheeler v. Branscombe, i. 831, 832, V. Whiting, ii. 9, 23, 40. Wliistler v. Forster, i. 523. White's Case, i. 756, ii. 740. White V. Bailey, i. 399, 547. V. Bass, i. 148, 188, 189. V. Binstead, ii. 136, 165. V. Cohen, i. 120. V. Crisp, i. 263, 329. V. Gainer, i. 674. V. Garden, i. 521, 675. V. Gr. West. Rail. Co., i. 771. V. Humphrey, i. 662, 735. V. Hunt, i. 525. V. Morris, ii. 63, 158. V. Phillips, i. 263, 276. V. R. Ex. Ass. Co., i. 680. V. Spettigue, i. 56, 509, 519. V. Steele, ii. 258, 677, 697, 703, 708. Whitecomb v. Jacob, i. 541. Whitehead v. Bennet, i. 360. V. Greetham, i. 615. V. Proctor, ii. 1 10. V. Scott, ii. 611. V. Taylor, i. 830. Whitehouse's Case, ii. 413. Whitehouse v. Birm. Can. Co., ii. 243. V. Fell, ii. 601. V. Fellowes, i. 300, ii. 252, 274, 290. V. Wolverhampton Rail, i 144. Whitelegg v. Richards, ii. 106 830 INDEX OF CASES. Whiteley v. Adams, Whitelock v. Hutchinson, i. 162. Whiteman v. King, i. 210. Whitfield V. Bewit, i. 511. V. Brand, i. 540. V. S. E. Rail. Co., ii. 364, 550. V. Le Despenser (Lord), i. 31. Whitley v. Roberts, i. 789. Whitmore v. Black, i. 562. V. Greene, ii. 155. V. Humphries, i. 398. V. Whitmore, ii. 480, 510. Whitstable (Free Fishers of) v. Foreman, 1.409,410. V. Gann, i. 411. Whittaker v. Jackson, i. 418, 432. Whitlall V. Campbell, ii. 682. Whitten v. Fuller, i. 550. Whittington v. Boxall, i. 431. Whitworth v. Hall, ii. Si. V. Maden, i. 840. Wickham v. Hawker, i. 435. Wicks V. Fentham, ii. 93. V. Hunt, li. 6go. Wieler v. Schilizzi, ii. 432. Wififin V. Kincard, ii. 8, 432. Wigens v. Cook, ii. 671. Wiggett V. Fox, i. 607, 6og. Wiggins, Ex parte, i. 537. Wigmore v. Jay, i. 280. \\ilby V. Elstor., 1.11,11.342,343,371, 582. V. West. Corn. Rail. Co., i. 738. Wilcox V. Marshal], ii. 575. Wild V. Holt, i. 471. Wilde V. Gibson, ii. 405. V. Minsterley, i. 98. V. Sheridan, ii. 706. V. Waters, i. 342. Wilder v. Speer, f. 820. Wildes V. Russell, ii. 181, 735. Wiles V. Woodward, i. 558. Wilford V. Berkeley, ii. 507. Wilkes V. Broadbent, i. 129. V. Hung. Mark. Co., i. 57, 246. Wilk's Case, ii. 346, Wilkin V. Reed, ii. 630. Wilkins v. Bromhead, i. 539. Wilkinson v. Fairrie, i. 253. V. Haygarth, i. 423, 451, ii. 547- Wilkinson v. Kirby, i. 475, ii. 584. V. Proud, i. 100, 170. V. Verity, i. 408, ii. 6oa> V. Whalley, i. 552. Willans v. Taylor, ii. 65. Williams v. Adams, ii. 194. V. AUsup, i. 670. V. Archer, i. 703. V. Baily, ii. 479, 480. V. Banks, ii. 71. V. Blackwall, i. 288. V. Clough, i. 280, 631. V. Cranston, i. 766. V. Currie, i. 469, ii. 633. V. East India Co., ii. 449. V. Everett, i. 521. V. Eyton, i. 203. V. Fitzmaurice, i. 612, V. Gardiner, ii. 379, V. Gibbs, i. 614. V. Glenister, ii. 24. V. Golding, i. 267, 612. V. Groucott, i. 252. V. Gt. West. Rail. Co.,i. 740. V. Holmes, i. 796. V. James, i. 220. V. Jersey (Earl of), i. 316. V. Jones, i. 369, 626, 833, ii. ( V. Millington, ii. 531. V. Morland, i. 107. V. Morris, i. 452, 456. V. Mostyn, ii. 141, 164. V. Pott, i. 398, 400. V. Richards, i. 585. V. Roberts, i. 801. V. Smith, ii. 41, 84, 144, 156. V. Stiven, i. 786, 830. V. Stott, ii. 379. V. Wilcox, i. 222, 293, ii. 585. V. Williams, i. 79, ii. 479, 485. Williamson v. Allison, ii. 414, 415. Willingale v. Maitland, i. 158, 163. Willis V. Bernard, ii. 509. Willoughby v. Backhouse, i. 836, VYilloughby v. Horridge, i. 747, V. Marshall, i. 806. Wills V. Maccarmick, ii. 99. V. Wells, i. 562. Wilson's (Carus) Case, ii. 181. Wilson, Ex parte, i. 525, 532. V. Anderton, i. 504. INDEX OF CASES. 831 Wilson V. Barker, il. 554. V. Brett, L 659. V. Fuller, ii. 453. V. Halifax (Mayor of), ii. 255, 293. V. Lane, and York. Rail. Co., i. 774, ii. 637. V. Merry, i. 607. V. Newberry, i. III. V. Newport Dock Co., i. 636. V. Peto, i. 214, 300, 623. V. Rankin, ii. 437. V. Robinson, ii. 338. V. Stanley, i. 180, 195. V. Towend, i. 315. V. Tucker, i. 616. V. Tummon, ii. 155, 156, 554. V. Willes, i. I2g, 162. Wilsons, In re, i. 525, 822. Wilton V. Girdlestone, i. 499. Wiltshear v. Cottrell, i. 355. Wiltshire v. Sidford, i. 418. Wiltshire Iron Co. v. Gt. West. Rwy., i. 669. Windham v. Clere, ii. 186. Windover v. Smith, i. 73. Wingate v. Waite, ii. 103. Winship v. Hudspeth, i. 180. Winsmore v. Greenbank, i. 4, 19, 58, 300, ii. 511, 524. Winter v. Bartholomew, ii. 133. V. Brockwell, i. 132, 199, 219. V. Ilenn, ii. 508. Winterbottom v. Derby (Lord), i. 191, 195, 298. V. Wright, i. 27, 604, ii. 528. Winterbum v. Brooks, ii. 49. Wintle V. Brist. and S. W. Rail. Co., ii. 687. V. Freeman, ii. 145. Wise V. Gt. West. Rail. Co., i. 600. V. Metcalfe, i. 348, ii. 560. Witham, Ex parte, i. 542. Withsm Nav. Co. v. Padley, ii. 45. Wither v. Dean, &c., of Winchester, i. 386. Withers v. Henley, ii. i8. V. North Kent Rail. Co., i. 272. V. Parker, ii. 140. Witte V. Hague, i. 30a. Wobum Abbey, The, 1. 595. Wolf V. Summers, i. 744. Wolton V. Gavin, ii. 28. Wontner v. Shairp, ii. 409. Wood V. Bell, i. 565. V. Boosey, i. 72, 73. V. Brown, ii. 365. V. Chart, i. 69. V. Clarke, i. 793, 796. V. Gunstone, ii. 358. V. Hewett, i. 355. V. Lane, ii. 14. V. Leadbitter, i. 131, 147, 218. V. Morewood, i. 471, 559. V. Nunn, i. 802. V. Riley, ii. 667. V. Sutcliffe, i. 315. V. Veal, i. 195, 326. Wood V. Waud, i. 103, n8, 184. V. Wedgewood, i. 453. V. Zimner, i. 80. Woodgate v. Knatchbull, ii. 146, 154, 161. V. Naylor, ii. 487. Woodger v. Gt. West. Rail. Co., i. 775. Woodhall V. Voight, ii. 681. Woodhouse v. Murray, i. 527. Woodin V. Burford, ii. 453. Wooding V. Oxley, ii. 23. Woodley v. Coventiy, i. 503. Woods V. Finnis, ii. 118, 140, 141. V. Russell, i. 536. Woodward v. Gyles, i. 379. V. Lander, Woodyer v. Hadden, i. 325. Wookey v. Pole, i. 680. Wooldridge, Ex parte, ii. 571. Woolen V. Wright, ii. 155, 554. Woolley V. Clark, ii. 144. V. North London Rail., ii. 588. V. Scovell, i. 585. Woolnoth V. Meadows, ii. 360. Wore. Co. Bank v. Dorch. and Milt, Bank, i. 506. Wordsworth v. Harley, ii. 289. Workman v. Gt. North. Rail. Co., ii. 635 Wormer v. Biggs, i. 704, 816. Wormwell v. Hailstone, ii. 552. Worrall Waterworks Co. v. Lloyd, it 250. Worsley v. Stuart, i. 378. 832 INDEX OF CASES. Worth V. Gilling, i. 312, ii. 629. V. Terrington, ii. 48, 52. Worthington v. Gimson, i. 207. V. Hulton, ii. 744, 746. Wotherspoon v. Currie, ii. 469. Wray v. Toke, ii. 188, 206. Wren v. Weild. i. 49, ii. 360, 362, 374. "Wright's Case, ii. 413. Wright V. Child, ii. 119. V. Clements, ii. 365. V. Court, ii. 6, 17, 225. V. Crookes, ii. 452, 459. V. Goodlake, i. 69. V. Hitchcock, i. 81, 86. V. Howard, i. 107. V. Lainson, ii. 158. V. Leonard, i. 58, ii. 442, 556. V. Pearson, i. 45. V. Snell, i. 743. V. Tallis, i. 70. V. Williams, i. 183, 195. V. Woodgate, ii. 333. Wrightup V. Chamberlain, ii, 641. V. Greenacre, ii. 146, 157. Wyatt V. Gore, ii. 371,373, 389. V. Gt. West. Rail. Co., i. 278, 610. V. Harrison, i. 97. f V. White, ii. 76, 77, 177. Wyer v. Dorch., &c.. Bank, i. 504. Wyld V. Pickford, i. 725, 726. Wylde V. Radford, i. 679. Wylie V. Birch, ii. 145. Wynne v. Tyrwhit, ii. 617. Wynstanley v. Lee, i. 121, 226. Wryley Canal Co. v. Bradley, i, 144. Yarborough v. Bank of England, ii. 550. Yard y. Ford, i. 85. Yarmouth (Great), Mayor of. v Groom i. 25. Yates V. Dunster, i. 377. v. Jack, i. igo, 227. V. Palmer, ii. 701, 711. V. Whyte, i. 371, 638, ii. 594, 653. Yearsley v. Heane, ii. 139. Yeatman v. Yeatman, ii. 484, 486. Yellowly v. Gower, i. 336. Yeo V. Tatem, ii. 598. Yeoman v. Ellison, i. 784. York V. Grindstone, i. 760. York (Mayor of) v. Pilkington, i. 229. York & N. Mid. Rail. Co. v. Milner, ii, 748. V. The Queen, ii. 722. Yorke v. Grenaugh, i. 673, 762. Young V. Cooper, i. 552. V. Davis, i. 31, 209, 250, 255, V. Edwards, i. 60, 63. Young V. Fletcher, i. 527. V. Grattridge, i. 287. V. Grote, i. 36. V. Hichens, i. 23, 515. V. Higgon, ii. 36, 233. V. Hope, i. 533. V. Lambert, i. 687. V. Macrae, ii. 341. V. Matthews, i. 520. V. Spencer, i. 340. Yrisarri v. Clement, ii. 310. Zetland (Earl of) v. Glover Incorp. at Perth, i. 168. Zinck V. Walker, i. 539. Zouch V. Willingale, i. 782, 788. Zunz V. S. E. Rail., i. 731, 738. Zychlinski v. Maltby, ii. 68a. INDEX TO THE TEXT. [TAe references are to the paragraphs.] Abatement. See Nuisance. Absence, efifect of, under Statute of Limitations, 402. Accident. See Assault. injuries caused by, when actionable, g. whether a person is liable for the effects of, 228. non-liability for, unless caused by negligence, 544, 545. Accord and satisfaction. See Plea — Injunction. Accountant, negligence of, 1302. &ction. See Statute of Limitations. can not be brought more than once for the same wrong, 1355. brought against the wrong person by mistake, not a tort, 12. several, in respect of same cause, can not be brought in court of coOrdiliate jurisdiction, 1354, 1355. secus — if one action is in inferior or foreign, the other in a superior court or court in this country, 1354. or where one action is in personam, and the other in rem, 1354, 1358. different causes of, when may be joined in the same suit, 1337. pleadings in. See Declaration — Damage — Pleas unfounded. See Malice. Act of Parliament. See Statute. Administrator. See Executor. when may sue for injuries to intestate's personal property, 1298. Admiralty Court, prohibition to, 1453. Admissions. See Malicious Prosecution. of liability by a party to a cause, 1380. of defendant in action for conversion, 535. of under-sheriff or bailiffs, when evidence against the sheriff, 95a. of occupancy in actions for nuisances, 289, 290. of knowledge of ferocity of animal kept, 2go. to prove malice, 855. are evidence, although they relate to a deed, lease, &c., not produced, 78a. Adulteration, See Bread. Adultery. See Husband — Wife. damages recoverable for, 1268, 1269. application of, by order of Court of Divorce, 1270. n-— S3 834 INDEX TO THE TEXT' \Ther.M,«c,sar, Advocate, statements of, in conduct of case, are privileged, 1133. Agent. See Broker — Authority — Principal — Bailiff. receipt of rent by, on behalf of person wrongfully claiming land, 389. occupation of house by, rent free, for twenty years, does n&t confer title, 391. lien of, 614. Agistment. See Cattle. lien for, fci I , Air. See Li';i£T — Mill. grant of right of, 127, I2g. Alien, when entitled to copyright, 60. security for costs by, 1439. Alimony. See Wife. Ambassador, can not be sued, 1342. property of, exempt from distress, 724. Amendment. See Plaintiffs. of variances between the declaration and evidence, 1379. of all defects and errors in civil causes to determine the real question in con- troversy between the parties, 1379, instances of, in actions of libel, for false representation, trespass to land, or for keeping a ferocious dog, 1379. 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, 1379- of variance in action of slander, 1153. of nonjoinder or misjoinder of plaintiffs before trial, 1322. at trial, 1323. of nonjoinder of plaintiffs after notice or plea in abatement, 1334. of misjoinder of defendants, 1325. Amends, tender of, under statute, 828, 1078. tender of, by justices, 1028. within what time to be made, 1329. by companies, 1074. plea of tender of, 1081, Anchorage. See Port. Animals. See Fer^ Naturae. distinction between, '\{ ferce, and if mansueta^natura, 261. injuries from keeping ferocious, 261-265. injuries from driving ferocious, along a highway, 265. injuries by ferocious, may be an act of trespass against person who loosed them, 466. pegligence n«ed not be proved in actions for injuries from ferocious, 290. declarations for jcjuries by ferocious, 285. liability for kegping, though not negligently, 285. effect of plea of not guilty in actions for keeping ferocious, 286. evidence in actions for keeping ferocious, 290. damages in actions for injuries from ferocious, 292. Apothecary, UfSgUgence, 1289. Appeal. See JrsxicES. costs on, 1426. Apprentice. See Master. f inducing to leave hi$ master, is actionable, 127a. tothparagraj,hs:\ INDEX TO THE TEXT. 835 Arbitrator. See Architect. not liable for mistakes or carelessness in conducting arbitration, without malice or corruption, 883. neglect by, to hear both parties, or undue bias, will invalidate award, 883. power of, under Lands Clauses Act, 1056, 1059, 1060. authority of, determined, if time for making award is not duly enlarged, 1336. power of, over costs, 1414- may be examined in action on award in compensation case, 1062. mandamus to, to assess statutory compensation for injuries caused by construc- tion of railway, 1499. Archbishop. See Ecclesiastical Dilapidations. Architect, employed to determine questions between builder and employer, is not liable for errors of judgment 883. but may be sued for neglect to perform his functions at all, 883. fraudulently inducing, to withhold certificate of completion of works, is action- able, IZ14. Area. See Highway — Shaft. liability for dangerous state of, 232. Arrest. See Constable — Costs — Imprisonment — Sheriff. what constitutes, 843, 871. on Sunday Illegal, lOll. on suspicion of felony, what is reasonable and probable cause for, 84I. for felony, when justifiable without warrant in house of another, 432. by person other than constable, when justifiable, 803, 820. for misdemeanor, 804. of wrong person, 805. for malicious injuries to property, 807, 822. of persons committing indictable offense at night, 808. by servants of railway companies, 817, 832. of persons as deserters, 818. of dangerous lunatics, 819. for preservation of the peace, 809, 8ir. breach of the peace, what amounts to, 81 1. of persons disturbing divine service, 812. of vagrnnts and persons committing acts of public indecency, 813. under Merchant Shipping Act, 814. of principal by his bail, 815. for offenses within metropolis, 816. of persons sus]3ected of being in possession of government stores. for a disturbance and refusal to leave a house or shop, 841. of soldiers, &c.. by their superior officers, 841. by military or naval officers, 1307. by persons intending to act in pursuance of an Act of Parliament, 82a. on mesne process is abolished, 870. when allowable in an action, 870. Diialicious. when actionable, 870. _ by sheriff of person privileged from, as a witness, is not actionable, 870. who to be defendants in actions for unlawful, 872. attorney and client, 872. plea of not guilty in actions for. 875. evidence in actions for, for plaintiff, 877, 878. _ t, a « if caused by plaintifl's own disobedience of summons, not actionable, 878, Artificer. See Workman. Assatilt. See Costs. wii3.t constitutes 707 in self-defense or defense of property, or in obedience to legal warrant, or the result of mere accident, is justifiable, 792, 793, 843. 836 INDEX TO THE TEXT. [The reftn^u, »n Assault — Continued. in defense of person or property, 793, 797, 844. in resistance of forcible entry or to prevent seizure of chattels, 794. caused by inevitable accident is not actionable, 835. resulting from acts of negligence, 788. by handcuffing unconvicted prisoners, 789. distinction between, and battery, 790. mayhem and wounding, 791, 797. in preservation of the public peace, 796, 841. by license of person assaulted is not actionable, 835. by whipping a horse and causing him to run over a person, 12, on persons wrongfully in possession of land, 384. by servants of corporation is actionable, 1304. liability of corporation to action for, 832. malice not a necessary ingredient of, 40. who to be plaintiffs in action for, 830. declarations for, 834. plea of son assault demesne to action of, and evidence thereunder, 844. pleas of justification in action of, 838. in defense of children, wife, servants, or friends, is justifiable, 839. in moderate correction by parents of children, schoolmasters of pupils, and masters of ships, of seamen, &c., is justifiable, 840. evidence of, 842. damages for, 845, 848. where assault by more than one, 846. prospective, 847. Assignees. See Lessees, of patent. See Patent. Assignment, of chose in action, notice of, 512. Attorney, negligence of, 570, 589, 1361. retainer of, ceases on recovery of judgment, 569. has no implied authority to postpone execution, 569. is not liable for trespasses committed by sheriff in execution of writ, unless he interferes, 937. or the process is set aside for irregularity, 937. when liable for unlawful arrest, as well as his client, 872. liability of, for false imprisonment, if process has been set aside as irregulai 831. otherwise, if for error, 831. or if judgment be set aside in the exercise of equitable jurisdiction, 831 fraud of, in forging deeds, his employer liable, 1197. lien of, on alimony money, 1237. lien of, 618. charge on property recovered by, 618. Attorney-generail, may apply for injunction against obstruction of highway, 313. injunction against public nuisances by, 295, 296. Avowry. See Replevin. pleas in bar of, 769. Auctioneer, duty of, to disclose facts affecting the title to the property he sells, 1205. sale by, only conveys such title as the auctioneer has, 1 190. may sue person, who orders him to sell goods which do not belong to him, 1213 may sue for conversion of chattels intrusted to him to sell, but not for conver- sion of fixtures, 524. Uen of 6ii. Uth paragraphs.] INDEX TO THE TEXT. 83? Auditor, report of, to company, reflecting on the conduct of the manager, is a privileged communication, and may be published to the shareholders, 1091. Author. See Manuscript — Copyright. rights of, at common law, 60. Authority. See False Representation — Leave and License. false representation of, by vendors, agents, &c., vi^hen actionable, 1194, II98. abuse of. See Military Officer — Naval Officer. abuse of, is actionable, 43. abuse of, renders a person a trespasser, 376. abuse of, on sale of goods, 52. Ball. See Arrest. Bailee. See Bailor — Common Carrier — Damages — Injunction — ^Jus tertii — Lien. can not dispute the title of his bailor, 497. of goods for sale can give a valid title, 494. negligence of, in keeping, using, or selling the article bailed, 595, et seq. not liable for negligence, if act of bailor has conduced to the loss, 602. or bailor takes them under his own charge, 607. may impose conditions upon his receipt of goods, but they must be reasonable ones, 606, 623. liability of, for loss of goods bailed, 642. if carried gratuitously, 607. if for hire, 607. may set Vi]i jus tertii against bailor, only upon his (bailor's) authority, or if the bailment was made by a wrongdoer, or thief, or with intent to defraud, 643., liability of, for parting with goods bailed, 643. unless he has parted with them before the plaintiffs' title accrued, 644. conversion of goods by, 475. has no better title than his bailor 475. liability of, for delivering to one person property bailed to him by two or more, 630, 632. when liable in case of theft, 599, 6or, 607. sale of goods by, with knowledge of real owner, I, 537- determination of bailment by, 524. determines the bailment by parting with the goods bailed, 631. is entitled to authority from bailor before parting with goods bailed to a third person, 631. may sue for damage to or loss to goods in his possession, 631, 692. is not liable if he deliver property to his immediate bailor, although the property bailed may belong to more than one person, 632. may sue for loss, &c., of goods bailed, though he has only a special property in them, 692, 1292. may sue for conversion of goods, though he has never had possession of them, 533- may sue for conversion of chattels by wrongdoers, or in some cases by owner, 524- when goods in possession of, pass to trustee on his bankruptcy, 515, 510. is not the true owner of goods within reputed ownership clause of Bankruptcy Act, 51a. can not get up title to goods deposited in furtherance of fraud, 496. remedy for, by interpleader, &c., where goods, the title to which is doubtful, are demanded from him, 475. power to compel rival claimants to property in his possession to interplead, 633. declarations against, for loss or damage to goods bailed, 635. plea of not guilty, 636. remedy for, in equity, where deposit made in furtherance of fraud, 476. 838 INDEX TO THE TEXT. [Th^ rtfirtnc^s an Bailiff. See Landlord — Sheriff. is liable for making an illegal distress, and has remedy over against the landi lord, 746. may justify distress in name of landlord, though he distrains in his own name, 710, 741. is liable for refusing to receive rent and expenses after making a distress, 738. Bailiff of County Court, is liable to the same extent in the execution of writs as the sheriff, 925. See Sheriff. duties of, now transferred to registrar, 925. duty of, to satisfy the landlord's claim for rent, by distraining on goods seized under execution, 927. can not be sued without the clerk of the court being joined, and on proof of the warrant is entitled to judgment, 934. ' not liable as trespasser by reason of any irregularity or informality of warrant under which he acts, but is for any special damage from any irregularity in his mode of executing it, 934, 935. protection of, by interpleader, where there are rival claimants to property seized, 935. Bailment, different kinds of, 595, et seq. distinction between, and sale, 595, 11. Bailor. See Bailee — Injunction. may sue for damage caused by negligence to chattel bailed, 577. when may sue for conversion of, or injury to, property bailed, 524. may sue wrongdoer for detention, &c., of, or injury to, goods bailed, 631. may sue bailee if he parts with the goods, 631. duty of, to declare the value and nature of goods to which the Carriers Act applies, 659. liability of, for not disclosing dangerous or very valuable nature of goods bailed, 32, 597, 631, 654, 1206. can not replevy goods, but must prove his title in action of trespass or for their detention, 754. B> ir, ..onviction of, for baking rolls on Sunday, 982. BaL- on, . fent or descent of, when a nuisance, 225. Bank See Public Officer. ai. -.imption of name of, whether actionable, 1202. Bankei, negligence or neglect of duty by, 573. liaUli'ity of, for loss of box left in his custody, 573, 597. refusnl by, to cash his customer's draft, when a tort, 17. liable /or paying forged cheque, 34. liable ixnly to the person who deposits the money, although the right to it be- longi- to several, 633. lien of, 017. liability -ti, for delivering to one property deposited with him by two or more, 630. Bankrupt. Ste Bankruptcy — Liquidation — Trustee in Bankruptcy. title to property of, passes to trustee, 502. but lea^uKolds or any onerous property may be disclaimed by trustee, 502. contracts or dealings with, without notice of bankruptcy, are valid, 503. transfer of property by, when an act of bankruptcy, 505. petition of, for liquidation, is an act of bankruptcy, 505. execution levied on property of, when an act of bankruptcy, 506. ; goods in reputed ownership of, when they pass to trustee in bankruptcy or not, 508. 519- to ttu paragraphs:], INDEX TO THE TEXT. 839 Bankrupt — Continued. goods in possession of, as trustee, do not pass to trustee in bankruptcy, 519, goods in " apparent possession " of, within Bills of Sale Act, 520. may sue for injuries to land in his own occupation, unless the trustees take the lease, 1300. remains liable for torts committed prior to or during the bankruptcy, unless judgment has been given, 1320. arrest of, in certain cases, 1320. property of, fraudulently assigned before bankruptcy, injunction to restrain dealings with, 1446. peer, can not sit or vote in House of Lords, 917, n. Bankruptcy. See Notice. effect of, on proceedings in an action, 1326. on action commenced by bankrupt, 1359. on power to distrain, 706. malicious proceedings in, when actionable, 867. evidence of adjudication of, or other proceedings in, 534. judges in, in the country, 641. Bank manager. See Banker. Bank note. See Bill. Barge, owner of, is a common carrier, 650. and liable as such, 653. Barrister. See Advocate. not liable for negligence, unless malicious or fraudulent, 57c. Bathing. See Sea-shore — Indecency. indecent, is a public nuisance, 297. by-laws for the suppression of indecent, 55. right of, at common law, 55. Baths, negligence in management of, 251. Battery. See Assault. Bawdy-house, keeping, is a public nuisance, 297. what is " keeping " of, 247, u. Beach. See Sea-shore. Bears. See Fer^e Nature. BeUs, ringing of, may be a nuisance, 295. Bigamy, committal of, is actionable, 48. Bill of lading, title by, 500. Bill of peace, to ascertain rights where the persons asserting or contesting it are numeroai, 216. between lords of manors and tenants of manors, whether freeholders or copy- holders, 216. does not lie to ascertain public rights, e. g., a public right of way, 2l5. Bill of sale, title by, 483 n., 499, 513. priority as between two holders of, 483 n. necessity for registration of, 483 n., 513 n., 520. 840 INDEX TO THE TEXT, \Th,r.f,rencaar, Bills, title to, 500. when paid off, 490. conversion of, 478, 479. false assumption to accept by procuration is actionable, 1211, 1218. damages in action for conversion of, 540. Bills of sale act,. vifhen goods are in " apparent possession " of bankrupt within meaning of, 52a goods in " the apparent possession " of the assignors within meaning of, 483 n. Birmingham. See Smoke. Bishop. See Ecclesiastical Dilapidations. liable for neglecting to perform the duties of his office, 30. injunction against, to prevent waste, 371. Board of health, must be sued in the name of their clerk if the statute so requires, 1079, liabilities of, as surveyor of highway, 1044. not liable personally for any injury committed in the execution of Public Health Act, 1045. mandamus to, to make compensation, 1500. Board of trade. See Port — SeA-shore. inquiry by, in cases of collisions of ships causing death or personal injury, 576^ Boats. See Canal. Bond. See Securities. obligee entitled to possession of, though money paid, 490. Books. See Copyright — Printer. exportation or sale of, if protected by copyright, 60. Boundary. See Fences. Boundary-Tiralls. See Fences, property in, 415. Brawling. See Church. Bread, adulteration of, is a public nuisance, 297. Brewhouse, is a nuisance, 217. Brick-earth, unlimited claim of, inalien solo, is bad, 115. Brick-kiln, when a nuisance, 217, 220. illegality of, adjoining highway, 230. Bricks. See Brick-earth — Brick-kiln — Custom. right of lessees to make or not, 325, 334. right of tenant for life with regard to, 332. injunction against burning, 293. Bridge, obligation to repair ratione tenurce, l88. Brokers. See Bailiff. negligence of, in purchase of goods, ligS. lien of, 609, 614, 615, 625. Brook. See River. Builder. See Architect — Contractor, negligence of, in erecting house, 569. i0t!utaragraths:\ INDEX TO THE TEXT. 84I Building. See House — Negligence — Support. pulling down or dismantling, is waste, 319. fire in, caused by negligence, is waste, 321. right to support of land weighted with, 84, 85. rights of person who has erected on another's land without opposition, 213. ruinous, adjoining highway, is a public nuisance, 297. shoving up or removal of ruinous, in London, 266, 268, 272. Bull. See Animals. Burial. See Churchyard. Acts of Parliament for regulating, 266. Bushes, property in, is in tenant, 413. Busts. See Sculpture. By-laws, under a statute must strictly follow the statute under which they are made, 53, 55. imposing penalties for suppression of torts are cumulative upon remedy at com- mon law, 55, 56. as to indecent bathing, 55. for the suppression of nuisances, 55, 278. for the regulation of markets, 57, n. in restraint of trade when valid, 57. of municipal corporations, 54, 55. upon whom binding, 36. by public commissioners, local boards, and public companies, 56. all restraints imposed by, are illegal, unless under statutable authority, 56. of railway companies, must be hung up at every station or wharf, 986. may be partly valid, partly not, 59. no power to apprehend for breach of, unless given by statute, 56. summary convictions under, 54. convictions for breaking, 9S6. Cabman, is not a common carrier, 650. Calls. See Mandamus. Canal. See Canal Company — Fixtures — Water. injuries from negligent management of, 251. injuries from negligent construction of works connected with, 283. right to soil of towing paths of, 412. license to use boats upon, 132. right to use of pleasure boats upon, 96. right of riparian proprietor to use of water of, 96. as to mines under or adjacent to, 124. duty of, to afford equal facilities of carriage to all, 652. are liable for penning back polluted water, though they may be authorised by statute to pen back the water so long as it is pure, 1040. hot liable for leakage of water, without negligence, 1040. bound to use every precaution where highway crosses canal by a swing bridge, 1041. duty of, to take all reasonable precautions where canal crosses a highway, 251, if canal is in possession of lessee, 251. Vifhen bound to fence off canal from highway, 251. power to make " reasonable" conditions as to receiving and delivering animals or goods, 664, 666. special contract with, for carriage under the Canal Traffic Act, must be signed, 665. and the signature fairly obtained, 699. surplus water of used by another company, 163. summary proceedings against, for contravening the Canal Traffic Act, 691. 842 INDEX TO THE TEXT. [The nfermces an Oanon. See Eccleuiastical Dilapidations. Captain. See Master of Ship — Shipmaster. Carpenter, negligence of, in execution of work, 569. Carriage. See Coach. injuries from unskillful or reckless management of, 34, 36. Carrier. See Common Carrier — Bailee — Railway Company. does not warrant the absolute safety of goods carried, 607. unless a common carrier, 584. duty of, to use due care, whether paid for carriage or not, 1288. does not warrant the safety of passengers carried, but engages to use due cat9» 584- negligence of, 545, 549. of goods, though not a common carrier, how far liable for negligence or loss of the goods, 607. who to be plaintiffs in actions against, 692. when the consignor and when the consignee, 692. liability of, for negligence to servant, though his master pay the fare, 69a who to be defendants in actions against, 693. carrier or his servant, 693. lien of, 6og, 613. Carriers #ct, articles to which it applies, 656, 661. only applies to carriers by land^ 659, does not apply where goods carried under a special contract, 663. Casts. See Sculpture. Cattle. See Animals — Sheep. right of pasturage for, is a profit A. prendre, 1 14. right to wash or water, on another's land, 113. right to water or wash, claimable by custom, 133. trespasses by, 377, 378. straying on highway or turnpike road, 422, n. right of passage along highway, but not to remain, 244. lying in highway, 270, n. straying from highway, when distrainable as trespassing, 379. injuries to, while trespassing, 260. injuries to, from getting on a railway through gates at a level crossing, 248. injuries to, from falling down unguarded wells and shafts, &c., 228. pursuit of, on another's land, when justifiable, 376. injuries from the escape of, though without negligence, 95. injuries to, from eating poisonous clippings of boundary fence, 95. by dogs, 35. from non-repair of boundary or railway fences, 244. trespass by driving, or striking, 466. by dogs, in pursuit of, 466. negligence in delivery of, by railway company, 244. liability of agisters for negligence in the care of, 604. negligence by sending small boys in charge of, 259. sale, or exposure for sale, or otherwise, of diseased, when unlawful, 6, 7, 35. damage caused by the escape of diseased, 459. injuries from cutting up diseased, 254. injuries from negligent management of, if diseased, 35. importation of, from abroad, 7. impounded, must be fed, 735. slaughter of, whether a nuisance, 219, n. . Cattle-gates, right of, 142. fothtpara^apks.-\ INDEX TO THE TEXT. 843 Cellar. See Area. injuries from negligently leaving flap-door of, unsecured, 34. Certificate. See Architect — Suiiveyor — Costs. of under-sheriff for costs, 1409, 1411, 1415. of piobable cause for seizure of ship or goods under Customs Acts, 543. Certificated conveyancer, lien of, 6ig. Certiorari, lies to remove proceedings of justices and all inferior courts who are acting without jurisdiction, or are disqualified to adjudicate by interest, although the writ is expressly taken away by statute, 1005, 1008. to remove and quash proceedings of inferior court acting without jurisdiction, or to remove proceedings in which the Crown is interested, 892. although the writ is expressly taken away by statute, 892. right of Crown to remove cases by, although the writ is expressly taken away by statute, 1004, 1008. lies to remove judicial, not ministerial acts, 1008. to quash convictions, orders, &c., of justices, made without jurisdiction, 966 1469, 1471. although right of appeal exists, 1000. or writ expressly taken away by statute, 1479. to remove inquisition before sheriff in compensation case, 1064, 1065, 1067. to remove actions of replevin from county to superior court, 755. to remove causes from county court, 1472. although power of appeal exists, 1473. to remove cause where inferior court has jurisdiction, when to be applied for 1468. where it has not, may be applied for after judgment and execution, 1469. 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, 1469. limitation of time for issuing, 1470. ground on which writ may be applied for, 1471. when grantable debito jiistitia, 1472. application for, may be made on alifidavits, 1009. amendment of orders, &c., of justices on return to, loio. proceedings on application for, affidavits, notice, &c., 1475. effect of, in staying proceedings in court below, 1477. quashing of, where it has improvidently issued, Slc, procedendo, 1480. costs on, 1429. is available in equity, 892. Cesspool. See Sewer. is a nuisance, 218. Cesttii que trust. See Parties to Actions — Trustee. can not sue for injuries to land, 97. not a tenant at will to his trustee within the Statute of Limitations, 393. Chancel, title to, is in rector, though possession is in incumbent, 405. obligation of rector to repair, 337. Character, evidence of, when admissible in actions for a malicious prosecution, 881, Charts. See Maps. Chastity, reflection upon, when actionable, 1087, 1117, 1124. Chattels, lost, are property of finder against every one but real owner, 466. conversion of, 467, et s-q. See Conversion. 844 INDEX TO THE TEXT. \The nfermce, ar. Chattels — Continued. on land of another, when may be retaken, 375, 376, 378. sale of, without authority, is actionable, 34. Chattels real. See Leases. Cheque. See Banker — Bills. Children. See Infant — Negligence. cruelty to, may be cruelty to wife, 1252. father entitled to custody of, at common law, 1253, 1254. subject, however, to the controlling power of the Court of Chancery in case of his misconduct, 1256, 1258. and of the Divorce Court, in certain case.":, 1 25 1, order by Divorce Court respecting custody of, 1251, 1252. guardians of, are entitled to custody of, 1254, 1258. right of access to, by mother, 1259. custody of, mother entitled to, on death, or transportation, of father, 1260. obligation of parents to provide for, 1261. injuries to, or seduction of, causing loss of service, is actionable by parent, 1274. abduction of, a misdemeanor, 1287. Chimney, easement of using, 213. Choses in action are not " goods or chattels " within reputed ownership clause of Bankruptcy Act, 509. notice of assignment of, 512, n. Church. See Pew — Sexton. title to, is in rector, but possession in incumbent, 405. title to pews in, 417. private chapel annexed to, may be the property of a private person, 405. right to ring bells of, 405, 405, n. brawling in, by persons in holy orders, 1459, 1459, "• disturbance in, a misdemeanor, 812. Church rate, all compulsory proceedings for enforcement of, abolished, 984. Churchwarden, right of access of, to church, 405. may not remove bones from churchyard without faculty, 405. or remove ornaments illegally in church, without sanction of ordinary, 405. right of, to communion plate, in case of its conversion by rector, 405. can not dispossess person in possession of pew, &c., without notice, 417. election of, may be tested by mandamus, 1493. mandamus to, to allow inspection of parish accounts, 1504. Churchyard. See Tombstones. freehold of, is in rector, though closed under order in council, but possession in incumbent, 15, 405. if taken compulsorily under an Act of Parliament, 405. removal of bones, &c., from, without faculty, is unlawful, 405. Chymist, negligence of, in compounding hair-wash, 569. Cistern, injuries from bursting or leakage of, to lower stories of house, 95. Clergyman. See Incumbent — Rector — Libkl — Slander. liable for refusing to perform the duties of his oflBce, 30. can not be arrested while performing divine service, 914. Clark. See County Court — Court of Record. to the paragraphs:\ INDEX TO THE TEXT. 845 Clerk of Magistrates has not a freehold office, 1490. duty of, to draw up minute of conviction or order, Q87. Clerk of Poor Law Guardians has not a freehold office, 1490. Clerk of the Peace, duties annexed to office of, 1^89, n. may be dismissed for misdemeaning himself in his office, 968. report by, to q[uarter sessions, is a privileged communication, 1094. Client. See Plaintiff. Cloak-room. See Railway Company. Clockmaker, negligence of, in execution of work, 569. Clothes, right to hang and dry, on another's land, 113. Coach. See Common Carrier. accidents to, from overturning, &c., 545, 548. negligence in management of, or carriages, 548, 553. injuries from negligently or recklessly driving, 583. overturning, isprimd facie evidence of negligence, 545. hirer or borrower of, when liable for negligence in driving, 549, 551. remedy for passenger by, in cases of collision, when both drivers are in fault 553- injuries to hired, when chargeable to owner, when to hirer, 597. proprietor of, is a common carrier, 650. lien of owner of, on passengers' luggage, 676. Coachmaker, lien of, 613. Coals. See Custom — Highway — Minerals — Mines. giant of, includes right to go on land and erect engines, &c., Tig. grant ol all, passes the fee, 131. reseiTfition of, in a conveyance of land, 116. license to get and carry away, 131. right to make way for the passage of, 121. carriage of, along highway, when illegal, 308. Coffee House, keeper of, not an innkeeper, 683. College, mandamus to warden of, 1496. Colliery, statutory regulations for management, ventilation, &c., of, 564, 564, n. Collision. See Coach — Ships. Colony. See Governor of Colony. Commissioners. See Mandamus. liability of, for negligence or misconduct in carrying out powers given by stat- ute, 1043, 1306. unless they entrust the performance of the work to independent cont-actors, 1043. liability of, for the creation of unnecessary nuisances in c.^rrying out works, 1043. in occupation of works for which they receive toll, &c., are bound to maintain the property, so as not to be dangerous to those who use it, 1043. unless they have demised the works to a lessee, or the duty of repairing is not absolute, &c,, 1043. 846 INDEX TO THE TEXT. IThe references au Commissioners — continued. right of to indemnify themselves for expenses incurred in defending proceed- ings against them, 1046. except in case of willful misconduct, gross mistake, &c., 1047. can not create a nuisance by a system of drainage, 1050. personal liability of, for negligently managing docks, wharfs, &c., 252. action against, to be brought, if so directed, against their public officer or clerk, 1306. liabi lity of, for the natural consequences of works executed by contract and handed over to them, 580. mandamus to, to levy rate to discharge judgment debt, 1520. prohibition 10, 1454. injunction against, 296. of Treasury, Customs, or Excise. See Public Officers. Commissioners of Navigation. See Conservators — Statute — Water. are not entitled to soil of towing paths and banks of rivers, 442. Commissioners of Public Works, liable for arbitrary or negligent conduct, 43. Commissioners of Se'nrers, repair of sea-wall by, 318. Commissioners of Treasury. See Port — Public Officers. Commitment. See Justices. Common. See Enclosure Act — Pasturage. , rights of, 130. appendant, 135. appurtenant, 134. of shtick, 137. piir cause de vicinage, 138. of turbary, 139. of estovers, or right to cut wood, &c., 140. in gross, 141. right of, claimable by prescription, 149, right of, arising from long user, 151. inrerruption in the enjoyment of, 170. enjoyment of, to confer right, must be without interruption, but need not be without intermission, 171, 174, 176. right of, valid after thirty years' user under Prescription Act, 152. indefeasible after sixty years' enjoyment, 152. right of, an exception to rule that a profit h prendre is not claimable by custom, 134. suspension of, by non-user, 176. destruction of right of, by unity of ownership, 176, 184. except in case of copyholds, 184. right of, over land of which lord is only tenant for life, 159, inconsistent rights of, between commoner and lord, 144. right of lord of manor to enclose, 134. ascertainment of right of, by bill of peace, 216. injury to, is actionable without special damage, 2X2. taking manure from, is actionable, 192. interruption to right of, by erection of rails, 171. obstruction to right of, may be abated, 189. obstruction of, by fences, how remedied, 134, 144. disturbance of, by railway company, 134. obstructions to, by a house, gate, or fence, may be pulled down, 267. unless the house is in occupation of some one, 383. bares or rabbits on, may be destroyed, unless coming from lord's land, 193, 867. 380. to the paragraphs:^ INDEX TO THE TEXT. 847 Common — Continued. ■trespass by cattle straying from, 378. cattle trespassing on, may be distrained by either commoner or lord, 716 748. right to distrain beast wrongfully on, 140. remedy for surcharge of, by commoners, 193. surcharge of, may be remedied by distress, 747. surcharge of, by lord of manor, 144, 193. by commoners, 136. declarations in actions for obstructing, 197. Common Carrier. See Carrier — Carriers Act — Railway Company — Steam Boat Company. who is, 650. instances of, railway companies, stage coaches or Witons, lightermen, hoy- men, barge-owners, canal boatmen, shipowners, joi master, cabmen, &c., 650. ooligation on, to carry goods for all persons, ready to pay him, 649. except petroleum, nitro-glycerine, and other " specially dangerous" goods, 649. of passenger not obliged to carry goods, and vice versa, 649. may carry goods that he does not profess to carry, as an ordinary bailee only, 649. of passengers, must also carry their personal luggage, 649, 653, 656. liability of, for loss of goods, or animals, unless by the act of God, or the King's enemies, 653. although the lo.^s is occasioned by the misconduct of a stranger, 653. can not 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) jhall be at the risk of owner, 65 6. Statutory protection of, in respect of the carriage of gold and silver, title deeds, and other specially valuable articles, unless due notice of their nature be declared, and an increased charge paid, 657, 665. requisites of notice to be given by carrier, 658. liability of, where goods carried under a special contract, 663, 664. Kabilitv of, for acts of persons employed in doing his work, though not, strictly speaking, his servants, 663 liability of, for negligence, although goods carried under a special contract, 664, 666. commencement and duration of liability of, 667. when liable as warehousemen only, 668. delivery of goods by, at place of destination, 668. if consignee refuse to receive them, 674. of passengers only, not liable (except as gratuitous bailee) for loss of luggage, 653- may sue consignor of dangerous goods for damage caused by neglect to give notice of their nature, 654. is released from liability if the misconduct or negligence of consignor has con- duced to the loss or damage, 653, 655. acceptance of passengers or goods by, to be conveyed beyond the limit to which he himself carries, 670. not liable for goods not actually or constnictively delivered into his charge 69S but delivery to his servant or agent is a deliveiy to him, 701. not liable for goods, which the passenger carries in his own hands, 6g8. rot liable if goods placed in his cart, &c., without his knowledge, 698. or delivered to his servant on other terms than those on which he was autho- rized to receive them, 69S. when not liable for loss of valuable or fragile articles of the nature of which he has no notice, 34, 848 INDEX TO THE TEXT \Tk, ref^ence, ir* Common Carrier — Continued. liability of, for negligence or theft of servants, although consignor has omitted to declare value of article carried, 659, 663, 703. lien of, 676. action against, for not carrying safely, is an action of toit for negligence, and not in contract, 1415. declaration against, for refusing to carry, 694. pleas in actions against, 6g6. ^^hen he may set upyiw tertii in actions against him for loss of, or damage to goods or not, 692, 697, 701. evidence in actions against, for the plaintiff, 698, 702. evidence of negligence of, from delivery of short weight, 653. damages recoverable in actions against, 702, 704, limited by statute in certain cases if value not declared, 703, delay in delivery, 703, 704. Commoner. See Common. Company. See Directors — False Representation — Joint-Stock Company — Liquidation — Mandamus — Register — Shares — Statutory Compensa- tion. liability of, for the wrongful acts of its directors, managers, &c., 1305. prospectus of, to contain certain particulars or to be deemed fraudulent, 1181. where it carries on its business within meaning of County Court Acts, 1327. acting under Lands Clauses Act, compellable to take the whole, of a house, building, &c., if they take part, 1070. 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 term, io6g. no duty on, to communicate refusal to register transfer to transferoi, 1524. , liability of, to the innocent transferee of forged shares, 1376, 1524, in occupation of premises after winding-up order may be distrained on, 725. power of tendering amends by, 1074. mandamus to, to register shareholder or probate of will, 1520. mandamus to, to admit secretary or clerk, 1495. security for costs from, 1439. injunction to restrain action for calls by, on the ground of false representation or fraud, 1 1 So. Compensation. See Statute — Statutory Compensation. offer of, how far an admission of liability, 290. for mines, under or within a certain distance of railways or canals, 134, Composition. See Liquidation. Consent. See Jurisdiction. Conservators, of river, rights and liabilities of, 237, Consignor. See Bailor. Consols. See Stock. Conspiracy, action lies for, if malicious, and damage ensues, 850. to molest an actor in his profession, 850. to institute legal proceedings or obtain conviction of plaintiff, 85s, to obtain property by forgery, 47. to convict a man of felony, 48. damages in actions for, 882. indictment for, 850. Oonstable. See Arrest. may take person guilty of assault in his presence into custody, 793. totheparagraphs:\ INDEX TO THE TEXT. 849 Constable — Continued. is not bound to turn intruder out of a house, but he may do so, 793. can not arrest wkhout warrant, except for felony, or reasonable suspicion of, 802. what is reasonable suspicion, 802. not liable for arresting a man on reasonable suspicion of felony, 841, not liable for arresting a person by order of another, 802. liability of, if assisting another constable in a wrongful arrest, 802, may arrest person found committing malicious injury to property, 806. or person committing a breach of the peace in his presence, 8og, 810. or person hindering him from so arresting, 809. may arrest persons continuously ringing at a door-bell, or collecting crowd at a person s house, 810. powers of, in the Metropolis, 816. is not liable for seizing goods on a charge that they were stolen, 766. is liable for handcuffing unconvicted prisoners, 789. distinction between arrest by, and by private person, for felony, 803. statutory protection of, from vexatious actions, 820, 829. protection of, where they intend to arrest, &c., in pursuance of an act of parlia- ment, 821, 822. limitation of time for bringing actions against, 1029. assault on, or on revenue officers, punishable, 809. protection of, where he has acted under a warrant, and gives a copy of it on de- mand, 1035. protection of, from liability to action while acting under justice's warrant, 10, 15. so long as he does not exceed his authority, e.g., by handcuffing unconvicted prisoner, searching wrong house, 1016, 1017. ■ venue local in actions against, 834. plea of not guilty by statute in actions against, 1033. evidence in actions against, 1035. costs in actions against, 1420, 142 1. Onntagiim. See Cattle — Infection. O lintagi t us Diseases (Animals) Act, 4. Contempt of Court, what is, and committal for, 888. before magistrates, 968. in not answering a bill in Chancery, 928. extortion by sheriff is, 924. person guilty of, must be heard in his defense, 1007. remedy for imprisonment for, by application to Court of Queen's Bench, 1007. Contract, torts founded on, 27, 32. torts founded on, how far parties to actions are affected thereby, 32, 1288. entered into under false representation or fraud is actionable, though no war- ranty given, 1219. made under a false representation should be repudiated on discovery of the fraud, 1174. inducing another to break, is a tort, 17, 41, 1272. damages recoverable for, 1286 costs in actions of tort foitndod on, effect of County Court Acts on, 1414. Contractor. See Master — Notice of Action. liability of, for negligence in constructing works, &c., 283, 580. although the persons employing him may be exempt from personal liability by statute, 1045. Contribution, no right of, as between wronj;.doers, 1394. 11.— U 850 INDEX TO THE TEXT [Tlureftnncamr, Contributory Negligence, 567, 591. by consignor of goods, by defective packing or otherwise, 653, 655, by guests staying at a common inn, 684, 687. Oonversion. See Title. of cliattels, what is ; See Chattels, 467. mere removal of, without any claim, is not, 467. removal of, for use of defendant or third person, is, 467. refusal to deliver goods is, 467. delivery to third person contrary to orders is, 467. misdelivery by mistake is not, 467. sale of goods before stipulated time 13,467. leaving goods with third person, whereby a lien is created, is, 467. re-selling goods, sold on credit, before time for payment, is, 467. wrongful distress is, 467. obtaining goods by abuse of legal process is, 467. by sheriff, in selling more goods than necessary, 467. or in selling goods in possession of bailee or pawnee, 467. mere negligent dealing with goods is not, 467. wrongful destruction or damage to goods is, 468. ' of fixtures, 469. of goods by purchasers without title, 470. when demand and refusal is necessary to prove, 471. what a sufficient demand and refusal, 471, 472. of goods not in possession, or under control, of persons from whom they are demanded, 472. of goods left on premises without consent of occupier, 473. of goods found, 474. of goods by public officers, &c., 475. by servants, 475. by bailees, 475. of stolen goods, 493, 494. of goods, where the property in them has passed, 494, of goods obtained by fraud, 495. of goods in hands of bailees, 497. of goods by railway companies, 477. of bills and nates, 478, 479. by one partner, joint tenant or tenant in common, 480. of trust property, 481, 491. by persons claiming a lien, 482. of policy of assurance, 491. of property of bankrupts, 505. by owner as against bailee, 524. of timber or fixtures, 524, 536. by sheriffs, 533. of goods in the )»ossession of children, 524. or bailees or hirers, 524. of goods that have been distrained, 524. of goods in possesson of servants, 524. by executor, de son tort, 526. by married women, 526. of articles pawned, 526. of cargo of ship, 526. distinction between and trespass, 528. of soil by carrying it away, 528. demand and refusal does not amount to, but is evidence of, only, 529. liability of corporation for, 1304. liability of infant for, 1314. remedy for, by recaption or action, 523. remedy for, by re-delivery of chattels converted, by order of Court or t Judge, 526. b,th!paragraphs:\ INDEX TO THE TEXT. 851 Conversion — Continued. action for, or for money had and received at plaintiffs option, if the good* taken have been sold, 522. who to be plaintiffs in actions for, 524. • joint tenants or tenants in common, 525. who to be defendants in actions for, '^2t. joint tort feasors, 526. declaration for, 528. pleas in action for — not guilty, effect of, 529. not possessed, effect of, 530. of justification, 531. evidence in actions for, 532, 536. for the plaintiff, 531, 532. by admission of defendant, 535. for the defendant, 536, 537. damages in actions for. See Damaoes, 539, 543. effect of judgment for iti altering the property, if the judgment has bee« satisfied, 1357. ConTiction. See Summary Conviction. Coparceners. See Joint Tenants. should join in action for injury to reversion, 421. possession of, effect of, under statute of limitations, 398. Copyhold. See Common — Qustom. right to support of surface allotted under Enclosure Act, 852, n. Copyholder, may sue for injuries to trees, 421. action by, against his lord for refusing to hold a Court for his admission, waste by, when a forfeiture, 338, 340. mandamus to admit, or to allow him to inspect court rolls, 1495. Copyright. See Books, 60, 6g. in lectures, or dramatic or musical compositions, 62, 63. in maps, charts, guide books, or directories, 60. in books, containing prints, &c., in illustration of the letterpress, 66. in prints or engravings, 66. in paintings, drawing-, and photographs, 67. in histories, dictionaries, or articles in magazines, 60, 60, n. in dramatized novels, 62. in, combination of music with words, 62. in sculpture, 64. in useful, or ornamental designs, 65. colonial or international, 60, n. aliens, when entitled to, 60. none in works founded on fraud, or subversive of morality, 60. none in the title of a periodical publication, 60. may be obtained in certain portions only of a book or drama, 60, 63. in articles published in newspapers, 60. registration of, a necessary precedent to action for infringement of, 6$. assignment of, 62, n, 62. rights of assignees, of, 69. rights of as'^ignors of, 63, n. action for breach of, when to be commenced, 60. of design, action for infringement of in county court, 13S8. interrogatories in actions for breach of, 60, n. injunction against infringement of in eqmty, 1445. at common law, 145 1. Cornice, overhanging is a nuisance, 217, 41 5, n. 852 INDEX TO THE TEXT. ' The reference, are Cornwall. See Stannaries — Tin. Coroner, not liable fcr acts done in course of judicial duty, 883. has power to exclude public from Inquest, 883. and is not liable, therefore, for expelling a person from the room where in- quest is held, 883. statements of, at inquest how far privileged, 1 135. prohibition to, 1453. Corporation. See Company — Municipal Corporation. liability for, in trespass for, seizing goods, 1304. for wrongful distress, 1304. for assault or false imprisonment, 832, 1304, 1307. for negligence in the construction or management of machinery, 1304, for negligence or wrongful acts of servants, 1041, 1304. for malicious prosecution or libel, 872, 1304. for conversion or detention of property, 1304. for libel published by its direction, 1140. for negligence in management of baths and wash-houses, 253. foreign, is not liable for torts, unless committed in this country, 1170, 1171. ecclesiastical, or eleemosynary, recovery of land by, under Statute of Limita- tions, 401. mandamus to. See Mandamus. indictment against, 299. injunction Against, 295. Costs. causing a person to incur, is a tort, 12. at common law are damages, but are now given by statute, 1401. to a plaintiff on demurrer on verdict, 1401. to a defendant, where the plaintiff, if successful, would have been entitled to them, 1401, 1402. to one of several defendants acquitted, or against whom a nolle prosequi is entered, 1402. of several defendants defending jointly or separately, 1436. on pleas puis darrein continuance, 1402. on stay of proceedings, 1404. on arrest of judgment, or judgment non obstante veredicto, 1405. where case dismissed on ground of want of jurisdiction, 1406. where jury are discharged, and plaintiff discontinues, 1436. if juror withdrawn, 1407. in actions of detinue, 1409. of libel and slander, 1408, 1412. against executors, by Crown for duties or penalties, 1424. on judgments, 1425. on new tri.ils, 1426. on appeals from inferior to superior court or to Exchequer Chamber, 1428. on certiorari or prohibition, 1429, 1438. on indictments for libel or slander, 1431. or writ of mandamus or injunction, 1432, 1440. under Railway and Canal Traffic Act, 1433. double or treble not now given, 1434. in compensation cases, 1435. general, of cause, who entitled to, 1437. on, or of reference, 1416. in actions of trespass, after notice, 1419. against justices or constables, and others intending to act in execution of statutory powers, 1420, 142 1. where plaintiff recovers less than ;f 300 in a case of collision between ships, or action of tort in respect to the carnage of goods in ships in a superior court, 1334. to the paragraphs?, INDEX TO THE TEXT. 853 Costs — Continued, of several counts founded on same cause of action, 1340. of several pleas founded on same ground of defense, 1345. of action up to plea of puis darrein continuance, 1351. after plea of payment into Court, 1351. of proceedings under Railway and Canal Traffic Act, 705. of proceedings to compel County Court Judge to perform his duties, 893. in ejectment, 1401, n. in prohibition, 1463, n. on mandamus, 1516. power of justices to give, under Vagrant Acts, on appeals from justices, 1014, n. of prosecution for non-repair of highway, 1014. wnen certificate necessary to entitle plaintiff to, 1409. that action was brought to try a right, 141 5, 1440. within what time to be granted, 1411. that action was fit to be brought in the Superior court, 1412, 1415. that trespass or grievance was willful and malicious,l4l8, 1419. of approval of action in actions against constables and others intending to act under statutory powers, 1421. effect of County Court Acts on, 1412, 1416. in actions of tort founded on contract, 1414. in case of payment into Court, 1434. where cause referred, 1415. taxation of, 1434. needless expense not to be allowed, 1436. of particular issues, or abortive issues, 1437, 1437, n. security for, 1439. in Co^inty Court, 1440. of prosecutions, 1440. security for, in all actions of tort, 759. Counts. See Declaration — Costs. County Court. See Bailiff — County Court Judge. actions in, in what Court to be brought, 1327. jurisdiction of, to what actions, and claims to what amount it extends, 13281 1458, 1460. jurisdiction of, depends upon the substance of the action, not its form, 1459. copyright of design, 1329. friendly societies, 1330. where title to land, &c., is in question, 1331, 1332. -recovery of possession of s™a-ll tenements, 1332. in equity, 1333. in Admiralty cases, 1334. by consent, or without objection by parties to suit, 1336. where plaintiff abandons part of his claim so as to bring it to the amount to which the jurisdiction extends, 1459, 1473- in actions of replevin, although title to land comes in question, 755. where action in superior court has been brought for same cause, 1354, appeal from, in actions of replevin, 755. actions brought in superior court of law or equity may be remitted or trans- ferred to, for trial, 1328, 1333. judgment in, is a bar to another action for same cause in another court, 1355. proof of proceedings in, 954. costs in, 1440. . . can not give costs where case dismissed for want of jurisdiction, 1406. unless expressly authorized by statute, 1440. prohibition to, 1331, 1459, 1461. 1461. "• certiorari to remove causes from, 1474- appeal from, 1473. 854 INDEX TO THE TEXT. IThe references art County Court — Continued. mandamus to, 1483. costs on appeal from, 1427. clerk of, how far liable for seizures made under irregular or informal warrant of execution, 934. County Court Judge. See Judges. how far liable for acts done without jurisdiction, 886, 887. must inquire to see if a question of title is really involved, 886. may commit for contempt, 888. power of, to imprison, 890. forms of commitment by, 889. are judges in bankruptcy in the country, 88g. how compellable to act, 893. are entitled to notice of action, actions against, must be brought in adjoining district, 930. Court. See Court of Record. refusal to obey decree of, is a tort, 39. Court of Admiralty, jurisdiction of, in cases of collision, causing death, 556, 563. jurisdiction of, in suits for limitation of liability, 559. in cases of collision, 560. in cases of negligent navigation, stowage, &c., 562. over collisions between ships, caused by negligence, 576. and over any claim for damage done by a ship, 576, proceedings in, usually in rem, 576. but are no bar to action at law for damages, 557, 576, Court of Bankruptcy. See Bankruptcy — Messenger. Court Baron, Steward of, is a judicial officer, 890. prohibition to, 1453. Ooiurt of Chancery. See Injunction. jurisdiction of, to order delivery up of goods unlawfully detained, 645. to award damages for infringement of patent, 74. Court of Justice. See Court of Record. Court Martial. See Arrest — Military Officer — Naval Officer. officers may be tried by, 43. proceedings of, can only be interfered with by Court of Queen's Bench to pro- tect the civil rights of a person, not his military status, 894. no action lies for malicious proceedings before, by inferior against superior officer, 861. prohibition to, 1453. Court of Record, who are Judges of, 890. power of, to commit for contempt, 888. Judges of, have power to commit by word of mouth, and without warrant, 800. liability of Clerk of, for neglect of duty, 896. Coverture. See Prescription act. effect of, under Statute of Limitations, 403. Cow-Grasses, right of, 142. nricket, injuries to persons from others playing at, 567. toihipamgraphs:^ INDEX TO THE TEXT. 8s 5 Crowd, collection of, when a public nuisance, 225, 297. Crown. See Costs — Palace — Extent. grants by, in derogation of forestal rights, 133. Cruelty. See Husband — Wife. Curse, penalty for Custom, what it is, 133. must be reasonable, and have existed from time immemorial, 133. to demand a license to fish, 133. to use water from a spring or well, or to wash cattle, 133. to erect booths, &c., on waste of manor, 133. to resort to village greens, &c., for recreation, 133. to take sand and gravel from sea-shore, 133. to fish in another's pond, 133. to take estovers, 133, 140. right of common claimable by, 140. to search for tin in Cornwall, 143. to pass over sea-shore to bathe, 148. to pass over arable land when crops are standing, 449. to dry nets on sea-shore, 147. to dig and get clay, coals, minerals, or to cut timber, 133. to use water for mining, 160. by lord of manor to enclose against commoners, 141, easements acquired by, 113. Custom House. See Revenue officers. Customs, commissioners of. See Public Officers. collector of, responsible for neglect to sign a bill of entry, &c.,30. superintendent of, is liable for ruining the trade of a merchant, 30. Damage. See Damages. to person or property, though not causing any pecuniary loss, is a tort, 15. arising from acts lawful in themselves, ^.^., lighting afire or sinking a mins on your own land, is nevertheless actionable, ig. when sufficiently connected or not with the wrong to create a cause of action, or the contrary, 10, 13. statement of, in declaration, 1339. under Lord Campbell's Act, 1340. apportionment of, in Court of Admiralty, in cases of collisions of ships, 567. injunction against prospective, 293, n. Damages. See Court of Chancery — Statutory Compensation. recoverable in actions of tort, 1382, 1384. ordinarily and naturally resulting front the wrongful act, are recoverable i claimed, 1384. too remote and not naturally resulting from the wrong, 1385. if more given than claimed, 1382. if given entire, and one count bf: bad, 1382, 1399 — in actions of slander, where some words charged are actionable, and others not, 1382. in actions for false representation by joint stock company, and the purchase of shares in consequence, 1383, in actions of tort founded on contract, 1386. in actions for false representation or fraud, 1226, 1228. in actions for false representation of agency, 1388. where tenant has kept possession after tenancy has determined, and landlord 8S6 INDEX TO THE TEXT. IThe references an Damages — Contin ued. has been obliged to pay damages to the tenant to whom he has relet the farm, 1388. where plaintiff has paid for services of steam-tug in case of collision caused by negligence of defendant, 1388. where plaintiff has refold an article with a warranty, which was warranted to him, [388. in actions of libel or slander, 1164, 1266, 1391. for injuries to land whenever act complained of would lay the foundation of a right, though no actual damage proved, 107. but not otherwise, 107. in actions of trespass to realty, 455, 464. after notice, 455. for trespass, if willful or after notice, 375. in actions of trespass to land — trespasses in dwelling houses, 456. by tenant against landlord for damage in cutting timber, 455. injuries to buildings, 457. digging and carrying away coal, &c., 458. in respect of diseased cattle, 45g. if plaintiff only tenant at will or on sufferance, 460 if reversion injured as well as occupation, 461. if several co-trespassers, in case of hunting, &c., 462. if tenant holds over, 463. • in actions of trespass, where several are concerned, 846. in actions for conversion, 537j 542. if property stolen, 539. if action Ijrought by bailee against owner, or owner against bailee, 540 if plaintiff's property is doubtful, 541. for seizures under Cusloms Act, 543. of bills and notes, 540. if goods have been delivered up, 541. interest in addition to, by statute, 542. exceeding the value of the goods, if the natural consequences of the wrongful act, J42. in actions for seduction, 1283, 1285. 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, 1286. in actions for injuries to servants causing loss of service, 1293. in actions against justices, 1039. in actions against sheriffs, 955, 956. in actions for malicious prosecution, 845. in actions for malicious prosecution, malicious indictment, or malicious con- spiracy, 882. in actions for waste, 368, 371. for obstructing entry to inspect waste, 370. ■ , in actions for fall of house from negligence of adjoining proprietor, 282. for severance of fixtures, 367 in actions for unlawful or excessive distress, 783, 786. in actions against common carriers or innkeepers, 702, 704. in actions of detinue, 645, 647. where the whole or part of the property has been delivered up after action, 647. where property, e.g., railway shares, the value of which fluctuates, have bees detained, 648. in actions for negligence, 589, 594. if death caused by, 594. ? in actions of assault and false imprisonment, 845, 849, I in actions for injuries from ferocious animals, 292. in actions for nuisances, 2gi, 292. in action by reversioner for a nuisance to demised premises, 292 ^ totheparagraphs:\ INDEX TO THE TEXT. 857 Damages — Continued. in prohibition, 1462. in equity, 1441. for waste already committed, 371. ■ in Divorce Court, 1268, 1270. apportionment of, between tenant and reversioner, 108, n, 461. expense of obtaining legal advice, 1387. costs of previous legal proceedings, 1388. recovered from one of several tort feasors is generally an answer to claim against another, 1354. 1355. secus in cases of libel, 1354, 1355. expenses, &c., which the plaintiff is liable to pay, though not actually paid, 1389. medical expenses, 1390. prospective, 1391. exemplary, where wrong accompanied with personal insult or degradation, will- ful malice, &c., 1392. mitigation of, 1393. in actions against custom-house officers for seizing goods, 1393. in actions for false imprisonment where defendant had reasonable grounds for suspecting plaintiff, 849, 1393. in action of libel or slander by evidence of bad character of plaintiff', 1393. in action for assault, whers plaintiff' had libelled the defendant, 1393- in actions of trespass or trover, where defendant has retaken goods sold, fear- ing they would not be paid for, 1393, 1394. where goods have been seized under void process, though the judgment was regular, 1394. where plaintiff has retaliated upon the defendant, 1397. where plaintiff has been guilty of misconduct, or defendant intended to act rightly, under an Act of Parliament, or supposed authority, 1397. where plaintiff has received full compensation under a contract of insurance, 1395- double and treble, in what cases given, 1396. excessive, are ground for new trial, 1397, 1399. where plaintiff has himself fixed the amount, and received it, 1397. must be assessed jointly against joint trespassers, though all are not equally culpable, 1394. too small, are ground for new trial, 1398. inquisition of, befor:, sfteriff, 1400. include costs, 1401. See COSTS. Dams. See Sea-walls. Sean. See Ecclesiastical Dilapidations. Dean and Chapter, mandamus to, to admit prebendary, 1495. Death, negligence causing, is actionable, 575- action for injury causing, though amounting to a felony 4& effect of, on proceedings in an action, 1326. Debt, imprisonment for, is abolished, 921, n. Deceit. See Falsehood — False Representation. instances of action, for, 1211. licence obtained by, is a nullity, 447. Declaration. See Amendment — ^Variance — ^Venue. requisites of, 1338. venue, 1338. statement of, special damage, 1339. several counts, 1340, 8S8 INDEX TO THE TEXT. \The references au Declaration — Continued. in actions for injuries to land, lOO, 102. for the diversion, obstruction, or pollution of water, 100. for injuries to, the right of support, lOI. of waste, loi. in actions for obstruction of easements or profits i pendre to a ferry, market, or mill, 197. against innkeeper for loss of chattels, 695. for nuisances, 2S4. for trespass to land, 423. for malicious prosecution, 875. for libel or slander, 1141, 1144. for seduction, 1 281. for deceit, fraud, or false representation, I2II, 1213. for statutory compensation, 1066. for wrongful excavations, &c., 197. for obstruction to flow of water through a drain, &c., 197. against bailees for loss of, or damage to, goods bailed, 635. in actions of detinue, 634. against carrier for refusing to carry, 694. in replevin, 762. for wrongful or excessive distress, 763. for distraining and selling goods without notice of distress or appraisement, or for not selling for the best price, 764. for negligence, 584. for waste, by fire, or otherwise, 364. for assault and false imprisonment, 834. in trover or trespass to personalty, 528. for injuries to the right of light and air, ig8. in actions where notice of action is necessary, must agree with notice, 834. declarations. See Admissions. Decoy-Pond, driving away wild fowl from, is actionable, 20. disturbance of, by firing guns, is a nuisance, 216 . Dedication. See Highway. Deer. See Game — Waste. Defendant, expenses of, as witness, may be allowed, 1436. Defendants. See Amendment — Parties 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, 1321. in actions for injuries to land, 97, 100. master or servant, 98. in actions for conversion, 524, 528. joint tort feasors, 526. in actions for negligence, &c., in carrying goods, 693. in actions for negligence generally, 579, 580. Demand. See Conversion. Depositions. See Justices. Desertion. See Husband — Wife. Design. See Copyright. registration of, useful or ornamental, 65. Detinue, ' plaintiffs in actions of, 632. declarations in, 634. totheparagraphs.-\ INDEX TO THE TEXT. 859 ^eMaae— Continued. plea of non-detinet, in action of, 637. not possessed in actions of, 637. payment into court, in actions of, 641. evidence in actions of, for the plaintiff, 642. for the defendant, 643, 644. damages in actions of, 645, 647. order of court or judge, for delivery of goods detained, 645. costs in actions of, 1409, n. Devisee. See Tenant in Common. when may sue for injury to land devised, I2q7. may sue for detention of title deeds, 644. Dictionary, copyright in, 60. Dilapidation. See Ecclesiastical Dilapidations. Directors. See Auditor — Company. liability of, for false and fraudulent reports, 1305. false representations by, to sell shares, &c., 1175, 1180, I189. is a misdemeanor, 1180. false representation by, 1175, itSo, 1197, I2IO. negligence, or neglect of duty, by, 574. Directory, copyright in, 60. Dissenting Minister, has not a freehold ofifice, 1490. mandamus to admit, 1495. Distres*. See Costs— Landlord — Rent. at common law only a pledge, and may be detained till rent paid, 706. there must be a tenancy at an abcertained or ascertainable rent, and distrainor must be entitled to immediate reversion, 706. by morgagee under agreement in mortgage deed, 706. no power of, against wrongdoer, e.g., tenant holding over after expiration of term, 518. on bankrupt tenant, or by bankrupt landlord, 706. must not be repeated vexatiously, 706, 734. extent by crown takes precedence of, 706. at suit of crown for duties due from bankrupt, 7o6n. for royalties, 707. by successor of tenant for life, where tenancy determines on death of such tenant, 707. right of may be conditional, £'.^., on the landlord doing certain repairs, &c., 708. , for rent payable in advance, 709. illegal, may be resisted by force, and goods retaken till they are impounded, 709. after termination of tenancy for rent due before, 710. on executors, &c., after the death of tenant, 707. on premises after the departure of tenant, 710. on away-going crop, 710. by executors, 766. may be made for six years' arrears, 723. on goods or crops seized under an execution, 723. on goods of bankrupt tenant in possession of mortgagee under a bill of sale, 726. under a licence from debtor to creditor, 727. by grantee of tithe or other rent-charge, 728, n. on goods fraudulently removed by tenant, 728. what amounts to, 729, 736. 860 INDEX TO THE TEXT. IThe refeunca an Distress — Continued, by warehousemen or lodging house keeper, 729. abuse of, renders landlord a trespasser at common law, and is actionable 730, 735. when no rent in arrear, is illegal, 731. excessive, by seizing more goods than necessary, is actionable, 732. although they do not ultimately realise more than the rent and expenses, and although the tenant had the free use of them, 732. for more rent than is due, not actionable, unless more goods are sold than is necessary to pay the rent really due, 733, 738. after termination of tenancy by notice to quit, revives the tenancy, 710. by agents, receivers, cestui que trast, or mortgagor, 711. by joint owners, or tenants in common, 711. by mortgagees, 711. by executors or administrators of landlord, 712. right of, may be abandoned by agreement, 713. right of, not destroyed by landlord taking a bill or note for the rent, 714, 734. wrongful, if rent has been tendered, 715. unlawful or excessive, is actionable, though the tenant enters into an arrange- ment with landlord respecting the things seized, 780. time, mode, and place of, 716, 729. must be made on land demised, 716. on cattle, &c., on common, 716. not wrongful, ab initio, because goods not distrainable are seized with others that are, 7S5. does not alter the property, 362. affirms the tenancy, 746, 781. on goods seized and sold by sheriff to execution creditor, but not removed 9H. by county court bailiff or registrar, 927. by order of justices, 996, 997. for non-payment of poor-rate, 997. for non-payment of poor-rate, 978. what things are liable to, or not — tenant's fixtures, 717. millstones, railway sleepers, &c., 717. beasts of plough, sheep, implements of husbandry and tools, or clothing, &c., in actual use, 717. growing crops, fruit, or other perishable articles, money, &c., 718. trees or shrubs in nursery gardens, 718. property of third persons on demised premises, but in their own possession, actual or constructive, 719. property of third persons, placed on demised premises, with leave of landlord, 720. property of lodgers, 720. property of third person placed on demised premises to be worked on in the way of trade, pawnbroker's pledges, &c., 721. property of guests at an inn, 722. goods in the custody of the law, 723. goods of foreign ambassador, or his servants, or of companies in liquidation, 724. goods left by owner on demised premises in possession of the tenant, and not necessary for the carrying on of tenant's trade, 725. goods mortgaged by tenant, 726. impounding and removal of, 735. removed from pound, may be recaptured, 735. impounded, must be fed, 735. leaving possession of, for a temporary purpose, is not an abandonment of, 736- notice of, inventory of things seized, and appraisement before sale, 742. sales of articles not included in, illegal. 742. tothefaragrafhs.-\ INDEX TO THE TEXT. 861 Distress — Continued. sale of, must be for best price, 743, 764. costs and expenses of, 743. sale of, 737, 744- irregularity in sale is actionable if tenant suffers actual damage, 744. unlawful after tender of rent and expenses, 738, 739, 740. surplus goods to be returned to distrainee, wrongful, amounts to a conversion, remedy for wrongful, by replevin. See Replevin. remeay for unlawful or excessive, or for distraining things not liable to distress by replevin, action of trespass, or trover, according to circumstances, 759. plaintiffs in actions for excessive, 760. lodgers, under-tenants, persons who have the actual possession of goods, &c. 761. defendants in actions for illegal, 761. landlord for bailiff, partners, &c., 761. declarations for wrongful or excessive, for selling goods without notice of dis- tress, or appraisement, or for not selling for the best price, &c., 763. plea of recovery of goods by replevin in actions for excessive, 774. evidence of fact of, 775. evidence in actions for unlawful or excessive, 776, 783. proof of special damage necessary in actions for irregularity in making, 779. payment of rent under, not conclusive admission of title of distrainer, 781. damages in actions for unlawful or excessive, 783, 786. landlord can not claim to apply proceeds of goods wrongfully seized in dis- charge of rent, 784. damage feasant, 747, 752. on commons, 747, 749. on unfenced land adjoining highway, 748. or land which person distraining was bound to fence, 773. what things are liable to, horses in use, dogs, nets, pigeons, railway engines &c., 749. tender of amends, 751. impounding of, 751. sale of, to discliarge expense of feeding the impounded animals, 752, 758. on beasts wrongfully on common, 190. right of, between one commoner and another, 190. pleas justifying entry to make, or seizure of animals or goods damage feasant, 772. Ditches. See Drains. repair of, by side of turnpike road, 218. adjoining highway, are a public nuisance if choked up, 297. boundary, property in, 416. Divorce. See Husband — Wife. Dock, negligence in the management of, 252. Dock Company, lien of, 624. Dog. See Animals — H,ounds. injuries from attacks of, 261, 263. person " keeping," is liable for injuries inflicted by, although not the;vrner 261. injuries by, to horses, cattle, sheep, or game, 35, 35, n., 263. attacking a person, may be shot, 263. stray, may be detained by police, 261. dangerous, may be destroyed by order of justices, 261. injury by, to crops, sheep, or cattle, 381. chasing of cattle, sheep, or game by, when a trespass or not, 466. 862 INDEX TO THE TEXT. ITJu nf trends m. Dog — Continued. may be shot, if cattle, sheep, Or game, which they are chasing, can not othf (Tvise be preserved, 466, 531, 539. reputed mad, duty to keep carefully, 264. right of action for injury to, from spears or traps, 227. liability of common carrier, or railway company, for escape of, 653. may be distrained, damage feasant, 749. Dog Spears, setting of, not illegal, 226. Drain. See Cesspool — Sewer — Tenant — Water — ^Watercourse. obligation to repair, lies on person using, not necessarily on tenant, ago right of repair of, in alieno solo, 118, 121. right to use, in common with adjoining proprietor, 118. right to use of water from, 163. Drainage. See Water. statutory powers of, 83. Drama. See Copyright — Novel. unlawful representation of, 63. Drawings. See Copyright — Paintings. Driving. See Carriage — Coach — Horses. Duty. See Tort. breach of, is a tort, 28. instances of breach of, by joint stock companies, shareholders, assign es oi leases, public officers, bishops, clergymen, lords of manors, postmasters, bailors of chattels, &c., 30, 33. Duties. See Costs. imposed by statute. See Statute. Dye-house, is a nuisance, 217. Easement, how acquired or extended, 113. when may be acquired over land let on lease, 151, 156. presumption of grant of, from long user, 151. what may be claimed under prescription Act, 153. user of, must be without interruption, but need no^ b e without intermission, 171. 174, 176- of recreation and amusement on village greens, II 5. of towing on river or canal, 412. of using your neighbor's chimney, 213. of support. See Support. . j •/ not extinguished by destruction of house or mill to which they are attached, if house or mill rebuilt, 187. extingui'.hment of, when purpose for which it was granted, ceases to exist, 177 can not be created, but may be destroyed, by license, 177. extinguishment of, by unity of possession of the dominant and servient tene- ments, 130, n. 176, 184, 187. revival of, which has been extinguished by unity of ownership, 185, 186. transfer of, et seq. 130. reservation of, on sale, et seq. 118. of necessity, when they pass by sale of land to which they are appurtenant 118. effect of valuable consideration having been paid for enjoyment of, 157. declarations for obstructions to, 197. injunction to prevent disturbance of, 213. Eating House, keeper of, not an innkeeper, 683. tolheparagraphs:\ INDEX TO THE TEXT. 863 Eaves. See Cornice — Reversioner — ^Water. right to use of water from, 163. Ecclesiastical Dilapidations. See Fixtures. ' liability of rector, archbishop, dean, &c., to repair and rebuild buildings, chan- cel, &c., 337. i but not for internal decoration, 337. rights of same persons to make alterations, substitute new buildings for old, &c., 337- and to alter cultivation of glebe, plough up grass land, &c., 337. rights of same persons over mines, and to cut down timber, 337. law as to, so far as buildings are concerned, how altered by the 34 and 35 Vict. c. 62, 337. for non-repair of buildings or fences, but not for state of agricultural land, 1317. negligence in valuing for, 572. Ecclesiastical Court, prohibition to, 1453, 1457. Ejectment, can not be joined with another cause of action, when may be brought in County Court, 1331, 1332. costs in action of, 1402, n. injunction in actions of, 1450. Election. See Sheriff. Electric Telegraph Company, liability of for mistakes in transmission of messages, 27. Embankment. See Sea-wall — Water. erection of, when actionable, 4. Emblements, statutory provision as to, where tenancy determines on death of tenani for life, &c., 707. Enclosure. See Enclosure Act. right of, by lord of manor, 134. Enclosure Act. See Copyhold. rights of lords of manor, and allottees, under, to surface and minerals respect- ively, 215. rights of lords of manor to game, &c., under, 116. title to highways laid out under, 452. Encroachment. See Tenant. Engravings. See Pictures — Prints. Entries. See Evidence. Entry. See Indictment — Nuisance — Statute of Limitations. sufficient against person not entitled to land, 445. by landlord justifiable if premises vacant, otherwise not, 795. Escape. See Sheriff. Estoppel, as between landlord and tenant, 983, 1332. as between distrainor and distrainee, 706. as between tenant and receiver of Court of Chancery, 781. as between plaintiff and defendant, 537. as between bailor or owner and bailee of goods, 537, 643, as between execution creditor and execution debtor, 909. as between judgment debtor and sheriff, 922, 923, as between the sheriff and the owner of goods, not the defendant, seized IB execution, 907. 864 INDEX TO THE TEXT. \Tbe reference are Estoppel— Continued. as between principal and agent, 388. as between patentee and assignee or licensee of, 75. as between a person representing a certain state of facts as true, and the per- son who has acted upon such representation, 1376. as between company and innocent transferee of forged shares, 1376, 1524. must be pleaded, but if not pleadable may be relied on at trial, 427. Estovers, common of, 140. grant of, 129. claim of, in a royal forest, 133. Etching. See Pictures. Evidence, in actions for injuries from non-repair of drains or sewers, 290. in actions for injuries from dangerous excavations, or fall of ruinous buildings, 2go. in actions for injuries from non-repair of party walls or fences, 290. in actions for negligent management of buildings, railways, canals, or docks, 2go. in actions for injuries to workmen from dangerous premises, defective ladders, &c., 290. in actions for injuries to guests from dangerous premises of host, 290. in actions for injuries from ferocious animals, dogs, &c., 290. in actions for illegal arrest, for the plaintitt, 877, 878. in actions for malicious prosecution, for the plaintiff, 877, 880. oral, of what took ])lace before the magistrates, 877. of malice, and want of probable cause, 880, 881. of malice from want of probable cause for a prosecution, 853, of want of probable cause from malice, 853, 863. pf malice from admission of defendant, 854. m actions for malicious prosecution, for the defendant, 881. in actions against justices — proof of malice and want of probable cause, 1034. in actions of libel or slander, for the plaintiff, 1147, 1 163. of malice, 1156, 1157. in actions against newspapers, 1145. fcr the defendant, 1 163, under plea of not guilty, 1 144. in actions for false representation or deceit, 1216, 1225. of contract with railway company, by production of ticket only, is not suffi- cient, 651. of fraud by an agreement, though unstamped, 1219. in actions for seduction, 1282. in actions for injuries to land, 105. for the plaintiff in actions for waste, 366. in actions of trespass to land, for the plaintiflF, 441, 446. for the defendant, 446, 453. under plea of not guilty, 424. under plea of liberum tenementum, 387, 446. under plea of leave and license, 447. of public right of way, 451. in actions against carriers, for the plain tifi, 698. of felony by servants of carrier, 700. in actions against constables, 1035. in actions of assault, for the plaintiff, 842. for the defendant, 844. under plea of not guilty, 825. under plea of son assault deir.esne, 844. in actions against sheriffs, for the plaintiff, 945, 9501 to the paragraphs.] INDEX TO THE TEXT. 865 Evidence — Continued. for the defendant, 953. in actions of detinue, for the plaintiff, 6d2. for the defendant, 643, 644. in mitigation of damages, 648. for plaintiff in actions for nuisances, 290. of occupation, 290. ' for defendant, 291. under plea of not guilty, 291. for the plaintiff under plea of not guilty in actions for obstructions to case- ments or profits a pendre, 203. under plea traversing right stated in the declaration, 2or, for the plaintiff in actions for conversion, 532, 535. of conversion by admission of defendant, 535. for the defendant, 536, 538. in actions for false imprisonment for the plaintiff, 843. signing charge sheet, 831. for the defendant, 769, 822. under plea of not guilty by statute, 836, 837. in actions for unlawful or excessive distress, for the plaintiff, 776. of tenancy, 781, 782. of fact of distress, 775. for the defendant, under plea of not guilty " by statute," 771. of malice from distraining upon a bankrupt for poor rate, 854. of manorial customs, boun daries, 1377. of title and seizin by receipt of rent, declarations of deceased tenants, &c., 106, 386, 443, 1378. of title to sea-shore, 406. of ownership of ship by production of ship's register, 586. of title of trustees in banlcruptcy, executors, administrators, or nominal parties, 534- in actions for negligence, for the plaintiff, 585. of negligence from the very occurrence of the acciaent or loss of the goods, 546, ;86, 607. from loss of goods by theft, 663. in case of goods on board ship being injured by oil, 664. from delivery of short weight, 653. for the defendant, 589. in Court of Divorce, 1259, 1268. of marriage, 1265, 1267. of proceedings in county court, 954. of adjudication or other proceedings in bankruptcy, 534, 534, n, 1299. primary and secondary, 1370. best to be produced, 1370. except in cases of admission of person against himself, 1370. and cases of appointment to an office, such as constable, trustee of turnpike- road, excise officer, &c., 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, 1370. notice to produce writing, &c., necessary to let in secondary evidence of its contents, 1371. except in case of duplicate originals, notices afRxed to freehold, or where the action is brought for the detention of the writing or document itself, 1371. hfarsay, when admissible, entries of deceased persons against their interest or in the exercise of their duties, 1373. declarations accompanying an act, 1375. by agents or servants in the course of a wrongful act done in obedience to master's orders, 1375. by one of several wrong-doers in actions for negligence, 1375, 1376. II.-S5 866 INDEX TO THE TEXT. [The nf, renews art Evidence — Continued. when the adverse party in a suit is estopped from giving, to coEttadict his own representations, 1376. depositions of witness too ill to attend, 138 1, in mitigation of damages. See Damages. Excavation. See Declaration^Mines — Support. on a man's own land to build a house, 220. unfenced, by side of highway, is a nuisance, 222. illegality of, adjoining highway, 230. Excise, commissioners of. See Public Officers. Execution. See Sheriff. right to issue may be exercised, though it be done maliciously, 862. for a larger sum than due, when actionable, 865. abuse of, to obtain something not authorized by the process of Ikw, e.g., the delivery up of a ship's register, is actionable, 861, 871. property may he taken away to avoid, 539. against company in liquidation is void, 724. suffering, when an act of bankruptcy, 505, 506. title to property under, in case of bankruptcy of execution debtor, 506. Execution Creditor. See Judgment Creditor. Executor, has constructive possession of testator's goods from the time of the death, 533. right of, to fixtures against heir, 340. against reversioner, 340. 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, 1315. but are made liable by statute for injuries to real or personal property com- mitted by testator within six months of his death, 1316. of prebendaries, incumbents, &c., liability of, for ecclesiastical dilapidations, 1317, not liable in equity for negligence of their testator, 1315. liability of, for their own wrongful acts, e.g., in detaining or converting prop erty, or committing waste, 1318. when, may sue for injury to land devised, 1297. or to personal property of testator, 1297. can not sue for injuries to person, or personal character of testator, unless tha cause of action is founded on contract, 1297. but may sue for negligence causing death of testator, 575, 1297. damages recoverable in such case, 594. distress by, 712. of tenant may be distrained upon, 710. character of, need not be proved unless it is specially denied, 534. costs in actions against, I423. security for costs from, 1439. Executor de Son Tort, liable to administrator for conversion of goods of deceased, 536. Exposure. See Indecency. Extent, takes precedence of landlord's claim to rent, 910. maliciously issuing, when actionable, 865. Factor. See BAILEE — BROKER. Factory. statutoiy regulations for management of, 564, n, 564. t,thetamgraphs:\ INDEX TO THE TEXT. 867 Fair. See Market. interference with, how far a tort, 22. injunction against holding, 2g6. unlawful within Metropolitan Police District, 133, n. may be abolished by Home Secretary, 133, n. False Imprisonment. See Arrest — Costs — Imprisonment. what amount, to imprisonment, 799. constructive, 799. unlawful detainer, 802. need not necessarily be malicious, 40. arrest by constables, with or without warrant, 802, 803. by private persons, 803. for misdemeanor, 804. of wrong person, 805. if such person has caused the arrest by his own misrepresentations, 805. for malicious injury to property, or willful and malicious trespass, 806 807. of persons committing indictable offenses at night, 808. for breach of the peace, 809, 811, 841. during affray, 810. of persons disturbing divine service, 812, 841. of vagrants and persons committing acts of public indecency, 813. under Merchant Shipping Act, 814. of principal by his bail, 815. for offenses within Metropolis, 816. of persons suspected of being in possession of Government stores, 816, n. by servants of railway companies, 817, 1304. of persons as deserters, 818. of lunatics, 8ig. by person assisting a constable in ai-resting, &c.; secus if he merely makes a statement to a constable, or lays a complaint before a magistrate upon which the constable arrests, or the magistrate issues a warrant, 831, 835, 1032. on void writ, though not set aside, if issued contrary to express provisions of statute, 921. under void writ, is a justification to the sheriff, but not to the client or attor- ney who issued it, 921. by order of corporation, 1304. by order of court martial, 841. plain liffs in actions for, 830. if two or more are imprisoned, 830. defendants in action for, 831, 832, 1032. all persons ordering, &c., or assisting in the imprisonment, or giving inform- ation which causes the imprisonment, 831, 843. or subsequently ratifying the act, 833. signing charge-sheet is primd facie evidence that person signing ordered the imprisonment, but is not conclusive, 831, 843. attorney and client, if legal process has been set aside as irregular, 831. otherwise, if for error, 831. or if judgment be set aside in the exercise of equitable jurisdiction of the Court, S31. corporations, railway companies, &c., 832. persons ratifying an arrest committed by their agents or servants, 833. declarations for, 834, 843. pleas in -not guilty, 835. not guilty by statute, 836. previous hearing, and dismissal by magistrates, 837, 844. imprisonment for preservation of discipline, or the safety of a ship, 840. that felony had been committed, and that defendant had reasonable cause of suspecting the plaintiff, 841. that plaintiff would not leave defendant's house or shop, 841. 868 INDEX TO THE TEXT. [The references an False imprisonment- -Continued. evidence in actions for, for plaintiff, 843. for the defendant, 844. damages in actions for, 845, 848. where plaintiff remanded by magistrate, 845. money paid to obtain release, &c., 848. evidence in mitigation of, 849. Judgment recovered in action for, is no bar to action for malicious prosecution, 849. 1355- Falsehood. See False Representation. causing damage is actionable, 38. no action lies for, without intention that another should act upon it, 1174. False Pretenses. See Indictment. to obtain money by, is actionable, 49. False Representation. See Falsehood— False Pretenses— Fraud— Wife. when actionable, 20, 1174. causing loss of marriage is actionable, 17. by which a person is induced to enter inio a contract, is actionable, though the contract is in writing, and nn warrant is given, I2ig, 1222. but the contract must be repudiated on discovery of the fraud, 1174. made without knowledge of its untruth, but without belief of its truth, 1174, 1177, 1184. unintentional deception, 1175. made for another to act upon, is actionable if damage ensues, 1175, 1208. . by directors, promoters, or officers of public company, 1172, 1180, 1210, 1217, 1305. by directors, whether the company hable, 1180, 1192, i2io. of right of lien, 38, 1176, 1211. respecting the conduct, credit, &c., of third persons, whether individuals or members of a partnership or company, 1178, 1211. fraudulent breach of warranty, 1181. obvious defects, 1181. statements made before sale, whether by auction or otherwise, 1183. that designs of goods were copied from registered patterns, I2il. by a vendor, or others, where the means of knowledge lie peculiarly or exclu- sively within their reach, 1184, 1189. respecting matters which lie as much within the knowledge of one party as the other, 1185. amounting merely to expressions of opinion and belief, e.g. respecting the credit, &c., of a third person, 11 86. to sheriffs, as to the ownership of goods, proposed to be taken in execution, by vendors on sale of real property, 1 188. of title on sales of real property, Ii8g. of title on sales of personal chattels, 1190. except where a man does not sell as owner, e.g., sheriff or auctioneer, iigo. by manufacturers of the quality of the articles they make (or get made) and sell, 1 191. by vendors of an article wanted for a special purpose, 1192. to absent purchaser, 1193. on sale of goods by sample, 1 194. by railway companies as to the time of their trains starting, 1195, 1211. of authority by vendors, agents, &c., Ilg6, 1198, 1211, n. 1388. by landlords in ordering distress, Iig8, 1211. by agents with intent to deceive principal, Iig6, 1211. when principal is liable for, Iig7, i2og. by company, who have registered a forged transfer, 1524. by counterfeiting trade marks, ngg, 1211, 1224. by vendors of articles with trade-marks upon them, or upon which any descripi. tion of the place, country, &c., where the articles were made, is marked, 1201. U> the paragraphs:], INDEX TO THE TEXT. 869 False Representation — Continued. by vendors of hops, 1201. by name of bank, 1202. by provision dealers, 1203. by married women or infants, 1204, 1314. by concealment of defects, 1205. although goods sold "with all faults," 1207. of facts which it is a person's duty 10 disclose, 1205. dangerous nature of articles bailed, 1205. made to A. to be communicated to B., or which are communicated to B., I208i plaintiffs in actions for, 1208. defendants in actions for — principal and agents, 1204. joint-stock companies, 1210. declarations in actions for, 1212, 1213. plea of not guilty in actions for and evidence thereunder, 1215. evidence in actions for — of the false representation, 1216. of the representation having been made to the plaintiff, 1217. that the plaintiff relied on the representation and not upon hi« own judg- ment, 1218. of fraud and falsehood on a written contract, though no warranty is given ia such contract, 1219. of unsoundness in horse, 1221. manifest defects — vice, &c., 1222. in case of counterfeit trade-marks, 1224. damages for, 1226, 1228, 1388. remedies for, in equity, 1225. by bill to compel a person to make his representation good, 1226. by injunction in case of fraud, counterfeit trade-marks, &c., 1232. indictment for, 1229, 1230. money paid under may be recovered, 1 1 79, n. Father. See Children. Felony. See False Imprisonment — Justices. is a tort, but criminal proceedings must be taken before civil, 46. effect of, on title to goods, 493, 494. accusation of, is slanderous, 8. conspiracy to charge a person with, is actionable, 49. arrest for, when justifiable without warrant in house of another, 43s Feme Covert. See Coverturb— Married Woman — Wife. Fences. See Boundary Wall. lessee or tenant must preserve and repair, 325, 422. and may cut wood for, 329. liability of tenant for non-repair of, I96. cuttings of, belong to tenant, 413. duty of railway company to maintain, 244. trespass by cattle from want of, or defective, 378, 379. injuries to cattle, &c., from non-repair of, 243. right to repair of, by one adjoining proprietor against another, 113, 166. servitude of repairing injuries is destroyed by unity of ownership, 184. right of action for injuries caused by non-repair of, 212. boundaiy, property in, 416. property in tr<;es in, 413. cutting of boundary, 376. right of proprietor of boundary to let poisonous clippings fall on adjoining property, 95. declaration in action for non-repair of, 197. evidence in action for non-repair of, 216. 870 INDEX TO THE TEXT. \_The reference, .r. Feree Naturee, keeping animals, liability for, 35. Ferry, interfeience with, how far actionable, 22, 24. owner of, is entitled to compensation under the Lands Clauses Act, if ferry interfered with, 24. declaration in action for obstructing, 197. Ferryman, duties and liabilities of, 680. lien of, 613. Fire, lit on one person's land, but spreading to another's, is actionable, 19. injuries, by, to house, caused by negligence, may be waste, 321, illegality of, adjoining highway, 230. liability for, of landlord on demised premises, 353. of tenant, on demised premises, 353. if fire spreads to adjoining premises, 353, 354. if fire caused by guest, servant, or stranger, 353, 357. if spreading of fire caused by sudden tempest, &c., 353. if fire caused by use of dangerous engine, e.g., steam engine, furnace, &Cq 355-. if arising from pure accident or negligence, 354. if caused by negligence of servant, 357. if caused by explosion of gunpowder, gas, &c., 358. of railway companies from fires spreading to adjoining property, 355. caused by sparks from railway engine, insurance against, how far it affects right to sue for damage caused by, 361, 369- right of tenant or reversioner to sue for injuries caused by, 363, 369. when damages caused by, may be recovered from water company, 59. declarations for negligently keeping, 364. evidence in actions for injuries caused by, 366. assessment of damages for injuries caused by, where several persons interests, 369. and generally, 369. Fireiirorks, injuries from, when and how far actionable, 3, 313. near or on highway illegal, 230. Fish. See Fishermen — Fishery. right of fisherman to, when caught, 487. interference with, when nearly netted, is a tort, 487. rights of lessees with_ regard to, 325. Fishermen, rights of rival, 23. Fishery. See Licence — Salmon. right of, in the sea, 147. right of, on sea-shore, 406. right of, in a navigable or non-navigable river, 147. oyster and mussel, 147, n. rights of riparian proprietors to, 147 right of several, 141. grant of right of, 129. grant of several, in freshwater lake, 407. merger of several, 406, ii. right of, not claimable by custom, 133. right of, when a profit i prendre, 114. right of, where channel of river has altered, 209. iothefaragraphs.l INDEX TO THE TEXT. %Jl Fishery — Continued. right to have weir for purposes of, 20g. ascertainment of right of, by bill of peace, 216. nets impeding, when illegal, 272. destruction of, by fouling the water, is a nuisance, 217. statutable regulations for the management of the pilchard, 40. removal of obstructions to, under Salmon Fishery Acts, 273. licence of, from Board of Conservators, 273, n. Fixtures, removal of, as between heir and executor, 340. as between executor of tenant for life, or in tail, and remainderman, 340. as between landlord and tenant, ei seg., 340. as between outgoing and incoming incumbent, 340. in case of trade, or buildings accessory to matter of a personal nature, 340, 345. agricultural, 342, 343. agricultural, not removable at common law, 340. removable by statute, 343. or custom, landlord's, what are, 34 1, tenant's, what are, 342, 349. ornamental or domestic, e.g., mirrors, conservatories, doors, grates, &c., 242, 342. 344- trade, e.g., brewery, coal mines, canals, cider mills, salt pans, dyer's vats, &c. 340, 342. right to remove abandoned, by contract, 347. removal after expiration or forfeiture of term, 348. removal of, by purchasers, mortgagees, or assignees of tenant, 349. removal of, is waste, 320. removal of, is actionable by reversioner, 421, n. right to, when severed, 533. wrongfully severed, vest in landlord, 363. damages recoverable for severance of, 367. conversion of, 470. are not distrainable, 717. sale of, by auctioneer, only gives right of removal, 524. sale of, by sheriff, may be restrained by injunction, gio. are not " goods or chattels " within reputed ownership clause of Bankruptcy Act, 509. must be taken with house, &c., under Lands Clauses Act, 1052. Flats. See Support. Flood. See Watek. Floors. See Support. Food, selling of unwholesome, is actionable, 1203. Footpath. See Highway. right of ploughing up, 233. through wood, in several directions, not a highway, 301. right of, includes ordinary accompaniments of foot passengers, 301. right of, whether consistent with existence of gate across, if gate allowed to go to decay, 302. prescriptive user of land adjoining by tenants of houses, 310, 313. right of adjoining owner to make carriage-way across, 384. is included in proof of carriage-way, 449. Force, any invasion of another's rights by, is actionable, 17. Forcible Entry. See Assault. Forge. See Noise. 872 INDEX TO THE TEXT. IThe refertnc,, an Forgery. See Banicer — Company. inducing a person to commit, is actionable, 41. conspiracy to procure property by, is actionable, 49. action to recover money procured by, 47. Fountain, penalty for fouling water in, 276. Fraud.. See Contract — Deceit — False Representation. any injury or invasion of another's right by, is actionable, 17, 20, 38. effect of on title to goods, 496, 498. goods obtained by, property in, does not pass, 467. goods obtained by, are not in reputed ownership of bankrupt, 517. effect of, under statue of limitations, 402. evidence of, by unstamped agreement, I2ig. indictment for, 1229, 1232. injunction to prevent, et seq., 1231. interference by Court of Chancery to prevent, where goods in possession of bailee, 476. Fraudulent Preference. See Bankrupt. Freehold Office. See Office. Friendly Societies, remedy for disputes between members of, 58. disputes between members of, referred to justices, may be appealed from to Superior Court, 1004, n. jurisdiction of County Court in cases of, 1331. Fuller, lien of, 611. Funds. See Stock. Gambling House, keeping, is a public nuisance, 297. Game. See Decoy-Pond — Grouse. ' title to, 486. when killed, is the property of the person on whose land it falls, 15. right of lord of manor to, on common, 142. right of lord of manor to, under Enclosure Act, 116. right to, under a reservation in a conveyance of land, 117. rights of lessees with respect to, 325. right to shoot and carry away is a profit i prendre, 114. destruction or chase of, by dogs. See Dog, 35, u., 263. Games. See Gambling House. on highways illegal, 230. Gaoler, liabilities of, for detaining the wrong man in prison, if he has notice of it 928. when must discharge a person committed for contempt of Court of Chancery 928. Garnishment, right of, at common law, 633. Gas. See Gas- Works. injuries caused by explosion of, 33, 358, 581. Gas Works, injury to view from erection of, 5. remedy for nuisances arising from, 275. ' injunction against injury arising from, 293. toth,paragrapks:\ INDEX TO THE TEXT. 87. Gates. See Fences — Highway — Railway. across public highway may be cut down, 270. unless legally there, 234. locking of, across a way, is actionable by the reversioner, 195, 197. erection of, across private way, or carriage way, whether actionable, aoj, Glanders, sale of horses affected with, when unlawful, 6, 7. Glass, manufactory is a nuisance, 217, 219. Glebe. See Ecclesiastical Dilapidations. Goats, sale of diseased, when unlawful, 7. Goods. See Chattels. Governor of Colony, abuse of authority by, is actionable, 42. is liable for trying a civilian by court-martial, 43. Grant. See Crown. easements acquired by, 113. right to use of water by, 91. no man may derogate from his own, 128. Grass, sale of, implies right to cut, iig. Gravel. See Minerals — Sand — Sea-Shore. Groins. See Sea- Walls. Grouse, driving away, when actionable, 20. Guardian, right of, to custody of children, 1254. Guest, injuries to, from dangerous premises of host, 258. Guide Book. See Directory. Gun, accidents from, 582, 584. injuries from bursting of, when actionable, 38. liability for accidents arising from use of, 544- firer of, is liable for fire caused by, 353. firing of, near decoy-pond a nuisance, 217. letting off, on or near highway illegal, 230. false warranty of, 1174. Gun Powder, liability for injuries caused by explosion of, 358. injuries to servants from explosion of, 254. keeping of, when a public nuisance, 297. Habeas Corpus, to test the validity of a commitment by judge of inferior court, 898. to test the legality of a commitment by justices, ion. Hackney Coachman. See Cabman. Harbor. See Port. Hares. See Common. Hay, fires arising from heating of, 354, 874 INDEX TO THE TEXT. [The referents are Health, overcrowding houses, or carrying infected persons through public streets, so as to endanger, is a public nuisance, 297. Hedges. See Fences. Heir-at-lavr, when may sue for injuries to inheritance, 1297. when may maintain trespass on land descended, 444. can not maintain trespass before entry, 419. may sue for detention of title deeds, 631. right of, to fixtures, 340. Highway. See Footpath— Statutory Ccmpensation — Surveyor of High- ways — Turnpike Road Way. title to soil of, 409. if created under Enclosure Act, 409. title to waste land adjoining, 411. user of land of, between carriage and footway by tenants of adjoining houses, 308. title to land adjoining, between road and fence, under Enclosure Act, 452. soil of, remains in owner, subject to right of passage by public, 384. right of persons, cattle, &c., to pass along, but not to remain, 244. right of free passage by carriages, &c., along, free from interruption, 234. use of locomotive steam engines on, 231. right of, prima facie extends to whole space between fences, 313. occupation roads are not, 303. roads up to houses, and nowhere else, may or may not be, 304. of necessity, where no other road exists, 311. dedication of, 300, 308. dedication of, may be inferred from acts, although no intention to dedicate exists, 302. obstruction of, once a year, &c., or by bar, &c., is inconsistent with dedication, 302, 304. dedication of, though owner not known, 302. notice of intention to dedicate to be given to surveyor of highway, 315. no particular time of enjoyment necessary to prove dedication of, 304. tenant or lessee can not dedicate, 306. but consent of landlord may be inferred under certain circumstances, 306. dedication of, over land vested in commissioners, or others, by statute, for a particular purpose, 307. once dedicated to public, is dedicated for ever, 310. limited dedication of, 451. dedication of, subject to right in adjoining owners of depositing goods, thereon, 313- limited dedication of, e.^., for all purposes except carriage of coal, or subject to certain inconveniences and risks, e.g., gates, door-steps, cellar-flaps, open areas, &c., 233, 309. liability of parish to repair, unless washed away by sea, or relieved by order of magistrates, 315, 317. proof of, by evidence of repairs by parish, 312. liability to repair, by adjoining owner, 411. liability to repair rationc clausuras, 316. repair of, by district highway board, 317. remedy for non-repair of, by indictment against the parish, 1044. repair of railway bridges over, and their approaches, 247. repair of damage done to, by railway during construction, 247. obstructions in, by erecting gates, building bridges, houses, &c., 234. obstruction of, by gates, when legal, or not, 309. railway gates across are not actionable, 1040. obstruction to, when actionable at suit of individual, 279. liability for obstructions of by persons, or public companies who employ inde pendent contractors, 283. toth^para^afhs.] INDEX TO THE TEXT. 87s Highway — Continued. trespasses on, by deposit of rubbish, building bridge, &c., 384. removal of obstructions to, when legal, 270. gates placed across, may be cut down, 270. cattle lying in, 270, n. cattle straying on, 313. cattle straying from, when distrainable as trespassing, 379. obstructions in, must not be recklessly ridden, or driven over, 567 obstruction of, by boughs of trees, &c., a public nuisance, 297. trees overhanging, may be cut, 266. penalties on playing games on, obstruction of, or allowing filth to flow on, 23a action or indictment for obstructions in, 33. penalty for encroachments, deposit of rubbish, &c., on, or removing turf from, 313. nuisances in, whether highway be for carriages, horses, or foot-people, are in- dictable, 298. obstruction of, by corporation or railway company, is indictable, 299. when crossed! by canal. See Canal. when crossed by railroad. See RAILWAY. fences between, and canal, 251. ditches of, choked up, are a public nuisance, 297. ruinous houses adjoining, are a public nuisance, 297. railway running alongside of, how far actionable, 1040, 1042. nuisances adjoining, dangerous pits and excavations, steam-engines, lime-kilns, letting off fireworks, &c., 230. negligent quarrying stone near, is indictable, 232. offensive manufactures adjoining, are a public nuisance, 297. collection of crowds in, is a public nuisance, 297. obstruction of, by beer barrels, logs of timber, unloading coals, &c., when a public nuisance, 297. coal holes in, when legal, 297. openings in, when legal, 297. steam engines on, are a public nuisance, 297. telegraph posts, or tramways on, are indictable, 313. carriage of infected persons along, is a public nuisance, 297. unfenced sewers, ditches, or areas alongside of, 232, 233. obstructions in, or near, legalized by prescription, must not be increased, 233. injuries from falling into unfenced holes, areas, &c., adjoining, 228, 260. conditional user of, by public, may be stopped, if conditions not complied with, 300. deviation from, if highway stopped, 300. stoppage of, gives right to pass over adjoining land, 434. deviations from, if highway out of repair, 450. proof of, 45 1. closing of, under an Act of Parliament when actionable, 1041. declarations for injuries from unfenced holes, &c., adjoining, 284. mandamus to restore, if illegally diverted by railway company, 1499. injunction against obstruction of, must be at suit of Attorney-General, 313. Highway Board, powers and duties of, 317. Histories, copyright in, 60. Hops, warranty on sale of, where bags marked with name of grower, place of growth, &c., 1201. Horn, blowing of, when a nuisance, 224. Horses. See Cattle — Glanders — Hounds. liability for accidents arising in riding or driving, 544. 876 INDEX TO THE TEXT. {The references art Horses — Continued. injuries from unslcillful or neglectful management of, 34, 36. unavoidable accidents arising in management of, 585, 589. liability for leaving unattended in a street, 582. liability for negligent attendance of, 35. ' negligence in breaking in in the street, 554. exposure of glandered, is a public nuisance, 297. implied authority to warrant, by servants of horse-dealer or private person, 1209. what is unsoundness in, 1221. public notices on sale of, are binding on purchasers, 1220. injuries to, which have escaped, through defect offences, 212. injuries to hired, who responsible for, 597., injuries to, by dogs. See DOG. 35. wrongful detainer of, can not claim the expense of his keep in mitigation of damages, 648. lien for training or keeping, 611. Hospital, mandamus to master of, 1496. Host. See Guest. Hounds, damage caused by horses following, 462. House. See AiR — Boundary Walls — Building — Company — Fire — Fixtures- Health — Light — Party Walls — Support — Tenant. possession of key of, effect of, 442. negligence in pulling down, 241. non-repair of, by joint tenants or tenants in common, 242. non-repair of adjoining, remedy for, 242. repair of, when upper and lower stories belong to different people, 126. injuries from tilings falling from, into the street, 228. overhanging cornice of, 415, u. injuries to visitors, servants, or family, from dangerous state of, 258. alterations in, by tenant, are actionable, 16. House Bote. See Estovers. Hoyman, is a common carrier, 650. warrants the safety of goods carried, 597. loss of goods by, 681. Hundred, liability of, for damage caused by riot, 418. Hunting. See Hounds. Husbands. See Children — Father — Wife. liability of, for torts committed by wife before or during coverture, 13 13. and must therefore be jointly sued with her, 1313. except in case of divorce, judicial separation, or a protecting order, 1313. of executrix or administratrix is liable for waste, 1313. liability of, for trespass by wife, 377. not liable for false representation by wife, 1204. not liable for acts of wife after a judicial separation, 1241. but is for her subsistence, unless alimony duly paid, 1242. when may sue for injuries to real property or chattels real of the wife, 1294, when for injuries to person, or personal property, 1294. may join causes of action accruing to himself with causes accruing to hiniseli and wife, 1337. when to sue alone, and when wife to be joined in actions of replevin, 760. can not sue his wife for false representation that she was single, 51. right of, to restitution of conjugal rights, 1236. totheparasrafh3.-\ INDEX TO THE TEXT. 2,77 Husbands — Continued. right of, to judicial separation on ground of adultery, cruelty, or desertion, 1337. cruelty, what amounts to, 1238, 1239. desertion, what amounts to, 1240. when entitled to dissolution of marriage, 1243, 1249. if wife a lunatic, 1243. willful neglect, &c., conducing to adultery of wife, 1245. connivance or toleration of adultery, 1246. condonation of adultery, 1248. competency of, to give evidence in cases of adultery, 1262. may claim damages in Divorce Court from co-respondent, 1265. application of the damages by order of the Court, 1270. Idiocy. See Prescription Act — Lunacy. Effect of, under Statute of Limitations, 402. Illness. See Witness. Imprisonment. See Debt — False Imprisonment. each continuance of, is a fresh cause of action, 1361. for non-payment of penalties, 277. for debt is abolished, 921, n. with certain exceptions, 996. Indosure Act. See Enclosure Act. Incumbent. See Rector. is entitled to possession of church and churchyard, though freehold in rector, 405. . injunction against, to prevent waste, 371. Indecency. See Arrest — Bathing. by exposure of person, when a public nuisance, 297. Indictment, against parish for non-repair of highway, 316, IO44. for public nuisances, el seq. 297. for nuisances arising from gasworks, 275. for obstruction in thoroughfare, 50. for the obstruction of a right of way, 195. for nuisances in carriage-way, bridle paths, or footpaths, 298. against corporation or railway company. 299. for placing telegraph posts on highway, 313. for placing tramways on highway, 313. for negligent quarrying of stone near highway, 232. for obstructions in navigable rivers, by wharfs, sunken vessels, &c., 235, 314. for abduction of unmarried girls or women, 1287. for conspirac)', 850. for forcible entry, 383. for non-repair of ruinous house, 240. for fraud, false representation, or obtaining money or goodsiby false pretenses 1229, 1230. for libel or slander, 1171, 1173. costs on, 1431. for pound breach, 735- preferring of, unfounded, when actionable or not, 882. malicious, is actionable, 860. Infancy, effect of, under Statute of Limitations, 402. Infant. See Children — Prescription Ac 1 . when liable in tort, 1352 liability of, for all tort^ except where the cause of action is substantially 8/8 INDEX TO THE TEXT. IThe references an Infant — Continued. founded on a breach of contract, 1314. not liable for false representation, 51. e.g., that he is of age, &c., 1204. is not liable as an innkeeper, 682. when may sue for conversion of goods in his possession, 524. property of, in reputed ownership of bankrupt, 512. illegitimate, is not entitled to benefit of Lord Campbell's Act, 575, n. injuries to, from negligence, 34. injuiy to, while traveling by railway, 545. injuries to, %\hile trespassing on railway, or climbing on a cart, 567. may sue by prochein ami, 1296. Infection. See Cattle — Glanders — Health. Infringement. See Patent. Injunction. See Bankrupt — Bill of Peace. In Equity — against continuance of wrongful act, 1442. instances of, 1442. to avert threatened injury, 1442. against commission of trespass, 465. to restrain disiurb.ince of graveyards, &c„ 1519. to restrain infringement of access to public river, 1442. to restrain infringement of patent right, 1446. damages for, 1441. to restrain infringement of copyright, 1445. lectures, private letters, mss., maps, dramatic or musical compositions, sculp- ture, paintings, designs, &c., 1445. to restrain sale of chattels, 1446. to restrain sheriff from selling landlord's fixtures under an execution, 910. to restrain execution on goods of company in liquidation, 908. to restrain action or execution against a railway company that has filed a scheme of arrangement Avith its creditors, go8. to prevent disturbance of rights incident to the possession of land, 109. ' to restrain the diversion of water, no, 1448. to prevent obstruc.ion to repair of watercourse on another man's land, 112. to prevent obstruction to light, 214. to prevent disturbance or easements granted by parol, 213. to prevent disturbance of right of support, 215. against fouling stream or canal, burning bricks, smoking chimneys, offensive trades, interfeience with light, or storage of inflammable materials, 293. against noise, by ringing bells, 295. against public nuisances, created under statute, in excess of statutory powers or otherwise, 296. against public nuisances, by Attorney-General, 296. or private persons, if individual damage sustained, 296. for obstruction of highway must be in name of Attorney-General, 313. to prevent waste, 371, 374. against tenants or lessees from digging minerals, injurious cultivation, altering premises, &c., 371. against tenants for life, or lessees for lives, mortgagors or mortgagees in possession, 371. against one tenant in common at suit of another, 371. against incumbent or bishop, 371. at suit of infant in ventre sa mere, contingent remainderman, or executory devisee, 371. if committed by stranger, 371. although the title is in dispute, 371. if permissive only, 371. if all the injury has been done, 371. U)thttaragraphs:\ INDEX TO THE TEXT. 879 Injunction — Cantin tied. at suit of one partner against another, 371. if acquiesced in, or delay in coming to the court, 372, 373. at suit of one party, for himself and all others interested, 374. to restrain a company from exceeding its statutory powers, 1443. to prevent unnecessaiy injuiy from the execution of statutory powers, 1084. to restrain public boards, commissioners, &c., from doing acts in excess of statutory powers, 1084, 1086. to restrain nuisances created in the exercise of statutory powers, e.g., the pollution of a river by sewage, 10S5. to restrain commissioners, &c., from creating a nuisance in executing drainage works, to prevent misuse by companies and others of land acquired under statutory authority, 1050. to restrain exercise of statutory power till a condition precedent, e.g., the pay- ment of compensation has been complied with, 1086. to restrain waterwoiks company from taking stream till compensation paid, or security given, &c., 1052. to restrain an application to Parliament for a private act, 10S6. to prevent fraud, 1231. to prevent the fraudulent use of trade-marks, names, &c., 17, 1232. unless the trade-mark itself contains a material misrepresentation, 1232. against bailee, to prevent his parting with goods marked with a counterfeit trade-mark, and against bailor, to prevent action for non-delivery, 1232. to prevent manufacture of counterfeit labels, 1232. to restrain action for calls on the ground of false representation or fraud, n8o, against magistrate?, corporations, or commissioners, 296. interlocutory, for protection of property, 296. not granted merely to protect title, 296. not granted to stop a mere temporaiy nuisance, 220. will not be granted when the act complained of has been done, and nothing remains but to assess the damages, 1449. on application for, legal right of applicant to be decided by court or jury, but an issue may be directed, 1449. against railway companies to enforce compliance with Railway and Canal Traffic Act, 705. to enforce right of stoppage in transitu, 1446. to prevent injury from the effects of intimidation by trades unionists, 22. . against publication of libel, 1089, n. to restrain railway company from setting up plea of accord and satisfaction, 1353- against payment of alimony pendente lite, 1237, n. against patentee from threatening legal proceedings, if he has no intention to follow them up, 1 147, n. against prospective damage, 293, n. suspension of, in certain cases, 293. enforcement of, by sequestration, 293. what acquiescence will preclude grant of, 294. where land has been purchased with knowledge of existing nu' r;>nce affecting it, 294. although plaintiff is more injured by others than by defendam »g4. effect of delay in application for, or acquiescence in the wrong m lained of 1447- costs on, T432, 1440. under Railway and Canal Traffic Act, 1433. in county court, 1332. At Common Law — notice of claim for, may be endorsed on writ of summons, 145^ but can not be pleaded to, 1450. or claimed ex parte, after commencement of action, 1450. 880 INDEX TO THE TEXT. [The reference, an Injunction — Contintie,!. to compel a wrongdoer to pull down a building which interferes with right to light, 1450. not granted in actions of ejectment, 1450. to restrain infringement of patent right, or copyright, photographs, &c., 1451- against erecting a jetty in a navigable river, 407. any proceeding in disobedience to, is void, and parties liable to attachment, 1452. Inn, obstruction of access to, along highway or navigable river, is a tort, 279. Innkeeper, who is, 683, duty of, to provide shelter, &c., for guests, 682. who are guests, 684, 687. duty of, to protect guest from robbery, 684. unless committed by guest's own servants or friends, or by his default, 684, 686. or the guest takes upon himself the exclusive charge of the goods, 684. not absolved from liability by delivering the key of his bedroom to guest, 684. liable for all goods committed to his charge, though placed outside the inn, 684. not liable for accidental fire, 684. nor for injuries to guest's horses from horses of other guests, 684. limitation of liability of, by statute, 685. lien of, 6og, 613. on goods but not person of guest, 688. may retake goods on Which he has a lien on fresh pursuit. 688. can not sell horse of guest for the expense of his keep, except in London, 626 can not rid himself of public duty imposed upon him by providing that he shall not be responsible for the luggage or goods of guest, 656. declaration against, for loss of goods, 695. damages recoverable in actions against, "joi. Inspection, of report of railway officials and medical men to the company, and generally, 1353. n. Inspectors. See Salmon. Insurance. See Policy. effect of, on actions for negligence, 593, 1395. _ 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, 361, 369. Interest. See Judges — Justices — Sheriff. Interpleader. See Bailee. protection by, to sheriff, 909. does not apply to claims for rent, 909. is available for execution creditor as well as sheriff, 909. right of, to bailee, where several persons claim goods in his possession, 633. order in case of, made without jurisdiction, but without objection by parties, il valid, 1336. protection to persons by, in case of mandamus, 1512. Interrogatories, inaction for malicious prosecution, 877, n. in cases of copyright, 60, u. in patent cases in Chancery, 1445, n. Intimidation. &^ Menaces. injunction to prevent, by trades-unionists, 22. totheparas>aphs.\ INDEX TO THE TEXT. 88 1 Iron, manufactury of, adjoining highway illegal, 230. Irrigation. See Water. Jeweler. negligence of, in execution of work, 529. Jobmaster, is not a common carrier, 650. liable for negligence of servant let out with horses to a third person, 551, Joinder. See Action. Joint Stock Company. See Company — Shareholder — Shares. duty of, to register shareholder, 28. Joint-Tenants. See Partners. of deeds or chattels, who entitled to possession of, 629. can not sue co-tenant for detention of goods, 642. rights of survivor of, 1290. one may distrain unless others dissent, 711. avowries by, for distress made by agent or bailiff, 768. possession of, effect of, under Statute of Limitations, 398. engaged in wrongful act are jointly and severally liable, 362. of chattel should join in actions for negligence, 578. each of several, may sue wrong-doer for detention of chattels, 632. should join in actions for conversion of property, 525. must sue jointly for injuries to land, 98, 1300. e.g., for waste, 363. for nuisance, 282. for injury to reversion, 421. Journey's Accounts, writ of, 1362. Judge. See Court of Record — Slander. not responsible for acts done in course of judicial duty, 883. e.g., for slander, in reference to a matter before him, 883. but is for slander in respect of matters into which he has no jurisdiction to inquire, 883. disqualification of, on account of interest, 885. IS liable for acts done without jurisdiction, 884. unless he has prima facie jurisdiction, and the facts depriving him of it are not brought to his knowledge, 886. who is a, so as to be exempt from liability to actions, 890. duties of, can not be delegated to a clerk, and if they are, the clerk is liable for any illegality committed, 891. but not for his ministerial acts, 895, 926. proceedings of inferior, without jurisdiction, may be removed by certiorari into Court of Queen's Bench, and quashed, 892. validity of commitment by inferior, may be tested by habeas corpus, 892. Judgment. See Execution. recovered, when a bar to a second action for same cause in the same or an- other Court, 1355, 1358. effect of foreign, in rem, 1355, n. effect of, in altering the property, 539. effect of, in actions for conversion, in altering the property in the goods con- verted, 522, 530, 1357. how proved, 945. costs in action on, 1425. Judgment Creditor, no duty imposed on to assist the Sheriff to execute a writ of execution, 898, ir. — 56 882 INDEX TO THE TEXT. [Thereftrmc^scre Judgment Creditor — Continued. remedy for, by interpleader, where he has interfered in an execution, and ren- dered himself liable to an action, gog. Jurisdiction, when obtainable by consent, or non-objection of parties to the proceedings, 1336. for acts done without, judges are liable, 884. Juryman, not liable in tort for a wrong indictment or wrong verdict, 883. Jus tertii, when bailee may set up, 643. may be set up by pawnee against pawnor who has obtained goods without title, 613. when carrier can or can not set up, in actions against him for loss of or dam- age to goods, 692, 696, 701. may be set up under plea of not possessed, 639. Justices. See Certiorari — Constable — Judges — Magistrates — Quarter Ses- sions — Slander. jurisdiction of, at Quarter Sessions, g5o. under particular statutes, g6o. e.g., to order accommodation works to be made by railway or other com- pany, 1063, 1084. can not act judicially out of their county, but may ministerially, g6o. jurisdiction of, does not depend upon truth or falsehood of the facts, or the sufficiency or credibility of the evidence, 960. may act, if residing in adjoining county, 961. concurrent jurisdiction of,. in boroughs, 961. borough, jurisdiction of, under Municipal Corporation Act, 962. power of summary conviction by, 963. for felony, 963. jurisdiction of, to inquire into a case which has been substantially decided pre- viously in the County Court, 1355. power of, to issue search warrant, 965. can not act if interested, 968. but may act in matters relating to poor law, local board of health, &c., although rated to the poor, or to the fund of local board, 968. and may adjudicate on complaint or prosecution ordered by themselves in the discharge of a public duty, 968. and may commit for contempt of Court, 968. what amount of interest disqualifies, 968. wrongful detainer by, to answer charges not then made, 969. can not force a settlement upon complainant under threat of conviction, 969. or remand a person without inquiring into chai-ge, 969. acts of, though not duly qualfied, are not void, 970. may adjourn hearing if defendant or prisoner misled by defect in summons, &c., or by any variance between summons, &c., and evidence, 971. commitment by, must be in writing, 972. and for a definite period, 971. statutory forms of, 840. of prisoners for trial, depositions how to be taken, 971. not liable for correctness of charge, or for erroneous judgment, 973. convictions by, on their own view, 974. ..." must have information or charge to give them jurisdiction, 975. and the information must be on oath to justify a warrant to arrest, 975, 977. but not necessarily on oath to justify a summons to appear, 977 requisites of information or complaint, g77. within what time to be made, 978. proceedings thereon, service of summons, &c., 979. drawing up convictions or orders, 987. t, the paragraphs:] INDEX TO THE TEXT. 883 Justices, &c. — Continued. power of, to issue warrants to apprehend material witnesses, 979. can not hear a complaint before time allowed by summons has expired, ^79. must have some evidence of offense charged to justify conviction, 970, 982, 983. can not justify a commitment for one offense by a conviction for another, 979- nor alter the charge to agree with the evidence, 979. must hear the accused, 979. and all the evidence, 1483. can not convict cm a charge not brought before them, 980. but when once a charge is laid, may compel its being proceeded with, 981. convictions by, in excess of jurisdiction, 982. ouster of jurisdiction of, by claim of title, 983. if there is colorable ground for it, and the claim itself is legal, 983. how far protected in the exercise of a discretionary power, 984. can not refuse to act because they think the law unjust, 984. invalid convictions by, upon by-laws, 986. warrant commilment, or conviction by, must show their authority on the face of them, 98S. and describe correctly the offense or subject-matter of complaint, 989. and single out the offender, 990. and show that the offence was committed within the jurisdiction of the justices, 991. 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., 992. adjudications, &c., of, under statute, must show all things necessary to bring the case within the statute, 992. statutory forms of commitment by, 993. immateriality of mere surplusage, 994. are protected by conviction until qunshed, 995. distress or commitment by order of, gg6, 999. for non-p;iyment of poor-rate, 997. for non-payment of costs by complainant on dismissal of charge, 998. can not commit for an indefinite periodiction as well as erroneous judgment, looi, 1022 orders, &c., of, made without or in excess. of jurisdiction, may be treated as void, and action brought, although right of appeal exists, looi, 1022. must generally stay execution pending appeal, 1002. except in bastanly cases, 1002. appeal from, to Superior Couit on case stated, 1004. decisions of, at Quarter Sessions which can not be reviewed by certiorari or mandamus, 1006. committal by, for contempt of Court, 1007. quashing convictions, &c., of, by certiorari, 1005, loil. proof by affidavits, 1009. amendment of orders, &c., on return to, loio. legality of commitment by, may be tested by writ of habeas corpus, loii. may order expense of county litigation to be defrayed out of county funds, 10x3. power of to give costs, 1014, liability of, fur acting maliciously, and without reasonable cause, but not fot erroneous judgment, ignorance, or negligence, 964. liability of, for acts done witliout or in excess of jurisdiction, after conviction quashed, 966. unless they have a prima facie jurisdiction, and the facts, de^;riving them of jurisdiction are not brought to their notice, 967. 8«4 INDEX TO THE TEXT. IThe references an Justices, Ac. — Continued. how far liable for wrongful ministerial acts, 985. liable for omission of cleric to make minute of conviction or order, 987. exemption of, from liability, where a defective conviction or order has been confirmed on appeal, 1003. in actions against, for acts within their jurisdiction, malice and want of probable cause must be proved, loig, 1021. in actions against, for acts without jurisdiction, conviction, &c., must first be set aside, 1019, 1024. except where they have acted corruptly, or in abuse of their office, 1021. may object to being sued in the County Court, 1023. actions against, must be brought within six montlis, 1025. time how calculated, 1025. venue local in actions against, 834. are entitled to a month's notice of action, 1026. requisites of notice, 1027. time how calculated, 1029. tender of amends by, 1028. liability of, where one justice has committed, and another signs the warrant, 103 1, plea of not guilty by statute in actions against, 1033. evidence in actions against — proof of malice and want of probable cause, 1034. damages in actions against, 1039. costs in actions against, 1420. how compellable to act, 1012. prohibition to, 1454. Key, possession of, not evidence of possession of house, 442. Labels. See Injunction. Ijake, title to soil of, 407. grant of several fishery in, 407, n. Land. See Support, title to, by long possession, 388, 403. excavations on one's own, how far lawful, 19. Landlord. &^ Distress — Entry— Lessor — Master — Reversioner — Tenant. when responsible for nuisance on land demised, 283. liability of, for nuisance, although he has parted with the land, 282. when liable or not for nuisance on demised premises, from dangerous excava- tions, fall of ruinous buildings, &c., 290. not liable for repair of drains or sewers on land demised, 284. liability of, for non-repair of house demised, as between himself, his tenant, and third person, 240. may cut trees on land demised, but must make compensation to tenant for damage, 455. may sue for conversion of timber or fixtures severed from inheritance, 533. is not prejudiced by the acquiescence or admissions of his tenant, 211. acquiescence of, in dedication of highway, when to be inferred, 305. not, as a rule, prejudiced by his tenant not opposing use of easements, &c., 151, 156. acquiescence of, in user of easements, may be presumed in certain cases, 151, 158. is entitled to his rent in priority to an execution, but not to an extent, 910, 927. 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, 726 tot;u:paragmphs.-\ INDEX TO THE TEXT. 885 Landlord — Continue d. is entitled, as against mortgagee under a bill of sale of tenant's goods, to more than a year's rent in case of tenant's bankruptcy, 726. liability of, to person whom he directs to distrain, if distress be wrongful, ligS, 1211. Lease. See Leases. right of lessee to deed of, although term expired, 490. assignment of, for benefit of creditors, vests lease in assignee, and renders him liable, if he has acted, for the rent, 502. Leases, are not " goods or chattels," within reputed ownership clause of Bankruptcy Act, 509. Leave. See Injunction — License. Leave and License. See Flea. plea of, in actions for trespass to land, 428. evidence under plea of, 203, 447. Lectures, unpublished are the property of the lecturer, 21. copyright in, 61. injunction against publishing, without author's consent, 1445. Legal process. See Execution. Lessee. See Lease — Tenant. is liable to lessor for removal of soil, 528. right of, to minerals, 382. with right of renewal, how to obtain compensation for land taken under statu- tory power, 1059. right of pre-emption of, to superfluous land taken under statutory authority io6g. duty of assignee of, to pay rent, perform covenants, 29. duty of, to obtain landlord's consent to assignment, 29, u. for lives, injunction against to prevent waste, 371. Lessor. See Landlord — Reversioner — Tenant. may sue lessee for removal of soil, 528. Letters, property in, 492. posting of, is prima facie evidence of their receipt in due course, 1147. damages in actions for detention of, 646. injunction against publishing, without leave of writer or his personal repre- sentative, 1445. Level Crossings. See Railway — Railway Company. accidents at, 248, 547. Libel. See Costs — Slander. distinction between, and slander, 1087, 1088. publisher of, can not defend himself by giving up the name of the utterer, al- though such utterer may be the plaintiff, 1089. 1 147. what writings are actionable as, 1089. anything tending to make a man ridiculous or contemptible, lo8g. but not to say that a man ha<; acted iu bad taste, &c., 1089. or mere puffs between rival tradesmen, 1089, 1115. illegality of the transaction to which the libel relates is an answer to action foi but not fraud ultra the transaction, 1089. malice is implied in, 1090. privileged communications, i.e., communications fairly made, in the belief of their truth, by one person to another in the discharge of some public 01 private duty, whether legal, moral, or social, 1091, lioo, 1153. In course of judicial proceedings, 1092. 8 6 INDEX TO THE TEXT. \_The references a,e J »el — Continued. by military officer on his subordinate, 1092, u. 1094. on opera singer, petitions to the Crown or Parliament respecting conduct of magistrate, mili- tary or other public officers, 1093. 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, 1094. pastoral letters from clergymen, 1095. communications to bishop respecting the conduct of a clergyman, 1096. respecting the character of a person proposing marriage, 1097. between friends to prevent an injury, 1098. 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, 1099. reports of auditors, communication of, to shareholders, 1091, 1 143. reckless and inconsiderate communications, 1100. answers to inquiries made by plaintiff himself, or by others than plaintiff, in discharge of some duty, iioi. giving characters of servants or governesses, 1103. imputing incompetence in particular transaction is not answered by evidence of general competence, 1103. comments in excess of the privilege, 1104. privileged communications addressed to wrong person by mistake, 1 105. reports of trials, 1 106. of proceedings before magistrates, 1107. of speeches in Parliament, lioS. of proceedings at public meetings, &c., 1109. Parliamentary papers,_iio8. by member of House of Commons, 1108. leading articles, reviews, and criticisms in newspapers, mo. remarks by one newspaper, &c. , on another, mi. criticisms upon handbills and advertisements, 11 12. upon sermons or clergymen, 11 13. upon the acts of public men, 1114. by one tradesman on the goods of another, 1115. every publisher of, is as liable for as original libeler, 1140, 1354. every fresh publication of, is actionable, 1355. what is publication of, 1147. action for, can not be brought in, but may be remitted for trial to. County Cour^ 1328. consolidation of actions for, 11 38. plaintiffs in actions for, 1139. defendants in actions for, joint or separate, 1143. corporations, 1 140, 1304. declarations for, 1141, 1143. particulars in action of, 1147, n, 1163, n. plea of not guilty in actions for, and evitlence thereunder, 1144. plea of apology, and payment into Court in actions against newspapers or other periodical publications, 1145. plea of the trulh of the libel, 1146. pleas of justification, where several libels are charged in distinct counts, 1348. evidence in actions for, for the plaintiff, 1147, 1162. proof of publication, 1147. letters written to a man's wife, or by a man's daughter, &c., 1 147. in newspapers, 1 148. libelous songs — printed placards, &c., 1151. application of libel to plaintiff, 1152. defamatory sense of words, where meaning doubtful, 1153, II54' of malice, 1156. of subsequent libels to prove malice, 1156. tothtparasraphs.l INDEX TO THE TEXT. 887 liibel — Continued. of the profession or trade, &c., of the plaintiff, and that the words were writ- ten of him as such, 1161, evidence in actions for, for the defendant, 1 162, 1164. of the truth of the charge or accusation, I163. damages recoverable in actions for, 1164, 1167. mental suffering, &c., 1392, 1393. evidence of apology in mitigation of, 1 168. costs, 1408, 1412, 1418. of the judge's direction to the jury in actions of, n6g. arrest of judgment, or setting aside verdict in actions of, 1170. indictment for, 1171, 1173. costs on indictment for, 1431. injunction against publication of, io8g, n. liiberum Tenementum, effect of plea of, in actions for trespass to land, 426. plea of, is no answer to action for assault, 426. evidence under plea of, 387, 446. License. See Authority — Leave and I,icense. to do an act implies everything necessary to the performance of it, 447. by wife, child or servant, whether valid against husband, father, or master, 447 to sell furniture, 447. to enter and remove furniture goods, &c., 447. to fish, 116, n. not claimable by custom, 133. to enter house, means by the door only, 447, 454. to put goods on another's land. 116. to shoot and carry away game killed, 1 1 6, to cut down timber, 116. to raise and carry away mines, &c., 131. to use way to church, market, &c., 130. to open window overlooking land of licensor, 127. to go on another's land, effect of, 116. to make drain, &c., on another's land, 116. to go on land, implied from grant of trees, crops, &c., 130. of right of way, or passage with boats on a canal, 132. implied from owner to finder of goods lost to keep them, unless demanded by owner, 467. to seize chattels is merely personal, and can not be assigned over, 728. of pleasure extends only to licensee, but of profit extends to servants of licensee, 430. to enjoy easement or profit i prendre prevents it from being enjoyed as " of right " under Prescription Act, 173, 204, 436, 437. to company to enter on land scheduled can not be revoked, 1053. coupled with an interest, or that has been acted on and expense incurred, is not revocable, 177, 201, 213, 428. otherwise it is, 201. is revoked by transfer of property, 447. revocation of, may be shown under a traverse of the right stated in the declara- tion, 201. will not suffice for the creation, but will for the destruction of an easement 177. obtained by misrepresentation or deceit, or on a misunderstanding, is a nullity 447. Licensees. See Patent. Lie. See Falsehood. tiien, of agisters of cattle, 612. INDEX TO THE TEXT. [The refir,nc,s an liien — Continued. of common carriers, 676. of rail or steamboat company for charges of food for animals carried, 649. of publishers, 614. ^ of agents acting for undisclosed principal, 614, of factors and brokers, 615, 6l15, 625. of bankers, 617. of attorneys or proctors, 618. of unpaid vendor of chattels who has not parted with possession, 609. of lenders of money upon deposit of title deeds or other securities, 609, 613. of innkeepers, common carriers, shipowners, salvors, brokers, auctioneers, &c., 609, 613. of shipwrights, printers, and other workmen, who have repaired or bestowed labor on goods, 609, 612, 614. of vendor of land sold to railway company for costs of arbitration, 1086, a. of coachmaker, 613. of coach proprietors, 676. of dock companies, 623, 624, of innkeepers, 688. of livery-stable keeper, 612. of pawnbrokers, 609, n. of warcnousemen, 6l2. of ferrymen, 613. of town clerk or steward of manor, 618. of certificated conveyancers, 619. of shipmasters or shipowners, 620. for freight, 6zi, 626. of consignees, 622. maritime, 611, n. particular or general, 610, 614. may exist, though arising out of an immoral consideration, 609, by express contract, 623. by custom of trade or eipress agreement, 611, 614, 623. can not exist if at variance with the express or implied conditions on which property was received, 612, 614. or on goods deposited for a particular purpose, 612, 614, 618. can not exist if no work has been done upon chattel deposited, 612, or be claimed, generally speaking, for an antecedent debt, 612, 614. or for goods sold on credit, 612. not destroyed, though remedy for recovery of debt be barred by Statute of Lim< itations, 609. is destroyed if bill or note taken for debt, 6i2, 618. can not be obtained against *he will of the owner, 483. wrong-doer can not obtain, 539. wrong-doer can not create, against true owner, 613, 617. when a servant may create, as against his master, 613. is lost by abandonment of possession, 626. is extinguished by tender of debt or charges due, 628. put an end to by wrongful sale, 482. can not be assigned or transferred, 626. distinction between, and pledge to secure repayment of money, 626. seizure by sheriff of property subject to, 626. statutory power of sale under Merchant Shipping Act in discharge of, 627. conversion of property by person claiming right of, 482. effect of liquidation on, 609, n., 618, u. must be specially pleaded, 640. right of, may be set up under a plea of not possessed, 530. false claim or representation of, when actionable, 38, 1176, I2II. Light. See AiR — Statutory Compensation. right to natural amount of, 169. h tht^'^aphs:\ INDEX TO THE TEXT. 889 Xjight — Continued. right to, acquired by unfinished house, 169. right of, only belongs to houses, and not to open yards or gardens, 206. ; grant of right of, 128. i right to, under Prescription Act, 152. i right to, how obtained by prescription, 167, 169. must be over land of another, 167. enjoyment of, subject to rent, 167. right to, over land let on lease, 151. right to, is determined by the size of the window, exclusive of muUions or other partitions in it, 214. right of obstruction of, where windows are enlarged, 269. what diminution of, is actionable, 208. partial obscuration of, for a long period, does not entitle a person totally to destroy, 294. right to, suspended during unity of possession, 168. right to, is extinguished by unity of ownership, 184. right to, destroyed by an obstruction erected by permission of the possessor of the easement, 177. abandonment of right to, by permission given to adjoining owner to do some- thing, involving expense, which will interfere with it, 213. abandonment of right of, by overt acts indicating intention to abandon, but not by mere non-user, 178. right of, when lost by alteration in windows, 178. obstruction of, by tenant is actionable, 195. by reversioner when actionable, 196. by stranger is actionable, 196. interruption in the enjoyment of, 170. obstruction of, is a nuisance, 222. obstruction of, is an injury to the reversioner as well as tenant, 195. obstruction to, may be removed though on another's land, 266. obstruction of, not allowable under Metropolitan Act, 208. declaration for injury to right of, 198. by reversioner, 198, 212. injunction to prevent obstruction to, or interference with, 214. what diminution of, sufficient to justify an injunction, 214. damages for obstruction of, in Court of Chancery, 214. interference with, may be restained by injunction at common law, 145a Lighterman, is a common carrier, 650. liime-Kiln, is a nuisance, 217. illegality of, adjoining highway, 230. liimitations. See Statute of Limitations. Lions. See Animals. Liquidation, title of trustee under, 503, n. distinction between, and composition with creditors, 503, n. filing petition for, is an act of bankruptcy, 505. effect of, on distress;, attachment, or execution, 724. effect of, on execution, 908. Liquidator. See Official Liquidator. Ijivery. See Servant. Livery Stable Keeper. See Horses. is not a common carrier, 650. Local Board. See Mandamus. by-laws made by, 56. 890 INDEX TO THE, TEXT. [The references are Local Board of Health, can not pollute river, &c., by pouring in town Sewage, 1049. Locomotive. See Steam Engine. Lodgings. See Distress. keeper of not an innkeeper, 683. liability of keeper of, for loss of lodgers' goods, 690. London. See Metropolis. statutory powers for removal of dangerous buildings, in, 266, 274. Lord Mayor's Court, prohibition to, 1453, 1460. Lord of Manor. See Bill of Peace — Common. is the owner of the soil of the common, 144. right of, to hares, &c., on common, 144. may sue for injuries to trees, 421. may sue a stranger for trespass in seizing estrays or wrecks, 533. right of, to enclose, 134. right of, to work mines, under an Enclosure Act, 215, right of, to game under Enclosure Act, Ii6. duty of, to hold court, 30, mandamus to, to admit copyholder, 1495. Luggage, what is,— deeds carried by an attorney, rocking-horse, bedding, chronometer, &c„ 649. Lunacy. See Idiocy. Lunatic, can not sue or be sued for divorce, but may for judicial separation, 1244, dangerous, may be arrested, 8ig. statutory provisions for detention, Sig. Machinery, are " goods and chattels " within reputed ownership clause of Bankruptcy Act; 510. 514- Magazine, copyright in articles published in 60, n. no copyright in title of, 60. Magistrates. See Justices. may remand a prisoner by word of mouth, and without warrant, 800. duly of, to grant certificate of dismissal of case of assault, if applied for, 837. injunction against, 296. Malice. See Malicious Prosecution. causing damage is actionable, 40. not a necessai-y ingredient in a tort, 40. is implied in libel or slander, logo, in the assertion of a legal right, e.g., in bringing action, is not actionable, 863 unless brought in the name of a pauper or insolvent, 86j. in levying executions for larger sums than is due, 865, in issuing extent at suit of Crown, 866. in petitioning for adjudication of bankruptcy, 867. in causing search or distress warrant to issue, 854, 859, in petitioning for adjudication in bankruptcy, 867. in abuse of legal process, 868. in detention of judgment debtor, 869. in making arrest, 870. in discharging a soldier, 861. fothifara^aphs:\ INDEX TO THE TE^T. 891 Malice — Continued. in obtaining a warrant of distress for poor-rate against a banlcrupt, 854. evidence of, 40, 878. from admissions of defendant, 854. in action of libel or slander, 1 1 56. in actions against newspapers for libel, 1 145. in actions against justices, 1034. want of probable cause is evidence of, 853. but evidence of malice is not evidence of want of probable cause, 853, 863. Malicious Prosecution. See Costs — Malice — Peace. is a tort, if with malice and want of probable cause, 852. what is evidence of malice and want of probable cause, 853, 863, 880. by persons who manifest a consciousness of the innocence of the accused, 854. by persons who put the criminal law in motion to obtain payment of a debt, or restitution of goods, 854. under advice of counsel, 855. by persons bound over to prosecute, where the proceedings originated from malice in the first instance, 855. by persons after they have obtained knowledge of the innocence of the accused, 855- by complaint of felony, &c., made to a magistrate, upon which the magistrate issues a warrant, 856, 859. by continuance of proceedings commenced without a person's knowledge, 857. by causing .search-warrant to issue, 859. by preferring indictment, 860. before court-martial, 861. by proceedings in bankruptcy, 867. conviction, unreversed, or adjudication in bankruptcy, is an answer to an action for, 858, 867. liability of corporation for, 872. action for, can not be brought in, but may be remitted for trial to, county court, 1328. who to be defendants in actions for, 872. persons prosecuting through an agent, 872. railway company, 8 72 . action for, a bar to a criminal information on the same sub; '* matter, 873. declarations in action for, 874. pleas in actions for, not guilty, 875. of justifications, 876. interrogatories fn action for, 876, n. evidence in actions for, for the plaintiff, 877, 88 r. proof of prosecution and acquittal, 879. proof of malice and want of probable cause, 880, 881. evidence in actions for, for defendant, 881. oral evidence of admissions of plaintiff before magistrates, though not taken down in writing, are admissible in actions for, 973, n. damages recoverable in actions for, 882. signing charge-sheet, and appearing to support charge, is not necessarily the commencement of, 1328. not barred by a recovery of judgment in an action of a false imprisonment, 849. 1355- Mandamus, Prerogative writ of — object of, 1481. issue of, is discretionary with court, 1481. to enforce statutory, corporate, or public duties, 1482. unless their performance has become impossible, 14S3, 1484. 892 INDEX TO THE TEXT. \^The r.Jerences an Mandamus — Continued. to mayor and burgesses, lords of manor, and others, to hold courts, 1482 1483. to judges, magistrates, &c., to hear and adjudicate, and generally to perform the duties of their office, 1483. to quarter sessions, recorders, justices, and judges of inferior courts, 1483. except county courts, 893, 1483. to justices, to grant a certificate of dismissal of case of assault heard before them, 837. . 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 deliver up keys ; to cor- porations, to permit inspection of minute-books, &c., &c., 1484. although the time prescribed by statute has elapsed, 1484. to Crown, 1484, i486. to overseers or clergymen, to bury a pauper, 1485. where there is another remedy at law equally effectual, i486, to public officers of the Crown, to pay over money, i486, 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., 1487. to restore or admit a person to a freehold office, e.g., parish clerk, clerk of the peace, &c., 1488. freehold office, how forfeited, or vacated, 1489. to restore to offices held at will, will not be granted, 1490. instances of such offices, 1490. to medical counsel to restore name of medical man to the register, 1492. to test the validity of an election, e.g., of churchwardens, 1493. to elect churchwardens, sexton, or organist, 1494. to compel institution to public office, wliere a person has been duly elected, or appointed, e.g., a churchwarden, parish clerk, or sexton, prebendary, dis- senting minister, &c., 1495. but not to private offices, e.g., secretary of company, vestry clerk, &c., 1495. or to a presentative benefice, 1495. to admit copyholder, 1495. to joint-stock companies to compel them to perform their duties, 1496, 1499. to register shareholder, 1496. to admit director, 1496. to register probate of will, or transfer of shares, 1496. to make calls to discharge a debt, 1497, 1498, 1506. to restore a highway illegally diverted, 1499. to make compensation, and to take the necessary steps for ascertaining it, 1061, 1499. to allow inspection of register, 1496. to chartered companies and corporations — to admit a member, 1496. to produce books' at public meetings, 1496. to affix common seal, 1496. to allow inspection of corporate records, by-laws, &c., 1496, to commissioners, local boards, &c., to levy rates to discharge a debt, 1498. to make compensation, 1500. to court of quarter sessions, 1501. to churchwardens to allow inspection of parish accounts, 1504- instances where it will not be granted, 1484. will not be granted where a visitor has been appointed by the founder, liffl. effect of delay in application for, 1501. previous demand of performance necessary, 1505. is in effect a civil action, 1511. proceedings in, 1502. in case of election to corporate offices in borough, 1503. requisites of writ, 1505. lofhe paragraphs.] INDEX TO THE TEXT. 893 Mandamus — Continued. in case of impossibility of performance, or alternative performance, 1505. objections to, if appearing on the face of it, may be made at any time, 1513, 1519- persons, to whom directed, 1506. corporations, lords of manor, &c., 1505. service, 1507. return, 1509. impossibility of performance, 15 10. pleas, or demurrer, to, 1511, 1514. interpleader order, 1512. error on, 1514. damages and costs, I511, 15 14. costs, 1432, 1483, n. judgment, non obstante veredicto, 1516. action or information for false return to, 1517. attachment for disobedience to, 1518. In an action : — in what actions may be claimed, 1517. but may be claimed separately, 1519. lies, whenever a duty is imposed by statute on a public company, &c., in the performance of which the plaintiff is interested, 1520. instances of, registration of probate and admission of executor on register, registration of shareholder, &c., 1520. to local board, or commissioners, to levy a rate, 1520. can not be brought to enforce mere payment of debt or damages, 1519. for instance, for the salary, expenses, &c., of a clerk of commissioners, 1521. declaration, pleadii-»gs, and judgment, 1519, 1522. Manor. See Common -Lord of Manor — Pasturaoe — Steward. claim by customary tenants of, to turbary, 115. Mantrap, setting, a misdemeanor, except in a dwelling-house, 226. Manuscript, can not be used, copied, or published, without the consent of the author, 21. injunction against publishing, without consent of the author, 1445. MaD%, c^yright in, 60, Market, interference with, how far actionable, 22, 25. obstruction to public, is a nuisance, 222. tolls at, on the slall, or article sold, 26. must be reasonable, 26. sale of horses by auctioneer in, 26, n. right to erect stalls in, an easement only, 384. by-laws for the regulation of, 56, n declaration in action for obstructing, 197. Market overt. See Sale. Marriage. See Husband — Wife. legally, is the voluntary union of two persons for life to the exclusion of all others, 1243, u. loss of, caused by slander, is actionable, 27. loss of, from fraudulent misrepresentation, is actionable, T7. effect of, on proceedings in action, 1326. how proved, 1265, 1267. Marriage Settlement, powers of the Divorce Court over, 1251. 894 INDEX TO THE TEXT. [The r^fermces an Married Woman. See Wife. false representation by, that she. is a feme sole, is not actionable, 1204. Master. See Principal. liability of, for acts of servant, 36, 37, 234. not liable for acts of servants not appointed by himself, but by some third person, e.g., a contractor, 36. liability of, for negligence of servant in ordinary course of employment, 550^ 579, 5 8 8, 1309. in case of jobmasters, 550. in causing explosions of gas, fires, &c., 357. is entitled to indemnity from the servant for the latter's negligence, 37. liability of, for wrongful acts of servants, workmen, or persons acting by his direction, 1312. for trespass or injuries to land committed by servant, 9S, 105, 422. trespasses committed by servant in charge of cattle, &c., without authority 377- in the creation of a nuisance, 283. for conversion of property by his servant, 526. for illegal distress by bailiff, or servants, 761. when estopped from denying authority of servant, 1312. how far liable for injury to his servant, in the course of his employment, 564. duty of, to take reasonable precautions for security of his servants, 254, 256. bound to protect his servant from latent dangers known to him, but not to his servant, 564. bound to comply with statutory regulations for safety of servants or work- men, 564. not liable for injuries to servants from dangerous employments, if danger is known to the latter, 255, 256. unless duty, e.g., of fencing machinery, be imposed by statute, 56. how far 1-able for injury to one servant (or any one helping him gratuitously) from negligence of another, 257, 565. may sue for injuries to his servant, 1293. when entitled to sue for assault on servant, may sue for the loss of service of servant through tortious act of another, 1272, 1280. unless such act be a breach of contract, and the contract is not with him, 1272. e.g., for loss of luggage, ser.t by his servant by railway, as the contract is not v/ith him, 12S8. may lawfully chastise his apprentice, 840. Master of Ship. See Shipmaster. may be liable for negligent navigation though owner is not, 556. duty of, in case of collision, 556, 55S. negligence of, 556, 563. non-observance of statutory or Admiralty regulations, 558. damage to cargo, 560. goods damaged on the voyage, 561. negligent stowage, 562. warrants the safety of goods carried, 597. lien of, 620. Mayor. See Sheriff. is liable for refusing a poll at elections, 40. duties of, at elections, 41. Meat. See Food. diseased, 2(>6, n. Medical Cotincil, mandamus to, 1492. X^thcparagrafhs^, INDEX TO THE TEXT. 895 Menaces, injuries caused by, are actionable, 20, 22. Mesne Profits, action of trespass for, 464. Messenger, under search-warrant of Court of Bankruptcy, may break open house, &c., gZf, Metropolis. See Arrest — London. Metropolitan Building Act. See Light — Penalty. no duty imposed by, of protecting adjoining house, when your own is pulled down, 241. Military Officer, is liable for abuse of authority, 43. but not for acts done by command of superior officer, 43. can not be sued for bringing a subordinate officer before a court-martial, 51. arrest by, when actionable, 1307. quartered abroad, security for costs by, 1439. Mill. See House — Water. right of water flowing to, 160. right to have grain ground at, 197. alteration of premises by lessee of, by altering right of water, or changing nature of mill, is waste, 325. is not entitled to wind to work its sails, 206. carrying on, may be a nuisance, 224. interference with, by Metropolitan District Board, 105 1, declaration in action for obstruction of, 197. MUler, lien of, 61 T. Minerals. See Mines. right of lessee in lespect of, 382. wrongfully severed, vest in landlord, 362. injunction against getting, by lessees or tenants, 371. Mine-Owner, liability of, for acts of persons appointed by his agent, manager or steward, 36. Mines. See Coal — Minerals — Shaft — Support. grant of right, 129. on demise of, right to support of service is implied, 85. right to take when a profit a prendre, 114. rights of rector with regard to, 337. rights of lessees with regard to, 325. tenants for life, 328.. right to search for, &c., can not be claimed under Prescription Act, 153. title to, not barred by non-user for twenty years, 390. under railways, 215. right to compensation for severance of, 124. sinking of, is lawful, until it injures your neighbor's land, 19. trespasses in, 382. , injuries from defective state of shaft of, 257. injuries to, from water from adjoining mines, 94. water descending into from another mine in the natural course of drainage is not actionable, 1049. water flowing from. See Water— Watercourse. • Minor. See Children — Infant. Misdemeanor, committal of, is actionable, 49. accusation of, is slanderous, 8. 896 INDEX TO THE TEXT. \Th references «t MiBJoinder. See Amendment. Misrepresentation. See False Representation. license obtained by, is a nullity, 447. Model. See Sculpture. Mortgagee. See Fixtures. ..•■... rights of entry of, under Statute of Limitations, 404. may distrain under an agreement in mortgage deed, 706, n. when may distrain for rent previously paid to mortgagor, 711. in possession, injunction against, to prevent waste, 371. Mortagor. See Owner. not a tenant at will to the mortgagee within the Statute of Limitations, 393. may distrain in name of mortgagee, 711. injunction against, to prevent waste, 371. Mother. See Children — Wife. Municipal Corporations, by-laws made by, 54, 56. Musical Composition. See Copyright. unlawful representation of, 63. Mussel. See Fishery. Name, assumption of, is not actionable, except where it is connected with a trade, business, periodical publication, &c., and is assumed for the purpose of fraud, 1232, 1232, n. Naval Officer. See Military Officer. is liable for abuse of authority, 43. but not for acts done in pursuance of command of superior officer, 43. can not be sued for bringing a subordinate officer before a court martial, 51. not liable for negligence of subordinate officer in carrying out his orders, 30, 558. Navigation. See Commissioners of Navigation — Conservators — Negligence —Ships — Water. Navigation Company. See Canal Company — River. Negligence. See Waste. ■■ distinction between, and inevitable accident, 544. torts founded on, 33. must be proved affirmatively, 33. " gross," meaning of, 33, n. creates no cause of action, unless it involves some breach of duty, 1338. where damage caused by, is partly also caused by neglect of a third person, 33 of common carrier. See Common Carrier. of bailor in not disclosing dangerous nature of goods bailed, 654, 1206. of coach proprietors, 545, 548. in the construction of buildings to which the public are admitted by payment, 284. of persons erecting race stands, &c., 548. in driving, 549, 553. in breaking horses in the street, 554. of foot passengers, 555., in navigation of vessels, 592. liability for, though plaintiff is insured, 593. of owners or masters of ships, 551, 563. non-observance of statutory or Admiralty regulations, 558. if naval officer is on board and navigates the ship, 55S. causing damage to cargo, 560. goods damaged on the voyage, 561. U theparasraphi.-\ INDEX TO THE TEXT. 89/ Negligence — Contin ued. of naval ofScers, 558. of masters causing injury to their servants, 564. of one fellow-servant causing injuiy to another, 257, 565. of telegraph companies in the delivery of messages, 607. of contractors and sub-contractors, 283, 580, 581. in leaving dangerous articles in places vi'here injury is likely to occur, 583 in leaving horses unattended, 582. of skilled workmen, professional men, chymists, &c., 569. of building owner under Metropolitan Building Act, 569. of attorney and solicitors, 570, 575, 589, 1361. of partners, 570, n, 583. of surveyors and valuers, 572. of bank-managers or bankers, 573. of directors, 574. of ferrymen, 579, 680, 681. of consignors or bailors of chattels, 32, 33. duty to give notice of dangerous or fragile nature of chattels consigned or bailed, 32, 33. of bailors and bailees, 595, 607. of accountants, 13C2. by Metropolitan District Board, 105 1, of clerk of court of justice, 896. of sheriff in the execution of writ, 897. in dealing with goods in possession of consignee or bailee, 467. in the management of gas, 358. of broker or agent on purchase of goods, Iig6. of railway companies. See Railway Company. in delivery of cattle, 244. in the management of stations, 245. in the management of gates at level crossings, 248, 249. by sending small boys in charge of cattle, 259. in not keeping accommodation gates across railway closed, 2;o, 259, in the management of canals, docks, wharfs, &c., 251. in the performance of work under powers of an Act of Parliament, 1041, 1045. of board of public works, trustees, commissioners, contractors, and others, in the performance of work under a statute, 1043, 1045. action lies for, though the injury is done by persons acting under an Act of Parliament, 1079. in the management of guns or horses, 544. in concealing the dangerous nature of things bailed to be carried, 544. of carriers of passengers for liire, 54.5, 549. in quarrying stone near highway, 232. of innkeepers. See Innkeeper. in running against telegraph cables at the bottom of the sea, 236. in pulling down houses, 241. by corporations, 1304. contributory by the plaintiff, 33, 34. what is, 589. disentitles injured or killed persons from recovering, 565, 567, 575. if an immediate co-operative cause of the injury sustained, 568, 589. must be direct, and not remote or indirect, to be an answer to the actios, 34. 35- by a mere child, 34. is provable under plea of not guilty, 286. assault resulting from acts of, 788. master responsible for servants, 579, 586. but not for that of contractor employed by him, but exercising an independent employment, 579, 581. of servant, liability of master for, 550. II.— 57 898 INDEX TO THE TEXT \Tfu refer^nc., art Negligence — Continued. causing fires. See FiRE. causing burning of house is waste, 321. where death is caused by, 575, 586, 594. jurisdiction of Admiralty in cases of collision between, or damage caused by,. ships arising from, 576. plaintiffs in actions for, 577, 631. joint owners, &c., 578. defendants in actions for, 579, 584. contractor and sub-contractor, 580, 581. joint proprietors, or wrong-doers, 583. declaration in actions for, 584. against bailees, 635. pleas in actions of, not guilty, 585. contributory negligence admissible in evidence under, 585. or inevitable accident, 585. evidence of, for the plaintiff, 586. prima facie proof of, from very occurrence of accident or loss, 33, 355, 545i 546, 607. loss by theft is prima facie evidence of, 663. prima facie evidence of, in case of goods on board ship injured by oil, 664. need not be proved in actions for injuries from ferocious animals, 290. evidence of, for the defendant, 589. damages recoverable for, 590, 593. expense of employing steam-tug, medical expenses, 1388, 1390. all reasonable consequences of, but not unreasonable and unexpected conse quences, 35. Nets, right of landing, how acquired, 151, right to hang and dry on another's land, 113. custom to dry on seashore, 147. impeding navigation of river, or passage of fish illegal, 272. New Assignment, 1366. Newspaper. See Libel — Malice. copyright in title of, and articles published in, 60, 61. shares in, in reputed ownership of bankrupt, 510. bill of discovery against publisher of, to ascertain the name of proprietor, 1 149' New Trial. See DAMAGES, costs on, 1426. Nitro-Glycerine, carriage and manufacture of, 649. Noise. See Injunction. making of, when a public nuisance, 297. by forge or workshops, 217, 224. unless a prescriptive right has been obtained, 224. nuisances arising from, not actionable by reversiorer, 282. Non-Joinder. See Amendment. Notes. See Bills. Not Guilty. See Evidence — Pleas. plea of, operates as denial of breach of duty or wrongful act, 1343. in actions against master for negligence, of his servant, 1343. in actions for slander, where the words are not actionable without special damage, 1353. in actions of libel or slander, and evidence thereunder, 1 144. in actions for the obstruction of easements and profits 4 prendre, 19^ in actions for nuisance, iotktparagraths:\ INDEX TO THE TEXT. 899 Not Guilty — Continued. in actions against bailees for loss of, or injury to, chattels bailed, 636. in actions against carriers for loss of, or damage to, goods, 697. in action for seduction, and evidence theieuncler, 1281. in a;ctions for false representation, and evidence thereunder, 1215. in actions of trespass to land, 425. in a-tions for waste, 366. in action for assault, 835. and evidence thereunder, 835. in action for malicious arrest, malicious prosecution, or malicious proceed-" ings in bankruptcy, 875. evidence necessary by plaintiff under p'ea of, 203. Not Gtiilty by Statute, effect of, in actions for the obstruction of easements and profits a prendre, 200. in actions against justices or constables, 1033. in actions of trespass, or on the case for an unlawful distress, 771. in actions for assault and false imprisonment, and evidence thereunder, 836. not available to railway, gas, or other companies, local boards of health, &c., except under a special Act, 1080. not allowable under local statutes, 1344. Notice, of distress, 741. to abate a nuisance, when necessary, 280. if nuisance is on land of another, 266. to adjoining proprietor, before pulling down ruinous houses in London, 268, of special damage, 542, n. requisites of, under the Carriers Act, 657. of act of bankruptcy, what sufficient, 50. of assignment of chose in action, 5122. Notice of Action. See Declaration. who entitled to, 1023. gas companies, railway companies, toll or tax collectors, revenue officers, and land tax commissioners, 1075. contractors under local board ,'of health, for Metropolis Local Management j Act, 1076. surveyors of highway, highways boards, &c., 1077. constables and otliers, intending to act under an Act of Parliament, 821, S23. persons acting in execution of Larceny Act, or Metropolitan Police Act, 823. county court judges, 930. county court bailiffs, 933. justices, 1026. may be given before the conviction is quashed, 1026, requisites of, 102S. to be given one month before, 826. what particulars must be contained in, 827. tender of amends after, 1077. defense of want of, must be specially pleaded, 1080. proof of, 1083. Notice to produce. See Evidence. Notice to quit, waiver of, by distress, 710. Notice to treat, is binding as a statutable agreement, 1059, n. Novel, dramatising of, whether an infringement of copyright in the novel, 63. Nuisance, what it is, and instances of, 217. 900 INDEX TO THE TEXT. ]T/urifirtntesare Nuisance — Continued. corrupting water with gas refuse, 71. carrying on noxious trade, 71, 71,11. turning out diseased cattle, &c., on unenclosed knd, 71. exposing diseased cattle, &c,, for sale, 71. caused by construction or maintenance of gasworks, 1041. penalties and remedies for, 275. steam threshing machines, 230, n. keeping ferocious animals, 261, 265. keeping pigs, 54. non-repair of sewers, drains, and water-courses, 218. on highways, 230, 234. adjoining highways, dangerous excavations, steam engines, lime-kilns, letting off fireworks, 230. ringing bells, 295. necessarily created under an Act of Parliament is not actionable, 1040. public, is actionable if special damage sustained, otherwise not, 279, 297. inducing a person to create, is actionable, 41. every person guilty of creating of, by himself or his servants, is liable for, 283. unless works ordered do not necessarily create a nuisance, and an indepen- dent contractor is employed, 283. every person ordering the act producing, is liable for, 283. where several join in creating, 266, n. all persons liable for, are liable jointly as well as severally, 283. when reversioner liable for, 195, 222. although he has parted with the land, 222. tenant always liable for, 222. liability for, though no longer in possession of land, 281. tenant and landlord, when rpsponsible respectively for, 283. liability of infant for, 1314. no answer to action for, to say that the trade is carried on in a fit place, and is a benefit to the public, 2ig. continuing, 1072. is a fresh injury, 281. and actionable so long as it continues, 292, 1356, 1361. abatement of, in case of commons, 267. removal of ruinous buildings in London, 266, 268. where limited right is exceeded, 269. by pulling down house, under statutory powers, 266. by order of magistrates, 266. notice to abate, when necessary, 280. when an entry justifiable on another's land to abate, 266. abatement of, no defense to an injury already suffered, 280. expense of removal of, how recoverable, 266. penalties for the suppression of, 71. » by-laws for the suppression of, 54, 278. who to be plaintiffs in actions for, 282. joint-tenants or tenants-in-common of property affected, aSS. who to be defendants in actions for, 283. declarations for, 284. effect of pJea of not guilty in actions for, 286. evidence in actions for, for the plaintiff, 290. for the defendant, 291. damages recoverable in actions for, 292. _ prohibition formerly issued against public, 296. indictment for public, 297. instances of, 297. in carriage-ways, bridle-ways, or footpaths, 398. injunction against, 293, 296. lothefamgraphs:] INDEX TO THE TEXT. 901 Nuisance — Continued. e.g., the pollution of a river by sewage, 1085. if created under statute, 2g6. public, injunction must be at suit of Attorney-General, 896. if land purchased with knowledge of, 294, if acquiesced in, 294. if only temporary, Occupation, evidence of, in actions for nuisance, 290. Occupier. See Tenant. Offer. See Compensation. Office, freehold, what is, how forfeited, &c., and instances of, 1489. Officer. See Naval Officer. Official liquidator, may sue directors for losses occurring through their misconduct, 574. Omnibus. See Highway. liability of proprietor of, for loss of luggage, 653. "nursing" by rival omnibus is actionable, 1304. Omnibus Proprietor, liable for the acts of his servants in course of his employment, 36, Opera. See Copyright — Musical Composition. Optician. negligence of, in execution of work, 569. Outfall. See Drainage — Water. Overhanging. See Cornice — Trees. Owner, mortgagor is, for repaying expenses incurred in repair of sea-wall, 318. who is, under a building agreement, or Public Health Act, for repaying paving expenses, 318, n. meaning of, in Metropolitan Building Act, 268, 274. Oysters. See Fishery. right of taking on sea-shore, 406. obstructions caused by, in bed of navigable river, 235. Packed Parcels. See Railway Company. Paintings, i'l?^ Copyright. sale of, when it passes right to copy, &c., 67. Palace, no execution can be levied in, 908. Parent. See Children. may sue for injury to his child, or seduction of his daughter, if loss of service caused thereby, 1274. absence of daughter from parent's house, 1275. under a pretended hiring, 1276. , if daughter a married woman, 1277. if his own misconduct has conduced to the seduction, 1275. may lawfully chastise his child, 840. Parish, can only act by vestry meeting, and poll, if demanded, ip44. liability of, to repair highway, 315, 317. boundary of, where highway separates it from another parish, 409, n. 902 INDEX TO THE TEXT. im reference, att Parish Clerk, has a freehold in his office, 1488. Parliament. See Libel. hindering a person from voting at an election of members for, is a tort, 40. imprisonment by order of colonial, 888, n. Parson. See Rector. Particulars, in action of libel, 1147, n, 1163, n. of breaches of patent, 74, n. Parties. See Defendant — Parties to Actions— Plaintiff. to actions of trespass to land, 421, 422. to actions of tort founded on contract, 1288. to suits ir. equity for the prevention of waste, 374. Parties to Actions. See Amendment — Parties. Plaintiffs :— joint tenants and tenants in common against their co-tenants, 1289. joint tenants and tenants in common against third persons, 1302. partners, 1302. trustee and cestui que trust, 1291. bailee of goods, I2g2 master and servant, 1293. husband and wife, 1294. infants, heirs-at-law, devisees, and personal representatives, 1897. trustees of bankrupts, 1299, 1302. bankrupts, 1300. Defe^idants : — , joint or several, 1321. tenants in common, 1303. corporations, T304, T305. trustees and commissioners of public works, 1306, military and naval officers, 1307. master and servant, 1308, 1312. principal and agent, 1309, 1312. husband and wife, 1313. infants, 13 14. executors and administrators, 1315, 1318. trustees in bankruptcy, 1319. bankrupts, 1320. Partners. See Joint Tenants — Parties to Actions — Tenants in Common. negligence of, 570, a. when liable for wrongful or negligent act of co-partner, 583, 1321. . not liable for illegal distress made by co-partner in name of firm, 761. conversion or destruction of goods by, 480. when estopped from denying authority of co-partner, 1376. may sue jointly for libel or slander, 1140, 1302. conspiracy by agent of, to procure share of partnership at an undervalue, 8501 injunction to prevent injury by, to partnership property, 371. Party Wall. See Boundary Walls — Metropolitan Building Act. injuries from non-repair of, 242. injuries from pulling down, 567. in London, how regulated, 415. Passenger. See Master of Ship — Railway— Shipmaster. smuggling by, on board ship, is a tort, 14. who is, within meaning of Merchant Shipping Act, 556, n. Pasturage, right of sole and several, 130, 141. t» tht paragraphs^, INDEX TO THE TEXT. 903 Patent. See Patent Right. duration of, 71, 71, n. what a publication of, 72, n. true and first inventor only entitled to grant of, 72. must be both new and useful, 72, 73, 76. subject-matter of, what is, 73. method or process may be, 73. combination of processes may be, 73, 75. can not be taken out for principle, but may for a principle coupled with the mode of carrying it into effect, 73. for an improvement on an existing patent, 74. specification of, 73. provisional or complete, 73, n. disclaimer of, 71. remedies for infringement of, by action or injunction, 74. infringement of, by sale, user, importation, or transmission only through the country, 74, n. particulars of breaches of, 74, n. remedies for infringement of, by assignees and licensees, 75. pleadings, want of novelty or utility, 76. slander of title to, 1137. held in common, in whom it vests on decease of one tenant in common, 1290. in refuted ownership of bankrupt, 511. injunction against infringement of, damages for, and account of profits in equity, 1445. at common law, 1450. Patent right. See Patent. does not exist at common law, 72. what it is, 72. is not valid against the Ciown, 72. assignment of, 72, u. Pauper, security for costs by, 1439. Paving. See Owner. expenses of, when recoverable by vestry, 58. Pawnbroker. See Bailee. duties of, with regard to the article pawned, 597. action against, for recovery of stolen property, 46. lien of, 609, n, 613. Payment into Court, in what actions allewable, 1351. in actions of detinue, 641. in actions of replevin, 770. by constables and others entitled to protection when acting in pursuance of statute 829. effect of, in actions of tort, as to the admission or non-admission of the cause of action stated in declaration, 1369. costs on, effect on, of County Court acts, 1414. Peace, maliciously summoning a person to be bound over to keep, is actionable, 851. Penalties. See By-laws — Costs. on nuisances, &c., arising from construction or maintenance of gas works, 275. on encroachments, deposit of rubbish, &c., on, or removing turf from, highways, 313. on obstructions ; or persons suffering filth to flow on highway, 230. on sinking pits, erecting windmills, steam engines, &c., adjoining highway or turnpike-road, 230. 904 INDEX TO THE TEXT. ^The references ar* Penalties — Contumed. on persons playing games, letting off fireworks, guns, &c,, near highway, 230. for fouling water in well, fountain, or pump, 276. for non-consumption of smoke, 277. on masters of vessels throwing rubbish, &c., into navigable river, 272. on leaving open accommodation gates across railway, 250. on servants for negligently or carelessly causing fires, 357. on publishing lectures without consent of lecturer, 61. on unlawful importation or sale of books, 60. for the unlawful representation of dramatic or musical compositions, 63. for the piracy of prints and engravings, 66. for the piracy of useful or ornamental designs, 65. on the copying, &c., of paintings, drawings, and photographs, 67. for selling pirated copies of sculpture, &c., 64. for the use of counterfeit trade-marks, 70. under Metropolitan Building Act, for not making good injury done to adjoining owner, 241. on building owner, who damages adjoining buildings in London, 569. under by-laws of railway company, 986. for the commission of nuisances are cumulative on remedy by action, 71, 5^9- given by statute when a cumulative, exclusive, or alternative remedy to that given by common law, 59, 70, 569. recovery of, before justices, 266, n. imprisonment for non-payment of, 277. distress or imprisonment for non-payment of, 996, 998, 996, n. Perjury, inducing a person to commit, is actionable, 41. Permission. See License. user of easements or profits by, will not raise presumption of grant, 151. Personalty. See Chattel — Conversion — Trespass. Petroleum, carriage and storage of, 649, 6491 n. Pew, title to, 417. title to, by prescription, 150. Photographs. See Prints. copyright in, 67. can not be copied without the consent of the ovraer, 21. on sale of, whether copyright in passes, 67. Pictures, can not be copied without the consent of the painter or owner, St. • Pigeons. , See Pigeon Shooting. rights of lessees with regard to, 325. remedy for crops injured by, 380. damage feasant may be shot, 749, Pigeon Shooting, when a nuisance, 225. Pigs. See Cattle— PiGSTYE. keeping of, not necessarily a nuisance, 54. keeping, in London, 219, n. sale of diseased, when unlawful, 7. Pigstye, is a nuisance, 217, 219. Pilchards. See Fishery. to tJu parasraph,.\ INDEX TO THE TEXT. 90s Files. injuries from, in bed of navigable river, 236. PUot. employment of, when compulsory, 556. Pipes. See Drains. Pirate. See Sale — Ship. Pistols. See Guns. Pit. See Shaft. Plaintiffs. See Amendment — Evidence — Parties to Actions — Trial. 1 joint or several, in actions of tort, 1302. in actions for negligence, 577, 631. in actions of detinue where the property belongs to two or more, 632. in actions for conversion, 524. joint tenants or tenants in common, 525. in actions of trespass to land, 97. in actions for consequential injuiries to land, 07. tenant or reversioner, g8, loi, 108. joint tenants or tenants in common, 98. in actions for assault, 830. if two or more are assaulted, 830. in actions for false representation, 1208. in actions against carriers, 692. in actions for false imprisonment, 830. if two or more are imprisoned, 830. in actions of replevin, 760. in actions against sheriffs, 936. misjoinder of, will not prevent judgment for plaintiff entitled to succeed, 1321. non-joinder or misjoinder of, may be amended, or judgment given in favor of those entitled, 1302. are liable for trespasses committed by the sheriff or his officers in the execu- tion of a writ, if they interfere, or give wrong directions, otherwise not, 937- or the process is set aside for irregularity, 937. if residing abroad, or in Scotland or Ireland, security for costs from, 1439. expenses of, as witness may be allowed, 1437. Pleadings. See Declaration — Leave and License — Not Guilty — Not Guilty by Statute — Pleas — Venue. in case of patents, 76. . Pleas. See Not Guilty — Not Guilty by Statute. to the jurisdiction, 1342. requisites of special, 1348. pufs darrein continuance, 1349. payment into court, 1351, 1369. infancy, 1352. accord and satisfaction, 1353. pendency of another action for the same cause in a different court, 1354. judgment recovered, 1355, 1356. bankruptcy of plaintiff, 1359. Statute of Limitations, 1361. not guilty in actions for injuries to land, 102. in actions of trespass to land, 424, 434. in justification of trespass, 447. leave and license, 446, 447. liberum tenementum, and evidence thereunder, 387. entry to abate a nuisance, 266. entry to levy distress, 772. equitable, 428. 906 INDEX TO THE TEXT. [The u/erentes are Pleas — Continued. in actions for trespass to goods, cattle, &c. — seizure of the goods, cattle, &c., damage feasant, 773. in actions for exce.sive distress, a previous recovery of the goods, in an action of replevin, 774. in actions for nuisances, e.g., fouling water, &c., not guilty, 286. evidence under, 2gi. leave and license, 103. prescriptive right to obstruct water by throwing in cinders, &c., 287. prescriptive right to divert water, 102. prescriptive right to carry on offensive trade, 289. of obstruction of watercourse, damaging defendant's land, 288. in actions for waste, 365. of not guilty in actions for negligence, 585. contributory negligence admissible in evidence under, 585. or inevitable accident, 585. in actions of trover — not guilty, effect of, 529. not possessed, 530. of justification on ground that plaintifPs goods were on defendant's land, or that his dog was chasing defendant's sheep, &c., 531. of son assault demesne in action of trespass, 793. of not guilty in action against sheriff for escape, 941. in replevin, 765. equitable, 481, 1363. of justification must be specially pleaded, 102, 529. several, when allowable with or without leave of court or judge, 1345. to be construed distributively, 1365. Pledge. See Bailee — Pawnbroker. Plough, right to turn on another's land, 113. Police. See Constable. Policy, equitable owner of, entitled to possession of, 491. Poll, right of every voter to demand, 40. Poor-Rate, distress for non-payment of, 978. Port. right of public anchorage in, 406 limits of, may be altered by the Commissioners of Treasury, 406, n. shingle on shore of, not to be taken if forbidden by Board of Trade, 406. Possession, is sufficient title against a wrong-doer, 532, 537. constructive, 533. slight evidence of, sufficient against wrong-doer, 442. of heir, against wrong-doer, 444. Postmaster, duty of, to deliver, and liability for non-delivery of, letters, 31. Postmaster-General. See POST Office. not responsible for neglect of subordinate officers, 30. Post Office, officers of, responsible for their own neglect to perform their duties, 3& Poultry, trespasses by, 377. to the ParagraJ,hs.-\ INDEX TO THE TEXT. 907 , Found. See T)istre ss action or indictment for breach of, 735. keepers of, not liable for detention of animals impounded, although distress wrongfal, 753. Prebendary, mandamus to admit, 1495. Pre-emption. See Company. Prescription. See Prescription Act. title by, et seq. 149. must be laid in tenant of fee, 149. incorporeal hereditaments only claimable by, 149. easements acquired by, 113. allowed to supply the place of a lost grant, 150. title to pews by, 150. water by, 161. right by, to carry on offensive or noisy trade, or to foul or obstruct water 221 224, 288. right to use of, or to pollute water by, 92, 2S7. what interruption of enjoyment prevents acquisition of title by, 170. title by, not lost by mere non-user, 171, 174. pleas of, 103. in actions for trespass to land, 433, 442. Prescription Act, et seq. 152. what profits or easements may be claimed under, 153. enjoyment to gain title under, must have been " of right." and not by per- mission, &c., 156. what is an interruption within meaning of, 152, 171, 174. what admissible evidence under, 152. periods of infancy, idiocy, coverture, and tenancies for life, &c., excluded from computation of time under, 152, 174. except in case of light, 167. pleadings under, in actions for trespass to land, 433, 442. Principal, when liable for the fraudulent act of his agent, 1 197, 1209. when liable for wrongful acts of agents, 1310. subsequent ratification, 1319. when estopped from denying authority of agent, 1376. Printer, duty of, to print his name and place of business on first and last sheets of book printed, 1 1 47. lien of, 611, 614. Prints, infringement of copyright in, 66. copying of, by photography, is unlawful, 66. Privileged Communications. See Libel — Slander. Privy. See Tenant. is a nuisance, 218, 222. Privy Council, power of, as to importation of animals from abroad, 7, n. Probate mandamus to register, 1496. Proctor, lien of, 6x8. Profit a prendre, what it is, and how claimable, 1 14, 908 INDEX TO THE TEXT - The references a,. Profit a piendre — Continued. to cut down and carry away trees, corn, &c., 130. claim of, must not be unlimited, 115. not claimable by the inhabitants of a parrsh by custom, 133. presumption of grant of, from long user, 151. what may be claimed under Prescription Act, 153. right to take, valid after 30 years' enjoyment under Prescription Act, indefeasible after 60 years' user, 152. enjoyment of right of, must be continuous, but user need not be, 171, 174, 176. when may be required over land let on lease, 151, 158. extinguished by unity of possession of dominant and servient tenement^ merger of, by unity of possession, 130, n. transfer of, 1 30, et seq. declarations for obstructions to, 197. Prohibition, object of, to restrain acts done without jurisdiction, and to what courts it runs, . 1453. lies, wl erever act sought to be prohibited is a judicial act, by whomsoevei done, e.g., an order by Church Building Commissioners stopping up a foot ■ path through a churchyard, &c., 1453. before judgment, 1454. after judgment and execution, 1455, 1459. to the ecclesiastical Court, £457, 1459. to the County Court, 1331, 1459, 1463, n. to coroner, 1453. to the Lord Mayor's Court, 1460. not taken away by appeal, 1457. formerly issued against public nuisances, 296. ancient writ, of against waste, 359. proceedings in, 1461, 1467. application for, operates as a stay of proceedings, 1463. damages — costs, 1430, 1461, n. setting aside writ of issuing out of Chancery, 1466, Promissory Notes. See Bills. Prosecution. See Costs — Malicious Prosecution. Prospect. See View. Prospectus. See Company — Directors. Protection Order. See Wife. Provisions. See Food. Public Commissioners. by laws made by, 56. Public Company. See COMPANY by-laws made by, 56. Publio. Health. See Corporation — Owner. acts relating to, 266. Public House, owner of may eject persons acting in a disorderly manner, 793. Public Officer. See rIayor — Military Officer — Naval Officer — Sherifp, duty of, to perform ministerial functions, 30. not liable for neglect of subordinate officers, 30. conversion of goods by, 475. can not sue for remuneration imposed by statute, unless expressly given, 77. character of, need not be proved unless it is especially denied, 534. Public Works. See Commissioners of Public Works. tothetaragraphs:\ INDEX TO THE TEXT. 909 Publisher, lien of, 614. Pump. See Water — Well. grant of right to use, implies right to repair, 118. penalty for fouling water in, 276. Quarry, negligence in management of, near highway, is indictable, 232. obligation to fence, 228. Quarter Sessions . See Justices. prohibition to, 1453. mandamus to, to hear appeal, 1501. Quo Warranto, where an office is full, but has been usurped by intruder, 1495. Rabbits. See Common — Game. title to, when killed, or in a warren, 486. remedy for crops or grass injured by, 380, Race Horses. See Horses. Race-Stands, injuries fiom falling of, 548. Railway. See Railway Company. mines under, 215. mines under, or adjacent to, 124. trees overhanging, 414, n. injuries to person going to, on business, 258. injuries to children trespassing on, 567. Railway Company. See Common Carrier — Company — Shares — Statutory Compensation. not liable to an actioij for nuisances necessarily created in carrying out the powers of their Act, 1040. duty of, to make accommodation works, such as gates, fences, culveits, &c., 1084. disturbance of right of common by, 134. are liable in trespass for taking a man's land without previous performance of the statutory conditions, ie§6, n. |C)t/C ^/ liability for damage done to highway during construction of, 247. negligence of, in not making culverts, &c., to carry away waste water, 1041. duty of, to maintain fences against adjoining owners and their cittle, but not against persons or cattle trespassing, 244. liability of, for dangerous state of their line, though the person injured is con- veyed in the carriage of another company, 693. liability of, for ruinous or inscoure bridges, viaducts, embankments, &c., exeept in case of extraordinary floods, &c., 246. duty of, to maintain bridges, with their approaches, &c., over highways, 247. 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, 248. not bound to keep accommodation gates closed, 250. negligent management of stations by, 245. not bound to fence their own yards, &c., 244. not liable for the negligence of contractors employed by them, 580. but will be for the natural consequences of work properly performed by con tractor, and handed over to them, 589. are common carriers, 650. not liable for necessary nuisances in the carrying on the traffic, but are for un- necessary ones, e.g., noises unnecessary made near a highway, setting fire to property by sparks from the engine, &c., 1042. 9IO INDEX TO THE TEXT. IThe ref^renus ar. EaQway Company — Continued. fires caused by, spreading to adjoining property, 355. negligence of, or of its servants or agents, 545, 547. in stopping at stations, 545. in not repairing bridges, &c., 546. in passini^ level crossings, 547. causing injury to servants in their employ, 565. duty of, to take reasonable precautions for the sec'urity of its servants, 254. nut bound a: its peril to provide roadworthy carriages, 545. -acceptance of goods or passengers by, to be carried beyond the limits of its own line, 670, 671, 693. conveyance of passengers, animals, or goods by, partly by rail and partly by sea, 670. liability of, for negligence in carrying servant, though the servant's fare be paid by the master, 692. liability of, for injuries to servants injured by their negligence, but not to mas- ter, 1272. liable for injuries to infants, though no fare paid, 545. responsibility of, for injuries caused to passengers in cariying out rules of, 246. obligation of, to carry passengers' luggage, 649. Ser Luggage. liability of, for negligence of porters in delivery of luggage, 671. for loss of luggage placed in the same carriage with passenger, 671, 69S. for loss of merchandise carried as luggage, 672. in delivering luggage at stations, 66g, 671. for loss of luggage in excursion trains, 653, 664, 671, delivery of goods by, 668, 674. not liable for injuries caused by defective packing (unless patent), or other negligence of consignor, 653, 655. negligence in delivery of cattle by, 244. liability of, for escape of dogs, 653. not responsible for tire malicious or negligent acts of strangers, 546. not responsible for delay caused by the negligence of another company running on their line, 546, 652. liability of, for negligence of their porters, at station used in common by other companies, 36. evidence of negligence of, from the mere occurrence of the accident, 546. power to make " reasonable " conditions as to receiving and delivering animals, goods, or luggage, 664, 666. what is a reasonable condition, 664, 666, 670, n. special contract with, for carriage, under Railway Traffic Act, must be signed, 665- and the signature fairly obtained, 699. liability of, for negligence, though goods carried under a special contract, 666 duty of, to afford equal facilities of carriage to all, 652. but not equal facilities for storage, 652. duty of, to give eqnal accommodation to all, 705. but may charge loner rates for large consignments at regular periods, 705. charges of, must be equal — packed parcels, 678. wiiere passengers carried partly b/ rail, and partly by sea, 677. duty of, to give account how much is charged for use of railway, and how mucb for unloading and delivery, &c., 678. responsibilitv of, for luggage left at cloak rooms, 605, 667. conversion of goods by, 477. liability of, for negl igence or detention of property by their servants, 693. duty of, to disinfect cattle trucks, 649. to provide animals carried with food and water, 649. to provide means of communication between passengers and guard, 545. to consume their own smoke, 277. by-laws of, to be hung up at every station, &c., 986, how proved, 986. t» the paragraphs:\ INDEX TO THE TEXT. 9II Railway Company — Continued. lien of, 676. for food supplied to animals carried, 649. not for disinfecting cattle trucks, 676. nor for goods previously carried, 676. arrest or assault by servants of, 832. arrest by servants of, 817, 1309. are liable for not starting trains at time mentioned in their time tables, 1195 I2ir. liability of, for false representations as to time of trains starting, &c., contained in tlieir time tables, 651. production of ticket only is not sufficient to prove contract with, time-bills must be produced, 651. duty of, to use all reasonable exertions to forward passengers ; secus, cattle or goods, 652. can not prevent passenger from getting down at nearer station, if he has paid his fare to a further one, 679. liability of, for libel, by publication of false telegram, 1140. not liable for malicious prosecution instituted by their servant without theii knowledge, 872. may distrain engines, &c., encumbering their line, 750. where it carries on its business within meaning of County Court Acts, 1327. v/hen entitled to notice of action, 1074. reports of officials and medical men to, when may be inspected, 1353, n. protection of rolling stock and plant of, from execution or distress. See Ad- denda. protection of property of, from action or execution (without leave of Court;, after filing of a scheme of arrangement with its creditors, 908. summary proceedings against, for contravening the Railway Traffic Act, 691. injunction from paying dividends out of capital, &c. , 1443. to enforce compliance with Railway and Canal Traffic Act, 705. mandamus to, to make compensation for lands taken, or statutory injuries, 1499. to restore highway, 1499. indictment against, 299. Rain. See WATER. Ratification. See False Imprisonment. Rats, damage caused by, in causing cisterns to burst or leak, 95. injuries caused by, to goods on board a barge, 653. Recaption. See Conversion. Receiver, may distrain, if appointed by Court of Chancery, but not otherwise, 71 1. Recreation. See Easement. right of by custom, 133. right to go on land for, not claimable under Prescription Act, '53. Rector. See Ecclesiastical Dilapidations — Incumbent. is entitled to freehold of church, chancel, and churchyard, 405. is entitled to keep keys of church, 405. right of, to compensation for churchyard taken under Act of Parliament, 405, B conversion of communion plate by, 405 mandamus to institute, 1495. mandamus to, to swear in churchwarden, parish clerk, or sex*r>n, 1495. Reference. See Arbitrator— Costs. Refusal. See Conversion. Register, orders for rectification of, 1524. 912 INDEX TO THE TEXT. IThc refcrenca an Registrar, of County Court. See Bailiff. of births, liable for refusing to register a birth, 30. * Registration. See Copyright. of title, 387, n. Remainderman. See Reversioner. Rent. See Distress — Landlord. when payable with or without agreement, 709. not due till end of day appointed for payment, 716. payment of, establishes the fact of a tenancy between payer and payee, 781. unless made under a mistake or under false representation, 781. what payments of, are valid against landlord, 769. payment of, in advance, not valid against mortgagees unless tenant is bound to do.it, 711. receipt of, is prima facie evidence of title, 290, 386, 443, 1378. wrongful receipt of, for twenty years, against person rightfully entitled, tender of, makes distress wrongful, 715. tender of, and expenses, makes sale of distress unlawful, 738, 740. tender of, may be made to bailiff who makes the distress, 739. Repairs. See Tenant. doing, is evidence of occupation or ownership, 290. Replevin. See Avowry. at common law, 754. distinction between, and trespass or trover, 754. not available against bailee claiming a lien, 754. must be made in county court, but action may be in county or superior court, 755- and if commenced in county court may be removed into superior court by certiorari, 755. for goods distrained damage feasant, 757. for goods improperly taken by distress or otherwise, except under process of superior court, 1018. can not be joined with another cause of action, 1337. plaintiffs in action of, 760. bailees, agisters of cattle,_husband and wife, declarations in, 762. pleas in, 765. avowries in, 766, 771. for double rent, 767. by joint-tenants, co-parceners, &c., 768. payment into court in actions of, 770. Repository. See Horses. Reputed Owrnership. See Bankrupt — Tmx Return. See Mandamus. Returning Officer. See Mayor — Sheriff. duties of, partly judicial, partly ministerial, 40. liability of for refusing to receive a vote, 40. Revenue Officers. See Constable. how far liable for detention of luggage, merchandise, &c., IO54. when entitled to notice of action, 1075. Reversioner. See Landlord — Plaintiffs. when entitled to sac for injuries to land, 98, lOl, 108. when may sue for uui!.ance to land demised, 282. riRht of, to sue for waste by fire or otherwise, 362. for obstructions of easements, e.g., a right of way or light, or profits i preB> dre when injury permanent or the obstruction is to a right, 195, 197, 212 to the para^raphs:\ INDEX TO THE TEXT. QI3 Reversioner — Continued. for obstruction of way by locking a gate, 197. for injury to right of support or light, 198, 208, 212. for the pollution of water, 284. for injuiy from eaves-dropping, 291. for diversion of water from mill, 195. for timber unlawfully cut, 461. for alterations by lessee of premises, or cultivation, although premises in- creased in value thereby, 323, 325, 368. and he has alternative remedy on a covenant, 324. to contest easements obtained over land on lease or in the hands of a tenant for life, 175. to resist claim to easement, &c., after determination of term, 153. right of entry of, to inspect waste, 352. right of, if house or buildings destroyed by fire, 353, 357. may sue for damage to his reversion, 421. can not sue for a mere trespass, 195, 421. joint tenants, co-parceners, &c., to join in action, 421. when liable for creation or continuance of a nuisance on land demised, 196, 22a. although he has parted with the land, 222. evidence of, by receipt of rent. See Rent. damages recoverable by, in actions for nuisances to demised premises, 292. Riding. See Horses. injuries occurring from negligence in, 36. Right, procuring the violation of, is a tort, iS. Riot, liability of hundred for damage caused by, 418. Riparian Proprietor. &^ Injunction — River — Water. right of, to the use of water, 160. to fish, 147. to take water from canal, 96. to remove obstructions to flow of water made by another proprietor, e.g., by enlarging a dam or weir, 269. with consent of adjoining riparian proprietor, to alter channel of stream, 93. whether he can assign his right to water to a person not a riparian proprietor, 93, River. See Bathing — Conservators — Fishery — Water — Watercourse. soil of tidal, between high and low water mark is prima facie in Crown, 406. soil of navigable, is vested in Crown, 235. navigable, title to soil of, towing paths, and banks of, 122, n. 412, 442. public right of navigation in, 406. right of public anchorage in, 406. right to tow on banks of, 122. obstruction to navigation of, when actionable at suit of private individual, 279. obstructions in navigable, by oyster beds, sunken vessels, telegraph wires, wharfs piles, &c., remedy by action or indictment, 235. obstructions in, by wharfs, sunken vessels, &c., when indictable, 314. removal of obstructions by weirs, nets, &c., in navigable, 272. penalty on persons throwing rubbish into navigable, from passing vessels, 272. non-navigable, title to soil of, 407. encroachments on, by embankment, 4. encroachments on, by erecting jetty, &c., unlawful, 407. enlargement of prescriptive dam on, right to remove, 269. right of stepping stones across, does not include right to have bridge, 269 pollution of, may be restrained by injunction, 1085. Roof. See Water. Rooks, driving away, from a rookery, not actionable, 20. II.— ^iS 9H INDEX TO THE TEXT. [T/u references ar. Sailor, may sue shipowner for not keeping medicines on board, 59. Sale. See Bill of Sale — Conversion — Title. effect of, on title to goods, 494. in market overt changes the property, 493. pretended, does not pass the property, 537. colorable or fraudulent, 496. obtained by fraud is a nullity, 467. goods taken by pirates, 493, n. right of, where goods deposited as security for loan to be repaid at a certain time, 482. distinction between, and bailment, 595, n. Salmon, statutes relating to, 266. inspectors and commissioners of fisheries, 266, n. Salvage, recovery of, where both ships in fault, 592. lien for, 609. Sand. See Sea-Shore. claim to take in alieno solo, when valid, 133. School, interference with, when actionable, 22. keeping, not necessarily a nuisance, 225. Schoolmaster, has not a fre^Jiold office, 1490. may lawfully chastise his pupils, 840. acialpture, remedy for infringement of property in, by copying, &c., 64. Sea. See Bathing^Fishery — Sea-Shore — Sea-Walls. soil of, is vested in Crown, 235. title to land gained from, 408, n. Seaman. See Sailor. smuggling by, on board ship, is a tort, 14. Sea-Shore, right to soil of, 147. title to, between high and low water mark is primi facie in Crown, 406. may belong to manor by grant from Crown, 406. is prima facie extra-parochial, 406. title to waste land adjoining, 408. or land gained from sea, 408, n. custom to take sand and gravel from, 133. to dry nets on, 147, right to pass over, to bathe, &c., 148. shingle on, powers of Board of Trade over, 133, t 4?^, n. Sea-Walls, right to erect, 238. erection of, not actionable, 4. duty of person benefitted by, to repair, 146. liability for non-repair of, by corporation, r3"4. repair of, by Commissioners of Sewers at expense of ownc, 31* non-repair of, by lessee, is waste, 361 destruction of, by tempest, &c., is not, 321. dedication of highway along, 302. injuries to, from ships running against, 563. totheparagraphs:\ INDEX TO THE TEXT. 9I5 Securities. See Title-Deeds. right lo possession of, belongs to person beneficially interested, 642. Security for Costs, 1439. Seduction. See Costs — Parent. when actionable or not, 51. action for, can not be brought in, but may be remitted for trial to, county court, 1328. who may sue for, 1280. declarations in actions for, 1281. pleas in actions for not guilty, and evidence thereunder, 1281. evidence in actions for, proof of service, 1282. damages in actions for, 1283, 1286. Self Defense. acts done in, not actionable, 2. Servant. See Master — Slander — Workman. is responsible for wrong in carrying out his master's orders, 526. is responsible for injuries to land committed by order of his master, gg. is liable for his wrongful acts done by command of master, though master may also be, 693, 1312. liability of, for negligence, though master also liable, 551, when master liable or not for acts of, 36. master liable for negligence of, 550, 551. master not liable for injuries caused by negligence of, to fellow-servant, 257. though engaged by him, 57g. must indemnify the master from the consequences of his negligence, 37. 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, 631. may sue for a wrongful act, e.g., assault, though master may sue also, 1293. i.e., if he is thereby deprived of his servant's services, 830. may sue carrier for negligence in carrying him, though his fare is paid by his master, 692. injuries 10, from dangerous premises or employment, 254. can not recover for injuries received in a dangerous employment, if rules made for his safety be habitually violated, 567. inducing to leave service, or harboring after he has left, is actionable, 41, 1272. unless master has recovered damages from the servant for breach of his con- tract of service, 1355. damages recoverable, 1286. possession of cottage, &c., by, is the possession of the master, 391. possession of goods by, is the possession of the master, 524. conversion of goods by, 475. not entitled to take away their livery, 489. penalty on, for carelessly or negligently causing fires, 357. giving character of, is a privileged communication, 1103. Service. See Seduci'ION. Servitude. See Easement — Profit a prendre — Support. praedial or urban, 81. natural or conventional, 81. instances of, given by Braclon, and how created, 114. of receiving water from higher, and transmitting it to land lower down the stream, 82. of support from adjoining land, 84, 86. torts arising from the disturbance of rights of, 7S. transfer of, passes by sale to vendee, 87. Settlement. See Marriage Settlement — Wife. property under, does not pass to trustee on bankruptcy of husband, 518. effect of bankruptcy on, 507. 9l6 ■ INDEX TO THE TEXT.' [Th. reference, art Severance. See Statutory Compensation. right of landowner to compensation for, 124. Sewage, acts for utilization of, 266. Sewer. See Commissioners of Sewers — Drain — Tenant — Wate*. public, repair of, 318. grant of right of, I2g. obligation of occupier to keep repaired, 218. power of making, through private property, 266. expense of construction of, how recoverable, 266. Sexton, rights of, in burial ground substituted for old churchyard, 405. mandamus to elect, 1494. Shaft, obligation to fence, 228. illegality of, adjoining tui apike road or highway, 230, n. 232, Shareholder. See Company — Register — Shares. duty of, to execute transfer of shares, 28. remedy of, by mandamus against company. See Mandamus. Shares, in reputed ownership of bankrupt, 510, 512, 514. mandamus to register transfers of, 1496. Sheep. See Cattle. negligent management of, if diseased, 35. sale of diseased, when unlawful, 6, 7. injuries to, from dogs. See Dog. 35, 263. importation of, from abroad, 7, n. Bheri£r. See Interpleader. how far a judicial officer, 891. is liable for refusing a poll at elections, 40. duties of, at elections, 40. may order person disturbing county election to be taken into custody, 942. duties of, with regard to replevin, now transferred to registrar of County Court, 754- duties of, in compensation cases, 1061, 1064. disqualification of, in a railway compensation case on account of interest, 885. certificate of, on inquisition for costs, 1409, 1411, 1415. liability of, for escape of judgment debtor, 918, 931, 938. action against, for money paid under threat of execution, which the sheriff had no right to levy, 955. sale by, only conveys such title as the sheriff possesses, 1 190. sale by, conveys no better title than the execution debtor possessed, 911, 937. conversion of goods by, 533. duties and liabilities of, in the execution of writs, 897, 908, 938. must make due inquiry before executing writ of fi. fa., &c., 1187. but may sue persons officiously interfering, and giving false information and directions, 1187. execution levied by wrong officer, 897. must execute the writ that is first delivered to him, unless countermanded 898. liability for the acts of the under-sheriff and his officers — special bailiffs, 899. entering the house of third persons, 901, 902, 909. power to break open a house or outbuildings in the execution of process, 902, 904, 905. illegality of seizure, if entry illegal, 903. remaining in the house an unreasonable time, go6. ,0tluparagraphs:\ INDEX TO THE TEXT. 917 Sheriff — Continued. seizure of goods of wrong person, though of same name as defendant, 907. 910. 935- or of wrong person, gi2, 935. seizure of goods of testator for debt due from executor, 907. method of levying, some overt act must be done, a man left in possession, &c. 907- . , must execute subsequent vaHd writ against goods, though he has previously seized under a void one, 907. seizure of protected or privileged goods, in Royal Palace, &c., 908. rolling stock or plant of railway company, 908. seizure of goods bona fide sold before the levy without notice, 908. seizure by, under writ of goods which have been given to another, 488. can not sell property on which execution-debtor has a lien only, 626. seizure and sale by, of goods which the execution-debtor has hired, is only actionable against, if damage ensues, but the real owner may sue the pur- chaser, 937. seizure of goods of companies after a winding-up order, 908. seizure of property of railway company after filing of a scheme of arrange- ment with its creditors, 908 . seizure of goods and receipt of notice of adjudication of bankruptcy before sale, 909. duty of, to pay rent to landlord before removal of goods seized under an exe- cution, 723. where rent (not ground-rent) is in arrear from execution-debtor, 910, 939, 953. sale of goods seized, 911. may sell goods seized by auction or otherwise, 499. liability of, for selling more goods than necessary, 467. sale of goods by, in possession of bailee or pawnee, 467. duty of, when execution levied for more than ;^50, 506. method of arrest, 917. arrest of wrong person, or of right person, under wrong name, 912, 935. where the injury, arrest, &c., has been caused by the misrepresentation of judgment-debtor, 922. arrest or seizure on Sunday, or of clergymen while performing divine service, 914- arrest under void writ does not authorize detainer under valid one ; secus in the case of goods, 907, 915. liability of, for seizure or arrest under forged writ, but not under one void for irregularity, 918. arrest of privileged persons, gi6. not liable for arrest of person privileged from arrest as a witness, 870. countermand of writs, 917. power to receive the judgment debt, 917. may discharge judgment debtor on payment of debt with consent of judgment- creditor, or on written order of attorney in the cause, gi8. return to writ — false return, 923, 949. fees payable to, extortion, 924, 940, gsg. payment of proceeds to execution-creditor, 930. power of, to protect himself from actions, and to compel rival claimants to property seized under an execution, to interplead, gog. except in cases of claims for rent, 909. or where sheriff has illegally broken open an outer door, or otherwise miscon- ducted himself, or has delayed in claiming the protection of the Courts gog. plaintiffs in actions against, 936. Declaration against : for not levying, or for an escape, 938. for removing goods without paying the rent due to the landlord, 939. 91 8 INDEX TO THE TEXT. [tJu u/mnce, an Sheriff — Continued. for extortion, 940. Pleas in actions against : not guilty, 941. justification in execution of legal process, 943, replications, 944. evidence in actions against, for the plaintiff, 948. for the defendant, 953. damage in actions against, 955, 958. injunction to restrain from selling landlord's fixtures, 911. prohibition to, when it lies, 1455. Shingle. See Sea shore. Shipmaster. See Master of Ship. power of to preserve order, &c., in his steamer, 814. may lawfully chastise seaman or imprison passengers if necessary for the pre- servation of discipline or the safety of the ship, 840. duty of, to give notice to consignee of arrival of goods, 668. Shipowner. See Master of Ship. is a common carrier, 650. liability of, for negligence of master, 556, 563. unless the charter-party amounts to a demise of the ship, 558. how far exempt from liability for negligence of master where the employment of a pilot is compulsory, 556. liability of, for loss of life or damage to goods, limited by Merchant Shipping Act, 556. 559. 592. liability of, for acts of crew appointed by master, 36. landing of goods by, where consignee fails to take them away, 675. liability of, for not keeping medicines on board, 590. liability of, for loss of gold, silver, &c., or for loss by fire, or robbery, unless value is declared, is limited by statute, 607, 673. may sua master of ship for the consequences produced by the latter having been guilty of smuggling, 37. " may recover from person guilty of smuggling on board his ship the loss he thereby incurs, 14. lien of, 609, 620. Shipper. See Bailor. Ships. See COURT OF Admiralty — Master of Ship — Shipmaster. nea:ligence in the management of, 556, 563. negligent navigation of, 592. mooring of, across navigable river, when actionable, 279. duty of, to show a light 558. jurisdiction of Court of Admiralty and County Court in cases of collision be- tween, or torts in carriage of goods by, 1334. what are ships, 1334. collisions between, remedy in Court of Admiralty where both in fault, 576. collisions between, causing death or personal injury, inquiiy by Board of Trade a condition precedent to action, 576. coUisons between, damage, how apportioned in Court of Admiralty, 567. collisions between foreign, out of English jurisdiction, 557. title to, 483, n. damages in action for conversion of, 539. remedy for, if wrongfully seized for being engaged in slave trade, seizure of, under Foreign Enlistment Act, 526, n. damage for seizure of, under Customs Act, 543. sale of, if formally engaged in acts of piracy, 493, n. injuries to persons going to, on business, 252, 258. master of, liable for throwing rubbish into navigable river, 272. .; injuries to, while under convoy of man-of-war, 43. obstructions i \ navigable river from sunken, 236. Ip the paragraphs.-] INDEX TO THE TEXT. 919 Ships — Continued. sunk in navigable river, vchether owner liable to indictment for obstructions caused by, in reputed ownership of bankrupt, lien on, 611, 611, n. joint owners of, should join in actions for injuries to, caused by negligence, 57°- smuggling by master of See Shipowner. Shipwright, lien of, 611. Shop, injuries to persons entering on business, 258. Shopkeeper, right of, to erect stalls in front of their shops, 26, a. Singer. See Libel. Slander. See Costs — Libel. distinction between, and libel, 1087, 10S8. not actionable, may become so, if printed, 1088. and printer or publisher, not utterer, is liable, 1088. when actionable, 8. each utterance of, is actionable, 1355. repetition of, who liable for, 11. repeater of, can not discharge himself by giving up name of original utterer, 1140, 1 146. of a wife, when actionable or not, 51. malice is implied in, logo. but maybe rebutted, 1119, I130, 1137. mere abuse is not, unless spoken of a man in his profession, business, or em ployment, 1116, 1121, 1122, 1123. or special damage ensues, 11 18, 11 21. by imputation of an indictable offense, nig. or that a manjias a contagious disorder, 1120. puffs of rival tradesmen, 1121. by clergymen, 1125. causing dismissal of servant, when actionable, 1127. special damage caused by, must be the natural result of the words spoken, and not the wrongful or capricious act of a third person ; — the repetition, there- fore, by A. of slanderous words used by B. mky be actionable, though the original utterance by B. be not so, 1127, 1129, 1153, 1159. privileged statements — respecting servants, or in course of public duty, 1131. charges of felony, &c., 1132. by advocates, defendants, or prisoners, in course of judicial proceedings, 863, II33- by judges or magistrates in the course of their duty, 883, 1135. interpretation of words used, 1136. of title, 1137. special damage must be proved, and malice and falsehood, 113 7. to a patent, 1137. action for, can not be brought in, but may be remitted for trial to, County Court, 1328. plaintiffs in actions for, 1139. partners, Ii3g. on partners is joint, and they may sue jointly, 1302. defendants in actions for, joint or separate, 1140. declarations for, 1141, II43- statement of special damage, 1 143. plea of not guilty in actions for, and evidence thereunder, 1145. 920 INDEX TO THE TEXT iThe re^^nci. ,f. Slander — Continued. where words are not actionable without special damage, 1343. of the truth of the slander, 1 146. , evidence in actions for, for the plaintiff, 1147, 1150, 1153, 1154. of malice, 1157. of special damage, 1159. of the trade, profession, &c., of the plaintiff, and that the words were spoken of him as such, 1161. evidence in actions for, for the defendant, I163, 1x65. truth of the charge or accusation, 1 163. judges direction to jury in actions of, 1169. damages i-ecoverable in actions for, 1164, 1167, 1392, 1393. evidence of apology in mitigation of, n68. damages in actions for, must be stated in declaration, or evidence of can not be given, 1339. costs in actions of, 1408, 141 2. arrest of judgment or setting aside verdict in actious of, 1170, indictment for, H71, 1173. costs on, 1431. Sluices. See Sea- Walls. Smell. See I^JUNCTION — Prescription. when amounting to a nuisance, 2ig. Smoke, nuisance arising from, not actionable by reversioner, statute for prevention of, 266. penalties for non-consumption of, 277. , consumption of, in Birmingham, 218. injunction against injuries arising from, 293. Smuggling. See Shipowner. torts caused by, to the master of the vessel on which it occurs, 14. Soldier, can not sue his commanding officer for maliciously discharging him from the regiment, 85l. Solicitor. See Attorney. Specification. See Patent. Sporting. See Game. right of, when an incorporeal right in gross, 130, n. Spring Guns, setting, a misdemeanor, except in a dwelling house, 226. Stage Coach. See Coach. Stage Play. See Copyright — Novel. Stalls. See Shopkeeper. Stands. See Race-Stands. Stannaries, customs of, to dig for tin, 133. Station. See Railway. Statue. See Sculpture. Statute. See By-Laws — Compensation — Penalty — Statutory — Compen- sation. injuries caused in the necessary execution, with due care, of powers given by are not actionable, 1040. for injury resulting from the execution of, without negligence, the remedy if on the statute, but if the injury is the result of negligence or wrongful act an action lies, 1079. to tht paragraphs?^ INDEX TO THE TEXT. 921 statute — Continued providing a specific method of obtaining compensation for injury, no othei remedy available, 59, 1058. injuries from negligence in performance of work under, are actionable, 1041, 1044. action for breach of duty or obligation created by, 58, 59. benefits given by, and burdens imposed by, are co-relative, 77. right of support to land taken under, 123, n. duties on public officers imposed by, 77. duty imposed by, of fencing machinery, 256. on railways of maintaining fences, 244. for purpose of making river navigable, 237. can not be avoided by showing that some other person ought to have per- formed it, powers given by, for drainage of land, 83. for abatement of nuisances, 266. over rivers and canals, 96. for the regulation of salmon fisheries, burials, public health, and metropolitan buildings, for the prevention of smoke, and the utilisation of sewaee, 266. no action lies for doing a thing prohibited by, unless damage suffered by plaintiff beyond what he suffers in common with everyone else, 1368. limitation of time for bringing actions for injuries committed under, 1071. commencement of period of limitation, 1072. actions for injuries committed under, must generally be preceded by notice, 1074. See Notice of Action. directing actions to be brought against a clerk of a board or commissioners is generally compulsory, 1079. provisions protecting persons intending to act in pursuance of, 822, 823. pleas of justification under, 1082. costs in actions against person intending to act under, 1421. powers given by, if exceeded may be restained by injunction. See Injunction, .^95- injunction to prevent unnecessary injury in the execution of, 1084, 1086. against nuisances created under, 296, Statute of Limitations, provisions of, as to actions of tort, 1360. commencement of tlie period of limitation, 1361. in cases of excavation of land, &c., 1361. in cases of slander or false imprisonment, 1361. in cases of negligence or detention of goods, 1361. in case of conversion of timber by tenant for life, 330. in case of boundary walls, 415. with regard to the recovery of land, 387, 403. in case of unopened mines, 390. in case of occupation of cottage, &c., by poor relations, servants, or agents, 391- accrual of right of entry on death, alienation, or forfeiture, 392. possession by tenants at will, mortgagors, cestui que trusts, peisons let into possession under an agreement for purchase, &c., 393. possession by tenants from year to year, 395. purchasers of trust estates, 394. effect of wrongful receipt of rent, 396. entry, or continued claim, 397, 403. possession of coparceners, joint-tenants, or tenants in common, 398. possession of younger brothers, or relations, 399. acknowledgments of title, 400. / in case of ecclesiastical, or eleemosynary corporations, 401. in case of disabilities, 402. in case of concealed fraud, 402. 922 INDEX TO THE TEXT. \_Thi reference, art Statute, &c. — Continued. in case of entry only, or entry and expulsion, or a fresh agreement made, 40a, 403- in case of mortgagees, 404. extension of the period in certain cases, 1362. eftect of, on lien, 609. Statutory Compensation. See Compensation — Injunction. does not apply to injuries caused by negligence, IO58. or to negligent or wrongful acts, 1068, 1079. what claimable by landowner whose land has been taken under statutory powers, and what by landowner whose land has not, but who has been in- jured by the works executed by the company, commissioners, &c., 1055. amount of, ascertainable by arbitration, 1056. but not the legal liability to pay, 1056. where amount is ascertained in one particular way, e.g., by arbitration, or be- fore justices, no other method of obtaining is available, 1058, 1059, 1077. under Lands Clauses, or Railway Clauses Act, how obtainable, by arbitration, by verdict of jury, or before justices, 1059. if case not within statute, the Court of Chancery has jurisdiction to decide on the claim to, 1059. for dust and dirt from railway works, 1059. for obstruction to light and air, 1059. for depreciation of property, if but for the statute, the act of the railway, or other company, commissioners, &c., would have been actionable, 1059. for diversion, or narrowing a highway, or turnpike road, 1059. for substitution of roadway for waterway, 1059, n. for obstruction of private way, or access to house, 1059. for vibration, and the noise and smoke of railways, 1059. for nuisance arising from railway platform overlooking dwelling house, 1064. for subsequent damage, 1068, for the whole building, if part taken, 1052. or severance, 1060. value of land and damage to it, how assessed, 1063. prospective damage, 1063, 1068. to lessees and tenants from year to year, notice by person whose land is taken of the amount, &c., claimed, 1061. action for, if company makes default, 1061, 1066. declarations in actions for, 1066. judgment on sheriff's inquisition not conclusive, 1067. mandamus to obtain, 1499. costs on, 1435. Steam-Boat Company, power to make "reasonable" conditions as to receiving and forwarding animals or goods, 664, 666. duty of, to disinfect cattle pens, 649. lien of, for food supplied to animals carried, 649. Steam-Boats. See Shipmaster — Steam-Boat Company. duty of, to cnsume their own smoke, 277. Steam Engines. See Steam Ploughing Machine. use of, on highways legalised by statute, 231. unless they amount to a public nuisance, 298. illegality of, adjoining highway, unless screened from view, 230. illegality of, adjoining turnpike road, 230, n. Steam Ploughing Machine, legality of, adjoining highway, or turnpike road. 230, a. , Steam Vessel. See Shipmaster — Steam-Boats. Stepping Stones. See River. ,0 the tara^aphs:\ INDEX TO THE TEXT 923 Steward. See Court Baron. lien of, 618. Stock, in reputed ownerhsip of bankrupt, 511. Stolen Goods, may be retaken, 523. action for, when it will lie, 46. Stone. See Minerals — Quarry. Stoppage in Transitu, right of, in unpaid vendor of chattels, 611. bill in equity to enforce, 1446. Storm, non-liability for accidents arising from effects of, 238. Stream. See Water. Street. See Tenant. Subsoil. See Support. Summary Ocnviotions. See Justices. under by-laws, 54. Sunday, execution or arrest on illegal, 914. Superflous Land. See Company. Superintendent of Customs. See Customs, Support, right of lateral or subjacent, from adjoining or superjacent land, 84, 86. right of, from adjoining land, 79, 241. right of, from one house to another, 125. prescriptive right to, how gained, 165. between adjoining houses, 165. right of, between owner of surface and owner of mines, under an English Acti 215. between owners of upper and lower doors of house or warehouse, for railway or canal bridges, viaducts, &c., 124. when it passes as incidental to a conveyance of land, 123. when land taken under the provisions of an Act of Parliament, 123, n. when land weighted with buildings, railways, or canals, 124. when separate storeys of house belong to different people, 126. when owner alienes the surface, reserving the mines, abridgment of right of, by contract, 86. no right of action for injuries to, till actual damage sustained, 107. declarations for injuries to the right of, loi. by reversioner, 197. in actions for injury to against adjoining proprietor, 197. or a stranger, 197. injunction to prevent disturbance of right of, lii, 215. Surface. See Support — Water. Surgeon, negligence of, 569, 12S8. Surveyor, negligence or fraud of, in refusing certificate of work done, 57a. Surveyor of Highway, not liable for non-repair of highway, 30. * not liable for injuries caused by non-iepair of highway, 1044. 924 INDEX TO THE TEXT. \Thi references art Surveyor of Highway — Continued. but is for leaving heaps of stones, &c., unlighted, 1044, is entitled to notice of action, 1077. Swearing. See Curse. Tallow, manufactory, is a nuisance, 217, 219. Tan-Yard, is a nuisance, 217, 2ig. Tax-Collectors. See Revenue Officers. Telegram. See Telegraph Companies. is a post-letter, within 7 Will. IV. & I Vict. c. 54, 607, D. production of, in couit of law, 607, n. Telegraph Company. See Electric Telegraph Company. negligence of, in delivery of messages, 607. injuries to submarine cables of, 236. posts of, on highway are indictable, 313. Tempest. See Storm. Tenancy. See Occupation. Tenant. See Damages -Fixtures — Joint-tenants — Lessee — Tenants in Com- mon — Tenant-right — Waste. for years, rights of, in respect of brick-earth, gravel, and minerals generally, 325, 334- in respect of woods, timber, underwood, streams or ponds, fish, pigeons, game, &c., 325, 328. has me property in bushes, but not in trees, 413. is entitled to cuttings of fences, 413. for life, rights of, with respect to timber, underwood, mines, &c., 332. without impeachment of waste, rights of, 351. for years or at will, liability of, for waste, 321. for life or years now liable for waste, commissive or permissive, 319. at will, not liable for permissive waste, 319. from year to year or at will, waste by, 326, 327. for life, waste by, 328, 332. liability of, for waste committed by stranger on demised premises but remedy over against trespasser, 350. from year to year, liability of, for repairs, 326. for life, liability of, for repairs or to rebuild, 328. liability of, for alteration of premises or cultivation, though value thereby in- creased, 16, 368. for years, must not convert arable land into pasture, or vice versa, or destroy fences, 325. liability of, for obstruction of entry to inspect waste, 353. for a term, not bound to rebuild, 321. liability of, for repairs, 321. liability of, for non-repair of house, 240. liability of, for stone, timber, or rubbish being placed on highway while repairs going on to his house, 234. right of, to cut timber for repairs, 329. for years, waste by, by non-repair of sea-wall, 321. by alteration of premises, 323, 325. , bound of common right to keep pipes, sewers, drains, privies, &c., repaired, if used by him, 218, 284, 2go. when liable for expenses of paving, 58. is liable for non-repair of fence, 196, 422. liability of, to repair highway in certain cases, 316. to the paragraphs^, INDEX TO THE TEXT. 925 Tenant — Continued, duty of, to keep all accessories to his premises in a proper and safe state, 233. e.g. to secure shutters, swing doors, cellar doors, &c., 228. is liable for injuries to third persons from unfenced holes or dangerous areas, &c., on his premises, if the person injured was rightfully there, 228, 230, 232. or for the dangerous state of pathway to his house, 22g. when liable or not for nuisances from fall of ruinous buildings, 290. •when liable for injuries to passengers from things falling from his house into the street, 228. liability of. for using premises demised so as to create a nuisance, 222, 283. for explosion of gas, 35S. for fires, negligently or otherwise caused. See Fire, 353, 357. for acts of persons appointed by his bailiff, 36. holding over, is liable for all consequential damage, 463. except for the holding over of his sub-tenant in an action for mesne profits, 464. can not dispute his landlord's title, 983. but may show it has expired, 1332. statements by, in derogation of his landlord's title, are not admissible, 211. encroachments made by, enure to benefit of landlord, 388. if driven from his holding by the menaces of a third person, 20. user by, of land opposite his house between carriage and footway, 308. can not dedicate highway, except with consent, express or implied, of landlord, 306. laches of, in permitting ea=;ements to be acquired, 151, 156. from year to year, who underlets from year to year, may nevertheless distrain, 706. statutory provision as to emblements, 707. right of, to away-going crop operates as extension of tenancy pro tanto, 710. may sue bailiff for refusing to receive rent and expenses after a distress, 738. may show, in defense to distress, that he has paid rent to mortgagee or ground landlord, &c., 769. may resist illegal distress by force, or rescue goods till they are impounded, 709. 747- or resist abuse of distress, 735. when to be plaintiff in actions for injuries to land, 97. at will only, or by mere possession, may maintain action against wrongdoer, 442. may sue for nuisance to lands demised, 282. may sue for injuries caused by fire to demised premises, 362, 369. not landlord, is the person to sue for trespass to land, 421. may sue landlord for damage done to crops by cutting timber, &c., 455. may sue for injury to trees, causing loss of shade, fruit, &c., 461. may sue for obstructions to easements or profits a prendre, 194. may sue, or be sued, for the obstruction of light, 195. for life, injunction against waste by, 371. injunction against, to prevent waste by digging minerals, altering premises, in- jurious cultivation, &c., 371. for life. See PRESCRIPTION Act — Reversioner. Tenant in Common. See Partner. when liable to co-tenant for injuries to, or ouster from, property held in common, 1303. liability of, to his co-tenant for destruction of the property held in common 480. or for destruction or alteration of boundary wall held in common, 415. or for misuse of property held in common, 339. when may maintain trespass against his co-tenant or his licensee, 420. can not license stranger to commit trespass against co-tenant, 447. of deeds or chattels, who entitled to possession of, 629. can not sue co-tenant for detention of goods, 642. Q26 INDEX TO THE TEXT. [The reference, au Tenant in Common — Continued. rights of survivor of one of two, l2go. possession of, effect of, under Statute of Limitations, 397. may distrain for their ovifn share of rent, 711. avowry by, 768. should join in actions for injuries to land held in common, 98, 1302, e.g. for trespass, 421. or for a nuisance, 2S3. devisee of deceased, should join co-tenant in aclion for injuries to land held in common, 1302. should join in actions for conversion of property, 525. injunction against, by co-tenant, to prevent waste, 371. Tenant-Right, effect of assignment of, 130. Tender. See Amends. of amends by constables and others acting in pursuance of statute, 829. of debt or charges extinguishes lien, 628. Thames. See Conservators. Theatre, liability of lessee of, for the unlawful representation of dramatic pieces, 63. . action of libel by manager of, 10. Theft. See Felony. Threats. See Menaces. Threslung Macliine, nuisances arising from, 230, n. Tiger. See Animals — Fer/e Nature. Timber. See Custom — Estovers — Profit a Prendre-^Waste. title to, when severed from the freehold, 484, 524, 533. by tenant for life, ^c, 362. proceeds of, when severed by the owner of a limited estate, to be invested foi the benefit of the inheritance, 484. cutting and sale of, by tenant for life, when lawful or not, 332, 336. decaying, may be cut by order of Court of Chancery, unless ornamental or use- ful for shelter of dwelling house, 330. and proceeds invested for benefit of inheritance, 330. cutting of, by one tenant in common, 339. right of rector to cut for repairs, &c., 337. cutting of, by trustees " without impeachment of waste," or otherwise, when lawful or not. license to cut down, 116. grant of, implies license to go on land to cut, 119. injunction against cutting, although title in dispute, 371. Tin. See Stannaries. right to search for in Cornwall, 143. Tin-Bounders. See Tin. Title. See Title Deeds. to realty, from twenty years' possession, 388, 403. registration of, 387, n. by custom. See Custom. by prescription. See Prescription, 149. to trust property, 521. to soil carried away, 528. to timber severed from the land, 484, 524. evidence of, by proof of receipt of rent, &c., 1378. to chattels evidence of — in actions of trespass or conversion, 532, 535. totheparagraphs:\ INDEX TO THE TEXT. 927 Title — Continued. to personal securities, in whom vested, 642. to chattels, by joint tenants, or tenants in common, ()29. to goods stolen, 523. to stolen goods by purchase, 494. to chattels by finding, 485, 500. to property for the conversion of which damages have been recovered, 522, by purchase from sheriff under an execution, 499. not affected by reversal of judgment on which execution issued, 921, to goods in possession of children, 524. by bill of sale, 483, n, 499, 513. to ships, 483, n. to goods altered by wrongdoer, 483. to birds and animals ferse naturae, 486. to fish, when struck with harpoon, or caught in nets, 487. to chattels by gift, 488. to servant's liveries, 489. to grants of arms, title deeds, leases, bonds, and other securities, 490, 500, 642. to bills and notes, 478, 479, 490, 500. to letters. 492. to chattels by purchase in market overt or by private contract, 493, 494. of innocent purchasers from fraudulent vendors, 496. by delivery order, dock warrant, bill of lading, &c., 497. to property of bankrupts, 501, 502, 507. under an execution, 506. to property of which bankrupt was reputed owner, 508, 516. warranty of on sale of chattels, 1205. may be tried in an action of trespass, 445. question of, before county court judge, how far inquirable into, 886. jurisdiction of county court in questions of, to land, &c., 1331, 1332. false representation of, on sale of real property or personal chattels, :i. .19' false assumption or representation of, is actionable, 1211, 1213. slander of, 1 137. Title Deeds, belong to the person in whom the legal title is vested, 642. right to possession of, where two persons equally entitled, 629 heir at law may sue for detention of, 631. right of owner, mortgagee, or tenant for life to, 490. right of cestui que trust to, 490, n. action of detinue for, 634. by devisee 644. damages in actions for detention of, 645. Tolls. See Market. Tombstones, property in, 405, n. taking up or defacing, is a tort, 15- in a private cemetery, 15, n. Tort. See Torts. what necessary to constitute, i, 12. any unauthorized interference with the property or right of another is c5, 18, writing on the certificate or license of another constitutes, 15. sale of goods without authority is, 52. interference by force or fraud with another's trade, occupation. 01 means of livelihood is, 22. arising from breach of duty imposed by law, 28, 32. by refusing to obey decree of court of justice, 39. malice not a necessary ingredient, 40. 928 INDEX TO THE TEXT. [Tht refmncet an Tort— Continued. founded on negligence, 33. arising from the disturbance of rights of servitude, et seq. 78. founded on contract, 27. is actionable either on the contract or the tort, 1288. prising out of contract, who can sue for, 32. committed abroad may be sued for here, 44. if amounting to a felony, is postponed to criminal proceedings, 46. waiver of, 52. Torts, are in their nature several, 1321. one defendant, therefore, may be acquitted,- and judgment given against the other, 1325. Towing-Path. See Canal — River. right of adjoining landowner to cross, for loading and unloading vessels, 412, Tcwn Clerk, lien of, 618. Trade. See Fixtures. interference with, when a tort, 17, 22, 23. by-laws made in restraint of, 57. offensive and noisome, when a nuisance, 219, prescriptive right to exercise, 221. penalties for establishing noxious, 71, 71, n. Trade Mark. See Injunction. counterfeiting is actionable by purchaser, as well as by person whose mark is imitated, 1199,1224. imitation of, is actionable, though no damage suffered, 17. ■ but on application for injunction, evidence of damage is necessary, 17. no property, strictly speaking, exists in, but right of user may be obtained, and that right protected from invasion by injunction, 1232. may exist in the title of a periodical publication, 132, n. or words and devices, 1232. the property of partners, to whom it descends on death of one partner, 1232. on wines, &c., produced in a particular place only, will pass, on sale of the place, to the purchaser, 123. sale of, how far lawful, 1232. penalties for the use of counterfeit, 70- Trade Union. See Intimidation. Trainer. See Horses. Tram^way, on highway is indictable, 313. grant of, by parol, irrevocable if expense incurred, 213. Transfers. See Shares. Transports. See Ships. Treasury. See Commissioners op Treasury — Public Officers. Trees. See Estovers — Timber. title to. is in landlord, 413. li standing in boundary fence, 415. if on waste land adjoining highway, set out under Enclosure Act, 45a. if growing on banks or towing-paths of navigable river, title to, 442. iCssee can not cut, except for repairs, 325, 329. effect of grant of, by tenant in fee, 130. right to cut and carry away can not be claimed under Prescription Act, 155 overhanging branches of, may be cut by adjoining proprietor, 414. overhanging railways, 414, n. t, the paragraphs'^ INDEX TO THE TEXT. Trees — Continued. overhanging highway or private property, may be cat, 26fi. overhanging highway, are a public nuisance, 297. tenant and landlord may both sue for injuries to, 421. and so may lord and copyholder, 421. injunction against injury to, from offensive trades, 293. Trespass. See Arrest — Assault — Defendant — Plaintiff— Trespasser. malice not a necessary ingredient of, 40. by agent in name of principal, and subsequently ratified by him, 1 3 10. to person' or personalty : by letting loose a dangerous animal, 2. by keeping a person in confinement, though not the original confiner, 1312. by throwing a squib into a crowd, which is tossed from one to another, 582, by carrying away goods, driving away, or striking cattle, &c., 466. by dogs in pursuit of cattle, game, &c., 466. by abusing or destroying a chattel found, 466, 474. by convei-sion of chattels, 467. for distraining cattle contrary to agreement, 713. in seizing estrays or wrecks, 533. under void or irregular process, 937, by sheriff. See Sheriff. merger of, in felony, 46. declaration for, 528. plea of not gviilty, 529. justification of, on ground that goods were on defendant's land, 531. in defense of oneself, one's property, or one's rights, e.g., a right of access to one's own house, 466. to realty : what constitutes, 375, 376. after notice, 375. if committed to escape danger, or to retake animals pr chattels on land of another, 375. by throwing rubbish, or water, building wall, &c., 376, 385. by cattle, or other domestic animals, or birds, 377. in charge of servants, or wife, 377. straying from common, or highway, 379. from want of, or defective fences, 379. by rabbits, pigeons, or dogs, 381. if surface and subsoil belong to separate persons, 382. when may be repelled by force, or house erected pulled down, 383. none, if person entering be the lawful owner, 383. if a highway, 384. if continuing, right of action accrues de die in diem, 385. by locking door of plaintiff's room, and keeping him out, 441. by lessee of herbage, or purchaser of crops, 442. on towing-paths of navigable river, 442. antecedent to plaintiff's possession of land, 444. by person lawfully entitled, after entry, 445. by landlord, after expiration of* tenancy, 445. leave and license, 447. by entering house under a license, otherwise than by the door, 447, 453. , by tenant in common against stranger, licensee of co-tenant, 447. to remove or retake goods, papers, &c., 447, 453. to replace goods on plaintiff's land or to remove therefrom goods, papers, &c., of defendant, 453. by riding over another's land, 15. by picking up game which falls on the land of another, 15. from fall of chimney, or flow of filth from land or house of the . defendant to or on land of the plaintiff, 284, II.— SQ 930 INDEX TO THE TEXT. \The references art Trespass — Continued. against wrongdoer, constructive, or mere possession, is sufficient, 442. title may be tried in action for, 387, 445. See Title. action of, may be brought, either against person trespassing, or person bv vboea authority the trespass was committed, 421. and against all or any one of persons trespassing, 422. parties to actions for, 419. 422. reversioner, 195. declaration and venue in actions for, 423. pleas in, 424, 434. pleas of justification in actions of, 838. by right of way, &c., 449, 455- if trespass continuing, 838. replications, 435, 439. new assignment, 1366. evidence for plaintiff, 441, 446. for defendant, 446, 453. damages recoverable in actions of, 454, 463. where trespass is by several, 846. costs for, if wilful and malicious, 1418, l420. costs in actions of, after notice, 1419. for mesne profits, 464. injunction against, 465. Trespasser, injuries to, not generally actionable, 228, 229, 260, 2g2. when may sue for injuries sustained while trespassing, 232. Trial. See Evidence. proceedings at, plaintiff to begin, &c., 1367. Trover. See Conversion. Trustee. See Conversion — Cestui que Trust — Parties to Actions — Tpvsteb IN Bankruptcy. liabilities of, 521. for fraud of solicitor employed by him, 1 197. cutting of timber by, 334. duty of, to prevent commissive but not permissive waste, 336. must sue for injuries to land, 98. is entitled to his expenses out of the trust fund, 1046. new appointment of, if the trustee becomes bankrupt, 519, »•- Trustee in Bankruptcy. See Bankrupt — Liquidation. liability of, as assignee of lease, may bring or defend actions for injuries to the property of 'bsiikru} . 1300. but not to his person, 1300. if more than one, should all join in actions for injuries to prcpfrtv <* bankrupts evidence of appointment of, 1299. character need not be proved unless it is specially denied, 534, security for costs from, 1439. Trustees. See Commissioners. Turbary. See Bill of Peace — Turf. , common of, 139. Turf. See Turbary. right to cut, or wood, is a profit 4 prendre, 114. claim to dig and carry away, from another's land, when valid, li* Turnpike Road. See Highway — Statutory Compensation. title to soil of, 409. U, the paf7graphs:\ INDEX TO THE TEXT. 931 Turnpike Road — Continued. repair of ditches or watercourses by the side of, 218, 318. cattle straying on 313, n. Underwood. See Trees. Unity of Ownership. See Common — Light — Water — Way. What sort of, is essential to the extinguishment of easements, 186. Unsoundness. See Horses. Vagrant. See Arrest. Valuer. See Surveyor. Variance. See Amendment. none, if right claimed includes the right proved, 205 Vendor. See False Representation. of goods, warrants that he has right to sell them, and is liable if he has not 1190. Venue. See Declaration. in actions for injuries to land, loo. for trespass to land, 423. for obstructions to easements or profits i, prendre, 197. against justices, constables, churchwardens, overseers, &c., 83a. Verdict. See Water. Vessel. See Ship. Vestry Clerk, has not a freehold office, 1487, 1490. mandamus to admit, 1495. Vicar. See Incumbent — Rector. right to name of, 405, n. has no right to fees for vaults or tablets in chancel, 405. Vice-Chancellor, of University not liable for a wrongful imprisonment, 883. 's a judge of Court of Record, 890. View, interference with, not actionable, 4. Village Green. See Easement — Recreation. Visitor. See Guest. Vote. See Parliament. Voter. See Poll. Waiver. See Notice to Quit. of tort, 34. Wall. See Boundary Wall — Fences — Party Wall. pulling down, is waste, 320. building, across a way, or obstructing light, is actionable by the reversioner 196, 197. _ declaration in action for non-repair of, 197. Warehouse. See Support. injuries to persons entering on business, 258. Waurehouseman. See Wharfinger. not bound to receive petroleum, nitro-glycerine, or other " specially dangerous " goods, 649. is entitled to authority from owner before parting with goods in his keeping to a third person, 631, Hen of, 613, 624. 932 INDEX TO THE TEXT. \T1u references art Warrant, how proved, g48. Warranty. See False Representation — Horses. damages in actions for breach of, 1388. Waste. See Common— Highway— Injunction — Recreation. what it is, different kinds of, and who liable for, 319, 351. pulling down houses, or neglect to repair, 319, 326. commissive or permissive, 320, 324. fire. See FlRE, 353, 357. alteration of premises, or cultivation, though value thereby increased, 368. See Tenant. removal of fixtures. See Fixtures, 340, 349. in trees or woods, what is, 329. sale of timber by tenant for life, 330. taming deer, 331. equitable, by committal of wanton and malicious destruction, 332. license to commit, 35T. right of entry to inspect by reversioner, 352, 370. willful, not semble affected by Ecclesiastical Dilapidations Act, 1871, 337. by tenant for life, 319, 323, 330, 336. by tenant in fee, with executory devise over, 332. by tenant for years, 319, 326. by non-repair of sea-wall, 321. by alterations in demised premises, 322, 325. although covenant to repair exists, 324. in respect of brick earth and minerals, 325. in respect of woods, underwood, streams, or ponds, fences, pigeons, game, &c., 325. 329- ' by removing glass, wainscot, &c., 325. by tenant from year to year, or at will, 321, 327. tenant from year to year, or at will, not liable for permissive, 321, 327. by copyholders, when a forfeiture, 338. by tenants in common, 339. on property held in common, 1289. by trustees, " without impeachment of waste," 334. duty of trus'ees, to prevent commissive, but not permissive, 336. by r'.,:tor, dean, &c. See Ecclesiastical Dilapidations. by executors, X318. by ferae cove /te, executrix, or administratrix, 1313. committed by strangers on land demised, 350. action for, j6o. how affected by insurance, 361. parties to, 362. declarations, 364. pleas, 365. evidence, 366. damages, 367, 370. judgment, 358. injunction to prevent, 360, 371, 373. damages in equity for, if already committed, 371. acquiescence in, effect of, or of delay in coming to the Court of Chancery, 372, 373- parties to suits in equity to prevent, prohibition against, 359. Water. See Canal Company — Mill — Mine — Riparian Proprietor — River — Watercourse — Well. natural right to the use of flowing, 81, 82, 88, 89. ri^ht to use of, as against wrong doer, by a person who is not a riparian pro- i>'/<'tor, 93. to the paragraj,ks:\ INDEX TO THE TEXT. 933 Water — Continued. right to use, claimable by custom, 133. under Prescription Act, 152, 153. right to surface, 82, 89. right to undergrbund, and springs of, beneath surface, 95, 1055. right to artificial, 88. right of navigation and canal companies to, 96. right to, flowing through drain, conduit, or watercourse, on land of another 116, 118. claim to diversion of, for purposes of irrigation or drainage, 89. diversion or abstraction of running, whether actionable, if the plaintiff does not use it, or is not himself injured, it, 107. diversion of, from mill, is actionable by reversioner, diversion of, from mill, is a nuisance, effect of acquiescence in the unlawful diversion of, go. effect of fine on, or verdict against, the unlawful diverter of, 90. right to vary the channel of, 8g. right to pen back, gl. by prescription, 161. right to discharge of, from eaves of house, 113. discharge of, from eaves of adjoining house, is actionable by reversioner, 282. grant of right, 128. reservation of, on demise, 117. enjoyment of right of, over lands vested in tenant for life, or for a long term, 175. right to, may be destroyed by permission given to divert it, if expense has been incurred in such diversion, 177. right of, extinguished by unity of possession, 186. right to, when not extinguished by unity of ownership, l86. interruption in the enjoyment of, 171. forfeiture of limited right to, if right attempted to be extended, 182. abandonment of right to, by acts indicative of inattention, but not by mere non- user, 181, 186. right to, not destroyed by the destruction of house or mill to which the right belongs, if house or mill rebuilt, 187. collection of surface, &c., when actionable, injuries arising from the artificial collection of, 95. injuries to lower story of house from bursting or leakage of cisterns on upper floor, 95. discharge of, on another's land, is a trespass, 376. injuries from the escape of, 33. fouling of, may be an injury to the reversion, 284. contamination of, by refuse from gas works, 275. right to use or pollute by grant or prescription, 92. right to foul, in derogation of a grant, 129. obstruction of, by throwing in cinders, &c., whether legal, 287. fouling of, is a nuisance, 218, 223. and actionable without special damage, 107. 1 passage of dirty, may be stopped, if right to passage of clean water only exists, 269. declaration for obstructing flow of water through a drain, &c., 197. for injury from wrongful diversion, obstruction, or pollution of, lOO, 107. for pollution of, 284. by reversioner, 284. effect of plea of not guilty in actions for fouling, 286. plea of prescriptive right to foul, 287. plea of prescriptive right to divert, 102, 104. injunction against disturbance of right of, though granted by parol, 213. to prevent the diversion of, no. to prevent pollution of, 293. 934 INDEX TO THE TEXT. ITht references an Water Company, duty of, to keep pipes duly charged with water, 59. to keep fire-plugs, &c., in proper order, 1079. not liable for bursting of pipes through frost, 586. power to take water under Waterworks Clauses Act, 1052, Watercourse. See Drain — Water. natural right to use of, 160. rights acquired by prescription to use of, 152, 160. artificial, right to, e.g., mine-adits, drains, &c., 163. grant of right of, 129. right to stop up, if used for other purposes than those granted, 218. prescriptive right to pollute, 162. repair of, in alieno solo, 121, 160, l88, 218. Injunction to prevent obstructions to repair of, on another man's land, 112. along turnpike road, repair of, 318. obstruction of, is a nuisance, 223. right to obstruct, if doing damage, removal of obstructions to, on another's land, 271. Stoppage of, on another's land to prevent injury by flood, &c., to one's own, 271. when a nuisance, new sewer to be provided, 266. Way. See Highway — Turnpike Road — Statutory Compensation. private or accommodation, title to soil of, 410. right of, arising from long user, 151. right of, under Prescription Act, 149, 152. what enjoyment of, sufficient to give right under Prescription Act, 157. proof of right of, by user, express grant, &c., 203. reasonable exercise of right of, is a question for the jury, 205. user of, by stealth, or by license, or without knowledge of landlord over land let on lease, does not confer right, right of, over lands vested in tenant for life or for a long term, 173. dedication of, by tenant for a long term, 158. right of, must be appurtenant to land, 130. right of, by permission, 130. assignment of right of, 130. transfer of right of, 130. for carriages includes a footpath, right of, if 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, deviations from, are a trespass, unless the way is public, right of, by license, when revocable, 1 16. of necessity, will pass on sale or demise of house, 118. of necessity, pass, or are reserved by law, without any express words of convey- ance, 120. of necessity, ceases when necessity for it ceases, and revives when necessity re- vives, 181. of necessity is not destroyed by unity of ownership, right of, not lost by mere non-user, 176. abandonment of, 180. abandonment of right of, not to be inferred from mere non-user, 180. user of new, substituted, is an exercise of the right over the old, 179. right of private, not extinguished by dedication to public, 180. forfeiture of right of, by non-performance of conditions, e.g., repairs annexed to the grant, 182. right of, when extinguished by unity of ownership, and how re-created, Of revived, 186. repair of, in alieno solo, 121, 188. obligation to repair ratione tenurse, 188. to the pamgraphs.-\ INDEX TO THE TEXT. 935 Way — Continued. grantor of private, may be bound to repair, 284. repair of, by Highway Board, in return for its public use, 317. Injuries from the dangerous state of, 229. obstruction of private, by gates, when actionable, 207. obstruction to, whether public or private, is actionable whether enjoyed as a right or by permission, 195. obstruction of, is actionable, both against tenant and stranger who caused the obstruction, 195. obstruction of, is actionable without special jdamage, 212. obstruction of, is actionable by reversioner, 212. obstruction to right of, may be abated, 189. obstruction of, is indictable by any one, including reversioner, 195. declaration for obstructing, 197. for non-repair of, 197. injunction against disturbance of right of, though granted by parol, 213. right of public, not ascertainable by a bill of peace, 2i6. Weir. See Fishery — River. Well. See Pump — Water. right to take water from, belonging to another, 113. right to use, by permission, will not pass on sale of house, 118. abstraction of water from, by an adjoining owner digging a deeper one, is not actionable, 1055. right of support to, from owner of adjoining land, 84. obligation to fence, 228. penalty for fouling water in, 276.' Wharf. See Dock — Sea- Walls. liability for existence of, if an obstruction to a navigable river, 235. whether an indictable obstruction to navigable river, 314. Wharfinger, negligence of, in care of article warehoused, 600, 603. lien of, 614, 624. may sell goods to satisfy his charges upon them, 627. Wife. See Children — Coverture — Married Woman — Settlement. liability of, for torts after death, or transportation of husband, or in case of di- vorce, judicial separation, or protecting order, 1313. communications to, may be evidence of husband's knowledge, 290. conversion of property by, 526. not liable for false representation that she was single, 51. not liable for false representation that signature of bill of exchange was her hus- band's, 51. can not authorize distress, 1313. can not sue for deprivation of her husband's society by slander, 51. when to be joined with her husband in actions of tort, and when not, 1294, 1295. when choses in action of, vest in trustees in bankruptcy of husband, 1302. persuading of, to live apart from her husband, is actionable, 18. inducing, to separate from her husband, or harboring her after she has separated, is actionable, 1271. damages recoverable, 1286. seduction of, while living with her parents is actionable, 1277. right of access to children, and to custody of, up to seven in certain cases, 1259. right of, to protection order, when deserted by her husband, and its effect oa her property, her right to sue, and liability to be sued, 1233, 1234. desertion, what amounts to, 1235. right of, to restitution of conjugal rights, 1236. to alimony, pendente lite, 1237. to judicial separation on ground of adultery, cruelty, or desertion, 1238, 936 INDEX TO THE TEXT. \ The references art Wife — Continued. cruelty, what amounts to, 1238, 1239. desertion, what amounts to, 124O status of, after a judicial separation, 1241. right of, to alimony after a judicial separation, 1242. when entitled to dissolution of marriage, 1243. connivance or condonation of adultery, 1248. competency of, to give evidence in cases of adultery, 1262. right of, to alimony after divorce, 1249. settled property of, may be ordered by Divorce Court to be paid to husband oi children, 1251. Wild Fowl. See Decoy-Pond. Wind. See Air — Mill. Windmill, right to wind coming to, 153. illegality of, adjoining highway, 230. illegality of, adjoining turnpike road, 230, n. Window. See Air — Light — Waste. right to enlarge, 169. effect of alteration in, upon right to light, 179, Wine, mixing of, with water is a conversion, 468. Witness, not liable for false statements in the course of a judicial proceeding, 51. depositions of, disabled by permanent illness, are admissible, 1381. privileged from arrest, 916. Workman. See Master — Servant. liability of, for negligence in performance of work, 569. injuries to, from dangerous or defective machinery, ladders, &c., 256. if duty of fencing machinery &c., be imposed by statute, 356. lien, of, 610, 614. Workshop. See Noise. Wood. See Estovers — Turf. Wreck. See Ship. Writ, how proved, 946. INDEX TO AMERICAN NOTES. [References are to volume and page^ Animals. affected with contagious disease, nuisances, i. lo. horse affected with glanders, i. II. sheep affected with foot rot, i. il. vicious dogs, liability for injuries inflicted by, i. 43, 883. scienter may maintain trespass, when, i. 396. Hog-pens, nuisance, when, i. 234. Innkeepers, liability to guests for loss of goods, i. 752, 753-758. who are iniikeepers, i. 752, 753. what is an inn, i. 753. degree of care required of, i. 752-758. may limit his liability in certain cases, i. 753. who are guests, i. 753, 754, 755. negligence of guest excuses landlord, i. 755. what is baggage, i. 756. innkeeper's lien, i. 756, 757. goods left at the inn by a guest to be kept for him after his departure, i. 75'- Judges, not liable for strictly judicial acts, i. 32, 33, 34 ; ii. 102, 103. not even if corrupt or malicious, i. 32, 33, 34 ; ii. 102, 103. Hability of judges of courts of limited jurisdiction, i. 32-34 ; ii. 102, 103. for ministerial acts, i. 33, 100. Justices of the Peace, • powers and duties of, ii. 175, 176. liability of, for acts not within their jurisdiction, ii. 176, I97i 201, 30t. for acts corruptly, maliciously, or willfully done, ii. 176. power to issue search-warrants, ii. 177. arrests by, ii. 178. issuing warrants without authority, ii. 178, 183. must conform strictly to statute, ii. 178. jurisdiction when title to land is concerned, ii. 194, 195, 196. power to commit for contempt, ii. 215. Uteral Support, right of, lost, how, i. 98. volumi and page:\ AMERICAN NOTES. 943 Ziibel, what is, ii. 305, 307, 308. what is libelous, ii. 306, 311-317. special instances, ii. 208, 309. how malice may be established, ii. 311-317. reasonable and probable causes, ii. 314. privileged communications, what are, ii. 317-321, 328, 329. proceedings of courts of justice, publication of, when actionable, ii 321. newspapers, rights of, ii. 341. License, must be specially plead, i. 433. revocable when, i. I2g, 130, 131. distinction between, and easement, i. I2g, 130. when not revocable, i. 130, 131, 433, 434. how far a defense, i. 433. exceeding license actionable, i. 433. bringing an action revokes the license, i. 434. a license may be implied, i. 452. instances, i, 452. Zilen, when it arises, i. 671, 672, 673. how enforced, i. 672. how lost, i. 672, 674. by wrongful conduct, i. 674. attorney's lien, for what it exists and to what it extends, i. 681 68a carrier's lien, i. 744. Lights, Ancient, English doctrine not recognized, i. 148. Lime Kiln, nuisance, when, i. 234. Iiivery Stable, nuisance, when, i. 234. Malicious Prosecution, to sustain action for, malice and want of probable cause must be shown ii. 65 71, 72. how established, ii. 65, 66, 67. malice may be inferred, when, ii. 67. want of probable cause must be proved, ii. 67, 68, 71, how probable cause may be shown, ii. 67, 68, 71. advice of counsel, when a protection, ii. 74. what the declaration should allege, ii. ".q. a person who instigates or promotes proceedings liable for, ii. 85. corporation can not be made liable for, ii. 86. Mandamus, when it lies, ii. 3088-3103. Master and Servant, liability of master to servant for injuries resulting from use of dangerous ma- chinery or materials, i. 276, 277, 278. degree of precaution required froi» the employer, i. 276, 693. instances, i. 276, 277. what risl may maintain action, i. 372. trover lies for property severed from freehold, when, i, 37a. what will justify waste, i. 382. Water Course. what constitutes, i. 104. rights in, i. 95, 103, 104. actionable injuries to, i. 107. pollution of water of, i. 107. Way, right of, may be proved, how, 1. 43%