I \ . J Kb (pi I I ^fel Cornell University Law Library The Moak Collection PURCHASED FOR The School of Law of Cornell University And Presented February 14, 1893 IN nenoRY of JUDGE DOUGLASS BOARDMAN FIRST DEAN OF THE SCHOOL By Ms Wife and Daughter A. M. BOARDMAN and ELLBN D. WILLIAMS The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924021864099 COMMENTAEIESo;,^:^^. ON THE COMMON LAW, DESIGNED AtJ INTKODUCTORY TO ITS STUDY. HEEBEET g^OOM, LL.D., BAKRISTEa AT LAW ; READER IN COMMON LAW TO THE INNS OF COURT \ AUTHOR OF "a SELECTION OF LEGAL MAXIMS," ETC. FOURTH EDITION. Lex est recta ratio imperandi atqub prohibendi ; quam qui iqnorat is est IKJUSTUS ; SIVE EST ILLA SCRIPTA USPIAM SIVE NUSQUAM. — Cic. de Leg. lib. 1. LONDON : ■WILLIAM MAXWELL & SON, 29, FLEET STREET, E.G. Hato 33o0tellets anlf ?3ubUslj8ta; HODGES, FOSTER, & CO., AND E. PONSONBY, DUBLIN ; THACKER, SPINK, & CO., CALCUTTA. 1869. i LONDOH : BR4DBDRY, EVAKS, AND CO., PEINTEES, WmTEFRIAEa. PEEFACE TO THE FOURTH EDITION. i(^ Cases decided siuce the last Edition of this Book have in the present issue been inserted, recent enactments affecting the subjects here treated of have been noticed, and the additions and emendations thus effected have been brought down to the latest moment. The size of the Volume has not, however, by reason of necessary omissions, been mate- rially increased, and its usefulness, I trust, will be found to be much greater than before. H. B. Temple, Sept. 20th, 1869. PEEFACE TO THE THIRD EDITION. Not only have I thoroughly revised these Commentaries, but very many references to reported cases and to Statutes — especially the Crirninal Law Consolidation and Amend- ment Acts — ^have beea added, in this Edition. I rejoice also to say that, the Index of the Work, which had been found defective, has been entirely recast, and much extended and improved under the kind superintendence of my learned friend, Mr. Geary, of the Midland Circuit. With the above brief announcement, this volume is again submitted to the indulgent consideration of the Profession. H. B. Temple,' Jidy l&tli, 1864. PEEFACE TO THE SECOND EDITION. The first issue of these Commentaries having been ex- hausted, they are again, in a revised form, offered to the Student — that portion of the Work which was originally prepared by my friend, Mr. Philip Francis (a), of the Middle Temple, having been edited by him. Although the bulk of the volume has, by an improved an-angement of the type, been materially reduced, its actual contents have, by the insertion of reported cases up to the latest moment, been much augmented. It is my earnest hope that these Commentaries, the elemen- tary character of which is still preserved to them, may aid, in some slight degree, the progress of Legal Education and the advancement of Legal Science. HERBERT BROOM. TEltPLE, January let, 1S61. (a) Now Sir Philip Francis, Judge of tic Supreme Consular Court of Conistan- tinople. PREFACE TO THE FIRST EDITION. This Work has been written -with a view to filling wliat has long appeared to me a void in Legal Literature, its aim being to present explanatory comments on the Law, illustrated by Cases, selected in sufficient number and with sufficient cai'e, to enable the reader to pursue for himself in detail'the matters debated or touched upon in the text. In the choice of topics for discussion, I have been guided in part by an examination of Standard Treatises, but yet more materially by an ex- perience of three years, devoted almost exclusively to the delivery of Lectures upon the leading branches and depart- ments of our Common Law. Whilst thus engaged in tracing out its principles and indicating its practice, my attention has been perpetually directed to points of difficulty or in- terest, imperatively needing elucidation, which had previously escaped my notice ; on all such points, which, as they pre- sented themselves, were from time to time scrupulously noted down, I have in the ensuing pages attempted more or less fully to throw light. But besides this, I have, during the period referred to, necessarily applied myself to a diligent scrutiny of decided cases, and to the task, by no means light or easy, of choosing therefrom such as seemed specially adapted for educational pui-poses, for assisting towards the interpretation of important statutes, or for fixing in the mind a knowledge and correct apprehension of legal axioms and doctrines. Of such cases many have been abstracted in the text of this Work ; others have been suggested for perusal in PEEFACE TO THE SECOND EDITION. The first issue of these Commentaries having been ex- hausted, they are again, in a revised form, offered to the Student — that portion of the Work which -was originally- prepared by my friend, Mr. Philip Francis (a), of the Middle Temple, having been edited by him. Although the bulk of the volume has, by an improved an-angement of the type, been materially reduced, its actual contents have, by the insertion of reported cases up to the latest moment, been much augmented. It is my earnest hope that these Commentaries, the elemen- tary character of which iS still preserved to them, may aid, in some slight degree, the progress of Legal Education and the advancement of Legal Science. HEEBERT BROOM. Temple, January 1st, 1861. (a) Now Sir Philip Francis, Judge of tlie Sxiprome Consular Court of Constan- tinople. PREFACE TO THE FIRST EDITION. This Work has been written -witli a view to filling what has long appeared to me a void in Legal Literature, its aim being to present explanatory comments on the Law, illustrated by Cases, selected in sufficient number and with sufficient cai'e, to enable the reader to pursue for himself in detail the matters debated or touched upon in the text. In the choice of topics for discussion, I have been guided in part by an examination of Standard Treatises, but yet more materially by an ex- perience of three years, devoted almost exclusively to the delivery of Lectures upon the leading branches and depart- ments of our Common Law. Whilst thus engaged in tracing out its principles and indicating its practice, my attention has been perpetually directed to points of difficulty or in- terest, imperatively needing elucidation, which had previously escaped my notice ; on all such points, which, as they pre- sented themselves, were from time to time scrupulously noted down, I have in the ensuing pages attempted more or less fully to throw light. But besides this, I have, during the period referred to, necessarily applied myself to a diligent scrutiny of decided cases, and to the task, by no means light or easy, of choosing therefrom such as seemed specially adapted for educational pui-poses, for assisting towards the interpretation of important statutes, or for fixing in the mind a knowledge and correct apprehension of legal axioms and doctrines. Of such cases many have been abstracted in the text of this Work ; others have been suggested for perusal in VIU PREFACE. the notes, wherein also decisions of minor importance have throughout been so far an-anged and classified, that they may readily be consulted in such manner as virtually to amplify the scope and proportionately to extend the useful- ness of the Volume. To him who has not, before opening it, seriously concerned himself with the study of the Law, I would offer one suggestion, that, avoiding technicalities and details, he should in the first instance familiarise himself with its more inviting portions, particularly with the Intro- ductory Chapter of each Book, and with the sub-divisions of Book I., in which the nature of Legal Eights, enforceable by action, and of Extraordinary Remedies is treated of (a). In these days of legislative activity and legal change, special difficulties have to be encountered by a professional writer. On him, perchance, is cast the duty of intei"preting enactments which have not previously been judicially con- sidered, or of re-shapiug, re-modelling, and re-arranging his materials when they had well-nigh been finally adjusted. By such difficulties I have foimd myself much emban-assed ; the greatest of them, however, occasioned by the passing of the Common Law Procedure Act, 3854, has, I trust, been wholly surmounted by a delay in printing some portion of the manuscript affected by it — a delay which eventually necessitated the interpolation of lettered pages towards the end of Book I. That particular part of the Volume just referred to, extending from p. 112 to p. 256 u, has been pre- pared by my friend Mr. Philip Francis (6), of the Middle Temple (already favourably known to the profession by his (a) The reader sliould perhaps be apprised, that the Law of Landlord and Tenant is excluded from consideration in the present Volume; an excellent elementary work on that subject having very recently appeared from the pen of the late learned Mr. J. W. Smith, edited by Mr. Maude. (i) Now Sir Philip Francis, Judge of the Supreme Consular Court of Constantinople. PKEFACE. in: " Common Law Procedure ") who has devoted to it several months of the most patient and unsparing labour. For the assistance thus rendered, I would here express my acknow- ledgments ; of its value, after careful examination — especially of the remarks on Pleading and the Practice connected therewith — I am fully sensible. With one word more, I may conclude. If it be true that Law is really worthy to be called a Science — if it be true that Lex est ratio mensque sapientis ad jubendum et ad deter- rendum idonea — if, further, we are justified in affirming that potius ignorantia juris litigiosa est quam scientia — is it indeed vain or inexpedient to hope that a sound knowledge of Legal Principles may gradually be desiderated by ^nd spread amongst the educated classes of this Country 1 Is it futile or unwise to predicate that much and enduring good would thence result ? As regards mj'self, whose main incen- tive to the preparation of these Commentaries has been a desire to facilitate the attainment of such end, the conscious- ness of having done so — in any, the slightest, degree — ^would amply compensate for past labours. HERBERT BROOM. Temple, December, \5th, 1855. CONTENTS. BOOK I. LEGAL EIGHTS AND REMEDIES. Division of the subject explained .... I'aye 1-2 CHAPTEE I. COMMON LAW — ^WHAT — OF WHAT ELEMENTS COMPOSED. Municipal Law and Common Law, what they are Lex Scripta — ^what and how construed . Lex non Scripta — ^what it comprises Lex Mercatoria — what it is Particular or Local Customs .... Their requisites ...... Customs of the Country ... Usages of Trade ..... Lex non Scripta — ^how declared ... Principles to which our Common Law conforms . . 3 . 3—7 7—10 , . 10 . 11 12—18 . 19 . 19 . 20 21—23 CHAPTER n. COURTS OF LAW. Sect. I. — The Superior Courts, 1. Origin, History, and Jurisdiction of the Superior Courts Hundred and Shire Courts .... The Aula Regis . . ... 24 25 27 XI 1 CONTENTS. Origin of Court of Exchequer ..... Common Pleas King's Bench .... Actual Jurisdiction of the Superior Courts Courts of Appellate Jurisdiction .... 2. Mode of Procedure in Banc and at Judges' Chambers Of what matters or classes of cases our Courts take cognizance ,....•■ Mode of Procedure in Banc ..... Business transacted at Judges' Chambers . Mode of Procedure at Chambers .... Sect. II. — Ordinary Jiirisdicfion of the County Court. Its general Jurisdiction .... As to splitting demands .... As to abandoning the excess of demand Cases excluded from jurisdiction of County Court Its peculiar Jurisdiction .... 29 34 37 42 47 49 49 50 55 57 59 62 64 66 72 CHAPTER III. THE NATURE OF RIGHTS ENFORCEABLE BY ACTION. Definition of the term " right of action " . . , . .74 Definition of the words " damnum " and " injuria " . . . 75 Danmum sine injuria,, whether actionable at law . . 75 — 86 Injuria sine damno, when actionable ... . . 86 — 94 Damnum et injviria may fail to give a right of action . . .95 Where damage is too remote ...... 95 93 Wiere proper remedy is by indictment . . . . .99 Penal action by party aggrieved . . . . . . . 101 Suspension of civil remedy when act is felonious . . .102 Redress when denied on grounds of public policy . . . . 103 Non-liability of judicial oflficers generally . . . . 104 107 Additional exceptions to rule — that injuria sine damno is action- able . > 107 CONTENTS. XIU CHAPTER IV. ORDINARY REMEDIES. Sect. I. — Action at Lmc. 1. Coiisiderations preliminary to issuiiig tte Writ . . .109 1. Whether the party proposing to sue has a colnplete cause of action . . . . . ..Ill 2. Eight of Action, whether postponed or extinguished altogether . . . . . . .113 3. Where action is brought under provisions of an Act of Parliament . . . . . . . 114 i. Whether notice of action is necessary . . .114 5. As to the form of action . . . . . . 117 Classification of actions . . . . .118 Actions ex contractu . . . . . . 119 Actions ex delicto . . . . . .125 Actions of Mandamus and Injunction . . .128 6. As to the choice of Parties to Actions . . .129 Plaintiffs in actions ex contractu . . . . 130 Defendants in actions ex contractu . . .135 Plaintiffs in actions ex delicto . . . .139 Defendants in actions ex delicto . . . . 143 2. Proceedings from Writ to Appearance . . . . .145 Introductory remarks . . . . . . . 145 The writ .of summons ...... 146 Common indorsement on writ . . ,. . . . 148 Special indorsement 149 Service of writ . . . . . . . 150 Concurrent writs ....... 151 Procedure when service is evaded . . . . . 153 Appearance . . . . . . .155 Service of writ where defendant is out of jurisdiction . .156 defendant is a British subject resi- dent out of jurisdiction . .157 Form of writ where defendant is a foreigner resident out of jurisdiction . . . . . . . . 158 Amendment of writ . . . . . . .158 XIV CONTENTS, 3. Proceedings from Appearance to Notice of Trial — The Pleadings in the Action . . . . . 159 The object and mode of pleading stated generally . .159 The Declaration . . . . . . 16? Kules of Pleading . . . . 165 Particulars of Demand . . . . . . . 168 Various modes of setting up a defence to action specified . 169 Demurrer . . . . . . . .170 Plea' in abatement . . . . . . 170 Pleas in bar . . ... 171 The general issue . . . . . . . . 172 What Pleas may be pleaded together . . . .175 What must be specially pleaded . . . . . 176 Pleas in confession and avoidance, how classified . .176 Pleas of Payment, Tender, Payment into Court, Set-off, Statute of Limitations, respectively considered 177 — 187 Pleas to the foundation of the action . . . . 187 Equitable Defences . . . . . . .188 The Replication and Pleadings subsequent thereto 189 — 190 Setting down demurrer for argument . . . . 190 Judgment by default . . . . . . .191 Notice of trial ........ 191 Discovery and inspection of documents . . . .192 Interrogatories . . . . . . . . 193 Preparation of evidence . . . . . .194 4. The trial at Nisi Prius 196 Writs of Execution 202 — 205 5. Proceedings by motion for New Trial, &c., subsequent to verdict ... ... 205 — 211 Sect. II. — Suit in the Countij Court. Proceedings in the Suit 212 — 216 Proceedings by certiorari and on appeal . . . 216 — 218 CHAPTER v.. EXTEAOHDINAEY REMEDIES. 1. By the act of the party injured . . . . . .219 Self-defence 219 CONTENTS. XV By Recaption 220 Eviction 221 Abatement of private nuisance ..... 222 pnMic nuisance . . . . . . 224 Distress ......... 225 2. By Operation of Law ....... 225 Retainer 226 Remitter 226 3. Remedial process afforded by the Courts . . . .226 Nature of remedy afforded on motion . . . . 226 Mandamus ........ 228 Injunction ......... 232 Prohibition 232 Quo warranto ........ 235 Certiorari 237 Procedendo 238 Interpleader ........ 238 Garnishments. ........ 239 Summary Procedure for recovery of small tenements . 240 Procedure to compel delivery of specific chattels . . . 241 Criminal information ....... 241 Habeas corpus ........ 245 Petition of right, &c 250 BOOK II. CONTRACTS. CHAPTER I. CONIEACTS GENERALLY — THEIR CLASSIFICATION AND ATTRIBUTES. Meaning of the term Contract Contract, executory, executed ^ Contract express, implied . , A Contract is founded on consent Incapacity to contract, how caused Lex loci — how it operates Obligatory force of Contract Classification, of Contracts . . 252 . 253 253—255 . 255 . . 256 . 257 . . 259 . 262 XVI CONTENTS. Contracts of Record ....... General remarks as to Contracts under Seal Covenants, what and different kinds of . . . Bond, what ...... Doctrine of Merger, as appHcable to deeds generally Estoppel hy Deed ....... EeUef in equity against fraudulent deed Consideration, whether necessary to support Specialty Contract under Seal may bind the heir Specialty how discharged ..... Definition of Simple Contract .... May be either executory or executed Terms of Contract must be definitively arranged and settled Mutuality in a Contract, what it is . Analysis of Simple Contract 1. The Request .... 2. The Consideration ... 3. The Promise ..... Rules of general application relating to Contracts special or simple ........ Efi'ect of Fraud on Contracts ..... Distinction between legal and moral fraud . Can the motive of the Contractor be inquired into ? . Does action lie for fraudulent breach of agreement ? Distinction between breach of warranty and fraud warranty and representation . Of Contracts void on various grounds in direct violation of law . opposed to public policy in restraint of trade Of Immoral Contracts ...... 263 — 269 . 269 -278 278 279 -292 292 -297 297 -303 . . 303 . 303 . . 304 305—307 . . 307 316 325 332 ■273- 282- 293- 298- 308- 316- 325- 335 et seq. 335 337 345 346 348 352 355 356 362 365 372 CHAPTER II. THE STATUTE OP FRAUDg, ETC. Parol Contract, what . . . . . . . . 375 Policy of the Statute of Frauds ...... 380 Contracts within Sect. 4 . . . . . . .381 Meaning of word " agreement " used in above section . 381, 382 CONTENTS. XVll Promise by executor to answer damages personally . . .384 Promise to answer for debt, &o., of another . . . . . 385 Of guarantees ......... 385 — agreements ia consideration of marriage . . . . . 392 — contracts concerning land, &c. . . . . 392 — 397 — . agreements not to be performed within a year . . ' . . 397 — the contract of sale ....... 399 — 408 Provisions of Sect. 17 409 What is within the operation of this section . . . .410 Its effect 411 What is an " acceptance and actual receipt " of goods within Sect. 17 411 Concluding words of Sect. 17 considered . . . 420 et seq. Signature by agent ........ 422 Contract within the Statute cannot be varied by parol . . .426 Other enactments to authenticate Contracts . . . .429 A specialty contrasted with a simple contract . . . . 429 Deed when requisite at common law ..... 433 Deed when required by Statute . . . . . . . 435 CHAPTER III. NEGOTIABLE INSTRUMENTS. Negotiable instrument, what ..... . 437 Chose in action, what ...... . . 437 not assignable .... . 438 Bill of Exchange, by whom introduced . . 440 How defined ...... . 442 Its form ...... . . 444 Its use in mercantile transactions . . 444 Accommodation BUI, what .... . . 445 Steps to be taken by holder of bill when due . . 447 Presentment . . . . . 447 Notice of dishonour ..... . 447 where not requisite . ■ 449 Nature of contract entered into by drawer . 452 by indorser . . 453 by acceptor . 453 Manner and effect of indorsement . . 459 xviii CONTENTS. AVhat is a. Cheque ...... 463 Transfer of Bill by indorsement 466 Notice of Dishonour ...... 468 Foreign Bill, what ...... . . 471 Promissory Note, how defined .... 473 Form of ..... . 477 Liabilities of parties to ... . . 478- -481 Bank Note ....... 482 rule as to presentment of . . . 483 Matters of defence in actions upon bills and notes 487- -497 Assignment of life or marine policy 497 Bill of Lading, what ..... . 497 Railway Scrip, whether assignable .... 497 CHAPTER IV. EVIDENCE OF CUSTOM OB TTSAQB TO EXPLAIN WRITTEN CONTRACTS. Rules for the construction of written contracts . . . . 502 As to ambiguous contracts ....... 503 Admissibility of evidence to identify subject-matter of contract . 505 identify parties to contract . . .505 explain mercantile terms . . .507 annex terms to written contract . 511 InadmissibiUty of evidence of usage to vary terms of written contract ......... 514 Questions as to admissibility and effect of evidence of usage, &c., how determined ........ 516 Enumeration of some leading rules of construction 523, 524 CHAPTER V. THE CAPACITY TO CONTRACT, HOW IT MAY BE AFFECTED. Sect. I. — Contracts with Mercantile Persons. Contracts by principal and agent . . _ _ Agency, how constituted • . . . . Fact of agency, how proved • . . . . Authority of agent, to what it extends Did the agent contract as such ? . . . Respective liability of principal imd agent . . .536- 526 526 529 533 536 -547 CONTENTS. XIX How an agent should contract by specialty . . . . . 547 Partnership, what it is at common law . . . , . §48 how modified by. statute . . . . .549 Agency of partner of trading firm, its nature . . . . 554 Continuance of liability of partner . . . . . .559 Contracts by corporations ...... 562 — 569 Projected companies . . . . . . . .569 Effect of bankruptcy on the capacity to contract . . ..571 Leading provisions of the Bankrupt Act, 32 & 33 Vict. c. 71 574 — 582 Sect. II. — Contracts with Nonrmercantile Persons. Contracts with an infant ........ 582 Eatification of promise by infant . . . . . .588 Effect of coverture on the capacity to contract . . 591 — 604 Contracts of lunatics and persons Non compotes mentis 604 — 607 Intoxication, its effect on contracts . . . . . . 607 Effect of duress on contracts . . . . . . .609 Incapacity of alien enemy or outlaw to contract . . . . 610 Contracts of executors and administrators . . . .611 — 616 CHAPTER VI. THE MEASURE OF DAMAGES IN ACTIONS OF CONTRACT. Meaning- of the term " damages " . . . . . . 621 Intention of party, whether relevant to issue in action of contract ......... 622 Nominal damages, when recoverable . . . . . . 623 Distinction between a penalty and liquidated damages . .627 Measure of damages on contract for sale of goods . . . . 630 in action for non-delivery of goods . .631 non-acceptance of goods . .632 on contract to replace stock . . .633 in action for price of goods sold . . .635 breach of warranty . . .635 contract of hiring and service . .637 contract for sale of land . . . 639 h 2 XX CONTENTS. Eule as to remoteness of damage considered . . . 641 — 647 Interest wlien recoverable in action ex contractu . . .647 Importance of a knowledge of the law of contracts . . .649 BOOK III. TORTS. CHAPTER I. TORTS GENERALLY THEIR NATURE AND CLASSIFICATION. Definition of a tort ........ 651 Eight of action for a tort whereon founded . . . . . 651 Rights of action ex delicto Class L Action for invasion of a right . . . .652 Class II. Action for breach of pubKc duty — producing damage ........ 655 Action for breach of public duty at common law . 656 statutory public duty . . .663 Class IIL Action for breach of private duty — producing damage . . . . 670 statutory private duty . 671 private duty at common law 672 Torta flowing from breach of contract . . . . .672 Privity, whether necessary to support action ex delicto . . .673 Action for breach of duty, undertaken . . . . .680 founded on fraud, &c., and consequential damage . .681 CHAPTER II. TORTS TO THE PERSON AND REPUTATION. Intention, whether material in action for bodily injury . .683 CONTENTS. XXI Action for assault and battery . . . . . . . 685 other bodily injuries . . . . . .687 where plaintiff has contributed to injury ■ . .688 LiabUity of master for tortious act of servant . . .690 — 699 attaching to owner of realty . . . . . 699 Effect of ratification of tort 701—707 Liability of master to servant for injury sustained by latter in his service .......... 708 Action for compensation where death has been caused by negligence .... .... 713 Torts to the health and comfort of individuals . . . . 716 by sale of unwholesome food . . . . . .717 by nuisances affecting health ... . . 718 — 721 by negligent treatment of patient . . . . .721 affecting personal liberty . . . . . , . 721 by false imprisonment 722 — 735 Meaning of word ' malice ' in civil proceedings . . . . 736 Action for malicious arrest . . . . . . .738 Torts to the reputation . . . . . . . . 741 Action for malicious prosecution . . . . . .741 maliciously suing out commission of bankruptcy . . 744 libel 745—759 As to privileged communications .... 748 — 756 Action for slander ........ 759 Action for slander of title . . . . . . . . 761 CHAPTER III. TORTS TO PROPERTY. Sect. I. — Torts to Seal Property. Ejectment 764—774 Trespass to realty ........'. 774 Who is a trespasser ab initio ? ...... 783 As to the ratification of a trespass . . . . . . 785 Nuisance to realty ........ 785 Obstruction of ancient lights 787 xxii CONTENTS. Prescriptive right to easement, how acctuired . . . .790 Land, what it is in legal contemplation . . . • Eight to flowing water ....-•• artificial watercourse ..•••• subterranean water ..•••• Sect. II. — Torts to Personal Property. 793 793 795 796 800- Chattels, personal; what . . . • • Torts to personalty, how classified .... in possession out of the owner's possession Bailments ...-•■• Class 1. Trust for exclusive benefit of Bailor Class 2. Trust for exclusive benefit of Bailee Class 3. Trust for benefit of both parties Liability of pawnee . innkeeper boarding-house keeper lodging-house keeper land-carrier . . . 822—837 Torts by third persons to chattels under bailment . . .838 800 800 809 809 809 810 813 814 815 819 822 822 CHAPTER IV. TOETS — NOT DIRECTLY AFFECTING- THE PERSON OR PROPERTY. Distinction between torts to absolute and torts to relative rights . 841 Torts to absolute rights considered . . . . . . 842 Estoppel in pais, its efiect . . . . . . .842 Torts to relative rights considered . . . . . . 847 in case of husband and wife ...... 847 parent and child . . . . . . 848 master and servant . . . . . .849 CONTENTS. XXIU CHAPTER V. THE MEASURE OF DAMAGES IN ACTIONS OF TORT. Dainages in tort are to be regarded as compensatory . . .852 Intention or motive of wrong-doer, wlietlier material n estima- ting damages ......... 857 Distinction between general and special damage . . .860 Consequential damage is recoverable, provided it be not too remote .......... 861 The question in what respects does a tort differ from a contract and from a crime, considered ..... 862 — 865 BOOK IV. CRIMINAL LAW. CHAPTER I. CRIMINAL LAW GENERALLY ITS ELEMENTARY PRINCIPLES. Importance of a knowledge of Criminal Law Ignorance of law no excuse for crim.e .... The law speaks imperatively to all . Meaning of the word " crime " . A crime is an offence of a public nature . Intention — ^what — ^how far material to constitute crime . Malice — ^what — ^in connection with criminal law Intention, how proveable ...... Mere intention not cognizable by law An attempt may be so . ; Capacity to commit crime Remarks as to irresponsibility of one non compos mentis . .882 Rule upon this subject laid down in M'Naghten's case . . 883 866 866 867 868 870 872 875 876 878 878 880 XXIV CONTENTS. Responsibility of one who commits crime wMlst intoxicated . .887 As to the criminal responsibility of infant . . . .888 feme coveri; . . . . 890 Classification of criminal oflfences — treasons, felonies, and mis- demeanors ........ 891 — 895 Offences summarily punishable by Justices of the Peace . .896 CHAPTER II. OFFENCES AGAINST THE SOVEREIGN, THE STATE, AND THE COMMUNITY. Allegiance, natural or local . . . . . . . 898 High treason, in what it consists . . . . .898, 901 What is an overt act of treason ....... 902 Remarks as to the doctrine of constructive treason . . . 904 Olfences against the State, endangering the public safety . .906 Conspiracy .......... 906 Oflfences against the Executive Power . . . . . . 908 Administration of Justice . . . .909 by judicial officers . . . 909 by private persons . .910 Public Peace 910 — 914 Riot 910 Forcible entry . . . . .913 Offences against Public Trade . . . . . . . 914 Public Morals and Police . . . .914 Nuisance .... 914 — 916 CHAPTER III. OFFENCES AGAINST INDIVIDUALS. Sect. I. Offences against the Person and Reputation. Degrees of homicide . . . . , . . .917 Murder — manslaughter, — ^how defined . . . . . 917 What is malice, express or implied . . . . . .918 CONTENTS. XXV As to the presumption tliat homicide is malicious . . . . 920 Homicide on provocation . . . . . • . .921 coupled with felonious intention . . . . . 924 caused by undue correction . . . . .925 through negligence . . . . . . . 926 of medical practitioner . . .927 of trustees of road, &c. . . . 928 in resisting officers of justice . . . . .928 where justifiable . . . . . . . 931 excusable ....... 931 Jurisdiction where homicide occurs abroad . . . . . 933 On indictment for murder, jury may convict of manslaughter . 934 Accessory to, before the fact, how punishable . . . .934 Indictment for aggravated assault, where it lies . . . . 934 Indictment for assault and battery, where it lies . . .936 The offence of libel, in what it consists . . . . . 939 Provisions of Mr. Fox's Libel Act considered . . . .941 6 & 7 Vict. c. 96, as to libel 942 Criminal information may be granted for libel .... 944 Indictment will lie for threatening to publish libel, &c. . . 944 Sect. II. Offences against Property. Simple larceny, how defined . . . . . . .945 Of what things larceny caimot be committed at common law 946—948 Property in chattel stolen, how laid ..... 948 Possession, actual or constructive . . . . . . 949 Where property alleged to have been stolen came rightfully into possession of the accused . . . . . .951 Provision as to fraudulent appropriation of goods bailed . .952 as to larceny by copartner . . . . .953 The taking must have been amjTio /ttrtodi . . . . . 953 Under what circumstances the appropriation of lost goods may amount to larceny . . . . . . .955 Doctrine of relation, how it may apply in larceny . . .958 The ' asportation,' what . . . . . . .960 Attempt to steal . . . . . . . . . 961 Eeceiving stolen goods . . . . . . . .961 Obtaining goods or money by false j)reteuces . . . . 964 XXVI f'ONTENTS. Embezzlement , . . . . • • ■ .971 Larceny by a clerk or servant . . . ■ • . . 9 / 1 Larceny from the person . . . • ■ • .974 Eobbery ......••••• ^''* Stealing ia dwellmg-liouse . . . . • ■ .976 Housebreaking ....••••• "' ' Burglary ....•••••• ^' ' CHAPTER IV. THE PROCEEDINGS AT A CRIMINAL TRIAL. General view of the jurisdiction of Justices of the Peace . 983 et seq. Procedure by indictment . . . . . . . 988 Mode of procedure at the trial ...... 992 Entry of judgment and proceedings subsequent thereto . . 999 Court for consideration of Crown Cases Reserved . . .1001 Pardon — absolute or conditional ..... 1001, 1002 ADDENDUM TO PAGE 298. The Stat. 32 & 33 Vict. c. 46, enacts (s. 1) as follows : — That " in the administration of the estate of every person who shall " die on or after Jan. 1, 1870, no debt or liability of such person shall " be entitled to any priority or preference by reason merely that the " same is secured by or arises under a bond, deed, or other instrument " under seal, or is otherwise made or constituted a specialty debt ; but " all the creditors of such person, as well specialty as simple contract, " shall be treated as standing ia equal degree, and be paid accordingly " out of the assets of such deceased person, whether such assets are " legal or equitable, any statute or other law to the contrary notwith- " standing : Provided always, that this Act shall not prejudice or " affect any lien, charge, or other security which any creditor may hold " or be entitled to for the payment of his debt." TABLE OF CASES. A. ABBOT V. Blofield, 132 Abbott V. Feary, 54 — V. Macfie, 689 Ablett V. Basham, 148 Abley v. Dale, 5, 730 Abrabam«. Beynolds, 661, 709, 710 Absolon V. Marks, 477, 478 Aeebery v. Barton, 233 Acey V. Femie, 540 Ackermann v. Ehrensperger, 649 Acraman v. Morrice, 415 Acton V. BlundeU, 79, 82, 794, 797 Adams v. Andrews, 434, 686 — V. Freemantle, 44, 52 — V. Jones, 460 — V. Lindsell, 305 — V. Lloyd, 192 — V. Wordley, 377 Addison v. Gandassequi, 537 — V. Tbe Mayor of Preston, 121, 323 Agacio V. Forbes, 558 Agar V. Alhensenm Life Ass. See. 569 Agra and Masterman's Bank v. Leigh- ton, 488 Agricultural Cattle Insurance Co. (The) V. Fitzgerald, 492 Aitkin, Re, 227 Alcock V. Alcock, 606 Alcinous V, Nygrin, 610 Alder v. Boyle, 111 — V. Keighley, 622, 627, 630 Alderson v. Langdale, 493 • — V. Waistell, 683 Aldous V. Cornwell, 494 Aldred'a case, 720 Aldridge v. Great Western R. C, 805, 831, 832 Aldridge v. Haines, 733 — V. Johnson, 401, 4C5 Alexander t). Barker, 205, 558 — V. Burchfield, 482 — V. Gardner, 405 — V. Mackenzie, 458 — V. N. -Eastern K. C, 754] — V. Parker, 200 — V. Thomas, 443 Allan V. Sundius, 511 — 0. Waldegrave, 542 Allaway v. Wagstaff, 85, 793 AUday v. Gt. Western R. C, 831 Allen, Be,. 248 — V. Allen, 585 — V. Bennet, 383, 421 — V. Bussey, 149 — D. Cameron, 636 — 0. Cary, 197, 198 — 11. Edmundson, 449 — V. Hayward, 697 — i\ Hopkins, 134 — V. Impett, 129 — V. Kemble, 452, 472 — i-. The Sea, Fire, and Life As - surauce Co., 478 — V. Sharp, 127 — V. Smith, 783, 821 — V. "Walker, 452,453 — V. Wright, 726 Alleynew. Reg., 267, 284, 1001 AUhusen v. Malgarejo, 158 Allsop V. Allsop, 685, 731 AUum V. Boultbee, 206 AUwood V. Hey wood, 123 Alsager v. Close, 853 Alston V. Grant, 671, 701, 786 — v. Herring, 97, 636, 862 — V. Scales, 781 Alton V. Midland R. C, 317, 837, 850 XXVIU TABLE OF CASES. Ambergate, &c., R. C. v. Midland E. C, 784 Amann i>. Damm, 752 AmbroBS v. Kerrison, 604 Amott V. Holdeu, 183 Ancona v. Marks, 310, 460 Anderson v. Martindale, 270 — V. Eadoliffe, 365 — V. Thornton, 347 Audrewea v. Elliott, 46, 196 — Ex parte, 249 Andrews «. Belfield, 409 — V. Dally, 542 — V. Elliott, 843 — V. Hailes, 430 — V. Lawrence, 493 — V. Harris, 729 — V. Smith, 387 Anon. (LoSft, 155), 243 — (6 Mod.), 232 — (IP. Wm.), 232 — Ex parte, 244, 939 — (1 H. & C, 664), 155 — «. Handoock, 585 — (11 Mod.), 746 Anonymous case, 522 Ansell V. Baker, 282 — u. Smith, 177 Anthony-!). Haueys, 220 Apps V. Day, 206, 856 Appleby ». Meyers, 622 Appleton V. Binks, 135, 547 — V. Campbell, 372 Aranguren v. Scholfield, 497 Archer v. Baynes, 421 — V. James, 257 — 0. Marsh, 369 Arden v. Goodaore, 90, 853 — V. Tucker, 558 Arkwright v. GeU, 796 Arlett V. EUis, 222 Armlstead v. Wilde, 820 Armory v. Delamirie, 127, 140, 801, 853, 958 Armstrong v. Christiani, 469 — V. Toler, 369, 360 Armsworthw. The South Eastern R. C, 713, 714 Armytage v. Haley, 856 Arnold v. Bainbrigge, 136 — V. Bidgood, 133 — V. Hart, 117 — V. Jefferson, 838 — V. Poole (Mayor), 562, 564 — V. Ridge, 5 — 17. Webb, 123 Arrowsmith v. Le Mesurier, 722 Arthur v. Barton, 635 — -0. Beales, 489 — o. Bokenham, 19 Ash V. Daunay, 126, 782, 784 — V. Pouppiville, 190 Ashby 11. Ashby, 614 — V. White, 86, 89, 92, 94, 101, 653, 670 Ashcroft V. Bourne, 733 Asher v. Whitlock, 765 Ashley V. Harrison, 95, 96 Ashmole*. Wainwright, 610 Ashpitel V. Bryan, 458, 842, 843 Ashton V. Sherma/n, 540 Ashworth v. Mounsey, 320, 504 — V. Stanwix, 143, 709 Askew's (Dr.) case, 228 Aslin V. Parkin, 766, 773 Aspdin V. Austin, 307 Aspinall v. Wake, 613 Assop V. Yates, 97, 689 Astley V. Johnson, 489 Atkins V. Curwood, 699 Atkinson v. Deuby, 287, 364 — ■ V. Hawdon, 493 — V. Pooock, 339, 344 — V. Stephens, 328, 535, 626 — V. Warne, 724 Atkyns ». Horde, 765 — V. Kinnier, 369, 629, 869 — V. Pearce, 602 Atlee V. Backhouse, 542 Attack «. Bramwell, 853, 854 Att.-Gen. v. Bertrand, 1001 — V. Hallett, 5, 32, 44 — V. Hertford (Marquis), 7 — V. Hollingworth, 289, 361 — V. Kingston, 44 — V. Badloff, 869 — V, Shef6.eld Gas Consumers' Co., 718 — ■». Sillem, 873 — V. Windsor, Dean of, 48 Attwood V. Emery, 508 — V. Ernest, 123, 806 — V. Munnings, 458 — i>. Small, 339, 343, 355 — V. Taylor, 648, 649 Atwooll V. Atwooll, 181 Aulton V. Atkins, 253, 651 Austin V. Debnam, 739 — V. Evans, 206 — 0. Great Western E. C, 836 — V. KoUe, 460 — V. Llewellyn, 183 — V. Manchester, ShefiSeld, and Lincoln R. C, 828, 833 — V. Mills, 215 Australasia (Bank of) n. Breillat, 357, 556 Autey V. Hutchinson, 636 Avards v. Rhodes, 46 Avery v. Bowden, 113 TABLE OF CASES. XXIX Avery ». Langford, 371 Awde V. Dixon, 455 Aylett V. Lowe, 121 Ayling v. WMoher, 133, 141 Ayrey v. Feamsldes, 477 Az§mar v. Casella, 348 B. Babonneau v. Farrell, 758 BaokhouBe v, Bonomi, 75, 85, 94, 186, 785 Bacon v. Dnbarry, 547 Baddeley v. Denton, 67 Badeley v. Vigurs, 854 BagnaU v. London and North Western R. C, 85 Bagsliaw v. Eastern Union B. C, 132 Bagueley v. Hawley, 818 Bailey, In re, 248 — V. Bid-well, 490 — V. Bodenham, 464, 482 — V. Buckland, 153 — V. Harris, 358 — V. Macanlay, 630 — V. Porter, 470, 481 — V. Stephens, 16 — V. Sweeting, 420 Bainbridge v. Wade, 334, 382 Baines v. Ewing, 528, 530 Bainford v. Turner, 786 Baird v. Fortune, 187 — V. WiUiamson, 85 Baker, Be, 69 — u. Bank of Australasia, 238, 458 — V. Gray, 434 — V. London and South Western K. C, 193 — V. Sampson, 601 — V. White, 364 Baldey v. Parker, 417 Balfe V. West, 680, 813 Balfour v. The Sea, Fire, &c., Co., 438 Ball V. DansterTilIe, 558 — V. Kobison, 406 BaUy ®. Wells, 277 Balmforth v. Pledge, 216 Bamberger v, Oommercial Credit, &c,, Society, 169 Bamfield v. Tupper, 185 Banco di Torino v. Hamburger, 198 Bandon (Earl) v. Becker, 267 Bankart v. Bower, 111 Banks v. Bebbeck, 241 Bannerman v. White, 352 Banyster v. Tmssel, 611 Barber v. Fox, 136 — V. Lamb, 268 Barber v. Lemon, 489 — -i;. Lesiter, 96, 741, 744, 862 — -0. Pott, 538 — V. Richards, 461, 462 Barber Surgeons of London v. Pelsou, 566 Bardell v. Miller, 149 Barden v. De Keverberg, 592 Earham v. Dennis, 849 Barker v. Allen, 376 — V. Braham, 731 — V. Highley, 636 — u Midland R. C, 679 — V. St. Quintin, 285 — V. Sterne, 455, 471 — V. Stone, 465 Barkworthi). EUerman, 322 Barley v. Walford, 344 Barlow v. Browne, 322 Barnardiston v. Soame, 20, 77, 104, 107 Barnes v. Ward, 658, 667, 715 Barnett v. Allen, 760 — V. Earl of Guildford, 139, 141, 612, 777 — V. Lambert, 669 Baron v. Husband, 322 Barough v. White, 482 Barrett v. Long, 750, 758 Barrick v. Buba, 113, 610, 623 Bairinger v. Handley, 163, 166 Barronet, Ex parte, 867 Barrow v. Amaud, 861 Bartholomew v. Bushnell, 349, 673 — V. Markwick, 113, 634 Bartlett v. Baker, 659 — V. Holmes, 496, 635, 636 — V. Purnell, 423 — II. Vinor, 358 — V. Wells, 167, 430, 691, 596 Barton v. BrickneU, 732 • — V. Gainer, 434 * Bartonshill Coal Co. v. M'Guire, 711, 713 — V. Eeid, 691, 710 Barwick v. English Jt. Stock Bk., 338, 343, 693, 695 — V. Thompson, 767 Basebe v. Matthews, 744 Bassett v. Godschall, 732 Basten v. Oarew, 733 Batard v. Hawes, 312, 552, 626 Bateman v. Ashton-under-Lyne (Majoi', &c., of), 669 — V. Bluck, 225 — V, Joseph, 469 — V. Lyall, 222, 761, 786 — V. Mid- Wales R. C, 564, 569 Bates V. Bates, 168 — V. Hewitt, 338 XXX TABLE OF CASES. Batson v. King, 388 BattishUl v. fieed, 780, 854, 856 Battley v. Lewis, 560 Bawden v. Howell, 558 Baxendale v. Eastern Counties E. C, 827 — V. Great Western B. C, 828 Baxter v. Portsmonth (Earl), 604 — V. Taylor, 781 Bajley, Ex parte, 227 — V, Fitzmaurice, 304 — V. Wilkins, 533 Baylis v. Le Gros, 129, 276 — V. Dinely, 583 — V. Strickland, 729, 733 Baynes v. Brewster, 723, 724 Bazeley v. Forder, 601 Beadle v. Sherman, 133 Beale v. Caddick, 553 — V. Mouls, 560 — V. Sanders, 325 — V. South Devon B,. C, 830, 831 Bealey v. Stuart, 305 Beard v. Webb, 592 Beardmore v. Carrington, 856 Beatson v. Skene, 751 Beanraitt v. Scott, 106 Beavan v. M'Donnell, 606 Beaufort (Duke) v. Swansea (Mayor), 510 — r. Smith, 13 Beaumont v. Brengeri, 412 — V. Greathead, 431, 489 — V. Beeve, 297, 332 Becher v. Jones, 649 Beck V. Eobley, 467 Beckett v. Midland B. C, 99 Beckford v. Crutwell, 509 Beckham v. Drake, 134, 506, 558, 572, 628, 629, 633, 638 Beckhouse'i). Hall, 386 Beckwith v. Philby, 725 Bedford v. Bagshawe, 344, 677 — V. Deakin, 660 Beech v. Jones, 446 Beechy v. Brown, 347 Beeman v. Duck, 458 Beer v. Beer, 124 Beeston v, Weate, 796 Begg V. Forbes, 146 Behn v. Burness, 347, 348, 352, 637 — ■„. Kemble, 344, 675, 842 Eelcher v. Smith, 238 Beldon v. Campbell, 535 Belfast and Ballymena, &e., E. C. v. Keys, 835 Belknap's ease, 592 Bell V. Buckley, 460, 489 — V. Carey, 181, 624 j Bellv. Ingestre (Visct.). ^61 — V. Midland B. C, 780, 858 — V. Morrison, 182 — V. Simpson, 858 Bellamy v. Burch, 761 — V. Marjoribanks, 10 Bellingham v. Clark, 131, 134 Belshaw v. Bush, 114, 177, 488, 496 Belson, In re, 248 Bendix v. Wakeman, 133, 596 Benett ». The Peninsular and Oriental Steam Boat Co., 206 Benham v. United Guarantee, &o. Co., 353 Bennett v. Allcott, 849 — V. Bayes, 854 — V, Deacon, 749 — V. Dean, 56 — -u. Mellor, 819 Bennison v. Cartwright, 792 Benson v. Chapman, 535, 536 — V. Duncan, 535 — V. Flower, 571, 573 — V. Paull, 129 Bentall v. Burn, 414 Bentley v. Fleming, 205 — V. Griffin, 699 Berkeley v. Elderkin, 215 — V. Hardy, 434, 547 Berkley v. De Vere, 168 Berkshire Woollen Co. i). Proctor, 521 Bernstein v. Baxendale, 826 BeiTy V. Alderman, 491 Berry v. Da Costa, 623, 855 Berwick v. Andrews, 134 — V. Horsfall, 310, 508 — (Mayor, &c.) v. Oswald, 299 Besant v. Cross, 377 — V. Great Western E. C, 668 Bessell v. Wilson, 734 Besset, Ex parte, 246 Bessey v. Windham, 291 Best V. Hayes, 239 Beswick v. Capper, 62 Betts V. Burch, 627, 629 Bevau v. Whitmore, 312 Bevans v. Bees, 178 Beverley v. The Lincoln Gas Light and Coke Co., 563 Beverley's case, 605, 607 Bibby v. Carter, 83, 84, 785 Biccard v. Shepherd, 511 Bickerdike v. ]3ollman, 449 Bickerton v. Burrell, 545 Bidgood V. Way, 132, 594 Biffin V. Bignell, 600 Bigg V. Whisking, 417 Bignell v. Buzzard, 762 — V. Harpur, 614 BUI V. Bament, 113, 414, 420 TABLE OF LIASES. XXXI Biuet V. Pioot, 157 Biugle, Re, 492 Binks V. South Yorkshire K. C, 658, 715 Binnington v. Wallis, 297 Birch V. Liverpool (Earl), 398 Birchfield v. Moore, i9i Bird V. Boulter, 423 — V. Brown, 310, 702, 707 — ■. Heming, 271, 398 Chesman v. Nainby, 367 Chesterfield, &o. Co. v. Hawkins, 130 — (Earl) V. Janssen, 364 Cheveley v. Fuller, 304 ^- V. Morris, 165 Chew V. Holroyd, 70 Chidell V. Galsworthy, 435 Child, Ex parte, 248 — V. 'Affleck 749 ChUders v. Wool'er, 340, 675, 681, 730, 842 Childs V. MoniDs, 614 Chilton V. Carmgton, 122 — V. London and Croydon E. C, 694, 856 Chinery v. Viall, 126, 403, 805, 839, 853 Chinn ». Ballen, 212 Chippendale v. Lancashire and York- shire K. C. , 833 , — V. Tomlinson, 574 Chivers v. Savage, 67 Chorleyw. Bolcot, 327 Chown V. Parrott, 534, 846 Christie v. Bell, 147 — V. Borelly, 325 , — V. Winnington, .272 Christopherson v. Bare, 686 — 'V, Lotinga, 192 Chndleigh's case, 6 Church V. The Imperial Gas Light and Coke Co., 664 Chnrchill v. Bertrand, 614 — V. Siggers, 739, 740 Churchyard v. Reg., 113 Churchwards. Reg., 151 Cincinnati (Bank of) v. Buckingham's Executors, 259 Clapham v. Shillito, 354, 355 Clare v. Maynard, 646 Clark D. Alexander, 185 — V. Gilbert, 807 — V. Gray, 824 — V. Lazarus, 491 — V. Newsam, 735 — V. Smith, 147 Clarke, In re, 249 — V. Arden, 205 — V. Crofts, 134 — V. Dickson, 336, 344, 348, 842 — V, Guardians of the Cuckfield Union, 564, 666 — V. Hart, 843 — V. Holmes, 709 Clarke v. Martin, 475 — V. Percival, 476 — 1). Roystone, 514 — 11. Sharpe, 470 — V. Spenoe, 408 — V. Stancliffe, 217 — V, Westrope, 45 Clarke, app., FuUer, resp., 421 Clarke's case, 249 Clay V. Oxford, 135 — v: Southern, 131, 647 — V. Tates, 407 Clayards v. Dethick, 689 Clayton v. Corby, 16 . — V. Lord Nugent, 503, 505 Clayton's case, 271 Claxton V. Swift, 442 Cleave ». Jones, 185 Clegg V. Dearden, .85, 126 Clements v. Ohrly. 741 — V. Todd,' 570 Clemontson v. Blessig, 610 Clerk ». Laurie, 692 — V. Mayor,-&o, of Berwick, 247 Cleveland ». Spier, 709 Clifford V. Brandon, 723 — V. Laton, 600 Clift V. Sehwabe, 510, 832 Clifton, Ex parte, 227 — V. Hooper, 89 Clossman v. White, 123 Clothier v. Webster, 658, 786 Clubb V. Hutson, 284 Clugas V. Fenaluna, 369 Cobb V. Becke, 320 Cobbett V. Grey, 685, 722 — V. Hudson, 729 — V. Slowman, 247 — ■„. Warner, 116, 774 Cochran v. Eitberg, 616 Cochrane v. Green, 189 Cockayne v. Hodgkisson, 74'>, 751 Cookburn v. Alexander, 611, 637 Cookerell v. Aucompte, 655 — ■!!. Van Diemen's Land Co., 631 Cocking V. Ward, 393 Cookrill V. Sparks, 185, 331 Cocks V. Purday, 610 Coe V. Piatt, 165, 668 — V. Wise, 659 Coffee V. Brian, 552 CoggsD. Bernard, 673, 630, 811, 814, 816, 823 Cohen v. Huskisson, 724 Colchester (The Mayor of) v. Brooke, 225, 915 Coldham v. Showier, 383 Cole V. Bishop, 336 — V. Sherard, 152 c 2 XXXVl TABLE OF, CASES. Coleman v. Biedman, 489 — V. Riches, 698, 847 — V. South Eastern B. 0,, 656 Coles V. Striok, 365 CoUen «. Wright, 254, 352, 540, 545, 646, 647 CoUett V. Poster, 698, 705, 731 — V. London and North Western E. C, 127, 668 CoUingwood ■». Berkeley, 631 Collins V. Blantem, 283, 287, 290, 358, 360 — V. Brook, 322 — V. Cave, 79, 95, 678, 682, 862 ■ — V. Evans, 840 — V. Johnson, 227 — V. Martin, 462 — V. Middle Level Commissioners, 659, 861 CoUis V. Seldon, 661, 678 — V. Stack, 185 Colpoys V. Oolpoys, 505 Colyer v. Pinch, 655 Combes's case, 527, 547 Conflans Stone Quarry Co. v. Parker, 496 Congleton (Mayor of) v. Pattisson, 276 Congreve v. Evetts, 434 Connop V. Levy, 344, 636 Constable v. Nicholson, 16 Cook V. Colehan, 444 — V. Field, 365 — V. Hartle, 852 — V. HopeweU, 77, 89, 431 — V. Lister, 431, 488 — V. Moffatt, 259 — V. Ward, 745, 756 — ■!>. Wright, 76, 318, 489 Cooke V. Clayworth, 608 — V. Sealey, 536, 558 — V. Waring, 337, 688 — -0. Wildes, 748, 760, 751 — ■!!. Wilson, 547, 671 Cooksey v. Haynes, 206 Cooling V. Great Northern R. C, 172, 206 Coombs V. Bristol and Exeter E. C, 406, 417, 418, 527 — V. Dibble, 364 Coomer v. Latham, 730 Cooper V. Asprey, 239 — V. Bill, 405, 498 — V. Chitty, 126 — V. Hubbuok, 19, 792 — V. Lloyd, 601, 602 — u. Parker, 130, 333, 432 — V. Simmons, 583, 866 — V. Slade, 541 — V. Stephenson, 226, 846 — V. Willomatt, 840 Cope V. Albinson, 304 — •». Eowlands, 357, 3 58 — V. Thames Haven Dock and E. C, 563, 568 Copeman v. Hart, 62 Copper Miners' Co. (The) v. Fox, 564, 566 Coppin V. Walker, 424 Coppock V. Bower, 363 Corbett v. Brown, 340, 861 — ■„. Paekington, 120, 672, 673 — u. Swinburne, 177 Corby V. Hill, 658, 661, 671 Cork V. Baker, 392 Cork and Bandou E. C. v. Cazenove, 586 •~— — -v, Goode, 183, 184, 270 Corner v. Shew, 613, 614 Cornfoot v. Fowke, 339, 340, 342 Comforth v. Smethard, 185 Cornill V. Hudson, 184 Cornish v. Abington, £31, 843 Comman v. Eastern Counties E. C, 656, 688 Cornwell v. Metropolitan Commissioners of Sewers, 658, 659 Corpe V. Overton, 583 Corsar v. Eeed, 200 Cort V. Ambergate, &c. E. C, 113, 114, 630, 670 Cory V. Scott, 450 — V. Thames Iron Worki, &c., 645 Coryton v. Lithebye, 140 Coster V. Merest, 205 Cotes V. Davis, 628 Cothay v. Fennel, 539 Cotterell v. Jones, 79, 744 Cotterill v. Hobby, 860 Cotton V. James, 744 — V. Wood, 715 Couch V. Steel, 108, 664, 665, 713, 717 Couling V. Coxe, 662 Conrtauld v. Lee, 788 Couiiienay v. Earle, 673 Couturier v. Hastie, 317, 389, 508 Covas V. Bingham, 518 Coventry v. Apsley, 186 Cowan V. Milbourn, 372 Coward v. Baddeley, 685, 937 — V. Gregory, 138 Cowbnrn v. Wearing, 171 Cowell V. Anman Co., 72 — V. Watts, 613 Cowgill, Re, 248 Cowley V. Mayor, &c. of Sunderland, 665, 709 Cowie V. Stirling, 477 TABLE OF CASES. XXXVll Cox V. Burbidge, 683 — V. Glue, 139, 778 — V. Hickman, 549 — V. Hubbard, 545, 558 — V. Leech, 226, 846 — V. Masterman, 463, 486 — V. Midland Counties B. C, 533 — V. MitoheU, 268 — V. Muncey, 851 — 1). Purday, 610 — V. Troy, 454 Coxeter v. Parsons, 233 Coxbead v. Bichards, 749, 751, 752 Coxoni). Great Western E. C, 834 Grafter ii. Metropolitan B.C., 656 Craig ». Hassell, 745 Cranoh v. White, 143 Cranston v. Marshall, 351 Craufurd v. Cooks, 171, 561 Crawford's case, 248 Crawshay v. Thompson, 89 Crease v. Barrett, 205 Creed v. Fisher, 206 Crepps V. Burden, 733 Crespigny v. Wittenoom, 6 Cripps V. HartnoU, 389 — V. HiUs, 588 Grhckley, Ex parte, 364 Croft V. Alison, 698 — V, London and North Western R. C, 113 — ■». Lumley, 767, 770 — V. Stevens, 751 Crofton V. Pool^ 574 Crofts V. Beale, 489 — 'u. Middleton, 545 Crenshaw v. Chapman, 842 Crooekewit u.' Fletcher, 113, 493 Cropper v. Cook, 19, 546 Crosby v. Leng, 102 — V. Wadsworth, 395, 778 Cross V. Andrews, 684 — V. Cheshire, 552 — V. Williams, 530, 555, 670 Crosse v. Seaman, 61 Crossfield v. Morrison, 161, 561 — V. Such, 123, 612 Crosthwaite v. Gardner, 135, 614 Crouch V. Great Northern E. C, 856 — V. The London and North Wes- tern E. C, 825, 833, 835 Crow V. Bobinson, 240 — V. Bogers, 130, 320 Crowder v. Tijkler, 718 Crowe V. Clay, 495 Crowhnrst v. Laverack, 333, 397 Crowley v. Titty, 241 Crowther v. Farrer, 316 Crozer v. Pilling, 739 Crump V. Day, 239 OuUen V. Thomson's Trustees, 144, 681, 702, 842 Cumber v. Wane, 177, 431 Cumberlege v. Lawson, 272 Gumming v. Inoe, 497, 609 — V. Shand, 87 Cummins v. Cummins, 612 Cundell v. Dawson, 359 Cunliffe v. Harrison, 405, 415, 421 — V. Whitehead, 447 Curlewis v. Clark, 432 — V. Mornington (Earl of), 187 Currie ». Anderson, 417 Curson v. Belworthy, 336 Curtis V. Curtis, 760 — V. Pugh, 413 Cusack V. Bobinson, 411, 419 Cuthbert v. Gumming, 19, 200, 511 Guthbertson v. Parsons, 217, 692, 697 — V. Irving, 430 Cutter V. Powell, 638 Cutts V. Surridge, 168 Czech V. General Steam Navigation Co., 666 Da Costa v. Jones, 364 Daines v. Hartley, 759 Dakin v. Brown, 715 — V. Oxley, 636 Dalby v. Hirst, 15, 19 Dale V. Humfrey, 621, 546 Dalton V. Denton, 661 — 0. Midland E. C, 133, 239, 696 — V. South Eastern E. C, 716 Dalyell v. Tyrer, 692 Dammaree's case, 904 Danby v. Lamb, 122 Dane v. Kirkwall, 606 Daniel w. Metropolitan E. C, 656 Daniels v. Fielding, 739 Dansey v. Eichardson, 694, 783, 814, 822 Danube, &c. E. G. -v. Xenos, 113, 634 Darby v. Ouseley, 748, 760 D'Arcy v. TamarR. C, 283 Darley v. Beg., 235 Darnell v, Williams, 491 Darnell's case, 246 Dartnall v. Howard, 812 Dauglish v. Tennent, 287 Davenport v. Nelson, 695 Davidson v. Cooper, 273, 492, 493 Davie v. Hopwood, 165 Davies v. Churchman, 137 — V. Edwards, 185 — V. Fletcher, 729 XXXVlll TABLE OF CASES. Davies v. Jenkins, 79, 152 — V. Mann, 225, 688 — V. Marshall, 843 — V. Penton, 628 — V. Swansea (Mayor), 115 — V. Underwood, 637 * — u . ■Westmacott, 167 — V. Wilkinson, 477 — V. Wniiams, 224, 790, 849 BaTis V. Bomford, 430 — V. Burrell, 115, 221 — V. Clarke, 469 — V. Banks, 139, 424, 774, 839 — -u. Jones, 127, 272, 503 — V. Mason, 371 — v. Eussell, 726 — V. Smyth,' 648 — 0. Walton, 67 — ■!/. Williams, 79 Davison v. Duncan, 756 — V. Wilson, 223, 224 Davy V. Pepys, 137 Davys, app., Douglas, resp., 987 Dawes v. Peck, 139, 406 — V. Solomonson, 148 Dawkes v. Deloraine (Lord), 443 Dawson v. CoUis, 173, 351, 636 — V. Lawley, 534 Day V. Bather, 819 — ■ V, Savage, 22 Deacon v. Gridley, 316 Dean v. Peel, 849 Deane v. Clayton, 666, 864 Dearden v. Townsend, 836 Dearie v. Ker, 211 Dearie v. Barrett, 178 Death, Ex parte, 234 De Beauvoir v. Owen, 183 De Begnia v. Armistead, 357 Decks V. Strutt, 72 Degg V. Midland Counties E. C, 655, 7C9 De Grave v. Mayor, &c. of Monmouth, 564 De Haber v. Queen of Portugal, 234 De la Kosa v. Prieto, 47, 326 De la Rue v. Fortesoue, 129 Delaney v. Fox, 430 De la Vega v. Vianna, 47 Delegalr. Highley, 744,765, 756 Deller v. Prickett, 239 De Mautort v. Saunders, 554 De Medina v. Grove, 267, 739, 745 Dendy v. Henderson, 365, 368 — V. Nicholl, 76? Dengate v. Gardiner, 132, 141, 594 Denison, JEx parte, 232 Denton v. Great Northern E. C, 681, 835, 838, 862 — V. Eodie, 649 Deposit and Gen. Life Ins. Co. v. Ays- cough, 336 De Pothonier v. De Mattos, 132 Depperman v. Hubbersty, 641 Derecourt v. Corbishley, 724, 728, 930 Derisley li. Custance, 297 De Eoo V. Foster, 591 De Kothschild v. The Eoyal Mail Steam Packet Co., 974 Deslandes v. Gregory, 545 De Tastet v. Shaw, 226 Devaux v. Steinkeller, 391 De Wahlv. Braune, 133, 592, 610 Dews V. Eiley, 729 Dewters v. Townsend, 482 Diamond v. Sutton, 157 Dicas V. Lord Brougham, 106 Dick I). ToUhausen, 137, 210, 266, 595 Dickenson w. Watson, 938 Dicker o. Jackson, 111 Dickinson v. Grand Junction Canal Co. , 91, 92, 797, 799 — o. Marrow, 135 — V. North Eastern E. C, 714 Dickson v. Lord Combermere, 907 — V. Swansea E. C, 188 Digby V. Thompson, 89, 745 Diggle V. London and Blackwall R. C, 563 Dimeck v. Corbett, 637 Dimes's case, 249 Dimes v. Grand Junction Canal Co., 205, 233 — V. Petley,. 223, 225 Dimmack v. Bowlby, 740 Dingle v. Hare, 636 Ditcham v. Bond, 849 Dixon V. Bell, 666j 687,' 849 — V. Bovill, 439 — V. Clark, 178 — V. Fawcus, 862 — V. Hatfield, 387 — V. Hurrell, 600, 602 — ». Nuttall, 480 — v. Smith, 761 — •■'. Yates, 401, 404 Dobbin v. Foster, 560 Dobell V. Hutchinson, 383 Dobie V. Larkan, 489 Dobree v. Eastwood, 469 Dobson V. Blaokmore, 101, 779 — f. CoUis, 398 — V. Espie, 431 Dodd V. Burchell, 782 . Dodgsou r. Bell, 593 — V. Scott, 267 Doe d. Ashburnham v. Michael, 208 — d. Baddeley v. Massey, 183 — d. Brayne v. Bather, 766, 773 — d. Church v. Poutifex, 463 TABLE OF CASES. XX XIX Doe d. Croft v. Tidbury, 430 — d. Daniel v. Woodroffe, 226 — d. Darlington (Lord) v. Cook, 770 — d. Davies v. Thomas, 574, 768 — d. Davy v. Oxenham, 1 82 — d, Duntze v. Duntze, 159 — d. Qarnons v. Knight, 272 — d. Hellyer v. King, 773 — d, Hudson v. Leeds and Bradford R. C, 783 — d. LansdeU v. Gower, 182 — d. Palmer v. Eyre, 183 — d. Parsley v. Day, 777 — d. Pennington v. Taniire, 568 — d. Preedy v, Holtom, 505 — d, Rochester (Bishop) v. Bridges, 670 — d. Rogers v. Rogers, 134 — d. Shallcross v. Palmer, 492 — d. Strode v. Seatoh, 766 — d. Tatum v. Catomore, 492 — d. Welsh V. Langfield, 205 — d. Williams v. Evans, 365 — d. Worcester (Trustees) v. Row- lands, 637 — 1). Filliter, 856 — V. Huddart, 766 — V. Wellsman, 766 — ». Wright, 773 Dolling V. White, 593 Doman v. Dibden, 649 Donald v. Suckling, 122, 815, 817 Donei). Walley, 312 Donellau v. Read, 398 Donnell v. Columbian Insurance Co., 621 Doogood V. Rose, 161 Doorman v. Jenkins, 812, 846 Dormay v. Borradaile, 882 Douglas, JJe, 249, 909 — V. Corbett, 743 — 17. Earl Dysart, 16 — V. Reg., 909 — V. "Watson, 377, 683 Donlson v. Matthews, 46 Dowell V. General Steam Navigation Co., 688, 689 — V. Shepherd, 669, 689 Downes v. Back, 633 — V. Garbett, 147 Downing B. Capel, 116 Downman v. Williams, 544 Downton, Sx parte Overseers of, 229 Doyle V. O'Doherty, 765 Dracaohi v. Anglo-Egyptian Navigation Co., 499 Drake v, Beckham, 564, 573 — V. Mitchell, 279 Draysou v. Andrews, 207 Drayton v. Dale, 574 Dresser v. Bosanquet, 11 — V. Gabriel, 177 — V. Norwood, 640 Driver v. Burton, 312, 322, 446, 658 . Drouet v. Taylor, 570 Drury v. Maoaulay, 477 Dublin and Wicklow R. C. v. Black, 586 Du Bost V. Beresford, 745 Duckworth v. Ewart, 643 ^-' V. Johnson, 656, 716 Dnddenii. Clutton Union, 795, 797 Dudley Banking Co. v. Spittle, 103 Dugdale v. Reg., 879 Duke V. Andrews, 305 — V. Ashby, 430 Dumergue ». Rumsey, 202 Duncan v. Findlater, 697 — V. Richmond, 227 — V. Scott, 497 — V. Thwaites, 755 — ■». Tindall, 410, 418 — V. Topham, 305, 622 Duncuft V. Albrecht, 410 Dunford v. Trattles, 692 Dunlop V. Higgins, 304, 305, 633 — V. Lambert, 406 Dunn, Be, 248 — V. Loflns, 190 — ii. Sayles, 307 Dunston v. Faterson, 430 Durrell v. Evans, 421, 422 Dutton V. Powles, 672 Duvergier v. Fellowes, 286 Dyer v. Best, 186 Dyke v. Sweeting, 298 Dynep v. Leach, 708, 709 Dyson v. Collick, 777 Eaden v. Titchmarch, 136 Eadon v. Roberts, 163 Eager v. Grimwood, 79, 848 Eagle V. Charing Cross R. C, 99 Eames v. Smith, 199 Earle v. Hopwood, 365 — V. Maugham, 313 — «. Oliver, 330 Eason v. Henderson, 124 East Anglian R. , C. v. Eastern Counties R. C. 569 — 11. Ljthgoe, 205, 217 Eastern Counties R. C. v. Broom, 143 694, 702 — ■«. Dorling, 190 TABLE OF CASES. Eastern Counties K. C. v. MaiTiage, 4 — ■». Philipson, 276 Eastern Union R. C. v. Cochrane, 440 East India Co. v. Paul, 187 East London Waterworks Co. o. Bailey, 566 Eastmead v. Witt, 750 Easton v. Carter, 612 Eastwood v. Bain, 94, 339, 676, 681 — V. Keuyon, 332 Eaton V. Bell, 542 — «. Swansea Waterworks, 791, 792 Ecclesiastical Commission v. Merrall, 566 Eccleston v. Clipsbam, 131, 137 Eddowes v. Hopkins, 648 Eden v. Blake, 378, 423 Edge V. Strafford, 393 Edger v. Knapp, 206, 562 Edis V. Bury, 478 Edmonds v. Challis, 853 Edmondson v. Nuttall, 852 — V. Stevenson, 749 Edmunds v. Bushell, 533 — V. Greenwood, 193 — V. Groves, 491 Edsall V. KusseU, 760 Edwards v. Baugh, 319 — V. Bowen, 237 — V. Grace, 135, 614 — V. Great Western R. C. 648 — V. Havill, 535 — «. Hodges, 198 — V. Lowndes, 129 — K. Reg., 204 — •», Towells, 600 — u. Williams, 628 Egerton v. Brownlow (Earl), 6, 9, 363 — I/. Mathews, 422 Eggington, Re, 249 — V. Lichfield (Mayor of), 702, 731 Eichholz V. Bannister, 818 Eliot V. Allen, 735 EHen v. Topp, 275 Elliot V. Davis, 557 — r.YouGlehn, 167 Elliott V. Clayton, 574 — V. Kemp, 616 — V. North Eastern R. C, 85, 785 . — i>. Royal Exchange Ass. Co., 45 — V. South Devon R. C, 205 — V. Thomas, 417 EUis V. Hopper, 267 — V, London and South Western R. C, 688 — V. Reg, 262 — V. The Sheffield Gas Consumers' Co., 668, 687, 699 Ellis V. Watt, 234 Ellison V. CoUingridge, 478 — V. Ellison, 294 Elliston V. Robinson, 149 Ellwellt). Prbprietors of the Birmingham Canal Navigation, 663 Elmore v. Kingscote, 421 Elsam V. Denny, 460, 467 Elsee V. Gatward, 813 Elston V. Rose, 67 Eltham v. Eingsmao, 364 Elves V. Crofts, 369 Elwoodv. Bullock, 15 Ely (Dean and Chapter) v. Cash, 182 Emblen v. Myers, 856 Emblin v. Dartnell, 208, 480 Embrey v. Owen, 92, 94, 794, 795 Emery v, Barnett, 69 — V. Webster, 198 Emmens v. Elderton, 113, 164, 306, 328, 330, 638 Emmerson v. Heelis, 423 Emmerton v. Mathews, 351, 718, 817 Emmet v. Dewhurst, 392 Emmett v. Norton, 698, 600, 601, 602 — •. Graham, 777 — V. Jones, 730 Ewbank v. Nutting, 861 .Ec^aWe Andrews, 249 — Anon. (4 Ad. & E.) 244, 939 TABLE OF CASES. xli Hx parte Baxrimet, 867 — Bayley, 227 — Besset, 246 — Bodenham, 226 — Bradbury, 248 — Brown, 248 — Buckley, 656 — Butler, 595 — Chapman, 243, 944 — ChUd, 248 — Clifton, 227 — Critchley, 364 — Death, 234 — Denison, 232 — Downton, Overseers of, 229 — Fentiman, 243 — Fernandez, 33 — Fisher, 226 — Fraoks, 592 — Hamper, 554 — Marlborough (Duke), 243, 244, 944 — Mawby, 230 — Medwin, 233 — M'Fee, 234 — Nash, 229 — Newton, 1000 — PhiUips, 237 — Prankerd-, 227 — Ramshay, 237, 909 — Eayner, 234 — Sandilands, 246 — Smyth, 233 — Story, 147, 233 — Swan, 531, 844 — Tindal, 138 — Tucker,. 232, 234 — Van Sandau, 730 Exeter (Bishop of), v. Marshall, 118 Eyre v. Waller, 464 Byston v. Stadd, 523 Eytou V. Littledale, 180 Fagg V. Nudd, 166 Fairburn v. Eastwood, 306 Fairolough v. Pavia, 464 Fairlie v, Denton, 135 Fajrman v. Ives, 755 Falk V. Fletcher, 409 Fallowes v. Taylor, 293, 297 Falmouth (Lord) v. George, 11, 15 — — V. Thomas, 393 Fannin v. Anderson, 184 Fanshawe v. Peet, 454 Farebrother v. Simmons, 424 Farina v. Home, 414 Farley v. Briant, 136, 298 Farley w. Danks, 740, 744, 745 Farnwoith v. Hyde, 193 Farquhar v. Morris, 649 Farr v. Ward, 648 Farrar v. Deflinne, 561 Farrant v. Barnes, 677, 833 — V. Thompson, 839 Farthing v. Castles, 192 Faulkner v. Lowe, 551 FavieU v. Eastern Counties R. C, 534 — ■». Gaskoin, 512 Fawcett v, Fowlis, 733 — V. York and N. Midland R. C. 665 Fay V. Prentice, 93, 786 Fayle v. Bird, 457 Fazakerly v. M'Knight, 174, 493 Fearn v. Cochrane, 165 Fearon v. Norvall, 241 Feather v. Reg., 251 Featherston v. Hutchinson, 357 Fell V. Goslin, 136 — V. Knight, 783 Feltham v. England, 709 Felthouse v. Bindley, 140, 304, 802 Fenn v. Bittleston, 140, 840, 952 — V. Harrison, 486, 540 Fentiman, Ex parte, 243 Fenton v. City of Dublin Steam Packet Co. (The), 692 — u. Livingston, 22 — V, Person, 610 Fentum v. Focock, 205 Feret v. Hill, 286, 372 Ferguson v. Cristall, 839 — V. Kinnoul (Earl), 106, 670 — V. Mahon, 151 Fegusson v. Fyffe, 648 — V. Norman, 358, 361 Fermor's case, 267 Fernandez, Hx parte, 33 Ferrand v. Bischoffsheim, 540 — V. Milligan, 205 Ferrier v. Howden, 147 Feversham (Lord) v. Emerson, 266 Fewings v. Tisdal, 638 Fewina v. Lethbridge, 202 Field V. Adames, 223 — V. Allen, 133 — 0. Lelean, 513 Fielder v. Marshall, 442, 478 Figgiu V. Langford, 239 Filmer v. Delber, 534 Financial Corp. v. China, &o. Co. 240 Finch V. Blount, 852 — V. Miller, 178 Findon v. Parker, 365 Finney v. Forward, 193 xlii TABLE OF CASES. Finucane v. Small, 824 Fish V. Kelly, 326 — V. Kempton, 540 Fislier, ExpaHe, 226 — V. Bridges, 289, 291, 297, 332, 361, 373 — V. Bristow, 739 — V. Clement, 759 — V. Hutchinson, 385 — V. Leslie, 477 — V. Marsh, 322 — V. Mowbray, 583 — V. ProTfae, 658 Fishmongers Co. (The) v. Dimsdale, 378 — — t}. Robertson, 566 Fitch V. Jones, 491 Fitzgerald ■». Boehm, 615 — V. Brassier, 309, 387 — V. Fitzgerald, 593 Fitzjohn v. Maokinder, 78, 95, 741, 745, 862 Fitzmaurice v. Bayley, 382 Fivaz V. Nicholla, 360, 364 Fleet V. Perrina, 134 Fleming v. Dnnlop, 147 Flemyng v. Hector, 555 Fletcher v. Great Western E. C, 85 — V. Peck, 252, 253 — V. Tayleur, 631 Flight V. Keed, 331, 332 — V. Thomas, 720, 790, 792 Flindt V. Waters, 610 Flint V. Pike, 755 Flookton V. Hall, 177 Florence v. Drayson, 648 — V. Jenings, 648 Flory V. Denny, 434, 817 Flower v. Adam, 715, 862 — V. Allan, 153 Floyd V. Barker, 104, 265 Flureaus). Thornhill, 639, 640 Foley V. Addenbrooke, 130, 131 Follett V. Moore, 443, 476 Foquet v. Moor, 393 Forbes v, Cochrane, 9, 21 — V. Marshall, 478 — V. Smith, 157, 184 Ford V. Beech, 114 — V. Tiley, 112 Fordham v. Akers, 68 — V. London Brighton, &c. R C, 656 Fores v. Johnes, 372 Forman v. Wright, 489, 491 Porsdike v. Stone, 206 Forshaw v. Lewis, 192 Forster v. Lawson, 140 — V. Mackreth, 557 Forster v. Eowl^nd, 421 — V. Taylor, 136, 359 Forsyth v. Bristowe, 168, 183 Forth V. Simpson, 135, 821 — V. Stanton, 385, 387 Foster v. AUanson, 552 — V. Bates, 612, 784, 808 — V. Orabb, 123 — V. Charles, 340 — V. Dawber, 185, 430, 431, 489 — V. Green, 217, 465 — V. Jolly, 473 — V. Mentor Life Assurance Co., 292, 509, 547, 843 — V. Oxford, &o. E. C, 368 — 41. Pryme, 163 — V. Westpn, 649 Fotherly v. Metropolitan E. C, 129 Fonlger ». Newcpmbe, 760 Fountain v. Boodle, 749 Fowkea v. Manchester and London Life Ass. Co., 347 Fowler v. Down,. 574 — V. Padget, 879 — V. Biokerby, 267 Fowles V. Great Western R. C, 833 Fox V. Clifton, 206 — ». Frith, 551 — V. Gaunt, 724 — ». Harding, 646 — V. Nott, 499 Foxhall V. Barnett, 735, 861 Foy V. London Brighton & South Coast E. C, 656 : Fragano v. Long, 406 Francis v. Hawkesley, 186 — V. Wilson, 649, Franklin v. Neate, 140, 817 — V. South Eastern E. C, 716 Franks v. Boiler, 545 — Ex parte, 592 Fray v. Blackburn, 104 — V. Fray, 758 — V. Yowles, 88, 846, 854 Frayes v. Worms, 268 Frazer v. Hill, 743 — V. Jordan, 429 Free v. Burgoyne, 233 Free Fishers of Whitstable v. Foreman, 20 Freegard v. Barnes, 722 Freenian v. Birch, 406 — -11. Cooke, 531, 560, 843, 845 — V. Eosher, 698, 705 Freemantle v. London & South Wes- tern E. C, 656, 690 Freestone v. Butcher, 598, 599 Fremlin v. Hamilton, 320 French v. French, 382 — ". Styring, 551 TABLE OF CASES. xliii Freud v. Dennett, 568 Frewen v. Philipps, 783 Friend v. Harrison, 297 Frith V. Wollaston, 121 Fromant v. Ashley, 150 Fremont v. Coupland, 552 Frost V. Beavan, 606 — V. Chester (the Mayor of), 228, 235 — V. Oliver, 526, 535 Fry V. HUl, 482 Fryer v. Gathercole, 756 — V. Gray, 275 — V. Kinnersley, 751 FuU V. Hutchins, 234 Fuller, In re, 157 — V. Maokay, 67, 72 Fumivall r. Urove, 221 Fnssell v. Gordon, 169, 181 Fyson i\ Chambers, 574, 612 G. Gabriel v. Dresser, 182, 300 Gadsden v. Barrow, 239 Gahan o. Lafitte, 107 Gainsford v. Carroll, 631 Gale V. Luttrell, 180 — V. Willianiaon, 295 Gales V. Holland (Lord), 175 Galizard v. Rigault, 233 Gallagar v. Piper, 713 Galliard, app., Lax.ton, resp., 729, 930- Galloway v. Bird, 127 Gallwey v. Marshall, 761 Gralsworthy v. Strutt, 629 Gambart v. Sumner, 654 Gandy v. Jobber, 700 Garden v. Bruce, 184, 186 Gardner v. Grout, 400, 412 — V. Slade, 749 — V. Walsh, 493 Gamett v. Ferrand, 105, 732 Gamons v. Knight, 272 Garrard v. Guibilei, 198 — V. Tuck, 210 Garrett v. Handley, 558 Garrett's case, 970 Garton v. Bristol and Exeter K. C, b25, 831 — V. Great Western E. C, 116 Garwood v. Ede, 570 Gas Light and Coke Co. v. Turner, 286, 290, 355, 362 Gaskill V. Skene, 177, 431 Gater v. Wood, 198 Gaterai). Madeley, 133, 594 Gathercole r. Miali, 754 Gauntlets;. King, 143 Gauteret v. Egerton, 658 Gaved t. Martyr, 791, 795 Gay V. Lander, 478 Gayford v. NichoUs, 658, 701 Gajlard v. Morris, 686 Geary v. Physio, 442 Gee V. Lancashire and Yorkshire R. C. , 205, 643 Geere v. Mare, 291, 361 Gelen r. Hall, 106, 735 Gell V. Burgess, 626 General Steam Nav. Co. o. British &c. Nav. Co., 692 — — u. Gillou, 47 — — V. Mann, 663 — — V. Morrison, 663 George v. Chambers, 127 — V. Clagett, 540 Qeralopulo v. Wieler, 489 Gerhard/y. Bates, 316, 323, 324, 311, 347, 600, 674, 678 Gerrard v. Lewis, 277 Gether v. Capper, 4, 519 Gibb V. Mather, 457 Gibbon v. Budd, 326 - V. Gibbon, 46, 67 — V. Pepper, 683, 690 Gibbons v. Alison, 740 — V. Snape, 545 — V. Vouillon, 113 Qibbsi;. Flight, 15 — V. Frembnt, 453, 47,1, 473, 648 — V. Grey, 536 — V. Merrill, 683 — V. Ralph, 201 Gibson w. Caruthers, 306 — V. Crick, 19, 611 — V. Holland, 421 — V. Lupton, 136 — V. Muskett, 207 — V. Small, 511, 512, 664 — V. Varley, 150 _— V. Winter, 6'47 Gidley v. Palmerston (Lord), 542 Gilbart v. Dale, 837 Gilbert v. Schwenk, 849 — V. Sykes, 365 Gilbertsou v. Richardson, 97, 656, 687 Gilding v. Eyre, 740 Giles V. Spencer, 377 — V. Taff Vale R. C, 126, 533, 695, 806, 834 Gillard v. Brittan, 855 Gillett V. Hill, 405 — V. Offor, 539 Gill's case, 972 xliv TABLE OF CASES. Gilpin V. Fowler, 750, 763 Girardy v. Richardson, 372 Girand v. Kichmond, 399 Gittins V. Symes, 129 Gladwell v, Steggall, 674 Glasgow (Barl) v. Hurlet and Campsie Alum Co., 200 Glenlster v. Thynne (Lady), 595 Glover «. Dixon, 172, 189 — V. London and N. -Western K. C. , 126, 805 Glynn v. Thomas, 95, 610 Goddard's case, 271 Goddard v. Hodges, 651 Godefroy v. Balton, 846 — V. Jay, 89, 846 Godts V. Rose, 402, 405, 514 Godwin v. Culley, 185 Goff V. Great Northern R. C, 143, 533, 694 Goldshede ». Swan, 334, 509 Goldthorpe v. Hardmau, 687 Qompertz v. Bartlett, 486, 818 Good V. Chessman, 432 QoodaU V. Lowndes, 909 — V. Polhill, 489 Goodohild v. Leadbam, 147 Gooie V. Harrison, 683, 591 — V. Job, 184, 186 — V. Langley, 408 Goodered v. Belcher, 153 Goodman v. Boycott, 122 — V. Ohaae, 387 — V. Griffiths, 421 — V. Harvey, 466 — V. Kennell, 699 — V. Poconk, 638 Goodwin V. Cremer, 89, 431, 488 Gordon v. Rolt, 126, 695 _ V. Harper, 802, 839 — V. Whitehouse, 266 Gore V. Gibson, 497, 608 Gorgier v. Morris, 317 Gorham v. Exeter (Bishop), 9 Gorton v. Gregory, 277 Gosbell V. Archer, 423, 640 Gorringe v. Terrewest, 163 Gorrissen v. Perrin, 511 Gosden v. Elphiok, 117, 727 Goss V. Nugent (Lord), 394, 427, 428 Gott V. Gandy, 671, 701 Gough V. FindoB, 460 Gould V. Gapper, 233 — V. Oliver, 208 Govier v. Hancock, 602 Grafton v. Eastern Counties R. C, 111 Graham v. Frctwell, 424 — V. Furber 612 — V. Gibson, 303 Grahams. Glover, 248 — V. Hope, 560 — ■». Musson, 424 — ». Peat, 774 Granger v, George, 187 Grant v. Baughan, 463 — V. Brown, 114 — V. Campbell, 385 — V. Ellis, 183 — V. Maddox, 609, 516 — V. Moser, 723 — V. Norway, 458 — V. Royal Exchange Assurance Co., 180 Gratitudiue (The), 635 Graves v. Ashford, 550 — V. Key, 430 -^ V. Legg, 325, 611 Grayi). Jeffries, 849 — V. Johnstone, 87 — V. PuHen, 658, 699 — V. Reg., 993 Greathead v. Bromley, 266 — V. Morley, 777 Great Northern R. C. v. Behrens, 826, 828 — — V. Harrison, 668, 689, 838 — — V. Hawcroft, 838 — — V. Morville, 832 — — V. Mossop, 207 — — It. Shepherd, 835 Greatrex v. Hayward, 796 Great Western R. C. v. Bennett, 785 — — V. Crouch, 805, 837 — — V. Goodman, 836 ■ — • — V. Redmayne, 647 — — V. Rimmel, 824, 828 Great Western R. C. of Canada v. Braid, 656, 656, 659, 690, 824 Green ». Bartram, 723 — V. BickneU, 149 ■ — V. Button, 95 — V. Chapman, 754 — V. Cresswell, 388 — V. Elgie, 731 — V. Greenbank, 591 — V. Kopke, 544 — V. London General Omnibus Co., 695 — V. Saddington, 394 — V. Wood, 5 Greenhow v. Parker, 164 Greenland v. Chaplin, 689 Greenough v. McClelland, 378 Gregg V. Wells, 842 Gregory v. Brunswick (Duke), 907 — V. Cotterell, 736 TABLE OF CASES, xlv Gregory v. Hill, 687 — V. Piper, 694, 698 — 11. Reg., 940, 1000 — V. Slowman, 856 — V. West Midland E. C, 831 Grell V. Levy, 365 Grew V. Hill, 172 Grey v. Gibba, 536 Griffin v. Coleman, 728 — V. Gray, 152 Griffinhoofe v. Daubuz, 320 Griffith V. Harries, 896 — V. Middleton, 611 — V. Selby, 58 — V. Young, 384 Griffiths V. Dunnett, 686 — ■». Gidlow, 689, 708, 709 — V. Lewis, 115, 758, 761 — V. Owen, 113, 177, 495, 806 — V. Kigby, 608 — V. Teetgen, 849 Grimsley v. Parker, 431 Grindell v. Godmond, 597 Grinham v. Willey, 727 Grinnell v. Wells, 79, 8*8 Grissell v. Bristowe, 19, 514 — ■». Robinson, 613 Grizewood v. Blane, 167 Groenrelt'a (Dr.) case, 717 Grote V. Chester and Holyhead, R. C, 687 Groves v. Bnck, 410 — V. London and Brighton R. C, 716 Gudgen v. Besset, 272 Guest ». Warren, 266, 741 Guidon V. Robson, 552 Guilford v. Sims, 227 GuiUe V. Swan, 97 Gull V. Lindsay, 389 Gumm V. Tyrie, 511 Gnnter v. Astor, 851 Gnppy V. Brittlebank, 725 Gumey v. Behrend, 499 — V. Evans, 454, 554 — V. Womersley, 206, 207, 486 Guy V. Livesey, 141 Gwinnell v. Herbert, 476, 478 Gwynu v. Godby, 649 H. Hacking v. Lee, In re, 217 Hackwood v. Lyall, 535 Haddan v. Lett, 682, 862 Haddon v. Ayres, 131| Haddrick i). Heslop, 743 Hadfield's case, 882 Hadley v. Baxendale, 205, 643, 644, 646, 647 — V. Perks, 723, 726 — V. Taylor, 668 Haigh V. Brooks, 317, 319 — V, Jones, 364 Hailes v. Marks, 725, 7431 Haines v. Roberts, 85, 785 Haire v. Wilson, 747 Hakewill, In re, 248 Haldauev. Johnson, 300 Hale V. Rawson, 632 Hales V. London and North Western K. C, 646, 825 — ■». Petit, 878 Halhead v. Toung, 378 Halifax v. Lyle, 458 Hall V. Ashhurst, 547 — V. Bainbridge, 273, 557 — V. Booth, 725 — 1). Bristol (the Mayor of), 77 — V. Conder, 319, 361, 634,636, 817 — V. Dyson, 318 — V. Pearnley, 690 — V. Peatherstone, 491 — V. Fuller, 466 — V. Harding, 225 — V. Hollander, 849, 850 — v. Janson, 511, 614 — V. Lund, 782 — V. Pickard, 839 — V. Potter, 364 — V. Peyser, 206 — V. Scotson, 149, 160, 192 — V. Swansea (Mayor, &c.), 564 — V. Warren, 607 — i: Wright, 613, 622, 634 Hallack v. Cambridge University, 232 Hallen v. Runder, 397 Hallett V. Dowdall, 669 — V. Wigram, 626 Halliday «. Holgate, 122, 815, 817 Halstead v. Skelton, 456, 457 Hamber v. Hall, 135 Hambly i). Trott, 137 Hambro' v. Hull and London Fire In- surance Co., 569 Hamilton v. Anderson, 106 — V. Grainger, 372 — V. Reg., 970 — V. Spottiswoode, 443, 477 — 0. Terry, 305, 385 Hamlin v. Great Northern R. Co., 852 Hammack v. White, 715 Hammersley v. Biel (Baron de), 383 392 Hammersmith E. C. v. Brand, 99 Hammond v. Howell, 105 Hammond's case, 249 Hammon's case, 945 xlvi TABLE OF CASES. Hamper, lb; parte, 554 Hancke v. Hooper, 721 Hancock v. Caffyn, 571 — V. Hodgson, 547 — V. Noyes, 167 Handcook v. Baker, 724, 725 Hankinson v. Bilby, 759 Hannam v. Mockett, 947 Hansard v. Bobinson, 494 Hanslip v. Padwick, 639, 646 Hanson v. Armitage, 416 — V. Meyer, 404 Harbidge v. Warwick, 788 Hardcastle v. South. Yorkshire Railway and Eiver Dean Co., 659 Harden v. Clifton, 492 Hardie v. Grant, 601, 602 Hardmau v. Booth, 255 Hard wick v. Moss, 116 Hardy v. Tesey, 462 Hare v. Henty, 11, 464 Hargreaves v. Parsons, 389, 428 Harman v. Johnson, 200, £57 — V. Reeve, 410 Harmer v. Cornelius, 351 — V. Steele, 460, 467 Harnorv.ffroTes, 379,404,409,487,512 Harolds. Smith, 621 Hai-per v. Chariesworth, 777 — V. Williams, 648 Harries w. Thomas, 201 Harrington (Earl), JJe, 241 — V. Eamsay, 70, 234 Harris v. Butler, 849 — V. Carter, 430 — V. Dignum, 730 — V. Dreesman, 217 — V. Goodwyn, 300 — V. Holler, 148 — V. Kemble, 354 — V. Montgomery, 169 — V. Morris, 601 — V. Osbourn, 534 — V. Phillips, 168 — V. Eickett, 372 — V. Kunnels, 355 — V. Thompson, 748, 751, 754 — V. Wall, 589 Harrison v. Blackburn, 777 — V. Bush, 751 — V. Cage, 392 — V. Cotgreave, 165, 590 — v. Fane, 206, 588 — V. Great Northern R. C, 206, 786 — V. Harrison, 633 — V. Hyde, 505 — ». Jackson, 434, 547, 557 — V. London, Brighton, &c. R. C, 829, 831 Harrison v. Parker, 839 — V. Roscoe, 468 Harrop i). Hirst, 91, 92 Harrup, app., Bailey, resp., 843 — V. Fisher, 462 Hart V. Alexander, 560 — i>. Baxendale, 828 — 1). Bush, 416 — II. Crowley, 698 — ». Miles, 317, 415 — v. Pratfer, 587 — t. Stephens, 133, 594 Hartland v. Jukes, 184 Hartleys. Cummings, 130, 306, 368 — V. Moxham, 126 — V. Ponsonby, 317 — V. Bice, 364 — V. ShemweU, 240 — V. Wharton, 589 Hartwell v. Ryde Commissioners, 101 Harrey v. Brydges, 221, 222 — V. Grabham, 428 — u. Johnston, 305, 306, 325 — V. Kay, 551 — a. Pooock, 854 — J!. Towers, 491 Haseler v. Le Moyne, 705 Hasleham v. Young, 657 Haslock V. Pergusson, 391 Hastie v. Couturier, 389 Hastings v. Whitley, 369 Hatsall V. Griffiths, 131 Havilland v. Bowerbank, 648 Hawe V. Planner, 687 Hawkins v. Alder, 206 — V. Harwood, 226, 846 Hawkshaww. Parkins, 558 Hawtayne v. Bourne, 535, 556 Hawthorn v. Hammond, 783 Hayoroft v. Creasy, 857 Hayes v. Warren, 169, 326 Haylingj). Okey, 190, 683, 776 Haylock v. Sparke, 115, 735 Hayton v. Wolfe, 616, 804 Heald v. Carey, 126, 738 — V. Kenworthy, 538, 539 Healey v. Story, 556 Heane v. Rogers, 844 Heame v. London and South Western R. C, 828 — V. Stowell, 745, 759 Heath v. Chilton, 613, 615 — V, Sansom, 561 Hedger v. Stevenson, 469 Hedley v. Bainbridge, 557 Heilbut V. Nevill, 135 Hellawell v. Eastwood, 396 Helps V. Clayton, 321, 587 Helsham v. Blackwood, 746, 760, 918 Hemans v. Picciotto, 276 TABLE OF CASES. xlvii Heming v. Power, 760 Hemmings v. Gasson, 748, 759 Hemstead v. Phcenix Gas Co., 141 Hendereon v. Barne-well, 425 — i). Broomhead, 78, 756 — V. Henderson, 121 ■ — V. Squire, 646 Henley v. Lyme Kegis (Mayor of), 100 — V. Soper, 121 Hensloe's case, 611 Heraudi;. Leaf, 556, 559 Herbert v. Sayer, 574 HercMeld v. Clarke, 192 Hermann v. Seneschal, 116 — V. Smith, 157 Hemod v. Wilkin, 166 Herring v. Hndson, 729 — V. Metropolitan Board of Works, 99 Heseltine '«. Siggers, 410, 518 Hesketh v. Fleming, 157 Heslop V. Baker, 703 — V. Chapman, 743 Hewitt V. Isham, 783 — V. Macqnire, 782 Hewston v. Phillips, 67 Hey V. Moorhouse, 776 — V. Wyche, 623 Heydon's case, S Heylyn v. Adamson, 448, 478 Heywood v. CoUinge, 739 — ■». Watson, 482 Heynrorth v. Hutchinson, 351 — V. Knight, 426 Hibbs V. Boss, 535 Hicks ». Gregory, 130, 325 Higginbottom v. Burge, 130 Higgens'a case, 263, 279 Higgins V. Hopkins, 530, 541 — V. Livingston, 542 — V. Pitt, 287, 290 — V. Senior, 506, 546, 547 Hilbery v. Hatton, 804, 805 Hilcoati'. Canterbury (Archbishop), 663 Hill V. Balls, 76, 337, 661, 872 — v. Foley, 462 — V. Fox, 289 — V. Gray, 373 — V. Etching, 322 — V. Mount, 111 — V. Smith, 630 — V. The Proprietors of the Man- chester Waterworks, 283 Billiard, He, 227 Hills V. Laming, 282 — V. Mesnard, 62, 488 — V. Mitson, 365 Hilton V. Eckersley, 371 — V. Granville (Earl), 15 — V. Whitehead 82 Hinde v. Gray, 370 — V. Whitehouse, 400, 401, 423, 425 Hindley ». Westmeath (Marquis), 364, 602 Hinton v. Bibbin, 828 — V. Heather, 743 — V. Sparkes, 629 Hipkina v. Birmingham and Stafford- shire Gas Light Co., 80, 655 Hirschfield v. Smith, 473, 493 Hitchcock V. Coker, 368, 369, 370 — V. Humfrey, 456 Hitchin v. Groom, 614 Hitohins v, HoUingwortli, 164 Hitchman v. Walton, 861 Hix V. Gardiner, 14 Hoad V. Grace, 334, 386 Hoadly v. M'Laine, 410, 421 Hoare v. Cazenove, 459 — *. Silverlock, 206, 745, 755 Hobbit V. The London and Korth- Westem K C, 716 Hobbs V. Bransoomb, 725 — V. Henning, 266 — V. Young, 148 Hobhouse's case, 248 Hobson V. Middleton, 164 — V. Thellusou, 90, 861 Hochster v. De la Tour, 112, 113, 304. 634 Hodding v. Stutchfield, 149 Hodges r. Ancrum, 197 — V. Hodges, 601 — V. Lichfield (Earl), 639 Hodgkinson v. Ennor, 80, 795, 797 — V. Fernie, 268 — V. Fletcher, 600 Hodgman v. West Midland E, C 830 Hodgson V. Johnson, 894 — V. Moulsou, 83 — V. Scarlett, 755 — V. Sidney, 573 — V. Wood, 624 Hodsman v. Grissel, 590 Hodsoll V. Baxter, 149 — 11. Stallebrass, 850 Hoey V. Felton, 96, 689, 862 Hogan V. Page, 649 Hogg V. Skene, 491 — !«. Ward, 728 Holborow V. Jones, 72 Holcroft V. Hoggins, 536, 561 Holden v. Ballantyne, 198 — d. The Liverpool Gas Co., 688, 715 Holder v. Cope, 600 — V. Soulby, 819 Holding V. Elliott, 376, 646 xlviii TABLE OF CASES. Hole V. Sittingboume and Sheerness E. C, 668, 699 Holford V. Bailey, 777 — V. George, 20 V. Hankinson, 791 Holland v. Eussell, 347, 539 HoUis V. MarahaU, 102 — 1). Palmer, 185 HoUoway t). Abell, 849 — V. Reg., 878, 910, 999 Holman v. Johnson, 359, 363 Holmes v. Bagge, 686, 778 — V. Bell, 282 — V. Blogg, 686 — V. Clarke, 713 — V, Eiggins, 551 — V. Hoskins, 413, 414 — V. Jaques, 477 V. Kerrison, 480 — V. Kidd, 467 — V. Maokrell, 185 — V. Mitchell, 387 — V. Newlands, 775 — V. North Eastern K. C, 669 — V. Onion, 693 — V. Wilson, 139, 143 — 1). Wood, 594 Holroyd v. Whitehead, 467 Holt V. Brien, 697 — V. Ely, 539 — V. Frost, 238 — V. Ward, 306, 582 Homer v. Ashford, 370 — V. Taunton, 760 Homersham v. Wolverhampton Water- works Co., 668 Honess v. Stubbs, 746 Honeyman v. Lewis, 206 Honeywood v. Foster, 545 Hooper v. Clarke, 277 — V. Lane, 648 — V. Shepherd, 121 — V. Stephens, 62 — V. Treffry, 322 — V. Williams, 477 Hope «. Haley, 435 Hopkins, Ee, 267 — V. Crowe, 727 — V. Grazebrook, 640 — V. Hitchcock, 968 — V. Logan, 133, 327, 328 — v. Presoott, 358 — V. Swansea (Mayor of), 322 — 11. Tanqueray, 346, 352, 353 — V, Ware, 464 Hopkinson v. Lee, 131 Hopwood V. Thorn, 751, 761 Horler i>. Carpenter, 42, 386 Horn V. Thornborrow, 116 Home V, Redfeam, 477 Home V. WingSeld, 428 Horner v. Fliatoff, 628 — V. Graves, 368, 370 Horsfall v. Hey, 396 — V. Thomas, 336 Horsley v. Bell, 642 — V. Kush, 557 Horton V. Devon (Earl), 239 ■ — V. Sayer, 45, 46 — D. Westminster Improvement Commissioners, 282 Hosking v. Phillips, 781, 854 Hotson V. Browne, 376 Houlden v. Smith, 106 Houlder v. Soulby, 811, 822 Honliston v. Smyth, 601 Hounsell v. Smyth, 658, 671 Honsego v. Cowne, 476 Hounsfield v. Drury, 739 How V. Greek, 307 Howard v. Barnard, 856 — V. Brownhill, 130 — V. Crowther, 571, 573, 849 — V. Digby, 697, 600, 607 — V. Qosset, 730 — V. Hudson, 843, 844 — V. Oakes, 594, 597 — V. Shepherd, 132, 498, 673, 678, 805 — V. Sheward, 532 Howarth v. Brown, 190 — V. ToUemaohe, 838 Howcutt V. Bouser, 185 Howden v. Haigh, 357 Howell V. Toung, 187 Hewlett V. Tarte, 266 Hoye V. Bush, 722 Hubbart v. Phillips, 153 Huber v. Steiuer, 46 Buckle V. Reynolds, 760 Huckman v. Femie, 197 Hudson V. Baxendale, 205, 837 — V. Bilton, 111 V. Clementson, 610 — V. M'Rae, 873 — V. Roberts, 688 Hudspeth v. Yarnold, 305 Hudston V. Midland R. C, 835 HufiFer v. Allen, 266, 740 Huggins V. Durham, 142 — V. Waydey, 117 Hughes V. Buckland, 116 — V. Hughes, 205, 206, 208 — V. Macfie, 689 — V. Reeves, 759 — V. The Great Western R. C, 833 Huguenin v. Baseley, 294 Hull V. Pickersgill, 703 Hulsei). Hulse, 489 TABLE OF CASES. xlix Humble v. Hunter, 544 — V. MitcheU, 410 Humfrey v. Dale, 426, 513, 545 — V. Qery, 182 — V. London and North-Western E. C, 190 Humphreys, Se, 867 — V. WelUng, 363 Humphries v. Brogden, 77, 82, 84 Humphrys v. Pratt, 340 Hunt V. Baker, 308 — V. Bishop, 111 — V. DeBlaquiere, 597, 601 — V. Great Northern R. C, 67 — V. Heoht, 418 — V. Hewett, 192 — V. North Staffordshire R. C, 67 Hunter v. Caldwell, 846 — V. Emmanuel, 198 — V. Gibhons, 186, 187 — V. Parker, 434, 535, 547, 558 — V. Wilson, 490 Hunting v. Sheldrake, 136, 298 Huntley v. Simpson, 739 — V. Ward, 751 Hurrell v. Ellis, 139, 682 Hnrst V. Great Western E. C, 838 — V. Hurst, 629 Hutchins V. Chambers, 225 — V. Hollingworth, 200 Hutchinson v. Gillespie, 121, 268 — V. Guion, 833, 862 — V. Read, 320 — V. The York, Newcastle, and Berwick, R. C, 708, 713, 716, 838 Hutchison v. Bowker, 251, 508 Hutt V. Morrell, 266 Button V. Crutwell, 868 — V. Ward, 494, 648 — V. Warren, 511, 512, 521 — ». Whitehouse, 157 Huzzey v. Field, 698 Hyams v. Webster, 663 Hyat V. Hare, 561 Hybart v. Parker, 439 Hyde v. Dean and Canons of Windsor, 138, 298 — V. Johnson, 185 ■ — V. Scyssor, 848 Hynde's case, 265 Hyne v. Dewdney, 477 I, Ibbotson V. Feat, 661 Ilott, V. wakes, 22, 666 Imperial Gas Co. v. London Gas Co., 186, 187, 652, 842 Imperial Gas Light and Coke Co. v. Broadbent, 718 Indermaur v. Dames, 658, 659 India, Secretary of State for, v. Sahaba, 103, 705 Ingate v. La CommisBione del Lloyd Austriaco, 157 Ingham v. Primrose, 454, 483 Inglis V. Haigh, 123, 184 Ingram v. Barnes, 257 — V. Lawson, 745, 761 Ingsv. London and S. -Western E. C, 72 ■ Inman v. Stamp, 393 In re Bahia, &c., R. C, 843 — Bailey, 248 — Belson, 248 — Bines, 248 — Clarke, 249 — Fuller, 157 — Gorham v. Exeter (Bishop of), 232 — Hacking v. Lee, 217 — HakewUl, 248 — Laycock v. Pickles, 393 — Newton, 1000 — Place, 234 — Power, 249 — Thompson, 227 — Wilkes, 242 — Williams v. Grouoott, 658, 671 Insull v. Moojen, 124 Ireland n. Thompson, 558 — (Bank of) v. Trustees of Evans's Charities, 465, 531 Irons V. Smallpiece, 293, 434 Irwin V. Brandwood, 760 — V. Dearman, 849 — v. Grey, 48, 210 Isberg V. Bowden, 180, 540 Israel v. Douglas, 117 Ivens V. Bntler, 595 IvesoD V. Moore, 719 Izett V. Mountain, 824, 825 J'Anson v. Stuart, 171 Jackson v. Burnham, 574 — V. Cocker, 600 — V. Everett, 268 — V. Galloway, 146 — V. Hopperton, 749, 750 — 1). Kidd, 164 — V. Lowe, 383 — V. Marshall, 210 — o. Pesked, 779 — V. Smithson, 688 — V. Stopherd, 652 — V. WooHey, 7, 185 TABLE OF CASES. Jacquet v. Bower, 149 James v. Bourne, 166, 761 — 0. Oamptiell, 858 — V. Cocliane, 211 — V. Holdich, 485 — V. Isaacs, 310 — V. Morgan, 631 — V. Phelps, 744: — V. Salter, 182 — v. Vane (Lord), 178 — V. WUliams, 113, 177, 496 Jaques v. Ceesar, 209 Jarmain v. Hooper, 730 Jarrett v. Kennedy, 344 Jarvis v. Wilkins, 477 Jeakes v. White, 393 JefiFerys v. Boosey, 653 Jeffries v. Alexander, 272 — V. Great Western R. C, 127, 801, 809 — V. Williams, 84 Jeffs I). Day, 189 Jelliet V. Broad, 367 Jelly V. Bradley, 686 Jenings v. Florence, 740 Jenkins v. fietham, 351, 846 — V. Harvey, 13 — V. Hutchinson, 135, 544 — • V. Morris, 656 — V. Power, 539 — V. Reynolds, 382 — V. Tongue, 460 — V. Tucker, 604 Jenkyns v. Usborne, 499 Jenner v. Smith, 402, 405 Jennings v. Brown, 333 — V. Great Northern E. C, 836 — V. Roberts, 470 — V. Eundall, 691 — V. Throgmorton, 372 Jessop V. Lutwyche, 361 Jewell V. PaiT, 467, 488 Joel V. Morison, 698 Johns V. Simons, 635 Johnson v. Birley, 148 — -0. Dodgson, 383, 421 — V. Hudson, 358 — V. Lucas, 133, 596 — V. Midland fi. C, 825 — V. Pie, 590, 591 — V. Royal MaU Steam Packet Co., 317, 805 — V. Stear, 403, 805, 863 — V. Windle, 463, 465 Johnston v. Sumner, 596, 697, 600, 601, 741, 742 Johnstone v. Sutton, 103, 706 JoU «. Ourzon, 171 JoUy V. Rees, 598, 599 — V. Young, 609 Jonassohn v. Great Northern R. C, 111 Jones V. Barkley, 275 — V. Beaumont, 124 — v. Broadhurst, 448, 488 — V. Cannock, 111 — V. Carter, 438 — i>. Chapman, 139, 240, 776 — V. Clarke, 511 — V. Currey, 67 — V. Davies, 805 — V. Dowle, 122 — V. Festiniog R. C. , 656 — V. FUnt, 395 — V. Gooday, 852 — V. Grettou, 488 — V. Harrison, 570 — V. Hart, 702 — V. Hughes, 536 — V. Johnson, 127 — V. Jones, 223, 234 — V. Just, 351 — V. Lees, 365 — V. Maekie, 748 — I/. Orchard, 311 — V. Owen, 235, 241 — V. Powell, 720 — V. Pritchard, 63 — V. Randall, 363, 364 — V. Reade, 179 — 0. Robinson, 438 — V. Ryde, 486 — V. Sawkins, 432 — V. Tanner, 72 — V. Thompson, 240 — V. Tyler, 820 — V. Waite, 286, 364 — V. Williams, 222 — V. Wylie, 685 — V. Yates, 335 Jordan v. Norton, 421 Jorden v. Money, 392, 843 Jordin v. Crump, 656 Josling V. Irvine, 632, 643 — V. Eingsford, 503, 968 Joule V. Taylor, 117^ 626 Jourdain v. Palmer, 193 Jowett V. Spencer, 111 Joyce V. Swann, 400 Judkins v. Atherlon, 192 Judson ■«. Bowden, 111 Jung V. Phosphate of Lime Co., 545 Jungbluth V. Way, 495 Jury V. Barker, 476 Justice V. Gosling, 728 K. Kavanagh v. Gudge, 686 TABLE OF CASES, Kaye o. Brett, 632 — 1!. Button, 319, 328 — V. Waghorn, 299 Keane v. B«ynolds, 782 Kearns o. DurelJ, 489, 497 Kearsey v. Carstairs, 306 Eearslake v. Morgan, 113 Keates v. Cadogan (Earl), 373, 671 Keen v. Priest, 203, 225, 854 Keene v. Beard, 468, 464, 852 — V. Dilke, 861 Eeene v. Keene, 648 Keightley v. Watson, 131 Eeir v. Leeman, 284, 909 Kelly V. Larwood, 730 — V. Laurence, 152 — V. Partington, 748 — V. Sherlock, 856 — r. Tinling, 754 — V. Webster, 393, 396 Kelner v. Baxter, 545 Kelsall «. Marshall, 268 Kemble v. Farren, 628 Kemp V. Balls, 488 — V. Clark, 498 — V. Finden, 552 — V. Neville, 106 Kempe v. Gibbon, 183, 186 Kempaon v. Boyle, 376 Kendall v. Wilkinson, 733 Kendillon v. Maltby, 732 Kennaway v. Treleavan, 306 Kennedy v. Broun, 130; 309, 326 — V. Panama, &c. Mail Co., 350 Kennet and Avon Navigation Co. v. Witherington, 108, 665 Kenricki). Herder, 174 Kent V. Great Western E. C, 115 — V. Shuckard, 819 — V. Thomas, 536 Kentworthy v. Schofield, 423 Kepp V. Wiggett, 292 Kerkin v. Kerkin, 69, 241 Kerryon, app.. Hart, resp., 787 Kershaw v. Bailey, 751 — V. Ogden, 416 Key V. Cotesworth, 405, 499 Keyse v. PoweU, 183, 775 KidgiU V. Moor, 91, 780 Kidner v. Keith, 271 Kidstone v. Empire Ass. Co., 516 Kilham v. Collier, 317, 322, 363 Killby V, Bochussen, 449 Kimberley v. Alleyne, 152 Kimbray v. Draper, 7 Kimpson v. Boyle, 426 Kimpton v. Willey, 62, 63, 235 King V. Ace. Ass. Co., 1^ — V. Basingham, 594 — V. GiUett, 430 King V. Hoare, 137, 263, 265 — V. Hopkins, 148 — V. Jones, 134, 624 — V. Norman, 266, 624 — V. Beg., 910 — V. Sears, 308, 315 — V. Shepherd, 235 — V. Williams, 159 Kingdom v. Cox, 111 — V. Nottle, 134 Kings 1). Hilton, 137 Kingsbridge Flour Mill Co. v. Ply- month, ka. Baking Co., 568, 569 Kingsford v. Great Western R. C, 192 — V. Morry, 335 Kingston v. Preston, 275 Kingston's (Duchess of) case, 266 Kingston-upon-HuU (Poor of) v. Fetch, 304 Kinlyside v. Thornton, 125 Kinning v. Buchanan, 731 Kirby v. Banister, 136 — V. Simpson, 117, 733, 735 Kirchner v. Venus, 520 Kirk V. Bell, 568 — V. Dolby, 147 — V. Gibbs, 431 Kirkham v. Martyr, 390 Kirwan v. Kirwan, 660 Kitchen v. Bartsch, 574 Kitchenman v. Skeel, 614 Knapp V. London, Chatham, and Dover R. C, 223, 775, 783 Knight V. Barber, 410 — V. Egerton, 854 — V. Fox, 696 Knights V. Quarles, 134 Knowlden v. Keg., 988 Knox V. Bushell, 599 L. Lade v. Shepherd, 839 Lafitte V. Slatter, 460 Lafondw. Euddock,.182, 187 Lafone v. Smith, 748 Laidler v. Burlinson, 408 Laing v. Whaley, 652, 795 Laird v. Pim, 641 Lake v. Smith, 138 Lamb v. Bance, 313 — V. Palk, 698 — V. Pegg, 113 Lambert v. Bessey, 683, 684, 857 — u. Taylor, 209 Lamert v. Heath, 486 Lampet's case, 438 Lamphier v. Phipos, 721 d 2 lii TABLE OF CASES. Lampleigh v. Brathwait, 309 Lamprell v. Billericay Union, 566 Lancashire Waggon Co. v. Fitzhugh, 190 Lancaster v. Eve, 394 — V. Walsh, 324 Landens v. Sheil, 237 Lane v. Bennett, 184, 186 — V. Burghart, 387 — V. Ironmonger, 598 Lang V. Gale, 509 Langfort v. Tiler, 401 Langridge v. Levy, 676, 678, 968 Langmead v. Maple, 266 Langton i>. Higgins, 376, 402 — V. Hughes, 357 — V. Waring, 402 Lassence v. Tiemey, 392 Latham v. Eeg., 985, lOOO — V. Spedding, 69 La Touche v. La Touohe, 316 Latt V. Booth, 583 Lattimore v. Garrard, 328 Laugher v. Pointer, 691, 694, 697 Lavery v. Turley, 393 Lavey v. Eeg., 910 Law V. Parnell, 460 — V. Thompson, 168 Lawford v. Partridge, 69 Lawless v. Anglo-Egyptian Cotton Co. , 749, 761 Lawrence v. The Great Northern E. C, 786 — V. Hitch, 20 — V. Walmsley, 378 — V. WilcOck, 46 Laws V. Eand, 464 Lawson v. Bumess, 511 — V. Dumlin, 117 — V. London (the Bank of), 89, 654, 695 Lawton v. Elmore, 170 Lay V. Mottram, 274 Lajcock 1!. Pickles, In re, 393 Laythoarp v. Bryant, 306, 383, 411, 421 Lazarus v. Cowie, 467 Leach v. Money, 729 — V. Thomas, 208 Leader v. Homewood, 434 — V. Ehys, 61 Leaf V. Tuton, 168 Leakey v. Lucas, 112 Leame v. Bray, 684, 687, 698, 893 Leary v. Patrick, 7, 733 Leather Cloth Co. v. American Leather Cloth Co., 89 Lebel v. Tucker, 473 Leconteur ii. London and South Western E. C, 826 Ledwith V: Catohpole, 725 Lee V. Bayes, 103, 803, 806, 843 — v. Everest, 527 _ V. Griffin, 407, 421 — V. Hart, 858 — 1}. Jones, 338 — •(/. Nixon, 136 — V. Eisdon, 396 — V. Simpson, 867 — -Ii. Stevenson, 774, 778 — V. WUmot, 185 Leeds and Thirsk E. C. v. Fearnley, 586 Leeming v. Snaith, 511 Leete v. Hart, 117 Le Fanu v. Maloolmson, 140, 768 Legge V. Tucker, 72, 672 Legh V, Hewett, 19 Leidemau v. Schultz, 610 Leigh V. LilUe, 629 — ^. Paterson, 631 Leighton v. Wales, 367, 629 Leman v. Goulty, 233 Le Mason v. Dixon, 142, 145 Lemere v. Elliott, -893 Lennard v. Eobinson, 544 Leroux v. Brown, 47, 384 Leslie v. Pounds, 700 Lethbridge v. Mytton, 624 Leviere v. Eeg., 1002 Levy V. Baker, 608 — 1). Edwards, 728 — V. Green, '405 — V. Hale, 843, 861 — V. Langridge, 648 — V. Moylan, 106, 729 — -1). Pyne, 657 — 0. Eailton, 168 Lewis V. Bright, 358 — V. Camphell, 309 -- 0. Clifden, 635 — V. Clifton, 113, 843 — V. CoUard, 846 — V. Davison, 357 — V. Gompertz, 470 — 11. Great Western E. C, 831 — V. Levy, 755 — V. McKee, 499 — V. Marshall, 517 — V. Nicholson, 544 — V. Peachey, 639 — V. Eead, 705 — V. Eeilly, 553 — V. Eoehester (Mayor, &c. of), 569 ■ — V. Walter, 756 Leyland «. Tanored, 739 Libels (The case of), 745 Lichfield Union (Guardians of) i: Greene, 482 TABLE OF CASES. liii Licktarrow v. Mason, 498, 499 Liddlow V. WUmot, 600 Liford's case, 774 Lillev V. Elwin, 638 — V. Harvey, 234 Lilly V. Hays, 322 Lilly white v. Deverenx, 415 Limpus V. Gteneral Omnibus Co., 698 Lincoln College case, 524 Llndall v. Penfold, 265 Lindley v. Lacey, 376 Lindsay u. Leigh, 733 Lindus v. Bradwell, 454, 607, 528, 596 — V. Melrose, 556 Linford v. Fitzroy, 732 — i;. Lake, 174 Linnegar v. Hodd, 333 Litchfield v. Eeady, 766, 773, 777 Litt V. Maitindale, 322 Littlechild v. Banks, 177 Littlefield V. Shoe, 332 Liverpool Adelphi Loan Association v. Fairhnret, 591, 595, 843 Liverpool Borough Bank v. Eocles, 383, 421 — — V. Logan, 387 Liversidge v. Broadbent, 322, 437 Livingston v. Balli, 45 Lloyd V. Gnibert, 47 — V. Harrison, 90, 853 — V. Howard, 467 — V. Johnson, 372 — V. Jones, 69, 148 — V. Oliver, 165, 478 — ■». PeeU, 573 Lock V. Ashton, 730, 862 — V. Furze, 138, 639 Lockett V. Nioklin, 512 Loekhart v, Barnard, 324 Lockley v. Pye, 855 Loder v. KekuU, 635 Logan «. Hall, 637 — •». Le Mesnrier, 400, 409, 631 Lomas v. Bradshaw, 553 London, &c., Co. v. Drake, 127 London and Continental Ass. Soc. v. Kedgrave, 282 London Dock Co. v. Sinnott, 563 London and North-Western R. C. v. Glynn, 129 — — V. Dunham, 217, 831 — — V. Lindsay, 267 Loudon (Bishop of) v. M'Neil, 179 — (Corporation of) v. Att.-Gen., 32 — Gaslight Co. v. Chelsea, 275 — (Mayor of) v. Hunt, 566 — (Mayor of) v. Cox, 234 Long V. Orsi, 226, 846 Longbottom v. Longbottom, 67, 217 Londmeid v. HoUiday, 141, 596, 677, 848 Longmore v. Gt. Western E. C, 690 Lonsdale (Earl) v. Nelson, 222 Loosemore ». Eadford, 624 Lord V. Hall, 458, 461, 528, 597 — V. Midland E. C, 830 — V. Sydney (Commissioners of), 794 Loring v. Warburton, 95 Lotan V, Cross, 839 Loukes V. Holbeaeh, 611 Lovegrove o. London, Brighton, &c. E. C., 713 Lovelock V, Franklyn, 112 Lowe V. Carpenter, 792 — 0. London and North-Westem E. C, 568 — V. Peers, 364 — V. Steele, 626 Lowley v. Eossi, 61 Lowndes v. Stamford (Earl), 45 Lucas V. Beach, 552 — V. Beale, 131, 547 — V. Bristow, 611, 515 — -u. De la Cour, 558 — V. Tarleton, 94, 670 Lucy V. Levington, 134 — V. Mouflet, 404 Ludlow (Mayor of) v. Charlton, 562 Lumley v. Gye, 96, 97, 170, 322, 849, 850, 862 Lunn V. Thornton, 435 Lunt V. London and Norlh-Western E. C, 656 Lyde v. Barnard, 391 • Lygo V. Newbold, 668, 689 Lyle V. Eichards, 505 Lynch v. Knight, 96, 761 — V. Nurdin, 689 Lynn Eegis (Mayor of) v. Taylor, 13 Lyon V. Knowles, 143 — V. Eeed, 430 Lyons v. Martin, 698 Lysaught v. Bryant, 460, 468 Lythw. Ault, 318, 432, 560 Lythgoe v. Vernon, 127, 808 M. Maber v. Maber, 185 MacAndrew v. Electric Telegraph Co. , 825 MacArthnr v. Seaforth (Lord), 633 Macbeath v, Haldimand, 536, 512, ■ 706 MacCarthy v. Young, 680, 814 Macdonald v, Longbottom, 503, 505 liv TABLE OF CASES. Maodougal v. Paterson, 4 Maofarlane v. Giannao'opulo, 538 MaoQregor v. Rhodes, 468 — V. ThwAites, 745, 755, 760 Machu V. The London and South- western B,. C, 693, 829 Maekallay's case, 917, 929 Maotay v. Ford, 755 Mackenzie v. Pooley, 535 — V. Danlop, 516 Mackintosh v. Haydon, 479 Maclae v. Sutherland, ] 36, 556 Macrae 1J. Clarke, 90, 853 Maorory d. Scott, 387 Maddicku Marshall, 136, 531 Maddon v. White, 585 Maddox v. Winne, 593 Magee v. Atkinson, 546 Magnay ■;;. Burt (In error), 739, 741 Magor V. Chadwiok, 796 Mahoney v. Ashlin, 471 — V. Kekule, 539, 644 Maile v. Mann, 635 Mainprice v. Westley, 322 Mainwaring v. Brandon, 646 — V. Giles, 777 — V. Leslie, 600 — V. Newman, 551 Maiden v. Pyson, 646 Mallalieu v. Hodgson, 287, 291 Mallan v. May, 365, 369, 371, 509 — ■;;. Radloff, 351 Mallett V. Bateman, 385 Malpas V. The London and South- western R. C, 603 Malpassj). AWldJ, 148 Maltass v. Siddle, 450 Maltby v. Murrells, 147, 448 Manby v. Scott, 591, 596, 597, 602, 603 — V. Witt, 750 Manchester, &c. K. C. ■». FuUarton, 656- Manchester, Sheffield, and Lincolnshire B. C. (The) V. Wallis, 666 Manders v. Williams, 127, 140, 803 Mangan v. Atterton, 689 Manley v. Boycot, 209, 377, 460, 468 Manley v. Pield, 79, 849 — V. St. Helen's Canal and R. C, 659, 660, 715 Manning'!). Fitzgerald, 505 — V. Phelps, 182 Mansell v. Reg., 993 Manwaring v. Sands, 602 Mardall v. Thellusson, 181, 614 Mare v. Charles, 459 Marfell v. South-Wales R. C, 668 Marker v. Kenrick, 126, 778 Marlborough (Duke of), E.t parte, 243, 244, 944 Marriott v. Hampton, 266, 609 — V. Stanley, 638 Marsack v. Webber, 311 Marsden*. City Ass. Co., 95 — V. Moore, 276 — V. Wardle, 234, 235 Marsh v. Billings, 654 — V. Davies, 536 — ■». Keating, 553 — V. Loader, 889 — -B. Wood, 306 Marshall v. Bown, 291 — V. Broadhurst, 613, 614 — 1). Exeter (The Bishop of), 189 — V. Lynn, 427,' 428 — V. Nioholls, 108 — V. Poole, 648 — V. Button, 691 — V. Stewart, 709 — V. Ulleswater Steam Naviga- tion Co., 777 — V. York, Newcastle, and Ber- wick B.C., 662, &74, 836 Marshalsea (The case of), 106, 729, 730 Marston v. Allen, 460, 461 Martin v. Andrews, 173 — V. Boure, 441 — V. Chauntry, 443, 476 — V. Great Northern R. C, 688, 860 — V. Great Indian Peninsular R. C, 317, 836 — V. Porter, 861 — V. Pyoroft, 376 — V. Reid, 815 — V. Strachan, 765 — V. Temperley, 692 Martindale v. Smith, 403, 404 Martinez v. Gerber, 850 Martini v. Coles, 140, 838 Martyn v. Gray, 670 Marvin v. Wallis, 417 Marys's case, 79, 101 Marzetti v. Williams, 87, 89, 465, 62:1, 8.54 Mason v. Barker, 735 — V. Famell, 140 — V. Haddon, 124 — V. Harvey, 111 — V HiU, 794 — V. Rumsey, 556 Massey v. Goodhall, 314, 392 — V. Johnson, 392 Master v. Miller, 438, 440, 492, 493 494 Master Pilots, &c. of Newoastle-upon- Tyne ii. Bradley, 13 TABLE OF CASES. Iv Masters v. Baretto, 477 — D. Barnwell, 206 — ■». Ibberson, 284, 490, 497 Masterton v. >Brooklyn"(Mayor, &c. ), 6 34 Mather r. Lord Maidston, 491 Mathew v. Blackmore, 278 Mattews v. Biddulph, 726 Matson v. Wharam, 388 Matthew v. Ollerton, 938 — V. Osborne, 773 Matthews v. Discount Corp., 623 Matthey v. Wiseman, 20 Mattison v. Hart, 4 Mavind v. The Monmouthshire Canal Co., 694 Maugham v. Sharpe, 434 Mawby, Ex parte, 230 Mawson v. Blane, 589, 590 Master v. P^ne, 514 May V. Breed, 261 — V. Burdett, 688 — V. Footner, 198 — V. Seyler, 442, 491 Mayall v. Higbey, 127 Mayer v. Burgess, 217 Mayhew v. Herrick, 126 — V. Suttle, 775 M'Call V. Taylor, 442, 477 M'Cance v. London and North -Western E. C, 830, 831 McLeod V. Wakley, 78 M'Dougal V. Eobertson, 134 Mead v. Toung, 442 Mears v. London and South- Western E. C, 839 Mechelen v. Wallace, 393 Medway Navigation Co. v. Earl of Eomney, 91, 795 Medwin, Ex parte, 233 Meeus v. Thellusson, 151 Megginson v. Harper, 477 Meggs V. Binns, 226 Melanotte v. Teasdale, 477 Mellersh v. Eippen, 469 Melling v. Leake, 183 Mellish V. Eichardson, 146 Mellor V. Leather, 127 Mellors v. Shaw, 143, 709 Melville v. Doidge, 812 Mercer v. Cheese, 496 — V. Irving, 629 Meredith v. Gittens, 59 — V. Meigh, 416, 417 Merest v. Harvey, 858 Merry v. Green, 958 — V. Stair (the Earl of), 272 Merrywether v. Turner, 768 Mersey Docks v. Qibbs, 659, 697 — Dock Board v. Penhallow, 659, 697 Messenger v. Clarke, 594 Messiter v. Eose, 168 Metcalfe v. London, Brighton, &c. E. C, 824, 828, 829 — V. Eichardson, 470 — V. Eycroft, 547 Metropolitan Ass. v. Fetch, 780 — Board of Works v. Metro- politan E. C, 83 — Saloon Omnibus Co. v. Hawkins, 695 Metzner v. Bolton, 513 Meux V. Lloyd, 227 MewsD. Carr, 424 — V. Mews, 693 Meyerstein v. Barber, 126 Macfarlane v. Taylor, 351 M'Fee, Ex parte, 234 M'Gregori).. Graves, 309 M'Intyre v. Belcher, 113 Michell v. Williams, 741, 743 Middleditch v. Ellis, 280, 552 Middleton v. Fowler, 698 — V. Gill, 648, 649 Midland R. C. v. Bromley, 837 — app\, Pye, resp., 4 — V. Daykin, 667 — V. Pye, 4 Milbum V. Codd, 651 Miles V. Gorton, 403 , MUgate V. Kebble, 403, 839 Millar c. Tayler, 11,22, Millen v. Hawery, 220 Miller v. Eace, 483 — V. Solomons, 4, 6 . — V. Tetherin'gton, '514 Millership v. Brookes, 272 Milligan v. Wedge, 696 Mills V. Alderbury Union, 131 — V. Barber, 490, 491 — V. Blackall, 306 — i;. Colchester (Mayor of), 20, 663 — V. Graham, 591 — V. Holton, 699, 812 Milne v. Marwood, 342, 343, 681, &ii MUner e. Maclean, 913 — V. Milnes, 142 Milnes v. Dawson, 488, 859 Milward it. Littlewood, 363 Miner ii. Gilmour, 794 Mines Royal Societies v. Magnay, 188 Minet v. Eound, 1 57 MinshuU v. Oakes, 636 Mitchel V. Reynolds, 365, 366, 370 Mitchell V. Crasweller, 198, 698, 699 — V. Jenkins, 736, 742, 743 — V. Knott, 663 — V. Lee, 240 — V. Miteheson, 248 Mitcheson v. Nicol, 113, 310 Ivi TABLE OF CASES. Mitehinaon v. Hewson, 137 Mittelholzeri). FuUarton, 363 Mizen v. Pick, 602 M'Kay v. Rutherford, 397 M'Eune v. JoyDson, 324 M'Kinnon v. Penson, 100 M'Laughlini). Pryor, 694, 697 M'Manus v. Crickett, 695, 698 — V. Lancashire and Yorkshire E. 0., 831 M'Naghten'acase, 867, 883, 884 Mookford v. Taylor, 166 Mody V. Gregson, 351 Moens v. Heyworth, 339, 342 Moffatt V. Dickson, 135, 164, 229, 536 — V. Yan Millengen, 615 MoUett V. Wackerbarth, 426, 493 Molton j;. Oamroux, 605 Monde .Steel, 635, 636 Money '"■ Leaoh, 201 Monks V. Dykes, 978 Montaoute ®. Maxwell, 392 Montague v. Benedict, 597, 599, 601 — V. Perkins, 455 Moon V. Durden, 7 — V. Eaphael, 861 — ■ V. Towers, 704 Moore, v. Campbell, 421,425, 428, 511 — V. Forster, 168 — V. Garwood, 305, 509, 570 — V. Guardner, 739 — V. Webb, 190 — V. Woolsey, 372 Moraut v. Chamberlin, 659 Moreron's case, 134 Moreton v. Hardern, 126, 687 — V. Holt, 215, 216 Morewood v. Pollok, 824 Morgan v. Jones, 192, 649 — t). Knight, 574 — a. Marquis, 123 — ■!). Metropolitan E. C, 129 — u. NiohoUs, 773 — •„. Pike, 198, 307 — V. Powell, 861 — v. Price, 264 — V. Eavey, 72, 138, 144, 326, 672, 820 — ,;. Vale of Neath E. C. , 709 — V. Thomas, 142, 612, 808 Moriarty v. Brooks, 686 Morison v. Salmon, 89 Morley v. Attenborough, 817, 818 — V. Boothby, 293 — II. Culverwell, 467, 487 — 1). Gaisford, 694 — V. Polhill, 134 Morley v. Eennoldson, 364 Mbrrell v. Martin, 106, 729 Morrice v. Baker, 222 Morris v. Martin, 602 — u, Moore, 141 — ■!>. Oliver, 460 — V. Vivian, 206 — n. Walker, 167 Morrison v. Chadwick, 173 — V. General Steam Navigation Co., 663 Mortimore v. Wright, 333 Morton V. Copeland, 380 Morton v. Tibbett, 415, 416, 417, 418, 420 . Moss V. Hall, 317 — V. Sweet, 404 MosBop V. Great Northern E. C, 234 Mostyu V. Coles, 206 — 0. Fabrigas, 46, 105, 197, 722, 741 Moule V. Brown, 482 Mounseyw. Ismay, 15 Mounson v. Bourn, 137 Mountcashel (Earl) v. Barber, 312, 552, 555 Mountjoy v. Wood, 44 Mountnoy v. Collier, 69 Mousley v. Ludlam, 15 Mowatt V. Londesborough (Lord), 279, 348, 522, 648 M'Phersonv. Daniels, 746, 875 Mucklow V. Mangles, 408 Muggleton v. Barnett, 12 Muirhead v. Evans, 208 Malcahy v. Eeg., 905, 907, 993 Mullett V. Hunt, 662 — V. Mason, 95, 661, 861, 872 Mulliok V. Eadakissen, 464 Mumford v. Gething, 366, 367, 377, 505 — V. Oxford and Worcester E. C, 780 Munoey v. Dennis, 512 Munden v, Brunswick (Duke), 170 Mungean v. Wheatley, 216 Munstere. South Eastern E. C, 836 Murchie v. Black, 83 Mure V. Kaye, 725 Murgatroyd v. Eobinson, 795 Murphy v. Caralli, 700 — V. Smith, 713 Murray v. Hall, 778 — V. Mann, 336, 338, 344 Muschamp v. Manchester and Preston R. C, 834 Musgrove v. Newell, 741 Muskett V. Hill, 126 Mustou V. Gladwin, 301 Myers v. Sari, 507, 509, 514, 516- — V. Willis, 535 Myrtle v. Beaver, 542 TABLE OF CASES. Ivii Mytton V. Cock, 812 — V. Midland R. C, 833 N. Naef V. Mutter, 153 Nagle V. Baylor, 497, 608 Nargatt v. Nyas, 126 Nash, Ex parte, 229 — V. Armstrong, 317 National Assurance Ass. v. Best, 624 Nazer v. Wade, 155 Neale v. Turton, 551 Neate v. Harding, 807 Neave v. Avery, 188, 772 Needham v. Bremner, 266, 601 — V. Bowling, 755 — V. Eraser, 662 Nelson v. Couch, 266 — V. Duncomhe, 604 — V. Pattrick, 399 — V. Serle, 385 Nepean v. Doe, 182 Neve V. Holland, 596 Neville v. Kelly, 324 Newall V. Elliott, 268| Newhorough v. Schroder, 165, 521 Newbould v. Coltman, 735 Newcastle-upon-Tyne (Master Pilots, &c., of), ■!;. Bradley, 510 Newell i;. Kadford, 422 Newhall t'. Ireson, 654 Newman, app,, Baker, resp., 987 Newnham v. Stevens, 807 New River Co. app., Johnson resp., 80 Newry and Enniskilleu E. C. v. Coombe, 586 Newsome v. Coles, 560 Newsou V. Smythies, 111 Newton, Ex parte, 1000 — £e, 999 — (Catherine), Se, 248 — (Francis), Me, 248 — V. Boodle, 142, 200, 723 — ••-. Chantler, 877 — V. Cubitt, 173 — 1). Ellis, 117 — V. Forster, 636 — V. Harland, 221 — V. Holford, 849 — V. Rowe, 211 Nichol V. Bestwick, 628, 856 — 0. Godts, 503, 514 — V. Martyn, 850 — V. Thompson, 649 Nioholl V. Allen, 100 NicboUs V. Bastard, 814, 838 — V. Diamond, 459 NiohoUa v. Stretton, 371 Nicholson v. Bradfield Union, 504, 566 — V. OoghUl, 739 — i/. Gooch, 357 — -i). Ricketts, 485, 487, 556 Niokells v. Atherstone, 430, 842 Nieklin v. Williams, 94 NieU V. Morley, 606 Nind V. Rhodes, 61 Noble V. Chapman, 198 — V. National Discount Co., 322, 437 — V. Ward, 421, 425 Nockels V. Crosby, 570 Noden v. Johnson, 687 Nordenstrom v. Pitt, 326 Norfolk R. C. v. M'Namara, 281 Norman v. Phillips, 417 Norris, app., Carrington resp., 217, 232 — V. Seed, 141, 847 — V. Irish Land Co., 129 North V. Holroyd, 217 — V. Smith, 688 North Staffordshire R. C. v. Peek, 384 Northam v. Bowden, 140, 801, 838 — V. Hurley, 91, 795 North- Western R. C. v. M "Michael, 586 — — V. Sharp, 846 Norton v. EUam, 456, 479 — V. Fazan, 602 Norwich (The Mayor of) v. Norfolk R. C, 357, 569 Norwood V. Stevenson, 137 Nosotti V. Page, 89, 626 Noton V. Brooks, 317 Nowell ^.Worcester (Mayor, &c.), Ill, 568 Nutt V. Rush, 167, 168 Nuttall V. Braoewell, 794, 795 Nye V. Moseley, 297 0. Oakes v. Turquand, 336, 337 — •<>. Wood, 687 Oakley v. Portsmouth and Eyde St«am Packet Co., 824 Oaste V. Taylor, 441 O'Brien v. Bryant, 746 — V. Clement, 746, 747 — ■„. Reg., 905, 993, 1000 Ockenden v. Henley, 641 O'Connell v. Reg., 906, 907, 993, 999 O'Connell's case, 907 O'Connor v. Bradshaw, 289, 861 Ogden V. Saunders, 259 Iviii TABLE OF CASES. Ogle V. Vane (Earl), 428 Ohrby v. Byde Comm., 659"' Oldershaw v. King, 334, 386 Oliver v. Oliver, 123 OUivant v. Bayley, 351, 684 Onley v. Gardiner, 792 Ondow V. Home, 754 Orchard v. Simpson, 508 Organ v. Brodie, 535 Oridge v. Sherborne, 476, 479 Orme v. Broughton, 134 — V. Galloway, 320, 649 Onnond v. Holland, 709, 710 Ormrod V. Huth, 340 Orton V. Butler, 117 Osbaldiston v. Simpson, 364 Osborn v. Yeitoh, 937 Osborne v. Harper, 552 Osterman v. Bateman, 741 Oughton V. Seppings, 807 Oulds V. Harrison, 435, 467 Outhwaite v. Hudson, 200 Overton v. Banister, 591 — V. Freeman, 658, 687, 696 — V. Harvey, 267 Owen V. Burnett, 826 — V. Challis, 173 — V. Knight, 140, 802 — V. Legh, 670 — V. Kouth, 634 — V. Van Uster, 459 — V. Wilkinson, 180 P. P. & 0. Steam Navigation Co. v. Shand, 827 Padmore v. Lawrence, 750 Page V. Newman, 648 Pain V. Whittaker, 839 Paine v. Strand Union (The), 566 Painter v. Abel, 532 Palgrave v. Windham, 142 Palk V. Skinner, 790 Palmer v. Forsyth, 248 — V. Grand Junction R. C, 828 Pancras v. Battersbury, 665 Panton v. Williams, 743 Pardington v. South Wales R. C, 833 Pardee v. Price, 129 Pai-is V. Levy, 78, 754, 758 Parker nj. Bristol and Exeter R. C, 217, 542 — 1!. Dormer, 46 — V. Ibbetson, 513 — V. Rolls, 846 — V. Staniland, 395 — V. Wallis, 418 — V. Winslow, 644, 647 Parkes v. Presoott, 746, 757 — v. Smith, 282 Parkins v. Carruthers, 560 — V. Scott, 761 Parmiter «. Coupland, 743, 754, 758, 941 Parr i>. Jewell, 467, 488 Parrott v. Anderson, 536 — V. Eyre, 542 Parsons ». Brown, 997 — V. Gingell, 821 — V. St. Matthews, Bethnal Green, 100 — V. Sexton, 636 Parton app., Crofts resp., 425, 426 Pasley v. Freeman, 343, 390, 842 Pater v. Baker, 762 Paterson v. Gandasequi, 537, 638, 639 — V. Harris, 181 — V. Wallace, 713 Patorni v. Campbell, 238 Patrick f. Ooleriok, 219 — V. Reynolds, 630 Patten v. Bea, 698 Pattison v. Jones, 749 Paul V. Joel, 469, 470 Pauling V. London and North Western B. C, 568 Paulton V. London and South Western B. C, 694 Paxton V. Courtnay, 19 — V. Popham, 287, 290, 362 Payne i). Brecon (Mayor of), 569 — V. Cave, 423 — V. New South Wales Coal, &c., Co., 568 — V. Wilson, 325, 334 Paynter v. Williams, 313 Peaohey v. Rowland, 696, 699 Peacock v. Bell, 157 Pearce v. Brookes, 372 — v. Coaker, 773 Pears v. Wilson, 72 Pearson v. Glazebrook, 241 — 0. Lemaitre, 747 — V. Spencer, 782 Pease v. Chaytor, 86, 106, 116, 733 — ■». Glodkec, 498 Peate v. Dicken, 318 Pedderu. Mayor of Preston, 180 Pedley i). Davis, 729, 735 Peek V. North Staffordshire R. C, 383, 831 Pell V. Daubeny, 254 — V. Shearman, 854 Pellatt V. Markwick, 124 Pemberton v. Chapman, 612 — V. Colls, 761 — V. Vaughan, 369, 370 TABLE OF CASES. lix Penfold V. Abbott, 138, 29S Penn v. Ward, 686 Pennell v. Alexander, 499, 536, 539, 545 — V. Aston, 205 Penney v. Slade, 732 Penny v. Price, 185, 187 Penrose v. Martyr, 459 Penruddoek's case, 222, 786 People (The) v. Loomis, 947 Pepper v. "WTialley, 147 Percival v. Oldacre, 352 — V. Stamp, 782, 784 Perkins v. Vaughan, 724 Perren v. Monmouthsliire E. C, 179, 180, 690, 838 Perry v. Fitzhowe, 223, 224 — V. Patchett, 148 — V. Skinner, i Ferryman v. Lister, 725, 742 Petch V. Lyon, 280 Peter v. Compton, 397, 398 Peters v. Fleming, 588 Peterson v. Ayre, 539, 632 Pether v. Shelton, 178 Peto V. Keynolds, 310, 442, 478 Petre v. Buncombe, 630, 649 Petrie v. Dawson, 397 — V. Lamont, 143 — V. Nattall, 266 Pettamberdass v. Thackoorseydass, 7 Petty V. Sidney, 111 Peytoe's case, 302 Phelps V. Prothero, 169 Philips V. Philips, 331 Philipson v. Egremont (Barl), 267 PhiUimore v. Barry, 383 Phillipps V. Briard, 512 Phillips J'a; parte, 237 — V. Clark, 823, 825 — ■». Clift, 276 — V. Edwards, 825 — V. Eyre, 46, 103, 723 — X,. Im Thum, 458, 459 — V. Jones, 122 — ■•!. Naylor, 82, 730, 739 — V. Ward, 264 Philliskirk ». Plnckwell, 133 Phillpotts V. Phillpotts, 291 Philpotts V. Evans, 632 Philps V. London and North Western B. C, 835 Pickard v. Sears, 842, 843, 845 — V. Smith, 658, 659 Pickering v. Busk, 532 — v. Ilfracombe, R. C, 240 — V. Rudd, 786 Pickford v. The . Craddook, 1000 - V. Crawshaw, 867 - V. Crick, 927 - V. Crook, 927 - V. Cruse, 888, 891, 935 - V. Cuddy, 918 - V. Dadson, 929, 931 - V. Dalby, 15 - V. Dant, 927 - V. Darlington School, 208 - V. Davies, 968 - V. Davis, 929 - 0. Day, 938 - 0. Denton (Inhabitants of), 1000 - It. Derbyshire, &o., Co. 230 - v. Deverell, 230 - V. Dickenson, 238 - V. Dixon, 955 - V. Dolan, 962 - V. Dougla«, 242 - 0. Dowling, 230 - V. Dring;, 962, 963 - V. Dulwich College (Master, &c.), 510 - -It. Dyson, 919 - V. Eagle, 924 - V. Eagleton, 879, 967, 968, 970 - V. EUiot, 872, 914 - V. Evans, 430, 951, 966, 967 - V. Everett, 67 - V. Faderman, 993, 1001 - V. Featherstoue^ 950 - V. Feist, 870 - V. Ferguson, 878, 961, 991, 1000 ■ V. Ferrall, 908 - o. Firth, 959, 960 - v. Fisher, 921, 931 ■ V. Fitch, 950 ■ V. Fletcher, 230, 938 V. Ford, 997 ■ V. Fordham, 70 ■ V. Fox, 236 • V. Frampton, 948, 962 ■ V. Franz, 925 ■ V. Fretwell, 880, 934 ■ V. Frost, 905, 989 ■ V. Fry, 969 V. Fuidge, 988 V. Gamble, 228 V. Gardner, 951, 969, 998 V. Garrett, 875, 970 V. Gajlor, 934 V. Gibbs, 971 V. Giles, 966 V. Glyde, 955 V. Godfrey, 947 V. Gompertz, 907 V. Goodbody, 951 — V. — V. — V. ■ — ■ V. ■ — V. — V. V. V. — V. — V. — V. — V. V. V. V. ■ — I). Keg. V. Goode, 887 Goodenough, 972 Gorbntt, 973 Qoss, 967, 969 Gray, 892, 919, 935 Green, 948, 950, 993 Greenacre, 921 Greenhalgh, 964 Greenwood, 934 Gregory, 243, 878, 944 Grifaths, 935 Gruncell, 954, 960 Guelders, 971 Hall, 954 Hampton, 235 Handley, 954 Hanson, 908, 938 Harden, 70, 231 Hardey, 284 Harris, 912, 1000, 1001 Harrison, 230 Haughton (Inhabitants of), 267, 291 Hawkins, 972 Henshaw, 966 Henson, 872 Herford, 232 Hertfordshire (Justices of), 233 Hewgill, 966 Hey, 951 Hey wood, 959 Hickling, 877, 914 Higginson, 882 Higgs, 978 Hill, 876, 883, 963 Hilton, 961 Hind, 995 Hobson, 962 HoUoway, 953, 954 Holmes, 872 Hopkins, 229, 933 Hopley, 926 Hornsea (Inhabitants of), 915 Horsey, 925 Howell, 912, 947, 952 Hudson, 907 Hughes, 927, 934 HullandSelby R. C, 229 Hull Dock Co., 238 Huntley, 931 Ingham, 874 Ingram, 891 James, 685 Jarrold, 978 Jarvis, 995 Jenkins, 952, 996 Jennings, 971, 975 Jennison, 967 Jessop, 965 Jewell, 238, 991 — V, V, TABLE OF CASES. Ixiii V. Johnson, 951, 961, 966 Eeg. V. Morrison, 947 V. Jones, 935, 9i5, 946, 948, — V. Mortlock, 908 965 — V. M'Pherson, 895, 977 V. Jordan, 889 — V. Murphy, 1000 B. Kay, 949 — V. Mutters, 915, 950 0. Keighley, 968, 969 — V. Nailor, 933 V. Kelly, 921, 931 — v. Neale, 893 V. Keni-ick, 907, 967 — V. Newman, 244, 942, 943, 944 V. Kerrigan, 965 — V. Nottingham Journal (Proprie V. Key, 992 tors of), 2^4 V. King, 894, 907 — V. Dates, 967 ■u. Kirkham, 923 — d. O'Brien, 905 ■1). Knight, 993 — V. O'Connor, 906 V. Lancaster and Preston R. C, — u. Oldham, 874 238 — V. Oxford, 885 V. Langford, 912 — V. Oxford (Mayor of), 229 V. Langley, 944 — V. Palmer, 991 V. Langmead, 962 — V. Pascoe, 909 V. Larkin, 1000 — V. Peck, 907 V. Latimer, 242 — V. Perkins, 961 V. Langher, 995 — V. Perry, 947 V. Lawes, 977 — V. Petrie, 915 V. Lee, 965, 967, 969 — V. Phelps, 936 V. Leeds and Bradford E. C, 7 — V. Phillips, 890 V. Leonard, 964 — V. Phiilpotts, 910 V. Lesley, 915 — V. Pierce, 102, 803 V. Lichfield (Town Council of), — V. Pitts, 918 534 — V. Plummer, 600 V. Light, 728 — V. Pooock, 928 V. Lister, 872 — V. Poole, 953. V. Longton Gas Co., 658 — V. Powell, 510, 947, 981, 982 V, Loose, 953 — V. Poynton, 951 V. Lord, 584 — V. Poyser, 952 V. Lovett, 876 — V. Pratt, 952 V. Lowe, 926 — V. Preston, 956, 957, 958 V. Luckhurst, 995 — V. Price, 930 V, Mainwaring, 229 — V. Prince, 965 V. Manchester (Mayor of), 238 — t). Privelt, 945, 954 V. Manning, 891, 954 — i;. Proud, 971 V. Marsh, 878, 970 — V. Purchase, 905 V. Marshall, 244, 909 — V. Eagg, 968 V. Martin, 937, 946, 967, 969 — V. Raines, 70 ■d. Masters, 972 — V. Read, 890, 937 V. M'Athey, 963 — V. Reaney, 996 V. Matthews, 891, 963 — V. Reardon, 962 V. Mawgridge, 917, 923 — 1). Reid, 934, 975, 982 V. Mears, 907 — u. Rice, 946, V. Mellor, 993, — V. Richards, 954 V. Meredith, 938 — V. Richmond, 909 o. Metropolitan Board of Works, — V. RUey, 958, 997 80, 99, 797 — V. Roberts, 879 V. Michael, 875 — V. Robins, 953 V. Millard, 910 — V. Robinson, 947, 950, 964 V. Mills, 969 — V. Robson, 953 V. Mitchell, 975 — V. Roebuck, 895, 967, 969 V. M'Kale, 948 — V. Rogers, 949, V. Moah, 894, 993 — V. Rowe, 948 V. Moore, 888, 955, 995 — V. Rowton, 998 V. Morgan, 953 — V. Rowlands, 906, lOOC V. Morris, 939, 947, 992 — V. Russell, 915 Ixiv TABLE OF CASES. . Eyland, 872,919 Saddlers' Co. (The), 146, 231, 286, 336 Samways, 946, 960 Sandon (Inhabitants of), 237 Sattler, 930 Saunders, 937 Savile, 245 Soaife, 238, 997 Scale, 237 Schmidt, 962 Serva, 930 Sharman, 894 Sharpe, 870 Shepherd, 872 Sherwood, 924, 967, 969 Shickle, 947 Shuttleworth, 992 ' Sill, 237 Simmons, 910 Simpson, 912, 974, 980 Sleeman, 996 Sleep, 874 Smith, 880, 891, 894, 919, .920, 948,952, 963, 968 Southampton (Commissioners of), 229, 230, 231 South Eastern K. C, 231 Stamper, 908 Stanton, 938 Stear, 952 St. George, 685 St. Martin's (Guardians of), 236 St. Peter's, Exeter (Chapter of), 229 Stephens, 915 Stokes, 884, 1000 Stowell, 910 Stripp, 986 Surrey (Justices of), 231 Swindall, 926 Taylor, 936 Thallman, 872 Thetford (Mayor of), 566 Thomas, 874, 951 Thompson, 907, 950, 953, 965 Thristle, 951, 952 Thurborn, 845, 955, 958 Tivey, 920 Tongue, 971 Townley, 883 Train, 719, 915 Trebiloock, 953 Tyler, 890, 920 Tyree, 971 Vann, 916 Vaughan, 99, 878 Vincent, 839, 948 Vodden, 999 Ecg. -u. Vyse, 882 — a. Walls, 974 — d. Walters, 919 — V. Walton, 974 — V. Wardroper, 963 — V. Warringham, 995 — V. Waters, 919 — V. Watson, 872, 968 — V. Watts, 946, 947, 972, 985, 997 — V. Webb, 872 — V. Welch, 230, 306, 368, 972 — V. Welman, 965, 966 — V. West, 957 — V. Westley, 910 — V. White, 960 — V. Whitehead, 927 — u. Whitehouse, 1001 — V. Wiley, 963 — V. Wilks, 237, 238, 991 — -D. Williams, 937 — V. Wilson, 875, 953 — V. Woodward, 962 — V. Woodrow, 867 — V. Woolly, 965, 966 — V. Worcestershire (Justices of), 230 — V. Wortley, 552, 971 — V. Wright, 950, 971, 972 — V. Wynn, 952 — V. York, 954 Eeid V. Fairbanks, 126, 408, 518, 852, 861 — V. Teakle, 137 Eeiudel*. Schell, 163, 628 Remington v. Dolby, 234 Reneaux v. Teakle, 599 Rennie v. Clarke, 555 Eeuss v. Picksley, 384 Eerett v. Brown, 777 Revis V. Smith, 78, 756 Rex V. Abingdon (Lord), 756 — V. Adams, 964 — u. Amier, 977 — V. Archdall, 236 — V. BaUey, 867, 980 — V. Banks, 951 — V. Barker, 243 — V. Barnard, 966 — V. Barton (Inhabitants of), 244 — V. Beale, 909 — V. Bear, 944 — V. Bembridge, 909 — V. Benfield, 243 — V. Berchet, 242 — V. Blake, 914 — V. Borron, 243 — V. Broadfoot, 7 — V. Brooke, 243 — V. Brooks, 947 — V. Burdett, 242, 245, 757, 994 TABLE OF CASES. Ixv Rex V. Bnrnaby, 234 Rex V. Gwilt, 2-14 — V, Bnrrowes, 978 — V. Haines, 980 — V. Bntterwoi-th, 982 — V. Hall, 980 — V. Byi'on (Lord), 917, 923 — V. Hamilton, 977 — r. Cabbage, 945, 954 — V. Hardy 903 — V. Campbell, 952 — V. Hargrave, 924 — V. Carlile, 755, 893 — V. Harland, 913, 914 — V. Carmarthen (Corporation of), — V. Hartley, 243 237 — V. Harvey, 242, 875, 877, 951 — V. Carroll, 887, 888, 977 — V. Haswell, 243, 244 — V. Cheadle (Inhabitants of), 296 — V. Hayward, 923 — V. Chester (Bishop of), 228 — V. Heath, 879 — V. Child, 912 — i: Heathoote, 228 — V. Chillesford (Inhabitants of), 584 — V. Hedges, 237, 972 — V. Chorley, 790 — 0. Hertford (Mayor of), 236 — V. Cochrane (Lord), 907 — V. Higgins, 878 -- ■». Compton, 982 — V. Hindinarsh, 933 — V. Conner, 880 — ■;;. Hood, 930 — V. Cook, 875, 930 — V. Howarth, 723, 930 — V. Cooke, 875 — V. Huggins, 918, 927 — V. Cornwell, 980 — V. Hughes, 875, 891 — V. Cowle, 228, 248 — V. Hunt, 726, 931 — V. Creevey, 755, 756 — V. Hyams, 980 — V. Crispe, 925 — V. Isherwood, 243 — V. Crossfield, 888 — V. Ivens, 783 — V. Curll, 914 — V. Jackson, 243, 937, 951, 976 — V. Cnrran, 930 — V. Jenour, 243 — V. Davies, 979 — V. Johnson, 993 — V. Davis, 979, 980 — V. Jollie, 243 — V. Dean, 889 — V. Jolliff?, 13, 243 — I). De Berenger, 907 — V. Jones, 867 — V. Dennison, 243 — -0. Jordan, 977, 979, 980 — V. Dingley, 981 — V. Keite, 926 — V. Dixon, 876 — V. Kennett, 912 — V. Drnmmond, 996 — V. Kidd, 924 — «-. Dunnage, 870 — V. King, 961 — 1,. Dyson, 919 — V. Lapier, 974 — 0. Edmonds, 208 — V. Larrien, 243 — V. Eggington, 978 — V. Levett, 931 — V. Eldershaw, 890 — V. Levy, 952 — V. Esop, 867 — 0. Locost, 981 — V. Etherington, 976 — 0. Long, 927 — V. Eve, 244 — V. Lords Commissioners of the — V. Farrell, 974 Treasury (The), 542 — V. Farrington, 875, 877 — V. Lynch, 923 — V. Ferrers (Lord), 248, 917 — V. Maeklow, 953 — V. Flannagan, 979 — V. Mahon, 939 — V. Ford, 930 — V. Manning, -931 — V. Francis, 237 — V. Marsden, 998 — V. Friend, 872 - V. Marshall, 243 — V. Fuller, 879 — V. Martin, 979 — V. Furnival, 981 — V. Mason, 974 — V. Gill, 938 — V. Mazagora, 876 — V. Gnosil, 974 — V. Mead, 931, 947, 995 — V. Goodall, 966 — V. Meakin, 887 — V. Gordon (Lord George), 905 — V. M'Kay, 237 — V. Gregory, 236 — V. M'Kinley, 893 — V. Grindley, 888 — V. M'Namee, 951 — V, Groombridge, 890 — -0. Moore, 876, 953, 974 — e. Grove, 972 — V. Morfitt, 954 Ixvi TABLE OF CASES. Eez V. Morris, 891 — V. Murphy, 924 — V. Niohol, 937 — -u. Oakley, 913 — V. Ogden, 237 — V. O'Meara, 243 — V. Oneby, 918 — V. Osborne, 243 — V. Owen, 889, 961, 977 — V. Paine, 978 — V. Parker, 966 — V. Parry, 237 — ■». Passey, 977 — V. Patch, 953 — V. Pear, 951 — V. Pearce, 975 — V. Pearson, 960 — V. Peltier, 906 — V. Perkins, 924 — V. Phillips, 953, 954 — V. Philp, 876 — V. Pioton, 918 — V. Pinney, 912 — V. Price, 891, 912 — V. Pritchard, 887 — V. Quayle, 237 — V. Eead, 686 — V. Rees, 979 — V. Eichards, 871, 915 — V. Robinson, 243, 975, 980 — V. Rosinski, 937 — V. Russell, 919, 980 — V. Sainsbury, 243 — V. Scofield, 878, 901 — 1!. Scully, 931 — V. Sedley, 872, 914 — V. Severn and Wye E. C, 228 — V. Seward, 907 — V. Sharpness, 245- — V. Sheppard, 876 — V. Shipley, 940, 941 — V. Simson, 960 — V. Smith, 952, 978, 979, 980 — V. Smyth, 913 — V. Somerville, 978 — 1). Spearing, 947 — u. Spilling, 927 — r. St. Asaph (Dean), 866, 941 — f. St. Katberine's Dock Co., 228 — ■•>. Stafford (Marquis), 228 — 1). Steward, 244 — V. Stock, 951 — V. Story, 966 Sutton, 890 Taylor, 977 Thomas, 887, 912, 922, 923 Thompson, 930, 974 Tindall, 916 Tooke, 3 V. V. V. V. Rex V. Turner, 977, 978 — V. Van Butohell, 927 — V, Tandercomh, 981 — V. Vaughan, 909 — V. Villenenve, 966 — V. Wakeling, 966 — V. Walker, 947 — V. Walkley, 962 — V. Wall, 918, 925 — V. Walsh, 960 — V. Ward, 916 — V. Warwick (Earl), 893 — V. Watson, 940, 994 — V. Watts, 947 — V. Webb, 927, 1001 — V. Westbeer, 947 — V. Wheatley, 870, 967 — V. White, 237 — V. Whiteley, 924 — V. Wiggs, 926 — n. Wild, 889 — D. Wilford, 979 — V. Wilkes, 22, 729, 914 — V. Williams, 236, 243, 914, 935 — V. Wilson, 220, 913, 914 — V. Withers, 245, 941 — V. Woodbum, 874 — V. Woodcock, 996 — V. Woodfall, 874, 941 — V. Woolmer, 930 — V. Young, 732 Reynell v. Lewis, 530, 569 — V. Sprye, 336, 365, 365 Eevnolds v. Bridge, 627, 629 — i: Clarke, 126 — V. Doyle, 446 — V. Harris, 746 — V. Wheeler, 312 Rhodes v. Gent, 457 — V. Haigh, 134 — V. Smethurst, 187 Rice V. Baxendale, 647 — ^. Chute, 542 — u. Everett, 542 — u. Shepherd, 601 Rich V. Anderson, 234 — V. Basterfield, 143, 700, 701 Richards u Hanley, 153 — V. Harper, 82 — V. James, 181 — V. Johnston, 430, 844 — V. London, Brighton, and South Coast R. C, 837 — V. Richards, 133 — V. Rose, 84, 206, 786 Richardson v. Chasen, 646, 860 — V. Dunn, 352, 646 — V. Jackson, 178 — V. Locklin, ICl V. Walker, 12 TABLE OF CASES. Ixvii Blchbellv. Alexander, 133, 594 Bichmond v. Nicholson, 144 — V. Smith, 819 Eicketr). Metropolitan R. C, 99 Bicketts v. Bennett, 535 — V. Bodenham, 234 — V. East and West India Docks, &o. R. C, 666 — v. Weaver, 134 Bickford v. Ridge, 464 Bidgway v. Allen, 239 — V. Wharton, 310, 376, 383, 421 Ridley v. Plymouth, Devon, &c. Co. , 568 Eigby V. Great WeBtern B. C, 274 — V. Hewitt, 689 Rigeway's case, 90 Bigg V. The Earl of Lonsdale, 778 Rigge V. Burbidge, 635 Riley v. Baxendale, 709 — V. Home, 823, 824 — 1/. Packingtsn, 529 Rippinghall v. Lloyd, 431 Bisbourg v. Bruckner, 538, 539 Bist V. Faux, 79, 849 Bitchie V. Smith, 358 — V. Van Gelder, 198 Rixon V. Emai-y, 167 Roach V. Wright, 238 Roath V. Driscoll, 79 Robarts r. Tucker, 88, 463 Bobbins v, Fennell, 321 — V. Heath, 321 — V, Jones, 658, 700, 715 Bobert Mary's case, 850 Boberts v. Barker, 514 — V. Bethell, 454, 590 — V. Brett, 111, 276 — V. Great Western E. C, 656, 667 — 0. Hughes, 206 — V. Orchard, 117 — V. Roberts, 291, 761 — v. Bose, 225 — ». Smith, 254, 709 — 41. Tayler, 686 — V. Tucker, 383, 398 Eobertson v. Fleming, 317, 679, 846 — V. French, 611 — V. Jackson, 609 — ■». Norris, 593 — ■», Wait, 130, 322 Bobins v. Fennell, 321 — V. Heath, 321 — 1). May, 477 Bobinson v. Alexander, 184 — V. Bland, 624 — V. Cotterell, 148 _ V. Gell, 663 Bobinson v. Gleadow, 205, 638 — V. Hardy, 137 — V. Harman, 630, 639, 640 — V. Hawksford, 482 — V. Lenaghan, 236 — V. London and South Wes- tern E. C, 830 — V. Marchant, 140, 761 — V. Raley, 161 — V. Reynolds, 490 — v. Budkins, 136 — 0. Butter, 139, 838 Bobson V. Bennett, 463, 482 — V. Oliver, 485 Eochdale Canal Co. v. King, 91, 795 — — . V. Radcliffe, 791 Rochester (Dean, &o.) v. Pierce, 566 — (Mayor of) v. The Queen, 228, 229, 230 Bodgers v. Maw, 807 — V. No will, 89 — V. Parker, 94, 670, 803 Bodrigues v. Melhuish, 692 Bodway v. Lucas, 150 Rodwell V. Phillips, 395 Roe V. Birkenhead, Lancashire, and Cheshire R. 0., 702, 835 — v. Galliers, 768 Roifey v. Greenwell, 478 — V. Henderson, 127, 434, 800 Rogers 1^. Brenton, 15, 18 — V. Chilton, 489 — V. Clifton, 749 — V. Dutt, 104, 652, 857 — ». Hadley, 268, 336, 376 — V. Hunt, 149 — V. Langford, 483 — V. Macnamara, 682, 762 — V. Spence, 572, 573, 860 — V. Taylor, 17, 83, 85, 785 Rohde V. Thwaites, 405 Roles V. Davis, 198 Rolin •.;. Steward, 88, 206, 466, 623, 761, 854, 856, 860 Rolls V. Rock, 140 Rolph v. Crouch, 6,23, 646 Rooth V. North Eastern R. C, 830 — V. Wilson, 812, 838, 839 Roots v. Dormer (Lord), 423 Roper V. Holland, 130 Roret V. Lewis, 740 Roscorla v. Thomas, 327 Rose V. Wilson, 723 Bosewarne v. Billing, 361 Bosewell v. Prior, 143 Boss V. Gandell, 147 — V, Green, 163 — V. Hill, 822 — V. Hunter, 981 — V. Norman, 740 e 2 Ixv TABLE OF CASES. Eotton V. luglis, 489. Kouch V. Great Western K. C, 85& Boutledge v. Grant, 304 — V. Hislop, 265 — V. Low, 653 Rowberry u Morgan, 149, 365 Kowbotham v. Wilson, 82, 785 Kowe V. Hopwood, 589 — V. Tipper, 468 Rowlands v. Samuel, 861 Rowley v. Home, 824 Euok V. Williams, 655, 659 Ruckero). Oammeyer, 425 Ruckmaboye v. LuUoobboy Mottichund, 182 Rudder v. Price, 11 > Ruddock V. Marsh, 598 Rugg V. Minett, 404 — 11. Weir, 113 Rumball v. Ball, 479 Rumsey v. Webb, 746 Rundle v. Little, 85.4 Rushtonoi. Aspinall, 451 Russel V. Langstaffe, 481 Russell V. Briant, 143 — V. Come, 849 — V. Da Bandeira, 114 — V. Devon (Men of), 100 — • V. Nicolopulo, 352 — V. Phillips, 476 — V. Smyth, 121 — V. Thornton, 338, 347 Russian Steam Navigation Co. v. Silva, 516 Rust V. Nottidge, 169, 306 Rutland (Duku of) v. Bagshawe, 233 Ruttinger v. Temple, 333 Ryalls V. Leader, 755 — V. Reg., 106, 999 Ryan v. Clarke, 139, 662, 777 — v. Sams, 692 Ryder t>. Wombwell, 588 Rylands v. Fletcher, 683, 787 Sack V. Ford, 692 Sadler v. Henlock, 658, 699 — V. Leigh, 132 — ■;;. Nixon, 552 Sainsbury v. Matthews, 395 Sainter v. Ferguson, 365, 367 Salisbury (Marquis of) v. Gladstone 12, 15 Salkeld v. Johnson, 6 Salmon v. Watson, 397 — V. Webb, 377 Sampson v. Hoddinott, 92, 794 Samuel v. Green, 460, 464 Samuel v. Payne, 726 Sandeman v. Scurr, 692 Sanders v. St. Neot's Union, 5'36 — V. Vanzeller, 498 Sanderson v. Griffiths, 595 Sandilands, Ex parte, 246 — V. Marsh, 553 Sandon v. Jarvis, 739 Sands v. Childs, 702 — V. Clarke, 112, 480 Sanquer v. Loudon and South Western R. C, 861 Santos V. Illidge, 363 Sard?). Rhodes, 177 Sargent I). Wedlake, 291 Sari V. Bourdillon, 421, 509 Saul V. Jones, 457 Saunders v. Bate, 198 — ■;;. Mills, 755 — V. Topp, 412, 414 — V. Wakefield, 382 Saunderson v. CoUman, 458 — V. Jackson, 383, 422 — V. Piper, 444, 583 Savignac v. Roome, 117 Saville v. Sweeny, 132, 141, 594 Saxby v. Manchester Sheffield, &c., R. C, 701 Sayeri). Wagstaff, 177 Sayles v. Blane, 311 Sayre v. Eochford (The Earl of), 729 Scales V. Cheesej 146, 759 Scarpellini v. Atchesou, 133, 594 Scattergood v. Sylvester, 102, 126, 803 Schloss V. Heriot, 636, 688 Schmaltz v. Kv^tj, 545 Schreger v. Carden, 179 Schuster v. McKellar, 692 — V. Wheelwright, 164 Scope V. Paddison, 163 Scorells. Boxall, 395 Scothorn v. South Staffordshii-e R. C. , 834 Scotson V. Pegg, 316, 330 Scott V. Avery, 45, 363 — v. Dickson, 344, 842 — V. Eastern Counties K, C, 410 — ■•'. Ebury (Lord), 546 — u. Liverpool (Corporation of), 45 — V. London Docks Co., 657 — V. Scott, 698 — V. Seymour (Lord), 46 — V. Shepherd, 97, 124, 656, 683, 687 — V. Stansfeld, 105, 755 — V. Uxbridge, &c , R. C. 178 — V. Zygumala, 192 Scottish North Eastern R. C. v. Stewart, 669 TABLE OF CASES. Ixix Scrivener v. Past, 529, 697 Seare v. Prentice, 721 Searle v. Lindsay, 709, 713 Sears v. Lyons, 856 Peaton v. Benedict, 597 Sebag •». Abithol, 456 Sedgwick ». Daniel], 551, 552 Sedman v. Walker, 97, 1 43 Seeger «. Duthie, 112, 275 Seignior v. Wolmer, 132 Selby V. Bardons, 163 — V. East Anglian R. C, 440 — V. Eden, 457 Sellin V. Price, 492 Semayne's case, 653 Semenza v. Brinsley, 540 Semple's ease, 953 Senior v. Ward, 689 Sentance v. Poole, 608 Serres v. Bodd, 142 Servante v. James, 131 Sewell V. Jones, 68, 69 Seymour v. Greenwood, 698 — V. Maddox, 671 Shack V. Antbony, 547 Shackell v. Kosier, 357, 360 ShadweU v. Shadwell, 193, 317 Shannon v. Shannon, 126 Sharland v. Leifchild, 168 Sharpe v. Brice, 626 — V. Gibbs, 282 Sharpies v, Kiokard, 473 Sharrod «. London and North Western R C, 126, 667, 693, 695 Sbattock V. Garden, 267 Shaw V. Beck, 291 — V. Chairitie, 723 — V. Holland, 631 — V. Stenton, 85 — i;. Thackray, 608 — V. York and North Midland R. C, 833 Shedden v. Patrick, 267 Sheehy ■». Professional Life Ass, Co., 151, 161, 170, 267 Shelton v. Li-rius, 378, 423 — V. Springett, 333 Shepherd v. Bristol and Exeter R. C, 837 — V. Harrison, 406, 499 — u. Hills, 270, 665 — c. Johnson, 633 — V. Pybus, 351 — V. Shepherd, 165 Sheridan v. New Quay Co., 402 Sherriflf v. WUks, 560 Sherrington v. Yates, 133, 594 Sherwin v. Swindall, 736 Shillibeer v. Glyn, 813 Ship's case, 350 Ship Money (case of), 37 Shore v. Wilson, 510, 516 Short V. Kalloway, 646 — -u. M'Carthy, 187 — D, Simpson, 499 — V. Stone, 112 Shortridge v. Young, 239 Shower v. Pilck, 434, 859 Shrewsbury Peerage case, 6 Shrewbur/s (Earl) case, 524 Shrewsbury and Birmingham R. C. v. London and North Western R. C, 363, 569 Shubrick V. Salmond, 293 Shute V. Robins, 482 Shuttleworth 1). LeHeming, 790 Siboni v. Kirkman, 138, 298, 614 Sibree v. Tripp, 177, 431, 432, 477 Sibthorp v. Brunei, 275 Sickens v. Irving, 531 Siddon v. East, 44 Sidney's (Algernon) ease, 904 Sievewright v. Archibald, 422, 426 Siggers v. Evans, 269, 435 Sigourney v. Lloyd, 460 Sikes V. Wild, 639, 640 Silk V. Osborne, 574 Sill V. Reg., 1000 Sim V. Edmands, 169 Simmons v. Edwards, 593 — I). Heseltine, 639 — -0. Humble, 418 — V. Lillystone, 164, 805, 857 — V. Lilly white, 126 — J). MilUngen, 728 — V. Swift, 403, 405, 409 Simon v. Motives, 422 . Simond v. 3raddon, 351 Simons v. Great Western R. 0., 831, 832 — V. Patchett, 264, 352, 545, 639, 646 Simpkins v. Pothecary, 464 Simpson v. Accidental Death Insurance Co., 843 — V. Bloss, 361 — V. Egginton, 707 — V. Fogo, 267 — V. Howden (Lord), 286, 363 — V. Lamb, 180, 365, 680 — •!). Margitson, 444, 508 — V. Robinson, 750 — V. Savage, 780 — V. Westminster Palace Hotel Co., 569 Sims V. Bond, 539, 540, 558 — V. Brittain, 657, 658 — V. Brutton, 185 — V. Marryat, 818 Sinclair v. Eldred, 739 Ixx TABLE OF CASES. Singleton v. Eastern Counties E. C, 689 Siner v. Great Western R. C, 656 Siordet v. Kuoynski, 199 Six Carpenters' case, 784 Skeate v. JBeale, 610 Skelton v. London and North Western R. C, 689 Skinner v. Stocks, 558 — V. The London, Brighton, and South Coasts. C, 690 Skipp V. Eastern Counties K. C, 708, 709, 713 Slade'scase, 119, 265 Slater v. Baker, 721 Sleath V. Wilson 698 Sleddon v. Cruikshank, 397 Sleigh V. Sleigh, 446, 492 Slim V. Great Northern K. C, 833, 835 Slocombe v. Lyall, 776 Sloper V. Cotterell, 694 Slowman v. Button, 760 Smalley v. Kerfoot, 807 Smallpieoe v. Dawes, 597 Smart i'. Harding, 393 — V. Jones, 434 — V. Morton, 85 — V. Sanders, 319 Smeed v. Poord, 647 Smeeton v. Collier, 57 Smethurst v. Mitchell, 538 Smith V. Backwell, 167, 168 . — V. Birmingham Gas Co. (The), 143 — v. Bond, 148 — V. Braine, 490, 491 — 0. Bromley, 359, 365. — 0. Chance, 405 — V. Chester, 458 — -a. Cuff, 385 — V. Dearlove, 821 — V. Great Eastern E. C, 688 — V. Hartley, 191 — V. Hixon, 848 — V. Howell, 646 — ■». Hudson, 418 — V. Hull Glass Co., 568 — V. Jeifryes, 603, 514 — 1). Johnson, 458 — 1). Kay, 343 — V. Kenrick, 77, 85 — V. Lindo, 357, 358, 426 — V. Lloyd, 182 — ■W.London, &c., Docks Co., 658 — V. London, Brighton, and South- Coast R. C, 828 — V. Lovell, 165, 168 — V. Manners, 111, 178 Smith V. Marsaok, 167, 458, 528, 597, 636 — V. Mawhood, 358 — V. M'Guire, 458, 532, 631 — i). Milles, 139, 652, 777, 808 — V. Monteitb, 497 — v. Mundy, 802 — V. Neale, 319, 384, 398, 817 — V. O'Brien's case, 1002 — V. Peat, 637 — V. Plomer, 595 — V. Roche, 333 — V. Salzmann, 287, 365 — V. Scott, 293 — V. Shirley, 725 — 1). Simmonds, 134 — V. Sleap, 140 — V. Smith, 489 — V. Surman, 392, 395, 410 — V. Tett, 773 — V. Thackerah, 75, 85, 186 — V. Thompson, 275, 619, 638 — V. Thome, 185, 186, 331 — V. Troup, 534 — V. Trowsdale, 172, 300, 302 — r. Vertue, 454 — V. Wilson, 607, 509, 516 — V. Winter, 121, 177 — V. Wood, 233 — V. Woodfine, 623 — V. Wright, 220 Smout V. Ilbery, 642, 543, 596 Smurthwait V. WUkins, 499 ■ Smyth, Ex parte, 233 — V. Anderson, 537, 638, 539 Snead v. Watkins, 783 Suell V. Finch, 258 Snelling v. Lord Huntingfleld, 397 Snow V. Franklin, 299 Snowdon v. DaTis, 542 Solartec. Palmer, 468, 470 SoUy V. Forbes, 282 — li. Neish, 173 Solomon v. Graham, 190 — V. Lawson, 769 — V. The Vintners' Co., 84, 85 Soltau V. De Held, 718, 719, 720 SomerviUe v. Hawkins, 748, 750, 751 SoramervUle v. Mirehouse, 76, 732 Souch V. Strawbridge, 397, 398 Southampton Bridge Co. v. Southamp- ton Local Board, 659 Southampton (Lord) v. Brown, 270 Southcote V. Stanley, 661, 671 South-Eastern R. C. v. Warton, 292 Southee v. Denny, 760 South of Ireland Colliery Co. v. Wad- dell, 563, 564 South- Yorkshire R. C. v. Great North- ern R. C, 669 TABLE OF CASES. Ixxi Sowerby v. Butohei^ 647 — V, Coleman, 14 V. Wads worth, 611 Sparrow v. Carruthers, 592 — V. Paris, 629 Spartali v. Benecke, 513 Spedding v. NevUle, 254, 352, 647 Speight V. Oliveira, 849 Spenoe v. Healey, 300, 302 Spencer v. Dennett, 189 Spencer's case, 130, 276 Spicer ». Cooper, 509 Spill V. HaU, 749 Spindler v. GfreUett, 480 Spittle V. Lavender, 547 Spooner v. Juddow, 170 Spreadbury v. Chapman, 597 SpTott V. Powell, 542 Sprye v. Porter, 365 Spurrier v. Allen, 541 St. Helen's Smelting Co. v. Tipping, 720, 786 St. Losky V. Green, 198 St. Panoras Vestry v. Batterbury, 108 Stables v. Eley, 698 Stafford (Mayor of) V. Till, 566 Stagg V. Elliot, 458 Stainbank v. Penning, 535 — V. Shepard 535 Stallard v. Great Western E. C, 836 Stammers v. Yearsley, 727 Stamp V. Sweetland, 117 Stancliffe v. Claa-ke, 200 Standewick v. Hopkins, 206 Stanley v. Western Insurance Co., 95 Stannard v. UUithorne, 168 Stanton v. Collier, 642 Stapleton v. Haymen, 140, 801 Stapley v. London, Brighton and South- Coast R. C, 666 Stark V. Highgate Archway Co., 565 Startup V, Cortazzi, 631 Stavers v. Curling, 275 Stead V. Anderson, 857 — V. Dawber, 428 Steadman v. Hockley, 122 Stebbing v. Spieer, 477 Stedman v. Smith, 778 Steel V. The South Eastern E. C, 697 Steele v. Hoe, 334 — V. Mart, 271 — V. Williams, 542 Steer v. Crowley, 624 Steiglitz V. Egginton, 557 Stephens zi. Elwall, 702, 804 — V. Myers, 685 — V. Reynolds, 454, 507, 656 Stephenson v. fiaine, 67, 69 Sterry v. Clifton, 358, 365 Steuart v, Jones, 67 Stevens v. Copp, 277 — 0. Gourley, 355 — V. Jeaeocke, 108, 666, 670 — V. The Midland Counties E. C, 741 — V. Underwood, 497 Stevenson v. Hardie, 696 — V. Newnham, 335, 738, 806 — V. Thome, 152 Steward v. Gromett, 78, 744 Stewart v. Cauty, 631 — V. Collins, 1.68 — V. Fry, 135 — V. London and North- Western E. C, 836 — V. Smith, 193 — V. Wilkins, 349 Stikeman v. Dawson, 590 Stiles V. Nokes, 754 Stindt V. Roberts, 205 Stirling v. Maitland, 277, 634 Stockdale v. Onwhyn, 372 Stockport Waterworks Co. v. Potter, 795 796 Stocks u. Booth, 777 Stoessiger v. South Eastern R. C, 442, 826 Stone V. Jackson, 658 — i). Marsh, 103 — V. Rogers, 120 — V. Strange, 193 Stonehouse t). Elliott, 728 — V. Gent, 535 Storer v. Gordon, 130, 270 Storett V. Blay, 350 Storm V. Stirling, 444, 477 Story V. Ashton, 698 — Ex parte, 149, 233 — V. Finnis, 179 — V. New York and Harlem R. C, 634 — V. Richardson, 558 Stourbridge Canal Co. v. Dudley (Earl of), 786 Stowel V. Lord Zouch, 6 StoweU V. Robinson, 428 Strakeri). Graham, 206, 482 Stranks v. St. John, 326 Strauss V. Francis, 534 Street v. Blay, 89 Streeter v. Horlock, 326, 334, 636 Strickland v. Tomer, 320 — V. Ward, 733 Strithorst v. Grseme, 182 Strong V. Foster, 377 Stronghill v. Buck, 292 Strother v. Barr, 781 Stroud, He, 514, 521 Stroyan v. Knowles, 83, 85 Strutt V. Farlar, 630 Ixxii TABLE OF CASES. Stuart V. Murrell, 460 Stubbing V. London and N.-Western R. C, 656 Stubbs V. Holywell, 134, 135 — V. Horn, 136 — V. Twynam, 135 Stubs V. Stubs, 135 Stucley -0. Eailey, 352 Sturgis V. Darell, 183 — V. Joy, 230 Sturt V. Blagg, 758 Sturton V. Eiohardson, 12-t Styles V. Wardle, 271 Submarine Telegraph Co. v. Dickson, 46, 659 Suffield V. Brown, 782 Sully ■». Frean, 489 — V. Duranty, 637 Summers v. Solomon, 529, 533 Sunbolf V. Alford, 687 Sunderland Marine Insurance Co. v. Kearney, 120 Suse V. Pompe, 512, 648 Sussex Peerage case, 996 Sutoliffe V. Booth, 795 Sutherland v, Murray, 745 — V. Pratt, 172, 173 Sutton V. Bishop, 211 — V. Back, 140 — ■». South Eastern K. C, 129 Sutton's ease, 122 Swain v. Sheppard, 406 Swan, £x parte, 531, 844 — V. North British Australasian Co., 465, 531, 844 Swann v. Phillips, 391 Swanwick v. Sothern, 409 Swatman v. Ambler, 130, 307 Sweet V. Lee, 383, 384 Sweeting v. Darthez, 518 — V. Pearce, 529, 531 Swinerton v. Stafford (Marquis), 207 Swiufen v. Lord Chelmsford, 107, 534 — V. Swinfen, 63, 534 Swirg V. Leash, 853 Swithin v. Vincent, 144 Sydaerffi;. Eeg., 907 Syers v. Jonas, 512 Sykes v. Dixon, 306 — V. Giles, 424 Symonds v. Atkinson, 804 — V. Dimsdale, 216, 237 — V. Lloyd, 512 gyms V. Chaplin, 826 Syred v. Carruthers, 816 T. Taafe v. Downes, 105 Tabart v. Tipper, ?54 Taff Vale R. C, v. Nixon, 123 Tallis V. Tallis, 366, 368, 369 Tamvaco v. Simpson, 853 Tancred v. AUgood, 802, 809 Tanistry, Lecasede, 15 Tanner v. Moore, 304 — V. Smart, 185 Taplin v. Florence, 161, 424, 434 — V. Jones, 789 Tarbuck v. Bispham, 606 Tarleton v. Shingler, 494 Tarling v. Baxter, 403 Tamer v. Walker, 95, 324 Tarrant v. Baker, 117 — V. Webb, 710 Tasker v. Shepherd, 138 Tassel v. Cooper, 462, 539 Tattan v. Gfreat Western E. C, 72, 672, 836 Tattersall o. Fearnley, 198 — V. Parkinson, 431 Tatton V. Wade, 95, 391, 681 Taunton v. Costar, 776 Taverner v. Little, 698 Taylor d. Atkyns v. Horde, 182 — V. Addyman, 61 — V. Ashton, 341 — V. Best, 430 — V. BuUen, 351 — V. Burgess, 378 — V. Caldwell, 113, 138, 29S, 613, 622, 634, 814 — V. Chester, 372 — V. Chichester, &o. E. C, 363', 624 — V. Cole, 220 — V. Croker, 458 — V. Crowland Gas and Coke Co., 358, 569 — V. Great Northern E. C, 825 — V. Hawkins, 748, 750 — V. Hilary, 430 — -1). Horde, 765 — i>. Laird, 638 — V. Neri, 95 — V. Nesfield, 117, 192, 734, 735 — V. Turnbull, 202 — V. Wakefield, 417 Taylor's Estate, ite, 297 Teague v. Hubbard, 661 Teall V. Autey, 393, 395 Tear v. Freebody, 805 Tebbutt V. Holt, 739 Tempest v. Fitzgerald, 413 — K. Kilner, 132, 410, 438, 500, 631 Temple v. Pullen, 465 Templeman v. Haydon, 217, 690 Terry v. Hutchinson, 79, 849, 855 TABLE OF CASES. Ixxiii Thackoorseydass v. DhondmuU, 364 Thame v. Boast, 431 Tharpei). Stallwood, 612, 781, 808 Tharratt v. Trevor, 226 Thatcher v. England, 324 Thelwall v. Yelverton, 157 Theobald v. Eailway Passengers' Assu- rance Co., 646 Thorn V. Bigland, 339 — (J. Chinuock, 157 Thomas v. Bishop, 442 — V. Churton, 104, 755 — V. Cross, 62, 181 — V. Edwards, 541 — V, Fredericks, 434 — V. Hudson, 729 — V. Shillibeer, 560 — V. Thomas, 130, 317, 319, 792 Thomlinson's case, 246 Thompson, In re, 227 — V. Bell, 440, 462, 536 — V. Davenport, 537, 538, 539 — V. Dominy, 498 — V. Gibson, 143 — ■<;. Gillespy, 636 — V. Gordon, 227 — V. Hakewill, 131 — V. Hopper, 862 — V. Hudson, 628 — V. Ingham, 69, 234 — V. Jackson, 178 — V. Knowles, 170 — V. Laey, 783, 819 — V. North Eastern E. C, 659, 689 — V. Percival, 560 — V. Pettit, 852, 861 — V. Ross, 79, 849 — V. Sheppard, 179, 687 — V. Wood, 860 Thomson v. Mitchell, 697 Thornborrow v. Whitaore, 631 Thorne v. Dease, 680 — V. Smith, 488 — V. Taw Vale R. C, 719 — V. Tilbury, 817 Thornton v. lUingworth, 590 — 11. Jenyns, 308, 325, 334 Thorogood v. Bryan, 715 Thoroughgood's case, 272 Thorpe v. Thorpe, 325 Thoyts V. Hobbs, 858 Throckmerton v. Tracy, 523 Thurboru's case, 956 Thursby v. Plant, 130 Thurtell v. Beaumont, 206 Tickle V. Brown, 791 Tidman v. Ainslie, 757 Tighe V. Cooper, 176, 746 Timmins v. Gibbins, 486 Timothy ». Simpson, 723 Tindal, Ex parte, 138 — V. Brown, 449 Tindall v. Bell, 861 — V. Taylor, 498 Tinkler's case, 996 Tinuiswood v. Pattison, 234, 729 Tipper v. Bicknell, 314, 325 Tippets V. Heane, 185 Tobacco Pipe Makers' Co. v. Lodor, 121, 184 Tobini). Reg., 251 Toby V. Hancock, 148 Toddi). Emly,190, 555 — e. Flight, 143, 701 Toftw. Rayner, 232 Tomkius v. Willshear, 123 Tomkinson v. Straight, 412 Tomliuson's case, 246 Tomlinson v. Gell, 387 Toms V. Wilson, 48, 854 Toogood V. Spyring, 748, 750, 751 Toomey v. London, Brighton, and South Coast R. C, 656, 688 Topham v. Morecroft, 694 Toppin V. Lomas, 394 Torrence v. Gibbins, 849 Torriugton (Lord) v, Lowe, 514 Tottendelli). Fareham Brick Co., 588 Toussaint v. Martinnant, 312, 552 Touteng'j). Hubbard, 112 Towne «. Lewis, 126, 805 — V. London and Limerick Steam Ship Co., 152 Towns 0. Mead, 184 Townsend v. Thorpe, 233 — V. Wathen, 737 Tozerv. Child, 86, — V. Mashford, 760 Tracey v. M'Arltnn, 137 Treadwen v. Great Eastern E. C, S26 Tredwen v. Bourne, 535 — V. Holman, 45 Trent u. Hunt, 168, 258 Trimbey v. Vignier, 473 Tripp V. Armitage, 405 Trueman v. Loder, 426, 507, 521 Truscott V. Latour, 192 — V. Merchant Tailors' Co., 19, 788 Tucker, Esc parte, 232, 234 — V. Chaplin, 715 — V. Newman, 781 — ■». Tucker, 540 Tuff V. Warman, 689 Tugman v. Hopkins, 594 TuUey v. Reed, 686 Tullidge V. Wade, 855 Tummonsii. Ogle, 128 Tunney v. Midland E. C, 70d Ixxiv TABLE OF CASES. Tannicliffe v. Moss, 761 Tapper v. Foulkes, 271 Turley v. Bates, 404, 405, 416 Turner v. Ambler, 743 — V. Berry, 62 — V. Cameron's Coalbrook Steam Coal Co., 777 — ». Daries, 211, 312 — V. Evans, 370 — V. Ford, 809 — V. Hardcastle, 854 — V. Hardey, 615 — V. Harvey, 338 V. Hawkins, 117 — V. Hayden, 467 — V. Kendal (Mayor of), 239, 541 — V. Mason, 332 — V. Stones, 483 — V. Liverpool Docks (Trustees of), 123, 499 — V. Walker, 95 Turney v. Dodwell, 185, 488, 489 Turnley v. Maogregor, 391 Tuson V. Evans, 748 Tweddle v. Atkinson, 130, 317, S20 Tweed v. Mills, 818 Twopenny v. Young, 281, 282 Twyman v. Knowles; 90, 854 Twyne's case, 294 Tyerman v. Smith, 843 Tyler v. Jones, 134 Tyne &c. Com. v. Gfen. Steam Nav. Co., 692 Tyrrell-f. Woolley, 555 Tyson D. Smith, 11, 14 Udell V. Atherton, 340, 342, 544 Underbill v. Devereux, 203 — V. Ellicombe, 670 Underwood «. Hewson, 684, 938 Upton V, Townend, 221 Unwin V. Clarke, 634 U. S. V. M'Glue, 888 V. Valpy V. Gibson, 400, 804 — V. Oakeley, 631 — V. Sanders, 806 Van Baggen v. Baines, 508 Van Casteel v. Booker, 499 Vandenburgh v. Spooner, 422 — V. Truax, 97 Van der Donckt v. Thellusson, 480 Vane v. Cobbold, 344 Vanquelin 1). Bouard, 268 Van Sandau, ExpaHe, 730 — V. Turner, 730 Vansittart v. Taylor, 46 Van Toll v. Chapman, 124, 846 — V. South Eastern K. C, 836 Van Wart v. WooUey, 89 Varney v. Hickman, 173 Vasie v. Delaval, 206 Vaughan v. Hancock, 393 — V. Matthews, 613 — V. Taff Vale B. C, 656, 690 Vaux V. Sheffer, 688 Veitch V. Eussell, 327 Veley v. Burder, 228 Venables». East India Co., 135, 616 Vere v. Ashby, 553, 560 Verney v, Dord, 255 Vernon ?;. Smith, 277 Vertue v. East Anglian K. C.,.440 Vicars v. Wilcocks, 95, 96 Victors V. Davies, 309 Villeboisnet v. Tobin, 193 Vine V. Saunders, 144 Violett V. Sympson, 744 Vivian v. Champion, 637 Vlierboom v. Chapman, 535 VoUans v. Fletcher, 305 Vose V. Lancashire and Yorkshire K. C, 708 W Wade V. Simeon, 662 Wade's case, 178 Wadsworth v. Bentley, 760 — V. Spain (Queen), 69, 234 Wagner v. Imbiie, 190 Wain V. Bailey, 496 — V. Warlters, 382, 387 Wait V. Baker, 402, 405, 499 — V. North Eastern E. C, 690 Waite V. Gale, 614 — V. Jones, 357 Waithman v. Wakefield, 600 Wake V. Harrop, 378 — V. Tinkler, 540 Wakefield v. Newbon, 610 Wakeley v. Teesdale, 155 Wakeman v. Robinson, 690 Wakley v. Cooke, 244, 745 — V. Froggett, 189 — V. Healey, 746 Walesby v. Goulston, 62 Walker v. Bartlett, 254, 394 — V. British Guarantee Associa- tion (The), 820 — V. Broadhurst, 625 — V. Brogden, 164, 745 — V. Butler, 186 TABLE OF CASES, Ixxv "Walker V. Clyde, 127, 802 — V. Gtoe, 95, 659, 862 — V. Great Western R. C, 533 — V. Hatton, 646 — V. HiU, 388 — V. Hunter, 509, 704 — V. M'Donald, 460 — V. Medland, 153 — V. Moore, 639 — V. Nussey, 419 — V. Olding, 730 — v. Perkins, 297, 371 — 11. York and North Midland K. C, 832, 833 Wallace v. Breeda, 404 WaUer v. Drakeford, 127, 142, 430, 593, 843 — V. South Eastern R. C, 713 Walley v. M'Connell, 730 Walliau Day, -296, 369 — ■». Littell, 376 — V. Swinburne, 312 Walmsley v. Cooper, 636 — ■». Milne, 396, 800 Walsh V. India (Secretary of State of), 622 — u. lonides, 157 — V. Sonthworth, 177 "Walahe v. Provan, 64, 558 Walstab v. Spottiswoode, 347, 570 Walter v. Selfe, 720 — V. Smith, 817 Walton V. Mascall, 456 Wankford v. Wankford, 612, 616 Wanstall v. Pooley, 95 Warburtonw. Great Western E. C, 713 — I". Loveland d. Ivie, 4 — V. Parke, 791 Ward (Lord) v. Lumley, 286, 492 — V. Andrews, 140 — V. Andland, 145 — V. Byrne, 370 — V. Evans, 474 — V. Lloyd, 364 — V. Londesborough (Lord), 348, 570 — V. Lowndes, 129 — V. Ward, 790 Warlow V. Hairiaon, 409, 423 Warman v. Halahan, 72 Warner, app., Riddiford, resp., 722 Warrington v. Early, 493 — ■;;. Leake, 150 Warwick ». Bruce, 395, 582 — V. Foulkes, 727, 855 — V. Rogers, 463 Wason V. Warlter, 754 Waterfall v. Penistone, 396 Waterford, &c. E. C. (The) i). Pid- cock, 500 Waterpark (Lord) v. Fenuell, 505 Waters v. Handley, 61 — ■». Towers, 411, 551, 632, 633, 645 Waterton v. Baker, 217 Watkins v. Clark, 180 — V. Great Northern E. C, 108, 670 — V. Hall, 758, 759 — V. Lee, 739 — V. Packman, 206 Watson V. Bodell, 730 — V. Charlemont (Earl), 291 — V. Lane, 430 — V. Macquire, 139, 140, 808 • — V. M'Lean, 852 — 1). Eussell, 322, 489 — V. Spratley, 394, 410 — V. Swan, 130 — V. Whitmore, 743 Watson's case, 246 Watts V. Ainsworth, 384 — ■». Friend, 395 — V. Porter, 846, 853 — V. Eees, 181, 614 — u. Salter, 348, 570 Waugh V. Middleton, 5, 7 Way V. Heame, 344 Weatherston v. Hawkins, 748 Weaver v. Bush, 686 — V. Lloyd, 746 — V. Ward, 176, 684, 687 Webb V. Adkins, 612 — V. Beavan, 220 — 0. Bird, 76, 791 — V. Cowdell, 613 — V. Fox, 574, 802 — V. Hill, 739 — V. Inwarda, 464 — V. Plummer, 514 — V. Portland Manfacturing Co., 92, 93, 94 — u. Ehodes, 135 — d, Spicer, 114 Webber v. Tivill, 184 Webster v. Kirk, 184 — V. Spenser, 135, 613 — V. Watts, 165 Weedon v. Woodbridge, 168, 724 Weeks v. Goode, 806 Weems v. Mathieson, 709, 710 Weeton v. Woodcock, 781 Welohmau v. Sturgis, 141, 613, 784 Welden v. Bridgwater, 778 Weller v. Baker, 97, 140, 142 Wellook V. Constantine, 102, 686 Wells V. Hopkins, 489 — V. Horton, 397 — V. Nurse, 596 Ixxvi TABLE OF CASES. Wella V. Watkins, 91 Welsh V. Hall, 778 ■Wenman v. Ash, 591, 751, 15i, 757 Wennall v. Adney, 313, 330 Wenbworth v. Cock, 298, 613 Werner 1). Humphreys, 613 West V. Baxendale, 725 — V. Blakeway, 300 — V. Jackson, 325 — v. Nibbs, 126, 784, 807 — V. West, 308 — V. Wheeler, 597 Westaway v. Frost, 745 Westhead v. Sproson, 307, 334 Westlake v. Adams, 317 West London R. C. v. London and North Western R. C, 274 Westoby v. Day, 20, 571 Weston V. Beeman, 741 Westropp V. Solomon, 313, 486, 487, 533, 818 Wetherall v. Jones, 357, 361 WethereU v. Julius, 573 Whalley v. Pepper, 739 Wharton v. Mackenzie, 588 Whatman v. Pearson. 698 Wheatley v. Boyd, 307 — V. Patrick, 698 Wheeler v. Bavidge, 166, 513 — V. Home, 124 — V. Montefiore, 777 — u. Whiting, 723 Wheelton v. Hardisty, 347 Whelpdale's case, 492 Whistler v. Forster, 462, 463 Whitaker v. Jackson, 266 Whitcomb v. Whiting, 185 White V. Bass, 782, 792 — V. Binstead, 239 — V. Bluett, 319 — V. Cohen, 720 — V, Crisp, 659 — V. Cuyler, 282, 547 — V. Garden, 335, 964 — V. .Great Western R. C, 833 — V. Greenish, 842 — V. Humphery, 680, 812 — V. Merritt, 681 — V. Morris, 139, 808 — V. Mullett, 127, 801 — V. North, 477 — V. PhiUips, 659, 671 — V. Procter, 423 — V. Spettigue, 103 — V. Watts, 239 — V. Wilks, 405 Whitehead v. Lord, 534 — V. Parkes, 795 — V. Tuckett, 632 — V. Walker, 452, 467 Whitehouse v. Fellowes, 186 Whiteley v. Adams, 747, 751 Whitfield V. South Eastern E. C, 695 Whittle V. Frankland, 306 Whitwell V. Perrin, 535 Whitworth v. Hall, 744 Wiokens ?;. Steel, 198 Wiokham v. Gatrill, 103 — V. Lee, 63 Widders, app., Gorton, resp., 495 Wieler v. Schilizzi, 351 Wiggett v. Fox, 708 Wigglesworth v. Dallison, 15, 512 Wigmore v. Jay, 708, 713, 716 Wilbraham v. Snow, 809 Wilby V. Elston, 761 Wild V. Holt, 861 Wilde V. Gibson, 340 — V. Sheridan, 46 — V. Waters, 127 Wilders v. Stevens, 636 Wiles V. Woodward, 292, 805 Wilkes, In re, 242 — V. Hungerford Market Co., 99 — V. Wood, 729, 855 Wilkin V. Hall, 761 — V. Maiming, 365 — V. Reed, 69, 198, 681 Wilkins v. Bromhead, 407 Wilkinson v. Anglo Californian, &c. Co., 130, 272, 500 — V. CandPsh, 536 — V. Evans, 420 — V. Fairrie, 671 — V. Giant, 322 — u. Howell, 739 — V. Johnson, 486 — V. Eirby, 266, 766, 773, 776 — V. Sharland, 166, 211 Wilks V. Back, 434, 547 Willans v. Taylor, 742 Willey V. Parratt, 305 Williams v. Archer, 123, 626 — V. Bayley, 284 — V. Beaumont, 140 • — V. Burgess, 417 — V. Burrell, 138, 278 — V. Byrnes, 324, 382, 421, 422 V. Carwardine, 32 4 — V. Chambers, 574 — V. Clough, 709 — V. Crosswell, 725 — V. Currie, 626, 855, 856 — V. Deacon, 536 — V. Earle, 277, 630 — V. Evans, 206, 632 — V. Everett, 322 — ". Germain, 459 TABLE OF CASES. Ixxvii Williams v. Glenster, 687 — ■;;. Great Western R. C, 205, 836 — V. Griffith, 185 — V. Grouoott, In re, 658, 871 — V. HoUand, 126 — V. James, 488, 489 — 0. Jones, 399, 680, 691, 809 — t>. Lake, 382, 699 — V. Millington, 139, 424, 838 — ■». Moor, 583, 584, 590 — V. Morris, 434 — V. Mostyn, 90 — V. Keg., 894 — V. Reynolds, 633, 645 — V. Kiehard, 688 — v: Roberts, 211 — V. Smiti, 7, 730, 731 — V. Swansea Harbour Trustees, 349 — V. Wteeler, 47 Williams's case, 101 Williamson V. Barton, 538 Willins®. Smith, 186, 690 WiUis, Be, 389 — it. Palmer, 535 Willison V. Pattison, 610 Willoughby v. Horridge, 822 Wills V. Murray, 298 — V. Nnrse, 133 Wilmer v. White, 573 WUmot o. Williams, 468 Wilmshurst v. Bowker, 405, 499 Wilsford V. Wood, 560 Wilson app., Cookson, resp., 257 — V. Barker, 702 — V. Barthrop, '540 — V. Bevan, 518 — V. Braddyll, 167, 431 — V. Brett, 812, 813 — V. Carzon (Viscount), 551, 569 — V. Cutting, 552 — V. Ford, 601 — V. Gabriel, 188 — V. Hart, 538 — 0. Hicks, 623 — V. Knubley, 298 — V. Lancashire and Yorkshire K. C, 645 — V. Lewis, 560 — V. Mackreth, 778 — V. Merry, 710, 713 — V. Newport Dock Co., 623, 645 — ■■;. Smyth, 600 — V. Swabey, 468 — 1}. Tumman, 704 — V. WiHes, 16 — V. Wilson, 48, 364 — V. Zulueta, 539, 545 Wilson's (Cams) case, 248 Wiltsheart). Cotterell, 396, 781 Winch V. Keeley, 571 — V. Winch, 67 Winsor v. Reg., 999 "Wing V. Mill, 313 Winship v. Hudspeth, 791 Winter v. Bartholomew, 239 Winterbottom v. Lord Derby, 99 — V. Wright, 677, 678, 709 Winterburn v. Brooks, 686 Wintle V. Crowther, 553 Wise V. Great Western R. C, 833 ■ Witham v. Lewis, 208 Witherley v. Regent's Canal Co., 658, 689, 715 Withers v. Parker, 704 Withington v. Herring, 458 Wontner v. Shairp, 291, 305, 344, 348, 570 Wood V. Bell, 135, 407, 631 — V. Boosey, 653 — V. Copper Miners' Co., 274, 306 — V. Curling, 165, 671 — V. Dunn, 240 — V. Fenwick, 584 — V. Lane, 722 — V. Leadbitter, 434, 686 — V, Morewood, 861 — V. Mytton, 476, 478 — V. Perry, 62 . — V. Priestner, 386 — V. Rowcliffe, 241 — V. Slack, 492 — V. Wand, 91, 795, 796 Woodbridge v. Spooner, 376 Woodcock V. Houldsworth, 470 Woodford v. Whiteley, 496 Woodgate v. Potts, 596 Woodgerw. Great Western R. C, 645 Woodhams v. Newman, 61, 62, 65 Woodin V. Burford, 540 Wooding V. Oxley, 723 Woodland v. Fear, 466, 486 Woodley v. Coventry, 404, 405 Woods V. Finnis, 126, 673 — V. Russell, 408 — V. Thiedemann, 463 Woodward v. Pell, 488 — 0. Walton, 849 — V. Watts, 5 Woolf ». The City Steamboat Co., 161 Woollen V. Wright, 705 Wootton V. Dawkins, 656 — 1). Steffenoni, 133 Workman v. Great Northern R. C, 853 Worth V. Gilling, 688 — V. Terrington, 687, 722 Woi'thington v. Sudlow, 430 — V. Warrington, 640 Ixxviii TABLE OF CASES. Worthington v. Wigley, 191 Wray v. Milestone, 562 Wright V. Colls, 320 — V. Crookes, 344, 704 — V. DaoDah, 424 — V. Gi-eenroyd, 7 — o. Hickling, 378 — V. Howard, 794 — V. Leonard, 591, 596, 843 — ■». Mills, 204 — V. Reg., 894 ^ V. Stavert, 393 — V. Wilson, 722 — V. Woodgate, 749 Wrightup V. Chamberlain, 646 Wyatt V. Great Western E. C, 689 — V. Harrison, 83 — «. White, 743 Wyld V. Hopkins, 630, 569 — V. Pickford, 828 Xenos V. Wickham, 271, ii72 T. Yates V. Dunster, 637 — V. Eastwood, 120, 126 Tates i>. Freckleton, 321 _ V. Nash, 443, 477 Yearsley v. Heane, 730 Teatman v. Dempsey, 662 York (Dean of), Be, 232 York, Newcastle, and Berwick K. C. v. Crisp, 832, 833 York's case, 889 Yorston v. Fether, 612, 785 Youlton V. Hall, 148 Young V. Beck, 191 — V. Billiter, 208, 335 — -ii. Cole, 486 — V. Davis, 100, 108 — V. Grote, 456, 465 — 0. Hiohens, 139 — i). Hughes, 439, 440 — -v. Macrae, 762 — V. Matthews, 406 — V. Pridd, 847 — V. Kaincook, 292 — V. Spencer, 781 — V. Tummins, 368 — V. Wand, 858 Z. Zohrab v. Smith, 234 Zonch V. Parsons, 585 Zwilohenbart v. Henderson, 498 COMMENTAKIES THE COMMON LAW. BOOK I. LEGAL EIGHTS AND REMEDIES. J.N this Book an inquiry has been instituted into the nature of Legal Rights and Remedies, that is, of rights which may be investigated, and remedies which may be applied, in Courts of Law. During the prosecution of this inquiry, I have, indeed, diverged occasionally from the direct road, in order that some collateral matters of interest and importance might be, — if not considered with the attention which they deserve, — at all events, suggested for further examination, and partially explained. I have commenced with a definition and a concise state- ment of the component elements of Common Law. I have then proceeded to sketch out the history of our Superior Courts of law, to define the actual boundaries of their juris- diction, and to offer some remarks touching their constitu- tion, and generally as to the mode in which business is conducted in them. With a view to rendering this part of my subject more complete, I have in a separate section briefly iadicated the extent of jurisdiction exercised by the County Courts. In the Third Chapter of this Book I have examined at some length the characteristics of actionable wrongs or in- f3 LEGAL RIGHTS AND REMEDIES. juries ; I have explained their nature, and shown how a line may be drawn, separating apparent and primd facie merely from real rights of action. I have, moreover, pointed out various classes of cases in which our law, influenced by weighty considerations, declines to give redress, even though positive damage has been caused to an individual by the tortious act or negligence of another. It may be well to add, with reference to this part of my subject, that a classification of rights of action, more minute and philosophical than has been here thought necessary, will be attempted, when I come to treat, in the Second and Third Books of this work, of Contracts and of Torts respectively. I conceive it to be essential, however, at the very outset of Commentaries, how- ever elementary, upon our Common Law, to give some idea of the nature of a legal injury and of a right of action, and to afford some insight into the principles which affect it. The Fourth Chapter of this Book has been devoted to a view of the Proceedings in an Action at Law, from the first issuing of the writ of summons down to final judgment and execution thereupon, together with a notice of the mode of Procedure in the County Courts ; and in the Fifth and con- cluding Chapter, I have inquired concerning the nature and applicability of those Extraordinary Eemedies which are sometimes afforded by our law in lieu of, concun-ently with, or in addition to, Redress by Action. CHAPTER I. COMMON LAW — WHAT — OF WHAT ELEMENTS COMPOSED. Municipal Law in its highest and widest sense comprises Municipal all those rules, written or traditionary, which have been laid down for the guidance of the community, and to which its members must, if they would avoid penal consequences or civil liabilities, more or less stringently devised, necessarily conform. The word " law," indeed, ex vi termini, implies a sanc- tion (a). Laws must be imposed by some adequate power (b), and in civilised communities, at all events, they are in theory certain and determinate, for misera est servitus ubi jus est vagum, aut incertum (c). According to a well-known defi- nition, municipal law is, in such communities, " a rule of civil conduct prescribed by the supreme power in a state com- manding what is right, and prohibiting what is wrong " (d). The term " common law " will be used in this volume to common law. signify that particular portion of municipal law which is administered by the common law tribunals. It is composed of two elements or materials, the lex scripta, and the lex non scripta. The lex scripta comprises the statute law of the land, the Lex scripta ■^ ^ \ —how con- duty of interpreting which devolves upon the Judges (e), who strued. (a) "Law" is defined as "anything tatis est, Tocaturqne jus civile, quasi laid down, so. as a rule of action ; a jua propriiuu ipsius civitatis. I. 1. 2. rule imposed, fixed, or established, de- 1. ; Dig. 1. 1. 9. creed or determined :" Richardson Diet. (c) 4 Inst. 246. advoc. (d) 1 Bla. Com. 44 (5) Quod quisque popnlus ipse sibi (e) See per Eyre, 0. J. , B. v. Tooke, jus constituit, id ipsius proprium civi- 25 How, St. Tr. 726. B 2 COMMON LAW — WHAT — are guided in such interpretation by various recognised rules or canons of construction, of which the primary, or, as it has been called, the " golden " rule, has been thus expressed— " to give to all the words of an Act of Parliament their plain and ordinary meaning, unless such a construction leads to absurdity or injustice " (/) ; and thus, " to give to the words used by the legislature their plain and natural meaning, unless it is manifest, from the general scope and intention of the statute, injustice and absurdity would result from so con- struing them " (g). The rule, says Parke, B., in Perry v. Skinner (h), by which the Court is to be guided in construing Acts of Parliament, is to look at the precise words used, and to construe them in then- ordinary sense, unless this construction would lead to any absurdity or manifest injustice ; and if it should, so to vary and modify the words as to avoid that which it cer- tainly could not have been the intention of the legislature to effect (i). So, in Miller v. Salomons (k), we find the same learned judge observing, that " words which are plain enough in their ordinary sense may, when they would involve any ab- surdity, or inconsistency, or repugnance to the clear intention of the legislature, to be collected from the whole of the Act or Acts in pari materid to be construed with it, or other legitimate grounds of interpretation, be modified or altered so as to avoid that absurdity, inconsistency, or repugnance, but no further ; " for then the Court may predicate that the words never could have been used by the framers of (/) Per Jervis, C. J., Castrigue v. Eastern Counties R. C. v. Mm-riage, Page, 13 0. B. 463-4 ; Judgm., Mac- 9 H. L. Ca. 32 ; S. O., 2 H. &. N. 625. dougall v. Paterson, 11 0. B. 769. (h) 2 M. & W. 476. ig) Per Jervis, C. J., Mattison v. (i) Adopted per WiUimna, J., Mid- Hart, 14 C. B. 385 ; per Burton, J., Und R. C, app., Pye, resp., 10 C. B., Wa/rimton v. Lovdand d. line, 1 N. S., 194. Huds. & Br. 648 ; per Maule, J., (jfc) 7 Exoh. 546. Gelher y. Oa^er, 15 C. B. 706. See OF WHAT ELEMENTS COMPOSED. the law in their ordinary sense, and the strict grammatical construction will bend to the obvious intention of the legislatm-e (I). It would seem, however, according to some authorities, that the appUcation of this rule must be confined to cases where the " incongruity " or " absurdity " in question arises manifestly within the particular enactment (m), ex. gr., so as to render it nugatory or self-contradictory; and that the Court cannot construe plain and unambiguous words in other than their Hteral and ordinary sense, merely because, in their opinion, such a construction may lead to " an absurdity," or even to "manifest injustice" (n), though it is admitted that " words may be modified or varied where their import is doubtful or obscure " (o). The embarrassment often experienced in applying the "golden" rule for the interpretation of Acts of Parliament results, of course, from the difficulty of keeping within the line which, under our administrative system, sepai'ates the office of declariTig the law from that of making it. In theory, the distinction just adverted to is clear and well marked ; in practice, it is difficult to observe, — jvdicis est jvs dicere, non jus dare. It is the province of the statesman, not of the lawyer, to discuss, and of the legislature to deter- mine, what is best for the public good, and to provide for it by proper enactments. It is the province of the Judge to expound the law only : the written, from the statutes ; the unwritten law, from the decisions of his predecessors and of the existing Courts, or from text writers of acknowledged authority, and upon the principles to be clearly deduced from (l) See also per PoUocJc, C. B., tnqueY. Page, supra. . Middleton, 8 Exch. 357 ; (n) See Judgm., AUey v. Bale, 11 per Maule, J., Arnold v. Sidge, 13 C. B. 390, -with which ace. per Cromp- C. B. 763; per Ma/rtin, K, Att.-Qen. ton, J., Woodward v. Watts, 2 E. & T. HaUett, ^H. & N. 374 ; per Lord B. 458. See also per Lord Denman, a, C. J., 8 E. & B. 875-6. C. J., Ch-een v. Wood, 7 Q. B. 185. (m) Seiviie -pei Jervis, C. J., Oas- (o) Jndgm. , Alley \. Bale, sa^va,. COMMON LAW — WHAT — them by sound reason and just inference ; it is not, however, the duty of a Judge to speculate upon what may be most in his opinion for the advantage of the community (|>). With a view to ascertaining the intention of the legisla- ture in framing the provisions of a statute, our Judges are guided, as before said, by recognised rules, some of the more important of which are specified in Heydon's case (q), to the following purport and effect : — that in all statutes, be they penal or beneficial, restricting or enlarging of the common law, four things are to be considered, viz. 1. What was the common law before the making of the Act (r) ; 2. What was the mischief and defect against which the common law did not provide ; 3. What remedy the Parliament hath resolved and applied to cure the disease of the commonwealth ; and, 4. The true reason of the remedy (s). And, having satisfied themselves with reference to these various points, it is the duty of the Judges to make such construction as shall " sup- press the mischief and advance the remedy (t), putting down all subtle inventions and evasions for continuance of the (j>) Per Parke, B., Egerton v. Earl construction of law between insensible Brownlow, i H. L. Ca. 123. and disagreeing words, sentences, and (q) 3 Rep. 7; Chudleigh's case, 1 provisoes as they now do. " — 2Rep. Pref. Rep. 122 b. 123 a. These rules are ix. x. ; per Pollock, C. B., 2 Exch. explained and illustrated in Dwarr. 332. Stats., 2nd ed., 563 et seq. See also (s). The Court wiU therefore, when MUler r. Salomons, 7 Exch. 522 ; necessaiy, look at the preamble of the Judgm., Salhdd v. Johnson, 2 Exch. Act. Per Tindal, C. J., Sussex Peer- 273 ; per Coleridge, J., 11 Q. B. 579. age case, 11 C. & F. 143 ; per Sir /. {r) "If Acts of Parliament were Niclioll, Srett y. Brett, S Addams, 210 ; after the old fashion, penned, &c., by Stowel v. Lm-dZowch, Plowd. 369 ; per such only as knew what the common Buller, J., Crespigny v. Witteno'om, i law was before the making of any Act T. R. 790. The title of an Act has of ParUament concerning that matter, occasionaUy been referred to as aiding as also how far forth former Statutes in its construction ; but " it is certainly had provided remedies for former mis- no part of the law, and, in strictness chiefs and defects discovered by expe- ought not to be taken into consideration rience ; then should very few questions at aU." Judgm., 2 Exch. 283. See also in law arise, and the learned should not The Shrewshmy Peerage case, 7 H. L. so often and so much perplex their Ca. 1 ; 16 How. St. Tr. 743 n. heads to make atonement and peace by (t) See per Parke, B., 2 Exch. 273. OF WHAT ELEMENTS COMPOSED. mischief, et pro privato commodo ; and adding force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publico." To the rules just stated, one other, by reason of its great practical importance, may here properly be added, viz. that a statute must in general, on principles of obvious convenience and justice, be construed as prospective, and not as retrospec- tive, in its operation ; it must be considered as intended to regulate the future conduct of persons, and not to apply to past transactions. But even this elementary rule is one of construction only, and wiU yield to the intention of the legis- lature if sufficiently expressed (u). The lex non scripta is an unwritten law, comprising those Lex non principles, usages, and rules of conduct, applicable to the government and security of person and property which do not depend for their authority upon any existing express and positive declaration of the will of the legislature. It com- prises, and mainly consists of, " customs," whether general or particular, and is often caUed the " customary law " (x). These customs date from a remote antiquity (y), and are in some instances believed to have originated from Acts of the, legislature of which no trace or record now remains. It has, («) Ver ParhejK, Moonr. Dv/rden, Stats., 2tid ed., chap. 9. See, also, 2 Exch. 22, 43; Kimlray v. Draper, Leg. Max., 4th ed., Index, tit. "Sta- L. E. 3 Q. B. 160 ; WiUiaTtis r. Smith, tutes ; " Wright v. Greemroyd, 1 B. & 4 H. & N. 559, 563, 564 ; per Brie, S. 758. C. J., Midland JR. C, app., Pye, (x) "A general immemorial usage resp., 10 C. B., N. S. 191 ; Jachsonv. not inconsistent with any statute, espe- WooUey, 8 E. & B. 778, 784 ; per oially if it be the result of evident Bolfe,B., Att.-Oen. \. Marquis of ffert- necessity, and withal tendeth to the ford, 3 Exch. 687 ; Pettamberdass v. puhiio safety, is, I apprehend, part of Thackom-seydass, 7 Moo. 'F.O.Cas. 289; the Common Law of England." Per Waugh v. Middleton, 8 Exch. 352; Foster, J., R. v. Broadfoot, 18 How. Beg. V. Leeds and Bradford JR. C, St. Tr. 1331. 18 Q. B. 343 ; per Ld. Carni/pbell, C. J., (y) " The law and custom of Eng- Lea/ry v. Patrick, 15 Q. B. 271. The land is the inheritance of the subject. General Eules relating to the Construe- which he cannot be deprived of without tion of Statutes are collected in Dwarr. his assent in Parliament." 12 Eep. 29. 8 COMMON LAW — WHAT — therefore, been justly said, that the lex non scripta consists of those rules and maxims concerning the persons and pro- perty of men which have obtained by the tacit assent and usage of the inhabitants of this country, and have the same force and authority as Acts of Parliament ; the only difference between the two being, that the consent and approbation of the people with respect to the one is signified by their im- memorial use and practice, whereas their approbation of, and consent to, the other, is declared by Parliament, to whose enactments every member of the community is considered as virtually a party (z). Although, in all probability, it is only partially true, that our customary or unwiitten law flows from the express act or sanction of the supreme power, yet it may be curious to re- mark that something very similar, or, at all events, analogous to such a mode of derivation, has actually occurred almost within living memory in the United States of America, where it is an established doctrine, that English statutes passed prior to the Declaration of Independence, or, at all events, to the emigi'ation of the forefathers of the American people, so far as applicable to their institutions, must be taken to con- stitute a part of the common law of that realm (a). This proposition has been broadly laid down by some of the most eminent judges of the United States, and will serve to illus- trate the manner in which the statute law, or lex scripta, of a country, though ceasing to be operative as such, may bec6me blended with, or even form an integral and ascer- tainable portion of, its unwi-itten law. General ous- Customs, as already intimated (b), may be either general ""■ or particular. As referable to general customs, properly so called, may be specified that rule of law which settles the course in which lands descend by inheritance; that rule («) 1 Eeeves, Hist. Eng. Law, 2nd (a) I Kent, Com., 10th ed., 535, ed- 2. and note thereto. (i) Ante, p. 7. OF WHAT ELEMENTS COMPOSED, ■which prescribes the solemnities and obligation of con- tracts (c) ; which declares the principles applicable to the ex- pounding of wills, deeds, and Acts of Parliament ; which indicates the respective remedies for civil injuries. Doctrines such as these are not set down in any written statute or ordinance, but depend merely upon immemorial usage for their support. It is here to be observed, on the one hand, that the lex non scripta might, in some imaginable cases, control the statute law, as if that law were against common right and reason, or repugnant or impossible to be performed (d). And, on the other hand, it is noticeable that our customary law wiU, in many cases, nullify the acts and contracts of indi- •viduals, and will even interfere with the dispositions which they may make of their private property. "A man," for instance, " cannot alter the usual line of descent by a creation of his own" (e). He cannot give an estate in fee simple to a person and his heirs on the maternal side, because the law has already said how a fee simple estate shall descend. In this case, the law does not allow of a capricious disposition of property, and still less will it sanction the attaching of any condition to property which is against the public good. Thus, a case occurs in the old books of a man making a condition that his devisee should not cultivate his arable land ; which is void, because it is against the prosperity of the country, and for no other reason (e). But although the law of England will not allow a man to indulge in every fanciful disposition of his property, it wiU allow him to put his estates in settlement for the purpose of providing for those who are to come after him, and, in doing so, it gives (c) As to tie otligatory force of con- Exeter, 5 Exch. 671 ; Dwarr. Stats. , tracts, post, Book II., Chap. 1. Snd ed., 480-4. (d) Br. Bonham's case, 8 Rep. 118 (c) Per Lord St. Leoruwds, Egerton a ; per Best, J., Fortes v. Oockrcme, 2 t. Earl Brownlow, 4 H. L. Ca. 241. B, & C. 471 ; Arg., Gorham v. Bp. of 18 COMMON LAW— WHAT - him all the rational power of disposition which he can reasonably desire. Even upon the power of disposition by- settlement, it will, however, impose such limits and restraints as are required by considerations having reference to the public good : the principles which govern its decisions upon this subject being embodied in the maxim, Sic wtere tuo ut alienum non Icsdas (which applies to the public in at least as full force as to individuals), and in the equally expressive maxims. Nihil quod est inconveniens est licitum, and Salvia reipuhliccB suprema lex (/). cSortT'^ Conspicuous amongst general customs stands the lex mer- catoria, or law merchant (g), a branch of law deduced from the practice and customs of merchants, aided and regulated by a long series of judicial decisions, as also by the express enactments of the legislature, which has, especially of late years, exercised much vigilance in aiding fair commercial enterprise on the one hand, and in checking undue specu- lation on the other. To evidence of mercantile custom, which, when established and shown to prevail generally (h), becomes part of our common law, much weight is attached in courts of justice ; and in illustration of this remark, a reference to Bellam/y v. Marjoribanks (i), which involved an important question as to the precise effect of crossing a cheque, may suffice. At the trial of that case (as appears from the Eeport), some of the most eminent bankers, and the most experienced bankers' clerks in London, were examined as to the existence of a particular custom alleged by the plaintiff in his declaration, and denied by the defendant; and the Court, in adjudicating upon a motion for a new trial on the ground, inter alia, that (/) See per Lord Truro, i H. L Ca. prevalent in particular places, post, 195. p. 19. (ff) As to which see Earn, Sci. Leg. (i) 7 Exch. 389. As to the existing Judgm. Chap. 8 ; 8 0. B. 967, note law with reference to crossed cheques, («)• post. Book 11., Chap. 3. (h) As to customs or usages of trade OF WHAT ELEMENTS COMPOSED. 11 the vierdict was against evidence, admitted that a custom such as that contended for would be binding and obligatory upon bankers, if proved ; and that it might be proved " by a long, well-known, acknowledged, and universal usage and practice amongst bankers to act in accordance with it." So, in Branddo v. Barnett (Jc), Lord Gamfbell remarks, that "the general lien of bankers is part of the law merchant, and is to be judicially noticed, like the negotiability of bills of exchange, or the days of grace allowed for their payment. When a general usage has been judicially ascertained and established, it becomes part of the law merchant, which courts of justice are bound to know and recognise. Such has been the invariable understanding and practice in West- minster Hall for a great many years ; there is no decision or dictum to the contrary; and justice could not be administered if evidence were to be given toties quoties to support such usages, an issue being joined upon them in each particular case " (Z). A particular or local custom may be defined to be an usage Particular which has obtamed the force of law, and is, m truth, the customs. blading law within a particular district, or at a particular place, of the persons and things which it concerns " (m). A custom, therefore, in so far as it extends, supersedes the general law (n). Such is the custom of gavelkind in Kent and some other parts of the kingdom, which ordains, among other things, that not the eldest son only of the father shall succeed to his inheritance, but all the sons alike ; and that, though the ancestor be attainted and hanged, yet the heir shall succeed (i) 3 C. B. 519, 530 ; S. C, 12 C. (m) Judgm., Tyson v. Smith, 9 Ad. & F. 787 ; per^esi, C. J., 5 Bing. 164. & E. 421 ; per Yatee, J., MUlm- v. (Z) Cited per Byles, J., Mare v. Taylor, 2 Burr. 2368. Menty, 10 C. B., N. S., 85. (n) Judgm., ZordFalmoutAy. George, As to the lien of a wharfinger, see 5 Bing. 293. Dresser v. Bosanguet, 4 B. & S., 460. 12 COMMON LAW— WHAT — to his estate without any escheat to the lord. Such is the custom which prevails in divers ancient boroughs, and there- fore called borough-English, that the youngest son shall inherit the estate in preference to all his elder brothers (o) . Such is the custom in other boroughs, that a widow shall be entitled for her dower to all her husband's lands, whereas at the common law she shall be endowed of one-third part only. Such also, are the special and particular customs of manors, of which every one has more or less, and which bind all the copyhold and customary tenants who hold of the said manors {p). Now all these, and similar special customs, being deviations from the general law of the land, are good only by virtue of long-continued usage and of that consent, on the part of such portions of the community as are more immediately affected by them, which is to be implied therefrom. wiiM^Tt 1- -^ custom, therefore, says Sir W. Blackstone, in order dates, &0. ^^^ ^^ ^^^^ -^^ legal and binding, must " have been used so long that the memory of man runneth not to the contrary ; so that, if any one can shew the beginning of it, it is no good custom. For which reason no custom can prevail against an express Act of Parliament, since the statute itself is a proof of a time when such a custom did not exist " {g). Now, legal memory dates from the 1st year of the reign of Eichai-d I. ; but it must not, therefore, be supposed that it was, even prior to the stat. 2 & 3 Will. 4, c. 71, in all cases necessary to produce evidence extending over so long a period, of the existence of a particular custom in dispute. From proof of the enjoyment of a custom for a much less period, ex. gr., for so short a time as twenty years, a jury has, in the (o) See MugglOon y. Barnett (in Walker, 2 B. & C. 827 ; per Lord Error), 2 H. & N. 653 ; S. C.,1 Id. Cranvm-th, Marquis of Salisbm-y v. 282. Gladstone, 9 H. L. Ca. 701, cited ip) See per Coclcbwrn, C. J., Mug- L. R. 2 C. P. 77. gleton v. Barnett, 2 H. & N. 681. As (g) 1 Bla. Com. 76. to manorial customs,, see Richardson t. OF WHAT ELEMENTS COMPOSED. 13 absence of evidence to the contrary, been held justified in finding that the custom had existed immemorially (r). And now, where a claim "may be lawfully made " at the common law, by custom^ prescription (s), or grant, to any right of common, or other profit or benefit to be taken and enjoyed from or upon " the land of any person," or " to any way or other easement, or to any watercourse, or the use of any water to be enjoyed or derived " upon or from the land of any person, reference wUl have to be made to the 1st and 2nd sects, (t) respectively of the statute just mentioned, which was passed with a view to " shortening the time of prescription in certain cases " 2. A custom must have been continued; because "any custom interruption would cause a temporary ceasing ; the revival been con- gives it a new beginning, which will be within time of memory, and, thereupon, the custom will be void. But this must be understood with regard to an interruption of the right; for an interruption of the possession only for ten or twenty years will not destroy the custom. As, if the inhabi- tants of a parish have a customary right of watering their cattle at a certain pool, the custom is not destroyed though they do not use it for ten years, it only becomes more difficult to prove ; but if the right be anyhow discontinued for a day, the custom is quite at an end " (u). Where a custom has been thus " continued " in the sense above assigned to that term, it, in fact, comes at last to an agreement which has been evidenced by such repeated acts (r) Jenkms v. Harvey, 1 Cr. M. & that S. and his ancestors, or those whose E. 877 ; cited Master Pilots, iSic, of estate he has, have used time out of Newcastle-v{pon-Tyne v. BraMey, 21 mind to enjoy a particular advantage or L. J., Q. B., 196 ; 8. C, 2 E. & B. privilege : 2 Bla. Com. 263; per Car., 428 n. ; R. v. Joliffe, 2 B. & C. 54. Mayor of Lynn Regis tt. Taylor, Zhev. See also Diike of Beamfort v. Smith, 4 160. Bxoh. 450. (f) As to which see Mr. Shelford's («) Custom is a local usage not notes in his ed. (7th) of the Real Prop, annexed to any person, whereas pre- Stats., pp. 2, 6. seription is merely a personal usage, as («) 1 Bla. Com. 77. reasonable. 14 COMMON LAW — WHAT — of assent on both sides from the earliest times, beginning before the time of memory, and continuing down to our own times, that it has become the law of the particular place wherein it has been shown to obtain (x). — andpeaoe- 3. A Valid custom must have been peaceable, and acqui' ably en- ^ ^ _ ^ ^ joyed. esced in, not subject to contention and dispute ; for, as such a custom derives its force and authority from common consent, the fact of its having been immemorially disputed, either at law or otherwise, would be a proof that such consent was wanting {y). mvSt'be ^- -^ custom must be reasonable, or, rather, it must not be unreasonable (z). " A custom," therefore, " may be good, though the particular reason of it cannot be assigned, for it sufficeth, if no good legal reason can be assigned against it. Thus, a custom in a parish that no man shall put his beast into the common till the 3rd of October would be good ; and yet it would be hard to shew the reason why that day in particular is fixed upon, rather than the day before or after. But a custom that no cattle shall be put in till the lord of the manor has first put in his is unreasonable, and, there- fore, bad : for, peradventure, the lord will never put in his, and then the tenants will lose all their profits " (a). A custom, however, is not unreasonable, merely because it is contrary to a particular maxim or rule of the common law, for Gonsuetudo ex certd causd rationabili usitata privat communem legem, as the customs of gavelkind and borough- English, which are directly contrary to the law of descent ; or, again, the custom of Kent, which is contrary to the law of escheat (&). Nor is a custom unreasonable because it is prejudicial to the interests of a private man, if it be for the (x) Judgm. , Tyson y. Smith, 9 Ad. & 96. E' ^25. (a.) 1 Bla. Com. 77 ; and cases ((/) 1 Bla. Com. 77. supra. (2) Id. Nix V. Gardiner, 2 Bulstr. (5) Ante, p. 11. 195 ; Sowerby v. Coleman, L. R. 2 Ex. OF WHAT ELEMENTS COMPOSED. 15 benefit of the commonwealth : as the custom to turn the plough upon the headland of another, in favour of husbandry, or to dry nets on the land of another, in favour of fishing, and for the benefit of navigation (c) ; or to take water from his IV ell (d). It is not an unreasonable custom that a tenant (e), who is bound to use a farm in a good and tenantable manner, and according to the rules of good husbandry, shall be at liberty, on quitting the farm, to charge his landlord with a portion of the expenses of draining land which requires draining ac- cording to good husbandry, though the drainage be done without his landlord's knowledge or consent (/). And a custom that a tenant shall have the waygoing crop after the expiration of his term, is reasonable and good. " It is just ; for he who sows ought to reap ; and it is for the benefit and encouragement of agriculttire. It is, indeed, against the general rule of law concerning emblements, which are not allowed to tenants who know when their term is to cease, because it is held to be their fault or folly to have sown when they knew their interest would expire before they could reap. But the custom of a particular place may rectify what otherwise would be imprudence or folly " (g). In The Marquis of Salisbury v. Gladstone (h), a custom was held not unreasonable for the copyholders of inheritance in a manor without licence from the lord to dig and get (c) Judgm. , Tyson t. Smith, 9 Ad. & B. 701 ; commented on and followed in E. 421 ; Lord FaJmwuth v. George, 5 Blackett v. Bradley, IB. & S. 940, Bing. 286. 954-5 ; Rogers r. Brenton, 10 Q. B. (d) Race t. Ward, 4 E. & B. 702. 26 ; Elwood y. Bullock, 6 Q. B. 383 ; (e) As to customs of the country af- Gibis t. Flight, 3 C. B. 581 ; Reg. v. fecting the relation of landlord and DaUry, 3 Q. B. 602 ; Le Case de Ta- tenant, post, p.l9. nistry, Dayys, 28 h, 34. (/) Mousley t. Zmdlam, 21 L. J. , (g) Wigglesworth v. Ballison, Dougl. Q. B., 64 ; Oalhy v. Hirst, 1 B. & B. 201. 224. With reference to the reason- (h) 6 H. & N. 123 ; 5". C, 9 H. L. ableness of particular alleged customs, Ca. 692 ; followed in Blewett, app., see also Mounsey v. Ismay, 1 H. & C. Jenkins, resp., 12 C. B., N. S., 16, 30. 729 ; Hilton v. Barl Granville, 5 Q. certain. 16 COMMON LAW — WHAT — clay without limit in and from their copyhold tenements, for the purpose of making bricks to be sold off the manor. must°to~ 5- -^ custom ought to be certain. And, therefore, a custom that lands shall descend to the most worthy of the owner's blood, is void ; for how shall this worth be deter- mined 1 But a custom that lands shall descend to the next male of the blood exclusive of females, is certain, and there- fore good. So a custom to pay twopence an acre in lieu of tithes is good ; but to pay sometimes twopence, and some- times threepence, as the occupier of the land pleases, is bad, for its uncertainty (i). On the gi-ound of uncertainty the following custom was held bad : viz., for all the customary tenants of a manor, having gardens, parcels of their tenements, to dig, take, and carry away from a waste within the manor, " for the purpose of making and repairing grassplots in the gardens, parcels of the same respectively, for the improvement thereof, such turf covered with grass fit for the pasture of cattle, as hath been fit and proper to be so used and spent every year, at all times in the year, as often and in such quantity as occasion " may require (fc). "A custom," said Lord Mlenborough, C. J., with reference to this case, "however ancient, must not be indefinite and uncertain; and here it is not defined what sort of improvement the custom extends to." And he added, — " there is nothing to restrain the tenants from taking the whole of the turbary of the common, and destroying the pasture altogether. A custom of this description ought to have some limit; but here there is no limitation to the custom as laid but caprice and fancy " (T). But a custom to pay a year's improved value by way of fine on a copyhold (i) 1 Bla. Com. 78 ; Le case de Ta- B. 415 ; BaUey v. Stephens, 12 C. B., nisti-y, Davys, 28 b, 35 ; Bleviett r. N. S., 91 ; Constable v. Nicholson, 14 Tregonning,Z M.&-E.55i. C. B., N. S., 230; Douglas, app., (i) WUsonv. WUles, 1 East, 121. Earl Dysart, resp., 10 C. B. N. S. (Z) See also Clayton v. Corhy, 5 Q. 688. OF WHAT ELEMENTS COMPOSED. 17 estate might be goodj thougti the value is a thing uncertain ; for it may at any time be ascertained, and the maxim of law is, Id certum est quod eertum reddi potest (m). In Broadbent v. Wills (n), we have an instance of a jh-oadient custom being held void on the twofold ground that it was unreasonable and uncertain. There the custom claimed (so far as it need here be stated), was, that when and as often as the lord of the manor, or his tenants of the collieries or coal- mines, sunk pits in certain freehold lands within and parcel of the said manor, for the working of the said pits, and to get coals thereout, the lord and his tenants might cast the earth, stones, &c., coming therefrom, in heaps " on the land near to such pits," "there to remain and continue" at "his and their will and pleasure : " in giving judgment with refe- rence to the validity of this custom, Willes, C. J., remarks, " The objection that this custom is only beneficial to the lord, and greatly prejudicial to the tenants, is, we think, of no weight ; for it might have a reasonable commencement, notwithstanding, for the lord might take less for the land on the account of this disadvantage to his tenant. But the true objections to this custom are, that it is uncertain, and, like- wise, unreasonable, as it may deprive the tenant of the whole benefit of the land ; and it cannot be presumed that the tenant at first would come into such an agreement." He also remarks, that every custom " must be certain, for two plain reasons : 1st, because, if it be not certain, it cannot be proved to have been time out of mind, for how can anything be said to have been time out of mind when it is not certain what it is ? 2ndly, it must be certain, because every custom presupposes a grant, and if a grant be not certain it is void." The Chief Justice then observes that, tested by the foregoing rule, the custom above set out is bad, as being neither (m) 1 Bla. Com. 78 ; Leg. Max., 4tli 1 Wils. 63 ; 2 Str. 1224 ; -with wliich ed., 599. compare Rogers v. Taylor, 1 H. & N. [n) Willes, 360 ; S. 0. (in Error), 706 ; Carlyon v. Loverin/j, W. 784. C 18 COMMON. LAW — ^WHAT — certain nor intelligible; especially by reason of the expression " near to " used in setting out the custom, to which expres- sion no precise and definite meaning can be attached. After thus pointing out the uncertainty of the alleged custom, Willes, C. J., proceeds to say, that all customs must be reasonable, otherwise they are void, "and certainly no custom can be more unreasonable than the present. It may deprive the tenant of the whole profits of the land ; for the lord or his tenants may dig coal-pits when and as often as they please ; and may, in such case, lay their coals, &c., on any part of the tenant's land, if near to such coal-pits, at what time of the year they please, and may let them lie there as long as they please ; " so that " they may be laid on the tenant's land and continue there for ever, though it may be more convenient for the lord to bring them on his own land ; which is absurd and unreasonable." 6. A custom, though established by consent, must, when compubory; established, be compulsory, and not left to the option of every man, whether he will use it or no ; therefore, a custom that all the inhabitants of a particular district shall be rated toward the maintenance of a bridge will be good ; but a cus- tom that every man is to contribute thereto at his own plea- sure, is idle and absurd, and indeed no custom at all (o). 7. Customs must be consistent with each other — one cus- tom cannot be set up in opposition to another ; for, if both are really customs, then they are of equal antiquity, and must have been established by mutual consent, which to say of contradictory customs is absurd (p). 8. With reference to the interpretation of customs, it will suffice to say that customs, especially where they derogate from the general rights of property, must be construed strictly (q) ; Customs must be — and con- sistent. Customs — Ixow con- sirued. (o) 1 Bla. Com. 78. (i')Id. (j) Judgm., Sogers v. Brcnton, 10 Q. B. 57 ; per Bayley, J., 2 B. & C. 839. OF WHAT ELEMENTS COMPOSED. 19 they are not to be " enlarged beyond the usage " (r) ; they may be abrogated by statute (s). Besides local customs properly so called, there are, in customs ot the countrj', different parts of the country, certain usages existing, which, unless excluded expressly or impliedly by agreement between parties (t), regulate, to some extent, the relation of landlord and tenant, or affect the reciprocal rights of incoming and outgoing tenants, and are usually known as " customs of the country." Now a custom (u) belonging to this class need not be shown to have existed immemorially, but will be established on proof of a usage, recognised and acted upon in the particular district, applicable to farms of a like de- scription with that in regard to which its existence is spe- cifically asserted (x). A " custom of the country," in order that it be good, must be reasonable (as will appear by refer- ence to some of the cases already cited), and sufficiently definite and certain. A^ery similar to the local usages last mentioned, as regards Particular •' ° > o usages o£ their operation npon the contracts of parties, are particular *^*'*®- usages of trade which exist in certain places ; and, in order to be effective, must be reasonable (y), and must be proved by apt evidence in courts of justice. The legal effect of usages of trade will be hereafter noticed {z), (r) Jiidgm., Arthur y. BokenJiam, 11 (x) Woodf. L. & T. 9tli ed., 490; Mod. 160 ; see per Cocklmrn, C. J., 2 Daliy v. Hirst, 1 B. & B. 224, where H. & N. 680-1. the question was raised at Nisi Prius. (») Truscott V. Merchant Tailors' (y) See Cropper v. Cooh, L. K. 3 Co., 11 Exch. 855; Coopers. Hubbuch, C. P. 194 ; Gi-issell v. Bristowe, L. R. 12 C. B,, N. S., 456. See, for instance, 4 C. P. 36 ; Cuthbert v. Cumming, 11 Stat. 19 & 20 Vict. c. 94. Exch. 405, 10 Id. 809 ; Paxton v. («) Post, Book II. Comtnay, 2 Post. & Fin. N. P. Ca. (u) The word "custom" thus used 131; Crihson v. Crich, 2 H. & C. "cannot mean a custom in the strict 142. legal signification of the word ; for that (z) See particularly Book II. Chap. 4. must be taken with reference to some Mercajitile customs seem properly divi- ■ defined limit or space, which is essential sible into three classes : — 1. Customs to every custom properly so called;" "which all nations agree in and take per Lord EUenharough, C. J., Legh v. notice of," and which are held to be Hewett, 4 East, 154, 158. part of the law of , England. 2. Cus- 2 20 COMMON LAW— WHAT — Loxnon As GUI' Ux scHpta must be interpreted, so must our lex seripta— ^ i / v i j^ oiared^' '^^'^''^ scvvpta be declared by the judges {a), whose ottice, as already stated (h), it is jii^ dicere, and whose decisions, when collected in the reports, exhibit our common law, as it has actually been applied to facts differing from each other, as well in kind as in their combinations. Judicial decisions indeed, afford the best — oftentimes the only — evidence of what law is ; and, in arriving at these decisions, the Judges allow themselves to be guided by established precedents, by fixed and recognised rules of pleading, evidence, and prac- tice (c), and by the admitted maxims of the law. In conformity with our most approved Commentators, I have mentioned maxims as one important element of our common law. Of these maxims, which embody principles of much value, when their application is rightly understood, many have been derived to us from the Roman or Civil Law ; and, although it be true, as judicially remarked, that this law forms no rule binding in itself upon the subjects of these realms; yet, in deciding a case upon principle, where no direct authority can be cited from our books, the Courts at Westminster will listen to arguments drawn from the Insti- toms prevailing throughout the length received time out of mind, supposing it and breadth of this country, which also presumably capable of a legal origin," have the force of law here, and are in Per Lord Chelmsford, Free Fishers of general iudicially noticed, -withoutproof. Whitstalle v. Gann, 20 C. B., N. S., 3. Customs purely local, such as are 27. See also Free Fishers of Whit- alluded to in the text, which must be stable v. Foreman, L. E. 3 C. P. 578 ; proved. See a learned note, 8 C. B. Holford v. George, L. R. 3 Q. B. 639 ; 967, and oases cited, ante, pp. 10, 11. Laxcrence v. Hiteh, Id. 521; Bi-yant The custom of London is cei-tified by the v. Foot, Id. 497 ; MiUs v. Mayor, Ac. Recorder ; see Westoby v. Day, 2 E. & of Colchester; L. R. 3 C. P. 575. B. 605 ; Matthey v. Wiseman, 18 C. («) See per Nm-th, C. J., Barrui.r- B., W. S., 657. diston v. Soame, G How. St. Tr. 1095, Evidence of long-continued usage 1116. may have much weight in support of a (6) Ante, p. 3. pecuniaiy demand ; for instance, it has (c) As to the ordinary rules of plead- been said that "every intendment ing, evidence, and practice in civil cases, ought to be made in favour of a pay- post, Chap. i. ment which has been uninterruptedly OF WHAT ELEMENTS COMPOSED. 21 tiites and Pandects of Justinian, and will rejoice if their conclusions are shown to be in conformity with that law, which is " the fruit of the researches of the most learned men, the collective wisdom of ages, and the groundwork of the municipal law of most of the countries in Europe "(cZ). Before concluding this chapter, one observation further The kw conforms may be offered : — The law of England, whether statutory to certain "' o ' •! great prin- or customary, professes to act in accordance with, and to <^'p'"'- be regulated by, certain great fundamental principles. It professes to act and adjudicate conformably to the law of Nature, the law of God, to common sense, to legal reason, justice, and humanity (e). "The law of Nature," says Blackstone (/), "being coeval Law of . Nature. With mankmd, is superior m obligation to any other ; " " no human laws are of any validity, if contrary to this." We read also in Calvin's case (road. the Courts at Westminster, but persons resident abroad, whether foreigners or subjects of the Crown, may, under the provisions of the Common Law Procedure Act, 1852, and subject to certain conditions hereafter mentioned, be effec- tually served with process issuing out of our Courts ; and thus actions may be commenced in this country and prose- cuted against absentees with a view ultimately to issuing execution against their property and effects here situate Qi). It may, however, be as well to add, that civil process, by way of execution against the person (i) of a defendant clearly cannot be enforced beyond the limits of this king- dom already specified; because, in such case, the maxim stUl holds — Extra territorium jus dicenti vnypune non paretur (k). In regard to Courts of Appellate Jurisdiction, viz., the Court courts of of Exchequer Chamber and the House of Lords, I will, in con- l^l^^'^"' eluding this Section, merely observe that the Court of Ex- De la Sosa v. Prieto, 16 C. B., N. S. abroad, may, howerer, in some cases 578 ; De la Vega r. Vianna, 1 B. & \>e brought within the jurisdietion of Ad. 284 ; Gen. Steam, Nav. Co. t. our Courts by Tirtue of international (?!tiZfo«,llM.&W.877,895; Judgm., treaties, WUde i. Sheridan, supra; Lloyd v. (A) See Be Mansergh, 1 B.]& S. QuSbert, L. R. 1 Q. B. 115, 6 B. & S. 400. 100 ; Lermiic v. Brawn, 12 C. B. 801 ; Under stat. 22 & 23 Vict. c. 63, s. 1, per WiUes, J., WUUaums, app., Wheeler, it is competent to a Court in one part reap., 8 C. B., N. S. 316 ; post. Book IT. of Her Majesty's dominions to remit a Ch. 3. case for the opinion of a Court in any (g) Bristow v. SequeoiRe, 5 Exch. other part thereof. See also stat. 24 275. Vict. c. 11, for better ascertaining the (h) Post, Chap. 4. law of foreign countries when pleaded (i) A criminal offender, who has gone in our Courts. 48 COURTS OF LAW. Exchequer chequcr Chamber derives its origia from the stat. 31 Edw. 3, Chamber. ^ ° St. 1, c. 12, and -was first established to hear and determine causes brought before it by Writ of Error from the Common Law side of the Exchequer. The jurisdiction (l) and constitu- tion of this Court have, however, been altered by the 11 Geo. 4 & 1 Wm. 4, c. 70, — s. 8 of which enacts that Writs of Error from any judgment given by the Court of King's Bench, Common Pleas, or Exchequer, shall be returnable only before the Judges of the other two Courts in the Exchequer Chamber. House of The House of Lords, albeit the highest judicial tribunal in the realm, proceeds, as long ago remarked (m), on writs of error, and in "all matters of judgment" secundum, legem terra}, so that there is not one law in Westminster Hall and another in the Court of the Lords above (n). This Court although conforming to its own prior decisions — which can only be reversed by Act of Parliament (o) — may decline to recognise as binding judgments pronounced by inferior tri- bunals. In Dom. Proc. a case may be reviewed and over- ruled, which in a lower Court must have been followed. Hence, in cases intricate or important — and few . others offer themselves to the notice of the House — legal reasoning is there apt to take a wider range than it can do under circumstances less favourable ; it may discard precedents, and search out principles — thus ai-riving at results consistent with themselves, and worthy even of those intellects which in days gone by developed the frame-work of our English Law. (Z) As to which see Irwin v. Orey, per Lord Campbell, C. J., 1 E. & B. L. B. 1 C. P. 171. 804 ; per Alexander, C. B., 3 Bing. (m) Arg., 8 How. St. Tr. 315. 562. See Wilson t. WUson, 5 H. L. (») Id. ibid. Ca. 40, 63. (o) Att.-Gen. v. Dean, die., of As to the impoi-tance of adhering to Windsor, 8 H. L. Ca. 369, 391-2 ;,et settled law, see per Coleridge, J., 6 H. vide per Lord Kingsdown, Id. 459 ; L. Ca. 537. Tommey v. White, 3 H. L. Ca. 49 ; MODE OF PROCEDURE IN BANC, ' | 4.0 2. Mode of Procedure in Banc and at Judges' Chambers. Although in the earlier stages of their existence, the num- constitution of superior ber of Judges sitting m the Courts at Westminster was courts, subject to fluctuation, there is no doubt, that, for a long * " ^^^' period prior to the stat. 1 Will. 4, c. 70, each of the three Courts was composed of a Chief and three Puisne Judges ; and by the 1st section of that Act, the Crown was empowered to appoint an additional Puisne Judge to each Court ; and this power having been acted upon, each of the three Courts was after the passing of the Act in question, presided over by a Chief and four, since increased to five (p), Puisne Judges, i who, by virtue of the 12 & 13 Will. 3, c. 2, hold office quam- diu se bene gesserint, and are only removable on the address of both Houses of Parliament ; their tenure of office having been, moreover, since 1 Geo. 3, c. 23, unaffected by the demise of the Crown (q). Besides the Judges, there are attached to each of the three The Courts at Westminster five Masters, who now in virtue of a recent statute (r) perform many of the duties which formerly devolved upon the Judges ; they also tax attorneys' bills and bills of costs generally, examine affidavits, make minutes of judgments, rules, and orders of the Court, and investigate matters specially referred to them. The Masters have, more- over, the custody of the records, and are often appealed to as being, in some sort, the depositaries of the rules of practice of the Courts. They have likewise certain peculiar duties to discharge, connected with the branches of exclusive jurisdic- tion of each Court (s). The matters which are brought within the cognisance of of what ° matters or (p) Stat. 31 & 32 Vict. c. 125, (r) 30 & 31 Vict. c. 68. An appeal, "• ^^- howcTer, lies from the Master to the (s) As to the ciTil liability of the Judge, Id. s. 4. Judges of our superior Courts, post, («) Dax, Pr. 11-22. Chap. 3. 50 I i \^ COURTS OF LAW. classes of our Superior Courts of law may properly be divided or par- cases our ■*■ J c L J X cog^\Si° celled^ out into three great branches, viz., 1st, purely Civil ; 2ndly, quasi Criminal ; and Srdly, Criminal — Proceedings. To the head of purely civil matters or proceedings might be referred the entire theory of, and practice connected with, private rights, wrongs, and remedies ; the science of pleading in civil actions ; the code of practice to be observed therein ; everything, in short, connected with, or ancillary or incidental to, the conduct of a suit or an action at law, whether before a superior or an inferior tribunal. Within the second of the two heads just specified might, according to the usual arrangement, be included matters or proceedings connected with indictments for nuisances, the non-repair of roads, &c., criminal informations for libels, the ordinary applications for writs of quo warranto, mandamus, or prohibition, questions raised for judicial decision in con- nection with the administration of the Poor Law, and many other kindred or analogous matters which daily demand the attention of our Courts in banc, but which it would be useless to enumerate. As falling within the class of purely criminal proceedings might be specified an application for a habeas corpus to bring up the body of a prisoner, a motion to quash an inquisition, to remove an indictment for a misdemeanor into the Queen's Bench from the Sessions or from the Central Criminal Court ; everything, in short, connected with or originating out of the general criminal law of the land. Mode of The mode of procedure observed in our superior Courts, proce ure, ^^ ^^^ ^^ ^.^ .^ couuected with matters of a civil nature, may conveniently be treated in the following order : — 1st, the Mode of Procedure in Banc; 2ndly, that at Judges' Chambers ; and Srdly, that at Nisi Prius — whether on circuit or at the sittings in London or at Westminster. -iubanc. 1- In attempting to convey some idea of the mode in which our superior Courts, sitting in banc, are set judicially in MODE OF PBOCEDUBE IN BANC. 51 motion, and of the manner in which their jurisdiction, when solicited, is exercised, a distinction must be noted between Jurisdio- tion, formal their /orma? and their summani iurisdiction. The first- ^ sum- mentioned branch of jurisdiction " consists in the sanction given by the authority of the Court to those formal de cursu proceedings which constitute the ordinary and regular steps in a suit " (t), and which will be separately considered in Chap. IV. of this Book. The summary iurisdiction exercised by the superior Courts Summary •^ •' J r jurisdiction " exists either at common law or under the provisions of cer- — ^i"*' ; tain Acts of Parliament. So far as it exists at common law, it is calculated to effect one of four purposes : — 1. To prevent the regulations of the Courts from being infringed ; 2. To prevent their authority from being abused; 3. To prevent it from producing hardship ; 4. To enforce good conduct on the part of those who are peculiarly within their jurisdiction " (u). Cases referable respectively to each head or subdivision of the classification here adopted will present themselves to the reader during his progress through the present volume. The summary jurisdiction of the Court is exercised upon —how motion, made to it, by rule or order of the Court founded thereupon ; a motion being, indeed, merely an application to the Court, praying it to grant a rule, either conditional or absolute, in respect of some particular matter within its cog- nisance and jurisdiction. Such matter may or may not be connected with the progress of a cause ; it may be, as already intimated (x), of a civil, of a quasi-criminal, or of a criminal nature. Motions are usually made orally and in open Court ; and —by mo an application of this kind must (save in some peculiar cases, ex. gr. where an order is made on the mere suggestion of the (*) Smith, El. View, 2nd ed., p. 14. jurisdiction la concisely explained and (u) Smith, El. View, 2nd ed., pp. illustrated. 16-19, where each of these heads of (x) Ante, p. 50. E 2 exer- cised; 52 COURTS OF LAW. Attorney-General {y) ) be accompanied by an affidavit (z) or written statement upon oath, exhibiting, in a concise and orderly manner, the facts out of which the application springs : an affidavit being required in order that authentic information may thus be given to the Court as to the specific grounds upon which its interference is sought ; and it is above all things necessary, that the contents of an affidavit should, when the nature of the facts deposed to admits of it, be ex- plicit and positive : so that, if false, an indictment for perjury might lie against the deponent. If the Court is satisfied with the contents of the affidavit, and thinks that a pri/md facie case has been made out — .".ndruie. for its interference, a rule nisi or a rule to show cause will be granted ; the former being a rule conditioned to become absolute, or which makes itself absolute, unless cause be shown to the contrary; and the latter, a nile calling on the opposite party to show to the Court, on a particular day named in the rule, good cause why the thing specified therein should not be done. There are cases also in which a rule absolute will be granted in the first instance (a). Rule to The rule to show cause is prepared in a proper form by the ° """ ' " officer of the Court (h), and must, under the 149th of the Rules of Practice issued in Hilary Term, 1853, bear date of the day of the week, month, and year on which it is drawn up ; it must also be served on the opposite party ; provisions (y) See, for instance, A^ms v. Fre- specified in the Rules of Practice, com- mantU, 2 Exch. 453. mencing at reg. 138. (z) The 146th Kule of Practice ex- (o) See, for instance, Reg. H. T. 16 pressly declares, that " No rule which Yict. 168; Keg. Mich. Vac. 1854, the Court has granted upon the founda- i. 2. tion of any affidavit shall be of any (6) "In every rale nisi for a new force, unless such affidavit shall have trial, or to enter a verdict or nonsuit, been actually made before such rule was the grounds upon which such rule shall moved for, and produced in Court at have been granted shall be shortly the time of making the motion." The stated:" 17 * 18 Yict, c, 125, s. requisites flf affidavits in general are 33, show cauee, MODE OF PROCEDURE IN BANC. 53 regulating the time, place, and mode of such service, will be found in the Rules of Practice (c). If, on the day appointed for that purpose and specified in the rule (d), no cause is shown on behalf of the party upon whom it has been served and whom it seeks to affect, the rule will, upon a proper affidavit of service, be made abso- lute. If, however, cause is shown against it, that is, if counsel appear and argue in opposition to the rule, the Court will, in the exercise of their discretion, either discharge the rule, or in part or altogether nnake it absolute. In some eases, indeed, they will refer the matter thus brought before them to one of the Masters of the Court, that he may inquire into and report upon it ; or occasionally they may, with a view to insuiing complete justice between the parties, direct an issue, moulded in some particular form, for trial by a juiy. But if the rule be made absolute, and be not re-opened by permission of the Court (which is, however, seldom granted), non-compliance (e) with its requirements will be a contempt of Court, and punishable by attachment (/) ; the attachment being a judicial writ directed to the sheriff, and commanding him to arrest the individual who has been guilty of the contempt. In general, an attachment for contempt wiU be gi-anted only where the party against whom it is applied for has been ' called upon to do, and has wilfully omitted to do, some spe- cific act. Such motions occur, perhaps, most frequently in cases of awards. There the direction contained in the award (c) Reg. H. T. 16 Vict. 162, 163, the first instance, I e., on the mle nisi 165-7. Reg. Gen. May 8, 1856. being morecl. (d) A rule mil sometimes be en- (c) By stat. 1 & 2 Vict. c. 110, ». 18, larged, i. e., further time for showing a rule of Court, whereby "any sum of cause will be granted, either by consent money, or any costs, charges, or ex- of the parties, or on special grounds penses shall be payable to any person," submitted to the Court. See Beg. H. has the effect of a judgment, and is en- T. 16 Vict. 151, 152. Cause, more- forceable by execution. over, is sometimes, with a view to pre- (/) See Swinfen v. Swinfcn, 1 C. B., venting delay and expense, sho-«-ii in N. S., 364. 54> COURTS OF LAW. becomes, upon the award being made a rule of Court, in effect, the direction of the Court. But, nevertheless, the Court always takes especial care to see that the award is express and distinct in directing the particular matter to he done before it will attach the party for disobeying it. And the same strictness is likewise usually observed by the Court in enforcing performance of its own ordinaiy rules (g). Under the 34th and ensuing sections of the C. L. Proc. Act, 1854, an appeal is allowed in certain cases, and subject to certain restrictions, to the party against whom the Court in banc may have decided on motion for a rule (h). Although much time is occupied during the sitting of the Court in banc, in hearing motions for and arguments upon rules in respect of matters summarily brought before it, much time is also taken up with the argument of demurrers, special cases, special verdicts, and the like. Nor is business of this kind necessarily confined to the sittings in Term time (i) ; for our common law Courts also, by virtue of the 1 & 2 Yict. c. 32, s. 1, and the C. L. Proc. Act, 18.54, s. 95, hold sittings at their discretion in the Vacation, at times of which due notice is given, and all judgments then pronounced, and all rules and orders then made, have the same effect as if they had been pronounced or made in Term time, practica As ancillary to the sittings in banc of the Court of Queen's Bench must be mentioned the Bail Court, where much busi- ness, usually of a less difficult kind than that discussed in the full Court, is despatched before a single Judge, who derives his authority, when sitting there, from the 1 Will 4, c. 70, s. 1. This statute enacts that it shall and may be lawful for any one of the Judges of either of the three Courts (fif) Per WUde, C. J., 7 C. B. of eact Term is regulated by statutes, ''3*- viz. 11 Geo. 4 & 1 Will. 4, u. 70, 3. 6, (h) See Abiott 7. Peary, 6 H. & N. and 1 Will. 4, 0. 3, ». 3. See also Eeg. 11^: H. T. 16 Vict. 173, 174, 176. (i) The commencement and duration Court. MODE OF PROCEDURE IN BANC. 55 at Westminster, when occasion shall so require, while the other Judges of the same Court are sitting in banc, to sit apart from them, for the purpose, inter alia, of hearing and deciding upon matters on motion, and making rules and orders in matters depending in the Court to which the presiding Judge may belong. By virtue of this Act, also a single Judge of the Exchequer has sometimes sat apart from the full Court on the last day or two of Term, for the purpose ^f hearing and disposing of such motions as might be brought before him. 2. Besides the jurisdiction thus exercised by the superior Business _ Courts at Westminster, very many matters of much practical camnbera. importance and urgency are disposed of at Judges' Chambers, where a Judge of each Court attends in Term time, and for the most part in Vacation also, for the hearing of such appli- cations as may be made to him. During the long Vacation, indeed, one Judge usually stops in town to transact such business as may require his attention. The origin of the jurisdiction of a Judge at Chambers is involved in much obscurity ; but, as remarked by Chief Jus- tice Wilmot (k), whenever it began, it stands upon too firm a basis tp be now shaken, — that basis being constant imme- morial usage, " sanctified and recognised " by the Courts of Westminster Hall, and, in many instances by the legislature, so that it has, at this day, become as much a part of the law of the land as any other course of practice, which custom or usage has established. Notwithstanding the difficulty of arriving at any precise and definite conclusion as to the time when, and mode in which, the jurisdiction of a Judge at Chambers originated, there can be no doubt that it was introduced with a view to the ease and convenience of suitors, and in order that they might be accommodated, in a great variety of cases, at com- (k) Opinions, p. 264. 56 COUETS OF LAW. paratively little expense and trouble. The jurisdiction of a Judge at Chambers has been expressly recognised and sanc- tioned by the legislature : for instance, — the 1 Will. 4, c. 70, s. 4, enacts, that every Judge of the superior Courts of laW, to whatever Court he may belong, shall be authorised to trans- act such business at Chambers and elsewhere, depending in any of the said Courts, as relates to matters over which they have a common jurisdiction, and as may, according to the course and practice of the Court, be transacted by a single Judge ; and the Jurisdiction of a Judge at Chambers is further extended by the 1 & 2 Vict. c. 45, s. 1, which provides, that every Judge of any one of the three superior Courts shall have equal jurisdiction, power, and authority to transact out of Court, such business as may, according to the course and practice of the Court, be so transacted by a single Judge, relating to any suit or proceeding in either of the said Courts, or on the common law or revenue side of the Court of Exchequer, or to any matter usually transacted out of Court, although the said Courts have no common jurisdiction therein, in like manner as if the Judge trans- acting such business had been a Judge of the Court to which the same by law belongs : the effect of this en- actment being to give to the Judges of the respective Courts a general and concurrent jurisdiction in any busi- ness which may be transacted out of Court by a single Judge (I). In connection with this part of the subject, it may be observed, that sometimes a particular Act of Parliament re- quires that an application founded upon it should be made to the full Court ; and, in every such case, the jurisdiction of a Judge at Chambers is, of course wholly excluded ; some- times a distinction is specially made between the authority and powers to be exercised in banc, and those confided to a (/) Per Maule, J., Bennett v. Dean, i M. & Or. C3S, MODE OF PROCEDURE AT CHAMBERS. 57 Judge at Chambers, and here again, provided the intention of the legislature be clearly expressed, no diflSculty can occur. There are indeed cases in which a doubt might reasonably be felt as to the meaning of the words used by the legis- lature, and where, consequently, a Judge at Chambers would perhaps decline to exercise jurisdiction. If, however, some special power or authority is given to "the Courts" by statute, the presumption will be, that it was intended to be exer- cised as the Courts usually exercise their jurisdiction ; and it may, accordingly, fall within the province of a Judge at Chambers to put in force the provisions of the Act in question (m). The ordinary mode of procedure at Chambers is, as might Mode of •' ■■ ' o procedure at be expected, somewhat different from that observed in the cii^mbers. full Court ; for, as in the latter case, it is by rule and order of the Court, so, in the former, it is by summons, supported at the hearing by affidavits, and order of the Judge founded thereupon. To explain the mode of procedure alluded to somewhat more minutely, — the party requiring the intervention of the Judge in the first place takes out a summons, which is issued by the Judge's clerk, and serves a copy of this summons, upon the opposite party. The summons calls upon such party, or upon the individual whose interests may be affected by the application, to shovj cause at Chambers, on a particular day, and at an hour specified therein, why the matter or thing, performance of which is sought to be enforced, should not be done. If the party on whom the summons is served does not appear thereto, the 153rd Rule of Practice directs, that the party taking out such summons shall be entitled to an oi-der on the return of it (ri). Should, however the opposite party duly appear to the (m) See ^ev Parhe, B., Smeeton v. (n) See also Eeg. Hil. T. 16 Viet. Culliet; 5 D. & L. 189, 190. 154. 58 COURTS OF LAW. summons, the matter involved in the application will be dis- cussed before the Judge, who either will determine it him- self (in which case he usually indorses a minute of his decision on the summons), or, in cases of importance, may refer the applicant to the full Court. When the order is made by the Judge, it ought to be drawn up and served forthwith, otherwise the opposite party may treat it as abandoned. If the order be served but not obeyed, it should then be made a rule of Court (o) ; and may afterwards be enforced, if necessary, by attachment. Should the party to whose interests the Judge's order is adverse, wish to dispute its correctness or validity, he may do so, if at all, by an application to the full Court, which is in the nature of an appeal from the decision of the Judge at Chambers. There is, however, a distinction to be noticed between cases where an objection is taken to the particular mode of compliance with the Judge's order, and those where the manner in which his discretionary power has been exercised and the propriety of his decision are called in question. In the former class of cases, the Judge who made the order will (on being applied to for that purpose) himself see that- it is properly carried out, whilst, in the latter, the party dissatis- fied with the decision at Chambers must (provided he is not debarred from doing so by the express words of some par- ticular statute) apply to the Court in banc (j>). Even in case of an erroneous decision by the Judge, it is worthy of notice, that although the Court in banc will control and revise such decision, where it was given under a delegated authority, yet, they will not in general do so, where the Judge was acting under distinct and independent powers, conferred (o) A Judge's order obtained in Va- Hil. T. 16 Vict. 158. cation cannot, however, be made a nde {p) See per Alderson, B., 3D. & L. of Court before the next Term : Reg. 468 ; O^riffith v. Selby, 9 Exch. 393. JURISDICTION OF THE COUNTY COURT. 59 upon him by the statute law ; and, in this latter case, the words of the particular Act, and the intention of the legis- lature (q), must necessarily determine as to the finality of the decision of the Judge (r). It is a rule, also, in support of which many authorities might be cited, that an appeal from the decision of a Judge at Chambers to the Court at Westminster must be made speedily, or, at all events, within a reasonable time, regard being had to special circumstances, if any, appearing in the case. " It is," says Lord Campbell, C. J. (s), " a wholesome rule that any application to this Court (Q. B.) in the shape of appeal from a decision of a Judge at Chambers should be made within the Term next after such decision." The 3rd head of inqiiiry suggested at p. 50, was, as to the Business at mode of procedure before a Judge sitting at Nisi Prius ; inasmuch, however, as this will have to be considered post. Chap IV., which treats of the successive steps in an action at law, reference thither may be made for information upon the subject specified. Sect. II. Ordinary Jurisdiction of the County Court. As falling within the ordinary jurisdiction of the County Court (f) will here principally be noticed breach of contract, ejectment, and tort. We may, however, by way of preface, (2) See, for instance, C. L. Proc. Act, -whicli is entirely a creature of the sta- 1860, ss. 4, etseq. tute law, must not, of course, be con- (r) "It may be affirmed generally founded with the sberiff's court, which that where a thing may be done by the represents the old county court of the Court or a Judge, and the Judge does it, Anglo-Saxon and Norman times, ante, his decision may be reviewed :" per p. 25. Maule, J., WUhim v. Heed, 15 C. B. The ordinary jurisdiction of the 200. County Court treated of in the text («) Meredith v. Gittins, 18 Q. B. depends on the following statutes : 9 260 ; Day's C. L. Proc. Acts, 3rd ed., & 10 Vict. c. 95, s. 58 ; 13 & 14 Vict. 82. 0. 61, s. 1 ; 19 & 20 Vict, c. 108, (*) The County Court here spoken of, ss. 23, 24 ; 30 & 31 Vict. c. 142. 60 COUETS OF LAW. observe, that although, as regards these, the jurisdiction of the Court is limited, yet with respect to any action which may be brought in any Superior Court of common law, if both parties " agree by a memorandum signed by them, or their respective attornies," that any County Court named therein shall have power to try such action, such County Court will thus have jurisdiction to try the same (u). No action, however, which can now be brought in any County Court shall henceforth be commenced, or be maintain- able, in any inferior Court not being a Court of Record (x) ; and if an action be brought in any other than a superior Court of law which could have been brought in a County Court, and the verdict recovered be for a less sum than 10^., the plaintiff will not be entitled to recover from the defen- dant a greater amount of costs than he would have been allowed if the action had been brought in the County Court, unless the Judge certify that it was fit to be brought else- where (y). Also, where an action is commenced in a supe- rior which might have been brought in the County Court, the consequence will either be its compulsory removal into such latter Court, or loss of costs by the plaintiff (s). And further, if an action be brought in a County Court which that Court has no jurisdiction to try, the Judge*will " order the cause to be struck out," and will, unless the parties consent to the Court having jurisdiction to try the same, " award costs in the same manner, to the same extent, and recoverable in the same manner, as if the Court had juris- diction in the matter of such plaint, and the plaintiff had not appeared, or had appeared and failed to prove his de- mand" (a). Thus careful has the legislature been to throw (a) 19 & 20 Vict, c. 108, =. 23, (x) 30 & 31 Vict. c. 142, s. 28. ^Hcli however did not extend to give (y) Id. a. 29. jurisdiotion to the County Court in an (z) Post. action for criminal conversation, now («) 30 & 81 Vict, u, 142 s. 14. abolished, 20 & 21 Vict. c. 85, s. 59. JURISDICTION OF THE COUNTY COURT. CI obstacles in the way of unnecessarily costly litigation, and to induce or compel a suitor to seek redress in the local tribunal whensoever it can properly be afforded there. The County Court has jurisdiction to entertain any action contract of contract, where the " debt, damage, or demand," does not exceed the sum of 501., whether " on balance of account or otherwise," or "after an admitted set-off" (6). This Court may accordingly take cognisance of an action upon a bill of exchange or promissory note (c), or for the recovery of goods in specie (d) within the value of 501. (e) ; though not of an action upon a judgment recovered in a Superior Court (/) ; nor where the claim is for beer consumed on the premises where sold or supplied, or money lent for obtaining the same (cf). But what, it may be asked, is the. precise meaning of the expression " balance of account," which occurs in the 58th section of the stat. 9 & 10 Vict. c. 95 1 The answer is, that these words are intended to apply to accounts which have been adjusted, settled, ascertained, or balanced by the par- ties, or to any debt which has been reduced within the prescribed limit of 501. by payment (h), or something equiva- lent thereto. Suppose, for instance, a claim to be preferred in the County Court for a sum below 50^., and suppose it ap- pears that the debt originally due from the defendant exceeded that amount, but has been reduced below it by payment before action brought, the defendant will not, under such circumstances, be entitled to say, that the case is with- out the jurisdiction of the County Court (i). So, if anything (6) 9 & 10 Yict. c. 95, a. 58 ; 13 & 309. 14 Vict. c. 61, s. 1 ; 19 & 20 Yict. o. (e) Leader v. Mhys, 10 C. B., N. S., 108, s. 24. 369. (c) Waters v. ffandlcij, 6 D. & L. (/) 19 & 20 Yict. c. 108, s. 27. 88 ; Nind v. Modes, 5 D. & L. 621. (g) 30 & 31 Yict. o. 142, s. 4. See also Lowley v. Rosd, 12 Q. B. 952 ; {h) Secus, as to tender, see Crosse v. 19 & 20 Yiet. c. 108, s. 4, Seaman, 10 C. B. 884. (d) Taylor T, Addyman, 13 C. B. (i) See per Maule, J., Woodhams 62 COURTS OF LAW. other than money be received in reduction of a debt by agreement of the parties, that will be equivalent to payment, so as to bring the case within the jurisdiction of the County Court (/c), the question whether it was so received or not, being determinable from the evidence pro and con. which may be adduced. A set-off admitted by the defendant before action, and entered on the particulars before service (J), will bring a claim within the jurisdiction of the County Court (m). But clearly a case will not be cognisable by the County Court in which a claim exceeding 501. is reduced by a flea of set-off within that amount ; for if it were so, the Court might be called upon to investigate two several claims, each of them far exceeding the limits of its statutoiy jurisdiction (n). Sputting Another point to be here noticed is, that, by the 63rd section of the 9 & 10 Vict. c. 95, read in connection with the 13 & 14 Vict. c. 61, s. 1, " it shall not be lawful for any plaintiff to divide any cause of action, for the purpose of bringing two or more suits " in the County Court. But a plaintiff claiming " a debt, damage, or demand " for more than 50?., may, if so minded (by the express provisions of the 63rd section just mentioned), " abandon the excess," and recover to an amount not exceeding the 501. (o). As explanatory of the above section (which, in common parlance, is said to forbid the "splitting of a demand,") Grimbly v. Ayhroyd (p), should be consulted, where the T. Newman, 7 C. B. 654 ; per Parhe, {n) Woodhams v. Newman, 7 C. B. B., Turner v. Berry, 5 Exch. 858. 654 ; Beswich v. Capper, Id. 669 ; (h) See Hooper v. Stephens, 4 Ad. & Kimpton v. WHley, 1 L. M. & P. 280. E. 71 ; ffUls y. Mestmrd, 10 Q. B. (o) THs abandonment of the excess 266. must, under the 43rd Kule of Practice, (t) Eule 43. be made upon the particulars of (m) 19 & 20 Vict. c. 108, =. 24 ; demand. Waleshy v. Oowlston, L. K. 1 C. P. (jp) 1 Exch. 479 ; Judgm., Wood v. 667. As to the distinction between Perry, 3 Exch. 445 ; Judgm., Bonsey "payment" and "set-ofF," see Thomas v. Wordsworth, 18 0. B. 334-5; Cope- V. Cross, 7 Exch. 728. man v. HaH, 14 C. B., N. S., 731, JURISDICTION OF THE COUNTY COURT. facts were as follow : the defendant was a railway contractor, and the plaintiff was a shopkeeper who supplied goods to the workmen employed on the line, upon the authority of tickets, specifying particular amounts as due to them, signed by a sub-contractor employed by defendant, and given to the workmen in part payment of their wages. Upwards of three thousand of these tickets had been presented to the plaintiff, and goods supplied upon them to the men. The defendant was served with 228 summonses, to appear at the West- minster County Court, to answer the plaintiff as to each of the summonses, " in an action on contract for goods sold," the several sums sought to be recovered amounting together to upwards of 300i. Owing to the mode in which this case was presented to the Court at Westminster, viz. on motion for a prohibition to the local Court, no question arose as to whether or not the defendant had authorised the supply of goods by the plaintiff. His authority was taken as proved ; and we may also assume that the goods had been supplied in pursuance of one continuing authority, and in the same course of dealing between the parties. In delivering judg- ment in this case that a prohibition ought to go, the Court of Exchequer drew a distinction between a claim or demand comprising several distinct and independent matters, which may clearly be recovered by separate suits in the County Court (q), and a running account consisting, indeed, of various items, but which is meant to constitute one entire debt. Where, in the case of a tradesman's bill, they remarked, one item is connected with another in this sense, that the dealing is not intended to terminate with one contract, but to be continuous, so that one item, if not paid, shall be united with another and fonn one entire demand, the plaintiff cannot 735 ; per Erie, J., Jones r. Pritcha/rd, (q) See BrumhUl v. Powell, 1 L. M. 6 D. & L. 530. See also Box v. Oreen, & P. 550 ; Kimvpton v. Willey, Id. 9 Exch. 503. 280 ; Wickham t. Lee, 12 Q. B. 621. 63 64 COURTS OF LAW. split these items into separate causes of action, but must sue for the aggregate amount (r). Let us suppose a case somewhat analogous to that just considered, but in reality to be decided on other gi-ounds ;— that a banker receives a sum of money, belonging to different persons severally, from their agent, who is charged to divide it. amongst them in distinct proportions; let us further sup- pose that the aggregate sum paid into the bank exceeds 501., but that the several undivided portions of which it is com- posed fall respectively within that limit ; it is, of course, under the circumstances stated, clear, that an action would not lie in the County Court at suit of the agent for the entire deposit paid into the bank, inasmuch as that would be with- out the jurisdiction of the inferior tribunal ; but it is also clear, that an action could not be maintained there for his several share by any one of the individuals beneficially inte- rested in the fund, upon this ground, that the original con- tract was not with him, but was between the banker and the agent (s). Again, it is a common practice for fai-mers and graziers to send their cattle to a particular salesman, who perhaps sells to one individual a lot of beasts belonging to many different owners. Now, here the contract of sale is between the sales- man and the purchaser, so that each separate owner could not sue the latter for the price of his cattle (t). Cases like the foregoing are not to be decided by re- ference to the wording of the County Court Acts, but upon elementary principles, on which the law of contracts is dependent. As to aban- ^^*' although a causo of action cannot be divided in order exMss^ *''* to entitle a claimant to sue in the County Court, a plaintiff claiming more than 501. is, by the 63rd sect, of the 9 & 10 (»■) See per Jenis, C. J. , Bonsey t. 447. Wm-dsworih, 18 C. B. 328-9. (t) Per Martin, B., Walshe v. Pro- (s) See Pinto v. Santos, 5 Taunt. van, 8 Exch. 852. JURISDICTION OF THE COUNTY COURT. 65 Vict. c. 95, allowed to abandon the eaxess of his demand, and to sue for the residue in the County Court. In the event of. his doing so, however, " the judgment of the Court '' upon the plaint " shall be in full discharge of all demands in respect of " the " cause of action," and " entry of the judgment shall be made accordingly ; " the consequence of abandoning the excess of his demand over the 50^. will conse- quently be to preclude the plaintiff from afterwards recovering it by action, and, should the defendant have any ground of set-off available, such abandonment may be attended with additional inconvenience and prejudice. This results from the fact, that a plaintiff cannot compel his adversary to plead a set-off; and should he abandon the excess of his demand, so. as to bring his claim within the jurisdiction of the County Court, and then be met by a set-off, he might of course be altogether defeated in his action ; and, at all events, the claimant would find himself exposed to the risk of having his demand reduced, not merely by the amount abandoned, but also by the amount of the set-off. If, on the other hand, the defendant does not plead his set-off to the plaintiff's reduced demand, but sues for it in a cross action, then the plaintiff wiU be debarred in that action from setting-off any of the abandoned portion of his original claim by the express words of the 63rd section of the Act (u). In practice, therefore, a plaintiff will do well to avail him- self of the power of abandonment above alluded to, only where the excess abandoned is unimportant in amount, or in cases where no set-off can be estabUshed, and where the recovery of any part of his demand might be jeopardised by delay. At pages 71, 72, will be found stated the consequence as regards costs of suing for breach of contract in a superior Court, where a County Court might have entertained the («) See per Maule, J., Woodhams v. Newman, 7 C. B. 666-7. F 66 COURTS OF LAW. action. Other consequences may also follow from so doing. For where in an action of contract there brought, " the claim indorsed on the writ does not exceed 501., or where such claim, though it originally exceeded 501., is reduced by pay- ment, an admitted set-off, or otherwise, to a sum not ex- ceeding 501.," it is competent to the defendant, if he contest the whole or part of the plaintiff's demand, to call upon him by summons to show cause before a Judge at Chambers why such action should not be tried in the County Court, or one of the County Courts in which it might have been commenced (x), and the Judge will, unless there be good cause to the con- trary, order that the action be there tried accordingly (y). Also where in an action of contract brought in a superior Court " the claim indorsed on the wi'it does not exceed 501., or where such claim, though it originally exceeded 501., is reduced by payment into Court, payment, an admitted set-ofiF, or otherwise, to a sum not exceeding 501.," it is enacted by 19 & 20 Vict. c. 108, s. 26, that a "judge of a superior Court, on the application of either party after issue joined, may in his discretion, and on such terms as he shall think fit, order that the cause be tried in any County Court which he shall name," and the trial will take place there ac- cordingly (z). Although the County Court, as originally constituted, had a jurisdiction limited in amount over " all pleas of personal actions," and consequently in tort as well as in contract, the following cases were, nevertheless, prior to the enactment 80 & 31 Vict. c. 142, wholly, or save by consent of parties (a), excluded from the jurisdiction of that Court (b) : — Any action of ejectment ; or in which the title to a corporeal or incorpo- (x) Post, ch. 4, ». 2. (a) Ante, p. 60. (y) 30 & 31 Vict. u. 142, s. 7. (i) 9 & 10 Vict. u. 95, s. 68 ; 19 & (z) See also 19 & 20 Vict. c. 108, 20 Vict. ^. 108, s. 23. 39. JURISDICTION OF THE COUNTY COURT. 67 real (c) hereditament, or to any toll (d), fair, market, or franchise (e) might be in question ; any action in which the validity (/) of a devise, bequest, or limitation under a will or settlement might be disputed ; any action for a malicious prosecution (^), or for libel, slander, seduction, or breach of promise of marriage. A great extension of jurisdiction has, however, by the statute above specified, been given to the County Courts in respect of some of the matters above enu- merated. In the first place an action of ejectment now lies in the County Court, where neither the value of the lands, tene- ments, or hereditaments claimed, nor the rent payable in respect thereof, exceeds the sum of 201. yearly (h). Secondly, the County Court has now jurisdiction to try any action in which the title to any corporeal or incorporeal hereditaments may come in question where neither the value . of the lands, tenements, or hereditaments in dispute, nor the rent payable in respect thereof, shall exceed the sum of 201. by the year, or in case of an easement or licence where neither the value nor reserved rent of the lands, tenements, or hereditaments in respect of which the easement or licence is claimed, or on, through, over, or under which such ease- ment or licence is claimed, shall exceed such sum yearly : " Provided that the defendant in any such action of eject- (c) See Stephenson v. Baine, 2 E. & Qibion t. Gibhon, 13 C. B. 205 ; B. 744 ; Davis v. Walton, 8 Exch. Eewston f. Phillips, 11 Excli. 699 ; 153 ; Badddey v. Denton, i Excli. Winch v. Winch, 18 C. B. 128 ; 'Long- 508 ; Steuart t. Jones, 1 E. & B. 22. bottom v. Longiottom, 8 Exch. 203 ; {d) Reg. t. Everett, 1 E. & B. 273 ; Fuller v. Mackay, 2 E. & B. 573. Eunt T. Great Northern R. C, 2 L. (g) Jones v. Cmrey, 2 L. M. & P. M. &P. 268; ;& C, IOC. B. 900. 474; Hunt v. Nmth Stxiiordshiire (e) See Bavis v. Walton, 8 Bxch. R. G., 2 H. & N. 451. See CUven-s 153. V. Savage, 5 E. & B. 897. (/) The County Court Judge has ju- (A) 30 & 31 Viot. c. 142, s. 11; risdiction, however, in regard to a claim Brown v. Cocking, L. B. 3 Q. B. 672 ; for a legacy, when ita "validity" is Elston'v. Rose, L. E. 4 Q. B, 4. not disputed, post, p. 72. See also V 2 68 COURTS OF LAW. ment, or his landlord, may, within one month from the day of service of the writ, apply to a Judge at Chambers for a summons to the plaintiff to show cause why such action should not be tried in one of the superior Courts on the ground that the title to lands or hereditaments of greater annual value than 201. would be affected by the decision in such action ; " and on the hearing of such summons, the judge, if satisfied that the title to other lands would be so affected, may order such action to be tried in a superior Court, and thereupon proceedings in such action in the County Court will be discontinued {%). Prior to this en- actment, however, the County Court had jurisdiction in a case of distress for rent, although the title to the premises was disputed (jc). In connection with cases in which the " title " to land is in . question before the County Court, two questions of consider- able interest to the practitioner demand consideration : — 1. How is the Judge of that Court to act when the title to land is alleged to be or is in question ? 2. When may it properly be said to be so ? 1. The plaintiff may possibly, in his particulars, so far exhibit the true substance and nature of his claim, as alto- gether to exclude it from the cognisance of the Court to which he would refer it, and here of course no practical difficulty as to the mode of dealing with the claim can be felt (I). Again, the objection to the jurisdiction, founded on the subject-matter in dispute, though not appearing on the particulars or summons, may be raised by the defendant at the hearing ; and, if so, the duty of the judge will be, in the first instance, to inquire into the case, with a view to satisfying himself whether the title does really come in question or does not. Should he think that it does come in (i) 30 & 31 Vict. ^. 142, s. 12. 4 B. & S. 578. (h) Poll. & N. County Court Pract. (I) gee SeweU v. Jones, 1 L. M. & &iiaA.,^.W& ; ReFordkamY. Alcers, P. 525, JUEISDICTION OF THE COUNTY COURT. 69 question, he will dismiss the summons ; should he think that it does not come in question, he will hear and adjudi- cate upon the claim : the remedy open to the party dissatisfied with the decision of the judge being by application to one of the superior Courts, in the former case, for a mandamus, and, in the latter, for a prohibition, to issue to the County Court (m). It is not, however, absolutely incumbent on a defendant sued in a County Court, who knows that the title to land must come in question, to wait until the hearing, in order then to put forward the objection. It is quite open to him, if so minded, upon being served with process out of the inferior Court, to apply at once for a prohibition to restrain the County Court judge from proceeding further with the case (n), the application being supported by proper affidavits. 2. When or under what circumstances may the title to a. corporeal hereditament properly be said to be in question ? It is clear that a mere colourable pretence of title, or a claim to what can have no valid existence in law, will not suffice to oust the jurisdiction of the County Court ; the title must be brought hondfide in question {6). Thus, if a tenant be sued for use and occupation, and rely on the fact, that his landlord's title has expired during the tenancy, evidence of such fact will oust the jurisdiction of the County Court (/>). A plaint was entered in a County Court for a trespass in removing plaintiff's goods from certain rooms of a house, the residue of which was occupied by the defendant; and it appeared that the real question in dispute was, whether the plaintiff had let the whole house to the defendant, or had reserved for himself (m) Latham v. Spedding, 2 L. M. & Jones, 1 L. M. & P. 525. See Wads- P. 378; 3ndgm..,Th(nn^sony.Ing7tam, worth v. Queen of Spain, 17 Q. B. 1 L. M. & P. 219 ; cited per Watson, 171. B., Re Baker, 2 H. & N. 234 ; SU- (o) Lloyd -r. Jones, 6 C. B. 81. phcnson T. Same, 2 E. & B. 744 ; (p) Mountnop v. Collier, 1 E. & B. Lawford v. PaHridge, 1 H. & N. 621 ; 630. See KerTcim v. Kerkin, 3 B. & B. Mountnoy v. OoUier, 1 B. & B. 630. 399 ; Emery v. Ba/rnett, 27 L. J., C. (n) Per Wightman, J., SeweU v. P. 216; S. O., 4 0. B., N, S., 423. 70 COUETS OF LAW. the rooms in which the trespass was alleged to have been committed : upon these facts it was held, that a question of title to a " corporeal hereditament " had come in question, and that the County Court judge had no jurisdiction to adju- dicate upon the plaint (g). So, if a party were charged in a County Court with a liability arising by reason of his owner- ship of land, and he disclaimed the ownership, a question of title would be raised, and the jurisdiction of the Court would, in the absence of any enactment overriding the County Court Act (9 & 10 Vict. c. 95), be ousted (r). We must add, that by stat. 19 & 20 Vict. c. 108, s. 25, where in any action in the County Court " the title to any corporeal or incorporeal hereditament, or to any toll, fair, market, or franchise, shall iTwidentally come in question, the judge shall have power to decide the claim which it is the immediate object of the action to enforce, if both parties at the hearing shall consent, in any writing signed by them, or their attorneys, to the judge having such power; but the judgment of the Court shall not be evidence of title between the parties or their privies in any other action in that Coxirt, or in any proceeding in any other Court ; and such consent shall not prejudice or affect any right qf appeal of either of the parties to such first-mentioned action." Thirdly, under the recent statute, 30 & 31 Vict. c. 142, s. 10, any person against whom "an action for malicious prosecution, illegal arrest, illegal distress, assault, false im- prisonment, libel, slander, seduction, or other action of tort" is brought in a superior Court may make an affidavit that the plaintiff has no visible means of paying the costs of the defendant should a verdict be not found for the plaintiff, (}) Ohexo V. Holroyd, 8 Exch. 249. question ; Reg. v. Raines, 1 E. & B. (?•) Meg. Y. Harden, 2 E. & B. 188. 855 ; Re Fm-dham v. AJcers, 4 B. & S. But (as stated ante, p. 68) the County 578. See also Earl of Harrington v. Court has cognisance of replevin, even Ramsay, 8 Exch. 879, and 2 E. & B. •where the title to land does come in 669. JURISDICTION OF THE COUNTY COURT. 71 and thereupon a judge of the Court in which the action is brought (s) may make an order that — ^unless the plaintiff shall, within a time to be therein mentioned, give fuU security for the defendant's costs to the satisfaction of one of the Masters of the said Court, or satisfy the judge that he has a cause of action fit to be prosecuted in the superior Court, — all proceedings in the action shall be stayed ; or in the event of the plaintiff being unable or unwilling to give such secu- rity, or failing to satisfy the judge as aforesaid, the judge of the superior Court may make an order that the cause be remitted for trial before a County Court to be therein named ; and thereupon the plaintiff shall lodge the original writ and the order with the registrar of such County Court, who wUl appoint a day for the hearing of the cause, and the County Court so named wiU have all the same 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 therein by plaint. We have shown in the preceding pages that the restric- tions formerly imposed xipon the jurisdiction of the County Court in actions of tort have, under the provisions of the 30 & 31 Vict. 0. 142, been considerably relaxed, and need only further observe, as to this part of our subject, that the jurisdic- tion of the local Court has, by the C. L. Proc. Act, 1860, s. 22, been extended to all cases of replevin (which lies in general where goods have been wrongfully taken), and is no longer confined, as it formerly was, by certain provisions of the stat. 19 & 20 Vict. c. 108 (t), to the case of goods distrained for rent or damage feasant. The consequence of suing in a superior Court for a debt, damage, or demand recoverable in the County Court may be serious, so far as regards the right to costs of the plaintiff (s) See Owens v, Wooman, E. E. 3 Q. B. 469. (t) Sects. 63, et seq. 72 COURTS OF LAW. if successful, for should the plaintiff recover (u) a sum not exceeding 201. if the action is founded on contract, or lOl. if founded on tort, whether by verdict, judgment by default, on demurrer, or otherwise, he will not be entitled to any costs oi 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 allow such costs (v). The mode of distinguishing between an action of contract and an action of tort, in. reference to the above cited clause of the County Court Acts, may be learned from the cases i/iifra (x). taisSction Besidos the matters already noticed as falling within the cognisance of the County Court, that Court has some peculiar branches of jurisdiction, to which the briefest reference must suffice. Thus, by the 9 & 10 Vict. c. 95, s. 65, coupled with the first section of the Extension Act (13 & 14 Vict. c. 61), the County Court may inquire into any demand not exceeding in amount 50?., in respect of " the whole or part of the unli- quidated balance of a partnership account," or " of a distribu- tive share " of personal estate " under an intestacy," or " of any legacy under a will." It follows, therefore, that a partner suing his co-partner in a County Court cannot be met by the objection, Avhich would be fatal to him in one of the Courts at Westminster, of a subsisting partnership {y). Neither can a legatee, suing in a County Court, be met by the objection taken in Beelcs v. Strutt {z), that an action at law will not, in the absence of special circumstances, lie for a legacy. (m) See OoweU v. The Amman Co., 6 H. & N. 265. 6 B. & S. 333. (y) Compare Reea v. Williams, 7 {v) 30 & 31 Vict. 0. 142, s. 5 ; Rol- Exch. 51, and Fuller v. Mackay, 2 E. horow T. Jones, L. R. 4 C. P. U ; & B. 573, with BomU r. Sammorul, 6 Ings T. London and South Western B. & C. 149, where Lord Tentei-den, R. C.,U.n. Grayv. West,L. K 4 Q. C. J., says, that "hetween partners, B. 175 ; Craveny. Smith, L.E. 4Ex.l46. whether they are so in general, or for (x) Tattan t. Great Western R. a particular transaction only, no ac- a, 2 E. & E. 844; Legge v. Tucker, count can be taken at law." 1 H. & N. 500 ; Morgan v. Ravey, (s) 5 t. R. 690 ; Jones v. Tanner, JUKISDICTION OF THE COUNTY COURT. 73 The inferior tribunal here spoken of, besides its jurisdiction by suit or action at law, has recently had conferred upon it an important equitable jurisdiction (a), and may be called on to perform numerous duties under many acts of parlia- ment (b), which cannot here be noticed, and is also, in some cases, invested with power to afford redress of an extraordi- nary kind, as on interpleader (c), or where the possession of any house, land, or other corporeal hereditament is unlaw- fully withheld by the tenant from his landlord; cases re- quiring the exercise of these peculiar powers do not, however, fall properly within the scope or design of the present sec- tion, although more specific allusion to some of them will be made in the Fifth Chapter of this Book, which treats gene- rally of Extraordinar}' Eemedies, 7 B. & C. 542 ; -witli -vrluch compare (6) Emunerated in Poll. & N. County Pears v. Wilson, 6 Ezch. 833. Court Praot. 6tli ed., viii. ix. (a) 28 & 29 Vict. o. 99 ; 30 & 31 (c) See, for instance, 30 & 31 Vict. Viet. c. 142, s. 33. o. 142, s. 31. CHAPTER III. THE NATURE OF RIGHTS ENFORCEABLE BY ACTION. In this Chapter I shall inquire generally (a) as to the nature of that right which gives a remedy at law. To prevent misconception, however, during the progress of this inquiry, I would at the outset observe, that the remedy obtainable in a Court of law is in kind either ordinary or extraordinary — it may be by action, or it may be by mandamus, by sum- mary application to the equitable jurisdiction of the Court, or in various other ways, which will be specified in the concluding Chapter of this Book. At present, however, I shall restrict myself to considering under what circumstances the remedy by action at law is available to an injured party, and what may be the true definition and meaning of the term " right of action " in connection with legal science. Rigtt of -A- " right of action " may, in the words of the Roman law, what? ~ be defined to be jus persequendi in judicio quod sibi de- betur (b), — ^it exists wherever a legal claim to damages, or to the recovery of some specific thing, has accrued ; the action itself being the formal and prescribed mode of procedure whereby the right is vindicated or enforced in a Court of law (c). (a) The inquiry as to tie nature of denote the particular form in which legal rights and remedies is here pur- certain legal proceedings were carried sued generally. I shall return to this on ; from this it was transferred to subject hereafter when treating of Con- signify the legal remedy by which every tracts (Bk. II.) and of Torts (Bk. III.) person might enforce his right." PMl- respectively. limore, Introd. to Rom. L., p. 61. (6) I. i, 6, pr., adopted in Co. Litt. (c) See further as to this, post, Chap. 285 a. In the Roman or Civil Law, 4, Sect. 1. " the word actio was used originally to THE NATURE OF EIGHTS ENFOECEABLE BY ACTION. 75 It follows, from the very terms of the definition just given, that, before commencing an action in any given case, the practitioner must apply himself to consider, 1st, whether any right of action in truth exists ; and, if this question be answered affirmatively, then, 2ndly, what may be the proper and specific method of enforcing it (d). Now, it is not every substantial wrong, still less every imaginary grievance, which affords a right of action for redress. Nor is it true, that for every kind of damage or loss occasioned by the act of another, a remedy is given by the law. It not unfrequently happens, that damage, pal- pable and undeniable though it be, is, in technical phrase- ology, damnum sine injurid, that is, damage, unaccom- panied by any tortious or wrongful act whereof cognisance can be taken in a Court of justice. Here, accordingly, it becomes necessaiy to define respect- ively the words damnum and injwria, or, at all events, to state in what precise sense, ajid with what signification, it is in this volume proposed to use them. The word injuria will be employed as signifying a " legal injana- wrong," that is, a wrong cognisable or recognised as such by the law (e). The word damnum, will be used as signifying Damnum. " damage," not necessarily pecuniary or perceptible, but ap- preciable, and capable, in legal contemplation, of being estimated by a jury (/). Such being the sense properly assignable to the word damnum damnum and to injuria, I proceed forthwith to establish, by apposite examples (g), this proposition, that daTnnmn (d) This latter question -will be dis- S. C, E. B. & E. 646, 622 ; Smith v. cussed, post. Chap. 4, Sect. 1. Thackerah, L. K. 1 C. P. 564. (e) Omne quod non jure fit injurid (g) Such, I may remind the reader, fieri dicitur : Brisson. ad verb. Injuria ; seems to be the only legitimate mode 1 Inst. 158 b. ot proving the proposition stated in the (/) As showing the distinction be- text. Reported cases furnish the best tween damnum and injnria, see Bach- — often the only — evidence of what law house T. Sonomi, 9 H. L. Ca. 603 ; is (ante, p. 20), and every judgment 76 THE NATURE OP RIGHTS sine vnjurid, that is, damage unaccompanied by legal wrong, is not actionable at law. Of the particular kind of damnum just spoken of, the law of contracts does not readily afford us instances ; because, there, the mere breach of a covenant or agreement between parties is in itself an injuria of which our law, acting in accordance with the most elementary principles of juris- prudence, will take notice (h). But when we turn to the consideration of torts or " wrongs independent of contract,'' sufficient examples in affirmance of the proposition above laid down will be found, without much research, to present themselves. In illustration of such damage might be mentioned the loss inflicted on a schoolmaster by the establishment of a rival school adjacent to his own, or on a millowner by the erection of a mill contiguous to his own, and the consequent loss of custom (i), or by an interruption of the current of air to his mill (k). In neither of these cases is there any tor- tious element appai'ent, that is, any injuria or legal wrong upon which an action could be founded {I). It would also be easy to show that a man may, without incurring liability, so use his own property as to cause damage to his neighbour, provided the damnwm he not inju- riosum. For instance, the principle has often been recog- nised, that " one landowner cannot, by altering the condition of his land, deprive the owner of the adjoining land of the privilege of using his own as he might have done before. Thus he cannot, by building a house near the margin of his land, prevent his neighbour from excavating his own land, when delivered becomes part of the law (h) Webb v. Sird, 13 C. B., N. S., of the land : Earn, Sol. Leg. Judg. p. 841 ; S. O., 10 Id. 268. 2 ; Id. Chap. 17. (I) See, also, HOI v. BaUs, 2 H. & (h) Post, Book II. N. 299 ; Coohe v. Wanng, 2 H. & C. (i) Arg. 10 St. Tr. 403 ; 3 Bla. Com. 332 ; SommennUe v. Mirehouse, 1 B. 219. & S. 652, 657, ENFORCEABLE BY ACTION. • 77 although it may endanger the house (m) ; nor from building on his own land, although it may obstruct windows, unless, indeed, by lapse of time, the adjoining land has become sub- ject to a right analogous to what, in the Roman law, was called a servitude " (n). Apposite to this subject are the remarks of North, C. J., in Bamardiston v. Soame (p). " There is sometimes," says he, " damnum absque injurid though the thing be done on purpose to bring a loss upon another without any design of benefit to himself ; as if a new house be erected contiguous to my ground, I may build anything on purpose to blind the lights of that new house, and no action wiU accrue though the malice were never so great (jo) ; much less will it lie when a man acts for his own safety. If a jury will find a special verdict ; if a judge will advise and take time to consider ; if a bishop will delajr a patron and impannel a jury to inquire of the right of patronage ; you cannot bring an action for these delays though you suppose it to be done maliciously and on purpose to put you to charges ; though- you suppose it to be done scienter, knowing the law to be clear ; for they take but the liberty the law has provided for their safety, and there can be no demonstration that they have not real doubts, for these are within their own breasts : it would be very mischievous that a man might not have leave to doubt without so great peril." To take an instance of a different kind : A comment upon a literary production, exposing its follies and errors, and holding up the author to ridicule, will not be deemed a libel ( q), provided such comment does not exceed the limits (m) See Sail v. Mayor, i&e. of Sris- action against a sheriff for a double tol, L. K. 2 C. P. 322. return of members to serve in parlia- (n) Judgm., SmMi. v. Kemrich, 7 C. ment. B. 565-6 ; Bvmphries v. Brogden, 12 (p) See, also, per Lord Wendeydale, Q. B. 739, and cases cited post, pp. 82, OTtaaemore v. Richardn, 1 H. L. Ca. et seq. 388. (o) 6 How. St. Tr. 1099 ; S. C, (q) See the definition of a libel, post. Broom, Const. L. 796. This was an BooTi III. Chap. 2. 78 • THE NATUBE OF EIGHTS of fair and candid criticism, by attacking the character of the writer unconnected with his publication ; and a comment of this description every one has a right to publish, although the author may suffer a loss from it (r). In such a case, although there be damnum there is no injuria ; and even the loss is that which the party criticised ought to sustain, inasmuch as it is presumably the loss of fame and profits to which he was not fairly entitled (s). So " however harsh or hasty, or even untrue may be the conduct of a person speak- ing on a privileged occasion, if he honestly and bond fide believes what he utters to be true, no action will lie : it is damnum, absque injur id " (t). A fortiori, where words are uttered neither actionable per se, nor spoken with reference to a person in his trade or profession, nor productive of special damage, there is in law no injuria, and, consequently, no right of action (u). 4di°(rtion'! Again, an action for seduction is in our law founded upon a fiction ; the basis of this action, when brought even by a father to recover damages for the seduction of his daughter, having " been uniformly placed from the earliest times not upon the seduction itself, which is the wrongful act of the defendant, but upon the loss of service of the daughter, in which service " the parent " is supposed to have a legal right or interest." It has, accordingly, always been held, that, in an action for seduction, loss of service must be alleged in the {r) See -per hard HUenborough, C. J., of tkreats used against Mm, and ma- Oarr v. Sood, 1 Camp. 355 n. ; McLeod liciously and without reasonable and T. WaUey, 3 Car. & P. 311. See Pai-is probable cause to exhibit articles of the T. Leiy, 9 C. B., N. S., 342. peace against another, such a pro- (s) Per lord Hlkniorough, C. J., oeeding would be actionable:" per C(wr V. Mood, supra. Srle, C. J., Steward v (t) Per WiUes, J., JRevis v. Smith, 29 L. J., C. P. 175; S. C, 7 C. 18 C. B. 143 ; ffenderson v. Sroom- B., N. S., 191 ; Fitzjohn v. Machinder, head, 4 H. & N. 569. See Blagrave 9 C. B., N. S., 505 ; S. C, 8 Id. V. Bristol Waterworks Co., 1 H. & N. 78. 369, 383. (u) Post, Book HI. Chap. 2. "If a man were to make false oath ENFORCEABLE BY ACTION. 79 declaration and must be proved at the trial, or the plaintiff ■will fail, notwithstanding the production of evidence conclu- sive as regards the guilt of the defendant ; for the wrong done by his act our law does not esteem per se as an in- juria, using that word in its strict sense, but merely as dam/aum sine injurid, for which, consequently, an action wiU not lie (v). In further illustration of the nature of damnum, sine Action for suing plaia- injurid may be mentioned the case of JDavies v. Jenki/ns (x)^ ^^^ °^' which decides, that an action will not lie against an attorney, , who, being retained to sue for a debt a person of the same name as the plaintiff, by mistake and without malice takes all the proceedings to judgment and execution inclusive against the plaintiff; in this case it is, of course, obvious, that the individual thus sued by mistake would have a good defence to the action, and would, if successful, recover in it such costs as on taxation the law allows. If, however, it be asked, what further remedy he might have for the incon- venience and trouble occasioned him, the answer is, that, in point of law, if the proceedings were adopted purely through mistake, though injury may have resulted to him, it is daTnnum absque injurid, for which no action would lie. Every defendant, against whom an action is unnecessarily brought, experiences some injury or inconvenience beyond what the costs will compensate him for (^). So, again, Acton v. Blundell (z), and Ghasemore v. Rich- Action for ^ ^ ' draining off («) Grinndl v. Wdls, 7 M. & Gfr. (y) Per Solfe, B., 11 M. & W. 756. 1033 ; Evans v. Walton, L. E. 2 C. P. See OottereU v. Jones, 11 C. B. 713 ; 615 ; Terry v. Hutchinson, L. E. 3 CoUms v. CWe, 4 H. & N. 225, 235 Q.B. 599; Marys' s case, 9 Eep. 113 a; (where the Court remark that "it is Thompson v. Boss, 5 H. & N. 16 ; difficult to see that it is actionahle to Hist V. Faux, 4 B. & S. 409 ; Manky induce a third person to bring a wrong- V. Pidd, 7 C. B., N. S., 96 ; JDoAns v. ful action ") ; S. C, Q Id. 131 ; Cas- WUliams, 10 Q. B. 725 ; Eager y. trique v. Behrens, 3 E. & E. 709, 721. ffnTOWood, 1 Exch. 61. Post, Book III. (z) 12 M. & W. 324. See Boath Chap. 4. V. DriscoJl, 20 Day (U. S.), R. 533; (as) 11 M. & W. 745. Rawstron t. Taylor, 11 Exch. 369 ; 80 THE NATURE OF EIGHTS "^SiflT '^'''^ ^'^' specially illustrate the nature of damnum sine weu. injurid. In the former of these cases it is laid down as a proposition generally true, that our law gives to the owner of land all that lies beneath its surface ; whence it follows that the owner may dig beneath such surface at his free will and pleasure ; and if, in so digging, he casually does an injury to his neighbour — as by draining off the water from his well^ such injury cannot, in the absence of any prescriptive right, become the foundation of an action. In Chasemore v. Richards (b), the facts were as under : — The plaintiff, a landowner and millowner, had, for above sixty years, enjoyed the use of a stream, which was chiefly supplied by subterranean water percolating through the substrata. Water which would otherwise have thus supplied the stream was diverted from it by the defendant, an adjoin- ing landowner, who dug on his own ground a well for the purpose of supplying water to the inhabitants of the district. Plaintiff having lost the use of the stream, was held to have no right of action against defendant for thus abstracting the water, which " was of sensible value in and towards the working of the said mill." We thus see that large and distinct classes of cases do occur, in which damage and loss are occasioned to an indivi- dual by the act of another, and yet no redress is given him by the law (c), but if the above cases, and others which might be mentioned to a like effect, were examined with due care, it would be found, that, in thus declining to recog- nise the validity of the claims for pecuniaiy compensation there put forth, our law acts in deference to principles wider Broadhent t. Samsbotham, Id. 602, (6) 7 H. L. Ca. 349 ; New River 617; Hiphms ». Birmi'nglmm and Co., app., Johnson, resp., 2 E. & E. Staffordshit-e Gaslight Co., 5 H. & N. 435 ; Reg. v. Metropolitan Board of 7i; S. C.,6 Id. 250. Worhs, 3 B. & S. 710. («) 7 H. L. Ca. 349 ; ^f. C, 2 H. & (c) Et vide per WiOes, J., 4 C. B., N. 168, distinguished in SbdlyfciTison V. N. S., 345. Ennor, 4 B. & S. 229, 241, 242. ENFORCEABLE BY ACTION. 8] in their operation, and of greater moment to the community at large, than those are, the authority of which it may, at first sight, appear to have impugned. To take for instance, successively, the cases which have been just put as illustra- tive of the nature of legal injuries and wrongs ; as to the first, I would observe, that the existence of the fiction (d) upon which an action for seduction with us is founded seems referable to this elementary principle, that our law does not regard the quality of actions from the point of view which a moralist would select, it does not weigh them in his scales, nor does it allow the mere turpitude of an act, per se, to give it jurisdiction. It usually inquires, rather, whether any and what damage directly estimable by reference to a pecuniary standard has been sustained. Such is the rule which holds generally true in civil cases, although there are exceptions to it ; as, where malice is recognised as an essential ingredient in an actionable wrong (e). The truth of what has been just said does not seem to be at all affected by the fact that a jury may and will, in many cases, be influenced in assessing damages for a wrong by a consideration of the motives which may have prompted to its commission (/). In the second of the three instances above put — that viz. of an action brought unsuccessfully, but which, nevertheless, causes inconvenience and anxiety of mind — nay, even posi- tive loss to a defendant, — the reasons why redress and pecu- niary compensation for the inconvenience so caused cannot be enforced, would seem to be that our Courts of justice are open to all suitors who there seek to prosecute their claims (d) The above remarks are offered criminal justice, or if retained should with a yiew to explaining the existence be independent of the fiction of loss of of the fiction in question in our law — service, by no means in justification of its reten- (e) Post, Book III. tion. It may reasonably be urged that (/) Id., where I shall inquire how the right of action for seduction should far the motive or intention is material either be abolished altogether, the in determining the legal quality and wrong-doer being made amenable to character of an act. 82 ' THE NATURE OF RIGHTS in the manner prescribed by law, and that anything having a tendency to stifle or prevent such inquiry, ex. gr., the fear of being mulcted in heavy costs beyond that comparatively reasonable amount ascertained by taxation, according to the scale allowed by law, would be highly inexpedient {g). In explanation of the last of the instances of damnum sine, injurid above specified, a reference to Aeton \». Blun- dell, and Ghasemme v. Richards Qi) will show, that, although under the circumstances there appearing, two great legal principles were primd facie in conflict, the greater of these was, and justly, allowed to prevail: the principles in appa- rent antagonism were the doctrine lying at the root of what is called the social compact, that the absolute owner of property may deal with it as he likes, and the rule which so restricts the use and enjoyment of property as to prevent injury — i. e., legal injury — to a neighbour. In Acton v. Blundell, or in Chasemore v. Richards, however, no legal injury was in fact done, because no legal right had been invaded, and therefore either case rests in truth upon this broad foundation, that every one may innocently enjoy his own property as he will. Great care is, doubtless, often needed in determining whether or not a particular mode of enjoying property is iilnocent and lawful ; and " the books of Reports," it has been said, " abound with decisions restraining a man's acts upon and with his own property, where the necessary or probable consequence of such acts is to do damage to others." HuwphriM The judgment in Humphries v. Brogden (i), whence the above extract is taken, will be found instructive with refer- (g) In Phillips v. Naylqr, 3 H. & (li) Ante, p. 80. N. 20, Martin, B., asks ; "Suppose a (i) 12 Q. B. 739 (where the previous man knowing that a debt has been paid, authorities ai-e noticed) ; Rowboiham v. brings an action in a superior Court, Wilson, 8 H. L. Ca. 348 ; Richards v. gets judgment, and arrests the defeu- Harper, L. E. 1 Ex. 199. See, also, dant, could it be contended that an HilUm v. H7afa'Aeod, 12 Q. B. 734, and action would lie against him ? " cases cited post. ENFOECEABLE BY ACTION. 83 ence to this subject. There it appeared that the surface of land (by which is meant the superficies and soil lying over the minerals) belonged to one man, whilst the minerals belonged to another; no evidence of title, nor any cove- nant (J) appeared to regulate or qualify the rights of enjoy- ment of the respective occupants, and the question was, whethei- the owner of the minerals might remove them without leaving support sufficient to maintain the surface in its natural state. Now, the jury in this case entirely nega- tived the existence of negligence on the part of the defendant who had worked the mines, and found that he had worked carefuUy and according to the custom of the country, but without leaving sufficient piUars or supports for the superin- cumbent soil. Upon the facts and finding of the jury above set out, the Court of Queen's Bench gave judgment in favour of the plaintiff, and in doing so made some remarks which are apposite for my present purpose. If, they said (A), A., seised in fee of land next adjoining land of B., erect a new house on his land, " and part of the house is erected on the confines of his land next adjoining the land of B., if B. afterwards digs his land near to the foundation of the house of A., but not touching the land of A., whereby the foundation of the house and the house itself fall into the pit, still no action lies at the suit of A. against B., because this was the fault of A. himself that he built his house so near to the land of B., for he could not by his act hinder B. from making the most profitable use of B.'s own land " {l) ; — the case here put offering, conse- quently, an example of damnum absque injuria or damage (j) See Hodgson v. MovUon, 18 politan Board of Works v. Metropo- C. B., N. S., 332. litan B. C, L. R. 4 C. P. 19^ ; 3 Id. (h) Citing 2 Rolle's Atir. Trespass 612 ; Bro^on v. Robins, i Exch. 186 ; (I), pi. 1. cited judgm., Stroyan v. Knowles, 6 (I) See per Watson, B., Rogers y. h. & N. i65 ; Bibby v. Carter, i H. Tayloi; 2 H. & N. 834 ; Mwrdiie v. & jf. 153 ; Wyatt v. Harrison, 3 B. & Blaok, 19 C. B., N. S., 190 ; Maro- Ad. 871. G 2 84 THE XATUHE OF KIGHTS unaccompanied by any actionable wrong. But, on the other hand, the Court proceeded to remark, a man who has land next adjoining to mine cannot dig his own land so near to mine, that thereby my land shall fall into his pit ; and for so doing, if an action were brought, it seems clear, on principles of natural justice, that it would lie. Now, although the existence of such a right to lateral support for land from the adjoining soil manifestly places a restraint on the enjoyment of the adjacent property, the existence and validity of the right in question may nevertheless be sustained by this simple reasoning, that " if the neighbouring owners might excavate their soil on every side up to the boundai-y line to an indefinite depth, land thus deprived of support on all sides could not stand by its own coherence alone," and infinite mischief might thus be caused to an innocent party (m). Arguing by analogy from the legal proposition just stated, the Court of Queen's Bench, in HuTnphries v. Brogden, decided that the owner of the surface of land, while unen- cumbered by buildings and in its natural state, is entitled to have it supported by the subjacent mineral strata. " Those strata may of course be removed by the owner of them, so that a sufiicient support for the surface is left ; but, if the surface subsides, and is injured by the removal of these strata (although, on the supposition that the surface and the minerals belong to the same owner, the operation may not have been conducted negligently, nor contrary to the custom of the country), the owner of the surface may maintain an action against the owner of the minerals for the damage sus- tained by the subsidence " (n). This principle appUes also (m) As to the right of the owner of a RoUnson, i Exch. 170; J^i-ies y. house to support from his neighbour's Williams, 5 Exch. 792, 800, fol- house under various circumstances, see lowed in Biiby v. Carter, i H.'&N. Solomon v. Tke Vintmrs' Co., 4 H. & 153. N. 585 ; liicha,-ds v. Sose, 9 Exch. („) The case oi Ilumphnes v. Brag- 218. See also judgm., Chauntler y. chn, supra, it has been remarked, ENFORCEABLE BY ACTION. where the land in question has been conveyed under sta- tutory powers (o) ; but no right can at common law be claimed by the owner of land for its support by subterranean water (p). In connection with the foregoing case of Humphries v. Brogden may be consulted Smith v. Kenrick (q), — which decided that it is " the natural right of each of the owners of two adjoining coal mines — neither being subject to any servitude to the other — to work his own in the manner most convenient and beneficial to himself, although the natural consequence may be, that some prejudice will accrue to the owner of the adjoining mine, so long as that does not arise from the negligent or malicious conduct of the party " (r), — and Backhouse v. Bonomi (s). I have adverted to the above class of cases at some length, because they are obviously of much practical importance, and serve clearly to show how embarrassing and difficult may be the questions presenting themselves where distinct rights, which in their enjoyment encroach upon each other, are shows cleaxly that the title to the sur- (o) Slliot v. North Eastern R. face of land may be dissevered from C, 10 H. L. Ca. 333. that to the minerals, so that the sur- {p) Popplewdl v. Hodkinson, L. R. face and the minerals may become 4 Ex. 248. separate tenements ; but the presump- (q) 7 C. B. 515, 564 ; Baird r. tion is to the contrary, iudgm., Keyse WiUiamson, 15 C. B., N. S,, 376; v. PoweU, 2 E. & B. 144. aegg v. Dearden, 12 Q. B. 576 ; See Eogei-s v. Taylor, 2 H. & N. Shaw y. Stenton, 2 H. & N. 858. 828 ; Stroyan v. Knowles, 6 H. & N. (r) The defendant occupying a mine 454. situated higher than plaintiff's mine. In connection with Hv/mphrks v. would have no right to be an active Brogden, see Haines v. Roberts, 7 E. & agent in sending water into the lower B. 625 ; S. C, 6 Id. 643 ; Fletcher mine ; Baird v. Williamson, supra. V. Great Western R. C, 4 Exch. 242 ; See BagnaU v. London and North- S. C, 5 Id. 689 ; per Polloch, C. B., WeaternR. 0., 1 H. & C. 544 ; S. C, Solomon v. The Vintners' Co., 4 H. & 7 H. &N. 423. N. 599 ; Buckley v. Shafto, 15 C. B., (s) 9 H. L. Ca. 503 -,8.0., E. B. N. S., 79 ; Smart v. Morton, 5E. &B. & E. 646, 622 ; Smith v. Thacherah, 30 ; AUaviay v. Wagstaff, 4 H. & N. L. R. 1 C. P. 564. 681, 687-8. 86 THE NATURE OF RIGHTS. claimed by different individuals ; the points to be decided in such cases usually being— which of the two rights is subser- vient to the other ? Is the alleged wrongful act damnum absque injurid and irremediable at law ? Injuria sine In deference to the authorities already cited, we may assume that aamnuTn sine %njuna is not actionable at law. And, on this assumption, I proceed to illustrate and explain the correlative proposition — that injuria sine damno (to adopt technical phraseology) does very frequently suffice as the foundation of an action : the above phrase being used to indicate a wrong — remediable at law — ^though not productive of actual damage to the complainant. The phrase appUes only where a legal injury has been done, or where a legal right has been violated. As explanatory of what is meant by injuria sine dnmno, reference may, in the first instance, be made to the great case uMe^' oi Ashby v. White (t), which has much interest in a consti- tutional as well as in a strictly legal point of view. It is here precisely in point, as showing clearly that it is actionable to deprive a man of a right given him, by law, although no damage, loss, or injury has been thereby occasioned. Ashby V. White was an action against a returning officer for Tnali- ciously (lo) refusing to receive the plaintiff's vote at the election of burgesses to serve in Parliament ; and it was held by Lord Holt, C. J., and the House of Lords, that the action well lay, although the candidates in whose favour the vote had been tendered, were in fact elected; the decision proceeding upon this ground, that the plaintiff had a legal right and privilege to give his vote ; and that, having been disturbed in the enjoyment of such right, an (t) 2 Lord Raym. 953, and 14 How. 7 Id. 377 ; per JBlacUurn, J., Pease St. Tr. 695. v, Chaytor, 3 B. & S. 628. See Pryce (w) Malice is essential as an ingre- v. Belcliei; 3 C. B. 58 ; S. C, 4 Id. dient in this injuria when actionable : 866. Tozei- T. Oliild, 6 E. & B. 289 ; S. C, ENFORCEABLE BY ACTION. 87 action was maintainable at his suit against the partj' causing the disturbance. In the course of his celebrated judgment in this case, Lord Holt, after first showing that the riglxt of voting at the elec- tion of burgesses is a privilege of much moment, and that the deprivation of it is an injury, thus proceeds : "If the plaintiff has a right, he must of necessity; have a means to vindicate and maintain it, and a remedy if he is injured in the exercise or enjoyment of it. And, indeed, it is a vain thing to imagine a right without a remedy, for want of nght and want of remedy are reciprocal." Lord Holt then applies himself to one particular argument, which had been urged, viz., that an action was not maintainable because no actual hurt or 'damage had been done to the plaintiff (inasmuch as, although his vote was rejected, the candidates for whom it had been tendered were in fact elected as representatives) ; and observes, that, " surely every injury imports a damage, though it does not cost the party one fai'thing ; " and it is impossible to prove the contrary, he adds, " for a damage is not merely pecuniary, but an injury imports a damage cohere a man is thereby hindered of his right." Now, it is quite clear, that, in thiis speaking, Lord Holt uses the term " injury " as sjnaonymous with " injuria " in its strict sense, i. e., as signifying a wrong recognised as such by the law ; and when so understood, the proposition which he lays down, viewed by the light of subsequent decisions, does not seem to be at all too broadly stated. Another important case exemplifying the phrase injuria ^arzHU v. sine damno is Marzetti v. Williams (x), which decided that an action will lie against a banker, having sufficient funds in his hands belonging to a customer, for refusing to honour his clieque, although the customer did not thereby sustain any actual loss or damage (y). Here the declaration was framed (x) 1 B. & Ad. 415 ; Oumming v. Oon, L. B. 3 H. L. 1. Slumd, 5 H. & N. 95 ; Ch-ay v. John- (y) But it seems clear that the tanker Voules. THE NATURE OF PJGHTS in tort for the breach of duty cast by the custom of trade upon a banker ; but the form of action might have been assumpsit, founded upon the contract implied by law as existing between a customer and his banker, that the latter will pay cheques drawn by the former, provided he has in his hands sufficient funds for that purpose. For a breach of the duty here indicated substantial damages may be awarded (z). Strictly in accordance with Marzetti v. Williams was the Fray^. decisiou in Fray v. Voules (a). That was an action brought by a client against her attorney for consenting to an order for a stet processus, in two actions at suit of the client, " without the authority and consent, and against the will, and contrary to the directions of the plaintiff." Plea — that "in entering the stet processus, and in staying all further proceedings, and in committing the several grievances com- plained of, he (defendant) acted in a reasonable, careful, skilful, and proper manner, and in pursuance of, and in obedience to, and in accordance with the advice, opinion, and discretion of certain counsel learned in the law, then retained and employed by the plaintiff, &c." On demurrer, this plea was held bad for " a retainer to sue with positive directions not to compromise, makes it the duty of the attorney not to compromise ; and if he does so, it is a breach of his duty," for which, whether the action be shaped in contract or tort, nominal damages at all events will be recoverable. Cases of various kinds and complexions, differing from those just cited, might readily be adduced in support of the proposition that injuria sine damno is actionable. Such, in actions founded purely upon contract, is, as we shall hereafter might take a reasonable time to satisfy {z) JloUn v. Steward, 14 C. B. 595. himself as to the genuineness of the (a) 1 E. & E. 839 ; Butler v. , cheque, if presented under suspicious L. R. 2 Ex. 109, and cases there circumstances. See per Maule, J., cited. Eobarts y. Tucker, IC Q„ B. 677. EXFOECEABLE BY ACTIOX. 89 see, the general rule. " Where there is a breach of an express contract," says Parke, J., in Marzetti v. Williams, supra, " nominal damages may be recovered" (6) ; though no damage may really have been sustained (c). So a bare trespass to land (d) — the infringement of a patent or of a copyright — will be actionable. And it has been held, that the tortious invasion, unaccompanied by special damage, of the right to a trade-mark (e) is so (/). The following examples, taken indifferently from various branches of the law, will be found to throw additional light upon this subject : — A libel has been defined to be " a malicious defamation, expressed in printing or writing, or by signs, pictures, &c., tending to injure the reputation of another, and thereby exposing such person to public hatred, contempt, or ridi- cule" (jg). This malicious defamatory statement, when published, constitutes an injuria whence the law will imply damage (h). Again, let us suppose that the plaintiff in an action has obtained judgment and issued a writ of execution against the person of the defendant, and further, that this writ has been placed in the hands of the sheriff to be executed, the (5) 1 B. & Ad. 425. See also Ran- right closely resembling, though not dally. Moon, 12 C. B. 261, and cases exactly the same as, copyright." Per there cited ; Godfrey t. Jay, 7 Bing. Lord Cranworth, 11 H. L. Ca. 533. 413 ; Street v. Blay, 2 B. & Ad. 456 ; (/) Blofeld v. Payne, 4 B. & Ad. Van Wart v. Woolley, 1 Moo. & M. 410 ; Crawshay v. Thompson, i C. B. 520 ; S. C, 3 B. & C. 439 ; Nosottiv. 357 ; Jlod/jers v. NomU, 5 C. B. 109 ; Page, 10 C. B. 643. Morison v. Salmon, 2 M. & Gi-. 385. (c) Per E7ie, J., Goodwin v. Cremer, See Lawson f. The BarJc of London, 18 Q. B. 761. See per Bramwell, 18 C. B. 84 ; Leather Cloth Co. v. B., Cook T, HopewM, 11 Exch. 559. American Leather Cloth Co., 11 H. L. (d) See Lord Holt's judgment in Ca. 523. AsKby Y. White, as published sepa- (c/) 2 Selw. N. P., 13th ed., 981, rately, 1837. See also this judgment citing Digby v. Thompson, 4 B. & Ad. as reported Ld. Eaym. 938 ; 3 Bla. 821. Com. 120, 209. (7i) 2 Selw. N. P., 13th ed., 992. (c) " The right to a trade-mark is h 90 THE NATURE OF EIGHTS plaintiff will then have a right to the detention of the body of his debtor from the moment at which his capture can be effected, continuously, until pajrment of the debt or until the discharge of the defendant in some manner authorised by law. If, then, the sheriff negligently omits to arrest when he might have done so, or if having arrested the defendant, he wrongfully suffers him to escape for ever so short a time, and afterwards recaptures him, the plaintiff will have a right of action against the sheriff without proof of any actual damage (i) ; the reason being, that, in such a case, the law implies damage, on the principle laid down by Lord Holt in Ashby V. Whiie (Jc). If, indeed, the sheriff, after an escape, retake the judgment debtor on " fresh," that is, immediate, pursuit, this fact will be pleadable in bar to an action against the sheriff for an escape ; because, in that case, the debtor is supposed, by a very pardonable fiction, never to have been out of custody, inasmuch as otherwise great hardship might be entailed upon the sheriff (Q. Actsof tres- There is another important class of cases which can hardly pass eviden- . ., i -i i • • p cing title, be passed over in silence, whilst taking notice of the strict legal meaning of the word injuria. I allude to those where it is material to the preservation of a right that its invasion, although productive of no positive or appreciable damage, should not be tolerated or suffered with impunity. Thus, trespass qu. cl. fr. is maintainable for an entry on the land of another, though no real damage be occasioned thereby (m), one main reason being, that repeated acts of going over the land might eventually be relied upon as evidence of title to (i) Clifton T. Hooper, 6 Q. B. 468 ; (l) Ante, p. 87. Arg., Olifbm, t. Williams t. Mostyn, 4M. & W. 145 ; Hooper, supra. Lloyd V. Harrison, 6 B. & S. 36. (I) Siffeway's case,3'Rep.52. Judgm., An action, however, is not maintain- Arden v. Goodaa-e, 11 C. B. 375-6 ; able against the sheriff for negligence in Macrae v. Clarke, L. R. 1 C. P. 403. not levying under a.fi. fa. without proof (m) See Twyman v. K-nowles, 13 C. of actual pecuniary damage : Hobson v. B. 222. TheUuson, L. U. 2 Q. B. 642. ENFORCEABLE BY ACTION. 91 do SO, and thereby the nght of the plaintiff to the absolute enjoyment of the land might be injuriously affected, So, in an action by a commoner for a trespass to his common, evidence need not be given of the actual exercise of rights of common by the plaintiff (n). The proposition may indeed be generally stated that " wherever one man does an act which, if repeated, would operate in derogation of the rights of another, he is liable to an action without particular damage at the suit of the person whose right may be affected " (o). In The Rochdale Canal Company v. King (jp), the declara- tion (which was in case) stated that a certain canal had been made by the plaintiffs in pursuance of the stat. 84 Geo. 3, c. 78, by the 113th section of which the owners of land, within the distance of twenty yards from the canal, were empowered to draw water from it, by means of pipes, for the supply of their steam engines, and for " the sole purpose " of condensing the steam used for working such engines ; the declaration charged that the defendants had "deceived and defrauded the plaintiffs " in this, to wit, that they had used the water drawn from the canal for purposes other than that allowed by the Act, and that the navigation of the canal had been thereby impeded and obstructed. No proof of damage at all, how- ever, was given at the trial, and the question, under these circumstances, was, whether or not the action at suit of the company was maintainable. It was held to be so, on the ground — 1st, that the company, being invested by the legis- lature with certain rights, might, in accordance with the rule (n) Per Taunton, J., 1 B. & Ad. Navigation Co. v. Earl of Romney, 9 426; Wells v. Waikim, 2 W. Bl. C. B., N. S., 575; Woodv. Waud, 3 1233 ; Pindar v. Wadsworth, 2 East, Exch. 7i8, 780 ; Dickinson v. Grarid 154; 1 Wms. Saund. 346 a. See /Mnrtion CajjaZ Co , 7 Exch. 282, com- Kidjill Y. Moor, 9 G. B. 364. mented on in Cliasemore v. Richards, (o) Per Kelly, 0. B., Harrop v. 7 H. L. Ca. 349; S. C, 2 H. & N. Hirst, L. R. 4 Ex. 47. 168 ; Northam v. Hurley, 1 E. & B. (p) 14 Q. B. 122, 136 ; Medway 665. 92 THE NATURE OF RIGHTS laid down in Aslihy v. White (q), sue for an invasion of them, ■without giving evidence of express damage ; 2ndly, that the general principle here applied, — that, although no appreciable damage might possibly be sustained in the particular instance by the wrongful act complained of, yet, inasmuch as the repetition of such act might be made, in time, the founda- tion of a claim to do it, damage, in law, had already been suffered by the plaintiffs, in respect of which an action was maintainable. In Harrop v. Hirst (r) the facts were as under : — the plaintiffs in common with other inhabitants of a particular district enjoyed a customary right at all times to have water from a spout situate in a highway within the district for domestic purposes. The defendant, a riparian owner on the stream which supplied the spout with water, on various occasions prevented such large quantities of water from reaching the spout, as to render what remained insufficient for the inhabitants entitled to use it, an action was held maintainable against the defendant for diverting the water, although the plaintiffs had not themselves suffered thereby any actual personal damage or inconvenience (s). This part of my subject, then, having reference to injuria sine damno, may conclude with a reference to two additional authorities which are directly in support of what has been said : 1st, Embrey v. Owen (t), which was an action on the case for diverting water from a stream, and where the Court in giving judgment observe that " actual perceptible damage is not indispensable as the foundation of an action ; it is suffi- cient to show the violation of a right, in which case the law will presume damage." 2ndly, the judgment of Mr. Justice (5) Ante, pp. 86, 87. inson v. Grand Junction Canal Co, 7 (r) Harrop v. Hirst, L. E. 4 Ex. Exch. 282, 305, and in Sampson t. 43. Hoddinott, 1 C. B., N. S., 590 ; 5. C, (s) Post, Book III., Chap. 3, s. 1. 3. Id. 596. (t) 6 Exch. 353, followed in Bich- ENFOKCKAliLK BY ACTION. 93 Story in Wehh v. The Portland Manufacturing Company (iC) (which was also an action for diverting water), where that able jurist thus expressed himself with regard to the first question which arose in the case, viz., whether, to maintain the pending suit, it was essential for the plaintiff to establish that any actual damage had been sustained by him ? ''I can very well understand that no action lies in a case where there is damnum absque injurid (v), that is, ■where there is a damage done without any wrong or violation of any right of the plaintiff. But I am not able to understand how it can correctly be said, in a legal sense, that an action will not lie, even in case of a wrong or violation of a right, unless it is followed by some perceptible damage which can be established as a matter of fact ; in other words, that injuria sine damno is not actionable. On the contrary, from my earliest reading, I have considered it laid up among the very elements of the common law, that, wherever there is a wrong, there is a remedy to redress it ; that every injury imports damage in the nature of it ; and if no other damage is established, the party injured is entitled to a verdict for nominal damages. A fortiori, this doctrine applies where there is not only a violation of a right of the plaintiff, but the act of the defen- dant, if continued, may become the foundation, by lapse of time, of an adverse right in the defendant; for then it assumes the character, not merely of a violation of a right, tending to diminish its value, but it goes to the absolute destruction and extinguishment of it." Actual perceptible damage, continues Mr. Justice Story, is not indispensable as the foundation of an action. The law tolerates no further in- quiiy than whether there has been the violation of a right. If so, the party injured is entitle to maintain his action for nominal damages in vindication of his right (x). (m) 3 Sumner (U. S.)R. 189, where (v) Ante, pp. 75-86. many of the decisions in our Courts are {x) Judgm., 3 Sumner (U. S.) R. cited and considered. 189 ; Faij v. Prentice, 1 C. B. 828. y-t THE NATUEK OF RIGHTS The examples above cited will probably be thought to have established this proposition, that injuria sine damno is, in a very large class of cases, actionable at law ; there are indeed, as will hereafter appear {y), many wrongful acts, i. e., acts not merely morally wrong and indefensible, but even contra legein, which give no right of action by our law, unless productive of special and substantial damage to the complainant ; for instance, the breach of a public duty or the nonfeasance of something required to be performed by the statute law, would not be actionable at suit of one who had sustained no damage by reason of the breach of duty or of the nonfeasance (z). So, again, mere negligence, fraud, or misrepresentation (a), could not give a right of action unless damage were caused thereby or resulted therefrom ; and where words are spoken not actionable in themselves, special damage must in general be not only averred in the declaration but proved at the trial, in order that an action may be maintainable ; in these and similar cases it is some- times said, that injuria and damnum must combine in order to constitute a right enforceable by action, or, regard being had to the meaning assigned to each of those words at p. 75, we may perhaps say, that in none of the cases just alluded to does the alleged wrong, unless when accompanied by substantial damage, fill out the true measure and concep- tion of a legal injury (h). In Nicklin v. WiUiams, 10 Exch. 267, ruymi, 9 H. L. Ca. 512 ; S. C, E. B. Parke, B. , observes that ' ' every injm-y & E. 622. to a, right imports a damage, as laid {y) Post, Book III. down in the case of Ashhy v. White by (z) Id. ibid. Lord Holt, and adopted and recognised (o) Eastwood v. Bain, 3 H. & N. in several other cases referred to in 738. Webb v. The Portland Manvfaeturing (b) Sometimes a particular statute Co., and Embrey f. Owen." NicUin gives a right of action only where V. WiUiams, supra, was rightly de- damage has been sustained ; see Rod- cided, although some of the dicta con- gers v. Parker, 18 C. B. 112, recog- tained in it may be questionable ; per nised in Lucas v. Tarleton, 3 H. & N. Lord Westbury, C, Backhouse v. Bo- 116, 120. ENFORCEABLE BY ACTION. '95 But, besides cases such as have been hitherto noticed, Damnum et 1 1 -,-,... injuria ■may others present themselves, the distinctive peculiaritv of'^'itog'^B ^ _ ^ ^ ^ ■*■ •'a right of which might be exhibited by saying, tliat the combination '"=''»>°- of the two ingredients of damnum and injuria will there fail, for peculiar reasons, to constitute a ground of action (c). To this latter class may properly be referred every case in Damage too o ^ 1- */ n, 7 Exch. 194 ; Henderson v. would lie on a deed of charter-party) Henderson, 6 Q. B. 288 ; RusseU v. See also Aylett v. Lowe, 2 W. BI Smyth, 9 M. & W. 810 ; Henley v. 1221. Soper, 8 B. & C. 16. See Hutchinson, (I) C. L. Proc. Act, 1852, s. 95 V. GHUnpie, 11 Exch. 798. post, Book II., Chap. 6. (2) See Addison v. Mayor of Pres- 122 ORDINARY REMEDIES. tion (c). But the C. L. Proc. Act, 1852, has abolished rules to compute, and enacts that all judgments by default for debts or liquidated demands in money shall be final, and ■when the amount of damages appears to be substantially a matter of calculation, and not one where an inquiry before a jury is requisite, the Court or Judge may order that a Master shall ascertain and certify such amount (cZ). Detinue. The action of Detinue is, as the term indicates, framed with a view to the recovery of personal chattels unjustly detained (e). It was, even before the C. L. Proc. Act, 1852, often associated with a claim of debt, or, as it was called, was in the debet and detinet. The judgment in detinue was in the alternative, that the plaintiff should recover the goods, or the value thereof (/), (which it was the province of the jury severally to assess, if he could not have the goods them- selves,) and his damages for the detention, and his costs of suit, — thus giving the option to the defendant, who certainly had no right to such a privilege, of either giving up the goods, or paying their value. The 78th sect, of the C. L. Proc. Act, 1854 (g), has remedied this state of the law, by enacting that, whenever money is deemed by the plaintiff an inadequate compensation for the loss to him of the chattel in (c) TMs amount was usually much SucTcling, L. R. 1 Q. B. 585 ; Salli- larger than the sum really due ; but a day v. Holgate, L. R. 3 Ex. 299. memorandum on the writ of execution Detinue is, in strictness, to be ranked addressed to the sheriff directed him with actions ex contractu ; Danby v. to levy the right sum. See C. L. Com., Lanib, 11 C. B., N. S., 423. lat Rep. p 41. For a form of declaration in detinue, (d) See ss. 92—96. since the C. L. Proc. Act, 1852, see (e) Detinue lies against him who once Chilton v. Carrington, 15 C. B. 95. had, but has improperly parted with, And as to the effect of the plea of non the possession of chattels : Com. Dig. detinet, see the Pleading Rules, H. T., "Detinue" (A.); F. N. B. 138 A. ; 1853, reg. 16. Jo'MS V. Bowie, 9 M. & W. 19. So an (/) PhiUipa t. Jones, 15 Q. B. 859. attorney who has lost his client's deed See also Sutton's case, 1 Tr. Bk., 2 is liable in detinue ; Reeve v. Palmer, Mich. Term, 1 Rich. III. 5 C. B., N. S., 84. See Goodmian v. {g) As to which, see Chiitonv.Car- Boycott, 2 B. & S. 1 ; Steadman v. rington, 15 C. B. 730. See also 19 & Hockley, 15 M. & W. 553 ; Donald v. 20 Vict. o. 97, s. 2. ACTION AT LAW. 123 respect of which he is suing, he may apply to the Court to order that "execution shall issue for the return of the chattel detained, without giving the defendant the option of re- taining such chattel upon paying the value assessed ; and that, if the said chattel cannot be found, and unless the Court or a Judge should otherwise order, the sheriff shall distrain the defendant by all his lands and chattels in the said sheriff's bailiwick, till the defendant render such chattel, or, at the option of the plaintiff, that he cause to be made of the defendant's goods the assessed value of such chattel " Qi). Account is a form of action which lies against a bailiff or iccount. receiver, for money which has come into his hands, and for which he is bound to account. This action was found incon- venient in practice, and rather than adopt it, plaintiffs re- sorted for the most part to equity (i). " The use of an action of account," says Gibhs, C. J., in Tomkins v. Willshear (k), " is where the plaintiff wants an account, and cannot give evidence of his right without it." This form of action was rendered all the less frequent by reason of assumpsit being likewise held to lie for a balance of an account, however complicated in its nature (I) ; the practice, moreover, of bringing into open court suits involving the adjustment of such disputes has (A) Wlien the re-delivery of tie v. Marquis, 9 Exch. 145 ; Foster v. chattel had become impossible, — as Ordbh, 12 C. B. 136; AllwoodY. Sey- when charters or deeds were burnt, — - wood, 1 H. & C. 745 ; Clomman v. or when they had been already re- White, 7 C. B. 43 ; Atwood v. Ernest, deliyered before trial, it was competent 13 C. B. 881 ; Oliver t. Oliver, 11 C. to the jury, in this form of action, to B., N. S., 139 ; supra, u. (e). find specially the facts, and confine (i) Taff Vale R. 0. v. Nixon, 1 H. themselves to an assessment of da- L. Ca. 111. mages : see WiUiams v. Archer, 5 (k) 5 Tatmt. 431. Inglis v. ffaiffh, C. B. 318. 8 M. & "W. 769, and oases cited there. As throwing further light upon the But see 19 & 20 Tict. u. 97, b. 9. nature of the action of detinue, see {I) Tomkins v. Willshear, supra ; Turner V. Trustees of Livei'pool Docks, Arnold v. Webb, 5 Taunt. 432, n. (a). 6 Exch. 543 ; Oros^d v. Such, 8 Re LaycocTc v. Pickles, 4 B. & S. 497, Exch. 825 ; S. C, Id. 159 ; Morgan, 506. 124 OKDINARY REMEDIES. become, since the 0. L. Proc. Act, 1854 (m), less common than formerly. By sect. 3 of this statute, if it be made to appear, "at any time after the issuing of the writ, to the satisfaction of the Court or a Judge, upon the application of either party, that the matter in dispute consists whoUy or in part(%) oi Tuatters of mere account, vfhich cannot conveniently be tried in the ordinai-y way, it shall be lawful for such Court or Judge, upon such application if they or he think fit, to decide such matter in a summary manner, or to order that such matter, either wholly or in part, be referred " to such arbitration as is specified in the clause (o). Some modern cases, where the action of account has been employed, and where the older authorities bearing upon it are discussed are below cited (p). covensint. Covenant lies (often concurrently with debt) for the recovery of damages for the breach of a covenant or contract under seal. The main points for consideration accordingly, in reference to this action, will be, what amounts to a cove- nant ? — what constitutes a breach ? The nature of a covenant is hereafter investigated (q) : it is a contract under seal, whereby a party enters into an obliga- tion either to do or to abstain from doing an act, or pledges himself to the truth of certain facts. A breach of covenant occurs wherever he who has en- tered into such a contract fails to carry it out according to the legal meaning and effect of the words which he has used. Annuity. The action of Annuity is met with, though rarely, in the (m) See ss. 3-17 ; C. L. Com., 2nd E. & B. 396 ; Mason v. ffaddon, 6 0. Kep., pp. 5, 6. B., N. S., 526. (ji). Browne v. Emerson, 17 C. B. {p) Eason v. Benderson, 12 Q. B. 361. 986; Beer v. Beer, 12 C. B. 76; (o) InsullY. Moojen, 3 C. B., N. S., Sturton v. Richardson, 13 M. & W. 359 ; Jones v. Beawmont, 1 F. & Fin. 17. gee also Wheeler v. Borne, WiUes, 336 ; Pdlatt v. Marhwick, 3 C. B., N. 208. S., 760. See Van Toll v. Chapiium, 8 {q) Post, Book II., Chap. 1. ACTION AT LAW. 125 old Reports ; it was invented for the recovery of money pay- able by way of annuity, but has long been obsolete (r). Actions arising ex delicto, or founded on tort, are four in Actions ex " ' _ ' delicto. number, viz., trespass, case, trover, and replevin. Trespass is the proper form of action for a direct injury to Trespass. person or to property — i.e., for an injury caused by imme- diate violence or force — actual or implied : actual, as in the case of an assault ; im'plied, as in the case of a wrongful, though peaceful, entiy on land (s). Numerous cases illustrating the nature of this action under cii'cumstances of ordinary occurrence are collected in the Third Book (f) of these Commentaries, to which the reader is referred. The origin of the action on the Gase has been already case. indicated (u). Case, remark the Common Law Commis- sioners in their 1st Report (oc), is a remedy far more exten- sive than any other by action; it lies for what are called consequential injmies — that is, injuries supposed to arise indirectly and consequentially from the act complained" of, — as from slander, whereby the complainant's character is injured ; or from negligent driving, whereby the plaintiff is run over and hurt and the like. A familiar illustration of the difference between trespass which lies for a direct, and case, which lies for a consequential injury, is this : — Suppose a person throws a log of wood on to a highway, and by the act of throwing another person is injured, the remedy under such circumstances is trespass. But if the log reaches the ground, and remains there, and a person falls over it and is injured, the remedy is case, as the injury is not immediately consequent on the act done. So, if the defendant drive his (r) See Com. Dig. : "Annuity" and (t) Of which, see particularly Chaps. "Dett." 2 and 3. («) As showing the distinction be- («) Ante, p. 40. tweeu trespass and case, see Scott v. (x) P. 31. Shepherd, ante, p. 97. 126 ORDINARY REMEDIES. Trover. carriage against that of another, the remedy may be tres- pass ; but if the defendant's servant be driving, the remedy is usually case (?/). Although, formerly, it was deemed essential strictly to pre- serve " the boundaries of actions " (z), yet case was often held to lie equally with trespass upon the same facts (a). Trover is a form of the action on the case. It originally lay for recovery of damages (h) against one who had found goods and refused to deliver them on demand (c) to the rightful owner (d), but converted (e) them to his own use ; and from this fiction of a loss and finding of the goods (all trace of which is lost under the now existing procedure (/) ), the remedy derived its name. Lord Mansfield, 0. J., described this action (g) as being in form a fiction, in sub- stance a remedy to recover the value of personal chattels wrongfully converted by another to his own use. " The form {y) See, per Fortescite, J., Reynolds v. Clarie, 1 Str. 635 ; C. L. Com., 1st Rep., p. 31 ; Post, Book III., of which see particularly Chaps. 1 and 4. See, also, as showing under what circumstances case will lie, Yates v. Eastwood, 6 Exch. 805 ; Woods t. Finnis, 7 Exch. 863, 372 ; CoUett r. London and North Western S. C, 16 Q. B. 984 ; Mushett t. HUl, 5 Bing. N. C. 694 ; Ma/rher v. Kem-icJe, 13 C, B. 188 ; Kiniyside T. Thornton, 2 W. Bla. 1111. (s) Per Baymond, C. J., Reynolds V. Clarice, 1 Str. 635. (a) See Com. Dig. " Pleader, " Action on the Case (A.) ; Nargett t. Nias, 1 E. & E. 439 ; WUliams t. Bolland, 10 Bing. 112, where the earlier cases are collected ; Chandler v. Browghton, 1 C. & M. 29 ; Hartley v.Moxham, 3 Q. B. 701 ; West v. Nibbs, 4 C. B. 172 ; Clegg v. Dea/rden, 12 Q. B., 576 ; Gor- don V. RoU, 4 Exch. 366 ; Sharrod v. London and North Western B, C, i Exch. 580 ; Ash v. Dawnay, 8 Exch. 237 ; Moreton r. JIa/rdern, 4 B. & C. 224. (6) See Reid v. Fairbanks, 13 C. B. 692. (c) Heald v. Carey, 11 C. B. 977. (d) Bridges t. HawTcesworth, 21 L. J. , Q. B. 75 ; Scattergood v. Sylvester, 15 Q. B. 506. (e) Surroughes r. Bayne, 5 H. & N. 296, 301 (where the history and nature of this action are considered) ; Chinery T. Viall, 8 Id. 288 ; Giles t. Taff Vale R. C, 2 E. & B. 822 ; Simmons t. LUlywhite, 8 Exch. 431 ; Glover t. London and North Western R. 0., 5 Exch. 60 ; Powdl v. ffoyland, 6 Exch. 67 ; Mayhew v. Herrich, 7 C. B. 229. See also Buckland v. Johnson, 15 C. B. 145 ; Meyerstein v. Barber, L. B-. 2 C. P. 38, 661 ;. Tomne v. Lewis, 7 C. B. 608. (/) C. 1. Proo. Act, 1852, s. 49. {g) Cooper v. Chitty, 1 Burr. 31. ACTION AT LAW. 127 supposes the defendant may have come lawfully by the pos- session of the goods. This action lies and has been brought in many cases where in truth the defendant has got the pos- session lawfully. . . . This is an action of tort, and the whole tort consists in the wrongful conversion. Two things are necessary to be proved to entitle the plaintiff to recover in this kind of action : 1st, property in the plaintiff; and 2ndly, a wrongful conversion by the defendant " (JC). This form of action, then, is adapted to try the title (i) to personalty — ^though it does not lie for chattels annexed to the freehold (k) ; it is in some respects analogous to trespass de bonis aspoHatis, i.e., for goods taken and carried away ; the latter, however, is founded on possession actual or con- structive, whilst trover is founded on a right of property special or absolute (I), coupled with a right of possession (wi). Force does not enter as an ingredient into the constitution of a right of action in trover (n). Replevin is usually brought for goods taken under a dis- Replevin, tress, but is generally maintainable where there has been a wrongful taking of goods out of the possession of the party who replevies. Thus, in Shannon v. Shannon (o). Lord Redesdale says, that replevin is an action founded upon any taking by another party ; the question to be tried in the action being, whether the party from whom the goods were taken is really entitled to them ? And the above-named (A) See Jewries t. Cfreat Western 504 ; per Pollock, C. B., White v. R. C, 5 E. & B. 802 ; Walker v. MuUett, 6 Exoh. 714 ; I/ythgoe v. !, 10 C. B., N. S., 381. Vernon, 5 H. & N. 180 ; Bwkley v. (j) Waller v. Drakeford, 1 E. & B. Qross, 3 B. & S. 566. 749 ; Manders v. WiUiams, 4 Bxch. (m) Post, Book III., Chap. 3, s. 2. 339. (m) Post, ubi supra. (i) Boffey v. Henderson, 17 Q. B. (o) 1 Sch. & Lef. 324 ; Allen v. 574; The London, &c., Co. r. Drake, Sha/rp, 2 Exch. 352; /omes t. John- 6 C. B., N. S., 748; Judgm., Wilde son, 5 Exch. 862; MeUor v. Leather, v. Waters, 16 C. B. 651 ; Davis v. 1 B. & B. 619 ; Galloway v. Bird, i Jones, 2 B. & Aid. 165. Bing. 299 ; per Parke, B., Oeorge v. (I) Armory v. Ddamirie, 1 Stra. Chambers, 11 M. &. W. 159. 128 ORDINARY REMEDIES. learned Judge further observes that Blackstone, in the 3rd Volume of his Commentaries (p), gives too limited a definition of replevin, for " many old authorities will be found in the books of replevin being brought where .there was no distress." So it is laid down, that, if a " trespasser takes beasts, replevin lies of this taking at election " (g). The action in question is, however, usually brought where goods have been taken under a distress either for rent or damage feasant, and is altogether a peculiar remedy. When a person alleges that his goods have been unjustly distrained he may have them replevied, that is, redelivered to him upon giving security to prosecute an action with effect (r), and without delay, against the distrainer, for the purpose of trying the legality of the distress, and (if the right be determined in favour of the latter) to return the goods (s). The action of replevin was formerly commenced in the Sheriff's Court and continued in one of the new County Courts (t), but now it may be com- menced in any of the superior Courts in the form applicable to personal actions therein (u) ; the Sheriff's powers and responsibilities with respect to replevins having ceased, and the Registrar of County Courts being empowered to grant replevins (os). Actions of The C. L. Proc. Act, 1854, has added to the above Hst of mandamus and injuuo- actions two uew species, viz., the action of Mandarfius {y) and the action of Injunction (z). Mandamus. The proceeding by mandamus is directed towards enabling a plaintiff to enforce on a defendant the performance of any {p) P. 146. see C. L. Proc. Act, 1860, s. 22. (g) Tin. Abr. "Replevin," (B.), (a) 19 & 20 Vict. c. 108, s. 63. Any fol. 2. action of replevin brought in a County (r) 19 & 20 Vict. c. 108, s. 65 ; Court may be removed by certiorari Ogle, 6 E. & B. 571. into a superior Court by the defendant (s) As to payment into Court in upon his complying with the conditions actions of replevin, see C. L. Proc. expressed in Id. s. 67. Act, 1860, ss. 22-24. {y) Ss. 68-77. («) See 9 & 10 Vict. c. 95, s. 119. (s) Ss. 79-82. (m) 19 & 20 Vict. u. 108, s. 65 ; and ACTION AT LAW. 129 duty, " in tlie fulfilment of which the plaintiff is personally interested " (a), and for non-performance of which he has no other equally effectual remedy (6). An action for a man- damus may lie even where no actual damage has been sus- tained (c.) The proceeding by injunction is applicable, after an action injunction, has been brought for a breach of contract, or for any other injury, and is a remedy appropriate for preventing the "repe- tition or continuance (d) of such breach of contract or other injury, or the committal of any breach of contract or injury of a like kind arising out of the same contract, or relating to the same property or right ;" and the plaintiff may also in the same action " include a claim for damages or other redress " (e). 6. Although it is not possible to treat, in this volume, of Parties to Parties to actions with any minuteness, it is, nevertheless, desirable to indicate the general principles which are to be observed and the ordinary rules which are to be followed in determining the selection of the plaintiff and the defendant in a suit at law. For detailed information upon this subject the reader must refer to works of a technical character. I may premise that a mere equitable claim will not support an action at law (/). Thus, a cestui que trust cannot sue his trustee for money due in his capacity of trustee, unless (a) The construction hitherto put by (e) C. L. Proc. Acts, 1854 (s. 79), the Courts upon these words may be and 1860 (s. 32) ; Morgan v. Metro- seen from the following cases : — Benson politan R. C. , L. K. 4 C. P. 97 ; Booth T. PavU, 6 E. & B. 273 ; Ward v. v. Taylor, L. E. 1 Ex. 61 ; Sutton t. Lowndes, 1 E. & E. 940, 956 ; Norris South East. R. C, Id. 32 ; aittlns t. V. h-ish Land Co., 8 E. & B. 612 ; Symes, 15 C. B. 362 ; MayaU v. Hig- Bush T. Beavan, 1 H. & C. 500. Per ley, 1 H. & C. 148. See 25 & 26 Vict. MeOor, J., 3 B. & S. 279. c. 88, ». 21. (6) Bmh V. Beavan, 1 H. & C. 500. (/) Per Erie, J., London and North (c) Fotherhy t. Metropolitan R. C, Western R. C. v. Glynn, 28 L. J., Q. L. K. 2 C. P. 188. B., 192 (citing Allen v. Impett, 8 (d) Be La Rue v. Fortescue, 2 H. & Taunt. 263) ; S. C, 1 E. & E. 652. N. 324 ; Baijlis v. Le Gros, 2 C. B., See Pardoe t. Price, 16 M. & W. 451 ; N. S. 316. Edwards v. Lowndes, 1 E. & B. 81. K 130 ORDINARY REMEDIES. indeed tbe latter has admitted that it is due, and that he holds it in his hands ; in which case he is liable at law (gr). Plaintiffs in . It mav also be stated as a general rule, that no one can actions ex "^ . . contractu, gue upou a Contract unless it was made with him or with his agent, or with some person professing to act for him, and whose act was ratified by him (h). yfbo BhouM Thus the persons executing a specialty, or being expressed specialty, therein as parties to it, may sue thereon (i) : and, though on a covenant running with the land, an assignee of the original grantee, being in of the same estate, has the same right to sue as the party who executed the deed (/<;), it is a rule that where a deed is made inter partes, no one who is not ex- pressed to be a party to the deed can sue on a covenant con- tained in it (Q. Who should For determining who should sue on a simple contract, the Bue on aim- pie contract, tost applicable is this — from whom does the consideration (m) mow (n) ? In some of the older cases, indeed, another test will be found suggested, viz. that the party for whose benefit the contract is made should sue thereon ; this however can- not be accepted as satisfactory at the present day. Joinder of Repoi-ted cases are numerous in which the question has plaintiffs, .,.,.,- ..,«. been discussed, who should be plamtms m sumg on a con- (g) Soward v. BrownhiU, 23 L. J., Wilkinson v. Anglo-Oalifomian, &c. Q. B., 23 ; Roper v. Holland, 3 Ad. Co., 1 Railway Ca. 511. & E. 99 ; cited Judgm. , Kennedy v. (i) Thv/rsby v. Plant, 1 Wms. Sauad. Broun, 13 C. B., N. S., 741. 240 (3), and the notes thereto ; Spen- {li) Per Erie, C. J., Watson v. ceir's case, [1 Smith, L. C, 6th ed., Swann, 11 C. B., N. S., 749. 45. (i) Per Lord BUenborough, C. J., (l) Chesterfidd, Jcc. Co. T. Eawkim, Storer v. Gordon, 3 M. & S. 322 ; 3 H. & C. 677. Higginbottom, v. Surge, 4 Exch. 667. (m) Post, Book 11. , Chap. 1 ; Thomas Per Tindal, C. J., Bwshdl t. Beavan, v. Thomas, 2 Q. B. 851. 1 Bing. N. C. 120. ^As to parties (n) See Crow t. Itogers, 1 Str. 592 ; suing on a deed which they have not Price t. Boston, 4 B. & Ad. 433 ; executed, see Morgan v. Pike, 14 C. B. Tweddle v. Athincon, 1 B. & S. 393; 473 ; Swatmany. Ambler, 8 Exch. 72 ; Robertson t. Wait, 8 Exch. 299 ; Bides Foley V. Addenbroohe, 4 Q. B. 208. v. Gregory, 8 C. B. 378 ; Hartley v. See, too, British Empire Mutual Life Cummings, 5 0. B. 247 ; Cooper v. Ass. Co. V. Brown, 12 C. B. 723 ; Parler, 14 C. B. 118. ACTION AT LAW. 131 tract under seal containing covenants capable of being con- strued as joint or several. The general rule deducible from these cases is that, where a covenant admits of being con- strued as joint, and the interest of the covenantees is joint, they must join in suing upon the covenant (o) ; where, how- ever, the interest of each of the convenantees appears on the face of the deed to be several, the words of the instrument will be taken disjunctively, and the covenant will be con- strued as several ( p) ; and in the case of avibiguity, the language being capable of two constructions, the words should be construed according to the interest of the parties intended to be protected (q). The 19th section of the C. L. Proc. Act, .1860, has deprived these cases of much of their practical importance, by enacting that "the joinder of too many plaintiffs shall not be fatal, but every action may be brought in the name of all the persons in whom the legal right may be supposed to exist ;" and it further provides in case of any question of misjoinder arising, that judgment may be given in favour of such one or more of the plaintiffs as shall be adjudged by the Court to be entitled to recover. Misjoinder, nevertheless, ought to be avoided, and may entail liability for costs (r). The authorities below refer to the joinder of plaintiffs in actions on simple contract (s) to which as well as to those founded on specialty the section above cited applies. The assignment of the beneficial interest in a simple con- tract does not generally transfer the right of suing on it, or, as it is commonly expressed, a chose in action (t) is not (o) Ecdeston v. Clipaham, 1 Wms. (r) C. L. Proc. Act, 1860, s. 19, ad Saimd. 154; Sermnte-v. James, 10 B. fin. ; BelZiTigham v. Clark, 1 B. &'S. & C. 410 ; Thmipion v. EahewiU, 19 332. C. B., N. S., 713. (s) 2 Wms. Saund. 116 (2) ; Eat- {p) Saddon v. Ayers, 1 E. & E. sail v. Griffith, 2 Cr. & M. 679 ; and 118 ; Eophinson v. Lee, 6 Q. B. 964. see Lucas r. Beale, 10 C. B. 739 ; (q) Per Pa/rlce, B., Keightley\. Wat- Clay v. Southern, 7 Exch. 717 ; Mills son, 3 Ex. 723 ; Foley f. Adderibroohe, v. Alderbury Union, 3 Exch. 590. 4 Q. B. 207. (t) Post, Book II., Chap. 3. K 2 ia2 OBDINARY REMEDIES, Principal and agent. assignable (u) ; and hence the necessity for the assignee of a chose in action making provision for suing in the name of the original assignor (u). I shall revert hereafter (v) to the relation of principal and agent, of partner and co-partner, merely mentioning in this place the fundamental rule, that the principal must in general sue for breach of a contract entered into by him through an agent (x), and that co-partners must join in suing for breach of a contract entered into with the fii-m. It will, moreover, with a view to avoiding repetition, be convenient for the present to postpone a consideration of certain associations regulated by the common or the statute law, the rights and liabilities of which in respect of contracts entered into on their behalf may sufficiently be deduced from the remarks hereafter offered respecting them (y). Coverture. The effect of coverturo at common law is to render the wife incapable of entering into a contract as principal. She can only act in such matter as agent of her husband. The relation, however, of husband and wife leads to various rules with respect to suing in actions on contract, which admit of being thus stated : — 1st. The husband must sue alone in respect of any estate and property which are by act of law absolutely vested in him, although they may have accrued to him in right of his wife (z). 2ndly. The wife cannot sue alone, whether the right of action accrued before or after coverture (a). (m) Per BvZler, J., 4 T. R. 341 Tempest t. Kilner, 2 C. B. 308 Howard t. Shepherd, 9 C. B. 297 See per Wigram,, V.-C, Bayshaw v. Eastern Union R. C, 7 Hare, 132 S. C.,2 Mae. & G. 401 ; DePothonier ,. Be Mattos, E. B. & E. 461 ; and see 19 & 20 Yict. c. 97, s. 5. (t>) Post, Book II., Chap. 5, s. 1. {x) Seignior v. Wolmcr, Godb. 361 ; per Lord Ellenborough, C. J. , Sadler v. Leigh, 4 Camp. 196. (y) Post, Book 11., Chap. 5, s. 2. (s) Bengate v. Gardiner, 4 M. & W. 7 ; SavUle v. Sweeney, 4 B. & Ad. 514, 522, 524 ; Bac. Abr. and Com. Dig. "Bar. & Feme;" Bidgood v. Way, 2 W. Bl. 1236 ; Abbot v. Bio- field, Cro. Jac. 644. (a) Divorce 3, vinculo matrimonii, judicial separation, the banishment, attainder, or presumed death of the ACTION AT LAW. 133 Srdly. When the cause of action accrues to the husband during coverture in right of his wife, he may in general elect either to sue alone or jointly with her. Thus if a chose in action is given to a feme covert, the husband may elect to reserve it exclusively for himself, or he may give his wife an interest in it (&). Whenever the wife has such an interest as would survive to her in the event of the husband's death, she may be well joined with him as a co-plaintiff (c). 4thly. The wife must be joined as plaintiff with the hus- band when a complete cause of action has accrued to the feme dum sola, as for breach of covenant, or on a bond, bill of ex- change, or promissory note, or in respect of a debt due to her before coverture, or on a chose in action, which became vested in the feme before marriage, though the cause of action has accrued during coverture (ci) ; or where the cause of action accrues to the wife in autre droit, and would therefore survive to her (e), if she could have sued upon it in her representa- tive capacity (/). 5thly. Before the C. L. Proc. Act 1852 came into operation, the marriage of a feme, whether plaintiff or defendant, whilst an action was pending, caused it to abate, but the 141st sec- husband, may cause an exception to this 659. rule ; see 20 & 21 Vict. c. 85, s. 26 ; {d) Wootton v. St^enoni, 12 M. & the wife of an alien enemy cannot sue W. 129 ; Brereton v. Evans, Cro. Eliz. alone, De Wahl v. Braune, 1 H. & N. 700 ; 1 Wms. Saund., 210 a ; Hart v. 178. As to the custom of the City Stephens, 6 Q. B. 937 ; Scarpdlini v. of liondon, see Cauddl v. Shaw, i Atcheson, 7 Q. B. 864 ; HopTcins v. T. R. 361. Logan, 5 M. & W. 241 ; Sherrington (5) See per Parke, B., Gatm v. v. Yates, 12 M. & W. 855 ; Michbell Madeley, 6 M. & W. 426; Bendix v. v. Alexander, 10 C. B., N. S., 324. Wakeimn, 12 M. & W, 97. See also DaltonY. Midlands. C, 13 (c) Ayling v. Whicher, 6 Ad. & E. C. B. 474 ; Procter v. Brotherton, 9 264 ; Bret t. Cumberland, Cro. Jac. Exch. 486. 309 ; Beadle v. Sherman, Cro. Eliz. (e) See Richards v. Richards, 2 B. 608 ; Arnolds. Bidgood, Cro. Jac. 318 ; & Ad. 447 ; Field v. AlUn, 9 M. & W. Phillisldrh v. PluckwOl, 2 M. & S. 694, 699. 393 ; Brashford v. Buckingham, Cro. (/) Bolinghroke v. Karr, L. R. 1 Jac. 77 ; WUls v. Nurse, 1 Ad. & E. Ex. 222. 65 ; Johnson v. Lucas, 1 E. & B. 134 ORDINARY REMEDIES. tion of that statute remedies this defect, and the action may now " be proceeded with to judgment ;" and further, in case of a judgment for the wife, execution may issue thereon by the authority of the husband without any writ of revivor or suggestion. 6thly. The personal representatives of the wife should sue for a chose in action which accrued to the wife during cover- ture, with which the husband, although he may have sur- vived his wife, has not interfered (gr). Infant, &c. In regard to the capacity of an infant, lunatic, or alien to contract, somewhat will be said hereafter Qi). In respect of a breach of contract committed in the life- time of the contractee, his executors or administrators may in general sue {%). Although a personal representative must always sue in that character, in respect of a contract made with the deceased, yet, when it has been made with himself subsequently to the death of the testator or intestate, he should sue in his individual capacity (]c). Counts for money due to the plaintiff as executor or administrator cannot be joined with counts for money due to him in his private capacity (l). Also, if an action be commenced in the name of a dead man, his representatives cannot Executors and admi- nistrators. (g) Fleet v. Perrins, L. R. 3 Q. B. 536. (h) Post, Book II., Chap. 5, s. 2. (i) Id. ; Stubbs v. Holywell R. C, L. E. 2 Ex. 311 ; Liicy t. Zevington, 2 Lev. 26 ; Morletj v. PolhiU, 2 Vent. 56 ; see per ParTce, B., Raymond V. Fitcli, 2 Cr. M. & B. 692, 594; Rkhetts T. Weaver, 12 M. & W. 718 ; Smith V. SimoTids, Comb. 64 ; King- don V. Nottle, 1 M. & S. 355 ; S. C, 4 M. & S. 53 ; et vide King t. Jones, 4 M. & S. 188 ; Orme v. Broughton, 10 Bing. 537 ; Boei.. Rogers^. Rogers, 2 N. & M. 556 ; Rhodes v. Haigh, 2 B. & C. 346, 347 ; M'Dougal v. Robert- son, 4 Bing. 435 ; Tyler v. Jones, 3 B. & C. 144 ; Clarice v. Crofts, i Bing. 143 ; Knights v. Qitarles, 2 B. & B. 102 ; Moi-eron's ease, 1 Vent. 30 ; 4 Geo. 2, c. 28, s. 1 ; Berwick t. An- drews, 2 Ld. Kaym. 971 ; Allen v. ffophins, 13 M. & W. 94 ; Chamber- lain T. Williamson, 2 M. & S. 408 ; see Judgm., Beckham t. Brake, 8 M. & W. 854 ; S. a, 9 M. & W. 79, and 11 M. & W. 315 ; Bodger v. Arch, 10 Exch. 333. (k) Bolingbroke v. Kerr, L. K 1 Ex. 222. (l) See (ex. gr.), Bavies v. Barnes, 1 H. & C. 451 ; Bdlinghm v. Clark, 1 B. & S. 332. ACTION AT LAW. 135 be substituted as plaintiiFs under the 0. L. Proc. Act, 1852, s. 222 (m). Executors have a joint and entire interest in the testator's goods, and must be joined as plaintiffs, even when one only of them has proved the will (n). It may be laid down generally, that all the remedies which Bankrupt. a bankrupt would have had, if he had not become bankrupt, with respect to his estate, real or personal, whether in pos- session, remainder, or reversion, at the date of the bank- ruptcy, including outstanding debts and assets, vest in his assignees, who may sue, therefore, for them, as also in respect of those contracts which they can adopt and elect to adopt (o). Further, the assignees of a bankrupt partner may sometimes join with a solvent partner in suing for a debt due to the firm (p). Having thus disposed of the right to sue, we come to the ^^^^^^*^ liability to be sued ex contractu ; and here an elementary *'^°'"- rule is, that he must be the defendant in an action on a °o°^™?^* simple contract (q) by whom or on whose behalf such con- tract was concluded (r). Whence it follows that in general the liability upon a contract is not assignable at law (s). The joinder of defendants on a simple contract will of J°g^^°|g course depend upon the character of the contract in question contS.'''" (m) Clay v. Oxford, L. E. 2 Ex. (?) Post, Book II., Chap. 1. 5>. (r) Weib t. Modes, 3 Bing. N. C. (n) Webster v. Spencer, 3 B. & Aid. 732 ; 2 Bl. Com. p. US ; Appleton v. 363. See Venables v. East India Co., Sinks, 5 East, 148 ; Jenkins v. Hutch- 2 Exch. 633 ; StvJ>s v. Stubs, 1 H. & inson, 13 Q. B. 744 ; Hamber v. Hall, C. 257, 265. 10 C. B. 780 ; Stubbs v. Twynam, 7 As to the right to sue on a part-per- C. B., N. S., 719; Stvibs v. Horn, formed contract, see Edwards v. Grace, L. E. 1 C. P. 56 ; Moffatt v. Dickson, supra ; Crosthwaite v. Gardner, 18 Q. 13 C. B. 643. B. 640 ; Wood v. Bdl, 5 E. & B. 773 ; (s) Post, Book II., Chap. 3 ; Fairlie Stubbs T. HolyweU R. C, L. E. 2 v. Benton, 8 B. & C. 400 ; Stewart Ex. 311. V. Fry, 7 Taunt. 339 ; Dickinson v. (o) Post, Book II., Chap. 5, s. 1. Marrow, 14 M. & W. 713 ; Forth v. {p) Heilbut T. Nevill, L. E. 4 C. P. Stanton, 1 Wms. Saund. 210, n. (a) ; 354. Chambers v. Jonss, 5 Exch. 229. 13G ORDINARY REMEDIES. — how far it is a joint or a several, or a joint and several contract (t). In order to charge several persons jointly on a verbal contract, it will not be enough to show that credit was given to them jointly, without some proof of their con- tracting jointly, either expressly or impliedly, or that the work done was for their joint benefit (u) ; and whether the contract in question be written or verbal, it will, in the ab- sence of any express provision or stipulation by the parties themselves, be taken to be a joint, and neither a joint and several, nor a several contract, and all parties liable should be joined in suing upon it {x). Again, if a contract in writing be joint and several, the plaintiff may sue all the contracting parties jointly, or any one individually (i/). ml™'^™*^ On a specialty the party to be sued is indicated by the ciaity. express terms of the deed, and therefore the choice of such party will in general present no difficulty. To make the heir liable, he must be expressly named in the specialty; and when a person by bond or covenant (whether real or per- WLen heir sonal), or, indeed, by any specialty, binds himself and his liable. heirs, the heir and devisee are each liable for the default of the ancestor or testator to the extent of the assets, freehold and copyhold, taken by descent or devise, and they may be jointly sued ; if there be no heir, the devisee may now be sued alone {z). The personal representatives however of an obligor or (t) Per Lord Dennian, 0. J., 1 Ad. (x) Broom's Prac, vol. 1, pp. 354-5 ; & E. 207, 208 ; ICirhy t. Banister, 5 RoUmon v. RudUm, 26 L. J., Ex., B. & Ad. 1069 ; Qihson v. JApton, 9 56. Kng. 297. (y) Zee v. Nixon, 1 Ad. & E. 201. («) Eaden v. Titchmarch, 1 Ad. & (3)11 Geo. 4 & 1 'Win. i, c. 47 ; E. 691; Maddich v. Marshall, 17 1\ k li T\ct. c. i7 ; Bunting y. Shel- C. B., N. S., 829; Armild t. Bain- drahe, 9 M. & W. 256 ; Barbery. Fox, hrigge, 9 Exch. 153 ; Maclae v. Suther- 2 Wms. Saund. 136, 137 b ; Co. litt. land, 3 E. & B. 1 ; FeU v. Ooslin, 7 209 a ; Farleij v. Briant, 3 Ad. & E. Excli. 185 ; Forster v. Taylor, 3 Camp. 847 ; Braithioaite v. Shinner, 5 M. & 49. W. 313. ACTION AT LAW. 137 covenantor are liable to the extent of assets, whether they be named or not ; and when the real and personal repre- sentatives are alike liable, the plaintiff may elect to sue both or either of them separately (a). The joinder of defendants liable on a contract under seal Joinder of defendants may be regulated by these two rules : — 1. When the obliga- onaspe- tion is joint, all parties chargeable should be made co-defen- dants on its breach. 2. When it is in terms joint and several, the covenantee may elect to sue either one or all of the covenantors, notwithstanding their legal interest in the subject-matter of the covenant be joint {h). The leading propositions as to the respective liability of Liability of principal or principal and agent on a contract entered into by the latter, agent. as well as the liabilities consequent on the relationship of persons as co-partners, and of various associations existing Partners, at the common law or by statute, will hereafter be con- sidered (c). On a contract made by a married woman during cover- Coverture. ture (d), inasmuch as she could only have entered into it as agent for her husband, the husband must be sued alone ; but for breach of any contract made by the wife before marriage, or for debts then incurred by her, husband and wife must be jointly sued (e). And when the cause of action has accrued against the feme in autre droit, she must be sued jointly with her husband (/). In certain cases, moreover, either the wife may be sued jointly with the husband or he may be sued alone ; as for (a) Dailies v. Churchman, S Lev. Vin. Abr. "Bar. & Feme" (X.) pi. 189 ; Dairy v. Pepys, Plowd. 439 b ; 15 ; Mitchinson v. Hewson, 7 T. R. and see Book II., Chap. 1. 348 ; RoUmon v. Hardy, 1 Keb. 281 ; (6) Calell V. Vaughan, 1 Wms. Norwood v. Stevemon, Anders. 227 ; Saimd. 291 b, n. (4) ; Eccleston v. Tracey v. M'Arlton, 7 Dowl. 532 ; Clipsham, 1 Wms. Saund. 154 a ; and Evans v. Morgan, 2 C. & J. 453 ; see see King v. Moare, 13 M. & W. 494. Dick v. Tollhausen, 4 H. & N. 695. (c) Post, Book II., Chap. 5, s. 2. (/) Mounson v. Bourn, Cro. Car. (d) Rdd T. TmUe, 13 C. B. 627. 518 ; Kings v. HUton, Id. 603 ; Com. (c) Bac. Abr. "Bar. & Feme" (L.) ; Dig. "Administration" (D.). 138 ORDINARY REMEDIES. rent, due after the marriage but accruing under a lease made to the wife before it {g), or under a lease which the wife has as executrix or administratrix. So, if covenants are made in a lease to husband and wife jointly, they may be joined as defendants in an action on the covenants QC). Executors The general i-ule with regard to executors and adminis- and admi- ° ° BiBtrators. trators (%) is that being personal representatives of the deceased, though not expressly named (Jc), they are liable, to the extent of assets, on all his covenants and contracts broken in his lifetime, and on such as are broken after his death, provided that his skill or taste were not required for their performance (V), and that they were not to be per- formed by him in person or limited expressly to his life- time (m). Thus, in Hambly v. Trott {n), Lord Mansfield lays it down, that, " when the cause of action is money due, or a contract to be performed, gain or acquisition of the testator by the work and labour or property of another, or a promise of the testator, express or implied, — where these are the causes of action, the action survives against the executor." In general, all the executors named in the will — ^unless when any one of them has formally renounced, or has not administered — should be joined as co-defendants (o). bantafptV^ We have seen that the effect of bankruptcy is to divest the (g) Com. Dig. "Bar. &Feme" (Y.). vol. i., p. 488 ; Mm-gan v. Jiavey, 6 ih) Bac. Abr. "Bar. & Feme " (L.); H. & N. 265 ; Judgm., Taylors. Cald- see Lake v. Smith, 1 N. R. 174. well, 3 B. & S. 835. (i) Post, Book 11., Chap. 5, s. 2. (n) 1 Cowp. 375. See Ex parte (h) Williams v. Burrell, 1 C. B. Tindal, 8 Bing. 404 ; J'oweU v. Chu- 402 ; Zock v. Fitrze, 19 C. B., N. S., ham, 7 Taunt. 580 ; 3 & 4 WiU. 4, 96. 0. 42, s. 14 ; 4 & 5 W. & M. e. 24, (l) Siboni v. Kirhman, 1 M. & W. s. 12 ; Prior v. Seinbrov), 8 M. & W. 423 ; Tosher v. Shepha-d, 6 H. & N. 889, 890. 575. (o) As to the Kability of the executor (to) Hyde v. Dean and Canons of of an executor in respect of a devastavit Windsor, Cro. Eliz. 552 ; cited per by the latter, see Coward v. Gregory, nan, J., Penfold v. AUott, 32 L. R. 2 C. P. 153. L. J., Q. B., 67, 68 ; Broom, Prac, ACTION AT LAW. 139 bankrupt of all property in whicli he is beneficially inter- ested ( p) for distribution amongst bis creditors. The most general rule for selecting the plaintiff in an PinintifEsiu _ " o J. action ex action ex delicto, is — ^tbat he must sue ■whose legal right delicto. or property has been affected by the tortious act of an- other (q). The proper plaintiff in trespass qu. cl. fr., according to the Trespass- rule above laid down, is he who is in possession at the time of the trespass — and, as against any one who cannot show a better title, mere possession will suffice to support the action (r). But neither a lessor who is out of possession, nor a mortgagee, who has not entered into possession, can be plaintiff in an action of trespass for a tortious entry on the land leased or mortgaged (s). So in an action of trespass de bonis asportatis, the proper -de bonis -, . . . . , asportatis. plamtiff is he who had either actual or constructive posses- sion of the chattels taken and carried away (t). An auc- tioneer may sue in trespass for the wrongful taking away of goods confided to him for«aIe (u). Where goods and chattels are consigned to him, he has, moreover, a special property in them — not only when they are in his own sale-rooms, but even when in the house of another, if there for the purpose of sale — and he may therefore maintain trespass or trover for them, though not for fixtures (x), nor for damage done to the realty, nor for the removal of growing crops which he has been directed to sell (y). (p) Post, Book II., Chap. 5, s. 1. foi-d, 11 Excli. 19. (a) See per Lord Kenyan, C. J., (t) Smith v. Milles, 1 T. E. 480 ; Dawes v. Peck, 8 T. R. 332. Young r. Sickens, 6 Q. B. 606 ; Bur- (r) See Com. Dig. "Trespass;'' reU v. Sllis, 2 C. B. 295 ; Watson v. Jones T. Chapman, 2 Exch. 803 ; Macguire, 5 C. B. 836 ; White v. Ryan v. €h/rlee, 14 Q. B. 65 ; Ran- Morris, 11 C. B. 1015 ; Brovm t. dall V. Stevens, 2 E. & B. 641 ; Cox Notley, 3 Exch. 219. V. Glue, 5 0. B. 533 ; Holmes v. Wil- (u) Williams v. MUlington, 1 H. son, 10 Ad. & E. 503. Post, Book IIL, Bl. 81, 84 ; Robinson t. Ruttm; 4 B. & Chap. 3, 6. 1. B. 954. (s) See, as to the doctrine of relation (x) Davis v. Danlcs, 3 Exch. 435. in trespass, Barnett v. Earl of Guild- (y) As to who should sue for timber 140 ORDINARY REMEDIES. Trover. Joinder of plaintifTs ex delicto. The nature of the action on the case, elsewhere de- scribed (z), indicates sufficiently the proper party to sue therein. As possession mainly determines who should be plaintiff in an action of trespass, so the right of property, absolute or special (a), coupled with the right of possession, resolves the same question in trover (&). And, indeed, mere posses- sion, as against a wrong-doer, gives the right to maintain trover. Hence, either bailor or bailee of a chattel bailed during pleasure may maintain trover for its wrongful con- version (c). With respect to the joinder of parties as plaintiffs in an action ex delicto, it may be laid down : 1. That where the legal interest affected by a tortious act is joint, they whose joint interest is affected thereby should join in suing for compensation in respect of the injury so occasioned. 2. That where several persons who are severally interested sustain a joint damage, they may sue either separately or jointly — in respect of it (d). 3. That where* the interest and damage are several, there must be separate actions brought by the persons injured in respect of their several injuries (e). severed, see Ward v. Andrews, 2 Chit. 636 ; Channon v. Patch, 5 B. & C. 897 ; 1 Wms. Saund. 322 d, u. (5) ; Bolls Y. Sock, cited 2 Selw. N. P. lath ed., p. 1244. (2) Ante, p. 40. (a) 2 Wms. Saimd. 47 b, d, e, f ; per Lord Loughlorough, C. J., 1 H. Bl. 85. (J) Watson V. Macguire, 5 C. B. 836 ; Sta^leton t. Haymen, 2 H. & C. 918 ; Feltkouse v. BnndZey, 11 C. B., N. S., 869 ; Owen v. Knight, 4 Bing. N. C. 54 ; Mason v. Farnell, 12 M. & W. 683 ; Franklin v. Neate, 13 M. & \V. 481 ; Fenn v. Bittleston, 7 Exoh. 152 ; Northam v. Bowden, 11 Exch. 70. (c) Smith T. Sleap, 12 M. & W. 585, 589 ; Armory v. Bdamirie, 1 Smith, L. C, 6th ed., 315 ; Sutton v. Buck, 2 Tatmt. 302 ; Manders y. Wil- liams, 4 Exch. 339 ; per Lord EUm- borough, C. J., Martini v. Coles, 1 M. 6 S. 147. (d) Coryton v. IMhehye, 2 Wms. Saund. 115, 116, n. (2); WeOer v. Baker, 2 Wils. 423. (e) Co. Litt. 145 b. ; 2 Wms. Saund. 117 a ; Le Fanu v. Malcolmson, 1 H. L. Ca. 637 ; Robinson 1. Marchant, 7 Q. B. 919 ; Wiiliams r. Beaumont, 10 Bing. 270 ; Fm-ster v. Lawson, 3 Bing. 452. See C. h. Proo. Act, 1860, ss. 19, 20. ACTION AT LAW. 141 The husband must sue for all injuries to property — whether Effect of co- "verttire as derived from his wife or not — when such property has been regards ■*■■'■ ^ choice nf reduced into his own possession. For property of the wife ^jf Jfeufto. not so reduced, the wife may be joined as co-plaintiff : the test whether she may be joined or not in any case being, whether the right of action would survive to her (/). In an action for a tort to the person of the wife, compensation may be sought either for the direct injury to the wife in respect of which a right of action would survive to her — ^in which case the h^^sband and wife must join — or for the consequen- tial and special damage to the husband, in which case the husband may sue alone (gr). In regard however to the joinder of claims by husband and wife, the C. L. Proc. ^ct, 1852, s. 40 (/i), enacts, that " in any action brought by a man and his wife for an injury done to the wife, in respect of which she is necessarily joined as co-plaintiff, it shall be lawful for the husband to add thereto claims in his own right, and separate actions brought in respect of such claims may be consolidated, if the Court or a judge shall think fit : Provided that in the case of the death of either plaintiff such suit, so far only as relates to the causes of action, if any, which do not survive, shall abate." The foregoing section is permissive, not imperative (i) ; in virtue of it, a count for breaking and entering the premises of the husband may be joined with a count by the husband and wife, for assaulting and imprisoning the wife (Jc). If the wife survive her husband she may in general sue for injuries done to her person or property either before or (/) Ayling v. Whicher, 6 Ad. & E. & 21 Vict. c. 85, s. 26. 259. (h) See, also, C. L. Proc. Act, 1860, (g) SavUle v. Sweeny, 4 B. & Ad. sa. 19, 20. 523 ; Dengctte v. Gardiner, 4 M. & («') Brochbank v. Whitehaven Junc- W. 7 ; Guy r. lAvesey, Cro. Jac. 501 ; tion R. C, 7 H. & N. 834. Nm-ria v. Seed, 3 Exch. 782; long- (h) JftMris v. Jlfoore, 19 C. B., N. S., meid v. HoUiday, 6 Exch. 761. With 359 ; Eemstead v. Phcenia Gas Co., 3 regard to the effect of judicial separa- H. & C. 745, tion on the right of wife to sue, see 20 nlstrators. 142 OEDINAEY REMEDIES. during coverture (I). The husband may elect to join his wife with him in certain cases, as in trespass to land held in her right, or for obstructing a right of way to land leased to the wife dum sola, or generally when the wife is the meritorious cause of action (m), or had a vested interest directly affected by the tortious act (n). But both the husband and wife must sue jointly for torts to the personal property of the wife which had both their inception and consummation before marriage (o). Further, where the wife has a right.of action in autre droit, she must be joined as co-plaintiff (p). and ad°" ^^® right of personal representatives to sue in tort is given and regulated by the statute law (q). By the 4 Edw. 3, c. 7, reciting, that, " in times past executors have not had actions for a trespass done to their testators, as of the goods and chattels of the same testators carried away in their life- time," it is enacted, " that the executors in such cases shall have an action against the trespassers," in Hke manner as they whose executors they are should have had if they were living. An administrator is within the equity of this statute, and by 25 Edw. 3, st. 5, c. 5, the like remedy is extended to the executors of executors. Again, the 3 & 4 Will. 4, c. 42, provides, upon certain conditions a remedy by the executors or administrators for injuries done to the real estate of any deceased person com- mitted in his lifetime (r). The most important modification, however, of the maxim Actio personalis moritur cum (1) See WaZler v. Brdkcford, 1 E. & nuynd t. Fitch, 2 Cr. M. & E. 588 B. 749. Palgrave v. Windham, 1 Str. 212 (m) Newton v. Boodle, 9 Q. B. 984. BurJmry v. Sewson, 3 Exch. 558 (») WeUer v. BaJcer, 2 Wils. 414 ; Morgan v. Thomas, 8 Exch. 302 and see JSiu/gins v. Durham, 2 Str. Wdchman v. Stm-gis, 13 Q. B. 552 726. Barnett v. Earl of Guildfm-d, 11 (o) Milner v. Milnes, 3 T. R. 627. Exch. 19, and cases cited post, Book H., (p) Serves v. Bodd, 2 N. R. 407. Chap. 5, s. 2. (51) 1 Wms. Saund. 216 a; Le Mason (»•) Sect. 2. V. Dixon, Sir W. Jones, 174 ; Ray- ACTION AT LAW. 143 persond (s) lias been effected by the 9 & 10 Vict. c. 93, (amended by 27 & 28 Vict. c. 95), which was enacted with a view of compensating the families of persons killed by acci- dent, and which the reader will find commented on in Book III. (t). The effect of bankruptcy upon the right to sue in actions Bank- ex delicto will be considered hereafter. The most general rule for choosing the defendant in an Defendants 7 7 . . T T . . -, .ex delicto, action ex clehcto is — that the party committing the tortious act (u), or asserting a right or title adverse to the. plaintiff's, should be made defendant. An ordinary instance illustrating this rule is, that when the owner of land erects on it a nuisance and then demises the land for a term, he will be liable for the erection of the nuisance in the first instance, though either lessor or lessee might be liable for its continu- ance — and, the demise being held to operate as an afiirmance of the nuisance (x), every successive occupier will equally be liable for the continuance of it. With respect to the joinder of defendants in an action ea; joinder of • 1 1 1 n 1 1 • defendants delicto, it may be laid down that all who are concerned in m tort committing the tort complained of, are liable to be jointly sued in respect of it (y). In regard to the joinder of husband and wife in an action J"'"?"^^""^"' (s) Raymond v. Fitch, 2 Cr. M. & WalTcei; 1 Exoh. 589 ; Gauntldt v. E. 597 ; SicJcetts v. Weaver, 12 M. & Kim/, 3 C. B., N. S., 59. See 2Wm3. W. 723 ; Leg. Max., 4th ed., p. 869. Saimd., 6th ed., 117, note (6). Fur- (t) Chap. 2. ther, — as to one partner involving his {u) Post, Book ni., Chaps. 1 — 4. copartners, so as to render them liable {x) Rosewdl T. Prior, 2 Salk. 460 ; to be sued ivith him, see Petrie v. Todd V. Flight, 9 0. B., N. S., 377 ; Zamont, Car. & M. 93 ; Mellors v. jflich V. Basterfield, 4 C. B. 801 ; Rus- Shcm, 1 B. & S. 437 ; Ashworth v. sell V. Briant, 8 C. B. 836 ; recognised Stamoix, 3 E. &. E. 701.— As to the in Lyon v. Knowles, 3 B. & S. 563, 565 ; liability of a corporation for the act of S. C, 5 Id. 751; Holmes y. Wilson, its agent, see Sm,ith\. Birmingham Gas 10 Ad. & E. 503 ; Brent v. Saddon, Co.,1 Ad. & E, 526 ; Eastern Counties Cro. Jac. 555 ; Thompson v. Gibson, 7 R. O. v. Broom, 6 Exch. 314 ; Goff v. M. & W. 456. Post, Book in.,Chap. 2. Great Northern R. C.,ZK k B. 672 ; iy) Per Tindal, C. J., Cranch v. Barwick v. English Jt. Stk. Bank, White, 1 Bing. N. C. 418 ; Sedman v. L. R. 2 Ex. 259. 144 ORDINARY REMEDIES. and wife aa ex delicto, it will sufficG to State that they must be ioined in defendants. . any such action when founded on a tort committed by the wife whilst sole — as in trover where both the finding and conversion were before marriage, — or on a tort committed by the wife during coverture — as an assault or slander by her (z). In respect of a joint battery by husband and wife they may be both sued in one action (a). Executors The 3 & 4 Will. 4, c. 42, s. 2, regulates in some important and admi- nistrators, particulars (6) actions against executors and administrators. It recites that there had been no remedy provided by law for certain wrongs done by a person deceased in his lifetime to another in respect of his property real or personal — and it then proceeds to enact " that an action' of trespass or trespass on the case, as the case may be, may be maintained against the executors or administrators of any person deceased, for any wrong committed by him in his lifetime to another in respect of his property real or personal (c), so as such injury shall have been committed within six calendar months before such person's death (d), and so as such action shall be brought within six calendar months after such executors or adminis- trators shall have taken upon themselves the administration of the estate and effects of such person, and the damages to be recovered in such action shall be payable in like order of administration as the simple contract debts of such person" (e). As to the liability of the managers of Capel v. PoweU, 17 C. B., N. S., 743. a joint-stock company for fraud, see (a) See Vine T. Saunders, i Bing. Cuilen T. Thomson's Trustees, 4 Macq. N. C. 96. H. L. Ca. 424. (b) As to the liability ex delicto of (z) Com. Dig. "Bar. & Feme" (Y.) personal representatives generally, see For slander spoken by husband and wife, Samlly v. Trott, 1 Cowp. 373, 375, there must be separate actions, the one recognised 7 Ad. & E. 429 ; per Lord against the husband and wife, the other Kenyon, C. J., 3 T. K. 549; Com. against the husband only: see Sioithin Dig. "Administration," (B. 15). V. Vincent, 2 WUs. 227. (c) See Morgan v. Saveij, 6 H. & N. As to tort committed by wife during 265. judicial separation from her husband, (d) SicJimond v. Nicholson, 8 Scott, see 20 & 21 Vict. u. 85, s. 26— after 134. sentence of dissolution of marriage. (e) Sss PoweU y. Sees, 7 M. &'E.i2S. ACTION AT LAW. 143 Thus, for a tort to the property of another, whether real or personal, a remedy in trespass, trover (/), or case may now be inforced against the personal representatives of the party originally liable. But neither the above Act nor the 9 & 10 Vict. c. 93 (amended by 27 & 28 Vict. c. 95), the provisions of which are hereafter considered (g), will supply any remedy against the representatives of one deceased who has committed a tort to the person of another, whether death has or has not thence resulted (h). 2. Proceedings from Writ to Appearance. The present practice of our superior Courts of common introduc- ■»•■»■ J- tory re- law, dates from a recent period ; the Common Law Procedure "^arks. Acts of 1852, 1854, and 1860, and the General Rules of Hilary Term, 1853, and of Michaelmas Vacation, 1854, con- taining the materials upon which it mainly rests (i) ; although there are, besides these, certain statutes unrepealed, which regulate special matters of practice. The Procedure Act of 1852 (7c) was enacted with a view to rendering the process, practice, and the mode of pleading in the superior Courts of common law "more simple and speedy." The Procedure Acts of 1854 (f) and 1860 (m) had the twofold object of further amending the practice of these Courts and of enlarging their jurisdiction. The rules of Hilary Term, 1853 (n), are prefaced by an order of the (/) Ward V. Audland, 16 M. & W. tice are issued. 862 ; Ze Mason v. Siaon, Sir W. (i) 15 & 16 Vict. c. 76. Jones, 173, 174 ; and authorities cited (l) 17 & 18 Vict. c. 125. supra, n. (6). {m) 23 & 24 Vict. u. 126. (,g) Post, Book in., Chap. 2. (m) There are two sets of rules of (h) As to the effect of bankruptcy on Hil. T., 1853, viz. , the Practice and the the liability for tort, post. Pleading Eules, which latter came into (i) From time to time additional operation in Trin. T. of that year, rules affecting particular points of Prac- 146 ORDINARY REMEDIES. Judges, that all the then existing written (o) rules of practice in regard to civil actions should be annulled. It will be found, however, that many of these rules have been re- enacted in the same language ; so that we may derive assist- ance in our interpretation of the code now in force, by referring to earlier decisions of the Courts, and the principles laid down by them in analogous cases. Courts of law have always within themselves the inherent power and right to regulate their own practice (p), or, as Alderson, B., has ob- served (q), every Court " must necessarily be entrusted with control over its own rules of practice ; " a remark applicable to inferior as to superior Courts. summons. The writ, of The first step to be taken in an action at law, is that of summoning the party against whom the action is to be brought into the Court in which it is intended to be carried on. Now this is effected in personal and real actions by that particular kind of process which is termed a writ of sum- mons (r). The forms of this wi-it (which may be obtained in blank at any law stationer's) are given in the schedule (A) to the Common Law Procedure Act, 1852, and will be found to be adapted to the three following cases : — 1st, where the defendant resides within the jurisdiction of the Court ; 2ndly, where, being a British subject, he resides out of the jurisdic- tion ; and, Srdly, where not being a British subject, he resides out of such jurisdiction (s). (o) Unwritten rules of practice re- CI. & F. 32. See Fleming v. Ihirdcp, main in force, so far as they are not 7 CI. & F. 43. inconsistent with the rules promul- (g) Ex parte Story, 8 Exch. 199. gated : Begg v. Fm-hes, 13 C. B. (?•) C. L. Proc. Act, 1852, ss. 2— 614. 25 ; S^. v. The Saddlers' Co., 1 B. C. (p) Per Tindal, 0. J., Scales v. Ca. 183. C. L. Proc. Act, 1860, s. 20. Cheese, 12 M. & W. 687 ; MeUish v. (s) As to the writ of summons— Richardson, 1 CI. & F. 235 ; cited per against a trader having prifilege of Orompton, J., 7 H. & N. 343 ; Jack- Parliament, see 12 & 13 Vict. c. 106, son v. OaUoway, 1 0. B. 280 ; per s. 77,— under the Succession Duties Lord Wynford, Ferrier v. Howden, 4 Act (16 & 17 Vict. 51), see E. (J. ACTION AT LAW. 147 It will be convenient, in the first instance, to consider the mode of procedure in the more usual case, viz., where the defendant is resident within the jurisdiction of the Court. Here the writ (which is addressed to the defendant (t) ) commands him to cause an appearance to be entered for him in the action within eight days after service of the writ upon him, inclusive of the day of service, and gives notice that, in default of such appearance being entered, the plaintiff may proceed to judgment and execution in the action. To the writ is subscribed a memorandum as to the period within which it must be served (u), and upon it are certain indorse- ments which will presently be described. Without attempting to enter into an examination of the veiy numerous cases decided under the former practice, with reference to irregularities (w) connected with the writ of summons, attention may with advantage be directed to the following point relating to this subject : A difficulty may sometimes be felt as to the mode of describing a defendant, where he has successively resided at different places. Under such circumstances, he ought to be described as of his last known or supposed place of residence ; for, as observed by Mr. Justice Coleridge, in Downes v. Garbett (x), commenting on words (y) identical with those used in the 2nd section of the C. L. Proc. Act, 1852, " The Act (z) evidently refers to two Mick T., 1853, 9 Exch. 286,— under Olarh v. Smith, 2 H. & N. 753. the Billa of Exchange Act, see Sched. (w) See Boss v. Oandell, 7 C. B. A. to 18 & 19 Vict. c. 67 ; Maliby v. 766 ; Kirk v. Dolhy, 6 M. & W. 636 ; MwrreUs, 5 H. & N. 813. Cantwdl v. EaH of Stirling, 8 Bing. {t) If there are more defendants 174 ; and cases supra, u. (<). than one, all their names should be (x) 2D. & L. 944. comprised in the Tvrit : C. L. Proc. Act, 1852, s. 4 ; see Christie t. BeU, 16 M. & W. 669 ; Brown v. FuUerton, 13 M. & W. 556 ; Goodchild v. Lead' ham, 1 Exch. 706 ; CaldweU T. Blahe, 2 Cr. M. & K. 249 ; Pepper v. Whal ley, 1 Bing. N. C. 71. (s) 2 WiU. 4, c. 39, s. 1. (u) As to date of writ, see sect. 5 ; (y) "In every such writ and copy thereof the place and county of the residence or supposed residence of the party defendant, or wherein the de- fendant shall be or shall be supposed to be." L 2 148 ORDINARY k£MED1KS. states of facts," viz., 1. Where the defendant's residence or supposed residence is known, and he is known or supposed to be residing there. 2. Where he has left his place of resi- dence, and is known or supposed to be in some other place. The description of the defendant's residence, however, whether actual or supposed, ought to be correctly stated in the writ (tt) ; and there is a manifest difference to be noted be- tween the correct description of a supposed residence and the incorrect description of an actual residence, for the latter might be ground for requiring an amendment of the writ, whereas the former would be in truth a compliance with the requirements of the statute (x). Common in- , The common indorsements upon the writ are prescribed by dorsement. ^ i. ./ the 6th and 8th sections of the Act of 1852, the former of which directs that the writ shall be indorsed with the name and place of abode of the attorney who sues it out (y) (if an attorney be employed), or with the address of the plaintiff if it be sued out by him in person. The object in requiring this indorsement is, that the defendant may know whither he may go, with a view to settling the action (z). The 7th sec- tion further provides a mode of compelling an attorney who sues out a writ, to declare whether it was issued by his au- thority (a), and to give the name and abode of his client ; and if it appears that the attorney had not authorised the issuing of the writ, a stay of proceedings may be obtained. The 8th section requires that in aU actions which are brought for payment of any debt (6), the amount of debt and costs shall be stated on the writ. The object of this (which is («) PUhrowY. PUbrow's Atmospheric 596. R a, 3 C. B. 730. (a) Malpass y. MvM, 3 H. & N, (x) King v. EopUns, 2 D. & L. 638. 246 ; Johnson v. Birley, 6 B. & Aid. {y) AUett T. Basham, 5 E. & B. 543 ; Smithy. Bond, 11 M. & W. 326, 1019; Youlton t. Hall, 4 M. & W. (6) Perry y. Patchett, 2 Dowl. 667 582 ; Lloyd y. Jones, 1 M. & W. 549 ; HolU y. Tounff, 2D. & L. 474 Toiy y. EancocTc, 4 D. & L. 385. Sarris y. Holler, 7 D. & L. 319 («) Dawes v. Solom^nson, 6 Scott, See JRobinson v. CottereH, 11 Bx. 476 ACTION AT LAW. 14& called the common indorsement) is sufficiently explained in its concluding words, which inform the defendant, that, " if the amount demanded by the indorsement be paid to the plaintiff or to his attorney within four days from the service hereof, further proceedings will be stayed." The plaintiff will not, however (if the defendant allows the action to pro- ceed), be precluded by his indorsement from recovering at the trial an amount exceeding what is specified therein, though he ought to indorse upon his writ the sum really claimed to be due, because the defendant might otherwise be misled, or even prevented from settling the action (c). If the plaintiff seeks to recover interest upon his debt, as well as the debt itself, he must either indorse upon his writ the amount claimed in respect of interest, or he must state the date from which he claims it (dl). That particular species of indorsement upon a writ of sum- special in- mons, which is called a special indorsement, can only be made in certain cases, viz., when the defendant is resident within the jurisdiction of the Court (e), and the claim hap- pens to be for " a debt or liquidated demand (/) in money, with or without interest, arising upon a contract express or implied," as on a bond, bill of exchange, promissory note, cheque, or other simple contract debt. Under these circum- stances, the plaintiff will be at liberty to make, upon the writ and copy, a "special indorsement" of the particulars of his claim, in a form given in the schedule of the Act. The advantage of making such special indorsement is this : the plaintiff may, if the defendant make default in appearing to the writ, sign final judgment against him (g) for any sum not (c) EUiston V. Robinson, 2 Or. & M. (/) Hodsoll v. Baxter, E. B. & E. ^343. 884 ; Green v. Bickndl, 8 Ad. & E. (d) Chapman v, Becke, 3 D. & L. 715 ; Jacquet v. Bower, 7 Dowl. 831 ; 350 ; Bardell v. Miller, 7 C. B. 753 ; Hall v. Scotson, 9 Exch. 238 ; Bogers Hoddmg t. Stutchfield, 2 D. & L. 597 ; v. Emit, 10 Exch. 474 ; Eeg. Gen. Allen V. Bussey, 4 D. & L. 430. Pr. rr. 19-21. (c) Sect. 25. ig) Roviberry v. Morgan, 9 Exch. 150 ORDINARY REMEDIES. exceeding that indorsed on the writ, together with inte- rest Qi) to the date of the judgment, and a certain sum for costs (i). The special indorsement upon the writ will dis- pense with the necessity of giving particulars of demand (k), unless indeed they be expressly ordered by a Judge (I). The special indorsement will not, however, dispense with the ordinary indorsement, which must always be made under the 8th section of the Act, where the claim is for " any debt." Writ to be When the writ of summons has been duly prepared (in sealed. , . i ■ • /v» accordance with what has been already said) by the plamtiff or his attorney, it must be taken to the Writ Office of the Court in which the action is brought to be authenticated by the seal of the Court (m), and the attorney must then deliver Prfficipe. to the officer a memorandum, called a prcecipe, which con- tains the names of the parties to the action, the name of the attorney issuing the writ, and the date. This memorandum is filed by the officer and may be of use (in case of a fraudu- lent alteration of the date of the writ) — as showing the pre- cise day on which it really issued and on which therefore the action was commenced (n). Service of When the writ has been thus sealed or stamped — ^it must writ. ^ be served upon the defendant or defendants in the action, unless where the defendant's attorney undertakes to appear for him ; for such undertaking, which may be enforced against the attorney by a summary application to the Court or a Judge, will dispense with the necessity of personally serving the writ. 730. By 0. L. Proc, 1852, s. 27, a (k) Rodway v. Lucas, 10 Exch. defendant may be let in to defend after 667 ; Rogers v. Hunt, 10 Exoh. 474. final judgment by default, where the (i) Sect. 27. writ has been specially indorsed upon (h) As to which see post, p. 168. * accounting satisfactorily to a judge for (I) See Fromant v. Ashley, 1 B. & the non-appeai-ance, and disclosing a B. 723. defence on the merits. Warrington v. (nt) See Gibson T. Varley, 7 B. & Leake, 11 Exch. 304 ; Hall v. Scotson, B. 49. 9 Exch. 238. {n) See sect. 5. ACTION AT LAW. 151 It is worthy of remark, that service of the writ is required on grounds of natural justice — which demands that every man shall have notice of legal proceedings instituted against him, in order that he may defend himself accordingly — this proposition, which scarcely needs authority to support it, may be illustrated by cases where it has been held to be a suf- ficient answer to an action upon a foreign judgment in our Courts, that notice of the proceedings abroad was not duly given to the defendant. Thus, in Ferguson v. Mahon (o), to an action on a judgment obtained in the Court of Common Pleas in Ireland, the defendant pleaded that he had never been arrested upon, or served with, nor at any time had notice of any process of the Court at the plaintiff's suit for the cause of action on which the judgment was obtained, and that he (the defendant) had never appeared to the action; and this plea was held good, because, said Lord Denman, C. J., "when it appears, as here, that the defen- dant has never had notice of the proceeding or been before the Court, it is impossible for us to allow the judgment to be made the foundation of an action in this country." Service, then, of the writ of summons being clearly essen- Mode of ' . service. tial, it becomes necessaiy to consider how it must be efif'ected. This is generally done by delivering a copy of the writ to the defendant persoTially, and at the same time showing him the original, if demanded (p). With a view, moreover, to ^^""™' facilitating service of the writ where there are several de- fendants resident in different parts of the country, or where there is a single defendant whose precise residence is not known, it is now competent to a plaintiff (under the 9th sec- tion of the first Procedure Act) to issue " concurrent " writs at any time whilst the original writ is in force, such writs (o) 11 Ad. & E. 179 ; see Meeus v. seq. Theamion, 8 Exch. 638 ; SheO-y v. (p) See Poole V; Gould, 1 H. & N. Profesawrtal Life Ass. Co., 13 C. B. 99, 787; Leg. Max., 4th ed., 114 et 15^ OHDINARY REMEDIES. being stamped with the word " concurrent " and duly dated, and thus to effect service on the defendants or defendant without unnecessary delay (q). Care must, of course, be taken to serve the proper party with the writ (r) ; and how obvious soever may be the truth of this remark, questions of difficulty have sometimes arisen in consequence of the wrong party having been served. Let us consider what course should be adopted by an individual thus •mistakenly served with a writ of summons. In the first place it is clear, that, if the cause proceed to trial, he will have a good defence upon the merits (s) ; but should the plaintiff persevere, either through obstinacy or ignorance, in the action, it is undeniable that much inconvenience and some pecuniary loss may thus be entailed upon the defendant (t). In the case supposed, however, the defendant certainly would not be well advised to disregard altogether the service of the writ, and to take no notice of subsequent proceedings in the action ; for, as remarked in Stevenson v. Thome {u), a defen- dant is not the less liable upon a judgment because he has been sued throughout by a wrong name. He ought, then, at once to inform the plaintiff of his mistake, in order that the proceedings erroneously instituted against him may be dis- continued. But if, instead of adopting this straightforward course, the defendant act as if he were really the individual intended to be sued, and thus lure on the plaintiff with the motive of making him pay costs, the trick will probably be defeated by some interlocutory application to the Court during the progress of the cause, and, if detected, the defen - dant will infallibly be visited with such pecuniary punish- (g) See Cole v. Sherard, 11 Exch. (r) See, for instance, Kelly y. Laio- 482. As to service — on Public Company, rence, 3 H. & C. 1. see C. L. Proo. Act, 1852, b. 16; (s) Chijin y. Chuy, 5 Dowl SSI. Towne v. London and Limerich Steam (t) See Bavies v. Jenkins, 11 M. & Ship Co., 5 C. B., N. S., 730 ;— on W. 745. lunatic, seeKimierley y. AUeyne, 2 H. (it) 13 M. & W. 149. & C. 223. ACTION AT LAW. 153 ■ment in the shape of costs as may be thought to meet the justice of the case (x). . Another case sometimes occurring in practice is where proceedings are had^ and judgment is obtained, against a party who has not been served with a writ. This occa- sionally happens by reason of an attorney appearing for an individual without authority from him ; and in this case the Oourt wiU set aside the judgment and appearance with costs, and leave the plaintiff to recover them (if he can) from the delinquent attorney by summary application to the Court (y). Again — it not unfrequently happens, that a defendant, Evading knowing that a writ has been issued against him, evades service, service of it. Under such circumstances, the 17th section of the first Procedure Act has provided the course which ought to be adopted. The words there used are, that in case it shall appear to the Court or Judge "that reasonable (z) efforts have been made to effect personal service, and either that the writ has come to the knowledge of the defendant, or that he wilfully evades service of the same, and has not appeared thereto," the Court or Judge may order that the plaintiff be at liberty to proceed as if personal service had been effected, subject to such conditions as may seem fit (a). The object of this section is to provide an efficient substitute for the former clumsy and oppressive method of compelling an ap- pearance by distringas (6). Certain statutory provisions have in modern times been Absconding debtor. (x) Walker v. Medland, 1 D. & L. N. S. 816 ; Flower v. AUen, 2 H. & 159 ; Goodered v. Belcher, i C. B. C. 688 ; Barringer v. Mandley, 12 C. 472 ; Richards v. Hardey, 10 Jur. B. 720 ; Wakeley v. Teesdale, 2 L. M. 1057. & P. 85. ( y) Bailey r. Buckland, 1 Exoh. 1, (a) See Tomlinson v. Ooatly, L. R. , 7 ; HvhhaH r. Phillips, 13 M. & W. 1 C. 1'. 230. 702. (6) See per Jervis, G. J., Ba/rringer (z) Gorringe v. Terrewest, 2 L. M. v. Handley, 12 C. B. 720 ; C. L. & P. 12 ; Naef v. Mutter, 12 C. B., Com., 1st Eep. p. 4. 154 ORDINARY REMEDIES. made to protect a creditor, when compelled to sue for reco- very of his debt or for damages, and where there is reason to believe that his debtor is about to quit the country (c). The existing provisions, however, upon this subject are re- pealed as from Jan. 1, 1870, by the 32 & 33 Vict. c. 83, and the stat. 32 & 33 Vict. c. 62 {d), in lieu of them, enacts that after that date a person shall not be arrested upon mesne process in any action ; but where the plaintiff in any action in a superior court, in which, if tioiv brought, the defendant would be liable to arrest, proves at any time before final judgment by evidence on oath, to the satisfaction of a judge, that the plaintiff has good cause of action against the de- fendant to the amount of 50Z. or upwards, and that there is probable cause for believing that the defendant is about to quit England unless he be apprehended, and that the absence of the defendant from England will materially prejudice the plaintiff in the prosecution of his action, such judge may order the defendant to be arrested and imprisoned for a period not exceeding six months, unless and until he has sooner given the prescribed security, not exceeding the amount claimed in the action, that he will not go out of England without the leave of the court. Where, however, the action is for a penalty or sum in the nature of a penalty, other than a penalty in respect of any contract, it shall not be necessary to prove that the absence of the defendant from England will materially prejudice the plaintiff in the prose- cution of his action, and the security given (instead of being that the defendant will not go out of England) shall be to the effect that any sum recovered against the defendant in the action shall be paid, or that the defendant shall be rendered to prison. By the C. L. Proc. Act, 1852, important and beneficial changes have been effected, both as regards the place where (c) See 1 & 2 Vict. a. 110, ss. 3, et seq. ; U & 15 Vict., c. 52, s. 1. {d) S. 6. ACTION AT LAW. ]55 and the time within which the writ of summons may under ordinary circumstances be served. Formerly, the writ could only be served in the county specified therein, or within 200 yards of its boundary ; now it may be served anywhere within the jurisdiction of the Court. Formerly, the period Duration and renewal of duration or continuance of the writ was four calendar °f w"t- months ; now it is in force for six months (/). And although, prior to the Act of 1852, the writ of summons could have been continued by what were called alia^ and. pluries writs (gf), this statute has provided a better mode of renew- ing the writ by a stamp upon the writ itself, " bearing the date of the day, and month, and year of its renewal " (h). If, moreover, a concurrent (i) writ be issued, it may likewise be renewed in tbe same way. By the express words of the Act, " a writ of summons so renewed shall remain in force and be available to prevent the operation of any Statute of Limitations, and for all other purposes, from the date of the issuing of the original writ." Under s. 13, the re- newed writ will, on its production, be evidence of the " com- mencement of the action as of the first date of such renewed writ." If service of the writ be effected, it is requisite that the indorao- date of service be specified in an indorsement on the writ service. within three days after such service (k). The writ of summons is issued to cause the defendant to Appearance. appear to the action, in order that the plaintiff may proceed therewith ; and so essential to the prosecution of the suit was ' appearance ' formerly deemed, that it was necessary for the plaintiff, in default of the defendant appearing, and upon affidavit of personal service of the writ, to enter an appear- ance for him before proceeding in the action. But now, if (/) See Anon., 1 H. & C. 664. B. 262. (g) As to which see Broom's Prac. , (t) See sect. 9. vol. 1, p. 659. (h) Sect. 15 ; Wahdey v. Teesdale, ■ (h) Sect. 11. See Nazer v. Wade, 2 L. M. & P. 85. 1 B. & S. 728 ; Slaci: y. Green, 15 C. lo6 ORDINARY REMEDIES. the defendant omit to appear within the eight days specified in the writ of summons, the plaintiff may, on filing an affidavit of personal service of the writ, proceed as if the defendant had appeared. This may be done under the 28th section of the first Procedure Act, which also makes apparent the disadvantage entailed on a plaintiff {F) who has neglected to indorse his writ specially, when under the 25th section he might have done so, inasmuch as- it provides that the plaintiff shall not in such case be entitled to more costs than if he had made such special indorsement and signed judgment upon non-appearance. How to be The practical mode of entering an appearance to the action is prescribed by the 30th and 31st sections of the statute. It is by delivery of a memorandum in a specified form to the proper ofi&cer of the Court. By the 29th section, an appear- ance may now be entered at any time before judgment, though a defendant appearing after the time appointed by the writ will not be entitled to any further time for pleading or taking any other necessary proceeding in the suit, than if he had appeared within the appointed time. The result of what has been thus far said is, that, where a defendant is resident within the jurisdiction of the Court, a plaintiff may, in most cases, proceed to judgment against him ; because, if the writ is personally served, he may then, on filing an affidavit of such service, sign judgment by de- fault, or in some cases final judgment, under the 27th and 28th sections of the Act. If the defendant cannot be per- sonally served, the plaintiff may then proceed in the manner pointed out by the 17th section (m). And cases cannot very often occur in practice where a serious difficulty will be ex- perienced by a plaintiff, who acts bond fide, in providing an affidavit conformable to the requirements of that section. ^ifwhere Where the defendant is out of the jurisdiction of the (I) Rowlm-y y. Morgan, 9 Exch. (m) See Barringer v. Handley, la 730. C. B. 721 ; ante, p. 153. ACTION AT LAW. 157 Court, it is cleai- that the provisions of the Act above ad- defendant verted to would not apply. Before the C. L. Proc. Act, 1852, j^Miction. the only mode of proceeding in this case (and that a very imperfect one) was by distringas, with a view to outlawry, which, as stated by the Common Law Commissioners in their First Eeport (n), was " in theory a judgment pronounced for contumacy in neglecting to appear in one of the superior Courts to be amenable to proceedings there instituted." It is now abolished by the 24th section of the above-named Act, and in lieu of it a writ may be issued and made avail- able as a means for obtaining final judgment against a defendant, whether he be a British subject or foreigner, resident (o) out of the jurisdiction. Where the defendant is a British subiect (p) residinsr out wrft where •' ^-^^ ° defendant is of the jurisdiction, the plaintiff may now, under sect. 18, ^^"eotreBi- issue a writ in the form contained in the Schedule (A) to the j^uS8 ^<"^- action : these three classes of pleas are clearly distinguishable from each other. The characteristic of a plea belonging to class 1 is this, — that, whilst admitting the allegations con- tained in the declaration to be true, it puts forth new matter to excuse or justify the act charged against the defendant (u) ; in illustration of this class may be mentioned the pleas of son assault demesne, and leave and licence. (p) C. L. Proc. Act, 1852, ». 81. (s) R. G. PI. rr. 8, 12, 17. (5) As to pleading in confession and (*) R. Gt. PI. reg. 8. avoidance, ante, p. 160. (w) Weaver v. Ward, Hob. ISi. See (r) C. L. Proc. Act, 1852, s. 81 ; Tighe v. Cooper, 7 E. & B. 639. and see Id. ss. 80, 82-86. ACTION AT LAW. 177 In a plea falling within the 2nd of the above classes, the complaint set forth in the declaration is likewise admitted to be true ; but matter in discharge of the liability sought to be imposed on the defendant is presented as a defence to the action (x), as, for instance, in a plea of payment, set-off, or the Statute of Limitations ; to each of which pleas, being of frequent occurrence and practical importance, a few remarks wUl be here directed, before considering specifically the third and last class of pleas above mentioned. The form of a plea of payment before action, given by the Payment. first C. L. Proc. Act (y), is as follows, " that before action he (the defendant) satisfied and discharged the plaintiff's claim by payment " {z). If a ready-money transaction takes place, i. e., a simultaneous exchange of goods for money, or a pre- payment of money in anticipation of the consideration being performed, it has been held that the nature of this transac- tion need not be the subject of a special plea, but may be shown under the general issue (a) ; and if payment were made after the action had been commenced, and it were accepted in full satisfaction and discharge of all the causes of action in respect of which it was made, and of damages and costs (6), the fact of such payment would still be a good defence (c). Payment may also be pleaded in satisfaction when the defendant has discharged {d) his debt by giving a (») See an analytical table of defences 312; hut see lAttlechUd v. Banks, 7 to actions on contracts not under seal, Q. B. 739 ; Smithy. Winter, 12 C. B. 1 CMtt. PL, 7tli ed., p. 488 ; Dresser 487. V. OaJmd, 15 C. B. 622 ; Flochton v. (J) Cook v. Hopewdl, 11 Exch. 555. EaU, 14 Q. B. 380. (c) Corhett v. Smnbmne, 8 Ad. & {y) Sohed. (B), No. 40; R. G. PI. E. 673 ; 4m«eK v. /ymif/i, 3DowI.193. reg. 14. {d) Sard v. Rhodes, 1 M. & W. (2) As to satisfying a debt by the 153 ; OaskiU v. Skene, 14 Q. B. 664 ; payment of a less sum than that due, Griffiths v. Owen, 13 M. & W. 58, 64 ; see SOree v. Tripp, 15 M. & W. 23 ; James v. WilMams, Id. 828 ; Bdshaw post,BookII., Chap.2; (JosMiv. /S8;e»e, v. Bush, 11 C. B. 191; Sayer t. 14 Q. B. 664 ; and Note to Cvmher v. Wagstaff, 5 Beav. 415. As to the Wane, 1 Smith, L. C, 6th ed. 301. appropriation of payments to specific (a) Bussey v. Barnett, 9 M. & W. debts, see Leg. Max. 4th ed., 777etseq. N 178 ORDINARY REMEDIES. Tender. Payment into Court. bill or promissory note, taken by the plaintiff as money (e), for the debt, though the latter be greater in amount than the security thus given in satisfaction thereof. A plea of tender (/) is always accompanied in actions ex contractu by payment of money into Court { \ /' " to preserve the peace of the kingdom, and to prevent those innumerable perjuries which might ensue if a man were allowed to bring an action for any injury committed at any distance of time." The leading Statutes of Limitation are 21 Jac. 1, c. 16, with which should be read 19 &20 Vict. c. 97; 3 &4 Will. 4, c. 27 ; 3 & 4 Will. 4, c. 42. In connection with these must be considered 9 Geo. 4, c. 14 (commonly called Lord Tenterden's Act), which was enacted to meet numerous questions which had " arisen in actions founded on simple contract as to the proof and effect of acknowledgments and promises offered in evidence for the purpose of taking cases out of the operation " of the above-mentioned Statute of James. limitation Under 21 Jac. 1, c. 16, s. 1, an uninterrupted adverse of actions— _ < < ^ x ejectment, possossiou for twcuty yoars operated as a complete bar to an c" m° ^' action in ejectment, except under circumstances of disability enumerated in the 2nd section of that statute, viz. infancy, coverture, unsoundness of mind, imprisonment, and absence beyond seas. In these cases, the party who was suffering under disability at the time when the right of entry first accrued, was allowed to bring his action (d) at any time within s&4Wiu.4, ten years after its removal ; and now, under 3 & 4 WiU. 4, c 27. c. 27, s. 2, no person shall make an entry or distress, or bring an action to recover any land or rent (e), but within twenty years next after the time at which the right to make such and cases there cited : Gabriel v. Mottichund, 8 Moore, P. C. C. 4 ; Dresser, 15 C. B. 627. Strithorst v. 6rmm, 3 WUs. 145. (c) 3 Bla. Com., p. 307 ; see also (c) James t. Salter, 3 Bing. N. C. per Story, }., Bell t. Morrison, 1 544, 552 ; Dean and Chapter of Ely Peters (U. S.) K 360. t. Casli, 15 M. & W. 617 ; Doe d. {d) See notes to Nepean v. Doe, and Lansdell v. Gower, 17 Q. B. 589 ; Doe Taylor d. Atkyns v. Horde, 2 Smith, d, ' Badddey v. Massey, Id. 373 ; L. C, 6th ed., pp. 510 et seq. ; Lafond Smith v. Lloyd, 9 Exch. 562 ; Bum- T. Ruddock, 13 C. B. 813, which was frey v. Gery, 7 C. B. 567 ; Mandng decided under sect. 7 of the Statute of v. Phdps, 10 Exch. 59. James. See Ruchmabaye v. Lulloohhoy ACTION AT LAW. 183 entry or distress, or to bring such action shall have first accrued (/) to some person through whom he claims ; or if such right shall not have accrued to any person through whom he claims, then within twenty years next after the time at which the right to make such entry or distress, or to bring such action, shall have first accrued to the person making or bringing the same (g). By the 16th section of the last-mentioned statute, persons under the disabilities enumerated therein are allowed ten years from the termina- tion of such disability, or their representatives the same period from their death or the termination of their disability, whichever shall first happen, to bring actions of the kind now alluded to ; though by a proviso in the 17th section, no such action shall be brought but within forty years next after the right of action shall have accrued. Under the 3 & 4 Will. 4, c. 42, s. 3, all actions of debt {orS&i^ai. rent upon an indenture of demise, or of covenant or debt upon any bond (h) or other specialty, &c., and actions of debt or sci. fa. upon recognisance, shall be commenced and sued within twenty years after the cause of such actions or suits ; and actions for penalties, damages, or sums of money given by statute to parties grieved, within two years after the cause of such actions and suits accruing ; and actions of debt upon any award when the submission is not by specialty, or for any fine due in respect of any copyhold estate, or for an escape, or for money levied on any fi; fa., within six years after the cause of action shall have accrued. The 4th section contains a proviso with regard to persons labouring under the dis- (/) Doe d. Bmyy v. Oxenham, 1 M. \g) Grant v. BUis, 9 M. & W. 113 ; & W. 131 ; Key»e v. PmDell, 2 E. & Forsyth v. Bristowe, 8 Bxch. 716 ; B. 132 ; De Beauvoir v. Owen, 5 MeUing v. Leak, 16 C. B. 652 ; Man- Exoli. 166 ; Cork and Bandon R. C. ning v. Phdrps, 10 Exch. 59. T. Goode, 13 C. B. 618, 826 ; EandaU (h) Sbwrgis- t. Dardl, 4 H. & N. V. Stevens, 2 E. &B. 641; Austin, y. 622; 8. C, 6 Id. 120; Amott v. LlewelZyn, 9 Exch. 276; Doe d. Palmer Bolden, 18 Q. B. 593 ; Kempe v. Gih- V. Byre, 17 Q. B. 366 ; Doe d. Bad- ion, 12 Q. B. 662. deley v. Massey, Id. 373. 184 ORDINARY REMEDIES. abilities therein mentioned (*) ; and the 5th section provides, that in cases of due acknowledgment in writing or payment on account of principal or interest, then the statute shall not preclude an action for the cause acknowledged till twenty years after such acknowledgment (k). Limitation With respect to the period of limitation in actions of of action •*■ ■"■ oontaot^^° simple contract, it is enacted by 21 Jac. 1, c. 16, s. 3, that c^i6°sh. ^11 actions of account and of assumpsit (other than for such accounts as concern the trade of merchandise between mer- chant and merchant (I), their factors or servants), and all actions of debt grounded upon any lending or contract with- out specialty (m), and all actions of debt for aiTearages of rent (n), shall be commenced and sued within six years next after the cause of such action or suit, and not after (o). The 7th section of this Act (j>) relates to persons labouring under 19 & soviet, particular disabilities (which have been revised by the Mer- cantile Law Amendment Act, 1856 (q) ), and enacts, that persons so situated must sue within six years after the par- ticular disability shall have ceased (r). An executor cannot maintain an action for a debt which (i) See 19 & 20 Vict. c. 97, s. 10 ; (o) See Bwrtland v. Jukes, 1 H. & post, p. 186. C. 667, 675 ; Sush ,. Martin, 2 H. (i) Blairy. Ormond, 17 Q. B. 439 ; & C. 311 ; Garden v. Sruce, L. R. 3, Kenype^r. OiMon, 12 Q. B. 662 ; Ooode C. P. 300. T. Job, 1 E. & E. 6. (p) See also as to defendants, 4 & if) With respect to the liniitation of '5 Ann. u. 16, b. 19 ; Fannin v. An- action for Merchants' Accounts, see 19 derson, 7 Q. B. 811 ; Towns v. . & 20 Vict. c. 97, s. 9 ; Webber v. 16 C. B. 123 ; Lane v. Bennett, 1 M. Tivill, 2 Wms. Saund. 124 ; Robinson & W. 70 ; Forbes v. Smith, 11 Exch. V. Alexander, 2, CI. & P. 717, 737; 161. Inglis V. Haigh, 8 M. & W. 769; Pott (g) In respect of the absence beyond T. Clegg, 16 M. & W. 321. seas or imprisonment of the creditor, (m) Cork and Bandon R. O. v. see 19 & 20 Vict. o. 97, s. 10 ; CorniU Goode, 13 C. B. 826 ; Webster v. v. Hudson, 8 E. & B. 429. Kirk, 17 Q. B. 944; tobacco Pipe (r) The term " beyond the seas " is Makm-s' Co. y. Loder, 16 Q. B. 765. defined by 19 & 20 Viet. t. 97, s. (n) See 3 & 4 WUl. 4, c. 27, s. 12. 42. ACTION AT LAW. 185 accrued to his testator, and for which he might have sued more than six years before the issuing of the writ (s). The 9 Geo. 4, c. 14, was passed (so far as it relates to the » g™. 4, hmitation of suits) with the express yiew that a defendant should not lose the benefit of the Statute of James by such an informal or casual acknowledgment of a debt or contract as might previously have been interpreted to bar the opera- tion of the latter statute (t). The 9 Geo. 4, c. 14, does not alter the law as to the effect of an acknowledgment of a debt; it alters only the manner in which the acknowledg- ment must be proved (u). Very numerous cases — some of which are below cited — have been decided as to what is an " acknowledgment " of a debt generally, and what is the effect of the statute here adverted to (x). (s) Penny v. JBrke, 18 C. B., N. S., 393. (t) The 9 Geo. 4, o. 14, s. 1, enacts, " That in actions of debt or upon the case grounded upon any simple con- tract, no acknowledgment or promise by words only shaU be deemed suffi- cient evidence of a new or continuing contract, whereby to taie any case out of the operation of" the 21 Jac. 1, o. 16, "or to deprive any party of the benefit thereof, unless such acknow- ledgment or promise shall be made or confined by or in some writing to be signed by the party chargeable there- by :" ffyde v. Johnson, 2 Bing. N. C. 776 ; Clari v. Alexander, 8 Scott, N. K., 147. The section above cited also makes provision respecting the oharge- abiHty of joint contractors (as to which, see Whttcomb Vr Whiting, 1 Smith L. C, 5th ed., 555, and Note thereto), and proceeds : — "Provided always, that no- thing herein contained shall alter or take away or lessen the effect of any payment of any principal or interest made by any person whatsoever : " ffoUia V. Palmer, 2 Bing. N. C. 713 ; Twney v. DodweU, 3 E. & B. 136 . Maber v. Maber, L. R. 2 Ex. 153 ; Bodger v. Arch, 10 Exch. 333. And see sect. 4 of the Act which applies to set-off. {u) Per WiMams, J., Smith v. Thorm, 18 Q. B. 134 ; Jackson v. Woolley, 8 E. & B. 778. (x) Cornfwth v. Smithard, 5 H. & N. 13, and cases there cited ; Lee v. WUnwt, L. B. 1 Ex. 364 ; Godvdn V. CvUey, 4 H. & N. 373 ; Waiier v. Butler, 6 E. & B. 506 ; Sackham v. Marriott, 1 H. & N. 236 ; S. 0., 233, 196 ; Collis V. Stack, 1 H. & N. 605 ; ffolmes V. Mackrdl, 3 0. B., N. S., 789 ; Tanner v. Smai-t, 6 B. & C. 603 ; Buckmaster v. RusselX, 10 C. B., N. S., 745 ; Cocknlly. Sparkes, 1 H. & C. 699 ; Tippets v. Seane, 1 Cr. M. & R. 252 ; Sooper v. Stephens, 4 Ad. & E. 71 ; WiUiams v. Gnffith, 3. Exch. 335 ; Mowcutt v. Bonser, Id. 491 ; Sims V. Bnitton, 5 Exch. 809 ; Foster V. Dawber, 6 Exch. 839 ; Twney v. DodweU, 3 E, & B. 136 ; Cleave v. Jones, 6 Exch. 573 ; Davies v. Ed- wards, 7 Exch. 22 ; Bamfidd v. Tup- 1^6 ORDINARY REMEDIES. Limitation With regard to actions ex delicto, the respective periods of of actions , . ° > ± i. ex delicto, limitation assigned by the Statute of James above men- tioned are as follows : — in trespass, qu. cl. fr., or de bonis asp.; in trover, detinue {y), replevin and case (z) (except for slander), six years ; in trespass for assault, battery, or false imprisonment (a), four years ; and in case for slander, two years. Besides the enactments as to the limitation of actions just considered, special provisions occur in various other statutes respecting the time within which particular actions must respectively be brought (6). Such provisions are in general framed for the protection of certain classes of defen- dants on grounds of public policy. Whenever a Statute of Limitation is primd facie pleadable, the precise point of time from which it appears to run should carefully be marked (c), and likewise the legal status of the party entitled to sue at that epoch, the maxim of law being contra non valentem agere nulla currit prcescriptio ; con- formably to which rule the several provisions with respect to ' disability,' already {d) mentioned, suspend the operation of the statute in question until such disability has ceased. So soon, however, as a complainant has a right to commence an action, the statute begins to run ; ex. gr., if by an agreement per, Id. 27 ; Evans r. Simon, 9 Exch. X>ui;e of Brunswick v. Rarmer, li Q. 282 ; Gawley v. Fv/rndl, 12 C. B. B. 185 (which was an action for libel) ; 291 ; Kempey. Gibbon, 12 Q. B. 662; Imperial Gas Co. v. London Gas Co., Smith T. Thome, 18 Q. B. 134 ; WU- 10 Exch. 39. lins V. Smith, 4 E. & B. 185 ; Bradley (a) Coventry v. Apsley, 2 Salk. 420. T. James, 13 C. B. 822 ; Runter v. (b) See 31 Eliz. c. 5 (as to which see Gibbons, 1 H. & N. 459 ; Everett v. Dyer v. Best, L. R. 1 Ex. 152) ; 4 & Babertson, 28 L. J. Q. B. 23 ; 5 Anne, c. 16 (as to which see Lam v. Francis v. Hawhesley, Id. 370 ; Goode Bennett, 1 M. & W. 70) ; 24 Geo. 2, T. Job, Id. 1 ; Bush v. Martin, 2 H. c. 44, s. 8 ; 5 & 6 Vict. u. 97; 9 & & C. 311. 10 Vict. u. 93 ; 9 & 10 Vict. c. 95, ». (y) See Plant t. CotteriU, 5 H. & N. 138 ; 11 & 12 Vict. o. 44, s. 8. Ante, 430. p. 115. (z) Bachhouse t. Bonomi, 9 H. L. (c) See, for instance, Garden i. Ca. 503 ; Smith v. Thacherah, L. R. Bruce, L. R. 3 C. P. 300. 1 C. P. 564 ; Whitehouse ACTION AT LAW. 199 which has been adduced, with a view to their delivering their verdict on the issues presented by the record for their determination. Although in theory it is the office of the jury to deliver Province of theii- verdict on all the issues of fact raised by the pleadings, yet in practice, where these issues are numerous, or the evidence before the Court is complicated and difficult in its legal application, the direction of the judge will not only assist the jury in the elucidation of the evidence and its connection with specific issues, but it will virtually determine — as indeed it ought to do — how these latter are to be found and entered on the record. That the jury may persist in finding on any issue contrary to the expressed opinion and direction of the judge, is undoubtedly true; but if this should subsequently be made apparent (in a mode which will be presently explained) to the Court in banc, the verdict might be set aside as being against evidence, or perverse. The jury, however, are usually content to exercise the discretionary power confided to them, subject to and in accordance with the advice or suggestions proifered by the judge. Another important point to be here noticed is, that, under special the direction of the judge, the jury may return a special verdict, in which the facts of the case are found, and may leave the Court subsequently to pronounce as to the legal effect and signification of such verdict. Again, as in the exercise of his authority to rule on matters Directing of law at the trial, the judge frequently directs a nonsuit or a fngiel™ to ' 1 1 1 / \ * 1 IT enter ver- verdict for either party to be entered (r), without calling on diet or non- the jury to interfere ; so he may reserve for the consideration of the Court in banc a point which, if then decided by him, would determine the verdict (s). To do this, the consent of the party in whose favour the opinion of the judge inclines, (r) See Allm v. Cai-y, 7 E. & B. B. 251 ; Eames v. Smith, 1 Jur., N. S., 463. 1025. («) See Siordet v. KucynsH, 17 C. 200 ORDINARY REMEDIES. Nonsuit, Bill of ex- ceptions. must be obtained ; but if the other side have leave to bring the question subsequently for argument before the Court, then, according to the determination of the latter tribunal thereon (who deal with it as the judge at Nisi Prius, might have dealt with it had he been so pleased), the verdict or nonsuit will, according to leave reserved, be entered or set aside {t). A ' nonsuit,' just alluded to, occurs when a plaintiff withdraws (u) from the contention at Nisi Prius, either because be is satisfied that he cannot then support his case, or upon the judge expressing his opinion (x) that the action is not maintainable. It remains, indeed, notwithstanding the opinion so judicially expressed, within the discretion of the plaintiff himself, to submit to be nonsuited {y) — a course which it will in general be prudent to adopt, inasmuch as if the verdict, in deference to the judge's direction to the jury, be against him, his right of action would be barred ; but should he be only nonsuited, he may re-assert his claim at some future time. Further, a bill of exceptions may be tendered at the trial to the judge by either side, if dissatisfied with his direction in point of law to the jury, or with his ruling as to the ad- missibility and legal effect of evidence in the case. This bill of exceptions, when tendered, the judge is bound to seal(2!), that the matter therein stated (having been first attached to («) As to carrying the decision of the Court into error, see C. L. Proc. Act, 1854, s. 34. Only those points made at the trial can be argued either on ap- peal or in the Court helow : per Cole- ridge, J., and WUliams, J., Cuthbert T. Cummings, 11 Exch. 405. (m) ' ' At common law, the subject has a right to be nonsuited at any stage of the proceedings he may please, and thereby to reserve to himself the power of bringing a fresh action for the same subject-matter : " per Parke, B., Ov,th- waite T. Hudson, 7 Exch. 381. (as) ffarman ». Johnson, 3 Car. & K. 272 ; Briers r. Rust, Id. 294. See Hutching v, HoUingwoi-th, 7 Moo. P. C. C. 228. iy) See A lexander v. Parker, 2 C. & J. 133 ; Corsar v. Reed, 17 Q. B. 640 ; per Parke, B., StancUffe f. Clarke, 7 Exch. 446. (z) Black V. Jones, 6 Exch. 213. See Newton v. Boodle, 3 C. B. 795 ; Earl of Glasgow t. Hurlet and Cawpsit Alum Co., 3 H. L. Ca. 25. ACTION AT LAW. . 201 the record, and thus made part of it) may be submitted to a Court of error (a). To the judge also appertains the duty of granting or with- Certificate holding in certain cases his certificate as to costs ; the effect of which under various provisions of the County Court Acts has been already adverted to (6). Other statutes also, under certain circumstances, impose upon a successful plaintiff the necessity of obtaining from the judge at Nisi Prius a certifi- cate, to enable him to recover costs. Of statutes entitling to costs, or depriving of them, and of the forms of certificates given in pursuance of them, a list will be found in the works which are below cited (c). It may be remembered, also, that the extra costs of trial by a special jury {d) are thrown upon the party applying for it, whatever the verdict may be, unless the judge certifies that the case was one suitable to be so tried. Further, it is within the discretion of a judge at Nisi jury dis- Prius, under particular circumstances, to discharge the jury "wiien. from giving any verdict, as where they cannot agree therein, and the judge sees fit to excuse their so doing (e). The verdict, having with the judicial assistance above indi- signing cated been delivered, is by the associate shortly minuted on the back of the record (/), after which the successful party (if not prevented by proceedings prjesently to be noticed) will be entitled to sign judgment (g), with a view to issuing execu- tion thereon. And with respect to the time within which (a) 13 Edw. 1, 0. 31, s. 11 ; Money As to the effect of withdrawing a V. Leach, 3 Burr. 1742. See also C. juror, see pei Pollock, 0. B., Gibbs v. h. Proc. Act, 1854, ss. 34-42. Jlalpk, 14 M. & W. 805 ; per Lord (J) Ante, p. 72. Abinger, C. B., Harries t. Thomas, 2 (c) See Scott on Costs, 3rd ed., pp. M. & W. 37-38. 915-918 ; Selw. N. P. 13th ed., vol. i. (/) This, when formally drawn up pp. 390 et seq. ; Gray on Costs, Chaps. and indorsed on the record, is called i. and viii.-xiT. the Postea. {d) As to trying by a special jury, (g) When the costs are taxed and see E. Gr. Pr., rr. 44-47; C. L. Proc. inserted on the Posieo, the final judg- Aot, 1852, ss. 104-115 ; C. L. Proc. ment is said to be signed : 1 Chitt. Act, 1854, ss. 58-59. Arch. Prac. 11th ed., p. 521. This is (e) A juror is sometimes withdrawn done by the Master affixing an official by the consent of both parties. seal to the Postea ; Id. p. 523. 202 OBDINARY REMEDIES. these steps may be taken, it is enacted, that " when a plain- tiff or defendant has obtained a verdict in term, or in case a plaintiff has been nonsuited at the trial in or out of term, judgment may be signed Qi) and execution issued thereon in fourteen days, unless the judge who tries the cause, or some other judge or the Court, shall order execution to issue at an earlier or later period, with or without terms " (i). Execution is founded upon a record, and is levied under the authority of a writ issued out of the Court in which the record is (fc), and directed to the sheriff of the county wherein it is to be executed, the object being to obtain thereby, either directly or indirectly, satisfaction of the debt or damages for which judgment has been signed (C). The ordinary writs of execution are, 1. Fieri facias ; 2. Elegit ; 3. Capias ad satisfaciendum. Fiorifacias. \_ The Writ of fieri facias commands the sheriff to cause to be made, of the goods of the judgment debtor, the sum reco- vered in the action, together with interest thereon from the date of the judgment being entered ; and on the return day of the writ to have the same in court, together with the wiit and the manner in which it has been executed (m). Under this writ, the sheriff may seize all the goods and chattels (n), moneys, notes, cheques, bills, specialties, and securities for money (o) belonging to the defendant at the time of the writ being delivered to the sheriff, with the exception of wearing apparel (p), and (in a qualified degree) certain agricultural produce (q) ; the levy of goods and chattels, moreover, being (h) Femns v. LeMridge, 4 H. & (o) As to charging Grovemment N. 418. Stocks, &c., in wMcli the judgment (i) B. G. Pr., r. 57 ; C. L. Proc. Act, debtor is interested, see 1 & 2 Vict. c. 1852, s. 120. 110 ; 3 & 4 Vict. >;. 82 ; Taylw v. (h) 2 Wms. Saund. 37 a (2). Turnbull, 4 H. & N. 495. (I) C. L. Proc. Act, 1852, s. 121. (p) See 8 & 9 Vict. c. 127, s. 8 ; 1 (m) See forms of the writ in Sched. & 2 Vict. u. 110, s. 12. As to attach- to K. G. ,Pr., Nos. 1-6. ment of debts, post. Chap. 5. (m) See Dumergue v. Runsey, 2 H. (q) 56 Geo. 3, c. 50 ; and see 14 & & C. 777. 15 Vict, c, 25, s, 2. ACTION AT LAW. 203 made subject to the claim (if any) of the landlord of the judgment debtor for a year's rent (r), and to some other claims which need not here be particularised. 2. The writ of elegit has been much extended in its opera- Elegit. tion by the 1 & 2 Vict. c. 110 (s). It is employed to obtain satisfaction from the land as well as the goods of the judg- ment debtor, as may be seen from the form (t) of the writ, which recites the recovery of the judgment debt, and that the judgment creditor " chose to be delivered to him all the goods and chattels " of the judgment debtor in the sheriff's baili- wick, — " except his oxen and beasts of the plough (u), and also all such lands, tenements, rectories, tithes, rents, and hereditaments," including those of copyhold tenure, as the same judgment debtor (or any trustee on his behalf) is in possession of or has disposing power over to exercise for his own benefit — on the day when the judgment was entered up or any time afterwards, until the debt and interest thereon should be liquidated ; and the writ then commands the sheriff to cause the above-mentioned goods and chattels to be deli- vered to the creditor at a reasonable price, and also all (v) the lands, &c., referred to in the writ. As regards the goods and chattels upon which execution is to be levied under a writ of elegit, a jury must be im- panneled to make inquisition of and appraise them ; and if their value be insufficient, then the lands are delivered over by the sheriff to the execution creditor (x). The writ, with the inquisition, is then returned to the Coui-t out of which it issued. (»■) 8 Ann. u. 14, ». 1. («) Keen v. Priest, 4 H. & N. 236. («) This writ was first given by 13 {v) Before the 1 & 2 Vict. c. 110, Edw. 1, 0. 18. The 29 Oar. 2, c. 3, only a moiety of the debtor's land was subsequently enlarged the effect of the thus subject to execution. This statute above statute. See generally, as to the has been amended by various enact- writ of elegit, the notes to UiiderhUl v. ments, see Wms. Real Prop., 7th ed., Devereux, 2 Wms. Saund. 68. pp. 79 et seq. — and has been in part {t) See R. Gr. Pr. Sched., Nos. 9' repealed, as from Jan. 1, 1870. 14. (x) 2 Wms. Saund. 68 g. 20f ORDINARY REMEDIES. Levari facias. Sf ^ ^' '^^^ ^^^ °^ capias ad satisfacienckmi (y) commands the dum. sheriff to take the body of a judgment debtor, and him safelj keep, to satisfy the creditor the amount of the judgment debt. This mode of execution cannot be enforced when the judg- ment debt does not exceed 201. exclusive of costs {z). It must, however, be borne in mind that certain classes of per- sons are privileged from arrest under this process (a) ; and that, as from Jan. 1, 1870, the provisions of the 32 & 33 Vict. c. 62 (6), so far as applicable, are substituted for the law now in force. Besides the above ordinary writs of execution, some others less frequent in practice must be enumerated. The writ of levari facias issues with a view to obtaining satisfaction of the judgment debt out of the lands, and chattels of the judgment debtor. Except in the case of outlawry, however, this writ has been almost wholly super- seded by that of elegit, and it need not therefore here be further noticed. The writ of extent is issued for the purpose of enforcing execution on behalf of the Crown. The practice and learning in regard to it, which cannot here be discussed, may be collected from the authorities below cited (c). Execution At any time within six years from the recovery of a judg- upon re- . ^ , t • vived judg- mont lu a personal action, if the parties thereto ai-e hving, execution may issue thereon (d). "But where by reason either of lapse of time," " or of a change by death or other- wise of the parties entitled or liable to execution" (e), a revival of the judgment, before execution can issue upon it. Extent. (y) See the forms of the writ in Sched. to R. G. Pr. 15-22. (s) 7 & 8 Vict. u. 96, s. 57 ; re- pealed, as from Jan. 1, 1870, by 32 & 33 Vict. c. 83. (a) As to privilege, see 1 Chitt. Arch. Pr., 11th ed., p. 682 et seq. As to the immunity of a married woman, see Poole v. Canning, L. R. 2 C. P. 211. (J) See s. 5. (c) See Bdtoards v. Reg. (In eiTor), 9 Exch. 628; S. 0., Id. 32, cited, per Cur. Wright v. Mills, 4 H. & N. 491, 493, 494 ; 3 Bla. Com. p. 420 ; West on Extents ; Manning Exch. Pr. Bk. 1. (d) C. L. Proc. Act, 1852, s. 128. (e) Id. ss. 128-131. ACTION AT LAW. 205 becomes necessary, such revival may be eflfected under the provisions of the C. L. Proc. Act, 1852 (/), by suing out a writ of revivor or by suggestion made upon the roll. When execution has been levied in any of the modes above indicated (g) — and its validity remains unquestioned — ■ the final results of a personal action are, so far as may be practicable, attained, and the ordinary procedure therein is brought to a close. 5. Proceedings by Motion or in Error, subsequent to Verdict. If either plaintiff or defendant in an action be dissatisfied New trial, with the result of the trial, it is competent to him to move for a new trial, a rule absolute for which may be granted by the Coiirt on any of the following grounds : — if evidence material to the verdict during the progress of the trial was either improperly received or rejected Qi) ; if the Judge has mis- directed the jury (i), or omitted to direct them at all (fc) on some point of law relative to the case, or was disqualified by reason of pecuniary interest in the subject-matter before the Court (I) ; if the successful party (m), or officer of the Court (n), (/) Id. as. 128-131. W. 415 ; SuchmariY. Fernie, 3 M. &' ( g) Attachment of debt of garnishee W. 505 ; Elliott v. South Devon R. C. , may be made under C. L. Proc. Act, 2 Exch. 725 ; see Clarice t. Arden, 16 1854, ss. 61-67, post. Chap. 5. C. B. 227. See per Mansfield, 0. J., The Judge may exercise his discretion Fentumy. Pococh, 5 Taunt. 195, 196. in refusing to interfere in proceedings As to new trial on the ground of to attach debts. See C. L. Proc. Act, improperly directing a nonsuit, see per 1860, ss. 28-31. Lord I/yndhv/rst, C. B., Alexander v. (A) Doe d. Welsh v. LangfieU, 16 Barker, 2 Or. & J. 133. M. k W. 497 ; Sughes v. JSughes, 15 (*) Hadley v. Baxendale, 9 Exoh. M. & W. 701 ; Crease v. Barrett, 1 341 ; Gee, app. , Lancashire and York- Cr. M. & R. 909. See Cattlin v. shvre E. C, resp., 6 H. & N. 211. Ba/rkar, 5 C. B. 201 ; Ferrand v. See Rolinson v. Gleadow, 5 Bing. N. am, 7 Q. B. 730 ; Bosanquet v. C. 156. Shortridge, i Exch. 699 ; Stindt v. (l) Dimes r. Grand Junction Canal Roberts, 5 D. & L. 460. Co., 3 H. L. Ca. 759 ; and see Williams (i) Per MomU, J., East Anglian R. t. Great Western iJ. a, 3 H. & N. 869. C. V. Lythgoe, 10 C. B. 726 ; per (m) Coster v. Merest, 2 B &. B. 272. Pa/rke, B., Pennell v. Aston, 14 M. & (») Bentley v. Fleming, 3 D. & L. 23.' 206 ORDINARY REMEDIES. or the juiy (o) have been guilty of gross misconduct ; if a mistake has been made in entering the verdict (p) ; or if the damages awarded by the jury be glaringly excessive (q) or palpably insufficient (r). It is also deemed good ground for re- quiring that the issues should be submitted to another jury, if it is made out that the verdict was obtained by ' surprise ' (s), or that new evidence, discovered subsequent to the trial, is now available to the applicant, or that the verdict was pro- cured and obtained by perjury and conspiracy (t), or was manifestly against the weight of evidence, or was perverse (u): and generally upon satisfying the Court that there has been a miscarriage of justice remediable by a new trial (x), it will be granted to the applicant who moves for it in time (y) either absolutely or upon such conditions as may seem equitable (z). (o) Straher v. Graham, 4 M. & W. 721 ; per Lord Ahinger, C. B., Morris T. Vivian, 10 M. & W. 140. See Standewicle v. ffopkins, 2 D. & L. 502 ; Mamadge v. Ryan, 9 Bing. 333 ; Sail T. Poyser, 13 M. & W. 600 ; Alhtm-v. Baulthee, 9 Exch. 738 ; Vade v. De- laval, 1 T. K. 11. See Cooling v. Great Northern R. C, 15 Q. B. 486 ; Coohsey t. Haynes, 27 L. J., Exch. 371. (p) Roberts v. Sughes, 7 M. & W. 399 ; Raphael v. Bank of England, 17 C. B. 161. (q) Creed v. Fisher, 9 Exoh. 472. See Masters v. Barnwell, 7 Bing. 224 ; Price V. Severn, 7 Bing. 316, and cases there cited ; Rolin t. Steward, 14 C. B. 395. (?•) Riclmrds t. Rose, 9 Exch. 218 ; Chambers v. Caulfield, 6 East, 244. See Apps v. Day, 14 C. B. 112; Forsdike t. Stone, L. E. 3 C. P. 607 ; Mostyn r. Coles, 7 H. & N. 872 ; post, Bk. II., Chap. 6. (s) Per Maule, J. , Hoare v. Silver- loch, 9 C. B. 22 ; Austin v. Evans, 2 M. & Gt. 430 ; Edgcr v. Knnpp, 5 M. & Gr. 753. (t) Thurtell v. Beaumont, 1 Bing. 339. (u) Eawhins v. Alder, 18 C. B. 640 ; Gumey v. Womersley, 4 E. & B. 133 ; Harrison t. Fane, 1 M. & Grr. 550. See C. L. Proe. Act, 1854, s. 1, ad fin. (x) Williams v. Evans, 2 M. & W. 220 ; Allum t. Boultbee, 9 Exch. 738; Honeyman v. Lewis, nbi supra ; Pox V. Clifton, 9 Bing. 115 ; Benett v. Peninsular and Oriental Steam Boat Co., 16 C. B. 29 ; C. L. Proc. Act, 1854, =. 31. (y) E. G. Pr., rr. 50-54 ; Harrison V. Great Northern R. C, 11 C. B. 542 ; Watkins v. Packman, 14 C. B. 419 ; Black V. Jones, 6 Exch. 213. As to costs of a new trial, see C. L. Proc. Act, 1854, s. 44 ; Evan^ v. Ro- binson, 11 Exch. 40. (z) In Hughes v. Hughes, 15 M. & W. 704, Alderson, B., says: "The granting a new trial, strictly speaking, is in the discretion of the Court : al- though the Court regulates its discretion as nearly as possible by the rules appli- ACTION AT LAW. 207 It must always, however, be remembered, that whilst it is a principle with our Courts that failure of justice should be corrected and its perfect administration be secured (a), yet another important object, which legal tribunals must not lose sight of, " is that causes should be determined and deter- mined finally " (6). Important provisions with respect to motions for new trials Appeal on •■ ■*■ ^ motion for a have been introduced by the C. L. Proc. Act, 1854 (c), which, newtnai. inter alia, enacts that upon the hearing of the motion the Court may direct oral examination of witnesses and other evidence to be produced (d), and an appeal is given in cer- tain cases from the ruling of the judges sitting in banc (e). Further, whenever a Court of Appeal may be thus referred to, it may give such judgment as ought to have been given in the Court below, and may adjudge payment of costs, and order restitution ( /). When the rule for a new trial is applied for, the motion is frequently conjoined with one to enter a verdict or nonsuit pursuant to leave reserved by the judge (g) at the trial ; for the Court will sometimes see fit to grant the former in preference to allowing the latter course to be taken. The object of moving for a venire or trial de novoQi) is vemrede . 1 . novo. the same as that of moving for a new trial. An important distinction, however, between an award of a venire de novo cable to bills of exceptions." But see Womersley, 4 B. & B. 133 ; Evans v. C. L. Proc. Act, 1854, ». 36. Robinson, 11 Exch. 40. (a) See per IiotA Kenyan, C. J., Oal- {d) C. L. Proc. Act, 1854, ss. 46-49. craft T. Gibbs, 5 T. K. 19 ; per Mans- (e) Sects. 34-42. field, C. J. , Sviinnerton v. Marquis of An appeal naw lies from the judg- Stafford, 3 Taunt. 232 ; Gibson v. ment of the Court of Exchequer on a Muskett, 4 M. & Gr. 160, 171. motion for a new trial in a revenue (6) Per WUles, J., Great Northern case, 28 k 29 Vict. c. 104, s. 31. R. a V. Mossop, 17 C. B. 140 ; citing (/) C. L. Proc. Act, 1854, ss. 41, the maxim, Ne lites sint immortales 42 ; and see C. L. Proc. Act, 1860, dum litantes sunt mortales. ss. 4-10. (c) See S3. 31, 33, 35-42, 45 ; B. G. (g) Ante, p. 199. Pr., rr. 50-54. See Drayson v. An- (h) C. L. Proc. Act, 1852, s. 105. drews, 10 Exch. 472 ; Gurney v. 208 ORDINARY REMEDIES. and a rule for a new trial appears to be, that the former is always founded upon some irregularity or miscarriage ap- parent upon the face of the record, whilst the latter is more commonly an interference by the Court in the discretionary exercise by it of a species of equitable jurisdiction for the purpose of relieving a party against a latent grievance (i). Thus, when claimable at all, a venire de novo can be claimed of right and unconditionally, as if it appears on the record that challenges to the jury have been improperly allowed or disallowed (k), or that the verdict is in itself imperfect (I), or when the damages are wrongly given with reference to the breaches alleged (m), or when a mis-trial has occurred by a wrong person being placed on the jury at the trial of the cause (pi). A trial de novo may also be ordered by a Court of error if its decision on a bill of exceptions (o) is in favour of the pai-ty who has tendered the bill, and error may now at once be brought " upon an award of a trial de novo by any one of the superior Courts, or by the Court of error " (p). Although the result of the trial be not disturbed by any of the proceedings already indicated, the successful plaintiff is not altogether sure of enjoying the fruits of his success. There yet remains to the defendant an opportunity of moving in arrest of judgment; whilst the plaintiff (5), on his part, if his adversary has secured the verdict at the trial, may apply to the Court for judgment nan obstante veredicto; resort to a Court of error being also open to the defeated party. (j) Oould v. Oliver, 2 M. & Gr. (») Doe d. Ashhurnham v. Michael, 238, n. ; per Alderson, B., Hughes v. 16 Q. B. 624 ; Muirhead v. Evans, 6 hes, 15 M. & W. 704 ; Tmmg v. Exoh. 447. Billiter, 8 H. L. Ca. 682. (o) Ante, p. 200. (h) R. V. Edmonds, 4 B. & Aid. (p) C. L. Proc. Act 1854, s. 43. 471. See K. G. PI., r. 24. (I) Witham v. Leiois, 1 Wils. 48. (q) Sand v. Vaughan, 1 Bing. N. (m) Leach v. Thomas, 2 M. & W. C. 767 ; R^. y. Darlington School, 6 427 ; Gould v. Oliver, ubi sup. n. [i) ; Q. B. 682. Emblin v. Dartnell, 12 M. & W. 830. ACTION AT LAW. 209 Judgment will be arrested, when, upon the face of the Arrest of judgment. record, it appears to the Court that the plaintiff has no right to recover. Judgment non obstante veredicto, on the other hand, is judgment non ob- given by the Court where the defendant, by his pleading, has st™te ve- confessed the cause of action, whilst the matter which he has pleaded in avoidance is insufficient for the purpose (r). But if either plaintiff or defendant move the Court in the manner just specified, it is now competent "for the party, whose pleading is alleged to be defective, by leave of the Court, to suggest the existence of the omitted fact or facts, or other matter, which, if true, would remedy " (s) the defects, and the suggestion may then be pleaded to and tried in like manner as the issue in an ordinary action (t). The proceeding to error is now a " step in the cause" (u), Proceedings _ ^ in error. brought with a view to reversing the judgment previously entered up, and must be taken according to the provisions of the C. L. Proc. Acts {x). Error is either in law or in fact (y) :— Error m law may be maintained (z), if, on the face of the Error in record, the judgment appears not to be the legal consequence (»•) As to when judgment non ob- be given by Judges of record, and in a stante and repleader are respectively Court of record :" Co. Iiitt. 288. b. appropriate, see per Abbott, C. J., (x) C. L. Proc. Act, 1852, ss. 146- Lambert v. Taylor, 4 B. & Or. 152 ; 167 ; C. L. Proc. Act, 1854, ss. 32,. ante, p. 161. 36, 43. See R. G. Pr., it. 64-69. (s) C. L. Proc. Act, 1852, a. 143 ; (y) See _generally as to error, the Manley v. Boycot, 2 E. & B. 46. notes to Jaques v. Ccesar, 2 Wms. («) See the C. L. Proc. Act, 1852, Saund. 100. ss.' 144, 145 ; R. Gr. Pr. r. 50. (z) As to the Court in which error is («) C. L. Proc. Act, 1852, s. 148. to be tried, see 11 Geo. 4 & 1 Will. 4, By this section the vtrit of error is c. 70 ; 1 Chitt. Arch. Pr. 11th ed., abolished. " Error, " says Lord Coke, p. 649. The ultimate Court of appeal "liethwhen a man is grieved by any is the House of Lords, error in the foundation, proceeding, The proceedings in error must be judgment, or execution. . . But without brought generally within six years after a judgment, or an award in the nature judgment is signed ; C. L. Proc. Act, of a judgment, no writ of error doth lie 1852, ss. 146, 147. . . . and that judgment must regularly 210 ORDINARY REMEDIES. of the pleadings — as where the declaration (a), by reason of any substantial defect therein, is insufficient to support the action; or, again, if the proceedings in other respects are shown on the face of the record to be erroneous — as where the execution awarded is not the legal consequence of the judgment, or where the cause below was coram, non judiee (b). Error in Error in fact (c) naust be substantiated by affidavit (d) fact. ^ ■' _ •' ^ ■' showing that the party against whom the judgment has been given was not properly before the Court — as, for instance, that, being an infant, he appeared by attorney (e). If the grounds of error " appear frivolous, the Court or a judge upon summons may order execution to issue " (/) ; and if the proceedings in error are taken contrary to the agree- ment of parties (g) or against good faith, -or in any case where they will not properly lie (h), a Court of error has power to quash them. Execution will not be " stayed or delayed by proceedings in error or supersedeas thereupon without the special order " of the Court or a judge, unless sufficient bail be given by the appellant as security to his adversary to prosecute the proceedings in error with effect, and also to satisfy and pay (if the said judgment be affirmed or the proceedings in error be discontinued by the plaintiff therein) such sum of money and costs as have been or may be ad- judged due in respect of the judgment recovered, and all costs and damages to be awarded for the delaying of exe- cution (i). The statutory provisions here referred to, to (a) Wien the declaration is insuffi- {d ) C. L. Proc. Act, 1852, o. 168. oient to maintain the action, the error (c) Jackmn v. MarshaU, i E. & B. is caUed common ; in other cases it is 669. See Dich v. ToViausen, 4 H. & called special error. N. 695. (V) As to where error naay be as- (/) 0. L. Proc. Act, 1852, s. 160. signed instead of suggested and the See R. G. PL, r. 27. mode of pleading, see C. L. Proc. Act, (^r) Garrard v. Tuck, 8 C. B. 268. 1852, s. 152 ad fin. (A) C. L. Proc. Act, 1852, s. 166. (c) See Irwin y. Qrey, L, E. 1 C. P. 1 Chitt. Arch. Prac, 11th ed., p. 651. 171. (i) C. L. Proc. Act, 1852, s. 151 ; ACTION AT LAW. 211 gether -vvitli the ample powers of amendment (Jc) which the Courts of law now possess, and the rules as to costs in error, protect, to a great extent, parties who have been successful at the trial from being on insufficient grounds deprived of the fair result thereof; at the same time, to facilitate the correction of defects which have really occurred in a cause, it is enacted that Courts of error may in all cases " give such judgment and award such process as the Court from which error is brought ought to have done without regard to the party alleging error " (I). Proceedings in error being thus applicable in those cases Audit* only where either party has committed such mistakes as above specified during the progi-ess of the suit, there yet remains a possibility of injustice being done to a defendant against whom judgment has been given, by enforcing it when he has become possessed subsequently thereto of a good defence to the action. Under these circumstances such defence, whether legal (m) or equitable (n), is allowed to be set up by way of audita quereld (o). The writ of auditS, querela, however, has been seldom employed in modern times {p), the object in view being more conveniently (g) attained by motion, and indeed a defendant, in order to avail himself of a writ of audita querela, must now procure a rule of Court or order of a judge (r) before it can be issued. James t. Cochrane, 9 Excli. 552 ; K. execution by setting them aside for &. Pr., 1. 110. some injastice of the party that ot- (i) WUhinsom. Sharland, 11 Exah. . tained them, which could not be pleaded 33. This authority shows, that the re- in bar to the action : " Bac. Abr. tit. cord may be amended up to the day of Aud. Quer. See Com. Dig. Aud. Quer. the sitting in error. Twrner v. Davies, 2 Wms. Saund. 137, (i) C. L. Proc. Act, 1852, s. 157. n. and notes thereto, and 147, n. 1. As to restitution by writ of scire (p) Bea/rie v. Ker, i Exch. 82 ; facias after a reversal in error, see 0. Newton v. Howe, 7M. &G. 334 n. (a). L. Proc. Act, 1852, s. 132. See WUliams v. Rolerts, 1 L. M. & P. (m) 3 Bla. Com., p. 406. 381 ; Suttonv. BisJiop, iBmr. 2283. (m) C. L. Proc. Act, 1854, s. 84. (j) PUmn v. Henskall, 10 Bing. (o) "An audits, querela is a writ to 26. be delivered from an unjust judgment or (r) E. (J. Pr., i-. 79. r 2 212 ORDINARY REMEDIES. Sect. II. — Suit in the County Court. Practice of The practicc of the county courts, as at present constituted, the county . -j/xJl, court-how IS regulated by various statutes, below mentioned fs), and by constituted. o J rules made in pursuance of statutory powers (t). The gene- ral principles which govern the practice of the superior courts of common law may also be applied at the discretion of the judges of the county courts to proceedings therein (u). Plaint. The suit in a county court is commenced (v) by plaint, which must be entered in the County Court within the district of which the defendant or one of the defendants dwells (x) or can-ies on his business at the time of bringing the action, or it may be entered, by leave of the judge or registrar, in the County Court within the district of which the defendant or one of the defendants dwelt or carried on business, at any time within six calendar months next before the time of action brought, or, with the like leave, in the County Court in the district of which the cause of action wholly or in part arose (y), unless, indeed, the plaintiff dwells or carries on his business, and the defendant likewise does so, within a metropolitan district, or in the city of London, in which case the plaint may be entered either in the plaintiff's or in the defendant's district (z). Summons. Upou entry (a) of the plaint a summons to appear is issued (s) 9 & 10 Vict. u. 95; 12 & 13 Vict. u. 101 ; 13 & 14 Vict. c. 61 ; 15 & 16 Vict. c. 54 ; 17 & 18 Vict. c. 16 ; 19 & 20 Vict. c. 108 ; 21 & 22 Vict. 0. 74 ; 22 & 23 Vict. c. 57 ; 28 & 29 Vict. c. 99 (which gives an eqviitable jurisdiction) ; 29 & 30 Vict. c. 14 ; 30 & 31 Vict. c. 142. As to the ordinary jurisdiction of the county court, ante, pp. 59 et seq. There are many statutes which relate to the jurisdiction and practice of county courts in regard to particular matters, as to which see Poll. & N. Pract. County Court, 6th ed., Table of Contents, pp. viii., ix. (t) See the Rules, Orders, and Forms for regulating the Practice of the County Courts, A.D. 1867. (u) See 9 & 10 Vict. c. 95, s. 78 ; Chirm v. JBullen, 8 C. B. 447. {v) 9 & 10 Vict. u. 95, =. 59. (x) See Alexander t. Jones, L. R. 1 Ex. 133. («/) 30 & 31 Vict. c. 142, s. 1. (z) 19 & 20 Vict. c. 108, s. 18 ; 30 & 31 Vict. 0. 142, ». 3. {a) R. 37. SUIT IN THE COUNTY COURT. 213 lo the bailiff of the Court (6), to be by him served on the defendant ten clear days at least before the holding of the Court at which it is returnable (c). To the summons must Particular? ^ , ^ ' ^ .of demand. be annexed a copy of the plaintiff's particulars of demand, in those cases where they are required {d). There are no written pleadings in a suit in the county conrse of r o •> pleading. court J but if any one or more of certain defences are intended to be set up, notice thereof, unless the plaintiff consent to waive it, must be given to him. These defences are Set-off^ Infancy, Coverture, the Statute of Limitations, and discharge under any Statute relating to Bankrupts (e). All other defences are available to the defendant at the trial, whether by traverse or confession and avoidance, without any formal joinder of issue. Interrogatories may now by leave be delivered by either party to the suit to his adversary (/), and an in- spection and discovery of documents may be obtained {g). When no jury has been impanneled, the judge himself determines matters as well of fact as of law ; but a jury may be summoned on the requisition of either party to the suit, as matter of right, whenever the amount claimed exceeds £5 ; and in any case where such amount does not exceed £5, the judge may, on the application of either party, order the ■action to be tried by a jury QC). Assuming that both parties to the suit appear, the judge, either with or without a juiy, as the case may be, proceeds to hear the cause. If, moreover, the defendant appears and admits the claim, the registrar may, by leave of the judge, settle the terms and conditions upon which it is to be paid, and may enter up judgment accordingly (i). (6) E. 10. applied to County Courts by order in (c) 9 & 10 Vict. c. 95, s. 59, and r. Council, Nov. 18, 1867. Rules 80- 51. As to the mode of service gene- 82. rally, see rules 52 et seq. (g) C. L. Proc. Act, 1864, s. 50, ap- (d) See rules 43, 44. plied as atove to County Courts. Eules (e) 9 & 10 Vict. c. 95, s. 76 ; and see 76-79. rr. 88-93. (h) Id. s. 70 ; rr. 77, 104, 107. (/) C. L. Proc. Act, 1854, ss. 51, 52, (i) 30 & 31 Vict. c. 142, s. 17. 214 OEDINAKY REMEDIES. It is also provided by the recent statute (k), that, in any action brought in a County Court for the price or value of goods or chattels which or some part of which were sold and delivered to the defendant to be dealt with in the way of his trade, profession, or calling, the plaintiff may, at his option, cause to be issued a summons in the ordinary form, or (upon filing an affidavit) in the form contained in the Act (I), and if such last-mentioned summons be issued, it must be person- ally served on the defendant twelve clear days at least before the return day thereof, and then if the defendant do not, at least six clear days before such return day, give notice in writing, signed by himself, his attorney or agent, to the regis- trar of the Court from which the summons issued, of his intention to defend, the plaintiff may, within two months after such return day, without giving any proof of his claim, have, upon proof by affidavit of the service of the summons, judgment entered up against the defendant for the amount of his claim and costs. The order upon such judgment will be for payment forthwith, or at such times, and by such in- stalments as the plaintiff has in writing consented to take at the time of entering the plaint. If, however, the defendant give such notice as above specified, the action wiU be heard in the ordinary course ; and in any event the registrar wiU, immediately after the last day for giving such notice, inform the plaintiff by letter whether the defendant has or has not given notice of his intention to defend. If in any action brought in the County Court founded on contract, the defendant does not appear at the hearing, either in person or by some person duly authorised on his behalf, and no sufficient excuse for the defendant's absence be shown, the registrar may, by leave of the judge, upon due proof of the service of the summons and of the debt being due and owing, enter up judgment for the plaintiff, and have the same {k) 30 & 31 Vict. c. 142, s. 2. {I) Scbod. (B). SUIT IN THE COUNTY COUET. 215 power to make au order for payment by instalments, or to enter up judgment of nonsuit, or to strike out or adjourn the cause, as the judge of the Court has ; but the judgment so entered up, and any execution thereon, may be set aside, and a new trial granted, upon such terms, if any, as the judge may think fit to require (m). Should neither coimsel nor attornies attend, at the hearing of a suit in the County Court, the judge must endeavour to elicit from the parties and their witnesses (whose attendance is procured by summons (n) ), such facts as will enable him to determine the question or questions in dispute. When the case is closed on both sides, the judge, if unassisted by a jury, decides both on fact and law ; but, if assisted by a jury, he win direct them in point of law, whilst they decide upon the facts. Judgment is then given for the plaintiff or de- Judgment. fendant — ^unless, indeed, the former be nonsuited — and en- tered on the minutes of the Court. The judge also directs the mode of payment (which in certain cases may be by instalments), of any sum to which he may find the plaintiff entitled (o). The costs of the action abide the event, unless the judge shall otherwise order, and execution "may issue for the recovery of any such costs in like manner as for any debt adjudged in the said Court " (p). When the judgment (q) has been entered up, it may be Execution enforced by execution against the goods, leviable by writ of r^e^""^ fieri facias; and it may be worth notice, that the wearing apparel and bedding of the judgment debtor or his family. (m) 30 & 31 Vict. e. 142, s. 16. then issue for the whole sum due : Id. (») 9 & 10 Vict. c. 95, ss. 85-87. ». 95. (o) 19 & 20 Vict. c. 108, s. 45 ; and (j) An action in a superior Court r. 110. does not lie on a judgment of a county ip) 9 & 10 Vict. c. 95, s. 88. court ; BerMeyv. Elderhim,, 1 E. &B. When au order has been made for the 805; Austin f. Mills, 9 Exch. 288. debt to be paid by instalments, execu- See Moreton t. Holt, 10 Exch, tion will not issue till after default in 707; payment of an instalment ; and it may 216 ORDINARY REMEDIES. and the tools and implements of his trade, to the value of £5, are protected from seizure (r). —against Executiou against the person may be obtained on summons, the person. ^i-'iTjri, where default is made in complying with the order or the judge for payment of the money recovered (s). New trial. It is Competent to either party, dissatisfied with the ver- dict or decision of the case, to apply for a new trial, which the judge may in his discretion order to take place before a jury, although the action was not originally so tried (t). Proceedings The mods of removing a cause from the jurisdiction' of ^y^cer lo ^^^ couuty court to that of a superior Court, is by writ of certiorari. The right of so removing a cause exists at common law, but conditions have been annexed by statute to the exercise of the right in the cases of county court litigation. By the 9 & 10 Vict. c. 95, a cause may be thus removed when the debt or damage claimed exceeds £5, by leave of a judge of one of the superior Courts, if the cause shall appear to him proper to be so removed, and on such terms as he shall deem fit to impose (u). But even if the claim in the county court do not exceed £5, it may, under the 19 & 20 Vict. c. 108 (a?),be removed by certiorari to a superior Court, if such Court or judge shall deem it desir- able that the cause be tried there, and if the party applying for the writ, shall give the security required by the Act (y), (»•) 9 & 10 Vict. 0. 95, ss. 94, 96 ; Court is tried in a County Court pur- 8 & 9 Vict. a. 127, B. 8. suantto a judge's order under the 19 & As to interpleader where the goods 20 Vict. c. 108, s. 26, the superior Court taken in execution are claimed by a retains the jurisdiction as to granting a •third person, see 30 & 31 Vict. c. 142, new trial : Balmfcyrth t. Pledge, L. K. B. 31. 1 Q. B. 427. (s) See 9 & 10 Vict. ^. 95, ss. 98, (u) g. 90 ; 13 & 14 Vict. c. 61, s. 99 (as modified by 22 & 23 Vict. c. 57). 16 ; Box v. Green, 9 Exch. 503 These provisions are repealed, as from Symonds t. ZHmsdaZe, 6 D. & L. 17 Jan. 1, 1870, by the 32 & 33 Vict. Mungean t. Wheatley, 6 Exch. 88 c. 83, and for them is substituted, so 98 ; Moreton v. Holt, 10 Exch. 707. far as applicable, s. 6 of the 32 & 33 (x) Sect. 38. Vict. u. 62. {y) See Me Young t. Brampton, &c., (t) Eule 173. Waterworha Co., 1 B. & S. 675. Where a cause brought in a superior SUIT IN THE COUNTY COURT. 217 and comply with the conditions imposed by such judge in the exercise of his discretion. One of the usual grounds for granting tlie writ is, that difficult questions of law will ai-ise in the suit (z). If either party to a suit in the county court, when the Appeal to ^ *> ./ ' superior claim is ,for a sum between £20 and £50 (a), or when juris- '^°"'''- diction is given by agreement (unless the right of appeal is specially excluded also by agreement (6) ), is dissatisfied with the determination or direction of the said Court in point of law, or upon the admission or rejection of .any evidence (c), such party may appeal from the same to any of the superior Courts of common law at Westminster (d). Before, however, the appeal is allowed to be prosecuted, sufficient security must be given by the appellant (e). An appeal may be brought from the decision of a County Court judge, on the same grounds and subject to the same conditions as specified in the 13 Sf 14 Vict. c. 61, s. 14, in any action of ejectment, or in which the title to a corporeal or incorporeal hereditament comes in question, and with the leave of such judge in any action in which an appeal had not previously been allowed " if the judge shall think it reasonable and proper that such appeal should be allowed" (/). {z) See Bees v. Williams, 1 Exch. See 19 & 20 Vict. c. 108, s. 68 ; Han-ris 51 ; Parker t, Bristol cmd Eaceter R. v. Dreesman, 9 Exch. 485 ; Mayer v. C, 6 Exch. 184 ; Longlottom t. Long- Bm-gess, 4 E. & B. 655 ; In re Hack- lottom, 8 Exch. 203, 208. vng v. Zee, 29 L. J., Q. B., 204 ; (a) See North v. Holroyd, L. K. 3 London and North Western B. G. v. Ex. 69. Dunham, 18 C. B. 826. (6) 17 & 18 Vict. c. 16, s. 1. (e) 13 & 14 Viot. c. 61, s. 14 ; see (c) OoAjoley t. PurnM, 12 C. B. 291 ; 1. 134; Norris, app., Carrington, resp.. East Anglian B. C. v. Lythgoe, 10 16 C. B., N. S., 10 ; see Watertony. C. B. 726 ; S. C, 2 L. M. & P. 221 Tenvpleman v. Haydon, 12 C. B. 507 Otithbertson y. Parsons, Id. 304 Baker, L. E. 3 Q. B. 173. As to the appeal from a judgment In respect of actions of replevin, proceed - Clarke v. Stancliffe, 7 Exch. 439. See ings in interpleader, and the recovery Poster V. Oreen, 6 H. & N. 793. of small tenements, see 19 & 20 Viot. (d) 13 & 14 Vict. c. 61, s. 14, as c. 108, s. 68. altered by 15 & 16 Vict. u. 54, ». 2. (/) 30 & 31 Vict. u. 142, s. 13. 218 ORDINARY REMEDIES. A writ of prohibition will not lie to the County Court in respect of a matter within its jurisdiction (gr). In the foregoing pages has been exhibited a brief sketch of the ordinary course of procedure connected with a suit in the county court, — a subject which must be pursued in detail by reference to Books of Practice. Here the present chapter is brought conveniently to a close, and I shall next proceed to inquire as to some Extraordinary Remedies permitted to an aggrieved party, or afforded under peculiar circumstances by Courts of law. ((jr) Norris, app., Carrington, resp., 16 C. B., N. S., 396. CHAPTER V. EXTRAORDINARY REMEDIES. Besides suit in a Superior Court of common law, or in the County Court, there are other remedies of an " extra- judicial or eccentrical " (a) character, which are permitted in certain cases, and may here be treated of under the title of "Extraordinary Remedies." These are applicable for the redress of divers injuries which are "of such a nature that some of them furnish and others require a more speedy remedy than can be had in the ordinary forms of justice " (a). A wrong may, in certain cases, be redressed, or its continu- Extraordi- ance be prevented : I. By the act of the party injured (b) ; dies— how II. By the mere operation of law, independently of the ordi- nary mode of procedure ; III. By the exercise of the extra- ordinary powers of the Court (c). I. Under the first of the above three classes falls the remedy by self-defence, which is founded on the right derived to us from the law of nature to repel force by force. But although the law permits this to be done in certain cases, it behoves one who thus undertakes his own protection, or that of his dependents, not to overstep the (a) 3Bla. Com., p. 3. the party injured, which, when per- (6) As to which see Evans's Decis. of formed, is a bar of all actions upon Ld. Mansfield, vol. 2, pp. 122-128. this account :'' 3 Bla. Com., p. 15, (c) According to ancient authorities, Arbitration is generally the "judgment under the head of Extraordinary Keme- or decree of persona elected by the par- diea should be included accord and ties to arbitrate of the things submitted arhitratimi. Of which the former is to tllem :'' Com. Dig. Arbitrament, defined to be "a satisfaction a^eed. (A). But see C. L. Proc. Act, 1854, upon between the party injuring and ss. 3-17. 220 EXTRAORDINARY REMEDIES. bounds of moderation, nor use force exceeding in degree what may be necessary for effecting the end in view ; for, by so doing, he may perchance constitute himself an aggressor. Nor is the licence thus conceded restricted to a defence of the person merely; for the rightful owner, in peaceable posses- sion of property, may defend such possession by force, and will be therein justified (d). Recaption, Recaption is a remedy in certain cases given to a man when he has been wrongfully deprived of his goods by another. "If a man takes my goods and carries them into his own land, I may justify my'entry into the said land to take my goods again ; for they came there by his own act " (e). But if it cannot be shown that my own goods so came there, the mere fact of their being on another man's land will not justify my entering thereon and repossessing myself of my goods (/). If, however, they are found on a common, in a fair, or at a public inn, it is laid down that they may be lawfully re-seized by the rightful owner {g). Besides the justification thus in certain cases afforded to one who enters upon the premises of another to repossess himself of goods tortiously placed there, parties may simi- larly right themselves, without resorting to law, linder some other circumstances : for example, in the case of fruit drop- ping from one man's tree on to the land of another, or of trees themselves falling thereon. In such case the owner of the fruit or of the trees may justify entering his neighbour's land to recover his property on the ground of accident (A). (d) Judgm., E. V. Wilson, 3 Ad. & C. B., Burridge y. Nicholetts, 6 H. & E. 825. N. 389. ?,&& Earl of Bristol y. WUs- (e) Tin. Abr. Trespass, I. (a) ; Bur- more, 1 B. & C. 514 ridge v. Nicholetts, 6 H. & N. 383, (7t) Per Tindal, C. J., Anthony v. 392. Haneys, 8 Biug. 192, commenting on (/) Per Parke, B., Patrick v. Cole- Millen v. Hawery, Latch, 13; and rick, 3 M. & W. 486 ; Anthony v. Yin. Abr. Trespass, H., a, 2, and L., Haneys, 8 Bing. 186. a ; Webb v. Beavan, 3 Scott, N. K., (g) 3 Bla. Com., p. 4; per PoUock, 937, n. 15. As to recoveiy of loppings EXTRAOEDINARY REMEDIES. 221 This natural right of recaption, as it has been called (i), may justify an assault by the owner of goods to repossess himself of them when wrongfully in the possession of another, who, by tortiously taking, does not acquire any property in them (k). An entry by the lawful owner upon lands and tenements Eviction. of which another is" in possession without right, is also in some cases permitted. There is no doubt that where one has taken or holds possession wrongfully of land, the lawful owner may make a peaceable entry thereon (T), and, after notice, may eject with no unnecessary violence the tenant in possession. In Newton v. Harland (m), an important point was raised in connection with the subject now before us, which, after three trials of the cause, and various arguments in banc, cannot yet be considered as finally and satisfactorily settled. The broad question there discussed was, whether a landlord is liable in trespass who forcibly enters upon the demised premises, and ejects a tenant holding over after the expiration of his term. It is clear that a tenant holding over cannot treat the landlord who enters peaceably as a trespasser ; and if a landlord so enters, he may, after notice, eject with no unnecessary violence the tenant in pos- session, because the one is lawfully in possession, and the other, by continuing on the land after notice, is a trespasser. And notwithstanding some difference of opinion (n) upon the subject, it seems that, in an action of trespass, " it is a per- which necessarily fall on to the lands of Exch. 263 ; judgm. , S. v. Wilson, 3 another, see Yr. Bk. 6 Edw. 4, fo. 18, Ad. & E. 824. As to what constitutes 19, a,ni MUlenr. Sawery, nbi supra. eviction, see judgm., Upton t. Town- (i) 3 Bla. Com., p. 4. end, 17 C. B. 30 ; FurnivaU t. Grove, \k) Blades v. Eiggs, 11 H. L. Ca. 8 0. B., N. S., 496. 621 ; Smith v. WrigU, 6 H. & N. (m) 1 M. & Gr. 644. 821. See Chambers v. Miller, 13 C. (n) See Newton v. Harland, supra ; B., N. S., 125. per Cresswell, J., Davis v. Surrell, (l) Per Lord Kenyan, C. J., Tayloi' 10 C. B. 825; per Parke, B., and V. Cole, 3 T. R. 295, cited per Lord Alderson, B., Harvey v. Bi-ydges, 14 Benman, C; J., Harvey v. Brydges, 1 M. &. W. 437 ; S. C, 1 Excli. 261. 222 EXTEAORDINARY REMEDIES. fectly good justification to say that the plaintiff was in possession of the land against the will of the defendant, who was owner, and that he entered upon it accordingly, even though in so doing a breach of the peace was com- mitted" (o). Abatement Again ; subject to the condition that no riot be committed of pnvate o ^ j miisanoe., jjy tj^g act, & nuisance (p) may be abated, i.e. removed by the party injured thereby, whether it be • a private nuisance — such as the obstruction of an individual's ancient lights — or a public nuisance, — as where a gate is placed unlairfally across the king's highway (g). It has been held, indeed, that notice must, under certain circumstances, be given, prior to abating a private nuisance, to the party on whose land it exists. Various authorities bearing upon this point are cited and reviewed in Jones v. Williams (r), where Parke, B., says, — " It is clear that if ■ the plaintiff himself was the original wrongdoer, by placing the filth (which was the nuisance in question) upon the locus in quo, it might be removed by the party injured without any notice to the plaintiff; and so, possibly, if by his default in not performing some obligation incumbent on him — for that is his own wrong also ; but if the nuisance was levied by another, and the defendant succeeded to the possession of the locus in quo afterwards, the authorities are in favour of the necessity of a notice being given to him to remove before the party aggrieved can take the law into his own hands." Further, the Court intimated an opinion that " it might be necessary — in some cases where there was such immediate danger to life or health as to render it unsafe to wait — to remove with- (o) Per Parke, B., Baney v. (?•) 11 M. & W. 176 ; and see fasten'* Brydges, 14 M. & W. 442 ; judgm., case, 9 Eep. 53 b, 54 b; Pemruddock's 10 0. B., N. S., 721. See Pollen, v. case, 6 Rep. 100b; Sari of JUmsdak Brewer, 7 C. B., N. S., 371. v. Nelson, 2 B. & C. 302 ; Morrice t. (p) Post. Bk. III. Chap. 3. Baher, 3 Bulst. 198 ; Arlett v. Mis, Iq) Judgm., 7 Q. B. 377, citing 3 7 B. & C. 346. Bla. Com., p. 5. EXTRAORDINARY REMEDIES. 223 out notice." In Perry v. Fitzhowe (s), some material points in reference to the subject now under consideration were determined. The action there was in trespass ; and the main question presented for discussion was, whether the defendant could lawfully pull down the plaintiff's dwelling- house, he and his family being in it at the time, and the dwelling-house in question having been wrongfully erected upon a place over which the defendant had a right of common, which was thus infringed? In determining this question the Court observed, that a person who is injured by a private nuisance may, as a general rule, abate it ; and within this rule the case of a commoner is included, so that he may abate a nuisance which interferes with his right, so far as may be necessary for its exercise. Nor does the nature of the building which may obstruct the exercise of the right seem material. A house may be pulled down just as much as a bam or any other building. Does, then, the fact that individuals are in the house at the time in ques- tion, render the act of pulling it down unlawful ? Reasoning by analogy from the law of distress, it seems to do so. A horse on which a man is riding," or tools which he is using, cannot be distrained, on account of the imminent risk which there would be of a breach of the peace taking place if such a distress were permitted (f) ; and surely, it was argued, the risk of a breach of the peace is much more im- minent in the case of pulling down a house in which persons actually are (w,). An act done under such circum- stances would be specially calculated to excite violence ; and the law wiU not permit any man to pursue his remedy at such risk. The decision just adverted to, which is one of some im- (») 8 Q. B. 757 (with whioh aco. (t) Field v. Adames, 12 Ad. & E. Jones V. Jones, 1 H. & C. 1, 6) ; 649. Dimes v. Petley, 15 Q. B. 276, 283 ; (u) See Knapp y, London, Cliatham, Damson v. Wilson, 11 Q. B. 890. and Dover JJ. C, 2 H. & C. 212. 224 EXTKAORDINARY REMEDIES. porfcance, has been commented upon, but never overruled. No very general principle, however, can safely be deduced from it. It certainly would not be true to say that the rightful owner of land could not justify the forcible expulsion from it of a mere trespasser who had taken possession, or the pulhng down of a house wrongfully built upon it by such a trespasser. It cannot be that a mere stranger acqiiires a title by intrusion, except where his possession has continued during the period prescribed by the Statutes of Limitation. In such a case the owner of the soil may enter, and, with a view to ejecting the tenant, pull down any house which he may have erected there, although he be inhabiting it at the time (x). In the case of Perry v. Fitzhoive, it will be found that the plea of justification did not contain any averment of nwtice to the plaintiff previous to the alleged trespass. If there be such notice, that decision will not avail as a precedent : for there is a wide distinction between the case of parties suddenly coming to a dwelling-house in actual occupation, and without notice or demand forcibly pulling it down, and the case in which the occupier has had previous notice, and has been requested to remove the building, but has persisted in remaining in the house with his family in defiance of the notice. In Davies v. Williams (y), it was expressly held that where a house has been wrongfully built upon a com- mon, and obstructs the enjoyment of the right of common, a commoner may, after notice and request to the plaintiff to remove the house, pull it down, although the plaintiff is actually inhabiting it and present therein. Abatement In regard to the abating of a public nuisance, it is laid nuisance, dowu (z), that " if a now gate be erected across the pubHc highway, which is a common nuisance, any of the king's subjects passing that way may cut it down and destroy {x) Bu/rling v. Read, 11 Q. B. 901 ; {y) 16 Q. B. 546. Davison v. Wilson, Id. 590. (;) 3 Blr. Com., p. 5. EXTRAORDINARY REMEDIES. 225 it." The cases below referred to (a), however, show that to justify a private individual in abating on his own authority- such a nuisance, it must appear that it does him a special injury; and he can only interfere with it as far as may be necessary to exercise his right of passing along the highway with reasonable convenience, and not because the obstruction happens to be there. Another " case in which," says Blackstone, " the law allows Distress. a man to be his own avenger, or to minister redress to him- self, is that of distraining cattle (6) or goods for non-payment of rent or other duties ; or, distraining another's cattle da- mage feasant, that is, doing damage or trespassing upon his land " (c). The right of distress is also given to enforce the recovery of other " duties besides those in the nature of debt; — ^for example, assessments and rates under special Acts of Parliament" {d). Into the mode of enforcing a remedy by distress in any of these cases, it is not the object of this work minutely to enter (e). II. Remedies by the mere operation of law — independent Remedies by operation of the ordinary mode of procedure — are afforded when parties »* i*'^- are so peculiarly circumstanced that for some reason they cannot appeal through the usual channels of justice for re- dress ; and '' the benignity of the law is such as, when to preserve the principles and grounds of law it depriveth a man of his remedy without his own fault, it will rather put (ffi) Dimes v. Petley, 15 Q. B. 276 ; on behalf of the lord, and a waif, wreck, Bridge t. Ch-and Junction R. C, 3 M. or estray by the person entitled to it : & W. 24i ; Davies y. Mann, 10 M. 3 Bla. Com., p. 15. & W. 546; Mayor of Colchester r. (e) The distinction between the "old Brooke, 7 Q. B. 339 ; Bateman v. common law distresses, which were in Blitck, 18 Q. B. 870 ; lioherts v. Hose, nature of a nomine pcens, to compel 3 H. & C. 162; S. C, L. R. 1 Ex. payment;" and such distresses, "when 82. the things distrained may immediately (6) Keen v. Priest, 4 H. & N. 236. be sold by way of satisfaction " or exe- (c) 3 Bla. Com., p. 6. cution, is pointed out by Lord Mans- (d) Per Lord Mansfield, 0. J., Hall jield in Sutchins v. Chambers, 1 Burr. V. Harding, 4 Buit. 2426'. To this 579. right is allied that of seizing a heriot 226 EXTRAOEDINAKY REMEDIES. him in a better degree and condition than in a worse " (/). These remedies are : — Eetainer. 1. By retainer — when a creditor is made executor or administrator to his debtor ; under which circumstances the personal representative may retain out of the assets of the deceased the debt due to himself, in preference to paying other creditors whose debts are of equal degi'ee with his own(gr). Remitter. 2. By remitter — " where he who hath the true property or jus proprietatis in lands, but is out of possession thereof, and hath no right to enter without recovering possession in an action, hath afterwards the freehold cast upon him by some subsequent, and of course defective, title. In this case he is remitted, or sent back by the operation of law to his ancient and more certain title " Qi). Eemediai HI. As a general rule, our Courts will not interfere on process . ^ ... ttrcom-ts" ^loti*^^ ^^ adjudicate between litigating parties upon rights Motion. which may by action at law be duly investigated. A motion indeed is very often ancillary or in some manner incidental to a pending suit — it may arise out of — but can- not ordinarily be used as a substitute for — ^the remedy by action. To this rule there are, however, some exceptions. Thus, an attorney, being an officer of the Court and in that character amenable to its surveillance, may sometimes he compelled by motion in a summary way to do that, for the not doing of which an action would have lain, and he may also sometimes on motion be punished for negligence (i). The jurisdiction exercised by the Courts in such cases depends upon the character assumed by the party against whom a complaint is put forth, so that it has been repeatedly (/) Bac. Max., reg. 9. {i) ZongY Ord, 18 C. B. 610; Oox (g) 1 Wms. Saund. 333, n. G ; De v. Leech, 1 C. B., N. S., 617 ; Meggs Tastet V. Shatii, 1 B. & Aid. 664. v. Mnns, 2 Bing. N. C. 625 ; Eawkins (h) 3 Bla. Com., p. 19. See Doe d. v. Sarwood, i Exoh. 603 ; Cooper y. Danid v. Woodn-offe, 2 H. L. Oa. 811 ; Stephenson, 21 L. J., Q. B., 292 ; S. a, 15 M. & W. 769; 10 M. & W. 608. Tharmtt t. Trevor, 7 Exch. 161. EXTRAORDINARY RKMEDIES. 227 held that the Court will not interfere summarily to compel payment of money or the restitution of deeds detained by an attorney, unless the deeds or monies were received by him in the character of attorney, or whilst acting as such for the appHcant ; " where," says Lord Tenterden, C. J. (k), " an attorney is employed in a matter wholly unconnected with his professional character, the Court will not interfere in a summary way to compel him to execute faithfully the trust reposed in him (f). But where the employment is so con- nected with his professional character as to afford a pre^ sumption that his character formed the ground of his em- ployment by the client, there the Court will exercise this jurisdiction." In Re Hilliard (m), Coleridge, J., observes that " the Court does not interfere merely with a view of enforcing contracts, on which actions might be brought, in a more speedy and less expensive mode ; but with a view to securing honesty in the conduct of its officers, in all such matters as they undertake to perform or see performed, when employed as such, or because they are such officers." To punish, " by attachment, misconduct or disobedience in its officers " would seem to be the main object for which the Court interferes on motion (n) in the class of cases referred to. Indeed, the jurisdiction of a Court of law on motion, not (h) Ee Aithin, 4 B. & Aid. 49 ; Ex of gross fraud, although the fraiid is parte Bodeiiham, 8 Ad. & E. 959 ; Re neither such as renders him liable to Lord Ca/rdross, 5 M. & W. 645. an indictment, nor was committed by G?he Courts will, in some cases, on him while the relation of attorney and equitable principles, interfere between client was subsisting between him an attorney and his articled clerk, to and the person defrauded, w in his order that the premium paid by the character as an aMorney, " his miscon- latter be refunded wholly or in part : duct will be summarily punished. Ex parte Bayley, 9 B. & C. 691 ; Ex (m) 2 D. & L. 919. pajrte Fisher, 1 Chit. E. 694 ; ExpaHe (n) See Thompson v. Gordon, 15 M. PrarJcerd, 3 B. & Aid. 257 ; In re & W. 610 ; Ex parte Clifton, 5 D. P. Thompson, 1 Exch. 864. C. 218 ; Duncan t. Richmond, 7 Taunt. (I) In Se Blake, 3 E. & E. 38 ; Cock- 391 ; Collins v. Johnson, 16 C. B. hwn, C. J., states the rule adverted 589; OvMfwd r. Sims, 13 C. B. 371. to supra thus broadly, "That where an See R. G. Pr., r. 3 ; Meux v. Lloyd, 2 attorney is shown to hare been guilty C. B., N. S., 409. « 2 228 EXTRAORDINARY REMEDIES. merely over its officers, but generally, is essentially regulated by its discretion, in the exercise whereof an extraordinary remedy will sometimes be extended to an applicant, in pur- suance of the great principle, that " where there is a right there is a remedy ; " — sometimes it will be refused, viz., where private convenience is made to bend to general considera- tions of expediency or motives of policy. The extraordinary jurisdiction exercised by our legal tri- bunals in cases other than those above alluded to, is for the most part : 1, by writ of mandamus ; 2, by writ of injunc- tion ; 3, by writ of prohibition ; 4, by proceedings in the nature of a writ of quo wai-ranto ; 5, by writ of certiorari ; 6, on interpleader ; 7, by garnishment ; 8, by summary pro- ceedings for the recovery of possession of small tenements ; 9, by proceedings for the specific delivery of chattels ; 10, by criminal information ; 11, by writ of habeas corpus ; 12, by petition of right and monstrans de droit. Mandamus. 1. The Writ of TTiaudaTnus is termed a high prerogative writ (o) issuing in the Queen's name out of the Court of Queen's Bench on special application made to it by motion. The writ commands those to whom it is directed to perform some specified duty (p). It is granted on the oath of the party injured, where he "hath aright to have anything done, and hath no other specific means of compelling its perform- ance" (g) ; and also sometimes where the method of redress provided by the law is tedious or incomplete (r) j the Court, (o) As to the meaniag of the term citing S. v. Bishop of Cheater, 1 T. K. "prerogatiye" as applied to the writ 404; Frosty. Mayor, Sc, of Chester, of Mandamus, see Tapping on Manda- 5 E. & B. 531 ; and R. v. Marquis of mus, p. 4 ; per Lord Mansfield, 0. J., Stafford, 3 T. E. 652. SeeiJr. Aslcew's R. Y. Cowle, 2 Bur. 855 ; R. v. case, Burr. 2188-9 ; R. v. St. Eathe- Eeathcote, 10 Mod. 54. rine's Bock Co., 4 B. & Ad. 360 ; R. (p) 3 Bla. Com., p. 110. v. Severn and Wye R. 0., 2 B. & Aid. (q) See Mayor of Rochester v. Reg., 646, commented on per Lord Denman, E. B. &E. 1031, 1033. C. J., Rq/. v. OamUe, 11 Ad. & E. (r) See per Sir W. Follett, arguendo, 72. Vdey V. Burder, 12 Ad. & E. 266, EXTRAORDINARY REMEDIES. 229 however, will refuse to exert its extraordinary powers of redress by mandamus, where the ordinary remedy by action at law is adequate to enforce the legal right in question (s). And although a mandamus will be granted "when that has not been done which a statute orders to be done," it will not be allowed to go " for the purpose of undoing what has been done" (t). The proceeding by mandamus appears indeed to have been " originally confined in its operation to a very limited class of cases affecting the administration of public affairs ; such as the election of corporate officers, the restoration of officers improperly removed, the compelling inferior courts to proceed in matters within their jurisdiction, or public officers to per- form duties (u) imposed upon them by common law or by statute, as to make a rate and the like " (x). In more recent times, however, the applicability of the remedy in question has been extended, not merely to the cases first above men- tioned, but to some others. In the course of modern legis- lation, no session of Parliament occurs in which Acts of Par- liament do not pass for making railways, forming docks, building bridges, improving towns, and for carrying out an infinite variety of public works, for the most part to be done by joint-stock corporations or companies for the benefit of shareholders. Now in almost every Act of this kind, pro- visions are to be found, which direct that the company shall do certain works for the benefit of individuals, exgr., "making communications between lands intersected by works autho- rised by'the Acts, substituting new buildings for others which (s) Reg. T. HuU and Selby R. C, 6 r. Commissioners of SoutJiampton, 1 B. Q. B. 70 ; R^. v. Hopkins, 1 Q. B. & S. 5. 161; Reg. t. Cliapter of St. Peter's, {t) Per Lord Camplell, C. J., Bx Exeter, 12 Ad. & E. 512 ; Reg. v. parte Nash, 15 Q. B. 95. Mayor, &c., of Oxford, 6 Ad. & E. iu) See Mayor of Rochester -y. Reg., 349 ; R^g. v. Bristol and Bxeter R. C. , supra, n. (g) ; Reg v. Mainwaring, E. 3 Eailw. Cas. 777. See Moffatt ,. B. & E. 474. Dickson, 13 C. B. 543 ; Ex pwrte Over- (x) C. L. Com., 2nd Rep., p. 40. seers of Downton, 8 E. & B. 856 ; Reg. 230 EXTEAORDINAEY REMEDIES. have been necessarily removed, making roads and communi- cations in lieu of old ones blocked up or injured," and various other works of a similar character {y). In the event of non- comphance with these enactments, the individual who suffers detriment therefrom may resort to the remedy of mandamus. Further, the Court of Queen's Bench will in general exer- cise control over inferior courts by mandamus, when the latter, having jurisdiction, refuse to act {z) ; but the writ is never granted on the ground that in any particular case the Court below has come to an unjust or improper conclu- sion (a). It is also sometimes issued in aid of legal pro- ceedings, as by ordering that a creditor of a company should be at liberty to inspect the register of the shareholders with a view to his issuing execution against them (t) — or by com- manding a clerk of a County Court to issue execution after judgment recovered (c), — or it may issue to the mayor and assessors of a borough commanding them to revise the bur- gess list (cZ). Return to It may be observed, that the writ, in the first instance, the writ. •' .' . commands the party to whom it is addressed to do the act required, or to make a return thereto, by showing cause [y) C. L. Com., 2nd Eep., p. 40, of the peaxse may have refused to per- where the reader will find the former form : Beg. v. DevereU, 3 E. & B. practicerelatingtomandamus described. 374; S^. v. Justices of Bristol, li. (z) Eeg. V. Brown, 7 E. & B. 757. 479, note. (a) Reg. v. Justices of Worcester- (b) Reg. t, Derbyshire, cfcc, Co., S sliire, 3 E. & B. 477 ; Sturgis v. Joy, E. & B. 784 ; Reg. v. Harrison, 9 Q. 2 E. & B. 740 ; Reg. v. Welch, 2 E. & B. 794. B. 357 ; Reg. t. Archbishop of Can- (c) Reg. t. Fletcher, 2 E. & B. 279. terbury, 11 Q. B. 483 ; Reg. v. Fletcher, When it is doubtful whether the act 2 E. & B. 279. See Ex parte Mawby, to be done in pursuance of a mandamus 3 E. & B. 718. issued to a county court judge would The 11 & 12 Vict. u. 44, s. 5, has not subject him to an action, the rule provided a procedure'by rule, which may will not be granted : Reg. v. Dovoling, be employed instead of that by man- 2 E. & B. 204. damns, for the purpose of determining {d) Mayor qf Rochester v. R^., E. any question as to the legality or ille- B. & E. 1024. gality of any official act, which a justice EXTEAOEDINARY REMEDIES. 2.31 why he does not do it (e) ; and unless he does the act or succeeds in quashing the writ as being insufficient on the face of it, he must proceed in answer to the writ either by plea or demurrer, — -but if judgment is given against him, the Court then awards a peremptory mandamus, and in cases of pri- vate injury, damages and costs (/). When a rule is applied for, asking that a writ in the alternative shall thus issue, such a rule may be nisi only, or may be absolute in the jBrst instance, and, if the Court shall think fit, it " may bear teste on the day of its issuing, and may be made returnable forthwith, whether in term or in vacation " (jg). A peremptory writ of mandamus may also issue after judgment recovered in an action of mandamus, founded upon the C. L. Proc. Act, 1854 (h). When under this Statute, "judgment shall be given for the plaintiff that a mandamus do issue, it shall be lawful for the Court in which such judg- ment is given, if it shall see fit, besides issuing execution in the ordinary way for the costs and damages," (in those cases where they are claimed in addition to the writ of mandamus) " also to issue a peremptory writ of mandamus to the defend- ant commanding him forthwith to perform the duty to be enforced " (i) ; and a writ so issued will have the same force as " a peremptory writ of mandamus issued out of the Court of Queen's Bench, and in case of disobedience may be en- forced by attachment " (k). (e) See Beg, v. Commissioners of mandamus." The otier statutes, by Southampton, IB. & S. 5. which proceedings by mandamus are (/) As to the costs of these proceed- regulated, are 4 Anne, o. 16 ; 9 Anne, ings, see Seg. t. Justices of Surrey, 9 u. 20 ; 1 Will. 4, c. 21 ; 6 & 7 Vict. c. Q. B. 37 ; Heg. r. Harden, 1 B, C. C. 67. By the last-mentioned stat., s. 2, 214 ; Reg. t. South Eastern E. C, Z a judgment in mandamus may be taken H. L. Ca. 471. into a Court of error ; see for instance, (g) C. L. Proc. Act, 1854, s. 76. Reg. v. SadcOers' Co., 4 B. & S. 570 ; By s. 77, the provisions of the C. L. S. C, 10 H. L. Ca. 404. Proc. Acts, "so far as they are appli- (h) Ante, p. 128. cable, shall apply to the pleadings and (i) C. L. Proc. Act, 1854, rf. 71. proceedings upon a prerogative writ of (i) Id., s. 73. ' 232 EXTRAOKDINAEY REMEDIES. Injunction. ProMbition. Prohibition to Ecclesias- tical Court. 2. Of the writ of injunction also given to the superior Courts of Common Law by the C. L. Proc. Act, 18o4< {I), I have already spoken (m). The proceedings in connection with it are required to be the same as nearly as may be, and subject to the like control, as in an action to obtain a mandamus [n). 3. The writ of prohibition issues out of a superior Court at Westminster (o), and is directed to the Judge of an inferior Court, or the parties to a suit therein, or both conjointly, requiring that the proceedings which have been commenced there be either conditionally stayed or peremptorily stopped (p). The object of the writ is the keeping of the Court to which it is directed within its proper jurisdic- tion (q), or to repress the assumption of authority by any pretended court (r). The writ of prohibition may issue to a court ecclesias- tical (s), where something is being done by it "contrary to {I) C. L. Proc. Act, 1854, ss. 79-82. {m) Ante, p. 129. (n) C. L. Proc. Act, 1854, ». 81. (o) Com. Dig. Prohibition (B.) ; Anon., 1 P. "Wms. 476 ; Blackborouyli y. Davis, Id. 43. See 13 & 14 Vict, c. 61, s. 22. As to whether the granting of a pro- hibition is ex debito justitise or discre- tionary, see Bac. Abr. Prohibition (B. ), {p) Anon., 6 Mod. 308 ; Bac. Abr Prohibition (P.). (5) Com. Dig. Prohibition (C.) Salk. 552 ; Meg. v. Herfm-d, 3 E. & E, 115, which shows that prohibition may issue to a Court having criminal juris diction. ()•) diamiers v. Jennings, Salk. 553. (s) In earlier times, one of the main uses of the writ of prohibition was to restrain the jurisdiction of the Ecclesi- astical Courts ; and the reader is re- ferred to Coke, 2nd Inst. tit. " Articuli Cleri " for the history of the disputes between the common law and ecclesi- astical courts, in respect of the prohi- bitions issued to the latter by the former ; he will there also learn how it happens that the grounds for a prohibi- tion against a spiritual court (the prac- tice of which is founded on the civil law) are in some respects different from those upon which the writ is granted against other inferior couiis. See per Coltman, J., Toft v. Rayner, 5 C. B. 162 ; Norris, app., Carrington, resp., 16 C. B., N. S., 396. Many authori- ties as to granting this writ are collected in the notes to Ex parte Tucker, 1 M. & Gr. 519. See also HaXlaek v. Cam- Iridge Univ., 1 Q. B. 593 ; Re Dean of York, 2 Q. B. 1 ; Bwrderr. Yeley, 12 Ad. & E. 233 ; Ex parte Denison, 4 E. & B. 292 ; In re Gorham v. Sishop of Exeter, 5 Exch. 630 ; S.' 0., 10 C. B. 102 ; 15 Q. B. 52. EXTRAORDINARY REMEDIES. 233 the general law of the land, or manifestly out of the jurisdic- tion of the court " (t). Thus, if an ecclesiastical court "meddle with a matter purely temporal " (u), civil, or criminal (x), or with a wrong for which at common law there is a remedy (y), it oversteps its jurisdiction — and so where, either in the construction of a statute the spiritual court errs, or where a suit therein is "" determined contrary to the right by the common law " (s), the remedy is by prohibition. This principle indeed of the pre-eminence of the common law is broadly laid down by "Lord ELlenhoTOugh, C. J., when he says, "The Courts of common law have in all cases in which matter of temporal nature has incidentally arisen, granted prohibitions to courts acting by the rules of the civil law, where such courts have decided on such temporal matters in a manner different from that in which the Courts of common law would decide upon the same " (a). llie jnrisdictionof the Ecclesiastical Courts has been greatly abridged by stats. 20 & 21 Vict. cc. 77 & 85. (*) Per lAttledale, J., Ex parte Smyth, 3 Ad. & E. 724 ; per TaZfourd, J., Ex parte Stm-y, 12 C. B. 777 ; Vin. Abr. Prohibition (Q.). Where the judge of any inferior court, spiritual or temporal, is inte- rested in a cause, a prohibition will issue to restrain him from hearing it. See Ex parte Medmn, 1 E. & B. 609. See also Keg. t. Jiistices of Hertford- shire, 6 Q. B. 753 ; Dimes t. Grand Junction Canal Co., 3 H. L. Ca. 759. («) As opposed to mere " spiritualia : — sic dicta quia nou habent mixturam temporalium :" 2 Inst. 488. (x) Bac. Abr. Prohibition (L. ). • {y) Galizard v. SigauU, Salk. 552 Free t. Burgoyne, 5 B. & C. 400 Townsendv. Thorpe, 2Ld. Ilaym.1507, As to what was ' ' ecclesiastical slan der,'' see Smith v. Wood, Coxeter v. Parsons, 2 Salk. 692 ; and Acebery y. Barton, Id. 693. But the 18 & 19 Vict. ti. 41, abolishes the jurisdiction of ecclesiastical courts for defamation. {z) Com. Dig. Prohibition (G. 23) ; per Lord Ellenborough, C. J., Gould v. Gapper, 5 East, 366 ; Ex parte Med- win, 1 E. & B. 609 ; Ex parte Story, 12 C. B. 767 ; per liarA. Eenyon, C. J., Leman v. Goulty, 3 T. K. 4 ; Duke of Rutland v. Bagshawe, 14 Q. B. 869. Where the jurisdiction in the common law and ecclesiastical courts is concur- rent, the proceedings in the latter must be pro salute animse — to punish the sin, not to recover damages : Bac. Abr. Pro- hibition (L. 5). {a) Gould V. Gapper, 5 East, 371 ; Breedon v. Gill, 5 Mod. 272 ; Bac. Abr. Prohibition (L. 5). But where the spiritual court has sole jurisdiction, its proceedings need not be goTCrned by the rules of common law : Com. Dig. Prohibition (G. 22). 234 EXTEAOEDINARY REMEDIES. Prohibition Prohibition to the temporal courts is limited to those cases to the tern- - -,,-., ,-,^ porai courts, where they act either without, orm excess of jurisdiction {o). Thus the writ will not lie in respect of mere irregularities which may have occurred in the proceedings of the inferior court (c), nor because the Judge, in deciding any particular question properly before him, has erred in his judgment upon the law (cf) ; but the applicant (e) may be put to declare in prohibition if the question raised on argument appear doubt- ful (/), or, perhaps, if it is required by the party against whom the application is made (g). In the declaration must be set forth the grounds on which the prohibition is de- manded ; to this declaration " the party defendant may demur or plead such matters by way of traverse or otherwise as may be proper to show that the writ ought not to issue " (A), and the proceedings are then continued as in an ordinary action to judgment (i). If the verdict and judg- (b) See Mayor, &c, , of London v. Cox, L. E. 2 H. L. 239 ; Tinniswood T. Pattison, 3 C. B. 243 ; IMey T. Harvey, 5 D. & L. 648; Zohrab-r. Smith, Id. 639 ; Jones r. Jones, Id. 628 ; Marsden t. Wardle, 3 E. & B. 695 ; Thompson v. Ini/ham, 14 Q. B. 710 ; Re Bowen, 21 L. J., Q. B., 10. Ea/rl of Harrington t. Ramsay, 8 Exch. 879 ; S. C, 2 E. & B. 669 ; Mossop v. Great Northern R. C, 16 C. B. 585, 17 C. B. 130. (c) Ex parte Story, 8 Exoh. 195. But see Ex parte M'Eee, 9 Exch. 261. {d ) Ex parte Rayner, 5 C. B. 162 ; Ellis T. Watt, 8 C. B. 614. See 13 & 14 Vict. o. 61, s. 22, 19 & 20 Tict. u. 108, ss. 40-42, in respect of tlie writ issuing to tie judge of a county court. As to writs of prohibition to the Ad- miralty Courts, see In re Place, 8 Exch. 704 ; Lord Camden t. Home, 4 T. E. 382 ; to the Vice-Chancellor, &c., of the University of Cambridge, see Ex parte Death, 18 Q. B. 647 ; to sheriff and commissioners, under 9 & 10 Vict. c. 38, see Chabot v. Lord Morpeth, 15 Q. B. 446 ; to magistrates to stay proceedings, even after convic- tion, Rich V. A nderson, 3 Ir. Ch. Eep. 463 ; R. V. Biirnaby, 2 Ld. Kaym. 900. (e) As to who may apply for the writ, see Com. Dig, Prohibition (E.) ; 2 Inst. 607 ; Wadsworth v. Queen of lin, and De Haher v. Queen of Por- a, 17 Q. B. 171. (/) Exparte Tucker, 1 M. & Gr. 534 ; Mossop V. Ch'eat Northern R. C, 16 C. B. 585. (g) Remington v. Dolby, 9 Q. B. 167. (h) 1 Will. 4, 0. 21, s. 1. (i) As to the time at which a prohi- bition should be applied for, see FuU v. Hutchins, Cowp. 422 ; RicTcetts v. Bo' de-nham, 4 Ad. & E. 441 ; Byerley v. Windus, 5 B. &'C. 1. EXTRAORDINAEY REMEDIES. 235 ment be for the plaintiff, the writ of prohibition issues (Jc), and all proceedings must be suspended, by those to whom it is directed, upon pain of attachment. It only remains to notice that a prohibition may issue in some instances after judgment (t) has been given below ; and though it cannot go after execution has been completed (m), yet when goods seized in execution remain unsold in the hands of the high bailiff, the writ may go to stay further proceedings (n). 4. The writ of Quo Warranto — ^now obsolete — was a writ ^^^J'*'" of right of the Crown, issuing out of the Queen's Bench, and lay only in respect of an usurpation on the rights or preroga- tive thereof (o). Proceedings by information (p) in the nature of a writ of quo warra/nto are now substituted in the place of the ancient writ, and considerable light has been thrown upon their applicability and scope by the judgment in Barley v. Reg. (q), where it is said that the writ was wont to be brought for property of or franchises derived from the Crown ; but the practice of filing informations also by the Attorney-General ex officio, in lieu of this writ, is very ancient (r). In modem times moreover (before the 9 Anne, c. 20, which regulated such proceedings, but did not, as has sometimes been said, first give rise to them), informations have been exhibited by the king's coroner and attorney, at (i:) H, after tte writ haa been issued, A clause oontaining an order of resti- it appears to tlie Court ttat it ought tntion is sometimes inserted in a writ not to haTe been granted, a writ of con- of prohibition : JoJies t. Owen, 5 D. & sultation may go, which in fact resolves L. 669. the prohibition : 18 Edw. 1, st. 2 ; 3 (o) Per Lord Kenyan, C. J., Kincf Bla. Com., p. 114. v. Shepherd, 4 T. K. 381 ; Frost v. (l) Marsden v. Wwrdle, 3 E. & B. Mayor of Chester, 5 E. & B. 531. 695 ; Com. Dig. Prohib. (D.) ; 2 Inst. (p) As to the meaning of the term 602. "information,'' see post. (m) BoUnson v. Lenaghan, 2 Bxch. (. 1. what. CONTRACTS GENERALLY. 279 or annexed to^t, the bond is said to be single; but there is in general a condition added to the bond in the nature of a defeasance, stipulating that if the obligor duly performs the act specified, the obligation shall be void, otherwise that it shall remain in full force. In case this condition is not per- formed the bond becomes forfeited (Jc), so that the entire penalty named therein was formerly recoverable at law. Now, however, by virtue of the stat. 4 & 5 Ann. c. 16, ss. 12 and 13, in the case of a bond conditioned for the payment of money, the payment of the principal sum due, with iaterest and costs, even though the bond be forfeited, and a suit has been commenced thereon, will be a full satis- faction and discharge (I). Also, by the stat. 8 & 9 Will. 3, c. 11, s. 8, damages and costs of suit only are recoverable in an action upon a bond executed by way of security for the performance of covenants contained in any deed or indenture (m). Of specific properties inherent in a deed, the first to be Doctrine of ■^ -*■ -^ merger as noticed is that of merger. A deed being of a higher nature tJ§g^"° than a simple contract, will, if given or entered into in seneraUy. relation to the same subject-matter, altogether merge or swallow up the latter, and extinguish any right of action which might have been founded upon it {n). For instance, by the acceptance of a bond for a simple contract debt, the debt (according to the accustomed phraseology) will merge in the higher security (o) ; and if a covenant be entered into to {k) 2 Bla. Com. 340. The condi- ever, merged by giving a bond ; because tion of a, bond being for the benefit of rent is a specialty debt : per Cresswell, the obligor must, in general, be strictly J., 10 C. B. 574 ; Bull. N. P., 7th ed., performed : Hurlstone on Bonds, Ch. 2, 182 a. Nor can one bond merge an-' s. 3. other bond : 6 Eep. 45 b. (t) 2 Bla. Gom. 341. (o) Bac. Abr. Oblig. (D.) ; Higgena'i (m) As to the effect and operation case, 6 Kep. 44 b ; per Lord Ellen- of this enactment, see Hurlstone on borough, C. J., Drake r. Mitchell, 3 Bonds, pp. 129, 131. Bast, 251 ; see Mowatt v. Loi-d Lon- (») A debt due for rent is not, how- desborough, 4 B. & B. 1. A specialty 280 CONTRACTS GENERALLY. pay a sum of money actually due, the remody thencefortli must be upou the covenant, and not upon the original cause of action (p). In Middleditch v. Mlis (q) it is observed, — " The general ■principle is clear, that, where a debt is secured by a bond, covenant, or other specialty, there the obligation by simple ■contract is gone : the lesser security is merged in the greater ; " and the principle thus stated was forcibly applied by the Court to the facts before them in the case just men- tioned. There the plaintiff was mortgagee under a mortgage from the defendant, with a power of sale ; the mortgage deed containing the ordinary covenant by the defendant to pay the principal sum secured, with interest. The mortgaged property was sold by the plaintiff under the power thus given, but did not produce sufficient to discharge the debt due to him ; and a meeting afterwards took place between the plaintiff and defendant, at which an account was stated between them charging the defendant with the full amount of principal and interest, and giving him credit for the net proceeds of the sale. It was held upon these facts, that an action of debt upon the account stated would not lie, the balance found to be due thereby from the defendant to the • plaintiff having in truth arisen upon the deed, and not upon the subsequent settlement (r). In order to trace out the full operation of the doctrine of merger, let us suppose that A., being indebted to B. in the sum of 1001. for goods sold and delivered, accepts a bill of exchange drawn upon him by B. at a date certain for that amount, and that the bill is taken by B. in lieu of immediate payment, the effect of this transaction will be to suspend or postpone, until the bill falls due, B.'s right of action against does not, strictly speaking, " merge or 10 0. B. 573. extinguish the debt; but it merges the {p) Post, p. 281. remedy by way of proceeding upon (q) 2 Exch. 623. the simple contract ; " per Maule, J., (?•) See Fetch v. lA/on, 9 Q. B. 147. CONTRACTS GENERALLY. 281 A. ia respect of the goods sold (s). Let us next suppose, that the bill thus given is dishonoured at maturity, and that B., in lieu of then proceeding against A., as he would be en- titled to do, in respect either of his original demand or upon the bill, agrees to take A.'s bond in the penal sum of 200?., conditioned for the payment to B. of the lOOl. above men- tioned, and interest thereupon, at some future day. Now, if default be made in payment of the amount thus secured, -the only remedy at law available to B. against A will be by action upon the bond, his right of suit, whether in respect of his original claim or of the bill, having become merged in and extinguished by the instrument under seal. To pursue this inquiry a step further, let us suppose that B. recovers judgment in an action of debt upon the bond against A, the sole mode of obtaining satisfaction from his debtor thence- forth available to B. wiU be upon the judgment in which the bond debt will itself have become merged, in accordance with a principle ah-eady explained, and which is expressed by the legal phrase transit in rem judicatam (t). But although the doctrine of merger in connection with specialties is in theory thus simple, difficulty occurs not unfrequently in applying it, for the rule in question is subject to some qualifications, which must now accordingly be noticed. "In general," says Bayley, J., in Twopenny v. Young (u), " where a simple contract security for a debt is given, it is extinguished by a specialty security, if the remedy given by the latter is co-extensive with that which the creditor had upon the former." Observing the qualification thus intro- duced into the rule, we may conclude that a bond given for a limited sum would not operate to merge a debt of indefinite amount (x), and that the contract under seal of a. surety will (a) Ante, p. 113. (u) 3 B. & 0. 208. (t) Leg. Max., 4tlied., p. 330. See (x) Norfolk R. G. v. M'Namara, Florence v. Jenmgs, 2 0. B., N. S., 454. 3 Exoh. 628, 631. 282 CONTRACTS GENERALLY. not by operation of law extinguish the simple contract debt of the principal {y). So, if one of two makers of a joint and several promissory note executes to the holder a mortgage to secure the amount, and covenants therein to pay it, the other maker is not thus discharged ; the remedy given by the specialty being confined to one of the debtors only, and therefore not co-extensive with that which the creditor had upon the note (0). Where indeed it clearly appears on the face of an instru- ment under seal that the intention of the parties to it was, that the original debt secured thereby should continue to exist, or that the security (if any) previously given should remain in force, ejBFect will be given to their intention (a). Estoppel Inasmuch as a deed is a '' solemn and authentic act,'' " a by deed, ' man," says Sir William Blackstone (6), " shall always be estopped by his own deed, or not permitted to aver or prove anything in contradiction to what he has once so solemrdy and deliberately avowed." " The principle," says Taunton, J. (c), " is that, where a man has entered into a solemn engagement by deed under his hand and seal as to certain facts, he shall not be permitted to deny any matter which he has so asserted." As illustrating th^ operation of the rule just stated, Norton V. The Westminster ImproveTnent Commissioners (ff) may be consulted. There the plaintiff sued upon a bond, the con- dition of which recited that, by virtue of certain Acts of {y) White V. Cuyler, 6 T. E. 176 ; (c) Sawman v. Taylor, 2 Ad. & E. HolTMsy. BeU, 3 M. & Gr. 213. 291. "The principle of estoppel is (s) Ansdl y. Baker, 15 Q. B. 20; that, whether there be a cause of action Sha/rpe t. Gibbs, 16 C. B., N. S., 527 ; or not, the party cannot allege it: " Boaler v. Mayor, 19 Id. 76 ; Solly per Coleridge, J., Parkea v. Smith, 15 v. J'orbes, 2 Brod. & B. 38 ; Twopenny Q. B. 312. V. Yoimg, 3 B. & C. 208. (d) 7 Bxoh. 780, and cases there (a) SoalerT. Mayor,19 G.'B.j'S.S., cited; London and Continental Ass. 76, 82, 83, explaining Price v. Moul- Soc. r. Redgrave, 4 0. B., N. S., 524 ; ton, 10 C. B. 561. Bowman t. Taylor, snpra ; SiMs v. (6) 2 Oom. 295. Laming, 9 Bxch. 256. CONTEACTS GENERALLY. 283 Parliament, the defendants were authorised to borrow money for the purposes thereof, &c. ; and that they in pursuance of the Acts, had borrowed of one P. a certain sum of money " for enabling them to carry the purposes of the said Acts into execution." To the declaration which set out the above condition, the defendants pleaded, inter alia, that ' they did not, in pursuance of the said Acts of Parliament, boiTOw of P. the said sum, or any part thereof, for enabling them to carry the purposes of the Acts or any or either of them into execution, nor was the same lent or advanced by P. or any other person for those purposes.' This plea was on demurrer held bad, on the ground that the defendants were estopped by their deed from setting up the defence disclosed in it (e). Precisely to a similar effect it was decided in Hill v. The Proprietors of the Manchester Water-worlcs (/) that the obligor of a bond reciting a certain consideration is estopped from pleading that the consideration was in fact different from that recited. Both the foregoing cases, besides exemplifying the doctrine of estoppel by deed, may usefully be consulted with reference to this important qualification of it — that a deed is not in all cases conclusive by way of estoppel, but is impeachable for fraud or illegality. The leading authority, however, in support of the quali- comns v. fication just specified of the doctrine of estoppel by deed is Collins V. Bla/ntern (g), which established that illegality may be pleaded as a defence to an action on a contract under seal. There, to a declaration in debt on a joint and several bond for 7001. the defendant pleaded the following facts : — 'That, before and at the time of making the bond in question, and the promissory note presently mentioned, his (the defendant's) (e) But in an action on a bond ments. D'Arcy v.Tamar, (be, B. 0., against a company, it is a good defence L. E,. 2 Ex. 158. that the seal of the company was (/) 2 B. & Ad. 544. affixed -without lawful authority, re- (g) 2 Wils. 341. gard being had to statutory require- 284 CONTRACTS GENERALI-Y, co-obligors, together with three other parties, stood indicted at the suit of one John Rudge for wilful and corrupt perjury, and had severally pleaded not guilty to the charge ; that, when the trial was about to come on, it was agreed between John Rudge (the prosecutor), the plaintiff, and the parties indicted, that the plaintiff should give to the prosecutor his note for 350?. as a consideration for his not appearing to give evidence at the trial ; it being further agreed that the bond sued upon should be executed by the defendant Blantern and his co-obligors to the plaintiff, to indemnify him in respect of the note on which he had, as just mentioned, become liable to the prosecutor. Upon general demurrer to the above plea, it seems to have been mainly contended on behalf of the plaintiff, that, the bond appearing on the face of it to be good and lawful, no averment could be admitted to show that it had, in fact, been given upon an illegal consideration. In the judgment delivered by Wilmot, C. J., in the above celebrated case, three points solemnly discussed demand our attention : — 1. Whether, on the facts alleged, the considera- tion for giving the bond was illegal. 2. Whether a bond given for an illegal consideration is void at common law ab initio. 3. Whether, supposing the bond to be void, the facts disclosed in the plea to show that it was so, could by law be averred and specially pleaded. With regard to the 1st point above specified, the Court remarked, " This is an agreement to stifle a prosecution for wilful and corrupt perjury, a crime most detrimental to the commonwealth ; for it is the duty of every man to prosecute, appear against, and bring offenders of this sort to justice " {h). . . . . " The promissory note was certainly void : what right, (h) See Kdr v. Leeman, 6 Q. B. 8 C. B. 100 ; Alleyne v. Reg., 5 E. & 308 ; S. a, 9 Q. B. 371 ; Reg. v. B. 399 ; WUHams t. BayUy, L. R. 1 Hardey, 14 Q. B. 529 ; Reg. y. Blake- H. L. 200 ; aubl v. HuUrni, 18 C. B., more, Id. 544; Masters v. Ihberson, N. S., 414. CONTRACTS GENEKALLY. 285 then, hatli the plaintiff to recover upon this bond, which was given to indemnify him from a note that was void ? They are both bad, the consideration for giving them being wicked and unlawful." As to the 2nd point, the Court held the bond to be void ab initio, according to the principle laid down in the Insti- tutes of Justinian (i). Quod turpi ex causd promissum est, veluti si quis homicidium vel sacrilegium se facturum pro- mittat, non valet. " This," the Court proceeded to observe, with reference to the case before them, " is a contract to tempt a man to trans- gress the law, to do that which is injurious to the com- munity ; it is void by the common law, and the reason why the common law says such contracts are void is for the public good. You shall not stipulate for iniquity. All writers upon our law agi-ee in this, — no polluted hand shall touch the pure fountains of Justice. "Whoever is a party to an unlawful contract, if he hath once paid the money stipulated to be paid in pursuance thereof, he shall not have the help of a Court to fetch it back again." As to the 3rd point, viz., whether the matter relied upon as a defence could be pleaded ? the Court remarked — " It is now objected as a maxim, that the law will not endure a fact in pais dehors a specialty to be averred against it, and that a deed cannot be defeated by anything less than a deed, and a record by a record (k) ; and that, if there be no considera- tion for a bond, it is a gift. I answer that the present condition is for the payment of a sum of money, but that payment to be made was grounded upon a vicious con- sideration, which is not inconsistent with the condition of the bond, but strikes at the contract itself in such a manner (i) I. 3. 20. 24. M. & W. 453. See the authorities (i) An obligation by record may, cited Leg. Max., 4th ed., pp. 842 et however, be released by deed : per seq. ParJce, B., Ba/rleer v. St. QuwMn, 12 286 CONTRACTS GENEEALLY. as shows that in truth the bond never had any legal entity; and if it never had any being at all, then the rule or maxim, that a deed must be defeated by a deed of equal strength does not apply to this case. The law will legitimate the showing it void ah initio, and this can only be done by pleading " (V). It would be wholly unnecessary to cite many cases at length (m), with a view to fortifying the conclusions arrived at on arguments so convincing as those above abstracted ; but I cannot refrain from directing attention to some few additional authorities in regard to the particular qualification of the rule as to estoppel by deed now under consideration. In The Gas Light and Colee Company v. Turner (n), a plea to an action of covenant for rent due under a lease alleging that the premises in question were demised to the defendant for an unlawful purpose, was held to be good. "The objection that has been urged on the part of the defendant," said Tindal, C. J., delivering the judgment of the Court in that case, " is, that this is an action founded upon a contract, and that a Court of law will not lend its aid to enforce the performance of a contract between parties which appears upon the face of the record to have been entered into by both the contracting parties for the express purpose of carrying into effect that which is prohibited by (Z) As to the mode of raising the de- premises held under a written agree- fence of fraud or illegality in answer to ment into which defendant had been an action on a deed, see further, post, induced by plaintiff's misrepresenta- p. 290. tions to enter. Ejectment was held (m) See Duvergier v. Felhwes, 1 01. maintainable, inasmuch as an interest & F. 39 ; Simpson v. Lord Howden, in the demised premises had actually 9 CI. & F. 61 ; Jones v. Waite, Id. passed by the agreement. The ground 101 ; Evans v. Edmonds, 13 C. B. of the decision in Feret v. HiU is 777; Oamham v. Eai-ry, 15 C. B. stated per Maule, J., 15 0. B. 611 ; 597. et vide per Blachburn, J., Beg. v. (n) 5 Bing. N. C. 666 ; S. O., 6 Id. Saddlers' Co., 32 L. J., Q. B., 343. 324, with which compare Feret v. SUl, See also Lord Ward v. Lumley, 5 H. 15 C. B. 207 : there plaintiff had been & N. 87. foroilte expelled by defendant from CONTRACTS GENERALLY. 287 the law of the land. And we think, both from authority and reason, this objection must be allowed to prevail. That no legal distinction can be supported between the application of this objection to parol contracts and to contracts under seal appears the necessary inference from the cases of Collins V. Blantem (o) and Paodon v. Popham (p), in both which cases the principle above laid down was acted iipon by the Court ; and in each of which the action was upon a bond ; and it would, indeed, be inconsistent with reason and prin- ciple to hold, that, by the mere ceremony of putting a seal to an instrument, that is, by the voluntary act of the parties themselves, a contract which was void in itself on the ground of its being in violation of the law of the land, should be deemed valid, and an action be maintainable thereon in a Court of justice." In Biggins v. Pitt (q), the plaintiff sued for the breach of a covenant contained in a composition deed, whereby the defendant and others had covenanted to indemnify the plaintiff from all loss, &c., in respect of certain acceptances of his outstanding at the execution of the said deed. To this declaration the defendant pleaded that before executing the said indenture an agreement was entered into between the defendant, J. H. (his partner), and the plaintiff, under which the defendant and J. H. were to receive from the plaintiff more than his other creditors. The Court held this plea to be good, on the ground that every such secret bargain is a fraud on the creditors and void when it is made (r) ; so that it cannot be enforced even against a parti- ceps cri/minis (s). In Mallalieu v. Hodgson (t), the effect of fraud in invali- dating a deed was also much considered. There, to a count (o) Ante, p. 283. (s) See Atkinson v. Denby, 7 H. & (p) 9 East, 408. N. 934 ; S. O., & Id. 778. iq) 4 Exch. 312. (t) 16 Q. B. 689, and cases cited Id. (r) See -^t Mdlor, J., Dcmglish v. 706, 707. See per Parhe, B., Smith Tennmt, L. E. 2 Q. B. 54. v. Sakmami, 9 Exch. 543. 288 CONTRACTS GENEEALLY. for goods sold and delivered, money lent, &c., a release was pleaded. To this plea the plaintiff replied, that the release was had and obtained from him by the fraud, covin, and misrepresentation of the defendants and others in collusion with them ; to which the defendants rejoined a denial that the release was obtained by fraud, &c., as alleged. It appeared by the evidence in this case that the defendants, being indebted to several persons, and, amongst others, to the plaintiff, proposed a composition, which was agreed to by the majority of the creditors, but was refused by the plaintiff, unless upon the condition that he was paid more than the other creditors upon one part of his debt, and, as regarded the other part, was paid in full. Upon receiving notes for the amount agreed upon, and being assured by the defendants that no other creditor than himself was preferred, he signed a release for his entire debt. The assurance of the defendants, however, that no other creditor was pre- ferred was untrue. Under the circumstances here detailed accordingly a twofold fraud was made mapifest : — 1st, the fraud upon the creditors, wherein both the plaintiff and the defendants participated; 2ndly, the misrepresentation put forth by the defendants to the plaintiff prior to his execution of the release. The question to be decided consequently was whether, on the above facts and pleadings, the plaintiff could successfully insist on the fraud practised towards him by the defendants, or whether his connection with the original fraud upon the creditors, whence it sprung and with which it was connected, did not effectually preclude him from so doing. This latter view of the question was taken by the majority of the Court. "The whole consideration for his (plaintiff's) release," observed Coleridge, J., " is the fraudulent preference promised to himself, and the withhold- ing any such preference from other creditors : he (the plaintiff) cannot allege the former as a fraud on himself to vitiate the release, for he is particeps fravdis ; and the CONTRACTS GENERALLY. 289 Ifitter is so entirely mixed up with it, deriving all its mate- riality from it, that the same disability seems to me to exist as to it." The decision of the Court of Error in Fisher v. Bridges (u), is important with reference to the subject above adverted to. There, to a declaration in covenant for the payment of a certain sum of money, the defendant pleaded that, before the making of the deed declared upon, it was unlawfully agreed between the plaintiff and defendant that the former should sell and the latter purchase of him a conveyance of land for a term of years, in consideration of a sum of money to be paid by the defendant to the plaintiff, " to the intent and in order and for the purpose, as the plaintiff at the time of the making the said agreement well knew," that the land should be sold by lottery, contrary to the form of the statutes in such case made and provided; that afterwards, " in pursuance of the said illegal agreement," the land was assigned for the term, and, a part of the purchase-money remaining unpaid, the defendant, to secure the payment thereof, made the deed and covenant in the declaration mentioned. Upon these pleadings the Court of Queen's Bench held, that the contract in question appeared to have been made after the illegal transaction between the plaintiff and defendant had terminated; that it formed no part of such transaction, and was consequently unaffected by it. The judgment thus given was, however, reversed in error upon reasoning of the following kind, which seems con- clusive; — the original agreement was clearly tainted with illegality, inasmuch as all lotteries are prohibited by the Stat. 10 & 11 Will. 3, c. 17, s. 1 ; and by the 12 Geo. 2, c. 28, s. 4, all sales of houses, lands, &c., by lottery are declared to be void to all intents and purposes. The agreement being (u) 3 E, &B. 642 (reversing judg- 359. See A.-G. v. MoUingworth, 2 ment in S. C, 2 E. & B. 118), with H. & N. 416 ; O'Connor t. BradshMW,, whici compare HiU v. Fox, 4 H. & N, 5 Exch. 882. 290 CONTRACTS GENERALLY. illegal, then, no action could have been brought to recover the purchase-money of the land which was the subject- matter thereof; and the covenant accordingly, being con- nected with an illegal agreement, could not be enforced {z). And, further, even if the plea above abstracted were not to be understood as alleging that the covenant declared upon was given in pursuance of an illegal agreement, it would, remarked the Court of Exchequer Chamber, still show a good defence to the action, for " the covenant was given for the payment of the purchase-money. It springs from and is the creature of that illegal agreement; and if the law would not enforce the illegal contract, so neither will it allow parties to enforce a security for purchase-money, which, by the original bargain, was tainted with illegality." Since the case of Collins v. Blantern it has been held as settled law, that a deed is impeachable on the ground of illegality or of fraud, which, as akeady stated (a), " vitiates everything," and to which the reasoning of Lord Chief Justice Wilmiot, already cited, applies quite as forcibly as to ille- gality ; either of these defences being properly raised by a special plea, as, indeed, is now expressly required by the Pleading Eules, Hil. T. 1853 (reg. 8). But although the general rule is free from doubt, that fraud or illegality may, if aptly pleaded, afford a good defence to an action upon a contract under seal, it would be erroneous to affirm that a deed tainted with illegality or fraud in its inception is necessarily void, and without " any legal entity " (b), as between all parties and for all purposes. It could not, indeed, be contended after perusing the cases below cited (c), that a party to a contract under seal is in (z) Pctxton T. Pophom, 9 East, 408 ; (J) Ante, p. 286. Oas Light Co. v. Turner, 6 Bing. N. (c) Collins v. Blantern, ante, p. C. 324 ; S. 0., 5 Id. 666. 283 ; Higgins \. Pitt, ante, p. 287 ; (a) Ante, p. 267. (with which, however, compare Mai- CONTRACTS GENERALLY. 291 general estopped from alleging his own fraud, or his own participation in an illegal transaction by way of answer to an action upon the deed. But nevertheless a conveyance made in contravention of some particular statute may be invali- dated thereby quoad the object contemplated by the parties, and yet may remain good and effectual as against the grantor. Thus a conveyance made for the mere purpose of conferring a vote has been held void only to the extent of preventing the right of voting from being acquired, but valid between the parties to pass an interest in the land (d). And an assignment of goods in fraud of creditors may be binding and unimpeachable as between the assignor and assignee (e). In these and other cases of a like kind, the legal maxim would seem forcibly to apply, — Quod fieri non debet factum valet. Every transaction is, moreover, according to an universal rule, presumed to be valid ; so that the proof of fraud lies upon the party by whom it is impugned (/). The mode of raising the defence of estoppel by deed is by pleading it if there he an opportunity (g) ; by demurrer, where the estoppel appears on the face of the record (h) : or, by evidence, in other cases, — as where the proceedings take place in a County Court (i). " The doctrine of estoppel," says Lord Denman, 0. J., (/<;), "has been guarded with great strictness; not because the lalieu, T. Hodgson, ante, p. 287, and (e) Bessey v. Windham, 6 Q. B. the remarks per Our. in Doe d. Boberts 166, recognising Boe d. jRobeHs t. V. Roberts, 2 B. & Aid. 369, 370) ; Solents, 2 B. & Aid. 367. Bowes v. Fisher v. Bnclges, 3 E. & B. 642 ; Foster, 2 H. & N. 779, is clearly dis- Oeere v. Mwre, 2 H. & C. 339, 345, tinguishable from the cases cited supra. 346; EvoMS v. Edmonds, 13 C. B. (/) Per P(wfe, B., 8 Exch. 400. 777 ; WonPner v. Shai/rp, 4 C. B. 404 ; (g) 2 Smith L. C, 6th ed., 710 ; Watscm, r. Ecurl of Oka/rlemont, 12 Q. per Lord Owm/pbell, C. J., Iteg. v. B. 856, 864. Inhahs. of Homghton, 1 E. & B. 512. (d) Phillpotts V. PhiWpotts, 10 C.B. (A) 1 Smith L. C, 6th ed., 710. 85, and cases cited per ifawJe, J., Id. (i) Shorn v. BecTc, 8 Exch. 392; 95. See MarshaM v. Bovm, 7 M. & Sa/rgent r. Wedlake, 11 0. B. 732. Gr. 188 ; OaUaghan v. OaOaghan, 8 (Jc) 2 Ad. & B. 289. C. & F. 374. V 2 292 CONTBACTS GENERALLY. party enforcing it necessarily wishes to exclude tte truth, for it is rather to be supposed that that is true which the oppo- site party has already recited under his hand and seal, but because the estoppel may exclude the truth." It is, there- fore, a recognised rule that estoppels must be certain (I), and that a plea by way of estoppel must be certain to every intent, — which seems to amount to this, — ^that it must meet and remove by anticipation every possible answer of the adversary (m). It may be well to add, that, where the matter relied upon as an estoppel occurs in the recital of a deed, the Court will look narrowly at the words used ; for, although when a recital is intended to be a statement which all the parties to the deed have mutually agreed to admit as true, it is an estoppel upon all ; yet when it is intended to be the state- ment of one party only, the estoppel is confined to that party ; the intention being ascertained from construing the instrument {n). EeUef in Although, as shown in the preceding pages, fraud may be equity j. o a. o against get up as a good defence at law to an action, even upon so deed. solemnly authenticated an instrument as a deed, and although the stat. 13 Eliz. c. 5 has rendered utterly void as against creditors fraudulent bonds, grants, or conveyances, &c., it is nevertheless to Courts of equity that recourse is usually had where the execution of a deed has been obtained by coUusion or through misrepresentation or fraud. Courts of equity, indeed, are much better able to deal with such cases than Courts of law, because their decrees can so be moulded as to do complete justice between litigating parties ; whereas the {I) Kepp V. Wiggat, 10 C. B. 35. R. O. ». Warton, 6 H. & N. 527 ; {m) Steph. PI., 6th ed., 390. Foster t. Mentor Ass. Co., 3 E. & B. («) Judgm., StroTighill v. £iKJe, 14 48. An estoppel by deed, in like man- Q. B. 787 ; Toung y. Baincock, 7 C. ner as an estoppel by record, extends B. 310 ; WUes v. Woodward, 5 Exoh. to persons claiming under the party 657 ; Carpenter v. Suller, 8 M. & W. who is estopped ; 2 Smith L. C, 6th 212; per Martin, B., South Eastern ed., 706. CONTRACTS GENERALLY. 293 verdict of a jury (which, however, is often made ancillary to the settlement of a case in equity), must be confined to saying yea or nay with regard to each particular issue sub- mitted to their decision. Courts of equity, moreover, as remarked by Dr. Story (o), " do not restrict themselves by the same rigid rules as Courts of law do in the investigation of fraud, and in the evidence and proofs required to establish it." In practice, therefore, where execution of a deed, ex. gr., a bond, has been obtained by a party under circumstances savouring of fraud, it may often be advisable to file a bill in equity with a view to having the deed declared void, and for its delivery up and cancellation, rather than to await pro- ceedings upon it in a Court of law. Where, moreover, pro- ceedings have been there actually commenced iipon a deed obtained by fraud, it will very possibly be deemed expedient to apply to equity for an injunction to restrain the action rather than to go to trial before a jury upon an issue as to fraud. Closely related to the doctrine of estoppel in this propo- ^"^^"^f^ sition — ^that ' a deed requires no consideration to support it.' "0° su^St Where a contract has been duly executed by sealing and ^^^ dehvery — not being a deed of feoffment, nor operating by the Statute of Uses — ^the solemnity of the instrument dis- penses, as between the parties to it (if it be a deed inter partes), or, as between the obligor and obligee (if it be a bond), with the necessity of a consideration. " A man may, therefore," as once observed by Lord Mansfield (p), "without consideration, enter into an express covenant under hand and seal ; " and as Blackstone (q), tells us, if a man enters into a voluntary bond, " he shall not be allowed to aver the want of a consideration, in order to evade the payment ; for every bond, from the solemnity of the instrument, carries (0) Ec[. Jurisp., 9th ed., s. 190. C. J., Fallowes v. Taylor, 7 T. R. 475, [p) ShubricTc v. Salmond, 3 Burr. 477; jier Ahiott, G. J . , Ii-ons y. SmuU- 1639 ; Judgm., Morley v. Bootliby, 3 piece, 2 B. &AId. 551, 554; Smith, y. Bing. Ill, 112. Scott, 6 C. B., N. S., 771. (2) 2 Com. 446 ; per Lord Kenyan, 294 CONTEACTS GENERALLY. with it an internal evidence of a good consideration ; " so that Courts of justice will support it, in the absence of fraud as against the obligor himself, though not, in general, " to the prejudice of creditors or strangers to the contract " (r). A deed, however, as we have already seen (s), is impeach- able for fraud ; and one main ingredient in fraud, or in the proof of it, is not unfrequently a want of consideration (f). When, moreover, the inquiry is respecting the operation of a deed with reference to the rights of third parties, proof of the absence of consideration Tnay be almost conclusive evidence of collusive dealing and of an intention to defraud ; and this remark will apply, whether the transaction in question be considered according to the principles of our common law, or with reference to the specific provisions of the statutes 13 Eliz. c. 5 (u), (upon which Twyne's case (x) was decided), and 27 Eliz. c. 4. Assuming, however, that there is consideration for a deed, that consideration may be of one or other of two kinds — ^it may be a good or it may be a valuable consideration. The distinction here presenting itself is clearly explained by Blackstone (y), who says, that " a good consideration is such as that of blood, or of natural love and affection," and "is founded on motives of generosity, prudence, and natural duty;" whereas, a " valuable consideration is such as money, marriage, or the like, which the law e.steems an equivalent given for the grant." Now, the above distinction is in very many cases extremely (r) 2 Bla. Com. 446. 199. (s) Ante, p. 283. (u) Made perpetual by the stat. 29 (t) Eqtiity, however, will not relieve EHz. c. 5. against a voluntary gift, if there were (») 3 Rep. 80, and 1 Smith L. C, no undue influence : Judgm. , Bugmnin 6th ed., 1; to which case, with the V. Baseley, 14 Yes. 290. The cases in Note appended thereto in Mr. Smith's which equity interposes or refuses its collection, the reader is referred. ?,id in favour of volunteers, ai-e collected (y) 2 Com. p. 297. See also Shepp. in the Note to Ellison v. Ellison, 1 Touch, p. 64. White & Tud. Eq. L. C, 2nd ed., CONTEACTS GENERALLY. 2&5 material, inasmuch as a voluntary deed, i. e., a deed made without any consideration, at all, or even for a good, though not for a valuable consideration is void as against subsequent bond fide purchasers for value, and even with notice, by the statute 27 Eliz. c. 4, above mentioned, and also (when exe- cuted by an insolvent party), as against creditors, by virtue of the 13 Eliz. c. 5 (z). But, besides cases of the above class, there are others, con- nected, with the transfer of realty, in which the question as to the existence of a consideration for a deed, or even as to the nature of such consideration, may have an important bearing on the rights and liabilities of parties. In equity, for instance, a feoffment to a stranger without consideration or declaration of a trust, is (irrespectively of statute law) re- garded as made for the use of the feoffor, although in this case the legal estate would, prior to the Statute of Uses, have become transferred to and vested in the feoffee. From the absence of consideration for the grant and of any indication of a contrary intention, equity presumed that the feoffment was intended to be for the use of the feoffor, though such {z) In Gale t. Williamson, 8 M. & question in each case is, whether the W. 405, Solfe, B., speaMng of the stat. deed is fraudulent or not ; and to rebut 13 Eliz. u. 5, observes, " It is a mistake the presumption of fraud, the party is to suppose that the statute makes void, surely at liberty to give in evidence all as against creditors, all voluntary deeds. the circumstances of the transaction. All that it says is, that a practice of not to contradict the consideration making covinous and fraudulent deeds stated in the deed, but to take it out of had prevailed, and therefore, that all the operation of the statute." "[The feoffments, gifts, &c., of any lands or rule of lav?,'' Ba,YS Alderson, B., in the goods and chattels, as against the per- above case, "is, that a deed made sons whose actions, debts, &c. , by such merely in consideration of natural love covinous and fraudulent devices and and affection prim^ facie imports fraud ; practices, shall be disturbed, hindered, that alone shows that it is not con- delayed, or defrauded, shall be void. clusivel/y, but only preswmptivdy The Courts, in construing the statute, fraudulent. It follows, therefore, have held it to include deeds made that evidence may be adduced to show without consideration, as being prim^ that no fraud was, in fact, in- facie fraudulent, because necessarily tended." tending to delay creditors. But the 296 CONTRACTS GENERALLY. presumption might be rebutted by showing that any the smallest consideration had passed from the feoffee. The effect of the Statute of Uses being to transfer the use into possession, its operation in the case supposed, that, namely, of a feoffment without consideration, would be to give to the feoffor the seisin and possession of the land, not- withstanding livery of seisin had been duly made to the feoffee, the use (according to the technical phrase), under the circumstances supposed, resulting to the feoffor. If, however, the feoffment be made " to the use " of the feoffee, the case is different, inasmuch as those words would, before the sta- tute, have raised a trust for the benefit of the feoffee, and now, by its operation, vest in him the seisin and possession of the land. This subject will be found clearly and concisely explained in the treatise below cited (a), where the result is shortly stated to be, that, since the Statute of Uses, it has become requisite to a feoffment, either that there should be a consideration for the gift, or that it should be expressed to be made not simply " unto," but " unto and to the use of" the feoffee. An inspection of any ordinary conveyance will show, that the receipt of the nominal consideration expressed therein is acknowledged by the grantor, who would conse- quently thus be estopped at law, in the absence of fraud, from calling in question, at any future time, the fact of a consideration having passed (&). Passing on to a notice of deeds other than conveyances, and assuming that there is neither fraud nor illegahty in the transaction out of which the particular instrument originates, nor anything appearing in contravention of any statute, the mere absence or failure of consideration for a bond or cove- nant will, in a Court of law, be wholly immaterial (c). Hence arises a noticeable distinction between the case of a deed (a) ■Williams' Real Prop., 7tli ed., B. & Ad. 833, 838. Pt. I., Chap. 8. (c) Per Parlce, B., WaUis t. Say, (6) See R. t. InhaU. of Oheadle, 3 2 M. & W. 277. CONTEACTS GENEEALLY. 297 founded on a past and insufficient consideration, and a deed executed with a view to carrying out an illegal purpose ; the former, inasmuch as no consideration at all is required to support the contract, being good {d), whilst the latter will be wholly void (e). With respect to contracts under seal, founded upon illegal considerations, I need here say nothing further, inasmuch as I shall presently have to inquire generally, and at some length, into the nature of the consideration for a promise and of the subject-matter of an agreement. Another peculiar characteristic of a contract under seal is specialty ^ _ binds the this, that, in certain cases, it will bind the heir and sometimes ^^'^• even the devisee of the contracting party. Where, for in- stance, a person by bond, covenant, or other specialty, binds himself and his heirs, the heir and devisee are each liable and must be jointly sued for the default of the ancestor or testator, to the extent of assets freehold and copyhold which they have taken by descent or devise (/). In order, however, to render the heir liable on the ances- tor's specialty, it is necessary, 1st, that he be expressly named in the bond or covenant (g) ; and 2ndly, that he have assets by descent from the covenantor; for though the covenant descends to the heir, whether he inherits any estate or not, it cannot be effectually put in suit until he has assets by descent (A). This liability of the heir existed at common law, though the devisee was first rendered liable in an action of debt by {d) Arg., Beaumont V. Reeve, 8 Q. B. Burr. 1568 ; Fishetr v. Bridges, supra. 485, and cases there cited ; Nye v. (/) 11 Geo. 4 & 1 Will. 4, u. 47, s. 6 B. & C. 133 ; Friend v. 3. If there be no heir, the de-risee Sa/rrison, 2 C. & P. 584 ; FaUowes v. may be sued alone : Id. s. 4. As to Taylor, 7 T. R. 475, 477. See Fisher the operation of the above statute, see V. Bridges, 2 E. & B. 118, 126, 127 ; Re Taylor's Estate, 8 Exch. 384. S. 0. (in error), 3 Id. 642, cited ante, (g) Piatt, on Cov. 449 ; Bac. Abr. p. 289. "Heir" (D.) and (I.); Derisly v. (e) Bimnington v. WaMs, 4 B. & Custance, i T. R. 75. Aid. 650, 652 ; Walker v. PerUns, 3 (k) 2 Bla. Com. 244. 298 CONTRACTS GENERALLY. the Stat. 3 & 4 "W. & M. c. 14 (i), and now in an action of debt or covenant by stat. 11 Geo. 4 & 1 Will. 4, c. 47, wbich repeals the former enactment. The heir of an obligor will clearly not be liable unless named in the ancestor's bond (k), though the personal repre- sentatives of one who contracts by specialty are, although not named, liable to the extent of assets, except on a covenant which, from its nature, must be performed by the covenantor and determines by his death (l). A very remarkable distinction thus presents itself between a specialty and a simple contract, for liability in respect of the latter must be enforced, if at all, against the personal representatives of the contractor. It will, of course, be re- membered that I have been here speaking of the rights and liabilities of parties at common law; for the freehold and copyhold estates of a deceased debtor have, by recent statutes, been declared assets in equity for the payment of his debts, as well by simple contract as by specialty ; nevertheless, it is enacted (m), that in the administration of such assets, " all creditors by specialty, in which the heirs are bound, shall be paid the full amount of the debts due to them before any of the creditors by simple contract or by specialty, in which the heirs are not bound, shall be paid any part of their demands." Specialty The last characteristic of a specialty which here requires charged. notice is, that it can only be discharged by an instrument under seal, or by the judgment of a Court of competent authority or by statute. The proposition holds true at {{) See Farley v. Briant, 3 Ad. & E. J., Penfold v. AUott, 32 L. J., Q. B., 847, 850, 859; per Grose, J., WUson 67, 68 ; Judgm., Taylor T. Caldwell, 7 East, 135 ; Dylce v. 3 B. & S. 835 ; Wills t. Murray, i Sweeting, Willes, 585, 587 ; Hunting Exch. 843 ; per Parhe, B., Siboni v. T. ShMrake, 9 M. & W. 256. Kirlcman, 1 M. & W. 423 ; Wemtvxyrilh {h) See Barler v. Fox, 2 Wms. v. Coclc, 10 Ad. & E. 42. Saimd. 136, 137 t ; Co. Litt. 209 a. (m) WUliams' Real Prop., 7th ed., (l) Hyde v. Dean of Windsor, Cro. pp. 74-83. Eliz. 552, 553 ; cited per Wightman, CONTRA.CTS GENERALLY. 299 law (n), that a contract thus solemnly authenticated can only be dissolved, released, or discharged by matter of as high a nature as itself. It is obvious, that, where matter of discharge by parol from a liability under seal exists at all, it must have arisen either before or after a breach of the special contract. According to our common law, if it has arisen before breach, the rule just stated strictly holds ; if after breach, the matter of discharge may sometimes afford ground of defence to an action for damages. Of the former of these two propositions. The Mayor, &c., of Berwick v. Oswald (p) illustrates the truth. There the defendant was sued in covenant upon a bond which he had entered into as surety for the due performance of his duty by one M., who had been elected to fill the office of treasurer of the town of Berwick. The breaches assigned were, that the said M. had not paid over, nor truly accounted for, certain monies to the plaintiffs. In answer to this declaration the defendant pleaded, inter alia, that, after the making of the bond in question, and before any of the breaches of covenant alleged, the said M., and others as his sureties, executed and delivered to the plaintiffs, and the plaintiffs accepted and received from them, another bond " in full satisfaction and discharge of " that declared upon, and of all covenants, &c., contained therein. The bond thus alleged to have been given in lieu of that declared upon was similar to it, save that the defendant was not named therein as a surety. The Court held that the plea thus put on the record was clearly bad, because an accord and satisfaction cannot be pleaded to an action upon a deed before breach, and there was nothing in («) See per i'oZZoci, C.B., IH. &W. Dennis, E. B. & E. 660, and cases 458. there cited ; Blake's case, 6 Eep. 44 ; (o) 1 E. & B. 295 ; 8. C, Z Id. Snow y. FranMin, 1 Lutw. 358; Kaye 653, 5 H. L. Ca. 856, with which v. WagTiorn, 1 Taunt. 428. coTD^axe Mayor, i&c., of Cambridge v. 300 CONTEACTS GENERALLY. the second deed which could operate as a release of that previously executed {p). In conformity with the decision of the Court of Queen's Bench above-mentioned is that of the Court of Exchequer in Spence v. Healey (q), where it was held, that a covenant to pay a sum certain, after notice given, could not, before breach, be discharged by matter in pais, such as the delivery to the covenantee of goods and chattels to the covenantor. But although it is true, that if an action be brought on a specialty, the defendant cannot allege by way of legal dis- charge a parol agreement made before breach, that the covenant or obligation shall not be performed ; yet, after breach, a parol agreement may, where the damages sought to be recovered are unliquidated, operate by way of accord and satisfaction (r), and matter in pais, as payment, may so be pleaded. " Nothing, however," says Parke, B. (s), " can discharge a covenant to pay on a certain day but actual payment or tender on that day." Blake's case (t) may be regarded as the leading authority in sxipport of the qualifi- cation of the general rule just specified. That was an action for breach of a covenant to repair, brought against the assignee of the lease, to which the defendant pleaded an (p) Accord and satisfaction may how- been completely performed, and so there ever be pleaded in discharge of the has been a total extinguishment of the condition of a bond, for " though the original cause of action : " per Maule, bond is under seal, the condition is of a J., Gabriel v. Dresser, 15 C. B. 628. thing resting on evidence only. It may (s) Poole v. Tumhridge, 2 M. & W. be compared to matter in pais :" 1 Selw. 223, 226 (cited Judgm., Saldane y. N. P., 12th ed., 581, citing per Tindal, Johnson, 8 Exoh. 695), where it is ob- C. J., West V. Blahevjay, 2 M. & Gfr. servable that the learned judge is repre- 751 ; PiniieVs case, 5 Rep. 117 a. sented to have added the following \c[) 8 Exch. 668, and cases cited Id. words, which, however, do not appear in 669 n. (6). See also Smith v. Trows- the S. 0. as reported 6 L. J., N. g., dale, cited post, p. 302; West v. Exch. 74: — " Although if the party Blakemay, 2 M. &Grr. 729 ; Harris v. afterwards chooses to receive the money Ooodwyn, Id. 406. that may be pleaded by way of accord (r) "The meaning of an accord and and satisfaction." satisfaction is, that there has been an (*) 6 Rep. 43 b. agreement, and that that agreement has CONTRACTS GENERALLY. 301 accord between himself and the plaintiff, and execution thereof, in satisfaction and discharge of his default in not repairing. Upon demurrer to this plea it was objected, that the " action of covenant was founded on the deed, which could not be discharged but by matter of as high a nature, and not by any accord or matter in pais, for nihil tarn con- veniens est naturali cequitati ut unumquodque dissolvi eo ligamine quo ligatwm, est; and it appears by all our books, that neither arbitrament nor accord with satisfaction is a plea when the action is grounded on a deed." But in answer to this objection, it was resolved by the whole Court, that " the defendant's plea was good in the case at bar, for there is a difference when a duty accrues by the deed in certainty, tempore confectionis scripti, as by covenant, bill, or bond, to pay a sum of money, there this certain duty takes its essence and operation originally and solely by the writing, and, therefore, it ought to be avoided by a matter of as high a nature "...." but when no certain duty accrues by the deed, but a wrong or default subsequent, together with the deed, gives an action to recover damages," . . . . " for such wrong or default accord with satisfaction is a good plea." Applying the rules thus stated to the facts before them, the Court further observed, in Blalce's case, that the covenant to repair did not, at the time of making it, give the plaintiff any cause of action ; but the wrong or default after in not repairing, together with the deed, gave a right to recover damages {u) : and then laid down generally, that, in all (») "The distinotion appears to be and acceptance in satisfaction is, — not this: there can be no dispensation with the covenant, which remains entire, — a, contract under seal except by a re- but the damages sustained by the par- lease under seal. Accord and satisfac- ticular breach of it, for which the action tion before breach is therefore a bad is brought : " 6 M. & Gr. 262 (a). See plea in covenant, because it amounts to also Doe d. Muston v. Gladwin, 6 Q. a dispensation. But accord and satis- B. 953 ; Rawlimon v. Cla/rhe, 11 M. faction after breach is a good plea, be- & W. 187. cause the subject-matter of the j)ayment 302 CONTRACTS GENERALLY. actions, where damages only (x) axe to be recovered, accord with satisfaction may be pleaded (y) ; though (as we else- where read) "where the covenant is for the payment of a sum certain, the covenantee has a right to object that the discharge is not by deed " (z). Smith V. Trowsdale (a) merits consideration in connection with the subject just adverted to ; there the declaration, after stating that a submission to arbitration under seal had been entered into between the plaintiff and the defendants, and that an award had been made thereupon, set forth as the gist of the action the non-payment of money due under the award. The plea to this declaration set up a new agree- ment, after the breach of duty arising out of the award, whereby, in consideration of the defendants paying a smaller sum at an earlier time, the parties mutually stipulated that this new agreement and the performance of it by the de- fendants should be accepted by the plaintiff in satisfaction of all that was to be done under the award and of all damages sustained by reason of the breach of it. The Court were of opinion that this plea was substantially a plea of accord and satisfaction, and that there was no necessity for showing that the agreement which it set up was under seal, the action not being brought directly on the deed of submission, but for the breach of duty in not performing the award. " The deed," remarked Wightm,an, J., " is only stated by way of induce- ment, to show that the arbitrator had authority to bind the parties. The declaration need not have alleged that the submission was by deed." The result of what has been above stated seems to be, that "accord and satisfaction" before breach cannot be pleaded in answer to an action of covenant ; but that " accord and satis- {x) By which expression, apparently, (2) Spenee y. BeaXey, 8 Exch. 670. must be Imderstood unliquidated da- (a) 3 E, & B. 83, with which com- mages. pare Braddich v. Thonvpson, 8 East, {y) 6 Eep. 41 b ; Peytoe's case, 9 344. Bep. 77. CONTRACTS GENERALLY. 303 faction " after breach will, in this action, be a good plea where "no certain duty accrues by the deed," using that phrase in the sense assigned to it in Blake's case (6). In the particular case of a covenant or bond to pay a sum of money on a day named, payment ad diem would in effect be a plea of performance, — in the one case of the covenant — in the other of the condition of the bond, and, therefore, might, at common law, be pleaded by way of defence in an action upon the specialty. And it must be remarked, that, by statute 4 Ann. c. 16, s. 12, where debt is brought upon any hond, with a condition or defeasance to make void the same upon payment of a lesser sum at a day or place certain, if the obligor, his heirs, executors, or administrators have hefore the action brought paid to the obligee, his executors or administrators, the principal and interest due by the condition or defeasance, though such payment was not made strictly according to the condition or defeasance, yet it may be pleaded in bar of such action (c). A simple contract, is a contract either in writinq not simple ■^ _ ^ ^ contract under seal or verbal or implied from the acts and conduct —^^*- of the parties (d). It may be either executory or eax- cuted (e). An executory simple contract, is an agreement, — either in writing not under seal or verbal or implied, — of two or more persons on sufficient consideration, to do or not to do a parti- cular thing (/). A simple contract may be either wholly executed, *. e., each party to it may have performed that which he originally undertook to do, or it may be executed as regards one of the contracting parties, and executory as regards the other (g). (h) Ante, p. 300. part by words or conduct. (c) See the Form of a Plea of Pay- (e) Ante, p. 253. ment. Bull & L. Prec. PI. &d ed., p. (/) See 2 Bla. Com., p. U2. 514. {g) Ante, p. 253. The following {d) A simple contract is sometimes cases may serve to illustrate the dis- in paii: evidenced by writing, and in tinction between contracts, executory 304 CONTEACTS GENEEALLY. The distinctions here adverted to as existing amongst simple contracts, as well as the nature of an implied contract, will become apparent, not merely from a perusal of the pages immediately following, but from many portions of this Book, — especially those which treat of the operation of the Statute of Frauds, and of contracts mercantile or between particular persons. For the present, I purpose to restrict myself to such remarks in regard to simple contracts generally as may Jay the foundation for more minute knowledge upon this subject, directing attention from time to time to a few selected cases in illustration of what is said. Terms of Bj' the term " contract " used in the preceding paragraphs, must be must be understood an agreement or convention between definitively " settled. parties, the terms of which have been definitively arranged and settled; for, upon an agreement inchoate merely, and incomplete, no legal remedy can be enforced. Efficacy being imparted to a contract by the mutual consent of the con- tractor and contractee, no such force attaches to it so long as the negotiation is still pending and open, for " till both parties are agreed either has a right to be off " (h). Cope V. Albinson (i) will illustrate the above remark. There the defendan,t through his agent made an offer to the plaintiffs in these words, viz., " to pay a composition of seven shillings in the pound on your (the plaintiffs') account against his (the defendant's) nephew, J. A., the younger, and on your giving proper indemnification to both. In the event of your accepting the offer I will thank you to forward me full particulars of your account, in order that the same may be properly examined." This offer was accepted by the plain- and executed; Graham v. Gibson, i veriwr, Ac, of the Poor of Kingston- Bxch. 768 ; Tanner t. Mom-e, 9 Q. B. upon-Hull v. Petch, 10 Exch. 610 1 ; Hochster t. De la Tour, 2 E, & B. Dvmlop v. Higgins, 1 H. L. Ca. 381 678. Bayley v. Fitzmawrice, 6 E. & B. 868 (A) Per £est, C. J., Routledge v. S. C, 8 Id. 664; 9 H. L. Ca. 78 Grant, 4 Bing. 661; Felthouse v. Cheveley \. Fuller, IS C. B. 122. Bindley, 11 G. B., N. S., 869 ; Go- (i) 8 Exch. 185. CONTRACTS GENERALLY. 305 tiffs, and the particulars of their account forwarded accord- ingly ; and a reasonable time, as was alleged, having elapsed for the payment of the composition by the defendant, they brought their action against him to compel payment of the same. The Court held the action not maintainable, the agreement not haidng been completed between the parties. " This," observed Parke, B., "is an agreement for a com- position upon terms thereafter to be settled, and is like a contract for the purchase of an estate for such a sum as the parties may think fair." Again, if application for an absolute and unqualified allot- ment of shares in a projected company be made, and the letter of allotment contain the qualification that the shares are not transferable, the proposal and acceptance, not being ad idem, will together fail to evidence a binding contract between the applicant for shares and the company (I). The subject before us will be further illustrated by refer- ence to the contract of sale in our ensuing Chapter ; but, as regards mercantile contracts in general, which are frequently concluded by written correspondence between parties, we may add that, where A. makes an offer by letter to B., and B. accepts that offer unconditionally, the contract will be complete when B.'s letter is posted, although it may chance not to reach its destination (tyi). Again, there must be reciprocity of assent between the Mutuauty — what. parties to a contract in order that it may be complete and binding (n) ; and if the term mutuality be used as synony- mous with " reciprocity of assent" it will be true to say, that there m^ust be mutuality in a contract (o). The tenu in (I) Duke V. Andrews, 2 Exch. 290, (m) Duncan v. Topham, 8 C. B. cited per Alderaon, B., Willey 7. Pwr- 225 ; Dunlop v. Higgins, 1 H. L. Ca. ratt, 3 Exch. 213 ; Chaplmr. Ola/rke, 381; Per WUde, 0. J., Ewrvey v. 4 Exch. 403 ; Vollans v. Fletcher, 1 Johnston, 6 C. B. 304 ; Adams t. Exci. 20 ; Moo^-e v. Garwood, Id. Lmdsell, 1 B. & AM. 681. Post, 686 ; Wontner v. Shairp, 4 C. B. 404 ; Chap. 2. Hamilton v. Terry, 11 C. B. 954 ; (») See cases cited infra. Hudspeth v. Ya/rnold, 9 C. B. 625. (0) A simple instance, showing what X 306 CONTRACTS GENERALLY. question is, however, often employed to signify " reciprocity of obligation," and in this sense the rule which has been just stated does not invariably hold true. Important classes of contracts might indeed be specified, in which, on their incep- tion, legal liability attaches and can be enforced as against one only of the contracting parties {f). For instance, an agreement within the 4th section of the Statute of Frauds will bind the party who has signed it, although there may be no legal remedy at his suit against the other by reason of this latter party having omitted to sign it {q). The con- tract of an infant is in most cases voidable at his election, though quoad an adult contracting with him it absolutely binds (r). The individual who executes a guarantee assumes liability, without having any power to compel the party to whom such security is given to supply the goods, or to extend the credit in pursuance of the terms of the guaran- tee (s). This is clearly explained in the case infra it), by ParJce, B., who remarks that where one person says to another " in case you choose to employ this man as your agent for a week, I will be responsible for all such sums as is meant by " mutuality," presents ton, 13 C. B. 495; S. C, 4 H. L. Ca. itself in the ordinary contract of sale. 624 ; Su$t v. Nottidge, 1 B. & B. 99 ; "There must," says WUde, C. J., in Bealen t. Stuart, 7 H. & N. 763; Wood v. Copper Miners' Co., 7 C. B. Syies r. Dixon, 9 A. & E. 693. 936, "he two parties to a transaction (p) See Harvey v. Johnston, 6 C. to make it enure as a purchase. When B. 295 ; MiUs v. BlackaU, 11 Q. B. two persons mutually agree that one of 358, 866 ; Gibson v. Carruthers, 8 M. them shall purchase goods of the other, & W. 321 ; Marsh v. Wood, 9 B. & C. that amounts to a contract that the one 659 ; Kearsey r. Carstairs, 2 B. &Ad. shall sell and that the other shall buy. " 716; Fairburnv. Eastwood, 6 M. & The above proposition is, however, con- W. 679. trorerted by Martin, B., Bealey v. (}) Laythoarp v. Bryant, 2 Bing. Stuart, 7 H. & N. 757. N. C. 735 ; post, Chap. 2. As to mutuality in contracts of hiring («•) Holt v. Ward, 2 Stra. 937 ; and service, see Eeg. v. Welch, 2 E. & post, Chap. 5, s. 2. B. 357; Hartley v. Cummings, 5 C. (s) Per Wightman, J., Mills v. B. 247 ; PUkington v. Scott, 15 M. & BlacJcall, 11 Q. B. 366. W. 657; Whittle, app., Frankland, {t) Kennaway v. Trdeavan, 5 M. & resp., 2 B. & S. 49 ; Emmens v. Elder- W. 501. CONTRACTS GENERALLY. 307 he shall receive during that time and neglect to pay over to you :" — the party indemnified is not therefore bound to employ the person designated by the guarantee ; but if he do employ him, then the guarantee attaches and becomes binding on the party who gave it {u). Burton v. The Great Northern B. C. (x) may be cited for the purpose of showing what is meant by " want of mutu- ality " in a contract. There the plaintiff, by a memorandum of agreement between himself and a railway company (the defendants), undertook to provide waggons, horses, &c., for the cartage of merchandise between H. and W., and to con- vey all such as might be presented to him for conveyance between those places. And he further undertook to perform all business entrusted to him, promptly and carefully, at a certain specified rate. And it was mutually agreed that the arrangement' aforesaid shoidd continue in force for the period of twelve months from the date thereof. The defendants having, before the expiration of that period, by written notice, terminated the agreement, the plaintiff sued them for breach of contract. But the Court of Exchequer, besides holding that the declaration, as framed upon the above agreement, was not supported by it, intimated a strong opinion that no action at all could, even, if an amendment were made in the declaration, be maintained upon the con- tract in question against the company, inasmuch as it contained no provision binding them to send goods to the plaintiff for conveyance, and was, in fact, unilateral merely, and without mutuality. If we attempt to analyse a simple contract, the terms of Analysis ^ */ ^ ' of a simple contract. («) See Westhead v. Sproson, 6 H. v. Browne, 12 C. B. 723 ; Morgan t. & N. 728. Pilce, U C. B. 473 ; Swatman v. (x) 9 Exch. 507. As to want of mu- Ambler, 8 Exch. 72 ; Pitman v. tuaKty — in contracts under seal, see Woodbury, 3 Exch. 4 ; Wheatley v. Aspdin T. Austin, 5 Q. B. 671 ; Dunn Boyd, 7 Exch. 20 ; How v. Greek, 3 T. Sayles, Id. 686 ; — in contracts under H. & C. 391 ; — in contracts with cor- seal, executed by one party only, see porations, post, Chap. 5, s. 1. British Empire Mutual Life Ass. Co. X 2 308 CONTRACTS GENERALLY. which have been definitively arranged between the parties to it (2/), or to trace the progressive steps in its creation, we shall find that there must have been a request to the con- tractee by the contractor — a consideration moving from the contractee to the contractor— a promise by the contractor to the contractee to do, or to refrain from doing, a particular thing. Of these three ingredients in a contract, viz., the request— the consideration — ^and the promise — I shall briefly treat in the order just indicated, although it will be desirable for the reader, before perusing that which imme- diately follows, to familiarise himself with the definition of a " consideration " given at p. 316. Request. 1. To Constitute a contract valid in law there must have been a request to the contractee by the contractor. This request, however, need not in all cases have been express ; it will very often be implied by law. Let us first take the case of an executory contract, as " in consideration that you will serve me a year — I will give you 10^." This is equivalent to saying, " in consideration that you, at my request, will serve me," &c. In this case, therefore, and in every case where the consideration of a promise is executory, there must have been a request, or something tantamount to it, on the part of the promisor (0). Where, however, the act relied upon as the consideration for a promise is wholly past and executed {a), it is obvious that such act may or may not have been done at the request of the promisor, ex. gr., it may have been a mere voluntary courtesy. The rule first to be noticed upon this subject ac- cordingly is, that " a bygone consideration, unless supported by a request, will not sustain a subsequent promise " (6). " If," says Mr. Chancellor Kent (c), " the consideration be (y) Ante, p. 304. v. Bai:er, Dyer, 272, and West v. West, (z) 1 Smith L. C, 6th ed., 142. 1 RoUe Abr. 11 ; King t. Sears, 2 Cr. (a) Post, pp. 325 et seq. M. & R. 48. (J) Per Tindal, C. J., Thm-nton y. (c) Comm., 10th ed., vol. 2, p. Jenyns, 1 M. & Gr. 188, citing Hunt 632. CONTRACTS GENERALLY. 309 wholly past and executed before the promise be made, it is not sufficient, unless the consideration arose at the instance or request of the party promising." Thus, if a man disburse money about the affairs of another ■without request, and then the latter promise that, in consideration of the former having laid out the money for him, he will pay him lOl., that is not a good consideration, being completely executed (d). Where, indeed, the act stated as the consideration for a promise cannot, from its nature, have been a gratuitous kind- ness, but necessarily imports a request, such request need neither be averred nor specifically proved, — as in the case of money lent ; for the mere statement ^that money was lent, implies that it was advanced at the request of the party to whom the loan was made (e). Again, where the party whom it is sought to charge upon a contract has derived benefit from that which is alleged to be the consideration for his promise, the acceptance and en- joyment of this benefit will, in legal contemplation, suffice to imply an antecedent request. If, for instance, a man buys goods for me without my knowledge or request, and after- wards I agree to receive the goods, my conduct, as showing a ratification of the contract, will dispense with the necessity of proving an express request (/), according to the maxim Omnis ratihabitio retrotrahitur et mandato priori csquipa- ratur (g). So, if A., unauthorised by me, makes a contract on my behalf with B., which I afterwards recognise and adopt, there is no difficulty in dealing with this contract as having been originally made by my authority. If B. entered into the contract on the understanding that he was dealing with (d) Judgm., 1 M. & Gfr. 188-9; wMci compare Brittain v. Lloyd, 14 Zampleigh t. Brathwait, Hob. 105, M. & W. 762, cited Zewis v. Campbell, explained judgm., Kermedy v. Brown, 8 C. B. 541, and post. 13 C. B., N. S., 740. (/) 1 Wms. Saund. 264 (1). (c) Victors T. Bavies, 12 M. & W. (g) Leg. Max., 4th ed., p. 833; 758, citing 1 M. & (Jr. 265, n. ; Fitzgerald y. Dressier, 7 G. K , TH . 8. , M'Qregm- v. Graves, 3 Exch. 34 ; with 374. 310 CONTRACTS GENERALLY. me, when I afterwards agree to admit that such was the case, B. is precisely in the condition in which he meant to be. If, on the other hand, B. did not believe A. to be acting for me, his condition is not altered by my adoption of the agency ; for he may sue A. as principal at his option, and has the same equities against me if I sue which he would have had against A. (h). The request to do the act which is to constitute the con- sideration for the subsequent promise may, as already ob- served (i), be express or implied, i.e., the request may be direct and explicit, or it may be indirect, to be collected from circumstances, and supplied by intendment of law. In support of these remarks a few illustrative observations may be needed. It is clear, then, that if one requests another to pay money for him to a stranger, there is to be implied in the absence of any express promise, an undertaking to repay it ; so that the amount, when paid, is a debt due to the party paying from him at whose request it is paid : and it is here wholly immaterial whether the money is paid in discharge of a debt due to the stranger, or as a loan or gift to him. The request to pay, and the payment according to it, create a legal lia- bility which attaches to the party making the request. But, further, whether the request be direct — as where the party is expressly desired by the defendant to pay ; or indirect — as where he is placed by him under a liability to pay, and does pay, is immaterial. If one ask another, instead of paying money for him, to lend him his acceptance for his accom- modation, and the acceptor is obliged to pay it, the amount is money paid for the borrower, although the borrower be no party to the bill, nor in any way liable to the person who (/i) Judgm., Bird t. Brown, 4 Exch. Isaacs, 12 C. B. 791 ; per Lord Wens- 798-9; cited per TTiHes, J., Bermclo leydale, Ridgway r. Wharton, 6 'R. li. V. HorsfaLl, i C. B., N. S., 454; Ca. 296-7 ; ^wcorea v. ilfarfo, 7 H. & Mitdieson v. Nkol, 1 Exch. 929 ; Peto N. 686. V. Reynolds, 9 Exch. 410; James v. {i) Ante, p. 308. CONTRACTS GENERALLY. 311 ultimately receives the amount. The boiTower, by re- questing the acceptor to assume that character, which ultimately obliges him to pay, impliedly requests him to pay, and is as much liable to repay as he would be on a direct request to pay money for him with a promise to repay it (k). The case last suggested illustrates the important proposi- tion, that where one party for and at the request of another enters into a legal liability to pay money, a request to pay the money is implied by law from the fact of entering into the engagement (I). If the debt or liability is incurred entirely for a principal, the surety having become liable for him at his request, and being obliged to pay, is held at law to pay on an implied request from the principal that he will do so (m). From the rule just laid down, which is applicable in its terms to the particular case of principal and surety, may readily be derived the doctrine of contribution amongst joint contractors. In a joint contract entered into for the benefit of all, each contractor takes upon himself a liability to pay the whole debt, and each, in effect, takes upon himself a liability for each to the extent of the amount of his share : each, therefore, may be considered as becoming liable for the share of each one of his co-contractors, at the request of such co-contractor, and on being obliged to pay such share, a request to pay it is implied as against the party who ought to have paid it, and who is relieved from pay- ing what, as between himself and the party who pays, {k) Judgm., Brittain t. Lloyd, 14 fendant at his request, or that he has M. & W. 773. been compelled to pay money for -which (i!) See Jcmes t. Orchwrd, 16 C. B. the defendant was liable to the person 614. receiving it, as in the case of a surety (m) Judgm., 2 E. & B. 296. "The paying the debt of his principal, and count for money paid proceeds on one similar cases :" Judgm., Sayles v. of two suppositions : either that the Blame, 14 Q. B. 205 ; Ma/rsack v. plaintiff has paid the money for the de- Webber, 6 H. & N. 1 . 312 CONTRACTS GENERALLY. he ought himself to have paid according to the original arrangement (n). The principle just stated applies where one of several joint contractors has, by legal process, been compelled to pay the joint debt, whether the action was brought against him alone, or whether, judgment having been obtained against all the parties jointly liable, execution was issued and satisfaction enforced against one only (o). But this right to contribution will be affected by any original arrangement or convention inter partes, inconsistent with the understanding that each is to pay his own share only. If by express arrangement, one of the joint contractors, though liable to the creditor, is not, as between himself, and his co-contractors to be liable to pay any portion of the debt, it is clear that no action to compel contribution could be maintained against him (p). So, where one surety enters into an engagement of surety- ship at the request of his co-surety, it has been held, that the co-surety, paying the whole debt, can maintain no action (g). In such cases, the rule applies — expressum, facit cessare taciturn — the request to pay, which, as above explained, the law ordinarily implies from one joint contractor to his co- contractor, can have no existence where there is an express contract inconsistent with it. Nor, to anticipate a little what I shall presently have to say, could there, under such circumstances, be implied a promise for repayment, because, " promises in law," as remarked by Buller, J. (r), " only exist where there is no express stipulation between the parties." Without attempting to pursue any further the inquiry as (n) Batard v. Hawes, 2 E. & B. C, 19 Id. 763. 287, 296. See Wallis v. Simiburne, {p) Twrner v. Dairies, 2 Esp. 478 ; 1 Exch. 203 ; Reynolds t. Wheeler, 10 Done t. WaUey, 2 ExcK 198. C. B., N. S., 561. iq) See Judgm., Batard t. Hawes, (o) Toussaint v. Martinnant, 2 T. 2 E. & B. 297. B. 100; Earl of Mountcashell r. Bar- (r) Toussaint v. Martinnant, 2 T. her, 14 C. B. 53. See Bemn v. K. 105 Driver v. Bmton, 17 Q. B. Whitinore, 15 0. B., N. S., 433 ; S. 989 CONTRA.CTS GENERALLY. 313 to tte rights of a surety against Hs principal or co-surety, or of one of several joint contractors who has been compelled to pay the joint debt against his co-contractors, we may conclude that, in every case in which there has been a pay- ment of money by a plaintiff to a third party at the request of the defendant, express or implied, on a promise express or impUed, to repay the amount, an action for " money paid by the plaintiff for the defendant at his request " (s) wiU lie (t) ; and, further, we may conclude, that a request to pay will be implied whenever the consideration consists in the plaintiff's having been compelled to do that to which the defendant was legally compellable {u). But, besides the class of cases just considered, another presents itself, the characteristic of which is, that the plaintiff has voluntarily done that to do which the defendant was legally compellable; in such cases the law wiU imply an antecedent request, provided the defendant has, in consider- ation of the plaintiff's act, expressly promised to indemnify or reimburse him (x). In each of the cases below cited (y) which have been con- sidered as falling within the above rule, if scrutinised, there seems to have been either acquiescence on the part of the defendant during the performance of the act alleged as a consideration by the plaintiff (z), or something equivalent to an acknowledgment by the defendant, that the plaintiff had acted at his request (a), or a retainer of the plaintiff and adoption of his services (b)^ («) C. L. Proc. Act, 1852, Sohed. (x) 1 Smith L. C. 6tli ed., 144; (B). WennaU v. Ad-ney, 3 B. & P. 250, n. (<) Judgm., Bnttain v. Lloyd, 14 (y) Wing v. Mill, 1 B. & Aid. M. & "W. 773 ; cited Judgm. , Westropp 104 ; Paynter v. Williams, 1 Cr. Sc V. Solomon, 8 0. B. 370. See Judgm., M. 810. Bowliy T. Bell, 3 0. B. 293. (s) See per Bayley, B., 1 Cr. & M. (m) 1 Smith L. C, 6th ed., 144. 819, 820; Lamby. Bunce, 4 M. & S. See Barh t. MoAiglmn, 14 0. B., N. 275. S., 626 ; England Y. Marsden, L. R. (a) Per Bayley, J., 1 B. & Ald.106. 1 0. P. 529. (6) Per Bayley, B., 1 Cr. & J. 819. 31* CONTRACTS GENERALLY. Again, where the act of the plaintiff and the promise of the defendant take place at one and the same time, the law does not require, as in the case of a bygone transaction, that, in order to make the promise binding, the plaintiff should have acted at the request of the defendant. In Tipper v. Bichnell (c) the declaration stated that, the defendants being in possession of certain mortgage deeds, of which A. was desirous to obtain an assignment by the payment of 500?., the plaintiff consented, at A.'s request, to accept bills to that amount drawn by A., upon A.'s procuring the defendants to deliver the deeds to the plaintiff as a security ; and that the defendants, in considei-ation of the plaintiff's accepting the bills (but without alleging any request on their part), undertook to deliver the deeds to him upon his paying them the amount of the bills : it was held, that a sufficient con- sideration appeared for the defendant's promise, as from the above statement, it must be infen-ed that the act of the plaintiff and the promise of the defendants were simulta- neous, taking place in the presence of the parties, and, there- fore, rendering it unnecessary that the plaintiff should have acted at the defendants' request (d). The case just cited wiU be found to illustrate the nature of a " concurrent " consider- ation hereafter adverted to (e), and is expressly in point to show, that, where the consideration moving from the one party and the promise or undertaking of the other are simul- taneous, the law dispenses with proof of any previous request from the promisor to the promisee. Massey v. Ooodall (/) offers a good illustration of the nature of a "continuing" consideration (g), and shows that, where there is such a consideration, an express request by the party whom it is sought to charge will be unnecessary. There the declaration stated that "the defendant /lac? become (c) 3 Bing. N. 0. 710. (e) Post, p. 325. {d) Tipper v. BickncU, 3 Bing. N. (/) 17 Q. B. 310. C. 710. (o) As to which see post, p. 325. CONTRACTS GENERALLY. 315 and was tenant from year to year to plaintiff of a certain farm," &c., on certain stipulations, for non-observance whereof specific penalties were to be payable by the defendant, and in consideration thereof he (the defendant) then promised the plaintiff that he would pay the plaintiff all such penalties as he might be liable to pay, according to the said stipu- lations, &c. The breach alleged was non-payment of certain penalties. Upon demurrer to defendant's plea to the above declaration, it was, inter alia, argued on his behalf that the declaration was bad, inasmuch as from the consideration there laid, which was by-gone (h), no promise such as was there laid could, in the absence of an express request, be implied by law. To this argument, however, Patteson, J., replied, " I take it that it is only necessary to lay a request where the consideration was wholly by-gone and executed at the time of the promise, and that it is not necessary when it is a continuing consideration, as this is, where the terms would continue after the promise throughout the whole tenancy. King v. Sears (i), and other cases, I think, esta- blish that distinction." And, again, the same learned Judge observed, "I agree that a past consideration will support the promise implied by law, and, as a general rule, will support no other promise. But here the defendant became tenant to the plaintiff on certain terms; whatever those terms were, the law would imply a promise to observe them ; and the promise laid here is no more than a promise to observe one of those terms, that is, to pay penalties according to those stipulations." The point decided in the preceding case will probably be better understood when the nature of a legal consideration, past, concun'ent, and continuing, future, or executory, has been investigated. To sum up what has been said in the preceding pages respecting the first of the three ingredients (viz., the request) (h) Post, p. 326. (i) 2 Or. M. & R. 48. ^1^ CONTRACTS GENERALLY. already specified (k) as forming a complete contract. In every executory contract there must, ex necessitate rei] have been a request on the part of the person promising (J). In certain species of executed contracts, as where money has been lent, there must also necessarily have been a request antecedent to the consideration. In general, however, where a contract is executed, the law requires that a request express or implied be shown. And a request wiU be im- plied — 1. Where the doctrine of ratihabitio properly applies — 2. Where the plaintiff has been compelled to do that which the defendant was legally compellable to do — 3. Where the plaintiff has voluntarily done that which the defend- ant was legally compellable to do, and the latter has afterwards expressly promised — 4. Where the consideration moving from the plaintiff and the promise of the de- fendant were simultaneous — 5. Where the consideration is continuing. considera- 2. Any act of the plaintiff from which the defendant what derives a benefit or advantage, or any labour, trouble, detri- ment, or inconvenience, performed, taken, or sustained by the plaintiff, however small the benefit or inconvenience may be (m), may suffice, in law, as a " consideration " to support a promise, and to sustain an action ex contractu. " A pre- judice to the promisee incurred at the request of the pro- misor may be a consideration as well as a benefit to the promisor proceeding from the promisee : but this must be a prejudice on entering into the contract, not a prejudice from the breach of it " (n). A promise without consideration will not support an action (o). (i) Ante, p. 308. 196. {1} lb. (n) Judgm., Gerhard v. Bates, 2 E. (m) 1 Selw. N. P., 10th ed., 42; & B. 487-8; Crowtherv. Fwrrer, 15 Smtmn t. Fegg, 6 H. & N. 295 ; La Q. B. 677, 680. Touc\e T. La Touche, 3 H. & C. 576 ; (o) Deacon v. Gridley, 15 C. B. Brmemell v. WUliams, L. R. 2 C. P. 295. CONTRACTS GENERALLY. 317 "An engagement," says Parke, B. (p), "by a person to remunerate the act of another, which benefits the former, or puts the latter to any inconvenience or loss, is a binding engagement." And, again, "consideration," says Patteson, J. (q), " means something which is of some value (r) in the eye of the law, moAdng from the plaintiff. It may be some benefit to the defendant, or some detriment to the plaintiff, but, at all events, it must be moving from the plaintiff" (s), that is to say, there must be some kind of privity between the plaintiff and defendant in order to sustain an action ex contractu at suit of the former against the latter. The term "privity," when used by legal writers, must be Privity- understood to mean " a connection or bond of union (t) (ligamen) existing between parties in relation to some par- ticular transaction ; " and when it is said that an action will not lie for " want of privity " this phrase signifies that the plaintiff and defendant are strangers to each other quoad the subject-matter in dispute (u), or, at all events, that the plaintiff, the contractee, did not with sufiScient directness conduce to the consideration for the undertaking or promise of the defendant, the contractor. It will readily be inferred from the definitions of a legal " consideration " above given, that its nature may infinitely vary (x), "wherever," indeed, " a man may do an act without a breach of any legal or moral obligation, that act may be a {p) Moss V. ffall, 5 Exch. 50. 393. See also ^ei JErle, J., Kilhcm, v. (j) Thomas v. TJiamas, 2 Q. B. Collier, 21 L. J., Q. B., 65. 859. (t) Per WOde, C. J., Blandy v. De (r) Haigh v. Brooks, 10 Ad. & E. Burgh, 6 C. B. 634. 409 ; Hart t. MUes, 4 C. B., N. S., («) See Brndton v. Jimes, 2 H. & N. 371 ; WesUake v. Adams, 3 Id. 248 ; 564 ; Alton v. Midland R. C, 19 0. Nash T. Armstrong, 10 C. B., N. S., B., N. S., 213 ; Martin v. Great Ind. 259 ; Shadwell v. Shadwell, 9 C. B., Pen. B. C, L. R. 3 Ex. 9 ; Johnson N. S., 159 ; Noton v. Brooks, 7 H. & v. Royal Mail Steam Packet Co., L. N. 499. See Covtwrier v. Hastie, 5 H. E. 3 0. P. 38 ; Robertson v. Fleming, L. Ca. 673 ; Gorgier v. Morris, 7 0. 4 Macq. Sc. App. Ca. 167. B., N. S., 588. (x) See Hartley v. Ponsonhy, 7 K (s) TweddZe t. Atkinson, 1 B. & S. & B. 872. 318 CONTRACTS GENERALLY. valid consideration for a promise to pay money to him {y), or to do any other thing. A few cases must, however, here suffice to show the nature of a good legal consideration, as well as of that privity which is requisite in order to support an action upon simple contract. The compromise of a claim may be a good consideration for a promise, though litigation may not have actually commenced (s). Where plaintiff stipulated to discharge A. from a portion of a debt due to himself, and to submit B. to stand in his place as to that portion, defendant stipulating in return that B. should give plaintiff a promissory note, the consideration moving from plaintiff, viz., his agreement to permit B. to stand in the place of A. as his debtor, being an undertaking in legal contemplation detrimental to him, was held suffi- cient to sustain the promise by defendant (a). In connection with the preceding case, Lyth v. Ault(h) may be consulted, which offers a curious illustration of the nature and sufficiency of the consideration which will support a promise at law. There the acceptance by a creditor of the sole and separate liability of one of two joint debtors was held to be a good consideration for an agreement to dis- charge the other debtor from liability. It might, indeed, primd faxiie, seem that the contract here disclosed was a mere nudum, pactum, on the ground that the creditor would get nothing in return for his rehnquishment of his claim against such last-mentioned party ; but a little reflection will show that the substituted liability was in its nature different from that which originally subsisted, so that, inas- much as the Court will not inquire into the adequacy of the consideration for a promise (c), the agreement in question (y) Per Lord Campbdl, C. J., Hall (a) Peate v. Bicken, 1 Or. M. & R. v. Dyson, 21 L. J., Q. B., 224, 226 ; 422. S. a, 17 Q. B. 785. (6) 7 Exoh. 669. (z) Cool V. WrigU, 1 B. & S. 559. (c) Per Parke, B., 7 Exch. 671. CONTRACTS GENERALLY.- 319 would be unimpeachable in a strictly legal point of view. It is, moreover, demonstrable, as remarked by Alderson, B., in the case before us, that the sole security of A. may be a better thing than the joint security of A. and B. ; for by accepting the sole security of A, instead of the joint security of both debtors, the creditor possesses a legal remedy against A. during his lifetime, and against his assets after his death, and no security whatever against B. Whereas, in the case of a joint security, after the death of A, there exists a legal liability of B., and no legal liability of A's assets, but an equitable remedy against the assets of A., subject to the necessity of making B. a party to a suit in equity. Now, these two securities are different things, and therefore a bargain to take the one for the other is good. Cases may be suggested of A. being rich and B. poor, in which the advan- tage of taking A. as the debtor in lieu of A. and B. is clear ; or it may be that A. is as rich as B., in which case the cre- ditor may fairly consider that one debtor alone is preferable to both together {d). But, although a Court of law will not inquire into the adequacy of the consideration for a promise, it will inquire so far as to satisfy itself that the consideration is of some value (e), and not illusory merely (/). Where, therefore, the consideration for the defendant's promise was stated to be the release and conveyance by the plaintiff of his interest in certain premises at the defendant's request, but the declara- tion did not show that the plaintiff had any interest in the said premises, except a lien upon them, which was expressly reserved by him, the declaration was held bad as disclosing no legal consideration for the alleged promise {g). So, in {d) 7 Exch. 674-5. (/) White v. Bluett, 23 L. J., Ex., (c) Per PaMeson, J., Thomas v. 36 ; Bracewell v. Williams, L. R. 2 Thomas, cited ante, p. 317 ; Judgm., C. P. 196. Eaigh v. Brooks, 10 Ad. & E. 320 ; {g) Kaye v. Button, 7 M. & Gtr. Hall T. Oonder, 2 C. B., N. S., 22 ; 807, cited Sma/i-t v. Sandars, 5 C. B. cited Smith v. Neale, Id. 89. 904 ; Edwards v. Baugh, 11 M. & W. 320 CONTRACTS GENERALLY. Fremlin y. Hamilton (h), a declaration setting fortli a memorandum of agreement of demise and for a lease was held bad, on the ground that it disclosed no consideration for the alleged agreement on the part of the testator ; and it was remarked per Cur., that, although " the Procedure Act has no doubt afforded great latitude in pleading," yet " it has not removed the necessity of stating a consideration for an agreement upon which a party is sought to be charged " (i). Again, where, A. being indebted to the plaintiff in a cer- tain amount, and B. being indebted to A. in another amount, the defendant, in consideration of being permitted by A. to sue B. in his name, promised to pay A's debt to the plaintiff, and A. gave such permission ; whereupon the defendant recovered from B. : judgment was arrested, on the ground that the plaintiff was a mere stranger to the consideration for defendant's promise, having done nothing of trouble to himself or of benefit to the defendant (k). It will be remarked, that the case last cited shows not only the nature of a sufficient legal consideration for a pro- mise, but also the necessity oi privity (I) between the parties to an action founded upon promises, in order that it may be sustainable {m). In Cobb v. Beche (n) this latter point receives apt illustration ; there B., the country attorney of A., sent a sum of money to the defendants, who were B.'s London agents, to be paid to C. on account of A, and the defendants promised B. to pay the money transmitted ac- cording to his B.'s directions ; but afterwards, being applied to by C, refused to pay it, claiming a balance due to them- 641 ; Stiickland v. Turner, 7 Exch. (Jc) Bourne v. Mason, 1 Ventr. 6 ; 208 ; Wright v. Colls, 8 C. B. 150 ; Tweddle ,. Athinmn, 1 B. & S. 393, Ashworth t. Mounsey, 9 Exch. 175. 397 ; Crow v. Sogers, 1 Stra. 592 ; See BHdgman y. Dean, 7 Exch. 199. Price v. Easton, 4 B. & Ad. 433. (li) 8 Exch. 308. (J) Ante, p. 317. (i) See Hutchinson v. Read, 4 Exch. (m) See Griffinhoofe v. Bauhm, 5 E. 761 ; Orme t. Galloway, 9 Exch. & B. 7i6, 755. 544. (n) 6 Q. B. 930. CONTRACTS GENERALLY. 32l selves from B. ou a general account between them. Upon this state of facts it was held, that an action for money had and received would not lie against the defendants at suit of A. " The general rule," said Lord Dentnan, C. J., " un- doubtedly is, that there is no privity between the agent in town and the client in the country : the former cannot main- tain an action against the latter for his fees, nor the latter against the former for negligence. Something, therefore, is necessary, beyond the mere relation of the parties to each other as above stated, to make the agent in town liable to the client." The subject here touched upon is more fully explained in Robbivis v. Fennell (o), where it is laid down that the client cannot maintain an action for money had and received against the town agent of his attorney, " unless the law will imply a contract to pay on request, from the relation which the several parties bear towards each other." Now the client employs the country attorney, is answerable to him for costs, and in case of negligence or misconduct must come upon him for redress. He is entitled to credit for all sums which the attorney may happen to owe him, and though he probably knows that the business must be carried on by a town agent, his payment for it to such agent is no discharge to him against the attorney (p). In like manner the at- torney employs and is liable to the town agent, who knows nothing of the client but his name, and is not even to that extent known by him. The town agent could not maintain an action for work and labour against the client by whom he was not employed ; and the rights and liabilities of the paities in such a case would be reciprocal (g). It has been held that an infant suing by prochein amy may recover from the attorney in the action damages and costs (o) 11 Q. B. 248, 256. JloiUns t. Heath, Id. 257 (c) ; (p) Tates T. Frechleton, 2 Dong. Helps v. Clayton, 17 C. B., N. S., 623. 653. iq) Judgm., 11 Q. B. 256. See 322 CONTRACTS GENERALLY. paid by the defendant as money had and received to the use of the infant {r). A simple instance of the necessity of privity between parties in order to sustain an action founded upon contract is given by Parke, J., in Baron v. Husband (s), who says, " If I give a sum of money to my servant to pay a tradesman, the latter cannot maintain an action for money had and re- ceived against the servant." So, where A. contracts with B., acting as agent for C, the legal privity is between A, the contractor and C. the contractee : so that B. can in general neither sue nor be sued upon the contract (t). But, although " the remedy for breach of contract is by the general rule of our law confined to the contracting parties " (u), there are some cases, as we shall presently see, in which the law will imply not merely the request but also the promise of the contractor (x) ; and there are other cases in which an obligation to pay money is imposed, either by the law of the land, or by virtue of the bye-law of some corporate body — ^which bye-law within its limits, and with respect to the persons upon whom it lawfully operates, has the same effect as an Act of Parliament has upon the com- munity at large (y). Further, an action of debt wiU lie not (»•) Collins Y. Brook, 4 H. & N. 270; Watson v. RmseU, 3 B. & S. 34 ; 5 S. €., 5 Id. 700. See Wilkinson v. Id. 968 ; Fisher v. Marsh, 6 B. & S. Grant, 18 C. B. 319, -where the soli- 411 ; Mainprice v. Westley, Id. 420 ; citor of a proposed mortgagee was held Barkworth v. Ella-man, 6 H. & N. not entitled to recover the amount of 605 ; ffUl v. Kitching, 3 C. B. 299 ; his charges from the proposed mort- Barlow v. Browne, 16 M. & W. 126 ; gagor — the negotiation for the mortgage Hooper v. Tr^ry, 1 Exch. 17 ; Driver having gone off through the default of v. Burton, 17 Q. B. 989 ; KUham v. the latter party. Collier, 21 L. J., Q. B., 65 ; Robertson (s) 4 B. & Ad. 611, 612 ; Williams v. Wait, 8 Exch. 299 ; Helps v. Clay- T. Everett, 14 East, 582 ; LUly t. ton, 17 C. B., N. S., 553. Hays, 5 Ad. & E. 548; cited and dis- (u) Per Coleridge, J., Imtiley v. tinguished in Noble v. National Dis- Gye, 2 E. & B. 246. count Co., 5 H. & N. 228, and in (x) Ante, p. 308 ; post, p. 327. LiversidgeY. Broadbent, 4 Id. 611. {y) Per Lord Abinger, C. B., Hop- it) See, further, as to want of pri- kins v. Mayor of Swansea, 4 M. & W. vity, Litt Y. Martindale, 18 C. B. 314; 640 ; 3 Bla. Com. 160. CONTRACTS GENERALLY. 32.3 merely where there is a contract express or implied between the parties, but wherever there is a legal right on the one side to receive the money sued for, and a legal liability on the other to pay it (z). Debt will also lie for recovery of a penalty under a statute (a). In Gerhard v. Bates (b), the first count of the declaration alleged, that, before the defendant's promise after mentioned, the defendant and others had formed a company, the capital of which was divided into a certain number of 11. shares, out of which 12,000 were to be appropriated to the public at 12s. 6d. per share, free from further calls — that the defendant was a promoter and managing director of the company, and in offering the said 12,000 shares to the public, had, in such character, " guaranteed and promised to the bearers " of those shares a minimum annual dividend of 33 per cent., payable half-yearly, and that the said guarantee and promise should remain in force until the said 12s. 6d. per share should be thus repaid to the bearers of the 12,000 shares before mentioned. The declaration then averred, that the plaintiff, confiding in the defendant's said promise, became the purchaser and bearer of 2,500 of the 12,000 shares at 12s. 6d. per share, and took the same on the faith of the defendant's guarantee and promise, and not otherwise, and had fulfilled the engagement on his part, yet that the defendant had not paid any dividend. This count of the de- claration was held to be bad on demurrer : 1st, because it did not sufficiently allege any promise to the plaintiff (c) ; 2ndly, because there appeared to be an entire absence of considera- tion, ipasmuch as it was not stated, that, " from the plaintiff's buying and becoming bearer of " the shares mentioned, any benefit accrued to the defendant ; or that, at the time when the contract was supposed to have been entered into, any (s) Addison v. Mayor of Preston, (6) 2 E. & B. 476. 12 0. B. 108, 133. (c) As to which, post, p. 325. (a) 3 Bla. Com. 161. Y 2 324 CONTRACTS GENERALLY. prejudice accrued to the plaintiff ; Srdly, because, there was nothing to show any request by the defendant to the plaintiff, and no privity was established between them. I have men- tioned this case at some length, in order that the count above abstracted, may be compared with the second count of the declaration hereafter noticed in connection with actions founded upon tort, and with the rule as to privity applicable in the latter class of cases. With the facts and decision in Gerhard v. Bates, so far as above mentioned, may usefully be contrasted that peculiar class of cases there alluded to by Lord Campbell, in which it has been held, that an action may be maintained for a reward offered in a public advertisement, at suit of one who has fulfilled the conditions indicated therein {d). In such cases there might at first sight seem to be a want of privity ; there is, however, a distinct promise to any one who shall bring himself within the terms of the advertisement ; and there is a good consideration for the promise in the benefit to accrue to the promisor, — as in showing that he is heir-at-law to a person who died seised of real property and intestate ; or prejudice to the promisee, — as, that he shall entitle himseff to the reward by voluntarily coming forward as a witness. Those cases, nevertheless, remarked Lord Gawphell, although not now to be questioned, are somewhat anomalous, and " the party who makes the discovery might perhaps have been permitted to sue for work and labour done and performed at the request of the defendant, the sum stated in the adver- tisement being used as evidence of what ought to be reco- vered on a quantum m,eruit." The meaning of the term ' consideration ' and of ' privity ' being now apparent, it will be convenient to notice, that the {d) See Williams v. Carwa/rdine, 4 16; Th(itcher\. E'nglaivd,ZG.'&.iH; B. & Ad. 621 ; Tamer t. Walker, L. M'Kune v. Joynson, 5 C. B., N. S., R. 1 Q. B. 641, and 2 Q. B. 301; 218; NemlleY.Kdly, 12C. B.,N. S., LockhaH v. Bar7ui/rd, 14 M. & W. 740; Judgm., Williams y. Byrnes, 1 674 ; Lancaster y. Walsh, 4 M. & "W. Moo. P. C. C, K. S., 198. CONTRACTS GENERALLY. 325 consideration may be altogether pobst and executed at the time when the promise is made ; it may be contemporaneous or concurrent with the promise (e), as, where two persons meet together and reciprocally promise to do certain specified things, the promise of the one party being the consideration for the promise of the other (/). It may sometimes be corr rectly designated as ' continuing j' as in Powley v. Walker (g), where the subsisting relation of landlord and tenant was held to be a sufficient consideration for the tenant's promise to manage a farm in a husbandlike manner. Lastly, the con- sideration may be executory — as, where A., in consideration that B. will do something specified at a future day, promises that he will himself do some other thing (h). Now, in this case, difficulty may be felt in determining whether the promise made by one of these parties is, in truth, the consideration for that made by the other of them, or whether the perform- ance of the one promise be the consideration for the other, in which latter case such performance will constitute a con- dition precedent to the right to sue. This difficulty can only be surmounted by looking narrowly at the words of the agreement entered into, and at the intention of the con- ti'acting parties (i). 3. The third inarredient which enters into the conception Tte promisa . . ' . . —■what. of a simple conti'act, complete in all its parts, is the proTnise to do or not to do a particular thing made by the contractor (c) See West v. Jaclson, 16 Q. B. p. 314. 380 ; Tipper t. BichnM, cited p. 314 ; (h) See Bicks v. Gregory, 8 C. B. Thornton t. Jenyns, 1 M. & Grr. 166 ; 378, 387 ; Payne t. WUson, 7 B. & Harvey t. Johnston, 6 C. B. 295. 0. 423. (/) See Christie y. Bordly, 7 G.B., (i) See Thorpe v. Thorpe, 1 Ld. N. S., 561, 567. "Mutual promises Raym. 662 ; Graves v. Lec/g, 9 Kxch. to perform agreements" are not to be 709 ; S. C, 11 Id. 642 ; 2 H. & N. averred in pleading : C. L. Proc. Act, 210 ; cited Pust y. Sowie, 32 L.' J., 1852, ». 49. Q. B., 179, 180. (g) 5 T. R. 373 ; recognised Beale Performance of conditions precedent T. Sanders, 3 Bing. N. C. 850. See may now be averred generally in plead- also Massey v. Goodall, cited ante, ing : C. L. Proc. Act, 1852, a. 57. 826 CONTRACTS GENERALLY, to the contractee {k). In every executory contract it is cleat that there must be a promise — express or implied (l) — ^by the former of these parties to the latter ; for, if A. request B. to do something for him, and B. does it, the law will (if neces- sary) imply a promise by A, to remunerate B. for the trouble taken or inconvenience suffered on his behalf ; though this implication may be rebutted by circumstances. So, " where a relation exists between two parties, which involves the performance of certain duties by one of them, and the payment of reward to him by the other, the law will imply, or the jury may infer, a promise by each party to do what is to be done by him " (m). In the case, also, of an executed consideration moved by a previous request (n), express or implied, the law will, in general, in the absence of any express promise, imply a pro- mise by the contractor (o). There are, however, exceptions to this rule, the more important of which are as follow ; — 1. Under the particular circumstances specified at p. 313, viz., where the plaintiff has voluntarily done that whereunto the defendant was legally compellable ; for there, as already shown, an express promise by the defendant is necessary, in order that an action against him may be sustainable for breach of contract. 2. In the case of a barrister, who cannot make a contract of hiring and service concerning advocacy in litigation (p) ; or of a physician, who, although he may have acted at the request of the patient, will not, at common law (q), without proof of an actual contract, be entitled (i) Ante, p. 308, Stra, 933. (1) Stranhs r. St. John, L. E. 2 0. (o) See Nordemstrom v. Pitt, 13 M. p. 376. & W. 723 ; Streeter v. Horlock, 1 (m) Judgm., Morgans. Ravey,Q'B.. Bing. 34; Fish t. Kelly, 17 C. B., & N. 276. N. S., 194. (n) The general rule, it will be re- (p) Kennedy v. Broun, 13 C. B., N. membered, is, that a past consideration S., 677 ; Broun v. Kennedy, 33 L. J., will not support a subsequent promise, Chanc, 71. unless irwved by a previous request, (g) See Gibbon v. Budd, 2 H. & 0. ante, p. 308 ; Bayes v. Warren, 2 Q2 ; Be la Rosa v. Prieto, 16 C. B., CONTRACTS GENERALLY. 327 to sue him for services professionally rendered (r) ; the pre- sumption of law being here against the existence of a con- tract for remuneration (s). 3. In the case of an infant who cannot hind himself except for necessaries, and whose express promise, unless made in writing after he comes of age, will not suffice to charge him. 4. In the case of a feme covert, whose contract, with some rare exceptions, is absolutely void (t). 5. In certain cases where the legal remedy is barred, although the right remains (u). Cases falling under one or other of the three latter of the classes just specified will be further alluded to in subsequent portions of this work. Where the consideration, although past and executed, wiU support an action by reason of there having been an antecedent request, express or implied, it is a general and very important rule, that the consideration "will sup- port no other promise than such as would be implied by law " (x). Thus, where an account has been stated between parties, and a balance ascertained to be due from one of them to the other, the law implies a promise by the debtor to pay on request, so that any ex post facto promise by him differing in its nature therefrom, ex. gr., to pay on a particular day named, would be nudum pactum, unless made upon a new consideration. If this were not so, there would, in truth, be "two co-existing promises on one considera- N. S., 578; decided imder tie Stat. (a) " According to tte cuirent of re- 21 & 22 Vict. c. 90. cent authorities, beginning with ITop- (r) Clwrley v. Bolcot, 4 T. E. 317 ; hi'ns t. Logan, infra, and ending with Veitch r. Russell, 3 Q. B. 928. JRoscorla t. Thomas, infra, where the («) Per Coleridge, J., 3 Q. B. 937. consideration is past and executed, it [t) It win be almost superfluous to will support only such a promise as the observe, that a contract void in its in- law wiU imply from that executed con- ception cannot be rendered valid by a sideration : " Judgm., 6 C. B. 174, and subsequent express promise. cases cited post. (u) Post, p. 331. 328 CONTRACTS GENERALLY. tlon " (i/)—SL state of things manifestly incongruous and nonsensical. Roscorla v. Thomas {z) is usually cited with reference to the extent and nature of the promise which may be sup- ported by an executed consideration : there the declaration (in assumpsit) stated, that, in consideration that plaintiff, at the request of defendant, had bought of defendant a horse at a certain piice, defendant promised that the horse was sound and free from vice, &c., whereas he was not free from vice ; after verdict for the plaintiff it was objected, in arrest of judgment, that the precedent executed consideration was insufficient to support the subsequent alleged promise ; and this objection was held fatal by the Court of Queen's Bench, for the promise must, as a general inile, be co-extensive with the consideration ; but, " in the present case the only promise that would result from the consideration as stated, and be co-extensive with it, would be to deliver the horse upon request ; " and " the consideration stated would not raise an implied promise by the defendant that the horse was sound or free from vice." Lord Denman, G. J., after making the remarks above cited, proceeds to consider whether the con- sideration specified would support an express promise, and concludes from the cases that it would not ; because, " a con- sideration past and executed will support no other promise than such as would be implied by law." Bmmms T. Em^mens v. Elderton [a) may be regarded as a leading authority, with reference to the rule, that a past considera- tion will support no promise other than what the law would imply. There the action was brought by a solicitor against the secretary of an insurance company, the declaration stating, that "it was agreed by and between the plaintiff {y) ffopl-ms V. Logan, 5 M. & W. 7 Exoh. 572. 241, 249. (a) 4 H. L. Ca. 624 -,8.0., 13 C. B. (z) 3 Q. B. 234 ; Kaye v. Button, 495 ; 6 C. B. 160 ; 4 C. B. 479 ; Lot- 7 M. & Or. 807 ; Atkinson v. Stephens, timore v. Garrard, 1 Exch. 809. CONTEACTS GENERALLY. S29 and the said company, that, froih the 1st of January then next, the plaintiff, as the attorney and solicitor of the com- pany, should receive and accept a salary of 1001. per annum in lieu of rendering an annual bill of costs for general busi- ness transacted by the plaintiff for the said company as such attorney and solicitor, and should and would, for such salary of lOOZ. per annum, advise and act for the said company on all occasions in aU matters (with certain specified exceptions) connected with the said company." That the said agree- ment being so made, afterwards, "in consideration that the plaintiff had, at the request of the said company, promised the said company to perform and fulfil the same in all things on his part, the said company promised the plaintiff to perform and fulfil the same in all things on their part, and to retain and employ him, as such attorney and solicitor of the said coTnpany, on the terms aforesaid." The breach alleged was, that the company did not nor would continue to retain or employ the plaintiff as their solicitor on the terms stated, but wrongfully and without reasonable cause dismissed him. The technical question which arose upon the count of the declaration above set out, and which was discussed successively in the Court of Common Pleas, in the Exchequer Chamber, and in the House of Lords, was, whether the alleged promise to retain and employ was to be implied from the agi-eement stated, or whether it did not in some measure, enlarge the general promise to perform that agreement, so as to be nudum pactum,, unless supported by some new consideration. "If," said CrompfoTC, J., delivering his opinion in regard to the validity of the declaration to the House of Lords, " the agreement itself contains this same promise to retain and employ as such attorney on the terms aforesaid, then these words, being surplusage, will not prejudice the count, and must be taken as merely pointing the promise to the breach afterwards assigned, for ceasing to retain and employ." 830 CONTRACTS GENERALLY. " If, on the other hand, the words in question at all enlarge the previous agreement by binding the company to retain the plaintiff in any manner in which the agreement did not bind them, as by binding the company to find him any particular work, or to keep him in work, or to employ him in any of the business which he was not to do for the lOOZ. per annum, or to continue him in the employment for any time for which they were not bound by the agreement, ■ — the count will be bad for want of a consideration to support this additional promise " (6). Such being the precise questions for decision in JEmTnens V. Elderton, the majority of the Judges held, and in con- formity with their opinion the House of Lords determined, that the former of the two views above suggested, with refer- ence to the legal meaning of the words used in the declara- tion, was correct, and that the declaration itself was conse- quently good. The promise to " retain and employ " being restricted and limited by the terms of the agreement therein previously set out as having been made between the parties. But, although it is generally true, as above stated, that a consideration past and executed will support only such a promise as the law will imply therefrom (c), that strict rule has, in certain cases, been departed from, and the Courts have held, that, where the consideration for a promise was originally beneficial to the party promising, yet, if he be protected fi'om liability by some provision of the statute or common law meant for his advantage, he may renounce the benefit of that law ; and, if he promises to pay the debt, which is only what an honest man ought to do, he is then bound by the law to perform it (d). (h) "If a person contracts with Scotsonv. Pegg, 6 H. & N. 301. another to do a certain thing, he can- (c) Ante, p. 327. not make the performance of it a con- (d) Judgm., EarleT. Oliver, 2Exch. sideration for a new promise to the 90, citing note to Wennall\. Adaey, same individual:" per WUde, B., 3B. &P. 252. CONTBACtS GENERALLY. 331 As exemplifying the qualification just stated of the general rule, let us take the case of a debt barred by the Statute of Limitations. A debt so barred, says ParJce, B. (e), is unques- tionably a sufficient consideration for every promise, absolute or unqualified, qualified or conditional, to pay it. Promises to pay a debt simply or by instalments, or when the party is able, are aU equally supported by the past consideration, and, when the debt has become payable instanter, may be given in evidence to support an indebitatus count in the declaration for its recovery (/). So, when the debt is not already barred by the statute, a promise to pay the creditor will revive it, and make it a new debt, and a promise to an executor to pay a debt due to his testator creates a new debt to him. But although an express promise revives the debt in any of the cases just mentioned, it must not thence be inferred that the debt will be a sufficient consideration to support a promise to do a collateral thing — as to supply goods, or to perform work and labour {g). In such case, the promise would be but an accord unexecuted, and no action would lie for not executing it Qh). In Flight v. Reed (i), it was held by a majority of the Court of Exchequer, that bills of exchange given since the repeal of the usury law in renewal of bills given while that law was in force, to secure payment of money lent with usurious interest, were valid — the receipt of the money by way of loan being a sufficient consideration to support the new promise to pay it, and this proposition being relied upon (e) See-Kewarv. Seame, IM. & W, Et vide per Wigram, V.-C, Philips v, 323. Philips, 3 Hare, 281, 299 ; per Wil' (/) In SmMh v. Thome, 18 Q. B. Uams, J., Buchnaster v. Russdl, 10 139, Parlce, B., otserves, "Theae- C. B., N. S., 749, 750 ; ^r MaHin, knowledgment must be consistent with B. , Oockrill v. Sparkes, 1 H. & C. an intention to pay either on request, 700. or else (whioh practically comes to the ( g) See Reeves v. Seame, 1 M. & W. same thing) at the end of a particular 323. period which has elapsed, or on some (h) Judgm., 2 Exch. 90. condition which has been fulfilled." (i) 1 H. & C. 703, 716. 332 CONTRACTS GENERALLY. " that a man by express promise may render himself lialble to pay back money which he has -received as a loan though some positive rule of law or statute intervened at the time to prevent the transaction from constituting a legal debt." Moral con- One class of cases, viz., where there has been a moral sideratiou. ■ x i_ consideration for a subsequent express promise, must here be specially noticed, because it was at one time thought that the obligation thus created might sustain and render binding a subsequent express promise ; but this doctrine seems to have been shaken by Littlefield v. Shee {h) ; and has been definitively exploded in Eastwood v. Kenyon (I) and Beaumont v. Reeve (m), where Lord DenmxMi states the result of the cases to be, that " an express promise cannot be supported by a consideration from which the law could not imply a promise," save only in certain cases which he specifies (n). The doctrine now accordingly established upon the point in question may be supported by reasoning such as Dr. Story urges in his Treatise on Bailments (o) : " There are," says that eminent jurist, " many rights and duties of moral obliga- tion which the common law does not even attempt to enforce. It deems them of imperfect obligation, and therefore leaves them to the conscience of the individual. And, in a prac- tical sense, there is wisdom in this course ; for judicial tri- bunals would otherwise be overwhelmed with litigation, or would become scenes of the sharpest conflict upon questions of casuistry and conscience " {p). From what has been just said, it follows that the mere (h) 2 B. & Ad. 811. tion are collected in FligU v. Reed, (I) 11 Ad. & E. 438. supra. (m) 8 Q. B. 483 ; recognised in (o) 5tli ed., p. 183. Fisher Y. Bridges, 3 E. & B. 642, re- (p) Courts of law tierefore "decide versing judgm. m S. (7., 2 E. & B. according to the legal obligations of 118. parties :" per Alderson, B., Turner v. (m) The oases as to moral considera- Mason, 14 M. & W. 117. CONTRACTS GENEEALLY. 333 moral obligation on a father to maintain his child affords no inference of a legal promise to pay his debts ; so that "if a father turns his son upon the world, the son's only resource, in the absence of anything to show a contract on the father's part, is to apply to the parish, and then the proper steps will be taken to enforce the performance of the parent's legal duty " (q). If, indeed, a father does any spe- cific act, from which it may reasonably be inferred that he has authorised his son to contract a debt, he may be liable in respect of the debt so contracted (r). But the law does not authorise a son to bind his father by his contracts (s). Nor is there any legal obligation on the personal representative of the mother of a bastard child to expend the assets of the deceased in the maintenance of the child (t). Although, when strictly and technically examined, a simple contract may doubtless be analysed as in the preceding pages, and, if thus analysed, will be found, as there stated, to consist of a request, a consideration, and a promise ; yet so minute and critical an inquiry into its elements is not in very many cases needed, preliminary to adjudicating in an action founded upon it. The truth of this remark will suffi- ciently appear from what has been already said relative to implied contracts, promises, and requests (u). And we should also remember that in very many cases no question at aU is raised as to the fact of some contract having been entered (g) Per Jervis, C. J., Shelton t. rack, 8 Exeh. 208 ; with wMch com- Springett, 11 C. B. 455. Per Lord pare Smith v. Jioche, 6 C. B., N. S., Abiriger, C. B., MortimoreY. Wright, 223 ; ante, p. 326; Coopers. Parher, 6 M. & W. 482. A promise to the 14 C. B. 118. plaintiflF (an unmarried -woman), that, (r) Per Lord Ahinger, O. B., Morti- if she will abstain from affiliating a more v. Wright, supra, child, the defendant wiU pay for its (s) Per Maule, }., 11 C. B. 456. maintenance, is founded on good legal (*) Ruttinger v. Temple, 4 B. & S. consideration : Linnegaur v. Eodd, 5 491. C. B. 437 ; Jennings v. Brmm, 9 M. (u) Ante, pp. 303, 308, 326. & W. 496. See Crowhwit v. Lame- S34 CONTRACTS GENERALLY. into between the parties, the sole issue at the trial having reference to the precise terms and nature of such contract. The same facts will, moreover, frequently serve to evidence either an executed or an executory contract, at the option of the pleader {x), according as they are regarded by him a priori or ex post facto. It sometimes happens, also, that a consideration, which at first sight appears to have been past at the time of the alleged promise, and therefore insufficient to support it, is found on examination to have been in truth concurrent, and consequently unexceptionable. In Steele v. Hoe (y), the Court of Queen's Bench take occasion to obsei-ve, that " The expression that a promise is founded upon a consideration conveys the notion that the consideration precedes the pro- mise in the mind of the party making the promise ; he pro- mises because the consideration exists ; and this form of expression is shown by the authorities to have been frequently used when the consideration and the promise are concurrent. Each side of a contract is consideration or promise according to the party speaking of it ; and if each party were to put into writing his own promise, each side of the contract would in turn appear to have preceded the other, though both formed one agreerhent." When the words of an agreement in their ordinary acceptation are thus capable of expressing either a past or a concun-ent consideration, and where upon one construction the instrument would be void, the other construction is to be adopted which makes it valid (2:), ut res mxigis valeat quam pereat. We thus see that various reasons may be adduced expla- (x) See Payne v. Wilson, 7 B. & C. Oldershaw v. King, 2 H. & N. 517 ; 423 ; cited 2 H. & N. 524 ; Streeter v. S. 0., Id. 399 ; cited per BramweU, Horlock, 1 BiQg. 34. B., Soad r. Grace, 7 H. & N. 497, iy) 14 Q. B. 431, 445. and in Westhead v. Spnson, 6 H. & N. (s) Judgm., Steele t. ffoe, 14 Q. B. 732 ; Thorntony. Jenyns, 1 M. & Gr. 445 ; Ooldshede v. Swan, 1 Exch. 154 ; 166, 188-9. Bainbridge v. Wade, 16 Q. B. 89 ; CONTEACTS GENERALLY. 335 natory of what has been above said ; viz., that any minute analysis, such as has been heretofore submitted, of a simple contract is, in very many cases which occur to the practitioner, wholly unnecessary. And if, furthermore, we call to mind that the common indebitatus counts will often alone suffice in an action of debt on simple contract, we shall readily see why it is that questions involving distinctions so nice and subtle as those which have been latterly under discussion, compa- ratively seldom present themselves for judicial notice or inquiry. Having in the previous pages characterised and classified some rules *^ ■*■ ^ ^ of general according to their rank the various kinds of contracts — "ei^Sn'*''"" haviag successively adverted to contracts of record — to speciarw" special and to simple contracts, I propose to consider briefly ^""^ ^' some few rules of general and extensive application, which influence our Courts in adjudicating upon them, and which may with truth be said to have a direct and important bearing upon even the most ordinary dealings between man and man. Now, with reference to contracts, of whatsoever kind they Effect of •^ fraud on be, the primary rule is, that good faith must be observed <=oiitoa«ta. between the contracting parties — ex dolo malo non oritur actio (a). — " No contract," says Patteson, J. (6), " can arise out of a fraud, (i.e., unless the party upon whom such fraud was practised chooses to accept and ratify the contract (c),) {a) To the remarks upon this maxim though obtaiiied by fraud, is perfectly in Leg. Max., 4th ed., pp. 702 et seq., good, if the party defrauded thinks fit the reader is referred for additional in- to ratify it "). Kingsford v. Merry, 1 formation as to the subject touched H. & N. 577, reversing & C, 11 Exch. upon in the text. 603. (6) Camvpbdl v. Fleming, 1 Ad. &. In Stevenson v. Newnham, 13 C. B. E. 42 ; Jones v. Tates, 9 B. & C. 532, 285, 303, the Court observe, " It must 539. be considered as established, that fraud (c) See White v. Garden, 10 C. B. only gives a right to avoid a contract or 919, 927 (where Talfourd, J., says, purchase." And see the cases cited "A contract for the sale of goods, lb. ; Youn^ v. BUliter, 8 H. L. Ca. S36 CONTEACTS GENEEAiLY. and an action brought upon a supposed contract which is shown to have arisen from fraud may be resisted." It might, indeed, be impossible to give a definition of what con- stitutes fraud so as to meet all the various combinations of circumstances to which that word would apply ; but there can be no difficulty in saying, that " whenever any one has by wilful misrepresentation induced another to part witK his rights on the belief that such representation was true," this is, in the plainest, and most obvious sense, a fraud which a Court of justice will not tolerate (d). The terms ex- planatory of what fraud is, here used, being very general, may, it is conceived, be so understood as to include any case involving it which can readily be suggested — whether the contract in question be executed or executory — special or simple (e). On the ground of fraud, artifice, or deceit, as we have already seen (/), the judgment of a Court of law may be set aside (g), and a deed although duly executed may be success- fully impugned ; d fortiori, then, may fraud be alleged to nullify a contract not under seal, or with a view to com- pelling the restitution of property transferred or money paid in pursuance of it. A contract induced by fraud is, how- ever, not void, but voidable (A). "A person," it has been 682, reversing S. C, 6 E. & B. 1, 17, {d) Per Lord CranwoHh, Eeyndl v. 25 ; per Parke, B., Murray v. Mann, Sprye, 1 De Gr., M. & G. 691. See 2 Exch. 541. Curson v. BdwoHhy, 3 H. L. Ca. 742. In The Deposit and General Life For a definition of fraud, consult also 7ms. Co. T. Ayscough, 6 E. & B. 761, Ricliardson Diet, and Roget'sThesaur., Lord CamrplieU, C. J., says, " It is now ad verb. weU settled that a contract tainted by (c) As to evidence of fraud, see fraud is not void, but is only voidable Eorsfall v. Thomas, 1 H. & C. 90. at tie election of the party defrauded. " (/) Ante, pp. 267, 283. Bt vide per Pollock, C. B., Rogers v. (g) SeeBowmY. Evans, 2H. L. Ca. Hadley, 2 H. & C. 247. 257. As to rescinding a contract on the (h) See the cases cited, n. (c), supra ; ground of fraud, see Clarke v. Dick- Oakes v. Turquand, L. K. 2 H. L. son, E. B. & E. 148 ; cited Beg. v. 325 ; Beese River Silver Mining Co. v. Saddlers' Co., 10 H. L. Ca. 421 ; Cole Smith, L. K. 4 H. L. 64. v. Bishop, E. B. & E. 150, u. (I). CONTKACTS GENERALLY. 337 said, " who is induced to, part with his property on a fraudu- lent contract, may, on discovering the fraud, avoid the con- tract, and claim a return of what has been advanced upon it. Fraud destroys the contract ab initio, and the fraudulent purchaser has no title. But if the party defrauded would disaffirm the contract, he must do so at the earliest prac- ticable moment after discovery of the cheat. That is the time to make his election, and it must be done promptly and unreservedly. He must not hesitate, nor can he be allowed to deal with the subject-matter of the contract and afterwards rescind it. The election is with him : he may affirm or disaffirm the contract, but he cannot do both ; and if he concludes to abide by it as upon the whole advan- tageous, he shall not afterwards be permitted to question its validity " (i). A few cases shall presently be cited in illustration of the remark that fraud wiU vitiate and avoid a simple contract. I would, however, first observe, that a distinction undeniably Moral and l^gal fraud. exists between moral, and legal fraud ; that there are many kinds of moral fraud which clearly could not be made avail- able, either as ground of action or by way of defence, in a Court of law. Thus a vendor is entitled to sell for the best price he can get, and is not in any way liable at law for a simple commendation of his own goods, however worthless they may be, provided he has not made any false state- ment as to their quality or condition, nor asserted anything respecting them which may amount to a warranty in legal contemplation {k). In a recent case (l), it was held that the sale of a glandered horse by a person knowing it to be so, gives no right of action to a buyer ignorant of the defect, and, in consequence of it, (i) Massonv. Sovet, 1 Denio (U. S.) {I) Sill v. Balls, 2 H. & N. 299, E. 73-4 ; Cam/pbell v. Fleming, 1 Ad. 305-6 ; with wHch compare Cooke v. & E. 40 ; Oalces t. Turgiumd, supra. Waring, 2 H, & C. 332, where the (i) Leg. Max., 4th ed., 749, and action was in tort, cases there cited^ 338 CONTEACTS GENERALLY. sustaining damage. Here, remarked Bramwell, B., the buyer knows of the possible existence of the defect, or he does not. On the former assumption, he has no right of complaint if he chose to purchase without a warranty : on the latter assump- tion, he ought not to be any better off for his ignorance. The rule caveat emptor is in truth applicable under the circumstances supposed. It has been held, too, that the vendor of a chattel, in which there is a patent defect which greatly diminishes its value, will not incur liability by silence with regard to it (m) ; and if A. treats with B. for the pur- chase of an estate knowing that there is a valuable mine under it, and B. makes no inquiry, there is authority to show that A. is not bound either at law or in equity to give infor- mation as to the existence of the mine (n). Now, in any of the cases here suggested, although the moralist might pos- sibly condemn, our law would decline to give redress. Ifon OTune quod licet honestum est (o). As, on the one hand, there may thus be an intention to mislead, or even an attempt to induce a person unknowingly to sacrifice his own interest, without fraud in law ; so, on the other hand, legal fraud may exist, without any serioiis amount of moral turpitude. " The cases," says Parke, B., in Murray v. Mann {p), " show a distinction between legal and moral fraud. For instance, where a person purports to accept a bill of exchange by procuration, when in fact he has no such authority, that has been held (g) a legal fraud, render- (m) Leg. Max., 4th ed., 750, 751. to whom the guarantee is given, Bar- The maxim, "silence gives consent,'' wick v. English Jt. Stk. BTc., L. R. 2 does in some cases apply : for instance, Ex. 269 ; from the underwriter of a "where there is a duty to speak, and sea policy. Bates v. Bevntt, L. R. 2 Q. the party does not, an assent may be B. 695 ; Proudfoot v. Montefiore, L. B. inferred from his silence ; " per Bram- 2 Q. B. 611. well, B., Russell v. Thornton, 4 H. & (ji) Per Lord Eldon, Turner \. Ear- 's. 798. See as regards the effect of vey, Jac. 178. concealing a material fact from the (o) D. 50, 17, 144. sureties to a guarantee ; Lee. v. Jones, (p) 2 Exoh. 538, 541. 17 C. B., N. S., 482; from the person (q) PolhUl v. Walter, 3 B. & Ad. CONTRACTS GENERALLY. 339 ing the party liable to an action of deceit," although the jury negatived the existence of fraud. As to the sufl&ciency of " legal " fraud to support an action ■when unaccompanied by any degree of "moral" fraud, judicial opinions have conflicted. A principal, it has been urged, may in many cases be responsible for the fraud of his agent, although quite innocent in a moral point of view. " Whether," remarks Lord Lyndhurst, in Attwood v. SmaU{r), " a particular representation be made by the principal, or by the agent whom he employs for the purpose of the contract, is wholly immaterial. If the agent acts fraudulently, even without the knowledge of the principal, what is that to the party contracting? The contract is vitiated." And again, according to the opinion of Lord Ahinger, G. B., diss, in Cornfoot v. Fowhe (s), (a remarkable case, which seems how- ever to have been well decided (t) ), "it is not correct to sup- pose, that the legal definition of fraud and covin necessarily includes any degree of moral turpitude. Every action for the breach of a promise — for deceit — for not complying with a warranty, or for a false representation, is founded upon a legal fraud, which is charged as such in the declaration, although there be no moral guilt in the defendant. The warranty of a fact which does not exist, or the representation of a mate- rial fact contrary to the truth, are both said, in the language of the law, to be fraudulent, although the party making them suppose them to be correct." The weight of authority, however, viewed independently of 114 SeeTkom-v.Sigland,S'ETcb..725, principal." See also, per PoiZoci!;, C. B., 729 ; Eastmodv. Bain, 3 H. &N. 738. Atkinson v. Pococh, 1 Exch. 796, cited (r) 6 CL & F. 413. And see, per arg. 6 0. B. 322. Per Rolfe, B., 6 M. & Lord Oamphell, 1 H. L. Ca. 615. His W. 370. LordsMp there says, "In an action («) 6 M. & W. 358 ; cited 8 E. & B. upon contract, the representation of an 252 ; and in Moena v. Heyworth, 10 agent is the representation of the prin- M. & W. 155. cipal ; but, in an action on the case for (t) See per Lord St. Leonards, 2 deceit, the misrepresentation or con- Macq. H.; L. Ca. 144. cealment must be prOTed against the z 2 340 CONTRACTS GENERALLY. the decision of the Court of Exchequer in Cornfoot v. Fowke, and in Udell v. Aiherton, presently noticed, where the judges of the same Court were equally divided in opinion, is against the views propounded by the eminent individual last named. " It is settled law," says Parlce, B., in ThoTn v. Bigland {u), " that, independently of duty (x), no action will lie for a mis- representation, unless the party making it knows it to be untrue, and makes it with a fraudulent intention to induce another to act on the faith of it, and to alter his position to his damage. This appears from the cases of Collins v. Evans (y), and Ormrod v. Huih (z), which have perfectly settled the law on that point." In Wilde v. Gibson (a), it was contended, that an action of deceit might be maintained, without proof of actual fraud ; but Lord Campbell answered, " From that position I entirely dissent. If you mean by ' fraud,' an intention to injure the party to whom the representation is made, or to benefit the party who makes the representation, there may be an action of deceit without fraud ; but there must be falsehood : there must be an assertion of that which the party making it knows to be untrue ; the scienter must either be expressly alleged, or there must be an allegation that is tantamount to the scienter of the fraudulent representation, and this allega- tion must be proved at the trial " (b) ; and his Lordship adds, '' If that falsehood is stated, without any view of benefiting the person who states the falsehood, or of injuring the person to whom the falsehood is stated, in one sense of the word you may say it is not fraudulent, but it is a breach of moral obligation, it is telling a lie ; and if a lie is told, whereby a third person is prejudiced, although there may (w) 8 Exoh. 731. (z) 14 M. & W. 651. (k) Post, Book III., Chap. 1. (a) 1 H. L. Ca. 605, 633. {y) 5 Q. B. 820 ; ChUdersv. Wooler, (5) Citing Foster v. Charles, 1 Bing. 2 E. & E. 287, 306, 308 ; explaining 106 ; Poimi v. Walter, 3 B. & Ad. and distinguishing -H"«»iy/ir2/s y. Pratt, 123; Corlettr. Brown, 8 Bing. 37. 5 Bligh, N. S., 1C4. CONTRACTS GENERALLY. 341 be no profit to the person who tells it, and although no injury was intended to the party to whom it is told, but a benefit to a third person, it is clearly a breach of moral obligation, and is a fraud which will support an action of deceit." The proposition here printed in italics seems to be alto- gether unimpeachable, and indicates the nature of the fallacy into which those have fallen who contend that legal fraud may exist without any admixture whatever of " moral turpitude." Additional authorities might readily be cited in support of the view here advocated. In Taylor v. Ashton (c), Parke, B., distinctly states his adhesion to the doctrine, that " an action for deceit will not lie, without proof of moral fraud;" and he further observes, that " there may undoubtedly be a frau- dulent representation, if made dishonestly, of that which the party does not know to be untrue, if he does not know it to be true." Further, in delivering their judgment in the case just cited, the Court of Exchequer lay down, that in an action for false representation, and damage resulting there- from, it is not necessary to show that the defendant knew the fact affirmed by him to be untrue ; if he stated a fact which was untrue for a fraudulent purpose, he at the same time not believing that fact to be true, there would, under such circumstances, be both a legal and a moral fraud (cT). In connection with the subject just discussed, it is worthy of notice that a very learned judge has thus expressed himself : " I conceive, that, if a man, having no knowledge whatever on 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 (c) 11 M. & W. 401. (dy Judgm., 11 M. & W. 415. 342 CONTRACTS GENERALLY. making the representation may have no knowledge of its falsehood, the representation may still have been fraudulently made " (c). Further, on a very recent occasion, it was ob- served, that " if persons take upon themselves to make assertions as to which they are ignorant whether they are true or untrue, they must, in a civil point of view, be held as responsible as if they had asserted that which they knew to be untrue ''(/). In the case here put, it would be impossible successfully to contend that no element of moral fraud presents itself As connected with the subject before us, the two following cases must be noticed : — In Comfoot v. Fuwke (gf) a principal was held irresponsible for a mis-statement innocently made by his agent without authority from himself The principal there sued for breach of contract, and on fraud being pleaded, obtained judgment, it being, as observed by Alderson, B., '" impossible to sustain a charge of fraud when neither principal nor agent has committed any ; the principal, because, though he knew the fact, he was not cognisant of the misrepresentation being made, nor ever directed the agent to make it; and the agent, because though he made a misrepresentation, yet he did not know it to be one at the time he made it, but gave his answer bond fide." In Udell V. Atherton (h) the action was ex delicto, founded on dolus dans locum contractui, producing damage, to which the defence, under a plea of Not Guilty, was that the fraud was that of the agent who made the contract, not of the defendant, the principal, who neither authorised nor knew of it (i) ; and without impugning the well-established («) Per Maule, J., Evans v. Ed- (/) Per Lord Cairns, Reese River monds, 13 0. B. 786 ; and in Milne t. Silver Mining Co. v. Smith, L. E. 4 H. Marwood, 15 Id. 781. See per Cress- L. 79-80. well, J., and Wilde, C. J., 6 0. B. (g) 6 M. & W. 358. 322; per Alderson, B., Moens v. (h) 7 H. & N. 172. Heyworth, 10 M. & W. 158. (i) Post, Book IIL, Chap. 1. CONTRACTS GENERALLY. 343 rule that " tlie principal is answerable for the act of an agent in the course of his business," the Court were equally divided in opinion as to the mode of applying that principle to the facts before them (k). But although it be a moot point, whether legal fraud can exist without any degree of moral delinquency, there can be no doubt, that, in the vast majority of cases involving fraud, trickery, or covin, which come under the cognisance of Courts of justice, no questions have to be discussed respect- ing the distinctions — sometimes rather fine and unsatisfac- tory — just adverted to. Fraud, it must however be observed, is not actionable nor available by way of defence to an action, unless, in the one case, it has occasioned damage to the complainant, or, in the other, has induced the defen- dant to contract. A bare lie, for instance, albeit told with an intent to injure, would not, if unproductive of damage, lay the foundation of an action {I), nor would a misrepresen- tation, however corruptly made, afford a good defence to an action founded upon contract, unless it were shown to have operated as an inducement to the defendant to enter into the alleged contract. The test proposed by Lord Brougham in Attwood v. Stnall (m), seems to be the most accurate and practically useful which can be given in reference to one large and important class of frauds — ^those, viz., which are evidenced by misrepresentations and mis-statements. In order to con- stitute such fraud, it is there said, three circumstances must combine : it must appear, 1st, that the representation was contrary to the fact ; 2ndly, that the party making it knew it to be contrary to the fact ; and, 3rdly, and chiefly, that it (i) Judgm., Barwich i. Englith 775 ; Milnev. Marwood,15 C. B. 778 ; Jnt. Stk. Bh., L. R. 2 Ex. 265. Burma v. Pv/rnell, 2 H. L. Oa. 529 (Z) Judgm., 2 M. & W. 531 ; per et seq. Moens v. Heyworth, 10 M. & BulUr, J., 3 T. R. 56. W. 147 ; Pasley v. Freeman, 2 Smith (m) 6 CI. & F. 444 ; per Lord Wena- L. C, 6tli ed., 71, and Note thereto. leydale, Smith v. Kay, 7 H. L, Ca. 344 CONTEACTS GENERALLY. was the false representation -which gave rise to the contract- ing of the other party — there must be dolus dans locum contractid, i. e., not merely a fraudulent attempt at over- reaching, but an attempt so far successful as to have operated as an inducement to the other party to contract. "We con- sider it clear law," remark the Court of Queen's Bench in Gerhard v. Bates (n), " that if A. fraudulently makes a repre- sentation which is false, and which he knows to be false, to B., meaning that B. shall act upon it, and B. believing it to be true, does act upon it, and thereby suffers a damage, B. may maintain an action on the case against A. for the deceit, there being here the conjunction of wrong and loss entitling the injured and suffering party to a compensation for damages." When the conditions thus indicated are fulfilled, there can be no doubt, that, according as the party on whom fraud has been practised is plaintiff or defendant, he may rely iipon it as ground of action or as matter of defence against the party who has practised it ; and in illustration of this remark the cases below cited may be consulted (o). Where damage is caused by an act primd facie savouring ■of false representation, an action of course will not lie, if no element of fraud, either legal or moral, enters into it. "If," it was judicially observed in Barley v. Walford (p), " every untrue statement which produces damage to another would found an action at law, a man might sue his neighbour for any mode of communicating erroneous information — such (») 2 B. & B. 488, citing Com. Dig. 319 ; Wontner v. Shairp, i C. B. 404 ; "Action upon the Case for a Deceit" Murray v. Mann, 2 Exch. 538 ; Vane (A. 9, 10). T. Cotbold, 1 Exch. 798 ; Pilmore v. (o) £ehn v. KemUe, 7 C. B., N. S., ffood, 5 Bing. N. C. 97, 109. See 260 ; per Williams, J., Wayy. Hearn, Atkinson v. Pocock, 1 Exch. 796 ; per 13 C. B., N. S., 306 ; OlarJcCY. JDich- Lord Denman, C. J., son, E. B. & E. 148; 6 C. B., N. S., Crookes, 1 Sc. N. R. 698; Connopv. 453 ; Scott t. Dickson, 29 L. J., Ex., Lem/, 11 Q. B. 769. 62 note ; Bedford v. Bagshaw, 4 H. & (p) 9 Q. B. 197, 208. N. 538 ; Jai-rett v. Kennedy, 6 C. B. CONTRA.CTS GENERALLY. 345 (for example) as having a conspicuous clock too slow — since plaintifif might be thereby prevented from attending to some duty or acquiring some benefit." A doctrine calculated to create legal responsibility so wide in cases where blame cannot really attach to any one must, they further observe, be restrained within some limits. " If, indeed, the defendant were under any legal obligation (q) to state the truth cor- rectly to the plaintiff, there would be a giievance in mislead- ing him, for which an action on the case would lie ; still more so, if he made the false representation with a view to some unfair advantage to himself" (r). It will have been noticed, that, in the course of the pre- ceding pages, I have had occasion repeatedly to specify an action on the case as the appropriate remedy for deceit or fraud productive of damage. Reference to this peculiar form of action will have, at greater length, to be made in Book III. of this work, which treats of Wrongs and Remedies ex Delicto ; a question of some interest here, however, demands a brief digression, viz., whether, in an action strictly founded upon contract, the Tnotive, which may have influenced the de- fendant, can properly be investigated. The result of this inquiry will show us why it is that case is the proper civil remedy for fraud and covin. Now, the breach of a contract, express or implied, executed or executory, per se, vests a right of action in the contractee, on the assumption, that is, that he has himself done every thing which it was incumbent on him to do towards or for the behoof of the other contracting party ; this being so, it can, as a general rule, be in no way material to make any inquiry as to the Tnotive which may have prompted the con- tractor to his breach of contract. If .A. covenants with B. to do or not to do a particular thing, and A. commits a breach of this covenant, he will, ipso facto, incur liability to B. for (a) Post, Book IIL, Chap. 1. (r) Judgm., 9 Q. E. 2&8. 34 (j CONTRACTS GENERALLY. all damage resulting directly from the breach ; and whilst, on the one hand, the excellence of his motive in doing or omitting to do the particular act cannot be allowed to avail him, so, on the other hand, any inquiry as to the existence of a malicious or fraudulent intention on his part to injure the covenantee, would, in an action founded on the breach of covenant, be wholly irrelevant. So, again, if goods supplied by A. to B., in pursuance of a contract of sale, prove to be inferior in quality, or do not correspond with the sample, A. will l»e liable, in an action of assumpsit, to make good the loss sustained, albeit he never even saw the specific goods supplied, and was ignorant of their condition or quality. Where an action " sounds in contract," then, the motive or animus of the defendant is " to be entirely disregarded, and the damages are strictly " to be " limited to the direct pecu- niary loss resulting from the breach of the agreement in question " (s). Such is no doubt the general rule with reference to actions ex contractu ; the rule there applies to restrict the parties at Nisi Prius to the production of evidence touching the breach of contract alleged in the declaration. Proof of fraud being excluded, the parties are limited to the discussion of the issue actually raised on the record. " No form of action," it has been observed by a learned writer (t), " has yet been devised for the fraudulent breach of an agreement." But in this case the complainant should, according to ordinary pre- cedents, frame his declaration, either on the breach of con- tract or on the fraud (u), unless indeed, as in Gerhard v. (s) Sedgw. Dam., 2nded., 204. It fraud, improperly introduced, may, how- is sufficient in this place to state the ever, be struck out of a declaration, general principle applicable in actions provided a good cause of action is still founded upon contract. Some modifi- apparent therein : per ParJee, B. , 8 cations of this principle will be speci- Exch. 730. See Hopkins t. Tanque- fled post. Chap. 6. ray, 15 C. B. 130, cited post, p. 352. (i) Sedgw. Dam., 2nd ed., 206. In cases of marine insurance any [u) An allegation of falsehood and material mis-statement or concealment CONTRACTS GENERALLY. 847 Bates (x), he think it desirable to eombiue with a count founded upon contract one framed in tort^ so as to meet either view of the case which may be established at the trial. In the great majority of cases, then, a charge of fraud cannot with propriety be introduced into a count founded upon con- tract. Neither can evidence of the defendant's fraud be ordinarily relevant in support of the plaintiff's case, save indeed where the action is brought to recover back money paid, on the express ground that the plaintiff was fraudulently induced to part with it, and has received no consideration for it. In such cases, however, proof of fraud is in truth given by way of answer to some defence anticipated from the other side, and does not in strictness itself furnish the gist and foundation of the action. Thus, if the action be for money had and received, or to recover back a deposit paid in conse- quence of some fraudulent statement put forth by the de- fendant as director of a projected company, the plaintiff here founds his right to recover upon the total failure of the con- sideration on which the payment was made (y) ; he has, how- ever, to meet the objection that the money in question was not "had and received to his (the plaintiff's) use," but was to be applied according to some express understanding between the defendant and himself (usually evidenced by the sub- scribers' agi-eement or deed of settlement of the company) — that the money was in fact received upon certain specific vitiates or renders voidable the contract; Russell v. Thornton, 6 H. & N. 340" and whether it be fraudulently made or 8. C, i Id. 78S. not is immaterial, except with reference Li an action for breach of promise of to the return of the premium : Ander- marriage it will not be a good defence son v. Thornton, 8 Exch. 425, 427 that the plaintiff had previously en- (with which compare Whedton v. Bar- gaged herself to another man : Beechey disty, 8 E. & B. 232, and Fowkes r. v. Brown, E. B. & E. 796. Manchester and LoTidon Life Ass. Co., (x) 2 E. & B. 476 cited ante p. 3 B. & S. 917, where the action was on 323. a life policy) ; Behn v. Bwrness, 3 B. (y) Walstab v. Spottiswoode, 15 M. & S. 751, reversing 8. C, 1 Id. 877 ; & W. 501. Holland v. Russell, 1 B. & S. 424 ; 348 CONTRACTS GENERALLY. trusts, -which either have been faithfully executed, or will hereafter be executed, pursuant to their terms. Anticipating this line of defence, the plaintiff meets it, if he can, by proof of fraud operating as an inducement to the execution of the deed, or to the signing of the agreement, and therefore in- validating it, and, perhaps, also operating as an inducement to the payment of the deposit money. Many cases of this kind, offering instances in great variety of circumstantial fraud, are to be found in our Eeports, of which Wontner v. Shairp (z) should especially be consulted. Without pursuing the digression which has been here ventured on, we may, perhaps, conclude that fraud can only come collaterally under notice in an action for breach of contract — that an action " sounding in tort " is the proper form of remedy for covin and deceit. Great care is often requisite in discriminating accurately between three classes of cases : — 1. Where fraud is involved. 2. Where a warranty (a) has been given. 3. Where a repre- sentation (b) or statement has been made, erroneous indeed, but neither fraudulent nor incorporated with the contract. As to the first of these three classes enough has been for the present said; it remains, therefore, to distinguish — 1st, breach of warranty from fraud ; and 2ndly, a mere representation from a waiTanty. Distinction Ist. By Way of illustration, let us take the case of a sale of breach of goods, and we shall at once see that the distinction between warranty and fraud. (z) 4 C. B. 40i ; ClarJee y. Dichson, object of it." PerLord.45m£rer, C. B., E. B. & E. 148 ; Watts v. Salter, 10 Chanter t. ffophms, 4 M. & W. 404, C. B. 477 ; Mowatt v. Lord Londes- adopted, per Martin, B., Azema/r v. borough, 3 E. & B. 307 ; Ward v. Casella, L. R. 2 C. P. 679. Lord Zondeshorougk, 12 C. B. 252 ; (4) "A representation is a statement and cases cited ante, p. 344, n. (o). or assertion made by one party to the (a) "A warranty is an express or other, before or at the time of the implied statement of something •which contract, of some matter or circran- the party undertakes shall be part of stance relating to it : " Judgm., Behn a, contract, and, though part of the v. Burness, 3 B. & S. 753. contract, yet collateral to the express CONTRACTS GENERALLY. 349 a warranty that a personal chattel is sound and a fraud in the sale of it is broad and manifest (c). If a man sell a horse to another, and expressly warrant him to be sound, the contract is broken if the horse prove otherwise (cf). The purchaser in such case relies upon the contract ; and it is immaterial to him whether the vendor did or did not know of the unsoundness of the horse. In either case he is entitled to recover all the damages which he has sustained by reason of the breach of that contract. " A warranty," says Lord Mansfield (e), ." extends to all faults known and unknown to the seller." Again, if the vendor say to the purchaser, " I do not know whether the horse is or is not sound, and therefore will not warrant him ; aU I can say is, that I have long owned him, and know of no unsoundness ; " here manifestly is no war- ranty, and, if the vendor spoke the truth, no fraud. If, how- ever, the vendee can show that the horse was unsound, that the vendor knew it to be so at the time of the sale, and that in consequence of the false representations made by him, the purchaser was defrauded, the vendor would be liable, not for a breach of a contract of warranty, for he made no such con- tract, but for making representations which he knew to be false. In such case the guilty knowledge of the vendor would constitute an essential ingredient in the fraud, and in an action against him should be both alleged and proved. To entitle the vendee to recover under such circumstances, his action must be founded — not upon a breach of a contract of warranty but — upon the fraud practised by the vendor, or. (c) The remarks ensuing in the text fects patent and known to the buyer are extracted from the judgment of must be taken to be excluded from the Waite, J., Bwrtholomew v. Buahndl, warranty: " per CocBrwm, C. J., Bur- 20 Day (U. S.) R. 275-6. See Wil- ges v. Wickham, 3 B. & S. 684 ; Leg. liams V. Swansea Sa/rhowr Trustees, Max., 4th ed., 761. 14 C. B., N. S., 845. (c) Stvart v. WilUns, 1 Dougl. 20. (d) But "in a contract of sale, eren Per Lord Brougham, 6 CI. & F. 444. in the case of an express warranty, de- 350 CONTRACTS GENERALLY. at least, there should be a count adapted to a charge of that nature (/). There is here to be noticed an impoi-tant distinction be- tween the case where a contract may be rescinded on account of fraud, and that in which it maybe rescinded on the ground of a difference in substance between the thing bargained for and that obtained. In the former case — " It is enough to show that there was a fraudulent representation as to any fart of that which induced the party to enter into the contract which he seeks to rescind ; but where there has been an innocent misrepresentation or misapprehension, it does not authorise a rescission, unless it is such as to show that there is a complete difference in substance between what was sup- posed to be and what was taken, so as to constitute a failure of consideration. For example, where a horse is bought under a belief that it is sound, if the purchaser was induced to buy by a fraudulent representation as to the horse's soundness, the contract may be rescinded. If it was induced by an honest misrepresentation as to its soundness, though it may be clear that both vendor and purchaser thought that they were dealing about a sound horse, and were in error', yet the purchaser must pay the whole price unless there was a war- ranty ; and even if there was a warranty, he cannot return the horse and claim back the whole price, unless there was a condition to that effect in the contract " (gr). In the case just put by way of illustration, the warranty (if any) is supposed to be express. Equally obvious, how- ever, is the distinction between fraud and the breach of an implied warranty. A warranty may be implied from the course and mode of dealing between parties. If A. orders B., a tradesman, to make an article well known in the trade. (/) Per Waite, J., 20 Day (U. S.) 587, citing Street v. Blay, 2 B. & Ad. K. 275-276. 456 ; Ship'a case, 2 De G. J. & S. (g) Judgm., Lord Kennedy v. Pa- 5ii. nama, r J contrasted works a merger ; operates by way of estoppel ; requires no ™*^ * o J JT J J r r J T. simple con- consideration to support it : will in some cases bind the heir *'''^*' of the covenantor or obligor ; and can only be discharged by an instrument under seal (i) or by the judgment of a Court of competent authority or by statute. A simple contract on the other hand, which fills the lowest rank amongst obliga- {d) Per Maule, J., Pontifex \. Wil- (g) Ante, p. 184. Unscm, 2 C. B. 361 ; ante, p. 379. (h) Post, Chap. 5, s. 2. (e) Ante, p. 391. (i) See Judgm., Frazer ». Jordwn, (f) Ante, p. 410. 8 E. & B. 309. 430 SPECIALTY CONTRASTED WITH SIMPLE CONTRACT. tions recognised in law, cannot, it is obvious, work a merger ; although it may operate as an admission, it does not, except in some peculiar cases (A;), act by way of estoppel (I). A simple contract does (usually (tti) ) require a consideration to support it (n) ; it will, as already stated (o), and as we shall hereafter see at greater lengt.h, bind the personal not the real — representative of the contractor. An executory con- tract not under seal may (even, as it seems, when required to be in writing by statute), be discharged by parol before breach {p). " It is competent," says Parke, B., in a recent case (q), " for both parties to an executory contract, by mutual agree- {k) For instance, a tenant is said to be " estopped " from denying liis land- lord's title. (See Judgm., Cutlibertson V. Irving, 4 H. & N. 754-5 ; S. C, Q Id. 135.) Delaney t. Fox, 2 C. B., N. S., 768 ; Watson v. Lane, 11 Exch. 769 ; per WUde, B., Duke v. Ashby, 7 H. & N. 602. An agent is not per- mitted to dispute the title of Ms prin- cipal in the subject-matter of the agency. (Story on Agency, 4th ed., p. 272.) And the doctrine of estoppel has also some application in regard to biUs of exchange and promissory notes. (Post, Chap. 3.) See Reg. t. Evans, 3 E. & B. 363. (Z) See Oamnam v. Farmet-, 3 Eich. 698 ; BaHlett v. Wells, 1 B. & S. 836, and cases there cited ; Graves v. Key, 3 B. & Ad. 313 (which shows that a receipt not under seal is an admission only). " The acts in pads, which bind par- ties iy 'vay of estoppel, are but few, and are pointed out by Lord Coke (Co. Litt. 352 a). They are all acts which anciently really were, and in contem- plation of law have always continued to be, acts of notoriety not less formal and solemn than the execution of a deed, such as livery, entry, acceptance of an estate, and the like. Whether a party had or had not concurred in an act of this sort was deemed a matter which there could be no difficulty in ascertaining, and then the legal conse- quences followed. " (Judgm., I/yon v. Feed, 13 M. & W. 309, cited NicMls V. Athersbme, 10 Q. B. 949.) Other instances of estoppel in pais will be adrerted to in Book III. of this work. See also Waller v. Draixford, 1 E. & B. 749 ; Andrews y. Mailes, 2 E. & B. 349, 353 ; Doe d. Croft t. Tidbury, 14 C. B. 304, 324 ; Taylor T. Best, 14 C. B. 487 ; Dunston t, Patersm, 2 C. B., N. S., 495; Wor- thington v. Svdlow, 2 B. & S. 508, 519. Estoppels bind parties and privies only, not strangers : Richards v. John- tton, 4 H. & N. 660. (m) See post, Chap. 3. (») Ante, pp. 308, 316. (o) Ante, p. 298. ip) See Taylor v. Hilary, 1 Cr. M. & R. 741. (j) Foster v. Dawler, 6 Exch. 851. King V. Gillett, 7 M. & W. 65, is im- portant with reference to the point here adverted to. See also Sarris v. Carter, 3 E. & B. 559 ; Davis v. Bomford, 6 H. & N. 245. SIMPLE CONTRACT— HOW DISCHARGED. 431 ment, without any satisfaction, to discharge the obligation of that contract." But the learned Judge proceeds to remark, that " an executed contract cannot be discharged except by- release under seal, or by performance of the obligation, as by payment, -where the obligation is to be performed by pay- ment " (r). Leave and licence cannot be pleaded to a decla- ration charging a breach of contract, the plea must allege an exoneration or discharge (s). To an action for breach of contract, " accord and satisfac- tion," if properly pleaded, -will also afford a good ground of defence (Q. Though, " it is clear if the claim be a liquidated and ascertained sum, payment of part cannot be satisfaction of the -whole, although it may, under certain circumstances, be evidence of a gift of the remainder. But the gift of a thing of uncertain value may be a satisfaction of any sum due on a simple contract. If the contract be by bond or covenant, it can be determined only by something of an equal or higher nature (u) ; but upon a mere simple con- tract it is clear, that the debtor may give anything of in- ferior value in satisfaction of the sum due, pi-ovided it be not part of the sum itself;" for "if the creditor had the money itself, he might buy with it a thing of however in- ferior value, and that contract would be good ; so he may accept the same thing in satisfaction of the whole sum, and that contract is good " {x). (r) Foster v. Dumber, supra. Wans', Stra. 426, is obserred upon ; («) Dobson V. jEjpie, 2 H. & N. 79. Grimsley v. Pa/rher, 3 Exch. 610, fol- (t) A vested right of action can only lowing TattersaU \. Parhinson, 16 M. be got rid of by a release or an accord & W. 752. See Oaskill v. Skene, 14 and satisfaction : per Williams, J., Q. B. 664 ; Thame v. Boast, 12 Q. B. Coohv. Lister, 13 C. B,, N. S., 587-8. 808 ; Beaumont v. Greathead, 2 C. B. (u) Ante, p. 298. Wilson v. Brad- 494 ; Goodwin v. Oremer, 18 Q. B. dyU, 9 Exch. 918 ; MippinghaU v. 757 ; Cook t. Hopewell, 11 Exch. 555. Lloyd, 5 B. & Ad. 742 ; cited per Pinnel's case, 5 Eep. 117, which BramweU, B., Kirk v. Gibbs, 1 H. & was an action of debt upon a bond, N. 814. is a leading authority on the above {x) Per ParJce, B., Sibree v. Tripp, srubject. 15 M. & W.- 33-4, where Dumber v. 432 SIMPLE CONTRACT— HOW DISCHARGED. The reason why, as just stated, part payment cannot be pleaded in satisfaction of a debt, is thus explained in the case of Sibree v. Tripp above cited : " It is undoubtedly true that payment of a portion of a liquidated demand, in the same manner as the whole liquidated demand ought to be paid, is payment only in part, because it is not one bargain but two, viz., payment of part, and an agreement without considera- tion to give up the residue." " But if you substitute for a sum of money a piece of paper or a stick of sealing-wax it is different, and the bargain may be carried out in its full integrity. A man may give in satisfaction of a debt of 1001. a horse of the value of 51., but not 51." If, however, the time or place of payment of the money given in satisfaction be different from that of the debt due, the smaller sum may be a satisfaction of the larger, ex. gr., "if, for money, yoii give a negotiable security, you pay it in a different way ; the security may be worth more or less, it is of uncertain value " (jj), and may therefore, in law, be an equivalent for a larger amount actually due. The withdrawal by defendant of a plea of infancy has been held to be a sufficient consideration for an agreement by the plaintiff to accept a smaller in satisfaction of a larger sum {£). And b}'- way of further illustrating this subject, since the decision in Good v. Cheesman (a), " the law," says Willia')7is, J., in Boyd v. Hind (b), " has been regarded as settled, that a composition agreement by several creditors, although by parol so as to be incapable of operating as a release, and although unexecuted so as not to amount in strictness to a satisfaction, will be a good answer to an action by a creditor for his original debt if he accepted the new agreement in {y) Per Alderson, B., Sibree v. cases, supra, n. (x). Tripp, 15 M. & W. 38 (where the (z) Oooper v. Parlcer, 14 C. B. 118 ; cases are collected); per Parlce, B., S. C, 15 C. B. 822. Curleww T. Clark, 3 Exch. 378. See (a) 2 B. & Aid. 328. also Lyth v. Aiilt, cited ante, p. 318 ; (6) 1 H. & N. 938, 947. Jonea v. SawJcins, 6 C. B. 142 ; and SIMPLE CONTRACT — HOW DISCHARGED. 433 satisfaction thereof; and that for such an agreement, there is a good consideration to each creditor, viz., the undertaking of the other compounding creditors to give up a part of their claim. But no such agreement can operate as a defence if made merely between the debtor and a single creditor ; the other creditors or some of them must also join in the agree- ment with the debtor, and with each other, for otherwise it would be a bare contract to accept a less sum in satisfaction of a greater, which would be invalid by reason of want of consideration for relinquishing the residue." Thus much as to the mode of discharging a parol contract at common law ; and now, assuming that the characteristics of a contract, special or simple, have been sufficiently exhi- bited, one question which may reasonably be supposed to have suggested 'itself yet remains to be answered : is a deed, under any, and if so, under what circumstances, indispensable to the validity of a transaction by our law 1 Without attempt- ing fully to answer this question, I may observe that there are certain transactions which at common law, and certain other transactions which by statute, are required to be evidenced by deed. At common law, no incorporeal right or heredita- Deed- when re- ment can be created or transferred otherwise than by deed : quisite ut ■^ common such a right is said to lie in grant and not in livery (c), and '*''• to pass by the mere delivering of the deed of grant or of assignment ; a right of common, for instance, which is a profit a prendre, or a right of way, which is an easement or (c) Incorporeal property is so termed other hand, ex. gr., houses and land, because it has no corpus, and is not is capable of actual and risible delivery tangible or visible, but exists only in and transfer, and is therefore said to legal contemplation. It may indeed lie in livery (meaning delivery of seisin produce something substantial and or possession) : Chitt. Gen. Pr. , vol. 1, beneficial to the owner, as in the in- p. 203. stance of the right to tithes ; but, By stat. 8 & 9 Vict. c. 106, a. 2, a being incapable of actual possession, corporeal hereditament " shall, as re- and passing by the mere deed of grant, gards the conveyance of the immediate it is therefore said to lie in grant. The freehold thereof, be deemed to lie in possession of corporeal property on the grant as well as in livery. " F F 434 DEED — WHEN REQUIRED AT COMMON LAW. right in nature of an easement, cannot be granted or con- veyed in fee simple, for life, or for years, without a deed (cZ). An auctioneer, accordingly, who is employed under a parol agi-eement to sell goods upon the premises of a third party, has no such interest in the goods as wiU make the license given him to enter upon the premises for the purpose of selling them irrevocable (e) ; and a license to an outgoing tenant to re-enter upon the demised premises in order to take away fixtures left there, will not, unless under seal, be a valid grant of such privilege as against an incoming tenant who was not party to the license (/). Again, at common law, an authority to an agent to execute a deed for his prin- cipal must itself be under seal (g). A corporation must in general contract by deed (h). A gift of a chattel inter vivos, if not perfected by delivery, must be evidenced by deed (i). And a mere verbal gift of a chattel to a person in whose pos- session it is does not pass any property in the chattel to the donee (k). " By the law of England," says Lord Tenter- den (T), " in order to transfer property by gift, there must either be a deed or instrument of gift (m), or there must be an actual delivery of the thing to the donee." (d) Wood -a LeadbitUr, 13 M. & W. 343. 838 (which is a leading case upon this (h) Post, Chap. 5, o. 1. subject) ; Adams t. Andrews, 15 Q. B, 284, 296 ; Sird r. Higginson, 6 Ad. & E. 824; S. C, 2 Ad. & E. 696 Thomas t. FredricTcs, 10 Q. B. 775 Williams v. Morris, 8 M. & W. 488, (i) Irons v. SmaUpieee, 2 B. & Aid. 551. A chattel may be mortgaged by parol : Flory t. Denny, 7 Exch. 581 (which shows that "there may be a mortgage of chattels, as distinguished See Smart t. Jones, 15 C. B., N. S., from a pledge, without delivery : " per 717. Williams, J., Maugham v. Sharpe, 17 (e) Tallin t. Florence, 10 C. B. C. B., N. S., 464). See Sarton t. 744. Gainer, 3 H. & N. 387. (/) Boffey ¥. Henderson, 17 Q. B. Qc) Shower v. Pilci:, 4 Exch. 478 ; 574. See Leader v. Homewood, 5 C. Sourne t. Foshrooke, 18 C. B., N. S., B., N. S., 546. 515, 524. (g) Harrison y. Jackson, 7 T. R. {I) Irons v. SmaUpieee, 2 B. & Aid. 207, 210 ; WUJcs v. Back, 2 East, 142 ; 552. See Congreve v. Evetts, 10 Bxch. Berhdey v. Hardy, 5 B. & C. 355 ; 298 ; Baker v. Gray, 17 0. B. 462. Judgm., Hunter v. Parker, 7 M. & W. (m) The expression here attributed DEED — WHEN REQUIRED BY STATUTE. 435 Under the statute law, the transfer of certain kinds of Deed— when re- property is expressly required to be by deed. For instance, J^^^^^ut^^ the Real Property Amendment Act (8 & 9 Vict. c. 106) pro- ^''• vides (s. 3), that a feoffment (unless made under a custom by an infant) shall be void at law if not evidenced by deed — that a partition, exchange (except of copyholds), or lease required by law to be in writing, an assignment of a chattel interest (not being copyhold), or a surrender in writing of an interest in any hereditament not being a copyhold and not being an interest which might by law have been created ■without writing, shall also be void at law unless made by deed (n). So under the Merchant Shipping Act (17 & IS Vict. c. 104), s. 55 (o), the transfer of any registered ship, or any share therein, to a person qualified to be owner of a British ship, is to be effected by bill of sale or instrument under seal, in the form given in the Schedule to the Act. And the statute in question likewise contains provisions (ss. 66, 73) regidating the mode of mortgaging a ship or any share therein, and of making a transfer of such mortgage, for either of which purposes a deed is expressly rendered necessary. It would be of little use, even did space permit, to enume- rate the various contracts, to the validity of which a deed or to the learned Judge seems to imply in Mope y. Hayley, 5 E. & B. 846), is that the assignment of a, chattel may "founded on the maidm, Nemo dat qui be effected by an instrument not under non habet : " per Willes, J. , Chidell r. seal — a proposition unsustainable by Galsworthy, 6 C. B., N. S., 478. See the authorities : see, per MavXe, J., Cairr v. AUatt, 27 L. J., Ex., 385. Jjmm T. Thornton, 1 C. B. 381-2, and As to the effect of a, grant of a chattel Note by Serjt. Manning, Id. 381 (d). by deed, see further, Siggers t. Emms, In OvMs Y. Han-iaon, 10 Exch. 575, 5 E. & B. 367 ; Reeve v. Whitmore, 33 Parke, B., observes, "It has been held L. J., Chanc, 63 ; S. C, 32 Id. 497. that a gift is not binding unless it be (») See Shelf. Real Prop. Stats., 7th by deed, or the subject of the gift be ed., pp. 619, 620. actually deliyered ; but if the point (o) As to which see Maude and P. were res nova it would perhaps be on Merch. Shipp., 2nd ed., p.. 21, decided differently." The decision in n. (c). Zunn V. Tlwmton, supra (recognised F F 2 436 DEED — ^WHEN REQUIRED BY STATUTE. a writing not under seal is rendered necessary by the statute law. When difficulty arises in regard to any contract or transaction regulated by statute, such difficulty must -be solved by reference to the precise words of the Legislature applicable to the particular case ; and general principles cannot, it is obvious, be deduced from special and arbitrary enactments. Upon this part of the subject, therefore, nothing further wiU here be said ; and, in the ensuing Chapter, I shall proceed to speak of certain contracts required for the most part to be in writing by the Law Merchant (p). ( p) In the preceding Chapter no re- amount, Mr. Tilsley's Treatise upon f erenoe has been made to the Stamp the Stamp Laws, with the Supplements Acts. Where any doubt occurs in re- thereto, may safely be consulted, gard to the necessity for a stamp or its CHAPTER III. NEGOTIABLE INSTRUMENTS (a). The term ' negotiable instrwment ' will here be used to Negotiable signify an instrument which may be transferred by assign — what. ment from one person to another, so as to vest a legal title to the property represented or secured by it and a right of action directly founded upon it in the transferee (h). Every ' negotiable ' instrument, accordingly, presents an exception to that general rule of our common law, which says, that ' choses in action' shall not be assignable (c). In order to understand the meaning and scope of this rule, some few remarks are necessary. In the first place, then, what is a ' chose in action ' ? This chose in aution — ' question may be answered by reference to the Termes de la ^iiat; Ley {d), where we read that a chose in action " is where a man hath cause or may bring an action for some duty due to him," as an action of debt upon an obligation, an action of (a) An elementary -riew merely has at common law, a dett cannot be as- in tHs cliapter been attempted of the signed so as to give the assignee a right subject above specified. The author to sue for it in his own name, except in has contented himself with exhibiting the case of a negotiable instrument." a brief outline of the law applicable to The other principle is, "that a bare it, and with pointing out from a multi- promise cannot be the foundation of an tude of oases those to which the atten- action — ex nudo pacto non oritur actio. '' tion of the student should specially be Again, in Noble v. National Discownt directed. Co., 5 H. & N. 228, Bramwdl, B., (5) See Webst. Diet, ad verb. " Ne- observes, "There is no doubt as to the law, that if one person is indebted to (c) In lAversidge v. Broadhent, 4 another he cannot become under an H. & N. 610, Martin, B., specifies obligation to a third party without the "two legal principles" which "have agreement of all three. " never been departed from. One is that, (d) Ed. 1708, p. 121. 438 NEGOTIABLE INSTRUMENTS. covenant, of trespass, or the like ; and, indeed, -wherever a thing is not in ^possession, but where, for recovery of it, a man is driven to Lis action (and consequently enjoys a right merely), such thing is called a chose i/n action. —not as- Now, it is to be observed, that, by an ancient maxim of the common law, a chose in action cannot be granted or transferred to a stranger, so as to enable the transferee to sue upon it at law (e). The policy of our law being, that main- tenance, suppression of right, and stii-ring up of suits may thus be avoided ; nothing in action or entry, says Sir E. Coke (/), " can be granted over, for so, under colour thereof, pretended titles might be granted to great men, whereby rights might be trodden down and the weak oppressed, which the common law forbiddeth." The rule which forbids the assignment of a chose in action applies generally as well to specialties as to simple contracts. Our law, observes a modern writer {g), " will not permit a person not privy to a contract to found a legal claim or remedy thereon in his own name by assignment from the pai-ty with whom the obligation was entered into. It will not permit a person to become the creditor of another, with- out his consent ; and the reason is, not only that there are wanting the mutuality and privity (A) essential to constitute a contract, but that oppression and unjust litigation would be encouraged, if persons — strangers to the stipulating party — (and with whom, perhaps, he would not have contracted) could purchase causes of suit, and divest the original creditor of his legal right of action " (i). " It is," accordingly, "a well (e) Supra, n. (c). Co. Litt. 266 a ; 308. per Maule, J., Tempest r. Kilner, 2 (/) Co. Litt. 214 a; Lampet's case, C. B. 308 ; Jones v. Ca/rter, 8 Q. B. 10 Rep. 48 a. 134, with which compare /omcs y. Ro- (g) Chitt., jun., on Bills, vol. 1, hmson, 1 Exch. 464. And see, per p. 30. Buller, J., Master v. Miller, i T. R. (h) Ante, pp. 305, 317. 340, 341 ; per Willcs, J., Salfow v. (i) It appears to be the duty of a Sea Fire, 521 no man could know what were his rights or duties, if they were to be determined by loose evidence of custom or usage (x). Notwithstanding the adverse opinions expressed by some eminent judges (y), in regard to the policy of admitting evidence of usage or custom to explain or vary [z) written instruments^ it will be collected from what has been thus far said, that evidence of usage may be offered for various pur- poses in connection with their interpretation. It may, for instance, in some cases be offered to annex incidents to them, to explain a particular word or phrase appearing therein, or to clear up and render definite and precise that which was indefinite and ambiguous. Confining my attention for a moment to the case of an ambiguoiis contract, we must remember that it rests with the plaintiff suing ex contractu, to set forth in his declaration with precision the agreement upon which he relies, and should he at the trial fail in establishing such an agreement, he may be nonsuited, or, at all events, may have to apply for leave to amend (a). Again, should the contract itself, {x) Berkshire Woollen Co. t. Proc- tra prof erentem :" Leg. Max., 4th ed., tm-, 7 CnsHng (U. S. ) E. 422 ; Judgm., p. 577. Be Stromd, 8 C. B. 531. But " if a declaration contains alle- iy) See, per Lord Denman, C. J., gations capable of teing imderstood in Trueman t. Loder, 11 Ad. & E. 597 ; two senses, and i£ understood in one per Story, J., Dommll v. ColvmUan sense it will sustain the action, and in Inswr. Co., 2 Sumn. (U. S.)B. 377; another it will not; after verdict it Judgm., Hvitom. Warren, 1 M. & W. must be construed in the sense which 475. will support the action:" per Lord As to Trueman t. Loder, supra, see Trwro, 13 0. B. 542. BaXe V. Humfrey, E. B. & E. 1004; "In pleading (except in deducing 8.C.,7'E. & B. 266, 277 ; Brown v. title), a deed may he set out, either in JByme, 3 E. & B. 703. its terms, leaving the Court to construe (e) The meaning of an instrument is, it according to the legal effect of those in truth, «aried by annexing a term to terms, or the party may take the re- it (ante, p. 512), even though such sponsibUity of stating it according to term be not inconsistent with anything the legal effect which it is contended to in the instrument. haye : " Judgm. , Lord Newborough, v. (a) It is moreoTer a rule, that "am- Schroder, 7 C. B. 397. biguum placitum interpretaxi debet con- Where a promise is ambiguous, it is 522 ; M* ' EVIDENCE OF CUSTOM OR USAGE ■which he then produces in evidence, be altogether ambiguous and meaningless, he will equally fail, because, as just observed, the onus is cast upon him of making out his right of action, and, further than this, of convincing the Court that the construction which he has put upon the particular contract in declaring, is the true one — all which he would have failed in doing if the matter were left at all doubtful. In an Anonymous case (b), illustrative of the foregoing remark, the juiy found that the contract produced to them was " quite unvatelligible ; " and the Judge was held justi- fied in ruling thereupon that the plaiutiff had failed to sustain his declaration. Boden v. French (c) may also be consulted upon this subject. There the plaintiff declared against the defendant, who was a coal factor, for a breach of contract in selling coals " otherwise than for ready money, to wit, at two months' credit." In order to sustain his action, the plaintiff produced a letter of instructions fi-om himself to the defendant, directing him to sell coal " at such price as would realise not less than per ton net cash." He proved also, that the coal in question had been sold at a credit of two months ; but it appeared to be customary in the coal trade to sell coal at such credit, unless it was sold on the wharf. The Court were of opinion that the letter of instructions was essentially ambiguous in its terms — ad- mitting of at least three different significations — -and that, regard being had to the usage proved at the trial, the mean- ing which the plaintiff himself had assigned to the instruc- tions was not the true one. In this case, accordingly, the plaintiff was nonsuited. to te construed " according to the sense 8. C, 3 E. & B. 307. in which the promisor must be supposed (5) Cited per 7e»T«s, C. J., 10 C. B. to wish and to believe that the promise 889. See Duncan v. Topham, 8 G. B. should be understood by the promisee ; " 225. Judgm., Mowatt v. Lord Londes- (c) 10 C. E. 886. horouffh, 23 L. J., Q. B., 177, 184; TO EXPLAIN WRITTEN CONTRACTS. 523 Although in the preceding chapter I have not attempted to enter generally upon an examination of even the leading rules of construction applicable to written contracts, I cannot at its conclusion forbear from laying before the student the following brief epitome of some of the rules alluded to — so worded as perchance, without much effort, to fix itself in the memory : — "The sages of the law," it has been said (d), "in the exposition of treaties, pacts, statutes, testaments, deeds, and other instruments, have used and handed down to us rules which are commended as the dictates of enlightened reason and common sense," whereof the following will suffice for the present, viz. — 1. That the construction be made on the entire instrument and that one part of it do help to expound another, and that every word (if it may be) may take effect, and none be rejected, and that all the parts do agree together, and there be no discordance therein — ex antecedentibus et consequen- iihus est optima vnterpretatio, for turpis est pars qucB cum suo tofo non convenit, maledicta expositio qucB corrumpit textum. 2. That the construction be such as that the whole and every part of it may take effect, and as much effect as may be for that piii-pose for which it was made (e). 3. To cavil about the words in subversion of the plain intent of the parties, is a malice against justice and the nurse of injustice (/). 4. A man ought not to rest on the letter only, nam qui hceret in literd hoeret in cortice, but he ought to rely upon the sense, which is the kernel and the fruit, whereas the . letter is but the shell (g). 5. Falsa orthographia, falsa gram/matica non vitiat [d) See arg., Uandon v. Toby, 11 (/) See ThrocJemerton t. Tracy, Howard (U. S.) R. 511. Plowd. 161. (c) Shepp. Touch. 87. (.9) Eyston t. StuM, Plowd. 467. 524: EVIDENCE OF CUSTOM OR USAGE, ETC. cartam vel concessionem ; nor the singular instead of the plural numher, nor the plural instead of the singular (h). 6. The office of a good expositor is to make construction on all the parts together of an instrument, and not of one part only by itself — neTno enirn aUquam partem recte vn- telligere poasit antequam totum iterum, atque iterumper- legerit (i). 7. Construction must be made in suppression of the mis- chief and in advancement of the remedy (A;). Should the construction proffered of an instrument be found to violate any of the rules above laid down, ex. gr., by dwelling upon a word only in disregard of the preceding and succeeding parts ; should it corrupt the text or go but skin • ■ ' * deep into its meaning, overlooking the general purport and effect of the writing — ^we may at once reject it as fallacious, as based on wrong principles, and as likely to fnastrate rather than effectuate the intention of the contracting parties. ^* (h) Ea/rl of Shrewsiwy's case, 9 b ; 8 Vin. Abr. 181. Eep. 48 a; Co. Litt. 146 b. (Jc) Co. Litt. 381 b. (i) Lincoln College case, 3 Eep. 59 'fH'^limmimS ^