Cornell University Law Library The Moak Collection PURCHASED FOR The School of Law of Cornell University And Presented February 14, 1893 IN HEnORY OP JUDGE DOUGLASS BOARDMAN ^ FIRST DEAN OF THE SCHOOL By his Wife and Daughter A. M. BOARDMAN and ELLEN D. WILLIAMS Cornell University Library KD 1949.H35 A treatise on torts :and the legal remed 3 1924 022 357 630 . "% Cornell University W Library The original of tiiis book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924022357630 TREATISE ON TORTS: AND THK 2.^gal lm^bi^» Ux tjjnt ^t^xt%%. BY SYDNEY HASTINGS, B.A. Oxon., AND OF THE INNER TEMPLE, BAEEISTEK-AI-LAW. JOINT BDIIOR OF JIAOQUEBS OH "THE LAW OP HUSBAHD AHD WIFE.' LONDON : H. SWEET AND SONS, 3, CHANCERY LANE, C. F. MAXWELL, MELBOURNE AND SYDNEY; CAESWELL AND CO., TORONTO. 1885. LOKDOS : BBADBURY, AONEW, & CO., PMNTEKS, WHITErBIAKS. PREFACE, The object of the Author in the following pages is to supply the Profession with a practical treatise on the Law of Torts, in a concise and convenient form. Since the last edition of Addison on Torts was published in 1879, several Acts of Parliament have been passed which have materially altered "the law as affecting Torts. One enactment, the Employers' Liability Act, 1880, is of such importance that it has been considered advisable to treat of it under a distinct heading ; others, such as the Married Women's Property Act, 1882, the Bills of Sale Act, 1882, the Bankruptcy Act, 1883, and the Patents, Designs and Trade Marks Act, 1883, will be found referred to as the subject under consideration demands. Under the Title of " Eailway Negligence," the Author has treated not only of the obligations of Eailway Companies to the public at large, but also of their duties and responsi- bilities as Carriers of passengers and goods. S. U. 2, Mitre Court Buildings, Temple, September, 1885, TABLE OF CONTENTS. — t — PAGE Index of Cases xxvi- Table of Statutes jij; CHAPTEE I. OF TORTS GENEEALLY 1_15 Definition of tort •••......... l Innocent act may become tortious 2 Injury to riglit, not based exclusively on right of property .... 2 Kemoteness of damage 2 Instances where no action will lie, though damage suffered .... 4 "Waiver of tort 4 Ashhy V. White, 5 A lawful act may become the foundation of a tort 5 Ms^'^Yca.'^ sicideretuo ut alicmmn nonlaedas" 7 Vis major, a defence to action for tort 7 The doctrine as to suspension of right of action in case of felony ... 8 Torts committed by British subjects abroad 9 Non-liability of ambassadors for torts 9 Liability of master for servant's act 9 Joint liability of partners for tort . . . . . . . . . lo Infant's liability for tort 10 Torts by a married woman ] Wife liable for her tort, to the extent of her separate property . . . 11 Liability of public officers for torts . . 12 Joint Liability of tort-feasors 12 Damages in action for tort . . 12 Statute of Limitations 13 Separate actions in respect of same wrongful act 15 CHAPTER 11. TORTS AFFECTING THE PERSON 16-40 Section I. — Assault 16-22 Definition of assault 16 battery 16 No assault where consent 17 Assault by servant 17 XXXll INDEX OF CASES. Kail 27 3S7 119 113 142 371 356 18 43 52 PAGE Collett V. Foster .... 24 — v.L.k N. W. Rail. Co. . 200 Collier v. Hiots .... 19 Collin V. Wriglit . . . .261 Collins V. Carnegie .... 45 — r. Evans . . . .253 — V. Martin . . . .135 — V. "Welcli . . . .383 CoUis V. Shedden . . . 171, 182 Colonial Life Ass. Co. v. Home & Colonial Ass. Co. Cohvill V. Eeeves Commissioners of Sewers v. Glasse Congreve v. Evetts Cook, Ej: parte Cook V. Allen . — V. Beal . — V. "Ward . — V. Wildes Coombs V. Bristol & Exeter Co.- . Coombs V. Noad Cooper V. Crabtree — i>. Lawson — V. Wandsworth Board — V, Whittingliam — -u. Wilomatt Coote V. Judd . Cope V. Barber Corbett v. Brown Corbet's Case . Corby !'. Hill . Cornell !'. Hay Cornfoot v. Fowke Comill 1). Hudson Cornish v. Stubbs Cornman v. Eastern Counties Co. . Corry v. G. W. Eail. Co. Costar V. Hetherington Cotesworth v. Spokes Cotterill v. Hobby . Cotton V. Wood Courtauld v. Leigh . Cousens v. Hall Coventry v. Gladstone Coward v. Baddeley Cowell V. Amman Colliery Co, Cowles V. Potts Cowling V. Higginson Cox V. Burbidge — r. Glue — V. G. W. Kail. Co. 213 123 224 55 81 298 126 292, 298 28 272 113 170, 172 281, 284 252, 257, 268 13 87 Eail, 207 191 21 154 85 167, 176 106 100 141 17 387 65 101 78, 179 66 164 PAGE Cox V, Land & Water Journal Co. . 289 — V. Lee ^ , 43 — V. Leech . 188 — V. Matthews 89 Coxe V. Balne , 356 Coxhead v. Bichards 53 Coxon I'. G. W. Eail. Co. 213 Crafter v. Met. Eail. Co. . 206 Cramer v. Mott 151 Craig V. Phillips , 281 Crandon v. Walden . 45 Crane v. London Dock Co. . 130 131 — V. Price. 321 Craufurd, Re . 29 Craven v. Smith 391 Cripps V. Judge 163 Croasdill r. Eatcliffo 243 Croft V. Stevens 54 Crofts V. Waterhouso 199 Croke v. Birt . . 346 349 Crosbie v. Murphy . 188 Crosby v. Wadsworth 67 Crosier v. Torakiuson 150 Cross V. Lewis 92,93 Crossfield v. Such . 146 Crossley v. Beverley 323 — V. Liglitowler 73 109 Grossman v. White . 146 Crouch V. L. & N". W. Eail. C 0. 212, 213 Crouther v. Eamsbottom . 82 Crowhurst u Amersham Burial Board 7, 181 Crump V. Lambert . 2, 224, 234 Cubitt V. Maxse 246 — V. Porter 65, 80 CuUen V. Morris 338 CuUen V. Thompson Trustees 266, 278 Cumberland v. Planche . 301 Cundy v. Lindsay . 130, 134 Curriers' Co. v. Corbett . 108 Curry v. Walter 56 Curtis V. Curtis 42 — V. Hubbard . '. 349 D. Daines v. Hartley . . 49 D'Almaine v. Boosey . 294 Dalton V. Angus 93, 97, 98 — V. S. E. Eail. Co. . 210 — V. Whittern . 148 Daniel i\ Anderson . . 109 INDEX OP CASES. xxxni Daniel v. Met. Rail. Co Daniels v. Fielding . Darby v. Harris — V. Ouseley . Dare v. Heathcote . Dargan v. Davies , Darley v. Tlie Queen Daunt V. Crocker . Davey v. Chamberlain — ». L. & S. W. Kail. Co Davies v. Mann — V. Snead — V. Solomon , — V. Williams . Davis V. Black — V. Burrell — V. Capper — V. Danks — V. Gardiner . — r. L. & Blackwall Eail. — V. Morgan — r. Noake — ti. Russell Davison v, Duncan . — V. GiU — V. Wilson . Dawes v. Hawkins . Dawkins v. Lord Paulet — V. Lord Rokeby Dawson v. Cropp . — V. Fox — I'. Midland Kail Co. Day V. Bather — V. Brownrigg . Deane v. Clayton . De Boufigny v. Peale De Crespigny v. Wellesley De la Warr (Earl) v. Miles Delegal v. Highley . Delf u Delamotte . De Medina v. Grove Dencourt v. Corbishley Dennett v. Grover . Dennis v. Whetham Denny v. Thwaites . Dent V. Auction Mart Co Denton v. G. N. Rail. Co — V. Macneil . Devaux v. Steinkeller Devereux v. Barclay — v. John . De Vitre v. Betts . Devonshire (Duke) v. Elgin Co. PAGE 199, 206 . 32 . 148 . 49 . 101 . 156 . 369 . 76 . 177 196, 208 . 168 53, 54 . 46 81, 160 5 . 69 . 30 . 120 . 46 175 . 89 . 35 . 23 . 56 71, 72 68, 69, 81 249 51 4, 51 152 358 191 185 333 239 188 41 115 34 299 33 25 83 344, 353 27 107 223 273 271 128 356 325 88 PAOB Dews V. Riley . 30 Dibdin v. Scott 57 Dicas V. Lord Brougham . . 20 Dickinson v. Grand Junct. Can. Co. 103 — V. L. & N. W. Kail. Co. . 193 — V. N. E. Eail. Co. 210 Dicks V. Yates 289, 291, 296, 337 384 Dickson v. Earl of Wilton , 52 Digby V. Thompson 43 Dimes v. Petley. 226 249 Dimmock v. Bowley 33 Ditcham v. Bond , 82 Dixon V. Bell . 183 — V. Birch 185 — V. Met. Bd. of Works 8 180 — V. Smith 47 — V. Stansfeld . 124 — V. White 70 Dobree v. Napier 9 Dobsou V. Fussy 19 Dodd V. Norris 161 — V. Robinson . , 45 Dodgson's case 276 Doe V. Davidson 97 — V. Kemp . 72 — V. Reed . 92 Donaldson v. Beckett 287 Doolan v. Midland Kail. Co. 219 220 Dorchester (Mayor of) v. Ensor 111, 246, 249 Dorman, Ux parte . . 139 Doughty V. Firbank 163 Dovastoir V. Payne . . i )7, 246 249 Dover v. Child 146 Downing v. Capel . . 27 Downton (Overseers) AV parti- 366 Dracachi v. Anglo Eg. Nav. Ci 141 Drury v. Molins 85 Dublin & Wexford Rail. Co. , Slat- tei-y .... 195 196 Du Boulay v. Du Boulay. 333 Duck V. Bates 304 305 Duddin v. Long 357 Dudgeon v. Thompson . 324 Dufaur v. Sigel 384 Dugdale v. Robinson 70 Duke, Ex parte 12 Duncan v. Louch . 109 — V. Thwaites 56 Dunk V. Hunter 146 Dunman v. Bigg 55 Dunn V. Birmingham Canal Cc . 7 Dupuy V. Dilke SIO XXXIV INDEX OF CASES. Dyce V. Hall . Dyson v. CoUick FASE 90 65 E. Eadon v. Jeffcock . . . .70 Eager v. Grim wood . . . .161 Eaglesfield v. Londonderry (Marquis of) 261 Eagleton v. Gutteridge . . 147, 348 Eai-dley v. Earl Granville Eastern Counties Rail. Co. v. Brown — — V. Dorling Easton v. Richmond Highway Bd. Eastwood V. Bain . Eaton V. Johns Ecclesiastical Comms. v. N. E. Rail Co. ■ — — V. Kino Edgell V. Francis Edsall V. Russell Edwards v. Bridges . — V. Halinder — i>. L. & N. W. Rail. Co. — V. Midland Rail. Co. — ■». Scott Edwick V. Hawkes . Egginton, Ex parte . Ekins V. Fresham . Ellershaw, Ex parte Eliot V. AUen . Elliott, Ex parte — 0. Kemp — D. Majendie EUiotsoa V. Feetham Ellis V. Bridgnorth (Mayor — V. G. W. Rail. Co. . — V. Loftus Iron Co. . — a>. L. & S. W. Rail. Co. — V. Manchester Carnage Co. — V. Sheffield Gas Co. Elmslie v. Boursier Elwes V. Mawe — V. Payne Elwell V. Crowther Elwood V. Bullock Elworthy v. Sandford Ely (Dean) v. Warren Embleu v. Myers Embrey v. Owen England v. Cowley Ennor v. Bai'well , 71 17 73, 100 244 276 43 15 107 33 45 352 99 208 39 138 68, 69 343 267 376 31 120 238 232 87,92 195, 196 . 78 . 197 . 105 . 183 321, 325 . 148 . 110 . 70 . 91 . 137 . 114 13, 83 12, 102 121, 151 . 105 PAOE Erskine v. Adeane .... 79 Eslick, Ex parte .... 142 European Mail Co. v. Royal Mail Co 126 Evans v. Edmonds .... 250 — u. Roberts .... 67 — V. Walton .... 159 — V. Wright .... 125 Eveleigh v. Salisbury 358 Every v. Smith . . .66, 71 ,120 Ewart V. Graham ... 97, 117 F. Faikman v. Ives . Fairlie v. Boosey Falvey v. Stanvford . Farina ■«. Silverlock . Farley v. Danks Farnworth v. Packwood Farrant v. Barnes . Faucett v. York & N. Midland Rail, Co Fearnley v. Ormsby Fearon v. Mitchell . Fell V. Knight Ferguson v. Carrington . — V. Earl of KinnouU Fernandez, Ex parte Fetter v. Bealo Field V. Adams Fielding u Hawley . Filliter v. Phippard . Finden v. Westlake Finlinson v. Porter . Firth V. Bowling Iron Co. Fisher v. Bristow . — V. Clement . — 1). Prowse Fitch V. Eawling . Fitzgerald v. Midland Rail. Co, — ti. Northcote Fitzjohn v. Mackinder Fitzwalter's (Lord) Case Fleming v. Maneh. & Sheff. Rail. Co, — 1). Orr Fletcher v. Bowsher — V. Fletcher — V. Marillier — V. Rylands Flight V. Thomas . Flitters v. AUfrey . . 53 292, 314 59 334 40 185 182, 214, 269 193 243 110 184 129 12 29 13 20, 155 329 239 55 89 7, 181 37 49 245 90 223 20 37 116 390 179 268 31 154 5, 6, 226 94, 232 INDEX OF CASES. XXXV Floyd V. Barker Folsom V. Marsh Forbes v. King Force v. Warreu Ford V. Foster . — V. Lecke . — v. L. & S. "W. Rail Co, — V. Skinner Fordham v. L. B. & S. C. Rail. Co, Forshavv v. de Wette Forster v. Lawson . Foster v. Bates — V. G. W. Rail. Co — V. "Wright Fotherhy v. Met. RaiL Co. Foiildes V. Willoughby Foulger v. Newoomb — V. Steadman Foulkes V. Met. Dist. Rai! Fountain v. Boodle . Fowler v. Lock — 11. Walker . Foxall V. Barnett Fox V. Gaunt . Foy V. Brighton Rail. C'o France v. Gaudet Francis v. Cockrell . — V. Wyatt Franklin v. S. E. Rail. Co. Fraser v. Swansea Nav. Co, Fray v. Blackburn — V. Fray . — V. Vowles Frearson v. Loe Freeman v. Rosher Fremantle v. L. & N. W. Rail. Fritz V. Hobson Fryer v. Kynnersley Fuller V. Wilson PiGE i, 50 295 44 55 334 345 200 16 204, 208 . 387 . 43 . 137 . 384 . 116 359, 363, 367 . 119, 122 46 . 78 . 200 . 53 174, 178 . 108 33, 39 . 25 202, 203 143, 144 . 184 . 150 . 210 . 138 . 50 43 . 188 . 325 . 122 Co. . 198 226, 242 . 53 252, 258, 261 Co. G. Galatti v. Wakefield Galliard v. Laxton . Galloway v. Bird . Gallwey v. Marshall Gambart v. Ball — V. Sumner. Gann v. Free Fishers of Whitstable Gandy v. Ledbridge 387 24 157 45 310 311 74 130 — V. Jubber 175, 225, 227 Gardiner v. Grey — V. Williams Gardner v. Slade Garnett v. Bradley . Garton v. Bristol & Co Gathercole v. Miall . Gaunt V. Finney Gaiitret v. Egerton . Gaved v. Martyn Gawler v. Chaplin . Gayford v. Moffatt . — V. Nicholls . Gearns v. Baker Geddis v. Bann Reservoir Co Gee V. Met. Rail. Co. Genner v. Sparkes . Geoghegan v. Fegan George v. Chambers — V. Skivington — and Richard, the . Gerhard v. Bates Gibbins v. Phillips . Gibbons v. Alison . — V. Pepper . Gibbs V. Cniickshank — V. G. W. Rail. Co. . Gibbs' Case Gibson v. Bray — V. E. India Co. — V. Wells Gilding v. Eyre Gill V. Cubitt . — V. Dickinson Gilpin V. Fowler Girlington v. Pitfield Gladinan v. Johnson Gladstone v. Padwick Gladwell v. Steggall Glasspoole v. Young Glave V. Harding . Glossop V. Heston Local Board Glover v. Coleman . — V. L. & S. W. Rail. Co, Glynn v. Thomas . Godfrey v. Dalton . — V. Jay. Godts V. Rose . Gofif V. G. N. Rail. Co. . Goffin V. Donelly . Gold V. Strode Golding V. Stocking Goldsmid v. G. E. Rail. Co. PAOE . 266 . 42 . 53 380, 386, 391, 392 Exeter Rail. . 212 . 55 224, 230, 232 . 172, 252 88, 104 250. 352 100 98 118 104 204 16 87 157 181 210 273 345 32 17 164 132 138 361 85 32 135 70 55 38 180 350 189 352 108 363 106 33, 215 152, 155 187 . 188 . 130 . 9, 28 . 4, 51 . 342 . 244 . 110 c 2 XXXVl IKDBX OP CASES. PAGE Goodman v. Harvey . . . 135 ~ V. Saltash (Mayor) . . 116 Goodson V. Richardson ... 84 Goodwin v. Eobarts . . . 136 Goodwyn v. CheYeloy . . . 155 Gordon v. G. "W. Kail. Co. . . 220 — V. Laurie . . . .339 Gorgier v. Mieville .... 136 Gott V. Gandy 174 Gover's case . . . 281, .283, 284 Grace v. Newman .... 290 Graham v. Furber .... 138 Grainger v. Hill ... 22, 125 Grand Junction Canal Co. ii. Shugar 106 Grant v. Moser Grant v. Norway — i!. Vanghan . Graves v. Ashford . — V. Mercer Graves, In re . Gray v. Bond . — V. PuUen — V. Stait . G. W. Bail. Co. u Blake — V. Blower G. N. Eail. Co. v. Behrens — V. Hawcroft — V. Kimell — V. Tahourdin Great Ship Co., In re Greatrex v. Hayward Gregory v. Duke of Brunswick — V. Piper Green v. Bartram . — V. Brown — I/. Duckett . — V. Greenback — V. Lond. Gen. Omnibus Co. Greenslade v. Darby Grevillei). Chapman Griffin v. Coleman . — V. Dighton . Griffiths v. Earl Dudley — V. Lewis — V. Teetgen . Groenvelt v. Burwell Grose v. "West . Groteu. Chester & Holyhead Rail. Co, Grove v. Nevil Guardian Fire & Life Association Guardian & Genl. Ass. Co, Guest V. Poole & Bournemouth Rail Co, . , . . .263 25 259 135 310, 311 311 308 92 183 154 206 213, 214 218 223 219 351 351 103 57 66 25 356 156 262 39 77 43 23, 25 75 162 44 160 29 72 190 262 337 Guille V, Swan Gulliver v. Cosena Gutsole V. Mathers GwinneU v. Earner H. Haokett v. Baiss . Hackle v. Money Haddan v. Lott Haddrick v. Heslop . Haigh V. Royal Mail. S. S. Co, Hailes v. Marks Haise v. Wilson Hales V. L. & N. W. Rail. Co. HaU V. Barrows — V. Booth . — V. Byron . — V. Fearnley — V. Hollander . — V. Johnson — V, Lund . — V. Nottingham Halley, The . Halliday «. Holgate Hamer v. Knowles . Hammer v. Chance . Hamilton v. Bell — (Duke) V. Graham Hamlin v. G. W. Rail. Co. Hammack «. White . . 167, Hancock v. Austin . • — V. Baker . — V. Soames . Hardcastle i'. S. York. Eail. Co, Hardy v. Eyle Hardman v. Booth . Hargreaves v. Diddams Harker v. Birkbeck . Harland v. Newcastle (Mayor) Harnett v, Maitland — V. Vise Harper v. Godsell . — V. Lufkin Harris v. Dignum . — II. Drewe — V. G. W. Rail. Co — V. Mobbs — i/. Petherick — V. Ryding . — V. Thompson Harrison v, Blackburn FAQB 234 155 60 174 138, . 107 . 33 47, 58 34, 37 209 34 49 213 333 24 112, 115 17 159 162 89 , 90 9 128 71 94 140 89 212 168, 179 146, 147 82 21 175 15 133 117 71 387 84, 85 381 126 159 24 76 220, 223 179, 241 . 381 70, 99 52, 55 63, 64 INDEX OF CASES. XXXVll PAGH Han-ison v. Brighton Rail. Co. . 213 — V. Bush . , . 5i_53 — V. Good . . . 224 — V. Round .... 76 — V. Tayloi- .... 328 Hanold v. G. W. Rail. Co. . . 191 Hart V. Baxendale . . . .218 — V. Trance .... 187 — V. Gumpach . . .50, 52, 54 — V. "Wall 60 Hartley v. Cook . . . .19 — V. Cummings . . . 159 — v. Hiudmarsh . . .21 — V. Moxham . . . .121 — /» re . . . . 374 Harvey v. Bi-ydges . . 19, 68, 69, 81 — V. Pocook .... 149 — V. Walters . . . .87 Harwood v. G. N. Rail. Co. . .321 Haseler T). Lemoyne . . . .153 Haslop V, Fergusson . . . 270 Hassall V. Wright . . . .323 Hastings (Corporation of) v. Ivale . 74 Hatch v. Lewis .... 391 Hattersleyj). -Er^rte . . .139 Hatton V. Keane .... 300 Hawkes v. Dunn .... 126 Hawkesley v. Bradshaw ... 58 Hawkins v. Carbines . . .100 — V. Compiegne ... 76 — V. Harwood . . . 188 Hawthorn v. Hammond . . . 184 Hawtry v. Butlin .... 142 Haycroft v. Creasy . . . 250, 252 Hayn v. CuUiford . . . .167 Hayward v. Seaward ■ . . 123 Head v. Briscoe . . . .10 Heald v. Carey . . . .122 Heam v. L. & S. W. Rail. Go. . 218 Heath V. Buoknall . . . .107 Heaton's Trademark, In re . . 333 Heaven v. Pender 167, 170, 171, 176, 182, 253, 266 Hedges v. Tagg . . . .160 Hellawell v. Eastwood . . . 148 Helsham v. Blackwood ... 57 Heming v. Power .... 45 Hemmings v. Garson . 44, 49 Henderson r. Bromhead ... 51 — V. Lacou . . . 275 — V. Maxwell . . .291 — V. Stevenson . ■ . 220 Henning v, Burnett , . . 101 Henwood r. Harrison Hepburn v. Lordau . Herbert v. Markwell Heseltine v. Siggers Heske v. Samuelson Heslop V. Chapman Hetherington v. N. E. Rail. C Hewitt r. Kaye Hewlins v. Shippara Hext V. Gill . Heyman v. Fletcher Hicks V. Faulkner . — V. Newport Rail Higgins V. Butcher Hilberry v. Hatton . Hill V. Balls . — V. Hart-Davis . — v. Lane . — V. Smith . — V. Thompson . — u. Thornborougli — ■ V. Wilson Hills V. Renny Hilton V. Ankesson — V. Earl Granville Hinde v. Charlton . — V. Sheppard . Hiort V. Bott . — -i). L. & N. W. Rail Hiscox V. Greenwood Hoare v. Met. Bd. of Works — ■ c. Silverlocke Hobbs V. L. & S. W. Rail Hoby V. Built . Hodgkinson v. Ennor Hodgman v. W. Midland Hodgson V. Scarlett HodsoU V. Taylor . Hodson V. Walker . Hoey V. Felton Hogg V. Scott — V. Ware Holdsworth v. Macrea Hole V. Barlow — V. Bradbury . — V. Digby — • V. Sittingbourne Rail Holford V. Bailey Holding V. Piggott . Holland v. Hodgson — V. Morley . HoUins V. Fowler , Co. Co. Rail. Co, PAOR 52, 55 238 186 136 163 34 210 137 86 70 123 34, 36 211 124, 321 126 266 54 278 130 320 97 136 357 79 91 76 391 125 144 . 136 . 87 43, 56 13, 212 . 188 6, 226 193 i, 50 161 82 13 298 25 328 229 293 78 183 115 119 138 108 119, 124, 133 Co. 175, xxxvm INDEX OF CASES. PAOE PA8S HoUoway v. Abell . . 159 Huntley v. Simson . . . .36 Holmes v. Bagge . 19 — V. Ward .... 49 — V. Bellingham 71 Hurdman v. N. E. EaU. Co. 7, 198, 226 — V. Goriug . . 109 Hurst V. G. W. Eail. Co. . . 223 — V. Mather . . 179 Hatchings and Bomer, ^iB^JOsrfc . 299 — V. IS. E. Eail. Co. 171, 190 Hutchinson v. Birch . . 348, 349 — -o. Seller . 89 — V. Copestake . . 106 — V. Wilson , 67, 83 — 1). Guion . .269 Holroyd v. Marshall . 142 Huzzy V. Field . . . .110 Holt V. Frost . . 356 Hyams v, Webster .... 184 Holyday v. Morgan . 267 Hyman v. Nye .... 181 Homer v. Taunton . 42, 44 Hone V. Hamilton , . 64 Hooper v. Lane . 349 I. — V.L.&. H. W. Eail. Co 200, 220, 222 Hopkins v. Crowe . . 23 I'anson v. Stuart .... 42 — V. G. N. Eail. Co. . 110 Ibbotson V. Peake . . 117 Hopkinson v. Burleigh (Lord) . 145 Ilott V. wakes . 239 Hopper V, Eeeve 16, 17 Imray v. Magnay . . 344 Hopwood V. Thorn . 44, 55 Inchbald v. Eobinson . 233 Horley v. Eogers . 27 Incledon v. Barry . . 36 Horn V. Swinford . 31 Indermaur v. Dames 170, 171 Hornby v. Cardwell . 385 Ingle V. Bell . . 25 Horsfall v. Thomas . 25 2, 263, 264 Ingram v. Lawson . . 46 Horwood V, Smith . . 132 Ireland v. Bushell . . 356 Hosking v. Wilson . . 84 Ireson v. Pearman . . 189 Hotten V. Arthur . . 296 Irons V. Smallpiece . . 136 Houlden v. Smith . 30, 50 Irwin V. Brandwood . 46 HounseU v. Smyth . 170 — V. Dearman . . 161 Housebill Coal Co. v. Neilson . 321 Irving V. Askew . 377 Howden v. Standish . 340 — V, Dearman . 159, 161 Howell V. Jackson . 19, 26 Isaacs V. Fidemann . . 299 — V. Young . 188 Isack V. Clarke . 121 Huber v, Steiner . 15 Iveson V. Moor . 240 Huckle V. Money . 33 Ivey V. Hedges . 171 Hudson V. Macrae . . 117 Ivimy V. Stocker . 88, 91, 98 — V. Eoberts . . 180 Hudston V. Midland Eail. Co. . 221 Hughes V. Maciie . . 169 J. — V. Eees . 353 Hull (Mayor) v. Homer . . 93 Hull & Selby Eail Co., In re . 74 Jaoksonv. Adams .... 76 Hume V, Druyff . 32 — V. Courtenay 19 Humphries v. Brogden . 70, 97, 99 — V. Cummins 124 — V. Cousins . 227 — V. Hopperton . 58 Humphreys v. Pratt . 354 — V. Met. Eail. Co. 195 Hunt V. Colson . 64 — V. Newcastle (Duke) 107 — V. Goodlake . 44, 49 Jacobs V. Humphry 352 — V. Hooper . 344 — V. Seward . 65 — V. Peake 70, 97 James v. Boston 53 — v. Ward . 119 — V. Brook 45 Hunter v. Caldwell . 188 — V. G, W. Rail. Co. 194 INDEX OP CASES. XXXIX James v. Hayward . . 101 K. — V. Phelps 34 Jarmain v. Hooper . . 121, 351 Kavanaoh v. Gudge . 82 Jarrold v. Hejavood . 294 Kay V. Marshall . 321 — V. Houlston . . 291 Kearney v. L. B. & S. C. Rail. C 0. 167, 190 Jefferys v. Boosey 286, 287, 2i )2, 293, 314 Keeble v. Hickeringill . . 117 Jeffries V. G. W. Rail. Co. . 120, 122 Keen v. Priest . . 149 Jeffryes v. Evans . 117 Kelk V. Pearson 107 Jenkins v. Phillips . . 43 Kelly V. Byles . 296 Jenner v. A'Beckett . 60 — V. Hatton . 297 Jennings v. Rimdall . 10, 262 — V. Partington . . 47 Jesser v. Gifford . 85 — V. Sherlock . . 58 Jewitt V. Eckhardt . . 328 — V. Tinling . 55 Johnson v. Barnes . 114 Kemp V. Burt . . 188 — V. Credit Lyonnais . 127 — V. Neville . 29 — V. Emerson 40, 49 KendaU v. L. & S. "W". Rail. Co . 213 — V. Lane. & York; Rail Co. . 144 Kennedy v. Hilliard . 51 — V. Leigh . . 349 Kent V. Mid. Rail. Co. . . 220 — V. Midland Rail. Co. . 212 — V. Millwall Dock Co. . 165 — V. Royal Mail Co. . 123 — V. Shuckard . 185 — V. Pye 10, 262 Kenyon v. Hart 66, 79, 117 — V. Stear . 128, 144 Kerr v. Shedden . 54 — V. Upham . . 147 Kesbey v. Denbey . . 348 Johnston v. Bloomfield . . 115 Kidgill V. Moor 85 — V. Orr Ewing . . 334 King V. Arkwright . . 322 Johnstone v, Sutton 33, 36, 37 — V. Lake . . 45 Joliffe V. Baker 250, 252 — V. Spun- . . 178 Jones V. Brown 119, 159 Kingsford v. Merry . 130 133 — 1). Bright . 266 Kino V. Rudkin . 107 — V. Ghappell . 85 Kirby r. Simpson . 30 — V. Cook . 238 Kirchner v. Venus . 124 — V. Dowle 146 Kirk V. Gregory 119, 121 — V. Festinipg Rail. Co. 7, 198 Knight V. Egerton . 152 — V. Gooday 83 — V. Gibbs 47, 55 — V. Heme 44 Knights V. Quarles . . 188 — -!). Hill . 84 Knowles v. Richardson . 4 — V. Jones 81 Kuhl V. Burrell . 108 — V. Mackie 59 Kynaston v. Mackinder . . 383 — V. Oshorn 185 — V. Owen 180 — V Powell 229 L. — V. Robins . 88, 11 1,11 3, 155 — V. Taylor 78 Lacy v. Rhys . . 301 — V. Wood. 346 Ladd V. Thomas . 147 Jordan v. Moore 321 Lade v. Shepherd . 66, 71 Jordin v. Crump 239 Ladyman v. Grave . 92, 106 Joule V. Jackson 150 Lafone v. Smith . 68 Joyce, Mm parte 371 Laird v. Briggs . 96 Judge V. Cox . . . . 180 Lake v. King . . 53 Judson V. Etheridge 124 Lamb v. Attenborough . . 128 Jupp V. Cooper 353 — V. Burnett . . 20 Justice V. Gosling . 27 — V. Walker . . 15 Jury V. Pigott , , . , 109 Lambert v. Bessey . 5 xl INDEX OF CASES. PAGE FAGB La Mert, Ex parte . . 371 Lewis V. Levy 50, 56 Lamphier v. Phipos . . 189 — V. L. C. & D. Ry. Co. . 203, 204 Lancaster Canal Co. v. Paniaby . 172 — r. Price .... . 93 Lane v. Applegate . . 57 — V. Ponsford . . 64 ■ — V. Dixon . . 66 Leyman v. Lattimer . 42 Langley v. Hammond . 109 Leyland v. Stewart . . 293 Langley, In re . 352 Lickbarrow v. Mason . 141 Langridge v. Levy . . 3, 250, 253, 266 Liggins V. Inge . 109 Lascelles v. Onslow (Earl) . .115 Lightfoot V. Keane . . 124 Latch V. Eumner Kail. Co. . . 200 Limpus V. L. G. 0. Co. . 9, 177 Latter v. White . 145 Lincoln College Case, The . 323 Laugher v. Pointer . . 178 Lister v. Perryman . . 25, S3, 34, 35 Laughton v. Sodor & Man (Bishop) ,'52, 54 Livesay v. Hood . 138 Lawless v. A. E. Cotton Co. . . 53 Livett V. Wilson 92, 93 Lawrence v. G. N. Kail. Do. . . 198 Liverpool Adelphi Loan Association — ' V. Jenkins . 79, 181 V. Fairhurst. . . . 11, 261 — V. King . . 244 Liverpool Cattle Market Co. r. Hoc - V. Obee . . 66 son . 232 Lawson v. Bank of London . . 334 Lloyd's Trade Mark, In re . 331 — V. "Weston . . 135 Load V. Green .... . 138 Lax V. Darlington (Mayor) . .175 Lock V. Ashton 39 Layton v. Hussey . . 156 Loeschman v. Machin . 126 Lazarus V. Andrade. . 142 Longmore v. G. W. Rail. Co. . 207 — V. Charles . . 328 London (Corporation) v. Riggs 101 Lear v. Caldecott . . 152 London Cotton Co. , In re, 351 Leask v. Scott . . 141 London & Blackwall Rail. Co., In re 368 Leather Cloth Co. v. American Leather L. & N. W. Rail. Co. -o. Lnnc. & Yorl Cloth Co. . . 333 Rail. Co. . . . . 84, 88 Le Blanche v. L. & N. W ^ Hail. Co. 223 Lonsdale (Earl) v. Rigg . . 66, 117 Le Contour, v. L. & S. "W. Rail. Co. 217, 221 Lord V. Price .... 128 Lechmere Charlton's Casf 5 . . 29 Loring v. Warbnrton 147 Leddell v. McDougal . 272 Lonsley v. Hayward 76 Lee V. Bayes or Robinson 9, 131, 133 Lovegrove v. White . 188 — -0. Baynes . . 125, 126 Lovell V. Howell . 172 — V. Cooke . . 152 — V. L. C. & D. Rail. Co. . 222 — V. Gansel . . 349 Lovering, In re , 139 — V. Haley . . 334 Lowe V, Govett 74 — V. Jones . . 252 Lows V. Telford 68 — o. Kiley . . 78 Lucan (Earl) v. Smith . 55 — V. Simpson . 301 Lucas V. Cooke 309 ■ — : V. Smith . . 147 — V. Mason 17, 26 Lees V. Patterson . . 32 — u Tarleton ... 15 2, 153 Legge V. Tucker . 389 Lvunby v. Allday . 44, 49 Leggott V. G. N. Kail. Cc . 209 Lumley v. Gys 3, 158 Lemaitre v. Davis . . 93 Lunt V. L. & N. W. Kail. Co. . 195 Le May v. Welch . . 328 Lutterell v. Reynell 9 Lethbridge v. Phillips . 125 Luttrell's Case 115 Leuckhart v. Cooper . 124 Lyde v. Barnard 271 Levee t). Davidson . . 292 Lygo V. Newbold . 169 Levy V. Edwards . 25 Lynch v. Knight . .44, 46, 47, 48 — V. Hale . . 363 — V. Nurdin . 169 — V. Kutley . 300 Lyne, Hx parte 31 Leward v. Baseley . . 20 Lyon V. Knowles ... 304 INDEX OF CASES. xli Lyons «. Depass — V. Elliot PAGE 131 150 M. McCarthy v. Young . . .182 McClaughlin v. Prior . . .178 Macclesfield (Mayor) v. Chapman . 110 — — r. Pedley . 110 MoCrea v. Holdswortli . . .328 McDermott v. Beaumont ... 29 Mace V. Philcox . . . .75 McGiSin v. Palmer's Ship Bldg. Co. 163 McGregor v. Gregory ... 43 — V. Thwaites ... 50 Machu V. L. & S. W. Rail. Co. . 219 Mack V. Petter . . . .296 Mackay v. Commercial Bank of N. Brunswick 257 McKenzie v. McLeod . . . 239 MacMahon v. Field . . 13, 212 McManus v. Lane. & York. Bail. Co. 214 McPhersou v. Daniels ... 48 Macqueen v. G. "\V. Rail. Co. . . 219 Maorow v. G. W. Rail. Co. . 220, 221 McSwiney v. Haynes . . .101 Maddison v. Alderson . . . 256 Magdaleua Steam Wav. Ci. c. jl.irtin 9 Magrath v. Finn ... .54 Mainwaring r. Giles . . 76 Malachy v. Soper .... 60 Malcolmson v. O'Dea . . 115, 116 Manby v. Witt .... 55 Manders r. "Williams . . . 352 Manchester & Sheff. Rail. Co. v. Ful- larton 197 Manchester & Sheff. Rail. Co. v. Wallis . . 155, 191, 192, 193 Mangan v. Atherton . . .169 Manley v. Field . . . .160 Mann -v. Barrett .... 159 Manning v. E. Counties Rail. Co. 19, 78 Manton v. Moore .... 140 Man veil u. Thomson . . .160 Manzoni t!. Douglas . 167, 168, 178 Maple f. Junior Army& Navy Stores 291 Marfell v. S. Wales Rail. Co. 190, 194 267 131 8 Co. 383 320 Margetson v. Wright Market Overt, The Case of Markham v. Cobb . Marsden v. Lane. & York. Rail. — V. Saville St. Foundry PAGE Marsh r. Conquest . . .301, 304 — V. Loader .... 24 Marshall v. Lane. & York. Rail. Co. 221 — v. XJlleswater Nav. Co. 73, 115 — v. York & Newcastle Kail. Co. , 200 Martin v. Gilham . , , 85 — V. G. N. Rail. Co. 199 — V. Shoppee . 16 — V. Strong 54 Martindale v. Smith 129 Martyn v. Knowllys 65 Mason v. Brentini . 384 — V. Hill . 102 — V. Keeling . 79 — V. Newland . 166. — V. Paynter . 342 — V. Shrewsbuiy RaU. Co. 104 Masper v. Brown 22 Master v. Ferris 147 Mather v. Eraser 148 Mathieson v. Harrod 292 Matson v. Baird 193 Maund r. Monmouthshire Canal Co. 122 Maunder v. Venn . 159 May V. Burdett 8 179 — V. Harvey 126 Mayhew e. Maxwell 289, 290 Mears v. L. & S. W. Rail. Co. . 119 Medway Nav. Co. v. Romney (E u-1) 62, 97 102 Mellor V. Baddeley . 38 — V. Leather . 157 — V. Spateman 114 — V. Watkins . 87 Mellors v. Shaw 173 Mennie v. Blake 157 Mercers Company, Hx parte . 380 Merchants Banking Co. V. Merchants Joint Stock Bank , 336 Merryweather v. Nixan 393 Metcalfe v. L. B. & S. C Rail. Co. 213 219 Metropolitan Asylums Managers V. Hill . . 225, 236 237 Metropolitan Ass. v. Fetch 85 Metropolitan Rail. Co. ■. Jackson 205 Metropolitan Saloon Omnibus Co . V. Hawkins 43 Metzler v. Wood 296 297 Menst V. Harvey . 83 Meux V. Jacobs . 142 Michael v. Alestree 179 Michell V. Williams 3 7, 38 xlii INDEX OP CASES. PASE Middleton v. Bamed . . . 135 Midland Ins. Co. -o. Smith . . 8 Midland Bail. Co. i>. Daykin . . 192 Midland "Waggon Co. v. Potteries Rail. Co 351 Mildred v. Maspous . . . 128 Mill V. Comms. of New Forest . 94 Millar v. Taylor . . . .286 Miller v. Brasch . . . .217 — V. David ... 47, 49 — V. Race ... . 135 Milligan v. Wedge . . .184 Millington v. Fox . . . .335 Mills V. Colchester (Mayor) . 90, 116 Milne v. Marwood .... 255 Milner v. Maclean .... 68 Milward v. Midland Rail. Co. . . 163 Miner v. Gilmore .... 102 Minter v. Wells . . . .320 Minton v. Combes .... 81 Minster's Case .... 31 Mitcalfe v. Westaway . . .87 Mitchell V. Crasweller . . .178 — V. Darley Main Colly. Co. . 15 — V. Jenkin s . . .37 — D. Woods . . . .186 Mitten v. Faudrye . . . .120 Mixer's Case 276 Moakes v. Wcolson . . . .129 Mold V. Wheatcroft .... 88 Monmouthshire Canal & Rail. Co. v. Hill 72 Moody V. Baker .... 46 — V. Steggles .... 87 — V. Stewart . . . .386 Moore v. Meagher .... 46 — V. Met. Rail. Co. . . . 28 — V. Moore . . . .137 — V. Rawson .... 105 — V. Robinson .... 119 — V. Watson . . . .387 Moorhouse v. Woolfe . . 269 Moreton v. Harden ... 10, 177 Morgan v. L. Gen. Cm. Co. . . 166 — V. Marquis .... 130 — V. Met. Rail. Co. . . 367 — V. Powell .... 84 — 1). Ravey . . 185, 186, 389 ■ — v. Rees .... 377 Morley v. Clififord .... 112 — 0. Pincombe . . . 149 Morris v. Langdale .... 45 Morritt v. N. E. Rail. Co. . . 218 Mortimore v. Cragg . Morton v. Copeland Mosley v. Walker . Mostyn v. Fabrigas . Mott V. Shoolbred . Mounsey v. Isniay . Moyce v. Newington Moyle V. Jenkins MuUett V. Mason Mulligan v. Cole MuUiner v. Florence Mumford v. 0. W. & W. Munday v. Thames Nav. Munster v. Lamb Murgatroyd v. Robinson Mtirphy v. Ryan — V. Wilkinson Musgrave v. Bovey . Muspratt v. Gregory Murray v. Bogue — V. Clayton . — V. EUiston . — V. Hall — 1). Heath — V. Mann Myers v. Defries Mytton V. Midland Rail. N. PAQB . 350 . 302 . 110 9 108 . 89, 90, 93, 95 . 1.32 . 165 . 270 . 49 . 124, 144 Rail. Co. . 85 Works Co. 165 . 4, 50 . 95 . 116 . 164 . 45 . 150 . 313 . 321 . 301 . 65 . 311 . 254 . 381, 382, 383 Co. . 220, 221 Napiee, Ex parte . . . 360, 361 Nargett v. Niaa .... 146 National Exchange Co. of Glasgow V. Drew .... 258, 276 National Manure Co. v. Donald . 109 National Mercantile Bank, In re .140 National Prov. Ins. Co. v. Prudential Ass. Co Nash V. Dickenson . — V. Lucas . 67, 147, Needham v. Dowling — V. Rawbone Neilson v. Betts Neill V. Devonshire (Duke) Nelson v. Cherrill . — V. Liverpool Brewery Co. New Brunswick & Canada Rail. V. Conybeare New Brunswick Kail, geridge . 108 . 350 348, 349 . 50 . 122 323, 325 . Ill . 120 . 225 Co. 258, 275, 277 V. Mug- . 272 Newcastle - under - Lyne Turnpike Roads, (trustees of) v. N. Staff. Rail. Co 193 Co. INDEX OP CASES. xliii . 7, RaUCo, Newoomen v. Coulson Newsom v. CaiT Newson v. Peuder Newton v. Beck — V. Cubitt — V. Harland Nichol V. Allen Nichols V. Marsland Nicholson v. Lane. & York, Niools V. Pitman Nickels v. Eoss Nitro-Phosphate Co. v. London & St. Katherine Dock Co. Nobels Explosives Co. v. Jones Noble V. Adams — V. Dnroll Norbury (Lord) v. Kitchen Norfolk (Duke) v. Arbuthnot . North V. Smith N. E. Rail. Co. v. Wanless N. Stafford Rail. Co. v. Dale . Northam v. Hurley . Northampton (Mayor) v. Ward Northumberland (Duke) -o. Hough ton NoiTis V. Seed Norton v. NichoUs . — o. Scholefield Nottage V. Jackson . Novello V. Sudlow . Nowel V. Smith Nugent V. Smith Nuttall V. Bracewell 0. 100 35 108 145 110 19, 68 363 169 207 286 320 169 325 129 91 102 75 179 195 193 66 116 31 328 224 309, 310 287, 297 . 79 169, 214 . 102 Oakes v. Wood O'Brien v. Clement . O'Connor v. Marjoribanks Oliver v. N. E. Rail. Co. . — V. Oliver Onley v. Gardiner . 18 . 58 . 124 . 194 . 145 ■ ^^ Oppenheim v. White Lion Hotel Co. 186 Opperman v. Smith . . . 154 Original Hartlepool Col. Co. v. Gill 72 Ormerod v. Todmorden Mill Co. . 102 Ormrod v. Huth . . 250, 254, 266 Orr-Ewing v. Colquhoun ... 73 Osbondu. Meadows. . . .79 Osborne v. Gillett . . . 133, 209 — V. Jackson. . . . 163 Ostler V. Bower .... 357 Owen V. Burnett . — u. 6. W. Rail. Co. Oxlade v. N. E. Rail. Co. P. PA8E 218 203 214 Padwiok v. Knight . . 74 Page V. Cowasjee Eduljee . 129 — V. Wisden . 292 Painter v. Liverpool Gas Co. 24 Palmer v. Dewitt . . 301 — V. Grand Junction Rail. Co. 212 — V. Paul . 89 Panton v. Williams . 25, 34 Pardo V. Bingham . 13, 15 Pardington v. S. Wales Rail. Co. . 214 Paris V. Levy . . 57 Paris Skating Rink Co., In re . 364 Parker v. First Avenue Hotel Co. . 107 — V. Loach . 76 — V. Rolls . 187 — V. S. E. Rail. Co. . . 223 — V. Staniland . . 67 Parkes v. Prescott . . 59 Parkins v. Scott . 47 Parmiter v. Coupland 41, 65, 56 Parrot ii. Carpenter . . 44 Parsons v. Gingell . . 150 — V. Lloyd . 24 — V. Tinling . . 380 Parry v. Smith . 181 Partridge v. Scott . . 98 Pasley v. Freeman . 250, 252, 266, 270 Pater, £x parte . 29 — V. Baker 60 Patrick v. Colerick . . 82 Patscheider v. G. W. Rail. Co. . 222 Patterson v. Gas Light & Coke Co. . 322 — V. Wallace . 174 Pattison v. Jones . . 53 Pawson V. Watson . . 250 Payne v. Beaumorris . 47 — V. Rogers . 174 Paynton v. Wilson . . 249 Peace v. Scotcher . . 116 Pearson v. Cox . 184 — V. Spencer . 100, 109 Pease v. Gloahec 133, 141 Peek V. Gurney 274, 276 — V. N. Staff. Rail. Co. . 220 Peer v. Humphrey . . 132 Peers v. Lucy . 63 xliv INDEX OP CASES. FAaE PAGE Pelks V. Breslauer . , 386 Pomfret v. Ricroft . . .89, 101 Pemberton v. Colls . , 45 Pontifex v. Mid. Rail. Co. 1, 390 Pembroke's (Earl) Case . 115 Pope V. Whalley . 110 Penn v. Bibby . , 323 Popham V. Pickbui-n . 56 — V. Ward . 18 Popplcwell V. Hodkinson . . 89 Penniiij^ton v. Brinsep Coal Co. 103 Poole V. Huskinson . 247, 249 Peurya (Mayor) v. Best . 110 Potter V. North 88, 91 — — V. Holm . 74 Potteries Rail. Co. v. Minor . 351 Penton u Brown 348 Poulton V. L. & S. W. R. 28, 207 Pcrcival v. Stamp . 67 343 PoweU, Ex parte . . 139 Peto V. Blades . 261 — V. FaU 238 Peyton v. Mayor of London 98 — V. Head 302 Phelps V. L. & N. W. Rail. Co. 221 • — V. Salisbury 79 Philip V. Squire 159 — V. Thomas . 88 Phillips V. Barnett . 17 Power V. Fleming . 122 — V. Biron 24 — V. Shaw 46 — V. Eyre 9 Powles V. Hider 178 — V. Henson . . 150 Pozzi V. Shipton 212 — V. L. & S. W. Rail. Co. 211 Praeger v. Bristol & Exeter Rail. Co 202, — V. Naylor . 40 203 — V. "Whitsed . . 152 Pretty v. Bickmore . . . 174, 175 Philpot V. Kelley . 123 Price's Candle Co., In re . 330 Philpott V. Lehain . . 153 Price V. HeUyar 119 Pianciani ti. L. & S. W. R 218 — V. Hewett 262 Piokard v. Smith . 170, 174 18-3 225 — V. Seeley . 25 Pickering v. Dowson . 265 268 Prichard v. Powell . 113 — V. Rudd . 66 Priestley v. Fowler . 173 Pickford v. Grand Junction Rail. Co. 212 Priestly v. Pratt 139 Pigot V. Cubley 128 Prince Albert v. Strange 286 Piggott V. Birtles 151 152 Prior of Dunstable's Case 131 Pike V. Nicholas . 294 295 Pritchett v. Boevey . 33 Pike V. Polytechnic Institution 201 Proctor V. Hodgson . 100 Pilgrim v. Southampton & Dorchester Proud u HoUis 101 RaU. Co. . 64 Pugh V. Griffiths . 348 Piller V. Roberts 385 — V. Roberts 63 Pillott V. Wilkinson 123 , 126 PurceU V. Maonamara 36 Pinnington v. Gallant 100 — V. Sowler . 56 Pinnock v. Harrison 123 Purnell v. Young . 63 Pitcher v. King 353 PurseU V. Home 16 Pitt V. Donovan 60 Purves V. Laudell . 187 Planche v. Braham . 303 Puse V. Clapham 366 Plant 01. Cotterell . 145 Pym V. 6. N. Rail. Co. 210 Plasterers' Co. v. Parish Clerks' Co. 106 Piatt V. Walter 290 Playfair v. Musgrove 350 Q. Plimpton V. Malcolmson 319 — V. SpiUer . 322 Pluckwell V. Wilson 176 QuAEMAN V. Burnett . . .178 Pollard, In re. 29 Queen Dowager's Case . . 361 Pollen V. Brewer . 68 ■Queen v. Castro . 29 Polhill V. Walter . 255 — V. Lefroy . 29 Polkinhorn v. Wright 18 — V. Pirehill (Justices) . 364 PoUittr. Forest 146 — V. Yates . . 41 INDEX OP CASES. xlv PAGE PAGE R. Reg. V. Central Criminal Court . 376 — V. Cheltenham Conis. of Paving 368 Race v. 'Ward. 90, 103 — V. Chester (Mayor) . . 369 Radley v. L. & N. W. Rail. Co. 168, 208 — V. Dayman . 374 Raggett V. Fiudlater 331 — V. Derby (Councillors) . 370 Ralston v. Smith. 320 — V. Dolgelly Union (GuarJi ans) . 370 Ramadge v. Ryan . 41 — V. Dover (Mayor) . . 367 Ramsden v. Dyson . 88 ■ — V. DriscoU . 18 — V. Liipton U2 — V. E. Mark Tything . 247 Randall v. Newson . 181 — V. Eastern Counties Rail. Co. . 368 — V. Trimen . 261 — V. Elrington . 21 Rangeley v. Midland Rail. Co. 86, 87, 88 — V. Eyi-e .... . 366 Rankin v. Weguelin 137 — V. Faulkner . 29 Rapson v. Cubitt . 184 ^ V. Faweett . 372 Raphael v. Bank of England . 135 — V. Flint (Justices) . . 375 Rashdall v. Ford . 256 — 1!. Fordham . 374 Ratcliffe v. Burton . 349 — ■a. Handsley . . 374 Ravenga v. Macintosh 34 — v. Hartlepool (Mayor) . 366 RawUngs v Bell 254 — V. Hull & Selby Kail. Co. . 359 — ■!;. TiU . . 16 — V. Hutchings . . 374 Rawstron v. Taylor . . 104 — V. Kesteven (Justices) . 375 Rea V. Sheward . 120 — V, Labouchere . . 41 Read v. Coker .... . 16 — V. Leeds (Mayor) . 370 — V. Edwards . . 7 8, 1 9, 117 — V. Leicester (Deputies) . 371 — V. Fairbanks . . 143 — V. Lichfield (Mayor) . 367 — V. G. E. Rail. Co. . 20 9, 210 — V. Light . . 25 Reade v. Conquest . 28 7, 297 — V. London & St. Kath. Do L-k Co. 369 — V. Lacy .... . 298 — V. Lords of the Treasury 361, 365 Readhead v. Midland Rail. Co. 18 1, 199, — V. Maidenhead (Mayor) . 367 201 — V. Met. Bd. of Works . 105 Redgrave v. Hind . 25 0, 252 — V. Middlesex (Justices) . 375 Redway v. Macandrew . 40 — V. Mirehouse . . 373 Reece v. Miller . 116 — V. Morris . 22 Reed v. Harrison . . 67 — V. Mnsson . 74 — V. Taylor . 38 — V. Norfolk Sewers Corns. . 366 Reese River Silver Mining Co . f — V. N. Mid. Rail. Co . . 368 Smith 2£ 1, 275 — V. Paynter . 374 Reeve v. Palmer . 146 — V. Pembleton . . 49 Reeve, Ex parte . 365 — V. Percy . . 371 Reg. V. Adamson . . 372 — V. Peterborough (Mayor) . 363 — V. Allen .... . 366 — V. Petrie . . 248 — V. AU Saints' Wigan (Church - — V. PhiUimore . . 371 wardens) . 363 — V. Finder . 31 — v. Bingham . 373 — V. Ponsford . 360 — u. Birmingham Canal Co. . 368 — r. Pratt . . 243 — v. Biron .... 35 9, 371 — V. Richards . 371 — V. Boteler . 373 — V. Robinson . . 21 — V. Bristol Dock Co. . 36 2, 369 — V. Rymer . 185 — V. Bristol & Exeter Rail. Co 3f )2, 369 V. Saintiff . 246 — V. Bristol (Justices) . . 372 — V. St. Martin's in the Fields — 11. Brown . 373 (Guardians) 369, 370 — V. Burney . 246 V. S.Steph., Coleman St. Vicar) 369 — V, Cambrian Railway Co. . . 110 V, Salisbury (Marc^uis) . 110 xlvi INDEX OP CASES. PAQB PAGE Eeg. V. Smith .... . 359 Beynolds v. Clarke . . 67 — V. Strand Bd. of Works . . 71 Eich V. Basterfield . . 225 — V. U. K. Electric Teleg. Co. 24 1, 249 Eichards v. Brighton Rail. Co. . 212 — V. Walker . 25 — 1). Fry . . 155 — V. Watts. . 175 — V. Eose . . .81 98, 99 — V. West Eiding York. (Justices ) 375 — V. Symons ' . 120 — V. Wilson . 366 Eichardson v. Dunn . 269 — V. Woods & Forests Corns. . 365 — V. Gilbert . 290 Kendall v. Hay ward . 58 — 0. G. E. Eail. Co. . . 201 Eeushaw v. Bean . 106 — V. N. E. Eail. Co. . . 215 Kevisi). Smith .4,51 — V. Silvester . . 269 Eex V. Abingdon (Lord) . . 56 — V. Williamson . 279 — V. Antrobus . 344 Eichmond v. Smith . . 185 — V. Bird .... . 348 Eicketts v. E. & W. India Dock Co . 191 — V. Brecknock Canal Co. 362 Eiding v. Smith 46, 47 — V. Burnett 23 7, 238 Eigby V. Hewitt . 176 — V. Cambridge (Mayor) 371 Eigg V. Lonsdale (Earl) . 36, 114 — V. Cambridgeshire (Justices) 376 Eist V. Faux .... . 160 — V. Carlile 234 Eitchings ■;;. Cordingley . . 75 — V. Carnarvon (Justices) 376 Eiver Weir Coms. v. Adamson . 169 — V. Clear .... 366 Elvers (Lord) v. Adams . . 115 — V. Clement 29 Eiviere v. Bower . 108 — V, Cotesworth . 16 Eoberts v. Brown . . 42 — V. Croydon (Churchwardens) 369 — u. Camden . 45 — V. Crunden 74 — V. G. W. EaU. Co. . . 192 — V. Dersingham 62 — V. Orchard . 27 — V. Downshire (Marq^uis) . 248 — V. Richards . 104 — V. Grosvenor (Lord) 249 — 1). Eoberts . . .44, 46, 48 — V. Hatfield 71 — V. Smith ... 17 3, 174 — V. Hungerford Market Co. 367 Eobertson v. Powell 46 — V. Ivens .... 184 — V. Sterne 387 — V. Lloyd .... 24 3, 247 Eobins v. Barnes 63 — V. Lords of the Treasurj' . 36 I, 365 — V. Jones . 245 — V. Moore .... 23 3, 234 Eobins, Ex parte 359 — 1). Norwich (Mayor) . 370 Robinson v. Davison . 169 — V, Nottingham Waterworks Co. — V. Duleep Singh 112 36 0, 368 — V. Grave . 97 — V. Oakley 81 — 1). Marchant . 46 1), Pagham (Commissioners) 1,4 — V. Tucker 358 — V. Pedley 227 — ■I). Waddington 153 — V. St. Katherine's Dock Co. 368 — V. Whittingham 107 V. Severn & Wye Kail. Co. 36 2, 368 — 1). Wray . 114 — V. Skinner 50 Eobson V. N. E. Eail. Co. 203 — V. Sparrow 38 Eochdale Canal Co. v. Gardiner 94 — V. Stoke Damerel (Minister) 371 Eock V. Lazarus 311 — V. Suffolk (Justices) 376 Eoden v. Eyton . . .15 1, 352 — v. Sutton 238 Eodger v. Comptoir d'Escompte 141 — V. Trafford 103 Eodgers v. Maw . . . . 5 — V. Vantardillo . 238 Rodriguez v. Tadmire 35 — V. Wilson 81 Eoe V. Hammond . . . . 350 — V. Wilts (Justices) . 375 Eoffey V. Henderson 87 — u Yarborough (Lord) 74 Eogers v. Brenton . . . . 91 Reynolds v. Barford 353 Rogers v. Clifton . . . . 53 INDEX OP CASES. xlvii PAGE Rogers v. Kennay . . • . 352 — V. Parker .... 153 — V. Ehyraney Rail. Co. . 190 — V. Taylor ... 69, 85 Rolle V. "Whyte . . . .117 Rolin V. Steward .... 12 Rollins V. Hinks .... 60 Rolls V. Davis . . . 269 — V. Pierce .... 137 Rooth V. Wilson .... 79 Roper V. Harper . . . .82 Rose V. N. E. Rail. Co. . . . 203 — V. Wilson . . . . 25 Ross V. Estates Investment Co. . 276 — V. Fedden .... 7 — V. Johnson .... 128 — V. Norman .... 32 Rotheram v. Green . . . 109 Routledge v. Low . . 289, 292, 314 Rowbotham v. Wilson . . 69, 70 Rowcliffe V. Edmonds ... 44 Rowlands v. Samuel ... 39 Rowley v. L. & N. W. Rail. Co. . 211 Ruckmaboye v. Mottichund . 14, 15 Ruddock V. Lowe .... 189 Rugby Charity (Trustees) ■<>. Merry- weather 248 Rummius v. Hare . . . .137 Rushworth v. Taylor . . .123 Russell V. Briant . . . .303 — V. Nicolopulo . . . 266 — V. Shenton . . . 225, 227 — V. Smith . . . 287, 289 Ryan v. Shilcock .... 349 Rylands v. Fletcher . . .180 Sachbverell v. Porter . . .111 St. Helens Smelting Co. v. Tipping 2, 228 229, 230, 234 St. Katherine's Hospital, Ex parte . 380 St. Mary's, Newington v. Jacobs . 72 Salisbury (Marq.) v. Gladstone . 90 — V. Q. N. Rail. Co. 71 Salvin v. N. Brancepeth Coal Co. . 230 Sampson v. Hoddinot . . 102, 103 Samuel v. Payne ... 23, 24 Sandon v. Jervis .... 348 Sandwich (Earl) v. G. N. Rail. Co. . 102 Sandys, Hx parte .... 369 PAGE Sandys v. Florence . . 185 Saner v. Bilton . 384 Saunders v. Newman . 103 Saunderson v. Baker 346, 351 Savile v. Roberts . . 39 Saville v. Jardine . . 44 Sawyer v. Goodwin . . 189 Saxby v. Easterbrook . 325 Saxon V. Castle . 33 Saywood v. Cross . . 385 Scarfe v. Morgan 123 Scattergood v. Silvester . . 132 Scholes V. Hargreave . 112 Schneider v. Heath . 265, 268 Schwinge v. Dowell . 248 Scoones v. Morell . . 72 Scott V. Brown 68, 69 • — V. Dixon . 273 — V. Frith . . 232 — V. Lewis. . 356 — V. London Dock Co. . 167 — V. Lord Seymour . 9 — V. Shepherd . 2, 3 — V. Stansfield . . 4, 50 — V. Stanford . . 296 Sootthorn v. S. Staff. Rail. Co. 213 Seaman v. Netherclift . 4, 50 Scare v. Prentice . . 189 Searle v. Laverick . . 184 Sears v. Lyons . 83 Seebkrists v. East India Co. . 74 Sefton (Earl) v. Court . . 113 Seixo V. Provezende . 334 Selby V. C. P. Dist. Gas Co. 246, 248 — V. Nettlefold . . 101 Semayne's Case 347, 349 Senior v. Ward . 209 Severin v. Keppell . . 122 Sewell V. Burdick . . 141 Seymour v. Bagshaw . 274 — V, Greenwood . 10, 17 — V. Maddox . 173 Shaffers v. Gen. Steam Nav. Co . 163 Sharp V. Powell . 2, 13 Sharpe v. Hancocks . 104 Shattock V. Garden . . 353 Shaw V. Port Philip Gold Mini) ig Co. 257 Sheahan u Ahearne . 47 Shepherd v. Conquest . 300 — V. G. N. Rail. Co. . 220 — V. Harrison . 129, 141 — V. Mid. Rail. Co. . 207 — r. Payne . , 90 xlviii INDEX OF CASES. PAGE FAOE Sherborn v. Wells . . 244 Smith V. Darlow . 355 Sheridan v. New Quay Co. . 126 — -I). Fletcher . 8 Sheriff'!). James . 156 — V. G. E. Eail. Co. . . IS !0, 206 Shirley v. "Wright . . 342 — V. Hodson . 5 Shoesmith v. Byerley . 101 — V. Hughes . 264 Shotts' Iron Co. v. IngKs . 235 — V. Johnson . . 290 Shove V. Pincke . 89 — V, Kay .... . 256 Shower v. Pilch . 136 — V. Keal .... . 121 Shuttleworth's Case . 31 — V. Kemp . 116 Shuttleworth v. Le Fleming 94, 116 — V, Kenrick , 70 Siddons v. Lawrence . 381 — V. Laurence . 178 SUk V. Humphrey . . 839 — 0. L. & S. "W. Eail. Co. 198 Simmons v. Lillystone . . 226 — V. Midland Eail. Co. . 235 — V. Milligen . 27 — V. MOIes 119 — V, Mitchell . 49 — V. Mundy . . . , 136 Simons v. G. W. Kail. Co. . 220 ■ — V. Shirley 82 Simper v. Foley . 96, 106 — V. Spoouer . 60 Simpson v. Dendy . . 72 — V. St. Katherine Dock Co. 170 — V. Foley , 96, 106 — V. Sydney . 24 — V. Hartopp . 149 — V. Taylor 45 — V. HoUiday . 322 — 0. Thackerah 97 — V. L. Gen. Om. Co. Lc 1. . 200 — V. Topping . . . . 138 — V. Savage . 85, 236 — V. Tyson 90 — r. WeUs . 91, 243 — u. "Wright . 156 Siner v. G. W. Eail. Co. . 203, 208 — V. Young 122 Singer Manufacturing Go. v. 'V nison 334, Snag V. Gray .... 45 335 Sneesby v. Lauc. & York. Eail. Co. 3 Singleton v. Eastern Counties Kail. Snow V. "Whitehead . 105 Co.. . 169 Soane v. Knight 57 — V. "Williamson . 155, 156 Solomon v. Lawson . 44 Six Carpenters' Case 67, 147 — V. Vintners' Co.. 97, 99 Skelton V. L. & N. W. Rail. C 0. . 194 Solomons v. Bank of England . 135 Skinner v. L. B. & S. C. Eail. Co. 200 Soltau V. De Held . 232 Skipper v. Lane 356 Somerset (Duke) v. Fogwell . 115 Skull V. Glenister 101 Somerville v. Hawkins . 52 Skuse V. Davis 21 Southcote V. Stanley 172 Slade, In re . 375 Southee v. Denny . . . . 45 — V. Drake 91 Southerne v. Howe . . . . 265 — V. Hawley 352 Southey v. Sherwood 289 Slater v. Swann 120 Sowerby v. Coleman 90 Slocombe v. Lyall 81 — V. "Wadsworth . 243 Smale v. Burr . 142 Spackman v. Foster 15 Smart v. Hutton 345 Sparrow v. HQl . . , . 383 — V. Jones 88 Spice V. Bacon . . . . 187 — V. Morton 70 Spiers v. Brown . . . . 295 Smith V. Anderson 279 Spill V. Maule . . . . 52 — V. Ashforth 152 Spilsbury v. Micklethwaite 338 — V. Baker 5 Spooner v. Brewster 77 — V, Braine 135 Staight V. Berne . . . . 107 — V. Chadwick 2£ 0, 27 5,276 Stallard v. G. "W. Eail. Co. . 223 — V. Chatto 297 Standard Bank of Brit. S. America — V. Critchfield 357 V. Stokes 80, 81 — V. Darby 70 Stanford v. Hurlstone 84 INDEX OF CASES. xlix TAQE Stanley of Alderley (Lady) v. Shrews- bury (Earl) 108 Stannard v. Lee .... 289 — V. XJllithorue . . 189 Stansfeld v. Cubitt . . . .138 Stapley v. L. B. & S, C. Rail. Co. . 195 Staples V. Young .... 385 Stedman v. Smith ... 65, 80 Steel V. Frickett .... 72 Steele v. Branuan .... 56 Stephens v. Elwall . . . .122 — V. Myei's .... 16 Stevens v. Benning . . . 293 — V. Chapman . . . 388 — V. Mid. Rail. Co. . 39 — V. Woodward , . .178 Stevenson v. Newnham . . 133, 138 Steward v. Gromett . . . .38 — V. Young . . .61 Stewart v. N. W. Rail. Co. . . 220 Stiles V. Cardifif Nav. Co. . . 180 Stinson v. Browning . . . 243 Stoessiger v. S. E. Rail. Co. . . 218 Stoekdalo v. Hansard , . . 51 — V. Onwhyn . . 289 Stockley v. Clement . . .42 — D. Hornidge ... 39 Stockport "Waterworks Co. v. Potter Stone V. Hjdo Stoner v. Todd Stooke V. Taylor Storey v. Ashton — V. Robinson . Strachy v. Francis . Strauss v. County Hotel Co. Stuart V. Crawley . Stubley v. L. & N. W. Rail. Co. Sturges V. Bridgman Sullivan v. Mitcalfe — V. Waters . Sunbolfi). Alford . Sutton V. Moody . Swan V. Phillips Swann v. N. Brit. Aust. Co. Sweet V. Banning . Sweetapple v. Jesse . Swift V. Jewsbiiiy . — V. Winterbottom . Swinfen v. Lord Chelmsford Swire f. Francis Sykes v. Dixon _ V. N. E. Riil. Co. . 102, 230 165 323 384 7, 178 155 77 185 214 194 95, 233 280, 283 171 124 117 271 167 295 49 271 253, 256 189 258 159 210 T. Tab.art v. Tipper 57 Talley r. G. W. Rail. Co. . 221, 222 Tancred v. Leyland . 152 Tapling v. Jones . 106, 107 Tarry v. Ashton . 17 5, 183 Tate V. Hilbert 137 Tattan v. G. W. R. . 1, 389, 390 Taylor v. Ashton . . 25 5, 275 — V. Bowers 125 — r. Buller 268 - V. Cole. 19 — V. Green 261 — 1-. Hawkins . 52 — V. Humphreys 184 — r. Pillow . 293 — V. Whitehead 101 Teaoy v. Mc Kenna . 43 Tebbutt r. Bristol & E.\cter Rn ihCo 190, 207 Tenant v. Goldwin . 7, 99, 226 Tennant v. Field . 151 Terrell v. Fisher 342 Ten-y v. Hutchinson 160, 161 Tewkesbury v. Diston 130 Thomas v, Churton . 51 — V. Hunt 323 — V. Morgan . 180 — V. Phillips . 119 — V. Rhymney Rail. Co. 206 — V. Sorell 87 — V. Williams 41, 59 Thompson v. Bond . 271 — V. James . 321 » — V. Lacy . 185 — i;. Mashiter . 150 V. Ross . 160 — V. Shackell 57 Thorley's Cattle Food Co. v. IV [assar 60 Thorley v. Kerry (Lord) . 42 Thorn v. Bigland . 254 — • V. Worthing Rink Co. 324 Tnorpe v. Brumfitt . 101, 224 Thorogood v. Bryan . 176 — v. Robinson . 119, 122 Threfall v. Borwick 124 Throgmorton v. Allen 29 Tickle V. Brown 95 Tidman v. Ainslie . . 48 Tillett V. Ward 155 Timothy v. Simpson 19, 20, 25 Tinsleyr. Lacy 298 Todd V. Flight 17 d 4, 225 INDEX OF CASES. TAQE ToilJ V. Hawkins .... 54 Tomliue, Ex parte . . .74 Tompson v. DashwooJ . . . .55 Tone V. Preston .... 98 Toogood V. Spyring ... 52, 55 Toole V. Young . . . .298 Tooniey v. Brighton Rail. Co. . . 207 Tottenham v. Byrne . . .71 Townley v. Gibson .... 97 — V. Jones . . , .188 Tozer v. Cliild 5 Trent v. Hunt 153 Tuam (Archbishop) v. Robeson . 43 Tuck V. Cantm . . . .310 Tucker V. Newman .... 224 Tuff II Warniau . . . .168 Tiilk V. Met. Board of Works . . 90 Tullidge V. Wade ... 33, 161 Tnrley v. Thomas . . , .176 Turner v. Ambler .... 34 — V. Barnes .... 154 — V. Baynes .... 75 — V. Cameron , , . .148 — D. Doe 64 — V. Robinson . . . 308 Tuson V. Evans .... 41 Tulill V. W. Ham Local Board . 80 Tutton V. Darke . . . 146, 147 Twycross v. Grant . 280, 282, 284, 285 Tyrringham's Case .... 112 U. Udell v. Atherton . . . 258 TJnderden v. Burgess . . . 358 Underwood v. Hewson . . .182 United Telephone Co. v. Harrison . 323 — V. Sharpies . 325 Unity Banking Association, Ex parte 10 University of Cambridge v. Bryce . 287 Usill u Hales ..... 56 PAGE Venahles i'. Smith .... 178 Venezuela Rail. Co. v. Kisch 272, 275, 276 Vernon v. Keys .... 266 — V. Vestry of St. James', West- V. Valentine v. Penny . . . 114 Valpy, Ex parte .... 188 Vann, In re . . . . . 140 Van Toll v. S. E. Rail. Co. . . 223 Vaughan v. Menlove . . . 239 — V. Taff Vale Rail. Co. . 198 Vaughton v. L, & N, W, Rail Co. . 219 minster . 236 Verrall i). Robinson 123 Vicars v. Wilcocks 47 Vickers v. Hatz 127 Viner u Cadell 138 — 1). Vaughan . 85 Voyce V. Voyce 80 Vowles V. Miller 80 w. Wade v. Tatton Waiufor J v. Heyl . Wait V. Baker Waite V. N. E. Rail. Co. Wakeman v. Robinson Walker r. Brewster — V. Home — V. Olding — V. S. E. Rail. Co. — In re Wall V. Taylor Wallace v. Dublin & Belfast Ri — In re Waller v. Look Walmesley v. Milne — Ex parte Walter v. Brogdeu — V. Howe — V. Selfe Wanstead Looal Bd. v. Hill Warburton v. Parke Ward V. Hobbs — i\ Macaulay . — 1'. Ward — 1). Weeks — In re . Warde v. Eyre Warner v. Riddiford Warwick v. Queen's College Wason V. Walter Waterfall v. Peni=.tone Waterman v. Soper Watkin v. H.all Watkins v. G. N. Rail. Co. — V. G. W. Rail. Co. — V. Gray — 0. Maclean 270, 271 . 11 129, 130 . 20S . 17 238, 234 . 243 33, 358 . 34 . 308 304, 305 1. Co. 217 . 29 . 53 . 138 . 365 42, 45 . 290 231, 232 . 231 . 96 264, 265 . 119 . 109 . 47 . 138 . 136 22, 23 90, 91 55, 56, 57 138 80 49 101 206 80 145 INDEX OF CASES. li Watkins u Reynolds PAGR . 61 Wild V. Holt . PACE 84 Watts, Ex parte . 140 AVilde V. AVaters . 122 Weaiherston v. Hawkins . 53 Wilder v. Speer . 156 Weaver v. Busli . 18 Wilkes V. Broadbeut . 89 — V. Lloj'd . 57 Wilkins v. Day . 240, 241 — r. "Ward . . 17 AA'ilkinson v. Fairrie . 172 Webb I'. Beavan 42, 82 — V. Ha3'garth . . 65 — V. Bird . 95 — V. King . 131 — V. Eose . 286 — V. A^erity 15, 75 Webber v. G. AV. Hail. Co. . 213 AVillans r. Taylor . . 34 Webster v. AVatts . 19, 26 AVilliams v. Archer - . 146 Weekly u AVildnian . 114 — V. Clo-jgh . 173, 174 Weir V. Bell .... 2 52, 278 — V. Gesse . . 128 Welcome ti. Upton . 114 — V. Gibbs . . 188 AVeldon v. Dicks ... 2 92, 296 — V. G. A\^ Eail. Co. 197 — V. Kiviero . . 17 — V. Holmes . 150 — ■!'. Winslow . 11 — V. James . . 99 Welfare i. Brighton Eail. Co. . 206 — V. Jones . 17, 239 Weller v. L. B. & S. C. Eail. Co. . 203 — • V. Price . . 83 AVellock V. Constantine . 8 — 1'. Eichards . 177 Wells V. Abrahams 8, 133 — V. Smith . 24, 32 — V. Moody . 152 — V. Stiven . . 153 West V. Francis . 311 AA''illiamson v. Alison . 267 — V. Nibbs . 147 — D. Freer . 55 — V. Smallwood . . 23 Willingale v. Maitland . . 115 West London Com. Bank v. Kitsoi 1 279 Willis V. Martin . 260 Western Bank of Scotland v. Addie . 278 Willoughby v. Backhouse 151 Western Counties Manure Co. v. La wes 60 AVills V. Gurney . 343 Weston V. Beeman 37, 39 AA''ilson V. Anderson . 126 — V. Arnold . . 80 — V. Lane. & York. Eail. Co. . 33 Whaite v. Lane. & York. Eail. Co. . 218 — V. Newberry . 181 Wharton v. Brook , . 44 — V. Nightingale . 153 — V. Naylor . 150 — V. Eobinson . 55 Whatman v. Pearson . 178 — V. Willes . . 114 Wheatley v. Patrick . 177 Wilton V. Girdlestone . 122 Wheeler v. Whiting 19, 26 Wimbledon Com. Conserv. v. 1 Dixon 100 White V. Bailey . 64 Winchester's Case . . 62 — V. Feast . 27 Winship v. Hudspeth . 101 — V. France . 170 Winsmore v. Greenbank . . 159 — V. Garden . 133 Winter r. Brockwell . 109 — V. Geroch . 287 — T. Bartholomew . . 357 — V. Spettigue . 9, 13 1, 133 — V. Miles . 343 Whiteley v. Adams . 51 Winterbottom v. Derby (Lord) 226, 240 — V. Pepper . .17 0, 174 — V. Wright . 182 Wiitehouse v. Fellowes . . 1 5, 224 Winterburn v. Brooks . 20 Whitelock v. Hutchinson 112 Wintle V. Freeman . . 353 Whiteman v. Hawkins . 188 A\^ise V. G. W. Eail. Co. . . 212 Whitfield r. S. E. Eail. Co. . 59 Wiseman v. Broker . . 191 Whitworth v. Hall 40 Withers v. N. Kent. Eail. Co. . 206 Wicks V. Fentham . 37 Wittman v. Oppenheim . . 329 Wieler v. Schilizzi . 266 AVolton V. Gavin . 31 Wiffin V. Kincaid . 17 AA^ood V. Chart . 313 Wilby V. Elston 44 — V. Bell . . 13 8 140 144 lii INDEX OF CASES. PAGE PAGE AVood u Boosey . 314 Wright V. Tallis .... 289 — V. Leadbitter. . 87 — V. Woodgate 51 — V. Nunii . 151 Wyatt V. G. W. Rail. Co. 196 — V. Saunders . . 88 — V. Harrison .... 97 — V. Waud 103, 104 — V. White .... 40 Wooding V. Oxley . . 26 Wyld V. Pickford . . .128 213 AVoodland r. Fuller . 340 Wylie V. Birch .... 353 Woods V. Russell . . 140 Woodyer v. Haddeu . 248 WoodAvard v. Lander . 55 y. — 1). L. & K W Rail. Co.. 218 Woolen V. Wright . . 358 Yard v. Ford 110 Wooley V. Scovell . . 177 Yates V. Jack . . . .106 107 Worcester County Bank v. Dorchester Yeoman v. Ellison .... 146 Bank . . 135 Young V. Hichens . . . 119, 120 Wonncr v. Biggs . 155 — i: Macrae .... 60 Woisley V. Stuart . . 85 — V. Spencer .... 84 Worthington v. Gimson . 109 Wothcrspoon v. CuiTic . 334 Wren v. Weild 60, 61 Z. Wright V. Child . . 345 — V. Hitchcock 321, 324 Zbnobio v. Axtell .... 43 — V. Leonard . 11, 262 Zetland (Earl) v. Glover Incorpora- — V. Midland Rail. Co. . . 206 tion of Perth .... 73 ■V. Pearson . . 180 Zunz V. S. E. Rail. Co. . 220 TABLE OF STATUTES. 51 iren. III. 1st. 4. Distress— Beasts ... 149 52 Hen. III. c. 4. Distress . . 151 6 Ed. I. c. 1. Costs . . . . ' . ' . . ' . ' . . . 379 i;. 5. Waste ...... ..... 84 13 EJ. I. c. 18. Damages ... . . . . .12 c. 39. Sheriff ' . ! 340 18 Ell. I. Quia Emptores . . m 23 Ed. III. Statute of Labourers . . 91, 158 5 Ricli. II. c. 7. Forcible Entry .... .... 67-9 8 Hen. VI. c. 9. Forcible Entry . . 67 12 Ed. IV. c. 7. Fishing AVeirs 117 23 Hen. VIII. c. 15. Costs . . 379 2 Phil. & Mary, c. 7. Sale of Horses . . 132 29 Eliz. c. 4. Sheriff 354 31 Eliz. 0. 11. Forcible Entry 67 c. 12. Sale of Horses . 132 7 James I. c. 5. Constables 30 21 James I. c. 3. Patents 315-24 c. 12, s. 5. Constables .30 c. 15. Forcible Entry 67 c. 16, s. 3. Statute of Limitations 13, 93 s. 5. Trespass 83 c. 16, s. 6. Costs 379-80 29 Charles II. c. 7, s. 6. Lord's Day Observance 342-43 2 Wm. & Mary, c. 5. Distress 146-49, 152-3 4 & 5 Anne, c. 16, s. 19. Statute of Limitations 14 6 Anne, c. 31, s. 67. Fire 239 7 Anne, c. 12. Protection of Ambassadors 9 8 Anne, c. 14, ss. 2, 6, 7. Distress 153-4 c. 19. Copyright 287-92 8 Geo. II. c. 13. Copyright Engravings 310-11 11 Geo. II. c. 19. Distress 147-9, 153-4 24 Geo. II. c. 44, s. 6. Constables 392 7 Geo. III. c. 38. Copyi-ight Engravings 310 12 Geo. III. c. 73, s. 37. Fire 239 14 Geo. III. c. 78, s. 86. Fire 239 17 Geo. IIL c. 57. Copyright Engr-avings 310-11 32 Geo. III. 0. 60. Libel 41 54 Goo. III. c. 66. Copyright Sculpture .... ... 311 58 Geo. III. c. 45, ss. 75, 76. Church 76 1 Geo. IV. c. 61. Licensing 185 liv TABLE OF STATUTES. 3 Geo. IV. 0. 72, s. 24. Church . 4 Geo. lY. c. 34, s. 33. Master and Servant 4 Geo. IV. r. 83. Factors Act . . . .5 Geo. IV. c. 83, ss. 4, 6. Vagrant Act 6 Geo. IV. 0. 94. Factors Act . 7 & 8 Geo. IV. c. 18. Spring Guns . c. 29, s. 57. Stolen Goods c. 31, s. 2. Damage by Rioters . 9 Geo. IV. c. 14. Lord Tenterden's Act 11 Geo. IV. & 1 Wm. IV. c. 68. Carriers Act 1 & 2 Wm. IV. c. 32, s. 30. Game Law . c. 38. Church c. 41, s. 19. Constable — Special c. 58, s. 1. Interpleader c. 58, s. 6. Interpleader — Sheriff . i. 81, a. 19. Constables 2 & 3 Wm. IV. c. 71. Prescription Act . . . 3 & 4 Wm. IV. c. 15. Dramatic Copyright . u. 42, ». 20. Sheriff .... c. 42, ss. 37, 38. Distress c. 27, ss. 3, 18. Eeal Property — Limitation 4 & 5 Wm, 5 & 6 Wm. c. yy. IV. e. 15, IV. c. 76. Sheriff s. 13 . Municipal Coi'poration Act. s, 14 . ss. 35, 60 . s. 60 . s. 113 . c. 6 & 7 Wm. IV. c. 7 Wm. IV. & i Vict, 1 & 2 Vict. 2 & 3 Vict. 50, ss. 72, 73, 84-92. Highways . 76. Ne^-spapers .... 0. 28. Real Property — Limitation 45, s. 2. Interpleader 100, ss. 1-10. Debtor's Arrest 47, ss. 28, 54, 63-5. Metropolitan Police Act s. 79 c. 71, ss. 29, 30. Stolen Goods . s. 40. Metropolitan Police c. 84, B. 1. Poor Rate .... c. 91, .s. 55. Police Magistrates 3 & 4 Vict. c. 24. Costs e. 81. Parliament .... c. 97, s. 16. Railways .... 4 & 5 Vict. c. 45. Commissioners 5 & 6 Vict. V. 39. Factors Act c. 45. Copyright .... c. 5-5, s. 9. Railways .... c. 97, s. 5. Statute of Limitations . c. 100. Copyright .... 6 & 7 Vict. c. 96. Newspaper Libel . 7 Vict. c. 12. International Copyright . 7 & 8 Vict. u. 15. Factory Act . c. 85, s. 6. Railwaj'^s . 8 & 9 Vict. c. 18. Lands Clauses Act . 85, 93- 299 PAGB 76 23 127 27 127 239 132 69 370-72 215-19 79 76 30 126 354 392 8, 106, 116 -305, 391-2 340 154 63 339 361 367 370 343 30 243, 3, 9 59 63 354 . 31 26, 27 . 30 . 132 . 146 . 372 . 30 . 380 . 51 77, 78 . 366 . 127 287, 305 . 192 . 15 . 379 57, 59 301, 312, 314 . 173 . . 200 . 338 TABLE OF STATUTES. Iv 8 & 9 Vict. c. 20. e, c, 9 & 10 Vict. 11 & 12 Vict. 12 & 13 Vict. 14 & 15 Vict. 15 &16 Vict. 16 & 17 Vict. 17 & 18 Vict. IS & 19 Vict. ;. 95. c. 42, c. 44. c. 92, Eaihvay Clauses Act ss. 46-7, 68 .... ss. 61, 75 ss. 77, 78 S3. 103-4, 154 :. 70, s. 13. Church Building Act 100. Lunacy ..... 0. 38, s. 15. Woods & Forests . c. 93. Negligence. Lord Can)pheirs Act County Court .... 3. 9. Justices .... Justices ..... s. 5. Cruelty to Animals c. 106, s. 125. Bankruptcy c. 19, s. 11. Criminal Law . c. 99, s. 13. Evidence of Acquittal . 12. International Copyright Common Law Procedure Act, 1852 Lunacy Eailway & Canal Traffic Act , 1. Distress — Damage Feasant s. 72. Mercantile Shipping ss. 68-74. Mandamus . Colliery Bills of Lading Metropolis Local Management Act s. 88 s. 102 76. 96. 31. 60, c. 104, c. 125, c. 108. u. 111. c. 120. c. 122. Metropolitan Building Act, 1855 19 & 20 Vict. c. 38. Factory Act .... c. 97, s. 1. Sheriff .... ss. 10, 12. Limitation of Action . c. 104, s. 10. Church 0. 108, s. 39. County Coiirt . s. 43 s. 57 s. 65-6. Replevin . 20 & 21 Vict. c. 85, ss. 21-6. Divorce Act, 1857 21 & 22 Vict. c. 27, s. 2. Damages ss. 2, 5 c. 74. County Court u. 98, s. 29. Medical Eegistration . 23 & 24 Vict. c. 32, ss. 2, 3. Church . 0. 126. Interpleader .... 24 & 25 Vict. c. 96, s. 100. Larceny Amendment Act s. 103 c. 97, s^. 52, 61. Malicious Injury to Property s. 71 c. 100, s. 31. Criminal Law— Spring Guns s. 42 ss. 44, 45 25 & 26 Vict. c. 37, ss. 35-7. Merchant Shipping c. 68. Copyright. Fine Arts . c. 86. Lunacy PAGE 101, 156, 338 190, 192, 195, 196 . 197 . . 71 . 28 . 75, 77 . 31 . . 365 . 208 . 29, 157 . 372 30, 371-3 156, 391 . . 138 . 27 . . 37 309, 312, 313 49, 66 . 31 214, 219 5, 71 ,81 ,220, 223 156 140 263 373 141 374 236 175 81 173 350 13, 14 77 386 376-8 82 157 12 108 325 376 371 28 355 131 27 27 392 239 20 18, 20 28 306-10 31 Ivi TABLE OF STATUTES. 25 & 26 Vict. c. 89, s. 20. Companies Act, 1862 s. 87 . ' . Local Maiiajremeiit Act 26 & 27 Vict. 27 & 28 Vict. 28 Sc 29 Vict, £9 & 30 Vict. 30 & 31 Vict. 31 & 32 Vict. 32 & 33 Vict. 33 & 34 Vict. 34 & 35 Vict. 35 & 36 Vict. 3(j & 37 Vict, s. 163 102, ss. 75, 106. 111. Lunacy 41. Innkeeper . 92, s. 6. Eailway-s 101, ss. 25, 51. Highway 9, s. 2. Mutiny Act 60, s. 1. Dogs . 69. Carriage of Dangerous Goods 6. Metropolitan Asylums . 35, ri. 9. Stolen Goods . 127, s. 4. Railways . 131, s. 38. Company — Prospectus. 142, s. 5. Coimty Court s. 10 s. 29 . ss. 34, 35 119, s. 22. Railways . 24. Newspapers . 62. Debtors Act, 1869 71. Bankruptcy . 99. Inland Revenue . 79. Lodgers Protection Act, 1871 112, s. 15. Vagrancy 92, s. 15. Constables 38, B. 3. Vagrancy . 48. Railways 66, s. 19. Judicature Act, 1873 s. 25, Eub-s. 3 . sub-s. 8 sub-s. 11 67 37 & 38 Vict. 38 & 39 Vict. 40 & 41 Vict. 41 & 42 Vict. 42 & 43 Vict. 43 & 44 Vict. 44 & 45 Vict. 45 & 46 Vict. 57, s, 31. 50. 72. 39. 30. 31. 49, s. 42. 60, s. 40. 43. 57, s. 75, s. FAQE . . 335 . 351 . . 350 . 81 . . 31 . 186 . . 194 243-4 . . 30 . 180 . . 214 . 236 . . 132 . 351 280-4 1, 379, 384, 385, 389, 390, 391 386 Real Property 46 & 47 Vict. c. 52, s. 1. Limitation of Action- Railways County Court Judicature Act, 1875 . Factors Act . Innkeeper . Bills of Sale Act, 1878 .... 25. Summary Jurisdiction Act, 1879 Employers Liability Act, 1880 , 3. Newspaper Libel Act, 1881 . Copyright — Music BillsofSale Act, 1882 4. Costs 1. Married Women's Property Act, 1882 2 25. Bankruptcy c. 57. Patents, Designs & Trade Marks Act, 1883 c. 61, s. 34. Agriciiltural Holdings Act — Fixtures . 385 . . 378 . 205 . . 59 31, 32, 340 . 4, 138 . 59 . . 149 . 27 . . 152 . 27 220, 304 . 368 . . 85 59, 84, 363 . . 10 380-5 . . 63 . 351 . . 377 . 380 . . 127 . . 124 . 141-3 . 38 . 161-6 . 41 . 305-6 141-3 . . 385 11, 2G1 . 17 . . 341 . 137 . 315-37 . 148 A TEEATISE ON TOETS. CHAPTER I. Chap. I. uocKDurii, Kj.-j., Ill xiio J u.i.igiLiv»iT>,j ».„ ^ ._^ _._ Co. (e), says, " Formerly, when there were forms of action, there would have been little difficulty in determining whether an action was founded on contract or tort, but now that the claim is made by a narration of facts, it does not always clearly appear to which class, contract or tort, the case properly belongs." Actions for injuries arising from railway accidents are a familiar instance of this difficulty. Under the old form of pleading, such actions were always treated as torts, and the liability of the, railway (a) "Tort" is a Frencl -word forinjury missioners, 8 B. & C. 362. or wrong, and wrong is pi'operly called (d) 30 & 31 Vict. c. 142. tort, because it is wrested or crooked. (e) 3 Q. B. D. at j). 26. See Baylis v Jacob's Law Diet., "Tort." Co. Litt. 158. Idntott, L. R. 8 C. P. 345; Tatlan v (J) See C. L. P. Act, 1852, Schedule G. W. Hail. Co., 2 E. & E. 844 ; 29 L. 3. B. Q. B. 184 ; Boonnaii v. Broimi, 3 Q. B. (c) Per Bayley, J., Hex v. Pagham Com- 516. Ivi TABLE OF STATUTES. PAQE 25 & 26 Vict. c. 89, s. 20. Companies Act, 1862 335 s. 87 351 s. 163 350 c. 102, ss. 75, 106. Local Management Act 81 c. 111. Lunacy 31 26 & 27 Vict. c. 41. Innkeeper 186 c. 92, s. 6. Railway.'? 194 27 & 28 Vict. e. 101, ss. 25, 51. Highway 243-4 28 & 29 Vict. c. 9, s. 2. Mutiny Act 30 u. 60, s. 1. Dogs 180 29 & 30 Vict. c. 69. Carriage of Dangerous Goods 214 30 & 31 Vict. c. 6. Metropolitan Asylums 236 c. 35, s. 9. Stolen Goods 132 c. 127, s. 4. Railways 351 ERRATA AND ADDENDA. Page 44, line 2 from top of page, after the words "if so," add " for the jury to say.* 63, lines 3 and 15 from foot of page, /o)' "just" nod "first." 88, note {n),for " Mostyn" read " Martyn.'' 109, line 14 from top of page, for " servient " read " dominant." 109, note {g),for "23 L.J." read "28 L.J." 141, note {b),for " Pearse" read "Pease." 148, note (h),for " Maine" read " Ilawe.''' 292, note (ii), /or "Level" read "Lover." 346, note (o), for " Crohe " road " Cooke." 37 it 38 Vict. c. 57, s. 1. Limitation of Action— Real Property . . . . 63 38 & 39 Vict. c. 31. Railways 351 c. 50. Cciraty Court 377 c. 72. Judicature Act, 1875 380 40 & 41 Vict. c. 39. Factors Act ... 127 . 41 & 42 Vict. c. 30. Innkeeper 124 e. 31. Bills of Sale Act, 1878 141-3 42 & 43 Vict. u. 49, s. 25. Summary Jurisdiction Act, 1879 .... 38 43 & 44 Vict. c. 42. Employers Liability Act, 1880 161-6 44 & 45 Vict. e. 60, s. 3. Newspaper Libel Act, 1881 41 45 & 46 Vict. c. 40. Copyright— Music 305-6 c. 43. BillsofSale Act, 1882 141-3 c. 57, s. 4. Costs 385 c. 75, s. 1. Married Women's Property Act, 1882 . . 11,261 s. 2 17 46 & 47 Vict. c. 52, s. 25. Bankruptcy 341 s. 54 137 c. 57. Patents, Designs & Trade Marks Act, 1883 . . . 315-37 c. 61, s. 34. Agric\jltural Holdings Act — Fixtures . . . 148 A TEEATISE ON TOETS. CHAPTER I. Chap. I. OP TOETS GENEEALLY. A TORT (a) is a wrong independent of contract (h), and to con- Definition of stitute a tort two things are requisite, a wrongful act committed ^°''*' by the defendant, and legal damage to the plaintiff (c). Formerly (before the passing of the Judicature Acts, in 1873 and 1875), when there were forms of actions, the distinction between actions founded on contract, and those founded on tort, was extremely important. The form of action then involved serious conse- quences in regard to the form of plea, and also as to costs and other matters. At the present time the great importance of the distinction appears to bear upon the question of costs, more especially with reference to s. 5 of the County Courts Act, 1867 id), and the Eules of the Supreme Court, 1883, 0. LXV., r. 12. Cockburn, C.-J., in his judgment in Pontifex v. Midland Railivay Go. (e), says, " Formerly, when there were forms of action, there would have been little difficulty in determining whether an action was founded on contract or tort, but now that the claim is made by a narration of facts, it does not always clearly appear to which class, contract or tort, the case properly belongs." Actions for injuries arising from railway accidents are a familiar instance of this difficulty. Under the old form of pleading, such actions were always treated as torts, and the liability of the railway [a) "Tort" is a French word for injury missioners, 8 B. & C. 362. or wrong, and wrong is properly called (d) 30 & 31 Vict. c. 142. tort, because it is wrested or crooked. (e) 3 Q. B. D. at p. 26. See Baylis v. Jacob's Law Diet., "Tort." Co. Litt.158. Urdott, L. E. 8 C. P. 845; Tattmi v (h) See C. L. P. Act, 1852, Schedule G. TV. Bail. Co., 2 E. & E. 844 ; 29 L. J. B. Q. B. 184 ; Boorinan v. Brown, 3 Q. B. (c) Per Bayley, J., Eex y. Fagham Com- 516. A TREATISE ON TOETS. Chap. I. Innocent act may become tortious. Injury to right not exclusively based on right of property. Eemoteness of damage. company was put in issue by the plea of iiot guilty (/), on the ground that the gist of the action was negligence (' ^6 are loUowed by special damage, an action lor slander wiU "!!°„™^^^^°^''^ ^^- Ttius where the defendant falsely and maliciously spoke and published of the wife of the plaintiff, who assisted him in his business, certain words charging her with having committed adultery upon the premises where the plaintiff resided and carried on business, whereby the plaintiff was injured in his business, and certain specified persons ceased to deal with him, it was held that an action was maintainable (x). Loss of hospitality of friends is sufficient special damage to support an action for slander of a married woman, although her husband is living and bound to maintain her (y). Where a wife brought an action for defamatory words occasioning to her the loss of the consortium of her . husband, it was held that the cause of complaint would not sustain the action, for that the special damage did not show in the conduct of the husband a natural and reasonable consequence of the slander (z). Where bjr reason of the defamatory words spoken, a woman was excluded from a religious society, it was held that the action would not lie, as she did not receive any temporal damage (a). If in consequence of the utterance of a slander a man breaks off his engagement to marry a woman, the woman will have a cause of action against the utter er of the slander (6). Where a servant {g) BoUnsonv. Marcliant, 7 Q. B. 918; Wils. 62. Brown v. Smith, 13 C. B. 596. (y) Dames v. Solomon, L. E. 7 Q. B. (r) Irwin v. Brandwood, 1 H. & C. 112 ; 41 L. J. Q. B. 10 ; Moore v. 960, 33 L. J. Ex. 267. Meagher, 1 Taunt. 39. (s) Foulger v. Kewcomh, L. R. 2 Ex. (z) Lynch v. Knight, 9 H. L. Gas. 577. 327, 36 L. J. Ex. 169. ' \a) Roberts v. Roherts, 33 L. J. Q. B. (<) Ingram v. Lawson, 6 Bing. N. C. 249, 5 B. & S. 384. This appears to be 212. a very unsatisfactory decision : the de- (ij) Babonneau v. Farrell, 15 C. B. cision is said to have been reversed in 360. the Exchequer Chamber, see " Roscoe's (x) Riding y. Smith, 1 Ex. D. 91. A Evidence" (11th ed.), at p. 517; if so, verbal statement charging a woman with none of the Reports have noticed it, and unchastity in the City of London is the only reference given is to the case actionable ^cr se according to the custom when it was before the Court of Queen's of the City ; Robertson v. Powell, 2 Selw. Bench. N. P. 1224 : so also, by the custom of (b) Davis v. Gardiner, 4 Co. 166, pi. the City of Bristol, Poicer v. Shaw, 1 II ; Moody v. Baker, 5 Cowp. 351. LIBEL AND SLANDEE. 47 loses his situation in consequence of a defamatory statement, he Chap. III. can maintain an action against the person uttering it (c). It is suf3&cient for the plaintiff to show that he has suffered some temporal disadvantage in consequence of the utterance of the slander, there need not be an actual pecuniary loss (d). Where an action for slander is brought in respect of words not actionable in themselves, but only in respect of the special damage caused thereby, the words used must be of a defamatory nature, otherwise the action is not maintainable (e). It is also essential that the special damage should be the natural and probable consequence of the slander (/). Thus, where the plaintiff alleged in his claim that he was a candidate for member- ship of the Reform Club, but upon a ballot of the members was not elected ; that a meeting of the members was called to consider an alteration of the rules regarding the election of members ; that the defendant falsely and maliciously spoke and published of the plaintiff as follows : " The conduct of the ' plaintiff' was so bad at a club in Melbourne that a round robin was signed urging the committee to expel "him; " as, however," he was "there only for a short time, the committee did not proceed further," whereby the defendant induced a majority of the members of the club to retain the regulations under which the plaintiff had been rejected, and thereby prevented the plaintiff from again seeking to be elected to the club ; it was held that the claim disclosed no cause of action, as the damage alleged was not the natural and probable cause of the defendant's words (.(/). The unauthorized repetition of the slander by some third party is not the natural and probable consequence of the words spoken, and therefore will not constitute special damage sufficient to support an action against the original utterer (h). Where special damage is the direct consequence of the utterance of a slander, it is no defence for the utterer to allege that he (c) Knight v. Gibbs, 1 Ad. & E. 46 ; (/) lA/nch v. Knight, sitpra; Vicars see also Payne v. Beawnorris, 1 Lev. v. Wilcocks, 8 East, 1 ; Ashley \. Harri- 248. son., 1 Esp. 48, 1 Peake, 194 ; Ward v. (d) Haddan v. Lott, 15 C. B. 411 ; 24 Weeks, 1 Bing. 211. L. J. C. P. 49. See, however, Allsop v. {g) Cliamberlain v. Boyd, 11 Q. B. D. Allsop, 5 H. & K 534, where sickness 407 (C. A. ). and distress of mind were held in- [h) Ward v. Weeis, 7 Bing. 211, M. & sufficient. P. 808 ; Parkiiis v. Scott, 1 H. & C. 153, (e) Miller v. David, L. R. 9 0. P. 31 L. J. Ex. 331 ; Dixon v. Smith, 5 H. 118 ; Sheahan v. Ahearne, 9 Ir. R. C. L. & N. 450. See judgment of Kelly, C. B., 412 ; Kelly v. Partington, 5 B. & Ad. in Biding v. Smith, 1 Ex. D. at p. 94 645. 48 A TREATISE ON TORTS. Chap. III. merely repeated what he heard someone else say, since " as great an injury may accrue from " the -wrongful repetition, as from the first publication or utterance of the slander. The person who repeats it may give greater weight to the calumny, and may be actuated by greater malice than the original utterer (i). The law as to what defamatory words are actionable per se, as well as to what constitutes special damage when they are not so actionable, has for a long time been uncertain and contradictory, and even at the present day can hardly be considered to be in a very satisfactory state. In 1703 Holt, C. J., speaking of actions for slander, observes, " The opinions of late times have been in many ways different from those of former days in relation to actions for words, and judgments have gone different ways .... but for my part, when- ever words tend to take away a man's reputation, I will encourage such actions, because so doing will constitute much to the preservation of the peace " {j). In 1862 the question as to what constituted special damage, so as to afford a foundation for an action for defamatory words not actionable 2}er se, was fully discussed in the House of Lords, in the case of Lynch v. Knight, 9 H. L. C. 677. In the coui'se of his judgment, Lord Wensleydale observes (at p. 600), " In the case of Vicars v. Wilcocks, I must say the rules laid down by Lord Ellenborough are too restricted. I am much influenced by the able reasoning of Mr. Justice Christian. I strongly incline to agree with him, that to make the words actionable, by reason of special damage, the consequence must be such as, taking human nature as it is, with its infirmities, and having regard to the ]'elationship of the parties concerned, might fairly and reasonably have been anticipated, and feared would follow from the speaking of the words, not what would reasonably follow, or we might think ought to follow." In 1863 Lord Blackburn (then Blackburn, J.), observes (fc), speaking as to what constitutes special damage in the case of a defamatory statement respecting a woman, " It must be owned that the law on this subject does not stand upon a very satis- factory footing." The rule which is now acted upon in this class of cases appears (i) M'Phnrson v. Daniels, 10 B. & C. {h) Roberts v. Roberts, 33 L. J. Q. B 273 ; Tidman v. Ainslie, 10 Ex. 63. at p. 251. (j) Baker v. Pierce, 6 Mod. Rep. 24. LIBEL AND SLANDEE. 49 to be that laid down in the Court of Exchequer, in Limhy Chap. III. V. Allday, 1 C. & J. 805, where Bayley, B., says, "Every authority which I have been able to find, either shows the want of some general requisite, as honesty, capacity, fidelity or the like ; or connects the imputation with the plaintiff's office, trade or business" (l), A statement, false and malicious, but not in itself defamatory, whereby a person may, under certain circumstances suffer damage, will not support an action for defamation (11), words merely conveying suspicion are not sufficient to sustain an action (m). "Whether the words complained of are capable of a defamatory Innuendo. meaning is a question for the Court (n), whether they were, on the particular occasion, used with such a meaning, is a question for the jury (o). Words are prima facie to be construed in their ordinary sense (p), but where they are innocent or uncertain in their natural meaning, it is necessary to add a statement of the meaning intended by the words whereby they became actionable ; this statement is called the innuendo (q). In cases of this kind it was formerly necessary for the plaintiff to set out in his pleadings, by way of inducement, a prefatory averment of the meaning of the words, and then, by innuendo, to allege that they conveyed that meaning. This, however, is now rendered unnecessary by the Common Law Procedure Act, 1852, s. 61, which provides that " where words set forth, with or without the alleged meaning, show a cause of action, it shall be sufficient" (r). To support an action for libel or slander, the defamatory Malice. matter must be false and malicious ; if it is proved to be false in fact, it is presumed to be malicious in law (s). " Malice, in Distinction common acceptation," observes Bayley, J., " means ill-will |'f,^^'"Jlli'' against a person, but in its legal sense it means a wrongful act fact. done intentionally without just ca,use or excuse (t). If I give a (Q See Miller v. David, L. E.. 9 C. P. (q) SweelappU v. Jesse, 5 B. & Ad. 27. 118, decided in 1874. ('■) Eemmings v. Garson, 27 L. J. Q. QX) Miller v, David, supra. B. 252. See Bnllen & Leake, Pleading {in) Simmons V. Mitchell, 6 App. Cas. (Srded.), p. 215. 156. («) JTaise v. Wilson, 9 B. & C. 643 ; (n) Blagg V. Sturt, 10 Q. B. 899; Fishery. Clement, Id's. Si, C. i1 5; Baijlis Himt V. Goodlake, 43 L. J. C. P. 54 ; v. Lawrence, 11 A. & E. 920 ; Huntley v. Mulligan t. CoU, L. E. 10 Q. B. 549. Ward, 6 C. B. IS. S. 514 ; Darhy v. (o) Brooms v. Goslen, 1 C. B. 728 ; Ouseley, 1 H. & K. 1 ; 25 L. J. Ex. 227. Waikin v. Hall, L. E. 3 Q. B. 396. {t) Per Martin, B., Johnsmiy. Emmer- {p) Daines v. Hartley, 3 Ex. 200; son, L. E. 6 Ex. at p. 373 ; per Black- Capital & Ooicnties Bank v. Henty, 7 burn, J., Reg. v. Bembleton, L. E. 2 C. App. Cas. 741. C. E., at p. 122. 50 Chap. III. Defences. Privileged statements. Absolute or qualified. Absolute privilege. A TREATISE ON TOETS. perfect stranger a blow likely to produce death, I do it of malice, because I do it intentionally, and without just cause or excuse. If I maim cattle without knowing whose they are, or if I poison a fishery without knowing the owner, I do it of malice, because it is a wrongful act done intentionally. And if I traduce a man, whether I know him or not, and whether I intend to do him an injmy or not, the law considers it as done of malice, because it is wrongful and intentional. It equally works an injury, whether I meant to produce an injury or not, and I had no legal excuse for the slander ; there shall be a remedy against me for the injury it produces. And the law recognises the distinction between those two descriptions of malice — ^malice in fact and malice in law, in actions for slander" (tt). The two most ordinary defences to an action for defamation are, either that the statement complained of was a privileged communication, or that it was justified, i.e., true in fact. The privilege with which certain statements are clothed, is either absolute or qualified. The privilege is absolute when it attaches to the office or position which a person holds, or to the document in which it is contained, and such privilege cannot be avoided, even by proof of actual malice (u). The privilege is qualified when the statement is made in dis- charge of a duty, or with reference to a matter of public interest, and is taken away where actual malice can be shown. Absolute privilege attaches to all words uttered by judges (x), counsel, and advocates (y), and witnesses (s) in the course of legal proceedings before a Court of Justice, for " neither party, witness, counsel, jury, or judge can be put to answer civilly or criminally for words spoken in office " (a). The object of this immunity, as stated in the judgment of the Privy Council in Hart v. Gimipach (b), is "to secure the free and fearless discharge of high public duty in the administration of justice." It also attaches to observations made by a coroner when (tt) Bromage v. Prosser, 4 B. & C. at p. 255. (tt) See Scott v. Stantfeld, L. R. 3 Ex. 220. (x) Scott V. Stansfeld, L. R. 3 Ex. 320 ; Florjd V. Barker, 12 Eep. 23 ; Fray v. Blackburn, 3 B. & S. 576. As to the liability of a judge who exceeds his juris- diction, see Lewis v. Levy, 3 El. B. & El. 554 ; 27 L. J. Q. B. 282 ; McGregor v. Thwaites, 3 B. & C. 24 ; Eoulden v. Smith, 14 Q. B. 841. (y) Munster v. Lamh, 11 Q. B. D. 588 ; Hodgson y. Scarlett, 1 B. & A. 332 ; Needham v. Bowling, 15 L. J. C. P. 15. (z) Seaman v. NetJiercU/t, 2 C. P. D. 53 ; 46 L. J. C. P. 128. (a) Per Ld. Mansfield, in Sex v. Skin- ner, Lofft, 55. (6) L. R. 4 P. C. at p. 465. LIBEL AND SLANDER, 51 holding an inquest (c), to statements made by an oiificer when giving Chap. III. evidence before a Military Court of Inquiry (d), and to evidence ~~ given by a witness before a select Committee of the House of Commons (e). All statements made in an affidavit sworn in the course of a judicial proceeding are absolutely privileged (/), so also ai-e reports made by a military officer in the ordinary execution of his duty (g). All papers and proceedings published by order of Parliament, are absolutely privileged by statute (/t). A qualified privilege attaches to all communications made in Qualified discharge of a dutj', whether legal or moral, and if " made ho7id ^"^^^ ^^*' ,/trfe upon any subject-matter, in which the party communicating has an interest, or in reference to which he has a duty, is privi- leged, if made to a person having a corresponding interest or duty, although it contains criminating matter, -which without this privilege would be slanderous and actionable. The duty cannot be confined to legal duties, which may be enforced by indictment, action, or mandamus, but must include moral and social duties of imperfect obligation (f). Actual malice, or as it is sometimes called " malice in fact," to Definition of distinguish it from " malice in law " is thus defined by Parke, B., in Wright v. Woodgate {k), wherein he says, " The proper meaning of a privileged communication is only this ; that the occasion on which the communication was made rebuts the inference prima facie arising firom a statement prejudicial to the character of the plaintiff, and puts it upon him to prove that there was malice in fact, that the defendant was actuated by motives of personal spite or ill-will, independent of the occasion on which the communica- tion was made." (c) Thomas v. Ohurton, 2 B. & S. 475 ; that proceedings, criminal or civil, against 31 L. J. Q. B. 139. persons for the publication of papers {d) Dawlcins v. Lord Mokeby, L. E. 7 printed by order of Parliament, are to be H. L. 744 ; 45 L. J. Q. B. 8. stayed upon the deliveiy of a certificate {e) Goffin Y. Donelly, 6 Q. B. D. 307 ; of the Speaker or of the Lord Chancellor, 50 L. J. Q. B. 303. and affidavit to the effect that the publi- (/) Henderson v. Bromliead, 4 H. & cation is by order of either House of N. 569 ; 28 L. .T. Ex. 360 ; Eevis v. Parliament. This Act was passed in con- Smith. 18 C. B. 126 ; 25 L. J. C. P. 195 ; sequence of the decision in StockdaU v. Kennedy v. Eilliard,, 10 Ir. C. L. K. Hansard, 9 A. & E. 1. 195. (i) Fer Ld. Campbell, Harrison v. {g) Dawkins v. Lm-d Paula, L. K. 5 Bush, 5 El. & Bl. 344 ; 25 L. J. Q. B. Q. B. 94 ; 39 L. J. Q. B. 53. So held 25. See Whiteley v. Adams, 15 C. B. by the majority of the Court, Mellor and N. S. 392 ; 33 L. J. C. P. 94. Lush, JJ., Cockbum, C.J., dissenting. {h) 2 C. M. & R. 577. (^) 3 & 4 Vict. 0. 81, which enacts E 2 52 A TREATISE ON TOETS. Chap. III. Whether or not the occasion is privileged is a question of law for the judge (Z) ; whether there is actual malice is a question of fact for the jury (m). The onus Hes upon the plaintiff to prove actual malice (n). The principle on which it depends, whether words or writings, prima facie actionable, are justified by the occasion on which they are published, so as to put the plaintiff on proof of actual malice has been laid down in Toogood v. Spyring (o), hy Parke, B., in the following terms : " The law considers such publication as malicious, unless it is justly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his own interest is concerned. In such cases, the occasion prevents the inference of malice, which the law draws from the unauthorized communica- tion, and affords a qualified defence depending upon the absence of actual malice. If fairly warranted by anj' reasonable occasion or exigency, and honestly made, such communications are pro- tected for the common convenience and welfare of society, and the law has not restricted the right to make them within any narrow limits." " The rule," says Lord Campbell, C. J., " is that if the occa- sion be such as repels the presumption of malice, the communica- tion is privileged, and the plaintiff must then, if he can, give evidence of malice " (p). In order to entitle the plaintiff to have this issue submitted to the jury, it is not necessary that the evidence should be such as necessarily leads to the conclusion that malice existed, or that it should be inconsistent with the non-existence of malice ; but it is necessary that the evidence should raise a probability of malice and be more consistent with its existence than with its non- existence (q). Communica- Communications are privileged when made in discharge of a tions privileged (j^^v. Thus, where the directors of a company published to the ■when made m •' discharge of a shareholders a report which contained reflections upon the '^"*-^' character of the plaintiff, who was the manager to the company, {I) Senwood v. Harrison, L. R. 7 C. (o) 1 C. M. &E., at p. 193. P., judgment at p. 626. (p) Taylor v. Sawlciiu, 16 Q. B. at (m) DicJison v. Earl of Wilton, 1 F. & p. 321 ; 20 L. J. Q. B. at p. 3U. F. 426 ; Oook v. Wildes, 24 L. J. Q. B. iq) Somerville v. Hawkiiw, 10 C. B. 367 ; Mart v. Gumpach, h. R. i H. L. 590 ; Harris v. Thompson, 13 0. B. 333 ; 439. - Taylor v. Hawkins, 16 Q. B. 308 ; Spill (m) Laughton v. Bishop of Sodor and v. Maule, L. R. 4 Ex. 232 ; Laughton r. Man, L. R. 4 P. C. 495. Bishop of Sodor and Man, supra. LIBEL AND SLANDER. 53 it was held that the report was privileged, as the strictures Chap. III. upon the plaintiff were contained in the auditor's report, which it was the duty of the directors to lay before their shareholders (r). In a case where the plaintiff was a justice of the peace, and in the habit of sitting as a borough magistrate, the defendant, an elector and inhabitant, signed a memorial addressed to the Home Secretary complaining of the conduct of the plaintiff, as a justice during the election for a member to represent the borough in parliament, and praying that he would cause an enquiry to be made into the conduct of the plaintiff, and that on the allegations contained in the memorial being substantiated, he would recom- mend her Majesty that the plaintiff be removed from the commis- sion of the peace. The jury having found that the memorial was honafide, it was held to be a privileged communication, inasmuch as the plaintiff had both an interest and a duty in the subject matter of the communication; and the Home Secretary had a corresponding duty, a justice of the peace being appointed and removed by the sovereign (s). There are many cases where the duty is only moral or social, or as described by Blackburn, J., in Davies v. Snead (t), " a duty Character of imperfect obligation," in which the occasion is held to be o*^*"'™"'- privileged, as for instance, where a master answers inquiries respecting the character of a servant (u). In giving a character, it is not necessary in all cases that the information should be given in answer to an inquiry, but it is sufficient if the person giving the information bond fide thinks he is discharging a moral or social duty {x). Where a master in giving a character to a servant makes a statement which is not true in fact, he will not be liable to an action for defamation, unless it can be proved that either he was actuated by spite or ill-will in making it, or that it was made recklessly {y), or that he was aware that the statement was untrue when he made it. When it can be shown that the statement was (r) Lawless v. The Anglo-Egyp. Cotton v. Kynnersley, 15 0. B. N. S. 422, 33 L. Co., L. E, 4 Q. B. 262. J. C. P. 97. {s) Harrison Y. Bush, 5 El. & Bl. 344, {x) See judgment of Jessel, M.R., in 25 L. J. Q. B. 25. See also Lake v. King, Waller v. Loch, 7 Q. B. D. (C. A.) at p. 1 Wms. Saund. 131S ; Fairman v. Ives, 621 ; Pattison v. Jones, 8 B. & C. 578 ; 5 B. & Aid. 642. Coxhead y. Richards, 2 C. B. 569. {t) L. E. 5 Q. B. 608. (y) Sogers v. Clifton, 3 B. & P. 591 ; (u) Weatherstoii v. Hawkins, 1 T. E. Fountain v. Boodle, 3 Q. B. 11 ; James 110 ; Child v. Affleck, 9 B. & C. 403 ; v. Boston, 2 Car. & K. 7. Gardner y. Slade, 13 Q. B. 796 ; Fryer 54 A TREATISE ON TOKTS. Where confi- dential relation cstablishecl, privilege attaches. Chap. III. false to the knowledge of the person making it, there is clear evidence of actual malice (z). Where once a confidential relation is established between two parties with regard to a matter of a private nature in which they are mutually interested, whatever takes place between them in regard to that subject is privileged (a). Thus a letter from a son- in-law to his mother-in-law volunteering advice respecting her proposed marriage and containing imputations upon the person she was about to marry, was held to be a privileged communi- cation and not actionable in the absence of express malice (b). The case of Davies v. Snead (c) affords a good illustration as to how far the doctrine of privilege may be carried. There, the defendant mentioned to the rector of her parish a rumour that she had heard publicly uttered, impugning his conduct, and the conduct of his solicitor, the plaintiff, in the administration of a certain trust. The plaintiff having brought an action for slander against the defendant, the jury found that the words complained of were spoken bond fide and without malice, under the belief that it was important for the defendant's rector to know the rumour, in order that he might clear his character. The Court held that upon this finding, the communication was privileged, and that the privilege extended to the alleged slander of the plaintiff, as the communication could not be made without men- tioning him. In this class of cases, "the difficulty," observes Blackburn, J., "is to determine when it becomes right for a per- son to speak " {d). In the following instances, there being no proof of actual malice, privilege attaches. Keports made by an official to a foreign government (e) ; by an association to supply to its members information about ships (/) ; by a surveyor as to a ship ( '"^i''- 1 ■ • , n ■ , , , . , tain trespass. exclusive enjoyment ot a crop growing on land during the proper period of its full growth, and until it be cut and carried away, he may in respect of such exclusive possession maintain trespass {t). If one man throws stones or rubbish or materials of any kind, Throwing stones or pours water on another man's land without his permission, he another mTn'a commits a trespass for which he is responsible, unless he can ^^^^^> atrespass. plead some legal justification (m). Where a person places an incumbrance on another man's land, Continuing a right of action accrues from day to day until the incumbrance *^^^P^^^^=' is removed {x). If a man abuse an authority given him by law, he becomes a Abuse of license trespasser ah initio (y), as where an officer of the court neglects to rtespl^s^er°° remove goods attached, within a reasonable time, and continues "^ *"»'»"■ on the premises in possession (z). Thus where the defendant, who was landlord to the plaintiff, from whom rent was due to him had, in order to make a distress, entered on the premises by forcibly breaking in a window, and seized and sold his goods, it was held that this mode of entry being unlawful in itself, rendered the defendant a trespasser ah initio (a). At common law anyone who had a right of entry into lands. Forcible entry &c., might regain possession thereof by force ; but this Hberty ^""^ detainer. being much abused, to the breach of the public peace, it was found necessary that it should be restrained by statute (b), it was therefore enacted by 5 Eic. 2, c. 7 (c), "that none henceforth make entry into any lands and tenements, but in cases where entry is given by the law, and in that case not with strong hand, nor with multitude of people, but only in a peaceable and easy manner." "When a person having the legal title to land is in (s) Co. Litt. 4 b ; Parker v. Staniland, 146 a. ; 1 Smith, L. C. 11 East, 366 ; Evam v. Moherts, 5 B. & (2) Jiecd v. Harrison, 2 W. Bl. 1218 ; C. 837. Aitkenhead v. Blades, 5 Taunt. 198. (0 Per Lord Ellenborough, C. J., Croshy (a) Attack v. Bramwell, 32 L. J. Q. B. V. Wadsworth, 6 East, 609. 146 ; 3 B. & S. 520 ; Nash y. Lxicas, L. {u) Reynolds v. Clarke, 2 Ld. Eaym. E. 2 Q. B. 590. 1399. (b) Jacob's Law Diet., 7th Ed., (x) HolmesY. Wilson, 10 Ad. & E. 503 ; " Eoroible Entry." Bower v. Oook, 4 C. B. 236 ; see Pereival (e) See also 8 Hen. 6, c. 9 ; 31 Eliz, V. Stamp, 9 Ex. 167. c. 11 ; 21 Jac. 1, c. 15. (y) Six Carpciiters' Case, 8 Coke Eep. F 2 68 A TREATISE ON TORTS. Chap. IV. actual possession of it, the attempt to eject him by force brings the person who makes it within the provisions of the statute against forcible entry (d). If a person who has a legal right of entry upon land which is in the possession of a wrong-doer, is allowed to enter peaceably through the open door, it is still illegal for him to turn out the wrong-doer with violence (e). To constitute a forcible entry or detainer it is not necessary that anyone should be assaulted, but only that the entry or detainer should be effected with a strong show of force (/). The question as to whether the only remedy for a forcible entry is by indictment under the Statute of Eic. 2, or whether an action will lie as well, at the suit of the person in possession, has of late years been frequently before the Courts. The decisions of the judges on the point are somewhat difficult to reconcile, and the law on the subject can hardly be considered at present to be finally settled, though the balance of judicial opinion inclines to the view that an action can- not be maintained, and that a statement, in an action for trespass, that the entry was forcible, is mere matter of aggravation and not a substantive cause of action (g). Fry, J., in the course of a case decided in 1881, observes : " I do not think that such a thing as an action for forcible entry is to be found in any of the books. That is because the statute makes a forcible entry indictable " {h). Where, however, the slightest independent wrong (such as an injury to furniture) is committed in the course of the forcible entry, damages can be recovered, even by a person whose posses- sion was wrongful, for the statute makes a possession obtained by force unlawful, even when it is obtained by the rightful owner (i). In a case which was recently before the Irish Courts, it was held that an action could be maintained by one who had been in possession of land without title, against the true owner of the land for forcibly entering and expelling the plaintiff from the possession and taking goods (although the property of the defen- dant) then being on the land (k). In a still more recent case, {d) lows V. Tdfm-d, 1 App. Cas. 414 ; 371 ; Beddall v. Maitland, 17 Cli. D. 45 L. J. Ex. 613. 174 ; Beattie v. Mair, 10 Ir. R. 208 ; (e) EdwicTc v. HawTces, 18 Ch. D. 199 ; Soott v. Brown, ~W. N. 1884, p. 209. 50 L. J. Ch. 577. (A) Beddall v. Maitland, 17 Ch. D. at (/) Milner v. Maclean, 2 C. & P. 17. p. 185. Ig) See Damson v. WUson, 11 Q. B. (i) Beddall v. Maitland, supra. 890 ; 17 L. J. Q. B. 196 ; Newton v. (k) Beattie v. Mair, supra. In this Harlatid, 1 Scott, N. E. 474 ; 1 M. & G. case, as well as in Beddall v. Maitland, 644 ; Harvey v. Brydges, 14 M. & W. tlie doctrine in Neuton v. Harland, 437 ; Pollen v. Breiocr, 7 C. B. N. S. which was the leading authority on this TRESPASS ON LAND. 69 however, decided in 1884, Kay, J., observes that " it is not the law Chap. IV. that a rightful owner could not use force to eject a trespasser who had gained possession of his property (I). By 7 & 8 Geo. 4, c. 31, s. 2, it is enacted that if any church, Proceedings chapel, house, stable, &c., or any building or erection used in any '^u^^'red^or trade or manufacture, or in conducting the business of any mine damage done to or any engine or machinery employed in any manufacture, or in rioters™*^ ^^ working any mine or bridge, waggon-way, &c., or truck for convey- ing minerals, shall be feloniously demolished, pulled down or destroyed, wholly or in part, by any persons riotously assembled together, the inhabitants of the hundred shall, if any damage done exceeds £dO, be liable (s. 8) to yield full compensation to the persons damnified by the offence, and also for any damage which may at the same time be done to any fixture, furniture, or goods in any such church, chapel, house, or buildings. Before such action can be maintained, the persons damnified, or the servant who had care of the property damaged, must within 7 days after the offence go before some neighbouring justice of the peace, having jurisdiction over the locality of the offence, and state upon oath the names of the offenders, if known, and submit to the examination of the justice touching the circumstances of the offence, and become bound by recognizance to prosecute, &c. ; every such action must be commenced within 3 calendar months after the commission of the offence. The damage done must exceed £dO, and the party damnified must send in a notice of claim to the high constable of the hundred, who is to exhibit such claim to two justices of the peace, who are to appoint a petty session for the pm-pose of hearing and determining such claim. Primd fame the owner of the surface is entitled to the surface Rights of_ itself and all below it, exjzire naUirce, and those who claim the ^pS cases. property of the minerals below must do so by some grant or Mines. conveyance by him or from the Crown (hi). The rights of a grantee of minerals, by whomsoever granted, must depend upon subject, was considered. It had before been from the premises is void, as offending questioned by Parke and Alderson, BB., against the statute of 5 Ric. 2 ; Edivick in Harvey v. Brydges, 14 M. & W. 442 ; v. Hawkes, supra. andbyCresswell, J., iniJamsy. ^itrrc/?, [m) Eowbotham v. Wilson, 8 H. L. 10 0. B. 821. Cas. 348 ; 30 L. J. Q. B. 49 ; Rogers v. (I) Scntt V. Brovm, mpra. See Dari- Taylor, 2 H. & N. 828 ; 27 L. J. Ex. smi V. Wilson, supra. A license given 173, by a tenant to his laudlorcl to eject him 70 A TREATISE ON TORTS. Chap. IV. Right to sup- port with reference to miuing. Adjacent mines. the terms of the deed of conveyance, but prima facie, it will be presumed, if the minerals are to be enjoyed, that a power to get them was also granted or reserved as a necessary incident (m). "Where the surface of land belongs to one man and the minerals underneath belong to another, the rule of law is that prima facie the right to support exists, and that the burden lies upon the owner of the minerals to show that the instrument under which he derives his rights gives him authority to destroy the sur- face (o). The owner of the minerals is bound to work them so as to leave sufficient support for the surface in its natural state {p), unless it can be clearly shown that, under his title, he has power to derogate from the common law right to support inherent in the owner of the surface (q). "Where the owner of minerals excavates without leaving suffi- cient support for the surface, a right of action does not accrue to the owner of the surface, until he has suffered some actual damage (r). The Court will, however, interfere by way of injunc- tion to prevent threatened damage (s). It is the natural right of each of the owners of adjoining mines, where neither mine is subject to any servitude to the other, to work his own mine in the manner which he deems most con- venient and beneficial to himself, although the natural conse- quence may be that some prejudice will accrue to the owner of the adjoining mine, so long as such prejudice does not arise from the negligent or malicious conduct of his neighbour {t) . "Where the working of mines, in however careful a manner, (n) Soiobotham v. Wilson, supra. As to the exercise of mining rights mider the Inolosure Acts, see Bucdeuch (Duke of) V. Wakefield, L. E. 4 H. L. 377 ; 39 L. J. Ch. 411 ; Gill v. DicUnsm, 5 Q. B. D. 159 ; 49 L. J. Q. B. 262. (o) Suvifries v. Brogden, 15 Q. B. 739 ; 20 L. J. Q. B. 10 ; Smart v. Mor- ton, 5 El. & Bl. 30 ; 24 L. J. Q. B. 260 ; Hext V. Gill, L. R. 7 Ch. 699 ; 41 L. J. Ch. 761 ; Harris v. liijding, 5 M. & W. 60. (p) CaledonianBail. Co.v. Sjjrot, 2 Macq. H. L. Cas. 449 ; Dixon v. White, 8 App. Cas. 833 ; Dugdale v. Boiinson, 3 K. & J. 195 ; Sext v. Cfill, snpra. {q) Aspen V. Seddon, L. E. 10 Ch. 394 ; fi-mitt V. Zlarhj, L. B. 7 Q. B. 716; Bucdeuch {Dulce of) v. Wakefield, supra ; Uadon v. Jeffcoek, L. R. 7 Ex. 379 ; Rowhotham v. Wilson, supra. In mining leases where a right to let down the surface is given to the lessee, there Is usually a covenant that he shall pay compensation for any injury done to the owner of the surface. (r) Backhouse v. Bonomi, 9 H. L. Cas. 503 ; 34 L. J. Q. B. 181 (in Court helow); El. Bl. & El. 637 ; 28 L. J. Q. B. 378. (s) Hext V. Gill, supra ; HiLnt v. Peake, 1 Johns. 70S ; 29 L. J. Ch. 785. Where removal of support threatens the exist- ence of a watercourse, see Elwell v. C'rowther, 31 Beav. 163; 31 L. J. Ch. 763. (t) Smith V. Kenriek, 1 C. B. 515 ; 18 L. J. C. P. 172. TRESPASS ON LAND. 71 has occasioned the subsidence of the land of another, although Chap. IV. not immediately adjoining, damages may be recovered in respect of the injurj' to buildings thereon erected or enlarged within twenty years, provided their weight did not occasion or contribute to the subsidence (»). Trespass will lie for encroaching on a mine, though the plain- tiff has no property in the soil above the mine, but only a right of digging [x). In an ordinary estate of copyhold the property of minerals is Minerals in in the lord, but the possession is in the copyholder, so that he can bring trespass against a stranger for interfering with his posses- sion of them (y). By setting out a highway and dedicating it to the use of the Property in the public, the owner of the land only grants a right of way over it, ways. and does not part with his property in the soil (2). The soil of a turnpike road is not vested is the trustees of the road, but remains in the persons who were entitled to it before the Act passed by which they were appointed trustees. The trustees have only the control of the highway («). The ordinary presump- tion of law as to the property in the soil of highways is thus stated by Williams, J. : — " The owner of the adjacent soil is to continue his common law riglit, viz., as proprietor of the road usque ad medium filum vice, and if he owns the soil on both sides he is entitled to the whole road " (&). Where the boundary of property is described as abutting upon a highwa}^, such boundary must be taken (in the absence of evidence the other way) to extend to the middle of such high- way (c). The provisions of the Highway Acts and the Metropolis Local Management Act, 18 & 19 Vict. c. 120, so far as they apply to (m) Hamer v. Knowles, 6 H. & N. private as a public road. It may of 454 ; 30 L. J. Ex. 102. As to the work- course be rebutted by evidence the other ing of mines under railways and canals, way; ss^ Tottenham y. Byriie, 12 Ir. C. .see Railway Clauses Consolidation Act, L. R. 388 ; Holmes v. BelUngham, 7 C. 1845, 8 & 9 Vict. c. 20, ss. 77 & 78. B. N. S. 329 ; 29 L. J. M. C. 132. It [x) Harker v. Birkbeck, 1 Win. Bl. does not apply where the road is defined 482. for the first time under a newly created (2/) Eardleyy. Granville {Earl), 3 Ch. authority, such as a Board of Inclosure I), 826. Commissioners acting under the authority (z) Every v. Smith, 26 L. J. Ex. 345 ; of Parliament : M. v. Hatfield, 4 Ad. & Lade v. Shepherd, 2 Str. 1004. E. 156. (a) Damson v. Gill, 1 East, 69. (c) Beg. v. Strand Board of Works, 4 (6) Salisbury (Marquisof) v. G. N. Rail. B. & S. 626 ; 33 L. J. M. C. 33 (Ex. Ch. Co., 28 L. J. C. P. at p. 54. This pre- 9). sumption of law applies equally to a 72 A TREATISE ON TOKTS. Chap. IV. roads or streets, are subordinate to the paramount rights reserved by the owner of the soil of the highway dedicated to the public. He may exercise all rights which are not inconsistent with the rights of passage by the public (d). Property in The presumption is that the strip of waste land which adjoins Ir^lining high- the highway belongs to the owner of the adjoining inclosed land, ■"^y- and not to the lord of the manor (e) ; this presumption may, however, be repelled by evidence of acts of ownership by him in respect of the waste land (/). "Where the strip of waste land communicates with open com- mons or other large portions of land, the presumption is either done away with or considerably narrowed ; for the evidence of ownership which applies to the larger portions applies also to the narrow strip which communicates with them () Champneys v. Arroivsmith, L. E. 421 ; 37 L. J. Q. B. 181. 2 C. R 602. (y) Strachy v. Francis, 2 Atk. 217. (c) 8 & 9 Vict. c. 70, s. 13. (2) Per Blackburn, J., in Oreenslade [d) 19 & 20 Vict. c. 104, s. 10, see V. Darby, at p. 430. Cripps' Law of the Church, 4th ed. 445. ' {a) Greenslade v. Darby, Judgment of (c) Spooncr v. Brewster, 10 Moore, 494; Blackburn, J., at p. 430. As to the 3 Bing. 136. As to the right to plant establishment of vicarages, see 4 Hen. 4, and ornament^^ a^ S^^y^'„ ^^® -^shby v. c, 12. Harris, L. R. 3 C. P. 523. 78 A TEEATISE ON TORTS, Chap. IV. Station yards. Trespasses by cattle and do- mestic animals. This enactment particularly applies to the regulations in force for the management of their station yards by railway companies. Thus, a railway company was possessed of a thoroughfare which had the appearance of a public street. The company allowed certain cabs to stand in the thoroughfare upon payment of a weekly sum by the drivers. A person, not being one of the drivers who paid, stood his cab in the thoroughfare and refused to leave when requested on behalf of the company to do so ; it was held that he was a wilful trespasser within the 3 & 4 Vict, c. 97, s. 16 (/). Where an owner of lands severed by a railway claimed compen- sation from the company, and it was submitted to a jury, who awarded him compensation, on the footing that there was to be a total separation of the land without communication being made, and he received the amount awarded as such compensation ; the verdict of the jury, and the receipt of compensation under it, was held to be an arrangement with the company, and consequently he had no right afterwards to cross the railway for the purpose of occupying his lauds, and became in so doing, a trespasser within 3 & 4 Vict. c. 97, s. 16 {g). The owner of domestic animals, such as oxen and horses, is liable for trespasses committed by them on the land of another (/i). '' It has, moreover," observes Lord Coleridge, C. J., " been held again and again, that there is a duty on a man to keep his cattle in, and if they get on another's land it is a trespass ; and that is irrespective of any question of negligence, whether great or small " (t). Whether the owner of a dog is answerable for every unauthorized entry of the animal into the land of another, is doubtful (fc). Park, J., was of opinion that a dog jumping into a field without the consent of his master was not a trespass for which an action would lie [1). It has been attempted to draw a distinction in this respect between dogs and larger domestic animals, such as oxen and horses, on account of (/) Foulgsr v. Steadmcm, L. R. 8 Q. B. 65 ; 42 L. J. M. C. 3 ; Sole v. Dighxj, 33 L. T. 824. [g) Manning v. Eastern Co. Bail. Co. , 12 M. & W. 237 ; 13 L. J. Ex. 265. See also Jones v. Taylor, 1 E. & E. 20, as to what constitutes a wilful trespass under this section. {h) Comyn's Dig. Trespass (c). Zee v. Riley, 34 L. J. C. P. 212 ; Ellis v. Loftus Iron Co., L. R. 10 C. P. 10. (i) Ellis V. Loftus Iron Co., at p. 12. See also Judgment of Williams, J., in Cox V. Burbidge, 13 C. B. N. S. at p. 438 ; 32 L. J. C. P. at p. 91. {k) Mead v. Edwards, 34 L. J. C. P. 31. (1) Broton v. Giles, 1 Car. & P. 118 ; as to trespass by pigs, see Child v. Beam, L. R. 9 Ex. 176. TRESPASS ON LAND. 7-9 the difficulty of keeping dogs under restraint, and the slightness Chap. IV. of the damage which their wandering ordinarily causes (hi). Trespass in search of game is a criminal offence hy statute {n), Trespass in hut entry on another man's land merely for the purpose of picking ^^^^^l^ of S'l™^- up dead game is not such a trespass as was contemplated by the Act of Parliament (o). At common law the owners of adjoining closes are not bound Boundaries and to fence either against or for the benefit of each other (_/;), but in ^'"''''• the absence of fences each owner is hound to prevent his cattle or other animals from trespassing on his neighbour's premises (q). By prescription, however, a landowner may be bound to maintain a Prescriptivo fence upon his land for the benefit of the occupier of tlie adjoining 2tin" *" close (r), and if through want of repair of the fence his neighbour's f^°<'^^- cattle break through and do damage, an action of trespass for injury done by the cattle will not He at the suit of him who was bound by prescription to fence (s). Where the owner of two adjoining closes (A. and B.) separated by a fence and a gate, which had always been repaired by the occupier of B., sold A. to the plaintiff, and two years afterwards sold B. to the defendant, it was held that the latter was not bound to repair the gate, unless he or his vendor had made some specific bargain with the plaintiff to that effect, and that the doing of occa- sional repairs was not evidence of such bargain (t). There is no implied obligation on the part of a lessor to keep up the fences of closes which he retains in his own hands, and which abut upon the land demised to a tenant, so as to prevent the tenant's cattle from straying on to them («). A hedgerow which forms the boundary of two estates, in general Property in belongs to the owner of the estate who has, either himself, or hedgfrand whose tenants have, been in the habit of cutting and repairing ditches. {m) See Judgment of Willes, J., in v. Hampton, i T. E. 318; Mooth v. Ready. Edwards, sitpra ; Mason y. Keel- Wilson, 1 B. & Aid. 59. ing, 1 Ld. Raym. 606 ; 12 Mod. Reji. (r) Gale on Easements, 4th ed. 460. 336. (s) Nou-cl V. Smith, Cro. Eliz. 709 ■ (») 1 & 2 Wm. 4, c. 32, s. 30.. Powell v. Salisbury, 2 Y. & J. 391. (o) Kenyan v. Ifart, 34 L. J. M. C. 87 ; (t) Boyle v. Tamhjv, 6 B. & C. 329. distinguishing Osbond v. Meadows, 31 L. As to the obligation of copyholders to J. M. C. 238. fence against the occnpiers of enclosed {p) Hilton V. Ankesson, 27 L. T. 519. lands formerly wastes of the manor, (q) Lawrence V. Jenkins, L. R. 8 Q. B. see Barber t. TVhUeley, 34 L. J. Q. B. 274 ; Glmrchill v. Evans, 1 Taunt. 529. 212. As a mle it is the duty of the actual oc- [u) Erskine v. Adcanc, L. R. 8 Ch. cupier, and not of the landlord, to keep 756 ; 42 L. J, Ch. 835. up the fences : per Buller, J., Clieetham 80 A TREATISE ON TORTS. Chap. IV. it (x). The rule, observes Lawrence, J., about ditching is this : " No man making a ditch can cut into his neighbour's soil, but usually he cuts it to the very extremity of his ovfn land ; he is of course bound to throw the soil which he digs out upon his own land, and often, if he likes it, he plants a hedge on the top of it ; therefore, if he afterwards cuts beyond the edge of the ditch, which is the extremity of his land, he cuts into his neighbour's land, and is a trespasser ; no rule about four feet and eight feet has anything to do with it " (y). Tn some cases the adjoining owners are tenants in common of the hedge forming the boundary between their respective pro- perties; where this is so, one tenant may maintain trespass against his 'co-tenant, if he grub up the hedge (z). Property in If two adjoining owners are tenants in common of a boundary *''^®^" hedge, it seems to follow that they will also be tenants in common of any trees which stand in the hedge (a). Property in The common user of a wall separating lands belonging to par y wa s. (jifferent owners is 2^iin'^ facie evidence that the wall and the land on which it stands belong to the owners of those adjoining lands, in equal moieties as tenants in common (6). When a wall for a few feet from the ground is the dividing wall between two houses, and above that is the outside wall of one of them, the lower part may be a " party-wall " and the ujjper part is not (c). If one of the two tenants in common of a party-wall excludes the other from the use of it, the remedy of the excluded tenant is to remove the obstruction (rf). There may be, however, such an actual ouster from the possession of the wall by one tenant in common, as to constitute a trespass for which the tenant ousted may maintain an action (e). Eight of sup- Where several houses belonging to the same owner are built party-wall. together, so that each requires the mutual support of the adjoin- ing house, and the owner parts with one of the houses, the right to such mutual support is not thereby lost, the legal presumption being that the owner reserves to himself such right, and at the (x) See Tutill v. TV. Ham Local Bd., Stokes, 9 Ch. D. 68 ; 47 L. J. Ch, 554. L. K. 8 C. P. 447, where tMs doctrine is As to the meaning of the term "party- applied to posts and rails. wall," see Watson v. Qray, 14 Oh. D. (y) Vowles v. Miller, 3 Taunt. 137. 192 ; 49 L. J. Ch. 243. (s) Voyce v. Voyce, Gow. 201. (c) Weston v. Arnold, L. R. 8 Ch. (a) Anon., 2 Kolle, Rep. 265 ; Water- 1084 ; 43 L. J. Ch. 123. man v. Soper, 1 Ld. Rayra. 737. (d) Watson v. Gray, supra. {b) Cxibitl V. Porter, 8 B. & C. 257 ; {e) Slcdman v. Smith, 8 El. & Bl. 1. Standard Bank of British S. America v. r TRESPASS ON LAND. 81 same time grants to the new owner an equal right, and conse- Chap. IV. quently if the owner parts with several of the houses at different times, the possessors still enjoy the right to mutual support, and such right is wholly independent of the question of the priority of their titles (/). In the metropolis the rights and duties of adjoining owners in L-espect to party walls are regulated by the Metropohtan Buildings Act, 1855, 18 & 19 Vict. c. 122 (g). The plea of libermn tenemenUim or freehold which admits the possession of the plaintiff, but asserts a title to the freehold, and a right of possession in the defendant may be pleaded as a good defence to an action for trespass (li). "Where a breach of the peace," observes Parke, B., "is com- Justification of mitted by a freeholder, who in order to get possession of his land, *''^'P'^='- assaults a person wrongfully holding possession of it against his will, although the freeholder may be responsible to the public (i), Liberum tene- in the shape of an indictment for forcible entry, he is not liable ™*''*"'"- to the other party. It is a perfectly good justification to say that the plaintiff was in possession of the land against the will of the defendant, who was owner, and that the defendant entered upon it accordingly " (k). The rightful owner cannot in any case, when he has a right of entry, be made responsible in damages for a trespass upon his own land, for he is no trespasser if he has a right to go upon it ; and where a mere intruder has been allowed to run up a hut on the owner's property, the owner may pull down the hut and remove the materials (l). It has been held that a commoner may pull down a building vn'ongfuUy erected ujion the common and which prevents his exer- cising his right as fully as he otherwise might, provided that he does no unnecessary damage (m), and there was no one living in the house at the time (n). An entry upon the land of another may be justified on the Under legal process. (/) Richards v. Rose, 9 Ex. 219. 17 L. J. Q. B. 196 ; Burling v. Reed, 11 (g) See Staiidard Bank of British Q. B. 904. S. America v. Stokes, sujrra, (m) Davies v. Williams, 16 Q. B. (h) Slocombe r. Lyall, 6 Ex. 119 ; 20 546 ; 20 L. J. Q. B. 330. L. J. Ex. 96. [n) Jones v. Jams, 1 H. & C. 1 ; 31 (t) See R. V. Oakley, 4 B. & A. 30 ; L. J. Ex. 506. As to exercise of right R. V. Wilson, 3 A. & E. 817. to demolish houses under the Metropolis {k) Per Parke, B., Barwy v. Bridges, Loe. Man. Acts, 18 & 19 Vict. c. 120, s. 14 M. & "W. 442 ; 1 Ex. 261 ; Minton v. 76, and 25 & 26 Vict. c. 102, ss. 75, 106, Combes, 9 C. B. 787; 19 L. J. C. P. see Cooper v. Wandsworth Bd., 32 L. J. 336 ; see " Forcible Entry," arde, p. 67. C. P. 186 ; Bruttony. St. George's Vestry, (I) Davison v. Wilson, 11 Q. B. 890 ; L. E. 13 Eq. 339 ; 41 L. J. Ch, 134. G 82 A TREATISE ON TORTS. Chap. IV. ground that the person making it was acting under legal process (o), but an entry made in pursuance of a warrant of a County Court authorising the high bailiff to give possession under the 19 & 20 Vict. c. 108, s. 67, is not justifiable (except in the case of the officers of the Court), unless the party obtain- ing it had a lawful right to its possession (p). A private person is justified in breaking and entering into a house without warrant, for the purpose of preventing a murder ((/), or for arresting a felon (r), but in either instance he must show that he had reasonable grounds for so acting. A trespass may be justified on the ground of the necessity of escaping from some imminent danger, or that it was committed through the plaintiff's default (0, or in consequence of the plain- tiff's wrong-doing, as where he removed the defendant's goods and the defendant followed them on to the plaintiff's land for the purpose of retaking them (m). Leayeahd A plea of leave and license is a defence to an action for Ucense. trespass. The license proved may either be an express one or one impHed by circumstances. Thus the keeping open of a house, in which there is a public billiard-table, is a license im- plied by circumstances to all persons to enter for the purpose of playing (a;). So an express plea of license may be proved by showing a right of entry into the plaintiff's house under a provision in a lease that the defendant might enter for non- payment of rent {y). An acquiescence of the plaintiff in the trespass upon an erroneous representation (to which the defen- dant was a party) of the legal obligation of the plaintiff to submit to it, will not support a plea of license {z). The license pleaded must be commensurate with and cover all the tres- passes complained of, for if some are not covered by the license the plaintiff will be entitled to damages in respect of them (a). A hcense includes, as incident to it, a power to do everything without which the act licensed cannot be done. Thus, if A. (o) Crouther v. Samsbottom, 7 T. R. (m) Patriclt. v. Colerick, 3 M. & W. 654. 483. (^) Sodson V. Walker, L. R. 7 Ex. {x) Bitchamv. Bond, 3 Camp. 525. 55 ; 41 L. j; Ex. 51. (y) Kavanagh v. Gudge, 7 M. & G. (2) Sancock v. Baher, 2 B. & P. 260. 316. (r) Smith v. Shirley, 3 C. B. 142, see {z) Roper v. Harx^er, 4 Bing. N. C. also WeU v. Beavan, 6 M. & G. 1055. 20. {t) 2 RoH.Abr, "Trespass," 565, pi. 4. (a) Adams v, Andreus, 15 Q. B. 284, TRESPASS ON LAND, B3 licenses B. to enter his house to sell goods, B. may take the Chap. IV. necessary assistance for the purpose of selling the goods (a). ' Under the 21 Jac. 1, c. 16, s. 5, in all actions of trespass Plea of tender qiuire claiisum f regit, where the defendant disclaims any" interest o^irs^sf" ' in the land on which the trespass was committed, and the trespass was involuntary or by negligence, he can plead tender before action of a sum of money as amends ih). All damages which are the natural result of and are trace- Damages. able to the trespass, are recoverable. Thus where the plaintiff brought an action against the defendant for breaking and enter- ing her house, and under a false charge that she had stolen property in it, ransacking and searching the place, wherebj'^ she was injured in her credit, it was held that the jury might give damages for the trespass as aggravated by the false charge (c). In estimating the damages the jury may take into their con- sideration the fact whether the trespass was Avilful and malicious and committed with an intention of insulting the plaintiff {d). In a case where ^500 damages had been awarded by the jury in consequence of the conduct and position of the defendant, although little actual damage had been caused ,by the act of trespass, the Court refused to disturb the verdict. " I do not laiow," observes Gibbs, C.J., " upon what principle we can grant a rule for a new trial in this case, unless we were to lay it down that a jury are not justified in giving more than the absolute pecuniary damage that the plaintiff may sustain. Suppose a gentleman has a paved walk in his paddock before his window, and that a man intrudes and walks up and down before the window, and remains there after he has been told to go away, and looks in whilst the owner is at dinner, is the trespasser to be permitted to say, 'Here is a half-penny for you, which is the full extent of the mischief I have done,' — would that be a compensation ? " (e). In trespass for cutting away part of the plaintiff's land, the defendant is bound to pay the value of the land so cut away, but not the expense of re- instating it ; for this may be more than the land was ever worth (/). {a) Dennett v. Ch-over, Willes, 195. N. 54 ; 30 L. J. Ex. 71. (5) Williams v. Price, 3 B. & Ad. 695. [d) Menst v. Harvey, 5 Taunt. 442. (c) Bracegirdle v. Olford, 2 M. & S. (e) Sears v. Lijons, 2 Stark. 318. 77 ; Bell V. TheMidland Rail. Co., 30 L. (/) Jones v. Gooday, 8 M. & W. 146 ; J, C, P. 273 ; EmUen v. Myers, 6 H, & see Holmes v, Wihon, 10 Ad. & E. 503. G 2 84 A TREATISE ON TOKTS. Chap. IV. Injunction to prevent tres- 36 & 37 Vict, c. 66, s. 25 ^S). Waste. Voluntary and permissive. Reversion, damage to. Where the trespass consists m the pulling down of a house, the damages are measured hy the" reduction in the selling value of the land without the house (g). By the Supreme Court of Judicature Act, 1873, 36 & 37 Vict, c. 66, s. 25 (8), an injunction may be grafted by the Court either before or at or after the hearing of any cause or matter, to prevent any threatened or apprehended waste or trespass, whether the person against whom such injunction is sought is or is not in possession under anj' claim or title or otherwise, or (if out of possession) does or does not claim a right to do the act sought to be restrained under any colour of title ; and whether the estates claimed by both or either of the parties are legal or equitable. Where the plaintiif 's title is not disputed, the Court will grant an injunction to restrain acts of trespass without requiring him first to bring an action (/;). Where irreparable injury would be caused before the right could be properly determined, the Court will restrain by injunction trespass by a stranger (t). The action for waste is given by the statute of Gloucester, 6 Edw. I. c. 5, whereby it lies " against him that holdeth by the law of England or otherwise for the term of life, or for term of years, or a woman that holdeth in dower.',' There are two kinds of waste, according to Blackstone: voluntary, which is a crime of commission; as hy pulling down a house ; or it is permissive, which is a matter of omission only, as by suffering it to fall for want of the necessary reparation. A tenant at will is not Kable for permissive waste (k), and a tenant for years seems liable for waste only according to the terms of his tenancy (Z). In order to maintain an action for waste, the plaintiff must have a vested interest in the reversion at the time the waste was committed (m), and must be able to prove some damage to the reversion (n). A tenant for life not made unimpeachable for waste, is responsible for permissive as well as for commissive waste (o). (g) HosUng v. WiUm, 3 Ex. 168. As to measure of damages in case of trespass on coal mine, see Mofgan v. Powell, 3 Q. B. 278 ; Wild v. HoU, 9 M. & W. 672. (A) Goodson V. Richardson, L. R. 9 Ch. 221 ; 43 L. J. Ch. 790 ; Stanford v. Surlstone, L. R. 9 Ch. 116. (t) L. & N. W. Rail. Co. v. Lane. <£• York. Rail. Co., L. E. 4 Eq. 174. (k) Harnett v.Maitland,16 M. &W. 257. (l) 1 Wms. Saund. 323d; Joim v. Hill, 7 Taunt. 392. (m) 2 "Wms. Saund. 252 ; Baeoii v. Smith, 1 Q. B. 345. (?j) Young v. Spencer, 10 B. & C. 145. (o) For examples of commissive or ■nil- reversioner. TRESPASS ON LAND. 85 The courts will interfere by injunction to restrain a tenant for Chap. IV. life, and persons having onty a limited interest in the land, from committing waste to the injury of the reversioner (p). A reversioner can maintain an action for any injury done to Rigitsof the land on which he holds the reversion, provided such injury is of a permanent character (5), or likely to be made the foundation of a right which may injure the value of his property (r). The Prescription Act, 2 & 3 Will. 4, c. 71, s. 8, reserves to the reversioner three years for resisting a claim to an easement on his estate after he has come mto possession, although the full period of prescription has previously elapsed (s). An action will not lie at the suit of the reversioner for a nuisance of a merely temporary character, such as the noise caused by passing railway trains, though his tenant pays less rent in consequence (f). The right of action by the reversioner is independent of any remedy the tenant may have in consequence of the same act injuriously affecting his interest («)• fill waste, see TForsley v. Stuart, i Bro. 27 L. J. C. P. 330 ; 5 C. B. N. S. 504 ; P. C. 377; Brury r. MoUns, 6 Ves. 328 ; Kidgill v. Moor, 9 C. B. 364 ; &« v. Martin v. Qilham, 7 A. & E. 540 ; Viner Midlaiid Sail. Co., 30 L. J. C. P. 273. V. Vaughan, 2 Beav. 466 : of permissive (s) See Bright v. Walker, 1 C. M. & R. ■waste, Oibson v. Wells, 1 B. & P. N. R, 220. 290 ; Bacmi v. Smith, supra ; Harnett v. (i) Mxmiford v. Oxford, W. uJcc of Beaufort v. Patrick, 17 Beav. 60 ; Poioell v. Thomas, 6 Hare, 300 ; C'lavering's Case, 5 Vesey, 690. (k) Hukc of Devonshire v. Elgin, 14 Beav. 530 ; 20 L. J. Ch. 495 ; see Bankart v. Tennant, L. R. 10 E(i. 141 ; Mainsden v. Dyson, L. R. 1 H. L. 129. (I) Eamsden v. Dyson, L. R. 1 H. L. at p. 170. See Mold v. Wheatcroft, 27 Beav. 610 ; L. tt- N. W. Rail. Co. v. Lane. & York. Rail. Co., L. K.. 4 Eq. 174. (m) Per Cairns, L.J., BangeUy v. Mid- land Bail. Co., 3 Ch. App., at p. 310. (n) See Att.-Gen. v. Mathias, 4 K. & J. 592 ; 27 L. J. Ch. 761 ; Potter v. North, Vent. 387. " In the case of an easement claimable under a custom," says Mr. Goddard in his work on Ease- ments (2nd ed. at p. 82), " the question may he asked whether the easement is not, in point of law, deemed to have been conferred by presumed grant by the servient owner, to which grant the domi- nant owner is legally entitled under the custom." Gaved v. Mostyn, 34 L. J. C. P. at p. 354 ; 19 C. B. N. S. 732 ; Ivimy V. Stoeker, L. R. 1 Ch. 396 ; 35 L. J. Ch. 467. (o) Co. Lift. 9a, 42a. Jones v. Robin, 10 Q. B. 620 ; Gale on Easements (5th ed.) ; Goddard on Easements (2ud ed.). An action will, however, lie for breach of a written contract purporting to grant an easement, though it is incapable of fo doing, in consequence of not being under seal. Smart v. Jones, 33 L. J. 0. P. 154. (p) As to the use of general words for creating an easement, see Wood v. Saunders, 44 L. J. Ch., Judgment of Hall, V.C, at p. 520. EASEMENTS. 89 vided that the intention to confer an easement is reasonably Chap. V. clear (g'). The grant of an easement may be made for a limited time, such as for a term of years, or until the happening of a particular event (r). If the grantor reserves an easement he can only use it for the Resewation of particular purpose for which it was originally granted (s). easement. Where, as frequently happens, no deed can be proved to have Presumed grant been executed, or even to have existed, the law, under certain "^ casement. cu-CLimstances, presumes that there was a deed by which the right was created, but that such deed was lost or destroyed. In such cases the grant is said to be implied or presumed {t). The grant of an easement to a lessee may be presumed from evidence as to the state of the premises demised, at the time when the lease was granted (m) . A man cannot derogate from his own grant. Where, therefore, the prevention of the enjoyment of an easement would be an act in derogation of his grant, the law will presume the grant of such easement (x). The grant of an easement will be presumed when it is necessary for the beneficial enjoyment of the property (y). It has been observed by a learned writer on the law of ease- Acquisition by ments (2), that " In the case of an easement claimable under a ''"^*''™- custom, the question may be asked whether the easement is not, in point of law, deemed to have been conferred by presumed grant of the servient owner, which grant the dominant owner is legally entitled to rmder the custom." A right over another man's land gained by custom is a usage attached to a locality and belongs to no individual in particular, but is confined to the inhabitants of the locality or to those who belong to the particular class entitled to the benefit of the custom (a). No custom is valid unless it can be shewn to be certain and Requisites of a custom, (q) Per Kenyon, C.J., in SJiove v. Mathews, 1 "Vent. 239 ; Palmer v. Paul, Pineke, 5 T. E., at p. 129 ; Northam v. 2 L. J. Ch. 154. Hurky, 1 E. & B. 665 ; 22 L. J. Q. B. {y) Finlimon v. Porter, L. R. 10 Q. B. 183 ; Holmes v. Seller, 3 Lev. 305. 188 ; Pomfretv. Picroft, IWm. Saunders, {r) Davis v. Morgan, 4 B. & C. 8. 322. [s] DvJce of Hamilton v. Qraliam, L. (2) Goddard on Easements, 2nd Ed. p. R. 2 So. App. 166. 82 (t) See Goddard on Easements, (a) J/ojmsc?/ v. ismay, 34 L. J. Ex. 52; p. 81. 3 H. & C. 486 ; Hall v. Nottiiigham, 1 (m) Hall V. Lund, 1 H. & C. 676 ; 32 Ex. D. 1 ; 45 L. J. Ex. 50 ; Wilkes v. L. J. Ex. 113. Broadhent, 1 Wils. 63 ; Gale on Ease- (») Popplewell V. Hodkinson, L. R. 4 ments, 5th Ed. p. 20. Ex. 248 ; 38 L. J. Ex. 126 ; Cox v. 90 A TREATISE ON TORTS. Chap. V. Custom as to sports and Ijastimes. Custom for erection of booths at fairs. reasonable in itself (fc), that there is a presumption of its existence from time immemorial (c), and that it has existed as of right (^). A custom for the inhabitants of a parish to play at all kinds of lawful games on the close of A. at all seasonable times of the year at their freewill and pleasure, is good ; but a similar custom for all persons, who happen to be, for the moment, in the parish, is bad (e). A custom for the inhabitants of a parish to erect a may-pole on the ground of a landowner and dance round it and enjoy any other lawful and innocent recreation on the ground at any time of the j'^ear is reasonable and lawful (/). A custom for the inhabitants of a village to resort to village-greens or waste- land or commons, the property of the lord of the manor, for the purpose of lawful recreation and amusement is a good custom (g). A claim by custom for the freemen and citizens of a town, on a particular day in the year, to enter upon a close for the purpose of holding horse races is a good custom (h) ; but a custom for the inhabitants of a parish to train and exercise horses at all season- able (i) times of the year, on land situate in another parish is bad, as being too wide in extent (k). A right in the inhabitants of a township to enter upon private land for the purpose of getting water from a well, is a mere easement, and not a profit a prendre, and may therefore properly be claimed by custom (I). A custom for victuallers to erect booths and place posts and tables on that part of the common waste of the manor on which a fair is held on certain days, they making a small payment in return to the lord of the manor, is a good custom (m). A claim by immemorial custom to erect a booth, during the period of a fair or market, on any part of a public highway, sufBcient (6) Marquis of Salisbun/ v. Gladstone, 9 H. L. 692 ; 34 L. J. C.'P. 222 ; Mills v. Mayor of Colchester, L. E. 3 C. P. 575 (Ex. Ch.); Fitch v. Bawling, 2 H. Bl. 393 ; Jlace v. Ward, i E. & B. 702 ; 24 L. J. Q. B. 153. (c) Bryant v. Foot (Ex. Ch.), L. R. 3 Q. B. 497 ; Shepherd v. Pmjne, 12 C. B. N. S. 433 ; 31 L. J. C. P. 297. (d) Mills V. Mayor of Colchester, L. R. 2 C. P. 476. (e) Fitch v. Rawling, supra. if) Sail V. NottiTigham, 1 Ex. D. 1 ; 45 L. J. Ex. 50. (gr) Abbott V. Weekly, 1 Lev. 176 ; Dyce V. Hall, 1 Maoq. H. L. Cas. 305 ; War- riclc V. Queen's College, 1. R. 10 Eq. 105. (h) Mounsey v. Ismay, 1 H. & C. 729 ; 32 L. J. Ex. 94. (i) When the corn is standing it is not "seasonable time," Bell v. Wardell, "Willes, 202. {k) Sowerhy v. Coleman, L. E.. 2 Ex. 96 ; 36 L. J. Ex. 57. As to the rights over a London square, see Tulk v. Met. Bd. of Works, L. R. 32 B. 94, 682 ; (Ex. Ch.)37L. J. Q. B. 272. {I) JRace V. Ward, sup7-a. (m) Smith v. Tyson, 9 A. & E. 486. EASEMENTS. 91 space being left for the public to pass, is good (m) ; but not Chap. V. during a statute sessions held for the hiring of servants, for the statute sessions were introduced by the Statute of Labourers, the first of which was passed in the reign of Edward III., so there could be no claim hj immemorial usage (o). A customary claim by the Stanners of Devonshire to divert Custom as to water from streams into theii' mines, and for that purpose to dig ""'"'"S "g . trenches over other people's lands is bad, as being unreasonable (p). No custom can prevail against an express Act of Parliament (q). Custom cannot Thus where an Act has directed that every pound throughout the Statute ^^^™^* kingdom shall contain sixteen ounces, a ciistom that every pound of butter sold in a certain market shall weigh eighteen ounces is bad ()-). Prescription is a title the law allows to supply the place of Title by grant (s), and is acquired by use and time, as when a man claims pi'^scnption. anything because he, his ancestors, or they whose estate he hath, have had or used it all the time, whereof no memory is to the contrary (t). A prescription can only be annexed to an estate in fee ; and therefore, although a tenant in fee can prescribe in his own name on his own behalf, and in belialf of those in whose interests he stands (u), a tenant for life or for years must prescribe in the name of him who hath the fee ; so likewise a copyholder must prescribe in the name of the lord of the manor (x). Only incorporeal hereditaments, such for instance as rents, Incorporeal tolls, franchises, rights of way and water (y) can be prescribed abne'ca^be** for ; and there can be no prescription except for those things prescribed for. which can be created by grant at the present day, as the law allows prescription only to supply the place of grant (z). (n) Elwood V. Bullock, 6 Q. B. 383 ; {t) Jacob's Law Diet. , "Prescription." 13 L. J. Q. B. 330. Prcscriptio est titulus ex usu et tempore (o) Simpson v. Wells, L. R. 7 Q. B. substantiam capiens ab aiictoritate Icgis, 214; 41 L. J. M. C. 105. Co. Litt. 113, b. "Antiquity of tinw {p) Bastard v. Smith, 2 M. & Kob. fortifies all titles and supposeth the best 129. As to other customary claims in beginning the law can give them,"jwer respect of mining rights which have been Ld. Hobart in Slade v. Drake, Hoh. 257; held unreasonable, see Hilton v. Earl Gale on Easements, (5th ed.) p. 151. Granville, 5 Q. B. 701 ; 13 L. J. Q. B. {ii) Per Ld. Hatherley, L.C., PFar- 193. As to rights of the bounders in ^oick v. Queen's College, L. R. 6 Cli. at Cornwall, see Rogers v. Brenton, 10 Q. B. p. 724. 26 ; 17 L. J. Q. B. 34 ; Ivimexj v. Stoeker, (x) Jacob's Law Diet. " Prescription.'' L. R. 1 Ch. 396 ; 35 L. J. Ch. 467. (y) Many of the following remarks ap- (q) 1 Black. Com. 61 ; Co. Litt. 113a. ply to profits a prendre as well as ease- (r) Nolle V. Durell, 3 T. R. 271. ments. [s) Potter V. Nm-th, 1 Vent. 387. (2) Potter v. North, supra. 92 A TREATISE ON TOETS. Chap. V. No title to land can be gained by prescription ; thus the right to the entire bed of coal lying under a close is a right to land, and cannot be claimed by prescription ; a right to take some of the coal is different {a), and may be prescribed for as a profit a prendre. In order to substantiate the claim to an easement or profit a prendre by prescription, the user must be open, un- interrupted, and of right (h). Thus in the case of a franchise, the Corporation of Bridgnorth were owners of an ancient market, and also lords of the manor in which the borough of Bridgnorth was situate. The market had from time immemorial been held in and near the High .Street. The plaintiff had a house in that street, and he and the previous owners and occupiers of the house in which he lived, as well as several other occupiers of houses in the same street, had from time immemorial erected, on market-days, stalls opposite their houses, and either used the stalls themselves, or let them to others. No tolls were ever taken in respect of the goods sold at these stalls, though they were formerly taken for similar produce exposed in the market elsewhere. In an action against the cor- poration of Bridgnorth for removing the market to another place within the borough, it was held that the right to the stalls was a right which might reasonably be supposed to have been granted by the owners of the market to the owners and occupiers of the houses, and it was sufficiently connected with the enjoyment of the houses to be claimed as appurtenant thereto (c). When the enjoyment of a privilege, which is claimed as an easement or profit a prendre, is accounted for and is consistent with the fact of there being no grant, the presumption of a grant does not arise, and therefore no title by prescription can be gained {d). Presumption as I^i ancient times it was necessary to show that the privilege had to immemorial ^jgen enjoyed from time immemorial, that is to say, from the com- mencement of the reign of Eichard I. in 1189. For some seventy (a) WilMmon v. Proud, 11 M. & W. tenant is open and notorious, aoqui- 33 ; 12 L. J. £x. 227; Clayton v. Corby, escenee by the landlord may be presumed, 5 Q. B. 415 ; 14 L. J. Q. B. 364. Gray v. Bond, 5 Moore, 534 ; Cross v. (b) As to liow far the owner may be Lewis, 2 B. & C. 686. damnified by the act of his tenant, in (c) Mllis v. Mayor of Bridgnorth, 32 respect to the acquisition of an easement, L. J. C. P. 273 ; 15 C. B. N. S. 52. see judgment of Lord Hatherley, L. C, (d) Doe v. Reed, 5 B. & Aid. 236; in Ladyman v. Grave, L. R. 6 Ch., at p. Livett v. Wilson, 3 Bing. 118 ; Boyle v. 768. Where the user and enjoyment of Tamlyn, 6 B. & C. 329. the rights over the land occupied by the enjoyment. EASEMENTS. 93 }-ears however (c) before the passing of the Prescription Act (/) Chap. V. the judges liad been in the habit of directing the jury that if they believed there had been adverse possession, as of right for more than twenty years (ra, overruling Beg. v. Cambrian Bail. Co., L. E. 6 Q. B. 422. (r) Penryn (Mayor) v. Best, 3 Ex. D. 292 ; 48 L. J. Ex. 103. (s) Macclesfield (Mayor) v. Chapman, 12 M. & W. 18. (t) Mosley v. Walker, 7 B. & C. 40 ; Macclesfield (Mayor) v. Fedley, 4 B. & Ad. 397. As to what constitutes a shop, see Pope V. Whalley, 34 L. J. M. C. 76 ; Ashworth v. Heyworth, L. R. 4 Q. B. 316. (m) Fearon v. Mitcliell, L. R. 7 Q. B. 690 ; GoldsmUw. O.E. Bail. Co., 25 Ch. D. 510 (C. A.) ; see Elwes v. Paijiu, 12 Ch. D. 468 ; 48 L. J. Ch. 831. (a;) Yard v. Fm-d, 2 Wms. Saund. 174. PllOFITS A PBENDUE. Ill customers and sell without the boundary of the market, so as to Chap. V. avoid paying market-toll, an action is maintainable against them ' ■ by the owner of the market for a disturbance (i/). It is not necessary that there should be anything actually sold to constitute disturbance of market, it is sufficient if the defendant is shown to have actively interfered in the conduct of the new market (z). Skction II. — Profits a Prendre. A profit a prendre is a right vested in one man of entering upon the land of another and taking therefrom a profit of the soil (a), such as the right to feed cattle or to take fish. It is an incor- poreal right and can be acquired only by grant or prescription. The grant of a profit a prendre must be made by deed (h). Rights of common of pasture are divided into common append- EigMs of ant, common appurtenant (c) , common pur cause de vicinage, and of'^Sture. common in gross. Common of pasture appendant is the right annexed to the owners, or occupiers of arable land, holden of the Common lord of the manor, to depasture upon the wastes of the manor "i'^^'"^''"'' such beasts as serve for the ploughing or manuring of the land, viz., horses, oxen and sheep {d). The right of common appendant originally arose in this manner, that where a lord having a certain extent of waste ground, enfeoffed anyone of a parcel of arable land to hold of his manor in socage, for services to be rendered, it was found necessary to allow the feoffee to have common of pasture in the waste ground, as incident to his tenancy, for he could not plough or manure his own land without beasts, nor could he on the other hand sustain beasts upon it, while it was sown with corn(e). From this it follows, that it is only in respect of arable land, that common appendant can be claimed, though it may be claimed by that name, as ajipendant to a farm, in fact containing {y) Bride/land v. Simpler, 5 M. & W. sliirc (Dulce of), 8 App. Cas. 135. 375. The holding out for custom must [d) When a right of common is ap- be -wilful : Brecon (Mayor) v. Edxijards, pendant or appurtenant to land, it passes 81 L. J. Ex. li. ty a grant of the land, to the successive (z) Dorchester {Mayor) v. Elisor, L. R. owners and occupiers thereof : see Sache- i Ex. 335 ; 39 L. J. Ex. 11. vercU v. Pm-ter, 2 Roll. Abr. 60, pi. i. {a) Addison on Torts, 5tli Ed. 255. (c) This kind of manorial tenure must (b) 14 Vin. Abr. Gr.int, G. (a) 2 RoUe, have had existence before the passing of Abr.Grant(g); JbsKM v.i2oJi»,10 Q. B. 620. the statute Quia Emptores, 18 Edw. I. It (c) 37 Hen. VII. 34 (Year Book) ; 4 is incapable of being created at the pre- Vin. Abr. Tit. Com. (F) ; Ncill v. Devon- sent day. 112 A TREATISE OX TORTS. Chap. V. Common aj>purtenant. Common pur cause de vicinage. pasture at the present day, for the land shall be presumed (where there is usage to sustain the claim) to have been all originally arable (/). The tenant can only have a right to depasture such cattle as are levant and couchant on his estate, that is for such and so many as he has need for the ploughing and manuring of his own land in proportion to the quantity thereof [g), and it seems that when there is more common than is necessary, the lord is entitled to take that for his own purposes (Ji). The lord may take gravel, marl, loam, &c., in the waste, so long as he does not infringe the commoners' rights (i), and it has been held that it was not an unreasonable exercise of his rights by the lord, where he dug a clay-pit on the waste, although it was proved that there was not a sufficiency of common, as claimed by the tenants (k). Common appurtenant is a right annexed to the possession and occupation of land {I), of depasturing a limited number of beasts (m) on the lord's waste, or (as the right arises from no connection of tenure) on the unenclosed land of a neighbouring proprietor. This right is claimable by prescription or grant. It only extends to the number of cattle which are levant and couchant upon the land to which the right is annexed. The number of cattle which can be levant and couchant upon the estate, is the number which the land could fairly maintain, if properly cultivated (n). A copyholder cannot lawfully claim common appurtenant without stint in respect of his copyhold tenement, but such common must be limited to the cattle levant and couchant on the tenement to which it is annexed, or the number must be ascertained by the Court rolls, or in some other manner (o). A fold course is not a several right to the herbage, but a right of common appurtenant of pasture for sheep {p). Common pur cause de vicinage is where the inhabitants of two townships, which lie contiguous to each other, have usually (/) Blackstone, Com., .vol. i. 6i9 ; Bennett v. lUeve, Willes, 231. (g) Bennett v. Beeve, supra ; Tyrring- ham's Case, i Co. Rep. 36 b. (A) Per Bayley, J., Aslett v. Ellis, 7 B. & C. 369. (i) Hall V. Byron, i Ch. D. 667. {k) Bateson v. Green, 5 T. R. 416. (I) This right of common cannot be claimed as appurtenant to a house with- out any ciu'tilage or land : Scholes v. Hargreave, 5 T. R. 46. (m) Besides suck beasts as are usually commonable, hogs, goats, and geese are included : 1 Blackstone, Com., 6.50. («) Whitelock v. Sutekinson, 2 M. & R. 205 ; Oheeseman v. Hardham, 1 B. & A. 706 ; Carr v. Lambert, L. R. 1 Ex. 168. (o) Robinson v. Duleep Singh, 11 Ch. D. 798 ; 48 L. J. Ch. 758. (p) Morley v. Clifford, 20 Cb. D. 758 ; 51 L. J. Ch. 687. TROflTS A PRENDEE, 113 intercommoned with one another, the beasts of one straying Chap. V. naturally into the other's fields, without any molestation from either. This, indeed, is only a permissive right, intended to excuse what in strictness is a trespass in both, and to prevent a multiplicity of suits {q) ; and therefore either township may inclose and bar out the other, though they may have inter- commoned time out of mind. Neither hath any person of one town a right to put his beasts originally into another's common ; but if they escape and stray thither of themselves, the law winks at the trespass (r). To establish a common pur cause de vicinacjc, an inter- commoning between the inhabitants of the two districts must be proved : it must be shown that there was an absence of fences between the two districts, that the cattle immemorially strayed from one field to the other without let or hindrance, and that there was mutual acquiescence in their so doing by the inhabitants (s). In common jpur cause de vicinage cattle can only be turned out in the commoner's own common, and stray into the adjoining common, therefore where there were three vills, each of which has a common, A., B,, and C, and vill B. lies between A. and C, vill B. may intercommon with A. or C, but A. cannot inter- common with C. So, also, neither party can put on the common more beasts than his own common will maintain, so that if there were a vill with a large common, and a vill with a small common, the owner of land in the vill with a small common cannot put on the entire common more beasts than the small common could maintain (f). The lord of a manor may haye in respect of the waste of his own manor, a right to turn his own cattle upon the common of an adjoining manor (m). Common in gross is a right of common of pasture, such as is Common. neither appendant nor appurtenant to land, but is annexed to a *"^"^^*' (g) This right is not strictly a profit a Corbet's Case, 7 Co. Eep. 5 ; Chcesman v. prenkro. See judgment of Ld. Wensley- Ifardham, 1 B. & Aid. 710. dale, Jones v. JRoMn, 10 Q. B. 635. (s) Clarke v. Tinker, 10 Q. B. 604 ; (r) 1 Blackstone's Com. 650 ; Co. 15 L. J. Q. B. 191 ; Prichard v. Powell, Litt. 122 a. Common of Shaok — or the 10 Q. B. 589 ; Jones v. Moiins, supra. right of persons ocoupying lands lying (t) Corns, of Sewers v. Glasse {Epping together in the same common field, to Forest Case), L. R. 19 Eq. ; judgment of turn out their cattle after harvest to feed Jessel, M.R., at pp. 160, 161. promiscuously in that field— is a right (w) Sefton (Earl) v. Court, 5 B. & C, substantially of the same kind. See 917. I 114 A TREATISE ON TORTS. Chap. V. Right of sole pasturage, cattlegates. Common of turbary. Common of estovers. man's person, and is claimable by grant or prescription (a;). Common in gross, being a personal right, and not appendant or appurtenant to land, cannot be granted over so as to burthen the land for all time in the hands of subsequent owners and occupiers of the land over which the right has been granted (z/). A claim of exclusive right of common for cattle levant and couchmit, is not conclusive that the right claimed is in its nature appurtenant, but such right may have had its origin in a grant in gross. If such right is shown to have existed in gross without question for a long period, it ought to be sustained, for " antiquity of time justifies all titles, and suj)poseth the best beginning the law can give them " («). The right of common in gross is not destroyed by severance, i.e., by a release of part of the land which is subject to the burthen of such right (a). In some manors in the north of England certain customary tenements are held of the lord of the manor, called cattlegates, the owner of a cattlegate has a sole and several right to the pasturage of certain waste moorland belonging to the manor, but the property of the soil remains vested in the lord (6). They are held of the lord of the manor according to the custom of the manor, and j)ass by customarj'^ conveyance, and in fact are subject to the same rights and liabilities as copyhold estates them- selves (c). Common of turbary is the right to cut and carry away turf from the land of another, and is appendant or appurtenant to a house, but not to land, for the turfs are to be burnt in the house (cl). The right only extends to the taking of a quantity sufficient for use in the house, and a claim to cut and carry away turf for sale (e) or for other purposes (/) is bad. Common of estovers, is a right to cut and lop trees and shrubs on another man's land, and to carry away such loppings for the purpose of repairing, or burning in, the house to which the right (x) 1 Blackstoue's Com. 651. ly) VTeeJcly v. Wildman, 1 Ld. Eaym. 407. {z) Jolinson v. Barnes, L. R. 7 C. P. 592, affirmed 8 0. P. 527; see Mellor v. Spateman, 1 Wms. Saund. 346. {a) Johiison v. Barnes, supra. (6) As to the nature of cattlegates, see JBigg v. Lonsdale (Earl), 1 H. kN. 935 ; 25 L. J. Ex. 73 ; on appeal, 26 L. J, Ex. 196 ; Robinson v. Wray, L. R, \ C. P. 490. Instances of sole pastui'age are to be found ou the South Downs in Sussex, ^cj-Ld. Abinger, C.B., Welcome V. Vpton, 6 M. & "W. 536. (c) Per Alderson, B., Bigg -v. Lonsdale (Earl), 25 L. J. Ex. at p. 86. {d) Ely (Dean) v. Warren, 2 Atk. 189. (e) Valentine v. Penny, Noy's R. 145. (/) Wilson V. Willes, 7 East, 121, PROFITS A PRENDRE. 115 is appendant (g). Such right may be claimed by grant or pre- Chap. V. scription, and in the case of copyholders, by custom {h). The extent of this right and the time of the year for the exercise of it, are in a great measure defined and controlled by manorial custom and local usage. A prescriptive right to cut underwood in respect of a particular Riglits of house is not established by proof of user, where the only evidence parish in is that the right was exercised in respect of the inhabitants estovers. generally (i). A right in the inhabitants of a parish at certain periods of the year to lop for fuel the branches of the trees growing upon the waste lands of the manor, cannot be created by custom or prescription, or otherwise than by crown grant or act of parliament. A grant by the crown of a i^^ofit a prendre out of crown lands constitutes the inhabitants a corporation quoad the grant, and only as a corporation can the inhabitants maintain such a right (k). The lord of the manor is not, of common right and in virtue of his ownership of the soil, entitled to approve against common of turbary and estovers (l). Connected with rights of common are other rights of profit a prendre, such as the right to cut rushes (m), fern (n), to dig for gravel (o), and the right of pannage, or feeding swine on fallen acorns (p), which may be claimed alieno solo. Eights of fishery may be divided into : — 1. Free or several Rights of fishery. 2. Gommon of fishery. A free or several fishery, is an ^ '^''^; exclusive right to fish in a given place with or without a property in the soil {q). The right to a several fisherj^, prima facie imports ownership of the soil (r) ; but in the case of a crown grant this has been held otherwise (s). (g) A right to cut down trees for sale (o) Hall v. Byron, i Cli. D. 667 ; 46 cannot be claimed as a, common appen- L. J. Ch. 297. dant ; Bailey v. Stephens, 31 L. J. C. F. (p) GUlton v. Corp. of London, supra. 226 ; 12 C. B. N. S. 113 ; as to extent For the right to take minerals, see ante, of right, see PCT)iJrofe's(i'aW) Case, Clayt. p. 70. 47; LuttrelVs Case, 4 C. & K. 87a. (?) MaUolmson v. ODea, 10 H. L. (h) Rivers (Lord) v. Adams, 3 Ex. D. Cas. p. 619. ; Holford v. Bailey, 13 Q. 361 ; 48 L. J. Ex. 47. B. 426 ; 18 L. J. Q. B. 109. According (i) Chilton V; Oorji. of London, 7 Ch. to Blackstone the terms free, several and D. 735 ; 47 L. J. Ch. 433. common of fishery are very much con- (k) WilUngale v. Maitland, L. R. 3 founded in our law books : 1 Bl. Com. Eq. 303 ; 36 L. J. Ch. 64. 671n. „ , „ . (l) Lascelles v. Onslow (Earl), 2 Q. B. (r) Smnerset [DioTce) v. FogweU, 5 B. & D 433 • 46 L J Q. B. 333. A. 875 ; Marshally. UlUswater Nav. Co., ■(m) Bean v. Bloom, 2 "W. Bl. 926. 3 B. & S. 732 ; 32 L. J. Q. B. 139. (n) Be la Warr (Earl) v. Miles, 17 Ch. (s) Johnston v. Bloomfield, 8 Ir. Rep. D.535. C. L. 68(Ex. Ch.). I 2 Several fishery. 116 A TREATISE ON TOETS, Chap. V. Where river channel changes. A several fishery not within Fre- scription Act. Common of fishery. Public right of fishing in navi- gable waters. The soil of a navigable tidal river, so far as the tide flows and reflows, is 'prima facie in the crown, and the right of fishery therein is frivid facie in the public (i) ; but the right to exclude the public therefrom, and to create a several fishery, existed in the crown, and might lawfully have been exercised by the crown before Magna Charta (m), and the several fishery could, lawfully, be afterwards made the subject of grant by the crown to a private individual (a;). A several fishery in a tidal river granted by the crown before Magna Charta, does not, if it reverts to the crown, merge in the prerogative to the crown, but may be re-granted bj' the crown to a subject {y). Where the channel of the river, in which a person has a right of several fishery, permanently charges so that the soil and land on both sides of the new channel belong to another subject, the right is not transferred from the old to the new channel {z) ; but where the change of the river course is so gradual that it is not possible to identify a portion of the land over which the river flows, the right may be exercised over the new channel (a). The Prescription Act, 2 & 3 Will. 4, c. 71, s. 2, does not apply to profits a prendre in gross, and therefore does not apply to a claim to a several fishery in the waters of another (b). A common of fishery is a right (but not exclusive) to fish in the water of another (c). In navigable tidal rivers the fishing belongs to the public, in private rivers not navigable, it belongs to the riparian owners on either side (d). There can be no public right of fishing in non- tidal waters, even where they are to some extent "navigable rivers " (e). A river can only be considered " tidal," within the meaning of the rule of law which gives the public a right to fish in " navigable tidal waters," where the tide actually ebbs and flows (/). (0 Lord Fiizwalter's Case, 3 Keb. 2i2 ; 1 Mod. 106. (m) Such grants were prohibited by Magna Charta, 1215. {x) Makolmson t. O'Dea, 10 H. L. Cas. 593. (y) Northumberland (DuJce) v. Hough- ton, L. R. 5 Ex. 127 ; 39 L. J. Ex. 66. As to grants of oyster fisheries, see Mills V. Colchester (Mayor), L. R. 2 C. P. 476 ; Goodman v. Saltash {Mayor), 7 App. Cas. 633 ; 52 L. J. Q. B. 608. (z) Carlisle {Mayor) v. Oraham, L. R, 4 Ex. 361 ; 38 L. J. Ex. 226. (a) Foster v. Wright, 4 C. P. D. 438 ; 49 L. J. C. P. 97. (b) SMittleworth v. Le Fleming, 84 L. J. C. P. 309. (c) See Smith v. Kemp, 2 Salk. 637 ; Co. Litt. 222a. {d) Carter v. Thurcot, 4 Burr. 2163; Murphy v. Ryan, 2 Ir. R. C. L. 143. (e) Peace v. Scotcher, 9 Q. B. D. 162. (/) Eeece v. Miller, 8 Q. B. D. 626 ; 51 h. J. M. C. 64, PROFITS A PREKDKE. 117 Where a river has been made navigable by act of parlia- Chap. V. ment, which expressly reserved the rights of property in the riparian owners, there can be no right of fishing in the public at large (g). Though weirs in navigable rivers are illegal by 12 Edw. 4, c. 7, Fishing wein. unless they existed before the time of Edw. 1, a right to erect them may be acquired in private waters by grant or prescrip- tion (Ji). " The right of sporting on any land where there is no grant of Sporting free warren is a right primarily incident to the ownership and "° possession of the soil " (i). It is an interest in the realty, and a grant of it is a license of a profit a prendre {k), which must be conveyed by deed il). The grant of a right of shooting and sporting over land is not Game. limited to game strictly so called, but extends to such animals as are in common parlance understood to be the subjects of sport (»(). Game started and killed wrongfully by one person on the land of another becomes the absolute property of the owner of the land, and not of the captor, though it is killed and carried away in one continuous act {m). An action lies against the owner of a dog, who, knowing the Trespass by animal to have a propensity for chasing and destroying game, of'^ame'."''"' permits it to be at large, and the dog in consequence enters the injuries to preserves of another and chases and destroys his pheasants {n). s^™°- An action wiU lie against a person for wilfully disturbing a decoj^ so that the wild fowl resorting thereto are driven away (o) ; so also against one for exploding combustibles, so as to become a nuisance, for the purpose of frightening away game from his neighbour's land {p). A landowner who has demised for a term of years the right of shooting over his estate, is not thereby prevented from cutting [g) Eargreaves v. Diddams, L. R. 10 264 ; 34 L. J. 0. P. 261. Q. B. 682 ; 44 L. J. M. C. 178 ; Hudson (m) Blades v. Higgs, 11 H. L. Cas, r. Maetae, 4 B. & S. 585 ; 33 L. J. M. 621 ; 34 L. J. C. P. 286 ; Ohurchward v. C. 65. Stiiddy, 14 East, 249 ; Sutton v. Moody, {h) Mile V. miyle, L. R. 3 Q. B. 286. 1 Ld. Raym. 250 ; Lonsdale {Earl) v. (i) Per Coleridge, J., Lonsdale {Earl) Fdgg, supra. V. Eigg, 26 L. J. Ex. 197. (n) Read v. Edwards, 17 C. B. N. S. (/fc) Ewart V. Graham, 7 H. L. Cas. 245 ; 34 L. J. C. P. 31. 331 ; 29 L. J. Ex. 88 ; Barker v. Davis, (o) Carrington v. Taylor, 11 East, 571 ; 34 L. J. M. C. 140 ; Kenyon v. ffart, 34 Keeble v. Hiekeringill, 11 East, 574, ii. L. J. M. C. 87. {p) Lbhotson v. Peake, 3 H. & C. 644 ; '{I) Jeffryes v. Evans, 19 C. B. N. S. 34 L. J. Ex. 118. 1.18 A TREATISE ON TORTS. Chap. V. down timber in the ordinary management of his land, though it may be injurious to the shooting (q). Free warren. 2<'re<3 Warren is defined in the old books to be a franchise or place privileged by prescription or grant from the crown for the keeping of beasts and fowls of the tcarren, which are hares, conies, partridges and pheasants (r). A grant of "warren" may pass the soil, or it ma:y pass nothing but the franchise to be exercised over the soil. The term " warren of conies " will only pass the franchise (s). (y) Geanisv. Baker, L. R, 10 Ch. 355. (s) Beauchamp {Earl) v. Winn, L. R. (r) Termes de Ley, 589 ; Co. Inst. 1, 6 H. L. 223. 233. CHAPTER VI. TORTS AFFECTING PERSONALTY. TRESPASS AND CONVEESION OP CHATTELS. Chap. VI. A trespass upon a chattel consists in the taking, removing, or Definition of inflicting anj^ injury upon it, however slight (a), without the con- ehXl °" sent of the owner and without lawful excuse (b). A conversion is a wrongful interference with a chattel, as by Conversion. taking, using, or destroying it, inconsistent with the owner's right of possession (c). In trespass a partj'^ is liable if he takes the chattel only for an Distinction instant, but in trover he is not liable unless he also proceeds to a trespass and conversion (d). trover. The plaintiff to maintain trespass must, at the time when it Possession occurred, have had the present possession of the goods (e), either maTntlTn tre-- actual or constructive (/), or a legal right to the immediate pass. possession, which is said in the case of personal property to draw to it the possession (g). A special right to the present possession, as that of a hirer of the chattel, or a carrier or a bailee who has had actual possession, is sufficient to support an action for trespass (h). In order to maintain an action for trespass the possession must incomplete be complete. Thus the plaintiff and the defendant were owners fufficielt? "°' (a) "Scratching the panel of a carriage (d) Fries v. RMyar, i Bing. 597, 604. would be a trespass," ^er Alderson, B., (c) Ward v. Macaulay, i T. R. 489 ; Fouldes V. Willoughhj, 8 M. & W. 549. Yomuj v. Sidiciis, 6 Q. B. 606. (J) Breioer v. Deiv, 11 M. & W. 625 ; (/) Smith v. ifillcs, 1 T. R. 475. Holding v. PigoU, 7 Bing. 465 ; Bignell (g) Balm! v. Hutton, 9 Bing. 471 ; 2 V. Clarke, 5 H. & N. 485 ; 29 L. J. Ex. Wins. Saund. 476. 257 ; Kirk v. Cfregory, 1 Ex. D. 55. (fi) Colwill v. Recrcs, 2 Camp. 575 ; (c) Hollins V. FowUr, L. E. 7 H. L. Thomas v. Phillips, 7 C. & P. 573 ; 757, affiming L. fi. 7 Q. B. 616 ; Fotddes Moore v. RoUnson, 2 B. & Ad. 817. The V. Willoiighby, supra; Thorogood v. owner of a chattel, c. jr. a barge which is Robinson, 6 Q. B. 769 ; Jones v. Brown, out on hire, can maintain an action 25 L. J. Ex. 345 ; Burroughes v. Bayne, against a third person for a permanent 29 L. J. Ex. 185. The form of action for injury thereto, Mears v. L. ct S. W. Rail. conversion of chattels was called trover, Co., 31 L. J. C. P. 220; 11 C..B. N. S. see C. L. P. Act, 1852, Sched. B, 28. 850. 120 A TREATISE OK TORTS. Chap. VI. of boats employed in a fishery. The plaintiff's boat cast a fishing seine round a shoal of mackerel, with the exception of a small opening, which the seine did not quite fill up, but through which, in the opinion of witnesses, the fish could not escape. The defendant's boat then came through the opening, and took the mackerel : it was held that the plaintifi' could not maintain tres- pass for taking the fish, his possession of them not haying been complete («"). So where an auctioneer was put into possession of fixtures attached to a freehold for the purpose of selling them, the purchaser being bound to detach and remove them, it was held that he had not such a possession as would support an action for trespass for their wrongful removal (/c). Bare posses- sion constitutes a sufficient title to enable the party enjoying it, to maintain trespass against a mere wrongdoer (Z). Possession by Title to property created merely by the act of reducing a thing trespasser. ^^^^^ possession necessarily implies a reduction into possession effected by an act which is not in any way of a wrongful nature. Such an act, therefore, effected by one who is at the moment a trespasser, cannot create a title to propertj' {m). Jus tertU no In an action for seizing goods in the possession and apparent ownership of the plaintiff, the defendant cannot set up the title of a third person to defeat the action (n), as the fact of possession is primd facie evidence of the right to possession, and therefore sufficient to maintain an action against a wrong-doer who cannot show a better right or authority under a better title (o). Where re- If a man's goods and chattels obstruct me in the exercise of movai iustifi- ^^^ right of way, I have a right to remove them. If he places a horse and cart in the way of the access to my house, or before my door, so that I cannot drive up to it,. I have a right to lay hold of the horse and lead him away, and if necessary, to ivhip him to make him move on (p). So, if a person's goods are placed on my ground, I may lawfully remove them {q), and if his cattle come upon mj' land, I may chase and drive them out (r). (i) Young v. HicUns, 6 Q. B. 606. (n) Nelson v. Cherrill, 7 Bing. 663. (k) Davis T. Danhs, 3 Ex. 435 ; 18 L. (o) Elliott v. Kemp, 7 M. & W. 312. J. Ex. 213 ; see Richards v. Symons, 8 (p) Slater v. Swann, 2 Str. 872. Q. B. 90 ; 15 L. J. Q. B. 35. (q) Cole v. Maundy, EoU. Abr. Tres- {I) Blades V. Higgs, 11 H. L. Cas. 621. pass 1, pi. 17 ; Eea v. Slwward, 2 M. & (m) Armory y. Delamirie, 1 Sm. L. C. ; W. 426. Burton v. Hughes, 2 Bing. 173 ; Every v. (r) Mitten v. Faudrye, Poph. 161, SmUh, 26 L. J. Ex. 344 ; Jeffries v. G. cited 4 Burr. 2094. W. Rail. Co., 5 E. & B. 802. answer to tres- pass. TRESPASS AND CONVERSION OF CHATTELS. 121 If one finds the goods of another lying about, and locks them Chap, VI. up, with the hondfide purpose of placing them in safetj', he is justi- j, ^^^.^^ fied in so doing, there must however be reasonable grounds for chattels. taking this precaution, as if there are not, and the goods be after- wards stolen, the one who removed and locked them up will be liable for a trespass (s). Where the defendant claiming rent in arrear from the plaintiff', his lodger, locked the door of the room in which the plaintiff's goods were deposited, and refused to allow the plaintiff to enter and remove them, saying that he should not have them until he had paid his rent, it was held that the acts of the defendant did not amount to a taking and that trespass was not maintainable (t). If a chattel has been lost by one man and found by another, it Lost chattels. has been held that the finder has an implied licence or authority from the owner to take the chattel and keep it for his own use (u). This use must however be very limited, and is in general confined to keeping the chattel in a place of security', as if he abuses it or wastes it, he may render himself a trespasser ah initio (x). Where Estray. the chattel lost is an estray such as a horse or a cow, the finder would be justified in moderately exercising the former and milk- ing the latter, for the purpose of keeping them in health. A mere threat to do something illegal, as a threat by a landlord Threatened sfiizurs of to seize fixtures, as a distress for rent, is no ground for an chattels. action of trespass {y). Whether a seizure of particular goods under a.fi.fa. was directed Liability of by the execution creditor, so as to make him liable for the act of trespass by""^ sheriff, is a question of fact. It is not within the scope of the ^sent. implied authority of the solicitor of a judgment creditor issuing a /?. fa. to direct the sheriff to seize particular goods {z). A principal is not liable for the wrongful acts of his agent, though he receives benefit from them, unless at the time of the receipt, he has notice of the illegality. Thus, where a broker under a warrant from the landlord, authorising him to distrain the goods and chattels of the tenant, seized a fixture, which was afterwards sold, and the proceeds paid to the landlord, it was held (s) Kirk V. Gregory, 1 Ex. D. 55 ; 45 {x) Attack v. Bramwell, 32 L. J. Q. B. L. J, Ex. 186 ; see 1 "Williams on Exe- 146. cutors, 7tli ed., p. 261. {y) Beck v. DenUgh, 29 L. J. C. V. (t) Hartley v. Moxham, 3 Q. B. 701 ; 273 ; see England v. Cowley, supra. ] 2 L, J. Q. B. 41 ; see England v. Coio- (s) Smith v. Keal, 9 Q. B. D. 340 ley, L. E. 8 Ex. 126. (C. A.) ; Jarmain v. Hooper, 6 M. & G. (m) Imek V. Glarke, 1 Roll. Abr. 130. 827 ; 13 L. J. C. P. 63, distinguished. 122 A TREATISE ON TOKTS. Chap. VI. Corporation liable in tres- pass on goods. Conversion of goods. What amounts to. Demand and refusal. that the receipt of the proceeds did not make the landlord a trespasser, it not being sho^n that he was aware of the illegal seizure (a). Where, however, a solicitor, who had given the sheriff afi.fa. against A., sent a man to point out goods, and the man pointed out goods belonging to B. which the sheriff seized, it was held that the solicitor by his conduct had made himself personally liable in trespass to B. (&). An action for trespass will lie against a corporation for seizing goods and chattels (c). In order to maintain an action for a conversion, the plaintiff must have a right to the present possession of the goods {d) ; and a mere possession is sufficient to support an action against a wrong-doer (e). To constitute a conversion of goods, there must be some re- pudiation, by the person interfering with them of the owner's right, or some exercise of dominion over them inconsistent with such right (/). A mere wrongful removal of a chattel does not amount to a conversion, unless the taking or detention of the chattel is with intent to convert it to the taker's own use, or that of some other person {g), or unless the act done has the effect of destroy- ing or changing the quality of the chattel Qi). A mere refusal by the defendant to deliver to the plaintiff a chattel of his which is on the defendant's premises is not evidence of a conversion, but a denial by the defendant of the plaintiff's right to it, or a refusal by which the defendant exercises dominion over the chattel, is evidence (i). The demand and refusal do not in themselves con- stitute a conversion, but they are evidence of a conversion, at some previous period (k). Except where property has been wrong- fully and fraudulently taken, a demand and refusal are necessary to enable the plaintiff to maintain an action for its conversion {I). The demand may be made either verbally or in writing («i) and by the owner of the chattel or his authorised agent, but both the (a) Freeman v. Boslier, 13 Q. B. 780 ; 18 L. J. Q. B. 340. (b) Power v. Fleming, 4 Ir. Eep. C. L. 404. (c) Maund v. Monmouflishire Canal Co., 4 M. & G. 452. (d) Bradley v. Copley, 1 C. B. 685 ; 14 1 TCP 222 (e) Jeffries'^. G. W. Rail. Co., 5 E. & B. 802 ; 25 L. J. Q. B. 107. (/) Heald v. Carey, 11 C. B. 977 ; 21 L. J. C. P. 97. (g) SicpJiens v. Elwall, 4 M. & S. 259 ; Caiwt V. Hughes, 2 Bing. N. C. 448. (A) Fouldes v. TVillougUy, 8 M. & "W. 549 ; Thorogood v. Robinson, 6 Q. B. 769 ; 14 L. J. Q. B. 87. (i) Wilde V. Waters, 16 C. B. 637 ; 24 L. J. C. P. 192. (k) Wilton V. Girdlestone, 5 B. & Aid. 847. (/) Needlmm v. Raxobmxxi, 6 Q. B. 771,n.; Severin v. Keppell, 4 Esp. 156. (m) Smith v. Young, 1 Camp. 439, TRESPASS AND CONVERSION OF CHATTELS. 123 demand and the refusal must be absolute and unqualified to afi'ord Chap. VI. evidence of a conversion (?!.) . Thus the owner of a gun delivered it to A. to be sold for him, and A. delivered it to B. on trial, who kept it for some time, during which the gun was burst ; the owner afterwards demanded the gun in the following terms, " I give j^ou notice that the gun is my property, and I demand the same of you, and require you to deliver it up in the same plight, in which it was when delivered to you,^' it was held that such demand and refusal were not evidence of a conversion (o). So where the defendant had in his possession a boiler belonging to the plaintiff, who demanded it, and the defendant at first refused to restore it, but afterwards, before the issue of the writ, tendered it, there was held to be no evidence of a conversion (p). Where a chattel is demanded by the owner from a person who is in possession of it, he has no right to impose any conditions, such as the giving of a receipt, before complying with the request. Thus, where a firm of solicitors had some deeds in their possession belonging to a testator and refused to give them up to the executors without receiving their receipt, it was held that such conduct amounted to a conversion of the deeds, and that an action of trover would he against the solicitors at the suit of the executors (q). Where the chattel, at the time of the demand, is in the actual or constructive custody of law, no action for a conversion will lie (r). A person who has a lien upon a chattel may refuse to deliver it Lien. up until his lien is satisfied, but a refusal grounded on a claim of right to deliver up the chattel on demand, is evidence of a con- version, though the defendant may have a lien upon it (s). Where a person has expended his labour and skill on goods delivered to him for that purpose, he has a lien at common law for his chai-ge for the work ; thus the farrier by whose skill a horse is cured of a disease, and the horsebreaker by whose skill he is rendered manageable, have liens on them in respect of their charges (t). So a coachmaker has a Hen upon a carriage on which he has executed repairs (it,), a fuUer, upon clotli he has fulled (x), and a (re) Philpot V. KelUy, 3 A. & E. 106. R. 3 C. P. 38 ; 37 L. J. C. P. 33 ; PiUott (o) Rmhworlh v, Taylor, 3 Q. B. 699; v. Wilkiiison, 34 L. J. Ex. 22. 12 L. J. Q. B. 80. (s) C'aunce v. Spanton, 7 M. & G. 903 ; Op) Eayward v. S&moard, 1 M. & S. \i L. J. C. P. 23. 469. (0 Scarfc v. Morgan, 4 M. & W. 270. (ff) CdbUU V. Glutton, 2 C. & P. 471. (u) Pinnock r. Harrison, 3 M. & W. (r) Verrall v. Bobinson, 2 C. M. & E. 523. 495 ; see Johnson v. Eoyal Mail Co., L. (x) Coomhs v. Noad, 10 M. & W, 127. conversion. 124 A TKEATISE ON TORTS. Chap, VI. warehouseman, on goods he has warehoused {y). By express agreement, or by usage of particular trades or professions, a lien may be created for the general balance of account between the parties ; thus a banker has a general lien upon the securities of his customer {z) ; a solicitor, on the deeds and papers of his clients which have come into his hands in the course of his employment (a) : a factor has a general lien upon all goods con- signed to him as factor (6) ; and carriers by land, and shipowners have a lien for carriage and freight (c). A livery stable-keeper has no lien for the keep of a horse, because it is said the owner impliedly, if not expressly, stipulates for the possession when required (d), neither has an agister of cattle (e). An innkeeper in respect of his charges has a lien which extends to all goods which a guest brings with him, and which are received at the inn (/). Unintentional If a person detains goods under any claim of interest in himself, so as to deprive the person entitled to the possession of them of his dominion over them, it amounts to a conversion (17), and it is equally so where a man, without any intention to appropriate to his own use, does an unauthorized act which deprives another of his property permanently or for an indefinite time (/i). Thus the plaintiffs sent defendant an invoice for barley, which stated that the barley was bought by the defendant of the j)laintiffs through G. as broker, and also a delivery order, which made the barley deliverable to the order of the consignor or consignee. The defendant had not, in fact, ordered any barley of the plaintiffs. G. called on the defendant, who showed him the documents, and told him it was a mistake. G. said that it was so, and asked the defendant to indorse the order to him, for the purpose, as he said, of saving the expense of obtaining a fresh delivery order. The defendant indorsed the order to G., who possessed himself of the barley and disposed of it, and then absconded. It was held, in an action for the conversion of the («) Leuckhart v. Cooper, 3 Bing. N. C. (/■) Threfallv. Borwiok, L. B. 7 Q. B. 99. 711 ; Sunbolfv. Alford, 3 M. & W..248. (») O'Connor v. Marjoribanks, i M. & See Calye's Case, 8 Co. Kep. 32a; Mutliner G. 435 'i Barnett v. Bravdas, 6 M. & G. v. Florence, 3 Q. B. D. 484. As to inn- 630. keeper's power of sale, see 41 & 42 Viet. {a) LigUfoot v. Kmne, 1 M. & "W. 745. c. 30. (6) Kireliner v. Venm, 12 Moore, P. C. {g) Burroughcs v. Baym, 5 H. & N. 361. 296 ; 29 L. J, Ex. 188. (c) Dixon V. Stansfeld, 10 0. B. 398. (h) Hiort v. Bott, L. R. 9 Ex. 86 ; 43 id) Judsony. Etlieridge, 1 C. & M. 743. L. J. Ex. 81 ; see Hollins v. Fowler, (e) Jackson v. Cummins, 5 M. & AV. L. E. 7 H. L. 757 ; 44 L. J. Q. B. 169, 342. TRESPASS AND CONVEBSION OF CHATTELS. 125 barley, that the defendant, having indorsed the order without any Chap. VI. occasion to do so, and without authority, was liable for the conversion (/). Where goods are delivered for an illegal purpose, the person delivering the goods may repudiate the illegal purpose at any time before it has been carried out, and recover back his goods (k). Any one who takes the property of another without his Process of law, consent, by abuse of the process of law, is guilty of a conver- version,' sion (I), and those who aid and assist him in executing such process may also be held responsible (m). A sheriff who sells more goods than are sufficient to satisfy an Sheriff. execution, is liable for a conversion in respect of the excess (n). Where a landlord distrains and carries away goods, and after Landlord. selling enough to satisfy the rent in arrear, brings back the remainder to the premises demised, he is not guilty of a conver- sion of any part of the property, as he is only acting within his legal rights (o). A servant who is entrusted with goods by his master is Servant. justified in refusing to give them up to a claimant until he has received instructions from his master. Thus where goods, which had been saved from fire, were carried into a warehouse by the servants of an insurance company, of which the defendant, as one of such servants, kept the key, and on his being applied to by the owner to deliver them up to him, refused to do so without an order from the companj', it was held that he was justified in so acting, and that such refusal did not amount to a conversion Q5) ; if, however, after having received instructions from his master, he on demand, absolutely declines to give them up to the person entitled to the possession of them, he is guilty of a con- version (q). If a principal ratifies the unauthorised purchase by his agent of a chattel which the vendor had no right to sell, he is guilty of a conversion, although he had no knowledge of the circumstances which made the sale unlawful (r). U) Hiort V. Bott, supra. (0) E-cans v. \X rigid, 2 H. & N. 527; [Ic) Taylor v. Bowers, 1 Q. B. D. 291 ; 27 L. J. Ex. 50. 45 L. J. Q. B. 163. (p) Alexander v. SoutTiey, 5 B. k A. (l) Grainqer v. Bill, 4 Bing. N. C. 247. 221, ■ (?) Lee v. Baynes, 18 C. B. 607. (m) BillUer v. Young, 6 E. & B. 1. [r) Lethhridge v. Phillips, 2 Stark. (re) Aldredv. Constable, 6 Q, B. 381, 544, 126 A TREATISE ON TORTS. Chap. VI. Bailee. 'Bailee for hire. A man cannot be made a bailee against his will, and, therefore, if goods are left upon his premises, without any consent on his part to take charge, of them, he is not a bailee (s), and if in answer to a demand for the goods, he replies, "that he has nothing whatever to do with them," such answer is no evidence of a conversion (t). Where the owner of goods delivered them to a bailee to be kept for him, and the bailor by bill of sale, subsequently to the bailment, transferred all his interest to a third party, who demanded the goods of the bailee, it was held that a refusal to give up the goods until he had received direction from the bailor, was no evidence of conversion (m). When a chattel is deposited with a bailee by two, it is not in the power of one of the depositors to take the chattel out of the bailee's hands without the consent of the other (x). When the bailee has a bond fide doubt as to who is the true owner of the goods, he must be allowed a reasonable time for clearing up that doubt, before he can be rendered liable for a conversion {y). Where in the case of adverse claimants to chattels, an action is brought against a bailee, he can, under 1 & 2 Will. 4, c. 58, s. 1, protect himself by alleging that he has no interest in the chattels in question, and compelling the adverse claimants to interplead. If he does not adopt this course, but holds the goods for his bailor, he must stand or fall by the bailor's title {z). Where the bailor has no title at the time of the bailment, the bailee can have none ; for the bailor can convey no better title than he has himself (a). A bailee of goods for hire, by selling them determines the bail- ment, and is guilty of a conversion, as also is the purchaser after demand and refusal, unless the goods were bought in " market overt " {b). Thus where the hirer of a piano sent it to an auc- tioneer to be sold, it was held that the auctioneer, who refused to deliver it up unless the expenses incun-ed were first paid, was liable for a conversion (c). (s) mibcrry v. Eattoii, 33 L. J. Ex. 190. (s) [t) Hawlces v. Dunn, 1 Cr. & J. 627. (m) Lee V. Bavnes, supra ; Sheridan v. (a) New quay Co., i C. B. N". S. 618 ; 28 594 ; L J C. P. 58 ; European Mail Co. v. Bond, Royal Mail Co., 30 L. J. C. P. 2i7. 137. Ix) Harper v. Godsell, L. R. 5 Q. B. (5) 422 ; May v. Harvey, 13 East, 197. 14 L. (y) Vauglian v. Watt, 6 M. & W. 492 ; 2 Ex. Fillot V. WilHyison, 3 H. & C. 345 ; 34 (c) L. J. Ex. 22. 311. Per Ld. Tenterdeu, Wilson v. 1 B. & Ad. 456. Batut V. Hartley, L. R. 7 Q. B. 41 L. J. Q. B. 273 ; Biddlc v. 6 B. & S. 225; 34 L. J. Q. B. Cooper V. Wilomatt, 1 C. B. 672 ; J. C. P. 219 ; Bryant v. Wardell, 479. Zocschman v. Machin, 2 Stark. TRESPASS AND CONVERSION OF CHATTELS. 137 At common law it was held that an agent authorized to sell Chap. VI. goods could not, although the apparent owner thereof hy I ; . . „ , . . . , , , , , Factors Acts. permission oi his principal, pledge the same hy delivering to a pawnee, either the goods themselves, or any document of title relating thereto. This state of the law in modern times, working great hardship and impeding mercantile transactions, several statutes (d) were enacted having reference to the subject (e). The eifect of 5 & 6 Vict. c. 39, which recites 6 Geo. 4, c. 94, s. 4, 5 & 6 Vict. is that an agent who is intrusted with the possession either of "' goods or the documents of title to goods, may now deposit the same by way of pledge, lien or security, for advances made to himself; even although at the time of making the advances the pawnee knew that the pawner was only an agent. But the pawnee is not entitled to the benefit of this enactment, if the deposit was made on account of an antecedent debt ; or if the advance was not made bond fide on the part of the pawnee ; or if he had notice that the agent had no authoritj^ to pledge, or that, in so doing, he was acting mala fide with reference to his principal (/). Any bill of lading, India warrant, dock warrant, warehouse Documents of keeper's certificate, warrant or order for the delivery of goods, or any other document used in the ordinaiy course of business as proof of the possession of or control of the goods, or purporting to authorize, either by endorsement or delivery, the possessor of such document to transfer or receive goods thereby represented, is a document of title {g). The statute is meant to apply to those cases where one person Application of has given an apparent authority to another, and a third person has dealt with that other in the belief that the authority really existed Qi). A merchant who has enabled his factor to raise money fraudu- lently can claim no redress against the party who has hon&fide made the advance (i). The statute only applies to commercial agents, and therefore a To whom applies. (d) The Factors Acts, 4 Geo. 4, c. 83, (9th ed.) amended by 6 Geo. 4, c. 94 ; 5 & 6 Vict. (/) 5 & 6 Vict. o. 39, s. 3. u. 39 ; 40 "& 41 Vict. c. 39. This last {g) 5 & 6 Vict. c. 39, s. 4. mentioned Act applies only to acts done Qi) Cole v. N. Western Bank, L. E. and rights acquired after August 10, 10 C. P. 354. 1877. (i) Vickers v. Hatz, L. R. 2 H. L. fcV Chitty on Contracts, p. 202, (7th (Sc.) 113; seeJohmony. Credit LyonaU ed.), see Smith's Mercantile Law, p. 129, Co., 3 C, P. D. (C. A.) 33, 1^8 A TREATISE ON TORTS. Chap. VI. clerk who had authority to sign delivery orders does not come within the scope of the Act as " an agent intrusted with the possession of documents " (/r). Gcocls ijledgea. Where property is pledged, with a power of sale, if it is not redeemed by a certain day, the pawnee is guilty of conversion if he sells before the arrival of the specified date (?). If there is no specified date, it is otherwise. Thus scrip certificates were pledged to secure an advance, for the repaj'ment of which no specified date was fixed. The pledgor became bankrupt, and the pledgee sold a portion of the certificates to satisfj^ his debt, without making demand for payment or giving any notice of his intention of selling. The assignee in bankruptcy' of the pledgor's estate, without making any tender of the amount of the debt, brought an action for the conversion of the certificates against the pledgee. It was held that the action was not maintainable {in). Special bail- An action for a conversion cannot in general be maintained against a bailee entrusted with the goods for a special purpose for a mere omission or negligence in the course of his employ- ment. Thus the loss of goods by a carrier is not a conversion {n), though he may be made liable in an action for negligence. If, however, the carrier deals with the goods in a manner incon- sistent with the purpose for which they were entrusted to him, as by delivery to the wrong person, he may be liable for a conversion (o). Vendor and The purchaser of goods which remain in the possession of the purchaser. vendor. Subject to the vendor's lien for unpaid purchase-iaoney, cannot maintain an action for a conversion against a wrong-doer (p). For though the purchaser acquires the right of property by the purchase, he can only acquire the right of possession by payment or tender of the price ; and in order to maintain an action for the conversion, he must have both the right of property and the right of possession (q). {k) Lamb y. Attciihoroii^h, 1 B. & S. CuUey, 15 C. B. N. S. 701 ; 33 L. J. C. 831 ; 31 L. J. Q. B. 41. As to what P. 134. constitutes an agent intrusted with the {m) Halliday v. Holgatc, L. R. 3 Ex. possession, see Cole v. N. Western Bank, 299 ; 37 L. J. Ex. 174. siqrra; Mildred y. Maspons, 8 App. Cas. («) 2 Wms. Saund. 47 1 ; Boss v. Jolm- 874 ; 53 L. J. Q. B. 33 ; Heijman v. son, 5 Bur. 2825 ; Williams v. Gesse, 3 Fletcher, 13 0. B. N. S. 519; 32 L. J. C Bing. N. 0. 849. P. 132. As to revocation of agents' (o) Devereux v. Barclay, 2 B. & Aid. authority and effect of possession of 702 ; Wyldy. Pickford, 8 M. & W. 443. documents on sales and pledges, see 40 [p) Lord v. Price, L. K. 9 Ex. 54 & 41 Vict. c. 39, ss. 2-4. 43 L. J. Ex. 49. (Z) Johnson v. Stear, 15 C. B. N. S. (q) Bloxam v. Saunders, 4 B. & C. 330; 33 L. J. C. P. 130; Pigot v. 941. TRESPASS AND CONVERSION OF CHATTELS. 129 The principle established, as regards the vesting of the pro- Chap. VI. perty in goods which have been sold to, but have not actually been received by the purchaser, is thus laid down by a learned author in his treatise on the sale of Personal Property (r). "First, where goods are delivered by the vendor, in pursuance of an order, to a common carrier for delivery to the buyer, the delivery to the carrier passes the property', he being the agent of the vendee to receive it, and the delivery to him being equivalent to a delivery to the vendee ; secondly, Avhere goods are delivered on board a vessel to be carried, and a bill of lading is taken, the delivery by the vendor is not a delivery to the buyer, but to the captain as bailee, for delivery to the person indicated by the bill of lading, as the one for whom they are to be carried." Where a vendor who has sold goods on credit, re-sells them before the day for payment has arrived, he is liable for a conver- sion (s). And it has been held, that although the day of payment has passed, unless it was expressly stipulated at the time of the sale, that time should be the essence of the contract, the vendee on tender and refusal of the price, may maintain an action for trover against the vendor (i). Before selling a chattel purchased on credit, the vendor should give notice to the purchaser of his intention to sell in default of payment, otherwise he may be liable for a conversion (u). The obtaining goods upon false pretences under colour of pur- chasing them, does not change the property (x), and the vendor may treat the purchase as a nullity, and proceed against the fraudulent purchaser for a wrongful conversion (y). If a tradesman sells goods to be paid for on delivery, and his servant by mistake delivers them without receiving the money, he may after demand and refusal to deliver or pay, bring an action for the conversion of his goods against the purchaser (z). An action for a conversion cannot be maintained against the vendor by the purchaser of goods, which form part of a larger quantity belonging to the vendor, unless there has been a sepa- (r) Benjamin's Treatise on the Law of (t) Martindah v. Smith, 1 Q. B. 389. the Sale of Personal Property, book ii. ' («) Page v. Cowasjee Eduljee, L. K 1 c. 6, p. 288 ; see Shepherd v. Harrison, P. C, 127. L. E. 5 H. L. 116 ; Moakes v. Nicolson, (x) Noble v. Adams, 7 Taunt. 59. 19 C. B. N. S. 290 ; 34 L. J. C. P. (y) Ferguson v. Carrington, 9 B. & C. 273 ; Wait v. Baker, 2 Ex. 1. 59. (s) Ckinnery v. Viall, 5 H. & N. 298 ; {z) mslwp v. SUllito, 2 B. & Aid. 29 L. J. Ex. 180. 329n. 130 A TREATISE ON TORTS. Chap. VJ. Joint owners of chattels. Rights of pur- chaser where i origi- nally lost, stolen, or fraudulently obtiined. Market overt. ration of the specific part sold from the rest (a). "Where several joint owners of chattels permit one of their number alone to have the possession, and he sells to a bond fide purchaser, the latter acquires a good title as against all {b). The purchaser of a chattel takes the chattel as a general rule subject to what may turn out to be certain infirmities of title. If he has purchased the chattel in market overt, he obtains a title which is good against all the world, but if he does not purchase the chattel in market overt, and if it turns out that the chattel has been found by the person who professed to sell it, the pur- chaser will not obtain a good title against the real owner. If it turns out that the chattel has been stolen by the person who has professed to sell it, the purchaser will not obtain a title. If it appear that the chattel has come into the hands of the person who professed to sell it by a de facto contract, that is to say, a contract which has purported to pass the property to him from the owner of the property, then the purchaser will obtain a good title. And this is the case even though afterwards it should appear that there were circumstances connected with that con- tract, which would enable the original owner of the goods to reduce it and set it aside, for these circumstances so enabling the original owner of the goods or of the chattel to reduce the con- tract or set it aside, will not be allowed to interfere with a title for valuable consideration obtained by some third party during the interval while the contract remained unreduced (c). The essence of a sale in market overt is, that the goods should be openly exposed in the ordinary way, and also that the whole transaction should take place there and at one time {d). The protection attendant upon a sale in market overt, is not confined to ancient markets, created by charter or by prescription, but extends to modern markets established under powers conferred by statute (e). Every shop in the City of London is a market overt, for such things as are generally sold there, as plate sold openly in a gold- (a) Austen v. Cmrcii, i Taunt. 644 ; Wait V. Baker. 2 Ex. 1 ; 17 L. J. Ex. 307; Godts v. Rose, 17 0. B. 229 ; 25 L. J. C. r. 61. (6) Morgan v. Marquis, 9 Ex. 145 ; 23 L. J. Ex, 21. (c) Candy v. Lindsay, .3 App. Cas. (II. L.) 459, affirming 2 Q. B. D. 96 ; 46 I.. J. Q. B. 233 ; Kingsford v. Merry, 1 H. & N. 303 ; 26 L. J. Ey. 83. [d) Crane v. London Doek Co., 5 B. & S. 313 ; 33 L. J. Q. B. 224. Per Ld. EUenborougli iu Tewkesbury v. Diston, 6 East, at p. 451 ; Mansfield, C.J., Sill v. Smith, 4 Taunt at p. 532. (e) Gandy v. Ledbridge, 10 It. R. C. L. 33. TRESPASS AND CONVERSION OF CHATTELS. 131 smith's shop ; but otherwise if plate be sold in a scrivener's shop, Chap. VI. for none would search there for such a thing ( f). ' The goods must be openly exposed in bulk, and not sold by sample. Thus, where a sale takes place by sample in a shop in the City of London, of such goods as are usually sold in the shop, and the goods are afterwards delivered to the purchaser at another shop in the city, where another kind of business is carried on, such sale is not a sale in market overt, and does not change the property in the goods as against the true owner {g). A sale by public auction at a horse-repository outside the City of London, is not a sale in marAef overt ill). A shop situate anywhere else than in the City of London, is not a market overt (i). A distinction must be drawn between a sale by a shopkeeper to a customer, and a purchase by the shopkeeper for the increase of his stock, though both transactions take place in a shop in the City of London. In the former instance the sale is in market overt, in the latter it is not. Thus, where books have been stolen from A., and the thief takes and sells them to a bookseller in the City of London, the bookseller, though an innocent purchaser, acquires no right of property against A., because the sale to the bookseller was not in market overt. But if, whilst the books were in the shop, a customer of the bookseller purchases them, he acquires a title, defeasible only on conviction of the thief (_^'), because the sale to him was in market overt (k). By 24 & 25 Vict. c. 96, s. 100, it is enacted that if any person Sale of stolen coeds guilty {inter alia) of stealing or of obtaining any chattel, money, or other property by false pretences, shall be indicted on behalf of the owner of the property and convicted, in such case the property shall be restored to the owner. Where, however, a purchaser has acquired a good title previous to the conviction, he is entitled to retain the goods. Thus, A. obtained delivery of certain sheep from the defendant by false pretences. The plaintiff purchased the sheep from A., and paid A. for them without knowledge of the fraud, the defendant having done nothing in the meantime to avoid (/) The- Case of Market Overt, 5 Co. 2 Camp. 335. Rep. 83b ; Lyons Y. Depass, 11 A. & E. (i) Prior of Dunstahle's Case, 11 Hen. 326. VL, 19 pi. 13, 25 pi. 2; 2 Brownl. 288 ; ((/) Crane v. London Dock Co. , supra. Lee v. Bayes, stipra. (A) Lee v. Sayes or RoUnson, 18 C. B. (j) See 24 & 25 Vict. c. 96, s. 100. 599 ; 25 L. J. C. P. 249. A wharf is (k) White v. Spettigue, 13 M. & V. not a market oyert Wilkinson v. King, 603 ; 14 L. J Ex. 99. K 2 132 A TREATISE ON TORTS. Chap. VI, the contract between himself and A. The defendant finding the sheep on the plaintiff's premises retook possession of them. A. having been convicted of obtaining the sheep by false pretences on the prosecution of the defendant,- it was held that the statute did not revest the property of the sheep in the defendant as against the plaintiff who had acquired a good title to them before conviction, and consequently that the defendant was liable in an action against him for the value of the sheep (l). Goods which have been stolen may be recovered in trover from the purchaser of them in market overt, upon a conver- sion by him subsequent to the conviction of the felon, without an order for restitution having been made, for the effect of 7 & 8 Geo. 4, c. 29, s. 57, is to revest the property in stolen goods in the original owner upon conviction of the felon (m). Under 2 & 3 Vict. c. 71, ss. 29 — 30, a metropolitan poHce magistrate has power, under certain cii'cumstances, to order goods charged to have been stolen or fraudulently obtained, to be delivered to their rightful owner or otherwise disposed of, provided that no such orders shall be any bar to the right of any person to sue the party to whom such goods shall be delivered, and to recover such goods from him by action at law, so that such action shall be commenced within six calendar months next after such order shall be made (w). By the 2 & 3 Ph. & M. c. 7, and 31 Eliz. c. 12, certain pro- visions are made for the sale of horses at fairs and markets. By these provisions the property in any stolen horse is not altered by sale in market overt, until after six months have elapsed from- the time of the sale ; and the owner can obtain possession of the horse at any time afterwards on payment of the price to the purchaser. Certain statutory regulations must also be complied with at the time of the sale, otherwise the sale is void (o). {I) Moyce v. Newington, 4 Q. B. D. 506 ; 19 L. J. Q. B. 447. This was a 32 ; 48 L. J. Q. B. 125 ; see Peer v. decision under 7 & 8 Geo. IV. c. 29, s. Humphrey, 2 A. & E. 495 ; Honvood v. 67; a similar enactment to 24 & 25 Vict.- Smith, 2 T. R. 756. By 30 & 31 Vict. c. c. 96, s. 100. 35, 3. 9, where an order for restitution (n) See Bullock v. Dunlap, 2 Ex. D. of stolen property is made and any money 43 ; 46 L. J. Ex. 150. As to an action for is found in the possession of the prisoner, conversion of goods when hought from the it shall be given to any lond fide pur- police under this Act, see Buckley v. chaser of the property, on its restitution Gross, 3 B. & S. 566 ; 32 L. J. Q. B. to tlie oAvner, provided the sum so given 129. shall not exceed the amount for which (o) Qibbs' Case, Owen 27 ; 1 Leon, the property was sold. 158. (j/t) Scattcrr/ood v. Sylvester, 15 Q. B. TRESPASS AND CONVERSION OF CHATTELS. 133 The owner of stolen goods may recover them even from a honu Chap. VI. fide purchaser provided he has not bought them in market overt, and it is not necessary for the owner to prosecute the thief to conviction before he can recover them in an action against an innocent third person {p) ; for the obligation which the law is said to impose {q) on a person to prosecute the party who has stolen his goods before bringing his action, does not apply where the action is against a third party innocent of the felony (r). As a general rule a purchaser of a chattel out of market overt Goods obtained cannot acquire a better title than his vendor. This rule however '^""^ ^^"' ' must be qualified, for when a vendee obtains possession of a chattel, with the intention by the vendor to transfer both the property and possession, although the vendee has committed a false and fraudulent misrepresentation in order to effect the con- tract or obtain the possession, the property vests in the vendee until the vendor has done some act to disaffirm the transaction ; and the legal consequence is, that if before the disaffirmance, the fraudulent vendee has transferred either the whole or a partial interest in the chattel to an innocent transferee, the title of such transferee is good against the vendor (s). A contract for the sale of goods, obtained by fraud on the part of the purchaser, is void only at the election of the vendor; and it is too late to declare such election after the goods have passed into the hands of a bond fide purchaser (t) ; for the established principle is, that fraud only gives a right to avoid a purchase, that the property vests until avoided, and that all mesne dispositions to persons not paities to, or at least not cognizant of the fraud are valid (u). Where, however, the person selling the goods has obtained them by false pretences, there is no contract to pass the property, and consequently the innocent purchaser can obtain no title to them as against the true owner {v). Thus the plaintiffs who were (p) Lee V. Bayes or EoUnson, 18 C. 603 ; 14 L. J. Ex. 99. B. 599 ; 25 L. J. 0. P. 249. (s) Pease v. Gloahec, L. B. 1 P. C. 219 ; (q) See Wells v. Abrahams, L. R. 7 Q. BabcoA v. Lawson, 4 Q. B. D. 394 ; 48 B. 554 ; 41 L. J. Q. B. 306 ; Oshorne v. L. .T. Q. B. 524. Gillctt, L. R. 8 Ex. 88. It is somewhat {t) White v. Garden, 10 C. B. 919; 20 doubtful on the authority of the above L. J. C. P. 166. case.4 whether tlie right of aetion is sus- (u) Attenhorough v. St. Katharine's pended by the felony, even when the ac- Dock Co., 3 C. P. D. 450 ; 47 L. J. C. tion is brought against the felon himself. P. 763 ; Stevenson v. Neumham, 13 0. B. The maxim, that " no one can avail him- 285 ; 22 L. J. C. P. 110. self of his own wrong," would probably (u) SolUnsY. Fowler, L. E. 7 H. L. apply to a case where an allegation of 757 ; Kingsford v. Mcrrij, 1 H. & N. felonywaspleadedasadefencetoanaction. 503; 26 L. J. Ex. 83; Sardman v, (r) White v. Sjiettig^ie, 13 M, & W, Booth, 1 H. & C. 803, 134 A TREATISE ON TOKTS. Chap. VI. manufacturers at Belfast, received an order for goods signed " A. ' Blenkarn and Co.," 37, Wood Street, London, the word Blenkarn bsirrg so written as to resemble " Blenkiron." The goods were forwarded and addressed to "A. Blenkiron & Co.," 37, Wood Street, the plaintiffs being under the belief that they were in correspondence with thewell-knovvn firm of" Blenkiron and Sons," who carried on business at 123, Wood Street. The goods were ordered and received by Alfred Blenkarn, who had an office at 87, Wood Street, and the plaintiffs were induced by his fraud to send the goods to him. The plaintiffs, on discovering the fraud, prosecuted Blenkarn for obtaining goods by false pretences, and he was found guilty. Before his conviction he had sold part, of the goods to the defendants, who had no knowledge of the fraud, and they had resold them to other persons ; it was held that there was no valid contract for the sale of the goods by the plaintiffs, and that they were entitled to recover them from the defendants in an action for the conversion {x). Title to chattel Mere possession is sufficient against a wrongdoer {y), and y n ing. therefore the finder of an article is entitled to the possession of it against everyone except the real owner, and the place in which a lost article is found constitutes no exception to this rule of law. Thus a person entering a shop found on the floor a bundle of banknotes, which had been accidentally dropped there by a stranger. The party who lost them could not be found. It was held, that as against everyone but the true owner, the property in the notes belonged to the finder, and not to the owner of the shop, notwithstanding that the finder had immediately on picking up the bundle, handed it over to the latter with a view to its being restored to the true owner if he should return. And it was also held that the fact that the owner of the shop had advertised the finding in the newspapers, was no evidence that the finder intended to waive his title, having before he demanded the notes back offered to repay the expense of the advertisement, and to indemnify the shopkeeper against any claim {z). Where a bank- note or negotiable instrument, such as a bill of exchange or pro- {x) Cundy v. Lindsay, 3 App. Gas. 504 ; 1 Smith L C 459 ; 47 L. J. Q. B (H. L.) 481. (z) Bridges'v. s'awkeswoHh, 21 L. J. (j/> Armory v. Delamiric, 1 Strauge, Q. B. 75. and negotiable securities. TEESPASS AND CONVERSION OP CHATTELS. 135 missoiy note, has been lost, and the finder refuses on demand to Chap. VI. restore it to the rightful owner, he is guilty of a conversion («). i roperty in a banknote passes Like that in cash, by delivery, stolen notes and a party taking it bond fide and for value, is entitled to retain it as against the former owner, from Avhom it has been stolen (h). Thus where a money-changer in Paris twelve months after he had received notice of robbery of banknotes at Liverpool, took one of the stolen notes (for 500L) at Paris giving cash for it, less the current rate of exchange, from a stranger whom he merely re- qviu'ed to produce his passport and write his name on the back of the note ; it was held in an action against the Bank by the money- changer, that although he might have been guilty of negligence in not attending to the notice, yet that was not sufficient to affect his title to the note which he had taken iond fide, and for which he had given full value (c). Mere negligence is not sufficient to defeat the title of the holder of a negotiable security for which he has given value {d), though it may be evidence oi mala fides (dd). The presumption of law is that the title to a banknote or any other negotiable instrument is in the liolder (e), the onus there- fore lies upon the party impeaching such title to show that the possession was obtained maid fide (/). "Where a person takes a note or negotiable security with knowledge of the inffi-mity of title in the transferor, or gives no value, or much less than the real value, he will have no better title than the party from whom he received it (g). Where a person, in reply to a demand for the delivery of a bill of exchange, said he could not give it because it was burnt, it was held to be evidence of a conversion by him of the biU (h). Scrip issued iu England by the agent of a foreign government, by which the holder is to be entitled on payment in full of the in- stalments due from him, to delivery by the agent of definitive bonds of the foreign government on their arrival in this country, and which, by the usage of bankers and dealers m public (a) See Solomons v. Bank of England, 1098. 13 East, 135 ; Granty. Vaughan, 3 Burr. {dd) GoodmaiiY. Harvey, 4 Ad. &E. 870. 1516 ; Collins v. Martin, 3 B. & P. 649. (e) Middletmi v. Earned, 4 Ex. 241. (Ji) Miller v. Race, 1 Burr. 452; 1 (/) Worcester County BanTcy. Eorcli. Sm. L. C. person supplying an article, in respect of injury arising from the negligent construction of such article, may extend beyond the person to whom the article is actually supplied. Thus where the defendant sold a bottle of hairwash to a husband to be used by his wife and the latter was injured through using the same, it was held that the duty of the vendor to use ordinary care in com- pounding the wash extended to the person for whose use the vendor knew it was purchased (u). Ip) Burrows v. March Gas Co., L. R. D. 254 ; 47 L. J. C. P. 358. 7 Ex. 96 ; 41 L. J. Ex. 46 (Ex. Ch.). (s) Sccndall v. Netvson, 2 Q. B. D. {q) Parry Y. Smith, i C. P. D. 325; 102 (0. A.). The limitation as to latent 48 L. J. C. P. 731. defects laid down in Reaclhead v. Mid. (r) Crcnohurst v. Amersham Burial Mail. Co., L. R. 4 Q. B. 379 does not Board, 4 Ex. D. 5 ; 48 L. J. Ex. 109 ; apply to the sale of a chattel, see FTilson v. Newberry, L. R. 7 Q. B. {t) Ihjr,ian v. Nye, 6 Q. B. D. 685. 31 • Laurence v. Jenkins, L. R. 8 Q. B. {u) Georffc v. SJcivinc/ton, L. R. 5 Ex. 274 ■ Firth v. Boioling Iron Co., 3 C. P. 1 ; 39 L. J. Ex. 8. 2 A TKEATISE ON TORTS. hap. IX. This liability has been held to extend to all persons whom the person supplying the article invites to make use of it {x), but such liability does not extend to mere volunteers or the general (public (7/). Tower and The duties of gratuitous lender and borrower of a chattel are ^ttgl_° in some degree correlative. The loan must be taken to be for the purpose of a beneficial use by the borrower ; and the borrower is not responsible for reasonable wear and tear, but he is for negligence, for misuse, for gross want of skill in the use, and for anything which may be defined to be legal fraud. The lender is responsible for defects in the chattel, with reference to the use for which he knows the loan is accepted, of which he is aware, and owing to which directly the borrower is injured. By the necessarily implied purpose of the loan, a duty is contracted towards the borrower not to conceal from him those defects known to the lender, which may render the use of the article perilous to the borrower {z). Where the defendant gave the plaintiff a carboy or large bottle of nitric acid to carry without informing him of the dangerous nature of the acid, and the carboy burst, and the acid inflicted dangerous wounds upon the plaintifi' and burnt and destroyed his clothes and disabled him, it was held that the defendant was responsible in damages for the injury (a). No liability attaches to the lender of a chattel when he is unaware of its defective state (&). igligent use A person is bound to take due care in the management of a cliattel. chattel that it may not be the cause of injury to another. Thus, where the defendant was uncocking his gun, and the plaintiff was stopping to see it and the gun went off and wounded the plaintiff, it was held that the plaintiff might maintain an action for the injury (c). So where the defendant intrusted a loaded gun to an inexperienced servant girl and the girl pointed the gun in sport at the plaintiff, and drew the trigger and shot him in the eye and blinded him, it was held that the defendant was responsible in (x) Eeaven v. Pender, 11 Q. B. D. B. 167 ; see observations on this case in 503 (C. A, ), reversing 9 Q. B. D. 302. judgment of Cotton, L.J., Heaven v. (y) CoUis T. Selden, L. E. 3 C. P. Pender, supra, at p. 515. 495 ; Winterhottom v. Wright, 10 M. & (a) Farrant v. Barnes, 11 C. B. N. S. W. 109; judgment of Brett, M.R., 553 ; 31 L. J. C. P. 137. Heaven v. Pender, 11 Q. B. D. at p. 513. (6) McCarthy v. Yovmg, 6 H. & N. (s) Blackmore v. Bristol and Exeter 329 ; 30 L. J. Ex. 227. Bail. Go., 8 El. & B. 1035; 27 L. J. Q. (c) Underwoods. Hewson, 1 Str. 596. NEGLIGENCE. 1S:3 damages in consequeiioe of his negligence in intrusting the gun Chap. IX. to the girl (d) . ' A person who employs a contractor or builder to do a lawful Contractors act, is presumed, in the absence of evidence to the contrary, to ^""^ l'"'i'l"'«- employ him to do it in a lawful and reasonable manner, and therefore the employer is not responsible for damages occasioned by some casual act of negligence committed by the contractor or his servants in the course of the work (e). This rule does not however, apply to cases where the act which occasions the injury is one which the contractor is employed to do ; in such cases tjie employer would be held liable (/). So where the act is in itself wrongful, the employer is responsible for the wrong so done by the contractor or his servants, and is liable to third persons who sustain damage through the doing of that wrong (g). A person, who orders work to be executed on his premises, lawful in itself, but from which in the natural course of things, injurious consequences to his neighbour must be expected to arise, is guilty of negligence if he does not see to that which is necessary to prevent the mischief; the employment of a contractor to do the work does not relieve him of his responsibility (h). In cases where there is an implied warranty, the emjjloyment of a competent builder will not exonerate the emploj^er from liability for negligence on the part of the builder or his servants. Thus the defendant, acting on behalf of a committee of which he was a member, employed certain persons to erect and let to them a temporary stand for the use of persons desirous of seeing a steeplechase. The stand having been erected, the defendant on behalf of himself and his colleagues received money from the plaintiff and other visitors for the use of places on the stand. The contractors were competent and proper persons to be employed to erect the stand, but it was in fact so negligently erected, that it fell and caused injury to the plaintiff whilst he was upon it looking at the races. Neither the plaintiff nor the defendant knew of the improper construction of the stand. It (d) Dixon v. Bell, 5 M. & S. 198. B. D. 321 ; 45 L. J. Q. B. 446. (e) Butler v. Hunter, 7 H. & N. 826 ; {g) Bllis v. Sheffield Gas Co., 2 El. & 31'l. J. Ex. 214; Fickardr. Smith, 10 Bl. 767. C. B. N. S. 470. (h) Bower v. Peate, supra; Gray v. (/) Pickardy. Smith, supra; Holey. Pullen, 34 L. J, Q. B. 265; Tarry v. Sitti?ujbourne Bail. Co., 6 H. & N. 488 ; Ashton, 1 Q. B. D. 314. 30 L. J, Ex. 81 ; Boiver v. Peate 1 Q. >4 A TREATISE ON TORTS. Jhap. IX. was held that the contract by the defendant to be implied from ~' the relation which existed between him and the plaintiff, was, that due care had been used not only by the defendant and his servants, but by the persons whom he had employed to erect the stand, and that consequently he was liable for the injury to the plaintiff (i). A livery stable-keeper has been held not to be responsible for damage done to a carriage intrusted to his keeping, through the fall of a building owing to the negligence of the builder of which he, had no notice (/c). This case was decided on the ground that a private bailee for hire is only bound to take reasonable care of a chattel intrusted to his keeping (Q. Although contractors and buUders are liable for injuries caused to third parties through their own or their servant's negligence, yet if the damage is the result of an accident which they could not have reasonably foreseen and so provided against, they will not be held liable (m). A contractor employed by the Metro- politan Board of Works, under their compulsory powers, to open a public road for the purpose of constructing a sewer, is not liable, after filling in the trench and making that part of the road as sound and compact as it can then be made, for injury or damage to passengers in consequence of the natural subsidence of the soil which he has put in (n). Where a builder or contractor enters into a sub -contract with a person for the performance of a certain portion of the work, the sub-contractor under certain circumstances, may alone be held liable (o). nkeepers. Every person who keeps an inn or hotel is bound by the ity of. custom of the realm to afford such shelter and accommodation as he possesses to all travellers who appty for it in a decent and peaceable manner, and are ready to pay for their entertain- ment (p). If he refuses he is liable to an action for any damage sustained in consequence of such refusal (q), and also to an indictment at common law (r). {%) Francis v. Guckrdl, L. R. 5 Q. B. (o) Eapson v. Cuhitt, 9 M. & "W. 710 • 501 ; 39 L. J. Q. B. 291 (Ex. Ch.) Pearson v. Cox, supra; ' ' {k) Searle v. Zaverick, L. R. 9 Q. B. Wedge, i Ad. & E. 737, 122 ; 43 L. J. Q. B. 43. {p) HawtJwrn v. Hammond, 1 C. & (Z) Coggs y. Bernard, 2 Ld. Raym., at K. 404 ; Taylor v. Humphreys, 30 L. J. pp. 217-218. M. C. 242 ; Calye's Case, 8 Co. Rep. 32. (to) Pearson v. Cox, 2 C. P. D. 369. {q) Fell v. Knight, 8 M. & W. 269. (n) Hyams v. Webster, L. R. 4 Q. B. (r) Rex v. Iveiis, 7 C. & P. 213. 21 ; 38 L. J. Q. B. 138. NEGLIGENCE. 185 The extent of the innkeeper's liability is limited by the amount Chap. IX. of accommodation he possesses. Thus, if he has only a stable for horses, he is not bound to take in a carriage ; if he only professes to take in personal luggage, he is not bound to take in articles of extraordinarjr bulk (s). A person who keeps an hotel is an innkeeper (t), but a salaried who is con- manager of an hotel belonging to a company is not an innkeeper ^^^^f™^ ^'^ ^™' so as to be by law responsible for the goods and property of visitors, although the usual licence under 1 Geo. 4 c. 61, has been granted to him personally («.). A person who keeps a refreshment bar is not an innkeeper (i?) ; the keeper of a " London coffee house," where beds and provisions are furnished by the day or night, is (a;). An innkeeper is responsible for the safe custody of the pro- Relationship perty of his guest, provided that there has been no contributory a^ji™ueTtr'^^ negligence on the guest's part (y). And although it is not neces- sary that the guest should spend the night at the inn (z), yet the relation of landlord and guest must have commenced before this responsibility can attach (a) . Where a guest laid a reticule containing money on her bed, and afterwards went into her sitting room, the door of which was opposite the bed-room, and remained there about five minutes, and then sent her companion for her reticule, which was missing, and could not afterwards be found, it was held that the inn- keeper was bound to make good the loss (6). If a guest at an inn directs valuable goods to be placed in the public room, and if the innkeeper does not require them to be removed to a safer place, he is responsible to the owner for their loss in the event of the goods being stolen (c). If' a guest takes upon himself the exclusive charge of the goods which he brings to the inn, he cannot afterwards charge the innkeeper with the loss (d). It has been held that there is no obligation on the part of the (s) Broadwood v. Omnara, 10 Ex. guest, see Sandys v. Flonnee, 47 L. J. C. 423 ; 24 L. J. Ex. 1. P. 598. (i!) Jones v. Osborn, 2 Chit. 484. (s) Bennett v. Mellor, 2 Q. B. D. 136 ; (m) Dixon V. Birch, L. R. 8 Ex. 135 ; Day v. Bather, 2 H. & C. 14 ; 32 L. J. 42 L. J. Ex. 135. Ex. 171. (v) Reg. V. Rynur, 2 Q. B, D. 136; (a) Strauss y. County Hotel Co., 12 Q. 46 L. J. M. C. 108. B. D. 27 ; 53 L. J. Q. B. 25. (x) Thompsons. Lacy, 3 B. & AH. 283. (*) Kent v. Shuekard, 2 B. & Ad. 803. (y) Morgan v. Ravey, 6 H. & N. 265 ; (c) Richmond v. Smith, 8 B. & C. 9. 30 L. J. Ex. 131. As to innkeeper's {d) Famworthy. Paclcwood, 1 Stark, liability for injury to the person of his 249. ISO A TREATISE ON TORTS. Chap. IX. Contributory negligence ofl guest. Innkeeper's Liability Act, 26 & 27 Vict. 0. 41. guest at an inn to lock or fasten the door of the room in which he sleeps ; and that the omission to do so does not discharge the innkeeper from his liability to answer for the goods of the guest, stolen from the room in which he slept (e). This cannot, however, be laid down as a universal proposition, but each case must depend upon its own circumstances (/). If the negligence of the guest occasions the loss in such a way as that the loss would not have happened if the guest had used the ordinary care that a prudent man may be reasonably expected to have taken under the circumstances, the innkeeper is not responsible (g). Thus, a guest at an inn went to bed, leaving a bag, containing about £27, in his trousers pocket. He left his trousers on the ground at the side of the bed farthest from the door. There was a key in the lock of the door, but he only shut the door, and did not lock it. He had previously pulled the bag containing the money out of his pocket in the commercial room, for the purpose of paying somebody some money. In the course of the night somebody entered his bedroom through the door, and stole the bag of money. It was held that his conduct amounted to such negligence as to deprive him of his right to recover against the innkeeper (h). By the Innkeeper's Liability Act, 1863, 26 & 27 Vict. c. 41, s. 1, it is enacted that no innkeeper shall be liable to make good to any guest any loss of, or injury to goods or property brought to his inn, not being a horse or other live animal, or any gear appertaining thereto, or any carriage, to a greater amount than the suin of thirty pounds, except in the following cases : — (1.) Where such goods or property shall have been stolen, lost, or injured through the wilful act, default, or neglect of such innkeeper, or any servant in his employ. (2.) Where such goods or property shall have have been deposited expressly for safe custody with such innkeeper. Provided that in the case of such deposit it shall be lawful for such innkeeper, if he think fit, as a condition of his liability, that such goods or property shall be deposited in a box or other receptacle, fastened and sealed by the person depositing the same. {e) Mitchell y. Woods, 16 L. T. 676 ; Morgan v. Ramy, supra. (/) Herhert v. Marhwell, 45 L. T. 649 ; (affirmed by C. A.) "W. N". 1882, 112, (3) GasMll V. Wright, 6 El. & Bl. 891. {h) Oppenhnm v. White Lion Hotel Co., L. R. 6 C. P. 515 ; 40 L. J. C. P. 93 ; Armistead v. PFilde, 17 Q. B. 261 ; 20 L. J. Q. B. 624, >'EGLIGENOE 187 By section 2, if any innkeeper refuses to receive for safe Chap. IX. custody, any goods or property of his guest, or if any guest, through anj' default of su.ch innkeeper, is unable to deposit such goods or property as are mentioned in the Act, the innlceeper will not be entitled to the benefit of the Act in respect of such goods or property. By section 3, every innkeeper is required to have at least one copy of the first section of the Act, printed in plain type, to be exhibited in a conspicious part of the hall or entrance to his inn, and he is entitled to the benefit of the Act in respect of such goods or property only as shall be brought to his inn, while such copy shall be exhibited. In an hotel a notice was exhibited, con- taining a copy of the first section of the Act, correct in every particular, only that in the exception the word " Act " was accidentally omitted. It was held that this was a material omission, and that the notice was insufficient to protect the inn- keeper (i). A solicitor, in undertaking a client's business, undertakes to Solicitors. bring to the conduct of it a reasonable degree of care and skill (fc), and is therefore responsible in damages to his client for gross ignorance or negligence (I) in the performance of his professional duties (m). " It would be extremely difficult," observes Lord Tenterden (n), '■' to define the exact limit by which the skill and diligence which an attorney undertakes to furnish in the conduct of a cause is bounded ; or to trace precisely the dividing line between that reasonable skill and diligence which appears to satisfy his under- taking and that crass negligeiitia or lata culpa, mentioned in some of the cases, for which he is undoubtedly responsible. The cases, however, appear to establish, in general, that an attorney is liable for the consequence of ignorance or non-observance of the rules of practice of the Court in which he sues ; for the want of care in the preparation of the cause for trial ; or of attendance thereon with his witnesses ; and for the mismanagement of so much of the {{) Spice V. Bacon, 2 Q. B. D. 463 ; 46 p. 11. Although a term in constant use L. J. Q. B. 713 (C. A.) in legal argument, no satisfactory deii- (k) Hart v. Prance, 6 C. F. 193 ; nition of it has been, or probably ever GaldiodlY. Hunter, 10 Q. B. 82 ; Parker will be, given. V. Rolls, 14 C. B. 691, (m) Pitrves v. Landell, 12 CI. & Fin. (I) As to the meaning of the term 91. "gross negligence," see judgment of (ra) Godfrey v. Dalton, 6 Bing. 46r- Earle, J., in GasUlly. Wright, 6 El. & 469. Bl. 891 ; Campbell's Law of Negligence, 1S8 A TREATISE ON TORTS. Chap. IX. conduct of a cause as is usually and ordinarily allotted to his ^ department of the profession. Whilst on the othef hand, he is not answerable for error in judgment upon points of new occur- rence, or of nice or doubtful construction, or such as are usually intrusted to men in the higher branch of the profession of the law We lay no stress upon the fact that the attorney had consulted counsel ; because we think his liability must depend upon the nature and description of the mistake or want of skill which has been shown ; and he cannot shift from himself such responsibility by consulting another where the law would presume him to have the knowledge himself." Where a solicitor conducting an action neglects to comply with the practice of the Court, and neglects to take some necessary step in the action, by means whereof all the previous proceedings become useless, he will be responsible in damages to his client (o). So, likewise, if he brings an action for his client in a court which manifestly has no jurisdiction {p) ; or negligently suffers judgment to go by default when he is retained to defend an action (q) ; or fails to instruct counsel properly ; or neglects to procure the due attendance of witnesses at the trial (r). A solicitor is not justified in compromising an action contrary to his client's directions (s), nor in entering into an agreement to postpone execution, after judgment in favour of his client (t). An error of judgment on a point of law, upon which reasonable doubts may be entertained, is not sufficient to render a solicitor liable to an action for negligence («). Where a solicitor is employed by a client to investigate a title, or obtain proper security for money advanced on mortgage, he will be answerable in damages for negligence, should the client, on the faith of his representations, accept a title which is obviously defective, and lend money on a security manifestly insufficient {x). If a solicitor relies upon his own judgment as to the interpreta- (o) SuTiter V. Caldwell, 10 Q. B. 83 N. S. 289. (Ex. Ch.); jBraceij v. Carter, 12 Ad. & {s) Fray v. Fowles, 28 L. J. Q. B. E. 373. 232. (p) Williams v. Gibbs, 6 N. & M. {t) Lovegrove v. IVhite, L. R. 6 C. P. 788 ; Cox V. Leech, 1 C. B. N. S. 617 26 L. J. C. P. 125. (q) Godefroy v. Jay, 7 Bing. 413 Eoby V. Built, 3 B. & Ad. 350. (r) Havikins v. Harwood, 4 Ex. 506 19 L. J. Ex. 33 ; De Boufigny v. Peale, 3 Taunt. 484 ; Tpwnley v. Jones, 8 C. B, 440. (ii) Kemp V. Burt, 4 B. & Ad. 424 : Crosbie v. Murphy, 8 Ir. C. L. R. 301. (x) Knights v. Qttarles, 4 Moore, 532 ; Sowcll V. Young, 5 B. C. 259 ; White- man V. Hawkins, 4 C. P. D. 13 ; Ex parte Valpy, L. R. 7 Ch. 289. NEGLIGENCE. 3 SO tion and legal operation of deeds, he does so at his peril; he Chap, IX. ought to lay them before counsel if he wishes to avoid the respon- sibility of acting on his own judgment respecting them {y). If a client entrusts money to a solicitor for the purpose of investment of a particular kind, and he invests in an unauthorised security, he is bound to repay it just as if it still remained in his hands uninvested (z). Where a firm of solicitors allowed their client to execute an unusual covenant, without exjplaining the liability thereby incurred, they were held responsible to him for consequent loss, notmthstanding that he himself at the time of the execution was aware of the fact in respect of which he afterwards incurred the liability on his covenant (n). Every person who enters into a learned profession undertakes Medical men. to bring to the exercise of it a reasonable degree of care and sldll : a sui'geon does not undertake that he will perform a cure, nor does he undertake to use the highest possible degree of skill, as there may be persons of higher education and greater advantages than himself; he onty undertakes to bring a fair, reasonable, and competent degree of skiU (h). Where gross negligence and want of professional skill, to the detriment to his patient, is proved against a medical man, he will be responsible in damages to his patient (c). A. person not qualified as being a regular medical practitioner, but assuming to be or practice as such, and undertaking to treat another for a disease, is liable for injury caused by ignorant and improper treatment, by which the patient is rendered worse instead of better, and is injured by the use of improper medicines (d). Section II. — Negligence in Eailway Companies. Every railway company is bound to exercise due care in the working and management of their line and stations, and if through their neglect to use such care injury is caused to a passenger, (y) IresMi v. Pcwrman, 3 B. & C. 813. [a) Stannard v. Vllitlwrne, 10 Bing. An action for negligence in his profes- 491. sional capacity will not lie against a (6) LampMer v. Phixios, 8 C. & P. barrister ; Swinfen v. Ld. Chelmsford, 5 475. H. & N. 918 ; 29 L. J. Ex. 382. (c) Sean v. Prentice, 8 East, 348 ; iz) Per Mellish, L.J., l?awyer v. Good- Glad-well v. Steggall, 5 Bing, N. C. 733. win, I Ch. D. at p. 356. {d) Ruddock v. Lowe, 4 F. & F. 519. 190 A TREATISE ON TOETS. Obligations on railway com- panies by statute. By common law. Chap, IX, and in some instances to the general public (e), the company will be held responsible in damages. By the Railway Clauses Act, 8 & 9 Vict. c. 20, a statutory obligation is imposed upon all railway companies to keep uj) and maintain fences (s. 68), to erect and maintain bridges over high- ways (s. 46), and to maintain good and sufficient gates at level crossings (s. 47). These enactments are for the benefit of the general public, or in the case of maintaining fences, only for the benefit of adjoining landowners, and a neglect to comply with these obligations will render the company liable to any one of such persons who sustains an injury in consequence of such neglect. In addition to the above statutory obligations every railway companj' is responsible at common law for the maintenance and preservation in a good state of repair of all its bridges, viaducts, and embankments, so that if any injuries are sustained by persons passing along a highway under a bridge or viaduct, from the ruinous or insecure state of such bridge or viaduct, the railway company will be held liable (/). Thus a person was walking on a highway under a bridge forming part of a line of railway, when a brick fell from its place and injured him. He at the time heard the noise of a train passing above. It was held that these facts were sufficient evidence of negligence on the part of the railway company (g). Railway fences. By the Railway Clauses Act, 8 & 9 Vict. c. 20, s. 68, it is enacted that railway companies shall make and maintain fences for separating the land taken for the use of the railway -from the adjoining lands and preventing the cattle of the owners or occupiers thereof from straying thereout by reason of the railway (/i). This obligation to fence applies only to the owners or occupiers of the adjoining land (i) ; a railway company is not bound to fence against mere trespassers. Thus where the plaintiff's sheep escaped from his own land to an adjoining close and were trespassing there, and from thence passed on to the defendant's line through a defect in the railway fence and were killed by a passing train, it was held that the company were not (e) ffolmes v. N. E. Rail. Co., L, R. 4 Ex. 254 ; affirmed on appeal, L. R. 6 Ex. 123 ; Rogers Y.Rhymney Rail. Co., 26 L. T. 879. (/) Ctrote V. Chester & Holyhead Rail. Co., 2 Ex. 261 ; Tebbutt v. Rristol cD Sxeler Rail. Co., L. R. 6 Q. B. 75. (g\ Kearney v. London & Brighton Rail. Co., L. E.. 6 Q. B. 759 : 40 L. J. Q. B. 285 (Ex. Ch.). (7i) Buxton V. N. E. Rail. Co., L. R. 3 Q. B. 549 ; 37 L. J. Q. B. 258. (i) Marfell v. 8. Wales Rail. Co., 8 0. B. N. S. 525 ; 29 L. J. C. P. 315. RAILWAY NEaLIGENCE. 191 liable (j). Where the cattle are upon the adjoining close with Chap, IX. leave and license of the occupier, they are in the same position as if they were his own cattle, and the company will be held liable should they stray on the line and be injured (k). The obligation of a railway company to fence under this section against the owners and occupiers of lands adjoining the railway, is co-extensive onlj' with the common law obligation to fence {I). This section imposes no duty on a railway company towards their passengers to keep up the fences, the obligation is towards persons off the line {vi). "Where the owner of a close adjoining a railway has released the company from their obligation, under this section, such release does not affect the rights of the occupier if he sustain damage through the company's neglect to fence. The plaintiff in 1846, became tenant from year to year of land belonging to one G . In 1847 the defendants, a railway company, acquired part of the land in the exercise of their statutory powers, and by arrange- ment with Gr., paid him compensation in lieu of all accommoda- tion works, including the right to have his land fenced from the railway, G. releasing the defendants from their statutory obligation in that respect. The defendants, however, made a fence of posts and rails between the land so occupied by the plaintiff and a ditch in the defendant's land adjoining the railway, and they planted a hedge on the side of the ditch nearest the railway, itself sufficient to prevent animals from straying thereon. They, how- ever, neglected to keep up the posts and rails, and in consequence of their neglect to do so, a cow belonging to the plaintiff, in 1879, whilst the T>laintiff so continued in the occupation of the land under the original tenancy, which had never been determined, fell into the ditch and was killed. It was held, that the company were liable for the loss of the cow, for that their arrangement with the owner did not exonerate them from their liability, under s. 68 of the Kailway Clauses Act, 1845, to maintain the fence for the benefit of the occupier, and so as to prevent his cattle from straj'ing from his land (n). (j) Rickctts V. E. (b TV. India Dock <£; Rail. Co., supra, at p. 20i; IFiseinan v. Rail. Co., 21 L. J. C. P. 201. Broker, 3 C. P. D. \%L {k) Dawson v. Midland Rail. Co., L. (m) Buxton v. N. E. Rail. Co., supra, E. 8 Ex. 8. Harrold v. G. ^¥. Rail. Co., 14 L. T. 440, a) MancMster ^^ ^^^^^^ *« exercise the greatest care for the safety of its of passengers. ' ' ■■ — — (o) Lawrence Y. G. N. Rail. Co., 16 Q. (q) Vaughan v. Taff Vale Rail. Co., 5 B. 643 ; 20 L. J. Q. B. 293 ; Surdman H. & N. 679 ; 29 L. J.' Ex. 247 (Ex. Ch.) ; \. N.E. Rail.Co.,^ 0.7.11. lQi\iTL. FremantleY. L. & N. JT. Rail. Co., 10 G. J. 0. P. 386 ; Bisooe v. G. K Rail. Co., B. N. S. 89 ; 31 L. J. C. P. 12. L. E. 16 Eq. 636. (r) Jones v. Festiniog Sail. Co., L. E. 3 ip) Smith V. L. & S. W. Rail. Co. , L. E. Q. B. 733 ; 37 L. J. Q. B. 214. 6 C. P. 14 (Ex. Ch.) ; 40 L. J. C. P. 21. RAILWAY NEOLIGKNOK. 100 passengoi's, and is answerable for any neglit^'enee on the part of Oliap. IX, its servants by which a passenger sustains injury (s). Where the injury is the result of contributory negligence on the part of the passenger, or the result of an accident which care and vigilance could not Jiave provided against, the company will not be held responsible (/). A railway company does not warrant the absolute safety of its No warranty ]3assengers, but it is bound to take reasonable care to use the best precautions in knov/n practical use for securing their safety. " I apprehend," says Lord Hatherley, L.C., " that all that is required to be done by those who carrj^ passengers for hire, is that thej' are bound to see that everything under their own control, is in full and complete'and proper order. They are bound to see, also, if there be a certain and definite risk as to which they have any knowledge or can reasonably be supposed to have any knowledge, that it is sufficiently guarded against " (((). There is a great distinction between the liability of a carrier in Diatinotiou of respect of goods and in respect of passengers. In Aston v. t',veen'^caiTiers Heaven (.r) which was the case of an injury to a passenger, Eyre, of passengers C.J., after carefully pointing out the law as to the liability of carriers of goods to make good all losses except those happenmg from the act of God, or the King's enemies, and the reasons for it, says, " I am of opinion the cases of losses of goods by carriers and the present are totally unlike," and he further says, " this action (referring to an action for an injury to a passenger) stands on the ground of negligence alone." In Christie \. Griggs (ij), Sir James Negligence, Mansfield says, "there is a difference between a contract to carry the gist of an •^ ' '^ action in case goods and a contract to carry passengers. For the goods the of personal carrier was liable at all events, but he did not warrant the safety ["aisenn-er. of the passengers. His undertaking as to them went no further than this, that as far as human care and foresight could go he would provide for them safe conveyance." In Crofts v. Water- koxLse {z) Vsxk, J. observes, "A carrier of goods is liable at all events * * * a carrier of passengers is only liable for negli- (s) The action for negligence against a {t) Daniel v. Metro. Hail. Co., L. R. 5 railway company lias been called an H. L. 45 ; Rcadlicad v. Hid. Hail. Co., action for a tort founded on contract, i.e. L. E. i Q. B. 379 (Ex. Cli.). to cany the passenger safely ; see Martin (u) Daniel v. Metro. Rail. Co., sup-a, V. G. N. Mail. Co., 16 C. B. 179. But it at p. 55. may also be an action for a, pure tort ; see (x) 2 Esp. 533. BerringevY. G. E. Rail. Co., 4 C. P. D. (y) 2 Camp. 79. 163. (-) 3 Bing. 319. 200 A TREATISE ON TOKTS. Chap. IX. Neglect to carry passenger safely, a wrong independent of contract. Management of trains. gence." In Ford v. London and South Western Railway Co., (a) Avhich was an action for personal injuries brought by a passenger against the railway company, Erie, C. J., directed the jury that this action was " grounded on negligence." It has been laid down that the right which a passenger by railway has to be carried safely, does not depend on his having made a contract, but that the fact of his being a passenger casts a duty on the company to carry him safely (&). Thus by the 7 & 8 Vict, c. 85, s. 6, railway companies are bound to carry, by certain trains, children under three years of age free of charge, and are entitled to half the fare charged for an adult in respect of all children between three and twelve years of age. The plaintiff's mother carrying in her arms the plaintiff, a child of three years and two months old, took a ticket for herself by one of these trains on the defendants' railway, but did not take a ticket for the plaintiff ; in the course of the journey an accident occurred through the negligence of the defendants, and the plaintiff was injiu'ed. At the time the plaintiff's mother took her ticket no question was asked by the defendants' servants as to the age of the child ; and there was no intention on the part of the mother to defraud the company. It was held that the plaintiff was entitled to recover against the defendants for the injury he had received (c). Where the engine-driver from negligence or unskilfulness causes the train to leave the rails or to come into collision with another train, the railway company are liable for any injuries that may have been sustained by the passengers (d). A railway company is not liable when there is evidence that the train ran off the line in consequence of the malicious act of a stranger, there being no proof of negligence on the part of the company (e). A passenger injured on a railway proves a prima facie case of negligence against the company, by showing that when the accident occurred, the train and railway were exclusively under (ffi) 2 F. & F. 730 ; see SiTnson v. L. a. 0. Co., L. E. 8 C. P. 390. (6) Marshall v. York & Newcastle Bail. Co., 11 C. B. 655 ; Austinv. G. W. Bail. Co., L. R. 2 Q. B., per Blackburn, J., at p. 445 ; Foulkes v. Metrop. District Bail. Co., (C. A.) 5 C- P. D. 157 ; Hooper v. L. i: N. W. Bail. Co., 50 L. J. Q. B. 103. Where a railway company issues a through ticket for a journey, part of which is to be performed in a foreign country, they can limit their responsibility for negli- gence occurring on their own line, pro- vided that the passenger taking the tickets has notice of such condition ; Biirhe v. S. E. Bail. Co., 5 0. P. D. 1. (c) Austin V. G. W. Bail. Co., supra. (d) Collett V. L. cfc N. TV. Bail. Co., 16 Q. B. 984 ; SHnner v. L. B. ) Cubitt V. Maxse, L. E. 8 C. P. 704 ; 42 L. J. C. P. 278. [q) Notes to Dovaston v. Payne, 2 Sm. L. C. 5th ed. p. 131 ; B. v. Lloyd, 1 Camp. 260. NUISANCES ON HIGHWAYS. 247 carriage way leading from one public thoroughfare to another Chap. X. tlioroughfare and leaves it open to all the world for a great number of years without any bar or chain across it, it is to be presumed to be dedicated to the public, and becomes a highway, and this although the road was originally opened for the purpose of private convenience (r). When the passage of the public is allowed under some special agreement or license of the owner of the soil, the conditional and permitted user will not establish a public right, so as to make the way a public thoroughfare (s). To constitute a dedication of a way to the jDublic by an owner of the soil, there must be an intention so to dedicate, of which the user by the public is evidence, subject to be rebutted by contrary evidence (t). The question of dedication does not depend upon a man's words but upon his acts. "A man may Dedication say that he does not mean to dedicate a way to the public ; and 'i^i's'^'l^ "1^°"^ yet if he has allowed them to pass every day for a length of time, his declaration alone would not be regarded. The facts may warrant a jmy in believing that the way was dedicated, though he has said that he did not so intend ; and if his intention is insisted upon, it maybe answered that he should have shewn it by liutting up a gate or some other act " (»). Closing a way up fur only one day in the year is sufficient to show that there was no intention to dedicate it to the public (.r). If a road has been used by the public for a great number of years, a dedication by the owner of the soil maj' be presumed, and it is not material to inquire who the owner was, or whether he intended to dedicate it to the public (?/). The user of a way by the public is not conclusive of the way being a public highway, it is evidence only to be taken into consideration with sm-rounding circumstances. Where therefore there was a wood, with divers paths or tracks through it lead- ing in different directions, and people wandered where they pleased through the woods and made tracks, but the tracks were used only in dry weather, and were hardly passable after rain, and led to no public place which could not be reached by a more convenient thoroughfare, it was held that this was a mere per- (r) E. V. Lloyd, mpra. Johnson, 8 A. & E. at p. 105. (s) Barraclmghv. Johnson, 8 AJ. & (.c) Trustees of British Museum v. E. 99, Finnis, 5 C. & P. 4B5. (t) Poole V. Euskinsoii, 11 M. & "W. (//) Eeg. v. East Mark Tytldng, 11 Q, 827. B. 877. (u) Per Littledale, J., Barraclough v. 248 A TREATISE ON TORTS. Chap. X. Public user piimd facie evidence of dedication. Occupation roads. Time necessary for proof of a dedication. Highway though no tlioroughfare. Limited dedication. missive user of the wood for the purposes of recreation and pleasure, and that there was no dedication of a way to the public to be used " as of right " (z). Public user of a road for some time is sufficient prima facie evidence of a dedication to the public, and it lays upon the party denying the effect of the user to show that there was no one who could dedicate (a.). Occupation roads, laid out for the convenience of the occupier, through whose estate they are made are not thereby dedicated to the public (6). " No particular time is necessary for evidence of a dedication. If the act of dedication be unequivocal, it may take place imme- diately. For instance, if a man build a row of houses opening into an ancient street at each end, making a street, and sells or lets the houses, that is instantly a highway " (c). Eight, and even six years, have been held time enough to presume a dedica- tion from user (d). No fixed period, however, can be laid down, and each case must depend upon its special circumstances. A public highway may in law exist over a place which is not a thoroughfare. Where there was a public street, and at the side of it a passage leading into a court consisting of fifteen houses, all of which belonged to the plaintiff, but the court had been freely used by the public for many years without restriction, it was held that this was evidence from which a jury might find a dedication to the public, although the court and the thorough- fare had originally been made for the use of the occupiers of the houses, and led only to their dwellings (e). It is doubtful whether a road which has been long used as a public highway stUl retains its character as such, when it has been lawfully stopped at one end (/) ; when stopped at both ends, it does not (g). There can be no dedication of a highway to a limited portion of the public, such a dedication is merely void, and does not operate as a dedication to the whole public, neither can there be (z) Schwinge v. Dowdl, 2 F. & F. 848. (a) Reg. v. Petrie, 2i L. J. Q. B. 167 ; 4 El. & Bl. 737. (6) Selby v. Crystal Palace District Gas Co., 30 Beav. 606 ; 31 L. J. Ch. 595. {c) Per Chambre, J., in Woody er v. Sadden, 5 Taunt. 125. {d) Trustees of Rughy Charity v. Merry- weather, 11 East. 375. (e) Pateman v. Black, 18 Q. B. 870 ; 21 L. J. Q. B. 407. (/) Rex V. Dovmshire (Marquis), 4 A. & E. 698. ig) Bailey \. Jamieson, 1 C. P. D. 329. NUISANCES ON HIGHWAYS. 249 a dedication for a limited time (/^). There may, however, be a dedication for a limited purpose as for a foot-way only, and not for horses and carriages. In an ordinary highway running between fences, the right of passage prima facie, extends to the whole space between the fences, and the public are not confined to that part which is metalled and kept in repair for passengers (i). A pubhc right of way can only be extinguished by statute, and the General Highway Act, 5 & 6 Will. 4, contains, from s. 84 to 92, full directions as to the mode in which it can be stopped up or deviated by the order of two justices. There is no extinguish- ment of the pubHc rights by presumption or prescription, hence the maxim " once a highway always a highway " (fc). Public rivers are in law to be considered as highways, and as such are passages open to the general public {I). Chap. X. Extent of public rights over. Extingiiieli- ment of higliway. Public rivers are highways. (h) Bermondscy Vestry v. Brown, L. R. 1 Eq. 204 ; Poole v. Huskitison, 11 M. & W. 827. In the notes to Dovaston v. Payne, 2 Smith, L.C., 5th ed. 133, the learned editors suggest that such a right may be created by custom, and cite Paynton v. Wilson, 2 Lutw. 1507, and Co. Litt. 4a in support of tlie propo- sition. (0 Reg. V. U. K. Electric Tel. Co., 31 L. J. M. C. 166. {k) Per Byles, J., Dawes v. Jlawkiiis, 8 C. B. N. S. 857; 29 L. J. C. P. 343. (I) See 2 Ld. Raym. 1174 ; R. v. LJ. Grosvenor, 2 Stark. 511 ; Dimes v. Ped- Icy, 15 Q. B. 276. CHAPTER XL FEAUD AND MISREPRESENTATION. Chap. XI. Fraud. Knowledge of defendant. An action will lie to recover damages where the defendant has stated or represented as a matter of fact that which is untrue, knowing it to be untrue, with intent to induce the plaintiff to act upon it, and has thereby induced the plaintiff to act upon it to his loss {a). In such a case there is that conjunction of wrong and loss which entitles the injured party to compensation in damages (b). So also, if a person recklessly, not caring whether it be true or false, makes a statement with the intention that another should act upon it, that also is fraud, and will render the person making such statements responsible in damages to him who suffers loss in consequence of acting upon it (c). "I conceive," observes Maule, J., "if a man having no knowledge whatever of the subject takes upon himself to represent a certain state of facts to exist, he does so at his peril, and if it be done either with a view to secure some benefit to himself or to deceive a third person, he is in law guilty of a fraud, for he takes upon himself to warrant his own belief of the truth of that which he so asserts. Although the person making the representation may have no knowledge of its falsehood, the re]3resentation may still have been fraudulently made " {d). In a case in which a false misrepresentation was alleged as a ground for the rescission of a contract : Jessel, M.E. makes the following observations upon the law as affecting false misrepresentation (e). " Before going into the details of the case, I wish to say something about my view of the law applicable (a) Pasley v. Freeman, 3 T. R. 51 ; 2 Sm. L. C. ; Langridge v. Levy, 2 M. & W. 519 ; 4 M. & W. 337 ; Ormrod v. Suth, 14 M, & W. 651. - (6) Gerhard v. Bates, 2 El. & Bl. 476 ; 22 L. J. Q. B. 364. (c) Smith Y. Ghadwiek, 20 Cli. D. 27 C.A.); affirmed in H. L. W. N. 1884, p. 49 ; JoUffe v. Baker, 11 Q. B. D. 275. (d) Evans v. Edmonds, 13 C. B. 777 ; Fawson v. Watson, Cowp. 788, per Ld. Mansfield ; Ilaycroft v.Oreasy, 2 East. 103, per Ld. Kenyon ; Behn v. Burness, 3 B. & S. 751, 32 L. J. Q. B. 204 (Ex. Cli.). (c) Redgrave t. Hind, 20 Ch. D. at pp. 12-13. FRAUD AKD misrepresentation. 251 to it, because in the text books, and even in some observations of Chap, XI. noble lords in the House of Lords, there are remarks which I think, according to the course of modern decisions, are not well founded, and do not accurately state the law. As regards rescission of a contract, there was no doubt a difference between the rules of Coui'ts of Equity and the rules of Courts of Common Law — a difference which of course has now disappeared by the operation of the Judicature Act, which makes rules of equity prevail. Accord- ing to the decisions of Courts of Equity it was not necessary, in order to set aside a contract obtained by material false misrepre- sentation to prove that the party who obtained it knew at the time when the representation was made that it was false. It was put in two ways, either of which was sufficient. One waj^ of putting the case was " A man is not to be allowed to get a benefit from a statement which he now admits to be false. He is not to be allowed to say, for the purpose of civil jurisdiction, that when he made it he did not known it to be false ; he ought to have found that out before he made it." The other way of putting it was this " even assuming that moral fraud must be shewn in order to set aside a contract, you have it where a man, liaving obtained a beneficial contract by a statement which he now knows to be false, insists upon keeping that contract. To do so is a moral delinquencj' : no man ought to seek to take advantage of his own false statements." The rule of equitj' was settled, and it does not matter on which of the two grounds it has rested. As regards the rule of Common Law, there is no doubt it was not quite so wide. There were indeed, cases in which, even at Common Law, a contract could be rescinded for misrepresenta- tion, although it could not be shewn that the person making it, knew the I'epresentation to be false. They are variously stated, but I think, according to the later decisions the statement must have been made recklessly and without care, whether it was true or false, and not with the belief that it was true. But as I have said, the doctrine in equity was settled bej'ond controversy, and it is enough to refer to the judgment of Lord Cairns in the Eees TUcer Silver ]\Iining Company v. Smith (/), in which he lays it down in the way I have stated." A fraud may also be committed by the suppression of something Supprcssio which is true, and which it is the duty of the person making the ''^"" (/) L. R. 4H. L. 64. 252 A TREATISE ON TORTS. Chap. XI. statement, to disclose (5-). "Every man," observes Willes, J., " is bound not wilfully to deceive others " (h), and a swppnssio veri may prove equally misleading as a suggestio falsi. To con- stitute a fraudulent misrepresentation, it need not be made in terms expressly stating the existence of such state of facts ; but if it be made by one party in such terms as would naturally lead the other party to suppose the existence of such state of facts, and if such statement be so made designedly and fraudulently, it is as much a fraudulent misrepresentation, as if the statement of the untrue facts v/ere made in express terms (i). Legal and The expression, " legal fraud," which is to be found in some of mora lau . ^^iq earlier reported cases on misrepresentation {k), has been con- sidered by several eminent judges as meaning nothing more than "fraud " in the ordinary acceptation of the term, and not as being used in contradistinction to " moral fraud " {I). " I do not under- stand," sajrs Lord Bramwell, ' legal fraud.' To my mind it has no more meaning than legal heat, or legal cold, legal light, or legal shade. There never can be a well-founded complaint of legal fraud, except where some duty is shewn and correlative right, and some violation of that duty and right. And where these exist it is much better that they should be stated and acted on, than that recourse should be had to a phrase illogical and unmeaning with the consequent uncertainty" {m). False repre- There may be cases where false misrepresentations would have ii™ nokgal ^o legal effect, as where a person leads another to believe that effect. he intends to make him his heir, and then leaves his property away from him. Though such conduct may inflict greater loss on the sufferer than almost any breach of contract, and may involve greater moral guilt than many common frauds, it involves no legal consequences («). EepreBontation It is now weU established that in order to enable a person to third parties. ~ (g) Horsfall v. Thomas, 30 L. J. Ex. Notwithstanding the emphatic language 322. of Lord Bramwell, above cited, it is (7i) Gautret v. Egcrton, L. E. C. P. at doubtful whether the distinction between p. 375. legal and moral fraud may be considered (i) Lee V. Jones, 34 L. J. C. P. per as finally abolished. In the recent case Crompton, J., at p. 141. of Redgrave y. Ilurd, 20 Ch. D. 1, Jessel, (Jc) HaycroftY. Creasy, 2 East. 103; M.R., in the course of his judgment, Oomfoot V. Fowke, 6 M. & W. 358, per makes some observations which seem Ld. Abinger, C. B. clearly to indicate that in his mind the {I) Joliffe V. Baker, 11 Q. B. D. 265; distinction still existed. See notes to Pq»- see however judgment of Ld. Denman, ley v. Freeman, 2 Smith, L. C. (8th ed.). C.J., in Fuller v. Wilson, 3 Q. B. 58. (m) Alderson v. Maddison, 5 Ex, D. at (m) Weir v. Bell, 3 Ex. D. at p. 243. p. 296. FBAUD AND MISREPRESENTATION. 253 injured hj a false misrepresentation to sue for damages, it is not Chap, XI. necessarj' that the representation should be made to the plaintiff directly ; it is sufficient if the representation is made to a third person to be communicated to the plaintiff, or to be communicated to a class of persons of whom the plaintiff is one, or even if it is made to the public generally, with a view to its being acted upon, and the plaintiff, as one of the public, acts on it, and suffers damage thereby (o). The law on this subject is thus stated by Pollock, C.B., " Generally a false and fraudulent statement must be made with a view to deceive the partj^ who makes the com- l^laint, or, at all events, to deceive the class to whom he may be supposed to belong, although he may not individually and particu- larly be intended. There must always be evidence that the person charged in the false statement and the fraudulent conduct, had in his contemplation the individual making the complaint, or, at all events, that the individual making the complaint must have been one of those whom he ought to have been aware he was injuring, or might injure by what he was doing " (jj). Thus, a gun had been sold by the defendant to the plaintiff 's father for the purpose of being used by himself and son, with an accompanying representation that the gun might safely be used ; that representation was false to the defendant's know- ledge. The plaintiff, however, acting upon the faith of its being true, used the gun, and received damage thereby; it was held that he was entitled to recover compensation for the injury from the defendant (q) . When the representation is made concerning something which Eepresenta- .,/■■• 1-1 ■ r, • tions merely is mere matter of opmion, which every man can exercise his own expressions of judgment upon, and inquire into, it is the plaintiff's own fault, opinion. if he suffers himself to be deceived, and no action will lie against the person making the representation (r). A statement or representation, false in fact, but not known to Unintentional be so by the party making it, but, on the contrary, made honestly, ^°^P*'°°- and in the full belief that it is true, is not independently of any duty actionable (s), for, if every untrue statement which produces damage to another would found an action at law, a man might sue (o) Swift V. Winterhotlom, L. R. 8 Q. on this case per Brett, M. R. , Heamn v. B 244. Pender, 11 Q. B. D. at p. 511. ' (p) Bedford v. Bagshaw, 29 L. J. Ex. (r) Childcrs v. Wooler, 2 E. & B. 287 ; at p. 65. 29 L. J. Q. B. 129. (q) Langridge v. Levy, 2 M. & "W. (s) Collins v. Evans, 5 Q. B. 805 ; 13 530 ; 4 M. & "W. 337 ; see observations L. J. Q. B. 180 (Ex. Ch. ) ; BaiUij v. 251 A TREATISE ON TORTS. Chap. XI. Intent to diCL'ive. Limits of responsibility for frtlsc repre- sentation. his neighbour for any mode of communicating erroneous informa- tion, such (for example), as having a conspicuous clock too slow, whereby the plaintifi was induced to neglect some important duty (i). No action can be maintained for a false misrepresentation unless there is an intent . Jeceive ; a bare, naked lie, i.e., saying a thing which is false, knowing or not knowing it to be so, and without any design to impose upon or cheat another, and without any intention that another should rely upon the false statement and act upon it, will not support an action (w). " It is settled law," observes Parke, B., " that independently of dilty, no action will lie for a misrepre- seiitation, Unless the party making it knows it to be untrue, and makes it with a fraudulent intention to induce another to act on the strengtli of it, and alter his position to his damage " (x). The principles by which, in the administration of justice, the limits of responsibility for the consequences of a false representa- tion are to be ascertained, are these : first, every man must be held responsible for the consequences of a false representation made by him to another, upon which that other acts, and so acting, is injured or damnified ; secondly, every man must be held responsible for tlie consequences of a false reptefeentation made by him to another, Upon which a third person acts, and so acting is injured or damnified; provided it appears that such false representation was made with the direct intent that it should be acted on by such third person in the manner that occasions the injury or loss ; and thirdly, but to bring it within the second principle, the injury must be the immediate and not the remote consequence of the representation thus made (y). Wliere a party makes false representation to another for a fraudulent pui-pose, with the intent to induce the latter to do an act which lie afterwards does to his prejudice, an action for deceit lies, and it is not necessary to show also that the defendant knew the representation to be untrue, if he communicated it for a deceitful purpose. The representation mttst, however, be fraudu- lently made. Thus ■n^here directors of a banking company published a report representing the flourishing state of the bank, which was calculated to induce parties to purchase shares, such representation being false, but not false within the knowledge of Walford, 9 Q. B. 208 ; MwUngs v. Bell, 1 C. B. 951 ; Ormrod v. Huih, U M. & W. 651 (Ex. Ch.) (t) Bailey v. Walford, 9 Q. B. 208. (m) Belm V. Kemble, 7 C. B. N. S. 260. {x) Thorn v. Bigland, 8 Ex. 731 ; Murray v. Mann, 2 Ex. 538. {y) Barry Y. Croskey, 2 Johns, & H. 21, FEAUD AND MLSlUiPRESENTATION. 255 the directors, who published it without any intention to deceive ; it Chap. XI. was held that they were not liable for loss sustained by the purchase, and retention of the shares on the faith of the report, although they had been guilty of gross negligence in publishing it (.:). The making of a representation which a party knows to be untrue, and which is intended to, or is calculated from the mode in which it is made, to induce another to act upon it, so that he may incur damage, is a fraud in law. It is not necessary to prove that the person making such false represen- tation was actuated by a corrupt motive of gain to himself, or malice against the one sustaining damage, in order to maintain an action. Thus a bill was presented for acceptance at the ofSce of the drawee when he was absent. The defendant who lived in the same house with the drawee, being assured by one of the payees that the bill was perfectly regular, was induced to write on the bill an acceptance, as by the procuration of the drawee, believing that the acceptance would be sanctioned, and the bill paid by the latter. The bill was dishonoured when due, and the indorsee brought an action against the drawee, and on proof of the above facts was nonsuited. The indorsee then sued the defendant for falsely, fraudulently, and deceitfuUj', represent- ing that he was authorised to accept by procuration ; and on the trial the jury negatived all fraud in fact. It was held that not- withstanding the defendant was liable, because he must be con- sidered as having intended to make such representation to all who received the bill in the course of its circulation (a). A person cannot be made liable for making a misrepresentation Misrepresenta- unless it is a misrepresentation in point of fact, and not merely j^" "j^^ ^f ^^^^ in point of law. " I think anybody," observes Melhsh, L.J., not actionable. " would be startled if it was said that if you asked somebody what was the law upon a particular point, and he gave you his opinion as to what the law was, and you acted upon it and altered your position, a bill could be maintained against him to make good the representation, if his opinion turned out wrong" (b). Thus the plaintiff alleged, that being desirous of advancing money on debentures, he applied to a secretary of a railway company, who wrote offering him a bond of the company (z) Taylor v. AsUon, U M. & W. 24 L, J. C. P. 36. 401 ; 12 L. J. Ex. 363. (6) Beaitie v. Ld. Ebury, L. E. 7 Ch. (a) Polhill V. Walter, 3' B. & Ad. App. at p. 802. 114 ; Milne v. Marwood, 15 C. B. 778 ; 256 A TREATISE ON TORTS. Chap, XI. Time when misrepresenta- tion made. Estoppel. Responsibility of agent for fraud. Responsibility of principal for fraud of agent. for £1,500, and stating that the company was not yet in a position to issue permanent debentures ; but that they expected to be able to do so in four or five months time. With the letter was sent a prospectus, from which it appeared that the company was incor- porated by Act of Parliament, and that three persons named were directors. Plaintiff advanced the money and received in return a Lloyd's bond, signed by the secretary, whereby the company purported to acknowledge the debt, and to covenant to pay the same with interest at six per cent. The company having ceased to pay interest and being in difficulties, plaintiff filed a bill against two of the three directors, and the representatives of a third, praying that they might be decreed to pay the amount advanced by the plaintiff, with interest. It was held that the principle of relief on the ground of misrepresentation by third persons did not extend to an incorrect statement of a matter of law, and therefore, that the plaintiff could not succeed (c). Representations inducing a person to enter into a particular contract, though not made at the moment the contract is actually entered into, if fraudulently made, constitute a dolus dans locum contractui (d). If a person misrepresents a fact, to that fact he is bound, if another, misled by such misrepresentation, acts upon it, and thereby suffers damage (e) ; but this doctrine of estoppel is applicable only to some state of facts alleged to be at the time actually in existence, and not to promises in future, which, if binding at all, must be binding as contracts (/). All persons directly concerned in the commission of a fraud are to be treated as principals, no party can be permitted to excuse himself on the ground that he acted as the agent or servant of another (gr). Thus, the manager of a banking company is responsible for a false representation as to the solvency of a customer, although such representation is made by him in the course of conducting the business of the bank (li). A principal is liable for the fraudulent misrepresentation of his agent, acting in the course of his business (i) ; and a master is (c) Mashdall v. Ford, L. R. 2 Eq. 750. {d) Smith V. Kay, 7 H. L. Gas. 750. (e) Beattie v. Ld. Ebury, L. R. 7 H. L. 104 ; 44 L. J. Ch. 20. (/) Per Earl of Selborne, L.C., Maddi- son V. Alderson, 8 App. Gas. at p. 473. {g) Per Ld. Westbury, Cullen v. Thompson's Trustees, 4 Macq. H. L. Gas. 441 ; 6 L. T. 870. {h) Swift V. Winterhottom, L. R. 8 Q. B. 244. (i) Barwick v. English Joint Stock Bank, L. R. 2 Ex. 259 ; 36 L. J. Ex. 147 (Ex. Gh.) PRAITD AND MISREPRESENTATION. 257 answerable for every such wrong of his servant or of his agent Chap. XI. as is committed in the course of the service and for the master's benefit, thongh no express command or privitj^ of the muster is proved ; and there is no distinction between the case of fraud and the case of any other wrong (A). Thus, an officer of a banking corporation, whose duty it was to obtain tlie accept- ance of bills of exchange in which the bank was interested, fraudulently, but without the knowledge of the president or directors of the bank, made a representation to the plaintiff, which, by omitting a material fact, misled him, and induced him to accept a bill in which the bank was interested, and he was compelled to pay the bill. It was held that the plaintiff could recover from the bank the amount so paid (l). "It is seldom possible," observes Sir Montague Smith, "to prove that the fraudulent act complained of was committed by the express authoritj' of the principal, or that he gave his agent general authoritj^ to commit wrongs or frauds. Indeed, it may be generally assumed that, in mercantile transactions, princijDals do not authorise their agents to act wrongfullj', and consequently the frauds are beyond ' the scope of the agent's authority,' in the narrowest sense of which the expression admits. But so narrow a sense would have the effect of enabling principals largelj^ to avail themselves of the frauds of their agents, without suffering losses or incurring liabilities on account of them, and would be opposed as much to justice as to authority. A wider construc- tion, however, has been put upon the words. Principals have been held liable for frauds, when it has not been proved that they authorised the particular fraud complained of, or gave a general authority to commit frauds. At the same time it is not easy to define with precision the extent to which this liability has been carried (vi) . In a case which was decided many years ago in the Court of Exchequer (n), the majority of the judges held that a contract made by an agent on behalf of his principal, and into which the contractee was induced to enter by a representation, which, though false within the knowledge of the principal, was not so (k) Mackayv. Commercial Bank of N. iV. Brunsvnck, at p. 411. See as to the Brunswick, L. R. 5 P. C. 394 ; 43 L. J. liability of company for forged certificate P. 0. 31. issued by their secretary, Shaw v. Port {I) Mackay v. Commercial Bank of Phillip Gold Mining Co., 13 Q. B. D. N. Brunswick, supra. 103. (to) Mackay v. Commercial Bank of (n) Cornfoot v. Fowke, 6 M. & W. 358. S 258 A TREATISE ON TORTS. Chap. XI. Adoption of misrepresenta- tion by principal. within that of the agent, was not void on the ground of fraud ; for it was said that there was no fraud in the agent, since he thought he was telling the truth, nor in the principal, since he did not make the representation. The facts of the case were as follows: — The plaintiff (the owner of a ready furnished hoiise), had employed an agent to let it for him, and the agent had let it to the defendant. The adjoining house was used as a brothel, and this fact was known to the plaintiff, hut not to the agent. Before the agreement to take the house was signed by the defendant, he had asked the agent whether there was any objection to the house, and he had answered that there was not. The action was brought against the defendant for the non-performance of his agreement, and he pleaded that he had been induced to enter into the contract by the fraud of the plaintiff. It has been much discussed whether an unti'ue, but innocent statement by an agent, when coupled with a knowledge in the principal, would support an action for deceit against the princijDal. The doctrine promulgated by the majority of the Court in the much canvassed case of Cornfoot v. Foicke (o), that the fraud and the statement should proceed from the same person, is still much doubted, and may hereafter be held to be unsound law (jj). Where the principal has adopted and taken the benefit of the fraudulent representation of his agent he is responsible, though such representation was made without his knowledge or authority (s). Where fraud has been committed, and a third person is concerned who was ignorant of the fraud, such third person is innocent of the fraud only so long as he does not insist upon deriving any benefit from it ; but when' once he takes the benefit he becomes a party to the fraud. The rule is well laid down by Wilde, B., in his judgment in Udell V. Atherton (u), when he says, " This was an action of deceit. (o) 6 M. & W. 358 ; 9 L. J. Ex. 297. {p) See National Exchange Co. of Glasgow v. Drew, 2 Macq. (H. L.) 103, observations of Ld. Cranworth, L.C., and Ld. St. Leonards ; Barwick v. English Joint Stock Bank, L. R. 2 Ex. 259, where Willes, J., in delivering judgment of the Court says, " 1 should be soiTy to have it supposed that Cornfoot v. Fowke turned upon anything but a point of pleading. In. Fuller Y. I-Fifeow, 3 Q. B. 58, Cornfoot v. Eowke was dissented from. (s) New Brunswick S Canada Mail. Co. V. Conybeare, 9 H. L. Cas. 711 ; 31 L. J. Ch. 297 ; Sunre v. Francis, L. R. 3 App. Cas. 106 ; 47 L. J. P. C. 18 ; Udell V. AtJiertm., 7 H. & N. 181 ; 30 L. J. Ex. 337 ; judgment of Pollock, C.B., and Wilde, B. iu] 30 L. J. Ex. at p. 338. FKArn AXD MI,SnKPRE,SENTATION. 259 The case Avas tried before Baron ]\rai-tin, who will state the facts Chap. XI, more fully ; but the short result of them was, that the plaintift' bought of the defendants' agent a log of mahoganj' ; that he was induced to do so by certain statements of the agent, Avhich were false to his own knowledge, dishonest and fraudulent. He has paid the defendants' the price so obtained, which is twice the real value of the log, and he brings his action accordinglj". The question is thus raised, whether a principal who has had the benefit of a conti'act made by his agent, is responsible for a deliberate fraud committed by his agent in the making of the con- tract, by •which fraud alone the contract was obtained. I sa^- ' responsible ' generally because I aui not aware that, if this action of deceit does not lie against the principal, any other form of action will. If this be so, the consequences appear to be as follows : — The man who has reaped the benefit of a fraud com- mitted on his behalf keeps the fruits in his pocket. The man defrauded in the contract has to look to the intermediate person, and not him with whom he contracted. If the agent is a man of no means, this remedy would be fruitless. If the agent is liable to pa}', he does so without remedy over, and the person defrauded is reinstated out of the funds of one man, while the fruits of the fraud are retained by another. These results make it desirable to examine closely the principles upon which such a decision is to be supported. It is said that a man who is himself innocent can- not be sued for a deceit in which he took no part ; and this Avhether the deceit was bj' his agent or a stranger. To this, as a general proposition, I agree. All deceits and frauds practised by jjersons who stand in the relation of agents, general or particular, do not fall upon their j^rincipals. For, unless the fraud itself falls within the actual or implied authority of the agent, it is not necessarily the fraud of the principal. On this i^rinciple it was that the Court of Common Pleas, in Grant v. Noru-((ij (n), held a shipowner not resi^onsible for the fraud of the captain in signing bills of lading without any goods on board ; and in the case of Coleman v, EiclLes (v), a wharfinger was held not liable for a false receipt which his agent had given, representing that goods had been received at the wharf which had not in fact been so received. In neither of these cases did the principal authorize, or in any way adopt or obtain, the benefit of the fraudulent act. But does (u) 10 C. B. 665 ; 20 L. J. C. P. 93. {v) 24 L. J. 0. P. 125 ; 16 C. B. 104. s 2 360 A TEEATISE ON TORTS. Chap, XI. this principle apply to fraud committed in the making of contracts which the principal has adopted, and of which he has claimed and obtained the benefit ? The contract is made by the agent for the principal. But when made, if authorised or adopted, it becomes in law the contract of the principal. Can the principal treat the contract as his, and repudiate the fraud upon which it was built as the agent's ? In making of the actual contract, when the agent speaks, he does so with the voice of the principal ; for it is the principal's contract he is making. In the representations which immediately preceded the contract, is the agent speaking only for himself ? If so, on what principle is it that the principal could not sue upon a contract in itself valid, but preceded and brought about by fraudulent representations of the agent ? — and yet this is the plain law. This brings me to another difficulty. For it would surely be an anomalous state of things, that the innocent principal could not recover upon his contract, because fraudulently obtained by his agent, but that, if before the dis- covery the contract be performed, lie may ever after keep the benefit of it. Can the buyer's right upon any sound principle be made to depend on the extent to which the transaction has been completed ? If the fraud had been discovered before the log was cut, could not the buyer have rescinded the contract ? If so, why may he not recover now, when the state of things is unaltered by any laches or default of his ? A distinction has, indeed, been made in equity between contracts performed and unperformed. The latter are sometimes set aside for mistake or surprise, while the former are not. But no such distinction has ever been made in favour of fraud. Fraud in all Courts, and at all stages of the transaction, has, I believe, been held to vitiate all to which it attaches " (x). Innocent mis- Where the principal reaps a benefit through the misrepresenta- representation ^^q^ ^f jj^g agent, though made innocently, he is liable to an of agent. . . . . action for deceit if the article is purchased at an enhanced value the consequence of such representation. Thus, an owner of a house employed an agent to sell it. The agent described it as being free from rates and taxes, and did not know it to be otherwise ; but it was in fact liable to certain rates and taxes as the owner knew. On the faith of the agent's de- scription a party bought the house. It was held that he might {x) See Willis v. Martin, 4 T. E. 39. FRAUD AND MISREPEE«ENTAT10N. 261 maintain an action for deceit against the owner of the house, though it did not appear that he had instructed his agent to make any represention as to rates or taxes {y). A party who makes a contract as agent thereby warrants that he has authority as agent to make the contract ; and if he has no such authority, he is liable for the damages necessarily occasioned by a breach of his warranter, although he acted bondjide under a mistaken behef that he had authority as agent to make the con- tract {z). Where however an agent acts within the scope of his authority, he is not personally liable for an innocent misrepresen- tation (a). If an agent sells goods with full knowledge that he has no right to sell, and conceals that fact from the buj'er, he is liable to the latter for the deceit, although before action brought he has paid over the price (6). As a general rule one agent is not responsible for the fraudulent acts of the other, unless he does something which makes himself a princijpal in the fraud (c). Where a false representation is made by the wife, whilst acting as agent for her husband, the husband is responsible as prin- cipal. Thus, where a tradesman being desirous of selling his business, allowed his wife to act as his agent for the sale, and in the course of the negotiations she made a false representa- tion to the purchaser as to the profits of the business, it was held that the husband was liable to an action for deceit at the suit of the purchaser (d). Before the passing of the Married Women's Property Act, 1882 (e), it was held that no action would lie against a husband and wife for a fraudulent representation made by the wife that she was feme sole, by which she induced the plaintiffs to advance monej- to a third person, and to accept her as surety, because the fraud was directly connected with the contract made by the wife (/). Now, however by s. 1 sub. s. 2 of the above Act, a married woman who commits a fraud in connection with a contract, or who Chap. XI. Liability of agent. Misrepresenta- tion by wife. Effect of the Married Women's Property Act, 1882. (j/) Fuller V. TFilson, 3 Q. B. 58 (Ex. Ch.) {z) Collin V. Wright, 8 E, & B. 617 ; 27 L. J. Q. B. 215 (Ex. Ch.); Clicrry v. Colonial Bank of Atcstralasia, 38 L. J. P. C. 49; Mandellv. Trimcii, 18 C. B. 786 ; 25 L. J. C. P. 307. (a) Eaglesfield v. Marq. of London- derry, H. L, 26 W. R. 540, affirming 4 Ch. D. 693. (i) Pcto V. Blades, 5 Taunt. 657. {c) Carqill V. Bower, 10 Ch. D. 502 ; 47 L. J. (Jh. 649. (d) Taylor v. Green, 8 C. & P. 316. (e) 45 & 46 Vict. c. 75. (/) Liverpool Acleljihi Loan Associa- tion V. Fairhunt, 9 Ex. 422 ; 23 L. J. Ex. 163. 262 A 'fEEATISE ON TOETTS. Chap. XI. obtains credit by false representation, -will be liable to the extent of her separate property. In a case {g) where an action was brought against a husband and wife upon a fraudulent representation by the wife that her husband had accepted a bill of exchange, whereby the plaintiffs were induced to discount it, the Court were equally divided as to whether an action would lie. Erie, C.J., and Byles, J., holding that the misrepresentation partook so much of the nature of a contract as not to constitute a cause of action against the husband and wife, whilst WiUiams and Willes, JJ., held that an action would lie, as the fraudulent representation was not shewn to have been con- nected with any contract with the wife. This decision was also given before the passing of the Married Women's Property Act, 1882, and undoubtedly the wife would now be liable to the extent of her separate property, but assuming that the wife had none, which must frequently be the case, it is doubtful whether the husband could be held liable for her misrepresentation. Fraud l.y The plea of infancy is a good defence to an action for fraudu- lent representation and deceit, whereby one is induced to enter into a contract with the infant. Thus it has been held that an infant is not responsible for falsely affirming goods to be his own goods and that he had the right to sell them, and thereby in- ducing the plaintiff to purchase them {h). Nor for a false and fraudulent representation that he was of full age, whereby the plaintiff was induced to lend him a sum of money (i). The doctrine as to the non-liability of an infant for a false representa- tion appears to be founded upon the law as laid down by Lord Kenyon, C.J., in Jennings v. Randall (j), where he says " The law of England has very wisely protected infants against their liability in cases of contract * * * * if it were in the power of a plaintiff to convert that which arises out of a contract into a tort, there would be an end of that protection which the law affords to infants " (k). (g) Wright -V. Leonard, H C. B. N. law, though Crompton and Mellor, JJ., S. 258 ; 30 L. J. C. P. 365. ^ appeared to think that the plaintiff (A) Groi'e v. Nevil, 1 Keb. 778. might have had some relief in equity. ((■) Johnson t. Pye, 1 Sid. 258 ; Bart~ Perhaps if this case had heeu decided Utt V. Wells, 31 L. J. Q. B. 57. In subsequent to the passing of the Judica- this case an equitable replication was ture Acts the result might have been pleaded, setting up the fraud of the in- different, fant as an answer to the plea of infancy. (j) 8 Term. Eep. 335. The Court held that this was a depar- (/() See Priee v. Heioctt, 8 Ex. 146 ture in pleading and was no answer at Green v. Grcenluck, 2 Marshall, 485, I'RAUD AND MISREPEESEKTATIOK. 203 In another case {/) \Yhich came before Lord Kenj-on, where an Chap. XI. action for money had and received was brought against an infant to recover money which the infant had embezzled, that learned judge said that infants were liable for actions ex delicto, though not ex contractu; and though the action was in form an action of the latter description, j-et it was ex delicto in point of substance, * * * and therefore infancy was no defence. If a contract made with the infant by means of the misrepresentation is not sub- stantially the cause of action, it is presumed an action would lie. Thus if A. an infant made a fraudulent representation to B. that C.'s horse was sound in wind and limb, whereby B. was induced to purchase the horse from C, could not B. maintain an action for deceit against A. on discovery that he had purchased an utterly worthless animal ? The maker of an article is not always bound to point out Fraudulent defects in it to the purchaser, but if there is a defect in it which tioa by maker is known to the maker and which cannot be seen on inspection, "* chattel. then he is bound to point it out, but if it be a defect which is patent and of which the purchaser is as good a judge as the maker, the maker is not bound to point out the defect to the purchaser. "It would be," observes Bramwell, B., "a very mischievous thing if it were so, because if he was bound to point out the defect he would be bound in safetjr to point out anything which could be considered a defect. We know the consequences of that. If the maker says, for prudence sake I point out so and so to you, but I do not think them defects, the purchaser would say ' Here is something wrong, and I must have an abatement made.' That would be a very inconvenient rule, which should have no existence * * * * it seems impossible to saj' that a man can be guiltj' of a fraud where the person for whom the article is made insj)ects it, and either does or does not point out the defect, and either takes it or rejects it as the case may be. If it would not be a fraud when he has inspected it, then is it a fraud that, having the opportunity of inspecting it, he does not do so '? That would be to make fraud, as clearly as anything ever was in the world, dependent upon his having the sense to examine the article and judge for himself, instead of taking it without looking at it " (m). (I) Bristow V. Eastman, I Esp. 172. (to) Sorsfall v. Thomas, 31 L, J. Ex. at p. 328. 264 A TREATISE ON TORTS, Chap. XI. Thus in an action by the drawers against the acceptor of a bill of exchange, the defendant pleaded (inter alia) that he had been induced to accept the bill by fraud. In support of this plea, evidence was given, that the bill was in part payment for a steel gun, which the plaintiffs had undertaken to make for the defen- dant, of certain agreed dimensions and quality, but in which there was a defect, such that had the defendant known of it he would have been justified in refusing to accept the gun ; that this defect was known to the plaintiffs, and had been artificially concealed by the insertion of a plug bj^ the plaintiffs' workmen, so as not to be apparent on inspection. It appeared that the defendant had had an opportunity of inspecting the gun before delivery but had not availed himself of it. The gun at first answered the purpose for which the plaintiffs wanted it, but ultimately burst and became worthless, as it was alleged, in consequence of the defect. It was held that there was no evidence in support of the plea of fraud (n). Vendor of The law as to concealment of defects by the vendor of a '^ ^ '^- chattel may be thus laid down. Where a specific article is Concealment of . defects. Ottered lor sale, without express warrant}"-, or without circum- Passive deceit, stances from which the law will imply a warranty — as where for instance an article is ordered for a specific purpose — and the buyer has full opportunity of inspecting and forming his own judgment, if he chooses to act on his own judgment, the rule caveat emptor applies (o). Mr. Justice Story in his work on contracts (p), states the law as to concealment as follows: "An improper concealment or suppression of a material fact, which the party concealing is legally bound to disclose, and of which the other party has a legal right to insist that he shall be informed, is fraudulent, and will invalidate a contract." Further dis- tinguishing between extrinsic circumstances affecting the value of the subject-matter of the sale, and the concealment of intrinsic circumstances appertaining to its native character and condition, Mr. Justice Story points out, that with reference to the latter, the rule is " that mere silence as to anything which the other party might by proper diligence have discovered, and which is open to his examination, is not fraudulent, unless a special trust or con- (?i) Horsfall v, Tlumias, 31 L. J. Ex. 597 ; see Ward v. Hobbs, 3 Q. B. D. 322. 150 (C. A.) (o) Smith V. Hughes, L. R. 6 Q. B, (^j) Vol. i. s. 518. FEAUD AND MISREPRESENTATION. 205 fidence exist between the parties, or can be implied from the Chap. XI. circumstances of the case " (q). It is only where a party is under some pledge or obligation to reveal facts to another that mere silence will be considered as a means of deception (?■). Thus, the defendant sent for sale in a public mai-ket pigs which he knew to be infected with a contagious disease ; they were exposed for sale subject to a condition that no warranty would be given and no compensation would be made in respect of any fault. No verbal representation was made by or on behalf of the defendant as to the condition of the pigs. The plaintiff having bought the pigs put them with other pigs, which became infected ; some of the pigs bought from the defendant and also some of those with which they were put, died of the contagious disease. The plaintiff having sued to recover damages for the loss which he had sustained, it was held that, although the defendant might have been guilty of an offence against the Con- tagious Diseases (Animals) Act, 1869, he was not liable to the plaintiff, for that his conduct in exposing the pigs for sale in the market did not amount to a representation that they were free from disease (s). The vendor must in no case resort to anj' act or contrivance to Active deceit. conceal a defect, for if he does he will be answerable in damages in an action by the person deceived. " If I sell a horse that has lost an eye, no action lies against me for so doing ; but if I sell him with a false and counterfeit eye, there an action lieth " (t). So, where on the sale of a house, the seller being conscious of a defect in the main wall, plastered it up and papered it over, it was held that as the vendor had expressly concealed the defect, the pm-- chaser might recover damages in an action for deceit (»)• Where- ever the vendor puts a false appearance upon a defect which he knows of, and endeavours to conceal, for the purpose of inducing a person to purchase the article, he is guilty of a false representa- tion for which an action will lie (.«:)■ Thus, if the vendor of a glandered horse has resorted to any doctoring or contrivance for (q) S. 519. oculus la null action gist, autei-ment low (r) Benjamin on Sale of Personal il ad im counterfeit faux et bright eye," Property (1st ed.), p. 31.0. Southcriic v. //y»v, 2 Rolle, Eep. 5. (s) Ward\. Hobbs, 3 j Tamp. 154. see judgment of Brett, L.J., Ward v. (t) "Si jeo vend ohiyall que ad null Hohbs, supra, at p. 162. 266 A TREATISE OK TORTS. Chap. XI. Rule as to sale of horse. False vcprc- sentation to absent purchasers. In case of goods sold by sample. Representation by vendor, "when article wanted for specific purpose. Breach of warranty may be treated as deceit. the purpose of suppressing the marks of the disease, and has thereby deceived the purchaser, the latter will be entitled to recover all the damages he has sustained by the deception. With respect to the ordinary sale of a horse, where there is no warrantj"-, the rule of caveat emptor applies, and except there be a deceit, either by a fraudulent concealment or a fraudulent misrepresenta- tion, no action for unsoundness lies by the purchaser against the vendor of the animal (y). "Where the purchaser has no opportunity of inspecting the article he buys, the rule of caveat emptor does not apply. Every representation therefore made to an absent purchaser, as to the quality of an article he offers for sale, amounts to a warranty of the fact to such absent purchaser, who has no means of judging for himself, but relies exclusively on the judgment and good faith of the vendor {z). And " a seller," observes Lord Ellenborough, " is unquestionably liable to an action for deceit, if he fraudu- lently misrepresent the quality of the thing sold to be other than it is, in some particulars which the buyer has not equal means of knowing " (a). So also an action can be maintained for fraud in selling goods \iy a false representation that they corresponded with samples shown (&). If a person goes into a shop and tells the shopkeeper that he wants an article for a specific purpose, and it is the clear under- standing of the parties that the purchaser relies upon the skill and judgment of the shopkeeper for the supply of an article fit for the purpose specified, there is an implied warranty on the part of the shopkeeper that the article he furnishes is reasonably fit for that purpose (c). If, therefore, the article turns out to be unfit for the specific purpose for which it was intended, an action wiU lie for either a breach of warranty, or for a deceit practised upon the purchaser [d). Where the representation amounts to a warranty of the fact stated, and it is untrue, it is a deception in contemplation of law, whether there was knowledge or want of knowledge of the un- [y] Hill V. Balls, 27 L. J. Ex. ih ; 2 H. & N. 299. (z) Gardiner v. Gra-y, i Camp. 145 ; Wider V. Schilizzi, 25 L. J. C. P. 90. {a) Vernon y. Keys, 12 East, 637. (6) Ormrodv. Butli, 14 M. k W. 651; Russell V. Nicolopulo, 8 C. B. N. S. 362. (c) Brown v. Edgington, 2 M. & G. 279. (d) See Jones v. Bright, 5 Ring. 533 ; Langridge v. Levy, 2 M. & W. 519 ; Heaven v. Pender, 11 Q. B. D. 503 (C. A. ) ; and notes to Pasley y. Freeman, 2 Smith, L.C, l^RAUD AND MI.SREPEESENTATION. 26 1 truth on the part of the person making it. " If one man," observes Chap. XI. Lord Ellenborough, " lull another into security as to the goodness of a commodity he offers for sale, bj'' giving him a warranty for it, it is the same thing whether or not the seller knew it at the time to be unfit for sale : the warranty is the thing which deceives the buyer who relies on it, and is thereby put off his guard, and it is sirfiicient to prove the warranty notice to establish the deceit " (e). If, therefore, a watchmaker warrants a watch to go well, or a horse dealer warrants his horse to be sound and (|uiet and free from vice, and a purchaser buys on the faith of the warranty, and then finds that the watch will not go, or that the horse is unsound nor vicious, this is a deceit, though neither the watcli- maker or the horsedealer was aware of the fact at the time he gave the warranty (/) . Although a warranty will not bind a man in a thing that is aj)parent, as to warrant that a horse has both his ej'es, when he is manifestly blind of one of them, j-et a pm'chaser who relies on a warranty is not bound to make au)' particular examination of the horse before he buys, to ascertain whether a defect exists. If, relying on the warranty, he makes no particular examination of the animal, and fails consequently to discover a defect, which might have been discovered b}' examination, he is nevertheless entitled to maintain an action for deceit ((/). A sale of a chattel " with all faults," does not mean that the Fraudulent purchaser is to take it with all frauds. Such a stipulation, there- "with all fore, will not protect the vendor from an action for deceit, if ho has resorted to any artifice to conceal a defect, or has made use of any false representation for the purpose of lulling to sleep the vigilance of the purchaser. Therefore, where a ship was sold to be taken as she lay with all faults, and it was proved that the vendor had used means to prevent purchasers from discovering certain defects in the vessel, and had also knowing^ made a false representation of her condition at the time of the sale, it was held by Mansfield, C. -J., that although the words "to be taken with all faults " were very large and framed expressly to exclude the buyer from calling upon the seller for any defect in the thing sold ; yet, if the seller was guilty of any positive fraud in the sale. faults.' (e) TJ'iUia'iitsoii v. Allison, 2 East, see Miirfjrl.sini v. Wright, 7 Bing. 603. 450. ((/) itohjiiaij V. Mnrijiiii, 1 EI. & EI. 1, (/) Ekins v. Trcslmm, 1 Lev. 102 ; 268 A TREATISE ON TOETS. Chap. XI. either by making a false representation or using means to conceal a defect, the seller would be answerable in damages to the buyer for the deceit (Ji). Where the vendor of a vessel which was to be taken " with all faults " represented the vessel in his handbills and advertisements of the sale to have been built in 1816, whereas she had been launched the year before, and the difference of time materially affected her value, it was held that the purchaser was entitled to recover damages for the deceit, notwithstanding the stipulation that the vessel was to be taken " with all faults," (i). " The meaning of selling with all faults," observes Heath, J. "is that the purchaser shall make use of his eyes and understanding to discover what faults there are, but I admit that the vendor is not to make use of any fraud or practice to conceal a defect " (k). A stipulation that the thing sold is to be taken "with all faults," and without allowance for any defect, error or mis- description, will protect the vendor from all unintentional mis- takes, misstatements, and misdescription, but not from the conse- quences of any wilful deception (l). Fraudulent Where a person makes a representation to the public by means of an advertisement, and one of the public deals with him on the faith of such representation, the advertiser is responsible for the hond fide character of the advertisement. Thus the defendant, a money lender, issued an advertisement, headed "Money on Easy Terms," and containing a statement that money would be advanced on note of hand to, among others, farmers, on easy terms and on reversion, &c. at 5 per cent., no other rate of interest was mentioned in the advertise- ment. The plaintiff, a farmer, having seen the advertisement, went to the defendants' office, and aj)plied for a loan of £100. He swore that the defendants' agent then told him he could have it at 5 per cent., and after negotiations agreed to take 4J per cent, and that he executed a bill of sale, as he believed, to secure £100 with interest at 4^ per cent, by weekly instalments. The bill of sale was in fact a security for the repayment of £150, by weekly instalments of £2 10s. It was held, in an action to set aside the bill of sale, that where a man represents to the public (h) Schneider v. Heath, 3 Camp. 507. 784. (i) Fletcher v. Bowsher, 2 Stark. 56fi. (I) See Taylur v. lluller, 5 Ex. 77£ (k) Pickering v. Dmmon, i Taunt. 20 L. J. Ex. 21. adTertisement. FRAUD AND MISREPRESENTATION. 269 by advertisement that he will lend money on easy terms, and Chap. XI. afterwards lends it on very hard terms, the onus lies upon him to shew that he has removed from a borrower's mind the impression produced by sueh representation, and clearly explained to him the terms on which the loan had been made. On the evidence, the Court believed the plaintiff's statement, and set aside the bill of sale (>»). So in a case where a person issued an advertisement, which falsely represented that he had power to let a farm, it was held tliat all persons who were likely to take a farm, or might reason- ably contemplate taking a farm, acting upon that advertisement, and incurring expense in consequence of that false representation, had a right of action for deceit against the advertiser (/(). Every one who conceals in boxes or packages articles known Fraudulent by him to be of a dangerous nature, and delivers them to another <=™°'=^™™t "^ -' ° ' dangerous to be warehoused or carried without notice to the bailee of such nature of goods being dangerous, is guilty of a tortious act, for which he is deiifered to responsible, unless the bailee knew of the dangerous nature of carriers, &c. the articles, and the danger and risk attendant upon the receiving and dealing with them (o). Where the vendor makes a false representation as to the value Misrepresenta- of a business, he is responsible to the purchaser. Thus, where of'ha^ne'ss^ "* the vendor of a public-house fraudulentlj' niisrej)resents the amount of business done in it, whereby the jjlaintiff is induced to buy the house, an action for deceit will lie, although such statement was not contained in the conveyance or memorandum of the bargain (p). If the false representations are made with respect to the business of a third party, and the plaintiff acting upon and induced by such representations, purchases the business, the person making them is liable to an action for deceit at the suit of the purchaser (q). In an action for fraudulent misrepresentation, the plaintiff ma}'' Damages , n ■• i-i-iij-j_ 1 ,1 recoverable recover damages tor an injury which is the direct and natural i^ action for consequence of his acting on the faith of the defendant's false represen- (m) Moorhouse v. Woolfe, 46 L. T. P. 139 ; Brass v, Mailland, 6 E. & B. 374. 486. (») Richardson v. Silvester, L. K. 9 Q. (p) Rolls v. Davis, 28 L. J. Ex. 287 ; B. 34. 4 H. & N. 484. (o) Hutchinson v. Guion, 5 C. B. N. S. (q) Riclianlson v. Dunn, 30 L. J. C. 149 ■ 28 L. J. C. P. 63 ; Farrant v. P. 44 ; 8 C. B. N. S. 655. Bar'nes, 11 C. B, N. S. 553 ; 31 L. J. C. 270 A TREATISE Oh TORTS Chap. XI. representations. Thus, where a dealer sold a cow to the l^laintiff, and fraudulently represented that it was free from infectious disease, when he knew that it was not, and the plaintiff having placed the cow with five others, they caught the disease and died, it was held that he was entitled to recover as damages the value of all the cows (r). juisrepresenta- An action lies for making a false and fraudulent representation crediroUhird °^ ^^^ character or solvency of another (under circumstances from person. which it may be assumed that the party making the representa- tion intended it to be acted upon), whereby the plaintiff has been induced to give him credit, and has suffered loss(s). Representation By Lord Tenterden's Act (9 Geo. 4, c. 14, s. 6), it is enacted writin»''hy9 ^^^^^ ^° actioii shall be brought whereby to charge any person Geo. IV. c. li, 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 money or goods upon, unless such representation or assurance be made in writing, signed by the partj' to be charged therewith " (t). Representation A representation partly written and partly verbal is sufficient, partly verbal, if ^^^ Written part formed a material part of the representa- tion (u). Signature by In order to maintain an action, the false representation must be render ' °^^ "" signed by the person making it, and not by an agent. Thus, the principal plaintiff was a customer of the S. bank, and requested the manager of that bank to inquire for him as to E.'s credit. The manager wrote a letter addressed to the manager of the defendant's banking company, requesting information as to whether E. was responsible to the extent of 5650,000. The defendant G. rej)lied in his own name, signing the letter as manager, and giving a favourable account of E.'s responsibility. The plaintiff, in consequence of this letter, supplied E. with goods, for which he was not paid in consequence of E.'s insolvency. The statement made by G. was false to his knowledge. The defendant's banking company had no knowledge, otherwise than through G., that such letter had been written ; but the writing of such a letter was an act done within the scope of the general (r) Mullett T. Mason, L. R. 1 0. P. (t) Saslop v. Fergusson, 7 A. & E. 86. 559 ; 35 L. J. C. P. 299. {u) Wade v. Tatton, 18 C. B. 371 ; 25 (s) PasUy T. Freeman, 3 T. R. 61 ; L. J. C. P. 240 ; see Olarke v. Dickson, Corbett V. JSrown, 8 Bing. 33. 28 L. J, C. P. 225. FKAUD AND MTSRKPKKSENTATION. 271 authority conferred upon G. as manager. It was held that, Chap. XI. aMiough G. was iDersonally liable for the false representation, yet that the hanking company were not, as the signature of G. could not be considered the signature of the company within the 9 Geo. 4, c. 14 (r). A representation by a party as to the credit of a firm, of whicli ^^'•"i'' I'^^i"'^- he is a member, is a representation as to the credit of "another -within the person " within the statute. It is not the less a representation ^^^^^^^<^- of the solvency of the other partners, that it includes himself (a"). Any representation that a person may be trusted, is a represen- tation as to his ability within the statute. Thus, a representa- tion by the defendant that money might be safely lent to A., because the title deeds to an estate, which belonged to A., were in the defendant's possession, and that nothing could be clone without his knowledge, and that the plaintiif would be safe in making the loan, is a representation within the statute 0/). Where a false and fraudulent representation has been made Where other ... ■ ii 1 i Ti_ n ±1 ■ r circumstances m writing concerning tlie character or credit o± a third person, concurred in to the intent that such third person may obtain credit, and he i"^^^"=i°g "'^J't ..,,,. ■ . to be given. does obtain credit, an action will lie against the person making the misrepresentation at the suit of the person injured, although there may have been other circumstances which concurred in inducing such credit, if the representation substantially and mainly conduced to the obtaining of the credit (z). Although the person making the false representation had no Where no in- intention to deceive, he may be held answerable in damages for ceirrVaMity the misrepresentation. Thus, the plaintiff, who was about to may yet attach. grant a lease to A., wrote to the defendant, who was named by I^<'.f'^™°<=« as to ... . ■' ability of A. as a referee: " A. is desu'ous of leasing premises from us of tenant. about the annual value of i;400, and we will be glad if you Avill say if you know him to be in a good and responsible position to meet the responsibility of such an undertaking, and if you can recommend him as a safe and advisable tenant," The defendant answered, " I have much pleasure in replying- affirmatively." On this A. was accepted as tenant, but afterwards deserted (v) Swift V. Jeushury, L. R. 9 Q. B. Barnard, 7 JI. & W. 101 ; cases as to 301 (Ex. Ch.) representations of the credit of parties (x) Dcvaux V. Steinkdler, 6 Biiig. N. decided before the passing of Lord Ten- Q 84 terden's Act. \y) Simn V. Phillips, 8 A. & E. 457; (?) Wada v. Tatton, 18 C. B. 371 ; 25 see Thompson v. Bond, 1 Camp. 4 ; Ash- L. J C. P. 240. Un V. White, Holt, 387 ; Lyde v. 272 A TREATISE ON TORTS. Chap. XI. Extent of damages recoverable. the premises -without, paying any rent. The defendant, when he answered the reference, was well acquainted with the ante- cedents of B., and knew him to be a person of no substantial means, who had twice previously failed in businesses similar to that which he intended to carry on on the premises in question. The defendant, however, had no positive intention to deceive. It was held that the defendant was answerable to the plaintiff in damages for misrepresentation (ri). A person can only recover against a referee making a false representation, such damage as is justly and immediately refer- able to the false representation. Therefore if a tradesman gives an indiscreet and ill-judging credit, he cannot make the referee answerable for any loss occasioned by it (b). Fraud in pro- spectus. Section II. — Misrepresentation by dieectoes and officers of PUBLIC companies BY MEANS OF PROSPECTUS OR OTHERWISE. It has been laid down (c) that those who issue a prospectus holding out to the public the great advantages which will accrue to persons who will take shares in a proposed undertaking, and inviting them to takes shares on the faith of the representations therein contained, are bound to state everything with strict and scrupulous accuracy, and not only to abstain from stating as fact that which is not so, but to omit no one fact within their know- ledge the existence of which might in any degree affect the nature or extent or quality of the privileges and advantages which the prospectus holds out as inducements to take shares. This rule has, however, been somewhat modified by the decision of the House of Lords in the Central Railway Co. of Venezuela v. Kisch (d), where Lord Chelmsford, L.C., referring to certain alleged misrepresentations in a prospectus, observes, " In an advertisement of this description some allowance must always be made for the sanguine expectations of the promoters of the adven- ture, and no prudent man will accept the prospects which are always held out by the originators of every new scheme without (a) Leddell v. McDougal, 29 ^V. R.. 403 (C. A.); see Canham v. Barry, 15 C. B. 597 ; 24 L. J. C. P. 100. (ft) Corbett v. Brovm, 8 Ring. 35 ; 5 C. & P. 363. (c) By Kindersley, V.-C, in New Brunswick Rail. JJo. v. Muggeridge, 1 Dr. & Sm. 381. {d) L. R. 2 H. L. at p. 113 ; Ark- vrright v. Newbold, 49 L. J. Cli. 684. FRAUDULENT PROSPECTUS. 273 considerable abatement. But although on its introduction to the Chap. XI. public some high colouring (e), and even exaggeration, in the description of the advantages which are likely to be enjoyed bj' the subscribers to an undertaking, may be expected, yet no mis- statement or concealment ought to be permitted. In ray opinion, the public who are invited by a prospectus to join any new adventure ought to have the same opportunity of judging of every- thing which has a matei'ial bearing on its true character as the promoters themselves possess. It cannot be too frequently or too strongly impressed upon those who, having projected anj' under- taking, are desirous of obtaining the co-operation of persons who have no other information on the subject than that which they choose to convey, that the utmost candour and honesty ought to characterize their published statements." AVhere the defendant, an original promoter and managing director of a joint stock companj^, fraudulently pretended by means of a prospectus to guarantee to the bearers of shares a minimum annual dividend of ^633 per cent., to induce persons to purchase shares, and the plaintiff, by reason of this representation, purchased shares and lost his money, it was held that the defendant was responsible in damages to the plaintiff in an action for deceit (/). The case of Gerhard v. Bates, however, is no authority for holding that, upon a prospectus addressed to the public by the directors of a company, any one of the public who, at any time or under any cir- cumstances, has been led to take shares upon the faith of the repre- sentations thus i^ublished can maintain an action against them for deceit. There must be something to connect the directors making the representation with the party complaining that he has been deceived and injured by it ; as by selling a report containing the misrepresentations complained of to a person who afterwards purchases shares upon the faith of it (g) ; or by delivering the fraudulent prospectus to a person who thereupon becomes a pur- chaser of shares (h) ; or by making an allotment of shares to a person who has been induced by the prospectus to apply for such allotment. In all these cases the parties in one way or other are brought into direct communication ; and in an action the mis- representation would be properly alleged to have been made by (e) See Denton v. Macneil, L. R. 2 Eq. to the case of Bedford v. Bngslmw. 352. (h) A suggested case in Ocrh'ird v. (/) Gerhard v. Bates, 2 E. & B. 476. Bairs, supra, (g) ScoU V. Dixon, 29 L. J. Ex. 62, n. 274 A TREATISE ON TORTS. Chap. XI. the defendant to the plaintiff; but the purchaser of shares in the market upon the faith of a prospectus which he has not received from those who are answerable for" it, cannot by action upon it so connect himself with them as to render them liable to him for the misrepresentations contained in it, as if it had been addressed personally to himself (i). Thus a prospectus for an intended company was prepared by the projectors (the directors of the company), and issued by them to the public : it contained mis- representations of facts, facts known to those who issued it, and it also concealed the existence of a deed, which was material to be known, and which, if known, would, in all probability, have prevented the formation of the company. Being addressed to the whole public, any one might take up the prospectus, and appropriate to himself its representations, by applying for an allot- ment of shares. It was held that when the allotment was com- pleted, the office of the prospectus was exhausted, and that a person who had not become an allottee, but was only a subsequent purchaser of shares in the market, was not so connected with the prospectus as to render those who had issued it liable to indemnify him against the losses which he had suffered in consequence of his purchase (/c). An action for fraudulent misrepresentation will not lie against the directors of a company for statements contained in a prospectus unless it contains " some active misstatement of fact or, at all events, such a partial and fragmentary statement of fact, as that the withholding of that which is not stated makes that which is, absolutely false " {I). Thus, in February, 1865, a company was incorporated with a capital of £25,000 in 2,500 shares. The articles provided that the first directors should be determined by the subscribers to the memorandum of association, that the quali- fication of directors so appointed should be ten shares, and of future directors thirty shares, and that the promoter should receive dE2,500 for promotion money. In the same month a prospectus was issued, giving the names of certain persons of position, one of them of considerable local influence, as directors, and stating that " the directors and their friends have subscribed What consti- tutes misrepro sentation in prospectus. (i) Peelc V. Gurnet/, L. E.. 6 H. L. 377; overruling Seymour v. Bagshmo, 18 C. 15. 903 ; and Bedford v. Bagshaw, 4 H. & N. 538 ; 29 L. J. Ex. 59. {k) Peck V. Gtirney, supra. (I) Per Lord Cairns in Peek v. Gumey, L. R. 6 H. L. 377, 403 ; see post, p. 280, as to effect of 30 & 31 Vict. c. 131, s. 38. FRAUDULENT PROSPECTUS. 273 a large portion of the capital, and they now offer to the public the Chap. XI. remaining shares." The facts were that the directors had sub- scribed for, nominallj^ only ten shares each, and actually nothing, for the shares agreed to be allotted to them were fully paid-up shares, for which they paid, and were, by a private arrangement with the promoter, afterwards repaid out of the ^2,500. The number of shares taken by " friends " of the directors— treating that word as persons who became subscribers through their influ- ence — consisted only of 140, which were taken by one firm. The whole number of shares taken was 762, and agreed to be taken besides, 430. The plaintiff applied, on the faith of the above prospectus, for 50 shares, which were allotted to him, and paid for by him. The directors admitted that the prospectus was issued by their authority. It was held that the prospectus was a clear misi-epresentation, for which the directors were liable (m). Where a prospectus described a contract for the construction of a line of railway as entered into at " a price considerably within the available capital of the company," and the facts were that from the nominal capital of £500,000 were to be deducted £50,000 as the price of purchasing the concession to make the railway, and the contract price for making it was £420,000, the representation was held to be untrue and deceptive (n). If the directors of a company make assertions of facts as to which they are ignorant whether such assertions are true or untrue, they become, in a civil point of view, as I'esponsible as if they had asserted that which thej^ knew to be untrue. Thus, A. read a i^rospectus issued by the directors of a mining company, and on the faith of the representation (among others of a similar nature) there made, that a valuable mine in America had been .contracted for, the claims in which were described as A'ery profit- able, applied for shares. It turned out that the mine contracted for was valueless. It was held that the directors were liable for the misrepresentation in respect of the mine (o). If the name of a person is improperly placed on the list of direc- when names of tors in the prospectus of a company, it must depend upon the ^'rectors im- i- IT , . . . properly in- circumstances of the case whether it is a material misstatement (p). serted in pros- pectus. (to) Henderson v. Lacon, L. R. 5 Eq. J. Ch. 297. 249. (o) Reese RUer Silver Minhuj Co. v. (n) Venezuela Rail. Co. v. Kisch, L. Smith, L. R. 4 H. L. 64. R. 2 H. L. 99 ; see Taylm- v. Asldon, (j;) Smith v. Chadwid; 20 Cli. D. 27 11 M. & W. 415 ; Neio Brunswick Rail. (C. A.) Co. V. Conyhcare, 9 H. L. C. 711 ; 31 L. 276 A TREATISE ON TOKTS. Chap. XI. Proof of acting on misrepre- sentation, and that damage accrued. Delay. Defence. Extent of lia- bility of com- pany for re- ports contain- ing misrepre- sentation issued by its directors. It has been held that when a company finds that the persons mentioned as directors when the prospectus was first issued refuse to act, it is bound to issue a new prospectus containing other names, and to inform those who have applied for shares that, before the allotment was made, other directors had been appointed (q). Where the misstatement contained in a prospec- tus is only of a trifling or relatively trifling character, it will not support an action for deceit (r). To support an action for deceit, the plaintiff must prove that he acted upon the false statement complained of (s), and that he suffered damage in consequence (i). Where a person believes that he has been misled, by represen- tations which are false and deceptive, into taking shares in a proposed company, it is his duty to raise the objection at an early period, and to be guilty of no needless delay (tt). It is no answer to an action on a false representation contained in a prospectus, that the plaintiff might have ascertained the truth by proper inquiry (x), or that they were literally true, if calculated and intended to deceive (y). One of the directors of a company, set up as defence that he had not taken any part in preparing and issuing the prospectus ; he knew, however, all that the other directors knew, consented to become a director of the company, signed the memorandum and articles of association, and shares were appropriated to him ; it was held that under these circumstances he could not avail himself of this defence (z). For many years the law was unsettled as to the extent of a company's liability for the misrepresentations of its directors (a). In the National Exchange Company of Glasgow v. Dre^v (b), Lord Cranworth says, " What is the consequence of the company receiving a report and publishing it to the world ? I confess that in my opinion, from the nature of things, and from the exigencies of society, that must be taken, as between the company and thkd persons, to be a representation by the company. The company (5) Anderson's Case, per MaXins, V.-C, 17 Ch. D. 373 ; 50 L. J. Ch. 269. (r) Smith v. ChadwicJc, mi,pra ; see Arkun-ight v. Newhold, \7 Cli. D. 301 (C. A.) as to mention of a fact known before allotmeut -which falsifies pro- spectus. (5) Smith V. duidwich, 20 Ch. D. 27. (4 Eastwood V. Bain, 28 L. J. Ex. 74. (tt) Venezuela Sail. Co. v. Kiseh, supra : Bellairs v. TxKker, 13 Q. B. D. 562. (x) Venemela Rail. Co. v. Kiscli, supra. (y) Boss V. Estates Investment Co. , L. R. 3 Eq. 122. (2) Peeh V. Guniey, L. R. 6 H. L. 377. (a) See Dodgson's Case, 3 De G. & S. 85 ; Bernard's Case, 5 De G. & S. 289 ; BrockwelVs Case, i Drew 205 ; overruled by the Lords Justices in Mixer's Case, i De G. & J. 575. (6) 2 Macq. H. L. 103. FEAUDULBNT PBOSPECTUS. 277 as an abstract being, can represent or do nothing. It can only Chap, XI, act by its managers. When, therefore, the directors in the discharge of their duty, fraudulently for the purpose of misleading others as to the state of the concerns of the company, represent the company to be in a different state from that in which they know it to be, and when the persons to whom the representation is addressed act upon it in the belief that it is true, I cannot think that society can go on without treating that as a misrepre- sentation by the company." Lord St. Leonards in the same case says, " I have certainly come to this conclusion, that if representations are made by a companj', fraudulently, for the purpose of enhancing the value of their stock, and they induce a third person to purchase stock, those representations so made by them for that purpose do bind the companj'. I consider repre- sentations by the directors of a company as a representation by the company, although they may be representations made to the company, it is their representation." Lord "Westbury, L.C., observes in the New Brunswick Railway Co. y. Conyheare (c), " I certainly am not at all disposed to advise your Lordships to throw any doubt upon this doctrine, that if reports are made to the shareholders of a company by their directors, and the reports are adopted by the shareholders at one of the appointed meetings of the company, and these reports are afterwards industriously circulated, misrepresentations must undoubtedly be taken, after their adoption, to be representations and statements made with the authority of the companj^, and therefore binding on the company." In the same case. Lord Cranworth suggested a distinction which appears to explain the expressions of " misre- presentations of directors being representations of a company," and "misrepresentations of directors being binding upon a company." His Lordship observes {d), " The principle " (of making a company I'esponsible for the misrepresentation of the directors) " cannot be carried to the wild length that I have heard suggested, namely, that you can bring an action against the company upon the ground of deceit, because the direc- tors have done an act which might render them liable i.o such an action. That I take not to be the law of the land, nor do I believe that it would be the law of the land if the directors were the agents of some person, not a company. The fraud must (c) 9 H. L. C. 725. [d) 9 H. L. C. at p. 740. 278 A TREATISE ON TORTS. Cliap. XI. be a fraud that is either personal on the part of the individual ~~ making it, or some fraud which another person has impliedly authorised him to be guilty of." The principle which is to be deduced from the authorities, and which is now acted upon in cases of misrepresentations by directors, is as follows : — ^Where a person has been induced to purchase shares by the fraudulent misrepresentations of the directors, and the directors in the name of the company, seek to enforce that contract, or the person who has been deceived institutes an action against the company to rescind the contract on the ground of fraud, the misrepresenta- tions are imputable to the company, and the purchaser cannot be held to his contract, because a company cannot retain any benefit which they have obtained through the fraud of their agents. But if the person who has been induced to purchase shares by the fraud of the directors, instead of seeking to set aside the contract, prefers to bring an action for damages for the deceit, such an action cannot be maintained against the company, but only against the directors personally (e). Officers of com- Not only are the directors liable to an action, but also the cMOTction^of"'^ officers of the company, who knowingly and fraudulently aid in fraudulent the concoction of false and deceitful reports, whereby persons are repor s. induced to invest in the company and so suffer detriment and loss(/). Responsibility The question as to how far the directors of a company are of directors for j-ggponsible for a fraudulent statement made by their agent was misrepresenta- ^ at tion by their very fully discussed in the case of Weir v. Bell (g). There, a company formed to work a mine was compelled from want of funds to cease working ; money was then advanced to them by some of the directors, and amongst them Barnett and Baldwin. Afterwards, at a general meeting of the company, held in order, amongst other things, to provide for the existing deficit and for working expenses, the directors were authorised to issue deben- tures on such terms and for such amounts as they in their discretion might think fit. The dii-ectors accordingly authorised the secretary to employ a firm of brokers to place the debentures. The brokers prepared and issued a prospectus, bearing the name {a) Western Bank of Scotland v. (/) C'ullcn v. Thompson, 4 Macq. H. Addie, L. R. 1 H. L. ; judgment of L. Cas. ii\. Lord Chelmsford, L.C., at p. 157. See {g) 3 Ex. D. 238 (C. A.). nai V, Lane, L. R. 11 Eq. 215. agent. FRAUDULENT PROSPECTUS. 279 of Bell and others as directors, and containing statements as to Chap. XI. the condition and prospects of the company, on the faith of which the plaintiif and others purchased debentures. The monej' thus raised was paid to the company's bankers, and part of it apphed by the directors on behalf of the company to repay the advances made by Barnett and Baldwin. The debentures becoming worth- less, the plaintiff brought an action for damages against Bell and others in respect of the statements in the j)rospectus, some of which were alleged to be fraudulent. The jmy found that the prospectus contained statements of fact which were false to the knowledge of the brokers, and by which the plaintiff was induced to part with his money ; that none of the false statements were made by Bell personally or hy his authority ; that the brokers had authority to issue a prospectus, but no authority to include in it statements which were fraudulent ; and that Bell derived no benefit from the money raised by the debentures. It was held bj' the Com't of Appeal (Cockburn, C.J., Bramwell and Brett, L.J.), Cotton, L.J., dissenting, that the defendant Bell was not liable. Cockburn, C.J., and Brett, L.J., based their decison on the ground that, though a party as director to the receipt of money, the defendant Bell was not aware of the falsehood of the state- ments contained in the prospectus, and derived no personal benefit from the receipt of the money. Bramwell, L.-T., con- sidered that the defendant Bell had been guilty of no moral fraud, and not being the principal (h) of the brokers could not be held to have impliedly undertaken for the absence of fraud in them in issuing the prospectus. Cotton, L.J., dissented from the judgment of the majority of the Court, holding that the defendant Bell was liable in an action to the plaintiff, for it was his duty as director to ascertain whether the statements in the prospectus were true or false. ' Where the directors of a company by their acceptance repre- personal lia- sented that they had authority to accept on behalf of the company, liility of direct- such representation being false as a matter of fact, it was held acceptances. that they were personally liable to the parties who discounted the bills on the faith of such representation (?). (h) See Smith v. Anderson, 15 Ch. D. (i) West London Commercial Bank v. 247; 50 L. J. Ch. 39; where it was Kitson, \Z Q. B. D. 360 (C. A.); see held that a director, as between himself Bealtie v. Ehury {Lord), L. R. 7 H. L. and the company, occupies the position 361 ; Richardsmi v. WilHamson, L. R. of a paid servant. 6 Q. B. 276. 280 A TREATISE ON TORTS. Chap. XI. By the Companies Act, 1867, 30 & 31 Vict, c, 181, s. 38, it is 80 & 31 Vict enacted that every prospectus of a company and every notice u. 131, s. 38. inviting persons to subscribe for shares, shall specify the dates and names of the parties to any contract entered into by the company, or by the promoters, directors, or trustees thereof, be- fore the issue of the prospectus, whether subject to adoption by the directors or company or not, and that every prospectus or notice not specifying the same shall be deemed fraudulent on the part of the promoters, directors, or officers knowingly issuing the same, as regards any person taking shares in the company on the faith of the prospectus, unless he has had notice of the contract. The meaning and effect of this enactment has given rise to a considerable difference of judicial opinion. The object of the enactment was doubtless to give persons invited by prospectuses or notices to become shareholders in companies some greater protection than thej'' possessed before, " but whether such pro- tection," observes Thesiger, L.J. (k), " was merely directed to prevent the concealment from such persons of contracts of the description of that which was concealed in the well-known case of Overend, Gurney & Co., Limited, a contract which had a most direct and most material bearing upon the position of the com- pany and the value of its shares ; or whether it was intended to enforce also the disclosure of all the arrangements preceding the formation of the company made by the parties concerned in its formation, whether they directly affect the position of the com- pany or not, is a matter which from no source properly open to us can be satisfactorily solved." Two conflicting views as to its interpretation are to be found embodied in the decisions on this enactment. The one, shortly expressed by Bramwell, L.J., in Ticycross v. Grant (l), to the effect that only those contracts are meant, " which affect the company, which put an obligation on it, whether with or without some benefit attached," and expanded by Kelly, C. B., in his judg- ment in the same case (m), where he says " that a contract to be within the provision must have been made with the company if it has been formed, and if not, with the promoters or the directors or the trustees, representing or purporting to act on behalf of the future company, and with the intent that the company when (k) Sullivan v. Mitmlfe, 5 C, P. D. at {I) 2 C. P. D. at p. 499, p. 458, («i) At p. 506, FRAUDULENT PROSPECTUS. 281 formed shall execute a corresponding contract, and so in effect Chap. XI. ratify the act done by the promoters or other body of persons mentioned before its formation ; also that it must be such as to impose, or be intended to impose a burden, or obligation, or a loss, or a liability upon the company, which would affect the value of the shares in the hands of a purchaser." The other view is stated by Brett, L.J., in Gorer's case (n), in the following terms : " I come to the conclusion that it " (s. 38) " includes every con- tract made before the issue of the prospectus, the knowledge of which might have an effect upon a reasonable subscriber for shares in determining him to give or withhold faith in the promoter, director, or trustee, issuing the prospectus, whether such contract was made by such promoter, director, or trustee before or after he became a promoter, director, or trustee, and whether or not such contract was made on behalf of, or so as if adopted to impose a liability on, the company." In Cornell v. Hay (o), Keating, J., was of opinion that this section extended to any contract whose subject-matter was such that a shareholder might reasonably be entitled to be made acquainted with, while Honej'man, J., held that the section was not confined to contracts made or intended to be made on behalf of the companj'. In Gover's case (oo) the Court of Appeal were equally divided, James, L.J., and Bramwell, B., inclining to the narrower, and Mellish, L.J., and Brett, J., to the wider construction of the enactment. The facts in Gover's case, so far as they are material to the interpre- tation of this section, were as follows : — A. contracted to purchase from B. a patent for £65,000, to be paid partly in cash and partly in the shares of the company to be formed by A. Three months afterwards A. made an agreement with a trustee for an intended company to sell the patent to the trustee for £125,000, payable partly in cash, and partly in shares in the company. Shortly afterwards the company was formed, A. being a director. A prospectus was issued which did not mention the first agree- ment for purchase. Bacon, V.-C, held (p), that as A. had not been shewn at the date of his contract with B. to have been a promoter of, or in a fiduciary position towards the company after- wards formed, the omission from the prospectus of all notice of ill) 1 Ch. D. at p. 200. (oo) 1 Ch. D. 182. (o) L. R. 8 C. P. 328 ; see also Chart- (p) L. R. 20 Eq. 182 ; see Craig v. ton V. Hay, 31 L. T. N. S. 437. PhilUps, 3 Ch. D. 722. 28i A TREATISE ON TORTS. Chap. XI. that contract was not fraudulent within the meaning of the Com- panies Act, 1867, s. 38. On appeal James, L.J., and Bramwell, B., held that as the contract in question had not been entered into bj'^ a person who was at the date thereof, a promoter, director or trustee of the company, there was no necessity to specifj' it in the prospectus. Mellish, L.J., and Brett, J., on the other hand were of opinion that it ought to have been specified ; Mellish, L. J., on the ground that the section extended to every contract made with a person who afterwards becomes a promoter, provided the company have become entitled to the benefit of the contract or liable to perform its provisions, and Brett, J., on the ground that the section included every contract made before the issue of the prospectus, the knowledge of which might affect the mind of a subscriber for shares, whether such contract was made by a promoter, director or trustee, before he became such promoter, director, or trustee, and whether or not such contract was made on behalf of, or so as if adopted to impose a liability on the company. In Twycross v. Grant (q) an action was brought by the plaintiff under the Companies Act, 1867, s. 38, to recover the amount paid by him in the Lisbon Tramways Co. on the ground of the fraud of the defendants (the promoters of the Company) in omitting from the prospectus two contracts entered into by them as promoters — the one a contract between the defendants C. and P. and one S. for the purchase of certain foreign concessions for the construction of tramways which the company was afterwards incorporated to make and work ; the other a contract between the defendants C. and P. and the defendant G. as to certain pay- ments to be made by C. and P. to G. in consideration of his obtaining for them a contract from the company for the construc- tion of the tramways, by means of which fraud the plaintiff had been induced to take the shares which proved worthless. The jury found that these contracts were material to be made known to the intended shareholders of the company. It was held by the Common Pleas Division (Lord Coleridge, C.J., and Grove and Lindley, JJ.) that the contracts ought to have been specified in the prospectus, and that the defendants were liable. On appeal the Court was divided. Cockburn, C.J., held that the decision of the Divisional Court should be affirmed on the ground that all (}) 2 C. P. D. 469 (C. A.). FRAUDULENT PROSPECTUS. 283 contracts which are material to the interests of the company and ' Chap. XI. material to he made known to the shareholder came within the provisions of the 38th section. Brett, L.J., adhered to the opinion he had expressed in Cover's case (r), and concurred in the judgment of Cockburn, C.J. Bramwell, L.J., was of opinion that the defendants were not liable, as only those contracts are meant which aifect the company and which put an obligation upon it, whether with or without some benefit attached, and that the section does not extend to every contract which would assist a person in determining whether he would become a share- holder. Kell}'', C.B., also held that the defendants were not liable, for substantially the same reasons as those stated by Bramwell, L.J. In Sullivan v. Mitcalfe (t) the question as to the construction of this enactment came before the Court of Appeal (u) on a demurrer to a statement of claim. A. and B. being possessed of a patent, agreed to sell it to a company for £56,000, but by a series of contracts it was arranged that only £2,000 out of that sum should be retained bj' them for their own use, and that £54,000 should be divided between the promoters and the companj'. The prospectus, issued on behalf of the company, did not mention the contracts relating to the disposal of the purchase money of the patent. The defendants were promoters and directors of the company. The plaintiff subscribed for shares, and afterwards sued the defendants to recover the jDrice of the shares subscribed for by him. It was held on demurrer, by Baggallay and Thesiger, L.JJ. (Bramwell, L.J., dissenting), that the contracts as to the disposal of the purchase money of the i:)atent ought to have been specified in the prospectus pursuant to the Companies Act, 1867, s. 88, and that the defen- dants were liable to the plaintiff for the price of his shares. In the course of his judgment Thesiger, L.J., observes (x) : "As a mere matter of interpretation unaffected by any rule of construc- tion, the section appears to me capable of being read in such a manner as to bear either the wider or the narrower interpretation which has been put upon it, and the arguments in favour of the one and the other interpretation appear to me almost equally M 1 Ch. D. at p. 200, (u) Bramwell, Baggallay, and Thesiger, (i!) 5 C. P. D. 455 (C. A.) ; 49 L. J. C. L.JJ. P. 315. (is) At p. 459. 284 A TREATISE ON TORTS. Chap. XI. S. 38 only applicable to shareholders. S. 38 does not give remedy against the company, but only against persons omit- ting to disclose contracts. Meaning of words "know- ingly issuing," in s. 38. Measure of damages. balanced. Under such circumstances, even if there were no rule of construction guiding me to the same result, I should feel myself compelled by the preponderating weight of judicial authority which, putting aside Gover's case'(2/), which is claimed by the advocates of both interpretations, is to be found in favour of the wider interpretation in Cornell v. Hay (z), in Charlton v. Hay (a), and in Twycross v. Grant " (b). Bramwell, L.J., adhered to the opinion he had expressed in Twycross v. Grant (b), and entered into an elaborate criticism of the section and the decisions that had been pronounced upon it, and his lordship concluded his judgment with the observation that " Care should be taken not to put a construction on the statute, unreasonable and impossible from its wideness, which on the failure of a perfectly honest company may work the grossest injustice on persons entirely honest and faithful to their duties." It will be seen from the above review of judicial opinion on this point, that the preponderating weight of judicial authority is in favour of the wider rather than the narrower interpretation of the statute. The 38th section of the Companies Act, 1867, is applicable only for the protection of shareholders in the company, and creates no statutory duty towards the bondholders of the company or others, for breach of which an action on the statute will lie (c). Where the omission to specify any agreement is fraudulent under the statute, the shareholder has his remedy against the person making the omission, but cannot have his name removed from the list of shareholders (d). The words "knowingly issuing" in s. 38, mean intentionally issuing a prospectus without inserting the contracts which are required by that section to be specified, although they are omitted under the bond fide belief that it is unnecessary to specify them {dd). If the real damage occasioned to the plaintiff by the defendant's fraud is the price he paid for the shares, he is entitled to recover that amount, and where the shares taken by the plaintiff proved to be worthless, he was held entitled to recover the whole (y) 1 Ch. D. 182. (z) L. K. 8 C. P. 328. (a) 31 L. T. N. S. 437. (6) 2 C. P. D. 469 (C. A.) (e) Cornell v. Hay, L. R. 8 C. P. 328 ; 42 L. J. C. P. 136. (d) Gover's Case, 1 Ch. D. 182 ; 45 L. J. Ch. 83 (C. A.). So held by majority of the Court, Brett, L.J. dis. {dd) Twycross v. Grant, 2 C. P. D. 469 ; 46 L. J. C. P. 636 (C.A.). FEAUDULENT PEGS PECTUS. 285 amount (e). Where the plaintiff retained his shares after he Chap. XI. had knowledge of the misrepresentation, and the shares having depreciated in value ; it was held that he was entitled to recover damages, and that since the concern, which was bought as a going concern, would not have fetched more than one half if it had been sold as a wrecked concern, the measure of damages was one half the purchase money (/). (c) Twycross v. Grant, L. R. 2 C. V. (/) ArkiorigU v. Ncicbold, 49 L, J. D. 469 ; 46 L. J. C. P. 626, Kelly, C.B. Ch. 689. dis. Chap. XII. CHAPTER XII. COPYRIGHT. Property in " EvERY new and innocent product of mental labour," observes wks''"''^'* a learned writer on the law of copyright (a), " which has been embodied in writing or some other material form, becomes the exclusive property of the author, and without his express per- mission the law will not allow any other jperson to publish it." The nature of the right of an author in his works is analogous to the rights of ownership in other personal propertj', and is far more extensive than the control of copying after publication in print, which is the limited meaning of copyright in its common acceptation. Thus, if after composition the author chooses to keep' his writings private, he has the remedies for wrongful abstraction of copies analogous to those of the owner of personalty in the like case. He may prevent publication ; he may require back the copies wrongfully made ; he may sue for damages if they are sustained (fc). Not dependent "^'^^ property of an author in his unpublished works is inde- on statute. pendent of statute, and depends entirely upon the common law right of property (c). This right the Courts will protect, and will accordingly prevent any one making use of or publishing the manuscript of an author {d), or the unpublished lectures of a lecturer (e), or the etchings of an engraver (/), without their permission. Copyright only After publication the copyright in works of literature and art exists by sta- tute. ~" (a) Shoitt's Law of Copyright, 2ud (d) Wehh v. Rose, cited 2 Bro. P. C. ed. p. 5. 138. (b) Per Erie, C.J., Jefferysr. Booscy, (c) Ahertiethy \. Sutchinson, 1 H. & 4 H. L. Cas. 815 ; 24 L. J. Ex. 81. Tw. 40 ; 3 L. J. Ch. 209 ; Micols v. Pit- (c) See Prince Albert v. Strange, 2 De man, 26 Ch. D. 374. Publication of G. & Sm. 695 ; on appeal, 1 Mac. & lectures without consent is forbidden in Gordon, 25 ; 18 L. J. Ch. 126 ; per certain cases by 5 & 6 Wni. 4, c. 65. Yates, B., iu Millar v. Taylor, 4 Burr. (/) Prince Albert v. Strange, mp-a. at p. 2378. copyright. COPYRIGHT. 287 exists onh'by statute ((/), and there is no co-existing common law Chap. XII. protection during the statutable period (h). The first Act defining the rights of authors of published works was the 8 Anne c. 19, which was repealed by the Copyright Amendment Act, 1842, 5 & 6 Vict. c. 45, which is the statute Copyright Act, now in force in respect to the copyright in books, &c. (/). That ^^^^' statute by s. 2 enacts that in the construction of the Act the Definition o£ word " book " shall be construed to mean and include every volume, ^^'"^' ^' ^' part or division of a volume (k), pamphlet, sheet of letter press (l), sheet of music, map, chart, or plan separately published ; that the words " dramatic piece " shall be construed to mean and include every tragedy, comedy, play, opera, farce, or other scenic, musical, or dramatical entertainment (m) ; and that the word " copyright" shall be construed to mean the sole and exclusive liberty of printing and otherwise multiplying copies (n) of anj- subject to which the said word is herein applied. S. 3 enacts that the copyright in every book which shall after Duration of the passing of the Act be published in the lifetime of its author shall endure for the natural life of such author, and for the further term of seven years, commencing at the time of his death, and shall be the property of such author and his assigns provided always that if the said term of seven years shall expire before the end of forty-two years from the first publication of such book, the copyright shall in that case endure for such period of forty-two years, and that the copyright of every book which shall be published after the death of its author shall endure for the term of forty-two years from the first publication thereof, and shall be the property of the proprietor of the author's manuscript from which such book shall be first published and his assigns. (g) Jefferxjs v. Boosey, i H. L. Cas. abroad, were to come to this country, 815 ; 24 L. J. Ex. 81 ; Donaldson v. and the week or day after his arrival Beckett, i Burr. 2408. were to print and publish it here, he {h) Meade v. Conquest, 9 C. B. N. S. would be within the protection of the 755 ; 30 L. J. C, P. 269. Statute." Jeiferys v. Boosey, 24 L. J. (i) This statute must primA facie be Ex. at p. 97. construed as refening to British authors {k) University of Cambridge v. Brycc, only, "But I do not doubt," observes 16 East, 317; British Museum y. Payne, Lord Cranworth, L.C., "that a foreigner 2 Y. & J. 166. resident here, and composing and pub- {/) dementi v. Golding, 2 Camp. 25 ; lishing a book here, is an author within White v. Geroch, 2 B. & Aid. 298. the meaning of the statute. He is within (m) Russell v. Smith, 12 Q. B. 217. the words and spirit. I go further ; I (re) Novello v. Sudlow, 12 C. B. 177 ; think that if a foreigner, having com- 21 L. J. C. P. 169. posed, but not having published, a work 288 A TREATISE ON TORTS. Chap. XII. Subsisting copyright at time of passing of the Act. Registration and assignment of copyright. Person aggrieved. Remedy for pirating copy- right. Notice of objec- tion to plain- tiff's title. Importation of reprints from abroad. Magazines and periodicals. Dramatic pieces and musical compositions. Certain remedies saved. Assignment of copyright of dramatic piece or musical com- position not to convey right to represent. Pirated works. By s. 4 it is enacted that authors and proprietors of books in which there was a subsisting copyright at the time of the passing of the Act may by arrangement between themselves extend the benefit of the Act to such subsisting copyj-ight. S. 13 enacts that the jjroprietor of the copyright must make entry in the registry book of the Stationers' Company of the title of such book, the time of its first publication, the name and residence of its publisher, and the name and residence of the pro- prietor of the copyright, in the form given in the schedule ; and the same section further enacts that every such registered pro- prietor may assign his interest or any portion of his interest therein, by making an entry in the registry book of such assign- ment, and of the name and residence of the assignee in the form given in the schedule. S. 14 enacts that any person aggrieved may apply to the Court to expunge or vary any entry made in the registry book in pursuance of the Act. S. 15 gives a remedy by action against any person pirating the copyright. S. 16 enacts that in actions for piracy the defendant must give notice of the objections to the plaintiff's title on which he means to rely. S. 17 forbids the importation and selling knowingly, under certain penalties, of copies of works reprinted abroad in which there is an existing copyright. Ss. 18, 19 enact certain regulations as to magazines and periodicals published in a serial form. S. 20 extends the provisions of the Act as to duration of copy- right to dramatic i^ieces and musical compositions (o). S. 21 saves the remedies of proprietors of right of representing dramatic piece or musical composition under 3 & 4 Wm. 4 c. 15. S. 22 enacts that no assignment of the copyright of a book containing a dramatic piece or musical composition shall convey a right to the assignee to perform the same unless the entry in the registry book expressly so provides. S. 23 enacts that copies of books pirated shall become the property of the proprietor of the copyright. (o) Sec 3 & 4 Wm. 4, c. 15. COPYRIGHT. 289 S. 24 enacts that no action for infringement of copj'riglit shall Chap. XII. be brought by the proprietor unless he has previously caused ^pyiigji^ an entry to be made at Stationers' Hall pursuant to the Act (p). m^if* be duly S. 25 enacts that copyright shall be personal property. cop'Stper- S. 26 enacts that all actions in respect of offences under the statute souai property. must be brought within twelve months after the offence committed. Limitation of action. OS. 27 eV 28 save certain rights. British Copyright, whenever it exists, extends under the 5 & 6 Vict. c. 45, 3, 29, to every part of the British dominions (pp). In order to become the subject of copyright the matter must be To what works original, it must be the composition of the author, something tend"^''* *'''" which has grown up in his mind, the product of something which if it were applied to patent rights would be called invention (q). If the literary or artistic work is of a libellous or immoral ten- dency, no copyright can be acquired in it which the law will en- force (r). Nor if the work is founded on a fraud. Thus, in an action for infringmg the copyright in a work, " Evening Devotions ; or the Worship of God in Spu'it and in Truth, for every day of the year, from the German by Sturm," the defendant pleaded that Sturm was a well-known writer on religious subjects, and that the plain- tiff procured A. to write the book in question, as a translation from the German by Sturm, whereas no such work existed, and with a view to defi'aud the public, and obtain a profit for himself, published a title-page and preface to the work, falsely representing it to be the genuine production of Sturm. It was held that the plea dis- closed a transaction, on the part of the plaintiff in the nature of a crimen falsi ; that he had, therefore, no copyright in the work, and that the plea afforded a good defence to the action (.s). A map comes within the provisions of the statute, and as such A map. requires to be registered before an action for an infringement of the copyright therein can be maintained (t). In a case decided by Malins, V.-C. (w), it was held that a news- Newspaper. {p) This prohibition extends only to {p2i) IlouUedge v. Low, L. R. 3 H. L. the copyright of books. EussM v. 100. Smith, 12 L, J. Q. B. 225 ; 12 Q. B. (q) Per Lnsh, L.J., Dicks v. Yates, 18 217. The right of an author in an Ch. U. at p. 92. article in a periodical, under s. 18, to (r) Per Lord Eldon, Southey v. Sher- prevent a separate publication, is not wood, 2 Meriv. 437 ; Stockdtde v. copyright within the meaning of this Onwhyn, 5 B. & C. 173. section, and it is no objection to a motion (s) Wright v. Tallis, 1 C. B. 893; 14 for an injunction in such a case that the L. J. C. P. 283. author has not entered his work at (t) Stannard v. Lcr, L. R. 6 Cli. 346. Stationers' Hall. Mayhew v. Maxwell, (ii) Cox v. Land and Water Journal 1 John. & H. 312, Co., L. R. 9 Ecj. 324. 290 A TREATISE ON TORTS. Newspaper articles. Magazine articles. Chap. XII. paper did not come within the provisions of the Copyright Act (x), ~ and required no registration to entitle the proprietor to sue in respect of a piracy. The late Master of the EoUs (Sir G. Jessel), however, refused to follow this decision, as he considered it " opposed to the plain reading of the Act of Parliament " (y). The proprietor of a newspaper has, however, a property at common law in those communications for which he has paid (z), and in respect of which the contributor has agreed that copyright shall vest in the proprietor (a). By the effect of s. 18 of the Copyright Act, the proprietor of a periodical is precluded from republishing, without the consent of the author, articles written bj' the latter for, and published in such periodical in any other form than as reprints of the entire numbers of the periodical in which the articles appeared. A republication in supplemental numbers of a selection of various tales previously published in a periodical is a separate publication within the section (&). The right of an author of an article in a periodical, under the s. 18 of the statute, to prevent a separate publication, is not copyright within the meaning of s. 24, and it is no objection to a motion for an injunction in such a case that the author has not registered his work at Stationers' Hall (c). A book in the nature of an advertising catalogue may be the subject of copyright {d). Thus the plaintiffs, who were uphol- sterers, published an illustrated catalogue of articles of furniture which were duly registered under the Copyright Acts as a book. The illustrations were engraved from original drawings made by artists employed by the plaintiffs, but the book contained no letter-press of such a description as to be the subject of copyright, and it was not published for sale, but was used by the plaintiffs as an advertisement. The defendants published an illustrated catalogue, many of the illustrations in which were copied from those in the plaintiffs' books. It was held that the plaintiffs were entitled to an injunction restraining the defendants from publish- , Advertising catalogue. (x) 5 & 6 Vict. c. 45. (y) Walter v. Howe, 17 Ch. D. 708 ; see Piatt v. Walter, 17 L. T. 157. (z) There must have been an actual payment. Sec BicJiardson v. Gilbert, 1 Sim. N. S. 336. (a) Walter V. Howe, supra. (b) Smith r. Johnson, 4 Giff. 632 ; 33 L. J. Ch. 137. (c) Mat/hew v. Maxwell, 1 J. & H. 312. ' {d) Grace r. Newman, L. K. 19 Eq. 623 ; 44 L. J. Ch. 298. COPYEIGHT. 291 ing any catalogue containing illustrations copied from the Chap. XII. plaintiffs' Look (e). A copyright may be obtained in a telegi-aphic code (/). As to the extent of originality required in a work to bring it Originality of within the protection of the Copyright Acts, the following pro- ^^°''''' positions have been laid down If any person by pains and labour collects and reduces into the form of a systematic course of instruction those questions which he may find ordinary persons asking in reference to the common phenomena of life, with answers to those questions, and explanations of those phenomena, whether such explana- tions and answers are furnished bj^ his own recollection of his former general reading, or out of works consulted by him for the express purpose, the reduction of questions so collected, with such answers, under certain heads and in a scientific form, is sufficient to constitute an original work, of which the copyright will be protected. But another person may originate another work in the same genei'al form, provided he does so from his own resources, and makes the work he so originates a work of his own by his own labour and industry bestowed upon it. If, how- ever, instead of searching into the common sources, and obtain- ing your subject matter thence, you avail yourself of the labours of 3'our predecessor, adopt his arrangement and questions, or adopt them with a colourable variation, it is an illegitimate use (g) . No copyright can be acquired by registration at Stationers' Registration. Hall until publication of the work registered. Therefore where the proprietor of a periodical had registered its first number at Stationers' Hall before publication, although he had then entered on the register the date of its intended publication, which was the actual date ; it was held that having regard to ss. 13 & 18 of the Copyright Act, 1842, and to the form of requiring entry of proprietorship in the schedule to the Act, he was not entitled to copyright in the periodical, nor to an injunction to restrain its alleged infringement (h). An infringement of the registered copyright of the music of an Of musical opera may be committed where the opera itself has not been pub- composition. («) Maple v. Junior Army and Navy (g) JarroUl v. Houhton, 3 Kay & J. Stores, 21 Ch. D. 369 ; 52 L. J. Ch. 67 ; 708. overruling Cohhelt v. Woodioard, L. R. {h) Henderson v. Maxwell, 5 Cli. D. 14 Eq. 407 ; 41 L. J. Ch. 656. 892 ; 46 L. J. Cli. 891. See DHs v. (/) Jgar v. F. & 0. Steam Skip Co. Yules, 18 Ch. U. 76 ; 50 L. J. Cli. 809 26Ch. 1). 637. (C. A.). u 2 292 A TREATISE ON TORTS, Publication. Chap. XII. llshed, and so no copy of it could be deposited, and where the music having been made the subject of two piano "arrangements," one without the voice, another for the voice, and those arrangements having been published, the infringer has used them for his own production. In such case the question of what was intended to be registered will be considered with reference to all parts of the register, and if certain portions of the forms of registry are, in the particular case, unnecessary and unmeaning, the introduction of them will not affect those portions of the register which are correct (i). If a musical composer adapts words of his own to an old air, he acquires a copyright in the combination (ii). In the registration of a copyright, the insertion of the date of publication must be strictly accurate (k) ; it is not sufficient to enter the month in which the first publication takes place, but the day of first publication must be stated (Z). If the date of the first publication is erroneously stated in the registration, the registration is of no efi'ect, and no action can be brought to restrain the infringement of the copyright (m). It is no matter where the author resides at the time of the publication, he is entitled to copyright provided he first publishes in the United Kingdom (?^). Simultaneous publication abroad and in England does not prevent the author from obtaining copyright in the United Kingdom (o). In registering the copyright of a book at Stationers' Hall, it is sufficient to enter the first publisher, under the name of the firm, and the actual proprietor of the copyright at the time of registra- tion, without stating who the first proprietor was, or how the copyright devolved upon the present proprietor (^i). Registration of a copyright is bad, if the name entered as that of " the publisher " is not that of the first publisher (q). Name of pub' Usher. (t) Fairlie v. Boosev, L. R. i H. L. 711. (ii) Lcveiv. I)avidson,lC. B. N. S. 182. (/c) See Eoutlcdge v. Low, L. R. 3 H. L. 100 ; 33 L. J. Ch. 717 ; JBoucicauU v. Chalterton, 5 Ch. D. 267. (I) Mathiesoii v. Harrod, L. R. 7 Eq. 270 ; 38 L. J. Ch. 139. (m) Page v. Wi-iden, 20 L. T. 435. ()i) So held by the House of Lords in Eoutledgc v. Low, supra, dub. Lord Cranvvorth and Lord Chelmsford. In Jefferys v. Boosey, i H. L. Cas. 843, which was decided under the statute of 8 Anne, u. 19, it was held that the author must be actually resident in the United Kingdom at the time of pub- lication. (o) Buxton V. James, 5 De G. & S. 80. (p) Weldon v. Dicks, 10 Ch. D. 247 ; 48 L. J. Ch. 201. (?) Cootc y. Judd, 23 Ch. D. 727. COPYRIGHT. 293 By s. 13 of the Copyright Act, 1842, every registered pro- Chap. XII. prietor may assign his interest or any portion of his interest Assignment of therein by making an entry in the book of registry according to copyright. the form given in the schedule of the Act. The assignment must be in writing : accordingly, where the author of a song Must be in agreed verbally with A. to part with his copjTight, and subse- ^''''''S- quently by instrument in writing assigned it to B., who entered the song at Stationers' Hall, it was held that the title of B. must prevail, and that he could sustain an action to restrain A. from infringing his copja-ight (r). It is doubtful whether there can be a partial assignment of Partial assign a copyright (s). "'"'''• In the absence of a special contract to the contrary-, the assignor of a copj'iight is entitled after the assignment, to con- tinue selling copies of the work printed by him, and remaining in his possession before the assignment (t). A foreign author cannot by assigning his copyright according Assigrment of to the law of his own country, give the assignee a copyright "'^'^lau which will be recognized in England, so as to entitle the pur- chaser of it here to the right of exclusive publication («)• The joint authors of a book entered into a verbal agreement Assignment of with a firm of publishers by which the firm were to print and '" publish the book. If the book resulted in a loss, the firm were to bear the whole of it ; if there was a profit, they were to pay half of it to the authors. The profits were to be ascertained after deducting the cost of printing, &c. The book was published, and resulted in a profit. It was held that the agreement was merely personal to the individuals then composing the publishers' firm, and that the benefit of it could not, without the assent of the authors, be assigned by the publishers' firm to a firm which had succeeded to their business, but which contained none of the partners of the original firm. The successors of the original firm were accordingly restrained from publishing the book (x). It is a nice question, what shall be deemed such a modification Infringement of an original work as shall absorb the merit of the original in ° <=°Py"e *• (r) LeyUnid v. Stewart, i Ch. D. 419 ; ruling Booseyv. Davidson, 13 Q. B. 257; 46 L. J. Ch. 103. 18 L. J. Q. 13. 174 ; and Cocks v. Fur- is) Jefferys r. Boosey, i H. L. C. 815 ; day, 5 C. B. 860 ; 17 L. J. C. P. 273. 24 L. J. Ex. 81. (a!) Hole v. Bradbury, 12 Ch. D. 886 ; (<) Taylor v. Pillow, L. R. 7 Eq. 418. 48 L. J. Ch. 673 ; Stevens v. Benniiig, (m) Jefferyt v. Boosey, gu.pra ; over- 24 L, J. Ch. 153, 294 A TREATISE ON TORTS. Chap. XII. the new composition. No doubt, such a modification may be allowed in some cases, as in that of an abridgment or a digest ; such publications are in their nature original. Their compiler intends to make a new use, not that which the author proposed to make. The same may be said of the abridgment of any study ; but it must be a bond fide abridgment, because if it contains any chapters of the original, or such as make the work most saleable, the maker of the abridgment commits a piracy {y). If any part of a work complained of is a transcript of another work, or with only colourable additions and variations, and prepared without any real independent literary labour, such portion of the work complained of, is piratical. But it is impos- sible to establish a charge of piracy where it is necessary to track mere passages and lines through hundreds of pages, or where the authors of a work challenged as piratical have honestly applied their exertions to various sources of infor- mation (z). Plagiarism not Plagiarism does not necessarily amount to a legal invasion of rnvasion !rf ^^ Copyright, "A man," observes James, V.-C.(a), "publishing a copyright. work gives it to the world, and so far as it adds to the world knowledge, adds to the materials which any author has a right to use, and may even be bound not to neglect." The author of a published work cannot prohibit a subsequent writer from making use of the authorities quoted by him, even if it is proved that the latter was put on the track of those authorities by reading the earlier work; but the subsequent writer must bond fide go to the common sources, and not copy the quotations or passages from the earlier work. The taking of a single quotation without verification, or of a single argument founded on facts stated in the earlier work, are not sufficient grounds for granting an injunction (6). It is often an extremely nice and difficult question as to how far one author may make use of the work of another ; Lord Ellenborough says, " That part of the work of one author is found in another is not of itself pii-acj', or sufficient to support an action. A man may fairly adopt part of the work of another ; he may so {y) Per Lord Lyndhurst, C. B., B' at p. 260 ; Bradbury v. Hotten, L. R. 8 Almaine v. Boosey, 1 Y. & Col. 288. Ex. 1. (2) JarroU v. Heywood, 18 W. R. 279. (6) Pike v. Nicholas, L. R. 5 Ch. 251 j («) Fikc V. Nicholas, L. R. 5 Ch. n. 39 L. J. Ch. 435. COPYRIGHT. 295 make use of another's labours for the promotion of science and Chap. XII. the benefit of the public ; but having done so, the question will be, ' Was the matter so taken used fairly with that view, and with- out what I may term the animus farandi ? ' " (c). Thus, the com- piler of a dictionary, or a work in which absolute originalitj' is of necessity excluded, is entitled, without exposing himself to a chai-ge of piracy, to make use of preceding works on the subject, where he bestows such mental labour upon what he has taken, and subjects it to such revision and correction as to produce an original result, provided that he does not deny the use made of such preceding works, and the alterations are not merely colour- ably made (d). Where two works are written on a common subject, it is impor- Book on com- tant to bear in mind that a great deal of similarity will naturally by different be found in the two authors. Much of the information will anthers. probably be derived from common sources open to both, and this will result in a similarity of plan, and similarity of dealing with particular portions of the subject, which will not be sufficient to sujjport an action for infringement of copyright, unless there has been what Lord Hatherley calls " a slavish copying " from the earlier author (dd). The general principles guiding the Court in deciding cases of this description are thus laid down by Mr. Justice Story (c). " In short we must, in deciding questions of this sort, look to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale or diminish the profits, or supersede the objects of the original work." Where the proprietors of a periodical professing to be an analytical digest of legal decisions, copied verbatim the head or marginal notes of cases from reports, the copyright of which was in another person, without his consent, it was held to be a piracy (/). So, where the plaintiflF, a clerk in the London Coal Market, was in the habit of publishing, at considerable profit to himself, certain statistical returns, and the defendant, with due acknow- (c) Cary v. Kearsley, 4 Esp. 168. (c) In FoUom v. Marsh, 2 Story, 116, id) Spiers v. Brown, 6 W. R. 352. cited in Phillips on Copyright, at p. 125. (dd) Pike V. Nicholas, L. E. 5 Ch. at p. (/) Sweet v. Binning, 16 C. B. 459 ; 264. 24 L. J. C. P. 175. 296 A TREATISE ON TORTS. Chap. XII. ledgment of the original, and without any dishonest intention, embodied such returns in a book which he published at a small price, it was held that the plaintiff was entitled to an injunction on the ground that the effect of the appropriation was to injure and supersede the sale of the original work {g). It is no defence to say that a pirated work is not offered for sale itself, but merely used for the purpose of promoting the sale of books mentioned in it (h). No copyright in As a general rule there is no copyright in the title of a book(i). If, however, a person publishes a book with a title exactly the same as, or a colourable imitation of, the title of a work already published, with an intent to deceive the public, he commits a fraud at common law for which he is liable. " Where a man," observes James, L.J. (k), " sells a work under the name or title of another man's work, that is not an invasion of coi^yright, it is a common law fraud, and can be redressed by the ordinary com- mon law remedies, wholly irrespective of any of the conditions or restrictions imposed by the Copyright Acts. Supposing a man were to publish a book, calling it ' Soyer's Cookery Book,' which it is not, or * Colenso's Arithmetic,' which it is not; or, as in a case we had here, Metzlery. Wood (l), represent it as being ' Hemy's Modern Tutor for the Pianoforte,' which it is not : that is a common law fraud. That, as I said before, has nothing to do with the Copyright Acts, and is not subject to any of the conditions of the Copyright Acts as to registration or otherwise." Thus, the plaintiffs were the proprietors of a musical work called "Hemy's Royal Modern Tutor for the Pianoforte," but had no exclusive right to the use of the word " Hemy." The de- fendants, who were proprietors of a musical work called " Jousse's Eoyal Standard Pianoforte Tutor," brought out a new edition of their work, and employed Hemy to revise and re-edit it, and called it " Hemy's New and Revised Edition of Jousse's Royal Standard Pianoforte Tutor," and made the word " Hemy " the most pro- minent word on the title-page. It was held that the defendants had so used the word "Hemy" on the title-page of their work (a) Scott V. Stanford, L. E. 3 Eq. Ch. 569 ; see, however, Weldon v. Dicks, 718. 10 Ch. D. 247 ; 48 L. J. Ch. 201 ; Mack {h) Eottcn V. Arthur, 1 H. & M. 603 ; v. Peter, L. B. 14 Eq. 431. Til L. J. Ch. 771. (^) Dicks v. Yates, supra, at p. 90. (i) Du-Jcs V. Yates, 18 Ch. D. 76 ; 50 (l) 8 Ch. D. 606 ; 47 L. J. Oh. 625. L. J. Ch. 809 ; Kelly v. Byles, 48 L. J, COPYRIGHT. 297 as to lead the public to believe that in purchasing the defenclants' Chap. XII. work they were purchasing the plaintiff's work, and an injunction was granted accordingl)'(7ft). Though there is nothing analogous to a copyright in the name Nocopyrigiitiu J. . , • i 1 • 1 , , , J 1 name of news- 01 a newspaper, the proprietor has a right to prevent any other paper. person from adopting the name {n) . Copyright may be either in respect of the matter, or the Copyright may ,/.,,,. . , .,. exist in respect arrangement oi a book, but no property can be acquired in any of matter or article copied from a prior work (o). arrangement. Copyright may exist in respect of engravings contained in a In cartoons, book. Thus, the plaintiffs were the proprietors of the copyright oi Punch, which contained cartoons and other engravings, illustra- tive of the events of the day, and the careers of eminent persons ; and caricatui-es of the events in the history of Napoleon III. The defendant published a book entitled "Napoleon III. from the Popular Caricatures of the Last Thirty Years," and amongst a great variety of other caricatures taken from other publications there were nine taken from Punch, with the original readings and references, but much reduced in size. Not more than one such engraving was taken from any one number of Punch, and these engravings had appeared in Punch at intervals extending over several years. The engravings themselves had not been registered. It was held that this was an infringement of the publishers' copy- right in their publication of Punch (p). An action will lie for multiplying copies of a work in which there Gratuitous dis- isa subsisting copj-right, although the copies are not printed, and be! an 'inf ringe- are made for gratuitous distribution, and not for sale or hire (q). ""5"'- An author who converts a novel written by another Representation person into a drama does not infringe the copyright existing in f^^^^^^^ (,„ the novel (r). The author of a novel is not protected against novel not an having his novel put into the form of a drama by different persons, and it makes no difference that he himself has dramatised it. When an author has once given his novel to the world, he cannot take away from other persons the right to dramatise it by himself transforming it into a drama, (to) Metzler v. Wood, supra. 31 L. T. 775. (n) Kelly v. Satton, L. E. 3 Ch. 703 ; (?) Novella v. Sudlow, 12 C. B. 177 ; 37 L. J. Cii. 917. 21 L. J. C. P. 169. io) Barfield v. Nicholson, 2 Sim. & (r) Ecadc v. Conquest, 9 C. B. N. S. Stu. 1. 755 ; 30 L. J. C. P. 209. {p) Bradbury v. Hotten, L. E. 1 Ex. 1 ; 42 L. J. Ex. 28 ; seo Smith v. Chatto, A TREATISE ON TORTS. Chap. XII. subject to this, that they must not borrow from his drama but only from his novel (s). Where, however, the owner of copyright in a play wrote a novel founded upon it, to which he transferred several scenes from the play, and afterwards another person dramatised the novel, taking the same scenes from the novel, this was held to be an infringement of the copyright in the play (<). Although it is no infringement of copyright to represent a play dramatised from a novel written by another author, yet it is an infringement to print and publish a play so constructed (u). The 26th section of the Copyright Act, 1842, which limits the time for bringing actions in respect of offences committed against the statute to twelve months after the commission of such offence, does not apply to an action to restrain a piracy of copyright by sale of a book published more than twelve months before writ issued (x). The notice of objections required under s. 16 of the Statute is sufficiently complied with, by alleging a definite publication of the disputed work at some particular place, by some definite party either before or simultaneously with, the publication by the plaintiff, or with a publication in another place (y). The 17th section of the Copyright Act, 1842, mentions two offences, that of "to import for sale," and that of "to sell knowingly" unauthorised publications, and therefore ignorance of tlie nature of the imported copies is not a defence where the ofl'ence charged is " importing for sale," but only where the offence charged is " selling knowingly." Thus, the proprietors of an English copyright magazine brought an action against the agents in England of an American firm of publishers for an injunction to restrain them from selling or importing for sale in this country a magazine published by the American firm, and containing matter pirated from the plaintiffs' copyright. The defendants, by statement of defence, stated that they had determined not to sell the copies complained of in consequence of a notice received from the plaintiffs shortly before the commence- ment of the action, and before the defendants themselves had had the opportunity of inspecting such copies. It was held that this was no defence to a charge of "importing for sale " (s). Printing and publication is, Limitation of action. Notice of objec tions, s. 16. Importing for sale, and " selling know- ingly," s. 17. (s) Toole V. Yotmg, L. R. 9 Q. B. 523. (t) Meade v. Lacy, 30 L. J. Ch. 655. {u) Tinsley v. Lacy, 1 H. & M. HI ; 32 L. J. Ch. 535. {x) Hogg v. Scott, L. R. 18 Eq. 444. (y) Boosey v. Purday, 10 Jur. 1038 ; see also Coote v. Jiuid, 23 Ch. D. 727. (z) Cooper v. IFhittingham, 15 Ch. D. COPYEIGHT. 299 Upon an application under 5 & 6 Vict. c. 45, s. 14, to expunge Chap. XII. entries in the register at Stationers' Hall, representing A. to be 77^^^^ ^„. the proprietor of the right to perform certain songs published grieved, "sri4. before the Act, it appeared that the applicants, who were music publishers, claimed under a general grant of the copyright in the songs written by the composer after the Act, and that A. claimed under a subsequent grant by the composer which purported to convey separately the right of performing them. A., under colour of this grant, had threatened to take proceedings against persons performing the songs Avithout his consent. It was held that the application to expunge the entries must be granted ; for the applicants were "aggrieved" by the existence of the entries, which were calculated to prejudicially affect their literary copy- right in the songs by diminishing the number of copies sold (a). Books piratically pruated before registration by the proprietor Forfeiture of of the copyright, become his property after registration (b). The ""P'^s, s. 23. registered owner of a copyright in a work is entitled to have all the unsold copies of a printed edition delivered up to him for his own use, without making any compensation for the cost of production or publication ; but as to copies which have been sold, he is not entitled to the gross profits, but only the net profits which the party has made by their sale (c). The Dramatic Copyright Act, 3 & 4 Wm. 4, c. 15 (s. 1), gives the DramaticCopy- author of any tragedy, comedj', play, opera, farce, or any dramatic "s^* ^'=*' piece or entertainment, composed and not printed and pubHshed by ■\ym.'4 c. 15. the author thereof, or his assignee, the sole right of representing Sole right of it or causing to be represented at any place of dramatic entertain- [n^a\ahor^oi°° ment in the United Kingdom (d). Sect. 2 enacts that if any assignee. person shall during the continuance of such right represent or cause to be represented, at any place of dramatic entertainment within the United Kingdom, any of the aforesaid productions without having first obtained the consent in writing of the author or his assignee, he shall be liable for every such representation to Penalty for a payment of forty shillings, or to tlie full amount of the benefit Pfi*i'™"'g ■^ •' /.I • pieces contrary or advantage arising from such representation, or the injury or to the Act. 501 ; 49 L. J. Ch. 762. (d) See 5 & 6 Vict. c. 45, =. 20 ; by (a) Ex parte Hutchings v. Bomcr, 4 Q. ivhicli it is enacted that the term copy- B. D. 483 ; 48 L. J. Q. B, 505 (C. A.). right, as used in that Act, is to be applied (i) Isaacs V. Fidemann, 49 h. J. Ch. to the liberty of dramatic representation, 412. and that the first public representation (c) Del/ V. Ddaviotte, 3 Kay & J. shall be deemed equivalent to first publi- 581. cation. 300 A TREATISE ON TORTS. "Author" within the statute. Chap. X II. loss sustained by the plaintiff therefrom, whichever shall be the greater damages, to the author of such production, or his assignee (e). A person who employs another to adapt a foreign dramatic piece for representation upon the English stage, and who has no other share in the design or execution of the work than that of suggesting the subject, is not "the author" within the meaning of this statute ; and, therefore, when such employment is by parol, the employer has not the right of representing it without an assignment in writing from the author (/). The manager of a theatre, having designed to bring out an old play, with new scenery, dresses, and musical accompaniments, hired the plaintiff to compose the requisite music, who did so, and was paid for it. It was held that the sole right to the i-epresenta- tion or performance of such musical compositions, as part of the whole, was vested in the manager, without assignment or the consent in writing of the plaintiff"; as the terms of the contract between the plaintiff and defendant were that the compositions should become part of the entire dramatic piece, and that the manager should have the sole right of representing and per- forming the compositions with the dramatic piece ( Vict. u. 45, s. 20. (6) See judgment of Boweii, L.J., 12 Q. B. D. at p. 850. (c) Judgment of Brett, M.B., 12 Q. B. D. at -p. 847. In the case of a musical composition the penalty, under s. 2, 3 & 4 "Wm. 4, c. 15, can be recovered, although such musical composition has not been represented at "a place of dramatic entertainment." See Wall y. Taylor, 11 Q. B. D. 102 ; 52 L. J. Q. B. 558 (C. A.). (d) See also ss. 21, 22. (e) See JVcdl v. Taylor, 9 Q. B. D. 727 ; 11 Q. B. D. 102. (/■) August 10, 1882. X 306 A TREATISE ON TORTS. Chap. XII. Printed notice restraining public per- formance. Provision where right of performance and copyright vested in dif- ferent owners. Penalty on owner of copy- right for non- compliance with notice from owner of right of per- formance. Copyright in paintings, performance of the same, shall prmt or cause to be printed on the title-page of every published copy of such musical composi- tion a notice to the effect that the right of public representation or performance is reserved. S. 2 enacts in case after the passing of the Act, the right of public representation or performance of, and the copyright in, any musical composition shall be or become vested before publica- tion of any copy thereof in different owners, then, if the owner of the right of public representation or performance shall desire to retain the same, he shall, before anj' such publication of any copy of such musical composition, give to the owner of the copyright therein notice in writing requiring him to print upon every copy of such musical composition a notice to the effect that the right of public representation or performance is reserved ; but in case the right of public representation or performance of, and the copy- right in, any musical composition shall, after the publication of any copy thereof subsequently to the passing of the Act first become vested in different owners, and such notice as aforesaid shall have been duly printed on all copies published after the passing of the Act previously to such vesting, then if the owner of the right of performance and representation shall desire to retain the same, he shall before the publication of any further copies of such musical composition, give notice in writing to the person in whom the copyright shall be then vested, requiring him to print such notice as aforesaid on everj' copy of such musical composition to be thereafter published. S. 3 enacts if the owner for the time being of the copyright in any musical composition shall, after due notice being given to him or his predecessor in title at the time, and generally in accordance with the last preceding section, neglect or fail to print legibly and conspicuously upon every copy of such composition published by him or by his authority, or by any person lawfully claiming through or under him, a note or memorandum stating that the right of public representation or performance is reserved, then and in such case the owner of the copyright at the time of the happening of such neglect or default, shall forfeit and pay to the owner of the right of public representation or performance of such composition the sum of £20, to be recovered in any court of competent jurisdiction. By an Act, 25 & 26 Vict. c. 68, passed for amending the law relating to copyright in works of the Fine Ai'ts, and for repressing COPYKIGHT. 307 the Commission of Fraud in the production and sale of such Chap. XII. works, it is enacted (s. 1), that the author, being a British cu-awing, and subject or resident within the dominions of the Crown, of every photograpiis. original painting, drawing, and photograph which shall be or fg^^*^^'"'' shall have been made either in the British dominions or else- where, and which shall not have been sold or disposed of before the commencement of the Act (ry), and his assigns, shall have the Copyright in sole and exclusive right of copying, engraving, reproducing, and sold to veVi" multiplying such painting or drawing, and the design thereof of the author for , , . Ills lite, and sucii pnotograph, and the negative thereof, by any means and of for seven years any size, for the term of the natural life of such author, and ""er bis death. seven years after his death ; provided that when any painting or drawing, or the negative of any photograph, shall for the first time after the passing of this Act be sold or disposed of, or shall be made or executed for, or on behalf of any other person for a good or valuable consideration, the person so selling or disposing of or making or executing the same, shall not retain the copyright thereof, unless it be expressly reserved to him by agreement in writing signed, at or before the time of such sale or disposition, by the vendee or assignee of such painting or drawing, or of such negative of a photograph, or by the person for or on whose behalf the same shall be so made or executed, but the coi)yright shall belong to the vendee or assignee of such painting or drawing, or of such negative of a photograpb, or to the person for or on whose behalf the same shall have been made or executed ; nor shall the vendee or assignee thereof be entitled to any such copyright, unless, at or before the time of such sale or disposition, an agi'eement in writing, signed by the person so selling or disposing of the same, or by his agent duly authorized, shall have been made to that effect. By s. 2, cop3'right is not to prevent the representation of the same subjects in other works. B}' s. 3, all copyright under the Act is to be deemed personalty, and everj"- assignment or licence must be in writing. By s. 4, a registry of the proprietors and assignees is to be kept at Stationers' Hall, and no proprietor is to be entitled to the benefit of the Act without such registration. By s. 6, certain enactments of 5 & 6 Yict. c. 45, are to apply to the books to be kept under this Act. 0/) July 29, 1862. X 2 303 A TREATISE ON TORTS. Chap. XII. By s. 6, a penaltj^ not exceeding £10 is imposed upon any person inMnging the copyright, hy committing any one of the offences enumerated in the section. By s. 7, no person shall do or cause to be done any of the following acts ; that is to say : 1st. No person shall fraudulently sign any name or initials upon any painting, drawing, or photograph. 2ndly. No person shall fraudulently sell, publish, or exhibit, &c., any such work, having thereon the name of a person who did not execute such work. 3rdty. No person shall fraudulentlj' dispose of any copy or colourable imitation of anj' such work. 4thly. Where the author of any such work made either before or after the passing of the Act, shall have sold or otherwise parted with the possession of it, if any alteration shall afterwards be made therein by any other person, by addition or otherwise, no person shall be at liberty during the life of the author, without his consent to sell or publish such work, or any copies of such work so altered, as the unaltered work of such author. Every offender under this section shall upon conviction, forfeit to the person aggrieved, a sum not exceeding £10, or not exceeding double the full price, if any, at which such copies, engravings, imitations, or altered works shall have been sold or offered for sale ; and such co^Dies shall be forfeited, provided that the penalties imposed under this section shall not be incurred unless the person whose name or initials shall be so fraudulently signed, or to whom such spurious or altered work shall be so fraudulently or falsely ascribed, shall have been living within twenty j'ears next before the time the offence was committed. Sect. 10 i^rohibits the importation of pirated works. Sect. 11 saves the right to bring an action for damages. If the design of a picture is made in violation of the statute, it is immaterial whether this is done directly from the original, or indirectly through the medium of a copy (h) ; thus, a photograph of an engraving from a picture is a photograph in which copyright is given by 25 & 26 Vict. c. 68, s. 1 (t). The "author" of a photograph is the person who takes the Photograph of engraving. ' ' Author " of photograph (h) Ex parte Beal, L. R. 3 Q. B. 387 ; 37 L. J. Q. B. 131 ; see Turner v. MoMnson, 10 Ir. Ch, Rep. 510 (C. A,). (i) in re Graves, L. R. 4 Q. B, 715 ; in re Walker, 39 L. J. Q. B. 31. COPYRIGHT. 309 negative, and it is his name which should appear on the register Chap. XII under the Statute. Thus A. and B. carried on business in ,,;t,,i„ ^-^^ partnership as photographers under the style of the London statute. Stereoscopic Company. They did not take the photographs themselves, but employed managers and a large staff of photo- graphic ai-tists and assistants. One of their managers, thinking that the photograph of the Australian Cricketers would sell well, arranged for the photographs to be taken, without any payment being made for taking them, and sent one of the artists in the employ of the firm to take the negative. From this negative the photograph was in the usual way produced and sold by the firm in the ordinary course of business ; and A. and B. registered themselves, under the Copyright Act, 1862, in their individual names as proprietors and authors of the photograph. In an action by the firm to restrain the pirating of their copyright in the photogi'aph, it was held that they were wrongly described as the authors, and that, therefore, the registration was bad, and no copyright existed ; and semhle that the person who took the negative was the author (A;). Where the owner of the copyright of a painting assigns the Assignment for copyright for the purpose of producing an engraving of one size, copyiifgin one the right of producing copies of the painting in other ways, or by ^^y- engravings of other sizes, remains in him, and can be assigned by him to any other person. If the assignee of the right of copy- ing a painting in a particular way alleges that some other piibli ca- tion is an infringement of his copyright, the omts is on him to show that the publication has been taken from his copj^, and not from the original painting (?). The assignees, duly registered, of the copyright in a picture sold to the plaintiff the sole right to reproduce it in chromo for two years. This agreement of sale was not registered. While it was in force the defendant published the same subject by chromo- lithography, independently, not directly copying plaintiff's chromo-lithograph. The plaintiff's chromo-Iithograph plate was not engraved with the name of the proprietor or date of pub- lication, as required by 15 & 16 Vict. c. 12, s. 14. It was objected that the plaintiff could not recover damages from the defendant for piracy of his copyright, because first, the plaintiff's (k) iVotktr/c V. Jackson, 11 Q. B. D, (/) Lucas v. Cuvh; 13 Cli, D. 87:2 ; ii 627 (C. A.)." L. '!'• ISO. 310 A TBEATISE ON TOKTS. Chap. XII. chromo was not duly engraved ; and, secondly, there was no registration of the assignment to the plaintiff within 25 & 26 Vict, c. 68. It was held on the first point that the copyright in the origiiaal picture had been violated by the production of the defen- dant's chromo-lithograph, which was not simply an imitation of the plaintiff's chromo-lithograph ; and on the second point that the plaintiff was not an assignee of the copyright within the mean- ing of the 25 & 26 Vict. c. 68, but a licensee to reproduce an imita- tion of the picture, as to whose licence no registration was re- quired (m). Assignment A person to whom the copyright in a picture has been assigned ftougli original ^J ^h© author, of which assignment a memorandum has been duly copyright not registered, has a good title under 25 & 26 Vict. c. 68, s. 1, although the original copyright of the author has not been registered (n). No bnneSt can By s. 4 of 25 & 26 Vict. c. 68 no proprietor is entitled to the the act ii™me benefit of the Act unless his name is duly entered on the register, of proprietor therefore a registered proprietor cannot sue for offences under not on the . -i i ■,• • ii register. the Act committed when an earlier proprietor was on the register (o). Penalties. The Sale of every photographic copy made in violation of the 25 & 26 Vict. c. 68 is the subject of a distinct penalty, although there is only one sale (p). It may be the ground for the infliction of only a nominal penalty, where the defence is that the copy was made or sold under a bondjide belief that the consent of the proprietor of the copyright had been obtained (q). Copyright in The copyright in engravings and prints (r) is secured, under prfnts. ° certain penalties, to their authors- or designers by the statutes 8 Geo 2, c. 13. q q^q ^ (.. 13, 7 Geo. 3, c. 38, and 17 Geo. 3, c. 57, for a period iTGeo.s, >;.57. of twenty-eight years (s) from the day of publication (<)• The piracy of engraving by means of the process of photo- graphy or by any other process, mechanical or otherwise, whereby copies may be indefinitely multiplied, is within the above statutes (ii). (m) Tuck V. Canton, 51 L. J. Q. B. s. 14, to lithographs. 363. («) 7 Geo. 3, c. 38, s. 7 ; 8 Geo. 2, (n) Notlage v. Jackson, stqjfa,. c. 13, s. 1. (o) Eupxiy V. Dilkcs, 48 L. .T. C'li. (I) Graves v. Ashford, L. E, 2 C. T. 682. 410 (Ex. Ch.), affirming Gambart v. (p) Ex parte Beal, L. R. 3 Q. B. Ball, 14 C. B. N. S. 306 ; 32 L. J. 0. 387 ; 37 L. J. Q. B. 161. P. 166. (5) Ex parte Beal, supra. (m) Brooks v. Gock, 3 A. & E. 138. ()■) Extended by 15 & 16 Vict. c. 12, t'OPYRIQHT. 311 No action can be maintained for pirating an engraving or Chap. XII. print, where the date of the first publication has not been engraved ; \ on the print according to 8 Geo. 2, c. 13, s. 1, the performance of TaXmusAe the directions of the statute in that respect being a condition engraved ou precedent to the right of property vesting in the proprietor (,r). In a case where the name of the proprietor appeared thus : — " London : Published by Henry Graves & Company, May 1st, 1861, Printsellers to the Queen, 6, Pall Mall," it was held this was a sufficient compliance with the requii-ement of the statute (xx). Where prints and engravings are the property of a trading firm, the proprietorship is sufficientlj^ designated for the purpose of obtaining the protection of the 8 Geo. 2, c. 13, by printing upon them the trading name of the firm, even though it does not contain the names of all the partners in the business (ij). A person having a copyright in a jsrint or an engraving may Liability of maintain an action under 17 Geo. 3, c. 57, against a person for seller of pirated .... . > ' o 1 enjraving. selung pirated copies of it, although the seller has no knowledge that the prints are piracies {z). It has been held that it is no piracy under 17 Geo. 3, c. 57, l7Geo. 3,c. 5", where the alleged pirated engraving is taken from the original enl^^^n^'s ^ *" plate, as that statute only applies to engravings pirated from pirated from other engravings, and not prints taken from a lawful plate ((()• ing^ ^^^^^ The limitation of three months to any action or suit brought Limitation of under 8 Geo. 2, c. 13, does not apply to an action for damages ^''' '""" given by 17 Geo. 8, c. 57 (h). By the 54 Geo. 3, c. 56, the sole right and property in all new Copyright in and original sculpture, models, copies, and casts is vested in the ^^^ ^^^^'^^' person who makes it or causes it to be made, for the period of fourteen years (c), provided that he puts his name and the date of publication on the work before it is put forth or published (s. 1). The Act further provides a remedy by action, which must be brought within six months after the discovery of the offence, against any person putting forth or importing pirated copies of («) Graves v. Ash/ord, L. E. 2 C. P. 29 L. J. Ex. 98 ; TVcst v. Francis, 5 B. 410 (Ex. Ch.). & A. 737. (x.r) Graves v. Ashford, supra. This (a) Hurray v. Hcalh, 1 B. & Ad. 804 ; is not requisite when the engi'aving Berenger v. Wheehle, 2 Stark. 548. forms part of a book in which there is a (h) Graves v. Mercer, 16 "W. R. 790. oopyiight ; Bogiie v. Houlslon, 5 De G. (c) By s. 6 extended to a further & S. 267. period of fourteen years if the author is [y) Mock V. Lazarus, L, R. 15 Eq. living at the expiration of the first 104 ; 42 L. J. Ch. 105. period. (i) Gamharl v. Sumner, a H. & X. 5 ; 312 A TREATISE ON TORTS. International copyright. Translations from the French. Chap. XII. the work (ss. 3 & 5), and makes provision for the assignment of the copyright by the proprietor (s. 4). By the International Copyright Acts (d), 7 Vict. c. 12, and the 15 & 16 Vict. c. 12 (e), and the orders in council made thereon, the law of copj'right in literary and artistic property, and the law for protecting the representation of dramatic pieces and musical compositions is extended to the works of foreign authors under certain specified conditions (/). ^Vith regard to translations from French books or dramatic pieces, the 15 & 16 Vict. c. 12, s. 8, provides as follows : — " No author or his executors, administrators, or assigns shall be entitled to the benefit of this Act, or of any order in council issued in pursuance thereof, in respect of the translation of any book or dramatic piece, if the following requisitions are not complied with (that is to say) ; — " 1. Tlie original work from which the translation is to be made must be registered, and a copy thereof deposited in the United Kingdom, in the manner required for original works by the said International Copyright Act (g), within three calendar months of its first publication in the foreign country. "2. The author must notify on the title page of the original work, or, if it is published in parts, on the title page of the first part, or, if there is no title page, on some conspicuous part of the work, that it is his intention to reserve the right of translating it. "3. The translation sanctioned by the author, or a part thereof, must be i^ublished either in the country mentioned in the order in council by virtue of which it is protected, or in the British dominions, not later than one year after the registration and deposit in the United Kingdom of the original work, and the whole of such translation must be published within three years of such registration and deposit. " 4. Such translation must be registered, and a copy thereof deposited in the United Kingdom within a time to be mentioned in that behalf in the order by which it is protected, and in the {d} These acts are acts of reciprocity, and by s. 14 of 7 Vict. c. 12 it i.s pro- vided that no order of council is to have efi'ect unless it is stated that reciprocal protection is secured. (e) This Act only affects works pub- lished in France. (/) The International Copyright Acts, and the convention with France and order iu council made thereunder, do not exempt authors of works iu France claiming copyright in this country from the conditions affecting authors of works in the United Kingdom ; Cassell v. Stiff, 2 Kay & J. 279. (?) 7 Vict. c. 12, s. 6. COPYRIGHT. 313 manner provided bj' the said International Copj'right Act, for the Chap. XII. registration and deposit of original works. "5. In the case of books published in parts, each part of the original work must be registered and deposited in this country in the manner required by the said International Copyright Act ■within three months after the first pubUcation thereof in the foreign country. "6. In the case of dramatic pieces the translation sanctioned by the author must be published within three calendar months of the registration of the original work. " 7. The above requisitions shall apply to articles originallj' published in newspapers or periodicals if the same be afterwards published in a separate form, but shall not apply to such articles as oi-iginallv published. A translation such as is required by the Act must be a translation of the whole work ; and it is not sufficient that it be a version which the foreign author may have sanctioned as a translation. Where the oiuginal work sought to be protected was a French comedj' entitled ' Frou-Frou,' and the version sanctioned bj' the foreign authors, and published in England, was entitled ' Like to Like,' the names of the characters and the scenery were changed from French to English ; in some instances English manners were substituted for French ; and considerable omissions of speeches and alterations of passages were made : — it was held that the version was not a translation within the meaning of the Act, such as to entitle the foreign authors and their assignee to the benefit of the statute (/()•" If a foreigner translates an English work, and then an English- Retranslation. man retranslates the foreign work into English, that would be an infringement of the original copyright (i). In order to obtain the protection of the International Copyright Registration of Acts, the literary, dramatic, or musical work must be duly ^"gi^,^^ ''"^^' registered according to the provisions of 7 Vict. c. 12, s. 6. Thus an opera was composed by Offenbach and represented in France, and a pianoforte arrangement by S. was published immediately afterwards. In registei-ing the opera under the International Copyright Act, the name of the opera and of its composer, and the correct date of its first rej^resentation was given, but in addition the date of the publication of the pianoforte (/») Wood V. Chart, L. R. 10 Eq. 193 ; (i) Murray v. Sogue, 1 Drew. 353 ; 39 L. J. Ch. 641. 22 L. J, Ch. 457. 3U" A TBEATISE ON TORTS. Chap. XII. Where no treaty, no in- ternational copyright. arrangement, in which no copyright was claimed, was given, and that arrangement was deposited at the time of the registration, but not the score of the opera itself, which was not printed. It was held that the registration was sufficient to protect the opera in England, and that the validity of the registration was not affected by the addition of the date or by the deposit of the pianofoi-te arrangement (/c). The name of the actual author or composer must be inserted in the registration, otherwise it will be invalid. Thus, N. composed and published an opera in full score at Berlin, and after his death B. arranged the score of the whole opera for the pianoforte ; in registering this arrangement in England N.'s name was inserted as composer.. It was held that tlie arrangement for the pianoforte was an independent musical composition, of which B., not N., was the composer; and that the entry made under 7 & 8 Vict. c. 12, s. 6 was invalid, and gave no title to the assignee of the registered composition (I). By the 7 & 8 Vict. c. 12, s. 19, a British subject, who first publishes abroad, is, equally with a foreigner, deprived of any copyright save such as he may acquire under that Act ; and if there be no treaty in force giving effect to the Act in his particular case, he has no copyright in this country ; and in reference to the right of dramatic representation, first representation abroad is a first publication abroad within the meaning of s. 19. Thus, B. a British subject, brought out a drama in New York ; he after- wards represented it in this country, having duly registered it. There being no arrangement in force between this country and the United States as to International Copyright, it was held that B. had no exclusive right to perform his drama in this country ()«)• (t) Fairlie v. Boosey, i App. Cas. 71] ; 48 L. J. Ch. 697. (1) Wood V. Boosoij, L. R. 3 Q. B. 223; 37 L. J. Q. B. 8i (Ex. Ch.). (ro) BoticicauU v. Belafield, 1 H. & M. 597 ; 33 L. J. Ch. 33. As to domi- cile of author with reference to copy- right, see Jefferys v. Boosey, 4 H. L. Cas. 815 ; 24 L. J. Ex. 81 ; EmUledge v. Low, L. R. 3 H. L. 100. CHAPTER XIII. Chap. XIII. PATENTS, DESIGNS, AND TEADEiEARKS. Section I. — Patents. The law of patents for inventions as it originally stood, rested 21 James I. entirely for support on the statute of James I. c. 3 (a) which was "' ^' declaratory of the common law prerogative of granting patents. After a declaration that all monopolies are void, s. 6 enacts " that any declaration before mentioned shall not extend to any letters patent, and gi'ants of privilege for the term of fourteen years or under, thereafter to be made ; of the sole working or making of anj^ 7ic'(c mumi/actories within this realm to the true and first in- ventor and inventor of such manufactures which others at the time of making such letters patents and grants shall )iot use so as also they be not contrary to the laiu, nor mischievous to the state, by raising prices of commodities at home, or hurt of trade ov generally inconvenient. The said fourteen years to be accounted from the date of the first letters patent or grant of such privilege thereafter to be made, but that the same shall be of such force as thej^ should be, if that Act had never been made, and of none other." From 1G23 until 1883 the statute of James I. was the principal repository of patent statutory law (h) ; in the latter year, however, the patent laws were amended and consolidated by the 46 & 47 The Patents Vict, c. 57, which repealed {inter alia) the statute of James I. Trade^Mark In Parts II. and V. of the 46 & 47 Vict. c. 57 (the Patents, AcVisss. Designs and Trade Marks Act, 1883), will be found the existing *6 & 47 Vict. c 57 statutory provisions affecting patents (c). {a) The Statute of Monopolies (1623) (c) The 46 & 47 Vict. c. 57, s. 113 now repealed by 46 & 47 Vict. c. 57, s. repeals {inter alia) 21 James 1, c. 3 ; 5 & 113, Patents, Designs, and Trade Marks 6 Wm. 4, c. 62, s. 11 ; 5 & 6 Wm. 4, Act, 1883. c. 83 ; 2 & 3 Vict. 0. 67 ; 15 & 16 Vict. (6) In 1835 Lord Brougham's Act, to c. 83 ; 16 & 17 Vict. c. 5 ; 16 & 17 Vict. amend the law touching letters patent c. 115 ; 22 Vict. 0. 13 ; 28 & 29 Vict. c. for inventions, was passed, 5 & 6 Wm. 4, 3 ; 43 & 44 Vict. c. 10, s. 10 ; 45 & 46 c. 83, also repealed by 46 & 47 Vict. Vict, c, 72, s. 16. c. 57. 316 A TREATISE ON TORTS. Chap. XIII, Persons en- titled to apply for patent. Application and specifica- tion. Provisional specification. Complete spe- cification. Reference to examiner. Power of comptroller to require amend- ments in appli- cation, &c. Time for leav- ing complete specification. Comparison of specificatio7is. Advertisement. Opposition to grant of patent. By S. 4, of that statute it is enacted that any person, whether a British subject or not, may make an application for a patent, and that two or more persons may make a joint application for a patent, and a patent may be granted to them jointlj'. S. 5. An application for a patent must be made in the form set forth in the schedule and must be left at the patent office in the prescribed manner. The application must contain a declaration that the applicant is in possession of an invention, whereof he, or in the case of a joint application, one or more of the applicants, claims or claim to be the true and first inventor or inventors, and for which he or they desire to obtain a patent. Such application must be accompanied either by a provisional or complete specifi- cation. A provisional specification must describe the nature of the in- vention, and be accompanied by drawings, if required. A complete specification must particularly describe and ascer- tain the nature of the invention, and in what manner it is to be performed, and must be accompanied by drawings, if required. A specification, whether provisional or complete, must com- mence with the title, and in the case of a complete specification, must end with a distinct statement of the invention claimed. Ss. 6 & 7 give directions as to the reference of the application to an examiner, who is to report to the comptroller as to whether the nature of the invention is fairly described, and as to the sufficiency of the application, specification and drawings. The comptroller may require these to be amended, subject to an appeal from his decision to the law officer of the Crown. S. 8 enacts that a complete specification shall be left within nine months from the date of ap23lication, otherwise the applica- tion shall be deemed abandoned. S. 9 provides for the comparison of the provisional and com- plete specification. S. 10 refers to the advertisement by the comptroller of the acceptance of the complete specification. S. 11 enacts that any person may at any time within two months from the date of the advertisement of the acceptance of a complete specification give notice at the patent office of opposition to the grant of the patent, on the ground of the applicant having obtained the invention from him, or from a person of whom he is the legal representative, or on the ground that the invention has been patented in this country on an application of prior date, PATENTS. 317 or on the ground of an examiner having reported to the comp- Chap. XIII. troUer that the specification appears to him to comprise the same " invention as is comprised in a specification bearing tlie same or a similar title and accompanying a previous application, but on no other ground. The comptroller shall give notice of the opposition to the applicant, and decide on the case subject to appeal to the law officer. S. 12 enacts that a patent shall be sealed within fifteen Sealing of months from the date of application, except in a case where the r^*^"'' sealing is delayed by an appeal to the law officer or by opposition to the grant, in which case it maj' be sealed at such time as the law officer maj' direct. If the person making the application dies before the expiration of fifteen months aforesaid, the patent may be granted to his legal representative and sealed at any time with- in twelve months after the death of the applicant. S. 13 enacts that every patent shall be dated and sealed as of Date of patent. the day of application. Provided that no proceedings shall be taken in respect of an infringement committed before the publi- cation of the complete specification : provided also, that in case of more than one application for a patent for the same invention, the sealing of a patent on one of those applications shall not pre- vent the sealing of a patent on an earlier application. S. 14 gives provisional protection from the consequences of Provisional the use and publication of the invention during the period elaps- "^^^ *" ""'' ing between the date of application and the date of sealing the patent. S. 15 enacts that after the acceptance of a complete specifi- Protection by cation, and until the sealing of the patent, the applicant shall ^""'p'^'s speci- have the same protection as if the patent had been sealed on the date of the acceptance of the complete specification, provided that an applicant shall not be entitled to institute any proceedings for infringement until the patent has been granted him. S. 16 enacts that every patent when sealed shall have effect Extent of throughout the United Kingdom and Isle of Man. P^*«°*- S. 17 limits the duration of a patent to fourteen years from Duration of .. J , patent. its date. Ss. 18 — 21 prescribe the regulations to be observed in a case Amendment of where a patentee is desirous of amending his patent. specification. S. 22 enacts that where a patentee refuses to grant licences Compulsory on reasonable terms, the Board of Trade may on the petition of licences. any person interested grant compulsory licences. 318 A TEEATISE ON TORTS. Chap. XIII. Register of patents. Extension of term of patent on petition to Queen in Council. Revocation of patent. Patent to bind the Crown. Patent for one invention only. Patent may be granted to re- presentative of deceased in- ventor. Patent to first inventor not invalidated by ajiplication in fraud of him. Assignment of patent. Where patent lost, duplicate may be sealed. Miscellaneous provisions. Assignment to Secretary for War of certain inventions. Existing patents. Assignments to be entered in register. S. 23 enacts that there shall be a Kegister of Patents kept at the Patent Office. S. 24 refers to the fees to be paid under the Act. S. 25 contains the provisions as to the extension of term of patent by petition to the Queen in Council. S. 26 enacts that the proceeding by scire facias to repeal a patent is abolished, and that the revocation of a patent may be obtained on petition to the Court. S. 27 enacts that a patent shall bind the Crown, but that any department of the State may use the invention on special terms to be approved of by the Treasury. Ss. 28 — 82 contain provisions as to legal iwoceedings in respect to an action for infringement of a patent. S. 33 enacts that a patent shall be granted for one invention only. S. 34 enacts that if a person j)ossessed of an invention dies without making application for a patent for the invention, appli- cation may be made b}', and a patent for the invention granted to, his legal representative. S. 35 enacts that a patent granted to the first and true inventor shall not be invalidated by an application in fraud of him. S. 36 enacts that a patentee may assign his patent for any particular place in the United Kingdom or Isle of Man, as effectually as if the patent were originally granted to extend to that place only. S. 37 enacts that where a patent is lost or destroyed a duplicate may be sealed. Ss. 38 — 43 contain certain miscellaneous provisions as to the proceedings before the law officers and exhibition of patents, &c. S. 44 provides for the assignment to the Secretary of War of any improvements in instruments or inventions of war. S. 45 makes certain provisions as to patents existing at the time of the commencement of the Act (e). By s. 87, all assignments of patents are to be entered in the register ; and by s. 90, any person aggrieved by any entry or any (e) Dec. 31, 16 PATENTS. 819 omission of an entry in the register may apply to the Court to Chap. XIII. rectify it. It is necessary for an applicant for a patent to show that he is True and first the " true and first inventor'' of the suhject, before a patent for it '"^«"to'- will he granted to him(/). As to what constitutes a true and first inventor, the following observations have been made by the late Master of the Rolls (Sir G. Jessel), in a case which was decided by him in the year 1876 (, i° The meaning of a return of " nulla bona " is that there are no .<;\-„;;„ jo„„ ■■ goods applicable to the plaintiff's writ (0). Xulla bona is a proper return, where the sheriff has paid the proceeds of an execution, either in discharge of rent or of a prior writ (p). In an action against the sheriff, for a false return of nulla bona to plaintiff's writ of Ji. fa. for £125, it appeared that the defen- dant had not levied at all. There were goods of the execution debtor of the value of £50 upon which he might have levied. There were two writs of ./?. fa. against the execution debtor for more than £50 lodged with the sheriff prior to the plaintiff's writ ; but these prior writs were proyed to be fraudulent as against creditors ; the sheriff had, however, no information as to this. It was held that the plaintiff was entitled to recover the £50 ; that it was the sheriff's duty to have levied, and the plaintiff might then have disputed the validity of the prior writs, and so obtained the proceeds of the levy (q). No action will lie against a sheriff for a false return to a fi. fa. No action will , -It 1 1 / \ ' lie in false re- unless special damage can be shown (r). turn, without A " venditioni exponas " is a branch of the writ of ^. fa. and not special damage. a distinct process (s), it is the proper mode of compelling a sale J^"' °^ "vm- by the sheriff of the goods which he has seized under the fi. ponas." fa. it). An application for an attachment can be moved against the Attachment of sheriff for not returning a writ of Ji. fa., but since the Judicature Acts came into operation, such application can only be made on notice to the sheriff, and cannot as formerly be granted as of course (u). sheriff, (1) Pitcher V. Kitig, 5 Q. B. 768 ; Levy (q) Dennis v. Whetham, L. E. 9 Q. v.Hale, 29 L. J. C. P. 127. B. 345 ; 43 L. J. Q. B. 129. (m) Barton v. Gill, 12 M. & "W. 315 ; (r) Levy v. Sale, 29 L. J. C. P. 127 ; 13 L J. Ex. 83. Wylie v. Bircli, 4 Q. B. 566 ; 12 L, J. (n) Reynolds v. Barfm-d, 7 M. & G. Q, B. 260. 449 ; 13 L. J. C. P. 177. (s) Hughes v. Rees, 4 M. & W. 468. (0) Shattoeh v. Garden, 6 Ex. 725 ; 21 (t) Oameron v. Reynolds, Cowp. 406. L. J. Ex. 200. (m) Jiipp V. Cooper, 5 C. P. D. 26. (p) Wintle-f. Freeman, 11 A. & E. Or. XLIV. i: 2, Supreme Court Eules, 539; 1883. A A 854 A TREATISE ON TORTS. Extortion. Action at suit of sheriff. Chap. XIV. An action will lie against a sheriff for extortion in taking greater fees than he is legally entitled to (x). An action will lie at the suit of the sheriff against the execution creditor, for pointing out the wrong goods to be taken under a mitoiji.fa. (y). A sheriff can maintain an action against his deputy for a default of duty in the execution of his of&ce, for which the plaintiff was sued, and had to pay damages {z). Section II. — Interpleader. Interpleader Act, 1 & 2Wm. 4, c. 58, s. 6. For relief of sheriifs and other officers in execiition of process against goods and chattels. In consequence of the difficulties which sometimes arose in the execution of process against goods and chattels issued by and under the authority of the Courts, by reason of claims made to such goods and chattels by assignees of bankrupts and other persons not being the parties against whom such process was issued, whereby the sheriffs and other officers were exposed to the hazard and expeiase of actions, it was deemed reasonable to afford relief and protection in such cases to such sheriffs and other officers (a). It was therefore enacted by 1 & 2 Wm. 4, c. 58, s. 6, that when any such claim shall be made to any goods or chattels taken or intended to be taken in execution under any process, or to the proceeds or value thereof, it shall and may be lawful to and for the Court from which such process issued (b) upon apphcation of such sheriff or other officer made before or after the retm-n of such process, and as well before as after any action brought against such sheriff or other officer, to call before them by rule of Court, as weU the party issuing such process as the party making such claim, and thereupon to exercise, for the adjustment of such claims and the relief and protection of the sheriff or other officer, all or any of the powers and authorities hereinbefore contained, and make 5uch rules and decisions as shall appear to be just, according to the circumstances of the case. {x) See 29 Eliz. c. 4 ; Bertmi v. Law- rence, 5 Ex. 816 ; 20 L. J. Ex. 46. (y) Humphreys^. Pratt, 5 Bligh, N. S. 514 ; see Childers v. Wooler, 2 E. & E. 287 ; 29 L. J. Q. B. 129. (z) Bowdon V. Hall, 4 Q. B. 840. \a) Preamble to s, 6 of X & 2 "Wm. 4, c. 58. (6) By ] & 2 Vict. c. 45, s. 2, any judge may exercise such powers for the relief of sherifls, &c. , as may, by virtue of 1 & 2 Wm. 4, c. 58, s. 6, be exer- cised by the several courts, INTERPLBADEi;. 355 The 23 & 24 Vict. c. 126, s. 12, enables interpleader to be Chap. XIV. granted, though the titles have not a common origin. ^& 24 Viot. S. 13 enables the Court to order a sale and apply the proceeds, c. ]26. S. 14 enables the Court, without any consent, to dispose of small claims in a summary way. S. 15 enables the Judge to decide questions of law without directing an action or issue, if the facts are not in dispute. S. 17 makes the judgment in an issue which had been directed, and the decision of a Court or Judge in a summary manner, con- clusive against all the parties. It has been held that s. 17, making a summary decision under the Act final and conclusive against "the parties," does not make it final against the sheriff who can appeal (c). By the Eules of the Supreme Court, 1883, 0. LVII. r. 1 (b). Supreme Court where the appKcant is a sheriff or other officer charged with the q''']^^;; \^*i!3 execution of process by or under the authority of the High Court, and claim is made to any money, goods, or chattels, taken or intended to be taken in execution under any process, or to the proceeds of or value of anj' goods or chattels by any person other than the person against whom the process issued. E. 2. The applicant must satisfy the Court or a judge bj^ affidavit or otherwise — (a) That the applicant claims no interest in the subject- matter in dispute, other than for charges or for costs ; and (b) That the applicant does not collude with any of the claimants ; and (c) That the applicant is willing to pay or transfer the subject-matter into Court, or to dispose of it as the Court or judge may direct, R. 3. The applicant shall not be disentitled to relief by reason only that the titles of the claimants have not a common origin, but are adverse to and independent of one another. Where an execution has been levied and a landlord makes a Interpleader claim upon the sheriff for rent, which the execution creditor has to°claims fw" ^ not expressly disputed, although the claim may be disputable, rent. whether as regards the amount due (on the construction of the lease) or as regards the liability of the property which has been seized in distress, the sheriff is not entitled to an interpleader, at (c) Smith V. Barlow, 25 Ch. D. 605 Cotton and Bowen, L.JJ. ; Fry, L.,T., (C. A.). So held by majority of Court, dis. A A 2 356 A TREATISE ON TORTS. Application must be made promptly. When it should he made. Chap. XIV. all events, unless the landlord claims any part of the propertj% In no case where there is a claim for rent can there be an inter- pleader (d). The sheriif must come for relief promptly after he has notice of the claim, unless the delay can be satisfactorily accounted for (e). Thus, where the sheriff took possession under a.Ji. fa. in November, and a few days afterwards, had notice that the goods belonged to a trustee, and kept possession until the 28th January, and did not apply to the Court until the ensuing Easter Term ; it was held that an interpleader, at the instance of the sheriff, could be granted only upon paying the costs of both the other parties, as the sheriff ought to have applied in the term next after the claim was made (/). The sheriff must apply before the goods are sold and the pro- duce paid over, whether at the time he knew of the claim or not ((/) ; and if he deliver up the goods or any part of them to the claimant, he precludes himself from relief under the Statute, for by such conduct the object of the Act, viz., to determine in one action the right of property in the goods, is thereby defeated (h). The sheriff need not wait for legal proceedings to be taken against him, before he applies for relief (i). A sheriff is entitled to call upon the execution creditor and claimants to interplead, unless he has acted dishonestly, or his conduct has prejudiced either of the parties. The fact therefore that the sheriff had, down to the time of the seizure of the execu- tion debtor's goods, acted as the attorney of a claimant, and had given him notice of the execution, is not alone sufficient to pre- vent his calling on the parties to interplead (k). Where, how- ever, an under-sheriff who was acting as attorney for certain creditors of the defendant, informed them of a Ji. fa. at the suit of the plaintiff having been placed in his hands to execute, by which means the issuing of a fiat in bankruptcy against the defendant was accelerated, arid the plaintiff's execution thereby defeated, the Court refused to grant the sheriff rehef (Z). When sheriff entitled to relief. (d) Bateman v. JFarnsworth, 29 L. J. Ex. 365. (e) Devereux v. John, 1 Dowl. P. C. 548 ; Oook v. Allen, 1 0. & M. 542 ; Skipper v. Lam, 4 M. & S. 283. (/) Beale v. Overton, 2 M. & W. 534. (g) Anderson v. Calloway, 1 C. & M. 182 ; Scott V. Lewis, 2 0. M. & E. 289 ; Ireland v. Bushell, 5 Dowl. P. C. 147. (h) Braine v. Hunt, 2 C. & M. 418. (i) (xreen v. Brovm, 3 Dowl. P. C. 337. W Holt V. Frost, 28 L. J.' Ex. 55 ; 3 H. & K 821. (I) Cox V. Bahie, 2 Uowl.& L. 718 ; 14 L. J. Q. B. 95, INTERPLEADEE. 357 Where the sheriff seized goods under a fi. fa., and a person Chap. XIV. other than the person against whom the process issued claimed the goods and paid out the sheriff under protest ; it was held that the money so paid to the sheriff under protest was the jproceeds of goods taken in execution within the meaning of Order LVII. r. 1 (b), of the Rules of Supreme Court, 1883, and therefore that the sheriff was entitled to interplead in respect thereof (?h). Where the sheriff in the execution of a fi.fa. enters the premises of a person other than the execution debtor and there seizes goods believing erroneously that such goods belong to the execution debtor, the sheriff may, upon interpleader proceedings, be protected against an action for trespass to the land as well as against an action for seizure of the goods, if no substantial grievance has been done to the person whose premises are wrongfully entered (mm). "When the sheriff is placed in cii'cumstances which give him an Not, when iu- interest in either side, the Court will not relieve him ; thus the Court refused to interfere in favour of the sheriff, where the under-sheriff's partner appeared to be concerned for some of the parties (n). So if the under-sheriff is the execution creditor, or partner in business with the execution creditor, the sheriff is not entitled to relief (o). The Court has power to give the sheriff relief, although the Infant claim- claimant is an infant (p). A judge on an interpleader order has authority to restrain an Stay of pro- action against the execution creditor, as well as against the ""^^ '°°^' sheriff (q). Thus, a sheriff entered the house of A, and seized therein his goods, and also goods belonging to the execution debtor. A. brought an action against the sheriff, who thereupon obtained an interpleader summons, and the judge ordered that the execution creditor be bound as to the goods of A., and that all further proceedings be stayed. It was held that the judge had power to stay proceedings, and the power was properly exercised, it not appearing that the sheriff had committed any excess (r). The sheriff will be allowed his costs of keeping possession, after Expenses of sheriff. (m) SmUh v. CrUchfidd, 14 Q. B. D. 698. 873(0. A.). (?) Car2}enter V, Pearce, 27 h. J. Ex. (mm) Smith v. Critchfield, supra. 143. (re) Duddin v. Long, 1 Bing. N. C. ()•) Winter v. Bartliolomew, 25 L. J 29<,). Ex. 62 ; 11 Ex. 704 ; seeffillsv. Benny, (o) Ostler V. Bower, 4 Dowl. P. C. 605. 5 Ex. D. 313. {p) Olaridge v. Collins, 7 Dowl. P. C. 358 A TREATISE ON TORTS. Position of sheriff, when neithe r plaintiff nor claimant appears. Appeal. Chap. XIV . applying to the Court, where it is for the benefit of the parties, although not in furtherance of his duty (s). Where neither the plaintiff nor claimant appears, the Court will discharge the sheriff from actions by either of those parties, and permit him to levy his poundage and expenses, and abandon the remainder of the levy (i). Where it is sought to impeach the judgment of a judge on trial of an interpleader issue with respect only to the finding of the facts or the ruling of the law, and not with respect to the final disposal of the whole matter of the interpleader proceedings (u), an appeal will lie upon such judgment under s. 19 of the Judicature Act, 1873, 36 & 37 Vict. c. 66, as it will from any judgment or order of a judge (x). An execution creditor is not liable to the person whose goods have been wrongfully taken in execution for any damage sustained by him in consequence of their sale under an interpleader order (t/). Sale under interpleader order. (s) Undnrden v. Burgess, 4 Dowl. P. C. 104. (t) Evoleigh v. Salisbury, 3 Bing. N. C 298 (tt) SeeOrd. LVII. r. 13. (x) Dawson v. Fox, 14 Q. B. D. 377 (C.A.). See also BoHiison v. Tucher, 14 Q. B. D. 371 (C.A.). (y) Walker v. Oldmg, 1 H. & C. 621 ; 32 L. J. Ex. 142 ; JToolen v. Wright, 31 L. J. Ex. 513. CHAPTER XV. Chap. XV. MANDAMUS. The prerogative writ of mandamus is a higli prerogative writ Wiitof man- of a most extensive remedial nature^ and is in its form a com- ^™"^' mand issuing in the Queen's name, from the Queen's Bench Division of the High Court of Justice, and directed to any person, corporation, or inferior Court of Judicature, within the Crown's dominions, requiring them to do some particular thing Where it lies. therein specified, which appertains to their office and duty, and which the Com-t has previously determmed, or at least, supposes, to be consonant to right and justice {a). Whenever there is a public or of&cial duty, or a duty created bj' statute, a mandamus will He, even when no actual damage has been suffered by the applicant (6). A writ of mandamus will not be granted to enforce the general law of the land, if an action will He (c), or if there is some other more effectual and more convenient remedy (d). Thus a railway Act enacted, that the company estabhshed by it should, in a given event, pay another company a sum not exceeding a given amount, by way of compensation for the loss of toUs by the latter company. The given event having happened, it was held that a mandamus was not the proper mode of compelling the payment of the compensation money, as an action would He on the statutory obHgation (e). So where a mandamus was applied for against justices in a case in which an appeal lay to Quarter Sessions, the Court refused to grant it (/). Where there is an effectual remedy for a private wrong, as by Where other an action for damages, a mandamus will not lie. Thus where a me^dy"manda- mus does not lie. (a) See 3 Black. Com. 697 ; Tapping C. 500. on Mandamus. (c) Reg. v. Hull tfc Selhy Rail. Co. , 6 (J) FotTierby v. Met. Rail. Co., L. R. Q. B. 70 ; 13 L. J. Q. B. 257. 2 C. P. 188. (/) Reg. v. iSmUh, L. R. 8 Q. B. 146 ; (c) Ux parte Robins, 7 D. P. C. 566. 42 L. J. M. C. 46 ; see Reg. v. Birmi, 14 (d) Per Hill, J., m re Barlow, 30 L. Q. B. D. 474. J. Q. B. 271 ; Bmh v. Beavan, 1 H. & 360 A TREATISE ON TORTS. Chap. XV. party-wall had been pulled down, and rebuilt under the Metro- politan Building Act, but the paper and decorations had not been replaced by the defendant ; it was held that a mandamus, on the application of the tenant of the adjoining house, would not lie to replace the paper and decorations, but that the remedy must be by action {g). There must be In addition to the absence of any other eifectual remedy, there tioMn ordCT to ^^^^ ^^^o be a Specific legal right, to authorize the issuing of a obtain man- maudamus Qi). In a case where an officer applied for a manda- mus against the East India Company to compel them to pay over to him certaiu arrears of pay, Lord Campbell, C.J., in delivering the judgment of the Court, says (t), " The applicant must make out that there is a legal obligation on the East India Company to pay him the sum he demands, and that he has no remedy to recover it by action. The latter point becomes material only when the former has been established, for the existence of a legal right or obligation is the foundation of every _ writ of mandamus ; but it seems to us that the attempt to shew that there was any obligation on the East India Company which the law will enforce to pay any sum of money to Sir Charles Napier, either as commander of the Queen's forces, or as commander of the native troops, has entirely failed. A legal obligation which is the proper substratum of a mandamus, can only arise from common law, from statute or from contract. Of course the obligation here contended for cannot arise from the common law, and is not rested on contract. We have, therefore, to see whether there be any enactments of the legislature by which it can be supported. It was not contended that an officer in the Queen's army at home could apply to us for a mandamus on the ground that his pay is improperly withheld from him ; and the application is entirely founded on certain statutes respecting the East India Company and the government of the dominions belonging to the Crown in India." The Court came to the conclusion that there was no statutory obligation upon the Company to pay the amount claimed, and refused a writ of mandamus ; holding that the grant of pay was an imperfect obUgation which wanted the vinculum juris, although binding in {g) Rsg. V. Pmuford, 12 L. J. Q. B. (t) Ex parte Napier, 21 L. J. Q. B. at 813 ; i D. & L. 116. p. 333. The court consisted of Ld. (A) B.Y. Nottingham Waterworks Co., Campbell, C.J., Coleridge, J., Erie, J., 6 A. & E. 355. and Crompton, J. MANDAMUS. 361 moral equity and conscience, but of which the performance is to Chap. XV. be sought by petition, memorial, or remonstrance, not by action ~~~~ or by proceeding by mandamus in a Court of law (A). In the case of Rex v. Lords of the Treasury {I), the Court granted a mandamus to the Lords of the Treasury to pay the applicant the arrears of a pension granted by the Crown for services, but " this decision," observes Lord Campbell, C.J. (»i), " went entirely on the ground that the Lords of the Treasury had admitted that they had in their hands the sum of money in question, and that they had appropriated it to his use." Cockburn, C.J., refers to this decision (?() as " a case of very doubtful authoritj'. It rests after all, as is to be found in a subsequent dictum in this Coiu't, upon a particular clause in the then existing statute, 4 & 5 Wm. 4, c. 15, s. 13, and I doubt very much whether the section of that statute upon which the decision is supposed to rest would really support it ; but be that as it maj'', that statute has been repealed (o)." In a case where a writ of mandamus was applied for by the Treasurer of a county to compel the Lords of the Treasury to issue an order for the payment of the costs of certain criminal proceedings, it was held that a mandamus would not lie, inas- much as the Lords of the Treasury received the money, which was granted to Her Majesty, as servants of the crown, and no duty was imposed upon them as between them and the persons to whom the money was payable (p). " The general principle," observes Blackburn, J., in the course of his judgment (q), "not merely applicable to mandamus but running through all the law, is that where an obligation is cast upon the principal and not upon the servant, we cannot enforce it against the servant as long as he is merely acting as a servant. To take a familiar instance, if a mandamus were applied for against the secretary of a railway company to do something, it would not be granted, merely because the railway company, his masters, had an obligation to perform the duty, and it makes no difference that the master, or the principal, or the sovereign is only suable by petition of right. (h) See judgment of Tindal, C.J., in L. E. 7 Q. B. at p. 395. Gibson v. The East Iiidia Co., 5 Bing. (o) See TU Queen Dowager's Case, 16 N. C. 262 ; 8 L. J. C. P. 193. Q. B. 357 ; 20 L. J. Q. B. 305. II) 4 A. & E. 286. {p) Reg. v. Lords of the Treasury, L. (m) Ex parte Napier, 21 L. J., at p. R. 7 Q. B. 387. 335. {?)Atp. 398. (ra) In Beg. v. Lords of the TreoMcry, 362 A TREATISE ON TORTS. When indict- ment also lies. Chap. XV. or perhaps not at all. There is the familiar instance of the surveyor of highways, who is the servant of the inhahitants of the parish; the inhahitants of the parish cannot he sued because they are not a body corporate, but the surveyor of the highways is not to be responsible for the non-performance of their duties, or the negligence of their servants, though he is the person who acts for them. The same principle applies to mandamus, if the duty is by statute, though perhaps ' duty ' is hardly the word to employ with regard to Her Majesty ; where the intention of the legislature shews that Her Majesty should be advised to do a thing, and when the obligation, if I may use the word, is cast upon the servants of Her Majesty so to advise, we cannot enforce that obHgation against the servants by mandamus, merely because the sovereign happens to be the principal (r)." It is no objection to granting a mandamus to do a particular act, that an indictment will also lie for the omission to do that act (s). Thus where a dock company was under a statute bound to make and maintain in good condition a new channel, it was held that a mandamus would lie to compel the company to repair the channel, although there might be another remedy by indict- ment (i). A writ of mandamus is a prerogative writ and not a writ of right, and it is in this sense in the discretion of the Court, whether it shall be granted or not. The Court may refuse to grant the writ not only upon the merits, but upon some delay, or other matter, personal to the party applying for it ; in this the Court exercises a discretion which cannot be questioned. So in cases where the right, in respect of which a rule for a mandamus has been granted, upon showing cause appears to be doubtful, the Court frequently grants a mandamus in order that the right may be tried upon the return, but this is a matter entirely within the discretion of the Court (u). A mandamus will not go, unless it is clear that there has been a direct refusal to do that which it is the obj.ect of the mandamus to enforce either in terms or by circumstances which distinctly (iranting man- damus, discre tionary. Only granted where refusal to perform act. r) See Baron de Bode's Case, 6 Dowl. P. C. 776. (s) R. V. Severn & Wye Bail Co., 2 B. & A. 646. {t) Beg. V. Bristol Dock Co., 2 Q. B. 64. (u) R. V. Brecknock Caiial Co., 3 A. & E. 217 ; B^g. v. Bristol olgellyUnion[Oi.i,ardians), (CKuirdians), 17 Q. B. 149. 8 A. & E. 561 ; Reg. v. Derhij {Council- (m) M. v. Norwich (Mayor), 1 B. & lors), 7 A. & E. 419. The office of clerk Ad. 310. to the guardians of a union, appointed (n) Seg. y. Leeds (Mayor), 11 A. & E under 4 & 5 Wm. 4, c. 76, s. 46, is a 512. public office created by statute, and (o) .Ex parte Buller, 1 Jnr. N. S. 709. so may be the subject of a mandamus ; MANDAMUS. 371 By the 21 & 22 Vict. c. 98, s. 29, if a medical practitioner Chap XV. shall, after due inquir}^, be judged b.y the general medical council to ~ have been guilty of infamous conduct in any professional respect, they may, if they see fit, erase his name from the register ; and where a medical man has been so adjudged guiltj' by the general medical coimcil, and his name erased from the register, a mandamus will not lie to restore it (p). A mandamus lies after an election merely colourable and clearly void((j'). The mere rejection of votes, however, is no ground for a mandamus, unless it can be shewn that the number of votes rejected was sufficient to have turned the election (r). Where an office is full by the appointment of the person who pvhnd facie has the right of appointment, and where there are means of trying the title by action, the Court will not grant a mandamus against the party filling the office, in order to try the title (s). A writ of mandamus will lie to justices of the peace (i), recorders Mandamus to of boroughs, courts of quarter session, and the judges of inferior pea*e™and^a^° courts of record, upon their refusal to hear and adjudicate upon ferior Courts. any complaint or matter brought before them, in consequence of an erroneous view of the law, or the extent of their powers or jurisdiction (it). But where they have entered upon the matter and given a decision, that decision cannot be the subject of a mandamus, but only of appeal (x). " The Court of Queen's Bench," observes Cockburn, C.J., " has never in cases of applica- tions for a mandamus to judges or Courts of a judicial character assumed a power to do more than direct them to hear and decide; it has never dictated to them in what manner they are to decide (^)." (p) Ex parte La Mert, 33 L. J. Q. B. L. E. 9 Q. B. 64 ; but now a ivider 69 ; 4 B. & S. 582. construction has been put upon tbe (q) R. V. Cambridge [Mayor), 4 Burr. statute ; see Reg. v. Biron, 14 Q. B. 2008. D. 474 ; and Reg. v. Phillimore, 14 (r) Ex parte Joyce, 23 L. J. M. C. Q. B. D. 474 n, where Ld. Coleridge, 153. C.J., observes, "We are disinclined to (s) R. V. Stoke Dainerel (Minister), 5 lay down an absolute rule as to when the A. & E. 584. proceeding should be by rule under 11 & (t) By s. 5 of 11 & 12 Vict. c. 44, 12 Vict. c. 44, =. 5, and when by more simple means have been provided mandamus." for proceeding against justices than by (v,) Reg. v. Richards, 5 Q. B. 932. mandamus. It was at one time con- (x) Reg. v. Leicester (Deputies), 15 Q. sidered that this enactment only applied B. 674. to cases where the justice required pro- (y) Ex parte Cook, 29 L. J. Q. B. at tection in respect of the act he was p. 69. required to do ; see Reg. v. Percy, B B 2 372 A TREATISE ON TORTS. Chap, XV. If on application to justices for a summons for an indictable offence, they have heard and determined the application, and on the merits have declined to grant it, the Court will not grant a mandamus to compel them to review their decision. But if they have refused to hear the application, or if, after hearing, they have refused to grant it from a mistaken view of their duty, amounting to a declining of jurisdiction, a mandamus will lie (2). The remedy by rule, under 11 & 12 Vict. c. 44, s. 5, does not give the Court power to grant a rule where, before, the Court could not issue a mandamus (a). Where Justices Where justices have not exercised a discretion, the Court will have not exer- , . , . , cised a disore- Compel them to do so. ''""• Upon an application to justices for summonses against certain persons to answer a charge of conspiracy to break the peace, and do grievous bodily harm at a public meeting, evidence was given that a disturbance had arisen at the meeting in which the defend- ants took part, and that one or other of them had previously offered money to different persons if they would commit acts of violence at the meeting. The justices, after hearing the evidence, declined to issue the summonses, and a rule nisi for a mandamus having been obtained, they stated in their affidavit, that upon the facts brought before them, they did not feel justified in granting the application, but did not say that they thought the witnesses unworthy of credit. It was held that the rule must be made ab- solute, for, although under 11 & 12 Vict. c. 42 (Jervis' Act), s. 9, the justices are to issue their summons " if they shall think fit," it was here evident that they had not exercised a discretion (6). An extra-parochial place having become a parish, and by order of the Poor Law Board added to a union, a contribution order was made by the guardians of the union upon the overseer. Upon his refusal to pay, the guardians applied to the justices for a summons under 2 & 3 Vict. c. 84, s. 1, which empowers them, if they shall think fit, to issue their warrant for levying the amount. At the hearing, the only ground which the overseer urged against the issuing of the warrant was, that as the parish had not at any time any paupers chargeable to it, it was unjust and unreasonable that the ratepayers should be called upon to pay anything towards the expenses of the union. The justices (s) See Heg. v. Fawcdt, 11 Cox, C. C. 426 n. 305. (J) Reg. v. Adameon, 1 Q. B. D. 201 ; {a) Beg. v. Bristol {Justices), 18 Jur. 45 L. J. M. C. 46. diction. MANDAMUS. 373 refused to issue their warrant, adding that they did so in the Chap. XV. exercise of their discretion. Upon application for a rule on the justices to issue their warrant, the Court made it absolute, with costs (c). Where justices have improperly declined jurisdiction the Court DecMningjur: will interfere by mandamus, or by rule under 11 & 12 Vict. c. 44, to compel them. Thus, a party was summoned before justices upon an information under 18 & 19 Vict. c. 108, s. 11, charging that he "being one of the owners and managers" of a coUierj'-, had worked the colliery without providing the boiler with a proper steam-gauge, as required by s. 4. In defence, he contended that, as there were other owners, they ought to be charged with him ; but he did not deny that he was resident owner, and took an active part in the management. The justices, upon this objection alone, dismissed the complaint, considering the information to be bad on the face of it, because it shewed that there were other owners. A mandamus was granted, commanding them to hear and determine the information ; for, first, the objection was invalid ; and secondlj', the justices had not exercised jm'isdiction, but had declined it, the objection being prelimuiary, though taken in defence, and not at the outset (rf). If an assistant overseer apprehends a man for running away and leaving his wife and children chargeable to the parish, and by direction of the parish officers, brings him before a magis- trate, and charges him with such desertion, the magistrate ought to hear and determine the matter of the complaint, and is not justified in refusing to entertain it because the pro- ceedings have been taken without the direction of the board of guardians (e). It must be quite clear that the justices refused to adjudicate, otherwise the Court will not interfere. Thus a magistrate, upon a complaint regularly held before him, gave his opinion against the complainant, but at the request of the complainant refused to adjudicate, for the purpose of enabling the complainant to take the opinion of the Court of Queen's Bench. The defendant objected, and wished the magistrate to adjudicate and dismiss the (c) Beg. V. Boteler, 4 B. & S. 959 ; 33 B. 877. L. J. M. C. 101. (e) Reg. v. Mirehouse, 32 L. J. M. C, {d) Reg. v. Brown, 7 E. & B. 757 ; 26 90. L. J. M. 0. 183 ; Beg. v. Bingham, 4 Q. 374 A TEEATISE ON TORTS. Chap. XV. complaint. It was held that there was no such refusal to adjudicate as to entitle the complainant to a rule (/). So, by 18 & 19 Vict. c. 120, the vestry of a parish may pave any new street, and the owners of the houses forming the street shall, on demand, pay to the vestry the amount of the estimated expenses, such amount to be recovered before two justices on summons, who are to hear and determine the matter, and to make such order as to costs and otherwise as to them seem just. The owner of houses in a street having been summoned before a magistrate to shew cause why an order for the payment of his share of the estimated expense of paving the street should not be made upon him, the magistrate, after hearing the evidence, dismissed the complaint, on the ground that the street having been dedicated to the ijublic as a highway before the Act, was not a new street within the meaning of it. On a motion calling on the magistrate to shew cause why he should not hear and adjudicate, it was held that he had done so, and that the Court could not interfere (^f). issue^warrant Justices in issuing a distress warrant for the recovery of poor rates have no power to order that the execution of the warrant shall be delayed. The justices upon due application for a distress warrant are bound to grant it, and place it at the disposition of the overseers. They have nothing to do but to act ministerially, as a kind of sheriff in the execution of the process {h). Where magistrates have convicted of penalties on matters within their jurisdiction, and the convictions are regular in form, and there is no legal reason shewn why the parties convicted have not paid the penalties, the Court will grant a rule to the magistrates to issue warrants to levy the amounts, and the magistrates have no discretion to refuse to do so, on the ground of some supposed hardship in the number of convictions or the amount of the costs (i). (/) Beg. V. Paynter, 7 E. & B. 328; diction of such justices. 26 L. J. M. 0. 102. {h) Beg. v. ffandsley, 7 Q. B. D. {g) Beg. v. Dayman, 7 E. & E. 328 ; 398 ; see Beg. v. Fordham, L. R. 8 Q. 26 L. J. M. C. 128. So held by the B. 501 ; 42 L. J. M. C. 153 ; where the majority of the court, Erie, J., diss. See issuing of a distress warrant by justices Reg. V. Hutchings, 6 Q. B. D. 300, against an assistant overseer for poor where the Court of Appeal held that an rates was held not to be a mere adjudication by the justices, that a street ministerial act on their part, was a highway repairable by the in- (i) In re Sartley, 31 L, J. M. G, habitants at lai'ge, was beyond the juris- 232, MANDAMUS. 375 Where the Court of Quarter Sessions decide, on a point pre- Chap. XV. liminary to the whole case or to the reception of a particular piece jij^amus to of evidence, that they will not hear the case further, this is con- Quarter Ses- clusive of the point involving matter of fact only ; it is otherwise mi'narnidnVof if it raises a point of practice which the Court can perceive to be P™<=*i<:<'- matter of law. In the latter case the Court will grant a mandamus to enter continuances and hear the appeal (k). Where, on an appeal against a poor-rate to the sessions, the justices allowed the appellant to act upon the practice which then prevailed, by which the appeal was postponed till the next sessions, and the justices at those sessions, on an objection made to such practice, refused to hear the appeal, the Court issued a mandamus to compel them to do so (l). Although the Court of Quarter Sessions has no power of its Correction of own authority to erase an entry from the record of a past sessions, record."^ yet a mandamus will go directing such erasure in the case of an entry which is manifestly false, and made without jurisdic- tion (m). When the order of sessions has been duly recorded, it is too late to inquire whether it did or did not represent the opinion of the majority of the justices {71). The Court of Quarter Sessions cannot be compelled by man- damus to decide in a particular way (0). Neither will the Court interfere by way of mandamus, where the sessions has decided a case on its legal merits. Thus, where on an appeal against a conviction coming on for hearing at the sessions, objection was taken to the conviction by reason of the omission of certain words alleged to be material, and the justices, after discussion, quashed such conviction, declining either to amend or hear the evidence, the Court held that they had no power to interfere bj"^ mandamus, there having been a decision on the legal merits (p), " If thej^ " (the magistrates), observes Lush, J. (q), in his judgment in this case, " decided upon the merits of the ajjpeal, the legal merits, or the merits of the matters of fact, we cannot order them to rescind their decision. We are not a Court of Appeal from (it) Beg. V. KesUteii {Justices), 3 Q. B. (m) In re Slmle, 2 Q. B. D. 516 ; 46 810 ; Reg. v. Flintshire {Justices), 16 L. L. J. M. 0. 225. J. M. C. 55. (0) JReg. v. Middlesex {Justices), 9 A. & (I) B. V. Wiltshire (Justices), 8 B. & E. 540. C. 380. (p) In re Slade, supra. (m) Reg. v. West Biding of York. (?) 2 Q. B. D. at p. 521. (Jiistices), 12 L. J. M. C. 148. 876 A TREATISE ON TORTS. Chap. XV. Granting case. Admission of evidence. Mandamus does not lie to the Central Criminal Court. Proceeding against County Court Judge under 19 & 20 Yict. c, ins, s. 43. decisions of the magistrates, and however erroneously they may have decided, we have no power to interfere." Where the sessions on determining an appeal have granted a case, but none has been stated, the Court will, under some circumstances, direct a mandamus to the justices who heard the appeal, to state a case. But not where it is clear that such a proceeding could lead to no result, as where the chairman, in consequence of his own opinion and that of the Court upon the facts, refused to sign any statement but one which would have excluded the point of law relied upon by the party demand- ing the case (r). Where the' Quarter Sessions dismisses an appeal subject to a case, the Court will not grant a mandamus to enter continuances, and hear the appeal (s). In a case where justices at sessions had heard witnesses in an appeal on one side, and refused to hear those on the other, on the ground that their testimony had been prefaced by observa- tions on the part of their advocate contrary to their usual practice, the Court refused to grant a mandamus to rehear the appeal (t). A party having been convicted of forcibly passing a turnpike gate without paying toll, the sessions, on appeal, rejected evidence to show that the gate had been unlawfully erected ; and the Court refused a mandamus to compel the sessions to receive such evidence, the admissibility of it being exclusively a question for the justices (u). Mandamus does not lie to the judges and justices of the Central Criminal Court, which is a superior Court (x). By the 19 & 20 Vict. c. 108, s. 43, it is enacted that no writ of mandamus shall henceforth issue to a judge or officer of a County Court for refusing to do any act relating to the duties of his office ; but any party requiring such act to be done may apply to any Superior Court or judge (y) thereof, upon an affidavit of the facts, for a rule or summons calling upon such judge or officer of (r) B. V. Suffolk (Justices), 6 A. & E. 109. (s) R. T. Suffolk (Justices), supra. (t) R. V. Carnarvon (Justices), 4 B. & A. 86. (u) R. V. Oamhridgeshire (Justices), 1 D. & E. 325. (a:) Reg. v. Central Criminal Court, 11 Q, B. D. 479 ; 52 L. J. M. C. 121, (y) See 21 & 22 Vict. c. 74, s. 4. Ac- cording to the present practice the appli- catioa should be made to a divisional court of the Queen's Bench Division, and if the divisional court is not sitting, then to the judge at chambers ; see Ex parte EllersMw, 1 Q. B. T). 481 : 45 L. J. M. C. 163, MANDAMITS. 377 a County Court, and also the party to be affected by such act, to Chap. XV. show cause whj' such act sliould not be done. The Court will not grant an ordei" under the 19 & 20 Vict. w'i,at refusal c. 108, s. 43, to compel a County Court judge to do his duty, unless Justifies. it appears that he has absolutely refused to act in some matter wherein he ought to have acted. A mere qualified or temporary refusal, as by suggesting an adjournment, with a view to an aiTangement, is no ground for issuing such an order, which, being of the same nature as a mandamus, is to be governed by similar rules (z). A request to a County Court judge, at the commencement of the trial, and before any specific question of law has been raised, that he should take a note of the evidence, as it was an important case and might go to the Superior Court, is not a sufficient request .within the meaning of s. 6 of the County Com'ts Act, 1875 (ft) ; and therefore a note which the judge afterwards took, and which he stated was an incomplete one, and not such as he would have taken if he had been requested to take a note of any specific question of law and of the evidence in relation thereto, is not a note taken under that section which the Court will order him to sign (h). The High Court of Justice has no power to order a County Court judge to re-enter a cause on his list (c). MTiere a County Court judge is bound to discharge judicial functions, but the matter is one which does not come within the ordinary jurisdiction of a County Court judge, it is not a case for an order under the 19 & 20 Vict. c. 108, s. 43 ; but the appropriate remedy is by mandamus. Thus, by a local Act it was enacted that " any dispute which might from time to time arise between the sewers board and any local authority with respect to the carrying into effect the provisions of the act or incidental thereto, might, at the instance of either party, be referred to the judge for the time being of the Sussex County Court, who should hear and determine such dispute, and whose decision should be final and conclusive." A dispute having arisen between the sewers board (z) 38 Si 39 Vict. o. 50. stitutes such rule for a mandamus to the (a) Irving v. Askew, 20 L. T. 584. county court judge. Morgan v. Rces, The right of appeal from an order of a 6 Q. B. D. 508 ; 50 L. J. Q. B. 491 divisional court, discharging a rule for (C. A.) an order on a county court judge to hear (i) Morgan v. Bees, supra. an action, is not taken away by s. 43 (c) Morgan v. Rees, 50 L. J, M. C. pf 19 & 20 Vict. c. 108, which sub- 27. 378 A TREATISE ON TORTS. Chap. XV. and one of the local authorities with respect to the mode of carrying out the provisions of the act, and the sewers board requiring it to be referred to the County Court judge, it was held that the County Court judge was bound to hear and determine the matter, and that mandamus was the proper course to compel him to do so, and not a rule or order under the 19 & 20 Vict, c. 108, s. 43 — this not being a matter within his ordinary juris- diction, but a special duty imposed on him by statute (d). Mandamus to By the Operation of 30 & 31 Vict. c. 142, ss. 34, 35 (e), the Crnrt^ ^'"'^°° ^^*y °^ London Court is made a County Court for aU purposes, and all the County Court Acts apply to it ; consequently, the proper mode of proceeding against a judge of the City of London Com-t is by rule under 19 & 20 Vict. c. 108, s. 43 ; and the proviso in s. 35, reserving all rights and privileges of the judge, has no application to the case (/). (d) Re Brighton Sewers Act, 9 Q. B. (/) Blades v. Lawrence, L. R. 9 Q. D. 723. B. 374 ; 43 L. J. Q. B. 133. (e) County Com-ts Act, 1867. CHAPTER XVI. COSTS. Chap. XVI. The Statute of Gloucester, 6 Edw. 1, c. 1 (a), is the foundation The Statute of of the common law jurisdiction as to costs, and hy that statute Edw.T c!'l. it was enacted that in any action where the plaintiff recovered damages, he should also recover costs (b). From that general rule, however, certain statutes (c) made several exceptions in particular cases. Thus by the 21 James 1, c. 16, s. 6, it was enacted that where a person had obtained a verdict and recovered damages less than 40s. in an action of slander, he should have no more costs than damages. So in the 30 & 31 Vict. c. 142, the County Courts Act, 1867 (an Act passed for the purpose of ^Xi^gg*^;""^' discouraging persons suing in the superior courts instead of suing & 31 Vict. u. in the County Courts), there is an enactment in general terms that, where a party recovers less than a specified sum in tort, he shall have no costs at aU, unless he shall obtain a certificate from the judge before whom the action was tried. By the Judicature Act, 1875, 0. LV., the Legislature gave a Judicature direct authority to all the judges of the Courts constituted under q°^ -^ jt?' the Judicature Act, and vested in them a discretion which was to guide and determine them, according to the circumstances of each case, in the disposition of costs. Costs are now regulated by the Eules of the Supreme Court, ^"'^^ °^ Su- 1883. By Order LXV., r. 1 (d), it is ordered that the costs of im,^ Order' and incident to all proceedings m the Supreme Court, including ^^^■ the administration of estates and trusts, shall be in the discretion of the Court or Judge. Provided that nothing herein contained {a) A.D. 1278. Court, 1883. See Appendix 0). The (J) S. 2. words "all proceedings in the Supreme (c) The first statute giving a successful Court," instead of "in the High Court," defendant costs was the 23 Hen. 8, c. 15. which appear in Order LV. (1875), are {d) This rule is substituted for Order used so as to apply to proceedings in the LV. of the Eules of the Supreme Court, Court of Appeal, 1875 (annulled by Eules of Supreme 380 A TREATISE ON TORTS. Chap. XVI. shall deprive an executor, administrator, trustee, or mortgagee who has not unreasonably instituted or carried on or resisted an)' proceedings, of any right to costs out of a particular estate or fund to which he would be entitled, according to the rules hitherto acted upon in the Chancery Division : Provided also that, when any action, cause, matter or issue is tried with a jury, the costs shall follow the event, unless the judge by whom such action, cause, matter, or issue is tried, or the Court shall, for good cause, otherwise order. " The purpose of the Judicature Act," observes Lord O'Hagan(e), " was to establish one great tribunal, with consistent and homogeneous action in all its parts, and as far as possible, an assimilation of practice and procedure." The matter of costs was one of the most important with which the Legislature had to deal in carrying out this purpose : and in entire harmony with it, the order (LV. 1875) we are considering, which has the full force of law, declares that " the costs of and incident to all proceedings in the High Court shall be in the discretion of the Court." The operation of that rule is as large as words can make it, and it was apparently designed to extend to all proceedings the discretionary power which had before governed. only those in Equity." Combined efifect The combined effect of the Judicature Act, 1875 (/) and Order Aot,"i875"Incl LXV. of the Supreme Court, 1883, is to repeal the previous Order LXV. of statutes as to costs with the exception of such of the provisions of Court^Eules! the County Courts Act, 1867, as are expressly preserved by s. 67 ^^^^- of the Judicature Act, 1873 (g). Thus, where the plaintiff in an action for slander recovered one farthing damages, it was held, that notwithstanding the 21 James 1, c. 16, s. 6, which provides that in an action for slander, if the plaintiff recovers no more than 40s. damages, he shall have no more costs than damages, and also 3 & 4 Vict. c. 24, providing that in action of tort generally, when a party recovers less than 40s. he shall have no costs at all, the plaintiff was entitled to his costs in the absence of any judicial order to the contrary (h). DiscretioQ of The Court has also a discretion as to directing payment of Court where no — (c) Garnctt r. Bradley, 3 App. Gas. at were decided under the repealed Order p. 958 (H. L.). LV. of 1875, but the grounds of their (/) 38 & 39 Vict. c. 71. decision will equally apply to Order LXV. (g) Garneti v. Bradley, 3 App. Gas. of the Supreme Court Rules, 1883. 944 ; 48 L. J. Ex. 186 (H. L.); Parsons v. (A) Bx parte St. Katharine's Hospital, Tinling, 2 C. P. D. 119 ; 46 L. J. C. P. 17 Gh. D. 378 ; Ex parte Mercers' Com- 230 ; Ex parte Mercers' Company, 10 Ch. pany, supra, D. 481 ; 48 L. J. Ch. 384. These cases COSTS. 3S1 costs where a provision as to costs is omitted in any public or Chap, XVI. private Act (i). r. ~ ■^ \ ' provision for The term "the costs of and incident to all proceedings in the costs in statute. High Court " means the costs of and incident to all proceed- Meaning of ings that have actually come before the High Court (k). dent to all' The fii-st portion of Order LXV. of .the Supreme Court Eules, proceedings in 1883, is in unlimited terms, and confers upon the Court or judge an unlimited discretion. By the second proviso, which relates to judge. trials before a jurj"-, it is directed that the costs shall follow the event, unless for good cause shown the judge shall otherwise order. The proviso at the end of the order does not take away that discretionar}' power, the only difference is that if the action is tiied before a jiuy, it is requisite that " good cause " be shown. "Good cause." When that has been done, the Judge or Court has the same absolute discretion over the costs as if the action had been tried without a jurj'. Thus, where on the first trial of an action the defendant wrongly contended that upon the facts proved the plaintiff was not entitled to recover any amount ; but the result of the second trial (in which the plaintiff recovered 6s.) showed that the defendant had been wrongfully harassed with a vexatious action, the judge made an order that the plaintiff should pay the defend- ant the cost of both trials. This order was uj^held by the Court of Appeal, on the ground that as " good cause " had been shown, the condition imposed in the proviso had been complied with, and the judge had an absolute discretion to order that the costs of the litigation should be paid by the plaintiff (l). In exercising his discretion to deprive a successful party of his costs the judge is not confined to the consideration of the conduct of the party in the course of the litigation, but may consider his conduct previous to and conducing to the action (m). Where a plaintiff recovered only one farthing damages in an action for libel (w), and the same amount in an action for malicious prosecution (o), the court made an order depriving him of his costs. (i) In Order LV. 1875, the words application made at the trial" are "High Court" are used. omitted, and the collocation of words is {k) In re Erand/reth, 9 Ch. D. 618. slightly different. (Z) Harris v. Pdherick, i Q. B. D. 611 (m) Ifarnet v. Vise, 5 Ex. D. 307 (C. A. ). (C. A.). This case was decided under (ra) Myers v. Defries, 4 Ex. D. 176 Order LV. of the Rules of the Supreme (C. A.). Court, 1875, but the proviso is in the (o) Siddons v. Lawrence, i Ex. D. 177 same language, except that in Order (C. A.). LXV. r. 1, 1883, the words "upon 382 A TREATISE ON TORTS. Chap. XVI. A Divisional Court has an original jurisdiction to make an Original iuris- ^^^^^ depriving a successful party of the costs of an action tried diction of Di- before a jury(2)). "It seems to me," observes Bramwell, L. J., in matter of " ^^^^ there are two classes of cases where it is desirable that the costs. Court should have jurisdiction ; one where the event cannot be known by the judge at the trial, and therefore where he could not possibly say whether good cause was shown to him ; and another, where the event might be known to him at the trial, and where there might be some collateral circumstances which, if brought before him, might possibly have altered his opinion, but which were not brought before him then because they were not known, or for some other good reason, and which would be sufficient cause to deprive the successful party of his costs of the action." " Let us suppose," observes the learned Lord Justice, in a previous part of his judgment (q), " something presented to the Court which was not in evidence before the judge at the trial, and the Court were to say, if that circumstance had been brought before the judge at the trial, it would have been ' good cause,' but as it was not before him at the trial he did not act upon it. I will give a familiar illustration. Suppose a man brings an action against a newspaper for libel, in which he gets the verdict, with 40s. damages ; and the judge holds that the plaintiff had good cause for bringing the action, the jury having found not the contemptuous verdict of a farthing, but having given 40s. damages, and the judge therefore gives the plaintiff his costs. Then suppose that the same plaintiff brings another action against another newspaper for the same libel and obtains a verdict with 40s. damages, and that this second action is unnecessary and wanton, but that the judge, through no fault of the defendant, knows nothing of the former action, and has not materials before him to influence his judgment as to costs, and declines to make any order, I think that under these circumstances it would not be reasonable to say that the Court should not have jurisdiction to deal with the costs on new materials before them which possibly were not known to the defendant, or which for some reason or another, where there was no improprietj' on his part, were not brought before the judge at the trial." Where in an action for slander tried before a jury the plaintiff recovered a farthing damages, and no application or order as to (p) Myers v. Defries, supra, at p. 181. (g) At p. 180. COSTS'. 383 Ajiplication ' ' at time of trial." costs was made at the trial, it was held that the Divisional Court Chap. XVI had jurisdiction under 0. LV., 1875, to entertain an apphcation to deprive the plaintiff of costs, though such application will only be entertained when it is made within a reasonable time after the trial (r). Under the Supreme Court Eules, 1875, O. LV., the application to a judge after the trial of an action in which the jury had given a Xerdict for the plaintiff to disallow plaintiff's costs, could only be made " at the trial," which was held to mean at the time of the sitting of the Court at which the trial took place (s). Now, however, by the Supreme Court Eules, 1883, 0. LXV., r. 1, the application must not necessarily be made at the time of the trial, but should be made to the judge who tried the cause within a reasonable time after the return of the verdict. It appears that an application under Order LXV., should be made either to the judge who tried the cause or to the Divisional Court ; a judge at chambers has no power to make an order as to costs under Order LXV., r. 1 (t). Where issues in fact and law are raised upon a claim or counter- claim, the costs of the several issues respectively, both in law and fact, shall, unless otherwise ordered, follow the event (u). Where in the same action, the plaintiff obtains a verdict and judgment as to one cause of action, and the defendant obtains a verdict and judgment as to other and distinct causes of action, the word " event " is to be used distributivelj', and the defendant is entitled to tax his costs of the issues found for him, provided no order otherwise is made by the judge who tried the cause, or the Court (x). In an action tried by a jury, where the plaintiff succeeds upon some issues, but is nonsuited upon others and no order is made as to costs, the defendant is entitled to the costs of the issues upon which the plaintiff is nonsuited (y). Where there is a claim with issues on it, and a counter-claim where there i (which is not a set-off, but is in the nature of a cross-action) with » «?™t«r- Jiul^'c at cham- bers no juris- diction over costs under Order LXV. 1. 1. "Where several issues, costs to follow "event " of each issue. Apportionment of costs. (?•) Bowey v. Bell, i Q. B. D. 95 ; 48 L. J. Q. B. 161. (s) See Collins V. Welch, 5C. P. D. 27 ; 49 L. J. C. P. 260 (C. A.) : Marsden v. Lancashire and Tork. Bail. Oo.,7 Q. B. D. 641 ; 50 L. J. Q. B. 318 (C. A.) : Baker V. Oakes, 2 Q. B. D. 171 ; 46 L.J. Q. B. 246 : Kynaston v. Mackinder, 47 L. J. Q. B. 76 (C. A.). (t) See Baker v. Oakes, sxipra. {u) Order LXV. Rule 2. (x) Myers v. Defries, (No. 2), 5 Ex. D 180 ; 49 L. J. Ex. 266 (C. A.) ; Sparrovt T. Hill, 8 Q. B. D. 479 (C. A.). {y) Abbott V. Andreivs, 8 Q. B. D. 648 • 51 L. J. Q. B. 641. 384 A TEEATISE ON TORTS. Chap. XVI. Where claim and counter- claim both dismissed. Successful defendant may be deprived of osts. Provisions of County Courts Act, 1867, s. 5, do not apply to counter- claim. issues on it, and the plaintiff succeeds on the claim, and the defendant succeeds on such counter-claim, the taxation, if not otherwise ordered, should be bj^ taxing the claim as if it and its issues were one action, and by taxing the counter-claim as if it and its issues were another action, and the allocation for costs should be given for the balance in favour of the party in whose favour is such balance : the master on such taxation dividing items which are common to both actions (z). Where the plaintiff's claim and the defendant's counter-claim were both dismissed with costs, it was held that the plaintiff was to pay the defendant the general costs of the action, and the defendant w^as to pay to the plaintiff only the amount by which the costs had been increased by reason of the counter-claim (a). The Court has a discretion to deprive a defendant of his costs though he succeeds in the action, and it perhaps has a discretion to make him pay the greater part of the costs by giving against him the costs of issues on which he fails, or costs in respect of misconduct by him in the course of the action (h). But a defendant cannot be ordered to pay the whole cost of the action unless the plaintiff was entitled to bring the action (c). " There is an essential difference," observes James, L.J., " between a plaintiff and a defendant. A plaintiff may succeed in getting a decree, and still have to pay all the costs of the action, but the defendant is dragged into Court and cannot be made liable to pay the whole costs of the action if the plaintiff had no title to bring him there {d)." The Eailway Commissioners have no jurisdiction under the Regulation of Railways Act, 1873, 36 & 37 Vict. c. 48, s. 28, to order a railwaj'' company, in whose favour they have decided upon an application to them against such companj', to pay costs to the unsuccessful applicant (e). The provisions of the County Courts Act, 1867, 80 & 31 Vict, c. 142, s. 5, denying costs in an action in the High Coui't where a minimum is not recovered, do not apply to a defendant recovering on a counter-claim (/). (z) Per Brett, L.J., Baines v. Bromley, 6 Q. B. D. 691 ; 50 L. J. Q. B. 465. See In re Brown, 23 Ch. D. 377 ; 52 L. J. Ch. 524 (C. A.). {a) Saner v. BUton, 11 Ch. D. 416 ; 48 L. J. Ch. 545 ; approved of in llason V. Enntini, 15 Ch. D. 287 (C. A). (b) Dufaur v. Sigcl, 4 De G. M. & G. 620. (c) Per Jessell, JI.R., Dicks v. Yates, 18 Ch. D. 76 ; 50 L. J. Ch. 809. {d) Dicks Y. Yates, 18 Ch. D.'atp. 85. See Butcher v. Pooler, 24 Ch. D. 273 : 52 L. ,T. Ch. 930 (C. A.). (c) Foster v. G. W. Rail. Co., 8 Q. B. D. 615 ; 51 L. J. Q. B. 233 (C. A.). , (/) Blake v. Applcyard, 3 Ex. D. 195; 47 L. J. Ex. 407 ; Stooke v. Taylor, 5 COSTS. SS5 By Order XYl., i: 54 of the Supreme Court Kules, 1883, the Chap. XVI. Court or a judge may decide all questions of costs, as between a "Thinl third party and the other parties to an action, and may order any ^'^'ig, xvi one or more to pay the costs of any other or others, or give such r. 54, Supreaie directions as to costs as the justice of the case may require (g). ^g^^l^ " ""' By the 30 & 31 Vict. c. 142, s. 5, it is enacted that if in any costs in actions action commenced after the passing of this Act, in any of her t'l^We in tiie r >:> > J County Courts. Majesty's Superior Courts of Eecord, the plaintiff shall recover 30 & 31 Vict. a sum less than {h) 20?. if the action is foimded on contract, ""■ ■^*^' ^' ' or 10?. if founded on tort, ivhether bj' verdict, judgment hy default, or on demurrer, or otherwise, he shall not be entitled to any costs of suit, unless the judge certify on the record that there was sufficient reason for bringing such action in such Superior Court, or unless the Court or a judge at chambers shall by rule or order allow such costs. By s. 29, where any action or suit shall be brought in any other Court than the Superior Courts of law which could have been brought in a County Court, and the verdict recovered is for a less sum than 10?., the plaintiff shall not recover from the defendant a greater amount of costs than he would have been allowed if the action or suit had been brought in such Countj' Court, unless the judge shall certify that the action or suit was a fit one to be brought in such other Court. By the Judicature Act, 1873 (i), s. 67, it is enacted that the provisions contained in s. 5 of the County Courts Act, 1867 (A), shall apply to all actions commenced or pending in the High Court, in which any relief is sought which can be given in a County Court (I). Actions for malicious prosecution, libel, slander, and seduction Countv Comt cannot be tried in a County Court, so that where a plaintiff hasnojurisdic- recovers damages m the High Court in any such action the costs actions for will follow the event under 0. LXV,, r. 1, unless it is otherwise *"'^' ordered ();;). Referring to s. 67 of the Judicature Act, 1873, Lord Blackburn observes, " That enactment, therefore, does not touch the cases Q. B. D. 569, questioning Staples v. (h) "Not exceeding.'' See 45 & 4C Ymtng, 2 Ex. D. 324. Vict. c. 57, s. 4. {g) As to the question of costs as (i) 36 & 37 Vict. c. 66. airecting third parties, before tliis rule \k) 30 & 31 Vict. c. 142. came into operation, see .ffoTOii/ V. Carrf- [1) Seethe County Courts Act, 1S4C, well, 8 Q. B. D. 329 ; 51 L. J. Q. B, 89 ; 8 & 9 Vict. c. 95, s. 58. Fillerr. Boherts, 21 Ch. D. 198. {in)S>ie Sayvjoody. Cross,liq.V,.V>.bZ- C C 3S6 A TREATISE ON TOETS. Chap. XVI. Kemitting action from the High Com-t to County Court. 80 & 31 Vict, c 142, s. 10. Eemoval of action from County Conit to High Court. 19 & 20 Vict, c. 108, s, 39. Eemoval of ! ctiou by cer- tiorari. in which a County Court cannot give relief; and still notwith- standing all that has been done, a County Court cannot entertain an action for slander " (n). By the County Courts Act, 1867, 30 & 31 Vict. c. 142, s. 10, it is enacted that the defendant in any action of tort may on satisfying certain conditions, obtain an order from any judge of the Court where the action is brought remitting the cause for trial before a County Court to be named in the order ; that " thereupon the plaintiff shall lodge the original writ and order with the registrar of such County Court, who shall appoint a day for the hearing of the cause .... and the County Court so named shall have all the powers and jurisdiction with respect to the cause as if both parties had agreed, by a memorandum signed by them, that the said County Court should have power to try the said action, and the same had been commenced by j)laintiff in the said County Court, and the costs of the parties in respect of the proceedings subsequent to the order of the judge of the Superior Coui't shall be allowed according to the scale of costs in use in the County Courts, and the costs of the proceedings in the Superior Court shall be allowed according to the scale in use in such latter Court." When an action is remitted to a County Court under this section, the High Court has no jurisdiction over the costs, such jurisdiction being transferred to the County Court judge (o). Although an action may have been removed from a County Court into a Superior Court at the instance of the defendant under s. 39 of the County Coru'ts Act, 1856 (p), the judge may refuse to certify for the costs of a plaintiff recovering a sum insufficient to carry costs under s. 5 of the County Courts Act, 1867 (q). So also in the case of an action removed by certiorari into a Superior Court. The plaintiff commenced an action in detinue in the Mayor's Court. At the instance of the defendant it was removed by certiorari into the Court of Queen's Bench, where the plaintiff recovered £3. The judge who tried the cause refused to give him a certificate for his costs under s. 5 of the County Courts Act, 1867. It was held by the Court of Queen's Bench that the plaintiff was not entitled to the costs of the action (r). (n) Oarnctt y. Bradley, 3 App. Cas. at p. 971. (o) Moody V. Stev.-art, L. R. 6 Ex. 35. (p) 19 & 2) Viot. c. 108, ((/) Flitters V. Alfrey, L. R. 10 C. P. 29 ; 44 L. J. C. P. 10, n. (r) Fellas v. Breslauer, L. R. 6 Q. B. 43S ; 40 L. J. Q. B. 111. COSTS. 387 "Where an action is refei-red by consent of the parties to an Chap. XVI. arbitrator, who is to have the same powers as a iucloe at nisi ,, 1 -i i 1 ,1 T ,. . , Arbitrator has pnus, the arbitrator has the same discretion with regard to the same power to granting of a certificate under s. 5 of the County Courts Act, -'j']^/ ''" 1867, as a judge has (s). "\A'lien an action is referred by consent to arbitration upon the Reference by terms that the costs of the cause shall abide the event, and the Costrof refer- costs of the award shall be in the discretion of the arbitrator, if ^"''^ ^"<^ the arbitrator decides in favour of the plaintiff he may lawfully dii-ect the defendant to pay the costs of the reference and the award although the plaintiff may be deprived of the costs of the cause under the County Courts Act, 1867, s. 5 (t). In the case of a compulsory reference it has been held («) Compulsory that the plaintiff cannot get the costs of the reference and "*^^'''"°*' award if he does not recover the minimum amount under the County Courts Act, since the costs of the award are always taxed on the judgment and treated as part of the costs of the cause (r). The decision of the- Court of Common Pleas in Moore v. Watson (m) has, however, since been questioned by the Court of Appeal in Galatti v. Wakefield (t). "It has been argued," says Distinction be- Bramwell, L.J. (w) "that there is no difference between a t^^en reference ' ^ ■' by consent and compulsory reference and a reference by consent, and that, % compulsion. notwithstanding the discretion of the arbitrator as to the costs of ^^'"^ reference to costs the award, thej'^ follow the event of the cause. In order to establish this proposition, reliance has been placed upon Moore V. Watson ; it seems to me that this case is quite distinguishable from that before us ; but I desire to add that, as at present advised, I do not agree with that decision ; I, however, reserve my judgment, until the proper moment has come for determining whether it ought to be overruled. The decision was put upon the most technical ground ; it was considered by the Court of Common Pleas that in a compulsory reference, the costs of the award were part of the costs of the cause, because they were taxed upon the same judgment. I feel great difficulty in agreeing with that argument ; suppose that the plaintiff succeeds in the action, (s) Harland v. Newcastle [Mayor), L. 314. R. 5 Q. B. 47 ; 39 L. J. Q. B. 67. (v) See Cowcll v. Amman Col. Co., 34 (I) Oalatti V. Wakef.e.U, 4 Ex. D. 249 L. J. Q. B. 161 ; Eohertson v. Stei-ne, 13 (C. A.) ; Forslmio v. De Wette, L. R. 6 C. B. N. S. 248 ; 31 L. J. C. P. 362. Ex. 200. (('•) 4 Ex. D. at p. 251. {u) Moore y, JJ'a/son, L. R. 2 C. P. c c 2 388 A TREATISE ON TORTS. Chap. XVI. but that the arbitrator gives the costs of the reference to the defendant ; how is the defendant to get his costs ? I believe tliat upon taxation, as a matter of practice, only one allocation is given; but I cannot see why there should not be two. There- fore, without either overruling or aifirming the decision of the Common Pleas in Moore v. Watson, I am of opinion that the plaintiff is entitled to the costs of the reference, on the ground that the parties agreed that they should be in the discretion of the arbitrator, which has been exercised in favour of the plaintiff." " Moore v. Watson,'" observes Brett, L.J., in the same case (.r), was a case of compulsory reference ; I will say nothing now upon the "question, whether it was correctly decided." It would appear, therefore, that, although it has not been expressly decided, there is a distinction between an action which is referred by consent, and one which is the subject of a compulsory reference. In the former case, where the action is referred on the terms that the costs of the reference shall be in the discre- tion of the arbitrator, he may give the plaintiff costs, though he may not recover the minimum fixed by the County Courts Act, in the latter case he cannot. When an action is referred, a special arrangement may be entered into between the plaintiff and the defendant, by which the operation of s. 5, of the County Courts Act, 1865, may be excluded, so that the plaintiff may obtain his costs, though he recover less than the statutable minimum, Thus, a cause, and all matters in difference were referred, and it was ordered that " the costs of the cause should abide the event of the reference, and that the costs of the reference and award should be in the discretion of the arbitrator. The arbitrator, as to the cause, found in favour of the plaintiff, as to the other " matters in difference," in favour of the defendant. The balance which the arbitrator ordered to be paid to the plaintiff, did not reach the statutable minimum. It was held, that although the arbitrator had decided something in favour of each part}', and although the difference between the two sums awarded did not reach the statutable minimum, the " event of the reference " was such as to entitle the plaintiff to his costs of the cause, and he was not deprived of them b}' s.. 5 of the County Courts Act, 1867 {y). (k) At p. 251. (y) Stevens v. Chapman, L. E. 6 Ex. 213. COSTS. 389 It is frequently a matter of considerable difficulty, since the Chap, XVI. abolition of the old form of pleading, to ascertain whether an Distinction be- actiou is founded on tort, or on a contract within the words of *"'®^" *"="'"^ s. 5 of the County Courts Act, 1867 {z). One learned judge (a) orTontraot. °' says the words " founded on contract" and " founded on tort " are " not words of art but plain English words, and are to have the meaning ordinary Englishmen would give them." Another learned judge (h) differs from this view, and considers them purely " technical terms," expressing great doubts as to whether the words used in s. 5 did not refer to the form of action, and not to the facts to which the form of action is to be applied. If there is an express contract, and the act complained of is a breach of it, the action is clearly founded on contract ; if there is no contract at all, but the act is an unauthorised intermeddling with property, it is clearly founded on tort ; but a difficulty arises where there is undoubtedly an unauthorised intermeddling with property, but the act is connected with a contract originally entered into, and there is ground for regarding it as founded on that contract, or some new contract implied from the circum- stances. Thus, the statement of claim alleged that the plaintiff, as vendor of goods, delivered them to the defendants, a railway company, as carriers for reward, the goods being consigned to the intending purchasers ; that afterwards, and before the goods had been delivered to the consignees or claimed by them from the defendant, the plaintiff discovered that the consignees were insolvent, and, as unpaid vendor, gave notice to the defendants not to deliver the goods to the consignees, but to hold them to the plaintiff's order, and before the goods were delivered to the consignees, the plaintiff required the defendants to re- deliver them to him : that the defendants refused to do so, and delivered them to the consignees, who absconded without paying for the goods. The plaintiff claimed the value, viz., 121. 16s. 6cl. (z) Before the passing of the Judica- able. It does not seem altogether satis- t«re Acts, which abolished the old form factoiy that the plaintiff should, by ofpleading, the difficulty existed, but not declaring in one particular form rather to the same extent. See Morgan v, Eavcij, than another, alter the liability of the 6 H. & N. 265 ; Legge v. Tucker, 1 H. & N. defendant in respect of costs, but many 500 ; 30 L. J. Ex. 131 ; Tattan v. G. W. of the authoi-ities seem to show that ho Bail. Co., 2 E. & E. 844 ; 29 L. J. Q. B. may do so." See ante, p. 1. 184; Baylis v. Li-iUott, L. R. 8 C. P. (a) Bramwell, L.J., in Bryants. Her- 345, where Honeyman, J., in his judg- bert, 3 C. P. D. at p. 390. ment, obsei-ves (at p. 349) : — -"The deci- (b) Bretf, L.J., in Bryan', v. U.trberi, sions on the right to costs in such cases supra, at p. 392. do not appear to be very easily reconcil- 390 A TREATISE ON TORTS. Chap. XVI. as damages. The defendants paid that sum into court, and the l^laintiff took it out in satisfaction : — It was held, that the action was "founded on tort," and not "on contract," within s. 5 of the County Courts Act, 1867 (30 & 31 Vict. c. 142), and that the plaintiff having recovered a sum exceeding 101. was not deprived of costs by that section (c). Where, however, an action was brought to recover the value of some goods entrusted to a carrier which were lost through his negligence, it was held that the action was founded on contract. Thus, the statement of claim alleged that the plaintiffs caused to be delivered to the defendants, as common carriers for hire, a parcel of goods to be carried from S. to D. for reward to the defendants, but that the defendants did not safely and securely carry the same, but so carelessly conducted themselves that it was lost. The defendants paid 121. 3s. id. into court, which the plaintiffs accepted in satisfaction of their claim. It was held that the action was " founded on contract" within the meaning of the County Courts Act, 1867, and that the plaintiff was not entitled to costs (d). So, in an action against a hackney carriage proprietor for not securely carrying certain luggage belonging to a person who had hired his carriage, the declaration (e) alleged that in consideration that the plaintiff would with her luggage become a passenger in such carriage, and of certain reward to be paid to the defendant by the plaintiff on that behalf, the defendant promised to carry the plaintiff and her luggage safely, and that the defendant, not regarding his duty as hacknej'- carriage proprietor, nor his said promise, did not safely carry the plaintiff's luggage, but so carelessly and negligently conducted himself that part of the said luggage was lost. The plaintiff having recovered less than 20Z. in the action, it was held that she was deprived of costs by the Countj"^ Courts Act, 1867, s. 5, the cause of action as set forth in the declaration being founded on contract (/). In an action for detinue, claiming the return of a picture or its value, and damages for its detention, the plaintiffs recovered a (c) Poniifex v. Midland Railway Co., L. J. Q. B. 184 ; 2 E. & E. 844. 3 Q. B. D. 23. (e) Tlie action was brought before tlia (rf) Fleming v. Manch. and She/. Bail. Judicature Acts came into operation, Co. , 4 Q. B. D. 81 (C. A.), distinguishing when the old form of pleading was in use. PoTjUf ex V.Midland Rail. Co., siywu, and (/) Baylis v. Idntott, L, E, 8 C. P. practically, though not in distinct terms, 345. overruling Tattonv. G. TV. Rail. Co., 29 COSTS. 391 verdict for £10, being its value as assessed by the jury, and Is. Chap. XVI. damages for its detention, it was held that the action was founded " on tort within the meaning of s. 5 of the County Courts Act, 1867, and that the plaintiffs were entitled to their costs {g). Brett, L.J., in his judgment in this case, observes (h), " I have certainly come to a very clear conclusion, that where persons are sued in detinue for holding goods to which another person is entitled, the real cause of action in fact is a wrongful act, and not a breach of contract, because it may arise and occur where there is no contract, and the remedy sought is not a remedy which arises on a breach of contract. The real substantial cause of action is a wrongful act." An under-sheriff before whom a writ of inquiry is executed, Under-Sheriff has the power of certifying under s. 5 of the County Courts Act, "cate^i^n^erfs 1867, that there was sufiBcient reason for bringing the action in a County Courts Superior Com-t(t). Act, 1867. The giving of the certificate under s. 5 is a matter within the The certificate. discretion of the judge, and the Court will not review his decision where the action is only for damages (k) ; but where an action is brought to try a right, and the right is of sufficient importance to make the action one proper to be brought in a Superior Court, the Court will make an order for costs in favour of the successful plaintiff, although the judge who tried the cause refused to certify (l). As to those statutes which give double and treble costs to sue- statutes giving cessful plaintiffs — such, for instance, as the Dramatic Copyright treWe^ostl Act (m) and Jervis's Act («), it appears to be somewhat doubtful as to whether or not they are repealed by the joint operation of the Judicature Acts, and 0. LXV. r. 1 of the Supreme Court Eules, 1883. In the leading case on the subject of costs (o). Lord Blackbm-n, observing upon the effect of 0. LV. (1875) (p), says, " Like my noble and learned friend on the woolsack (q), I wish to guard myself against being supposed to decide as to the effect of the rule upon other statutes which have been mentioned, ig) Bryant v. Herbert, 3 C. P. D. 389 (I) Hinde v. Sheppard, L. R. 7 Ex, 21. (C. A,), overruling decision of Court (m) 3 & 4 Wm. 4, c. 15. below, 3 C. P. D. 189. (n) 11 & 12 Vict. c. 44. (Ji) At p. 392. (o) Oarnett v. Bradley, 3 App. Cas. at (i) Craven v. Smith, L, E. 4 Ex. 146 ; p. 970 (H. L. ). 38 L. J. Ex. 90. (;;) For which 0. Tjy. r. 1 (1883) was (k) Match V. Lewis, 7 H. & N. 67 ; substituted. 31 L. J. Ex. 26. (j) Lord Hatlierley, L.C. 392 A TREATISE ON TORTS. Chap. XVI. or its applicability to them. For instance, Jervis's Act con- ' tains certain provisions in favour of justices against whom actions might he brought maliciously, and gives them greater costs than there would be in other cases. Again, there is the Dramatic Authors' Copyright Act, of the 3 & 4. Wm. 4, in which double and treble costs are given to the owners of dramatic copyright which is infringed. It may be said, I do not say whether it is true or not, but it may be said, that in these cases and in many others which might be mentioned, there is a particular class, and the rule need not applj' to them. . . . However, I wish to guard myself from being supposed to express an opinion one way or the other, upon what would be the effect of Order LV. upon such class of enactments." Lord Hatherley, C, in his judgment in the same case, observes (r), "With respect to those enactments as to double costs and treble costs, and the like, I think the argument need not be pursued, and I will not delay your Lord- ships by so doing ; but it will easily be perceived that they relate to (juite a different subject-matter from that in which the discretion is absolute. Those costs are realty penal ; the costs to be paid by the parties of this kind, are measured by the amount of damages. I say there may be a different argument founded upon that, but I am not assenting to, or dissenting from, that argu- ment." In addition to the above-mentioned statutes, there are others which contain special provisions as to costs. Such are the 24 Geo. 2, c. 44, s. 6 (actions against constables), 1 & 2 Wm. 4, c. 81, s. 19 (actions against constables and persons acting under statutory powers), and the 24 & 25 Vict. c. 97, s. 71 (actions against persons taking proceedings under the Malicious Injuries to Property Act). Whether or not these enactments are affected by the Supreme Court Rules as to costs appears to be doubtful. Lord Blackburn, in his judgment in Garnet v. Bradley (s), particularly guards himself from expressing an opinion on the point ; but it would rather appear from the judgments of the other noble and learned Lords in that case, that the costs in every action are left to the discretion of the judge or Com-t, save in the cases specially mentioned in the Judicature Act or the rules made thereunder. No contribn- Where a plaintiff has recovered damages and costs against Costs in par- ticular actioBS, (r) At p. 957. {s) Supra, at pp. 970-71. COSTS. 393 two defendants for a joint tort, and levies the whole damages and Chap. XVI. costs on one of them, that one has no claim to a moiety of the tion in case of damages and costs from the other, since no contribution can be co^t^ levied on 1-11 • • 1 / \ "'"' °^ joint clamied as between joint wrong-doers [t). wiong-doevs. (t) See Mcrryucathrr v. Nixan, 8 T. R. 186. APPENDIX. THE EMPLOYERS' LIABILITY ACT, 1880. App 43 & 44 Vict. c. 42. All Act to extend and regulate the liability of employers to make compen- sation for personal injuries suffered by workmen in the service. I. — Where after the commencement of this Act, persoml injury is caused to Amendment o£ a workman :— '*"'• (1) By reason of any defect in the condition of the ways, works, machinery, or plant connected with or used in the business of the employer ; or (2) By reason of the negligence of any person in the service of the employer who has any superintendence entrusted to him whilst in the exercise of such superintendence ; or (3) By reason of the negligence of any person in the service of the employer to whose orders or directions the workman at the time of the injury was bound to conform, and did conform, where such injurv resulted from his having so conformed ; or (4) By reason of the act or omission of any person in the service of the employer done or made in obedience to the rules or bye-laws of the employer, or in obedience to particular instructions given by any person delegated with the authority of the employer in that behalf ; or (5) By reason of the negligence of any person in the service of the employer who has the charge or control of any signal, points, locomotive engine, or train upon a railway, the workman, or in case the injury results in death, the legal personal representatives of the workman, and any persons entitled in case of death, shall have the same right of compensation and remedies against the employer as if tlie workman had not been a workman of nor in the service of the employer, nor engaged in his work. II. — A workman shall not be entitled under this Act to any right of com- Exceptions to pensation or remedy against the employer in any of the following cases ; that amendment of is to say, (1) Under sub-section (1) of section 1, unless the defect therein mentioned arose from or had not been discovered or remedied owing to the negligence of the employer or of some person in the service of the employer, and entrusted by him with the duty of seeing that the ■ways, works, machinery, or plant were in proper condition. 396 APPENDIX. Limit of sum recoverable as compensation. Limit of time for recovery of compensation. App. (2) Under sub-section (4) of section 1, unless tlie injury resulted from some impropriety or defect in the rules, bye-laws, or instructions therein mentioned ; provided that where a rule or bye-law has been approved or has been accepted as a proper rule or bye-law by one of Her Majesty's Principal Secretaries of State, or by the Board of Trade or any otlier department of the Government, under or by virtue of any Act of Parliament, it shall not be deemed for the purposes of this Act to be an improper or defective rule or bye-law. (3) In any case where the workman knew of the defect or negligence which caused his injury, and failed within a reasonable time to give, or cause to be given, information thereof to the employer or some person superior to himself ia the service of the employer, unless he was aware that the employer or such superior already knew of the said defect or negligence. 3. — The amount of compensation recoverable shall not exceed such sum as may be found to be ectuivalent to the estimated earnings, during the three years preceding the injury, of a person in the same grade employed during those years in the like employment and in the district in which the workman is employed at the time of the injury. 4. — An action for the recovery under this Act of compensation for an injury shall not be maintainable unless notice that injury has been sustained is given within six weeks, and the action is commenced within six months from the occurrence of the accident, causing the injury, or, in case of death, within twelve months from the time of death : Provided always, that in case of death the want of such notice shall be no bar to the maintenance of such action if the judge shall be of opinion that there was reasonable excuse for such want of notice. 5. — There shall be deducted from any compensation awarded to any work- man or representatives of a workman, or persons claiming by, under, or through a workman in respect of any cause of action arising under this Act any penalty or part of a penalty which may have been paid in pursuance of any other Act of Parliament to sncli workman, representatives, or persons in respect of the same cause of action ; and where an action has been brought under this Act by any workman, or the representatives of any workman, or any persons claiming by, under, or through such workman, for compensation in respect of any cause of action arising under this Act, and payment has not previously been made of any penalty or part of a penalty under any other Act of Parliament in respect of the same cause of action, such workman, repre- sentatives, or person shall not be entitled thereafter to receive any penalty or part of a penalty under any other Act of Parliament in respect of the same cause of action. Trial of actions. g. — (i) Every action for recovery of compensation under this Act shall be brought in a County Court, but may, upon the application of either plaintiff or defendant, be removed into a superior court in like manner and upon the same conditions as an action commenced in a County Court may by law be removed. (2) Upon the trial of any such action in a County Court before the judge without a jury, one or more assessors may be appointed for the urpose of ascertaining the amount of compensation. Money payable under penalty to be deducted from compen- sation under Act. APPENDIX. 397 (3) For the purpose of regulating the conditious and mode of appointment App. and remuneration of sucli assessors and all matters of procedure relating to their duties, and also for the purpose of consolidating any actions under this Act in a County Court, and otherwise preventing multiplicity of such actions, rules and regulations may be made, varied, and repealed from time to time in the same manner as rules and regulations for regulating the practice and procedure in other actions in County Courts. "County Court" shall, with respect to Scotland, mean the "Sheriff's Court," and shall, with respect to Ireland, mean the " Civil Bill Court." In Scotland any action under this Act may he removed to the Court of Session at the instance of either party in the manner pro\ided liy, and subject to the conditions, prescribed by section 9 of the Slieritf Courts (Scotland) Act 40 & 41 Vict. 1877. c. ^0. In Scotland ths Sheriff may conjoin actions arising out of the same occur- rence or cause of action, though at the instance of different parties, and in respect of different injuries. 7. Xotice in respect of an injury under this Act shall give the name and Moile of serv- address of the person injured, and shall state in ordinary language the cause ing notice ot of the injury and the date at which it was sustained, and shall be served on injury. the employer, or, if there is more than one employer, upon one of such employers. The notice may be served by delivering the same to or at the residence or place of busine.ss of the person on whom it is to be served. The notice may also be served by post by a registered letter addressed to the person on whom it is to be served at his last known place of residence or place of business ; and, if served by post, it shall be deemed to hive been served at the time when a letter containing the same would be delivered in the ordinary course of post ; and, in proving the serving of such notice, it shall be sufficient to prove that the notice was properly addressed and l-egistered. Where the employer is a body of persons corporate or nnincorporate, the notice shall be served by delivering the same at or by sending it by post in a registered letter addressed to the office, or, if there be more than one office, any one of the offices of such body. A notice under this section shall not be deemed invalid by reason of any defect or inaccuracy therein, unless the judge who tries the action arising from the injury mentioned in the notice shall be of opinion that the defendant in the action is prejudiced in his defence by such defect or inaccuracy, and that the defect or inaccuracy was for the purpose of misleading. 8. For the purposes of this Act, unless the context other^^•ise recj^uires, — Definitions. The expression " person who has superintendence entrusted to him " means a person whose sole or principal duty is that of superintendence and who is not ordinarily engaged in manual labour : The expression " employer " includes a body of persons corporate or nnincorporate : The expression " workman " means a railway servant and any person 3g ^ 39 yj^^^ to whom the Employers and Workmen Act, 1875, applies. c. 90. 398 APPENDIX. App. 9. This Act shall not come into operation until the first day of January one thousand eight hundred and eighty-one, ivhich date is in this Act referred °™f'^r^', to as the conimencement of this Act. Short title ' ^^' '^^^^ "^^^ ™^^ ^® ''^*^''^ ^® ^^^^ Employers' Liability Act, 1880, and shall continue in force till the thirty-first day of Deceniljer one thousand eight hundred and eighty-seven, and to the end of the then next Session of Parlia- ment, and no longer, unless Parliament shall otherwise determine, and all actions commenced under this Act before that piericd shall he continued as if the said Act had not expired. INDEX. ABANDONMENT, extinguishment of easement by, 109 ABROAD, tort committed by British subject, 9 ABUSE of civil process, 31 words of common, not actionable, 44 of license, rendei-s a person a trespasser, ab initio, 67 ACCESS OF LIGHT, right to, 106 ACCESSION, title by, in respect of chattels, 136 ACCIDENT, injuries caused by, 7 assault by, 17 when negligence may be presumed from occurrence of, 167 inevitable, 169 ACCORD AND SATISFACTION, a good defence to an action for defamation, 57 to an action under Lord Campbell's Act, 209 ACCRETION, lands formed by, in general belong to owner of adjacent soil, 74 ACTION, right of, doctrine as to suspension of, in case of felony, 8 may be maintained for tort committed by British subject abroad, 9 for tort may be maintained by married women suing alone ,11, 17 does not abate by reason of marriage, death, or bankruptcy of parties, if cause of action survive, 15 separate, for injuiy to person and goods in respect of same wrongful act, 15 notice of, when brought against justices and constables, 30 ADJACENT OWNER of land, 7, 190—1 of mine, 70 of building, 98 of different floors of same building, 7, 99 400 INDEX. ADMINISTRATOR, title of, to goods of intestate relates back to time of death, 137 ADVERTISEMENT, fraudulent, liability for statements made in, 268 AFFIDAVIT, statements made in, may sometimes be actionable, 4 sworn in the course of judicial proceedings, privileged, 51 AGENT, liability of principal for tort committed by, 9 prosecution instituted by, 38 trespass by, 65 fraud and misrepresentation by, 256 — 61. Sec Featjd And misrepresenta- tion. liability of, for breach of warranty, 261 aggravation of damages, 12 AGRICULTURAL HOLDINGS ACT, 1883, law as to fixtures under, 148 ALLUVION belongs to the owner of the adjoining land, 74 AMBASSADOR not liable to an action for tort, 9 AMENDS, tender of, in respect of cattle damaje feasant, 155 ANCIENT LIGHTS, right to enjoyment of, under the Prescription Act, 106 ANIMALS, liability of owner for trespass by domestic, 78 liability of owners for damages caused by mischievous, 179 the scienter, 179 injuries to, from poisonous trees, 181 liability of Railway Company as common carriers of, 213 APOLOGY, plea of, in action for libel, 57 APPENDANT, common, 111 APPURTENANT, common, 112 ARCHITECT, slander of, in his pro.'essional capacity, 45 INDEX. 401 ARREST for felony, 24 for misdemeanour, 25 for breach of the peace, 25 under statute without warrant, 26 under the Metropolitan Police Acts, 26 the Vagrant Act, 27 the Larceny Amendment Act, 27 the Malicious Injuries to Property Act, 27 the Ecclesiastical Courts Act, 1860 ; 28 the Mercantile Shipping Amend. Act, 1862 ; 28 the Railway Clauses Act, 1845 ; 28 the Mutiny Act, 30 of principal, by his bail, 31 of lunatic, 31 malicious, 31 of ship, action for maliciously procuring, 40 ART, WORKS OF, copyright in, 306—12 paintings, drawings, and photographs, 307 duration of, 307 registration, 307 penalties on infringement, 308 on fraudulent production and sale, 308 photograph of engraving, 308 the "author" of a photograph, 308 assignment, 309 in engravings and prints, 310. See Exgravixos. ASSAULT, 16—22 definition of, 16 distinction between battery and, 16 cannot be committed, where consent, 17 by servant, 17 by officer of corporation, 1 7 upon wife, 17 gi'ounds for justifying, 18 in self-defence, 18 In defence of property, 18 may be justified in case of trespasser, 18 in case of person committing a disturbance, 19 in defence of family or friends, 20 by authority of the Crown, 20 moderate correction by parents, &c., 20 magistrate's certificate of dismissal of charge, under 24 & 25 Vict. c. 100, s. 45 ; 20 damages in actions for, 33 ASSIGNMENT of copyright in literal^ work, 188, 293 of copyright in painting or engraving, 309 D D 402 INDEX. ASSIGNME ^T— continued. of patent, 318 of design, 328 of trademark, 331 ATTACHMENT of sheriflf, 353 ATTORNEY. See Solicit or. BAIL, arrest of principal ty his, 31 BAILEE, a man cannot Ijecome one against his will, 126 chattels deposited with, 126 can protect himself under the Interpleader Act, in case of rival claimaits, 126 for hirej is guilty of a conversion, if he sells article, 126 BAILIFF, duty of sheriff, as queen's, 339 special, 345 BAILMENT, special, 128 BANK, defamatory statement respecting, 43 BANKER, action against, for dishonouring cheque, 12 BANK NOTE, property in, passes by delivery, 135 title to lost or stolen, 135 property in halves of, 136 BANKRUPTCY, action does not ahate by reason of, if cause of action survive, 15 action will lie for maliciously procuring adjudication of, 40 vests property of bankrupt in trustee, 137 what such property consists of, 138 goods in possession of bankrupt with owner's consent, 138 property in ships in course of construction, 138 n. reputed ownership clause under the Bankruptcy Act, 138, 140 arrest of debtor under s. 25 of Bankruptcy Act, 1883 ; 341 BARRISTER, statements in Court by, privileged, 50 action for negligence against, in his professional capacity, will not lie, 189 n. BATTERY. See Assault. definition of, 16 BILL OP LADING, transfer of goods by, 141 INDEX. 40 S BILL OF SALE, meaning of term, witliin the Bills of Sale Acts, 1878, 1882 ; 141 requisites of, 142 registration of, 142 given for under £30 void, 143 BOOK, copyright in, see Copyright, 286-314 meaning of word within s. 2 of the Copyright Act, 287 title of, may be the subject of a trade mark, 337 BORROWER OF CHATTEL, extent of responsibility of, 182 BOtJNDARY FENCE, who is bound to maintain, 79 property in, 79 BREACH OF THE PEACE, what amounts to a, 25 arrest for, 25 BREAKING OPEN of door, by sheriff, 346, 349 BRIDGE, maintenance of, by railway company, 190 BUILDER, responsibility of, for negligence, 183 BUILDING, injury to, through working of mine, 70 distinction between right of support to, and to land, 97 right of adjacent, to support, 98 support where separate floors have separate occupiers, 99 BUSINESS, misrepresentation as to value of, 269 CAB DRIVER, responsibility of, for negligence, 178 CAIRNS' (LORD) ACT, 108 CAMPBELL'S (LORD) ACT, action under, 208-11 where it lies, 208 who entitled to bring action, 209 must be brought within twelve months after death, 209 defence of accord and satisfaction, 209 damages under, 210 CANAL, user of towing-path alongside of, 72 navigable, a highway, 249 P n 2 404 INDEX. CAREIAGE, negligent driving of, 176 rules of the road as to driving of, 176 collision with another carriage, where contributory negligence, 176 duty of driver of, towards foot passengers, 177 joint hiring of, 177 liability of master for negligence in servant whilst driving, 177 liability of hirer of, 177 CAERIEE, distinction between liability for carriage of goods and of passengers, 199 carriage of goods, 212 loss of goods by, 213 of coals, 21 i of dangerous goods, 214 CARRIERS' ACT (11 Geo. 4 & 1 Wm. 4, c. 68) provisions of, 215 loss of goods within the, 217 declaration of value, 218 articles within the, 218 mixed parcels, 218 loss of goods by felony of railway company's servants, 219 CATTLE, liability of owner for trespass by, 78 when not distrainable, 149 damage feasant, 155 straying from highway on to private land, 155 right of commoner to distrain, 155 sale of distrained, 156 injury to, through poisonous trees, 181 liability of railway company as carriers of, 213, 243 CATTLEGATE, nature of the right, 114 CERTIFICATE, magistrate's, under 24 & 25 Yict. c. 100, s. 45 ; 20 CHAIRMAN, duty of, to preserve order at public meeting, 26 CHANCEL, property in, 75 title to pew in, 76 CHATTEL, trespass upon, and conversion of, 119 — 144 definition of trespass upon, 119 of conversion of, 119 possession necessary to maintain trespass, 119 jus tertii, no answer to action for tresp .ss upon, 120 where removal o', justifiable, 120 lucking up of, 121 INDEX. 405 CHATTEL— co/Umwerf. lost, 121 estray, 121 threatened seizure of, 121 liability of principal for trespass upon, by agent, 121 title to, under the Factors' Acts, 127 by purchase, 130 by finding, 134 by accession, 134 by gift, 134 by administrator, 137 by trustee in bankruptcy, 137 under Merchant Shipping Act, 140 under bill of lading, 141 under bill of sale, 141 defective construction of, 181 borrower and lender of, their correlative duties, 182 negligent use of, 182 CHILDREN, personal injuries to, 168 when travelling on railway in cliai-ge of adult, 208 CHUECH, arrest of persons creating disturbance in, 28 property in the freehold of, 75, 77 in the chattels of, 75 in the keys of, 75 in the bells of, 76 in the pews of, 76 CHURCHWARDENS, movable property of church vested in, 75 mandamus for election of, 370 CHURCHYARD, property in freehold of, 75 property in tomb-stones in, 77 CLERGYilAN, action will lie against, for refusing to perform marriage, 5 defamatory statements respecting, 42, 45 defamatory statements in sermon by, not privileged, 54 n,, CLOAK-ROOM, luggage left in, 222 • liability of railway company for, 223 COAL, carriage of, by railway company, subject to special regulations, 214 COLLISION between carriages on highway, 176 COMMISSIONERS, mandamus to, 365 406 INDEX. COAIMON, rights of, 111, 115 appendant, 111 appurtenant, 112 pur cause de vicinage, 112 in gross, 113 of shack, 113 n. of turbary, 114 of estovers, 114 quasi, rights of, 115 COMMONEE, his right to pull down erection wrongfully placed on common, 81 to distrain cattle of stranger damage feasant, 155 COMPANY, misrepresentations by directors of, 272 fraud in prospectus of, 272 extent of liability of, for reports issued by its directors, 276 officers of, liable for concoction of fraudulent reports, 278 prohibition against, for use of identical name of a subsisting company, 335 has the same rights as a private trader in respect of name, 336 COMPANIES ACT, 1867, s. 38 provisions of, 280 interpretation of enactment, 280 only applies to shareholders, 284 does not give remedy against the company, but only against persons omitting to disclose contracts, 284 meaning of words ' ' knowingly issuing, "284 measure of damages, 284 COMPENSATION for injuries under the Employers' Liability Act, 164 CONCEALMENT of defect in chattel, 264 CONSTABLE, duty of, in regard to taking person into custody, 23 may in certain cases arrest without warrant, 24, 26 statutory protection from vexatious action, 30 CONSTRUCTION OF "WORKS, liability of railway company for injury caused by, 197 mandamus to company to enforce, 368 CONTEMPT OF COURT, committal for, 29 CONTINUING, trespass, 67 nuisance, 224 CONTRACT, distinction between action founded on, and on tort, 1, 389 undisclosed, by company, 280 — 85 INDEX. 407 CONTRACTOR, liability of, for negligence, 183 when he employs a sub-contractor, 184 CONTRIBUTION, none between joint wrong-doers, 393 CONTRIBUTORY NEGLIGENCE, general rule of law as to, 167 of child, 168 of driver of vehicle, 176 of guest at inn, 186 in crossing railway line, 195 of passenger by railway, 208 of fellow-servant, 208 of consignor in packing goods, 214 CONVERSION of chattels, 122 what amounts to, 122 demand and refusal, 122 unintentional conversion, 124 abuse of process of law, a conversion, 125 COPYHOLD, right to minerals in, 71 COPYRIGHT, 286—314 only exists by statute, 286 duration of, 287 provisions of Copyi-ight Act, 1842 ; 287—9 is personal property, 289 to what works it extends, 289 map, 289 newspaper, 289 magazine, 290 advertising catalogue, 290 originality of work, 291 registration of, 291 extends to musical composition, 291 publication, 292 name of publisher, 292 assignment of, 293 infringement of, 293 plagiarism, not necessarily an invasion of copyright, 294 book on common subject by different authors, 295 no copyright in title of book, or name of newspaper, 297 may exist in respect of matter or arrangement of book, 297 in cartoons, 297 gratuitous distribution may constitute infringement of, 297 representation of drama founded on novel, not an infringement, 297 though printing and publication is, 298 limitation of action, 298 408 INDEX, C0FYmGHT—cmUi7iued. notice of objections, 298 importing for sale, and " selling knowingly," 298 "person aggrieved," 299 forfeiture of copies, 299 dramatic, 299. See Dhamatic Copyeight. musical, 305 Musical Compositions Act, 1882, provisions of, 306 Fine Arts Copyright Act, 1862 ; 306, 310. See Art, Works of, in engravings, 310, See Engravings, Coptkight. in sculpture, 311 international, 311, See Intbknational Copteight. COBPORATION, as to liability to action for malicious prosecution, 39 liability for libel, 59 liable in trespass on goods, 122 COSTS, under the Statute of Gloucester, 379 County Courts Act, 1867, s. 5 ; 379 Judicature Act, 1875, 0. LV., 379 Rules of Supreme Court, 1883, 0. LXV., 379 combined effect of the Judicature Act, 1875, and 0. LXV. of the Supreme Court Rules, 1883 ; 380 discretion of Court where no provision for costs in statute, 381 meaning of term "incident to all proceedings in High Court," 381 discretion of judge, 381 meaning of term " good cause," 381 original jurisdiction of Divisional Court in matter of costs, 382 application "at time of trial," 383 Judge at chambers has no jurisdiction over costs under 0. LXV. r. 1, 383 where several issues, costs to follow " event " of each issue, 383 apportionment of costs, 383 where there is a counterclaim, 383 where claim and counterclaim both dismissed, 384. successful defendant may be deprived of costs, 384 provisions of County Courts Act, 1867, s. 5, do not apply to counterclaim, 384 of "third parties," 385 in actions triable in the County Court, 385 in action remitted from High Court to County Court, 386 in action removed from County Court to High Court, 386 in action removed by certiorari into a Superior Court, 386 arbitrator's power over, 387 on reference, 387 when doubtful whether action is founded on contract or tort within the words of s. 5 of the County Courts Act, 1867 ; 389 under-sheriff may certify for, under s. 5 of the County Courts Act, 1867 ; 391 statutes giving double and treble costs, 391 in particular actions, 392 no contribution, when costs levied on one of two joint wrong-doers, 392 INDEX. 409 COUNTERCLAIM, rule as to costs, 883 COUNTY COURT, action under Employer's Liability Act must be commenced in, 165 proceeding by rule against judge of, 376 rule as to costs where action might have been tried in, 385 COUNSEL, speeches by, privileged, i, 50 CRIMINAL CHARGES, bondfde made, privileged, 50 CRIMINAL INFORMATION seldom granted, unless the person libelled is the holder of a public office, 41, n. CROPS, when severed from the land, become personal chattels, 140 growing, distrainable, 149 CROWD, , nuisance caused by collection of, 233 CROWN, assault by authority of, 20 limit of right to seashore, 73 right of fishery in navigable river, 116 patent binds, 318 mandamus does not lie to servants of, 361 CUSTOM, acquisition of easement by, 89 requisites of, 89 as to sports and pastimes, 90 as to erection of booths at fairs, 90 as to mining rights, 91 cannot prevail against statute, 91 loss of, through fraudulent use of name, 334 CUSTOMER, injury caused to, through negligence, 170 DAMAGE, arising from inevitable accident, not actionable, 2 to be actionable, must not be too remote, 2 remoteness of, 2 the result of vis major not actionable, 7 to reversion, 84 DAMAGES, in action for assault, 33 false imprisonment, 33 malicious prosecution, 39 defamation, 58 410 IISTDEX. DAMAGES— comfoMjja^. in action for trespass on land, 83 trespass on and conversion of chattels, H3 sometimes nominal in case of conversion. Hi in action of detinue, 146 for wrongful distress, 152 for seduction, 161 under Lord Campbell's Act, 210 in case of passenger injured on railway, 211 in action for false representation, 269 against directors of company, 284 for infringement of patent, 325 in action against sheriff for not le'vying, 350 DAMAGE FEASANT, cattle, 155 right of commoner to distrain, 155 sale of cattle, 156 locomotive, 156 DAMNUM SINE INJUEIA, doctrine of, 4 DEATH, action for death of person, under Lord Camphell's Act, 208 DEBTOR'S ACT, 1869 imprisonment for deht in most cases abolished by, 340 DECEIT. See Fkaud. in vendor of chattel, 264 passive, 264 active, 265 breach of warranty may be treated as, 266 DEDICATION of highway, 246. See Highway. DEFAMATION, civil remedy for, by action for libel or slander, 41 province of judge and jury in action for, 41, 43 definition of libel, 41 of slander, 41 distinction between libel and slander, 42 inn'mndo, 49 malice, 49 distinction between malice in lau: and malice in fact, 49 defences to action for, 50 privileged statements, 50 absolute privilege, 50 qualified privilege, 51 definition of actual malice, 51 communication privileged when made in discharge of duty, 52 character of servant, 53 INDEX. 411 DEFAMATION— coniMittcrf. where confidential relations established, 54 instance of privileged occasions, 64 criminal charges hand fide made privileged, 55 defamation by mistake, 55 criticism on public men, 55 on public affairs, 55 reports of legal proceedings, 56 of public meetings, 56 of debates in Parliament, 56 reviews and criticisms, 56 justification of libel and slander, 57 accord and satisfaction, 57 apology and payment into Court under 6 & 7 Vict. •j. 96, o. 2 ; 57 damages in action for, 58 proof of publication in newspaper, 59 liability of corporation for libel, 59 injunction to restrain publication of libel, 59 DEMAND AND REFUSAL, evidence of, a conversion, 122 what amounts to, 122 in general necessary to enable plaintiff to bring action, 122 must be absolute and unqualified, 123 DESIGNS, copyright in, under Patents, Designs, and Trade Marks Act, 1883 ; 326-28 novelty and originality of, 328 combination of old patterns may be new designs, 328 registration of, 338 assignment of, 328 article to which design applied erroneously marked, 32 DETINUE, what it is, 145 the wrongful detention is the injurious act, 145 will only lie for some specific article, 145 power vested in metropolitan police magistrate to order the delivery of goods illegally detained when under £15 in value, 146 damages in, 146 DIRECTORS, false representations in prospectus by, 272 names of, improperly inserted in prospectus, 275 extent of liability of company for reports containing misrepresentations issued by, 276 responsibility of, for false representations by their agent, 278 personal liability on their acceptances, 279 DISTRESS, DAMAGE FEASANT, 155-6 DISTRESS, WRONGFUL, distress, what it is, 146 what constitutes illegal distress, 146 413 INDEX. DISTRESS, WRO'SGYUL—ecntinued. actual demise necessary, 146 double value recoverable under 2 W. & M. c. 5, s. 5, where no rent due, 146 rent payable in advance, 147 tender of rent, 147 mode of distraining, 147 things privileged from distress, 148 fixtures, 148 fixtures under the Agricultural Holdings Act, 148 growing crops not privileged, 149 beasts that profit land, 149 implements of trade, 149 goods of strangers, 149 Lodgers' Protection Act, 1871 ; 149 goods of strangers on premises for business purposes, 150 what amounts to a distress, 151 excessive distress, 151 measure of damages, 152 a second distress unlawful, 152 gale of distress, 153 distress after termination of lease, 153 fraudulent removal of goods to avoid distress, 154 executors' power to distrain for rent due to their testator, 154 distress affirms continuance of tenancy, 154 is applicable to all cases where rent is in arrear, 154 DISTURBANCE, of ferry, 110 of market, 110 DOCUMENTS OF TITLE, under the Factors' Act, 127 transfer of property in goods by delivery of, 127 DOG, trespass by, in pursuit of game, 117 damage feasant, 155 n. liability pf owner for injuries caused by, 179 the scienter damage done to cattle by, 180 DONATIO MORTIS CAUSA, 137 DOUBLE COSTS in certain actions, 391 DRAINAGE, light of, 104 DRAINS, nuisances arising from inefficient, 226 liability of occupier, 226 of landlord, 227 DRAMATIC COPYRIGHT, provisions of Dramatic Copyright Act, (3 & 4 Wm. 4, o. 15,) 299 ■ ■ INDEX. 413 DRAMATIC COPYRIGHT— coaimucd. sole right of representation in author or assignee, 299 who is an "author " within the statute, 300 joint-authorship of play, 301 publication of drama, as a book, does not deprive author of right of represen- tation, 301 where drama first represented abroad, author loses right, 801 an iutroduction to a pantomine is within the Act, 301 assignment of right of representation, 301 consent in writing of author, 301 license by part-owner of right, 302 infringement of, 302 distinction between copyright iu books and in dramatic performances, 303 who is liable for infringement, 303 what constitutes "a place of dramatic entertainment" witliin the statute, 304 DRAMATIC PERFORMANCE, in private house, not an infringement of copyright, 304 DRAWINGS, copyright in, 306 EASEMENT, definition of, 86 acquisition of, 88 by deed of gi'ant, 88 reservation of, 89 presumed grant of, 89 acquisition by custom, 89 requisites of custom, 90 sports and pastimes, 90 erection of booths at fairs, 90 mining rights, 91 title by prescription, 91 incorporeal hereditaments can alone be prescribed for, 91 presumption as to immemorial enjoyment, 92 the Prescription Act, 93 claim to right of common under, 93 claim to right of way and watercourse under, 95 claim to light, under, 96 effect of the Prescription Act, 96 easement by statute, 96 right of support from adjoining land, 97 distinction between right of support to land and to building, 97 support from adjoining building, 93 support where separate floors have separate occupiers, 99 right of way, 99 extent of right, 100 way of necessity, 100 duration of way, 101 obstruction of right of way, 101 414 INDBXj EASEMENT— co7i