EDITh Cornell University Library KD 671.W21 1891 A rubric of the common law :being a shor 3 1924 017 841 705 CInrnpU ICam ^rtynnl ICibtary RUBRIC OF THE COMMOISr L^^V^. Cornell University Library The original of tiiis book 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/cu31924017841705 A RU The Common BEING A SHORT DIGEST OF THE CQM^m LAW, Illustrated throughout by Leading Cases. OHAELES GEOBGE [^ALPQ LE, M.A,, O/tTie Inner Temple, Barrister-at-Law ; Attorney-General of pis L^a^'f^an^^. <> ; % Seconb B&mon. STDISTET HASTIIsrG-S, B.A., Of the Inner Temple, Barrister-at-Law ; Autlwr of a" Treatise on. Torts," " Fraud and Misrepresentation," See. LONDON: SHAW & SONS, FETTEE LANE AND CRANE COURT, 2Law iprfntcrs an& ipubllsbers. 1891. i)l99^^ LONDON : PRINTED BY SHAW AND SONS, FETTER LANE AND CRANE COURT. TO THE RIGHT HONOURABLE SIR FITZPfOY KELLY, LOED CHIEF BARON, Urn mark IS WITH HIS PERMISSION-. • • * DEDICATED BY THE AUTHOR. PREFACE TO THE SECOND EDITION. Since the First Edition of the present work was published in 1880, many important Acts affecting the Common Law, such as the Employers LiabiHty Act, 1880, the Married Women's Property Act, 1882, the Bankruptcy Act, 1883, and the Directors Liability Act, 1890, have been added to the statute book. The effect of these statutes, together with many others enacted during the past ten years, will be found embodied in the following pages. In order that the book may be of further use, not only to the student but also to the legal practitioner, a considerable number of recent cases have been added to those cited in the First Edition. S. H. 2, MiTBB Court Buildings, Temple. Janwury, 1891. PEBFAOE TO THE FIRST EDITION. This book it is hoped may be of use to students, and is intended to serve as a kind of skeleton, whereon may be subsequently adjusted the various ramifications, details, and distinctions, which are to be sought for and found in the great text-books. The general principles of common law are, on the whole, simple and clear ; and it is the mass of cases reported, a large proportion of which turn upon their own peculiar facts, to which facts the general principles have to be applied, that makes each branch of law appear so formidable to the beginner. When once the general principles are firmly planted in the head, the student will follow the cases, which are corollaries or exceptions to those principles, and appreciate the decisions of the judges therein, with, facility and profit ; but until these general principles are clearly laid hold of, he is overwhelmed with what appears to him a chaotic and heterogeneous mass of legal learning. I have therefore endeavoured to sketch out a backbone for the student to work upon, which, though I feel it must be very incomplete, will, I trust, enable the reader to marshal his ideas. My object has been, as far as possible, PREFACE. to present a series of legal canons, and to illustrate these, where the meaning and effect would not be absolutely patent to the novice, with short abstracts of reported cases ; in this way combining a digest with a collection of leading authorities. I have adopted the somewhat novel plan of printing in two colours, under the belief that such an arrangement might help the student to take a bird's-eye view of what is contained in these pages ; and this plan must constitute my apology for the somewhat fanciful name of a "Kubric of the Common Law." C. G. W. 3, Papee Buildings, Temple. June, 1880. TABLE OF COITTEK'TS, Chaptee PAGE cases cited xi BOOK I. I. Common law 1 II. A right of action .. 3 III. Forms of action .. 5 IV. Parties .- 8 V. Statutes of Limitation .. 13 VI. Of contracts generally .. 16 VII. Contracts of record and sisecialty . .. 17 VIII. Simple contracts .. 20 IX. Of the discharge of contracts .. 26 X. How a contract is vitiated ... .. 29 XI. The remedies for a hreach of contract .. 35 XII. Contracts which must be under seal .. 37 XIII. Contracts which must be in writing .. 41 XIV. Of torts generaUy .." 50 BOOK II. OF PARTICULAR CONTRACTS. Chapter I. Contracts for the sale of goods „ II. Fraudulent sales of chattels ... „ III. Of a sale of goods. — 1. With a warranty ... 2. On a condition precedent 3. By fraudulent represent! tions „ IV. Contracts for work and labour 5, V. Bailments „ VI. Contracts of indemnity. — 1. Guaranties 2. Insurance „ VII. Contracts made with and by agents... 53 62 64 68 70 72 81 95 100 107 xii TABLE OF CONTENTS. PAGE ChapteeJVIII. Contracts in relation to marriage 127 „ IX. Instruments negotiable by indorsement and delivery 139 „ X. Landlord and tenant 155 BOOK III. RELATING TO PAETICULAE TOETS. Part I. Of the Infringement of the Private Rights of Owners and Occupiers of Land. Cfaptee I. Servitudes 177 „ II. Waste 196 „ III. Trespass to land 201 Paet II. Of Breaches of Duty by the Oumers and Occupiers of Land. Chapteb I. Nuisances 204 „ II. The negligent use of real property 211 Part III. Of the Infringement of the Bights of Owners of Chattels. Chapter I. Trespass and conversion ... ... ... ... 213 „ II. Wrongful distress 218 Part IV. Of Breaches of Duty in the Management of Chattels. Chapter I. Of the negligent use of chattels 224 „ II. Negligent conduct of the bailees of chattels... ... 231 Part "V. Of the Infringement of the Rights of the Person. Chapter I. Battery and assault „ II. Of false imprisonment „ III. Of malicious prosecution and conspiracy ,, IV. Of defamation of character 233 234 247 250 TABLE OF CONTENTS. Xlll Part VI. PAGE Of Breaclies of Duty in Relation to the Person. Chapter I. Negligenc personal conduct 264 „ II. Of fraudulent representations 265 Part VII. Injuries resulting from the Exercise of Statutory Powers 272 Part VIII. Of the Relation of Master and Servant ... ... ... ... ... 276 BOOK IV. Damages 293 APPENDIX. 29 Car. II. c. 3, preamble and sects. 1, 2, 3, 4, 17 (Stat, of Frauds) 311 9 Geo. IV. c. 14, ss. 6, 7 (Lord Tenterden's Act) 312 1 Win. IV. c. 68 to s. 8, inclusive (The Carriers Act) 313 2 & 3 Will. IV. c. 71 to s. 4, inclusive (The Prescription Act) ... 314 8 & 9 Vict. c. 106, ss. 3, 9 (An Act to Amend the Law of Eeal Property) 318 17 & 18 Vict. c. 31, s. 7 (The Railway and Canal Traffic Act, 1854) 318 19 & 20 Vict. c. 97, s. 3 (The Mercantile Law Amendment Act) ... 319 26 & 27 Vict. c. 41 (The Innkeepers Act, 1863) 320 28 & 29 Vict. c. 86 (The Law of Partnership Amendment Act) ... 321 45 & 46 Vict. c. 75 (The Married Women's Property Act, 1882) ... 322 53 & 54 Vict. c. 64 (The Directors Liability Act, 1890) 323 Index of examples 327 Index of illustrative cases 330 General index 339 TA3LE OF OASES OTTED. Abrath v. North Eastern Railway Company i Ackerman v. Ehrensperger Ackroyd i'. Smith Acton, Atkin r. Adames, Field v Adams, Whiteley v Addison v. Gandesequi Affleck V. Child Agar-EUis ti. Lascelles Alcott, Bennett, v Aldous V. Corn well Aldridge ■!). Johnson Allbntt V. Council of Medical Edu- cation Allen, Huffer v Allen ■!». Jackson Allen V. Wright Alton V. Midland Bailway Company Ambler, Turner v Ambrose ■!;. Kerrison Amicable Society 13. BoUond Ancona v. Marks Anderson, Read v Andrews, Me Andrews f. Salt Angus, Dalton v. Anon Appleby v. Eranklin... Appleby i). Myers Arden v. PuUen Armoury v. Delamirie Ashby V. White Ashlin V. White Ashton, Storey v. Ashton, Taylor v. Astley s>. Weldon Atherston, Mckells v. Atherton, Udell v. ... Atkin V. Acton Atkinson, Richardson v Attack V. Bramwell Attenborough, Morley v Austin V. Guardians of Bethnal Green Union Avery ■». Cheslyn Avery, Schmaltz v 247 295 181 73 203 254 115 255 291 287 153 255 18 127 234 287 248 138 ... 106 ... 113 ... 32 ... 289 ... 291 ... 187 236, 264, 266 ... 51 ... 77 ... 165 ... 216 8 ... 265 ... 277 ... 265 • ... 308 ... 167 264 73 214 296 65 71, 116, 39 198 120 B. PAGE Bacon, Spice v. 87 Badcock, Stephens v. log Baddeley v. Earl Granville 283 Jiailey, JSie parte 289 Bailey i). Bidwell 146 Bailey, Eitzmiaurice "!). 47 Bailey «. Lloyd 124 Bailey, Williams v 29 Baines v. Ewing 119 Baker, Cork v. 41 Baker, Horn v. 197 Balchin, Bowditoh « 241 Baldwin v. Cole 214 Bail, Hx parte 51 Balls, Hill V 68 Bamford v. Shuttleworth 123 Bamford v. Tumley 205, 209 Bank of England, Vagliano v. ... 153 Bannerman v. White 69 Bannister, Eichholz 1). 65 Barker, Price ■!). lOO Barker 1). Richardson 191 Barnard, Lord, Lord Vane v. ... 197 Barrett, Towers v 295 Barron "!). Fitzgerald no Bartonshill Coal Company ly. Reid... 283 Barwick v. English Joint Stock Bank 268 Baseley, Seward v .. 23 Bates, Gerhard v 264 Batson «. Newman 33 Bauman v. James 48 Baxendale, Hadley v. ... 294, 300 Baxend^le, Rice v 295 Baxter, Kelner i; 121 Baxter, Tarling ■» 56 Bayes, Bennett v 219 Bayea, Lee 1) 54 Bazeley 1!. Eorder 137 Beal V. South Devon Railway Com- pany 231,232 Beardman u. Wilson 162 Beaumont D. Brengeri 44 Beck «. Rebow 198 Beckwith v. Philby 241 Beer, Eoakes «. 28 Beeston «. CoUyer 72 Behn v. Kemble 265 XVI TABLE OTT OASES OITBD. PAGE Bell «. Welch 96 Benham, Tod-Heatly r 204 Benjamin?!. Storv 298 Bennett «. Alcott 287 Bennett u. Bayes ... ... ... 219 Bennet r. Moita 278 Bennett v. Reeve 181, 182 Bennett, Eeuno (■ 73 Bentrall 1). Burn 46 Bentley t'. Vilmont ... ... ... 53 Berkeley r. Hardy ... ... ... Ill Bernard, Lord, v. Lord Vane ... 197 Berrlnger v. Great Eastern Railway Company 286 Best, Dyer D 14 Bidwell, Bailey r ... 146 Biffin -B. Bignell 137 Bigland, Thorn I' 265 Bignell, Biffin D 137 Birch ?). Dawson 198 Bird V. Gammon 95 Bird, Webb (' 190,191 Bishop V. Elliot 198 Bistoli, Phillips r 43 Blades •!!. Eree 132 Blake's case 27 Blake v. Midland Railway Company 292 Blakeway, West v 26 Bland, Wainwright r. 106 Blockey, Waddell i; 109 Blogg, Sturt V 262 Bloodworth v. Grey 251 Bloxham v. Sanders 60 Bluett, Knowlman « 43 Blundell, Boydell B 42 Blundell, Duncan « 76 Boast D.Eirth 74 Bolingbroke, Lord, i . Local Board of Swindon 277 Bolland, Amicable Society v. ... 106 Bolton r. Madden 21 Bolton 1). Prentice 136 Bott, Hiort?) 215 Bourke, Eorgan ■» 72 Bowditch «. Balchin 241 Bowditch, Southwell r 122 Bower v. Peate 280 Boweren, Grymes f 198 Boydell I'. Blundell 42 Braddick, Wood D 126 Bradfield Union, Nicholson ■!•. ... 40 Bradlaugh D. Newdigate 30 Bralley 1). Copley 217 Bradwell, Lindus v , 131 Braithwaite, Lampleigh v 22 Bramwell, Attack -!) 296 Brandon, Mainwaring B 299 Brengeri, Beaumont i;. 44 Brewster, Walker i; 206 PAGE Bridge, Robins ?! 128 Briggs, Robinson v 63 Brisco, Harris r 30 Bristol and Exeter Railway Company, Collins (■ 93 Bristowe, Grissell r 119 British Columbia Saw Mill Company ('. Nettleship 301 British Mutual Banking Company v. Chamwood Eorest Railway Com- pany... _. ... 116 Brogden, Humphries r 180 Bromage v. Prosser 253 Brooks, Pearce r 30 Broom ■B.Hall 299 Brounker, Callo r 73 Brown 1). Edgington 66 Brown, Suffield v 185 Brown, Tickle v 188 Brown, Tindal v 149 Brownlow v. Metropolitan Board ... 273 Brunswick, Duke, Gregory r. ... 249 Bryant ?;. Foot 2 Bryant D. Herbert 6 Bryson ?). Whitehead 35 Budd t>. Eairmauer 64 Bunch, Great Western Railway Com- pany!; 90 Burchell, Eastland r 135 Burdett, May r 208 Burgess ■». Gray 280 Burn, Benthall ■« .'. 46 Buron «. Denman 233 Bush, Harrison -!) 254 Bush, Weaver v 283 Bushell, Edmunds r lis Bushell V. Miller 213 Bnsst V. Gibbons 248 Bygrave, Gardner •!) 233 By well Castle, The 227 C. Callo r. Brounker 73 Calvert, Clark v 220 Cauali, Valentin! r g Carew r. Duckworth 152 Carr v. Hood 255 Carrol, Gainsford r 294 Cartledge v. Cartledge ... ,"' 288 Caton V. Caton ... ... ... 128 Cator V. Lewisham Board of Works" 278 Cave V. Hastings 43 Cawkwell «. RusseU ..[ 195 Chadwick, Trower » 2II Chamberlain 1;. King... ... 245 Chambers v. Clarke ..[ 305 Chambers, Hutchings v. ... '..'. 218 Chanter t!. Hopkins .", 67 TABLE OF OASES OITED. xvu Chaplin, Coates v. Chaplin v. Kogers Charles, Poster v. Chamwood Forest Railway Com- PAGE . 89 . 44 265 116 249 pany, British Mutual Banking Companyi) Charrington, Lea v Chartered Mercantile Bank of India ('. Dickson ... 150 Chasemore v. Richards 4, 50 Chatfield, Comerford c 248 Chesemau ?i. ExaU 83 Cheslyn, Ayery V 198 Cheveley, Goodwin i: 202 Child ■!). Affleck 255 Church V. Imperial Gas Company ... 40 Glaggett, George « 113 Clark V. Calvert 220 Clark V. Molyneux 254 Clarke ■». Chambers 305 Clarke t'. Hohnes 282 Clarke, in re Clarke c. MiUwaU Dock Company 199 Clarke, Reynolds v 201 Clegg r. Hands 160 Clementson, Coulthart v 99 Clongh, Williams •« 281 Coates V. Chaplin 89 Cochrane, Ewart ■!) 185 Cochrane «. Moore , 37 Cochrane «. Willis 30 Cocking ■». Ward 42 Cockrell, Francis v 84 Colbum, Planchg 1! 79 Cole, Baldwin r 214 Cole, Young v 70 Colenmn, Glover r 195 CoUard v. South Eastern Railway Company 297 Collen v. Wright 121 Collins B.Bristol and Exeter Railway Company 93 CoUinson v. Margetson 15 CoUyer, Beeston u 72 Comerford, Chatfield v 248 Cook, Leeds v 129 Cook r. Ward ' ... 252 Cooke, Lee 1) 218 Cooke V. Wildes 262 Coombe «. Woolf 98 Cooper, Davidson ■!) ... 153 Copley, Bradley « 217 Corbett, Douglas 1' 249 Cork «. Baker 41 Cork and Bandon Railway Company V. Goode 19 Cornelius, Harmer ■« 74 CornweU, Aldous v 152 Corporation of Seaford, Crook t-. ... 40 PAGE Cory v. Thames Iron Works Company 298 Coupland, Parmiter ■!;. 259 Coulthart v. Clementson 99 Council of Medical Education, AUbutti; 255 Couturier v. Hastie 107 Coxhead v. Richards 255 Crasweller, Mitchell i; 277 Crauford, Lucena I" 102 Crawshay 1!. Eades 61 Crockford, Knight v. 48 Crofts, Parton v 48 Crook V. Corporation of Seaford ... 40 Cross, Rex -!) 208 Crosskey f. Mills 109 Crossland, North Eastern Railway Company «. 187 Crouch V. London and North Western Railway Company 90 Croydon Gas Company v. Dickenson 98 Crozier ■;;. Tomkinson 221 Cubley, Pigot r 83 Cuckson ■«. Stones 74 CuUen V. Thomson 9 Cumber v. Wane 28 Curtis, Me 289 Curtis V. Williamson 120 Cutter «. Powell 77 D. Dalby v. Indian and London Assu- rance Company 105 Dale, Humfrey « 116 Dalton ■«. Angus 187 Dalzell, Lynch v 104 Dames, Indermaur 1). 207 Daniel D. North 189 Darrell «. Tibbitts 105 Darthez, Mitchell ■» 79 Davenport, Farrell v. 159 Davenport, Thompson « 114 Davey v. Shannon 42 Davidson v. Cooper 152 Davies v. Duncan 258 Davies v. England 282 Davies 1). Mann 227 Davies, OfEord 4) 99 Davies, Penton ■« ,. ... 304 Davies v. Sear 186 Davies v. Solomon 250 Davies v. Williams 202, 287 Davison, Robinson v. ... ... 80 Dawber, Foster iJ 149 Dawber, Stead i; 27 Dawson, Birch v 198 Deane v. Keate 85 Debenham v. Mellor 133 De Crespigny, Wellesldy v 252 XVUl TABLE OF OASES CITED. PAGE Deflinne, Parrer I! 126 Delamirie, Armoury v 216 Delany 1). Eox 165 De la Tour, Hochester v 79 Delaval, Rex v 289 De Manneville, Rex r. 289 Denman, Buron v. ... ... ... 233 Derby, Earl, Winterbottom r. ... 207 Derrett, Kemp r. ... ... ... 157 Derry -!). Peek 269 Devroi v. Meyer 140 Dickenson r. Gupp ... ..,. ... 64 Dickinson, Croydon Gas Company r. 98 Dickson, Chartered Mercantile Bank of India t'. ... ... ... ... 150 Dixon «. Hurrell ... ... ... 135 Dixon r. Metropolitan Board of "Works ... 204 Dixon, Scott v. 264 Doe d. Graves v. Wells ... 170, 171 Doe d. Worcester School Trustees t. Rowland 294 Doorman D. Jenkins 231 Douglas i\ Corbett 249 Dowson, Pickering r. 268 Driffield, Leak v 130 Duckworth, Carew t>. 152 Duke of Brunswick, Gregory r. ... 245 Duncan D. Blundell 76 Duncan, Davies r 258 Dunlop V. Lambert 89 Dunn, McClean t- 115 Dunn, Richardson v ... 299 Dunsmore, Read ?; 73 Duppa «). Mayo 219 Dutton t'. Samuelson 89 Dyer r. Best 14 E. Eades, Crawshay v Eager v. Grimwood ... Eastland I'. Burchell Eastwood, Hellawell r. Eddowes, Stewart « Edgware Highway Board v. Harrow Gas Company Edgiugton, Brown t". Edmonds, Goring ■» Edmunds v. BusheU Edwards, -Ek parte Edwards v. Halinder Edwards, Levy v Egerton, Gautret r Ehrensperger, Ackerman v.... Eicholz I'. Bannister Elliot V. Mcklin EUiotson ■». Feethaili The 61 287 135 197 48 22 66 99 118 291 211 242 265 295 65 287 209 PAGE 198 279 45 137 68 282 268 132 286 48 249 185 119 83 25 Elliott, Bishop 1) Ellis V. Sheffield Gas Company Elmore i: Stone Emery i\ Emery Emmerton v. Mathews England, Davies r. .„ English Joint Stock Bank, Barwick c, Etherington r. Parrott Evans ■!). Walton Evans, Wilkinson r Evered, Hope r Ewart r. Cochrane Ewing, Baines 1). ... Exall, Cheeseman t' Exall V. Partridge P. Pairmaner, Budd r ... 64 Parina i\ Silverlock 270 Parrer v. Deflinne 126 Parrell I'. Davenport 159 Parren, Kemble r 310 Pawcett V. Midland Railway Company 211 Peetham, EUiotson r. 209 Pelton, Hoeyr 304 Perguson, Sainter r 308 Pestiniog Railway Company, Jones r. 273 Pield ■!). Adames 203. Pield, McMahon r 294,302 Pinch-Hatton, Wilson r 164 Pinden, Kemp v 100 Pirth, Boast r 74 Pitzgerald, Barron v. 110 Pitzgerald I;. Northcote 233 Pitzmaurice r. Bailey 47 Pletcher ij. Marshall 108 Pletcher 1). Rylands 205 Poakes v. Beer 28 Pogg, Selway r. ... 29 Poot, Bryant r 2 Pord V. Porster 270 Porder, Bazeley v 137 Porgan i\ Bourke ... 72 Porster i: Charles 265 Porster v. Mackreth 144 Poster «. Dauber 148 Poster, Pord f. 270 Poster V. Stewart 288 Poster, Strong v 99 Poulger ». Newcomb 251 Poulkes r. Selway 129 Powler r. HoUins 214 Pox, Delaney v 165 Pox i;. Gaunt 234 Pox, Wiggett « 283 Prance v. Gaudet 298 Prance, Yarmouth 1! 283 TABHE OP OASES CITED. XIX PAGE Francis v. Cockrell 84 Franklin, Appleby r. 51 Free, Blades v 132 Freeman, Pasley v 266 Fryer 1). Kynnersley 254 Furbor, Warrington r 100 ^jnn, Ex parte 289 G. Gainsford v. Carrol 294 Galsworthy «. Strutt 306 Gammon, Bird v 95 Gandesequi, Addison r 115 Gandy, Gott (• 165 Gardiner, Onley r 190 Gardner ^. Bygrave 233 Gardner 1). Grout ... 44 Garnett, Paley ■!) 283 Gaudet, France !• 298 Gaunt, Fox r. ,234 Gaussen v. Morton 108 Gantret v. Egerton 265 General Omnibus Company v. Limpua 278 George v. Claggett 113 Gerhard p. Bates 268 Gibb I'. Mather 149 Gibbons, Basst t' 248 Gibbons *. Pepper 233 Gibbs r. Guild ... 18 Giblin c. McMullen 231 Gibson, Smale v 102 Glazebrook, Pearson r 173 Glover, Ex parte 291 Glover ». Coleman 195 Godfrey v. TumbuU 125 Goldsworthy, Be 285 Goode, Cork and Bandou Railway Company 1). 19 Goodwin v. Cheveley 202 Gordon, Jones c 147 Goring t!. Edmonds 99 G OSS ■». Lord Nugent 27 Gott «. Gandy 165 Gould ?i. Robson 150 Graham i;. Hope 125 Granville, Earl, Baddeley r. ... 283 Gray, Burgess v 280 Gray i;. Jefferies 286 Gray v. Stait 173 Great Eastern Rcilway Company, Bergheim v. 91 .Great Eastern Railway Company. Berringer v. 286 Great Northern Railway Company, Laurence'!?. 272 Great Western Railway Company v. Bunch 90 ' ■ h PAGE Great Western Railway Company, Jeffries v 217 Great Western Railway Company, Membery i' 283 Green r. General Omnibus Company 9 Green, Price ■». 31 Gregory ». Duke of Brunswick ... 249 Grey, Bloodworth v 251 Griffin, Lee '0. 76 Grimwood, Eager « 286 Grimwood v. Moss 170 Grissell ■». Bristowe 119 Grote, Young v 153 Grout, Gardner « 44 Grymes v, Bowerin 198 Guardians of Bethnal Green Union, Austin V 39 Guild, Gibbs -e 12 Gupp, Dickinson v 64 Gurney, Palliser v 130 Gurney, Peekr , ... 269 Gutteridge ■!). Munyard 163 Gye, Lumley r. 286 H. Hadley v. Baxendale... 294, 300 Hailes v. Marks 248 Hales, ITsil '(' 257 Halinder, Edwards v. 211 Hall, Broom v. 299 Hall V. Hollander 288 Hall D.Wright 129 Hamilton v. Mohun ... 127 Hammond v. Eeid ... 103 Hampden v. Walsh ... 33 Hanbury, Liebeg's Extract of Meat Company c. 271 Hancock, Sharpe r 178 Hands, Clegg i) 160 Hardinge, Smalley ■!). 168 Hardman v. Wilcock 110 Hardy, Berkeley %• Ill HariJy, Reg. ■» 51 Harmer i'. Cornelius 74 Harper ii. Williams 305 Harris v. Brisco 30 Harrison V. Bush 260 Harrison r. Jackson 124 Harrison v. London, Brighton, and South Coast Railway Company ... 89 Harrison T. Seymour 97 Harrison, Sheffield Permanent Build- ing Society xi 199 Harrison, Wyatt « 179 Harrow Gas Company, Edgware Highway Board 1) 22 Hart, Kenyon xi 201 Hart, Proiidfoot v 163 XX TABLE OF OASES CITED. PAOB 59 165 293 107 48 78 Hart V. Mills Hart «'. Windsor Harvey, Merest I- Hastie, Couturier ■» Hastinge, Cave r Havelock, Roberts i^ Hawkins, Metropolitan Saloon Omni- bus Company v 9 Hawkins v. Xodd 255 Hawksworth «. Hawksworth ... 291 Hay ward, James 1) 206 Hayward, Thomas ■» 161 Heath, Schneider « 71 Heaven 1). Pender 50 Hellawell ?!. Eastwood 197 Henderson D. Squire 165 Herbert, Bryant i;. ... ... ... 6 Hermann v. Seueschall 245 Hetherington v. North Eastern Rail- way Company 296 Heugh V. London and North Western Railway Company 94 Hewlins «. Shippam 184 Hickman, Wheatcroft ?• 124 Higgins 1). Senior 116,122 Hill «. Balls ' ... -68 Hill, Metropolitan Asylums Board i: 208 Hill«. Royds 124 Hindley v. Lord Westmeath ... 137 Hindman, Robinson i: 73 Hiort«. Bott 215 Hiort V. London and North Western Railway Company 216 Hoadley D. McClaine .. ... 47 Hobbs ■». London and South AVestern Railway Company 302 Hochester 1). De la Tour 79 Hoey, Eelton ii 304 Hole V. Sittingbourne Railway Company 281 Hollander, Hallr 287 HoUins, Eowler 1! 214 Holmes ■!). Clarke 282 Hood «. Carr ... ... 259 Hope V. Evered 249 Hope, Graham ■!) 125 Hope «. Hope 290 Hopkins, Chanter ■» 67 Hopkins 1). Tanqueray 70 Hopwood V. Thorn 256 Horn 1). Baker 197 Home 1}. Midland Railway Company 303 Horsfall r. Thomas 265,268 Horsford t'. Webster 219 Horwood V. Smith 54 Howard V. Steward 117 Howe, Southern v •.. ... 270 Hughes V. Percival 280 Humble v. Hunter 112 Huffer V. Allen Humfrey r. Dale Humphreys r. Jones ... Humphries v. Brogden Hunter, Humble v. ... Hunter v. Parker Huntley v. Russell ... Hurrell, Dixon v. Hurstmonceaux, Rex r. Hutchins, Chambers r. Huth, Ormrod r. Hutley i: Hutley Hynam v. Wye PAGE 18 116 15 180 112 107 197 135 156, 157 218 265 31 84 Imperial Gas Company, Church r. ... 40 Indermaur r. Dames 207 Indian and London Assurance Com- pany r. Dalby 105 Ismay, Mounsey v. ... ... 2 Railway J. Jackson, Allen v. Jackson, Harrison r.... Jackson, Jenkins r. ... Jackson v. Metropolitan Railway Company Jackson, Sanderson i: James, Bauman r. ... James v. Hay ward ... Jarrett v. Kennedy ... Jay V. Robinson Jeff eries. Gray v. Jeffries v. Great Western Company Jenks V. Turpin Jenkins, Doorman v.... Jenkins, Moyle v. Jenkins c. Jackson ... Jewsbury, Swift v. ... Johnson, Aldridge r. Johnson v. Raylton ... Johnston v. Sumner ... Johnstone c. Sutton ... Jolly V. Rees Jones !'. Eestiniog Railway Jones V. Gordon Jones, Humphreys r. Jones r. Just Just v, Jones ... Jones V. St. John's College, ' Company 127 124 206 230 48 48 206 265 130 286 217 34 231 285 206 267 58 67 134 248 133 273 147 15 K. Keate, Deane v. Kelly V. Tinley Kelner r. Baxter 66 Oxford 308 85 258 121 TABLE OF OASES CITED. XXI Kemble, Behn v. Kemble v. Parren Kemp, Derrett v. Kemp V. Jindeu Kenyon 1). Hart Kendrick ■B.,Lomax .. Kennedy, Jarrett «-. .. Kerrison, Ambrose r. Kiddle r. Lovett Kilyert, Robinson v. . . King, Chamberlain v. Kinnersley, Fryer r. .. Knight r. Crockford .. Knight ?). Lynch Knight, Soane r. Knowlman u. Bluett .. Labouchere, Reg. v. ... Lake, Williams Lucas, Nash v. Lucena v. Cranford Lumley v. Gye Lumley v. Wagner Lyall, Robinson r Lynch D. Dalzell Lynch v. Knight M. McClean v. Dunn McClaine, Hoadley v. McCleod, McKenzie v. McEwan v. Smith McGregor, Mogul Steam Ship Com- pany V McKenzie v. McCleod McMahon v. Pield McMuUen, Giblin v Mackretts, Eorster D. Madden, Bolton v Magee v. Lavell Mainwaring v. Brandon Maitland, Willingale 1) Manley, v. Saint Helen's Canal and Railway Company Mann, Davies v PAGE 254 56 150 89 145 94 216 227- 279 302 92 303 230 9 278 48 36 285 219 102 286 26 119 104 250 115 47 278 61 249 ... 278 294, 302 ... 231 ... 144 ... 21 ... 309 ... 299 ... 193 274 227 b 3 xxu TABLE OF CASES CITED. PAGE March ■». March 290 Margetson, CoUiBon v. 15 Marks, Ancona B. ... 113 Marks, Hailes v. ... 2iS Marlborough, Duke of ; Ex parte... 263 Marrable, Smith r .. 161 Marsh, Ruddock i> 132 Marshall, Fletcher )• 108 Martin u. Nutkin 36 Martin r. Smith 156 Mather, Gibb t' 149 Mathews, Emmerton v 68 Mathiessen v. London and County Bank 145 Maule, Spill « 255 May 1!. Burdett 208 Mayer, Squier j; 198 Mayo, Duppa « 219 Mellish, Richardson v. 299 Mellor, Debenham D 133 Membery v. Great Western Railway Company 283 Menlove, Vaughan v 231 Merchant Tailors' Company, Trus- cott, f 192 Merest ■». Harvey 293 Metropolitan Asylums Board r. Hill 208 Metropolitan Board, Brownlow r. ... 278 Metropolitan Board r. Dixon ... 204 Metropolitan District Railway Com- pany, Woodley u 283 Metropolitan Railway Company, Jackson v 230 Metropolitan Saloon Omnibus Com- pany v. Hawkins 9 Meyer, Devroi v 140 Midland Insurance Company v. Smith 51 Midland Railway Company, Alton i\ 287 Midland Railway Company, Blake v. 296 ^Midland Railway Company, Degg r. 280 Midland Railway Company, Faw- cett» 211 Midland Railway Company, Home e. 303 Midland Railway Company, Pontif ex v. 51 Midland Railway Company, Ran- geley D. , 180 Midland Railway Company, Red- heads 90 Midland Railway Company, Stephens u. 247 Mill, Wing V 25 MillwaU Dock Company, Clarke v.... 199 Miller, Bushell v 213 Miller, Long v. 48 Millington, Williams r 120 Mills, Croskey II 109 Mills, Hart v 59 Minton, Raymond 1) 75 Mires, v. Solebay ... ... 57 Mitchell r. Crasweller 277 PAGE Mitchell ». Darthez 79 Mizen v. Pick ••. 135 Moakes I'. Nicholson 59 Mogul Steam Ship Company v. McGregor 249 Mohun, Hamilton v 127 Moita, Bennet r ... 278 Molyneux, Clark v 254 Monsley, Villers 1' 252 Montefiori v. Montefiori 128 Moore, Cochrane ■!) 37 Morley v. Attenborough 65 Morton, Gaussen t 108 Moore ;;. Rawson 194 Moss, Grimwood I) 170 Mounsey v. Ismay 2 Moyce r. Newington 53 Mozley v. Tinkler 96 Munyard, Gutteridge u 163 Murphy r. O'Shea 109 Myers, Appleby r 77 N. Nash r. Lucas .' 219 Naylor, Wharton r 221 Neal, Weldon v 14 Netherclift, Seaman r. 260 Nettleshipj British and Columbia ■ Saw Mill Co. r 301 Newcomb, Foulger v. 251 Newdigate, Bradlaugh v 30 Newington, Moyce v. 54 Newman, Batson 1). ... ... ... 33 Newsom, Randall f 67, 297 Nicholson v. Bradfield Union ... 40 Nicholson, Moakes « 59 Nickells v. Atherston 167 Nicklin, Elliott )• 287 Noble «. Ward 27 North, Daniel I' 189 North V. Smith 276 North British Australasian Company, Swan v 226 North Eastern Railway Company, Abrath v 9, 247 North Eastern Railway Company v. Crossland 187 North Eastern Railway Company, Hetherington r 296 North Eastern Railway Company, • Rumsey r gg North Staffordshire Railway Com- pany, Peek r. 92 Northcote, Fitzgerald v 233 Nowill, Eodgers v 270 Nugent, Lord, Goss v. 27 Nugent t). Smith 86 Nutkin, Martin r 36 TABLE OF OASES CITED. XXUl O. PAGE Oakley ®. Oodeeu 146 Offord V. DaTies 99 Onley v. Gardiner 190 Oodeen, Oakley v 146 Orchard, Roberts v 245 Ormrod r. Heath 265 O'Shea, Murphy r 109 Oswell r. Vigne 102 Oxleyr. Watt 201 Pagham Commissionera, &c., Rex r. 51 Paley r. Gamett 283 Palliser v. Gumey 130 Palmer, Parker r ... 68 Palmer, Solarte v, ... ... ... 151 Pan ton r. Williams 249 Parker, Hunter 1' 107 Parker ■y. Palmer ., 68 Parker r. Taswell 155 Parker r. Winlow 122 Parkinson i;. Lee 68 Parmiter v. Coupland 259 Parrott, Etherington r 182 Parsons, i?J re 130 Parton v. Crofts 48 Partridge, Exhall ■» 25 Pasley ?). Freeman 266 Peek V. North Staffordshire Railway Company 92 Pearce v. Brooks 30 Peason v. Glazebrook 173 Pease, Rex v 270 Peate, Bower ■». 280 Peek, Derryi! 269 Peek V. Gumey 269 Pemberton ■». Vaughan 31 Pender, Heaven r 50 Pennr. Ward 233 Penton ■». Davies 308 Penton v. Robart 200 Pepper, Gibbons D 233 Percival, Hughes v 280 Pettitt, Thompson ?) 295 Phene -c. Popplewell 167 Phesey «. Vicary 184 Philby,' Beckwith V 241 Phillips V. Bistoli 43 Phillips, Kex 1J 268 Phipos, Lanphier « 264 Phippard, Pilliter « 212 Pick, Mizen « 135 Pickering v. Dowson 268 Pickering u. Eudd 201 Piggott, Surey iJ 194 Piggott V. Stratton 168 PAGE Pigot i;. Cubley 83 Pilliter D. Phippard 212 Planche v. Colburn 79 Pocock, Rex v 263 Podmore t). Lawrence 261 Polkinghorn v Wright 233 Pontif ex v. Midland Railway Company 5 1 Popplewell, Pheng (' 167 Potter, Stockport Waterworks Com- pany « 209 Powell, Cutter D 77 Powell, Sharp r 295 Powell, Stanley 1) 224 Prentice, Bolton t' 136 Prentice, Seare f 264 Preston, Tone v 187 Price T. Barker 100 Price •!). Green 31 Price ?;. Seeley 235 Prosser, Bromage r 253 Proudfoot 1). Hart 163 PuUen, Arden ■!> 165 Quartermaine, Thomas v. 283 R. Radley v. North Eastern Railway Company Ramsden v. Brearley.. Randall v. Newsom 67, Rangeley v. Midland Railway Com- pany Rawson, Moore v. Eaylton, Johnson v. Raymond v. Minton Read ■». Anderson Read v. Dunsmore Read, Jewson v. Rebow, Beck i'. Redhead v. Midland Railway Com- pany Eeedie v. London and North- Western Railway Company Rees, Jolly v Reese River Silver Mining Company V. Smith Reeve, Bennett v 181, 182 Reg. v. Cross 208 Reg. u. Hardy 51 Reg. V. Labonchere 262 Reg. % Light 241 Reid V. Bartonshill Coal Company ... 283 Reid, Hammond ^• 103 Renno, Bennet r 73 227 9 297 180 194 67 75 32 73 8 198 90 279 133 265 XXIV TABLE OP CASES CITED, PAGE Eex I). De Manneville 289 Rex «. Delaval 289 Kex V. Hurstmonceaux ... 156, 157 Eex V. Pagham Commissioners, &c. 51 Rex V. Pease 274 Rex V. Phillips 263 Rex V. Pocock 263 Rex I). Smith '. ... 206 Rex i;. Taylor 263 Eex V. Weltje 263 Reynolds v. Clarke 201 Reynolds, Williams r 298 Rice V. Baxendale 295 Richards, Chasemore c 4, 50 Richards, Coxhead v. 255 Richards v. Rose 187 Richardson I'. Atkinson 2l4 Richardson, Barker r. 191 Richardson ■!). Dunn 299 Eichardson v. Mellish 299 Eidgway v. Wharton 48 Eiding ■». Smith 252,299 Eisdon, Lee v. 198 Robart, Penton v 200 Roberts v. Havelock 78 Roberts v. Orchard 245 Roberts D. Smith 281 Roberts v. Taylor 233 Robins ^. Bridge 123 Eobinson v. Briggs 63 Eobinson I'. Davison 80 Eobinson v. Hindman 73 Eobinson v. Kilrert... 205 Eobinson, Jay v I3I Eobinson v. Lyall Il9 Robinson, Todd v 117 Robson, Gould «; I5O Eodgers D. Nowill ... 270 Eoe V. Siddons 186 Eogers, Chaplin v 44 Eohde 1;. Thwaites 58 Rooks, Turner 1) I35 Roscorla t'. Thomas 23 Rose, Richards v 187 Ross, Thompson D • 287 Rowland, Doe d. Worcester School- Trustees V 294 Royds, Hill v. 124 Rudd, Pickering v 201 Ruddock V. Marsh 132 Ramsey v. North Eastern Railway Company 89 Russell, Cawkwell « 196 Russell, Huntley r I97 Eyder r. Eyder 288 Ry lands, Eletcher v 205 S. PAGE Sadler !■. South Staffordshire Railway Company 273 Saint Helen's Canal and Railway Company, Manley i: 274 Saint Helen's Smelting Company f. Tipping 205, 210 Saint John's College, Oxford, 808 308 198 291 89 60 801 48 66 120 71 268 304 260 186 264 85 235 ... 205 ... 129 29 ... 245 116, 122 ... 233 Jones D. Sainter r. Ferguson ... Salmon, Lawton r. ... Salt, Andrews r. Samuelson, Dutton v. Sanders, Bloxam v. ... Sanders 11. Stewart ... Sanderson v. Jackson Schilizzi, Wieler «). ... Schmalts, Avery i. ... Schneider v. Heath ... Scott 11. Dixon Scott V. Shepherd Seaman v. Netherclift Sear, Davies v. Scare v. Prentice Searle v. Laverick ... Seeley, Price v. Selfe, Walter v. Selway, Poulkes v. ... Selway v. Eogg Seneschall, Hermann v. Senior, Higgins v. ... Seward v. Baseley Seymour, Harrison -y. Shannon, Davey «. ... Sharp ». Powell Sharpe v. Hancock Sheffield Gas Company, Ellis v. ..'. Sheffield Permanent Building Benefit Society 1). Harrison Shepherd, Scott « \ Shippam, Hewlins v ' Shirley, Smith v "' Shuttleworth, Bamford v ,[ Siddons, Roe «. "[ Sillem v. Thornton [[[ Silva, Tilbury 1) _"_" Silverlook, Earina v .,] Sittingbourne Railway Company," Hole V _ _ Six Carpenters' Case ."' Smale v. Gibson ." Smalley r. Hardinge [ Smart, Tanner ■» " "" Smith, Ackroyd v [\[ Smith, Horwood f. ... ."." [\'_ Smith V. London and South Western Railway Company Smith, McEwan v .'. \\\ Smith V. Marrable ... 97 42 296 178 279 199 304 184 202 123 186 105 192 270 281 201 102 168 15 181 54 308 61 164 TABLE OF OASES OITED. XXV PAGE Smith, Martin r 156 Smith, Midland Insurance Com- pany V 51 Smith, North r 276 Smith, Nugent r 86 Smith, Reese River Silver Mining Comcany «. 265 Smith, "Rex v. 206 Smith, Riding « 252,299 Smith, Roberts r 281 Smith v. Shirley 202 Smith, Tyson i; 193 Soane r. Knight 259 Solarte «. Palmer 151 Solebay, Mires ?7 57 Solomon, Davies r 250 Solomon t". Vintners' Company ... 188 South Devon Railway Company, Bealr "231,232 South Eastern Railway Company, CoUard'i) 297 South of Ireland Collieries Company «. "Waddle 39 South Stafford Tramway Company, Sadler « 273 Southcote «!. Stanley 208 Southern «. Howe 270 Southwell V. Bowdich 122 Soutten, Dean v 1.S7 Spice c. Bacon 87 Spill i;. Maule 255 Squier r. Mayer 198 Squire, Henderson r. 165 Stafford, Worlaston T 218 Stait, Grayr. 173 Stanley ?'. Powell 224 Stanley, Southcote r. 208 Stead r. Da wber 27 Stephens -iJ. Badcock 109 Stevens v. Midland Railway Company 247 Stevens ■!). Woodward 278 Steward, Howard « 117 Stewart i\ Eddowes 48 Stewart, Poster r 283 Stewart, Sanders r 301 Stockport Waterworks Company r. Potter 209 Stone, Elmore r 45 Stones, Cuckson v 74 Storr, Benjamin v 298 Storey •!;. Ashton 277 Stourton v. Stourton 291 Stratton, Piggott r 168 Stray, Taylor » 109 Strong V. Poster 99 Strutt, Galsworthy t-. 306 Sturt «J. Blogg 262 Suffield «. Brown 185 Surey «. Piggott 194 PAOE Sumner, Johnston v. 134 Sutton, Johnstone v. 248 Swan V. North British Australasian Company 226 Swift v. Jewsbury 116, 267 Swire v. Leach 221 TafB Vale Railway Company, Vaughan « 275 Tanner 1). Smart 15 Tanqueray, Hopkins v 70 Tarling r. Baxter 56 Taswell, Parker ■!; 155 Tatton^. Wade 267 Taylor v. Ashton 265 Taylor, Rex 11. 263 Taylor, Roberts v 233 Taylor 1). Stray 109 Taylor, Willans f 248 Thames Iron Works Company, Cory V 298 Thom V. Bigland 265 Thomas v. Hayward ... 161 Thomas, Horsfall v. ... ... 265, 268 Thomas v. Quatermaine 283 Thomas, Roscorla v 23 Thomas, Tripp v 296 Thompson 1). Pettitt 295 Thompson v. Ross 287 Thompson ■«. Davenport 114 Thomson, CuUen v 9 Thorn, Hopwood r 256 Thornton, Sillem « 105 Thwaites, Rhode 1) 58 Tibbitts, Darrell v 105 Tickle V. Brown 188 Tilbury ■!). Silva 192 Tindal 1). Brown 149 Tinkler, Mozley i> 96 Tinley, Kelly v. ... ^. ... 258 Tipping, St. Helen's Smelting Com- pany ij 205,210 Todd, Hawkins r 255 Todd V. Robinson 117 Tod-Heatty v. Benham 204 Tomkinson, Crozier r. 221 Tone -0. Preston 187 Towers 1). Barrett 295 Tripp -!). Thomas 296 Trower 1). Chad wick 211 Truscott V. Merchant Tailors' Com- pany 192 Turley, Lavery v 28 TurnbuU, Godfrey v 125 Turner v. Ambler 248 XXVI TABLE OP OASES CITED. PAGE Turner «. Eookes Turnley, Bamford f. ... Turpin, Jenks ■». Tyson v. Smith 135 205, 209 34 193 u. Udell V. Atherton Usil V. Hales ... 71, 116, 268 ... 257 Vagliano v. The Bank of England 152 Valentini «. Canali 8 Vandiemens Bank ti. Victoria Bank 148 Vane, Lord, v. Lord Bernard ... 197 Vanghan iJ. Menlove 231 Vaughan, Pemberton ■!); ... ... 31 Vanghan v. TafE Vale Railway Com- pany 275 Vicary, Phesey II 184 Victoria Bank, Vandiemens Bank t. 148 Vigne, Oswell ^ 102 Villers V. Monsley 252 Vilmont, Bentley « 53 Vintners' Company, Solomon ir. ... 188 W. Wade, Tatton 'B 267 Waddell r. Blockey 109 "Waddle, South of Ireland Collieries Company's 39 "Wagner, Lnmley r. ... ■ 26 "Wain «. Warlters 47 "Wainwright ■!). Bland 106 "Waithman ■». "Wakefield 133 "Wakefield, Waithman v 133 "Wakelin v. London and South Western Railway Company . . . 230 Walker ■}). Brewster 206 Walsh, Hampden v 33 Walters. Lock -254 Walter D. Selfe 205 Walter, Wason v 258 Wane, Cumber 1) 28 Ward, Cocking v 41. 42 Ward, Cook t' 252 Ward ■». Loundes 36 Ward, Nobler 27 Ward, Penni' 233 Warlters, Wain V Warrington !). Eurbor Wason 1}. Walter Watt, Oxley v. Waugh V. Weeks Waugh, Wood v Weaver «. Bush Webb «). Bird Webb, Tarrant i) Webber v. Lee Webster, Horsford v Weeks, "Wand v Welch, Bell «. Weldon, Astley ■« Weldon «. Neal Wellesley, De Crespigny r. ... Wells, Doe d. Graves v. Weltje, Rex w. West 1). Blakeway Westmeath, Lord, Hindley r. Weston «). "Wright Wharton ■!). Lewis Wharton r. Naylor Wharton, Ridgway D Wheatcroft v. Hickman White, Ashby v White, Ashlin v White, Bannerman ■!) Whiter. Wilks Whitehead, Bryson v. Whiteley «. Adams Wieler v. Schilizzi Wiggett V. Eox Wilcock, Hardmau v. Wildes, Cook v Wilkinson ». Evans Wilks' Case Wilks, White r Willans v. Taylor Williams, JEx parte Williams v. Clough Williams v. Bailey Williams, Davies r Williams, Harper v Williams v. Lake Williams v. Millingtou Williams, Panton v. ... Williams v. Reynolds Williamson, Curtis t. Willingale v. Maitland Willis, Cochrane r Wilson, Beardman v. Wilson V. Finch-Hatton Windsor, Hart r Wing V. Mill Wiuterbottom r. Earl Derby Winlow, Parker f PAGE ... 47 ... 100 ... 258 ... 201 ... 251 50, 179 ... 229 190, 191 ... 280 ... 42 ... 219 ... 251 ... 96 ... 308 ... 14 ... 252 170, 171 ... 263 ... 26 ... 137 ... 119 ... 129 .. 221 ... 48 ... 124 3 ... 265 ... 69 ... 57 ... 35 ... 254 ... 66 ... 283 ... 110 ... 262 ... 48 ... 251 ... 57 ... 248 ... 305 ... 281 ... 29 202, 287 ... 305 ... 46 ... 120 ... 249 298 120 193 30 162 164 165 25 207 122 114, TABLE OF CASES CITED. XXVll PAGE PAGE Wood V. Braddick . 126 Wright, Polkinghorn v. ... 233 Wood V. Waud 50, 179 Wright, Weston v ... 119 Woodley ^\ Metropolitan District Wyatt V. Harrison ... 179 Eailway Company .. 283 Woodward, Stevens r. .. 278 Woolf, Coombe r .. 98 Y. Wqrlaston v. Stafford .. 218 Wright, Allen B .. 234 Yarmouth ij. France ... 283 Wright, CoUen r .. 121 Young V. Cole ... 70 Wright, Hall t' .. 129 Young V. Grote ... 158 BOOK I. CHAPTER I. r S COMMON LAW. § Common Law consists of — 1. Lex scripta. The statutes of this reahn. 2. Lex non scripta. The principles and usages of private justice, moral fitness, and public convenience, in relation to persons and property, which have time out of mind ' been acknowledged to be binding, by the tacit consent of the civilised community. (i) For instance. It is a principle of the above character that no contract is binding on the party, who has been induced to enter into it by the fraud of the other party. (ii) That a man, who employs another to do an act, is legally himself the doer of that act. (i) It is an usage that real property descends to the eldest son of the deceased. (") That a man should have but one living wife at the same time. § Usage, "^q may consider usage or custom under the heads of — (i) General customs. Those which have grown up in the community at large. Such as the custom which regu- lates the inheritance of land. The custom which recognises as a crime the forging of a man's hand- writing to the prejudice of his right, EUBBIO OP THE COMMON LAW. (ii) Particular or local customs. Those, which have grown up in. particular districts. Such as the custom of gavel kind, which in. many places still regulates the inheritance of lands in the county of Kent. The custom of the City of London that a married woman, who is a trader within its precincts, may sue and be sued, as though she were a feme sole ; or the customs prevailing in different manors. § A PARTICULAR CUSTOM, to be valid, must be one which — 1- Has existed for a period, during which the memory of man nms not to the contrary, (a) 2. Has been uninterrupted and uncontested, so far as the right to exercise it.is concerned. 3. Is reasonable. (6) 4- Is certain and definite, (c) (iii) The custom of merchants (Zigai Mercatoria). Practices, which for better convenience in trading, have grown up in the mercantile community. Such as the ready mode of assigning a debt by the creation of a biU of exchange. Or the convenient process of transferring the property in a cargo by endorsing and handing over a bill of lading. (a) Prom 1189, in which year Richard 1, began to reign. (6) Bryant v. Foot, L. K. 2 Q. B. 161 ; 3 Q. B. 497 (Ex. Ch.). (c) Movmey v. Ismay, 1 H. & C. 729 j 32 L. J. Ex. 94. BIGHT OF ACTION. CHAPTEK II. A RIGHT OF ACTION. § A Right of aotiok ig the right of one who has suffered damage, either legal (d) or actual, to recover by means of an action at law, compensation from another, who has caused such damage by committing either — (1) A breach of contract or (2) A legal wrong; (e) 1. A breach of contract at once gives a cause of action. 2. A tortious or loron/ul act (injuria) is essential to the support of an action other than an action for breach of contract. (See post, Chap. XIV.) § Damage (Damnum) alone, however great, creates no liability. Illustrations. I .. Injuria sine damno — William White and three others, constables of the borough of Aylesbury, refused to receive the vote of Mathias Ashby, an elector of Aylesbury. He brought an action against the constables, and it was held, that, though the man he had voted for had been duly returned, and though he had suffered no actual pecuniary loss, still, as his right to vote had been invaded, he was entitled to maintain an action. (/) 2* Damnum sine injuria — Chasemore owned a miU on the river Wandle, and enjoyed a prescriptive right to the use of the water of the river to turn his mill. Richards dug a well on his {d) See^osf, Chap. XIV. "Torts." (e) Eecognised as such by the law. [See post, Chap. XIV.] (/) Astiby V. WUte, 2 Ld. Kay. 953. B 2 RUBEIO OF THE COMMON LAW. own adjoining land, and intercepted tjie underground water wliich used to percolate through the soil into the Wandle. Chasemore sued Eichards for interfering with his right to have the water for the above-mentioned pur- pose. It was held that no action would lie, as, although no doubt the plaintiff had suffered considerable "damnum" the defendant had not committed any wrongful act {injuria), which the courts could take cognizance of; for the defendant had only acted within his rights, and the plaintiff (seeing that the action of water oozing through the soil is of so uncertain a character) had no rights, which had been infringed, (a) (a) Ckasemore v. Richa/rds, 7 H. L. Ga. 349. FOEMS OF ACTION. CHAPTER III. FOEMS OP ACTION. § Actions are no longer brought in any special form. Once there was a special form of action for each form of complaint ; bnt now, some forms are obsolete, and some have been abolished by Act of Parliament. By 3 & 4 Will, i, c. 27, "An Act for the Umitations of actions relating to real property," a goodly array of curious writs (see sect. 36) was wiped out. Three relating to real property, viz. : the " writ of right of dower," the " writ of right of dower unde nihil habet," and the writ of " quare impedit" which were excepted from the operation of sect. 36, were abohshed by sect. 26 of 23 & 24 Vict. c. 126, " The Common Law Procedure Act, 1860." And the writ of ejectment, which was also excepted by sect. 36, was superseded by the Judicature Act, 1873. § The following classification of actions will nevertheless be useful — {Real, relating to land. Personal, relating to personalty. Mixed, relating to both. Personal Actions. I Ex contractu,. Ex Delicto, I Govmcmt. Debt, Assumpsit. Detmtie. Trover. Trespass, Case. Bepleim. Covenant. An action for the breach of a covenant in a deed. Debt. An action to recover a specific sum of money due, and payable. eubeiOmO^ th,J), oqwon law. Assumpsit. An action founded on a promise. The word " assumpsit," " he promised," being the governing word in the old Norman French form. Detinue. An action for the detention of goods, foimded on a fiction that the plaintiff had bailed the goods, sought to be recovered, to the defendant, who refused to give them up. This action is in form, therefore, one of contract ; though the Court of Appeal has decided that it is founded on tort (Delictum) , so as to give a plaintiff, who has in an action recovered more than £10, his costs under the County Court Act, 1856, 19 & 20 Vict. c. 108 [which in sect. 10 (a) says, that where the plaintiff recovers in an action, founded on contract, a sum, not exceeding £20 ; and in action founded on tort, a sum not exceeding £10, he shall not be entitled to any costs of the suit, unless the judge, who tries the case, certifies that there was a sufficient reason for bringing the action in a superior court.] Illustration. Bryant, a picture dealer, bought a picture, purporting to be painted by Herbert, B,.A. He took it to Herbert to know if it was genuine. Herbert said it was not ; and refused to give it back to Bryant. Bryant brought an action of detinue against Herbert, and recovered £10, the value of the picture, and Is. damages for the detention. The whole sum recovered being therefore over £10 but under £20, if the action was founded on tort the plaintiff would get his costs ; if on contract, he would not. The court decided that it was founded on tort (6). Trover or Conversion. An action to recover the value of goods, of which the owner has been wrongfully deprived, (a) Repealed, but in substance re-enacted by the County Courts Act. 1888 ; 51 & 52 Vict., c. 43, s. 116. (6) Brymt v. Herbert, 3 C. P, D. p. 389. FOEMS OF ACTION. / and which the wrong-doer has " converted " to his own use. It was originally founded on the fiction that the wrong-doer had f mind (trouver, to find), and refused to give up the goods of the rightful owner. Trespass. An action for any direct injury to, or wrongful meddling with, the person or property of another. Case. Formerly, when a special and appropriate form of writ was used for each claim, and a claim arose, which did not come within any of the precedents, a new form of writ was issued, "in consimili cam" by the clerks in Chancery, by virtue of the statute of Westminster 2 c. 24. (c) An action "on the case" lies for damages indiredly consequential on the wrongful act, whereas trespass only hes for directly consequent damages. Replevin. See post, Book III. Part III. Chap. II. (c) 13 Edw. 1. 8 BUBBIO OF THE COMMON LAW. CHAPTEK IV. PARTIES. § Persons who cannot sue — 1. Felons. 2. Alien Enemies. § Persons who cannot be sued — I The Sovereign. 2. Ambassadors of Foreign States. § Persons who cannot either sue or be sued in their own NAMES 1. Persons of unsound mind are incapable of instituting a suit: but the Court will, on application, appoint a committee to act for them. 2. Infants ™ay sue in tort, by their prochein amy, or Tiext friend ; and may by their guardians be sued in tort ; and also for "necessaries," in contract. (a) [Note. A married woman can now by virtue of the Married Women's Property Act, 1882 (45 & 46 Vict. c. 75, s. 1, sub-sect. 2), sue and be sued either in contract or in tort, in all respects as if she were a feme sole.(6) By s. 5 it is enacted that where a woman carries on a trade separate from her husband, she can be made a bankrupt in respect of her separate property."! • (a) A person on axriving at full age cannot ratify a promise made by him during infancy (37 & 38 Vict. c. 62). When the infant has paid for something and consumed it, he cannot recover back the money he has paid {Valmiim v. GcmlA, 24 Q. B. D. 167). (6) But any damages or costs recovered against her in such an action shall be payable only out of her separate estate. PARTIES. 9 § 1. In contracts, no one can me or he sued who is not a party to the contract. If the contract is made with more than one person, as with a firm of partners, all parties to either side of the contract must be joined in stiing, or in being sued, as the case may be. For example : Smith cannot sue Jones alone on a contract made by him with Jones and Brown jointly, or he would be setting up a contract different to the one really existing. [Note. By Eules of Supreme Court, 1883, any person carrying on business in the name of a firm apparently consisting of more than one person may WK be sued in the name of such firm. 0. xvi., rr. 14 and 15.] § 2. In toets, all who have been directly or indirectly injured by the wrongful act may siie, either separately or jointly. If there are joint wrongdoers, they are aU separately liable, (c) § Coeporations are enabled, either by the Charter or the Act of Parliament, calling them into existence, to sue and be sued in their corporate name, on all contracts made with them under seal, [and, by certain Acts of Parhament, on contracts not made under seal, see post. Chap. XII.] which are not " ultra vires" i.e. beyoijd the scope of the purposes for which they were created. § They can also be sued for torts committed by their agents ; and for penalties ; and can sue for torts committed against them.(nent stood for the full amount, the the plaintiff was estopped from denying the correctness of the judgment and execution, and that, Huffer therefore, was unable to recover, (a) 3. It requires no consideration to svpport it. (See post p. 21.) (a) Huffei- V. Allen, L. K, 2 Ex, 15, OONTBAOTS OP EEOORD AND SPECIALTY, 19 II. Contracts by specialty, that is 1. Contracts under seal, which may be by — (i) Deed poll (unilateral), (ii) Indenture {inter partes) , 2- Contracts created by virtue of Acts of Parliament. [As an obligation to pay " calls " on sliares.(6)] § Peculiar attributes of a contract by specialty. 1. " It works a merger" That isj it absorbs, and is substi- tuted for, a simple contract debt, like a contract of record. For instance, Jones' bond (see ante, p. 18, Illustration) may have been given to Smith, to secure a debt ovdng by Jones to Smith for goods supplied ; in which case the simple debt would be " merged " in the higher con- tract, the bond ; and Smith could not sue for the simple debt, but would have to take his remedy on the bond, i its terms were not complied with. 2. It acts as an estoppel ; for where a man has entered into a solemn engagement, by deed under his hand and seal as to certain facts, he is not, in the absence of fraud, permitted to deny any matter to which he has so assented. 3. It requires no consideration to support it, because con- sideration is presumed from the deliberation of the act. 4. It binds t/ie heir and devisee. That is to say, where a man in a bond expressly binds himself and his heirs, the heir, or devisee of his lands, is bound to discharge the specialty debt, to the extent of the assets of which he becomes possessed. (6) Cork amd Bcmdon By. Co. v, Goode, 13 0. B. 826. 2 20 EUBEIO OP THE COMMON LAW. CHAPTER VIII. SIMPLE CONTEACTS. § Simple Contracts are those neither of record, nor under seal. They may either be in writing or by word of month. § Requisites. 1. A simple contract must be certain. That is to say, its terms must have been definitely settled. 2. There must be an assent of loth parties. 3. Privity must exist between the contracting parties. That is, the relation of contractor or contractee must be directly recognised by both of them. For example. There is privity of contract between a lessor and a lessee ; but, if the lessee sub-lets, there is no privity of contract between the original lessor and the under-lessee. -[Note. It has been said that " mutuality " is also essential to a simple contract. If the meaning of this word is that one party to a contract must be bound if the other is bound, it may be observed that there are many contracts of an unilateral character, which can be enforced by one party only ; as a contract between an infant and an adult, which is void as regards the one, but binding on the other. There are, however, numerous contracts, where " mutuahty " is essential ; of which a contract of purchase and sale is an instance ; for it is mutually binding on both sides, and the promise of the one party is the consideration for the promise of the other. ] § A SIMPLE CONTRACT HAS THREE PARTS, in the absence of any one of which it is incomplete. SIMPLE OONTBAOTS. 21 1. The request, on the part of the promisor. 2. The consideration, moving from the promissee. 3. Th£ promise by the promisor. For example. An agreement between Jones and Smith, that if Smith -will refrain from suing Jones' nephew for six months, Jones will destroy a bill of exchange, which he holds, and on which Smith is liable. This contract can be resolved as follows : — Jones — " Will you forbear to sue my nephew for sis months?" Smith—" I wiU." Jones — " Then I will tear up you acceptance." Here we have Jones requesting Smith to forbear to sue. Smith agreeing to do so ; and this forbearance is the consideration ; and finally a promise by Jones to tear up the document. We will now take each of these parts separately, but it wiU be more convenient to take them in a different order. I. The considehation is an act, or an abstention from doing an act, on the part of the promissee, which is of benefit to the promisor, or a detriment to the promissee, however small the benefit, or the detriment. Illustrations — 1. Bolton and Madden were subscribers to a charity, the objects of which were elected by the subscribers. Bolton agreed to give 28 votes to Madden's candidate, if at the following election Madden would give 28 votes for Bolton's candidate. Bolton carried out his part of the contract, but Madden at the next elebtion made default, and Bolton had to subscribe £7 7«. to the charity in order to procure 28 votes. In an action by Bolton to recover the £7 7s., it was held that there was a good consideration for the promise.(a) (as) Bolton v. Madden, L. E. 9, Q. B. 55. 22 EUBEIO OP THE COMMON LAW. 2. The Harrow District Gas Company agreed with the Edgeware Highway Board, that if the Board would allow them to open a certain road, they would make good the surface, and pay the board one shilling per yard of the highway broken up. On the Gas Com- pany refusing to restore the road, or to make the stipulated payment, the Board sued them ; and the Court held that there was a good consideration for the promise made by the Gas Company.(a) § The consideration is either — 1. Executory, that is when the act to be done has not yet been carried out, or 2. Executed, when it has been carried out. II. The promise will not be binding — 1. If there is no consideration ; that is, a bare promise on one side with no counter-balancing advantage. 2. If the consideration was executed before the promise was given. Unless there was a request (see post) by the promisor, previous to the executing of the consideration by the promissee. Illustration. Braithwaite, who was found gnilty of manslaughter, requested Lampleigh to endeavour to obtain the King's pardon for him. Lampleigh occupied many days in the attempt, but unsuccess- fully. Braithwaite afterwards promised to give him £100 ; and not paying, was sued by Lampleigh for the money. It was held, that as there had been a previous request on Braithwaite's part, the promise was binding on him. Whereas, if it had been other- wise, Lampleigh's labour would have been a mere voluntary act of courtesy ; and this, having been past, and done, when the promise was given, would have failed to make the promise binding. (J) (a) Edgeware Highway Board v. Harrow Oas Omivpomy, L. K. 10, Q. B. 92. (6) Lampleigh v. Braithwaite, Hobart, 105. SIMPLE OONTEAOTS. 23 § The promise may be — 1. Express. 2. Implied. And it is implied in all cases, where (i) The consideration is executory, (ii) The consideration is esieeuted, if moved by a previous request, express or implied (see post, p. 24) . For example. If Jones has asked Smith to for- bear to STie, as before, upon Jones tearing up the acceptance, and Smith does forbear to sue, till the six months has elapsed, the law will imply a promise on Jones' part to destroy Smith's acceptance.. Except ». Where the promissee has voluntarily done that, which the promisor was legally compellable to do ; for in such a case there must be an express promise to make a valid contract. For example. Where Jones has asked Smith to pay his, Jones', rates, and Smith has voluntarily done so, the law will not imply a promise on Jones' part to repay Smith. ^. In the case of barristers' and physicians' fees, which are in the nature of an honorarium. § The promise implied will only be co-extensive with the con- sideration executed ; otherwise, for some part of the promise there would be no consideration, and there would be a case of nudum pactum. Illustration. Roscorla, at the instance of Thomas, bought of him a horse, and then sued Thomas for the breach of a warranty that it was free from vice, alleging that there was an implied promise of warranty from the fact of the sale. But it was held that the only promise which could be impUed from the sale was a promise to deliver the horse, and not one of warranty that it was free from vice, (c) (c) Roscorla v. Thomas, 3 Q. B. 234. 24 EUBBIO OF THE COMMON LAW. III. The request is either — 1. Express, or 2. Implied. § It is implied — (i) In aU cases where the consideration is executory. For example. Where Jones agtees to canvass for Smith at the coming election, and Smith promises to give him £10 ; a request from Smith to Jones is implied by law. (ii) It is not impHed, and must be proved, in order that the contract may be valid, where the consideration is executed. Except — 1. Where, from the nature of the contract, it is clear, there must have been a request. For example. Where money is lent, there is an implied request on the borrower's part, to the lender, to make the advance. 2. Where the promisor has adopted, and enjoyed the benefit of the consideration. For example. Where Jones has bought goods of Eobinson, on Smith's account, but without Smith's knowledge or authority, and Smith has afterwards agreed to keep, and pay for, and has kept them ; the law will, to support Smith's promise, imply a request, by Smith to Robinson, to sell the goods. 3. Where the promissee has been compelled to do what the promisor was legally com- pellable to do. Illustration. Partridge was a coachbuilder, and Exall, at his request, bailed his car- riage to him for safe custody. Par- tridge's landlord distrained on the car- SIMPLE OONTBAOTS. 25 riage for rent, which Exall paid. It was held that he could recover from Partridge the sum so paid, as money paid at Partridge's request, (a) 4. Where the promissee has voluntarily done that which the promisor was legally com- pellable to do, and the promisor has after- wards in consideration thereof, expressly promised. Illustration. Wing, an apothecary, at- tended a pauper, whom the parish of Silk Willoughby (of which MiU was an overseer), was bound to support. MiU, after the pauper's death, told Wing to make out his bill to the parish, and that it should be paid. The Court held that MiU's promise amounted to an acknow- ledgement that Wing had attended the pauper at the request of the parish.(6) (a) Exall V. Partridge, 8 T. E. 308. (6) Wimg v. MiU, 1 B. and Aid. 104. 26 BUBBIO OP THE COMMON LAW. CHAPTEK IX. OF THE DISCHARGE OF CONTRACTS, I. (JoNTRACTS UNDER SEAL Can be discharged — 1. Before breach by another instnunent nnder seal only. Illustration. One Hicks took a lease from John West of certain premises, and thereby covenanted to yield up at the expiration of his term all erections and improvements on the demised premises. During the term he erected a greenhouse, which at the end of his term was, removed. In an action by the executors of John West against Blakeway, to whom Hicks had assigned the lease, for a breach of the covenant, a letter was put in from John West, written before the greenhouse was erected, giving Hicks leave to remove it at the expiry of the term. It was held that the license in writing was no dis- charge of the defendant's liability under the covenant in the indenture of lease.(a) After breach. — (i) By another instrument under seal, (ii) By accord and satisfaction (see post, p. 27). Provided unliquidated damages only are sought to be recovered. Illustration. Eden let a house to Price, who covenanted to repair. Price assigned to Blake. In an action against Blake by Eden (a) West V. Blakeway, 3 Sc. N. E. 199. But a Court of Equity would grant an injunction to restrain the breacli of an agreement, [Lvmley v, Wagner, 5 De G. & Sm. 485] so that a written agreement not to enforce a specialty contract would, since the Judicature Act, 1873, be maintainable iti a Court of Law. Ot THE DISOHARQE Of OONTEACTS. 27 for not repairing, a defence was raised of an agreement with Eden by which the defendant was discharged from his liability. It was held that this would have been no answer to a claim for a sum certain, as mider a bond ; but that it was a good answer to a claim for damages, which were of an uncertain amount, not depending on the terms of the covenant. (&) II. Simple contracts can be discharged — 1. Before breach — (i) By a subsequent parole agreement. [Note. A contract which is bound to be in writing under the Statue of Frauds (see post, Chap. XIII.), can, it is conceived, be put an end to simpliciter by word of mouth ;(c) though this has never been expressly decided. It can be rescinded by the substitution of another valid contract in writing, (c)] (ii) By being merged in a subsequent contract under 2. After breach — (i) By a release under seal. (ii) By "accord and satisfaction": that is, where something is given, or done, to or for, the one party by the other party, and agreed to by the former, as satisfying the cause of action. Illustration. Turley took a pubhchouse, called " The Edinboro' Castle," from Lavery, a wine merchant, and paid him £100 on account of the stock and fixtures. Lavery afterwards supplied him with wine, and brought an action (6) BlaMs case, 6 Coke's Kep. 43 6. (c) Goss V. LorA Nugent, 5 B. & Ad. 65 ; Stead v. Dawher, 10 Ad. &E. 65 ; Noble V. Ward, L. R. 2 Ex. 135. 28 BUBElO OP THE COMMON LAW. for the price of it. Tnrley set up in answer an agreement with Lavery to surrender the public- house, and be repaid the £100, and exonerated from all charge for the wine. It was held that this agreement was a good accord and satisfaction, (a) [Note. A smaller sum paid, without further considera- tion, is no satisfaction for a claim for a larger one.(6) But in everything but a money payment, the value of the thing given in satisfaction is not materiaL J (a) LoAiery v. Tnrley, 30 L. J. Ex. 49. (6) Foakes v. Beer, 9 App. Cas. 605, following Gwmber v. Warn, 1 Str. 426. HOW A CONTRACT IS VITIATED. 29 CHAPTER X. HOW A CONTRACT IS VITIATED. I. Fraud. A contract induced by fraud is not void, but is voidable at the option of the party defrauded. He may elect to treat it as void, or not, as he likes. And he must make his election as soon as he discovers the fraud. Illustration. Selway agreed with Fogg to cart away a quantity of rubbish for £15. He afterwards sued Fogg for £20, as the price of the labour done, alleging that Fogg had fraudulently misrepresented the quantity of rubbish to be removed, and thereby induced him to do the job for £15. It was held that he might have repudiated the contract, and sued in an action of deceit, but as he had elected to sue on the contract, he could only recover the £15.(c) [See also post, Book II. Chap. III. and Book III. Part VI. Chap. II.] II. Duress. A contract made under improper pressure is void. Illustration. James Bailey, whose son had forged his father's name to a number of promissory notes, and had got them cashed at the bank of Williams, Bros., agreed with the bank to mortgage his property to them to secure the amount of the notes, in considera- tion of the bank forbearing to prosecute. It was held that he was not a free and voluntary agent, and that the contract was void, {d) III. Mistake, A contract based upon a misapprehension of facts (c) Selway v. Fogg, 5 M. & W. 86. {d) Williams v. BaAley, L. R. 1 H. L. 200. 30 EUBEIO OP THE COMMON LAW. by both parties is void ; and money paid under a mistake of facts can be recovered back.(a) Illustration. Joseph Willis was tenant for life of an estate, and died on September 24, 1863, insolvent. On October 28, 1863, Cochrane, Joseph's assignee, who was intending to cut and reahze the timber on the estate, and Daniel Willis, the tenant in tail, who was anxious to save the timber, both being ignorant of Joseph's death, agreed that Cochrane should have the same right to the timber, as if he had actually cut it on August 15, 1863. Daniel would obviously not have signed such an agreement had he known of Joseph's death ; as, on that event happening, he became en- titled to, and the assignee lost his claim upon, the timber. It was held that the agreement was founded on a mistake, and without consideration, and therefore void.(&) IV. An immoral consideration avoids a contract ; as, where a bond or promissory note is given to a woman in order to induce her to live in a state of concubinage. Illustration. Pearce & Co. were coachbuilders, and sued a prostitute for hire of a brougham. They had sup- plied it with the knowledge that it would be used by her as part of her display to attract men. The Court held that Pearce & Co. could not recover, (e) V. Contracts opposed to public policy are void. Examples. 1. A contract by a father to abstain from seeing or exercising any control over his children. 2. A contract of maintenance; that is, to furnish money to be risked on the event of a law suit by one who has no interest in the litigation, (d) (a) But not when the mistake is one of lam. (6) Cochrane v. VFilUs, L. R. 1 Ch. 58. (c) Pewrce v. Brooks, L. R. 1 Ex. 213. (d) Earris v. Brisco, 17 Q. B. D. 504 (C. A.) ; Bradlaugh v. Newdigate, HQ.B.D. 1. HOW A CONTRACT IS VITIATED. 31 <^- A contract of champerty ; that is, to furnish money for the maintenance of an action on the terms of sharing the proceeds if snccessfTil.(e) 4. A contract in general restraint of trade. [Note. But, if it is only to abstain from exercising a trade in a particular locality, it is good ; but it must be within reasonable limits. Illustrations. («•) Gosnell and Price were hairdressers in London. They dissolved partnership, and Gosnell bought out Price, and Price covenanted with him not to carry on a similar business in London or Westminster, or within 600 miles of the same under a penalty of £5,000. In an action by GosneU's executor against Price for breach of the agreement, it was held that the covenant was valid as far as it related to London and Westminster, but void as regarded the further limit of 600 miles, as being in restraint of trade.(/) (P-) Vaughan gave up a shop, premises, and goodwill, and a receipt for making ginger beer to Pemberton- for £7 10s. 0^., and agreed not to open a shop in the same line of business within a mile, under a penalty of £20. Vaughan did open a ginger beer shop within the pre- scribed limit, and Pemberton brought an action for the penalty. The Court held that the agreement was not in restraint of trade. (^) ] VI. Illegality of consideration. Where the contract is to do something in contravention of an Act of parliament, or of the common law, it is void. Examples. 1. A vendor of game, not having taken out a game-dealer's license under 1 & 2 Will. 4, c. 32, can- not sue for the price of the game sold. 2- Nor can one, who sells coals by measure instead of by weight, as ordered by 5 & 6 WiU. 4, c. 63, s. 9. (e) Hutley v. Hutley, L. E. 8 Q. B. 112. ~ (/) Price V. Green, 16 M. & W. 346. ig) Pemberton v. Vcmghcm, 16 L. J. Q. B. 161. 32 RUBBIO OP THE COMMON LAW. 3. Nor can a pubKcan who sells beer on credit on the premises, (a) 4. Nor can one who sells goods (other than milk, mac- kerel and bread under certain restrictions) in the way of his trade on the Lord's day.(6) 5. Contracts hy way of gaming are void. No action can be bronght by the winner to recover either the bet from the loser, or money deposited in the hands of a third party to abide the event on which a wager is made.(c) [NoTB. The employment of an agent to make a bet in his own name on behalf of his principal may imply an authority to pay the bet if lost ; and on the making of the bet that authority may become irrevocable, so that the agent may recover the amount of the bet so paid from his principal. (. Or, the breach of a duty.(&) II. Damage. That is — 1. Either actual pecuniary damage, 2. Or legal, that is, implied damage. [The damage which the law imputes, as the result of every infringement of a right.] Hence an action can be maintained for the infringe- ment of a right (except in certain cases of slander, see post, Book III. Part V. Chap. Y.), without proof of actual damage, and for a breach of a duty, only when actual damage is proved. § Meeb damage, however great, wiU not support an action where there has been — 1, Neither the infringement of a right, (c) 2. Nor the breach of a duty. Illustration. The Commissioners of Sewers of the levels (a) See the chapter on Rights of Action, ante, p. 3. (6) See EeoAien v. Pender, 11 Q. B. D. 503 (0. A.) ; 52 L. J. Q. B. 702. (c) Chasemore v. Richards, 7 H. L. Cas. 349 ; Wood v. Waiigh, 3 Ex. 748 ; 18 L. J. 305. OP TORTS GENERALLY. / 51 of Pagham, in Sussex, erected certain groynes to pro- tect the levels from the inroads of the sea. These groynes caused the sea to flow with greater violence against, and so to injure, the adjoining lands of King. King sued the Commissioners for compensation ; but the court held that they had committed no wrongful act ; as every man has a right to protect his own, and there is no duty cast upon him to protect his neigh- hour's land from the common enemy. (f^) § ToKTS FOUNDED ON CONTRACT are where a contract imposes a diity, and there has been a breach of that duty. For example. Where Jones receives goods from Smith to carry them for hire, there is a contract between Jones and Smith that the former will carry the goods safely ; and also a duty imposed upon him to carry them with care. If therefore he loses the goods on the road he may be sued, at the option of Smith, either for a breach of the contract, or for negligence in the performance of his duty.(e) 1. WJiere tlie wrongful act amounts to a felony, the remedy by action was said to be suspended until pubhc justice was satisfied by the prosecution of the offender, it is extremely doubtful, however, whether this doctrine holds good at the present time.(/) 2. If it only amounts to a misdemeanor, the party aggrieved may sue immediately. (^) {d) Rex V. The Paghami Level Commissioners, 8 B. & C. 360. («) Under the present system of pleading, the distinction between an action for breach of contract and for a tort is still necessary to be observed as affecting the question of costs. See Pontifex v. Midland Railway Company, 3 Q. B. D. 23 ; County Courts Act, 1888 (51 & 52 Vict. c. 43, s. 116). (/) See Appleby v. Franklin, 17 Q. B. D. 93; Ex parte Ball, 10 Ch. D. 667; Midland Insitrance Company v. Smith, 6 Q. B. D. 561. (g) Reg. v. Hardey, 14 Q. B. 541, £ 2 BOOK II. OF PARTICULAR CONTRACTS CHAPTER I. CONTRACTS FOR THE SALE OF GOODS. § The title to goods rests prima facie on possession. The posses- sion of goods makes a good title against everyone but the true owner. 1. Where tlie sale is in market overt. [That is, in a shop in the city of London, and at any market elsewhere, estab- Kshed either by charter or prescription.] The purchaser obtains a good title against all the world. Except. Where the goods have been stolen or obtained by false pretences(a) and the thief has been convicted, upon the happening of which the property revests in the true owner. (6). [Note. Where a thief sells during the interval between the act of theft and his conviction, the purchaser, if he sells the goods to another, before the conviction of the thief, is not liable to the true owner. Illustration. Smith purchased in Smithfield Market eighteen sheep of a salesman named Parrott. They had come into Parrott's possession through one Bateman, who had stolen them from Horwood. Horwood gave (a) Bentley v. Vilmont, 12 App. Cas. 471, overruling Moyce v. Newington, 4 Q. B. D. 32. (5) 24 & 25 Vict. c. 96, ». \W. " The Larceny Act." 54 EtJBEIO OF THE COMMON LAW. notice to Smith of the theft, and demanded the sheep. But Smith refused to give them up, and subsequently sold them. After this resale Horwood prosecuted Bateman, who was convicted. Horwood then sued Smith in trover for the sheep, and it was held that he could not recover, (a) ] 2. Where the sale is elsewhere than in the market overt. (i) If the vendor has stolen the goods, the vendee obtains no title, (ii) If the vendor has become possessed of the goods wrongfully, the vendee gets no title. Illustration. Bayes bought a horse at Rea's horse- repository, in Southwark. The horse had been stolen while at grass in the Essex Marshes from Lee. Lee brought trover against Bayes for the horse ; and it was held that, Rea's reposi- tory was not market overt, and that Lee was entitled to recover the horse from Bayes. (6) § Sale of goods by factoes undek " The Factors' Acts.'"(c) (d) {e) 1. Agents for sale, to whom goods are entrusted or consigned, can make a valid transfer of the same, even in fraud of their principals. Provided — (i) The vendee has no notice that such agent has no authority to sell.(/) (ii) The transaction is in the ordinary way of busi- ness.(^) (a) Horwood v. Smith, 2 T. K. 750. (6) Lee v. Bayes, 18 C. B. 599. (c) 6 Geo. 4, c. 94, s. 2. (d) 5 & 6 Vict. 0. 39, ps. 1, 3. (e) 40 & 41 Vict., c. 39, ss. 3, 4. (/) Eevooation of agency without notice will not prejudice third parties (40 & 41 Vict. c. 39, s. 2). ((/) 6 Geo. 4, c. 94, s. 4, OONTRAOTS I'OE fHEi SALE 0]? GOODS. 55 2. Agents for sale, entrusted with, and having in their possession, documents of title to goods, can make a valid transfer of the same, even in fraud of their principals. Provided the vendee has no notice that the agent is not the real owner. (/*) 3. Agents for sale, entrusted with the possession of goods, or the documents of title to goods, can make a valid contract oi pledge in fraud of their principals. Provided that the pledgee has no notice that the agent had no authority to pledge, [i) 4. (i) .4 nnidor who retains, as against his vendee, possession of documents of title to the goods which have been sold by him ; or, (ii) ^4 vendee who has obtained possession of such documents, as against his vendor, can make a valid transfer or pledge of the same to a third party. Provided such second vendee, or the pledgee, has no notice of — (i) The previous sale ; or (ii) The vendor's lien.(A) I. An unconditional sale is the transfer, for a price in money, of the right of property in specific chattels, and of the attendant risk. § It is essential In an unconditional sale — 1. That the specific goods be ascertained, 2. That the price be fixed. When these two matters are determined, the goods become the property of the vendee, and the loss is his, if they perish. Illustration. Baxter, on January 4th, 1825, agreed to sell Tarling a stack of hay for £145, the hay to be left standing till the following May. It was so left in Qi) 9 Geo. 4, c. 94, s. 2. (i) 5 & 6 Vict. 0. 39, ss. 1, 3. Qc) 40 & 41 Vict, 0. 39, 8S, 3, 4. 56 EUBEIO 01* THE COMMON LAW. Baxter's possession, and was burnt. The court held, that the property in the hay had passed to Tarhng, and the loss was his. (a) II. A CONDITIONAL SALE is the inchoate transfer for a price in money of the right of property in specific chattels, dependent on — 1. The doing of some act by the vendor, which is to put the goods into a deliverable state. For e.rampL'. Where Smith agrees to buy of Jones a set of chairs for £15, on condition that Jones first re-covers them, or 2. The weighing or measuring of goods by the vendor, upon the accomplishing of which the price will depend. Jllustration. Hart, Logan & Co. sold to Le Mesurier, Routh & Co. a raft of red pine timber, measuring 50,000 feet, more or less, then lying in the Ottawa river. It was to be paid for before delivery, at the rate of 9^rf. per foot measured off. An allowance was to be made one way or the other, according as, when measured, it was found to consist of more or less than 50,000 feet, and it was to be delivered at Quebec. As soon as the timber arrived it was broken up by a storm, and a great part of it lost before it was mea- sured. Le Mesurier & Co., having paid the price under the contract, sued to recover the same ; and it was held that they were entitled to do so, as the pro- perty in the timber had not passed to them before it was lost, the transfer of the title being conditional on the final measuring of the timber, which never took place, (6) or 3. The doing of some act by the vendee which is to be a con- dition precedent to his acquiring a right of property in the goods. (rt) TarUnrj v. Baxter, 6 B. & C. 360. (b) Logan v. Le Mesurier, 6 Moore P. C. 116. CONTEACtS i-OE THfi SALE OF GOODS. 57 Illustration. Alston bought certain sheep on the terms that he should drive them home and depasture them for a certain time, and that the vendor during that time should pay him so much a week for their pasture. If Alston should then pay him the price of the sheep he was to have them. The vendor, before the agreed period expired, sold the sheep to Mires. Alston sold them to Marwood. In an action by Mires in trover for the sheep, it was held, that the property in the sheep had never passed to Alston, and that Mires had a good title to the sheep, (c) § In these cases neither the right of property nor the risk pass to the vendee until the completion of the condition on which the transfer depends. § An agreement fob a sale. There can be no sale, but only an agreement for a sale, when the goods are not speci- fically set apart. For example. Where Willcs agreed with Shuttleworth & Co., to sell them twenty tons of oil out of the stock in his cisterns, it was held that there was no sale.(d) § But as soon as the specific goods have been selected, and appropriated, and the selection and appropriation assented to by both parties, the sale becomes complete, and the goods are at the vendees' risk. Illustration. Rohde & Co., agreed to sell Thwaites twenty hogsheads of sugar out of a quantity in bulk. Four hogsheads were filled, and delivered ; sixteen more were then filled up, and put aside for Thwaites, and notice was given to him to take them away, which he agreed to do. It was held in an action by Rohde & Co. against Thwaites for not taking the remainder, that the sale had been com- (c) Mires v. Soleba/y, 2 Mod. Rep. 243. (d) White V. JVilks, 5 Taunt. 176. 6S HtJBRIO OF fHE COMMON LAW. pleted, and that the property had passed to the defen- dant, (a) § The appropriation may be — 1. The act of the vendee; as when he makes the selection, and removes them. 2. The act of the vendor, which will be the first active step he takes with reference to the goods in favour of the vendee, after he has selected them. Illustration. Aldridge agreed with Knight to purchase 100 quarters of barley at £2 3s. Qd. per quarter, out of the bulk in Knight's granary ; Aldridge to send sacks, and Knight to fill and despatch them. Aldridge accordingly sent to Knight 200 sacks, each of which would contain half a quarter of barley. Knight filled 155 of them, and applied to the rail- way for trucks for carrying them. The railway did not supply the trucks, and Knight emptied out the 155 sacks into the bulk of barley in his granary, and filed his petition in bankruptcy'five days after. Aldridge sued Knight's assignees for the barley, and it was held, that the property had passed in the barley which had been filled into the 155 sacks, but not in any which had not been put into the remain- ing sacks. (&) § The property in the goods, though they may be appropriated and despatched, may still be retained by the vendor. 1. Either by express reservation, 2. Or by conduct showing an intention to make such a reservation. Illustration. Josse sold a quantity of coal, part of a heap in his yard, to Pope, for cash, to be shipped on board a vessel, chartered by Pope in liis own name and (a) Rohde v. Thwaites, 6 B. & C. 388. (6) Aldridge v. Jolmson, 26 L. J. Q. B. 296. OONTEACTS FOfe THE SALE OE GOODS. 69 on his own behalf to carry to London. Pope, before the coal was separated from the bulk, sold it to Moakes. Josse shipped the coal, and took three bills of lading, maldng it deliverable to Pope's order. Only one of the bills of lading was stamped, and this Josse kept ; sending on the second with the invoice to Pope, Josse, being unable to get the price out of Pope, sent the stamped bill to Nicholson, his agent, who got posses- sion of the coal. Moakes sued Nicholson in trover for the coal, and it was held that Moakes had no better title than Pope, his vendor ; and that no title had passed to Pope from Josse, as the retention of the stamped bill of lading, was a clear indication of his intention to reserve his right of property in the coal.(c) § Delivery. In the absence of any agreement to the contrary, the vendor will have done all that is required of him, when he has placed the goods at the disposal of the vendee. § He must deliver neither more nor less than what has been purchased. Illustration. Mills ordered a dozen of wine of Hart. Four dozen were sent. It was held that Mills was entitled to send them all back, {d) § The vendee has a eight of immediate possession. l.If the goods are sold for cash, on tender of the price. § Lien. Until tender of the price has been made, the un- paid vendor has a right of lien over the goods ; that is, he may retain possession of them against the price. [Note. A right of lien gives the unpaid vendor no right to sell, j 2. If on credit, as soon as the bargain is struck, without (c) Moakes v. Nicholson, 34 L. J. C, P. 273- {d) Hart v. Milh, 15 M, & W. 85. 60 EUfiElO OF THE COMMON l/AW. reference to payment. The vendor's right of Ikn being waived. Defeasible by the vendee becoming insolvent before he gets possession, when the vendor's right of lien revives, and is exercised by — (}) The vendor's refusal to part with the goods if they are still in his possession. Illustration. Sanders & Co. sold eight pockets of hops to Saxby at £7 15s. Od. The hops were not paid for. After a portion of them had been delivered, Saxby became bankrupt. In an action in trover for the remainder of the hops by Saxby's assignees, it was held, that Saxby's right of posses- sion to the undelivered portion of the hops was rescinded by his becoming insolvent, (a) (ii) The vendor countermanding the delivery order, if the goods are in the hands of his bailee. Provided The goods have not been resold, nor the sub-purchaser attorned to by the bailee. Illustration. Messrs. Smith & Co., by their agent, Alexander, warehoused certain sugars with Messrs. Little & Co., at Greenock. Smith & Co. sold the sugar to Bowie & Co., and gave them a deHvery order on Alexander. Bowie & Co. sold to Messrs. McEwan & Sons, who produced to Alexander's clerk the original delivery order, and received in exchange a slip vfith these words : — " Delivered to the order of Messrs. McEwan & Sons, this date, 42 hogs- heads of sugar ex St. Mary. Jas. Alexander per J. Adams." In the meantime Smith & Co., finding Bowie & Co. insolvent, ordered Alexander not to deliver the sugar, and he re- (a) Bloxain \. Sanders, 4 B. & C 941. CONTRACTS FOB THE SALE OP GOODS. 61 moved it to another warehouse. In an action by McEwan & Sons for the sugar, the House of Lords held, that Alexander not being in possession of the goods had no authority to deal with them ; and, as Messrs. Little had never attorned to the Plaintiffs, Smith & Co. retained their lien. (&) (iii) § The vendor countermanding the delivery order, when the goods are in the hands of his carrier ; upon which the goods revest in the vendor. § The right to eoimter-order the delivery in such a case is called " the right of stoppage ?n transitu," § The transitus lasts until the whole of the goods come into the actual possession of the vendee, or of his agent for deposit. Illustration. Crawshay & Co., delivered 348 bars of iron to Eades, a barge-owner, to carry to Hornblower at Stourbridge. Eades landed a part of the iron at Hornblower's wharf, and then, hearing he had absconded, delivered no more, and reshipped what had been landed. He then sold a portion of the iron to repay himself a debt due from Hornblower, and delivered the residue to Hornblower's assig- . nees. In an action by Crawshay & Co. against Eades for converting the iron, it was held that they were entitled to recover, for the right to stop in transitu continued until delivery was completed, and the property in the iron had not passed to Hornblower, biit remained in Crawshay & Co.(c) (6) McEwan v. Smith, 2 H. L. C. 309. (c) Crawshay v. Eades, 1 B. & C. 181. 62 RUBRIC OP THE COMMON LAW. CHAPTER II. FRAUDULENT SALES OF CHATTELS. § Fraudulent sales of Chattels. § All sales of goods and chattels, made with the intention of hindering, delaying, or defrauding creditors, are fraudulent and void, as against the creditors, (a) § The question of fraud, or no fraud, is for the jury. § Chattels are frequently conveyed and mortgaged by bill of sale, and are left in the possession of the assignor. In conse- quence of which the latter obtains a fictitious credit, through being held out to the world, as owning what really belongs to another. The legislature, with the view of securing notoriety to all transfers of chattels, where the vendee does not at once remove his purchases, has passed the Bills of Sale Acts — 41 & 42 Vict. c. 31 (Bills of Sale Act, 1878). 45 & 46 Vict. c. 43 (Bills of Sale Act (1878) Amend- ment Act, 1882). § A BILL OF SALE Under these Acts of Parhament is void as against trustees in bankruptcy and execution creditors. In cases where the chattels conveyed remain for more than seven days after the execution of the bill of sale in the possession, or apparent possession, of the assignor. (6) Illustration. Coundon, a seafaring man, had some fur- niture at No. 5, Nelson Street, Sunderland. He gave Robinson a bill of sale over it to secure an advance of £250, and went to sea. His wife then removed the , (/(.,-, (o) 13 Eliz. c. 5 ; 2J Eliz. c. 5. 7 ■ ^ (6) 45 & 46 Vict. c. 43, s. 8. FRAUDULENT SALES OE CHATTELS. 63 furniture to two rooms in No 12, Ward Street, and went to live with her daughter-in-law. Coundon re- turned in two years time, and joined his wife at the daughter-in-law's. Eobinson demanded the furniture, and Coundon directed his wife to deliver to him the keys of No. 12, Ward Street. This was done, and Robinson locked up the house, but did not remove the furniture. Next day the sheriff put in an execu- tion on a judgment obtained against Coundon, and seized the furniture. The bill of sale was not regis- tered. It was held that the bill of sale did not require registration, as Coundon not being a de facto occupier of No. 12, Ward Street, the goods were not in his apparent possession, (c) Unless — (i) Within seven days of such execution there be regis- ■ tered in the Queen's Bench Division (rf) — 1. A true copy of the bill of sale, with its schedules and inventories annexed. 2. An affidavit declaring — (a.) The time of the execution of the bill of sale. (p.) Its due execution and attestation. (y.) A description of the residence, and occu- pation of the assignor, and the attesting witness, (e) (ii) A bill of sale must be re-registered every five years.(/) (iii) A bill of sale for under £30 is void.(^) (c) Robinson v. Briggs, L. E. 6, Ex. 1. (d) 41 & 42 Vict. c. 31, s. 13. (e) 41 & 42 Vict. c. 31, s. 10. (/) 41&42 Vict. c. 31,s. 11. {g) 45 & 46 Vict. c. 43, s. 12, 64 BUBRTO OP THE COMMON LAW. CHAPTEE III. OF A SALE OF GOODS WITH A WAREANTY, ON A CONDITION PRECEDENT, AND BY FRAUDU- LENT REPRESENTATIONS. 1. A WARRANTY is a Collateral promise appended to a contract of sale, either — (i) Expressly, or (ii) Impliedly. § Failure of the warranty does not entitle the vendee to treat the sale as void, to return the thing bought, and demand back the price paid. He must keep his purchase, and bring his action for damages on the warranty. Foi- instance. If Jones sells Smith a horse, and warrants him sound, and the horse turns out to be spavined, the sale of the horse is a good sale. It is the collateral promise that he is sound which has been broken. Smith therefore cannot return the horse ; his remedy is on the warranty. 1. An express warranty is an assertion, in terms, of a fact, of which the purchaser is ignoraiit ; and is confined to that fact. Illustration. Gupp sold Dickenson a horse, and gave him a receipt in the following terms : " Received £100 for a bay gelding got by ' Cheshire Cheese ' ; warranted sound." This was held to be an express warranty as to his soundness only ; and not as to his parent- age, (a) 2. An iMrLlED warranty is a promise, which, from the nature (a) Dickenson v. Gupip, c^uoted in Budd v. Fainnaner, 8 Bing. 48, SALE OF GOODS WITH A WAEBANTT. 65 of the transaction, the law imputes to the vendor, at the time of the contract for sale, (i) There is an implied warranty that the goods are the vendor's, when he sells as owner. Illustration. Eichholz went to the warehouse of Bannister, a "job-warehouseman," in Manchester, and bought and paid for certain pieces of print, which Bannister said were a job lot, just received by him. After the goods were delivered, it turned out they had been stolen, and had to be given up to the owner. In an action by Eichholz to recover the price, it was held that there had been an implied warranty of title, on the sale by Bannister, who by his conduct must be taken to have affirmed that the goods were his. (6) § But when he sells in any particular capacity, other than oivner, [for instance, as sheriff, pawnbroker, or agent] he only warrants that lie does not know of any defect in his authority to sell. Illustration. One, Foley, hired a harp of Messrs. Chappell, and pledged it with Attenborough. The latter in due course sold the harp at auc- tion, as an unredeemed pledge to Morley. Subsequently Chappell claimed and took the harp from Morley, who sued Attenborough for breach of warranty of title. It was held that aU that Attenborough had undertaken was, that the harp was an irredeemable pledge, and that he was not cognizant of any defect of title in it.(c) (ii) There is an implied warraMy, when the vendor gives a description of goods, and the vendee is not in a position (6) Eichhola v. Bannister, 34 L. J. 0. P. 105. (c) M liabilities of the surety. 1. The surety is discharged, if loithout his consent. (i) The original contract is materially altered, or a new contract is substituted for it. Illustration. Harrison agreed with Smurthwaite to purchase of him an unfinished ship called the (a) Bell V. Welch, 9 C. B. 154. (6) Mozley v. Tinkler, IC. M. & R. 692. OF CONTEAOTS OF INDEMNITY. 97 " Devonport," for the price of £14,750, and an old ship of Harrison's to be taken in exchange called the " Lord Dalhonsie " ; and also, that Smurthwaite should finish the " Devonport " within two weeks of her arriving in London, and repair the " Lord Dalhonsie," and procure her to be classed A 1 at Lloyds for eight years, Harrison advancing the sinn of £6,000 to Smurthwaite on mortgage of the " Lord Dalhousie." Seymour gave Harrison his bond as surety to Smurthwaite, conditioned to be void, if Smurthwaite repaired the " Lord Dalhousie " forthwith, and finished the " Devonport " within the two weeks in the fashion agreed upon. Afterwards Harrison and Smurthwaite made another agreement, without the knowledge of Seymour, whereby the time for the completion of the " Devonport " was shortened, and additional work was to be done to her. In an action by Harrison against Seymour on the bond, Smurthwaite ha-s'ing made default, it was held, that, as far as concerned the " Lord Dal- housie," the defendant was Kable ; but as the contract in respect of the " Devonport " had been materially altered behind his back, he was absolved as to that part of his Kability.((?) (ii) The creditor by a binding contract enlarges the time for payment by the principal. J llusl ration, (a.) The Croydon Gas Company con- tracted with Dickinson to supply him with ammo- niacal liquor, payment to be made monthly, and within the first fourteen days of each month. Pollard & Child were sureties for Dickinson that he would pay what from time to time became due {(■) fjarrismi v, f^eymoiir, L. R. I C, P, 518, 98 EUBEIO OP THE COMMON LAW. to the gas company. After the first fourteen days of August, 1875, the company took a pro- missory note from Dickinson for the amount due for July. Dickinson made default in payment of the amounts due for July, August, and September. In an action by the company against the sureties, it was held that, as they had given Dickinson further credit by taking his promissory note for the amount due in July, the sxireties were absolved as to that payment, though not as to those due in August and September, (a) (/S.) Coombe & Delafield were brewers, and supphed one Joseph with porter, on a guarantie from Woolf. On December 1, 1829, there was £45 due from Joseph. Coombe & Delafield applied for payment in June and August, 1830, and, failing to get paid, they, in October, took Joseph's promissory note for the amount, at two months. In November, Joseph became bankrupt, and Coombe and Dela- field sued Woolf on the guarantie. It was held that as they had disabled themselves from suing Joseph immediately, by taking his note at two months, time had been given him by a binding contract, and the surety was discharged, (i) 2. The surety may, when his promise is not made under seal, at any time after notice to that effect, revoke his promise, and discharge his oion liability in futuro. Illustration. Davies & Son guaranteed the payment by Davies & Co., of Newtown, of all bills Offord should discount for Davies & Co., of Newtown, for the space of twelve months. Before the end of the twelve months, Davies & Co. revoked their guarantie by (a) Groydmi Gas Company v. BicMnson, 2 C. P. D, 46. {h) Goomhe v. Woolf, 8 Bing. 156, OF OONTBAOTS OF INDEMNITt. 99 notice. In an action by Offord on the guarantie for non-payment by Davies & Co., of Newtown, of bills discounted by him after the date of the notice, it was held that the revocation was good, and that he was not entitled to recover, (c) 3. As soon as the principal has made default, the surety may step in, pay the debt, and sue the principal in the creditor's name. Illustration. WiLLlAMS, J., says, in Strong v. Foster, " What I understand by a giving of time is this. The surety has a right at any moment to go to the creditor and say, ' I have reason to suspect the principal debtor to be insolvent, therefore / shall call upon you to sue him, or permit me to sue him.' If the creditor has voluntarily placed himself in such a position as to be compelled to say he cannot sue him, he thereby dis- charges the surety. "(dJ) 4. It is the surety's duty to see that the principal fulfils his engagements ; and there is no obligation of active diligence against the principal on the creditor's part. Illustration. Goring, in April, 1825, sold certain timber to Edmonds, junior, on a guarantie being given by Edmonds, senior, that the son would pay. Goring received part payment from the son, and made re- peated unsuccessful applications to him for the residue till December, 1827, when the son became bankrupt. Goring never disclosed the result of these applications to the father, but sued him on the guarantie. It was held that Edmonds, senior, was not discharged by the time that had elapsed, nor by want of notice of the failure to obtain payment from the son. {e) i). If the principal has made default, tJie creditor may, by a (c) Offord V. Demies, 31 L. J. .P. 319 ; GouUhart v, Olementson, 5 Q, B, D, 42, (d) Strong v. Foster, 17 C. B. 219. (e) Goring v. Edmonds, 6 Bing. 94. 32 100 EUBEIC OF THE COMMON LAW. binding contract, give him time and reserve all remedies against the surety. Illustration. William Brown, as principal, and George Hopps, as surety, entered into a bond with the " York City and County Banking Company," to secure Brown's banking account. Subsequently the bank covenanted by a deed poll not to sue Brown, reserving their rights against Hopps. In an action by the bank against the executors of Hopps, it was held, that the effect- of this deed was to allow the surety to retain all his rights against the principal debtor ; and that the covenant not to sue only operated so far as the rights of the surety were not affected, and as his position therefore was unaltered, he was not discharged. (a) 6. The surety/ may sue the principal for money paid on his guarantie. There being an implied promise, on the prin- cipaVs part, to repay the surety anything he has been com- pelled to pay thereunder, (b) 7. A co-surety can, if he pays more than his share, recover the amount over-paid, from the other co-sureties, (c) 8. The surety, who has paid on a guarantie, is entitled to have assigned to him any securities the creditor may hold of the principals ; and to stand in every way in the creditor's shoes, with reference to the principal. ((?) II. Contracts of Insuiiance. § A CONTKACT OF INSUEANCE is where one agrees to indemnify another in respect of the loss, to which property of the latter may be exposed, in consideration of a sum of money paid, as the price of the risk run. (a) Price v. BarJcer, 4 E. & B. 760. (6) Warrington v. Furhor, 8 East, 242. (c) Kemp V. Finden, 12 M. & W. 421. (d) 19 & 20 Vict. c. 97, s. 5. OP CONTEAOTS OF INDEMNITY 2'/^e insured or assured is the party indemnifiBdMto'Tri^^J*' The insurer, assurer, or underwriter [because he'slfescfibes his name at the foot of the contract] is the party who gives the indemnity. The policy of insurance is the contract of indemnity itself. Tlie premium is the sum paid as the consideration. I. A MABINE POLICY is taken hy the owners of ships for the insur- ance of a sliip, or freight to be carried ; and by owners of cargoes for the insurance of goods, or of expected profits on the sale of goods ; against the perils of the sea, men-of-war, fire, enemies, pirates, letters of mark and countermark, takings at sea, arrests, restraints of princes and peoples, barratry \_barratai'e, to cheat ; any fraud by which the ship owner is injured] of the master, or the mariners. \_NegUgen(x' of the captain, or the crew, is a peril of the sea.] 1. ^4 voyage policy is where the risk is guaranteed for the voyage of the ship from port to port. 2. A time policy is where the risk is guaranteed for a particular period of time, (i) A valued policy is where the amount of the loss guaranteed is specified in the contract, (ii) ^4?/ open 'policy is where the loss guaranteed is not expressed in the policy, but is left to be calculated on the happening of the loss. § A VALID POLICV MtST 1. Specify — (i) The particular risk.(e) (ii) The names of the underwriters, (e) (iii) The sum insured, (e) ( iv) The name of, or the name of the firm of, («•) One of the parties interested in the policy, or (/3.) The consignor, or the consignee of the goods insured, or (e) 30 Vict. c. 23, d. 7. lO^ EtJBEtO OF THE COMMON tAW. (y.) The broker negotiating the insurance, or (5.) The parties directing the broker to negotiate the insurance, (a) ■1. Not be made for any period exceeding twelve months. (Z>) '6. Be duly stamped, (c) 4. Be entered into, only, by one, who has an interest in the subject-matter of the insurance [otherwise it is void, as a contract by way of gaming or wagering]. (tf) [Note 1. A person has an interest, who may be in- jured by the risks to which the subject-matter of the policy is exposed, (e) ] [Note 2. Tlie underwriter may himself re-insure the ship, or goods, which he has guaranteed. (/)] 5. The vessel must be in existence at the time the insurance is effected ; unless the policy is expressly stated to be made " lost or not lost." § A POLICY MAY BE ASSIGNED by endorsement ; and the assignees may sue thereon in their own names. (^) § There is ks implied waebanty by the insured, in a policy of insurance on a ship. 1. That the ship is, at the commencement of the voyage, " seaworthy," and properly equipped and manned, (i) In the case of a voyage policy, but (ii) In the case of a time policy, there is no such icar- ranty. [For it is usually effected when the ship is at sea, and the owner has no knowledge of its condition.] (7t) 2. That he will do nothing himself to enhance the risk.(2) (a) 28 Geo. 3, c. 56, s. 1. (6) 30 Vict. c. 23, s. 8. (c) IKd., s, 9. {d) 19 Geo. 2, c. 37, s. 1. (e) Lucena v. Crauford, 2 B. & P. 301. (/) 27 &28 Vict. c. 56, s. 1. (3) 31 & 32 Vict. c. 86, ss. 1 and 2. (/i) Smale v. Gibson, 4 H. L. Ca. 353. (i) Osivell V. Vigne, 15 East, 70. OF CONTEACTS OF INDEMNITY. 103 3. That the vessel will proceed without delay, and without deviation, to her destination. (A) § The undeewriter will be liable— 1. For an actual total loss — (i) Of cargo ; when it is annihilated, or has been permanently taken from the control and benefit of the insured. (ii) Of freight ; when it cannot be earned, through loss of the voyage by the peril insured against. (iii ) Of the ship ; when it is annihilated, or permanently removed from the insurer's control and benefit (as in the case of capture by the enemy). 2. For a constructive total loss. When the ship, or cargo, have been so damaged by the perils insured against, that it would cost more to repair the ship, or to carry the goods to their destination, than the ship or goods are respectively worth. JYotice of abandonment must be given to the under- writers, within a reasonable time ; if a claim is made for a constructive total loss. For they are entitled to do what they can with the ship, or cargo, so abandoned, for their own benefit. 3. For a partial loss, when damage is done to a portion of the ship, or cargo, by the perils insured against. . [Note. Partial loss, or a partial loss of under a certain amount per cent., unless it is general average loss, or the ship is stranded, is frequently excepted from the policy.] 4. For general average, the amount of contribution made — (i) To recoup the owner of goods — (a. ) Which have been jettisoned, or thrown over- board for the safety of the ship and cargo, during the perils insured against, {k) Hammoiid v. Keid, 4 B. & Aid. 72. 104 EUBEIC OP THE COMMON LAW. ((5. J Which have been sold by the master to de- fray the expense of refitting the ship, when damaged by the perils insured against ; by the respective owners of the cargo, and the ship and freight, which have been preserved through the sacrifice of what has been jetti- soned. ( iij Towards the expenses of salvage. O'ii) Towards the ship's expenses when forced to put into port, in consequence of the perils insured against. 5. For particular average, partial loss of goods, through the perils insured against, sustained by individual owners. [Note. This is frequently excepted from the poHcy.] 11. A FIRE POLICY is an undertaking in consideration of a premium, to indemnify the insured against damage to his property by fire during a limited period. [Note. A number of stringent conditions are usually attached to the policy, relating to the subject-matter insured, to any alterations which may be made therein, to the nature of the risk, to the conditions of the claim in case of damage, its adjustment, &c., &c., all of which will be strictly construed.] § The insured must have an interest in the property guaranteed in the policy, otherwise the policy will be void. (a) § A FIRE POLICY IS NOT ASSIGNABLE, being a chose in action, at common law, so as to enable an assignee to sue in his own name thereon. (6) [Note. But by virtue of the Judicature Act, 1873,(c) it would be assignable, provided — (i) The assignment is in writing, and (ii) Express notice in writing is given to the insurers. J (a) 14 Geo. 3, c. 48. (6) Lynch v. Dahell, 4 Bro. P. Ca. 431. (c) 36 & 37 Vict, c. 66, s. 25, subs. 6. OF CONTRACTS Oi? INt)EMNltY. 105 § There is an implied promise bv the insured not to alter the structure of the premises insured, so as to increase the risk, when the insurance has heen effected upon a parti- cular description of the building. (- A right to his coimnission accrues as soon as the agent has concluded a contract on behalf of his principal with a third party. [r] Stephens v. Badcock, 3 B. & Ad. 354. Id) Taylor v. Stray, 2 C. B. N. S. 175. (e) CrossTcey v. Milh, U. M. & R. 298. (/) Mm-jjiii/ V. O'Sheo., 2 J. & L, 422 ; JVaddell v, Bhclcey, 4 Q. B. D, 678, 110 EUBEIO Of THE COMMON LAW. *'• Factors, brokers, and solicitors, have a right of lien on the property of their principals, which is in their hands, for their general balance. 7. If the agent exceeds his authority, he does so at his peril. 7 llust ral inn . Fitzgerald authorized Ban-on and Stewart to effect an insurance on his life, either in his own or in their own aiames, to secure a debt due from him to them. Barron and Stewart effected the policy in the names of themselves and Smith their partner. They from time to time paid the premia ; and eventually sued Fitzgerald for the amoimt so paid by them. It was held that they were not entitled to recover, as the insurance was not made according to the authority given, (a) •'^. An agent cannot dispute his principal's title to the property he is entrusted to deal with, unless it has been obtained by fraud on the part of the principal. JHn.Mration. Hardmaii employed Willcock, an auc- tioneer, to sell certain goods for him. Before sale, Willcock received notice from other parties that the goods had been fraudulently obtained by Hardman. Willcock sold the goods, and rendered an account to Hardman, but refused to pay over the proceeds of the sale to him. Hardman sued him for the amount of such proceeds, and it was held that, though an agent is not entitled to set up the jus tertii in an action brought against them by his principal, stiU, as Willcock had notice that the goods had been obtained by fraud, he was right, in this case, to retain the money as against Hardman. (6) ^ Of- the RtGHT.S AND LIABIIATIKX OF PRINCIPALS ON CONTRACTS MADE By A(4KN"I'S. (a) Bairon v. Fitzgerald, 6 Bing. N. 0. 201, (6) Hardman v, Willcock, 9 Bing. 382, CONTBACTS MADE WITH AND BY AGENTS. Ill I. A8 TO CONTRAG'l'S UNDER SEAL — 1. The agent must be appointed by deed. 2. The covenants must be entered into by and with the principal ; and the deed executed as and for the principal by his agent, lawfully appointed. Other- wise the principal can neither sue nor be sued on the deed. llUistration. James Simmonds, for and on behalf of W. F. Berkeley, but not appointed his agent under seal, let a farm by indenture of lease to Hardy. Simmonds executed the lease in his own name simply ; and the covenants were made by and with Berkeley. In an action by Berkeley on the deed, it was held that as the covenants were made with one party, and the lease was executed by another, he could not maintain his action, (c) 3. If the contract is made, and the covenants are entered into in the agent's own name simply, he is liable to be sued thereon himself, and must sue, if an action is to be brought, as trustee for the principal. J:- An agent, duly appointed under a power of attorney, may execute a deed on his principal's behalf. (i) By signing his principal's name simply, (ii) By signing his own name, and expressing it to be for his principal, (iii) By signing his principal's name, and expressing it to be done through him, the agent, {per pvo.) II. As TO CONTBACTS NOT UNDER SEAL. 1. Fiiylits of the princijiaL (i) If the agent has contracted in his own name on behalf of an undisclosed principal, the latter may come forward and claim the benefit of the contract. (c) Berkeley v. Hardy, 5 B. & C, 355. 1]2 BUB BIO OP THE OOMMON LAW. 3 . The contract is executory. 2. The agent has not expressly described him- self in a written contract as being the prin- cipal.(a) [See below.] ;-i. The inducement to the third party to enter into the contract was not based on the special character or credit of the agent. I Unst ration. Hunter entered into a charter- party with a shipowner, who described himself therein as " C. J. Humble, Esq., owner of the good ship, or vessel, called ' The Anne.' " C. J. Humble was, un- known to Hunter, acting as agent for his mother, Grace Humble ; and in an action by her on the charter-party, parol evidence was admitted at the trial, to show that the son was acting on her behalf. The Court held that this evi- dence was not admissible, because it contradicted the description given of C. J. Humble in the written document, and also because the third party has a right to the benefit he contemplates from the character, credit, and substance of the party with whom he contracts, (a) 4. The principal is bound by all the equities which the third party would have against the agent. Tllustration. George, a clothier at Frome, employed Rich and Heapy in London, factors in woollen goods, as his del credere agents. Olaggett & Co. bought a quantity {a) Huwhk V, Flmitir, 11 L. J. Q. B. 350. CONTEACTS MADE WITH AND BY AGENTS. 113 of woollen cloths of Rich and Heapy, part of which were cloth goods of George's ; but the whole quantity was taken out of a mass in Rich and Heapy's warehouse. Shortly afterwards Rich and Heapy be- came bankriipts, and George, coming for- ward as their principal, sued Claggett & Co. for the price of their cloth. It was held that Claggett & Co. were entitled to set off against George's claim the amount of an acceptance of Rich and Heapy's in Claggett & Co.'s hands, which would have been available against Rich and Heapy in a claim made by them. (6) (ii) If an agent contracts with a third party, without the principal's authority, the principal (if exist- ing at the time of the making of the contract) may, when the facts come to his knowledge, either repudiate or adopt the contract. Illustration. Wright held two promissory notes, a cheque, and an acceptance of Marks. Wright endorsed them to Ancona, and instructed a firm of solicitors to sue on them in Ancona's name. Ancona knew nothing of these pro- ceedings until after action brought, when he adopted and ratified them. It was held that the action was properly brought in Ancona's name.(c) 2. Liabilities of the principal. (i) Where an agent contracts, as principal, with a third • party, the latter on discovering the existence of the hitherto undisclosed principal, may elect to hold liable either the principal or the agent. (6) George v. Claggett, 7 T. R 359. (c) Ancona v. Marks, 31 L, J. Ex. 163. I 114 RUBRIC OP THE COMMON LAW. Illustration. Curtis' and Harvey sold some gun- powder to one Boulton. Boulton became insol- vent, and Curtis and Harvey then discovered he had bought as agent for Williamson & Co. They filed an affidavit of proof against Boulton's estate, and brought an action against Williamson & Co. It was held that they were entitled to make their election as to whether they should look to the agent or the principal, and that fihng an affidavit of proof was not such a step as to show a final election to look to Boulton. (a) (ii) The same rule appHes when the agent contracts as agent, but does not disclose his principal's name. Illustration. McKune bought of Davenport certain glass and earthenware, under an order from Thom- son, but did not mention Thomson's name at the time of the purchase. Davenport debited McKune, but before the credit expired the latter became bankrupt, and subsequently on Thomson's refusing to pay for the goods, sued the latter for the price. It was held that he was entitled to recover. (6) ( 11) I Where the agent has contracted, as agent, and credit has been given to him, with the full knowledge that he was only acting for a disclosed principal, the prin- cipal is not liable to the third party. Illustration. Larazabal & Co. sent for certain goods of Addison's to their office. Gandasequi, a Spanish merchant, there selected some of the goods, and made stipulations as to the price and other matters. Addison debited Larazabal & Co., the brokers, in his books and invoices, and the brokers credited him with the amount of the purchase-money, and (a) GvAiis v. Williamson, L. R. 10 Q. B. 57. I a) Thomson v. Davenport, 9 B, & C. 78. CONTEACTS MADE WiTH AND BT AGENTS. 115 debited Gandasequi with the same, and charged a commission. Larazabal & Co. became bankrupt. In an action by Addison against Gandasequi for the price, it was held that the plaintiff could not now elect to hold the principal liable, as he had made his election once, at a time when he knew who the priiicipal was, to give credit to the agent, (c) ( iv) Where an agent has, without authority, entered into a contract with a third party on behalf of his principal ; and the latter has subsequently, either expressly or by his acts, adopted the contract, he is liable to the third party. Illustration. One Ebsworth, a broker, bought a quan- tity of wool of McClean for Dunn and Watkin, without their authority. They subsequently assented to the contract ; but later on refused to accept and pay for the wool. In an action by McClean against Dunn and Watkin, it was held that they were bound by their subsequent assent to their broker's con- tract, {d) (v) Parol evidence (which, as a rule, cannot be given to contradict a written document), may be adduced to enable an undisclosed principal to sue ; and also to charge him on a contract made on his behalf by his agent. [ It may be given to charge a new party, but not to discharge an apparent party, j IUustration.(a. ) Higgins & Son sold, under a written contract, 1000 tons of iron to John Senior & Co., iron merchants and iron commission agents. It was sought by the defendants in an action by (c) Addison v. Gandasequi, 4 Taunt. 573. {d) McClean v, Dunn, 1 M, & P, 761. I 3 IIG EUBRIC 01? THE COMMON LAW, Higgins & Son on the contract against Senior & Co. to give parol evidence to show that the defen- dants had only contracted as agents for one Mead; but the court held that it would not be admissible to discharge the defendants. (a) (|3- ) Humfrey sold through his brokers, Thomas and Moore, ten tons of linseed oil to Dale, Morgan & Co., brokers for one Schenk, on a icritten con- tract in which Dale & Co. professed to be acting as agents " for their principals." Schenk became insolvent and did not accept the oil, and Humfrey & Co. sued Dale & Co. as on a sale of the oil to them. Evidence of a custom in the trade, that, when a broker purchased without disclosing the name of his principal, he was liable to be looked to as purchaser, was held to have been rightly admitted at the trial, for the purpose of charging the brokers. (&) (vl) The principal will not be responsible on a contract induced by the fraud of his agent, unless he autho- rizes it or retains the benefit of it,(c) 3. The authority given by the principal to the agent may be, (i) Express (a.) By writing. (/3.) By parol (construed if ambiguous by the custom of the trade). § An express authority includes an implied authority to do all acts necessary to the effecting of the purpose for which that authority is given. llluslratlon. Howard saw at a riding school a horse of Steward's. It was warranted sound by Steward's brother, David, a horse-dealer, who had brought the (a) Higgins v. Senior, 8 M. & W. 844. (6) Humfrey v. Dale, 7 E. & B. 266. (c) British Mutual Banldng Go. v. Gharnioood Forest Railway Co., 18 Q.B.D. V1.4 (0. A.) ; Udell v. Atherton, 30 L. J. Ex, 337, CONTBAOTS MADE WITH AND BY AGENTS. Il7 horse by Steward's instructions to the riding school for Howard's inspection, in order to negotiate a sale. Whereupon Howard bought the horse for £315. David had express orders not to give a warranty of the horse, but this fact was not imparted to Howard. On the horse turning out unsound, Howard sold it, and sued Steward for the loss on the resale. It was held that David had an ostensible authority to do that which was usual in the conduct of the business of a horse-dealer, that this included the giving of a warranty, and that the plaintiff was entitled to recover, {d) (ii) Implied By the previous course of dealing between the parties. § The extent of the authority is measured by the extent of the agent's usual employment. (a.) Where one accredits another by employing him repeatedly in any particular course of dealing, he is bound by the acts of that other, done in the seeming course of that employment. Illustration. Kobinson was a shopkeeper at Duf- field, in Yorkshire. He employed one Womack, who lived in London, to order goods for him of Todd & Co., wholesale linendealers in London. Six parcels were so ordered and paid for by Eobinson. Subsequently Womack fraudulently ordered more goods without authority, of which he got possession and absconded. Todd & Co. sued Eobinson for the price of these goods, and it was held that the plaintiff could only look to the appearances held out to them by the defendants, and that they were entitled to recover, (e) {(l) Howard v. Steicard, L. E. 2 C. P. 148. (a) Todd V. Robinson, E. & M. 219. 118 bUBRiO Oi* THE COMMON LAW. (li, ) Where one, by his conduct, holds out another as having a general authority to act for him, he is bound by the acts of that other, riotwithstanding any private instructions to the contrary. Illustration. Jones was a wholesale straw-hat maker at Luton, and had a branch business in Milk Street, E.G., carried on under the name of " Bushell & Co." Jones had agreed with one Bushell that Bushell should act as his manager in Milk Street. He opened an account at the London and County Bank in the name of Bushell & Co., and gave Bushell an authority to draw cheques in the name of Bushell & Co., but no authority to accept bills. In July, 1864, Bushell accepted a bill in the name of the firm, payable at the bank. The bill was paid at maturity by Jones, but Jones forbade his accepting bills in future. Subsequently Bushell accepted three other bills in the same way, which were also paid at maturity ; and, in con- sequence of this irregularity Jones dismissed him. After this, Bushell negotiated another bill, accepted by the firm, with one Taylor, who discounted it with the London and County Bank. In an action by the Bank on this bill against Jones, it was held that he could not by a secret reservation divest Bushell of the authority to draw and accept bills with which he had clothed him by holding him out as a principal in the firm of Bushell & Co.(a) (?■) Where the authority of the agent is notoriously limited, the principal will not be liable on a contract made by him in excess of such authority, (a) Edmunds v Bushell, L. R. 1 Q. B. 97. CONTBACTS MADE WITH AND BY AGENTS. 119 Illustration. Ewing authorizeLl a firm of in- surance brokers at Liverpool to underwrite policies for him up to the amount of £100 on each vessel. There was a well-known custom at Liverpool, that there is, in all cases, a limit of some sort imposed on brokers by their principals. The brokers underwrote a policy for Baines, in excess of their autho- rity, for £150. Baines did not know of, and did not enquire, as to limit. It was held in an action by Baines against Ewing on the policy that the defendant was not Hable.(Z') (S. ) In certain cases an agent has bi/ custom an implied authority to do certain acts on behalf of his principal. For example. The master of a ship has an implied authority to bind the owners for the necessary repairs of the ship, (c) And to pledge their credit for things abso- lutely necessary for the due prosecution of the voyage. (^) A stockbroker has an implied authority from his client to deal in accordance with the custom of the Stock Exchange. (e) Of the eights and liabilities of an agent on contracts made by him with third parties. I. Rights of tlie agent. 1. When the principal is "disclosed" the agent cannot sue on the contract, unless he himself, either has an interest in, or is personally bound by, the contract. Illustration. Williams, an auctioneer, was employed (b) Baines v. Ewing, L. E. 1 Ex. 320, (c) JVeston v. Wright, 7 M. & W. 390. (d) Robinson v. Lyall, 7 Price, 592. (e) Grissell v. Bristowe, L. E. 3 C. P. 112. 120 RtJBEiC Ol<' TBfi COMMOif LAW. by one Crown to sell goods by auction on Crown's premises. Millington bought certain goods, and removed, but did not pay for them. In an action by WilHams against him for the price of the goods, it was held, that he had a possession, coupled with an interest in the goods, in respect of his right of lien for his charges, which entitled him to sue in respect of the price, (a) 2. Where the principal is " undisclosed " the agent may sue on the contract, unless the principal comes forward. Illustration. Schmaltz & Co. entered into a charter- party with Avery, a shipowner, describing them- selves as " agents of the freighter." In an action by them on the charter-party, it was held, that they were entitled to prove that they were their own freighters, and their own principals ; and that they were entitled to recover in their own names.(6) II. Liabilities oftJw Agent. 1. Where an agent contracts as principal with a third party, the latter, on discovering the existence of the hitherto undisclosed or unnamed principal, may elect to hold liable either the principal or the agent, (c) 2. Where an agent contracts as agent, and there is no principal in existence at the time of the maldng of the contract, he is himself hable as principal. Illustration. Baxter, Calisher and Dales, who were getting up a company to estabhsh an hotel at Gravesend, purchased, and used, the stock of wines of Kelner " on behalf of the Gravesend Royal Hotel Company." About a month after- (a) Williams v. Millington, 1 H. Bl. 81. (6) Schmaltz v. Avery, 16 Q. B. 655. (o) Gurtis V. Williomison, L. K 10 Q. B. 57. CONTEAClS MADK WIT^ AND ST AGENTS. 121 wards the company was incorporated, and shortly collapsed. In an action by Kelner for the price of the wines against Baxter, Calisher and Dales, personally, the defendants contended that they were only acting as agents for the company, and were not personally liable ; but the Court held, that the plaintiff was entitled to recover. (d) i. Where an agent has contracted as agent for an existing principal, who has, however, given the agent no authority, the agent is not liable on the contract. But he is liable on an implied jjromise that he had the authority which he professed to have. Illustration. Wright, believing he had authority from one Dunn-Gardener, agreed to grant a lease of a farm of Dunn- Gardener's in Cambridgeshire to Collen. Dunn-Gardener refused to execute a lease, and Collen sought specific performance against him, and on proof of the absence of due authority in Wright, was unsuccessful. Collen then sued the executors of Wright (who had died in the meantime) for representing that he had such authority, whereas he had none ; and it was held, that Collen was entitled to maintain an action for the breach of an implied promise to that effect, (e) i. Where an agent signs a written contract in his own name without qualification, whether the principal be disclosed or not, he is liable. Illustration. G. W. Winlow signed a charter-party in his own name. In the body of the docu- ment he was described as " agent for E. W. Winlow & Sons, of Devonport, merchants." In an action by the shipowner on the charter-party, {d) Kelner v. Baxter, L. R. 2 C. P. 174. (e) GolUn v. Wright, 7 E. & B. 301. 122 UttBBIC OF THE COMMON LAW; G. W. Winlow was held to have pledged his personal Uability, and that the words, "agents for, &c.," were mere words of description. (a) Unless there are plain words in the body of the contract to show that he is contracting on behah' of a disclosed principal, and that he does not intend to be personally liable. Illustration. Bowditch, a broker, signed, and sent to Southwell & Co., a note of a contract in the following terms : " I have this day sold by your order, and for your account, to my prin- cipals, five tons of anthracene. W. A. Bow- ditch." In an action by Southwell & Co., for the price of the goods against the broker, it was held, that he was not personally liable on the above contract. (&) [Note. Parol evidence cannot be given to dis- charge the agent from liability, by shewing that he was only acting as agent, when he has neglected to declare the agency in the docu- ment, (c) I .5. When from the circumstances of the case the fact of agency is notorious, the agent will not be personally liable. Illustration. Bridge was a solicitor, having conduct for the defendant, of the cause of House v. Leaky, at Taunton Assizes. He served a subpoena on one Thomas Robins, amongst other witnesses, to attend, and give evidence, on behalf of the de- fendant. Subsequently, on the death of Robins, his executrix sued Bridge for his expenses of attendance, and the court held, that the solicitor, (a) Parker v. Winlow, 7 E. & B. 942. (6) Southioell V. Bowditch, 1 C. P. D. 374. (c) Higciina v. Senior, 8 M. & W. 844. CONTRACTS Made wiTd ANt) ii AGliiJTs. 123 being known merely as the defendant's agent, there was no implied contract on his part to pay the witnesses. ((Z) 6. The receipt by the agent is the receipt by the principal ; and an agent cannot be sued for money paid to him, for which he is accountable to his principal. Illustration. Bamford bought certain premises of one Stott, at auction. The memorandum of the sale was signed, and the deposit was received by Shuttleworth, the vendor's solicitor, as agent for Stott. The sale having subsequently gone off, Bamford sued Shuttleworth for the deposit ; but it was held, that there was no privity between the plaintiff and defendant, and that Stott only was liable to refund the money. («) 7. If money is paid by a principal to his agent, for a third party, the agent is only responsible to his principal ; and he is not liable to the third party, unless he has consented to hold it for the third party. I llustration. Hill and Warren sold a quantity of wool to Kershaw, at Rochdale, who gave them his acceptance for £738 lis. &d., at four months, in payment. On the day before the bill became due, Kershaw paid the amount required to meet the bill into his bankers, Clement Royds & Co., who ordered their agents in London, the London and Westminster Bank, to pay the bill on presentation. Kershaw died on the following day, insolvent, and largely indebted to the bank. The bank by tele- graph countermanded their order to the London and Westminster Bank, and refused to cash the bill, claiming to keep the money in their hands against their own debt. Hill and Warren, in {d) Robins v. Bridge, 3 M. & W. 118. (e) Bamford V. BhiMUxoorth, 11 Ad. & E. 926. 124 ECJBfilO OI' THE COMMON LAW. consequence, who were the drawers of the bill, had to pay it, and filed a Bill in Equity against the bank, to make good the amount. It was held that (though Kershaw's representatives had a remedy), there being no privity between Hill and Warren and the bank, they were not entitled to maintain the suit, (a) Partnbeship. § Partners [whether active or dormant] are the accredited agents of each other. (5) § Each has an implied authority to bind the other 1. By all simple contracts entered into in the usual course of the business of the firm. ■1. By negotiable instruments circulated on behalf of the firm. (b) [Note. One partner cannot bind another by deed [except a deed of release(c)], unless expressly authorized by deed to do so,(d) and see a?ife as to agents, pp. 107, lll.j § The rights and liabilities, therefore, of partners against, and to, third parties is governed by the law relating to principals and agents. § Partnership is where two or more persons, standing to each other in the relation of principals, agree to combine pro- perty, skill, or labour for the purpose of a common under- taking, and the acquisition of a common profit. § A partnership consisting of more than twenty members [and in the case of banking firms, of more than ten members] must be registered under the Companies Act, 1862. {a) Hill V. Royds, L. R. 8 Equity, 290. (6) Wheatcrofi v. Hickman, 8 H. L. U. 268. (c) Bailey v Lloyd, 7 Mod. 250. (d) Harrison v. Jackson, 7 T. K. 207. CONTRACTS MADE WITH AND BY AGENTS. 125 L III CSS — 1. It is formed in pursuance of some other Act. 2. It is formed in pursuance of letters patent. 3. It is engaged in working mines within, and sub- ject to the jurisdiction of the Stannaries.(e) The liabilities incident ti;) i-artnership are excluded [unless some further facts are shown] by " The Law of Partner- ship Act, 1865," (/) from attaching in the following cases : 1 . Where one lends money to another for trading purposes, upon a written contract, that the lender shall receive — (i) Interest varying with the profits, or (ii) A share in the profits. 2. Where a servant or agent of a trader is remunerated by a share in the profits of the trade. 3. Where the widow or child of the deceased partner of a trader receives by way of annuity a portion of the profits of such trader's business, ■i- Where one has sold the goodwill of his business, and continues to receive a portion of the profits of such business as the price. The liabilities lncidbnt to a partnership cease — 1. In the case of an ostensible partner, (i) By dissolving the partnership ; (ii) Removing his name from the firm ; and (iii) Giving notice of the dissolution (a.) To the public by notice in the " Gazette ;"(^) (/3.) To those who have dealt with the firm, by special notice. (A) 2. In tlie rase of a donnant partner. (i) By dissolving the partnership ; and (e) 25 & 26 Vict. c. 89, s. 4. (/) 28 & 29 Vict. c. 86. {g) Godfrey v. Tmnbull, 1 Esp. 371. (h) Graham v. Hope, Peake, 208. 126 EDBEIC OF THE COMMON LAW. (ii) By giving special notice to any persons who have dealt with the firm with the knowledge that a secret partnership existed, (a) Upon allconteacts subsequent to the date of the dissolution OF PARTNERSHIP, (h) (a) Fairer v. Deflinne, 1 C. & K. 580. (J) Wood V. BraddicJc, 1 Taunt. X04, CONTRACTS IN RELATION TO MARRIAGE. 127 CHAPTER VIII. CONTRACTS IN RELATION TO MARRIAGE. § Contracts in unreasonable restraint of marriage are void, as being contrary to public policy. For example. If Miss Jones were, in consideration of an annuity paid by Mr. Smith, to covenant with him that she would never marry anyone but Mr. Robinson, such a contract would be void. But if she were to covenant that so long as the annuity were paid she would not marry Mr. Brown, such a contract would not be illegal. [Note. A condition in restraint of the second marriage, whether of a man or a woman, is void.(c)] § Marriage brokerage contracts are void, as being contrary to public policy. Illustration. The Dulce of Hamilton, being anxious to marry the Lady Gerard, was induced by her guardian to promise to give a release, within two days after the marriage, of all accounts of the mesne profits of an estate belonging to the young lady. The marriage took place, and on the appKcation of the husband, the Court of Chancery set the agreement aside as void.(«^) § A fraudulent representation by a third party made to bring about a marriage will estop him from disputing, or denying the truth of, such representation after the mar- riage has taken place. Illustration. Moses Montefiori, in order to promote his brother Joseph's marriage, gave him a note for a large sum of money as balance of an account between them, (c) Allm V. Jackson, 1 Oh. D. 399 (C.A.). {d) Hamilton v, Mohun, 1 Salk. 158. 128 EUBRIC OP THE COMMON LAW. though really there was no such balance existing at all. The marriage was carried out, and Moses then demanded back the note, as having been given without considera^ tion ; but it was held that he could not take advantage of his own fraud, and that Joseph, though in collusion with him, was entitled to the note. (a) § A PROMISE IN CONSIDERATION OF MARRIAGE must he in tvriting (see ante, p. 41). [Note. The performance of the ceremony is no such " part performance " as to satisfy the Statute of Frauds. Illustration. In 1852, the E.ev. R. B. Caton, a widower, aged 80, proposed to Mrs. Henley, a widow, aged 60. A verbal agreement was made between them that the husband should have the wife's property for life, paying her £80 per annum pin-money, and that she should have it after his death. It was afterwards agreed that there should be no settlement executed, but that the husband should make a will leaving the wife all her property. The marriage took place, and the husband made his wiU accordingly. On his death a different will was found. Mrs. Caton filed a bill against the executors, praying for a declaration in accordance with this promise, and for an account. It was held, that there being no contract in writing to that effect, she must fail, as marriage was not a part performance within the meaning of the Statute of Frauds. (6) ] § Of A PROMISE TO MARRY BETWEEN PRINCIPALS. 1. It need not be in writing Unless the marriage cannot take place within a year.(e) 2. It must be, to marry within a reasonable time ; other- wise it becomes a contract in unreasonable restraint of marriage, and therefore void. (a) Montefiori v. Montefiori, 1 W. Bl. 363. (6) Gaton v. Caton, L. K. 1 Cli. 137. (c) 29. Car. 2, c. 3, s. 4. CONTEAOTS IN RELATION TO MAERIAGB. 129 3. The plaintiff, in an action for breach of promise of marriage, must be corroborated by some material evidence, other than his or her own word.(ti) 4. A woman may break off her engagement if the man has conducted himself in a brutal or violent manner, (e) 5. A man may break off his engagement, if subsequently to his promise he discovers that the woman was, at the time of the promise, of loose character. (/) 6. Bodily disease, rendering it dangerous or impossible for the defendant to perform the functions of matrimony, is no answer to an action for breach of promise. (^) 7. If either party has been induced to enter into a contract of marriage by a fraudulent representation, to which the other is privy, the contract is voidable. (Ji) § Husband and wife. The Married Women's Property Act, 1882,(?') which came into operation on the 1st January, 1883, made such a complete change in the status of the wife with regard to her contracts and rights over her property, that the doctrines of the common law, affecting the property of women on marriage, have been almost entirely abrogated. With the exception of property acquired before the 1st January, 1883, the right of the husband to the property of the wife during coverture has been aboKshed, and the fact of the marriage no longer effects any alteration in a womans' rights to, or power over, her property. By the Married Women's Property Act, 1882, the old common law doctrine of merger of the wife in the husband is abolished. The wife can acquire, hold, and dispose, by will or other- wise, of any real or personal property as her separate pro- {d) 32 & 33 Vict. c. 68, s. 2. (e) Leeds v. Cooh, 4 Esp. 254. (/) Foulkes V. Selway, 3 Esp. 236. (g) Hall V. Wright, E. B. & E. 746. (h) Wharton v. Levm, 1 0. & P. 529 (i) 45 & 46 Vict. c. 75. See Appendix. K 130 EUBEIO OF THE COMMON LAW. perty, in the same manner as if she were a fetw sole, without the intervention of a trustee. (a) 2. The wife can enter into and render herself liable in respect of, and to the extent of her separate property on, any contract. She can sue and be sued in respect of such contract as if she were a, feme sole, and her husband need not be joined with her as plaintiff or defendant.(&) 3. Where the wife enters into a contract, such contract shall be deemed to be entered into by her with respect to, and to bind her separate property unless the contrary be shown, (c) 4. Where the wife enters into a contract which binds her separate property, it shall bind not only the separate property which she is possessed of or entitled to at the date of the contract, but also any separate property which she may hereafter acquire, (c?) [Note. A wife married after the 31st December, 1882, is entitled to hold as her separate property all real and personal property which belonged to her at the time of her marriage or is acquired subsequently, including any wages or earnings acquired by her in any employ- ment, trade, or occupation carried on by her separately from her husband, (e) 1 (a) 45 & 46. Vict. c. 75, s. 1, sub-sect, 1. (5) Sect. 1, sub-sect. 2. (c) Sect. 1 (3). In an action brought against a married woman to recover the price of goods sold and delivered, the onus is on the plaintiff to show that the defendant had separate property at the time she made the contract : Palliser V. Gurney, 19 Q. B. D. 519 ; see Leak v. Driffield, 24 Q. B. D: 98. (d) Sect. 1 (4). (e) Sect. 2. Where the marriage took place and the title of the wife accrued before the 1st January, 1883, the husband is entitled to her choses in action, provided he reduces them into possession. Choses in action may consist of debts, money on deposit, arrears of rent, legacies, residuary personal estate, trust funds, stock, bills of exchange, and promissory notes, and other personal property recoverable by action. Where the marriage took place before the 1st January, 1883, and the title of the wife accrued after, the wife is entitled to hold the property to her separate use (sect. 5) ; see In re Parsons, 45 Ch. D. 51. COJSTBACTS IN BELATION TO MAEKIAGB. 131 5. The wife is liable to the extent of her separate property for all contracts entered into by her before marriage.(/) [Note. The husband is Hable for the contracts entered into by his wife before marriage to the extent of the property belonging to his wife which he has acquired through her.(^) ] 6. A wife may bind her husband hy deed, if he has given her a power of attorney to execute deeds as his agent. 7. She can also bind him by a simple contract, when acting as his agent, with his authority. For example. She may carry on a business as her hus- band's agent, draw, and accept bills,(A) and buy goods in the course of such business ; and bind him by all contracts usual and necessary for the purpose. § The authority may be either — (i) Express, or (ii) Implied. And the law as to implied authority, which applies to other agents, applies to the wife, subject to what follows hereunder, (e) Of the implied authority to the wife to pledge the credit of the husband. I. When they are living together — There is a presumption of law that a woman Hving with a man, and represented by him to be his wife, has authority from him to bind him by her contracts for articles necessary and suitable to that station which he has permitted her to assume. 1 UustraliotL. Clark lived with Mary Steers [who passed as, but was not, his wife], and their children and servants in his house at Kensal Green. In January, ( f) Sect. 13 : see Jay v. Robinson, 25 Q. B. D. 407 (0. A.). {g) Sect. 14. {h) Lindus v. Bradwell, 5 C. B. 583. (i) And subject to the Married Women's Property Act, 1882, s. 1. K 2 ' " , 132 EUBEIO OP THE COMMON LAW. 1823, he left England for the East Indies, leaving Steers and the family at Kensal Green. During the time Clark was in England, Blades suppHed certain goods to the house, on Steers' order, which were paid for by Clark ; and after Clark had left, Blades continued to supply goods to Steers till August, 1825. Clark died in the East Indies in December, 1824. In an action by Blades against Clark's executor, it was held that the estate was Hable for the goods supplied during Clark's absence up to the time of his death, when the implied autho- rity was revoked, (a) § This presumption may be eebutted by the husband shewing that he has countekmanded his authoeity. Illustration. Etherington supplied Parrott's wife with stuff, which she made up into clothes. The wife was well supphed with clothes at the time, and Parrott had warned Etherington's servant, on pay- ing for goods previously supplied, not to serve her any more. It was held, that the husband's assent to all contracts made by his wife for necessaries must be presumed, " unless the contrary appear." That here the contrary did appear, and that the husband was not liable. (&) § Although the tradesman has no notice of the reroratinn of the husband's authority. Illustration. Rees was a gentleman of small fortune, hving with his wife at Llanelly. The wife had separate income to the amount of £65, and he allowed her £50 as well, upon which two simas she clothed herself and her six children. He distinctly told her not to pledge his credit beyond this sum, (a) Blades v. Free, 9 B. & C, 167 ; see RvMock v. Marsh, 1 H. & N. 601. (6) Etherington v. Parrott, Ld. Raymond, 1006. (MNTRACTS IN- EEtATTON TO MARRIAGE. 133 and that if she wanted more, she was to apply to him. Jolly, a draper at Bath, supplied Mrs. Rees with wearing apparel to the amount of £20 8s. id., and sued the husband for the amount. The jury found, in addition to the foregoing facts, that the goods supplied were necessaries, that the £50 was not paid regularly, and that Jolly had no notice of the revocation of the husband's authority. The court, nevertheless, held that the husband was not liable.(c) [Note. {[) If the husband sees the wife dressing extravagantly, and takes no notice of it, there will be evidence for the jury of his assent to, and consequently, of a ratification of the purchase, notwithstanding that he may, by giving her an allowance for dress, have countermanded the authority to pledge his credit, (c^) (ii) And, if by paying previous bills he has led the tradesman to beHeve that the wife has his au- thority, there will have been such a holding of the wife out as his agent as to prevent the hus- band from setting up a secret revocation of his authority, (e) ] § It will be a question fob the jury — 1. Whether the goods supplied are necessaries suitable to the wife's station. 2. Whether she had, or had not, authority from her 3. husband to bind him by the contract. Whether the husband subsequently ratified the con- tract by tacitly recognising the fact that the goods had been supplied. («) Jolly V. Bees, 15 C. B. N. S. 628 ; and see Debenham v. Mellon, 6 App. Cas. 24. (rf) Waithman v. Wakefield, 1 Camp. 121. (e) Debenham v. Mellon, 6 App. Cos., per Lord Blackbuen, at p. 36. 134 EUBRIO 01" THE COMMON LAW. § The burthen of proof in the first and third cases will be on the creditor. In the second on the husband. II. When they are living apart. § Here the presumption of law is prima facie that the wife has no authority to pledge her husband's credit. "§ The presumption may be rebutted by the creditor shewing that an authority existed ; and this wiU depend on the circumstances under which they are living separate, (a) 1. When they are living apart hij MUTUAL CONSENT, the wife has an implied authority to pledge her hus- band's credit for articles necessary and suitable to her condition ; Unless — (i) The husband, hy agreement with the wife, makes and pays her an allowance, no matter how inadequate ;(&) or (ii ) She has an income aliunde, and agrees not to require an allowance. Illustration- Burchell and wife executed a deed of separation, by the terms of which the wife retained the income of certain property settled to her separate use, which it appeared amounted to about £300 per annum, and her husband covenanted to pay her £20 per annum towards the maintenance of three of the children of the marriage (who were to remain with the wife) until they were twenty-one. The husband duly paid the £20 per annum. (a) If the wife has this authority, it would appear that the fact that she has separate estate (see Married Women's Property Act, 1882, s. 1 (3) ) would not relieve her husband from his liability. (i) See Johnston v. Sumner, 3 H. & N. 261. CONTRACTS IN RELATION TO MAURIA&B. 135 The wife ran up a bill for butcher's meat ■with Eastland, who sued Burchellin the County Court for the price. The court held, that as the terms upon which the husband had consented to the wife li\dng apart were that she should not look to him for more than £20 per annum, no authority to spend more could be implied.(c) Except where the wife has been put to ex- pense in protecting herself from the hus- band's own violence. For, whatever the amount of the wife's means, the husband has no right to diminish it by his own misconduct, (t^) [Note. Notice to the creditor that the wife has an . allowance is unnecessary. Illustration. Pick was living in adultery apart from his wife. He allowed her a sufficient sum for her maintenance, which was duly paid. Mizen supplied the wife with board and lodg- ing, and sued Pick for the price thereof. He had no notice that Mrs. Pick had a separate allowance. The court held that the absence of notice was immaterial, and that the plaintiff could not recover, (e) ] § It will be a question for the jury — (i) Whether the husband and wife are living apart by mutual consent. (ii) Whether, by the terms of the agreement to live (c) Eastland v. BurcMl, 3 Q. B. D. 432. id) Turner v. RooTces, 10 A. & E. 47. (e) Mizen v. Pick, 3 M. & W. 481. A mere notice by the husband that he will not pay for goods supplied will avail nothing, if under the circumstances of the separation he is liable : Dixon v. Harrell, 8 G. & P. 717. 136 EUBEIO OF THE COMMON LAW. apart, the wife has promised not to pledge her husband's credit, (iii) Whether, if the husband has agreed to make his wife an allowance, he has duly paid it. (iv) Whether the goods supplied were articles necessary and suitable to the wife's degree. § The burden of peoof in cases (i) and (iv) lies on the plaintiff. In cases (ii) and (iii) on the husband. 2. WJien they are living apart otherwise than by mutual consent. (i) Tliere is a presumption of law that the wife has authority to pledge her husband's credit for articles necessary and suitable to her degree. [And this presumption may not be rebutted.] (a.) Where the husband unjustly expels his wife from the house. {^■) His own ill-treatment of her renders it im- possible for the wife to remain imder his roof. Illustration. Prentice and wife lodged with one Bolton, who supplied the wife with goods. Prentice forbade him to do so again, paid him, and left his house. About a year afterwards Prentice refused to main- tain his wife any longer, and left her ; Bolton thereupon furnished her with suit- able necessaries, and sued Prentice for the price. The court held that the husband was hable.(a) [Note. W here the wife has been compelled to leave her home by the cruelty of the husband, she is not bound to return to him (a) Bolton v. Prentice, Stra. 1214. CONTEACTS IN RELATION TO MAURIAGE. 137 upon his invitation ; and liis liability con- tinues. (6) In order to determine his liability, he must apply to the Divorce Court for a restitution of conjugal rights. And that court will then either make a decree in that behalf, or order a judicial separation, according as it is convinced that the cruelty will, or will not, continue. (c) Illustration. Emery continually ill-treated his wife. On one occasion he struck her, and on another beat her so brutally, at the same time abusing her, and swear- ing he would run her through the body, that she left his house that night, almost in a state of nudity. Subsequently she went to her father's, who sued Emery for the cost of her board and lodging. It was proved that the husband was anxious for her to return home. The court held that she was not bound to return if she had reasonable fear for her personal safety, and that the husband was hable for her support, (c) ] (ii) Where the wife leaves tlie husband, and he is willing that she should live with him, she carries with her no authority to pledge his credit in any way.(i) (6) See Biffin v. Bignell, 31 L. J. Ex. 189. A wife deserted by lier husliand can pledge liis credit for necessaries supplied to their child : Bazely v. Forder, L. R. 3 Q. B. 559 ; and a person who advances money to a deserted wife for necessaries can recover it from the husband : Dean v. Soutten, L. R. 9 Eq. 151. (c) Emery v. Emery, 1 Y. & J. 505. (d) Hindley v. Lord Westmeath, 6 B. & C. 200. 138 RUBEIO OP THE COMMON LAW. 3. Where a judicial separation has been decreed. (i) If the court awards alimony, The wife has no authority to pledge her hus- band's credit. Unless the alimony is not paid, in which case her right to pledge his credit revives, (a) (ii) If the court does not award alimony. The wife occupies the position of z,feme sole, and the husband is not responsible for her contracts, (a) § Funeral expenses of the wife, the husband is in all cases liable for. (6) (a) 20 & 21 Vict. c. 85, s. 26. (6) Ambrose v. Kerrison, 10 C. B. 776. INSTRUMENTS NEGOTIABLE BY INDORSEMENT, ETC. 139 CHAPTER IX. INSTRUMENTS NEGOTIABLE BY INDORSEMENT AND DELIVERY. L A BILL OF ESCHAKGE is an unconditional order in writing addressed by one person to another, signed by the person giving it, requiring the person to whom it is addressed to pay on demand or at a fixed and determinable time a sum of money to, or to the order of a specified person, or to bearer, (c) Or, again, it may be to " the bearer." 1. The party addressing the order to the second party is called the " drawer" because he is said to " draw " the biU. 2. The party to whom the order is directed is called the " drawee" because it is he on whom the bill is drawn. § When the drawee has the order directed to him brought to his notice, he may either repudiate it, or he may recognise the obligation to observe such order. If he takes the latter course, he writes his name across the biU, and this is called " accepting " the bill ; he then becomes the " acceptor" and the bill becomes his " acceptance." 3. The party to whom the drawer directs the drawee to pay the amount specified is called the ^^ payee." 4. Without further orders than to pay this third party, the acceptor can pay him, and him only ; and the bill is not transferable or negotiable. If, however, the direction is to pay the third party, "or (c) The definition of a bill of exchange given in the Bills of Exchange Act, 1882, 45 & 46 Vict. c. 61, s. 3 (1). This Act codifies the law ^relating to biUs of exchange, cheques, and promissory notes. 140 KUBRIC OF THE COMMOlf LAW. his order," the acceptor must pay either him, or the person nominated or " ordered " by him, to receive the money in his place, (a) § A person so nominated is called the " indorsee," because he acquires his right to receive the money from the acceptor by virtue of the payee " indorsing " his own name on the back of the bill (thereby becoming the "indorse!-"), with a further direction to pay the amount of the bill to his nominee. (i) If the indorser directs payment to a specified per- son, the bill is said to be " specially indorsed." (ii) If he merely writes his name on the back, and makes no further direction, the bill is said to be " indorsed in blank" and is payable to anyone who presents it. " The bearer." (iii) As soon as the payee has indorsed the bill it becomes transferable ; if specially, to the special indorsee ; if in blanlc, to and by all the world. 5. The " holder" is the party who has possession of the bill, and has a present right to sue the parties to it. § No one but the holder can bring an action on a biU of exchange. 6. Bills of exchange are either — (i) Inland ; that is, drawn and payable within the United Kingdom, (6) or (ii) Foreign ; that is, drawn or payable, or both, beyond the United Kingdom. [Note. Bills of exchange were invented by merchants as a convenient way of assigning a debt. The following is a very simple example of the way in which this is effected. Example. Smith, a maker of steel rails in England, sells and despatches a cargo of steel rails to Jones, (a) As to wliat constitutes a tiualified acceptance, see Demix v. Meyer, 25 Q. B. D. 343 (C. A.). (6) 45 & 46 Vict. c. 61, s. 4 (1). INSTRUMENTS NEGOTIABLE BY INDORSEMENT, ETC. 141 a contractor in the United States. The price is £5,000, and one way, both a risky and a costly one, of paying the price would be, for Jones to remit to Smith by the next mail steamer gold coin to the amount of £5,000. It happens, however,. that Smith owes £5,000 to Brown, also in the United States ; in which case, it is obviously more convenient for Jones to pay £5,000, the price of the rails, to Brown ; and then Smith's, Brown's, and Jones' accounts will be square. In order to effect this. Smith, on shipping the rails, draws a bill on Jones for £5,000 "against the rails," directing Jones to pay £5,000 to Brown, and sends the di-aft by post to Brown. Brown will then present the draft to Jones for acceptance, who will accept it, and pay it, if payable at sight, immediately; if payable at a later date, upon its being presented for payment after that date. Now, if the bill were drnwu by Smith to Brown's order, Brown, on receiving it, might " put it in circulation " by indorsing his name on the back, and handing it to anyone who would give him cash for it. It would then be the duty of tJw hearer to present the bill to Jones for acceptance ; and then, again, if the bill were payable at some subsequent date, and were passed on to others, for whoever was the bearer, at the time the bill became due, to present it to the acceptor for payment. Or again, instead of indorsing the bill in blank. Brown might have indorsed it to the order of Black, Black might have indorsed it to the order of Green, Green to the order of White, White to the order of Grey, and so on until the time during which it was current had expired, each transferor receiving cash in exchange for the bill from his immediate transferee. The following would be 142 BDBEIO OF THE COMMON LAW. the form of such a bill of exchange, before acceptance : — Stamp. 1 April, 1880. Two months after date (or at sight) pay to the order of John Brown, Esq., the sum of £5,000. To Mr. Wilham Jones. Thos. Smith. J § The charactbkistics of a bill of exchange are — 1. That it is a contract, which is assignable at law. [Note. The transfer is made — (i) By indorsement and delivery, when the bill is drawn " to order." (ii) By deHvery only, when drawn " to bearer." ] 2. That the law presumes that consideration has been given for it, imtil the contrary appears. § Of the nature of the liability of the respective parties to a bill of exchange. 1. The promise of the acceptor is an absolute promise to pay the bill, when duly presented. 2. The promise of the drawer is a conditional one to pay, if the acceptor does not. 3. The promise of the indorser is the same ; he being, as far as his next indorsee is concerned, in the same position as the drawer, in regard to him, the indorser. i. And so is the promise of each subsequent indorser, as far as each next indorsee is concerned. "). The acceptor is primarily liable to the holder, and each indorser, beginning with the latest, and going back to the first, and finally the drawer, is in the position of a surety, who promises to pay if the principal debtor (the acceptor) does not. II. A PR0MIS80RY NOTE is an unconditional promise in writing made by one person to another, signed by the maker, engaging to pay on demand, or at a fixed or determinable INSTEUMBNTS NEGOTIABLE BY INDOESEMBNT, ETC. 143 future time, a certain sum in money to or to the order of a specific person, or to bearer, (a) The person giving a promissory note is called the " maker." The following is a form of a promissory note : — Stamp. I promise to pay Mr. John Jones, or his order, the sum of £100 in two months from the date hereof. 1st April, 1880. William Smith. [Note. A promissory note is inchoate and incomplete until its delivery to the payee or bearer. (6)] ■ § A, BAiJK NOTE is a promissory note, given by a bank to the public, and the sum mentioned in it is payable on demand, to the bearer, on presentation at the bank. § An I.O.U. is not a promissory note, and is not transferable. It is merely evidence of the admission of a debt ; what is called " an account stated." III. A CHEQUE ON A BANKER is a bill of exchange, payable on demand, drawn on the banker by his customer, and may be made payable either to order or to bearer, (c) § The banker is in the position only of a drawee, who has not yet accepted a bill, and so cannot be sued by the payee. [§ It differs from a bill of exchange — (i) In the amount of the stamp impressed on it. A cheque on a banker only bearing duty to the amount of one penny and no more, whatever the amount for which it is drawn. Whereas a bill of exchange bears an ad valorem stamp. (a) 45 & 46 Vict. c. 61, s. 83 (1). (6) 45 & 46 Vict. c. 61, s. 84. A promissory note is not invalid by reason only that it contains also a pledge of collateral security with authority to sell or dispose thereof (s. 83). (c) Sect. 73. 144 RUBRIC OF THE COMMON LAW. (ii) It must be payable on demand, and not on a day later than the date of issue. If a cheque is post dated, it is the same thing as a bill of exchange, at so many days' date as intervene between the deHvery of the cheque and the date marked on it. (a)] 1. A banker is bound to honour his customer's cheque, so long as he has funds to meet it of the customer's in his hands ; and is liable to an action, if he does not, for damaging his customer's credit. 2. If a banker pays a forged cheque, the loss is his, and not that of his customer whose name has been forged. 3. But he is not responsible to the customer, if he pays on a forged indorsement. (6) 4. Payment by cheque is a good payment — (i) If the cheque is honoured ; and, (ii) It comes into the hands of the payee. § Crossed cheques. A cheque may, for greater security, be 1 . " Crossed." That is to say, two parallel lines may be drawn across the face of it, between which are written (i) The words "and Company" (a general crossing). (ii) The name of a particular banker (a special crossing) . And where this is done, it is the duty of the banker, on whom the cheque is drawn, only to pay it to — (i) Another banker (if it is crossed generally). (ii) The specified banker (if it is crossed specially), (c) t. The words "not negotiable " may also be written across the face of a cheque, in addition to a general or special " crossing." Any person taking such a cheque (a) Forster v. Machnth, L. R. 2 Ex. 163. (6) 16 & 17 Viot. c. 59, s. 19 : and see 45 & 46 Vict. o. 61, s. 78, as to forged " crossings.'' (c) 45 & 46 Vict. c. 61, ss. 76—82. INSTEUMENTS NEGOTIABLE BY INDORSEMENT, ETC. 145 can neither obtain nor transfer a better title to it than the party had from whom he took it.(d) [ Note. The effect of this will be, that no person taking a cheque crossed " not negotiable " from one who has improperly obtained it, will be able to plead that he is " a holder for value without notice " (see post) or become the " true owner " of the cheque.] 3. A banker on whom a cheque is drawn, who pays it otherwise than as directed by the crossing, is liable to the " true owner " for any loss the latter may sustain, (e) 4. A cheque, which has been issued uncrossed, or only crossed generally, may be subsequently crossed, either generally or specially, by the lawful holder. (/) 5. A cheque may not be crossed specially to more than one banker, except when crossed to an agent for collection by the banker to whom it is first specially indorsed. (^) t). A banker who collects for his customer a cheque crossed generally or specially, is not liable to the true owner should the customer's title to such cheque prove defective. (A) Consideration. - § Consideration is presumed. That is to say, in an action on a negotiable instrument, there is a presumption that consideration has been given for it, and the plaintiff will not be put to the proof thereof. Unless the defendant can make out a prima facie case that, — 1. The bill or note was obtained by undue means, such as fraud, or force ; or, (d) 45 & 46 Vict. c. 61, s. 81. («) 46 & 47 Vict. c. 79 (2). (/; lUd., s. 77 (2). (^) Ibid., s. 77 (5). (/;,) Ibid., s. 82 : see Matthiessen v. London and County Bank, 5 0. P. D. 7. L 146 EUBEIO OF THE COMMON LAW. 2. That the consideration for which it was given is infected with illegality ; or, 3. That the bill was lost or stolen, § If the defendant makes out a prima facie case, im- pugning the bill or note, as above, then the plaintiff is at once put to prove that he, or those through whom he claims, have given consideration for the document. Illustration. Bidwell, who was insolvent, presented a petition to the Bankruptcy Court, and gave a promissory note to E. C. Bailey, one of his creditors, in consideration of the latter agreeing not to oppose the petition. The consideration was, of course, illegal. E. C. Bailey indorsed the note to J. Bailey, who sued Bidwell thereon. Bidwell at the trial having given proof of the above- mentioned facts, it was held that, thereupon, the onus of proving that he had given value for the note was transferred to the plaintiff, (a) § Even if the plaintiff proves that he gave consideration for the bill, or note, he will, nevertheless, not be entitled to recover, if he took it with notice of the infirmity of title, with which the biU, or note, was affected. § The onus of proving that the plaintiff had such notice lies on the defendant. (6) § In order, therefore, to be the lawful holder of a negotiable instrument, and so entitled to recover upon it, the plaintiff must be — 1. A holder for value ; and 2. Without notice of any infirmity in the title to the bill or note. (a) Bailey v. Bidwell, 13 M. & W. 73. (6) Oakley v. Ooddeen, 2 F. & P. 656. INSTRTJMENTS NEGOTIABLE BT INDORSEMENT, ETC. 147 And if he is a holder for value, without notice, his title is unimpeachable. § Notice of such infirmity of title mat be — 1. Direct. 2. Implied. Illustration. John Gomershall and James Francis Gomershall carried on business at Dewsbury, and they, and one Searby, in London, estabHshed a system of making accommodation bills, by drawing bills on each other, and getting them discounted. Both they and Searby knew they were one and all insolvent, and were contemplating bankruptcy. Some of these bills, amounting to £1,727, were bought by Jones for £200. He knew at the time that the Gomershalls were in embarrassed circumstances. He also knew that certain persons could give him full information as to their affairs, but he made no enquiries of them. On the Gomershalls becoming bankrupt, Jones sought to prove against their estate for the £1,727, but his proof was objected to by the trustee in bankruptcy. It was held, that the objection was a vaKd one, and Jones should only be allowed to prove for the £200, the sum actually paid by him for the bills ; and that wilful abstinence from inquiry, where the holder has a suspicion that the bill may not be quite right, is equivalent to notice, (c) Presentment for Acceptance. § A bill may be drawn payable — 1. On demand, or at sight (which are the same).(^) (c) Jones V. Gordon, 2 App. Ca. 616. Id) 45 & 46 Vict. c. 61, s. 10 (1). L 2 148 EUBEIC OF THE COMMON LAW. 2. A certain time after sight. 3. A certain time after date. § When the drawer has delivered a bill to the payee, the latter may either — 1. Put the bill in circulation, or 2. Present it for acceptance to the drawee, or his authorized agent. § If the payee has put it into circulation, the holder may present it for acceptance. § A bill should be presented for acceptance without delay. [ For, if accepted, - the holder obtaiiis the additional security of the acceptor. If not accepted, the antecedent parties become at once liable upon it.] § If a bill be drawn, payable on demand, or at a certain time after sight, it must be presented for acceptance within a reasonable time. (a) ACCEPTANCK. § This is a promise by the drawee to pay the bill when due. It must be — 1. In writing on the bill.(&) 2. Signed.(&) 3. By the drawee or his authorized agent, [h) 4. DeKvered or handed over to the partj^ presenting it. [Note. Until handed over, the acceptance may. be cancelled, (c)] 1. A bill may be accepted at any time, so long as it is in existence. 2. If accepted before it is filled up, it will be for any amount covered by the ad valorem stamp. {a) As to what is " reasonable time," see 45 & 46 Vict. c. 61, s. 40 (3). (6) 45 & 46 Vict. c. 61, s. 21. (c) See Van Diemens Bank v. Victoria Bank, L. R. 2 P. C. 28. INSTRUMENTS NEGOTIABLE BY INDORSEMENT, ETC. 149 3. If after the date at \Yhich it becomes payable it becomes payable by the acceptor on demand. 4. An acceptance may be — (i) Conditional, as " accepted, payable on giving up the bill of lading." (ii) Partial, as when the bill is drawn, say for £100, and it is accepted to the extent of £80. (c^) 5. Waiver. Contrary to the law applicable to contracts generally, an acceptance may be waived after breach, merely by an express renunciation of his claim by the holder. (e) Presentment fok Payment. 1. May be made, either to the acceptor himself or to his duly authorized agent for payment. 2. If a bill of exchange is accepted, payable at a particular place only, presentments for payment must be made at that place in order to charge the acceptor. (^f) 3. If the acceptor or the drawer has given even a general direction as to the particular place at which the bill wiU be payable, presentment must be made at that place, in order to charge the drawer or the indorser.{g) ■4. Three days of grace are allowed by the custom of merchants beyond the date when the bill or note is actually due. Unless it is payable on demand. [Thus a bill drawn on January 1, at three months, will be payable, counting the days of grace, on April 4th.J 5. Bills or notes payable on demand must be presented for payment within " a reasonable time." 6. What is "a reasonable time," is a question of law for the court, depending on the facts of each case.Qi) (d) 45 & 46 Vict. c. 61, s. 19. (e) Foster v. Bawber, 6 Ex. 851. (/) 45 & 46 Vict. c. 61, s. 45. (g) Gibb v. Mather, 8 Bing. 214. Qi) Tindal v. Brown, 1 T. R. 168. 160 EUBEIC 01? THE COMMON LAW. 7. Promissori/ notes, payable on demand, are often given as a continuing security. Interest is sometimes regularly paid on them, from time to time. Bank notes are intended to circulate as long as possible, so that, in such cases, " a reasonable time " may be a period of considerable duration, (a) 8. If a bill or note be not duly presented for payment, all the antecedent parties are discharged, except the acceptor. [ For delay in presenting for payment may work an injury upon the drawer and indorsers, by deterring them from dealing with the acceptor until it is too late. And it is only reasonable that the party, by whose negligence they are put in a worse position, should lose his remedy against them. ] Suspension. § Where a bill is renewed, that is, where a fresh bill is given in substitution of the original one, the debt is suspended until the substituted biU is matured. (6) [Note. The result of this is, that all the indorsers are discharged ;(c) they being in the position of sureties for the principal debtor, the acceptor, to whom time has been given by the holder renewing the bill. (See ante, p. 96.)] Noting and Protesting of Foreign Bills. 1, Noting is a minute, made by a public notary, on a foreign bill (the acceptance or payment of which has been refused), of the date of dishonour. § It should be made on the day of dishonour.((f) S It is a preliminary step to protesting. (a) Chartered Mercantile Bank of India v. Dickson, L. E. 3 P. C. 574. (i) Kendrick v. Lomax, 2 0. & J. 405. (c) Oould V. Robson, 8 East, 576. (d) 45 & 46 Vict. c. 61, s. 51. INSTRUMENTS NEGOTIABLE BY INDORSEMENT, ETC. 151 2. The protest is a solemn declaration of the fact of dis- hononr, written by the notary, on a fair copy of the bill. § The protest may be drawn up at any time. [Note, (i) Acceptance, and (ii) payment for honour (or supra protest). § Is where upon the dishonour of a bill a stranger comes forward, and on the bill being protested, either (i) accepts, or (ii) pays the bill " for the honour," or to protect the credit (i) of the drawer, or (ii) of the acceptor, as the case may be.(e)] Notice of Dishonour. § The holder of a negotiable instrument dishonoured, either as to acceptance or payment, must give notice of the dishonour to the antecedent parties. 1. It may be written or verbal. . 2. It must express(/) (i) What the biU or note is ; (ii) That it has been dishonoured ; (iii) A demand for payment. 3. It may be sent by post 4. To the place of business, or residence of the party addressed 5. Within a reasonable time. (i) Where the parties reside in different places, the notice must be sent off on the following day. (ii) Where in the same place, it must be sent so as to arrive on the following day. 6. By the actual holder or his agent. 7. To either (i) All antecedent indorsers, and the drawer ; or (e) See 45 & 46 Vict. c. 61, s. 65. (/) Solaiie v. Palmer, 2 CI. & F. 93. As to the rules relating to notice of dishonour, see 45 & 46 Vict. c. 61, s. 49. 152 EUBBIC OF THE COMMON LAW. (ii) To the immediate antecedent indorser only. [ In •which case the latter must transmit the notice to his immediate antecedent indorser, and so on, till the notice reaches the drawer. § Each party is bound to transmit the notice without delay. For by any unreasonable delay all remedy against the parties not duly advised will be gone. § Every one whose name is on the bUl, who has not received due notice of dishonour, is dis- charged from all Hability on the bill. Except a drawer who has no effects in the hands of the drawee. And he does not require notice of dishonour, because he must know beforehand that the bill wiU not be honoured, (a) ] Alteration of Bills and Notes. § An alteration in a material partQj) avoids a bill or note. !■ At common law. (c) 2- Under the Stamp Acts. § For the alteration in effect makes the bill a new instru- ment, and a fresh stamp is required. Unless (i) It is made before the bill or note is issued; or (ii) It is made to correct a mistake. [llustrai.ion. On November 8th, 1865, Corn- well made a promissory note for £125, pay- able to Aldous, and expressing no time for payment. Aldous, on getting possession of it, added the words " on demand." It was (a) Garew v. Duckworth, L. R. 4 Ex. 313. (b) See 45 & 46 Vict. c. 61, s. 64. (c) Davidson v. Cooper, 13 M. & W. 343. INSTRUMENTS NEGOTIABLE BY INDOESBMBNT, ETC. 153 held, in an action on the note by Aldous, that the alteration was immaterial, as it only expressed in terms the original effect of the note.(d) Forgery of Bills and Notes. 1. Even a holder for value without notice cannot sue on a forged biU or note. 2. The acceptor, or maker, who pays on a forged bill or note, is not discharged from the debt, for which such biU or note was given. Unless the drawer, by his own negligence, himself facili- tated the committing of the forgery. Illustration. Young, who banked with Grote & Co., had occasion to leave home, and left with his wife three cheques out of his cheque book (signed, but not filled up as to amount) instructing her to fill up and cash them as they were required. The wife filled up one of the cheques for £50 2s. 3d., but so wrote it, that one Worcester, to whom she gave it, was able to insert the word and figure 3 before the word and figures 50, and so to obtain cash from the bank for £350 2s. 3d. It was held that Young, having by his neghgence put it in the power of Worcester to commit the forgery, he, and not the bank, must bear the loss.(e) IV. A BILL OF LADING is a document acknowledging the duc receipt by the shipowner or his captain of the merchandise de- livered to him by the shipper for transport in a general ship (that is, a ship which carries the goods of various merchants, and is not chartered by one man for his own (d) Aldous v. Cornwell, L. R. 3 Q. B. 573. (e) Young v. Grote, 4 Bing. 253 : see Vagliano v. Tlie Bank of England, 23 Q. B. D. 243 (0. A.). 154 BITBBIO OF THE COMMON LAW. cargo alone), signed and handed by the captain to the shipper. After acknowledging the due receipt of the goods, it mentions their destination and the shipowner's undertaking to deliver them safely to the consignee or his assigns, on payment by him or them of the freight, and is commonly made out in triplicate, one part being sent by post to the consignee of the goods, one being retained by the shipper, and the third given to the captain. A bill of lading is transferable hij indorsement and delivery, and the property in the goods mentioned therein, and the right to sue in respect of them, passes thereby to the indorsee.(a) (a) 18&-19 Vict. c. Ill, s. 1. LANDLORD AND TENANT. • 155 CHAPTER X. LANDLORD AND TENANT. § The contract between landlord and tenant is one by wUch tlie landlord, in consideration of a rent paid by the tenant, permits the latter to enjoy his, the landlord's, lands or houses. 1. Demise. The landlord is said to "demise " or let the pro- perty to the tenant. § When the period of letting has expired, the immediate enjoyment of the property " reverts " to the landlord. 2. Reversion. The landlord's interest in the future enjoyment of the property at the termination of the tenancy. 3. A lease is a conveyance by way of demise of land or tene- ments for hfe, or lives, or for years, or at will. § Deffbrent kinds of tenancies for years. 1. A tenancy for more than three years must be made by deed.(6) [Note. 1. A lease for more than three years, not made by deed, will operate as an agreement to grant a lease, (c) § And specific performance of it will be granted. Note. 2. If a tenant enter into possession under a void lease in writing, he becomes, on payment of rent, a tenant from year to year on all- the terms of the lease, not incon- sistent with a yearly tenancy. Illustration. By an agreement in writing, Martin let to Smith a dwelling-house and premises for seven (J) 8 & 9 Vict. c. 106, s. 3 ; 29 Car. 2, c. 3, s. 1. (c) Parker v. Taswdl, 2 De G. & J. 559. 156 EUBEIO OF THE COMMON LAW. years upon certain terms, one of which was that Smith should, in the last year of the term, paint, grain, and varnish the interior, and also whitewash and colour. Smith remained in during the seven years, and at the expiration of that time went out and refused to do the painting, &c. In an action hy Martin for these repairs, it was held that though the lease was void as a lease, by reason of its not being by deed, still, as Smith occupied year by year till the seven years had expired, he was bound to fulfil his agreement as to the repairs ; the agreement sub- stantially being, that if he should occupy so long as seven years, he would at the end of that time do certain joainting, &c.(a)] 2. A tenancy for less than three years, and more than one, must be in writing in order to be enforced ; as, by sect. 4 of the Statute of Frauds, no action can be brought whereby to charge any person on a contract relating to the transfer of an interest in land, unless a memorandum of it has been made in writing. (&) [See ante, p. 41. J 3. A tenancy from yea?' to year is implied by law from the fact of the tenant entering on the premises and pajdng some portion of an annual rent to the landlord. Illustration. Start agreed with Foster to take a house for twenty guineas a-year, the rent to be paid weekly, and either party to be at liberty to give a three months' notice from any quarter-day. Start occupied for more than a year and paid a year's rent. It was held that he was a yearly tenant, (c) § A tenancy from year to year will continue to run until terminated by a lawful notice to quit. (a) Martin v. Smith, L. E. 9 Ex. 50. (b) 29 Car. 2, c. 3, s. 4. (c) Bex V. Hurstmonceaux, 7 B. & C. 551. LANDLORD AND TENANT. 157 § Notice to quit, in the case of a yearly tenancy, must (in the absence of any agreement to the contrary) be given six months before the expiration of, and terminating with, the cm'rent year of occupation. For example. Smith holds a house of Jones as a yearly tenant from January 1, 1880. Should Jones in July, 1882, desire to get rid of him, he must give him a six months' notice on or before June 30th, 1883, to quit on December 31st, 1883, because that will be the earliest date at which he can give him a clear six months' notice, which will terminate at the end of a current year. 4. A tenancy for less than a year may be- half-yearly, quarterly, monthly, or weekly, according as (ij A half-yearly, quarterly, monthly, or weekly notice to quit is stipulated for. (ii) The rent reserved is payable half-yearly, quarterly, monthly, or weekly, (iii) There may be any custom regulating the period of tenancy in any particular case. Provided, that no annual rent is reserved. Illustration. Derrett became tenant to Kemp under an agreement " that he should always be subject to notice to quit at three months' notice." This was held to be a quarterly tenancy. (cZ) § Notice to quit must terminate with the current half- year, quarter, month or week, as the case may be. 5. A tenancy at will is where the premises are let to the tenant to hold at the will of the lessor. It is created by a permission by the lessor to the tenant to occupy. § As soon as any portion of an annual rent is received by the lessor, the tenancy becomes one from year to year. {d) Kemp v. Derrett, 2 Camp. 509 ; and see Rex v. Hurstmonceaux, 7 B. & C. 551. 158 EUBEIC OP THE COMMON LAW. § A TENANCY AT WILL IS TERMINATED. (i) By a demand of possession, no notice to quit being required. (ii) On the doing of any act, either by the lessor or the lessee, inconsistent with an estate at wiU. For example. Acts of ownership exercised on the premises by the lessor. Waste committed by the tenant. (See post, Book III. Part I. Chap. II.) 6. A tenancy on sufferance, as it is called, is in fact no tenancy at all. It is a holding by the tenant against the will of the land- lord, and is an adverse possession. For e.i'ample. When a tenant " holds over," that is, remains in possession of the premises after the expiration of the lease. 7. Use and occupation. When the premises have been used and occupied by permission of the owner, but without any agreement as to rent, a quasi-tenancy arises, and the law implies a promise on the part of the occupier to reasonably compensate the owner for such use and occupation. § This presumption may be rebutted by shewing that the premises were occupied against the wiU of the owner ; the occupier would then be a trespasser, and no contract could be implied between him and the owner. § The material terms which must be contained in a memo- randum OF agreement for a lease (see ante, pp. 155, 156) ARE — 1. The name of the lessor, or his agent. 2. The name of the lessee, or his agent. 3. Some definite description of the property demised. -4. The length of the term. 5. The date of the commencement. 6. The amount of the rent (and of the premium, if any). LANDLORD AND TENANT. 159 7. Any special covenants, beside the usual ones [wliicli are implied as part of the contract] . § Usual covenants ake — (i) To pay rent, (ii) To repair, (iii) For quiet enjoyment. (iv) A proviso for re-entry on non-payment of rent. § Specific performance of a parol agreement for a lease WILL BE granted, where under the parol agreement the owner has allowed the tenant to enter, and to make a special outlay on the land on the faith of the parol contract. Illustration. Davenport verhally agreed to let Farrell a farm for fourteen years. On the faith of this agreement Farrell took possession, and expended a considerable sum of money in making improvements. Davenport subsequently refused to grant a lease, and gave Farrell notice to quit. The Court granted specific performance of the parol agreement, (a) § The obligations of the lessor and lessee, respectively, ARE I. Express. That is, agreed to and defined in terms. II. ImpHed [unless expressly excluded by the terms of the tenancy]. I. . Express obligations. § Are those defined in terms in the instrument of demise. In leases under seal they are embodied in the covenants contained therein. § Covenants in the same deed may be — 1. Dependent. That is, when the performance of one is a condition precedent to the performance of the other. (a) Farrell v. Davenport, 8 Jur. N. S. 1043. 160 EUBEIC OP THE COMMON LAW. For example. Where Jones covenants to keep a house in repair upon Smith, his landlord, putting it in repair. •i. Independent. That is, where one party covenants to do one thing, and the other to do another ; and the breach by one party is no answer to an action for a breach by the other. For e.vample. Where Smith, the lessor, covenants to repair the outside of a house, and Jones, the lessee, covenants to repair the inside ; the covenants are independent ; and it is no excuse in an action by Smith for a breach of Jones's covenant for Jones to aver that Smith had not performed his. 3. Real. Such as are annexed to the estate ; or, as it is called, " run with the land." § They run with the land, or with the reversion, according as the Hability to perform them, or the right to take advantage of them, passes to the assignee of the term or of the reversion.(a) § They pass to the assignee of the term, or of the reversion, when they affect the quality and value of the land, either — (i) During the term, or (ii) At the end of the term. § The following covenants run with the land so as to bind the assignee of the term, or of the reversion, (i) To pay rent, taxes, or ground rent, (ii) To repair or keep in repair, (iii) To maintain a sea-wall, (iv) To repair tenant's fixtures and machinery fixed to the premises, (v) Not to plough. (vi) To use the land in a husbandlike manner, (vii) To reside on the premises during the term. ( viii) To carry all corn grown on the land to the lessor's mill. (a) See Ckgg v. Hands, 44 Ch. D. 503 (C. A.). LANDLOED AND TENANT. 161 (ix) To leave the land as well stocked with game as it was at the beginning of the term. (x) To supply the demised premises with good water, (xi) For quiet enjoyment, (xii) For further assurance, (xiii) To produce title deeds, (xiv) For renewal, (xv) To insure. (xvi) Not to. assign or underlet without leave, (xvii) Not to carry on a particular trade, (xviii) All implied covenants. 4. Personal. Such as are collateral to the thing demised ; do not run with the land ; nor bind the assignees of the term or reversion. § These are covenants which do not touch or concern the land, but are personal obligations, binding only on the lessor and the lessee. lUiistraf/on. Hayward demised certain premises to be used as a public-house, and covenanted not to open another within the distance of half a mile. The lessee assigned the lease to Thomas. Hayward broke his promise, and opened another pubHc-house within the prescribed distance. In an action by Thomas, it was held that the covenant did not run with the land, and that he, being an assignee of the lease, could not maintain an action upon such covenant. (6) Of the liability of a lessee and his assigns on covenants IN THE lease 1. The lessee is Hable to the lessor on his covenants, real and personal, although he may have assigned his lease. 2. The assignee of the lease is liable to the lessor on the covenants running with the land, so long as he does not assign his lease over. (b) Thomas v. Emjivard, L. B. 4 Ex. 311. M 162 EUBRIC OF THE COMMON LAW. § But should he assign his lease to another his habiUty on the covenants ceases, and attaches on his assignee. '6. The assignor and the assignee of the lease are liable to each other on any covenants they may have entered into with each other. i. If the lessee makes an underlease of the premises, there is no " privity of estate " between the original assignor and the under-lessee ; and the under-lessee is not liable to the original lessor in any shape or way ; but he is, of course, liable to his immediate lessor (the original lessee) on any covenants he may have made with him. 5. An underlease of the whole of the lessee's term is in effect an assignment of the term ; but there being no privity of estate between the original lessor and the under-lessee, the latter is nevertheless not liable to the original lessor on any covenants in the original lease, (a) TNuTE 1. Express promises ly the lessor are usually of a very limited character, as it is usual for the landlord to cast all the burthen of repairing, insuring, ratepaying, &c., on the tenant. ■2. Express promises by the lessee may be made, of course, according to the fancy of the parties, but those com- monly inserted in leases (according to the nature of the premises demised) are — (i ) A covenant to insure. (ii) A covenant not to assign without leave. (iii) A covenant not to carry on any noxious trade on the premises, or not to use the premises for some particular purpose, as for the sale of spirituous liquors or beer, (iv) To pay rent, (v) To pay rates and taxes. (vi) To repair. (a) Beardman v. Wilson, L. R. 4 C. P. 57. LAinDLORD AND TENANT. 163 § Covenants to repair vary in severity according to their terms. For example — (a.) A covenant to keep in repair during the term, means that the premises must be put into repair and kept so, at all times during the term, (a^-) a general covenant to repair, means that the premises are to be kept in substantial repair. ( y.) A covenant to put premises " into habitable repair," means that they are to be put into a better state than they, were when the tenant found them, and a state reasonably^ fit for the class of persons who are likely to inhabit them. (5.) Under a covenant "to repair and keep in repair," if there is no exception as to damage by fire, the tenant is bound to rebuild the premises if they are burnt down, and is bound to pay rent all the time, notwithstand- ing that the premises are uninhabitable. ( f ■ ) In the determining of the sufficiency of repair, done under a covenant to repair, the jury are to take into consideration — 1. The age and character of the building. 2. Its state at the commencement of the lease. 3. The length of the lease. ■4. The character of the locality, and the class of inhabitants of the adjacent premises. (6) [For what would be good repair for St. Giles would not be good repair for Belgravia.J (6) Guttridge v. MvMyard, 1 M. & Eoh. 336 ; Proudfoot v. Eart, 25 Q. B. D. 42 (C. A.). M 2 164 EUBEIO OF THE COMMON LAW. ( vii) Special covenants to repair ; as, to paint the out- side wood and ironwork once in three years, and the inside every seven, to re-paper, re-colour, &c. (viii ) To surrender the premises at the end of the term in good repair. fix) Provisoes for re-entry on non-payment of rent, and for breach of covenant to repair, &c. (x) To repair after notice to repair has been given. (xi) For liberty to the lessor, or his agent, to enter and view the state of repair of the premises. II. Implied Obligations. 1. Those of the lessor. (i) That he will give the tenant possession. (ii) That he has a good title. (iii) That the tenant shall not be disturbed in his enjoyment of the premises. (iv) That if the premises consist of a furnished house, they are reasonably fit for the purpose for which they are let. lUuslration. Smith let a furnished house at Brighton to Sir John Marrable for six weeks at eight guineas per week. On entering it was found that all the beds but one were so infested with bugs^that the family quitted at once, and tendered one week's rent, The Court held that when a man lets a ready fur- nished house there is an implied condition that it is habitable, (a) (v) That the tenant of lands may remove and dispose of the annual produce of the soil or " emblements," which he has sown during his tenancy, and which has not come to maturity at the end of his tenancy. (vi) That, in the absence of express conditions to the contrary, (a) Smith v. Marrable, 11 M. & W. 5 ; and see Wilson v. Finch Eattm, 2 Ex. D. 336. LANDLOED AND TENANT. 165 the " custom of the country " shall be engrafted upon the terms of the tenancy of cultivable land. [Note. But there is fo hnplied pri)i)i?se hy the lessor, («■) That the premises are fit for the purpose for which they are let, if they consist of an unfurnished house. Qi) {^.) That the house will last till the end of the term, (r) To do any' repairs. (c) (^ ) To rebuild if the house is destroyed. (rf) J Those of the lessee. (i) That he will use a house in tenantable, and land in a husbandUke manner, (ii) Not to commit waste, either commissive or permissive. (See post. Book III. Part I. Chap. II. A yearly tenant is only liable for commissive waste.) (iii) To give up the premises at the end of the term.(e) (iv) To pay rent. (v) To cultivate land according to the custom of the country, (vi) A tenant is estopped from alleging that his landlord had no title at the time of the demise. But he may show that such title has expired. (/) Of the Determination of the Tenancy. By notice to quit. This is necessary only where the length of the term is not definitely fixed, as in the case of a tenancy from year to year. § The notice may be — 1. An agreed notice. 2. The customary notice. (J) Hart V. Windsor, 12 M. & W. 68. (c) Ardm v. PuUen, 10 M. & W. 321. {d) Gott V. Ga7idy, 2 E. & B. 845. (e) Henderson v. Squire, L. R. 4 Q. B. 170. (/) Delaney v. Fox, 2 C. B. N. S. 768. 166 EUBBIO OP THE COMMON LAW. 3. Where there is neither an agreed nor a customary notice, a reasonable notice. § It must be given so as to expire at the end of a current year, half-year, quarter, month, or week, as the case may be, unless there is an agreement to the contrary. (See ante, p. 157.) § Notice to quit under the Agricultubal Holdings Act, 1883, is (where there is no agreed notice) increased from six to twelve months. 1. Where the holding is agricultural or pastoral. 2. Where the parties have not contracted themselves out of the Act. (a) § The notice may be waived by — 1. The lessor accepting, or distraining for fresh rent due after service of the notice. 2. By serving a fresh notice to quit. II. By surrender. (See ante, p. 38.) This must be — 1. By deed, where the demise is for more than thi'ee years, (i) 2. In writing, where the demise is for less than three years, whether such demise be in writing or by parol, (c) 3. By operation of law ; which may arise — (i) By the substituting a fresh lease for the existing lease, (ii) By the landlord accepting a fresh tenant in heu of the original one, under an agreement between all three parties ; provided the new tenant actually takes possession. Illustration. Atherston, who was tenant to Nikells under a demise in writing for three years, quitted the premises, and wrote to his landlord, stating his inability to pay the rent (a) 46 & 47 Vict. c. 61, s. 33. (6) 8 & 9 Vict. c. 109, s. 3 ; 29 Car. 2, c. 3, s. 3. (c) 29 Car. 2, c. 3, s. 3. LANDLOED AND TENANT. 167 and that lie trusted the rooms would be let by the landlord to someone else on better terms. Nikells accordingly re-let the premises to another tenant, who entered, and paid rent. Nikells, however, after finding the latter insolvent, turned round and sued Atherston for back rent. The Court held that Atherston's term had been surrendered by operation of law.(i) (iii) By an agreement between the lessor and the lessee that the term shall be put an end to, followed by the formal quitting of the tenant, and entry by the landlord, of the premises. Illustration. Popplewell was tenant to Phene of certain premises, and on April 12th, 1861, quitted, and left the key at Phene's counting- house. The key was not returned. On 4th May following, Phene entered and caused the front of the house to be washed down. In June he gave the key to an auctioneer to enable him to show the premises, and a board was put up for letting. Popplewell's name was painted out on September 24th, and on October 26th Phene gave him formal notice that he resumed possession. In an action by Phene for three quarters' rent in arrear, it was held that the above facts amounted to a surrender by operation of law.(e) [Note. Surrender by operation of law is also called surrender by estoppel. § Estoppel in pais {estouper, ohstipare) is where a man is precluded by his own conduct or statements from alleging a state of facts {d) NikelU v. Atherston, 10 Q. B. 944. (e) PhenS v. Popplewell, 12 C. B. N. S. 334. 168 EUBBIC OE THE COMMON LAW. different from that which he has represented as existing. For imtorirf. Where the lessee accepts a new lease from the lessor, he affirms, or is- estopped from denjdng, that his lessor had power to grant the new lease ; and as the lessor could not grant the new lease till the old one had been surrendered, the law- assumes that on acceptance of such new lease, there has been already a surrender of the old one. ] [Note. Where a lessee has made an underlease, lie cannot, hy surrendering his term, affect, or prejudice the rights of the under-lessee, [a) Illustration. Stratton held two pieces of land in the Isle of Wight, B & C, of Sir Eichard Simeon under a lease, by which he covenanted that if he built on B & C, the houses on B should have a sea view over C. Stratton gave an underlease of B to Harbour, and covenanted to observe the covenants in the original lease. Harbour built on B, and assigned his lease to Piggott. Afterwards Stratton sur- rendered his' lease to Simeon, and took from him another without the restrictive covenants, and pro- ceeded to build on C, so as to obstruct the view from B. Piggott applied for an injunction to restrain Stratton from so building ; and it was held that the rights of Harbour under Stratton's covenant to obserA'e the covenants in the original lease, were not affected by the surrender of that lease, and that Piggott was entitled to his injunction. (6)] III. Merger. That is, when there is an union of the term with (a) 8 c& 9 Vict. c. 106, s. 9, As to effect on sublessee of disclaimer Ly trustee of bankrupt lessee : see Smalley v. Hardinge, 6 Q. B. D. 371. (6) Piggott v. Stratton, 1 De G. F. & J. 33. LANDLORD AND TENANT. 169 the immediate reversion ; both being vested in the same person, in the same right. The term is then said to be merged, or drowned, in the reversion ; otherwise the same person would be both landlord and tenant at the same time. For instance. If Smith lets premises to Jones for twenty years, and then, subsequently, sells him the fee simple, the lease is merged in the reversion. IV. Forfeiture. A lease may be forfeited by the breach of — 1. A condition, or proviso, in the lease ; as a condition that the term shall be determined on the bankruptcy of the tenant. 2. A covenant in the lease. Provided there is also a condition in the lease for re- . entry on the breach of such covenant. For example. A breach of a bare covenant to repair does not create a forfeiture ; but if there is also a proviso for re-entry in case the covenant to repair should be broken, then a forfeiture ensues on breach of the covenant. § A roRFBiTCJRB WILL BE WAIVED, if after breach of the covenant or condition, and with a knowledge of such breach, the lessor does any act, whereby he acknowledges a continuance of the tenancy at a later period. For instance. If he accept or distrain for rent which accrues due after the date of the forfeiture. § But if ejectment is brought by the lessor for the forfeiture, it is shown that he has unequivocally elected to determine the lease ; and no subsequent receipt of, or distress for rent will imply a waiver. Illustration. Moss was tenant of a farm to Grimwood. The latter brought ejectment on July 21st for certain breaches of covenant. Subsequently he distrained for rent due on June 24th. At the hearing of the suit for ejectment, it was contended 170 BUBEIC OF THE COMMON LAW. that the subsequent distress was a waiver of the breach of covenant ; but the Court held that it was perhaps an act of trespass, but was no waiver, (a) § FOKFEITUEE IS RELIEVED AGAINST IN TWO CASES. 1. For non-payment of rent, if the tenant within six months of the time that execution has been executed on a judgment in ejectment against him, pays all arrears of rent with full costs. (V) 2. For breach of covenant to insure where — (i) No loss or damage by fire has occurred, (ii) The breach has occurred without fraud or gross negligence, (iii) The premises have been duly re-insured at the time of the apphcation for relief, (iv) Relief has not already been given to the same person, (v) No previous forfeiture has been waived in favour of the same person, (c) V. DiscLAiMBE. If a tenant directly repudiates his landlord's title, either — 1. By an act in pais (that is an overt, notorious act, as by making a feoffment of the land to another by livery of seisin) or 2. By denying it upon record (that is, in a Court of law ; as, if a tenant were to suffer judgment by default in an action of ejectment brought by a stranger, or plead in an action by a stranger, admitting thereby the stranger's title) ; a forfeiture of a lease for a term of years is ipso facto committed. (cZ) (a) Grimwood v. Moss, L. R. 7 C. P. 360. (6) 15 & 16 Vict. c. V6, ss. 210, 212 ; 23 & 24 Vict. c. 126, s. 1 ; 44 & 45 Vict, c. 41, s. 14 (8). (c) 22 & 23 Vict. c. 35, ss. 4, 6. (rf) Doe d. Graves v. TVells, 10 A. & E. 427 ; Coke 251i, 252a. LANDLOED AND TENANT. 171 § A YEARLY TENANCY may be forfeited by a parol disclaimer [or, to speak more correctly, tbe denial of the tenancy dispenses with the need of a notice to quit.(e)] [Note. If a tenant for years wilfully "holds over" aft^r written demand of possession, or after Ms own notice to quit given to tlie lessor, the lessor may sice him for double rent.{f)^ § A TRUSTEE OF A BANKRUPT'S ESTATE may, in Ms discretion, by writing, under his hand, within three months after his appointment as trustee, disclaim a lease, under which the bankrupt held as lessee, and which has vested in the trustee under the Bankruptcy Act, 1883. (g) Remedies of the Lessor for Non-payment of Rent. I. An action, either on'a covenant or a simple contract, as the case may be. II. A distress, which is • the taking, without legal process, cattle or goods, as a pledge to compel the satisfaction of the demand. § It is essential that, 1. There should be a tenancy between the parties. 2. That there should be rent due. 3. That the distrainor should have a present right to the reversion. [Note. This is a very ancient remedy, which a landlord is privileged to exercise for the recovery of rent that is in arrear. He has a right to go upon the premises, and either him- self, or by his bailiff, to select, and seize of the goods thereon, such of those, not privileged from distress (see (e) Doe d. Graves v. fVells, 10 A. & E, 427 ; Coke 2516, 252a. (/) 4 Geo. 2, c. 28, s. 1 ; 11 Geo. 2, c. 19, s. 18. (g) 46 & 47 Vict. c. 52, s. 55. 172 RUBRIC or THE COMMON LAW. post. Book III. Part III. Cliap. II.), as he may consider sufficient to satisfy his claim. He will then " impound " them ; if cattle are distrained, by taking them to the pubHc pound, or, if there is no pubhc pound, to some safe place ; if goods are distrained, by collecting them together on the demised premises, (a) and " putting a man in possession " (that is, leaving a man on the premises to look after them), or removing them to a place for safe keeping. He will next make an inventory of the goods taken, and serve it with a " notice of distress " [that is, of the fact of the distress ; of the amount payable for rent and charges ; and of the time within which the goods must be " replevied " (see post, "Replevin")] upon the tenant. On the expiration of the time within which the tenant is entitled to replevy (that is, five days) he will remove the goods and have them appraised and sold.(&) If there is any balance after the claim for rent, and the costs of the distress, &c., have been satisfied, it will be paid over to the tenant. If the sale does not produce sufficient to satisfy the arrears, a second distress (where cattle are distrained) may be put in ; provided that there were not sufficient goods on the premises, which could have been taken on the first distress, had the distrainor thought proper.(c)] § The landlord may distrain for six years' arrears of rent, and no more.((i) § When goods have been fraudulently removed by the tenant to avoid a distress, the landlord may follow, and distrain them within thirty days of such removal. (^) (a) 11 Geo. 2, c. 19, s. 10. (6) 2 W. & M. c. 5. (c) 17 Car. 2, c. 7, s. 4, As to distress under tlie Agricultural Holdings Act, 1883 : see 46 & 47 Vict. c. 61, ss. 44-7. (rf) 3 & 4 Will. 4, c. 27, s. 42. (e) 8 Ann. c. 14, s. 2 ; 11 Geo. 2, c. 19, ». 1. .LANDLORD AND TENANT. 173 Prot'/'ded the goods have not been sold to a bond fide purchaser, (e) or if at the time of the distress the tenant's interest in the demised premises has come to an end, and he is no longer in possession. (/) [As to when, where, and on what, a distress may be made, see posi, the chapter on " Wrongful Distress."] Of the Recovery of Land. § If a trespasser comes upon the land of another, he may be ejected by the use of such physical force as is necessary for the purpose. § If, however, a person comes into possession of premises lawfully, and refuses to quit them after the time has expired during which he can lawfully remain there, the real owner with an immediate right of possession cannot expel him by main force ; or he will be liable to an indictment for the crime of " forcible entry," and subject to imprisonment during the Queen's pleasure. He must, therefore, take steps to dispossess the wrongful occupier by a lawful process. I. By ejectment at common law, to support which it is § Essential that the lessor has a right to re-enter — 1. By reason of the expiration of the term, 2. Its determination by a lawful notice to quit, or 3. Its forfeiture. [Note. If the forfeititre is for non-payment oj vent, a formal demand of the rent (unless this is rendered unnecessary by the terms of the lease) must Tdc made — (i) By the landlord, or his agent. (ii) On the actual last day remaining to the tenant on which to pay it. (iii) At a convenient time before, and at, sunset. (/) Gray v. &,a%t, 11 Q. B. D. 668. 174 BUBEIO OF THE COMMON LAW. (iv) At the place specified for the paymeriFof'the rent ; and if no place is specified, on the demised premises, (v) Of the precise sum due, neither more nor less. J II. By the Common Law Procedure Act, 1852,(a) for non- payment OF rent. To support which it is § Essential — 1. That the ejectment be brought by a landlord against his tenant. 2. That the landlord has a right to re-enter for non- payment of rent. .3. That there is at least one half-year's rent due, and in arrear. 4. That there is no sufficient distress to be found on the premises. [Note. No formal demand of the rent need be proved. J III. By the Common Law Procedure Act, 1852,(6) tie lessor may, with his writ of ejectment, serve a notice on the lessee, and call on him to find security for the costs and damages of the action ; and in default may sign judgment for recovery of possession and costs. 1. Where there is a lease or agreement in writing, 2. Where the term has either (i) Expired, or (ii) Been determined by a regular notice to quit, and 3. Where the lessee refuses to quit after lawful demand in writing. IV. By the County Court Act, 1888, Sects. 138 and 139 ,(c) the lessor can get an order for possession from a county court against the lessee. (a) 15 & 16 Vict. c. 76, s. 210. (6) Ibid., s. 213. (c) 51 & 52 Vict. c. 43, ss. 138 and 139. LANDLORD AND TENANT. 175 , 1. For holding over. (i) The term having expired, or (ii) Having been determined by a legal notice to quit. 2. For non-payment of rent. (i) Half a year's rent being in arrear. (ii) There being no suificient distress to be found on the premises, (iii) The lessor having a right to re-enter. Provided — 1. Neither the annual value of the premises, nor the rent, exceeds £50. 2. The claim is by the landlord against his tenant. V. Justices in petty sessions may issue a warrant to the POLICE TO GIVE POSSESSION OF PREMISES TO A LANDLORD. 1. Where there has been a tenancy at will or for a term not exceeding seven years. 2. The term has expired or been lawfully determined. 3. The tenant is holding over. 4. The annual rent payable does not exceed £20 ; and 5. No fine has been reserved or made payable.(t^) § Mesne profits. Intermediate profits. That is, the profits which have been prising from the land between the time when the right of the plaintiff in ejectment first accrued, and the time of his recovery in the action of ejectment. § A claim for mesne profits may be joined in an action of ejectment, (e) (d) 1 & 2 Vict. c. 74, s. 1. (e) C. L. P. Act, 1852, s. 214, and Eiiles of Supreme Court, 1883, Order 18, r, 2, BOOK III. RELATINa TO PA.RTIOULAR TORTS. PAET I. OF THE ESTPRINGEMENT OF THE PEIVATB EIGHTS OF OWNERS AND OCCUPIBES OF LAND. CHAPTEE I. SERVITUDES. § A see\t;tude is a burthen imposed on a man's land for the benefit of adjoining land. § The servient tenement is the name given to the land, on which the burthen is imposed, § The dominant tenement to that, in favour of which the servient tenement is burthened. For instance, if Jones owns No. 1, and Smith owns No. 2, in a street, and the drain of No. 1 has a right to empty itself into the drain of No. 2, the latter being connected with the main sewer in the street ; No. 1 is a dominant tenement, and No. 2 is a servient tene- ment. And No. 1 has the benefit of the servitude with which No. 2 is burthened, by virtue of which the sewage of No. 1 is allowed to pass into the main through the drain pipes of No. 2. N 178 BUBKIO OP THE COMMON LAW. I. Natubal servitudes are those, which are from the nature of the case the necessary adjunct to the properties, to which they are annexed. 1 . The burthen of receiving all streams of water, which naturally flow down to them from adjoining land of a higher level. I Uustratiov . Under an award by enclosure com- missioners, a drain was made over two adjoining closes, belonging respectively to Sharpe and to Hancock. Afterwards Sharpe opened a fresh drain into his part of the awarded drain, which consequently carried more water into the lower portion, which it was Hancock's duty to cleanse. In an action by Sharpe against Hancock, for not cleansing the drain, by reason of which the sur- face water accumulated on Sharpe's land, it was held, that Hancock was bound to provide for the due carrying off of such water as naturally flowed down to his land through the awarded drain ; but not for additional water cast upon him by the act of the plaintiff, (a) 2. The burthen of transmitting, unpolluted, all streams of water, flowing upon them, to adjoining land of a lower level. Subject to the right of making such a reasonable use of the stream during its transit,' as does not interfere with the enjoyment of the water by the next riparian owner. Ilhmtratwri. Wood & Co., and Waud & Co., were worsted spinners at Bradford ; and each had mills on a, stream called the Bowling Beck. Wood & Co.'s mills were lower down than Waud & CJo.'s. The latter fouled the stream (a) Sharpe v. Hancock, 7 M. & G. 354. SERVITUDES. 179 by turning into it soap-lees and wool refuse; but the water was still sufficiently pure for "Wood & Co.'s works. In an action by the latter it was held that they had a right to have transmitted to them the natural stream, in its natural state, free from pollution ; and that they were entitled to maintain the action for the damage in law, though there was no damage from the pollution in fact. (6) 3. The burthen of affording such lateral support to the next adjoining land, as will suffice to keep it in its position, when not weighted by the addition of anything superimposed, such as a building. Ilhisfrrifiov. Mrs. Wyatt and Harrison were owners of adjoining pieces of land, and the former built a house on, and close to, the edge of her own land. Afterwards Harrison dug away the soil on his own ground, in consequence of which the foundations of Mrs. "Wyatt's house sank, and the house was greatly injured. In an action by Mrs. Wyatt, the Court held that Harrison's land was bound only to keep the plaintiff's land in its place ; and that she had no right of support to the artificial weight of the house which she had built, (c) 4. The burthen on the owner of the subsoil of affording such vertical support to the surface of the land, as will suffice to keep it in position when not weighted by the addition of anything superimposed, such as a building. Illy straf ion. Humphries was possessed of certain arable land, under which were certain coal mines, (5) Wood V. JVaud, 3 Ex. 748. (c) Wyatt V. Ea/rrison, 3 B. & Ad. 871. N 2 180 EUBEIC OP THE COMMON LAW. leased by the Durham Coal Company of the Bishop of Durham, the freeholder of the mines. The coal company removed the coal without leaving sufficient support to the surface. In con- sequence of which Humphries' land sank. In an action by him against the coal company (sued in the name of their secretary) the Court held that they were liable ; although they had not been guilty of any neghgence in the way in which they had worked their mines, (a) II. CJoNVENTiONAL SEKViTUDBS are thosc wMch are of greater extent than natural servitudes, and have come into existence by virtue of a contract, express or implied, between the parties. They are — 1. Easements. (i) Rights to poUute the air. (ii) Rights to have light unobstructed, (iii) Rights of lateral and vertical support to buildings. (iv) Rights of fouling water, (v) Rights to divert, and use, and pen back v^ater. (m) Private rights of \yay. [Note. § A y'((?*//c right of way is not an easement. It is a " dedication to the public" by the owner, of the occupation of the surface of the land for the purpose of passing and repassing. (6) § It is proved by evidence of an animus dedicandi in the owner of the soil, and no user for any particular length of time is required to establish it.^' § An easement is a privilege without profit which the owner (a) Hwnphries v. Brogden, 12 Q. B. 739. (6) Bangeley v. The Midland Railway Company, L. R. 3 Ch. 311. SEEVITUDES. 181 of land has a right to enjoy in respect of that land over the land of another. § It is essential that it should be necessary to, and accessorial to the use and enjoyment of land, and is appurtenant thereto. § An easement cannot exist " in gross ; " for there must be both a dominant and a servient tenement. A contract creating such a right, is a mere personal covenant, and is in other words " a license." (c) § An easement is transferable with the land to which it is accessorial. 2. Peofits a prendre. § A peofit"a prendre is the privilege of taldng some pan of any natural product in the land of another, (i) Those which are attached, and accessorial to, the USE and enjoyment of land. [Note. Incidents — 1. There must be a dominant tenement to which they are attached, and for the benefit of which they exist, (c) 2. When assigned along with the dominant tene- ment, they are still binding on the servient tenement, (c)] ' («•) A right of common appendent to land. This is the right of the freeholders of a manor to depasture on the lord's waste, such horses, oxen, kine, and sheep, as they require for ploughing, and manur- ing those of their lands which have been in tillage from time immemorial, or have been originally in tillage, and subsequently laid down in grass. ( certain manors in the North of England, the customary tenants have rights of sole and separate pasturage, called " cattlegates " and " cowgrasses," which are assignable though held in gross.) 3. Cannot be claimed under the Prescription Act. (Seeposi, p. 191.)] ("■) Common of pasture. (8. ) Common of estovers. ( y-) Common of turbary. [Note. As a rule, rights of estovers and turbary are only appurtenant to some house. But where the right granted is to take a fixed and limited quantity, it may be severed, and becomes a right in gross.] ( ^- ) T/ie right of sporting and fishimj ; (*•'* TJie right of digging and remocing sand, gravel, clay, minerals, ^c, ^c. Conventional Servitudes are claimed by virtue of. 1. An express grant. That is, the right to enjoy the privilege must be given to the grantee, or reserved to the grantor, by an instrument under seal. 164 RUBRIC OF THE COMMON LAW. § Anything short of this, whether in writing or by parol, is merely a " license," and excuses a trespass but confers no right. Illustration. Hewlins was tenant of the "Swan Inn" at Chichester, and his landlords, on re-building the inn, agreed with the landlord of one Shippam, who occupied the adjoining premises, that they would pave Shippam's yard if they might be allowed to construct a drain underneath it for the use of " The Swan." The drain was made and the yard paved, and after- wards Shippam stopped up the drain. In an action of trespass by Hewlins against Shippam for so doing, it was held that the right to have the drain under Shippam's yard, not having been given by deed, could not be maintained, and that Shippam had not been guilty of a trespass in stopping it. (a) [Note. A servitude may, however, be created by devise. (6)] 2. An implied grant in the follovring cases. 0) Where a man has made the enjoyment of one portion of his property visibly dependent on another portion, then ( " ) If he parts with the dominant tenement, he impliedly grants along with it the easement apparent, as accessorial. Elustration. In 1787 one McCaa owned a house and garden, and also some adjoining land, on which he made a tanyard, and a drain from the tanyard into a cesspool in the garden. McCaa sold first the tanyard, and then the garden ; and by divers mesne assurances the tanyard became the property of William and John Cochrane, and the house and garden of one Ewart. Ewart (a) Hewlins v. Shippam, 5 B. & 0. 229. (6) Phesey v. Vicary, 16 M. & W. 484. SERVITUDES. 185 stopped up the drain in the garden, and the Cochranes hrought their action. The House of Lords held, that an implied grant of the easement passed to the Cochranes. (c) (^- ) But if he parts with the servient tenement, he cannot derogate from his own grant, and so cannot im- pliedly reserve any easement over it in favour of the dominant tenement remaining in his possession. Illustration. ]Knox from 1841 to 1845 owned a dry dock, and a coal wharf adjoining ; during which time the howsprits of vessels, repairing in the dock, used to project some fourteen feet over the wharf. In 1845 Knox sold the wharf to Brown, without any express reservation. In 1846 he let the dock to Mills for 21 years ; and in 1861 sold it, subject to the lease, to Suffield. During all this time, also, the bowsprits used to project as before. In 1861 Brown proceeded to build warehouses on the wharf ; and Suffield prayed for an injunction against him to restrain him from so. building, as to interfere with the bowsprits. The injunction was refused. (dZ) (ii) Where a man grants land, to which there is no access, except over his own land, he impliedly grants also "a way of necessity " over his own land, which will continue so long as the necessity lasts. lllustratimi. Davies was assignee of a building agree- ment with Eton College, by which it was agreed that the builder should erect on some land at Hampstead, belonging to the college, two rows of houses back to back, between which should be certain mews approach- able only through an archway in one of the rows (c) Ewart v. Cochrane, 4 Macq. 117. [d) Suffield v. Brown, 33 L. J. Ch. 258. 186 EUBEIO OF THE COMMON LAW. of houses ; and on the completion of each house the college should grant a lease of the land and house to the builder. When the builder had completed the house, under which was the archway, wherethrough the mews were to be approached, the college granted him a lease, which he assigned to Sear. No reservation of a right of way under the archway was mentioned. When the buildings were all completed, and the mews consequently surrounded, Sear stopped up the archway. And on Davies remo'S'ing the obstruction, brought an action of trespass against him. Davies applied for an injunction to restrain Sear from stopping up the archway, and it was held, that there was an imphed reservation in the lease to Sear of a right of way, being a way of necessity, under the archway to the mews, (a) (iii) Where a man sells land for huilding he impliedly also grants a right of lateral, and (if he reserves the minerals) of vertical, support from his own land, sufficient to sustain the grantee's buildings. Illustration. The Leeds and Selby Railway Company, bought of one Hall, the right to make a tunnel through a certain portion of Hall's land ; the right to dig for minerals in the land, through which the tunnel was to go, being reserved to Hall. Hall sold his land to Crossland, who proceeded to work the minerals; but, on its appearing that such working would he dangerous to the tunnel, the North Eastern Railway Company, who had purchased the Leeds and Selby line, obtained an injunction against Crossland, restraining him from digging for minerals ; as it was not com- petent for the vendor so to use his land as to destroy {a) Davies v. Sear, L. E. 7 Eq. 427 ; see Roe v. Siddons, 22 Q. B. B. 224 (C. A.). SERVITUDES. 187 the object for which alone the sale of the land was made. (J) (iv) Where a man has built houses alongside of each other, or one upon another, so that each house requires, and receives, the support of the house next to, or below, it ; and parts with the possession of each of the houses to different persons ; each adjoining, or each super-imposed house, has an impHed right of support from the next adjoining, or subjacent, house. Illustndion. HalHday sold two houses, Nos. 5 & 6, in the same street, the one to Richards, and the other to Rose. Rose in executing some necessary work to the drains of her house caused a settlement in the wall of Richards' house. In an action by Richards it was held, that where houses were so erected as to require mutual support, there is, by implied grant or reservation, a right in each house to such mutual support, (c) o. A LOST GRANT. That is to say, when the use has been enjoyed " from time immemorial," the law presumes that a grant has been made at some remote period, of which all trace has disappeared. § In order to support a clahn to a lost grant it is essential that (i) The enjoyment should have been exercised notoriously. Illustration. Solomon owned Nos. 2 & 3, Pilgrim Street, Ludgate Hill. No. 1 belonged to Sir John Prior : next to No. 1 came a corner house, No. 13, Broadway, belonging to the Vintners' Company. Pilgrim Street sloped towards the junction with Broadway ; and for 30 years Nos. 1, (6) North^E astern Railway Company v. Orossland, .32 L. J. Cli. 358. (c) Richards v. Rose, 9 Ex. 221 ; see Dalton v. Angus, 6 App. Cas. 740 ; Tone v. Preston, 24 Cli. D. 739. 188 EUBEIC OP THE COMMON LAW. 2 & 3 had been out of the perpendicular ; No. 3 appearing to lean on l^To. 2 ; No. 2 on 'No. 1 ; and No. 1 on No. 13, Broadway. The Vintners' Company pulled down No, 13, Broadway, the result of which was, that Sir John Prior's house fell ; and also the two houses of Solomon. In an action by Solomon against the Vintners' Com- pany it was held, that no grant could be presumed in favour of the plaintiff's houses; for a claim as of right must not be acquired by stealth ; and here, though a guess might have been made, there could have been no certain knowledge by the defendants that the plaintiff's house was being supported by them.(a) (ii) Adversely, as a matter of riffht. Illustration. Tickle claimed a right of way over certain land of Brown, and sent his servants across the land with a horse. Brown forcibly prevented the passage of the servant. In an ' action brought by Tickle for the trespass, and alleging a right of way, the defendant sought to give evidence at the trial that the land was from time to time under tillage, and that permission was from time to time given to parties desirous to cross Brown's land, in order to show that the user of the land was not " of right," but under leave given. It was held by the court that such evidence was clearly admissible to show the absence of the right.(&) (iii) Exercised vrith the knowledge of the owner of the servient tenement. Illustration. Daniel occupied a house in Stockport, ' (a) Solomon v. Tlie Vintner^ Company, 28 L. J. Ex. ,370. (6) Tickle v. Broimi, 4 A. & E. 369. SERVITUDES. 199 and threw out windows therein in 1787, overlooking a low adjoining building, in the occupation of one Ashgrove as tenant to Sir G. "Warrender. After the lapse of more than twenty years, North, Ashgrove's successor, raised this low building so as to block Daniels' windows. In an action by Daniels for the obstruction to his lights, no evidence was given at the trial that Daniels had enjoyed the access of the light during the twenty years with the knowledge of the reversioner, Sir G. Warrender, and the court held that in the absence of such evidence there could be no presumption of a grant of the light against the party capable of making the grant, (c) [As to the acquisition of the right to the enjoy- ment of light under the Prescription Act, see post, p. 192.1 (iv) The enjoyment should have been continuous. Illustration. Onley owned two closes, the " CHck Head Meadow" and the "Eock Hill Colts." Gardiner owned an adjoining close called the " CHck Head Coppice." He claimed a right of way for twenty years from his own close over Onley's two closes to the high road. It was proved at the trial that the " Click Head Coppice " had, about forty years before action, been a hopyard ; and that the hops and hop-poles used to be carried, from time to time, from the yard to the high road, across the two closes. It was also proved that at a time, some fifteen years before action, all the three closes had been in possession of the same owner. The court accordingly held, that as during the time of unity of possession there was no person who could complain of the user of the right of way, there was no (c) Daniel v. North, 11 East, 372. 190 EUBBIO or THE COMMON LAW. continuous adverse user, as of right; and that no grant could therefore be presumed.(a) (v) Uninterrupted. [Interruptions are usually either of a physical character, as the erection or closing of a gate ; or a prohibition of the user, acquiesced in. For such an interruption as will defeat a claim to a right of way under the Prescription Act, see post, p. 195.] (vi) The user must have been capable of interruption. [llustration. Webb owned a windmill, and Bird built a school-house and premises on the west side of the mill, which obstructed the currents of air blowing from the west towards Webb's mill. He sued Bird for obstructing these currents of air, to which he claimed a right of user for twenty years. The court held, that no such claim could be supported, as it was impossible for the adjoin- ing owner, over whose land the right to have the passage of the air was claimed, to use any means of interruption, whereby he could prevent Webb from acquiring a right by user. (6) (vii) The enjoyment has been " from time immemorial." [Note. This is professedly a period extending from the beginning of the reign of Richard I., A.D. 1189. But in practice the judges have directed juries to presume " immemorial usage," if the user is shewn to have existed for tioenty years before action.] § Evidence rehntting the presumption of a grant can he given by shewing that no grant could ever have been made. JMiistratioii. Barker had a house at Norwich, the win- (a) OnUy v. Gardiner, 4 M. & W. 496. (6) Webb v. Bird, 10 C. B. K S. 268. Sbevitudjis. 191 dows of which had for more than twenty years over- looked some glebe land belonging to the rectory of St. Edmund. Six years before action the rector had, with the consent of the bishop, conveyed the land to Richardson, who built on the land, and obstructed Barker's windows. It was held that the enjoyment for twenty years could not in this case give a right to the user of the light, as there was no one during the time capable of making a grant, the rector for the time being being only a tenant for Hfe, and so no grant could be presumed. (c) 4. The Prescription Act, 18S2,(d) which was passed in order to give the sanction of the legislature to the practice of the judges mentioned above (p. 190 (vii), note). § T/w effect of the .Prescription Act is — (i) That " time immemorial " is cut down. ("•) In the cases of profits a prendre, appurtenant and appendent ; To thirty years, (e) (^•) In the cases of rights of way, and watercourse, and of easements, ejusdem generis^. (/) To twenty years. (^) (ii) An absolute right is given, on proof of actual enjoyment (unless a license, in writing, for the user is shewn). ("•) In the case of profits a prendre, appurtenant and appendent ; For sixty years. (A) (^•) In the case of rights of way, and watercourse, (c) Barker v. Richardson, 4 B. & Aid. 579. (d) 2 & 3 Will. 4, c. 71. («) Ibid., s. 1 and preamble. (/) See Webb v. Bird, 10 C. B. N. S. 268 ; 13 0. B. N, S. 841. {g) 2 & 3 Will. 4, c. 71, preamble and s. 2, (h) Ihid., s. 1. 192 BUBEIO OP THE COMMON LAW. and of easements ejusdem generis (except the use of light); For forty years. (a) (r-) In the case of the use of light; For twenty years. (&) (iii) The Prescription Act applies only when the claim is made,(c) (a-) By custom. (^.) By prescription, (r-) By grant. ( ^■) As accessorial to the use and enjoyment of land. [Note. Subject to the atove, all the essentials to a claim by prescription at common law (that is, by virtue of a lost grant) must exist, for the support of a claim under the Prescription Act (see ante, p. 187), with the exception of a claim to the user of light, which need not be made " as of right."(<^)] 5. By custom. The privilege of going upon the land of another under a custom must be claimed, not through any individual right, but as a member of a particular class of persons. § The custom must be — (i) Certain, (ii) Reasonable. (iii) Claimed as of right. (iv) From time immemorial. (v) By a particular class of persons. Illustration. Tyson occupied certain waste land of the Manor of Westward, in Cumberland; on which, twice in the year, was held a fair. At the (a) 2 & 3 Will. 4, c. 71, s. 2. (b) Ibid., s. 3. (c) 2 & 3 Will. 4, c. 71 : see Tilbury v. Silva, 45 Ch. D. 99 (C. A,J, (d) Truscott v. The Merchant Taylors' Company, 11 Ex. 855. SEEVITUBES. 193 time of the fair Smith, a victualler, claimed by virtue of an ancient custom in favour of victuallers to erect a booth, stall, and other things on Tyson's land, paying 2d. to the lord. Tyson brought an action of trespass against him ; and Smith pleaded the custom as a defence. The court held it a good custom, (e) [Note. -^ profit a prendre lies only in grant ; and cannot be claimed by custom, in favour of a particular class of persons, as the right cannot vest in a fluctuating body. Unless the right is claimed by virtue of a grant from the Crown. In which case the law will presume that the Crown formed the particular class into a corporation, for the purpose of receiving the grant. Illustration. A grant from the Crown by charter (which was lost, but of the original existence of which it was alleged on the argument there was evidence,) to the in- habitants of Loughton, in Essex, a Crown manor, that the poor people inhabiting the parish, and having families, might, during a certain period every year, cut or lop the boughs and branches, above seven feet from the ground, on the trees growing on the waste lands of the manor and parish of Loughton, for their own use and consmnp- tion, and for sale, for their own relief, to all or any of the inhabitants for their consumption within the parish as fuel, was held to be valid. (/) (c) Tyson v. Smith, 6 Ad. & E. 745. (/) Willingale v. Maitland, L. R. 3 Eq. 103. 194 EUBBIC OF THE COMMON LAW. § Exceptions — (i) Rights of common, claimed by the copyhold or customary tenants of a manor over the lord's demesne, on the condition of rendering certain services, (ii) Stannary rights in Cornwall by which tin- bounders are entitled to dig for tin on the lord's waste, on payment of a small royalty i| Conventional i^brvitudes are extinguished. 1 • By unity of ownership, the lesser right being merged in the greater, (a) ^- By release under seal. ■n. By an act of notorious abandonment. niustration. Moore had a house, yard, and garden at Eipley in Derbyshire. At the end of the garden and abutting on land of Rawson, there had formerly been a weaver's shop with an ancient window overlooking Rawson's land ; and seventeen years before action Moore had pulled this building down, and built a stable on the site of it, with a blank wall where the ancient window used to be. Three years before action Eawson erected a building next to this blank wall; and Moore then opened a window in the blank wall where the ancient window used to be ; and sued Rawson for obstructing his ancient light. It was held that Moore had by his conduct evinced an intention of not resuming the right, which he had ceased to enjoy ; and that he must be taken to have abandoned it. (6) 4. By forfeiture, if the right is held conditionally, and the condition is broken. (a) Surrey v. Piggot, Palmer, 444. (6) Moore v. Bawson, 3 B. & 0. ,332. SERVITUDES. 195 Illustration. Cawkwell had an undisputed right to pour his surface water into Russell's drain. He chose also to conduct into it the foul water from his privies. Eussell upon this cut off the connection with his drain altogether. In an action by Cawkwell it was held that the defendant was entitled to prevent the plaintiff from using the drain at all, so long as he continued to pour foul water into it.(c) 0. By an interruption(c?) where the claim is grounded on enjoy- ment under the Prescription Act. [e) (i) For one year ; (ii) Acquiesced in or submitted to ; (iii) After notice. [Note. In order to rebut evidence of submission, it is enough to show that the party interrupted has in a reasonable manner communicated to the party causing the interruption that he does not really submit to, or acquiesce in, it.(/)i (e) CauJcwell v. Russell, 26 L. J. Ex. 34. \d) [Note. Strictly speaking, an " interruption '' of the above character is only an answer to a claim imder the Prescription Act. But substantially a bond fide right claimable under the Prescription Act which has been thus " inter- rupted " becomes absolutely extinguished.] (e) 2 & 3 Will. 4, c. 71, s. 4. (/) Glover v. Gole-man, L. R 10 0. P. 108. O 2 196 EUBEIO 01' THE COMMON LAW. CHAPTEE II. WASTE. Waste (yastum) is lasting damage done to corporeal heredita- ments to the injury of the remainderman or the reversioner. J . Commisdve waste is the doing of active, wilful damage to the premises, as by pulling down a house, opening hitherto unbroken ground for clay, gravel, minerals, and the like. 2. Permissive waste is where premises are allowed to fall out of repair without any effort being made to retard their deterioration. Peksons liable for waste (both commissive and per- missive). (i) Tenant by the courtesy. (a) (ii) Tenant in dower, (a) (iii) Guardians, (a) (iv) Tenant for life.(6) (v) Tenant ;pur autre vie.Q)) (vi) Tenant for years. (6) (vii) Assignee of tenant for life or years, (c) [Note. The reason tenants for life, autre vie, and years were not liable for waste at common law was that their interest is created by their grantor, who, if he had chosen, could have protected the reversion by the terms of the grant, and the (a) By the Common Law. (t) By the Statute of Marlbridge, 6 Ed. 1, c. 5. (c) Cro. EKz. 683. WASTE. 197 common law only gave a remedy where the estate was conferred on the tenant by the act of the law itself.] 3. Equitable waste. Where the grant is made " without im- peachment for waste ; " that is, where the grantor has in terms excepted the tenant from the statutory liability, the court will still restrain the tenant from doing acts of wanton and malicious waste to the premises. Illustration. Lord Barnard, tenant for Hfe of a settled estate sans waste, having quarrelled with his eldest son, got 200 workmen together, and of a sudden, in a few days, stripped Eaby Castle of the lead, iron, glass- doors, and boards, &c., &c., to the value of £3,000. The court, upon the filing of a bill by the son, granted an injunction. (<^) § Fixtures. If a tenant for life, or for years, removes fixtures to which he has no right, an act of waste is committed. I. Landlord's Fixtures. 1. Those upon the premises at the time of the demise. 2. Those erected by the landlord during the demise. 3. Those so erected by the tenant during the demise, as to become part of the freehold. II. Tenant's Fixtures. 1. Those which have been erected by the tenant, (i) For purposes of trade. Examples — («•) " Mules " screwed into the floor.(e) (^•) Barns, granaries, sheds, mills, resting on pattens, plates, brickwork, but not let into and united with the soil.(/} ( T-) Vats resting on brickwork and timber. (^) {d) Lord Vane v. Lord Barnard, 2 Vem. 739. (e) Hellawell v. Eastwood, 6 Ex. 312. (/) Huntley v. Russell, 13 Q. B. 572. (g) Horn v. Baker, 9 East, 215. 198 BUBBIO OF THE COMMON LAW. ( 3.) Iron saltpans, let into a brick floor, -with furnaces under tliem.(a) ( ,.) A steam engine for working a colliery.(&) ( f .) Brewing vessels, and the pipes in the walls connected therewith.(6) (ii) For ornament or convenience. Examples — (a.) Hangings and pier glasses.(c) (^_ ) Cornices. (^) . (y.) Ornamental chimney pieces.(e) ( b.) Wainscot fixed to the wall by screws.(J) («■) Grates, ranges, and stoves. (/) (?. ) Pumps.Cgr) (i/.) Bookcases and cupboards screwed to the walls. (A) ( 0.) Furnaces and coppers.(z') 2. Farm buildings, engines, and machinery, which have been erected by the tenant, (i) For agricultural purposes, (ii) For purposes of trade and agriculture, (iii) After notice in writing to the landlord. Provided — (a. ■) The severance does not materially injure the freehold. (/3) A month's notice to elect to purchase is given to the landlord. (A) (a) Lawton v. Salmon, 3 Atk. 15to. (6) Lawton v. Lawton, 3 Atk. 3. (c) Beeh v. Bebow, 1 Ps. Williams, 94. (cl) Avery v. Oheslyn, 3 A. & E. 75. (e) Bishop v. Elliot, 11 Ex. 115. (/) Lee v. Risdon, 7 Taunt. 191. (g) Grymes v. Boweren, 6 Bing. 437. (h) Birch v. Dawson, 2 A. & E. 37. (i) Squier v. Mayer, 2 Freem. 249. ik) 14 & 15 Vict. 0. 35, s. 3. WASTE. 199 ;H. Engines, machinery, and other fixtures, affixed hy a tenant to his holding, erected under a tenancy to which tlie Agricultural Holdings Act, 1883, applies.il) Provided — (i) All obligations to the lessor have been per- formed by the tenant ; (ii) No avoidable damage is done ; (i\\) AH damage occasioned by the removal is made good ; (iv) One month's notice in writing is given to the lessor, to elect to purchase the fixtures ; (v) That, in the case of a steam engine, prior to its erection, (a ) The tenant had given notice in writing to his lessor, of his intention to erect it ; (/ii-) The lessor had not objected to its erec- tion by a notice in writing. (Z) The right of removal is a question which arises between 1. The heir and the executor of the tenant for life ; 2. The remainderman and the executor of the tenant for Hfe; 3. Landlord and tenant. [Note. § The general rule is, that whatever has once been affixed to the freehold cannot be severed there- from, (m) § This rule has, from time to time, been relaxed ; especially between landlord and tenant. § The law shows a less degree of favour to the freeholder in the 3rd class than in the 2nd ; and in the 2nd than in the 1st. (0 46 & 47 Vict. c. 61, s. 34. (tti) As to recent decisions on fixtures, see Clarke v. Millwall Dock Oompany, 17 Q. B. D. 494 (C. A.) ; Sheffield Permanent Building Society v. Harrison, 15 Q. B. D. 358. 200 EUBEIO OV THE COMMON LAW. § The relaxation has been made principally in favour of articles erected by the tenant for trade purposes ; and has been extended to articles of ornament, which can be severed -without materially injuring the freehold.] § The right of removal exists only during the continuance of the term, and until the tenant gives up possession ; upon which a presumption of law arises that they are a gift in law to the reversioner. (a) (a) Penton v. Robart, 2 East, 88. TRESPASS TO LAND. 201 CHAPTER III. TRESPASS TO LAND. § A TKESPASS TO LAND is Committed where one enters upon land in the occupation or possession of another without lawful excuse. § An entry will have been made, and a trespass committed, !• If a man walk upon the land. 2. If he throws stones, rubbish, &c., upon it.(&) 3. If he allow water, filth, &c., to be discharged thereon.(6) 4. If he suffers his cattle, poultry, or domestic animals to go thereon 5. If he shoots across the land.(c) § Lawful excuses. 1. Where the entry is made with the leave of the occupier. [Note. Where the license or other lawful excuse is departed from, a trespass will have been committed ab initio.(£^) Illustration. Watts was baihff to Lord Dartmouth (Lord of the manor of A.), and impounded a horse, which was an estray. After impounding the horse he worked it, which was admittedly an unlawful act. It was held that he was a trespasser ah initio.(e)] 2. Where made upon unenclosed land adjoining a high- (b) Reynolds v. Clarke, 22 Eaym. 1399. (c) Pickering v. Rudd, 1 Stark. 56; see Kenyan v. Hart, 34 L. J. M. C; Judgment of Blackburn, J., at p. 87. (i) See the Six Carpenters' Case, 1 Sm. L. C, 7tli ed. vol. 1, p. 133. (e) Oxley v. Watt, 1 T. E. 12. 202 EURRIC OF THE COMMON LAW. way, in order to drive o£P cattle, freshly straying thereon. (a) 3. Where made to recover chattels, improperly removed thither, by the owner of the land. (6) 4. Where made in order (i") To escape pressing danger. (c) (ii) To prevent a muvder.(d) (iii) To make an arrest for felony, (e) 5. To abate a nuisance, after previous notice, and request that it be abated. Illustration. Davies encroached on a common in Cardiganshire, called Mynydd Pencarreg, by erecting a house, and making an enclosure upon it. Williams, who had rights of common over this waste, gave him notice to remove it ; and on his refusing to do so, pulled it down. It was held that he was entitled to act as he had done.(/) 6. Where made in the exercise of a right, as in the user of an easement. § For damage done by rioters to buildings and machinery com- pensation is awarded by the police authority of the district where the destruction took place. If the claimant is dis- satisfied with such award, he can bring an action against the police authority, provided that if the amount claimed is under £100 the action must be brought in the county court. (^) § Remedy where animals ok chattels are trespassing " damage feasant." The occupier of the land may seize and impound, until fair (a) Goodwin v. Clieveley, 4 H. & N. 631. (b) 2 Boll. Abr. 565, pi. 9. (c) 37 Hen. 6, 37, pi. 26. id) 2 B. & P. 260. (e) Smith V. Shirley, 3 C. B. 142. (/) Davies v. Williams, 16 Q. B. 556. (g) Riot (Damages) Act, 1886, 49 & 50 Vict. c. 38, ss. 3 and 4. TRESPASS TO LAND. 203 compensation be tendered or paid, all animals and chattels 1. Unlawfully upon his land ; and 2. Doing damage to his land at the time of seizure. Provided they are not, at the time, under the immediate personal control of their owner, or his servants. Illustration. Field drove a cart and horses across the land of Adames. Whereupon Adames and his servants distrained the horses, cart, and harness, damage feasant, in spite of resistance on the part of Field. Field sued them for the assault, which the defendants justified as being necessary to the exercise of Adames' right of distraint. But the court held that as the chattels in question were at the time under Field's per- sonal care, Adames had no right to seize and impound them. (A) Duties of the distrainor. 1. He may not sell the distraint (except as hereafter men- tioned). 2. He must, at his peril, provide a proper pound. 3. He must, under a penalty of £20, provide impounded animals with sufficient food and water. (e) 4. He may sell the distress in open market, to meet the expenses of providing the food and water and sale, rendering the balance to the owner of the animal. After (i) Seven clear days have elapsed. (ii) Three days' public printed notice has been given. (A) Qi) Field v. Adames, 12 Ad. & E. 649. (i) 12 & 13 Vict. 0. 92, s. 5. (k) 17 & 18 Vict. c. 60, s. 1. 204 RUBRIC OF THE COMMON LAW. PAET II. OF BREACHES OF DUTY BY THE OWNERS AND OOOUPIEES OE LAND. CHAPTER I. NUISANCES. § A NUISANCE (nuire, to hurt) is a thing maintained upon the land of one, which causes injury or annoyance to the person or property of another. (a) 1. 27ie occupier is prima facie liable. 2. TJie owner is also liable if, (i) He buys the reversion of, or (ii) Demises premises with an existing nuisance thereon. § There is nothing unlawful in a man keeping a dangerous thing on his premises, but the moment it does injury to another it becomes a nuisance ; although the owner has been guilty of no neghgence in the keeping of it. Illustration. Fletcher was the owner of certain coal mines, called the Red House Colliery, which he worked until he reached certain disused shafts reaching verti- cally to the surface of the soil. These shafts had been filled up with rubble and marl. Bylands, who occu- pied the surface, constructed a reservoir thereon, in the site of which the upper ends of these vertical shafts (a) See Tod-Heathy v. Benham, 40 Ch. D. 80 (C. A.) ; Dixon v. Metropolitan Board of Worlcs, 7 Q.B. D. 418. NTJISANOES. 205 were met with. There was 11,0 charge of neghgence in the construction of the reservoir. When the reservoir was filled, the water burst through these old shafts, and flooded Fletcher's mine. In an action by the latter, it was held that Rylands was Hable, as he had collected a dangerous thing upon his premises, and was hound at his peril to keep it from becoming injurious. (&) [Note. A nuisance may, of course, be caused by negli- gence, but it may exist without negligence, j § The extent of the " annoyance,^^ to be actionable, must amount to the materially interfering with the ordinary physical comfort of human existence, reference being had to the character of the neighbourhood.(<;) For instance. Annoyance from smoke in the open country might amount to a nuisance ; while the same thing at Shields, where the quantity of smoke in the atmosphere would at all times be considerable, might be none at aU.(^) § Examples of nuisances. I. Resulting from Acts of Commission. 1. The carrying on an offensive, noisome, or noisy trade. Illustration. Selfe, a brickmaker, occupied a strip of land on Surbiton Hill, where he burnt bricks in clamps. The vapours and smells arising there- from came upon the garden and pleasure-ground of Walter (which adjoined Selfe's land), and pol- luted the air. Walter applied for an injunction to restrain Selfe from committing this nuisance, and the injunction was granted.(e) (J) Fletcher v. Rylands, L. E. 3 H. L. 330. (c) Walter V. Selfe, 4 De G. & Sm. 323 ; Robinson v. Kilvert, 41 Ch. D. 88 (C. A.) ; Bamford v. Turnley, 31 L. J. Q. B. 286. (d) Cf. Lord (Jranworth, St. Helen's Smelting Comimnti y.. Tipping^ 11 H. L. C. 653. (e) Walter v. Selfe, 4 De G. & Sm. 323. 206 EUBRIO 01? THE COMMON LAW. ^- The collecting of a crowd to the annoyance of a neigh- bourhood. Illustration. Brewster, the proprietor of a music- hajl, hired a house and grounds near Wolver- hampton, called Waterloo House, for two years, and held there " a monster fete " every Monday and Friday, with music, dancing, and fireworks, which brought together a great crowd of noisy and dis- orderly people. On a bill being filed by the owner of an adjoining house, an injunction, restraining the nuisance, was granted, (a) 3. The making of great and unjustifiable noises in the night-time. Illustration. Smith was convicted on an indictment and fined £5 for making great noises in the night with a speaking-trumpet, to the disturbance of the neighbourhood. (5) [Note. _A. nuisance by noise is emphatically one of degree.(c)] 4. The obstructing of a thoroughfare. Illustration. James set up an open gate, upon hinges, across a highway. Hayward, one of the public, who was obstructed by it, broke it down. James sued him in trespass for damaging the gate. It was held that the gate was a common nuisance, and Hayward was justified in remo-\nng the obstruction, (c?) [NoTK. To entitle a person to bring an action for an obstruction on a highway, he must show that he has sustained a particular, direct, and sub- (a) Walker v. Brewster, L. R. 5 Eq. 25. (6) Bex V. Smith, 1 Str. 704. (c) Jenkins v. Jackson, 40 Oh. D. 71. (d) James v. Hayward, Cro. Car. 184. NUISANCES. 207 stanti.il injury beyond that which is done to the public.(e)] II. Resulting from Acts of Omission. 1. The stoppage of drains and watercourses, through failure to clean out and repair them. '2. The keeping of a dangerous place unfeneed upon pre- mises on which persons are invited to come on lawful business. Illvstration. Indermaur, a journeyman gas-fitter, was sent by his employer to work upon a contract with Dames, a sugar refiner, upon Dames' pre- mises. On the first floor was a hole, or shoot, used for lowering goods. It was unfeneed, and Indermaur, crossing the floor, in ignorance of the danger, fell through the hole and fractured his spine. In an action against Dames, it was held that there was an obligation to fence the hole for the protection of strangers coming on the premises upon lawful business. (./) [Note. This obligation subsists in favour of strangers coming upon lawful business, hut does not extend to a bare licensee. I Uiislratinn. Southcote went to stay at Stanley's hotel as a visitor, and in leaving the hotel had to pass through a glass-door. A large piece of glass in the door was loose, and fell upon and injured him. In an action by Southcote, it was held that a visitor in a house was in the same position as a servant or other member of the household ; and that there was no obligation upon Stanley to guard him («) Winterbottom v. Earl Derby, L. K. 2 Ex. 316 ; Benjamin v. Stoiue, L. E. 9 C. P. 400 ; 43 L. J. C. P. 162. (/; Indermaur v. Dames, L. E. 1 C. P. 274. 208 EUBEIO OF THE COMMON LAW. from the consequences of a mere act of omis- sion.(a) J ;-l. The suffering to escape any dangerous thing, or animal, which has been lawfully brought on the premises. (i) Creatures naturally mischievous, like a rattle- snake, are kept by the owner at his peril. (ii) Creatures not naturally mischievous, like dogs and horses, are not kept at the owner's peril, Unlet!!' he has notice that they are of a mis- chievous disposition. (&) 4. To gather together in one spot patients suffering from infectious diseases without using such safeguards as not to endanger the public health by communicating the infectious disease, (c) § A NUISANCE MAY BE — I. Public. § Rembpies — (i) Injunction, (ii) Indictment. § Characteristics — (i) It cannot become lawful by user for any length of (ii) It cannot be abated by, and (iii) Is not actionable at the suit of a private individual, Unless he has suffered some particular damage beyond what is common to others. For instance. If Jones digs a hole in a pubhc thoroughfare, he may be indicted for the nuisance, but an action will not He against him. But if Smith falls into the hole and breaks his leg. Smith will at once be able to maintain an action against him. (a) Southcote v. Stanley, 1 H. & N. 247. (6) May v. Burdett, 9 Q. B. 110. (c) Metropolitan Asylum District v. Hill, 6 App. Gas. 193. (d) B. V. Gross, 3 Camp. 227. NTIISANC'ES. 209 IL Private. § Remedies — (i) Injiinction. (ii) Action. § Characteeistics — (i) It becomes lawful after exercise for twenty years without interruption, (e) (ii) It is actionable at the suit of the party injured, (m) It may be abated by the party injured after notice and request to abate the nuisance given to the wrongdoer. It is no answer to an action for a nuisance to say — 1. That the nuisance was maintained in a suitable and con- venient place. Ilhistration. Turnley, who had purchased some building land at Norwood, proceeded to burn bricks thereon ; the smoke and smell of which caused great annoyance to his adjoining neighbour, Bamford. In an action by the latter, Turnley raised as a defence that the nuisance was committed on a proper and convenient spot ; but the court held that this was no answer.f/) 2. That it is for the benefit of the public. Illustration, Potter had some cotton-printing works on the Glossop brook. From lower down the stream, at "Nag's Pool," the Stockport Waterworks Company drew their water for the supply of Stockport. They complained that Potter's works defiled the stream, and in an action by them, Potter, amdngst other defences, pleaded that his trade was carried on for purposes necessary and useful to the community. It was held to bo no defence. (//) (e) Elliotson v. Feetham, 2 Bing. N. C. 134. (/) Bamford v. Turnley, .31 L. J. Q. B. 286. ((/) Stockport IVciterworks Company v. Potter, 31 L. J Ex. 9. P 210 EUBEIO OF THE COMMON LAW. 3. That the party injured has come to the nuisance. Illustration. Sir Henry de Hoghton had an estate near St. Helen's. In 1859 he sold a portion to the St. Helen's Smelting Company, who there erected copper works. In 1860 he sold another portion, called Bold Hall, to Tipping. It was not denied that before pur- chasing Tipping had notice of the existence of the copper works. Shortly afterwards Tipping applied for an injunction against the company, having already recovered substantial damage in an action at law, for injury done to his land by the smoke from the works. The defendants contended that the plaintiff, having come to the nuisance, was not entitled to rehef in equity. But the court granted the injunction (a). (a) Tipping v. St. Helen's Smelting Gompamj, L. R. 1 Ch. C6. OF THE NEGLIGENT USE OF REAL PROPERTY. 211 CHAPTER II. OF THE NEGLIGENT USE OF REAL PROPERTY. § Where one man, by want of proper care in tlie management of his land, or the buildings thereon, causes injury to the person or property (real or personal) of another, he is liable in damages to that other. For example — 1. Where he overloads the floor of a warehouse, so that the floor falls on, and damages the goods of another, which are in the room beneath. (6) 2. Where he makes an excavation in his land without due care, which causes a building on adjoining land to fall.(c) 3. Where a railway company leave open their gates on a level crossing, through which cattle stray on to the hne, and are injured, (t^) Unless the party injured was himself negligent, and by his own conduct contributed towards the happening of the mischief [see post. Part IV. Chap. I.]. § FiEE. At common law, every person who lights a fire on his own premises is responsible for its safe keeping. Unless. 1. The fire is spread by the act of God. 2. The fire begins accidentally. {e) (b) Edwards v. Ualinder, Popli. 46. (c) Trower v. Chadwick, 3 Sc. 722. (d) Fawcett v. Midland Bailu-aij Company, 16 Q. B. 618. (f) 12 Geo. 3, c. 73, s. 37 ; 14 Geo. 3, c. 78, s. 86. P 2 212 BUBRIC OP THE COMMON LAW. [Note. Accidentally means — (i) Originating through mere chance, and without neghgence ; or (ii) The cause of which cannot be traced. (a)] [As to the spreading of fires from locomotive engines, &c., see post, Part VII.] (a) Pilliterx. Plwppard, 11 Q. B. 357. TEESPASS AND CONVEESION. 213 PART III. OP THE INFRINGEMENT OF THE EIGHTS OF OWNERS OF CHATTELS. CHAPTER I. TRESPASS AND CONVERSION. I. Trespass to chattels is the wrongful intermeddling with the goods of another, to which that other has a present right of possession. Ilhistration. Upon the Custom House Quay there was a hut, in which certain porters each had a box, where they could deposit parcels, until a ship was ready to receive them. Bushell, a porter, put in certain goods, and so deposited them as to block the opening of the box of Miller, another porter. Miller, in order to get at his box, moved Bushell's parcel about a yard to- wards the door, and did not replace it. The goods in consequence were lost. Bushell sued Miller for a con- version of the goods. But the court held that there was no conversion, though if he had brought trespass he might have recovered. (6) II. ('on VERSION is the unauthorized disposal of the chattels of another, by which that other, having a present right to them, is deprived of the same. § Such unauthorized disposal may be exercised by — 1. The taking or using the chattels. (6) Bushell V. Miller, 1 Str. 128. 214 EUBEIO or THE COMMON LAW. (i) For the benefit of the wrongdoer himself, (ii) For the benefit of a third person. Illustration. One H. K. Bailey, falsely pretend- ing that he was buying for one Seddon, obtained from Fowler & (Jo. delivery of thirteen bales of cotton, of the valne of £244 19s. U. Bailey sold the cotton to and received the price from Hollins & Co., cotton brokers, who sold it to NichoUs & Co., by whom the cotton was spun into yarn. On discovering the fraud of Bailey, Fowler & Co. sued Hollins & Co. in trover for the cotton, and the court held that they were liable for the conversion. (a) 2. By the consumption, destruction, or material altera- tion of the chattel. Illustration. Atkinson drew some of the contents out of a vessel containing liquor, the property of llichardson, and filled it up with water. In an action of trover it was held that this was a con- version of all the contents of the vessel. (i) 3. By an unqualified refusal to dehver up, after demand, what has lawfully come into the possession of the wrongdoer. Illustration. Baldwin was a journeyman carpenter, who was sent by his master to work for liire in the Queen's yard. On his declining to go to work any longer, the surveyor of the works re- fused to allow him to remove his tools, pretending a usage to detain them, to enforce workmen to continue until the Queen's work was done. In an action of trover for the tools, this was held to be an act of conversion. (c) («) Fowler v. Hollins, L. R. 7 Q. B. 616. (b) Richardson v. Atkinson, 1 Str. 576. (c) Baldamnw. CoZe,6.Mod. Eefi, 212. TRESPASS AND CONVBESION. 215 4. By exercising a dominion over the goods, which is inconsistent with the dominion of the owner at all times and places. Illustration. Hiort & Co., of Hull, corn merchants, were in the habit of employing one Grimmett as their broker. Grimmett, with a view to commit a fraud, directed Hiort & Co. to send to Bott, of Birmingham, a delivery order for certain barley (which he pretended to have sold to Bott), making the barley deliverable to the order of the con- signor, or the consignee, and to forward the barley by the London and North-Western Railway. Hiort & Co. followed their broker's directions ; and the latter then went to Bott, and told him that the delivery order had been sent to him by mistake, and induced him to indorse it to him, Grimmett, Hiort & Co.'s agent, " in order to save expense," Bott believing he was taking the best step to secure a return of the barley to Hiort & Co. Grimmett then obtained delivery of the barley, sold it, and absconded. In an action of trover for the barley by Hiort & Co., against Bott, the court held that there had been a conver- sion by the latter, and that he was Hable for the value of the barley, {d) § The act of conversion cannot be purged. lUnstration. Hiort & Co. from time to time forwarded large quantities of grain by the London and North- Western Railway to their own order at the company's goods station at Birmingham. On 24th November, 1872, the company received a delivery order of Hiort & Co. for sixty quarters of oats in favour of George Tarpler's order. Tarpler had indorsed it in favour of George (d) lliort V. BM, L. K. 9 Ex. 86. 21G EtTBETC ■Of THE COMMON LAW. Grimmetfc. On November 22nd, 1872, two days before,, 'Grimmett had fraudulently induced the company to deliver to him sixty quarters of oats, which ho liad Realised, The company, therefore, though thoy had improperly delivered tlic sixty quarters of oats to Grinimctt on the 22nd, ^vould in two days' time have been bound to do that -wry tiling- on the receipt of the delivery order ; and Hiort & Co. suffered no damao-e. Tarpler was credited with the oats, but was unable to pay ; and Grimmett had absconded. Hiort & Co. accordingly sued the company for a oon'N'ersion of the oats ; and the court held, that the right of action having once vested by reason of the pre-delivery, it could not be divested by the subsequent receipt of the deli\"ei-y order. But that the company \Aas liable for nominal , damages, (a) § TIw innocent finder of a chatiel is entitled to the possession of it against all the world, except the true owner ; and may sue in trover, if wrongfully deprived of it. Tllvstration. Armoury was a chimney-sweeper's boy, who found a jewel. He took it to Delamirie's (a gold- smith) shop to learn what it was, and handed it to an apprentice. The latter on jiretence of weighing it, took out the stones, and called to his master to tell the boy the value was lid. The boy refused the money, and demanded the jewel. The apprentice handed him the socket only. The boy brought an action of trover for the jewel ; and it was held that he was entitled to maintain it. (6) [XoTK. In order to maintain an action for a con- version, the plaintiff must have a right to the (a) Hiort v. London and North-JVestern Railvay Company, 4 Ex. D. 188. (i) Armoury v. Detamirie, 1 Str. 504. TRESPASS AND CONVERSION. 217 present possession of the goods, (c) A mere posses- sion is sufficient to support an action against a wrongdoer, (rf) ] (c) Bradley v. Copley, 1 C. B. 685 ; 14 L. J. C. P. 222. (d) Jeffries v. Gi-eat Western Railway Company, 25 L. J. Q. B. 107 ; 5 E. & B. 802. 21 S EUJ3EIC OF THE COMMON LAW. CHAPTER II. WRONGFUL DISTEESS. [For the nature of a distress, see ante, p. 171. J § A DISTRESS WILL BE WRONGFUL IN THE FOLLOWING CASES : — 1. Where there is no tenancy existing between the distrainor and the person whose goods are distrained. For instance. Where there has been a supposed tenancy, but the lessor has had no title to grant a lease. [Note. Or, at common law, when the term had ex- pired. But this was remedied by 8 Ann, c. 4, ss. 6, 7, under which the landlord is empowered, where a tenant is holding over, to distrain within six months of the expiration of the lease, for rent due before the end thereof.] 'I. Where there is no fixed and ascertained rent. 8. When the reversion is not in the distrainor. For example. If the original lessor has assigned his reversion, his right to distrain is gone. 4. If the landlord has already distrained for the same rent. Fnless — (i) He had at the tenants' request withdrawn from possession, (a) (ii) There has been some mistake as to the value of the things taken. (&) (iii) The distress has been rendered abortive through the tenant's threats, (c) (a) Worlaaton v. Stafford, 15 C. B. 278. (6) Hutchins v. Cliamhers, 1 Burr. 579. (c) Lee V. Oooke, 3 H. & N. 203. WRONGFUL DIKTEESS. 219 5. If no rent is due. [Note. In this case the landlord is liable to an action for double tlie value of the goods distrained. («?)] 6. Where there is a valid agreement not to distrain.(e) 7. Where the rent due has been tendered before the distress.(/) 8. If made on the day on wliich the rent is due.(^) 9. If the entry is made by forcing the outer door, or opening the window, (/t) 10. If made before sunrise, or after sunset, (z) 11. If made on land other than that from which the rent dis- trained for issues. Unless — (i) The goods have been fraudulently removed on to it, after the rent has become due, in order to defeat the distress. [Note. In which case the landlord may within thirty days follow and distrain the goods wherever they may be found. Provided they have not been bought by a honCi fide purchaser. (^) J [Note. In the MetropoHtan Police District, a constable may stop and detain vehicles, which he may find removing goods, under suspicious circumstances. Q~) ] (ii) Cattle are distrained, while lawfully depastured on common appendent, or appurtenant, (m) {d} 2- W. & M. e. b-, s. 5 . (e) Horsford v. Webster, 1 C. M. & R. 696. (/) Bffnnett v. Bayes, 5 H. & N. 391. (g) Duppa V. Mayo, I Saund. 287. (/i) J}/ash V. Lucas, L. R. 2 Q. B. 590. (i) Co. Litt. 142a. (ii;) 8 Ann, c. 14, s. 2 ; 11 Geo. 2, c. 19, s. 1. (0 2 & 3 Vict. c. 47,, s. 67. (m)ll Geo. 2, c. 19, s. a 220 KUBEIC OP THE COMMON LAW. (iii) Cattle are seen to be driven aS the demised pre- mises, in order to defeat the distress, (a) 12. Where the distress is unreasonable, or excessive.(&) 13. Where made in the king's highway, or in the common street, (f) 14. Where the chattels taken are not liable to distress, viz. : — (i) Tenants' fixtures, unless attached only by bolts and screws, ((Z) (for they are annexed to the freehold). (ii) Beasts, which profit the land. Provided that other distress can be found suffi- cient, (e) (iii) Implements of husbandry, or instruments used by a man in following his calling. Provided that other distress can be found suffi- cient. (/) (iv) Wearing apparel, and chattels in actual use (for the taking of them might lead to a breach of the peace).(/) (v) Perishable articles [for they cannot be returned in their original state to the owner ; and a distress is in the nature of a pledge.] (/) (vi) Growing trees, shrubs, plants, &c.(ff) [No'j'K. But growing crops ; and corn, straw and hay, which has been cut, may be distrained. (/t)] ( vii) Loose money [for it is impossible to ear-mark it] . (^iii) Title deeds [for they partake of the nature of the freehold]. (ix) Animals /ercB naturce.(^f) (a) Co. Litt. 161a. (6) 52 Hen. 3, c. 4. Statute of Marlbridge. (c) Ibid, c.,15. (d) Co. Litt. 476. (e) 51 Hen. 3, c. 4. (/) Co. Litt. 47a. (g) Clark v. Calvert, 3 Moore, 96. (7t) 11 Geo. 2, c. 19, s. 8. WRONGFUL DISTRESS. 221 (x) The goods of another left ex necessitate on the premises («■ ) In the ordinary course of trade ; or (P-) To be worked upon by the tenant, (e) (xi) The goods of a lodger, provided that the lodger has followed ont the provisions of the Lodgers Goods Protection Act, 1871.(^) (xii) The goods and beasts of a guest at an inn. (Z) (xiii) The goods of an ambassador, (m) (siv) Goods in custodid legis.(n) (xv) Railway rolHng stock, when on hire.(o) (xvi) Gas meters, belonging to a gas company incorpo- rated under an Act of Parliament, (js) [Subject to the above exceptions, all goods and animals found on the demised premises may be lawfully distrained, no matter to whom belonging.] Remedies. I. An action for trespass, and the conversion of the goods. II. An action for double the value of the goods distrained in cases where — 1. There is no rent in arrear, and 2. The goods distrained upon have been sold.(g') III. An action of replevin [^replegiare, to receive again on giving a pledge], where the tenant desires a return of the goods themselves. § This is an action to try the right to the goods, the tenant receiving them back, pendente lite, upon giving security for their value, and for costs. (i) Swire v. Leech, 18 C. B. N. S. 479 : Co. Litt. 47a. Qo) 34 & 35 Vict. c. 79. (l) Crazier v. TomKnson, 2 Ken. 439. (m) 7 Ann, c. 12, s. 3. (n) Wliarton v. Naylor, 12 Q. B. 673. (o) 35 & 36 Vict. c. 50, s. 3. {p) 10 & 11 Vict. c. 15, s. 14. ■ (2) 2 W. & M. c. 5, 8. 5. 222 ROB RIO OF THE COMMON LAW. [Note. The course of procedure in replevin is as follows: — The tenant at any time after seizure, and before the goods have been sold, may apply to the registrar of the county court of the district, in which the distress has been made, for the return of the goods taken. The registrar will then restore (replevy) them to him, upon the following terms :(a) 1 . That the replevisor (the tenant) will commence, and jirosecute, without delay, an action of replevin against the distrainor, to try the right to the goods. (i) If in the county court, within one month. (ii) If in the superior court, within one week. [Note. He is only entitled to sue in a superior court, if he has good grounds for believing — (a. ) That a question of title is involved. (/3. ) That the rent distrained for exceeded twenty pounds.] 2. That the replevisor shall, to the satisfaction of the registrar, give security, sufficient to cover the rent alleged to be due, and the costs of the action. 3. If he is unable to make out his claim, he shall return the goods.] § If upon the trial of the action the replevisor fails to make out his title to the goods, he will have to return them to the distrainor. § If he wins the action, he will [having already got possession of the goods], only be entitled to recover the expenses of the replevy. § Avowry and cognisance were, under the old system of pleading, the names of the pleas to a declaration in replevin, confessing and justifying the seizure. (a) As to proceedinss in replevin, see 51 & 52 Viet. e. 43 (County Courts Act, 1888), ss. 133—137. WEONGFUL DISTRESS. 223 1. The first pleaded by the landlord. 2. The second by the bailiff, who acted under his orders. IV. Summary proceedings within the metropolitan dis- trict (J)) niay be taken on summons before a stipendiary, where— 1. The tenancy is a weekly or a monthly one ; or 2. The rent does not exceed £15 per annum. § Who has jurisdiction — (i) To order the return of the distress, on payment of the rent due (if any) ; or (ii) If it has been sold, the return of its value, less any sum due for rent ; or (iii) In default of compliance, to impose a fine of not more than £15, to be paid by the landlord to the aggrieved tenant, (c) (J) The limits of the Metropolitan District are defined in the Schedule to 10 Geo. 4, c. 44. (c) 2 & .3 Vict. c. 71, s. 39. 224 EUBEIC OF THE COMMON LAW. PART IV. OJ)' BREACHES OF DUTY IN THE MANAGEMENT OF CHATTELS. CHAPTER I. OF THE NEGLIGENT USE OF CHATTELS. § Negligence. It is the duty of all persons to use reasonable care and skill in dealing with any chattel : and if one is negligent in his performance of this duty, and mischief or loss ensues to the person or property [ji'eal or per- sonall of another, he mil he answerable to that other in damages. (a) For example — 1. If Smith points a loaded gun, at full cock, towards Jones ; and the gun goes off, and wounds the latter ; 2. If on a dark night the servants of a railway com- pany pull up a train some yards short of the plat- form, and invite passengers to alight ; so that a passenger, alighting, is precipitated to the ground, and injured ; 3. If Brown drives a cart rapidly in a public street, and so knocks down and injures Robinson ; 4. If Green carries a plank so carelessly that he runs it through a plate-glass door ; 5. If Grey navigates a vessel so carelessly that it injures a pier or a landing stage ; 6. If Johnson insecurely leans a door against the wall of his house, and the door is blown down by the (a) A trespass to the person is not actionable if it be neither intentional nor the result of negligence : Stanley v. Powell (1891), 1 Q. B. 88. OF THE NEGLIGENT CTSE OF CHATTELS. 225 wind on to Williams, who happens to he passing hy and is thereby injured ; The party injured, whether in his person, or his property (real or personal), is entitled to compensation from the party guilty of the negligence. CoNTRiBUTOEY NEGLIGENCE. If, however, the party injured has, by his own want of reasonable care, contributed to the happening of the injury, then the party guilty of the 'original act of negligence is absolved. For example— 1. If Jones had persisted in dodging in front of Smith's gun, and daring him to have a shot at him. 2. If the passenger had got out of the train before it had stopped. 3. If Eobinson could have got out of Brown's way, had he been looking where he was going. 4. If the plate-glass door was built in a passage, where no one would expect such a thing, and Green was entitled to go down the passage, and no notice was given to him of the position of the glass door. 5. If Grey had been misled by lights improperly exhibited by the owners of the pier or landing stage. (J. If Williams had carelessly stumbled against the door, and helped to bring it down upon himselfi Then the parties, who have suffered the damage, are in that position through their own folly, and are not entitled to compensation. § Frooided — (i) That the injury resulting is the necessary, ordinary, and likely consequence of the contributory negligence. llliistration. Swan owned certain shares in the North British Australasian Company, and also in another Australian Company. He was intending to transfer the latter, and was induced by his broker Oliver to execute a blank transfer, Oliver Q 226 RUBRIC OF THE COMMON LAW. fraudulently filled in the numbers and description of Swan's shares in the North British Company, and effected a sale to a nominee of his own. In order to get the transfers registered, it was neces- sary to produce to the North British Company's secretary the share certificates. Swan had left these in Oliver's charge, locked in a box, of which- he. Swan, kept the key. Oliver, however, got a dupHcate key, stole the certificates, and got the transfer registered. Swan afterwards, on dis- covering the fraud, brought an action against the company for wrongfully removing his name from the list of shareholders. The defendants set up a defence of contributory negligence on the part of Swan in executing the blank transfer, by which Oliver was enabled to commit the fraud. But the court held that the proximate cause of the fraud being successfully carried out, was the felonious act of Oliver in stealing the certificates, and not the negligence of the plaintiif, and that the latter was entitled to judgment, (a) Oi) The contributory negligence is such as to preclude the party primarily guilty of negligence from avoiding the consequences of such contributory negligence by the use of reasonable care. Illustration. Davies had a donkey which he "hobbled," and turned into the high road. Mann's waggon and horses came along at a smartish pace, knocked down the donkey, and ran over it. In an action by Davies against Mann for the injury done to tte donkey, the defendant contended that the plaintiff's negHgence in leaving the donkey, hobbled, in the highway, con- tributed to the donkey's death. But the court held (a) Swan v. North British Australasian Company, 32 L. J. Ex. 273. OF THE NEGLIGENT USE OE CHATTELS. 227 that this was no justification, if by driving ofirefully the defendant coiild have avoided the donkey, and pulled up in time to let him get out of the way. ("6) (iii) The act of contributory negligence is an independent act, and not an act resulting in the moment of peril from the original act of negligence. Illustration. "The Prineesa Alice," a paddle steamer, coming up the Thames wiiih some 600 passengers on board, was being navigated in a careless and reckless manner. Near Tripcock Point she came into collision ■with a screw steamer called " The Bywell Castle." Till the moment of the collision the latter was not to blame. But just as the two vessels came together, she hard-a- ported ; the consequence of which was that the colhsion was much more serious, and " The Princess Alice " sank with all pn board, " The Bywell Oastle," also, being considerably injured. Oross-claims being brought in the Admiralty Court by the owners of the two vessels, it was held, on appeal, that if one ship puts another in a position of extreme peril, and that other ship, at such moment, contributes to the mischief, the latter will not be liable ; as perfect presence of mind, accurate judgment, and promptitude, under all pircunigtances are not to be expected, (c) Where -an Injury to the Person results in Death. § In all cases where an injury to jhe person has arisen from negligence-^ 1. In the nianagement of realty ; 2. In the management of chattels : (b) Dailies v. Mann, 10 M. & W. 546 ; see Eadley v. London and North- Western Railway Company, 1 App. Cas. 574. (c) " Tlie Bywell Castle," i ?. D, 219. Q2 228 EUBBIO OF THE COMMON LAW. ?'• In the conduct of the person ; the right of action at common law lapses with the death of the party injured ; for " actio personalis moritur cum persona." § But, hy virtue of Lord Campbell's Act, (a) the right of action survives for the benefit of the wife, husband, parent, grandparent, step-parent, children, step-children, and grandchildren of the deceased ; and an action will lie against the party guilty of the negligence. Rrortded — 1- The death was caused by the wilful act, neglect, or default of the defendant. 2. The deceased, if he had lived, would have had a right of action for his personal injuries. 3. The action is brought in the name of the executors or administrators of the deceased. 4. Within twelve months of his decease. 5- Full particulars of the persons for whose benefit the action is brought, are delivered to the defendant with the statement of claim. § The liability of shipowners is limited to £15 per ton of THE BEGISTEKBD TONNAGE OF THE VESSEL, in all CaSCS where loss of life or personal injury has occurred through any wrongful act, neglect, or default, for which they are liable, !• To any person carried on such ship ; 2. To any person carried on another vessel ; Provided it has happened without their actual fault or privity. (6) § The Board of Trade has power, in its discretion, to hold an inquiry into the matter before a jury ; in which case(c) (a) 9 & 10 Vict. c. 93. (6) 25 & 26 Vict. c. 63, s. 54. (c 17 & 18 Vict. c. 104, ss. 507, 510. OF THE NEGLIGENT USE OF CHATTELS. 229 (i) No more than £30 can be recovered. (<^) (ii) The sum recovered is paid in priority to all other claims. (^ (iii) The Board may arrange a compromise between the shipowner and the plaintiff, (e) (iv) The plaintiff, if dissatisfied, may repudiate the pro- ceedings of the Board of Trade ; and bring his action. (/) Upon the terms — (a.) That any sum recovered is payable after other claims, substantiated at the Board of Trade inquiry, have been satisfied. (/) (;8.) That, unless the plaintiff in his action re- covers double the statutory amount of £30, he will have to pay the defendant's costs.(/) {y) That he does not commence his action, until the Board of Trade have either completed, or determined not to hold, an inquiry. (^) § In actions fok negligence 1. It is the duty of the judge to say if any evidence has been given by the plaintiff, from which the inferences may reasonably be made, (i) That there was negligence on the part of the defen- dant ; (ii) That the negligence (if any) was connected with the injury happening to the plaintiff. If, in his opinion, there has not, it is his duty to nonsuit the plaintiff. If, in his opinion, there has, he must leave the case to the jury. 2. It is the duty of the jury to say, upon the evidence given by the plaintiff, and on any counter-evidence, which may {d) 17 & 18 Vict. c. 104, s. 510. (e) Ibid. s. 509. (/) Ibid. a. 511. (g) Ibid. s. 512. 230 EUBEIC OF THT5 COMMON LAW. be given by tbe defendant) whether such inferences ought to be rtiadci That is — (i) Whether they heUeve that the defendant was negli- gent, and (ii) Whether they believe that the plaintiff's injury did result from the defendant's negligence, [(iii) Whfether they believe that the plaintiff himself con- tributed to the result. (a)] (a) See the jrtdghients of Lord Gairns and Lord Blackburn in Jackson v. MeCfvpoUtan, Railway Company, 3 App. Cas. 197, 198, 207, 208; WaJcelin v. London and South- Western Railway Gompa/ny, 12 App. Cas. 41. NEGLIGENT CONDUCT OF THE BAILEES OP CHATTELS. 231 CHAPTER II. NEGLIGENT CONDUCT OF THE BAILEES OP CHATTELS. § With the different kinds of bailments we have already dealt (ante, p. 81). It remains to consider the different degrees of care, which the three different classes of " bailees are bound to exercise. More care is required of some than others. § It is a question for the jury to decide, taking into consideration the circumstances of each case, and subject to the fol- lowing general rules, whether due care has been exer- cised by the particular bailee, whose conduct is brought before them. (6) 1. Geatuitous Bailees [that is, bailees in the cases of depositum and mandaturn] are bound to exercise. Slight diligence \levissima diligentia], and are liable only for the converse, which is Gross negligence [lata culpa], viz. : the absence of that ordinary diligence, which men of common prudence generally exercise about their own affairs, and such skill as a man actually has.(c) 2. Bailees for Eewaed [that is, bailees in the cases of vadium, locatio rei, and locatio operis faciendi] are bound to exercise, Ordinary diligence [diligentia'], and are liable for its converse, which is {h) Doorman v. Jenkins, 2 Ad. & E. 256. (c) Per Ld. Ohelmsfokd in Giblin v. McMallen, L. R. 2 P. C. 337 ; and ]ier Pollock, 0. B., in Beal v. South Devon llailviaij Gompany, 5 H. & N. 8S1 ; VaugMn v. Menlove, 3 Bing- N. Gi 475 ; Story on Bailments, 8tli edit., §§ 11, 16-18. 232 RUBEIC OF THE COMMON LAW. Ordinary negligenrfi [culpa levis], Viz. : the absence of such skill as a person ought to have in the business which he undertakes ; and the absence of such care and diligence as are ordinarily exercised in the proper course of such business, (a) 3. Borrowers [bailees in the case of commodatum] who are bound to exercise, TJw utmost care \exactissima diUgentia'\, and are liable for the converse, which is The least negligence [levissima culpa], viz. : any negli- gence short of pure accident [casus] . (b) [Note. Contributory negligence is also a defence to an action for a breach of the duties referred to in this chapter ; and the remarks on contributory negligence in the last chapter apply equally to this one.] (a) Per Pollock, C. B., in Beal v. South Devon Railway Company, 5 H. & N. 881 ; Story on Bailments, 8tli edit., §§ 11, 16—18. (6) Campbell on Negligence, p. 15 ; Story on Bailments, 8th. edit., §§ 11, 6—18. BATTERY AND ASSAULT. 233 PAET V. OP THE INFEINGEMEKT OF THE EIGHTS OP THE PERSON. CHAPTER I. BATTEEY AND ASSAULT. § A BATTERY IS the Unlawful laying of hands on another without his consent. [This includes striking him with a missile.] § An ASSAULT is an attempt at a battery. § ThBT are justifiable only, when COMMITTED — 1. In self-defence, or the defence of a wife, or a ser- vant, (c) 2. In ejecting a trespasser. ((^) 3. In defence of a house, or of goods, (e) 4. In resisting a forcible entry by a landlord. (/) 5. In obedience to some legal warrant. (^) 6. Through inevitable accident without negligence. (A) 7. By a parent, schoolmaster, or master, in moderately chastising his child, pupil, or apprentice.(e) Prooi.ded so much force only is used as is necessary for the due performance of these acts, and no more. (c) Seward v. Baseley, 1 Salk. 407. {d) Weaver v. Buck, 8 T. E. 78. (e) Roberts v. Taylor, 1 C. B. 147. (f)Polkmghorn v. Wright, 8 Q. B. 206. (g) Buron v. Denman, 3 Ex. 167. (A) Gibbons v. Pepper, 2 Salk. 637. (i) Fitzgerald v. Northcote, -1 F. & F. 056 ; Punn v. Ward, 2 C. M. & K. 338 ; Gardner v. Bygrave, Times Bep. vi, 23. '; 234 RUBEIG OF THE COMMON LAW. CHAPTER 11. OF FALSE IMPRISONMENT. § False imprisonment is the unlawful arrest or detainer of another without legal authority. 1. By private persons. 2. By officers of justice. (i) Without a warrant, (ii) By an i]legal warrant, (iii) By a legal warrant at an unlawful time. [Note. A person will be liable to an action for false imprisonment if he authorizes, or subsequently ratifies, ' the wrongful act of his agent] § Arrest and detainer is justifiable. I. By private persons. 1. Where a felony has been committed hy some person, and there was reasonable cause to suspect the person arrested of having committed it. (a) [Note. Arrest is unjustifiable where there is only a suspicion that the person arrested has committed a misdemeanor. (F)] 2. Where any person is found committing, (i) Any offence under the " Prevention of Grimes Act, 1851."(c) (ii) Any offence under the " Larceny Act, 1861 " (except angling in the daytime) . (<^) (a) Allen v. JFriijht, 8 C. & P. 526. (6) Fox V. Gaunt, 3 B. & Ad. 800 (c) 14 & 15 Vict. c. 19, s. 11. (d) 24 & 25 Vict. c. 96, s. 103. OK FALSE IMPJRrSOXMENT. 235 (iii) Any offence under the " Malicious Injuries Act, 1861."(^) [So long as the person making the arrest is the owner of the property injured, or some one acting with his authority.] (iv) Any offence under sect, i of the " Vagrant Act, 1824."(/) (v) Any offence under the " Metropolitan Police Act." (g) [So long as the person making the arrest is the owner of the property in respect of which the offence is committed, or some one acting with his authority.] (vi) Any coinage offence. (A) "Where any person to whom property is offered to be sold, pawned, or delivered has reasonable cause to suspect that an offence under the " Larceny Act, 1861," {{) has been committed, he may arrest the person so offering it.(i) Where there is an actual breach of the peace being committed, the affrayers may be arrested at the moment of the affray. (^) Persons making a disturbance in a church, chapel, or burial ground may be arrested hy the church- wardens.i(Z) Where persons ©n board a passenger steamer, their names being unknown, have committed certain specified offences under the " Merchant Shipping Act, 1862," they may be arrested by any of the ship's ofiicers, and persons called to their assistance. (m) (e) 24 & 25 Vict. c. 97, s. 61. (/) 5 Geo. 4, c. 83, s. 4. (r/) 2 & 3 Vict. c. 47, s. 66. (h) 24 & 25 Vict. c. 99, s. 31. (i) 24 & 25 Vict. c. 96, s. 103. (/c) Price V. Seeley, 10 CI. & F. 3!J. ■(0 23 & 24 Vic;t. c. 32, ss, 2, 3. (m) 25 & 26 Vict. c. 63, s. 37. 236 EDBRIO OJ? THE COMMON LAW. 7. Where a seaman deserts from, or refuses to join his ship, he may be arrested by the master, mate, owner, ship's husband, or consignee, (a) 8. Where the arrest is of a principal by his bail. (6) 9. Where power is given, by their private acts, to railway companies to arrest, by their servants, persons whose names are unknown, and who have committed certain ofiFences specified in those acts. 10. Where a person travels on a railway without paying his fare, with intent to avoid paying it, he may be arrested by the company's servants, (c) 1.1. Where the prisoner has committed an offence under the " Cruelty to Animals Act, . 1835," he may be apprehended on the view, by the owner of the animal. ((?) 12. A water bailiff and his assistants may apprehend any person found at night, (i) Taking, or killing, salriion ; (ii) Being near a salmon river with intent to take, or kill, a salmon ; (iii) Having in his possession any instrument for- bidden by the Salmon Acts, 1861, 1873.(e) 13. Where the prisoner has been found conimittltig an offence under the " Night Poaching Act," he may be apprehended by the owner or occupier of the land where the offence has been committed, or the lord of the manor, or their gamekeepers or ser- vants.(/) 14. Where the prisoner has been obstructing an inspector (ft) 17 & 18 Vict. c. 104, s. 246. (6) Anon. 6 Mod. 231. (c) 8 Vict. c. 20, ss. 103, 104. (d) 5 & Will. 4, I. 59, s. 9. (c) 3G & 37 Vict. c. 70, s. 105. (/) 9 Geo. 4, c. 69, s. 2 ; 7 & 8 Vict. c. 29. OF FALSE IMPRISONMENT. 237 or other officer acting under the " Contagious Diseases (Animals) Act, 1869." (g) !•). Where the prisoner was found committing an act for ■which he is liable to a penalty under "The Ex- plosive Substances Act, 1875," he may be appre- hended by an officer of "the local authority," or by the occupier of the premises endangered by such act, or by his agent. (A) 16. Where the prisoner, whose name is unknown, has attempted to cheat a tramway company, the servants of the company may arrest him.(«) 17. An inmate of a workhouse or casual ward guilty of disorderly conduct may be arrested by the master or porter of the workhouse.(A) 18. Where a pedlar refuses to show his license to — (i) A justice of the peace ; (ii) Any person to whom he offers goods for sale ; (ui) Any person on whose premises he may be ; such person may apprehend him.(Z) 19- Where the driver of any waggon or cart on any highway — (i) Bides on the vehicle or horses (when not driven with reins) ; (ii) Negligently or wilfully causes damage to what is passing him ; (iii) Quits the road and goes on the other side of the hedge ; (iv) Is negKgently at too great a distance from his horses to have them under control ; ^- _ (v) Leaves iis vehicle so as to obstruct the high- way; (g) 32 & 33 Vict. c. 108,6.8. (7i) 38 Vict. c. 17, s. 78. (i) 33 & 34 Vict. c. 78, s. 52. (it) 34 & 35 Vict. c. 108, s. 8. (0 34 & 35 Vict. c. 96, s. 18. ^38 EUBEIO OF THE COMMON LAW. (vi) Does not have the owner's name painted on the vehicle, and refuses to give such name ; (vii) Does not keep on the near side of the road ; (viii) Wilfully prevents another from passing him ; (ix) Rides or drives furiously ; He may be arrested by any perso« who sees him com- mitting the offenee.() 5. Where the defamatory matter is uttered without actual mahce in the prosecution of an inquiry into a suspected crime. lllusiniiiou. Hannah Podmore called at Law- rence's house. After she had left, Mrs. Law- rence missed a brooch. Lawrence then followed Podmore to an inn, and stated to her his suspicions in the presence of a third person. Afterwards Podmore consented to be searched by two females, to whom Lawrence repeated the charge. The brooch was afterwards dis- covered to have been left by Mrs. Lawrence in another place. In an action by Podmore (a) Seaman r. Ndlierdift, \ C. P. ]). 544 ; 2 0. P. D. 53. {h) Harrison v. Bush, 5 E. & B. 344. DEl^AMATiON OP dUAEACTBif. 261 the court held that the occasion was privi- leged.(c) ill. Of statutory apologies. 1. An^ defendant may give evidence, in mitigation of damages, of his having made or offered an apology — (i) Either before action ; (ii) Or as soon as possible after action, if the action was commenced before he had time to do so. Provided, \h&i he has with his statement of defence delivered to the plaintiff a notice of his intention to give such evidence. ((^) 2. The defendant in an action for libel against a public newspaper, or other periodical publication, may make a good defence to such action — (i) By inserting in his own paper, at his earliest opportunity, an apology. [Or, if his own paper is pubKshed less often than weekly, in some paper or periodical selected by the plaintiff. ] (ii) By showing that the libel was published — ("■) Without actual malice ; and {^- ) Without gross negligence, and (iii) By paying into court sufficient amends for the injury sufctained by the plaintiff. («) [Note. By 51 & 52 Vict, c 64, s. 5, where actions are brought against two or more newspapers for substantially the same libel, such actions may be consolidated. By s. 6, in an action for libel contained in a news- paper, evidence may be given by the defen- dant in mitigation of damages, that the plaintiff has already recovered or brought (c) Pod/more v. Lawrence, 11 Ad. & E. 382. (d) 6 & 7 Vict. 0. 96, B. 1. (e) Ihid, s. 2. 262 feUBRIC 01? THE COMMON LAW. actions for damages in respect of the same libel. J § Questions fok the junv. 1. Whether there has been a publication of the libel. 2. Whether the defamatory matter is a libel.(a) That is to say, whether it really bears the meaning attri- buted to it. ;]. Whether, (if it is a report, or criticism in a paper,) it is a fair comment. 4. Whether, (if the judge holds the occasion privileged,) it was pubhshed with actual mahce. 5. Whether, (if justified,) it is true. 6. Whether, (if money is paid into court,) the sum so paid in is sufficient. § Questions fok the judge. 1. Whether the alleged libel is capable of bearing the meaning ascribed to it.(Z>) 2. Whether the occasion is privileged, (c) Of Criminal PROCBBDiNGb;. § (.'ItlJllNAl- I'HOCEKOINGS MAY BE TAKEN. L. By indictment ; 2. By information, filed in the Queen's Bench Division, by leave of the court.((Z) No criminal prosecution can be commenced against any proprietor, editor, or any person responsible for the pubUcation of a newspaper for any libel contained therein without the order of a judge at chambers.(e) (a) 32 Geo. 3, c. 60, s. 1. (6) Sturt V. Bhcjg, 10 Q. B. 908. (c) Goolce v. Wildes, 5 E. & B. 378. (d) The judges of the present day are strongly opposed to granting a criminal information, unless the person libelled is the holder of a public ofiioe : see Beg. v. Labouchere, 12 Q. B. D. 320. (e) 51 & 52 Vict. c. 64, s. 8. ilBFAMATtON OF CfiAKACTElt. 263 § Punishment — i. Where tlie publisher does not know the Hbel to be false ; Fine, or imprisonment not exceeding one year, or both.(/) 2. Where the publisher knows the libel to be false ; Pine, and imprisonment not exceeding two years. (^) \_The crime is a misdemeanor, not triable at quarter sessions.] § An indictment will only lie for libel, and not for slander. Except — 1- Where it is seditious ; 2. Where it is blasphemous ;(A) 3."~ Where it directly tends to a breach of the peace ;(«') [As a challenge to fight a duel. J 4. Where uttered against, and in the presence of' a magistrate in the execution of his oiSce.(i) § Defences — 1- The defendant may show that the libel is true ; Provided he also shews that it is for the public benefit that it should be published. (Z) [Note. At common laiv it was no defence to show that the libel was true ; and hence the maxim, "The greater the truth, the greater the libel." 1 2. The defendant may shew — (i) That the publication was made without his autho- rity, consent, or knowledge ; and (ii ) That the publishing did not arise from want of due care, or caution, on his part.(m) (/) e & 7 Vict. c. 96, s. 4. {g) Ibid. s. 5. (h) E. V. Taylor, 3 Keb. 607. (i) E. V. Phillips, 6 East 464. (k) E. V. PococJc, 2 St. 1,157 ; Ex parte Duke of Marlborough, 5 Q. B. 955 ; E. V. Weltje, 2 Camp. 242. (0 6 & 7 Vict. c. 96, s. 6. (m) 6 & 7 Vict. c. 96, s. 7. 264 ^tJBbiO Ol? TtiE CbMMbN LAW. PAET VI. OF BEBAOHBS OP DUTY IN EBLATION TO THE PEESON. CHAPTER I. NEGLIGENT PERSONAL CONDUCT. ^ A\'liere one by want of reasonable care in his own personal conduct causes damage to the person, or property (real or personal) of another, he is liable to compensate that other for the loss. For example. If Jones were to hit out recklessly, right and left, with his fists, in a crowd, and so were to wound Smith, he would be liable to Smith for the injury. § Professional men and skilled workmen are bound to use — 1. Reasonable care. 2. Reasonable diligence. 3. A reasonable and competent degree of skill. In proportion to the character of the work which each pro- fesses to undertake, (a) [Note. Contributory negligence. The remarks on contribu- tory negligence (ante, p. 225) apply equally to this chapter.] (ci) Lanphier v. Phiiios, 8 C. & P. 4V9 ; Scare v. Prentice, 8 East. 352. Oi^^ Ji^tiAUDULliNT liEPBESBNTATtONS. 265. CHAPTEK II. OF FRAUDULENT REPRESENTATIONS. § A FRAUDULENT REPRESENTATION, for wHch an action will lie, must be — 1. A false statement (&),whicli may be either a (i) Suggestio falsi ; or a (ii) Suppressio veri.(c) 2. Made with a knowledge of its nntruth.((^) \0r (i) With no belief in its truth, (e) Oi' (ii) In a reckless ignorance of its untruth.(/)] 3. Made with the intention that another should act upon [Note. Rut a bare lie, without any fraudulent intent, is not actionable.. (A)] 4. Acted upon by that other. 5. Resulting, from being so acted on, in damage to that other, (z) [Note. A person making a fraudulent representation will be liable, although he derives no benefit there- from. Illustration. Joseph Freeman represented to Messrs. Pasley and Edward that one Falch was a person (6) Ashlin v. White, Holt. 387. (c) Eorsfall v. Thomas, 31 L. J. Ex. 322 ; GaiUret v. Egerton, L. E. 2 C. P. 371. Id) Ormrod v. Huth, 14 M. & W. 651. (e) Taylor v. Asliton, 11 M. & W. 415. (/) Jarrett v. Kennedy, 6 C. B. 319; Reese River Silver Mining Company v. Smith, L. K. 4 H. L. 64. (g) Thorn v. Bigland, 8 Ex. 725. (V) Behn v. Kemble, 7 C. B. N. S. 260. (i) Forsier v. Charles, 7 Bing. 105. 2^6 , EttBEIO OF TSE common LAW. safely to be trusted in order that Falch might obtain goods upon credit. Thereupon Pasley and Edward supplied him with goods upon credit, and Falch being insolvent, they lost the value of their goods. Freeman knew all the while Falch's cir- cumstances. But it was conceded that Freeman had no interest in Falch's obtaining the goods, and that he was not in collusion with Falch. In an action by Pasley and Edward, the court held that Freeman was liable to them for the value of the goods suppKed to Falch. (a)] § "Whehk a kkaudulbnt representation or assurance is MADE AS TO A PERSOn's 1. Conduct. ■i. Credit. TK. Loss of projHs cannot be recovered in an action of contract, (b) Unless the profits to be made are the actual thing contracted for, as where a ship is hired for the purpose of earning freights, (c)] (iv) Jlhistration. Benjamin kept a coffee-house in a narrow street, near Covent Garden. Storr & Co. carried on business as auctioneers, on adjacent premises, which had an out-let close to Ben- jamin's house. Storr & C!o.'s vans were con- stantly being unloaded in this out-let, and intercepted the light flowing on to Benjamin's windows, to such an extent as to oblige him to burn gas all day. In an action by Benjamin for the obstruction of his light, and for an injunction to restrain Storr & Co., it was held that the plaintiff could recover special damage in respect of the extra gas which he had been compelled to burn.(cZ) (v) JllustraUon. Biding kept a draper's and grocer's shop, and was assisted by his wife in the busi- ness. Smith said in the presence of several persons that Mrs. Riding had been guilty of adultery with the new incumbent of a neigh- bouring church. Biding sued Smith for mali- ciously maldng this statement with reference (o) France v. Gaudet, L. K. 6 Q. B. 199. (6) fFilliams v. Reynolds, 34 L. J. Q. B. 221. (c) Cory V. Thames Iromoorks Company, L. R. 3 Q. B. 181. {d) Benjamin v. Storr, L; R. 9 C. P. 407. DAMAaES. 299 to his business, and proved as special damage that his trade had considerably fallen off. The court held that he was entitled to recover the damage proved, (e) (vi) Illnstrdtioii. Mainwaring, a broker in London, received a commission from Gevers & Co., merchants in Holland, to purchase and ship from Porto Eico tobacco of the best quality. Mainwaring employed Brandon & Co. to exe- cute the order, and Brandon & Co. bought and shipped a quantity of rotten and inferior tobacco, which Gevers & Co. refused to accept. Gevers & Co. sued Mainwaring for, and re- covered from him, damages for the breach of contract. Mainwaring then sued Brandon & Co., and the court held that he was entitled to recover, not only the damages he had had to pay Gevers & Co., but also the costs he had incurred in defending the action. (/) [Note. The costs of defending an action can only be recovered when, (a) They are the natural and proximate consequence of the breach of con- tract ;(^) (/3.) They are such as a prudent and reason- able man would, under similar circum- stances, have incurred. (/*) J Pbospective damages may be given by the jury in respect of consequences, which they believe will almost certainly happen, (e) (e) Riding v. Smith, 1 Ex. D. 91. (/) Mainwaring v. Brandon, 2 Moore, 125. {g) Bichardson v. Dunn, 8 C. B. N. S. 655. (h) Broom v. Hall, 7 0. B. N. S. 503. (i) Richardson v. Mellish, 2 Bing. 240. 300 EUBEIC OF THE COMMON LAW. § The damages must not be too rejiotbly connboted with the cause of action. § In order not to be too remote they must be — I. In actions of contract, damages, which may reasonably be supposed to have been in the contemplation of both parties at the time of entering into the contract, as the probable result of a breach of it. Ilhi.ftnitloi). Hadley & Co., the owners of a flour miU, sent a broken iron shaft to Baxendales, the carriers, to be delivered to Joyce & Co., as a pattern, from which Joyce & Co. were to make a new shaft. At the time of leaving the shaft, they told Baxendales' clerk that the mill was stopped, and the shaft must be delivered immediately, but said nothing to lead him to suppose that the working of the mill depended on the expedi- tious despatch of the shaft. Baxendales did not dehver the shaft to Joyce & Co. for several days, and the making of the new shaft was thereby proportionately delayed. Hadley & Co. sued Baxendales for the loss of profits which they incurred through the mill being stopped. And the court held that the damage was too remote, (a) § lite damage will have hn'ii- in the contemplation of the parties. 1. When the special circumstances of the case are known to them. (i) lUnstration. The British Columbia Saw MiU Company delivered to Nettleship several cases of machinery to be carried in his ship to Vancouver's Island, for the erection of a saw mill. On the arrival of the ship at Van- couver's Island, one of the cases, which con- tained certain portions, without which the (a) Hadley v. Baxendale, 9 Ex. 341. DAMAGES. 301 mill could not be erected, and which could not be replaced without sending to England, was missing, and the company sued Nettle- ship for the actual cost of replacing the machinery, and also for loss incurred by the stoppage of the works for the twelve months which elapsed before the lost machinery could be replaced. Nettleship only knew at the time he shipped the cases that they contained machinery, and was informed of nothing further. The court held that the damage claimed for the stoppage of the works was too remote. (6) (ii) Illustration. Stuart's business was to collect tele- graphic messages for transmission to America, Sanders & Co. entrusted him with a messaae in cypher, which was uninteUigible to Stuart. He negligently omitted to send the message, in consequence of which Sanders & Co. lost a sum of money, which they would have earned for commission on an order, to which the mes- sage related. In an action by Sanders & Co. against Stuart, it was held that they were only entitled to nominal damages, (c) 2. Where the damage flows naturally from the breach of contract under those special circumstances. Illustration. Hobbs and wife and two children were passengers by the South Western Railway, from Wimbledon to Hampton Court, by the midnight train. The train instead of going to Hampton Court branched at Surbiton, and they were, therefore, obhged to alight at Esher, some (6) British Columbia Saw Mill Gompany v. Nettleship, L. R. 3 C. P. 499. (c) Sanders v. Stuart, 1 C, P. D, 326. 302 EUBEIO OF THE COMMON LAW. four or five miles from their destination. No conveyance could be got, and no accommodation at an inn ; and they were all obliged to walk home. The night turned out a wet one, and the wife caught a severe cold, and was laid up for some time. They sued the company for damages, and the jury gave them £8 for the inconvenience to which they had been submitted, and £20 for the expenses in curing the wife. The court held, that the verdict should stand for £8, but that as to the £20, the illness and its consequences were too remote, (a) 3. Where the special risk has been either expressly or impHedly assented to by the party to be charged therewith. Illustration. Home & Co., shoe manufacturers, of Kettering, were under a contract to supply a quantity of military shoes to a firm in London for the use of the French army, at is. a pair, an unusually high price. The shoes were to be delivered by Feb. 3rd, 1871, and Home & Co. sent them in good time to the Midland Railway for carriage to London, with notice that the shoes would be thrown on their hands if not delivered by Feb. 3rd ; but no notice was given that there was anything exceptional about the contract. The shoes were not delivered till Feb. 4th, and were rejected, and had to be sold for the market price of such shoes, viz., 2s. 9d. a pair. Home & Co. then sued the company for the full value of the contract at is. per pair, less the amount realised on sale at 2s. 9d. (a) Hobbs v. London and Smith Western Railway Company, L. R. 10 Q. B. Ill ; this case is commented iipon in McMahon v. Field, 7 Q. B. D. 591 (C. A.). DAMAGES. 303 per pair ; and the company paid into court the sum of £20 to cover the expenses of the sale, and of the deHvery to the ultimate purchaser. The court held that the extra Is. M. per pair could not be recovered, as, in the absence of something equivalent to a contract on the de- fendant's part to be liable for the extraordinary price, they could only be reasonably supposed to have had in their contemplation that the plaintiff's contract -was to supply shoes at an ordinary price. (6) II. In actions of tort, damages, which it was probable would, in the natural course of events, flow from the original wrongful act. (i) Illustration. Some workmen of the London and South Western Railway Company cut the grass and trimmed the hedges at the side of a portion of the hue. They placed the cuttings in heaps, which, during the very dry weather, became so dry that some sparks from an engine set them on fire. The fire spread to the hedge, and burnt the hedge, and then across a stubble field, and over a road for some 200 yards, and set fire to Smith's cottage.' In an action by Smith against the company, the court held that the damages were not too remote, and the company were liable for all the consequences naturally re- sulting from their negligence, wJwther they could have foreseen them or not.(c) (ii) Illustration. Felton gave Hoey (a cigar maker) into custody upon an unfounded charge. He was detained from 1.30 to 2.0, when he was set at hberty. At two o'clock Hoey had an appointment (5) Home v. Midland Railway Gompany, L. E. 8 C. P. 131. (c) Smith V. London and South Western Railway Company, L. R. 6 0. P. 14. 304 EUBEIO OP THE COMMON LAW. ■with a cigar manufacturer to consider the latter taking Hoey into his employment. But by reason of Felton's conduct, Hoey was unable to keep his appointment, and on attending the following morning found the place had been given to another. In an action by Hoey against Felton for false imprisonment, it was held that his claim for damage in respect of his loss of the engagement was too remote, for such damage does not in the common course of events follow from such a wrongful act as the defendant's, the act and the damage in such a case not being known by common experience to be in sequence, (a) [Compare also the cases, ante, on special damage.] § The OBIGINAL DOER OF A WRONGFUL ACT IS RESPONSIBLE FOR THE CONSEQUENCES OF THAT ACT. Illustration. Shepherd threw a lighted squib from the street into a market house, where many people were assembled. It fell upon the stall of one Yates, who sold gingerbread. One Willis, to save Yates' goods, picked it up, and threw it across the market ; where it fell on the stall of one Ryall, who to save his goods took it up, and threw it across the market house again. In this last flight it struck Scott in the face, burst, and put out one of his eyes. He sued Shepherd in trespass for the injury; and the court heldj that Shepherd, who had originally set the dangerous thing in motion, was liable, the injury to Scott being the immediate consequence of Shepherd's wrongful act.(6) § Damage will not be too remote, althouch a third party has intervened, and immediately caused the injury. [llustration. Chambers, who was the proprietor of certain athletic grounds at Lilly Bridge, illegally (a) Hoey v. Felton, 11 C. B. N. S. 146. (6) Scott v. Shepherd, 2 Wm. El, 892, DAMAGES. 305 placed a barrier across a private road near his fence, to prevent persons from driving up to the fence, and looking over at the sports. Some person mis- chievously removed a portion of this barrier, which was covered with spikes, and set it up on the footpath by the side of the road. (Clarke, who was coming along the footpath on a dark night, ran against the spikes, and injured his eye. In an action by Clarke against Chambers it was held, that the defendant was liable, (c) § Interest mat be recovered. 1. On judgments in the Superior Courts, at the rate of four per cent.{d) 2. On negotiable instruments. 3. Where there is an empress or implied agreement to pay interest.(e) 4. Where a sum, which can be ascertained by calculation, (/) is payable, (i) By virtue of a written instrument ; and (ii) At a certain time ; or (iii) By virtue of a demand for payment, in writing, with written notice that interest will be charged from the date of the demand. (^) 5. In actions of (i) Trover; (ii) Trespass to goods ; (iii) On policies of insurance. (A) [Note. It is in the discretion of the jury to give interest in cases 4, and 5.{i) J (c) Olarke v. Chambers, 3 Q. B. D. 327. {d) 1 & 2 Vict. c. no, s. 17. (e) Ex parte Williams, 1 Eose, 399. (/) Harper v. Williams, 4 Q. B. 234. (^) 3 & 4 Will. 4, c. 42, s, 28. {h) 3 & 4 Will. 4, 0. 42, s. 29. (i) lUd. ss. 28, 29. X '306 kubeic op' the common law. Of Liquidated Damages and Penalties. ^ Liquidated damages. A sum agreed upon beforehand by the parties to a contract, as the ascertained satisfaction for its breach. 1. Where the consequences of the breach are altogether uncertain ; 2. Where the parties themselves can most correctly esti- mate the damage. Illustration, Galsworthy & Strutt, solicitors, dis- solved partnership, Strutt covenanting not to practise during the then next seven years, directly or indirectly, as solicitor or attorney within fifty miles of Ely Place, nor interfere with, sohcit, or influence the clients of the late co-partnership ; and for a breach of such covenant to pay Gals- worthy the sum of £1,000 liquidated damages. Strutt broke his covenant and practised in West- minster ; and, on Galsworthy suing him on the covenant, paid £50 into court as satisfaction for a penalty. The court held that the sum of £1,000 was liquidated damages, for no man can say how much he may be injured by the loss of one of his chents-Ca) § A PENALTY is a sum which one of the parties to a contract has bound himself to forfeit in the event of — 1. His failing to pay a much smaller sum ; 2. His failing to perform certain specified terms of the contract. [Note. Cases of great hardship arose, where all the material terms of a contract were fulfilled, but some insignificant matter had been neglected, whereby the (a) Calsmrthij v. Strutt, I Ex. 633. DAMAGES. 307 full penalty became forfeit. Whereupon the Court of Chancery was in the habit of interfering by injunction upon the defendant's satisfying the plaintiff's sub- stantial claim to restrain the plaintiff, who had recovered a penalty at common law, from obtaining the fruits of his judgment. Thereafter the legislature proceeded to give relief at common law, as follows : — 1. In the case of common money bonds [where the bond is to become void on payment on a certain day of a certain less snm, and otherwise the larger penal sum to become forfeit.] (i) If the principal and interest due were paid before action (though the bond was forfeit), a defence was given to the action. (ii) If the principal and interest due were not paid before action, they might be paid into court, and the bond discharged, (c) 2. In the case of bonds, under which a penal sum is to be forfeit, npon failure to perform certain acts therein specified. (i) The plaintiff is bound, in an action on the bond, " to assign breaches " (that is, to specify the defendant's acts, for which he claims forfeiture of the penalty), (ii) The defendant may, if he pleases, pay money into court to meet the claim, (iii) The jury, if sufficient money is not paid into court, assess damages for those specific breaches, upon proof thereof; which damages alone can be recovered, (iv) Judgment is then entered up for the full (c) 4 & 5 Ann. c. 16, ss. 12, 13. S 2 308 EUBBIO OF THE COMMON LAW. amount of the penalty, as security for damages resulting from any subsequent breaches which may be committed. (a)] § There is a great distinction between " a penalty " and " liquidated damages." In an action for the latter, the plaintiff recovers the entire sum stipulated for, whatever the actual amount of damage may be. In an action for the former the plaintiff only recovers such an amount as a jury may think is a reasonable compensation for the injury sustained. § It is a question of law for the court or a judge to determine whether a sum mentioned in a contract, as payable in the event of a breach thereof, is to be treated as liquidated damages or as a penalty. (6) § It matters not, whether in the contract the sum payable is called " a penalty " or " liquidated damages," as the court will look to the meaning and effect of the contract itself, as disclosing the intention of the parties, irrespective of the term they have chosen to make use of.(c) § The specified sum will be deemed by the court to be a penalty where 1. (i) The payment of a smaller sum is secured by a larger one.((Q (ii) The performance of an act is secured by a certain sum, and in the same instrument a smaller penalty is attached to the non-performance of such act. Illustration. Frances Weldon, an actress, agreed with Astley to play in his company for three years, at £1 lis. 6d. per week, and her travelling (a) 8 & 9 Will. 3, c. 11, s. 8. (b) Sai/ider v. Ferguson, 7 C. B. 727 ; see Jones v. St. John's College, Oxford, L. R. 6 Q. B. 115. (c) Ibid. ; and see Penton v. Davies, 6 B. & C. 224. (d) Per Chambeb, J., in Astley v. Weldon, 2 B. & P. 354. DAMAGES. 309 expenses ; to attend all rehearsals ; to attend the theatre, over hours, on emergencies ; to submit to, and pay all fines established in the theatres ; and generally to conform to all rules. If either party neglected to perform the agreement, he or she should pay to the other £200. Frances Weldon broke her engagement, and refused to continue in Astley's company, and Astley sued her for the £200. The court held that this sum was a penalty, and not liquidated damages ; otherwise, if Weldon had refused to pay a small fine, or Astley had refused to pay one weekly sum of £1 Us. 6d. per week, the one in default would have been liable to pay the whole £200, which was in effect securing a smaller sum by a larger one.(e) 2. One sum is stated to be paid on the breach of any one of a number of stipulations of different degrees of importance. (/) Illustration. Farren agreed with Kemble, the manager of Covent Garden Theatre, to play for four seasons as principal comedian, and in all things to conform to the regulations of the theatre. Kemble was to pay Farren £3 6s. 8^. per night, and Farren was to have one benefit night in each season, on certain specified terms. The agreement also contained a clause, that if either should neglect or refuse to fulfil the agreement, or any part thereof, or any stipulation therein contained, each party should pay to the other £1,000 as hquidated damages, and not as a penalty. Farren refused to act during the second season, and Kemble sued him for the £1,000. The jury gave him a verdict for £750, which was (e) AilUy V. Wddm,, 2 B. & P. 346. (/) Per Lord Colekidge. L. C. J., in Magea v. Lamdl, L. E. 9 C. P. 111. 310 BUBEIC OF THE COMMON LAW. subject to a motion for increasing the damages to £1,000, if the court should be of opinion that the sum mentioned was not a penalty. It was held that the £1,000 was a penalty, and not liquidated damages, as, otherwise, the full sum would have been payable if the plaintiif had omitted to pay the defendant one sum of £3 6s. 8d., or the defendant had refused to conform to some unusual regulation of the theatre. (ol) (a) Kemble v. Farren, 6 Bing. 141. APPENDIX, 29 CAR. II., Oaf. 3. AN ACT for Prevention of Frauds and Perjuries. For prevention of many fraudulent practices, whicli are commonly- endeavoured to be upheld by perjury and subornation of perjury, be it enacted by the King's most excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal, and the Commons, in this present parliament assembled, and by the authority of the same, that, from aud after the four and twentieth day of June which shall be Parol ipasoa in the year of our Lord one thousand six hundred seventy and seven, all gf freehold leases, estates, interests of freehold, or terms of years, or any uncertain l^'''' ^j^^^ interest, of, in, to, or out of any messuages, manors, lands, tenements, or estates at will hereditaments, made or created by livery and seisin only, or by parol, °° ^ ' and not put in writing, and signed by the parties so making or creating the same, or their agents thereunto lawfully authorised by writing, shall have the force and effect of leases or estates at will only, and shall not either in law or equity be deemed or taken to have any other or greater force or effect, any consideration for making any such parol leases or estates, or any former law or usage, to the contrary notwith- standing. II. Except nevertheless all leases not exceeding the term of three except leases years from the making thereof, whereupon the rent reserved to the thveeyel^^ landlord during such term shall amount unto two third parts at least of *"• the full improved value of the thing demised. III. And moreover, that no leases, estates, or interests, either of free- jto leases or hold or terms of years, or any uncertain interest, not being copyhold or frethow'shall customary interest, of, in, to, or out of any messuages, manors, lands, ^^^^^g^*"^ tenements, or hereditaments, shall at any time after the said four and by word, twentieth day of June be assigned, granted, or surrendered, unless it be by deed or note in writing signed by the party so assigning, granting, or surrendering the same, or their agents thereunto lawfully authorised by writing, or by Act and operation of law. IV. And be it further enacted by the authority aforesaid, that from Promises and and after the said four and twentieth day of June no action shall be by pl?jfi? ' brought whereby to charge any executor or administrator upon any 312 APPENDIX, special promise to answer damages out of Ms own estate, or whereby to charge the defendant upon any special promise to answer for the debt, default, or miscarriages of another person, or to charge any person upon any agreement made upon consideration of marriage, or upon any con- tract or sale of land, tenements, or hereditaments, or any interest in or concerning them, or upon any agreement that is not to be performed within the space of one year from the making thereof; unless the agree- ment upon which such action shall be broiight, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith, or some other person thereunto by him lawfuUy authorised. Contracts for sales of goods for ten pounds or more. XVII. And be it further enacted by the authority aforesaid, that from and after the said four and twentieth day of June no contract for the sale of any goods, wares, and merchandises for the price of ten pounds sterling or upwards shall be allowed to be good, except the buyer shall accept part of the goods so sold, and actually receive the same, or give something in earnest to bind the bargain, or in part of payment, or that some note or memorandum in writing of the said bargain be made and signed by the parties to be charged by such contract, or their agents thereunto lawfully authorised. 9 GEO. IV., Cap. 14. Representa- tions of character. AN ACT for rendering a written Memorandum necessary to the Validity of certain Promises and Engagements. [9th May, 1828.] VI. And be it further enacted, that no action shall be brought whereby to charge any person upon or by reason of any representation or assurance made or given concerning or relating to the character, conduct, credit, ability, trade, or dealings of any other person, to the intent or purpose that such other person may obtain credit, money, or goods upon, unless such representation of assurance be made in writing, signed by the party to be charged therewith. 2D Car. 2, 0. 3. VII. And whereas by an Act passed in England in the twenty-ninth year of the reign of King Charles the Second, intituled An Act for the Prevention of Frauds and Perjuries, it is, among other things, enacted, that from and after twenty-fourth day of June, one thousand six hundred and seventy-seven, no contract' for the sale of any goods, wares, and merchandises, for the price of ten pounds sterling or upwards, shall be allowed to be good, except the buyer shall accept part of the goods so sold, and actually receive the same, or give something in earnest to APPENDIX. 313 bind tlie bargain, or in part of payment, or that some note or memoran- dum in writing of the said bargain be made and signed by the parties to be charged by such contract, or their agents thereunto lawfully authorised : And whereas a similar enactment is contained in an Act i^t Aot, 7 Will 3 c 12 passed in Ireland in the seventh year of the reign of King William the ■ > ■ ■ Third : And whereas it has been held, that the said recited enactments do not extend to certain executory contracts for the sale of goods, which nevertheless are within the mischief thereby intended to be remedied ; and it is expedient to extend the said enactments to such executory contracts : Be it enacted, That the said enactments shall extend to all Powers of TBClted A o.f.fi contracts for the sale of goods of the value of ten pounds sterling and extended to upwards, notwithstanding the goods may be intended to be delivered at ^odfono" some future time, or may not at the time of such contract be actually or upwards made, procured, or provided, or fit or ready for delivery, or some Act deuvery be ^ may be rec[uisite for the making or completing thereof, or rendering the "°t™*'i^' same fit for delivery. 1 WILL. IV., Cap. 68. AN ACT for the more effectual Protection of Mail Contractors, Stage Coach Proprietors, and other Common Carriers for Hire, against the Loss of or Injury to Parcels or Packages delivered to them for Conveyance or Custody, the Value and Contents of which shall not be declared to them by the Owners thereof. [23rd July, 1830.] Wheeeas by reason of the frec[uent practice of bankers and others of sending by the public mails, stage coaches, waggons, vans, and other pubhc conveyances by land for hire, parcels and packages containing money, biUs, notes, jewellery, and other articles of great value in small compass, much valuable property is rendered liable to depredation, and the responsibility of mail contractors, stage coach proprietors, and common carriers for hire is greatly increased : And whereas through the frequent omission by persons sending such parcels and packages to, notify the value and nature of the contents thereof, so as to enable such mail contractors, stage coach proprietors, and other common carriers, by due diligence, to protect themselves against losses arisiog from their legal responsibility, and the difficulty of fixing parties with knowledge of notices published by such mail contractors, stage coach proprietors, and other common carriers, with the intent to limit such responsibility, they have become exposed to great and unavoidable risks, and have thereby sustained heavy losses : Be it therefore enacted by the King's most excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal, and Commons, in this present parliament assembled, and by the authority of the same, That from and after the T 314 M-PBNDIX. Mall con- tractors, coacli proprietors, and carriers not to be liable for loss of certain goods above tbe value of 101. unless delivered as such, and increased charge accepted. passing of this Act no mail contractor, stage coach proprietor, or other common carrier by land for hire shall be liable for the loss of or injury to any article or articles or property of the descriptions following; (that is to say,) gold or silver coin of this realm or of any foreign state, or any gold or silver in a manufactured or unmanufactured state, or any precious stones, jewellery, watches, clocks, or time-pieces of any descrip- tion, trinkets, bills, notes of the governor and company of the banks of England, Scotland, and Ireland respectively, or of any other bank in Great Britain or Ireland, orders, notes, or securities for payment of money, English or foreign, stamps, maps, writings, title deeds, paint- ings, engravings, pictures, gold or silver plate or plated articles, glass, china, silks, in a manufactured and unmanufactured state, and whether wrought up or not wrought up with other materials, furs, or lace, or any of them, contained in any parcel or package which shall have been delivered, either to be carried for hire or to accompany the person of any passenger in any mail or stage coach or other public conveyance, when the value of such article or articles or property aforesaid contained in such parcel or package shall exceed the sum of ten pounds unless at the time of the delivery thereof at the office, warehouse, or receiving house of such mail contractor, stage coach proprietor or other common carrier, or to his, her, or their book-keeper, coachman, or other servant, for the purpose of being carried or of accompanying the person of any passenger as aforesaid, the value and nature of such article or articles or property shall have been declared by the person or persons sending or delivering the same, and such increased charge as hereinafter mentioned, or an engagement to pay the same, be accepted by the person receiving such parcel or package. When any parcel shall be 60 delivered, an increased rate of charge may be demanded, i Notice of the same to be afQxed In offices or warehouses. II. And be it further enacted, that when any parcel or package containing any of the articles above specified shall be so delivered, and its value and contents declared as aforesaid, and such value shall exceed the sum of ten pounds, it shall be lawful for such mail contractors, stage coach proprietors, and other common carriers to demand and receive an increased rate of charge, to be notified by some notice affixed in legible characters in some public and conspicuous part of the office, warehouse, or other receiving house where such parcels or packages are received by them for the purpose of conveyance, stating the increased rates of charge required to be paid over and above the ordinary rate of carriage as a compensation for the greater risk and care to be taken for the safe conveyance of such valuable articles; and all persons sending or deliver- ing parcels or packages containing such valuable articles as aforesaid at such office shall be bound by such notice, without further proof of the same having come to their knowledge. Carriers to III. Provided always, and be it further enacted, that when the value aofaiowfedging ^haU have been so declared, and the increased rate of charge paid, or an increased rate, engagement to pay the same shall have been accepted as hereinbefore APPENDIX. HI 5 mentioned, the person receiving such increased rate of charge or accept- ing such agreement shall, if thereto required, sign a receipt for the package or parcel, acknowledging the same to have been insured, which receipt shall not be liable to any stamp duty ; and if such receipt shall 1° case of not be given when required, or such notice as aforesaid shall not have give receipt been affixed, the inail contractor, stage coach proprietor, or other common °Je*^rty°not ' carrier as aforesaid shall not have or be entitled to any benefit or advan- 1^0 be entitled tage anderthis Act, but shall be liable and responsible as at the common this Act. law, and be liable to refund the increased rate of charge. IV. Provided always, and be it enacted, that from and after the first Publication of day of September now next ensuing no public notice or declaration here- iimit tiie tofore made or hereafter to be made shall be deemed or construed to propr^to's limit or in anywise affect the liability at common law of any such mail *">., in respect contractors, stage coach proprietors, or other public common carriers as goods conveyed, aforesaid for or in respect of any articles or goods to be carried and con- veyed by them; but that all and every such mail contractors, stage coach proprietors, and other common carriers as aforesaid shall from and after the said first day of September be liable, as at the common law, to answer for the loss of any injury to any articles and goods in respect whereof they may not be entitled to the benefit of this Act, any public notice or declaration by them made and given contrary thereto, or in anywise limiting such liability notwithstanding. V. And be it further enacted, that for the purposes of this Act every Every oflaoe office, warehouse, or receiving house which shall be used or appointed deemed a by any mail contractor or stage coach proprietor or other such common ^o^'J?"^ carrier as aforesaid for the receiving of parcels to be conveyed as afore- said, shall be deemed and taken to be the receiving house, warehouse, or office of such mail contractor, stage coach proprietor, or other common carrier ; and that any one or more of such mail contractors, stage coach a°^ S^^o"'^ proprietors, or common carrier shall be liable to be sued by his, her, or prietor or their name or names only ; and that no action or suit commenced to ^e uabie to recover damages for loss or injury to any parcel, package, or person be sued, shall abate for the want of joining any co-proprietor or co-partner in such mail, stage coach, or other public conveyance by land for hire as aforesaid. VI. Provided always, and be it further enacted, that nothing in this Not^to rffect Act contained shall extend or be construed to annul or in anywise affect any special contract between such mail contractor, stage coach pro- prietor, or common carrier, and any other parties for the conveyance of goods and merchandizes. VII. Provided also, and be it further enacted, that where any parcel fo*dama™es f or or package shall have been delivered at any such office, and the value J,°=/„™^^»^f and contents declared as aforesaid, and the increased rate of charges extra charges. Y 2 316 APPENDIX. ■been paid, and such parcels and packages shall have been lost or damaged, the party entitled to recover damages in respect of such loss or damage shall also be entitled to recover back such increased charges so paid as aforesaid, in addition to the value of such parcel or packet. KotUng bereln to protect felonious acts. VIII. Provided also, and be it further enacted, that nothing in this Act shall be deemed to protect any mail contractor, stage coach pro- prietor, or other common carrier for hire from liabQity to answer for loss or injury to any goods or articles whatsoever arising from the felonious acts of any coachman, guard, book-keeper, porter, or other servant in his or their e?nploy, nor to protect any such coachman, guard, book-keeper, or other servant from liability for any loss or injury occasioned by his or their own personal neglect or misconduct. 2 & 3 WILL. 4, Cap. 71. Claims to right of oommoii and other profits d prendrCt not to be defeated after thirty years' enjoy- ment by showing the commencement after slxty'i years' enjoy- ment tne right to be absolute, unless had by consent or agi'eement. AN ACT for Shortening the Time of Prescription in certain Cases. [8th August, 1832.] Whereas the expression "time immemorial, or time whereof the memory of man runneth not to the contrary," is now by the law of England iu many cases considered to include and denote the whole period of time from the reign of King Eichard the First, whereby the title to matters that have been long enjoyed is sometimes defeated by showing the commencement of such enjoyment, which is in many cases productive of inconvenience and injustice ; for remedy thereof be it enacted by the King's most excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal, and Commons, in this present parliament assembled, and by the authority of the same, that no claim which may be lawfully made at the common law, by custom, prescription, or grant, to any right of common or other profit or benefit to be taken and enjoyed from or upon any land of our Sovereign Lord the King, his heirs or successors, or any land being parcel of the Duchy of Lancaster or of the Duchy of Cornwall, or of any ecclesiastical or lay person, or body corporate, except such matters and things as are herein specially provided for, and except tithes, rent, and services, shaU, where such right, profit, or benefit shall have been actually taken and enjoyed by any person claiming right thereto without interruption for the full period of thirty years, be defeated or destroyed by showing only that such right, profit, or benefit was first taken or enjoyed at any time prior to such period of thirty years, but nevertheless such claim may be defeated in any other way by which the same is now liable to be defeated ; and when such right, profit, or benefit shall have been so taken and enjoyed as aforesaid for the fuU period of sixty years, the APPENDIX. 317 right thereto shall be deemed absolute and indefeasible, unless it shall appear that the same was taken and enjoyed by some consent or agree- ment expressly made or given for that purpose by deed or writing. IL And be it further enacted, that no claim which may be lawfully in claims o£ made at the common law, by custom, prescription, or grant, to any way "^'^^ °' ^*y or or other easement, or to any watercourse, or the use of any water, the periods to to be enjoyed or derived upon, over, or from any land or water of our andTor^yrars. said Lord the King, his heirs or successors, or being parcel of the Duchy of Lancaster or the Duchy of Cornwall, or being the property of any ecclesiastical or lay person, or body corporate, when such way or other matter as herein last before mentioned shall have been actually enjoyed by any person claiming right thereto without interruption for the full period of twenty years, shall be defeated or destroyed by showing only that such way or other matter was first enjoyed at any time prior to such period of twenty years, but nevertheless such claim may be defeated in any other way by which the same is now liable to be defeated ; and where such way or other matter as herein last before mentioned shall have been so enjoyed as aforesaid for the full period of forty years, the right thereto shall be deemed absolute and inde- feasible, unless it shall appear that the same was enjoyed by some consent or agi'eement expressly given or made for that purpose by deed or uniting. in. And be it further enacted, that when the access and use of light Claim to the to and for any dwelling-house, workshop, or other building shall have enfoyed lor been actually enjoyed therewith for the full period of twenty years S'j^^gfble" without interruption, the right thereto shall be deemed absolute and unless shown indefeasible, any local usage or custom to the contrary notwithstanding, j,y w^ut. miless it shaU appear that the same was enjoyed by some consent or agreement expressly made or given for that purpose by deed or writing. IV. And be it further enacted, that each of the respective periods of Befcre- years hereinbefore mentioned shall be deemed and taken to be the ^^odsto be period next before some suit or action wherein the claim or matter to *g™^gf JJ^® which such period may relate shall have been or shall be brought into suits for claim question, and that no act or other matter shall be deemed to be an y^y^Q^^ relate. interruption, within the meaning of this statute, unless the same shall have been or shall be submitted to or acquiesced in for one year after the party interrupted shall have had or shall have notice thereof, and of the person making or authorising the same to be made. 318 APPENDIX. 8 & 9 VICT. Cap. 106. Feoffments, ■ partitions, ments, and surrenders required (subject to certain excep- tions) to be by AN ACT to amend the Law of Seal Property. [4tli August, 1855.] III. That a feoffment, made after the said first day of October, one thousand eight hundred and forty-five, other than a feoffment made under a custom by an infant, shall be void at law, unless evidenced by deed ; and that a partition, and an exchange, of any tenements or here- ditaments, not being copyhold, and a lease, required by law to be in writing, of any tenements or hereditaments, and an assignment of a chattel interest, not being copyhold, in any tenements or hereditaments, and a surrender in writing of an interest in any tenements or heredita- ments, not being a copyhold interest, and not being an interest which might by law have been created without writing, made after the said first day of October, one thousand eight hundred and forty-five, shall also be void at law, unless made by deed : Provided always, that the said enactment so far as the same relates to a release or a surrender shall not extend to Ireland. Wlien the reversion on a lease is gone tlie next estate to be deemed tlie reversion. IX. That when the reversion expectant on a lease, made either before or after the passing of this Act, of any tenements or hereditaments, of any tenure, shall, after the said first day of October, one thousand eight hundred and forty-five, be surrendered or merge, the estate which shall for the time being confer as against the tenant under the same lease the next vested right to the same tenements or hereditaments, shall, to the extent and for the purpose of preserving such incidents to, and obliga- tions on, the same revision, as, but for the surrender or merger thereof, wouhl have subsisted, be deemed the reversion expectant on the same lease. 17 & 18 VICT. Cap. 31. Company to be liable for neglect or default in the carriage lit goods, not- withstanding notice to the contrary. AN ACT for the better Regulation of the Traffic on Railways and Canals. [10th July, 1854] VII. Every such company as aforesaid shall be liable for the loss of or for any injury done to any horses, cattle, or other animals, or to any articles, goods, or things, in the receiving, forwarding, or delivering thereof, occasioned by the neglect or default of such company or its servants, notwithstanding any notice, condition, or declaration made and given by such company contrary thereto, or in anywise limiting such liability ; every such notice, condition, or declaration being hereby declared to be nuU and void : Provided always, that nothing herein APPENDIX. 319 contained shall be construed to prevent the said companies from, making sudi conditdons -with respect to the receiving, forwarding, and delivering of anv of the said animals, articles, goods, or things, as shall be adjudged by the court or judge before whom any question relating thereto shall be tried to be just and reasonable : Provided always, that no greater Company not damages shall be recovered for the loss of or for any injury done to any i^yond*a'^ of such animals, beyond the sums hereinafter mentioned : (that is to j™Jt«d?™o™it say,) tor any horse, htty pounds ; for any neat cattle, per head, fifteen ™ie8s the pounds ; for any sheep or pigs, per head, two pounds ; unless the person andextra p^ay- sending or delivering the same to such company shall, at the time of '°™*™^*^- such delivery, have declared them to be respectively of higher value than as above mentioned ; in which case it shall be lawful for such company to demand and receive by way of compensation for the increased risk and care thereby occasioned, a reasonable per-centage upon the excess of the value so declared above the respective sums so limited as aforesaid, and which shall be paid in addition to the ordinary rate of charge ; and such per-centage or increased rate of charge shall be notified in the manner prescribed in the statute Eleventh George Fourth and First William Fourth, chapter sixty-eight, and, shall be binding upon such company in the manner therein mentioned : Provided also, that the proof of value proof of the value of such animals, articles, goods, and things, and the Mrson olSming amount of the injury done thereto, shall in all cases lie upon the person compensation. claiming compensation for such loss or injury : Provided also, that no tract to be special contract between such company and any other parties respecting ai™^® unless the receiving, forwarding, or delivering of any animals, articles, goods, or things as aforesaid shall be binding upon or affect any such party unless the same be signed by him or by the person delivering such animals, articles, goods, or things respectively for carriage : Provided also, that Saving of nothing herein contained shall alter or affect the" rights, privileges, or n Geo. i, and liabilities of any such company under the said Act of the Eleventh ^ ^''^^ *■ "• *^ Geoi^e Fourth and First William Fourth, chapter sixty-eight, with respect to articles of the descriptions mentioned in the said Act. 19 & 20 VICT. Cap. 97. AN ACT to amend the Laws of England and Ireland affecting Trade and Commerce. [29th July, 1856.] III. No special promise to be made by any person after the passing of consideration this Act to answer for the debt, default, or miscarriage of another person, SeSt'appear being in writing, and signed by the party to be charged therewf th oi bj writing, some other person by him thereunto lawfully authorised, shall be deemed invalid to support an action, suit, or other proceeding to charge the person by whom such promise shall have been made, by reason only that the consideration for such promise does not appear in writing, or by necessary inference from a written document. 320 APPENDIX. Inkeeper not to be liable for loss, &o., beyond £30, except in cer- tain cases. 26 & 27 VICT. Cap. 41. AN ACT to amend the Law respecting the Liability of Innkeepers, and to prevent certain Frauds upon them. [13th July, 1863.] Whebeas it is expedient to amend the law concerning the liability of innkeepers in respect of the goods of their guests in manner hereinafter mentioned : Be it therefore enacted by the Queen's most excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal, and Commons, in this present parliament assembled, and by the authority of the same, as follows ; (that is to say,) 1. No innkeeper shall, after the passing of this Act, be liable to make good to any guest of such innkeeper any loss of or injury to goods or property brought to his inn, not being a horse or other live animal, or any gear appertaining thereto, or any carriage, to a greater amount than the sum of thirty pounds, except in the following cases ; (that is to say,) (1.) Where such goods or property shall have been stolen, lost, or injured through the wilful act, defatilt, or neglect of such inn- keeper or any servant in his employ : (2.) Where such goods or property shall have been deposited expressly for safe custody with such innkeeper : Provided always, that in the case of such deposit it shall be lawful for such innkeeper, if he think fit, to require as a condition of his liability, that such goods or property shall be deposited in a box or other recep- tacle, fastened and sealed by the person depositing the same. Obligation to H- If any innkeeper shall refuse to receive for safe custody, as before orKuesiBior^^ mentioned, any goods or property of his guest, or if any such guest safe custody. shall, through any default of such innkeeper, be unable to deposit such goods or property as aforesaid, such inkeeper shall not be entitled to the benefit of this Act iu respect of such goods or property. Notice of law, &o., to be conspicuoitsly exhibited, III. Every innkeeper shall cause at least one copy of the first section of this Act, printed in plain type, to be exhibited in a conspicuous part of the hall or entrance to his inn, and he shall be entitled to the benefit of this Act in respect of such goods or property only as shaU be brought to his inn while such copy shall be so exhibited. Interpretation of terms. IV. The words and expressions hereinafter contained, which in their ordinary signification have a more confined or a difi'erent meaning, shall in this Act, except where the nature of the provision or the context of APPENBIX. 321 the Act shall exclude such construction, be interpreted as follows ; that is to say, the word " inn " shall mean any hotel, inn, tavern, public- house, or other place of refreshment, the keeper of which is now by law responsible for the goods and property of his guests ; and the word "innkeeper" shall mean the keeper of any such place. 28 & 29 VICT, Cap. AN ACT to amend the Law of Partnership. [5th July, 1865.] Whereas it is expedient to amend the law relating to partnership : Be it therefore enacted by the Queen's most excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal, and Com- mons, in this present parliament assembled, and by the authority of the same, as follows : I. The advance of money by way of loan to a person engaged or about The advance to engage in any trade or undertaking upon a contract in writing with mS,°^aitT such person that the lender shall receive a rate of interest varying with receive a the profits, or shall receive a share of the profits arising from carrying not to consti- on such trade or undertaking, shall not, of itself, constitute the lender a pawner. '^" ^'^ ^ partner with the person or the persons carrying on such trade or under- taking, or render him responsible as su.ch. II. No contract for the remuneration of a servant or agent of any The remunera- person engaged in any trade or undertaking by a share of the profits of &™by sfare^ such trade or undertaking shall, of itself, render such servant or agent °^ ^''"5*1?°' responsible as a partner therein, nor give him the rights of a partner, partners. III. No person being the widow or child of the deceased partner of a certain trader, and receiving by way of annuity a portion of the profits made by ^° "J, ™ such trader in his business, shall, by reason only of such receipt, be p|^^g^g deemed to be a partner of or to be subject to any liabilities incurred by such trader. IV. No person receiving by way of annuity or otherwise a portion of Beceipt of the profits of any business, in consideration of the sale by him of the sideration of goodwill of such business, shall, by reason only of such receipt, be ^^t "o'mato'"' deemed to be a partner of or be subject to the liabilities of the person the seller a carrying on such business. V. In the event of any such trader as aforesaid being adjudged a J^Sp'toy, bankrupt, or taking the benefit of any Act for the reUef of insolvent &o,^end^r^not debtors, or entering into an arrangement to pay his creditors less than other creditors. 322 APPENDIX, twenty shillings in the pound, or dying in insolvent circumstances, the lender of any such loan as aforesaid shall not be entitled to recover any portion of his principal, or of the profits or interest payable in respect of such loan, nor shall any such vendor of a goodwill as aforesaid be entitled to recover any such profits as aforesaid until the claims of the other creditors of the said trader for valuable consideration in money or money's worth have been satisfied. InteiiiretaUon VI. In the construction of this Act the word "person" shall include a partnership firm, a joint stock company, and a corporation. irarriea woman to be capable of holding property and contracting as a feme sole. 45 & 46 VICT. Cap. 75. The Married Women's Property Act, 1882. AN ACT to Consolidate and Amend the Acts relating to the Property of Married Women. [18th August, 1882.] 1. (1) A married woman shall, in accordance with the provisions of this Act, be capable of acquiring, holding, and disposing by will or otherwise, of any real or personal property as her separate property, in the same manner as if she were a feme sole, without the intervention of any trustee. (2) A married woman shaU be capable of entering into and rendering herself liable in respect of and to the extent of her separate property on any contract, and of suing and being sued either in contract or in tort or otherwise in all respects as if she were a. feme sole, and her husband need not be joined with her as plaintiff or defendant, or be made a party to any action or other legal proceeding brought by or taJsen against her ; and any damages or costs recovered by her in any such action or proceeding shall be her separate property ; and any damages or costs recovered against her in any such action or proceeding shall be payable out of her separate property and not other- (3) Every contract entered into by a married woman shaU be deemed to be a contract entered into by her with respect to and to bind her separate property, unless the contrary be shown. (4) Every contract entered into by a married woman with respect to and to bind her separate property shall bind not only the separate property she is possessed of or entitled to at the date of the contract, but also all separate property which she may thereafter acquire. APPENDIX. 323 (5) Every married woman carrying on a trade separately from her husband shall, in respect of her separate property, be subject to the bankruptcy laws in the same way as if she were a, feme 2. Every woman who marries after the commencement of this Act Property oi a ,111-iij.i ij_iTii 1 woman married shall be entitled to nave ana to hold as her separate property and to after the Act to dispose of in manner aforesaid all real and personal property which ^ a /em^'soie!^^ shall belong to her at the time of marriage, or shall be acquired by or devolve upon her after marriage, including any wages, earnings, money, and property gained or acquired by her in any eniployment, trade, or occupation in which she is engaged, or which she carries on separately from her husband, or by the exercise of any literary, artistic, or scientific skiU. 5. Every woman married before the commencement of this Act shall Property •' acquired after he entitled to have and to hold and to dispose of in manner aforesaid as tlie Act by a her separate property all real and personal property, her title to which, MoretheAot whether vested or contingent, and whether in possession, reversion, or {o ^^ ^^^f •>? remainder, shaE. accrue after the commencement of this Act, including sou. any wages, earnings, money, and property so gaired or acquired by her as aforesaid. 53 & 54 VICT. Cap. 64. Directors Liability Act, 1890. [18th August, 1890.] 1. This Act may be cited as " The Directors Liability Act, 1890." short title. 2. This Act shall be construed as one with the Companies Acts, Construction. 1862 to 1890. 3. (1) Where, after the passing of this Act, a prospectus or notice Liability for invites persons to subscribe for shares in or debentures or pro^^tus."' debenture stock of a company, every person who is a director of "the company at the time of the issue of the prospectus or notice, and every person who having authorised such naming of him is named in the prospectus or notice as a director of the company, or as having agreed to become a director of the company either immediately or after an interval of time, and every promoter of the company and every person who has authorised the issue of the prospectus or notice, shall be liable to pay compensation to all persons who shall subscribe for any 324 APPENDIX. shares, debentures or debenture stock on the faith of such prospectus or notice for the loss or damage they may have sustained by reason of any untrue statement in the prospectus or notice, or in any report or memoranduni appearing on the face thereof, or by reference incorporated therein or issued therewith, unless it is proved — ■ (a) With respect to every such untrue statement not pur- porting to be made on the authority of an expert, or of a public official document or statement, that he had reasonable ground to believe, and did up to the time of the allotment of the shares, debentures, or debenture stock, as the case may be, beKeve that the statement was true ; and (5) With respect to every such untrue statement purporting to be a statement by or contained in what purports to be a copy of or extract from a report or valuation of an engineer, valuer, accountant, or other expert, that it fairly represented the statement made by such engineer, valuer, accountant, or other expert, or was a correct and fair copy of or extract from the report or valuation : Provided always, that notwithstanding that such untrue statement fairly represented the statement made by such engineer, valuer, accountant, or other expert, or was a correct and fair copy of an extract from the report or valuation, such director, person named, promoter, or other person, who authorised the issue of the prospectus or notice as aforesaid, shall be liable to pay compensa- tion as aforesaid, if it be proved that he had no reason- able ground to believe that the person making the statement, report, or valuation, was competent to make it ; and (c) With respect to every such untrue statement purporting to be a statement made by an official person, or con- tained in what purports to be a copy of or extract from a public official document, that it was a correct and' fair representation of such statement, or copy of or extract from such document. Or, unless it is proved that having consented to become a director of the company, he withdrew his consent before the issue of the prospectus or notice, and that the prospectus or notice was issued without his authority or conseat, or that the prospectus or notice was issued without his knowledge or consent, and that on becoming aware of its issue, he forthwith gave reasonable public notice that it was issued without his APPENDIX. 325 knowledge or consent, or that after the issue of such prospectus or notice, and before allotment thereunder, he, on becoming aware of any untrue statement therein, withdrew his consent thereto, and caused reasonable public notice of such with- drawal, and of the reason therefor, to be given. (2) A promoter in this section means a promoter who was a party to the preparation of the prospectus or notice, or of the portion thereof containing such untrue statement, but shall not include any person by reason of his acting in a professional capacity for persons engaged in the promotion of the company, (3) Where any company existing at the passing of this Act which has issued shares or debentures, shall be desirous of obtaining further capital by subscriptions for shares or debentures, and for that purpose shall issue a prospectus or notice, no director of such company shall be liable in respect of any statement therein, unless he shall have authorised the issue of such prospectus or notice, or have adopted or ratiiied the same. (4) In this section the word "expert" includes any person whose profession gives authority to a statement made by him, 4 WJiere any such prospectus or notice as aforesaid contaius the indemnity name of a person as a director of a company, or as having agreed to ^^per8o™a3 become a director thereof, and such person has not consented to become been improperly a director, or has withdrawn his consent before the issue of such pros- director, pectus or notice, and has not authorised or consented to the issue thereof, the directors of the company, except any without whose know- ledge or consent the prospectus or notice was issued, and any other pereon who authorised the issue of such prospectus or notice shall be liable to indemnify the person named as a director of the company, or as having agreed to become a director thereof as aforesaid, against all damages, costs, charges, and expenses to which he may be made liable by reason of his name having been inserted in the prospectus or notice, or iu defending himself against any action or legal proceedings brought against him in respect thereof. 6. Every person who by reason of his being a director, or named as a Contribution director, or having agreed to become a director, or of his having autho- aireotors, &c rised the issue of the prospectus or notice, has become liable to make any payment under the provisions of this Act, shall be entitled to recover contribution, as in cases of contract, from any other person who, if sued separately,, would have been liable to make the same payment. INDEX OF EXAMPLES. PAGE Abuse, mere, not actionable 250 Agent, when wife may be 131 Agreement for sale of goods 57 Annoyance amounting to a nuisance 205 Authority, when implied by custom, 1, 2, 3 119 Bailment 81 Bill of Exchange 140 Carrier, to whom Hable 89 Commodatum 83 Condition precedent, in case of sales 68 Conditional sale of goods 56 Contract, executed 16 executory 16 implied 16 in restraint of marriage ... -. 127 misjoinder of parties 9 opposed to public policy ... 30 simple 20 Contribution to lawful game ... 33 Contributory neghgence, 1, 2, 3, 4, 5, 6. 225 Covenants, dependent 159 independent 160 to repair, tenant's liability under. 163 Custom of merchants 2 Customs, particular or local 2 Damages, general, in contract, 1, 2, 3, i, 5, 6 293 in tort, 1, 2, 3, 4, 5 295 Dependent covenant 159 328 INDEX OF EXAMPLES. Depositum ... Distress, wrongful . Dominant tenement Estoppel in pais Executed contract Executory contract Fixtures, tenants' Forfeiture of lease waiver of Guarantie, what Illegal consideration Illegal distress Implied contract ••• Independent covenants ■ Land, sale of an interest in Lex non scripta Locatio operis faciendi Mandatum Marriage, contracts in restraint of Merger of contract of specialty in contract of record simple contract in contract of specialty Misjoinder of parties to a contract Mutuum Negligence, what' contributory, what ... Negligent personal conduct. ■ • use of real property use of chattels Notice to quit Nuisance, public, when actionable.. PAGE . 82 . 218 . 177 . 167 . 16 . 16 , 197 , 169 , 169 95 , 31 , 218 . 16 . 160 , 41 1 85 82 127 18 19 , 168 9 , 83 . 224 . 225 . 264 . 211 . 224 . 157 . 208 INDEX OF EXAMPLES. 329 Particular customs Privity, what ... Promise, a bare, not under seal, void implied, where consideration executory not implied where consideration executed, with- out previous request Promissory note Public nuisance, when actionable Public policy, contracts opposed to Quit, notice to Request, when implied Sale of goods, agreement for conditional Servient tenement Servitude Slander, when actionable Specific performance, when granted Surrender by estoppel Taskwork, contract of Tenancy at will, ^ow impliedly terminated Tenancy o^ sufferance, what Tenant's fixtures Torts founded on contract Trademark which has become publicijwris Usage Vituperation, mere, not actionable" Waiver of forfeiture of lease Warranty Written contract defeating the Prescription Act PAGE 2 20 37 23 23 143 208 30 157 , 24 , 57 , 56 , 177 , 177 . 250 . 35 . 167 . 77 , 158 , 158 , 197 , 51 , 271 1 250 169 64 49 INDEX OF ILLUSTRATIVE OASES. PAGE Abandonment of servitude 194 Abatement of nuisance 204 Acceptance of contract, actual, 1, 2 43 constructive, 1, 2 44 Accord and satisfaction 27 Actual receipt, constructive 44 Admission defeating the Statute of Limitations- conditional promise becoming absolute 15 when insufficient ... ... ... ... ... 15 Agent, cannot dispute Ms principal's title 110 exceeding his authority ... ... ... ... 110 having an interest may sue ... ... ... 120 liability of, where there is no principal 120 liabiUty of, for representing that he had authority 121 not liable when agency notorious 122 receipt by, is receipt of principal ... ... ... 123 receiving money for third party 123 rights of, against principal 119 signing contract in his own name, 1 121 ,, ,, ,, 2 ... ... 122 where principal is undisclosed, may sue 120 Alteration of negotiable instruments 152 Agreement for sale of goods 67 Apparent possession under Bills of Sale Act 62 Apprentice, permanent illness of 74 Appropriation, on sale of goods, what 58 USTDEX OF ILLUSTRATIVE OASES. 331 PAGE Authority, express, includes implied 116 implied by conduct of principal 118 , . implied by course of dealing 117 of agent notoriously limited 119 of woman living as wife to pledge credit of apparent husband 131 ^Q^QQj duty oi, in cd.se oi locatio operis faciendi 85 duty of , in case of Zocaiio rei 85 Bailor, duty of, in case of Zocaito rei 84 Bill of Exchange, onus of proof that value has been given for, in what ease lies on holder 146 Brokerage, marriage, contracts of are void 128 93 Carrier, liability of, at end of transit liability of , inherent vice in the thing bailed ... 86 when liable for passengers' personal luggage ... 90- Caveat emptor, 1, 2 68 Condition precedent in case of sale, express 69 implied ... ' ... 69 Consideration, 1, 2 21, 22 expressed in a vrritten memorandum 47 immoral ... ... ••• •■■ •■• ••• "^ Contract, executed, when promise supported by previous request 23 in restraint of trade, 1, 2 31 of record acts as an estoppel 18 of task work or of sale, distinction between ... 77 under duress •■ •■■ 29 voidable through fraud, election to hold it void... 29 Contribution to lawful game, what 33 Contributory negligence, when not a defence, l, 2, 3 ... 225, 226, 227 Conversion, 1, 2, 3, 4 214,215 act 'of, cannot be purged 215 Corporation, contract by, not under seal, when vaUd, ...1,2, 8,4, 5 ..... 38,39,40 z 2 332 INDEX OF ILLUSTRATIVE CASES. PAGE Covenant entered into with agent Ill not discharged by written license 27 personal 161 Of uelty justifying wife in leaving husband 136 Custom to go upon the land of another 192 to take a profit in the land, when it can vest in a class 193 Damage feasant, when things may not be taken ... 203 Damage, exemplary 293 when in the contemplation of the parties, 1, 2, 3, 4 300, 301, 302 liquidated 306 remoteness of, 1, 2, 3, 4, 5, 6, 7, 8 300, 301, 302 303, 304 special, 1, 2, 3, 4, 5, 6 296, 297, 298, 299 Damnum sine injuria 3, 50 Dangerous premises liability of owner of, to persons on lawful business 207 liability of owner of, to a bare Ucensee 207 Dangerous thing kept at owner's peril 204 Delivery of goods 58 Detinue founded on tort 6 Discharge of contracts under seal after breach, when possible, by accord and satisfaction 26 before breach, by deed 26 Dismissal of servant, reasons for, l, 2, 3 73 Duress, contracts made under 29 Election to hold contract void by reason of fraud ... 29 Equitable waste 197 Estoppel by contract of record 18 Evidence, see "Paeoii evidence." Executed contract within Statute of Frauds, need not be in writing 42 INDEX OF ILLUSTRATIVE CASES. 333 PAGE False representation not fraudulent • 70 Father, right of, to custody of infant child 288 when the court will interfere with the right of 289 Faults, sale with all 71 Finder of chattel has good title against all but the true owner „ ... 216 Forfeiture of conventional servitude 194 of lease, waiver of 169 Forgery of negotiable instruments 153 Fraud, optional to hold void contract induced by ... 29 Fraudulent agent, signature of, when it will not bind principal 267 Fraudulent misrepresentation at sale 71 liabiUty of one who makes, though not personally interested 265 Fraudulent misrepresentation may be partly verbal under Lord Tenterden's Act 266 may be made by conduct 268 not made directly 268 of third party to induce a marriage 127 when made to the public 268 Furnished house, warranty that it is habitable 164 Gaming contract, recovery of deposit from stakeholders 33 Grant of servitude impUed, 1, 2, 3, 4, 5, 184, 185, 186, 187 lost, essentials to claim under 1, 2, 3, 4, 5 ... 187 188, 189, 190 lost, evidence in rebuttal of 190 more than a license 184 Guarantie, essentials of, 1, 2, 3 95, 96 rights and liabilities of the sureties, 1, 2, 3, 4 98, 99, 100 when may be revoked 98 when surety discharged, 1, 2, 3 96, 97, 98 334 INDEX OF ILLIJSTEATIVE OASES. PAGE Hiriiig for a year 72 Husband, misconduct of, justifying his wife's leaving him 136 Illness, permanent, of apprentice 74 Immoral conduct of servant, ground for dismissal ... 73 Immoral consideration avoiding a contract 30 Implied grants of servitudes, 1, 2, 3, 4, 5 186, 187, 188, 189 Indemnification of agent by principal 109 Infirmity of title to bill of exchange, implied notice of 147 Inherent vice in thing bailed 86 Jjy unction to restrain breach of contract 36 Injuria sine damno 3 Injury to child of tender years — master and servant ... 287 Innkeeper, liability of, under Innkeepers Act 87 Land, sale of an interest in, what 41 License not a grant 184 Licensee, liability of owner of dangerous premises to ... 207 Lien, vendor's right of, revived by insolvency of vendee, 1, 2, 3 ... • 60, 61 Limitation, Statue of, how defeated 15 Liquidated damages 306 Locatio opens faciendi, duty of bailee in case of ... 85 Locatio rei, duty of bailee in case of 85 bailor ,, 84 Luggage, personal, of passenger in railway carriage ... 90 Malice, what 247 in fact destroys privilege 253 Mandamus for breach of contract 36 Market overt, sale of goods in 53 Marriage, brokerage contract respecting 127 not part performance of contract under Statute of Frauds 128 Master, has a right of action for enticing away his servant 285 has. a right of action for torts committed against , his servant, 1, 2 285, 286 INDEX OP 1LIT7STBATIVB OASES. 335 Master — continued. page when he may dismiss servant without notice, 1, Af o ... ••• ... ... ... ... to when liable for injuries to servant in course of his employnietit, 1, 2, 3 ... ... 281, 282 when not liable for injuries to servant in course of his employment 282 when liable for torts committed by servant, 1, 2, 3, 4, 5 ... • 276, 277, 278 Material terms in written contract, 1, 2, 3 ... 46, 47 Memorandum in writing, essentials to a valid, under Statute of Frauds, 1, 2, 3, 4, 5, 6 ... 46, 47, 48 Memorandum in writing, several documents may con- stitute 48 Misrepresentation, fraudulent 70 not fraudulent does not avoid sale 71 Mistake, when contract will be avoided on account of ... 30 Names of parties in memorandum in writing 46 Natural servitudes, 1, 2, 3, 4 178, 179 Necessity, way of 185 Negligence by bailee in cases of locatio operis faciendi ... 85 by bailee in cases of Zocaizo rei 85 by bailor „ „ 84 of drawer of negotiable instrument 153 Negotiable instrument, immaterial alteration in ... 152 Notice of action . •••245 instrument ... 147 72 204 205, 206, 207 of infirmity of title to negotiable of termination of yearly hiring Nuisance, abatement of examples of, 1, 2, 3, 4, 5, 6 what is no defence to an action for, 1, 2, 3 209, 210 Operation of law, surrender by 1, 2 166,167 Original doer of wrongful act is responsible ... ... 304 even when the wrongful interference of third party has caused the mischief 305 336 INDEX OF ILLUSTEATIVB OASES. PAGE Parol agreement for a lease, when specific performance of, granted 1^9 Parol evidence may be given to charge a new party on a written contract ... ... ... ... 116 may not be given to discharge an apparent party to a written contract ... ... ... ••• 116 Part performance of a contract under Statute of Frauds. marriage is not 128 Penalties, 1, 2 308,309 Personal covenant 161 Personal luggage, liability of railway company for ... 90 Presumption of lost grant may be rebutted 190 of wife's authority to pledge husband's credit may be rebutted, 1, 2, 3, 4 ... 132, 133, 134 of wife's authority to pledge husband's credit, when irrebuttable ... ... ... ... 136 Price 47 Principal, when may revoke his authority to agent, 1, 2 107, 108 when he must indemnify his agent 109 PrivUegei occasions, 1, 2, 3, 4, 6, 6, 7, 8, 9, 10, 11 ... 250, 254, 255, 256, 257, 258, 269 Promise binding, when consideration is executed and there is a previous request 23 impHed, only co-extensive with the consideration 24 Property in goods, when retained after appropriation on an agreement for sale 58 Quantum meruit, 1, 2, 3, 4, 5, 6 77, 78, 79 Railway Company forwarding goods by other lines ... 93 Ratification by principal of agent's contract, 1, 2, 3, 4, 5 113, 114, 115 Reasonable cause 248 Receipt, constructive actual, 1, 2 44,45 Religion of child, ante-nuptial agreement by father as to, void 291 INDEX OF ILLUSTEATIVB OASES. 337 PAGE Representation, false 71 fraudulent 72 Request, where implied, 1, 2 24,25 Sale of goods, agreement for 57,58 in market overt, title to 53 not in market overt, title to, 1, 2 54 conditional, 1, 2 56, 57 unconditional, vyhat constitutes 55 with all faults 71 Sample, sale by, v?arranty under 67 Servant of tender years, injury to 287 Servitude, abandonment of 194 forfeiture of, conditional 195 natural, 1, 2, 3, 4 178, 179 Signature of party to be charged on written contract ..." 48 Slander, when actionable, 1, 2, 3 250, 251 Special contract uncompleted, 1, 2, 3, 4, 5, 6 ... 77, 78, 79 Specific performance of parol agreement for lease . . . 159 when granted ... ... ... ... ... 35 Stoppage in transitu 61 Sub-agent, to whom liable 108 Sub-contractor, negligence of, when employer liable for, 1, 2, 3 279, 280 Surety may revoke guarantie 98 rights and duties of, 1, 2, 3, 4 98,99,100 when discharged, 1, 2, 3 96, 97, 98 Surrender by operation of law, 1, 2 166, 167 Task-work, contract of Tenancy for less than a year, how implied Tenant iu possession under a void lease, for what liable Title to goods not purchased in market overt, 1 purchased in market overt Trade, contracts in restraint of, 1, 2 Trademark 76 156 155 54 53 31 270 338 INDEX OP ILLUSTRATIVE OASES. PAGE Trespass ab initio • 201 Trespass, distinguished from canversion 213 to land justifiable, if to abate a nuisance ... 202 Unconditional sale 55 Underlease, not affected by surrender of lease ... ... 168 Undisclosed principal, bound by the equities which are binding on his agent 113 liabilities of, 1, 2, 3, 4 114,115 may repudiate or adopt a contract made by his agent without his authority 113 when he may take the benefit of a contract made by his agent 112 Unskilful work 76 Value given for bill, of exchange ; when burthen of proof lies on the holder ... ... ... ... 146 Void lease, liability of tenant in possession under ... 155 Waiver of forfeiture of lease 169 Warranty, express, what 64 implied, of title, 1, 2 66 implied, of quality, 1, 2, 3, 4 66, 67 implied, on sale by sample 67 Waste, equitable 197 Way of necessity 185 Wifej when she has authority to pledge her husband's credit, 1, 2, 3, 4, 5, 6 ... 131, 133, 134, 135, 136 authority may be countermanded without notice to tradesman, 1, 2 132 cruelty to, by husband, justifying refusal to live withJiim 137 Wilful disobedience to orders, by servant 73 Witness, privileged 259 Work, unskilful 76 Written discharge- of covenant before breach, effect of 26 Year contract not to be completed within a ... ... 42 Yearly hiring, termination of ........ 72 Yearly tenancy, liow implied 156 GENERAL INDEX. PAGE Abandonment, notice of, in case of constructive total loss 103 of servitude I94 Acceptance of goods, v^hat... ... ' 43 of bill of exchange, 148 presentment for 147 waiver of 149 for honour : or supra protest 151 Acceptor, what 139 Access of mother to child, the court will grant 290 Accidental fire ... 212 Accord and satisfaction,' what 27 Account stated, an I.O.U. evidence of 143 Acknowledgment of a debt, which will bar the Statute of Limitations " 15 Actions, forms of ... " ... ■ ... ' 5 Actual receipt of goods 43 Agent, what 107 rights and liabilities of 107,120 when wife can bind her husband as 131 when signature of fraudulent binds principal . . . 267 Agreement for a sale 57 as to religion of child by father, when void ... 291 Agricultural Holdings Act, notice to quit under ... 166 tenant's fixtures under 199 Alteration of bills and notes 152 Apologies, as defences, in^ cases of defamation 261 Apparent possession 62 Apprenticeship, contract of ... 74 how terminated ... ... 74 powers of Courts of ^ Summary Jurisdiction as to 75 340 GENERAL INDEX. PAGE Appropriation of goods on contract for sale 58 reservation of property in goods after 58 Arrest, when justifiable , ... 234 Assignee of lease may sue lessor and his assignees ... 11 liability of, on covenants in lease ... 161 may be sued by reversioner thereon ... 11 of life and marine policies may sue on them '... 10 Assignment of debt 11 of right of action 9 of policies, marine 101 fire 104 life 105 Assignor of lease, rights and liabilities of 162 Assumpsit, what 6 Authority to agent, express 116 implied 117 to wife to pledge her husband's credit 131 Average, general 103 particular 104 Avowry, what 223 Bailments, what 81 different kinds of 81 duties and liabilities of bailor and bailee in different cases 82 Bailee, negligence. of 231 Bank note, what 143 Barratry, what 101 Battery, what 233 when justifiable 233 Bets, cannot be recovered 32 Bill of exchange, what 139 alteration of.., 152 characteristics of 140,142 forgery of 153 parties to 139 their liabilities under 140,142 GENBBAL INDEX. BiLii OF 'ExcsASQ^— continued. presentment of, for acceptance ... payment suspension of, see " Eenewal." Bills of lading Bills of sale, when void Bills of Sale Act Amendment Act, 1882 Breach of contract, remedies for Brokerage, marriage. Calls on shares Carriers Act ... Carriers, who are by land by water by land and water restrictive legislation as to rights and liabilities of liable as insurers Case, action on the, what Cattlegates and cowgrasses Caveat emptor Champerty, what Cheque on a banker, what crossed how it differs from a bill of exchange ...' liability of bankers on Children, parents' dominion over Class, a, may claim an easement by custom may not claim a profit a prendre exception Coals, sale of, by measure, illegal Cognizance, what Commodatum, what Common, rights of appendent appurtenant in gross... 341 PAGE . 147 . 149 . 153 . 63 . 62 . 35 . 127 . 19 . 88 . 87 . 91 . 92 . 92 , 88 , 89 . 86 7 , 183 , 68 , 31 , 143 , 144 , 143 , 144 , 288 , 192 , 193 . 194 , 31 223 . 83 , 181 , 181 , 182 , 183 342 GENEEAL INDEX. PAGiE Common employment, what . 283 Common law, what 1 Compa,nieS being wound up, their choses in action assignable . 11 Condition precedent, sale of goods on, what 68 express . 69 implied . 69 Conditional sale 56 Consideration for bills of exchange 145 when must be provec 146 illegal ... " 31 immoral 30 in a written contract 46 Constable, ^hen may arrest without a warrant 241 Constructive total loss ... 103 Contracts by and with corporations 38 discharge of 27 generally 17 how vitiated 30 in relation to marriage 127 opposed to public policy 30 of apprenticeship 74 of hiring and service 72 of task work 75 requisites of simple 20 special, uncompleted 77 when assignable' " 9,10,11 which must be under seal 37 in writing 41 exceptions 42 who can sue and are liable upon 8, 9,10 Conventional servitudes 180 how claimable 183 how extinguished . 194 Conversion, what is ... . 213 act of, cannot be jpurged . 215 GENERAL INDEX. 343 PAGE Corporations may sue and be sued 10 how contracts by and with are authenticated ... 38 Costs, agreement as to, between solicitor and client ... 49 of defending an action, when recoverable as special damage 299 Covenant, action on, what 5 Covenants, dependent ... 159 lessee's, commonly inserted in leases 162 independent 160 personal 161 real 160 running with the land ... ... ... ... 160 to repair 163 usual; what are 159 Criminal information 262 Crinunal proceedings in cases of defamation 262 Crossed cheques ■ 1^^ Cruelty of husband justifying his wife's leaving him ... 137 Custody of children 288 Customs, general of merchants ... ... ... ... ... 2 particular "or local ... ... ... ... ... 2 essentials of ... ... ... 2 to go on the land of anothei: 192 Damage, what by rioters Damage feasant remedies in cases of trespass Damages 1 3 202 202 202 293 actual 294 exemplary ^^^ general : Uquidated 3°^ 299 prospective .-• ••••1 ... 296 special Damnum sine injuria 344 GENERAL INDEX. PAGE Days of grace l^^ Death, injuries resulting in 227 liability of shipowners for ... 228 Debt, action in, what 5 Dedication of right of way to the public 180 Deed, what 37 Defamation of character ... 250 questions for the jury in cases of 262 judge in cases of 262 Del credere agent, what 107 Delivery of goods Demise, what Depositum, what Determination of tenancy Detinue, what founded on tort 59 155 81 165 6 6 Devise, servitude may be created by 184 Dice, illegal 34 Directors' Liability Act, 1890 269 Discharge of contracts, specialty 26 simple I 27 Disclaimer of lease 170 by trustee in bankruptcy 171 Dishonour, notice of 161 Disability, persons under 14 Distrainor, duties of in ease of animals damage feasant... 203 Distress, what 171 proceedings in 171 removal of goods to evade 172 what goods privileged from 220 wrongful 218 remedies for 221 Divorce court, jurisdiction over children of divorced parents 290 Duress, its effect on contracts made under 29 GENEEAL INDEX. 345 PAGE Easements 180 essentials of 181 Ejectment at common law .. . 173 under Common I^rw Procedure Act, 1852 ... 174 County Court Act, 1888 174 Emblements 164 Employers Liability Act, 1880 283 Enticing away servant 285 Equitable waste 197 Equities binding on agent are binding on undisclosed principal 112 Escrow, what 37 Estoppel, contract of record acts as 18 specialty acts as 19 Estoppel in pais 167 Estoppel, surrender by ... 167 Estovers 182 Evidence, parol, admissible to charge a person not a party to a contract ... ... ... ... 115 Exchanges of land, what 37 Executed contract with corporation need not be under seal 40 Exemplary damages 298 Executors and administrators, rights of action by ... 10 Explosives Act, 1875 90 Factors Acts 54 sale of goods by factors under 54 False imprisonment 234 Father, religion of, child must be brought up in 291 right of dominion over children 288 Felony, tort amounting to a 51 Feoffment, what 37 Finder of chattel 216 Fire policy ^^^ Fire, negligent and accidental 211 2 A 346 GENERAL INDEX. PAGE Fixtures ^^'^ right of removal of 1°" Forcible entry ^"^ Forfeiture of conditional servitude 194 of lease 1"° waiver of 169 where relieved against 170 Forgery of negotiable instruments 153 Forms of action ^ when abolished 5 classification of 5 Fraud, bow it vitiates a contract 29 of agent, when principal is bound by it 116 Frauds, Statue of, contracts within 41 marriage not a part performance within 128 Fraudulent sale of goods 62 representation as to marriage 127 by agent 267 in prospectus 269 sale of goods on a... ... ... 71 to the public 268 what is a ... ... ... ... 70 Furnished house, lessor's implied warranty as to ... 164 Gamedealer must be licensed 31 Games, unlawful, what are .34 Gaming, contracts by way of, void 32 debt, securities given for ... ... ... ... 33 General damages 294 Grace, days of 149 drant of servitudes, express 183 implied 184 lost 187 essentials of 187 Guaranties 95 essentials of 95 must be in writing 41,95 Guardian, testamentary 290 ■GENERAL INDEX. 347 PAGE Hiring, contract of Y2 anmial 72 how terminable 73 Holder of negotiable instrument for value 146 Holding over, when lessee is liable for double rent ... 171 Husband and wife 129 Husband, credit of, when wife has authority to pledge ... 131 remedy of, when his cruelty has driven his wife away from him ... ... ... ... 137 rights as to wife's property , 129' Illegal consideration 31 Immoral consideration 30 Impounding of goods distrained 172 Imprisonment, false 234 when justifiable 234 Indemnity, contracts of ... 95 Infants 8 cannot ratify conduct on coming of age ... 8 Inherent vice in thing bailed 86 Injunction 36 Injuria sine damno 3 Injuries resulting from exercise of statutory powers ... 272 resulting in death ... 227 to servant of tender years 287 Inquisition in lunacy 239 Innkeepers' Act • 86 duties and liabiUties of 87 lien of for charges 87 Insurance, contracts of 100 fire 104 life 105 marine ... 101 Interest, when recoverable 305 Interruption of enjoyment of servitude 195 I. 0. U., what 1*3 2 A 2 348 GENEEAL INDEX. PAGE Judgments -"^^ Justification ^^^ Land, recovery of 173 under County Courts Act, 1888 ...174 at petty sessionB... 175 sale of an interest in 41 trespass to 201 when excused 201 Landlord and Tenant 155 Lease, memorandum of agreement for a, what are material terms in 158 what 155 when must be by deed 37 Lessee, covenants by ••• 162 implied obligations of 164 liabilities of, pn covenants in lease 161 Lessor, implied obligations of ... ... ... ... 164 may sue lessee's assignee on covenants ... ... 10 Lex mercatoria 2 Lex non scripta 1 Lex scripta l Libel ... 251 criminal proceedings for ... ... ... ... 262 defences to action for 252 Libel, Law of. Amendment Act, 1888 256 Idcense does not amount to a covenant ... ... ... 184 Lien, carrier's, for freight 89 innkeeper's right of, for charges ... ... ... 87 vendor's right of ... ... ... ... ... 59 when revived ... ... ... 60 waived ... ■ ... ... 60 Light, claim of right to enjoy 180 Life policy 105 Limitations, Statutes of 12 their operation, how interrupted 14 GENERAL INDEX. 349 PAGE Liquidated damages 306 Locatio operis faciendi, what 85 Locatio rei, what 84 Lord Campbell's Act 228 Lord's Day Act 32 Loss of profits, when can be recovered 296 Loss, constructive total 103 partial 108 total 103 Lost grant 187 presumption of may be rebutted 190 Lotteries, illegal 33 Luggage, passengers 90 Lunacy Act, proceedings under 239 Maintenance, what 30 Malice in fact, what 253 in law, what 253 Malicious conspiracy 249 Malicious prosecution 247 Mandamus 35 Mandatum, what 81 Market overt, what 63 sale of goods in 53 not in 54 Marriage, breach of promise of 128 brokerage, contracts of ... ... ... ... 127 contracts in consideration of 41, 128 , restraint of 127 Married women ••• 8 when they can become bankrupt 8 sue 8 Married Women's Property Act, 1882 ... 8, 129 Marine Insurance 101 Master and servant, contract between 72 Master, liability of torts committed by servant in course of his employment 276 350 GENERAL INDEX. Mastbk — continued. ' paqb , liability of, to servant for. negligence 281 . . right. of in respect of torts committed against his servant 285 when he may dismiss his servant without notice 73 Material terms of agreement for a lease 168 of memorandum in writing ... ... ... 46 Memorandum in writing, its essentials 46 several documents may be read together in order to constitute 48 signature to . . . ... ... ... ... ... 48 of agreement for a lease, its material terms ... 158 Merchant Shipping Act, 1854 92 Merchant Shipping Amendment Act, 1862 92 Merger of contracts 18 of lease 169 of right to a servitude ... ... ... ... 194 Mesne profits, what 175 Misdemeanor, tort amounting to 51 Mistake, contracts made under a . . . ... ... ... 29 Mutuality, what 20 Mutuum, what 81 Necessaries, wife's authority to pledge husband's credit for 131 Necessity, way of 185 Negligence, as to evidence of 229 contributory, what 226 when no answer to action for negligence ... 225 contributory of bailor 86 what 224 Negligent conduct of the bailees of chattels 231 personal conduct 264 use of chattels ...■ 224 real property 211 Negotiable instruments 139 Newspapers, when privileged 256 Nominal damages 294 'GENERAL INDEX. 351 PAGE Notice of abandonment 103 of action when necessary 245 in cases of injuries resulting from the exercise of statutory powers 275 of dishonour 151 of distress 172 of infirmity in title to negotiable instrument ... 147 of termination of service ... ... ... ... 72 to quit 157 under the Agricultural Holdings Act ... 166 Noting of bills of exchange 150 Nuisance, committed in excess of statutory powers ... 273 remedies for 208 what 204 when may be abated ... ... ... ... 208 Officers of Justice, when justified in arresting without a, warrant 241 Original doer of wrongful act liable 304 Parol agreement for a lease, when specific performance of granted ... ... ... ... ... 159 Parol evidence admissible to charge a person not a party to a written contract ... ... " ... 115 Parents' dominion over children 288 Parties ^ Partitions of land, what 37 Partnership 1^4 . Amendment Act 125 how dissolved 125 Passengers' .luggage,... 91 Patent rights— transfer of, must be by deed 38 Pawnbrokers' Act, 1872, special contracts under ... 49 Penalties — • ^^^ relief against, in equity 307 at common law ... .•■ ••• 307 Pledge, contracts of ^^ 352 GENEEAL INDEX. Policies of insurance— fire ... life marine essentials of Presentment of bill, for acceptance for payment Prescription Act Price of goods where there is a written the contract ... Principal and agent rights and liabilities of when bound by the signature of and .surety, see " Guaeantie." Privileged communications... occasions when no answer to defamation ... Privity Profits a prendre ■•■ incidents to ... lie only in grant Promise, the, in contracts to marry Promissory note, what • as a continuing security Prospective damages Protest of foreign bills Public policy, contracts opposed to Publican cannot sell beer on credit Quantum meruit PAGE ... 104 ... 105 ... 101 ... 101 ... 147 ... 149 ... 191 memorandum of ... 46 ... 107 ... 107 fraudulent agent 267 an action for 253 254 253 20 181 181 193 23 128 142 150 299 150 30 32 77 Railway and Canal Traffic Act, 1854 . RaUway company, forwarding goods by another line ... 98 liability of, as carriers 90,91 when, becomes bailee for hire 93 GENERAL INDEX. 353 PAGE Reasonable cause, a question of law 248 what 248 Receipt of goods, what 44 Recognisances 18 Record, contract of •. 17,18 attributes of 19 Recovery of land 173 under County Court Act, 1888 174 at petty sessions 175 Registration of partnership under Companies Act, 1862 124 Religion of child, ante-nuptial agreement as to, by father, void 291 Religious belief of father to be that of child 291 Remedies for breach of contiract 35 Remoteness of damage 300 Renewal of bill of exchange 150 Rent, different kinds of 13 remedies for non-payment of 171 six years' arrears may be distrained for 172 Repair, covenants to... k 163 Replevin, proceedings in 221 what 221 Replevying of distrained goods 172 Representation, false 72 fraudulent 70,265 Request, the, in a contract 24 Reversion, what 155 Right of action, what 3 Right of possession of goods, vendee's 59 when defeasible, and how 59 Rioters, damage done by 202 Running with the land, covenants 160 Sale, bill of 62 of goads, agxeement for 57 354 GENEBAL INDEX. Sale— continued. page conditional ... ... ••. ... 56 contracts relating to ... ... ... 53 fraudulent 70 of- value of £10, contract for 42 unconditional ... ... ... ... 55 with all faults 71 Sample, sale by, implied warranty on 67 Seal, contracts which must be under 37 ■ under, made by agents ... ... 107,111 Seduction 287 Separate property of wife, agreements as to 49 Servants, contracts between masters and 72 domestic 72 enticing away of 286 liability of master for. torts committed by ... 276 to, for negligence ... ... 281 master's right of action for torts committed against ... ... ... ... ... ... 285 of carrier, felony by ... ... ... ... 92 of tender years, injury to 287 powers of, Courts of Summary Jurisdiction in relation to 75 seduction of female... ... ... ... ... 286 Servitudes 177 conventional 180 how claimable 183 extinguished 194 natural , 178 Ship must be transferred by deed 38 Shipowner, liability of, as carrier 92 for personal injuries 228 Signature to memorandum in writing 48 Slander, defence to- action for 252 • ■- when. actionable ■ 250 GENERAL INDEX, 355 Special contract uncompleted divisible and apportionable absolutely determined incapable of completion Special damage in an action for slander Specialty, contract of attributes of Specific performance of contract . . . of parol agreement for a lease Stakeholder, liabilities of Stannary rights in Cornwall Statutes, merchant staple Statutory powers, injuries resulting from the exercise Stoppage in transitu • ••• Sub-contractor, liability of for negligence Sufferance, tenancy on Sunday trading illegal Support, rights of Supra protest, acceptance of bills of exchange Surety, see " Guaeantie." rights and liabilities of Surrender of land, what of lease by operation of law effect of, on under lessee Suspension of bill of exchange Taskwork, contract of, what Tenancy at will how terminable for less than a year for years from year to year . . . how terminable on sufferance PAGE . 77 . 77 . 79 . 80 . 296 . 250 . 17 . 19 . 35 . 159 . 33 . 194 . 17 . 17 of 272 61 279 158 32 179, 187 .. 151 .. 96 .. 38 .. 166 .. 166 .. 168 .. 150 .. 75 .. 158 .. 158 .. 157 .. 155 .. 156 .. 156 .. 158 356 GENEEAL INDEX. PAGE Tenant, landlord and 155 Third party intervening and causing damage does not absolve original doer of wrongful act ... 304 money paid to agent for 123 Time immemorial 190 Title to goods 53 warranty of ... ... ... ... ... 67 exceptions 68 Torts amounting to a felony 51 founded on contract 51 generally 60 who may sue and are liable for ... ... ... 10 Total loss, actual 103 constructive. 103 Trade, contracts in restraint of 31 Trademarks ••• 270 counterfeiting 269 Transferee of bill of lading may sue thereon 10 of promissory note may sue thereon 10 Trespass, «& »»i*i«o 201 action of, what ... ... ... ... ... 7 to goods 213 to land 201 when justifiable 201 Trover, action of, what 6 Truck Acts, agreements under 49 Unconditional sale 55 Underlease, effect on, of surrender of lease 168 Under lessee, liabilities of I61 Underwriter, liabilities of , 103 may re-insure 102 what. • 101 Undisclosed' principal, rights and liabilities of ... Ill, 114 Unnamed principal, rights and liabilities of ... Ill, 114 GENERAL INDEX. 357 PAGE Unfurnished house, lessor does not warrant 165 Unsound mind, persons of, cannot sue 8 Usage, what 1 Use and occupation 158 Usual covenants, what 159 Vadium 83 Vituperation, niere, not actionable 250 Void lease, tenant's liability under ' ...155 Wagers 32 Waiver of acceptance of a bill of exchange 149 of notice to quit 166 Warranty of quality of goods 67 of title to goods 65 sale of goods with a, express 64 implied 64 when not implied 68 Waste 196 equitable 197 persons liable for 196 Way of necessity 185 private right of 180 public right of 180 Wife, authority of, to pledge husband's credit 131 cruelty to, by husband, justifying her leaving him 187 funeral expenses of, husband's liability for ... 138 property of, husband's rights as to 129 Will, tenancy at 158 Witness, privileged 259 Work and labour, contracts of 72 Writing, when authority to agent must be in 107 contracts which must be in 41 358 GENBEAL IKDEX. Written memorandum, essentials of ... signature to Wrongful distress remedies for. . . Year, contracts not to be completed within Yearly hiring, termination of contract for tenancy ... ■ ... notice to quit under tenant, liability of under a void lease PAGE . 46 48 218 221 42 72 156 157 155 LONDON : SHAW AND SONS, FETTEK LANE AND CHANE COTJBT, E.C.